\n SECTION 7.02…………………………………………… Notices, Etc 30
\n SECTION 7.03…………………………………….. No Waiver; Remedies 31
\n SECTION 7.04………………………. Costs, Expenses and Indemnification 31
\n SECTION 7.05……………………………… Binding Effect; Termination 32
\n SECTION 7.06………………………………….. Successors and Assigns 32
\n SECTION 7.07…………………………………………. No Proceedings 33
\n SECTION 7.08………………………. Submission to Jurisdiction; Waivers 33
\n SECTION 7.09…………………………………… WAIVERS OF JURY TRIAL 34
\n SECTION 7.10………………………………………….. GOVERNING LAW 34
\n SECTION 7.11……………………………….. Execution in Counterparts 34
\n SECTION 7.12………………………………………………. Headings 34
\n SECTION 7.13…………………………………………… Severability 34
\n SECTION 7.14……………………………………………. Integration 34
\n SECTION 7.15……………………………………….. Right of Set-Off 34
\n SECTION 7.16…………………………………. Limitation of Liability 35
\n SECTION 7.17………………………. No Recourse Against Certain Persons 35
\n SECTION 7.18…………………………. Treatment of Certain Information 36
\n SECTION 7.19……………………………………….. Certain Payments 36
\n SECTION 7.20……………………………… Joint and Several Liability 36
\n<\/c><\/s><\/caption>\n<\/table>\n -ii-<\/p>\n
LIST OF EXHIBITS<\/p>\n
Exhibit A Form of Irrevocable Letter of Credit
\n Exhibit B List of Series Transaction Documents for the FSA Series
\n Exhibit C Collateral and Reinsurance<\/p>\n
LIST OF APPENDICES<\/p>\n
Appendix A Certain Definitions<\/p>\n
LETTER OF CREDIT REIMBURSEMENT AGREEMENT, dated as of June 7, 2002, by
\nand among AMERICREDIT CORP., a Texas corporation (“ACC”), AMERICREDIT FINANCIAL
\nSERVICES INC., a Delaware corporation (“ACFS”; together with ACC, each a
\n“Borrower” and collectively, the “Borrowers”), and DEUTSCHE BANK AG, a German
\nbanking corporation acting through its New York Branch, as issuer (together with
\nits successors in such capacity, the “Issuer”).<\/p>\n
RECITALS<\/p>\n
1. AFS Funding Corp. (“AFS Funding”) has sold pools of receivables to
\nthe Underlying Trusts (as defined herein), which have issued two series of
\nasset-backed notes or certificates designated Series 2001-B and Series 2001-D
\n(each a “Designated Series”) which will be repaid by the proceeds of, or
\nrepresent an interest in, as the case may be, such pools of receivables.<\/p>\n
2. FSA (as defined herein) has issued insurance policies with respect
\nto payments due under each Designated Series and has also issued, and may from
\ntime to time issue, insurance policies with respect to other series in effect on
\nthe date hereof and as may hereafter be in effect that are supported by the
\nSpread Account Agreement (as defined herein) (all such series, including the
\nDesignated Series, “FSA Series”).<\/p>\n
3. The Borrowers have requested that the Issuer issue letters of credit
\nfor the joint and several account of the Borrowers in an initial aggregate
\nstated amount of $130,029,229 to provide credit support to FSA under its
\ninsurance policies for such FSA Series.<\/p>\n
4. Upon the terms and conditions contained in this Agreement and the
\nother Transaction Documents, the Issuer is willing to provide such letters of
\ncredit for the account of the Borrowers.<\/p>\n
AGREEMENTS<\/p>\n
In consideration of the premises and of the agreements herein
\ncontained, and for other good and valuable consideration, the receipt and
\nadequacy of which are hereby acknowledged, the Borrowers and the Issuer hereby
\nagree as follows:<\/p>\n
ARTICLE I
\n DEFINITIONS AND ACCOUNTING TERMS<\/p>\n
SECTION 1.01 Certain Defined Terms. Certain capitalized terms used in
\nthis Agreement and not otherwise defined herein shall have the respective
\nmeanings set forth in Appendix A hereto.<\/p>\n
SECTION 1.02 Computation of Time Periods. In this Agreement in the
\ncomputation of periods of time from a specified date to a later specified date,
\nthe word “from” means “from and including” and the words “to” and “until” each
\nmeans “to but excluding.” Periods of days referred to in this Agreement shall be
\ncounted in calendar days unless Business Days are expressly prescribed and
\nreferences in this Agreement to months and years shall be to calendar months and
\ncalendar years unless otherwise specified.<\/p>\n
SECTION 1.03 Accounting Terms. All accounting terms not specifically
\ndefined otherwise herein shall have the meaning customarily given in accordance
\nwith GAAP, and all financial computations hereunder shall be computed, unless
\nspecifically provided otherwise herein, in accordance with GAAP.<\/p>\n
SECTION 1.04 Other Terms. Any references herein to Exhibits, Schedules,
\nAppendices, Sections or Articles are references to Exhibits, Schedules,
\nAppendices, Sections or Articles of this Agreement, unless otherwise specified.
\nThe words “including” and “include” are deemed to be followed by the words
\n“without limitation.”<\/p>\n
ARTICLE II
\n ISSUANCE OF LETTERS OF CREDIT<\/p>\n
SECTION 2.01 The Letters of Credit.<\/p>\n
(a) On and subject to the terms and conditions hereinafter set forth,
\nthe Issuer shall issue the following letters of credit (collectively, the
\n“Letters of Credit”) on the date hereof (i) Letter of Credit No. S-14699 with a
\nMaximum Stated Amount initially equal to $52,581,286 for a term expiring on
\nJanuary 5, 2004 (the “2OO1-B Scheduled Expiry Date”) and (ii) Letter of
\nCredit No. S-14700 with a Maximum Stated Amount initially equal to $77,447,943
\nfor a term expiring on April 5, 2004 (the “2001-D Scheduled Expiry Date”;
\ntogether with the 2001-B Scheduled Expiry Date, each a “Scheduled Expire
\nDate”). Each Letter of Credit shall be substantially in the form of Exhibit A.<\/p>\n
(b) The Available Stated Amount and Maximum Stated Amount for
\nany Letter of Credit shall be changed as follows:<\/p>\n
(i) The Available Stated Amount for a Letter of Credit shall be
\n reduced dollar-for-dollar by the amount of any drawing thereunder
\n (including any drawing honored on a Distribution Date) on the date such
\n drawing is honored by the Issuer.<\/p>\n
(ii) The Maximum Stated Amount for a Letter of Credit shall be
\n reduced dollar-for-dollar on each Distribution Date with respect to the
\n related Notes of a Designated Series, so long as no Insurance Agreement
\n Event of Default exists with respect to any FSA Series, to the extent,
\n if any, that the Available Enhancement Amount on the preceding
\n Distribution Date exceeds the Maximum Enhancement Amount, after giving
\n effect to all deposits to and withdrawals from the Spread Account for
\n such related Notes and payments of principal of such related Notes in
\n respect of such Distribution Date; provided that reduction of the
\n Maximum Stated Amount shall resume if and when no Insurance Agreement
\n Event of Default shall be continuing (due to waiver or otherwise). The
\n Borrowers shall deliver to the Issuer (with a copy to FSA) a
\n certificate in the form of Annex C to the applicable Letter of Credit
\n on each Distribution Date in connection with each such reduction.<\/p>\n
(iii) The Available Stated Amount for a Letter of Credit shall be
\n reinstated dollar-for-dollar to the extent of reimbursement of drawings
\n under such Letter of Credit, but not in excess of the Maximum Stated
\n Amount. Any reduction of the Available Stated Amount shall be final and
\n shall not be subject to reinstatement except as provided in the<\/p>\n
2<\/p>\n
previous sentence and except in the case of manifest error, and the
\n amount of reinstatement shall be the amount of such reimbursement, net
\n of any interest. For purposes of such reinstatement, reimbursement of
\n drawings under a Letter of Credit shall include only amounts delivered
\n to the Issuer by FSA pursuant to Section 2.03(b) or (c) and the amount
\n of interest deducted shall include only interest actually paid to FSA
\n as provided in the related Insurance and Indemnity Agreement in respect
\n of such Policy Payments. FSA shall deliver to the Issuer a certificate
\n in the form of Annex D to the applicable Letter of Credit in connection
\n with each such reinstatement, and any such reinstatement shall become
\n effective immediately upon receipt by the Issuer of such certificate;
\n provided that the Issuer may reverse any such reinstatement in the case
\n of manifest error so long as the Issuer sends written notice of such
\n reversal to FSA within 10 Business Days of the Issuer’s receipt of such
\n certificate.<\/p>\n
If an Insurance Agreement Event of Default or Trigger Event shall
\n have occurred and be continuing, FSA may, by delivering a certificate
\n in the form of Annex E to the applicable Letter of Credit, direct the
\n Issuer to reduce the Maximum Stated Amount under each Letter of Credit
\n and cancel any outstanding Spread Account Replacement Reinsurance (but
\n only on a pro rata basis as between all outstanding Letters of Credit
\n and all outstanding Spread Account Replacement Reinsurance) to the
\n extent FSA determines in good faith that FSA’s remaining exposure under
\n the Policies is investment grade based upon rating agency levels of
\n coverage for expected losses without the benefit of the reduced amount
\n of the Letters of Credit and Spread Account Replacement Reinsurance.<\/p>\n
SECTION 2.02 Disbursements<\/p>\n
(a) The Borrowers agree with respect to each Letter of Credit that
\nif FSA will make a Policy Payment under the related Policy on any Insured
\nDistribution Date then, at anytime on or after the Business Day prior to the
\nDistribution Date preceding such Insured Distribution Date, FSA shall have the
\nright to draw under the applicable Letter of Credit (determined in accordance
\nwith Section 2.02(c)) in an amount not exceeding the lesser of the amount of
\nsuch Policy Payment and the Available Stated Amount of such Letter of Credit,
\neither for the purpose of making such Policy Payment or as reimbursement for
\nmaking such Policy Payment.<\/p>\n
(b) FSA agrees that it shall first apply amounts (including with
\nrespect to Subsequent Reinsurance, amounts deemed available in accordance with
\nthe definition thereof), if any, from the following sources to make such Policy
\nPayment:<\/p>\n
(i) to the extent available pursuant to the Spread Account
\n Agreement, the Spread Accounts for the related Notes and the
\n asset-backed notes and certificates issued in connection with all other
\n FSA Series; or<\/p>\n
(ii) Subsequent Reinsurance.<\/p>\n
(c) With respect to any Letter of Credit, all reinsurance of the
\nPolicies shall be Excess of FSA’s Loss Protection provided by such Letter
\nof Credit and shall be for the benefit solely of FSA, except that the Loss
\nProtection provided by such Letter of Credit shall be Excess of any reinsurance
\nthat constitutes Subsequent Reinsurance (including, with respect to Subsequent<\/p>\n
3<\/p>\n
Reinsurance, amounts deemed available in accordance with the definition
\nthereof). Except as provided in the preceding sentence or as expressly otherwise
\nprovided with respect to any FSA Series (with the written agreement of the
\nparties to the applicable Series Transaction Documents), any Letter of Credit
\nshall be Excess of all other Loss Protection for any FSA Series, including
\nsubordinate trenches of securities not insured by FSA. FSA covenants and agrees
\nthat, before entering into any agreement for Spread Account Replacement
\nReinsurance with respect to any Policy, FSA will provide written notice to the
\nIssuer as to whether such Spread Account Replacement Reinsurance is or is not
\nQualified Subsequent Reinsurance. FSA and each Borrower agree that (i) the
\nIssuer shall be deemed to have provided Loss Protection with respect to an FSA
\nSeries as of the effective date of such Series and (ii) any Loss Protection
\nprovided subsequent to such effective date shall constitute Subsequent
\nReinsurance.<\/p>\n
(d) Upon presentation by FSA to the Issuer of a certificate in the form
\nof Annex A to the applicable Letter of Credit, and subject to the terms and
\nconditions set forth herein and in the applicable Letter of Credit, the Issuer
\nshall make a disbursement (such disbursement, a “LOC Disbursement”) at the time,
\nin the manner and to the account specified in the applicable Letter of Credit.<\/p>\n
(e) Upon presentation by FSA to the Issuer of a certificate in the
\nform of Annex B to the applicable Letter of Credit following the occurrence of
\nany of the events described in clause (f) below, and subject to the terms and
\nconditions set forth herein and in the applicable Letter of Credit, the Issuer
\nshall make a disbursement (such disbursement, a “LOC Termination Disbursement”)
\nat the time, in the manner and to the account specified in the applicable Letter
\nof Credit.<\/p>\n
(f) If on any day (i) the short-term debt or deposit rating of the
\nIssuer shall be withdrawn by S&P or Moody’s or downgraded below A-l by S&P or
\nbelow P-l by Moody’s or (ii) the long-term debt rating of the Issuer shall be
\ndowngraded below A- by S&P or below A3 by Moody’s or (iii) the Issuer has
\nnotified FSA and the Borrowers (and has not retracted such notification) that
\nits compliance with any of its obligations hereunder would be unlawful or (iv)
\nsuch day is the second Business Day prior to the Scheduled Expiry Date for any
\nLetter of Credit, and<\/p>\n
(A) there shall not have been appointed a successor institution to
\n act as Issuer which (x)(1) has a short-term debt or deposit rating of at
\n least A-1 by S&P and P-1 by Moody’s, (2) has a long-term debt or deposit
\n rating of at least A- by S&P and A3 by Moody’s and (3) has been consented to
\n by FSA (such consent not to be unreasonably withheld or delayed) or (y) is
\n otherwise approved in writing by FSA or, in the alternative,<\/p>\n
(B) the Letter of Credit with respect to the Designated Series
\n shall not have otherwise been replaced or substituted with (1) the funding
\n of the Spread Account with cash, (2) other cash collateral accounts,
\n overcollateralization or subordinated securities or (3) a surety bond or
\n other similar arrangement, in each case in an amount equal to the aggregate
\n Available Stated Amount for all Letters of Credit (or the applicable Letter
\n of Credit in the case of the event specified in clause (f)(iv) above);
\n provided, however, that any form of substitute credit enhancement referred
\n to in the foregoing clauses (2) and (3) shall be approved by FSA and the
\n Rating Agencies;<\/p>\n
4<\/p>\n
then<\/p>\n
(x) in the case of the occurrence of the event specified in
\n clause (f)(iv) above, (1) FSA may request an LOC Termination
\n Disbursement for the applicable Letter of Credit in an amount equal to
\n the Available Stated Amount of the applicable Letter of Credit and
\n cause the amount of such LOC Termination Disbursement to be deposited
\n in a separate segregated collateral account for the applicable Letter
\n of Credit maintained with a Person acting as “Collateral Agent” under
\n the Spread Account Agreement, or such other Person otherwise approved
\n in writing by the Issuer and FSA, and invested in Cash Equivalents
\n (with all interest and\/or gains with respect to such Cash Equivalents
\n being for the account of the Issuer and payable to the Issuer on each
\n Distribution Date) and shall use such funds on or prior to the
\n applicable Standard Termination Date in the same manner as drawings
\n under the applicable Letter of Credit hereunder in accordance with
\n Sections 2.02(a) and (b) and (2) the Issuer and\/or the Borrowers will
\n cause to be executed and delivered to FSA such documentation as FSA
\n may reasonably request to grant FSA a security interest in such
\n account; provided that, concurrently with the making of an SPE Loan
\n (as defined in clause (y) below), all of such funds shall be delivered
\n to the Issuer; or<\/p>\n
(y) in the case of the occurrence of an event specified in
\n clause (f)(i), (f)(ii) or (f)(iii) above, regardless of whether an
\n event specified in clause (f)(iv) has occurred and the deposit
\n referred to in clause (x) above has been made, within 30 days after
\n the occurrence of such event, at FSA’s written request, the Issuer
\n shall make a loan (each, an “SPE Loan”) in an amount equal to the
\n aggregate Available Stated Amount of all Letters of Credit to a
\n bankruptcy-remote special purpose Person (an “SPE”) in which one or
\n both of the Borrowers shall hold the equity interest, and the
\n Borrowers and the Issuer shall effect such documentation as shall be
\n appropriate to effect such SPE Loan which is reasonably acceptable to
\n the Issuer and FSA (which documentation shall provide, among other
\n things, that the proceeds of such SPE Loan be deposited in a special
\n segregated collateral account for each Letter of Credit and used on or
\n prior to the applicable Standard Termination Date in the same manner
\n as drawings under the Letters of Credit in accordance with Sections
\n 2.02(a) and (b) and reimbursed in the manner provided in Section 2.03
\n (in the case of an SPE Loan, as though such SPE Loan were a Letter of
\n Credit made on the date of issuance of having the Standard Termination
\n Date of and having an “Available Stated Amount” and a “Maximum Stated
\n Amount” equal to the Available Stated Amount and the Maximum Stated
\n Amount, respectively, of the corresponding Letter of Credit)). In the
\n event that the Issuer or the Borrowers shall breach their respective
\n obligations under this clause (y) such that the SPE Loan is not made,
\n FSA (without prejudice to other remedies it may have) may at its
\n option draw upon the Letters of Credit in the manner set forth in
\n clause (x) above, in which case such drawing will be applied as set
\n forth in such clause (x).<\/p>\n
Upon the making of an LOC Termination Disbursement or an SPE Loan, the Available
\nStated Amount and the Maximum Stated Amount of the applicable Letter of Credit
\nshall automatically be<\/p>\n
5<\/p>\n
reduced to zero and such Letter of Credit shall terminate and be returned to the
\nIssuer, but all reimbursement, fee and other provisions regarding the operation
\nof each Letter of Credit thereafter shall apply to the corresponding cash
\ncollateral.<\/p>\n
(g) A Letter of Credit may be not drawn upon (whether pursuant to
\nSection 2.02(d) or (e)) after the earliest to occur of (i) the date on which
\nFSA’s liability under the related Policy has expired, (ii) the date on which the
\nAvailable Stated Amount and Maximum Stated Amount with respect to such Letter of
\nCredit are reduced to zero (other than pursuant to Section 2.02(f) above) and
\nreinstatement thereof is no longer available under Section 2.Ol(b)(iii) (the
\nearlier of the dates specified in clause (i) and clause (ii) being referred to
\nas the “Standard Termination Date” for such Letter of Credit) and (iii) the
\nScheduled Expiry Date for such Letter of Credit (such earliest date, the “Expiry
\nDate” for such Letter of Credit).<\/p>\n
SECTION 2.03 Reimbursement.<\/p>\n
(a) Except as set forth in Section 2.03(b) below, the amount of all
\ndrawings under a Letter of Credit shall be payable by the Borrowers in full on
\nthe Business Day immediately following the date such drawing is honored.<\/p>\n
(b) (i) FSA shall repay any amount drawn on a Letter of Credit (other
\nthan any LOC Termination Disbursement), if such amount is not applied to make
\nthe Policy Payment with respect to which it was drawn or to reimburse FSA with
\nrespect thereto, within five Business Days after the date such Policy Payment
\nwas due, together with reinvestment earnings, if any, thereon.<\/p>\n
(ii) On each Distribution Date with respect to the related Notes
\n of a Designated Series, so long as no Insurance Agreement Event of Default
\n exists with respect to any FSA Series, FSA shall cause to be released from
\n the collateral account referred to in Section 2.02(f) for such Letter of
\n Credit and delivered to the Issuer (or the SPE, if such cash collateral is
\n from the proceeds of an SPE Loan) an amount equal to the excess, if any, of
\n the Available Enhancement Amount on the preceding Distribution Date over the
\n Maximum Enhancement Amount, after giving effect to all deposits to and
\n withdrawals from the Spread Account for the related Notes and payments of
\n principal of the related Notes in respect of such Distribution Date;
\n provided that the release of cash collateral pursuant to this clause (ii)
\n shall resume if and when no Insurance Agreement Event of Default shall be
\n continuing (due to waiver or otherwise).<\/p>\n
(iii) On the Standard Termination Date for a Letter of Credit, FSA
\n shall cause to be released from the collateral account referred to in
\n Section 2.02(Q for such Letter of Credit and delivered to the Issuer (or the
\n SPE, if such cash collateral is from the proceeds of an SPE Loan) any
\n remaining balance therein so long as no Insurance Agreement Event of Default
\n or Trigger Event exists with respect to any of the Notes in any FSA Series.<\/p>\n
(iv) If an Insurance Agreement Event of Default or Trigger Event
\n exists with respect to any of the Notes in any FSA Series and the Standard
\n Termination Date has not yet occurred, FSA shall cause to be released from
\n the collateral account referred to in Section 2.02(f) for such Letter of
\n Credit and delivered to the Issuer (or the SPE, if such cash<\/p>\n
6<\/p>\n
collateral is from the proceeds of an SPE Loan) any remaining balance
\n therein on the later of (A) the applicable Standard Termination Date and
\n (B) the earlier of (1) the date on which no Insurance Agreement Event
\n of Default or Trigger Event shall be continuing (due to waiver, cure or
\n otherwise) with respect to any of the Notes or (2) the expiration of all
\n of the Policies outstanding at the date of the first to occur of such
\n Insurance Agreement Event of Default or Trigger Event; provided that (a)
\n the aggregate amount of the cash collateral balances and the Available
\n Stated Amount for all Letters of Credit under this Agreement thereafter
\n shall not exceed such aggregate amount at the date of such Insurance
\n Agreement Event of Default or Trigger Event except for increases thereafter
\n due to reinstatements of the Available Stated Amounts under Section
\n 2.0l(b)(iii) and (b) at each subsequent Standard Termination Date with
\n respect to any Letter of Credit (or SPE Loan, as applicable), the amount of
\n the cash collateral balances and Maximum Stated Amount for each Letter of
\n Credit (or SPE Loan as applicable) shall be reduced in order, starting with
\n the Letter of Credit (or SPE Loan, as applicable) having the earliest
\n Effective Date and reducing the cash collateral balance or Maximum Stated
\n Amount as applicable for such Letter of Credit (or SPE Loan, as applicable)
\n to zero before reducing the cash collateral balance or Maximum Stated
\n Amount as applicable of the Letter of Credit (or SPE Loan as applicable)
\n having the next earliest Effective Date, until the aggregate amount of the
\n cash collateral balances and Maximum Stated Amount of all Letters of Credit
\n (and SPE Loans) under this Agreement is equal to the sum of (I) the
\n aggregate par amount of Notes of any Designated Series outstanding at such
\n date and (II) the aggregate of the Spread Account Shortfalls and
\n warehousing shortfalls (if any) with respect to the Notes of other FSA
\n Series that were outstanding at the date of such Insurance Agreement Event
\n of Default or Trigger Event, if such sum is less than such aggregate amount
\n of the cash collateral balances and the Maximum Stated Amount of all
\n Letters of Credit (and SPE Loans) at such date.<\/p>\n
(c) FSA in respect of its Policy Payments, all of FSA’s quota share
\nreinsurers of the Policies, all of FSA’s reinsurers participating in any loss
\nlayer with respect to the Policies and all of FSA’s reinsurers providing Spread
\nAccount Replacement Reinsurance in effect on the effective date of the
\napplicable Designated Series shall first be reimbursed in full from recoveries
\nfor all Policy Payments, in the case of FSA, and all reinsurance policy
\npayments, in the case of such reinsurers, before any reimbursement of drawings
\nunder any Letter of Credit pursuant to this Section 2.03(c) to the extent that
\nsuch Policy Payments or reinsurance policy payments relate to coverage that is
\nExcess of the Loss Protection provided by such Letter of Credit. Thereafter, FSA
\nshall deliver to the Issuer all amounts that it receives in respect of policy
\npayment reimbursements pursuant to the Series Transaction Documents relating to
\nan FSA Series in order to reimburse drawings under the Letters of Credit and
\nother amounts owing to the Issuer hereunder, including all recoveries received
\nby FSA for Policy Payments for which drawings were made under a Letter of
\nCredit. If the Repayment Amount in respect of such Letter of Credit has been
\npaid in full, any such recoveries shall be applied to the remaining Letters of
\nCredit. For purposes of the foregoing, reimbursement by FSA of drawings under
\nany Letter of Credit shall include interest only to the extent provided in the
\nrelated Insurance and Indemnity Agreement in respect of such Policy Payments for
\nwhich the withdrawals were made and only to the extent recoveries are sufficient
\ntherefor. FSA shall retain full discretion in exercising remedies in respect of
\nthe Policies, including the right to terminate an FSA Series Servicer and to
\ndesignate a replacement FSA Series Servicer and the right to amend or waive any
\nprovision of any<\/p>\n
7<\/p>\n
Series Transaction Document relating to any FSA Series, to the extent FSA has
\nsuch rights under such Series Transaction Document; provided that FSA shall act
\nin good faith in doing so.<\/p>\n
(d) The Borrowers shall pay or cause to be paid the principal portion
\nof the Repayment Amount with respect to each Letter of Credit as follows: (i) on
\neach Distribution Date, the Borrowers will cause to be paid to the Issuer an
\namount equal to the Nonallocated Amount Available on such Distribution Date and
\n(ii) on the Scheduled Expiry Date for any Letter of Credit, the Borrowers shall
\npay all remaining amounts with respect to unreimbursed drawings under such
\nLetter of credit (up to a pro rata portion of the Recourse Limit with respect to
\nsuch Letter of Credit). In addition, the Borrowers shall pay to the Issuer when
\ndue all interest, costs and expenses incurred by the Issuer or any Indemnified
\nParty hereunder.<\/p>\n
SECTION 2.04 Interest. Any drawing under a Letter of Credit shall
\naccrue interest from the date of such drawing to the date of payment thereof in
\nfull (after as well as before judgment) at the rates specified in the Fee
\nLetter. Such interest shall be payable by the Borrowers on the dates specified
\nin the Fee Letter.<\/p>\n
SECTION 2.05 Fees. The Borrowers shall pay to the Issuer the fees in
\nthe amounts, at the times and in the manner described in the Fee Letter.<\/p>\n
SECTION 2.06 Increased Costs; Increased Capital.<\/p>\n
(a) In the event that the Issuer shall have reasonably determined that
\nany Regulatory Change shall:<\/p>\n
(i) subject the Issuer to any Taxes of any kind whatsoever, other
\n than Excluded Taxes, with respect to this Agreement or the letters of
\n Credit, or change the basis of taxation of payments in respect thereof; or<\/p>\n
(ii) impose, modify or hold applicable any reserve, special
\n deposit, compulsory loan, assessment, increased cost or similar requirement
\n against assets held by, deposits or other liabilities in or for the account
\n of, advances, loans or other extensions of credit by, or any other
\n acquisition of funds by, the Issuer or any office of the Issuer in respect
\n of the Letters of Credit,<\/p>\n
and the result of any of the foregoing is to increase the cost to the Issuer, by
\nan amount which the Issuer deems to be material, of maintaining the Letters of
\nCredit or to reduce any amount receivable in respect thereof, then, in any such
\ncase, after submission by the Issuer to the Borrowers of written request
\ntherefore, the Borrowers shall pay to the Issuer any additional amounts
\nnecessary to compensate the Issuer for such increased cost or reduced amount
\nreceivable.<\/p>\n
(b) In the event that the Issuer shall have determined that any
\nRegulatory Change regarding capital adequacy has the effect of reducing the rate
\nof return on the Issuer’s capital or on the capital of any Person directly or
\nindirectly owning or controlling the Issuer as a consequence of its obligations
\nhereunder or its maintenance of the Letters of Credit to a level below that
\nwhich the Issuer or such Person could have achieved but for such Regulatory
\nChange (taking into consideration the Issuer’s or such Person’s policies with
\nrespect to capital adequacy) by an amount deemed by the<\/p>\n
8<\/p>\n
Issuer or such Person to be material, then from time to time, after submission
\nby the Issuer to the Borrowers of written request therefor, the Borrowers shall
\npay to the Issuer such additional amount or amounts as will compensate the
\nIssuer or such Person, as the case may be, for such reduction.<\/p>\n
(c) The Issuer agrees that it shall use its reasonable efforts to
\nreduce or eliminate any claim for compensation pursuant to this Section 2.06.<\/p>\n
(d) The Issuer will furnish to the Borrowers (together with its request
\nfor compensation) a certificate prepared in good faith setting forth the basis
\nand the amount of each request by the Issuer for any such increased amounts
\nreferred to in this Section 2.06. Any such certificate shall be conclusive
\nabsent manifest error. Failure on the part of the Issuer to demand compensation
\nfor any amount pursuant to this Section 2.06 with respect to any period shall
\nnot constitute a waiver of the Issuer’s right to demand compensation with
\nrespect to such period. All such amounts shall be due and payable by the
\nBorrowers to the Issuer within five Business Days following receipt by the
\nBorrowers of such certificate (or, if earlier, on the Facility Maturity Date or
\nwhen earlier required to be paid as provided herein).<\/p>\n
SECTION 2.07 Taxes.<\/p>\n
(a) All payments made to the Issuer under this Agreement and the other
\nTransaction Documents shall, to the extent allowed by law, be made free and
\nclear of, and without deduction or withholding for or on account of, any present
\nor future income, stamp or other taxes, levies, imposts, duties, charges, fees,
\ndeductions or withholdings, now or hereafter imposed, levied, collected,
\nwithheld or assessed by any Governmental Authority (collectively, “Taxes”),
\nexcluding income taxes, franchise taxes imposed in lieu of income taxes or any
\nother taxes based on or measured by the overall net income of the Issuer by the
\njurisdiction in which the Issuer is incorporated or has its principal place of
\nbusiness (such excluded taxes being herein called “Excluded Taxes”). If any
\nTaxes, other than Excluded Taxes, are required to be withheld from any amounts
\npayable to the Issuer hereunder or under any other Transaction Document, then
\nafter submission by the Issuer to the Borrowers of a written request therefor,
\nthe amounts so payable to the Issuer shall be increased, and the Borrowers shall
\nbe liable to pay to the Issuer the amount of such increase, to the extent
\nnecessary to yield to the Issuer (after payment of all such Taxes) interest or
\nany such other amounts payable hereunder or thereunder at the rates or in the
\namounts specified herein or therein; provided, however that the amounts so
\npayable to the Issuer shall not be increased pursuant, to this Section 2.07(a)
\nto the extent such requirement to withhold results from the failure of such
\nPerson to comply with Section 2.07(c). Whenever any Taxes are payable on or with
\nrespect to amounts payable to the Issuer, as promptly as possible thereafter the
\nBorrowers shall send to the Issuer a certified copy of an original official
\nreceipt showing payment thereof. If the Borrowers fai1 to pay any Taxes when due
\nto the appropriate taxing authority or fails to remit to the Issuer (as
\napplicable), the required receipts or other required documentary evidence, the
\nBorrowers shall pay to the Issuer any incremental taxes, interest or penalties
\nthat may become payable by the Issuer as a result of any such failure.<\/p>\n
(b) The Issuer will furnish to the Borrowers a certificate prepared in
\ngood faith setting forth the basis and amount of each request by the Issuer for
\nsuch Taxes. Any such certificate of the Issuer shall be conclusive absent
\nmanifest error. Failure on the part of the Issuer to demand additional amounts
\npursuant to Section 2.07(a) with respect to any period shall not constitute a<\/p>\n
9<\/p>\n
waiver of the right of the Issuer to demand compensation with respect to such
\nperiod. All such amounts shall be due and payable by the Borrowers to the Issuer
\non the date five Business Days following receipt by the Borrowers of such
\ncertificate (or, if earlier, on the Facility Maturity Date or when earlier
\nrequired to be paid as provided herein).<\/p>\n
(c) The Issuer shall, to the extent that it may then do so under
\napplicable laws and regulations, deliver to the Borrowers (i) within 15 days
\nafter the date hereof, two (or such other number as may from time to time be
\nprescribed by applicable laws or regulations) duly completed copies of IRS Form
\nW-8ECI or Form W-8BEN (or any successor forms or other certificates or
\nstatements which may be required from time to time by the relevant United States
\ntaxing authorities or applicable laws or regulations), as appropriate, to permit
\nthe Borrowers to make payments hereunder for the account of the Issuer, without
\ndeduction or withholding of United States federal income or similar taxes and
\n(ii) upon the obsolescence of or after the occurrence of any event requiring a
\nchange in, any form or certificate previously delivered pursuant to this Section
\n2.07(c), copies (in such numbers as may be from time to time be prescribed by
\napplicable laws or regulations) of such additional, amended or successor forms,
\ncertificates or statements as may be required under applicable laws or
\nregulations to permit the Borrowers to make payments hereunder for the account
\nof the Issuer, without deduction or withholding of United States federal income
\nor similar taxes.<\/p>\n
(d) In addition, the Borrowers agree to pay any present or future stamp
\nor documentary taxes or any other excise or property taxes, charges or similar
\nlevies that arise from any payment made hereunder or from the execution,
\ndelivery or registration of, or otherwise with respect to, this Agreement or any
\nother Transaction Document.<\/p>\n
SECTION 2.08 Payments and Computations.<\/p>\n
(a) The Borrowers shall make each payment hereunder, not later than
\n1:30 p.m. (New York City time) on the day when due by wire transfer in Dollars
\nand in immediately available funds, without set-off for counterclaim, to the
\nIssuer at its account number 602-001-19 (ABA number 021-00l-022; Reference:
\nAmeriCredit LOC) maintained at Deutsche Bank Trust Company Americas, or such
\nother account as the Issuer shall designate in writing to the Borrowers.<\/p>\n
(b) Whenever any payment hereunder shall be stated to be due on a day
\nother than a Business Day, such payment shall be made on the next succeeding
\nBusiness Day, and such extension of time shall in such case be included in the
\ncomputation of payment of interest or any fee payable hereunder, as the case may
\nbe.<\/p>\n
(c) All computations of interest and fees shall be made by the Issuer
\non the basis of a year of 360 days, in each case for the actual number of days
\n(including the first day but excluding the last day) occurring in the period for
\nwhich such fee is payable.<\/p>\n
SECTION 2.09 Issuer’s Records, The Issuer’s records regarding the
\namount of each drawing under a Letter of Credit, each payment by the Borrowers
\nof principal and interest on the drawings under a Letter of Credit and other
\ninformation relating to the Letters of Credit shall be presumptively correct
\nabsent manifest error.<\/p>\n
10<\/p>\n
SECTION 2.10 No Liability of Issuer. Each Borrower acknowledges that
\nthe Issuer is not responsible for any risks of acts or omissions of FSA and any
\nother beneficiary or transferee of any Letter of Credit with respect to its use
\nof any Letter of Credit. In furtherance of, and in addition to, the foregoing,
\nneither the Issuer nor any of its employees, officers or directors shall be
\nliable or responsible for: (a) the use which may be made of any Letter of Credit
\nor any acts or omissions of FSA and any transferee in connection therewith; (b)
\nthe form, validity, sufficiency, accuracy, genuineness or legal effect of any
\nLetter of Credit or any document submitted by any party in connection with the
\napplication for and issuance of any Letter of Credit, even if it should in fact
\nprove to be in any or all respects invalid, insufficient, inaccurate, fraudulent
\nor forged; (c) the form, validity, sufficiency, accuracy, genuineness or legal
\neffect of any instrument transferring or assigning or purporting to transfer or
\nassign any Letter of Credit or the rights or benefits thereunder or the proceeds
\nthereof in whole or in part, which may prove to be invalid or ineffective for
\nany reason; (d) failure of the beneficiary to comply fully with conditions
\nrequired in order to demand payment under any Letter of Credit (other than the
\ncondition that it present a certificate in the form of Annex A to such Letter of
\nCredit complying with the terms and conditions of such Letter of Credit); (e)
\nerrors, omissions, interruptions or delays in transmissions or delivery of any
\nmessages, by mail, cable, telegraph, telex or otherwise; (f) any loss or delay
\nin the transmission or otherwise of any document or draft required in order to
\nmake a LOC Disbursement; (g) payment by the Issuer against presentation of
\ndocuments which do not comply with the terms of any Letter of Credit, including
\nfailure of any documents to bear any reference or adequate reference to such
\nLetter of Credit; or (h) any other circumstances whatsoever in making or failing
\nto make payment under any Letter of Credit; provided, however, that the Issuer
\nshall be liable to the Borrowers, to the extent of any direct, as opposed to
\nconsequential, damages suffered by the Borrowers which are determined in a final
\nand non-appealable decision of a court of competent jurisdiction to have been
\ncaused by the Issuer’s willful misconduct in determining whether documents
\npresented under a Letter of Credit comply with the terms of such Letter of
\nCredit or the Issuer’s willful failure to make lawful payment under a Letter of
\nCredit after the presentation to the Issuer by FSA of a certificate strictly
\ncomplying with the terms and conditions of such Letter of Credit. In furtherance
\nand not in limitation of the foregoing, the Issuer may accept documents that
\nappear on their face to be in order, without responsibility for further
\ninvestigation and shall not be liable or responsible for any other circumstances
\nso long as it shall have acted in good faith.<\/p>\n
ARTICLE III
\n CONDITIONS PRECEDENT<\/p>\n
SECTION 3.01 Conditions Precedent to the Effectiveness of this
\nAgreement. The following constitute conditions precedent to effectiveness of
\nthis Agreement and the obligation of the Issuer to issue any Letter of Credit
\nunder this Agreement (provided that nonsatisfaction of any of the following
\nconditions shall be deemed waived, to the extent not expressly waived by the
\nIssuer, upon delivery to FSA of the Letters of Credit):<\/p>\n
(a) Representations and Warranties. On the Effective Date and after
\ngiving effect to the issuance of the Letters of Credit on such date, (i) all
\nrepresentations and warranties of the Borrowers contained herein or in any
\nTransaction Document or otherwise made by any Borrower in writing pursuant to
\nany of the provisions hereof or thereof and (ii) all representations and
\nwarranties of AFS Funding and the Spread Account Depositor contained in any
\nSeries Transaction Document<\/p>\n
11<\/p>\n
relating to any FSA Series shall be true and correct in all material respects
\n(except to the extent such representations and warranties specifically relate to
\nan earlier date, then such representations and warranties are true and correct
\nin all material respects as of such earlier date).<\/p>\n
(b) No Defaults. On the Effective Date and after giving effect to the
\nissuance of the Letters of Credit on such date, no Event of Default shall have
\noccurred.<\/p>\n
(c) Other Transaction Documents. Each other Transaction Document not
\notherwise referred to in this Section 3.01 shall have been duly executed and
\ndelivered by the parties thereto.<\/p>\n
(d) Expenses. The Borrowers shall have paid all reasonable and
\nappropriately invoiced costs and expenses of the Issuer payable by the Borrowers
\nin connection with the transactions contemplated hereby.<\/p>\n
(e) Termination of Credit Agreement. The Issuer shall have received
\nevidence that each of (i) the Credit Agreement dated as of October 14, 1999
\namong AFS Funding, the Borrowers, AmeriCredit Management Company, various
\nfinancial institutions, Bankers Trust Company, as Lender Collateral Agent, and
\nCredit Suisse First Boston, New York Branch, as Administrative Agent, as
\namended, and (ii) the Replacement Cash Collateral Agreement dated as of October
\n14, 1999 among AFS Funding, FSA, Credit Suisse First Boston, New York Branch, as
\nAdministrative Agent, and Bank One, N.A., as Collateral Agent, as amended, shall
\nhave been terminated, and all amounts outstanding thereunder shall have been
\npaid in full.<\/p>\n
(f) Other Documents. The Issuer shall have received the following, each
\ndated as of the Effective Date or as otherwise permitted below:<\/p>\n
(i) A certificate of the Secretary of State of the applicable
\n jurisdiction of incorporation of each Borrower as to the legal existence
\n and good standing of such Borrower, together with a copy of such Borrower’s
\n certificate of incorporation, certified as a true and correct copy by such
\n Secretary of State, each dated on or within 20 Business Days prior to the
\n Effective Date;<\/p>\n
(ii) A certificate of an Authorized Officer of each Borrower,
\n certifying that (i) the copies of the unaudited (or audited, in the case of
\n ACC) balance sheet of such Borrower for the fiscal year ended June 30,
\n 2001, and the related statements of income, shareholders’ equity and cash
\n flows for such fiscal year attached to such certificate are complete, true
\n and correct and have been prepared in accordance with GAAP consistently
\n applied and present fairly the financial position of such Borrower as of
\n such date and the results of its operations for such period, and (ii) there
\n have been no changes since the end of the fiscal year ended June 30, 2001
\n in the assets, liabilities, financial condition, operations, business or
\n prospects of such Borrower, other than changes in the ordinary course
\n of business the effect of which have not, in the aggregate, been materially
\n adverse to such Borrower;<\/p>\n
(iii) A certificate of an Authorized Officer of each Borrower,
\n certifying(A) the names and true signatures of the Authorized Officers of
\n such Borrower, (B) that the copy<\/p>\n
12<\/p>\n
of the Bylaws of such Borrower attached thereto is a complete and correct
\n copy and that such Bylaws have not been amended, modified or supplemented
\n and are in full force and effect, and (C) that the copy of the resolutions
\n of the Board of Directors of such Borrower approving the transactions
\n contemplated by the Transaction Documents is a complete and correct copy
\n and that such resolutions are in full force and effect and are the only
\n resolutions relating to the matters contemplated by the Transaction
\n Documents;<\/p>\n
(iv) Certificates of the Secretary of State of Texas and, except
\n in the case of ACC, of the Secretary of State of its jurisdiction of
\n incorporation as to the qualification of each Borrower to do business, and
\n the good standing thereof, in such jurisdiction and Texas, each dated on or
\n within 20 Business Days prior to the Effective Date;<\/p>\n
(v) A certificate of an Authorized Officer of ACFS to the
\n effect that the conditions set forth in Sections 3.0l(a) and 3.0l(b)
\n have been satisfied;<\/p>\n
(vi) Opinions (including bringdown opinions as to bankruptcy
\n matters) of Dewey Ballantine, LLP and Chris Choate, Esq., counsel for the
\n Borrowers, dated the Effective Date and addressed to, and reasonably
\n satisfactory in form and substance to, the Issuer;<\/p>\n
(vii) an Officer’s Certificate of ACFS stating that ACFS or
\n another Person approved in writing by the Issuer is the servicer for each
\n FSA Series;<\/p>\n
(viii) an Officer’s Certificate of ACFS certifying copies of the
\n Series Transaction Documents for each Designated Series and stating that,
\n as of the Effective Date, each of the Series Transaction Documents relating
\n to any FSA Series is in full force and effect, no party to any such
\n document is in default of its obligations thereunder, and all of the
\n representations and warranties of the Borrowers set forth in the Series
\n Transaction Documents relating to any FSA Series are true and correct
\n (except to the extent such representations and warranties specifically
\n relate to an earlier date, then such representations and warranties are
\n true and correct as of such earlier date);<\/p>\n
(ix) an Officer’s Certificate of each Borrower stating that
\n there shall have been no changes in the assets, liabilities, financial
\n condition, operations, business or prospects of any Borrower which may have
\n a Material Adverse Effect, including the performance of the receivables
\n owned or serviced by any such party; and<\/p>\n
(x) such other documents, instruments, opinions, certificates
\n as the Issuer may reasonably deem necessary or desirable.<\/p>\n
ARTICLE IV
\n REPRESENTATIONS AND WARRANTIES<\/p>\n
SECTION 4.01 Representations and Warranties of the Borrowers. Each
\nBorrower represents and warrants as follows on the date of this Agreement and
\nthe Effective Date, in each case, with reference to the facts and circumstances
\nthen existing:<\/p>\n
13<\/p>\n
(a) Organization and Good Standing. Such Borrower has been duly
\norganized and is validly existing as a corporation under the laws of the
\njurisdiction of its incorporation, with power and authority to own its
\nproperties and to conduct its business as such properties are currently owned
\nand such business is currently conducted.<\/p>\n
(b) Due Qualification. Such Borrower is duly qualified to do business
\nas a foreign corporation in good standing, and has obtained all necessary
\nlicenses and approvals, in all jurisdictions in which the ownership or lease of
\nits properties or the conduct of its business requires such qualification.<\/p>\n
(c) Power and Authority. Such Borrower has the power and authority to
\nexecute and deliver this Agreement and the other Transaction Documents to which
\nit is a party and to carry out its terms and their terms, respectively; and the
\nexecution, delivery and performance of this Agreement and the other Transaction
\nDocuments to which it is a party have been duly authorized by such Borrower by
\nall necessary corporate action.<\/p>\n
(d) Binding Obligations. This Agreement and the Transaction Documents
\nto which such Borrower is a party have been duly executed and delivered, and
\nthis Agreement and the other Transaction Documents to which such Borrower is a
\nparty constitute legal, valid and binding obligations of such Borrower
\nenforceable in accordance with their respective terms, except as enforceability
\nmay be limited by bankruptcy, insolvency, reorganization or other similar laws
\naffecting the enforcement of creditors’ rights generally and by equitable
\nlimitations on the availability of specific remedies, regardless of whether such
\nenforceability is considered in a proceeding inequity or at law.<\/p>\n
(e) No Violation. The consummation of the transactions contemplated by
\nthis Agreement and the other Transaction Documents to which such Borrower is a
\nparty, and the fulfillment of the terms of this Agreement and the other
\nTransaction Documents to which such Borrower is a party, shall not conflict
\nwith, result in any breach of any of the terms and provisions of, or constitute
\n(with or without notice or lapse of time) a default under any indenture,
\nagreement, mortgage, deed of trust or other instrument to which such Borrower is
\na party or by which such Borrower is bound or any of such Borrower’s properties
\nare subject, or result in the creation or imposition of any Lien upon any of
\nsuch Borrower’s properties pursuant to the terms of any such indenture,
\nagreement, mortgage, deed of trust or other instrument, other than this
\nAgreement, or violate any law, order, rule or regulation applicable to such
\nBorrower of any Governmental Authority having jurisdiction over such Borrower or
\nany of such Borrower’s properties, or in any way adversely affect such
\nBorrower’s ability to perform such Borrower’s obligations under this Agreement
\nor the other Transaction Documents to which such Borrower is a party.<\/p>\n
(f) No Proceedings. There are no proceedings or investigations pending
\nor, to such Borrower’s knowledge, threatened against such Borrower, before any
\ncourt or other Governmental Authority having jurisdiction over such Borrower or
\nits properties (A) asserting the invalidity of this Agreement or any of the
\nother Transaction Documents, (B) seeking to prevent the consummation of any of
\nthe transactions contemplated by this Agreement or any of the other Transaction
\nDocuments, (C) seeking any determination or ruling that might materially and
\nadversely affect the performance by such Borrower of its obligations under, or
\nthe validity or enforceability of,<\/p>\n
14<\/p>\n
this Agreement or any of the other Transaction Documents, (D) involving any
\nBorrower, the Spread Account Depositor or the Spread Accounts for FSA Series or
\n(E) that could have a Material Adverse Effect.<\/p>\n
(g) No Consents. Such Borrower is not required to obtain the consent of
\nany other Person which has not been obtained, or any consent, license, approval
\nor authorization of, or registration or declaration with, any Governmental
\nAuthority in connection with the execution, delivery, performance, validity or
\nenforceability of this Agreement or the other Transaction Documents to which it
\nis a party.<\/p>\n
(h) Chief Executive Office. The chief executive office of ACC and ACFS
\nis located at 801 Cherry Street, Suite 3900, Fort Worth, Texas 76102.<\/p>\n
(i) Solvency. Such Borrower is solvent and will not become insolvent
\nafter giving effect to the transactions contemplated by this Agreement and the
\nTransaction Documents. Such Borrower, after giving effect to the transactions
\ncontemplated by this Agreement and the other Transaction Documents, will have
\nadequate funds to conduct its business in the foreseeable future.<\/p>\n
(j) Compliance With Laws. Such Borrower has complied and will comply in
\nall material respects with all applicable laws, rules, regulations, judgments,
\nagreements, decrees and orders with respect to its business and properties.<\/p>\n
(k) Taxes. Such Borrower has filed on a timely basis all tax returns
\n(including foreign, federal, state, local and otherwise) required to be filed,
\nis not liable for taxes payable by any other Person and has paid or made
\nadequate provisions for the payment of all taxes, assessments and other
\ngovernmental charges due from such Borrower. No tax lien or similar adverse
\nclaim has been filed, and no claim is being asserted, with respect to any such
\ntax, assessment or other governmental charge. Any taxes, fees and other
\ngovernmental charges payable by such Borrower in connection with the execution
\nand delivery of this Agreement and the other Transaction Documents and the
\ntransactions contemplated hereby or thereby have been paid or shall have been
\npaid if and when due at or prior to the Effective Date.<\/p>\n
(l) Information True and Correct. All information heretofore or
\nhereafter furnished by or on behalf of such Borrower to the Issuer in connection
\nwith this Agreement or any Transaction Document or any transaction contemplated
\nhereby or thereby is and will be true and complete in all material respects and
\ndoes not and will not omit to state a material fact necessary to make the
\nstatements contained therein not misleading.<\/p>\n
(m) ERISA Compliance. Such Borrower is in compliance with ERISA and has
\nnot incurred and does not expect to incur any liabilities (except for premium
\npayments arising in the ordinary course of business) to the Pension Benefit
\nGuaranty Corporation (or any successor thereto) under ERISA.<\/p>\n
(n) Financial or Other Condition. There has been no event which may
\nhave a Material Adverse Effect, including any event which may, currently or with
\nthe passage of time,<\/p>\n
15<\/p>\n
materially reduce the amount on deposit in the Spread Accounts or adversely
\nimpact the interest of such Borrower or the Spread Account Depositor in such
\nSpread Accounts.<\/p>\n
(o) Investment Company Status. Such Borrower is not an “investment
\ncompany” within the meaning of the Investment Company Act, or is exempt from all
\nprovisions of such Act.<\/p>\n
(p) No Trade Names. Such Borrower does not have any trade names,
\nfictitious names, assumed names or “doing business as” names.<\/p>\n
(q) Representation and Warranties True and Correct. Each of the
\nrepresentations and warranties of such Borrower contained in the Transaction
\nDocuments is true and correct in all material respects.<\/p>\n
(r) Series Transaction Documents Relating to FSA Series. Each of the
\nSeries Transaction Documents relating to an FSA Series is in full force and
\neffect, no party to any such document is in default of its obligations
\nthereunder, and all of the representations and warranties of AFS Funding and the
\nSpread Account Depositor set forth in such Series Transaction Documents are true
\nand correct (except to the extent such representations and warranties
\nspecifically relate to an earlier date, then such representations and warranties
\nshall be true and correct as of such earlier date). Exhibit B sets forth a
\ncomplete and correct list of the Series Transaction Documents for each FSA
\nSeries as of the date hereof. Exhibit C sets forth for each FSA Series (i) the
\noriginal collateral balance for such Series, (ii) the provider and the amount of
\nall reinsurance issued with respect to such Series, (iii) the outstanding
\nbalance of all replacement cash collateral accounts established in connection
\nwith such Series and (iv) the priority of draws (with the requirement that the
\nnewest transaction (Series 2002-A) be drawn before Series 2001-D, and Series
\n2001-D be drawn before Series 2001-C, etc.). Each Underlying Trustee has a
\nperfected security interest in the property of the related Underlying Trust,
\nsubject to no other security interests or Liens. Each of the Series Transaction
\nDocuments relating to an FSA Series is in full force and effect, no party to
\nany such document is in default of its obligations thereunder, and all of the
\nrepresentations and warranties of any Borrower set forth in such Series
\nTransaction Documents are true and correct.<\/p>\n
(s) Financial Statements. (i) The copies of (a) the unaudited balance
\nsheets of ACFS for its fiscal year ended June 30, 2001, and the related
\nstatements of income, shareholders’ equity and cash flows for such fiscal year,
\nand (b) the audited consolidated balance sheet of ACC for its fiscal year ended
\non June 30, 2001, and the related consolidated statements of income,
\nshareholders’ equity and cash flows for such fiscal year provided to the Issuer,
\nare complete, true and correct and have been prepared in accordance with GAAP
\nconsistently applied and present fairly the financial position of such Persons
\nas of such date and the results of their operations for such periods, and (ii)
\nthe copies of the Accountant’s Report and Procedures Letter for the fiscal year
\nended on June 30, 200l are true and correct.<\/p>\n
SECTION 4.02 Representations and Warranties of the Issuer. The Issuer
\nrepresents and warrants as follows on the date of this Agreement and the
\nEffective Date, in each case, with reference to the facts and circumstances
\nthen existing:<\/p>\n
16<\/p>\n
(a) Organization and Good Standing. It is duly incorporated or
\norganized, validly existing and in good standing under the laws of its
\njurisdiction of incorporation or organization.<\/p>\n
(b) Power and Authority; No Contravention. The execution, delivery and
\nperformance by it of this Agreement are within its corporate powers, have been
\nduly authorized by all necessary corporate action, and do not contravene (A) its
\ncharter, by-laws, or other organizational documents, (B) any law, rule or
\nregulation applicable to it (including any such law, rule or regulation
\nregarding per customer lending limits), or (C) except to the extent that any
\nsuch contravention would not materially and adversely affect the obligations of
\nthe Issuer under this Agreement or any other Transaction Document, any other
\nagreement to which the Issuer is a party.<\/p>\n
(c) No Consents. No consent, license, permit, approval or authorization
\nof, or registration filing or declaration with any governmental authority, is
\nrequired in connection with the execution, delivery, performance, validity or
\nenforceability of this Agreement by or against it.<\/p>\n
(d) Binding Obligations. This Agreement and the Letters of credit have
\nbeen duly executed and delivered by it, and this Agreement constitutes its
\nlegal, valid and binding obligation enforceable against it in accordance with
\nits terms, except as enforceability may be limited by applicable bankruptcy,
\ninsolvency, reorganization, moratorium or similar laws affecting the enforcement
\nof creditors’ rights generally or by general principles of equity (without, in
\nthe case of a bankruptcy, insolvency or reorganization of any Borrower,
\naffecting any right of FSA as a beneficiary under the Letters of Credit).<\/p>\n
ARTICLE V
\n COVENANTS OF THE BORROWERS<\/p>\n
SECTION 5.01 Affirmative Covenants of the Borrowers. Until this
\nAgreement and each Letter of Credit shall have been terminated in accordance
\nwith its respective terms and the Repayment Amount with respect to each Letter
\nof Credit shall have been repaid, the Borrowers hereby agree that:<\/p>\n
(a) Reporting Requirements. ACFS will furnish to the Issuer:<\/p>\n
(i) as soon as available and in any event within 45 days after the
\n end of each of the first three quarters of each fiscal year of ACC,
\n consolidated balance sheets of ACC, for the fiscal quarter most recently
\n ended, and the related statements of income, shareholders’ equity and cash
\n flows for such fiscal quarter and for the period beginning with the end of
\n the fiscal year most recently ended and ending at the end of such quarter,
\n prepared in accordance with GAAP consistently applied and certified by an
\n Authorized Officer of ACC; plus a certificate from an Authorized Officer of
\n ACFS certifying the percentage of total delinquencies and repossessed
\n assets in ACFS’s serviced portfolio as of the end of such quarter, together
\n with back-up financial information with respect thereto as reasonably
\n requested by the Issuer;<\/p>\n
(ii) as soon as available and in any event within 90 days after the
\n end of each fiscal year of ACC, copies of the balance sheets of ACC, as
\n applicable, for the fiscal year<\/p>\n
17<\/p>\n
most recently ended, and the related statements of income, shareholders’
\n equity and cash flows for such fiscal year, prepared in accordance with
\n GAAP consistently applied and certified by an Authorized Officer of ACC;<\/p>\n
(iii) as soon as available and in any event within 95 days after
\n the end of each fiscal year of ACC, copies of the consolidated balance
\n sheet of ACC for the fiscal year most recently ended, and the related
\n consolidated statements of income, shareholders’ equity and cash flows for
\n such fiscal year, prepared in accordance with GAAP consistently applied
\n together with a letter (the “Accountants’ Report”) from a firm of
\n independent certified public accountants selected by ACC and acceptable to
\n the Issuer (the “Independent Accountants”), which letter shall be addressed
\n to the Issuer, to the effect that such firm has audited the books and
\n records of ACC, in which ACFS is included as a consolidated Subsidiary, and
\n issued its report thereon in connection with the audit report on the
\n consolidated financial statements of ACC for such fiscal year most recently
\n completed, and that (a) such audit was made in accordance with GAAP, and
\n accordingly included such test of the accounting records and such other
\n auditing procedures as such firm considered necessary in the circumstances;
\n (b) based on such audit, such consolidated financial statements for such
\n fiscal year present fairly, in all material respects, the consolidated
\n financial position of ACC and its Subsidiaries as the end of such fiscal
\n year and the result of its operations and its cash flows for such fiscal
\n year in accordance with GAAP; (c) during such audit, such firm did not note
\n any events, facts, circumstances, or procedures which would lead it to
\n conclude that the unaudited balance sheets of ACC (together with the
\n related statements of income, shareholders’ equity, cash flows) may not
\n accurately reflect the financial position of ACC as of such dates and
\n periods; and (d) the firm is independent of ACC and each of its
\n Subsidiaries within the meaning of the Code of Professional Ethics of the
\n American Institute of Certified Public Accountants. In addition, as soon as
\n available and in any event within 120 days after the end of each fiscal
\n year of ACC, the Issuer shall be provided with a report on the application
\n of agreed upon procedures to three randomly selected servicer certificates
\n of ACFS as servicer delivered during the fiscal year most recently
\n completed in connection with the outstanding FSA Series for which it acts
\n as servicer, including the delinquency, default and loss statistics
\n required to be specified therein and noting whether any exceptions or
\n errors in such servicer certificates were found.<\/p>\n
(iv) together with the financial statements and reports described
\n in clause (i), (ii) or (iii) above, a certificate of an Authorized Officer
\n of ACC confirming the absence of any Default or Event of Default as of such
\n date and as of the date of such certificate;<\/p>\n
(v) promptly upon the same becoming available to ACC, a copy of
\n each material report, notice, certificate, statement, letter or other
\n communication relating to any FSA Series, including each annual
\n accountants’ report relating to the servicer’s certificates for any FSA
\n Series required to be delivered under the terms of the related Series
\n Transaction Documents (together with a letter permitting the Issuer to rely
\n on such report), each monthly servicer report and any communication
\n required to be delivered to the holders of any of the FSA Series or any
\n Rating Agency (or any other similar entity) rating any of the FSA Series;<\/p>\n
18<\/p>\n
(vi) as soon as available and in any event within 10 days after
\n the end of each month, a collateral summary report with respect to all FSA
\n Series then outstanding in form and substance acceptable to the Issuer;<\/p>\n
(vii) as soon as available and in any event within 10 days after
\n the end of each month, a report on the compliance of AFS Funding with the
\n trigger events and events of default set forth in the agreements pursuant
\n to which the FSA Series Insurer has insured the FSA Series, and promptly
\n (and in no event later than 3 days) following the occurrence of any default
\n under any such agreement, notice of such default; and<\/p>\n
(viii) any other financial information relating to AFS Funding, the
\n Spread Account Depositor, any of the servicers with respect to an FSA
\n Series (each a “FSA Series Servicer”), any of the FSA Series or any Spread
\n Accounts relating to any FSA Series as shall be reasonably requested by the
\n Issuer.<\/p>\n
(b) Other Certificates and Information. ACFS will furnish to the
\n Issuer:<\/p>\n
(i) Immediately after any Borrower knows of the occurrence of
\n any Default or Event of Default, a certificate of an Authorized Officer of
\n ACFS specifying the nature of such event or condition and the action which
\n the Borrowers or AFS Funding have taken and\/or propose to take with respect
\n thereto;<\/p>\n
(ii) Prompt written notice of the occurrence of any default or
\n event of default under any of the Series Transaction Documents relating to
\n any of the FSA Series, including any amortization events, facility
\n termination events, servicer termination events, which notice shall be
\n given not later than the Business Day following the occurrence thereof and
\n which notice shall (A) specify the nature thereof and (B) be accompanied by
\n copies of all notices delivered to any party to any of the Series
\n Transaction Documents relating to any FSA Series or holder of any FSA
\n Series with respect thereto to the extent not delivered pursuant to any
\n other provision of this Agreement;<\/p>\n
(iii) Prompt written notice if (A) any Debt by AFS Funding or the
\n Spread Account Depositor in excess of $100,000 is declared or shall become
\n due and payable prior to its stated maturity, or is called and not paid
\n when due, (B) a payment or other default shall have occurred under or with
\n respect to any other Debt in excess of $100,000 or the holder of any such
\n Debt has the right to declare any such Debt due and payable prior to its
\n stated maturity as a result of such default, (C) any drawing has been made
\n under any insurance policy issued by any insurer of any FSA Series which
\n insurance policy relates to such FSA Series; or (D) any drawing has been
\n made under any Spread Account relating to any FSA Series with respect to
\n which the cumulative outstanding drawings from such Spread Account exceed
\n $250,000;<\/p>\n
(iv) Prompt written notice if (A) any citation, summons,
\n subpoena, order to show cause or other order naming any Borrower, AFS
\n Funding, the Spread Account Depositor or any FSA Series Servicer a party to
\n any proceeding before any Governmental Authority which related in any way
\n to any Transaction Document, or any FSA Series, could<\/p>\n
19<\/p>\n
reasonably be expected to have a Material Adverse Effect or calls into
\n question the validity or enforceability of any of the Transaction Documents
\n or any Series Transaction Documents relating to any FSA Series, and include
\n with such notice a copy of such citation, summons, subpoena, order to show
\n cause or other order, (B) any lapse or other termination of any material
\n license, permit, franchise or other authorization issued to any Borrower,
\n AFS Funding, the Spread Account Depositor or any FSA Series Servicer by any
\n Governmental Authority, the lapse or termination of which could reasonably
\n be expected to result in a Material Adverse Effect, (C) any refusal by any
\n Governmental Authority or any other Person to renew or extend any such
\n material license, permit, franchise or other authorization with respect to
\n which such refusal could reasonably be expected to result in a Material
\n Adverse Effect and (D) any dispute between any Borrower, AFS Funding, the
\n Spread Account Depositor or any FSA Series Servicer and any Person, which
\n dispute could reasonably be expected to have a Material Adverse Effect;<\/p>\n
(v) Prompt written notice of any change or publicly announced
\n consideration of any change by any Rating Agency in the rating of the
\n unsecured debt of any Borrower that would give rise to an Event of Early
\n Amortization, or the rating of any of the FSA Series; and<\/p>\n
(vi) Promptly furnish such other information and financial data
\n as the Issuer may reasonably request.<\/p>\n
(c) Preservation of Corporate Existence and Separate Existence of AFS
\nFunding and the Spread Account Depositor. ACFS shall cause AFS Funding and the
\nSpread Account Depositor to do or cause to be done, all things necessary on its
\npart to preserve and keep in fill force and effect its existence and good
\nstanding as a corporation or business trust, as applicable, under the laws of
\nthe jurisdiction of its incorporation or establishment, as applicable, ACFS will
\nI cause AFS Funding and the Spread Account Depositor to comply fully with the
\nSeries Transaction Documents relating to any FSA Series to which each of them is
\na party so as to maintain each of AFS Funding’s and the Spread Account
\nDepositor’s identity as a separate legal entity from its Affiliates and to make
\nit manifest to third parties that each of AFS Funding and the Spread Account
\nDepositor is an entity with assets and liabilities distinct from its Affiliates.<\/p>\n
(d) Compliance with Laws. The Borrowers shall cause AFS Funding and
\nthe Spread Account Depositor to comply with all applicable laws, rules and
\nregulations and orders of any Governmental Authority (including all applicable
\nlaws, rules and regulations and orders of any Governmental Authority regarding
\nthe use of the proceeds of the Designated Series, including the provisions of
\nRegulations T, U and X of the Board of Governors of the Federal Reserve System,
\nas amended), the noncompliance with which could have a Material Adverse Effect.<\/p>\n
(e) Payment of Taxes. The Borrowers shall cause AFS Funding and the
\nSpread Account Depositor to pay and discharge promptly or cause to be paid and
\ndischarged promptly, all Taxes imposed upon each of them or upon their
\nrespective income or profits or upon any of their respective assets; provided
\nthat the payment of any such Tax shall not be required so long as the amount,
\napplicability or validity thereof shall be contested in good faith by
\nappropriate proceedings, AFS Funding or the Spread Account Depositor, as the
\ncase may be, shall have set aside adequate cash<\/p>\n
20<\/p>\n
reserves in respect thereof, and the Borrowers shall have given the Issuer
\nprompt notice of such contest.<\/p>\n
(f) Payment of Debt and Performance of Obligations. The Borrowers shall
\ncause AFS Funding and the Spread Account Depositor to pay and discharge when due
\nall lawful Debt, obligations and claims for labor, materials and supplies or
\notherwise which, if unpaid, could reasonably be expected to (i) have a Material
\nAdverse Effect or (ii) become a Lien upon any property of AFS Funding or the
\nSpread Account Depositor, as the case may be, other than a Permitted Lien,
\nunless and to the extent only that the validity of such Debt, obligation or
\nclaim shall be contested in good faith and by appropriate proceedings diligently
\nconducted by AFS Funding or the Spread Account Depositor, as the case may be,
\nand that any such contested Debt, obligations or claims shall not constitute or
\ncreate a Lien upon property of AFS Funding or the Spread Account Depositor, as
\nthe case may be, and provided that the Borrowers shall give the Issuer prompt
\nnotice of any such contest and AFS Funding or the Spread Account Depositor, as
\nthe case may be, shall have retained adequate cash reserves in respect thereof.<\/p>\n
(g) Books and Records; Visitation. The Borrowers shall cause AFS
\nFunding and the Spread Account Depositor to keep proper books of record and
\naccount in which complete, true and correct entries in conformity with GAAP and
\nall requirements of law shall be made of all material dealings and transactions
\nin relation to its business and activities; upon reasonable notice, permit
\nrepresentatives of the Issuer to visit the offices of AFS Funding or the Spread
\nAccount Depositor, as the case may be, or such other place where such books of
\nrecord and accounts are kept and to discuss the operations and financial
\ncondition of AFS Funding or the Spread Account Depositor, as the case may be,
\nwith the Authorized Officers thereof.<\/p>\n
(h) Series Transaction Documents. ACFS shall cause AFS Funding to
\ndeliver copies of all Series Transaction Documents relating to an FSA Series to
\nthe Issuer promptly after the closing of such Series together with an Officer’s
\nCertificate of ACFS that such copies are true, correct and complete.<\/p>\n
(i) Compliance with Documents. Each Borrower shall comply, in all
\nrespects, with the terms of the Transaction Documents to which each of them is a
\nparty, and the Borrowers shall cause AFS Funding and the Spread Account
\nDepositor to comply, in all respects, with the terms of the Series Transaction
\nDocuments relating to any FSA Series to which each of them is a party.<\/p>\n
(j) Conformity of Issued FSA Series to Relevant Series Transaction
\nDocuments. ACFS shall cause AFS Funding and the Spread Account Depositor to
\ncause each FSA Series issued to be in compliance in all material respects with
\nthe terms of the Series Transaction Documents relating to such FSA Series,
\nincluding the existence of the credit enhancement and\/or overcollateralization
\ncontemplated by such documents.<\/p>\n
(k) Accountant’s Letters; Legal Opinions. The Borrowers shall, and
\nshall cause AFS Funding to, provide to the Issuer copies of all accountant’s
\nletters and accountant’s annual statements of compliance with respect to each
\nFSA Series and copies of all opinions of counsel rendered in connection with any
\nFSA Series and a reliance letter with each such document pursuant to which the
\nIssuer may rely on all such documents.<\/p>\n
21<\/p>\n
(l) Maintenance of Existence. Each Borrower will, and will cause AFS
\nFunding and the Spread Account Depositor to, do or cause to be done all things
\nnecessary on its part to preserve and keep in full force and effect its
\nexistence and good standing as a corporation or other entity under the laws of
\nits jurisdiction of formation.<\/p>\n
(m) Appointment of Servicer. If FSA is not the Controlling Party with
\nrespect to any FSA Series, to the extent AFS Funding has control over the
\nappointment of a successor servicer with respect to such FSA Series under the
\nrelated Series Transaction Documents, ACFS will cause AFS Funding to obtain the
\nprior written consent of the Issuer prior to the appointment of any successor
\nservicer.<\/p>\n
(n) Use of Facility. The Borrowers shall use the Letters of Credit to
\nprovide credit support for the Policies.<\/p>\n
(o) Rating. If requested by the Issuer at any time, the Borrowers shall
\npay the costs and expenses of having the letter of credit facility provided
\nhereunder rated by any one Rating Agency chosen by the Issuer.<\/p>\n
(p) Spread Account Depositor Liens. ACFS will cause AFS Funding to
\ncause the Spread Account Depositor not to create, assume, or suffer to exist any
\nLien on any personal property of the Spread Account Depositor whether now owned
\nor hereafter acquired by the Spread Account Depositor; provided, however, that
\nsuch restriction shall not apply to: (i) any Lien for taxes, assessments or
\nother governmental charges or levies not yet subject to penalties for
\nnon-payment or the validity, applicability or amount of which is being contested
\nin good faith by appropriate legal proceedings and with respect to which
\nadequate reserves in accordance with GAAP have been established by the Spread
\nAccount Depositor; (ii) any Lien which is imposed by law (such as those of
\nmechanics, carriers and warehousemen), if payment of the obligation secured
\nthereby is not yet due or the validity, the applicability or amount of which is
\nbeing contested in good faith by appropriate legal proceedings and with respect
\nto which adequate reserves in accordance with GAAP have been established by the
\nSpread Account Depositor; (iii) judgment Liens in existence less than five days
\nafter the entry thereof or with respect to which execution has been stayed, so
\nlong as the aggregate amount of all such judgment Liens at any time does not
\nexceed $100,000, or judgment Liens the payment of which is covered in full
\n(subject to a customary deductible) by insurance; and (iv) Liens in favor of the
\ncollateral agent specified in the Spread Account Agreement for the benefit of
\nthe FSA Series Insurer and the related secured parties,<\/p>\n
(q) Spread Account Depositor Payments from Spread Accounts. ACFS will
\ncause AFS Funding to cause the Spread Account Depositor not to make any payments
\nfrom any Spread Account other than those payments due under the terms of the
\nrelated Series Transaction Documents for the FSA Series. Without limiting the
\nforegoing, ACFS agrees to cause AFS Funding to cause the Spread Account
\nDepositor not to make any voluntary, optional, or accelerated payments with
\nrespect to any Series with funds from the relevant Spread Account.
\nNotwithstanding the foregoing, neither AFS Funding nor the Spread Account
\nDepositor shall be prevented from replacing funds on deposit in any Spread
\nAccount with spread account replacement reinsurance so long as such reinsurance
\nconstitutes Subsequent Reinsurance. In addition, the foregoing is not intended
\nto limit the rights of<\/p>\n
22<\/p>\n
FSA or the Underlying Trustees pursuant to the Series Transaction Documents
\nrelating to an FSA Series.<\/p>\n
(r) Spread Account Depositor Merger, Consolidation, Etc. ACFS will
\ncause AFS Funding to cause the Spread Account Depositor not to merge or
\nconsolidate with or into, or sell, convey, transfer, exchange, lease or
\notherwise dispose of (whether in one transaction or in a series of transactions)
\na11 or substantially all of its assets (whether now owned or hereafter acquired)
\nto, acquire all or substantially all of the assets of, any Person or division of
\nany Person; or sell, convey, transfer, exchange, lease or otherwise dispose of
\nany of its assets.<\/p>\n
(s) Spread Account Depositor Protection of Collateral. ACFS will cause
\nAFS Funding to cause the Spread Account Depositor not to sell, transfer,
\nexchange or otherwise dispose of, or pledge, mortgage, hypothecate or otherwise
\nencumber (or permit such to occur or suffer such to exist), any part of its
\npersonal property, or permit any Lien (other than the Lien of the collateral
\nagent specified in the Spread Account Agreement for the benefit of the
\ninsurer of the FSA Series and the related secured parties) to be created on or
\nextend to or other-wise upon or burden such property or any part thereof any
\ninterest therein or the proceeds thereof other than a sale, transfer, exchange,
\ndisposal, pledge, mortgage, hypothecation or encumbrance for the benefit of FSA
\nand\/or the Underlying Trustees permitted under or pursuant to the terms of any
\nof the Series Transaction Documents relating to an FSA Series.<\/p>\n
(t) Spread Account Depositor Business. ACFS will cause AFS Funding to
\ncause the Spread Account Depositor not to engage in any business or activity
\nother than the business described in the Trust Agreement of the Spread Account
\nDepositor as in effect on the date hereof.<\/p>\n
(u) Spread Account Depositor Indebtedness. ACFS will cause AFS Funding
\nto cause the Spread Account Depositor not to incur, create, assume, suffer to
\nexist otherwise become liable with respect to any Debt other than Debt in favor
\nof FSA and\/or the Underlying Trustees created or permitted under or pursuant to
\nthe terms of any of the Series Transaction Documents relating to an FSA Series.<\/p>\n
(v) Notice of Seller or Servicer Repurchase. ACFS will provide
\nimmediate written notice to the Issuer of any mandatory purchase by the seller
\nor servicer or reconveyance to the seller or servicer of the pool of receivables
\nheld by the trust which issued any FSA Series. In addition, ACFS, in its
\ncapacity as servicer for an FSA Series, shall, upon becoming aware of any event
\nwhich would require the seller or servicer of the pool of receivables to
\npurchase such receivables, give immediate notice of such event to the other
\nparties to the Series Transaction Documents for the related FSA Series and the
\nIssuer and take all other actions necessary for the seller or servicer to
\nrepurchase such receivables.<\/p>\n
(w) Servicer Failure to Perform. ACFS will reimburse the trust issuing
\nany FSA Series for any decrease in excess cash flow or reduction in the amount
\ndeposited in the relevant Spread Account which results from the failure of ACFS
\nto perform its obligations as the servicer under the Series Transaction
\nDocuments relating to such FSA Series.<\/p>\n
23<\/p>\n
SECTION 5.02 Negative Covenants with respect to Activities of AFS
\nFunding. Until this Agreement shall have terminated in accordance with its terms
\nand the Repayment Amount with respect to each Letter of Credit has been repaid,
\nno Borrower will directly or indirectly:<\/p>\n
(a) Payments from Spread Accounts. Permit AFS Funding to make any
\npayments from any Spread Account (including funds replaced with Spread Account
\nReplacement Reinsurance) other than those payments due under the terms of the
\nrelated Series Transaction Documents for the applicable FSA Series. Without
\nlimiting the foregoing, the Borrowers shall not permit AFS Funding to make any
\nvoluntary, optional, or accelerated payments with respect to any Series with
\nfunds from the relevant Spread Account. Notwithstanding the foregoing, neither
\nof AFS Funding nor the Spread Account Depositor shall be prevented from
\nreplacing funds on deposit in any Spread Account with Spread Account Replacement
\nReinsurance. Any Spread Account Replacement Reinsurance obtained in connection
\nwith a release of funds on deposit in any Spread Account must constitute
\n“Qualified Subsequent Reinsurance” under the terms hereof.<\/p>\n
(b) Stock Merger, Consolidation, Etc. Permit AFS Funding to merge or
\nconsolidate with or into, or sell, convey, transfer, exchange, lease or
\notherwise dispose of (whether in one transaction or in a series of transactions)
\nall or substantially all of its assets (whether now owned or hereafter acquired)
\nto, acquire all or substantially all of the assets of, any Person or division of
\nany Person; or sell, convey, transfer, exchange, lease or otherwise dispose of
\nany of its assets; provided however, the foregoing shall not limit the ability
\nof AFS Funding to sell, convey or transfer, from time to time, pools of
\nreceivables to other Persons in connection with the issuance of any Series.<\/p>\n
(c) Modifications of Series Transaction Documents. Permit AFS Funding
\nto amend or otherwise modify, without the consent of the Issuer (which consent
\nshall not unreasonably be withheld) any of the Series Transaction Documents
\nrelating to any FSA Series to which it is a party which amendment or
\nmodification would materially and adversely affect the Issuer including any
\namendment or modification which increases the amount of payments (including any
\nservicing fees) with respect to or accelerates the scheduled maturity date of
\nany FSA Series or reduces the amount of cash that would otherwise be available
\nto reduce the Maximum Stated Amount for any Letter of Credit pursuant to Section
\n2.0 1 (including any reduction to the amount of the Nonallocated Amount
\nAvailable); provided that the foregoing shall not prohibit AFS Funding from
\namending any of the Series Transaction Documenents relating to an FSA Series to
\ndelete or otherwise reduce or make less likely to occur the events that
\nconstitute trigger events and events of default under the agreements pursuant to
\nwhich the FSA Series Insurer has insured the FSA Series.<\/p>\n
(d) Appointment of Trustee. If FSA is not the Controlling Party with
\nrespect to an FSA Series, to the extent AFS Funding has control over the
\nappointment of the trustee of such FSA Series (initial and any successor
\ntrustee), if such trustee is to be a Person other than Bank One, N.A., permit
\nAFS Funding to appoint, or cause to be appointed, such trustee until AFS Funding
\nhas received the prior written consent of the Issuer.<\/p>\n
(e) Additional Series. Issue any FSA Series after the date hereof
\nunless the following conditions shall have been satisfied on or before the date
\nof such issuance:<\/p>\n
24<\/p>\n
(i) The Issuer shall have received an Officer’s Certificate
\n of ACFS stating that (A) the sum of the amount on deposit in the Spread
\n Account with respect to such Series and the Qualified Subsequent
\n Reinsurance with respect to such Series is equal to at least 5% of the
\n initial aggregate principal amount of the securities constituting such
\n Series, (B) the aggregate amount of cash on deposit in the Spread Account
\n with respect to such Series is equal to at least 2% of the initial
\n aggregate principal amount of the securities constituting such Series and
\n (C) the “Accelerated Payment Termination Date” for such Series shall be
\n structured so as to allow the amount on deposit in the spread account to be
\n “shareable” pursuant to the Spread Account Agreement within 400 days of the
\n closing date of such Series; and<\/p>\n
(ii) The Issuer shall have received evidence satisfactory to it
\n that the Series shall have been insured by FSA and such FSA’s credit risk
\n on a stand-alone basis shall have been rated at least Baa3\/BBB- by Moody’s
\n and S&P, respectively.<\/p>\n
SECTION 5.03 Covenants with respect to Activities of the Borrowers.
\nUntil this Agreement shall have terminated in accordance with its terms and the
\nRepayment Amount with respect to each Letter of Credit has been repaid:<\/p>\n
(a) Continuing Performance as Servicer. So long as ACFS is qualified
\nto act as Servicer and it is the Servicer under any FSA Series, ACFS shall not
\nresign as Servicer with respect to such FSA Series without the prior written
\nconsent of the Issuer. If FSA is not the Controlling Party, to the extent ACFS
\nis no longer the Servicer for any FSA Series and ACFS has control over the
\nappointment of a successor servicer with respect to such FSA Series under the
\nrelated Series Transaction Documents, ACFS shall consult with the Issuer prior
\nto the appointment of any successor servicer.<\/p>\n
(b) Modifications of Series Transaction Documents. Amend or otherwise
\nmodify, without the consent of the Issuer (which consent shall not unreasonably
\nbe withheld) any of the Series Transaction Documents relating to any FSA Series
\nto which it is a party which amendment or modification would materially and
\nadversely affect the Issuer including any amendment or modification which
\nincreases the amount of payments (including any servicing fees) with respect to
\nor accelerates the scheduled maturity date of any FSA Series or reduces the
\namount of cash flows that will be applied to reduce the Maximum Stated Amount
\nfor any Letter of Credit pursuant to Section 2.01 (including any reduction to
\nthe amount of the Nonallocated Amount Available); provided that the foregoing
\nshall not prohibit any Borrower from amending any of the Series Transaction
\nDocuments relating to an FSA Series to delete or otherwise reduce or make less
\nlikely to occur the events constituting trigger events and events of default
\nunder the agreements pursuant to which the FSA Series Insurer has insured the
\nFSA Series.<\/p>\n
(c) Appointment of Trustee. If FSA is not the Controlling Person with
\nrespect to an FSA Series, to the extent ACFS Funding has control over the
\nappointment of the trustee of such FSA Series (initial and any successor
\ntrustee), if such trustee is to be a Person other than Bank One, N.A., appoint,
\nor cause to be appointed, such trustee until ACFS has received the prior written
\nconsent of the Issuer.<\/p>\n
25<\/p>\n
(d) Optional Repurchase. ACFS shall not exercise any right (as a
\nservicer under any FSA Series) of optional repurchase or reconveyance of the
\npool of receivables held by the trust which issued the FSA Series without the
\nconsent of the Issuer (which consent shall not unreasonably be withheld) if, as
\na result of such repurchase or reconveyance, there will be any amounts owing to
\nthe Issuer with respect to such FSA Series under this Agreement or any other
\nTransaction Document.<\/p>\n
(e) Notice of Seller or Servicer Repurchase. ACFS shall provide
\nimmediate written notice to the Issuer of any mandatory purchase by the seller
\nor servicer or reconveyance to the seller or servicer of the pool of receivables
\nheld by the trust which issued any FSA Series. In addition, ACFS, in its
\ncapacity as servicer for an FSA Series, shall, upon becoming aware of any event
\nwhich would require the seller or servicer of the pool of receivables to
\npurchase such receivables, give immediate notice of such event to the other
\nparties to the Series Transaction Documents relating to such FSA Series and the
\nIssuer and take all other actions necessary for the seller or servicer to
\nrepurchase such receivables.<\/p>\n
(f) Nomination of Lock-box Bank. Subject to FSA’s rights as
\nControlling Party under the Series Transaction Documents relating to an FSA
\nSeries to direct the Servicer, ACFS, as servicer for an FSA Series, shall not
\nterminate any lock-box relating thereto, and, in the event of resignation of a
\nlock-box bank relating to any FSA Series, ACFS, in its capacity as servicer for
\nsuch FSA Series, shall not nominate a new lock-box bank, in either case without
\nthe prior written consent of the Issuer, which consent shall not unreasonably be
\nwithheld.<\/p>\n
ARTICLE VI
\n EVENTS OF DEFAULT; CASH COLLATERAL PROVISIONS<\/p>\n
SECTION 6.01 Events of Default. Each of the following events shall
\nconstitute an “Event of Default” hereunder:<\/p>\n
(a) any Borrower shall fail to pay (i) any principal portion of the
\nRepayment Amount for any Letter of Credit when due or (ii) any interest, fees or
\nother amount payable hereunder within one Business Day after the same becomes
\ndue and payable; or<\/p>\n
(b) any representation or warranty by any Borrower herein or in any
\nother Transaction Document to which such Borrower is party shall prove to have
\nbeen incorrect in any material respect when made or deemed made; or<\/p>\n
(c) any Borrower shall tail in any material respect to perform or
\nobserve any term, covenant or agreement contained in Section 5.02 if the failure
\nto perform or observe such term covenant or agreement shall remain unremedied
\nfor 10 Business Days (determined in the case of a Lien described in clause (a)
\nof such Section, after giving effect to the five Business Day cure period
\nprovided in such Section); or<\/p>\n
(d) any Borrower shall fail in any material respect to perform or
\nobserve any term, covenant or agreement contained in this Agreement or any of
\nthe other Transaction Documents (other than as described in Section 6.01(a),
\n6.01(b) or 6.01(c) above) to be performed or observed by it if<\/p>\n
26<\/p>\n
the failure to perform or observe such other term covenant or agreement shall
\nremain unremedied for 30 days after written notice thereof shall have been given
\nto such Borrower by the Issuer; or<\/p>\n
(e) AFS Funding or any Borrower shall fail to pay any principal of or
\npremium or interest on any Debt (other than, with respect to any Borrower, its
\nobligations under this Agreement) having a principal sum of $100,000 or more,
\nwith respect to AFS Funding or $10,000,000 or more, with respect to any
\nBorrower, when the same becomes due and payable (whether by scheduled maturity,
\nrequired prepayment, acceleration, demand or otherwise) and such failure shall
\ncontinue after the applicable grace period, if any, specified in the agreement
\nor instrument relating to such Debt; or any other default under any agreement or
\ninstrument relating to any such Debt of any Borrower or any other event, shall
\noccur and shall continue after the applicable grace period, if any, specified in
\nsuch agreement or instrument if the effect of such default or event is to
\naccelerate, or to permit the acceleration of, the maturity of such Debt; or any
\nsuch Debt shall be declared to be due and payable or required to be prepaid
\n(other than by a regularly scheduled required prepayment), redeemed, purchased
\nor defeased, or an offer to prepay, redeem, purchase or defease such Debt shall
\nbe required to be made, in each case, prior to the stated maturity thereof, or<\/p>\n
(f) any facility termination event, early amortization event,
\nservicer termination event, any drawdown under the insurance policy provided by
\nthe FSA Series Insurer with respect to any FSA Series or event of default or
\nother similar event by any other name shall occur under any of the FSA Series
\n(whether or not declared, waived or consented to by the relevant trustee, the
\nFSA Series Insurer, the relevant trust or the holders of such FSA Series) and
\nany grace period or cure period set forth in the Series Transaction Documents
\nfor such FSA Series shall have expired;<\/p>\n
(g) any event of default or other default shall occur under any
\ninsurance and reimbursement agreement with the FSA Series Insurer and any grace
\nperiod or cure period set forth in the relevant insurance and reimbursement
\nagreement shall have expired;<\/p>\n
(h) any Insolvency Event shall occur with respect to AFS Funding, the
\nSpread Account Depositor, any FSA Series Servicer or any of the Borrowers;<\/p>\n
(i) there shall remain undischarged for more than ten days any final
\njudgment or execution action against AFS Funding, the Spread Account Depositor
\nor any Borrower that, together with other outstanding final judgments and
\nexecution actions against AFS Funding the Spread Account Depositor or such
\nBorrower, as the case may be, exceeds $100,000 in the aggregate with respect to
\nAFS Funding or the Spread Account Depositor or $10,000,000 in the aggregate with
\nrespect to any Borrower; or<\/p>\n
(j) the Pension Benefit Guaranty Corporation or the Internal Revenue
\nService shall have filed notice of one or more Liens against AFS Funding, the
\nSpread Account Depositor or any Borrower or any of their respective properties
\nor assets and such Liens shall remain undischarged for more than 30 Business
\nDays after the date of such notice; or<\/p>\n
(k) The Borrowers and their Affiliates shall not own or shall cease
\nfor any reason to own 100% of the issued and outstanding capital stock of AFS
\nFunding or AFS Funding shall not<\/p>\n
27<\/p>\n
own or shall cease for any reason to own l00% of the beneficial interests in the
\nSpread Account Depositor; or<\/p>\n
(l) any material representation or warranty made by any Borrower or
\nthe servicer in any of the Series Transaction Documents relating to any FSA
\nSeries or any information delivered to any Borrower with respect to any FSA
\nSeries shall prove to have been incorrect in any material respect when made or
\nwhen delivered, which continues to be incorrect for a period of 10 Business Days
\nafter written notice thereof shall have been given to the Borrowers by the
\nIssuer; or<\/p>\n
(m) any Transaction Document shall, for any reason (except in
\naccordance with its terms), cease to be in full force and effect, or cease to be
\nthe legally valid, binding and enforceable obligations of the parties thereto,
\nor any party to any Transaction Document shall, directly or indirectly, contest
\nin any manner such effectiveness, validity, binding nature or enforceability; or<\/p>\n
(n) the long term senior unsecured debt of ACC is rated by any of
\nFitch or Moody’s at or below B or B2 respectively.<\/p>\n
SECTION 6.02 Cash Collateral Provisions.<\/p>\n
(a) Upon the occurrence of any Event of Default or at any time
\nthereafter during the continuance thereof, (i) if such event is an Event of
\nDefault specified in Section 6.01(h), the Borrowers shall immediately deliver
\ncash collateral to the Issuer in an amount equal to the Recourse Limit plus all
\naccrued and unpaid interest thereon and all other amounts owing hereunder, and
\nthe Issuer may exercise any and all remedies and other rights provided herein or
\nin the Transaction Documents and (ii) if such event is any other Event
\nof Default, the Issuer may, by notice of default to the Borrowers, direct the
\nBorrowers to deliver cash collateral to the Issuer in an amount equal to the
\nRecourse Limit plus all accrued and unpaid interest thereon and the Issuer may
\nexercise any and all remedies and other rights provided herein or in the
\nTransaction Documents. Except as otherwise provided in this Section,
\npresentment, demand, protest and all other notices of any kind are hereby
\nexpressly waived. Each Borrower hereby further expressly waives and covenants
\nnot to assert any appraisement, valuation, stay, extension, redemption or
\nsimilar laws, now or at any time hereafter in force which might delay, prevent
\nor otherwise impede the performance or enforcement of any Transaction Document.<\/p>\n
(b) The Borrowers shall deliver cash collateral to the Issuer on any
\nDesignated Series Amortization Date for a Designated Series, and on each of the
\nfour succeeding Distribution Dates, in each case in an amount equal to 20% of
\nthe Maximum Stated Amount of the applicable Letter of Credit on such Designated
\nSeries Amortization Date.<\/p>\n
(c) On each Distribution Date upon or following the occurrence of an
\nEvent of Early Amortization, the Borrowers shall deliver cash collateral to the
\nIssuer in an amount equal to the Nonallocated Amount Available on such
\nDistribution Date plus $5,000,000.<\/p>\n
(d) The Borrowers’ obligation to deliver cash collateral hereunder
\nshall be limited to the Recourse Limit and the amount of the Nonallocated Amount
\nAvailable from and after the time such obligation arises (as if the obligation
\nto provide cash collateral were a Repayment Amount in<\/p>\n
28<\/p>\n
accordance with Section 2.03(d)); provided that the delivery of cash collateral
\nshall not affect the obligations of the Borrowers described in Section 2.03(d).<\/p>\n
(e) Any cash collateral delivered to the Issuer shall be held by the
\nIssuer and invested in Cash Equivalents (without liability for interest or
\nlosses thereon) and applied to the Repayment Amount. After the expiration or
\ntermination of all Letters of Credit, such cash collateral shall be applied by
\nthe Issuer to any remaining obligations hereunder and any excess shall be
\ndelivered to ACFS or as a court of competent jurisdiction may direct.<\/p>\n
SECTION 6.03 Mandatory Pre-Reimbursements.<\/p>\n
(a) If an LOC Termination Disbursement or an SPE Loan has been made,
\nthe Borrowers shall pay the Issuer, in respect of the potential Repayment
\nAmounts (i) on any Designated Series Amortization Date for a Designated Series,
\nand on each of the four succeeding Distribution Dates, an amount equal to 20% of
\nthe amount of cash collateral on deposit in the collateral account referred to
\nin Section 2.02(f) for the applicable Letter of Credit on such Designated Series
\nAmortization Date, and (ii) on each Distribution Date upon or following the
\noccurrence of an Event of Early Amortization, an amount equal to the
\nNonallocated Amount Available on such Distribution Date plus $5,000,000.<\/p>\n
(b) If at any time after the latest Standard Termination Date for all
\nLetters of Credit the Issuer has received payment in full of the aggregate
\nRepayment Amount, all amounts in respect of the principal balance of the cash
\ncollateral accounts maintained pursuant to Section 2.02(f) which are thereafter
\nreleased to the Issuer shall be distributed to ACFS in repayment of any payments
\nmade by the Borrowers under clause (a), without any interest or other income in
\nrespect of such distribution.<\/p>\n
(c) The Borrowers’ obligation to make payments pursuant to clause (a)
\nshall be limited to the Recourse Limit and the amount of the Nonallocated Amount
\nAvailable from and after the time such obligation arises.<\/p>\n
ARTICLE VII
\n MISCELLANEOUS<\/p>\n
SECTION 7.01 Amendments, Etc. The Issuer and the Borrowers may, from
\ntime to time, enter into written amendments, supplements or modifications of
\nthis Agreement, and the Issuer may execute and deliver to any such parties a
\nwritten instrument waiving or a consent to a departure from, on such terms and
\nconditions as the Issuer may specify in such instrument, any of the requirements
\nof this Agreement or any Default or Event of Default and its consequences;
\nprovided, however, that (a) the consent of FSA shall be required for (i) any
\namendment to Section 2.01, 2.02, 2.03(a) 2.03(b), 2.03(d), 7.01 or 7.06 (or any
\ndefined term contained therein as used therein) and (ii) any other amendment
\nthat would materially and adversely affect FSA (which FSA consent in the case of
\nthis clause (a)(ii) shall not be unreasonably withheld) and (b) in any event,
\nthe consent of FSA shall not be required in connection with (i) any extension of
\nthe Scheduled Expiry Date for any Letter of Credit or any Designated Series
\nMaturity Date (as defined in the applicable Series Transaction Documents), (ii)
\nany change in the rate, or the time of payment, of interest on drawings under
\nthe<\/p>\n
29<\/p>\n
Letters of Credit, (iii) any change in the rate of, or the date of payment for,
\nany fee payable to the issuer hereunder or (iv) any change in the date or the
\namount of (x) any cash collateral required to be delivered by the Borrowers
\npursuant to Section 6.02 or (y) any mandatory payment required to be made by the
\nBorrowers pursuant to Section 6.03.<\/p>\n
In the case of any waiver, the parties to the applicable Transaction
\nDocument and the Issuer shall be restored to their former position and rights
\nhereunder and under the other Transaction Documents to the extent provided for
\nin such waiver, and any Default or Event of Default waived shall not extend to
\nany subsequent or other Default or Event of Default, or impair any right
\nconsequent thereon. The Transaction Documents may not be amended orally or by
\nany course of conduct.<\/p>\n
SECTION 7.02 Notices, Etc. The Borrowers hereby appoint ACC to act as
\nagent for the Borrowers with respect to the receiving and giving of any notices
\nor any other written instruction hereunder and, notwithstanding anything to the
\ncontrary contained in this Agreement, any notice required to be delivered by the
\nIssuer to the Borrowers may be delivered by the Issuer to ACC only as agent for
\nthe Borrowers. The Issuer is hereby entitled to rely on any communication given
\nor transmitted by ACC as if such communication were given or transmitted by each
\nBorrower. All notices, requests and demands to or upon the respective parties
\nhereto to be effective shall be in writing (including by facsimile, telegraph or
\ntelex), and, unless otherwise expressly provided herein, shall be deemed to have
\nbeen duly given or made when delivered by hand, or, in the case of mail or
\nfacsimile notice, when received, or, in the case of telegraphic notice,
\nwhen delivered to the telegraph company, or, in the case of telex notice, when
\nsent, answer back received, addressed as follows or to such other address as may
\nbe hereafter notified by the respective parties hereto:<\/p>\n
ACC as agent for c\/o AmeriCredit Corp.
\n the Borrowers 801 Cherry Street, Suite 3900
\n Fort Worth, Texas 76102
\n Attention: Treasurer
\n Telephone: 817-302-7022
\n Facsimile: 817-302-7942<\/p>\n
FSA: Financial Security Assurance Inc.
\n 35O Park Avenue
\n New York, NY 10022
\n Attention: Managing Director – Transaction Oversight
\n Telephone: (212) 826-0100
\n Facsimile: (212) 339-3518<\/p>\n
The Issuer: Deutsche Bank AG, New York Branch
\n 31 West 52\/nd\/ Street
\n New York, NY 10019
\n Attention: Eric Shea
\n Telephone: 212-469-8436
\n Facsimile: 212-469-5160<\/p>\n
30<\/p>\n
with a copy to:<\/p>\n
Deutsche Bank AG, New York Branch
\n Global Loan operations
\n Standby Letter of Credit Unit
\n 60 Wall street
\n MS NYC 60-2708
\n New York, NY 10005
\n Attention: Marco Orlando
\n Telephone: 212-602-1132
\n Facsimile: 212-797-0403,<\/p>\n
SECTION 7.03 No Waiver: Remedies. No failure on the part of the Issuer
\nto exercise, and no delay in exercising any right hereunder shall operate as a
\nwaiver thereof nor shall any single or partial exercise of any such right
\npreclude any other or further exercise thereof or the exercise of any other
\nright. The remedies herein provided are cumulative and not exclusive of any
\nremedies provided by law.<\/p>\n
SECTION 7.04 Costs, Expenses and Indemnification. The Borrowers agree
\nto pay all costs and expenses of the Issuer in connection with the preparation,
\nexecution, delivery, modification and amendment of this Agreement, the other
\nTransaction Documents and the other documents to be delivered hereunder and
\nthereunder, including the reasonable fees and out-of-pocket expenses of counsel
\nfor the Issuer with respect thereto and with respect to advising such agents as
\nto their respective rights and responsibilities under this Agreement and such
\nother Transaction Documents. The Borrowers further agree to pay all costs and
\nexpenses, if any (including reasonable counsel fees and expenses), of the Issuer
\nin connection with the enforcement of this Agreement, the other Transaction
\nDocuments and the other documents to be delivered hereunder and thereunder,
\nincluding reasonable counsel fees and expenses in connection with the
\nenforcement of rights under this Section 7.04 and all costs and expenses
\n(including reasonable counsel fees and expenses) in connection with the
\nnegotiation of any restructuring or “work-out” (whether or not consummated) of
\nthe obligations of the Borrowers hereunder or under any Transaction Document.
\nThe Borrowers further agree to indemnify the Issuer and each of its respective
\naffiliates, control persons, officers, directors, employees and agents (each an
\n“Indemnified Party”), from and against any and all claims, damages, losses,
\nliabilities and expenses (including reasonable fees and disbursements of
\ncounsel) for which any of them may become liable or which may be incurred by or
\nasserted against any of them in connection with the investigation of,
\npreparation for or defense of any pending or threatened claim or any action or
\nproceeding arising out of, related to or in connection with the transactions
\ndescribed herein whether or not any Indemnified Party or any Borrower is a party
\nthereto, including any transaction in which any proceeds of any Borrowing are or
\nare proposed to be applied; provided, however, that the Borrowers shall not be
\nliable for any portion of such claims, damages, losses, liabilities or expenses
\nresulting from an Indemnified Party’s gross negligence or willful misconduct.
\nThe provisions of this Section 7.04 shall survive the termination of this
\nAgreement.<\/p>\n
SECTION 7.05 Binding Effect: Termination. This Agreement shall become
\neffective upon the Effective Date and shall thereafter be binding upon and inure
\nto the benefit of each of the parties hereto and each of their respective
\nsuccessors and assigns, except that no Borrower may<\/p>\n
31<\/p>\n
assign its rights hereunder or any interest herein without the prior written
\nconsent of the Issuer. This Agreement shall terminate on the date after the
\nExpiry Date of each Letter of Credit on which the Repayment Amount with respect
\nto each Letter of Credit shall have been paid in full.<\/p>\n
SECTION 7.06 Successors and Assigns. This Agreement shall be binding
\nupon the parties hereto and their respective successors and assigns; provided,
\nhowever, that<\/p>\n
(a) no Borrower may transfer or assign any of its obligations, rights,
\nor interests hereunder without the prior written consent of the Issuer; and<\/p>\n
(b) the Issuer may at any time grant participations in the minimum
\namounts of $5,000,000 to any other Person (each a “Participant”), in all or part
\nof its obligations under any Letter of Credit and its rights under this
\nAgreement (it being understood and agreed that no other party hereto shall have
\nany obligation to give notices to any such Participant, that such participation
\nwill not in any way reduce the Issuer’s commitment to make LOC Disbursements
\nhereunder, and that such participation shall not increase the obligations
\n(including with respect to costs and expenses (provided that the Borrowers may
\nbe liable for any increase in costs and expenses resulting from any
\nparticipation consented to by the Borrowers)) of any other party hereunder);
\nprovided that the Issuer shall be entitled to receive any increased costs or
\nindemnities payable hereunder incurred by the Issuer or such Participant to the
\nextent not in excess of such amounts calculated as if there were no
\nparticipation.<\/p>\n
The Issuer hereby acknowledges and agrees that any such disposition will not
\nalter or affect the Issuer’s direct obligations to the Borrowers or FSA, and
\nthat neither Borrower or FSA shall have any obligation to have any communication
\nor relationship with any Participant in order to enforce such obligations of
\nthe Issuer hereunder and under the applicable Letter of Credit. All agreements,
\nrepresentations and warranties made herein shall survive the execution and
\ndelivery of this Agreement.<\/p>\n
Any direct or indirect transfer or purported transfer of all or any portion
\nof the rights and obligations under this Agreement or any Letter of credit shall
\nbe null and void in its entirety unless it strictly complies with this Section
\n7.06(b).<\/p>\n
(c) The Issuer may pledge any portion of its reimbursement rights with
\nrespect to the Letters of Credit thereof or interest therein to any Federal
\nReserve Bank as collateral in accordance with applicable law without the consent
\nof any Borrower.<\/p>\n
(d) In connection with any participation or proposed participation by
\nthe Issuer pursuant to this Section 7.06, the Issuer shall be entitled to
\ndistribute to any proposed Participant any information furnished to the Issuer
\npursuant to Section 5.01 or otherwise pursuant to this Agreement or in
\nconnection herewith, subject to the provisions of Section 7.18.<\/p>\n
SECTION 7.07 No Proceedings. (a) The Issuer hereby agrees (which
\nagreement shall, pursuant to the terms of this Agreement, be binding upon its
\nsuccessors and assigns) that it shall not, for any reason:<\/p>\n
32<\/p>\n
(i) institute proceedings for AFS Funding to be adjudicated a
\n bankrupt or insolvent;<\/p>\n
(ii) consent to, join in or cooperate with the institution
\n of bankruptcy or insolvency proceedings against AFS Funding;<\/p>\n
(iii) file a petition with respect to AFS Funding seeking or
\n consenting to reorganization or relief under any applicable Federal or
\n state law relating to bankruptcy;<\/p>\n
(iv) consent to the appointment of a receiver, liquidator,
\n assignee, trustee, sequestrator (or other similar official) of AFS Funding
\n or a substantial part of the property; or<\/p>\n
(v) cause or permit AFS Funding to make any assignment for the
\n benefit of its creditors, or admit in writing its inability to pay its
\n debts generally as they become due, or declare or effect a moratorium on
\n its debt or take any action in furtherance of any such action.<\/p>\n
(b) The provisions of this Section 7.07 shall survive the termination
\nof this Agreement.<\/p>\n
SECTION 7.08 Submission to Jurisdiction; Waivers. EACH OF THE PARTIES
\nHERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY:<\/p>\n
(a) SUBMITS FOR ITSELF AND ITS PROPERTY IN ANY LEGAL ACTION OR
\nPROCEEDING RELATING TO THIS AGREEMENT TO WHICH IT IS A PARTY, OR FOR RECOGNITION
\nAND ENFORCEMENT OF ANY JUDGMENT IN RESPECT THEREOF, TO THE NON-EXCLUSIVE GENERAL
\nJURISDICTION OF THE COURTS OF THE STATE OF NEW YORK AND THE UNITED STATES OF
\nAMERICA FOR THE SOUTHERN DISTRICT OF NEW YORK, AND APPELLATE COURTS FROM ANY
\nTHEREOF;<\/p>\n
(b) CONSENTS THAT ANY SUCH ACTION OR PROCEEDING MAY BE BROUGHT IN
\nSUCH COURTS AND WAIVES ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE
\nVENUE OF ANY SUCH ACTION OR PROCEEDING IN ANY SUCH COURT OR THAT SUCH ACTION OR
\nPROCEEDING WAS BROUGHT IN AN INCONVENIENT COURT AND AGREES NOT TO PLEAD OR CLAIM
\nTHE SAME;<\/p>\n
(c) AGREES THAT SERVICE OF PROCESS IN ANY SUCH ACTION OR PROCEEDING
\nMAY BE EFFECTED BY MAILING A COPY THEREOF BY REGISTERED OR CERTIFIED MAIL (OR
\nANY SUBSTANTIALLY SIMILAR FORM OF MAIL), POSTAGE PREPAID, TO SUCH PARTY AT ITS
\nADDRESS SET FORTH IN SECTION 7.02 OR AT SUCH OTHER ADDRESS OF WHICH THE ISSUER
\nSHALL HAVE BEEN NOTIFIED PURSUANT THERETO; AND<\/p>\n
(d) AGREES THAT NOTHING HEREIN SHALL AFFECT THE RIGHT TO EFFECT
\nSERVICE OF PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR SHALL LIMIT THE RIGHT
\nTO SUE IN ANY OTHER JURISDICTION.<\/p>\n
33<\/p>\n
SECTION 7.09 WAIVERS OF JURY TRIAL. EACH OF THE PARTIES HERETO HEREBY
\nIRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE EXTENT PERMITTED BY APPLICABLE
\nLAW, ANY RIGHT IT MAY HAVE TO TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING
\nRELATING DIRECTLY OR INDIRECTLY TO THIS AGREEMENT OR ANY OTHER DOCUMENT OR
\nINSTRUMENT RELATED HERETO AND FOR ANY COUNTERCLAIM THEREIN.<\/p>\n
SECTION 7.10 GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED IN
\nACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK, WITHOUT
\nGIVING EFFECT TO ITS CONFLICTS OF LAW PROVISIONS.<\/p>\n
SECTION 7.11 Execution in Counterparts. This Agreement may be executed
\nin any number of counterparts and by different parties hereto in separate
\ncounterparts, each of which when so executed shall be deemed to be an original
\nand all of which taken together shall constitute one and the same agreement.<\/p>\n
SECTION 7.12 Headings. The headings contained in this Agreement are
\nfor convenience of reference only and shall not affect the construction or
\ninterpretation of any provision of this Agreement.<\/p>\n
SECTION 7.13 Severability. Any provisions of this Agreement which are
\nprohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
\nbe ineffective to the extent of such prohibition or unenforceability without
\ninvalidating the remaining provisions hereof, and any such prohibition or
\nunenforceability in any jurisdiction shall not invalidate or render
\nunenforceable such provisions in any other jurisdiction.<\/p>\n
SECTION 7.14 Integration. All exhibits, schedules and appendices to
\nthis Agreement shall be deemed to be part of this Agreement. This Agreement,
\ntogether with provisions of the Transaction Documents referred to herein,
\nembodies the entire agreement and understanding among the parties hereto with
\nrespect to the subject matter hereof and supersedes all prior agreements and
\nunderstandings among such parties with respect to the subject matter hereof.<\/p>\n
SECTION 7.15 Right of Set-Off. In addition to any rights and remedies
\nof the Issuer provided by law, upon the occurrence of an Event of Default and
\nthe acceleration of the obligations owing hereunder, or at any time upon the
\noccurrence and during the continuance of an Event of Default under Section
\n6.01(a), and only under such circumstances, the Issuer shall have the right,
\nwithout prior notice to the Borrowers, any such notice being expressly waived by
\nthe Borrowers to the extent not prohibited by applicable law, to set-off and
\napply any and all deposits (general or special, time or demand, provisional or
\nfinal) of the Borrowers at any time held by the Issuer, and other indebtedness
\nof the Issuer at any time owing to the Borrowers, against any and all
\nindebtedness of the Borrowers to the Issuer (whether matured or unmatured) at,
\nor at any time after, the happening of any of the above-mentioned events. To the
\nextent not prohibited by applicable law, the aforesaid right of set-off may be
\nexercised by the Issuer against the Borrowers or against any trustee in
\nbankruptcy, custodian, debtor in possession, assignee for the benefit of
\ncreditors, receiver, or execution, judgment or attachment creditor of the
\nBorrowers, or against anyone else claiming through or against the Borrowers or
\nsuch trustee in bankruptcy, custodian, debtor in possession, assignee for<\/p>\n
34<\/p>\n
the benefit of creditors, receiver or execution, judgment or attachment
\ncreditor, notwithstanding the fact that such right of set-off shall not have
\nbeen exercised by the Issuer prior to the making, filing or issuance, or service
\nupon the Issuer of, or of notice, of any such petition, assignment for the
\nbenefit of creditors, appointment or application for the appointment of a
\nreceiver, or issuance of execution, subpoena, order or warrant. The Issuer
\nagrees promptly to notify the Borrowers after any such set-off and application
\nmade by the Issuer, provided that the failure to give such notice shall not
\naffect the validity of such set-off and application.<\/p>\n
SECTION 7.16 Limitation of liability. No claim may be made by the
\nBorrowers, or any other Person against the Issuer, or any directors, officers,
\nemployees or agents of the Issuer for any special, indirect, consequential or
\npunitive damages in respect of any claim for breach of contract or any other
\ntheory of liability arising out of or related to the transactions contemplated
\nhereby or by any Transaction Document, or any act, omission or event occurring
\nin connection therewith, and each Borrower hereby waives, releases and agrees
\n(on behalf of itself and any Person claiming by or through it) not to sue upon
\nany claim for any such damages, whether or not accrued and whether or not known
\nor suspected to exist in its favor.<\/p>\n
SECTION 7.17 No Recourse Against Certain Persons. No recourse under or
\nwith respect to any obligation, covenant or agreement (including any obligation
\nor agreement to pay fees or any other amount) of any Borrower, or the Issuer
\ncontained in this Agreement or any other agreement, instrument or document
\nentered into by it pursuant hereto or in connection herewith shall be had
\n(unless expressly assumed by such party) against any incorporator, affiliate,
\nstockholder, partner, officer, employee or director of any Borrower or the
\nIssuer, as such, by the enforcement of any assessment, by any legal or equitable
\nproceeding, by virtue of any statute or otherwise; it being expressly agreed and
\nunderstood that the agreements of each party contained in this Agreement and all
\nof the other agreements, instruments and documents entered into by it pursuant
\nhereto or in connection herewith are, in each case, solely the partnership or
\ncorporate obligations of such party, and that no personal liability whatsoever
\nshall attach to or be incurred by any incorporator, stockholder, partner,
\naffiliate, officer, employee or director of such party, as such, or any of them
\nunder or by reason of any of the obligations, covenants or agreements of any
\nBorrower or the Issuer contained in this Agreement or in any other such
\ninstrument, document or agreement, or which are implied therefrom, and that any
\nand all personal liability of every such incorporator, stockholder, partner,
\naffiliate, officer, employee or director of any Borrower or the Issuer for
\nbreaches by any Borrower or the Issuer of any such obligations, covenants or
\nagreements, which liability may arise either at common law or at equity, by
\nstatute or constitution, or otherwise, is hereby expressly waived as a condition
\nof and in consideration for the execution of this Agreement. The provisions of
\nthis Section 7.17 shall survive the termination of this Agreement.<\/p>\n
SECTION 7.18 Treatment of Certain Information. The Issuer agrees (on
\nbehalf of itself and each of its affiliates, directors, officers, employees and
\nrepresentatives) to use reasonable precautions to keep confidential, in
\naccordance with its customary procedures for handling confidential information
\nof the same nature, all non-public information supplied by any Borrower pursuant
\nto this Agreement which (a) is identified by such supplying party as being
\nconfidential at the time the same is delivered to the Issuer, or (b) constitutes
\nany financial statement, financial projections or forecasts, budget, compliance
\ncertificate, audit report, management letter or accountants’ certification
\ndelivered hereunder; provided, however, that nothing herein shall limit the
\ndisclosure of<\/p>\n
35<\/p>\n
any such information to the extent required by statute, rule, regulation or
\njudicial process, (ii) on a confidential basis, to counsel for the Issuer, (iii)
\nto bank examiners, internal and external auditors or accountants, and any
\nanalogous counterpart thereof acting in any such capacity, (iv) to the Issuer,
\n(v) in connection with any litigation to which the Issuer is a party, (vi) to
\nany assignee or participant (or prospective assignee or participant) so long as
\nsuch assignee or participant (or prospective assignee or participant) agrees to
\nkeep such information confidential on substantially the same basis as set forth
\nin this Section, or (vii) to affiliates of the Issuer. This confidentiality
\nagreement shall not apply to (i) any information which was in the possession of
\nthe Issuer prior to the date of this agreement (other than any information
\npreviously given to the Issuer by any Borrower, (ii) any information which was,
\nis or hereafter becomes part of the public domain without any violation of this
\nagreement on the part of the Issuer or any of its respective affiliates,
\ndirectors, officers, employees or representatives, (iii) any information
\nreceived by the of the Issuer from a source not known by it to be under any
\nobligation of confidentiality to any Borrower or (iv) any information which is
\nindependently created or developed by the Issuer from information or material
\nnot otherwise, covered by this confidentiality agreement.<\/p>\n
SECTION 7.19 Certain Payments. Notwithstanding provisions to the
\ncontrary contained in this Agreement, the obligations of the Borrowers to stake
\npayments of interest or other amounts which constitute interest shall not be
\nrequired to the extent that receipt of such payment by the Issuer would be
\ncontrary to the provisions of law applicable to the Issuer limiting the maximum
\nrate of interest that may be charged or collection by the Issuer. Without
\nlimiting the generality of he foregoing all calculations of the rate of interest
\ncontracted for, charged or received by the Issuer under this Agreement which are
\nmade for the purposes of determining whether such rate of interest exceeds the
\nmaximum rate of interest permitted by applicable law for the Issuer shall be
\nmade, to the extent permitted by applicable law, by amortizing, prorating,
\nallocating and spreading in equal parts during the period of the fi111 stated
\nterm of this Agreement, all interest at any time contracted for, charged or
\nreceived by the Issuer in connection with the indebtedness evidenced by this
\nAgreement, and then to the extent that any such excess remains, all such excess
\nshall be automatically credited against and in reduction of the principal
\nbalance owed to the Issuer, and any portion of said excess which exceeds the
\nprincipal balance owed to the Issuer shall be paid by the Issuer to the
\nBorrowers (subject to the provisions of Section 7.07 and 7.17, it being the
\nintent of parties hereto that under no circumstances shall the Borrowers be
\nrequired to pay any interest in excess of the highest rate permissible under
\napplicable law.<\/p>\n
SECTION 7.20 Joint and Several Liability. The obligations of the
\nBorrowers under this Agreement are joint and several.<\/p>\n
36<\/p>\n
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
\nexecuted by their respective officers thereunto duly authorized, as of the date
\nabove written.<\/p>\n
AMERICREDIT CORP.<\/p>\n
By: \/s\/ [ILLEGIBLE]
\n ————————————-
\n Title:__________________________________<\/p>\n
AMERICREDIT FINANCIAL SERVICES, INC.<\/p>\n
By: \/s\/ [ILLEGIBLE]
\n ————————————-
\n Title:__________________________________<\/p>\n
DEUTSCHE BANK AG, NEW YORK BRANCH,
\n as Issuer<\/p>\n
By: ____________________________________
\n Title:__________________________________<\/p>\n
By: ____________________________________
\n Title:__________________________________<\/p>\n
For purposes of Sections 2.02, 2.03,
\n 7.01 and 7.06(b) and Exhibit C only:<\/p>\n
FINANCIAL SECURITY ASSURANCE, INC.<\/p>\n
By: ____________________________________
\n Title:__________________________________<\/p>\n
[Signature Page to Letter of Credit and Reimbursement Agreement]<\/p>\n
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
\nexecuted by their respective officers thereunto duly authorized, as of the date
\nabove written.<\/p>\n
AMERICREDIT CORP.<\/p>\n
By: _________________________________
\n Title: ______________________________<\/p>\n
AMERICREDIT FINANCIAL SERVICES, INC.<\/p>\n
By: _________________________________
\n Title: ______________________________<\/p>\n
DEUTSCHE BANK AG, NEW YORK BRANCH,
\n as Issuer<\/p>\n
By: \/s\/ FRANK BYRNE
\n ———————————
\n Title: MANAGING DIRECTOR
\n ——————————<\/p>\n
By: [ILLEGIBLE]
\n ———————————-
\n Title: VP
\n ——————————-<\/p>\n
For purposes of Sections 2.02, 2.03, 7.01
\n and 7.06(b) and Exhibit C only:<\/p>\n
FINANCIAL SECURITY ASSURANCE, INC.<\/p>\n
By: _________________________________
\n Title: ______________________________<\/p>\n
[Signature Page to Letter of Credit and Reimbursement Agreement]<\/p>\n
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
\nexecuted by their respective officers thereunto duly authorized, as of the date
\nfirst above written.<\/p>\n
AMERICREDIT CORP.<\/p>\n
By: _________________________________
\n Title: ______________________________<\/p>\n
AMERICREDIT FINANCIAL SERVICES, INC.<\/p>\n
By: _________________________________
\n Title: ______________________________<\/p>\n
DEUTSCHE BANK AG, NEW YORK BRANCH,
\n as Issuer<\/p>\n
By: _________________________________
\n Title: ______________________________<\/p>\n
By: _________________________________
\n Title: ______________________________<\/p>\n
For purposes of Sections 2.02, 2.03, 701 and
\n 7.06(b) and Exhibit C only:<\/p>\n
FINANCIAL SECURITY ASSURANCE, INC.<\/p>\n
By: [ILLEGIBLE]
\n ———————————
\n Title: ______________________________<\/p>\n
[Signature Page to Letter of Credit and Reimbursement Agreement]<\/p>\n
EXHIBIT A<\/p>\n
FORM OF IRREVOCABLE LETTER OF CREDIT<\/p>\n
EXHIBIT B<\/p>\n
LIST OF SERIES TRANSACTION DOCUMENTS<\/p>\n
[SEE ATTACHED]<\/p>\n
EXHIBIT C<\/p>\n
COLLATERAL AND REINSURANCE<\/p>\n
AS OF MAY 6, 2002 DISTRIBUTION DATE<\/p>\n
\n\n———————————————————————————————
\nSeries Original Collateral Balance Letter of Credit\/1\/ Letter of Credit or FSA
\n Reinsurance Amounts Reinsurance
\n———————————————————————————————
\n
\n1998-C $ 575,000,000 $ 0
\n1998-D 625,000,000 0
\n1999-A 700,000,000 0
\n1999-B 1,000,000,000 0
\n1999-C 1,000,000,000 0
\n1999-D 900,000,000 0
\n2000-A 1,300,000,000 0
\n2000-B 1,200,000,000 0
\n2000-C 1,100,000,000 0
\n2000-D 600,000,000 0
\n2001-A 1,400,000,000 7,434,265 FSA Reinsurance
\n2001-B 1,850,000,000 62,850,965 Letter of Credit
\n2001-C 1,600,000,000 79,999,946 FSA Reinsurance
\n2001-D 1,800,000,000 90,000,000 Letter of Credit
\n2002-A 1,600,000,000 79,999,983 FSA Reinsurance
\n———————————————————————————————
\nTotal\/2\/ $17,250,000,000 $ 320,285,159
\n———————————————————————————————
\n<\/c><\/c><\/c><\/s><\/caption>\n<\/table>\n_____________________
\n1 This column also indicates the priority of draws with the requirement that
\n the newest transaction (2002-B) be drawn before 2002-A, and 2002-A be drawn
\n before 200l-D, etc.<\/p>\n
2 Additionally, the Series 2002-B transaction will close in June 2002, and
\n this transaction has the following characteristics:<\/p>\n
Original Collateral Balance: $1,200,000,000
\n FSA Reinsurance Amount: $60,000,000 (when the transaction has been fully
\n funded)<\/p>\n
2<\/p>\n
APPENDIX A<\/p>\n
CERTAIN DEFINITIONS<\/p>\n
Capitalized terms used in this Agreement shall have the following
\nmeanings:<\/p>\n
“ACC”: The meaning specified in the Preamble.<\/p>\n
“ACC Portfolio Charge-Off Ratio”: As of the end of any fiscal quarter
\nof ACC, the ratio, expressed as a percentage, of (a) the product of 4 and the
\nnet amount of charge-offs in its serviced portfolio during such fiscal quarter
\nto (b) the daily average principal amount of receivables in its serviced
\nportfolio during such fiscal quarter.<\/p>\n
“Accountants’ Report”: The meaning specified in Section 5,0l(a)(iii).<\/p>\n
“ACFS”: The meaning specified in the Preamble.<\/p>\n
“Affiliate”: With respect to any Person, any Person directly or
\nindirectly controlling controlled by, or under common control with, such former
\nPerson. As used in this definition of “Affiliate,” the term “control” means the
\npossession, directly or indirectly, of the power to direct or cause the
\ndirection of the management and policies of a Person, whether through ownership
\nof voting securities, by contract or otherwise.<\/p>\n
“AFS Funding”: The meaning specified in the recitals.<\/p>\n
“Agreement”: This Letter of Credit Reimbursement Agreement, as it may
\nbe amended, modified, restated or supplemented from time to time.<\/p>\n
“Authorized Officer”: With respect to any non-natural Person, any
\nOfficer of such Person who is authorized to act for such Person with respect to
\nthe relevant matter in question.<\/p>\n
“Available Enhancement Amount”: With respect to any Letter of Credit,
\nthe sum of (a) the amount in the Spread Account for the related Notes, (b) the
\nOC Amount, if any, and (c) the Maximum Stated Amount of such Letter of Credit
\nor, if such Letter of Credit has been cash collateralized, the amount of cash
\ncollateral on deposit in respect thereof pursuant to Section 2.02(f).<\/p>\n
“Available Stated Amount”: With respect to any Letter of Credit at any
\ndate of determination, Maximum Stated Amount thereof at such date, minus the
\namount of all unreimbursed drawings under such Letter of Credit.<\/p>\n
“Bankruptcy Code”: Title 11 of the United States Code (11 U.S.C.
\nSection 101, et seq.), as amended from time to time, or any successor statute.<\/p>\n
“Borrowers”: The meaning specified in the Preamble.<\/p>\n
“Business Day”: Any day other than (i) a Saturday or Sunday and (ii)
\nany other day on which banks are authorized or required to close in New York
\nCity, Texas or Ohio.<\/p>\n
“Cash Equivalents”: Book-entry securities, negotiable instruments or
\nsecurities represented by instruments in bearer or registered from which
\nevidence:<\/p>\n
(a) direct obligations of, and obligations fully Guaranteed as to
\ntimely payment by, the United States of America;<\/p>\n
(b) demand deposits, time deposits or certificates of deposit of any
\ndepository institution or trust company incorporated under the laws of the
\nUnited States of America or any state thereof or the District of Columbia (or
\nany domestic branch of a foreign bank) and subject to supervision and
\nexamination by federal or state banking or depository institution authorities
\n(including depository receipts issued by any such institution or trust company
\nas custodian with respect to any obligations referred to in clause (a) above or
\nportion of such obligations for the benefit of the holders of such depository
\nreceipts); provided, however, that at the time of the investment or contractual
\ncommitment to invest therein (which shall be deemed to be made again each time
\nfunds are reinvested following each Distribution Date), the commercial paper or
\nother short-term senior unsecured debt obligations (other than such obligations
\nthe rating of which is based on the credit of a Person other than such
\ndepository institution or trust company) of such depository institution or trust
\ncompany shall have a credit rating from Standard & Poor’s of A-1 and from
\nMoody’s of P-1;<\/p>\n
(c) commercial paper and demand notes investing solely in commercial
\npaper having, at the time of the investment or contractual commitment to invest
\ntherein, a rating from Standard & Poor’s A-1 and from Moody’s of P-1;<\/p>\n
(d) investments in money market funds having a rating from Standard & Poor’s of AAA-m or AAAm-G and from Moody’s of Aaa and having been approved by
\nthe Issuer.<\/p>\n
(e) bankers’ acceptances issued by any depository institution or trust
\ncompany referred to in clause (b) above; and<\/p>\n
(f) repurchase obligations with respect to any security that is a
\ndirect obligation of, or fully Guaranteed by, the United States of America or
\nany agency or instrumentality thereof of obligations of which are backed by the
\nfull faith and credit of the United States of America, in either case entered
\ninto with a depository institution or trust company (acting as principal)
\nreferred to in clause (b) above;<\/p>\n
provided that (i) for purposes of Section 2.02(f), “Cash Equivalents” shall also
\ninclude any other investment which has been approved by the Issuer and the FSA
\nSeries Insurer and (ii) for purposes of Section 6.02(e), “Cash Equivalents”
\nshall also include time deposits maintained with Deutsche Bank AG and any other
\ninvestment agreed to by the Borrowers and the Issuer.<\/p>\n
“Code”: The Internal Revenue Code of 1984, as amended.<\/p>\n
“Controlling Party”: The meaning specified in the applicable Series
\nTransaction Documents.<\/p>\n
“Debt”: At any date with respect to any Person, without duplication:
\n(i) all obligations of such Person for borrowed money; (ii) all obligations of
\nsuch Person evidenced by bonds, debentures, notes or other similar instruments;
\n(iii) all obligations of such Person to pay the deferred purchase<\/p>\n
2<\/p>\n
price of property or services, except trade accounts payable arising in the
\nordinary course of business; (iv) all obligations of such Person as lessee under
\ncapital leases; (v) all non-contingent obligations of such Person to reimburse
\nor prepay any bank or other Person in respect of amounts paid under a letter of
\ncredit, banker’s acceptance or similar instrument; (vi) all Debt of others
\nsecured by a Lien on any asset of such Person, whether or not such Debt is
\nassumed by such Person; and (vii) all Debt of others Guaranteed by such Person.<\/p>\n
“Debtor Relief Laws”: The Bankruptcy Code and all other applicable
\nliquidation, conservatorship, bankruptcy, moratorium, rearrangement,
\nreceivership, insolvency, reorganization, suspension of payments, readjustment
\nof debt, marshaling of assets or similar debtor relief laws of the United
\nStates, any state or any foreign country from time to time in effect, affecting
\nthe rights of creditors generally.<\/p>\n
“Default”: Any Event of Default or any occurrence that is, or with notice
\nor the lapse of time or both would become, an Event of Default.<\/p>\n
“Designated Series”: The meaning specified in the recitals.<\/p>\n
“Designated Series Amortization Date”: With respect to any drawing under a
\nLetter of Credit, the Distribution Date of the 26\/th\/ consecutive calendar month
\nfollowing the month of the closing of the applicable Series.<\/p>\n
“Distribution Date”: The sixth day of each calendar month, or, if such day
\nis not a Business Day, the immediately following Business Day; provided, that
\nsuch day shall in no event be earlier than the third Business Day of such
\ncalendar month.<\/p>\n
“Dollar” or “$”: A dollar or other equivalent unit in such coin or
\ncurrency of the United States as at the time shall be legal tender for all
\ndebts, public and private.<\/p>\n
“Effective Date”: The date on which the conditions specified in Section
\n3.01 shall have been satisfied.<\/p>\n
“ERISA”: The U.S. Employee Retirement Income Security Act of 1974, as
\namended from time to time, and the regulations promulgated and rulings issued
\nthereunder.<\/p>\n
“ERISA Affiliate”: Any Person who for purposes of Title IV of ERISA is a
\nmember of a Borrower’s controlled group, or under common control with such
\nBorrower, within the meaning of Section 414 of the Code, and the regulations
\npromulgated and rulings issued thereunder.<\/p>\n
“Event of Default”: The meaning specified in Section 6.01.<\/p>\n
“Event of Early Amortization”: Any of the following:<\/p>\n
(a) the long term senior unsecured debt of ACC is rated by any of S&P,
\nFitch or Moody’s at or below B-, B- or B3 respectively; or<\/p>\n
3<\/p>\n
(b) any trigger event, facility termination event, early amortization
\neven servicer termination event or event of default or other similar event by
\nany other name shall occur under any Series insured by the FSA Series Insurer or
\nother insurer (whether or not declared, waived or consented to by the relevant
\ntrustee, the FSA Series Insurer, the relevant trust or the holders of such
\nSeries) and any grace period or cure period set forth in the Series Transaction
\nDocuments for such FSA Series shall have expired, provided that a trigger event
\nshall not constitute an Event of Early Amortization if(i) FSA waives such
\ntrigger event, (ii) the aggregate outstanding principal amount of all such
\nSeries is less than or equal to 15Oh of the aggregate outstanding principal
\namount of all the Series insured by the FSA Series Insurer (including any
\noutstanding Prefunded Amounts (as defined in the applicable Series Transaction
\nDocuments for such Series)), (iii) the amount on deposit in the Spread Account
\nfor such Series is not less than the amount required to be on deposit therein
\npursuant to the terms of the related Series Transaction Documents for such
\nSeries and (iv) the amount of overcollateralization for such Series is not less
\nthan the amount of overcollateralization required pursuant to the terms of the
\nrelated Series Transaction Documents for such Series; or<\/p>\n
(c) total delinquencies of 60 days or more and repossessed assets in
\nACFS’s serviced portfolio exceeds 4.5% of such portfolio determined at the end
\nof any fiscal month of ACFS; or<\/p>\n
(d) the ACC Portfolio Charge-Off Ratio as of the end of any of its
\nfiscal quarters exceeds 7.5%.<\/p>\n
“Excess”: With respect to any Loss Protection and any other Loss
\nProtection, that such Loss Protection shall not be drawn upon, paid, deducted
\nfrom or otherwise applied to obligations, losses or potential losses, until such
\nother Loss Protection has been fully drawn, fully paid, deducted in full or
\notherwise fully applied to obligations, losses or potential losses and, with
\nrespect to any specified source of Indemnification, that such Loss Protection
\nshall be filly indemnified or otherwise made whole under the terms of such Loss
\nProtection from such source of Indemnification before any reimbursement,
\nindemnification, repayment or recovery from such source of Indemnftications paid
\nor applied to such other Loss Protection,<\/p>\n
“Excluded Taxes”: The meaning specified in Section 2.07(a).<\/p>\n
“Expiry Date”: The meaning specified in Section 2.02(f).<\/p>\n
“Facility Maturity Date”: The earliest of (a) the latest Scheduled
\nExpiry Date for a Letter of Credit, (b) the date on which the Issuer requires
\nthe delivery of cash collateral with respect to the Letters of Credit pursuant
\nto Section 6.02, and (c) the occurrence of an Insolvency Event with respect to
\nAFS Funding or any Borrower.<\/p>\n
“Federal Funds Rate”: For any day, a fluctuating interest rate per
\nannum equal to the weighted average of the rates on overnight Federal finds
\ntransactions with members of the Federal Reserve System arranged by Federal
\nfunds transactions with members of the Federal Reserve System arranged by
\nFederal funds brokers, as published for such day (or, if such day is not a
\nBusiness Day, for the next preceding Business Day) by the Federal Reserve Bank
\nof New York or, if such rate is not so published for any day which is a Business
\nDay, the average of the quotations for such day for<\/p>\n
4<\/p>\n
such transactions received by the Issuer from three Federal funds brokers of
\nrecognized standing selected by it.<\/p>\n
“Fee Letter”: The Fee Letter, dated as of June 7, 2002, among the
\nBorrowers and the Issuer, as such document may be amended, modified, restated or
\nsupplemented from time to time.<\/p>\n
“Fitch”: Fitch IBCA, Inc., and its successors.<\/p>\n
“FSA”: Financial Security Assurance Inc., a New York stock insurance
\ncompany.<\/p>\n
“FSA Series”: The meaning specified in the recitals.<\/p>\n
“FSA Series Amount Available”: With respect to any Distribution Date
\nand any FSA Series, the FSA Series Spread Account Principal Release for such FSA
\nSeries for such Distribution Date.<\/p>\n
“FSA Series Insurer”: With respect to any FSA Series, FSA in its
\ncapacity as the insurance company insuring the repayment of such FSA Series.<\/p>\n
“FSA Series Spread Account”: When used in the singular, any of, and
\nwhen used in the plural, all of, the spread accounts established with respect to
\nan FSA Series.<\/p>\n
“FSA Series Spread Account Principal Release”: With respect to any
\nDistribution Date and any FSA Series, any amounts paid or payable to AFS Funding
\nfrom amounts on deposit in the related FSA Series Spread Account since the prior
\nDistribution Date.<\/p>\n
“FSA Series Servicer”: The meaning specified in Section 5.01.<\/p>\n
“GAAP”: At any particular time with respect to the Borrowers, U.S.
\ngenerally accepted accounting principles as in effect at such time, consistently
\napplied.<\/p>\n
“Governmental Authority”: Any nation or government, any state or other
\npolitical subdivision thereof and any entity exercising executive, legislative,
\njudicial, regulatory or administrative functions of or pertaining to government.<\/p>\n
“Guarantee”: By any Person, any obligation, contingent or otherwise, of
\nsuch Person directly or indirectly guaranteeing any Debt or other obligation of
\nany other Person and, without limiting the generality of the foregoing, any
\nobligation, direct or indirect, contingent or otherwise, of such person (i) to
\npurchase or pay (or advance or supply funds, for the purchase or payment of)
\nsuch Debt or other obligation (whether arising by virtue of partnership
\narrangements, by agreement to keep-well, to purchase assets, goods, securities
\nor services, to take-or-pay, or to maintain financial statement conditions or
\notherwise) or (ii) entered into for the purpose of assuring in any other manner
\nthe obligee of such Debt or other obligation of the payment thereof or to
\nprotect such obligee against loss in respect thereof (in whole or in part);
\nprovided, that the term “Guarantee” shall not include endorsements for
\ncollection or deposit in the ordinary course of business. The term “Guarantee”
\nused as a verb has a corresponding meaning.<\/p>\n
5<\/p>\n
“Indemnification”: With respect to any Loss Protection, indemnification
\nreimbursement, repayment, recovery or any other right of the provider of such
\nLoss Protection to be made whole and held harmless in respect of its obligations
\nunder such Loss Protection.<\/p>\n
Indemnified Party”: The meaning specified in Section 7.04.<\/p>\n
“Independent Accountants”: The meaning specified in Section 5.01 (a)
\n(iii).<\/p>\n
“Insolvency Event”: With respect to a Person, such Person shall fail
\ngenerally to, or admit in writing its inability to, pay its debts as they become
\ndue; or a proceeding shall have been instituted in a court having jurisdiction
\nin the premises seeking a decree or order for relief in respect of such Person
\nin an involuntary case under any Debtor Relief Law, or for the appointment of a
\nreceiver, liquidator, assignee, trustee, custodian, sequestrator, conservator or
\nother similar official of such Person or for any substantial part of its
\nproperty, or for the winding-up or liquidation of its affairs and, if instituted
\nagainst such Person, any such proceeding shall continue undismissed or unstayed
\nand in effect for a period of 60 consecutive days or any of the actions sought
\nin such proceeding shall occur; or the commencement by such Person of a
\nvoluntary case under any Debtor Relief Law, or such Person’s consent to the
\nentry of any order for relief in an involuntary case under any Debtor Relief
\nLaw, or consent to the appointment of or taking possession by a receiver,
\nliquidator, assignee, trustee, custodian, sequestrator, conservator or other
\nsimilar official of such Person or for any substantial part of its property, or
\nany general assignment for the benefit of creditors; or such Person shall have
\ntaken any corporate, partnership or similar action in furtherance of any of the
\nforegoing actions.<\/p>\n
“Insurance Agreement Event of Default”: The meaning specified in the
\napplicable Series Transaction Documents.<\/p>\n
“Insured Distribution Date”: The meaning specified in the applicable
\nSeries Transaction Documents.<\/p>\n
“Investment Company Act”: The United States Investment Company Act of
\n1940, as amended.<\/p>\n
“IRS”: The U.S. Internal Revenue Service and any successor agency.<\/p>\n
“Issuer”: The meaning specified in the Preamble.<\/p>\n
“Letters of Credit”: The meaning specified in Section 2.0l(a).<\/p>\n
“LIEN”: With respect to any asset, any mortgage, pledge, hypothecation,
\nassignment, deposit arrangement, encumbrance, lien (statutory or other),
\npreference, priority, security agreement or preferential arrangement of any kind
\nor nature whatsoever (including any conditional sale or other title retention
\nagreement relating to such asset).<\/p>\n
“LOC Disbursement”: The meaning specified in Section 2.02(c).<\/p>\n
“LOC Termination Disbursement”: The meaning specified in Section
\n2.02(d).<\/p>\n
6<\/p>\n
“Loss Protection”: Any reinsurance, any source of reimbursement or
\nindemnity, any guaranty, surety bond, letter of credit, cash collateral account,
\nspread account or other pledged account, any subordinate security or other
\nsubordinate interest, any other credit enhancement and any other agreement or
\naccommodation that has the effect, directly or indirectly, of protecting FSA
\nfrom incurring a loss with respect to FSA’s obligations under any Policy.<\/p>\n
“Material Adverse Effect”: (i) A material adverse effect on the
\nfinancial condition, operations or business of any Borrower, (ii) a material
\nadverse effect on the ability or right of (x) any Borrower to perform its
\nobligations under this Agreement or any other Transaction Document or (y) AFS
\nFunding to perform its obligations under any Series Transaction Document
\nrelating to anFSA Series, or (iii) any impairment of the ability or right of the
\nIssuer to enforce this Agreement or any other Transaction Document.<\/p>\n
“Maximum Enhancement Amount”: With respect to any Letter of Credit, the
\nlesser of (a) the sum of the Requisite Amount (as defined in the applicable
\nSeries Transaction Documents) and the OC Amount, if any, with respect to the
\nrelated Notes, or (b) 12% (25%, if a Trigger Event shall have occurred and be
\ncontinuing) of the sum of the Aggregate Principal Balance and the Pre-Funded
\nAmount, if any (as each such term is defined in the applicable Series
\nTransaction Documents), with respect to the related Notes.<\/p>\n
“Maximum Stated Amount”: With respect to any Letter of Credit at any
\ntime, the maximum aggregate amount then reflected in such Letter of Credit as
\nthe amount that may be drawn thereunder.<\/p>\n
“Moody’s”: Moody’s Investors Service, Inc., and any successor thereto.<\/p>\n
“Nonallocated Amount Available”: With respect to any Distribution Date,
\nall amounts paid or payable to AFS Funding since the prior Distribution Date
\nwith respect to all FSA Series, including amounts released from the related
\nSpread Accounts during such period, and all fees or other remuneration payable
\nto AFS Funding pursuant to the Series Transaction Documents for any FSA Series
\nand all property or monies deliverable to AFS Funding upon termination of any
\nFSA Series.<\/p>\n
“Notes”: The asset-backed notes and asset-backed certificates issued in
\nconnection with a Series.<\/p>\n
“NYUCC”: The Uniform Commercial Code as in effect from time to time in
\nthe State of New York.<\/p>\n
“OC Amount”: With respect to any Letter of Credit, the OC Level (as
\ndefined in the applicable Series Transaction Documents), if any, for the related
\nNotes of the related Designated Series times the sum of the Aggregate Principal
\nBalance and the Pre-Funded Amount, if any (as each such term is defined in the
\napplicable Series Transaction Documents), for the related Notes.<\/p>\n
“Officer”: With respect to any Borrower, the Chairman of the Board
\nof Directors, any Vice Chairman, any Director, the President, any Vice
\nPresident, the Secretary, an Assistant Secretary, the Treasurer or an Assistant
\nTreasurer of such Borrower.<\/p>\n
7<\/p>\n
“Officer’s Certificate”: With respect to any Person, a certificate
\nsigned by an Authorized Officer of such Person.<\/p>\n
“Opinion of Counsel”: A written opinion of counsel who, except as
\notherwise expressly provided in this Agreement, may be counsel to the Borrowers,
\nand who shall be acceptable to the Issuer.<\/p>\n
“Participant”: The meaning specified in Section 7,06(b).<\/p>\n
“Permitted Lien”: A Lien which is permitted by Section 5.02a).<\/p>\n
“Person”: Any individual, corporation, partnership, joint venture,
\nassociation, limited liability company, joint stock company, trust (including
\nany beneficiary thereof) or any other entity, unincorporated organization or
\ngovernment or any agency or political subdivision thereof.<\/p>\n
“Plan”: Any employee benefit plan as defined in Section 3(3) of ERISA
\nin respect of which any Borrower or any ERISA Affiliate is, or within the
\nimmediately preceding six years was, an “employer” as defined in Section 3(5)
\nof ERISA, and in respect of which the Borrower or an ERISA Affiliate could have
\nliability under Title IV of ERISA.<\/p>\n
“Policy”: Any Financial Guaranty Insurance Policy issued in connection
\nwith an FSA Series.<\/p>\n
“Policy Payments”: Without duplication, the sum of (i) amounts payable
\nby FSA under any of the Policies and (ii) court costs, interest upon judgments,
\nand allocated investigation, adjustment and legal expenses, including expenses
\nrelated to the workout of a potential loss or the protection and perfection of
\nany subrogation or salvage rights or security interest under a Policy; provided
\nthat “Policy Payments” shall not include (a) salaries paid to employees of FSA,
\n(b) awards or judgments aginst FSA occasioned by failure of FSA to settle a
\nclaim or make payment under a Policy, when such failure arises from bad faith,
\nnegligence or misconduct on the part of FSA or any agent or employee of FSA or
\n(c) liability of FSA, arising by contract, operation of law or otherwise, from
\nits participation or membership, whether voluntary or involuntary, in any
\ninsolvency fund, including any guaranty fund, association, pool, plan or other
\nfacility that provides for the assessment of, payment by or assumption by FSA of
\na part or the whole of any claim, debt, charge, fee or other obligation of any
\ninsurer, or its successor or assigns, that has been declared insolvent by any
\nauthority having jurisdiction, or which is otherwise unable to meet any claim,
\ndebt, charge, fee or other obligation in whole or in part; and provided,
\nfurther, that “Policy Payments” shall include reasonably incurred expenses paid
\nby FSA to Transaction Services Corporation, an affiliate of FSA, so long as such
\nexposes are allocated to the related Policy on a cost basis.<\/p>\n
“Qualified Subsequent Reinsurance”: (i) Any Spread Account Replacement
\nReinsurance, as defined in clause (i) of the definition thereof, having a limit
\nof liability, scope of coverage and other terms substantially the same in all
\nmaterial respects as the corresponding terms of the Letters of Credit and (ii)
\nany Spread Account Replacement Reinsurance, as defined in clause (ii) of the
\ndefinition thereof, which amortizes and terminates on the same basis as cash
\nwould have been released from the related Spread Account had the cash not been
\nreplaced in such Spread Account.<\/p>\n
“Rating Agency”: Each of Fitch, Moody’s and S&P.<\/p>\n
8<\/p>\n
“Recourse Limit”: The remainder of (a) $l00,000,000 (or the aggregate
\nMaximum Stated Amount for all Letters of Credit, if such aggregate Maximum
\nStated Amount is less than $l00,000,000) minus (b) any amounts (other than
\namounts calculated by reference to the Nonallocated Amount Available) previously
\npaid by the Borrowers to the Issuer hereunder with respect to the Recourse
\nLimit.<\/p>\n
“Regulatory Change”: With respect to the Issuer, any change occurring
\nafter the date of this Agreement; or in the case of a Participant, any change
\noccurring after the date on which its participation became effective, or in the
\ncase of an Indemnified Party, any change occurring after the date it became such
\nan Indemnified Party, in any (or the adoption after such date of any new):<\/p>\n
(i) United States Federal or state law or foreign law applicable to the
\nIssuer, or such Indemnified Party; or<\/p>\n
(ii) regulation interpretation, directive, guideline or request
\n(whether or not having the force of law) applicable to the Issuer or Indemnified
\nParty of any court or other judicial authority or any Governmental Authority
\ncharged with the interpretation or administration of any law referred to in
\nclause (i) or of any fiscal, monetary or other authority or central bank having
\njurisdiction over the Issuer or Indemnified Party.<\/p>\n
“Repayment Amount”: With respect to any Letter of credit, the sum
\n(without duplication) of the principal amount of drawings under such Letter of
\nCredit (or cash collateral therefor, as applicable) and interest on such
\ndrawings and other amounts owing to the Issuer hereunder.<\/p>\n
“S&P”: Standard & Poor’s Ratings Group, and any successor thereto.<\/p>\n
“Scheduled Expiry Date”: The meaning specified in Section 2.01(a).<\/p>\n
“Series”: An FSA Series and\/or a Designated Series, as the context may
\nrequire<\/p>\n
“Series Transaction Documents”: With respect to any Series, the pooling
\nand servicing agreement (or equivalent document by any other name), sale and
\nservicing agreement, indenture, insurance and indemnity agreement, and
\nsupplement to the Spread Account Agreement.<\/p>\n
“SPE”: The meaning specified in Section 2.02(f).<\/p>\n
“SPE Loan”: The meaning specified in Section 2.02(f).<\/p>\n
“Spread Account”: When used in the singular, any of and when used in
\nthe plural, a11 of the spread accounts established with respect to an FSA
\nSeries.<\/p>\n
“Spread Account Agreement”: That certain Spread Account Agreement,
\ndated as of May 11, 1998, among AFS Funding, FSA, Lasalle National Bank, Harris
\nTrust and Savings Bank and Bank One, N.A., as amended, restated, modified or
\nsupplemented from time to time.<\/p>\n
“Spread Account Depositor”: AFS Funding Trust, a Delaware business
\ntrust.<\/p>\n
9<\/p>\n
“Spread Account Replacement Reinsurance”: (a) Any policy of reinsurance
\nissued by a third party insurance company for the benefit of FSA (i) which
\npermits the amount of the initial deposit to a Spread Account to be less than
\nthat which would have otherwise been required by FSA in connection with the
\nissuance of the related FSA Series in the absence of such policy or (ii) which
\nis in the form of recourse reduction reinsurance (i.e., substitution of
\nreinsurance for cash currently on deposit in one or more spread accounts for any
\nFSA Series of Notes) that has terms (other than pricing terms) substantially the
\nsame as the recourse reduction reinsurance in force on the date of this
\nAgreement or (b) any letter of credit, cash-collateralized loan or similar
\ninstrument obtained for the purpose described in clause (i) above and approved
\nin writing for such purpose by FSA.<\/p>\n
“Spread Account Shortfall”: The meaning specified in the Spread Account
\nAgreement.<\/p>\n
“Standard Termination Date”: The meaning specified in Section 202 (g).<\/p>\n
“Subsequent Reinsurance”: With respect to any Letter of Credit, any
\nSpread Account Replacement Reinsurance if such Spread Account Replacement
\nReinsurance has an effective date after the closing date of the applicable FSA
\nSeries without giving effect to any termination, cancellation or reduction
\n(except pursuant to Section 2.02(b)(iv) by FSA of such Spread Account
\nReplacement Reinsurance or to any default by any insurer in respect of its
\nobligations with respect to any such Spread Account Replacement Reinsurance.<\/p>\n
“Subsidiary”: As to a Person, another Person, a majority of the
\noutstanding voting stock of which is owned, directly or indirectly, by such
\nPerson or by one or more other Subsidiaries of such Person. For the purposes of
\nthis definition, “voting stock” of a Person means shares, interests,
\nparticipations or other equivalents (however designated) of such Person’s equity
\nhaving voting power for the election of directors, managers or other voting
\nmembers of the governing body of such Person.<\/p>\n
“Swap Transaction”: (i) Any rate, basis, commodity, currency, debt or
\nequity swap; (ii) any cap, collar or floor agreement; (iii) any rate, basis,
\ncommodity, currency, debt or equity futures or forward agreement; (iv) any rate,
\nbasis, commodity, currency, debt or equity option representing an obligation to
\nbuy or sell a security, commodity, currency, debt or equity; and (v) any other
\nsimilar agreement.<\/p>\n
“Taxes”: The meaning specified in Section 2.07(a).<\/p>\n
“Transaction Documents”: This Agreement and all notes, security
\nagreements, instruments, documents and other agreements (including UCC financing
\nstatements) heretofore, now or hereafter executed and\/or delivered by or on
\nbehalf of the Borrowers in connection with this Agreement, in each case, as the
\nsame may be amended, supplemented or otherwise modified.<\/p>\n
“Trigger Event”: With respect to an FSA Series, the meaning specified
\nin the applicable Series Transaction Documents.<\/p>\n
“Trust Agreement”: The Amended and Restated Trust Agreement, dated as
\nof October 19, 1999, between AFS Funding and Bankers Trust (Delaware), as owner
\ntrustee, as the same may be amended, supplemented or otherwise modified from
\ntime to time.<\/p>\n
10<\/p>\n
“2000-D Scheduled Expiry Date”: The meaning specified in Section 2,01(a).<\/p>\n
“2001-B Scheduled Expiry Date”: The meaning specified in Section 2.01(a).<\/p>\n
“2001-D Scheduled Expiry Date”: The meaning specified in Section 2.01(a).<\/p>\n
“Underlying Transactions”: With respect to any FSA Series, all
\ntransactions anticipated by the Series Transaction Documents for such FSA
\nSeries.<\/p>\n
“Underlying Trust”: In the singular any of the trusts established in
\nconnection with the Underlying Transactions and in the plural, all of such
\ntrusts.<\/p>\n
“Underlying Trustees”: The trustees, trust collateral agents or collateral
\nagents, in the Underlying Transactions and any other trustee designated with
\nrespect to the Underlying Transactions.<\/p>\n
“Uniform Commercial Code”: The Uniform Commercial Code as in effect in
\neach relevant jurisdiction.<\/p>\n
“United States” and “U.S.”: The United States of America<\/p>\n
“U.S. Government Securities”: Securities that are direct obligations of,
\nand obligations the timely payment of principal and interest on which is fully
\nGuaranteed by, the United States of America or any agency or instrumentality of
\nthe United States of America the obligations of which are backed by the full
\nfaith and credit of the United States of America and in the form of conventional
\nbills, bonds and notes. In no event shall U.S. Government Securities include:
\n(i) any security providing for the payment of interest only; (ii) any Swap
\nTransaction; or (iii) any obligation on which all or any portion of the payments
\nthereunder are based, directly or indirectly, on any Swap Transaction.<\/p>\n
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