EXHIBIT 10.29
EXECUTION COPY
================================================================================
AMENDED AND RESTATED
CLASS A-1 NOTE PURCHASE AGREEMENT
Dated as of February 22, 2002
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-1 PURCHASERS PARTIES HERETO,
BANKERS TRUST COMPANY
Administrative Agent
DEUTSCHE BANK AG, NEW YORK BRANCH,
as an Agent,
and
THE OTHER AGENTS PARTIES HERETO
----------
Relating to
AmeriCredit Master Trust
Floating Rate Asset Backed Notes, Class A-1
----------
================================================================================
AMENDED AND RESTATED CLASS A-1 NOTE PURCHASE AGREEMENT, dated as
of February 22, 2002, by and among AMERICREDIT MASTER TRUST, a Delaware business
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-1 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, BANKERS
TRUST COMPANY, as administrative agent (together with its successors in such
capacity, the "Administrative Agent").
W I T N E S S E T H :
WHEREAS, the Issuer, AFC, as a Seller, AmeriCredit, as a Seller
and Servicer, certain Class A-1 Purchasers, certain Agents, and DBNY, as an
Agent and as the initial Administrative Agent, are parties to a certain Class
A-1 Note Purchase Agreement dated as of December 13, 2001;
WHEREAS, the parties hereto desire to amend and restate the
Class A-1 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
Amended and Restated Sale and Servicing Agreement, dated as of February 22, 2002
(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 Amended and Restated Indenture,
dated as of February 22, 2002 (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-1 Purchasers are willing to purchase the
Class A-1 Notes in the amount of the Class A-1 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-1 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
Class A-1 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-1 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:
Adjusted Eurodollar Rate = LIBOR 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.
- 2 -
"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-1 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.
- 3 -
"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-1 Principal Amount.
"Class A-1 Average Principal Balance" shall mean, with respect
to any period, the sum of the Class A-1 Principal Balances for each of the days
during such period, divided by the number of days in such period.
"Class A-1 Commitment Fee" has the meaning specified in
subsection 2.3(c) of this Agreement.
"Class A-1 Commitment Fee Rate" shall mean the applicable rate
identified as the "Class A-1 Commitment 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-1
Purchasers.
"Class A-1 Facility Limit" shall mean, for any day, the lesser
of the Class A Borrowing Base and the Total Commitment on such day.
"Class A-1 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-1 Purchasers upon the occurrence of such Partial Expiration Event, times the
Class A-1 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-1 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-1 Principal Balance occurring through and
including such date.
"Class A-1 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-1 Monthly Interest and Fees and
the Class A-1 Principal Balance.
"Class A-1 Monthly Interest and Fees" shall mean, for any
Interest Period, the sum of (i) interest on the Class A-1 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-1 Usage Fee with respect to such Interest Period,
plus (iv) the Class A-1 Commitment Fee with respect to such Interest Period.
"Class A-1 Owners" shall mean the Class A-1 Purchasers that are
owners of record of the Class A-1 Notes or, with respect to any Class A-1 Note
held by an Agent hereunder as nominee on behalf of Class A-1 Purchasers in a
Purchaser Group, the Class A-1 Purchasers
- 4 -
that are beneficial owners of such Class A-1 Note as reflected on the books of
such Agent in accordance with this Agreement and the Related Documents.
"Class A-1 Principal Balance" shall mean, with respect to any
date, an amount equal to the excess of (a) the sum of (i) the Class A-1 Initial
Principal Balance, plus (ii) the aggregate principal amounts of any Additional
Class A-1 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-1 Owners pursuant to the Sale and Servicing Agreement and the Indenture
through and including such date.
"Class A-1 Purchasers" shall mean, collectively, the CP Conduits
and the Committed Purchasers.
"Class A-1 Notes" has the meaning specified in the recitals to
this Agreement.
"Class A-1 Usage Fee" has the meaning specified in subsection
2.3(c) of this Agreement.
"Class A-1 Usage Fee Rate" shall mean the applicable rate or
rates identified as the "Class A-1 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-1
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-1 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-1 Purchaser's commitment to purchase a portion of
the Class A-1 Principal Balance, as set forth on the signature pages 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-1 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-1 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-1 Purchaser shall be deemed
to have issued separate Commitments hereunder in each such capacity.
- 5 -
"Commitment Termination Date" shall mean, with respect to a
Committed Purchaser, March 6, 2003, as such date may be extended by such
Committed Purchaser from time to time in accordance with subsection 2.2(c)
hereof.
"Committed Purchaser" shall mean, with respect to a CP Conduit,
each Class A-1 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-1 Purchaser to the extent such Assignee has assumed,
pursuant to a Transfer Supplement, the Commitment of such Class A-1 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-1 Notes hereunder by borrowing from a
specified financing conduit.
"CP Conduit" shall mean any Class A-1 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-1
Purchaser, "CP Conduit" shall mean, collectively, such Conduit Borrower and such
specified financing conduit.
"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.
"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
- 6 -
(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-1 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
(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.
- 7 -
"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-1 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-1 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-1 Purchaser
or Assignee.
"Joinder Supplement" means an agreement among one or more Class
A-1 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 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.
- 8 -
"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-1 Owners" shall mean, at any time, Class A-1
Owners having more than 51% of the aggregate Percentage Interests of all Class
A-1 Owners.
"Majority Class A-1 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.
"Nonextending Class A-1 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-1 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-1 Principal Balance owing to such Class A-1
Purchaser (or, if no amount of the Class A-1 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-1
Principal Balance (or, if no amount of the Class A-1 Principal Balance is
outstanding, the Total Commitment) at such time.
"Permitted Transferee" shall mean (i) each Class A-1 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-1 Purchaser, any commercial paper 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
- 9 -
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-1
Purchaser, the earliest to occur of (i) the Commitment Termination Date for such
Purchaser or, with respect to a Class A-1 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-1 Purchasers
consisting of (i) a CP Conduit, and (ii) the Committed Purchasers with respect
to such CP Conduit. The initial Class A-1 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-1 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-1 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-1 Purchaser, Participant or Support Party of any court or other
judicial authority or any Governmental Authority charged with the
interpretation or administration of any law referred to in clause (i) or
of any fiscal, monetary or other Governmental Authority or central bank
having jurisdiction over such Class A-1 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).
- 10 -
"Required Class A-1 Owners" shall mean, at any time, Class A-1
Owners having more than 66-2/3% of the aggregate Percentage Interests of all
Class A-1 Owners.
"Required Class A-1 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-1 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-1 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-1 Notes or by swap agreement) under a
Support Facility. Each Committed Purchaser for a 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-1 Purchasers has occurred.
- 11 -
"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-1 Owners
and Required Class A-1 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-1 Owners or Required Class A-1 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-1 Owners or Required
Class A-1 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.
"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.
- 12 -
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-1 Initial Principal
Balance for a purchase price equal to the portion the Class A-1 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-1 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-1 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-1 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 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-1 Principal
Balance for purposes of this Agreement.
- 13 -
(c) Each purchase of any Additional Class A-1 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-1 Principal
Amount which is requested from the Class A-1 Purchasers on such Borrowing Date
and the desired duration of the Fixed Period for such Additional Class A-1
Principal Amount, (iii) specify an account in the United States to which payment
for the purchase price of such Additional Class A-1 Principal Amount is to be
made, and (iv) certify that the applicable conditions to the purchase of such
Additional Class A-1 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-2 Purchase Agreement, the 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-1 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-1 Initial Principal Balance or the
Additional Class A-1 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-1
Initial Principal Balance or the Additional Class A-1 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
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-1 Notes on the applicable Purchase Date in an amount equal to its
Liquidity Percentage of the portion of the Class A-1 Initial Principal Balance
or the Additional Class A-1 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-1 Initial Principal Balance or the Additional Class A-1 Principal
Amount, as applicable, so purchased.
(e) Each Class A-1 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
- 14 -
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-1
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-1
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.
(g) In no event shall a Committed Purchaser be required on
any date to purchase an Additional Class A-1 Principal Amount or a participation
in Swingline Borrowings which would result in its Percentage Interest of the
Class A-1 Principal Balance, determined after giving effect to such purchase,
exceeding its Commitment. In no event may any Additional Class A-1 Principal
Amount be offered for purchase hereunder or under Section 12.6(a) of the
Indenture, nor shall any Class A-1 Purchaser be obligated to purchase any
Additional Class A-1 Principal Amount, to the extent that, after giving effect
to such Additional Class A-1 Principal Amount, the Class A-1 Principal Balance
would exceed the Class A-1 Facility Limit.
- 15 -
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, ▇▇▇▇▇'▇ 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-1 Purchaser shall be automatically
reduced to zero.
(c) So long as no Termination Event has occurred and is
continuing, no more than 60 and no less than 30 days prior to the applicable
Commitment Termination Date, the Issuer may request, through the Administrative
Agent, that each Class A-1 Purchaser consent to an extension of the Commitment
Termination Date for a 364-day period as herein provided, which decision will be
made by each Class A-1 Purchaser in its sole discretion. Upon receipt of any
such request, the Administrative Agent shall promptly notify each Agent thereof,
which shall notify each Class A-1 Purchaser in its Purchaser Group thereof. Not
more than 30 days following the date of a request for an extension (such 30-day
period, the "Election Period"), each Class A-1 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-1 Purchaser not later than the Business Day following the last day of the
Election Period. Any Class A-1 Purchaser which notifies the applicable Agent of
its refusal to consent to the extension or which does not expressly notify such
Agent that it is willing to consent to an extension of the Commitment
Termination Date during the applicable Election Period shall be deemed to be a
(x) Nonextending Class A-1 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-1 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-1 Purchaser then in effect shall be extended to the date which is
364 days following the first day of the Election Period or, if such day is not a
Business Day, the next preceding Business Day.
- 16 -
(d) Within two Business Days following the end of an
Election Period, the Agent for each Purchaser Group shall notify each other
Class A-1 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-1 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-1 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-1 Mandatory Partial Amortization Amount.
2.3 Interest, Fees, Expenses, Payments, Etc.
(a) Interest shall accrue on the Class A-1 Principal Balance
during each Interest Period at the following rates:
(i) Each CP Conduit's Percentage Interest of the
Class A-1 Principal Balance shall bear interest on each day during each
Interest Period at a rate per annum 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-1
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
- 17 -
Interest of the Class A-1 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-1 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-1 Purchasers shall be entitled to be paid,
as a part of Class A-1 Monthly Interest and Fees payable on each Distribution
Date, (i) a fee (the "Class A-1 Usage Fee") in the aggregate amount equal to the
Class A-1 Average Principal Balance for the immediately preceding Interest
Period times a rate per annum equal to the Class A-1 Usage Fee Rate, plus (ii) a
fee (the "Class A-1 Commitment Fee") in the aggregate amount equal to (A) the
Total Commitment times (B) a rate per annum equal to the Class A-1 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-1 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-1 Monthly Interest and Fees
in respect of the Class A-1 Notes shall be paid as provided in the Sale and
Servicing Agreement and the Indenture. In the case of Class A-1 Notes held by an
Agent as agent for members of its Purchaser Group, such Agent shall allocate to
the Class A-1 Owners in its Purchaser Group each payment in respect of the Class
A-1 Notes received by such Agent in its capacity as Class A-1 Noteholder as
provided herein. Payments in reduction of the portion of the Class A-1 Principal
Balance evidenced by a Class A-1 Note shall be allocated and applied to Class
A-1 Owners of such Class A-1 Note pro rata based on their respective Percentage
Interests of the Class A-1 Principal Balance, or in any such case in such other
proportions as each affected Class A-1 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-1 Principal Balance made after the date of
the occurrence of the related Partial Expiration Event equals (B) the related
Class A-1 Mandatory Partial Amortization Amount, payments in reduction of the
portion of the Class A-1 Principal Balance shall be allocated and applied to
Nonextending Class A-1 Purchasers and related CP Conduits pro rata based on
their respective shares of the Class A-1 Principal Balance which were used to
- 18 -
determine such Class A-1 Mandatory Partial Amortization Amount. Payments of
interest in respect of the portion of the Class A-1 Principal Balance evidenced
by a Class A-1 Note shall be allocated and applied to Class A-1 Owners of such
Class A-1 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-1 Usage Fee shall be allocated and paid to Class A-1 Owners pro rata
based upon their respective interest in the Class A-1 Principal Balance for the
applicable Interest Period. Payments of the Class A-1 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-1 Purchasers in such Purchaser Group. Each
Class A-1 Purchaser in a Purchaser Group shall be entitled to receive the share
of the Class A-1 Commitment Fee allocated to such Purchaser Group as may be
agreed upon from time to time between such Class A-1 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-1 Monthly Interest and Fees, shall be payable as a
part of Class A-1 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-1 Usage Fees, Class A-1 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.
(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
- 19 -
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-1 Purchaser or (ii) the
Administrative Agent or an Agent or Class A-1 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-1 Purchaser, as the case may be.
(h) If its Percentage Interest of the Class A-1 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-1 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-1 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-1 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 pursuant to this Agreement shall be
conclusive and binding on the Class A-1 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-1 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-1 Principal Balance of such Class A-1 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-1 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
- 20 -
Prime Rate, if then applicable to any portion of the Class A-1 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-1 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-1 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-1 Principal Balance of Class A-1 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-1 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-1 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-1 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-1 Principal Balance held by
such Class A-1 Purchaser or Purchaser Group, as the case may be, which is
scheduled to be repaid on such Interim Distribution Date.
2.4 Requirements of Law.
(a) In the event that any Class A-1 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-1 Purchaser and the result of any of the foregoing is to
increase the cost to such Class A-1 Purchaser, by an amount which such Class A-1
Purchaser deems to be material, of maintaining its Commitment or its interest in
the Class A-1 Notes or to reduce any amount receivable in respect thereof, then,
in any such case, after submission by such Class A-1 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-1 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-1 Purchaser for such increased cost or reduced amount receivable,
to the extent not already reflected in the applicable interest rate, no later
than the
- 21 -
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-1 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-1 Purchaser's capital
or on the capital of any Person controlling such Class A-1 Purchaser as a
consequence of its obligations hereunder or its maintenance of its Commitment or
its interest in the Class A-1 Notes to a level below that which such Class A-1
Purchaser or such Person could have achieved but for such Regulatory Change
(taking into consideration such Class A-1 Purchaser's or such Person's policies
with respect to capital adequacy) by an amount deemed by such Class A-1
Purchaser or such Person to be material, then, from time to time, after
submission by such Class A-1 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-1 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-1 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-1 Purchaser to the extent such Class A-1 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.
(c) Each Class A-1 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-1 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-1 Purchaser, be
unlawful or otherwise disadvantageous to such Class A-1 Purchaser or
inconsistent with its policies or result in any unreimbursed cost or expense to
such Class A-1 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-1 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-1 Purchaser. No
replacement of a Class A-1 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-1 Purchaser hereunder. Each affected Class A-1 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.
- 22 -
Notwithstanding the foregoing, (i) if the Class A-1 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-1 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-1 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-1 Purchaser has not been
promptly procured as provided in this subsection with the consent of all
affected parties, then any Class A-1 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-1 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-1 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-1 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-1 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-1 Purchaser shall not be
compensated for any such amount relating to any period ending, and of which such
Class A-1 Purchaser has had knowledge, more than six months prior to the date
that such Class A-1 Purchaser notifies the Issuer and the Servicer in writing
thereof or for any amounts resulting from a change by any Class A-1 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-1 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-1 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-1 Purchaser, Participant, Agent or the Administrative Agent (as the case may
be) or the gross receipts or income of such Class A-1 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
- 23 -
Class A-1 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-1 Purchaser, Participant, Agent or the Administrative Agent, as
applicable; and (iii) any Taxes imposed as a result of a change by any Class A-1
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-1 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-1 Purchaser to
the Agent for its Purchaser Group (in the case of an amount payable to a Class
A-1 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-1 Purchaser or Agent or the Administrative Agent, as applicable, shall be
increased, and such Class A-1 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-1 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
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-1 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-1 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-1 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-1 Purchaser, or to such Agent or the Administrative
Agent, as applicable, the required receipts or other required documentary
evidence, such Class A-1 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
- 24 -
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-1 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-1 Purchaser claiming increased amounts under
subsection 2.5(a) hereof for Taxes paid or payable by such Class A-1 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-1 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-1 Purchaser or Agent or the
Administrative Agent shall be conclusive absent manifest error. Failure on the
part of any Class A-1 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-1
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-1 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 Date and otherwise shall be
due and payable on the following Distribution Date (or, if earlier, on the
Termination Date).
(c) Each Class A-1 Purchaser and each Participant holding an
interest in Class A-1 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-1 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-1 Purchaser or Participant is entitled to receive payments under this
Agreement and with respect to the Class A-1 Notes without deduction or
withholding of any United States federal income taxes, (ii) in the case of any
other Class A-1 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-1 Purchaser or Participant holding an interest in Class A-1
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
- 25 -
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-1 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-1 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-1 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-1 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-1 Purchaser, be unlawful or otherwise
disadvantageous to such Class A-1 Purchaser or inconsistent with its policies or
result in any unreimbursed cost or expense to such Class A-1 Purchaser. If such
amount is not eliminated by any such designation or no such designation is done
and the Class A-1 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-1 Purchaser. No replacement of a Class A-1 Purchaser shall be effected
pursuant to this subsection 2.5(d) if, after giving effect thereto, any amounts
shall be owing to the replaced Class A-1 Purchaser hereunder. Each affected
Class A-1 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-1 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-1 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-1 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-1 Purchaser has not been
promptly procured as provided in this subsection with the consent of all
affected parties, then any Class A-1 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.
- 26 -
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-1
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:
(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);
- 27 -
(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; or
(ix) the commingling of the proceeds of the
Collateral at any time with other funds.
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, 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-1 Principal Balance shall change from the Commercial Paper Rate
to the Alternative Rate or from the Adjusted Eurodollar
- 28 -
Rate to the Prime Rate, (ii) the Issuer shall revoke or cancel any Borrowing
Notice or decrease the Additional Class A-1 Principal Amount subject thereto, or
(iii) any Class A-1 Purchaser receives any repayment of any portion of its share
of any Borrowing constituting a part of the Class A-1 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-1 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-1 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-1
Principal Balance, or, in the case of any Class A-1 Purchaser, redeploying funds
prepaid or repaid, in amounts which correspond to its share of the Class A-1
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-1 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).
2.7 Expenses, etc.
(a) The Sellers agree to pay on demand (i) to the
Administrative Agent and the initial Class A-1 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-1 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-1 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-1 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-1 Purchaser, on demand, all
reasonable costs and expenses
- 29 -
(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-1 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-1 Purchasers, and, at the direction of the Majority Class A-1
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.
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;
- 30 -
(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-1 Purchaser, or
accompanied by a letter providing that the Administrative Agent and each
Agent and Class A-1 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 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-1
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;
- 31 -
(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-1 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-1 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-1 Purchasers payable by the Sellers, to the extent provided herein,
in connection with the transactions contemplated hereby;
(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 Purchaser; and
(v) the duly executed Class A-1 Note(s) registered
in the name of each Agent as nominee on behalf of the Class A-1 Owners
in its Purchaser Group.
(g) evidence satisfactory to each initial CP Conduit that
its purchase of Class A-1 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.
- 32 -
Part II. The following shall be conditions precedent to the obligations
of any Class A-1 Purchaser to purchase its share of the initial Additional Class
A-1 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-1 Purchaser to purchase
its share of any Additional Class A-1 Principal Amount (other than an Additional
Class A-1 Principal Amount which refunds a Swingline Borrowing) on any Purchase
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-1 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;
(c) in the case of any Borrowing Date, all conditions to 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 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-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, all representations and warranties of the Sellers, the Issuer
and the Servicer contained herein or in the Related Documents or
- 33 -
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-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, the Class A-1 Principal Balance shall be equal to or less than
the Class A-1 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;
(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-1 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
- 34 -
severally, with respect to itself only, further represents and warrants to, and
agrees with, each Class A-1 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 business 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, 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-1 Purchasers, there is no
litigation or administrative proceeding before any court, tribunal or
governmental body presently pending or threatened,
- 35 -
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 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
- 36 -
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 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.
- 37 -
(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 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-1 Principal Balance shall remain outstanding or any monetary
obligation arising hereunder shall remain unpaid, unless the Required Class A-1
Owners and the Required Class A-1 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
- 38 -
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 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
- 39 -
provisions of Section 6.2 hereof, except that the Administrative Agent or such
Agent may disclose such information to any Class A-1 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-1 Notes under this Agreement), except
as the Administrative Agent or such Agent or Class A-1 Purchaser may have
consented to 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-1
Purchaser of its intention to make any such disclosure prior to making such
disclosure.
6.2 Covenants of Class A-1 Purchasers. Subject to the
provisions of Section 8.1(c) hereof, the Administrative Agent and each Agent and
Class A-1 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-1 Purchaser hereunder may in all
cases be distributed to the Administrative Agent or to any Agent or Class A-1
Purchaser) except that the Administrative Agent or such Agent or Class A-1
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-1 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-1 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-1 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-1 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-1 Purchaser bound by a
confidentiality agreement with the affected party, (vii) has been independently
acquired or developed by the
- 40 -
Administrative Agent or such Agent or Class A-1 Purchaser without violating any
of the Administrative Agent or such Agent or Class A-1 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
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-1 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-1 Purchaser and
Agent irrevocably authorizes the Administrative Agent, as the agent for such
Class A-1 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-1 Purchaser in each Purchaser Group hereby
irrevocably designates and appoints the Agent for such Purchaser Group as the
agent of such Class A-1 Purchaser under this Agreement, and each such Class A-1
Purchaser irrevocably authorizes such Agent, as the agent for such Class A-1
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-1 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-1 Purchasers in its Purchaser Group conflicts
with any agreement between such Class A-1 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
- 41 -
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-1 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-1
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 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-1
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-1
Owners and the Required Class A-1 Purchasers as it deems appropriate or it shall
first be indemnified to its satisfaction by the Class A-1 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-1 Owners in its Purchaser Group having Percentage
Interests aggregating greater than 50% of the aggregate Percentage Interests of
all Class A-1 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-1 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-1 Purchaser,
- 42 -
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-1
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-1 Owners in
its Purchaser Group having Percentage Interests aggregating greater than 50% of
the aggregate Percentage Interests of all Class A-1 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-1
Purchasers or of the Class A-1 Purchasers in its Purchaser Group, as applicable.
7.6 Non-Reliance on Agents and Other Class A-1 Purchasers.
Each Class A-1 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 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-1 Purchaser. Each Class
A-1 Purchaser represents to each Agent that it has, independently and without
reliance upon any Agent or any other Class A-1 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-1 Notes hereunder and enter into this
Agreement. Each Class A-1 Purchaser also represents that it will, independently
and without reliance upon any Agent or any other Class A-1 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-1 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
- 43 -
the payment of the obligations under this Agreement, including the Class A-1
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-1 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-1 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-1 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
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-1 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-1 Owners in its Purchaser Group having Percentage Interests aggregating
greater than 51% of the aggregate Percentage Interests of all Class A-1 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.
- 44 -
ARTICLE 8 SECURITIES LAWS; TRANSFERS
8.1 Transfers of Class A-1 Notes.
(a) Each Class A-1 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-1 Owner agrees that the beneficial
interest in the Class A-1 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-1 Owner will not offer to sell or otherwise dispose of any Class A-1 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-1 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-1 Notes (or the beneficial interest
therein) acquired by it pursuant to this Agreement, any Joinder Supplement or
any Transfer Supplement. Each Class A-1 Owner hereby confirms and agrees that in
connection with any transfer or syndication by it of an interest in the Class
A-1 Notes, such Class A-1 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 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-1 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-1 Notes without deduction
or withholding of any United States federal income taxes and whose ownership of
any interest in a Class A-1 Note will not result in any withholding obligation
with respect to any payments with respect to the Class A-1 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-1
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-1 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-1 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-1 Principal Balance or
(B) to the extent in excess of the Class A-1 Principal Balance subject to such
Transfer, Commitment hereunder. Any Transfer of an interest in a Class A-1 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-1 Purchaser's beneficial interest in such Class A-1 Note. No Class A-1 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.
- 45 -
A transferring Class A-1 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-1 Purchaser which is a Conduit Purchaser.
Each of AFC, the Sellers, the Issuer, AmeriCredit and
the Servicer authorizes each Class A-1 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-1 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-1 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-1 Purchaser by or on behalf of AFC, either Seller, the Issuer,
AmeriCredit and the Servicer in connection with such Class A-1 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-1 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 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-1 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-1 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-1 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-1 Purchaser's beneficial interest (if
any) in the Class A-1 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-1 Purchaser hereby acknowledges and agrees that (A) any such
Participation will not alter or affect such Class A-1 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-1 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-1 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-1 Purchaser; provided, further, no Participant
shall be entitled to receive additional amounts or indemnification in amounts in
excess of those the participating Class A-1 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-1 Purchaser shall
give the Agent for its Purchaser Group notice of the consummation of any sale by
it of a
- 46 -
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-1 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-1 Purchaser.
(e) Each Class A-1 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-1 Notes and its rights and obligations under this Agreement and the
Related Documents pursuant to an agreement substantially in the form attached
hereto as Exhibit B hereto (a "Transfer Supplement"), executed by such Assignee
and such Class A-1 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-1 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-1 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-1 Purchaser hereunder as set forth therein and (y) the transferor
Class A-1 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-1 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
- 47 -
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-1
Purchaser's beneficial interest in the Class A-1 Notes (or portion thereof) and
surrender for registration of transfer of such Class A-1 Purchaser's Class A-1
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-1 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-1 Notes shall be
issued to the Assignee and, if applicable, the transferor Class A-1 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.
(f) Each Class A-1 Purchaser may pledge its interest in the
Class A-1 Notes to any Federal Reserve Bank as collateral in accordance with
applicable law.
(g) Any Class A-1 Purchaser shall have the option to change
its Investing Office, provided that such Class A-1 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-1 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-1 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-1 Purchaser and such Section applied to its
interest in or commitment to acquire an interest in the Class A-1 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-1 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-1 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
- 48 -
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-1 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-1 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 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-1
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-1 Purchaser (or a
Participant or Support Party for such Class A-1 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-1 Purchaser. No replacement of a Class A-1 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-1 Purchaser hereunder. Each
affected Class A-1 Purchaser hereby agrees to take all actions reasonably
necessary to permit a Replacement Purchaser to succeed to its rights and
obligations hereunder.
- 49 -
Notwithstanding the foregoing or the provisions of subsection
8.1(j), (i) if the Class A-1 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-1 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-1 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.
8.2 Tax Characterization. It is the intention of the parties
hereto that the Class A-1 Notes be treated for tax purposes as indebtedness, and
the parties hereto agree to so treat the Class A-1 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-1 Owners and the Required Class A-1 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-1
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-1 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-1
Purchasers affected thereby, (ii) amend, modify or waive any provision of this
Section 9.1, or the definition of "Class A-1 Principal Balance", or reduce the
percentage specified in the definition of Majority Class A-1 Owners, Majority
Class A-1 Purchasers, Required Class A-1 Owners or Required Class A-1
Purchasers, in each case without the written consent of all Class A-1 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
- 50 -
defined in the Indenture) of Class A-1 Notes in its Purchaser Group if it has
been directed to do so by Class A-1 Owners in such Purchaser Group having
Percentage Interests aggregating greater than 50% of the aggregate Percentage
Interests of all Class A-1 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-1 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:
Administrative Bankers Trust Company
Agent: 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 Bankers Trust Company, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ (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-1 Purchasers promptly upon receipt. Unless otherwise directed by
an Agent or Class A-1 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.
- 51 -
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-1 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-1 Owners and the Required Class A-1 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 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.
- 52 -
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-1 Purchasers with respect to
the subject matter hereof, and there are no promises, 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 CONFLICTS OF LAW PROVISIONS.
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-1
Principal Balance and all other amounts payable to the Class A-1 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
- 53 -
termination of this Agreement and any amounts payable to the Administrative
Agent, the Agents, Class A-1 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-1 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-1 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-1 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
- 54 -
hereto or in connection herewith shall survive the execution and delivery of
this Agreement, the purchase of the Class A-1 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-1 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 AND FOR CLASS A-1
PURCHASERS PURCHASING AN INTEREST IN THE CLASS A-1 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 Bankers Trust (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 Bankers Trust (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 Bankers Trust (Delaware), individually or personally,
to perform any covenant either expressed or implied contained herein, all such
liability, if any, being expressly waived by the parties hereto and by any
Person claiming by, through or under the parties hereto and (d) under no
circumstances shall Bankers Trust (Delaware) be personally liable for the
payment of any indebtedness or expenses of the 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-1 Purchaser hereby expressly consents to: (i)
the amendment and restatement of the Indenture as provided in the Amended and
Restated Indenture, dated as of February 22, 2002, 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 Amended and Restated Sale
and Servicing Agreement, dated as of February 22, 2002, 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-1 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-1 Note to
one or more Support Parties.
- 55 -
[Remainder of page intentionally left blank.]
- 56 -
IN WITNESS WHEREOF, the parties hereto have caused this Class
A-1 Note Purchase Agreement to be duly executed by their respective officers as
of the day and year first above written.
AMERICREDIT MASTER TRUST
By: Bankers Trust (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:
BANKERS TRUST COMPANY,
as Administrative Agent
By:
--------------------------------------
Name:
Title:
By:
-------------------------------------
Name:
Title:
Address for Notices:
Mail Stop: NYC1701
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇▇▇ / ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
GEMINI 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-1 Purchaser: GEMINI SECURITIZATION CORP.
CP Conduit
Maximum Purchase By:
Amount: $ --------------------------------------
Name:
Title:
Address for Notices and Investing Office:
▇/▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇, ▇▇▇ ▇▇▇▇ Branch
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Structured Finance
Department/Securitization
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Type of Class A-1 Purchaser: DEUTSCHE BANK AG, NEW YORK BRANCH,
Committed
Commitment: $ 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.: (▇▇▇) ▇▇▇-▇▇▇▇
EXHIBIT A
FORM OF INVESTMENT LETTER
[Date]
[Name and address of Issuer]
[Name and address of Transferee Class A-1 Purchaser]
Re AmeriCredit Master Trust
Floating Rate Asset Backed Notes, Class A-1
Ladies and Gentlemen:
This letter (the "Investment Letter") is delivered by the
undersigned (the "Purchaser") pursuant to subsection 8.1(a) of the Amended and
Restated Class A-1 Note Purchase Agreement dated as of February 22, 2002 (as in
effect, the "Note Purchase Agreement"), among AFC, AmeriCredit Master Trust,
AmeriCredit Financial Services, Inc., the Class A-1 Purchasers and the Agents
parties thereto and Bankers Trust Company, 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-1 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-1
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-1 Notes, and will, independently and without reliance upon
the Administrative Agent, any Agent or any other Class A-1 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-1 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-1 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-1
Notes without a view to any distribution, resale or other transfer
thereof except, with respect to any Class A-1 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-1 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-1 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-1 Purchaser set forth in Item 2 of
Schedule I hereto (the "Seller Class A-1 Purchaser"), the Purchasing Class A-1
Purchaser set forth in Item 3 of Schedule I hereto (the "Purchasing Class A-1
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 Amended and Restated Class A-1 Note
Purchase Agreement, dated as of February 22, 2002, among AmeriCredit Master
Trust, AmeriCredit Funding Corp. VII, AmeriCredit Financial Services, Inc. (the
"AmeriCredit Parties"), the Class A-1 Purchasers and the Agents parties thereto
and Bankers Trust Company, 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-1 Purchaser (if it is not
already a Class A-1 Purchaser party to the Note Purchase Agreement) wishes to
become a Class A-1 Purchaser party to the Note Purchase Agreement and the
Purchasing Class A-1 Purchaser wishes to acquire and assume from the Seller
Class A-1 Purchaser, certain of the rights, obligations and commitments under
the Note Purchase Agreement; and
WHEREAS, the Seller Class A-1 Purchaser wishes to sell and
assign to the Purchasing Class A-1 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-1 Purchaser,
the Purchasing Class A-1 Purchaser and the Agent, the Agent will promptly
transmit to the Servicer, the Sellers, the Trustee, the Seller Class A-1
Purchaser and the Purchasing Class A-1 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-1 Purchaser shall
be a Class A-1 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-1 Purchaser, on the Transfer Effective Date, the Purchasing Class A-1
Purchaser shall pay to the Seller Class A-1 Purchaser, in immediately available
funds, an amount equal to the purchase price, as agreed between the Seller Class
A-1 Purchaser and such Purchasing Class A-1 Purchaser (the "Purchase Price"), of
the portion set forth on Schedule II hereto being purchased by such Purchasing
Class A-1 Purchaser of the outstanding Class A-1 Principal Balance under the
Class A-1 Note owned by the Seller Class A-1 Purchaser (such Purchasing Class
A-1 Purchaser's "Purchaser Percentage") and other amounts owing to the Seller
Class A-1 Purchaser under the Note Purchase Agreement or otherwise in respect of
the Class A-1 Notes.
Effective upon receipt by the Seller Class A-1 Purchaser of the
Purchase Price from the Purchasing Class A-1 Purchaser, the Seller Class A-1
Purchaser hereby irrevocably sells, assigns and transfers to the Purchasing
Class A-1 Purchaser, without recourse, representation or warranty, and the
Purchasing Class A-1 Purchaser hereby irrevocably purchases, takes and assumes
from the Seller Class A-1 Purchaser, the Purchasing Class A-1 Purchaser's
Purchaser Percentage of (i) the presently outstanding Class A-1 Principal
Balance under the Class A-1 Notes owned by the Seller Class A-1 Purchaser and
other amounts owing to the Seller Class A-1 Purchaser in respect of the Class
A-1 Notes, together with all instruments, documents and collateral security
pertaining thereto, and (ii) the Purchasing Class A-1 Purchaser's Purchaser
Percentage of (A) if the Seller Class A-1 Purchaser is a CP Conduit, the
Purchaser Percentage of the Seller Class A-1 Purchaser and the other rights and
duties of the Seller Class A-1 Purchaser under the Note Purchase Agreement, or
(B) if the Seller Class A-1 Purchaser is a Committed Purchaser, the Liquidity
Percentage and the Commitment of the Seller Class A-1 Purchaser and other
rights, duties and obligations of the Seller Class A-1 Purchaser under the Note
Purchase Agreement.
This Supplement is intended by the parties hereto to effect a
purchase by the Purchasing Class A-1 Purchaser and sale by the Seller Class A-1
Purchaser of interests in the Class A-1 Notes, and it is not to be construed as
a loan or a commitment to make a loan by the Purchasing Class A-1 Purchaser to
the Seller Class A-1 Purchaser. The Seller Class A-1 Purchaser hereby confirms
that the amount of the Class A-1 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-1
Purchaser and the Purchasing Class A-1 Purchaser and the Commitment and the
Liquidity Percentage, if applicable, of the Seller Class A-1 Purchaser and the
Purchasing Class A-1 Purchaser shall be as set forth in Schedule II to this
Supplement.
(c) The Seller Class A-1 Purchaser has made arrangements
with the Purchasing Class A-1 Purchaser with respect to (i) the portion, if any,
to be paid, and the date or dates for payment, by the Seller Class A-1 Purchaser
to the Purchasing Class A-1 Purchaser of any fees heretofore received by the
Seller Class A-1 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-1 Purchaser to the Seller Class
A-1 Purchaser of fees or interest received by the Purchasing Class A-1 Purchaser
pursuant to the
B-2
Note Purchase Agreement or otherwise in respect of the Class A-1 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-1 Purchaser in respect of the Class A-1 Notes shall, instead, be
payable to or for the account of the Seller Class A-1 Purchaser and the
Purchasing Class A-1 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-1 Purchaser from and
after the Transfer Effective Date pursuant to the Note Purchase Agreement or in
respect of the Class A-1 Notes shall, instead, accrue for the account of, and be
payable to or for the account of, the Seller Class A-1 Purchaser and the
Purchasing Class A-1 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-1 Purchaser, the Seller Class A-1 Purchaser and the Purchasing Class A-1
Purchaser will make appropriate arrangements for payment by the Seller Class A-1
Purchaser to the Purchasing Class A-1 Purchaser of such amount upon receipt
thereof from the Agent.
(e) Concurrently with the execution and delivery hereof, the
Purchasing Class A-1 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-1 Purchaser and the Purchasing Class A-1 Purchaser confirm to and agree
with each other, the Agent and the Class A-1 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-1 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-1 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-1 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-1 Purchaser will, independently
and without reliance upon the Administrative Agent, any Agent (as defined in the
Note Purchase Agreement) the Seller Class A-1 Purchaser or any other Class A-1
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-1 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-1 Purchaser agrees (for the benefit of the Seller Class A-1
Purchaser, the Administrative Agent, the Agents (as defined in the Note Purchase
Agreement), the Class A-1 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-1 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-1 Purchaser, as applicable, the Purchaser Percentage or the
Liquidity Percentage, as applicable, and the Commitment of the Purchasing Class
A-1 Purchaser, as applicable, and the initial Investing Office of the Purchasing
Class A-1 Purchaser, as well as administrative information with respect to the
Purchasing Class A-1 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: Amended and Restated Class A-1 Note Purchase Agreement, dated as
of February 22, 2002, among AmeriCredit Master Trust,
AmeriCredit Funding Corp. VII, AmeriCredit Financial Services,
Inc., the Class A-1 Purchasers and the Agents parties thereto
and Bankers Trust Company, as Administrative Agent
Item 1: Date of Transfer Supplement:
Item 2: Seller Class A-1 Purchaser:
Item 3: Purchasing Class A-1 Purchaser:
Item 4: Name of Agent:
Item 5: Name of Purchaser Group:
Item 6: Signatures of Parties to Agreement:
-------------------------------------
as Seller Class A-1 Purchaser
By:
----------------------------------
Name:
Title:
By:
---------------------------------
Name:
Title:
B-5
as Purchasing Class A-1 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:]
BANKERS TRUST COMPANY,
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-1 Purchaser]
A. Type of Purchaser: CP Conduit: Yes/No
Committed Purchaser: Yes/No
B. Purchaser Percentage:
Seller Class A-1 Purchaser Purchaser Percentage
Prior to Sale: ______%
Purchaser Percentage Sold: ______%
Purchaser Percentage Retained: ______%
C. Commitment (if applicable)
Seller Class A-1 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-1 Principal Balance:
Seller Class A-1 Purchaser
Class A-1 Principal Balance Prior to Sale: $_______
Class A-1 Principal Balance Sold: $_______
B-7
Class A-1 Principal Balance Retained: $_______
[Purchasing Class A-1 Purchaser]
A. Type of Purchaser: CP Conduit: Yes/No
Committed Purchaser: Yes/No
B. Purchaser Percentage:
Transferee Class A-1 Purchaser Purchaser Percentage
After Sale: ______%
C. Commitment (if applicable)
Transferee Class A-1 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-1 Principal Balance:
Transferee Class A-1 Purchaser
Class A-1 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-1 Purchaser and
Purchasing Class A-1 Purchaser]
The undersigned, as Agent under the Amended and Restated Class
A-1 Note Purchase Agreement, dated as of February 22, 2002, among AmeriCredit
Master Trust, AmeriCredit Funding Corp. VII, AmeriCredit Financial Services,
Inc., the Class A-1 Purchasers and the Agents parties thereto and Bankers Trust
Company, 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 Bankers Trust Company, 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
Amended and Restated Class A-1 Note Purchase Agreement, dated as of February 22,
2002, among AmeriCredit, AFC, the Issuer, the Class A-1 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-1 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-1 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-1 Purchasers as follows: (i) none of the Administrative Agent, the
Agents or the Class A-1 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-1 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-1 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-1 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-1 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: Amended and Restated Class A-1 Note Purchase Agreement, dated as
of February 22, 2002, among AmeriCredit Master Trust,
AmeriCredit Funding Corp. VII, AmeriCredit Financial Services,
Inc., the other parties thereto and Bankers Trust Company, as
Administrative Agent.
Item 1: Date of Joinder Supplement: ______________
Item 2: Proposed Purchaser: _________________________________
Item 3: Type of Class A-1 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:
BANKERS TRUST COMPANY,
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 Amended and Restated
Class A-1 Note Purchase Agreement, dated as of February 22, 2002, among
AmeriCredit Master Trust, AmeriCredit Funding Corp. VII, AmeriCredit Financial
Services, Inc., the other parties thereto and Bankers Trust Company, 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-1 Purchaser designated as a [CP Conduit][Committed
Purchaser with a Commitment of $__________].
Very truly yours,
BANKERS TRUST COMPANY,
as Administrative Agent
By:
---------------------------------
Name:
Title:
By:
---------------------------------
Name:
Title:
C-6
EXHIBIT D
FORM OF BORROWING NOTICE
[date]
To: Bankers Trust Company,
as Administrative Agent
Mail Stop: NYC1701
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇▇▇ / ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Bank One, NA, as Trustee
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ - ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Re: Borrowing under Amended and Restated Indenture, dated as of
February 22, 2002 (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 business trust (the "Issuer"), Bank One, NA, a
national banking association, as Trustee and Trust Collateral
Agent, and Bankers Trust Company, 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) Amended and Restated Class A-1 Note Purchase Agreement,
dated as of February 22, 2002, 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) Amended and Restated Class A-2 Note Purchase Agreement,
dated as of February 22, 2002, 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) Amended and Restated Class B Note Purchase Agreement,
dated as of February 22, 2002, 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) Amended and Restated Class C Note Purchase Agreement,
dated as of February 22, 2002, 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.
D-1
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: Bankers Trust Company,
as Administrative Agent
Mail Stop: NYC1701
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇▇▇ / ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
[addresses of other Agents]
Re: Borrowing under Amended and Restated Indenture, dated as of
February 22, 2002 (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 business trust (the "Issuer"), Bank One, NA, a
national banking association, as Trustee and Trust Collateral
Agent, and Bankers Trust Company, 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) Amended and Restated Class A-1 Note Purchase Agreement,
dated as of February 22, 2002, 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) Amended and Restated Class A-2 Note Purchase Agreement,
dated as of February 22, 2002, 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) Amended and Restated Class B Note Purchase Agreement,
dated as of February 22, 2002, 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) Amended and Restated Class C Note Purchase Agreement,
dated as of February 22, 2002, 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.......................................12
ARTICLE 2 AMOUNT AND TERMS OF COMMITMENTS...................................13
2.1 Purchases...........................................................13
2.2 Reductions and Extensions of Commitments............................15
2.3 Interest, Fees, Expenses, Payments, Etc.............................17
2.4 Requirements of Law.................................................21
2.5 Taxes...............................................................23
2.6 Indemnification.....................................................27
2.7 Expenses, etc.......................................................29
2.8 Effect of Event of Default..........................................30
ARTICLE 3 CONDITIONS PRECEDENT..............................................30
3.1 Conditions to Initial Purchase......................................30
3.2 Condition to Purchases..............................................32
ARTICLE 4 REPRESENTATIONS AND WARRANTIES....................................34
4.1 Representations and Warranties of AmeriCredit, AFC and the Issuer...34
ARTICLE 5 COVENANTS.........................................................38
5.1 Covenants...........................................................38
ARTICLE 6 MUTUAL COVENANTS REGARDING CONFIDENTIALITY........................40
6.1 Covenants...........................................................40
6.2 Covenants of Class A-1 Purchasers...................................40
ARTICLE 7 THE AGENTS........................................................41
7.1 Appointment.........................................................41
7.2 Delegation of Duties................................................41
7.3 Exculpatory Provisions..............................................42
7.4 Reliance by Agents..................................................42
7.5 Notices.............................................................42
7.6 Non-Reliance on Agents and Other Class A-1 Purchasers...............43
7.7 Indemnification.....................................................43
7.8 Agents in their Individual Capacity.................................44
7.9 Successor Agents....................................................44
ARTICLE 8 SECURITIES LAWS; TRANSFERS........................................45
8.1 Transfers of Class A-1 Notes........................................45
8.2 Tax Characterization................................................50
Table of Contents
(continued)
Page
----
ARTICLE 9 MISCELLANEOUS.....................................................50
9.1 Amendments and Waivers..............................................50
9.2 Notices.............................................................51
9.3 No Waiver; Cumulative Remedies......................................51
9.4 Successors and Assigns..............................................52
9.5 Successors to Servicer..............................................52
9.6 Counterparts........................................................53
9.7 Severability........................................................53
9.8 Integration.........................................................53
9.9 Governing Law.......................................................53
9.10 Jurisdiction; Consent to Service of Process........................53
9.11 Termination........................................................53
9.12 No Proceedings.....................................................54
9.13 Survival of Representations and Warranties.........................54
9.14 Waiver of Jury Trial...............................................55
9.15 Limitation of Liability of Owner Trustee...........................55
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)