EXHIBIT 10.9
AMERICREDIT MASTER TRUST
Class A-1 Floating Rate Asset Backed Notes
Class A-2 Floating Rate Asset Backed Notes
Class S Swingline Asset Backed Notes
Class B Floating Rate Asset Backed Notes
Class C Floating Rate Asset Backed Notes
Class D Floating Rate Asset Backed Notes
Class E Floating Rate Asset Backed Notes
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SECOND AMENDED AND RESTATED
INDENTURE
Dated as of November 5, 2003
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BANK ONE, NA
Trustee and Trust Collateral Agent
DEUTSCHE BANK TRUST COMPANY AMERICAS
Administrative Agent
SECOND AMENDED AND RESTATED INDENTURE dated as of November 5,
2003, among AMERICREDIT MASTER TRUST, a Delaware statutory trust (the "Issuer"),
BANK ONE, NA, a national banking association, as trustee (the "Trustee") and
Trust Collateral Agent (as defined below), and DEUTSCHE BANK TRUST COMPANY
AMERICAS, as administrative agent (the "Administrative Agent").
WHEREAS, the Issuer, the Trustee and DBNY, as the initial
Administrative Agent, are parties to a certain Amended and Restated Indenture
dated as of February 22, 2002 (the "Existing Indenture"); and
WHEREAS, the parties hereto desire to amend and restate the
Indenture in the manner, and on the terms and conditions, herein provided.
NOW, THEREFORE, in consideration of the mutual covenants herein
contained, and other good and valuable consideration, the receipt and adequacy
of which are hereby expressly acknowledged, each party hereto agrees to amend
and restate the Existing Indenture in its entirety as follows for the benefit of
the other parties and for the benefit of the Holders of the Issuer's Class A-1
Floating Rate Asset Backed Notes (the "Class A-1 Notes"), the Class A-2 Floating
Rate Asset Backed Notes (the "Class A-2 Notes"), the Class S Swingline Asset
Backed Notes (the "Class S Notes"), the Class B Floating Rate Asset Backed Notes
(the "Class B Notes"), the Class C Floating Rate Asset Backed Notes (the "Class
C Notes"), the Class D Floating Rate Asset Backed Notes (the "Class D Notes")
and the Class E Floating Rate Asset Backed Notes (the "Class E Notes"; and
together with the Class A-1 Notes, the Class A-2 Notes, the Class S Notes, the
Class B Notes, the Class C Notes and the Class D Notes, the "Notes").
As security for the payment and performance by the Issuer of its
obligations under this Indenture and the Notes, the Issuer has agreed to assign
the Collateral (as defined below) as collateral to the Trust Collateral Agent
for the benefit of the Trustee on behalf of the Noteholders.
GRANTING CLAUSE
The Issuer hereby Grants to the Trust Collateral Agent at the
Closing Date, for the benefit of the Noteholders, all of the Issuer's right,
title and interest in and to (a) the Receivables; (b) an assignment of the
security interests in the Financed Vehicles granted by Obligors pursuant to the
Receivables and any other interest of the Issuer in the Financed Vehicles; (c)
any proceeds with respect to the Receivables repurchased by a Dealer, pursuant
to a Dealer Agreement, as a result of a breach of representation or warranty in
the related Dealer Agreement or repurchased by a Third-Party Lender, pursuant to
an Auto Loan Purchase and Sale Agreement, as a result of a breach of
representation or warranty in the related Auto Loan Purchase and Sale Agreement;
(d) all rights under any Service Contracts on the related Financed Vehicles; (e)
any proceeds with respect to the Receivables from claims on any physical damage,
credit life or disability insurance policies covering Financed Vehicles or
Obligors; (f) the Trust Accounts and all funds on deposit from time to time in
the Trust Accounts, and in all investments and proceeds thereof and all rights
of the Issuer therein (including all income thereon); (g) the Issuer's rights
and benefits, but none of its obligations or burdens, under the Master Sale and
Contribution Agreement and each
Sale and Contribution Agreement Supplement entered in connection therewith,
including the delivery requirements, representations and warranties and the cure
and repurchase obligations of AmeriCredit under the Master Sale and Contribution
Agreement and each Sale and Contribution Agreement Supplement entered in
connection therewith; (h) all items contained in the Receivable Files and any
and all other documents that AmeriCredit keeps on file in accordance with its
customary procedures relating to the Receivables, the Obligors or the Financed
Vehicles, (i) the Issuer's rights and benefits, but none of its obligations or
burdens, under the Sale and Servicing Agreement and each Supplement entered in
connection therewith (including all rights of AFC under the Master Sale and
Contribution Agreement and each Sale and Contribution Agreement Supplement
entered into in connection therewith assigned to the Issuer pursuant to the Sale
and Servicing Agreement); (j) the Issuer's rights and benefits, but none of its
obligations or burdens, under any Interest Rate Hedge; and (k) all present and
future claims, demands, causes and choses of action in respect of any or all of
the foregoing and all payments on or under and all proceeds of every kind and
nature whatsoever in respect of any or all of the foregoing, including all
proceeds of the conversion, voluntary or involuntary, into cash or other liquid
property, all cash proceeds, accounts, accounts receivable, notes, drafts,
acceptances, chattel paper, checks, deposit accounts, insurance proceeds,
condemnation awards, rights to payment of any and every kind and other forms of
obligations and receivables, instruments and other property which at any time
constitute all or part of or are included in the proceeds of any of the
foregoing (collectively, the "Collateral").
The foregoing Grant is made in trust to the Trust Collateral
Agent, for the benefit of the Trustee on behalf of the Noteholders. The Trust
Collateral Agent hereby acknowledges such Grant, accepts the trusts under this
Indenture in accordance with the provisions of this Indenture and agrees to
perform its duties required in this Indenture to the end that the interests of
such parties, recognizing the priorities of their respective interests may be
adequately and effectively protected.
ARTICLE I.
Definitions and Incorporation by Reference
SECTION 1.1. Definitions. Capitalized terms used herein and
not otherwise defined herein shall have the meanings assigned to them in Annex A
hereto or the Trust Agreement.
SECTION 1.2. Rules of Construction. Unless the context
otherwise requires:
(i) a term has the meaning assigned to it;
(ii) an accounting term not otherwise defined has the meaning
assigned to it in accordance with generally accepted accounting
principles as in effect from time to time;
(iii) "or" is not exclusive;
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(iv) "including" means including without limitation; and
(v) words in the singular include the plural and words in
the plural include the singular.
ARTICLE II.
The Notes
SECTION 2.1. Form. The Class A-1 Notes, the Class A-2 Notes,
the Class S Notes, the Class B Notes, the Class C Notes, the Class D Notes and
the Class E Notes in each case together with the Trustee's certificate of
authentication, shall be in substantially the form set forth in Exhibits A-1,
A-2, A-3, A-4, A-5, A-6 and A-7, respectively, with such appropriate insertions,
omissions, substitutions and other variations as are required or permitted by
this Indenture and may have such letters, numbers or other marks of
identification and such legends or endorsements placed thereon as may,
consistently herewith, be determined by the officers executing such Notes, as
evidenced by their execution of the Notes. Any portion of the text of any Note
may be set forth on the reverse thereof, with an appropriate reference thereto
on the face of the Note.
The Definitive Notes shall be typewritten, printed, lithographed
or engraved or produced by any combination of these methods (with or without
steel engraved borders), all as determined by the officers executing such Notes,
as evidenced by their execution of such Notes.
Each Note shall be dated the date of its authentication. The
terms of the Notes set forth in Exhibits A-1, A-2, A-3, A-4, A-5, A-6 and A-7
are part of the terms of this Indenture.
The Class A-1 Notes, the Class A-2 Notes, the Class S Notes, the
Class B Notes, the Class C Notes, the Class D Notes and the Class E Notes are
revolving notes. Additional borrowings may be made under the Notes pursuant to
Section 12.6 and the principal of the Notes may be repaid and reborrowed without
penalty pursuant to the terms hereof.
SECTION 2.2. Execution, Authentication and Delivery. The
Notes shall be executed on behalf of the Issuer by any of its Authorized
Officers. The signature of any such Authorized Officer on the Notes may be
manual or facsimile.
Notes bearing the manual or facsimile signature of individuals
who were at any time Authorized Officers of the Issuer shall bind the Issuer,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Notes or did not hold
such offices at the date of such Notes.
The Trustee shall, upon receipt of Issuer Order, authenticate
and deliver Class A-1 Notes, Class A-2 Notes, Class S Notes, Class B Notes,
Class C Notes, Class D Notes and Class E Notes, each for original issue in an
aggregate principal amount set forth in such Issuer Order. The Class A-1 Notes,
Class A-2 Notes, Class B Notes, Class C Notes, Class S, Class D and Class
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E Notes outstanding at any time may not exceed such amounts except as provided
in Section 12.7.
The Notes shall be issuable as registered Notes in the minimum
denomination of $1,000,000 and in integral multiples thereof (except for one
Note of each class which may be issued in a denomination other than an integral
multiple of $1,000,000).
No Note shall be entitled to any benefit under this Indenture or
be valid or obligatory for any purpose, unless there appears on such Note a
certificate of authentication substantially in the form provided for herein
executed by the Trustee by the manual signature of one of its authorized
signatories, and such certificate upon any Note shall be conclusive evidence,
and the only evidence, that such Note has been duly authenticated and delivered
hereunder.
SECTION 2.3. Temporary Notes. Pending the preparation of
Definitive Notes, the Issuer may execute, and upon receipt of an Issuer Order
the Trustee shall authenticate and deliver, temporary Notes which are printed,
lithographed, typewritten, mimeographed or otherwise produced, of the tenor of
the Definitive Notes in lieu of which they are issued and with such variations
not inconsistent with the terms of this Indenture as the officers executing such
Notes may determine, as evidenced by their execution of such Notes.
If temporary Notes are issued, the Issuer will cause Definitive
Notes to be prepared without unreasonable delay. After the preparation of
Definitive Notes, the temporary Notes shall be exchangeable for Definitive Notes
upon surrender of the temporary Notes at the office or agency of the Issuer to
be maintained as provided in Section 3.2, without charge to the Noteholder. Upon
surrender for cancellation of any one or more temporary Notes, the Issuer shall
execute and the Trustee shall authenticate and deliver in exchange therefor a
like principal amount of Definitive Notes of authorized denominations. Until so
exchanged, the temporary Notes shall in all respects be entitled to the same
benefits under this Indenture as Definitive Notes.
SECTION 2.4. Registration; Registration of Transfer and
Exchange. The Issuer shall cause to be kept a register (the "Note Register") in
which, subject to such reasonable regulations as it may prescribe, the Issuer
shall provide for the registration of Notes and the registration of transfers of
Notes. The Trustee shall be "Note Registrar" for the purpose of registering
Notes and transfers of Notes as herein provided. Upon any resignation of any
Note Registrar, the Issuer shall promptly appoint a successor or, if it elects
not to make such an appointment, assume the duties of Note Registrar.
If a Person other than the Trustee is appointed by the Issuer as
Note Registrar, the Issuer will give the Trustee prompt written notice of the
appointment of such Note Registrar and of the location, and any change in the
location, of the Note Register, and the Trustee shall have the right to inspect
the Note Register at all reasonable times and to obtain copies thereof, and the
Trustee shall have the right to conclusively rely upon a certificate executed on
behalf of the Note Registrar by an Executive Officer thereof as to the names and
addresses of the Noteholders of the Notes and the principal amounts and number
of such Notes.
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Subject to Sections 2.10 and 2.12 hereof, upon surrender for
registration of transfer of any Note at the office or agency of the Issuer to be
maintained as provided in Section 3.2, if the requirements of Section 8-401(1)
of the UCC are met the Issuer shall execute and upon its request the Trustee
shall authenticate and the Noteholder shall obtain from the Trustee, in the name
of the designated transferee or transferees, one or more new Notes, in any
authorized denominations, of the same class and a like aggregate principal
amount.
At the option of the Noteholder, Notes may be exchanged for
other Notes in any authorized denominations, of the same class and a like
aggregate principal amount, upon surrender of the Notes to be exchanged at such
office or agency. Whenever any Notes are so surrendered for exchange, subject to
Sections 2.10 and 2.12 hereof, if the requirements of Section 8-401(1) of the
UCC are met the Issuer shall execute and upon its request the Trustee shall
authenticate and the Noteholder shall obtain from the Trustee, the Notes which
the Noteholder making the exchange is entitled to receive.
All Notes issued upon any registration of transfer or exchange
of Notes shall be the valid obligations of the Issuer, evidencing the same debt,
and entitled to the same benefits under this Indenture, as the Notes surrendered
upon such registration of transfer or exchange.
Every Note presented or surrendered for registration of transfer
or exchange shall be (i) duly endorsed by, or be accompanied by a written
instrument of transfer in the form attached to Exhibits A-1, A-2, A-3, A-4, A-5,
A-6 and A-7 duly executed by, the Holder thereof or such Holder's attorney duly
authorized in writing, and (ii) accompanied by such other documents as the
Trustee may require.
Notwithstanding the foregoing, in the case of any sale or other
transfer of a Definitive Note, the transferor of such Definitive Note shall be
required to represent and warrant in writing that the prospective transferee
either (a) is not (i) an employee benefit plan (as defined in section 3(3) of
the Employee Retirement Income Security Act of 1974, as amended ("ERISA")),
which is subject to the provisions of Title I of ERISA, (ii) a plan (as defined
in section 4975(e)(1) of the Code), which is subject to Section 4975 of the
Code, or (iii) an entity whose underlying assets are deemed to be assets of a
plan described in (i) or (ii) above by reason of such plan's investment in the
entity (any such entity described in clauses (i) through (iii), a "Benefit Plan
Entity") or (b) is a Benefit Plan Entity and the acquisition and holding of the
Definitive Note by such prospective transferee is covered by a Department of
Labor Prohibited Transaction Class Exemption. Each transferee of a Book Entry
Note that is a Benefit Plan Entity shall be deemed to represent that its
acquisition and holding of the Book Entry Note is covered by a Department of
Labor Prohibited Transaction Class Exemption.
No service charge shall be made to a Noteholder for any
registration of transfer or exchange of Notes, but the Note Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any registration of transfer or
exchange of Notes, other than exchanges pursuant to Section 2.3 or 9.6 not
involving any transfer.
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The preceding provisions of this section notwithstanding, the
Issuer shall not be required to make and the Note Registrar shall not register
transfers or exchanges of Notes selected for redemption or of any Note for a
period of 15 days preceding the due date for any payment with respect to the
Note.
No Note shall be sold or transferred if, at the time of such
sale or transfer, such sale or transfer would result in the beneficial ownership
of the Notes exceeding 99 persons (within the meaning of the Investment Company
Act of 1940, as amended).
SECTION 2.5. Mutilated, Destroyed, Lost or Stolen Notes. If
(i) any mutilated Note is surrendered to the Trustee, or the Trustee receives
evidence to its satisfaction of the destruction, loss or theft of any Note, and
(ii) there is delivered to the Trustee such security or indemnity as may be
required by it to hold the Issuer and the Trustee harmless, then, in the absence
of notice to the Issuer, the Note Registrar or the Trustee that such Note has
been acquired by a bona fide purchaser, and provided that the requirements of
Section 8-405 of the UCC are met, the Issuer shall execute and upon its request
the Trustee shall authenticate and deliver, in exchange for or in lieu of any
such mutilated, destroyed, lost or stolen Note, a replacement Note; provided,
however, that if any such destroyed, lost or stolen Note, but not a mutilated
Note, shall have become or within seven days shall be due and payable, or shall
have been called for redemption, instead of issuing a replacement Note, the
Issuer may direct the Trustee, in writing, to pay such destroyed, lost or stolen
Note when so due or payable or upon the Redemption Date without surrender
thereof. If, after the delivery of such replacement Note or payment of a
destroyed, lost or stolen Note pursuant to the proviso to the preceding
sentence, a bona fide purchaser of the original Note in lieu of which such
replacement Note was issued presents for payment such original Note, the Issuer
and the Trustee shall be entitled to recover such replacement Note (or such
payment) from the Person to whom it was delivered or any Person taking such
replacement Note from such Person to whom such replacement Note was delivered or
any assignee of such Person, except a bona fide purchaser, and shall be entitled
to recover upon the security or indemnity provided therefor to the extent of any
loss, damage, cost or expense incurred by the Issuer or the Trustee in
connection therewith.
Upon the issuance of any replacement Note under this Section,
the Issuer may require the payment by the Holder of such Note of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
relation thereto and any other reasonable expenses (including the fees and
expenses of the Trustee) connected therewith.
Every replacement Note issued pursuant to this Section in
replacement of any mutilated, destroyed, lost or stolen Note shall constitute an
original additional contractual obligation of the Issuer, whether or not the
mutilated, destroyed, lost or stolen Note shall be at any time enforceable by
anyone, and shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Notes duly issued hereunder.
The provisions of this Section are exclusive and shall preclude
(to the extent lawful) all other rights and remedies with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Notes.
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SECTION 2.6. Persons Deemed Owner. Prior to due presentment
for registration of transfer of any Note, the Issuer, the Trustee and any agent
of the Issuer or the Trustee, may treat the Person in whose name any Note is
registered (as of the Record Date) as the owner of such Note for the purpose of
receiving payments of principal of and interest, if any on such Note and for all
other purposes whatsoever, whether or not such Note be overdue, and none of the
Issuer, the Trustee nor any agent of the Issuer or the Trustee shall be affected
by notice to the contrary.
SECTION 2.7. Payment of Principal and Interest.
(a) The Notes shall accrue interest as provided in the forms
of the Class A-1 Note, the Class A-2 Note, the Class S Note, the Class B Note,
the Class C Note, the Class D Note, the Class E Note set forth in Exhibits A-1,
A-2, A-3, A-4, A-5, A-6 and A-7, respectively, and such interest shall be due
and payable on each Distribution Date (or Interim Distribution Date with respect
to the amount of principal being repaid on such date). Any installment of
interest or principal, if any, payable on any Note which is punctually paid or
duly provided for by the Issuer on the applicable Distribution Date (or Interim
Distribution Date) shall be paid to the Person in whose name such Note (or one
or more Predecessor Notes) is registered on the Record Date, by check mailed
first-class, postage prepaid, to such Person's address as it appears on the Note
Register on such Record Date, except that, unless Definitive Notes have been
issued pursuant to Section 2.12, with respect to Class D Notes or Class E Notes
registered on the Record Date in the name of the nominee of the Clearing Agency
(initially, such nominee to be Cede & Co.), payment will be made by wire
transfer in immediately available funds to the account designated by such
nominee and except for the final installment of principal payable with respect
to such Note on a Distribution Date or Interim Distribution Date (and except for
the Redemption Price for any Note called for redemption pursuant to Section
10.1(a)) which shall be payable as provided below. The funds represented by any
such checks returned undelivered shall be held in accordance with Section 3.3.
(b) The principal of each Note shall be payable on each
Distribution Date or Interim Distribution Date as provided in the Sale and
Servicing Agreement and in the forms of the Class A-1 Note, the Class A-2 Note,
the Class S Note, the Class B Note, the Class C Note, the Class D Note and the
Class E Note set forth in Exhibits A-1, A-2, A-3, A-4, A-5, A-6 and A-7,
respectively. Notwithstanding the foregoing, the entire unpaid principal amount
of the Notes shall be due and payable, if not previously paid, on the date on
which an Event of Default shall have occurred and be continuing, if the Trustee
or the Class A Required Noteholders, Class B Required Noteholders or the Class C
Required Noteholders have declared the Notes to be immediately due and payable
in the manner provided in Section 5.2. All principal payments on each class of
Notes shall be made pro rata to the Noteholders of such class entitled thereto.
Upon written notice from the Issuer, the Trustee shall notify the Person in
whose name a Note is registered at the close of business on the Record Date
preceding the Distribution Date or Interim Distribution Date, as the case may
be, on which the Issuer expects that the final installment of principal of and
interest on such Note will be paid. Such notice shall be mailed or transmitted
by facsimile prior to such final Distribution Date or Interim Distribution Date,
as the case may be, and shall specify that such final installment will be
payable only upon presentation and surrender of such Note and shall specify the
place where such Note may be presented and surrendered for
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payment of such installment. Notices in connection with redemptions of Notes
shall be mailed to Noteholders as provided in Section 10.2.
(c) Payment of principal and interest on the Class E Notes
is subordinated to payment on each Distribution Date and Interim Distribution
Date of the principal, interest and other amounts due and payable on the Class
A-1 Notes, the Class A-2 Notes, the Class S Notes, the Class B Notes, the Class
C Notes and the Class D Notes to the extent set forth in Section 5.5 of the Sale
and Servicing Agreement. Payment of principal and interest on the Class D Notes
is subordinated to payment on each Distribution Date and Interim Distribution
Date of the principal, interest and other amounts due and payable on the Class
A-1 Notes, the Class A-2 Notes, the Class S Notes, the Class B Notes and the
Class C Notes to the extent set forth in Section 5.5 of the Sale and Servicing
Agreement. Payment of principal and interest on the Class C Notes is
subordinated to payment on each Distribution Date and Interim Distribution Date
of the principal, interest and other amounts due and payable on the Class A-1
Notes, the Class A-2 Notes, the Class S Notes and the Class B Notes to the
extent set forth in Section 5.5 of the Sale and Servicing Agreement. Payment of
principal and interest on the Class B Notes is subordinated to payment on each
Distribution Date and Interim Distribution Date of the principal, interest and
other amounts due and payable on the Class A-1 Notes, the Class A-2 Notes and
the Class S Notes to the extent set forth in Section 5.5 of the Sale and
Servicing Agreement.
SECTION 2.8. Cancellation. All Notes surrendered for payment,
registration of transfer, exchange or redemption shall, if surrendered to any
Person other than the Trustee, be delivered to the Trustee and shall be promptly
canceled by the Trustee. The Issuer may at any time deliver to the Trustee for
cancellation any Notes previously authenticated and delivered hereunder which
the Issuer may have acquired in any manner whatsoever, and all Notes so
delivered shall be promptly canceled by the Trustee. No Notes shall be
authenticated in lieu of or in exchange for any Notes canceled as provided in
this Section, except as expressly permitted by this Indenture. All canceled
Notes may be held or disposed of by the Trustee in accordance with its standard
retention or disposal policy as in effect at the time unless the Issuer shall
timely direct by an Issuer Order that they be destroyed or returned to it;
provided that such Issuer Order is timely and the Notes have not been previously
disposed of by the Trustee.
SECTION 2.9. Release of Collateral.
(a) Termination Date. The Trust Collateral Agent shall, on
or after the Termination Date, release any remaining portion of the Trust Estate
from the lien created by this Indenture and deposit in the Collection Account
any funds then on deposit in any other Trust Account. The Trust Collateral Agent
shall release property from the lien created by this Indenture pursuant to this
Section 2.9 only upon receipt of an Issuer Request accompanied by an Officer's
Certificate meeting the applicable requirements of Section 12.1.
(b) Take-Out Securitization; Other Repurchases. For purposes
of selling and transferring Receivables to AmeriCredit, either Seller or third
parties in connection with any Take-Out Securitization, or for any other reason,
the Issuer may obtain releases of the Trust Collateral Agent's (for the benefit
of the Noteholders) security interest in all or any part of the
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Collateral from time to time, provided that (i) immediately after giving effect
to any requested release, there exists no Borrowing Base Deficiency, (ii) unless
the Class A-1 Principal Balance, the Class A-2 Principal Balance, the Class B
Principal Balance, the Class C Principal Balance and the Class S Principal
Balance have been reduced to zero and interest thereon and other amounts due
hereunder with respect thereto have been paid in full, there is no Event of
Default or Default, (iii) in selecting Receivables for release in connection
with any Take-Out Securitization, the Issuer shall select Receivables in
accordance with the eligibility criteria established for such Take-Out
Securitization and additionally in accordance with the earliest origination date
of all Receivables and (iv) in selecting Receivables for release, the Issuer
shall not use any adverse selection procedures with respect to the Receivables
released. In addition, the Trust Collateral Agent shall release its lien on the
related Receivable in connection with the purchase of such Receivable by the
Servicer or by either Seller which is required or permitted under the Sale and
Servicing Agreement. Each Receivable released pursuant to either of the two
preceding sentences shall be purchased for an amount equal to the Purchase Price
with respect thereto (or such other amount as may be provided in the Sale and
Servicing Agreement with respect thereto). Each request (a "Transfer Request")
for a partial release of Collateral, except in connection with the repurchase by
the Servicer or by either Seller under the Sale and Servicing Agreement, shall
be in substantially the form of Exhibit D hereto, addressed to the
Administrative Agent, the Agents and the Trust Collateral Agent, demonstrating
compliance with the third immediately preceding sentence and acknowledging that
the receipt of proceeds from such sale or transfer shall be deposited into the
Collection Account. Each Transfer Request shall be given by the Issuer to the
Trustee and the Administrative Agent before 1:00 p.m. (New York City time) at
least two Business Days prior to the requested date of release, and the
Administrative Agent shall give notice of any such Transfer Request to the
related Agents before 4:00 p.m. (New York City time) on the day it receives such
request from the Issuer.
(c) Transfers. With respect to each Transfer Request that is
received by the Agent by 12:00 noon, New York City time, on a Business Day, the
Trust Collateral Agent shall use reasonable efforts to review such Transfer
Requests and to instruct the Custodian (if AmeriCredit is not the Custodian) to
prepare the files, identified in each Transfer Request, for delivery or shipment
by 12:00 noon, New York City time on the second succeeding Business Day.
(d) Continuation of Lien. Unless released in writing by the
Trust Collateral Agent, as herein provided, the security interest in favor of
the Trust Collateral Agent, for the benefit of the Noteholders, in any item of
Collateral shall continue in effect until such time as the Trust Collateral
Agent (on behalf of the Noteholders) shall have received payment in full of the
proceeds from the sale or transfer of such Collateral to third parties in
accordance with this Section 2.9.
(e) Application of Proceeds; No Duty. Neither of the Trust
Collateral Agent nor any Noteholder shall be under any duty at any time to
credit Issuer for any amount due from any third party in respect of any purchase
of any Collateral contemplated above, until the Trust Collateral Agent has
actually received such amount in immediately available funds for deposit to the
Collection Account. Neither the Trust Collateral Agent nor any Noteholder shall
be under any duty at any time to collect any amounts or otherwise enforce any
obligations due from any
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third party in respect of any such purchase of Receivables covered by the
release of such portion of Collateral or in respect of a securitization thereof
with a third party.
(f) Representation in Connection with Releases, Sales and
Transfers. The Issuer represents and warrants that each request for any release
or transfer in connection with Take-Out Securitizations pursuant to Section
2.9(b) shall automatically constitute a representation and warranty to the
Noteholders, the Trust Collateral Agent and the Trustee to the effect that
immediately before and after giving effect to such release or Transfer Request,
there is no Event of Default or Default (including, without limitation any
Borrowing Base Deficiency).
(g) Release of Security Interest. Upon receipt of a Transfer
Request or, in connection with the purchase of a Receivable by the Servicer or
by a Seller under the Sale and Servicing Agreement, upon the Servicer's written
request, and, in each case upon receipt in the Collection Account of proceeds
from the related sale or transfer, the Trust Collateral Agent shall promptly
release, at the Issuer's expense, such part of Collateral covered in connection
with the Transfer Request or such Servicer's request and shall deliver, at the
Issuer's expense, the documents and certificates on the released portion of
Collateral to the trustee or such similar entity in connection with any release
pursuant to Section 2.9(b) or, in connection with the purchase of a Receivable
by the Servicer or by a Seller under the Sale and Servicing Agreement; provided
that the trustee or such similar entity in connection with any release pursuant
to Section 2.9(b) or the Servicer, as the case may be, acknowledges and agrees
(i) that all proceeds thereof, but in an amount not in excess of the Purchase
Price with respect thereto, that it receives are held in trust for the
Noteholders and are to be paid to the Trust Collateral Agent and (ii) on the
date such trustee receives such proceeds, such trustee shall transfer such funds
pursuant to instructions from the Trust Collateral Agent. The Trust Collateral
Agent shall deposit any such proceeds it receives in the Collection Account.
SECTION 2.10. Book-Entry Notes. If specified in an Issuer
Order, the Class D Notes and/or the Class E Notes, upon original issuance, will
be issued in the form of typewritten Notes representing the Book-Entry Notes, to
be delivered to The Depository Trust Company, the initial Clearing Agency, by,
or on behalf of, the Issuer. Such Notes shall initially be registered on the
Note Register in the name of Cede & Co., the nominee of the initial Clearing
Agency, and no Note Owner with respect to such Notes will receive a Definitive
Note representing such Note Owner's interest in such Note, except as provided in
Section 2.12. Unless and until definitive, fully registered Notes (the
"Definitive Notes") have been issued to such Note Owners pursuant to Section
2.12:
(i) the provisions of this Section shall be in full force
and effect;
(ii) the Note Registrar and the Trustee shall be entitled to
deal with the Clearing Agency for all purposes of this Indenture
(including the payment of principal of and interest on such Notes and
the giving of instructions or directions hereunder) as the sole Holder
of such Notes, and shall have no obligation to such Note Owners;
(iii) to the extent that the provisions of this Section
conflict with any other provisions of this Indenture, the provisions of
this Section shall control;
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(iv) the rights of such Note Owners shall be exercised only
through the Clearing Agency and shall be limited to those established by
law and agreements between such Note Owners and the Clearing Agency
and/or the Clearing Agency Participants. Unless and until Definitive
Notes are issued pursuant to Section 2.12, the initial Clearing Agency
will make book-entry transfers among the Clearing Agency Participants
and receive and transmit payments of principal of and interest on such
Notes to such Clearing Agency Participants;
(v) whenever this Indenture requires or permits actions to
be taken based upon instructions or directions of Noteholders evidencing
a specified percentage of the Outstanding Amount of the Notes, the
Clearing Agency shall be deemed to represent such percentage only to the
extent that it has received instructions to such effect from such Note
Owners and/or Clearing Agency Participants owning or representing,
respectively, such required percentage of the beneficial interest in
such Notes and has delivered such instructions to the Trustee; and
(vi) Such Note Owners may receive copies of any reports sent
to Noteholders pursuant to this Indenture, upon written request,
together with a certification that they are Note Owners and payment of
reproduction and postage expenses associated with the distribution of
such reports, from the Trustee at the Corporate Trust Office.
SECTION 2.11. Notices to Clearing Agency. Whenever a notice or
other communication to the Noteholders is required under this Indenture, unless
and until Definitive Notes shall have been issued to Note Owners with respect to
Book Entry Notes, pursuant to Section 2.12, the Trustee shall give all such
notices and communications specified herein to be given to the Noteholders to
the Clearing Agency, and shall have no obligation to such Note Owners.
SECTION 2.12. Definitive Notes. If (i) the Servicer advises
the Trustee in writing that the Clearing Agency is no longer willing or able to
properly discharge its responsibilities with respect to Notes issued as Book
Entry Notes, and the Servicer is unable to locate a qualified successor, (ii)
the Servicer at its option advises the Trustee in writing that it elects to
terminate the book-entry system through the Clearing Agency or (iii) after the
occurrence of an Event of Default, Note Owners representing beneficial interests
aggregating at least a majority of the Outstanding Amount of any class of Notes
issued as Book Entry Notes advise the Trustee through the Clearing Agency in
writing that the continuation of a book entry system through the Clearing Agency
is no longer in the best interests of such Note Owners, then the Clearing Agency
shall notify all such Note Owners and the Trustee of the occurrence of any such
event and of the availability of Definitive Notes to such Note Owners requesting
the same. Upon surrender to the Trustee of the typewritten Note or Notes
representing such Book-Entry Notes by the Clearing Agency, accompanied by
registration instructions, the Issuer shall execute and the Trustee shall
authenticate such Definitive Notes in accordance with the instructions of the
Clearing Agency. None of the Issuer, the Note Registrar or the Trustee shall be
liable for any delay in delivery of such instructions and may conclusively rely
on, and shall be fully protected in relying on, such instructions. Upon the
issuance of such Definitive Notes, the Trustee shall recognize the Holders of
the Definitive Notes as Noteholders.
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SECTION 2.13. Subordination.
(a) Anything in this Indenture or the Notes to the contrary
notwithstanding, the Issuer and the Holders of the Class E Notes agree for the
benefit of the Holders of the Class A-1 Notes, the Class A-2 Notes, the Class S
Notes, the Class B Notes, the Class C Notes and the Class D Notes that the Class
E Notes and the Issuer's rights in and to the Collateral (the "Subordinate Class
E Interests") shall be subordinate and junior to the Class A-1 Notes, the Class
A-2 Notes, the Class S Notes, the Class B Notes, the Class C Notes and the Class
D Notes to the extent and in the manner set forth in this Indenture including,
without limitation, as set forth in Section 2.7(c) (and Section 5.5 of the Sale
and Servicing Agreement) and hereinafter provided. If any Event of Default has
not been cured or waived and acceleration occurs in accordance with Article V,
including, without limitation, as a result of an Event of Default specified in
Section 5.1(a)(iii) or (iv), the principal amount of the Class A-1 Notes, the
Class A-2 Notes, the Class S Notes, the Class B Notes, the Class C Notes and the
Class D Notes shall be paid in full in cash before any further payment or
distribution is made on account of the principal amount of the Subordinate Class
E Interest. The Holders of the Class E Notes agree, for the benefit of the
Holders of the Class A-1 Notes, the Class A-2 Notes, the Class S Notes, the
Class B Notes, the Class C Notes and the Class D Notes, not to cause the filing
of a petition in bankruptcy against the Issuer for failure to pay to them
amounts due under the Class E Notes or hereunder in respect of any such Class E
Notes until the payment in full of the Class A-1 Notes, the Class A-2 Notes, the
Class S Notes, the Class B Notes, the Class C Notes and the Class D Notes and
not before at least one year and one day has elapsed since such payment or, if
longer, the applicable preference period then in effect.
(b) Anything in this Indenture or the Notes to the contrary
notwithstanding, the Issuer and the Holders of the Class D Notes agree for the
benefit of the Holders of the Class A-1 Notes, the Class A-2 Notes, the Class S
Notes, the Class B Notes and the Class C Notes that the Class D Notes and the
Issuer's rights in and to the Collateral (the "Subordinate Class D Interests")
shall be subordinate and junior to the Class A-1 Notes, the Class A-2 Notes, the
Class S Notes, the Class B Notes and the Class C Notes to the extent and in the
manner set forth in this Indenture including, without limitation, as set forth
in Section 2.7(c) (and Section 5.5 of the Sale and Servicing Agreement) and
hereinafter provided. If any Event of Default has not been cured or waived and
acceleration occurs in accordance with Article V, including, without limitation,
as a result of an Event of Default specified in Section 5.1(a)(iii) or (iv), the
principal amount of the Class A-1 Notes, the Class A-2 Notes, the Class S Notes,
the Class B Notes and the Class C Notes shall be paid in full in cash before any
further payment or distribution is made on account of the principal amount of
the Subordinate Class D Interest. The Holders of the Class D Notes agree, for
the benefit of the Holders of the Class A-1 Notes, the Class A-2 Notes, the
Class S Notes, the Class B Notes and the Class C Notes, not to cause the filing
of a petition in bankruptcy against the Issuer for failure to pay to them
amounts due under the Class D Notes or hereunder in respect of any such Class D
Notes until the payment in full of the Class A-1 Notes, the Class A-2 Notes, the
Class S Notes, the Class B Notes and the Class C Notes and not before at least
one year and one day has elapsed since such payment or, if longer, the
applicable preference period then in effect.
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(c) Anything in this Indenture or the Notes to the contrary
notwithstanding, the Issuer and the Holders of the Class C Notes agree for the
benefit of the Holders of the Class A-1 Notes, the Class A-2 Notes, the Class S
Notes and the Class B Notes that the Class C Notes and the Issuer's rights in
and to the Collateral (the "Subordinate Class C Interests") shall be subordinate
and junior to the Class A-1 Notes, the Class A-2 Notes, the Class S Notes, and
the Class B Notes to the extent and in the manner set forth in this Indenture
including, without limitation, as set forth in Section 2.7(c) (and Section 5.5
of the Sale and Servicing Agreement) and hereinafter provided. If any Event of
Default has not been cured or waived and acceleration occurs in accordance with
Article V, including, without limitation, as a result of an Event of Default
specified in Section 5.1(a)(iii) or (iv), the principal amount of the Class A-1
Notes, the Class A-2 Notes, the Class S Notes and the Class B Notes shall be
paid in full in cash before any further payment or distribution is made on
account of the principal amount of the Subordinate Class C Interest. The Holders
of the Class C Notes agree, for the benefit of the Holders of the Class A-1
Notes, the Class A-2 Notes, the Class S Notes and the Class B Notes, not to
cause the filing of a petition in bankruptcy against the Issuer for failure to
pay to them amounts due under the Class C Notes or hereunder in respect of any
such Class C Notes until the payment in full of the Class A-1 Notes, the Class
A-2 Notes, the Class S Notes and the Class B Notes and not before at least one
year and one day has elapsed since such payment or, if longer, the applicable
preference period then in effect.
(d) Anything in this Indenture or the Notes to the contrary
notwithstanding, the Issuer and the Holders of the Class B Notes agree for the
benefit of the Holders of the Class A-1 Notes, the Class A-2 Notes and the Class
S Notes that the Class B Notes and the Issuer's rights in and to the Collateral
(the "Subordinate Class B Interests"; together with the Subordinate Class E
Interests, the Subordinate Class D Interests and the Subordinate Class C
Interests, the "Subordinate Interests") shall be subordinate and junior to the
Class A-1 Notes, the Class A-2 Notes and the Class S Notes to the extent and in
the manner set forth in this Indenture including, without limitation, as set
forth in Section 2.7(c) (and Section 5.5 of the Sale and Servicing Agreement)
and hereinafter provided. If any Event of Default has not been cured or waived
and acceleration occurs in accordance with Article V, including, without
limitation, as a result of an Event of Default specified in Section 5.1(a)(iii)
or (iv), the principal amount of the Class A-1 Notes, the Class A-2 Notes and
the Class S Notes shall be paid in full in cash before any further payment or
distribution is made on account of the principal amount of the Subordinate Class
B Interest. The Holders of the Class B Notes agree, for the benefit of the
Holders of the Class A-1 Notes, the Class A-2 Notes and the Class S Notes, not
to cause the filing of a petition in bankruptcy against the Issuer for failure
to pay to them amounts due under the Class B Notes or hereunder in respect of
any such Class B Notes until the payment in full of the Class A-1 Notes, the
Class A-2 Notes and the Class S Notes and not before at least one year and one
day has elapsed since such payment or, if longer, the applicable preference
period then in effect.
(e) In the event that notwithstanding the provisions of this
Indenture, any holder of any Subordinate Interest shall have received any
payment or distribution in respect of such Subordinate Interests contrary to the
provisions of this Indenture, then, unless and until the relevant Class or
Classes of Notes to which the related Subordinate Interest is subordinated shall
have been paid in full in cash in accordance with this Indenture, such payment
or distribution
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shall be received and held in trust for the benefit of, and shall forthwith be
paid over and delivered to, the Trustee, which shall pay and deliver the same to
the Holders of the relevant Class or Classes of Notes to which the related
Subordinate Interest is subordinated in accordance with this Indenture;
provided, however, that, if any such payment or distribution is made other than
in cash, it shall be held by the Trustee as part of the Collateral and subject
in all respects to the provisions of this Indenture, including, without
limitation, this Section 2.13.
(f) Each Registered Owner of Subordinate Interests agrees
with all Holders of the relevant Class or Classes of Notes to which the related
Subordinate Interest is subordinated that such Holder of Subordinate Interests
shall not demand, accept, or receive any payment or distribution in respect of
such Subordinate Interests in violation of the provisions of this Indenture
including, without limitation, this Section 2.13; provided, however, that after
the relevant Class or Classes of Notes to which the related Subordinate Interest
is subordinated have been paid in full, the Holders of Subordinate Interests
shall be fully subrogated to the rights of the Holders of the relevant Class or
Classes of Notes to which the related Subordinate Interest is subordinated.
Nothing in this Section 2.13 shall affect the obligation of the Issuer to pay
Holders of Subordinate Interests.
ARTICLE III.
Covenants
SECTION 3.1. Payment of Principal and Interest. The Issuer
will duly and punctually pay the principal of and interest on the Notes in
accordance with the terms of the Notes and this Indenture. Without limiting the
foregoing, the Issuer will cause to be distributed all amounts on deposit in the
Collection Account on a Distribution Date deposited therein pursuant to the Sale
and Servicing Agreement or pursuant hereto (i) for the benefit of the Class A-l
Notes, to Class A-1 Noteholders, (ii) for the benefit of the Class A-2 Notes, to
Class A-2 Noteholders, (iii) for the benefit of the Class S Notes, to Class S
Noteholders, (iv) for the benefit of the Class B Notes, to Class B Noteholders,
(v) for the benefit of the Class C Notes, to the Class C Noteholders, (vi) for
the benefit of the Class D Notes, to the Class D Noteholders, and (vii) for the
benefit of the Class E Notes, to the Class E Noteholders. Amounts properly
withheld under the Code by any Person from a payment to any Noteholder of
interest and/or principal shall be considered as having been paid by the Issuer
to such Noteholder for all purposes of this Indenture.
SECTION 3.2. Maintenance of Office or Agency. The Issuer will
maintain in New York, New York, an office or agency where Notes may be
surrendered for registration of transfer or exchange, and where notices and
demands to or upon the Issuer in respect of the Notes and this Indenture may be
served. The Issuer hereby initially appoints the Trustee to serve as its agent
for the foregoing purposes. The Issuer will give prompt written notice to the
Trustee of the location, and of any change in the location, of any such office
or agency. If at any time the Issuer shall fail to maintain any such office or
agency or shall fail to furnish the Trustee with the address thereof, such
surrenders, notices and demands may be made or served at the Corporate Trust
Office, and the Issuer hereby appoints the Trustee as its agent to receive all
such surrenders, notices and demands.
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SECTION 3.3. Money for Payments to be Held in Trust. On or
before each Distribution Date and Redemption Date, the Issuer shall deposit or
cause to be deposited in the Collection Account an aggregate sum sufficient to
pay the amounts then becoming due under the Notes, such sum to be held in trust
for the benefit of the Persons entitled thereto and shall promptly notify the
Trustee of its action or failure so to act.
The Issuer will cause each Note Paying Agent other than the
Trustee to execute and deliver to the Trustee, the Agents and the Administrative
Agent an instrument in which such Note Paying Agent shall agree with the Trustee
(and if the Trustee acts as Note Paying Agent, it hereby so agrees), subject to
the provisions of this Section, that such Note Paying Agent will:
(i) hold all sums held by it for the payment of amounts due
with respect to the Notes in trust for the benefit of the Persons
entitled thereto until such sums shall be paid to such Persons or
otherwise disposed of as herein provided and pay such sums to such
Persons as herein provided;
(ii) give the Trustee notice of any default by the Issuer (or
any other obligor upon the Notes) of which it has actual knowledge in
the making of any payment required to be made with respect to the Notes;
(iii) at any time during the continuance of any such default,
upon the written request of the Trustee, forthwith pay to the Trustee
all sums so held in trust by such Paying Agent;
(iv) immediately resign as a Note Paying Agent and forthwith
pay to the Trustee all sums held by it in trust for the payment of Notes
if at any time it ceases to meet the standards required to be met by a
Note Paying Agent at the time of its appointment; and
(v) comply with all requirements of the Code with respect to
the withholding from any payments made by it on any Notes of any
applicable withholding taxes imposed thereon and with respect to any
applicable reporting requirements in connection therewith.
The Issuer may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, by Issuer
Order direct any Note Paying Agent to pay to the Trustee all sums held in trust
by such Note Paying Agent, such sums to be held by the Trustee upon the same
trusts as those upon which the sums were held by such Note Paying Agent; and
upon such a payment by any Note Paying Agent to the Trustee, such Note Paying
Agent shall be released from all further liability with respect to such money.
Subject to applicable laws with respect to the escheat of funds,
any money held by the Trustee or any Note Paying Agent in trust for the payment
of any amount due with respect to any Note and remaining unclaimed for two years
after such amount has become due and payable shall be discharged from such trust
and be paid to the Issuer on Issuer Request and shall be deposited by the
Trustee in the Collection Account; and the Holder of such Note shall thereafter,
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as an unsecured general creditor, look only to the Issuer for payment thereof
(but only to the extent of the amounts so paid to the Issuer), and all liability
of the Trustee or such Note Paying Agent with respect to such trust money shall
thereupon cease; provided, however, that the Trustee or such Note Paying Agent,
before being required to make any such repayment, shall at the expense of the
Issuer cause to be published once, in a newspaper published in the English
language, customarily published on each Business Day and of general circulation
in New York, New York, notice that such money remains unclaimed and that, after
a date specified therein, which shall not be less than 30 days from the date of
such publication, any unclaimed balance of such money then remaining will be
repaid to the Issuer. The Trustee shall also adopt and employ, at the expense of
the Issuer, any other reasonable means of notification of such repayment
(including, but not limited to, mailing notice of such repayment to Holders
whose Notes have been called but have not been surrendered for redemption or
whose right to or interest in moneys due and payable but not claimed is
determinable from the records of the Trustee or of any Note Paying Agent, at the
last address of record for each such Holder).
SECTION 3.4. Existence. Except as otherwise permitted by the
provisions of Section 3.10, the Issuer will keep in full effect its existence,
rights and franchises as a statutory trust under the laws of the State of
Delaware (unless it becomes, or any successor Issuer hereunder is or becomes,
organized under the laws of any other state or of the United States of America,
in which case the Issuer will keep in full effect its existence, rights and
franchises under the laws of such other jurisdiction) and will obtain and
preserve its qualification to do business in each jurisdiction in which such
qualification is or shall be necessary to protect the validity and
enforceability of this Indenture, the Notes, the Collateral and each other
instrument or agreement included in the Trust Estate.
SECTION 3.5. Protection of Trust Estate. The Issuer intends
the security interest Granted pursuant to this Indenture in favor of the
Noteholders to be prior to all other liens in respect of the Trust Estate, and
the Issuer shall take all actions necessary to obtain and maintain, in favor of
the Trust Collateral Agent, for the benefit of the Noteholders, a first lien on
and a first priority perfected security interest in the Trust Estate. The Issuer
will from time to time prepare (or shall cause to be prepared), execute and
deliver all such supplements and amendments hereto and all such financing
statements, continuation statements, instruments of further assurance and other
instruments, and will take such other action necessary or advisable to:
(i) Grant more effectively all or any portion of the Trust
Estate;
(ii) maintain or preserve the lien and security interest (and
the priority thereof) in favor of the Trust Collateral Agent for the
benefit of the Noteholders created by this Indenture or carry out more
effectively the purposes hereof;
(iii) perfect, publish notice of or protect the validity of
any Grant made or to be made by this Indenture;
(iv) enforce any of the Collateral;
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(v) preserve and defend title to the Trust Estate and the
rights of the Trust Collateral Agent in such Trust Estate against the
claims of all persons and parties; and
(vi) pay all taxes or assessments levied or assessed upon the
Trust Estate when due.
The Issuer hereby designates the Trust Collateral Agent its agent and
attorney-in-fact to execute any financing statement, continuation statement or
other instrument required by the Trust Collateral Agent pursuant to this
Section.
SECTION 3.6. Opinions as to Trust Estate.
(a) On the Closing Date, the Issuer shall furnish to the
Trustee, the Trust Collateral Agent and the Administrative Agent an Opinion of
Counsel either stating that, in the opinion of such counsel, such action has
been taken with respect to the recording and filing of this Indenture, any
indentures supplemental hereto, and any other requisite documents, and with
respect to the execution and filing of any financing statements and continuation
statements, as are necessary to perfect and make effective the first priority
lien and security interest in favor of the Trust Collateral Agent, for the
benefit of the Noteholders, created by this Indenture and reciting the details
of such action, or stating that, in the opinion of such counsel, no such action
is necessary to make such lien and security interest effective.
(b) Within 120 days after the beginning of each calendar
year, beginning with the first calendar year beginning more than six months
after the Closing Date, the Issuer shall furnish to the Trustee, Trust
Collateral Agent and the Administrative Agent an Opinion of Counsel either
stating that, in the opinion of such counsel, such action has been taken with
respect to the recording, filing, re-recording and refiling of this Indenture,
any indentures supplemental hereto and any other requisite documents and with
respect to the execution and filing of any financing statements and continuation
statements as are necessary to maintain the lien and security interest created
by this Indenture and reciting the details of such action or stating that in the
opinion of such counsel no such action is necessary to maintain such lien and
security interest. Such Opinion of Counsel shall also describe the recording,
filing, re-recording and refiling of this Indenture, any indentures supplemental
hereto and any other requisite documents and the execution and filing of any
financing statements and continuation statements that will, in the opinion of
such counsel, be required to maintain the lien and security interest of this
Indenture until January 31 in the following calendar year.
SECTION 3.7. Performance of Obligations; Servicing of
Receivables.
(a) The Issuer will not take any action and will use its
best efforts not to permit any action to be taken by others that would release
any Person from any of such Person's material covenants or obligations under any
instrument or agreement included in the Trust Estate or that would result in the
amendment, hypothecation, subordination, termination or discharge of, or impair
the validity or effectiveness of, any such instrument or agreement, except as
ordered by any bankruptcy or other court or as expressly provided in this
Indenture, the Basic Documents or such other instrument or agreement.
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(b) The Issuer may contract with other Persons acceptable to
the Class A Majority, the Class B Majority and the Class C Majority, acting
together, to assist it in performing its duties under this Indenture, and any
performance of such duties by a Person identified to the Trustee and the
Administrative Agent in an Officer's Certificate of the Issuer shall be deemed
to be action taken by the Issuer. Initially, the Issuer has contracted with the
Servicer to assist the Issuer in performing its duties under this Indenture.
(c) The Issuer will punctually perform and observe all of
its obligations and agreements contained in this Indenture, the Basic Documents
and in the instruments and agreements included in the Trust Estate, including,
but not limited to, preparing (or causing to prepared) and filing (or causing to
be filed) all UCC financing statements and continuation statements required to
be filed by the terms of this Indenture and the Sale and Servicing Agreement in
accordance with and within the time periods provided for herein and therein.
Except as otherwise expressly provided therein, the Issuer shall not waive,
amend, modify, supplement or terminate any Basic Document or any provision
thereof without the consent of the Class A Majority, the Class B Majority and
the Class C Majority, acting together.
(d) If a responsible officer of the Owner Trustee shall have
actual knowledge of the occurrence of a Servicer Termination Event under the
Sale and Servicing Agreement, the Issuer shall promptly notify the Trustee, the
Administrative Agent and the Rating Agencies thereof in accordance with Section
12.4, and shall specify in such notice the action, if any, the Issuer is taking
in respect of such default. If a Servicer Termination Event shall arise from the
failure of the Servicer to perform any of its duties or obligations under the
Sale and Servicing Agreement with respect to the Receivables, the Issuer shall
take all reasonable steps available to it to remedy such failure.
(e) The Issuer agrees that it will not waive timely
performance or observance by the Servicer or either Seller of their respective
duties under the Basic Documents without the prior consent of the Class A
Majority, the Class B Majority and the Class C Majority, acting together.
SECTION 3.8. Negative Covenants. So long as any Notes are
Outstanding, the Issuer shall not:
(i) except as expressly permitted by this Indenture or the
Basic Documents, sell, transfer, exchange or otherwise dispose of any of
the properties or assets of the Issuer, including those included in the
Trust Estate, unless directed to do so by the Trustee;
(ii) claim any credit on, or make any deduction from the
principal or interest payable in respect of, the Notes (other than
amounts properly withheld from such payments under the Code) or assert
any claim against any present or former Noteholder by reason of the
payment of the taxes levied or assessed upon any part of the Trust
Estate; or
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(iii) (A) permit the validity or effectiveness of this
Indenture to be impaired, or permit the lien in favor of the Trust
Collateral Agent created by this Indenture to be amended, hypothecated,
subordinated, terminated or discharged, or permit any Person to be
released from any covenants or obligations with respect to the Notes
under this Indenture except as may be expressly permitted hereby, (B)
permit any lien, charge, excise, claim, security interest, mortgage or
other encumbrance (other than the lien of this Indenture) to be created
on or extend to or otherwise arise upon or burden the Trust Estate or
any part thereof or any interest therein or the proceeds thereof (other
than tax liens, mechanics' liens and other liens that arise by operation
of law, in each case on a Financed Vehicle and arising solely as a
result of an action or omission of the related Obligor), (C) permit the
lien of this Indenture not to constitute a valid first priority (other
than with respect to any such tax, mechanics' or other lien) security
interest in the Trust Estate, or (D) amend, modify or fail to comply
with the provisions of the Basic Documents without the prior written
consent of the Trustee.
SECTION 3.9. Annual Statement as to Compliance. The Issuer
will deliver to the Trustee, the Agents and the Administrative Agent, within 120
days after the end of each fiscal year of the Issuer (commencing with the fiscal
year ended December 31, 2002), an Officer's Certificate stating, as to the
Authorized Officer signing such Officer's Certificate, that
(i) a review of the activities of the Issuer during such
year and of performance under this Indenture has been made under such
Authorized Officer's supervision; and
(ii) to the best of such Authorized Officer's knowledge,
based on such review, the Issuer has complied with all conditions and
covenants under this Indenture and the other Basic Documents throughout
such year, or, if there has been a default in the compliance of any such
condition or covenant, specifying each such default known to such
Authorized Officer and the nature and status thereof.
SECTION 3.10. Issuer May Consolidate, Etc. Only on Certain
Terms.
(a) The Issuer shall not consolidate or merge with or into
any other Person, unless
(i) the Person (if other than the Issuer) formed by or
surviving such consolidation or merger shall be a Person organized and
existing under the laws of the United States of America or any state and
shall expressly assume, by an indenture supplemental hereto, executed
and delivered to the Trustee, in form satisfactory to the Trustee, the
due and punctual payment of the principal of and interest on all Notes
and the performance or observance of every agreement and covenant of
this Indenture on the part of the Issuer to be performed or observed,
all as provided herein;
(ii) immediately after giving effect to such transaction, no
Default or Event of Default shall have occurred and be continuing;
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(iii) the Rating Agency Condition shall have been satisfied
with respect to such transaction;
(iv) the Issuer shall have received an Opinion of Counsel
(and shall have delivered copies thereof to the Trustee, the Agents and
the Administrative Agent) to the effect that such transaction will not
have any material adverse tax consequence to the Trust, the
Administrative Agent, the Agents, any Noteholder or the
Certificateholder;
(v) any action as is necessary to maintain the lien and
security interest created by this Indenture shall have been taken;
(vi) the Issuer shall have delivered to the Trustee an
Officer's Certificate and an Opinion of Counsel each stating that such
consolidation or merger and such supplemental indenture comply with this
Article III and that all conditions precedent herein provided for
relating to such transaction have been complied with (including any
filing required by the Exchange Act); and
(vii) the Issuer shall have given the Administrative Agent
written notice of such conveyance or transfer at least 20 Business Days
prior to the consummation of such action and the Issuer or the Person
(if other than the Issuer) formed by or surviving such conveyance or
transfer has a net worth, immediately after such conveyance or transfer,
that is (a) greater than zero and (b) not less than the net worth of the
Issuer immediately prior to giving effect to such conveyance or
transfer.
(b) Except in accordance with Section 2.9, the Issuer shall
not convey or transfer all or substantially all of its properties or assets,
including those included in the Trust Estate, to any Person, unless
(i) the Person that acquires by conveyance or transfer the
properties and assets of the Issuer the conveyance or transfer of which
is hereby restricted shall (A) be a United States citizen or a Person
organized and existing under the laws of the United States of America or
any state, (B) expressly assume, by an indenture supplemental hereto,
executed and delivered to the Trustee, in form satisfactory to the
Trustee, the due and punctual payment of the principal of and interest
on all Notes and the performance or observance of every agreement and
covenant of this Indenture and each of the Basic Documents on the part
of the Issuer to be performed or observed, all as provided herein, (C)
expressly agree by means of such supplemental indenture that all right,
title and interest so conveyed or transferred shall be subject and
subordinate to the rights of Holders of the Notes, (D) unless otherwise
provided in such supplemental indenture, expressly agree to indemnify,
defend and hold harmless the Issuer against and from any loss, liability
or expense arising under or related to this Indenture and the Notes and
(E) expressly agree by means of such supplemental indenture that such
Person (or if a group of persons, then one specified Person) shall
prepare (or cause to be prepared) and make all filings with the
Commission (and any other appropriate Person) required by the Exchange
Act in connection with the Notes;
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(ii) immediately after giving effect to such transaction, no
Default or Event of Default shall have occurred and be continuing;
(iii) the Rating Agency Condition shall have been satisfied
with respect to such transaction;
(iv) the Issuer shall have received an Opinion of Counsel
(and shall have delivered copies thereof to the Trustee, the Agents and
the Administrative Agent) to the effect that such transaction will not
have any material adverse tax consequence to the Trust, the
Administrative Agent, the Agents, any Noteholder or the
Certificateholder;
(v) any action as is necessary to maintain the lien and
security interest created by this Indenture shall have been taken;
(vi) the Issuer shall have delivered to the Trustee an
Officer's Certificate and an Opinion of Counsel each stating that such
conveyance or transfer and such supplemental indenture comply with this
Article III and that all conditions precedent herein provided for
relating to such transaction have been complied with (including any
filing required by the Exchange Act); and
(vii) the Issuer shall have given the Administrative Agent
written notice of such conveyance or transfer at least 20 Business Days
prior to the consummation of such action and the acquiring Person has a
net worth, immediately after such conveyance or transfer, that is (a)
greater than zero and (b) not less than the net worth of the Issuer
immediately prior to giving effect to such conveyance or transfer.
(c) The Issuer shall deliver written notice to the
Administrative Agent and the Agents of any transfer of the ownership of, or
financing of, its trust certificates. The Issuer shall deliver written notice to
the Administrative Agent and the Agents of any transfer of the Class D Notes or
the Class E Notes from an Affiliate of the Issuer to a Person which is not an
Affiliate of the Issuer.
SECTION 3.11. Successor or Transferee.
(a) Upon any consolidation or merger of the Issuer in
accordance with Section 3.10(a), the Person formed by or surviving such
consolidation or merger (if other than the Issuer) shall succeed to, and be
substituted for, and may exercise every right and power of, the Issuer under
this Indenture with the same effect as if such Person had been named as the
Issuer herein.
(b) Upon a conveyance or transfer of all the assets and
properties of the Issuer pursuant to Section 3.10(b), AmeriCredit Master Trust
will be released from every covenant and agreement of this Indenture to be
observed or performed on the part of the Issuer with respect to the Notes
immediately upon the delivery of written notice from the Issuer to the Trustee
stating that AmeriCredit Master Trust is to be so released.
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SECTION 3.12. No Other Business. The Issuer shall not engage
in any business other than financing, purchasing, owning, selling and managing
the Receivables in the manner contemplated by this Indenture and the Basic
Documents and activities incidental thereto.
SECTION 3.13. No Borrowing. The Issuer shall not issue, incur,
assume, guarantee or otherwise become liable, directly or indirectly, for any
Indebtedness except for (i) the Notes, and (ii) any other Indebtedness permitted
by or arising under the Basic Documents. The proceeds of the Notes shall be used
exclusively to fund the Issuer's purchase of the Receivables and the other
assets specified in the Sale and Servicing Agreement, to fund the Reserve
Account and to pay the Issuer's organizational, transactional and start-up
expenses; provided that if a Borrowing Base Deficiency arises as a result of a
change in the Class A Credit Score Enhancement Rate, the Class B Credit Score
Enhancement Rate and/or the Class C Credit Score Enhancement Rate, including,
without limitation, as a result of an election of Option A or Option B as set
forth on Schedule 2 hereto, then the Issuer may use the proceeds of a Borrowing
under one Class of Notes to repay some or all of the outstanding principal
amount of another Class or Classes of Notes (including the payment of any
Limited Amortization Amount with respect to such Class or Classes) so long as,
after giving effect to such repayment, no Borrowing Base Deficiency exists.
SECTION 3.14. Servicer's Obligations. The Issuer shall cause
the Servicer to comply with Sections 4.9, 4.10 and 4.11 of the Sale and
Servicing Agreement.
SECTION 3.15. Guarantees, Loans, Advances and Other
Liabilities. Except as contemplated by the Sale and Servicing Agreement or this
Indenture, the Issuer shall not make any loan or advance or credit to, or
guarantee (directly or indirectly or by an instrument having the effect of
assuring another's payment or performance on any obligation or capability of so
doing or otherwise), endorse or otherwise become contingently liable, directly
or indirectly, in connection with the obligations, stocks or dividends of, or
own, purchase, repurchase or acquire (or agree contingently to do so) any stock,
obligations, assets or securities of, or any other interest in, or make any
capital contribution to, any other Person.
SECTION 3.16. Capital Expenditures. The Issuer shall not make
any expenditure (by long-term or operating lease or otherwise) for capital
assets (either realty or personalty).
SECTION 3.17. Compliance with Laws. The Issuer shall comply
with the requirements of all applicable laws, the non-compliance with which
would, individually or in the aggregate, materially and adversely affect the
ability of the Issuer to perform its obligations under the Notes, this Indenture
or any Basic Document.
SECTION 3.18. Restricted Payments. The Issuer shall not,
directly or indirectly, (i) pay any dividend or make any distribution (by
reduction of capital or otherwise), whether in cash, property, securities or a
combination thereof, to the Owner Trustee or any owner of a beneficial interest
in the Issuer or otherwise with respect to any ownership or equity interest or
security in or of the Issuer or to the Servicer, (ii) redeem, purchase, retire
or otherwise
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acquire for value any such ownership or equity interest or security or (iii) set
aside or otherwise segregate any amounts for any such purpose; provided,
however, that the Issuer may make, or cause to be made, distributions to the
Servicer, the Owner Trustee, the Trustee and the Certificateholders as permitted
by, and to the extent funds are available for such purpose under, the Sale and
Servicing Agreement or Trust Agreement so long as, at the time of such
declaration or payment (and after giving effect thereto), no Event of Default or
Default shall occur or be continuing and no amount payable by the Issuer under
any Basic Document is then due and owing but unpaid. The Issuer will not,
directly or indirectly, make payments to or distributions from the Collection
Account except in accordance with this Indenture and the Basic Documents.
SECTION 3.19. Notice of Events of Default. Upon a responsible
officer of the Owner Trustee having actual knowledge thereof, the Issuer agrees
to give the Trustee, the Administrative Agent, the Agents and the Rating
Agencies prompt written notice of each Event of Default or Default hereunder and
each default on the part of the Servicer or a Seller of its obligations under
the Sale and Servicing Agreement.
SECTION 3.20. Further Instruments and Acts. Upon request of
the Trustee, any Agent or any Administrative Agent, the Issuer will execute and
deliver such further instruments and do such further acts as may be reasonably
necessary or proper to carry out more effectively the purpose of this Indenture.
SECTION 3.21. Amendments of Sale and Servicing Agreement and
Trust Agreement. The Issuer shall not agree to any amendment to Section 11.1 of
the Sale and Servicing Agreement or Section 10.1 of the Trust Agreement to
eliminate the requirements thereunder that the Trustee or the Holders of the
Notes consent to amendments thereto as provided therein.
SECTION 3.22. Income Tax Characterization. For purposes of
federal income, state and local income and franchise and any other income taxes,
the Issuer will treat the Notes as indebtedness and hereby instructs the
Trustee, and each Noteholder (or beneficial Note Owner) shall be deemed, by
virtue of acquisition of its interest in such Note, to have agreed, to treat the
Notes as indebtedness for all applicable tax reporting purposes.
SECTION 3.23. Interest Rate Hedges. The Issuer shall maintain,
at all times on and after the date of the initial Borrowing hereunder, Interest
Rate Hedges (a) between the Issuer 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, respectively, and is listed on Schedule 1 hereto, (b) with an aggregate
notional principal amount not less than (and, in the case of a hedge which is
not an interest rate cap, not greater than) the Aggregate Note Principal Balance
at the time any such Interest Rate Hedge is entered into, which aggregate
notional principal amount may be stepped down on a schedule resulting from the
usage of an ABS not greater than 0.5 with respect to the Receivables, provided
that such ABS may not exceed 0.0 on any date after the termination of the
Commitments as of which the Aggregate Principal Balance shall be less than or
equal to 10% of the highest Aggregate Principal Balance since the Closing Date,
(c) with a final maturity date which is the date of the last required Scheduled
Receivable Payment or such earlier date
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(resulting from the usage of an ABS not greater than 0.5 with respect to the
Receivables, provided that such ABS may not exceed 0.0 on any date after the
termination of the Commitments as of which the Aggregate Principal Balance shall
be less than or equal to 10% of the highest Aggregate Principal Balance since
the Closing Date) approved by the Class A Majority, the Class B Majority and the
Class C Majority, acting together, (d) with respect to which the Trust
Collateral Agent has received an Interest Rate Hedge Assignment Acknowledgment,
(e) which is either (I) substantially in the form of Exhibit C or (II) otherwise
in form and substance reasonably acceptable to the Class A Majority, the Class B
Majority and the Class C Majority, acting together, and the Rating Agencies and
(f) a copy of which has been delivered to the Administrative Agent, the Agents
and the Trust Collateral Agent.
SECTION 3.24. Ratings Reaffirmations. On each Ratings
Reaffirmation Date or within 30 days thereafter, the Servicer shall obtain from
S&P and Moody's written reaffirmations that each Class of Notes have at least
the Requisite Ratings and shall distribute copies thereof to the Administrative
Agent and the Agents.
SECTION 3.25. Tangible Net Worth. The Issuer shall maintain at
all times a positive Tangible Net Worth.
SECTION 3.26. Change in Name or Jurisdiction of Organization.
The Issuer shall not make any change to its name or use any trade names,
fictitious names, assumed names or "doing business as" names or change the
jurisdiction under the laws of which it is organized.
SECTION 3.27. Limitation on Transactions with Affiliates. The
Issuer shall not enter into, or be a party to any transaction with any Affiliate
of the Issuer, except for (a) the transactions contemplated by the Basic
Documents and (b) to the extent not otherwise prohibited under this Agreement,
other transactions in the nature of employment contracts and directors' fees,
upon fair and reasonable terms materially no less favorable to the Issuer than
would be obtained in a comparable arm's-length transaction with a Person not an
Affiliate.
SECTION 3.28. Limitation on Investments. The Issuer shall not
form, or cause to be formed, any subsidiaries; or make or suffer to exist any
loans or advances to, or extend any credit to, or make any investments (by way
of transfer of property, contributions to capital, purchase of stock or
securities or evidences of indebtedness, acquisition of the business or assets,
or otherwise) in, any Affiliate or any other Person except as otherwise
permitted herein and pursuant to the Sale and Servicing Agreement.
SECTION 3.29. Borrowing Base Confirmation. The Issuer shall
deliver, or cause the Servicer to deliver, a Borrowing Base Confirmation to the
Trustee, the Agents and the Administrative Agent , (a) in connection with each
Borrowing pursuant to Section 12.6, (b) on each monthly date a Servicer's
Certificate is to be delivered, (c) on each Interim Payment Date or other date
Receivables are released from the lien hereof pursuant to Section 2.9 and (d) on
any date it wishes to demonstrate that a Borrowing Base Deficiency has been
cured.
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ARTICLE IV.
Satisfaction and Discharge
SECTION 4.1. Satisfaction and Discharge of Indenture. This
Indenture shall cease to be of further effect with respect to the Notes except
as to (i) rights of registration of transfer and exchange, (ii) substitution of
mutilated, destroyed, lost or stolen Notes, (iii) rights of Noteholders to
receive payments of principal thereof and interest thereon, (iv) Sections 3.3,
3.4, 3.5, 3.8, 3.10, 3.12, 3.13, 3.20, 3.21 and 3.22, (v) the rights,
obligations and immunities of the Trustee hereunder (including the rights of the
Trustee under Section 6.7 and the obligations of the Trustee under Section 4.2)
and (vi) the rights of Noteholders as beneficiaries hereof with respect to the
property so deposited with the Trustee payable to all or any of them, and the
Trustee, on demand of and at the expense of the Issuer, shall execute proper
instruments acknowledging satisfaction and discharge of this Indenture with
respect to the Notes, when
(A) either
(1) all Notes theretofore authenticated and
delivered (other than (i) Notes that have been
destroyed, lost or stolen and that have been
replaced or paid as provided in Section 2.5 and
(ii) Notes for whose payment money has
theretofore been deposited in trust or
segregated and held in trust by the Issuer and
thereafter repaid to the Issuer or discharged
from such trust, as provided in Section 3.3)
have been delivered to the Trustee for
cancellation; or
(2) all Notes not theretofore delivered to
the Trustee for cancellation
(i) have become due and payable, or
(ii) are to be called for redemption
within one year under arrangements
satisfactory to the Trustee for the
giving of notice of redemption by the
Trustee in the name, and at the expense,
of the Issuer,
and the Issuer, in the case of (i) or (ii) above, has
irrevocably deposited or caused to be irrevocably deposited with the Trust
Collateral Agent cash or direct obligations of or obligations guaranteed by the
United States of America (which will mature prior to the date such amounts are
payable), in trust for such purpose, in an amount sufficient to pay and
discharge the entire indebtedness on such Notes not theretofore delivered to the
Trustee for cancellation when due to the final Distribution Date therefor or
Redemption Date (if Notes shall have been called for redemption pursuant to
Section 10.1(a)), as the case may be;
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(B) the Issuer has paid or caused to be paid all
Issuer Secured Obligations; and
(C) the Issuer has delivered to the Trustee, the
Agents, the Trust Collateral Agent and the Administrative Agent
an Officer's Certificate and an Opinion of Counsel, each stating
that all conditions precedent herein provided for relating to
the satisfaction and discharge of this Indenture have been
complied with.
SECTION 4.2. Application of Trust Money. All moneys deposited
with the Trustee pursuant to Section 4.1 hereof shall be held in trust and
applied by it, in accordance with the provisions of the Notes, this Indenture
and the other Basic Documents, to the payment, either directly or through any
Note Paying Agent, as the Trustee may determine, to the Holders of the
particular Notes for the payment or redemption of which such moneys have been
deposited with the Trustee, of all sums due and to become due thereon for
principal and interest; but such moneys need not be segregated from other funds
except to the extent required herein or in the Sale and Servicing Agreement or
required by law.
SECTION 4.3. Repayment of Moneys Held by Note Paying Agent. In
connection with the satisfaction and discharge of this Indenture with respect to
the Notes, all moneys then held by any Note Paying Agent other than the Trustee
under the provisions of this Indenture with respect to such Notes shall, upon
demand of the Issuer, be paid to the Trustee to be held and applied according to
Section 3.3 and thereupon such Note Paying Agent shall be released from all
further liability with respect to such moneys.
ARTICLE V.
Remedies
SECTION 5.1. Events of Default. "Event of Default", wherever
used herein, means any one of the following events (whatever the reason for such
Event of Default and whether it shall be voluntary or involuntary or be effected
by operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body):
(i) default in the payment of any interest on any Note
(other than a Note held by AmeriCredit or an Affiliate thereof) or any
other amount (except principal) due with respect to any such Note when
the same becomes due and payable, and such default shall continue for a
period of two days; or
(ii) default in the payment of the principal of or any
installment of the principal of any Note when the same becomes due and
payable, and such default shall continue for a period of one day; or
(iii) the filing of a decree or order for relief by a court
having jurisdiction in the premises in respect of AmeriCredit, the
Issuer, AFC, either Seller, the Servicer or any
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substantial part of the Trust Estate in an involuntary case under any
applicable federal or State bankruptcy, insolvency or other similar law
now or hereafter in effect, or appointing a receiver, liquidator,
assignee, custodian, trustee, sequestrator or similar official of
AmeriCredit, the Issuer, AFC, either Seller, the Servicer or for any
substantial part of the Trust Estate, or ordering the winding-up or
liquidation of the affairs AmeriCredit, AFC, either Seller, the Servicer
or the Issuer, and such decree or order shall remain unstayed and in
effect for a period of 60 consecutive days; or
(iv) the commencement by AmeriCredit, AFC, either Seller, the
Servicer or the Issuer of a voluntary case under any applicable federal
or State bankruptcy, insolvency or other similar law now or hereafter in
effect, or the consent by AmeriCredit, AFC, either Seller, the Servicer
or the Issuer to the entry of an order for relief in an involuntary case
under any such law, or the consent by AmeriCredit, AFC, either Seller,
the Servicer or the Issuer to the appointment or taking possession by a
receiver, liquidator, assignee, custodian, trustee, sequestrator or
similar official of AmeriCredit, AFC, the Issuer, either Seller, the
Servicer or for any substantial part of the Trust Estate, or the making
by the Issuer of any general assignment for the benefit of creditors, or
the failure by AmeriCredit, AFC, either Seller, the Servicer or the
Issuer generally to pay its debts as such debts become due, or the
taking of action by AmeriCredit, AFC, either Seller, the Servicer or the
Issuer in furtherance of any of the foregoing.
(v) default in the observance or performance of any covenant
or agreement of the Issuer, either Seller, the Servicer, AmeriCredit (in
any capacity) or AFC (in any capacity) made in this Indenture (other
than a covenant or agreement, a default in the observance or performance
of which is elsewhere in this Section specifically dealt with), or any
representation or warranty of the Issuer, either Seller, the Servicer,
AmeriCredit (in any capacity) or AFC (in any capacity) made in this
Indenture, in any Basic Document or in any certificate or any other
writing delivered pursuant hereto or thereto or in connection herewith
or therewith (including any Servicer's Certificate or any Borrowing Base
Confirmation) proving to have been incorrect in any material respect as
of the time when the same shall have been made or deemed to have been
made, and such default shall continue or not be cured, or the
circumstance or condition in respect of which such misrepresentation or
warranty was incorrect shall not have been eliminated or otherwise
cured, for a period of, except in the case of the covenants and
agreements contained in Section 3.25 of this Indenture (as to which a
five Business Day grace period shall apply) and Sections 3.24 of this
Indenture and Section 7.3 of the Sale and Servicing Agreement (as to
each of which no grace period shall apply), 30 days after there shall
have been given, by registered or certified mail, to the Issuer, the
Sellers, the Servicer, AmeriCredit and AFC by the Trustee or to the
Issuer, the Servicer, the Sellers, AmeriCredit, AFC and the Trustee by
the Holders of at least 25% of the Outstanding Amount of any Class of
Notes, a written notice specifying such default or incorrect
representation or warranty and requiring it to be remedied and stating
that such notice is a "Notice of Event of Default" hereunder; provided
that no breach shall be deemed to occur hereunder in respect of any
representation or warranty relating to eligibility of any Receivable on
the Closing Date or its related Borrowing Date to the extent the related
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Seller has repurchased such Receivable in accordance with the provisions
of the Sale and Servicing Agreement; or
(vi) (a) The Class A Principal Balance on any day shall
exceed the Class A Borrowing Base on such day (a "Class A Borrowing Base
Deficiency"), (b) the Class B Principal Balance on any day shall exceed
the Class B Borrowing Base on such day (a "Class B Borrowing Base
Deficiency"), (c) the Class C Principal Balance on any day shall exceed
the Class C Borrowing Base on such day (a "Class C Borrowing Base
Deficiency"), (d) the Class D Principal Balance on any day shall exceed
the Class D Borrowing Base, if any, on such day (a "Class D Borrowing
Base Deficiency") (e) the Class E Principal Balance on any day shall
exceed the Class E Borrowing Base, if any, on such day (a "Class E
Borrowing Base Deficiency") or (f) the Class S Principal Balance on any
day shall exceed the Class S Borrowing Base on such day (a "Class S
Borrowing Base Deficiency") and, in any case, such condition continues
unremedied for (x) if such Borrowing Base Deficiency arises as a result
of an increase in the Class A Credit Score Enhancement Rate, the Class B
Credit Score Enhancement Rate or the Class C Credit Score Enhancement
Rate required by a Rating Agency in connection with a rating
reaffirmation pursuant to Section 3.24, two weeks or (y) otherwise, (i)
if the sum of the Class A Borrowing Base Deficiency, the Class B
Borrowing Base Deficiency, the Class S Principal Balance and the Class C
Borrowing Base Deficiency is less than 5% of the sum of the Class A
Principal Balance, the Class B Principal Balance, the Class S Borrowing
Base Deficiency and the Class C Principal Balance, five Business Days or
(ii) otherwise, two Business Days;
(vii) The Internal Revenue Service shall file notice of a Lien
pursuant to Section 6323 of the Internal Revenue Code with regard to any
assets of the Issuer or any material portion of the assets of
AmeriCredit Corp., AFC or AmeriCredit and such Lien shall not have been
released within 30 days, or the Pension Benefit Guaranty Corporation
shall file notice of a Lien pursuant to Section 4068 of ERISA with
regard to any of the assets of AmeriCredit Corp., the Issuer,
AmeriCredit or AFC and such Lien shall not have been released within 30
days;
(viii) (a) Any Basic Document or any Lien granted thereunder by
the Issuer, either Seller or AmeriCredit, shall (except in accordance
with its terms), in whole or in part, terminate, cease to be effective
or cease to be the legally valid, binding and enforceable obligation of
the Issuer, such Seller or AmeriCredit; or (b) the Issuer, either Seller
or AmeriCredit or any other party shall, directly or indirectly, contest
in any manner such effectiveness, validity, binding nature or
enforceability; or (c) any Lien securing any Issuer Secured Obligation
shall, in whole or in part, not be or cease to be a perfected first
priority security interest against the Issuer;
(ix) A Servicer Termination Event shall have occurred;
(x) The Issuer, either Seller, the Servicer, AmeriCredit
Corp., AmeriCredit, or AFC shall fail to pay any principal of or premium
or interest on any Indebtedness having a principal amount of $10,000,000
(or, in the case of the Issuer or AFC, $50,000) or
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greater, 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 Indebtedness;
or any other default under any agreement or instrument relating to any
such Indebtedness of the Issuer, either Seller, the Servicer,
AmeriCredit Corp., AmeriCredit, or AFC, as applicable, 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 Indebtedness; or any such Indebtedness 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
Indebtedness shall be required to be made, in each case, prior to the
stated maturity thereof;
(xi) There shall occur a "termination event" or "event of
default" or similar event (other than a default by a Noteholder (except
AmeriCredit and its Affiliates) or by an Interest Rate Hedge
counterparty) under any other Basic Document;
(xii) [Intentionally Omitted];
(xiii) As of any Distribution Date, the amount in the Reserve
Account is less than the Minimum Reserve Account Amount, and such
deficiency is not cured on or prior to the immediately succeeding
Distribution Date;
(xiv) Any Class of Notes does not have at least the Requisite
Ratings from S&P and Moody's;
(xv) A notice of termination with respect to the Lockbox
Account shall have been delivered, or a termination of the Lockbox
Agreement shall have otherwise occurred, and a replacement Lockbox Bank
listed on Schedule D to the Sale and Servicing Agreement shall not have
executed a lockbox agreement substantially in the form of Exhibit C to
the Sale and Servicing Agreement within 30 days of such notice;
(xvi) The weighted average AmeriCredit Score for all
Receivables shall be less than 220 for any period of three consecutive
Business Days;
(xvii) The average of the Monthly Extension Rates, as set forth
in the Servicer Certificates, for three consecutive Determination Dates
shall exceed 5.0%;
(xviii) A Change of Control shall occur with respect to
AmeriCredit Corp.;
(xix) The Tangible Net Worth of AmeriCredit Corp. shall be
less than the sum of (a) $1,700,000,000 plus (b) 75% of the cumulative
positive net income (without deduction for negative net income) of
AmeriCredit Corp. for each fiscal quarter having been completed since
June 30, 2003, as reported in each annual report on Form 10-K and
periodic report on Form 10-Q filed by AmeriCredit Corp. with the
Securities and
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Exchange Commission plus (c) 75% of the net proceeds of any equity
issued by AmeriCredit Corp. since June 30, 2003 minus (d) the lesser of
(i) $100,000,000 and (ii) the purchase price of all common stock of
AmeriCredit Corp. repurchased after November 5, 2003;
(xx) On any Determination 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 3 hereto, or any insurance agreement
event of default or other similar event other than those relating to
cumulative net losses (it being understood that a "trigger event" or
other similar event which results in the trapping of cash shall not
constitute such an event) with respect to any Receivables Pool with a
pool factor greater than 25% shall have occurred and be continuing and
shall not have been waived or cured within 30 days;
(xxi) AFC shall cease to be a direct or indirect wholly-owned
subsidiary of AmeriCredit; or AmeriCredit shall cease to be a direct or
indirect wholly-owned subsidiary of AmeriCredit Corp.; or AFC and
AmeriCredit shall at any time own less than 100% of the Certificates
issued pursuant to the Trust Agreement;
(xxii) The ratio, expressed as a percentage, of the Adjusted
Equity of AmeriCredit Corp. to the Managed Assets of AmeriCredit Corp
shall be less than 8.0% as of any fiscal quarter end;
(xxiii) The ratio of AmeriCredit Corp.'s EBITDA (plus any charge
related to restructuring plus any loss provision minus net charge-offs)
for the financial quarter ended March 31, 2003 to its Interest Expense
for the financial quarter ended March 31, 2003 shall be less than 1.8x.
The average of the ratios of AmeriCredit Corp.'s EBITDA to Interest
Expense for the two most recent financial quarters ended June 30, 2003
shall be less than 1.0x. The average of the ratios of AmeriCredit
Corp.'s EBITDA to Interest Expense for the two most recent financial
quarters ended September 30 2003 or December 31, 2003 shall be less than
1.1x. The average of the ratios of AmeriCredit Corp.'s EBITDA to
Interest Expense for the two most recent financial quarters ended March
31, 2004 and any two consecutive financial quarters thereafter shall be
less than 1.2x; or
(xxiv) Any repurchase of common stock by AmeriCredit Corp.
results in AmeriCredit Corp. and its subsidiaries, determined on a
consolidated basis in accordance with GAAP, having less than
$200,000,000 of unrestricted cash on the date of repurchase after giving
effect to such repurchase on such date.
SECTION 5.2. Rights Upon Event of Default.
(a) If an Event of Default specified in Section 5.1(iii) or
(iv) shall have occurred and be continuing, the Notes shall become immediately
due and payable at par, together with accrued interest thereon. If any other
Event of Default shall have occurred and be
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continuing, the Trustee in its discretion may, or if so requested in writing by
any of the Class A Required Noteholders, the Class B Required Noteholders, the
Class C Required Noteholders, the Class D Required Noteholders or the Class E
Required Noteholders shall exercise any of the remedies specified in Section
5.4(a), subject to any limitations set forth therein.
(b) If an Event of Default shall have occurred and be
continuing, the Trustee in its discretion may, or if so requested in writing by
any of the Class A Required Noteholders, the Class B Required Noteholders, the
Class C Required Noteholders, the Class D Required Noteholders or the Class E
Required Noteholders shall declare by written notice to the Issuer that the
Notes become, whereupon they shall become, immediately due and payable at par,
together with accrued interest thereon.
(c) At any time after such declaration of acceleration of
maturity has been made and before a judgment or decree for payment of the money
due has been obtained by the Trustee as hereinafter in this Article V provided,
the Required Noteholders of each Class which declared such acceleration may, by
written notice to the Issuer and the Trustee, rescind and annul such declaration
and its consequences if:
(i) the Issuer has paid or deposited with the Trustee a sum
sufficient to pay:
(A) all payments of principal of and
interest on all Notes and all other amounts that
would then be due hereunder or upon such Notes
(including, without limitation, Class A-1
Monthly Costs and Expenses, Class A-2 Monthly
Costs and Expenses, Class B Monthly Costs and
Expenses, Class C Monthly Costs and Expenses and
Class S Monthly Costs and Expenses) if the Event
of Default giving rise to such acceleration had
not occurred; and
(B) all sums paid or advanced by the Trustee
hereunder and the reasonable compensation,
expenses, disbursements and advances of the
Trustee and its agents and counsel; and
(ii) all Events of Default, other than the nonpayment of the
principal of the Notes that has become due solely by such acceleration,
have been cured or waived as provided in Section 5.13.
No such rescission shall affect any subsequent default or impair
any right consequent thereto.
SECTION 5.3. Collection of Indebtedness and Suits for
Enforcement by Trustee.
(a) The Issuer covenants that if (i) default is made in the
payment of any interest on any Note when the same becomes due and payable, and
such default continues for a period of five days, or (ii) default is made in the
payment of the principal of or any installment of the principal of any Note when
the same becomes due and payable, and such default continues
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for a period of one day, the Issuer will pay to the Trustee, for the benefit of
the Holders of the Notes, the whole amount then due and payable on such Notes
for principal and interest, with interest upon the overdue principal, and, to
the extent payment at such rate of interest shall be legally enforceable, upon
overdue installments of interest, at the applicable interest rate set forth in
the related Note Purchase Agreement and in addition thereto such further amount
as shall be sufficient to cover the costs and expenses of collection, including
the reasonable compensation, expenses, disbursements and advances of the Trustee
and its agents and counsel.
(b) Each Noteholder hereby irrevocably and unconditionally
appoints the Trustee as the true and lawful attorney-in-fact of such Noteholder,
with full power of substitution, to execute, acknowledge and deliver any notice,
document, certificate, paper, pleading or instrument and to do in the name of
the Trustee as well as in the name, place and stead of such Noteholder, such
acts, things and deeds for or on behalf of and in the name of such Noteholder
under this Indenture (including specifically under Section 5.4) and under the
Basic Documents which such Noteholder could or might do or which may be
necessary, desirable or convenient in such Trustee's sole discretion to effect
the purposes contemplated hereunder and under the Basic Documents and, without
limitation, following the occurrence of an Event of Default, exercise full
right, power and authority to take, or defer from taking, any and all acts with
respect to the administration, maintenance or disposition of the Trust Estate.
(c) If an Event of Default occurs and is continuing, the
Trustee may in its discretion and shall, at the direction of the Class A
Required Noteholders, the Class B Required Noteholders, the Class C Required
Noteholders, the Class S Required Noteholders (if the Class S Notes are
Outstanding), the Class D Required Noteholders or the Class E Required
Noteholders (except as provided in Section 5.3(d) below), proceed to protect and
enforce its rights and the rights of the Noteholders by such appropriate
Proceedings as the Trustee shall deem most effective to protect and enforce any
such rights, whether for the specific enforcement of any covenant or agreement
in this Indenture or in aid of the exercise of any power granted herein, or to
enforce any other proper remedy or legal or equitable right vested in the
Trustee by this Indenture or by law.
(d) Notwithstanding anything to the contrary contained in
this Indenture (including, without limitation, Sections 5.4(a), 5.12, 5.13 and
5.17), if the Issuer fails to perform its obligations under Section 10.1(b)
hereof when and as due, the Trustee shall, at the direction of the Class A
Required Noteholders, the Class B Required Noteholders, the Class C Required
Noteholders, the Class S Required Noteholders (if the Class S Notes are
Outstanding), the Class D Required Noteholders or the Class E Required
Noteholders, proceed to protect and enforce its rights and the rights of the
Noteholders by such appropriate proceedings as the Trustee shall deem most
effective to protect and enforce any such rights, whether for specific
performance of any covenant or agreement in this Indenture or in aid of the
exercise of any power granted herein, or to enforce any other proper remedy or
legal or equitable right vested in the Trustee by this Indenture or by law.
(e) In case there shall be pending, relative to the Issuer
or any other obligor upon the Notes or any Person having or claiming an
ownership interest in the Trust Estate, proceedings under Title 11 of the United
States Code or any other applicable federal or State
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bankruptcy, insolvency or other similar law, or in case a receiver, assignee or
trustee in bankruptcy or reorganization, liquidator, sequestrator or similar
official shall have been appointed for or taken possession of the Issuer or its
property or such other obligor or Person, or in case of any other comparable
judicial proceedings relative to the Issuer or other obligor upon the Notes, or
to the creditors or property of the Issuer or such other obligor, the Trustee,
irrespective of whether the principal of any Notes shall then be due and payable
as therein expressed or by declaration or otherwise and irrespective of whether
the Trustee shall have made any demand pursuant to the provisions of this
Section, shall be entitled and empowered, by intervention in such proceedings or
otherwise:
(i) to file and prove a claim or claims for the whole amount
of principal and interest owing and unpaid in respect of the Notes and
to file such other papers or documents as may be necessary or advisable
in order to have the claims of the Trustee (including any claim for
reasonable compensation to the Trustee and each predecessor Trustee, and
their respective agents, attorneys and counsel, and for reimbursement of
all expenses and liabilities incurred, and all advances made, by the
Trustee and each predecessor Trustee, except as a result of negligence,
bad faith or willful misconduct) and of the Noteholders allowed in such
proceedings;
(ii) unless prohibited by applicable law and regulations, to
vote on behalf of the Noteholders in any election of a trustee, a
standby trustee or person performing similar functions in any such
proceedings;
(iii) to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute all amounts
received with respect to the claims of the Noteholders and of the
Trustee on their behalf; and
(iv) to file such proofs of claim and other papers or
documents as may be necessary or advisable in order to have the claims
of the Trustee or the Noteholders allowed in any judicial proceedings
relative to the Issuer, its creditors and its property;
and any trustee, receiver, liquidator, custodian or other similar official in
any such Proceeding is hereby authorized by each of such Noteholders to make
payments to the Trustee, and, in the event that the Trustee shall consent to the
making of payments directly to such Noteholders, to pay to the Trustee such
amounts as shall be sufficient to cover reasonable compensation to the Trustee,
each predecessor Trustee and their respective agents, attorneys and counsel, and
all other expenses and liabilities incurred, and all advances made, by the
Trustee and each predecessor Trustee except as a result of negligence or bad
faith.
(f) Nothing herein contained shall be deemed to authorize
the Trustee to authorize or consent to or vote for or accept or adopt on behalf
of any Noteholder any plan of reorganization, arrangement, adjustment or
composition affecting the Notes or the rights of any Holder thereof or to
authorize the Trustee to vote in respect of the claim of any Noteholder in any
such Proceeding except, as aforesaid, to vote for the election of a trustee in
bankruptcy or similar person.
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(g) All rights of action and of asserting claims under this
Indenture or under any of the Notes, may be enforced by the Trustee without the
possession of any of the Notes or the production thereof in any trial or other
proceedings relative thereto, and any such action or Proceedings instituted by
the Trustee shall be brought in its own name as trustee of an express trust, and
any recovery of judgment, subject to the payment of the expenses, disbursements
and compensation of the Trustee, each predecessor Trustee and their respective
agents and attorneys, shall be for the ratable benefit of the Holders of the
Notes.
(h) In any Proceedings brought by the Trustee (and also any
Proceedings involving the interpretation of any provision of this Indenture),
the Trustee shall be held to represent all the Holders of the Notes, and it
shall not be necessary to make any Noteholder a party to any such proceedings.
SECTION 5.4. Remedies.
(a) If an Event of Default shall have occurred and be
continuing, the Trustee may and shall, at the direction of the Class A Required
Noteholders, the Class B Required Noteholders, the Class C Required Noteholders,
the Class S Required Noteholders (if the Class S Notes are Outstanding), the
Class D Required Noteholders or the Class E Required Noteholders (except as
provided in Section 5.3(d) above), do one or more of the following (subject to
Section 5.5):
(i) institute Proceedings in its own name and as trustee of
an express trust for the collection of all amounts then payable on the
Notes or under this Indenture with respect thereto, whether by
declaration or otherwise, enforce any judgment obtained, and collect
from the Issuer and any other obligor upon such Notes moneys adjudged
due;
(ii) institute Proceedings from time to time for the complete
or partial foreclosure of this Indenture with respect to the Trust
Estate;
(iii) exercise any remedies of a secured party under the UCC
and take any other appropriate action to protect and enforce the rights
and remedies of the Trustee and the Holders of the Notes; and
(iv) direct the Trust Collateral Agent to sell the Trust
Estate or any portion thereof or rights or interest therein, at one or
more public or private sales called and conducted in any manner
permitted by law; provided, however, that the Trustee may not sell or
otherwise liquidate the Trust Estate following an Event of Default
unless (a) the Majority Noteholders of the Controlling Class consent
thereto and (b) either (I) all amounts due and owing under the Notes and
the other Related Documents to the holders of Notes of each Class of
Notes which are (x) not held by the Issuer, AFC, AmeriCredit or an
Affiliate and (y) junior to the Controlling Class shall be paid in full
with the proceeds of such sale or liquidation or (II) the Majority
Noteholders of each such Class of Notes which is not paid in full with
the proceeds of such sale or liquidation consent thereto.
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In determining such sufficiency or insufficiency with respect to
clause (y) and (z), the Trustee may, but need not, obtain and conclusively rely
upon an opinion of an Independent investment banking or accounting firm of
national reputation as to the feasibility of such proposed action and as to the
sufficiency of the Trust Estate for such purpose.
SECTION 5.5. Optional Preservation of the Receivables. If the
Notes have been declared to be due and payable under Section 5.2 following an
Event of Default and such declaration and its consequences have not been
rescinded and annulled, the Trustee may, at the direction of the Required
Noteholders of the Controlling Class, elect to direct the Trust Collateral Agent
to maintain possession of the Trust Estate.
SECTION 5.6. Priorities(a) Following the acceleration of the
Notes pursuant to Section 5.2, the receipt of Insolvency Proceeds pursuant to
Section 9.1(b) of the Sale and Servicing Agreement, such Insolvency Proceeds,
shall be applied by the Trust Collateral Agent on the related Distribution Date
in the order of priority set forth in Section 5.5(b) of the Sale and Servicing
Agreement.
(b) The Trustee may fix a record date and payment date for
any payment to Noteholders pursuant to this Section 5.6. At least 15 days before
such record date the Issuer shall mail to each Noteholder and the Trustee a
notice that states the record date, the payment date and the amount to be paid.
SECTION 5.7. [Reserved].
SECTION 5.8. Unconditional Rights of Noteholders To Receive
Principal and Interest. Notwithstanding any other provisions in this Indenture,
the Holder of any Note shall have the right, which is absolute and
unconditional, to receive payment of the principal of and interest, if any, on
such Note on or after the respective due dates thereof expressed in such Note or
in this Indenture (or, in the case of redemption, on or after the Redemption
Date) and to institute suit for the enforcement of any such payment, and such
right shall not be impaired without the consent of such Holder.
SECTION 5.9. Restoration of Rights and Remedies. If the
Trustee or any Noteholder has instituted any Proceeding to enforce any right or
remedy under this Indenture and such proceeding has been discontinued or
abandoned for any reason or has been determined adversely to the Trustee or to
such Noteholder, then and in every such case the Issuer, the Trustee and the
Noteholders shall, subject to any determination in such Proceeding, be restored
severally and respectively to their former positions hereunder, and thereafter
all rights and remedies of the Trustee and the Noteholders shall continue as
though no such Proceeding had been instituted.
SECTION 5.10. Rights and Remedies Cumulative. No right or
remedy herein conferred upon or reserved to the Trustee or to the Noteholders is
intended to be exclusive of any other right or remedy, and every right and
remedy shall, to the extent permitted by law, be cumulative and in addition to
every other right and remedy given hereunder or now or hereafter existing at law
or in equity or otherwise. The assertion or employment of any right or remedy
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hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
SECTION 5.11. Delay or Omission Not a Waiver. No delay or
omission of the Trustee or any Holder of any Note to exercise any right or
remedy accruing upon any Default or Event of Default shall impair any such right
or remedy or constitute a waiver of any such Default or Event of Default or an
acquiescence therein. Every right and remedy given by this Article V or by law
to the Trustee or to the Noteholders may be exercised from time to time, and as
often as may be deemed expedient, by the Trustee or by the Noteholders, as the
case may be.
SECTION 5.12. Control by Noteholders. The Required Noteholders
of the Controlling Class shall have the right to direct the time, method and
place of conducting any Proceeding for any remedy available to the Trustee with
respect to the Notes or exercising any trust or power conferred on the Trustee;
provided that
(i) such direction shall not be in conflict with any rule of
law or with this Indenture; and
(ii) subject to the express terms of Section 5.4, any
direction to the Trustee to sell or liquidate the Trust Estate shall be
subject to the requirements the Trustee may not sell or otherwise
liquidate the Trust Estate following an Event of Default unless (a) the
Majority Noteholders of the Controlling Class consent thereto and (b)
either (I) all amounts due and owing under the Notes and the other
Related Documents to the holders of Notes of each Class of Notes which
are (x) not held by the Issuer, AFC, AmeriCredit or an Affiliate and (y)
junior to the Controlling Class shall be paid in full with the proceeds
of such sale or liquidation or (II) the Majority Noteholders of each
such Class of Notes which is not paid in full with the proceeds of such
sale or liquidation consent thereto;
(iii) the Trustee may take any other action deemed proper by
the Trustee that is not inconsistent with such direction;
provided, however, that, subject to Article VI, the Trustee need not take any
action that it determines might involve it in liability, financial or otherwise,
without receiving indemnity satisfactory to it.
SECTION 5.13. Waiver of Past Defaults. Prior to the
declaration of the acceleration of the maturity of the Notes as provided in
Section 5.4, the Class A Majority, the Class B Majority and the Class C
Majority, acting together, may waive any past Default or Event of Default and
its consequences except a Default (a) in payment of principal of or interest on
any of the Notes, (b) in respect of a covenant or provision hereof which cannot
be modified or amended without the consent of the Holder of each Note, (c) a
Borrowing Base Deficiency and (d) a Default or Event of Default under Section
5.1(viii)(c) or 5.1(xiv). (Waivers of any Default or Event of Default of a type
set forth in (a) through (d) of the preceding sentence shall require the consent
of all Noteholders.) In the case of any such waiver, the Issuer, the Trustee and
the Holders of the Notes shall be restored to their former positions and rights
hereunder,
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respectively; but no such waiver shall extend to any subsequent or other Default
or impair any right consequent thereto.
Upon any such waiver, such Default shall cease to exist and be
deemed to have been cured and not to have occurred, and any Event of Default
arising therefrom shall be deemed to have been cured and not to have occurred,
for every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other Default or Event of Default or impair any right consequent
thereto.
SECTION 5.14. [Reserved].
SECTION 5.15. Waiver of Stay or Extension Laws. The Issuer
covenants (to the extent that it may lawfully do so) that it will not at any
time insist upon, or plead or in any manner whatsoever, claim or take the
benefit or advantage of, any stay or extension law wherever enacted, now or at
any time hereafter in force, that may affect the covenants or the performance of
this Indenture; and the Issuer (to the extent that it may lawfully do so) hereby
expressly waives all benefit or advantage of any such law, and covenants that it
will not hinder, delay or impede the execution of any power herein granted to
the Trustee, but will suffer and permit the execution of every such power as
though no such law had been enacted.
SECTION 5.16. Action on Notes. The Trustee's right to seek and
recover judgment on the Notes or under this Indenture shall not be affected by
the seeking, obtaining or application of any other relief under or with respect
to this Indenture. Neither the lien of this Indenture nor any rights or remedies
of the Trustee or the Noteholders shall be impaired by the recovery of any
judgment by the Trustee against the Issuer or by the levy of any execution under
such judgment upon any portion of the Trust Estate or upon any of the assets of
the Issuer.
SECTION 5.17. Performance and Enforcement of Certain
Obligations.
(a) Promptly following a request from the Trustee to do so
and at the Servicer's expense, the Issuer agrees to take all such lawful action
as the Trustee may request to compel or secure the performance and observance by
either Seller and the Servicer, as applicable, of each of their obligations to
the Issuer under or in connection with the Sale and Servicing Agreement in
accordance with the terms thereof, and to exercise any and all rights, remedies,
powers and privileges lawfully available to the Issuer under or in connection
with the Sale and Servicing Agreement to the extent and in the manner directed
by the Trustee, including the transmission of notices of default on the part of
either Seller or the Servicer thereunder and the institution of legal or
administrative actions or Proceedings to compel or secure performance by either
Seller or the Servicer of each of their obligations under the Sale and Servicing
Agreement.
(b) If an Event of Default has occurred and is continuing,
the Trustee may, and, at the written direction of the Class A Required
Noteholders, the Class B Required Noteholders, the Class C Required Noteholders,
the Class S Required Noteholders (if the Class S Notes are Outstanding), the
Class D Required Noteholders or the Class E Required Noteholders, shall, subject
to Article VI, exercise all rights, remedies, powers, privileges and claims of
the
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Issuer against the Sellers or the Servicer under or in connection with the Sale
and Servicing Agreement, including the right or power to take any action to
compel or secure performance or observance by the Sellers or the Servicer of
each of their obligations to the Issuer thereunder and to give any consent,
request, notice, direction, approval, extension or waiver under the Sale and
Servicing Agreement, and any right of the Issuer to take such action shall be
suspended.
ARTICLE VI.
The Trustee and the Trust Collateral Agent
SECTION 6.1. Duties of Trustee.
(a) If an Event of Default has occurred and is continuing,
the Trustee shall exercise the rights and powers vested in it by this Indenture
and the Basic Documents to which is a party and use the same degree of care and
skill in its exercise as a prudent person would exercise or use under the
circumstances in the conduct of such person's own affairs.
(b) Except during the continuance of an Event of Default:
(i) the Trustee undertakes to perform such duties and only
such duties as are specifically set forth in this Indenture and no
implied covenants or obligations shall be read into this Indenture
against the Trustee; and
(ii) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness
of the opinions expressed therein, upon certificates or opinions
furnished to the Trustee and conforming to the requirements of this
Indenture; however, the Trustee shall examine the certificates and
opinions to determine whether or not they conform on their face to the
requirements of this Indenture.
(c) The Trustee may not be relieved from liability for its
own negligent action, its own negligent failure to act or its own willful
misconduct, except that:
(i) this paragraph does not limit the effect of paragraph
(b) of this Section;
(ii) the Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer unless it is proved
that the Trustee was negligent in ascertaining the pertinent facts; and
(iii) the Trustee shall not be liable with respect to any
action it takes or omits to take in good faith in accordance with a
direction received by it pursuant to Section 5.12.
(d) The Trustee shall not be liable for interest on any
money received by it except as the Trustee may agree in writing with the Issuer.
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(e) Money held in trust by the Trustee need not be
segregated from other funds except to the extent required by law or the terms of
this Indenture or the Sale and Servicing Agreement.
(f) No provision of this Indenture shall require the Trustee
to expend or risk its own funds or otherwise incur financial liability in the
performance of any of its duties hereunder or in the exercise of any of its
rights or powers, if it shall have reasonable grounds to believe that repayment
of such funds or indemnity reasonably satisfactory to it against such risk or
liability is not assured to it.
(g) Every provision of this Indenture relating to the
conduct or affecting the liability of or affording protection to the Trustee
shall be subject to the provisions of this Section 6.1.
(h) The Trustee shall, upon two Business Days' prior notice
to the Trustee, permit any representative of the Administrative Agent at the
expense of the Trust, during the Trustee's normal business hours, to examine all
books of account, records, reports and other papers of the Trustee relating to
the Notes, to make copies and extracts therefrom and to discuss the Trustee's
affairs and actions, as such affairs and actions relate to the Trustee's duties
with respect to the Notes, with the Trustee's officers and employees responsible
for carrying out the Trustee's duties with respect to the Notes.
(i) The Trustee shall, and hereby agrees that it will,
perform all of the obligations and duties required of it under the Sale and
Servicing Agreement.
(j) Without limiting the generality of this Section 6.1, the
Trustee shall have no duty (i) to see to any recording, filing or depositing of
this Indenture or any agreement referred to herein or any financing statement
evidencing a security interest in the Financed Vehicles, or to see to the
maintenance of any such recording or filing or depositing or to any recording,
refiling or redepositing of any thereof, (ii) to see to any insurance of the
Financed Vehicles or Obligors or to effect or maintain any such insurance, (iii)
to see to the payment or discharge of any tax, assessment or other governmental
charge or any Lien or encumbrance of any kind owing with respect to, assessed or
levied against any part of the Trust, (iv) to confirm or verify the contents of
any reports or certificates delivered to the Trustee pursuant to this Indenture
or the Sale and Servicing Agreement believed by the Trustee to be genuine and to
have been signed or presented by the proper party or parties, or (v) to inspect
the Financed Vehicles at any time or ascertain or inquire as to the performance
of observance of any of the Issuer's, each Seller's or the Servicer's
representations, warranties or covenants or the Servicer's duties and
obligations as Servicer and as custodian of the Receivable Files under the Sale
and Servicing Agreement.
(k) In no event shall Bank One, NA, in any of its capacities
hereunder, be deemed to have assumed any duties of the Owner Trustee under the
Delaware Statutory Trust Statute, common law, or the Trust Agreement.
SECTION 6.2. Rights of Trustee.
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(a) The Trustee may conclusively rely on any document
believed by it to be genuine and to have been signed or presented by the proper
person. The Trustee need not investigate any fact or matter stated in the
document.
(b) Before the Trustee acts or refrains from acting, it may
require an Officer's Certificate or an Opinion of Counsel. The Trustee shall not
be liable for any action it takes or omits to take in good faith in reliance on
the Officer's Certificate or Opinion of Counsel.
(c) The Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
agents or attorneys or a custodian or nominee, and the Trustee shall not be
responsible for any misconduct or negligence on the part of, or for the
supervision of, AmeriCredit Financial Services, Inc., or any other such agent,
attorney, custodian or nominee appointed with due care by it hereunder.
(d) The Trustee shall not be liable for any action it takes
or omits to take in good faith which it believes to be authorized or within its
rights or powers; provided, however, that the Trustee's conduct does not
constitute willful misconduct, negligence or bad faith.
(e) The Trustee may consult with counsel, and the advice or
opinion of counsel with respect to legal matters relating to this Indenture and
the Notes shall be full and complete authorization and protection from liability
in respect to any action taken, omitted or suffered by it hereunder in good
faith and in accordance with the advice or opinion of such counsel.
(f) The Trustee shall be under no obligation to institute,
conduct or defend any litigation under this Indenture or in relation to this
Indenture, at the request, order or direction of any of the Noteholders,
pursuant to the provisions of this Indenture, unless such Noteholders shall have
offered to the Trustee reasonable security or indemnity against the costs,
expenses and liabilities that may be incurred therein or thereby; provided,
however, that the Trustee shall, upon the occurrence of an Event of Default
(that has not been cured), exercise the rights and powers vested in it by this
Indenture with reasonable care and skill.
(g) The Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, approval, bond or
other paper or document, unless requested in writing to do so by the Class A
Majority, the Class B Majority, the Class C Majority, the Class D Majority or
the Class E Majority; provided, however, that if the payment within a reasonable
time to the Trustee of the costs, expenses or liabilities likely to be incurred
by it in the making of such investigation is, in the opinion of the Trustee, not
reasonably assured to the Trustee by the security afforded to it by the terms of
this Indenture or the Sale and Servicing Agreement, the Trustee may require
reasonable indemnity against such cost, expense or liability as a condition to
so proceeding; the reasonable expense of every such examination shall be paid by
the Person making such request, or, if paid by the Trustee, shall be reimbursed
by the Person making such request upon demand.
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(h) The Trustee shall not be liable for any losses on
investments except for losses resulting from the failure of the Trustee to make
an investment in accordance with instructions given in accordance hereunder. If
the Trustee acts as the Note Paying Agent or Note Registrar, the rights and
protections afforded to the Trustee shall be afforded to the Note Paying Agent
and Note Registrar.
SECTION 6.3. Individual Rights of Trustee. The Trustee in its
individual or any other capacity may become the owner or pledgee of Notes and
may otherwise deal with the Issuer or its Affiliates with the same rights it
would have if it were not Trustee. Any Note Paying Agent, Note Registrar,
co-registrar or co-Note Paying Agent may do the same with like rights. However,
the Trustee must comply with Section 6.11.
SECTION 6.4. Trustee's Disclaimer. The Trustee shall not be
responsible for and makes no representation as to the validity or adequacy of
this Indenture, the Trust Estate or the Notes, it shall not be accountable for
the Issuer's use of the proceeds from the Notes, and it shall not be responsible
for any statement of the Issuer in the Indenture or in any document issued in
connection with the sale of the Notes or in the Notes other than the Trustee's
certificate of authentication.
SECTION 6.5. Conflicting Instructions. If the Trustee shall
receive conflicting directions or instructions from the Noteholders, the Trustee
shall forward such directions or instructions to the Administrative Agent and
the Administrative Agent shall contact the Noteholders with respect to such
conflict.
SECTION 6.6. Reports by Trustee to Holders. The Trustee shall
deliver to each Noteholder such information as may be reasonably required to
enable such Holder to prepare its federal and State income tax returns.
SECTION 6.7. Compensation and Indemnity.
(a) Pursuant to Section 5.5(a) and (b) of the Sale and
Servicing Agreement, the Issuer shall, or shall cause the Servicer to, pay to
the Trustee from time to time compensation for its services. The Trustee's
compensation shall not be limited by any law on compensation of a trustee of an
express trust. The Issuer shall cause the Servicer to reimburse the Trustee and
the Trust Collateral Agent for all reasonable out-of-pocket expenses incurred or
made by it, including costs of collection, in addition to the compensation for
its services. Such expenses shall include the reasonable compensation and
expenses, disbursements and advances of the Trustee's, the Backup Servicer's,
and the Trust Collateral Agent's agents, counsel, accountants and experts. The
Issuer shall cause the Servicer to indemnify the Trustee, the Trust Collateral
Agent and their respective officers, directors, employees and agents against any
and all loss, liability or expense (including attorneys' fees and expenses)
incurred by each of them in connection with the acceptance or the administration
of this Trust and the performance of its duties hereunder. The Trustee, Trust
Collateral Agent or the Backup Servicer shall notify the Issuer and the Servicer
promptly of any claim for which it may seek indemnity. Failure by the Trustee or
Trust Collateral Agent to so notify the Issuer and the Servicer shall not
relieve the Issuer of its obligations hereunder or the Servicer of its
obligations under Article X of the Sale
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and Servicing Agreement. The Issuer shall cause the Servicer to defend the
claim, and the Trustee, Trust Collateral Agent or the Backup Servicer may have
separate counsel and the Issuer shall cause the Servicer to pay the fees and
expenses of such counsel. Neither the Issuer nor the Servicer need reimburse any
expense or indemnify against any loss, liability or expense incurred by the
Trustee or Trust Collateral Agent through the Trustee's or Trust Collateral
Agent's own willful misconduct, negligence or bad faith.
(b) The Issuer's payment obligations to the Trustee pursuant
to this Section shall survive the discharge of this Indenture or the earlier
resignation or removal of the Trustee or the Trust Collateral Agent or the
Backup Servicer. When the Trustee, the Trust Collateral Agent or the Backup
Servicer incurs expenses after the occurrence of an Event of Default specified
in Section 5.1(iii) or (iv) with respect to the Issuer, the expenses are
intended to constitute expenses of administration under Title 11 of the United
States Code or any other applicable federal or State bankruptcy, insolvency or
similar law. Notwithstanding anything else set forth in this Indenture or the
Basic Documents, the Trustee agrees that the obligations of the Issuer (but not
the Servicer) to the Trustee hereunder and under the Basic Documents shall be
recourse to the Trust Estate only and specifically shall not be recourse to the
assets of the Certificateholder or any Noteholder. In addition, the Trustee
agrees that its recourse to the Issuer, the Trust Estate and AFC shall be
limited to the right to receive the distributions referred to in Section 5.5 of
the Sale and Servicing Agreement.
SECTION 6.8. Replacement of Trustee. The Trustee may resign
at any time by so notifying the Issuer and the Administrative Agent. The Issuer
may and, at the request of the Class A Majority, the Class B Majority and of the
Class C Majority shall, remove the Trustee, if:
(i) the Trustee fails to comply with Section 6.11;
(ii) a court having jurisdiction in the premises in respect
of the Trustee in an involuntary case or proceeding under federal or
State banking or bankruptcy laws, as now or hereafter constituted, or
any other applicable federal or State bankruptcy, insolvency or other
similar law, shall have entered a decree or order granting relief or
appointing a receiver, liquidator, assignee, custodian, trustee,
conservator, sequestrator (or similar official) for the Trustee or for
any substantial part of the Trustee's property, or ordering the
winding-up or liquidation of the Trustee's affairs;
(iii) an involuntary case under the federal bankruptcy laws,
as now or hereafter in effect, or another present or future federal or
State bankruptcy, insolvency or similar law is commenced with respect to
the Trustee and such case is not dismissed within 60 days;
(iv) the Trustee commences a voluntary case under any federal
or state banking or bankruptcy laws, as now or hereafter constituted, or
any other applicable federal or State bankruptcy, insolvency or other
similar law, or consents to the appointment of or taking possession by a
receiver, liquidator, assignee, custodian, trustee, conservator,
sequestrator (or other similar official) for the Trustee or for any
substantial
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part of the Trustee's property, or makes any assignment for the benefit
of creditors or fails generally to pay its debts as such debts become
due or takes any corporate action in furtherance of any of the
foregoing; or
(v) the Trustee otherwise becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in
the office of Trustee for any reason (the Trustee in such event being referred
to herein as the retiring Trustee), the Issuer shall promptly appoint a
successor Trustee listed on Schedule 4 hereto. If the Issuer fails to appoint
such a successor Trustee, the Class A Majority, the Class B Majority and the
Class C Majority, acting together, may appoint a successor Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee, the Administrative Agent and to the Issuer.
Thereupon the resignation or removal of the retiring Trustee shall become
effective, and the successor Trustee shall have all the rights, powers and
duties of the retiring Trustee under this Indenture subject to satisfaction of
the Rating Agency Condition. The successor Trustee shall mail a notice of its
succession to Noteholders. The retiring Trustee shall promptly transfer all
property held by it as Trustee to the successor Trustee.
If a successor Trustee does not take office within 60 days after
the retiring Trustee resigns or is removed, the retiring Trustee, the Issuer or
the Holders of a majority in Outstanding Amount of the Notes may petition any
court of competent jurisdiction for the appointment of a successor Trustee.
If the Trustee fails to comply with Section 6.11, any Noteholder
may petition any court of competent jurisdiction for the removal of the Trustee
and the appointment of a successor Trustee.
Any resignation or removal of the Trustee and appointment of a
successor Trustee pursuant to any of the provisions of this Section shall not
become effective until acceptance of appointment by the successor Trustee
pursuant to this Section 6.8 and payment of all fees and expenses owed to the
outgoing Trustee.
Notwithstanding the replacement of the Trustee pursuant to this
Section, the Issuer's and the Servicer's obligations under Section 6.7 shall
continue for the benefit of the retiring Trustee.
SECTION 6.9. Successor Trustee by Merger. If the Trustee
consolidates with, merges or converts into, or transfers all or substantially
all its corporate trust business or assets to, another corporation or banking
association, the resulting, surviving or transferee corporation without any
further act shall be the successor Trustee. The Trustee shall provide the Rating
Agencies prior written notice of any such transaction.
In case at the time such successor or successors by merger,
conversion or consolidation to the Trustee shall succeed to the trusts created
by this Indenture any of the Notes
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shall have been authenticated but not delivered, any such successor to the
Trustee may adopt the certificate of authentication of any predecessor trustee,
and deliver such Notes so authenticated; and in case at that time any of the
Notes shall not have been authenticated, any successor to the Trustee may
authenticate such Notes either in the name of any predecessor hereunder or in
the name of the successor to the Trustee; and in all such cases such
certificates shall have the full force which it is anywhere in the Notes or in
this Indenture provided that the certificate of the Trustee shall have.
SECTION 6.10. Appointment of Co-Trustee or Separate Trustee.
(a) Notwithstanding any other provisions of this Indenture,
at any time, for the purpose of meeting any legal requirement of any
jurisdiction in which any part of the Trust may at the time be located, the
Trustee with the consent of the Class C Majority shall have the power and may
execute and deliver all instruments to appoint one or more Persons to act as a
co-trustee or co-trustees, or separate trustee or separate trustees, of all or
any part of the Trust, and to vest in such Person or Persons, in such capacity
and for the benefit of the Noteholders, such title to the Trust, or any part
hereof, and, subject to the other provisions of this Section, such powers,
duties, obligations, rights and trusts as the Trustee may consider necessary or
desirable. No co-trustee or separate trustee hereunder shall be required to meet
the terms of eligibility as a successor trustee under Section 6.11 and no notice
to Noteholders of the appointment of any co-trustee or separate trustee shall be
required under Section 6.8 hereof.
(b) Every separate trustee and co-trustee shall, to the
extent permitted by law, be appointed and act subject to the following
provisions and conditions:
(i) all rights, powers, duties and obligations conferred or
imposed upon the Trustee shall be conferred or imposed upon and
exercised or performed by the Trustee and such separate trustee or
co-trustee jointly (it being understood that such separate trustee or
co-trustee is not authorized to act separately without the Trustee
joining in such act), except to the extent that under any law of any
jurisdiction in which any particular act or acts are to be performed the
Trustee shall be incompetent or unqualified to perform such act or acts,
in which event such rights, powers, duties and obligations (including
the holding of title to the Trust or any portion thereof in any such
jurisdiction) shall be exercised and performed singly by such separate
trustee or co-trustee, but solely at the direction of the Trustee;
(ii) no trustee hereunder shall be personally liable by
reason of any act or omission of any other trustee hereunder, including
acts or omissions of predecessor or successor trustees; and
(iii) the Trustee may at any time accept the resignation of or
remove any separate trustee or co-trustee.
(c) Any notice, request or other writing given to the
Trustee shall be deemed to have been given to each of the then separate trustees
and co-trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee or co-trustee shall refer to this
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Agreement and the conditions of this Article VI. Each separate trustee and
co-trustee, upon its acceptance of the trusts conferred, shall be vested with
the estates or property specified in its instrument of appointment, either
jointly with the Trustee or separately, as may be provided therein, subject to
all the provisions of this Indenture, specifically including every provision of
this Indenture relating to the conduct of, affecting the liability of, or
affording protection to, the Trustee. Every such instrument shall be filed with
the Trustee.
(d) Any separate trustee or co-trustee may at any time
constitute the Trustee, its agent or attorney-in-fact with full power and
authority, to the extent not prohibited by law, to do any lawful act under or in
respect of this Agreement on its behalf and in its name. If any separate trustee
or co-trustee shall die, dissolve, become insolvent, become incapable of acting,
resign or be removed, all of its estates, properties, rights, remedies and
trusts shall invest in and be exercised by the Trustee, to the extent permitted
by law, without the appointment of a new or successor trustee.
(e) Any and all amounts relating to the fees and expenses of
the co-trustee or separate trustee will be borne by the Trust Estate.
SECTION 6.11. Eligibility; Disqualification. The Trustee shall
have a combined capital and surplus of at least $50,000,000 as set forth in its
most recent published annual report of condition and it shall have a long term
debt rating of BBB-, or an equivalent rating, or better by the Rating Agencies.
The Trustee shall provide copies of such reports to the Administrative Agent
upon request.
SECTION 6.12. Appointment and Powers. Subject to the terms and
conditions hereof, each of the Noteholders hereby appoints Bank One, NA as the
Trust Collateral Agent with respect to the Collateral, and Bank One, NA hereby
accepts such appointment and agrees to act as Trust Collateral Agent with
respect to the Collateral for the Noteholders, to maintain custody and
possession of such Collateral (except as otherwise provided hereunder) and to
perform the other duties of the Trust Collateral Agent in accordance with the
provisions of this Indenture and the other Basic Documents. Each Noteholder
hereby authorizes the Trust Collateral Agent to take such action on its behalf,
and to exercise such rights, remedies, powers and privileges hereunder, as the
Trustee may direct and as are specifically authorized to be exercised by the
Trust Collateral Agent by the terms hereof, together with such actions, rights,
remedies, powers and privileges as are reasonably incidental thereto, including,
but not limited to, the execution of any powers of attorney. The Trust
Collateral Agent shall act upon and in compliance with the written instructions
of the Trustee delivered pursuant to this Indenture promptly following receipt
of such written instructions; provided that the Trust Collateral Agent shall not
act in accordance with any instructions (i) which are not authorized by, or in
violation of the provisions of, this Indenture, (ii) which are in violation of
any applicable law, rule or regulation or (iii) for which the Trust Collateral
Agent has not received reasonable indemnity. Receipt of such instructions shall
not be a condition to the exercise by the Trust Collateral Agent of its express
duties hereunder, except where this Indenture provides that the Trust Collateral
Agent is permitted to act only following and in accordance with such
instructions.
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SECTION 6.13. Performance of Duties. The Trust Collateral
Agent shall have no duties or responsibilities except those expressly set forth
in this Indenture and the other Basic Documents to which the Trust Collateral
Agent is a party or as directed by the Trustee in accordance with this
Indenture. The Trust Collateral Agent shall not be required to take any
discretionary actions hereunder except at the written direction and with the
indemnification of the Trustee. The Trust Collateral Agent shall, and hereby
agrees that it will, subject to this Article, perform all of the duties and
obligations required of it under the Sale and Servicing Agreement.
SECTION 6.14. Limitation on Liability. Neither the Trust
Collateral Agent nor any of its directors, officers or employees shall be liable
for any action taken or omitted to be taken by it or them hereunder, or in
connection herewith, except that the Trust Collateral Agent shall be liable for
its negligence, bad faith or willful misconduct; nor shall the Trust Collateral
Agent be responsible for the validity, effectiveness, value, sufficiency or
enforceability against the Issuer of this Indenture or any of the Collateral (or
any part thereof). Notwithstanding any term or provision of this Indenture, the
Trust Collateral Agent shall incur no liability to the Issuer or the Noteholders
for any action taken or omitted by the Trust Collateral Agent in connection with
the Collateral, except for the negligence, bad faith or willful misconduct on
the part of the Trust Collateral Agent, and, further, shall incur no liability
to the Noteholders except for negligence, bad faith or willful misconduct in
carrying out its duties to the Noteholders. The Trust Collateral Agent shall be
protected and shall incur no liability to any such party in relying upon the
accuracy, acting in reliance upon the contents, and assuming the genuineness of
any notice, demand, certificate, signature, instrument or other document
reasonably believed by the Trust Collateral Agent to be genuine and to have been
duly executed by the appropriate signatory, and (absent actual knowledge to the
contrary by a Responsible Officer of the Trust Collateral Agent) the Trust
Collateral Agent shall not be required to make any independent investigation
with respect thereto. The Trust Collateral Agent shall at all times be free
independently to establish to its reasonable satisfaction, but shall have no
duty to independently verify, the existence or nonexistence of facts that are a
condition to the exercise or enforcement of any right or remedy hereunder or
under any of the Basic Documents. The Trust Collateral Agent may consult with
counsel, and shall not be liable for any action taken or omitted to be taken by
it hereunder in good faith and in accordance with the advice of such counsel.
The Trust Collateral Agent shall not be under any obligation to exercise any of
the remedial rights or powers vested in it by this Indenture or to follow any
direction from the Trustee or risk its own funds or otherwise incur financial
liability in the performance of any of its duties hereunder unless it shall have
received reasonable security or indemnity satisfactory to the Trust Collateral
Agent against the costs, expenses and liabilities which might be incurred by it.
SECTION 6.15. Reliance Upon Documents. In the absence of
negligence, bad faith or willful misconduct on its part, the Trust Collateral
Agent shall be entitled to conclusively rely on any communication, instrument,
paper or other document reasonably believed by it to be genuine and correct and
to have been signed or sent by the proper Person or Persons and shall have no
liability in acting, or omitting to act, where such action or omission to act is
in reasonable reliance upon any statement or opinion contained in any such
document or instrument.
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SECTION 6.16. Successor Trust Collateral Agent.
(a) Merger. Any Person into which the Trust Collateral Agent
may be converted or merged, or with which it may be consolidated, or to which it
may sell or transfer its trust business and assets as a whole or substantially
as a whole, or any Person resulting from any such conversion, merger,
consolidation, sale or transfer to which the Trust Collateral Agent is a party,
shall (provided it is otherwise qualified to serve as the Trust Collateral Agent
hereunder) be and become a successor Trust Collateral Agent hereunder and be
vested with all of the title to and interest in the Collateral and all of the
trusts, powers, discretions, immunities, privileges and other matters as was its
predecessor without the execution or filing of any instrument or any further
act, deed or conveyance on the part of any of the parties hereto, anything
herein to the contrary notwithstanding, except to the extent, if any, that any
such action is necessary to perfect, or continue the perfection of, the security
interest of the Noteholders in the Collateral; provided that any such successor
shall also be the successor Trustee under Section 6.9.
(b) Resignation. The Trust Collateral Agent and any
successor Trust Collateral Agent may resign at any time by so notifying the
Issuer and the Administrative Agent; provided that the Trust Collateral Agent
shall not so resign unless it shall also resign as Trustee hereunder.
(c) Removal. The Trust Collateral Agent may be removed by
the Trustee at any time (and should be removed at any time that the Trustee has
been removed), with or without cause, by an instrument or concurrent instruments
in writing delivered to the Trust Collateral Agent, the Administrative Agent and
the Issuer. A temporary successor may be removed at any time to allow a
successor Trust Collateral Agent to be appointed pursuant to subsection (d)
below. Any removal pursuant to the provisions of this subsection (c) shall take
effect only upon the date which is the latest of (i) the effective date of the
appointment of a successor Trust Collateral Agent and the acceptance in writing
by such successor Trust Collateral Agent of such appointment and of its
obligation to perform its duties hereunder in accordance with the provisions
hereof, and (ii) receipt by the Trustee of an Opinion of Counsel to the effect
described in Section 3.6.
(d) Acceptance by Successor. The Trustee shall have the sole
right to appoint each successor Trust Collateral Agent. Every temporary or
permanent successor Trust Collateral Agent appointed hereunder shall execute,
acknowledge and deliver to its predecessor and to the Trustee, each Noteholder
and the Issuer an instrument in writing accepting such appointment hereunder and
the relevant predecessor shall execute, acknowledge and deliver such other
documents and instruments as will effectuate the delivery of all Collateral to
the successor Trust Collateral Agent, whereupon such successor, without any
further act, deed or conveyance, shall become fully vested with all the estates,
properties, rights, powers, duties and obligations of its predecessor. Such
predecessor shall, nevertheless, on the written request of any Agent or the
Issuer, execute and deliver an instrument transferring to such successor all the
estates, properties, rights and powers of such predecessor hereunder. In the
event that any instrument in writing from the Issuer or the Trustee is
reasonably required by a successor Trust Collateral Agent to more fully and
certainly vest in such successor the estates, properties, rights, powers, duties
and obligations vested or intended to be vested hereunder in the Trust
Collateral Agent, any and all
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such written instruments shall, at the request of the temporary or permanent
successor Trust Collateral Agent, be forthwith executed, acknowledged and
delivered by the Trustee or the Issuer, as the case may be. The designation of
any successor Trust Collateral Agent and the instrument or instruments removing
any Trust Collateral Agent and appointing a successor hereunder, together with
all other instruments provided for herein, shall be maintained with the records
relating to the Collateral and, to the extent required by applicable law, filed
or recorded by the successor Trust Collateral Agent in each place where such
filing or recording is necessary to effect the transfer of the Collateral to the
successor Trust Collateral Agent or to protect or continue the perfection of the
security interests granted hereunder.
SECTION 6.17. Compensation. The Trust Collateral Agent shall
not be entitled to any compensation for the performance of its duties hereunder
other than the compensation it is entitled to receive in its capacity as
Trustee.
SECTION 6.18. Representations and Warranties of the Trust
Collateral Agent and the Issuer. (A) The Trust Collateral Agent represents and
warrants to the Issuer and to each Noteholder as follows:
(a) Due Organization. The Trust Collateral Agent is a
national banking association and is duly authorized and licensed under
applicable law to conduct its business as presently conducted.
(b) Corporate Power. The Trust Collateral Agent has all
requisite right, power and authority to execute and deliver this Indenture and
to perform all of its duties as Trust Collateral Agent hereunder.
(c) Due Authorization. The execution and delivery by the
Trust Collateral Agent of this Indenture and the other Transaction Documents to
which it is a party, and the performance by the Trust Collateral Agent of its
duties hereunder and thereunder, have been duly authorized by all necessary
corporate proceedings and no further approvals or filings, including any
governmental approvals, are required for the valid execution and delivery by the
Trust Collateral Agent, or the performance by the Trust Collateral Agent, of
this Indenture and such other Basic Documents.
(d) Valid and Binding Indenture. The Trust Collateral Agent
has duly executed and delivered this Indenture and each other Basic Document to
which it is a party, and each of this Indenture and each such other Basic
Document constitutes the legal, valid and binding obligation of the Trust
Collateral Agent, enforceable against the Trust Collateral Agent in accordance
with its terms, except as (i) such enforceability may be limited by bankruptcy,
insolvency, reorganization and similar laws relating to or affecting the
enforcement of creditors' rights generally and (ii) the availability of
equitable remedies may be limited by equitable principles of general
applicability.
(B) The Issuer hereby represents and warrants that each of the
representations and warranties set forth on the Schedule of Representations
attached hereto as Annex B is true and correct. Such representations and
warranties speak as of the execution and delivery of this
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Indenture and as of the Closing Date, but shall survive the pledge of the
Receivables to the Trust Collateral Agent and shall not be waived.
SECTION 6.19. Waiver of Setoffs. The Trust Collateral Agent
hereby expressly waives any and all rights of setoff that the Trust Collateral
Agent may otherwise at any time have under applicable law with respect to any
Trust Account and agrees that amounts in the Trust Accounts shall at all times
be held and applied solely in accordance with the provisions hereof.
SECTION 6.20. Control by the Trustee. The Trust Collateral
Agent shall comply with notices and instructions given by the Issuer only if
accompanied by the written consent of the Trustee, except that if any Event of
Default shall have occurred and be continuing, the Trust Collateral Agent shall
act upon and comply with notices and instructions given by the Trustee alone in
the place and stead of the Issuer.
ARTICLE VII.
Noteholders' Lists and Reports
SECTION 7.1. Issuer To Furnish To Trustee Names and Addresses
of Noteholders. The Issuer will furnish or cause to be furnished to the Trustee
(a) not more than five days after the earlier of (i) each Record Date and (ii)
three months after the last Record Date, a list, in such form as the Trustee may
reasonably require, of the names and addresses of the Holders as of such Record
Date, (b) at such other times as the Trustee may request in writing, within 30
days after receipt by the Issuer of any such request, a list of similar form and
content as of a date not more than 10 days prior to the time such list is
furnished; provided, however, that so long as the Trustee is the Note Registrar,
no such list shall be required to be furnished. The Trustee or, if the Trustee
is not the Note Registrar, the Issuer shall furnish to the Administrative Agent
in writing on an annual basis on each June 30 and at such other times as the
Administrative Agent may request a copy of the list.
SECTION 7.2. Preservation of Information. The Trustee shall
preserve, in as current a form as is reasonably practicable, the names and
addresses of the Holders contained in the most recent list furnished to the
Trustee as provided in Section 7.1 and the names and addresses of Holders
received by the Trustee in its capacity as Note Registrar. The Trustee may
destroy any list furnished to it as provided in such Section 7.1 upon receipt of
a new list so furnished.
ARTICLE VIII.
Accounts, Disbursements and Releases
SECTION 8.1. Collection of Money. Except as otherwise
expressly provided herein, the Trustee may demand payment or delivery of, and
shall receive and collect, directly and without intervention or assistance of
any fiscal agent or other intermediary, all money and other property payable to
or receivable by the Trust Collateral Agent pursuant to this
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Indenture and the Sale and Servicing Agreement. The Trustee shall apply all such
money received by it, or cause the Trust Collateral Agent to apply all money
received by it as provided in this Indenture and the Sale and Servicing
Agreement. Except as otherwise expressly provided in this Indenture or in the
Sale and Servicing Agreement, if any default occurs in the making of any payment
or performance under any agreement or instrument that is part of the Trust
Estate, the Trustee may take such action as may be appropriate to enforce such
payment or performance, including the institution and prosecution of appropriate
proceedings. Any such action shall be without prejudice to any right to claim a
Default or Event of Default under this Indenture and any right to proceed
thereafter as provided in Article V.
SECTION 8.2. Release of Trust Estate.
(a) Subject to the payment of its fees and expenses and
other amounts pursuant to Section 6.7, the Trust Collateral Agent may, and when
required by the provisions of this Indenture shall, execute instruments to
release property from the lien of this Indenture, in a manner and under
circumstances that are not inconsistent with the provisions of this Indenture.
No party relying upon an instrument executed by the Trust Collateral Agent as
provided in this Article VIII shall be bound to ascertain the Trust Collateral
Agent's authority, inquire into the satisfaction of any conditions precedent or
see to the application of any moneys.
(b) The Trust Collateral Agent shall, at such time as there
are no Notes outstanding and all sums due the Trustee pursuant to Section 6.7
have been paid, release any remaining portion of the Trust Estate that secured
the Notes from the lien of this Indenture and release to the Issuer or any other
Person entitled thereto any funds then on deposit in the Trust Accounts. The
Trustee shall release property from the lien of this Indenture pursuant to this
Section 8.2(b) only upon receipt of an Issuer Request accompanied by an
Officer's Certificate and an Opinion of Counsel.
SECTION 8.3. Opinion of Counsel. The Trust Collateral Agent
shall receive at least seven days' notice when requested by the Issuer to take
any action pursuant to Section 8.2(a), accompanied by copies of any instruments
involved, and the Trustee shall also require as a condition to such action, an
Opinion of Counsel in form and substance satisfactory to the Trustee, stating
the legal effect of any such action, outlining the steps required to complete
the same, and concluding that all conditions precedent to the taking of such
action have been complied with and such action will not materially and adversely
impair the security for the Notes or the rights of the Noteholders in
contravention of the provisions of this Indenture; provided, however, that such
Opinion of Counsel shall not be required to express an opinion as to the fair
value of the Trust Estate. Counsel rendering any such opinion may rely, without
independent investigation, on the accuracy and validity of any certificate or
other instrument delivered to the Trustee in connection with any such action.
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ARTICLE IX.
Supplemental Indentures
SECTION 9.1. Supplemental Indentures Without Consent of
Noteholders. Without the consent of the Holders of any other Notes and with
prior notice to the Rating Agencies by the Issuer, as evidenced to the Trustee,
the Issuer and the Trustee, when authorized by an Issuer Order, at any time and
from time to time, may enter into one or more indentures supplemental hereto, in
form satisfactory to the Trustee, to increase the Class A Credit Score
Enhancement Rate, the Class B Credit Score Enhancement Rate or the Class C
Credit Score Enhancement Rate.
SECTION 9.2. Supplemental Indentures with Consent of
Noteholders.
The Issuer and the Trustee, when authorized by an Issuer Order,
may, with prior notice to the Rating Agencies and with the consent of the Class
A Majority, the Class B Majority and the Class C Majority, acting together, by
Act of such Holders delivered to the Issuer and the Trustee, at any time and
from time to time, enter into an indenture or indentures supplemental hereto for
the purpose of adding any provisions to, or changing in any manner or
eliminating any of the provisions of, this Indenture or of modifying in any
manner the rights of the Holders of the Notes under this Indenture; provided,
however, that, no such supplemental indenture shall, without the consent of the
Holder of each Outstanding Note affected thereby:
(i) change the date of payment of any installment of
principal of or interest on any Note, or reduce the principal amount
thereof, the interest rate thereon or the Redemption Price with respect
thereto, change the provision of this Indenture relating to the
application of collections on, or the proceeds of the sale of, the Trust
Estate to payment of principal of or interest on the Notes, or change
any place of payment where, or the coin or currency in which, any Note
or the interest thereon is payable;
(ii) impair the right to institute suit for the enforcement
of the provisions of this Indenture requiring the application of funds
available therefor, as provided in Article V, to the payment of any such
amount due on the Notes on or after the respective due dates thereof
(or, in the case of redemption, on or after the Redemption Date);
(iii) reduce the percentage of the Outstanding Amount of the
Notes, the consent of the Holders of which is required for any such
supplemental indenture, or the consent of the Holders of which is
required for any waiver of compliance with certain provisions of this
Indenture or certain defaults hereunder and their consequences provided
for in this Indenture;
(iv) modify or alter the provisions of the proviso to the
definition of the term "Outstanding";
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(v) reduce the percentage of the Outstanding Amount of the
Notes required to direct the Trustee to direct the Issuer to sell or
liquidate the Trust Estate pursuant to Section 5.4;
(vi) modify any provision of this Section except to increase
any percentage specified herein or to provide that certain additional
provisions of this Indenture or the Basic Documents cannot be modified
or waived without the consent of the Holder of each Outstanding Note
affected thereby;
(vii) modify any of the provisions of this Indenture in such
manner as to affect the calculation of the amount of any payment of
interest or principal due on any Note on any Distribution Date
(including the calculation of any of the individual components of such
calculation) or to affect the rights of the Noteholders to the benefit
of any provisions for the mandatory redemption of the Notes contained
herein;
(viii) permit the creation of any lien ranking prior to or on a
parity with the lien of this Indenture with respect to any part of the
Trust Estate or, except as otherwise permitted or contemplated herein or
in any of the Basic Documents, terminate the lien of this Indenture on
any property at any time subject hereto or deprive the Holder of any
Note of the security provided by the lien of this Indenture; or
(ix) decrease the Class A Credit Score Enhancement Rate, the
Class B Credit Score Enhancement Rate or the Class C Credit Score
Enhancement Rate or modify the definition of Class A Required Note
Enhancement, Class A Borrowing Base, Class B Required Note Enhancement,
Class B Borrowing Base, Class C Required Note Enhancement or Class C
Borrowing Base;
provided, further, however, that no such supplemental indenture shall, without
the consent of the Holder of each Outstanding Class S Note, amend Section
12.6(b); and provided, further, however, that no such supplemental indenture
shall, without the consent of the Administrative Agent, amend Article XI.
It shall not be necessary for any Act of Noteholders under this
Section to approve the particular form of any proposed supplemental indenture,
but it shall be sufficient if such Act shall approve the substance thereof.
No such amendment, supplement, waiver or modification which
would have a material, adverse effect on the Noteholders shall be effective
unless the Rating Agency Condition shall have been satisfied; it being
understood that amendments, supplements, waivers and modifications which do any
of the following shall not require satisfaction of the Rating Agency Condition:
(A) correct or amplify the description of any property at any
time subject to the lien of this Indenture, or better to assure, convey
and confirm unto the Trust Collateral Agent any property subject or
required to be subjected to the lien of this Indenture, or to subject to
the lien of this Indenture additional property;
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(B) evidence the succession, in compliance with the applicable
provisions hereof, of another person to the Issuer, and the assumption
by any such successor of the covenants of the Issuer herein and in the
Notes contained;
(C) add to the covenants of the Issuer, for the benefit of the
Holders of the Notes, or to surrender any right or power herein
conferred upon the Issuer;
(D) convey, transfer, assign, mortgage or pledge any property to
or with the Trust Collateral Agent;
(E) cure any ambiguity, to correct or supplement any provision
herein or in any supplemental indenture which may be inconsistent with
any other provision herein or in any supplemental indenture or to make
any other provisions with respect to matters or questions arising under
this Indenture or in any supplemental indenture; provided that such
action shall not adversely affect the interests of the Holders of the
Notes; or
(F) evidence and provide for the acceptance of the appointment
hereunder by a successor trustee with respect to the Notes and to add to
or change any of the provisions of this Indenture as shall be necessary
to facilitate the administration of the trusts hereunder by more than
one trustee, pursuant to the requirements of Article VI.
Promptly after the execution by the Issuer and the Trustee of
any supplemental indenture pursuant to this Section, the Trustee shall mail to
the Holders of the Notes to which such amendment or supplemental indenture
relates a notice setting forth in general terms the substance of such
supplemental indenture. Any failure of the Trustee to mail such notice, or any
defect therein, shall not, however, in any way impair or affect the validity of
any such supplemental indenture.
SECTION 9.3. Execution of Supplemental Indentures. In
executing, or permitting the additional trusts created by, any supplemental
indenture permitted by this Article IX or the amendments or modifications
thereby of the trusts created by this Indenture, the Trustee shall be entitled
to receive, shall be fully protected in relying upon, an Opinion of Counsel
stating that the execution of such supplemental indenture is authorized or
permitted by this Indenture. The Trustee may, but shall not be obligated to,
enter into any such supplemental indenture that affects the Trustee's own
rights, duties, liabilities or immunities under this Indenture or otherwise.
SECTION 9.4. Effect of Supplemental Indenture. Upon the
execution of any supplemental indenture pursuant to the provisions hereof, this
Indenture shall be and be deemed to be modified and amended in accordance
therewith with respect to the Notes affected thereby, and the respective rights,
limitations of rights, obligations, duties, liabilities and immunities under
this Indenture of the Trustee, the Issuer and the Holders of the Notes shall
thereafter be determined, exercised and enforced hereunder subject in all
respects to such modifications and amendments, and all the terms and conditions
of any such supplemental indenture shall be and be deemed to be part of the
terms and conditions of this Indenture for any and all purposes.
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SECTION 9.5. Reference in Notes to Supplemental Indentures.
Notes authenticated and delivered after the execution of any supplemental
indenture pursuant to this Article IX may, and if required by the Trustee shall,
bear a notation in form approved by the Trustee as to any matter provided for in
such supplemental indenture. If the Issuer or the Trustee shall so determine,
new Notes so modified as to conform, in the opinion of the Trustee and the
Issuer, to any such supplemental indenture may be prepared and executed by the
Issuer and authenticated and delivered by the Trustee in exchange for
Outstanding Notes.
ARTICLE X.
Redemption of Notes
SECTION 10.1. Redemption.
(a) The Notes are subject to redemption in whole, but not in
part, at the direction of the Servicer or the Sellers pursuant to Section 9.1(a)
of the Sale and Servicing Agreement, on any Distribution Date on which the
Servicer or a Seller exercises its option to purchase the Trust Estate pursuant
to said Section 9.1(a), for a purchase price equal to the Redemption Price;
provided, however, that the Issuer has available funds sufficient to pay the
Redemption Price. The Servicer or the Issuer shall furnish the Administrative
Agent and the Rating Agencies notice of such redemption. If the Notes are to be
redeemed pursuant to this Section 10.1(a), the Servicer or the Issuer shall
furnish notice of such election to the Trustee not later than 25 days prior to
the Redemption Date and the Issuer shall deposit with the Trustee in the
Collection Account the Redemption Price of the Notes to be redeemed whereupon
all such Notes shall be due and payable on the Redemption Date upon the
furnishing of a notice complying with Section 10.2 to each Holder of Notes.
(b) In the event that the assets of the Trust are
distributed pursuant to Section 8.1 of the Trust Agreement, all amounts on
deposit in the Collection Account shall be paid to the Noteholders up to the
Outstanding Amount of the Notes and all accrued and unpaid interest thereon and
all other amounts accrued and unpaid with respect thereto, including, without
limitation, Class A-1 Monthly Costs and Expenses, Class A-2 Monthly Costs and
Expenses, Class B Monthly Costs and Expenses, Class C Monthly Costs and Expenses
and Class S Monthly Costs and Expenses. If amounts are to be paid to Noteholders
pursuant to this Section 10.1(b), the Servicer or the Issuer shall, to the
extent practicable, furnish notice of such event to the Trustee not later than
45 days prior to the Redemption Date whereupon all such amounts shall be payable
on the Redemption Date.
SECTION 10.2. Form of Redemption Notice.
(a) Notice of redemption under Section 10.1(a) shall be
given by the Trustee by facsimile or by first-class mail, postage prepaid,
transmitted or mailed prior to the applicable Redemption Date to each Holder of
Notes, as of the close of business on the Record Date preceding the applicable
Redemption Date, at such Holder's address appearing in the Note Register.
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All notices of redemption shall state:
(i) the Redemption Date;
(ii) the Redemption Price;
(iii) that the Record Date otherwise applicable to such
Redemption Date is not applicable and that payments shall be made only
upon presentation and surrender of such Notes and the place where such
Notes are to be surrendered for payment of the Redemption Price (which
shall be the office or agency of the Issuer to be maintained as provided
in Section 3.2); and
(iv) that interest on the Notes shall cease to accrue on the
Redemption Date.
Notice of redemption of the Notes shall be given by the Trustee
in the name and at the expense of the Issuer. Failure to give notice of
redemption, or any defect therein, to any Holder of any Note shall not impair or
affect the validity of the redemption of any other Note.
(b) Prior notice of redemption under Section 10.1(b) is not
required to be given to Noteholders.
SECTION 10.3. Notes Payable on Redemption Date. The Notes to
be redeemed shall, following notice of redemption as required by Section 10.2
(in the case of redemption pursuant to Section 10.1(a)), on the Redemption Date
become due and payable at the Redemption Price and (unless the Issuer shall
default in the payment of the Redemption Price) no interest shall accrue on the
Redemption Price for any period after the date to which accrued interest is
calculated for purposes of calculating the Redemption Price.
SECTION 10.4. Limited Amortization. The Issuer may from time
to time, in its sole discretion, unless an Event of Default shall have occurred
prior thereto, cause a Limited Amortization Period to commence for one or more
Collection Periods by delivering to the Servicer, each Agent, the Administrative
Agent and the Indenture Trustee an irrevocable written notice by 3:00 p.m. (New
York City time) on the Business Day preceding the first day of the Collection
Period in which such Limited Amortization Period is scheduled to commence, which
notice shall specify the aggregate amount of the decrease in the Class A
Principal Balance (the "Class A Limited Amortization Amount"), the decrease in
the Class B Principal Balance (the "Class B Limited Amortization Amount") and/or
the decrease in the Class C Principal Balance (the "Class C Limited Amortization
Amount"), for such Limited Amortization Period.
ARTICLE XI.
THE ADMINISTRATIVE AGENT
SECTION 11.1. Appointment. By its acceptance of its Note, each
Noteholder hereby irrevocably designates and appoints the Administrative Agent
as the Administrative Agent of such Noteholder under the Basic Documents, and
each such Noteholder irrevocably
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authorizes the Administrative Agent, as the Administrative Agent for such
Noteholder, to take such action on its behalf under the provisions of the Basic
Documents and to exercise such powers and perform such duties thereunder as are
expressly delegated to the Administrative Agent by the terms of the Basic
Documents, together with such other powers as are reasonably incidental thereto.
Notwithstanding any provision to the contrary elsewhere in this Indenture or any
other Basic Document, the Administrative Agent shall not have any duties or
responsibilities, except those expressly set forth herein, or any fiduciary
relationship with any Noteholder, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this
Indenture or any other Basic Document or otherwise exist against the
Administrative Agent.
SECTION 11.2. Delegation of Duties. The Administrative Agent
may execute any of its duties under any of the Basic Documents by or through
agents or attorneys-in-fact and shall be entitled to advice of counsel
concerning all matters pertaining to such duties. The Administrative Agent shall
not be responsible for the negligence or misconduct of any agents or
attorneys-in-fact selected by it with reasonable care.
SECTION 11.3. Exculpatory Provisions. Neither the
Administrative Agent nor any of its officers, directors, employees, agents,
attorneys-in-fact or Affiliates shall be (a) liable to any of the Noteholders
for any action lawfully taken or omitted to be taken by it or such Person under
or in connection with any of the Basic Documents (except for its or such
Person's own gross negligence or willful misconduct) or (b) responsible in any
manner to any of the Noteholders for any recitals, statements, representations
or warranties made by AFC, either Seller, the Issuer, AmeriCredit, the Servicer,
the Trust Collateral Agent, the Backup Servicer, or the Trustee or any officer
thereof contained in any of the Basic Documents or in any certificate, report,
statement or other document referred to or provided for in, or received by a
Administrative Agent under or in connection with, any of the Basic Documents or
for the value, validity, effectiveness, genuineness, enforceability or
sufficiency of this Indenture or any of the other Basic Documents or for any
failure of AFC, either Seller, the Issuer, AmeriCredit, the Servicer, the Trust
Collateral Agent, the Backup Servicer, or the Trustee to perform its obligations
hereunder or thereunder. The Administrative Agent shall not be under any
obligation to any Noteholder to ascertain or to inquire as to the observance or
performance of any of the agreements contained in, or conditions of, any of the
basic Documents, or to inspect the properties, books or records of AFC, either
Seller, the Issuer, AmeriCredit, the Servicer, the Trust Collateral Agent, the
Backup Servicer, or the Trustee.
SECTION 11.4. Reliance by Administrative Agent. The
Administrative Agent shall be entitled to rely, and shall be fully protected in
relying, upon any writing, resolution, notice, consent, certificate, affidavit,
letter, cablegram, telegram, telecopy, telex or teletype message, written
statement, order or other document or conversation believed by it to be genuine
and correct and to have been signed, sent or made by the proper Person or
Persons and upon advice and statements of legal counsel (including counsel to
the Administrative Agent), independent accountants and other experts selected by
the Administrative Agent. The Administrative Agent shall be fully justified in
failing or refusing to take any action under any of the Basic Documents unless
it shall first receive such advice or concurrence of such of the Noteholders, as
specified in the related Basic Document, or otherwise as it deems appropriate,
or
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it shall first be indemnified to its satisfaction by some or all of the
Noteholders against any and all liability and expense which may be incurred by
it by reason of taking or continuing to take any such action.
SECTION 11.5. Notices. The Administrative Agent shall not be
deemed to have knowledge or notice of the occurrence of any breach of any Basic
Document or the occurrence of any Event of Default unless the Administrative
Agent has received notice from the Servicer, the Trustee or any Noteholder,
referring to this Indenture and describing such event. In the event that the
Administrative Agent receives such a notice, it shall promptly give notice
thereof to each Agent.
SECTION 11.6. Non-Reliance on Administrative Agent and Other
Noteholders. By its acceptance of a Note, each Noteholder expressly acknowledges
that neither the Administrative 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 the Administrative Agent hereafter taken,
including any review of the affairs of AFC, either Seller, the Issuer,
AmeriCredit, the Servicer, the Trust Collateral Agent, the Backup Servicer or
the Trustee, shall be deemed to constitute any representation or warranty by the
Administrative Agent to any Noteholder. By its acceptance of a Note, each
Noteholder represents to the Administrative Agent that it has, independently and
without reliance upon the Administrative Agent or any other Noteholder, and
based on such documents and information as it has deemed appropriate, made its
own appraisal of and investigation into the business, operations, property,
financial and other condition and creditworthiness of AFC, the Sellers, the
Issuer, AmeriCredit, the Servicer, the Trust Collateral Agent, the Backup
Servicer, the Trustee, and the Receivables and made its own decision to purchase
its interest in the Notes. Each Noteholder also represents that it will,
independently and without reliance upon the Administrative Agent or any other
Noteholder, 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 Basic Documents, and
to make such investigation as it deems necessary to inform itself as to the
business, operations, property, financial and other condition and
creditworthiness of AFC, the Sellers, the Issuer, AmeriCredit, the Servicer, the
Trust Collateral Agent, the Backup Servicer, the Trustee, and the Receivables.
Except for notices, reports and other documents received by the Administrative
Agent under Section 5 of the Note Purchase Agreements, the Administrative Agent
shall not have any duty or responsibility to provide any Noteholder with any
credit or other information concerning the business, operations, property,
condition (financial or otherwise), prospects or creditworthiness of AFC, the
Sellers, the Issuer, AmeriCredit, the Servicer, the Trust Collateral Agent, the
Backup Servicer, the Trustee, and the Receivables which may come into the
possession of the Administrative Agent or any of its officers, directors,
employees, agents, attorneys-in-fact or Affiliates.
SECTION 11.7. Indemnification. The Noteholders (other than CP
Conduits (as defined in each Note Purchase Agreement)) and, with respect to CP
Conduits which are also Committed Purchasers, the related Agents, agree to
indemnify the Administrative Agent in its capacity as such (without limiting the
obligation (if any) of AFC, either Seller, the Issuer, AmeriCredit or the
Servicer to reimburse the Administrative Agent for any such amounts), ratably
according to the outstanding principal balances of their Notes from and against
any and
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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
Indenture) be imposed on, incurred by or asserted against the Administrative
Agent in any way relating to or arising out of this Agreement, or any documents
contemplated by or referred to herein or the transactions contemplated hereby or
any action taken or omitted by the Administrative Agent under or in connection
with any of the foregoing; provided that no such Noteholder or Agent 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 resulting from its own gross negligence or willful
misconduct or bad faith. The agreements in this subsection shall survive the
payment of the obligations under this Agreement.
SECTION 11.8. Administrative Agent in its Individual Capacity.
The Administrative Agent and its Affiliates may make loans to, accept deposits
from, act as underwriter for and generally engage in any kind of business with
AFC, either Seller, the Issuer, AmeriCredit, the Servicer, the Trust Collateral
Agent, the Backup Servicer, or the Trustee as though the Administrative Agent
were not an agent hereunder. In addition, the Noteholders acknowledge that the
Administrative Agent may act (i) as administrator, sponsor or agent for one or
more CP Conduits and in such capacity acts and may continue to act on behalf of
each such CP Conduit in connection with its business, and (ii) as the agent for
certain financial institutions under the liquidity and credit enhancement
agreements relating to this Indenture to which any one or more CP Conduits is
party and in various other capacities relating to the business of any such CP
Conduit under various agreements. The Administrative Agent, shall not, by virtue
of its acting in any such other capacities, be deemed to have duties or
responsibilities hereunder or be held to a standard of care in connection with
the performance of its duties as Administrative Agent other than as expressly
provided in this Indenture. Any Person which is Administrative Agent may act as
Administrative Agent without regard to and without additional duties or
liabilities arising from its role as such administrator or agent or arising from
its acting in any such other capacity.
SECTION 11.9. Successor Administrative Agent. The
Administrative Agent may resign as Administrative Agent upon ten days' notice to
the Agents, the Trustee and the Servicer with such resignation becoming
effective upon a successor agent succeeding to the rights, powers and duties of
the Administrative Agent pursuant to this Section 11.9. If the Administrative
Agent shall resign as Administrative Agent under this Agreement, then the Class
A Majority, the Class B Majority and the Class C Majority, acting together,
shall appoint from among the Agents a successor administrative agent, which
successor Administrative Agent, so long as no Event of Default has occurred and
is continuing, shall be reasonably acceptable to AmeriCredit. Any successor
administrative agent or agent shall succeed to the rights, powers and duties of
resigning Administrative Agent, and the term "Administrative Agent" shall mean
such successor administrative agent or agent effective upon its appointment, and
the former Administrative Agent's rights, powers and duties as Administrative
Agent shall be terminated, without any other or further act or deed on the part
of such former Administrative Agent or any of the parties to this Indenture.
After the retiring Administrative Agent's resignation as
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Administrative Agent, the provisions of this Article XI shall inure to its
benefit as to any actions taken or omitted to be taken by it while it was
Administrative Agent under this Indenture.
ARTICLE XII.
Miscellaneous
SECTION 12.1. Compliance Certificates and Opinions, etc. Upon
any application or request by the Issuer to the Trustee or the Trust Collateral
Agent to take any action under any provision of this Indenture, the Issuer shall
furnish to the Trustee or the Trust Collateral Agent, as the case may be, (i) an
Officer's Certificate stating that all conditions precedent, if any, provided
for in this Indenture relating to the proposed action have been complied with
and (ii) an Opinion of Counsel stating that in the opinion of such counsel all
such conditions precedent, if any, have been complied with.
(a) Every certificate or opinion with respect to compliance
with a condition or covenant provided for in this Indenture shall include:
(i) a statement that each signatory of such certificate or
opinion has read or has caused to be read such covenant or condition and
the definitions herein relating thereto;
(ii) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(iii) a statement that, in the opinion of each such signatory,
such signatory has made such examination or investigation as is
necessary to enable such signatory to express an informed opinion as to
whether or not such covenant or condition has been complied with; and
(iv) a statement as to whether, in the opinion of each such
signatory such condition or covenant has been complied with.
(b)
(i) Prior to the deposit of any Collateral or other property
or securities with the Trust Collateral Agent that is to be made the
basis for the release of any property or securities subject to the lien
of this Indenture, the Issuer shall, in addition to any obligation
imposed in Section 12.1(a) or elsewhere in this Indenture, furnish to
the Trust Collateral Agent and the Administrative Agent an Officer's
Certificate certifying or stating the opinion of each person signing
such certificate as to the fair value (within 90 days of such deposit)
to the Issuer of the Collateral or other property or securities to be so
deposited.
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(ii) Other than with respect to the release of any Purchased
Receivables or Liquidated Receivables, whenever any property or
securities are to be released from the lien of this Indenture, the
Issuer shall also furnish to the Trust Collateral Agent and the
Administrative Agent an Officer's Certificate certifying or stating the
opinion of each person signing such certificate as to the fair value
(within 90 days of such release) of the property or securities proposed
to be released and stating that in the opinion of such person the
proposed release will not impair the security under this Indenture in
contravention of the provisions hereof.
(iii) Notwithstanding Section 2.9 or any other provision of
this Section, the Issuer may (A) collect, liquidate, sell or otherwise
dispose of Receivables as and to the extent permitted or required by the
Basic Documents and (B) make cash payments out of the Trust Accounts as
and to the extent permitted or required by the Basic Documents.
SECTION 12.2. Form of Documents Delivered to Trustee. In any
case where several matters are required to be certified by, or covered by an
opinion of, any specified Person, it is not necessary that all such matters be
certified by, or covered by the opinion of, only one such Person, or that they
be so certified or covered by only one document, but one such Person may certify
or give an opinion with respect to some matters and one or more other such
Persons as to other matters, and any such Person may certify or give an opinion
as to such matters in one or several documents.
Any certificate or opinion of an Authorized Officer of the
Issuer may be based, insofar as it relates to legal matters, upon a certificate
or opinion of, or representations by, counsel, unless such officer knows, or in
the exercise of reasonable care should know, that the certificate or opinion or
representations with respect to the matters upon which his or her certificate or
opinion is based are erroneous. Any such certificate of an Authorized Officer or
Opinion of Counsel may be based, insofar as it relates to factual matters, upon
a certificate or opinion of, or representations by, an officer or officers of
the Servicer, either Seller or the Issuer, stating that the information with
respect to such factual matters is in the possession of the Servicer, such
Seller or the Issuer, unless such counsel knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or
more applications, requests, consents, certificates, statements, opinions or
other instruments under this Indenture, they may, but need not, be consolidated
and form one instrument.
Whenever in this Indenture, in connection with any application
or certificate or report to the Trustee, it is provided that the Issuer shall
deliver any document as a condition of the granting of such application, or as
evidence of the Issuer's compliance with any term hereof, it is intended that
the truth and accuracy, at the time of the granting of such application or at
the effective date of such certificate or report (as the case may be), of the
facts and opinions stated in such document shall in such case be conditions
precedent to the right of the Issuer to have such application granted or to the
sufficiency of such certificate or report. The foregoing shall not,
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however, be construed to affect the Trustee's right to rely upon the truth and
accuracy of any statement or opinion contained in any such document as provided
in Article VI.
SECTION 12.3. Acts of Noteholders.
(a) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be given or taken
by Noteholders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Noteholders in person or by agents
duly appointed in writing; and except as herein otherwise expressly provided
such action shall become effective when such instrument or instruments are
delivered to the Trustee, and, where it is hereby expressly required, to the
Issuer. Such instrument or instruments (and the action embodied therein and
evidenced thereby) are herein sometimes referred to as the "Act" of the
Noteholders signing such instrument or instruments. Proof of execution of any
such instrument or of a writing appointing any such agent shall be sufficient
for any purpose of this Indenture and (subject to Section 6.1) conclusive in
favor of the Trustee and the Issuer, if made in the manner provided in this
Section.
(b) The fact and date of the execution by any person of any
such instrument or writing may be proved in any customary manner of the Trustee.
(c) The ownership of Notes shall be proved by the Note
Register.
(d) Any request, demand, authorization, direction, notice,
consent, waiver or other action by the Holder of any Notes shall bind the Holder
of every Note issued upon the registration thereof or in exchange therefor or in
lieu thereof, in respect of anything done, omitted or suffered to be done by the
Trustee or the Issuer in reliance thereon, whether or not notation of such
action is made upon such Note.
SECTION 12.4. Notices, etc., to Trustee, Issuer and Rating
Agencies. Any request, demand, authorization, direction, notice, consent, waiver
or Act of Noteholders or other documents provided or permitted by this Indenture
to be made upon, given or furnished to or filed with:
(a) The Trustee by any Noteholder or by the Issuer shall be
sufficient for every purpose hereunder if personally delivered, delivered by
overnight courier or mailed certified mail, return receipt requested and shall
be deemed to have been duly given upon receipt to the Trustee at its Corporate
Trust Office, or
(b) The Issuer by the Trustee or by any Noteholder shall be
sufficient for every purpose hereunder if personally delivered, delivered by
overnight courier or mailed certified mail, return receipt requested and shall
deemed to have been duly given upon receipt to the Issuer addressed to:
AmeriCredit Master Trust, in care of Deutsche Bank Trust Company Delaware, E.A.
Delle Donne Corporate Center, Montgomery Building, 1011 Centre Road, Suite 200,
Wilmington, Delaware 19805, with a copy to Deutsche Bank Trust Company Americas,
4 Albany Street, New York, New York 10006, Attention: Corporate Trust
Administration, or at
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any other address previously furnished in writing to the Trustee by Issuer. The
Issuer shall promptly transmit any notice received by it from the Noteholders to
the Trustee.
Notices required to be given to the Rating Agencies by the
Issuer, the Trustee or the Owner Trustee shall be in writing, personally
delivered, delivered by overnight courier or mailed certified mail, return
receipt requested to (i) in the case of Moody's, at the following address:
Moody's Investors Service, Inc., 99 Church Street, New York, New York 10007, and
(ii) in the case of Standard & Poor's, at the following address: Standard &
Poor's, A Division of The McGraw-Hill Companies, Inc., 55 Water Street, 40th
Floor, New York, New York 10041, Attention of Asset Backed Surveillance
Department; or as to each of the foregoing, at such other address as shall be
designated by written notice to the other parties.
SECTION 12.5. Notices to Noteholders; Waiver. Where this
Indenture provides for notice to Noteholders of any event, such notice shall be
sufficiently given (unless otherwise herein expressly provided) if in writing
and mailed, first-class, postage prepaid to each Noteholder affected by such
event, at his address as it appears on the Note Register, not later than the
latest date, and not earlier than the earliest date, prescribed for the giving
of such notice. In any case where notice to Noteholders is given by mail,
neither the failure to mail such notice nor any defect in any notice so mailed
to any particular Noteholder shall affect the sufficiency of such notice with
respect to other Noteholders, and any notice that is mailed in the manner here
in provided shall conclusively be presumed to have been duly given.
Where this Indenture provides for notice in any manner, such
notice may be waived in writing by any Person entitled to receive such notice,
either before or after the event, and such waiver shall be the equivalent of
such notice. Waivers of notice by Noteholders shall be filed with the Trustee
but such filing shall not be a condition precedent to the validity of any action
taken in reliance upon such a waiver.
In case, by reason of the suspension of regular mail service as
a result of a strike, work stoppage or similar activity, it shall be impractical
to mail notice of any event to Noteholders when such notice is required to be
given pursuant to any provision of this Indenture, then any manner of giving
such notice as shall be satisfactory to the Trustee shall be deemed to be a
sufficient giving of such notice.
Where this Indenture provides for notice to the Rating Agencies,
failure to give such notice shall not affect any other rights or obligations
created hereunder, and shall not under any circumstance constitute a Default or
Event of Default.
SECTION 12.6. Borrowings; Swingline Borrowings (a) Subject to
the conditions set forth below and provided that no Class A Limited Amortization
Amount, Class B Limited Amortization Amount or Class C Limited Amortization
Amount is outstanding, on any Business Day prior to the termination of the
Commitments, additional amounts may be borrowed or reborrowed by the Issuer
under the Class A Notes, the Class B Notes, the Class C Notes, the Class D Notes
and/or the Class E Notes (a "Borrowing"). Notice of any Borrowing shall be given
by the Issuer to the Trustee and the Administrative Agent before 11:00 a.m., New
York City time, at least one Business Day prior to such Borrowing, and the
Administrative Agent shall
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give notice of any such Borrowing (including a copy of the related Borrowing
Notice) to the related Agents before 2:00 p.m. , New York City time, on the day
it receives such notice from the Issuer. Borrowings within each Class (and Class
A-1 and Class A-2 shall constitute a single class for these purposes) shall be
pro rata according to the unused Commitments related to such Class. It shall be
a condition to Borrowing under any Note that (i) each applicable condition to
such Borrowing specified in the related Note Purchase Agreement is satisfied on
the date of such Borrowing (a "Borrowing Date"), (ii) the Issuer shall have
delivered to the Trustee and the Administrative Agent (A) an updated Schedule of
Receivables, (B) an Officer's Certificate in substantially the form of Exhibit E
hereto (a "Borrowing Base Confirmation") certifying the calculation of the
Borrowing Bases as of the latest practicable date, but in no event earlier than
the Business Day prior to the Borrowing Date, such calculation to be in the form
set forth in the form of Servicer's Certificate attached to the Sale and
Servicing Agreement and (C) an Officer's Certificate to the effect that the
conditions precedent set forth herein and in the related Note Purchase Agreement
shall have been satisfied, and (iii) in no event may the aggregate amount of
Borrowings outstanding under any Class of Notes exceed the aggregate amount of
the Commitments (as such Commitments may be increased or reduced from time to
time pursuant to the related Note Purchase Agreement(s)) with respect to such
Class; provided, further, that, other than Borrowings with respect to the Class
S Notes pursuant to Section 12.6(b), Borrowing Dates shall occur no more
frequently than twice every calendar week. The proceeds of each Borrowing shall
be applied first to repay the principal amount of any outstanding Swingline
Borrowing and then as the Issuer may direct.
If either the Class D Notes or the Class E Notes have not been rated by
Moody's and S&P, then the Servicer, on behalf of the Trustee, shall maintain
records of all amounts borrowed and repaid on such Notes.
(b) (i) Subject to the conditions set forth below, on any
Business Day prior to the termination of the Commitments, additional amounts may
be borrowed or reborrowed by the Issuer under the Class S Notes (a "Swingline
Borrowing"). Notice of any Swingline Borrowing shall be given by the Issuer to
the Trustee, each Class S Agent and the Administrative Agent before 10:00 a.m.,
New York City time, on the day of such Borrowing. It shall be a condition to a
Swingline Borrowing that (i) each applicable condition to such Swingline
Borrowing specified in the Class S Note Purchase Agreement is satisfied on the
date of such Swingline Borrowing (a "Swingline Borrowing Date"), (ii) the Issuer
shall have delivered to the Trustee and the Administrative Agent (A) an Amended
Schedule of Receivables, (B) a Borrowing Base Confirmation certifying (i) the
calculation of the Class S Borrowing Base as of the latest practicable date, but
in no event earlier than the Business Day prior to the Borrowing Date, and (ii)
that, absent such Swingline Borrowing, the Issuer would have been permitted to
borrow on such Swingline Borrowing Date additional amounts under the Class A
Notes, the Class B Notes and the Class C Notes pursuant to the terms hereof and
of the Class A-1 Note Purchase Agreement, Class A-2 Note Purchase Agreement, the
Class B Note Purchase Agreement and the Class C Note Purchase Agreement in an
aggregate amount equal to or greater than the amount of the requested Swingline
Borrowing and (C) an Officer's Certificate to the effect that the conditions
precedent set forth herein and in the Class S Note Purchase Agreement shall have
been satisfied, (iii) each holder of a Class A Commitment, Class B Commitment or
Class C
- 63 -
Commitment shall have a short term debt rating of at least A-2 by S&P and P-2 by
Moody's and (iv) in no event may the aggregate amount of Borrowings outstanding
under the Class S Notes exceed the aggregate amount of the Class S Commitments
(as such Commitments may be reduced from time to time pursuant to the Class S
Note Purchase Agreement); provided, further, that Swingline Borrowing Dates
shall occur no more frequently than two times every calendar week. The Class S
Purchasers shall not be entitled to waive the conditions precedent to Swingline
Borrowings set forth herein and in the Class S Note Purchase Agreement, and the
Issuer agrees that it shall not be entitled to Swingline Borrowings absent
satisfaction of all such conditions.
The amount of each outstanding Swingline Borrowing shall reduce
the Commitments with respect to: (i) the Class A Notes by an amount equal to (a)
the product of the Class A Borrowing Percentage multiplied by the sum of the
Outstanding Amount of the Class A Notes, Class B Notes, Class C Notes and Class
S Notes, minus (b) the Outstanding Amount of the Class A Notes; (ii) the Class B
Notes by an amount equal to (a) the product of the Class B Borrowing Percentage
multiplied by the sum of the Outstanding Amount of the Class A Notes, Class B
Notes, Class C Notes and Class S Notes, minus (b) the Outstanding Amount of the
Class B Notes; and (iii) the Class C Notes by an amount equal to (a) the product
of the Class C Borrowing Percentage multiplied by the sum of the Outstanding
Amount of the Class A Notes, Class B Notes, Class C Notes and Class S Notes,
minus (b) the Outstanding Amount of the Class C Notes.
Unless the Administrative Agent otherwise consents, the amount
of any proposed Swingline Borrowing shall be at least $5,000,000 and shall be an
integral multiple of $1,000,000.
With respect to each Swingline Borrowing, the Issuer agrees that
pursuant to Section 12.6(a) it will request a Borrowing, the proceeds of which
will be at least sufficient to repay the principal amount of such Swingline
Borrowing, for funding on the earliest of (i) the first Determination Date after
the related Swingline Borrowing Date, (ii) the date the Class S Principal Amount
equals $100,000,000, (iii) the next Borrowing Date with respect to any of the
Class A Notes, Class B Notes or Class C Notes, (iv) the date on which any Class
A Commitment, Class B Commitment or Class C Commitment terminates and (v) the
date on which an Event of Default occurs (on which earliest date the Issuer must
repay all outstanding Swingline Borrowings). The Issuer may, at its option,
request a Borrowing, the proceeds of which will be at least sufficient to repay
the principal amount of such Swingline Borrowing, at any time the Class S
Principal Amount equals or exceeds $40,000,000.
Unless a Swingline Borrowing has been repaid by the Issuer
(including from the proceeds of other Borrowings hereunder) by the earliest of
(i) the first Determination Date after the related Swingline Borrowing Date,
(ii) the date the Class S Principal Amount equals $100,000,000, (iii) the next
Borrowing Date with respect to any of the Class A Notes, Class B Notes or Class
C Notes, (iv) the date on which any Class A Commitment, Class B Commitment or
Class C Commitment terminates and (v) the date on which an Event of Default
occurs (on which earliest date the Issuer must repay all outstanding Swingline
Borrowings), the Issuer shall be deemed to have requested a Borrowing from the
holders of the Class A Notes, Class B Notes and Class C Notes in an amount
sufficient to repay the principal amount of such Swingline
- 64 -
Borrowing plus all accrued and unpaid interest thereon. If the Issuer shall be
precluded from making any such Borrowing, the holders of the Class A Notes,
Class B Notes and Class C Notes shall make a purchase, in accordance with the
terms of the related Note Purchase Agreement, from the Class S Noteholders in
the respective amounts set forth in the last sentence of this paragraph for an
aggregate purchase price equivalent to the amount of such Borrowing. By
accepting delivery of the Class A Notes, Class B Notes and Class C Note, the
Class A Noteholders, Class B Noteholders and Class C Noteholders are deemed to
have agreed to advance such Borrowings (or make such purchases) from time to
time in accordance with the terms hereof and of the applicable Note Purchase
Agreement. In such event, the Administrative Agent shall give written notice to
the Class A-1 Agents, Class A-2 Agents, Class B Agents, Class C Agents and Class
S Agents, which notice shall include (i) the date on which such Borrowing (or
purchase and sale) is to occur, which shall be a Business Day (the "Swingline
Purchase Date") and (ii) the amount of such Swingline Borrowing (plus all
accrued and unpaid interest thereon). Such notice shall be given not later than
2:00 p.m. (New York City time) on the Business Day prior to the Swingline
Purchase Date. Following receipt by such Agents, the Class A Noteholders, Class
B Noteholders and Class C Noteholders shall fund, in accordance with the terms
of the related Note Purchase Agreement, a Borrowing (or purchase a portion of
the principal amount of such Swingline Borrowing and all interest accrued
thereon) on the applicable Swingline Purchase Date in the following respective
amounts: (a) the lesser of (i) the Class A Swingline Allocation on such date and
(ii) the amount of such Swingline Borrowing, (b) the lesser of (i) the Class B
Swingline Allocation on such date and (ii) the amount of such Swingline
Borrowing minus the amount determined pursuant to clause (a), and (c) the lesser
of (i) the Class C Swingline Allocation on such date and (ii) the amount of such
Swingline Borrowing minus the sum of the amounts determined pursuant to clauses
(a) and (b), provided, that if the amount of such Swingline Borrowing exceeds
the sum of the amounts determined pursuant to clauses (a), (b) and (c), the
Class A Noteholders, Class B Noteholders and Class C Noteholders shall fund (or
purchase) such excess pro rata based on the Class A Swingline Allocation on the
Swingline Borrowing Date, the Class B Swingline Allocation on the Swingline
Borrowing Date and the amount of the Swingline Borrowing minus the Class A
Swingline Allocation and the Class B Swingline Allocation on the Swingline
Borrowing Date, respectively.
Before 2:00 p.m. (New York City time) on each Swingline Purchase
Date, each purchasing Noteholder shall make the purchase price for its pro rata
share of the applicable Swingline Borrowing available to the Administrative
Agent by wire transfer of immediately available funds. Subject to the
Administrative Agent's receipt of such funds, the Administrative Agent will not
later than 4:00 p.m. (New York City time) on such Swingline Purchase Date make
such funds available, in the same type of funds received, by wire transfer
thereof to the selling Class S Noteholders.
Subject to the terms and conditions set forth in the applicable
Note Purchase Agreement, the obligation of each holder of a Class A Note, the
Class B Note or the Class C Note to purchase Swingline Borrowings pursuant to
this Section 12.6(b) shall be absolute, irrevocable and unconditional, and not
be affected by any circumstance, including (i) any set-off, counterclaim,
recoupment, defense or other right which such Noteholder or the Issuer may have
against the Class S Noteholders, the Issuer, either Seller, the Servicer, the
Trustee, the
- 65 -
Administrative Agent or any other Person for any reason whatsoever, (ii) the
occurrence or continuance of any Default or Event of Default (including the
occurrence of any Insolvency Event with respect to the Issuer), (iii) any
Borrowing Base Deficiency or any adverse change in the Collateral or in the
condition (financial or other) of the Issuer, either Seller or the Servicer,
(iv) any breach of this Indenture or any Basic Document by the Issuer, either
Seller, the Servicer, the Trust Collateral Agent, the Custodian, the Backup
Servicer, the Administrative Agent or the Trustee, (v) the failure of the
conditions set forth in any Note Purchase Agreement to have been or to be
satisfied, or (vii) any other circumstance, happening or event whatsoever,
whether or not similar to any of the foregoing.
The Administrative Agent shall give prompt notice to the Issuer
of each purchase of Swingline Borrowings pursuant to this Section 12.6(b).
SECTION 12.7. Additional Commitments; Reallocation of Certain
Commitments. (a) The Issuer may from time to time, subject to the conditions
set forth in the a Note Purchase Agreement, supplement such Note Purchase
Agreement to provide for additional Commitments with respect to the Class of
Notes related thereto. On the date of any such supplement, the Issuer shall
execute and deliver to the Trustee for authentication, additional notes in a
maximum principal amount equal to the amount of such additional Commitments. If
on any Additional Issuance Date for any Class of Notes, the aggregate
outstanding principal balance of such Notes exceeds zero, then the person to
whom such additional Notes are issued shall make an advance (which shall
constitute an Additional Class A-1 Principal Amount, an Additional Class A-2
Principal Amount, an Additional Class B Principal Amount, an Additional Class C
Principal Amount, an Additional Class D Principal Amount or an Additional Class
E Principal Amount, as the case may be) to the Administrative Agent, for pro
rata distribution to the other holders of the Notes of such Class (and Class A-1
and Class A-2 shall constitute a single class for these purposes), an amount
such that, after giving effect to such distribution, the outstanding principal
balance of each Note of such Class shall be proportionate to the related
Commitment with respect to such Note.
(b) Without the consent of any other Noteholder, the Class A
Commitment of any Committed Purchaser (as defined in a Class A Note Purchase
Agreement) and/or the Class B Commitment of any Committed Purchaser (as defined
in the Class B Note Purchase Agreement) may be reallocated at any time to be a
Commitment with respect to any other Class of Notes subordinate to the Class of
Notes to which such commitment originally applied if such Committed Purchaser
and the Issuer mutually agree to such reallocation.
SECTION 12.8. Effect of Headings and Table of Contents. The
Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
SECTION 12.9. Successors and Assigns. All covenants and
agreements in this Indenture and the Notes by the Issuer shall bind its
successors and assigns, whether so expressed or not. All agreements of the
Trustee in this Indenture shall bind its successors. All agreements of the Trust
Collateral Agent in this Indenture shall bind its successors.
- 66 -
SECTION 12.10. Separability. In case any provision in this
Indenture or in the Notes shall be invalid, illegal or unenforceable, the
validity, legality, and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
SECTION 12.11. Legal Holidays. In any case where the date on
which any payment is due shall not be a Business Day, then (notwithstanding any
other provision of the Notes or this Indenture) payment need not be made on such
date, but may be made on the next succeeding Business Day with the same force
and effect as if made on the date an which nominally due, and no interest shall
accrue for the period from and after any such nominal date.
SECTION 12.12. GOVERNING LAW. THIS INDENTURE SHALL BE CONSTRUED
IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK, WITHOUT
GIVING EFFECT TO ITS CONFLICT OF LAW PROVISIONS (OTHER THAN SECTIONS 5-1401 AND
5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW).
SECTION 12.13. Counterparts. This Indenture may be executed in
any number of counterparts, each of which so executed shall be deemed to be an
original, but all such counterparts shall together constitute but one and the
same instrument.
SECTION 12.14. Recording of Indenture. If this Indenture is
subject to recording in any appropriate public recording offices, such recording
is to be effected by the Issuer and at its expense accompanied by an Opinion of
Counsel (which may be counsel to the Trustee) to the effect that such recording
is necessary either for the protection of the Noteholders or any other person
secured hereunder or for the enforcement of any right or remedy granted to the
Trustee or the Trust Collateral Agent under this Indenture.
SECTION 12.15. Trust Obligation. No recourse may be taken,
directly or indirectly, with respect to the obligations of the Issuer, AFC, the
Servicer, the Owner Trustee, the Trust Collateral Agent or the Trustee on the
Notes or under this Indenture, any other Basic Document or any certificate or
other writing delivered in connection herewith or therewith, against (i) AFC,
the Servicer, the Trustee, the Trust Collateral Agent or the Owner Trustee in
its individual capacity, (ii) any owner of a beneficial interest in the Issuer
or (iii) any partner, owner, beneficiary, agent, officer, director, employee or
agent of AFC, the Servicer, the Trustee, the Trust Collateral Agent or the Owner
Trustee in its individual capacity, any holder of a beneficial interest in the
Issuer, AFC, the Servicer, the Owner Trustee, the Trust Collateral Agent or the
Trustee or of any successor or assign of AFC, the Servicer, the Trustee, the
Trust Collateral Agent or the Owner Trustee in its individual capacity, except
as any such Person may have expressly agreed (it being understood that the
Trustee, the Trust Collateral Agent and the Owner Trustee have no such
obligations in their individual capacity) and except that any such partner,
owner or beneficiary shall be fully liable, to the extent provided by applicable
law, for any unpaid consideration for stock, unpaid capital contribution or
failure to pay any installment or call owing to such entity. For all purposes of
this Indenture, in the performance of any duties or obligations of the Issuer
hereunder, the Owner Trustee shall be subject to, and entitled to the benefits
of, the terms and provisions of Article VI, VII and VIII of the Trust Agreement.
- 67 -
SECTION 12.16. No Petition. The Trustee and the Trust
Collateral Agent, by entering into this Indenture, and each Noteholder, by
accepting a Note, hereby covenant and agree that they will not at any time
institute against AFC, or the Issuer, or join in any institution against AFC, or
the Issuer of, any bankruptcy, reorganization, arrangement, insolvency or
liquidation proceedings, or other proceedings under any United States federal or
State bankruptcy or similar law in connection with any obligations relating to
the Notes, this Indenture or any of the Basic Documents.
SECTION 12.17. Inspection. The Issuer agrees that, on
reasonable prior notice, it will permit any representative of the Trustee, of
any Agent or of the Administrative Agent, during the Issuer's normal business
hours, to examine all the books of account, records, reports, and other papers
of the Issuer, to make copies and extracts therefrom, to cause such books to be
audited by independent certified public accountants, and to discuss the Issuer's
affairs, finances and accounts with the Issuer's officers, employees, and
independent certified public accountants, all at such reasonable times and as
often as may be reasonably requested. Notwithstanding anything herein to the
contrary, the foregoing shall not be construed to prohibit (i) disclosure of any
and all information that is or becomes publicly known, (ii) disclosure of any
and all information (A) if required to do so by any applicable statute, law,
rule or regulation, (B) to any government agency or regulatory body having or
claiming authority to regulate or oversee any respects of the Trustee's business
or that of its affiliates, (C) pursuant to any subpoena, civil investigative
demand or similar demand or request of any court, regulatory authority,
arbitrator or arbitration to which the Trustee or an affiliate or an officer,
director, employer or shareholder thereof is a party, (D) in any preliminary or
final offering circular, registration statement or contract or other document
pertaining to the transactions contemplated by the Indenture approved in advance
by the Servicer or the Issuer or (E) to any independent or internal auditor,
agent, employee or attorney of the Trustee having a need to know the same,
provided that the Trustee advises such recipient of the confidential nature of
the information being disclosed, or (iii) any other disclosure authorized by the
Servicer or the Issuer.
SECTION 12.18. Effectiveness of Amendment and Restatement. The
amendment and restatement of this Indenture set forth herein shall become
effective as of the date hereof upon receipt by the Trustee of counterparts of
this Indenture (whether by facsimile or otherwise) executed by each of the other
parties hereto and of evidence that Noteholders representing all of the Class A
Noteholders, the Class B Noteholders and the Class C Noteholders have approved
such amendment and restatement, receipt by the Trustee of an opinion of counsel
satisfying the requirements of Section 9.3 of the Indenture, and satisfaction of
the Rating Agency Condition.
SECTION 12.19. Class D and Class E Note Proceeds.
Notwithstanding any provision of this Indenture, including Section 3.13 hereof,
to the contrary, the Issuer may apply the proceeds of the issuance of any Class
D Notes or Class E Notes to repay the outstanding principal amount of, and
accrued interest on, outstanding Class D Notes and/or Class E Notes or to repay
some or all of the outstanding principal amount of another Class or Classes of
Notes (including the payment of any Limited Amortization Amount with respect to
such Class or Classes) so long as, after giving effect to such repayment, no
Borrowing Base Deficiency exists.
- 68 -
[SIGNATURE PAGE FOLLOWS]
- 69 -
IN WITNESS WHEREOF, the Issuer, the Trustee and the
Administrative Agent have caused this Indenture to be duly executed by their
respective officers, hereunto duly authorized, all as of the day and year first
above written.
AMERICREDIT MASTER TRUST,
By: DEUTSCHE BANK TRUST COMPANY
DELAWARE, not in its individual capacity but solely as
Owner Trustee
By:
-------------------------------------------
Name:
Title:
BANK ONE, NA,
not in its individual capacity but solely as
Trustee and Trust Collateral Agent
By:
-------------------------------------------
Name:
Title:
DEUTSCHE BANK TRUST COMPANY AMERICAS,
as Administrative Agent
By:
-------------------------------------------
Name:
Title:
By:
-------------------------------------------
Name:
Title:
Effective as of the date hereof, the undersigned
hereby resigns as Administrative Agent under the
Indenture:
DEUTSCHE BANK AG, NEW YORK BRANCH,
By:
---------------------------------------------
Name:
Title:
By:
---------------------------------------------
Name:
Title:
[Indenture]
SCHEDULE 2
UPDATED: EFFECTIVE NOVEMBER 5, 2003
"Class A Credit Score Enhancement Rate", "Class B Credit Score
Enhancement Rate" and "Class C Credit Score Enhancement Rate" shall be
determined pursuant to Option A or Option B, as elected by the Issuer from time
to time. The Issuer shall notify the Indenture Trustee in writing in advance of
which such option it has elected and of any change in such election.
OPTION A:
"Class A Credit Score Enhancement Rate" means, as of any date,
the sum of (1) the Step-Up Percentage and (2) the greater of (a) 18.50% and (b)
the percentage set forth in the following table opposite the Net Spread as of
such date in the column in which the weighted average AmeriCredit Score for the
Eligible Receivables as of such date appears:
CLASS A Weighted Average AmeriCredit Score
220-224 225 to 229 230-234 235-239 240-244 245+
Net Spread
** 9.0% 44.90% 50.10% 47.50% 55.70% 31.70%
** 8.5% and
*** 9.0% 45.80% 52.75% 49.10% 60.30% 38.20%
** 8.0% and
*** 8.5% 47.75% 54.35% 49.70% 60.60% 42.95%
** 7.5% and
*** 8.0% 54.30% 55.75% 50.15% 61.85% 43.40%
** 7.0% and
*** 7.5% 54.20% 55.90% 50.60% 65.70% 46.00%
** 6.5% and
*** 7.0% 58.80% 57.55% 52.00% 69.30% 49.60%
** 6.0% and
*** 6.5% 60.90% 59.95% 54.50% 73.90% 54.20%
** 5.5% and
*** 6.0% 67.50% 61.35% 54.40% 75.65% 55.70%
"Class B Credit Score Enhancement Rate" means, as of any date,
the sum of (1) the Step-Up Percentage and (2) the greater of (a) 15.00% and (b)
the percentage set forth in the following table opposite the Net Spread as of
such date in the column in which the weighted average AmeriCredit Score for the
Eligible Receivables as of such date appears:
CLASS B Weighted Average AmeriCredit Score
220-224 225 to 229 230-234 235-239 240-244 245+
Net Spread
** 9.0% 37.50% 47.25% 44.00% 52.70% 28.20%
** 8.5% and
*** 9.0% 38.50% 48.75% 45.10% 57.30% 34.20%
** 8.0% and
*** 8.5% 40.45% 50.35% 45.70% 57.60% 38.95%
** 7.5% and
*** 8.0% 45.10% 51.00% 46.60% 58.10% 39.90%
** 7.0% and
*** 7.5% 47.20% 51.90% 46.60% 61.70% 43.00%
** 6.5% and
*** 7.0% 48.80% 52.80% 48.00% 65.30% 45.60%
** 6.0% and
*** 6.5% 51.90% 53.70% 49.00% 69.90% 49.20%
** 5.5% and
*** 6.0% 54.50% 54.10% 49.90% 71.65% 50.70%
"Class C Credit Score Enhancement Rate" means, as of any date,
the sum of (1) the Step-Up Percentage and (2) the greater of (a) 8.50% and (b)
the percentage set forth in the following table opposite the Net Spread as of
such date in the column in which the weighted average AmeriCredit Score for the
Eligible Receivables as of such date appears:
CLASS C Weighted Average AmeriCredit Score
220-224 225 to 229 230-234 235-239 240-244 245+
Net Spread
** 9.0% 23.00% 18.50% 15.00% 11.70% 10.20%
** 8.5% and
*** 9.0% 24.00% 19.25% 15.60% 12.30% 10.20%
** 8.0% and
*** 8.5% 24.70% 20.00% 16.70% 13.10% 10.35%
** 7.5% and
*** 8.0% 24.60% 21.00% 17.60% 14.10% 11.40%
** 7.0% and
*** 7.5% 25.20% 21.90% 18.60% 14.70% 12.00%
** 6.5% and
*** 7.0% 25.80% 22.80% 19.00% 15.30% 12.60%
** 6.0% and
*** 6.5% 26.40% 23.70% 20.00% 15.90% 13.20%
** 5.5% and
*** 6.0% 27.00% 24.60% 21.20% 16.65% 14.00%
** Greater Than
*** Less Than or Equal to
OPTION B:
"Class A Credit Score Enhancement Rate" means, as of any date,
the sum of (1) the Step-Up Percentage and (2) the greater of (a) 18.50% and (b)
the percentage set forth in the following table opposite the Net Spread as of
such date in the column in which the weighted average AmeriCredit Score for the
Eligible Receivables as of such date appears:
CLASS A Weighted Average AmeriCredit Score
220-224 225 to 229 230-234 235-239 240-244 245+
Net Spread
** 9.0% 39.85% 38.20% 37.50% 40.65% 25.65%
** 8.5% and
*** 9.0% 40.20% 41.00% 40.50% 42.85% 29.90%
** 8.0% and
*** 8.5% 41.40% 42.50% 41.25% 43.45% 32.35%
** 7.5% and
*** 8.0% 44.85% 44.25% 42.05% 44.45% 32.30%
** 7.0% and
*** 7.5% 44.20% 43.50% 43.00% 45.15% 33.00%
** 6.5% and
*** 7.0% 48.70% 45.00% 43.00% 46.85% 35.70%
** 6.0% and
*** 6.5% 49.65% 48.25% 45.50% 48.30% 38.40%
** 5.5% and
*** 6.0% 55.35% 50.00% 44.50% 49.15% 38.50%
"Class B Credit Score Enhancement Rate" means, as of any date,
the sum of (1) the Step-Up Percentage and (2) the greater of (a) 15.00% and (b)
the percentage set forth in the following table opposite the Net Spread as of
such date in the column in which the weighted average AmeriCredit Score for the
Eligible Receivables as of such date appears:
CLASS B Weighted Average AmeriCredit Score
220-224 225 to 229 230-234 235-239 240-244 245+
Net Spread
** 9.0% 32.45% 35.35% 34.00% 37.65% 22.15%
** 8.5% and
*** 9.0% 32.90% 37.00% 36.50% 39.85% 25.90%
** 8.0% and
*** 8.5% 34.10% 38.50% 37.25% 40.45% 28.35%
** 7.5% and
*** 8.0% 35.65% 39.50% 38.50% 40.70% 28.80%
** 7.0% and
*** 7.5% 37.20% 39.50% 39.00% 41.15% 30.00%
** 6.5% and
* 7.0% 38.70% 40.25% 39.00% 42.85% 31.70%
** 6.0% and
*** 6.5% 40.65% 42.00% 40.00% 44.30% 33.40%
** 5.5% and
*** 6.0% 42.35% 42.75% 40.00% 45.15% 33.50%
* Less Than
** Greater Than
*** Less Than or Equal to
"Class C Credit Score Enhancement Rate" means, as of any date,
the sum of (1) the Step-Up Percentage and (2) the greater of (a) 8.50% and (b)
the percentage set forth in the following table opposite the Net Spread as of
such date in the column in which the weighted average AmeriCredit Score for the
Eligible Receivables as of such date appears:
CLASS C Weighted Average AmeriCredit Score
220-224 225 to 229 230-234 235-239 240-244 245+
Net Spread
** 9.0% 25.00% 21.35% 17.00% 13.65% 11.90%
** 8.5% and
*** 9.0% 26.50% 22.00% 17.50% 14.35% 11.90%
** 8.0% and
*** 8.5% 27.00% 22.50% 18.25% 15.65% 12.15%
** 7.5% and
*** 8.0% 27.75% 23.50% 19.00% 16.10% 13.30%
** 7.0% and
*** 7.5% 28.00% 24.50% 20.00% 17.15% 14.00%
** 6.5% and
*** 7.0% 28.50% 25.25% 21.00% 17.85% 14.70%
** 6.0% and
*** 6.5% 29.25% 26.00% 22.00% 18.55% 15.40%
** 5.5% and
*** 6.0% 29.75% 26.75% 23.00% 19.35% 16.50%
"Class D Credit Score Enhancement Rate" shall have the meaning,
if any, set forth in a supplement or amendment to the Indenture.
** Greater Than
*** Less Than or Equal to
"Class E Credit Score Enhancement Rate" shall have the meaning,
if any, set forth in a supplement or amendment to the Indenture.
SCHEDULE 3
SEASONING CUMULATIVE NET LOSS
IN MONTHS RATIO
-------------------------- -----------------------
1 3.00%
2 3.00%
3 3.00%
4 4.00%
5 4.00%
6 4.00%
7 5.50%
8 5.50%
9 5.50%
10 7.00%
11 7.00%
12 7.00%
13 8.75%
14 8.75%
15 8.75%
16 10.75%
17 10.75%
18 10.75%
19 12.70%
20 12.70%
21 12.70%
22 14.25%
23 14.25%
24 14.25%
25 15.50%
26 15.50%
27 15.50%
28 16.75%
29 16.75%
30 16.75%
31 17.50%
32 17.50%
33 17.50%
34 18.50%
35 18.50%
36 18.50%
37 19.25%
38 19.25%
39 19.25%
40 19.25%
41 19.25%
42 19.25%
43 19.25%
44 19.25%
45 19.25%
46 19.25%
47 19.25%
48 19.25%
49 19.25%
50 19.25%
51 19.25%
52 19.25%
53 19.25%
54 19.25%
55 19.25%
56 19.25%
57 19.25%
58 19.25%
59 19.25%
60 19.25%
SCHEDULE 4
APPROVED TRUSTEES
The Bank of New York
The Chase Manhattan Bank / JPMorgan Chase Bank
State Street Bank and Trust Company
Deutsche Banc Alex. Brown
Lehman Brothers
U.S. Bank National Association
Wells Fargo Bank Minnesota, National Association
Manufacturers and Traders Trust Company
Deutsche Bank Trust Company Americas
HSBC Bank, USA
ANNEX B
REPRESENTATIONS AND WARRANTIES OF THE ISSUER
Representations and Warranties Regarding the Receivables:
1. Security Interest in Financed Vehicle. This Indenture creates a valid
and continuing security interest (as defined in the applicable UCC) in the
Receivables in favor of the Trust Collateral Agent, which security interest is
prior to all other Liens, and is enforceable as such as against creditors of and
purchasers from the related Seller. The Issuer owns and has good and marketable
title to the Receivables free and clear of any Lien (other than the Lien in
favor of the Trust Collateral Agent), claim or encumbrance of any Person.
2. All Filings Made. The Issuer has taken all steps necessary to perfect
the Trust Collateral Agent's security interest in the property securing the
Receivables, and caused, within ten days after the Closing Date, the filing of
all appropriate financing statements in the proper filing office in the State of
Delaware under applicable law in order to perfect the security interest in the
Receivables granted to the Trust Collateral Agent hereunder.
3. No Impairment. The Issuer has not done anything to convey any right to
any Person that would result in such Person having a right to payment due under
the Receivable or otherwise to impair the rights of the Trustee, the Trust
Collateral Agent and the Noteholders in any Receivable or the proceeds thereof.
Other than the security interest granted to the Trust Collateral Agent pursuant
to this Indenture, the Issuer has not pledged, assigned, sold, granted a
security interest in, or otherwise conveyed any of the Receivables other than
any financing statement relating to the security interest granted to the Trust
Collateral Agent hereunder or that has been terminated. The Issuer is not aware
of any judgment or tax lien filings against it.
4. Chattel Paper. The Receivables constitute chattel paper within the
meaning of the UCC as in effect in the States of Texas, New York and Delaware.
5. Good Title. Immediately prior to the pledge of the Receivables to the
Trust Collateral Agent pursuant to this Indenture, the Issuer was the sole owner
thereof and had good and indefeasible title thereto, free of any Lien and, upon
execution and delivery of this Agreement, the Issuer shall continue to have good
and indefeasible title to and will be the sole owner of such Receivables, free
of any Lien other than the Lien in favor of the Trust Collateral Agent. No
Dealer or Third-Party Lender has a participation in, or other right to receive,
proceeds of any Receivable. The Issuer has not taken any action to convey any
right to any Person that would result in such Person having a right to payments
received under the related Insurance Policies or the related Dealer Agreements,
Auto Loan Purchase and Sale Agreements, Dealer Assignments or Third-Party Lender
Assignments or to payments due under such Receivables.
6. Possession of Original Notes. The Servicer, as Custodian on behalf of
the Issuer, has in its possession all original copies of the contracts that
constitute or evidence the Receivables.
Table of Contents
Page
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ARTICLE I. DEFINITIONS AND INCORPORATION BY REFERENCE....................................2
SECTION 1.1. Definitions............................................................2
SECTION 1.2. Rules of Construction..................................................2
ARTICLE II. THE NOTES.....................................................................3
SECTION 2.1. Form 3
SECTION 2.2. Execution, Authentication and Delivery.................................3
SECTION 2.3. Temporary Notes........................................................4
SECTION 2.4. Registration; Registration of Transfer and Exchange....................4
SECTION 2.5. Mutilated, Destroyed, Lost or Stolen Notes.............................6
SECTION 2.6. Persons Deemed Owner...................................................7
SECTION 2.7. Payment of Principal and Interest......................................7
SECTION 2.8. Cancellation...........................................................8
SECTION 2.9. Release of Collateral..................................................8
SECTION 2.10. Book-Entry Notes......................................................10
SECTION 2.11. Notices to Clearing Agency............................................11
SECTION 2.12. Definitive Notes......................................................11
SECTION 2.13. Subordination.........................................................12
ARTICLE III. COVENANTS....................................................................14
SECTION 3.1. Payment of Principal and Interest.....................................14
SECTION 3.2. Maintenance of Office or Agency.......................................14
SECTION 3.3. Money for Payments to be Held in Trust................................15
SECTION 3.4. Existence.............................................................16
SECTION 3.5. Protection of Trust Estate............................................16
SECTION 3.6. Opinions as to Trust Estate...........................................17
SECTION 3.7. Performance of Obligations; Servicing of Receivables..................17
SECTION 3.8. Negative Covenants....................................................18
SECTION 3.9. Annual Statement as to Compliance.....................................19
SECTION 3.10. Issuer May Consolidate, Etc. Only on Certain Terms....................19
SECTION 3.11. Successor or Transferee...............................................21
SECTION 3.12. No Other Business.....................................................22
SECTION 3.13. No Borrowing..........................................................22
SECTION 3.14. Servicer's Obligations................................................22
SECTION 3.15. Guarantees, Loans, Advances and Other Liabilities.....................22
SECTION 3.16. Capital Expenditures..................................................22
SECTION 3.17. Compliance with Laws..................................................22
SECTION 3.18. Restricted Payments...................................................22
SECTION 3.19. Notice of Events of Default...........................................23
SECTION 3.20. Further Instruments and Acts..........................................23
SECTION 3.21. Amendments of Sale and Servicing Agreement and Trust Agreement........23
SECTION 3.22. Income Tax Characterization...........................................23
SECTION 3.23. Interest Rate Hedges..................................................23
SECTION 3.24. Ratings Reaffirmations................................................24
SECTION 3.25. Tangible Net Worth....................................................24
SECTION 3.26. Change in Name or Jurisdiction of Organization........................24
SECTION 3.27. Limitation on Transactions with Affiliates............................24
SECTION 3.28. Limitation on Investments.............................................24
SECTION 3.29. Borrowing Base Confirmation...........................................24
i
Table of Contents
(continued)
Page
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ARTICLE IV. SATISFACTION AND DISCHARGE...................................................................25
SECTION 4.1. Satisfaction and Discharge of Indenture...............................................25
SECTION 4.2. Application of Trust Money............................................................26
SECTION 4.3. Repayment of Moneys Held by Note Paying Agent.........................................26
ARTICLE V. REMEDIES.....................................................................................26
SECTION 5.1. Events of Default.....................................................................26
SECTION 5.2. Rights Upon Event of Default..........................................................30
SECTION 5.3. Collection of Indebtedness and Suits for Enforcement by Trustee.......................31
SECTION 5.4. Remedies..............................................................................34
SECTION 5.5. Optional Preservation of the Receivables..............................................35
SECTION 5.6. Priorities............................................................................35
SECTION 5.7. [Reserved]............................................................................35
SECTION 5.8. Unconditional Rights of Noteholders to Receive Principal and Interest.................35
SECTION 5.9. Restoration of Rights and Remedies....................................................35
SECTION 5.10. Rights and Remedies Cumulative........................................................35
SECTION 5.11. Delay or Omission not a Waiver........................................................36
SECTION 5.12. Control by Noteholders................................................................36
SECTION 5.13. Waiver of Past Defaults...............................................................36
SECTION 5.14. [Reserved]............................................................................37
SECTION 5.15. Waiver of Stay or Extension Laws......................................................37
SECTION 5.16. Action on Notes.......................................................................37
SECTION 5.17. Performance and Enforcement of Certain Obligations....................................37
ARTICLE VI. THE TRUSTEE AND THE TRUST COLLATERAL AGENT...................................................38
SECTION 6.1. Duties of Trustee.....................................................................38
SECTION 6.2. Rights of Trustee.....................................................................39
SECTION 6.3. Individual Rights of Trustee..........................................................41
SECTION 6.4. Trustee's Disclaimer..................................................................41
SECTION 6.5. Conflicting Instructions..............................................................41
SECTION 6.6. Reports by Trustee to Holders.........................................................41
SECTION 6.7. Compensation and Indemnity............................................................41
SECTION 6.8. Replacement of Trustee................................................................42
SECTION 6.9. Successor Trustee by Merger...........................................................43
SECTION 6.10. Appointment of Co-Trustee or Separate Trustee.........................................44
SECTION 6.11. Eligibility; Disqualification.........................................................45
SECTION 6.12. Appointment and Powers................................................................45
SECTION 6.13. Performance of Duties.................................................................46
SECTION 6.14. Limitation on Liability...............................................................46
SECTION 6.15. Reliance Upon Documents...............................................................46
SECTION 6.16. Successor Trust Collateral Agent......................................................47
SECTION 6.17. Compensation..........................................................................48
SECTION 6.18. Representations and Warranties of the Trust Collateral Agent and the Issuer...........48
SECTION 6.19. Waiver of Setoffs.....................................................................49
SECTION 6.20. Control by the Trustee................................................................49
ii
Table of Contents
(continued)
Page
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ARTICLE VII. NOTEHOLDERS' LISTS AND REPORTS...............................................................49
SECTION 7.1. Issuer to Furnish to Trustee Names and Addresses of Noteholders.......................49
SECTION 7.2. Preservation of Information...........................................................49
ARTICLE VIII. ACCOUNTS, DISBURSEMENTS AND RELEASES.........................................................49
SECTION 8.1. Collection of Money...................................................................49
SECTION 8.2. Release of Trust Estate...............................................................50
SECTION 8.3. Opinion of Counsel....................................................................50
ARTICLE IX. SUPPLEMENTAL INDENTURES......................................................................51
SECTION 9.1. Supplemental Indentures Without Consent of Noteholders................................51
SECTION 9.2. Supplemental Indentures with Consent of Noteholders...................................51
SECTION 9.3. Execution of Supplemental Indentures..................................................53
SECTION 9.4. Effect of Supplemental Indenture......................................................53
SECTION 9.5. Reference in Notes to Supplemental Indentures.........................................54
ARTICLE X. REDEMPTION OF NOTES..........................................................................54
SECTION 10.1. Redemption............................................................................54
SECTION 10.2. Form of Redemption Notice.............................................................54
SECTION 10.3. Notes Payable on Redemption Date......................................................55
SECTION 10.4. Limited Amortization..................................................................55
ARTICLE XI. THE ADMINISTRATIVE AGENT.....................................................................55
SECTION 11.1. Appointment...........................................................................55
SECTION 11.2. Delegation of Duties..................................................................56
SECTION 11.3. Exculpatory Provisions................................................................56
SECTION 11.4. Reliance by Administrative Agent......................................................56
SECTION 11.5. Notices...............................................................................57
SECTION 11.6. Non-Reliance on Administrative Agent and Other Noteholders............................57
SECTION 11.7. Indemnification.......................................................................57
SECTION 11.8. Administrative Agent in its Individual Capacity.......................................58
SECTION 11.9. Successor Administrative Agent........................................................58
ARTICLE XII. MISCELLANEOUS................................................................................59
SECTION 12.1. Compliance Certificates and Opinions, Etc.............................................59
SECTION 12.2. Form of Documents Delivered to Trustee................................................60
SECTION 12.3. Acts of Noteholders...................................................................61
SECTION 12.4. Notices, Etc., to Trustee, Issuer and Rating Agencies.................................61
SECTION 12.5. Notices to Noteholders; Waiver........................................................62
SECTION 12.6. Borrowings; Swingline Borrowings......................................................62
SECTION 12.7. Additional Commitments; Reallocation of Certain Commitments...........................66
SECTION 12.8. Effect of Headings and Table of Contents..............................................66
SECTION 12.9. Successors and Assigns................................................................66
SECTION 12.10. Separability..........................................................................67
SECTION 12.11. Legal Holidays........................................................................67
iii
Table of Contents
(continued)
Page
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SECTION 12.12. Governing Law.........................................................................67
SECTION 12.13. Counterparts..........................................................................67
SECTION 12.14. Recording of Indenture................................................................67
SECTION 12.15. Trust Obligation......................................................................67
SECTION 12.16. No Petition...........................................................................68
SECTION 12.17. Inspection............................................................................68
SECTION 12.18. Effectiveness of Amendment and Restatement............................................68
SECTION 12.19. Class D and Class E Note Proceeds.....................................................68
Exhibits
EXHIBIT A-1 Form of Class A-1 Note
EXHIBIT A-2 Form of Class A-2 Note
EXHIBIT A-3 Form of Class S Note
EXHIBIT A-4 Form of Class B Note
EXHIBIT A-5 Form of Class C Note
EXHIBIT A-6 Form of Class D Note
EXHIBIT A-7 Form of Class E Note
EXHIBIT B Form of Interest Rate Hedge Assignment Acknowledgment
EXHIBIT C Form of Interest Rate Cap
EXHIBIT D Form of Transfer Request
EXHIBIT E Form of Borrowing Base Confirmation
SCHEDULES
SCHEDULE 1 Approved Hedge Counterparties
SCHEDULE 2 Class Credit Score Enhancement Rate
SCHEDULE 3 Cumulative Net Loss Ratio Triggers
SCHEDULE 4 Approved Trustees
ANNEX
ANNEX A Defined Terms
ANNEX B Issuer Representations
iv