Exhibit 10.31
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SECOND AMENDED AND RESTATED
SECURITY AND FUNDING AGREEMENT
by and among
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AMERICREDIT MANHATTAN TRUST, as Borrower,
THE CHASE MANHATTAN BANK,
as Administrative Agent on behalf
of the Secured Parties
and as Securities Intermediary
and
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THE SEVERAL SECURED PARTIES AND FUNDING AGENTS
PARTY HERETO FROM TIME TO TIME
Dated as of April 27, 2001
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TABLE OF CONTENTS
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ARTICLE I
DEFINITIONS
Section 1.1 Defined Terms ...................................................2
ARTICLE II
THE COLLATERAL
Section 2.1 Grant of Security Interest by the Borrower ......................2
Section 2.2 No Transfer of Duties ...........................................4
Section 2.3 Termination and Release of Rights ...............................4
ARTICLE III
THE ADMINISTRATIVE AGENT
Section 3.1 Appointment and Powers ..........................................6
Section 3.2 Performance of Duties ...........................................6
Section 3.3 Limitation on Liability .........................................6
Section 3.4 Indemnification .................................................7
Section 3.5 Compensation and Reimbursement ..................................7
Section 3.6 Waiver of Setoffs ...............................................7
Section 3.7 Control by the Required Lending Groups ..........................8
Section 3.8 Successor Administrative Agent ..................................8
Section 3.9 Notices to Funding Agents .......................................9
ARTICLE IV
REPRESENTATIONS, WARRANTIES AND COVENANTS
OF THE BORROWER
Section 4.1 Representations and Warranties of the Borrower ..................9
Section 4.2 Covenants of the Borrower ......................................12
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ARTICLE V
REQUIRED LENDING GROUPS; INTERCREDITOR PROVISIONS
Section 5.1 Authority of Required Lending Groups ...........................18
Section 5.2 Rights of Secured Parties ......................................18
Section 5.3 Degree of Care .................................................18
ARTICLE VI
TERMINATION EVENTS; REMEDIES
Section 6.1 Termination Events; Remedies ...................................20
Section 6.2 Restoration of Rights and Remedies .............................23
Section 6.3 No Remedy Exclusive ............................................23
ARTICLE VII
FUNDINGS; THE VFN
Section 7.1 Loans to Borrower; Funding Procedures; the VFN .................24
Section 7.2 Sharing of Payments, Etc .......................................36
Section 7.3 Right of Setoff ................................................37
Section 7.4 Interest .......................................................37
Section 7.5 Payments Generally .............................................38
Section 7.6 Broken Funding .................................................38
Section 7.7 Conversion and Continuation of Outstanding Advances
Made by the APA Banks ..........................................39
Section 7.8 Illegality .....................................................40
Section 7.9 Inability to Determine Eurodollar Rate .........................41
Section 7.10 Fees ..........................................................41
ARTICLE VIII
INDEMNIFICATION
Section 8.1 Indemnity ......................................................42
Section 8.2 Indemnity for Reserves and Expenses ............................43
Section 8.3 Indemnity for Taxes ............................................46
Section 8.4 Other Costs, Expenses and Related Matters ......................47
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ARTICLE IX
MISCELLANEOUS
Section 9.1 Further Assurances ............................................49
Section 9.2 Waiver ........................................................49
Section 9.3 Amendments; Waivers ...........................................49
Section 9.4 Severability ..................................................50
Section 9.5 Nonpetition Covenant ..........................................50
Section 9.6 Notices .......................................................51
Section 9.7 Term of this Agreement ........................................51
Section 9.8 Assignments; Third-Party Rights ...............................51
Section 9.9 Consent of Required Lending Groups ............................51
Section 9.10 Limitation of Liability .......................................52
Section 9.11 Counterparts ..................................................52
Section 9.12 Headings ......................................................52
Section 9.13 No Recourse Against Certain Parties ...........................52
Section 9.14 Respective Rights of the Borrower and the Secured
Parties in the Collateral .....................................53
Section 9.15 Consents ......................................................53
Section 9.16 Trial by Jury Waived ..........................................54
Section 9.17 Liabilities and Rights of Funding Agents ......................54
Section 9.18 CP Lenders Generally ..........................................55
Section 9.19 Governing Law .................................................56
Section 9.20 No Recourse ...................................................57
Section 9.21 Certain Special Provisions Regarding Victory ..................57
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SECOND AMENDED AND RESTATED
SECURITY AND FUNDING AGREEMENT
SECOND AMENDED AND RESTATED SECURITY AND FUNDING AGREEMENT, dated as of
April 27, 2001 (this "Agreement"), by and among AMERICREDIT MANHATTAN TRUST, a
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Delaware business trust (the "Borrower"), THE CHASE MANHATTAN BANK, a New York
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banking corporation, as administrative agent on behalf of the Secured Parties
and as securities intermediary hereunder (together with its successors and
assigns in such capacities, the "Administrative Agent" and the "Securities
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Intermediary", respectively) and THE SEVERAL SECURED PARTIES AND FUNDING AGENTS
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PARTY HERETO FROM TIME TO TIME.
WITNESSETH:
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WHEREAS, pursuant to the Sale and Servicing Agreement, dated as of the date
hereof (the "Sale and Servicing Agreement"), among the Sellers, the Servicer,
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the Backup Servicer, the Borrower, and the Administrative Agent, the Sellers
intend to sell to the Borrower from time to time all of their rights, title and
interests in and to certain receivables, securities and the other property
specified therein; and
WHEREAS, the Borrower desires to obtain financing for the purchase of such
receivables and securities;
WHEREAS, the parties hereto have entered into that certain Amended and
Restated Security and Funding Agreement, dated as of March 30, 2001 (the
"Original Agreement");
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WHEREAS, the parties hereto desire to amend and restate the Original
Agreement on the terms and conditions set forth herein; and
WHEREAS, it is a condition, among others, to the Borrower's obtaining
advances hereunder that the Borrower grant to the Administrative Agent on behalf
of the Secured Parties a first priority security interest in all of the
Borrower's right, title and interest in and to the Receivables, the Asset Backed
Securities and the other property specified herein;
NOW THEREFORE, for good and valuable consideration, the adequacy, receipt
and sufficiency of which are hereby acknowledged, the parties hereto hereby
agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1 Defined Terms. Terms defined in Annex A to the Sale and
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Servicing Agreement, unless otherwise defined herein, shall have such defined
meanings when used herein.
ARTICLE II
THE COLLATERAL
Section 2.1 Grant of Security Interest by the Borrower.
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(a) The Borrower hereby grants to the Administrative Agent, on behalf of
and for the benefit of the Secured Parties to secure the payment and performance
of the respective Secured Obligations, a security interest in all of the
Borrower's right, title and interest, whether now owned or hereafter acquired
and wherever located, in, to and under all accounts, contract rights, general
intangibles, chattel paper, instruments, documents, money, cash, deposit
accounts, certificates of deposit, goods, letters of credit, advices of credit
securities investment property, financial assets, security entitlements or
instruments consisting of, arising from or relating to any of the following
property: (i) the Receivables; (ii) the Other Conveyed Property related thereto;
(iii) the Asset Backed Securities (including, in the case of Asset Backed
Securities in certificated form, each certificate evidencing the Asset Backed
Securities); (iv) the rights and benefits of the Borrower under (x) the Sale and
Servicing Agreement, (y) each Receivables Sale Agreement and ABS Sale Agreement
entered into between the relevant Seller and the Borrower pursuant to the Sale
and Servicing Agreement, including, but not limited to, the right to cause the
relevant Seller to repurchase Receivables or Asset Backed Securities, as the
case may be, from the Borrower under certain circumstances, and (z) the ABS
Documents relating to the Asset Backed Securities; (v) all amounts required to
be deposited, or delivered to the Administrative Agent for deposit, from time to
time to the Collection Account; (vi) the Pledged Accounts and all funds on
deposit from time to time in
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Pledged Accounts and all property credited thereto, and in all investments and
proceeds thereof (including all income thereon); (vii) all funds on deposit from
time to time in the Lockbox Account and all property credited thereto and all
rights and benefits of the Borrower under the Lockbox Agreement; (viii) all
amounts owing to the Borrower and all other rights of the Borrower under any
Hedge Contract; and (ix) all present and future claims, demands, causes and
choses in action in respect of any or all of the foregoing and all payments on
or under and all proceeds of every kind and nature whatsoever in respect of any
and all of the foregoing, including all proceeds of the conversion, voluntary or
involuntary, into cash or other liquid property, all cash proceeds, accounts,
accounts receivables, notes, drafts, acceptances, chattel paper, checks, deposit
accounts, insurance proceeds, condemnation awards, rights to payment of any and
every kind and other forms of obligations and receivables, investment property,
financial assets, security entitlements or instruments and other property which
at any time constitute all or part of or are included in the proceeds of any of
the foregoing (collectively, the "Collateral").
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The Administrative Agent, for the benefit of the Secured Parties,
acknowledges such grant of a security interest.
(b) The Borrower hereby assigns to the Administrative Agent for the benefit
of the Secured Parties all of its rights under the Sale and Servicing Agreement
(but not its obligations).
(c) In order to effect the provisions and purposes of this Agreement,
including for the purpose of perfecting the security interests granted
hereunder, the Borrower represents and warrants that it has, on or prior to or
on the date of this Agreement, executed and filed or caused to be filed
appropriate UCC-1 financing statements in Delaware and has taken all other
action necessary to ensure that the Administrative Agent, as agent for the
Secured Parties, has a first priority perfected security interest in all of the
Collateral that can be perfected by the filing of a financing statement.
Furthermore, on and as of each Receivables Sale Date, the Borrower hereby
represents and warrants that the Borrower and the relevant Seller have taken all
other steps necessary under all applicable law in order to cause to exist in
favor of the Administrative Agent, on behalf of the Secured Parties, a valid,
subsisting and enforceable first priority perfected security interest in the
Borrower's first priority perfected security interest in each Asset Backed
Security and in the Financed Vehicle securing each Receivable pledged hereunder
on such date (and the proceeds of such Financed Vehicle) (provided, however,
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that, prior to (X) the occurrence of a Servicer Termination Event, a Potential
Servicer Termination Event, a Termination Event or a Potential Termination Event
and the request by the Admin-
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istrative Agent or, (Y) at any time, the request by the Required Lending Groups,
for the recordation of the Borrower's and/or the Administrative Agent's lien on
such Financed Vehicle's certificate of title, no such recordation shall be
required), and such security interest is and shall be prior to all other liens
upon and security interests in such Financed Vehicle that now exist or may
hereafter arise or be created.
Section 2.2 No Transfer of Duties. The security interests granted hereby
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are granted as security only and shall not (i) transfer or in any way affect or
modify, or relieve the Borrower from, any obligation to perform or satisfy any
term, covenant, condition or agreement to be performed or satisfied by the
Borrower under or in connection with this Agreement or any other Basic Agreement
to which it is a party or (ii) impose any obligation on any of the Secured
Parties or the Administrative Agent to perform or observe any such term,
covenant, condition or agreement or impose any liability on any of the Secured
Parties or the Administrative Agent for any act or omission on its part relative
thereto or for any breach of any representation or warranty on its part
contained therein or made in connection therewith except, in each case, to the
extent specifically provided herein and in the other Basic Agreements.
Section 2.3 Termination and Release of Rights.
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(a) On each VFN Prepayment Date, the Administrative Agent shall, at the
expense of the Borrower: execute such instruments of release with respect to the
Prepayment Related Collateral, in recordable form if necessary, in favor of the
Borrower as the Borrower may reasonably request; deliver any Prepayment Related
Collateral in its possession to the Borrower; and otherwise take such actions,
and/or cause or permit the Servicer to take such actions, at the Borrower's
expense, as are necessary and appropriate to release the lien of this Agreement
and release and deliver to the Borrower the Prepayment Related Collateral.
(b) On the Termination Date, except as otherwise provided herein, the
rights, remedies, powers, duties, authority and obligations conferred upon the
Administrative Agent and each Secured Party pursuant to this Agreement shall
terminate and be of no further force and effect and all rights, remedies,
powers, duties, authority and obligations of the Administrative Agent and each
Secured Party with respect to the Collateral shall be automatically released. On
the Termination Date, the Administrative Agent and each Secured Party agrees, at
the expense of the Borrower, to execute such instruments of release, in
recordable form if necessary, in favor of the Borrower as the Borrower may
reasonably request, to deliver any Collateral in its possession to the Borrower,
and otherwise to take such actions,
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and/or cause or permit the Servicer to take such actions, as are necessary and
appropriate to release the lien of this Agreement and release and deliver to the
Borrower the Collateral.
(c) To the extent, if any, otherwise required of the Borrower by the terms
of any Basic Agreement and permitted by the terms hereof and thereof, the
Administrative Agent may, and otherwise upon the prior written instructions of a
respective Authorized Officer of each Funding Agent that is a member of the
Required Lending Groups, the Administrative Agent shall, at the expense of the
Borrower take (in each case) such steps as may be necessary, or as the Borrower,
in a manner consistent with the Basic Agreements, may reasonably request, to
release the interests of the Secured Parties in any items of the Collateral,
including but not limited to redelivering and reassigning to the Borrower any
releases necessary to permit the Borrower to transfer its interest in such items
of the Collateral in accordance with the terms of the Basic Agreements.
(d) No more than twice per month, the Administrative Agent shall, at the
Borrower's request and at the expense of the Borrower: execute such instruments
of release with respect to Receivables or Asset Backed Securities that are not
part of the Pool Balance, in recordable form if necessary in favor of the
Borrower as the Borrower may request; deliver any related Collateral in its
possession to the Borrower; and otherwise take such actions, and/or cause the
Servicer to take such action, at the Borrower's expense, as are necessary or
appropriate to release the lien of this Agreement and release and deliver to the
Borrower the related Collateral.
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ARTICLE III
THE ADMINISTRATIVE AGENT
Section 3.1 Appointment and Powers. The Secured Parties hereby appoint The
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Chase Manhattan Bank as the Administrative Agent, and The Chase Manhattan Bank
has accepted such appointment and has agreed to act as Administrative Agent with
respect to the Collateral for the Secured Parties and to perform the other
duties of the Administrative Agent in accordance with the provisions of this
Agreement and the other Basic Agreements.
Section 3.2 Performance of Duties. The Administrative Agent shall have no
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duties or responsibilities except those expressly set forth in this Agreement
and the other Basic Agreements to which the Administrative Agent is a party or
as directed by the Required Lending Groups in accordance with this Agreement.
The Administrative Agent shall not be required to take any discretionary actions
hereunder except at the written direction and with the indemnification of the
Required Lending Groups.
Section 3.3 Limitation on Liability. Neither the Administrative Agent nor
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any of its directors, officers or employees, shall be liable for any action
taken or omitted to be taken by it or them hereunder, or in connection herewith,
except that the Administrative Agent shall be liable for its gross negligence,
bad faith or willful misconduct; nor shall the Administrative Agent be
responsible for the validity, effectiveness, value, sufficiency or
enforceability against any Seller, the Servicer or the Borrower of this
Agreement or any of the Collateral (or any part thereof). Notwithstanding any
term or provision of this Agreement, the Administrative Agent shall incur no
liability to any Seller, the Servicer, the Borrower, the Funding Agents or the
Secured Parties for any action taken or omitted by the Administrative Agent in
connection with the Collateral, except for the gross negligence, bad faith or
willful misconduct on the part of the Administrative Agent, and shall incur no
liability to any Seller, the Servicer, the Borrower, the Funding Agents or the
Secured Parties except for gross negligence, bad faith or willful misconduct in
carrying out its duties. Subject to Section 3.4, the Administrative Agent shall
be protected and shall incur no liability to any such party in relying upon the
genuineness of any notice, demand, certificate, signature, instrument or other
document reasonably believed by the Administrative Agent to be genuine and to
have been duly executed by the appropriate signatory, and (absent actual
knowledge to the contrary) the Administrative Agent shall not be required to
make any independent investigation with respect thereto. The Administrative
Agent shall at all times be free
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independently to establish to its reasonable satisfaction, but shall have no
duty to independently verify, the existence or nonexistence of facts that are a
condition to the exercise or enforcement of any right or remedy hereunder or
under any of the other Basic Agreements. The Administrative Agent may consult
with counsel, and shall not be liable for any action taken or omitted to be
taken by it hereunder in good faith and in accordance with the advice of such
counsel. The Administrative Agent shall not be under any obligation to exercise
any of the remedial rights or powers vested in it by this Agreement or to follow
any direction from the Required Lending Groups or any Secured Party, unless it
shall have received reasonable security or indemnity satisfactory to the
Administrative Agent against the costs, expenses and liabilities which might be
incurred by it.
Section 3.4 Indemnification. The Borrower shall indemnify the
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Administrative Agent, its directors, officers, employees and agents for, and
hold the Administrative Agent, its directors, officers, employees and agents
harmless against, any loss, liability or expense (including the costs and
expenses of defending against any claim of liability) arising out of or in
connection with the Administrative Agent's acting as Administrative Agent
hereunder, except such loss, liability or expense as shall result from the gross
negligence, bad faith or willful misconduct of the Administrative Agent or its
officers or agents. The obligation of the Borrower under this Section 3.4 shall
survive the termination of this Agreement and the resignation or removal of the
Administrative Agent.
Section 3.5 Compensation and Reimbursement. The Borrower agrees for the
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benefit of the Secured Parties and as part of the Secured Obligations (a) to pay
to the Administrative Agent, from time to time, reasonable compensation for all
services rendered by it hereunder as set forth in the Fee Letter (which
compensation shall not be limited by any provision of law in regard to the
compensation of a collateral trustee); and (b) to reimburse the Administrative
Agent upon its request for all reasonable expenses, disbursements and advances
incurred or made by the Administrative Agent in accordance with any provision
of, or carrying out its duties and obligations under, this Agreement (including
the reasonable compensation and fees and the expenses and disbursements of its
agents, any independent certified public accountants and independent counsel),
except any expense, disbursement or advances as may be attributable to gross
negligence, bad faith or willful misconduct on the part of the Administrative
Agent.
Section 3.6 Waiver of Setoffs. The Administrative Agent hereby expressly
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waives any and all rights of setoff that the Administrative Agent may otherwise
at any time have under applicable law with respect to any Pledged Account
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and agrees that amounts in the Pledged Accounts shall at all times be held and
applied solely in accordance with the provisions hereof and of the other Basic
Agreements.
Section 3.7 Control by the Required Lending Groups. To the extent the
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Administrative Agent is entitled to consent to or withhold its consent to any
waiver or amendment of this Agreement or the other Basic Agreements in
accordance with the terms hereof or thereof or otherwise take or omit to take
action upon the occurrence of a Servicer Termination Event, a Potential Servicer
Termination Event, Termination Event or Potential Termination Event, the
Administrative Agent shall (a) give prompt notice to the Funding Agents of any
such waiver, amendment, Servicer Termination Event, Potential Servicer
Termination Event, Termination Event or Potential Termination Event of which it
is aware and (b) take such action with respect to such waiver, amendment,
Servicer Termination Event, Potential Servicer Termination Event, Termination
Event or Potential Termination Event as shall be directed by the Funding Agents
of all Lending Groups (unless the direction of the Required Lending Groups is
expressly required with respect to a particular provision).
Section 3.8 Successor Administrative Agent. The Administrative Agent may,
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upon 15 days' notice to each Funding Agent (with a copy to the Sellers), and the
Administrative Agent will, at the direction of the Required Lending Groups,
resign as Administrative Agent; provided, in either case, that such resignation
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shall not become effective until a successor Administrative Agent has been
appointed hereunder in accordance with the next sentence. If the Administrative
Agent shall resign as Administrative Agent under this Agreement, then all
Lending Groups shall appoint from among the APA Banks and Funding Agents a
successor agent, whereupon such successor agent shall succeed to the rights,
powers and duties of the Administrative Agent, and the term "Administrative
Agent" shall mean such successor agent, effective upon its acceptance of such
appointment and its delivery of a duly executed counterpart of this Agreement
and an acknowledgment of such appointment to each Funding Agent, and the former
Administrative Agent's rights, powers and duties as Administrative Agent shall
be terminated, without any other or further act or deed on the part of such
former Administrative Agent or any of the parties to this Agreement. After the
retiring Administrative Agent's resignation hereunder as Administrative Agent,
the provisions of this Article III shall inure to its benefit as to any actions
taken or omitted to be taken by it while it was Administrative Agent under this
Agreement.
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The resigning Administrative Agent shall be entitled to compensation
accrued up to the date of resignation. The resigning Administrative Agent shall
be liable (under the terms hereof) for its actions or inaction prior to the
effective date of resignation.
Section 3.9 Notices to Funding Agents. The Administrative Agent shall
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promptly (and in any case no later than five (5) Business Days from receipt)
forward to the Funding Agents copies of any report, certificate or other
document delivered by the Borrower, the Servicer or any Seller to the
Administrative Agent under the Basic Agreements.
ARTICLE IV
REPRESENTATIONS, WARRANTIES AND COVENANTS
OF THE BORROWER
Section 4.1 Representations and Warranties of the Borrower. The Borrower
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represents and warrants to the Administrative Agent, the Funding Agents and the
Secured Parties as of the date hereof, the Effective Date and each Funding Date
that:
(a) Organization and Good Standing. The Borrower has been duly organized
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and is validly existing as a business trust under the laws of the State of
Delaware, with power and authority to own its properties and to conduct its
business as such properties are currently owned and such business is currently
conducted. The Borrower had at all relevant times and now has, power, authority
and legal right to acquire and own the Conveyed Property, Conveyed Securities
and the Other Conveyed Property, and to grant to the Administrative Agent a
security interest in the Collateral and to enter into and perform its
obligations under this Agreement.
(b) Due Qualification; Power and Authority; No Violation. The Borrower is
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duly qualified to do business as a foreign entity in good standing, and has
obtained all necessary licenses and approvals, in all jurisdictions in which the
ownership or lease of its property or the conduct of its business requires such
qualification. The Borrower has the power and authority to execute and deliver
this Agreement and the other Basic Agreements to which it is a party and to
carry out its terms and their terms, respectively; the Borrower has full power
and authority to grant to the Administrative Agent, for the benefit of the
Secured Parties, a perfected first priority security interest in the Collateral
and has duly authorized such grant by
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all necessary trust action; and the execution, delivery and performance of this
Agreement and the other Basic Agreements to which it is a party have been duly
authorized by the Borrower by all necessary corporate action. The Trustee is
duly authorized to execute for and on behalf of the Borrower this Agreement and
the other Basic Agreements to which the Borrower is a party. The execution,
delivery and performance by the Borrower of this Agreement and the other Basic
Agreements to which it is a party require no action by or in respect of, or
filing with, any governmental body, agency or official, and do not contravene,
or constitute a default under, any provision of applicable law or regulation or
of the Trust Agreement or of any agreement, judgment, injunction, order, decree
or other instrument binding upon the Borrower or result in the creation or
imposition of any Lien on assets of the Borrower (other than the Lien of this
Agreement), or require the consent or approval of, or the filing of any notice
or other documentation with, any governmental authority or other Person. The
Borrower has not entered into any other Agreements other than the Basic
Agreements and agreements necessary for the transactions contemplated thereby.
(c) Binding Effect. Each of this Agreement and the other Basic Agreements
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to which it is a party constitutes the legal, valid and binding obligation of
the Borrower, enforceable against the Borrower in accordance with its terms,
subject to applicable bankruptcy, insolvency, moratorium or other similar laws
affecting the rights of creditors.
(d) Accuracy of Information. All information heretofore furnished by the
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Borrower to the Administrative Agent, the Funding Agents and the Secured Parties
for purposes of, or in connection with, this Agreement or any transaction
contemplated hereby is, and all such information hereafter furnished by the
Borrower to the Administrative Agent and the Secured Parties will be, true and
accurate in every material respect, on the date such information is stated or
certified.
(e) Tax Status. All tax returns (Federal, state and local) required to be
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filed with respect to the Borrower have been filed, and there has been paid or
adequate provision made for the payment of all taxes, assessments and other
governmental charges in respect of the Borrower.
(f) Action, Suits. There are no actions, suits or proceedings pending or
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threatened against or affecting the Borrower or its properties, in or before any
court, arbitrator or other body, which may have a material adverse effect on the
Borrower's ability to perform its obligations hereunder or under the other Basic
Agreements.
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(g) Use of Proceeds. The proceeds of any Funding will be used by the
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Borrower to acquire the Receivables, the Asset Backed Securities and Other
Conveyed Property related to the Receivables and Asset-Backed Securities from
the Sellers pursuant to the Sale and Servicing Agreement.
(h) Place of Business. The chief place of business and chief executive
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office of the Borrower are located at the Corporate Trust Office.
(i) Merger and Consolidation. The Borrower has not changed its name, merged
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with or into or been consolidated with any other entity or been the subject of
any proceeding under ▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ Code (Bankruptcy).
(j) Solvency. The Borrower is not insolvent and will not be rendered
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insolvent immediately following the consummation on the Effective Date and on
any Funding Date of the transactions contemplated by this Agreement and the
other Basic Agreements, including (but not limited to) the pledge by the
Borrower to the Administrative Agent of the Collateral in accordance with this
Agreement.
(k) No Termination Event. After giving effect to each Funding, no Potential
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Termination Event or Termination Event exists.
(l) Compliance. The Borrower has complied in all material respects with all
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Requirements of Law in respect of the conduct of its business and ownership of
its property.
(m) Not an Investment Company. The Borrower is not an "investment company"
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within the meaning of the Investment Company Act of 1940, as amended, or is
exempt from all provisions of such Act.
(n) ERISA. The Borrower is in compliance in all material respects with
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ERISA, and no lien in favor of the Pension Benefit Guaranty Corporation on any
of the Receivables or Other Conveyed Property shall exist.
(o) Ownership of the Borrower. One hundred percent (100%) of the
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outstanding beneficial interest in the Borrower is and will be directly owned
(both beneficially and of record) by two holders and such holders shall not
include any Person other than the Primary Seller and the Secondary Seller. All
such certificates are and will be validly issued, and there are no options,
warrants or other rights to acquire such certificates of the Borrower.
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(p) No Material Adverse Change. Since June 30, 2000, and in the case of the
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Borrower, as of the date of its formation, there has been no material adverse
change in the business, assets, operations, prospects or conditions (financial
or otherwise) of the Sellers, or the Servicer, either individually or taken as a
whole.
(q) Characteristics of Receivables and Asset Backed Securities. Each of the
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statements listed on Schedules B and C of the Sale and Servicing Agreement is
true and correct.
Any document, instrument, certificate or notice delivered to the
Administrative Agent or the Secured Parties by, or on behalf of, the Borrower or
its Affiliates hereunder or under the other Basic Agreements shall be deemed a
representation and warranty of the contents thereof by the Borrower.
The representations and warranties set forth in this Section 4.1 shall
survive the pledge and assignment of the Collateral to the Administrative Agent
for the benefit of the Secured Parties. Upon discovery by the Borrower, the
Secured Parties or the Administrative Agent of a breach of any of the foregoing
representations and warranties, the party discovering such breach shall give
prompt written notice to the others.
Section 4.2 Covenants of the Borrower. The Borrower hereby covenants with
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the Administrative Agent and the Secured Parties that, for so long as this
Agreement shall be in effect:
(a) Preservation of Collateral. Subject to the rights, powers and
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authorities granted to the Administrative Agent and the Secured Parties in this
Agreement, the Borrower shall take such action as is necessary and proper with
respect to the Collateral in order to preserve and maintain such Collateral and
to cause (subject to the rights of the Secured Parties) the Administrative Agent
to perform its obligations with respect to such Collateral as provided herein.
The Borrower will do, execute, acknowledge and deliver, or cause to be done,
executed, acknowledged and delivered, such instruments of transfer or take such
other steps or actions as may be necessary, or required by the Required Lending
Groups, to perfect the security interests granted hereunder in the Collateral,
to ensure that such security interests rank prior to all other Liens and to
preserve the priority of such security interests and the validity and
enforceability thereof. Upon any delivery or substitution of Collateral, the
Borrower shall be obligated to execute such documents and perform such actions
as are necessary to create in the Administrative Agent for the
12
benefit of the Secured Parties a valid first Lien on, and valid and perfected
first priority security interest in, the Collateral so delivered and to deliver
such Collateral to the Administrative Agent, free and clear of any other Lien,
together with satisfactory assurances thereof, and to pay any reasonable costs
incurred by any of the Secured Parties or the Administrative Agent (including
its agents) or otherwise in connection with such delivery. The Borrower will not
take any action to cause the Collateral or any portion thereof to be an
instrument (as such term is defined in the Relevant UCC).
(b) Notices. In the event that the Borrower acquires knowledge of the
-------
occurrence and continuance of any Termination Event or Potential Termination
Event under any of the Basic Agreements, the Borrower shall immediately give
notice thereof to the Administrative Agent and the Funding Agents. The Funding
Agents shall immediately forward such notices to the Secured Parties.
(c) Waiver of Stay or Extension Laws; Marshalling of Assets. To the fullest
-------------------------------------------------------
extent permitted by applicable law, the Borrower will not at any time insist
upon, plead, or in any manner whatsoever claim or take the benefit or advantage
of, any appraisement, valuation, stay, extension or redemption law wherever
enacted, now or at any time hereafter in force, in order to prevent or hinder
the enforcement of this Agreement or any absolute sale of the Collateral or any
part thereof, or the possession thereof by any purchaser at any sale under
Article VI of this Agreement; and the Borrower, to the fullest extent permitted
by applicable law, for itself and all who may claim under it, hereby waives the
benefit of all such laws, and covenants that it will not hinder, delay or impede
the execution of any power herein granted to the Administrative Agent, but will
suffer and permit the execution of every such power as though no such law had
been enacted.
(d) Noninterference, Etc. The Borrower shall not (i) except to the extent
--------------------
expressly permitted or contemplated by Section 5.2 of the Sale and Servicing
Agreement, waive or alter, or permit to be waived or altered any of its rights
under the Collateral (or any agreement or instrument relating thereto) without
the prior written consent of the Administrative Agent (acting at the direction
of the Required Lending Groups); or (ii) fail to pay any tax, assessment, charge
or fee levied or assessed against the Collateral, or to defend any action, if
such failure to pay or defend may adversely affect the priority or
enforceability of the Borrower's right, title or interest in and to the
Collateral or the Administrative Agent's lien on, and security interest in, the
Collateral for the benefit of the Secured Parties; or (iii) take any action, or
fail to take any action, if such action or failure to take action will interfere
with the enforcement of any rights under the Basic Agreements.
13
(e) Change in Name, Structure, etc. The Borrower shall not change its name,
------------------------------
identity or corporate structure unless it shall have given the Administrative
Agent at least 30 days' prior written notice thereof, shall have effected any
necessary or appropriate filings of financing statements or amendments thereto,
and shall have delivered to the Administrative Agent an Opinion of Counsel
either (a) stating that, in the opinion of such counsel, such action has been
taken with respect to the execution and filing of any amendments to previously
recorded financing statements and continuation statements and other actions as
are necessary to perfect, maintain and protect the lien and security interest of
the Administrative Agent (and the priority thereof), on behalf of the Secured
Parties, with respect to such Collateral and reciting the details of such
action, or (b) stating that, in the opinion of such counsel, no such action is
necessary to maintain such perfected lien and security interest.
(f) Relocation of the Borrower. The Borrower shall not change its chief
--------------------------
executive office unless it gives the Administrative Agent at least 30 days'
prior written notice thereof. If the Borrower relocates its chief executive
office or principal place of business from the Corporate Trust Office, the
Borrower shall effect whatever appropriate recordations and filings are
necessary and shall provide an Opinion of Counsel to the Administrative Agent,
on behalf of the Required Lending Groups, to the effect that, upon the recording
of any necessary assignments or amendments to previously-recorded assignments
and filing of any necessary amendments to the previously filed financing or
continuation statements or upon the filing of one or more specified new
financing statements, and the taking of such other actions as may be specified
in such opinion, the security interests in the Collateral shall remain, after
such relocation, valid and perfected.
(g) Limitations on Activities. The Borrower shall not, without the prior
-------------------------
written consent of the Administrative Agent (acting at the direction of all
Lending Groups):
(i) engage in any business or activity other than those set forth in
Section 2.3 of the Trust Agreement;
(ii) incur any indebtedness, assume or guaranty any indebtedness of
any other entity, other than any indebtedness to either Seller thereof
incurred in connection with the acquisition of Receivables and Other
Conveyed Property, which indebtedness shall be subordinated as set forth in
the Receivables Sale Agreement, or engage in any transactions with any
Affiliates, except as contemplated
14
under this Agreement and the other Basic Agreements (provided that this
--------
clause shall not be deemed to prohibit the sale of Receivables, on
arm's-length terms, to an Affiliate of the Borrower in connection with an
Optional Prepayment pursuant to this Agreement; provided further that no
-------- -------
such sales shall be permitted to be made to AFS unless such sale is in
connection with a public asset-backed transaction);
(iii) institute proceedings to be adjudicated bankrupt or insolvent,
or consent to the institution of bankruptcy or insolvency proceedings
against it, or file a petition seeking or consent to reorganization or
relief under any applicable federal or state law relating to bankruptcy, or
consent to the appointment of a receiver, liquidator, assignee, trustee,
sequestrator (or other similar official) of the trust or a substantial part
of its property, or make any assignment for the benefit of creditors, or
admit in writing its inability to pay its debts generally as they become
due, or take any action in furtherance of any such action;
(iv) fail to (A) to the extent the Borrower's office is located in the
offices of either Seller or any Affiliate of either Seller, pay fair market
rent for its executive office space located in the offices of either Seller
or any Affiliate of either Seller, (B) maintain the Borrower's books,
financial statements, accounting records and other corporate documents and
records separate from those of the Sellers or any other entity, (C) not
commingle the Borrower's assets with those of the Sellers or any other
entity, (D) act solely in its name and through its own authorized officers
and agents, (E) make investments directly or by brokers engaged and paid by
the Borrower or its agents (provided that if any such agent is an Affiliate
--------
of the Borrower, it shall be compensated at a fair market rate for its
services), (F) separately manage the Borrower's liabilities from those of
the Sellers or any Affiliates of the Sellers and pay its own liabilities,
including all administrative expenses, from its own separate assets, and
(G) pay from the Borrower's own assets all obligations and indebtedness of
any kind incurred by the Borrower;
(v) amend, alter, change or repeal the Trust Agreement as in effect on
the date hereof;
15
(vi) make any distribution to its equity holders, if: (A) any
Termination Event or Potential Termination Event has then occurred and
remains continuing or would result from such payment or other distribution;
or (B), after giving effect thereto, the Borrower's net worth, determined
in accordance with GAAP (but exclusive of funds that constitute the
Collection Account Reserve and exclusive of the value of the Hedge
Contract(s)), would be less than the greater of (x) five percent (5%) of
the VFN Balance and (y) five percent (5%) of the largest VFN Balance that
had at any time during the Facility Term been outstanding; or (C) such
distribution is Receivables or Asset Backed Securities and such
distribution is not in connection with a public-asset backed transaction;
or (D) such distribution is Receivables or Asset Backed Securities which
are not included in the Pool Balance; and
(vii) merge with or into or be consolidated with any other entity.
(h) Financial Reporting. The Borrower will maintain for itself a system
-------------------
of accounting established and administered in accordance with GAAP, and will
furnish to the Administrative Agent for the benefit of the Secured Parties:
(i) Quarterly Reporting. Within forty-five (45) days after the
-------------------
close of the first three quarterly periods of each of the Borrower's fiscal
years, for AmeriCredit Corp., consolidated unaudited balance sheets (which
shall include those of the Borrower and the Servicer) as at the close of
such period and consolidated related statements of operations and cash
flows for the period from the beginning of such fiscal year to the end of
such quarter, all certified by an Authorized Officer of AmeriCredit Corp.
(ii) Annual Reporting. Within ninety (90) days after the close of
----------------
the final quarterly period of each of the Borrower's fiscal years, for
AmeriCredit Corp., consolidated audited balance sheets reported on by the
Independent Accountants (which shall include those of the Borrower and the
Servicer) as at the close of each such fiscal year and consolidated related
statements of operations and cash flows reported on by the Independent
Accountants for the period from the beginning of such fiscal year to the
end of such fiscal year, all certified by an Authorized Officer of
AmeriCredit Corp.
16
(iii) Compliance Certificate. Together with the financial statements
----------------------
required hereunder, a compliance certificate signed by an Authorized
Officer of the Trustee stating that (x) the attached financial statements
have been prepared in accordance with generally accepted accounting
principles and accurately reflect the financial condition of the Borrower
and (y) to the best of such Person's knowledge, no Termination Event,
Potential Termination Event, Servicer Termination Event or Potential
Servicer Termination Event exists, or if any Termination Event, Potential
Termination Event, Potential Servicer Termination Event or Servicer
Termination Event exists, stating the nature and status thereof.
(i) Separateness. The Borrower shall take all reasonable steps
------------
(including, without limitation, all steps that the Administrative Agent may from
time to time reasonably request) to maintain the Borrower's identity as a
separate legal entity from AFS or any of its Affiliates and to make it manifest
to third parties that the Borrower is an entity with assets and liabilities
distinct from those of AFS and each other Affiliate thereof. Without limiting
the generality of the foregoing, the Borrower shall (1) maintain appropriate
books and records, (2) cause its financial statements to be prepared in
accordance with generally accepted accounting principles in a manner that
indicates the separate existence of the Borrower and its assets and liabilities,
(3) pay all its liabilities when due, (4) not assume the liabilities of either
Seller or any Affiliate of either Seller, (5) not guarantee the liabilities of
either Seller or any Affiliate of either Seller and (6) comply with (and cause
the Sellers and the Servicer to comply with) all assumptions upon which counsel
to the Borrower is relying in rendering its true sale and nonconsolidation
opinions with respect to the Borrower and the Sellers.
(j) Access to Records. The Borrower shall (but in any event, prior to a
-----------------
Termination Event, Potential Termination Event, Servicer Termination Event or
Potential Servicer Termination Event on no more than four occasions per year),
permit only the Secured Parties and the Administrative Agent or their duly
authorized representatives, attorneys or auditors to inspect the books and
records maintained by the Borrower pursuant hereto at such times as the Secured
Parties or the Administrative Agent may reasonably request.
17
ARTICLE V
REQUIRED LENDING GROUPS; INTERCREDITOR PROVISIONS
Section 5.1 Authority of Required Lending Groups. The Borrower hereby
------------------------------------
irrevocably appoints the Administrative Agent for the benefit of the Secured
Parties its true and lawful attorney, with full power of substitution, in the
name of the Borrower, the Secured Parties or otherwise, but at the expense of
the Borrower, to the extent permitted by law to exercise in its sole and
absolute discretion, at any time and from time to time while any Termination
Event has occurred and is continuing, any or all of the rights and powers with
respect to all or any of the Collateral as are specified or referred to in
Article VI hereof.
Section 5.2 Rights of Secured Parties. Each Secured Party that from time to
-------------------------
time is not a part of the Required Lending Groups expressly agrees that it shall
not assert any right that it may otherwise have, as a Secured Party with respect
to the Collateral, to direct the maintenance, sale or other disposition of the
Collateral or any portion thereof, notwithstanding the occurrence and
continuation of any Termination Event or any non-performance by the Borrower of
any obligation owed to such Secured Party hereunder or under any other Basic
Agreement, and each party hereto agrees that the Required Lending Groups (or the
Administrative Agent, as directed by the Required Lending Groups) shall be the
only Persons entitled to assert and exercise such rights.
Section 5.3 Degree of Care. Notwithstanding any term or provision of this
--------------
Agreement, no Secured Party (including any Secured Party that is a member of the
Required Lending Groups) shall incur any liability to AmeriCredit Corp., the
Sellers, the Servicer or the Borrower for any action taken or omitted by any
Secured Party (including any Secured Party that is a member of the Required
Lending Groups) in connection with the Collateral and, further, shall incur no
liability to any other Secured Party (including any Secured Party that is part
of the Required Lending Groups); provided, however, that the foregoing shall not
-------- -------
be deemed to relieve any Secured Party of liability for its own gross
negligence, bad faith or willful misconduct. Each Secured Party (including any
Secured Party that is a member of the Required Lending Groups) shall be
protected and shall incur no liability to any such party in relying upon the
accuracy, acting in reliance upon the contents and assuming the genuineness of
any notice, demand, certificate, signature, instrument or other document
believed by such Secured Party to be genuine and to have been duly executed by
the appropriate signatory, and (absent manifest error or actual knowledge to the
contrary), no such Secured Party shall be required to make
18
any independent investigation with respect thereto. Each Secured Party shall, at
all times, be free independently to establish to its reasonable satisfaction the
existence or nonexistence, as the case may be, of any fact the existence or
nonexistence of which shall be a condition to the exercise or enforcement of any
right or remedy under this Agreement or any of the other Basic Agreements.
19
ARTICLE VI
TERMINATION EVENTS; REMEDIES
Section 6.1 Termination Events; Remedies. (a) If a Termination Event has
----------------------------
occurred and is continuing, then, and in any such event, (A) if such Termination
Event is one, only with respect to the Borrower, specified in clause (v) of the
definition of Termination Event, the commitments of the APA Banks to the
Borrower shall automatically terminate and the VFN Balance (together with
accrued and unpaid interest thereon and all fees and other obligations of the
Borrower accrued under and in connection with the Basic Agreements) shall
automatically become due and payable, without presentment, demand, protest or
other notice of any kind, all of which are hereby waived by the Borrower, and
(B) in the case of any other Termination Event, the Administrative Agent shall,
at the direction of the Required Lending Groups, by notice to the Borrower, take
either or both of the following actions, at the same or different times: (i)
declare the commitments of the APA Banks to the Borrower to be terminated, and
thereupon the obligations of the APA Banks to make Fundings to the Borrower
shall terminate immediately, and (ii) declare the VFN Balance (together with
accrued and unpaid interest thereon and all fees and other obligations of the
Borrower accrued under and in connection with the Basic Agreements) to be due
and payable, and thereupon such amounts shall be immediately due and payable,
without presentment, demand, protest or other notice of any kind, all of which
are hereby waived by the Borrower. In any of such events, the Administrative
Agent shall, at the direction of the Required Lending Groups, take whatever
action at law or in equity as may appear necessary or desirable in the judgment
of the Required Lending Groups to collect and satisfy all Secured Obligations
(including, but not limited to, foreclosure upon the Collateral and sale or
securitization of the Collateral and all other rights available to secured
parties under applicable law) or to enforce performance and observance of any
obligation, agreement or covenant under any of the Basic Agreements. In addition
to all other rights and remedies granted to the Administrative Agent for the
benefit of the Secured Parties by this Agreement, the other Basic Agreements,
the UCC and other applicable law, rules, or regulations, the Administrative
Agent may with the consent of the Required Lending Groups, and shall upon the
request of the Required Lending Groups, upon the occurrence and during the
continuance of any such Termination Event, exercise any one or more of the
following rights and remedies: (i) foreclose upon or otherwise enforce the
security interests in any or all Collateral in any manner permitted by
applicable law, rules, or regulations or in this Agreement; (ii) notify any or
all Obligors to make payments with respect to Receivables directly to the
Administrative Agent for the benefit of the Secured Parties; (iii) sell or
otherwise dispose of
20
any or all Collateral at one or more public or private sales, for cash or credit
or future delivery, on such terms and in such manner as the Required Lending
Groups may determine; (iv) require the Borrower to assemble the Collateral and
make it available to the Administrative Agent at a place to be designated by the
Administrative Agent; (v) enter onto any property where any Collateral is
located and take possession thereof with or without judicial process; and (vi)
enforce any rights of the Borrower under any Receivable or other agreement to
the extent the Required Lending Groups deems appropriate.
In furtherance of the Administrative Agent's rights hereunder, the Borrower
hereby grants to the Administrative Agent for the benefit of the Secured Parties
an irrevocable, non-exclusive license (exercisable without royalty or other
payment by the Administrative Agent) to use, license or sublicense any patent,
trademark, tradename, copyright or other intellectual property in which the
Borrower now or hereafter has any right, title or interest, together with the
right of access to all media in which any of the foregoing may be recorded or
stored. Notwithstanding the foregoing, the Administrative Agent shall not be
entitled to take any action and the Required Lending Groups shall not be
entitled to give any direction with respect to the Collateral, except to the
extent provided herein and in the Sale and Servicing Agreement or the other
Basic Agreements.
(b) In the event of any sale, collection, conversion or other disposition
into cash of the Collateral, or any part thereof, after deducting any actual
costs and expenses incurred in connection with any such disposition, the
Administrative Agent shall deposit the proceeds thereof into the Collection
Account for distribution on the next succeeding Distribution Date in accordance
with the priorities set forth in Section 6.8 of the Sale and Servicing
Agreement. The Borrower hereby agrees that ten (10) days' notice of any intended
sale or disposition of any Collateral is reasonable.
(c) The Administrative Agent on behalf of the Secured Parties shall be
entitled to obtain from the Borrower all records and documentation in the
possession of the Borrower pertaining to any Collateral. Upon consummation of
any sale pursuant to this Section 6.1, the Required Lending Groups, or the
Administrative Agent acting on behalf of and at the direction of the Required
Lending Groups, shall have the right to assign, transfer, indorse and deliver to
the purchaser or purchasers thereof, free and clear of any Lien, the Collateral,
or any portion thereof or any interest therein, so sold. Each purchaser at any
such sale shall hold the property purchased by it absolutely free and clear from
any claim or right on the part of the Secured Parties or the Borrower; and the
Borrower hereby irrevocably waives all
21
rights of redemption, stay, marshalling of assets or appraisal that it now has
or may at any time in the future have under applicable law or statute now
existing or hereafter enacted.
(d) In addition to the remedies granted in this Agreement and the other
Basic Agreements, if a Termination Event has occurred and is continuing, the
Administrative Agent shall, at the direction of the Required Lending Groups,
take whatever action at law or in equity as may appear necessary or desirable in
the judgment of the Required Lending Groups to collect the amounts then due and
thereafter to become due under this Agreement and any of the other Basic
Agreements (including but not limited to, all rights available to secured
parties under applicable law) or to enforce performance and observance of any
obligation, agreement or covenant under any of the Basic Agreements, including
the exercise of the following powers with respect to the Collateral: (i) to
demand, ▇▇▇ for, collect, receive and give acquittance for any and all monies
due or to become due upon or by virtue thereof, (ii) to settle, compromise,
compound, prosecute or defend any action or proceeding with respect thereto,
(iii) to sell, securitize, transfer, assign or otherwise deal with the same or
the proceeds thereof as fully and effectively as if the Administrative Agent
were the absolute owner thereof, and (iv) to extend the time of payment of any
or all thereof and to make any allowance or other adjustment with respect
thereto. All proceeds of any portion of the Collateral liquidated pursuant to
this Section 6.1 shall be applied as set forth in subsection (b) above.
(e) The Administrative Agent and the Required Lending Groups, as the case
may be, may exercise the powers and rights granted by this Section 6.1, without
notice or demand to the Borrower except as provided in (a) above.
(f) In addition to other remedies granted in this Agreement and the other
Basic Agreements, if a Termination Event has occurred and is continuing, the
Borrower, at the direction of the Administrative Agent (acting at the direction
of the Required Lending Groups) or the Required Lending Groups, shall at its own
expense (or shall cause the Servicer at its own expense pursuant to section 5.5
of the Sale and Servicing Agreement) promptly take all additional steps, if any,
as are necessary to create and maintain perfection of the security interest in
the Financed Vehicle related to each Receivable (and the proceeds of such
Financed Vehicle) on behalf of the Borrower and to create and maintain
perfection of the security interest in the Borrower's security interest in the
Financed Vehicle related to each Receivable (and the proceeds of such Financed
Vehicle) on behalf of the Administrative Agent, for the benefit of the Secured
Parties, including, if required by applicable law, having a
22
notation of the Borrower's and/or the Administrative Agent's respective security
interests recorded on such Financed Vehicle's certificate of title.
Section 6.2 Restoration of Rights and Remedies. If the Administrative Agent
----------------------------------
has instituted any proceeding to enforce any right or remedy under this
Agreement, and such proceeding has been discontinued or abandoned for any
reason, or has been determined adversely to the Administrative Agent, then and
in every such case the Borrower, the Administrative Agent and each of the
Secured Parties shall, subject to any determination in such proceeding, be
restored severally and respectively to their former positions hereunder, and
thereafter all rights and remedies of the Secured Parties shall continue as
though no such proceeding had been instituted.
Section 6.3 No Remedy Exclusive. No right or remedy herein conferred upon
-------------------
or reserved to the Administrative Agent, the Required Lending Groups or any of
the Secured Parties is intended to be exclusive of any other right or remedy,
and every right or remedy shall, to the extent permitted by law, be cumulative
and in addition to every other right and remedy given hereunder or now or
hereafter existing at law, in equity or otherwise and each and every right,
power and remedy whether specifically herein given or otherwise existing may be
exercised by the Required Lending Groups, and the exercise of or the beginning
of the exercise of any right or power or remedy shall not be construed to be a
waiver of the right to exercise at the same time or thereafter any other right,
power or remedy.
23
ARTICLE VII
FUNDINGS; THE VFN
Section 7.1 Loans to Borrower; Funding Procedures; the VFN.
----------------------------------------------
(a) Funding Generally. Upon the terms and subject to the conditions set
-----------------
forth herein, prior to the Commitment Expiry Date, and provided that (i) in the
--------
case of HLS, Victory and Eiffel, no Potential Wind-Down Event or Wind-Down Event
shall have occurred and be continuing and (ii) in the case of APA Banks, no
Termination Event or Potential Termination Event shall have occurred and be
continuing, each of the CP Lenders may, in its sole discretion, and the APA
Banks shall (subject to the terms and conditions specified herein), collectively
make an advance under the terms and conditions hereof (any such advance, a
"Funding" and the first such advance, the "Initial Funding") to the Borrower
------- ---------------
from time to time on or after the Effective Date. Each Funding by a Lending
Group shall be made on a pro rata basis based on such Lending Group's Facility
Limit as a percentage of the aggregate Facility Limit of all Lending Groups
(except for any same day Funding which shall only be made by PARCO as set forth
below); each Funding by an APA Bank in a Lending Group shall be made on a pro
---
rata basis based on such APA Bank's Commitment as a percentage of the aggregate
----
Commitment of all APA Banks in such Lending Group. Amounts advanced by the
Lending Groups on any day in connection with a Funding may include CP Fundings,
Eurodollar Fundings and ABR Fundings or any combination thereof.
To request Fundings hereunder, the Borrower shall notify the Administrative
Agent of such request by telephone (a) in the case of a Eurodollar Funding, not
later than 11:00 A.M. (New York time) three (3) Business Days before the date of
the proposed Funding, (b) in the case of an ABR Funding, not later than 12:30
P.M. (New York Time) on the proposed date of such Funding and (c) in the case of
a CP Funding, (x) not later than 11:00 A.M. (New York time) on the date of the
proposed Funding if same day Funding is requested of PARCO (such request to
include a list of Receivables to be pledged for such same day Funding) or
otherwise (y) not later than 12:30 P.M. (New York time) one (1) Business Day
before the date of the proposed Funding. Each day on which a Funding is made
hereunder shall be a Business Day. Each such telephonic request for a Funding
shall be irrevocable and shall be confirmed promptly by hand delivery or
telecopy to the Administrative Agent of a written funding request (each, a
"Funding Request") in a form approved by the Administrative Agent and signed by
---------------
the Borrower. Each such telephonic and
24
written Funding Request shall specify the following information in compliance
with Section 7.1(b):
(i) the requested Advance Amount (calculated in accordance with the
definition thereof, and which shall be at least $1,000,000 or integral
multiples of $100,000 in excess thereof);
(ii) the date of such Funding, which shall be a Business Day;
(iii) whether such Funding is to be a CP Funding, an ABR Funding or a
Eurodollar Funding (provided that with respect to HLS, Victory and Eiffel
prior to the occurrence of a Wind-Down Event applicable to such CP Lender
(or upon the termination of such Wind-Down Event, if applicable), all
Fundings on behalf of HLS, Victory and Eiffel, as applicable, shall be CP
Fundings);
(iv) in the case of a CP Funding or a Eurodollar Funding, the CP
Funding Period or Eurodollar Funding Period to be applicable thereto, which
shall be a period contemplated by the definition of the term "CP Funding
Period" and "Eurodollar Funding Period", respectively; provided however,
----------------
that the funding period for same day Funding shall be no more than five
Business Days; and
(v) the location and number of the Borrower's account to which funds
are to be disbursed, which shall comply with the requirements of Section
7.1(e).
If no election as to the type of Funding is specified, then the requested
Funding shall be at the discretion of each Funding Agent (with the consent of
the related CP Lender if the related Funding Agent so selects a CP Funding).
Promptly following receipt of a Funding Request in accordance with this Section
7.1(a), each Funding Agent shall promptly advise each Secured Party in its
Lending Group of the details thereof and of the amount of such Secured Party's
loan to be made as part of the requested Funding (if any). Notwithstanding
anything to the contrary in this Section 7.1(a), the Borrower shall be permitted
to request up to two (2) Fundings per calendar week, and up to nine (9) Fundings
per calendar month.
(b) Conditions to Funding. No Secured Party shall have any obligation to
---------------------
advance any funds to the Borrower in connection with any Funding unless, on
25
the date of such Funding, (i) after giving effect to such Funding, the Aggregate
Net Investment plus the Interest Component of all Commercial Paper issued by the
----
CP Lenders to fund the Aggregate Net Investment (it being understood that, for
purposes of determining whether the Interest Component of Commercial Paper may
be paid from the proceeds of Commercial Paper issued on the maturity date of
such Commercial Paper, the amount of such capitalized Interest Component shall
constitute a "Funding") would not exceed the Maximum Facility Limit and, in the
case of a Funding for the acquisition of Asset Backed Securities, after giving
effect to such Funding, the aggregate Net Investment as it relates to Asset
Backed Securities would not exceed the ABS Funding Sub-Limit and in the case of
a same day Funding, after giving effect to such Funding, the sum of all
outstanding same day Fundings, would not exceed the Swing Line Funding Limit
(such same day Funding only to be provided by PARCO); (ii) with respect to each
Lending Group, after giving effect to such Funding, the related Net Investment
of such Lending Group plus the Interest Component of all Commercial Paper issued
----
by the CP Lenders in such Lending Group to fund such Net Investment (it being
understood that, for purposes of determining whether the Interest Component of
Commercial Paper may be paid from the proceeds of Commercial Paper issued on the
maturity date of such Commercial Paper, the amount of such capitalized Interest
Component shall constitute a "Funding") would not exceed the related Facility
Limit and, in the case of a Funding for the acquisition of Asset Backed
Securities after giving effect to such Funding, the related Net Investment as it
relates to Asset Backed Securities would not exceed the ABS Funding Sub-Limit
and, in the case of a same day Funding, after giving effect to such Funding, the
sum of all outstanding same day Fundings would not exceed the Swing Line Funding
Limit (such same day Funding only to be provided by PARCO); (iii) each APA
Bank's pro rata share of such Funding, would not exceed the amount of its unused
--- ----
Commitment (it being understood that, for purposes of determining whether the
Interest Component on Commercial Paper may be paid from the proceeds of
Commercial Paper issued on the maturity date of such Commercial Paper, the
amount of such capitalized Interest Component shall constitute a "Funding");
(iv) the Borrower has provided a Funding Request to the Administrative Agent and
each Funding Agent, which Funding Request shall include the calculations
necessary to satisfy the requirement set forth in clauses (i), (ii) and (iii)
above and shall also include a certification by an authorized officer of the
Trustee on behalf of the Borrower that, to the best of such officer's knowledge,
no event has occurred since the most recent Funding that would have a material
and adverse effect on the Receivables, AmeriCredit Corp., the Sellers, the
Servicer or the Borrower; (v) the Borrower shall have deposited in the
Collection Account, or shall have given irrevocable instructions to the
Administrative Agent to withhold from the proceeds of such Funding and to
deposit in the Collection Account, as the case may be, in each
26
case for allocation to the Collection Account Reserve, an amount equal to the
Collection Account Reserve Shortfall Amount, if any; (vi) the VFN is rated at
least "A2" by ▇▇▇▇▇'▇ and the VFN is rated at least "A" by S&P; (vii) one or
more binding and enforceable Hedge Contracts in an aggregate notional amount
equal to the Aggregate Net Investment (including any Aggregate Net Investment to
be made in connection with such Funding) are in full force and effect in
accordance with the terms of the Sale and Servicing Agreement; (viii) each
representation and warranty of the Borrower herein shall be true and correct
with respect to the Borrower and each Receivable as of the date of such Funding;
(ix) a Potential Wind-Down Event or a Wind-Down Event (each only in the case of
a Funding to be made by HLS, Victory or Eiffel), or a Potential Termination
Event or a Termination Event, shall not have occurred and be continuing; (x) if
the Funding is to be made by a CP Lender through the issuance of Commercial
Paper, such CP Lender has advised the Administrative Agent that, in its sole
discretion, it has elected to make such Funding; (xi) in connection with the
initial Funding following the Effective Date, the conditions precedent set forth
in Section 7.1(g) hereof and Section 3.2 of the Sale and Servicing Agreement
shall be satisfied; and (xii) after giving effect to such Funding, no Pool
Limitation would be exceeded. Any Funding made the same day such Funding is
requested shall be made solely by PARCO, at PARCO's sole discretion, in an
amount not to exceed the Swing Line Funding Limit.
Notwithstanding anything to the contrary set forth in this Agreement, no
APA Bank shall have any obligation to advance funds to the Borrower on any
Funding Date if, on such day, any Termination Event or Potential Termination
Event shall have occurred and be continuing. The Administrative Agent shall
notify each Funding Agent of the receipt and content of any Funding Request by
no later than 2:30 P.M. on the date on which such Funding Request was received
by the Administrative Agent and, in connection therewith, shall advise such
Funding Agent of the portion of such Funding which its related Lending Group is
required to make available to the Borrower; if such notification is provided to
the Funding Agents after 2:30 P.M. on such date, then the Funding Request shall
be deemed to be received on the following Business Day. Each Funding Agent shall
promptly advise the APA Banks in its related Lending Group (by telecopy or by
telephone call promptly confirmed in writing by telecopy) of the receipt and
content of any Funding Request.
The APA Banks' several obligations to provide the Borrower with funds
pursuant to this Article VII shall terminate on the Commitment Expiry Date.
Notwithstanding anything contained in this Section 7.1 or elsewhere in this
Agreement to the contrary, no APA Bank shall be obligated to provide the
Borrower with aggregate funds in connection with a Funding Request in an amount
that would
27
exceed such APA Bank's unused Commitment then in effect, and the failure of any
APA Bank to make its pro rata share of the Funding available to the Borrower
--- ----
(subject to the terms and conditions set forth herein) shall not relieve any
other APA Bank of its obligations hereunder. The obligations of the Lending
Groups hereunder to provide Fundings shall be several and not joint.
(c) Advance Percentage. With respect to any Funding Date, the advance
------------------
percentage with respect to Receivables and Asset Backed Securities (the "Advance
-------
Percentage") to determine the Advance Amount shall be 100% with respect to Asset
----------
Backed Securities, subject to the reserve requirement to be established at or
prior to the initial funding under the ABS Funding Sublimit, as acceptable to
each Lending Group and the Primary Seller, and shall be 89% with respect to
Receivables, subject in the case of Receivables to downward adjustment on such
Funding Date as described below:
(1) if a "Trigger Event" (such term meaning, for purposes of this
Section 7.1(c), (i) a "Trigger Event" as defined in any public asset-backed
transaction, which transaction has been outstanding for twenty-four months
or less from the date hereof or (ii) if applicable, any comparable "spread
capture event" in any automobile receivables transaction conducted by any
Securitization Trust, which transaction has been outstanding for
twenty-four months or less from the date hereof, whether or not defined in
such transaction as a "Trigger Event" and whether or not such transaction
is a public transaction) occurs which continues unremedied for two (2)
monthly reporting periods and is waived by the party or parties entitled to
exercise such waiver under the related transaction documentation, then the
Advance Percentage in effect at the opening of business on such Funding
Date shall be reduced by 2%; provided that if the Trigger Event relates to
--------
a delinquency test failure and occurs after the Pool Factor (as defined in
the related transaction documentation) is below 25%, the Advance Percentage
shall not be so reduced; provided further that if the Advance Percentage
-------- -------
has been reduced as a result of the application of this clause (1), the
Advance Percentage shall remain at such reduced percentage until such time
as the related Trigger Event has been cured for a period of three (3)
consecutive months;
(2) if a Trigger Event occurs, and is not waived by the Person or
Persons entitled to exercise such waiver under the related transaction
documentation, within the twenty-four month period
28
referred to in (1) above for any particular asset-backed transaction
(whether or not such transaction is a public transaction) (and such Trigger
Event shall be deemed unwaived if there is no Person or Persons entitled to
so waive), then the Advance Percentage in effect at the opening of business
on such Funding Date shall be reduced by 6% (without duplication of any
reduction pursuant to clause (1) above); and
(3) if there is an Excess Spread Deficiency (calculated as of the
close of business one (1) Business Day prior to such Funding Date), then
the Advance Percentage shall be reduced by the product of (i) the amount of
such Excess Spread Deficiency (stated as a percentage) multiplied by (ii)
-------------
2.0; provided that if the Advance Percentage has been reduced as a result
--------
of the application of this clause (3), the Advance Percentage shall remain
at such reduced percentage until such time as the Excess Spread Deficiency
has been cured.
(d) Funding Request Irrevocable. The notice of any proposed Funding shall
---------------------------
be irrevocable and binding on the Borrower, and the Borrower shall indemnify the
Secured Parties against any loss or expense incurred by the Secured Parties as
provided in Section 7.6 hereof.
(e) Disbursement of Funds. No later than 3:00 P.M. (New York City time)
---------------------
on the date on which a Funding is to be made, each Secured Party will make
available to the Borrower, in immediately available funds, the amount of the
Funding required to be made by it on such day by remitting the required amount
thereof to an account of the Borrower as designated in the related Funding
Request.
(f) The VFN.
-------
(i) The Borrower's obligation to pay the principal of, and interest
on, all amounts advanced by the Secured Parties pursuant to any Funding
shall be evidenced by a single note of the Borrower (as amended,
supplemented or otherwise modified and in effect from time to time, the
"VFN") which shall (1) be dated the date hereof; (2) be in the stated
---
principal amount equal to the Maximum Facility Limit (as reflected from
time to time on the grid attached thereto); (3) bear interest as provided
therein; (4) be payable to the order of the Administrative Agent for the
account of the Secured Parties (in proportion to the pro rata shares of the
Lending Groups based upon their respective
29
aggregate Net Investments) and mature on the Distribution Date occurring in
the calendar month seventy-eight (78) months following the Commitment
Expiry Date (unless otherwise accelerated pursuant to the terms of the
Basic Agreements); provided however that the principal amount of any same
----------------
day Funding shall be due not later than the fifth Business Day immediately
following such same day Funding date; (5) be entitled to the benefits of
this Agreement and the other Basic Agreements; and (6) be substantially in
the form of Exhibit A to this Agreement, with blanks appropriately
completed in conformity herewith. In consultation with the Funding Agents,
the Administrative Agent shall, and is hereby authorized to, make a
notation on the schedule attached to the VFN of the date and the amount of
each Funding and the date and amount of the payment of principal thereon,
and prior to any transfer of the VFN, the Administrative Agent, on behalf
of the Secured Parties, shall indorse the outstanding principal amount of
the VFN on the schedule attached thereto. The entries made by the
Administrative Agent pursuant to the preceding sentence shall be prima
-----
facie evidence of the existence and amounts of the obligations recorded
-----
therein; provided, however, that failure to make such notation shall not
-------- -------
adversely affect the rights of the Secured Parties with respect to the
payment obligations of the Borrower hereunder and under the VFN.
(ii) The Borrower shall have the option to prepay all or a portion of
the VFN Balance on any Business Day selected by the Borrower (each, an
"Optional Prepayment"), subject to the following terms and conditions:
-------------------
1. The Borrower shall have given the Administrative Agent at least two
(2) Business Days' prior written notice of its intent to effect an Optional
Prepayment;
2. Unless such Optional Prepayment is to be effected on a Distribution
Date (in which case the relevant calculations with respect to such Optional
Prepayment shall be reflected on the applicable Servicer's Determination
Date Certificate), the Borrower shall cause the Servicer to deliver to the
Administrative Agent, the Backup Servicer and the Rating Agencies a
Servicer's VFN Prepayment Date Certificate substantially in the form of
Exhibit B-2 to the Sale and Servicing Agreement, together with evidence to
the Administrative
30
Agent, the Funding Agents, the Backup Servicer and the Rating Agencies
(which evidence may consist solely of the Servicer's VFN Prepayment Date
Certificate) that the Borrower shall have sufficient funds on the
contemplated VFN Prepayment Date to effect the Optional Prepayment in
accordance with this Agreement. Any such Servicer's VFN Prepayment Date
Certificate and related evidence shall be delivered to the Administrative
Agent no later than 1:00 P.M. (New York time), in draft form at least two
(2) Business Days prior to the contemplated VFN Prepayment Date and in
final form at least one Business Day prior to the contemplated VFN
Prepayment Date. In effecting an Optional Prepayment, the Borrower may (i)
use the proceeds of sales of the Receivables and/or Asset Backed Securities
(which sales must be made in arm's-length transactions to Persons other
than AFS unless such sale is in connection with a public asset-backed
transaction), and (ii) give effect to Collections on deposit in the
Collection Account at such time to the extent consistent with the
requirements of paragraph 4 below (as evidenced by the Servicer's VFN
Prepayment Date Certificate).
3. In connection with any such Optional Prepayment that does not
constitute a prepayment in full of the outstanding VFN Balance, then,
following receipt by each Funding Agent of the amounts referred to in
paragraph 5 below (and confirmation by each such Funding Agent to the
Administrative Agent), there shall be released from the Lien of this
Agreement (subject to the requirements of paragraph 4 below): (i) a portion
of the Receivables constituting a part of the Pool Balance selected by the
Borrower in accordance with the eligibility criteria established for the
related asset-backed transaction and additionally selected in accordance
with the earliest origination date of all Receivables; provided, however,
that the Borrower shall not have used any adverse selection procedures with
respect to the Receivables; and (ii) such other Receivables or Asset Backed
Securities not then constituting part of the Pool Balance, excluding,
however, any Receivable or Asset Backed Securities subject to a Repurchase
Obligation ("Other Designated Receivables" or "Other Designated Asset
---------------------------- ----------------------
Backed Securities," as applicable) as the Borrower intends to sell or
-----------------
distribute in accordance with the terms hereof and as are designated by the
Borrower and specified in the Servicer's VFN Prepayment Date Certificate
(such Receivables and/or Asset Backed Securities and such Other Designated
Receivables or Other Designated Asset Backed
31
Securities, together, in each case, with the related Other Conveyed
Property, being collectively referred to as the "Prepayment Related
------------------
Collateral").
----------
4. After giving effect to the Optional Prepayment and the release of
Prepayment Related Collateral from the Lien of this Agreement on any VFN
Prepayment Date, (x) the remaining VFN Balance minus Adjusted Collections,
-----
plus the amount of accrued and unpaid interest or discount, as applicable,
----
on all outstanding Fundings, together with all accrued and unpaid fees and
other costs and expenses due and owing to the Lending Groups, shall be less
than or equal to the amount resulting when the effective Advance Percentage
is multiplied by the remaining Pool Balance, (y) none of the Pool
Limitations shall be exceeded and (z) a Termination Event or Potential
Termination Event shall not have resulted;
For purposes of the foregoing, Adjusted Collections means the product
of (i) the effective Advance Percentage, and (ii) the amount of Collections
on deposit in the Collection Account as of the close of business on the
Business Day preceding the date of the Servicer's VFN Prepayment Date
Certificate (which Collections shall be available for distribution in
accordance with Article VI of the Sale and Servicing Agreement).
5. On the related VFN Prepayment Date, the Administrative Agent shall
have received, for the benefit of the Secured Parties, in immediately
available funds, an amount equal to the sum of (i) the portion of the VFN
Balance to be prepaid plus (ii) an amount equal to all unpaid Carrying
----
Costs (including Carrying Costs not yet accrued) to the extent reasonably
determined by the Funding Agents (and notified to the Administrative Agent)
to be attributable to that portion of the Aggregate Net Investment to be
prepaid plus (iii) an aggregate amount equal to the sum of all other
----
amounts due and owing to the Administrative Agent, the Funding Agents and
the Secured Parties under this Agreement and the other Basic Agreements, to
the extent accrued to such date and to accrue thereafter, as reasonably
determined by the Funding Agents (and notified to the Administrative Agent)
to be attributable to that portion of the Aggregate Net Investment to be
prepaid.
32
6. In connection with the Optional Prepayment of any Funding made to
the Borrower with the proceeds of Commercial Paper, the Borrower shall, on
the related Interest Payment Date, pay to the related CP Lenders all
interest or discount, as applicable, accrued and unpaid and to accrue
through the maturity date(s) related to such Commercial Paper.
The Borrower hereby agrees to pay the reasonable legal fees and
expenses of the Administrative Agent, the Funding Agents and the Secured
Parties in connection with any Optional Prepayment (including, but not
limited to, expenses incurred in connection with the release of the Lien of
the Administrative Agent over the Receivables, related Other Conveyed
Property in connection with such Optional Prepayment) not to exceed $25,000
annually.
(iii) Although the VFN shall be dated the date hereof, Carrying Costs
in respect thereof shall be payable in the manner specified therein and in
the other Basic Agreements only for the periods during which amounts are
outstanding thereunder. In addition, although the stated principal amount
of the VFN shall be equal to the Maximum Facility Limit, the VFN shall be
enforceable with respect to the Borrower's obligation to pay the principal
thereof only to the extent of the unpaid principal amount outstanding
thereunder at the time such enforcement shall be sought. Principal on the
VFN shall be payable by the Borrower in the manner and on the dates
specified in the VFN and in the other Basic Agreements.
(g) Conditions Precedent. The obligations of the Secured Parties under this
--------------------
Agreement on any Funding Date are subject to the accuracy of the representations
and warranties on the part of the Borrower made herein and in the other Basic
Agreements as of such Funding Date. This Agreement shall become effective on the
first day on which all of the following conditions precedent have been satisfied
(the "Effective Date"):
--------------
(i) The Administrative Agent shall have received such opinions of
counsel to the Sellers, the Servicer and the Borrower, in form and
substance acceptable to the Administrative Agent and each Funding Agent,
addressing such matters as each Funding Agent and the Administrative Agent,
on behalf of the Secured Parties, shall request.
33
(ii) The Administrative Agent shall have received a certificate of the
Borrower, dated the date hereof, stating that (1) its representations and
warranties made herein and in the other Basic Agreements are true and
correct as of the date hereof, and (2) the Borrower has complied with all
agreements and satisfied all conditions to be satisfied on its part
pursuant to this Agreement and the other Basic Agreements on or prior to
the date hereof.
(iii) All conditions precedent to the authentication and delivery of
the VFN under this Agreement shall have been satisfied.
(iv) Each party to a Basic Agreement shall have performed and complied
with all agreements and conditions contained in such Basic Agreement and
all other documents delivered in connection herewith or therewith which are
required to be performed or complied with by such party.
(v) This Agreement, the other Basic Agreements (other than the Hedge
Contracts, the Receivables Sale Agreements and the ABS Sale Agreements
which will be delivered in connection with the sale of Receivables or Asset
Backed Securities, as applicable), the Fee Letters, and all agreements,
certificates, instruments and other documents required to be delivered in
connection herewith and therewith shall have been duly authorized, executed
and delivered by the respective parties thereto, shall be in full force and
effect and shall be in form and substance satisfactory to the
Administrative Agent and the Secured Parties.
(vi) The Administrative Agent shall have received the following, in
each case in form and substance satisfactory to it:
(1) copy of the Trust Agreement, certified by the Secretary or an
Assistant Secretary of the Trustee as of the date hereof, duly
authorizing the execution, delivery and performance by the Borrower of
the documents executed by or on behalf of the Borrower in connection
with the transactions contemplated by this Agreement and the other
Basic Agreements to which it is a party; and attesting to the names
and true
34
signatures of the person or persons executing and delivering each such
document;
(2) a copy of the resolutions of the Board of Directors of each
Seller (or if either Seller is not a corporation, then comparable
documents) and the Servicer, certified by the Secretary or an
Assistant Secretary of such Sellers and the Servicer as of the date
hereof, duly authorizing the execution, delivery and performance by
the Sellers and the Servicer of each of the Basic Agreements to which
each of them is a party and any other documents executed by or on
behalf of the Sellers and the Servicer in connection with the
transactions contemplated thereby; and an incumbency certificate of
each Seller and the Servicer as to the person or persons executing and
delivering each such document; and
(3) such other documents and evidence with respect to the
Borrower, the Sellers, the Servicer and the BackUp Servicer as the
Administrative Agent and the Funding Agents may reasonably request in
order to establish the trust or corporate existence and good standing
of each thereof, the proper taking of all appropriate corporate or
other proceedings in connection with the transactions contemplated by
this Agreement and the other Basic Agreements and the compliance with
the conditions set forth herein and therein.
(vii) No fact or condition shall exist under applicable law or
applicable regulations thereunder or interpretations thereof by any
regulatory authority which, in the reasonable opinion of the Administrative
Agent and the Funding Agents, would make it unlawful to issue the VFN or
for the Borrower or any of the other parties thereto to perform their
respective obligations under this Agreement and the other Basic Agreements.
(viii) The Sellers and the Borrower shall have filed any financing
statements or amendments thereto, wherever necessary or advisable in the
judgment of the Administrative Agent and the Funding Agents, in order to
perfect the transfer and assignment of the Receivables to the Borrower and
the grant of the security interest therein to the Administrative Agent and
shall have delivered file-
35
stamped copies of such financing statements or other evidence of the filing
thereof to the Administrative Agent.
(ix) All taxes and fees due in connection with the filing of the
financing statements referred to in clause (viii) of this Section 7.1(g)
shall have been paid in full or duly provided for.
(x) No action or proceeding shall have been instituted nor shall any
governmental action be threatened before any court or governmental agency
nor shall any order, judgment or decree have been issued or proposed to be
issued by any court or governmental agency to set aside, restrain, enjoin
or prevent the performance of this Agreement or any of the other Basic
Agreements or the transactions contemplated hereby or thereby.
(xi) If applicable, each Funding Agent shall have received written
confirmation from each of the Rating Agencies that the then-current ratings
assigned by each of them to the Commercial Paper issued by its related CP
Lender will not be reduced or withdrawn as a result of the execution and
delivery of this Agreement by such CP Lender.
(xii) Eiffel and the Eiffel Funding Agent shall have received (with
copies to the Administrative Agent) opinions of counsel to the Sellers, the
Servicer, the Borrower, the Trust and the Trustee, dated on or about the
date hereof, in form and substance acceptable to, and addressing such
matters as, the Eiffel Funding Agent shall reasonably request, unless such
condition is otherwise waived by the Eiffel Funding Agent.
(h) Maturity of Commercial Paper. HLS shall not issue any Commercial Paper
----------------------------
related to the VFN with a maturity in excess of ninety (90) days in connection
with any financing or refinancing of an increase in the VFN.
Section 7.2 Sharing of Payments, Etc. If any Secured Party (for purposes of
------------------------
this Section 7.2 only, being a "Recipient") shall obtain any payment (whether
---------
voluntary, involuntary, through the exercise of any right of setoff, or
otherwise) on account of any interest in the VFN owned by it (other than
payments made in connection with any same day Funding) in excess of its ratable
share (based on the proportion of its Net Investment to the aggregate Net
Investment of all Lender
36
Groups) of payments on account of any interest in the VFN obtained by such
Secured Parties entitled thereto, such Recipient shall forthwith purchase from
such Secured Parties entitled to a share of such amount participations in the
percentage interests owned by such Persons as shall be necessary to cause such
Recipient to share the excess payment ratably with each such other Person
entitled thereto; provided, however, that if all or any portion of such excess
-------- -------
payment is thereafter recovered from such Recipient, such purchase from each
such other Person shall be rescinded and each such other Person shall repay to
the Recipient the purchase price paid by such Recipient for such participation
to the extent of such recovery, together with an amount equal to such other
Person's ratable share (according to the proportion of (a) the amount of such
other Person's required payment to (b) the total amount so recovered from the
Recipient) of any interest or other amount paid or payable by the Recipient in
respect of the total amount so recovered. Payments received by a Recipient in
connection with any same day Funding shall be treated by PARCO APA Banks in the
same manner set forth in this Section.
----
Section 7.3 Right of Setoff. Without in any way limiting the provisions of
---------------
Section 7.2, each of the Secured Parties is hereby authorized (in addition to
any other rights it may have) at any time after the occurrence of a Termination
Event or during the continuance of a Potential Termination Event to setoff,
appropriate and apply (without presentment, demand, protest or other notice
which are hereby expressly waived) any deposits and any other indebtedness held
or owing by such Secured Party to, or for the account of, the Borrower against
the amount owing by the Borrower hereunder to such Person (even if contingent or
unmatured).
Section 7.4 Interest. (a) Any Funding (or portion thereof) funded by a CP
--------
Lender through the issuance of Commercial Paper shall bear interest calculated
at such CP Lender's applicable CP Rate.
(b) At the option of the Borrower (and in the case of HLS or Eiffel,
following a Wind-Down Event for HLS or Eiffel), any Funding (or portion thereof)
funded by a CP Lender other than through the issuance of Commercial Paper or by
an APA Bank in such Lending Group to the Borrower pursuant to Section 7.1 hereof
shall bear interest at either (i) if available from such APA Bank to the
Borrower on the related Funding Date, the related Eurodollar Rate for such APA
Bank or (ii) in all other cases, the related Alternate Base Rate for such APA
Bank; provided that any Funding (or portion thereof) made by Eiffel other than
--------
through the issuance of Commercial Paper or by an Eiffel Liquidity Bank shall
bear interest at the Eiffel Eurodollar Rate.
37
(c) If any principal of, or interest on, any portion of any Funding or any
fee or other amount payable by the Borrower hereunder is not paid when due,
whether at stated maturity, upon acceleration or otherwise, such overdue amount
shall bear interest, after as well as before judgment, at a rate per annum equal
to the applicable Alternate Base Rate plus 2%.
----
(d) Accrued Interest on each Funding shall be payable in arrears on each
Interest Payment Date for such Funding and upon the Commitment Expiry Date and,
if applicable, upon each Interest Payment Date following the Commitment Expiry
Date; provided that (i) interest accrued pursuant to paragraph (c) of this
--------
Section 7.4 shall be payable on demand, (ii) in the event of any repayment of
any Funding or prepayment (other than with respect to a CP Funding) of any
Funding, accrued interest on the principal amount repaid or prepaid shall be
payable on the date of such repayment or prepayment and (iii) in the event of
any conversion of any ABR Funding or Eurodollar Funding pursuant to Section 7.7,
accrued interest on such ABR Funding or Eurodollar Funding shall be payable on
the Distribution Date occurring immediately after such conversion.
(e) All interest on Fundings hereunder shall be computed on the basis of a
year of 360 days, except that interest computed when an Alternate Base Rate is
based on the Prime Rate shall be computed on the basis of a year of 365 days (or
366 days in a leap year), and in each case shall be payable for the actual
number of days elapsed (including the first day but excluding the last day). The
applicable Alternate Base Rate or Eurodollar Rate shall be determined by each
Funding Agent (with notice to the Administrative Agent), and such determination
shall be conclusive absent manifest error.
(f) If a Termination Event (other than a Termination Event described in
clause (p) of the definition thereof) has occurred and is continuing, then
interest thereafter accruing on all Fundings then existing or thereafter made
shall accrue at the Alternate Base Rate plus 2.00%.
Section 7.5 Payments Generally. All payments by the Borrower hereunder
------------------
shall be at the times, and in the manner, specified in Section 6.8 of the Sale
and Servicing Agreement. Notwithstanding any provision of this Agreement or the
other Basic Agreements to the contrary, all amounts due and owing to the
Administrative Agent, the Funding Agents and the Secured Parties by the Borrower
hereunder and under the other Basic Agreements (if not due on an earlier date in
accordance with the terms hereof or the other Basic Agreements) will be due and
38
payable on the Distribution Date occurring in the month seventy-eight (78)
months following the Commitment Expiry Date.
Section 7.6 Broken Funding. In the event of (a) the payment of any
--------------
principal of any Eurodollar Funding or CP Funding other than on the last day of
a Eurodollar Funding Period or CP Funding Period (as applicable) applicable
thereto (including as a result of a Termination Event, Potential Termination
Event or Optional Prepayment), (b) the conversion of any Eurodollar Funding
other than on the applicable Interest Payment Date or (c) any failure to borrow,
convert, continue or prepay any Eurodollar Funding or CP Funding on the date
specified in any notice delivered pursuant hereto, then, in any such event, the
Borrower shall compensate the CP Lenders and the APA Banks, for the loss, cost
and expense attributable to such event. Such loss, cost or expense to any CP
Lender or APA Bank shall be deemed to include an amount determined by such CP
Lender or APA Bank to be the excess, if any, of (i) the amount of interest which
would have accrued on the principal amount of such Eurodollar Funding or CP
Funding had such event not occurred, at the Eurodollar Rate or CP Rate that
would have been applicable to such Funding, for the period from the date of such
event to the Interest Payment Date therefor (or, in the case of a failure to
borrow, convert or continue, for the period that would have been the related
Eurodollar Funding Period) or, in the case of a CP Funding, the last day of the
applicable CP Funding Period, over (ii) in the case of an APA Bank only, the
amount of interest which would accrue on such principal amount for such period
at the interest rate which such APA Bank would bid were it to bid, at the
commencement of such period, for dollar deposits of a comparable amount and
period from other banks in the interbank eurodollar market. A certificate of any
CP Lender or APA Bank setting forth any amount or amounts that such CP Lender or
APA Bank is entitled to receive pursuant to this Section 7.6 shall be delivered
to the Borrower and shall be conclusive absent manifest error. The Borrower
shall pay each such CP Lender or APA Bank the amount shown as due on any such
certificate on the next succeeding Distribution Date after receipt thereof.
Section 7.7 Conversion and Continuation of Outstanding Advances Made by the
---------------------------------------------------------------
APA Banks. Prior to the occurrence of a Termination Event or a Potential
---------
Termination Event, (a) each ABR Funding hereunder may, at the option of the
Borrower, be converted to a Eurodollar Funding, (b) each Eurodollar Funding
hereunder may, at the option of the Borrower, be continued as a Eurodollar
Funding or converted to an ABR Funding. If a Termination Event or Potential
Termination Event has occurred and is continuing, then, for so long as any such
Termination Event or Potential Termination Event is continuing, (i) no
outstanding Funding may be converted to, or continued as, a Eurodollar Funding,
(ii) unless repaid, each
39
Eurodollar Funding shall be converted to an ABR Funding on the next succeeding
Interest Payment Date related thereto. For any such conversion or continuation,
the Borrower shall give the applicable Funding Agent irrevocable notice (each, a
"Conversion/Continuation Notice") of such request not later than 12:30 P.M. (New
------------------------------
York time) (i) in the case of a conversion of an ABR Funding into a Eurodollar
Funding, or a continuation of a Eurodollar Funding as a Eurodollar Funding,
three (3) Business Days before the date of such conversion or continuation, as
applicable, and (ii) following the occurrence and continuation of a Termination
Event or a Potential Termination Event, in the case of a conversion of a
Eurodollar Funding into an ABR Funding or a continuation of an ABR Funding as an
ABR Funding, on the Business Day of such conversion (with a copy to the
Administrative Agent). If a Conversion/Continuation Notice has not been timely
delivered with respect to any ABR Funding or Eurodollar Funding, such Funding
shall be automatically continued as, or converted to, an ABR Funding. Each
Conversion/Continuation Notice shall specify (a) the requested date (which shall
be a Business Day) of such conversion or continuation, (b) the aggregate amount
and rate option applicable to the Funding which is to be converted or continued
and (c) the amount and rate option(s) of Funding(s) into which such Funding is
to be converted or continued. Each CP Funding and in the case of HLS or Eiffel,
as the case may be, prior to the occurrence of a Wind-Down Event with respect to
HLS or Eiffel, as the case may be (or upon the termination of such Wind-Down
Event, if applicable), shall be continued, subject to the terms and conditions
hereof, for another CP Funding Period of a duration to be agreed upon between
the Borrower and such CP Lender (or, if the Borrower does not specify the
duration, for a duration specified by such CP Lender).
Section 7.8 Illegality. (a) Notwithstanding any other provision herein, if,
----------
after the Effective Date, the adoption of any Law or bank regulatory guideline
or any amendment or change in the interpretation of any existing or future Law
or bank regulatory guideline by any Official Body charged with the
administration, interpretation or application thereof, or the compliance with
any directive of any Official Body (in the case of any bank regulatory
guideline, whether or not having the force of Law), shall make it unlawful for
any APA Bank to acquire or maintain a Eurodollar Funding as contemplated by this
Agreement, (i) such APA Bank shall promptly, after becoming aware thereof,
notify the Funding Agent and the Borrower thereof, (ii) the commitment of such
APA Bank hereunder to make a portion of a Eurodollar Funding, continue any
portion of a Eurodollar Funding as such and convert an ABR Funding to a
Eurodollar Funding shall forthwith be cancelled, and such cancellation shall
remain in effect so long as the circumstance described above exists, and (iii)
such APA Bank's portion of any Eurodollar Funding then outstanding
40
shall be converted automatically to an ABR Funding on the last day of the
related Eurodollar Funding Period, or within such earlier period as required by
law.
If any such conversion of a portion of a Eurodollar Funding occurs on a day
which is not the last day of the related Eurodollar Funding Period, the Borrower
shall pay to such APA Bank such amounts, if any, as may be required to
compensate such APA Bank pursuant to Section 7.6 hereof. If circumstances
subsequently change so that it is no longer unlawful for an affected APA Bank to
acquire or to maintain a portion of a Eurodollar Funding as contemplated
hereunder, such APA Bank will, as soon as reasonably practicable after such APA
Bank knows of such change in circumstances, notify the Borrower, and the related
Funding Agent (with a copy to the Administrative Agent), and upon receipt of
such notice, the obligations of such APA Bank to acquire or maintain its
acquisition of portions of Eurodollar Fundings or to convert its portion of an
ABR Funding into portions of Eurodollar Fundings shall be reinstated.
(b) Each APA Bank agrees that, upon the occurrence of any event giving rise
to the operation of Section 7.8(a) with respect to such APA Bank, it will, if
requested by the Borrower and to the extent permitted by law or by the relevant
Official Body, endeavor in good faith to change the office at which it books its
portions of Eurodollar Fundings hereunder if such change would make it lawful
for such APA Bank to continue to acquire or to maintain its acquisition of
portions of Eurodollar Fundings hereunder; provided that such change may be made
--------
in such manner that such APA Bank, in its sole determination, suffers no
unreimbursed cost or expense or any other disadvantage whatsoever.
Section 7.9 Inability to Determine Eurodollar Rate. If, prior to the first
--------------------------------------
day of any Eurodollar Period:
(i) the applicable Funding Agent shall have determined (which
determination in the absence of manifest error shall be conclusive and
binding upon the Borrower) that, by reason of circumstances affecting the
relevant market, adequate and reasonable means do not exist for
ascertaining the Eurodollar Rate for such Eurodollar Funding Period; or
(ii) the applicable Funding Agent shall have received notice from one
or more of the APA Banks in its Lending Group that the Eurodollar Rate
determined or to be determined for such Eurodollar Funding Period will not
adequately and fairly reflect the cost to
41
such APA Banks (as conclusively certified by such APA Banks) of purchasing
or maintaining their affected portions of Eurodollar Fundings during such
Eurodollar Funding Period;
then, in either such event, such Funding Agent shall give telecopy or telephonic
notice thereof (confirmed in writing) to the Administrative Agent, the Borrower
and the APA Banks in its Lending Group as soon as practicable thereafter. Until
such notice has been withdrawn by such Funding Agent, no further Eurodollar
Fundings shall be made with respect to such Lending Group. Each Funding Agent
agrees to withdraw any such notice as soon as reasonably practicable after it is
notified of a change in circumstances which makes such notice inapplicable.
Section 7.10 Fees. The Borrower hereby agrees to pay to each Funding Agent,
----
for the account of the Secured Parties in its Lending Group (and, if applicable,
itself), the fees specified in the Fee Letter. Such payments shall be made to
the Funding Agents on the dates and in the manner specified in the Fee Letters.
ARTICLE VIII
INDEMNIFICATION
Section 8.1 Indemnity. Without limiting any other rights which the Secured
---------
Parties may have hereunder or under applicable law, the Borrower agrees to
indemnify the Secured Parties, the Administrative Agent, the Funding Agents and
the Securities Intermediary and any of their permitted assigns and their
respective agents, officers, directors and employees (collectively, "Indemnified
-----------
Parties") from and against any and all damages, losses, claims, liabilities,
-------
costs and expenses, including reasonable attorneys' fees (which such attorneys
may be employees of the Secured Parties, the Administrative Agent and the
Securities Intermediary) and disbursements (all of the foregoing being
collectively referred to as "Indemnified Amounts") awarded against or incurred
-------------------
by any of them arising out of or as a result of this Agreement and the other
Basic Agreements, excluding, however, (i) Indemnified Amounts to the extent
resulting from gross negligence or willful misconduct on the part of an
Indemnified Party or (ii) recourse (except as otherwise specifically provided in
this Agreement and the other Basic Agreements) for uncollectible Receivables,
Asset Backed Securities and Other Conveyed Property. Such Indemnified Amounts
shall be paid in accordance with the terms of the other Basic Agreements.
Without limiting the generality of the foregoing, the Borrower shall indemnify
each Indemnified Party for Indemnified Amounts relating to or resulting from:
42
(a) reliance on any representation or warranty made by the Borrower (or any
officers of the Borrower) under or in connection with this Agreement or any of
the other Basic Agreements, any Funding Request or any other information or
report delivered by the Borrower pursuant hereto or thereto, which shall have
been false or incorrect in any material respect when made or deemed made;
(b) the failure by the Borrower to comply with any applicable law, rule or
regulation with respect to the Collateral, or the nonconformity of the
Collateral with any such applicable law, rule or regulation;
(c) the failure to vest and maintain vested in the Administrative Agent on
behalf of the Secured Parties a first priority perfected security interest in
the Collateral (including, without limitation, all Financed Vehicles securing
Receivables), free and clear of any Lien (other than the Lien of this
Agreement);
(d) the failure to file, or any delay in filing, financing statements,
continuation statements, or other similar instruments or documents under the UCC
of any applicable jurisdiction or other applicable laws with respect to all or
any part of the Collateral or the failure to note the lien of the Borrower
and/or the Administrative Agent, on behalf of the Secured Parties, on the
certificate of title to any Financed Vehicle securing a Receivable, which
failure has an adverse effect on the validity, perfected status or priority of
the security interest granted to the Administrative Agent on behalf of the
Secured Parties under this Agreement;
(e) any valid dispute, claim, offset or defense (other than discharge in
bankruptcy of the related Obligor) of the Obligor to the payment of any
Receivable (including, without limitation, a defense based on such Receivable
not being legal, valid and binding obligation of such Obligor enforceable
against it in accordance with its terms), or any other claim resulting from the
sale of a Financed Vehicle or services related to such Receivable or the
furnishing or failure to furnish such Financed Vehicle or services;
(f) any failure of the Borrower to perform its duties, covenants or
obligations in accordance with the provisions of this Agreement;
(g) any product liability claim or personal injury or property damage suit
or other similar or related claim or action of whatever sort arising out of or
in connection with the related Financed Vehicle or related merchandise or
services which are the subject of any Receivable; or
43
(h) the co-mingling of Collections with any other funds;
provided, however, that if a CP Lender enters into agreements for the
-------- -------
purchase of interests in receivables from one or more Other Transferors, such CP
Lender shall allocate such Indemnified Amounts which are in connection with its
activities to the Borrower and each Other Transferor; and provided further that
-------- -------
if such Indemnified Amounts are attributable to the Borrower and not
attributable to any Other Transferor, the Borrower shall be solely liable for
such Indemnified Amounts or, if such Indemnified Amounts are attributable to
Other Transferors and not attributable to the Borrower, such Other Transferors
shall be solely liable for such Indemnified Amounts.
Section 8.2 Indemnity for Reserves and Expenses. (a) If after the date
-----------------------------------
hereof, the adoption of any Law or bank regulatory guideline or any amendment or
change in the interpretation of any existing or future Law or bank regulatory
guideline by any Official Body charged with the administration, interpretation
or application thereof, or the compliance with any directive of any Official
Body (in the case of any bank regulatory guideline, whether or not having the
force of Law):
(1) shall impose, modify or deem applicable any reserve, special
deposit or similar requirement (including, without limitation, any such
requirement imposed by the Board of Governors of the Federal Reserve
System) against assets of, deposits with or for the account of, or credit
extended by, any Indemnified Party or shall impose on any Indemnified Party
or on the United States market for certificates of deposit or the London
interbank market any other condition affecting this Agreement, the other
Basic Agreements, any Asset Purchase Agreement, any liquidity agreement
between a CP Lender and one or more financial institutions relating to this
Agreement, the Collateral or payments of amounts due hereunder or
thereunder or its obligation to advance funds under any agreement or
otherwise in respect of this Agreement, the other Basic Agreements, any
Asset Purchase Agreement, any liquidity agreement between a CP Lender and
one or more financial institutions relating to this Agreement, or the
Collateral; or
(2) imposes upon any Indemnified Party any other expense (including,
without limitation, reasonable attorneys' fees and expenses, and expenses
of litigation or preparation therefor in contesting any of the foregoing)
with respect to this Agreement, the
44
other Basic Agreements, any Asset Purchase Agreement, any liquidity
agreement between a CP Lender and one or more financial institutions
relating to this Agreement, the Collateral or payments of amounts due
hereunder or thereunder or its obligation to advance funds under any
agreement or otherwise in respect of this Agreement, the other Basic
Agreements, any Asset Purchase Agreement, any liquidity agreement between a
CP Lender and one or more financial institutions relating to this
Agreement, or the Collateral;
and the result of any of the foregoing is to increase the cost to such
Indemnified Party with respect to this Agreement, the other Basic Agreements,
any Asset Purchase Agreement, any liquidity agreement between a CP Lender and
one or more financial institutions relating to this Agreement, the Collateral
and the obligations hereunder and thereunder, by an amount reasonably deemed by
such Indemnified Party to be material, then, on the next succeeding Distribution
Date after demand by a Funding Agent, the Borrower shall pay to such Funding
Agent, for the benefit of such Indemnified Party, such additional amount or
amounts as will compensate such Indemnified Party for such increased cost;
provided that no such amount shall be payable with respect to any period
--------
commencing more than two hundred seventy (270) days prior to the date such
Funding Agent first notifies the Borrower of its intention to demand
compensation therefor under this Section 8.2(a); provided further that if such
-------- -------
change in Law, rule or regulation giving rise to such increased costs or
reductions is retroactive, then such 270-day period shall be extended to include
the period of retroactive effect thereof.
(b) If any Indemnified Party shall have determined that after the date
hereof, the adoption of any applicable Law or bank regulatory guideline
regarding capital adequacy, or any change therein, or any change in the
interpretation thereof by any Official Body, or any directive regarding capital
adequacy (in the case of any bank regulatory guideline, whether or not having
the force of law) of any such Official Body, has or would have the effect of
reducing the rate of return on capital of such Indemnified Party (or its parent)
as a consequence of such Indemnified Party's obligations hereunder or under any
of the Basic Agreements, any Asset Purchase Agreement, any liquidity agreement
between a CP Lender and one or more financial institutions relating to this
Agreement, or with respect hereto or thereto to a level below that which such
Indemnified Party (or its parent) could have achieved but for such adoption,
change, request or directive (taking into consideration its policies with
respect to capital adequacy) by an amount reasonably deemed by such Indemnified
Party to be material, then from time to time, within ten (10) days after demand
by a Funding Agent, the Borrower shall pay to such Funding Agent, for the
benefit of
45
such Indemnified Party, such additional amount or amounts as will compensate
such Indemnified Party (or its parent) for such reduction; provided that no such
--------
amount shall be payable with respect to any period commencing two hundred
seventy (270) days prior to the date such Funding Agent first notifies the
Borrower of its intention to demand compensation under this Section 8.2(b);
provided further that if such change in Law, rule or regulation giving rise to
-------- -------
such increased costs or reductions is retroactive, then such 270-day period
shall be extended to include the period of retroactive effect thereof.
(c) The Administrative Agent, the Securities Intermediary and each Funding
Agent will promptly notify the Borrower of any event of which it has knowledge,
occurring after the date hereof, which will entitle an Indemnified Party to
compensation pursuant to this Article VIII. A notice by the Administrative Agent
or a Funding Agent claiming compensation for the benefit of an Indemnified Party
under this Article VIII and setting forth the additional amount or amounts to be
paid to it hereunder shall be conclusive in the absence of manifest error. In
determining such amount, the Administrative Agent, the Securities Intermediary
or such Funding Agent may use any reasonable averaging and attributing methods.
Section 8.3 Indemnity for Taxes. (a) All payments made by the Borrower
-------------------
under this Agreement and any other Basic Agreement shall be made free and clear
of, and without deduction or withholding for or on account of, any present or
future income, stamp or other taxes, levies, imposts, duties, charges, fees,
deductions or withholdings (including interest and penalties), now or hereafter
imposed, levied, collected, withheld or assessed by any Official Body, other
than Excluded Taxes (all such non-excluded taxes, levies, imposts, duties,
charges, fees, deductions or withholdings, collectively or individually,
"Taxes"). If any such Taxes are required to be withheld from any amounts payable
-----
to the Administrative Agent, the Securities Intermediary, any Funding Agent or
any Indemnified Party hereunder, the amounts so payable to the Administrative
Agent, the Securities Intermediary, any such Funding Agent or such Indemnified
Party shall be increased to the extent necessary to yield to such Person (after
payment of all Taxes) all amounts payable hereunder at the rates or in the
amounts specified in this Agreement and the other Basic Agreements. The Borrower
shall indemnify the Administrative Agent, the Securities Intermediary, any
Funding Agent or any such Indemnified Party for the full amount of any such
Taxes on the Distribution Date immediately succeeding the date of written demand
therefor by such Person.
(b) If any Taxes are directly asserted against any recipient with respect
to any payment received by the Administrative Agent, the Securities Interme-
46
diary, any Funding Agent or any Indemnified Party hereunder, the recipient may
pay such Taxes and the Borrower will promptly pay such additional amounts
(including any penalties, interest or expenses) as shall be necessary in order
that the net amount received by the recipient after the payment of such Taxes
(including any Taxes on such additional amount) shall equal the amount such
recipient would have received had such Taxes not been asserted.
(c) Each Indemnified Party that is not incorporated under the laws of the
United States of America or a state thereof or the District of Columbia shall:
(i) deliver to the Borrower and to the related Funding Agent (A) two
duly completed copies of IRS Form 1001 or Form 4224, or successor applicable
form, as the case may be, and (B) if applicable, an IRS Form W-8 or W-9, or
successor applicable form, as the case may be;
(ii) deliver to the Borrower and to the related Funding Agent two (2)
further copies of any such form or certification on or before the date that
any such form or certification expires or becomes obsolete and after the
occurrence of any event requiring a change in the most recent form previously
delivered by it to the Borrower; and
(iii) obtain such extensions of time for filing and complete such
forms or certifications as may reasonably be requested by the Borrower or
such Funding Agent;
unless, in any such case, an event (including, without limitation, any change in
treaty, law or regulation) has occurred prior to the date on which any such
delivery would otherwise be required which renders all such forms inapplicable
or which would prevent such Indemnified Party from duly completing and
delivering any such form with respect to it, and such Indemnified Party so
advises the Borrower and the related Funding Agent. Each such Indemnified Party
so organized shall certify (i) in the case of an IRS Form 1001 or IRS Form 4224,
that it is entitled to receive payments under the this Agreement and the other
Basic Agreements without deduction or withholding of any United States federal
income taxes and (ii) in the case of an IRS Form W-8 or IRS Form W-9, that it is
entitled to an exemption from United States backup withholding tax. Each Person
that becomes a party to this Agreement as an APA Bank, shall, prior to the
effectiveness of such assignment, participation or addition, as applicable, be
required to provide all of the forms and statements required pursuant to this
Section 8.3.
47
Section 8.4 Other Costs, Expenses and Related Matters. The Borrower agrees,
-----------------------------------------
upon receipt of a written invoice, to pay or cause to be paid, and to save the
Secured Parties, the Administrative Agent, and the Securities Intermediary
harmless against liability for the payment of, all reasonable out-of-pocket
expenses (including, without limitation, all reasonable attorneys', accountants'
and other third parties' fees and expenses, and any filing fees and expenses
incurred by officers or employees of the Secured Parties, the Administrative
Agent, or the Securities Intermediary) incurred by or on behalf of any Secured
Party, the Administrative Agent or the Securities Intermediary (i) in connection
with the negotiation, execution, delivery and preparation of this Agreement and
the other Basic Agreements and any documents or instruments delivered pursuant
hereto or thereto and the transactions contemplated hereby and thereby and (ii)
from time to time (a) relating to any amendments, waivers or consents under this
Agreement and the other Basic Agreements, (b) arising in connection with the
Administrative Agent's, the Securities Intermediary, the Secured Parties' or
their respective agents' enforcement or preservation of rights (including,
without limitation, the perfection and protection of the Administrative Agent's
first priority security interest in the Collateral), or (c) arising in
connection with any audit, dispute, disagreement, litigation or preparation for
litigation involving this Agreement.
48
ARTICLE IX
MISCELLANEOUS
Section 9.1 Further Assurances. Each party hereto shall take such action
------------------
and deliver such instruments to any other party hereto, in addition to the
actions and instruments specifically provided for herein, as may be reasonably
requested or required to effectuate the purpose or provisions of this Agreement
or to confirm or perfect any transaction described or contemplated herein.
Section 9.2 Waiver. Any waiver by any party of any provision of this
------
Agreement or any right, remedy or option hereunder shall only prevent and estop
such party from thereafter enforcing such provision, right, remedy or option if
such waiver is given in writing and only as to the specific instance and for the
specific purpose for which such waiver was given. The failure or refusal of any
party hereto to insist in any one or more instances, or in a course of dealing,
upon the strict performance of any of the terms or provisions of this Agreement
by any party hereto or the partial exercise of any right, remedy or option
hereunder shall not be construed as a waiver or relinquishment of any such term
or provision, but the same shall continue in full force and effect.
Section 9.3 Amendments; Waivers. (a) Subject to the next succeeding
-------------------
provisos and Section 9.3(b), no amendment, waiver, supplement, modification or
discharge of any provision of this Agreement shall be effective unless the
Rating Agency Condition shall have been satisfied and such waiver or
modification shall be in writing and signed by the Borrower, the Administrative
Agent, and the Funding Agents in respect of the Required Lending Groups, and
then such amendment, waiver, supplement, modification or discharge shall be
effective only in the specific instance and for the specific purpose for which
given; provided that no such action that (i) increases or decreases the Facility
--------
Limit of any Lending Group hereunder, (ii) reduces amounts payable hereunder to
the Administrative Agent, any Secured Party or any Funding Agent, (iii) modifies
in any way the payment of interest and/or discount, fees, indemnities and other
amounts to any Secured Party hereunder (or to the Administrative Agent or to any
Funding Agent on its behalf), including any defined terms necessary to calculate
any such amounts, (iv) extends the Commitment Expiry Date or maturity of any
amount due hereunder or, except in the case of HLS, affects the ability of any
CP Lender to assign its interests to its related APA Banks under its Asset
Purchase Agreement, (v) amends, modifies or waives any definition used herein
which relates to or refers to a specific Secured Party, (vi) increases the
Commitment of any APA Bank, or (vii) modifies the
49
provisions of Section 7.1 or this Section 9.3 or the definition of "Required
Lending Group" or any other provision hereof specifying the number or percentage
of APA Banks required to waive, amend or modify any rights hereunder or make any
determination or grant any consent hereunder; shall in any case be effective
without the prior written consent of such Person(s) affected thereby; provided
--------
further that no such action that affects the rights, duties or obligations of
-------
the Administrative Agent or of any Funding Agent shall be effective without the
prior written consent of the Person(s) affected thereby. In the case of any
waiver, each of the parties hereto shall be restored to its former position and
rights hereunder, and any Termination Event or Servicer Termination Event waived
shall be deemed to be cured and not continuing; but no such waiver shall extend
to any subsequent or other Termination Event or Servicer Termination Event, or
impair any right consequent thereon.
(b) It is the intent of the parties hereto that the Borrower have the right
to amend this Agreement solely to add an additional lender or additional
lenders, subject to the approval of the Administrative Agent and each Funding
Agent party hereto, which shall not be unreasonably withheld or delayed.
Section 9.4 Severability. In the event that any provision of this Agreement
------------
or the application thereof to any party hereto or to any circumstance or in any
jurisdiction governing this Agreement shall, to any extent, be invalid or
unenforceable under any applicable statute, regulation or rule of law, then such
provision shall be deemed inoperative to the extent that it is invalid or
unenforceable and the remainder of this Agreement, and the application of any
such invalid or unenforceable provision to the parties, jurisdictions or
circumstances other than to whom or to which it is held invalid or
unenforceable, shall not be affected thereby nor shall the same affect the
validity or enforceability of any other provision of this Agreement. The parties
hereto further agree that the holding by any court of competent jurisdiction
that any remedy pursued by the Administrative Agent or any of the Secured
Parties hereunder is unavailable or unenforceable shall not affect in any way
the ability of the Administrative Agent or any of the Secured Parties to pursue
any other remedy available to it or them (subject, however, to any provisions of
this Agreement that expressly limit the exercise of such remedies).
Section 9.5 Nonpetition Covenant. Notwithstanding any prior termination of
--------------------
this Agreement, each of the parties hereto agrees that it shall not, prior to
one year and one day after the Termination Date, institute against, or join with
any other Person in instituting against, the Borrower any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceeding or other
similar proceeding under the laws of any jurisdiction. The parties agree that
damages will be an inadequate
50
remedy for breach of this covenant and that this covenant may be specifically
enforced.
Section 9.6 Notices. All notices, demands, certificates, requests and
-------
communications hereunder ("notices") shall be in writing and shall be effective
(a) upon receipt when sent through the U.S. mails, registered or certified mail,
return receipt requested, postage prepaid, with such receipt to be effective the
date of delivery indicated on the return receipt, or (b) one Business Day after
delivery to an overnight courier, or (c) on the date personally delivered to an
Authorized Officer of the party to which sent, or (d) on the date transmitted by
legible telecopier transmission with a confirmation of receipt, in all cases
addressed to the recipient at its address set forth in Annex A to the Sale and
Servicing Agreement. A copy of each notice given hereunder to any party hereto
shall also be given to (without duplication) the Borrower, the Funding Agents
and the Administrative Agent. Each party hereto may, by notice given in
accordance herewith to each of the other parties hereto, designate any further
or different address to which subsequent notices shall be sent.
Section 9.7 Term of this Agreement. This Agreement shall continue in effect
----------------------
until the Termination Date. On such Termination Date, this Agreement shall
terminate, all obligations of the parties hereunder shall cease and terminate
and the Collateral, if any, held hereunder and not to be used or applied in
discharge of any obligations of the Borrower in respect of the Secured
Obligations or otherwise under this Agreement or any of the other Basic
Agreements, shall be released to and in favor of the Borrower; provided that the
--------
provisions of Sections 3.4, 3.5, 7.6, 9.5, and 9.13 and Article VIII shall
survive any termination of this Agreement and the release of any Collateral upon
such termination.
Section 9.8 Assignments; Third-Party Rights. This Agreement shall be a
-------------------------------
continuing obligation of the parties hereto and shall (i) be binding upon the
parties and their respective successors and assigns, and (ii) inure to the
benefit of and be enforceable by each Secured Party and the Administrative Agent
for the benefit of the Secured Parties, and by their respective successors,
transferees and assigns. The Borrower may not assign this Agreement, or delegate
any of its duties hereunder, without the prior written consent of all of the
Secured Parties.
Section 9.9 Consent of Required Lending Groups. In the event that the
----------------------------------
consent of the Required Lending Groups is required under the terms hereof or
under the terms of any Basic Agreement, it is understood and agreed that, except
as otherwise provided expressly herein, the determination whether to grant or
withhold
51
such consent shall be made solely by each Secured Party in its sole and absolute
discretion.
Section 9.10 Limitation of Liability. The Administrative Agent shall not
-----------------------
have any obligations under this Agreement or any other Basic Agreement other
than those specifically set forth herein or therein, and no implied obligations
of the Administrative Agent shall be read into this Agreement or any other Basic
Agreement. Without limiting any other provision hereof, the parties further
expressly acknowledge and agree that in no event shall The Chase Manhattan Bank
be liable under or in connection with this Agreement for indirect, special or
consequential losses or damages of any kind, including lost profits, even if
advised of the possibility thereof and regardless of the form of action by which
such losses or damages may be claimed.
Section 9.11 Counterparts. This Agreement may be executed in two or more
------------
counterparts by the parties hereto, and each such counterpart shall be
considered an original and all such counterparts shall constitute one and the
same instrument.
Section 9.12 Headings. The headings of Sections and paragraphs and the
--------
Table of Contents contained in this Agreement are provided for convenience only.
They form no part of this Agreement and shall not affect its construction or
interpretation.
Section 9.13 No Recourse Against Certain Parties. No recourse under or with
-----------------------------------
respect to any obligation, covenant or agreement (including, without limitation,
any obligation or agreement to pay fees or any other amount) of the Borrower
contained in this Agreement or any other agreement, instrument or document
entered into by it pursuant hereto or in connection herewith shall be had
against any incorporator, Affiliate, stockholder, officer, employee, director or
agent of the Borrower solely by virtue of its acting in such capacity, by the
enforcement of any assessment, by any legal or equitable proceeding, by virtue
of any statute or otherwise; it being expressly agreed and understood that the
agreements of the Borrower contained in this Agreement and all of the other
agreements, instruments and documents entered into by it pursuant thereto or in
connection herewith are, in each case, solely the corporate obligations of the
Borrower, and that no personal liability whatsoever shall attach to or be
incurred by any incorporator, stockholder, Affiliate, officer, employee,
director or agent of the Borrower, or any of them, under or by reason of any of
the obligations, covenants or agreements of the Borrower contained in this
Agreement or in any other such instrument, document or agreement,
52
or which are implied therefrom, and that any and all personal liability of every
such incorporator, stockholder, affiliate, officer, employee, director or agent
of the Borrower for breaches by the Borrower of any such obligations, covenants
or agreements, which liability may arise either at common law or at equity, by
statute or constitution, or otherwise, is hereby expressly waived as a condition
of and in consideration for the execution of this Agreement; provided that the
--------
foregoing shall not relieve any such Person from any liability it might
otherwise have as a result of its fraudulent actions or omissions.
Section 9.14 Respective Rights of the Borrower and the Secured Parties in
------------------------------------------------------------
the Collateral. The Borrower hereby acknowledges and agrees that its interest in
--------------
the Collateral is subject and subordinate in all respects to its pledge of the
Collateral to the Secured Parties under this Agreement and that the
Administrative Agent holds the Collateral for the Secured Parties hereunder.
Section 9.15 Consents. (a) Each of the parties hereto consents to Amendment
--------
No. 1, dated as of April 27, 2001, to the Sale and Servicing Agreement for
purposes of Section 11.1 of the Sale and Servicing Agreement.
(b) Each of the parties hereto irrevocably submits to the jurisdiction of
the United States District Court for the Southern District of New York, any
court in the State of New York located in the city and county of New York, and
any appellate court from any thereof, in any action, suit or proceeding brought
against it and related to or in connection with this Agreement, the other Basic
Agreements or the transactions contemplated hereunder or thereunder or for
recognition or enforcement of any judgment and each of the parties hereto
irrevocably and unconditionally agrees that all claims in respect of any such
suit or action or proceeding may be heard or determined in such New York State
court or, to the extent permitted by law, in such federal court. Each of the
parties hereto agrees that a final judgment in any such action, suit or
proceeding shall be conclusive and may be enforced in other jurisdictions by
suit on the judgment or in any other manner provided by law. To the extent
permitted by applicable law, each of the parties hereby waives and agrees not to
assert by way of motion, as a defense or otherwise in any such suit, action or
proceeding, any claim that it is not personally subject to the jurisdiction of
such courts, that the suit, action or proceeding is brought in an inconvenient
forum, that the venue of the suit, action or proceeding is improper or that this
Agreement or any of the other Basic Agreements or the subject matter hereof or
thereof may not be litigated in or by such courts. The Borrower hereby
irrevocably appoints and designates The ▇▇▇▇▇▇▇▇-▇▇▇▇ Corporation System, ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, as its true and lawful attorney and
duly authorized agent for acceptance of
53
service of legal process. The Borrower agrees that service of such process upon
such Person shall constitute personal service of such process upon it. Nothing
contained in this Agreement shall limit or affect the rights of any party hereto
to serve process in any other manner permitted by law or to start legal
proceedings relating to any of the Basic Agreements against the Borrower or its
property in the courts of any jurisdiction.
Section 9.16 Trial by Jury Waived. Each of the parties hereto waives, to
--------------------
the fullest extent permitted by law, any right it may have to a trial by jury in
respect of any litigation arising directly or indirectly out of, under or in
connection with this Agreement, any of the other Basic Agreements or any of the
transactions contemplated hereunder or thereunder. Each of the parties hereto
(a) certifies that no representative, agent or attorney of any other party has
represented, expressly or otherwise, that such other party would not, in the
event of litigation, seek to enforce the foregoing waiver and (b) acknowledges
that it has been induced to enter into this Agreement and the other Basic
Agreements to which it is a party, by among other things, this waiver.
Section 9.17 Liabilities and Rights of Funding Agents. (a) Notwithstanding
----------------------------------------
any provision of this Agreement or any other Basic Agreement: (i) no Funding
Agent shall have any obligations under this Agreement or any other Basic
Agreement other than those specifically set forth herein and therein, and no
implied obligations of any Funding Agent shall be read into this Agreement or
any other Basic Agreement; and (ii) in no event shall any Funding Agent be
liable under or in connection with this Agreement or any other Basic Agreement
for indirect, special, or consequential losses or damages of any kind, including
lost profits, even if advised of the possibility thereof and regardless of the
form of action by which such losses or damages may be claimed. Neither shall any
Funding Agent nor any of their respective directors, officers, agents or
employees be liable for any action taken or omitted to be taken in good faith by
it or them under or in connection with this Agreement or any other Basic
Agreement, except for its or their own gross negligence or willful misconduct.
Without limiting the foregoing, each Funding Agent (a) may consult with legal
counsel, independent public accountants and other experts selected by it and
shall not be liable for any action taken or omitted to be taken in good faith by
it in accordance with the advice of such counsel, accountants or experts, (b)
shall not be responsible to the Secured Parties, the Sellers, the Servicer or
the Borrower for any statements, warranties or representations made in or in
connection with this Agreement or the other Basic Agreements (except for its
own), (c) shall not be responsible to the Secured Parties, the Sellers, the
Servicer or the Borrower for the due execution, legality, validity,
enforceability, genuineness, sufficiency or value of
54
this Agreement or the other Basic Agreements (except with respect to itself),
(d) shall incur no liability under or in respect of any of the Commercial Paper
or other obligations of the CP Lenders under this Agreement or the other Basic
Agreements and (e) shall incur no liability under or in respect of this
Agreement or the other Basic Agreements by acting upon any notice (including
notice by telephone), consent, certificate or other instrument or writing (which
may be by facsimile) believed by it to be genuine and signed or sent by the
proper party or parties. Notwithstanding anything else herein or in the other
Basic Agreements, it is agreed that where a Funding Agent may be required under
this Agreement or the other Basic Agreements to give notice of any event or
condition or to take any action as a result of the occurrence of any event or
the existence of any condition, such Funding Agent agrees to give such notice or
take such action only to the extent that it has actual knowledge of the
occurrence of such event or the existence of such condition, and shall incur no
liability for any failure to give such notice or take such action in the absence
of such knowledge.
(b) Each of the Funding Agents hereby represents and warrants to the
Sellers and the Servicer that it is duly authorized to act on behalf of any CP
Lender and APA Bank in its related Lending Group.
(c) Each Funding Agent (other than the HLS Funding Agent, the Victory
Funding Agent and the Eiffel Funding Agent) hereby confirms that the APA Banks
in its related Lender Group have executed and delivered the related Asset
Purchase Agreement and, by such execution and delivery, have assumed all of the
rights and obligations of the APA Banks hereunder and under the other Basic
Agreements. Except with respect to HLS, Victory and Eiffel, upon effectiveness
of this Agreement and, with respect to each APA Bank, upon effectiveness of its
related Asset Purchase Agreement, each APA Bank shall have all of the rights and
benefits of an "APA Bank" hereunder and under the other Basic Agreements, and
each APA Bank shall assume, and be bound by and liable for, all of the duties
and obligations of an "APA Bank" hereunder and thereunder to the extent
specified herein and therein, in each case as if such rights, benefits, duties,
and obligations were set forth in their entirety in the related Asset Purchase
Agreement.
(d) All actions taken by the Secured Parties in a Lending Group hereunder
and under the Basic Agreements shall be taken by the related Funding Agent on
behalf of such Secured Party.
Section 9.18 CP Lenders Generally. (a) Each of the parties hereto hereby
--------------------
agrees that it will not institute against, or join with any other Person in
55
instituting against, a CP Lender any bankruptcy, insolvency, reorganization or
similar proceeding so long as any Commercial Paper or other notes issued by such
Purchaser shall be outstanding or there shall not have elapsed one year plus one
day since the last day on which any such CP Lender's Commercial Paper or other
notes shall have been outstanding.
(b) Notwithstanding anything to the contrary contained herein, the
obligations of a CP Lender under this Agreement are solely the corporate
obligations of such CP Lender and (i) in the case of obligations of a CP Lender
other than Commercial Paper, shall be payable at such time as funds are actually
received by, or are available to, such CP Lender, in excess of funds necessary
to pay in full all of its outstanding Commercial Paper and, to the extent funds
are not available to pay such obligations, the claims relating thereto shall not
constitute a claim against such CP Lender, but shall continue to accrue. Each
party hereto agrees that the payment of any claim (as defined in ▇▇▇▇▇▇▇ ▇▇▇ ▇▇
▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ Code (Bankruptcy)) of any such party against a CP
Lender, shall be subordinated to the payment in full of all of such Lender's
outstanding Commercial Paper.
No recourse under any obligation, covenant or agreement of a CP Lender
contained in this Agreement shall be had against any incorporator, stockholder,
officer, director, member, manager, employee or agent of such CP Lender or any
of their Affiliates (solely by virtue of such capacity) by the enforcement of
any assessment or by any legal or equitable proceeding, by virtue of any statute
or otherwise; it being expressly agreed and understood that this Agreement is
solely a corporate obligation of each CP Lender, and that no personal liability
whatever shall attach to or be incurred by any incorporator, stockholder,
officer, director, member, manager, employee or agent of such CP Lender or any
of its Affiliates (solely by virtue of such capacity) or any of them under or by
reason of any of the obligations, covenants or agreements of such CP Lender
contained in this Agreement, or implied therefrom, and that any and all personal
liability for breaches by a CP Lender of any of such obligations, covenants or
agreements, either at common law or at equity, or by statute, rule or
regulation, of every such incorporator, stockholder, officer, director, member,
manager, employee or agent is hereby expressly waived as a condition of and in
consideration for the execution of this Agreement; provided that the foregoing
--------
shall not relieve any such Person from any liability it might otherwise have as
a result of their willful misconduct or of fraudulent actions taken or
fraudulent omissions made by them.
(c) Each of the parties hereto hereby waives any right to setoff which it
may have or to it may be entitled against a CP Lender or its assets.
56
Section 9.19 Governing Law. This Agreement shall be governed by and
-------------
construed, and the obligations, rights and remedies of the parties hereunder
shall be determined, in accordance with the laws of the State of New York.
Section 9.20 No Recourse. It is expressly understood and agreed by the
-----------
parties hereto that (a) this Agreement is executed and delivered by Bankers
Trust (Delaware), not individually or personally but solely as trustee of the
Borrower, in the exercise of the powers and authority conferred and vested in
it, (b) each of the representations, undertakings and agreements herein made on
the part of the Borrower is made and intended not as personal representations,
undertakings and agreements by Bankers Trust (Delaware) but is made and intended
for the purpose of binding only the Borrower, (c) nothing herein contained shall
be construed as creating any liability on Bankers Trust (Delaware), individually
or personally, to perform any covenant either expressed or implied contained
herein, all such liability, if any, being expressly waived by the parties hereto
and by any Person claiming by, through or under the parties hereto and (d) under
no circumstances shall Bankers Trust (Delaware) be personally liable for the
payment of any indebtedness or expenses of the Borrower or be liable for the
breach or failure of any obligation, representation, warranty or covenant made
or undertaken by the Borrower under this Agreement or any other related
documents.
Section 9.21 Certain Special Provisions Regarding Victory. (a) No recourse
--------------------------------------------
shall be had for the payment of any amount owing in respect of any obligation
of, or claim against, the Victory arising out of or based upon any Basic
Agreement against ▇ ▇ Management Corporation or against any stockholder,
employee, officer, director or incorporator of the Victory or ▇ ▇ Management
Corporation; provided, however, that the foregoing shall not relieve any such
Person or entity from any liability they might otherwise have arising from his,
her or its willful misconduct or intentional misrepresentation.
(b) The parties agree that Bankers Trust Company shall have no obligation,
in its capacity as program administrator for the Victory or otherwise, to take
any actions under the Basic Agreements if Bankers Trust Company is relieved of
its obligations as program administrator for Victory.
(c) Until the 366th day following the payment at maturity of the last
maturing commercial paper note issued or to be issued by the Victory, no party
hereto shall initiate, or join with others in initiating, any involuntary
proceeding
57
against the Victory under any bankruptcy, insolvency, reorganization,
receivership or other law (domestic or foreign), as now or hereafter in effect.
(d) Nothing herein or in any Basic Agreement shall prohibit, condition or
in any way restrict or limit: (i) the pledge to the Victory's program collateral
Conduit Agent of Victory's right, title and interest in and to its respective
interests under the VFN and the Basic Agreements or its rights under the Basic
Agreements; or (ii) the transfer of all or any part of its respective interests
under the VFN and the Basic Agreements or its rights under the Basic Agreements
directly or by way of participation, to any Person provided that the same does
not require registration under the Securities Act of 1933, as amended.
(e) Any action permitted to be taken by, or notice required or permitted to
be given to or by Victory shall be sufficient for all purposes of the Basic
Agreements if taken by, or given to or by, the Funding Agent on behalf of
Victory.
58
IN WITNESS WHEREOF, the parties hereto have executed this Second Amended
and Restated Security and Funding Agreement as of the date set forth on the
first page hereof.
AMERICREDIT MANHATTAN TRUST, as
Borrower
By: Bankers Trust (Delaware), solely
in its capacity as Trustee
By:
---------------------------------
Name:
Title:
THE CHASE MANHATTAN BANK,
as Administrative Agent on behalf
of the Secured Parties
By:
---------------------------------
Name:
Title:
THE CHASE MANHATTAN BANK,
as PARCO Funding Agent
By:
---------------------------------
Name:
Title:
PARK AVENUE RECEIVABLES
CORPORATION,
as a Secured Party
By:
---------------------------------
Name:
Title:
ING BARING (U.S.) CAPITAL
MARKETS, LLC,
as HLS Funding Agent
By:
---------------------------------
Name:
Title:
HOLLAND LIMITED
SECURITIZATION, INC.,
as a Secured Party
By:
---------------------------------
Name:
Title:
EIFFEL FUNDING, LLC,
as a Secured Party
By: Global Securitization Services,
LLC, its Manager
By:
---------------------------------
Name:
Title:
CDC FINANCIAL PRODUCTS INC.,
as Eiffel Funding Agent
By:
---------------------------------
Name:
Title:
By:
---------------------------------
Name:
Title:
VICTORY RECEIVABLES CORPORATION,
as a Secured Party
By:
---------------------------------
Name:
Title:
THE BANK OF TOKYO-MITSUBISHI,
LTD., NEW YORK BRANCH, as
a Funding Agent
By:
---------------------------------
Name:
Title:
EXHIBIT A
FORM OF
VARIABLE FUNDING NOTE
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "ACT"). ANY RESALE OF TRANSFER OF THIS NOTE WITHOUT
REGISTRATION THEREOF UNDER THE ACT MAY ONLY BE MADE IN A TRANSACTION EXEMPT
FROM THE REGISTRATION REQUIREMENTS OF THE ACT AND (A) TO AN INSTITUTIONAL
"ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE 501(a)(1), (2), (3) OR (7)
OF REGULATION D OF THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT") OR (B) TO A PERSON WHO THE TRANSFEROR REASONABLY BELIEVES IS A
QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A UNDER THE
SECURITIES ACT THAT IS AWARE THAT THE RESALE OR OTHER TRANSFER IS BEING
MADE IN RELIANCE ON RULE 144A.
April 27, 2001
Reference is hereby made to that certain Second Amended and Restated
Security and Funding Agreement, dated as of April 27, 2001 (as amended,
supplemented or otherwise modified and in effect from time to time, the
"Security and Funding Agreement") by and among AmeriCredit Manhattan Trust, a
------------------------------
Delaware business trust, as borrower (the "Borrower"), The Chase Manhattan Bank,
--------
a New York banking corporation, as administrative agent (in such capacity, the
"Administrative Agent") and as securities intermediary, and the several funding
--------------------
agents, lenders and financial institutions party thereto from time to time
(collectively, the "Secured Parties") Capitalized terms used herein and not
---------------
otherwise defined herein shall have the meanings assigned to such terms in, or
incorporated by reference into, the Security and Funding Agreement.
FOR VALUE RECEIVED, the Borrower hereby promises to pay to the order of the
Administrative Agent, for the account of and for the benefit of the Secured
Parties at the principal office of the Administrative Agent at ▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Structured Finance
Services, a principal sum equal to SIX HUNDRED SEVENTY FIVE MILLION
A-1
DOLLARS ($675,000,000), in lawful money of the United States of America and in
immediately available funds.
The date and amount of each Funding extended by the Secured Parties to the
Borrower under the Security and Funding Agreement, and each payment of principal
thereof, shall be recorded by the Administrative Agent, for the account of the
applicable Secured Parties, on its books and, prior to any transfer of this Note
(or, at the discretion of the Secured Parties, at any other time), indorsed by
the Administrative Agent, on behalf of the Secured Parties, on the schedule
attached hereto or on any continuation thereof. Although the stated principal
amount of this Note is as stated above, this Note shall be enforceable only with
respect to the Borrower's obligation to pay the principal hereof to the extent
of the unpaid principal amount of the Fundings outstanding under the Security
and Funding Agreement at the time such enforcement shall be sought.
Carrying Costs in respect of the outstanding principal amount of this Note
shall accrue at the rate or rates from time to time in effect pursuant to the
Security and Funding Agreement and payable to the Administrative Agent for the
benefit of the Secured Parties of such Carrying Costs on the dates and in the
manner provided for in the Sale and Servicing Agreement and the Security and
Funding Agreement; provided that, in all events, Carrying Costs constituting
--------
Accrued Discount shall be payable by the Borrower on any day on which
outstanding Commercial Paper issued by a CP Lender to fund its Net Investment
matures. Carrying Costs due and payable hereunder shall be payable in accordance
with the priorities set forth in Section 6.8 of the Sale and Servicing
Agreement.
Principal in an amount equal to the Targeted Monthly Principal Payment, if
any, will be due and payable on each Distribution Date in accordance with the
priorities set forth in Section 6.8 of the Sale and Servicing Agreement. Unless
otherwise due and payable on an earlier date in accordance with the terms of the
Basic Agreements, the entire outstanding principal amount of this Note and
accrued interest thereon will be due and payable on the Distribution Date
occurring in the calendar month seventy-eight (78) months following the
Commitment Expiry Date; provided however that the principal amount of any same
-------- -------
day Funding shall be due no later than the fifth Business Day immediately
following such same day Funding date.
Following the occurrence of a Termination Event, the Administrative Agent
may, with the consent of the Required Lending Groups, or shall, at the direction
of the Required Lending Groups, declare all amounts due hereunder to be
immediately due and payable and exercise all remedies available to it pursuant
to the
A-2
Basic Agreements and applicable law; provided that, upon the occurrence of an
--------
Insolvency Event with respect to the Borrower, all such amounts immediately
shall become due and owing automatically without the need for presentment,
demand, protest or other notice of any kind, all of which are hereby waived by
the Borrower.
The Borrower's obligation to make payments hereunder shall be a limited
recourse obligation of the Borrower, payable solely from the Collateral, and no
recourse shall be had hereunder to the Borrower for payment hereunder except to
the extent of the Collateral. This Note does not purport to summarize the
Security and Funding Agreement or the other Basic Agreements, and reference is
hereby made to such agreements for information with respect to the interests,
rights, benefits, obligations, proceeds and duties evidenced hereby.
The Borrower shall pay all costs of collection of any amount due hereunder
when incurred including, without limitation, reasonable attorney's fees and
expenses, and including all costs and expenses actually incurred in connection
with the pursuit by the Administrative Agent, on behalf of and at the direction
of the Secured Parties, of any of their rights or remedies referred to herein or
in the Security and Funding Agreement, or the protection of, or realization
upon, Collateral, and all such costs shall be payable in accordance with the
terms of the Security and Funding Agreement.
The Borrower hereby waives presentment, notice of dishonor, protest and
other notice or formality with respect to this Note.
This Note shall be governed by, and construed in accordance with, the laws
of the State of New York.
A-3
IN WITNESS WHEREOF, the undersigned has executed and delivered this
Variable Funding Note as of the date and year first above written.
AMERICREDIT MANHATTAN TRUST
By: Bankers Trust (Delaware), solely
in its capacity as Trustee
By:
---------------------------------
Name:
Title:
A-4