RECEIVABLES FINANCING AGREEMENT
dated as of March 31, 1999
among
AMERICREDIT WAREHOUSE TRUST,
as Borrower
AMERICREDIT FINANCIAL SERVICES, INC.,
individually and as Servicer and Custodian,
AMERICREDIT FUNDING CORP.,
AMERICREDIT CORPORATION OF CALIFORNIA,
THE LENDERS PARTIES HERETO,
CREDIT SUISSE FIRST BOSTON, NEW YORK BRANCH,
as Agent,
and
BANK ONE, N.A.,
as Backup Servicer and Collateral Agent
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RECEIVABLES FINANCING AGREEMENT
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THIS RECEIVABLES FINANCING AGREEMENT is made and entered into as of March
31, 1999, among AMERICREDIT WAREHOUSE TRUST, a Delaware business trust (the
"Borrower"), AMERICREDIT FINANCIAL SERVICES, INC., a Delaware corporation,
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individually ("AFS") and as initial Servicer and Custodian, AMERICREDIT FUNDING
---
CORP., a Delaware corporation ("AFC"), AMERICREDIT CORPORATION OF CALIFORNIA, a
---
California corporation ("ACC"), each NONCOMMITTED LENDER (as hereinafter
---
defined) FROM TIME TO TIME PARTY HERETO, each COMMITTED LENDER (as hereinafter
defined) FROM TIME TO TIME PARTY HERETO, CREDIT SUISSE FIRST BOSTON, NEW YORK
BRANCH ("CSFB"), as agent (the "Agent") for the Lenders (as hereinafter
---- -----
defined), and BANK ONE, N.A., a national banking association as Backup Servicer
and Collateral Agent.
BACKGROUND
1. The Borrower desires that the Lenders extend financing to the Borrower
on the terms and conditions set forth herein.
2. The Lenders are willing to provide such financing on the terms and
conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual agreements
herein contained, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1 Defined Terms. As used in this Agreement, the following terms
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have the following meanings:
"ACC" has the meaning set forth in the Preamble.
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"Accountants' Report" has the meaning set forth in Section 8.11(a).
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"Accrued Expenses" means, on any day, the aggregate of all Yield, Usage
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Fee, Backup Servicer Fee and Servicing Fee accrued and unpaid on such day.
"Adjusted Commitment Percentage" means, for a Committed Lender with respect
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to a specific Noncommitted Lender, the Commitment of such Committed Lender as a
percentage of the Maximum Purchase Amount of such Noncommitted Lender.
"Advance" means any amount disbursed by any Lender to the Borrower under
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this
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Agreement.
"Advance Date" means the date any Advance is made under Section 2.3.
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"Advance Request" has the meaning set forth in Section 2.2.
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"Adverse Claim" means any claim of ownership or any Lien, title retention,
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trust or other charge or encumbrance, or other type of preferential arrangement
having the effect or purpose of creating a Lien, other than the security
interest created under this Agreement.
"AFC" has the meaning set forth in the Preamble.
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"Affected Person" has the meaning set forth in Section 6.1(a).
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"Affiliate" of any Person means any other Person that directly or
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indirectly controls, is controlled by or is under common control with such
Person (excluding any trustee under, or any committee with responsibility for
administering, any employee benefit plan). A Person shall be deemed to be
"controlled by" any other Person if such other Person controls such Person
within the meaning of Section 15 of the Securities Act of 1933, as amended, or
Section 20 of the Exchange Act.
"AFS" has the meaning set forth in the Preamble.
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"Agent" has the meaning set forth in the Preamble.
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"Agent's Account" has the meaning set forth in Section 5.1.
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"Aggregate Outstanding Principal Balance" means, with respect to any group
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of Receivables as of any day, the sum of the outstanding Principal Balances of
all such Receivables as at the close of business on the immediately preceding
day.
"Agreement" means this Receivables Financing Agreement (including the Fee
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Letter and the Joinder Supplements hereto), as it may be amended, supplemented
or otherwise modified from time to time.
"Allocations" has the meaning set forth in Section 3.3(a).
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"Alpine Base Rate" means a fluctuating rate per annum as shall be in effect
----------------
from time to time, which rate shall be at all times equal to the highest of:
(a) the rate of interest announced publicly by the Alpine
Funding Agent in New York, New York, from time to time
as the Alpine Funding Agent's base commercial lending
rate;
Page 4
(b) 1/2 of one percent above the latest three-week moving
average of secondary market morning offering rates in
the United States for three-month certificates of
deposit of major United States money market banks, such
three-week moving average being determined weekly on
each Monday (or, if such day is not a business day, on
the next succeeding business day) for the three-week
period ending on the previous Friday by the Alpine
Funding Agent on the basis of such rates reported by
certificate of deposit dealers to and published by the
Federal Reserve Bank of New York or, if such
publication shall be suspended or terminated, on the
basis of quotations for such rates received by the
Alpine Funding Agent from three New York, New York
certificate of deposit dealers of recognized standing
selected by the Alpine Funding Agent, in either case
adjusted to the nearest 1/4 of one percent or, if there
is no nearest 1/4 of one percent, to the next higher
1/4 of one percent; and
(c) 1/2 of one percent above the Alpine Federal Funds Rate.
"Alpine Federal Funds Rate" means, for any period, a fluctuating rate per
-------------------------
annum equal for each day during such period to the weighted average of the rates
on overnight federal funds transactions with members of the Federal Reserve
System arranged by federal funds brokers, as published for such day (or, if such
day is not a Business Day, for the next preceding Business Day) by the Federal
Reserve Bank of New York, or, if such rate is not so published for any day which
is a Business Day, the average of the quotations for such day on such
transactions received by the Alpine Funding Agent from three federal funds
brokers of recognized standing selected by it.
"Alpine LIBOR Rate" means, for any Accrual Period, a rate per annum equal
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to the rate for deposits in Dollars for a term equal to such Accrual Period
(commencing on the first day of such Fixed Period) which appears on Telerate
Page 3750 as of 11:00 A.M. (London time) on the second Business Day prior to the
commencement of such Accrual Period. If such rate does not appear on Telerate
Page 3750, a rate per annum at which deposits in Dollars are offered by the
principal office of Credit Suisse First Boston in London, England to prime banks
in the London interbank market at 11:00 A.M. (London time) two Business Days
before the first day of such Accrual Period for delivery on such first day and
for a period equal to such Accrual Period.
"AmeriCredit Corp." means AmeriCredit Corp., a Texas corporation.
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"AmeriCredit Score" means, with respect to a Receivable, the credit score
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for the related Obligor, determined in accordance with the Servicing Procedures
and Credit Manual (as in effect from time to time).
Page 5
"Amount Financed" means, with respect to a Receivable, the aggregate amount
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of credit extended under such Receivable to pay, or to refinance the purchase
price of the Financed Vehicle and related costs, including amounts advanced in
respect of accessories, insurance premiums (subject to Section 8.4(c)), service
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and warranty contracts, other items customarily financed as part of retail
automobile installment sale contracts or promissory notes, and related costs.
"Annual Percentage Rate" or "APR" means, with respect to a Receivable, the
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rate per annum of finance charges stated in such Receivable as the "annual
percentage rate" (within the meaning of the Federal Truth-in-Lending Act). If,
after the applicable Purchase Date, the rate per annum with respect to a
Receivable as of such Purchase Date is reduced as a result of (a) an insolvency
proceeding involving the relevant Obligor or (b) pursuant to the Soldiers' and
Sailors' Civil Relief Act of 1940, the "Annual Percentage Rate" or "APR" shall
refer to such reduced rate.
"Available Purchase Amount" of a Noncommitted Lender means the aggregate of
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the unutilized Commitments of the Committed Lenders with respect to such
Noncommitted Lender.
"Average Servicing Portfolio" means as of any date, the average of the
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Servicing Portfolio for the six preceding Collection Periods.
"Backup Servicer" means Bank One, N.A. solely in its capacity as Backup
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Servicer, together with its permitted successors and assigns in such capacity.
"Backup Servicer Fee" means, for any Distribution Date, the amount payable
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to each of the Backup Servicer and Collateral Agent as its regular fee on such
Distribution Date pursuant to the Backup Servicer/Collateral Agent Fee Letter.
"Backup Servicer/Collateral Agent Fee Letter" means (a) that certain
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schedule of fees of Bank One, N.A., acknowledged by AFS and the Borrower, and
consented to by the Agent, as the same may be amended, supplemented or otherwise
modified by the parties thereto with the consent of the Agent and (b) any letter
agreement(s) or schedule of fees entered into by AFS and the Borrower, with the
consent of the Agent, with a substitute Backup Servicer and/or Collateral Agent
in replacement of the schedule of fees referred to in clause (a) above relating
to fees payable to such substitute Backup Servicer and/or Collateral Agent, as
the case may be.
"Backup Servicing/Collateral Agent Fee Rate" has the meaning set forth in
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the Backup Servicer/Collateral Agent Fee Letter.
"Bank Rate" for any Advance means a rate per annum equal to 1.25% per annum
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above the Eurodollar Rate for each Advance or portion thereof; provided,
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however, that
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Page 6
in the case of
(a) any Fixed Period on or after the first day on which a Committed
Lender shall have notified the Agent that the introduction of or any
change in or in the interpretation of any law or regulation makes it
unlawful, or any central bank or other governmental authority asserts
that it is unlawful, for such Committed Lender to fund such Advance at
the Bank Rate set forth above (and such Committed Lender shall not have
subsequently notified the Agent that such circumstances no longer
exist),
(b) any Fixed Period of one to (and including) 29 days, in the event
the Eurodollar Rate is not reasonably available to the Agent for such a
Fixed Period,
(c) any Fixed Period as to which the related Advance will not be
funded by issuance of commercial paper, as determined by the Agent (on
behalf of a Noncommitted Lender) later than 12:00 noon (New York City
time) on the second Business Day preceding the first day of such Fixed
Period, or
(d) any Fixed Period for an Advance the principal amount of which
allocated to the Committed Lenders in the aggregate is less than
$1,000,000,
the "Bank Rate" shall be a floating rate per annum equal to the Alternate Base
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Rate in effect on each day of such Fixed Period; provided, further, that the
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Agent (with the consent of the Lenders) and the Borrower may agree in writing
from time to time upon a different "Bank Rate."
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"Bank Rate Allocation" has the meaning set forth in Section 3.3(a).
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"Bankruptcy Code" means the Bankruptcy Code, 11 U.S.C. (S) 101, et seq., as
--------------- -- ---
amended.
"Borrower" has the meaning set forth in the Preamble.
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"Borrower Account Collateral" has the meaning set forth in Section 9.1(c).
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"Borrower Assigned Agreements" has the meaning set forth in Section 9.1(b).
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"Borrowing Base" means, on any day, the excess of (a) the sum of (i) the
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Aggregate Outstanding Principal Balance as of such day of all Transferred
Receivables which are Eligible Receivables on such day, plus (ii) the amount on
----
deposit in the Collateral Account on such day, plus (iii) (without duplication)
----
the aggregate of the amount on deposit in the Collection Account available for
distribution pursuant to Section 3 of the Security Agreement on such day and the
amount on deposit in the Lockbox Account on such day, over (b) the Required
----
Holdback in effect on such day.
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"Borrowing Base Confirmation" has the meaning set forth in Section 7.3(g).
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"Borrowing Base Deficiency" has the meaning set forth in Section 14.1(e).
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"Borrower Collateral" has the meaning set forth in Section 9.1.
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"Business Day" shall mean any day on which (a) commercial banks in New York
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City, New York, Columbus, Ohio or Fort Worth, Texas are not authorized or
required to be closed, and (b) in the case of a Business Day which relates to a
Eurodollar Advance, dealings are carried on in the London interbank Eurodollar
market.
"Certificates" has the meaning ascribed to such term in the Trust
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Agreement.
"Change of Control" means a change resulting when any Unrelated Person or
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any Unrelated Persons, acting together, that would constitute a Group together
with any Affiliates or Related Persons thereof (in each case also constituting
Unrelated Persons) shall at any time either (i) Beneficially Own more than 30%
of the aggregate voting power of all classes of Voting Stock of AmeriCredit
Corp. or (ii) succeed in having sufficient of its or their nominees elected to
the Board of Directors of AmeriCredit Corp. such that such nominees when added
to any existing director remaining on the Board of Directors of AmeriCredit
Corp. after such election who is an Affiliate or Related Person of such Person
or Group, shall constitute a majority of the Board of Directors of AmeriCredit
Corp. As used herein, (a) "Beneficially Own" shall mean "beneficially own" as
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defined in Rule 13d-3 of the Exchange Act, or any successor provision thereto;
provided, however, that, for purposes of this definition, a Person shall not be
deemed to Beneficially Own securities tendered pursuant to a tender or exchange
offer made by or on behalf of such Person or any of such Person's Affiliates
until such tendered securities are accepted for purchase or exchange; (b)
"Group" shall mean a "group" for purposes of Section 13(d) of the Exchange Act;
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(c) "Unrelated Person" shall mean at any time any Person other than AmeriCredit
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Corp. or any of its Subsidiaries and other than any trust for any employee
benefit plan of AmeriCredit Corp. or any of its Subsidiaries; (d) "Related
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Person" of any Person shall mean any other Person owning (1) 5% or more of the
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outstanding common stock of such Person or (2) 5% or more of the Voting Stock of
such Person; and (e) "Voting Stock" of any Person shall mean the capital stock
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or other indicia of equity rights of such Person which at the time has the power
to vote for the election of one or more members of the Board of Directors (or
other governing body) of such Person.
"Clean-Up Period" shall mean the period commencing on the date of the
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initial Advance hereunder and ending on June 30, 1999 and thereafter, each
calendar quarter.
"Clean-Up Requirement" means the obligation of the Borrower to reduce to
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zero
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the outstanding principal amount of all Advances for 5 consecutive days during
each Clean-Up Period.
"Closing Date" means the Effective Date.
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"Collateral" means the Transferred Receivables in the Total Receivables
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Pool together with the Other Conveyed Property.
"Collateral Account" means the account designated as the Collateral Account
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in, and which is established and maintained pursuant to, Section 8.17(c).
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"Collateral Agent" means Bank One, N.A. solely in its capacity as
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Collateral Agent, together with its permitted successors and assigns in such
capacity.
"Collateral Insurance" means a vendor's single interest or other collateral
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protection insurance policy with respect to Financed Vehicles, which policy by
its terms insures against physical damage in the event any Obligor fails to
maintain physical damage insurance with respect to the related Financed Vehicle.
"Collateral Receipt" means a Custodian's Acknowledgment in the form of
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Exhibit A to the Custodian Agreement.
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"Collected Funds" means, with respect to any Determination Date, the amount
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of funds in the Collection Account representing collections on the Total
Receivables Pool during the related Collection Period, including all Recoveries
with respect thereto collected during the related Collection Period (but
excluding any Purchase Amounts).
"Collection Account" means the account designated as the Collection Account
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in, and which is established and maintained pursuant to, Section 8.17(a).
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"Collection Period" means any calendar month and, with respect to a
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Determination Date or a Distribution Date, the calendar month preceding the
month in which such Determination Date or Distribution Date occurs (such
calendar month being referred to as the "related" Collection Period with respect
to such Determination Date or Distribution Date) or, in the case of the initial
Distribution Date and Determination Date, the period commencing at the opening
of business on the Closing Date and ending at the end of the calendar month
following the calendar month in which the Closing Date occurs. Any amount stated
"as of the close of business on the last day of a Collection Period" shall give
effect to the following calculations as determined as of the end of the day on
such last day: (i) all applications of Collected Funds and Purchase Amounts, and
(ii) all distributions.
"Collection Records" means all manually prepared or computer generated
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records relating to collection efforts or payment histories with respect to the
Transferred
Page 9
Receivables.
"Commercial Paper Rate" for Advances means, to the extent a Noncommitted
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Lender funds such Advances by issuing commercial paper, the sum of (a) the
weighted average of the rates at which commercial paper notes of such
Noncommitted Lender issued to fund such Advances may be sold by any placement
agent or commercial paper dealer selected by such Noncommitted Lender, as agreed
in good faith between each such agent or dealer and such Noncommitted Lender;
provided if the rate (or rates) as agreed between any such agent or dealer and
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such Noncommitted Lender is a discount rate (or rates), then such rate shall be
the rate (or if more than one rate, the weighted average of the rates) resulting
from converting such discount rate (or rates) to an interest-bearing equivalent
rate per annum plus (b) any and all commissions of placement agents and
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commercial paper dealers in respect of commercial paper issued to fund the
making or maintenance of any Advance plus (c) any and all reasonable costs and
----
expenses of any issuing and paying agent or other Person responsible for the
administration of such Noncommitted Lender's commercial paper program in
connection with the preparation, completion, issuance, delivery or payment of
commercial paper issued to fund the making or maintenance of any Advance. Each
Noncommitted Lender shall notify the Agent of its Commercial Paper Rate
applicable to any Advance promptly after the determination thereof.
"Commitment" means, for any Committed Lender, the maximum amount of such
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Committed Lender's commitment to fund Advances hereunder, as set forth on the
Joinder Supplement or in the assignment documentation by which such Committed
Lender became a party to this Agreement or assumed the Commitment (or a portion
thereof) of another Committed Lender, as such amount may be adjusted from time
to time pursuant to Section 2.5 or pursuant to assignment documentation executed
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by such Committed Lender and its assignee and delivered pursuant to Section 16.2
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of this Agreement. In the event that a Committed Lender maintains a portion of
its Commitment hereunder with respect to more than one Noncommitted Lender, such
Committed Lender shall be deemed to hold separate Commitments hereunder in each
such capacity.
"Commitment Percentage" means, for a Committed Lender, such Committed
---------------------
Lender's Commitment as a percentage of the aggregate Commitments of all
Committed Lenders.
"Commitment Termination Date" means March 29, 2000, as such date may be
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extended from time to time as agreed in writing between the Borrower, the
Servicer, the Agent and the Lenders.
"Committed Lender" means, with respect to a Noncommitted Lender, each
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financial institution party to a Joinder Supplement which Joinder Supplement
designates such financial institution as a "Committed Lender" with respect to
such Noncommitted
Page 10
Lender, and any assignee of such Committed Lender pursuant to Article XVI to the
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extent such assignee has assumed a portion of the Commitment of such Committed
Lender.
"Contingent Liability" means any agreement, undertaking or arrangement by
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which any Person guarantees, endorses or otherwise becomes or is contingently
liable upon (by direct or indirect agreement, contingent or otherwise, to
provide funds for payment, to supply funds to, or otherwise to invest in, a
debtor, or otherwise to assure a creditor against loss) the indebtedness,
obligation or any other liability of any other Person (other than by
endorsements of instruments in the course of collection), or guarantees the
payment of dividends or other distributions upon the shares of any other Person.
The amount of any Person's obligation under any Contingent Liability shall
(subject to any limitation set forth therein) be deemed to be the outstanding
principal amount (or maximum outstanding principal amount, if larger) of the
debt, obligation or other liability guaranteed thereby.
"CP Allocation" has the meaning set forth in Section 3.3(a).
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"Cram Down Loss" means, with respect to a Receivable, if a court of
--------------
appropriate jurisdiction in an insolvency proceeding shall have issued an order
reducing the amount owed on such Receivable or otherwise modifying or
restructuring the scheduled payments to be made on such Receivable, an amount
equal to the excess of the principal balance of such Receivable immediately
prior to such order, over the principal balance of such Receivable as so
----
reduced. A "Cram Down Loss" shall be deemed to have occurred on the date of
issuance of such order.
"CSFB" has the meaning set forth in the Preamble.
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"CSFB Roles" has the meaning set forth in Section 18.11.
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"Custodial Fee Rate" means (a) if AFS is the Custodian, 0% and (b) if a
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Person other than AFS is the Custodian, a rate agreed to by such Person and the
Agent.
"Custodian" means AFS in its capacity as Custodian under the Custodian
---------
Agreement, and its permitted successors and assigns in such capacity.
"Custodian Agreement" means the Custodian Agreement dated as of the date
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hereof among the Custodian, the Collateral Agent and the Agent, including all
permitted amendments, modifications and supplements thereto.
"Dealer" means a seller of new or used automobiles, light duty trucks,
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minivans or sport utility vehicles that originated one or more of the
Receivables in the Total Receivables Pool and sold the respective Receivable,
directly or indirectly, to a Seller.
Page 11
"Dealer Agreement" means an agreement by and among a Seller and a Dealer
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relating to the sale of Receivables to such Seller and all documents and
instruments relating thereto.
"Dealer Assignment" means, with respect to a Transferred Receivable, the
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executed assignment executed by a Dealer conveying such Receivable to a Seller.
"Default Rate" means a rate per annum equal to the Alternate Base Rate (but
------------ --- -----
not less than the Yield (if any) in effect for the related monetary obligation),
plus a margin of 2%.
----
"Defaulted Receivable" means, with respect to a Transferred Receivable as
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of any date, a Receivable with respect to which (i) all or any portion in excess
of 5% of a Scheduled Payment is more than 90 days past due, (ii) the Servicer
has repossessed the related Financed Vehicle (and any applicable redemption
period has expired), (iii) the Obligor has been identified in the records of the
Servicer as being the subject of a current bankruptcy proceeding or (iv) such
Receivable is in default and the Servicer has charged-off such Receivable in
accordance with its standard policies or otherwise has determined in good faith
that payments thereunder are not likely to be resumed.
"Deficiency Amount" means, as of any date, an amount equal to the product
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of (x) the Deficiency Percentage, (y) the Aggregate Outstanding Principal
Balance of Eligible Receivables in the Total Receivables Pool as of such date
and (z) 2.0.
"Deficiency Percentage" means, as of any date, the positive excess (rounded
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upward to the nearest 1.0%), if any, of (a) the sum of (i) 8.75% plus (ii) the
----
Total Expense Percentage plus (iii) the weighted (on the basis of notional
----
amounts) average Interest Rate Cap Strike Prices for the Interest Rate Hedges in
effect on such date plus (iv) 1.25%, over (b) the weighted average APR for all
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Receivables in the Total Receivables Pool.
"Delinquency Ratio" means, as of any date, the ratio (expressed as a
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percentage) computed by dividing:
(a) the sum of (i) the Aggregate Outstanding Principal Balance
of Receivables in the Total Receivables Pool which were
Defaulted Receivables as of the close of business on
the last day of the Collection Period immediately
preceding such date plus (ii) without duplication of
----
amounts included in (i), the Aggregate Outstanding
Principal Balance of Receivables in the Total
Receivables Pool which were Delinquent Receivables as
of the close of business on the last day of such
immediately preceding Collection Period
Page 12
by
--
(b) the sum of the Aggregate Outstanding Principal Balance of
all Receivables in the Total Receivables Pool as of the
close of business on the last day of such immediately
preceding Collection Period plus, without duplication,
----
if a Take-Out Securitization has occurred during such
immediately preceding Collection Period, the Aggregate
Outstanding Principal Balance of all Transferred
Receivables which were included in such Take-Out
Securitization.
The Delinquency Ratio shall be determined on each Determination Date and shall
remain in effect until recalculated on the next succeeding Determination Date;
provided that, on any date that no Advances are outstanding and no Yield is
owing, the Delinquency Ratio on such date shall be deemed to be zero.
"Delinquent Receivable" means a Receivable with respect to which more than
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5% of a Scheduled Payment is more than 30 days past due.
"Determination Date" means, with respect to a Collection Period, the fourth
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Business Day prior to the related Distribution Date.
"Distribution Date" means the 15th day of each calendar month, or if such
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15th day is not a Business Day, the next succeeding Business Day, commencing May
17, 1999.
"Dollar(s)" and the sign "$" mean lawful money of the United States of
--------- -
America.
"Effective Date" has the meaning set forth in Section 7.1.
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"Eligible Account" means (i) a segregated trust account or (ii) a
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segregated direct deposit account, in each case, maintained with a depository
institution or trust company organized under the laws of the United States of
America, or any of the States thereof, or the District of Columbia, having a
certificate of deposit, short term deposit or commercial paper rating of at
least A-1+ by Standard & Poor's and P-1 by Moody's. In either case, such
depository institution or trust company shall (x) be CSFB or Bank One, N.A. or
(y) have been approved by the Agent, acting in its discretion, by written notice
to the Servicer.
"Eligible Assignee" has the meaning set forth in Section 16.1.
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"Eligible Receivable" means a Receivable that (i) was originated by AFS or
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ACC directly or by a Dealer for the retail sale or refinancing of a Financed
Vehicle in the ordinary course of its business and such Seller or Dealer (as the
case may be) had all necessary licenses and permits to originate Receivables in
the applicable state, and, if
Page 13
originated by a Dealer, was purchased by AFS or ACC from such Dealer under a
Dealer Agreement or pursuant to a Dealer Assignment and was validly assigned by
such Dealer to such Seller, or, with respect to any Receivable sold to the
Borrower by AFC, was purchased by AFC from AFS or ACC, (ii) has created or shall
create a valid, subsisting and enforceable first priority perfected security
interest in favor of AFS or ACC in the related Financed Vehicle (which security
interest has been assigned to the Borrower and shall be validly assignable by
the Borrower to the Collateral Agent on behalf of the Secured Parties), except
as enforceability may be limited by bankruptcy, insolvency, reorganization or
similar laws affecting the enforcement of creditors' rights generally, (iii) was
fully and properly executed by the parties thereto and contains customary and
enforceable provisions such as to render the rights and remedies of the holder
thereof adequate for realization against the collateral security, (iv) is a
Simple Interest Receivable or Pre-Computed Receivable which provides for level
monthly payments (provided that the payment in the first monthly period and the
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final monthly period of the life of the Receivable may be minimally different
from the level payment) which, if made when due, shall fully amortize the Amount
Financed over the original term, (v) provides for, in the event that such
contract is prepaid, a prepayment that fully pays the principal balance and
includes accrued but unpaid interest through the date of prepayment in an amount
at least equal to the Annual Percentage Rate, and (vi) except to the extent
permitted by this Agreement, has not been amended, waived or rewritten or
collections with respect thereto deferred or waived; and
(a) with respect to which all requirements of applicable
federal, state and local laws, and regulations thereunder (including,
without limitation, usury laws, the Federal Truth-in-Lending Act, the
Equal Credit Opportunity Act, the Fair Credit Billing Act, the Fair
Credit Reporting Act, the Fair Debt Collection Practices Act, the
Federal Trade Commission Act, the Magnuson-Moss Warranty Act, the
Federal Reserve Board's Regulations "B" and "Z", the Soldiers' and
Sailors' Civil Relief Act of 1940, and state adaptations of the
National Consumer Act and of the Uniform Consumer Credit Code and
other consumer credit laws and equal credit opportunity and disclosure
laws), in respect of such Receivable, the sale of the Financed Vehicle
related thereto and the sale of credit life and credit accident and
health insurance and any extended service contracts, if any, in
connection with such Receivable, have been complied with in all
material respects;
(b) that is a Dollar obligation of an Obligor domiciled in the
United States of America and that was originated and, if originated by
a Dealer, was sold by the Dealer to AFS or ACC, without any fraud or
material misrepresentation on the part of such Dealer or on the part
of the Obligor;
(c) which represents the genuine, legal, valid and binding
payment obligation of the Obligor thereon, enforceable by the holder
thereof in accordance with its terms, except (A) as enforceability may
be limited by
Page 14
bankruptcy, insolvency, reorganization or similar laws affecting the
enforcement of creditors' rights generally and by equitable
limitations on the availability of specific remedies, regardless of
whether such enforceability is considered in a proceeding in equity or
at law and (B) as such Receivable may be modified by the application
of the Soldiers' and Sailors' Civil Relief Act of 1940, as amended;
and all parties to such Receivable had full legal capacity to execute
and deliver such Receivable and all other documents related thereto
and to grant the security interest purported to be granted thereby;
(d) which is not due from the United States of America or any
State or from any agency, department, subdivision or instrumentality
thereof;
(e) with respect to which the information set forth in the
Schedule of Receivables has been produced from AFS's and, to the
extent it maintains separate computer records, AFC's or ACC's (as the
case may be) electronic ledger and was true and correct in all
material respects, and is a complete and accurate description, on the
relevant Purchase Date, of the Receivables sold to the Borrower on
such date; and with respect to which, on or prior to the relevant
Purchase Date, AFS and, to the extent it maintains separate computer
records, AFC or ACC (as the case may be) has appropriately marked its
computer records to indicate the sale to the Borrower of the
Receivables sold on such date and with respect to which the Monthly
Tape delivered by the Servicer to the Backup Servicer from time to
time was complete and accurate as of the date delivered and consistent
with the information set forth in the Schedule of Receivables with
respect to such Receivable;
(f) which (i) as of the related Advance Date, (A) had an
original maturity of at least 6 months but not more than 72 months,
(B) had an original Amount Financed of at least $1,000 and not more
than $50,000, (C) had an Annual Percentage Rate of at least 7.75% and
not more than 27.0%, and (D) was not more than 30 days past due; and
(ii) with respect to which no funds have been advanced with respect to
such Receivable by the Borrower, a Seller, the Servicer, any Dealer,
or anyone acting on behalf of any of them in order to cause such
Receivable to qualify under subclause (i)(D) of this clause (f);
---------------- ----------
(g) which has not been satisfied, subordinated or rescinded, and
the Financed Vehicle securing such Receivable has not been released
from the Lien of such Receivable in whole or in part;
(h) with respect to which no provision has been waived (except
to the extent permitted by this Agreement);
(i) except for any Lien granted by the Wells Fargo Documents (as
defined in the Intercreditor Agreement) which Lien shall be released
on the
Page 15
applicable Purchase Date, as to which neither any Seller nor the
Borrower has done anything to convey any right to any Person that
would result in such Person having a right to payments due under such
Receivable or otherwise to impair the rights of the Collateral Agent
on behalf of the Secured Parties in such Receivable or the proceeds
thereof;
(j) which has not been sold, transferred, assigned or pledged by
the Borrower to any Person other than hereunder; and no Dealer has a
participation in, or other right to receive, proceeds of such
Receivable and with respect to which neither AFS nor the Borrower has
taken any action to convey any right to any Person (other than
hereunder) that would result in such Person having a right to payments
received under the related Insurance Policy or the related Dealer
Agreement or Dealer Assignment or to payments due under such
Receivable;
(k) which is not subject to any right of rescission, setoff,
counterclaim or defense and no such right has been asserted or, to the
knowledge of the Borrower or of any Seller, threatened with respect
thereto;
(l) with respect to which no liens or claims have been filed for
work, labor or materials relating to a Financed Vehicle that are liens
prior to or equal or coordinate with, the security interest in the
Financed Vehicle granted by such Receivable;
(m) with respect to which no default, breach, violation or event
permitting acceleration thereof has occurred, and none of the
Borrower, the Servicer or any Seller has waived any of the foregoing;
(n) at the time of the origination of which the related Financed
Vehicle was covered by a comprehensive and collision insurance policy
(i) in an amount at least equal to the lesser of (a) its maximum
insurable value and (b) the Amount Financed, (ii) naming AFS or ACC,
as applicable, as loss payee and (iii) insuring against loss and
damage due to fire, theft, transportation, collision and other risks
generally covered by comprehensive and collision coverage and with
respect to which the Obligor is required to maintain physical loss and
damage insurance, naming AFS or ACC and its successors and assigns as
an additional insured party, and such Receivable permits the holder
thereof to obtain Force-Placed Insurance at the expense of the Obligor
if the Obligor fails to do so unless otherwise prohibited by the law
of the state in which the related contract was entered into;
(o) with respect to which, (i) immediately prior to the sale
thereof to the Borrower, the applicable Seller had, and has conveyed
to the Borrower, good and marketable title free and clear of all
liens, encumbrances, security interests
Page 16
and rights of others, and (ii) the sale and assignment thereof to the
Borrower has been perfected under the UCC;
(p) with respect to each of which a Receivable File is in the
possession of the Custodian and such Receivable File contains (i) the
fully executed original of such Receivable, (ii) a certificate of
insurance, an application form for insurance signed by the related
Obligor, or a signed representation letter from the Obligor named in
such Receivable pursuant to which such Obligor has agreed to obtain
physical damage insurance for the related Financed Vehicle, or copies
thereof, or a documented verbal confirmation by an insurance agent for
such Obligor of a policy number for an insurance policy for the
Financed Vehicle, (iii) the original Lien Certificate (indicating AFS
or ACC as first lienholder) or application therefor or a letter from
the applicable Dealer agreeing unconditionally to repurchase the
related Receivable if the certificate of title is not received by the
Servicer within 180 days (provided that the Lien Certificate is
--------
delivered to the Custodian within 180 days), and (iv) a credit
application or file of credit information regarding the Obligor, or a
copy thereof; each of such documents (if any) which is required to be
signed by the Obligor has been signed by the Obligor in the
appropriate spaces; and all blanks on any form have been properly
filled in and each form has otherwise been correctly prepared;
(q) which was not originated in, or is subject to the laws of,
any jurisdiction the laws of which would make unlawful, void or
voidable the sale, pledge, transfer and assignment of such Receivable
under this Agreement and with respect to which a Seller has not
entered into any agreement with any account debtor that prohibits,
restricts or conditions the assignment of any portion of such
Receivable;
(r) as to which all filings (including, without limitation, UCC
filings but subject to clause (p) above in the case of the applicable
----------
Lien Certificate) required to be made by any Person and actions
required to be taken or performed by any Person in any jurisdiction to
give the Collateral Agent, on behalf of the Secured Parties, a first
priority perfected Lien on such Receivable and the proceeds thereof
and the other Collateral related thereto have been made, taken or
performed;
(s) of which there is only one original executed copy;
(t) which constitutes chattel paper within the meaning of
the UCC;
(u) as to which no selection procedures adverse to the Investors
have been utilized in selecting such Receivable from all other similar
Receivables owned or originated by AFS and its Affiliates;
Page 17
(v) with respect to which, by the related Date and on each
relevant date thereafter, AFS or ACC or, to the extent it maintains
such records, AFC (as the case may be) will have caused the portions
of its servicing and other records relating to such Receivable to be
clearly and unambiguously marked to show that such Receivable
constitutes part of the Collateral and is subject to the Lien of the
Collateral Agent on behalf of the Secured Parties;
(w) which is not assumable by another Person in a manner which
would release the Obligor thereof from such Obligor's obligations to
the Borrower with respect to such Receivable;
(x) with respect to which the related Financed Vehicle had not
been repossessed;
(y) with respect to which the following is true:
The Lien Certificate for the related Financed Vehicle shows, or,
if a new or replacement Lien Certificate is being applied for with
respect to such Financed Vehicle, the Lien Certificate will be
received within 180 days of the related Purchase Date and will show,
AFS or ACC, as the case may be, named as the original secured party
under such Receivable and, accordingly, AFS or ACC, as the case may
be, will be the holder of a first priority security interest in such
Financed Vehicle. With respect to each Receivable for which the Lien
Certificate has not yet been returned from the Registrar of Titles,
AFS or ACC, as the case may be, has received written evidence from the
related Dealer or the Obligor that such Lien Certificate showing such
Seller as first lienholder has been applied for. If the Receivable was
originated in a state in which a filing or recording is required of
the secured party to perfect a security interest in motor vehicles,
such filings or recordings have been duly made to show AFS or ACC, as
the case may be, named as the original secured party under the related
Receivable;
(z) which is not a Defaulted Receivable;
(aa) which is not a Delinquent Receivable;
(bb) which is not secured by vehicles which are financed
repossessions; and
(cc) which was originated in the United States of America and, at
the time of origination, materially conformed to all requirements of
the Servicing Procedures and Credit Manual applicable to such
Receivable.
For purposes of this Agreement (including the computation from time to
time of
Page 18
the Borrowing Base), the eligibility of Receivables will be determined from time
to time, such that a Receivable that was an Eligible Receivable at one time but
that subsequently fails to meet all applicable eligibility requirements will no
longer be an Eligible Receivable (unless and until it again meets all applicable
eligibility requirements).
"Eligible Servicer" means AFS, the Backup Servicer or another Person which
-----------------
at the time of its appointment as Servicer (i) is servicing a portfolio of motor
vehicle retail installment sales contracts and/or motor vehicle installment
loans, (ii) is legally qualified and has the capacity to service the Transferred
Receivables, (iii) has demonstrated the ability professionally and competently
to service a portfolio of motor vehicle retail installment sales contracts
and/or motor vehicle installment loans similar to the Transferred Receivables
with reasonable skill and care, and (iv) is qualified and entitled to use,
pursuant to a license or other written agreement, and agrees to maintain the
confidentiality of, the software which the Servicer uses in connection with
performing its duties and responsibilities under this Agreement or otherwise has
available software which is adequate to perform its duties and responsibilities
under this Agreement.
"ERISA" means the U.S. Employee Retirement Income Security Act of 1974, as
-----
amended from time to time.
"Eurocurrency liabilities" has the meaning assigned to that term in
------------------------
Regulation D of the Board of Governors of the Federal Reserve System, as in
effect from time to time.
"Eurodollar Advance" means any Advance (or portion thereof) that bears
------------------
Yield computed by reference to the Eurodollar Rate.
"Eurodollar Rate Reserve Percentage" of any Lender for any Fixed Period in
----------------------------------
respect of which Yield is computed by reference to the Eurodollar Rate means the
reserve percentage applicable two Business Days before the first day of such
Fixed Period under regulations issued from time to time by the Board of
Governors of the Federal Reserve System (or any successor) (or if more than one
such percentage shall be applicable, the daily average of such percentages for
those days in such Fixed Period during which any such percentage shall be so
applicable) for determining the maximum reserve requirement (including, without
limitation, any emergency, supplemental or other marginal reserve requirement)
for such Lender with respect to liabilities or assets consisting of or including
Eurocurrency liabilities (or with respect to any other category of liabilities
that includes deposits by reference to which the yield rate on Eurocurrency
liabilities is determined) having a term equal to such Fixed Period.
"Event of Bankruptcy" shall be deemed to have occurred with respect to a
-------------------
Person if either:
(a) a case or other proceeding shall be commenced, without the
Page 19
application or consent of such Person, in any court, seeking the
liquidation, reorganization, debt arrangement, dissolution, winding up, or
composition or readjustment of debts of such Person, the appointment of a
trustee, receiver, custodian, liquidator, assignee, sequestrator or the
like for such Person or all or substantially all of its assets, or any
similar action with respect to such Person under any law relating to
bankruptcy, insolvency, reorganization, winding up or composition or
adjustment of debts, and such case or proceeding shall continue
undismissed, or unstayed and in effect, for a period of 60 consecutive
days; or an order for relief in respect of such Person shall be entered in
an involuntary case under the federal bankruptcy laws or other similar laws
now or hereafter in effect; or
(b) such Person shall commence a voluntary case or other proceeding
under any applicable bankruptcy, insolvency, reorganization, debt
arrangement, dissolution or other similar law now or hereafter in effect,
or shall consent to the appointment of or taking possession by a receiver,
liquidator, assignee, trustee, custodian, sequestrator (or other similar
official) for such Person or for any substantial part of its property, or
shall make any general assignment for the benefit of creditors, or shall
fail to, or admit in writing its inability to, pay its debts generally as
they become due, or, if a corporation or similar entity, its board of
directors shall vote to implement any of the foregoing.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
------------
"Face Amount" means, with respect to outstanding commercial paper, (i) the
-----------
face amount of any such commercial paper issued on a discount basis, and (ii)
the principal amount of, plus the amount of all interest accrued and to accrue
thereon to the stated maturity date of, any commercial paper issued on an
interest-bearing basis.
"Facility" has the meaning set forth in Section 2.1.
-------- -----------
"Facility Fee Rate" has the meaning set forth in the Fee Letter.
-----------------
"Facility Limit" means, on any day, the lesser of (x) $300,000,000 and (y)
--------------
the Total Commitment in effect on such day, as such Total Commitment may be
reduced or increased pursuant to Section 2.5. References to the unused portion
-----------
of the Facility Limit shall mean, at any time, the Facility Limit in effect at
such time, minus the sum of the then outstanding principal amount of Advances
-----
under this Agreement.
"Facility Termination Date" means the earliest to occur of (i) the date of
-------------------------
any termination of the Total Commitment, in whole, by the Borrower pursuant to
Section 2.5, (ii) the effective date on which the Facility is terminated
-----------
pursuant to Section 14.2, and (iii) the Commitment Termination Date.
------------
Page 20
"Facility Termination Event" means any of the events described in Section
-------------------------- -------
14.1.
----
"Fee Letter" has the meaning set forth in Section 3.4.
---------- -----------
"Fees" means all fees and other amounts payable to the Agent, on behalf of
----
itself, the Lenders and the Liquidity Providers, pursuant to the Fee Letter.
"Financed Vehicle" means any automobile, light duty truck, van, minivan or
----------------
sport utility vehicle, together with all accessories, additions and parts
constituting a part thereof and all accessions thereto.
"Fixed Period" means with respect to any Advance (or portion thereof):
------------
(a) the period commencing on the date of the initial funding of such
Advance (or such portion) and ending such number of days (not to exceed 69
days) thereafter as the Agent shall select in accordance with Section
-------
3.3(b), after consultation to the extent practicable with the Borrower; and
------
(b) thereafter, each period commencing on the last day of the
immediately preceding Fixed Period for such Advance (or such portion) and
ending such number of days (not to exceed 69 days) thereafter as the Agent
shall then select in accordance with Section 3.3(b), after consultation to
--------------
the extent practicable with the Borrower;
provided, however, that:
-------- -------
(i) any Fixed Period in respect of which Yield is computed by
reference to the Bank Rate shall be a period of from one to and
including 29 days (if reasonably available to the Agent), or a period
of one, two or three months, as the Borrower may select by written
notice to the Agent furnished not later than 12:00 noon (New York City
time) on the second Business Day preceding the first day of such Fixed
Period;
(ii) any such Fixed Period (other than a Fixed Period consisting
of one day) that would otherwise end on a day that is not a Business
Day shall be extended to the next succeeding Business Day (unless the
related Advance shall be accruing Yield at a rate determined by
reference to the Eurodollar Rate and the Fixed Period is one, two or
three months, in which case if such succeeding Business Day is in a
different calendar month, such Fixed Period shall instead be shortened
to the next preceding Business Day);
(iii) in the case of Fixed Periods of one day, (A) the initial
Fixed Period shall be the day of the initial funding of such Advance,
and (B) any
Page 21
subsequently occurring Fixed Period that is one day shall, if the
immediately preceding Fixed Period is more than one day, be the last
day of such immediately preceding Fixed Period, and if the immediately
preceding Fixed Period is one day, shall be the next day following
such immediately preceding Fixed Period; and
(iv) if any Fixed Period for any Advance that commences before
the Facility Termination Date would otherwise end on a date occurring
after the Facility Termination Date, such Fixed Period shall end on
the Facility Termination Date and the duration of each such Fixed
Period that commences on or after the Facility Termination Date, if
--
any, shall be of such duration as shall be selected by the Agent.
---
"Force-Placed Insurance" has the meaning set forth in Section 8.4(b).
---------------------- --------------
"GAAP" means generally accepted accounting principles set forth in the
----
opinions and pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board or in such other statements by such
other entity as may be approved by a significant segment of the accounting
profession, which are applicable to the circumstances as of any date of
determination.
"Indebtedness" of any Person means, without duplication:
------------
(a) all obligations of such Person for borrowed money and all
obligations of such Person evidenced by bonds, debentures, notes or other
similar instruments;
(b) all obligations, contingent or otherwise, relative to the face
amount of all letters of credit, whether or not drawn, and banker's
acceptances issued for the account of such Person;
(c) all obligations of such Person as lessee under leases that have
been or should be, in accordance with GAAP, recorded as capitalized lease
liabilities;
(d) all other items that, in accordance with GAAP, would be included
as liabilities on the liability side of the balance sheet of such Person as
of the date at which Indebtedness is to be determined;
(e) whether or not so included as liabilities in accordance with GAAP,
all obligations of such Person to pay the deferred purchase price of
property or services, and indebtedness (excluding prepaid interest thereon)
secured by a lien on property owned or being purchased by such Person
(including
Page 22
indebtedness arising under conditional sales or other title retention
agreements), whether or not such indebtedness shall have been assumed by
such Person or is limited in recourse; and
(f) all Contingent Liabilities of such Person in respect of any of the
foregoing.
"Indemnified Amounts" has the meaning set forth in Section 17.1.
------------------- ------------
"Indemnified Party" has the meaning set forth in Section 17.1.
----------------- ------------
"Independent Accountants" has the meaning set forth in Section 8.11(a).
----------------------- ---------------
"Insurance Add-On Amount" means the premium charged to the Obligor if the
-----------------------
Servicer obtains Force-Placed Insurance pursuant to Section 8.4.
-----------
"Insurance Policies" means, with respect to a Receivable, any insurance
------------------
policy (including the insurance policies described in clause (n) of the
----------
definition of "Eligible Receivable") benefiting the holder of the Receivable
-------------------
providing loss or physical damage, credit life, credit disability, theft,
mechanical breakdown or similar coverage with respect to the Financed Vehicle or
the Obligor.
"Intercreditor Agreement" means the Intercreditor Agreement dated as of the
-----------------------
date hereof among the Agent, Wells Fargo, the Borrower, the Collateral Agent and
AFS, including all permitted amendments, modifications and supplements thereto.
"Interest Rate Cap Strike Price" means, with respect to an Interest Rate
------------------------------
Hedge, the "strike price" set forth in such Interest Rate Hedge.
"Interest Rate Hedge" means any interest rate cap or other hedging
-------------------
mechanism which satisfies the requirements of Section 11.6.
------------
"Interest Rate Hedge Assignment Acknowledgment" means an acknowledgment in
---------------------------------------------
substantially the form of Exhibit C hereto executed by a counterparty to an
---------
Interest Rate Hedge (if other than CSFB) in favor of the Agent and the
Collateral Agent.
"Interim Distribution Date" means any Settlement Date, other than a
-------------------------
Distribution Date, on which the Collateral Agent shall pay principal, Yield and
certain other amounts in accordance with this Agreement and the Security
Agreement.
"Investor" means (i) all Lenders, (ii) all other owners by assignment (in
--------
accordance with Section 16.1) of an Advance and, to the extent of the undivided
------------
interests so purchased, all Participants (in accordance with Section 16.9) and
------------
(iii) the Agent and any subsequent holders of the Note (in accordance with
Section 16.5).
------------
Page 23
"Joinder Supplement" means an agreement among a Noncommitted Lender or
------------------
Committed Lender (as the case may be), the Borrower, AFS and the Agent in the
form of Exhibit F hereto (appropriately completed).
---------
"Lender" means any Noncommitted Lender or Committed Lender, and "Lenders"
------ -------
means, collectively, all Noncommitted Lenders and Committed Lenders.
"Level I Trigger Event" means, as of any date, that (x) a Portfolio Trigger
---------------------
Event has occurred on or prior to such date or (y) a Portfolio Default has
occurred prior to such date and such Portfolio Default has been cured or waived
in accordance with the related transaction documents.
"Level II Trigger Event" means, as of any date, the existence of a
----------------------
Portfolio Default on such date. A "Level II Trigger Event" shall be deemed to
exist so long as the underlying Portfolio Default is not cured or waived in
accordance with the related transaction documents.
"Level III Trigger Event" means, on any date, that the Servicer Delinquency
-----------------------
Ratio exceeds 14% on such date and a Level IV Trigger Event is not in effect on
such date; provided that such 14% shall be reduced to 12% with respect to
computations of the Servicer Delinquency Ratios as of the last day of the
February through September (inclusive) Collection Periods.
"Level IV Trigger Event" means, on any date, that the Servicer Delinquency
----------------------
Ratio exceeds 15% on such date; provided that such 15% shall be reduced to 13%
with respect to computations of the Servicer Delinquency Ratios as of the last
day of the February through September (inclusive) Collection Periods.
"Level V Trigger Event" means, on any date, that the Portfolio Net Loss
---------------------
Ratio exceeds 7% on such date and a Level VI Trigger Event is not in effect on
such date.
"Level VI Trigger Event" means, on any date, that the Portfolio Net Loss
----------------------
Ratio exceeds 7.5% on such date.
"Lien" means any security interest, lien, charge, pledge, preference,
----
equity or encumbrance of any kind, including tax liens, mechanics' liens and any
liens that attach by operation of law.
"Lien Certificate" means, with respect to a Financed Vehicle, an original
----------------
certificate of title, certificate of lien or other notification issued by the
Registrar of Titles of the applicable state to a secured party which indicates
that the lien of the secured party on the Financed Vehicle is recorded on the
original certificate of title. In any jurisdiction in which the original
certificate of title is required to be given to the Obligor, the term "Lien
Page 24
Certificate" shall mean only a certificate or notification issued to a secured
party.
"Liquidity Provider" means each Person who provides liquidity, credit
------------------
enhancement or a "back-stop" purchase facility to a Noncommitted Lender under a
Noncommitted Lender Liquidity Arrangement.
"Lockbox Account" has the meaning set forth in Section 8.2(d).
--------------- --------------
"Lockbox Agreement" means the Tri-Party Remittance Processing Agreement,
-----------------
dated as of the date hereof, by and among the Lockbox Bank, the Servicer and
Bank One, N.A., as Collateral Agent, as such agreements may be amended from time
to time in accordance with the provisions hereof and thereof, unless such
agreement shall be terminated in accordance with its terms, in which event
"Lockbox Agreement" shall mean such other agreement, in form and substance
acceptable to the Agent, among the Servicer, the Collateral Agent and the
Lockbox Bank.
"Lockbox Bank" means Bank One, Texas, N.A. or any other depository
------------
institution named by the Servicer and acceptable to the Agent.
"Maximum Interest Rate Cap Strike Price" means 5.75% per annum.
--------------------------------------
"Maximum Purchase Amount" of a Noncommitted Lender means the aggregate
-----------------------
Commitment of the Committed Lenders with respect to such Noncommitted Lender.
"Minimum Reserve Account Amount" means, on any date, the greater of (a)
------------------------------
$300,000 and (b) the product of 1.0% and the greater of (x) the Facility Limit
in effect on such date and (y) the sum of (i) the aggregate unpaid principal
amount of all Advances on such date plus (ii) the Required Holdback in effect on
----
such date.
"Monthly Extension Rate" means, with respect to any Determination Date, the
----------------------
fraction, expressed as a percentage, the numerator of which is the Aggregate
Outstanding Principal Balance of all Receivables in the Servicing Portfolio
whose payments are extended during the related Collection Period and the
denominator of which is the Aggregate Outstanding Principal Balance of all
Receivables in the Servicing Portfolio as of the close of business on the last
day of the Collection Period immediately preceding such related Collection
Period.
"Monthly Records" means all records and data maintained by the Servicer
---------------
with respect to the Transferred Receivables, including the following with
respect to each Transferred Receivable: the account number; the originating
Dealer; Obligor name; Obligor address; Obligor home phone number; Obligor
business phone number; original Principal Balance; original term; Annual
Percentage Rate; current Principal Balance; origination date; first payment
date; next payment due date; date of most recent payment; new/used
classification; collateral description; days currently delinquent;
Page 25
number of contract extensions (months) to date; amount of Scheduled Payment;
and, once available, current remaining term and current Insurance Policy
expiration date and past due late charges.
"Monthly Tape" means the computer tape or listing generated on behalf of
------------
the Borrower which contains the information set forth in the definition of
"Monthly Records" above and in a format acceptable to the Backup Servicer.
"Moody's" means Moody's Investors Service, Inc.
-------
"Noncommitted Lender" means each Structured Lender which shall become a
-------------------
party hereto pursuant to a Joinder Supplement duly executed by all parties
thereto.
"Noncommitted Lender Liquidity Arrangement" means each liquidity, credit
-----------------------------------------
enhancement or "back-stop" purchase or loan facility for a Noncommitted Lender
relating to this Agreement.
"Noncommitted Percentage" means, for a Noncommitted Lender, such
-----------------------
Noncommitted Lender's Maximum Purchase Amount as a percentage of the Facility
Limit.
"Note" means the promissory grid note, in the form of Exhibit B, made
---- ---------
payable to the order of the Agent, on behalf of the Investors.
"Note Register" has the meaning set forth in Section 16.5(a).
------------- ---------------
"Note Registrar" has the meaning set forth in Section 16.5(a).
-------------- ---------------
"Obligations" means all obligations (monetary or otherwise) of the Borrower
-----------
to the Lenders, the Agent, the Collateral Agent or any other Affected Person
arising under or in connection with this Agreement, the Note and each other
Transaction Document.
"Obligor" means a Person obligated to make payments with respect to a
-------
Transferred Receivable.
"Officer's Certificate" means, with respect to any Person which is not an
---------------------
individual, a certificate signed by the President, the Chief Financial Officer,
the Treasurer, any Assistant Treasurer or any Vice President of such Person.
"Official Body" means any government or political subdivision or any
-------------
agency, authority, regulatory body, bureau, central bank, commission, department
or instrumentality of any such government or political subdivision, or any
court, tribunal, grand jury or arbitrator, in each case whether foreign or
domestic.
Page 26
"Opinion of Counsel" means a written opinion of counsel reasonably
------------------
acceptable to the Agent which, unless otherwise provided herein, may be an
employee of the Person delivering such opinion.
"Other Conveyed Property" has the meaning set forth in the Purchase
-----------------------
Agreement.
"Participant" has the meaning set forth in Section 16.9.
----------- ------------
"Permitted Investment" means any one or more of the following types of
--------------------
investments:
(a) (i) direct interest-bearing obligations of, and interest-bearing
obligations guaranteed as to timely payment of principal and interest by,
the United States or any agency or instrumentality of the United States,
the obligations of which are backed by the full faith and credit of the
United States; and (ii) direct interest bearing obligations of, and
interest-bearing obligations guaranteed as to timely payment of principal
and interest by, the Federal National Mortgage Association or the Federal
Home Loan Mortgage Corporation, but only if, at the time of investment,
such obligations are assigned the highest credit rating by each Rating
Agency;
(b) demand or time deposits in, certificates of deposit of, or
bankers' acceptances issued by any depository institution or trust company
organized under the laws of the United States or any State thereof
(including any federal or state branch or agency of a foreign depository
institution or trust company) and subject to supervision and examination by
federal and/or state banking authorities (including, if applicable, the
Collateral Agent, the Agent or any agent thereof acting in its commercial
capacity); provided that the short-term unsecured debt obligations of such
--------
depository institution or trust company at the time of such investment, or
contractual commitment providing for such investment, are assigned the
highest credit rating by each Rating Agency;
(c) repurchase obligations pursuant to a written agreement (i) with
respect to any obligation described in clause (a) above, where the
Collateral Agent has taken actual or constructive delivery of such
obligation, and (ii) entered into with (x) CSFB or (y) the corporate trust
department of a depository institution or trust company organized under the
laws of the United States or any State thereof, the deposits of which are
insured by the Federal Deposit Insurance Corporation and the short-term
unsecured debt obligations of which are rated "A-1+" by Standard & Poor's
and "P-1" by Moody's (including, if applicable, the Collateral Agent, the
Agent or any agent thereof acting in its commercial capacity);
(d) securities bearing interest or sold at a discount issued by any
Page 27
corporation incorporated under the laws of the United States or any State
whose long-term unsecured debt obligations are assigned the highest credit
rating by each Rating Agency at the time of such investment or contractual
commitment providing for such investment; provided, however, that
-------- -------
securities issued by any particular corporation will not be Permitted
Investments to the extent that an investment therein will cause the then
outstanding principal amount of securities issued by such corporation and
held in the Collection Account and the Reserve Account to exceed 10% of the
value of Permitted Investments held in such accounts (with Permitted
Investments held in such accounts valued at par);
(e) commercial paper that (i) is payable in United States dollars and
(ii) is rated in the highest credit rating category by each Rating Agency;
(f) units of money market funds rated in the highest credit rating
category by each Rating Agency; or
(g) any other demand or time deposit, obligation, security or
investment (including, without limitation, a hedging arrangement) as may be
acceptable to the Agent, as evidenced by a writing to that effect (with a
copy to each Rating Agency).
Permitted Investments may be purchased by or through the Collateral Agent or any
of its Affiliates. All Permitted Investments shall be held in the name of the
Collateral Agent. No Permitted Investment shall have a "r" highlighter affixed
to its S&P rating.
"Person" means an individual, partnership, corporation (including a
------
business trust), joint stock company, trust, unincorporated association, joint
venture, government or any agency or political subdivision thereof or any other
entity.
"Portfolio Default" means the occurrence, with respect to securities issued
-----------------
on or after April 1, 1998, which are backed by automobile installment sales
contracts ("receivables") and with respect to which AFS or any Affiliate of AFS
is the servicer, of an "event of default" or similar event under any applicable
enhancement or insurance agreement or an "amortization event", "pay-out event"
or similar event under any applicable sale and servicing agreement or indenture
which event has the potential consequence, inter alia, under the related
----- ----
agreements of requiring the acceleration or early amortization of the related
securities or permitting the realization upon the receivables and/or other
collateral.
"Portfolio Net Losses" means with respect to any Collection Period, the
--------------------
aggregate amount of gross charge-offs of Receivables in the Servicing Portfolio
during such Collection Period net of all Recoveries with respect to any such
Receivables (including post-disposition amounts received on previously charged-
off Receivables), calculated in a manner consistent with the calculations of net
losses in AmeriCredit Corp.'s quarterly
Page 28
report on Form 10-Q for the period ended September 30, 1998.
"Portfolio Net Loss Ratio" means, as of any date, a fraction, expressed as
------------------------
a percentage, the numerator of which equals the product of 2.0 times the sum of
the Portfolio Net Losses for the six (6) preceding Collection Periods and the
denominator of which equals the Average Servicing Portfolio as of such date. The
Portfolio Net Loss Ratio shall be determined on each Determination Date and
shall remain in effect until recalculated on the next succeeding Determination
Date.
"Portfolio Trigger Event" means the occurrence of a "trigger event" or any
-----------------------
other event however denominated, with respect to securities issued on or after
April 1, 1998, which are backed by automobile installment sales contracts
("receivables") and with respect to which AFS or any Affiliate of AFS is the
servicer, which event is based on the performance of such receivables and has
the potential consequence under the related agreements of causing the amount
required to be retained in any related spread or reserve account or the level of
any other enhancement to be increased.
"Pre-Computed Receivable" means any Receivable under which the portion of a
-----------------------
payment allocable to earned interest (which may be referred to in the related
Receivable as an add-on finance charge) and the portion allocable to the Amount
Financed is determined according to the sum of periodic balances or the sum of
monthly balances or any equivalent method or are monthly actuarial receivables.
"Principal Balance" means, with respect to any Receivable, as of any date,
-----------------
the sum of the Amount Financed minus that portion of all amounts received by the
-----
Servicer with respect to such Receivable on or prior to such date and allocable
to principal in accordance with the terms of such Receivable minus any Cram Down
-----
Loss in respect of such Receivable plus the accrued and unpaid interest on such
----
Receivable.
"Purchase Amount" means, with respect to a Warranty Receivable purchased by
---------------
the Servicer or AFS pursuant to Section 8.7 or under the Purchase Agreement or a
-----------
Receivable which the Servicer purchased pursuant to Section 8.4, the Principal
-----------
Balance of such Receivable (including all accrued and unpaid interest on such
Receivable) as of the date of such purchase.
"Purchase Agreement" means the Master Receivables Purchase Agreement dated
------------------
as of the date hereof by and among the Borrower and the Sellers, including all
permitted amendments, modifications and supplements thereto.
"Purchase Date" has the meaning assigned to the term "Receivables Transfer
-------------
Date" in the Purchase Agreement.
"Rating Agencies" means Standard & Poor's and Moody's.
---------------
Page 29
"Receivable" means any right to payment from a Person, and includes without
----------
limitation the right to payment of any interest or finance charges and other
obligations of such Person with respect thereto.
"Receivable File" means, with respect to each Receivable in the Total
---------------
Receivables Pool, the documents, electronic entries, instruments and writings
set forth in clause (p) of the definition of "Eligible Receivable" herein.
----------
"Record Date" means, with respect to any Determination Date or Distribution
-----------
Date, the last day of the immediately preceding calendar month.
"Recoveries" means, with respect to any Defaulted Receivable, monies
----------
collected in respect thereof (other than Scheduled Payments collected from the
related Obligor which cause such Receivable to be no longer a Defaulted
Receivable), from whatever source, during any Collection Period, net of the sum
of any reasonable expenses incurred by the Servicer in connection with the
collection, repossession and disposition of the related Financed Vehicle and any
amounts required by law to be remitted to the related Obligor; provided that
--------
Recoveries with respect to any Defaulted Receivable shall in no event be less
than zero.
"Registrar of Titles" means, with respect to any state, the governmental
-------------------
agency or body responsible for the registration of, and the issuance of
certificates of title relating to, motor vehicles and liens thereon.
"Replacement Person" has the meaning set forth in Section 6.4.
------------------ -----------
"Required Holdback" means, as of any date, the sum of (i) the greater of
-----------------
(a) the product of (1) the Required Percentage and (2) the sum of (x) the
Aggregate Outstanding Principal Balance of Eligible Receivables in the Total
Receivables Pool on such date plus (y) the amount on deposit in the Collection
----
Account on such date plus (z) the amount on deposit in the Lockbox Account on
----
such date, and (b) $2,000,000, provided that the amount set forth in this clause
--------
(b) shall be deemed to be zero during any period that no Advances are
outstanding; plus (ii) the Deficiency Amount for such date.
----
"Required Lenders" means, at any time, (a) Noncommitted Lenders holding
----------------
Advances aggregating at least 51% of all Advances then owing to Noncommitted
Lenders, and (b) Committed Lenders having Commitments or, if no Commitments are
in effect, Advances, aggregating at least 51% of the Total Commitment or
Advances owing to Committed Lenders (as the case may be).
"Required Percentage" means 12%.
-------------------
"Required Reserve Account Amount" means, on any date, the greater of (a)
-------------------------------
the
Page 30
Minimum Reserve Account Amount and (b) the product of the Stated Percentage in
effect on such date and the sum of (i) the aggregate unpaid principal amount of
all Advances on such date plus (ii) the Required Holdback in effect on such
----
date.
"Reserve Account" means the account designated as the Reserve Account in,
---------------
and which is established and maintained pursuant to, Section 8.17(b).
---------------
"Reserve Account Shortfall" means, as of any date, an amount (if positive)
-------------------------
equal to the Required Reserve Account Amount on such date minus the amount on
-----
deposit in the Reserve Account on such date.
"Responsible Officer" means, with respect to any Person that is not an
-------------------
individual, the President, any Vice-President or Assistant Vice-President,
Corporate Trust Officer, the Treasurer or Assistant Treasurer, or the Controller
or Assistant Controller or Warehouse Manager of such Person, or any other
officer or employee having similar functions.
"Schedule of Receivables" has the meaning ascribed to such term in the
-----------------------
Purchase Agreement.
"Scheduled Payment" means, with respect to any Receivable, the periodic
-----------------
payment set forth in such Receivable (excluding, however, any portion of such
payment that represents late payment charges and payments in respect of taxes,
licenses or similar items).
"Secured Parties" means, collectively, the Agent, each Lender, the
---------------
Collateral Agent, each other Affected Person and their respective successors and
assigns.
"Security Agreement" means the Security and Collateral Agent Agreement
------------------
dated as of the date hereof among the Agent, the Collateral Agent, AFS and the
Borrower, including all amendments, modifications and supplements thereto.
"Seller" means each of AFS, AFC and ACC in its capacity as a Seller under
------
the Purchase Agreement, and "Sellers" means, collectively, AFS, AFC and ACC,
-------
each in such capacity.
"Servicer" means AFS or, as applicable, any successor servicer appointed
--------
pursuant to Section 13.3.
------------
"Servicer Delinquency Ratio" means, as of the last day of a Collection
--------------------------
Period, the ratio, expressed as a percentage, computed by dividing (i) the
Aggregate Outstanding Principal Balance on such date of each Receivable in the
Servicing Portfolio which is a Delinquent Receivable or a Receivable for which
the Financed Vehicle has been repossessed and the proceeds thereof have not been
realized by the Servicer by (ii) the
Page 31
Aggregate Outstanding Principal Balance of all Receivables in the Servicing
Portfolio on the last day of such Collection Period.
"Servicer Extension Notice" has the meaning set forth in Section 8.14.
------------------------- ------------
"Servicer Termination Event" has the meaning set forth in Section 13.1.
-------------------------- ------------
"Servicer's Certificate" means, with respect to each Determination Date, a
----------------------
certificate, completed by and executed on behalf of the Servicer, in accordance
with Section 8.9, substantially in the form attached hereto as Exhibit E.
----------- ---------
"Servicing Fee" means, as of any Distribution Date, an amount equal to the
-------------
product of (i) 1/12 of the Servicing Fee Rate and (ii) the average Aggregate
Outstanding Principal Balance of Receivables in the Total Receivables Pool for
each day during the Collection Period immediately preceding such Distribution
Date.
"Servicing Fee Rate" means 2%.
------------------
"Servicing Portfolio" means as of any date, the Aggregate Outstanding
-------------------
Principal Balance of all Receivables (whether or not thereafter sold or disposed
of) which are serviced by the Servicer or any of its Affiliates at such time,
calculated in a manner consistent with the calculation of the components of
Average Servicing Portfolio in the most recent Form 10-K or Form 10-Q of
AmeriCredit Corp.
"Servicing Procedures and Credit Manual" means AFS's written credit,
--------------------------------------
servicing and collections procedures delivered to the Agent prior to the Closing
Date, as amended from time to time in accordance herewith.
"Settlement Date" means, with respect to any Advance, (a) each Distribution
---------------
Date, (b) at the option of the Agent or the Borrower, the last day of the
current Fixed Period of such Advance or (c) the date on which the Borrower shall
prepay such Advance pursuant to Section 4.1 hereof.
-----------
"Simple Interest Method" means the method of allocating a fixed level
----------------------
payment on an obligation between principal and interest, pursuant to which the
portion of such payment that is allocated to interest is equal to the product of
the fixed rate of interest on such obligation multiplied by the period of time
(expressed as a fraction of a year, based on the actual number of days in the
calendar month and 365 days in the calendar year) elapsed since the preceding
payment under the obligation was made.
"Simple Interest Receivable" means a Receivable under which the portion of
--------------------------
the payment allocable to interest and the portion allocable to principal is
determined in accordance with the Simple Interest Method.
Page 32
"Standard & Poor's" or "S&P" means Standard & Poor's Ratings Services, a
----------------- ---
division of The McGraw-Hill Companies, Inc.
"Stated Percentage" means, on any date, the sum of (a) 4% plus (b) the
----------------- ----
lesser of (x) 6% and (y) the aggregate of each Percentage Add-On in effect on
------
such date (if any) as computed below:
If on such date (i) a Level I Trigger Event exists, the Percentage
Add-On related thereto shall be 2%; (ii) a Level II Trigger Event exists,
the Percentage Add-On related thereto shall be 6%; (iii) a Level III
Trigger Event exists, the Percentage Add-On related thereto shall be 2%;
(iv) a Level IV Trigger Event exits, the Percentage Add-On related thereto
shall be 6%; (v) a Level V Trigger Event exists, the Percentage Add-On
related thereto shall be 2%; and (vi) a Level VI Trigger Event exists, the
Percentage Add-On related thereto shall be 6%.
"Structured Lender" shall mean any Person whose principal business consists
-----------------
of issuing commercial paper, medium term notes or other securities to fund its
acquisition and maintenance of receivables, accounts, instruments, chattel
paper, general intangibles and other similar assets or interests therein and
which is required by any nationally recognized rating agency which is rating
such securities to obtain from its principal debtors an agreement such as that
set forth in Section 18.12(a) of this Agreement in order to maintain such
----------------
rating.
"Subsidiary" means, with respect to any Person, a corporation of which such
----------
Person and/or its other Subsidiaries own, directly or indirectly, such number of
outstanding shares as have more than 50% of the ordinary voting power for the
election of directors.
"Supplement" has the meaning ascribed to such term in the Purchase
----------
Agreement.
"Take-Out Securitization" means (a) a financing transaction of any sort
-----------------------
undertaken by the Borrower or any Affiliate of the Borrower secured, directly or
indirectly, by any Transferred Receivables or (b) any other asset
securitization, secured loans or similar transactions involving any Transferred
Receivables or any beneficial interest therein.
"Tangible Net Worth" means, with respect to any Person, the net worth of
------------------
such Person calculated in accordance with GAAP after subtracting therefrom the
aggregate amount of such Person's intangible assets, including, without
limitation, goodwill, franchises, licenses, patents, trademarks, tradenames,
copyrights and service marks.
"Taxes" has the meaning set forth in Section 5.1(b).
----- --------------
"Total Commitment" means the aggregate of the Commitments of all Committed
----------------
Page 33
Lenders.
"Total Expense Percentage" means, as of any date, the sum of (a) the
------------------------
Servicing Fee Rate plus (b) the Custodial Fee Rate plus (c) the Backup
---- ----
Servicing/Collateral Agent Fee Rate plus (d) the Facility Fee Rate.
----
"Total Receivables Pool" means all Receivables owned by the Borrower.
----------------------
"Transaction Documents" means this Agreement, the Note, the Fee Letter, the
---------------------
Custodian Agreement, the Purchase Agreement, the Lockbox Agreement, the
Intercreditor Agreement, the Security Agreement, the Trust Agreement, each
Interest Rate Hedge, and the other documents to be executed and delivered in
connection with this Agreement.
"Transferred Receivable" means each Receivable which appears on any
----------------------
Schedule of Receivables at any time hereafter submitted to the Borrower pursuant
to the Purchase Agreement, whether purchased by the Borrower or contributed to
the capital of the Borrower. Once a Receivable appears on any such Schedule of
Receivables it shall remain a Transferred Receivable; provided, however, that
-------- -------
any Receivable that is released from the Lien granted to the Collateral Agent
for the benefit of the Secured Parties pursuant to Section 9.5(f) shall not be a
--------------
"Transferred Receivable" after such Receivable is so released.
----------------------
"Transfer Request" has the meaning set forth in Section 9.5(a).
---------------- --------------
"Transition Costs" means any documented expenses and allocated cost of
----------------
personnel reasonably incurred by the Backup Servicer in connection with a
transfer of servicing from the Servicer to the Backup Servicer as the successor
Servicer in an amount not to exceed $100,000.
"Trust Agreement" means the Trust Agreement dated as of the date hereof
---------------
among AFS, AFC and Bankers Trust (Delaware), as Trustee, which, inter alia,
----- ----
establishes the Borrower, including all permitted amendments, modifications and
supplements thereto.
"Trust Trustee" means the Trustee under the Trust Agreement.
-------------
"UCC" means the Uniform Commercial Code as from time to time in effect in
---
the applicable jurisdiction or jurisdictions.
"Unmatured Facility Termination Event" means any event that, if it
------------------------------------
continues uncured, will, with lapse of time or notice or lapse of time and
notice, constitute a Facility Termination Event.
"Usage Fee" has the meaning set forth in the Fee Letter.
---------
Page 34
"Warranty Receivable" means, with respect to any Collection Period, a
-------------------
Receivable that the Servicer or AFS has become obligated to purchase or
repurchase pursuant to Section 8.7 or under the Purchase Agreement.
-----------
"Wells Fargo" means Wells Fargo Bank (Texas), National Association.
-----------
"written" or "in writing" (and other variations thereof) means any form of
------- ----------
written communication or a communication by means of telex, telecopier device,
telegraph or cable.
"Year 2000 Compliant" means, with regard to any Person, that all software,
-------------------
embedded microchips, and other processing capabilities utilized by, and material
to the business or servicing operations or financial condition of such Person,
are able to interpret and manipulate data involving all calendar dates correctly
and without causing any abnormal ending scenario, including dates in and after
the year 2000.
"Yield" means, with respect to any period, the sum of the following:
-----
(i) without duplication of the amount set forth in the immediately
following clause (ii), the sum of the daily interest accrued on the
commercial paper issued by each Noncommitted Lender to fund or maintain any
Advance outstanding on each day during such period equal, for any such day,
to the product of (x) the outstanding principal amount of such commercial
paper on such day, (y) the applicable Commercial Paper Rate and (z) 1/360,
plus
----
(ii) if any commercial paper has been issued by a Noncommitted Lender
during such period to fund the interest component on any other commercial
paper maturing on a date other than a Settlement Date, the sum of the daily
interest accrued on such additional commercial paper outstanding on each
day during such period equal, for any such day, to the product of (x) the
outstanding principal amount of such additional commercial paper on such
day, (y) the applicable Commercial Paper Rate and (z) 1/360, plus
----
(iii) the sum of the daily interest accrued on Advances funded or
maintained other than through the issuance of commercial paper on each day
during such period equal, for any such day, to the product of (x) the
outstanding principal amount of such Advances on such day, (y) the Bank
Rate and (z) the applicable computation period determined in accordance
with Section 3.5 of this Agreement, minus
----------- -----
(iv) the amount of Yield paid on all Interim Distribution Dates
during such period.
Page 35
Notwithstanding clauses (i), (ii) and (iii) above, after the date any principal
amount of any Advance is due and payable (whether on the Facility Termination
Date, upon acceleration or otherwise) or after any other monetary obligation of
the Borrower or the Servicer arising under this Agreement shall become due and
payable, the Borrower or the Servicer, as the case may be, shall pay (to the
extent permitted by law, if in respect of any unpaid amounts representing Yield)
Yield (after as well as before judgment) on such amounts, payable on demand, at
a rate per annum equal to the Default Rate.
--- -----
SECTION 1.2 Other Definitional Provisions.
-----------------------------
(a) Unless otherwise specified therein, all terms defined in this
Agreement have the meanings as so defined herein when used in the Note or any
other Transaction Document, certificate, report or other document made or
delivered pursuant hereto.
(b) Each term defined in the singular form in Section 1.1 or elsewhere in
-----------
this Agreement shall mean the plural thereof when the plural form of such term
is used in this Agreement, the Note or any other Transaction Document,
certificate, report or other document made or delivered pursuant hereto, and
each term defined in the plural form in Section 1.1 shall mean the singular
-----------
thereof when the singular form of such term is used herein or therein.
(c) The words "hereof," "herein," "hereunder" and similar terms when used
in this Agreement shall refer to this agreement as a whole and not to any
particular provision of this Agreement, and article, section, subsection,
schedule and exhibit references herein are references to articles, sections,
subsections, schedules and exhibits to this Agreement unless otherwise
specified.
ARTICLE II
THE FACILITY, ADVANCE PROCEDURES AND NOTE
SECTION 2.1 Facility. On the terms and subject to the conditions set forth
--------
in this Agreement, each Noncommitted Lender may, in its sole discretion, make
Advances (to the extent of its Available Purchase Amount) to the Borrower on a
revolving basis from time to time during the period commencing on the Effective
Date and ending on the Facility Termination Date, in each case in such amounts
as may be requested by the Borrower pursuant to Section 2.2. If on any day there
-----------
shall be more than one Noncommitted Lender, any Advance requested by the
Borrower on such day shall be allocated among the Noncommitted Lenders pro rata
--- ----
on the basis of their respective Noncommitted Percentages and each Noncommitted
Lender may, in its sole and absolute discretion, determine whether to make an
Advance in its allocated amount. If a Noncommitted Lender elects not to make a
requested Advance, each of the Committed Lenders with respect to such
Noncommitted Lender shall make Advances (in an
Page 36
aggregate amount equal to the requested Advance) to the Borrower (to the extent
of the unutilized Commitment of each such Committed Lender and pro rata among
--- ----
such Committed Lenders in accordance with their respective Adjusted Commitment
Percentages) on a revolving basis from time to time during the period commencing
on the Effective Date and ending on the Commitment Termination Date. The lending
arrangement made available to the Borrower pursuant to the preceding sentences
of this Section 2.1 is herein called the "Facility". The aggregate principal
----------- --------
amount of all Advances from time to time outstanding hereunder shall not exceed
the lesser of (a) the Facility Limit and (b) the Borrowing Base. In addition,
under no circumstances shall any Lender make any Advance if after giving effect
thereto the aggregate outstanding principal balance of all Advances owing to
such Lender would exceed (i) if such Lender is a Noncommitted Lender, its
Maximum Purchase Amount or (ii) if such Lender is a Committed Lender, its
applicable Commitment. Within the limits of the Facility, the Borrower may
borrow, prepay and reborrow under this Section 2.1.
-----------
SECTION 2.2 Advance Procedures. The Borrower may request an Advance
------------------
hereunder by giving notice to the Agent and the Collateral Agent of a proposed
Advance not later than 1:00 P.M., New York time, one Business Day prior to the
proposed date of such Advance. Each such notice (herein called an "Advance
-------
Request") shall be in the form of Exhibit A and shall include the date and
------- ---------
amount of such proposed Advance, the desired duration of the Fixed Period for
such Advance and the Supplement and Schedule of Receivables setting forth the
information required therein with respect to the Receivables to be acquired by
the Borrower with the proceeds of the proposed Advance. Any Advance Request
given by the Borrower pursuant to this Section 2.2 shall be irrevocable and
-----------
binding on the Borrower.
SECTION 2.3 Funding. Subject to the satisfaction of the conditions
-------
precedent set forth in Article VII with respect to such Advance and the
-----------
limitations set forth in Section 2.1, the Lenders shall make the proceeds of
-----------
such requested Advance available as follows: first, to the extent the amount on
-----
deposit in the Reserve Account is less than the Minimum Reserve Account Amount
(computed after giving effect to the proposed Advance) on the proposed date of
the Advance, an amount equal to such deficiency shall be deposited by the
Lenders in the Reserve Account (by wire to account no. 6800007801 maintained at
the Collateral Agent (ABA # 044000037) for further credit to account no.
980218675); and second, all amounts of the Advance in excess of the required
------
deposit in the Reserve Account shall be made available to the Borrower by
deposit to such account as may be designated by the Borrower in the related
Advance Request in same day funds no later than 3:00 p.m., New York City time,
on the proposed date of the Advance. Each Advance shall be on a Business Day and
shall be in an amount of at least $5,000,000 (or an integral multiple of $1,000
in excess thereof).
SECTION 2.4 Representation and Warranty. Each request for an Advance
---------------------------
pursuant to Section 2.2 shall automatically constitute a representation and
-----------
warranty by the Borrower to the Agent and the Lenders that, on the requested
date of such
Page 37
Advance, (a) the representations and warranties contained in Article X will be
---------
true and correct as of such date as though made on such date, (b) no Facility
Termination Event or Unmatured Facility Termination Event has occurred and is
continuing or will result from the making of such Advance, and (c) after giving
effect to such requested Advance, the aggregate principal balance of the
outstanding Advances hereunder will not exceed the lesser of the Facility Limit
and the Borrowing Base.
SECTION 2.5 Voluntary Termination of Facility; Reduction and Increase of
------------------------------------------------------------
Facility Limit.
--------------
(a) At any time the Borrower may, upon at least five Business Days' prior
written notice to the Agent, terminate in whole or reduce the Total Commitment.
Upon any termination in whole of the Total Commitment, the Facility Limit and
the Maximum Purchase Amount of each Noncommitted Lender shall be reduced to
zero. Each partial reduction shall be in an aggregate amount of $5,000,000 or
integral multiples of $1,000,000 in excess thereof. Partial reductions of the
Total Commitment pursuant to this Section 2.5(a) shall be allocated to the
--------------
Commitment of each Committed Lender (thus reducing the Maximum Purchase Amount
of each Noncommitted Lender and the Facility Limit) pro rata based on the
--- ----
Commitment Percentage represented by such Commitment. Any termination or
reduction of the Total Commitment shall require (i) in the event of a partial
reduction and after giving effect to any such partial reduction and any prior
partial reduction, that the remaining Facility Limit be not less than
$50,000,000, and (ii) in connection therewith that the Borrower comply with
Section 3.2(b), Section 4.l(b) and Section 6.3. The Agent shall promptly provide
-------------- -------------- -----------
copies of any such notice of termination or reduction received by it to each
Lender together with a computation of the amount by which its Commitment (if
any) has been reduced.
(b) The Total Commitment (and Maximum Purchase Amounts and Facility Limit)
may be increased from time to time by (i) the increase of the Commitment of one
or more Committed Lenders (by amendment of its Joinder Supplement), (ii) the
addition of one or more Committed Lenders (by execution and delivery of
appropriate Joinder Supplements) or (iii) the addition of one or more
Noncommitted Lenders concurrently with the addition of one or more Committed
Lenders for such Noncommitted Lenders (by execution and delivery of appropriate
Joinder Supplements); provided, however, that no such increase shall become
-------- -------
effective unless (i) the Agent, AFS, the related Noncommitted Lender (in the
case of actions described in (i) and (ii) affecting its Committed Lenders) and
the Borrower shall have given their written consent thereto, and (ii) such
conditions, if any, as the Agent shall have required in connection with its
consent shall have been satisfied. Notwithstanding the foregoing, at no time may
the Facility Limit exceed $300,000,000.
SECTION 2.6 Note. All Advances shall be evidenced by a Note, with
----
appropriate insertions, payable to the order of the Agent, on behalf of the
Investors. The Borrower hereby irrevocably authorizes the Agent to make (or
cause to be made) appropriate
Page 38
notations on the grid attached to the Note (or on any continuation of such grid,
or at the Agent's option, in its records), which notations, if made, shall
evidence, inter alia, the date of, the outstanding principal of, and the yield
----- ----
rate(s) and Fixed Period(s) applicable to the Advances evidenced thereby. Such
notations shall be rebuttably presumptive evidence of the subject matter thereof
absent manifest error; provided, however, that the failure to make any such
-------- -------
notations shall not limit or otherwise affect any of the Obligations.
ARTICLE III
YIELD, FEES, ETC.
SECTION 3.1 Yield. The Borrower hereby promises to pay Yield on the unpaid
-----
principal amount of each Advance (or each portion thereof) for the period
commencing on the date of such Advance until such Advance is paid in full. No
provision of this Agreement or the Note shall require the payment or permit the
collection of Yield in excess of the maximum permitted by applicable law.
SECTION 3.2 Yield Payment Dates. Yield accrued on each Advance shall be
-------------------
payable, without duplication:
(a) on the Facility Termination Date;
(b) on the date of any payment or prepayment, in whole or in part, of
principal outstanding on such Advance; and
(c) on each Distribution Date; provided that Yield relating to such
--------
Advance may be payable, at the option of the Agent or the Borrower, on the
related Interim Distribution Date.
SECTION 3.3 Yield Allocations; Selection of Fixed Periods, etc.
--------------------------------------------------
(a) The Agent, from time to time in its sole discretion exercised in good
faith, shall determine after consultation with each Noncommitted Lender whether
Yield in respect of the Advances then outstanding, or any portion thereof, shall
be calculated by reference to such Lender's Commercial Paper Rate (such portion
being herein called a "CP Allocation") or the Bank Rate (such portion being
-------------
herein called a "Bank Rate Allocation", and together with a CP Allocation
--------------------
individually called an "Allocation", and collectively, "Allocations"); provided,
---------- ----------- --------
however, that the Agent may determine, at any time and in its sole discretion
-------
exercised in good faith, that the Commercial Paper Rate is unavailable or
otherwise not desirable, in which case the Advances will be allocated to a Bank
Rate Allocation (unless the Default Rate is in effect). The Agent shall provide
the Borrower with reasonably prompt notice of the Allocations made by it
pursuant to this Section 3.3(a).
--------------
Page 39
(b) The Agent, in its sole discretion exercised in good faith after
consultation with each Noncommitted Lender and the Borrower, shall select the
duration of the initial and each subsequent Fixed Period relating to each
Advance, provided that any Fixed Period selected by the Agent applicable to an
Advance owing to a Noncommitted Lender shall have been approved (in writing or
by telephone promptly confirmed in writing) by such Lender. In selecting such
Fixed Period, the Agent shall use reasonable efforts, taking into consideration
market conditions, to accommodate the Borrower's preferences; provided, however,
-------- -------
that the Agent shall have the ultimate authority to make all such selections.
Unless consented to or directed by the Agent, the aggregate number of Fixed
Periods for all Advances outstanding at any one time hereunder shall not exceed
25, it being understood that if necessary to match the funding requirement of a
Noncommitted Lender, any Advance may be divided into portions having different
Fixed Periods.
SECTION 3.4 Fees. The Borrower agrees to pay to the Agent, on behalf of
----
itself, the Lenders and the Liquidity Providers, certain fees in the amounts and
on the dates set forth in the letter agreement among CSFB, AFS and the Borrower
dated as of the date hereof (as the same may be amended, supplemented or
otherwise modified, the "Fee Letter").
----------
SECTION 3.5 Computation of Yield and Fees. All Yield and Fees shall be
-----------------------------
computed on the basis of the actual number of days (including the first day but
excluding the last day) occurring during the period for which such Yield or Fee
is payable over a year comprised of 360 days (or, in the case of Yield on an
Advance bearing Yield at the Alternate Base Rate, 365 days or, if appropriate,
366 days).
ARTICLE IV
REPAYMENTS AND PREPAYMENTS
SECTION 4.1 Repayments and Prepayments. The Borrower shall repay in full
--------------------------
the unpaid principal amount of each Advance on the Facility Termination Date.
Prior thereto, the Borrower:
(a) may, from time to time on any Business Day, make a prepayment, in
whole or in part, of the outstanding principal amount of any Advance;
provided, however, that
-------- -------
(i) all such voluntary prepayments shall require at least
two but no more than five Business Days' prior written notice to the
Agent; and
(ii) all such voluntary partial prepayments shall be in a
minimum amount of $1,000,000 and an integral multiple of $500,000;
Page 40
(b) shall, on each date when any reduction in the Facility Limit
shall become effective pursuant to Section 2.5, make a prepayment of the
-----------
Advances in an amount equal to the excess, if any, of the aggregate
outstanding principal amount of the Advances over the Facility Limit as so
reduced;
(c) shall, immediately upon any acceleration of the maturity date of
the Advances pursuant to Section 14.2, repay all Advances in full, unless,
------------
pursuant to Section 14.2(a), only a portion of all Advances is so
---------------
accelerated, in which event the Borrower shall repay the accelerated
portion of the Advances;
(d) shall, on the date the Borrower receives any proceeds from any
Take-Out Securitization (after deducting all costs and expenses of such
Take-Out Securitization), make a prepayment of the Advances in an amount
substantially equal to such net proceeds or, if less, the total outstanding
amount of Advances; and
(e) shall prepay the Advances in full (in the manner set forth in
Section 4.1(a)) in order to comply with the Clean-Up Requirement during
---------------
each Clean-Up Period.
Each such prepayment or payment shall be subject to the payment of any
amounts required by Section 6.3 resulting from a prepayment or payment of an
-----------
Advance prior to the end of the Fixed Period with respect thereto.
ARTICLE V
PAYMENTS; TAXES
SECTION 5.1 Making of Payments; Taxes.
-------------------------
(a) Subject to, and in accordance with, the provisions of the Security
Agreement, all payments of principal of, or Yield on, the Advances and of all
Fees and other amounts shall be made by the Borrower no later than 2:00 p.m.,
New York time, on the day when due in lawful money of the United States of
America in immediately available funds to the Agent, at its account (account
number - 8900387025; and account name - CSFBNY - Loan Clearing) maintained at
the office of Bank of New York, New York, New York (ABA # 021-000-018),
reference: AmeriCredit 1999 Warehouse, with telephone notice (including wire
number) to the Asset Finance Department of the Agent (telephone number 212-325-
----- ------- ----------
9075), or such other account as the Agent shall designate in writing to the
Borrower and the Collateral Agent (the "Agent's Account"). Payments received by
---------------
the Agent after 2:00 p.m., New York time, on any day will be deemed to have been
received by the Agent on its next following Business Day. The Agent shall, upon
receipt of such payments, promptly remit such
Page 41
payments (in the same type of funds received by the Agent) to each
Lender which has an interest in such payments hereunder and pro rata
--- ----
among the Lenders with such interests on the basis of the respective
amounts owing to such Lenders of the Obligations to which such
payments relate.All payments described in Section 5.1(a) and all other
--------------
payments made by or on behalf of the Borrower, a Seller, AFS or the
Servicer to the Agent for the benefit of itself or the Lenders or to
any other Affected Person under this Agreement and any other
Transaction Document shall be made free and clear of, and without
deduction or withholding for or on account of, any present or future
income, stamp or other taxes, levies, imposts, duties, charges, fees,
deductions or withholdings, now or hereafter imposed, levied,
collected, withheld or assessed by any Official Body (excluding (i)
---------
taxes imposed on the net income of the Agent or such other Affected
Person, however denominated, and (ii) franchise taxes imposed on the
net income of the Agent or such other Affected Person in each case
imposed: (1) by the United States or any political subdivision or
taxing authority thereof or therein; (2) by any jurisdiction under the
laws of which the Agent or such Affected Person or its applicable
lending office is organized or located, managed or controlled or in
which its principal office is located or any political subdivision or
taxing authority thereof or therein; or (3) by reason of any
connection between the jurisdiction imposing such tax and the Agent,
such Affected Person or such lending office other than a connection
arising solely from this Agreement or any other Transaction Document
or any transaction hereunder or thereunder) (all such non-excluded
taxes, levies, imposts, duties, charges, fees, deductions or
withholdings, collectively or individually, "Taxes"). If any such
-----
Taxes are required to be withheld from any amounts payable to the
Agent or any other Affected Person hereunder or under any other
Transaction Document, the amounts so payable to the Agent or such
Affected Person shall be increased to the extent necessary to yield to
the Agent or such Affected Person (after payment of all Taxes) all
amounts payable hereunder or thereunder at the rates or in the amounts
specified in this Agreement and the other Transaction Documents. The
Borrower (or the party required to "gross-up" the applicable payment)
shall indemnify the Agent or any such Affected Person for the full
amount of any such Taxes on the Settlement Date occurring after the
date of written demand therefor by the Agent; provided that no Person
--------
shall be indemnified pursuant to this Section 5.1(b) to the extent the
--------------
reason for such indemnification relates to, or arises from, the
failure by such Person to comply with the provisions of Section
-------
5.1(c).
-----
(c) Each Affected Person that is not incorporated under the laws
of the United States of America or a state thereof or the District of
Columbia shall:
(i) prior to becoming a party to, or acquiring an
interest in, any Transaction Document, deliver to the
Borrower and the Agent (A) two duly completed copies of IRS
Form 1001 or Form 4224, or successor applicable form, as the
case may be, and (B) an IRS Form W-8 or W-9, or successor
applicable form, as the case may be;and
Page 42
(ii) deliver to the Borrower and the Agent two (2)
further copies of any such form or certification on or before
the date that any such form or certification expires or
becomes obsolete and after the occurrence of any event
requiring a change in the most recent form previously
delivered by it to the Borrower and the Agent;
unless, in any such case, an event (including, without limitation, any change in
------
treaty, law or regulation) has occurred after the Closing Date and prior to the
date on which any such delivery would otherwise be required which renders all
such forms inapplicable or which would prevent such Affected Person from duly
completing and delivering any such form with respect to it, and such Affected
Person so advises the Borrower and the Agent. Each such Affected Person so
organized shall certify (i) in the case of an IRS Form 1001 or IRS Form 4224,
that it is entitled to receive payments under the this Agreement and the other
Transaction Documents without deduction or withholding of any United States
federal income taxes and (ii) in the case of an IRS Form W-8 or IRS Form W-9,
that it is entitled to an exemption from United States backup withholding tax.
Each Person that desires to become an additional party to a Noncommitted Lender
Liquidity Arrangement, shall prior to the effectiveness of such addition, be
required to provide all of the forms and statements required pursuant to this
Section 5.1(c).
--------------
SECTION 5.2 Application of Certain Payments. Each payment of principal of
-------------------------------
the Advances shall be applied to such Advances as the Borrower shall direct or,
in the absence of such notice or during the existence of a Facility Termination
Event or after the Facility Termination Date, as the Agent shall determine, in
its discretion.
SECTION 5.3 Due Date Extension. If any payment of principal or Yield with
------------------
respect to any Advance falls due on a day which is not a Business Day, then such
due date shall be extended to the next following Business Day, and additional
Yield shall accrue and be payable for the period of such extension at the rate
applicable to such Advance.
ARTICLE VI
INCREASED COSTS, ETC.
SECTION 6.1. Increased Costs.
---------------
(a) If due to the introduction of or any change in or in the
interpretation of any law or regulation occurring or issued after the date
hereof, the Agent, any Lender or other Investor, any Liquidity Provider, or any
of their respective Affiliates (each an "Affected Person") determines that
---------------
compliance with any law or regulation or any guideline or request from any
central bank or other Official Body (whether or not having
Page 43
the force of law) affects or would affect the amount of capital required or
expected to be maintained by such Affected Person and such Affected Person
determines that the amount of such capital is increased by or based upon the
existence of its obligations or commitments hereunder or with respect hereto or
to the funding thereof and other obligations or commitments of the same type,
then, upon demand by such Affected Person (with a copy to the Agent) (which
----
demand shall be accompanied by a statement setting forth the basis for the
calculations of the amount being claimed), the Borrower shall immediately pay to
the Agent, for the account of such Affected Person (as a third-party
beneficiary), from time to time as specified by such Affected Person, additional
amounts sufficient to compensate such Affected Person in the light of such
circumstances, to the extent that such Affected Person reasonably determines
such increase in capital to be allocable to the existence of any of such
obligations, commitments or fundings. Such written statement shall, in the
absence of manifest error, be rebuttably presumptive evidence of the subject
matter thereof. Any Affected Person claiming any additional amounts payable
pursuant to this Section 6.1(a) agrees to use reasonable efforts (consistent
-------------
with legal and regulatory restrictions) to designate a different office or
branch of such Affected Person as its lending office if the making of such a
designation would avoid the need for, or reduce the amount of, any such
additional amounts and would not, in the reasonable judgment of such Affected
Person, be otherwise disadvantageous to such Affected Person.
(b) If, due to either (i) the introduction of or any change (other than
any change by way of imposition or increase of reserve requirements referred to
in Section 6.2) in or in the interpretation of any law or regulation or (ii)
-----------
compliance with any guideline or request from any central bank or other Official
Body (whether or not having the force of law) issued after the date hereof,
there shall be any increase in the cost to a Lender of agreeing to make Advances
in respect of which Yield is computed by reference to the Eurodollar Rate, then,
----
upon demand by such Lender (with a copy to the Agent) (which demand shall be
accompanied by a statement setting forth the basis for the amount being
claimed), the Borrower shall immediately pay to the Agent, for the account of
such Lender (as a third-party beneficiary), from time to time as specified by
such Lender, additional amounts sufficient to compensate such Lender for such
increased costs. Such written statement shall, in the absence of manifest error,
be rebuttably presumptive evidence of the subject matter thereof. Any Affected
Person claiming any additional amounts payable pursuant to this Section 6.1(b)
-------------
agrees to use reasonable efforts (consistent with legal and regulatory
restrictions) to designate a different office or branch of such Affected Person
as its lending office if the making of such a designation would avoid the need
for, or reduce the amount of, any such additional amounts and would not, in the
reasonable judgment of such Affected Person, be otherwise disadvantageous to
such Affected Person.
SECTION 6.2 Additional Yield on Advances Bearing a Eurodollar Rate. The
------------------------------------------------------
Borrower shall pay to any Lender, so long as such Lender shall be required under
regulations of the Board of Governors of the Federal Reserve System to maintain
Page 44
reserves with respect to liabilities or assets consisting of or
including Eurocurrency liabilities, additional Yield on the unpaid
Advances of such Lender during each Fixed Period in respect of which
Yield is computed by reference to the Eurodollar Rate, for such Fixed
Period, at a rate per annum equal at all times during such Fixed
Period to the remainder obtained by subtracting (i) the Eurodollar
Rate for such Fixed Period from (ii) the rate obtained by dividing
such Eurodollar Rate referred to in clause (i) above by that
percentage equal to 100% minus the Eurodollar Rate Reserve Percentage
-----
of such Lender for such Fixed Period, payable on each date on which
Yield is payable on such Advances. Such additional Yield shall be
determined by such Lender and notice thereof (accompanied by a
statement setting forth the basis for the amount being claimed) given
to the Borrower through the Agent within 30 days after any Yield
payment is made with respect to which such additional Yield is
requested. Such written statement shall, in the absence of manifest
error, be rebuttably presumptive evidence of the subject matter
thereof. Any Affected Person claiming any additional amounts payable
pursuant to this Section 6.2 agrees to use reasonable efforts
-----------
(consistent with legal and regulatory restrictions) to designate a
different office or branch of such Affected Person as its lending
office if the making of such a designation would avoid the need for,
or reduce the amount of, any such additional amounts and would not, in
the reasonable judgment of such Affected Person, be otherwise
disadvantageous to such Affected Person.
SECTION 6.3 Funding Losses. The Borrower hereby agrees that upon demand by
--------------
any Affected Person (which demand shall be accompanied by a statement setting
forth the basis for the calculations of the amount being claimed) the Borrower
will indemnify such Affected Person against any net loss or expense which such
Affected Person may sustain or incur (including, without limitation, any net
loss or expense incurred by reason of or resulting from interest to accrue on
the related commercial paper after the date of any failed borrowing, payment or
prepayment of an Advance or from the liquidation or reemployment of deposits or
other funds acquired by such Affected Person to fund or maintain any Advance to
the Borrower), as reasonably determined by such Affected Person, as a result of
any failure to borrow an Advance on the date specified therefor in an Advance
Request (other than due to a default by a Lender) or as a result of any payment
or prepayment (including any mandatory prepayment) of any Advance on a date
other than the last day of the Fixed Period for such Advance. Such written
statement shall, in the absence of manifest error, be rebuttably presumptive
evidence of the subject matter thereof.
SECTION 6.4 Replacement of Affected Person. Upon the receipt by the
Borrower of a claim for reimbursement or compensation under Section 6.1 or 6.2
------------------
hereof by an Affected Person, if payment thereof shall not be waived by such
Affected Person, the Borrower may (a) request such Affected Person or the Lender
that has assigned an interest in its Advances to such Affected Person to use
reasonable efforts to assist the Borrower in its attempt to obtain a replacement
bank, financial institution or Structured Lender, as applicable, satisfactory to
the Borrower (in the case of a replacement
Page 45
Lender) and the Agent (which consent shall not be unreasonably withheld), to
acquire and assume all or a ratable part of such Affected Person's commitment to
make Advances, Advances, or interests therein (a "Replacement Person"), or (b)
------------------
request one or more of the other Lenders or Investors to acquire and assume all
or a part of such Affected Person's commitment to make Advances, Advances or
interests therein. Upon notice from the Borrower, such Affected Person shall, or
the Lender that has assigned an interest in its Advances to such Affected Person
shall cause such Affected Person to, assign, without recourse, its commitment to
make Advances, Advances or interests therein and its other rights and
obligations (if any) hereunder, or a ratable share thereof, to the Replacement
Person or Replacement Persons designated by the Borrower and consented to by the
Agent for a purchase price equal to the sum of the principal amount of the
Advances or interests therein so assigned, all accrued and unpaid Yield thereon
and any other amounts (including Fees and any amounts owing under this Article
-------
VI) to which such Affected Person is entitled hereunder; provided, that the
-- --------
Borrower shall provide such Affected Person with an Officer's Certificate
stating that such Replacement Person has advised the Borrower that it is not
subject to, or has agreed not to seek, such increased amount.
ARTICLE VII
EFFECTIVENESS; CONDITIONS TO ADVANCES
SECTION 7.1 Effectiveness. This Agreement shall become effective on the
-------------
first day (the "Effective Date") on which the Agent, on behalf of the Lenders,
--------------
shall have received the following, each in form and substance satisfactory to
the Agent, provided that the Effective Date may not occur later than April 1,
--------
1999 without the prior written consent of the Agent and the Lenders:
(a) Agreement. This Agreement and Joinder Supplements (resulting in a
---------
Facility Limit of not less than $150,000,000), executed by each party thereto;
(b) Fee Letter. The Fee Letter, duly executed and delivered by the parties
----------
thereto, and evidence that all amounts required to be paid on the Effective Date
thereunder shall have been paid;
(c) Accounts. Evidence that the Reserve Account, the Collateral Account
--------
and the Collection Account have been established and the Borrower shall have
caused to be deposited in the Reserve Account an amount equal to the Minimum
Reserve Account Amount;
(d) Transaction Documents. Executed counterparts of each of the other
---------------------
Transaction Documents (other than the Note or any Interest Rate Hedge), and the
Backup Servicer/Collateral Agent Fee Letter, duly executed by each of the
parties thereto; and
Page 46
(e) Other. Such other approvals, documents, opinions, certificates and
-----
reports as the Agent may reasonably request.
SECTION 7.2 Initial Advance. The making of the initial Advance is subject
---------------
to the condition that the Effective Date shall have occurred, the conditions set
forth in Section 7.3 have been satisfied, and the Agent on behalf of the Lenders
-----------
shall have received the following, each in form and substance satisfactory to
the Agent:
(a) Note. The Note duly completed and executed by the Borrower;
----
(b) Resolutions. A copy of the resolutions of the Board of Directors (or
-----------
similar items) of each of AFC, ACC and AFS (on behalf of itself and the
Borrower) approving the Transaction Documents to be delivered by it or the
Borrower hereunder and the transactions contemplated hereby, certified by its
Secretary or Assistant Secretary;
(c) Charters. The Certificate or Articles of Incorporation of each of the
--------
Trust Trustee, AFC, ACC and AFS certified by the Secretary of State of its
jurisdiction of organization; and a certified copy of the Trust Trustee's,
AFC's, ACC's and AFS's by-laws;
(d) Good Standing Certificates. Good Standing Certificates for the Trust
--------------------------
Trustee, and for each of AFC, ACC and AFS issued by the applicable Official Body
of its jurisdiction of organization;
(e) Incumbency. A certificate of the Secretary or Assistant Secretary of
----------
each of the Trust Trustee (on behalf of the Borrower), AFC, ACC and AFS
certifying the names and true signatures of the officers authorized on its
behalf to sign this Agreement and the other Transaction Documents to be
delivered by it (on which certificate the Agent and the Lenders may conclusively
rely until such time as the Agent shall receive a revised certificate meeting
the requirements of this subsection (e));
---------------
(f) Filings. Acknowledgment copies of proper UCC-1 Financing Statements
-------
(executed by each Seller and/or Borrower, as applicable), as may be necessary
or, in the opinion of the Agent, desirable under the UCC of all appropriate
jurisdictions or any comparable law to perfect the security interest of the
Collateral Agent on behalf of the Secured Parties in all Borrower Collateral in
which an interest may be pledged hereunder;
(g) Searches. Certified copies of Requests for Information or Copies (Form
--------
UCC-11) (or a similar search report certified by a party acceptable to the
Agent), dated a date reasonably near to the date of the initial Advance, listing
all effective financing statements which name the Borrower, AFS or a Seller
(under their respective present names and any previous names) as debtor and
which are filed in the jurisdictions in
Page 47
which filings were made pursuant to Section 7.2(f), together with copies of such
--------------
financing statements;
(h) Opinions. Legal opinion(s) of the General Counsel of AFC, ACC and AFS,
--------
of Dewey Ballantine, Jenkins & Gilchrist, and Hinchy, Witte, Wood, Anderson & Hodges, each special counsel for the Borrower and AFS, Richards, Layton & Fingers, special Delaware counsel for the Borrower and the Trust Trustee and of
Purcell & Scott, Co., L.P.A., counsel for the Backup Servicer and Collateral
Agent, each in form and substance satisfactory to the Agent covering such
matters as the Agent may reasonably request;
(i) Procedures Letter. An "agreed upon procedures" letter (requiring,
-----------------
inter alia, the review of not less than 100 Receivables included in the Total
----- ----
Receivables Pool) approved and accepted by the Independent Accountants, AFS and
the Agent relating to the reviews described in Section 8.12(b); and
---------------
(j) Other. Such other approvals, documents, opinions, certificates and
-----
reports as the Agent may reasonably request.
SECTION 7.3 All Advances. The making of each Advance (including the
------------
initial Advance) is subject to the condition that the Effective Date shall have
occurred, the conditions set forth in Section 7.2 shall have been satisfied, and
-----------
to the following further conditions precedent that:
(a) No Facility Termination Event, etc. Each of the Transaction Documents
shall be in full force and effect and (i) no Facility Termination Event or
Unmatured Facility Termination Event has occurred and is continuing or will
result from the making of such Advance, (ii) the representations and warranties
of the Borrower contained in Article X and the Servicer and the Sellers
---------
contained in Section 8.6(b) are true and correct as of the date of such
--------------
requested Advance, with the same effect as though made on the date of (and after
giving effect to) such Advance, and (iii) after giving effect to such Advance,
the aggregate outstanding principal balance of the Advances hereunder will not
exceed the lesser of the Facility Limit and the Borrowing Base;
(b) Advance Request, etc. The Agent shall have received the Advance
---------------
Request for such Advance in accordance with Section 2.2, together with all items
-----------
required to be delivered in connection therewith;
(c) Facility Termination Date. The Facility Termination Date shall not
-------------------------
have occurred;
(d) Minimum Advance Amount. The amount of such Advance is not less than
----------------------
$5,000,000;
Page 48
(e) Collateral Receipt. The Agent shall have received a duly completed and
------------------
executed Collateral Receipt in respect of each Receivable identified in related
Schedule of Receivables submitted with the Advance Request for such Advance;
(f) Portfolio Review. The Agent shall have received the results
----------------
of the most recent review required to be made by the Independent Accountants
pursuant to Section 8.12(b), which review shall contain no exceptions
---------------
unacceptable to the Agent in its reasonable discretion;
(g) Borrowing Base Confirmation. The Agent shall have received a duly
---------------------------
completed and executed certificate regarding the Borrowing Base in the form
attached hereto as Exhibit D (a "Borrowing Base Confirmation"), computed as of
--------- ---------------------------
the date of such Advance and after giving effect thereto and to the purchase by
the Borrower of any Receivables to be purchased by it under the Purchase
Agreement on such date;
(h) Interest Rate Hedges. The Agent shall have received evidence, in form
--------------------
and substance satisfactory to the Agent, that the Borrower has entered into
Interest Rate Hedges to the extent required by, and satisfying the requirements
of, Section 11.6 (together with an Interest Rate Hedge Assignment Acknowledgment
------------
duly executed by the counterparty thereto and concurrently delivered to the
Agent);
(i) Reserve Account. After giving effect to such Advance and the
---------------
application of the proceeds thereof in accordance with Section 2.3, the amount
-----------
on deposit in the Reserve Account is not less than the Minimum Reserve Account
Amount;
(j) Releases. Each of the Agent and the Borrower shall have received, duly
--------
executed and delivered by Wells Fargo, a lien release substantially in the form
specified in Section 1(b) of the Intercreditor Agreement with respect to the
Receivables to be acquired by the Borrower with the proceeds of such Advance;
and
(k) Other. The Agent shall have received such other approvals, documents,
-----
opinions, certificates and reports as it may reasonably request.
ARTICLE VIII
ADMINISTRATION AND SERVICING OF RECEIVABLES
SECTION 81. Duties of the Servicer. (a) The Servicer is hereby authorized
----------------------
to act for the Borrower and in such capacity shall manage, service, administer
and make collections on the Transferred Receivables, and perform the other
actions required by the Servicer under this Agreement for the benefit of the
Investors and other Secured Parties. The Servicer agrees that its servicing of
the Transferred Receivables shall be carried out in accordance with customary
and usual procedures of institutions which service motor vehicle retail
installment sales contracts and, to the extent more exacting,
Page 49
the degree of skill and attention that the Servicer exercises from time to time
with respect to all comparable motor vehicle receivables that it services for
itself or others in accordance with AFS's Servicing Procedures and Credit Manual
as in effect from time to time for servicing all its other comparable motor
vehicle receivables. The Servicer's duties shall include, without limitation,
collection and posting of all payments, responding to inquiries of Obligors on
the Transferred Receivables, investigating delinquencies, sending payment
statements or payment books to Obligors, reporting any required tax information
to Obligors, policing the collateral, complying with the terms of the Lockbox
Agreement, accounting for collections and furnishing monthly and annual
statements to the Agent and the Collateral Agent with respect to distributions,
monitoring the status of Insurance Policies with respect to the Financed
Vehicles and performing the other duties specified herein. The Servicer shall
also administer and enforce all rights and responsibilities of the holder of the
Transferred Receivables provided for in the Dealer Agreements (and shall
maintain possession of the Dealer Agreements, to the extent it is necessary to
do so), the Dealer Assignments and the Insurance Policies, to the extent that
such Dealer Agreements, Dealer Assignments and Insurance Policies relate to the
Transferred Receivables, the related Financed Vehicles or the related Obligors.
(b) To the extent consistent with the standards, policies and procedures
otherwise required hereby, the Servicer shall follow its customary standards,
policies, and procedures with respect to the Transferred Receivables and shall
have full power and authority, acting alone, to do any and all things in
connection with such managing, servicing, administration and collection that it
may deem necessary or desirable. Without limiting the generality of the
foregoing, the Servicer is hereby authorized and empowered by the Borrower to
execute and deliver, on behalf of the Borrower, any and all instruments of
satisfaction or cancellation, or of partial or full release or discharge, and
all other comparable instruments, with respect to the Transferred Receivables
and with respect to the related Financed Vehicles. The Servicer is authorized to
release Liens on Financed Vehicles in order to collect insurance proceeds with
respect thereto and to liquidate such Financed Vehicles in accordance with its
customary standards, policies and procedures; provided, however, that
-------- -------
notwithstanding the foregoing, the Servicer shall not, except pursuant to an
order from a court of competent jurisdiction, release an Obligor from payment of
any unpaid amount under any Transferred Receivable or waive the right to collect
the unpaid balance of any Transferred Receivable from the Obligor, except that
the Servicer may forego collection efforts if the amount subject to collection
is de minimis and if it would forego collection in accordance with its customary
procedures. The Servicer is hereby authorized to commence, in its own name or
in the name of the Borrower, the Collateral Agent or the Lenders (provided that
--------
if the Servicer is acting in the name of the Collateral Agent or the Lenders,
the Servicer shall have obtained the Collateral Agent's and the Agent's consent,
as the case may be, which consent shall not be unreasonably withheld), a legal
proceeding to enforce a Transferred Receivable pursuant to Section 8.3 or to
-----------
commence or participate in any other legal proceeding (including, without
limitation, a
Page 50
bankruptcy proceeding) relating to or involving a Transferred Receivable, an
Obligor or a Financed Vehicle. If the Servicer commences or participates in such
a legal proceeding in its own name, the Borrower or the Collateral Agent (on
behalf of the Secured Parties), as the case may be, shall thereupon be deemed to
have automatically assigned such Transferred Receivable to the Servicer solely
for purposes of commencing or participating in any such proceeding as a party or
claimant, and the Servicer is authorized and empowered by the Borrower or the
Collateral Agent (on behalf of the Secured Parties), as the case may be, to
execute and deliver in the Servicer's name any notices, demands, claims,
complaints, responses, affidavits or other documents or instruments in
connection with any such proceeding. The Borrower and the Collateral Agent (on
behalf of the Secured Parties), as the case may be, shall furnish the Servicer
with any powers of attorney and other documents which the Servicer may
reasonably request in writing and which the Servicer deems necessary or
appropriate and take any other steps which the Servicer may deem necessary or
appropriate to enable the Servicer to carry out its servicing and administrative
duties under this Agreement.
(c) The Servicer agrees to perform all duties and obligations of the
Borrower under the Transaction Documents, including, without limitation, the
obligations of the Borrower under this Agreement.
SECTION 8.2. Collection of Receivable Payments; Modification and Amendment
-------------------------------------------------------------
of Receivables; Lockbox Agreements.
----------------------------------
(a) Consistent with the standards, policies and procedures required by
this Agreement, the Servicer shall make reasonable efforts to collect all
payments called for under the terms and provisions of the Transferred
Receivables as and when the same shall become due, and shall follow such
collection procedures as it follows with respect to all comparable automobile
receivables that it services for itself or others and otherwise act with respect
to the Transferred Receivables, the Dealer Agreements, the Dealer Assignments
and the Insurance Policies in such manner as will, in the reasonable judgment of
the Servicer, maximize the amount to be received by the Borrower and the Secured
Parties with respect thereto. The Servicer is authorized in its discretion to
waive any prepayment charge, late payment charge or any other similar fees that
may be collected in the ordinary course of servicing any Transferred Receivable.
(b) The Servicer may at any time agree to a modification or amendment of a
Transferred Receivable in order to (i) change the Obligor's regular due date to
another date within the Collection Period in which such due date occurs, (ii)
re-amortize the amount of the scheduled payments on the Transferred Receivable
following a partial prepayment of principal or (iii) convert a Pre-Computed
Receivable to a Simple Interest Receivable.
Page 51
(c) The Servicer may grant payment extensions on, or other modifications
or amendments to, a Transferred Receivable (including those modifications
permitted by Section 8.2(b)) in accordance with its customary procedures if the
---------------
Servicer believes in good faith that such extension, modification or amendment
is necessary to avoid a default on such Transferred Receivable, will maximize
the amount to be received by the Borrower and the Secured Parties with respect
to such Transferred Receivable, and is otherwise in the best interests of the
Borrower and the Secured Parties; provided, however, that:
-------- -------
(i) in no event may a Transferred Receivable be extended more
than twice during any twelve month period or more than six times
during the full term of such Transferred Receivable;
(ii) the aggregate period of all extensions on a Receivable
shall not exceed six months and any such extension shall not extend
beyond 78 months after the Facility Termination Date; and
(iii) the Servicer shall not amend or modify a Transferred
Receivable (except as provided in Section 8.2(b) and clause (i) and
--------------
(ii) of this Section 8.2(c)) without the written consent of the Agent.
--------------
provided, that any such amendment, modification or extension shall be delivered
-------- ----
by the Servicer to the Custodian promptly after execution thereof.
(a) The Servicer shall use its best efforts to cause Obligors to make all
payments on the Transferred Receivables, whether by check or by direct debit of
the Obligor's bank account, to be made directly to one or more Lockbox Banks,
acting as agent for the Collateral Agent (on behalf of the Secured Parties)
pursuant to a Lockbox Agreement. Amounts received by a Lockbox Bank in respect
of the Transferred Receivables may initially be deposited into an account (the
"Lockbox Account") maintained by the Lockbox Bank as agent for the Collateral
---------------
Agent (on behalf of the Secured Parties) and for other owners of automobile
receivables serviced by the Servicer. The Servicer shall use its best efforts to
cause the Lockbox Bank, pursuant to the Lockbox Agreement, to deposit all
payments on the Transferred Receivables in the Lockbox Account no later than the
Business Day after receipt and shall transfer all amounts credited to the
Lockbox Account on account of such payments to the Collection Account, no later
than the second Business Day after receipt of such payments. The Lockbox Account
shall be a demand deposit account held by the Lockbox Bank, or at the request of
the Agent, an Eligible Account satisfying clause (i) of the definition thereof.
Notwithstanding any Lockbox Agreement, or any of the provisions of this
Agreement relating to the Lockbox Agreement, the Servicer shall remain obligated
and liable to the Agent, the Collateral Agent and the Investors for servicing
and
Page 52
administering the Transferred Receivables in accordance with the provisions
of this Agreement without diminution of such obligation or liability by virtue
thereof.
In the event the Servicer shall for any reason no longer be acting as
such, the Backup Servicer or successor Servicer shall thereupon assume all of
the rights and, from the date of assumption, all of the obligations of the
outgoing Servicer under the Lockbox Agreement, if applicable. The Backup
Servicer or any other successor Servicer shall not be liable for any acts,
omissions or obligations of the Servicer prior to such succession. In such
event, the successor Servicer shall be deemed to have assumed all of the
outgoing Servicer's interest therein and to have replaced the outgoing Servicer
as a party to each such Lockbox Agreement to the same extent as if such Lockbox
Agreement had been assigned to the successor Servicer, except that the outgoing
Servicer shall not thereby be relieved of any liability or obligations on the
part of the outgoing Servicer to the Lockbox Bank under such Lockbox Agreement.
The outgoing Servicer shall, upon request of the Agent, but at the expense of
the outgoing Servicer, deliver to the successor Servicer all documents and
records relating to each such agreement and an accounting of amounts collected
and held by the Lockbox Bank and otherwise use its best efforts to effect the
orderly and efficient transfer of any Lockbox Agreement to the successor
Servicer. In the event that the Agent elects to change the identity of the
Lockbox Bank, the Servicer, at its expense, shall cause the Lockbox Bank to
deliver, at the direction of the Agent, to the Collateral Agent or a successor
Lockbox Bank all documents and records relating to the Transferred Receivables
and all amounts held (or thereafter received) by the Lockbox Bank (together with
an accounting of such amounts) and shall otherwise use its best efforts to
effect the orderly and efficient transfer of the lockbox arrangements and the
Servicer shall notify the Obligors to make payments to the Lockbox Account
established by the successor.
(e) The Servicer shall remit all payments by or on behalf of the Obligors
received directly by the Servicer to the Lockbox Account as soon as practicable,
but in no event later than the Business Day after receipt thereof.
SECTION 8.3 Realization Upon Receivables.
----------------------------
(a) Consistent with the standards, policies and procedures required by
this Agreement, the Servicer shall use its best efforts to repossess (or
otherwise comparably convert the ownership of) and liquidate any Financed
Vehicle securing a Transferred Receivable with respect to which the Servicer has
determined that payments thereunder are not likely to be resumed, as soon as is
practicable after default on such Transferred Receivable but in no event later
than the date on which all or any portion of a Scheduled Payment has become 91
or more days delinquent; provided, however, that the Servicer may elect not to
repossess a Financed Vehicle within such time period if in its good faith
judgment it determines that the proceeds ultimately recoverable with respect to
such Receivable would be increased by
Page 53
forbearance. The Servicer is authorized to follow such customary practices and
procedures as it shall deem necessary or advisable, consistent with the standard
of care required by Section 8.1, which practices and procedures may include
-----------
reasonable efforts to realize upon any recourse to Dealers, selling the related
Financed Vehicle at public or private sale, the submission of claims under an
Insurance Policy and other actions by the Servicer in order to realize upon such
Transferred Receivable. The foregoing is subject to the provision that, in any
case in which the Financed Vehicle shall have suffered damage, the Servicer
shall not expend funds in connection with any repair or towards the repossession
of such Financed Vehicle unless it shall determine in its discretion that such
repair and/or repossession shall increase the proceeds of liquidation of the
related Transferred Receivable by an amount greater than the amount of such
expenses. All Recoveries shall be remitted directly by the Servicer to the
Lockbox Account as soon as practicable, but in no event later than the Business
Day after receipt thereof. The Servicer shall be entitled to recover all
reasonable expenses incurred by it in the course of repossessing and liquidating
a Financed Vehicle, but only out of the cash proceeds of such Financed Vehicle,
any deficiency obtained from the Obligor or any amounts received from the
related Dealer, which amounts may be retained by the Servicer (and shall not be
required to be deposited in the Lockbox Account) to the extent of such expenses.
The Servicer shall pay on behalf of the Borrower any personal property taxes
assessed on repossessed Financed Vehicles; and the Servicer shall be entitled to
reimbursement of any such tax from Recoveries with respect to the related
Transferred Receivable.
(b) If the Servicer elects to commence a legal proceeding to enforce a
Dealer Agreement or Dealer Assignment, the act of commencement shall be deemed
to be an automatic assignment from the Borrower and the Collateral Agent (on
behalf of the Secured Parties) to the Servicer of the rights under such Dealer
Agreement and Dealer Assignment for purposes of collection only. If, however, in
any enforcement suit or legal proceeding, it is held that the Servicer may not
enforce a Dealer Agreement or Dealer Assignment on the grounds that it is not a
real party in interest or a Person entitled to enforce the Dealer Agreement or
Dealer Assignment, the Borrower, at the Servicer's expense, shall take such
steps as the Servicer deems necessary to enforce the Dealer Agreement or Dealer
Assignment, including bringing suit in its name. All amounts recovered shall be
remitted directly by the Servicer to the Lockbox Account as soon as practicable,
but in no event later than the Business Day after receipt thereof.
SECTION 8.4 Insurance.
---------
(a) The Servicer shall monitor the status of the Insurance Policies in
accordance with its customary servicing procedures. If the Servicer shall
determine that an Obligor has failed to obtain or maintain a physical loss and
damage insurance policy covering the related Financed Vehicle which satisfies
the conditions set forth in clause (n) of the definition of "Eligible
----------
Receivable" (including during the repossession of such Financed Vehicle) the
Servicer shall enforce the rights of the holder of the
Receivable thereunder to require that the Obligor obtains such physical loss and
damage insurance.
(b) The initial Servicer may, in its reasonable discretion, if an Obligor
fails to obtain or maintain a physical loss and damage Insurance Policy, obtain
insurance with respect to the related Financed Vehicle and advance on behalf of
such Obligor, as required under the terms of the Insurance Policy, the premiums
for such insurance (such insurance being referred to herein as "Force-Placed
------------
Insurance"). All policies of Force-Placed Insurance shall be endorsed with
---------
clauses providing for loss payable to the Collateral Agent. Any cost incurred by
the Servicer in maintaining such Force-Placed Insurance shall only be
recoverable out of premiums paid by the Obligors or Recoveries with respect to
the Transferred Receivable, as provided in paragraph (c) of this Section 8.4.
-----------
(c) In connection with any Force-Placed Insurance obtained hereunder, the
Servicer may, in the manner and to the extent permitted by applicable law,
require the Obligors to repay the entire premium to the Servicer. In no event
shall the Servicer include the amount of the premium in the Amount Financed
under the Receivable. For all purposes of this Agreement, the Insurance Add-On
Amount with respect to any Receivable having Force-Placed Insurance will be
treated as a separate obligation of the Obligor and will not be added to the
Principal Balance of such Receivable, and amounts allocable thereto will not be
available in respect of the Obligations. The Servicer shall retain and
separately administer the right to receive payments from Obligors with respect
to Insurance Add-On Amounts or rebates of Force-Placed Insurance premiums. If an
Obligor makes a payment with respect to a Receivable having Force-Placed
Insurance, but the Servicer is unable to determine whether the payment is
allocable to the Receivable or to the Insurance Add-On Amount, the payment shall
be applied first to any unpaid Scheduled Payments and then to the Insurance Add-
On Amount. Recoveries on any Receivable will be used first to pay the Principal
Balance and accrued interest on such Receivable and then to pay the related
Insurance Add-On Amount. If an Obligor under a Receivable with respect to which
the Servicer has placed Force-Placed Insurance fails to make scheduled payments
of such Insurance Add-On Amount as due, and the Servicer has determined that
eventual payment of the Insurance Add-On Amount is unlikely, the Servicer may,
but shall not be required to, purchase such Receivable from the Borrower for the
Purchase Amount on any subsequent Distribution Date. Any such Receivable, and
any Receivable with respect to which the Servicer has placed Force-Placed
Insurance which has been paid in full (excluding any Insurance Add-On Amounts)
will be assigned by the Borrower to the Servicer.
(d) The Servicer may sue to enforce or collect upon the Insurance
Policies, in its own name, if possible, or as agent of the Borrower and the
Collateral Agent (on behalf of the Secured Parties). If the Servicer elects to
commence a legal proceeding to enforce an Insurance Policy, the act of
commencement shall be deemed to be an
Page 55
automatic assignment of the rights of the Borrower and the Collateral Agent (on
behalf of the Secured Parties) under such Insurance Policy to the Servicer for
purposes of collection only. If, however, in any enforcement suit or legal
proceeding it is held that the Servicer may not enforce an Insurance Policy on
the grounds that it is not a real party in interest or a holder entitled to
enforce the Insurance Policy, the Borrower shall take such steps as the
Servicer deems necessary to enforce such Insurance Policy, including bringing
suit in its name.
(e) The Servicer may, in its reasonable discretion, maintain Collateral
Insurance. If the Servicer elects not to maintain Collateral Insurance it will
be obligated to indemnify the Borrower, and the Secured Parties against any
losses arising from an Obligor's failure to maintain physical loss and damage
insurance with respect to the related Financed Vehicle.
SECTION 8.5 Maintenance of Security Interests in Financed Vehicles.
------------------------------------------------------
(a) Consistent with its obligations under this Agreement, the Security
Agreement and the Custodian Agreement, the Servicer shall take such steps as are
necessary to maintain perfection of the security interest created by each
Transferred Receivable in the related Financed Vehicle on behalf of the Borrower
and the Collateral Agent for the benefit of the Secured Parties, including but
not limited to obtaining the execution by the Obligors and the recording,
registering, filing, re-recording, re-filing, and re-registering of all security
agreements, financing statements and continuation statements as are necessary to
maintain the security interest granted by the Obligors under the Transferred
Receivables. The Borrower and the Collateral Agent (on behalf of the Secured
Parties) each hereby authorizes the Servicer, and the Servicer agrees, to take
any and all steps necessary to re-perfect such security interest on behalf of
the Borrower and the Collateral Agent (on behalf of the Secured Parties) as
necessary because of the relocation of a Financed Vehicle or for any other
reason. In the event that the assignment of a Transferred Receivable to the
Borrower and the pledge thereof to the Collateral Agent (on behalf of the
Secured Parties), and the filing of UCC financing statements all as provided
herein, is insufficient, without a notation on the related Financed Vehicle's
certificate of title, or without fulfilling any additional administrative
requirements under the laws of the state in which the Financed Vehicle is
located, to perfect a security interest in the related Financed Vehicle in favor
of the Borrower and the pledge thereof to the Collateral Agent (on behalf of the
Secured Parties), the parties hereto agree that AFS's or ACC's (as applicable)
designation as the secured party on the certificate of title is, with respect to
each secured party, as applicable, in its capacity as agent of the Borrower and
the Secured Parties.
(b) Upon the occurrence and during the continuance of a Facility
Termination Event, the Agent may instruct the Borrower and the Servicer to take
or cause to be taken such reasonable action as may, in the opinion of counsel to
the Agent, be necessary or desirable to perfect or re-perfect the security
interests in the Financed
Page 56
Vehicles securing the Transferred Receivables in the name of the Borrower and
the Collateral Agent (on behalf of the Secured Parties) (as lienholder) by
amending the title documents of such Financed Vehicles or by such other
reasonable means as may, in the opinion of counsel to the Agent, be necessary or
prudent. AFS hereby agrees to pay all expenses related to such perfection or re-
perfection and to take all action necessary therefor. In addition, prior to the
occurrence of a Facility Termination Event, the Agent may instruct the Borrower
and the Servicer to take or cause to be taken such reasonable action (at the
expense of the Lenders) as may, in the opinion of counsel to the Agent, be
necessary to perfect or re-perfect the security interest in the Financed
Vehicles underlying the Transferred Receivables in the name of the Borrower and
the Collateral Agent (on behalf of the Secured Parties), including by amending
the title documents of such Financed Vehicles or by such other reasonable means
as may, in the opinion of counsel to the Agent, be necessary or prudent.
SECTION 8.6 Covenants, Representations and Warranties of Servicer and
---------------------------------------------------------
Sellers.
-------
(a) The Servicer covenants to the Borrower, the Agent and the
Investors as follows:
(i) Liens in Force. The Financed Vehicle securing each
--------------
Transferred Receivable shall not be released in whole or in part
from the security interest granted by such Receivable, except
upon payment in full of such Receivable or as otherwise
contemplated herein;
(ii) No Impairment. The Servicer shall do nothing to
-------------
impair the rights of the Borrower or the Secured Parties in the
Transferred Receivables, the Dealer Agreements, the Dealer
Assignments or the Insurance Policies;
(iii) No Amendments. The Servicer shall not extend or
-------------
otherwise amend the terms of any Transferred Receivable, except
in accordance with Section 8.2;
-----------
(iv) Restriction on Liens. The Servicer shall not: (i)
--------------------
create or incur or agree to create or incur, or consent to cause
(upon the happening of a contingency or otherwise) the creation,
incurrence or existence of any Lien or restriction on
transferability of the Receivables or of any Other Conveyed
Property except for the Lien in favor of the Collateral Agent for
the benefit of Secured Parties, and the restrictions on
transferability imposed by this Agreement or (ii) sign or file
under the UCC of any jurisdiction any financing statement or sign
any security agreement authorizing any secured party thereunder
to file such financing statement, with respect to the Receivables
or to any Other Conveyed Property,
Page 57
except in each case any such instrument solely securing the
rights and preserving the Lien of the Collateral Agent, for the
benefit of Secured Parties. The Servicer will take no action to
cause any Receivable to be evidenced by an instrument (as such
term is defined in the relevant UCC);
(v) Servicing of Receivables. The Servicer shall service
------------------------
the ransferred Receivables as required by the terms of this
Agreement and in material compliance with the current Servicing
Procedures and Credit Manual for servicing all its other
comparable motor vehicle receivables and the Servicer shall not
change the Servicing Procedures and Credit Manual or the manner
in which it services the Receivables in any way that can have a
material adverse effect on the Transferred Receivables or the
Investors;
(vi) Compliance with Laws. The Servicer shall comply in
--------------------
all material respects with the laws of each state in which a
Transferred Receivable is located, including, without limitation,
all federal and state laws regarding the collection and
enforcement of consumer debt;
(vii) Notice of Relocation. The Servicer shall give the
--------------------
Agent at least 60 days prior written notice of any relocation
of its principal executive office if, as a result of such
relocation, the applicable provisions of the UCC would require
the filing of any amendment of any previously filed financing
or continuation statement or of any new financing statement.
The Servicer shall at all times maintain each office from which
it services the Collateral and its principal executive office
within the United States of America;
(viii) Maintenance of Computer Systems, etc. The Servicer
------------------------------------
shall maintain its computer systems so that, from and after the
time of the first Advance under this Agreement, the Servicer's
master computer records (including archives) that shall refer to
the Collateral indicate clearly that such Collateral is subject
to first priority security interest in favor of the Collateral
Agent for the benefit of the Secured Parties. Indication of the
Collateral Agent's security interest shall be deleted from or
modified on the Servicer's computer systems when, and only when,
the Collateral in question shall have been paid in full or sold
by the Borrower in accordance herewith; and
(ix) Other Sales, Grants or Transfers. If at any time the
--------------------------------
Servicer shall propose to sell, grant a security interest in, or
otherwise transfer any interest in motor vehicle receivables to
any prospective purchaser, lender or other transferee, the
Servicer shall give to such prospective purchaser, lender, or
other transferee computer tapes, records, or print-outs
Page 58
(including any restored from archives) that, if they shall refer
in any manner whatsoever to any Collateral, shall indicate
clearly that such Collateral is subject to a first priority
security interest in favor of the Collateral Agent for the
benefit of the Secured Parties.
(b) Each of the Sellers, the Servicer and any successor Servicer
represents and warrants to the Borrower, the Agent and the Investors, as to
itself that:
(i) Organization and Good Standing. It has been duly
------------------------------
organized and is validly existing and in good standing under the
laws of the jurisdiction of its organization, with power,
authority and legal right to own its properties and to conduct
its business as such properties are currently owned and such
business is currently conducted, and had at all relevant times,
and now has, power, authority and legal right to enter into and
perform its obligations under this Agreement and the other
Transaction Documents to which it is party (in any capacity);
(ii) Due Qualification. It is duly qualified to do
-----------------
business as a foreign corporation in good standing, and has
obtained all necessary licenses and approvals, in all
jurisdictions where the failure to do so would have a material
adverse effect on its ability to perform its obligations
hereunder or under any other Transaction Document to which it is
party (in any capacity);
(iii) Power and Authority. It has the power and authority
-------------------
to execute and deliver this Agreement and the Transaction
Documents to which it is a party (in any capacity) and to carry
out its terms and their terms, respectively, and, in the case of
the Sellers, to sell Receivables to the Borrower; and the
execution, delivery and performance of this Agreement and the
Transaction Documents to which it is a party (in any capacity)
have been duly authorized by all necessary corporate action;
(iv) Binding Obligation. This Agreement and the
------------------
Transaction Documents to which it is a party (in any capacity)
shall constitute its legal, valid and binding obligations
enforceable in accordance with their respective terms, except as
enforceability may be limited by bankruptcy, insolvency,
reorganization, or other similar laws affecting the enforcement
of creditors' rights generally and by equitable limitations on
the availability of specific remedies, regardless of whether such
enforceability is considered in a proceeding in equity or at law;
(v) No Violation. The consummation of the transactions
------------
contemplated by this Agreement and the Transaction Documents to
which it is a party (in any capacity), and the fulfillment of the
terms of this
Page 59
Agreement and the Transaction Documents to which it is a party
(in any capacity), including, in the case of the Sellers, the
sale of Receivables pursuant to the Purchase Agreement, shall not
conflict with, result in any breach of any of the terms and
provisions of, or constitute (with or without notice or lapse of
time) a default under, its c ertificate or articles of
incorporation or bylaws, or any indenture, agreement, mortgage,
deed of trust or other instrument to which it is a party or by
which it is bound or any of its properties are subject, or result
in the creation or imposition of any Lien upon any of its
properties pursuant to the terms of any such indenture,
agreement, mortgage, deed of trust or other instrument, other
than this Agreement, or violate any law, order, rule or
regulation applicable to it of any court other Official Body,
having jurisdiction over it or any of its properties, or in any
way materially adversely affect the interest of the Borrower, the
Collateral Agent or the Secured Parties in any Transferred
Receivable, or affect its ability to perform its obligations
under this Agreement or under any of the other Transaction
Documents to which it is party;
(vi) No Proceedings. There are no proceedings or
--------------
investigations pending or,its knowledge, threatened against it,
before any court or other Official Body having jurisdiction over
it or its properties (A) asserting the invalidity of this
Agreement or any of the Transaction Documents, (B) seeking to
prevent the consummation of any of the transactions contemplated
by this Agreement or any of the Transaction Documents, (C)
seeking any determination or ruling that might materially and
adversely affect its performance of its obligations under, or the
validity or enforceability of, this Agreement or any of the
Transaction Documents, or (D) that could have a material adverse
effect on the Transferred Receivables;
(vii) Year 2000 Compliance. The Servicer and its
--------------------
Subsidiaries have (i) undertaken a detailed review and assessment
of all areas within its business and operations (including its
servicing operations) that could be adversely affected by the
failure of the Servicer or its Subsidiaries to be Year 2000
Compliant on a timely basis, (ii) developed a detailed plan and
timetable for becoming Year 2000 Compliant on a timely basis, and
(iii) implemented and will implement that plan in accordance with
that timetable in all material respects;
(viii) ERISA. It is in compliance in all material respects
-----
with ERISA and there is no Lien of the Pension Benefit Guaranty
Corporation on any of the Transferred Receivables or Other
Conveyed Property;
(ix) Investment Company Status. It is not an "investment
-------------------------
Page 60
company" meaning of the Investment Company Act of 1940, as
amended, or is exempt from all provisions of such Act;
(x) No Consents. It is not required to obtain the
-----------
consent of any other Person or any consent, license, approval or
authorization of, or registration or declaration with, any
Official Body in connection with the execution, delivery,
performance, validity or enforceability of this Agreement and the
Transaction Documents to which it is party (in any
capacity);
(xi) Chief Executive Office. As to AFS, its chief
----------------------
executive office is located at 200 Bailey Avenue, Fort Worth,
Texas 76107 and as to AFC and ACC, as set forth in the Purchase
Agreement;
(xii) Eligibility. As to AFS only, each Receivable
-----------
(whether or not AFS is the Seller of such Receivable) set forth
in a Schedule of Receivables is, on its Purchase Date, an
Eligible Receivable, and the representations and warranties with
respect thereto set forth on the Schedule of Representations (as
defined in the Purchase Agreement) are true and correct on such
date;and
(xiii) Other Documents. The representations and warranties
---------------
made by it (in any capacity) in each of the other Transaction
Documents to which it is a party are true and correct in all
material respects as of the date(s) made.
(c) Each Seller covenants to the Borrower, the Agent and the
Investors as follows:
(i) Preservation of Existence. Such Seller shall observe
-------------------------
all procedures required by its organizational documents and by-
laws and preserve and maintain its existence, rights, franchises
and privileges in the jurisdiction of its incorporation, and
qualify and remain qualified in good standing in each
jurisdiction where the failure to preserve and maintain such
existence, rights, franchises, privileges and qualifications
would materially adversely affect (1) the interests hereunder of
the Agent or any Affected Person, (2) the collectibility of any
Receivable or (3) its ability to perform its obligations
hereunder or under any of the other Transaction Documents.
(ii) keeping of Records and Books of Account. Such Seller
---------------------------------------
shall maintain and implement (or cause the Servicer to maintain
and implement) administrative and operating procedures
(including, without limitation, an ability to recreate records
evidencing the Receivables in the
Page 61
event of the destruction of the originals thereof) and keep and
maintain, all documents, books, records and other information
reasonably necessary or advisable for the collection of all
Transferred Receivables (including, without limitation, records
adequate to permit the daily identification of all collections of
and adjustments to each Transferred Receivable).
(iii) Separate Corporate Existence. Such Seller shall take
----------------------------
all reasonable steps to maintain its identity as a separate legal
entity from the Borrower or any of its Affiliates and to make it
manifest to third parties that it is an entity with assets and
liabilities distinct from those of the Borrower and each other
Affiliate thereof.
(iv) Tangible Net Worth. Such Seller shall maintain at all
------------------
times a positive Tangible Net Worth.
(v) Documents. Such Seller shall comply with each of the
---------
terms of the Transaction Documents to which it is party (in any
capacity) and shall not cancel or terminate any of the
Transaction Documents to which it is party (in any capacity), or
consent to or accept any cancellation or termination of any of
such agreements, or amend or otherwise modify any term or
condition of any of the Transaction Documents to which it is
party (in any capacity) or give any consent, waiver or approval
under any such agreement, or waive any default under or breach of
any of the Transaction Documents to which it is party (in any
capacity) or take any other action under any such agreement not
required by the terms thereof, unless (in each case) the Agent
shall have consented thereto.
(vi) Charter and By-Laws. As to AFC only, it shall not
-------------------
amend, modify or otherwise change any of the terms or provisions
in its certificate of incorporation or its by-laws, without the
prior written consent of the Agent.
(vii) Accounting Treatment. Such Seller shall not prepare
--------------------
any financial statements or other statements (including any tax
filings which are not consolidated with those of AmeriCredit
Corp.) which shall account for the transactions contemplated by
the Purchase Agreement in any manner other than as the sale of,
or a capital contribution of, the applicable Transferred
Receivables and the related assets by such Seller to the
Borrower.
(vii) Certificates. It will not sell, pledge, assign or
------------
transfer any Certificate to any other Person which is not a
Seller, or grant, create, incur, assume or suffer to exist any
Lien on any Certificate or any interest
Page 62
therein.
SECTION 8.7 Purchase of Receivables Upon Breach of Covenant or
--------------------------------------------------
Representation and Warranty. The Borrower or the Servicer, as the case may be,
---------------------------
shall inform the other parties to this Agreement promptly, in writing, upon the
discovery of any breach of the Servicer's or any Seller's representations and
warranties and covenants pursuant to Section 8.5(a) or 8.6 or under the Purchase
------------- ---
Agreement; provided, however, that the failure to give any such notice shall not
derogate from any obligation of the Servicer hereunder or AFS or any Seller
under the Purchase Agreement to repurchase any Transferred Receivable; provided,
further that, the Backup Servicer shall have no duty to inquire into or to
investigate the breach of any such representations and warranties and covenants.
With respect to the breach of any of the Servicer's representations and
warranties and covenants pursuant to Section 8.5(a) and 8.6(a)(i), (ii), (iii)
------------- -------- -- ---
or (iv) and with respect to the breach of AFS's representation and warranties
--
pursuant to Section 8.6(b)(xii), unless the breach shall have been cured by the
------------------
last day of the first full calendar month following the discovery by or notice
to the Servicer or AFS, as the case may be, of the breach, the Servicer or AFS,
as the case may be, shall have an obligation, and the Borrower and the Agent
shall (provided that it either has made such discovery or has received such
--------
notice thereof) enforce such obligation, to purchase or repurchase any
Transferred Receivable materially and adversely affected by the breach. The
Borrower shall notify the Agent promptly, in writing, of any failure by the
Servicer or AFS to so repurchase any Transferred Receivable. In consideration of
the purchase of the Transferred Receivable hereunder or under the Purchase
Agreement, the Servicer or AFS, as the case may be, shall remit the Purchase
Amount to the Collection Account on the date of such repurchase.
In addition to the foregoing and notwithstanding whether the related
Transferred Receivable shall have been purchased by the Servicer, the Servicer
shall indemnify the Backup Servicer, the Borrower, the Collateral Agent, the
Agent and the other Secured Parties against all costs, expenses, losses,
damages, claims and liabilities, including reasonable fees and expenses of
counsel, which may be asserted against or incurred by any of them as a result of
third party claims arising out of the events or facts giving rise to a breach of
the covenants or representations and warranties set forth in Section 8.5(a) or
--------------
8.6.
---
SECTION 8.8. Total Servicing Fee; Payment of Certain Expenses by Servicer.
------------------------------------------------------------
(a) Subject to, and in accordance with, the provisions of the Security
Agreement, on each Distribution Date, the Servicer shall be entitled to receive
out of the Collection Account the Servicing Fee for the related Collection
Period.
(b) The Servicer shall be required to pay all expenses incurred by it in
connection with its activities under this Agreement (including taxes
imposed on the
Page 63
Servicer). The Servicer shall be liable for the fees and expenses of the Backup
Servicer, the Lockbox Bank (and any fees under the Lockbox Agreement), the
Custodian, the Collateral Agent, the Agent and the Independent Accountants, to
the extent such amounts have not been paid in accordance with the Security
Agreement.
SECTION 8.9 Servicer's Certificate.
----------------------
(a) No later than 5:00 p.m., New York City time, on each Determination
Date, the Servicer shall deliver to the Backup Servicer, the Collateral Agent,
each Rating Agency, the Borrower and the Agent a Servicer's Certificate executed
by a Responsible Officer of the Servicer in the form attached hereto as Exhibit
-------
E. Transferred Receivables purchased by the Servicer or a Seller and each
-
Transferred Receivable which became a Warranty Receivable or a Defaulted
Receivable or a Delinquent Receivable or which was paid in full during the
related Collection Period shall be identified by account number (as set forth in
the Schedule of Receivables).
(b) In addition to the information required by Section 8.9(a), the
-------------
Servicer shall include in the copy of the Servicer's Certificate delivered to
the Borrower and the Agent (i) whether any Facility Termination Event or
Unmatured Facility Termination Event has occurred as of such Determination Date,
(ii) whether any Facility Termination Event or Unmatured Facility Termination
Event that may have occurred as of a prior Determination Date is deemed cured as
of such Determination Date, (iii) the Delinquency Ratio, Monthly Extension Rate
(and three month average thereof), and Portfolio Net Loss Ratio for such
Determination Date and the Servicer Delinquency Ratio as of the last day of the
preceding Collection Period, and the weighted average AmeriCredit Score of the
Receivables in the Total Receivables Pool, (iv) whether a Level I-VI Trigger
Event has occurred (specifying same) and the Stated Percentage and Required
Reserve Account Amount for such Determination Date and (v) the Borrowing Base,
Required Holdback and Deficiency Percentage for such Determination Date.
SECTION 8.10 Annual Statement as to Compliance; Notice of Servicer
-----------------------------------------------------
Termination Event.
-----------------
(a) The Servicer shall deliver to the Backup Servicer, the Collateral
Agent, each Rating Agency, the Borrower and the Agent, on or before October 31
of each year, beginning on October 31, 1999, an Officer's Certificate, dated as
of the immediately preceding June 30, stating that (i) a review of the
activities of the Servicer during the preceding 12-month period (or such other
period as shall have elapsed from the Closing Date to the date of the first such
certificate) and of its performance under this Agreement has been made under
such officer's supervision, and (ii) to such officer's knowledge, based on such
review, the Servicer has fulfilled all its obligations under this Agreement
throughout such period, or, if there has been a default in the fulfillment of
any such obligation, specifying each such default known to such officer and the
nature and status thereof.
Page 64
(b) The Borrower or the Servicer shall deliver to the Backup Servicer,
the Collateral Agent, each Rating Agency, the Borrower and the Agent, promptly
after having obtained knowledge thereof, but in no event later than two Business
Days thereafter, written notice in an Officer's Certificate of any event which
is, or with the giving of notice or lapse of time, or both, would become a
Servicer Termination Event under Section 13.1.
------------
SECTION 8.11 Annual Independent Accountants' Report.
--------------------------------------
(a) The Servicer shall cause a firm of nationally recognized
independent certified public accountants (the "Independent Accountants"), who
-----------------------
may also render other services to AmeriCredit Corp., the Servicer or to AFS, to
deliver to the Servicer, the Backup Servicer, the Collateral Agent, the Borrower
and the Agent, on or before October 31 of each year, beginning on October 31,
1999, with respect to the twelve months ended the immediately preceding June 30
(or such other period as shall have elapsed from the Closing Date to the date of
such certificate), a statement (the "Accountants' Report") addressed to
-------------------
AmeriCredit Corp. and the Agent, to the effect that such firm has audited the
consolidated financial statements of AmeriCredit Corp. and issued its report
thereon and that (i) such audit was made in accordance with generally accepted
auditing standards, and accordingly included such tests of the accounting
records and such other auditing procedures as such firm considered necessary in
the circumstances, (ii) certain agreed upon procedures were applied to three
randomly selected Servicer's Certificates (which procedures shall be submitted
for approval to the Agent, which approval shall not be unreasonably withheld)
and (iii) the firm is independent of AmeriCredit Corp., AFS and the Servicer
within the meaning of the Code of Professional Ethics of the American Institute
of Certified Public Accountants.
(b) In the event such Independent Accountants require Trust Trustee
on behalf of the Borrower and the Backup Servicer to agree to the procedures to
be performed by such firm in any of the reports required to be prepared pursuant
to this Section 8.11, the Servicer shall direct Trust Trustee on behalf of the
------------
Borrower and the Backup Servicer, in writing to so agree; it being understood
and agreed that Trust Trustee on behalf of the Borrower and the Backup Servicer
will deliver such letter of agreement in conclusive reliance upon the direction
of the Servicer, and Trust Trustee on behalf of the Borrower and the Backup
Servicer has not made any independent inquiry or investigation as to, and shall
have no obligation or liability in respect of, the sufficiency, validity or
correctness of such procedures.
SECTION 8.12 Access to Certain Documentation; Portfolio Review.
-------------------------------------------------
(a) The Servicer shall provide to representatives of the Backup
Servicer, the Collateral Agent, the Borrower and the Agent reasonable access to
the documentation regarding the Transferred Receivables including, without
limitation, copies of the
Page 65
Servicing Procedures and Credit Manual. Nothing in this Section 8.12 shall
------------
derogate from the obligation of the Servicer to observe any applicable law
prohibiting disclosure of information regarding the Obligors, and the failure of
the Servicer to provide access as provided in this Section 8.12 as a result of
------------
such obligation shall not constitute a breach of this Section 8.12.
------------
(b) The Agent shall direct Independent approved by the Agent to review
information regarding the Transferred Receivables in accordance with the agreed
upon procedures described in Section 7.3(i) or otherwise approved by the Agent.
-------------
The reviews will be performed on the first to occur of (i) 60 days after the
Closing Date and (ii) 30 days following the date on which a cumulative aggregate
of $50,000,000 Aggregate Outstanding Principal Balance of Receivables have been
purchased by the Borrower and thereafter on a quarterly basis; provided that if
--------
the rating of the long-term debt securities of AmeriCredit Corp. is rated below
B by S&P or Ba2 by Moody's then the Agent may direct the Independent Accountants
to make a review under this Section 8.12(b) on a weekly basis. The fees and
--------------
expenses of the Independent Accountants shall be paid by the Servicer.
SECTION 8.13 Monthly Tape. On or before each Determination Date, the
------------
Servicer will deliver to the Backup Servicer the Monthly Tape in a format
acceptable to the Backup Servicer containing the information with respect to the
Transferred Receivables as of the last day of the immediately preceding calendar
month necessary for preparation of the Servicer's Certificate relating to the
immediately succeeding Determination Date. Based solely on the information
contained in the Monthly Tape and the Servicer's Certificate, the Backup
Servicer shall verify the Aggregate Outstanding Principal Balance of the Total
Receivables Pool. The Backup Servicer shall recalculate the information
contained in the Servicer's Certificate delivered by the Servicer, and shall
certify to the Agent that it is correct on its face or shall notify the Servicer
and the Agent of any discrepancies, in each case, on or before the second
Business Day following the Determination Date. In the event that the Backup
Servicer reports any discrepancies, the Servicer and the Backup Servicer shall
attempt to reconcile such discrepancies prior to the related Distribution Date,
but in the absence of a reconciliation, the Servicer's Certificate shall control
for the purpose of calculations and distributions with respect to the related
Distribution Date. In the event that the Backup Servicer and the Servicer are
unable to reconcile discrepancies with respect to a Servicer's Certificate by
the related Distribution Date, the Servicer shall cause the Independent
Accountants, at the Servicer's expense, to audit the Servicer's Certificate and,
prior to the third Business Day, but in no event later than the fifth calendar
day, of the following month, reconcile the discrepancies. The effect, if any, of
such reconciliation shall be reflected in the Servicer's Certificate for such
next succeeding Determination Date.
In addition, the Servicer shall, if so requested by the Agent, deliver to
the Backup Servicer its Collection Records and its Monthly Records as soon as
practicable and in
Page 66
any event within one Business Day after demand therefor (which demand may be
made at any time after the occurrence of a Facility Termination Event or a
Servicer Termination Event or the occurrence of any event which, if uncured,
with lapse of time or notice or lapse of time and notice, would constitute a
Facility Termination Event or a Servicer Termination Event) and a computer tape
containing as of the close of business on the date of demand all of the data
maintained by the Servicer in computer format in connection with servicing the
Transferred Receivables.
Other than the duties specifically set forth in this Agreement, the Backup
Servicer shall have no obligations hereunder, including, without limitation, to
supervise, verify, monitor or administer the performance of the Servicer. The
Backup Servicer shall have no liability for any actions taken or omitted by the
Servicer. The duties and obligations of the Backup Servicer shall be determined
solely by the express provisions of this Agreement and no implied covenants or
obligations shall be read into this Agreement against the Backup Servicer.
SECTION 8.14 Retention of Servicer. AFS hereby covenants and agrees to act
---------------------
as such under this Agreement for an initial term, commencing on the Closing Date
and ending on June 30, 1999, which term shall be extendible by the Agent for
successive quarterly terms ending on each successive September 30, December 31,
March 31 and June 30 (or, pursuant to revocable written standing instructions
from time to time to the Servicer, for any specified number of terms greater
than one). Each such notice (including each notice pursuant to standing
instructions, which shall be deemed delivered at the end of successive quarterly
terms for so long as such instructions are in effect) (a "Servicer Extension
------------------
Notice") shall be delivered by the Agent to the Servicer. AFS hereby agrees
------
that, as of the date hereof and upon its receipt of any such Servicer Extension
Notice, AFS shall become bound, for the initial term beginning on the Closing
Date and for the duration of the term covered by such notice, to continue as the
Servicer subject to and in accordance with the other provisions of this
Agreement.
SECTION 8.15 Fidelity Bond. The Servicer shall maintain a fidelity bond in
-------------
such form and amount as is customary for entities acting as custodian of funds
and documents in respect of consumer contracts on behalf of institutional
investors.
SECTION 8.16 Insurance. The Servicer shall maintain customary amounts of
---------
insurance coverage, including, without limitation, commercial crime coverage,
employee dishonesty coverage, commercial auto coverage, valuable papers and
records coverage, coverage for fire, theft, workers compensation, public
liability, property damage and errors and omissions coverage. The Servicer shall
be entitled to self-insure with respect to such insurance so long as the long-
term unsecured debt obligations of the Servicer are rated in the second highest
long-term debt category by each of the Rating Agencies.
SECTIONS 8.17 Accounts.
--------
Page 67
(a) The Servicer shall establish the Collection Account in the name of the
Collateral Agent for the benefit of the Secured Parties. The Collection Account
shall be an Eligible Account and initially shall be a segregated trust account
established and maintained with the Collateral Agent. Amounts on deposit in the
Collection Account shall be invested in Permitted Investments pursuant to
written instructions from the Servicer. If written direction from the Servicer
is not timely delivered any such amounts on deposit shall be invested in the
investment described in subclause (f) of the definition of Permitted
Investments.
(b) The Servicer shall establish the Reserve Account in the name of the
Collateral Agent for the benefit of the Secured Parties. The Reserve Account
shall be an Eligible Account and initially shall be a segregated trust account
established and maintained with the Collateral Agent. Amounts on deposit in the
Reserve Account shall be invested in Permitted Investments pursuant to written
instructions from the Servicer. If written direction from the Servicer is not
timely delivered any such amounts on deposit shall be invested in the investment
described in subclause (f) of the definition of Permitted Investments.
(c) The Servicer shall establish the Collateral Account in the name of the
Collateral Agent for the benefit of the Secured Parties. The Collateral Account
shall be an Eligible Account and initially shall be a segregated trust account
established and maintained with Collateral Agent. There shall be deposited to
the Collateral Account any amount delivered to the holder of the Collateral
Account by the Borrower and designated in writing (with a copy to the Agent) to
be deposited in the Collateral Account.
SECTION 8.1 Collections.
-----------
(a) Pursuant to the Lockbox Agreement, the Lockbox Bank shall remit to
the Collection Account within two Business Days of receipt thereof (i) all
payments by or on behalf of the Obligors and (ii) all Recoveries, each as
collected during the Collection Period. In addition, the Servicer shall remit,
or cause to be remitted, all payments by or on behalf of the Obligors received
by the Servicer or the Borrower with respect to the Transferred Receivables, all
Recoveries, the purchase price paid by AFS or the Servicer with respect to any
Transferred Receivables and all payments made to the Borrower under the Interest
Rate Hedges, no later than the Business Day following receipt directly into the
Collection Account.
(b) The Servicer will be entitled to be reimbursed from amounts on
deposit in the Collection Account with respect to a Collection Period for
amounts previously deposited in the Collection Account but later determined by
the Servicer to have resulted from mistaken deposits or postings or checks
returned for insufficient funds. The amount to be reimbursed hereunder shall be
paid to the Servicer on the related
Page 68
Distribution Date upon certification by the Servicer of such amounts and the
provision of such information to the Agent as may be necessary in the opinion of
the Agent to verify the accuracy of such certification. In the event that the
Agent has not received evidence satisfactory to it of the Servicer's entitlement
to reimbursement pursuant to this Section 8.18, the Agent shall give the
Servicer and the Collateral Agent written notice to such effect and no
distribution shall be made to the Servicer in respect of such amount, or if the
Servicer prior thereto has been reimbursed, such amounts shall be withheld from
amounts otherwise distributable to the Servicer on the next succeeding
Distribution Date.
SECTION 8.19 Application of Collections. For the purposes of this
--------------------------
Agreement, all collections for a Collection Period shall be applied by the
Servicer with respect to each Transferred Receivable as follows: (i) unless
otherwise required by law, in the case of a Pre-Computed Receivable, in
accordance with the terms contained in such Pre-Computed Receivable, and (ii) in
the case of a Simple Interest Receivable, to interest and principal in
accordance with the Simple Interest Method. With respect to Simple Interest
Receivables, any prepayment of principal during each Collection Period shall be
immediately applied to reduce the Principal Balance of such Receivable during
such Collection Period.
ARTICLE IX
GRANT OF SECURITY INTERESTS
SECTION 9.1 Borrower's Grant of Security Interest. As security for the
-------------------------------------
prompt payment or performance in full when due, whether at stated maturity, by
acceleration or otherwise, of all Obligations (including all Advances, Yield and
other amounts at any time owing hereunder), the Borrower hereby assigns and
pledges to the Collateral Agent, for the benefit of the Secured Parties, and
grants to the Collateral Agent, for the benefit of the Secured Parties, a
security interest in and lien upon, all of the Borrower's right, title and
interest in and to the following, in each case whether now or hereafter existing
or in which Borrower now has or hereafter acquires an interest and wherever the
same may be located (collectively, the "Borrower Collateral"):
-------------------
(a) all Collateral;
(b) the Purchase Agreement, each Lockbox Agreement and all other
documents now or hereafter in effect relating to the purchase, servicing or
processing of Transferred Receivables (collectively, the "Borrower Assigned
-----------------
Agreements"), including (i) all rights of the Borrower to receive moneys
----------
due and to become due under or pursuant to the Borrower Assigned
Agreements, (ii) all rights of the Borrower to receive proceeds of any
insurance, indemnity, warranty or guaranty with respect to the Borrower
Assigned Agreements, (iii) the Borrower's right of foreclosure as
lienholder of the vehicles underlying the
Page 69
Receivables, (iv) claims of the Borrower for damages arising out of or
for breach of or default under the Borrower Assigned Agreements, and
(v) the right of the Borrower to amend, waive or terminate the
Borrower Assigned Agreements, to perform under the Borrower Assigned
Agreements and to compel performance and otherwise exercise all
remedies and rights under the Borrower Assigned Agreements; provided,
--------
that to the extent the foregoing applies to the Transferred
Receivables as well as other receivables originated and/or serviced by
AFS, the foregoing shall apply only to the Transferred Receivables;
(c) all of the following (the "Borrower Account Collateral"):
---------------------------
(i) the Lockbox Account and all funds held in the
Lockbox Account and all certificates and instruments, if any,
from time to time representing or evidencing the Lockbox Account
or such funds,
(ii) the Collection Account, all funds held in the
Collection Account, and all certificates and instruments, if any,
from time to time representing or evidencing the Collection
Account or such funds,
(iii) the Reserve Account, all funds held in the
Reserve Account, and all certificates and instruments, if any,
from time to time representing or evidencing the Reserve Account
or such funds,
(iv) the Collateral Account, all funds held in the
Collateral Account, and all certificates and instruments, if any,
from time to time evidencing the Collateral Account or such
funds,
(v) all investments from time to time of amounts in
the Collection Account, Reserve Account and Collateral Account,
and all certificates and instruments, if any, from time to time
representing or evidencing such investments,
(vi) all notes, certificates of deposit and other
instruments from time to time delivered to or otherwise possessed
by the Collateral Agent or any Secured Party or any assignee or
agent on behalf of the Collateral Agent or any Secured Party in
substitution for or in addition to any of the then existing
Borrower Account Collateral, and
(vii) all interest, dividends, cash, instruments and
other property from time to time received, receivable or
otherwise distributed in respect of or in exchange for any and
all of the then existing Borrower Account Collateral;
(d) each Interest Rate Hedge including all rights of the
Borrower to
Page 70
receive moneys due and to become due thereunder;
(e) all additional property that may from time to time
hereafter be granted and pledged by the Borrower or by anyone on its
behalf under this Agreement, including the deposit with the Collateral
Agent of additional moneys by the Borrower; and
(f) all proceeds, accessions, substitutions, rents, Recoveries
and profits of, or with respect to, any and all of the foregoing
Borrower Collateral (including proceeds that constitute property of
the types described in Sections 9.1(a) through (e) above) and, to the
-------------- -
extent not otherwise included, all payments under insurance (whether
or not the Collateral Agent or a Secured Party or any assignee or
agent on behalf of the Collateral Agent or a Secured Party is an
additional insured thereunder or a loss payee thereof) or any
indemnity, warranty or guaranty payable by reason of loss or damage to
or otherwise with respect to any of the foregoing Borrower Collateral.
SECTION 9.2 Delivery of Collateral. All documents in the Receivables File
----------------------
shall be delivered and held by or on behalf of the Custodian pursuant to the
Custodian Agreement, and shall be in suitable form for transfer by delivery.
SECTION 9.3 Borrower Remains Liable. Notwithstanding anything in this
-----------------------
Agreement, (a) except to the extent of the Servicer's duties hereunder, the
Borrower shall remain liable under the Transferred Receivables, Borrower
Assigned Agreements and other agreements (including each Interest Rate Hedge)
included in the Borrower Collateral to perform all of its duties and obligations
thereunder to the same extent as if this Agreement had not been executed, (b)
the exercise by a Secured Party or the Collateral Agent of any of its rights
under this Agreement, the Custodian Agreement or the Security Agreement shall
not release the Borrower, AFS, any Seller or the Servicer from any of their
respective duties or obligations under the Transferred Receivables, Borrower
Assigned Agreements or other agreements included in the Borrower Collateral, (c)
the Agent, the Secured Parties, the Collateral Agent and the Custodian shall not
have any obligation or liability under the Transferred Receivables, Borrower
Assigned Agreements or other agreements included in the Borrower Collateral by
reason of this Agreement, the Custodian Agreement or the Security Agreement, and
(d) neither the Agent, the Collateral Agent, the Custodian nor any of the
Secured Parties shall be obligated to perform any of the obligations or duties
of the Borrower, AFS, any Seller or the Servicer under the Transferred
Receivables, Borrower Assigned Agreements or other agreements included in the
Borrower Collateral or to take any action to collect or enforce any claim for
payment assigned under this Agreement.
SECTION 9.4 Covenants of the Borrower and Servicer Regarding the
----------------------------------------------------
Collateral.
----------
(a) Offices and Records. The Borrower shall keep its chief place of
-------------------
business
Page 71
and chief executive offices and the office where it keeps its records at the
location specified in Section 10.9 or, upon 60 days prior written notice to the
------------
Agent and the Collateral Agent, at such other location in a jurisdiction where
all action required by Section 9.4(e) shall have been taken with respect to the
-------------
Borrower Collateral. The Borrower and the Servicer shall, for not less than
three years or for such longer period as may be required by law, from the date
on which any Transferred Receivable arose, maintain the records with respect to
each Transferred Receivable, including records of all payments received, credits
granted and merchandise returned. The Borrower and the Servicer will permit
representatives of the Agent, the Backup Servicer, the Collateral Agent and the
Custodian at any time and from time to time during normal business hours, and at
such times outside of normal business hours as the Agent, the Backup Servicer,
the Collateral Agent and the Custodian shall reasonably request, (i) to inspect
and make copies of and abstracts from such records, and (ii) to visit the
properties of the Borrower or the Servicer utilized in connection with the
collection, processing or servicing of the Transferred Receivables for the
purpose of examining such records, and to discuss matters relating to the
Receivables or the Borrower's or Servicer's performance under this Agreement
with any officer or employee of the Borrower or Servicer having knowledge of
such matters. In connection therewith, the Agent, the Backup Servicer, the
Collateral Agent or the Custodian may institute procedures to permit it to
confirm the Obligor balances in respect of any Transferred Receivables. Each of
the Borrower and the Servicer agrees to render to the Agent, the Backup
Servicer, the Collateral Agent and the Custodian such clerical and other
assistance as may be reasonably requested with regard to the foregoing. Without
duplication of any obligations of the Servicer set forth in clause (b) below, if
a Facility Termination Event shall have occurred and be continuing, promptly
upon request therefor, the Borrower or the Servicer shall deliver to the Agent
and the Collateral Agent records reflecting activity through the close of
business on the immediately preceding Business Day.
(b) Maintain Records of Transferred Receivables. The Servicer shall, at
-------------------------------------------
its own cost and expense, maintain satisfactory and complete records of the
Collateral, including a record of all payments received and all credits granted
with respect to the Collateral and all other dealings with the Collateral. Each
of the Borrower and the Servicer will mark conspicuously with a legend, in form
and substance satisfactory to the Agent, its records, computer tapes, computer
disks and credit files pertaining to the Collateral, and its storage facilities
where it maintains information pertaining to the Collateral, to evidence this
Agreement and the assignment and security interest granted by this Article IX.
----------
(c) Performance of Borrower. Assigned Agreements. The Borrower shall (i)
--------------------------------------------
perform and observe all the terms and provisions of the Borrower Assigned
Agreements and the Interest Rate Hedges to be performed or observed by it,
maintain the Borrower Assigned Agreements and the Interest Rate Hedges in full
force and effect, enforce the Borrower Assigned Agreements and the Interest Rate
Hedges in accordance with their terms and take all such action to such end as
may be from time to
Page 72
time requested by the Agent, and (ii) upon request of the Agent, make to any
other party to the Borrower Assigned Agreements and the Interest Rate Hedges
such demands and requests for information and reports or for action as the
Borrower is entitled to make under the Borrower Assigned Agreements and the
Interest Rate Hedges.
(d) Notice of Adverse Claim. Each of the Borrower and the Servicer shall
-----------------------
advise the Agent and the Collateral Agent promptly, in reasonable detail, (i) of
any Adverse Claim known to it made or asserted against any of the Borrower
Collateral, and (ii) of the occurrence of any event which would have a material
adverse effect on the aggregate value of the Borrower Collateral or on the
assignments and security interests granted by the Borrower in this Agreement.
(e) Further Assurances; Financing Statements.
----------------------------------------
(i) Each of the Borrower, the Sellers and the Servicer severally
agrees that at any time and from time to time, at its expense, it
shall promptly execute and deliver all further instruments and
documents, and take all reasonable further action, that may be
necessary or desirable or that the Agent or the Collateral Agent may
reasonably request to perfect and protect the assignments and security
interests granted or purported to be granted by this Article IX or to
----------
enable the Agent or the Collateral Agent to exercise and enforce its
rights and remedies under this Agreement and the Security Agreement
with respect to any Borrower Collateral. Without limiting the
generality of the foregoing, the Borrower and the Sellers shall
execute and file such financing or continuation statements, or
amendments thereto, and such other instruments or notices as may be
necessary or desirable or that the Agent or the Collateral Agent may
reasonably request to protect and preserve the assignments and
security interests granted by this Agreement and the Security
Agreement.
(ii) The Borrower, the Sellers and each Secured Party hereby
severally authorize the Collateral Agent to execute and file one or
more financing or continuation statements, and amendments thereto,
relating to all or any part of the Borrower Collateral without the
signature of the Borrower, the Sellers, the Agent or the Secured
Parties where permitted by law. A carbon, photographic or other
reproduction of this Agreement or any financing statement covering the
Borrower Collateral or any part thereof shall be sufficient as a
financing statement where permitted by law. The Collateral Agent will
promptly send to AFS and the Agent any financing or continuation
statements thereto which it files without the signature of the
Borrower or a Seller and will promptly send to the Agent and AFS any
financing or continuation statements thereto which it files without
the signature of the Agent except, in the case of filings of copies
Page 73
of this Agreement as financing statements, the Collateral Agent will
promptly send to AFS the filing or recordation information with
respect thereto.
(iii) Each of the Borrower, the Sellers and the Servicer shall
furnish to the Agent and the Collateral Agent from time to time such
statements and schedules further identifying and describing the
Borrower Collateral and such other reports in connection with the
Borrower Collateral as the Agent or the Collateral Agent may
reasonably request, all in reasonable detail.
(iv) In the event three consecutive Servicer's Certificates
furnished to the Agent reflect that the Aggregate Outstanding
Principal Balance of Receivables in the Total Receivables Pool having
Obligors residing in the same state (other than Texas and California)
exceeds 10% of the Aggregate Outstanding Principal Balance of all
Receivables in the Total Receivables Pool, the Borrower shall obtain
from counsel in such state an opinion (or a reliance letter on a
recently delivered opinion) addressed to the Agent and each Rating
Agency and in form and substance reasonably acceptable to the Agent
and each Rating Agency with respect to the requirements in such state
for the assignment of a security interest in a Financed Vehicle.
SECTION 9.5 Release of Borrower Collateral.
------------------------------
(a) Generally. For purposes of selling and transferring Receivables to
---------
AFS or third parties in connection with any Take-Out Securitization, to the
extent that (immediately after giving effect to any requested release) there
exists no Borrowing Base Deficiency and, unless all Advances, Yield thereon and
other amounts due hereunder have been paid in full, there is no Facility
Termination Event or Unmatured Facility Termination Event, or, in connection
with the purchase by the Servicer of a Receivable pursuant to Section 8.4 or 8.7
----------- ---
or by a Seller under the Purchase Agreement, the Borrower may obtain releases of
the Collateral Agent's (for the benefit of the Secured Parties) security
interest in all or any part of the Borrower Collateral and from time to time.
Each request (a "Transfer Request") for a partial release of Collateral, except
----------------
in connection with the repurchase by the Servicer of a Receivable pursuant to
Section 8.4 or 8.7 or by a Seller under the Purchase Agreement, shall be
----------- ---
addressed to the Agent and the Collateral Agent, demonstrating compliance with
the immediately preceding sentence and acknowledging that the receipt of
proceeds from such sale or transfer shall be deposited into the Collection
Account.
(b) 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 Agent
shall use due diligence and reasonable efforts to review such Transfer Requests
and instruct the
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Custodian (if AFS is not the Custodian) to prepare the files, identified in each
Transfer Request, for shipment by 12:00 noon, New York City time on the second
succeeding Business Day.
(c) Continuation of Lien. Unless released in writing by the Collateral
--------------------
Agent, as herein provided, the security interest in favor of the Collateral
Agent, for the benefit of the Secured Parties, in all Borrower Collateral shall
continue in effect until such time as the Collateral Agent (on behalf of the
Secured Parties) shall have received payment in full of the proceeds from the
sale or transfer of such Borrower Collateral to third parties in accordance with
this Section 9.5.
-----------
(d) Application of Proceeds; No Duty. Neither of the Collateral Agent nor
--------------------------------
any Secured Party shall be under any duty at any time to credit Borrower for any
amount due from any third party in respect of any purchase of any Borrower
Collateral contemplated above, until the Collateral Agent has actually received
such amount in immediately available funds for deposit to the Collection
Account. Neither the Collateral Agent nor any Secured Party shall be under any
duty at any time to collect any amounts or otherwise enforce any obligations due
from any third party in respect of any such purchase of Receivables covered by
the release of such portion of Borrower Collateral or in respect of a
securitization thereof with a third party.
(e) Representation in Connection with Releases, Sales and Transfers. The
---------------------------------------------------------------
Borrower represents and warrants that each request for any release or transfer
in connection with other securitizations pursuant to Section 9.5(a) shall
--------------
automatically constitute a representation and warranty to the Secured Parties,
the Collateral Agent and the Agent to the effect that immediately before and
after giving effect to such release or Transfer Request, there is no Facility
Termination Event, or Unmatured Facility Termination Event (including, without
limitation a Borrowing Base Deficiency).
(f) Release of Security Interest. Upon receipt of a Transfer Request or,
----------------------------
in connection with the purchase by the Servicer of a Receivable pursuant to
Section 8.4 or 8.7 or by a Seller under the Purchase Agreement, upon the
------------------
Servicer's written request, and, in each case upon receipt in the Collection
Account of proceeds from the sale or transfer, the Collateral Agent shall
promptly release, at the Borrower's expense, such part of Borrower Collateral
covered in connection with the Transfer Request or such Servicer's request and
shall deliver, at the Borrower's expense, the documents and certificates on the
released portion of Borrower Collateral to the trustee or such similar entity in
connection with any Take-Out Securitization or, in connection with the purchase
by the Servicer of a Receivable pursuant to Section 8.4 or 8.7 or by a Seller
------------------
under the Purchase Agreement, the Servicer; provided that the trustee or such
--------
similar entity in connection with any Take-Out Securitization or the Servicer,
as the case may be, acknowledges and agrees (i) that all proceeds thereof that
it receives are held in trust for the Secured Parties and (ii) at such time that
the Agent or the Collateral Agent shall instruct such trustee to transfer such
proceeds, the trustee shall transfer such
Page 75
funds pursuant to such instructions.
ARTICLE X
REPRESENTATIONS AND WARRANTIES OF THE BORROWER
In order to induce the other parties hereto to enter into this Agreement
and, in the case of the Lenders, to make Advances hereunder, the Borrower hereby
represents and warrants to the Agent and the Investors as to itself, as of the
Closing Date and as of each Advance Date, as follows:
SECTION 10.1 Organization and Good Standing. The Borrower has been duly
------------------------------
organized and is validly existing as a business trust under the laws of the
State of Delaware, with power and authority to own its properties and to conduct
its business as such properties are currently owned and such business is
currently conducted. The Borrower had at all relevant times and now has, power,
authority and legal right to acquire and own the Transferred Receivables and the
Other Conveyed Property, and to grant to the Collateral Agent a security
interest in the Transferred Receivables, the Other Conveyed Property and the
other Borrower Collateral and to enter into and perform its obligations under
this Agreement.
SECTION 10.2 Due Qualification. The Borrower is duly qualified to do
-----------------
business as a foreign entity in good standing, and has obtained all necessary
licenses and approvals, in all jurisdictions in which the ownership or lease of
its property or the conduct of its business requires such qualification.
SECTION 10.3 Power and Authority. The Borrower has the power and
-------------------
authority to execute and deliver this Agreement and the other Transaction
Documents to which it is a party and to carry out its terms and their terms,
respectively; the Borrower has full power and authority to grant to the
Collateral Agent, for the benefit of the Secured Parties, a perfected first
priority security interest in the Transferred Receivables and the other Borrower
Collateral and has duly authorized such grant by all necessary corporate action;
and the execution, delivery and performance of this Agreement and the other
Transaction Documents to which it is a party have been duly authorized by the
Borrower by all necessary corporate action. The Trust Trustee is duly authorized
to execute the Transaction Documents for and on behalf of the Borrower.
SECTION 10.4 Security Interest; Binding Obligations. This Agreement and
--------------------------------------
the Transaction Documents to which it is a party have been duly executed and
delivered and shall create a valid first priority security interest (except, as
to priority, for any tax liens or mechanics liens that may arise after the
Closing Date) in the Borrower Collateral in favor of the Collateral Agent, on
behalf of the Secured Parties, enforceable against the Borrower and creditors of
and purchasers from the Borrower; and this Agreement and the other Transaction
Documents to which it is a party constitute legal,
Page 76
valid and binding obligations of the Borrower enforceable in accordance with
their respective terms, except as enforceability may be limited by bankruptcy,
insolvency, reorganization or other similar laws affecting the enforcement of
creditors' rights generally and by equitable limitations on the availability of
specific remedies, regardless of whether such enforceability is considered in a
proceeding in equity or at law.
SECTION 10.5 No Violation. The consummation of the transactions
------------
contemplated by this Agreement and the other Transaction Documents to which it
is a party, and the fulfillment of the terms of this Agreement and the other
Transaction Documents to which it is a party, shall not conflict with, result in
any breach of any of the terms and provisions of, or constitute (with or without
notice or lapse of time) a default under, the Trust Agreement, or any indenture,
agreement, mortgage, deed of trust or other instrument to which the Borrower is
a party or by which it is bound or any of its properties are subject, or result
in the creation or imposition of any Lien upon any of its properties pursuant to
the terms of any such indenture, agreement, mortgage, deed of trust or other
instrument, other than this Agreement, or violate any law, order, rule or
regulation applicable to the Borrower of any Official Body having jurisdiction
over the Borrower or any of its properties, or in any way adversely affect the
Borrower's ability to perform its obligations under this Agreement or the other
Transaction Documents to which it is a party.
SECTION 10.6 No Proceedings. There are no proceedings or investigations
--------------
pending or, to the Borrower's knowledge, threatened against the Borrower, before
any court or other Official Body having jurisdiction over the Borrower or its
properties (A) asserting the invalidity of this Agreement or any of the other
Transaction Documents, (B) seeking to prevent the consummation of any of the
transactions contemplated by this Agreement or any of the other Transaction
Documents, (C) seeking any determination or ruling that might materially and
adversely affect the performance by the Borrower of its obligations under, or
the validity or enforceability of, this Agreement or any of the other
Transaction Documents, (D) involving the Borrower or the Trust Estate (as
defined in the Trust Agreement) or (E) that could have a material adverse effect
on the Transferred Receivables.
SECTION 10.7 No Consents. The Borrower is not required to obtain the
-----------
consent of any other Person (including any holder of a Certificate) which has
not been obtained, or any consent, license, approval or authorization of, or
registration or declaration with, any Official Body in connection with the
execution, delivery, performance, validity or enforceability of this Agreement
or the other Transaction Documents to which it is a party.
SECTION 10.8 Use of Proceeds. No proceeds of any Advance will be used by
---------------
the Borrower to acquire any security in any transaction which is subject to
Section 13 or 14 of the Securities Exchange Act of 1934, as amended.
Page 77
SECTION 10.9 Chief Executive Office. The chief executive office of the
----------------------
Borrower is located at the Corporate Trust Office (as defined in the Trust
Agreement).
SECTION 10.10 Solvency. The Borrower is solvent and will not become
--------
insolvent after giving effect to the transactions contemplated by this Agreement
and the Transaction Documents. The Borrower has no Indebtedness to any Person
other than pursuant to this Agreement and the other Transaction Documents. The
Borrower, after giving effect to the transactions contemplated by this Agreement
and the other Transaction Documents, will have adequate funds to conduct its
business in the foreseeable future.
SECTION 10.11 Tax Treatment. For federal income tax purposes, each
-------------
Transferred Receivable and the related Other Conveyed Property will be treated
as owned by the Borrower. For accounting purposes, the Borrower will treat the
purchase or absolute assignment of each Transferred Receivable and Other
Conveyed Property pursuant to the Purchase Agreement as a purchase or absolute
assignment of the Seller's full right, title and ownership interest in such
Transferred Receivable and Other Conveyed Property (and those Transferred
Receivables and Other Conveyed Property contributed to the Borrower by AFS
pursuant to the Purchase Agreement shall be accounted for as an increase in the
stated capital of the Borrower) and the Borrower has not in any other manner
accounted for or treated the transfer to it of Transferred Receivables and Other
Conveyed Property.
SECTION 10.12 Compliance With Laws. The Borrower has complied and will
--------------------
comply in all material respects with all applicable laws, rules, regulations,
judgments, agreements, decrees and orders with respect to its business and
properties and all Borrower Collateral.
SECTION 10.13 Taxes. The Borrower has filed on a timely basis all tax
-----
returns (including, without limitation, foreign, federal, state, local and
otherwise) required to be filed, is not liable for taxes payable by any other
Person and has paid or made adequate provisions for the payment of all taxes,
assessments and other governmental charges due from the Borrower. No tax lien or
similar adverse claim has been filed, and no claim is being asserted, with
respect to any such tax, assessment or other governmental charge. Any taxes,
fees and other governmental charges payable by the Borrower in connection with
the execution and delivery of this Agreement and the other Transaction Documents
and the transactions contemplated hereby or thereby including the transfer of
each Transferred Receivable and Other Conveyed Property to the Borrower have
been paid or shall have been paid if and when due at or prior to the Closing
Date and the relevant Purchase Date, as the case may be.
SECTION 10.14 Certificates. Each Servicer's Certificate and Borrowing Base
------------
Confirmation is accurate in all material respects as of the date thereof.
Page 78
SECTION 10.15 No Liens, Etc. The Borrower Collateral and each part
-------------
thereof is owned by the Borrower free and clear of any Adverse Claim or
restrictions on transferability and the Borrower has the full right, corporate
power and lawful authority to assign, transfer and pledge the same and interests
therein, and upon the making of each Advance, the Collateral Agent, for the
benefit of the Secured Parties, will have acquired a perfected, first priority
and valid security interest (except, as to priority, for any tax lien or
mechanics liens that may arise after the Closing Date) in such Borrower
Collateral, free and clear of any Adverse Claim or restrictions on
transferability. No effective financing statement or other instrument similar in
effect covering all or any part of the Borrower Collateral is on file in any
recording office, except such as may have been filed in favor of the Collateral
Agent as "Secured Party" pursuant to Article IX of this Agreement or,with
----------
respect to the Transferred Receivables, in favor of the Borrower pursuant to the
Purchase Agreement.
SECTION 10.16 Purchase and Sale. Each Transferred Receivable and Other
-----------------
Conveyed Property was purchased by, or contributed to, the Borrower on the
relevant Purchase Date pursuant to the Purchase Agreement.
SECTION 10.17 Investment Company Act of 1940. Each purchase of Transferred
------------------------------
Receivables and Other Conveyed Property under the Purchase Agreement will
constitute a purchase or other acquisition of notes, drafts, acceptances, open
accounts receivable or other obligations representing part or all of the sales
price of merchandise, insurance or services within the meaning of Section
3(c)(5) of the Investment Company Act of 1940, as amended.
SECTION 10.18 Information True and Correct. All information heretofore or
----------------------------
hereafter furnished by or on behalf of the Borrower to any Lender, the
Collateral Agent or the Agent in connection with this Agreement or any
transaction contemplated hereby is and will be true and complete in all material
respects and does not and will not omit to state a material fact necessary to
make the statements contained therein not misleading.
SECTION 10.19 ERISA Compliance. The Borrower is in compliance with ERISA
----------------
and has not incurred and does not expect to incur any liabilities (except for
premium payments arising in the ordinary course of business) to the Pension
Benefit Guaranty Corporation (or any successor thereto) under ERISA.
SECTION 10.20 Financial or Other Condition. There has been no material
----------------------------
adverse change in the condition (financial or otherwise), business, operations,
results of operations, or properties of the Borrower.
SECTION 10.21 Investment Company Status. The Borrower is not an
-------------------------
"investment company" within the meaning of the Investment Company Act of 1940,
as amended, or is exempt from all provisions of such Act.
Page 79
SECTION 10.22 No Trade Names. The Borrower has no trade names, fictitious
--------------
names, assumed names or "doing business as" names.
SECTION 10.23 Separate Existence. The Borrower is operated as an entity
------------------
with assets and liabilities distinct from those of AFS and any other Affiliates
of the Borrower, and the Borrower hereby acknowledges that the Agent and each of
the Lenders are entering into the transactions contemplated by this Agreement in
reliance upon the Borrower's identity as a separate legal entity from AFS and
each such Affiliate. Since its formation, the Borrower has been (and will be)
operated in such a manner as to comply with the covenants set forth in Section
-------
11.5.
----
There is not now, nor will there be at any time in the future, any
agreement or understanding between AFS or any Seller and the Borrower (other
than as expressly set forth herein) providing for the allocation or sharing of
obligations to make payments or otherwise in respect of any taxes, fees,
assessments or other governmental charges.
SECTION 10.24 Investments. The Borrower does not own or hold, directly or
-----------
indirectly, any capital stock or equity security of, or any equity interest in,
any Person.
SECTION 10.25 Representation and Warranties True and Correct. Each of the
----------------------------------------------
representations and warranties of the Borrower contained in this Agreement and
the other Transaction Documents is true and correct in all material respects and
the Borrower hereby makes each such representation and warranty to, and for the
benefit of, the Agent and the other Secured Parties as if the same were set
forth in full herein.
SECTION 10.26 Transaction Documents. The Purchase Agreement is the only
---------------------
agreement pursuant to which the Borrower purchases and receives contributions of
Receivables, and the Transaction Documents delivered to the Agent represent all
material agreements between AFS and the Sellers, on the one hand, and the
Borrower, on the other. The Borrower has furnished to the Agent true, correct
and complete copies of each Transaction Document to which the Borrower is a
party, each of which is in full force and effect. Neither the Borrower nor any
Affiliate party thereto is in default of any of its obligations thereunder in
any material respect. Upon the purchase and/or contribution of each Receivable
pursuant to the Purchase Agreement, the Borrower shall be the lawful owner of,
and have good title to, such Receivable and all assets relating thereto, free
and clear of any Liens. All such assets are transferred to the Borrower without
recourse to a Seller except as described in the Purchase Agreement. The
purchases of such assets by the Borrower constitute valid and true sales for
consideration (and not merely a pledge of such assets for security purposes) and
the contributions of such assets received by the Borrower constitute valid and
true transfers for consideration, each enforceable against creditors of the
Sellers, and no such assets shall constitute property of a Seller.
Page 80
SECTION 10.27 Ownership of the Borrower. One hundred percent (100%) of the
-------------------------
outstanding Certificates are and will be directly owned (both beneficially and
of record) by at least two holders and such holders shall not include any Person
other than AFS, AFC or ACC. Not more than 25% of the Certificates shall at any
time be owned by ACC. All Certificates are and will be validly issued, and there
are no options, warrants or other rights to acquire Certificates or other equity
rights in the Borrower.
SECTION 10.28 Eligible Receivables. All Receivables included in the
--------------------
Borrowing Base as of the most recently delivered Servicer's Certificate or
Borrowing Base Confirmation are Eligible Receivables.
ARTICLE XI
COVENANTS OF THE BORROWER
From the date hereof until the first day, following the Commitment
Termination Date, on which all Obligations shall have been finally and fully
paid and performed, the Borrower hereby covenants and agrees with the Investors
and the Agent as follows:
SECTION 11.1 Protection of Security Interest of the Secured Parties.
------------------------------------------------------
(a) At or prior to the date of the initial Advance, the Borrower shall
have filed or caused to be filed UCC-1 financing statements, executed by the
Borrower as debtor, naming the Collateral Agent (for the benefit of the Secured
Parties) as secured party and describing the Collateral, with the office of the
Secretary of State of the State of Texas and the office of the Secretary of
State of each of Delaware and California and in such other locations as may be
necessary to perfect the security interests intended to be granted hereby or as
the Collateral Agent or the Agent shall have required. From time to time
thereafter, the Borrower shall execute and file such financing statements and
cause to be executed and filed such continuation statements, all in such manner
and in such places as may be required by law fully to preserve, maintain and
protect the interest of the Collateral Agent and the Secured Parties under this
Agreement in the Borrower Collateral and in the proceeds thereof. The Borrower
shall deliver (or cause to be delivered) to the Agent and the Collateral Agent
file-stamped copies of, or filing receipts for, any document filed as provided
above, as soon as available following such filing. In the event that the
Borrower fails to perform its obligations under this subsection, the Agent or
the Collateral Agent may do so, in each case at the expense of the Borrower.
(b) The Borrower shall not change its name, identity, or structure in any
manner that would, could or might make any financing statement or continuation
statement filed by the Borrower (or by the Agent or the Collateral Agent on
behalf of the Borrower) in accordance with paragraph (a) above seriously
misleading within the meaning of (S) 9-402(7) of the UCC, unless the Borrower
shall have given the Agent and
Page 81
the Collateral Agent at least 60 days prior written notice thereof, and shall
promptly file appropriate amendments to all previously filed financing
statements and continuation statements.
(c) The Borrower shall give the Agent at least 60 days prior written
notice of any relocation of its principal executive office if, as a result of
such relocation, the applicable provisions of the UCC would require the filing
of any amendment of any previously filed financing or continuation statement or
of any new financing statement. The Borrower shall at all times maintain its
principal executive office within the United States of America.
(d) The Borrower shall maintain its computer systems, if any, and cause
the Servicer to maintain its computer system so that, from and after the time of
the first Advance under this Agreement, its master computer records (including
archives) that shall refer to the Collateral indicate clearly that such
Collateral is subject to first priority security interest in favor of the
Collateral Agent, for the benefit of the Secured Parties. Indication of the
Collateral Agent's (for the benefit of the Secured Parties) security interest
shall be deleted from or modified on its computer systems when, and only when,
the Collateral in question shall have been paid in full.
(e) If at any time the Borrower shall propose to sell, grant a security
interest in, or otherwise transfer any interest in motor vehicle receivables to
any prospective purchaser, lender or other transferee, the Borrower shall give
to such prospective purchaser, lender, or other transferee computer tapes,
records, or print-outs (including any restored from archives) that, if they
shall refer in any manner whatsoever to any Collateral shall indicate clearly
that such Collateral is subject to a first priority security interest in favor
of the Collateral Agent, for the benefit of the Secured Parties.
SECTION 11.2 Reporting Requirements. The Borrower shall furnish, or
----------------------
to be furnished, to the Agent:
(a) as soon as available and in any event within 90 days (or
next succeeding Business Day if the last day of such period is not a
Business Day) after the end of each fiscal year, a copy of the audited
consolidated financial statements for such year for AmeriCredit Corp.
and its consolidated Subsidiaries, certified, without qualification by
Independent Accountants acceptable to the Agent and each other report
or statement sent to shareholders or publicly filed by AmeriCredit
Corp. or the Borrower;
(b) as soon as available and in any event within 45 days (or
next succeeding Business Day if the last day of such period is not a
Business Day) after the end of each of the first three quarters of
each fiscal year of AmeriCredit Corp., a consolidated balance sheet of
AmeriCredit Corp. and its consolidated Subsidiaries as of the end of
such quarter and including the prior comparable
Page 82
period, and a consolidated statement of income of AmeriCredit Corp.
and its consolidated Subsidiaries for such quarter and for the period
commencing at the end of the previous fiscal year and ending with the
end of such quarter, certified by the chief financial officer or chief
accounting officer of AmeriCredit Corp. identifying such documents as
being the documents described in this paragraph (b) and stating that
the information set forth therein fairly presents the financial
condition of AmeriCredit Corp. and its consolidated Subsidiaries as of
and for the periods then ended, subject to year-end adjustments
consisting only of normal, recurring accruals;
(c) as soon as possible and in any event within five days after
the occurrence of a Facility Termination Event or an Unmatured
Facility Termination Event, the statement of the chief financial
officer of the Borrower or AFS setting forth complete details of such
Facility Termination Event or Unmatured Facility Termination Event and
the action which the Borrower has taken, is taking and proposes to
take with respect thereto; and
(d) promptly, from time to time, such other information,
documents, records or reports respecting the Transferred Receivables,
the Other Conveyed Property or the Financed Vehicles related thereto,
the other Borrower Collateral or the condition or operations,
financial or otherwise, of the Borrower, AmeriCredit Corp., any
Seller, AFS or any of its Subsidiaries, as the Agent may, from time to
time, reasonably request.
SECTION 11.3 Preservation of Existence. The Borrower shall observe all
-------------------------
procedures required by its organizational documents and preserve and maintain
its existence, rights, franchises and privileges in the jurisdiction of its
formation and qualify and remain qualified in good standing in each jurisdiction
where the failure to preserve and maintain such existence, rights, franchises,
privileges and qualifications would materially adversely affect (1) the
interests hereunder of the Agent or any Affected Person, (2) the collectibility
of any Receivable or (3) its ability to perform its obligations hereunder or
under any of the other Transaction Documents.
SECTION 11.4 Keeping of Records and Books of Account. The Borrower shall
---------------------------------------
maintain and implement (or cause the Servicer to maintain and implement)
administrative and operating procedures (including, without limitation, an
ability to recreate records evidencing the Receivables in the event of the
destruction of the originals thereof) and keep and maintain, all documents,
books, records and other information reasonably necessary or advisable for the
collection of all Transferred Receivables (including, without limitation,
records adequate to permit the daily identification of all collections of and
adjustments to each Transferred Receivable).
SECTION 11.5 Separate Existence. The Borrower shall take all reasonable
------------------
steps (including, without limitation, all steps that the Agent may from time to
time reasonably
Page 83
request) to maintain the Borrower's identity as a separate legal entity from AFS
or any of its Affiliates (including any Seller) and to make it manifest to third
parties that the Borrower is an entity with assets and liabilities distinct from
those of AFS and each other Affiliate thereof. Without limiting the generality
of the foregoing, the Borrower shall:
(a) conduct business correspondence in its own name, follow
required trust procedures and maintain appropriate books and records;
(b) except as set forth in the Trust Agreement, not permit any
limitation on its authority to conduct its business and affairs in
accordance with accepted trust practice, and shall not authorize or
suffer any Person other than the directors and officers of the Trust
Trustee to act on its behalf with respect to matters (other than
matters customarily delegated to others under powers of attorney) for
which its representatives would customarily be responsible;
(c) subject to the terms of the Custodian Agreement, maintain or
cause to be maintained by an agent of the Borrower under the
Borrower's control physical possession of all its books and records;
(d) maintain capitalization adequate for the conduct of its
business;
(e) account for and manage its liabilities separately from those
of any other Person, including, without limitation, payment of all
payroll and other administrative expenses and taxes from its own
assets;
(f) maintain its assets separately from those of any other
Person;
(g) maintain offices through which its business is conducted
separate from those of AFS and any Affiliates of AFS (provided that,
--------
to the extent that AFS and any of its Affiliates have offices in the
same location, there shall be a fair and appropriate allocation of
overhead costs and expenses among them, and each such entity shall
bear its fair share of such expenses);
(h) not commingle its funds with those of AFS or any Affiliate
of AFS or any Affiliates of the Borrower except to the extent
contemplated herein, or use its funds for other than the Borrower's
uses; and
(i) ensure that any financial reports required of the Borrower
shall comply with GAAP and shall be issued separately from, but may be
consolidated with, any reports prepared by any of its Affiliates.
SECTION 11.6 Interest Rate Hedges. The Borrower shall maintain, at all
--------------------
times on and after the date of the initial Advance hereunder, Interest Rate
Hedges (a) between
Page 84
the Borrower and (i) CSFB or any of its Affiliates or (ii) any other 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 reasonably acceptable to
the Agent, (b) with a notional principal amount not less than the outstanding
principal amount of the Advances and with a final maturity date which is the
date of the last required Scheduled Payment of any Receivable in the Total
Receivables Pool or such earlier date approved by the Agent and the Rating
Agencies, (c) each of which has an Interest Rate Cap Strike Price no greater
than the Maximum Interest Rate Cap Strike Price and (d) which are otherwise in
form and substance reasonably acceptable to the Agent and the Rating Agencies.
SECTION 11.7 Tangible Net Worth. The Borrower shall maintain at all
------------------
times a positive Tangible Net Worth.
SECTION 11.8 Take-Out Securitization. The Borrower shall effect or cause
-----------------------
an Affiliate to effect a Take-Out Securitization no more than six months after
the Closing Date and thereafter at least once during each successive calendar
quarter.
SECTION 11.9 Sales, Liens, Etc., Against Receivables and Related Assets.
----------------------------------------------------------
The Borrower shall not, except as otherwise provided herein, sell, assign (by
operation of law or otherwise) or otherwise dispose of, or create or suffer to
exist, any Lien upon or with respect to, any Transferred Receivable or any other
Borrower Collateral.
SECTION 11.10 Stock, Merger, Consolidation, Etc. The Borrower shall not
---------------------------------
(a) Merge or consolidate with or into, or sell, convey, transfer,
exchange, lease or otherwise dispose of (whether in one transaction or in a
series of transactions) all or substantially all of its assets (whether now
owned or hereafter acquired) to, acquire all or substantially all of the assets
of, any Person or division of any Person; or, except as expressly permitted
under the terms of this Agreement and its certificate of incorporation, sell,
convey, transfer, exchange, lease or otherwise dispose of any of its assets;
(b) Issue or allow the issuance of any Certificates or other equity rights
or rights, warrants or options in respect thereof, other than the Certificates
which are and shall at all times during the term of this Agreement be legally
and beneficially owned by AFS and ACC and/or AFC, free and clear of all Liens;
or
(c) Permit ACC to own more than 25% of the Certificates outstanding at any
time.
SECTION 11.11 Change in Name. The Borrower shall not make any change to
--------------
its name or use any trade names, fictitious names, assumed names or "doing
business as"
Page 85
names.
SECTION 11.12 Indebtedness. The Borrower shall not incur, create, assume,
------------
suffer to exist or otherwise become liable with respect to any Indebtedness
other than (i) hereunder and under the other Transaction Documents and the
Backup Servicer/Collateral Agent Fee Letter, and (ii) other Indebtedness for
operational expenses of the Borrower in an amount not to exceed $50,000 at any
one time outstanding.
SECTION 11.13 Guarantees. The Borrower shall not guarantee, endorse or
----------
otherwise be or become contingently liable (including by agreement to maintain
balance sheet tests) in connection with the obligations of any other Person,
except endorsements of negotiable instruments for collection in the ordinary
course of business and reimbursement or indemnification obligations in favor of
the Agent or any Affected Person as provided for under this Agreement.
SECTION 11.14 Limitation on Transactions with Affiliates. The Borrower
------------------------------------------
shall not enter into, or be a party to any transaction with any Affiliate of the
Borrower, except for (a) the transactions contemplated by the Transaction
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 Borrower than
would be obtained in a comparable arm's-length transaction with a Person not an
Affiliate.
SECTION 11.15 Documents. The Borrower shall not cancel or terminate any
---------
of the Transaction Documents to which it is party (in any capacity), or consent
to or accept any cancellation or termination of any of such agreements, or amend
or otherwise modify any term or condition of any of the Transaction Documents to
which it is party (in any capacity) or give any consent, waiver or approval
under any such agreement, or waive any default under or breach of any of the
Transaction Documents to which it is party (in any capacity) or take any other
action under any such agreement not required by the terms thereof, unless (in
each case) the Agent shall have consented thereto .
SECTION 11.16 Trust Agreement. The Borrower shall not amend, modify or
---------------
otherwise change any of the terms or provisions in its Trust Agreement, without
(x) notice thereof being furnished by the Borrower to each Rating Agency and (y)
the prior written consent of the Agent.
SECTION 11.17 Accounting Treatment. The Borrower shall not prepare any
--------------------
financial statements or other statements (including any tax filings which are
not consolidated with those of AmeriCredit Corp.) which shall account for the
transactions contemplated by the Purchase Agreement in any manner other than as
the sale of, or a capital contribution of, the Transferred Receivables and the
related assets by the Sellers to the Borrower.
Page 86
SECTION 11.18 Limitation on Investments. The Borrower 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 Purchase Agreement.
SECTION 11.19 Distributions. The Borrower shall not declare or make (a)
-------------
payment of any distribution on or in respect of any Certificates, or (b) any
payment on account of the purchase, redemption, retirement or acquisition of any
option, warrant or other right to acquire Certificates unless (in each case) at
the time of such declaration or payment (and after giving effect thereto) no
Facility Termination Event or Unmatured Facility Termination Event shall occur
or be continuing and no amount payable by the Borrower under any Transaction
Document is then due and owing but unpaid.
SECTION 11.20 Other Liens or Interests. Except for the security interest
------------------------
granted hereunder, the Borrower will not sell, pledge, assign or transfer to any
other Person, or grant, create, incur, assume or suffer to exist any Lien on the
Borrower Collateral or any interest therein, and the Borrower shall defend the
right, title, and interest of the Collateral Agent (for the benefit of the
Secured Parties), in and to the Borrower Collateral against all claims of third
parties claiming through or under the Borrower.
ARTICLE XII
THE SERVICER
SECTION 12.1 Liability of Servicer; Indemnities.
----------------------------------
(a) The Servicer shall be liable hereunder only to the extent of the
obligations in this Agreement and the other Transaction Documents specifically
undertaken by the Servicer and the representations made by the Servicer.
(b) The Servicer shall defend, indemnify and hold harmless each
Indemnified Party from and against any and all costs, expenses, losses, damages,
claims, liabilities, penalties, fines, forfeitures and judgments, including
reasonable fees and expenses of counsel and expenses of litigation arising out
of or resulting from the use, ownership or operation of any Financed Vehicle
related to a Transferred Receivable.
(c) The Servicer shall indemnify, defend and hold harmless each
Indemnified Party from and against any taxes that may at any time be asserted
against such Indemnified Party with respect to the transactions contemplated in
this Agreement, including, without limitation, any sales, gross receipts,
general corporation, tangible personal property, transfer, privilege or license
taxes (but not including any income or franchise taxes or other taxes based upon
the net income of the applicable Indemnified
Page 87
Party, or taxes asserted with respect to, and as of the date of, the sale of the
Receivables to the Borrower) and costs and expenses in defending against the
same.
(d) The Servicer shall indemnify, defend and hold harmless each
Indemnified Party from and against any and all costs, expenses, losses, claims,
penalties, fines, forfeitures, judgments, damages and liabilities to the extent
that such cost, expense, loss, claim, penalty, fine, forfeiture, judgment,
damage or liability arose out of, or was imposed upon such Indemnified Party by
reason of the breach of this Agreement or any other Transaction Document to
which it is party by the Servicer, the negligence, misfeasance, or bad faith of
the Servicer in the performance of its duties under this Agreement or by reason
of negligent disregard of its obligations and duties under this Agreement.
(e) Indemnification under this Section 12.1 shall survive the termination
------------
of this Agreement and shall include reasonable fees and expenses of counsel and
expenses of litigation. If the Servicer has made any indemnity payments pursuant
to this Section 12.1 and the recipient thereafter collects any of such amounts
------------
from others, the recipient shall promptly repay such amounts collected to the
Servicer, without interest.
(f) Notwithstanding the indemnity provisions contained in Sections 12.1(b)
----------------
through (e), the Servicer shall not be required to indemnify any Indemnified
---
Party against any costs, expenses, losses, damages, claims or liabilities to the
extent the same shall have been (i) caused by the wilful misconduct or gross
negligence of such party, or (ii) suffered by reason of uncollectible or
uncollected Receivables not caused by the Servicer's negligence, misfeasance or
bad faith.
(g) If for any reason (other than the exclusions (i) and (ii) set forth in
Section 12.1(f)) the indemnification provided above in Section 12.1 is
--------------- ------------
unavailable to an Indemnified Party or is insufficient to hold an Indemnified
Party harmless, then the Servicer shall contribute to the amount paid or payable
by such Indemnified Party as a result of such loss, claim, damage or liability
in such proportion as is appropriate to reflect not only the relative benefits
received by such Indemnified Party, on the one hand, and the Servicer, on the
other hand, but also the relative fault of such Indemnified Party, on the one
hand, and the Servicer, on the other hand, as well as any other relevant
equitable considerations.
SECTION 12.2 Merger or Consolidation of, or Assumption of the
------------------------------------------------
Obligations of, the Servicer or Backup Servicer.
-----------------------------------------------
(a) The Servicer shall not merge or consolidate with any other Person,
convey, transfer or lease substantially all its assets as an entirety to another
Person, or permit any other Person to become the successor to the Servicer's
business unless, after the merger, consolidation, conveyance, transfer, lease or
succession, the successor or surviving entity shall be an Eligible Servicer,
shall be acceptable to the
Page 88
Agent and the Required Lenders and shall be capable of fulfilling the duties of
the Servicer contained in this Agreement. Any Person (i) into which the Servicer
may be merged or consolidated, (ii) resulting from any merger or consolidation
to which the Servicer shall be a party, (iii) which acquires by conveyance,
transfer, or lease substantially all of the assets of the Servicer, or (iv)
succeeding to the business of the Servicer, in any of the foregoing cases shall
execute an agreement of assumption to perform every obligation of the Servicer
under this Agreement and the other Transaction Documents and, whether or not
such assumption agreement is executed, shall be the successor to the Servicer
under this Agreement and the other Transaction Documents without the execution
or filing of any paper or any further act on the part of any of the parties to
this Agreement, anything in this Agreement to the contrary notwithstanding;
provided, however, that nothing contained herein shall be deemed to release the
-------- -------
Servicer from any obligation hereunder. The Servicer shall provide notice of any
merger, consolidation or succession pursuant to this Section 12.2(a) to the
---------------
Agent, each Rating Agency, the Collateral Agent, and the Backup Servicer.
Notwithstanding the foregoing, as a condition to the consummation of the
transactions referred to in clauses (i), (ii), (iii) and (iv) above, (x)
------------------------ ----
immediately after giving effect to such transaction, no representation or
warranty made pursuant to Section 8.6 shall have been breached in any material
-----------
respect (for purposes hereof, such representations and warranties shall speak as
of the date of the consummation of such transaction) and no Facility Termination
Event or Unmatured Facility Termination Event shall have occurred and be
continuing, (y) the Servicer shall have delivered to the Agent an Officer's
Certificate and an Opinion of Counsel each stating that such consolidation,
merger or succession and such agreement of assumption comply with this Section
-------
12.2(a), and (z) the Servicer shall have delivered to the Agent an Opinion of
-------
Counsel, stating, in the opinion of such counsel, either (A) all financing
statements and continuation statements and amendments thereto have been executed
and filed that are necessary to preserve and protect the security interest of
the Collateral Agent (for the benefit of the Secured Parties) in the Transferred
Receivables and other Borrower Collateral and reciting the details of the
filings or (B) no such action shall be necessary to preserve and protect such
interest.
(b) Any Person (i) into which the Backup Servicer may be merged or
consolidated, (ii) resulting from any merger or consolidation to which the
Backup Servicer shall be a party, (iii) which acquires by conveyance, transfer
or lease substantially all of the assets of the Backup Servicer, or (iv)
succeeding to the business of the Backup Servicer, in any of the foregoing cases
shall execute an agreement of assumption to perform every obligation of the
Backup Servicer under this Agreement and, whether or not such assumption
agreement is executed, shall be the successor to the Backup Servicer under this
Agreement without the execution or filing of any paper or any further act on the
part of any of the parties to this Agreement, anything in this Agreement to the
contrary notwithstanding; provided, however, that nothing contained herein shall
-------- -------
be deemed to release the Backup Servicer from any obligation.
Page 89
SECTION 12.3 Limitation on Liability of Servicer, Backup Servicer and
--------------------------------------------------------
Others.
------
(a) Neither the The Servicer shall not Servicer, the Backup Servicer nor
any of the directors or officers or employees or agents of the Servicer or
Backup Servicer shall be under any liability to the Borrower, the Investors or
the Agent, except as provided in this Agreement, for any action taken or for
refraining from the taking of any action pursuant to this Agreement; provided,
--------
however, that this provision shall not protect the Servicer, the Backup Servicer
-------
or any such person against any liability that would otherwise be imposed by
reason of a breach of this Agreement or willful misfeasance, bad faith or
negligence in the performance of duties. The Servicer, the Backup Servicer and
any director, officer, employee or agent of the Servicer or Backup Servicer may
rely in good faith on the written advice of counsel or on any document of any
kind prima facie properly executed and submitted by any Person respecting any
matters arising under this Agreement. The Backup Servicer shall not be required
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 the repayment of such funds or adequate written indemnity
against such risk or liability is not reasonably assured to it in writing prior
to the expenditure or risk of such funds or incurrence of financial liability.
(b) Unless acting as Servicer hereunder, the Backup Servicer shall not be
liable for any obligation of the Servicer contained in this Agreement, and the
Agent, the Borrower and the Investors shall look only to the Servicer to perform
such obligations.
(c) The Backup Servicer shall have no responsibility and shall not be in
default hereunder nor incur any liability for any failure, error, malfunction or
any delay in carrying out any of its duties under this Agreement if any such
failure or delay results from the Backup Servicer acting in accordance with
information prepared or supplied by a Person other than the Backup Servicer or
the failure of any such Person to prepare or provide such information. The
Backup Servicer shall have no responsibility, shall not be in default and shall
incur no liability (i) for any act or failure to act by any third party,
including the Servicer or for any inaccuracy or omission in a notice or
communication received by the Backup Servicer from any third party or (ii) that
is due to or results from the invalidity, unenforceability of any Receivable
under applicable law or the breach or the inaccuracy of any representation or
warranty made with respect to any Receivable.
SECTION 12.4 Delegation of Duties. So long as AFS is the Servicer, the
--------------------
Servicer may delegate duties under this Agreement to an Affiliate of AFS with
the prior written consent of the Agent and written notice to the Backup
Servicer. The Servicer also may at any time perform the specific duties of (a)
repossession of Financed Vehicles, (b) tracking the insurance on Financed
Vehicles and (c) pursuing the collection of deficiency balances on Delinquent
Receivables through sub-contractors who are in the business of servicing
automotive receivables, without the consent of the Agent, the Lenders or the
Backup Servicer. The Servicer may also perform other non-material
Page 90
specific duties through such sub-contractors in accordance with customary
servicing policies and procedures without the prior consent of the Agent;
provided, however, that no such delegation or subcontracting of duties by the
-------- -------
Servicer shall relieve the Servicer of its responsibility with respect to such
duties. Neither AFS nor any other party acting as Servicer hereunder shall
appoint any subservicer hereunder without the prior written consent of the Agent
and written notice to the Backup Servicer. If the Backup Servicer assumes the
role of successor Servicer, such successor Servicer may delegate its duties
under this Agreement to any Person or appoint a subservicer with the prior
consent of the Agent.
SECTION 12.5 Servicer and Backup Servicer Not to Resign. Subject to the
------------------------------------------
provisions of Section 12.2, neither the Servicer nor the Backup Servicer shall
------------
resign from the obligations and duties imposed on it by this Agreement as
Servicer or Backup Servicer except upon a determination that by reason of a
change in legal requirements the performance of its duties under this Agreement
would cause it to be in violation of such legal requirements in a manner which
would result in a material adverse effect on the Servicer or the Backup
Servicer, as the case may be, and the Agent does not elect to waive the
obligations of the Servicer or the Backup Servicer, as the case may be, to
perform the duties which render it legally unable to act or to delegate those
duties to another Person. Any such determination permitting the resignation of
the Servicer or Backup Servicer shall be evidenced by an Opinion of Counsel to
such effect delivered and acceptable to the Agent. No resignation of the
Servicer shall become effective until the Backup Servicer or an entity
acceptable to the Agent and the Required Lenders shall have assumed the
responsibilities and obligations of the Servicer. No resignation of the Backup
Servicer shall become effective until an entity acceptable to the Agent and the
Required Lenders shall have assumed the responsibilities and obligations of the
Backup Servicer; provided, however, that in the event a successor Backup
-------- -------
Servicer is not appointed within 60 days after the Backup Servicer has given
notice of its resignation as permitted by this Section 12.5, the Backup Servicer
------------
may petition a court for its removal. Notwithstanding the foregoing, the Backup
Servicer may resign for any reason, provided an entity acceptable to the Agent
and the Required Lenders shall have assumed the responsibilities and obligations
of the Backup Servicer prior to the effectiveness of any such resignation.
ARTICLE XIII
SERVICER TERMINATION EVENTS
SECTION 13.1 Servicer Termination Event. For purposes of this Agreement,
--------------------------
each of the following shall constitute a "Servicer Termination Event":
--------------------------
(a) Any failure by the Servicer or, so long as AFS or an Affiliate of the
Borrower is the Servicer, the Borrower to deliver to the Collateral Agent or the
Agent any proceeds or payment required to be so delivered under the terms of
this Agreement
Page 91
(or, if AFS or an Affiliate of the Borrower is the Servicer, under the
Purchase Agreement) that continues unremedied for a period of two Business Days
(or, with respect to any Purchase Amounts, one Business Day) after written
notice is received by the Servicer from the Agent or after discovery of such
failure by a Responsible Officer of the Servicer;
(b) Failure by the Servicer to deliver the Servicer's Certificate required
by Section 8.9 by 12:00 Noon, New York City time, on the second Business Day
-----------
after each Determination Date;
(c) Failure on the part of the Servicer to observe in all material aspects
its covenants and agreements set forth in Section 12.2(a);
---------------
(d) Failure on the part of the Servicer or, so long as AFS or an Affiliate
of the Borrower is the Servicer, the Borrower, duly to observe or perform in any
material respect any other covenants or agreements of the Servicer or, so long
as AFS is the Servicer, the Borrower, as the case may be, set forth in this
Agreement, which failure continues unremedied for a period of 30 days after the
earlier of knowledge thereof by a Responsible Officer of the Servicer and the
date on which written notice of such failure, requiring the same to be remedied,
shall have been given to the Servicer by the Agent;
(e) The entry of a decree or order for relief by a court or regulatory
authority having jurisdiction in respect of the Servicer (or, if AFS or an
Affiliate of the Borrower is the Servicer, the Borrower) in an involuntary case
under the Bankruptcy Code, as now or hereafter in effect, or another present or
future, federal or state, bankruptcy, insolvency or similar law, or appointing a
receiver, liquidator, assignee, trustee, custodian, sequestrator or other
similar official of the Servicer (or, if AFS or an Affiliate of the Borrower is
the Servicer, the Borrower) or of any substantial part of their respective
properties or ordering the winding up or liquidation of the affairs of the
Servicer (or, if AFS or an Affiliate of the Borrower is the Servicer, the
Borrower) or the commencement of an involuntary case under the Bankruptcy Code,
as now or hereinafter in effect, or another present or future federal or state
bankruptcy, insolvency or similar law and such case is not dismissed within 60
days;
(f) The commencement by the Servicer (or, if AFS or an Affiliate of the
Borrower is the Servicer, the Borrower) of a voluntary case under the Bankruptcy
Code, as now or hereafter in effect, or any other present or future, federal or
state, bankruptcy, insolvency or similar law, or the consent by the Servicer
(or, if AFS or an Affiliate of the Borrower is the Servicer, the Borrower) to
the appointment of or taking possession by a receiver, liquidator, assignee,
trustee, custodian, sequestrator or other similar official of the Servicer (or,
if AFS or an Affiliate of the
Page 92
Borrower is the Servicer, the Borrower) generally to pay its debts as such debts
become due or the taking of corporate action by the Servicer (or, if AFS or an
Affiliate of the Borrower is the Servicer, the Borrower) in furtherance of any
of the foregoing;
(g) Any representation, warranty or statement of the Servicer (or, if AFS
or an Affiliate of the Borrower is the Servicer, the Borrower) made in this
Agreement or any certificate, report or other writing delivered pursuant hereto
shall prove to be incorrect in any material respect as of the time when the same
shall have been made (excluding, however, any representation or warranty set
forth in the definition of "Eligible Receivable"), and, within 30 days after the
-------------------
earlier of knowledge thereof by a Responsible Officer of the Servicer and the
date written notice thereof shall have been given to the Servicer by the Agent,
the circumstances or condition in respect of which such representation, warranty
or statement was incorrect shall not have been eliminated or otherwise cured;
(h) The Agent shall not have delivered a Servicer Extension Notice
pursuant to Section 8.14;
------------
(i) The average of the Servicer Delinquency Ratios for the last day of
each of the preceding three Collection Periods exceeds 15.5%;
(j) The Portfolio Net Loss Ratio exceeds 8%; or
(k) The occurrence and continuance of a Facility Termination Event.
SECTION 13.2 Consequences of a Servicer Termination Event. If a Servicer
--------------------------------------------
Termination Event shall occur and be continuing, the Agent may, and, upon the
direction of the Required Lenders, the Agent shall, by written notice given to
the Servicer, terminate all of the rights and obligations of the Servicer under
this Agreement. On or after the receipt by the Servicer of such written notice
or if the Agent shall not have delivered a Servicer Extension Notice pursuant to
Section 8.14, all authority, power, obligations and responsibilities of the
------------
Servicer under this Agreement automatically shall pass to, be vested in and
become obligations and responsibilities of the Backup Servicer; provided,
--------
however, that the Backup Servicer shall have no liability with respect to any
-------
obligation which was required to be performed by the prior Servicer prior to the
date that the Backup Servicer becomes the Servicer or any claim of a third party
based on any alleged action or inaction of the prior Servicer. The Backup
Servicer is authorized and empowered by this Agreement to execute and deliver,
on behalf of the prior Servicer, as attorney-in-fact or otherwise, any and all
documents and other instruments and to do or accomplish all other acts or things
necessary or appropriate to effect the purposes of such termination, whether to
complete the transfer and endorsement of the Transferred Receivables and related
documents to show the Collateral Agent (for the benefit of the Secured Parties)
as lienholder or secured party, or otherwise. The prior Servicer agrees to
cooperate with the Backup Servicer in
Page 93
effecting the termination of the responsibilities and rights of the prior
Servicer under this Agreement, including, without limitation and at the prior
Servicer's expense, the transfer to the Backup Servicer for administration by it
of all cash amounts that shall at the time be held by the prior Servicer for
deposit, or have been deposited by the prior Servicer, in the Collection Account
or thereafter received with respect to the Transferred Receivables and the
delivery to the Backup Servicer of all Receivable Files, Monthly Records and
Collection Records and a computer tape in readable form containing all
information necessary to enable the Backup Servicer or a successor Servicer to
service the Transferred Receivables. In addition, upon the occurrence of a
Servicer Termination Event, the Servicer shall, if so requested by the Agent,
deliver to the Backup Servicer its Monthly Records within one day after demand
therefor and a computer tape or diskette (or any other means of electronic
transmission acceptable to the Backup Servicer) containing as of the close of
business on the date of demand all of the data maintained by the Servicer in
computer format in connection with servicing the Transferred Receivables. If
requested by the Agent, the Backup Servicer or successor Servicer shall
terminate the Lockbox Agreement with respect to the Transferred Receivables and
direct the Obligors to make all payments under the Transferred Receivables
directly to the successor Servicer (in which event the successor Servicer shall
process such payments in accordance with Section 8.2(e)), or to a lockbox
--------------
established by the successor Servicer at the direction of the Agent, at the
prior Servicer's expense. The terminated Servicer shall grant the Agent, the
Collateral Agent and the Backup Servicer reasonable access to the terminated
Servicer's premises at the terminated Servicer's expense.
SECTION 13.3 Appointment of Successor Servicer.
---------------------------------
(a) On and after (i) the time the Servicer receives a notice of
termination pursuant to Section 13.2 or (ii) upon the resignation of the
------------
Servicer pursuant to Section 12.5 or (iii) the receipt by the Backup Servicer
------------
(or any alternate successor Servicer appointed pursuant to Section 13.3(b)) of
---------------
written notice from the Agent that the Agent is not extending the Servicer's
term pursuant to Section 8.14, the Backup Servicer shall be the successor in all
------------
respects to the Servicer in its capacity as servicer under this Agreement and
the transactions set forth or provided for in this Agreement and shall be
subject to all the responsibilities, restrictions, duties, liabilities and
termination provisions relating thereto placed on the Servicer by the terms and
provisions of this Agreement; provided, however, that the Backup Servicer shall
-------- -------
not be liable for any acts, omissions or obligations of the Servicer prior to
such succession or for any breach by the Servicer of any of its representations
and warranties contained in this Agreement or in any related document. The
Servicer and such successor shall take such action, consistent with this
Agreement, as shall be necessary to effectuate any such succession. If a
successor Servicer is acting as Servicer hereunder, it shall be subject to
termination under Section 13.2 upon the occurrence of any Servicer Termination
------------
Event applicable to it as Servicer.
Page 94
(b) The Agent (with the consent of the Required Lenders) may exercise at
any time its right to appoint as Backup Servicer or as successor to the Servicer
a person other than the Person serving as Backup Servicer at the time and shall
have no liability to the Investors, the Borrower, AFS, the Person then serving
as Backup Servicer or any other Person if it does so. Notwithstanding the above,
if the Backup Servicer shall be legally unable or unwilling to act as Servicer
and the Agent shall fail to appoint a successor Servicer within 60 days of its
receipt of notice from the Backup Servicer to such effect, the Backup Servicer
may petition a court of competent jurisdiction to appoint any Eligible Servicer
as the successor to the Servicer. Pending such appointment, the Backup Servicer
shall act as successor Servicer unless it is legally unable to do so, in which
event the outgoing Servicer shall continue to act as Servicer until a successor
has been appointed and accepted such appointment. Subject to Section 12.5, no
------------
provision of this Agreement shall be construed as relieving the Backup Servicer
of its obligation to succeed as successor Servicer upon the termination of the
Servicer pursuant to Section 13.2, the resignation of the Servicer pursuant to
------------
Section 12.5 or the non-extension of the servicing term of the Servicer pursuant
------------
to Section 8.14. If, upon the termination of the Servicer pursuant to Section
------------ -------
13.2 or 8.14 or the resignation of the Servicer pursuant to Section 12.5, the
---- ---- ------------
Agent (with the consent of the Required Lenders) appoints a successor Servicer
other than the Backup Servicer, the Backup Servicer shall not be relieved of its
duties as Backup Servicer hereunder.
(c) Any successor Servicer appointed pursuant to this Section 13 shall be
----------
entitled to compensation based upon a rate equal to the Servicing Fee Rate. In
addition, any successor Servicer shall be entitled to receive Transition Costs
in accordance with the Security Agreement.
ARTICLE XIV
FACILITY TERMINATION EVENTS;
THEIR EFFECT
SECTION 14.1 Facility Termination Events. Each of the following shall
---------------------------
constitute a Facility Termination Event under this Agreement:
(a) Default in the payment when due of any principal of any Advance, which
default shall continue unremedied for one Business Day, or default in the
payment of any other amount payable by the Borrower hereunder, including,
without limitation, any Yield on any Advance or any Fees which default shall
continue for one Business Day; or the Borrower shall fail to comply with the
Clean-Up Requirement during any Clean-Up Period;
(b) The Borrower or AFS (in any capacity) or any Seller shall fail to
perform or observe any other term, covenant or agreement contained in this
Agreement or in any
Page 95
other Transaction Document on its part to be performed or observed and, except
in the case of the covenants and agreements contained in Sections 11.7 and 11.8,
------------- ----
as to each of which no grace period shall apply, any such failure shall remain
unremedied for 30 days (two Business Days with respect to Section 11.6) after
------------
knowledge thereof or after written notice thereof shall have been given by the
Agent to AFS;
(c) Any representation or warranty of the Borrower or AFS (in any
capacity) or any Seller made or deemed to have been made hereunder or in any
other Transaction Document or any other writing or certificate furnished by or
on behalf of the Borrower, AFS or any Seller to the Agent or the Lenders for
purposes of or in connection with this Agreement or any other Transaction
Document (including any Servicer's Certificate or any Borrowing Base
Confirmation delivered pursuant to Section 7.3) shall prove to have been false
-----------
or incorrect in any material respect when made or deemed to have been made and,
within 30 days after the earlier of knowledge thereof by a Responsible Officer
of the Borrower or AFS, as the case may be, and the date written notice thereof
shall have been given to the Borrower or AFS, as the case may be, by the Agent,
the circumstances or condition in respect of which such representation, warranty
or statement was incorrect shall not have been eliminated or otherwise cured;
provided that no breach shall be deemed to occur hereunder in respect of any
--------
representation or warranty relating to eligibility of any Receivable on its
Purchase Date to the extent AFS has repurchased such Receivable in accordance
with the provisions hereof or of the Purchase Agreement;
(d) An Event of Bankruptcy shall have occurred and remain continuing with
respect to AmeriCredit Corp., the Borrower, AFS or any Seller;
(e) The aggregate principal amount of all Advances and Accrued Expenses
outstanding on any day shall exceed the Borrowing Base on such day, and such
condition continues unremedied for one Business Day (such excess referred to as
the "Borrowing Base Deficiency");
-------------------------
(f) 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
Borrower or any material portion of the assets of AmeriCredit Corp., AFS or any
Seller 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
Borrower, a Seller or AFS and such Lien shall not have been released within 30
days;
(g) (i) Any Transaction Document or any Lien granted thereunder by the
Borrower, 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 Borrower; or (ii) the Borrower or any other party
shall, directly or indirectly, contest in any manner such effectiveness,
validity, binding nature or enforceability; or
Page 96
(iii) any Lien securing any Obligation shall, in whole or in part, not be or
cease to be a perfected first priority security interest against the Borrower;
(h) A Servicer Termination Event shall have occurred;
(i) On any Determination Date, the Delinquency Ratio averaged for such
Determination Date and the three immediately preceding Determination Dates
exceeds 2.5%;
(j) The Borrower, AmeriCredit Corp., any Seller, or AFS shall fail to pay
any principal of or premium or interest on any Indebtedness having a principal
amount of $5,000,000 (or, in the case of the Borrower, $50,000) or 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 Borrower,
AmeriCredit Corp., any Seller, or AFS, 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;
(k) There shall occur a "termination event"or "event of default" or
similar event under any other Transaction Document;
(l) Either (i) the long-term senior unsecured debt of AmeriCredit Corp. is
rated by either S&P or Moody's below B- or B1, respectively, or (ii) if
AmeriCredit Corp. is not so rated, the Agent, acting at the direction of the
Required Lenders, deems the creditworthiness of AmeriCredit Corp. to be
equivalent to a rating below B-/B1;
(m) The weighted average AmeriCredit Score for all Receivables in the
Total Receivables Pool shall at any time be less than 215;
(n) The average of the Monthly Extension Rates for three consecutive
Determination Dates shall exceed 5.0%;
(o) 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;
Page 97
(p) This Agreement and the Advances hereunder are not rated "A/A2" by S&P
and Moody's within 45 days after the Closing Date or, after such rating is
granted, the same is reduced or withdrawn by S&P or Moody's;
(q) A notice of termination with respect to the Lockbox Agreement with
respect to the Transferred Receivables shall have been delivered, or a
termination of the Lockbox Agreement shall have otherwise occurred, and a
replacement Lockbox Bank reasonably acceptable to the Agent shall not have
executed a Lockbox Agreement with respect to the Transferred Receivables in form
and substance satisfactory to the Agent within 30 days of such notice;
(r) (i) One or more final rulings or judgments shall be entered against,
or one or more settlements shall be entered into by, AmeriCredit Corp. or AFS
(and/or any Affiliate of AFS other than the Borrower) involving in the aggregate
liability (not paid or fully covered by insurance) of $500,000 or more and, in
the case of a judgment, shall remain undischarged or unstayed within 60 days
from entry thereof or (ii) one or more final rulings or judgments shall be
entered against, or one or more settlements shall be entered into by, the
Borrower involving in the aggregate liability (not paid or fully covered by
insurance) of $50,000 or more and, in the case of a judgment, shall remain
undischarged or unstayed within 60 days from entry thereof;
(s) AmeriCredit Corp. shall be a party to any transaction of merger or
consolidation in which it is not the surviving entity or shall sell all or
substantially all of its assets to another Person unless it has given prior
written notice thereof to the Agent and the following conditions are met: (i)
the Required Lenders consent in writing, and (ii) the Rating Agencies shall
confirm that such transaction will not result in a withdrawal of or reduction in
their ratings of this Agreement or the Advances hereunder;
(t) A Change of Control shall occur with respect to AmeriCredit Corp.;
(u) The Tangible Net Worth of AmeriCredit Corp. shall be less than
$200,000,000 for any period of 20 consecutive days; or
(v) Either AFS or ACC shall cease to be a direct or indirect wholly-owned
subsidiary of AmeriCredit Corp.; or AFC shall cease to be a direct or indirect
wholly-owned subsidiary of AFS; or AFS and AFC and/or ACC shall at any time own
less than 100% of the Certificates issued pursuant to the Trust Agreement.
SECTION 14.2 Effect of Facility Termination Event.
------------------------------------
(a) Optional Termination. Upon the occurrence of a Facility Termination
--------------------
Event (other than a Facility Termination Event described in Section 14.1(d)),
---------------
the Agent may, and, at the direction of the Required Lenders, the Agent shall
declare all or any portion of the outstanding principal amount of the Advances
and other Obligations to be
Page 98
due and payable and/or the Facility (if not theretofore terminated) to be
terminated, whereupon the full unpaid amount of such Advances and other
Obligations which shall be so declared due and payable shall be and become
immediately due and payable, without further notice, demand or presentment,
and/or, as the case may be, the Facility (and the Commitments of the Committed
Lenders, if any, thereunder) shall terminate.
(b) Automatic Termination. Upon the occurrence of a Facility Termination
---------------------
Event described in Section 14.1(d) or a Servicer Termination Event described in
---------------
Section 13.1(e) or (f), the Facility Termination Date shall be deemed to have
----------------------
occurred automatically, and all outstanding Advances under this Agreement and
all other Obligations under this Agreement shall become immediately and
automatically due and payable, all without presentment, demand, protest, or
notice of any kind.
SECTION 14.3 Certain Rights Upon Facility Termination Event.
----------------------------------------------
(a) In addition to the rights and remedies specified in Section 14.2, if a
------------
Facility Termination Event shall have occurred and be continuing, the Agent may
direct the Collateral Agent to exercise any of the remedies specified in the
Security Agreement or available to the Collateral Agent as a secured party under
the UCC in respect of the Borrower Collateral (or any portion thereof).
(b) The rights and remedies provided to the Collateral Agent, the Agent
and the Secured Parties herein and in the other Transaction Documents are
cumulative and not exclusive of any other rights and remedies the Collateral
Agent, the Agent and the Secured Parties may have under applicable law.
(c) If a Facility Termination Event shall have occurred and be continuing,
then at any time after the acceleration of the maturity of the Advances and
other Obligations has been made and before a judgment or decree for payment of
the money due has been obtained by the Agent as hereinafter provided, the
Required Lenders, by written notice to the Borrower and the Agent, may rescind
and annul such declaration and its consequences if:
(i) the Borrower has paid or deposited with the Agent a sum
sufficient to pay
(A) all payments of principal of and Yield on the Advances
and all other amounts that would then be due hereunder or if the
Facility Termination Event giving rise to such acceleration had
not occurred; and
(B) all sums paid or advanced by the Agent hereunder and
the reasonable compensation, expenses, disbursements and advances
of the Agent and its agents and counsel; and
Page 99
(ii) all Facility Termination Events, other than the nonpayment
of the principal of the Advances that has become due solely by such
acceleration, have been cured or waived.
No such rescission shall affect any subsequent default or impair any right
consequent thereto.
ARTICLE XV
THE AGENT
SECTION 15.1 Appointment. Each Lender hereunder hereby irrevocably
-----------
designates and appoints CSFB as Agent hereunder, and authorizes the Agent to
take such action on its behalf under the provisions of this Agreement, the
Security Agreement and the other Transaction Documents and to exercise such
powers and perform such duties as are expressly delegated to the Agent by the
terms of this Agreement, the Security Agreement and the other Transaction
Documents, together with such other powers as are reasonably incidental thereto.
Notwithstanding any provision to the contrary elsewhere in this Agreement, the
Agent shall not have any duties or responsibilities, except those expressly set
forth herein, or any fiduciary relationship with any Lender, and no implied
covenants, functions, responsibilities, duties, obligations or liabilities on
the part of the Agent to any Lender shall be read into this Agreement, the
Security Agreement or the other Transaction Documents or shall otherwise exist
against the Agent. In performing its functions and duties hereunder, the Agent
shall act solely as the agent of the Lenders, and the Agent does not assume, nor
shall be deemed to have assumed, any obligation or relationship of trust or
agency with or for any such Person.
SECTION 15.2 Delegation of Duties. The Agent may execute any of its duties
--------------------
under this Agreement, the Security Agreement and the other Transaction Documents
by or through its subsidiaries, affiliates, agents or attorneys-in-fact and
shall be entitled to advice of counsel concerning all matters pertaining to such
duties. The Agent shall not be responsible to any Lender for the negligence or
misconduct of any agents or attorneys-in-fact selected by it with reasonable
care.
SECTION 15.3 Exculpatory Provisions. Neither the Agent (acting in such
----------------------
capacity) nor any of its directors, officers, agents or employees shall be (a)
liable for any action lawfully taken or omitted to be taken by it or them or any
Person described in Section 15.2 under or in connection with this Agreement, the
------------
Security Agreement or the other Transaction Documents (except for its, their or
such Person's own gross negligence or willful misconduct), or (b) responsible in
any manner to any Person for any recitals, statements, representations or
warranties of any Person (other than itself) contained in the Transaction
Documents or in any certificate, report, statement or other
Page 100
document referred to or provided for in, or received under or in connection
with, the Transaction Documents or for the value, validity, effectiveness,
genuineness, enforceability or sufficiency of the Transaction Documents or any
other document furnished in connection therewith or herewith, or for any failure
of any Person (other than itself or its directors, officers, agents or
employees) to perform its obligations under any Transaction Document or for the
satisfaction of any condition specified in a Transaction Document. Except as
otherwise expressly provided in this Agreement, the Agent shall not be under any
obligation to any Person to ascertain or to inquire as to the observance or
performance of any of the agreements or covenants contained in, or conditions
of, the Transaction Documents, or to inspect the properties, books or records of
the Borrower, the AFS or the Servicer.
SECTION 15.4 Reliance by Agent. The Agent shall in all cases be
-----------------
entitled to rely, and shall be fully protected in relying, upon any note,
writing, resolution, notice, consent, certificate, affidavit, letter, cablegram,
telegram, telecopy, telex or teletype message, 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, without limitation, counsel to each of
the Lenders), independent accountants and other experts selected by the Agent.
The Agent shall in all cases be fully justified in failing or refusing to take
any action under this Agreement, the Security Agreement, any other Transaction
Document or any other document furnished in connection herewith or therewith
unless it shall first receive such advice or concurrence of the Lenders, as it
deems appropriate, or it shall first be indemnified to its satisfaction by the
Lenders against any and all liability, cost and expense which may be incurred by
it by reason of taking or continuing to take any such action. The Agent shall in
all cases be fully protected in acting, or in refraining from acting, under this
Agreement, the Security Agreement, the other Transaction Documents or any other
document furnished in connection herewith or therewith in accordance with a
request of the Required Lenders, and such request and any action taken or
failure to act pursuant thereto shall be binding upon all the Lenders.
SECTION 15.5 Action Upon Certain Events; Reports and Notices.
-----------------------------------------------
(a) To the extent the Agent is entitled to consent to or withhold its
consent of any waiver or amendment of this Agreement, the Security Agreement or
other Transaction Documents in accordance with the terms hereof or thereof, or
is notified in writing by a party hereto of a Facility Termination Event or
Servicer Termination Event, the Agent shall (i) give prompt notice to the
Lenders of any such waiver, amendment, Facility Termination Event or Servicer
Termination Event of which it is aware, and (ii) take such action with respect
to such waiver, amendment, Facility Termination Event or Servicer Termination
Event as shall be directed by the Required Lenders; provided, however, that
-------- -------
unless and until the Agent shall have received such directions, the Agent may
(but shall not be obligated to) take such action, or refrain from taking such
action, with respect to such waiver, amendment, Facility Termination Event or
Servicer
Page 101
Termination Event, as applicable, as the Agent shall, in its sole discretion,
deem advisable and in the best interests of the Lenders.
(b) The Agent shall upon request promptly provide the Lenders with copies
of reports and notices received by it hereunder and under the Custodian
Agreement and the Security Agreement.
SECTION 15.6 Non-Reliance on Agent. The Lenders expressly acknowledge
---------------------
that neither the 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 Agent hereafter taken, including, without limitation, any
review of the affairs of either the Borrower, any Seller, AFS, the Servicer or
the Backup Servicer, shall be deemed to constitute any representation or
warranty by the Agent to any Lender. Except as expressly provided herein, the
Agent shall not have any duty or responsibility to provide any Lender with any
credit or other information concerning the Borrower Collateral or the business,
operations, property, prospects, financial and other condition or
creditworthiness of the Borrower, AFS, any Seller, the Servicer, the Lenders or
the Backup Servicer which may come into the possession of the Agent or any of
its officers, directors, employees, agents, attorneys-in-fact or affiliates
SECTION 15.7 Indemnification. The Committed Lenders agree to indemnify
---------------
the Agent and its officers, directors, employees, representatives and agents (to
the extent not reimbursed by the Borrower, the Servicer or AFS under the
Transaction Documents, and without limiting the obligation of such Persons to do
so in accordance with the terms of the Transaction Documents), ratably according
to their Commitment Percentages, from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind or nature whatsoever (including, without
limitation, the reasonable fees and disbursements of counsel for the Agent or
the affected Person in connection with any investigative, or judicial proceeding
commenced or threatened, whether or not the Agent or such affected Person shall
be designated a party thereto) that may at any time be imposed on, incurred by
or asserted against the Agent or such affected Person as a result of, or arising
out of, or in any way related to or by reason of, any of the transactions
contemplated hereunder or under the Transaction Documents or any other document
furnished in connection herewith or therewith (but excluding any such
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements resulting solely from the gross negligence or
willful misconduct of the Agent or such affected Person).
SECTION 15.8 Successor Agent. The Agent may, upon five (5) days'
---------------
notice to the Lenders (with a copy to the Borrower), resign as Agent; provided,
--------
in either case, that a Lender agrees to become the successor Agent hereunder in
accordance with the next sentence. If the Agent shall resign as Agent under this
Agreement, then the Required Lenders during such period shall appoint from among
the Committed Lenders a
Page 102
successor agent, whereupon such successor agent shall succeed to the rights,
powers and duties of the Agent, and the term "Agent" shall mean such successor
agent, effective upon its acceptance of such appointment, and the former Agent's
rights, powers and duties as Agent shall be terminated, without any other or
further act or deed on the part of such former Agent or any of the parties to
this Agreement. After the retiring Agent's resignation hereunder as Agent, the
provisions of this Article XV shall inure to its benefit as to any actions taken
----------
or omitted to be taken by it while it was Agent under this Agreement.
SECTION 15.9 Liability of the Agent. Notwithstanding any provision of
----------------------
this Agreement, the Security Agreement or any other Transaction Document: (i)
the Agent shall not have any obligations under this Agreement, the Security
Agreement or any other Transaction Document other than those specifically set
forth herein and therein, and no implied obligations of the Agent shall be read
into this Agreement, the Security Agreement or any other Transaction Document;
and (ii) in no event shall the Agent be liable under or in connection with this
Agreement, the Security Agreement or any other Transaction Document for
indirect, special, or consequential losses or damages of any kind, including
lost profits, even if advised of the possibility thereof and regardless of the
form of action by which such losses or damages may be claimed. Neither the Agent
nor any of its respective directors, officers, agents or employees shall be
liable for any action taken or omitted to be taken in good faith by it or them
under or in connection with this Agreement, the Security Agreement or any other
Transaction Document, except for its or their own gross negligence or willful
misconduct. Without limiting the foregoing, the Agent (a) may consult with legal
counsel (including counsel for the Lenders, the Borrower or the Servicer),
independent public accountants and other experts selected by it and shall not be
liable for any action taken or omitted to be taken in good faith by it in
accordance with the advice of such counsel, accountants or experts, (b) shall
not be responsible to the Lenders, the Borrower, AFS, the Servicer, any Seller,
or the Backup Servicer for any statements, warranties or representations (other
than its own statements) made in or in connection with this Agreement, the
Security Agreement or the other Transaction Documents, (c) shall not be
responsible to the Lenders, the Borrower, the AFS, the Servicer, any Seller or
the Backup Servicer for the due execution, legality, validity, enforceability,
genuineness, sufficiency or value of this Agreement, the Security Agreement or
the other Transaction Documents (other than the legality, validity,
enforceability or genuineness of its own execution, authorization and
performance hereof and thereof), (d) shall incur no liability under or in
respect of any of the commercial paper or other obligations of the Lenders under
this Agreement, the Security Agreement or the other Transaction Documents and
(e) shall incur no liability under or in respect of this Agreement, the Security
Agreement or the other Transaction Documents by acting upon any notice
(including notice by telephone), consent, certificate or other instrument or
writing (which may be by facsimile) believed by it to be genuine and signed or
sent by the proper party or parties. Notwithstanding anything else herein or in
the other Transaction Documents, it is agreed that where the Agent may be
required under this Agreement, the Security
Page 103
Agreement or the other Transaction Documents to give notice of any event or
condition or to take any action as a result of the occurrence of any event or
the existence of any condition, the Agent agrees to give such notice or take
such action only to the extent that it has actual knowledge of the occurrence of
such event or the existence of such condition, and shall incur no liability for
any failure to give such notice or take such action in the absence of such
knowledge.
SECTION 15.10 Agent and Affiliates. The Agent and any of its Affiliates
--------------------
may generally engage in any kind of business with the Borrower, the Servicer,
any Seller, AFS, the Backup Servicer, any Obligor, any of their respective
Affiliates and any Person who may do business with or own securities of the
Borrower, the Servicer, any Seller, AFS, the Backup Servicer, any Obligor or any
of their respective Affiliates, all as if the Agent were not the Agent hereunder
and without any duty to account therefor to any Lender.
ARTICLE XVI
ASSIGNMENTS
SECTION 16.1 Restrictions on Assignments. Except as specifically
---------------------------
provided herein (with respect to the Servicer and the Backup Servicer), neither
the Borrower, the Servicer, AFS, any Seller nor Backup Servicer may assign any
of their respective rights or obligations hereunder or any interest herein
without the prior written consent of the Agent and all the Lenders or, in the
case of Backup Servicer, the Agent and the Required Lenders. No Lender may
assign its rights or obligations hereunder, any Advance or the Note (or any
portion thereof) to any Person without the prior written consent of the Borrower
and the Agent (as to the Borrower only, such consent not to be unreasonably
withheld or delayed); provided, however, that any Lender may assign, or grant a
-------- -------
security interest in, all or any portion of the Advances and the Note to (i)
CSFB or any of its Affiliates or another Lender or (ii) any Person managed by
CSFB or any of its Affiliates, and (iii) any Liquidity Provider (each, an
"Eligible Assignee"), in each case under clauses (i), (ii) and (iii) above,
-----------------
without the prior written consent of the Borrower; provided, further, however,
-------- ------- -------
that after the occurrence of the Facility Termination Date, any Lender may,
subject to the provisions of Section 16.5, assign all or a portion of the
------------
Advance or Note held by it to a Person other than those identified in clauses
(i), (ii) and (iii) above without the prior written consent of the Borrower.
SECTION 16.2 Documentation. Each Lender shall deliver to each
-------------
assignee an assignment, in such form as such Lender and the related assignee may
agree, duly executed by such Lender assigning any such rights, obligations,
Advance or Note to the assignee; and such Lender shall promptly execute and
deliver all further instruments and documents, and take all further action, that
the assignee may reasonably request, in order to perfect, protect or more fully
evidence the assignee's right, title and interest in and to the items assigned,
and to enable the assignee to exercise or enforce any
Page 104
rights hereunder or under the Note evidencing such Advance.
SECTION 16.3 Rights of Assignee. Upon the foreclosure of any
------------------
assignment of any Advances made for security purposes, or upon any other
assignment of any Advance from any Lender pursuant to this Article XVI, the
-----------
respective assignee receiving such assignment shall have all of the rights of
such Lender hereunder with respect to such Advances and all references to the
Lender or Investors in Section 6.1 shall be deemed to apply to such assignee.
-----------
SECTION 16.4 Notice of Assignment. Each Lender shall provide notice
--------------------
to the Borrower of any assignment hereunder by such Lender to any assignee. Each
Lender authorizes the Agent to, and the Agent agrees that it shall, endorse the
Note to reflect any assignments made pursuant to this Article XVI or otherwise.
-----------
SECTION 16.5 Registration; Registration of Transfer and Exchange.
---------------------------------------------------
(a) The Agent shall keep a register (the "Note Register") in which,
-------------
subject to such reasonable regulations as it may prescribe, the Agent shall
provide for the registration of the Note and of transfer of interests in the
Note. The Agent is hereby appointed "Note Registrar" for the purpose of
--------------
registering the Note and transfers of the Note as herein provided.
(b) Each person who has or who acquired a Note or interest therein
shall be deemed by such acquisition to have agreed to be bound by the provisions
of this Section 16.5. No Note may be transferred prior to the Commitment
------------
Termination Date except to a successor Agent hereunder. Thereafter the Note may
be exchanged (in accordance with Section 16.5(c)) and transferred to the holders
----------------
(or their agents or nominees) of the Advances and to any assignee (in accordance
with Section 16.1) (or its agent or nominee) of all or a portion of the
------------
Advances. The Agent shall not register (or cause to be registered) the transfer
of the Note, unless the proposed transferee shall have delivered to the Agent
(i) either (x) evidence satisfactory to it that the transfer of such Note is
exempt from registration or qualification under the Securities Act of 1933, as
amended, and all applicable state securities laws and that the transfer does not
constitute a "prohibited transaction" under ERISA or (y) an express agreement by
the proposed transferee to be bound by and to abide by the provisions of this
Section 16.5, the restrictions noted on the face of such Note and (ii) a
------------
properly executed Form W-9 and, in the case of a transferee who is a foreign
person (within the meaning of Section 7701(a)(5) of the Code), a properly
executed Form 4224 or Form 1001.
(c) After the Commitment Termination Date, at the option of the
holder thereof, the Note may be exchanged for one or more new Notes of any
authorized denominations and of a like class and aggregate principal amount at
an office or agency of the Borrower. Whenever any Notes are so surrendered for
exchange, the Borrower shall execute and deliver (through the Agent) the new
Notes which the holder
Page 105
making the exchange is entitled to receive.
(d) Upon surrender for registration of transfer of any Note at an office
or agency of the Borrower, the Borrower shall execute and deliver (through the
Agent), in the name of the designated transferee or transferees, one or more new
Notes of any authorized denominations and of a like class and aggregate
principal amount.
(e) All Notes issued upon any registration of transfer or exchange of any
Note in accordance with the provisions of this Agreement shall be the valid
obligations of the Borrower, evidencing the same debt, and entitled to the same
benefits under this Agreement, as the Note(s) surrendered upon such registration
of transfer or exchange.
(f) Every Note presented or surrendered for registration of transfer or
for exchange shall (if so required by the Borrower or the Agent) be fully
endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Note Registrar, duly executed by the holder thereof or his
attorney duly authorized in writing. Each such Note shall be accompanied by a
statement providing the name of the transferee and indicating whether the
transferee is subject to income tax backup withholding requirements and whether
the transferee is the sole beneficial owner of such Notes.
(g) No service charge shall be made for any registration of transfer or
exchange of Notes, but the Borrower may require payment from the transferee
holder of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any registration of transfer of exchange of
Notes, other than exchanges pursuant to this Section 16.5.
------------
(h) The holders of the Notes shall be bound by the terms and conditions of
this Agreement.
SECTION 16.6 Mutilated, Destroyed, Lost and Stolen Notes.
--------------------------------------------
(a) If any mutilated Note is surrendered to the Agent, the Borrower shall
execute and deliver (through the Agent) in exchange therefor a new Note of like
class and tenor and principal amount and bearing a number not contemporaneously
outstanding.
(b) If there shall be delivered to the Borrower and the Agent prior to the
payment of the Notes (i) evidence to their satisfaction of the destruction, loss
or theft of any Note and (ii) such security or indemnity as may be required by
them to save each of them and any agent of either of them harmless, then, in the
absence of notice to the Borrower or the Agent that such Note has been acquired
by a bona fide purchaser, the Borrower shall execute and deliver (through the
---------
Agent), in lieu of any such destroyed, lost or stolen Note, a new Note of like
class, tenor and principal amount and bearing a
Page 106
number not contemporaneously outstanding.
(c) Upon the issuance of any new Note under this Section 16.6, the
------------
Borrower may require the payment from the transferor holder of a sum sufficient
to cover any tax or other governmental charge that may be imposed in relation
thereto and any other expenses connected therewith.
(d) Every new Note issued pursuant to this Section 16.6 and in accordance
------------
with the provisions of this Agreement, in lieu of any destroyed, lost or stolen
Note shall constitute an original additional contractual obligation of the
Borrower, whether or not the destroyed, lost or stolen Note shall be at any time
enforceable by anyone, and shall be entitled to all the benefits of this
Agreement equally and proportionately with any and all other Notes duly issued
hereunder.
(e) The provisions of this Section 16.6 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.
SECTION 16.7 Persons Deemed Owners. The Borrower, the Servicer, the
---------------------
Agent, the Collateral Agent and any agent for any of the foregoing may treat the
holder of any Note as the owner of such Note for all purposes whatsoever,
whether or not such Note may be overdue, and none of the Borrower, the Servicer,
the Agent, the Collateral Agent and any such agent shall be affected by notice
to the contrary.
SECTION 16.8 Cancellation. All Notes surrendered for payment or
------------
registration of transfer or exchange shall be promptly canceled. The Borrower
shall promptly cancel and deliver to the Agent any Notes previously
authenticated and delivered hereunder which the Borrower may have acquired in
any manner whatsoever, and all Notes so delivered shall be promptly canceled by
the Borrower. No Notes shall be authenticated in lieu of or in exchange for any
Notes canceled as provided in this Section 16.8, except as expressly permitted
------------
by this Agreement.
SECTION 16.9 Participations.
--------------
(a) At any time and from time to time, each Lender may, in accordance with
applicable law, at any time grant participations in all or a portion of its
Commitment and/or its interest in the Advances and other payments due to it
under this Agreement to any Person (each, a "Participant"); provided, however,
----------- -------- -------
that no participation shall be granted to any Person unless and until the Agent
and, if the proposed Participant is other than a Person which at such time is an
Eligible Assignee and no Facility Termination Event shall have occurred, the
Borrower shall have consented thereto (which consent shall not be unreasonably
withheld or delayed). Each Lender hereby acknowledges and agrees that (A) any
such participation will not alter or affect such Lender's direct obligations
hereunder, and (B) neither the Borrower, the Agent nor the
Page 107
Servicer shall have any obligation to have any communication or relationship
with any Participant. Each Participant shall comply with the provisions of
Section 5.1(b). No Participant (i) which is other than an Eligible Assignee
--------------
shall be entitled to receive additional amounts under Section 6.1 in excess of
-----------
the additional amounts its lead Lender would have been entitled to receive had
such participation not been granted unless such Participant was consented to by
the Borrower or (ii) shall be entitled to transfer all or any portion of its
participation without the prior written consent of the Agent and, if the
proposed transferee is other than an Eligible Assignee and no Facility
Termination Event shall have occurred, the Borrower (which consent will not be
unreasonably withheld or delayed).
(b) Each Lender may pledge its interest in the Advances and the Note to
any Federal Reserve Bank as collateral in accordance with applicable law.
ARTICLE XVII
INDEMNIFICATION
SECTION 17.1 General Indemnity. Without limiting any other rights which any
-----------------
such Person may have hereunder or under applicable law, AFS hereby agrees to
indemnify each of the Agent, the Investors, the Collateral Agent, the Custodian
(if other than AFS), the Backup Servicer, the Borrower, the Trust Trustee and
each other Affected Person and each of their Affiliates, and each of their
respective successors, transferees, participants and assigns and all officers,
directors, shareholders, controlling persons, employees and agents of any of the
foregoing (each of the foregoing Persons being individually called an
"Indemnified Party"), forthwith on demand, from and against any and all damages,
-----------------
losses, claims, liabilities and related costs and expenses, including reasonable
attorneys' fees and disbursements (all of the foregoing being collectively
called "Indemnified Amounts") awarded against or incurred by any of them arising
-------------------
out of or relating to any Transaction Document or the transactions contemplated
thereby or the use of proceeds therefrom by the Borrower, including (without
limitation) in respect of the funding of any Advance or in respect of any
Transferred Receivable, excluding, however, (a) Indemnified Amounts to the
--------- -------
extent determined by a court of competent jurisdiction to have resulted from
gross negligence or willful misconduct on the part of such Indemnified Party or
its agent or subcontractor, (b) except as otherwise provided herein, non-payment
by any Obligor of an amount due and payable with respect to a Transferred
Receivable, (c) any loss in value of any Financed Vehicle or Permitted
Investment due to changes in market conditions or for other reasons beyond the
control of AFS or the Borrower or (d) any tax upon or measured by net income on
any Indemnified Party. Without limiting the foregoing, but subject to the
exclusions (a) through (d) above, AFS agrees to indemnify each Indemnified Party
for Indemnified Amounts arising out of or relating to:
(i) the breach of any representation or warranty made by the
Page 108
Borrower (or any of its officers) or AFS (in any capacity) or any
Affiliate of AFS under or in connection with this Agreement or the
other Transaction Documents, any Servicer's Certificate, Borrowing
Base Confirmation or any other information, report or certificate
delivered by the Borrower or Servicer or AFS (in any capacity) or an
Affiliate of AFS pursuant hereto or thereto, which shall have been
false or incorrect in any material respect when made or deemed
made;
(ii) the failure by the Borrower, a Seller or AFS (in any
capacity) to comply in any material way with any applicable law, rule
or regulation with respect to any Transferred Receivable or any
Financed Vehicle, or the nonconformity of any Transferred Receivable
with any such applicable law, rule or regulation;
(ii) the failure to vest and maintain vested in the Collateral
Agent, for the benefit of the Secured Parties, a first-priority
security interest in all the Borrower Collateral, free and clear of
any Lien, other than a Lien arising solely as a result of an act of
any Investor, or any assignee of any Investor;
(iv) any dispute, claim, offset or defense (other than
discharge in bankruptcy) of an Obligor to the payment of any
Transferred Receivable (including, without limitation, a defense based
on such Transferred Receivable not being a legal, valid and binding
obligation of such Obligor enforceable against it in accordance with
its terms);
(v) any failure of AFS or an Affiliate of AFS, as Servicer, to
perform its duties or obligations in accordance with the provisions of
Article VIII or any provision contained in any Transaction
------------
Document;
(vi) any claim involving products liability that arises out of
or relates to merchandise or services that are the subject of any
Transferred Receivable or strict liability claim in connection with
any Financed Vehicle related to a Transferred Receivable;
(vii) any tax or governmental fee or charge (but not including
taxes upon or measured by net income), all interest and penalties
thereon or with respect thereto, and all out-of-pocket costs and
expenses, including the reasonable fees and expenses of counsel in
defending against the same, which may arise by reason of the making,
maintenance or funding, directly or indirectly, of any Advance, or any
other interest in the Borrower Collateral;
(viii) the offering or effectuation of any Take-Out
Securitization; or
Page 109
(ix) the commingling of the proceeds of the Borrower Collateral
at any time with other funds.
SECTION 17.2 Contribution. If for any reason (other than the exclusions (a)
------------
through (d) set forth in the first paragraph of Section 17.1) the
------------
indemnification provided above in Section 17.1 is unavailable to an Indemnified
------------
Party or is insufficient to hold an Indemnified Party harmless, then AFS shall
contribute to the amount paid or payable by such Indemnified Party as a result
of such loss, claim, damage or liability in such proportion as is appropriate to
reflect not only the relative benefits received by such Indemnified Party, on
the one hand, and AFS, its Affiliates and the Borrower, on the other hand, but
also the relative fault of such Indemnified Party, on the one hand, and AFS, its
Affiliates or the Borrower, on the other hand, as well as any other relevant
equitable considerations.
ARTICLE XVIII
MISCELLANEOUS
SECTION 18.1 No Waiver; Remedies. No failure on the part of any Investor,
-------------------
the Agent, any Indemnified Party or any Affected Person to exercise, and no
delay in exercising, any right, power or remedy hereunder shall operate as a
waiver thereof; nor shall any single or partial exercise by any of them of any
right, power or remedy hereunder preclude any other or further exercise thereof,
or the exercise of any other right, power or remedy. The remedies herein
provided are cumulative and not exclusive of any remedies provided by law.
Without limiting the foregoing, each Investor and Participant is hereby
authorized by the Borrower at any time and from time to time, to the fullest
extent permitted by law, to set off and apply any and all deposits (general or
special, time or demand, provisional or final) at any time held and other
indebtedness at any time owing by it to or for the credit or the account of the
Borrower, now or hereafter existing under this Agreement, to the Agent, any
Affected Person, any Indemnified Party or any Investor or their respective
successors and assigns.Amendments,
SECTION 18.2 Amendments, Waivers. This Agreement may not be amended,
-------------------
supplemented or modified nor may any provision hereof be waived except in
accordance with the provisions of this Section 18.2. With the written consent of
------------
the Required Lenders, the Agent, the Borrower, the Servicer, AFC, ACC and the
Backup Servicer may, from time to time, enter into written amendments,
supplements, waivers or modifications hereto for the purpose of adding any
provisions to this Agreement or changing in any manner the rights of any party
hereto or waiving, on such terms and conditions as may be specified in such
instrument, any of the requirements of this Agreement; provided, however, that
-------- -------
no such amendment, supplement, waiver or modification shall (i) reduce the
amount of or extend the maturity of any payment with
Page 110
respect to an Advance or reduce the rate or extend the time of payment of Yield
thereon, or reduce or alter the timing of any other amount payable to any Lender
hereunder, in each case without the consent of each Lender affected thereby,
(ii) amend, modify or waive any provision of this Section 18.2 or 18.12, or
-------------
reduce the percentage specified in the definition of Required Lenders, in each
case without the written consent of all Lenders or (iii) amend, modify or waive
any provision of Article XV of this Agreement without the written consent of the
----------
Agent and the Required Lenders. Any waiver of any provision of this Agreement
shall be limited to the provisions specifically set forth therein for the period
of time set forth therein and shall not be construed to be a waiver of any other
provision of this Agreement.
SECTION 18.3 Notices, Etc. All notices and other communications provided
------------
for hereunder shall, unless otherwise stated herein, be in writing (including
facsimile communication) and shall be personally delivered or sent by certified
mail, postage prepaid, or by facsimile, to the intended party (i) in the case of
the Borrower, at the Corporate Trust Office with a copy to AFS and (ii) in the
case of the other parties hereto, at the address or facsimile number of such
party set forth under its name on the signature pages hereof or in its Joinder
Supplement or assignment documentation, or at such other address or facsimile
number as shall be designated by such party in a written notice to the other
parties hereto. All such notices and communications shall be effective, (a) if
personally delivered, when received, (b) if sent by certified mail, three
Business Days after having been deposited in the mail, postage prepaid, (c) if
sent by overnight courier, one Business Day after having been given to such
courier, and (d) if transmitted by facsimile, when sent, receipt confirmed by
telephone or electronic means, except that notices and communications pursuant
to Section 2.2 shall not be effective until received.Costs, Expenses and Taxes.
-----------
SECTION 18.4 Costs, Expense and Taxes.
------------------------
(a) In addition to the rights of indemnification granted under Section
-------
17.1, AFS agrees to pay on demand all reasonable costs and expenses of the Agent
----
in connection with the preparation (subject to the Fee Letter), execution,
delivery, syndication and administration of this Agreement, any Noncommitted
Lender Liquidity Arrangement or other liquidity support facility and the other
documents and agreements to be delivered hereunder or with respect hereto, and
AFS further agrees to pay all reasonable costs and expenses of the Agent in
connection with any amendments, waivers or consents executed in connection with
this Agreement and any Noncommitted Lender Liquidity Arrangement or other
liquidity support facility, including, without limitation, the reasonable fees
and out-of-pocket expenses of counsel for the Agent with respect thereto and
with respect to advising the Agent as to its rights and remedies under this
Agreement and any Noncommitted Lender Liquidity Arrangement or other liquidity
support facility, and to pay all costs and expenses, if any (including
reasonable counsel fees and expenses), of the Agent, the Lenders, the Investors,
the Collateral Agent and their respective Affiliates, in connection with the
enforcement of
Page 111
this Agreement, any of the other Transaction Documents and/or any Noncommitted
Lender Liquidity Arrangement or other liquidity support facility and the other
documents and agreements to be delivered hereunder or with respect hereto.
(b) In addition, AFS shall pay any and all stamp, personal property,
transfer and other taxes and fees payable in connection with the execution,
delivery, filing and recording of this Agreement, the Note, applicable UCC
financing statements or the other documents or agreements to be delivered
hereunder, and the pledge of the Borrower Collateral, and agrees to save each
Indemnified Party harmless from and against any liabilities with respect to or
resulting from any delay in paying or omission to pay such taxes and
fees.
SECTION 18.5 Binding Effect; Survival. This Agreement shall be binding upon
------------------------
and inure to the benefit of the Borrower, the Servicer, the Backup Servicer,
AFC, ACC, AFS, the Collateral Agent, the Investors, the Agent and their
respective successors and assigns, and the provisions of Section 5.1(b), Article
-------------- -------
VI, Section 12.1, and Article XVII shall inure to the benefit of the Affected
-- ------------ ------------
Persons and the Indemnified Parties, as the case may be, and their respective
successors and permitted assigns; provided, however, nothing in the foregoing
-------- -------
shall be deemed to authorize any assignment not permitted by Article XVI. This
-----------
Agreement shall create and constitute the continuing obligations of the parties
hereto in accordance with its terms, and shall remain in full force and effect
until such time, after the Commitment Termination Date, when all Obligations
have been finally and fully paid and performed. The rights and remedies with
respect to any breach of any representation and warranty made by the Borrower
pursuant to Article IX and the indemnification and payment provisions of Article
---------- -------
VI, Section 12.1, and Article XVII and the provisions of Section 18.10 , Section
-- ------------ ------------ ------------- -------
18.12 and Section 18.13 shall be continuing and shall survive any termination of
----- -------------
this Agreement and any termination of AFS's rights to act as Servicer hereunder
or under any other Transaction Document.
SECTION 18.6 Captions and Cross References. The various captions
-----------------------------
(including, without limitation, the table of contents) in this Agreement are
provided solely for convenience of reference and shall not affect the meaning or
interpretation of any provision of this Agreement. Unless otherwise indicated,
references in this Agreement to any Section, Schedule or Exhibit are to such
Section of or Schedule or Exhibit to this Agreement, as the case may be, and
references in any Section, subsection, or clause to any subsection, clause or
subclause are to such subsection, clause or subclause of such Section,
subsection or clause.
SECTION 18.7 Severability. Any provision of this Agreement which is
------------
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions of this Agreement or affecting the
validity or enforceability of such provision in any other jurisdiction.
Page 112
SECTION 18.8 GOVERNING LAW. THIS AGREEMENT AND THE NOTE SHALL BE A CONTRACT
-------------
MADE UNDER AND GOVERNED BY THE INTERNAL LAW OF THE STATE OF NEW YORK WITHOUT
REGARD TO ANY OTHERWISE APPLICABLE CONFLICT OF LAW PRINCIPLES (OTHER THAN
SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW)
SECTION 18.9 Counterparts. This Agreement may be executed by the parties
hereto in several counterparts, each of which shall be deemed to be an original
but all of which shall constitute together but one and the same agreement.
SECTION 18.10 WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO AND EACH
--------------------
INVESTOR BY ITS ACCEPTANCE OF ANY INTEREST IN ANY NOTE OR ADVANCE OR IN A
LENDER'S OBLIGATION TO MAKE ADVANCES HEREUNDER HEREBY KNOWINGLY, VOLUNTARILY AND
INTENTIONALLY WAIVES ANY RIGHTS IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY
LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS
AGREEMENT OR ANY OTHER TRANSACTION DOCUMENT, OR ANY COURSE OF CONDUCT, COURSE OF
DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF THE BORROWER, AFS,
AFC, ACC, THE SERVICER, THE AGENT, THE BACKUP SERVICER, THE COLLATERAL AGENT,
THE INVESTORS OR ANY OTHER AFFECTED PERSON. THE BORROWER ACKNOWLEDGES AND AGREES
THAT IT HAS RECEIVED FULL AND SUFFICIENT CONSIDERATION FOR THIS PROVISION (AND
EACH OTHER PROVISION OF EACH OTHER TRANSACTION DOCUMENT TO WHICH IT IS A PARTY)
AND THAT THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE AGENT AND THE LENDERS
ENTERING INTO THIS AGREEMENT AND EACH SUCH OTHER TRANSACTION DOCUMENT.
SECTION 18.11 Conflict Waiver. CSFB acts as Agent hereunder, as
---------------
administrative agent for one or more Noncommitted Lenders, and as provider and
as agent for other providers of backup facilities for one or more Noncommitted
Lenders, and may provide other services or facilities from time to time (the
"CSFB Roles"). Each of the parties hereto hereby acknowledges and consents to
----------
any and all CSFB Roles, waives any objections it may have to any actual or
potential conflict of interest caused by CSFB's acting or maintaining any of the
CSFB Roles, and agrees that in connection with any CSFB Role, CSFB may take, or
refrain from taking, any action consistent with its obligations under the
Transaction Documents.
SECTION 18.12 No Proceedings.
--------------
(a) Each of the Borrower, AFS, AFC, ACC, the Servicer, the Backup Servicer,
the Collateral Agent, and each Investor hereby agrees that it will not institute
against any
Page 113
Noncommitted Lender, or join any other Person in instituting against any
Noncommitted Lender, any insolvency proceeding (namely, any proceeding of the
type referred to in the definition of Event of Bankruptcy) so long as any
commercial paper or other senior indebtedness issued by such Noncommitted Lender
shall be outstanding or there shall not have elapsed one year plus one day since
the last day on which any such commercial paper or other senior indebtedness
shall be outstanding. The foregoing shall not limit such Person's right to file
any claim in or otherwise take any action with respect to any insolvency
proceeding that was instituted by any Person other than such Person.
(b) Each of CSFB, AFS, AFC, ACC, the Servicer, the Backup Servicer, the
Collateral Agent, each Investor and the Agent hereby agrees that it will not
institute against the Borrower, or join any other Person in instituting against
the Borrower, any insolvency proceeding (namely, any proceeding of the type
referred to in the definition of Event of Bankruptcy) so long as any Advances or
other amounts due from the Borrower hereunder shall be outstanding or there
shall not have elapsed one year plus one day since the last day on which any
such Advances or other amounts shall be outstanding. The foregoing shall not
limit such Person's right to file any claim in or otherwise take any action with
respect to any insolvency proceeding that was instituted by any Person other
than such Person.
SECTION 18.13 Limited Recourse to the Lenders. No recourse under any
-------------------------------
obligation, covenant or agreement of a Lender contained in this Agreement shall
be had against any incorporator, stockholder, officer, director, member,
manager, employee or agent of any Lender or any of its Affiliates (solely by
virtue of such capacity) by the enforcement of any assessment or by any legal or
equitable proceeding, by virtue of any statute or otherwise; it being expressly
agreed and understood that this Agreement is solely a corporate obligation of
each Lender, and that no personal liability whatever shall attach to or be
incurred by any incorporator, stockholder, officer, director, member, manager,
employee or agent of any Lender or any of their Affiliates (solely by virtue of
such capacity) or any of them under or by reason of any of the obligations,
covenants or agreements of a Lender contained in this Agreement, or implied
therefrom, and that any and all personal liability for breaches by a Lender of
any of such obligations, covenants or agreements, either at common law or at
equity, or by statute, rule or regulation, of every such incorporator,
stockholder, officer, director, member, manager, employee or agent is hereby
expressly waived as a condition of and in consideration for the execution of
this Agreement; provided that the foregoing shall not relieve any such Person
--------
from any liability it might otherwise have as a result of their willful
misconduct, gross negligence or of fraudulent actions taken or fraudulent
omissions made by them.
SECTION 18.14 Collateral Agent. Each Lender and each Investor by its
----------------
acceptance of any interest in any Note or Advance or in a Lender's obligation to
make Advances hereunder and the Agent designate and appoint Bank One, N.A. to
act as Collateral Agent hereunder and under the Security Agreement. Bank One,
N.A., by its execution hereof, accepts and agrees to such designation and
appointment and agrees
Page 114
to perform its obligations hereunder and under the Security Agreement in
accordance with the terms thereof and for the benefit of the Agent, the Lenders
and other Secured Parties. In furtherance of the foregoing, each Lender
authorizes the Agent to enter into the Security Agreement and to appoint the
Collateral Agent to act on behalf of, and as agent for, such Lender and the
Agent hereunder and under the Security Agreement and agrees to be bound by
Section 9 of such agreement.
SECTION 18.15 Custodian. AFS accepts and agrees to its designation and
---------
appointment as Custodian under the Custodian Agreement and agrees to perform its
obligations under such agreement in accordance with the terms thereof and for
the benefit of the Borrower and the Secured Parties.
SECTION 18.16 ENTIRE AGREEMENT. THIS AGREEMENT AND THE OTHER TRANSACTION
----------------
DOCUMENTS EXECUTED AND DELIVERED HEREWITH REPRESENT THE FINAL AGREEMENT BETWEEN
THE PARTIES HERETO AND THERETO AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO
UNWRITTEN ORAL AGREEMENTS AMONG THE PARTIES.
SECTION 18.17 Limitation of Liability of Trust Trustee. It is expressly
----------------------------------------
understood and agreed by the parties hereto that (a) this Agreement is executed
and delivered by Bankers Trust (Delaware), not individually or personally but
solely as Trust Trustee of the Borrower, in the exercise of the powers and
authority conferred and vested in it, (b) each of the representations,
undertakings and agreements herein made on the part of the Borrower is made and
intended not as personal representations, undertakings and agreements by Bankers
Trust (Delaware) but is made and intended for the purpose for binding only the
Borrower, (c) nothing herein contained shall be construed as creating any
liability on Bankers Trust (Delaware), individually or personally, to perform
any covenant either expressed or implied contained herein, all such liability,
if any, being expressly waived by the parties hereto and by any Person claiming
by, through or under the parties hereto and (d) under no circumstances shall
Bankers Trust (Delaware) be personally liable for the payment of any
indebtedness or expenses of the Borrower or be liable for the breach or failure
of any obligation, representation, warranty or covenant made or undertaken by
the Borrower under this Agreement or any other related documents.
[signature pages begin on next page]
Page 115
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
by their respective officers thereunto duly authorized as of the day and year
first above written.
AMERICREDIT WAREHOUSE TRUST
By: Bankers Trust (Delaware), not in its
individual capacity but solely as Trustee
By: /s/
-----------------------------------------
Name:
Title:
AMERICREDIT FINANCIAL SERVICES, INC.,
individually and as Servicer and Custodian
By: /s/
-----------------------------------------
Name:
Title:
200 Bailey Avenue
Fort Worth, Texas 76107
Attention: Treasurer
Facsimile No.: (817) 882-7101
AMERICREDIT FUNDING CORP.
By: /s/
-----------------------------------------
Name:
Title:
200 Bailey Avenue
Fort Worth, Texas 76107
Attention: President
Facsimile No.: (817) 882-7101
AMERICREDIT CORPORATION OF CALIFORNIA
Page 116
By: /s/
---------------------------------------
Name:
Title:
200 Bailey Avenue
Fort Worth, Texas 76107
Attention: President
Facsimile No.: (817) 882-7101
CREDIT SUISSE FIRST BOSTON, NEW
YORK BRANCH, as Agent
By: /s/
---------------------------------------
Name:
Title:
By: /s/
---------------------------------------
Name:
Title:
Eleven Madison Avenue
New York, New York 10010
Attention: Asset Finance Department
Facsimile No.: (212) 325-6677
BANK ONE, N.A., as Backup Servicer and Collateral
Agent
By: /s/
---------------------------------------
Name: John Rothrock
Title: Account Executive
100 East Broad Street - OH0181
Columbus, Ohio 43215
Attention: John Rothrock
Facsimile No.: (614) 248-5195
Receivables Financing Agreement - AmeriCredit Warehouse Trust, AmeriCredit Financial Services Inc., AmeriCredit Funding Corp., AmeriCredit Corp. of California, Credit Suisse First Boston and Bank One NA
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