EXHIBIT 10.4
LIMITED GUARANTEE
This LIMITED GUARANTEE (the "Guarantee") is entered into as of November 22,
2002, by AMERICREDIT CORP., a Texas corporation (the "Guarantor"), in favour of
CIBC MELLON TRUST COMPANY, a trust company formed under the laws of Canada, in
its capacity as Trustee of AmeriCredit Canada Automobile Receivables Trust (in
such capacity together with its permitted successors and assigns in such
capacity, the "Trustee").
PRELIMINARY STATEMENTS. AmeriCredit Financial Services of Canada Ltd.
("AmeriCredit Canada"), in its capacity as Seller (the "Seller"), AmeriCredit
Canada, as Servicer, AmeriCredit Canada Automobile Receivables Trust, as Issuer
(in such capacity, the "Issuer"), Bank One, NA, as Backup Servicer, and BNY
Trust Company of Canada, in its capacity as the indenture trustee of the Issuer
(the "Indenture Trustee") have entered into a Sale and Servicing Agreement dated
as of the date hereof (as amended, modified or replaced from time to time, the
"Sale and Servicing Agreement") pursuant to which (i) the Seller has agreed to
sell, transfer and assign to the Issuer all of its right, title and interest in
and to the Purchased Assets on the terms described therein, (ii) AmeriCredit
Canada, as the initial Servicer, has agreed to manage, service, administer,
collect and enforce the Receivables on behalf of the Issuer, and (iii)
AmeriCredit Canada is obligated to purchase or repurchase Receivables pursuant
to Section 3.2 of the Sale and Servicing Agreement.
The Guarantor has agreed to enter into this Guarantee to guarantee (i) the
performance of the duties and responsibilities of the Servicer under the Sale
and Servicing Agreement, and (ii) the obligations of AmeriCredit to purchase or
repurchase Receivables pursuant to Section 3.2 of the Sale and Servicing
Agreement.
Now therefore, the Guarantor hereby agrees:
1.1 DEFINITIONS
Unless otherwise defined in this Guarantee, all defined terms used in this
Guarantee shall have the meanings ascribed to such terms in the Sale and
Servicing Agreement.
2.1 GUARANTEE OF OBLIGATIONS
(a) The Guarantor hereby absolutely, irrevocably and unconditionally
guarantees to the Trustee, as agent, nominee and bailee for the Series
C2002-1 Debtholders: (i) the full and prompt payment and performance of
all duties and obligations to be performed by AmeriCredit Canada and
each successor and assign of AmeriCredit Canada which is an Affiliate
of the Guarantor, in each case, in its capacity as Servicer under the
Sale and Servicing Agreement (AmeriCredit Canada and each such
successor and assign, in such capacity, the "Servicer"), including the
payment when due of all amounts owing by the Servicer thereunder or in
connection therewith, and (ii) the full and prompt payment and
performance of the obligations, if any, from time to time of
AmeriCredit Canada under
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the Sale and Servicing Agreement to purchase or repurchase Receivables
pursuant to Section 3.2 of the Sale and Servicing Agreement. The
obligations under this Section 2.1 shall be referred to herein as the
"Obligations".
(b) The Guarantor shall have no obligation to (i) guarantee any obligations
of the Obligors under the Receivables, (ii) to guarantee the
performance of any obligations other than the Obligations, or (iii) to
guarantee the performance of any obligations of a Successor Servicer
under the Sale and Servicing Agreement unless such Successor Servicer
is an Affiliate of the Guarantor.
3.1 UNCONDITIONALITY; IRREVOCABILITY
(a) This is an absolute, unconditional and continuing guarantee of payment
and performance of all Obligations, and the Guarantor agrees that its
obligations under this Guarantee shall be irrevocable. The dissolution,
insolvency or adjudication of bankruptcy of the Guarantor shall not
revoke this Guarantee.
(b) Upon and after any failure by AmeriCredit Canada (or any applicable
Affiliate of the Guarantor) to pay or perform any of the Obligations,
the Trustee will be entitled to make demand upon the Guarantor for the
payment or performance of any such Obligations which have not been paid
or performed, and after any such demand is made upon the Guarantor, the
Guarantor will promptly pay or perform, as applicable, any such
Obligations which have not been paid or performed.
(c) No act or thing need occur to establish the liability or obligation of
the Guarantor hereunder, and no act or thing, except full payment,
discharge and performance of all Obligations, shall in any way
exonerate the Guarantor hereunder or modify, reduce, limit or release
the liability of Guarantor hereunder. The Guarantor waives all
presentments, demands for performance, notices of dishonor and notices
of acceptance of this Guarantee. The Trustee shall not be required
first to resort to performance or payment of the Obligations by
AmeriCredit Canada, the Servicer or other Person, or their properties,
before enforcing this Guarantee. Until payment in full of the
Obligations, the Obligations of the Guarantor under this Guarantee
shall not be affected, modified or impaired upon the happening from
time to time of any event, including, without limitation, the events
described in Section 4.1 herein, whether or not with notice to or the
consent of the Guarantor.
(d) The Guarantor further agrees that, if any payment applied hereunder to
the Obligations is thereafter set aside, recovered, rescinded or
required to be returned for any reason (including, without limitation,
the bankruptcy, insolvency, reorganization or liquidation of
AmeriCredit Canada or the Servicer) or declared to be fraudulent or
preferential, the Obligations to which such payment was applied shall
for the purpose of this Guarantee be deemed to have continued in
existence, notwithstanding such payment, and this Guarantee shall be
enforceable as to such Obligations as fully as if such payment had
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never been made. The provisions of this Section 3.1(d) hereof shall
survive any termination of this Guarantee.
4.1 CONTINUATION AND VALIDITY OF OBLIGATIONS
The liability of the Guarantor shall not be affected or impaired by any of the
following events: (a) the validity, enforceability, discharge, disaffirmance,
settlement or compromise (by any Person, including any trustee in bankruptcy or
other similar official) of the Obligations or of the Sale and Servicing
Agreement, (b) the absence of any attempt to collect the Obligations from
AmeriCredit Canada or the Servicer or any guarantor or other Person, (c) the
waiver or consent by the Trustee or any other Person with respect to any
provision of any instrument or agreement evidencing the Obligations, any delay
or lack of diligence in the enforcement of the Obligations, or any failure to
institute proceedings, file a claim, give any required notices or otherwise
protect the Obligations, (d) any change of the time, manner or place of payment
or performance, or any other term of any of the Obligations, (e) any grant of
time, renewals, extensions, compromises, concessions, waivers, releases,
discharges and other indulgences to AmeriCredit Canada or the Servicer, (f) any
law, regulation or order of any jurisdiction affecting any term of any of the
Obligations or rights of the Trustee with respect thereto, (g) the failure by
the Trustee to take any steps to perfect and maintain perfected its interest in
any of the Purchased Assets including, without limitation, the Receivables, the
Receivable Files, Financed Vehicles or in any other security or collateral
related to the Obligations, (h) the commencement of any bankruptcy, insolvency,
reorganization, liquidation, winding-up or similar proceeding with respect to
AmeriCredit Canada or the Servicer or any Affiliate of AmeriCredit Canada, the
Guarantor or the Servicer, (i) any full or partial release of, compromise or
settlement with, or agreement not to sue, AmeriCredit Canada or the Servicer or
any guarantor or other person liable in respect of any Obligations, (j) any
release, surrender, cancellation or other discharge of any evidence of the
Obligations or the acceptance of any instrument in renewal or substitution
therefor, (k) any collection, sale, lease or disposition of, or any other
enforcement of or realization on, any Purchased Assets including, without
limitation, any Receivable or Financed Vehicle, (l) any assignment, pledge or
other transfer of the Obligations or any evidence thereof, (m) any acceptance of
collateral security, guarantors, accommodation parties or sureties for any or
all Obligations, (n) any change in the existing relationship between the
Guarantor and AmeriCredit Canada or the Servicer including, without limitation,
any sale or other transfer of the shares of AmeriCredit Canada or the Servicer
by the Guarantor, (o) any change in the control or ownership or name, objects,
businesses, assets, capital structure or constitution of the Guarantor,
AmeriCredit Canada or the Servicer, (p) any merger, consolidation or
amalgamation of the Guarantor, AmeriCredit Canada or the Servicer with any
Person, (q) any assignment, delegation or subcontracting of the duties or
obligations of AmeriCredit Canada or the Servicer under the Sale and Servicing
Agreement or (r) any legal or equitable discharge or defense of the Guarantor.
The Guarantor waives any and all defenses and discharges available to a surety,
guarantor or accommodation co-obligor.
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5.1 REPRESENTATIONS AND WARRANTIES
The Guarantor hereby represents and warrants to the Trustee as follows:
(a) Organization, Etc. The Guarantor is a corporation duly organized, validly
existing and in good standing under the laws of the state of its incorporation
and has full corporate power, authority and legal right to carry on its business
as it is now being conducted and to execute, deliver and perform this Guarantee.
The Guarantor is duly qualified as a foreign corporation in good standing under
the laws of each other jurisdiction in which the nature of its business requires
such qualification and in which failure to so qualify would render this
Guarantee unenforceable or would have a material adverse effect on the
Guarantor's ability to perform its obligations under this Guarantee.
(b) Authorization/Valid Agreement. The Guarantor has the power and authority to
execute and deliver this Guarantee and to carry out its terms. The execution,
delivery and performance of this Guarantee have been duly authorized by all
required corporate or other action on the part of the Guarantor, and this
Guarantee constitutes the legal, valid and binding obligation of the Guarantor,
enforceable in accordance with its terms, except as enforceability may be
limited by bankruptcy, insolvency, reorganization, conservatorship,
receivership, liquidation or other similar laws affecting the enforcement of
creditors' rights generally and by general equitable principles.
(c) No Conflicts. The execution, delivery and performance by the Guarantor of
this Guarantee does not and will not (i) contravene its certificate or articles
of incorporation or bylaws, (ii) violate any provision of, or require any
filing, registration, consent or approval under, any law, rule, regulation,
order, writ, judgment, injunction, decree, determination or award presently in
effect having applicability to the Guarantor, (iii) result in a breach of or
constitute a default or require any consent under any indenture or loan or
credit agreement or any other agreement, lease or instrument to which the
Guarantor is a party or by which it or its properties may be bound or affected
or (iv) result in, or require, the creation or imposition of any lien upon or
with respect to any of the properties now owned or hereafter acquired by the
Guarantor.
(d) No Proceedings. There are no proceedings or investigations pending, or, to
the best knowledge of the Guarantor, threatened against the Guarantor before any
governmental authority (i) asserting the invalidity of this Guarantee, (ii)
seeking to prevent the consummation of the transactions contemplated by this
Guarantee, (iii) seeking any determination or ruling that would adversely affect
the performance by the Guarantor of its obligations under this Guarantee or (iv)
seeking any determination or ruling that would adversely affect the validity or
enforceability of this Guarantee.
(e) No Consents. No consent, approval, authorization or order of or declaration,
filing or registration with any governmental authority or other Person is
required in connection with the execution, delivery or performance of this
Guarantee, except such as have been duly made or obtained.
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(f) Benefits. The Guarantor has a direct and substantial economic interest in
each of AmeriCredit Canada and the Servicer and expects to derive substantial
benefits therefrom and from the transactions described in the Sale and Servicing
Agreement and this Guarantee shall be effective and enforceable by the Trustee
without regard to the receipt, nature or value of any such benefits.
(g) Solvency. The Guarantor is not insolvent nor will it be rendered insolvent
by virtue of entering into or carrying out this Guarantee.
6.1 INDEPENDENT OBLIGATIONS
The obligations of the Guarantor hereunder are undertaken as primary obligor and
independently of the obligations of AmeriCredit Canada and the Servicer, or any
other obligor, guarantor or Person, and action or actions may be brought or
prosecuted directly against the Guarantor whether or not action is brought first
or at all against AmeriCredit Canada, the Servicer, or any other Obligor,
guarantor or Person, against any collateral security or any other circumstance
whatsoever, and whether or not AmeriCredit Canada, the Servicer or any Obligor,
guarantor or Person is joined in any such action or actions, or any claims or
demands are made or are not made, or any action is taken on or against
AmeriCredit Canada, the Servicer, any other obligor, guarantor or Person or any
collateral security or otherwise.
7.1 WAIVERS
The Guarantor waives any and all defenses, claims, setoffs and discharges of
AmeriCredit Canada, the Servicer, or any other obligor, pertaining to the
Obligations. Without limiting the generality of the foregoing or any other
provision hereof, to the fullest extent permitted by applicable law, the
Guarantor hereby waives: (a) any defense arising by reason of any invalidity or
unenforceability of either AmeriCredit Canada or the Servicer's obligations in
respect of the Sale and Servicing Agreement, any manner in which the Trustee has
exercised (or not exercised) any rights and remedies under the Sale and
Servicing Agreement, or any cessation from any cause whatsoever of the liability
of any obligor, guarantor or Person; (b) all presentments, demands for
performance, notices of nonperformance, protests, notices of protest, notices of
dishonor and notices of acceptance of the Sale and Servicing Agreement; (c) any
release of any of the Purchased Assets provided under the Sale and Servicing
Agreement; (d) notice of any indulgences, extensions, consents or waivers given
to AmeriCredit Canada, the Servicer or any other obligor, guarantor or Person,
notice of any default or Servicer Termination Event under the Sale and Servicing
Agreement; (e) any right or claim of right to cause the Trustee to proceed
against AmeriCredit Canada, the Servicer or any other obligor, guarantor or
Person in any particular order, to proceed against or exhaust any collateral
security held by the Trustee at any time or to pursue any other right or remedy
whatsoever at any time; (f) any requirement of diligence or promptness on the
Trustee's part in (X) making any claim or demand on or commencing suit against
AmeriCredit Canada, the Servicer or any other obligor, guarantor or Person, and
(Y) otherwise enforcing the Trustee's rights in respect of Sale and Servicing
Agreement; (g) any defense of waiver, release, discharge in bankruptcy, statute
of limitations, res
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judicata, statute of frauds, anti-deficiency statute, fraud, usury, illegality
or unenforceability which may be available to any person liable in respect of
any Obligations, or any setoff available against, the Trustee to AmeriCredit
Canada, the Servicer or any other such person, whether or not on account of a
related transaction and (h) any duty of the Trustee to advise the Guarantor of
any information known to the Trustee regarding the financial condition of
AmeriCredit Canada or the Servicer or any other circumstance, it being agreed
that the Guarantor assumes responsibility for being and keeping informed of such
condition or any such circumstance. Without limiting the generality of the
foregoing, to the fullest extent permitted by applicable law, the Guarantor
specifically waives all defenses the Guarantor may have based upon any election
of remedies by the Trustee which destroys the Guarantor's rights to proceed
against AmeriCredit Canada, the Servicer or any other obligor, guarantor or
Person for reimbursement, contribution or otherwise, including any loss of
rights that it may suffer by reason of any rights, powers, remedies or defenses
of AmeriCredit Canada or the Servicer in connection with any laws limiting,
qualifying or discharging indebtedness of or remedies against AmeriCredit Canada
or the Servicer, and the Guarantor hereby agrees not to exercise or pursue, so
long as any of the Obligations remain unsatisfied, any right to reimbursement,
subrogation, or contribution from AmeriCredit Canada or the Servicer in respect
of payments hereunder.
8.1 SIGNIFICANCE OF WAIVERS
The Guarantor represents, warrants and agrees that each of the waivers set forth
herein are made with the Guarantor's full knowledge of its significance and
consequences, with the understanding that events giving rise to any defense
waived may diminish, destroy or otherwise adversely affect rights which the
Guarantor otherwise may have against AmeriCredit Canada, the Servicer or any
other obligor, guarantor or Person, or against collateral, and that under the
circumstances the waivers are reasonable.
9.1 PAYMENT
(a) The Guarantor agrees to make immediate payment to the Trustee the
Obligations owing or payable at that time upon demand for payment
therefore by the Trustee to the Guarantor.
(b) Each payment to be made by the Guarantor hereunder in respect of the
Obligations shall be made:
(1) without set-off or counterclaim; and
(2) free and clear of and without deduction or withholding for or on
account of any present and future taxes, levies, imposts, stamp
taxes, duties, charges to tax, fees, deductions, withholdings and
any conditions or restrictions resulting in charges to tax and
all penalties, interest and other payments on or in respect
thereof ("Tax" or "Taxes") unless the Guarantor is compelled by
law to so deduct or withhold such Taxes.
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10.1 TAXES
(a) All Taxes in respect of this Guarantee or any amounts payable or paid
under this Guarantee shall be paid by the Guarantor when due and, in
any event prior to the date on which penalties attach thereto.
(b) Without limiting the generality of the foregoing, if any Taxes (other
than those imposed on or measured by the net income or capital of the
Certificateholders, as applicable, by the jurisdictions under the laws
of which they are organized, are resident or carry on business) or
amounts in respect thereof must be deducted or withheld from any
amounts payable or paid by the Guarantor hereunder, the Guarantor shall
pay such additional amounts as may be necessary to ensure that the
Trustee, as applicable, receives a net amount equal to the full amount
which it would have received had payment (including of any additional
amounts payable under this Section 10.1(b)) not been made subject to
such Taxes provided that the Trustee shall not receive any additional
amounts under this Section 10.1(b) to the extent that the aggregate
amount received by the Trustee would exceed the aggregate amount that
the Trustee would have received under the applicable provision of the
Sale and Servicing Agreement. Within thirty (30) days of each payment
by the Guarantor hereunder of Taxes or in respect of Taxes, the
Guarantor shall deliver to the Trustee satisfactory evidence (including
originals, or certified copies, of all relevant receipts) that such
Taxes have been duly remitted to the appropriate authority or
authorities. If the Guarantor fails to pay such Taxes when due, the
Guarantor shall indemnify the Trustee upon demand for such Taxes.
11.1 REIMBURSEMENT
The Guarantor shall pay or reimburse all costs and expenses (including
reasonable legal fees and legal expenses) incurred by the Trustee in connection
with the protection, defense or enforcement of this Guarantee in any litigation
or bankruptcy or insolvency proceedings.
12.1 CUMULATIVE LIABILITY
The liability of the Guarantor under this Guarantee is in addition to and shall
be cumulative with all other liabilities of the Guarantor as Guarantor, surety,
endorser, accommodation co-obligor or otherwise of any Obligations or obligation
of AmeriCredit Canada or the Servicer, without any limitation as to amount.
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13.1 NON-PETITION COVENANT
The Guarantor shall not petition or otherwise invoke, or join any other Person
in petitioning or invoking, the process of any court or government authority for
the purpose of commencing or sustaining a case against AmeriCredit Canada, any
other Affiliate of the Guarantor or the Servicer under any bankruptcy,
insolvency or similar law or appointing a receiver, liquidator, assignee,
trustee, custodian, sequestrator or other similar official of AmeriCredit
Canada, any other Affiliate of the Guarantor or the Servicer or any substantial
part of its respective property, or ordering the winding up or liquidation of
the affairs of AmeriCredit Canada, any other Affiliate of the Guarantor or the
Servicer.
14.1 AMENDMENTS
This Guarantee may not be waived, modified, amended, terminated, released or
otherwise changed except as agreed in writing by the Guarantor and the Trustee.
The Guarantor may not assign its obligations hereunder without the prior written
consent of the Trustee.
15.1 GOVERNING LAW
This Guarantee shall be governed by, and construed in accordance with, the laws
of the State of Texas (without giving effect to the conflict of laws principles
thereof).
16.1 JURISDICTION; JURY TRIAL WAIVER; AGENT FOR SERVICE OF PROCESS.
Any legal action or proceeding with respect to this agreement may be brought in
the courts of the State of Texas and by execution and delivery of this
Guarantee, the Guarantor consents, for itself and in respect of its property, to
the non-exclusive jurisdiction of those courts. The Guarantor irrevocably
waives, to the maximum extent permitted by law, any objection, including any
objection to the laying of venue or based on the grounds of forum non
convenience, which it may now or hereafter have to the bringing of any action or
proceeding in such jurisdiction in respect of this Guarantee or any document
related hereto. The Guarantor waives personal service of any claim, notice of
motion or application, summons, complaint or other process, which may be made by
any other means permitted by Texas law. The Guarantor hereby irrevocably waives
all right to trial by jury in any action, proceeding or counterclaim (whether
based on contract, tort or otherwise) arising out of or relating to this
Guarantee, the transactions contemplated hereby or the actions of the Trustee in
the negotiation, administration, performance or enforcement hereof.
17.1 DELIVERY BY TELECOPIER
Any party may deliver an executed copy of this Guarantee by telecopier and that
party shall promptly deliver to the other parties an originally executed copy of
this Guarantee.
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18.1 SEVERABILITY
Any invalidity or unenforceability of any provision or application of this
Guarantee shall not affect other lawful provisions and application hereof, and
to this end the provisions of this Guarantee are declared to be severable.
19.1 BENEFITS
This Guarantee shall be effective as of the date hereof, without further act,
condition or acceptance by the Trustee, AmeriCredit Canada or the Servicer,
shall be binding upon the Guarantor and the successors and assigns of the
Guarantor and shall inure to the benefit of the Trustee and its successors and
assigns.
20.1 WAIVER OF SUBROGATION, REIMBURSEMENT, ETC.
The Guarantor hereby irrevocably waives any claim or other rights that it may
now or hereafter acquire against the Servicer or AmeriCredit Canada that arise
from the existence, payment, performance or enforcement of the Obligations under
this Guarantee or the Sale and Servicing Agreement including, without
limitation, any right of subrogation, reimbursement, exoneration, contribution
or indemnification and any right to participate in any claim or remedy of the
Trustee against AmeriCredit Canada or the Servicer, or any collateral, whether
or not such claim, remedy or right arises in equity or under contract, statute
or common law including, without limitation, the right to take or receive from
AmeriCredit Canada or the Servicer, directly or indirectly, in cash or other
property or by set-off or in any other manner, payment or security on account of
such claim, remedy or right; provided, however, that such waiver shall terminate
at such time, if any, as the Obligations have been paid and performed in full
and any other amounts payable under this Guarantee have been paid in full and
all obligations of AmeriCredit Canada and the Servicer under the Sale and
Servicing Agreement have terminated.
21.1 CURRENCY OF PAYMENT
Any payment to be made by the Guarantor hereunder shall be paid in Canadian
dollars.
22.1 ENTIRE AGREEMENT
This Guarantee, including all documents contemplated hereby, constitutes the
entire agreement between the parties with respect to the subject matter hereof
and supersedes all prior negotiations, undertakings, representations and
understandings.
23.1 SUCCESSORS AND ASSIGNS
This Guarantee shall be binding upon and enure to the benefit of the Guarantor,
the Trustee and their respective successors and permitted assigns, except that
the Guarantor may not assign any of its obligations hereunder. The Trustee shall
be entitled to assign its rights under this Guarantee
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to the Indenture Trustee and, upon such assignment, the Indenture Trustee shall
be entitled to enforce the obligations of the Guarantor under this Guarantee.
24.1 TERMINATION
This Guarantee shall terminate upon payment in full of all amounts owed to the
Trustee pursuant to the terms of this Guarantee and the Sale and Servicing
Agreement and all obligations of AmeriCredit Canada and the Servicer under the
Sale and Servicing Agreement have terminated; provided, however, that the
provisions of Section 3.1(d), 11.1 and 16.1 hereof shall survive any termination
of this Guarantee.
25.1 NOTICES
All demands, notices and communications to the Guarantor hereunder shall be in
writing, personally delivered, or sent by telecopier (subsequently confirmed in
writing), reputable overnight courier or mailed by certified mail, return
receipt requested, and shall be deemed to have been given upon receipt, to
AmeriCredit Corp., 801 Cherry Street, Fort Worth, Texas 76102, Attention: Chief
Financial Officer, or such other address as shall be designated by the Guarantor
in a written notice delivered to the Trustee.
IN WITNESS OF WHICH, this Guarantee has been duly executed by the
Guarantor as of the date and year first above written.
AMERICREDIT CORP.
By:
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Name:
Title: