Exhibit 10.5
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SECOND AMENDED AND RESTATED
CLASS A-2 NOTE PURCHASE AGREEMENT
Dated as of November 5, 2003
among
AMERICREDIT MASTER TRUST,
as Issuer
AMERICREDIT FUNDING CORP. VII
as a Seller,
AMERICREDIT FINANCIAL SERVICES, INC.,
as a Seller and as Servicer,
THE CLASS A-2 PURCHASERS PARTIES HERETO,
DEUTSCHE BANK TRUST COMPANY AMERICAS
Administrative Agent
DEUTSCHE BANK AG, NEW YORK BRANCH,
as an Agent,
and
THE OTHER AGENTS PARTIES HERETO
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Relating to
AmeriCredit Master Trust
Floating Rate Asset Backed Notes, Class A-2
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SECOND AMENDED AND RESTATED CLASS A-2 NOTE PURCHASE AGREEMENT, dated
as of November 5, 2003, by and among AMERICREDIT MASTER TRUST, a Delaware
statutory trust (the "Issuer") AmeriCredit Funding Corp. VII, a Delaware
corporation ("AFC"), individually and in its capacity as a seller (in such
capacity, a "Seller"), AMERICREDIT FINANCIAL SERVICES, INC., a Delaware
corporation ("AmeriCredit"), individually, in its capacity as a Seller (together
with AFC, the "Sellers") and in its capacity as servicer (in such capacity, the
"Servicer"), the CLASS A-2 PURCHASERS (as hereinafter defined) from time to time
parties hereto, DEUTSCHE BANK AG, a German banking corporation acting through
its New York Branch ("DBNY"), as an agent, and the other AGENTS for the
Purchaser Groups from time to time parties hereto (each such party, together
with their respective successors in such capacity, an "Agent"), and DEUTSCHE
BANK TRUST COMPANY AMERICAS, as administrative agent (together with its
successors in such capacity, the "Administrative Agent").
W I T N E S S E T H :
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WHEREAS, the Issuer, AFC, as a Seller, AmeriCredit, as a Seller and
Servicer, certain Class A-2 Purchasers, certain Agents, and DBNY, as an Agent
and as the initial Administrative Agent, are parties to a certain Amended and
Restated Class A-2 Note Purchase Agreement dated as of February 22, 2002 (the
"Existing Class A-2 Note Purchase Agreement");
WHEREAS, the parties hereto desire to amend and restate the Existing
Class A-2 Note Purchase Agreement in the manner, and on the terms and
conditions, herein provided;
WHEREAS, the Sellers, the Servicer, the Issuer and Bank One, NA, a
national banking association, as Backup Servicer (including its successors in
such capacity, the "Backup Servicer") and Trust Collateral Agent (including its
successors in such capacity, the "Trust Collateral Agent") are parties to the
Second Amended and Restated Sale and Servicing Agreement, dated as of November
5, 2003 (as the same may from time to time be amended, modified or otherwise
supplemented, the "Sale and Servicing Agreement");
WHEREAS, the Issuer, the Administrative Agent, the Trust Collateral
Agent and Bank One, NA, as Trustee (including its successors in such capacity,
the "Trustee") are parties to the Second Amended and Restated Indenture, dated
as of November 5, 2003 (as the same from time to time be amended, supplemented
or otherwise modified, the "Indenture");
WHEREAS, the Issuer proposes to issue and sell pursuant to the
Indenture its Class A-1 Floating Rate Asset Backed Notes (the "Class A-1
Notes"), Class A-2 Floating Rate Asset Backed Notes, (the "Class A-2 Notes"),
Class S Swingline Asset Backed Notes, (the "Class S Notes"), Class B Floating
Rate Asset Backed Notes (the "Class B Notes") and Class C Floating Rate Asset
Backed Notes (the "Class C Notes");
WHEREAS, the Issuer also proposes to issue pursuant to the Indenture
additional classes of notes to be designated as the Class D Asset Backed Notes
(the "Class D Notes") and Class E Asset Backed Notes (the "Class E Notes");
WHEREAS, Class E Notes are subordinate to each other class of Notes,
the Class D Notes are subordinate to the Class A-1 and A-2 Notes, the Class B
Notes, the Class S
Notes and the Class C Notes, the Class C Notes are subordinate to the Class A-1
and A-2 Notes and the Class B Notes and, as set forth in the Indenture, to the
Class S Notes, and the Class B Notes are subordinate to the Class A-1 and A-2
Notes and, as set forth in the Indenture, to the Class S Notes;
WHEREAS, the Issuer proposes to establish a Reserve Account (the
"Reserve Account") and a Collateral Account (the "Collateral Account") with the
Trustee pursuant to the terms of the Indenture for the benefit of the holders of
the Class A Notes, the Class S Notes, the Class B Notes and the Class C Notes;
WHEREAS, the Class A-2 Purchasers are willing to purchase the Class
A-2 Notes in the amount of the Class A-2 Initial Principal Balance (as defined
in the Indenture) on the Closing Date (as hereinafter defined) and from time to
time thereafter to advance Additional Class A-2 Principal Amounts (as defined in
the Indenture) on the terms and conditions provided for herein;
NOW THEREFORE, in consideration of the mutual covenants herein
contained, and other good and valuable consideration, the receipt and adequacy
of which are hereby expressly acknowledged, the parties hereto agree that the
Existing Class A-2 Note Purchase Agreement shall be amended and restated in its
entirety as follows:
ARTICLE 1 DEFINITIONS
1.1 Definitions. All capitalized terms used herein as defined terms
and not defined herein shall have the meanings given to them in Annex A to the
Sale and Servicing Agreement or the Indenture.
"Adjusted Commitment" shall mean on any date of determination, with
respect to a Committed Purchaser for a CP Conduit, such Committed Purchaser's
Commitment minus the sum of (a) the Class A-2 Principal Balance held by such
Committed Purchaser plus (b) the aggregate outstanding principal amount of its
Support Advances to such CP Conduit (but excluding any Support Advances made to
fund such CP Conduit's obligations to pay interest, fees or other similar
amounts relating to the funding of its making or maintaining its purchases
hereunder).
"Adjusted Eurodollar Rate" shall mean, for any Fixed Period, a rate
per annum (rounded upwards, if necessary, to the nearest 1/100th of 1%)
equivalent to the rate determined pursuant to the following formula:
LIBOR Rate
Adjusted Eurodollar Rate = --------------------------
1-LIBOR Reserve Percentage
on the first day of such Fixed Period.
"Administrative Agent" has the meaning specified in the preamble to
this Agreement.
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"AFC" has the meaning specified in the preamble to this Agreement and
includes any successor or permitted assignee thereof as provided in the
Indenture, the Sale and Servicing Agreement and this Agreement.
"Affected Party" shall mean, with respect to any CP Conduit, any
Support Party of such CP Conduit or any related Agent.
"Agent" has the meaning specified in the preamble to this Agreement.
"Agreement" shall mean this Class A-2 Note Purchase Agreement, as
amended, supplemented or otherwise modified from time to time.
"Alternative Rate" for any Borrowing means a rate per annum equal to
the Applicable LIBOR Spread per annum above the Adjusted Eurodollar Rate for
such Borrowing; provided, however, that in the case of
(a) any Fixed Period on or after the first day on which a Committed
Purchaser shall have notified the related Agent that the introduction of or
any change in or in the interpretation of any law or regulation makes it
unlawful, or any central bank or other governmental authority asserts that
it is unlawful, for such Committed Purchaser to fund such Borrowing at the
Alternative Rate set forth above (and such Committed Purchaser shall not
have subsequently notified such Agent that such circumstances no longer
exist),
(b) any Fixed Period of less than seven days,
(c) in the event the Adjusted Eurodollar Rate is not reasonably
available to any Agent for such a Fixed Period or does not adequately and
fairly reflect the cost to a Committed Purchaser of funding such Borrowing,
or
(d) any Fixed Period as to which the related Borrowing will not be
funded by issuance of commercial paper, as determined by the related Agent
(on behalf of a Noncommitted Purchaser) later than 12:00 noon (New York
City time) on the second Business Day preceding the first day of such Fixed
Period,
the "Alternative Rate" shall be a floating rate per annum equal to the Prime
Rate in effect on each day of such Fixed Period; provided, further, that the
Administrative Agent (with the consent of the Committed Purchasers) and the
Issuer may agree in writing from time to time upon a different "Alternative
Rate."
"AmeriCredit" has the meaning specified in the preamble to this
Agreement and includes any successor or permitted assignee thereof as provided
in the Indenture, the Sale and Servicing Agreement and this Agreement.
"Applicable LIBOR Spread" shall mean, with respect to a Purchaser
Group, the rate identified as its "Applicable LIBOR Spread" in the Supplemental
Fee Letter to which the Agent for such Purchaser Group is a party.
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"Assignee" and "Assignment" have the respective meanings specified in
subsection 8.1(e) of this Agreement.
"Borrowing Notice" shall mean a notice, substantially in the form of
Exhibit D, delivered by the Issuer to the Administrative Agent and each Agent
pursuant to Section 12.6(a) of the Indenture and subsection 2.1(c) of this
Agreement, requesting an advance of an Additional Class A-2 Principal Amount.
"Class A-2 Average Principal Balance" shall mean, with respect to any
period, the sum of the Class A-2 Principal Balances for each of the days during
such period, divided by the number of days in such period.
"Class A-2 Commitment Fee" has the meaning specified in subsection
2.3(c) of this Agreement.
"Class A-2 Commitment Fee Rate" shall be .525%.
"Class A-2 Facility Limit" shall mean, for any day, the lesser of the
Class A Borrowing Base and the Total Commitment on such day.
"Class A-2 Mandatory Partial Amortization Amount" shall mean, with
respect to a Partial Expiration Event, the sum of (i) the aggregate Percentage
Interests of all Committed Purchasers which became Nonextending Class A-2
Purchasers upon the occurrence of such Partial Expiration Event, times the Class
A-2 Principal Balance on the date on which such Partial Expiration Event
occurred, plus (ii) for each such Committed Purchaser, such Committed
Purchaser's Liquidity Percentage times its related CP Conduit's Percentage
Interest of the Class A-2 Principal Balance on the date on which such Partial
Expiration Event occurred, in each case after giving effect to all purchases of
and payments in respect of the Class A-2 Principal Balance occurring through and
including such date.
"Class A-2 Monthly Costs and Expenses" shall mean on any date of
determination any amounts then due and payable by the Issuer or either Seller
(determined without regard to limitations on the sources of payment thereof)
pursuant to this Agreement, other than Class A-2 Monthly Interest and Fees and
the Class A-2 Principal Balance.
"Class A-2 Monthly Interest and Fees" shall mean, for any Interest
Period, the sum of (i) interest on the Class A-2 Principal Balance for the
Interest Period ended on the related Distribution Date computed pursuant to
subsection 2.3(a) or 2.3(b), as applicable, plus or minus (as the case may be)
(ii) any Estimated Interest Adjustment for the immediately preceding Interest
Period, plus (iii) the Class A-2 Usage Fee with respect to such Interest Period,
plus (iv) the Class A-2 Commitment Fee with respect to such Interest Period.
"Class A-2 Owners" shall mean the Class A-2 Purchasers that are owners
of record of the Class A-2 Notes or, with respect to any Class A-2 Note held by
an Agent hereunder as nominee on behalf of Class A-2 Purchasers in a Purchaser
Group, the Class A-2 Purchasers that are beneficial owners of such Class A-2
Note as reflected on the books of such Agent in accordance with this Agreement
and the Related Documents.
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"Class A-2 Principal Balance" shall mean, with respect to any date, an
amount equal to the excess of (a) the sum of (i) the Class A-2 Initial Principal
Balance, plus (ii) the aggregate principal amounts of any Additional Class A-2
Principal Amounts advanced pursuant to Section 12.6(a) of the Indenture, over
(b) the aggregate amount of any principal payments made to Class A-2 Owners
pursuant to the Sale and Servicing Agreement and the Indenture through and
including such date.
"Class A-2 Purchasers" shall mean, collectively, the CP Conduits and
the Committed Purchasers.
"Class A-2 Notes" has the meaning specified in the recitals to this
Agreement.
"Class A-2 Usage Fee" has the meaning specified in subsection 2.3(c)
of this Agreement.
"Class A-2 Usage Fee Rate" shall mean the applicable rate or rates
identified as the "Class A-2 Usage Fee Rate" in the Supplemental Fee Letter
entered into on the Initial Closing Date between the Issuer and the
Administrative Agent, for the benefit of, among others, the Class A-2
Purchasers.
"Collateral Receipt" means a Custodian's Acknowledgment in the form of
Schedule A to the Custodian Agreement.
"Commercial Paper Notes" shall mean, with respect to a CP Conduit, the
short-term promissory notes or extendable money market notes issued by such CP
Conduit which are allocated by such CP Conduit as its funding for its purchasing
or maintaining its Percentage Interest of the Class A-2 Principal Balance
hereunder.
"Commercial Paper Rate" shall mean, with respect to a CP Conduit, the
rate identified as its "Commercial Paper Rate" in the Supplemental Fee Letter to
which such CP Conduit or its Agent is a party.
"Commitment" shall mean, for any Committed Purchaser, the maximum
amount of such Class A-2 Purchaser's commitment to purchase a portion of the
Class A-2 Principal Balance, as set forth on Schedule I hereto or the Transfer
Supplement or Joinder Supplement by which such Committed Purchaser became a
party to this Agreement or assumed the Commitment (or a portion thereof) of
another Class A-2 Purchaser, as such amount may be adjusted from time to time
pursuant to Section 2.2 of this Agreement or pursuant to Transfer Supplement(s)
executed by such Class A-2 Purchaser and its Assignee(s) and delivered pursuant
to Section 8.1 of this Agreement. In the event that a Committed Purchaser which
maintains a portion of its Commitment hereunder in relation to more than one CP
Conduit, such Class A-2 Purchaser shall be deemed to have issued separate
Commitments hereunder in each such capacity.
"Commitment Termination Date" shall mean, with respect to a Committed
Purchaser, November 5, 2006, as such date may be extended by such Committed
Purchaser from time to time in accordance with subsection 2.2(c) hereof.
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"Committed Purchaser" shall mean, with respect to a CP Conduit, each
Class A-2 Purchaser identified as a Committed Purchaser for such CP Conduit on
the signature pages hereto or in the Transfer Supplement or Joinder Supplement
pursuant to which such CP Conduit became a party hereto, and any Assignee of
such Class A-2 Purchaser to the extent such Assignee has assumed, pursuant to a
Transfer Supplement, the Commitment of such Class A-2 Purchaser.
"Conduit Borrower" shall mean an entity which is designated as a
Conduit Borrower on the signature pages hereto or in the Transfer Supplement or
Joinder Supplement pursuant to which it became a party to this Agreement, which
entity will fund its purchases of Class A-2 Notes hereunder by borrowing from a
specified financing conduit.
"CP Conduit" shall mean any Class A-2 Purchaser which is designated as
a CP Conduit on the signature pages hereto or in the Transfer Supplement or
Joinder Supplement pursuant to which it became a party to this Agreement;
provided, however, that if the entity signing this Agreement or such Transfer
Supplement or Joinder Supplement specifies on the related signature page that it
is a Conduit Borrower with respect to a financing conduit identified on such
signature page, then, with respect to such Class A-2 Purchaser, "CP Conduit"
shall mean, collectively, such Conduit Borrower and such specified financing
conduit.
"CP Conduit Consolidation Event" shall mean the occurrence of any of
the following events (i) the Securities and Exchange Commission, any banking
regulatory authority or any other official body having jurisdiction over any
Committed Purchaser or Agent or any of the Affiliates of such Committed
Purchaser or Agent, shall require the consolidation of the assets and
liabilities of any CP Conduit on the balance sheet of such Committed Purchaser,
Agent or Affiliate, or shall require that capital be maintained with respect
thereto under any capital requirements as if such assets were owned by such
Committed Purchaser, Agent or Affiliate, (ii) the independent auditors for any
such Committed Purchaser, Agent or Affiliate shall have advised such Committed
Purchaser, Agent or Affiliate in writing that in their opinion such
consolidation is required by GAAP or applicable law, rule or regulations, (iii)
any Affected Party shall determine that any arrangement or transaction
contemplated by this Agreement or any Related Documents will impose any adverse
regulatory impact on such Affected Party, including, without limitation, any
cost or expense described in Section 2.4 hereof; or (iv) any CP Conduit shall
determine that it may be required to register as an investment company under the
Investment Company Act of 1940, as amended.
"DBNY" has the meaning specified in the preamble to this Agreement.
"Dissenting Purchaser" has the meaning specified in subsection 2.2(c)
of this Agreement.
"Downgraded Purchaser" has the meaning specified in subsection 8.1(j)
of this Agreement.
"Election Period" has the meaning specified in subsection 2.2(c) of
this Agreement.
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"Estimated Interest Adjustment" has the meaning specified in
subsection 2.3(i) of this Agreement.
"Excluded Taxes" has the meaning specified in subsection 2.5(a) of
this Agreement.
"Fixed Period" means with respect to any Borrowing (or portion
thereof):
(a) the period commencing on the date of the initial funding of such
Borrowing (or such portion) and ending such number of days thereafter as
the Issuer shall select in accordance with Section 2.3(b); and
(b) thereafter, each period commencing on the last day of the
immediately preceding Fixed Period for such Borrowing (or such portion) and
ending such number of days thereafter as the Issuer shall then select in
accordance with Section 2.3(b);
provided, however, that:
(i) any Fixed Period in respect of which interest on the Class
A-2 Notes is computed by reference to the Alternative Rate shall be a
period of from one to and including 29 days (if reasonably available
to the Agents), or a period of one month (or such longer period as is
agreed to by the Issuer and the Agents), as the Issuer may select by
written notice to the Agents furnished not later than 12:00 noon (New
York City time) on the second Business Day preceding the first day of
such Fixed Period;
(ii) any such Fixed Period (other than a Fixed Period consisting
of one day) that would otherwise end on a day that is not a Business
Day shall be extended to the next succeeding Business Day (unless the
related Borrowing shall be accruing interest at a rate determined by
reference to the LIBOR Rate, in which case if such succeeding Business
Day is in a different calendar month, such Fixed Period shall instead
be shortened to the next preceding Business Day);
(iii) in the case of Fixed Periods of one day, (A) the initial
Fixed Period shall be the day of the initial funding of such
Borrowing, and (B) any subsequently occurring Fixed Period that is one
day shall, if the immediately preceding Fixed Period is more than one
day, be the last day of such immediately preceding Fixed Period, and
if the immediately preceding Fixed Period is one day, shall be the
next day following such immediately preceding Fixed Period;
(iv) if any Fixed Period for any Borrowing that commences before
the Stated Maturity Date would otherwise end on a date occurring after
the Stated Maturity Date, such Fixed Period shall end on the Stated
Maturity Date and the duration of each such Fixed Period that
commences on or after the Stated Maturity Date or the date on which
the payment of principal on the Notes has been accelerated, if any,
shall be of such duration as shall be selected by the Agents; and
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(v) if the Alternative Rate becomes applicable to any Borrowing
previously funded at the Commercial Paper Rate or if the Alternative
Rate applicable to any Borrowing changes from the Adjusted Eurodollar
Rate to the Prime Rate, the Fixed Period previously selected for such
Borrowing shall terminate and the Fixed Period for such Borrowing
shall be that selected by the Issuer by written notice to the Agents
after it receives notice of such change.
"Governmental Authority" shall mean any nation or government, any
state or other political subdivision thereof and any entity exercising
executive, legislative, judicial, regulatory or administrative functions of or
pertaining to government.
"Indemnitee" has the meaning specified in subsection 2.6(a) of this
Agreement.
"Indenture" has the meaning specified in the recitals to this
Agreement.
"Interest Period" shall mean, with respect to any Distribution Date,
the period from and including the Distribution Date immediately preceding such
Distribution Date (or, in the case of the first Distribution Date, from and
including the Closing Date) to but excluding such Distribution Date.
"Interest Rate Determination Date" shall mean, for any Interest
Period, the Business Day immediately preceding the Determination Date for such
Interest Period.
"Investing Office" shall mean initially, the office of any Class A-2
Purchaser (if any) designated as such, on the signature pages hereto or in the
Transfer Supplement or the Joinder Supplement by which it became a party to this
Agreement, and thereafter, such other office of such Class A-2 Purchaser or such
Assignee as may be designated in writing to the applicable Agent, the
Administrative Agent, the Servicer and the Trustee by such Class A-2 Purchaser
or Assignee.
"Joinder Supplement" means an agreement among one or more Class A-2
Purchasers, the Issuer, AmeriCredit, an Agent and the Administrative Agent in
the form of Exhibit C hereto (appropriately completed).
"LIBOR Rate" shall mean, with respect to any Fixed Period, the rate
per annum shown on Telerate Page 3750 as the composite offered rate for London
interbank deposits for a period equal to such Fixed Period, as shown under the
heading "USD" as of 11:00 a.m., London time, two Business Days prior to the
first day of such Fixed Period; provided that in the event no such rate is
shown, the LIBOR Rate shall be the rate per annum based on the rates at which
Dollar deposits for a period equal to such Fixed Period are displayed on page
"LIBOR" of the Reuters Monitor Money Rates Service or such other page as may
replace the LIBOR page on that service for the purpose of displaying London
interbank offered rates of major banks as of 11:00 a.m., London time, two London
Business Days prior to the first day of such Fixed Period (it being understood
that if at least two such rates appear on such page, the rate will be the
arithmetic mean of such displayed rates); provided further that in the event
fewer than two such rates are displayed, or if no such rate is relevant, the
LIBOR Rate shall be a rate per annum at which deposits in Dollars are offered by
the principal office of Deutsche Bank AG in London, England to prime banks in
the London interbank market at 11:00 A.M. (London time) two
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Business Days before the first day of such Fixed Period for delivery on such
first day and for a period equal to such Fixed Period.
"LIBOR Reserve Percentage" shall mean, with respect to any Fixed
Period, a percentage (expressed as a decimal) equal to the weighted average of
the percentages in effect during such Interest Period, as prescribed by the
Board of Governors of the Federal Reserve System (or any successor thereto) for
determining the maximum reserve requirements applicable to "Eurocurrency
liabilities" pursuant to Regulation D or any other applicable regulation of the
Federal Reserve Board (or any successor thereto) which prescribes reserve
requirements applicable to "Eurocurrency liabilities" as currently defined in
Regulation D.
"Liquidity Percentage" shall mean, for a Committed Purchaser for a CP
Conduit, such Committed Purchaser's Adjusted Commitment with respect to such CP
Conduit as a percentage of the aggregate Adjusted Commitments of all Committed
Purchasers for such CP Conduit.
"Majority Class A-2 Owners" shall mean, at any time, Class A-2 Owners
having more than 51% of the aggregate Percentage Interests of all Class A-2
Owners.
"Majority Class A-2 Purchasers" shall mean, at any time, Committed
Purchasers having Commitments aggregating more than 51% of the Total Commitment.
"Maximum Purchase Amount" shall mean, for any CP Conduit, the
aggregate Commitments of its Committed Purchasers, as set forth on Schedule I.
"Nonextending Class A-2 Purchaser" shall mean, after its respective
Commitment Termination Date, each Committed Purchaser which has declined to
extend such Commitment Termination Date in accordance with subsection 2.2(c)
hereof.
"Partial Expiration Event" has the meaning specified in subsection
2.2(c) of this Agreement.
"Participant" has the meaning specified in subsection 8.1(d) of this
Agreement.
"Participation" has the meaning specified in subsection 8.1(d) of the
Agreement.
"Percentage Interest" shall mean, as to any Class A-2 Purchaser at any
time of determination, the percentage equivalent of a fraction the numerator of
which shall be an amount equal to the portion of the unpaid principal amount of
the Class A-2 Principal Balance owing to such Class A-2 Purchaser (or, if no
amount of the Class A-2 Principal Balance is outstanding, the amount of its
Commitment, if any) at such time (after giving effect to all Assignments
effective on or prior to such time of determination) and the denominator of
which shall be an amount equal to the aggregate Class A-2 Principal Balance (or,
if no amount of the Class A-2 Principal Balance is outstanding, the Total
Commitment) at such time.
"Permitted Transferee" shall mean (i) each Class A-2 Purchaser, each
Support Party, each Agent (in its individual capacity), the Administrative Agent
(in its individual capacity) and, with respect to each transferring Class A-2
Purchaser, any commercial paper
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conduit administered by the related Agent, (ii) each other Person who has been
consented to as a potential Transferee by the Sellers (which consent shall not
be withheld (except for a commercially reasonable purpose or reason) or delayed)
and (iii) after the occurrence of an Event of Default, any other Person.
"Prime Rate" shall mean, for any day, a fluctuating rate of interest
per annum equal to the higher of: (i) a fluctuating rate of interest per annum
equal to the "Prime Rate" most recently published in the Wall Street Journal and
described as "the base rate on corporate loans posted by at least 75% of the
nation's 30 largest banks", and (ii) 0.50% above the rate per annum at which
Deutsche Bank AG, New York Branch, as a branch of a foreign bank, in its
reasonable discretion, can acquire federal funds in the interbank overnight
federal funds market, through brokers of recognized standing or otherwise, as
most recently determined by Deutsche Bank AG, New York Branch. The Prime Rate is
not necessarily intended to be the lowest rate of interest determined by
Deutsche Bank AG or Deutsche Bank AG, New York Branch, in connection with
extensions of credit.
"Purchase Date" shall mean the Closing Date and each Borrowing Date.
"Purchase Termination Date" shall mean, for each Class A-2 Purchaser,
the earliest to occur of (i) the Commitment Termination Date for such Purchaser
or, with respect to a Class A-2 Purchaser which is a CP Conduit, the first date
on which Commitment Termination Dates for all its Committed Purchasers have
occurred, (ii) the date of any termination of the Total Commitment, in whole, by
the Issuer pursuant to Section 2.2 and (iii) the effective date on which the
Commitments are terminated or deemed terminated pursuant to Section 2.8.
"Purchaser Group" shall mean each group of Class A-2 Purchasers
consisting of (i) a CP Conduit, and (ii) the Committed Purchasers with respect
to such CP Conduit. The initial Class A-2 Purchaser Group shall be the Gemini
Purchaser Group, which shall consist of Gemini Securitization Corp., as the CP
Conduit, and DBNY, as the Committed Purchaser. The Agent for the Gemini
Purchaser Group shall be DBNY.
"Purchaser Percentage" shall mean, with respect to a CP Conduit, its
Maximum Purchase Amount as a percentage of the Total Commitment.
"Regulatory Change" shall mean, as to each Class A-2 Purchaser, any
change occurring after the date of the execution and delivery of this Agreement
or, if later, the date of the execution and delivery of the Transfer Supplement
or the Joinder Supplement by which it became party to this Agreement; in the
case of a Participant, any change occurring after the date on which its
Participation became effective, or in the case of a Support Party, any change
occurring after the date it became such a Support Party, in any (or the adoption
after such date of any new):
(i) United States Federal or state law or foreign law
applicable to such Class A-2 Purchaser, Participant or Support Party; or
(ii) regulation, interpretation, directive, guideline or request
(whether or not having the force of law) applicable to such Class A-2
Purchaser, Participant or Support Party of any court or other judicial
authority or any Governmental Authority
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charged with the interpretation or administration of any law referred to in
clause (i) or of any fiscal, monetary or other Governmental Authority or
central bank having jurisdiction over such Class A-2 Purchaser, Participant
or Support Party.
"Related Documents" shall mean, collectively, this Agreement
(including all effective Supplemental Fee Letters, Transfer Supplements, and
Joinder Supplements), the other Note Purchase Agreements, the Indenture, the
Sale and Servicing Agreement, the Notes, and all supplements, agreements and
instruments related thereto.
"Replacement Purchaser" has the meaning specified in subsection
2.5(d).
"Required Class A-2 Owners" shall mean, at any time, Class A-2 Owners
having more than 66-2/3% of the aggregate Percentage Interests of all Class A-2
Owners.
"Required Class A-2 Purchasers" shall mean, at any time, Committed
Purchasers having Commitments aggregating more than 66-2/3% of the Total
Commitment.
"Requirement of Law" shall mean, as to any Person, any law, treaty,
rule or regulation, or determination of an arbitrator or Governmental Authority,
in each case applicable to or binding upon such Person or to which such Person
is subject, whether federal, state or local (including usury laws, the Federal
Truth in Lending Act and Regulation Z and Regulation B of the Board of Governors
of the Federal Reserve System).
"Reserve Account" has the meaning specified in the recitals to this
Agreement.
"Sale and Servicing Agreement" has the meaning specified in the
recitals to this Agreement.
"Supplemental Fee Letter" shall mean each letter agreement, designated
therein as a Supplemental Fee Letter and then in effect, between the Sellers and
an Agent, as such letter agreement may be amended or otherwise modified from
time to time.
"Support Advances" shall mean, with respect to a Committed Purchaser
and its related CP Conduit, any participation held by such Committed Purchaser
in such CP Conduit's Percentage Interest in the Class A-2 Principal Balance
which was purchased from such CP Conduit pursuant to a Support Facility and any
loans or other advances made by such Committed Purchaser to such CP Conduit
pursuant to a Support Facility to fund such CP Conduit's making or maintaining
its purchases hereunder.
"Support Facility" shall mean any liquidity or credit support
agreement with a CP Conduit which relates to this Agreement (including any
agreement to purchase an assignment of or participation in Class A-2 Notes).
"Support Party" shall mean any other bank, insurance company or other
financial institution extending or having a commitment to extend funds to or for
the account of a CP Conduit (including by agreement to purchase an assignment of
or participation in Class A-2 Notes or by swap agreement) under a Support
Facility. Each Committed Purchaser for a
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CP Conduit (other than a Committed Purchaser which is also a CP Conduit) shall
be deemed to be a Support Party for such CP Conduit.
"Taxes" has the meaning specified in subsection 2.5(a) of this
Agreement.
"Telerate Page 3750" shall mean the display page currently so
designated on the Bridge Telerate Markets Report (or such other page as may
replace that page on that service or any service which is a successor thereto
for the purpose of displaying comparable rates or prices).
"Termination Date" shall mean the first date on which the Purchase
Termination Date for all Class A-2 Purchasers has occurred.
"Termination Event" shall mean:
(a) the occurrence of any Event of Default or Servicer Termination
Event or the occurrence of an event or condition which would be an Event of
Default or Servicer Termination Event but for a waiver of such event by the
Noteholders or the Trustee (unless waived by the Required Class A-2 Owners and
Required Class A-2 Purchasers);
(b) any breach on the part of the Issuer, AFC, either Seller,
AmeriCredit or the Servicer of any representation or warranty made or deemed
made in this Agreement, which breach continues unremedied for a period of 30
days after the earlier of the date on which the Issuer, AFC, such Seller,
AmeriCredit or the Servicer, as the case may be, shall have had actual knowledge
of such breach and the date on which written notice thereof, requiring the same
to be remedied, shall have been given to the Issuer, AFC, such Seller,
AmeriCredit or the Servicer, as the case may be, by the Administrative Agent,
Required Class A-2 Owners or Required Class A-2 Purchasers; provided, however,
that a Termination Event shall be deemed not to have occurred under this clause
(b) with respect to a breach of a representation or warranty made or deemed made
in this Agreement with respect to a Receivable if the Seller has accepted
reassignment of such Receivable in accordance with the terms and conditions of
the Sale and Servicing Agreement;
(c) any failure on the part of the Issuer, AFC, either Seller,
AmeriCredit or the Servicer duly to observe or perform in any material respect
any of the covenants or agreements on its part to be observed or performed
contained in this Agreement (other than as provided in clauses (a) or (b) above)
which continues unremedied for a period of 30 days after the earlier of the date
on which the Issuer, AFC, such Seller, AmeriCredit or the Servicer, as the case
may be, shall have had actual knowledge of such breach and the date on which
written notice thereof, requiring the same to be remedied, shall have been given
to the Issuer, AFC, such Seller, AmeriCredit or the Servicer, as the case may
be, by the Administrative Agent, Required Class A-2 Owners or Required Class A-2
Purchasers.
"Total Commitment" shall mean, on any date of determination, the
aggregate Commitments of the Committed Purchasers.
"Transfer" has the meaning specified in subsection 8.1(c) of this
Agreement.
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"Transfer Supplement" has the meaning specified in subsection 8.1(e)
of this Agreement.
"Transferee" has the meaning specified in subsection 8.1(c) of this
Agreement.
"Trustee" has the meaning specified in the recitals to this Agreement.
"written" or "in writing" (and other variations thereof) shall mean
any form of written communication or a communication by means of telex,
telecopier device, telegraph or cable.
1.2 Other Definitional Provisions.
(a) Unless otherwise specified therein, all terms defined in this
Agreement shall have the defined meanings when used in any certificate or other
document made or delivered pursuant hereto.
(b) The words "hereof", "herein", and "hereunder" and words of
similar import when used in this Agreement shall refer to this Agreement as a
whole and not to any particular provision of this Agreement; and Section,
subsection and Exhibit references are to this Agreement, unless otherwise
specified. The words "including" and "include" shall be deemed to be followed by
the words "without limitation".
ARTICLE 2 AMOUNT AND TERMS OF COMMITMENTS
2.1 Purchases.
(a) On and subject to the terms and conditions of this Agreement, on
the Closing Date each initial CP Conduit may, in its sole discretion, purchase
its Purchaser Percentage of the Class A-2 Initial Principal Balance for a
purchase price equal to the portion the Class A-2 Initial Principal Balance so
purchased.
(b) (i) On and subject to the terms and conditions of this Agreement
and prior to the related Purchase Termination Date, each CP Conduit may, in its
sole discretion, purchase its Purchaser Percentage of any Additional Class A-2
Principal Amount offered for purchase pursuant to Section 12.6(a) of the
Indenture and subsection 2.1(c) hereof.
(ii) Subject to the provisions of Section 2.1(g) hereof and so long as
the related Swingline Borrowing was funded in compliance with the terms of
Section 12.6(b) of the Indenture, the Committed Purchasers agree to make
purchases of Additional Class A-2 Principal Amounts on or prior to the related
Commitment Termination Date to refund Swingline Borrowings and/or to purchase
participations in Swingline Borrowings in accordance with Section 12.6(b) of the
Indenture. The obligation of Committed Purchaser to so purchase Additional Class
A-2 Principal Amounts and/or participations in Swingline Borrowings pursuant to
Section 12.6(b) of the Indenture shall be absolute, irrevocable and
unconditional, and not be affected by any circumstance, including (i) any
set-off, counterclaim, recoupment, defense or other right which such Committed
Purchaser or the Issuer may have against the Class S Noteholders, the Issuer,
either Seller, the Servicer, the Trustee, the Administrative Agent or any
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other Person for any reason whatsoever, (ii) the occurrence or continuance of
any Default or Event of Default (including the occurrence of any Insolvency
Event with respect to the Issuer), (iii) any Borrowing Base Deficiency or any
adverse change in the Collateral or in the condition (financial or other) of the
Issuer, either Seller or the Servicer, (iv) any breach of the Indenture or any
Basic Document by the Issuer, either Seller, the Servicer, the Trust Collateral
Agent, the Custodian, the Backup Servicer, the Administrative Agent or the
Trustee, (v) the failure of the conditions set forth in Section 3.2 of this
Agreement to have been or to be satisfied, or (vii) any other circumstance,
happening or event whatsoever, whether or not similar to any of the foregoing.
Any purchase of a participation in a Swingline Borrowing shall be deemed to
increase the Class A-2 Principal Balance for purposes of this Agreement.
(c) Each purchase of any Additional Class A-2 Principal Amount
hereunder on the applicable Borrowing Date shall be in accordance with the
provisions of Section 12.6(a) of the Indenture upon delivery of a Borrowing
Notice by the Issuer to the Administrative Agent received no later than 11:00
a.m., New York City time, at least one Business Day prior to such Borrowing
Date, and the Administrative Agent shall give notice of any such Borrowing to
the related Agents by telecopier before 2:00 p.m., New York City time, on the
day it receives notice from the Issuer. Each Borrowing Notice shall (i) identify
the relevant Borrowing Date, (ii) set forth the Additional Class A-2 Principal
Amount which is requested from the Class A-2 Purchasers on such Borrowing Date
and the desired duration of the Fixed Period for such Additional Class A-2
Principal Amount, (iii) specify an account in the United States to which payment
for the purchase price of such Additional Class A-2 Principal Amount is to be
made, and (iv) certify that the applicable conditions to the purchase of such
Additional Class A-2 Principal Amount contained in Section 3.2 hereto have been
satisfied. Each Borrowing Notice shall be irrevocable and shall specify an
Additional Class A-1 Principal Amount, an Additional Class A-2 Principal Amount,
an Additional Class B Principal Amount and/or an Additional Class C Principal
Amount which, except in the case of borrowings the proceeds of which are used to
repay Swingline Borrowings, in the aggregate equal at least $50,000,000 and in
an integral multiple of $1,000,000. The Issuer may not deliver more than two
Borrowing Notices hereunder or under the Class A-1 Purchase Agreement, Class B
Purchase Agreement or the Class C Purchase Agreement in any calendar week. The
Administrative Agent shall promptly forward a copy of each Borrowing Notice
received by it to each Agent and each Class A-2 Purchaser.
(d) Each CP Conduit shall notify the Agent for its Purchaser Group by
10:00 a.m., New York City time, on the applicable Purchase Date whether it has
elected to make the purchase offered to it pursuant to subsection 2.1(a) or
2.1(b) of this Agreement. In the event that a CP Conduit shall not have timely
provided such notice, such CP Conduit shall be deemed to have elected not to
make such purchase. Such Agent shall notify each Committed Purchaser for such CP
Conduit on or prior to 11:00 a.m., New York City time, on the applicable
Purchase Date if such CP Conduit has not elected to purchase its entire
Purchaser Percentage of the Class A-2 Initial Principal Balance or the
Additional Class A-2 Principal Amount, as the case may be, which notice shall
specify (i) the identity of such CP Conduit, (ii) the portion of the Class A-2
Initial Principal Balance or the Additional Class A-2 Principal Amount, as the
case may be, which such CP Conduit has not elected to purchase as provided
above, and (iii) the respective Liquidity Percentages of such Committed
Purchasers on such Purchase Date (as determined by such Agent in good faith; for
purposes of such determination, such Agent shall be entitled to rely
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conclusively on the most recent information provided by such CP Conduit or its
agent or by the agent for its Support Parties). Subject to receiving such notice
and to the satisfaction of the applicable conditions set forth in Article 3
hereof, each of such CP Conduit's Committed Purchasers shall make a purchase of
Class A-2 Notes on the applicable Purchase Date in an amount equal to its
Liquidity Percentage of the portion of the Class A-2 Initial Principal Balance
or the Additional Class A-2 Principal Amount, as the case may be, which such CP
Conduit has not elected to purchase, for a purchase price equal to its share of
the Class A-2 Initial Principal Balance or the Additional Class A-2 Principal
Amount, as applicable, so purchased.
(e) Each Class A-2 Purchaser's purchase price payable pursuant to
subsection 2.1(a), 2.1(b) or 2.1(d) of this Agreement shall be made available to
the Agent for its Purchaser Group, subject to the fulfillment of the applicable
conditions set forth in Article 3 hereof, at or prior to 2:00 p.m., New York
City time, on the applicable Purchase Date, by deposit of immediately available
funds to an account of such Agent specified in subsection 9.2(b) of this
Agreement. Such Agent shall promptly notify the Servicer in the event that any
Class A-2 Purchaser either fails to make such funds available to such Agent
before such time or notifies such Agent that it will not make such funds
available to such Agent before such time. Subject to (i) such Agent's receipt of
such funds and (ii) the fulfillment of the applicable conditions set forth in
Article 3 hereof, as determined by such Agent, such Agent will not later than
4:00 p.m., New York City time, on such Purchase Date make such funds available,
in the same type of funds received, by wire transfer thereof to the account in
the United States specified by the Issuer in the applicable Borrowing Notice or,
in the case of the purchase on the Closing Date, specified in writing by the
Issuer to such Agent not later than the Business Day prior to the Closing Date.
(f) In the event that notwithstanding the fulfillment of the
applicable conditions set forth in Article 3 hereof with respect to a purchase,
a CP Conduit elected to make a purchase on a Purchase Date but failed to make
its purchase price available to the Agent for its Purchaser Group when required
by subsection 2.1(e) of this Agreement, such CP Conduit shall be deemed to have
rescinded its election to make such purchase, and neither the Issuer nor any
other party shall have any claim against such CP Conduit by reason of its
failure to timely make such purchase. In any such case, such Agent shall give
notice of such failure not later than 2:30 p.m., New York City time, on the
Purchase Date to each Committed Purchaser for such CP Conduit and to the Issuer
and the Servicer, which notice shall specify (i) the identity of such CP
Conduit, (ii) the amount of the purchase which it had elected but failed to make
and (iii) the respective Liquidity Percentages of such Committed Purchasers on
such Purchase Date (as determined by such Agent in good faith; for purposes of
such determination, such Agent shall be entitled to rely conclusively on the
most recent information provided by such CP Conduit or its agent or by the agent
for its Support Parties). Subject to receiving such notice, each of such CP
Conduit's Committed Purchasers shall purchase a portion of the Class A-2
Principal Balance in an amount equal to its Liquidity Percentage of the amount
described in clause (ii) above at or before 4:00 p.m., New York City time, on
such Purchase Date and otherwise in accordance with subsection 2.1(d) of this
Agreement. Subject to such Agent's receipt of such funds, such Agent will not
later than 5:00 p.m., New York City time, on such Purchase Date make such funds
available, in the same type of funds received, by wire transfer thereof to the
account of the Issuer described in subsection 2.1(e) of this Agreement, which
payment shall be deemed to be timely for purposes of the Indenture.
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(g) In no event shall a Committed Purchaser be required on any date
to purchase an Additional Class A-2 Principal Amount or a participation in
Swingline Borrowings which would result in its Percentage Interest of the Class
A-2 Principal Balance, determined after giving effect to such purchase,
exceeding its Commitment. In no event may any Additional Class A-2 Principal
Amount be offered for purchase hereunder or under Section 12.6(a) of the
Indenture, nor shall any Class A-2 Purchaser be obligated to purchase any
Additional Class A-2 Principal Amount, to the extent that, after giving effect
to such Additional Class A-2 Principal Amount, the Class A-2 Principal Balance
would exceed the Class A-2 Facility Limit.
2.2 Reductions and Extensions of Commitments.
(a) At any time the Issuer may, upon at least two Business Days'
prior written notice to the Administrative Agent, reduce the Total Commitment.
Each partial reduction shall be in an aggregate amount of $25,000,000 or
integral multiples of $5,000,000 in excess thereof (or such other amount
requested by the Issuer to which the Administrative Agent consents). Reductions
of the aggregate Commitments pursuant to this subsection 2.2(a) of this
Agreement shall be allocated (x) to the Maximum Purchase Amount of each CP
Conduit, pro rata based on the Purchaser Percentage represented by such Maximum
Purchase Amount, and (y) to the aggregate Commitments of Committed Purchasers
for each CP Conduit pro rata based on their respective Liquidity Percentages,
provided that if the Commercial Paper Notes of any CP Conduit are not rated at
least A-1 or the equivalent by any two of S&P, by ▇▇▇▇▇'▇ and ▇▇▇▇▇ Rating
Services, the Issuer may allocate a non-pro rata portion of any such reduction
to the Maximum Purchase Amount of such CP Conduit and may allocate a non-pro
rata portion of any such reduction to the Commitment of any Committed Purchaser
for such CP Conduit which is a Downgraded Purchaser (it being understood that
the Issuer will allocate any reduction of the Maximum Purchase Amounts of any CP
Conduit pro rata according to its Maximum Purchase Amounts, if any, under each
of the Class A-1 Note Purchase Agreement, the Class A-2 Note Purchase Agreement,
the Class B Note Purchase Agreement and the Class C Note Purchase Agreement).
(b) On the Purchase Termination Date for a Committed Purchaser, the
Commitment of such Class A-2 Purchaser shall be automatically reduced to zero.
(c) So long as no Termination Event has occurred and is continuing,
the Issuer may request, through the Administrative Agent, that each Class A-2
Purchaser consent to an extension of the Commitment Termination Date for such
period as the Issuer may specify (the "Extension Length"), which decision will
be made by each Class A-2 Purchaser in its sole discretion, provided that on the
date of the effectiveness of any such extension, and after giving effect to such
extension, the Commitment Termination Date will not be more than three years
from such date. Upon receipt of any such request, the Administrative Agent shall
promptly notify each Agent thereof, which shall notify each Class A-2 Purchaser
in its Purchaser Group thereof. Not more than 60 days following the date of a
request for an extension (such 60-day period, the "Election Period"), each Class
A-2 Purchaser shall notify the Agent for its Purchaser Group of its willingness
or refusal to so consent to an extension of the Commitment Termination Date, and
such Agent shall notify the Issuer and the Administrative Agent of such
willingness or refusal by each Class A-2 Purchaser not later than the Business
Day following the last day of the Election Period. Any Class A-2 Purchaser which
notifies the applicable Agent of its refusal to
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consent to the extension or which does not expressly notify such Agent that it
is willing to consent to an extension of the Commitment Termination Date during
the applicable Election Period shall be deemed to be a (x) Nonextending Class
A-2 Purchaser after the Commitment Termination Date then in effect (such
occurrence, unless such Nonextending Class A Purchaser is replaced pursuant to
subsection 2.2(d) of this Agreement or unless the Purchase Termination Date
shall have occurred, a "Partial Expiration Event") and (y) "Dissenting
Purchaser" from the date of its refusal notice or the end of the applicable
Election Period. If a Class A-2 Purchaser has agreed to extend its Commitment
Termination Date, and, at the end of the applicable Election Period no
Termination Event shall have occurred, the Commitment Termination Date for such
Class A-2 Purchaser then in effect shall be extended to the date which is the
Extension Length after its then current Commitment Expiration Date.
(d) Within two Business Days following the end of an Election Period,
the Agent for each Purchaser Group shall notify each other Class A-2 Purchaser
in such Purchaser Group, the Administrative Agent, the Issuer and the Servicer
of the identity of any Dissenting Purchaser and the amount of its Commitment, if
any. Any of such Agent, the Issuer or, if the Dissenting Purchaser is a
Committed Purchaser, the affected CP Conduit, may (but shall not be required to)
request one or more other Class A-2 Purchasers in such Purchaser Group, with the
consent of the Agent (which shall not be unreasonably withheld) and, if the
Dissenting Purchaser is a Committed Purchaser, the affected CP Conduit in its
sole discretion, or seek another financial institution reasonably acceptable to
such Agent and, if the Dissenting Purchaser is a Committed Purchaser acceptable
to the affected CP Conduit in its sole discretion, to acquire all or a portion
of the Commitment of the Dissenting Purchaser and all amounts payable to it
hereunder and under the Sale and Servicing Agreement and the Indenture in
accordance with Section 8.1 of this Agreement. Each Dissenting Purchaser hereby
agrees to assign all or a portion of its Commitment and the amounts payable to
it hereunder and under the Sale and Servicing Agreement and the Indenture to a
replacement investor identified by the Agent for its Purchaser Group in
accordance with the preceding sentence, subject to ratable payment of such
Dissenting Purchaser's Percentage Interest of the Class A-2 Principal Balance,
together with all accrued and unpaid interest thereon, and a ratable portion of
all fees and other amounts due to it hereunder.
(e) If a Partial Expiration Event shall have occurred, the Issuer
shall give a notice pursuant to Section 10.4 of the Indenture to cause a Limited
Amortization Period to commence with the first Collection Period after the
applicable Commitment Termination Date, and shall specify with respect to such
Limited Amortization Period a Class A Limited Amortization Amount at least equal
to the related Class A-2 Mandatory Partial Amortization Amount.
2.3 Interest, Fees, Expenses, Payments, Etc.
(a) Interest shall accrue on the Class A-2 Principal Balance during
each Interest Period at the following rates:
(i) Each CP Conduit's Percentage Interest of the Class A-2
Principal Balance shall bear interest on each day during each Interest
Period at a rate per annum
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equal to such CP Conduit's Commercial Paper Rate for such day, except as
otherwise provided in clause (ii) below.
(ii) If and to the extent that, and only for so long as, a CP
Conduit at any time determines in good faith that it is unable to raise or
is precluded or prohibited from raising, or that it is not advisable to
raise, funds through the issuance of Commercial Paper Notes in the
commercial paper market of the United States to finance its purchase or
maintenance of its Percentage Interest of the Class A-2 Principal Balance
or any portion thereof (which determination may be based on any allocation
method employed in good faith by such CP Conduit), including by reason of
market conditions or by reason of insufficient availability under any of
its Support Facilities or the downgrading of any of its Support Parties,
upon notice from such CP Conduit to the Agent for its Purchaser Group and
the Administrative Agent, such portion of such CP Conduit's Percentage
Interest of the Class A-2 Principal Balance shall bear interest at a rate
per annum equal to the Alternative Rate, rather than as otherwise
determined pursuant to clause (i) above.
(iii) Each Committed Purchaser's (other than a Committed
Purchaser which is a CP Conduit) Percentage Interest of the Class A-2
Principal Balance shall bear interest for each Interest Period at a rate
per annum equal to the Alternative Rate.
(b) The Issuer shall select the duration of the initial and each
subsequent Fixed Period relating to each Borrowing subject to the limitations
set forth in the definition of Fixed Period. The Issuer shall give the
Administrative Agent and each Agent written notice of such selections (i) with
respect to each initial Fixed Period, in the related Borrowing Notice and (ii)
with respect to each subsequent Fixed Period, in a notice in the form of Exhibit
E hereto, delivered prior to 11:00 a.m., New York City time, on the day before
the first day of such Fixed Period, provided that if the Issuer shall fail to
deliver any such notice, it shall be deemed to have selected a Fixed Period of
one day. Unless consented to by each Agent, the aggregate number of Fixed
Periods for all Borrowings outstanding at any one time hereunder shall not
exceed 10. (A CP Conduit may issue Commercial Paper Notes with such maturities
as it determines in its sole discretion regardless of the Fixed Period selected
by the Issuer.)
(c) The Class A-2 Purchasers shall be entitled to be paid, as a part
of Class A-2 Monthly Interest and Fees payable on each Distribution Date, (i) a
fee (the "Class A-2 Usage Fee") in the aggregate amount equal to the Class A-2
Average Principal Balance for the immediately preceding Interest Period times a
rate per annum equal to the Class A-2 Usage Fee Rate, plus (ii) a fee (the
"Class A-2 Commitment Fee") in the aggregate amount equal to (A) the Total
Commitment times (B) a rate per annum equal to the Class A-2 Commitment Fee
Rate. In addition, the Issuer agrees to pay to the Administrative Agent, for the
account of itself or the Agents and Class A-2 Purchasers, as the case may be,
the amounts set forth in Section 1 of the Supplemental Fee Letter entered into
on the Closing Date between the Issuer and the Administrative Agent at the times
specified therein.
(d) The principal of and Class A-2 Monthly Interest and Fees in
respect of the Class A-2 Notes shall be paid as provided in the Sale and
Servicing Agreement and the Indenture. In the case of Class A-2 Notes held by an
Agent as agent for members of its Purchaser Group, such Agent shall allocate to
the Class A-2 Owners in its Purchaser Group each
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payment in respect of the Class A-2 Notes received by such Agent in its capacity
as Class A-2 Noteholder as provided herein. Payments in reduction of the portion
of the Class A-2 Principal Balance evidenced by a Class A-2 Note shall be
allocated and applied to Class A-2 Owners of such Class A-2 Note pro rata based
on their respective Percentage Interests of the Class A-2 Principal Balance, or
in any such case in such other proportions as each affected Class A-2 Purchaser
may agree upon in writing from time to time with such Agent and the Issuer;
provided that from and after the occurrence of a Partial Expiration Event until
the earlier to occur of (i) the Purchase Termination Date and (ii) the date on
which (A) the aggregate amount of payments in reduction of the Class A-2
Principal Balance made after the date of the occurrence of the related Partial
Expiration Event equals (B) the related Class A-2 Mandatory Partial Amortization
Amount, payments in reduction of the portion of the Class A-2 Principal Balance
shall be allocated and applied to Nonextending Class A-2 Purchasers and related
CP Conduits pro rata based on their respective shares of the Class A-2 Principal
Balance which were used to determine such Class A-2 Mandatory Partial
Amortization Amount. Payments of interest in respect of the portion of the Class
A-2 Principal Balance evidenced by a Class A-2 Note shall be allocated and
applied to Class A-2 Owners of such Class A-2 Note pro rata based upon the
respective amounts of interest due and payable to them, determined as provided
above in subsection 2.3(a). Payments of the Class A-2 Usage Fee shall be
allocated and paid to Class A-2 Owners pro rata based upon their respective
interest in the Class A-2 Principal Balance for the applicable Interest Period.
Payments of the Class A-2 Commitment Fee shall be allocated and paid to the
Agent for each Purchaser Group pro rata based on the aggregate Commitments of
the Class A-2 Purchasers in such Purchaser Group. Each Class A-2 Purchaser in a
Purchaser Group shall be entitled to receive the share of the Class A-2
Commitment Fee allocated to such Purchaser Group as may be agreed upon from time
to time between such Class A-2 Purchaser and the Agent for such Purchaser Group.
(e) Any principal, interest (including interest payable pursuant to
this clause (e)), fees or other amounts due and payable hereunder (without
regard to any limitations set forth herein on the sources from which such amount
may be paid) which are not paid to the Administrative Agent or the Agents, as
the case may be, prior to the times set forth in Section 2.3(g) on the due date
thereof (whether due pursuant to acceleration or otherwise) shall accrue
interest (after as well as before judgment) at the Prime Rate from time to time
in effect plus 2.0% per annum from and including the due date thereof to but
excluding the date such amount is actually paid. Accrued and unpaid interest in
respect of overdue Class A-2 Monthly Interest and Fees, shall be payable as a
part of Class A-2 Monthly Interest and Fees on each Distribution Date. Any
overdue principal, any accrued and unpaid interest payable pursuant to this
subsection 2.3(e) in respect of overdue fees or other amounts not described in
the preceding sentence shall be payable on demand and in any event on each
Distribution Date by the party obligated to pay such overdue amount.
(f) Unless otherwise specified in an applicable Supplemental Fee
Letter, interest calculated by reference to the Commercial Paper Rate or the
Adjusted Eurodollar Rate shall be calculated on the basis of a 360-day year for
the actual days elapsed. Interest calculated by reference to the Prime Rate
shall be calculated on the basis of a 365- or 366-day year, as applicable, for
the actual days elapsed. Class A-2 Usage Fees, Class A-2 Commitment Fees and
other periodic fees or amounts payable hereunder shall be calculated, unless
otherwise specified in the Supplemental Fee Letter, on the basis of a 360-day
year and for the actual days elapsed.
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(g) All payments to be made hereunder or under the Sale and Servicing
Agreement or the Indenture, whether on account of principal, interest, fees or
otherwise, shall be made without setoff or counterclaim in United States dollars
and in immediately available funds and shall be made (x) in the case of payments
due on an Interim Distribution Date, prior to 2:30 p.m., New York City time, on
the due date thereof to each Agent at its account specified on the signature
pages hereof or as otherwise directed pursuant to subsection 9.2(b) hereof, and
(y) in the case of all other payments, including payments due on Distribution
Dates, prior to 12:00 noon, New York City time, on the due date thereof to the
Administrative Agent at its account specified in subsection 9.2(b) hereof.
Payments received by an Agent or the Administrative Agent after 2:30 p.m., New
York City time, shall be deemed to have been made on the next Business Day. The
Administrative Agent will distribute such payments received by it to the Agents
promptly upon receipt, but no later than 2:00 p.m., New York City time, on the
day received if such payment is received prior to 12:00 noon, New York City
time, and no later than noon, New York City time, on the Business Day after such
payment is received if received after 12:00 noon, New York City time.
Notwithstanding anything herein to the contrary, if any payment due hereunder
becomes due and payable on a day other than a Business Day, the payment date
thereof shall be extended to the next succeeding Business Day and interest shall
accrue thereon at the applicable rate during such extension. To the extent that
(i) the Trustee, the Issuer or the Servicer makes a payment to the
Administrative Agent or an Agent or Class A-2 Purchaser or (ii) the
Administrative Agent or an Agent or Class A-2 Purchaser receives or is deemed to
have received any payment or proceeds for application to an obligation, which
payment or proceeds or any part thereof are subsequently invalidated, declared
to be fraudulent or preferential, set aside or required to be repaid to a
trustee, receiver or any other party under any bankruptcy or insolvency law,
state or Federal law, common law, or for equitable cause, then, to the extent
such payment or proceeds are set aside, the obligation or part thereof intended
to be satisfied shall be revived and continue in full force and effect, as if
such payment or proceeds had not been received or deemed received by the
Administrative Agent or such Agent or Class A-2 Purchaser, as the case may be.
(h) If its Percentage Interest of the Class A-2 Principal Balance
then exceeds zero, each CP Conduit shall notify the Agent for its Purchaser
Group at or before 4:00 p.m. on the date on which the Alternative Rate becomes
applicable to its Percentage Interest of the Class A-2 Principal Balance or a
portion thereof pursuant to subsection 2.3(a)(ii) of this Agreement, of the
applicability thereof. Each CP Conduit shall notify such Agent at or before 4:00
p.m., New York City time, on each Interest Rate Determination Date of (x) the
estimate of the interest payable to such CP Conduit for the Interest Period
ending on the succeeding Distribution Date (such notification may be based on
such CP Conduit's good faith estimate of the Commercial Paper Rate if the actual
rate is not then known to such CP Conduit) and (y) the amount of any variation
between interest payable to such CP Conduit for the preceding Interest Period
based on such notices and estimates and interest which should have been payable
to such CP Conduit for such Interest Period based on its final determination of
the Commercial Paper Rate for such Interest Period. The amount of any shortfall
in interest based on such variation shall be included in the portion of Class
A-2 Monthly Interest and Fees payable to such CP Conduit on the following
Distribution Date, and the amount of any overpayment of interest to such CP
Conduit based on such variation shall be credited, dollar for dollar, against
the portion of Class A-2 Monthly Interest and Fees otherwise payable to such CP
Conduit for the following Interest Period. Each determination by a CP Conduit of
its applicable Commercial Paper Rate
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pursuant to this Agreement shall be conclusive and binding on the Class A-2
Purchasers, each Agent, the Administrative Agent, the Issuer, the Servicer and
the Trustee in the absence of manifest error.
(i) If the Percentage Interest of the Class A-2 Principal Balance of
a CP Conduit then exceeds zero, the Agent for its Purchaser Group shall notify
the Issuer and the Servicer before 4:00 p.m. on the date on which the
Alternative Rate becomes applicable to the Percentage Interest of the Class A-2
Principal Balance of such Class A-2 Purchaser in such Purchaser Group (or a
portion thereof) pursuant to subsection 2.3(a)(ii) of this Agreement, of the
occurrence thereof. On each date on which the Alternative Rate is applicable to
any portion of the Class A-2 Principal Balance and the Adjusted Eurodollar Rate
or the Prime Rate changes, the Administrative Agent shall notify the Issuer and
the Servicer of the Alternative Rate and the Prime Rate, if then applicable to
any portion of the Class A-2 Principal Balance. For such purposes, the Agents
may rely conclusively on notices from CP Conduits as to the interest rate or
rates from time to time applicable to their respective Percentage Interest of
the Class A-2 Principal Balance. Each Agent shall notify the Administrative
Agent on or before each Interest Rate Determination Date of (x) the interest
payable to the Class A-2 Purchasers in its Purchaser Group for the Interest
Period ending on the succeeding Distribution Date (such notification from an
Agent may be based on each CP Conduit's notices and estimates of the Commercial
Paper Rate as provided to such Agent pursuant to subsection 2.3(h) hereof) and
(y) the amount of any variation between the amount of interest payable on the
Percentage Interest of the Class A-2 Principal Balance of Class A-2 Purchasers
in its Purchaser Group based on notices and estimates delivered pursuant to this
subsection 2.3(i) and the actual amount thereof for the preceding Interest
Period. The amount of any shortfall in interest based on such variation shall be
a positive "Estimated Interest Adjustment" for such Interest Period, and the
amount of any overpayment of interest based on such variation shall be a
negative "Estimated Interest Adjustment" for such Interest Period. Any positive
Estimated Interest Adjustment for an Interest Period shall be deemed not due on
the Distribution Date for such Interest Period, but shall be due on the
Distribution Date related to the next succeeding Interest Period and in any
event on the final Distribution Date for Class A-2 Notes. An Estimated Interest
Adjustment shall not bear interest, unless not paid when due as provided in the
preceding sentence. Each determination of the Commercial Paper Rate, the
Alternative Rate and the Prime Rate by the Administrative Agent or an Agent
pursuant to any provision of this Agreement shall be conclusive and binding on
the Class A-2 Purchasers, the Issuer, the Administrative Agent, the Servicer and
the Trustee in the absence of manifest error.
(j) On the Business Day prior to each Interim Distribution Date, each
Class A-2 Purchaser shall notify the Agent for its Purchaser Group, and each
Agent shall notify the Administrative Agent, of the amount of interest accrued
and unpaid on the portion of the Class A-2 Principal Balance held by such Class
A-2 Purchaser or Purchaser Group, as the case may be, which is scheduled to be
repaid on such Interim Distribution Date.
(k) Notwithstanding anything contained herein or in the Supplemental
Fee Letter, from and after the occurrence of a Termination Event, whether or not
declared, the Class A-2 Principal Balance shall accrue interest (after as well
as before judgment) at the Prime Rate from time to time in effect plus 2.0%.
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2.4 Requirements of Law.
(a) In the event that any Class A-2 Purchaser shall have reasonably
determined that any Regulatory Change shall impose, modify or hold applicable
any reserve, special deposit, compulsory loan or similar requirement against
assets held by, deposits or other liabilities in or for the account of,
advances, loans or other extensions of credit by, or any other acquisition of
funds by, such Class A-2 Purchaser and the result of any of the foregoing is to
increase the cost to such Class A-2 Purchaser, by an amount which such Class A-2
Purchaser deems to be material, of maintaining its Commitment or its interest in
the Class A-2 Notes or to reduce any amount receivable in respect thereof, then,
in any such case, after submission by such Class A-2 Purchaser to the Agent for
its Purchaser Group of a written request therefor and the submission by such
Agent to the Issuer and the Servicer of such written request therefor, such
Class A-2 Purchaser (through the Agent for its Purchaser Group) shall be
entitled to be paid, but only to the extent funds are then or thereafter become
available therefor pursuant to subsection 5.5(a) or subsection 5.5(b) of the
Sale and Servicing Agreement, any additional amounts necessary to compensate
such Class A-2 Purchaser for such increased cost or reduced amount receivable,
to the extent not already reflected in the applicable interest rate, no later
than the Distribution Date following receipt by the Issuer and the Servicer of
such request for compensation under this subsection 2.4(a), if such request is
received by the Issuer and the Servicer no later than five Business Days prior
to the Determination Date related to such Distribution Date, and otherwise on
the following Distribution Date (or, if earlier, on the Termination Date).
(b) In the event that any Class A-2 Purchaser shall have reasonably
determined that any Regulatory Change regarding capital adequacy has the effect
of reducing the rate of return on such Class A-2 Purchaser's capital or on the
capital of any Person controlling such Class A-2 Purchaser as a consequence of
its obligations hereunder or its maintenance of its Commitment or its interest
in the Class A-2 Notes to a level below that which such Class A-2 Purchaser or
such Person could have achieved but for such Regulatory Change (taking into
consideration such Class A-2 Purchaser's or such Person's policies with respect
to capital adequacy) by an amount deemed by such Class A-2 Purchaser or such
Person to be material, then, from time to time, after submission by such Class
A-2 Purchaser to the Agent for its Purchaser Group of a written request therefor
and submission by such Agent to the Issuer and the Servicer of such written
request therefor, such Class A-2 Purchaser (through the Agent for its Purchaser
Group) shall be entitled to be paid, but only to the extent funds are then or
thereafter become available therefor pursuant subsection 5.5(a) or subsection
5.5(b) of the Sale and Servicing Agreement, such additional amount or amounts as
will compensate such Class A-2 Purchaser or such Person, as applicable, for such
reduction, no later than the Distribution Date following receipt by the Issuer
and the Servicer of such request for compensation under this subsection 2.4(b)
of this Agreement, if such request is received by the Issuer and the Servicer no
later than five Business Days prior to the Determination Date related to such
Distribution Date, and otherwise on the following Distribution Date (or, if
earlier, on the Termination Date). Nothing in this subsection 2.4(b) shall be
deemed to require the Issuer to pay any amount to a Class A-2 Purchaser to the
extent such Class A-2 Purchaser has been compensated therefor under another
provision of this Agreement or to the extent such amount is already reflected in
the applicable interest rate.
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(c) Each Class A-2 Purchaser agrees that it shall use its reasonable
efforts to reduce or eliminate any claim for compensation pursuant to
subsections 2.4(a) and 2.4(b) of this Agreement, including but not limited to
designating a different Investing Office for its Class A-2 Notes (or any
interest therein) if such designation will avoid the need for, or reduce the
amount of, any increased amounts referred to in subsection 2.4(a) or 2.4(b)
hereof and will not, in the reasonable opinion of such Class A-2 Purchaser, be
unlawful or otherwise disadvantageous to such Class A-2 Purchaser or
inconsistent with its policies or result in any unreimbursed cost or expense to
such Class A-2 Purchaser or in an increase in the aggregate amount payable under
subsections 2.4(a) and 2.4(b) hereof. If such claim is not eliminated by any
such designation or no such designation is done and the Class A-2 Purchaser does
not waive payment of such amount, the Issuer shall have the right to procure a
replacement purchaser which is not so affected and which is reasonably
acceptable to the Agent for the related Purchaser Group and the Administrative
Agent (a "Replacement Purchaser") to replace such Class A-2 Purchaser. No
replacement of a Class A-2 Purchaser shall be effected pursuant to this
subsection 2.4(c) if, after giving effect thereto, any amounts shall be owing to
the replaced Class A-2 Purchaser hereunder. Each affected Class A-2 Purchaser
hereby agrees to take, at the Issuer's expense, all actions necessary to permit
a Replacement Purchaser to succeed to its rights and obligations hereunder.
Notwithstanding the foregoing, (i) if the Class A-2 Purchaser being
replaced pursuant to this subsection is a Committed Purchaser, the Replacement
Purchaser shall be acceptable to such the related CP Conduit and (ii) if the
Class A-2 Purchaser being replaced pursuant to this subsection is a CP Conduit,
the Replacement Purchaser shall be acceptable to all related Committed
Purchasers; and it shall be a condition of such replacement Committed Purchaser
that such Replacement Purchaser enter into substitute Support Facilities for
those to which the Class A-2 Purchaser being replaced is a party on terms
mutually acceptable to the parties thereto. In the event that a proposed
Replacement Purchaser designated by the Issuer and approved by the applicable
Agent and the Administrative Agent as provided in this subsection is not
acceptable to the applicable CP Conduit or the applicable Committed Purchasers,
as applicable, or has not within a reasonable period entered into applicable
Support Facilities, and another replacement Class A-2 Purchaser has not been
promptly procured as provided in this subsection with the consent of all
affected parties, then any Class A-2 Purchaser which failed to consent to such
replacement or to enter into such Support Facilities may be replaced by a
Replacement Purchaser as provided in this subsection.
(d) Each Class A-2 Purchaser claiming increased amounts described in
subsection 2.4(a) or 2.4(b) of this Agreement will furnish to the Agent for its
Purchaser Group (together with its request for compensation) a certificate
prepared in good faith setting forth the basis and the calculation of the amount
(in reasonable detail) of each request by such Class A-2 Purchaser for any such
increased amounts referred to in subsection 2.4(a) or 2.4(b) hereof. Any such
certificate shall be conclusive absent manifest error, and such Agent shall
deliver a copy thereof to the Issuer and the Servicer. Failure on the part of
any Class A-2 Purchaser to demand compensation for any amount pursuant to
subsection 2.4(a) or 2.4(b) hereof with respect to any period shall not
constitute a waiver of such Class A-2 Purchaser's right to demand compensation
with respect to such period; provided, however, notwithstanding the foregoing
provisions of this Section 2.4, a Class A-2 Purchaser shall not be compensated
for any such amount relating to any period ending, and of which such Class A-2
Purchaser has had knowledge, more than six months prior to the date that such
Class A-2 Purchaser notifies the Issuer and the Servicer in writing
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thereof or for any amounts resulting from a change by any Class A-2 Purchaser of
its Investing Office (other than changes required by law or changes made
pursuant to subsection 2.4(c)).
2.5 Taxes.
(a) All payments made to the Class A-2 Purchasers, the Agents or the
Administrative Agent under this Agreement and the Sale and Servicing Agreement
and the Indenture (including all amounts payable with respect to the Class A-2
Notes) shall, to the extent allowed by law, be made free and clear of, and
without deduction or withholding for or on account of, any present or future
income, stamp or other taxes, levies, imposts, duties, charges, fees, deductions
or withholdings, now or hereafter imposed, levied, collected, withheld or
assessed by any Governmental Authority (collectively, "Taxes"), excluding (i)
income taxes (including branch profit taxes, minimum taxes and taxes computed
under alternative methods, at least one of which is based on or measured by net
income), franchise taxes (imposed in lieu of income taxes), or any other taxes
based on or measured by the net income of such Class A-2 Purchaser, Participant,
Agent or the Administrative Agent (as the case may be) or the gross receipts or
income of such Class A-2 Purchaser, Participant, Agent or the Administrative
Agent, as the case may be; (ii) any Taxes that would not have been imposed but
for the failure of such Class A-2 Purchaser, Participant, Agent or the
Administrative Agent, as applicable, to provide and keep current (to the extent
legally able) any certification or other documentation required to qualify for
an exemption from, or reduced rate of, any such Taxes or required by this
Agreement to be furnished by such Class A-2 Purchaser, Participant, Agent or the
Administrative Agent, as applicable; and (iii) any Taxes imposed as a result of
a change by any Class A-2 Purchaser or Participant of its Investing Office
(other than changes mandated by this Agreement, including subsection 2.4(c)
hereof, or required by law) (all such excluded taxes being hereinafter called
"Excluded Taxes").
If, as a result of any change in law, treaty or regulation or in the
interpretation or administration thereof by any governmental or regulatory
agency or body charged with the administration or interpretation thereof, or the
adoption of any law, treaty or regulation, any Taxes, other than Excluded Taxes,
are required to be withheld from any amounts payable to a Class A-2 Purchaser or
Agent or the Administrative Agent hereunder or under the Sale and Servicing
Agreement or the Indenture, then after submission by any Class A-2 Purchaser to
the Agent for its Purchaser Group (in the case of an amount payable to a Class
A-2 Purchaser) and by any Agent or the Administrative Agent to the Issuer and
the Servicer of a written request therefor, the amounts so payable to such Class
A-2 Purchaser or Agent or the Administrative Agent, as applicable, shall be
increased, and such Class A-2 Purchaser (through the applicable Agent) or Agent
or the Administrative Agent, as applicable, shall be entitled to be paid (in the
case of payments from a Seller or the Issuer, only to the extent funds are then
or thereafter available therefor pursuant to clause (xix) of subsection 5.5(a)
or (xviii) of subsection 5.5(b) of the Sale and Servicing Agreement), the amount
of such increase to the extent necessary to yield to such Class A-2 Purchaser or
Agent or the Administrative Agent, as applicable (after payment of all such
Taxes) interest or any such other amounts payable hereunder or thereunder at the
rates or in the amounts specified in this Agreement or in the Sale and Servicing
Agreement and the Indenture, as applicable, no later than the Distribution Date
following receipt by the Issuer and the Servicer of a request for such
additional amounts under this subsection 2.5(a), if such request is received by
the Issuer and the Servicer no later than five Business Days prior to the
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Determination Date related to such Distribution Date, and otherwise on the
following Distribution Date (or, if earlier, on the Termination Date); provided,
however, that the amounts so payable to such Class A-2 Purchaser or Agent or the
Administrative Agent shall not be increased pursuant to this subsection 2.5(a)
if such requirement to withhold results from the failure of such Person to
comply with subsection 2.5(c) hereof. Whenever any Taxes are payable on or with
respect to amounts distributed to a Class A-2 Purchaser or Agent or the
Administrative Agent, as promptly as possible thereafter the Issuer and the
Servicer shall send to the Agent, on behalf of such Class A-2 Purchaser, or to
such Agent or the Administrative Agent, as applicable, a certified copy of an
original official receipt showing payment thereof. Notwithstanding any other
provisions of this Section 2.5, the Servicer shall not have any liability under
this Section 2.5 for the payment of Taxes except for Taxes (other than Excluded
Taxes) assessed on indemnification payments made or required to be made by the
Servicer for its own account under Section 2.6 of this Agreement. If the Issuer,
the Sellers or the Servicer, as applicable, fails to pay any Taxes when due to
the appropriate taxing authority or fails to remit to the Agent, on behalf of
itself or such Class A-2 Purchaser, or to such Agent or the Administrative
Agent, as applicable, the required receipts or other required documentary
evidence, such Class A-2 Purchaser (through the applicable Agent) or Agent or
the Administrative Agent, as applicable, shall be entitled to be paid, in the
case of a failure by the Issuer or AFC, only to the extent funds are then or
thereafter available therefor pursuant to clause (xix) of subsection 5.5(a) or
(xviii) of subsection 5.5(b) of the Sale and Servicing Agreement) or in the case
of a failure by the Servicer, by such entity, as the case may be, any
incremental taxes, interest or penalties that may become payable by such Class
A-2 Purchaser or Agent or the Administrative Agent, as applicable, as a result
of any such failure no later than the Distribution Date following receipt by the
Issuer and the Servicer of such request for payment under this subsection
2.5(a), if such request is received by the Issuer and the Servicer no later than
five Business Days prior to the Determination Date related to such Distribution
Date, and otherwise on the following Distribution Date (or, if earlier, on the
Termination Date).
(b) A Class A-2 Purchaser claiming increased amounts under subsection
2.5(a) hereof for Taxes paid or payable by such Class A-2 Purchaser will furnish
to the applicable Agent a certificate prepared in good faith setting forth the
basis and amount of each request by such Class A-2 Purchaser for such Taxes, and
such Agent shall deliver a copy thereof to the Issuer and the Servicer. An Agent
or the Administrative Agent claiming increased amounts under subsection 2.5(a)
hereof for its own account for Taxes paid or payable by such Agent or the
Administrative Agent, as applicable, will furnish to the Issuer and the Servicer
a certificate prepared in good faith setting forth the basis and amount of each
request by the Agent or the Administrative Agent for such Taxes. Any such
certificate of a Class A-2 Purchaser or Agent or the Administrative Agent shall
be conclusive absent manifest error. Failure on the part of any Class A-2
Purchaser or Agent or the Administrative Agent to demand additional amounts
pursuant to subsection 2.5(a) of this Agreement with respect to any period shall
not constitute a waiver of the right of such Class A-2 Purchaser or Agent or the
Administrative Agent, as the case may be, to demand compensation with respect to
such period. All such amounts shall be due and payable to such Class A-2
Purchaser (through the applicable Agent) or Agent or the Administrative Agent,
as the case may be, on the Distribution Date following receipt by the Issuer and
the Servicer of such certificate, if such certificate is received by the Issuer
and the Servicer at least five Business Days prior to the Determination Date
related to such Distribution
- 25 -
Date and otherwise shall be due and payable on the following Distribution Date
(or, if earlier, on the Termination Date).
(c) Each Class A-2 Purchaser and each Participant holding an interest
in Class A-2 Notes agrees that prior to the date on which the first interest or
fee payment hereunder is due thereto, it will deliver to the Issuer, the
Servicer, the Trustee, the applicable Agent and the Administrative Agent (i) if
such Class A-2 Purchaser or Participant is not incorporated under the laws of
the United States or any State thereof, two duly completed copies of the U.S.
Internal Revenue Service Form W-8ECI or Form W-8BEN claiming treaty benefits, or
in either case successor applicable forms required to evidence that the Class
A-2 Purchaser or Participant is entitled to receive payments under this
Agreement and with respect to the Class A-2 Notes without deduction or
withholding of any United States federal income taxes, (ii) in the case of any
other Class A-2 Purchaser or Participant, a duly completed U.S. Internal Revenue
Service Form W-9 or successor applicable or required forms, and (iii) such other
forms and information as may be required to confirm the availability of any
applicable exemption from United States federal, state or local withholding
taxes. Each Class A-2 Purchaser or Participant holding an interest in Class A-2
Notes also agrees to deliver to the Issuer, the Servicer, the Trustee, the
applicable Agent and the Administrative Agent two further copies of such Form
W-8ECI, Form W-8BEN claiming treaty benefits or Form W-9, or such successor
applicable forms or other manner of certification, as the case may be, on or
before the date that any such form expires or becomes obsolete or after the
occurrence of any event requiring a change in the most recent form previously
delivered by it hereunder, and such extensions or renewals thereof as may
reasonably be requested by an Agent or the Administrative Agent, unless in any
such case, solely as a result of a change in treaty, law or regulation occurring
prior to the date on which any such delivery would otherwise be required, the
Class A-2 Purchaser is no longer eligible to deliver then-applicable form set
forth above and so advises the Issuer, the applicable Agent and the
Administrative Agent. Each Class A-2 Purchaser certifies, represents and
warrants as of the Closing Date, each Assignee and each Participant (in either
case other than a Support Party) shall certify, represent and warrant as a
condition of acquiring its Assignment or Participation as of the effective date
of the Transfer Supplement to which it is a party or of such Participation, as
the case may be, and each Support Party shall certify, represent and warrant as
of the effective date of its becoming a Support Party, that (x) it is entitled
to receive payments under this Agreement and with respect to the Class A-2 Notes
without deduction or withholding of any United States federal income taxes and
(y) it is entitled to an exemption from United States backup withholding tax.
(d) Each Class A-2 Purchaser agrees that it shall use its reasonable
efforts to designate a different Investing Office if such designation will
eliminate or reduce any amount due under this Section 2.5 and will not, in the
reasonable opinion of such Class A-2 Purchaser, be unlawful or otherwise
disadvantageous to such Class A-2 Purchaser or inconsistent with its policies or
result in any unreimbursed cost or expense to such Class A-2 Purchaser. If such
amount is not eliminated by any such designation or no such designation is done
and the Class A-2 Purchaser does not waive payment of such amount, the Issuer
shall have the right to procure a replacement purchaser which is not so affected
and which is reasonably acceptable to the Agent for the related Purchaser Group
and the Administrative Agent (a "Replacement Purchaser") to replace such Class
A-2 Purchaser. No replacement of a Class A-2 Purchaser shall be effected
pursuant to this subsection 2.5(d) if, after giving effect thereto, any amounts
shall be
- 26 -
owing to the replaced Class A-2 Purchaser hereunder. Each affected Class A-2
Purchaser hereby agrees to take all actions necessary to permit a Replacement
Purchaser to succeed to its rights and obligations hereunder.
Notwithstanding the foregoing, (i) if the Class A-2 Purchaser being
replaced pursuant to this subsection is a Committed Purchaser, the Replacement
Purchaser shall be acceptable to the related CP Conduit and (ii) if the Class
A-2 Purchaser being replaced pursuant to this subsection is a CP Conduit, the
Replacement Purchaser shall be acceptable to all related Committed Purchasers;
and it shall be a condition of such replacement Committed Purchaser that such
Replacement Purchaser enter into substitute Support Facilities for those to
which the Class A-2 Purchaser being replaced is a party on terms mutually
acceptable to the parties thereto. In the event that a proposed Replacement
Purchaser designated by the Issuer and approved by the applicable Agent and the
Administrative Agent as provided in this subsection is not acceptable to the
applicable CP Conduit or the applicable Committed Purchasers, as applicable, or
has not within a reasonable period entered into applicable Support Facilities,
and another replacement Class A-2 Purchaser has not been promptly procured as
provided in this subsection with the consent of all affected parties, then any
Class A-2 Purchaser which failed to consent to such replacement or to enter into
such Support Facilities may be replaced by a Replacement Purchaser as provided
in this subsection.
2.6 Indemnification.
(a) Without limiting any other rights which any such Person may have
hereunder or under applicable law, AmeriCredit hereby agrees to indemnify each
of the Administrative Agent, the Agents, and the Class A-2 Purchasers, and each
other Affected Party and each of their Affiliates, and each of their respective
successors, transferees, participants and assigns and all officers, directors,
shareholders, controlling persons, employees and agents of any of the foregoing
(each of the foregoing Persons being individually called an "Indemnitee"),
forthwith on demand, from and against any and all damages, losses, claims,
liabilities and related costs and expenses, including reasonable attorneys' fees
and disbursements (all of the foregoing being collectively called "Indemnified
Amounts") awarded against or incurred by any of them arising out of or relating
to any Transaction Document or the transactions contemplated thereby or the use
of proceeds therefrom by the Issuer, including (without limitation) in respect
of the funding of any Borrowing or in respect of any Receivable, excluding,
however, (a) Indemnified Amounts to the extent determined by a court of
competent jurisdiction to have resulted from gross negligence or willful
misconduct on the part of such Indemnitee or its agent or subcontractor, (b)
except as otherwise provided herein, non-payment by any obligor of an amount due
and payable with respect to a Receivable, (c) any loss in value of any Financed
Vehicle or Eligible Investment due to changes in market conditions or for other
reasons beyond the control of AmeriCredit or the Issuer, (d) any Excluded Tax or
(e) any amount which represents legal, accounting or other costs incurred by any
Indemnitee in respect of any legal action between such Indemnitee and
AmeriCredit or any Affiliate of AmeriCredit if a court of competent jurisdiction
makes a final determination that AmeriCredit is the prevailing party. Without
limiting the foregoing, but subject to the exclusions (a) through (e) above,
AmeriCredit agrees to indemnify each Indemnitee for Indemnified Amounts arising
out of or relating to:
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(i) the breach of any representation or warranty made by the
Issuer, either Seller (or any of its officers) or AmeriCredit (in any
capacity) or any Affiliate of AmeriCredit under or in connection with this
Agreement or the other Basic Documents, any Servicer's Certificate,
Borrowing Base Confirmation or any other information, report or certificate
delivered by the Issuer, either Seller, Servicer or AmeriCredit (in any
capacity) or an Affiliate of AmeriCredit pursuant hereto or thereto, which
shall have been false or incorrect in any material respect when made or
deemed made;
(ii) the failure by the Issuer, either Seller, the Servicer or
AmeriCredit (in any capacity) to comply in any material way with any
applicable law, rule or regulation with respect to any Receivable or any
Financed Vehicle, or the nonconformity of any Receivable with any such
applicable law, rule or regulation;
(iii) the failure to vest and maintain vested in the Trust
Collateral Agent, for the benefit of the Noteholders, a first-priority
security interest in all the Collateral, free and clear of any Lien;
(iv) any dispute, claim, offset or defense (other than
discharge in bankruptcy) of an Obligor to the payment of any Receivable
(including, without limitation, a defense based on such Receivable not
being a legal, valid and binding obligation of such Obligor enforceable
against it in accordance with its terms);
(v) any failure of AmeriCredit or an Affiliate of
AmeriCredit, as Servicer, to perform its duties or obligations in
accordance with the provisions of the Sale and Servicing Agreement or any
provision contained in any other Basic Document;
(vi) any claim involving products liability that arises out of
or relates to merchandise or services that are the subject of any
Receivable or strict liability claim in connection with any Financed
Vehicle related to a Receivable;
(vii) any tax or governmental fee or charge (but not including
any Excluded Taxes), all interest and penalties thereon or with respect
thereto, and all out-of-pocket costs and expenses, including the reasonable
fees and expenses of counsel in defending against the same, which may arise
by reason of the making, maintenance or funding, directly or indirectly, of
any Borrowing, or any other interest in the Collateral;
(viii) the offering or sale of the Notes or the offering or
effectuation of any Take-Out Securitization;
(ix) the commingling of the proceeds of the Collateral at any
time with other funds; or
(x) the occurrence of a CP Conduit Consolidation Event."
If for any reason (other than the exclusions (a) through (e) set forth in
the first paragraph of this Section 2.6(a)) the indemnification provided above
in this Section 2.6(a) is unavailable to an Indemnitee or is insufficient to
hold an Indemnitee harmless, then AmeriCredit shall contribute to the amount
paid or payable by such Indemnitee as a result of such loss, claim,
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damage or liability in such proportion as is appropriate to reflect not only the
relative benefits received by such Indemnitee, on the one hand, and AmeriCredit,
its Affiliates and the Issuer, on the other hand, but also the relative fault of
such Indemnitee, on the one hand, and AmeriCredit, its Affiliates or the Issuer,
on the other hand, as well as any other relevant equitable considerations.
(b) AmeriCredit and any Successor Servicer, by accepting its
appointment as Servicer pursuant to the Sale and Servicing Agreement, (i) shall
agree to be bound by the terms, covenants and conditions contained herein
applicable to the Servicer and to be subject to the duties and obligations of
the Servicer hereunder, (ii) as of the date of its acceptance, shall be deemed
to have made with respect to itself only the representations and warranties made
by the Servicer in subsections 4.1(a) through 4.1(e) hereof (in the case of
subsection 4.1(a) with appropriate factual changes) and (iii) shall severally as
to itself agree to indemnify and hold harmless any Indemnitee from and against
any and all claims, damages, losses, liabilities, costs or expenses (including
the fees and expenses of counsel) whatsoever which such Indemnitee may incur (or
which may be claimed against such Indemnitee) by reason of the negligence or
willful misconduct of AmeriCredit or such Successor Servicer, as applicable, in
exercising its powers and carrying out its obligations as Servicer under this
Agreement, the Sale and Servicing Agreement or any Related Document.
(c) In the event that for any reason, (i) the basis for calculation
of interest on any portion of any CP Conduit's Percentage Interest of the Class
A-2 Principal Balance shall change from the Commercial Paper Rate to the
Alternative Rate or from the Adjusted Eurodollar Rate to the Prime Rate, (ii)
the Issuer shall revoke or cancel any Borrowing Notice or decrease the
Additional Class A-2 Principal Amount subject thereto, or (iii) any Class A-2
Purchaser receives any repayment of any portion of its share of any Borrowing
constituting a part of the Class A-2 Principal Balance on a date other than the
last day of a Fixed Period for such Borrowing, including, without limitation, on
an Interim Distribution Date, then in any such case each affected Class A-2
Purchaser shall be entitled to be indemnified by the Issuer, against, and to be
paid the amount equal to any loss or reasonable out-of-pocket expense suffered
by such Class A-2 Purchaser as a result of such change or such repayment,
including, in the case of a CP Conduit, any loss, cost or expense suffered by
such CP Conduit by reason of its issuance of Commercial Paper Notes or its
incurrence of other obligations reasonably allocated by such CP Conduit to its
funding or the maintenance of its funding of its share of the Class A-2
Principal Balance, or, in the case of any Class A-2 Purchaser, redeploying funds
prepaid or repaid, in amounts which correspond to its share of the Class A-2
Principal Balance, but in each case only to the extent funds are then or
thereafter available therefor pursuant to subsection 5.5(a) or subsection 5.5(b)
of the Sale and Servicing Agreement. A statement setting forth in reasonable
detail the calculations of any additional amounts payable pursuant to this
Section submitted by a Class A-2 Purchaser or Agent or by the Administrative
Agent, as the case may be, to the Issuer and the Servicer and shall be
conclusive absent manifest error. Amounts payable pursuant to this subsection
2.6(c) shall be due no later than the Distribution Date following receipt by the
Issuer and the Servicer of such request for payment under this subsection
2.6(c), if such request is received by the Issuer and the Servicer no later than
five Business Days prior to the Determination Date related to such Distribution
Date, and otherwise on the following Distribution Date (or, if earlier, on the
Termination Date).
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2.7 Expenses, etc.
(a) The Sellers agree to pay on demand (i) to the Administrative
Agent and the initial Class A-2 Purchasers and Agents all reasonable costs and
expenses in connection with the preparation, execution, and delivery of this
Agreement and the other documents to be delivered hereunder or in connection
herewith, including, subject to the limitations specified in the Supplemental
Fee Letters, the reasonable fees and out-of-pocket expenses of counsel with
respect thereto and the amounts due to ▇▇▇▇▇'▇ and S&P in connection with their
rating of the Notes and their review of the initial CP Conduits' acquisition of
the Class A-2 Notes, (ii) to the Administrative Agent all reasonable costs and
expenses in connection with the preparation, execution, and delivery of Joinder
Supplements and the other documents to be delivered in connection therewith,
including, subject to the limitations specified in the Supplemental Fee Letters,
the reasonable fees and out-of-pocket expenses of counsel with respect thereto,
(iii) to the Administrative Agent and each Agent and Class A-2 Purchaser all
reasonable costs and expenses in connection with any amendments of or waivers or
consents under this Agreement or the Related Documents, including in each case
the reasonable fees and out-of-pocket expenses of counsel with respect thereto,
and (iv) to the Administrative Agent and each Agent and Class A-2 Purchaser, on
demand, all reasonable costs and expenses (including reasonable fees and
expenses of counsel), if any, in connection with the enforcement of this
Agreement or any of the Related Documents, and the other documents delivered
thereunder or in connection therewith. Upon being found to have breached its own
representations, warranties or obligations under this Agreement or any Related
Documents, the Servicer agrees to pay to the Administrative Agent and each Agent
and Class A-2 Purchaser, on demand, all reasonable costs and expenses (including
reasonable fees and expenses of counsel), if any, incurred solely in connection
with the enforcement of such representations, warranties or obligations against
the Servicer.
(b) The Sellers agree to pay on demand any and all stamp, transfer
and other similar taxes (other than Excluded Taxes) and governmental fees
payable in connection with the execution, delivery, filing and recording of any
of the Related Documents and each related Support Facility, and agrees to save
each Class A-2 Purchaser and Agent and the Administrative Agent harmless from
and against any liabilities with respect to or resulting from any delay in
paying or any omission to pay such taxes and fees.
2.8 Effect of Event of Default.
(a) Optional Termination. Upon the occurrence of an Event of Default
(other than an Event of Default described in Section 5.1(iii) or (iv) of the
Indenture), the Administrative Agent may with the consent of the Majority Class
A-2 Purchasers, and, at the direction of the Majority Class A-2 Purchasers, the
Administrative Agent shall declare the Purchase Termination Date to have
occurred, whereupon the Commitments of the Committed Purchasers, if any,
hereunder shall terminate.
(b) Automatic Termination. Upon the occurrence of an Event of Default
described in Section 5.1(iii) or (iv) of the Indenture, the Purchase Termination
Date shall be deemed to have occurred automatically, and the Commitments of the
Committed Purchasers, if any, hereunder shall be deemed to have terminated.
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ARTICLE 3 CONDITIONS PRECEDENT
3.1 Conditions to Initial Purchase. Part I. The following shall be
conditions precedent to the effectiveness of the amendment and restatement of
this Agreement:
(a) the representations and warranties of AFC, AmeriCredit and the
Issuer set forth or referred to in Article 4 hereof shall be true and correct in
all material respects on the Closing Date as though made on and as of the
Closing Date (except for representations and warranties which relate to a
specific date, which shall be true and correct as of such date), and no event
which of itself or with the giving of notice or lapse of time, or both, would
constitute a Termination Event shall have occurred and be continuing on the
Closing Date;
(b) a Supplemental Fee Letter shall have been executed and delivered
by the Sellers to the Administrative Agent and each Agent, as applicable; and
(c) the Administrative Agent and the Agents shall have received on
the Closing Date the following items, each of which shall be in form and
substance satisfactory to the Agents:
(i) an Officer's Certificate of AFC confirming the
satisfaction of the conditions set forth in clauses (a) (as to
representations and warranties of AFC only) above;
(ii) an Officer's Certificate of AmeriCredit confirming the
satisfaction of the conditions set forth in clauses (a) (as to
representations and warranties of AmeriCredit only) above;
(iii) an Officer's Certificate of the Issuer confirming the
satisfaction of the conditions set forth in clauses (a) (as to
representations and warranties of the Issuer only) above;
(iv) a copy of (A) the charter and by-laws of, and an
incumbency certificate with respect to its officers executing any of the
Related Documents on the Closing Date on behalf of, each of AmeriCredit and
AFC, certified by its authorized officer, and (B) resolutions of the Board
of Directors (or an authorized committee thereof) of each of AmeriCredit
and AFC with respect to the Related Documents to which it is party,
certified by its authorized officer;
(v) a certificate issued no earlier than 30 days prior to the
Initial Closing Date by an appropriate Governmental Authority evidencing
the legal existence and good standing of each of AFC, the Issuer and
AmeriCredit;
(vi) the favorable written opinions of counsel for AFC,
AmeriCredit, the Issuer, the Trust Collateral Agent, the Backup Servicer,
the Owner Trustee and the Trustee, addressed to the Administrative Agent
and each Agent and Class A-2 Purchaser, or accompanied by a letter
providing that the Administrative Agent and each Agent and Class A-2
Purchaser may rely on such opinions as if they were addressed to them, and
dated the Closing Date, covering general corporate matters, the due
execution and
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delivery of, and the enforceability of, each of the Related Documents to
which the AFC, AmeriCredit, the Issuer, the Trust Collateral Agent, the
Backup Servicer, the Owner Trustee and the Trustee, (individually or in any
other capacity) is party, true sale, bankruptcy, bank insolvency, security
interest and tax matters and such other matters as the Administrative Agent
or any Agent may request;
(vii) evidence of the due execution and delivery by each of the
Owner Trustee and the Trustee of the Related Documents to which each is
party;
(viii) an executed copy of the Sale and Servicing Agreement, the
Indenture, the Custodial Agreement, the Lockbox Agreement, the Trust
Agreement and the Master Sale and Contribution Agreement;
(ix) evidence satisfactory to the Administrative Agent that
financing statements duly executed by AmeriCredit, the Issuer and AFC or
other, similar instruments or documents, as may be necessary or, in the
opinion of the Administrative Agent or any Agent or Class A-2 Purchaser,
desirable under the Uniform Commercial Code of all appropriate
jurisdictions or any comparable law to perfect the transfers (including
grants of security interests) under the Related Documents have been
delivered and, if appropriate, have been duly filed or recorded and that
all filing fees, taxes or other amounts required to be paid in connection
therewith have been paid;
(x) certified copies of requests for information or copies
(or a similar search report certified by a party acceptable to the
Administrative Agent), dated a date reasonably near to the Initial Closing
Date, listing all effective financing statements which name AmeriCredit,
the Issuer and AFC (under its present name and any previous name) as debtor
and which are filed in the jurisdictions in which the statements referred
to in clause (x) above were or are to be filed, together with copies of
such financing statements (none of which, other than financing statements
naming the party under the Related Documents to which transfers (including
grants of security interests) thereunder purport to have been made shall
cover any of the property purported to be conveyed thereunder); and
(xi) such additional documents, instruments, certificates or
letters as the Administrative Agent or any Agent or Class A-2 Purchaser may
reasonably request.
(d) the Class A-1 Notes, the Class A-2 Notes, the Class B Notes, the
Class C Notes, the Class D Notes and the Class E Notes shall have been duly
issued in accordance with the Sale and Servicing Agreement and the Indenture and
the Reserve Account and Collateral Account shall have been established with the
Trustee;
(e) the Sellers shall have paid all fees payable on or before the
date of such borrowing to the Administrative Agent (for its own account or for
the account of the initial Class A-2 Purchasers and Agents) described in the
Supplemental Fee Letters and all reasonable and appropriately invoiced costs and
expenses of the Administrative Agent and the initial Agents and Class A-2
Purchasers payable by the Sellers, to the extent provided herein, in connection
with the transactions contemplated hereby;
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(f) the Administrative Agent and the Agents shall have received the
following:
(i) evidence satisfactory to the Administrative Agent and the
initial Agent that the Class A-1 Notes and the Class A-2 Notes are rated
Aaa by ▇▇▇▇▇'▇ and AAA by S&P, that the Class B Notes are rated Aa2 or
higher by ▇▇▇▇▇'▇ and AA or higher by S&P, and that the Class C Notes are
rated A2 or higher by ▇▇▇▇▇'▇ and A or higher by S&P;
(ii) a certificate of the Trustee as to the establishment of
certain accounts as provided in the Sale and Servicing Agreement and the
Indenture;
(iii) a "field report" from RSM McGladrey, Inc. in form and
substance acceptable to each Class A-2 Purchaser; and
(v) the duly executed Class A-2 Note(s) registered in the name
of each Agent as nominee on behalf of the Class A-2 Owners in its Purchaser
Group.
(g) evidence satisfactory to each initial CP Conduit that its
purchase of Class A-2 Notes hereunder will not result in a reduction or
withdrawal of the rating of its Commercial Paper Notes by ▇▇▇▇▇'▇, S&P or any
other nationally recognized rating agency rating its Commercial Paper Notes.
Part II. The following shall be conditions precedent to the obligations of
any Class A-2 Purchaser to purchase its share of the initial Additional Class
A-2 Principal Amount:
(a) an amount equal to the Minimum Reserve Account Amount shall have
been deposited from the proceeds of the first borrowing under the Indenture in
the Reserve Account;
(b) the Receivables Financing Agreement, dated as of June 30, 2000,
as amended, among AmeriCredit DB Trust, AFS, AmeriCredit Funding Corp. IV, the
Lenders parties thereto, DBNY, as Agent, and Bank One NA, as Backup Servicer and
Collateral Agent shall have been terminated;
(c) Receivables Financing Agreement, dated as of March 31, 1999,
among AmeriCredit Warehouse Trust, AFS, AmeriCredit Funding Corp., AmeriCredit
Corporation of California, the Lenders parties thereto, Credit Suisse First
Boston, New York Branch, as Agent, and Bank One NA, as Backup Servicer and
Collateral Agent shall have been terminated; and
(d) Amended and Restated Security Agreement, dated as of August 31,
2000, among AmeriCredit Barclays Trust, as Debtor, AmeriCredit Financial
Services, Inc., individually and as Collection Agent, AmeriCredit Funding Corp.
III, Individually, Sheffield Receivables Corporation, as Company, and Bank One,
N.A., as Collateral Agent and Securities Intermediary shall have been
terminated.
3.2 Condition to Purchases. The following shall be conditions
precedent to the obligation of any Class A-2 Purchaser to purchase its share of
any Additional Class ▇-▇
- ▇▇ -
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ (▇▇▇▇▇ than an Additional Class A-2 Principal Amount which
refunds a Swingline Borrowing) on any Purchase Date (including the Closing
Date):
(a) the Administrative Agent and Agents shall have timely received a
properly completed Borrowing Notice, which shall include a Borrowing Base
Confirmation and Schedule of Receivables;
(b) (i) all interest, fees, expenses and all other amounts then due
and payable to the Administrative Agent or any Class A-2 Purchaser or Agent
hereunder shall have been paid, and (ii) no Termination Event, and no event
that, after the giving of notice or the lapse of time, would constitute a
Termination Event, shall have occurred and be continuing; provided that if (x) a
Borrowing Base Deficiency exists as a result of a change in the Class A Credit
Score Enhancement Rate, the Class B Credit Score Enhancement Rate and/or the
Class C Credit Score Enhancement Rate, including, without limitation, as a
result of an election of Option A or Option B as set forth on Schedule 2 to the
Indenture, and (y) no other Termination Event or event that, after the giving of
notice or the lapse of time, would constitute a Termination Event, shall have
occurred and be continuing, then the foregoing conditions of this Section
3.2(b)(ii) shall not prevent a purchase if, after giving effect to such purchase
and the application of the proceeds thereof, no Borrowing Base Deficiency would
exist;
(c) in the case of any Borrowing Date, all conditions to the issuance
of the Additional Class A-2 Principal Amount and any Additional Class B
Principal Amount, Additional Class C Principal Amount, Additional Class D
Principal Amount and Additional Class E Principal Amount to occur on such
Borrowing Date set forth in the Indenture or any other Related Document shall
have been satisfied;
(d) after giving effect to the issuance of the Notes or the issuance
of the Additional Class A-2 Principal Amount and any Additional Class B
Principal Amount, Additional Class C Principal Amount, Additional Class D
Principal Amount and Additional Class E Principal Amount to occur on such
Borrowing Date, all representations and warranties of the Sellers, the Issuer
and the Servicer contained herein or in the Related Documents or otherwise made
in writing pursuant to any of the provisions hereof or thereof shall be true and
correct in all material respects with the same force and effect as though such
representations and warranties had been made on and as of such date (other than
representations and warranties in Section 4.1(f) which specifically relate to an
earlier date, which shall be true and correct in all material respects as of
such earlier date);
(e) after giving effect to the issuance of the Notes or the issuance
of the Additional Class A-1 Principal Amount and any Additional Class B
Principal Amount, Additional Class C Principal Amount, Additional Class D
Principal Amount and Additional Class E Principal Amount to occur on such
Borrowing Date, the Class A-2 Principal Balance shall be equal to or less than
the Class A-2 Facility Limit;
(f) after giving effect to any withdrawals from or deposits to the
Reserve Account on such date, the amount on deposit therein shall at least equal
the Minimum Reserve Account Amount;
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(g) in the case of each Borrowing Date, the Issuer shall have
delivered to the Administrative Agent an Officer's Certificate dated such
Borrowing Date certifying that the conditions described in subsections 3.2(a)
through 3.2(f) and 3.2(h) through (k) have been satisfied;
(h) the Class A-1 Notes and the Class A-2 Notes shall remain rated
Aaa by ▇▇▇▇▇'▇ and AAA by S&P, the Class B Notes are rated Aa2 or higher by
▇▇▇▇▇'▇ and AA or higher by S&P, and the Class C Notes shall remain rated A2 or
higher by ▇▇▇▇▇'▇ and A or higher by S&P and, if the Class D Notes have been
rated by ▇▇▇▇▇'▇ and S&P, the Class D Notes shall remain rated Baa2 or higher by
▇▇▇▇▇'▇ and BBB or higher by S&P and, if the Class E Notes have been rated by
▇▇▇▇▇'▇ and S&P, the Class E Notes shall remain rated Ba1 or higher by ▇▇▇▇▇'▇
and BB or higher by S&P;
(i) if the Issuer shall be purchasing additional Receivables with the
proceeds of such borrowing, the Administrative Agent shall have received a duly
completed and executed Collateral Receipt in respect of each such Receivable
identified in related Schedule(s) submitted with the Borrowing Notice for such
Borrowing;
(j) the Net Spread for the Receivables shall not be less than 5.5%;
and
(k) in the case of any CP Conduit, such CP Conduit's Support
Facilities shall be in full force and effect.
ARTICLE 4 REPRESENTATIONS AND WARRANTIES
4.1 Representations and Warranties of AmeriCredit, AFC and the
Issuer. AmeriCredit, AFC and the Issuer each severally, with respect to itself
only, represents and warrants to the Class A-2 Purchasers, the Agents and the
Administrative Agent that its representations and warranties (individually or as
Seller or Servicer, as applicable) set forth in the Sale and Servicing
Agreement, the Indenture and the other Related Documents are true and correct as
of the date hereof (except for representations or warranties which relate to a
specific date, which shall be true and correct as of such date). AmeriCredit,
AFC and the Issuer each severally, with respect to itself only, further
represents and warrants to, and agrees with, each Class A-2 Purchaser and Agent
and the Administrative Agent that, as of the date hereof and as of each
Borrowing Date:
(a) It is a corporation duly organized, validly existing and in good
standing under the laws of the State of Delaware as a corporation (if
AmeriCredit or AFC) or a Delaware statutory trust (if the Issuer), with full
power and authority under such laws to own its properties and conduct its
business as such properties are presently owned and such business is presently
conducted and to execute, deliver and perform its obligations under this
Agreement and the Related Documents to which it is a party.
(b) It has the power and authority to execute, deliver and perform
this Agreement and the Related Documents to which it is a party and all the
transactions contemplated hereby and thereby and has taken all necessary action
to authorize the execution, delivery and performance by it of this Agreement and
such Related Documents. When executed and delivered, each of this Agreement and
each such Related Document will constitute its legal,
- 35 -
valid and binding agreement, enforceable in accordance with its terms, except as
such enforceability may be limited by applicable bankruptcy, reorganization,
insolvency, moratorium and other laws of general applicability relating to or
affecting creditors' rights generally. The enforceability of its obligations
under such agreements is also subject to general principles of equity,
regardless of whether such enforceability is considered in a proceeding in
equity or at law, and indemnification sought in respect of securities laws
violations may be limited by public policy.
(c) No consent, license, approval or authorization of, or
registration with, any governmental authority, bureau or agency is required to
be obtained in connection with its execution, delivery or performance of each of
this Agreement or any Related Documents that has not been duly obtained and
which is not and will not be in full force and effect on the Closing Date,
except such that may be required by the blue sky laws of any state and except
those which the failure to obtain individually or in the aggregate, would not
have a material adverse effect on it or the transactions contemplated by, or its
ability to perform its obligations under, this Agreement or the Related
Documents to which it is a party.
(d) The execution, delivery and performance by it of each of this
Agreement and the Related Documents to which it is a party do not violate any
provision of any existing law or regulation applicable to it, any order or
decree of any court to which it is subject, its charter or by-laws or any
mortgage, indenture, contract or other agreement to which it is a party or by
which it or any significant portion of its properties is bound (other than
violations of such laws, regulations, orders, decrees, mortgages, indentures,
contracts and other agreements which do not affect the legality, validity or
enforceability of any of such agreements or the Receivables and which,
individually or in the aggregate, would not have a material adverse effect on it
or the transactions contemplated by, or its ability to perform its obligations
under, this Agreement or the Related Documents to which it is a party).
(e) To its knowledge, except to the extent already disclosed in
writing to the Administrative Agent and the Class A-2 Purchasers, there is no
litigation or administrative proceeding before any court, tribunal or
governmental body presently pending or threatened, against it with respect to
this Agreement and the Related Documents to which it is a party, the
transactions contemplated hereby or thereby or the issuance of the Notes, and
there is no such litigation or proceeding against it or any significant portion
of its properties, in each case which would have a material adverse effect on it
or the transactions contemplated by, or its ability to perform its respective
obligations under, this Agreement or the Related Documents to which it is a
party.
(f) It has delivered to the Administrative Agent and each Agent
complete and correct copies of, in the case of AmeriCredit, its audited
consolidated balance sheet as at June 30, 2001, and the related audited
consolidated statements of income, shareholders' equity and cash flows for the
fiscal year then ended, accompanied by the report thereon of
PriceWaterhouseCoopers, and its unaudited consolidated balance sheet as at
September 30, 2001, and the related unaudited consolidated statements of income,
shareholders' equity and cash flows for the fiscal quarter then ended. Such
financial statements fairly present in all material respects its financial
condition as at such date and the results of its operations for the period ended
on such dates, all in accordance with United States generally accepted
accounting principles or
- 36 -
regulatory accounting principles, as applicable, consistently applied, and since
June 30, 2001 there has been no material adverse change in its condition or
operations.
(g) The issuance and sale of the Notes is exempt from the
registration requirements of the Securities Act; the Indenture is exempt from
qualification under the Trust Indenture Act, and neither any Seller nor the
Issuer is required to be registered under the Investment Company Act.
(h) On the Closing Date and after giving effect to the issuance of
the Notes, no Event of Default, Termination Event or Servicer Termination Event
has occurred and is continuing, and no event, act or omission has occurred and
is continuing which, with the lapse of time, the giving of notice or both, would
constitute an Event of Default, Servicer Termination Event or other Termination
Event.
(i) No proceeds of any Borrowing will be used by the Issuer to
acquire any security in any transaction which is subject to Section 13 or 14 of
the Securities Exchange Act of 1934, as amended.
(j) The chief executive office of the Issuer is located at the
Corporate Trust Office (as defined in the Trust Agreement).
(k) The Issuer is solvent and will not become insolvent after giving
effect to the transactions contemplated by this Agreement and the Basic
Documents. The Issuer has no Indebtedness to any Person other than pursuant to
this Agreement and the other Basic Documents. The Issuer, after giving effect to
the transactions contemplated by this Agreement and the other Basic Documents,
will have adequate funds to conduct its business in the foreseeable future.
(l) The Issuer has filed on a timely basis all tax returns
(including, without limitation, foreign, federal, state, local and otherwise)
required to be filed, is not liable for taxes payable by any other Person and
has paid or made adequate provisions for the payment of all taxes, assessments
and other governmental charges due from the Issuer. No tax lien or similar
adverse claim has been filed, and no claim is being asserted, with respect to
any such tax, assessment or other governmental charge. Any taxes, fees and other
governmental charges payable by the Issuer in connection with the execution and
delivery of this Agreement and the other Basic Documents and the transactions
contemplated hereby or thereby including the transfer of each Receivable to the
Issuer have been paid or shall have been paid if and when due at or prior to the
Closing Date and the relevant Transfer Date, as the case may be.
(m) Each Servicer's Certificate and Borrowing Base Confirmation is
accurate in all material respects as of the date thereof.
(n) Each Receivable and other Collateral was purchased by, or
contributed to, the Issuer on the relevant Transfer Date pursuant to the Sale
and Servicing Agreement.
(o) All information heretofore or hereafter furnished by or on behalf
of the Issuer to any Purchaser, the Administrative Agent or any Agent in
connection with this Agreement or any transaction contemplated hereby is and
will be true and complete in all
- 37 -
material respects and does not and will not omit to state a material fact
necessary to make the statements contained therein not misleading.
(p) The Issuer is in compliance with ERISA and has not incurred and
does not expect to incur any liabilities (except for premium payments arising in
the ordinary course of business) to the Pension Benefit Guaranty Corporation (or
any successor thereto) under ERISA.
(q) There has been no material adverse change in the condition
(financial or otherwise), business, operations, results of operations, or
properties of the Issuer.
(r) The Issuer is not an "investment company" within the meaning of
the Investment Company Act of 1940, as amended, or is exempt from all provisions
of such Act.
(s) The Issuer has no trade names, fictitious names, assumed names or
"doing business as" names.
(t) The Issuer is operated as an entity with assets and liabilities
distinct from those of AmeriCredit and any other Affiliates of the Issuer, and
the Issuer hereby acknowledges that the Administrative Agent, each of the Agents
and each of the Purchasers are entering into the transactions contemplated by
this Agreement in reliance upon the Issuer's identity as a separate legal entity
from AmeriCredit and each such Affiliate.
There is not now, nor will there be at any time in the future, any
agreement or understanding between AmeriCredit or any Affiliate and the Issuer
(other than as expressly set forth herein) providing for the allocation or
sharing of obligations to make payments or otherwise in respect of any taxes,
fees, assessments or other governmental charges.
(u) The Issuer does not own or hold, directly or indirectly, any
capital stock or equity security of, or any equity interest in, any Person.
(v) The Sale and Servicing Agreement is the only agreement pursuant
to which the Issuer purchases Receivables, and the Basic Documents delivered to
the Administrative Agent represent all material agreements between AmeriCredit
and the Sellers, on the one hand, and the Issuer, on the other. The Issuer has
furnished to the Agent true, correct and complete copies of each Basic Document
to which the Issuer is a party, each of which is in full force and effect.
Neither the Issuer nor any Affiliate party thereto is in default of any of its
obligations thereunder in any material respect. Upon the purchase of each
Receivable pursuant to the Sale and Servicing Agreement, the Issuer shall be the
lawful owner of, and have good title to, such Receivable and all assets relating
thereto, free and clear of any Liens. All such assets are transferred to the
Issuer without recourse to a Seller except as described in the Purchase
Agreement. The purchases of such assets by the Issuer constitute valid and true
sales for consideration (and not merely a pledge of such assets for security
purposes) enforceable against creditors of the Sellers, and no such assets shall
constitute property of a Seller.
(w) One hundred percent (100%) of the outstanding Certificates are
and will be directly owned (both beneficially and of record) by at least two
holders and such holders shall not include any Person other than AmeriCredit or
AFC. All Certificates are and will be validly
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issued, and there are no options, warrants or other rights to acquire
Certificates or other equity rights in the Issuer.
(x) All Receivables included in the Class A Borrowing Base as of the
most recently delivered Servicer's Certificate or Borrowing Base Confirmation
are Eligible Receivables.
ARTICLE 5 COVENANTS
5.1 Covenants. Each of AmeriCredit, AFC and the Issuer, severally
covenants and agrees, in each case as to itself individually or in its capacity
as a Seller or Servicer, as applicable, each with respect to itself only, that
through the Termination Date and thereafter so long as any amount of the Class
A-2 Principal Balance shall remain outstanding or any monetary obligation
arising hereunder shall remain unpaid, unless the Required Class A-2 Owners and
the Required Class A-2 Purchasers shall otherwise consent in writing, that:
(a) Each of the Issuer, AmeriCredit, AFC, each Seller and the
Servicer shall perform in all material respects each of the respective
agreements, warranties and indemnities applicable to it under the Related
Documents to which it is a party and comply in all material respects with each
of the respective terms and provisions applicable to it under the Related
Documents to which it is party, which agreements, warranties and indemnities are
hereby incorporated by reference into this Agreement as if set forth herein in
full;
(b) The Issuer, each Seller and the Servicer, as applicable, shall
promptly furnish to the Administrative Agent and each Agent (i) a copy of each
certificate, report, statement, notice or other communication furnished by or on
behalf of such Issuer, Seller or Servicer, as applicable, to the holders of
Notes, to the Trustee, to the Trust Collateral Agent or to the Rating Agencies
concurrently therewith and furnish to the Administrative Agent promptly after
receipt thereof a copy of each notice, demand or other communication received by
or on behalf of such Issuer, Seller or the Servicer, as applicable, pursuant to
this Agreement, the Sale and Servicing Agreement or the Indenture, and (ii) such
other information, documents, records or reports respecting the Receivables, the
Issuer, either Seller or the Servicer which is in the possession or under the
control of the Issuer, either Seller or the Servicer, as the case may be, as the
Administrative Agent or any such Agent may from time to time reasonably request;
(c) Without limitation of the provisions of subsection 5.1(b) above,
the Servicer shall furnish to the Administrative Agent and each Agent (i) with
respect to each Distribution Date, a copy of the completed report furnished to
the Trustee pursuant to Section 2.1(b)(i) the Sale and Servicing Agreement, (ii)
a copy of each Officer's Certificate furnished to the Trustee pursuant to
Section 4.10 of the Sale and Servicing Agreement, and (iii) a copy of each
annual certified public accountants' reports received by the Trustee pursuant to
Section 4.11 the Sale and Servicing Agreement;
(d) Each Seller and the Servicer shall deliver to the Administrative
Agent and each Agent (i) within 90 days following the end of each of its fiscal
years, beginning with the fiscal year ending June 30, 2002, its audited
consolidated balance sheet as of the end of such fiscal year, and the related
audited consolidated statements of income and cash flows for such
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fiscal year, prepared in accordance with generally accepted accounting
principles and accompanied by the opinion of its independent certified public
accountants and (ii) within 45 days following the end of each of its fiscal
quarters, beginning with the fiscal quarter ending September 30, 2001, its
unaudited consolidated balance sheet as of the end of such fiscal quarter, and
the related unaudited consolidated statements of income and cash flows for such
fiscal quarter, prepared in accordance with generally accepted accounting
principles;
(e) Each of the Issuer, the Sellers and the Servicer shall furnish to
the Administrative Agent and each Agent promptly after known to such party,
information with respect to any action, suit or proceeding involving such party
or any of its Affiliates by or before any court or any Governmental Authority
which, if adversely determined, would have a material and adverse effect on such
party or the transactions contemplated by, or such party's ability to perform
its obligations under, this Agreement or the Related Documents;
(f) From the Closing Date until the Termination Date, each of the
Sellers, the Servicer and the Issuer, as applicable, will, at any time and from
time to time during regular business hours, on at least five Business Days' (or
if a Termination Event or event or condition which, with the passage of time or
the giving of notice, or both, would become a Termination Event has occurred,
one Business Day's) notice to the related Seller, the Servicer and the Issuer,
as the case may be, permit the Administrative Agent and each Agent, or its
agents or representatives, at the cost and expense of the Sellers, in the case
of one visit per year or, if a Termination Event or event or condition which,
with the passage of time or the giving of notice, or both, would become a
Termination Event has occurred, at any time, and otherwise at the expense of the
Administrative Agent or such Agent, as the case may be, (i) to examine all
books, records and documents (including computer tapes and disks) in the
possession or under the control of either Seller, the Servicer or the Issuer, as
the case may be, relating to the Receivables, and (ii) to visit the offices and
properties of each Seller, the Servicer or the Issuer, as applicable, for the
purpose of examining such materials described in clause (i) above. Any
information obtained by the Administrative Agent or an Agent pursuant to this
subsection 5.1(f) shall be held in confidence by the Administrative Agent or
such Agent, as applicable, in accordance with the provisions of Section 6.2
hereof, except that the Administrative Agent or such Agent may disclose such
information to any Class A-2 Purchaser which shall hold such information in
accordance with the provisions of Section 6.2 hereof;
(g) The Servicer shall furnish to the Administrative Agent and each
Agent, promptly after the occurrence of any Termination Event, a certificate of
an appropriate officer of the Servicer setting forth the circumstances of such
Termination Event and any action taken or proposed to be taken by the Servicer
or the related Seller with respect thereto;
ARTICLE 6 MUTUAL COVENANTS REGARDING CONFIDENTIALITY
6.1 Covenants. Each of AFC, individually and as Seller, the Issuer
and AmeriCredit, individually, as Seller and as Servicer, severally and with
respect to itself only, covenants and agrees to hold in confidence, and not
disclose to any Person, the terms of this Agreement (including any fees payable
in connection with this Agreement or the identity of any CP Conduit which is a
purchaser or beneficial owner of Class A-2 Notes under this Agreement), except
as the Administrative Agent or such Agent or Class A-2 Purchaser may have
consented to
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in writing prior to any proposed disclosure and except it may disclose such
information (i) to its officers, employees, agents and legal advisors who are
directly involved in the consideration of this Agreement (and then only on a
confidential basis) and (ii) as required by applicable law or compulsory legal
process; provided, that, in the case of clause (ii), AFC, each Seller, the
Issuer, AmeriCredit or the Servicer, as applicable, will use all reasonable
efforts to maintain confidentiality and will (unless otherwise prohibited by
law) notify the affected Administrative Agent, Agent or Class A-2 Purchaser of
its intention to make any such disclosure prior to making such disclosure.
6.2 Covenants of Class A-2 Purchasers. Subject to the provisions of
Section 8.1(c) hereof, the Administrative Agent and each Agent and Class A-2
Purchaser, severally and with respect to itself only, covenants and agrees that
any nonpublic information obtained by it pursuant to this Agreement shall be
held in confidence (it being understood that documents provided to the
Administrative Agent or any Agent or Class A-2 Purchaser hereunder may in all
cases be distributed to the Administrative Agent or to any Agent or Class A-2
Purchaser) except that the Administrative Agent or such Agent or Class A-2
Purchaser may disclose such information (i) pursuant to the order of any court
or administrative agency or in any pending legal or administrative proceeding
provided that, unless prohibited by a Requirement of Law, the Administrative
Agent or such Agent or Class A-2 Purchaser shall provide prompt notice of such
order to the affected party, (ii) upon the request or demand of any regulatory
authority having jurisdiction over the Administrative Agent or any Agent or
Class A-2 Purchaser or any of its affiliates, (iii) to the extent that such
information becomes publicly available other than by reason of improper
disclosure by the Administrative Agent or such Agent or Class A-2 Purchaser,
(iv) to its affiliates, employees, legal counsel, independent auditors and other
experts or agents who need to know such information and are informed of the
confidential nature of such information, (v) for purposes of establishing a "due
diligence" defense, (vi) which was available to the Administrative Agent or such
Agent or Class A-2 Purchaser on a nonconfidential basis from a source other than
the affected party, provided that such source was not to the knowledge of the
Administrative Agent or such Agent or Class A-2 Purchaser bound by a
confidentiality agreement with the affected party, (vii) has been independently
acquired or developed by the Administrative Agent or such Agent or Class A-2
Purchaser without violating any of the Administrative Agent or such Agent or
Class A-2 Purchaser's obligations under this engagement letter or (viii) at any
time following the date three years after the date of this Agreement. No
disclosure pursuant to subsection (viii) shall be made if the confidential
information consists of non-public personal information, which shall include all
Personally Identifiable Financial Information (as defined herein) in any list,
description or other grouping of consumers/customers, and publicly available
information pertaining to them, that is derived using any Personally
Identifiable Financial Information that is not publicly available, and shall
further include all Non-Public Personally Identifiable Information as defined by
federal regulations implementing the ▇▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Act, as amended from
time to time. "Personally Identifiable Financial Information" means any
information a consumer provides to a party in order to obtain financial product
or service, any information a party otherwise obtains about a consumer in
connection with providing a financial product or service to that consumer, and
any information about consumer resulting from any transaction involving a
financial product or service between a party and a consumer. Personally
Identifiable Financial Information may include, without limitation, a consumer's
first and last name, physical address, zip code, e-mail
- 41 -
address, phone number, Social Security number, birth date, account number and
any information that identifies, or when tied to the above information may
identify, a consumer.
ARTICLE 7 THE AGENTS
7.1 Appointment. Each Class A-2 Purchaser and each Agent hereby
consents and agrees to the appointment of the Administrative Agent pursuant to
the terms of the Indenture, and each such Class A-2 Purchaser and Agent
irrevocably authorizes the Administrative Agent, as the agent for such Class A-2
Purchaser or Agent, to take such action on its behalf under the provisions of
this Agreement and the other Related Documents and to exercise such powers and
perform such duties here under and thereunder as are expressly delegated to the
Administrative Agent by the terms of this Agreement and the other Related
Documents, together with such other powers as are reasonably incidental thereto.
Each Class A-2 Purchaser in each Purchaser Group hereby irrevocably designates
and appoints the Agent for such Purchaser Group as the agent of such Class A-2
Purchaser under this Agreement, and each such Class A-2 Purchaser irrevocably
authorizes such Agent, as the agent for such Class A-2 Purchaser, to take such
action on its behalf under the provisions of the Related Documents and to
exercise such powers and perform such duties thereunder as are expressly
delegated to such Agent by the terms of the Related Documents, together with
such other powers as are reasonably incidental thereto. Notwithstanding any
provision to the contrary elsewhere in this Agreement, neither the
Administrative Agent nor any Agent shall have any duties or responsibilities,
except those expressly set forth herein, or any fiduciary relationship with any
Class A-2 Purchaser, and no implied covenants, functions, responsibilities,
duties, obligations or liabilities shall be read into this Agreement or
otherwise exist against the Administrative Agent or any Agent. To the extent
that any provision of this Article 7 with respect to the relationship between an
Agent and the Class A-2 Purchasers in its Purchaser Group conflicts with any
agreement between such Class A-2 Purchasers and such Agent set forth in any
agreement with respect to a Support Facility, the terms of such other agreement
will control.
7.2 Delegation of Duties. Each Agent may execute any of its duties
under any of the Related Documents by or through agents or attorneys-in-fact and
shall be entitled to advice of counsel concerning all matters pertaining to such
duties. No Agent shall be responsible for the negligence or misconduct of any
agents or attorneys-in-fact selected by it with reasonable care.
7.3 Exculpatory Provisions. Neither any Agent nor any of its
officers, directors, employees, agents, attorneys-in-fact or Affiliates shall be
(a) liable to any of the Class A-2 Purchasers for any action lawfully taken or
omitted to be taken by it or such Person under or in connection with any of the
Related Documents (except for its or such Person's own gross negligence or
willful misconduct) or (b) responsible in any manner to any of the Class A-2
Purchasers for any recitals, statements, representations or warranties made by
AFC, either Seller, the Issuer, AmeriCredit, the Servicer, the Administrative
Agent, the Trust Collateral Agent, the Backup Servicer, or the Trustee or any
officer thereof contained in any of the Related Documents or in any certificate,
report, statement or other document referred to or provided for in, or received
by an Agent under or in connection with, any of the Related Documents or for the
value, validity, effectiveness, genuineness, enforceability or sufficiency of
this Agreement or any of the Related Documents or for any failure of AFC, either
Seller, the Issuer, AmeriCredit, the
- 42 -
Servicer, the Administrative Agent, the Trust Collateral Agent, the Backup
Servicer, or the Trustee to perform its obligations thereunder. No Agent shall
be under any obligation to any Class A-2 Purchaser to ascertain or to inquire as
to the observance or performance of any of the agreements contained in, or
conditions of, any of the other Related Documents, or to inspect the properties,
books or records of AFC, either Seller, the Issuer, AmeriCredit, the Servicer,
the Administrative Agent, the Trust Collateral Agent, the Backup Servicer, or
the Trustee.
7.4 Reliance by Agents. Each Agent shall be entitled to rely, and
shall be fully protected in relying, upon any writing, resolution, notice,
consent, certificate, affidavit, letter, cablegram, telegram, telecopy, telex or
teletype message, written statement, order or other document or conversation
believed by it to be genuine and correct and to have been signed, sent or made
by the proper Person or Persons and upon advice and statements of legal counsel
(including counsel to the Agent), independent accountants and other experts
selected by such Agent. Each Agent shall be fully justified in failing or
refusing to take any action under any of the Related Documents unless it shall
first receive such advice or concurrence of the Required Class A-2 Owners and
the Required Class A-2 Purchasers as it deems appropriate or it shall first be
indemnified to its satisfaction by the Class A-2 Purchasers or by the Committed
Purchasers in its Purchaser Group, against any and all liability and expense
which may be incurred by it by reason of taking or continuing to take any such
action. Each Agent shall in all cases be fully protected in acting, or in
refraining from acting, under any of the Related Documents in accordance with a
request of (i) Class A-2 Owners in its Purchaser Group having Percentage
Interests aggregating greater than 50% of the aggregate Percentage Interests of
all Class A-2 Owners in such Purchaser Group, and (ii) Committed Purchasers in
its Purchaser Group having Commitments aggregating greater than 50% of the
aggregate Commitments of all Committed Purchasers in such Purchaser Group, and
such request and any action taken or failure to act pursuant thereto shall be
binding upon all present and future Class A-2 Purchasers in such Purchaser
Group.
7.5 Notices. No Agent shall be deemed to have knowledge or notice of
the occurrence of any breach of this Agreement or the occurrence of any
Termination Event unless such Agent has received notice from the Servicer, the
Trustee or any Class A-2 Purchaser, referring to this Agreement and describing
such event. In the event any Agent receives such a notice, it shall promptly
give notice thereof to the Class A-2 Purchasers in its Purchaser Group. Each
Agent shall take such action with respect to such event as shall be reasonably
directed by (i) Class A-2 Owners in its Purchaser Group having Percentage
Interests aggregating greater than 50% of the aggregate Percentage Interests of
all Class A-2 Owners in such Purchaser Group, and (ii) Committed Purchasers in
its Purchaser Group having Commitments aggregating greater than 50% of the
aggregate Commitments of all Committed Purchasers in such Purchaser Group;
provided that unless and until such Agent shall have received such directions,
such Agent may (but shall not be obligated to) take such action, or refrain from
taking such action, with respect to such event as it shall deem advisable in the
best interests of the Class A-2 Purchasers or of the Class A-2 Purchasers in its
Purchaser Group, as applicable.
7.6 Non-Reliance on Agents and Other Class A-2 Purchasers. Each Class
A-2 Purchaser expressly acknowledges that no Agent nor any of its officers,
directors, employees, agents, attorneys-in-fact or Affiliates has made any
representations or warranties to it and that no act by any Agent hereafter
taken, including any review of the affairs of AFC, the Sellers, the
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Issuer, AmeriCredit, the Servicer, the Administrative Agent, the Trust
Collateral Agent, the Backup Servicer or the Trustee shall be deemed to
constitute any representation or warranty by any Agent to any Class A-2
Purchaser. Each Class A-2 Purchaser represents to each Agent that it has,
independently and without reliance upon any Agent or any other Class A-2
Purchaser, and based on such documents and information as it has deemed
appropriate, made its own appraisal of and investigation into the business,
operations, property, financial and other condition and creditworthiness of AFC,
the Sellers, the Issuer, AmeriCredit, the Servicer, the Administrative Agent,
the Trust Collateral Agent, the Backup Servicer, the Trustee, and the
Receivables and made its own decision to purchase its interest in the Class A-2
Notes hereunder and enter into this Agreement. Each Class A-2 Purchaser also
represents that it will, independently and without reliance upon any Agent or
any other Class A-2 Purchaser, and based on such documents and information as it
shall deem appropriate at the time, continue to make its own analysis,
appraisals and decisions in taking or not taking action under any of the Related
Documents, and to make such investigation as it deems necessary to inform itself
as to the business, operations, property, financial and other condition and
creditworthiness of AFC, the Sellers, the Issuer, AmeriCredit, the Servicer, the
Administrative Agent, the Trust Collateral Agent, the Backup Servicer, the
Trustee, and the Receivables. Except for notices, reports and other documents
received under Section 5 hereof, no Agent shall have any duty or responsibility
to provide any Class A-2 Purchaser with any credit or other information
concerning the business, operations, property, condition (financial or
otherwise), prospects or creditworthiness of AFC, the Sellers, the Issuer,
AmeriCredit, the Servicer, the Administrative Agent, the Trust Collateral Agent,
the Backup Servicer, the Trustee, and the Receivables which may come into the
possession of such Agent or any of its officers, directors, employees, agents,
attorneys-in-fact or Affiliates.
7.7 Indemnification. The Committed Purchasers in each Purchaser Group
agree to indemnify the Agent for such Purchaser Group in its capacity as such
(without limiting the obligation (if any) of AFC, the Sellers, the Issuer,
AmeriCredit and the Servicer to reimburse such Agent for any such amounts),
ratably according to their respective Commitments (or, if the Commitments have
terminated, Percentage Interests), in each case from and against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind whatsoever which may at any time
(including at any time following the payment of the obligations under this
Agreement, including the Class A-2 Principal Balance) be imposed on, incurred by
or asserted against such Agent in any way relating to or arising out of this
Agreement, or any documents contemplated by or referred to herein or the
transactions contemplated hereby or any action taken or omitted by the Agent
under or in connection with any of the foregoing; provided that no Class A-2
Purchaser shall be liable for the payment of any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of an Agent resulting from its own gross negligence or
willful misconduct. The agreements in this subsection shall survive the payment
of the obligations under this Agreement, including the Class A-2 Principal
Balance.
7.8 Agents in their Individual Capacity. Each Agent and its
Affiliates may make loans to, accept deposits from and generally engage in any
kind of business with AFC, either Seller, the Issuer, AmeriCredit, the Servicer,
the Administrative Agent, the Trust Collateral Agent, the Backup Servicer, or
the Trustee as though such Agent were not an agent hereunder. In addition, the
Class A-2 Purchasers acknowledges that one or more Persons which are Agents may
act (i) as administrator, sponsor or agent for one or more CP Conduits and in
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such capacity acts and may continue to act on behalf of each such CP Conduit in
connection with its business, and (ii) as the agent for certain financial
institutions under the liquidity and credit enhancement agreements relating to
this Agreement to which any one or more CP Conduits is party and in various
other capacities relating to the business of any such CP Conduit under various
agreements. Any such Person, in its capacity as Agent, shall not, by virtue of
its acting in any such other capacities, be deemed to have duties or
responsibilities hereunder or be held to a standard of care in connection with
the performance of its duties as an Agent other than as expressly provided in
this Agreement. Any Person which is an Agent may act as an Agent without regard
to and without additional duties or liabilities arising from its role as such
administrator or agent or arising from its acting in any such other capacity.
7.9 Successor Agents. Any Agent may resign as Agent upon ten days'
notice to the Class A-2 Purchasers in its Purchaser Group, the Administrative
Agent and each other Agent, the Trustee, the Sellers and the Servicer with such
resignation becoming effective upon a successor agent succeeding to the rights,
powers and duties of the Agent pursuant to this Section 7.9. If an Agent shall
resign as Agent under this Agreement, then (i) Class A-2 Owners in its Purchaser
Group having Percentage Interests aggregating greater than 51% of the aggregate
Percentage Interests of all Class A-2 Owners in such Purchaser Group, and (ii)
Committed Purchasers in its Purchaser Group having Commitments aggregating
greater than 51% of the aggregate Commitments of all Committed Purchasers in
such Purchaser Group shall appoint from among the Committed Purchasers in such
Purchaser Group a successor agent for such Purchaser Group. Any successor agent
shall succeed to the rights, powers and duties of resigning Agent, and the term
"Agent" shall mean such successor agent effective upon its appointment, and the
former Agent's rights, powers and duties as Agent shall be terminated, without
any other or further act or deed on the part of such former Agent or any of the
parties to this Agreement. After the retiring Agent's resignation as Agent, the
provisions of this Article 7 shall inure to its benefit as to any actions taken
or omitted to be taken by it while it was Agent under this Agreement.
ARTICLE 8 SECURITIES LAWS; TRANSFERS
8.1 Transfers of Class A-2 Notes.
(a) Each Class A-2 Purchaser shall execute and deliver to the Issuer
on the Closing Date an Investment Letter substantially in the form attached
hereto as Exhibit A. Each Class A-2 Owner agrees that the beneficial interest in
the Class A-2 Notes purchased by it will be acquired for investment only and not
with a view to any public distribution thereof, and that such Class A-2 Owner
will not offer to sell or otherwise dispose of any Class A-2 Note acquired by it
(or any interest therein) in violation of any of the requirements of the
Securities Act or any applicable state or other securities laws. Each Class A-2
Owner acknowledges that it has no right to require the AmeriCredit, AFC or the
Issuer to register, under the Securities Act of 1933, as amended, or any other
securities law, the Class A-2 Notes (or the beneficial interest therein)
acquired by it pursuant to this Agreement, any Joinder Supplement or any
Transfer Supplement. Each Class A-2 Owner hereby confirms and agrees that in
connection with any transfer or syndication by it of an interest in the Class
A-2 Notes, such Class A-2 Owner has not engaged and will not engage in a general
solicitation or general advertising including advertisements, articles, notices
or other communications published in any newspaper, magazine or similar media
- 45 -
or broadcast over radio or television, or any seminar or meeting whose attendees
have been invited by any general solicitation or general advertising.
(b) Each initial purchaser of a Class A-2 Note or any interest
therein and any Assignee thereof or Participant therein shall certify to the
Issuer, the Sellers, the Servicer, the Trustee, the Administrative Agent and the
Agent for its Purchaser Group that it is either (i) a citizen or resident of the
United States, (ii) a corporation or other entity organized in or under the laws
of the United States or any political subdivision thereof or (iii) a person not
described in (i) or (ii) who is entitled to receive payments under this
Agreement and with respect to the Class A-2 Notes without deduction or
withholding of any United States federal income taxes and whose ownership of any
interest in a Class A-2 Note will not result in any withholding obligation with
respect to any payments with respect to the Class A-2 Notes by any Person and
who will furnish to the Issuer, the Sellers, the Servicer, the Trustee, the
Administrative Agent, the Agent for its Purchaser Group, and to the Class A-2
Owner making the Transfer the forms described in subsection 2.5(c).
(c) Any sale, transfer, assignment, participation, pledge,
hypothecation or other disposition (a "Transfer") of a Class A-2 Note, a
Commitment or any interest therein may be made only in accordance with this
Section 8.1. Any partial Transfer (other than from a CP Conduit to a related
Support Party) of an interest in a Class A-2 Note, a Commitment or any Purchaser
Percentage by a Committed Purchaser shall be in respect of, at least $5,000,000
in the aggregate, which may be composed of (A) Class A-2 Principal Balance or
(B) to the extent in excess of the Class A-2 Principal Balance subject to such
Transfer, Commitment hereunder. Any Transfer of an interest in a Class A-2 Note
otherwise permitted by this Section 8.1 will be permitted only if it consists of
a pro rata percentage interest in all payments made with respect to the Class
A-2 Purchaser's beneficial interest in such Class A-2 Note. No Class A-2 Note or
any interest therein may be Transferred by Assignment or Participation to any
Person (each, a "Transferee") unless the Transferee is a Permitted Transferee
and prior to the Transfer the Transferee shall have executed and delivered to
the Agent and the Issuer an Investment Letter. A transferring Class A-2
Purchaser shall promptly notify the Servicer of each Transfer other than (x) an
Assignment (with respect to which the Administrative Agent is obligated to
deliver notice) and (y) a pledge or hypothecation to a Support Party by a Class
A-2 Purchaser which is a Conduit Purchaser.
Each of AFC, the Sellers, the Issuer, AmeriCredit and the
Servicer authorizes each Class A-2 Purchaser to disclose to any Transferee and
Support Party and any prospective Transferee or Support Party any and all
confidential information in the Class A-2 Purchaser's possession concerning this
Agreement or the Related Documents or concerning the Receivables or such party
which has been delivered to any Agent or such Class A-2 Purchaser pursuant to
this Agreement or the Related Documents (including information obtained pursuant
to rights of inspection granted hereunder) or which has been delivered to such
Class A-2 Purchaser by or on behalf of AFC, either Seller, the Issuer,
AmeriCredit and the Servicer in connection with such Class A-2 Purchaser's
evaluation of the Receivables, AFC, the Sellers, the Issuer, AmeriCredit or the
Servicer prior to becoming a party to, or purchasing an interest in this
Agreement or the Class A-2 Notes; provided that prior to any such disclosure,
such Transferee or Support Party or prospective Transferee or Support Party
shall have agreed in writing to comply
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with the confidentiality provisions of Section 6.2, and a copy of such written
agreement as to compliance has been finished to the Servicer and the
Administrative Agent.
(d) Each Class A-2 Purchaser may, in accordance with applicable law,
at any time grant participations in all or part of its Commitment or its
interest in the Class A-2 Notes, including the payments due to it under this
Agreement and the Related Documents (each, a "Participation"), to any Permitted
Transferee (each such Permitted Transferee, a "Participant"); provided, however,
that no Participation shall be granted to any Person (i) unless and until the
Agent for such Class A-2 Purchaser's Purchaser Group shall have consented
thereto, (ii) the conditions to Transfer specified in this Agreement, including
in subsection 8.1(c) hereof, shall have been satisfied, and (iii) that such
Participation consists of a pro rata percentage interest in all payments made
with respect to such Class A-2 Purchaser's beneficial interest (if any) in the
Class A-2 Notes. In connection with any such Participation, each Agent for a
Purchaser Group shall maintain a register of each Participant of members of its
Purchaser Group and the amount of each related Participation. Each Class A-2
Purchaser hereby acknowledges and agrees that (A) any such Participation will
not alter or affect such Class A-2 Purchaser's direct obligations hereunder, and
(B) neither the Trustee, the Issuer, the Trust Collateral Agent, the Backup
Servicer, any Seller nor the Servicer shall have any obligation to have any
communication or relationship with any Participant. Each Class A-2 Purchaser and
each Participant shall comply with the provisions of subsection 2.5(c) of this
Agreement. No Participant shall be entitled to Transfer all or any portion of
its Participation, without the prior written consent of the Agent for its
Purchaser Group. Each Participant shall be entitled to receive additional
amounts and indemnification pursuant to Sections 2.4, 2.5 and 2.6 hereof as if
such Participant were a Class A-2 Purchaser and such Sections applied to its
Participation; provided, in the case of Section 2.5, that such Participant has
complied with the provisions of subsection 2.5(c) hereof as if it were a Class
A-2 Purchaser; provided, further, no Participant shall be entitled to receive
additional amounts or indemnification in amounts in excess of those the
participating Class A-2 Purchaser would have been entitled to receive in respect
of the amount of the participation transferred to such Participant had no such
participation occurred. Each Class A-2 Purchaser shall give the Agent for its
Purchaser Group notice of the consummation of any sale by it of a Participation.
It shall be a further condition to the grant of any Participation that the
Participant shall have certified, represented and warranted that (i) it is
entitled to (A) receive payments with respect to its participation without
deduction or withholding of any United States federal income taxes and (B) an
exemption from United States backup withholding tax, and (ii) to the extent such
Participant has not otherwise directly provided such forms to the Issuer, the
Sellers, the Servicer and the Trustee, (A) prior to the date on which the first
interest payment is due to such Participant, such Participant will provide to
the Issuer, AFC, the Servicer and Trustee, the forms described in subsection
2.5(c) (subject to the Issuer's consent, as applicable and as set forth therein)
as though the Participant were a Class A-2 Purchaser, and (B) such Participant
similarly will provide subsequent forms as described in subsection 2.5(c) with
respect to such participant as though it were a Class A-2 Purchaser.
(e) Each Class A-2 Purchaser may, with the consent of the Agent for
its Purchaser Group and in accordance with applicable law, sell, transfer or
assign (each, an "Assignment"), to any Permitted Transferee (each, an
"Assignee") all or any part of its Commitment (if any) or its interest in the
Class A-2 Notes and its rights and obligations under this Agreement and the
Related Documents pursuant to an agreement substantially in the form
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attached hereto as Exhibit B hereto (a "Transfer Supplement"), executed by such
Assignee and such Class A-2 Purchaser and delivered to the Agent for its
Purchaser Group for its acceptance and consent; provided, however, that (i) no
such assignment or sale shall be effective unless and until the conditions to
Transfer specified in this Agreement, including in subsection 8.1(c) hereof,
shall have been satisfied, (ii) no assignment or sale by a Committed Purchaser
shall be effective without the consent of the CP Conduit in its Purchaser Group,
(iii) no assignment or sale which results in the addition of a new Purchaser
Group shall be effective without the consent of the Administrative Agent (which
consent shall not unreasonably be withheld), and (iv) in no event shall the
consent of an Agent, the Administrative Agent or the Issuer be required in the
case of an assignment by a CP Conduit of its interest in the Class A-2 Notes and
its rights and obligations under this Agreement and the Related Documents to any
one or more of its Committed Purchasers in its Purchaser Group or to any Support
Party with respect to such CP Conduit; provided, further, however, that, with
respect to any Assignment by one member of a Purchaser Group to another Person
already a member of such Purchaser Group of its rights with respect to the Class
A-2 Note (but none of its Commitment, if any), it shall not be necessary to
execute a Transfer Supplement so long as the Agent for such Purchaser Group
gives prompt written notice of such Assignment to the Administrative Agent, the
Servicer and the Issuer. From and after the effective date determined pursuant
to such Transfer Supplement, (x) the Assignee thereunder shall be a party hereto
and, to the extent provided in such Transfer Supplement, have the rights and
obligations of a Class A-2 Purchaser hereunder as set forth therein and (y) the
transferor Class A-2 Purchaser shall, to the extent provided in such Transfer
Supplement, be released from its Commitment and other obligations under this
Agreement; provided, however, that after giving effect to each such Assignment,
the obligations released by any such Class A-2 Purchaser shall have been assumed
by an Assignee or Assignees. Such Transfer Supplement shall be deemed to amend
this Agreement to the extent, and only to the extent, necessary to reflect the
addition of such Assignee and the resulting adjustment of Percentage Interests,
Purchaser Percentages or Liquidity Percentages arising from the Assignment. Upon
its receipt and acceptance of a duly executed Transfer Supplement, the Agent for
the applicable Purchaser Group (or, in the case of an Assignment by which a new
Purchaser Group is added to this Agreement, the Administrative Agent) shall on
the effective date determined pursuant thereto give notice of such acceptance to
the Issuer, the Sellers, the Servicer and the Trustee.
Upon instruction to register a transfer of a Class A-2 Purchaser's
beneficial interest in the Class A-2 Notes (or portion thereof) and surrender
for registration of transfer of such Class A-2 Purchaser's Class A-2 Note(s) (if
applicable) and delivery to the Issuer of an Investment Letter, executed by the
registered owner (and the beneficial owner if it is a Person other than the
registered owner), and receipt by the Trustee of a copy of the duly executed
related Transfer Supplement and such other documents as may be required under
this Agreement, such beneficial interest in the Class A-2 Notes (or portion
thereof) shall be transferred in the records of the Trustee and the applicable
Agent and, if requested by the Assignee, new Class A-2 Notes shall be issued to
the Assignee and, if applicable, the transferor Class A-2 Purchaser in amounts
reflecting such Transfer as provided in the Indenture. Successive registrations
of Transfers as aforesaid may be made from time to time as desired, and each
such registration of a transfer to a new registered owner shall be noted on the
Note Register.
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(f) Each Class A-2 Purchaser may pledge its interest in the Class A-2
Notes to any Federal Reserve Bank as collateral in accordance with applicable
law.
(g) Any Class A-2 Purchaser shall have the option to change its
Investing Office, provided that such Class A-2 Purchaser shall have prior to
such change in office complied with the provisions of subsection 2.5(c) hereof
and provided further that such Class A-2 Purchaser shall not be entitled to any
amounts otherwise payable under Section 2.4 or 2.5 hereof resulting solely from
such change in office unless such change in office was mandated by applicable
law or by such Class A-2 Purchaser's compliance with the provisions of this
Agreement.
(h) Each Support Party shall be entitled to receive additional
payments and indemnification pursuant to Sections 2.4, 2.5 and 2.6 hereof as
though it were a Class A-2 Purchaser and such Section applied to its interest in
or commitment to acquire an interest in the Class A-2 Notes; provided that such
Support Party shall not be entitled to additional payments pursuant to (i)
Section 2.4 by reason of Regulatory Changes which occurred prior to the date it
became a Support Party or (ii) Section 2.5 attributable to its failure to
satisfy the requirements of subsection 2.5(c) as if it were a Class A-2
Purchaser, and provided further, that unless such Support Party is a Permitted
Transferee or has been consented to by the Issuer, such Support Party shall be
entitled to receive additional amounts pursuant to Sections 2.4 or 2.5 only to
the extent that its related CP Conduit would have been entitled to receive such
amounts in the absence of the commitment and Support Advances from such Support
Party; provided, further, no Participant shall be entitled to receive additional
amounts or indemnification in amounts in excess of those the participating Class
A-2 Purchaser would have been entitled to receive in respect of the amount of
the participation transferred to such Participant had no such participation
occurred.
(i) Each Support Party claiming increased amounts described in
Sections 2.4 or 2.5 hereof shall furnish, through its related CP Conduit, to the
Issuer, the Sellers, the Servicer, the Trustee and the Agent for the applicable
Purchaser Group a certificate setting forth the basis and amount of each request
by such Support Party for any such amounts referred to in Sections 2.4 or 2.5,
such certificate to be conclusive with respect to the factual information set
forth therein absent manifest error.
(j) In the event that a Committed Purchaser is a Downgraded
Purchaser, the related CP Conduit shall have the right to replace such Committed
Purchaser with a replacement Committed Purchaser consented to by the Issuer
(which consent shall not be withheld except for a commercially reasonable
purpose or reason), which replacement Purchaser shall succeed to the rights of
such Committed Purchaser under this Agreement in respect of its Commitment as a
Committed Purchaser, and such Committed Purchaser shall assign such Commitment
and its interest in the Class A-2 Notes to such replacement Committed Purchaser
in accordance with the provisions of this Section 8.1; provided, that (A) such
Committed Purchaser shall not be replaced hereunder with a new investor until
such Committed Purchaser has been paid in full its Percentage Interest of the
Class A-2 Principal Balance and all accrued and unpaid interest thereon by such
new investor and all other amounts (including all amounts owing under Sections
2.4, 2.5 and 2.6 of this Agreement) owed to it and to all Participants with
respect to such Committed Purchaser pursuant to this Agreement, and (ii) if the
Committed Purchaser to be
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replaced is an Agent, a replacement agent shall have been appointed in
accordance with Section 7.9 hereof, and the Agent to be replaced shall have been
paid all amounts owing to it as agent pursuant to this Agreement. For purposes
of this subsection, a Committed Purchaser shall be a "Downgraded Purchaser" if
and so long as the credit rating assigned to its short-term obligations by
Moody's or Standard & Poor's on the date on which it became a party to this
Agreement shall have been reduced or withdrawn, or as may be otherwise agreed
among the Issuer, such Committed Purchaser and the CP Conduit in its Purchaser
Group. Any Committed Purchaser which becomes a Downgraded Purchaser will give
the Issuer and the Servicer notice of such reduction or withdrawal within 10
Business Days after the date thereof.
(k) The Commitment of each Committed Purchaser in respect of its
related CP Conduit shall not relate to any Assignee of such CP Conduit. Upon any
Assignment by a CP Conduit of its Percentage Interest in the Class A-2 Principal
Balance to a Person which is not one of its Committed Purchasers, the Commitment
of each of its related Committed Purchasers shall be reduced by an amount equal
to the assigned Percentage Interest times such Commitment. Without the prior
consent of the Administrative Agent and the Issuer, a CP Conduit may not enter
into an Assignment with any Assignee other than (i) one or more of its Committed
Purchasers, or (ii) one or more other Persons which, after giving effect to such
Assignment and any concurrent Assignments, will be CP Conduits having Committed
Purchasers which have, aggregate new Commitments equal to the aggregate
reductions of Commitments pursuant to the preceding sentence.
(l) In the event that a Class A-2 Purchaser (or a Participant or
Support Party for such Class A-2 Purchaser) is entitled to receive additional
payments pursuant to Section 2.4 or 2.5 hereof, the Issuer shall have the right
to seek a Replacement Purchaser not so affected and which is reasonably
acceptable to the Agent for such Purchaser Group to replace such affected Class
A-2 Purchaser. No replacement of a Class A-2 Purchaser shall be effected
pursuant to this subsection 8.1(l) if, after giving effect thereto, any amounts
shall be owing to the replaced Class A-2 Purchaser hereunder. Each affected
Class A-2 Purchaser hereby agrees to take all actions reasonably necessary to
permit a Replacement Purchaser to succeed to its rights and obligations
hereunder.
Notwithstanding the foregoing or the provisions of subsection 8.1(j),
(i) if the Class A-2 Purchaser being replaced pursuant to this subsection is a
Committed Purchaser, the Replacement Purchaser shall be acceptable to the CP
Conduit in its Purchaser Group in its sole discretion and (ii) if the Class A-2
Purchaser being replaced is a CP Conduit, the Replacement Purchaser shall be
acceptable to each Committed Purchaser in its Purchaser Group and to the
Administrative Agent in their sole discretion, and in either such case it shall
be a condition of such replacement that such Replacement Purchaser enter into
substitute Support Facilities for those to which the Class A Purchaser being
replaced is a party on terms mutually acceptable to the parties thereto. In
addition, if the Class A-2 Purchaser to be replaced is an Agent or the
Administrative Agent or is a CP Conduit which is administered or sponsored by an
Agent or the Administrative Agent, it shall be a condition of such replacement
that a replacement Agent or Administrative Agent shall have been appointed in
accordance with Section 7.9, and the Agent or Administrative Agent to be
replaced shall have been paid all amounts owing to it as Agent or Administrative
Agent, as applicable pursuant to this Agreement.
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8.2 Tax Characterization. It is the intention of the parties hereto
that the Class A-2 Notes be treated for tax purposes as indebtedness, and the
parties hereto agree to so treat the Class A-2 Notes (to the extent permitted by
law).
ARTICLE 9 MISCELLANEOUS
9.1 Amendments and Waivers. This Agreement may not be amended,
supplemented or modified nor may any provision hereof be waived except in
accordance with the provisions of this Section 9.1. With the written consent of
the Required Class A-2 Owners and the Required Class A-2 Purchasers and subject
to the satisfaction of the Rating Agency Condition, the Administrative Agent,
each Agent, the Issuer, the Sellers and the Servicer may, from time to time,
enter into written amendments, supplements, waivers or modifications hereto for
the purpose of adding any provisions to this Agreement or changing in any manner
the rights of any party hereto or waiving, on such terms and conditions as may
be specified in such instrument, any of the requirements of this Agreement;
provided, however, that no such amendment, supplement, waiver or modification
shall (i) reduce the amount or extend the maturity of any Class A-2 Note or
reduce the rate or extend the time of payment of interest thereon, increase the
obligation, if any, of any CP Conduit, or reduce or alter the timing of any
other amount payable to any Class A-2 Purchaser hereunder or under the Sale and
Servicing Agreement or the Indenture or increase the Commitment of any Committed
Purchaser, in each case without the consent of the Class A-2 Purchasers affected
thereby, (ii) amend, modify or waive any provision of this Section 9.1, or the
definition of "Class A-2 Principal Balance", or reduce the percentage specified
in the definition of Majority Class A-2 Owners, Majority Class A-2 Purchasers,
Required Class A-2 Owners or Required Class A-2 Purchasers, in each case without
the written consent of all Class A-2 Purchasers or (iii) amend, modify or waive
any provision of Section 7 of this Agreement without the written consent of each
Agent affected by such amendment, modification or wavier. Any waiver of any
provision of this Agreement shall be limited to the provisions specifically set
forth therein for the period of time set forth therein and shall not be
construed to be a waiver of any other provision of this Agreement.
An Agent may cast any vote or give any consent or direction under the
Sale and Servicing Agreement, the Indenture or other Related Documentation on
behalf of the Holders (as defined in the Indenture) of Class A-2 Notes in its
Purchaser Group if it has been directed to do so by Class A-2 Owners in such
Purchaser Group having Percentage Interests aggregating greater than 50% of the
aggregate Percentage Interests of all Class A-2 Owners in such Purchaser Group.
9.2 Notices.
(a) All notices, requests and demands to or upon the respective
parties hereto to be effective shall be in writing (including by telecopy), and,
unless otherwise expressly provided herein, shall be deemed to have been duly
given or made when delivered by hand, or, in the case of mail or telecopy
notice, when received, addressed as follows or, with respect to an Agent or
Class A-2 Purchaser, as set forth on the signature pages hereto or in its
respective Joinder Supplement or Transfer Supplement, or, with respect to the
Issuer, the Sellers or the Servicer, as set forth in the Indenture or to such
other address as may be hereafter notified by the respective parties hereto:
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Administrative Agent: Deutsche Bank Trust Company Americas
Mail Stop: NYC1701
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇▇▇ / ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telefax: (▇▇▇) ▇▇▇-▇▇▇▇
(b) Unless otherwise directed by the Administrative Agent, all
payments to it shall be made by federal wire to the Administrative Agent, at its
account (Account # ▇▇-▇▇▇-▇▇▇ Reference: AmeriCredit Corp Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇)
maintained at Deutsche Bank Trust Company Americas, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ (ABA#
021-001-033), or such other account as the Administrative Agent may designate in
writing to the Issuer. The Administrative Agent shall distribute such payments
to the Class A-2 Purchasers promptly upon receipt. Unless otherwise directed by
an Agent or Class A-2 Purchaser, all payments to it shall be made by federal
wire to the account specified on the signature pages hereto or in the Joinder
Supplement or Transfer Supplement by which it became a party hereto (provided,
in the case of an account specified in a Joinder Supplement or Transfer
Supplement, that the Agent, the Issuer, the Servicer or the Trustee, as the case
may be, shall have received notice thereof).
(c) The Administrative Agent will promptly forward copies of all
certificates, notices and reports received hereunder to the Agents.
9.3 No Waiver; Cumulative Remedies. No failure to exercise and no
delay in exercising, on the part of any party hereto, any right, remedy, power
or privilege under any of the Related Documents shall operate as a waiver
thereof; nor shall any single or partial exercise of any right, remedy, power or
privilege under any of the Related Documents preclude any other or further
exercise thereof or the exercise of any other right, remedy, power or privilege.
The rights, remedies, powers and privileges provided in the Related Documents
are cumulative and not exclusive of any rights, remedies, powers and privileges
provided by law.
9.4 Successors and Assigns. This Agreement shall be binding upon and
inure to the benefit of AFC, the Sellers, AmeriCredit, the Servicer, the Issuer,
the Administrative Agent, the Agents, the Class A-2 Purchasers, any Transferee
and their respective successors and permitted assigns, and, to the extent
provided herein, to each Indemnitee, Participant and Support Party and their
respective successors and assigns; provided that, except as provided in Section
6.4, 7.3 or 11.4 of the Sale and Servicing Agreement, AFC, the Sellers,
AmeriCredit and the Servicer may not assign or transfer any of their respective
rights or obligations under this Agreement without the prior written consent of
the Required Class A-2 Owners and the Required Class A-2 Purchasers; provided,
further, that in connection with any such assignment (including an assignment by
operation of law), the assignee shall expressly agree in writing to assume all
the obligations of AFC, a Seller, AmeriCredit or the Servicer, as applicable,
hereunder and provided further that no assignment permitted hereunder shall
relieve AFC, either Seller, AmeriCredit or the Servicer, as applicable, from any
obligations arising hereunder prior to such
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assignment (including obligations with respect to breaches of representations
and warranties made herein).
9.5 Successors to Servicer. In the event that a transfer of servicing
occurs under Section 8.3 of the Sale and Servicing Agreement, (i) from and after
the effective date of such transfer, the Successor Servicer shall be the
successor in all respects to the Servicer and shall be responsible for the
performance of all functions to be performed by the Servicer from and after such
date, except as provided in the Sale and Servicing Agreement, and shall be
subject to all the responsibilities, duties and liabilities relating thereto
placed on the Servicer by the terms and provisions hereof, and all references in
this Agreement to the Servicer shall be deemed to refer to the Successor
Servicer, and (ii) as of the date of such transfer, the Successor Servicer shall
be deemed to have made with respect to itself the representations and warranties
made in Section 4.1 hereof (in the case of subsection 4.1(a) with appropriate
factual changes); provided, however, that the references to the Servicer
contained in Section 5.1 of this Agreement shall be deemed to refer to the
Servicer with respect to responsibilities, duties and liabilities arising out of
an act or acts, or omission, or an event or events giving rise to such
responsibilities, duties and liabilities and occurring during such time that the
Servicer was Servicer under this Agreement and shall be deemed to refer to the
Successor Servicer with respect to responsibilities, duties and liabilities
arising out of an act or acts, or omission, or an event or events giving rise to
such responsibilities, duties and liabilities and occurring during such time
that the Successor Servicer acts as Servicer under this Agreement; provided,
however, to the extent that an obligation to indemnify Indemnitees under Section
2.6 hereof arises as a result of any act or failure to act of any Successor
Servicer in the performance of servicing obligations under the Sale and
Servicing Agreement, such indemnification obligation shall be of the Successor
Servicer and not its predecessor. Upon any transfer of servicing to a Successor
Servicer, such Successor Servicer shall furnish to the Administrative Agent and
each Agent copies of its audited annual financial statements for each of the
three preceding fiscal years or if the Trustee or any other banking institution
becomes the Successor Servicer, such Successor Servicer shall provide, in lieu
of the audited financial statements required in the immediately preceding
clause, complete and correct copies of the publicly available portions of its
Consolidated Reports of Condition and Income as submitted to the FDIC for the
two most recent year end periods.
9.6 Counterparts. This Agreement may be executed by one or more of
the parties to this Agreement on any number of separate counterparts, and all of
said counterparts taken together shall be deemed to constitute one and the same
instrument.
9.7 Severability. Any provisions of this Agreement which are
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provisions in any other jurisdiction.
9.8 Integration. This Agreement and the Supplemental Fee Letters, as
applicable, represent the agreement of AFC (individually and as Seller),
AmeriCredit (individually, as Seller and as Servicer), the Issuer, the
Administrative Agent, the Agents and the Class A-2 Purchasers with respect to
the subject matter hereof, and there are no promises,
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undertakings, representations or warranties by any party hereto relative to
subject matter hereof not expressly set forth or referred to herein or therein
or in the Related Documents.
9.9 Governing Law. THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE
WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO
ITS CONFLICT OF LAW PROVISIONS (OTHER THAN SECTIONS 5-1401 AND 5-1402 OF THE NEW
YORK GENERAL OBLIGATIONS LAW).
9.10 Jurisdiction; Consent to Service of Process. Each of the parties
hereto hereby irrevocably and unconditionally (i) submits, for itself and its
property, to the nonexclusive jurisdiction of any New York State court in New
York County or federal court of the United States of America for the Southern
District of New York, and any appellate court from any thereof, in any action or
proceeding arising out of or relating to this Agreement, or for recognition or
enforcement of any judgment arising out of or relating to this Agreement; (ii)
agrees that all claims in respect of any such action or proceeding may be heard
and determined in such New York State or, to the extent permitted by law,
federal court; (iii) agrees that a final judgment in any such action 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; (iv) consents that
any such action or proceeding may be brought in such courts and waives any
objection it may now or hereafter have to the laying of venue of any such action
or proceeding in any such court and any objection it may now or hereafter have
that such action or proceeding was brought in an inconvenient court, and agrees
not to plead or claim the same; (v) consents to service of process in the manner
provided for notices in Section 9.2 of this Agreement (provided that, nothing in
this Agreement shall affect the right of any such party to serve process in any
other manner permitted by law); and (vi) waives, to the maximum extent not
prohibited by law, any right it may have to claim or recover in any such action
or proceeding any special, exemplary, punitive or consequential damages.
9.11 Termination. This Agreement shall remain in full force and effect
until the earlier to occur of (a) payment in full of the Class A-2 Principal
Balance and all other amounts payable to the Class A-2 Purchasers, the Agents
and the Administrative Agent hereunder and the termination of all Commitments
and (b) the Termination Date; provided, that the provisions of Sections 2.4,
2.5, 2.6, 6.1, 6.2, 7.7, 8.2, 9.10, 9.12 and 9.14 shall survive termination of
this Agreement and any amounts payable to the Administrative Agent, the Agents,
Class A-2 Purchasers or any Affected Party thereunder shall remain payable
thereto.
9.12 No Proceedings.
(a) The Administrative Agent and each Agent and each Class A-2
Purchaser covenants and agrees that it shall not institute against, or join any
other Person in instituting against, the Issuer or AFC any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings or other
similar proceeding under the laws of the United States or any state of the
United States for one year and a day after the latest maturing Note has been
paid.
(b) Each of AFC (individually and as Seller), AmeriCredit
(individually, as Seller and as Servicer), the Issuer, the Administrative Agent,
each Agent and each Class A-2
- 54 -
Purchaser hereby agrees that it shall not institute or join against, or
knowingly or intentionally encourage or cooperate with any other Person in
instituting against any CP Conduit any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceeding, or other proceeding under any federal or
state bankruptcy or similar law, for one year and a day after the latest
maturing commercial paper note, medium term note or other debt security issued
by such CP Conduit is paid.
9.13 No Recourse.
(a) The obligations of each CP Conduit under this Agreement, or any
other agreement, instrument, document or certificate executed or delivered or
issued by such CP Conduit or any officer thereof are solely the corporate,
limited liability company or partnership obligations of such CP Conduit. No
recourse shall be had for the payment of any fee or other obligations,
instrument, document or certificate executed and delivered or issued by any CP
Conduit or any officer thereof in connection therewith, against any stockholder,
limited partner, employee, officer, director or incorporator of any CP Conduit.
(b) Each of AFC (individually and as Seller), AmeriCredit
(individually, as Seller and as Servicer), the Issuer, the Administrative Agent,
each Agent and each Class A-2 Purchaser hereby irrevocably waives all right of
setoff that it may have under contract (including this Agreement), applicable
law or otherwise with respect to any funds or monies of any CP Conduit at any
time held by or in the possession of such Person.
(c) Notwithstanding anything in this Agreement to the contrary, a CP
Conduit shall not have any obligation to pay any amount required to be paid by
it hereunder in excess of any amount available to such CP Conduit after paying
or making provision for the payment of its Commercial Paper Notes; and each of
the other parties hereto agrees that it will not have a claim under Section
101(5) of the Bankruptcy Code if and to the extent that any such payment
obligation owed to it by such CP Conduit exceeds the amount available to such CP
Conduit to pay such amount after paying or making provision for the payment of
its Commercial Paper Notes.
9.14 Survival of Representations and Warranties. All representations
and warranties made hereunder and in any document, certificate or statement
delivered pursuant hereto or in connection herewith shall survive the execution
and delivery of this Agreement, the purchase of the Class A-2 Notes hereunder
and the termination of this Agreement.
9.15 Waiver of Jury Trial. EACH PARTY HERETO (INDIVIDUALLY AND, IN THE
CASE OF AFC, AS A SELLER, AND, IN THE CASE OF AMERICREDIT, AS A SELLER AND AS
SERVICER) HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ANY AND ALL
RIGHTS IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED ON, OR
ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS AGREEMENT, THE CLASS A-2
NOTES OR ANY OTHER DOCUMENTS AND INSTRUMENTS EXECUTED IN CONNECTION HEREWITH, OR
ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER ORAL OR WRITTEN),
OR ACTIONS OF ANY PARTY HERETO. THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE
PARTIES ENTERING INTO THIS AGREEMENT
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AND FOR CLASS A-2 PURCHASERS PURCHASING AN INTEREST IN THE CLASS A-2 NOTES
DESCRIBED HEREIN AND THE ADMINISTRATIVE AGENT AND EACH AGENT AGREEING TO ACT AS
SUCH HEREUNDER.
9.16 Limitation of Liability of Owner Trustee. It is expressly
understood and agreed by the parties hereto that (a) this Agreement is executed
and delivered by Deutsche Bank Trust Company Delaware, not individually or
personally but solely as Owner Trustee of the Issuer, in the exercise of the
powers and authority conferred and vested in it, (b) each of the
representations, undertakings and agreements herein made on the part of the
Issuer is made and intended not as personal representations, undertakings and
agreements by Deutsche Bank Trust Company Delaware but is made and intended for
the purpose for binding only the Issuer, (c) nothing herein contained shall be
construed as creating any liability on Deutsche Bank Trust Company 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 Deutsche Bank Trust Company Delaware
be personally liable for the payment of any indebtedness or expenses of the
Issuer or be liable for the breach or failure of any obligation, representation,
warranty or covenant made or undertaken by the Issuer under this Agreement or
any other related documents.
9.17 Amendment and Restatement of Indenture and Sale and Servicing
Agreement. Each Class A-2 Purchaser hereby expressly consents to: (i) the
amendment and restatement of the Indenture as provided in the Second Amended and
Restated Indenture, dated as of November 5, 2003, by and among the Issuer, the
Trustee and the Administrative Agent, and (ii) the amendment and restatement of
the Sale and Servicing Agreement, as provided in the Second Amended and Restated
Sale and Servicing Agreement, dated as of November 5, 2003, by and among the
Issuer, AFC, as a Seller, AmeriCredit, as a Seller and Servicer, and Bank One,
NA, in the forms previously distributed to such Class A-2 Purchaser.
9.18 CP Conduit as Committed Purchaser. Notwithstanding anything
herein to the contrary, a CP Conduit may execute this Agreement as both a CP
Conduit and a Committed Purchaser and, in such event, such CP Conduit shall have
the rights and obligations of both a CP Conduit and a Committed Purchaser set
forth herein. In no event shall the foregoing prevent a CP Conduit from
exercising its rights to Assign or Transfer some or all of its Class A-2 Note to
one or more Support Parties.
9.19 Effectiveness of Amendment and Restatement. The amendment and
restatement of this Agreement set forth herein shall become effective as of the
date hereof upon (a) receipt by the Administrative Agent of counterparts of this
Agreement (whether by facsimile or otherwise) executed by each of the other
parties hereto and by Noteholders representing the Required Class A-2 Owners and
Required Class A-2 Purchasers, (b) receipt by the Administrative Agent (for the
account of each Class A-2 Purchaser) of the extension and amendment fees due to
each Class A-2 Purchaser under their respective fee letter agreements, each
dated as of the date hereof, among such Class A-2 Purchaser, the Issuer and the
Administrative Agent and (c) satisfaction of the Rating Agency Condition.
[Remainder of page intentionally left blank.]
- 56 -
IN WITNESS WHEREOF, the parties hereto have caused this Class A-2 Note
Purchase Agreement to be duly executed by their respective officers as of the
day and year first above written.
AMERICREDIT MASTER TRUST
By: Deutsche Bank Trust Company
Delaware, not in its individual
capacity but solely as Owner Trustee
By:
-------------------------------------
Name:
Title:
AMERICREDIT FUNDING CORP, VII,
individually and as a Seller
By:
-------------------------------------
Name:
Title:
AMERICREDIT FINANCIAL SERVICES, INC.,
individually, as a Seller and as
Servicer
By:
-------------------------------------
Name:
Title:
DEUTSCHE BANK TRUST COMPANY AMERICAS,
as Administrative Agent
By:
-------------------------------------
Name:
Title:
By:
-------------------------------------
Name:
Title:
Address for Notices:
Mail Stop: NYC1701
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇▇▇ / ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
SEDONA PURCHASER GROUP
DEUTSCHE BANK AG, NEW YORK BRANCH,
as Agent
By:
-------------------------------------
Name:
Title:
By:
-------------------------------------
Name:
Title:
Address for Notices:
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Structured Finance
Department/Securitization
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Type of Class A-2 Purchaser: SEDONA CAPITAL FUNDING CORPORATION
CP Conduit
By:
-------------------------------------
Name:
Title:
Address for Notices and Investing
Office:
▇/▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇, ▇▇▇ ▇▇▇▇ Branch
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Structured Finance
Department/Securitization
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Type of Class A-2 Purchaser: DEUTSCHE BANK AG, NEW YORK BRANCH,
Committed
By:
-------------------------------------
Name:
Title:
By:
-------------------------------------
Name:
Title:
Address for Notices and Investing
Office:
Deutsche Bank AG
New York Branch
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Structured Finance
Department/Securitization
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
SCHEDULE I
----------
Schedule of Committed Purchasers and CP Conduits
------------------------------------------------
--------------------------------------------------------------------------------
Maximum
Name of Committed Purchase
Purchaser Commitment Name of CP Conduit Amount
--------------------------------------------------------------------------------
Fairway Finance $ 175,000,000 Fairway Finance $ 175,000,000
Company, LLC Company, LLC
Bank One, N.A. $ 66,203,983 Jupiter Securitization $ 66,203,983
Corporation
Sheffield Receivables $ 115,964,484 Sheffield Receivables $ 115,964,484
Corporation Corporation
Canadian Imperial $ 41,000,000 Special Purposes $ 41,000,000
Bank of Commerce Accounts Receivable
Cooperative
Corporation
Credit Suisse First $ 182,129,276 Alpine Securitization $ 182,129,276
Boston, New York Corporation
Branch
Gramercy Capital
Corporation
Greenwich Funding
Corporation
Deutsche Bank AG, $ 43,386,361 Sedona Capital Funding $ 43,386,361
New York Branch Corporation
JPMorgan Chase Bank $ 49,200,000 Park Avenue $ 49,200,000
Receivables
Corporation
Public Square Funding $ 47,001,891 Public Square Funding $ 47,001,891
LLC LLC
▇▇▇▇▇▇ Brothers $ 158,829,958 MMP-3 Funding, LLC $ 158,829,958
Holdings Inc.
Wachovia Bank, $ 83,695,071 Variable Funding $ 83,695,071
National Association Capital Corporation
Paradigm Funding LLC $ 57,848,481 Paradigm Funding LLC $ 57,848,481
USB Purchaser Group $ 148,208,208 USB Warburg Real 148,208,208
Estate Securities Inc.
--------------------------------------------------------------------------------
EXHIBIT A
---------
FORM OF INVESTMENT LETTER
-------------------------
[Date]
[Name and address of Issuer]
[Name and address of Transferee Class A-2 Purchaser]
Re AmeriCredit Master Trust
Floating Rate Asset Backed Notes, Class A-2
-------------------------------------------
Ladies and Gentlemen:
This letter (the "Investment Letter") is delivered by the undersigned
(the "Purchaser") pursuant to subsection 8.1(a) of the Second Amended and
Restated Class A-2 Note Purchase Agreement dated as of November 5, 2003 (as in
effect, the "Note Purchase Agreement"), among AFC, AmeriCredit Master Trust,
AmeriCredit Financial Services, Inc., the Class A-2 Purchasers and the Agents
parties thereto and Deutsche Bank Trust Company Americas, as Administrative
Agent. Capitalized terms used herein without definition shall have the meanings
set forth in the Note Purchase Agreement. The Purchaser represents to and agrees
with the Issuer as follows:
(a) The Purchaser is authorized [to enter into the Note Purchase
Agreement and to perform its obligations thereunder and to consummate the
transactions contemplated thereby] [to purchase a participation in
obligations under the Note Purchase Agreement].
(b) The Purchaser has such knowledge and experience in financial and
business matters as to be capable of evaluating the merits and risks of its
investment in the Class A-2 Notes and is able to bear the economic risk of
such investment. The Purchaser has been afforded the opportunity to ask
such questions as it deems necessary to make an investment decision, and
has received all information it has requested in connection with making
such investment decision. The Purchaser has, independently and without
reliance upon the Agent or any other Class A-2 Purchaser, and based on such
documents and information as it has deemed appropriate, made its own
appraisal of and investigation into the business, operations, property,
financial and other condition and creditworthiness of the Receivables, AFC,
the Sellers, AmeriCredit, the Servicer, the Issuer, the Backup Servicer,
the Trust Collateral Agent and the Trustee and made its own decision to
purchase its interest in the Class A-2 Notes, and will, independently and
without reliance upon the Administrative Agent, any Agent or any other
Class A-2 Purchaser, and based on such documents and information as it
shall deem appropriate at the time, continue to make its own analysis,
appraisals and decisions in taking or not taking action under the Note
Purchase Agreement, and to make such investigation as it
A-1
deems necessary to inform itself as to the business, operations, property,
financial and other condition and creditworthiness of the Receivables, AFC,
the Sellers, AmeriCredit, the Servicer, the Issuer, the Backup Servicer,
the Trust Collateral Agent and the Trustee.
(c) The Purchaser is an "accredited investor", as defined in Rule
501, promulgated by the Notes and Exchange Commission (the "Commission")
under the Securities Act of 1933, as amended (the "Securities Act"), or is
a sophisticated institutional investor. The Purchaser understands that the
offering and sale of the Class A-2 Notes has not been and will not be
registered under the Securities Act and has not and will not be registered
or qualified under any applicable "Blue Sky" law, and that the offering and
sale of the Class A-2 Notes has not been reviewed by, passed on or
submitted to any federal or state agency or commission, securities exchange
or other regulatory body.
(d) The Purchaser is acquiring an interest in Class A-2 Notes without
a view to any distribution, resale or other transfer thereof except, with
respect to any Class A-2 Note or any interest or participation therein, as
contemplated in the following sentence. The Purchaser will not resell or
otherwise transfer any interest or participation in the Class A-2 Note,
except in accordance with Section 8.1 of the Note Purchase Agreement and
(i) in a transaction exempt from the registration requirements of the
Securities Act of 1933, as amended, and applicable state securities or
"blue sky" laws; (ii) to the Issuer or any affiliate of the Issuer; or
(iii) to a person who the Purchaser reasonably believes is a qualified
institutional buyer (within the meaning thereof in Rule 144A under the
Securities Act) that is aware that the resale or other transfer is being
made in reliance upon Rule 144A. In connection therewith, the Purchaser
hereby agrees that it will not resell or otherwise transfer the Class A-2
Notes or any interest therein unless the purchaser thereof provides to the
addressee hereof a letter substantially in the form hereof.
(f) This Investment Letter has been duly executed and delivered and
constitutes the legal, valid and binding obligation of the Purchaser,
enforceable against the Purchaser in accordance with its terms, except as
such enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws or equitable principles
affecting the enforcement of creditors' rights generally and general
principles of equity.
Very truly yours,
[NAME OF PURCHASER]
By:
-------------------------------------
Name:
Title:
A-2
EXHIBIT B
---------
FORM OF TRANSFER SUPPLEMENT
---------------------------
TRANSFER SUPPLEMENT, dated as of the date set forth in Item 1 of
Schedule I hereto, among the Seller Class A-2 Purchaser set forth in Item 2 of
Schedule I hereto (the "Seller Class A-2 Purchaser"), the Purchasing Class A-2
Purchaser set forth in Item 3 of Schedule I hereto (the "Purchasing Class A-2
Purchaser"), and the Agent set forth in Item 4 of Schedule I hereto (in such
capacity, the "Agent") for the Purchaser Group set forth in Item 5 of Schedule I
hereto.
W I T N E S S E T H:
WHEREAS, this Supplement is being executed and delivered in accordance
with subsection 8.1(e) of the Second Amended and Restated Class A-2 Note
Purchase Agreement, dated as of November 5, 2003, among AmeriCredit Master
Trust, AmeriCredit Funding Corp. VII, AmeriCredit Financial Services, Inc. (the
"AmeriCredit Parties"), the Class A-2 Purchasers and the Agents parties thereto
and Deutsche Bank Trust Company Americas, as Administrative Agent (as from time
to time amended, supplemented or otherwise modified in accordance with the terms
thereof, the "Note Purchase Agreement"; unless otherwise defined herein, terms
defined in the Note Purchase Agreement are used herein as therein defined);
WHEREAS, the Purchasing Class A-2 Purchaser (if it is not already a
Class A-2 Purchaser party to the Note Purchase Agreement) wishes to become a
Class A-2 Purchaser party to the Note Purchase Agreement and the Purchasing
Class A-2 Purchaser wishes to acquire and assume from the Seller Class A-2
Purchaser, certain of the rights, obligations and commitments under the Note
Purchase Agreement; and
WHEREAS, the Seller Class A-2 Purchaser wishes to sell and assign to
the Purchasing Class A-2 Purchaser, certain of its rights, obligations and
commitments under the Note Purchase Agreement.
NOW, THEREFORE, the parties hereto hereby agree as follows:
(a) Upon receipt by the Agent of five counterparts of this
Supplement, to each of which is attached a fully completed Schedule I and
Schedule II, each of which has been executed by the Seller Class A-2 Purchaser,
the Purchasing Class A-2 Purchaser and the Agent, the Agent will promptly
transmit to the Servicer, the Sellers, the Trustee, the Seller Class A-2
Purchaser and the Purchasing Class A-2 Purchaser a Transfer Effective Notice,
substantially in the form of Schedule III to this Supplement (a "Transfer
Effective Notice"). Such Transfer Effective Notice shall be executed by the
Agent and shall set forth, inter alia, the date on which the transfer effected
by this Supplement shall become effective (the "Transfer Effective Date"). From
and after the Transfer Effective Date the Purchasing Class A-2 Purchaser shall
be a Class A-2 Purchaser party to the Note Purchase Agreement for all purposes
thereof as a CP Conduit and, if applicable, a Committed Purchaser, as specified
on Schedule II to this Supplement.
B-1
(b) At or before 12:00 Noon, local time of the Seller Class A-2
Purchaser, on the Transfer Effective Date, the Purchasing Class A-2 Purchaser
shall pay to the Seller Class A-2 Purchaser, in immediately available funds, an
amount equal to the purchase price, as agreed between the Seller Class A-2
Purchaser and such Purchasing Class A-2 Purchaser (the "Purchase Price"), of the
portion set forth on Schedule II hereto being purchased by such Purchasing Class
A-2 Purchaser of the outstanding Class A-2 Principal Balance under the Class A-2
Note owned by the Seller Class A-2 Purchaser (such Purchasing Class A-2
Purchaser's "Purchaser Percentage") and other amounts owing to the Seller Class
A-2 Purchaser under the Note Purchase Agreement or otherwise in respect of the
Class A-2 Notes.
Effective upon receipt by the Seller Class A-2 Purchaser of the
Purchase Price from the Purchasing Class A-2 Purchaser, the Seller Class A-2
Purchaser hereby irrevocably sells, assigns and transfers to the Purchasing
Class A-2 Purchaser, without recourse, representation or warranty, and the
Purchasing Class A-2 Purchaser hereby irrevocably purchases, takes and assumes
from the Seller Class A-2 Purchaser, the Purchasing Class A-2 Purchaser's
Purchaser Percentage of (i) the presently outstanding Class A-2 Principal
Balance under the Class A-2 Notes owned by the Seller Class A-2 Purchaser and
other amounts owing to the Seller Class A-2 Purchaser in respect of the Class
A-2 Notes, together with all instruments, documents and collateral security
pertaining thereto, and (ii) the Purchasing Class A-2 Purchaser's Purchaser
Percentage of (A) if the Seller Class A-2 Purchaser is a CP Conduit, the
Purchaser Percentage of the Seller Class A-2 Purchaser and the other rights and
duties of the Seller Class A-2 Purchaser under the Note Purchase Agreement, or
(B) if the Seller Class A-2 Purchaser is a Committed Purchaser, the Liquidity
Percentage and the Commitment of the Seller Class A-2 Purchaser and other
rights, duties and obligations of the Seller Class A-2 Purchaser under the Note
Purchase Agreement.
This Supplement is intended by the parties hereto to effect a purchase
by the Purchasing Class A-2 Purchaser and sale by the Seller Class A-2 Purchaser
of interests in the Class A-2 Notes, and it is not to be construed as a loan or
a commitment to make a loan by the Purchasing Class A-2 Purchaser to the Seller
Class A-2 Purchaser. The Seller Class A-2 Purchaser hereby confirms that the
amount of the Class A-2 Principal Balance is $_________ and its Percentage
Interest thereof is ___%, which equals $_________________ as of _________, 20__.
Upon and after the Transfer Effective Date (until further modified in accordance
with the Note Purchase Agreement), the Purchaser Percentage or Liquidity
Percentage, as applicable, of the Seller Class A-2 Purchaser and the Purchasing
Class A-2 Purchaser and the Commitment and the Liquidity Percentage, if
applicable, of the Seller Class A-2 Purchaser and the Purchasing Class A-2
Purchaser shall be as set forth in Schedule II to this Supplement.
(c) The Seller Class A-2 Purchaser has made arrangements with the
Purchasing Class A-2 Purchaser with respect to (i) the portion, if any, to be
paid, and the date or dates for payment, by the Seller Class A-2 Purchaser to
the Purchasing Class A-2 Purchaser of any fees heretofore received by the Seller
Class A-2 Purchaser pursuant to the Note Purchase Agreement prior to the
Transfer Effective Date and (ii) the portion, if any, to be paid, and the date
or dates for payment, by the Purchasing Class A-2 Purchaser to the Seller Class
A-2 Purchaser of fees or interest received by the Purchasing Class A-2 Purchaser
pursuant to the
B-2
Note Purchase Agreement or otherwise in respect of the Class A-2 Notes from and
after the Transfer Effective Date.
(d) (i) All principal payments that would otherwise be payable from
and after the Transfer Effective Date to or for the account of the Seller Class
A-2 Purchaser in respect of the Class A-2 Notes shall, instead, be payable to or
for the account of the Seller Class A-2 Purchaser and the Purchasing Class A-2
Purchaser, as the case may be, in accordance with their respective interests as
reflected in this Supplement.
(ii) All interest, fees and other amounts that would otherwise
accrue for the account of the Seller Class A-2 Purchaser from and after the
Transfer Effective Date pursuant to the Note Purchase Agreement or in respect of
the Class A-2 Notes shall, instead, accrue for the account of, and be payable to
or for the account of, the Seller Class A-2 Purchaser and the Purchasing Class
A-2 Purchaser, as the case may be, in accordance with their respective interests
as reflected in this Supplement. In the event that any amount of interest, fees
or other amounts accruing prior to the Transfer Effective Date was included in
the Purchase Price paid by the Purchasing Class A-2 Purchaser, the Seller Class
A-2 Purchaser and the Purchasing Class A-2 Purchaser will make appropriate
arrangements for payment by the Seller Class A-2 Purchaser to the Purchasing
Class A-2 Purchaser of such amount upon receipt thereof from the Agent.
(e) Concurrently with the execution and delivery hereof, the
Purchasing Class A-2 Purchaser will deliver to the Agent and the Issuer an
executed Investment Letter in the form of Exhibit A to the Note Purchase
Agreement and the forms, if any, required by subsection 2.5(c) of the Note
Purchase Agreement.
(f) Each of the parties to this Supplement agrees and acknowledges
that (i) at any time and from time to time upon the written request of any other
party, it will execute and deliver such further documents and do such further
acts and things as such other party may reasonably request in order to effect
the purposes of this Supplement, and (ii) the Agent shall apply each payment
made to it under the Note Purchase Agreement, whether in its individual capacity
or as Agent, in accordance with the provisions of the Note Purchase Agreement,
as appropriate.
(g) By executing and delivering this Supplement, the Seller Class A-2
Purchaser and the Purchasing Class A-2 Purchaser confirm to and agree with each
other, the Agent and the Class A-2 Purchasers as follows: (i) other than the
representation and warranty that it is the legal and beneficial owner of the
interest being assigned hereby free and clear of any adverse claim, the Seller
Class A-2 Purchaser makes no representation or warranty and assumes no
responsibility with respect to any statements, warranties or representations
made in or in connection with the Note Purchase Agreement or the Related
Documents or the execution, legality, validity, enforceability, genuineness,
sufficiency or value of the Note Purchase Agreement or any other instrument or
document furnished pursuant thereto; (ii) the Seller Class A-2 Purchaser makes
no representation or warranty and assumes no responsibility with respect to the
Issuer, the financial condition of the Receivables, AFC, the Sellers,
AmeriCredit, the Servicer, the Issuer, the Trust Collateral Agent, the Backup
Servicer or the Trustee or the performance or observance by AFC, either Seller,
AmeriCredit, the Servicer, the Issuer, the Trust Collateral Agent, the Backup
Servicer or the Trustee of any of their respective obligations under
B-3
the Note Purchase Agreement or any Related Document or any other instrument or
document furnished pursuant hereto; (iii) each Purchasing Class A-2 Purchaser
confirms that it has received a copy of such documents and information as it has
deemed appropriate to make its own credit analysis and decision to enter into
this Supplement; (iv) each Purchasing Class A-2 Purchaser will, independently
and without reliance upon the Administrative Agent, any Agent (as defined in the
Note Purchase Agreement) the Seller Class A-2 Purchaser or any other Class A-2
Purchaser and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking action under the Note Purchase Agreement or the Related Documents;
(v) the Purchasing Class A-2 Purchaser appoints and authorizes the Agent and the
Administrative Agent to take such action as agent on its behalf and to exercise
such powers under the Note Purchase Agreement and the Related Documents as are
delegated to the Agent or the Administrative Agent, as the case may be, by the
terms thereof, together with such powers as are reasonably incidental thereto,
all in accordance with Section 7 of the Note Purchase Agreement; and (vi) each
Purchasing Class A-2 Purchaser agrees (for the benefit of the Seller Class A-2
Purchaser, the Administrative Agent, the Agents (as defined in the Note Purchase
Agreement), the Class A-2 Purchasers, the Trustee, the Servicer and the Sellers)
that it will perform in accordance with their terms all of the obligations which
by the terms of the Note Purchase Agreement are required to be performed by it
as a Class A-2 Purchaser.
(h) Schedule II hereto sets forth the revised Purchaser Percentage or
the revised Liquidity Percentage, as applicable, and Commitment of the Seller
Class A-2 Purchaser, as applicable, the Purchaser Percentage or the Liquidity
Percentage, as applicable, and the Commitment of the Purchasing Class A-2
Purchaser, as applicable, and the initial Investing Office of the Purchasing
Class A-2 Purchaser, as well as administrative information with respect to the
Purchasing Class A-2 Purchaser.
(i) THIS SUPPLEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF NEW YORK.
IN WITNESS WHEREOF, the parties hereto have caused this Supplement to
be executed by their respective duly authorized officers on Schedule I hereto as
of the date set forth in Item 1 of Schedule I hereto.
B-4
SCHEDULE I TO
TRANSFER SUPPLEMENT
-------------------
COMPLETION OF INFORMATION AND
SIGNATURES FOR TRANSFER SUPPLEMENT
Re: Second Amended and Restated Class A-2 Note Purchase Agreement, dated
as of November 5, 2003, among AmeriCredit Master Trust, AmeriCredit
Funding Corp. VII, AmeriCredit Financial Services, Inc., the Class A-2
Purchasers and the Agents parties thereto and Deutsche Bank Trust
Company Americas, as Administrative Agent
Item 1: Date of Transfer Supplement:
Item 2: Seller Class A-2 Purchaser:
Item 3: Purchasing Class A-2 Purchaser:
Item 4: Name of Agent:
Item 5: Name of Purchaser Group:
Item 6: Signatures of Parties to Agreement:
----------------------------------------
as Seller Class A-2 Purchaser
By:
-------------------------------------
Name:
Title:
By:
-------------------------------------
Name:
Title:
B-5
as Purchasing Class A-2 Purchaser
By:
-------------------------------------
Name:
Title:
By:
-------------------------------------
Name:
Title:
CONSENTED TO AND ACCEPTED BY:
[NAME OF AGENT], as Agent
By:
-----------------------------------
Name:
Title:
By:
-----------------------------------
Name:
Title:
[If applicable:]
DEUTSCHE BANK TRUST COMPANY AMERICAS,
as Administrative Agent
By:
-----------------------------------
Name:
Title:
By:
-----------------------------------
Name:
Title:
B-6
SCHEDULE II TO
TRANSFER SUPPLEMENT
-------------------
LIST OF INVESTING OFFICES, ADDRESSES
FOR NOTICES, ASSIGNED INTERESTS AND
PURCHASE AND LIQUIDITY PERCENTAGES
----------------------------------
[Seller Class A-2 Purchaser]
A. Type of Purchaser: CP Conduit: Yes/No
Committed Purchaser: Yes/No
B. Purchaser Percentage:
Seller Class A-2 Purchaser Purchaser Percentage
Prior to Sale: _____%
Purchaser Percentage Sold: _____%
Purchaser Percentage Retained: _____%
C. Commitment (if applicable)
Seller Class A-2 Purchaser Commitment
Prior to Sale: $________
Commitment Sold: $________
Commitment Retained: $________
Related CP Conduit (applicable to Committed Purchaser): ____________
D. Related Committed Purchasers (applicable to CP Conduit)
Committed Purchasers, Commitments and Liquidity Percentages prior to Sale:
_________________________ $____________ _____%
_________________________ $____________ _____%
_________________________ $____________ _____%
E. Class A-2 Principal Balance:
Seller Class A-2 Purchaser
Class A-2 Principal Balance Prior to Sale: $________
Class A-2 Principal Balance Sold: $________
B-7
Class A-2 Principal Balance Retained: $________
[Purchasing Class A-2 Purchaser]
------------------------------
A. Type of Purchaser: CP Conduit: Yes/No
Committed Purchaser: Yes/No
B. Purchaser Percentage:
Transferee Class A-2 Purchaser Purchaser Percentage
After Sale: _____%
C. Commitment (if applicable)
Transferee Class A-2 Purchaser Commitment
After Sale: $________
Related CP Conduit (applicable to Committed Purchaser): _____________
D. Related Committed Purchasers (applicable to CP Conduit)
Committed Purchasers, Commitments and Liquidity Percentages after Sale:
_________________________ $____________ _____%
_________________________ $____________ _____%
_________________________ $____________ _____%
E. Class A-2 Principal Balance:
Transferee Class A-2 Purchaser
Class A-2 Principal Balance After Sale: $________
Address for Notices:
-------------------
Investing Office:
----------------
B-8
SCHEDULE III TO
TRANSFER SUPPLEMENT
-------------------
Form of
Transfer Effective Notice
-------------------------
To: [Name and address of Sellers,
Servicer, Trustee, Administrative
Agent, Seller Class A-2 Purchaser and
Purchasing Class A-2 Purchaser]
The undersigned, as Agent under the Second Amended and Restated Class
A-2 Note Purchase Agreement, dated as of November 5, 2003, among AmeriCredit
Master Trust, AmeriCredit Funding Corp. VII, AmeriCredit Financial Services,
Inc., the Class A-2 Purchasers and the Agents parties thereto and Deutsche Bank
Trust Company Americas, as Administrative Agent, acknowledges receipt of five
executed counterparts of a completed Transfer Supplement. [Note: attach copies
of Schedules I and II from such Agreement.] Terms defined in such Supplement are
used herein as therein defined.
Pursuant to such Supplement, you are advised that the Transfer
Effective Date will be _____________, ____.
Very truly yours,
[NAME OF AGENT], as Agent
By:
-------------------------------------
Name:
Title:
By:
-------------------------------------
Name:
Title:
B-9
EXHIBIT C
---------
JOINDER SUPPLEMENT
------------------
JOINDER SUPPLEMENT, dated as of the date set forth in Item 1 of Schedule I
hereto, among the financial institution identified in Item 2 of Schedule I
hereto, AmeriCredit Financial Services, Inc. ("AmeriCredit"), individually, as a
Seller and as Servicer, AmeriCredit Funding Corp. VII("AFC"), individually and
as a Seller, AmeriCredit Master Trust (the "Issuer"), the Agent named in Item 5
of Schedule I hereto (the "Agent"), and Deutsche Bank Trust Company Americas, as
Administrative Agent (the "Administrative Agent").
W I T N E S S E T H:
WHEREAS, this Supplement is being executed and delivered under the Second
Amended and Restated Class A-2 Note Purchase Agreement, dated as of November 5,
2003, among AmeriCredit, AFC, the Issuer, the Class A-2 Purchasers from time to
time parties thereto, the Agents for the Purchaser Groups from time to time
parties thereto, and the Administrative Agent (as from time to time amended,
supplemented or otherwise modified in accordance with the terms thereof, the
"Agreement"; unless otherwise defined herein, terms defined in the Agreement are
used herein as therein defined); and
WHEREAS, the party set forth in Item 2 of Schedule I hereto (the "Proposed
Purchaser") wishes to become a Class A-2 Purchaser designated as a [CP
Conduit][Committed Purchaser] party to the Agreement;
NOW, THEREFORE, the parties hereto hereby agree as follows:
(a) Upon receipt by the Administrative Agent of five counterparts of this
Supplement, to each of which is attached a fully completed Schedule I and
Schedule II, each of which has been executed by the Proposed Purchaser,
AmeriCredit, AFC, the Issuer, the Agent and the Administrative Agent, the
Administrative Agent will transmit to the Proposed Purchaser, AmeriCredit, AFC,
the Issuer and the Agent, a Joinder Effective Notice, substantially in the form
of Schedule III to this Supplement (a "Joinder Effective Notice"). Such Joinder
Effective Notice shall be executed by the Administrative Agent and shall set
forth, inter alia, the date on which the joinder effected by this Supplement
shall become effective (the "Joinder Effective Date"). From and after the
Joinder Effective Date, the Proposed Purchaser shall be a Class A-2 Purchaser
designated as a [CP Conduit][Committed Purchaser] party to the Agreement for all
purposes thereof.
(b) Each of the parties to this Supplement agrees and acknowledges that at
any time and from time to time upon the written request of any other party, it
will execute and deliver such further documents and do such further acts and
things as such other party may reasonably request in order to effect the
purposes of this Supplement.
(c) By executing and delivering this Supplement, the Proposed Purchaser
confirms to and agrees with the Administrative Agent, the Agents and the Class
A-2 Purchasers as follows: (i) none of the Administrative Agent, the Agents or
the Class A-2 Purchasers makes any representation or warranty or assumes any
responsibility with respect to any statements,
C-1
warranties or representations made in or in connection with the Agreement or the
execution, legality, validity, enforceability, genuineness, sufficiency or value
of the Agreement or any other instrument or document furnished pursuant thereto,
or with respect to any notes issued under the Indenture (including, without
limitation, the Class A-2 Notes), or the Trust Estate (as defined under the
Indenture) or the financial condition of AmeriCredit, AFC, any Seller, the
Servicer, the Trustee, the Trust Collateral Agent, the Backup Servicer or the
Issuer, or the performance or observance by AmeriCredit, AFC, any Seller, the
Servicer, the Trustee, the Trust Collateral Agent, the Backup Servicer or the
Issuer of any of their respective obligations under the Agreement, any other
Related Document or any other instrument or document furnished pursuant thereto;
(ii) the Proposed Purchaser confirms that it has received a copy of such
documents and information as it has deemed appropriate to make its own credit
analysis and decision to enter into this Supplement; (iii) the Proposed
Purchaser will, independently and without reliance upon the Administrative
Agent, any Agent or any other Class A-2 Purchaser and based on such documents
and information as it shall deem appropriate at the time, continue to make its
own credit decisions in taking or not taking action under the Agreement; (iv)
the Proposed Purchaser appoints and authorizes the Agent to take such action as
agent on its behalf and to exercise such powers under the Agreement as are
delegated to the Agent by the terms thereof, together with such powers as are
reasonably incidental thereto, all in accordance with Article 7 of the
Agreement; (v) the Proposed Purchaser appoints and authorizes the Administrative
Agent to take such action as agent on its behalf and to exercise such powers
under the Agreement as are delegated to the Administrative Agent by the terms
thereof, together with such powers as are reasonably incidental thereto, all in
accordance with the Indenture and Article 7 of the Agreement; and (vi) the
Proposed Purchaser agrees (for the benefit of the parties hereto and the other
Class A-2 Purchasers) that it will perform in accordance with their terms all of
the obligations which by the terms of the Agreement are required to be performed
by it as a Class A-2 Purchaser designated as a [CP Conduit][Committed
Purchaser].
(d) Schedule II hereto sets forth administrative information with respect
to the Proposed Purchaser.
(e) This Supplement shall be governed by, and construed in accordance
with, the laws of the State of New York.
IN WITNESS WHEREOF, the parties hereto have caused this Supplement to be
executed by their respective duly authorized officers on Schedule I hereto as of
the date set forth in Item 1 of Schedule I hereto.
C-2
SCHEDULE I TO
JOINDER SUPPLEMENT
------------------
COMPLETION OF INFORMATION AND
SIGNATURES FOR JOINDER SUPPLEMENT
Re: Second Amended and Restated Class A-2 Note Purchase Agreement, dated
as of November 5, 2003, among AmeriCredit Master Trust, AmeriCredit
Funding Corp. VII, AmeriCredit Financial Services, Inc., the other
parties thereto and Deutsche Bank Trust Company Americas, as
Administrative Agent.
Item 1: Date of Joinder Supplement: ______________
Item 2: Proposed Purchaser: _________________________________
Item 3: Type of Class A-2 Purchaser: _____ CP Conduit
_____ Committed
Item 4: Complete if Committed Purchaser: Commitment - $______________
Committed Purchaser with respect to:
------------------------------------
[Name of CP Conduit]
Item 5: Name of Agent: __________________
Item 6: Name of Purchaser Group: ______________________
Item 7: Signatures of Parties to Agreement:
______________________________, as
Proposed Purchaser
By:
-------------------------------------
Name:
Title:
By:
-------------------------------------
Name:
Title:
C-3
AMERICREDIT FINANCIAL SERVICES, INC.,
individually, as Seller and as Servicer
By:
-------------------------------------
Name:
Title:
AMERICREDIT FUNDING CORP. VII,
individually and as a Seller
By:
-------------------------------------
Name:
Title:
AMERICREDIT MASTER TRUST,
By: AmeriCredit Financial Services,
Inc., attorney-in-fact
By:
-------------------------------------
Name:
Title:
DEUTSCHE BANK TRUST COMPANY AMERICAS,
as Administrative Agent
By:
-------------------------------------
Name:
Title:
By:
-------------------------------------
Name:
Title:
[NAME OF AGENT], as Agent
By:
-------------------------------------
Name:
Title:
C-4
SCHEDULE II TO
JOINDER SUPPLEMENT
------------------
LIST OF INVESTING OFFICES, ADDRESS
FOR NOTICES AND WIRE INSTRUCTIONS
----------------------------------
Address for Notices: ________________________
------------------- ________________________
________________________
Investing Office: ________________________
----------------
Wire Instructions: ________________________
-----------------
C-5
SCHEDULE III TO
JOINDER SUPPLEMENT
------------------
FORM OF
JOINDER EFFECTIVE NOTICE
------------------------
To: [Name and address of AmeriCredit, AFC, the Issuer, Agent and Proposed
Purchaser]
The undersigned, as Administrative Agent under the Second Amended and
Restated Class A-2 Note Purchase Agreement, dated as of November 5, 2003, among
AmeriCredit Master Trust, AmeriCredit Funding Corp. VII, AmeriCredit Financial
Services, Inc., the other parties thereto and Deutsche Bank Trust Company
Americas, as Administrative Agent, acknowledges receipt of five executed
counterparts of a completed Joinder Supplement. [Note: attach copies of
Schedules I and II from such Agreement.] Terms defined in such Supplement are
used herein as therein defined.
Pursuant to such Supplement, you are advised that the Joinder Effective
Date for [Name of Proposed Purchaser] will be _____________ and such Proposed
Purchaser will be a Class A-2 Purchaser designated as a [CP Conduit][Committed
Purchaser with a Commitment of $__________].
Very truly yours,
DEUTSCHE BANK TRUST COMPANY AMERICAS,
as Administrative Agent
By:
-------------------------------------
Name:
Title:
By:
-------------------------------------
Name:
Title:
C-6
EXHIBIT D
FORM OF BORROWING NOTICE
[date]
To: Deutsche Bank Trust Company Americas,
as Administrative Agent
Mail Stop: NYC1701
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇▇▇ / ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Bank One, NA, as Trustee
1111 Polaris Parkway Suite 1K
Mail Code OH1-0181
▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Re: Borrowing under Second Amended and Restated Indenture, dated as of
November 5, 2003 (as amended, the "Indenture"; terms used herein but
not defined herein shall have the respective meanings given thereto in
the Indenture) among AmeriCredit Master Trust, a Delaware statutory
trust (the "Issuer"), Bank One, NA, a national banking association, as
Trustee and Trust Collateral Agent, and Deutsche Bank Trust Company
Americas, as Administrative Agent (the "Administrative Agent")
Ladies and Gentlemen:
The Issuer hereby requests a Borrowing pursuant to Section 12.6(a) of
the Indenture and the following agreements:
(a) Second Amended and Restated Class A-1 Note Purchase Agreement,
dated as of November 5, 2003, as amended, among the Issuer, AmeriCredit
Financial Services, Inc., AmeriCredit Funding Corp. VII, the Class A-1
Purchasers parties thereto, the Agents parties thereto, and the
Administrative Agent;
(b) Second Amended and Restated Class A-2 Note Purchase Agreement,
dated as of November 5, 2003, as amended, among the Issuer, AmeriCredit
Financial Services, Inc., AmeriCredit Funding Corp. VII, the Class A-2
Purchasers parties thereto, the Agents parties thereto, and the
Administrative Agent;
(c) Second Amended and Restated Class B Note Purchase Agreement,
dated as of November 5, 2003, as amended, among the Issuer, AmeriCredit
Financial Services, Inc., AmeriCredit Funding Corp. VII, the Class B
Purchasers parties thereto, the Agents parties thereto, and the
Administrative Agent;
(d) Second Amended and Restated Class C Note Purchase Agreement,
dated as of November 5, 2003, as amended, among the Issuer, AmeriCredit
Financial Services, Inc., AmeriCredit Funding Corp. VII, the Class C Purchasers
parties thereto, the Agents parties
D-1
thereto, and the Administrative Agent.
1. The Borrowing Date for the advance requested hereby (the "Subject
Advance") is ________________, which is a Business Day permitted as a Borrowing
Date pursuant to Section 2.1(c) of each Note Purchase Agreement. The requested
Fixed Period for the Subject Advance is _________.
2. The Additional Class A Principal Amount requested hereby is
$__________________, the Additional Class B Principal Amount requested hereby is
$__________________, and the Additional Class C Principal Amount requested
hereby is $__________________.
3. The proceeds of the Subject Advance should be deposited into the
following account located in the United States of America:
[Provide name and number of account, and name, address and ABA number
for depository institution as well as a contact person].
4. The undersigned hereby certifies and represents that each of the
applicable conditions set forth in Section 3.2 of each Note Purchase Agreement
and Section 12.6 of the Indenture to the making of the Subject Advance have been
satisfied.
5. Attached hereto as Exhibits A and B are a Borrowing Base
Confirmation and a Schedule of Receivables (as such terms are defined and/or
used in the Indenture), respectively, each complying with the requirements of
the Indenture. [IF THE ISSUER IS PURCHASING ADDITIONAL RECEIVABLES: Also
attached as Exhibit C is the Collateral Receipt required under Section 3.2 of
the Note Purchase Agreement. ]
Very truly yours,
AMERICREDIT MASTER TRUST
By: AmeriCredit Financial Services,
Inc.,
attorney-in-fact
By:
-------------------------------------
Name:
Title:
D-2
EXHIBIT E
FORM OF NOTICE OF FIXED PERIOD
[date]
To: Deutsche Bank Trust Company Americas,
as Administrative Agent
Mail Stop: NYC1701
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇▇▇ / ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
[addresses of other Agents]
Re: Borrowing under Second Amended and Restated Indenture, dated as of
November 5, 2003 (as amended, the "Indenture"; terms used herein but
not defined herein shall have the respective meanings given thereto in
the Indenture) among AmeriCredit Master Trust, a Delaware statutory
trust (the "Issuer"), Bank One, NA, a national banking association, as
Trustee and Trust Collateral Agent, and Deutsche Bank Trust Company
Americas, as Administrative Agent (the "Administrative Agent")
Ladies and Gentlemen:
Reference is made to the Borrowing, the Fixed Period of which ends on
_____, 200_, and the Additional Class A Principal Amount of which is
$__________________, the Additional Class B Principal Amount of which is
$__________________, and the Additional Class C Principal Amount of which is
$__________________. Pursuant to each of the following agreements:
(a) Second Amended and Restated Class A-1 Note Purchase Agreement,
dated as of November 5, 2003, as amended, among the Issuer, AmeriCredit
Financial Services, Inc., AmeriCredit Funding Corp. VII, the Class A-1
Purchasers parties thereto, the Agents parties thereto, and the
Administrative Agent;
(b) Second Amended and Restated Class A-2 Note Purchase Agreement,
dated as of November 5, 2003, as amended, among the Issuer, AmeriCredit
Financial Services, Inc., AmeriCredit Funding Corp. VII, the Class A-2
Purchasers parties thereto, the Agents parties thereto, and the
Administrative Agent;
(c) Second Amended and Restated Class B Note Purchase Agreement, dated
as of November 5, 2003, as amended, among the Issuer, AmeriCredit Financial
Services, Inc., AmeriCredit Funding Corp. VII, the Class B Purchasers
parties thereto, the Agents parties thereto, and the Administrative Agent;
(d) Second Amended and Restated Class C Note Purchase Agreement, dated
as of November 5, 2003, as amended, among the Issuer, AmeriCredit Financial
Services, Inc., AmeriCredit Funding Corp. VII, the Class C Purchasers
parties thereto, the Agents parties thereto, and the Administrative Agent;
E-1
the Issuer hereby notifies you that the subsequent Fixed Period for such
Borrowing shall be _____.
Very truly yours,
AMERICREDIT MASTER TRUST
By: AmeriCredit Financial Services,
Inc.,
attorney-in-fact
By:
-------------------------------------
Name:
Title:
E-2
Table of Contents
-----------------
Page
----
ARTICLE 1 DEFINITIONS.........................................................2
1.1 Definitions.........................................................2
1.2 Other Definitional Provisions......................................13
ARTICLE 2 AMOUNT AND TERMS OF COMMITMENTS....................................13
2.1 Purchases..........................................................13
2.2 Reductions and Extensions of Commitments...........................16
2.3 Interest, Fees, Expenses, Payments, Etc............................17
2.4 Requirements of Law................................................22
2.5 Taxes..............................................................24
2.6 Indemnification....................................................27
2.7 Expenses, etc......................................................30
2.8 Effect of Event of Default.........................................30
ARTICLE 3 CONDITIONS PRECEDENT...............................................31
3.1 Conditions to Initial Purchase.....................................31
3.2 Condition to Purchases.............................................33
ARTICLE 4 REPRESENTATIONS AND WARRANTIES.....................................35
4.1 Representations and Warranties of AmeriCredit,
AFC and the Issuer................................................35
ARTICLE 5 COVENANTS..........................................................39
5.1 Covenants..........................................................39
ARTICLE 6 MUTUAL COVENANTS REGARDING CONFIDENTIALITY.........................40
6.1 Covenants..........................................................40
6.2 Covenants of Class A-2 Purchasers..................................41
ARTICLE 7 THE AGENTS.........................................................42
7.1 Appointment........................................................42
7.2 Delegation of Duties...............................................42
7.3 Exculpatory Provisions.............................................42
7.4 Reliance by Agents.................................................43
7.5 Notices............................................................43
7.6 Non-Reliance on Agents and Other Class A-2 Purchasers..............43
7.7 Indemnification....................................................44
7.8 Agents in their Individual Capacity................................44
7.9 Successor Agents...................................................45
ARTICLE 8 SECURITIES LAWS; TRANSFERS.........................................45
8.1 Transfers of Class A-2 Notes.......................................45
8.2 Tax Characterization...............................................51
Table of Contents
-----------------
(continued)
Page
----
ARTICLE 9 MISCELLANEOUS......................................................51
9.1 Amendments and Waivers.............................................51
9.2 Notices............................................................51
9.3 No Waiver; Cumulative Remedies.....................................52
9.4 Successors and Assigns.............................................52
9.5 Successors to Servicer.............................................53
9.6 Counterparts.......................................................53
9.7 Severability.......................................................53
9.8 Integration........................................................53
9.9 Governing Law......................................................54
9.10 Jurisdiction; Consent to Service of Process........................54
9.11 Termination........................................................54
9.12 No Proceedings.....................................................54
9.13 No Recourse........................................................55
9.14 Survival of Representations and Warranties.........................55
9.15 Waiver of Jury Trial...............................................55
9.16 Limitation of Liability of Owner Trustee...........................56
9.17 Amendment and Restatement of Indenture and Sale and
Servicing Agreement...............................................56
9.18 CP Conduit as Committed Purchaser..................................56
9.19 Effectiveness of Amendment and Restatement.........................56
SCHEDULES
Schedule I: Schedule of Committed Purchasers and CP Conduits
LIST OF EXHIBITS
Exhibit A Form of Investment Letter
Exhibit B Form of Transfer Supplement
Exhibit C Form of Joinder Supplement
Exhibit D Form of Borrowing Notice
Exhibit E Form of Notice of Fixed Period
(ii)