EXHIBIT 10.74
EXECUTION COPY
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CREDIT AGREEMENT
Dated as of August 15, 2002
among
AFS FUNDING CORP.,
and
AFS SENSUB CORP.
as the Borrowers
AMERICREDIT CORP., and
AMERICREDIT FINANCIAL SERVICES, INC.,
each as a Contingent Obligor
THE FINANCIAL INSTITUTIONS
FROM TIME TO TIME PARTY HERETO AS LENDERS
as the Lenders
DEUTSCHE BANK AG, NEW YORK BRANCH,
as an Agent,
and
THE OTHER AGENTS FROM TIME TO TIME PARTY HERETO
DEUTSCHE BANK TRUST COMPANY AMERICAS,
as Lender Collateral Agent
and
DEUTSCHE BANK TRUST COMPANY AMERICAS
as the Administrative Agent
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TABLE OF CONTENTS
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LIST OF SCHEDULES
Schedule I List of Applicable Lending Offices
Schedule II Cumulative Net Loss Ratio Triggers
Schedule III Approved Interest Rate Cap Counterparties
Schedule IV Certain Information Regarding Designated Series
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LIST OF EXHIBITS
Exhibit A Form of Note
Exhibit B Form of Notice of Borrowing
Exhibit C Form of Notice of Conversion/Continuation
Exhibit D Form of Assignment and Assumption Agreement
Exhibit E Form of Confidentiality Agreement
Exhibit F Form of Joinder Supplement
Exhibit G Form of Interest Rate Hedge Assignment Acknowledgment
Exhibit H Form of Interest Rate Cap
Exhibit I Form of Agreed Upon Procedures Letter
Exhibit J Form of Revolver Servicer's Certificate
Exhibit K Form of Revolver Borrowing Base Certificate
Exhibit L-1 Form of Guaranty
Exhibit L-2 Form of Limited Guaranty
Exhibit M Form of Collateral Summary Report
Exhibit N Form of Monthly Compliance Certificate
LIST OF APPENDICES
Appendix A Certain Definitions
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CREDIT AGREEMENT, dated as of August 15, 2002, by and among AFS FUNDING
CORP., a Nevada corporation, ("AFS Funding"), AFS SENSUB CORP., a Nevada
corporation ("SenSub"; together with AFS Funding, each a "Borrower" and
collectively, the "Borrowers"), AMERICREDIT CORP., a Texas corporation ("ACC"),
AMERICREDIT FINANCIAL SERVICES, INC., a Delaware corporation ("ACFS"; together
with ACC, each a "Contingent Obligor" and collectively, the "Contingent
Obligors"), the LENDERS from time to time parties hereto, DEUTSCHE BANK AG, a
German banking corporation acting through its New York Branch ("DBNY"), as an
agent, and the other AGENTS for the Lender Groups from time to time parties
hereto (each such party, together with their respective successors in such
capacity, an "Agent"), DEUTSCHE BANK TRUST COMPANY AMERICAS, a New York banking
organization ("DBTCA"), as collateral agent under the Security Agreement
referred to below (together with its successors in such capacity, the "Lender
Collateral Agent"), and DBTCA, as administrative agent for the Lenders (together
with its successors in such capacity, the "Administrative Agent").
RECITALS
1. The Borrowers have sold and contemplate selling, from time to time,
pools of receivables to various trusts which have issued and may issue various
series of notes or certificates (each a "Series") which will be repaid by the
proceeds of, or represent an interest in, as the case may be, such pools of
receivables.
2. The Borrowers have requested that the Lenders establish a revolving
line of credit to the Borrowers, which line of credit will be secured by certain
securities rated at least Ba2 by Moody's and BB by S&P of various Series and
will be secured, ratably with certain other obligations of the Borrowers, by
certain amounts payable to the Borrowers with respect to other Series.
3. Upon the terms and conditions contained in this Agreement and the
other Transaction Agreements, the Lenders are willing to provide such a line of
credit to the Borrowers.
4. Pursuant to the Security Agreement (as defined herein), the Lender
Collateral Agent, for the benefit of the Secured Parties (as such term is
defined in the Security Agreement), as security for the obligations of the
Borrowers under this Agreement, shall hold a security interest in certain
securities of various Series rated at least Ba2 by Moody's and BB by S&P and
certain other property of the Borrowers.
5. Pursuant to the Master Collateral and Intercreditor Agreement (as
defined herein), Deutsche Bank Trust Company Americas, as collateral agent (the
"Master Collateral Agent"), shall hold a security interest in certain amounts
payable to the Borrowers with respect to certain Series for the benefit of the
Lenders and certain other creditors of the Borrowers.
6. Each of the Borrowers is a Subsidiary of ACC and AFCS and as such,
each Contingent Obligor will benefit from the extensions of credit to the
Borrowers under this Agreement.
AGREEMENTS
In consideration of the premises and of the agreements herein
contained, and for other good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the Borrowers, the Contingent
Obligors, the Lenders, the Agents, the Lender Collateral Agent and the
Administrative Agent hereby agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01 Certain Defined Terms. Certain capitalized terms used in
this Agreement and not otherwise defined herein shall have the respective
meanings set forth in Appendix A hereto or, if not defined therein, shall have
the respective meanings set forth in the Security Agreement.
SECTION 1.02 Computation of Time Periods. In this Agreement in the
computation of periods of time from a specified date to a later specified date,
the word "from" means "from and including" and the words "to" and "until" each
means "to but excluding." Periods of days referred to in this Agreement shall be
counted in calendar days unless Business Days are expressly prescribed and
references in this Agreement to months and years shall be to calendar months and
calendar years unless otherwise specified.
SECTION 1.03 Accounting Terms. All accounting terms not specifically
defined otherwise herein shall have the meaning customarily given in accordance
with GAAP, and all financial computations hereunder shall be computed, unless
specifically provided otherwise herein, in accordance with GAAP.
SECTION 1.04 Other Terms. Any references herein to Exhibits, Schedules,
Appendices, Sections or Articles are references to Exhibits, Schedules,
Appendices, Sections or Articles of this Agreement, unless otherwise specified.
The words "including" and "include" are deemed to be followed by the words
"without limitation."
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
SECTION 2.01 The Line of Credit; Notes.
(a) On and subject to the terms and conditions hereinafter set forth,
during the Commitment Period, the Borrowers shall be entitled, from time to time
prior to the Termination Date, to request Advances from the Lenders. The Conduit
Lenders may, and to the extent a Conduit Lender has elected not to make an
Advance, the Committed Lenders for such Conduit Lender, subject to and in
accordance with subsection 2.02(e), shall make such Advances to the Borrowers as
herein provided. Each Lender's pro rata share of any Borrowing hereunder shall
be as set forth in Section 2.02. The Borrowers may not request Advances, and a
Conduit Lender may elect not to make, and no Committed Lender shall be required
to make, Advances, if after giving effect to such Advance the aggregate
outstanding principal amount of such Conduit
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Lender's Advances would exceed its Maximum Conduit Amount or if the aggregate
outstanding principal amount of such Committed Lender's Advances would exceed
its Commitment Amount or if the aggregate outstanding principal amount of all
Advances owing to all Lenders in the Lender Group related to such Conduit Lender
or Committed Lender (as the case may be) would exceed the sum of the Commitment
Amounts of all Committed Lenders in such Lender Group or if the aggregate
outstanding principal amount of all Advances would exceed the Borrowing Base.
Within the limits set forth in this Agreement and within the limits of the
Borrowing Base and of each Committed Lender's Commitment Amount and each Conduit
Lender's Maximum Conduit Amount and each Lender Group's maximum amount of
Advances, as applicable, during the Commitment Period the Borrowers may borrow,
repay pursuant to Section 2.04 and reborrow under this Section 2.01 and Section
2.02. Subject to the terms of Section 2.04, prior to the Facility Maturity Date
and notwithstanding the termination of the Commitment Period, any outstanding
Advances may, at the option of the Borrowers, be Converted or Continued pursuant
to the terms of Section 2.07.
(b) The Advances made by each Lender shall be evidenced by a promissory
note of the Borrowers, substantially in the form of Exhibit A, with appropriate
insertions therein as to date and principal amount (each, as indorsed or
modified from time to time, a "Note" and, collectively with the Notes of all
other Lenders, the "Notes"), payable to the order of such Lender or the Agent
for such Lender (as such Lender may elect), dated the Closing Date (or, if
later, the date of the Assignment and Assumption or Joinder Supplement pursuant
to which such Lender became a party to this Agreement) and in the stated
principal amount equal to the Commitment of such Lender or the Maximum Conduit
Amount for the Lender Group of which such Agent is a part, as the case may be.
(c) In the event the Revolver Borrowing Base is less than the aggregate
outstanding principal amount of Advances, the portion of the Advances equal to
such deficiency shall be due and payable immediately, together with all accrued
and unpaid amounts due under this Agreement or other Transaction Documents with
respect to that portion of the Advances, including without limitation any
amounts which may be due under Section 2.13. In the event that a Senior
Borrowing Base Deficiency is outstanding, all Advances together with all accrued
and unpaid amounts due under this Agreement or other Transaction Documents with
respect to such Advances, including without limitation any amounts which may be
due under Section 2.13 shall become immediately due and payable. Without
limiting the foregoing, the entire outstanding principal amount of all Advances
shall mature and be due and payable on the Facility Maturity Date, together with
all accrued and unpaid interest thereon and all other accrued and unpaid amounts
due under this Agreement and the other Transaction Documents.
(d) The obligation to repay each Advance, and all interest thereon, is
a joint and several obligation of the Borrowers.
SECTION 2.02 Borrowings; Notices of Borrowing and Advances.
(a) The Borrowers shall give the Administrative Agent written notice (a
"Notice of Borrowing") not later than 2:00 p.m. (New York City time) on the
fourth Business Day prior to a Borrowing hereunder if any portion of such
Borrowing is to consist of Eurodollar Rate Advances or, if no portion of the
Borrowing is to consist of Eurodollar Rate Advances, on
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the Business Day prior to such Borrowing. If a Notice of Borrowing is
transmitted by telecopy, the Borrowers shall promptly provide written
confirmation thereof to the Administrative Agent. A Notice of Borrowing shall be
substantially in the form of Exhibit B hereto and shall specify, subject to the
terms and conditions of this Agreement, (i) the date of the proposed Borrowing
(the "Borrowing Date"), (ii) the amount of the proposed Borrowing, (iii) the
Type or Types of the Advances to be made as part of such proposed Borrowing and
(iv) if any portion of the Borrowing is to consist of Eurodollar Rate Advances,
the Interest Period with respect thereto. Each Notice of Borrowing shall be
irrevocable. If the Administrative Agent receives a Notice of Borrowing at or
before 4:00 p.m. (New York City time) on a Business Day, it shall provide each
Agent with a copy thereof on such Business Day, and otherwise it shall provide
each Lender with a copy thereof before 1:00 p.m. (New York City time) on the
following Business Day. Each Agent shall promptly provide each Lender in its
Lender Group with a copy of each Borrowing Notice received by it.
(b) The Borrowing Date specified in any Notice of Borrowing shall be a
Business Day during the Commitment Period.
(c) The amount of any proposed Borrowing shall be at least $10,000,000.
(d) All Advances in respect of a Borrowing specified in a Notice of
Borrowing shall be of the same Type.
(e) On and subject to the terms and conditions of this Agreement,
following receipt by the Administrative Agent and the Agent of a proper Notice
of Borrowing, each Conduit Lender may elect to make an Advance on the applicable
Borrowing Date in an amount equal to its Lending Percentage of the requested
Borrowing. Each Conduit Lender shall notify the Agent for its Lender Group at or
before 11:30 a.m. (New York City time) on the applicable Borrowing Date whether
it has elected to make its Advance pursuant to this Section 2.02(e) in respect
of the Borrowing to be made on such date. In the event that a Conduit Lender
shall not have timely provided such notice, such Conduit Lender shall be deemed
to have elected not to make such purchase. Such Agent shall notify each
Committed Lender for such Conduit Lender on or prior to 12:00 noon, New York
City time, on the applicable Borrowing Date if such Conduit Lender has not
elected to purchase its entire Lending Percentage of the Borrowing, which notice
shall specify (i) the identity of such Conduit Lender, (ii) the portion of the
Borrowing which such Conduit Lender has not elected to purchase as provided
above, and (iii) the respective Liquidity Percentages of such Committed Lenders
on such Borrowing Date (as determined by such Agent in good faith; for purposes
of such determination, such Agent shall be entitled to rely conclusively on the
most recent information provided by such Conduit Lender or its agent or by the
agent for its Support Parties). Subject to receiving such notice and to the
satisfaction of the applicable conditions set forth in Article III hereof, each
of such Conduit Lender's Committed Lenders shall make an Advance on the
applicable Borrowing Date in an amount equal to its Liquidity Percentage of the
Advance which such Conduit Lender has not elected to make.
(f) Each applicable Lender shall (subject to Section 2.02(g) in the
case of Conduit Lenders), before 12:30 p.m. (New York City time) on a Borrowing
Date, make available for the account of its Applicable Lending Office to the
Agent for its Lender Group at its account
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referred to in Section 2.12(a), by wire transfer of immediately available funds,
such Lender's pro rata share of such requested Borrowing. Each Agent shall
promptly notify the Borrowers in the event that any Lender in its Lender Group
either fails to make such funds available to such Agent before such time or
notifies such Agent that it will not make such funds available to such Agent
before such time; provided, however, that no Agent shall have any liability for
failing to give any notice as provided in this sentence. Subject to (x) such
Agent's receipt of such funds and (y) the fulfillment of the applicable
conditions set forth in Article III, as determined by such Agent, each Agent
will by no later than 1:00 p.m. (New York City time) on such Borrowing Date make
such funds available, in the same type of funds received, by wire transfer
thereof to the account designated by the Borrowers in the Notice of Borrowing.
(g) In the event that a Conduit Lender elected to make an Advance on a
Borrowing Date but failed to do so by the time contemplated by Section 2.02(f),
such Conduit Lender shall be deemed to have rescinded its election to make such
Advance, and neither the Borrowers nor any other party shall have any claim
against such Conduit Lender by reason for its failure to timely make such
Advance. In any such case, the Agent for such Conduit Lender shall give notice
of such failure not later than 12:00 noon (New York City time) on the Borrowing
Date to each Committed Lender with respect to such Conduit Lender, which notice
shall specify the identity of such Conduit Lender, the amount of the Advance
which it had elected to make and the respective Liquidity Percentages of such
Committed Lenders on such Borrowing Date (as determined by such Agent in good
faith; for purposes of such determination, such Agent shall be entitled to rely
conclusively on the most recent information provided by such Conduit Lender or
its agent or by the agent for its Support Parties). Subject to receiving such
notice, each of such Conduit Lender's Committed Lenders shall make an Advance on
such Borrowing Date in an amount equal to its Liquidity Percentage of such
Conduit Lender's Lending Percentage of the Borrowing to be made on such
Borrowing Date at or before 1:00 p.m. (New York City time) on such Borrowing
Date and otherwise in accordance with Section 2.02(f). Subject to (x) such
Agent's receipt of such funds and (y) the fulfillment of the applicable
conditions set forth in Article III, as determined by such Agent, the related
Agent will by no later than 1:30 p.m. (New York City time) on such Borrowing
Date make such funds available, in the same type of funds received, by wire
transfer thereof to the account designated by the Borrowers in the Notice of
Borrowing. In the event that any Committed Lender made an Advance on a Borrowing
Date in lieu of a Conduit Lender, not later than the Business Day following such
Borrowing Date, the related Agent shall give notice to the Borrowers specifying
the amount of such Advance and identifying such Committed Lender.
(h) Advances made by Lenders in respect of a Notice of Borrowing shall
initially be of the Type or Types specified in such Notice of Borrowing.
(i) The obligations of Lenders hereunder, including the obligations of
the Committed Lenders to make Advances, shall be several and not joint
obligations of such Lenders. The failure of any Committed Lender to make the
Advance to be made by it as part of any Borrowing shall not relieve any other
Committed Lender of its obligation hereunder to make its Advance on the date of
such Borrowing, but except as provided in Section 2.02(e) and (g) with respect
to Committed Lenders, no Lender shall be responsible for the failure of any
other Lender to make the Advance to be made by such other Lender on the date of
any Borrowing.
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(j) Notwithstanding anything in this Section to the contrary, the
Administrative Agent may, in its sole discretion, accept and act without
liability upon the basis of a telephonic notice of borrowing (which notice shall
be irrevocable and shall be promptly confirmed by a written Notice of Borrowing
sent by facsimile) believed by the Administrative Agent in good faith to be from
an Authorized Officer of any Borrower. The Administrative Agent's records
regarding the terms of such telephone notice of borrowing shall be presumptively
correct absent manifest error. The fact that the Administrative Agent may so act
in any circumstance shall not be deemed a waiver of compliance with the
procedures of this Section 2.02 in any other circumstance.
SECTION 2.03 Reductions of Commitments.
(a) The Borrowers shall have the right, upon at least five Business
Day's prior written notice to the Administrative Agent (with a copy to the
Lender Collateral Agent), at any time to permanently reduce the Total Commitment
Amount to zero and terminate all Commitments or from time to time to permanently
reduce the Total Commitment Amount in part; provided, however, that each partial
reduction shall be in the amount of at least $20,000,000 or an integral multiple
of $1,000,000 in excess of that amount.
(b) Each reduction in the Total Commitment Amount shall be applied pro
rata to the Maximum Conduit Amount of each Conduit Lender according to such
Lender's Lending Percentage. Each reduction in the Maximum Conduit Amount of a
Conduit Lender shall automatically result in a pro rata reduction of the
Commitment Amount of each Committed Lender relating to such Conduit Lender
according to each such Committed Lender's Commitment Amount. The Total
Commitment Amount shall not be reduced below an amount equal to the outstanding
principal amount of all Advances.
SECTION 2.04 Prepayments of the Borrowings.
(a) Mandatory Prepayment of the Borrowings Arising from Asset Backed
Security Distributions. All Asset Backed Security Distributions paid to the
Lender Collateral Agent pursuant Section 5.01(u) shall be applied by the Lender
Collateral Agent in accordance with the terms of Section 6 of the Security
Agreement.
(b) Optional Prepayment of the Borrowings. The Borrowers may, from time
to time, prepay the Advances in whole or in part provided written notice
(setting forth the date and the amount of such prepayment) is sent to the
Administrative Agent (with a copy to the Lender Collateral Agent) not later than
three Business Days prior to the proposed prepayment; provided that any partial
prepayment shall be in the amount of at least $10,000,000.
(c) In General. Any prepayments of Advances in full to any Lender
pursuant to this Section 2.04 shall be made together with accrued interest to
the date of such prepayment on the amount prepaid. All prepayments of Borrowings
shall be applied pro rata based on the outstanding principal amount of Advances
owed to each Lender. Each prepayment of Advances owed to a Lender shall be
applied to Base Rate Advances and Eurodollar Rate Advances in any manner deemed
appropriate by the related Agent, after consultation with the Borrowers. If any
prepayment is made in respect of any Eurodollar Rate Advance, in whole or in
part, prior to the
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last day of the applicable Interest Period, the Borrowers agree to indemnify the
affected Lenders in accordance with Section 2.13.
SECTION 2.05 Interest on the Advances.
(a) The Borrowers agree (on a joint and several basis) to pay to the
Administrative Agent for the account of each Lender interest on the unpaid
principal amount of each Advance made by such Lender from the date of such
Advance until such principal amount shall be paid in full, at the following
rates per annum:
(i) for Eurodollar Rate Advances, a rate per annum equal at all
times during the Interest Period for such Advance to the sum of (A) the
Adjusted Eurodollar Rate for such Interest Period; and (B) two and
one-quarter percent (2.25%); and
(ii) for Base Rate Advances, a rate per annum equal to the
Alternate Base Rate in effect from time to time.
(b) Interest on each Advance shall be payable on each Interest Payment
Date for such Advance and upon each payment (including prepayment) of the
Advance.
(c) Any amount of principal of any Advance or any other amount owing
hereunder which (i) remains outstanding following the Facility Maturity Date or
(ii) is not paid when due (whether at stated maturity, by acceleration or
otherwise) shall bear interest, from the date on which such amount is due until
such amount is paid in full, payable on the date of demand, at a rate per annum
equal at all times (whether before or after the entry of a judgment thereon) to
3% plus the rate which would otherwise be applicable pursuant to Section 2.05(a)
or, with respect to amounts for which no rate is specified in Section 2.05(a),
to 3% plus the Alternate Base Rate in effect from time to time.
(d) Interest on (i) Base Rate Advances shall be calculated on the basis
of a 365 or 366-day year (as the case may be) when the Alternate Base Rate is
determined by reference to the base commercial lending rate of DBNY, and (ii)
other Advances shall be calculated on the basis of a 360-day year, in each case,
for the actual number of days elapsed. Any change in the interest rate on the
Borrowings resulting from a change in any applicable rate shall become effective
as of the opening of business on the day on which such change in the applicable
rate shall become effective.
(e) The Administrative Agent shall promptly notify the Borrowers and
the Lenders of the applicable interest rate determined by the Administrative
Agent for purposes of Section 2.05(a), but any failure to so notify shall not in
any manner affect the obligation of the Borrowers to pay interest on the
Borrowings in the amounts and on the dates required.
SECTION 2.06 Interest Rate Protection.
(a) If, with respect to any Eurodollar Rate Advances, the Committed
Lenders collectively holding greater than 50% of the outstanding principal
amount of Eurodollar Rate Advances, or in the event that no Eurodollar Rate
Advances are then outstanding, then the Committed Lenders holding greater than
50% of the Total Commitment Amount notify the
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Administrative Agent that they have determined (which determination shall be
conclusive and binding upon the Borrowers) that by reasons of circumstances
affecting the interbank Eurodollar market either adequate and reasonable means
do not exist for ascertaining the Adjusted Eurodollar Rate applicable pursuant
to Section 2.05(a)(ii) or that the applicable Adjusted Eurodollar Rate will not
adequately and fairly reflect the cost to such Lenders of making, funding or
maintaining their respective Eurodollar Rate Advances, the Administrative Agent
shall forthwith so notify the Borrowers and the Lenders, whereupon
(i) each Eurodollar Rate Advance, to the extent not then repaid,
will automatically, on the last day of the then existing Interest Period
therefor, Convert into a Base Rate Advance, and
(ii) the obligation of the Lenders to make or to Continue, or to
Convert Advances into, Eurodollar Rate Advances shall be suspended until
the Administrative Agent is notified by Committed Lenders holding greater
than 50% of the Total Commitment Amount that the circumstances causing such
suspension no longer exist, and upon receipt of such notice, the
Administrative Agent shall so notify the Borrowers and the Lenders.
(b) On the date on which the aggregate unpaid principal amount of
Advances constituting any Borrowing shall be reduced, by payment or prepayment
or otherwise, to less than $5,000,000, such Advances shall, if they constitute
Eurodollar Rate Advances, automatically Convert into Base Rate Advances, and on
and after such date the right of the Borrowers to Convert such Advances into
Advances of a Type other than Base Rate Advances shall terminate unless such
Advances are combined with the Advances constituting another Borrowing, as
contemplated by Section 2.07(a), with the result that the aggregate unpaid
principal balance of all the Advances so combined equals or exceeds $5,000,000.
SECTION 2.07 Voluntary Conversion and Continuation of Advances.
(a) Prior to the Facility Maturity Date, the Borrowers shall have the
option with respect to any outstanding Advance, (i) so long as no Event of
Default has occurred and is continuing, to Convert all or any portion thereof
which constitutes Base Rate Advances to Eurodollar Rate Advances on any Interest
Payment Date; (ii) to Convert all or any portion of any outstanding Eurodollar
Rate Advances to Base Rate Advances upon the expiration date of the Interest
Period applicable to such Eurodollar Rate Advances; or (iii) so long as no Event
of Default has occurred and is continuing, to Continue all or any portion of
such Eurodollar Rate Advances as Eurodollar Rate Advances upon the expiration of
the Interest Periods applicable to any outstanding Eurodollar Rate Advances. The
Borrowers' right to Convert or Continue Advances pursuant to this Section 2.07
shall be understood to include the right (i) to divide any Borrowing into two or
more Borrowings having aggregate principal equal to the principal of such
Borrowing or (ii) to combine any two or more Borrowings into a single Borrowing
having principal equal to the aggregate principal of such Borrowings. If, after
giving effect to any combination or division of Borrowings as contemplated by
this Section 2.07(a), the aggregate unpaid principal amount of the Advances
constituting a Borrowing is less than $5,000,000, those Advances may not be
Converted into or Continued as Eurodollar Rate Advances.
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(b) To Convert or Continue any Advance under Section 2.07(a), the
Borrowers shall deliver a Notice of Conversion/Continuation to the
Administrative Agent not later than 2:00 p.m. (New York City time) on (i) the
fourth Business Day prior to the date of the proposed Conversion/Continuation if
such Advance is to be Converted into or Continued as a Eurodollar Rate Advance
or if the Advance is to be Converted from a Eurodollar Rate Advance into any
other Type of Advance, and (ii) the Business Day prior to the date of the
proposed Conversion/Continuation in any other case. If a Notice of
Conversion/Continuation is transmitted by telecopy, the Borrowers shall promptly
provide written confirmation thereof to the Administrative Agent. If the
Administrative Agent receives such a Notice of Conversion/Continuation at or
before 4:00 p.m. (New York City time) on a Business Day, it shall provide each
Agent with a copy thereof on such Business Day, and otherwise it shall provide
each Agent with a copy thereof at or before 1:00 p.m. (New York City time) on
the following Business Day. Each Agent shall promptly provide to each Lender in
its Lender Group a copy of each Notice of Conversion/Continuation received by
it. Each Notice of Conversion/Continuation shall be in the form attached hereto
as Exhibit C and shall specify (i) the date of such proposed
Conversion/Continuation (which shall be a Business Day), (ii) the Advances to be
Converted and/or Continued, (iii) the principal amount of the Advances to be
Converted and/or Continued, (iv) whether such Advance is to be Converted or
Continued and (iv) if any portion of such Advance is to be Converted or
Continued as a Eurodollar Rate Advance, the Interest Period with respect
thereto. Any Notice of Conversion/Continuation shall be irrevocable, and the
Borrowers shall be bound to Convert or to Continue the Advances in accordance
therewith. If the Borrowers shall fail to deliver a Notice of
Conversion/Continuation to the Administrative Agent as aforesaid with respect to
any Type of Advance, such Advance shall automatically be Continued as the same
Type of Advance if otherwise permitted by this Agreement on the last day of the
then existing Interest Period therefor or if, not permitted to be so Continued,
shall automatically Convert to a Base Rate Advance on such date.
(c) Notwithstanding any provision of Section 2.07(b) to the contrary,
the Administrative Agent may, in its sole discretion, accept and act without
liability upon the basis of a telephonic notice of Conversion/Continuation
(which notice shall be irrevocable and shall be promptly confirmed by a written
Notice of Conversion/Continuation sent by facsimile) believed by the
Administrative Agent in good faith to be from an Authorized Officer of the
Borrowers. The Administrative Agent's records regarding the terms of such
telephone notice of such borrowing shall be presumptively correct absent
manifest error. The fact that the Administrative Agent may so act in any
circumstance shall not be deemed a waiver of compliance with the procedures of
Section 2.07(b) in any other circumstance.
SECTION 2.08 Fees. The Borrowers agree (on a joint and several basis)
to pay to the Administrative Agent and, to the extent set forth in any
Supplemental Fee Letter, the Agents and the Lenders those Fees set forth in the
Supplemental Fee Letters in accordance with the terms thereof. The parties
hereto acknowledge that there is one Supplemental Fee Letter in effect on the
Effective Date.
SECTION 2.09 Extensions of Commitment Expiration Dates.
(a) On the Lending Termination Date for a Committed Lender, the
Commitment of such Lender shall be automatically reduced to zero.
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(b) So long as no Event of Default or Event of Early Termination has
occurred and is continuing, no more than 90 and no less than 60 days prior to
the applicable Commitment Expiration Date, the Borrowers may request, through
the Administrative Agent, that each Lender consent to an extension of the
Commitment Expiration Date for a 364-day period as herein provided, which
decision will be made by each Lender in its sole discretion. Upon receipt of any
such request, the Administrative Agent shall promptly notify each Agent thereof,
which shall notify each Lender in its Lender Group thereof. Not more than 30
days following the date of a request for an extension (such 30-day period, the
"Election Period"), each Lender shall notify the Agent for its Lender Group of
its willingness or refusal to so consent to an extension of the Commitment
Expiration Date, and such Agent shall notify the Borrowers and the
Administrative Agent of such willingness or refusal by each Lender not later
than the Business Day following the last day of the Election Period. Any Lender
which notifies the applicable Agent of its refusal to consent to the extension
or which does not expressly notify such Agent that it is willing to consent to
an extension of the Commitment Expiration Date during the applicable Election
Period shall be deemed to be a (x) Nonextending Lender after the Commitment
Expiration Date then in effect (such occurrence, unless such Nonextending Lender
is replaced pursuant to Section 2.09(c) of this Agreement or unless the Lending
Termination Date shall have occurred, a "Partial Expiration Event") and (y)
"Dissenting Lender" from the date of its refusal notice or the end of the
applicable Election Period. If a Lender has agreed to extend its Commitment
Expiration Date, and, at the end of the applicable Election Period no Event of
Default or Event of Early Termination shall have occurred, the Commitment
Expiration Date for such Lender then in effect shall be extended to the date
which is 364 days following the first day of the Election Period or, if such day
is not a Business Day, the next preceding Business Day.
(c) Within two Business Days following the end of an Election Period,
the Agent for each Lender Group shall notify each other Lender in such Lender
Group, the Administrative Agent and the Borrowers of the identity of any
Dissenting Lender and the amount of its Commitment, if any. Any of such Agent,
the Borrowers or, if the Dissenting Lender is a Committed Lender, the affected
Conduit Lenders, may (but shall not be required to) request one or more other
Lenders in such Lender Group, with the consent of the applicable Agent (which
shall not be unreasonably withheld) and, if the Dissenting Lender is a Committed
Lender, the affected Conduit Lender in its sole discretion, or seek another
financial institution reasonably acceptable to such Agent and, if the Dissenting
Lender is a Committed Lender, acceptable to the affected Conduit Lender in its
sole discretion, to acquire all or a portion of the Commitment of the Dissenting
Lender and all amounts payable to it hereunder in accordance with Section 8.01
of this Agreement. Each Dissenting Lender hereby agrees to assign all or a
portion of its Commitment and the amounts payable to it hereunder to a
replacement lender identified by the Agent for its Lender Group in accordance
with the preceding sentence, subject to ratable payment of such Dissenting
Lender's Advances, together with all accrued and unpaid interest thereon, and a
ratable portion of all fees and other amounts due to it hereunder.
(d) If a Partial Expiration Event shall have occurred, on each
succeeding Distribution Date after the applicable Commitment Expiration Date,
the Limited Amortization Amount with respect to such Distribution Date and each
Nonextending Lender shall be due and payable.
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SECTION 2.10 Increased Costs; Increased Capital.
(a) In the event that any Lender shall have reasonably determined that
any Regulatory Change shall:
(i) subject such Lender to any Taxes of any kind whatsoever, other
than Excluded Taxes, with respect to this Agreement, its Commitment or its
Advances, or change the basis of taxation of payments in respect thereof;
or
(ii) impose, modify or hold applicable any reserve, special
deposit, compulsory loan, assessment, increased cost or similar requirement
against assets held by, deposits or other liabilities in or for the account
of, advances, loans or other extensions of credit by, or any other
acquisition of funds by, such Lender or any office of such Lender in
respect of its Commitment or Advances and which, in the case of Eurodollar
Rate Advances, is not otherwise included in the determination of the
Adjusted Eurodollar Rate,
and the result of any of the foregoing is to increase the cost to such Lender,
by an amount which such Lender deems to be material, of maintaining its
Commitment or of making, renewing, Converting, Continuing or maintaining its
Advances or to reduce any amount receivable in respect thereof, then, in any
such case, after submission by such Lender to the Administrative Agent of a
written request therefor and the submission by the Administrative Agent to the
Borrowers of such written request therefor, the Borrowers shall pay (on a joint
and several basis) to the Administrative Agent for the account of such Lender
any additional amounts necessary to compensate such Lender for such increased
cost or reduced amount receivable.
(b) In the event that any Lender shall have determined that any
Regulatory Change regarding capital adequacy has the effect of reducing the rate
of return on such Lender's capital or on the capital of any Person directly or
indirectly owning or controlling such Lender as a consequence of its obligations
hereunder or its maintenance of its Commitment or its making, renewing,
Converting, Continuing or maintaining its Advances to a level below that which
such Lender or such Person could have achieved but for such Regulatory Change
(taking into consideration such Lender's or such Person's policies with respect
to capital adequacy) by an amount deemed by such Lender or such Person to be
material, then, from time to time, after submission by such Lender to the
Administrative Agent of a written request therefor and submission by the
Administrative Agent to the Borrowers of such written request therefor, the
Borrowers shall pay (on a joint and several basis) to the Administrative Agent
for the account of such Lender such additional amount or amounts as will
compensate such Lender or such Person, as the case may be, for such reduction.
(c) Each Lender agrees that it shall use its reasonable efforts to
reduce or eliminate any claim for compensation pursuant to this Section 2.10,
including but not limited to designating a different Applicable Lending Office
for its Advances (or any interest therein) if such designation will avoid the
need for, or reduce the amount of, any increased amounts referred to in this
Section 2.10 and will not, in the opinion of such Lender, be unlawful or
otherwise disadvantageous to such Lender or inconsistent with its policies or
result in an
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unreimbursed cost or expense to such Lender or in an increase in the aggregate
amount payable under both this Section 2.10 or under Section 2.11.
(d) Each Lender claiming increased amounts described in this Section
2.10 will furnish to the related Agent (together with its request for
compensation) a certificate prepared in good faith setting forth the basis and
the amount of each request by such Lender for any such increased amounts
referred to in this Section 2.10. Any such certificate shall be conclusive
absent manifest error, and such Agent shall deliver a copy thereof to the
Borrowers. Failure on the part of any Lender to demand compensation for any
amount pursuant to this Section 2.10 with respect to any period shall not
constitute a waiver of such Lender's right to demand compensation with respect
to such period. All such amounts shall be due and payable to the Administrative
Agent on behalf of such Lender or for its own account, as the case may be,
within five Business Days following receipt by the Borrowers of such certificate
(or, if earlier, on the Facility Maturity Date or when earlier required to be
paid as provided herein).
SECTION 2.11 Taxes.
(a) All payments made to the Lenders, the Agents or the Administrative
Agent under this Agreement and the Notes and the other Transaction Documents
shall, to the extent allowed by law, be made free and clear of, and without
deduction or withholding for or on account of, any present or future income,
stamp or other taxes, levies, imposts, duties, charges, fees, deductions or
withholdings, now or hereafter imposed, levied, collected, withheld or assessed
by any Governmental Authority (collectively, "Taxes"), excluding income taxes,
franchise taxes imposed in lieu of income taxes or any other taxes based on or
measured by the overall net income of the Lender or its Applicable Lending
Office or the Agent or the Administrative Agent (as the case may be) by the
jurisdiction in which such Lender, such Agent or the Administrative Agent (as
the case may be) is incorporated or has its principal place of business or such
Applicable Lending Office (such excluded taxes being herein called "Excluded
Taxes"). If any Taxes, other than Excluded Taxes, are required to be withheld
from any amounts payable to a Lender, an Agent or the Administrative Agent
hereunder or under any Note or other Transaction Document, then after submission
by any Lender to the related Agent (in the case of an amount payable to a
Lender) and by such Agent to the Borrowers of a written request therefor, the
amounts so payable to such Lender, such Agent or the Administrative Agent, as
applicable, shall be increased, and, the Borrowers shall be liable to pay (on a
joint and several basis) to the Administrative Agent for the account of such
Lender, such Agent or for its own account, as applicable, the amount of such
increase, to the extent necessary to yield to such Lender, such Agent or the
Administrative Agent, as applicable (after payment of all such Taxes) interest
or any such other amounts payable hereunder or thereunder at the rates or in the
amounts specified herein or therein; provided, however, that the amounts so
payable to such Lender, such Agent or the Administrative Agent shall not be
increased pursuant to this Section 2.11(a) to the extent such requirement to
withhold results from the failure of such Person to comply with Section 2.11(c).
Whenever any Taxes are payable on or with respect to amounts payable to a
Lender, an Agent or the Administrative Agent, as promptly as possible thereafter
the Borrowers shall send to the Administrative Agent or the related Agent, on
behalf of such Lender (if applicable), a certified copy of an original official
receipt showing payment thereof. If the Borrowers fail to pay any Taxes when due
to the appropriate taxing authority or fails to remit to the Administrative
Agent or the related Agent, on behalf of itself or such Lender (as applicable),
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the required receipts or other required documentary evidence, the Borrowers
shall pay (on a joint and several basis) to the Administrative Agent on behalf
of such Lender, such Agent or for its own account, as applicable, any
incremental taxes, interest or penalties that may become payable by such Lender,
such Agent or the Administrative Agent, as applicable, as a result of any such
failure.
(b) A Lender claiming increased amounts under Section 2.11(a) for Taxes
paid or payable by such Lender will furnish to the related Agent a certificate
prepared in good faith setting forth the basis and amount of each request by
such Lender for such Taxes, and such Agent shall deliver a copy thereof to the
Borrowers. The Administrative Agent or an Agent claiming increased amounts under
Section 2.11(a) for its own account for Taxes paid or payable by the
Administrative Agent or such Agent will furnish to the Borrowers a certificate
prepared in good faith setting forth the basis and amount of each request by the
Administrative Agent or such Agent for such Taxes. Any such certificate of a
Lender, an Agent or the Administrative Agent shall be conclusive absent manifest
error. Failure on the part of any Lender, any Agent or the Administrative Agent
to demand additional amounts pursuant to Section 2.11(a) with respect to any
period shall not constitute a waiver of the right of such Lender, such Agent or
the Administrative Agent, as the case may be, to demand compensation with
respect to such period. All such amounts shall be due and payable to the
Administrative Agent on behalf of such Lender or such Agent or for its own
account, as the case may be, on the date five Business Days following receipt by
the Borrowers of such certificate (or, if earlier, on the Series Maturity Date
or on the Facility Maturity Date or when earlier required to be paid as provided
herein).
(c) The Administrative Agent, each Agent and each Lender that is not a
United States person (as such term is defined in Section 7701(a)(30) of the
Code) for Federal income tax purposes shall, to the extent that it may then do
so under applicable laws and regulations, deliver to the Borrowers (with, in the
case of each Lender, a copy to the Administrative Agent) (i) within 15 days
after the date hereof, or, if later, the date on which such Lender becomes a
Lender pursuant to Section 8.06 hereof, two (or such other number as may from
time to time be prescribed by applicable laws or regulations) duly completed
copies of such IRS forms or other certificates or statements which may be
required from time to time by the relevant United States taxing authorities or
applicable laws or regulations, as appropriate, to permit the Borrowers to make
payments hereunder for the account of such Lender or the Administrative Agent,
as the case may be, without deduction or withholding of United States federal
income or similar taxes and (ii) upon the obsolescence of or after the
occurrence of any event requiring a change in, any form or certificate
previously delivered pursuant to this Section 2.11(c), copies (in such numbers
as may be from time to time be prescribed by applicable laws or regulations) of
such additional, amended or successor forms, certificates or statements as may
be required under applicable laws or regulations to permit the Borrowers, the
Administrative Agent and the related Agent to make payments hereunder for the
account of such Lender, such Agent or the Administrative Agent, as the case may
be, without deduction or withholding of United States federal income or similar
taxes.
(d) In addition, the Borrowers agree to pay (on a joint and several
basis) any present or future stamp or documentary taxes or any other excise or
property taxes, charges or similar levies that arise from any payment made
hereunder or from the execution, delivery or
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registration of, or otherwise with respect to, this Agreement or any Note or
other Transaction Document.
SECTION 2.12 Payments and Computations.
(a) The Borrowers shall make each payment hereunder (to the extent not
paid pursuant to Section 6 of the Security Agreement or Section 6 of the Master
Collateral and Intercreditor Agreement), not later than 2:00 p.m. (New York City
time) on the day when due by wire transfer in Dollars and in immediately
available funds, without set-off or counterclaim, to the Lender Collateral Agent
at its LA Asset Backed Account (Account # 01419663 Reference: AmeriCredit Corp
Attn: CDO Administration) maintained at Deutsche Bank Trust Company Americas,
New York, NY 10005 (ABA# 021-001-033), with facsimile notice (including wire
number) to the CDO Administration Department of the Lender Collateral Agent
(facsimile number (714) 247-6475), or such other account as the Lender
Collateral Agent shall designate in writing to the Borrowers. Promptly upon
receipt thereof by the Lender Collateral Agent, each payment of principal on the
Borrowings shall be remitted by the Lender Collateral Agent in immediately
available funds to each Agent pro rata in accordance with Section 2.04 or, in
the case of payments received in respect of the Facility Maturity Date or at any
time thereafter, pro rata according to the aggregate outstanding principal
balance of the Advances owed to the Lenders in each Lender Group; provided that
on each Distribution Date from and after the occurrence of a Partial Expiration
Event until the earlier to occur of (i) the Lending Termination Date and (ii)
the date on which the outstanding principal amount of Advances held by each
Nonextending Lender has been reduced to zero, principal payments of Advances
other than payments required to cure Borrowing Base Deficiencies shall be
allocated and applied to the Limited Amortization Amounts due to the
Nonextending Lenders and related Conduit Lenders pro rata based on their
respective Limited Amortization Amounts for such Distribution Date. Promptly
upon receipt thereof by an Agent, each payment of principal on the Borrowings
shall be remitted by such Agent in like funds as received to each Lender in its
Lender Group (subject to the proviso to the immediately preceding sentence) for
the account of its Applicable Lending Office pro rata in accordance with Section
2.04 or, in the case of payments received in respect of the Facility Maturity
Date or at any time thereafter, pro rata according to the aggregate outstanding
principal balance of the Advances owed to such Lenders. Each payment of interest
on the Borrowings shall be remitted by the Administrative Agent in immediately
available funds as received to each Agent pro rata in accordance with Section
2.04 or, in the case of payments received in respect of the Facility Maturity
Date or at any time thereafter, pro rata according to the aggregate outstanding
principal balance of the Advances owed to the Lenders in each Lender Group.
Promptly upon receipt thereof by an Agent, each payment of interest on the
Borrowings shall be remitted by such Agent in immediately available funds as
received to each Lender in its Lender Group for the account of its Applicable
Lending Office pro rata in accordance with the aggregate amount of unpaid
interest owed to each of such Lenders. Promptly upon receipt thereof by the
Administrative Agent, each payment of Commitment Fees, Usage Fees or other fees
shall be remitted by the Administrative Agent in immediately available funds as
received to the Agent for each Lender entitled thereto, pro rata according to
the amount thereof owed to each such Lender. Upon its acceptance of an
Assignment and Assumption from and after the "Transfer Effective Date" specified
in such Assignment and Assumption, the Administrative Agent shall make all
payments hereunder in respect of the interest assigned thereby to the Agent of
the Lender's assignee thereunder, for the account of its Applicable Lending
Office, and the
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parties to such Assignment and Assumption shall make all appropriate adjustments
in such payments for periods prior to such effective date directly between
themselves.
(b) Whenever any payment hereunder shall be stated to be due on a day
other than a Business Day, such payment shall be made on the next succeeding
Business Day, and such extension of time shall in such case be included in the
computation of payment of interest or any fee payable hereunder, as the case may
be, provided, however, that, if such extension would cause payment of interest
on or principal of Eurodollar Rate Advances to be made in the next following
month, such payment shall be made on the immediately preceding Business Day.
(c) All computations of fees shall be made by the Administrative Agent
on the basis of a year of 360 days, in each case for the actual number of days
(including the first day but excluding the last day) occurring in the period for
which such fee is payable.
SECTION 2.13 Indemnification for Loss. Notwithstanding anything
contained herein to the contrary, (i) if the Borrowers shall fail to borrow an
Advance after it has requested such Advance as a Eurodollar Rate Advance
pursuant to Section 2.02 or shall fail to Convert or Continue an Advance after
it shall have given notice to do so in which it shall have requested a
Eurodollar Rate Advance pursuant to Section 2.07, (ii) if a Eurodollar Rate
Advance shall be terminated for any reason prior to the last day of the Interest
Period applicable thereto (including by reason of its Conversion), or (iii) if
any repayment or prepayment of some or all of the principal amount of a
Eurodollar Rate Advance is made for any reason on a date which is prior to the
last day of the Interest Period applicable thereto, then, in any such case the
Borrowers agree to indemnify (on a joint and several basis) each affected Lender
against, and to promptly pay, on demand, directly to such Lender the amount
equal to any loss or reasonable out-of-pocket expense suffered by such Lender as
a result of such failure to borrow, Convert or Continue, or such termination,
repayment or prepayment, including (A) in the case of a Eurodollar Rate Advance,
any loss, cost or expense suffered by such Lender in liquidating or employing
deposits acquired to fund or maintain the funding of such Eurodollar Rate
Advance, or redeploying funds prepaid or repaid, in amounts which correspond to
its such Eurodollar Rate Advance, and (B) any internal processing charge
customarily charged by such Lender in connection therewith. At the election of
such Lender, and without limiting the generality of the foregoing, but without
duplication, such compensation on account of losses may include an amount equal
to the excess of (i) the interest that would have been received from the
Borrowers under this Agreement on any amounts to be reemployed during an
Interest Period or its remaining portion over (ii) the interest component of the
return that such Lender determines it could have obtained had it placed such
amount on deposit in the interbank eurodollar market selected for a period equal
to the applicable Interest Period or its remaining portion. A statement setting
forth in reasonable detail the calculations of any additional amounts payable
pursuant to this Section submitted by a Lender or an Agent, as the case may be,
to the Borrowers shall be conclusive absent manifest error.
SECTION 2.14 Illegality. Notwithstanding any other provision of this
Agreement, if any Lender shall notify the related Agent that any Regulatory
Change makes it unlawful, or any central bank or other governmental authority
asserts that it is unlawful, for any Lender or its Applicable Lending Office to
perform its obligations hereunder to make Eurodollar Rate Advances or to fund or
maintain Eurodollar Rate Advances hereunder, then (a) as of the
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effective date of such notice the obligation of such Lender to make or to
Continue, or to Convert Advances into, Eurodollar Rate Advances shall be
suspended until such Lender shall notify the related Agent and the Borrowers
that the circumstances causing such suspension no longer exist and (b) each
Eurodollar Rate Advance of such Lender shall be Converted into a Base Rate
Advance either (i) on the last day of such Interest Period if such Lender may
lawfully continue to maintain and fund such Advance to the last day of the
Interest Period applicable to such Eurodollar Rate Advance on the effective date
of such notice, or (ii) on the effective date of such notice, if such Lender
shall determine that it may not lawfully continue to maintain and fund such
Advance to the end of the then current Interest Period. Notwithstanding any
provision herein to the contrary, until such affected Lender shall give the
rescinding notice described in clause (a) above, any Advance made by such
Lender, whether in connection with a new Borrowing or the Conversion of an
existing Borrowing, shall be a Base Rate Advance, notwithstanding that each
other Advance comprised by such Borrowing may be a Eurodollar Rate Advance.
SECTION 2.15 Option to Fund. Each Lender has indicated that, if the
Borrowers request a Eurodollar Rate Advance, such Lender may wish to purchase
one or more deposits in order to fund or maintain its funding of its Lending
Percentage of such Eurodollar Rate Advance during the Interest Period with
respect thereto; it being understood that the provisions of this Agreement
relating to each such funding, if any, are included only for the purpose of
determining the rate of interest to be paid on such Eurodollar Rate Advance and
any amounts owing under Sections 2.10 and 2.13. Each Lender shall be entitled to
fund and maintain its funding of all or any part of each Eurodollar Rate Advance
in any manner such Lender sees fit, but all such determination under Sections
2.10 and 2.13 shall be made as if each Lender had actually funded and maintained
its funding of its Lending Percentage of such Eurodollar Rate Advance during the
applicable Interest Period, in each case through the purchase of deposits in an
amount equal to the amount of its Lending Percentage of such Eurodollar Rate
Advance and having a maturity corresponding to such Interest Period.
SECTION 2.16 Sharing of Payments, Etc. If any Lender shall obtain any
payment (whether voluntary or involuntary) on account of the Advances made by it
(other than pursuant to Sections 2.09(d), 2.10, 2.11 or 2.13) in excess of its
ratable share of payments on account of the Advances obtained by all the
Lenders, such Lender shall forthwith (i) notify each of the other Lenders of
such receipt and (ii) purchase from the other Lenders for cash such
participation in the Advances made by them as shall be necessary to cause such
purchasing Lender to share the excess payment ratably with each of them;
provided, however, that, if all or any portion of such excess payment is
thereafter recovered from such purchasing Lender, such purchase from each Lender
shall be rescinded and such Lender shall repay to the purchasing Lender the
purchase price to the extent of such recovery together with an amount equal to
such Lender's ratable share (according to the proportion of (i) the amount of
such Lender's required repayment to (ii) the total amount so recovered from the
purchasing Lender) of any interest or other amount paid or payable by the
purchasing Lender in respect of the total amount so recovered. The Borrowers
agree that any Lender so purchasing a participation from another Lender pursuant
to this Section 2.16 may exercise all its rights of setoff with respect to such
participation as fully as if such Lender were the direct creditor of the
Borrowers in the amount of such participation.
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SECTION 2.17 Administrative Agent's Records. The
Administrative Agent's records regarding the amount of each Borrowing, each
payment by the Borrowers of principal and interest on the Borrowings and other
information relating to the Borrowings shall be presumptively correct absent
manifest error.
ARTICLE II-A
GUARANTY
SECTION 2A.01 Guaranty of Payment and Performance. Each Contingent
Obligor hereby, jointly and severally, guarantees to the Administrative Agent
(on behalf of the Lenders) the payment and performance, of all liabilities,
agreements and other obligations of each Borrower to the Administrative Agent,
each Agent, the Lender Collateral Agent (on behalf of itself and the Lenders)
and to each of the Lenders under the Transaction Documents, whether direct or
indirect, absolute or contingent, due or to become due, secured or unsecured,
now existing or hereafter arising or acquired excluding, however, the payment of
the Advances and interest thereon (such non-excluded obligations, collectively,
the "Guaranteed Obligations"). The guaranty provided hereunder is an absolute,
unconditional and irrevocable guaranty of the full and punctual payment and
performance of the Guaranteed Obligations and not of their collectibility only
and is in no way conditioned upon any requirement that the Administrative Agent,
the Lender Collateral Agent, the Master Collateral Agent, any Agent or any
Lender first attempt to collect any of the Guaranteed Obligations from either
Borrower or resort to any security or other means of obtaining their payment.
Should either Borrower default in the payment or performance of any of the
Guaranteed Obligations, the obligations with respect to the payment or
performance in default of each Contingent Obligor hereunder shall become
immediately due and payable to the Administrative Agent (on behalf of the
Lenders), without demand or notice of any nature, all of which are expressly
waived by each Contingent Obligor. Payments by the Contingent Obligors hereunder
may be required by the Administrative Agent (on behalf of the Lenders) on any
number of occasions.
SECTION 2A.02 Contingent Obligor's Agreement to Pay. Each Contingent
Obligor agrees, jointly and severally, as the principal obligor and not as a
guarantor only, to pay to the Administrative Agent, on demand, all reasonable
costs and expenses (including court costs and reasonable legal expenses)
incurred or expended by the Administrative Agent in connection with enforcement
of the obligations of any of the Contingent Obligors under this Article II-A
from the time such amounts become due until payment, at the rate per annum equal
to 3% plus the Alternate Base Rate in effect from time to time; provided that,
if such interest exceeds the maximum amount permitted to be paid under
applicable law, then such interest shall be reduced to such maximum permitted
amount.
ARTICLE III
CONDITIONS PRECEDENT
SECTION 3.01 Conditions Precedent to the Effectiveness of this
Agreement. The following constitute conditions precedent to the effectiveness of
this Agreement and the Commitments of the Lenders to make Advances under this
Agreement:
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(a) Representations and Warranties. On the Effective Date and after
giving effect to any Borrowings on such date, all representations and warranties
of the Borrowers and the Contingent Obligors contained herein or in any
Transaction Document or otherwise made by it in writing pursuant to any of the
provisions hereof or thereof shall be true and correct in all material respects
with the same force and effect as though such representations and warranties had
been made on and as of such date.
(b) No Defaults. On the Effective Date and after giving effect to any
Borrowings on such date, no Event of Early Termination, Default or Event of
Default shall have occurred.
(c) Notes. The Borrowers shall have duly executed and delivered, and
each Lender or Agent, as the case may be, shall have received, a Note in
accordance with Section 2.01(b).
(d) Security Agreement, etc. The parties thereto shall have duly
entered into the Security Agreement and the Master Collateral and Intercreditor
Agreement, each in form and substance satisfactory to the Administrative Agent
and each Agent; the Administrative Agent and each Agent shall have received an
executed copy thereof; and each Lender shall have received a true and correct
copy thereof.
(e) Financing Statements, etc. The Administrative Agent and each Agent
shall have received evidence reasonably satisfactory to it that proper financing
statements, describing the Revolver Collateral and naming the Borrowers as
debtors and the Lender Collateral Agent, on behalf of the Secured Parties, as
secured party, or other similar instruments or documents, as may be necessary
or, in the opinion of the Administrative Agent, any Agent, the Lender Collateral
Agent, or any Lender, desirable under the Uniform Commercial Code of all
appropriate jurisdictions or any comparable law to perfect the security interest
granted under the Security Agreement in the Revolver Collateral, have been
delivered and, if appropriate, have been duly filed or recorded and that all
filing fees, taxes or other amounts required to be paid in connection therewith
have been paid. The Administrative Agent and each Agent shall have received
evidence reasonably satisfactory to it that proper financing statements,
describing the Shared Collateral and naming the Borrowers as debtors and the
Master Collateral Agent, as secured party, or other similar instruments or
documents, as may be necessary or, in the opinion of the Administrative Agent or
any Lender, desirable under the Uniform Commercial Code of all appropriate
jurisdictions or any comparable law to perfect the security interest granted
under the Master Collateral and Intercreditor Agreement in the Shared
Collateral, have been delivered and, if appropriate, have been duly filed or
recorded and that all filing fees, taxes or other amounts required to be paid in
connection therewith have been paid. For all purposes hereunder, the
Administrative Agent, each Agent and the Lender Collateral Agent may rely upon
an opinion of counsel as to their respective determinations. The Administrative
Agent and each Agent shall have received (i) an acknowledgment in form and
substance satisfactory to it from the Master Collateral Agent acknowledging
Delivery (as defined in the Master Collateral and Intercreditor Agreement) to it
of the AFSFT Class A Certificate and each of the certificates evidencing the
Series 2000-1 Residual Interest, the Series 2001-1 Residual Interest and the
Series 2002-1 Residual Interest (each as defined in the Master Collateral and
Intercreditor Agreement) and (ii)
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evidence of the termination of the lien on the AFSFT Class A Certificate
previously held by the collateral agent for FSA.
(f) Lien Search Reports. The Administrative Agent and each
Agent shall have received certified copies of requests for information or copies
(or a similar search report certified by a party acceptable to the
Administrative Agent and each Agent), dated a date reasonably near to the
Effective Date, listing all effective financing statements which name the
Borrowers or AFS Funding Trust (in any case, under its present name and any
previous name) as debtor and which are filed in the jurisdictions in which the
statements referred to in Section 3.01(e) were or are to be filed, together with
copies of such financing statements (none of which, other than financing
statements naming the Lender Collateral Agent, for the benefit of the Secured
Parties, or the Master Collateral Agent, as secured party, shall cover any of
the Revolver Collateral or the Shared Collateral). The Administrative Agent
shall have no responsibility or obligation, at any time, to review, evaluate,
verify, monitor, inquire or investigate any document, reports or information
received pursuant to this Section 3.01(f), it being the specific understanding
and agreement of the parties hereto that the Administrative Agent's sole
responsibility and obligation under this Section 3.01(f) is to receive the
documents, reports and information as and when provided.
(g) Other Transaction Documents. Each other Transaction
Document not otherwise referred to in this Section 3.01 (other than the Interest
Rate Caps, the Interest Rate Hedge Assignment Acknowledgments, and the
guarantees delivered pursuant to clause (p) of the definition of Eligible
Security) shall have been duly executed and delivered by the parties thereto;
each Agent and the Administrative Agent shall have received an executed copy of
its Supplemental Fee Letter and the Administrative Agent and each Agent shall
have received a copy of each such other Transaction Document.
(h) Expenses. The Borrowers shall have paid all reasonable and
appropriately invoiced fees, costs and expenses of the Administrative Agent, the
Master Collateral Agent, the Agents and the Lender Collateral Agent payable by
the Borrowers in connection with the transactions contemplated hereby.
(j) Other Documents. The Administrative Agent and each Agent
shall have received the following, each dated as of the Effective Date or as
otherwise permitted below:
(i) A certificate of the Secretary of State of Nevada as
to the legal existence and good standing of AFS Funding dated on or
within 20 days prior to the Effective Date;
(ii) A certificate of the Secretary of State of Nevada as
to the legal existence and good standing of SenSub dated on or within
20 days prior to the Effective Date;
(iii) A certificate of the Secretary of State of the
applicable jurisdiction of incorporation of each Contingent Obligor as
to the legal existence and good standing of such Contingent Obligor
dated on or within 20 days prior to the Effective Date;
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(iv) A certificate of the Secretary of State of Delaware
as to the legal existence and good standing of AFS Funding Trust dated
on or within 20 days prior to the Effective Date;
(v) A certificate of an Authorized Officer of each of
the Borrowers, certifying (A) the names and true signatures of the
Authorized Officers of such Borrower, (B) that the copies of the
charter and the Bylaws of such Borrower attached thereto are complete
and correct copies and that such charter and Bylaws have not been
amended, modified or supplemented and are in full force and effect, and
(C) that the copy of the resolutions of the Board of Directors of such
Borrower approving the transactions contemplated by the Transaction
Documents is a complete and correct copy and that such resolutions are
in full force and effect and are the only resolutions relating to the
matters contemplated by the Transaction Documents;
(vi) A certificate of an Authorized Officer of each of
the Borrowers, certifying that (i) the copies of the unaudited balance
sheet of each of the Borrowers for its fiscal year ended June 30, 2001,
and the related statements of income, shareholders' equity and cash
flows for such fiscal year and the unaudited consolidated balance sheet
as at March 31, 2002, and the related unaudited consolidated statements
of income, shareholders' equity and cash flows for the fiscal quarter
then ended attached to such certificate are complete, true and correct
and have been prepared in accordance with GAAP consistently applied and
present fairly the financial position of such Borrower as of such date
and the results of its operations for such periods, and (ii) there have
been no changes since the end of the fiscal year ended June 30, 2001 in
the assets, liabilities, financial condition, operations, business or
prospects of such Borrower, other than changes in the ordinary course
of business the effect of which have not, in the aggregate, been
materially adverse to the Borrowers;
(vii) A certificate of an Authorized Officer of each
Contingent Obligor, certifying (A) the names and true signatures of the
Authorized Officers of such Contingent Obligor, (B) that the copies of
the charter and Bylaws of such Contingent Obligor attached thereto are
complete and correct copies and that such charter and Bylaws have not
been amended, modified or supplemented and are in full force and
effect, and (C) that the copy of the resolutions of the Board of
Directors of such Contingent Obligor approving the transactions
contemplated by the Transaction Documents is a complete and correct
copy and that such resolutions are in full force and effect and are the
only resolutions relating to the matters contemplated by the
Transaction Documents;
(viii) A certificate of an Authorized Officer of AFS
Funding certifying that the copy of the AFSFT Trust Agreement attached
thereto is a complete and correct copy and that such trust agreement
has not been amended, modified or supplemented and is in full force and
effect;
(ix) A certificate from an Authorized Officer of ACC
certifying that (i) the copies of the audited consolidated balance
sheet of ACC for its fiscal year ended June 30, 2001, and the related
consolidated statements of income, shareholders' equity and
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cash flow for such fiscal year and the unaudited consolidated balance
sheet of ACC as at March 31, 2002, and the related unaudited
consolidated statements of income, shareholders' equity and cash flows
for the fiscal quarter then ended attached to such certificate are
complete, true and correct and have been prepared in accordance with
GAAP consistently applied and present fairly, on a consolidated basis,
the financial position of ACC and its Subsidiaries (including the
Borrowers) as of such dates and the results of their operations for
such periods, and (ii) there have been no changes since the end of the
fiscal year ended on June 30, 2001 in the assets, liabilities,
financial condition, operations, business or prospects of ACC or its
Subsidiaries, other than changes in the ordinary course of business the
effect of which have not, in the aggregate, been materially adverse to
ACC and its Subsidiaries;
(x) except in the case of ACC, certificates of the
Secretary of State of Texas as to the qualification of each of the
Contingent Obligors to do business, and the good standing thereof, in
Texas, each dated on or within 20 days prior to the Closing Date;
(xi) Certificates of Authorized Officers of the
Borrowers and the Contingent Obligors to the effect that the conditions
set forth in Sections 3.01(a) and 3.01(b) have been satisfied and all
conditions under the Master Collateral and Intercreditor Agreement and
the Security Agreement have been satisfied;
(xii) A certificate from each party (other than the
Borrowers, the Agents and the Lenders), in form and substance
satisfactory to the Administrative Agent and each Agent, covering its
due execution and delivery of the Transaction Documents to which it is
a party and the other documents executed by it in connection herewith
and therewith and the incumbency and specimen signatures of its
officers executing such documents;
(xiii) Opinions of Dewey Ballantine and Chris Choate,
Esq., counsel for the Borrowers, AFS Funding Trust and the Contingent
Obligors, and of special Delaware and Nevada counsel (who shall be
reasonably acceptable to the Administrative Agent) to AFS Funding Trust
and the Borrowers, respectively, each dated the Closing Date and
addressed to, and reasonably satisfactory in form and substance to, the
Administrative Agent, the Lender Collateral Agent, the Master
Collateral Agent, each Lender and each Agent;
(xiv) An irrevocable letter of direction from AFS Funding
and AFS Funding Trust to each trustee with respect to a FSA Series
which is a Designated Series instructing such trustee to pay all
amounts otherwise payable to either of the Borrowers or AFS Funding
Trust to the Master Collateral Agent, acknowledged and agreed to by
such trustee, and an irrevocable letter of direction from SenSub to
each trustee with respect to each Series which is a Designated Series
originated by SenSub, i.e., Series 2000-1, Series 2001-1 and Series
2002-1, instructing such trustee to pay all amounts otherwise payable
to SenSub to the Master Collateral Agent, acknowledged and agreed to by
such trustee;
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(xv) Written evidence satisfactory to the
Administrative Agent and each Agent that the Notes have been rated at
least BBB- by S&P;
(xvi) [Reserved];
(xvii) A "field report" from RSM McGladrey, Inc. in form
and substance acceptable to each Lender;
(xviii) An executed copy of the Release and Reconfirmation
Agreement, dated as of August 15, 2002, by and among AmeriCredit Corp.,
ACFS, AFS Funding Trust, AFS Funding and FSA; and
(xix) Such other documents, instruments, opinions and
certificates and completion of such other matters, as the
Administrative Agent and each Agent may reasonably deem necessary or
desirable.
SECTION 3.02 Conditions Precedent to Borrowings, Conversions
and Continuations.
(a) The obligation of each Lender to Convert any Advance or
Continue any Advance shall be subject to the condition precedent that on the
date of such Conversion or Continuation no Event of Default has occurred and is
continuing.
(b) The obligation of each Lender to make any Advance as a
part of any Borrowing (other than as a result of a Conversion or Continuation)
shall be subject to the further conditions precedent that:
(i) The Administrative Agent shall have timely received
a properly completed Notice of Borrowing, executed by an Authorized
Officer of the Borrowers, which Notice of Borrowing shall include a
calculation of the Borrowing Base (including a calculation of the
Revolver Borrowing Base and the Senior Borrowing Base) and shall
demonstrate that, after giving effect to such Borrowing, no Borrowing
Base Deficiency shall exist;
(ii) The Administrative Agent shall have received an
Officer's Certificate of each of the Borrowers, ACFS and ACC stating
that on the Borrowing Date and after giving effect to the Borrowing on
that date, all representations and warranties of such person contained
herein or in any Transaction Document or otherwise made by them in
writing pursuant to any of the provisions hereof or thereof are true
and correct in all material respects with the same force and effect as
though such representations and warranties had been made on and as of
such date, except to the extent that such representations and
warranties specifically relate to an earlier date, in which case such
representations and warranties were true and correct on and as of such
date;
(iii) The Administrative Agent shall have received an
Officer's Certificate of each of the Borrowers stating that on the
Borrowing Date and after giving effect to the Borrowing on that date,
no Event of Early Termination, condition, event or
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act which with notice or lapse of time or both will become an Event of
Early Termination, Default or Event of Default has occurred and is
continuing;
(iv) The Administrative Agent shall have received an
Officer's Certificate of each of the Borrowers stating (a) that the
related Asset Backed Security has been delivered to the Lender
Collateral Agent and is an Eligible Security, (b) that the Lender
Collateral Agent has a first priority perfected security interest in
the Revolver Collateral, and there shall be no other security interests
or Liens on the Revolver Collateral and (c) that the Master Collateral
Agent has a first priority perfected security interest in the Shared
Collateral, and there shall be no other security interests or Liens on
the Shared Collateral;
(v) The Administrative Agent shall have received an
Officer's Certificate of each of the Borrowers stating that there shall
have been no changes in the assets, liabilities, financial condition,
operations, business or prospects of such Borrower or any of the
Contingent Obligors which may have a Material Adverse Effect, including
without limitation the performance of the receivables owned or serviced
by any such party;
(vi) At least four Business Days prior to the date on
which the Borrowers request that the Maximum Advance Amount with
respect to an Eligible Security be included in the Revolver Borrowing
Base, the Borrowers shall provide to the Administrative Agent an
Officer's Certificate certifying that it has delivered to the
Administrative Agent a true and correct copy of the prospectus or other
offering document relating to the Series of which the Eligible Security
is a part;
(vii) If the date of such Borrowing is a Ratings
Reaffirmation Date, the Administrative Agent shall have received
written confirmation that the Notes shall remain rated at least BBB- by
S&P, after giving effect to such Borrowing;
(viii) The Commitment Period Termination Date shall not
have occurred;
(ix) If an Asset Backed Security shall be initially
included in the calculation of the Revolver Borrowing Base in
connection with such Borrowing, such Asset Backed Security shall have
been delivered upon its issuance to the Lender Collateral Agent in
accordance with the provisions of the Security Agreement and this
Agreement, and, if such Asset Backed Security is not rated at least BBB
by S&P and Baa2 by Moody's, the Administrative Agent shall have
calculated a schedule of Maximum Advance Percentages with respect to
such Eligible Security by stressing the base case cash flows (as
presented in the related prospectus supplement or other offering
document) by increasing the base case losses by an additional 25%;
(x) The Administrative Agent and each Lender shall have
received a Revolver Borrowing Base Certificate and a Senior Borrowing
Base Certificate from the Borrowers and ACFS;
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(xi) The Administrative Agent shall have received an
irrevocable letter of direction from SenSub, AFS Funding and/or AFS
Funding Trust, as appropriate, to each trustee with respect to each
Asset Backed Security to be initially included in the calculation of
the Revolver Borrowing Base in connection with such Borrowing
instructing such trustee to pay all amounts otherwise payable to either
of the Borrowers or AFS Funding Trust to the Lender Collateral Agent,
acknowledged and agreed to by such trustee;
(xii) If required pursuant to Section 5.01(n) hereof, the
Administrative Agent shall have received an executed copy of an
Interest Rate Cap and Interest Rate Hedge Assignment Acknowledgement
satisfying the requirements of such Section;
(xiii) If required pursuant to Section 5.01(x) hereof, the
Borrowers shall have paid to the Lender Collateral Agent for deposit to
the "Interest Reserve Account" maintained pursuant to the Security
Agreement, an amount equal to the Interest Reserve Deposit Amount;
(xiv) The Administrative Agent shall have received the
guaranties, if any, required by clause (p) the definition of Eligible
Security with respect to the Eligible Security being financed by such
Borrowing and an opinion of counsel, in form and substance satisfactory
to the Lenders, to the Persons providing such guaranties as to the
authorization, execution, delivery and enforceability of such
guaranties; and
(xv) The Administrative Agent and the Agents shall have
received such other documents, instruments, opinions, certificates as
the Administrative Agent or any such Agent may reasonably deem
necessary or desirable.
(c) The obligation of each Lender to make its initial Advance
shall be subject to the further conditions precedent that the Administrative
Agent and each Lender shall have received:
(i) A report, as of a recent date, prepared by a firm
of nationally recognized independent accountants and addressed to the
Lenders setting forth the result of agreed upon procedures acceptable
to the Administrative Agent to (1) verify the modeling inputs against
the underlying terms of the Designated Term Series, (2) recalculate the
cash flows using the methodology outlined in Annex 1 of the Master
Collateral and Intercreditor Agreement and (3) calculate the total
Senior Borrowing Base pursuant to said Annex 1; and
(ii) An Accountants' Letter with respect to the audited
financial statements of ACC for the year ended June 30, 2001.
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ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01 Representations and Warranties with respect to
the Borrowers. Each Borrower represents and warrants as follows on the date of
this Agreement, the Effective Date and the date that any Advance is made,
Continued or Converted, in each case, with reference to the facts and
circumstances then existing:
(a) Organization and Good Standing. It has been duly organized
and is validly existing as a corporation under the laws of the State of Nevada,
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.
(b) Due Qualification. It is 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
properties or the conduct of its business requires such qualification.
(c) Power and Authority. It has the power and authority to
execute and deliver this Agreement and the other Transaction Documents to which
it is a party and to carry out its terms and their terms, respectively; it has
full power and authority to grant to the Lender Collateral Agent, for the
benefit of the Secured Parties, a perfected security interest in the Revolver
Collateral and has duly authorized such grant by all necessary corporate action;
it has full power and authority to grant to the Master Collateral Agent, for the
benefit of the Secured Parties, a perfected security interest in the Shared
Collateral and has duly authorized such grant by all necessary corporate action;
and the execution, delivery and performance of this Agreement and the other
Transaction Documents to which it is a party have been duly authorized by it by
all necessary corporate action.
(d) Security Interest; Binding Obligations. This Agreement and
the Transaction Documents to which it is a party have been duly executed and
delivered and create a valid security interest in the Revolver Collateral in
favor of the Lender Collateral Agent, on behalf of the Secured Parties,
enforceable against it and creditors of and purchasers from such Borrower; the
Master Collateral and Intercreditor Agreement creates a valid security interest
in the Shared Collateral in favor of the Master Collateral Agent, for the
benefit of the Secured Parties, enforceable against each such Borrower and
creditors of and purchasers from such Borrower; and this Agreement and the other
Transaction Documents to which it is a party have been duly executed and
delivered by it and constitute legal, valid and binding obligations of such
Borrower enforceable against such Borrower in accordance with their respective
terms, except as enforceability may be limited by bankruptcy, insolvency,
reorganization or other similar laws affecting the enforcement of creditors'
rights generally and by equitable limitations on the availability of specific
remedies, regardless of whether such enforceability is considered in a
proceeding in equity or at law.
(e) No Violation. The consummation of the transactions
contemplated by this Agreement and the other Transaction Documents to which it
is a party, and the fulfillment of the terms of this Agreement and the other
Transaction Documents to which it is a party, shall not conflict with, result in
any breach of any of the terms and provisions of, or constitute (with or
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without notice or lapse of time) a default under any indenture, agreement,
mortgage, deed of trust or other instrument to which it is a party or by which
it is bound or any of its properties are subject, or result in the creation or
imposition of any Lien upon any of its properties pursuant to the terms of any
such indenture, agreement, mortgage, deed of trust or other instrument, other
than this Agreement, or violate any law, order, rule or regulation applicable to
its Governmental Authority having jurisdiction over it or any of its properties,
or in any way adversely affect its ability to perform its obligations under this
Agreement or the other Transaction Documents to which it is a party.
(f) No Proceedings. There are no proceedings or investigations
pending or, to its knowledge, threatened against it, before any court or other
Governmental Authority having jurisdiction over it or its properties (A)
asserting the invalidity of this Agreement or any of the other Transaction
Documents, (B) seeking to prevent the consummation of any of the transactions
contemplated by this Agreement or any of the other Transaction Documents, (C)
seeking any determination or ruling that might materially and adversely affect
the performance by it of its obligations under, or the validity or
enforceability of, this Agreement or any of the other Transaction Documents or
the security interests created hereunder or thereunder, (D) involving it, AFS
Funding Trust, the Revolver Collateral or the Shared Collateral, or (E) that
could have a Material Adverse Effect.
(g) No Consents. It is not required to obtain the consent of
any other Person which has not been obtained, or any consent, license, approval
or authorization of, or registration or declaration with, any Governmental
Authority in connection with the execution, delivery, performance, validity or
enforceability of this Agreement or the other Transaction Documents to which it
is a party.
(h) Use of Proceeds. No part of the proceeds of the Borrowings
will be used, directly or indirectly, for a purpose which violates any law, rule
or regulation of any Governmental Authority, including the provisions of
Regulations T, U or X of the Board of Governors of the Federal Reserve System,
as amended.
(i) Solvency. It is solvent and will not become insolvent
after giving effect to the transactions contemplated by this Agreement and the
Transaction Documents. After giving effect to the transactions contemplated by
this Agreement and the other Transaction Documents, it will have adequate funds
to conduct its business in the foreseeable future.
(j) Compliance With Laws. It has complied and will comply in
all material respects with all applicable laws, rules, regulations, judgments,
agreements, decrees and orders with respect to its business and properties, all
Shared Collateral and all Revolver Collateral.
(k) Taxes. It has filed on a timely basis all tax returns
(including, without limitation, foreign, federal, state, local and otherwise)
required to be filed, is not liable for taxes payable by any other Person and
has paid or made adequate provisions for the payment of all taxes, assessments
and other governmental charges due from it. No tax lien or similar adverse claim
has been filed, and no claim is being asserted, with respect to any such tax,
assessment or other governmental charge. Any taxes, fees and other governmental
charges payable by it in connection with the execution and delivery of this
Agreement and the other Transaction
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Documents and the transactions contemplated hereby or thereby have been paid or
shall have been paid if and when due at or prior to the Effective Date and each
Borrowing Date.
(l) No Liens, Etc. It has and will have good title to the
Revolver Collateral and the Shared Collateral it owns. Such Revolver Collateral
and the Shared Collateral is and will be owned by it free and clear of any Lien
or restrictions on transferability (other than Liens in favor of the Lender
Collateral Agent or the Master Collateral Agent) and it has the full right,
corporate power and lawful authority to assign, transfer and pledge the same and
interests therein. No effective financing statement or other instrument similar
in effect covering all or any part of the Revolver Collateral or the Shared
Collateral is on file in any recording office, except such as may have been
filed in favor of the Lender Collateral Agent pursuant to the Security
Agreement, or such as may have been filed in favor of the Master Collateral
Agent pursuant to the Master Collateral and Intercreditor Agreement. It has
delivered all physical collateral constituting the Revolver Collateral and the
Shared Collateral it owns to the Lender Collateral Agent or the Master
Collateral Agent, as applicable.
(m) Information True and Correct. All information heretofore
or hereafter furnished by or on behalf of it, AFS Funding Trust or any
Contingent Obligor to any Lender, any Agent or the Administrative Agent in
connection with this Agreement or any Transaction Document or any transaction
contemplated hereby or thereby (other than any Series Transaction Document or
any prospectus or prospectus supplement relating to a Designated Series) is and
will be true and complete in all material respects and does not and will not
omit to state a material fact necessary to make the statements contained therein
not misleading. All information set forth in a Series Transaction Document or a
prospectus or prospectus supplement relating to a Designated Series was true and
complete in all material respects and did not omit to state a material fact
necessary to make the statements contained therein not misleading as of the date
of such document, prospectus or prospectus supplement.
(n) ERISA Compliance. It is in compliance with ERISA and has
not incurred and does not expect to incur any liabilities (except for premium
payments arising in the ordinary course of business) to the Pension Benefit
Guaranty Corporation (or any successor thereto) under ERISA.
(o) Financial or Other Condition. There has been no event
which may have a Material Adverse Effect since March 31, 2002, other than
changes in general economic conditions which might have affected the value of
the Revolver Collateral or the Shared Collateral.
(p) Investment Company Status. It is not an "investment
company" within the meaning of the Investment Company Act of 1940, as amended,
or is exempt from all provisions of such Act
(q) No Trade Names. It has no trade names, fictitious names,
assumed names or "doing business as" names.
(r) Separate Existence. It is operated, and since its
incorporation has been operated, as an entity with assets and liabilities
distinct from those of any of the Contingent
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Obligors and any of its other Affiliates and any other Person, and each such
Contingent Obligor hereby acknowledges that the Administrative Agent, each of
the Agents and each of the Lenders are entering into the transactions
contemplated by this Agreement in reliance upon each Borrower's identity as a
separate legal entity from each of the Contingent Obligors and each such
Affiliate and any other Person. There is not now, nor will there be at any time
in the future, any agreement or understanding between it and any other Person
providing for the allocation or sharing of obligations to make payments or
otherwise in respect of any taxes, fees, assessments or other governmental
charges other than the management services agreement dated as of January 1, 1999
and the tax sharing agreement dated as of December 22, 1994.
(s) Business of each Borrower. It engages exclusively in the
business of acquiring pools of receivables and/or payment obligations from its
Affiliates and transferring such assets to various trusts which issue various
Series related to such pools of receivables and/or payment obligations, and such
other activities as may be incidental to or reasonably necessary and appropriate
in connection with the conduct of the foregoing.
(t) Investments. It does not own or hold, directly or
indirectly, any capital stock or equity security of, or any equity interest in,
any Person other than, in the case of AFS Funding, equity interests in AFS
Funding Trust.
(u) Representations and Warranties True and Correct. Each of
its representations and warranties contained in the Transaction Documents is
true and correct in all material respects.
(v) Series Transaction Documents Relating to Eligible
Security. Each of the Series Transaction Documents relating to each Eligible
Security is in full force and effect, no default, unmatured default, servicer
default, trigger event or other like event has occurred and is continuing
thereunder, and all of its representations and warranties set forth in such
Series Transaction Documents are true and correct (except to the extent such
representations and warranties specifically relate to an earlier date, then such
representations and warranties shall be true and correct as of such earlier
date). It has furnished to the Administrative Agent true, correct and complete
copies of the Series Transaction Documents relating to each Eligible Security
constituting part of the Revolver Collateral, each of which document is
certified by the Borrowers to be in full force and effect and shall furnish to
the Administrative Agent all amendments to such documents permitted hereunder
which may be entered into from time to time.
(w) Financial Statements. (i) The copies of (a) its and ACFS's
unaudited balance sheets for their respective fiscal years ended June 30, 2001,
and the related statements of income, shareholders' equity and cash flows for
such fiscal years, and the unaudited consolidated balance sheet as at March 31,
2002, and the related unaudited consolidated statements of income, shareholders'
equity and cash flows for the fiscal quarter then ended and (b) the audited
consolidated balance sheet of ACC for its fiscal year ended on June 30, 2001,
and the related consolidated statements of income, shareholders' equity and cash
flows for such fiscal year and the unaudited consolidated balance sheet as at
March 31, 2002, and the related unaudited consolidated statements of income,
shareholders' equity and cash flows for the fiscal quarter then ended provided
to the Lenders, are complete, true and correct and have been prepared in
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accordance with GAAP consistently applied and present fairly the financial
position of such Persons as of such date and the results of their operations for
such periods, and (ii) the copies of the Accountants' Letter for the fiscal year
ended on June 30, 2001 are true and correct.
(x) Borrowing Base. At the time any Revolver Borrowing Base
Certificate is delivered pursuant hereto, each Asset Backed Security included in
the calculation of the Revolver Borrowing Base is an Eligible Security.
(y) Location. Its principal place of business is 639 Isbell
Road, Suite 390, Reno, Nevada 89509. "AFS Funding Corp." and "AFS SenSub Corp."
are the correct legal names of the Borrowers indicated on the public records of
such Borrower's jurisdiction of organization.
(z) Debt. It has no outstanding Debt other than any Debt
owing to the Lenders hereunder and secured by the Security Agreement and any
Debt secured by Liens in favor of the Master Collateral Agent pursuant to the
Master Collateral and Intercreditor Agreement.
(aa) FSA Series. There are no FSA Series which are not
"Designated FSA Series" under the Master Collateral and Intercreditor Agreement.
(bb) Series Transaction Documents Relating to Shared
Collateral. Each of the Series Transaction Documents relating to the Shared
Collateral is in full force and effect, no default, unmatured default, servicer
default, trigger event or other like event has occurred and is continuing
thereunder, and all of its representations and warranties set forth in such
Series Transaction Documents are true and correct (except to the extent such
representations and warranties specifically relate to an earlier date, then such
representations and warranties shall be true and correct as of such earlier
date). It has furnished to the Administrative Agent true, correct and complete
copies of the Series Transaction Documents relating to the Shared Collateral,
each of which document is certified by the Borrowers to be in full force and
effect and shall furnish to the Administrative Agent all amendments to such
documents permitted hereunder which may be entered into from time to time.
SECTION 4.02 Representations and Warranties with respect to
AFS Funding Trust. AFS Funding represents and warrants as follows on the date of
this Agreement, the Effective Date and the date that any Advance is made,
Continued or Converted, in each case, with reference to the facts and
circumstances then existing:
(a) Organization and Good Standing. The AFS Funding Trust has
been duly organized 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.
(b) Due Qualification. The AFS Funding Trust is 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 properties or the conduct of its business requires
such qualification.
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(c) [Reserved]
(d) No Violation. The consummation of the transactions
contemplated by this Agreement and the other Transaction Documents, and the
fulfillment of the terms of this Agreement and the other Transaction Documents,
shall not conflict with, result in any breach of any of the terms and provisions
of, or constitute (with or without notice or lapse of time) a default under any
indenture, agreement, mortgage, deed of trust or other instrument to which AFS
Funding Trust is a party or by which it is bound or any of its properties are
subject, or result in the creation or imposition of any Lien upon any of its
properties pursuant to the terms of any such indenture, agreement, mortgage,
deed of trust or other instrument, other than this Agreement, or violate any
law, order, rule or regulation applicable to its Governmental Authority having
jurisdiction over it or any of its properties.
(e) No Proceedings. There are no proceedings or investigations
pending or, to its knowledge, threatened against AFS Funding Trust, before any
court or other Governmental Authority having jurisdiction over it or its
properties (A) asserting the invalidity of this Agreement or any of the other
Transaction Documents, (B) seeking to prevent the consummation of any of the
transactions contemplated by this Agreement or any of the other Transaction
Documents, (C) seeking any determination or ruling that might materially and
adversely affect the performance by it of its obligations under, or the validity
or enforceability of, this Agreement or any of the other Transaction Documents,
(D) involving it, the Revolver Collateral or the Shared Collateral, or (E) that
could have a Material Adverse Effect.
(f) No Consents. AFS Funding Trust is not required to obtain
the consent of any other Person which has not been obtained, or any consent,
license, approval or authorization of, or registration or declaration with, any
Governmental Authority in connection with the execution, delivery, performance,
validity or enforceability of this Agreement or the other Transaction Documents.
(g) Compliance With Laws. The AFS Funding Trust has complied
and will comply in all material respects with all applicable laws, rules,
regulations, judgments, agreements, decrees and orders with respect to its
business and properties.
(h) Taxes. The AFS Funding Trust has filed on a timely basis
all tax returns (including, without limitation, foreign, federal, state, local
and otherwise) required to be filed, is not liable for taxes payable by any
other Person and has paid or made adequate provisions for the payment of all
taxes, assessments and other governmental charges due from AFS Funding Trust. No
tax lien or similar adverse claim has been filed, and no claim is being
asserted, with respect to any such tax, assessment or other governmental charge.
(i) No Liens, Etc. The Spread Accounts are and will be owned
by AFS Funding Trust free and clear of any Lien or restrictions on
transferability (other than Liens in favor of the collateral agent specified in
the Spread Account Agreement) and AFS Funding Trust has the full right,
corporate power and lawful authority to assign, transfer and pledge the same and
interests therein. No effective financing statement or other instrument similar
in effect covering all or any part of the Spread Accounts is on file in any
recording office, except such as
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may have been filed in favor of the collateral agent specified in the supplement
to the Spread Account Agreement.
(j) Separate Existence. The AFS Funding Trust is operated, and
since its creation has been operated, as an entity with assets and liabilities
distinct from those of the Borrowers, any of the Contingent Obligors and any
other Affiliates of the Borrowers and any other Person, and the Borrowers and
the Contingent Obligors hereby acknowledge that the Administrative Agent, each
of the Agents and each of the Lenders are entering into the transactions
contemplated by this Agreement in reliance upon AFS Funding Trust's identity as
a separate legal entity from each of the Borrowers, the Contingent Obligors and
each such Affiliate and any other Person. There is not now, nor will there be at
any time in the future, any agreement or understanding between AFS Funding Trust
and any other Person providing for the allocation or sharing of obligations to
make payments or otherwise in respect of any taxes, fees, assessments or other
governmental charges other than the management services agreement dated as of
January 1, 1999 and the tax sharing agreement dated as of December 22, 1994.
(k) Business of AFS Funding Trust. The AFS Funding Trust
engages exclusively in the businesses of establishing, depositing funds in, and
holding the rights to, the Spread Accounts, purchasing and selling Receivables
in connection with securitizations, and holding certificates of beneficial
interests in trust established in connection with securitizations of
Receivables, each as described in the AFSFT Trust Agreement.
(l) Investments. The AFS Funding Trust does not own or hold,
directly or indirectly, any capital stock or equity security of, or any equity
interest in, any Person other than equity interests in the issuers of the
Series.
(m) ERISA Compliance. AFS Funding Trust is in compliance with
ERISA and has not incurred and does not expect to incur any liabilities (except
for premium payments arising in the ordinary course of business) to the Pension
Benefit Guaranty Corporation (or any successor thereto) under ERISA.
(n) Investment Company Status. AFS Funding Trust is not an
"investment company" within the meaning of the Investment Company Act of 1940,
as amended, or is exempt from all provisions of such Act.
SECTION 4.03 Representations and Warranties with respect to
each Contingent Obligor. Each Contingent Obligor represents and warrants as
follows on the date of this Agreement, the Effective Date and the date that any
Advance is made, Continued or Converted, in each case, with reference to the
facts and circumstances then existing:
(a) Organization and Good Standing. It has been duly organized
and is validly existing as a corporation under the laws of the jurisdiction of
its incorporation, 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.
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(b) Due Qualification. It is 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 properties or the
conduct of its business requires such qualification.
(c) Power and Authority. It has the power and authority to execute and
deliver the Transaction Documents to which it is a party and to carry out their
respective terms.
(d) Binding Obligations. The execution, delivery and performance of the
Transaction Documents to which it is a party have been duly authorized by it by
all necessary corporate action. The Transaction Documents to which it is a party
have been executed and delivered by such Contingent Obligor and constitute
legal, valid and binding obligations of such Contingent Obligor enforceable
against such Contingent Obligor in accordance with their respective terms,
except as enforceability may be limited by bankruptcy, insolvency,
reorganization or other similar laws affecting the enforcement of creditors'
rights generally and by equitable limitations on the availability of specific
remedies, regardless of whether such enforceability is considered in a
proceeding in equity or at law.
(e) No Violation. The consummation of the transactions contemplated by
this Agreement and the other Transaction Documents to which it is a party, and
the fulfillment of the terms of this Agreement and the other Transaction
Documents to which it is a party, shall not conflict with, result in any breach
of any of the terms and provisions of, or constitute (with or without notice or
lapse of time) a default under any indenture, agreement, mortgage, deed of trust
or other instrument to which it is a party or by which it is bound or any of its
properties are subject, or result in the creation or imposition of any Lien upon
any of its properties pursuant to the terms of any such indenture, agreement,
mortgage, deed of trust or other instrument, other than this Agreement, or
violate any law, order, rule or regulation applicable to its Governmental
Authority having jurisdiction over it or any of its properties, or in any way
adversely affect its ability to perform its obligations under this Agreement or
the other Transaction Documents to which it is a party.
(f) No Proceedings. There are no proceedings or investigations pending
or, to its knowledge, threatened against it, before any court or other
Governmental Authority having jurisdiction over it or its properties (A)
asserting the invalidity of this Agreement or any of the other Transaction
Documents, (B) seeking to prevent the consummation of any of the transactions
contemplated by this Agreement or any of the other Transaction Documents, (C)
seeking any determination or ruling that might materially and adversely affect
the performance by it of its obligations under, or the validity or
enforceability of, this Agreement or any of the other Transaction Documents, (D)
involving it, either Borrower, AFS Funding Trust, the Revolver Collateral or the
Shared Collateral, or (E) that could have a Material Adverse Effect.
(g) No Consents. It is not required to obtain the consent of any other
Person which has not been obtained, or any consent, license, approval or
authorization of, or registration or declaration with, any Governmental
Authority in connection with the execution, delivery, performance, validity or
enforceability of this Agreement or the other Transaction Documents to which it
is a party.
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(h) Compliance With Laws. It has complied and will comply in all
material respects with all applicable laws, rules, regulations, judgments,
agreements, decrees and orders with respect to its business and properties.
(i) Taxes. It has filed on a timely basis all tax returns (including,
without limitation, foreign, federal, state, local and otherwise) required to be
filed, is not liable for taxes payable by any other Person and has paid or made
adequate provisions for the payment of all taxes, assessments and other
governmental charges due from it. No tax lien or similar adverse claim has been
filed, and no claim is being asserted, with respect to any such tax, assessment
or other governmental charge.
(j) Information on Designated Series. ACFS has delivered a prospectus
and prospectus supplement for each Designated Series to the Administrative
Agent; and each such prospectus and prospectus supplement was true and correct
at the time such Designated Series was issued. The information set forth on
Schedule IV with respect to the Designated Series is true and correct as of the
date hereof.
(k) Information True and Correct. All information heretofore or
hereafter furnished by or on behalf of it, AFS Funding Trust or any Borrower to
any Lender, any Agent or the Administrative Agent in connection with this
Agreement or any Transaction Document or any transaction contemplated hereby or
thereby (other than any Series Transaction Document or any prospectus or
prospectus supplement relating to a Designated Series) is and will be true and
complete in all material respects and does not and will not omit to state a
material fact necessary to make the statements contained therein not misleading.
All information set forth in a Series Transaction Document or a prospectus or
prospectus supplement relating to a Designated Series was true and complete in
all material respects and did not omit to state a material fact necessary to
make the statements contained therein not misleading as of the date of such
document, prospectus or prospectus supplement.
(l) ERISA Compliance. It is in compliance with ERISA and has not
incurred and does not expect to incur any liabilities (except for premium
payments arising in the ordinary course of business) to the Pension Benefit
Guaranty Corporation (or any successor thereto) under ERISA.
(m) Financial or Other Condition. There has been no event which may
have a Material Adverse Effect since March 31, 2002, other than changes in
general economic conditions which might have affected the value of the Revolver
Collateral or the Shared Collateral.
(n) Investment Company Status. It is not an "investment company" within
the meaning of the Investment Company Act of 1940, as amended, or is exempt from
all provisions of such Act.
(o) Representation and Warranties True and Correct. Each of its
representations and warranties contained in the Transaction Documents is true
and correct in all material respects.
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(p) Financial Statements. (i) The copies of (a) its unaudited balance
sheets for their respective fiscal years ended June 30, 2001, and the related
statements of income, shareholders' equity and cash flows for such fiscal years,
and the unaudited consolidated balance sheet as at March 31, 2002, and the
related unaudited consolidated statements of income, shareholders' equity and
cash flows for the fiscal quarter then ended and (b) the audited consolidated
balance sheet of ACC for its fiscal year ended on June 30, 2001, and the related
consolidated statements of income, shareholders' equity and cash flows for such
fiscal year and the unaudited consolidated balance sheet as at March 31, 2002,
and the related unaudited consolidated statements of income, shareholders'
equity and cash flows for the fiscal quarter then ended provided to the Lenders,
are complete, true and correct and have been prepared in accordance with GAAP
consistently applied and present fairly the financial position of such Persons
as of such date and the results of their operations for such periods, and (ii)
the copies of the Accountants' Letter for the fiscal year ended on June 30, 2001
are true and correct.
(q) FSA Series. There are no FSA Series which are not "Designated FSA
Series" under the Master Collateral and Intercreditor Agreement.
ARTICLE V
COVENANTS WITH RESPECT TO THE BORROWERS
SECTION 5.01 Affirmative Covenants. Until this Agreement shall have
been terminated in accordance with its terms, all outstanding Advances
(including principal, interest and fees) and all other amounts owed to the
Lenders under the Transaction Documents shall have been repaid to the Lenders
and all Commitments of the Lenders shall have been terminated, ACFS and the
Borrowers agree as follows:
(a) Reporting Requirements. ACFS will furnish to the Administrative
Agent and each Lender:
(i) as soon as available and in any event within 45 days after the
end of each of the first three quarters of each fiscal year of the
Borrowers and ACC, balance sheets of the Borrowers and ACC (which in the
case of ACC shall be consolidated), for the fiscal quarter of such Person
most recently ended, and the related statements of income, shareholders'
equity and cash flows for such fiscal quarter and for the period beginning
with the end of the fiscal year most recently ended and ending at the end
of such quarter, prepared in accordance with GAAP consistently applied and
certified by an Authorized Officer of the Borrowers or ACC, as the case may
be; plus, with respect to ACC, a certificate from an Authorized Officer of
ACFS certifying the percentage of total delinquencies and repossessed
assets in ACFS's serviced portfolio as of the end of such quarter, together
with back-up financial information with respect thereto as reasonably
requested by the Administrative Agent or any Lender;
(ii) as soon as available and in any event within 90 days after the
end of each fiscal year of the Borrowers and ACC, copies of the balance
sheet of the Borrowers and of the consolidated balance sheet of ACC for the
fiscal year most recently ended, and, in the case of the Borrowers, the
related statements of income, shareholders' equity and cash flows for such
fiscal year, and, in the case of ACC, the related
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consolidated statements of income, shareholders' equity and cash flows for
such fiscal year, prepared in accordance with GAAP consistently applied
together with a report from a firm of independent certified public
accountants selected by ACC and acceptable to the Administrative Agent (the
"Independent Accountants"), to the effect that such firm has audited the
books and records of ACC, in which the Borrowers and ACFS are included as
consolidated Subsidiaries for such fiscal year most recently completed, and
that (a) such audit was made in accordance with GAAP, and accordingly
included such test of the accounting records and such other auditing
procedures as such firm considered necessary in the circumstances, and (b)
based on such audit, such consolidated financial statements for such fiscal
year present fairly, in all material respects, the consolidated financial
position of ACC and its Subsidiaries as the end of such fiscal year and the
result of its operations and its cash flows for such fiscal year in
accordance with GAAP. ACFS will furnish to the Administrative Agent and
each Lender, as soon as available and in any event within 180 days after
the end of each fiscal year of the Borrowers and ACC, copies of a letter
(the "Accountants' Letter") from the Independent Accountants to the effect
that the Independent Accountants are independent accountants with respect
to ACC under the requirements of the American Institute of Certified Public
Accountants and the requirements of the U.S. Securities and Exchange
Commission. ACFS will furnish to the Administrative Agent and each Lender,
as soon as available and in any event within 120 days after the end of each
fiscal year of the Borrowers and ACC, copies of a report (the "Procedures
Report") on the application of agreed upon procedures (such procedures to
be substantially similar to those set forth in the letter attached as
Exhibit I hereto) to certain Revolver Servicer's Certificates and MCA
Servicer's Certificates, including applying certain procedures to three
randomly selected Revolver Servicer's Certificates and MCA Servicer's
Certificates with respect to the delinquency, default and loss statistics
required to be specified therein noting whether any exceptions or errors in
the Revolver Servicer's Certificates and MCA Servicer's Certificates were
found. If the long-term senior unsecured debt of ACC is rated by either S&P
or Moody's below B or Ba2, respectively, or if an Event of Default shall
have occurred and be continuing, then ACFS will cause the Independent
Accountants to deliver a Procedures Report semi-annually to the Lender
Collateral Agent, the Agents, the Administrative Agent and the Rating
Agency, on or before January 31 and July 31 of each year with respect to
the six months ended the immediately preceding September 30 and March 31,
as applicable.
(iii) together with the financial statements and reports described
in (i) or (ii) above, a certificate of an Authorized Officer of the
applicable Person (in the case of information concerning the Borrowers,
such certificate shall be provided by an Authorized Officer of ACFS)
confirming the absence of any Event of Early Termination, Default or Event
of Default as of such date and as of the date of such certificate;
(iv) promptly upon the same becoming available to the Borrowers or
ACC, a copy of each material report, notice, certificate, statement, letter
or other communication relating to the Designated Series, including,
without limitation, each annual accountants' report relating to the
servicer's certificates for any Designated Series required to be delivered
under the terms of the related Series Transaction Documents (together with
a letter permitting the Administrative Agent and the Agents on behalf of
the Lenders and Assignees to rely on such report), each monthly servicer
report, any
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report relating to withdrawals from a Spread Account for a Series for
application to amounts due with respect to another Series or for deposit to
the Spread Account for another Series, and any report or communication
required to be delivered to FSA, any other applicable credit enhancer or
the holders of any of the Designated Series or any Rating Agency (or any
other similar entity) rating any of the Designated Series;
(v) as soon as available and in any event within 10 days after
the end of each month, a collateral summary report in substantially the
form of Exhibit M hereto with respect to all Series then outstanding, in
form and substance acceptable to the Administrative Agent;
(vi) as soon as available and in any event within 10 days after
the end of each month, a report in substantially the form of Exhibit N
hereto on the compliance of the Borrowers with the trigger events and
events of default set forth in the agreements pursuant to which any third
party insurer has insured the Designated Series, and promptly (and in no
event later than 3 days) following the occurrence of any default under any
such agreement, notice of such default (with a copy to the Lender
Collateral Agent);
(vii) as soon as available and in any event on or before each
Determination Date, a Revolver Servicer's Certificate (including a Revolver
Borrowing Base Certificate) and an MCA Servicer's Certificate (including a
Senior Borrowing Base Certificate); and
(viii) any other financial information relating to the Borrowers,
AFS Funding Trust, any of the Contingent Obligors, or any of the Revolver
Collateral or Shared Collateral as shall be reasonably requested by the
Administrative Agent, any Agent or any Lender.
(b) Other Certificates and Information. ACFS will furnish to the
Administrative Agent and each Lender:
(i) Immediately after ACFS or a Borrower knows of the occurrence
of any Event of Early Termination, Event of Default or any event or
condition which with the giving of notice or lapse of time, or both, would
constitute an Event of Early Termination or Event of Default, a certificate
of an Authorized Officer of ACFS specifying the nature of such event or
condition and the action which the Borrowers have taken and/or propose to
take with respect thereto (with a copy to the Lender Collateral Agent);
(ii) Prompt written notice of the occurrence of any default or
event of default under any of the Series Transaction Documents relating to
any of the Eligible Securities or the Shared Collateral, including any
amortization events, facility termination events, insurance agreement
trigger events or events of default, servicer termination events, which
notice shall be given not later than the Business Day following the ACFS's
knowledge of the occurrence thereof and which notice shall (A) specify the
nature thereof, and (B) be accompanied by copies of all notices delivered
to any party to any of
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the Series Transaction Documents relating to such Eligible Security with
respect thereto to the extent not delivered pursuant to any other provision
of this Agreement;
(iii) Prompt written notice if (A) any Debt by any Borrower or
AFS Funding Trust in excess of $50,000 is declared or shall become due and
payable prior to its stated maturity, or is called and not paid when due,
(B) a payment or other default by any Borrower or AFS Funding Trust shall
have occurred under or with respect to any other Debt (other than the
Notes) of such Borrower or AFS Funding Trust in excess of $50,000 or the
holder of any such Debt has the right to declare any such Debt due and
payable prior to its stated maturity as a result of such default, (C) any
drawing has been made under any insurance policy issued by any insurer of
any Series which insurance policy relates to such Series; or (D) any
drawing has been made under any Spread Account relating to any Series with
respect to which the cumulative outstanding drawings from such Spread
Account exceed $250,000;
(iv) Prompt written notice if (A) any citation, summons,
subpoena, order to show cause or other order naming any Borrower, or ACFS
or any Contingent Obligor a party to any proceeding before any Governmental
Authority which related in any way to any Transaction Document, or any
Designated Series, could reasonably be expected to have a Material Adverse
Effect or calls into question the validity or enforceability of any of the
Transaction Documents or any Series Transaction Documents relating to any
Designated Series, and include with such notice a copy of such citation,
summons, subpoena, order to show cause or other order, (B) any lapse or
other termination of any material license, permit, franchise or other
authorization issued to any Borrower, or ACFS or any Contingent Obligor by
any Governmental Authority, the lapse or termination of which could
reasonably be expected to result in a Material Adverse Effect, (C) any
refusal by any Governmental Authority or any other Person to renew or
extend any such material license, permit, franchise or other authorization
with respect to which such refusal could reasonably be expected to result
in a Material Adverse Effect and (D) any dispute between any Borrower, or
ACFS or any Contingent Obligor and any Person, which dispute could
reasonably be expected to have a Material Adverse Effect;
(v) Prompt written notice of any change or publicly announced
consideration of any change by any Rating Agency in the rating of the
unsecured debt of any of the Contingent Obligors that would give rise to an
Event of Early Termination, or a change in or withdrawal of the rating of
any of the Designated Series or Eligible Security;
(vi) Prompt written notice of any change in the rating of any
security which is part of a Designated Series;
(vii) Promptly copies of all amendments to the Series Transaction
Documents relating to any FSA Series, any Designated Series or any Series
relating to Shared Collateral;
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(viii) Promptly copies of all prospectuses and prospectus
supplements relating to Asset Backed Securities rated BBB/Baa2 or BB/Ba2 by
S&P and Moody's which are not issued as part of Designated Series; and
(ix) Promptly furnish such other information and financial data
as the Administrative Agent, any Agent or any Lender may reasonably
request.
(c) Preservation of Corporate Existence and Separate Existence. The
Borrowers will do or cause to be done, and cause AFS Funding Trust to do or
cause to be done, all things necessary on its part to preserve and keep in full
force and effect its existence and good standing as a corporation or business
trust, as applicable, under the laws of the jurisdiction of its incorporation or
establishment, as applicable. The Borrowers will comply, and cause AFS Funding
Trust to comply, fully with the Underlying Transaction Documents to which each
of them is a party so as to maintain each of the Borrower's identity and AFS
Funding Trust's identity as a separate legal entity from its Affiliates and to
make it manifest to third parties that each of the Borrowers and AFS Funding
Trust is an entity with assets and liabilities distinct from its Affiliates.
(d) Compliance with Laws. The Borrowers will comply, and cause AFS
Funding Trust to comply, with all applicable laws, rules and regulations and
orders of any Governmental Authority, the noncompliance with which could have a
Material Adverse Effect and, without limiting the generality of the foregoing,
comply with all applicable laws, rules and regulations and orders of any
Governmental Authority regarding the use of the proceeds of the Borrowings and
the Designated Series, including the provisions of Regulations T, U and X of the
Board of Governors of the Federal Reserve System, as amended.
(e) Payment of Taxes. The Borrowers will pay and discharge, and cause
AFS Funding Trust to pay and discharge, promptly or cause to be paid and
discharged promptly, all Taxes imposed upon each of them or upon their
respective income or profits or upon any of their respective assets; provided
that the payment of any such Tax shall not be required so long as the amount,
applicability or validity thereof shall be contested in good faith by
appropriate proceedings, such Borrower or AFS Funding Trust, as the case may be,
shall have set aside adequate cash reserves in respect thereof, and ACFS shall
have given the Administrative Agent and the Agents prompt notice of such
contest.
(f) Payment of Debt and Performance of Obligations. The Borrowers
will pay and discharge, and cause AFS Funding Trust to pay and discharge, when
due all lawful Debt, obligations and claims for labor, materials and supplies or
otherwise which, if unpaid, could reasonably be expected to (i) have a Material
Adverse Effect or (ii) become a Lien upon any property of any of the Borrowers
or AFS Funding Trust, as the case may be, other than a Permitted Lien, unless
and to the extent only that the validity of such Debt, obligation or claim shall
be contested in good faith and by appropriate proceedings diligently conducted
by such Borrower or AFS Funding Trust, as the case may be, and that any such
contested Debt, obligations or claims shall not constitute or create a Lien upon
property of any of the Borrowers or AFS Funding Trust, as the case may be, and
provided further that ACFS shall give the Administrative Agent and the Agents
prompt notice of any such contest and shall have retained adequate cash reserves
in respect thereof.
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(g) Books and Records; Visitation. The Borrowers will keep, and cause
AFS Funding Trust to keep, proper books of record and account in which complete,
true and correct entries in conformity with GAAP and all requirements of law
shall be made of all material dealings and transactions in relation to its
business and activities; upon reasonable notice, permit representatives of the
Administrative Agent, each Agent and each Lender to visit the offices of the
Borrowers or AFS Funding Trust, as the case may be, or such other place where
such books of record and accounts are kept and to discuss the operations and
financial condition of the Borrowers or AFS Funding Trust, as the case may be,
with the Authorized Officers thereof.
(h) Reserved.
(i) Series Transaction Documents. The Borrowers will deliver a copy
of (i) all Series Transaction Documents relating to a Designated Series to the
Administrative Agent promptly after the closing of such Series together with an
Officer's Certificate of the Borrowers that such copy is true, correct and
complete and (ii) any rating agency presentation prepared and delivered after
the Effective Date relating to a Designated Series. The Administrative Agent
will promptly deliver copies of all such documents to each Agent.
(j) Compliance with Transaction Documents. The Borrowers will comply,
and cause AFS Funding Trust to comply, in all material respects, with the terms
of the Transaction Documents to which each of them is a party, including without
limitation performing any and all additional actions reasonably required by the
Administrative Agent to perfect or continue the perfection of the Lien on the
Revolver Collateral or the Shared Collateral.
(k) Compliance with Series Transaction Documents. The Borrowers will
comply, and cause AFS Funding Trust to comply, in all material respects, with
the terms of the Series Transaction Documents to which each of them is a party
relating to any Designated Series.
(l) Conformity of Issued Designated Series to Relevant Series
Transaction Documents. The Borrowers will cause, and cause AFS Funding Trust to
cause, each Designated Series issued to be in compliance in all material
respects with the terms of the Series Transaction Documents relating to such
Designated Series, including without limitation, the existence of the credit
enhancement and/or overcollateralization contemplated by such documents.
(m) Accountant's Letters; Legal Opinions. ACFS will provide to the
Administrative Agent copies of all accountant's letters and accountant's annual
statements of compliance with respect to each Designated Series and copies of
all opinions of counsel rendered in connection with any Designated Series and a
reliance letter with each such document pursuant to which the Administrative
Agent (on behalf of the Lenders) may rely on all such documents. The
Administrative Agent will deliver copies of all such documents to each Agent.
(n) Interest Rate Caps. The Borrowers will maintain, with respect to
any Eligible Security which bears a fixed rate of interest, at all times on and
after the date such Eligible Security is included in the determination of the
Revolving Borrowing Base hereunder, LIBOR interest rate cap agreements (a)
between a Borrower and any bank or other financial institution whose long-term
rating is at least A+ from S&P and A1 from Moody's and whose short-term
unsecured debt obligation rating is at least A-1/P-1 by S&P and Moody's,
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respectively, and is listed on Schedule III hereto, (b) with an initial
aggregate notional principal amount not less than the outstanding principal
balance at such time and with an amortization schedule setting forth an amount
for each month not less than the product of the original face amount of such
Eligible Security and the Maximum Advance Percentage for such Eligible Security
and such month, (c) with respect to which the Lender Collateral Agent has
received an Interest Rate Hedge Assignment Acknowledgment, (d) which is either
(I) substantially in the form of Exhibit H or (II) otherwise in form and
substance reasonably acceptable to the Required Lenders and the Rating Agency,
(e) with a cap strike price equal to or less than the fixed interest rate
applicable to such Eligible Security minus the sum of 2.25% and, if such
Eligible Security is not rated at least "BBB" or better by S&P and "Baa2" or
better by Moody's, the Usage Fee Rate (as defined in the Supplemental Fee
Letters) and (f) a copy of which has been delivered to the Administrative Agent,
the Agents and the Lender Collateral Agent (each, an "Interest Rate Cap").
The Borrowers shall not, without the prior written consent of the
Required Lenders, (i) sell, assign (by operation of law or otherwise), convey,
transfer, deliver or otherwise dispose of, any of its rights under the Interest
Rate Caps, or create or permit to exist any lien, security interest, option or
other charge or encumbrance upon or with respect to any its rights under the
Interest Rate Caps, except for the assignment to the Lender Collateral Agent;
(ii) cancel or terminate the Interest Rate Cap or consent to or accept any
cancellation or termination thereof; (iii) amend, supplement or otherwise modify
the Interest Rate Cap or give any consent, waiver or approval thereunder; (iv)
waive any default under or breach of the Interest Rate Cap; or (v) take any
other action in connection with the Interest Rate Cap which would impair the
value of the interest or rights of the Borrowers thereunder or which would
impair the interests or rights of the Lender Collateral Agent, any Lender or any
other party under the Security Agreement.
(o) AFS Funding Trust Liens. AFS Funding will cause AFS Funding Trust
not to create, assume, or suffer to exist any Lien on any personal property of
AFS Funding Trust whether now owned or hereafter acquired by AFS Funding Trust;
provided, however, that such restriction shall not apply to: (i) any Lien for
taxes, assessments or other governmental charges or levies not yet subject to
penalties for non-payment or the validity, applicability or amount of which is
being contested in good faith by appropriate legal proceedings and with respect
to which adequate reserves in accordance with GAAP have been established by AFS
Funding Trust; (ii) any Lien which is imposed by law (such as those of
mechanics, carriers and warehousemen), if payment of the obligation secured
thereby is not yet due or the validity, the applicability or amount of which is
being contested in good faith by appropriate legal proceedings and with respect
to which adequate reserves in accordance with GAAP have been established by AFS
Funding Trust; (iii) judgment Liens in existence less than five days after the
entry thereof or with respect to which execution has been stayed, so long as the
aggregate amount of all such judgment Liens at any time does not exceed
$100,000, or judgment Liens the payment of which is covered in full (subject to
a customary deductible) by insurance; and (iv) Liens on Spread Accounts in favor
of the collateral agent specified in the Spread Account Agreement.
(p) AFS Funding Trust Merger, Consolidation, Etc. AFS Funding will
cause AFS Funding Trust not to merge or consolidate with or into, or sell,
convey, transfer, exchange,
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lease or otherwise dispose of (whether in one transaction or in a series of
transactions) all or substantially all of its assets (whether now owned or
hereafter acquired) to, acquire all or substantially all of the assets of, any
Person or division of any Person; or sell, convey, transfer, exchange, lease or
otherwise dispose of any of its assets.
(q) AFS Funding Trust Change in Name. AFS Funding will cause AFS
Funding Trust not to make any change to its jurisdiction of organization or name
or use any trade names, fictitious names, assumed names or "doing business as"
names.
(r) AFS Funding Trust Protection of Collateral. AFS Funding will
cause AFS Funding Trust not to sell, transfer, exchange or otherwise dispose of,
or pledge, mortgage, hypothecate or otherwise encumber (or permit such to occur
or suffer such to exist), any part of its personal property, or permit any Lien
(other than (i) any Lien for taxes, assessments or other governmental charges or
levies not yet subject to penalties for non-payment or the validity,
applicability or amount of which is being contested in good faith by appropriate
legal proceedings and with respect to which adequate reserves in accordance with
GAAP have been established by AFS Funding Trust; (ii) any Lien which is imposed
by law (such as those of mechanics, carriers and warehousemen), if payment of
the obligation secured thereby is not yet due or the validity, the applicability
or amount of which is being contested in good faith by appropriate legal
proceedings and with respect to which adequate reserves in accordance with GAAP
have been established by AFS Funding Trust; (iii) judgment Liens in existence
less than five days after the entry thereof or with respect to which execution
has been stayed, so long as the aggregate amount of all such judgment Liens at
any time does not exceed $100,000, or judgment Liens the payment of which is
covered in full (subject to a customary deductible) by insurance; and (iv) Liens
on Spread Accounts in favor of the collateral agent specified in the Spread
Account Agreement) to be created on or extend to or otherwise arise upon or
burden such property or any part thereof, any interest therein or the proceeds
thereof other than a sale, transfer, exchange, disposal, pledge, mortgage,
hypothecation or encumbrance for the benefit of FSA and/or the Underlying
Trustees permitted under or pursuant to the terms of any of the Underlying
Transaction Documents.
(s) AFS Funding Trust Business. AFS Funding will cause AFS Funding
Trust not to engage in any business or activity other than the business
described in AFSFT Trust Agreement as in effect on the date hereof.
(t) AFS Funding Trust -- Indebtedness. AFS Funding will cause AFS
Funding Trust not to incur, create, assume, suffer to exist or otherwise become
liable with respect to any Debt other than any Debt incurred, from time to time,
in connection with the issuance of any FSA Series in accordance with the AFSFT
Trust Agreement.
(u) Asset Backed Security Distributions; Shared Collateral
Distributions; Spread Account Releases. The Borrowers and ACFS will (i) pay or
cause to be paid to the Lender Collateral Agent all Asset Backed Security
Distributions with respect to Asset Backed Securities constituting Revolver
Collateral, (ii) pay or cause to be paid to the Master Collateral Agent all
Shared Collateral Distributions and (iii) cause AFS Funding Trust to pay to the
Master Collateral Agent (A) all amounts paid to it pursuant to the Spread
Account Agreement and (B) all distributions in respect of the AFSFT Class A
Certificate. The Borrowers will, and will cause
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AFS Funding Trust to, hold all amounts received by any of them (x) in respect of
the Asset Backed Securities, the Shared Collateral and the Residual Certificates
or (y) pursuant to the Spread Account Agreement in trust for the Lenders and
promptly pay such amounts to the Lender Collateral Agent or the Master
Collateral Agent, as the case may be, when received. The Lender Collateral Agent
shall deposit all amounts received by it in respect of the Revolver Collateral
into the Collateral Account for distribution pursuant to Section 6 of the
Security Agreement. The Master Collateral Agent shall deposit all amounts
received by it in respect of the Shared Collateral into the "Collateral Account"
established pursuant to the Master Collateral and Intercreditor Agreement.
(v) Ratings Reaffirmations. On each Ratings Reaffirmation Date, the
Borrowers will obtain from S&P written reaffirmations that the Notes have at
least the Requisite Rating and to distribute copies thereof to the
Administrative Agent and the Agents.
(w) Uncertificated Asset Backed Securities. If any Asset Backed
Securities (whether now owned or hereafter acquired) are, with the consent of
the Required Lenders, uncertificated securities, the Borrowers will promptly
notify the Lender Collateral Agent, the Agents and the Administrative Agent
thereof, and promptly take all actions required to perfect the first priority
security interest of the Lender Collateral Agent therein under applicable law
(including, in any event, Article 8 of the New York UCC, if applicable).
(x) Interest Reserve Account Deposits. The Borrowers will deposit,
with respect to any Eligible Security which bears a floating rate of interest,
on or before the date such Eligible Security is included in the determination of
the Revolving Borrowing Base hereunder, an amount (the "Interest Reserve Deposit
Amount") equal to the sum, with respect to each month the Maximum Advance
Percentage for such Eligible Security will be greater than zero, of the product
(such product for such month, the "Interest Reserve Requirement" for such
Eligible Security) of (a) the product of the original face amount of such
Eligible Security and the Maximum Advance Percentage for such month and such
Eligible Security and (b) the positive difference, if any, of (I) (x) if such
Eligible Security is rated BBB by S&P and Baa2 by Moody's, 2.25% or (y)
otherwise, 3.50% over (II) the spread over LIBOR reflected in such Eligible
Security's coupon rate and (c) the number of days in such month divided by 360.
(y) FSA Series. Upon the issuance of any FSA Series, the Borrowers
will deliver, or cause AFS Funding Trust to deliver, to the Master Collateral
Agent an irrevocable letter of direction from AFS Funding and AFS Funding Trust
to the trustee party to the related supplement to the Spread Account Agreement
instructing such trustee to pay all amounts otherwise payable to AFS Funding or
AFS Funding Trust to the Master Collateral Agent, which letter shall have been
acknowledged and agreed to by such trustee.
(z) AFS Funding Trust -- Modification of Series Transaction
Documents. AFS Funding will cause AFS Funding Trust not to amend or otherwise
modify, without the consent of the Administrative Agent (which consent shall
only be given by the Administrative Agent at the direction of the Required
Lenders at their sole discretion), any of the Series Transaction Documents
relating to any FSA Series, any Designated Series or any Series relating to
Shared Collateral to which it is a party which (i) if the Notes are not rated at
least "BBB-" by S&P or if there exists any Borrowing Base Deficiency, impairs or
adversely affects the value of
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the Revolver Collateral or the Shared Collateral, (ii) permits the creation of
any Lien ranking prior to or on a parity with the Lien of the Security Agreement
with respect to any of the Revolver Collateral or the Lien of the Master
Collateral and Intercreditor Agreement with respect to any of the Shared
Collateral, other than as permitted by the Transaction Documents, (iii)
terminates the Lien of the Lender Collateral Agent on the Revolver Collateral or
the Lien of the Master Collateral Agent on the Shared Collateral or deprives the
Lenders of the security afforded by the Lien of the Security Agreement or the
Lien of the Master Collateral and Intercreditor Agreement, (iv) if the Notes are
not rated at least "BBB-" by S&P or if there exists any Borrowing Base
Deficiency, increases the amount of payments with respect to or accelerates the
scheduled maturity of any FSA Series, or (v) cross-collateralizes any Designated
Series with any Series which is not a Designated Series or amends the Spread
Account Agreement to provide that amounts released from the spread accounts are
payable to any person other than AFS Funding Trust, provided that the foregoing
shall not prohibit AFS Funding Trust from amending any of the Series Transaction
Documents relating to an FSA Series to delete or otherwise reduce or make less
likely to occur the events that constitute trigger events and events of default
under the agreements pursuant to which FSA has insured the FSA Series.
SECTION 5.02 Negative Covenants. Until this Agreement shall have
terminated in accordance with its terms, all outstanding Advances (including
principal, interest and fees) and all other amounts owed to the Lenders under
the Transaction Documents have been repaid to the Lenders and this Agreement
shall have been terminated neither Borrower will directly or indirectly:
(a) Liens. Create, assume, or suffer to exist any Lien on any
Revolver Collateral or Shared Collateral whether now owned or hereafter acquired
by it; provided, however, that such restriction shall not apply to: (i) any
Liens in favor of the Lender Collateral Agent pursuant to the Security Agreement
and Liens in favor of the Master Collateral Agent pursuant to the Master
Collateral and Intercreditor Agreement; (ii) any Lien for taxes, assessments or
other governmental charges or levies not yet subject to penalties for
non-payment or the validity, applicability or amount of which is being contested
in good faith by appropriate legal proceedings and with respect to which
adequate reserves in accordance with GAAP have been established by it; (iii) any
Lien which is imposed by law (such as those of mechanics, carriers and
warehousemen), if payment of the obligation secured thereby is not yet due or
the validity, the applicability or amount of which is being contested in good
faith by appropriate legal proceedings and with respect to which adequate
reserves in accordance with GAAP have been established by it; and (iv) judgment
Liens in existence less than five days after the entry thereof or with respect
to which execution has been stayed, so long as the aggregate amount of all such
judgment Liens at any time does not exceed $100,000, or judgment Liens the
payment of which is covered in full (subject to a customary deductible) by
insurance.
(b) Limitations on Margin Stock. Use any of the net proceeds from the
Borrowings, directly or indirectly, for the purpose of buying or carrying any
Margin Stock.
(c) Stock, Merger, Consolidation, Etc. Merge or consolidate with or
into, or sell, convey, transfer, exchange, lease or otherwise dispose of
(whether in one transaction or in a
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series of transactions) all or substantially all of its assets (whether now
owned or hereafter acquired) to, acquire all or substantially all of the assets
of, any Person or division of any Person; or sell, convey, transfer, exchange,
lease or otherwise dispose of any of its assets; provided however, the foregoing
shall not limit the ability of the Borrowers to sell, convey or transfer, from
time to time, pools of receivables to other Persons in connection with the
issuance of any Series.
(d) Change in Name. Make any change to its jurisdiction of
organization or name or use any trade names, fictitious names, assumed names or
"doing business as" names or any change to its jurisdiction of organization.
(e) Modifications of Series Transaction Documents. Amend or otherwise
modify, without the consent of the Administrative Agent (which consent shall be
given by the Administrative Agent at the direction of the Required Lenders and
which consent shall not unreasonably be withheld) any of the Series Transaction
Documents relating to any FSA Series or any Designated Series or any Series with
respect to Shared Collateral to which it is a party which (i) impairs or
adversely affects the value of the Revolver Collateral or Shared Collateral,
including, without limitation, any amendment or modification which
cross-collateralizes any Designated Series with any Series which is not a
Designated Series or which amends the Spread Account Agreement to provide that
amounts released from the spread accounts are payable to any person other than
AFS Funding Trust, (ii) permits the creation of any Lien ranking prior to or on
a parity with the Lien of the Security Agreement with respect to any of the
Revolver Collateral, other than as permitted by the Transaction Documents, (iii)
permits the creation of any Lien ranking prior to or on a parity with the Lien
of the Master Collateral and Intercreditor Agreement with respect to any of the
Shared Collateral, other than as permitted by the Transaction Documents, (iv)
terminates the Lien of the Lender Collateral Agent or the Master Collateral
Agent on the Revolver Collateral or the Shared Collateral, respectively, or
deprives the Lenders of the security afforded by the Liens of the Security
Agreement and the Master Collateral and Intercreditor Agreement, (v) increases
the amount of payments with respect to or accelerates the scheduled maturity
date of any FSA Series, or (vi) reduces the amount or delays the timing of
amounts due under the Asset Backed Securities owned by the Borrowers or amends
any voting rights with respect thereto, provided that the foregoing shall not
prohibit the Borrowers from amending any of the Series Transaction Documents
relating to an FSA Series to delete or otherwise reduce or make less likely to
occur the events that constitute trigger events and events of default under the
agreements pursuant to which FSA has insured the FSA Series.
(f) Protection of Collateral. Sell, transfer, exchange or otherwise
dispose of, or pledge, mortgage, hypothecate or otherwise encumber (or permit
such to occur or suffer such to exist), any part of the Revolver Collateral,
except as expressly permitted by the Security Agreement, or any part of the
Shared Collateral, except as expressly permitted by the Master Collateral and
Intercreditor Agreement; permit the validity or effectiveness of the Security
Agreement or the Master Collateral and Intercreditor Agreement or any grant
under either such agreement to be impaired; permit the Lien of the Security
Agreement or the Lien of the Master Collateral and Intercreditor Agreement to be
amended, hypothecated, subordinated, terminated or discharged; permit any Person
to be released from any covenants or obligations with respect to the Security
Agreement or the Master Collateral and Intercreditor Agreement, except as may be
expressly permitted hereby or thereby; permit any Lien (other than the Lien of
the Security
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Agreement or the collateral agent specified in the Spread Account Agreement for
the benefit of the insurer of the Designated Series and the related secured
parties) to be created on or extend to or otherwise arise upon or burden the
Revolver Collateral or any part thereof, any interest therein or the proceeds
thereof; take any action that would permit the lien of the Security Agreement
not to constitute a valid security interest in the Revolver Collateral and prior
to all Liens other than the Permitted Liens; permit any Lien (other than the
Lien of the Master Collateral and Intercreditor Agreement) to be created on or
extend to or otherwise arise upon or burden the Shared Collateral or any part
thereof, any interest therein or the proceeds thereof; take any action that
would permit the lien of the Master Collateral and Intercreditor Agreement not
to constitute a valid security interest in the Shared Collateral and prior to
all Liens other than the Permitted Liens; claim any credit on, or make any
deduction from, the principal or interest payable in respect of the Advances or
the Notes (other than amounts withheld in accordance with the Code) or assert
any claim against any present or future Lender or the Administrative Agent, by
reason of the payment of any taxes levied or assessed upon any part of the
Revolver Collateral or the Shared Collateral.
(g) Other Business. Engage in any business or activity other than the
business described in its certificate of incorporation as in effect on the date
hereof.
(h) Indebtedness. Incur, create, assume, suffer to exist or otherwise
become liable with respect to any Debt other than (i) hereunder, and (ii) and
any Debt secured by Liens in favor of the Master Collateral Agent pursuant to
the Master Collateral and Intercreditor Agreement.
(i) Appointment of Trustee. If FSA is not the Controlling Person with
respect to a Designated Series, to the extent AFS Funding has control over the
appointment of the trustee of such Designated Series (initial and any successor
trustee), if such trustee is to be a Person other than Bank One, N.A., appoint
such trustee until AFS Funding has received the prior written consent of the
Administrative Agent.
(j) FSA Series. Not enter into, or permit AFS Funding Trust to enter
into, a transaction creating an FSA Series unless, upon issuance, such FSA
Series is a "Designated FSA Series" under the Master Collateral and
Intercreditor Agreement.
ARTICLE V-A
CONTINGENT OBLIGOR COVENANTS
SECTION 5A.01 Covenant of Each Contingent Obligor. Until this Agreement
shall have been terminated in accordance with its terms, all outstanding
Advances (including principal, interest and fees) have been repaid to the
Lenders and all Commitments of the Lenders shall have been terminated, each
Contingent Obligor will do or cause to be done all things necessary on its part
to preserve and keep in full force and effect its existence and good standing as
a corporation under the laws of its jurisdiction of incorporation.
SECTION 5A.02 Covenants of ACFS. Until this Agreement shall have been
terminated in accordance with its terms, all outstanding Advances (including
principal, interest and fees) have been repaid to the Lenders and all
Commitments of the Lenders shall have been
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terminated, ACFS will:
(a) Continuing Performance as Servicer. So long as ACFS is qualified
to act as Servicer and it is the Servicer under any Designated Series, ACFS
shall not resign as Servicer with respect to such Designated Series without the
prior written consent of the Supermajority Lenders. If FSA is not the
Controlling Party, to the extent ACFS is no longer the Servicer for any
Designated Series and ACFS has control over the appointment of a successor
servicer with respect to such Designated Series under the related Series
Transaction Documents, ACFS shall consult with the Administrative Agent prior to
the appointment of any successor servicer.
(b) Modification of Series Transaction Documents. Not amend or
otherwise modify, without the consent of the Administrative Agent (which consent
shall only be given by the Administrative Agent at the direction of the Required
Lenders at their sole discretion), any of the Series Transaction Documents
relating to any FSA Series, any Designated Series or any Series relating to
Shared Collateral to which it is a party which (i) if the Notes are not rated at
least "BBB-" by S&P or if there exists any Borrowing Base Deficiency, impairs or
adversely affects the value of the Revolver Collateral or the Shared Collateral,
(ii) permits the creation of any Lien ranking prior to or on a parity with the
Lien of the Security Agreement with respect to any of the Revolver Collateral or
the Lien of the Master Collateral and Intercreditor Agreement with respect to
any of the Shared Collateral, other than as permitted by the Transaction
Documents, (iii) terminates the Lien of the Lender Collateral Agent on the
Revolver Collateral or the Lien of the Master Collateral Agent on the Shared
Collateral or deprives the Lenders of the security afforded by the Lien of the
Security Agreement or the Lien of the Master Collateral and Intercreditor
Agreement, (iv) if the Notes are not rated at least "BBB-" by S&P or if there
exists any Borrowing Base Deficiency, increases the amount of payments with
respect to or accelerates the scheduled maturity of any FSA Series, or (v)
cross-collateralizes any Designated Series with any Series which is not a
Designated Series or amends the Spread Account Agreement to provide that amounts
released from the spread accounts are payable to any person other than AFS
Funding Trust, provided that the foregoing shall not prohibit ACFS from amending
any of the Series Transaction Documents relating to an FSA Series to delete or
otherwise reduce or make less likely to occur the events that constitute trigger
events and events of default under the agreements pursuant to which FSA has
insured the FSA Series.
(c) Appointment of Trustee. If FSA is not the Controlling Party, to
the extent ACFS has control over the appointment of the trustee of any
Designated Series (initial and any successor trustee), if such trustee is to be
a Person other than Bank One, N.A., ACFS shall not appoint such trustee until
ACFS has received the prior written consent of the Administrative Agent.
(d) Optional Repurchase. ACFS shall not exercise, nor permit any
Affiliate to exercise, any right (as a servicer under any Designated Series) of
optional repurchase or reconveyance of the pool of receivables held by the trust
which issued the Designated Series without the consent of the Administrative
Agent which consent shall not unreasonably be withheld, if as a result of such
repurchase or reconveyance, there will be any amounts owing to the Lenders with
respect to such Designated Series under this Agreement or other Transaction
Documents.
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(e) Notice of Seller or Servicer Repurchase. ACFS shall provide
immediate written notice to the Administrative Agent and each Agent of any
mandatory purchase by the seller or servicer or reconveyance to the seller or
servicer of the pool of receivables held by the trust which issued any
Designated Series. In addition, ACFS, in its capacity as servicer for a
Designated Series or any Series relating to Shared Collateral, shall, upon
becoming aware of any event which would require the seller or servicer of the
pool of receivables to purchase such receivables, give immediate notice of such
event to the other parties to the relevant Series Transaction Documents and the
Administrative Agent and take all other actions necessary for the seller or
servicer to repurchase such receivables.
(f) Nomination of Lock-box Bank. Subject to FSA's rights as
Controlling Party under the Underlying Transaction Documents to direct the
Servicer, ACFS, as servicer for a Designated Series, shall not terminate any
lock-box relating thereto, and, in the event of resignation of a lock-box bank
relating to any Designated Series, ACFS, in its capacity as servicer for such
Designated Series, shall not nominate a new lock-box bank, in either case
without the prior written consent of the Administrative Agent, which consent
shall not unreasonably be withheld.
(g) FSA Series. ACFS shall not enter into, or permit AFS Funding Trust
to enter into, a transaction creating an FSA Series unless, upon issuance, such
FSA Series is a "Designated FSA Series" under the Master Collateral and
Intercreditor Agreement. ACFS shall not enter into any transaction creating a
Series which is cross-collateralized with any FSA Series unless such
cross-collateralization is pursuant to the Spread Account Agreement.
(h) Administrator of AFS Funding Trust. As "administrator" of AFS
Funding Trust under that certain Administration Agreement, dated as of August
15, 2002, as amended, between AFS Funding Trust and ACFS, ACFS shall cause AFS
Funding Trust to be in compliance with the requirements of Section 5.01(o), (p),
(q), (r), (s), (t), (y), and (z).
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01 Events of Default. Each of the following events shall
constitute an "Event of Default" hereunder:
(a) the Borrowers shall fail to pay any principal of any Advance
within one (1) Business Day after the same becomes due and payable, or shall
fail to pay any interest, fees or other amount payable hereunder within one (1)
Business Day after the same becomes due and payable or any Contingent Obligor
shall fail to pay any amount payable by it hereunder within two (2) Business
Days after the same becomes due and payable; or
(b) any representation or warranty by any Borrower or Contingent
Obligor herein or in any other Transaction Document to which such Borrower or
Contingent Obligor is a party shall prove to have been incorrect in any material
respect when made or deemed made; or
(c) (i) ACFS shall fail to deliver any Revolver Servicer's Certificate
or MCA Servicer's Certificate when required pursuant to Section 5.01(a)(vii) and
such failure continues
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unremedied on the Business Day preceding the related Distribution Date, (ii)
ACFS or any Borrower fails in any material respect to perform or observe any
term, covenant or agreement contained in Section 5.01(o), 5.01(r), or 5.01(w),
or (iii) ACFS or any Borrower fails in any material respect to perform or
observe any term, covenant or agreement contained in Section 5.01(u), 5.02(a),
5.02(f) (other than as described in Section 6.01(i)) or 5.02(h) if the failure
to perform or observe such term, covenant or agreement shall remain unremedied
for ten (10) Business Days (determined in the case of a Lien described in clause
(iv) of Section 5.02(a), after giving effect to the five Business Day cure
period provided in such Section); or
(d) any Borrower or any Contingent Obligor shall fail in any material
respect to perform or observe any term, covenant or agreement contained in this
Agreement or any of the other Transaction Documents (other than as described in
Section 6.01(a), 6.01(b) or 6.01(c) above) to be performed or observed by it if
the failure to perform or observe such other term, covenant or agreement shall
remain unremedied for thirty (30) days after written notice thereof shall have
been given to such Borrower or the Contingent Obligor, as applicable, by the
Administrative Agent or any Agent; or
(e) any Borrower, any Contingent Obligor or any entity which may have
Debt secured under the Master Collateral and Intercreditor Agreement shall fail
to pay any principal of or premium or interest on any Debt (including, without
limitation, obligations under Debt secured in whole or in part by the Shared
Collateral under the Master Collateral and Intercreditor Agreement, but other
than its obligations under this Agreement or the Notes) having a principal sum
of $50,000 or more, with respect to such Borrower or any such entity or
$10,000,000 or more, with respect to any Contingent Obligor, when the same
becomes due and payable (whether by scheduled maturity, required prepayment,
acceleration, demand or otherwise) and such failure shall continue after the
applicable grace period, if any, specified in the agreement or instrument
relating to such Debt; or any other default under any agreement or instrument
relating to any such Debt (including, without limitation, obligations under Debt
secured in whole or in part by the Shared Collateral under the Master Collateral
and Intercreditor Agreement) of such Borrower, any Contingent Obligor or any
entity which may have Debt secured under the Master Collateral and Intercreditor
Agreement or any other event, shall occur and shall continue after the
applicable grace period, if any, specified in such agreement or instrument if
the effect of such default or event is to accelerate, or to permit the
acceleration of, the maturity of such Debt; or any such Debt (including, without
limitation, obligations under Debt secured in whole or in part by the Shared
Collateral under the Master Collateral and Intercreditor Agreement) shall be
declared to be due and payable or required to be prepaid (other than by a
regularly scheduled required prepayment), redeemed, purchased or defeased, or an
offer to prepay, redeem, purchase or defease such Debt shall be required to be
made, in each case, prior to the stated maturity thereof; or
(f) any Insolvency Event shall occur with respect to any Borrower, AFS
Funding Trust, or any of the Contingent Obligors; or
(g) there shall remain undischarged for more than ten days any final
judgment or execution action against AFS Funding Trust, any Borrower, any
Contingent Obligor, any entity created in connection with another Designated
Series or any entity which may have Debt secured under the Master Collateral and
Intercreditor Agreement that, together with other
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outstanding final judgments and execution actions against AFS Funding Trust,
such Borrower, such Contingent Obligor or such entity, as the case may be,
exceeds $50,000 in the aggregate with respect to AFS Funding Trust or any
Borrower or any such entity or $10,000,000 in the aggregate with respect to any
Contingent Obligor; or
(h) the Pension Benefit Guaranty Corporation or the Internal Revenue
Service shall have filed notice of one or more Liens against AFS Funding Trust,
any Borrower or any Contingent Obligor or any of their respective properties or
assets and such Liens shall remain undischarged for more than 30 Business Days
after the date of such notice; or
(i) (i) the Security Agreement (or any Lien purported to be created
thereunder) shall, for any reason, cease to be in full force and effect or be
declared to be null and void, or the Lender Collateral Agent for any reason
shall not or shall cease to hold a valid and perfected first priority Lien in
all Revolver Collateral in favor of the Lenders and the Administrative Agent, or
the validity or enforceability of the Security Agreement (or any Lien purported
to be created thereunder) shall be contested by any Borrower, or any Borrower
shall deny that it has any or further liability or obligation thereunder (or
with respect thereto); or (ii) the Master Collateral and Intercreditor Agreement
(or any Lien purported to be created thereunder) shall, for any reason, cease to
be in full force and effect or be declared to be null and void, or the Master
Collateral Agent for any reason shall not or shall cease to hold a valid and
perfected first priority Lien in all Shared Collateral or the validity or
enforceability of the Master Collateral and Intercreditor Agreement (or any Lien
purported to be created thereunder) shall be contested by any Borrower, or any
Borrower shall deny that it has any or further liability or obligation
thereunder (or with respect thereto); or
(j) the Contingent Obligors and their Affiliates shall not own or
shall cease for any reason to own 100% of the issued and outstanding capital
stock of the Borrowers or AFS Funding shall not own or shall cease for any
reason to own 100% of the beneficial interests in AFS Funding Trust; or
(k) any representation or warranty made by any Contingent Obligor or
the servicer in any of the Series Transaction Documents relating to any
Designated Series or any information delivered to the Lenders with respect to
any Designated Series shall prove to have been incorrect in any material respect
when made or when delivered, which continues to be incorrect for a period of ten
(10) Business Days after written notice thereof shall have been given to the
Borrowers by the Administrative Agent or any Agent; or
(l) any Transaction Document shall, for any reason (except in
accordance with its terms), cease to be in full force and effect, or cease to be
the legally valid, binding and enforceable obligations of the parties thereto,
or any party to any Transaction Document shall, directly or indirectly, contest
in any manner such effectiveness, validity, binding nature or enforceability; or
(m) the aggregate outstanding principal amount of the Notes on any day
shall exceed the Revolver Borrowing Base on such day (a "Revolver Borrowing Base
Deficiency") and such condition continues unremedied for, if such condition
first arises on a Payment Date,
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one Business Day or otherwise, five Business Days or a Senior Borrowing Base
Deficiency shall have occurred and be continuing; or
(n) the Notes do not have at least the Requisite Rating from S&P and
such situation shall remain unremedied for thirty (30) Business Days; or
(o) a Change of Control shall occur with respect to ACC; or
(p) the ratio of the Securitization Assets of ACC to the Tangible Net
Worth of ACC shall exceed 2.5 to 1; or
(q) the ratio of Adjusted EBITDA of ACC for the two most recently
ended fiscal quarters of ACC to the Interest Expense of ACC for such two
quarters shall be less than 1.2 to 1; or
(r) the Tangible Net Worth of ACC shall be less than the sum of (a)
$1,000,000,000 and (b) 75% of the cumulative positive net income (without
deduction for negative net income) of ACC for each fiscal quarter since March
31, 2002, as reported in each annual report on Form 10-K and periodic report on
Form 10-Q filed by ACC with the Securities and Exchange Commission and (c) 75%
of the net proceeds of any equity issued by ACC since March 31, 2002; or
(s) on any Distribution Date, the Cumulative Net Loss Ratio for any
Receivables Pool with a pool factor greater than 25% exceeds the amount set
forth opposite the number of months since such Receivables Pool was securitized
on Schedule II hereto; or
(t) on the last day of any fiscal quarter, the ratio of the Adjusted
Equity of ACC to the outstanding principal amount of all receivables (whether or
not thereafter sold or disposed of) which are serviced by ACFS or any of its
Affiliates at such time is less than 6.5%; or
(u) the aggregate principal amount of all Receivables supporting
outstanding Designated Series with respect to which an event of default,
servicer default, amortization event, early termination event or insurance
agreement event of default or other similar event or a Required Spread Account
Increase has occurred and is continuing exceeds the product of (i) 10% and (ii)
the aggregate principal amount of all Receivables supporting outstanding
Designated Series.
SECTION 6.02 Remedies.
(a) Upon the occurrence of any Event of Default or at any time
thereafter during the continuance thereof, (i) if such event is an Event of
Default specified in clause (f) of Section 6.01, the Commitments shall
immediately and automatically terminate and the Borrowings, all accrued and
unpaid interest thereon and all other amounts owing hereunder and under the
Notes shall immediately become due and payable, and the Administrative Agent
may, and upon the direction of the Required Lenders shall, exercise any and all
remedies and other rights provided herein or in the Transaction Documents,
including its rights with respect to the Revolver Collateral and the Shared
Collateral and (ii) if such event is any other Event of Default,
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any or all of the following actions may be taken: (A) with the consent of the
Required Lenders, the Administrative Agent may, and upon the direction of the
Required Lenders shall, by notice to the Borrowers, declare the Commitments to
be terminated forthwith, whereupon the Commitments shall immediately terminate,
and (B) with the consent of the Required Lenders, the Administrative Agent may,
and upon the direction of the Required Lenders shall, by notice of default to
the Borrowers, declare the Borrowings, all accrued and unpaid interest thereon,
and all other amounts owing hereunder to be forthwith due and payable, whereupon
the same shall immediately become due and payable, and the Administrative Agent
may, and upon the direction of the Required Lenders shall, exercise any and all
remedies and other rights provided herein or in the Transaction Documents,
including its rights with respect to the Revolver Collateral and the Shared
Collateral. Except as otherwise provided in this Section, presentment, demand,
protest and all other notices of any kind are hereby expressly waived. Each
Borrower and each Contingent Obligor hereby further expressly waives and
covenants not to assert any appraisement, valuation, stay, extension, redemption
or similar laws, now or at any time hereafter in force which might delay,
prevent or otherwise impede the performance or enforcement of any Transaction
Document.
(b) In the event that the Commitments shall have been terminated or
the Borrowings shall have been declared due and payable pursuant to the
provisions of this Section, any funds received by the Administrative Agent and
the Lenders from or on behalf of any Borrower shall be applied by the
Administrative Agent and the Lenders in liquidation of the Borrowings and the
obligations of the Borrowers hereunder and under the Notes in the manner and
order set forth in the Security Agreement.
ARTICLE VI-A
EVENTS OF EARLY TERMINATION
SECTION 6A.01 Events of Early Termination. An "Event of Early
Termination" shall occur hereunder if each of the following is true:
(a) no Event of Default shall have occurred and be continuing; and
(b) the aggregate principal amount of all Receivables supporting
outstanding Designated Series with respect to which an event of default,
servicer default, amortization event, early termination event or insurance
agreement event of default or other similar event or a Required Spread Account
Increase has occurred and is continuing exceeds the product of (i) 5% and (ii)
the aggregate principal amount of all Receivables supporting outstanding
Designated Series.
SECTION 6A.02 Consequences. Upon the occurrence of any Event of Early
Termination or at any time thereafter during the continuance thereof, the
Required Lenders may declare that the Commitments shall immediately be
terminated and the Borrowers shall not be permitted to borrow and the Lenders
shall not be required to make any new Advances to the Borrowers hereunder.
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ARTICLE VII
THE AGENT
SECTION 7.01 Appointment.
(a) Each Lender and each Agent hereby irrevocably designates and
appoints the Administrative Agent as agent of such Lender or Agent under this
Agreement, and each such Lender and Agent irrevocably authorizes the
Administrative Agent, as the agent for such Lender or Agent, to take such action
on its behalf under the provisions of this Agreement and the other Related
Documents and to exercise such powers and perform such duties hereunder and
thereunder as are expressly delegated to the Administrative Agent by the terms
of this Agreement and the other Transaction Documents, together with such other
powers as are reasonably incidental thereto, and Deutsche Bank Trust Company
Americas hereby accepts such appointment. Each Lender in each Lender Group
hereby irrevocably designates and appoints the Agent for such Lender Group as
the agent of such Lender under this Agreement, and each such Lender irrevocably
authorizes such Agent, as the agent for such Lender, to take such action on its
behalf under the provisions of the Transaction Documents and to exercise such
powers and perform such duties thereunder as are expressly delegated to such
Agent by the terms of the Transaction Documents, together with such other powers
as are reasonably incidental thereto. Notwithstanding any provision to the
contrary elsewhere in this Agreement, neither the Administrative Agent nor any
Agent (the Administrative Agent and each Agent being referred to in this Article
as a "Note Agent") shall have any duties or responsibilities, except those
expressly set forth herein, or any fiduciary relationship with any Lender, and
no implied covenants, functions, responsibilities, duties, obligations or
liabilities shall be read into this Agreement or otherwise exist against any
Note Agent.
(b) Each Lender, each Agent and the Administrative Agent hereby
appoints Deutsche Bank Trust Company Americas as Lender Collateral Agent under
the Security Agreement and Deutsche Bank Trust Company Americas hereby accepts
such appointment, subject, in each case, to the terms and conditions set forth
in the Security Agreement.
(c) Each Lender hereby authorizes the appointment of Deutsche Bank
Trust Company Americas as Master Collateral Agent under the Master Collateral
and Intercreditor Agreement, subject to the terms and conditions set forth
therein.
SECTION 7.02 Delegation of Duties. Each Note Agent may execute any of
its duties hereunder or under any of the Transaction Documents by or through
agents or attorneys-in-fact and shall be entitled to advice of counsel
concerning all matters pertaining to such duties. No Note Agent shall be
responsible for the negligence or misconduct of any agents or attorneys-in-fact
selected by it with reasonable care.
SECTION 7.03 Exculpatory Provisions. No Note Agent nor any of its
officers, directors, employees, agents, attorneys-in-fact or Affiliates shall be
(a) liable to any of the Lenders for any action lawfully taken or omitted to be
taken by it or such Person under or in connection with any of the other
Transaction Documents (except for its or such Person's own gross negligence or
willful misconduct) or (b) responsible in any manner to any of the Lenders for
any recitals, statements, representations or warranties made by any Borrower,
AFS Funding
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Trust, any Contingent Obligor, the Master Collateral Agent or the Lender
Collateral Agent or any officer thereof contained in any of the other
Transaction Documents or in any certificate, report, statement or other document
referred to or provided for in, or received by such Note Agent under or in
connection with, any of the other Transaction Documents or for the value,
validity, effectiveness, genuineness, enforceability or sufficiency of this
Agreement or any of the other Transaction Documents or for any failure of any
Borrower, AFS Funding Trust, any Contingent Obligor, the Master Collateral Agent
or the Lender Collateral Agent to perform its obligations thereunder. No Note
Agent shall be under any obligation to any Lender to ascertain or to inquire as
to the observance or performance of any of the agreements contained in, or
conditions of, any of the other Transaction Documents, or to inspect the
properties, books or records of any Borrower, AFS Funding Trust, any Contingent
Obligor, any trustee for any Designated Series, the Master Collateral Agent or
the Lender Collateral Agent.
SECTION 7.04 Reliance by Agents. Each Note Agent shall be entitled to
rely, and shall be fully protected in relying, upon any writing, resolution,
notice, consent, certificate, affidavit, letter, cablegram, telegram, telecopy,
telex or teletype message, written statement, order or other document or
conversation believed by it to be genuine and correct and to have been signed,
sent or made by the proper Person or Persons and upon advice and statements of
legal counsel (including counsel to such Note Agent), independent accountants
and other experts selected by such Note Agent. Each Note Agent shall be fully
justified in failing or refusing to take any action under any of the Transaction
Documents unless it shall first receive such advice or concurrence of the
Required Lenders as it deems appropriate or it shall first be indemnified to its
satisfaction (i) in the case of the Administrative Agent, by the Committed
Lenders or (ii) in the case of an Agent, by the Committed Lenders in its Lender
Group, against any and all liability and expense which may be incurred by it by
reason of taking or continuing to take any such action. The Administrative Agent
shall in all cases be fully protected in acting, or in refraining from acting,
under any of the Transaction Documents in accordance with a request of the
Required Lenders (or their Agents), and such request and any action taken or
failure to act pursuant thereto shall be binding upon all present and future
Lenders. Each Agent shall in all cases be fully protected in acting, or in
refraining from acting, under any of the Related Documents in accordance with a
request of (i) Lenders in its Lender Group having Percentage Interests
aggregating greater than 50% of the aggregate Percentage Interests of all
Lenders in such Lender Group, and (ii) Committed Lenders in its Lender Group
having Commitments aggregating greater than 50% of the aggregate Commitments of
all Committed Lenders in such Lender Group, and such request and any action
taken or failure to act pursuant thereto shall be binding upon all present and
future Lenders in such Lender Group.
SECTION 7.05 Notices. No Note Agent shall be deemed to have knowledge
or notice of the occurrence of any breach of this Agreement or the occurrence of
any Default, Event of Default or Event of Early Termination unless such Note
Agent has received notice from the Borrowers, the Lender Collateral Agent, the
Master Collateral Agent, any Note Agent or any Lender referring to this
Agreement, describing such event. In the event that a Note Agent receives such a
notice, such Note Agent promptly shall give notice thereof to the other Note
Agents and the Lenders. The Administrative Agent shall take such action with
respect to such event as shall be reasonably directed by the Required Lenders,
and each Agent shall take such action with respect to such event as shall be
reasonably directed by (i) Lenders in its Lender Group having Percentage
Interests aggregating greater than 50% of the aggregate Percentage
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Interests of all Owners in such Lender Group, and (ii) Committed Lenders in its
Lender Group having Commitments aggregating greater than 50% of the aggregate
Commitments of all Committed Lenders in such Lender Group; provided that unless
and until such Note Agent shall have received such directions, such Note Agent
may (but shall not be obligated to) take such action, or refrain from taking
such action, with respect to such event as it shall deem advisable in the best
interests of the Lenders or of the Lenders in its Lender Group, as applicable.
SECTION 7.06 Non-Reliance on Agents and Other Lenders. Each Lender
expressly acknowledges that neither any Note Agent nor any of its officers,
directors, employees, agents, attorneys-in-fact or Affiliates has made any
representations or warranties to it and that no act by any Note Agent hereafter
taken, including any review of the affairs of any Borrower, any Contingent
Obligor, any trustee for any Designated Series, the Master Collateral Agent or
the Lender Collateral Agent shall be deemed to constitute any representation or
warranty by such Note Agent to any Lender. Each Lender represents to the
Administrative Agent and the Agent for its Lender Group that it has,
independently and without reliance upon any Note Agent or any other Lender, and
based on such documents and information as it has deemed appropriate, made its
own appraisal of and investigation into the value and creditworthiness of the
Revolver Collateral, the Shared Collateral, the business, operations, property,
financial and other condition and creditworthiness of each Borrower, AFS Funding
Trust, each Contingent Obligor, trustee of each Designated Series, the Master
Collateral Agent or the Lender Collateral Agent and made its own decision to
enter into this Agreement and its Commitment and make Advances hereunder. Each
Lender also represents that it will, independently and without reliance upon any
Note Agent or any other Lender, and based on such documents and information as
it shall deem appropriate at the time, continue to make its own analysis,
appraisals and decisions in taking or not taking action under any of the
Transaction Documents, and to make such investigation as it deems necessary to
inform itself as to the value and creditworthiness of the Revolver Collateral,
the Shared Collateral, the business, operations, property, financial and other
condition and creditworthiness of each Borrower, AFS Funding Trust, each
Contingent Obligor, trustee of each Designated Series, the Master Collateral
Agent or the Lender Collateral Agent. Except for notices, reports and other
documents received by the Administrative Agent under Section 5.01(a) or 5.01(b)
hereof, the Administrative Agent shall not have any duty or responsibility to
provide any Agent or any Lender with any credit or other information concerning
the business, operations, property, condition (financial or otherwise),
prospects or creditworthiness of any Borrower, AFS Funding Trust, any Contingent
Obligor, any trustee of any Designated Series, the Master Collateral Agent or
the Lender Collateral Agent which may come into the possession of the
Administrative Agent or any of its officers, directors, employees, agents,
attorneys-in-fact or Affiliates.
SECTION 7.07 Indemnification. The Committed Lenders severally and not
jointly agree to indemnify the Administrative Agent and the Lender Collateral
Agent in their respective capacities as such (without limiting the obligation
(if any) of the Borrowers to reimburse the Administrative Agent or the Lender
Collateral Agent for any such amounts), ratably according to their respective
Lending Percentages (or, if the Commitments have been terminated, Percentage
Interests), from and against any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
of any kind whatsoever which may at any time (including at any time following
the payment of the obligations under this Agreement) be imposed on, incurred by
or asserted against the
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Administrative Agent or the Lender Collateral Agent, as the case may be, in any
way relating to or arising out of this Agreement, the Security Agreement or any
documents contemplated by or referred to herein or therein or the transactions
contemplated hereby or thereby or any action taken or omitted by the
Administrative Agent or the Lender Collateral Agent, as the case may be, under
or in connection with any of the foregoing; provided that no Lender shall be
liable for the payment of any portion of such liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
of the Administrative Agent or the Lender Collateral Agent, as the case may be,
resulting from its own gross negligence or willful misconduct. The Committed
Lenders in each Lender Group agree to indemnify the Agent for such Lender Group
in its capacity as such (without limiting the obligation (if any) of the
Borrowers to reimburse such Agent for any such amounts), ratably according to
their respective Lending Percentages (or, if the Commitments have been
terminated, Percentage Interests), from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind whatsoever which may at any time
(including at any time following the payment of the obligations under this
Agreement) be imposed on, incurred by or asserted against such Agent in any way
relating to or arising out of this Agreement, the Security Agreement or any
documents contemplated by or referred to herein or therein or the transactions
contemplated hereby or thereby or any action taken or omitted by such Agent
under or in connection with any of the foregoing; provided that no Lender shall
be liable for the payment of any portion of such liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any Agent resulting from its own gross negligence or willful
misconduct. The agreements in this Section shall survive the termination of this
Agreement.
SECTION 7.08 Agent in its Individual Capacity. Each Note Agent and its
Affiliates may make loans to, accept deposits from and generally engage in any
kind of business with any Borrower, AFS Funding Trust, any Contingent Obligor,
any trustee of any Designated Series, the Master Collateral Agent or the Lender
Collateral Agent as though such Note Agent were not an agent hereunder. Each
Lender acknowledges that each Note Agent may act (i) as administrator and agent
for one or more Conduit Lenders and in such capacity acts and may continue to
act on behalf of each such Conduit Lender in connection with its business, and
(ii) as the agent for certain financial institutions under the liquidity and
credit enhancement agreements relating to this Agreement to which any such
Conduit Lender is party and in various other capacities relating to the business
of any such Conduit Lender under various agreements. A Note Agent in its
capacity as such shall not, by virtue of its acting in any such other
capacities, be deemed to have duties or responsibilities hereunder or be held to
a standard of care in connection with the performance of its duties as Note
Agent other than as expressly provided in this Agreement. Each Note Agent may
act as such without regard to and without additional duties or liabilities
arising from its role as such administrator or agent or arising from its acting
in any such other capacity.
SECTION 7.09 Successor Agent. The Administrative Agent may resign as
Administrative Agent upon ten days' notice to the Lenders, the Agents, the
Lender Collateral Agent and the Borrowers, with such resignation becoming
effective upon a successor agent succeeding to the rights, powers and duties of
the Administrative Agent pursuant to this Section 7.09. If the Administrative
Agent shall resign as Administrative Agent under this Agreement, then the
Required Lenders shall appoint from among the Committed Lenders a successor
agent
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for the Lenders with the written consent of the Borrowers which shall not
be unreasonably withheld. If an Agent shall resign as Agent under this
Agreement, then (i) Lenders in its Lender Group having Percentage Interests
aggregating greater than 50% of the aggregate Percentage Interests of all
Lenders in such Lender Group, and (ii) Committed Lenders in its Lender Group
having Commitments aggregating greater than 50% of the aggregate Commitments of
all Committed Lenders in such Lender Group shall appoint from among the
Committed Lenders in such Lender Group a successor agent for such Lender Group.
Any successor administrative agent or agent shall succeed to the rights, powers
and duties of resigning Note Agent, and the term "Administrative Agent" or
"Agent", as applicable, shall mean such successor administrative agent or agent
effective upon its appointment, and the former Note Agent's rights, powers and
duties as Note Agent shall be terminated, without any other or further act or
deed on the part of such former Note Agent or any of the parties to this
Agreement. After the retiring Note Agent's resignation as Note Agent, the
provisions of this Article VII shall inure to its benefit as to any actions
taken or omitted to be taken by it while it was Note Agent under this Agreement.
In the event that a successor agent is not appointed in accordance with this
Section 7.09, the Administrative Agent may petition a court of competent
jurisdiction to appoint a successor.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01 Amendments, Etc. With the written consent of the Required
Lenders, the Administrative Agent, the Lender Collateral Agent, the Contingent
Obligors and the Borrowers may, from time to time, enter into written
amendments, supplements or modifications of this Agreement and/or the Security
Agreement and/or the Master Collateral and Intercreditor Agreement and, with the
consent of the Required Lenders, the Administrative Agent on behalf of the
Lenders may execute and deliver to any such parties a written instrument waiving
or a consent to a departure from, on such terms and conditions as the
Administrative Agent may specify in such instrument, any of the requirements of
this Agreement or the Security Agreement or any Event of Early Termination,
Default or Event of Default and its consequences; provided, however, that:
(a) no such amendment, supplement, modification, waiver or consent
shall, increase the Commitment Amount of any Lender without its consent or,
without the consent of all Lenders, (i) extend the Stated Maturity Date or,
except pursuant to the provisions of Section 2.09, Commitment Expiration Date,
(ii) decrease the rate, or extend the time of payment, of interest on, or
change, forgive or extend the time of payment of the principal amount of, or
change the pro rata allocation of payments under, any Note, (iii) reduce the
rate of, or extend the date of payment for, any fee payable to Lenders
hereunder, (iv) release all or any part of the Revolver Collateral or the Shared
Collateral except to the extent that the sale or disposition of such collateral
is permitted under the terms of any Transaction Document, (v) change the
provisions of Section 5.01(c), or Sections 8.01 or 8.08, (vi) change the
definitions of "Maximum Advance Percentage", "Borrowing Base", "Eligible
Security", "Interest Period", "Required Lenders", "Revolver Borrowing Base",
"Senior Borrowing Base", "Supermajority Lenders" (vii) extend the date or
decrease the amount of any mandatory prepayment of the Borrowings pursuant to
Section 2.04, (viii) change the sharing provisions among the Lenders, or (ix)
change the several nature of the obligations of the Lenders;
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(b) without the written consent of the Administrative Agent, the
Agents or the Lender Collateral Agent, as the case may be, no such amendment,
supplement, modification or waiver shall amend, modify or waive any provision of
Article VII or otherwise change any of the rights or obligations of the
Administrative Agent, the Agents or the Lender Collateral Agent, as the case may
be, hereunder or under any Transaction Documents or reduce the rate of, or
extend the date of payment for, any fee payable to the Administrative Agent, the
Agents or the Lender Collateral Agent hereunder; and
(c) the consent of each affected Conduit Lender shall be required for
any change to the provisions of Section 8.07 or 8.17.
Any Lender may specify that any such written consent executed by it
shall be effective only with respect to a portion of the Percentage Interests
and the Commitment Amounts, as the case may be, held by it (in which case it
shall specify, by dollar amount, the aggregate amount of Percentage Interests
and Commitment Amounts with respect to which such consent shall be effective)
and in the event of any such specifications, such Lender shall be deemed to have
executed such written consent only with respect to the portion of the Percentage
Interests and the Commitment Amounts so specified. Any such amendment,
supplement modification or waiver shall apply equally to each of the Lenders and
shall be binding upon the parties to the applicable Transaction Document, the
Lenders, the Administrative Agent, the Agents, the Lender Collateral Agent, the
Contingent Obligors and all future holders of the Notes. In the case of any
waiver, the parties to the applicable Transaction Document, the Lenders, the
Agents and the Administrative Agent shall be restored to their former position
and rights hereunder and under the outstanding Notes and other Lender Documents
to the extent provided for in such waiver, and any Default or Event of Default
waived shall not extend to any subsequent or other Default or Event of Default,
or impair any right consequent thereon. The Transaction Documents may not be
amended orally or by any course of conduct.
SECTION 8.02 Notices, Etc. The Contingent Obligors hereby appoint ACC
to act as agent for the Contingent Obligors with respect to the receiving and
giving of any notices or any other written instruction hereunder. The
Administrative Agent is hereby entitled to rely on any communication given or
transmitted by ACC as if such communication were given or transmitted by each
and every Contingent Obligor. All notices, requests and demands to or upon the
respective parties hereto to be effective shall be in writing (including by
telecopy, telegraph or telex), and, unless otherwise expressly provided herein,
shall be deemed to have been duly given or made when delivered by hand, or, in
the case of mail or telecopy notice, when received, or, in the case of
telegraphic notice, when delivered to the telegraph company, or, in the case of
telex notice, when sent, answer back received, addressed as follows or, with
respect to a Lender or Agent other than an initial Lender or Agent, as set forth
in its respective Assignment and Assumption or Joinder Supplement, or to such
other address as may be hereafter notified by the respective parties hereto:
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The Borrowers AFS Funding Corp.
639 Isbell Road, Suite 390
Reno, Nevada 89509
Attention: Chief Financial Officer
Telephone:
Telefax: 702-322-8808
AFS SenSub Corp.
639 Isbell Road, Suite 390
Reno, Nevada 89509
Attention: Chief Financial Officer
Telephone:
Telefax: 702-322-8808
with a copy to:
AmeriCredit Corp.
801 Cherry Street, Suite 3900
Fort Worth, Texas 76102
Attention: Treasurer
Telephone: 817-302-7000
Telefax: 817-302-7942
ACC as agent AmeriCredit Corp.
for the Contingent 801 Cherry Street, Suite 3900
Obligors Fort Worth, Texas 76102
Attention: Treasurer
Telephone: 817-302-7000
Telefax: 817-302-7942
Administrative Deutsche Bank Trust Company Americas
Agent 1761 East St. Andrew Place
Santa Ana, California 92705
Attention:
Telephone: (714) 247-6000
Telefax: (714) 247-6475
Lender Collateral Deutsche Bank Trust Company Americas
Agent 1761 East St. Andrew Place
Santa Ana, California 92705
Attention: Trust Administration - AmeriCredit
Telephone: 714) 247-6000
Telefax: (714) 247-6475
SECTION 8.03 No Waiver; Remedies. No failure on the part of any
Lender, any Agent or the Administrative Agent to exercise, and no delay in
exercising, any right
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hereunder shall operate as a waiver thereof; nor shall any single or partial
exercise of any such right preclude any other or further exercise thereof or the
exercise of any other right. The remedies herein provided are cumulative and not
exclusive of any remedies provided by law.
SECTION 8.04 Costs, Expenses and Indemnification. The Borrowers agree
to pay (on a joint and several basis) all costs and expenses of the
Administrative Agent and each Agent in connection with the preparation,
execution, delivery, modification and amendment of this Agreement, the other
Transaction Documents and the other documents to be delivered hereunder and
thereunder, including the reasonable fees and out-of-pocket expenses of counsel
for the Administrative Agent and each Agent with respect thereto and with
respect to advising such agents as to their respective rights and
responsibilities under this Agreement and such other Transaction Documents. The
Borrowers further agree to pay (on a joint and several basis) all costs and
expenses, if any (including reasonable counsel fees and expenses), of the
Administrative Agent, each Agent and each Lender in connection with the
enforcement of this Agreement, the other Transaction Documents and the other
documents to be delivered hereunder and thereunder, including reasonable counsel
fees and expenses in connection with the enforcement of rights under this
Section 8.04 and all costs and expenses (including reasonable counsel fees and
expenses) in connection with the negotiation of any restructuring or "work-out"
(whether or not consummated) of the obligations of the Borrowers hereunder or
under any Transaction Document. The Borrowers further agree to indemnify (on a
joint and several basis) each Lender, each Agent and the Administrative Agent
and each of their respective affiliates, control persons, officers, directors,
employees and agents (each an "Indemnified Party"), from and against any and all
claims, damages, losses, liabilities and expenses (including reasonable fees and
disbursements of counsel) for which any of them may become liable or which may
be incurred by or asserted against any of them in connection with the
investigation of, preparation for or defense of any pending or threatened claim
or any action or proceeding arising out of, related to or in connection with the
transactions described herein whether or not any Indemnified Party or the
Borrowers is a party thereto, including any transaction in which any proceeds of
any Borrowing are or are proposed to be applied; provided, however, that neither
Borrower shall be liable for any portion of such claims, damages, losses,
liabilities or expenses resulting from an Indemnified Party's gross negligence
or willful misconduct. The provisions of this Section 8.04 shall survive the
termination of this Agreement.
SECTION 8.05 Binding Effect; Termination. This Agreement shall become
effective upon the Effective Date and shall thereafter be binding upon and inure
to the benefit of each of the parties hereto and each of their respective
successors and assigns, except that none of the Borrowers or the Contingent
Obligors shall have the right to assign its rights hereunder or any interest
herein without the prior written consent of all Lenders, the Agents and the
Administrative Agent. This Agreement shall terminate on the date following the
Commitment Expiration Date for all Lenders on which all Advances and other
obligations hereunder shall have been indefeasibly paid in full.
SECTION 8.06 Assignments and Participation.
(a) Each Lender may, but only in accordance with applicable law, at
any time grant participations in all or part of its Commitment or its Advances,
including the payments due to it under this Agreement and its Note (each, a
"Participation"), to any Lender or to any other
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bank, commercial paper conduit or other institution (each, a "Participant").
Each Lender hereby acknowledges and agrees that (A) any such Participation will
not alter or affect such Lender's direct obligations hereunder, and (B) neither
Borrower shall have any obligation to have any communication or relationship
with any Participant. No Participant shall be entitled to sell, transfer,
assign, participate, subparticipate, pledge, hypothecate or otherwise dispose of
(each, a "Transfer") all or any portion of its Participation, without the prior
written consent of the Agent for its Lender Group (which consents shall not be
unreasonably withheld), nor shall any such Transfer be permitted or made except
in accordance with Section 8.06(b). The Borrowers shall be obligated to
indemnify (on a joint and several basis) a Participant for all amounts owing to
it under Sections 2.10, 2.11, 2.13, and 8.04 as if such Participant were a
Lender hereunder; provided in the case of Section 2.11 that such Participant has
complied with the provisions of Section 2.11(c) as if it were a Lender. Each
Lender shall give the Administrative Agent, the Agent for its Lender Group and
the Borrowers notice of the consummation of any sale by it of a Participation.
(b) Each Lender may in accordance with applicable law and this Section
8.06(b), sell or assign (each, an "Assignment"), to any Person (each, an
"Assignee") which is a Permitted Transferee, all or any part of its Commitment
or Advances and its rights and obligations under this Agreement and its Note and
other Transaction Documents pursuant to an agreement substantially in the form
attached hereto as Exhibit D hereto (an "Assignment and Assumption"), executed
by such Assignee and the Lender and delivered to the Administrative Agent for
its acceptance accompanied by a processing and recording fee payable to the
Administrative Agent for its own account of $3,500; provided that in the case of
an assignment of less than all of a Lender's Commitment Amount or Maximum
Conduit Amount, as applicable, to an Assignee which is not a Lender or Support
Party, the portion thereof retained by the assignor Lender and the portion
assigned to the Assignee each shall be not less than $10,000,000 without the
consent of the Borrowers.
From and after the effective date determined pursuant to such
Assignment and Assumption, (x) the Assignee thereunder shall be a party hereto
and, to the extent provided in such Assignment and Assumption, have the rights
and obligations of a Lender hereunder as set forth therein and (y) the
transferor Lender shall, to the extent provided in such Assignment and
Assumption, be released from its Commitment (if any) and other obligations under
this Agreement; provided, however, that after giving effect to each such
Assignment, the obligations released by any such Lender shall not exceed the
obligations assumed by an Assignee or Assignees. Such Assignment and Assumption
shall be deemed to amend this Agreement to the extent, and only to the extent,
necessary to reflect the addition of such Assignee and the resulting adjustment
of Lending Percentages, Liquidity Percentages and Percentage Interests arising
from the Assignment. Upon its receipt and acceptance of a duly executed
Assignment and Assumption, the Administrative Agent shall on the effective date
determined pursuant thereto give written notice of such acceptance to the
Borrowers, the Agents and the Lender Collateral Agent. The Borrowers agree upon
written request of the related Agent and at the Borrowers' expense to execute
and deliver (i) to such Assignee or such Agent a Note, dated the effective date
of such Assignment and Assumption, in an aggregate principal amount equal to the
Advances assigned to, and the Commitment Amount or Maximum Conduit Amount, as
applicable, assumed by, such Assignee, and (ii) to such assignor (so long as
such assignor has not assigned its entire interest) or its Agent, a Note, dated
the effective date of such Assignment
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and Assumption, in an aggregate principal amount equal to the balance of such
assignor Lender's Advances and Commitment Amount, if any, and each assignor
Lender shall cancel and return to the Borrowers its existing Note.
(c) The Administrative Agent shall maintain at its address referred to
in Section 8.02 a copy of each Assignment and Assumption and Joinder Supplement
delivered to and accepted by it and a register for the recordation of the names
and addresses of the Lenders and the Commitment Amount or Maximum Conduit
Amount, as applicable, and principal amount of the Advances owing to, each
Lender from time to time (the "Register"). The entries in the Register shall be
conclusive and binding for all purposes, absent manifest error, and the
Borrowers, the Administrative Agent, the Agents and the Lenders may treat each
Person whose name is recorded in the Register as a Lender hereunder for all
purposes of this Agreement. The Register shall be available for inspection by
the Borrowers, any Agent or any Lender at any reasonable time and from time to
time upon reasonable prior notice.
(d) Each Lender may pledge its Advances or any portion thereof or
interest therein to any Federal Reserve Bank as collateral in accordance with
applicable law without the consent of the relevant Agent or the Borrowers.
(e) Any Lender shall have the option to change its Applicable Lending
Office provided that prior to such change in office such Lender shall have
complied with the provisions of Section 2.11(c), and provided further that such
Lender shall not be entitled to any amounts otherwise payable under Section
2.10, 2.11 or 2.13 resulting solely from such change in office unless such
change in office was mandated by applicable law or by such Lender's compliance
with the provisions of this Agreement.
(f) Each Affected Party shall be entitled to receive additional
payments pursuant to Sections 2.10, 2.11 and 2.13 hereof as though it were a
Lender and such Section applied to its Support Advances, its commitment to
provide Support Advances or to accept an assignment of an Advance or its
obligation under an insurance policy, surety, bond or similar instrument. Each
Affected Party claiming increased amounts described in Section 2.10 shall
furnish, through its related Conduit Lender, to the Administrative Agent the
certificate described in Section 2.10(d) and shall be bound by the provisions of
Section 2.10(c).
(g) In connection with any Assignment or Participation or proposed
Assignment or Participation by a Lender, such Lender shall be entitled to
distribute to any proposed Assignee or Participant any information furnished to
such Lender pursuant to Section 5.01 or otherwise pursuant to this Agreement or
in connection herewith, subject to the provisions of Section 8.18.
(h) Each Lender represents and warrants to the Borrowers that it is a
"Qualified Purchaser" as defined in Section 2(a)(51) of, and pursuant to Rule
3c-7 under, the Investment Company Act of 1940, as amended.
SECTION 8.07 No Proceedings. (a) The Administrative Agent, the Lender
Collateral Agent and each Lender hereby agrees (which agreement shall, pursuant
to the terms of this Agreement, be binding upon its successors and assigns) that
it shall not, for any reason:
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(i) institute proceedings for either Borrower to be adjudicated a
bankrupt or insolvent;
(ii) consent to, join in or cooperate with the institution of
bankruptcy or insolvency proceedings against either Borrower;
(iii) file a petition with respect to either Borrower seeking or
consenting to reorganization or relief under any applicable Federal or
state law relating to bankruptcy;
(iv) consent to the appointment of a receiver, liquidator, assignee,
trustee, sequestrator (or other similar official) of either Borrower or a
substantial part of the property; or
(v) cause or permit either Borrower to make any assignment for the
benefit of its creditors, or admit in writing its inability to pay its
debts generally as they become due, or declare or effect a moratorium on
its debt or take any action in furtherance of any such action.
(b) The Borrowers, the Contingent Obligors, the Administrative Agent,
the Lender Collateral Agent and each Lender hereby agrees (which agreement
shall, pursuant to the terms of this Agreement, be binding upon its successors
and assigns) that it shall not institute against, or join any other Person in
instituting against, any Conduit Lender any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceeding, or other proceeding under any
federal or state bankruptcy or similar law, for one year and a day after the
latest maturing commercial paper note or other obligation (whether or not issued
to fund or maintain Advances) issued by such Conduit Lender is paid. The
provisions of this Section 8.07 shall survive the termination of this Agreement.
SECTION 8.08 Submission to Jurisdiction; Waivers. EACH OF THE PARTIES
HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY:
(A) SUBMITS FOR ITSELF AND ITS PROPERTY IN ANY LEGAL ACTION OR
PROCEEDING RELATING TO THIS AGREEMENT TO WHICH IT IS A PARTY, OR FOR
RECOGNITION AND ENFORCEMENT OF ANY JUDGMENT IN RESPECT THEREOF, TO THE
NON-EXCLUSIVE GENERAL JURISDICTION OF THE COURTS OF THE STATE OF NEW
YORK AND THE UNITED STATES OF AMERICA FOR THE SOUTHERN DISTRICT OF NEW
YORK, AND APPELLATE COURTS FROM ANY THEREOF;
(B) CONSENTS THAT ANY SUCH ACTION OR PROCEEDING MAY BE BROUGHT IN SUCH
COURTS AND WAIVES ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO
THE VENUE OF ANY SUCH ACTION OR PROCEEDING IN ANY SUCH COURT OR
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THAT SUCH ACTION OR PROCEEDING WAS BROUGHT IN AN INCONVENIENT COURT
AND AGREES NOT TO PLEAD OR CLAIM THE SAME;
(C) AGREES THAT SERVICE OF PROCESS IN ANY SUCH ACTION OR PROCEEDING
MAY BE EFFECTED BY MAILING A COPY THEREOF BY REGISTERED OR CERTIFIED
MAIL (OR ANY SUBSTANTIALLY SIMILAR FORM OF MAIL), POSTAGE PREPAID, TO
SUCH PARTY AT ITS ADDRESS SET FORTH IN SECTION 8.02 OR AT SUCH OTHER
ADDRESS OF WHICH THE ADMINISTRATIVE AGENT SHALL HAVE BEEN NOTIFIED
PURSUANT THERETO; AND
(D) AGREES THAT NOTHING HEREIN SHALL AFFECT THE RIGHT TO EFFECT
SERVICE OF PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR SHALL LIMIT
THE RIGHT TO SUE IN ANY OTHER JURISDICTION.
SECTION 8.09 WAIVERS OF JURY TRIAL. EACH OF THE PARTIES HERETO HEREBY
IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE EXTENT PERMITTED BY APPLICABLE
LAW, ANY RIGHT IT MAY HAVE TO TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING
RELATING DIRECTLY OR INDIRECTLY TO THIS AGREEMENT OR ANY OTHER DOCUMENT OR
INSTRUMENT RELATED HERETO AND FOR ANY COUNTERCLAIM THEREIN.
SECTION 8.10 GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE LAW OF THE STATE OF NEW YORK, WITHOUT GIVING
EFFECT TO ITS CONFLICT OF LAW PROVISIONS (OTHER THAN SECTIONS 5-1401 AND 5-1402
OF THE NEW YORK GENERAL OBLIGATIONS LAW).
SECTION 8.11 Execution in Counterparts. This Agreement may be executed
in any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an original
and all of which taken together shall constitute one and the same agreement.
SECTION 8.12 Headings. The headings contained in this Agreement are
for convenience of reference only and shall not affect the construction or
interpretation of any provision of this Agreement.
SECTION 8.13 Severability. Any provisions of this Agreement which are
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions
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hereof, and any such prohibition or unenforceability in any jurisdiction shall
not invalidate or render unenforceable such provisions in any other
jurisdiction.
SECTION 8.14 Integration. All exhibits, schedules and appendices to
this Agreement shall be deemed to be part of this Agreement. Except in the case
of Committed Lenders and their related Conduit Lenders with respect to certain
Support Facilities, this Agreement, together with provisions of the Transaction
Documents referred to herein, embodies the entire agreement and understanding
among the parties hereto with respect to the subject matter hereof and
supersedes all prior agreements and understandings among such parties with
respect to the subject matter hereof.
SECTION 8.15 Right of Set-Off. In addition to any rights and remedies
of the Lenders provided by law, upon the occurrence of an Event of Default and
the acceleration of the obligations owing hereunder and under the Notes, or at
any time upon the occurrence and during the continuance of an Event of Default
under Section 6.01(a), and only under such circumstances, each Lender shall have
the right, without prior notice to either Borrower, any such notice being
expressly waived by each Borrower to the extent not prohibited by applicable
law, to set-off and apply against any indebtedness, whether matured or
unmatured, of such Borrower to such Lender, any amount owing from such Lender to
such Borrower, at, or at any time after, the happening of any of the
above-mentioned events. To the extent not prohibited by applicable law, the
aforesaid right of set-off may be exercised by such Lender against either
Borrower or against any trustee in bankruptcy, custodian, debtor in possession,
assignee for the benefit of creditors, receiver, or execution, judgment or
attachment creditor of such Borrower, or against anyone else claiming through or
against such Borrower or such trustee in bankruptcy, custodian, debtor in
possession, assignee for the benefit of creditors, receiver or execution,
judgment or attachment creditor, notwithstanding the fact that such right of
set-off shall not have been exercised by such Lender prior to the making, filing
or issuance, or service upon such Lender of, or of notice of, any such petition,
assignment for the benefit of creditors, appointment or application for the
appointment of a receiver, or issuance of execution, subpoena, order or warrant.
Each Lender agrees promptly to notify the related Borrower and the
Administrative Agent after any such set-off and application made by such Lender,
provided that the failure to give such notice shall not affect the validity of
such set-off and application.
SECTION 8.16 Limitation of Liability. No claim may be made by any
Borrower, any Contingent Obligor, any Lender, any Agent, the Lender Collateral
Agent or other Person against the Administrative Agent, any Agent, the Lender
Collateral Agent, any Lender, or any directors, officers, employees or agents of
any of them for any special, indirect, consequential or punitive damages in
respect of any claim for breach of contract or any other theory of liability
arising out of or related to the transactions contemplated hereby or by any
Transaction Document, or any act, omission or event occurring in connection
therewith, and each Borrower, each Contingent Obligor, the Lender Collateral
Agent, each Agent and each Lender hereby waives, releases and agrees (on behalf
of itself and any Person claiming by or through it) not to sue upon any claim
for any such damages, whether or not accrued and whether or not known or
suspected to exist in its favor.
SECTION 8.17 No Recourse Against Certain Persons. No recourse under or
with respect to any obligation, covenant or agreement (including any obligation
or agreement
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to pay fees or any other amount) of any Borrower, any Contingent Obligor, any
Lender, any Agent, the Lender Collateral Agent or the Administrative Agent
contained in this Agreement or any other agreement, instrument or document
entered into by it pursuant hereto or in connection herewith shall be had
(unless expressly assumed by such party) against any incorporator, affiliate,
stockholder, partner, officer, employee or director of any Borrower, any
Contingent Obligor, any Agent, any Lender, the Lender Collateral Agent or the
Administrative Agent, as such, 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 each party contained in
this Agreement and all of the other agreements, instruments and documents
entered into by it pursuant hereto or in connection herewith are, in each case,
solely the partnership or corporate obligations of such party, and that no
personal liability whatsoever shall attach to or be incurred by any
incorporator, stockholder, partner, affiliate, officer, employee or director of
such party, as such, or any of them, under or by reason of any of the
obligations, covenants or agreements of any Borrower, any Contingent Obligor,
any Lender, any Agent, the Lender Collateral Agent or the Administrative Agent
contained in this Agreement or in any other such instrument, document or
agreement, or which are implied therefrom, and that any and all personal
liability of every such incorporator, stockholder, partner, affiliate, officer,
employee or director of any Borrower, any Contingent Obligor, any Lender, any
Agent, the Lender Collateral Agent or the Administrative Agent for breaches by
any Borrower, any Contingent Obligor, any Lender, any Agent, the Lender
Collateral Agent or the Administrative Agent 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. The provisions of
this Section 8.17 shall survive the termination of this Agreement.
SECTION 8.18 Treatment of Certain Information. Each Lender, each
Agent, the Lender Collateral Agent and the Administrative Agent agrees (on
behalf of itself and each of its affiliates, directors, officers, employees and
representatives) to use reasonable precautions to keep confidential, in
accordance with its customary procedures for handling confidential information
of the same nature, all non-public information supplied by any Borrower or any
Contingent Obligor pursuant to this Agreement which (a) is identified by such
supplying party as being confidential at the time the same is delivered to such
Lender, such Agent, Lender Collateral Agent or the Administrative Agent, or (b)
constitutes any financial statement, financial projections or forecasts, budget,
compliance certificate, audit report, management letter or accountants'
certification delivered hereunder; provided, however, that nothing herein shall
limit the disclosure of any such information (i) to the extent required by
statute, rule, regulation or judicial process, (ii) on a confidential basis, to
counsel for any of the Lenders, the Agents, the Lender Collateral Agent or the
Administrative Agent, (iii) to bank examiners, internal and external auditors or
accountants, and any analogous counterpart thereof acting in any such capacity,
(iv) to the Administrative Agent, the Lender Collateral Agent, an Agent or a
Lender, (v) in connection with any litigation to which any one or more of the
Lenders, the Agents, the Lender Collateral Agent or the Administrative Agent is
a party, (vi) to any assignee or participant (or prospective assignee or
participant) so long as such assignee or participant (or prospective assignee or
participant) agrees to keep such information confidential on substantially the
same basis as set forth in this Section (which agreement may be in the form
attached as Exhibit E to this Agreement), (vii) to affiliates of the
Administrative Agent, the
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Lender Collateral Agent, an Agent or a Lender, (viii) in the case of a Conduit
Lender, to its administrator or other Person providing similar services to it or
(ix) to the extent it becomes publicly available (other than pursuant to a
violation of the provisions of this Section 8.18).
SECTION 8.19 Certain Payments. Notwithstanding provisions to the
contrary contained in this Agreement, the Notes or the Security Agreement, the
obligations of any Borrower or any Contingent Obligor to make payments of
interest or other amounts which constitute interest to a Lender hereunder or
under any Note shall not be required to the extent that receipt of such payment
by such Lender would be contrary to the provisions of law applicable to such
Lender limiting the maximum rate of interest that may be charged or collection
by such Lender. Without limiting the generality of the foregoing, all
calculations of the rate of interest contracted for, charged or received by a
Lender under this Agreement and the Notes which are made for the purposes of
determining whether such rate of interest exceeds the maximum rate of interest
permitted by applicable law for such Lender shall be made, to the extent
permitted by applicable law, by amortizing, prorating, allocating and spreading
in equal parts during the period of the full stated term of this Agreement, all
interest at any time contracted for, charged or received by such Lender in
connection with the indebtedness evidenced by this Agreement or such Lender's
Note, and then to the extent that any such excess remains, all such excess shall
be automatically credited against and in reduction of the principal balance owed
to such Lender, and any portion of said excess which exceeds the principal
balance owed to such Lender shall be paid by such Lender to the Borrowers
(subject to the provisions of Sections 8.07 and 8.17 and, in the case of a
Conduit Lender, to the condition that such Lender has excess funds available to
it for the purpose of making such payment), it being the intent of parties
hereto that under no circumstances shall the Borrowers be required to pay any
interest in excess of the highest rate permissible under applicable law.
SECTION 8.20 Unenforceability of Guaranteed Obligations Against
Borrowers. If for any reason any Borrower has no legal existence or is under no
legal obligation to discharge any of the Guaranteed Obligations, or if any of
the Guaranteed Obligations have become irrecoverable from any Borrower by
operation of law or for any other reason, the guaranty and the primary payment
obligation provided under Article II-A shall nevertheless be binding on each
Contingent Obligor to the same extent as if such Contingent Obligor at all times
had been the principal obligor on all such Guaranteed Obligations. In the event
that acceleration of the time for payment of the Guaranteed Obligations is
stayed upon the insolvency, bankruptcy or reorganization of any Borrower, or for
any other reason, all such amounts otherwise subject to acceleration under the
terms of any agreement evidencing, securing or otherwise executed in connection
with any Guaranteed Obligation (including this Agreement) shall be immediately
due and payable by the Contingent Obligors.
SECTION 8.21 Waiver of Subrogation. Until the termination hereof and
the payment and performance in full of all Guaranteed Obligations and payment in
full of the principal of, and interest on, the Advances, no Contingent Obligor
shall exercise any rights against any Borrower arising as a result of payment by
any Contingent Obligor under the Article II-A, by way of subrogation or
otherwise, and will not prove any claim in competition with the Administrative
Agent, the Lender Collateral Agent, the Agents or the Lenders in respect of any
payment hereunder in bankruptcy or insolvency proceedings of any nature; no
Contingent Obligor will claim any set-off or counterclaim against any Borrower
in respect of any liability of
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any Contingent Obligor to such Borrower; each Contingent Obligor waives any
benefit of and any right to participate in any collateral which may be held by
the Administrative Agent, the Lender Collateral Agent, the Master Collateral
Agent, the Agents or the Lenders; and notwithstanding any other provision to the
contrary contained herein, each Contingent Obligor hereby irrevocably waives any
and all rights it may have at any time (whether arising directly or indirectly,
by operation of law or by contract) to assert any claim against any Borrower on
account of payments made under Article II-A, including, without limitation, any
and all rights of or claim for subrogation, contribution, reimbursement,
exoneration and indemnity.
SECTION 8.22 Subordination. The payment of any amounts due with
respect to any Debt of any Borrower now or hereafter held by any Contingent
Obligor is hereby subordinated to the prior payment in full of the Guaranteed
Obligations and payment in full of the principal of, and interest on, the
Advances, provided that so long as no default in the payment or performance of
the Guaranteed Obligations has occurred and is continuing and no Default or
Event of Default with respect to payment of the principal of, and interest on,
the Advances has occurred and is continuing, or no demand for payment of any of
the Guaranteed Obligations has been made that remains unsatisfied, such Borrower
may make, and the Contingent Obligors may demand and accept, any payments of
principal of and interest on such subordinated Debt in the amounts, at the rates
and on the dates agreed by such Borrower and any Contingent Obligor, and, if
applicable, as specified in such instruments, securities or other writings as
shall evidence such subordinated Debt. Each Contingent Obligor agrees that after
the occurrence of any default in the payment or performance of the Guaranteed
Obligations or a Default or Event of Default with respect to payment of the
principal of, and interest on, the Advances, such Contingent Obligor will not
demand, sue for or otherwise attempt to collect any such Debt of any Borrower to
such Contingent Obligor until the Guaranteed Obligations and the principal of,
and interest on, the Advances shall have been paid in full. If, notwithstanding
the foregoing sentence, any Contingent Obligor shall collect, enforce or receive
any amounts in respect of such Debt, such amounts shall be collected, enforced
and received by such Contingent Obligor as trustee for the Lenders and be paid
over to the Administrative Agent (for the benefit of the Lenders) on account of
the Guaranteed Obligations without affecting in any manner the liability of such
Contingent Obligor under Article II-A.
SECTION 8.23 Waivers by Contingent Obligors. Each Contingent Obligor
agrees that the Guaranteed Obligations will be paid and performed strictly in
accordance with their respective terms regardless of any law, regulation or
order now or hereafter in effect in any jurisdiction affecting any of such terms
or the rights of the Administrative Agent, the Lender Collateral Agent, the
Agents or the Lenders with respect thereto. Each Contingent Obligor waives
presentment, demand, protest, notice of acceptance, notice of Guaranteed
Obligations incurred and all other notices of any kind, all defenses which may
be available by virtue of any valuation, stay, moratorium law or other similar
law now or hereafter in effect, any right to require the marshaling of assets of
any Borrower, and all suretyship defenses generally. Without limiting the
generality of the foregoing, each Contingent Obligor agrees to the provisions of
any instrument evidencing, securing or otherwise executed in connection with any
of the Borrowings or Advances hereunder and agrees that the Guaranteed
Obligations shall not be released or discharged, in whole or in part, or
otherwise affected by (i) the failure of the Administrative Agent, the Lender
Collateral Agent, the Master Collateral Agent, any Agent or any of the Lenders
to assert any claim or demand or to enforce any right or remedy against any
Borrower;
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(ii) any extensions or renewals of any of the Borrowings or Advances
hereunder; (iii) any rescissions, waivers, amendments or modifications of any of
the terms or provisions of any agreement evidencing, securing or otherwise
executed in connection with the Borrowings, including, without limitation, the
Transaction Documents; (iv) the substitution or release of any entity primarily
or secondarily liable for any obligation of any Borrower under this Agreement or
the other Transaction Documents; (v) the adequacy of any rights the Agents, the
Lenders, the Lender Collateral Agent, the Master Collateral Agent or the
Administrative Agent may have against any collateral or other means of obtaining
repayment of the Guaranteed Obligations; (vi) the impairment of any collateral
securing the Guaranteed Obligations, including without limitation the failure to
perfect or preserve any rights the Administrative Agent, the Lender Collateral
Agent, the Master Collateral Agent, the Agents or the Lenders might have in such
collateral or the substitution, exchange, surrender, release, loss or
destruction of any such collateral; or (vii) any other act or omission which
might in any manner or to any extent vary the risk of any Contingent Obligor or
otherwise operate as a release or discharge of any Contingent Obligor, all of
which may be done without notice to any Contingent Obligor.
SECTION 8.24 Non-Recourse. All obligations of, and claims against, any
Borrower arising under or in connection with this Agreement and the Transaction
Documents and each other agreement, instrument, document or certificate executed
and delivered or issued by such Borrower in connection herewith or therewith are
payable only to the extent that funds are available therefore pursuant to
Section 6 of the Master Collateral and Intercreditor Agreement and Section 6 of
the Security Agreement. No recourse shall be had for payment of any amount of
principal or interest or for payment of any fee or other obligation or claim
arising out of or relating to this Agreement or the Transaction Documents or any
other agreement, instrument, document or certificate executed and delivered or
issued by any Borrower in connection herewith or therewith against such Borrower
except to the extent provided in the Security Agreement and the Master
Collateral and Intercreditor Agreement.
SECTION 8.25 Limited Liability of Lender Collateral Agent. It is
expressly understood and agreed by the parties hereto that (a) this Agreement is
executed and delivered by Deutsche Bank Trust Company Americas, not individually
or personally but solely as Lender Collateral Agent, in the exercise of the
powers and authority conferred and vested in it, (b) the representations,
undertakings and agreements herein made on the part of the Lender Collateral
Agent are made and intended not as personal representations, undertakings and
agreements by Deutsche Bank Trust Company Americas, but are made and intended
for the purpose of binding only the Lender Collateral Agent, and (c) under no
circumstances shall Deutsche Bank Trust Company Americas be personally liable
for the payment of any indebtedness or expenses of the Lender Collateral Agent
or be liable for the breach or failure of any obligation, representation,
warranty or covenant made or undertaken by the Lender Collateral Agent under
this Agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their respective officers thereunto duly authorized, as of the
date first above written.
AFS FUNDING CORP.
By: /s/
---------------------------
Name:
Title:
AFS SENSUB CORP.
By: /s/
---------------------------
Name:
Title:
AMERICREDIT CORP.
By: /s/
---------------------------
Name:
Title:
AMERICREDIT FINANCIAL SERVICES, INC.
By: /s/
---------------------------
Name:
Title:
DEUTSCHE BANK TRUST COMPANY
AMERICAS, not in its individual capacity but
solely as Administrative Agent
By: /s/
---------------------------
Name:
Title:
By: /s/
---------------------------
Name:
Title:
-69-
DEUTSCHE BANK TRUST COMPANY
AMERICAS, not in its individual capacity but
solely as Lender Collateral Agent
By: /s/
---------------------------
Name:
Title:
By: /s/
---------------------------
Name:
Title:
-70-
TAHOE LENDER GROUP
DEUTSCHE BANK AG, NEW YORK BRANCH,
as Agent
By: /s/
--------------------------------------
Name:
Title:
By: /s/
--------------------------------------
Name:
Title:
Address for Notices:
31 West 52nd Street
New York, New York 10019
Attention: Structured Finance
Department/Securitization
Facsimile No.: (212) 469-7185
Type of Lender: TAHOE FUNDING CORP.
Conduit Lender
Maximum Conduit By: /s/
--------------------------------------
Amount: $ Name:
Title:
Address for Notices and Investing Office:
c/o Deutsche Bank AG, New York Branch
31 West 52nd Street
New York, New York 10019
Attention: Structured Finance
Department/Securitization
Facsimile No.: (212) 469-7185
-71-
Type of Lender: DEUTSCHE BANK AG, NEW YORK BRANCH,
Committed Lender
Commitment: $ By: /s/
--------------------------------------
Name:
Title:
By: /s/
--------------------------------------
Name:
Title:
Address for Notices and Investing Office:
Deutsche Bank AG
New York Branch
31 West 52nd Street
New York, New York 10019
Attention: Structured Finance
Department/Securitization
Facsimile No.: (212) 469-7185
-72-
SCHEDULE I
APPLICABLE LENDING OFFICES
Name of Base Rate Eurodollar Rate
Lender Lending Office Lending Office
- ------ -------------- --------------
-73-
SCHEDULE II
CUMULATIVE NET LOSS RATIO TRIGGERS
------------------------------------------------------------
Seasoning Cumulative Net
------------------------------------------------------------
in Months Loss Ratio
------------------------------------------------------------
1 2.54%
------------------------------------------------------------
2 2.54%
------------------------------------------------------------
3 2.54%
------------------------------------------------------------
4 4.24%
------------------------------------------------------------
5 4.24%
------------------------------------------------------------
6 4.24%
------------------------------------------------------------
7 6.01%
------------------------------------------------------------
8 6.01%
------------------------------------------------------------
9 6.01%
------------------------------------------------------------
10 7.86%
------------------------------------------------------------
11 7.86%
------------------------------------------------------------
12 7.86%
------------------------------------------------------------
13 9.65%
------------------------------------------------------------
14 9.65%
------------------------------------------------------------
15 9.65%
------------------------------------------------------------
16 10.53%
------------------------------------------------------------
17 10.53%
------------------------------------------------------------
18 10.53%
------------------------------------------------------------
19 11.64%
------------------------------------------------------------
20 11.64%
------------------------------------------------------------
21 11.64%
------------------------------------------------------------
22 12.50%
------------------------------------------------------------
23 12.50%
------------------------------------------------------------
24 12.50%
------------------------------------------------------------
25 13.14%
------------------------------------------------------------
26 13.14%
------------------------------------------------------------
27 13.14%
------------------------------------------------------------
28 13.61%
------------------------------------------------------------
29 13.61%
------------------------------------------------------------
30 13.61%
------------------------------------------------------------
31 13.93%
------------------------------------------------------------
32 13.93%
------------------------------------------------------------
33 13.93%
------------------------------------------------------------
34 14.14%
------------------------------------------------------------
35 14.14%
------------------------------------------------------------
36 14.14%
------------------------------------------------------------
37 14.27%
------------------------------------------------------------
38 14.27%
------------------------------------------------------------
-74-
------------------------------------------------------------
39 14.27%
------------------------------------------------------------
40 14.34%
------------------------------------------------------------
41 14.34%
------------------------------------------------------------
42 14.34%
------------------------------------------------------------
43 14.37%
------------------------------------------------------------
44 14.37%
------------------------------------------------------------
45 14.37%
------------------------------------------------------------
46 14.38%
------------------------------------------------------------
47 14.38%
------------------------------------------------------------
48 14.38%
------------------------------------------------------------
-75-
SCHEDULE III
APPROVED COUNTERPARTIES
Bank of America
Bank One, NA
Barclays Bank PLC
Credit Suisse First Boston International
Deutsche Bank AG
JPMorgan Chase Bank
Merrill Lynch
Wells Fargo
Lehman Brothers
-76-
SCHEDULE IV
CERTAIN INFORMATION REGARDING DESIGNATED SERIES
-77-
EXHIBIT A
FORM OF NOTE
$[amount] New York, New York
[date]
On the Facility Maturity Date (as defined in the Credit Agreement
hereinafter referred to) the undersigned, AFS FUNDING CORP, a Nevada
corporation, and AFS SENSUB CORP., a Nevada corporation (collectively, the
"Borrowers"), jointly and severally, FOR VALUE RECEIVED, promise to pay to the
order of [[name of Agent], as Agent (the "Agent")][[name of Lender] (the
"Lender")], the principal sum of [amount in words] United States Dollars (U.S.
$[amount in numbers]) or, if less, the aggregate unpaid principal amount of all
Advances made to the Borrowers by [the Lenders in the Lender Group][the Lender]
pursuant to the Credit Agreement.
The Borrowers also promise to pay interest on the unpaid principal
amount hereof from time to time outstanding from the date hereof until paid in
full, at the rates per annum specified in the Credit Agreement. Said interest
shall be payable to the [Agent][Lender] on such dates and at such places as are
specified in the Credit Agreement.
If any payment on this Note shall be specified to be made upon a day
which is not a Business Day (as defined in the Credit Agreement), it shall be
made on the next succeeding Business Day (or, if earlier, on the Facility
Maturity Date), and such extension of time shall in such case be included in
computing interest, if any, in connection with such payment.
Payments of both principal and interest are to be made in lawful money
of the United States of America and in immediately available funds.
This Note evidences indebtedness incurred under, and is subject to the
terms and provisions of and is entitled to the benefits of that certain Credit
Agreement, dated as of August 15, 2002 (as it may be amended from time to time,
the "Credit Agreement"), among the Borrowers, the Contingent Obligors, certain
financial institutions and commercial paper conduits from time to time parties
thereto, as Lenders, the Agents parties thereto, and Deutsche Bank Trust Company
Americas, as Lender Collateral Agent and Administrative Agent. Reference is
hereby made to the Credit Agreement for a statement of its terms and provisions.
The Credit Agreement, among other things, contains provisions with respect to
the acceleration of the maturity of this Note upon the happening of certain
stated events, and for mandatory and optional prepayments of the principal of
this Note prior to maturity, all upon the terms and conditions specified
therein.
This Note is entitled to the benefits of (i) a Revolver Security and
Collateral Agent Agreement, dated as of August 15, 2002, as it may be amended
from time to time, among the Borrowers, the Administrative Agent, the Lender
Collateral Agent and AmeriCredit Financial Services, Inc. and (ii) a Master
Collateral and Intercreditor Agreement, dated as of August 15,
2002, as it may be amended from time to time, among the Borrowers, AmeriCredit
Financial Services, Inc., the Facility Representatives (as defined therein) from
time to time party thereto, the Master Collateral Agent, the Lender Collateral
Agent and the Administrative Agent,
All parties hereto, whether as makers, endorsers, or otherwise,
severally waive presentment for payment, demand, protest and notice of dishonor.
THIS NOTE SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAW
OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO ITS CONFLICT OF LAW
PROVISIONS (OTHER THAN SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK GENERAL
OBLIGATIONS LAW).
AFS FUNDING CORP.
By: ________________________________
Authorized Signatory
AFS SENSUB CORP.
By: ________________________________
Authorized Signatory
-A-2-
EXHIBIT B
FORM OF NOTICE OF BORROWING
[date]
To: Deutsche Bank Trust Company Americas,
as Administrative Agent for the Lenders party
to the Credit Agreement referred to below
1761 East St. Andrew Place
Santa Ana, California 92705
Re: Borrowing under the Credit Agreement, dated as of August 15,
2002 (as it may be amended from time to time, the "Credit
Agreement"; terms used herein and not otherwise defined herein
shall have the respective meanings given thereto in the Credit
Agreement), among the Borrowers, the Contingent Obligors,
certain financial institutions and commercial paper conduits
from time to time parties thereto, as Lenders, the Agents
parties thereto, and Deutsche Bank Trust Company Americas, as
Lender Collateral Agent and Administrative Agent
Ladies and Gentlemen:
The undersigned, AFS Funding Corp., a Nevada corporation, and AFS
SenSub Corp., a Nevada corporation (collectively, the "Borrowers"), pursuant to
the Credit Agreement, hereby request a Borrowing from the Lenders under the
Credit Agreement with the particulars described below:
1. This is a Notice of Borrowing delivered pursuant to Section 2.02(a)
of the Credit Agreement.
2. The date on which the Borrowing requested hereby (the "Subject
Borrowing") is to be made is ________________ (the "Borrowing Date"), which is a
Business Day permitted as a Borrowing Date pursuant to Section 2.02 (a) and 2.02
(b) of the Credit Agreement.
3. The aggregate amount of the Subject Borrowing is $____________./1/
4. The Advance in respect of the Subject Borrowing shall be a [Base
Rate Advance/Eurodollar Rate Advance].
5. The Interest Period with respect to such Eurodollar Rate Advance is
_________/2/.
_________________
/1/ The amount of the Borrowing must be at least $10,000,000.
/2/ Use if any Advance is a Eurodollar Rate Advance.
-B-1-
The undersigned each hereby certifies that the Interest Reserve Account
Deposit for the [Identify Eligible Security], calculated in accordance with
Section 5.01(x) of the Credit Agreement is $_____________.
The undersigned each hereby further certifies that no Event of Default
or Event of Early Termination (or event which with the lapse of time would
constitute such an Event of Default or Event of Early Termination) has occurred
and is continuing or would result from the Subject Borrowing.
The undersigned each hereby further certifies that each of the
conditions set forth in Section 3.02 of the Credit Agreement to the Lenders'
obligations to make the Subject Borrowing has been satisfied.
Very truly yours,
AFS FUNDING CORP.
By: ________________________________
Authorized Signatory
AFS SENSUB CORP.
By: ________________________________
Authorized Signatory
-B-2-
EXHIBIT C
FORM OF NOTICE OF CONVERSION/CONTINUATION
[Date]
To: Deutsche Bank Trust Company Americas,
as Administrative Agent for the Lenders party
to the Credit Agreement referred to below
1761 East St. Andrew Place
Santa Ana, California 92705
Re: Borrowing under the Credit Agreement, dated as of August 15,
2002 (as it may be amended from time to time, the "Credit
Agreement"; terms used herein and not otherwise defined herein
shall have the respective meanings given thereto in the Credit
Agreement), among the Borrowers, the Contingent Obligors,
certain financial institutions and commercial paper conduits
from time to time parties thereto, as Lenders, the Agents
parties thereto, and Deutsche Bank Trust Company Americas, as
Lender Collateral Agent and Administrative Agent
Ladies and Gentlemen:
The undersigned, AFS FUNDING CORP. and AFS SENSUB CORP., refer to the
Credit Agreement, and hereby give you notice, irrevocably, pursuant to Section
2.07(b) of the Credit Agreement that the undersigned hereby elects to [insert
one or more of the following]:
/3/ convert $____________ in aggregate principal amount of Advances
which constitute Base Rate Advances, to Advances which constitute
Eurodollar Rate Advances on ______________ (which is a Business Day).
/4/ convert $____________ in aggregate principal amount of Advances
which constitute Eurodollar Rate Advances with a current Interest
Period ending __________, to Advances which constitute Base Rate
Advances on __________________ (which is a Business Day).
/5/ continue as Advances which constitute Eurodollar Rate Advances
$____________ in aggregate principal amount of Advances which
constitute Eurodollar Rate Advances with a current Interest Period
ending _____________
____________________
/3/ Use if converting Base Rate Advances to Eurodollar Rate Advances.
/4/ Use if converting Eurodollar Rate Advances to Base Rate Advances.
/5/ Use if continuing Eurodollar Rate Advances as Eurodollar Rate
Advances.
-C-1-
on ___________ (which is a Business Day).
The undersigned each hereby certifies that each of the conditions set
forth in Sections 2.07(a) and 3.02 of the Credit Agreement to the Lenders'
obligations to convert or continue make the Subject Borrowing has been
satisfied.
The undersigned each hereby further certifies that no Event of Default
or Event of Early Termination (or event which with the lapse of time would
constitute such an Event of Default or Event of Early Termination) has occurred
and is continuing or would result from the proposed Conversion/Continuation.
Very truly yours,
AFS FUNDING CORP.
By: ________________________________
Authorized Signatory
AFS SENSUB CORP.
By: ________________________________
Authorized Signatory
-C-2-
EXHIBIT D
FORM OF ASSIGNMENT AND ASSUMPTION AGREEMENT
Dated _________
Reference is made to the Credit Agreement, dated as of August 15, 2002
(as it may be amended from time to time, the "Credit Agreement"), among the
Borrowers, the Contingent Obligors, certain financial institutions and
commercial paper conduits from time to time parties thereto, as Lenders, the
Agents parties thereto, and Deutsche Bank Trust Company Americas, as Lender
Collateral Agent and Administrative Agent. Capitalized terms used herein and not
otherwise defined shall have the meanings given them in the Credit Agreement.
______________ (the "Assignor") and ______________ (the "Assignee")
agree as follows:
1. The Assignor hereby sells and assigns to the Assignee, and the
Assignee hereby purchases and assumes from the Assignor, that interest in and to
all of the Assignor's rights and obligations under the Credit Agreement as of
the date hereof which represents the percentage of the Assignor's Commitment
Amount/Maximum Conduit Amount or Maximum Advance Amount, as applicable, and of
the Advances owing to the Assignor as specified in Section 1 of Schedule 1.
After giving effect to such sale and assignment, the Assignee's Commitment
Amount or Maximum Advance Amount, as applicable, and the amount of the Advances
owing to the Assignee will be as set forth in Section 2 of Schedule 1.
2. The Assignor (i) represents and warrants that it is the legal and
beneficial owner of the interest being assigned by it hereunder and that such
interest is free and clear of any adverse claim; (ii) makes no representation or
warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with the Credit Agreement
or the execution, legality, validity, enforceability, genuineness, sufficiency
or value of the Credit Agreement or any other instrument or document furnished
pursuant thereto; and (iii) makes no representation or warranty and assumes no
responsibility with respect to (A) the financial condition of the Borrowers or
the performance or observance by the Borrowers of any of their obligations under
the Credit Agreement or any other instrument or document furnished pursuant
thereto or (B) the Revolver Collateral or the Shared Collateral.
3. The Assignee (i) confirms that it has received a copy of the Credit
Agreement, together with copies of such financial statements and such other
documents and information as it has deemed appropriate to make its own credit
analysis and decision to enter into this Assignment and Assumption; (ii) agrees
that it will, independently and without reliance upon the Administrative Agent,
the Assignor or any other Lender and based on such documents and information as
it shall deem appropriate at the time, continue to make its own credit decisions
in taking or not taking action under the Credit Agreement; (iii) appoints and
authorizes the Administrative Agent to take such action as agent on its behalf
and to exercise such powers under the Credit Agreement as are delegated to the
Administrative Agent by the terms thereof,
together with such powers as are reasonably incidental thereto; (iv) agrees that
it will perform in accordance with their terms all of the obligations which by
the terms of the Credit Agreement are required to be performed by it as a
Lender; [and] (v) confirms that it is a Permitted Transferee [and (vi) attaches
the forms, certificates or statements required by Section 2.11(c) of the Credit
Agreement]/6/.
4. Following the execution of this Assignment and Assumption by the
Assignor and the Assignee, it will be delivered to the Administrative Agent for
acceptance and recording by the Administrative Agent. The effective date of this
Assignment and Assumption (the "Transfer Effective Date") shall be the date of
acceptance thereof by the Administrative Agent, unless a later date is specified
in Section 3 of Schedule 1.
5. Upon such acceptance and recording by the Administrative Agent, as
of the Transfer Effective Date, (i) the Assignee shall be a party to the Credit
Agreement and, to the extent provided in this Assignment and Assumption, have
the rights and obligations of a Lender thereunder and (ii) the Assignor shall,
to the extent provided in this Assignment and Assumption, relinquish its rights
and be released from its obligations under the Credit Agreement.
6. Upon such acceptance and recording by the Administrative Agent, from
and after the Transfer Effective Date, the Administrative Agent shall make all
payments under the Credit Agreement in respect of the interest assigned hereby
(including all payments of principal, interest and commitment fee with respect
thereto) to the Assignee. The Assignor and Assignee shall make all appropriate
adjustments in payments under the Credit Agreement for periods prior to the
Transfer Effective Date directly between themselves.
7. THIS ASSIGNMENT AND ASSUMPTION SHALL BE CONSTRUED IN ACCORDANCE WITH
AND GOVERNED BY THE LAW OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO ITS
CONFLICT OF LAW PROVISIONS (OTHER THAN SECTIONS 5-1401 AND 5-1402 OF THE NEW
YORK GENERAL OBLIGATIONS LAW).
[8. The [Assignor/Assignee] hereby agrees (which agreement shall be
binding upon its successors and assigns) that it shall not institute against, or
join any other Person in instituting against, the [Assignee/Assignor] any
bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding,
or other proceeding under any federal or state bankruptcy or similar law, for
one year and a day after the latest maturing commercial paper note or other
obligation (whether or not issued to fund or maintain Advances) issued by the
[Assignee/Assignor] is paid. The provisions of this Section 8 shall survive the
termination of the Credit Agreement.]/7/
IN WITNESS WHEREOF, the parties hereto have caused this Assignment and
Assumption to be executed by their respective officers thereunto duly
authorized, as of the date first above written, such execution being made on
Schedule 1 hereto.
__________________
/6/ To be included if the Assignee was not created or organized under
the laws of the United States or a political subdivision thereof.
/7/ To be included for the benefit of each party to this Assignment
and Assumption which is a Conduit Lender.
-2-
SCHEDULE 1
to
Assignment and Assumption Agreement
dated ______________
Section 1.
Section 2.
Section 3.
Transfer Date: _________________, ____
[NAME OF ASSIGNOR]
By: ___________________________________
Title:
[NAME OF ASSIGNEE]
By: ___________________________________
Title:
Applicable Lending Offices
Eurodollar Advances:
[Address]
Base Rate Advances:
[Address]
-D-1-
Address for notices
[Address]
Accepted this ____ day of _____________.
DEUTSCHE BANK TRUST COMPANY AMERICAS,
not in its individual capacity but solely
as Administrative Agent
By:____________________________
Title:
Consented to, this ____ day of _____________
AFS FUNDING CORP.
By:____________________________
Title:
AFS SENSUB CORP.
By:____________________________
Title:
-D-2-
EXHIBIT E
FORM OF CONFIDENTIALITY AGREEMENT
FORM OF CONFIDENTIALITY AGREEMENT
[date]
[Insert Name and
Address of Prospective
Assignee or Participant]
Re: Credit Agreement, dated as of August 15, 2002 (as it may be
amended from time to time, the "Credit Agreement"; terms used
herein and not otherwise defined herein shall have the respective
meanings given thereto in the Credit Agreement), among the
Borrowers, the Contingent Obligors, certain financial institutions
and commercial paper conduits from time to time parties thereto,
as Lenders, the Agents parties thereto, and Deutsche Bank Trust
Company Americas, as Lender Collateral Agent and Administrative
Agent
Dear _________________:
As a Lender party to the above-referenced Credit Agreement, we have
agreed with AFS Funding Corp. ("AFS Funding") and AFS SenSub Corp. ("AFS
SenSub") pursuant to Section 8.18 of the Credit Agreement to use reasonable
precautions to keep confidential, except as otherwise provided herein and
therein, non-public information provided either by AFS Funding or AFS SenSub at
the time the same is delivered to us pursuant to the Credit Agreement.
As provided in said Section 8.18, we are permitted to provide you, as a
prospective assignee or participant, with certain of such non-public information
subject to the execution and delivery by you, prior to receiving such non-public
information, of a confidentiality agreement. Such information will not be made
available to you until your execution and return of this Confidentiality
Agreement.
Accordingly, in consideration of the foregoing, you agree (on behalf of
yourself and each of your affiliates, directors, officers, employees and
representatives) that you will use reasonable precautions to keep confidential,
in accordance with its customary procedures for handling confidential
information of the same nature, such non-public information; provided, however,
that nothing herein shall limit the disclosure of any such information (i) to
the extent required by statute, rule, regulation or judicial process, (ii) on a
confidential basis, to your counsel or to counsel for any of the Lenders, the
Agents, the Lender Collateral Agent or the Administrative Agent, (iii) to bank
examiners, auditors or accountants, and any analogous counterpart thereof
-E-1-
acting in any such capacity, (iv) to the Administrative Agent, an Agent, the
Lender Collateral Agent or a Lender, (v) in connection with any litigation to
which you, any one or more of the Lenders, the Agents, the Lender Collateral
Agent or the Administrative Agent is a party, (vi) to your affiliates or the
affiliates of the Administrative Agent, an Agent, the Lender Collateral Agent or
a Lender, (vii) if you are proposed to be a Conduit Lender, to your
administrator or other Person providing similar services to you or (viii) to the
extent it becomes publicly available (other than pursuant to a violation of the
provisions of this Confidentiality Agreement).
Please indicate your agreement to the foregoing by signing at the place
provided below the enclosed copy of this Confidentiality Agreement.
Very truly yours,
[Insert Name of Lender]
By:______________________
Title:
The foregoing is agreed to as of the date of this letter
[Insert name of prospective
Assignee or Participant]
By:_________________________
Title:
-E-2-
EXHIBIT F
FORM OF JOINDER SUPPLEMENT
JOINDER SUPPLEMENT (the "Supplement"), dated as of the date set forth
in Item 1 of Schedule I hereto, among AFS Funding Corp. and AFS SenSub Corp.
(the "Borrowers"), the Lender set forth in Item 2 of Schedule I hereto (the
"Joining Lender"), _____________, as Agent, and Deutsche Bank Trust Company
Americas, as Administrative Agent for the Lenders under, and as defined in, the
Credit Agreement described below (in such capacity, the "Administrative Agent").
W I T N E S S E T H:
WHEREAS, this Supplement is being executed and delivered under the
Credit Agreement, dated as of August 15, 2002 (as it may be amended from time to
time, the "Credit Agreement"; terms used herein and not otherwise defined herein
shall have the respective meanings given thereto in the Credit Agreement), among
the Borrowers, the Contingent Obligors, certain financial institutions and
commercial paper conduits from time to time parties thereto, as Lenders, the
Agents parties thereto, and Deutsche Bank Trust Company Americas, as Lender
Collateral Agent, and Administrative Agent; and
WHEREAS, the party set forth in Item 2 of Schedule I hereto wishes to
become a Lender party to the Credit Agreement;
NOW, THEREFORE, the parties hereto hereby agree as follows:
(a) Upon receipt by the Administrative Agent of an executed counterpart
of this Supplement, to which is attached a fully completed Schedule I and
Schedule II, which has been executed by the Joining Lender, the Administrative
Agent, and the Borrowers, the Administrative Agent will transmit to the
Borrowers and the Joining Lender a Joinder Effective Notice, substantially in
the form of Schedule III to this Supplement (a "Joinder Effective Notice"). Such
Joinder Effective Notice shall be executed by the Administrative Agent and shall
set forth, inter alia, the date on which the joinder effected by this Supplement
shall become effective (the "Joinder Effective Date"). From and after the
Joinder Effective Date, the party set forth in Item 2 of Schedule I hereto shall
be a Lender party to the Credit Agreement for all purposes thereof.
(b) Each of the parties to this Supplement agrees and acknowledges that
at any time and from time to time upon the written request of any other party,
it will execute and deliver such further documents and do such further acts and
things as such other party may reasonably request in order to effect the
purposes of this Supplement.
(c) By executing and delivering this Supplement, the Joining Lender
confirms to and agrees with the Administrative Agent, the Agents and the Lenders
as follows: (i) neither the Lender Collateral Agent nor the Administrative Agent
nor any Agent nor any Lender makes any representation or warranty or assumes any
responsibility with respect to (A) any statements,
-F-1-
warranties or representations made in or in connection with the Credit Agreement
or the execution, legality, validity, enforceability, genuineness, sufficiency
or value of the Credit Agreement or any other instrument or document furnished
pursuant thereto, or the financial condition of the Borrowers, or the
performance or observance by the Borrowers of any of their respective
obligations under the Credit Agreement or any other instrument or document
furnished pursuant hereto or (B) the Revolver Collateral or the Shared
Collateral; (ii) the Joining Lender confirms that it has received copies of such
documents and information as it has deemed appropriate to make its own credit
analysis and decision to enter into this Supplement; (iii) the Joining Lender
will, independently and without reliance upon the Administrative Agent, the
Lender Collateral Agent, any Agent or any other Lender and based on such
documents and information as it shall deem appropriate at the time, continue to
make its own credit decisions in taking or not taking action under the Credit
Agreement; (iv) the Joining Lender appoints and authorizes each of the
Administrative Agent and the Lender Collateral Agent to take such action as
agent on its behalf and to exercise such powers under the Credit Agreement and
the Transaction Documents as are delegated to the Administrative Agent and the
Lender Collateral Agent respectively, by the terms thereof, together with such
powers as are reasonably incidental thereto, all in accordance with the Credit
Agreement and the Transaction Documents; and (vi) the Joining Lender agrees (for
the benefit of the parties hereto, the Agents, the Lender Collateral Agent and
the Lenders) that it will perform in accordance with their terms all of the
obligations which by the terms of the Credit Agreement are required to be
performed by it as a Lender.
(d) Schedule II hereto sets forth administrative information with
respect to the Joining Lender.
(e) THIS SUPPLEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED
BY THE LAW OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO ITS CONFLICT OF
LAW PROVISIONS (OTHER THAN SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK GENERAL
OBLIGATIONS LAW).
IN WITNESS WHEREOF, the parties hereto have caused this Supplement to
be executed by their respective duly authorized officers on Schedule I hereto as
of the date set forth in Item 1 of Schedule I hereto.
-F-2-
SCHEDULE I TO
JOINDER SUPPLEMENT
COMPLETION OF INFORMATION AND
SIGNATURES FOR JOINDER SUPPLEMENT
Re: Credit Agreement, dated as of August 15, 2002 (as it may be
amended from time to time, the "Credit Agreement"), among the
Borrowers, the Contingent Obligors, certain financial
institutions and commercial paper conduits from time to time
parties thereto, as Lenders, the Agents parties thereto, and
Deutsche Bank Trust Company Americas, as Lender Collateral Agent
and Administrative Agent
Item 1: Date of Joinder Supplement: _______________
Item 2: Joining Lender:
Item 3: Signatures of Parties to Agreement:
[NAME OF JOINING LENDERS]
By:___________________________
Name:
Title:
By:___________________________
Name:
Title:
By:___________________________
Name:
Title:
AFS FUNDING CORP.
By:___________________________
Name:
Title:
-F-3-
AFS SENSUB CORP.
By:___________________________
Name:
Title:
DEUTSCHE BANK TRUST COMPANY AMERICAS,
not in its individual capacity, but
solely as Administrative Agent
By:___________________________
Name:
Title:
-F-4-
SCHEDULE II TO
JOINDER SUPPLEMENT
LIST OF INVESTING OFFICES, ADDRESS
FOR NOTICES AND WIRE INSTRUCTIONS
Address for Notices:
Investing Office: Same as above
Wire Instructions: To be provided to the Administrative Agent
-F-5-
SCHEDULE III TO
JOINDER SUPPLEMENT
FORM OF
JOINDER EFFECTIVE NOTICE
To: [Name and address of the Borrowers
and Joining Lender]
The undersigned, as Administrative Agent under the Credit Agreement, dated
as of August 15, 2002 (as it may be amended from time to time, the "Credit
Agreement"), among the Borrowers, the Contingent Obligors, certain financial
institutions and commercial paper conduits from time to time parties thereto, as
Lenders, the Agents parties thereto, and Deutsche Bank Trust Company Americas,
as Lender Collateral Agent and Administrative Agent, acknowledges receipt of
five executed counterparts of a completed Joinder Supplement. [Note: attach
copies of Schedules I and II from such Agreement.] Terms defined in such
Supplement are used herein as therein defined.
Pursuant to such Supplement, you are advised that the Joinder Effective
Date for [Name of Joining Lender] will be _____________.
Very truly yours,
DEUTSCHE BANK TRUST COMPANY AMERICAS,
not in its individual capacity but
solely as Administrative Agent
By:___________________________
Name:
Title:
-F-6-
EXHIBIT G
FORM OF INTEREST RATE HEDGE ASSIGNMENT ACKNOWLEDGEMENT
[Date]
[LIBOR Interest Rate Cap Counterparty]
[Address of LIBOR Interest Rate Cap Counterparty]
Attention:___________________
Re: [Name of Agreement], dated as of ___________, 200_ (as amended,
the "Interest Rate Cap Agreement"), between [Name of Interest
Rate Cap Counterparty] (the "Counterparty") and [AFS Funding
Corp./AFS SenSub Corp.] ("Company")
Ladies and Gentlemen:
Company hereby notifies you that Company has assigned to Deutsche Bank
Trust Company Americas, as Lender Collateral Agent (the "Lender Collateral
Agent"), under the Security Agreement identified below, all of its right, title
and interest in and to any interest rate hedge (each, a "Hedge") entered into
pursuant to the Interest Rate Cap Agreement, including, without limitation, (i)
all rights of Company to receive moneys due under or pursuant to the Hedges,
(ii) claims of Company for damages arising out of or for breach of or default
under the Hedges or the Interest Rate Cap Agreement, (iii) the right of Company
to terminate the Hedges or the Interest Rate Cap Agreement, and to otherwise
exercise all remedies thereunder, and (iv) all proceeds of any and all of the
foregoing. The assignment of all right, title and interest of Company in and to
the Hedges and the Interest Rate Cap Agreement shall be referred to as the
"Assigned Rights".
As used herein, "Security Agreement" shall mean that certain Revolver
Security and Collateral Agent Agreement, dated as of August 15, 2002, among the
Company, [AFS Funding Corp/AFS SenSub Corp.], AmeriCredit Financial Services,
Inc., the Lender Collateral Agent and the Administrative Agent. Capitalized
terms used herein and not otherwise defined shall have the meanings given them
in the Security Agreement.
The Counterparty hereby agrees that it shall make all payments under the
Interest Rate Cap Agreement and the Hedges to the Lender Collateral Agent, as
follows: ABA#021001033, Account: LA Asset Backed, Account#01419663, Ref:
AmeriCredit Residual Fundings, Attn: CDO Administration, or as the Lender
Collateral Agent may from time to time direct. The Lender Collateral Agent shall
be entitled to exercise any and all rights and remedies of Company under the
Interest Rate Cap Agreement and the Hedges to receive such payments in
accordance with the terms hereof and thereof.
-G-1-
All payments to be made under the Interest Rate Cap Agreement and the
Hedges by the Counterparty shall be made by the Counterparty irrespective of,
and without deduction for, any counterclaim, defense, recoupment or set-off
(other than netting for payments owing by Company thereunder in accordance with
the terms of the Interest Rate Cap Agreement and the Hedges) and shall be final,
and the Counterparty will not seek to recover from the Lender Collateral Agent,
Company, any Lender or any other party to the Security Agreement any such
payment once made.
Notwithstanding the foregoing, (a) Company shall remain liable under the
Interest Rate Cap Agreement and each Hedge for any representations and
warranties contained in the Interest Rate Cap Agreement and to perform all of
its duties and obligations thereunder to the same extent as if this
acknowledgment had not been executed, (b) the exercise by the Lender Collateral
Agent of any of the rights hereunder shall not release Company from any of its
duties or obligations under the Interest Rate Cap Agreement or any Hedge, and
(c) none of the Lender Collateral Agent, any Lender or any other party to the
Security Agreement shall have any obligation, responsibility or liability for
any representation or warranty or otherwise under the Interest Rate Cap
Agreement or any Hedge by reason of this acknowledgment, nor shall any of them
be obligated to perform any of the obligations or duties of Company thereunder
or to take any action to collect or enforce any claim for payment thereunder.
Company shall not, without the prior written consent of the Lender
Collateral Agent, (i) sell, assign (by operation of law or otherwise), convey,
transfer, deliver or otherwise dispose of, any of the Assigned Rights, or create
or permit to exist any lien, security interest, option or other charge or
encumbrance upon or with respect to any of the Assigned Rights, except for the
assignment acknowledged hereby; (ii) cancel or terminate the Interest Rate Cap
Agreement or any Hedge or consent to or accept any cancellation or termination
thereof; (iii) amend, supplement or otherwise modify the Interest Rate Cap
Agreement or any Hedge or give any consent, waiver or approval thereunder; (iv)
waive any default under or breach of the Interest Rate Cap Agreement or any
Hedge; or (v) take any other action in connection with the Interest Rate Cap
Agreement or any Hedge which would impair the value of the interest or rights of
Company thereunder or which would impair the interests or rights of the Lender
Collateral Agent, any Lender or any other party under the Security Agreement.
No amendment or waiver of any provision hereof, and no consent provided
hereto shall in any event be effective unless the same shall be in writing and
signed by the Lender Collateral Agent, Company and the Counterparty, and then
such waiver or consent shall be effective only in the specific instance and for
the specific purpose for which given.
This letter agreement may be executed in counterparts, each of which when
executed by the parties hereto shall be deemed an original and all of which
together shall be deemed the same instrument.
This letter agreement shall be binding upon Company and the Counterparty
and their respective successors and assigns, and shall inure, together with the
rights and remedies of the
-G-2-
Lender Collateral Agent hereunder, to the benefit of the holders of securities
issued by Company, and their respective successors, transferees and assigns.
THIS LETTER AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE
LAW OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO ITS CONFLICT OF LAW
PROVISIONS (OTHER THAN SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK GENERAL
OBLIGATIONS LAW).
Very truly yours,
[NAME OF BORROWER]
By:________________________
Name:
Title:
Acknowledged and Agreed:
[NAME OF HEDGE COUNTERPARTY]
By__________________________
Name:
Title:
Acknowledged:
DEUTSCHE BANK TRUST COMPANY
AMERICAS, not in its individual
capacity but solely as Lender
Collateral Agent
By__________________________
Name:
Title:
-G-3-
EXHIBIT H
FORM OF INTEREST RATE CAP
[to be provided by AmeriCredit]
EXHIBIT I
FORM OF AGREED UPON PROCEDURES LETTER
[to be provided by AmeriCredit]
EXHIBIT J
FORM OF REVOLVER SERVICER'S CERTIFICATE
[draft distributed by DBNY]
EXHIBIT K
FORM OF REVOLVER BORROWING BASE CERTIFICATE
[draft distributed by DBNY]
EXHIBIT L-1
FORM OF GUARANTY
[draft distributed by Dewey]
EXHIBIT L-2
FORM OF LIMITED GUARANTY
[draft distributed by Dewey]
EXHIBIT M
FORM OF COLLATERAL SUMMARY REPORT
Exhibit ___
Revolving Credit Facility
Collateral Summary Report
July 31, 2002
- ----------------------------------------------------------------------------------------------------------------------------------
Original Current Spread
Designated Term Collateral Collateral Current Bond Account
Securitizations Balance Balance Balance Current O/C Balance WAC WARM Seasoning
- ----------------------------------------------------------------------------------------------------------------------------------
98-D 625,000,000 75,896,843 68,307,159 7,589,684 9,374,982 17.99% 16 Months 45 Months
99-A 700,000,000 107,314,694 96,583,225 10,731,469 10,500,000 18.27% 19 Months 42 Months
99-B 1,000,000,000 205,107,281 184,596,553 20,510,728 15,000,000 18.26% 24 Months 39 Months
99-C 1,000,000,000 286,497,977 257,848,179 28,649,798 15,000,000 18.24% 27 Months 34 Months
99-D 900,000,000 273,945,811 246,551,230 27,394,581 13,500,000 18.19% 29 Months 33 Months
00-A 1,300,000,000 462,116,760 415,905,084 46,211,676 19,499,985 18.86% 32 Months 30 Months
00-B 1,200,000,000 514,520,369 465,640,934 48,879,435 17,999,999 19.14% 35 Months 26 Months
00-C 1,100,000,000 535,772,934 484,874,505 50,898,429 16,499,965 19.23% 38 Months 23 Months
00-D 600,000,000 337,130,113 306,788,403 30,341,710 10,113,903 18.26% 43 Months 20 Months
01-A 1,400,000,000 837,996,594 762,576,901 75,419,693 25,139,898 19.16% 45 Months 18 Months
01-B 1,850,000,000 1,379,090,281 1,287,480,942 91,609,339 41,372,708 18.39% 50 Months 13 Months
01-C 1,600,000,000 1,280,985,510 1,219,425,228 61,560,282 38,429,565 17.96% 53 Months 10 Months
01-D 1,800,000,000 1,495,950,087 1,413,405,248 82,544,839 44,878,503 17.84% 54 Months 9 Months
02-A 1,600,000,000 1,462,477,277 1,418,315,730 44,161,547 43,874,318 17.57% 57 Months 5 Months
02-B 1,200,000,000 1,172,840,261 1,168,537,153 4,303,108 35,185,208 17.38% 59 Months 2 Months
- ----------------------------------------------------------------------------------------------------------------------------------
Total FSA Deals 17,875,000,001 10,427,642,792 9,796,836,474 630,806,318 356,369,034 18.17% 48 Months 14 Months
- ----------------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------------
2000-1 499,999,970 254,358,341 224,140,773 30,217,568 5,000,000 19.07% 41 Months 21 Months
2001-1 1,099,999,851 715,902,049 634,050,997 81,851,052 11,000,000 18.90% 46 Months 14 Months
2002-1 1,000,000,000 936,679,434 895,543,956 41,135,478 9,999,997 17.88% 57 Months 3 Months
- ----------------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------------
Total Sen/Sub
Deals 2,599,999,821 1,906,939,824 1,753,735,726 153,204,098 25,999,997 18.42% 51 Months 10 Months
- ----------------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------------
All AmeriCredit
Deals 20,474,999,822 12,334,582,616 11,550,572,200 784,010,416 382,369,031 18.21% 48 Months 14 Months
- ----------------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------------
Expected Expected Contribution
Designated Term Losses to Date Losses to Date Expected Expected Remaining Remaining BBB- to Senior
Securitization $ % Losses ($) Losses (%) Loss ($) Loss (%) Multiple Borrowing Base
- ----------------------------------------------------------------------------------------------------------------------------------
98-D 64,392,363 10.30% 65,625,000 10.50% 1,232,637 0.20% 1.80 19,951,661
99-A 72,727,944 10.39% 73,500,000 10.50% 772,056 0.11% 1.80 30,040,814
99-B 95,445,604 9.54% 105,000,000 10.50% 9,554,396 0.96% 1.80 35,120,065
99-C 92,120,101 9.21% 105,000,000 10.50% 12,879,899 1.29% 1.80 44,360,843
99-D 82,373,490 9.15% 94,500,000 10.50% 12,126,510 1.35% 1.80 42,866,601
00-A 118,314,643 9.10% 136,500,000 10.50% 18,185,357 1.40% 1.80 79,649,913
00-B 100,388,532 8.37% 126,000,000 10.50% 25,611,468 2.13% 1.80 74,005,918
00-C 91,852,237 8.35% 115,500,000 10.50% 23,647,763 2.15% 1.80 90,923,397
00-D 41,364,870 6.89% 63,000,000 10.50% 21,635,130 3.61% 1.80 40,615,137
01-A 87,207,518 6.23% 147,000,000 10.50% 59,792,482 4.27% 1.80 110,787,951
01-B 62,599,296 3.38% 194,250,000 10.50% 131,650,704 7.12% 1.80 84,575,184
01-C 40,807,092 2.55% 168,000,000 10.50% 127,192,908 7.95% 1.80 50,527,479
01-D 30,871,248 1.72% 189,000,000 10.50% 158,128,752 8.78% 1.80 52,870,815
02-A 8,154,146 0.51% 168,000,000 10.50% 159,845,854 9.99% 1.80 15,336,866
02-B 83,125 0.01% 126,000,000 10.50% 125,916,875 10.49% 1.80 -4,593,813
- ----------------------------------------------------------------------------------------------------------------------------------
Total FSA Deals 988,702,209 3.91% 1,876,875,000 10.50% 888,172,791 6.59% 1.80 767,038,814
- ----------------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------------
2000-1 36,488,315 7.30% 52,499,997 10.50% 16,011,682 3.20% 1.80 38,126,509
2001-1 56,371,704 5.12% 115,499,984 10.50% 59,128,280 5.38% 1.80 90,985,750
2002-1 2,507,952 0.25% 105,000,000 10.50% 102,492,048 10.25% 1.80 8,663,058
- ----------------------------------------------------------------------------------------------------------------------------------
Total Sen/Sub
Deals 95,367,971 3.67% 272,999,981 10.50% 177,632,010 6.83% 1.80 137,775,317
- ----------------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------------
All AmeriCredit
Deals 1,084,070,180 5.29% 2,149,874,981 10.50% 1,065,804,802 5.21% 1.80 904,814,131
- ----------------------------------------------------------------------------------------------------------------------------------
EXHIBIT N
FORM OF MONTHLY COMPLIANCE CERTIFICATE
Exhibit ____
Revolving Credit Facility
Monthly Compliance Certificate
This Monthly Compliance Certificate has been prepared in accordance with Section
5.01 (a) (vi) of the Credit Agreement among AFS Funding Corp. and AFS SenSub
Corp., as the Borrowers, AmeriCredit Corp. and AmeriCredit Financial Services
Inc., each as a Contingent Obligor, the Financial Institutions from time to time
party hereto as Lenders, Deutsche Bank AG, as an Agent, and the other Agents
from time to time party hereto, Deutsche Bank Trust Company Americas, as Lender
Collateral Agent, and Deutsche Bank Trust Company Americas, as the
Administrative Agent dated as of August 15, 2002. Defined terms have the
meanings assigned to them in the Credit Agreement or in other Transaction
Documents.
This Monthly Compliance Certificate has also been prepared pursuant to Section
4.9 of the Sale and Servicing Agreements among the outstanding AmeriCredit
Automobile Receivables Trusts, as Issuers, AmeriCredit Financial Services, Inc.
as Servicer, AFS Funding Corp., as Seller and the various Backup Servicers and
Trust Collateral Agents.
The undersigned hereby certifies that this Monthly Compliance Certificate is
true and correct to his knowledge. In addition, no Trigger Event has occurred on
the related Determination Date and, to the knowledge of the undersigned, no
Insurance Agreement Event of Default has occurred for AmeriCredit's outstanding
securitizations.
Monthly Period Beginning: 01-Jul-2002
Monthly Period Ending: 31-Jul-2002
I. Revolving Credit Facility Performance Tests
A. Events of Default (Section 6.01 of the Credit Agreement)
According to Section 6.01 of the Credit Agreement, has there been
an occurrence of an Event of Default? No
--------
II. AmeriCredit's Securitization Performance Tests
A. Delinquency Ratio
See Exhibit I.
B. Cumulative Default Rate
See Exhibit II.
C. Cumulative Net Loss Rate
See Exhibit III.
D. Extension Rate
See Exhibit IV.
By: /s/ Connie Coffey
-----------------------------------
Name: Connie Coffey
-----------------------------------
Title: Senior Vice President
-----------------------------------
Date: August 9, 2002
-----------------------------------
APPENDIX A
CERTAIN DEFINITIONS
Capitalized terms used in this Agreement shall have the following
meanings:
"ACC": The meaning specified in the Preamble.
"ACFS": The meaning specified in the Preamble.
"Accountants' Letter": The meaning specified in Section 5.01(a).
"Adjusted Available Commitment Amount": On any date with respect to a
Committed Lender and its related Conduit Lender, such Committed Lender's
Commitment Amount with respect to such Conduit Lender, minus the aggregate
outstanding principal amount of such Committed Lender's Advances with respect to
such Conduit Lender, minus the aggregate outstanding principal amount of such
Committed Lender's Support Advances to such Conduit Lender.
"Adjusted EBITDA": With respect to any Person, for any period, the
earnings of such Person and its subsidiaries, determined on a consolidated basis
in accordance with GAAP, for such period before interest, taxes, depreciation
and amortization, plus cash distributions from securitization trusts supported
by Receivables originated by such Person or its Affiliates received by such
Person and its subsidiaries during such period minus any non-cash gains on the
sale of Receivables by such Person and its subsidiaries during such period.
"Adjusted Equity": With respect to any Person, at any time, the
Tangible Net Worth of such Person at such time, minus the Tax Adjusted
Interest-Only Receivables of such Person at such time.
"Adjusted Eurodollar Rate" shall mean, for any Interest Period, a rate
per annum (rounded upwards, if necessary, to the nearest 1/100th of 1%)
equivalent to the rate determined pursuant to the following formula:
Adjusted Eurodollar Rate = LIBOR
-------------------------------
1-LIBOR Reserve Percentage
on the first day of such Interest Period.
"Advance": An advance by a Lender to the Borrowers as part of a
Borrowing made on or prior to the Commitment Expiration Date consisting of
either all Base Rate Advances or all Eurodollar Rate Advances from each of the
Lenders, in each case pursuant to Section 2.02, and subject to Conversion or
Continuation pursuant to Section 2.07.
-1-
"Affected Party": With respect to any Conduit Lender, any Support Party
of such Conduit Lender or the related Agent.
"Affiliate": With respect to any Person, any Person directly or
indirectly controlling, controlled by, or under common control with, such former
Person. As used in this definition of "Affiliate," the term "control" means the
possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of a Person, whether through ownership
of voting securities, by contract or otherwise.
"AFS Funding": The meaning specified in the preamble to this Agreement.
"AFS Funding Trust": AFS Funding Trust, a Delaware business trust.
"AFSFT Class A Certificate": The meaning specified in the Master
Collateral and Intercreditor Agreement.
"AFSFT Class A Certificate Collateral": The meaning specified in the
Master Collateral and Intercreditor Agreement.
"AFSFT Trust Agreement" means the Second Amended and Restated Trust
Agreement, dated as of August 15, 2002, between AFS Funding and Deutsche Bank
Trust Company Delaware as successor in interest to Bankers Trust (Delaware), as
Owner Trustee, as amended, supplemented or otherwise modified from time to time.
"Agent" has the meaning specified in the preamble to this Agreement.
"Agreement": This Credit Agreement, as it may be amended, modified,
restated or supplemented from time to time.
"Alternate Base Rate": For any day, the higher of (i) the base
commercial lending rate per annum announced from time to time by DBNY in New
York in effect on such day, or (ii) the interest rate per annum quoted by DBNY
at approximately 11:00 a.m., New York City time, on such day, to dealers in the
New York Federal funds market for the overnight offering of Dollars by DBNY plus
one-half of one percent (0.50%). (The Alternate Base Rate is not intended to
represent the lowest rate charged by DBNY for extensions of credit.)
"Applicable Lending Office": With respect to each Lender, the office of
such Lender specified as its lending office for the relevant Type of Advances
opposite its name on Schedule I hereto or in the Assignment and Assumption or
Joinder Supplement pursuant to which it became a Lender, or such other office of
such Lender as such Lender may from time to time specify to the applicable
Agent, the Borrowers and the Administrative Agent.
"Asset Backed Security" means an asset backed note (with a fixed or
floating interest rate) issued by a securitization trust and supported by
Receivables originated by (and not acquired through bulk purchases from another
originator), denominated in Dollars, and serviced
-2-
by, ACFS or one of its Affiliates relating to the retail sale or refinancing of
a Financed Vehicle. An Asset Backed Security shall not include an asset backed
security supported by or secured by other asset backed securities.
"Asset Backed Security Distributions": With respect to any Asset Backed
Security owned by either Borrower, all amounts which are distributed, from time
to time, with respect to such Asset Backed Security (including pursuant to any
guaranty, including, without limitation, any guaranty delivered pursuant to
clause (p) of the definition of "Eligible Security" or credit enhancement
thereof).
"Assignee": The meaning specified in Section 8.06(b).
"Assignment": The meaning specified in Section 8.06(b).
"Assignment and Assumption": The meaning specified in Section 8.06(b).
"Authorized Officer": (i) With respect to any non-natural Person other
than the Lender Collateral Agent or the Master Collateral Agent, any Officer of
such Person who is authorized to act for such Person with respect to the
relevant matter in question and (ii) with respect to the Lender Collateral Agent
or the Master Collateral Agent, any managing director, principal, vice
president, assistant vice president, assistant secretary, assistant treasurer,
associate or any other officer of the Lender Collateral Agent or the Master
Collateral Agent, as the case may be, customarily performing functions similar
to those performed by any of the above designated officers and also, with
respect to a particular corporate trust matter, any other officer to whom such
matter is referred because of his knowledge of and familiarity with the
particular subject.
"Bankruptcy Code": Title 11 of the United States Code (11 U.S.C.
Section 101, et seq.), as amended from time to time, or any successor statute.
"Base Rate Advance": An advance which bears interest at a rate per
annum determined on the basis of the Alternate Base Rate, as provided in Section
2.05(a).
"Bond Coupon Rate": With respect to any Eligible Security and any
month, the rate determined on the date such Eligible Security is included in the
Revolver Borrowing Base.
"Borrowing": A borrowing consisting of simultaneous Advances made by
Lenders pursuant to the same Notice of Borrowing as described in Section 2.02,
subject to Conversion or Continuation pursuant to Section 2.07.
"Borrowing Base": On any day, the lesser of (a) the Revolver Borrowing
Base and (b) the Senior Borrowing Base minus the sum of the Total Interest Rate
Risk Component and the Senior Facility Non-Revolver Aggregate Amount.
"Borrowing Base Deficiency": A Revolver Borrowing Base Deficiency, a
Senior Borrowing Base Deficiency or a Senior Borrowing Base Interim Deficiency.
-3-
"Borrowings": Collectively, each Borrowing.
"Borrowing Date": The meaning specified in Section 2.02(a).
"Business Day": Any day other than (i) a Saturday or Sunday, (ii) any
other day on which banks are authorized or required to close in the States of
New York, [North Carolina,] Texas or California and (iii) if such term is used
in connection with the Adjusted Eurodollar Rate, a day on which dealings are not
carried out in the London interbank market.
"Cash Equivalents": Mean book-entry securities, negotiable instruments
or securities represented by instruments in bearer or registered from which
evidence:
(a) direct obligations of, and obligations fully guaranteed as to
timely payment by, the United States of America;
(b) demand deposits, time deposits or certificates of deposit of any
depository institution or trust company incorporated under the laws of the
United States of America or any state thereof or the District of Columbia
(or any domestic branch of a foreign bank) and subject to supervision and
examination by federal or state banking or depository institution
authorities (including depository receipts issued by any such institution
or trust company as custodian with respect to any obligation referred to in
clause (a) above or portion of such obligation for the benefit of the
holders of such depository receipts); provided, however, that at the time
of the investment or contractual commitment to invest therein (which shall
be deemed to be made again each time funds are reinvested following each
Distribution Date), the commercial paper or other short-term senior
unsecured debt obligations (other than such obligations the rating of which
is based on the credit of a Person other than such depository institution
or trust company) of such depository institution or trust company shall
have a credit rating from Standard & Poor's of A-1 and from Moody's of
Prime-1;
(c) commercial paper and demand notes investing solely in commercial
paper having, at the time of the investment or contractual commitment to
invest therein, a rating from Standard & Poor's of A-1+ and from Moody's of
Prime-1;
(d) investments in money market funds (including funds for which the
Lender Collateral Agent or the Master Collateral Agent in each of their
individual capacities or any of their respective Affiliates is investment
manager, controlling party or advisor) having a rating from Standard &
Poor's of AAA-m or AAAm-G and from Moody's of Aaa;
(e) bankers' acceptances issued by any depository institution or trust
company referred to in clause (b) above;
(f) repurchase obligations with respect to any security that is a
direct obligation of, or fully guaranteed by, the United States of America
or any agency or
-4-
instrumentality thereof the obligations of which are backed by the full
faith and credit of the United States of America, in either case entered
into with a depository institution or trust company (acting as principal)
referred to in clause (b) above;
(g) any other investment which would satisfy the Rating Agency
Condition and is consistent with the ratings of the Securities, or any
other investment that by its terms converts to cash within a finite period,
if the Rating Agency Condition is satisfied with respect thereto; and
(h) cash denominated in United States dollars.
"Change of Control" means a change resulting when any Unrelated Person
or any Unrelated Persons, acting together, that would constitute a Group
together with any Affiliates or Related Persons thereof (in each case also
constituting Unrelated Persons) shall at any time either (i) Beneficially Own
more than 30% of the aggregate voting power of all classes of Voting Stock of
ACC or (ii) succeed in having sufficient of its or their nominees elected to the
Board of Directors of ACC such that such nominees when added to any existing
director remaining on the Board of Directors of ACC after such election who is
an Affiliate or Related Person of such Person or Group, shall constitute a
majority of the Board of Directors of ACC. As used herein, (a) "Beneficially
Own" shall mean "beneficially own" as defined in Rule 13d-3 of the Exchange Act,
or any successor provision thereto; provided, however, that, for purposes of
this definition, a Person shall not be deemed to Beneficially Own securities
tendered pursuant to a tender or exchange offer made by or on behalf of such
Person or any of such Person's Affiliates until such tendered securities are
accepted for purchase or exchange; (b) "Group" shall mean a "group" for purposes
of Section 13(d) of the Exchange Act; (c) "Unrelated Person" shall mean at any
time any Person other than ACC or any of its Subsidiaries, any of the
shareholders of ACC on the Effective Date and other than any trust for any
employee benefit plan of ACC or any of its Subsidiaries; (d) "Related Person" of
any Person shall mean any other Person owning (1) 5% or more of the outstanding
common stock of such Person or (2) 5% or more of the Voting Stock of such
Person; and (e) "Voting Stock" of any Person shall mean the capital stock or
other indicia of equity rights of such Person which at the time has the power to
vote for the election of one or more members of the Board of Directors (or other
governing body) of such Person.
"Code": The Internal Revenue Code of 1986, as amended.
"Collection Period" means, with respect to the first Distribution
Date, the period beginning on the close of business on August 1, 2002 and ending
on the close of business on August 31, 2002. With respect to each subsequent
Distribution Date, "Collection Period" means the period beginning on the close
of business on the last day of the immediately preceding Collection Period and
ending on the close of business on the last day of the immediately preceding
calendar month. Any amount stated "as of the close of business of the last day
of a Collection Period" shall give effect to the following calculations as
determined as of the end of the day on such last day: (i) all applications of
collections and (ii) all distributions.
-5-
"Commitment": In respect of a Lender as to which an amount of a
"Commitment" and the identity of one or more related Conduit Lenders are set
forth beside such Lender's name on the signature pages of this Agreement or on
the signature page of the Assignment and Assumption or Joinder Supplement
pursuant to which such Lender became a Lender hereunder, such Lender's
undertaking during the Commitment Period to make Advances in respect of
Borrowings in lieu of such Conduit Lenders in accordance with Section 2.02(g),
subject to the terms and conditions hereof, in the aggregate outstanding
principal amount not exceeding the Commitment Amount of such Lender.
"Commitment Amount": As of any date with respect to a Committed
Lender, the principal amount set forth beside such Lender's name under the
heading "Commitment Amount", on the signature pages of this Agreement or on the
signature page of the Assignment and Assumption or Joinder Supplement pursuant
to which such Committed Lender became a Committed Lender hereunder, as such
Commitment Amount may be adjusted from time to time in accordance with the
provisions of Section 2.03 or 8.06.
"Commitment Expiration Date": With respect to a Committed Lender,
August 14, 2003, as such date may be extended by such Committed Lender from time
to time pursuant to Section 2.09.
"Commitment Fee": The meaning specified in the Supplemental Fee Letter
to which the Administrative Agent is a party.
"Commitment Period": The period commencing on the Effective Date and
ending on the Commitment Period Termination Date.
"Commitment Period Termination Date": the earliest of (a) the
Commitment Expiration Date, (b) the date the Commitments are terminated, or
deemed terminated, pursuant to Section 2.03, 6.02 or 6A.02 hereof and (c) the
Stated Maturity Date.
"Committed Lender": A Lender having a Commitment with respect to one
or more Conduit Lenders.
"Conduit Lender": Any Lender whose principal business consists of
issuing commercial paper, medium term notes or other securities to fund its
acquisition and maintenance of receivables, accounts, instruments, chattel
paper, general intangibles and other similar assets or interests therein and
which is designated on the signature page hereto or in the Assignment and
Assumption or Joinder Supplement by which it became a party hereto as a Conduit
Lender.
"Contingent Obligors": The meaning specified in the Preamble.
"Continue," "Continuation" and "Continued": each refers to a
continuation of Advances for additional Interest Periods pursuant to Section
2.07.
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"Convert," "Conversion" and "Converted" each refers to a conversion of
Advances of one Type into Advances of another Type pursuant to Section 2.07.
"Cumulative Net Losses": As of any date, for any Receivables Pool, the
aggregate cumulative amount of gross charge-offs of receivables in such
Receivables Pool as of the end of the preceding Collection Period net of all
Recoveries with respect to any such receivables as of the end of the preceding
Collection Period.
"Cumulative Net Loss Ratio": As of any date, for any Receivables Pool,
the ratio, expressed as a percentage, computed by dividing:
(a) the sum (without duplication) of (i) Cumulative Net Losses for
such Receivables Pool as of the end of the preceding Collection Period
and (ii) the product of (x) 0.50 and (y) the aggregate principal
balance of all receivables in such Receivables Pool which are more
than ninety (90) days past due as of the end of the preceding
Collection Period;
by
(b) the aggregate initial principal balance for the related
Receivables Pool.
"DBNY": Deutsche Bank AG, New York Branch, and its successors.
"Debt": At any date with respect to any Person, without duplication:
(i) all obligations of such Person for borrowed money; (ii) all obligations of
such Person evidenced by bonds, debentures, notes or other similar instruments;
(iii) all obligations of such Person to pay the deferred purchase price of
property or services, except trade accounts payable arising in the ordinary
course of business; (iv) all obligations of such Person as lessee under capital
leases; (v) all non-contingent obligations of such Person to reimburse or prepay
any bank or other Person in respect of amounts paid under a letter of credit,
banker's acceptance or similar instrument; (vi) all Debt of others secured by a
Lien on any asset of such Person, whether or not such Debt is assumed by such
Person; and (vii) all Debt of others Guaranteed by such Person.
"Debtor Relief Laws": The Bankruptcy Code and all other applicable
liquidation, conservatorship, bankruptcy, moratorium, rearrangement,
receivership, insolvency, reorganization, suspension of payments, readjustment
of debt, marshaling of assets or similar debtor relief laws of the United
States, any state or any foreign country from time to time in effect, affecting
the rights of creditors generally.
"Default": Any Event of Default or any occurrence that is, or with
notice or the lapse of time or both would become, an Event of Default.
"Defaulted Receivable": With respect to any date, a Receivable with
respect to which (i) all or any portion in excess of 5% of a Scheduled
Receivable Payment is more than 90 days past due, (ii) the related servicer has
repossessed the related Financed Vehicle (and any
-7-
applicable redemption period has expired), (iii) the Obligor has been identified
in the records of the related servicer as being the subject of a current
bankruptcy proceeding or (iv) such Receivable is in default and the related
servicer has charged-off such Receivable in accordance with its standard
policies or otherwise has determined in good faith that payments thereunder are
not likely to be resumed.
"Designated Series": a Series of which an Eligible Security is a part
or a Designated Term Series (as defined in the Master Collateral and
Intercreditor Agreement).
"Determination Date" means, with respect to any Distribution Date, the
third Business Day preceding such Distribution Date.
"Dissenting Purchaser" has the meaning specified in Section 2.09(b) of
this Agreement.
"Distribution Date": The 11th day of each calendar month, or, if such
day is not a Business Day, the immediately following Business Day.
"Dollar" or "$": A dollar or other equivalent unit in such coin or
currency of the United States as at the time shall be legal tender for all
debts, public and private.
"Effective Date": The date on which the conditions specified in
Section 3.01 shall have been satisfied.
"Eligible Security" means, on any day of determination, an Asset
Backed Security (a) which is owned by any Borrower on such day and which was
initially issued not earlier than 30 days prior to its acquisition by such
Borrower, (b) which is rated "BB" or better on such day by S&P and "Ba2" or
better on such day Moody's, (c) the original certificate for which is in the
possession of the Lender Collateral Agent and is registered in the name of the
Lender Collateral Agent or accompanied by an instrument of transfer satisfactory
to the Lender Collateral Agent executed in blank, or, if uncertificated, all
action required by Section 5.01(x) has been completed to the satisfaction of the
Lender Collateral Agent, (d) which, at the date of acquisition by such Borrower,
is not in default with respect to any scheduled payment and the Series of which
it is a part is not in a "rapid", "early" or similar amortization period
triggered by a "payout", "amortization" or similar event or an "event of
default", "default" or "servicer default", (e) with respect to which the
information set forth in Notice of Borrowing most recently delivered to the
Agents and the Administrative Agent was true and correct in all material
respects, (f) which is fully paid and non-assessable and with respect to which
no provision has been waived (except to the extent permitted by this Agreement),
(g) which has not been sold, transferred, assigned or pledged by such Borrower
to any Person other than hereunder, (h) which is not subject to any Adverse
Claim or any right of rescission, setoff, counterclaim or defense and no such
claim or right has been asserted or, to the knowledge of such Borrower or ACFS,
threatened with respect thereto, (i) which is not "margin stock" within the
meaning of Regulation U of the Board of Governors of the Federal Reserve System,
(j) which is freely transferable by the registered holder thereof, (k) which has
an expected final maturity at its date of issuance of no more than, if
-8-
not rated at least BBB or its equivalent by both S&P and Moody's, 22 months or,
if rated at least BBB or its equivalent by both S&P and Moody's, 48 months, (l)
which has a maximum average life at its date of issuance of no more than, if not
rated at least BBB or its equivalent by both S&P and Moody's, 12 months or, if
rated at least BBB or its equivalent by both S&P and Moody's, 46 months, (m) the
interest rate on which was set at a Market Rate on the date of issuance, (n)
with respect to which (x) the priority of payments set forth in the related
Series Transaction Documents is the same as the priority of payments set forth
in the Series Transaction Documents related to Series 2000-1, 2001-1 and 2002-1
with respect to amounts paid at a level senior to or pari passu with the payment
of interest on notes with the same rating from S&P and Moody's as such Asset
Backed Security or (y) the payment of interest thereon is implicitly rated at
least BBB- by S&P, as confirmed by S&P to the Administrative Agent, (o) if the
payment of the principal of such Asset Backed Security is subordinated to the
payment of amounts owing to any provider of a surety bond enhancing the related
Series or other provider of credit enhancement, the related Series Transaction
Documents will (i) provide a payment priority which will allow the holder of
such Asset Backed Note to receive current interest on and after the occurrence
of any surety step-up pricing, trigger event, event of default, amortization
event or any like occurrence, (ii) will provide for a security interest in the
underlying Receivables and related collateral for the benefit of, among others,
the holder of such Asset Backed Note, (iii) will not permit such Receivables and
related collateral to provide security for any other Series or any other
obligation, (iv) upon any liquidation of such Receivables and related
collateral, will provide that all securityholders receive full payment of
principal and interest unless the consent is received from each securityholder
which will not receive such full payment and (v) which either (1) are acceptable
in all other respects to the Supermajority Lenders, in their sole discretion, or
(2) contain the elements set forth in clauses (i) through (iv) and are otherwise
substantially similar to Series Transaction Documents previously approved
pursuant to clause (1), (p) with respect to which (1) ACC shall have issued a
guaranty substantially in the form of Exhibit L-1 attached hereto which
guarantees certain payments with respect to such Asset Backed Security and (2)
ACC and ACFS shall have issued a guaranty substantially in the form of Exhibit
L-2 attached hereto which guarantees the timely payment of monthly interest on
such Asset Backed Security and guarantees the payment of principal of such Asset
Backed Security according to a schedule sufficient to cause the outstanding
amount of such Asset Backed Security at any time to be less than or equal to the
product of the Maximum Advance Percentage at such time with respect to such
Asset Backed Security and the original face amount of such Asset Backed
Security, provided that the provisions of this clause (p) shall not apply to any
Asset Backed Security which is rated "BBB" or better by S&P and "Baa2" or better
by Moody's, and (q) with respect to which no underwriting or placement fee or
commission shall have been paid or be payable with respect to such Asset Backed
Security to any affiliate of any Lender.
"ERISA": The U.S. Employee Retirement Income Security Act of 1974, as
amended from time to time, and the regulations promulgated and rulings issued
thereunder.
"ERISA Affiliate": Any Person who for purposes of Title IV of ERISA is
a member of any Borrower's controlled group, or under common control with any
Borrower,
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within the meaning of Section 414 of the IRC, and the regulations promulgated
and rulings issued thereunder.
"Eurodollar Rate Advance": An Advance which bears interest at a rate
per annum determined on the basis of the Adjusted Eurodollar Rate, as provided
in Section 2.05(a).
"Event of Early Termination": The meaning specified in Section 6A.01.
"Event of Default": The meaning specified in Section 6.01.
"Excluded Taxes": The meaning specified in Section 2.11(a).
"Facility Maturity Date": The earliest of (a) the Stated Maturity
Date, (b) the date of the acceleration of the Advances pursuant to Section
6.02(a), and (c) the occurrence of an Insolvency Event with respect to any
Borrower.
"Federal Funds Rate": For any day, a fluctuating interest rate per
annum equal to the weighted average of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged by Federal
funds brokers, as published for such day (or, if such day is not a Business Day,
for the next preceding Business Day) by the Federal Reserve Bank of New York,
or, if such rate is not so published for any day which is a Business Day, the
average of the quotations for such day for such transactions received by DBNY
from three Federal funds brokers of recognized standing selected by it.
"Fees": The Commitment Fees and the Usage Fees.
"Financed Vehicle": Any automobile, light duty truck, van, minivan or
sport utility vehicle, together with all accessories, additions and parts
constituting a part thereof and all accessions thereto.
"FSA": Financial Security Assurance Inc., a New York stock insurance
company.
"FSA Portfolio": At any particular time, the receivables in all Series
with respect to which FSA has issued an insurance policy.
"FSA Series": The meaning specified in the Master Collateral and
Intercreditor Agreement.
"FSA Spread Account": shall mean a "spread account" subject to the
Spread Account Agreement.
"GAAP": At any particular time with respect to the Borrowers, U.S.
generally accepted accounting principles as in effect at such time, consistently
applied.
-10-
"Governmental Authority" shall mean any nation or government, any
state or other political subdivision thereof and any entity exercising
executive, legislative, judicial, regulatory or administrative functions of or
pertaining to government.
"Grant": To grant, bargain, sell, warrant, alienate, premise, release,
convey, assign, transfer, mortgage, pledge, create and grant a security interest
in and right of setoff against, deposit, set over and confirm.
"Guarantee": By any Person, any obligation, contingent or otherwise,
of such Person directly or indirectly guaranteeing any Debt or other obligation
of any other Person and, without limiting the generality of the foregoing, any
obligation, direct or indirect, contingent or otherwise, of such Person (i) to
purchase or pay (or advance or supply funds, for the purchase or payment of)
such Debt or other obligation (whether arising by virtue of partnership
arrangements, by agreement to keep-well, to purchase assets, goods, securities
or services, to take-or-pay, or to maintain financial statement conditions or
otherwise) or (ii) entered into for the purpose of assuring in any other manner
the obligee of such Debt or other obligation of the payment thereof or to
protect such obligee against loss in respect thereof (in whole or in part);
provided, that the term "Guarantee" shall not include endorsements for
collection or deposit in the ordinary course of business. The term "Guarantee"
used as a verb has a corresponding meaning.
"Guaranteed Obligation": The meaning specified in Section 2A.01.
"Independent": When used with respect to any specified Person other
than an accountant, such a Person who (i) is in fact independent, (ii) does not
have any direct financial interest or any material indirect financial interest
in any Borrower or in any Affiliate of the Borrowers, and (iii) is not connected
with any Borrower or any Affiliate of the Borrowers as an officer, employee,
promoter, underwriter, trustee, partner, director or Person performing similar
functions. "Independent" when used with respect to any accountant means an
accountant, who may be the accountant who audits the books of the Borrowers, who
is independent with respect to the Borrowers within the meaning of the Code of
Professional Ethics of the American Institute of Certified Public Accountants.
Whenever it is herein provided that any Independent Person's opinion or
certificate shall be furnished to the Administrative Agent or the Lenders, such
opinion or certificate shall state that the signer has read this definition and
that the signer is Independent within the meaning hereof.
"Insolvency Event": With respect to a Person, such Person shall fail
generally to, or admit in writing its inability to, pay its debts as they become
due; or a proceeding shall have been instituted in a court having jurisdiction
in the premises seeking a decree or order for relief in respect of such Person
in an involuntary case under any Debtor Relief Law, or for the appointment of a
receiver, liquidator, assignee, trustee, custodian, sequestrator, conservator or
other similar official of such Person or for any substantial part of its
property, or for the winding-up or liquidation of its affairs and, if instituted
against such Person, any such proceeding shall continue undismissed or unstayed
and in effect for a period of 60 consecutive days or any
-11-
of the actions sought in such proceeding shall occur; or the commencement by
such Person of a voluntary case under any Debtor Relief Law, or such Person's
consent to the entry of any order for relief in an involuntary case under any
Debtor Relief Law, or consent to the appointment of or taking possession by a
receiver, liquidator, assignee, trustee, custodian, sequestrator, conservator or
other similar official of such Person or for any substantial part of its
property, or any general assignment for the benefit of creditors; or such Person
shall have taken any corporate, partnership or similar action in furtherance of
any of the foregoing actions.
"Interest Expense": With respect to any Person, for any period, the
amount of interest expense, both expensed and capitalized, of such Person and
its subsidiaries, determined on a consolidated basis in accordance with GAAP,
for such period.
"Interest Income": With respect to any Eligible Security and any
month, the sum of (a) Monthly Bond Income for such Eligible Security and such
month and (b) Monthly Cap Income for such Eligible Security and such month.
"Interest Payment Date": (i) With respect to any Advance, each
Distribution Date, commencing the first of such days to occur after such Advance
is made, and (ii) as to all Advances, the Facility Maturity Date.
"Interest Period": (i) For each Base Rate Advance, initially the
period commencing on the date on which such Advance is made, Continued or
Converted from an Advance of a different Type, and ending on the day preceding
the next following Interest Payment Date, and thereafter the period commencing
on each Interest Payment Date and ending on the day preceding the next following
Interest Payment Date or, if earlier, the date on which such Advance is repaid
or Converted into another Type of Advance, and, (ii) for each Eurodollar Rate
Advance, initially the period commencing on the date on which such Advance is
made, Continued or Converted from an Advance of a different Type, and ending on
the day preceding the Interest Payment Date occurring one, two, three or six
months thereafter as selected by the Borrowers in its Borrowing Notice or Notice
of Conversion/Continuation, as the case may be, and thereafter the period
commencing on each Interest Payment Date and ending on the day preceding the
Interest Payment Date occurring one, two, three or six months thereafter as
selected by the Borrowers in its Notice of Conversion/Continuation; provided,
however, that (A) whenever the last day of any Interest Period would otherwise
occur on a day other than a Business Day, the last day of such Interest Period
shall be extended to occur on the next succeeding Business Day, unless, in the
case of a Eurodollar Advance, such next Business Day would fall in the next
calendar month, in which case such Interest Period shall end on the next
preceding Business Day, (B) in the case of any Interest Period for any Advance
which commences before the Facility Maturity Date and would otherwise end on a
date occurring after the Facility Maturity Date, such Interest Period shall end
on the Facility Maturity Date, (C) any Interest Period pertaining to a
Eurodollar Advance that commences on the last day of a calendar month (or a day
for which there is no numerically corresponding day in the last calendar month
of such Interest Period) shall end on the last Business Day of such last
calendar month of such
-12-
Interest Period, and (D) the duration of any Interest Period commencing on or
after the Facility Maturity Date shall be selected by the Administrative Agent.
"Interest Rate Cap": The meaning specified in Section 5.01(n).
"Interest Rate Expense": With respect to any Borrowing and any month,
the product of (a) the Stress Case Principal Amount of the Eligible Security
financed by such Borrowing during such month, (b) the sum of (i) the Stress Case
LIBOR for such month and (ii) 2.25% and (iii) the Usage Fee Rate as of the date
of determination and (c) 1/12.
"Interest Rate Hedge Assignment Acknowledgment": An acknowledgment in
substantially the form of Exhibit G hereto executed by a counterparty to an
interest rate cap agreement in favor of the Lender Collateral Agent.
"Interest Rate Risk Component": With respect to a Borrowing, the sum,
calculated on or prior to the date of such Borrowing, for each month until the
Stress Case Principal Amount of the Eligible Security financed by such Borrowing
equals zero, of the positive difference, if any, between (a) the Interest Rate
Expense of such Borrowing for such month and (b) the Interest Income for such
Eligible Security for such month.
"Interest Reserve Deposit Amount": The meaning specified in Section
5.01(x).
"Interest Reserve Requirement": The meaning specified in Section
5.01(x).
"Investment Company Act": The United States Investment Company Act of
1940, as amended.
"IRS": The U.S. Internal Revenue Service and any successor agency.
"Joinder Supplement": An agreement among one or more Lenders, the
Borrowers, an Agent and the Administrative Agent in the form of Exhibit F hereto
(appropriately completed).
"Lender" means each Person which is designated as a Lender (whether a
Conduit Lender or Committed Lender) on the signature pages hereto or in the
Assignment and Assumption or Joinder Supplement pursuant to which it became a
party to this Agreement.
"Lender Collateral Agent": The meaning specified in the Preamble.
"Lender Group" shall mean each group of Lenders consisting of (i) a
Conduit Lender, and (ii) the Committed Lenders with respect to such Conduit
Lender.
"Lending Percentage": On any date the following:
(i) with respect to a Conduit Lender, such Conduit Lender's Maximum
Conduit Amount as a percentage of the Total Commitment Amount; and
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(ii) with respect to a Committed Lender, such Committed Lender's Commitment
Amount as a percentage of the Total Commitment Amount.
"Lending Termination Date" shall mean, for each Lender, the earliest
to occur of (i) the Commitment Expiration Date for such Lender or, with respect
to a Lender which is a Conduit Lender, the first date on which Commitment
Expiration Dates for all its Committed Lenders have occurred, (ii) the date of
any termination of the Commitments, in whole, by the Borrowers pursuant to
Section 2.03 and (iii) the effective date on which the Commitments are
terminated or deemed terminated pursuant to Section 6.02 or 6A.02.
"LIBOR" shall mean, with respect to any Interest Period, the rate per
annum shown on Telerate Page 3750 as the composite offered rate for London
interbank deposits for a period equal to such Interest Period, as shown under
the heading "USD" as of 11:00 a.m., London time, two Business Days prior to the
first day of such Interest Period; provided that in the event no such rate is
shown, LIBOR shall be the rate per annum based on the rates at which Dollar
deposits for a period equal to such Interest Period are displayed on page
"LIBOR" of the Reuters Monitor Money Rates Service or such other page as may
replace the LIBOR page on that service for the purpose of displaying London
interbank offered rates of major banks as of 11:00 a.m., London time, two
Business Days prior to the first day of such Interest Period (it being
understood that if at least two such rates appear on such page, the rate will be
the arithmetic mean of such displayed rates); provided further that in the event
fewer than two such rates are displayed, or if no such rate is relevant, LIBOR
shall be a rate per annum at which deposits in Dollars are offered by the
principal office of Deutsche Bank AG in London, England to prime banks in the
London interbank market at 11:00 A.M. (London time) two Business Days before the
first day of such Interest Period for delivery on such first day and for a
period equal to such Interest Period.
"LIBOR Reserve Percentage" shall mean, with respect to any Interest
Period, a percentage (expressed as a decimal) equal to the weighted average of
the percentages in effect during such Interest Period, as prescribed by the
Board of Governors of the Federal Reserve System (or any successor thereto) for
determining the maximum reserve requirements applicable to "Eurocurrency
liabilities" pursuant to Regulation D or any other applicable regulation of the
Federal Reserve Board (or any successor thereto) which prescribes reserve
requirements applicable to "Eurocurrency liabilities" as currently defined in
Regulation D.
"Lien": With respect to any asset, any mortgage, pledge,
hypothecation, assignment, deposit arrangement, encumbrance, lien (statutory or
other), preference, priority, security agreement or preferential arrangement of
any kind or nature whatsoever (including any conditional sale or other title
retention agreement relating to such asset).
"Limited Amortization Amount" shall mean, for each Nonextending
Lender, with respect to any Distribution Date, the sum of the product of the
following with respect to each Asset Backed Security that was an Eligible
Security on the Commitment Expiration Date of such Nonextending Lender: (a) the
difference, if any, between the Maximum Advance Percentage
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with respect to such Eligible Security as of the preceding Distribution Date and
the Maximum Advance Percentage with respect to such Eligible Security as of such
Distribution Date, (b) the original face amount of such Eligible Security and
(c) the Percentage Interest of such Nonextending Lender immediately prior to its
Commitment Expiration Date.
"Liquidity Percentage": With respect to a Committed Lender and its
related Conduit Lender, such Lender's Adjusted Available Commitment Amount with
respect to such Conduit Lender as a percentage of the aggregate Adjusted
Available Commitment Amounts of all of such Conduit Lender's related Committed
Lenders.
"Margin Stock": "Margin Stock" as defined under Regulation U issued by
the Board of Governors of the Federal Reserve System.
"Market Rate": With respect to any Asset Backed Security, an interest
rate for such Asset Backed Security consistent with the market therefor and for
securities similar to such Asset Backed Security as determined in good faith by
ACC and the lead underwriters or lead placement agents for such Asset Backed
Security; provided that, with respect to any Asset Backed Security rated BB or
lower by S&P or Ba2 or lower by Moody's, an interest rate thereon representing a
credit spread of less than 450 bps shall not be deemed to be a "Market Rate" for
purposes of the definition of "Eligible Security" herein unless at least 25% of
the entire original issue of such Asset Backed Security were sold at such lower
interest rate to Persons who are not Affiliates of ACC. Prior to including any
Asset Backed Security as an Eligible Security hereunder, the Borrowers will
furnish to the Administrative Agent and the Agents a certificate certifying that
the interest rate thereon is a Market Rate as herein defined.
"Master Collateral Agent": The meaning specified in the recitals.
"Master Collateral and Intercreditor Agreement": The Master Collateral
and Intercreditor Agreement, dated as of the date hereof, among AFS Funding
Corp., the Administrative Agent, the Lender Collateral Agent, certain other
secured parties and the Master Collateral Agent, as the same may be amended,
supplemented or otherwise modified from time to time.
"Material Adverse Effect": (i) A material adverse effect on the
financial condition, operations or business of any Borrower or any Contingent
Obligor, (ii) a material adverse effect on the ability or right of any Borrower
or any Contingent Obligor to perform its obligations under this Agreement or any
other Transaction Document, (iii) any impairment of the ability or right of the
Administrative Agent or any Lender to enforce this Agreement or any Note or of
the Administrative Agent or other relevant party to enforce any other
Transaction Document, or (iv) a material adverse effect on the Revolver
Collateral or the Shared Collateral or the perfection or priority of the Lender
Collateral Agent's or Master Collateral Agent's security interest therein.
"Maximum Advance Amount": with respect to any Eligible Security on any
date, the lesser of (i) the outstanding principal amount of such Eligible
Security on such date and (ii)
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the product of the original face amount of such Eligible Security and the
"Maximum Advance Percentage" with respect to such Eligible Security and such
date.
"Maximum Advance Percentage": with respect to any Eligible Security on
any date, (i) if such Eligible Security is rated at least BBB by S&P and Baa2 by
Moody's, the percentage set forth opposite the month in which such date occurs
in the following table ("Months" equals number of months since issuance of such
Eligible Security):
Maximum
Advance
Months Percentage
------ ----------
1 100.0%
2 100.0%
3 100.0%
4 100.0%
5 100.0%
6 100.0%
7 100.0%
8 100.0%
9 100.0%
10 100.0%
11 100.0%
12 100.0%
13 91.7%
14 83.3%
15 75.0%
16 66.7%
17 58.3%
18 50.0%
19 41.7%
20 33.3%
21 25.0%
22 16.7%
23 8.3%
24 0.0%
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and (ii) otherwise, the percentage set forth opposite the month in which such
date occurs in the schedule of Maximum Advance Percentages calculated by the
Administrative Agent with respect to such Eligible Security on or prior to the
first date such Eligible Security is included in the calculation of the Revolver
Borrowing Base, provided, that the Maximum Advance Percentage calculated by the
Administrative Agent shall be zero on and after the 24th month since issuance of
such Eligible Security, and provided, further, that if any such Eligible
Security rated at least BBB by S&P and Baa2 by Moody's is downgraded two notches
from its rating at the time of issuance, then such percentage shall be reduced
by subtracting 25%, and provided, further, that if any such Eligible Security
other than an Eligible Security rated at least BBB by S&P and Baa2 by Moody's is
downgraded to BB- by S&P or Ba3 by Moody's, then such percentage shall be
reduced by subtracting 25%, and provided, further, that if any such Eligible
Security rated at least BBB by S&P and Baa2 by Moody's is downgraded by more
than two notches from its rating at the time of issuance, then such the Maximum
Advance Percentage with respect to such Eligible Security shall be zero, and
provided, further, that if any such Eligible Security other than an Eligible
Security rated at least BBB by S&P and Baa2 by Moody's is downgraded to B or
below by S&P or B2 or below by Moody's, then such the Maximum Advance Percentage
with respect to such Eligible Security shall be zero.
"Maximum Conduit Amount": With respect to a Conduit Lender, the
principal amount set forth beside such Lender's name under the heading "Maximum
Conduit Amount" on the signature pages of this Agreement or on the signature
page of the Assignment and Assumption or Joinder Supplement pursuant to which
such Conduit Lender became a Conduit Lender hereunder in accordance with the
provisions of Section 8.06, as such Maximum Conduit Amount may be adjusted from
time to time in accordance with the provisions of Section 2.03 or 8.06.
"MCA Servicer's Certificate": The meaning specified in the Master
Collateral and Intercreditor Agreement.
"Monthly Bond Income": With respect to any Eligible Security and any
month, the product of (a) the Bond Coupon Rate with respect to such Eligible
Security, (b) the Stress Case Principal Amount with respect to such Eligible
Security and such month and (c) 1/12.
"Monthly Cap Income": With respect to any Eligible Security and any
month, the product of (a) the positive difference, if any, between (i) the
Stress Case LIBOR with respect to such month and the Borrowing used to fund such
Eligible Security and (ii) the strike price for the related Interest Rate Cap,
(b) the notional amount of such Interest Rate Cap for such month and (c) 1/12.
"Moody's": Moody's Investors Service, Inc., and any successor thereto.
"Nonextending Lender" shall mean, after its respective Commitment
Expiration Date, each Committed Lender which has declined to extend such
Commitment Expiration Date in accordance with Section 2.09(b).
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"Notes": The meaning specified in Section 2.01(b).
"Notice of Borrowing": The meaning specified in Section 2.02(a).
"Notice of Conversion/Continuation": The meaning specified in Section
2.07(b).
"NYUCC": The Uniform Commercial Code as in effect from time to time in
the State of New York.
"Obligations": The meaning specified in the Security Agreement.
"Officer": With respect to each of the Borrowers, the Chairman of the
Board of Directors, any Vice Chairman, any Director, the President, any Vice
President, the Secretary, an Assistant Secretary, the Treasurer or an Assistant
Treasurer of such Borrower.
"Officer's Certificate": With respect to any Person, a certificate
signed by an Authorized Officer of such Person.
"Opinion of Counsel": A written opinion of counsel who, except as
otherwise expressly provided in this Agreement, may be counsel to the Borrowers,
and who shall be acceptable to the Administrative Agent.
"Partial Expiration Event" has the meaning specified in Section
2.09(b).
"Participant": The meaning specified in Section 8.06(a).
"Participation": The meaning specified in Section 8.06(a).
"Percentage Interest": For a Lender on any day, (a) the aggregate
outstanding principal amount of Advances owed to such Lender as a percentage of
the aggregate outstanding principal amount of all Advances on such day, or (b)
if no Advances are outstanding on such day, (i) 0% in the case of a Conduit
Lender and (ii) in the case of a Committed Lender, (A) if there is a Conduit
Lender related to such Committed Lender, such Lender's Liquidity Percentage
times the Lending Percentage of such Lender's related Conduit Lender or (B)
otherwise, such Committed Lender's Lending Percentage.
"Permitted Lien": A Lien which is permitted by Section 5.02(a).
"Permitted Transferee" shall mean (i) each Lender, each Support Party,
each Agent (in its individual capacity), the Administrative Agent (in its
individual capacity) and, with respect to each transferring Lender, any
commercial paper conduit administered by the related Agent, (ii) each other
Person who has been consented to as a potential Transferee by the Borrowers
(which consent shall not be withheld (except for a commercially reasonable
purpose or reason) or delayed) and (iii) after the occurrence of an Event of
Default, any other Person,
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provided, that, in any such case, such Person is a "Qualified Purchaser" as
defined in Section 2(a)(51) of, and pursuant to Rule 3c-7 under, the Investment
Company Act of 1940, as amended.
"Person": Any individual, corporation, partnership, joint venture,
association, limited liability company, joint stock company, trust (including
any beneficiary thereof) or any other entity, unincorporated organization or
government or any agency or political subdivision thereof.
"Plan": Any employee benefit plan as defined in Section 3(3) of ERISA
in respect of which the Borrowers or any ERISA Affiliate is, or within the
immediately preceding six years was, an "employer" as defined in Section 3(5) of
ERISA, and in respect of which the Borrowers or an ERISA Affiliate could have
liability under Title IV of ERISA.
"Procedures Report": The meaning specified in Section 5.01(a).
"Rating Agency": S&P.
"Ratings Reaffirmation Dates": (i) If the Senior Facility Aggregate
Amount (as defined in the Master Collateral and Intercreditor Agreement) is less
than 66-2/3% of the Senior Borrowing Base, each date a new Senior Facility
Agreement (as defined in the Master Collateral and Intercreditor Agreement) is
created and each Distribution Dates occurring in March, June, September and
December of each year, beginning September 30, 2002 and (ii) otherwise, each of
(a) each Borrowing Date, (b) each date a new Senior Facility Agreement is
created, (c) each date on which ACFS or any Affiliate thereof exercises a
clean-up call with respect to any Designated Series and (d) the Distribution
Dates occurring in March, June, September and December of each year, beginning
September 30, 2002, provided, that the Borrowers may elect to designate any
other day a Ratings Reaffirmation Date and provided, further, that, in any case,
a Distribution Date occurring in March, June, September or December will not be
a Ratings Reaffirmation Date so long as (x) a Ratings Reaffirmation Date has
occurred in the 90 days prior to such Distribution Date and (y) on or before the
90/th/ day after such prior Ratings Reaffirmation Date, another Ratings
Reaffirmation Date occurs or is designated by the Borrowers.
"Receivable": Any right to payment in Dollars from a Person, and
includes without limitation the right to payment of any interest or finance
charges and other obligations of such Person with respect thereto.
"Receivables Pool": With respect to any date of determination, each
receivables pool supporting an asset-backed securitization sponsored by ACFS on
and after the date two years prior to such date of determination (excluding any
Receivables held as part of any warehouse arrangement).
"Recoveries": With respect to any Defaulted Receivable, monies
collected in respect thereof (other than Scheduled Receivable Payments collected
from the related Obligor which cause such Receivable to be no longer a Defaulted
Receivable), from whatever source during any Collection Period, net of the sum
of any reasonable expenses incurred by the related
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servicer in connection with the collection, repossession and disposition of the
related Financed Vehicle and any amounts required by law to be remitted to the
related Obligor; provided that Recoveries with respect to any Defaulted
Receivable shall in no event be less than zero.
"Regulatory Change": In the case of a Lender, any change occurring
after the date of such Lender's execution and delivery of this Agreement or, if
applicable of the Assignment and Assumption or Joinder Supplement by which it
became party to this Agreement; in the case of a Participant, any change
occurring after the date on which its Participation became effective, or in the
case of an Affected Party, any change occurring after the date it became such an
Affected Party, in:
(i) any (or the adoption after such date of any new) United States
Federal or state law or foreign law applicable to such Lender, Participant
or Affected Party; or
(ii) any (or the adoption after such date of any new) regulation,
interpretation, directive, guideline or request (whether or not having the
force of law) applicable to such Lender, Participant or Affected Party of
any court or other judicial authority or any Governmental Authority charged
with the interpretation or administration of any law referred to in clause
(i) or of any fiscal, monetary or other authority or central bank having
jurisdiction over such Lender, Participant or Affected Party; or
[(iii) Accounting Research Bulletin No. 51 of the Financial Accounting
Standards Board].
"Required Lenders": At any time, (i) Lenders having Percentage
Interests aggregating greater than 50%, and (ii) Committed Lenders together
having Commitments aggregating greater than 50% of the Total Commitment Amount.
"Required Spread Account Increase": With respect to any Designated
Series referred to in Section 6.01(u) or 6A.01(b), an increase (by amendment,
consent or otherwise) in the required amount to be deposited in the Spread
Account for such Designated Series to an amount in excess of 20% of the insured
principal amount of such Designated Series.
"Requisite Rating": BBB- or better from S&P.
"Residual Certificates": the certificates representing the beneficial
interests in the AmeriCredit 1998-D Trust, the AmeriCredit 1999-A Trust, the
AmeriCredit 1999-B Trust, the AmeriCredit 1999-C Trust, the AmeriCredit 1999-D
Trust, the AmeriCredit 2000-A Trust, the AmeriCredit 2000-B Trust, the
AmeriCredit 2000-C Trust, the AmeriCredit 2000-D Trust, the AmeriCredit 2001-A
Trust, the AmeriCredit 2001-B Trust, the AmeriCredit 2001-C Trust, the
AmeriCredit 2001-D Trust, the AmeriCredit 2002-A Trust, and the AmeriCredit
2002-B Trust held by AFS Funding Trust and any other certificate held by AFS
Funding Trust representing a beneficial interest in a trust established to issue
an FSA Series which is a Designated Term Series (as defined in the Master
Collateral and Intercreditor Agreement).
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"Residual Interest": The meaning assigned in the Master Collateral and
Intercreditor Agreement.
"Revolver Borrowing Base": On any day, the sum of the Maximum Advance
Amounts for each Asset Backed Security which is an Eligible Security on such
day.
"Revolver Borrowing Base Certificate": A certificate of the Borrowers
and ACFS substantially in the form of Exhibit K attached hereto.
"Revolver Borrowing Base Deficiency": The meaning specified in Section
6.01(m).
"Revolver Collateral": The "Collateral" specified in the Security
Agreement.
"Revolver Servicer's Certificate" means an Officers' Certificate of
ACFS delivered pursuant to Section 5.01(a)(vii), substantially in the form of
Exhibit J attached hereto.
"S&P" or "Standard & Poor's": Standard & Poor's Ratings Group, and any
successor thereto.
"Scheduled Receivable Payment": With respect to any Collection Period
for any Receivable, the amount set forth in such Receivable as required to be
paid by the Obligor in such Collection Period.
"Secured Obligations": The meaning specified in the Security
Agreement.
"Secured Party": The meaning specified in the Security Agreement.
"Securitization Assets": With respect to any Person, the sum of the
following items of such Person and its subsidiaries, determined on a
consolidated basis in accordance with GAAP: (1) restricted cash deposits held by
securitization trusts supported by Receivables originated by such Person or its
Affiliates, (2) investments in Receivables held by securitization trusts
supported by Receivables originated by such Person or its Affiliates, and (3)
interest-only receivables issued by securitization trusts supported by
Receivables originated by such Person or its Affiliates.
"Security Agreement": The Revolver Security and Collateral Agent
Agreement, dated as of the date hereof, among the Borrowers, ACFS, the
Administrative Agent and the Lender Collateral Agent, as the same may be
amended, supplemented or otherwise modified from time to time.
"Security Interest": Each security interest and Lien Granted pursuant
to Section 2.01 of the Security Agreement and each security interest and Lien
Granted pursuant to Section 2.01 of the Master Collateral and Intercreditor
Agreement.
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"Senior Borrowing Base": The meaning specified in the Master
Collateral and Intercreditor Agreement.
"Senior Borrowing Base Certificate": The meaning specified in the
Master Collateral and Intercreditor Agreement.
"Senior Borrowing Base Deficiency": The meaning specified in the
Master Collateral and Intercreditor Agreement.
"Senior Borrowing Base Interim Deficiency": The meaning specified in
the Master Collateral and Intercreditor Agreement.
"Senior Facility Non-Revolver Aggregate Amount": The Senior Facility
Aggregate Amount (as defined in the Master Collateral and Intercreditor
Agreement) minus the Senior Facility Notional Amount with respect to this
Agreement.
"Senior Facility Notional Amount": With respect to this Agreement, as
of any date, the greater of (i) $10,000,000 and (ii) the sum of (a) with respect
to each Borrowing which has not been repaid in full as of such date, the sum of
the aggregate initial principal amount of the Advances constituting such
Borrowing and (b) the Total Interest Rate Risk Component.
"SenSub": The meaning specified in the preamble to this Agreement.
"Series": The meaning specified in the Recitals.
"Series Transaction Documents" means, with respect to any Series, the
pooling and servicing agreement (or equivalent document by any other name), sale
and servicing agreement, indenture, insurance and indemnity agreement, if any,
notes, certificates of beneficial interest, trust agreements, transfer
agreements, contribution agreements, and, if such Series is an FSA Series, the
related supplement to the Spread Account Agreement, and if such Series is not an
FSA Series, any related credit enhancement documents.
"Shared Collateral": The meaning assigned to "Collateral" in the
Master Collateral and Intercreditor Agreement.
"Shared Collateral Distributions": With respect to any item of Shared
Collateral, the moneys which are distributed, from time to time, to the
Borrowers with respect to such item.
"Spread Account": A "spread" or similar account with respect to any
Designated Series including each FSA Spread Account.
"Spread Account Agreement": That certain Spread Account Agreement,
dated as of December 1, 1994, as amended and restated as of May 11, 1998, among
AFS Funding, FSA, Lasalle National Bank, Harris Trust and Savings Bank and Bank
One, N.A., as amended, restated, modified or supplemented from time to time.
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"Stated Maturity Date": the Distribution Date occurring in the 24/th/
month after the month in which the Commitment Period Termination Date occurs.
"Stress Case Principal Amount": With respect to an Eligible Security
and any month, the principal amount of such Eligible Security estimated to be
outstanding during such month as established by S&P at the time such Eligible
Security is added to the Revolver Borrowing Base.
"Stress Case LIBOR": With respect to a Borrowing and any month, the
rate established by S&P at the time of such Borrowing.
"Subsidiary": As to a Person, another Person, a majority of the
outstanding voting stock of which is owned, directly or indirectly, by such
Person or by one or more other Subsidiaries of such Person. For the purposes of
this definition, "voting stock" of a Person means shares, interests,
participations or other equivalents (however designated) of such Person's equity
having voting power for the election of directors, managers or other voting
members of the governing body of such Person.
"Supermajority Lenders": At any time, (i) Lenders having Percentage
Interests aggregating greater than 75%, and (ii) Committed Lenders together
having Commitments aggregating greater than 75% of the Total Commitment Amount.
"Supplemental Fee Letter" shall mean each letter agreement, designated
therein as a Supplemental Fee Letter and then in effect, between the Borrowers
and an Agent or the Administrative Agent, as such letter agreement may be
amended or otherwise modified from time to time.
"Support Advances": With respect to a Committed Lender and its related
Conduit Lender, any participation held by such Committed Lender in Advances owed
to such Conduit Lender which were purchased from such Conduit Lender pursuant to
a Support Facility and any loans or other advances made by such Committed Lender
to such Conduit Lender pursuant to a Support Facility to fund such Conduit
Lender's making or maintaining its Advances hereunder (but excluding any such
loans or advances made to fund such Conduit Lender's obligations to pay
interest, fees or other similar amounts relating to the funding of its making or
maintaining its Advances hereunder).
"Support Party": Any bank or other financial institution extending or
having a commitment to extend funds to or for the account of a Conduit Lender
(including by agreement to purchase an assignment of or participation in
Advances owed to such Conduit Lender) under a Support Facility.
"Support Facility": Any liquidity or credit support agreement with a
Conduit Lender which relates to this Agreement and the Advances made by such
Conduit Lender hereunder (including any agreement to purchase an assignment of
or participation in such Advances).
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"Tangible Net Worth": With respect to any Person, the net worth of
such Person and its subsidiaries, determined on a consolidated basis in
accordance with GAAP, after subtracting therefrom the aggregate amount of the
intangible assets of such Person and its subsidiaries, including, without
limitation, goodwill, franchises, licenses, patents, trademarks, tradenames,
copyrights and service marks.
"Tax Adjusted Interest-Only Receivables": With respect to any Person
and at any time, the value of any interest-only receivables held at such time by
such Person or any of its consolidated subsidiaries which were issued by
securitization trusts supported by Receivables originated by such Person or its
Affiliates plus any related interest rate swap asset held at such time by such
Person or any of its consolidated subsidiaries minus any related interest rate
swap liability held at such time by such Person or any of its consolidated
subsidiaries, and adjusted by such Person's applicable tax rate (as reported for
its most recently completed fiscal quarter).
"Taxes": The meaning specified in Section 2.11(a).
"Termination Date" shall mean the first date on which the Lending
Termination Date for all Lenders has occurred.
"Total Commitment Amount": On any date, the sum of the Commitment
Amounts of all Committed Lenders, which amount shall initially be $290,000,000.
"Total Interest Rate Risk Component": As of any date, the sum, with
respect to each Borrowing which has not been repaid in full as of such date, of
the Interest Rate Risk Components with respect to such Borrowings.
"Total Secured Debt": At any time, Senior Debt at the time outstanding
and the Senior Subordinated Notes then Outstanding.
"Trade Claim": Claims of trade creditors and other general unsecured
current obligations of a debtor.
"Transaction Documents": This Agreement, the Notes, the Security
Agreement, the Master Collateral and Intercreditor Agreement, the Interest Rate
Caps, the Interest Rate Hedge Assignment Acknowledgments, the AFSFT Trust
Agreement, the AFSFT Class A Certificate, the Supplemental Fee Letters, the
guarantees delivered pursuant to clause (p) of the definition of Eligible
Security, and all other notes, security agreements, instruments, documents and
other agreements (including UCC financing statements) heretofore, now or
hereafter executed and/or delivered by or on behalf of the Borrowers in
connection with any of the foregoing, in each case, as the same may be amended,
supplemented or otherwise modified.
"Transfer": The meaning specified in Section 8.06(a).
"Type": With reference to an Advance, whether such Advance constitutes
a Base Rate Advance or a Eurodollar Rate Advance.
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"Underlying Transactions": The meaning specified in the Master
Collateral and Intercreditor Agreement.
"Underlying Transactions Documents": the agreements, contracts,
documents, amendments, consents, instruments, certificates and other papers
executed in connection with each Underlying Transaction.
"Underlying Trust": The meaning specified in the Master Collateral and
Intercreditor Agreement.
"Underlying Trustees": in the singular, either of [insert] or
[insert], and in the plural, both of them, in their capacities as trustees,
trust collateral agents or collateral agents, in the Underlying Transactions and
any other trustee designated with respect to the Underlying Transactions.
"Uniform Commercial Code": The Uniform Commercial Code as in effect in
each relevant jurisdiction.
"United States" and "U.S.": The United States of America.
"Usage Fees": The meaning specified in the Supplemental Fee Letter to
which the Administrative Agent is a party.
"Usage Fee Rate": The meaning specified in the Supplemental Fee Letter
to which the Administrative Agent is a party.
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