\nEXHIBIT A Form of Assignment and Assumption Agreement A-1
\nEXHIBIT B Form of Initial Funding Request B-1
\nEXHIBIT C Form of Subsequent Funding Notice C-1
\nEXHIBIT D Form of Note D-1<\/p>\n<\/c><\/c><\/s><\/table>\n
ii<\/p>\n
NOTE PURCHASE AGREEMENT<\/p>\n
NOTE PURCHASE AGREEMENT (this “AGREEMENT”), dated as of
\nSeptember 30, 1999, among KITTY HAWK FUNDING CORPORATION, a Delaware
\ncorporation, as lender (together with its successors and assigns, the
\n“COMPANY”), AMERICREDIT BOA TRUST, a Delaware business trust, as borrower
\n(together with its successors and assigns, the “ISSUER”) and BANK OF AMERICA,
\nN.A., a national banking association (“BANK OF AMERICA”), as agent for the
\nCompany and the Bank Investors (in such capacity, together with its
\nsuccessors, the “AGENT”), as administrative agent for the Company (the
\n“Administrative Agent”) and as a Bank Investor.<\/p>\n
W I T N E S S E T H :<\/p>\n
WHEREAS, subject to the terms and conditions of this
\nAgreement and the Security Agreement, the Issuer desires to obtain funds from
\nthe Company or the Bank Investors, as applicable, and to evidence the
\nobligation to repay such amounts, together with interest thereon, through the
\nissuance of the Note;<\/p>\n
WHEREAS, pursuant to the Security Agreement, the Issuer
\nwill pledge to the Collateral Agent for the benefit of the Secured Parties
\nits interest in the Collateral, including the Issuer’s security interest in
\nthe Contracts;<\/p>\n
NOW THEREFORE, the parties hereto agree as follows:<\/p>\n
ARTICLE I<\/p>\n
DEFINITIONS<\/p>\n
Section 1.1. DEFINITIONS. All capitalized terms used herein
\nand not otherwise defined herein shall have the meanings specified in
\nthe Security Agreement. The following terms shall have the meanings
\nspecified below, and shall include in the singular number the plural and in
\nthe plural number the singular:<\/p>\n
“ADMINISTRATIVE AGENT” shall mean Bank of America,
\nN.A., as administrative agent for the Company.<\/p>\n
“AGENT” means Bank of America, N.A., in its capacity as
\nagent for the Company and the Bank Investors, and any successor thereto
\nappointed pursuant to Article V of this Agreement.<\/p>\n
“AGREEMENT” shall mean this Note Purchase Agreement, as it
\nmay from time to time be amended, supplemented or otherwise modified in
\naccordance with the terms hereof.<\/p>\n
“AMERICREDIT” means AmeriCredit Financial Services, Inc., a
\nDelaware corporation.<\/p>\n
“ASSIGNMENT AMOUNT” with respect to a Bank Investor shall
\nmean at any time an amount equal to the lesser of (i) such Bank Investor’s
\nPro Rata Share of the Net Investment at such time, (ii) such Bank Investors
\nPro Rata Share of the aggregate Outstanding Balance of Receivables (excluding
\nDefaulted Receivables) at such time and (iii) such Bank Investor’s unused
\nCommitment.<\/p>\n
“ASSIGNMENT AMOUNT DEFICIT” shall have the meaning given
\nsuch term in Section 5.9(a) hereof.<\/p>\n
“ASSIGNMENT AND ASSUMPTION AGREEMENT” means an Assignment
\nand Assumption Agreement substantially in the form of Exhibit A attached
\nhereto.<\/p>\n
“BANK INVESTORS” shall mean Bank of America, N.A. and each
\nother financial institution identified as such on the signature pages hereof
\nand their respective successors and assigns.<\/p>\n
“CLOSING DATE” shall mean September 30, 1999.<\/p>\n
“COLLATERAL AGENT” shall mean Bank of America, N.A., or any
\nsuccessor thereto, as Collateral Agent under the Security Agreement.<\/p>\n
“COMMERCIAL PAPER” shall mean promissory notes of the
\nCompany issued by the Company in the commercial paper market.<\/p>\n
“COMMITMENT” means (i) with respect to each Bank Investor
\nparty hereto, the commitment of such Bank Investor to make acquisitions from
\nthe Issuer or the Company in accordance herewith in an amount not to exceed
\nthe dollar amount set forth opposite such Bank Investor’s signature on the
\nsignature page hereto under the heading “COMMITMENT”, MINUS the dollar amount
\nof any Commitment or portion thereof assigned pursuant to an Assignment and
\nAssumption Agreement PLUS the dollar amount of any increase to such Bank
\nInvestor’s Commitment consented to by such Bank Investor prior to the time of
\ndetermination and (ii) with respect to any assignee of a Bank Investor party
\nhereto pursuant to an Assignment and Assumption Agreement, the commitment of
\nsuch assignee to make advances to the Issuer or acquire the Note and the Net
\nInvestment from the Company, not to exceed the amount set forth in such
\nAssignment and Assumption Agreement MINUS the dollar amount of any Commitment
\nor portion thereof assigned pursuant to an Assignment and Assumption
\nAgreement prior to such time of determination PLUS the dollar amount of any
\nincrease to such assignee’s Commitment consented to by it prior to the time
\nof determination; PROVIDED, HOWEVER, that in the event that the Facility
\nLimit is reduced, in either case, the aggregate commitment of all the Bank
\nInvestors shall be reduced in a like amount and the commitment of each Bank
\nInvestor shall be reduced in proportion to such reduction.<\/p>\n
“COMPANY” shall mean Kitty Hawk Funding Corporation, a
\nDelaware corporation, together with its successors and assigns, including any
\nConduit Assignee.<\/p>\n
“CONDUIT ASSIGNEE” shall mean any commercial paper conduit
\nadministered by Bank of America and designated by Bank of America from time
\nto time to accept an assignment of the Company of all or a portion of the Net
\nInvestment.<\/p>\n
2<\/p>\n
“CP RATE” means, with respect to any funding period with
\nrespect to which Discount is to be calculated by reference to the rate of
\ninterest based on Commercial Paper, the rate equivalent to the rate (or if
\nmore than one rate, the weighted average of the rates) at which Commercial
\nPaper having a term equal to such funding period may be sold by any placement
\nagent or commercial paper dealer selected by the Company, PROVIDED, HOWEVER,
\nthat if the rate (or rates) as agreed between any such agent or dealer and
\nthe Company is a discount rate, then the rate (or if more than one rate, the
\nweighted average of the rates) resulting from the Company’s converting such
\ndiscount rate (or rates) to an interest-bearing equivalent rate per annum.<\/p>\n
“DEFAULTING BANK INVESTOR” shall have the meaning set forth
\nin Section 2.1(g) hereof.<\/p>\n
“EARLY COLLECTION FEE” means, for any funding period during
\nwhich the portion of the Net Investment that was allocated to such funding
\nperiod is reduced for any reason whatsoever, the amount payable in accordance
\nwith Section 4.3(b) hereof, equal to the excess, if any, of (i) the
\nadditional Discount that would have accrued during such funding period if
\nsuch reductions had not occurred, minus (ii) the income, if any, received by
\nthe recipient of such reductions from investing the proceeds of such
\nreductions.<\/p>\n
“EFFECTIVE DATE” shall have the meaning set forth in
\nSection 5.9(a) hereof.<\/p>\n
“EURODOLLAR RATE” means, with respect to any funding period
\nwith respect to which Discount is to be calculated by reference to the LIBOR
\nRate, a rate which is 1.25% in excess of a rate per annum equal to the sum
\n(rounded upwards, if necessary, to the next higher 1\/100 of 1%) of (A) the
\nrate obtained by dividing (i) the applicable LIBOR Rate by (ii) a percentage
\nequal to 100% minus the reserve percentage used for determining the maximum
\nreserve requirement as specified in Regulation D (including, without
\nlimitation, any marginal, emergency, supplemental, special or other
\nreserves), that is applicable to the Agent during such funding period in
\nrespect of eurocurrency or eurodollar funding, lending or liabilities (or, if
\nmore than one percentage shall be so applicable, the daily average of such
\npercentage for those days in such funding period during which any such
\npercentage shall be applicable) plus (B) the then daily net annual assessment
\nrate (rounded upwards, if necessary, to the nearest 1\/100 of 1%) as estimated
\nby the Agent for determining the current annual assessment payable by the
\nAgent to the Federal Deposit Insurance Corporation in respect of eurocurrency
\nor eurodollar funding, lending or liabilities.<\/p>\n
“FUNDING” shall mean the Initial Funding and any Subsequent
\nFunding.<\/p>\n
“FUNDING DATE” shall mean the date upon which any Funding
\noccurs.<\/p>\n
“GAAP” shall mean generally accepted accounting principles
\nset forth in the opinions and pronouncements of the Accounting Principles
\nBoard of the American Institute of Certified Public Accountants and
\nstatements of the Financial Accounting Standards Board or in such other
\nstatements or pronouncements by such other entity as approved by a
\nsignificant segment of the accounting profession, which are in effect from
\ntime to time.<\/p>\n
“INDEMNIFIED AMOUNTS” shall have the meaning set forth in
\nSection 4.1 hereof.<\/p>\n
3<\/p>\n
“INDEMNIFIED PARTIES” shall have the meaning set forth in
\nSection 4.1 hereof.<\/p>\n
“INITIAL FUNDING” shall have the meaning set forth in
\nSection 2.1(a) hereof.<\/p>\n
“INITIAL FUNDING DATE” shall mean the date upon which the
\nInitial Funding occurs.<\/p>\n
“INITIAL FUNDING REQUEST” shall have the meaning set forth
\nin 2.1(a) hereof.<\/p>\n
“INTEREST COMPONENT” shall have the meaning specified in
\nthe Security Agreement.<\/p>\n
“INVESTMENT TERMINATION DATE” means the first Business Day
\nafter the delivery by the Company to the Issuer of written notice that the
\nCompany elects, in its sole discretion, to commence the amortization of its
\ninterest in the Net Investment or to liquidate its interest in the Note and
\nthe Net Investment.<\/p>\n
“ISSUER” shall mean AmeriCredit BOA Trust, a Delaware
\nbusiness trust, and its successors and permitted assigns.<\/p>\n
“LAW” shall have the meaning specified in the Security
\nAgreement.<\/p>\n
“LIBOR RATE” means, with respect to any funding period
\n(which shall be either one month or three months, as selected by the Issuer
\nor the Agent, as appropriate) with respect to which Discount is to be
\ncalculated by reference to the LIBOR Rate, the rate at which deposits in U.S.
\ndollars are offered to the Agent, in the London interbank market at
\napproximately 11:00 a.m. (London time) two Business Days before the first day
\nof such funding period in an amount approximately equal to the Net Investment
\n(or portion thereof) to be funded by reference to the LIBOR Rate and for a
\nperiod of time approximately equal to the applicable funding period.<\/p>\n
“LIQUIDITY PROVIDER AGREEMENT” shall mean the agreement
\nbetween the Company and the Liquidity Provider evidencing the obligation of
\nthe Liquidity Provider to provide liquidity support to the Company in
\nconnection with the issuance of Commercial Paper.<\/p>\n
“LIQUIDITY PROVIDER” shall mean the Person or Persons who
\nwill provide liquidity support to the Company in connection with the issuance
\nby the Company of its Commercial Paper, and shall include any Person which
\nacquires a participation interest therein.<\/p>\n
“MAJORITY INVESTORS” shall mean at any time, Bank Investors
\nwhich hold Commitments aggregating in excess of 51% of the Facility Limit as
\nof such date.<\/p>\n
“MOODY’S” shall mean Moody’s Investors Service, Inc.<\/p>\n
“NON-DEFAULTING BANK INVESTOR” shall have the meaning set
\nforth in Section 2.1(g) hereof.<\/p>\n
“NOTE” shall mean the variable funding note issued to the
\nAgent for the benefit of the Company or the Bank Investors, as applicable,
\npursuant to Section 2.1 hereof, in the form of Exhibit D hereto.<\/p>\n
4<\/p>\n
“OTHER TRANSFEROR” shall mean any Person other than the
\nIssuer that has entered into a receivables purchase agreement, transfer and
\nadministration agreement, note purchase agreement, security agreement or
\nother similar agreement with the Company.<\/p>\n
“PRO RATA SHARE” means, for a Bank Investor, the Commitment
\nof such Bank Investor divided by the sum of the Commitments of all Bank
\nInvestors.<\/p>\n
“PURCHASED INTEREST” means the interest, if any, in the
\nReceivables acquired by the Liquidity Provider pursuant to the Liquidity
\nProvider Agreement.<\/p>\n
“REQUIREMENTS OF LAW” for any Person means the certificate
\nof incorporation or articles of association and by-laws or other
\norganizational or governing documents of such Person, and any law, treaty,
\nrule or regulation, or determination of an arbitrator or Governmental
\nAuthority, in each case applicable to or binding upon such Person or to which
\nsuch Person is subject, whether Federal, state or local (including, without
\nlimitation, usury laws, the Federal Truth in Lending Act and Regulation Z and
\nRegulation B of the Board of Governors of the Federal Reserve System).<\/p>\n
“S&P” shall mean Standard & Poor’s Ratings Services, a
\nDivision of The McGraw-Hill Companies.<\/p>\n
“SECTION 4.2 COSTS” shall have the meaning set forth in
\nSection 4.2(d) hereof.<\/p>\n
“SECURITY AGREEMENT” shall mean the Security Agreement,
\ndated as of the date hereof, among AmeriCredit, AFC II, the Issuer, the
\nCollateral Agent and the Company, as such agreement may be amended,
\nsupplemented or otherwise modified from time to time.<\/p>\n
“SUBSEQUENT FUNDING” shall mean any advance which is made
\npursuant to Section 2.1(b) hereof.<\/p>\n
“SUBSEQUENT FUNDING NOTICE” shall have the meaning set
\nforth in Section 2.1(b) hereof.<\/p>\n
“SUBSIDIARY” shall mean any corporation more than 50% of
\nthe outstanding voting securities of which shall at any time be owned or
\ncontrolled, directly or indirectly, by the Issuer or one or more
\nSubsidiaries, or any similar business organization which is so owned or
\ncontrolled.<\/p>\n
“TRANSACTION COSTS” shall have the meaning set forth in
\nSection 4.3 hereof.<\/p>\n
“TRANSFER PRICE” shall have the meaning set forth in
\nSection 2.1(f) hereof.<\/p>\n
“TRANSFER PRICE DEFICIT” shall have the meaning set forth
\nin Section 2.1(g) hereof.<\/p>\n
“UNIFORM COMMERCIAL CODE” OR “UCC” shall mean, with respect
\nto any state, the Uniform Commercial Code as from time to time in effect in
\nsuch state.<\/p>\n
5<\/p>\n
“WELLS FARGO” shall mean Wells Fargo Bank (Texas), National
\nAssociation.<\/p>\n
ARTICLE II<\/p>\n
FUNDINGS; THE NOTE<\/p>\n
Section 2.1. FUNDING; THE NOTE.<\/p>\n
(a) INITIAL FUNDING. Upon the terms and subject to
\nthe conditions herein set forth, provided that the Termination Date shall not
\nhave occurred, the Company may, at its option, or the Bank Investors shall
\n(in accordance with Section 5.9 hereof), if so requested by the Company, make
\nan initial advance (the “INITIAL FUNDING”) to the Issuer on or after the
\nClosing Date. In connection with the Initial Funding, the Issuer shall, by
\nnotice in the form of Exhibit B hereto (the “INITIAL FUNDING REQUEST”)
\nrequest such Funding at least one Business Day by 12:00 p.m. (New York time)
\nprior to the proposed date of such Initial Funding. Such notice shall specify
\nthe proposed Funding Amount (which shall be at least $1,000,000) and the
\nproposed date of the Initial Funding.<\/p>\n
(b) SUBSEQUENT FUNDINGS. Upon the terms and subject
\nto the conditions herein set forth, provided that the Termination Date shall
\nnot have occurred, the Company may, at its option, or the Bank Investors
\nshall (in accordance with Section 5.9 hereof), if so requested by the
\nCompany, make a subsequent advance from time to time (each, a “SUBSEQUENT
\nFUNDING”) to the Issuer on or after the Initial Funding Date. In connection
\nwith each Subsequent Funding, the Issuer shall, on the Business Day by 12:00
\np.m. (New York time) prior to the related Subsequent Funding Date, provide
\nthe Agent with a written notice in substantially the form of Exhibit C (a
\n“SUBSEQUENT FUNDING NOTICE”) setting forth the amount of the proposed
\nSubsequent Funding, which shall be at least $1,000,000 and integral multiples
\nof $100,000 in excess thereof (or, to the extent that the then available
\nunused portion of the Facility Limit is less than such amount, such amount).
\nSubsequent Fundings shall not occur more than twice per week. The Agent will
\npromptly notify the Company or each of the Bank Investors, as the case may
\nbe, of the Agent’s receipt of any Subsequent Funding Notice to be made to the
\nAgent on behalf of such Person. To the extent that any such Subsequent
\nFunding is requested of the Agent on behalf of the Company, the Company shall
\ninstruct the Agent to accept or reject such offer by notice given to the
\nIssuer and the Agent by telephone or telecopy by no later than the close of
\nits business on the Business Day following its receipt of any such request.
\nThe parties hereto understand that in no event shall the Net Investment be
\nheld by the Agent on behalf of the Company and the Bank Investors
\nsimultaneously, except in the case of an assignment to a Bank Investor
\npursuant to Section 5.9(f) hereof.<\/p>\n
(c) By making any advance hereunder, neither the
\nCompany, the Agent nor any Bank Investor assumes or shall have any
\nobligations or liability under any of the Receivables, all of which shall
\nremain the obligations and liabilities of the Issuer, AmeriCredit and AFC II.<\/p>\n
(d) CONDITIONS TO FUNDING. Neither the Company nor
\nthe Bank Investors shall, and shall have no obligation to, advance any funds
\nto the Issuer in connection <\/p>\n
6<\/p>\n
with any Funding if on the date of the proposed Funding, (i) either (x) if
\nthe Funding is to be made by the Company, the sum of the Net Investment after
\ngiving effect to the Funding, plus the Interest Component of Commercial Paper
\nissued in connection with such Funding would exceed the Facility Limit, or
\n(y) if the Funding is to be made by the Bank Investors, the Net Investment,
\nafter giving effect to the Funding, would exceed the aggregate Commitments;
\n(ii) the Issuer is not in compliance with Section 5.3 of the Security
\nAgreement; (iii) the Issuer shall not have deposited in the Reserve Account,
\nor shall not have given irrevocable instructions to the Agent to withhold
\nfrom proceeds of such Funding, an amount equal to the amount necessary to
\ncause the amount on deposit in the Reserve Account to equal the Reserve
\nAccount Floor; (calculated as if such Funding shall have occurred); (iv) a
\nPotential Termination Event or Termination Event shall have occurred and be
\ncontinuing; (v) the conditions precedent set forth in Sections 4.1 and 4.2 of
\nthe Security Agreement shall not be satisfied; (vi) the representations and
\nwarranties in Section 3.1 hereof shall not be true and correct; (vii) after
\ngiving effect to such Funding, the Net Investment shall be greater than the
\nproduct of (a) the Noteholder’s Percentage and (b) the sum of the Net
\nReceivables Balance and Collections on deposit in the Collection Account; or
\n(viii) each of the Agent and the Issuer shall not have received, duly
\nexecuted and delivered by Wells Fargo, a lien release substantially in the
\nform specified in Section 1(b) of the Intercreditor Agreement and, in the
\ncase of the Initial Funding, a release on form UCC-3 with respect to the
\nrelated Receivables.<\/p>\n
(e) INITIAL FUNDING REQUEST AND SUBSEQUENT FUNDING
\nNOTICES IRREVOCABLE. The Initial Funding Request and any Subsequent Funding
\nNotice shall be irrevocable and binding on the Issuer and the Issuer shall
\nindemnify the Agent, the Company and the Bank Investors against any loss or
\nexpense incurred by the Company or the Bank Investors, either directly or
\nindirectly (including through the Liquidity Provider Agreement) as a result
\nof any failure by the Issuer to complete the requested Funding including,
\nwithout limitation, any loss (including loss of anticipated profits) or
\nexpense incurred by the Agent, the Company or the Bank Investors, either
\ndirectly or indirectly (including pursuant to the Liquidity Provider
\nAgreement), by reason of the liquidation or reemployment of funds acquired by
\nthe Company (or the Liquidity Provider) (including, without limitation, funds
\nobtained by issuing commercial paper or promissory notes or obtaining
\ndeposits or loans from third parties) for the Company or the Bank Investors
\nto complete the requested Funding.<\/p>\n
(f) PAYMENTS. By no later than 11:00 a.m. (New York
\ntime) on the date of any Funding, the Company or each Bank Investor, as the
\ncase may be, shall remit its share (which, in the case of a Subsequent
\nFunding to the Bank Investors, shall be equal to such Bank Investor’s Pro
\nRata Share) of the amount of such Funding to be advanced by the Company or
\nthe Bank Investors to the Issuer as set forth in the Initial Funding Request
\nor the applicable Subsequent Funding Notice, as the case may be (the
\n“Transfer Price”) to the account of the Agent specified therefor from time to
\ntime by the Agent by notice to such Persons. The obligation of each Bank
\nInvestor to remit its Pro Rata Share of any such Transfer Price shall be
\nseveral from that of each other Bank Investor, and the failure of any Bank
\nInvestor to so make such amount available to the Agent shall not relieve any
\nother Bank Investor of its obligation hereunder. Following each Subsequent
\nFunding and the Agent’s receipt of funds from the Company or the Bank
\nInvestors as set forth above, the Agent shall remit such funds received in
\nrespect of the Transfer Price to the Issuer’s account at the location
\nindicated in Section 6.3 hereof, in immediately available funds. Unless the
\nAgent shall have received notice from the <\/p>\n
7<\/p>\n
Company or any Bank Investor, as applicable, that such Person will not make
\nits share of any Transfer Price relating to any Subsequent Funding available
\non the applicable Transfer Date therefor, the Agent may (but shall have no
\nobligation to) make the Company’s or any such Bank Investor’s share of any
\nsuch Transfer Price available to the Issuer in anticipation of the receipt by
\nthe Agent of such amount from the Company or such Bank Investor. To the
\nextent the Company or any such Bank Investor fails to remit any such amount
\nto the Agent after any such advance by the Agent on such Transfer Date, the
\nCompany or such Bank Investor, on the one hand, and the Issuer, on the other
\nhand, shall be required to pay such amount, together with interest thereon at
\na per annum rate equal to the Federal funds rate (as determined in accordance
\nwith clause (ii) of the definition of “Base Rate”), in the case of the
\nCompany or any such Bank Investor, or the Base Rate, in the case of the
\nIssuer, to the Agent upon its demand therefor (PROVIDED that the Company
\nshall have no obligation to pay such interest amounts except to the extent
\nthat it shall have sufficient funds to pay the face amount of its Commercial
\nPaper in full). Until such amount shall be repaid, such amount shall be
\ndeemed to be Net Investment paid by the Agent and the Agent shall be deemed
\nto be the owner of an interest in the Note hereunder. Upon the payment of
\nsuch amount to the Agent (x) by the Issuer, the amount of the aggregate Net
\nInvestment shall be reduced by such amount or (y) by the Company or such Bank
\nInvestor, such payment shall constitute such Person’s payment of its share of
\nthe applicable Transfer Price for such Funding.<\/p>\n
Notwithstanding anything contained in this Section 2.1(f) or
\nelsewhere in this Agreement to the contrary, no Bank Investor shall be
\nobligated to provide the Agent or the Issuer with funds in connection with
\nany Funding in an amount that would exceed such Bank Investor’s unused
\nCommitment then in effect. The failure of any Bank Investor to make its Pro
\nRata Share of the Transfer Price available to the Agent shall not relieve any
\nother Bank Investor of its obligations hereunder.<\/p>\n
(g) DEFAULTING BANK INVESTOR. If by 2:00 P.M. (New
\nYork time), whether or not the Agent has advanced the Transfer Price, one or
\nmore Bank Investors (each, a “DEFAULTING BANK INVESTOR”, and each Bank Investor
\nother than the Defaulting Bank Investor being referred to as a “NON-DEFAULTING
\nBANK INVESTOR”) fails to make its Pro Rata Share of the Transfer Price available
\nto the Agent pursuant to Section 2.1(f) hereof (the aggregate amount not so made
\navailable to the Agent being herein called the “TRANSFER PRICE DEFICIT”), then
\nthe Agent shall, by no later than 2:30 P.M. (New York time on the Transfer
\nDate), instruct each Non-Defaulting Bank Investor to pay, by no later than 3:00
\nP.M. (New York time on the Transfer Date), in immediately available funds, to
\nthe account designated by the Agent, an amount equal to the lesser of (x) such
\nNon-Defaulting Bank Investor’s proportionate share (based upon the relative
\nCommitments of the Non-Defaulting Bank Investors) of the Transfer Price Deficit
\nand (y) its unused Commitment. A Defaulting Bank Investor shall forthwith, upon
\ndemand, pay to the Agent for the ratable benefit of the Non-Defaulting Bank
\nInvestors all amounts paid by each Non-Defaulting Bank Investor on behalf of
\nsuch Defaulting Bank Investor, together with interest thereon, for each day from
\nthe date a payment was made by a Non-Defaulting Bank Investor until the date
\nsuch Non-Defaulting Bank Investor has been paid such amounts in full, at a rate
\nper annum equal to the sum of the Base Rate PLUS 2%.<\/p>\n
(h) DISBURSEMENT OF FUNDS. No later than 3:00 p.m.
\n(New York City time) on the date on which a Funding is to be made, the Company
\nor the Bank Investors, as applicable, will make available to the Issuer in
\nimmediately available funds, the amount of the <\/p>\n
8<\/p>\n
Funding to be made on such day by remitting the required amount thereof to an
\naccount of the Issuer as designated in the related notice requesting such
\nFunding.<\/p>\n
(i) THE NOTE.<\/p>\n
(i) The Issuer’s obligation to pay the principal of
\nand interest on all amounts advanced by the Company or the Bank Investors
\npursuant to any Funding shall be evidenced by a single note of the Issuer (the
\n“Note”) which shall (1) be dated the Closing Date; (2) be in the stated
\nprincipal amount equal to the Facility Limit (as reflected from time to time on
\nthe grid attached thereto); (3) bear interest as provided therein; (4) be
\npayable to the order of the Agent for the account of the Company or the Bank
\nInvestors, as applicable, and mature on the Remittance Date occurring in the
\nsixth calendar month following the calendar month in which the latest maturing
\nReceivable (determined as of the Termination Date) is scheduled to mature
\n(without regard to extensions subsequently granted on any Receivable by the
\nIssuer or the Collection Agent); (5) be entitled to the benefit of the Security
\nAgreement and (6) be substantially in the form of Exhibit D to this Agreement,
\nwith blanks appropriately completed in conformity herewith. The Agent shall, and
\nis hereby authorized to, make a notation on the schedule attached to the Note of
\nthe date and the amount of each Funding and the date and amount of the payment
\nof principal thereon, and prior to any transfer of the Note, the Agent shall
\nendorse the outstanding principal amount of the Note on the schedule attached
\nthereto; provided, however, that failure to make such notation shall not
\nadversely affect the Company’s or any Bank Investor’s rights with respect to the
\nNote.<\/p>\n
(ii) Although the Note shall be dated the Closing
\nDate, interest in respect thereof shall be payable only for the periods during
\nwhich amounts are outstanding thereunder. In addition, although the stated
\nprincipal amount of the Note shall be equal to the Facility Limit, the Note
\nshall be enforceable with respect to the Issuer’s obligation to pay the
\nprincipal thereof only to the extent of the unpaid principal amount of the
\nFundings outstanding thereunder at the time such enforcement shall be sought.<\/p>\n
Section 2.2. SHARING OF PAYMENTS, ETC. If the Company or any Bank
\nInvestor (for purposes of this Section only, being a “RECIPIENT”) shall obtain
\nany payment (whether voluntary, involuntary, through the exercise of any right
\nof setoff, or otherwise) on account of any interest in the Note owned by it in
\nexcess of its ratable share of payments on account of any interest in the Note
\nobtained by the Company and\/or the Bank Investors entitled thereto, such
\nRecipient shall forthwith purchase from the Company and\/or the Bank Investors
\nentitled to a share of such amount participations in the percentage interests
\nowned by such Persons as shall be necessary to cause such Recipient to share the
\nexcess payment ratably with each such other Person entitled thereto; PROVIDED,
\nHOWEVER, that if all or any portion of such excess payment is thereafter
\nrecovered from such Recipient, such purchase from each such other Person shall
\nbe rescinded and each such other Person shall repay to the Recipient the
\npurchase price paid by such Recipient for such participation to the extent of
\nsuch recovery, together with an amount equal to such other Person’s ratable
\nshare (according to the proportion of (a) the amount of such other Person’s
\nrequired payment to (b) the total amount so recovered from the Recipient) of any
\ninterest or other amount paid or payable by the Recipient in respect of the
\ntotal amount so recovered.<\/p>\n
9<\/p>\n
Section 2.3 RIGHT OF SETOFF. Without in any way limiting the
\nprovisions of Section 2.2 hereof, each of the Agent, the Company and the Bank
\nInvestors is hereby authorized (in addition to any other rights it may have) at
\nany time after the occurrence of a Termination Event or during the continuance
\nof a Potential Termination Event to set-off, appropriate and apply (without
\npresentment, demand, protest or other notice which are hereby expressly waived)
\nany deposits and any other indebtedness held or owing by the Agent, the Company
\nor such Bank Investor to, or for the account of, the Issuer against the
\nAggregate Unpaids owing by the Issuer to such Person (even if contingent or
\nunmatured).<\/p>\n
Section 2.4. FEES. The Issuer shall pay, in accordance with the Fee
\nLetter, such fees as are described therein, all of which shall be
\nnon-refundable.<\/p>\n
Section 2.5. SELECTION OF FUNDING PERIODS AND INTEREST RATES.<\/p>\n
(a) PRIOR TO THE TERMINATION DATE; TRANSFERRED
\nINTEREST HELD ON BEHALF OF THE COMPANY. At all times hereafter, but prior to the
\nTermination Date and with respect to the Transferred Interest held by the Agent
\non behalf of the Company, the Issuer may, subject to the Company’s approval and
\nthe limitations described below, request funding periods and allocate a portion
\nof the Net Investment to each selected funding period, so that the aggregate
\namounts allocated to outstanding funding periods at all times shall equal the
\nNet Investment held on behalf of the Company. The Issuer shall give the Company
\nirrevocable notice by telephone of the requested funding period(s) at least one
\n(1) Business Day prior by 12:00 p.m. (New York time) to the requested Funding
\nDate or the expiration of any then existing funding period; PROVIDED, HOWEVER,
\nthat the Company may select, in its sole discretion, any such funding period if
\n(i) the Issuer fails to provide such notice on a timely basis or (ii) the
\nCompany determines, in its sole discretion, that the funding period requested by
\nthe Issuer is unavailable or for any reason commercially undesirable to any
\nparty. The Company confirms that it is its intention to allocate all or
\nsubstantially all of the Net Investment held on behalf of it to one or more
\nfunding periods with respect to which the interest rate applicable thereto is
\ncalculated by reference to the CP Rate; provided that the Company may determine,
\nfrom time to time, in its sole discretion, that funding such Net Investment by
\nmeans of the CP Rate is not possible or is not desirable for any reason. If the
\nLiquidity Provider acquires from the Company a Purchased Interest with respect
\nto the Receivables pursuant to the terms of the Liquidity Provider Agreement,
\nBank of America, on behalf of the Liquidity Provider, may exercise the right of
\nselection granted to the Company hereby. The initial funding period applicable
\nto any such Purchased Interest shall be a period of not greater than 14 days and
\nDiscount with respect thereto shall be calculated by reference to the Base Rate.
\nThereafter, provided that the Termination Date caused by a Termination Event
\nshall not have occurred, Discount shall be calculated by reference to the
\nEurodollar Rate and, if such rate is not available, the Base Rate. In the case
\nof any funding period outstanding upon the occurrence of the Termination Date,
\nsuch funding period shall end on the date of such occurrence.<\/p>\n
(b) AFTER THE TERMINATION DATE; TRANSFERRED INTEREST
\nHELD ON BEHALF OF THE COMPANY. At all times on and after the Termination Date,
\nwith respect to any portion of the Transferred Interest which shall be held by
\nthe Agent on behalf of the Company, the Agent shall select all funding periods.
\nAt all times after the Termination Date but prior to the occurrence of a
\nTermination Event, Discount shall be calculated by reference to the CP Rate;
\nafter the <\/p>\n
10<\/p>\n
occurrence of a Termination Event, Discount shall be determined as set forth
\nin Section 6.2 of the Security Agreement. If the Liquidity Provider acquires
\nfrom the Company a Purchased Interest with respect to the Receivables
\npursuant to the terms of the Liquidity Provider Agreement, Bank of America,
\non behalf of the Liquidity Provider, may exercise the right of selection
\ngranted to the Company hereby. The initial funding period applicable to any
\nsuch Purchased Interest shall be a period of not greater than 14 days and
\nDiscount with respect thereto shall be calculated by reference to the Base
\nRate. Thereafter, PROVIDED that a Termination Event shall not have occurred,
\nDiscount shall be calculated by reference to the Eurodollar Rate and, if such
\nrate is not available, the Base Rate.<\/p>\n
(c) PRIOR TO THE TERMINATION DATE; TRANSFERRED
\nINTEREST HELD ON BEHALF OF BANK INVESTOR. At all times with respect to any
\nportion of the Transferred Interest held by the Agent on behalf of the Bank
\nInvestors, but prior to the Termination Date, the initial funding period
\napplicable to such portion of the Net Investment allocable thereto shall be a
\nperiod of not greater than 14 days and Discount with respect thereto shall be
\ncalculated by reference to the Base Rate. Thereafter, with respect to such
\nportion, and with respect to any other portion of the Transferred Interest held
\non behalf of the Bank Investors (or any of them), PROVIDED that the Termination
\nDate caused by a Termination Event shall not have occurred, the funding period
\napplicable thereto shall be determined by the Issuer and Discount with respect
\nthereto shall be calculated by reference to the Eurodollar Rate and, if such
\nrate is not available, the Base Rate; PROVIDED, HOWEVER, that no funding period
\nshall be greater than 90 days. The Issuer shall give the Agent irrevocable
\nnotice by telephone of the new requested funding period at least three (3)
\nBusiness Days prior to the expiration of any then existing funding period. In
\nthe case of any funding period outstanding upon the occurrence of the
\nTermination Date, such funding period shall end on the date of such occurrence.<\/p>\n
(d) AFTER THE TERMINATION DATE; TRANSFERRED INTEREST
\nHELD ON BEHALF OF BANK INVESTOR. At all times on and after the Termination Date,
\nwith respect to any portion of the Transferred Interest held by the Agent on
\nbehalf of the Bank Investors, the Agent shall select all funding periods
\napplicable thereto. At all times on and after the Termination Date but prior to
\nthe occurrence of a Termination Event, Discount shall be calculated by reference
\nto the Eurodollar Rate or, if such rate is not available, to the Base Rate;
\nafter the occurrence of a Termination Event, Discount shall be determined as set
\nforth in Section 6.2 of the Security Agreement.<\/p>\n
(e) EURODOLLAR RATE PROTECTION; ILLEGALITY.<\/p>\n
(i) If the Agent is unable to obtain on a timely
\nbasis the information necessary to determine the Eurodollar Rate for any
\nproposed funding period, then<\/p>\n
(1) the Agent shall forthwith notify the
\nCompany or Bank Investors, as applicable and the Issuer that the Eurodollar
\nRate cannot be determined for such funding period, and<\/p>\n
(2) while such circumstances exist, neither
\nthe Company, the Bank Investors nor the Agent shall allocate the Net
\nInvestment of any additional advances during such period or reallocate the
\nNet Investment allocated to any then existing <\/p>\n
11<\/p>\n
funding period ending during such period, to a funding period with respect to
\nwhich Discount is calculated by reference to the Eurodollar Rate.<\/p>\n
(ii) If, with respect to any outstanding funding
\nperiod, the Company or any of the Bank Investors on behalf of which the Agent
\nholds any Transferred Interest therein notifies the Agent that it is unable to
\nobtain matching deposits in the London interbank market to fund any advance or
\nto maintain such Transferred Interest or that the Eurodollar Rate applicable to
\nsuch Transferred Interest will not adequately reflect the cost to the Person of
\nfunding or maintaining its respective Transferred Interest for such funding
\nperiod then the Agent shall forthwith so notify the Issuer, whereupon neither
\nthe Agent nor the Company or the Bank Investors, as applicable, shall, while
\nsuch circumstances exist, allocate any Net Investment of any additional
\nTransferred Interest purchased during such period or reallocate the Net
\nInvestment allocated to any funding period ending during such period, to a
\nfunding period with respect to which Discount is calculated by reference to the
\nEurodollar Rate.<\/p>\n
(iii) Notwithstanding any other provision of this
\nAgreement, if the Company or any of the Bank Investors, as applicable, shall
\nnotify the Agent that such Person has determined (or has been notified by any
\nLiquidity Provider) that the introduction of or any change in or in the
\ninterpretation of any law or regulation makes it unlawful (either for the
\nCompany, such Bank Investor, or such Liquidity Provider, as applicable), or any
\ncentral bank or other governmental authority asserts that it is unlawful, for
\nthe Company, such Bank Investor or such Liquidity Provider, as applicable, to
\nfund any advance or to maintain the Transferred Interest the Discount with
\nrespect to which is calculated by reference to the Eurodollar Rate, then (x) as
\nof the effective date of such notice from such Person to the Agent, the
\nobligation or ability of the Company or such Bank Investor, as applicable, to
\nfund its purchase or maintenance of the Transferred Interest at a Discount
\ncalculated by reference to the Eurodollar Rate shall be suspended until such
\nPerson notifies the Agent that the circumstances causing such suspension no
\nlonger exist and (y) the Net Investment of each funding period in which such
\nPerson owns an interest shall either (1) if such Person may lawfully continue to
\nmaintain the Transferred Interest at a Discount calculated by reference to the
\nEurodollar Rate until the last day of the applicable funding period, be
\nreallocated on the last day of such funding period to another funding period in
\nrespect of which the Net Investment allocated thereto accrues Discount
\ndetermined other than with respect to the Eurodollar Rate or (2) if such Person
\nshall determine that it may not lawfully continue to maintain the Transferred
\nInterest at a Discount calculated by reference to the Eurodollar Rate until the
\nend of the applicable funding period, such Person’s share of the Net Investment
\nallocated to such funding period shall be deemed to accrue Discount at the Base
\nRate from the effective date of such notice until the end of such funding
\nperiod.<\/p>\n
ARTICLE III<\/p>\n
REPRESENTATIONS AND WARRANTIES<\/p>\n
OF THE ISSUER<\/p>\n
Section 3.1. REPRESENTATIONS AND WARRANTIES OF THE ISSUER . The Issuer
\nrepresents and warrants to and covenants with the Agent, the Company and the
\nBank Investors as of the Closing Date and, except as otherwise provided herein,
\nas of any Funding Date that:<\/p>\n
12<\/p>\n
(a) CORPORATE EXISTENCE AND POWER. The Issuer is a business trust
\nduly organized, validly existing and in good standing under the laws of Delaware
\nand has all power and all material governmental licenses, authorizations,
\nconsents and approvals required to carry on its business in each jurisdiction in
\nwhich its business is now conducted.<\/p>\n
(b) CORPORATE AND GOVERNMENTAL AUTHORIZATION; CONTRAVENTION. The
\nexecution, delivery and performance by the Issuer of this Agreement and the
\nother Transaction Documents are within the Issuer’s powers, have been duly
\nauthorized by all necessary action, require no action by or in respect of, or
\nfiling with, any governmental body, agency or official (except as contemplated
\nby Section 2.6 of the Security Agreement), and do not contravene, or constitute
\na default under, any provision of applicable law or regulation or of the
\nIssuer’s Trust Agreement or of any agreement, judgment, injunction, order,
\ndecree or other instrument binding upon the Issuer or result in the creation or
\nimposition of any lien on assets of the Issuer (except as contemplated by
\nSection 2.6 of the Security Agreement), or require the consent or approval of,
\nor the filing of any notice or other documentation with, any governmental
\nauthority or other Person.<\/p>\n
(c) BINDING EFFECT. Each of this Agreement and the other
\nTransaction Documents constitutes the legal, valid and binding obligation of the
\nIssuer, enforceable against the Issuer in accordance with its terms, subject to
\napplicable bankruptcy, insolvency, moratorium or other similar laws affecting
\nthe rights of creditors.<\/p>\n
(d) ACCURACY OF INFORMATION. All information heretofore furnished
\nby the Issuer (including without limitation, the Settlement Statement and
\nAmeriCredit Corp.’s financial statements) to the Company, the Bank Investors or
\nthe Agent for purposes of or in connection with this Agreement or any
\ntransaction contemplated hereby is, and all such information hereafter furnished
\nby the Issuer to the Company, the Bank Investors or the Agent will be, true and
\naccurate in every material respect, and the Issuer has not omitted to disclose
\nany information which is material to the transaction, on the date such
\ninformation is stated or certified.<\/p>\n
(e) TAX STATUS. All tax returns (federal, state and local)
\nrequired to be filed with respect to the Issuer have been filed (which filings
\nmay be made by an Affiliate of the Issuer on a consolidated basis covering the
\nIssuer and other Persons) and there has been paid or adequate provision made for
\nthe payment of all taxes, assessments and other governmental charges in respect
\nof the Issuer (or in the event consolidated returns have been filed, with
\nrespect to the Persons subject to such returns).<\/p>\n
(f) ACTION, SUITS. There are no actions, suits or proceedings
\npending, or to the knowledge of the Issuer threatened, against or affecting the
\nIssuer or any Affiliate of the Issuer or their respective properties, in or
\nbefore any court, arbitrator or other body.<\/p>\n
(g) USE OF PROCEEDS. (i) The proceeds of any Funding will be used
\nby the Issuer to (a) acquire the Receivables, the Contracts related thereto and
\nthe Related Security with respect thereto from each of AmeriCredit and AFC II,
\nas the case may be, pursuant to the Master Receivables Purchase Agreement, (b)
\nto pay down debt in connection with the purchase of the Receivables and
\nContracts pursuant to the Master Receivables Purchase Agreement, or (c) <\/p>\n
13<\/p>\n
to make distributions constituting a return of capital and (ii) no proceeds
\nof any Funding will be used by the Issuer to acquire any security in any
\ntransaction which is subject to Section 12 of the Securities Exchange Act of
\n1934, as amended or for any purpose that violates any applicable law, rule or
\nregulation, including Regulation U of the Federal Reserve Board.<\/p>\n
(h) PLACE OF BUSINESS. The chief place of business and chief
\nexecutive office of the Issuer are located at the address of the Issuer
\nindicated in Section 8.3 of the Security Agreement and the offices where the
\nIssuer keeps all its records, are located at the address indicated in Section
\n8.3 of the Security Agreement.<\/p>\n
(i) MERGER AND CONSOLIDATION. As of the date hereof the Issuer has
\nnot changed its name, merged with or into or been consolidated with any other
\nentity or been the subject of any proceeding under Title 11, United States Code
\n(Bankruptcy).<\/p>\n
(j) SOLVENCY. The Issuer is not insolvent and will not be rendered
\ninsolvent immediately following the consummation on the Closing Date of the
\ntransactions contemplated by this Agreement and the Security Agreement,
\nincluding the pledge by the Issuer to the Collateral Agent of the Collateral.<\/p>\n
(k) NO TERMINATION EVENT. After giving effect to each Funding, no
\nPotential Termination Event or Termination Event exists.<\/p>\n
(l) COMPLIANCE. The Issuer has complied in all material respects
\nwith all Requirements of Law in respect of the conduct of its business and
\nownership of its property including the Receivables.<\/p>\n
(m) NOT AN INVESTMENT COMPANY OR A HOLDING COMPANY. The Issuer is
\nnot, and is not controlled by, an “investment company” within the meaning of the
\nInvestment Company Act of 1940, as amended, or is exempt from all provisions of
\nsuch Act. The Issuer is not a “holding company”, or a subsidiary or affiliate of
\na “holding company”, within the meaning of the Public Utility Holding Company
\nAct of 1935, as amended.<\/p>\n
(n) ERISA. The Issuer is in compliance in all material respects
\nwith ERISA and no lien in favor of the PBGC on any of the Receivables shall
\nexist.<\/p>\n
(o) SUBSIDIARIES. The Issuer does not have any Subsidiaries.<\/p>\n
(p) YEAR 2000. The Issuer relies exclusively on the Receivables
\nSystems of the Collection Agent, does not have any Receivables Systems or
\ncomputer applications of its own and does not have any Receivables Systems that
\nneed to be Year 2000 Compliant.<\/p>\n
Any document, instrument, certificate or notice delivered to the
\nCompany, any Bank Investor or the Agent by the Issuer hereunder shall be
\ndeemed a representation and warranty by the Issuer.<\/p>\n
The representations and warranties set forth in this Section 3.1
\nshall survive the pledge and assignment of the Collateral to the Collateral
\nAgent for the benefit of the Secured <\/p>\n
14<\/p>\n
Parties. Upon discovery by the Issuer, the Company, the Agent or a Bank
\nInvestor of a breach of any of the foregoing representations and warranties,
\nthe party discovering such breach shall give prompt written notice to the
\nothers.<\/p>\n
ARTICLE IV<\/p>\n
INDEMNIFICATION<\/p>\n
Section 4.1. INDEMNITY. Without limiting any other rights which the Agent,
\nthe Company or the Bank Investors may have hereunder or under applicable law,
\nthe Issuer agrees to indemnify the Company, the Bank Investors, the Collateral
\nAgent, the Agent, the Administrative Agent, the Liquidity Provider, the Credit
\nSupport Provider and any permitted assigns and their respective agents,
\nofficers, directors and employees (collectively, “INDEMNIFIED PARTIES”) from and
\nagainst any and all damages, losses, claims, liabilities, costs and expenses,
\nincluding reasonable attorneys’ fees (which such attorneys may be employees of
\nthe Company, the Bank Investors, the Agent, the Collateral Agent, the
\nAdministrative Agent, the Liquidity Provider and the Credit Support Provider)
\nand disbursements (all of the foregoing being collectively referred to as
\n“INDEMNIFIED AMOUNTS”) awarded against or incurred by any of them in any action
\nor proceeding between the Issuer, AmeriCredit (including in its capacity as
\nCollection Agent) or AFC II and any of the Indemnified Parties or between any of
\nthe Indemnified Parties and any third party or otherwise arising out of or as a
\nresult of this Agreement, the other Transaction Documents or the ownership or
\nmaintenance, either directly or indirectly, by the Company, the Bank Investors,
\nthe Agent, the Administrative Agent, the Liquidity Provider or the Credit
\nSupport Provider of the Note, or any other transactions contemplated hereby or
\nthereby excluding, however, (i) Indemnified Amounts to the extent resulting from
\ngross negligence or willful misconduct on the part of an Indemnified Party or
\n(ii) recourse (except as otherwise specifically provided in this Agreement) for
\nuncollectible Receivables. Such Indemnified Amounts shall be paid in accordance
\nwith Section 2.3(a)(ix) of the Security Agreement. Without limiting the
\ngenerality of the foregoing, the Issuer shall indemnify each Indemnified Party
\nfor Indemnified Amounts relating to or resulting from:<\/p>\n
(a) any representation or warranty made by the Issuer,
\nAmeriCredit, AFC II or the Collection Agent (or any officers of the Issuer or
\nthe Collection Agent) under or in connection with this Agreement, the Security
\nAgreement, any other Transaction Document, the Initial Funding Request, any
\nSubsequent Funding Notice, any Settlement Statement or any other information or
\nreport delivered by the Issuer, AmeriCredit, AFC II or the Collection Agent
\npursuant hereto or thereto, which shall have been false or incorrect in any
\nmaterial respect when made or deemed made;<\/p>\n
(b) the failure by the Issuer, AmeriCredit, AFC II or the
\nCollection Agent to comply with any applicable law, rule or regulation with
\nrespect to the Collateral, or the nonconformity of any portion of the Collateral
\nwith any such applicable law, rule or regulation;<\/p>\n
(c) the failure to vest and maintain vested in the Collateral
\nAgent a first priority perfected security interest in the Collateral, free and
\nclear of any Adverse Claim;<\/p>\n
15<\/p>\n
(d) the failure to file, or any delay in filing, financing
\nstatements, continuation statements, or other similar instruments or documents
\nunder the UCC of any applicable jurisdiction or other applicable laws with
\nrespect to all or any part of the Collateral which failure has an adverse effect
\non the validity, perfected status or priority of the security interest granted
\nto the Collateral Agent under the Security Agreement;<\/p>\n
(e) any dispute, claim, offset or defense (other than discharge in
\nbankruptcy of the Obligor) of the Obligor to the payment of any Receivable
\n(including, without limitation, a defense based on such Receivable not being
\nlegal, valid and binding obligation of such Obligor enforceable against it in
\naccordance with its terms), or any other claim resulting from the sale of
\nservices related to such Receivable or the furnishing or failure to furnish such
\nservices;<\/p>\n
(f) any failure of the Issuer or the Collection Agent to perform
\nits duties or obligations in accordance with the provisions of the Security
\nAgreement or any other Transaction Document to which it is a party;<\/p>\n
(g) any products liability claim or personal injury or property
\ndamage suit or other similar or related claim or action of whatever sort arising
\nout of or in connection with related merchandise or services which are the
\nsubject of any Receivable;<\/p>\n
(h) the transfer of an ownership interest in any Receivable other
\nthan an Eligible Receivable;<\/p>\n
(i) the failure by the Issuer, AmeriCredit (individually or as
\nCollection Agent) or AFC II to comply with any term, provision or covenant
\ncontained in this Agreement or any of the other Transaction Documents to which
\nit is a party or to perform any of its respective duties under the Receivables
\nor the Contracts;<\/p>\n
(j) the failure of AmeriCredit or AFC II to pay when due any
\ntaxes, including without limitation, sales, excise or personal property taxes
\npayable in connection with any of the Receivables or the Contracts;<\/p>\n
(k) any repayment by any Indemnified Party of any amount
\npreviously distributed in reduction of Net Investment which such Indemnified
\nParty believes in good faith is required to be made;<\/p>\n
(l) the commingling by the Issuer, AmeriCredit, AFC II or the
\nCollection Agent of Collections in respect of Receivables at any time with other
\nfunds;<\/p>\n
(m) any investigation, litigation or proceeding related to this
\nAgreement, any of the other Transaction Documents, the use of proceeds of
\nFundings by the Issuer, AmeriCredit or AFC II, the ownership of an interest in
\nthe Note, or any Contract, Receivable or Related Security;<\/p>\n
(n) the failure of any Lock-Box Bank to remit any amounts held in
\nany Lock-Box Account pursuant to the instructions of the Collection Agent, the
\nIssuer, AmeriCredit, AFC II or the Agent (to the extent such Person is entitled
\nto give such instructions in accordance <\/p>\n
16<\/p>\n
with the terms hereof and of any applicable Lock-Box Agreement) whether by
\nreason of the exercise of set-off rights or otherwise;<\/p>\n
(o) any inability to obtain any judgment in or utilize the court
\nor other adjudication system of, any state in which an Obligor may be located as
\na result of the failure of the Issuer, AmeriCredit or AFC II to qualify to do
\nbusiness or file any notice of business activity report or any similar report;<\/p>\n
(p) any failure of the Issuer to give reasonably equivalent value
\nto AmeriCredit or AFC II, as applicable, in consideration of the purchase by the
\nIssuer from AmeriCredit or AFC II, as the case may be, of any Receivable, or any
\nattempt by any Person to void, rescind or set-aside any such transfer under
\nstatutory provisions or common law or equitable action, including, without
\nlimitation, any provision of the Bankruptcy Code;<\/p>\n
(q) any action taken by the Issuer, AmeriCredit, AFC II or the
\nCollection Agent (if the Issuer, AmeriCredit or any Affiliate or designee of the
\nIssuer or AmeriCredit) in the enforcement or collection of any Receivable; or<\/p>\n
(r) the use of the proceeds of any Funding;<\/p>\n
PROVIDED, HOWEVER, that if the Company enters into agreements for the purchase
\nof interests in receivables from one or more Other Transferors, the Company
\nshall allocate such Indemnified Amounts which are in connection with the
\nLiquidity Provider Agreement or the Credit Support Agreement to the Issuer and
\neach Other Transferor; and PROVIDED, FURTHER, that if such Indemnified Amounts
\nare attributable to the Issuer and not attributable to any Other Transferor, the
\nIssuer shall be solely liable for such Indemnified Amounts or if such
\nIndemnified Amounts are attributable to Other Transferors and not attributable
\nto the Issuer, such Other Transferors shall be solely liable for such
\nIndemnified Amounts.<\/p>\n
Section 4.2. INDEMNITY FOR TAXES, RESERVES AND EXPENSES.<\/p>\n
(a) If after the date hereof, the adoption of any Law or bank
\nregulatory guideline or any amendment or change in the administration,
\ninterpretation or application of any existing or future Law or bank regulatory
\nguideline by any Official Body charged with the administration, interpretation
\nor application thereof, or the compliance with any directive of any Official
\nBody (in the case of any bank regulatory guideline, whether or not having the
\nforce of Law):<\/p>\n
(1) shall subject any Indemnified Party (or its applicable
\nlending office) to any tax, duty or other charge (other than Excluded Taxes)
\nwith respect to this Agreement, the Security Agreement, the Note, the Net
\nInvestment, the Collateral or payments of amounts due hereunder, or shall change
\nthe basis of taxation of payments to any Indemnified Party of amounts payable in
\nrespect of this Agreement, the Net Investment, the Collateral, the maintenance
\nor financing of the Note or payments of amounts due hereunder or its obligation
\nto advance funds under the Liquidity Provider Agreement, the Credit Support
\nAgreement or otherwise in respect of this Agreement, the Security Agreement, the
\nNet Investment the Collateral or the maintenance or financing of the Note
\n(except for changes in the rate of federal, state or local general corporate,
\nfranchise, net income or other income or similar <\/p>\n
17<\/p>\n
tax imposed on such Indemnified Party by the jurisdiction in which such
\nIndemnified Party’s principal executive office is located);<\/p>\n
(2) shall impose, modify or deem applicable any reserve,
\nspecial deposit or similar requirement (including, without limitation, any
\nsuch requirement imposed by the Board of Governors of the Federal Reserve
\nSystem) against assets of, deposits with or for the account of, or credit
\nextended by, any Indemnified Party or shall impose on any Indemnified Party
\nor on the United States market for certificates of deposit or the London
\ninterbank market any other condition affecting this Agreement, the Security
\nAgreement, the Net Investment, the Collateral, the maintenance or financing
\nof the Note or payments of amounts due hereunder or its obligation to advance
\nfunds under the Liquidity Provider Agreement, the Credit Support Agreement or
\notherwise in respect of this Agreement, the Net Investment, the Collateral or
\nthe maintenance or financing of the Note; or<\/p>\n
(3) imposes upon any Indemnified Party any other expense
\n(including, without limitation, any loss of margin, reasonable attorneys’
\nfees and expenses, and expenses of litigation or preparation therefor in
\ncontesting any of the foregoing) with respect to this Agreement, the Security
\nAgreement, the Net Investment, the Collateral, the maintenance or financing
\nof the Note or payments of amounts due hereunder or its obligation to advance
\nfunds under the Liquidity Provider Agreement or the Credit Support Agreement
\nor otherwise in respect of this Agreement, the Net Investment, the Collateral
\nor the maintenance or financing of the Note; and the result of any of the
\nforegoing is to increase the cost to or to reduce the amount of any sum
\nreceived or receivable by such Indemnified Party with respect to this
\nAgreement, the Security Agreement, the Note, the Net Investment, the
\nCollateral, the obligations hereunder, the funding of any purchases
\nhereunder, the Liquidity Provider Agreement or the Credit Support Agreement,
\nby an amount reasonably deemed by such Indemnified Party to be material, then
\nwithin 10 days after demand by the Agent, the Issuer shall pay to the Agent
\nsuch additional amount or amounts as will compensate such Indemnified Party
\nfor such increased cost or reduction.<\/p>\n
(b) If any Indemnified Party shall have determined that after
\nthe date hereof, the adoption of any applicable Law or bank regulatory
\nguideline regarding capital adequacy, or any change therein, or any change in
\nthe interpretation or administration thereof by any Official Body, or any
\ndirective regarding capital adequacy (in the case of any bank regulatory
\nguideline, whether or not having the force of law) of any such Official Body,
\nhas or would have the effect of reducing the rate of return on capital of
\nsuch Indemnified Party (or its parent) as a consequence of such Indemnified
\nParty’s obligations hereunder or with respect hereto to a level below that
\nwhich such Indemnified Party (or its parent) could have achieved but for such
\nadoption, change, request or directive (taking into consideration its
\npolicies with respect to capital adequacy) by an amount reasonably deemed by
\nsuch Indemnified Party to be material, then from time to time, within 10 days
\nafter demand by the Agent, the Issuer shall pay to the Agent such additional
\namount or amounts as will compensate such Indemnified Party (or its parent)
\nfor such reduction.<\/p>\n
(c) The Agent or the Company will promptly notify the Issuer of
\nany event of which it has knowledge, occurring after the date hereof, which
\nwill entitle an Indemnified Party to compensation pursuant to this Section
\n4.2. A notice by the Agent claiming <\/p>\n
18<\/p>\n
compensation under this Section and setting forth the additional amount or
\namounts to be paid to it hereunder shall be conclusive in the absence of
\nmanifest error. In determining such amount, the Agent may use any reasonable
\naveraging and attributing methods.<\/p>\n
(d) Anything in this Section 4.2 to the contrary notwithstanding,
\nif the Company enters into agreements for the acquisition of interests in
\nreceivables from one or more Other Transferors, the Company shall allocate the
\nliability for any amounts under this Section 4.2 (“SECTION 4.2 COSTS”) ratably
\nto the Issuer and each Other Transferor; PROVIDED, HOWEVER, that if such Section
\n4.2 Costs are attributable to the Issuer and not attributable to any Other
\nTransferor, the Issuer shall be solely liable for such Section 4.2 Costs or if
\nsuch Section 4.2 Costs are attributable to Other Transferors and not
\nattributable to the Issuer, such Other Transferors shall be solely liable for
\nsuch Section 4.2 Costs.<\/p>\n
Section 4.3. OTHER COSTS, EXPENSES AND RELATED MATTERS.<\/p>\n
(a) The Issuer agrees, upon receipt of a written invoice, to pay
\nor cause to be paid, and to save the Company, the Bank Investors, the Collateral
\nAgent, the Agent and the Administrative Agent harmless against liability for the
\npayment of, all reasonable out-of-pocket expenses (including, without
\nlimitation, all reasonable attorneys’, accountant’s and other third parties’
\nfees and expenses, any filing fees and expenses incurred by officers or
\nemployees of the Company or any Bank Investor) incurred by or on behalf of the
\nCompany, any Bank Investor, the Collateral Agent, the Agent or the
\nAdministrative Agent (i) in connection with the negotiation, execution, delivery
\nand preparation of this Agreement, the Note and the Security Agreement and any
\nother Transaction Document and the transactions contemplated hereby and thereby;
\nPROVIDED, HOWEVER, that such attorney’s fees shall be limited to an agreed upon
\ncap and (ii) from time to time (a) relating to any amendments, waivers or
\nconsents under this Agreement, the Note, the Security Agreement and any other
\nTransaction Document, (b) arising in connection with the Agent’s, the Company’s,
\nany Bank Investor’s or any of their agent’s enforcement or preservation of
\nrights (including, without limitation, the perfection and protection of the
\nCollateral Agent’s security interest in the Collateral), or (c) arising in
\nconnection with any audit, dispute, disagreement, litigation or preparation for
\nlitigation involving this Agreement or any other Transaction Document (all of
\nsuch amounts, collectively, “TRANSACTION COSTS”).<\/p>\n
(b) The Issuer shall pay to the Agent, for the account of the
\nCompany or the Bank Investors, as applicable, on demand any Early Collection Fee
\ndue on account of the Company’s investment allocated to a funding period on a
\nday prior to the last day of its funding period.<\/p>\n
Section 4.4. TAXES. All payments made hereunder by the Issuer (a
\n“payor”) to the Company, any Bank Investor or the Agent (each, a “recipient”)
\nshall be made free and clear of and without deduction for any present or
\nfuture income, excise, stamp or franchise taxes and any other taxes, fees,
\nduties, withholdings or other charges of any nature whatsoever imposed by any
\ntaxing authority on any recipient (or any assignee of such parties) (such
\nnon-excluded items being called “Taxes”), but excluding franchise taxes and
\ntaxes imposed on or measured by the recipient’s net income or gross receipts
\n(“Excluded Taxes”). In the event that any withholding or deduction from any
\npayment made by the payor hereunder is required in respect of any Taxes, then
\nsuch payor shall:<\/p>\n
19<\/p>\n
(a) pay directly to the relevant authority the full amount
\nrequired to be so withheld or deducted;<\/p>\n
(b) promptly forward to the Agent an official receipt or other
\ndocumentation satisfactory to the Agent evidencing such payment to such
\nauthority; and<\/p>\n
(c) pay to the recipient such additional amount or amounts as
\nis necessary to ensure that the net amount actually received by the recipient
\nwill equal the full amount such recipient would have received had no such
\nwithholding or deduction been required.<\/p>\n
Moreover, if any Taxes are directly asserted against any
\nrecipient with respect to any payment received by such recipient hereunder,
\nthe recipient may pay such Taxes and the payor will promptly pay such
\nadditional amounts (including any penalties, interest or expenses) as shall
\nbe necessary in order that the net amount received by the recipient after the
\npayment of such Taxes (including any Taxes on such additional amount) shall
\nequal the amount such recipient would have received had such Taxes not been
\nasserted.<\/p>\n
If the payor fails to pay any Taxes when due to the
\nappropriate taxing authority or fails to remit to the recipient the required
\nreceipts or other required documentary evidence, the payor shall indemnify
\nthe recipient for any incremental Taxes, interest, or penalties that may
\nbecome payable by any recipient as a result of any such failure.<\/p>\n
ARTICLE V<\/p>\n
THE AGENT; BANK COMMITMENT<\/p>\n
Section 5.1. AUTHORIZATION AND ACTION. The Company and each Bank
\nInvestor hereby appoints and authorizes the Agent to act as its agent under
\nthis Agreement and the other Transaction Documents with such powers and
\ndiscretion as are specifically delegated to the Agent by the terms hereof and
\nthereof, together with such powers as are reasonably incidental thereto. The
\nAgent (which term as used in this sentence and in Section 5.5 and the first
\nsentence of Section 5.6 hereof shall include its affiliates and its own and
\nits affiliates’ officers, directors, employees, and agents): (a) shall not
\nhave any duties or responsibilities except those expressly set forth in this
\nAgreement and shall not be a trustee or fiduciary for the Company or any Bank
\nInvestor; (b) shall not be responsible to the Company or any Bank Investor
\nfor any recital, statement, representation, or warranty (whether written or
\noral) made in or in connection with any Transaction Document or any
\ncertificate or other document referred to or provided for in, or received by
\nany of them under, any Transaction Document, or for the value, validity,
\neffectiveness, genuineness, enforceability, or sufficiency of any Transaction
\nDocument, or any other document referred to or provided for therein or for
\nany failure by any of the Issuer, AmeriCredit, AFC II or the Collection Agent
\nor any other Person to perform any of its obligations thereunder; (c) shall
\nnot be responsible for or have any duty to ascertain, inquire into, or verify
\nthe performance or observance of any covenants or agreements by any of the
\nIssuer, AmeriCredit, AFC II or the Collection Agent or the satisfaction of
\nany condition or to inspect the property (including the books and records) of
\nany of the Issuer, AmeriCredit, AFC II or the Collection Agent or any of
\ntheir Subsidiaries or affiliates; (d) shall not be required to initiate or
\nconduct any litigation or collection proceedings under any Transaction
\nDocument; and (e) shall <\/p>\n
20<\/p>\n
not be responsible for any action taken or omitted to be taken by it under or
\nin connection with any Transaction Document, except for its own gross
\nnegligence or willful misconduct. The Agent may employ agents and
\nattorneys-in-fact and shall not be responsible for the negligence or
\nmisconduct of any such agents or attorneys-in-fact selected by it with
\nreasonable care.<\/p>\n
Section 5.2. AGENT’S RELIANCE, ETC. The Agent shall be entitled to
\nrely upon any certification, notice, instrument, writing, or other
\ncommunication (including, without limitation, any thereof by telephone or
\ntelecopy) believed by it to be genuine and correct and to have been signed,
\nsent or made by or on behalf of the proper Person or Persons, and upon advice
\nand statements of legal counsel (including counsel for any of the Issuer,
\nAmeriCredit, AFC II or the Collection Agent), independent accountants, and
\nother experts selected by the Agent. As to any matters not expressly provided
\nfor by this Agreement, the Agent shall not be required to exercise any
\ndiscretion or take any action, but shall be required to act or to refrain
\nfrom acting (and shall be fully protected in so acting or refraining from
\nacting) upon the instructions of the Majority Investors, and such
\ninstructions shall be binding on the Company and all of the Bank Investors;
\nPROVIDED, HOWEVER, that the Agent shall not be required to take any action
\nthat exposes the Agent to personal liability or that is contrary to any
\nTransaction Document or applicable law or unless it shall first be
\nindemnified to its satisfaction by the Bank Investors against any and all
\nliability and expense which may be incurred by it by reason of taking any
\nsuch action.<\/p>\n
Section 5.3. TERMINATION EVENT OR POTENTIAL TERMINATION EVENT. The
\nAgent shall not be deemed to have knowledge or notice of the occurrence of a
\nPotential Termination Event or a Termination Event unless the Agent has
\nreceived written notice from the Company, a Bank Investor or the Issuer
\nspecifying such Potential Termination Event or Termination Event and stating
\nthat such notice is a “Notice of Termination Event or Potential Termination
\nEvent”. In the event that the Agent receives such a notice of the occurrence
\nof a Potential Termination Event or Termination Event, the Agent shall give
\nprompt notice thereof to the Company and the Bank Investors. The Agent shall
\n(subject to Section 5.2 hereof) take such action with respect to such
\nPotential Termination Event or Termination Event as shall reasonably be
\ndirected by the Majority Investors, PROVIDED that, unless and until the Agent
\nshall have received such directions, the Agent may (but shall not be
\nobligated to) take such action, or refrain from taking such action, with
\nrespect to such Potential Termination Event or Termination Event as it shall
\ndeem advisable in the best interest of the Company and the Bank Investors.<\/p>\n
Section 5.4. RIGHTS AS BANK INVESTOR. With respect to its Commitment,
\nBank of America (and any successor acting as Agent) in its capacity as a Bank
\nInvestor hereunder shall have the same rights and powers hereunder as any
\nother Bank Investor and may exercise the same as though it were not acting as
\nthe Agent, and the term “Bank Investor” or “Bank Investors” shall, unless the
\ncontext otherwise indicates, include the Agent in its individual capacity.
\nBank of America (and any successor acting as Agent) and its affiliates may
\n(without having to account therefor to the Company or any Bank Investor)
\naccept deposits from, lend money to, make investments in, provide services
\nto, and generally engage in any kind of lending, trust, or other business
\nwith any of the Issuer, AmeriCredit, AFC II and the Collection Agent or any
\nof their Subsidiaries or affiliates as if it were not acting as Agent, and
\nBank of America (and any successor acting as Agent) and its affiliates may
\naccept fees and other consideration from any of the Issuer, AmeriCredit, AFC
\nII and the Collection Agent or any of their Subsidiaries or <\/p>\n
21<\/p>\n
Affiliates for services in connection with this Agreement or otherwise
\nwithout having to account for the same to the Company or any Bank Investor.<\/p>\n
Section 5.5. INDEMNIFICATION OF THE AGENT. The Bank Investors agree to
\nindemnify the Agent (to the extent not reimbursed by the Issuer), ratably in
\naccordance with their Pro Rata Shares, from and against any and all
\nliabilities, obligations, losses, damages, penalties, actions, judgments,
\nsuits, costs, expenses (including attorneys’ fees), or disbursements of any
\nkind or nature whatsoever which may be imposed on, incurred by, or asserted
\nagainst the Agent (including by the Company or any Bank Investor) in any way
\nrelating to or arising out of this Agreement or any other Transaction
\nDocument or the transactions contemplated thereby or any action taken or
\nomitted by the Agent under this Agreement or any other Transaction Document,
\nPROVIDED that no Bank Investor shall be liable for any of the foregoing to
\nthe extent they arise from the gross negligence or willful misconduct of the
\nPerson indemnified. Without limitation of the foregoing, the Bank Investors
\nagree to reimburse the Agent, ratably in accordance with their Pro Rata
\nShares, promptly upon demand for any out-of-pocket expenses (including
\nattorneys’ fees) incurred by the Agent in connection with the administration,
\nmodification, amendment or enforcement (whether through negotiations, legal
\nproceedings or otherwise) of, or legal advice in respect of rights or
\nresponsibilities under, this Agreement and the other Transaction Documents,
\nto the extent that such expenses are incurred in the interests of or
\notherwise in respect of the Bank Investors hereunder and\/or thereunder and to
\nthe extent that the Agent is not reimbursed for such expenses by the Issuer.
\nThe agreements contained in this Section shall survive payment in full of the
\nNet Investment and all other amounts payable under this Agreement.<\/p>\n
Section 5.6. NON-RELIANCE. Each of the Company and each Bank Investor
\nagrees that it has, independently and without reliance on the Agent or the
\nCompany or any Bank Investor, and based on such documents and information as
\nit has deemed appropriate, made its own credit analysis of the Receivables,
\nthe Contracts, the Issuer, AmeriCredit, AFC II and the Collection Agent and
\ntheir respective Subsidiaries and decision to enter into this Agreement and
\nthat it will, independently and without reliance upon the Agent, the Company
\nor any Bank Investor, and based on such documents and information as it shall
\ndeem appropriate at the time, continue to make its own analysis and decisions
\nin taking or not taking action under the Transaction Documents. Except for
\nnotices, reports, and other documents and information expressly required to
\nbe furnished to the Company and the Bank Investors by the Agent hereunder,
\nthe Agent shall not have any duty or responsibility to provide the Company or
\nany Bank Investor with any credit or other information concerning the
\naffairs, financial condition, or business of any of the Issuer, AmeriCredit,
\nAFC II or the Collection Agent or any of their respective Subsidiaries or
\naffiliates that may come into the possession of the Agent or any of its
\naffiliates.<\/p>\n
Section 5.7. RESIGNATION OF AGENT. The Agent may resign at any time by
\ngiving notice thereof to the Company, the Bank Investors and the Issuer. Upon
\nany such resignation, the Majority Investors shall have the right to appoint
\na successor Agent. If no successor Agent shall have been so appointed by the
\nMajority Investors and shall have accepted such appointment within thirty
\n(30) days after the retiring Agent’s giving of notice of resignation, then
\nthe retiring Agent may, on behalf of the Company and the Bank Investors,
\nappoint a successor Agent which shall be a commercial bank organized under
\nthe laws of the United States having combined capital and surplus of at least
\n$100,000,000. Upon the acceptance of any appointment as Agent <\/p>\n
22<\/p>\n
hereunder by a successor, such successor shall thereupon succeed to and
\nbecome vested with all the rights, powers, discretion, privileges, and duties
\nof the retiring Agent, and the retiring Agent shall be discharged from its
\nduties and obligations hereunder. After any retiring Agent’s resignation
\nhereunder as Agent, the provisions of this Article V shall continue in effect
\nfor its benefit in respect of any actions taken or omitted to be taken by it
\nwhile it was acting as Agent.<\/p>\n
Section 5.8. PAYMENTS BY THE AGENT. Unless specifically allocated to a
\nBank Investor pursuant to the terms of this Agreement, all amounts received
\nby the Agent on behalf of the Bank Investors shall be paid by the Agent to
\nthe Bank Investors (at their respective accounts specified in their
\nrespective Assignment and Assumption Agreements) in accordance with their
\nrespective related pro rata interests in the Net Investment on the Business
\nDay received by the Agent, unless such amounts are received after 12:00 noon
\non such Business Day, in which case the Agent shall use its reasonable
\nefforts to pay such amounts to the Bank Investors on such Business Day, but,
\nin any event, shall pay such amounts to the Bank Investors in accordance with
\ntheir respective related pro rata interests in the Net Investment not later
\nthan the following Business Day.<\/p>\n
Section 5.9. BANK COMMITMENT; ASSIGNMENT TO BANK INVESTORS.<\/p>\n
(a) BANK COMMITMENT. At any time on or prior to the Commitment
\nTermination Date, in the event that the Company does not effect the Initial
\nFunding or a Subsequent Funding as requested under Section 2.1, then at any
\ntime, the Issuer shall have the right to require the Company to assign its
\ninterest in the Note and the Net Investment in whole to the Bank Investors
\npursuant to this Section 5.9(a). In addition, at any time on or prior to the
\nCommitment Termination Date (i) upon the occurrence of a Termination Event
\nthat results in the Termination Date or (ii) in the event that the Company
\nelects to give notice to the Issuer of an Investment Termination Date, the
\nIssuer hereby requests and directs that the Company assign its interest in
\nthe Note and the Net Investment in whole to the Bank Investors pursuant to
\nthis Section 5.9(a) and the Issuer hereby agrees to pay the amounts described
\nin Section 5.9(c) below. No further documentation or action on the part of
\nthe Company shall be required to exercise the rights set forth in the
\nimmediately preceding sentence, other than, in the case of clause (i) of such
\nsentence, receipt of notice by the Bank Investors from the Agent that a
\nTermination Date has occurred or, in the case of clause (ii) of such
\nsentence, the giving of the notice set forth in such clause and the delivery
\nby the Agent of a copy of such notice to each Bank Investor (the date of the
\nreceipt of a notice referred to in such clauses being the “EFFECTIVE DATE”).
\nEach Bank Investor hereby agrees, unconditionally and irrevocably and under
\nall circumstances, without setoff, counterclaim or defense of any kind, to
\npay the full amount of its Assignment Amount on such Effective Date to the
\nCompany in immediately available funds to an account designated by the Agent.
\nUpon payment of its Assignment Amount, each Bank Investor shall acquire its
\nPro Rata Share of its interest in the Note and the Net Investment and shall
\nassume its respective portion of the Company’s obligations hereunder, and the
\nCompany shall be released from such portion of such obligations. If, by 2:00
\nP.M. (New York time) on the Effective Date, one or more Bank Investors (each,
\na “DEFAULTING BANK INVESTOR”, and each Bank Investor other than any
\nDefaulting Bank Investor being referred to as a “NON-DEFAULTING BANK
\nINVESTOR”) fails to pay its Assignment Amount (the aggregate amount not so
\nmade available to the Company being herein called the “ASSIGNMENT AMOUNT
\nDEFICIT”), then the Agent shall, by no later than 2:30 P.M. (New York time)
\non the Effective Date, instruct each Non-Defaulting Bank Investor to pay, by
\nno later <\/p>\n
23<\/p>\n
than 3:00 P.M. (New York time) on the Effective Date, in immediately
\navailable funds, to the account designated by the Company, an amount equal to
\nthe lesser of (x) such Non-Defaulting Bank Investor’s proportionate share
\n(based upon the relative Commitments of the Non-Defaulting Bank Investors) of
\nthe Assignment Amount Deficit and (y) its unused Commitment. A Defaulting
\nBank Investor shall forthwith, upon demand, pay to the Agent for the ratable
\nbenefit of the Non-Defaulting Bank Investors all amounts paid by each
\nNon-Defaulting Bank Investor on behalf of such Defaulting Bank Investor,
\ntogether with interest thereon for each day from the date a payment was made
\nby a Non-Defaulting Bank Investor until the date such Non-Defaulting Bank
\nInvestor has been paid such amounts in full at a rate per annum equal to the
\nrate determined in accordance with clause (i) of the definition of “Base
\nRate” plus two percent (2%). In addition, if, after giving effect to the
\nprovisions of the immediately preceding sentence, any Assignment Amount
\nDeficit continues to exist, each such Defaulting Bank Investor shall pay
\ninterest to the Agent on such Defaulting Bank Investor’s portion of such
\nremaining Assignment Amount Deficit, at a rate per annum equal to the rate
\ndetermined in accordance with clause (i) of the definition of “Base Rate”
\nplus two percent (2%), for each day from the Effective Date until the date
\nsuch Defaulting Bank Investor shall pay its portion of such remaining
\nAssignment Amount Deficit in full to the Company. Upon any assignment by the
\nCompany to the Bank Investors contemplated hereunder, the Company shall cease
\nto make any additional advances to the Issuer hereunder.<\/p>\n
(b) ASSIGNMENT BY A BANK INVESTOR.<\/p>\n
(i) No Bank Investor may assign all or any portion of its
\nCommitment or interest in the Note and the Net Investment and its rights and
\nobligations hereunder to any Person unless approved in writing by the Issuer
\n(which approval shall not be unreasonably withheld), the Administrative
\nAgent, on behalf of the Company, and the Agent. In connection with any such
\nassignment by a Bank Investor to another Person, the assignor shall deliver
\nto the assignee an Assignment and Assumption Agreement, duly executed,
\nassigning to such assignee all or any portion of (A) such assignor’s
\nCommitment and other obligations hereunder and (B) such assignor’s pro rata
\ninterest in the Note and Net Investment and other rights hereunder, and such
\nassignor shall promptly execute and deliver all further instruments and
\ndocuments, and take all further action, that the assignee may reasonably
\nrequest, in order to protect, or more fully evidence the assignee’s right,
\ntitle and interest in and to such interest and to enable the Agent, on behalf
\nof such assignee, to exercise or enforce any rights hereunder and under the
\nother Transaction Documents to which such assignor is or, immediately prior
\nto such assignment, was a party. Upon any such assignment, (i) the assignee
\nshall have all of the rights and obligations of the assignor hereunder and
\nunder the other Transaction Documents to which such assignor is or,
\nimmediately prior to such assignment, was a party with respect to such
\nassignor’s Commitment and interest in the Note and Net Investment for all
\npurposes of this Agreement and under the other Transaction Documents to which
\nsuch assignor is or, immediately prior to such assignment, was a party and
\n(ii) the assignor shall have no further obligations with respect to the
\nportion of its Commitment hereunder which has been assigned and shall
\nrelinquish its rights with respect to the portion of its interest in the Note
\nand the Net Investment which has been assigned for all purposes of this
\nAgreement and under the other Transaction Documents to which such assignor is
\nor, immediately prior to such assignment, was a party. No such assignment
\nshall be effective unless a fully executed copy of the related Assignment and
\nAssumption Agreement shall be delivered to the Agent and the Issuer. All
\ncosts <\/p>\n
24<\/p>\n
and expenses of the Agent incurred in connection with any assignment
\nhereunder shall be borne by the Issuer. No Bank Investor shall enter into any
\nAssignment and Assumption Agreement hereunder without also simultaneously
\nassigning an equal portion of its interest in the Liquidity Provider
\nAgreement.<\/p>\n
(ii) By executing and delivering an Assignment and
\nAssumption Agreement, the assignor and assignee thereunder confirm to and
\nagree with each other and the other parties hereto as follows: (i) other than
\nas provided in such Assignment and Assumption Agreement, the assignor makes
\nno representation or warranty and assumes no responsibility with respect to
\nany statements, warranties or representations made in or in connection with
\nthis Agreement, the other Transaction Documents or any other instrument or
\ndocument furnished pursuant hereto or thereto or the execution, legality,
\nvalidity, enforceability, genuineness, sufficiency or value or this
\nAgreement, the other Transaction Documents or any such other instrument or
\ndocument; (ii) the assignor makes no representation or warranty and assumes
\nno responsibility with respect to the financial condition of the Issuer,
\nAmeriCredit, AFC II or the Collection Agent or the performance or observance
\nby the Issuer, AmeriCredit, AFC II or the Collection Agent of any of their
\nrespective obligations under this Agreement, the Master Receivables Purchase
\nAgreement, the other Transaction Documents or any other instrument or
\ndocument furnished pursuant hereto; (iii) such assignee confirms that it has
\nreceived a copy of this Agreement, the Master Receivables Purchase Agreement,
\nand such other instruments, documents and information as it has deemed
\nappropriate to make its own credit analysis and decision to enter into such
\nAssignment and Assumption Agreement and to purchase such interest; (iv) such
\nassignee will, independently and without reliance upon the Agent, or any of
\nits Affiliates, or the assignor and based on such agreements, documents and
\ninformation as it shall deem appropriate at the time, continue to make its
\nown credit decisions in taking or not taking action under this Agreement and
\nthe other Transaction Documents; (v) such assignee appoints and authorizes
\nthe Agent to take such action as agent on its behalf and to exercise such
\npowers under this Agreement, the other Transaction Documents and any other
\ninstrument or document furnished pursuant hereto or thereto as are delegated
\nto the Agent by the terms hereof or thereof, together with such powers as are
\nreasonably incidental thereto and to enforce its respective rights and
\ninterests in and under this Agreement, the other Transaction Documents, the
\nReceivables, the Contracts and the Related Security; (vi) such assignee
\nagrees that it will perform in accordance with their terms all of the
\nobligations which by the terms of this Agreement and the other Transaction
\nDocuments are required to be performed by it as the assignee of the assignor;
\nand (vii) such assignee agrees that it will not institute against the Company
\nor any Conduit Assignee any proceeding of the type referred to in Section 6.9
\nprior to the date which is one year and one day after the payment in full of
\nall Commercial Paper issued by the Company or any Conduit Assignee.<\/p>\n
(c) ISSUER’S OBLIGATION TO PAY CERTAIN AMOUNTS; ADDITIONAL
\nASSIGNMENT AMOUNT. The Issuer shall pay to the Agent, for the account of the
\nCompany, in connection with any assignment by the Company to the Bank
\nInvestors pursuant to Section 5.9(a), an aggregate amount equal to all
\nDiscount to accrue through the end of each outstanding funding period plus
\nall other Aggregate Unpaids (other than the Net Investment). If the Issuer
\nfails to make payment of such amounts at or prior to the time of assignment
\nby the Company to the Bank Investors, such amount shall be paid by the Bank
\nInvestors (in accordance with their respective Pro Rata Shares) to the
\nCompany as additional consideration for the interests assigned <\/p>\n
25<\/p>\n
to the Bank Investors and the amount of the “Net Investment” hereunder held
\nby the Bank Investors shall be increased by an amount equal to the additional
\namount so paid by the Bank Investors.<\/p>\n
(d) ADMINISTRATION OF AGREEMENT AFTER ASSIGNMENT BY COMPANY TO
\nBANK INVESTORS. After any assignment by the Company to the Bank Investors
\npursuant to Section 5.9(a) (and the payment of all amounts owing to the
\nCompany in connection therewith), all rights of the Administrative Agent and
\nthe Collateral Agent set forth herein shall be deemed to be afforded to the
\nAgent on behalf of the Bank Investors instead of either such party.<\/p>\n
(e) PAYMENTS AFTER ASSIGNMENT BY COMPANY TO BANK INVESTORS. After
\nany assignment by the Company to the Bank Investors pursuant to Section 5.9(a),
\nall payments to be made hereunder by the Issuer to the Company shall be made to
\nthe Agent’s account as such account shall have been notified to the Issuer. In
\nthe event that the aggregate of the Assignment Amounts paid by the Bank
\nInvestors pursuant to Section 5.9(a) is less than the Net Investment of the
\nCompany on the date of such assignment, then to the extent payments made
\nhereunder in respect of the Net Investment exceed the aggregate of the
\nAssignment Amounts, such excess shall be remitted by the Agent to the Company.<\/p>\n
(f) DOWNGRADE OF BANK INVESTOR. If at any time prior to any
\nassignment by the Company to the Bank Investors as contemplated pursuant to
\nSection 5.9(a), the short term debt rating of any Bank Investor shall be
\n“A-2” or “P-2” from Standard & Poor’s or Moody’s, respectively, with negative
\ncredit implications, such Bank Investor, upon request of the Agent, shall,
\nwithin 30 days of such request, assign its rights and obligations hereunder
\nto another financial institution (which institution’s short term debt shall
\nbe rated at least “A-2” and “P-2” from Standard & Poor’s and Moody’s,
\nrespectively, and which shall not be so rated with negative credit
\nimplications and which is acceptable to the Company and the Agent). If the
\nshort term debt rating of a Bank Investor shall be “A-3” or “P-3”, or lower,
\nfrom Standard & Poor’s or Moody’s, respectively (or such rating shall have
\nbeen withdrawn by Standard & Poor’s or Moody’s), such Bank Investor, upon
\nrequest of the Agent, shall, within five (5) Business Days of such request,
\nassign its rights and obligations hereunder to another financial institution
\n(which institution’s short term debt shall be rated at least “A-2” and “P-2”
\nfrom Standard & Poor’s and Moody’s, respectively, and which shall not be so
\nrated with negative credit implications and which is acceptable to the
\nCompany and the Agent). In either such case, if any such Bank Investor shall
\nnot have assigned its rights and obligations under this Agreement within the
\napplicable time period described above, the Company shall have the right to
\nrequire such Bank Investor to pay to the Agent an amount equal to such Bank
\nInvestor’s Commitment for deposit by the Agent into an account, in the name
\nof the Agent, which shall be in satisfaction of such Bank Investor’s
\nobligations to make Subsequent Fundings and to pay its Assignment Amount upon
\nan assignment from the Company in accordance with Section 5.9(a) hereof. The
\namount on deposit in such account shall be invested by the Agent in Eligible
\nInvestments and such Eligible Investments shall be selected by the Agent in
\nits sole discretion. The Agent shall remit to such Bank Investor, monthly,
\nthe income thereon. Nothing in the three preceding sentences shall affect or
\ndiminish in any way any such downgraded Bank Investor’s Commitment to the
\nIssuer or the Company or such downgraded Bank Investor’s other obligations
\nand liabilities hereunder and under the other Transaction Documents.<\/p>\n
26<\/p>\n
ARTICLE VI<\/p>\n
MISCELLANEOUS<\/p>\n
Section 6.1. TERM OF AGREEMENT. This Agreement shall terminate on the
\ndate following the Termination Date upon which the Net Investment has been
\nreduced to zero, all accrued Discount and Servicing Fees have been paid in
\nfull and all other Aggregate Unpaids have been paid in full, in each case, in
\ncash; PROVIDED, HOWEVER, that (i) the rights and remedies of the Agent, the
\nCompany, the Bank Investors and the Administrative Agent with respect to any
\nrepresentation and warranty made or deemed to be made by the Issuer pursuant
\nto this Agreement, (ii) the indemnification and payment provisions of Article
\nIV, and (iii) the agreement set forth in Section 6.9 hereof, shall be
\ncontinuing and shall survive any termination of this Agreement.<\/p>\n
Section 6.2. WAIVERS; AMENDMENTS.<\/p>\n
(a) No failure or delay on the part of the Agent, the Company,
\nthe Administrative Agent or any Bank Investor in exercising any power, right
\nor remedy under this Agreement shall operate as a waiver thereof, nor shall
\nany single or partial exercise of any such power, right or remedy preclude
\nany other further exercise thereof or the exercise of any other power, right
\nor remedy. The rights and remedies herein provided shall be cumulative and
\nnonexclusive of any rights or remedies provided by law.<\/p>\n
(b) Any provision of this Agreement or any other Transaction
\nDocument may be amended or waived if, but only if, such amendment or waiver
\nis in writing and is signed by the Issuer, the Collection Agent, the Company
\nand the Majority Investors (and, if Article V or the rights or duties of the
\nAgent are affected thereby, by the Agent); PROVIDED that no such amendment or
\nwaiver shall, unless signed by each Bank Investor directly affected thereby,
\n(i) increase the Commitment of a Bank Investor, (ii) reduce the Net
\nInvestment or rate of interest to accrue thereon or any fees or other amounts
\npayable hereunder, (iii) postpone any date fixed for the payment of any
\nscheduled distribution in respect of the Net Investment or interest with
\nrespect thereto or any fees or other amounts payable hereunder or for
\ntermination of any Commitment, (iv) change the percentage of the Commitments
\nof Bank Investors which shall be required for the Bank Investors or any of
\nthem to take any action under this section or any other provision of this
\nAgreement, (v) release all or substantially all of the property with respect
\nto which a security or ownership interest therein has been granted hereunder
\nto the Agent or the Bank Investors or (vi) extend or permit the extension of
\nthe Commitment Termination Date. In the event the Agent requests the
\nCompany’s or a Bank Investor’s consent pursuant to the foregoing provisions
\nand the Agent does not receive a consent (either positive or negative) from
\nthe Company or such Bank Investor within 10 Business Days of the Company’s or
\nBank Investor’s receipt of such request, then the Company or such Bank
\nInvestor (and its percentage interest hereunder) shall be disregarded in
\ndetermining whether the Agent shall have obtained sufficient consent
\nhereunder.<\/p>\n
Section 6.3. NOTICES. Except as provided below, all communications and
\nnotices provided for hereunder shall be in writing (including telecopy or
\nelectronic facsimile transmission or similar writing) and shall be given to
\nthe other party at its address or telecopy <\/p>\n
27<\/p>\n
number set forth below or at such other address or telecopy number as such
\nparty may hereafter specify for the purposes of notice to such party. Each
\nsuch notice or other communication shall be effective (i) if given by
\ntelecopy, when such telecopy is transmitted to the telecopy number specified
\nin this Section 6.3 and confirmation is received, (ii) if given by mail,
\nthree (3) Business Days following such posting, if postage prepaid, or if
\nsent via U.S. certified or registered mail, (iii) if given by overnight
\ncourier, one (1) Business Day after deposit thereof with a national overnight
\ncourier service, or (iv) if given by any other means, when received at the
\naddress specified in this Section 6.3. However, anything in this Section 6.3
\nto the contrary notwithstanding, the Issuer hereby authorizes the Company to
\neffect Subsequent Fundings, funding period and interest rate selections based
\non telephonic notices made by any Person which the Company in good faith
\nbelieves to be acting on behalf of the Issuer. The Issuer agrees to deliver
\npromptly to the Company a written confirmation of each telephonic notice
\nsigned by an authorized officer of Issuer. However, the absence of such
\nconfirmation shall not affect the validity of such notice. If the written
\nconfirmation differs in any material respect from the action taken by the
\nCompany, the records of the Company shall govern absent manifest error.<\/p>\n
If to the Company:<\/p>\n
Kitty Hawk Funding Corporation
\n c\/o Lord Securities Corporation
\n 2 Wall Street
\n New York, New York 10005
\n Attention: Richard Taiano
\n Telephone: (212) 346-9006
\n Telecopy: (212) 346-9012
\n (with a copy to the Administrative Agent)<\/p>\n
If to the Issuer:<\/p>\n
AmeriCredit BOA TRUST
\n c\/o Bankers Trust (Delaware)
\n E.A. Delle Donne Corporate Center
\n Montgomery Building
\n 1011 Centre Road, Suite 200
\n Wilmington, Delaware 19805
\n Attention: Corporate Trust Administration
\n Telephone: (302) 636-3305
\n Telecopy: (302) 636-3222
\n Payment Information:
\n [BANK]
\n ABA
\n ———-
\n Account
\n ————
\n Reference
\n —————<\/p>\n
28<\/p>\n
With a copy to:<\/p>\n
Bankers Trust Company
\n 4 Albany Street
\n New York, New York 10006
\n Attention: Asset Backed Finance Unit<\/p>\n
and a copy to:<\/p>\n
AmeriCredit Financial Services, Inc.
\n 801 Cherry Street
\n Suite 3900
\n Fort Worth, Texas 76102
\n Telephone: (817) 302-7022
\n Telecopy: (817) 302-7942<\/p>\n
If to the Agent or the Administrative Agent:<\/p>\n
Bank of America, N.A.<\/p>\n
Bank of America Corporate Center, 10th Floor
\n Charlotte, North Carolina 28255
\n Attention: Banc of America Securities LLC
\n Global Asset Backed Securitization Group
\n Portfolio Management
\n Telephone: (704) 386-7922
\n Telecopy: (704) 388-9169<\/p>\n
Payment Information:<\/p>\n
Bank of America, N.A.
\n ABA 053-000-196
\n for the account of Bank of America Charlotte
\n Account No. 109360165000
\n Attn.: Camille Zerbinos<\/p>\n
Section 6.4. GOVERNING LAW; SUBMISSION TO JURISDICTION; INTEGRATION.<\/p>\n
(a) THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
\nACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO THE
\nCONFLICTS OF LAW PRINCIPLES THEREOF. THE ISSUER HEREBY SUBMITS TO THE
\nNONEXCLUSIVE JURISDICTION OF THE UNITED STATES DISTRICT COURT FOR THE
\nSOUTHERN DISTRICT OF NEW YORK AND OF ANY NEW YORK STATE COURT SITTING IN THE
\nCITY OF NEW YORK FOR PURPOSES OF ALL LEGAL PROCEEDINGS ARISING OUT OF OR
\nRELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY. The
\nIssuer hereby irrevocably waives, to the fullest extent it may effectively do
\nso, any objection which it may now <\/p>\n
29<\/p>\n
or hereafter have to the laying of the venue of any such proceeding brought
\nin such a court and any claim that any such proceeding brought in such a
\ncourt has been brought in an inconvenient forum. Nothing in this Section 6.4
\nshall affect the right of the Company to bring any action or proceeding
\nagainst the Issuer or its property in the courts of other jurisdictions.<\/p>\n
(b) EACH OF THE PARTIES HERETO HEREBY WAIVES ANY RIGHT TO HAVE
\nA JURY PARTICIPATE IN RESOLVING ANY DISPUTE, WHETHER SOUNDING IN CONTRACT,
\nTORT OR OTHERWISE AMONG ANY OF THEM ARISING OUT OF, CONNECTED WITH, RELATING
\nTO OR INCIDENTAL TO THE RELATIONSHIP BETWEEN THEM IN CONNECTION WITH THIS
\nAGREEMENT OR THE OTHER TRANSACTION DOCUMENTS.<\/p>\n
(c) This Agreement contains the final and complete integration
\nof all prior expressions by the parties hereto with respect to the subject
\nmatter hereof and shall constitute the entire Agreement among the parties
\nhereto with respect to the subject matter hereof superseding all prior oral
\nor written understandings.<\/p>\n
(d) The Issuer hereby appoints Corporation Service Company,
\nlocated at 80 State Street, Albany, New York 12207-2543 as the authorized
\nagent upon whom process may be served in any action arising out of or based
\nupon this Agreement, the other Transaction Documents to which the Issuer is a
\nparty or the transactions contemplated hereby or thereby that may be
\ninstituted in the United States District Court for the Southern District of
\nNew York and of any New York State court sitting in The City of New York by
\nthe Company, the Agent, any Bank Investor, the Administrative Agent, the
\nCollateral Agent or any assignee of any of them.<\/p>\n
Section 6.5. COUNTERPARTS. This Agreement may be executed in any
\nnumber of counterparts and by different parties hereto in separate
\ncounterparts, each of which when so executed shall be deemed to be an
\noriginal and all of which when taken together shall constitute one and the
\nsame Agreement.<\/p>\n
Section 6.6. SUCCESSORS AND ASSIGNS.<\/p>\n
(a) This Agreement shall be binding on the parties hereto and
\ntheir respective successors and assigns; PROVIDED, HOWEVER, that the Issuer
\nmay not assign any of its rights or delegate any of its duties hereunder or
\nunder the Master Receivables Purchase Agreement or under any of the other
\nTransaction Documents to which it is a party without the prior written
\nconsent of the Agent except as may be otherwise expressly provided in the
\nMaster Receivables Purchase Agreement or the other Transaction Documents. No
\nprovision of this Agreement shall in any manner restrict the ability of the
\nCompany or any Bank Investor to assign, participate, grant security interests
\nin, or otherwise transfer any portion of the Note.<\/p>\n
(b) Without limiting the foregoing, the Company may, from time to
\ntime, with prior or concurrent notice to the Issuer and the Collection Agent, in
\none transaction or a series of transactions, assign all or a portion of the Note
\nand <\/p>\n
30<\/p>\n
the Net Investment and its rights and obligations under this Agreement and
\nany other Transaction Documents to which it is a party to a Conduit Assignee.
\nUpon and to the extent of such assignment by the Company to a Conduit
\nAssignee, (i) such Conduit Assignee shall be the owner of the assigned
\nportion of the Note and the Net Investment, (ii) the related administrative
\nagent for such Conduit Assignee will act as the Administrative Agent for such
\nConduit Assignee, with all corresponding rights and powers, express or
\nimplied, granted to the Administrative Agent hereunder or under the other
\nTransaction Documents, (iii) such Conduit Assignee and its liquidity support
\nprovider(s) and credit support provider(s) and other related parties shall
\nhave the benefit of all the rights and protections provided to the Company
\nand its Liquidity Provider(s) and Credit Support Provider(s), respectively,
\nherein and in the other Transaction Documents (including, without limitation,
\nany limitation on recourse against such Conduit Assignee or related parties,
\nany agreement not to file or join in the filing of a petition to commence an
\ninsolvency proceeding against such Conduit Assignee, and the right to assign
\nto another Conduit Assignee as provided in this paragraph), (iv) such Conduit
\nAssignee shall assume all (or the assigned or assumed portion) of the
\nCompany’s obligations, if any, hereunder or any other Transaction Document,
\nand the Company shall be released from such obligations, in each case to the
\nextent of such assignment, and the obligations of the Company and such
\nConduit Assignee shall be several and not joint, (v) all distributions in
\nrespect of the Net Investment shall be made to the applicable agent or
\nadministrative agent, as applicable, on behalf of the Company and such
\nConduit Assignee on a pro rata basis according to their respective interests,
\n(vi) the definition of the term “CP Rate” with respect to the portion of the
\nNet Investment funded with commercial paper issued by the Company from time
\nto time shall be determined in the manner set forth in the definition of “CP
\nRate” applicable to the Company on the basis of the interest rate or discount
\napplicable to commercial paper issued by such Conduit Assignee (rather than
\nthe Company), (vii) the defined terms and other terms and provisions of this
\nAgreement and the other Transaction Documents shall be interpreted in
\naccordance with the foregoing, and (viii) if requested by the Agent or
\nadministrative agent with respect to the Conduit Assignee, the parties will
\nexecute and deliver such further agreements and documents and take such other
\nactions as the Agent or such administrative agent may reasonably request to
\nevidence and give effect to the foregoing. No assignment by the Company to a
\nConduit Assignee of all or any portion of the Net Investment shall in any way
\ndiminish the related Bank Investors’ obligation under Section 5.9 to make any
\nSubsequent Funding not made by the Company or such Conduit Assignee or to
\nacquire from the Company or such Conduit Assignee all or any portion of the
\nNet Investment.<\/p>\n
(c) In the event that the Company makes an assignment to a
\nConduit Assignee in accordance with Section 6.6 (b) hereof, the Bank
\nInvestors: (i) if requested by Bank of America, shall terminate their
\nparticipation in the Liquidity Provider Agreement to the extent of such
\nassignment, (ii) if requested by Bank of America, shall execute a
\nparticipation agreement with respect to the liquidity provider agreement
\nrelated to such Conduit Assignee, to the extent of such assignment, the terms
\nof which shall be substantially similar to those of the participation
\nagreement entered into by such Bank Investor with respect to the Liquidity
\nProvider Agreement (or which shall be otherwise reasonably satisfactory to
\nBank of America and the Bank Investors), (iii) if requested by the Company,
\nshall enter into such agreements as requested by the Company pursuant to
\nwhich they shall be obligated to provide funding to the Conduit Assignee on
\nsubstantially the same terms and conditions as is provided for in this
\nAgreement in respect of the Company (or which agreements shall be otherwise
\nreasonably satisfactory to the Company and the Bank Investors), and (iv)
\nshall take such actions as the Agent shall reasonably request in connection
\ntherewith.<\/p>\n
31<\/p>\n
(d) The Issuer hereby agrees and consents to the assignment by
\nthe Company from time to time of all or any part of its rights under,
\ninterest in and title to this Agreement and the Note to any Liquidity
\nProvider. In addition, the Issuer hereby consents to and acknowledges the
\nassignment by the Company of all of its rights under, interest in and title
\nto this Agreement and the Note to the Collateral Agent.<\/p>\n
Section 6.7. WAIVER OF CONFIDENTIALITY. The Issuer hereby consents to
\nthe disclosure of any non-public information with respect to it received by
\nthe Company, the Agent, any Bank Investor or the Administrative Agent to any
\nof the Company, the Agent, any nationally recognized rating agency rating the
\nCompany’s Commercial Paper, the Administrative Agent, the Collateral Agent,
\nany Bank Investor or potential Bank Investor, the Liquidity Provider or the
\nCredit Support Provider in relation to this Agreement.<\/p>\n
Section 6.8. CONFIDENTIALITY AGREEMENT. The Issuer hereby agrees that
\nit will not disclose the contents of this Agreement or any other proprietary
\nor confidential information of the Company, the Agent, the Administrative
\nAgent, the Collateral Agent, any Liquidity Provider or any Bank Investor to
\nany other Person except (i) its auditors and attorneys, employees or
\nfinancial advisors (other than any commercial bank) and any nationally
\nrecognized rating agency, provided such auditors, attorneys, employees,
\nfinancial advisors or rating agencies are informed of the highly confidential
\nnature of such information or (ii) as otherwise required (x) by applicable
\nlaw, (y) under the Securities Exchange Act of 1934, as amended, in connection
\nwith an offering of securities issued by the Issuer or an Affiliate thereof,
\nor (z) by order of a court of competent jurisdiction (PROVIDED, HOWEVER, that
\nin the case of this clause (z) no such disclosure shall occur without the
\nprior review by the Administrative Agent of the material to be disclosed).<\/p>\n
Section 6.9. NO BANKRUPTCY PETITION AGAINST THE COMPANY. The Issuer
\nand each Bank Investor hereby covenants and agrees that, prior to the date
\nwhich is one year and one day after the payment in full of all outstanding
\nCommercial Paper or other indebtedness of the Company or any Conduit
\nAssignee, it will not institute against, or join any other Person in
\ninstituting against, the Company or any Conduit Assignee, any bankruptcy,
\nreorganization, arrangement, insolvency or liquidation proceedings or other
\nsimilar proceeding under the laws of the United States or any state of the
\nUnited States.<\/p>\n
Section 6.10. FURTHER ASSURANCES. The Issuer agrees to do such further
\nacts and things and to execute and deliver to the Company or the Collateral
\nAgent such additional assignments, agreements, powers and instruments as are
\nrequired by the Company to carry into effect the purposes of this Agreement
\nor the Security Agreement or to better assure and confirm unto the Company or
\nthe Collateral Agent its rights, powers and remedies hereunder or thereunder.<\/p>\n
Section 6.11. HEADINGS. Section headings used in this Agreement are
\nfor convenience of reference only and shall not affect the construction or
\ninterpretation of this Agreement.<\/p>\n
Section 6.12. LIMITATION OF LIABILITY. It is expressly understood and
\nagreed by the parties hereto that (a) this Agreement is executed and
\ndelivered by Bankers Trust (Delaware), not individually or personally but
\nsolely as Trustee of the Issuer, in the exercise of the powers and authority
\nconferred and vested in it, (b) each of the representations, undertakings and
\nagreements herein made on the part of the Issuer is made and intended not as
\na personal representation, <\/p>\n
32<\/p>\n
undertaking and agreement by Bankers Trust (Delaware) but is made and
\nintended for the purpose for binding only the Issuer, (c) nothing herein
\ncontained shall be construed as creating any liability on Bankers Trust
\n(Delaware), individually or personally, to perform any covenant either
\nexpressed or implied contained herein, all such liability, if any, being
\nexpressly waived by the parties hereto and by any Person claiming by, through
\nor under the parties hereto and (d) under no circumstances shall Bankers
\nTrust (Delaware) be personally liable for the payment of any indebtedness or
\nexpenses of the Issuer or be liable for the breach or failure of any
\nobligation, representation, warranty or covenant made or undertaken by the
\nIssuer under this Agreement or any other related documents; PROVIDED,
\nHOWEVER, that no provision of this Agreement shall be construed to relieve
\nthe Trustee from liability for its own negligent action, its own negligent
\nfailure to act, its action in bad faith or its own willful misconduct.<\/p>\n
Section 6.13. INTENDED TAX CHARACTERIZATION. The parties hereto agree
\nthat it is their mutual intent that, for all applicable tax purposes, the
\nNote will constitute indebtedness and that for all applicable tax purposes,
\naccordingly, the Issuer will be treated as owner of the Collateral. Further,
\neach party hereto and the holder of the Note (or an interest therein) (by
\nreceiving and holding the Note or an interest therein), hereby covenants to
\nevery other party hereto to treat the Note as indebtedness for all applicable
\ntax purposes in all tax filings, reports and returns and otherwise, and
\nfurther covenants that neither it nor any of its affiliates will take, or
\nparticipate in the taking of or permit to be taken, any action that is
\ninconsistent with the treatment of the Note as indebtedness for tax purposes
\nunless otherwise directed by law, rule or regulation or order of any
\ngovernmental authority. All successors and assigns of the parties hereto
\nshall be bound by the provisions hereof.<\/p>\n
33<\/p>\n
IN WITNESS WHEREOF, the Issuer, the Company and the Agent have
\ncaused this Note Purchase Agreement to be executed by their respective officers
\nthereunto duly authorized as of the day and year first above written.<\/p>\n
AMERICREDIT BOA TRUST,
\n as Issuer<\/p>\n
By: BANKERS TRUST (DELAWARE), not in its
\n individual capacity but solely as Trustee<\/p>\n
By:
\n ———————————————-
\n Name:
\n Title:<\/p>\n
KITTY HAWK FUNDING CORPORATION,
\n as Company<\/p>\n
By:
\n ———————————————-
\n Name:
\n Title:<\/p>\n
BANK OF AMERICA, N.A., as Agent
\n and as Bank Investor<\/p>\n
$250,000,000 By:
\n———— ———————————————-
\n Commitment Name:
\n Title:<\/p>\n
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