\n ARTICLE I <\/p>\n DEFINITIONS<\/p>\n
Section 1.1 Defined Terms . . . . . . . . . . . . . . . . . . . . . . . . . . . .2<\/p>\n
ARTICLE II <\/p>\n
THE COLLATERAL<\/p>\n
Section 2.1 Grant of Security Interest by the Borrower. . . . . . . . . . . . . .3
\nSection 2.2 No Transfer of Duties . . . . . . . . . . . . . . . . . . . . . . . .4
\nSection 2.3 Termination and Release of Rights . . . . . . . . . . . . . . . . . .5<\/p>\n
ARTICLE III <\/p>\n
THE ADMINISTRATIVE AGENT<\/p>\n
Section 3.1 Appointment and Powers. . . . . . . . . . . . . . . . . . . . . . . .7
\nSection 3.2 Performance of Duties . . . . . . . . . . . . . . . . . . . . . . . .7
\nSection 3.3 Limitation on Liability . . . . . . . . . . . . . . . . . . . . . . .7
\nSection 3.4 Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . .8
\nSection 3.5 Compensation and Reimbursement. . . . . . . . . . . . . . . . . . . .8
\nSection 3.6 Waiver of Setoffs . . . . . . . . . . . . . . . . . . . . . . . . . .9
\nSection 3.7 Control by the Required Lending Groups. . . . . . . . . . . . . . . .9
\nSection 3.8 Successor Administrative Agent. . . . . . . . . . . . . . . . . . . .9
\nSection 3.9 Notices to Funding Agents . . . . . . . . . . . . . . . . . . . . . 10<\/p>\n
ARTICLE IV <\/p>\n
REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE BORROWER<\/p>\n
Section 4.1 Representations and Warranties of the Borrower. . . . . . . . . . . 11
\nSection 4.2 Covenants of the Borrower . . . . . . . . . . . . . . . . . . . . . 14<\/p>\n
ARTICLE V<\/p>\n
REQUIRED LENDING GROUPS; INTERCREDITOR PROVISIONS<\/p>\n
Section 5.1 Authority of Required Lending Groups. . . . . . . . . . . . . . . . 20
\nSection 5.2 Rights of Secured Parties . . . . . . . . . . . . . . . . . . . . . 20
\nSection 5.3 Degree of Care. . . . . . . . . . . . . . . . . . . . . . . . . . . 20<\/p>\n
ARTICLE VI<\/p>\n
TERMINATION EVENTS; REMEDIES<\/p>\n
Section 6.1 Termination Events; Remedies. . . . . . . . . . . . . . . . . . . . 22
\nSection 6.2 Restoration of Rights and Remedies. . . . . . . . . . . . . . . . . 25
\nSection 6.3 No Remedy Exclusive . . . . . . . . . . . . . . . . . . . . . . . . 25<\/p>\n
ARTICLE VII<\/p>\n
FUNDINGS; THE VFN<\/p>\n
i<\/p>\n
Section 7.1 Loans to Borrower; Funding Procedures; the VFN. . . . . . . . . . . 26
\nSection 7.2 Sharing of Payments, Etc. . . . . . . . . . . . . . . . . . . . . . 38
\nSection 7.3 Right of Setoff . . . . . . . . . . . . . . . . . . . . . . . . . . 38
\nSection 7.4 Interest. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
\nSection 7.5 Payments Generally. . . . . . . . . . . . . . . . . . . . . . . . . 40
\nSection 7.6 Broken Funding. . . . . . . . . . . . . . . . . . . . . . . . . . . 40
\nSection 7.7 Conversion and Continuation of Outstanding Advances Made
\n by the APA Banks. . . . . . . . . . . . . . . . . . . . . . . . . . 40
\nSection 7.8 Illegality. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
\nSection 7.9 Inability to Determine Eurodollar Rate. . . . . . . . . . . . . . . 42
\nSection 7.10 Fees. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43<\/p>\n
ARTICLE VIII<\/p>\n
INDEMNIFICATION<\/p>\n
Section 8.1 Indemnity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
\nSection 8.2 Indemnity for Reserves and Expenses . . . . . . . . . . . . . . . . 45
\nSection 8.3 Indemnity for Taxes . . . . . . . . . . . . . . . . . . . . . . . . 48
\nSection 8.4 Other Costs, Expenses and Related Matters . . . . . . . . . . . . . 49<\/p>\n
ARTICLE IX<\/p>\n
MISCELLANEOUS<\/p>\n
Section 9.1 Further Assurances. . . . . . . . . . . . . . . . . . . . . . . . . 51
\nSection 9.2 Waiver. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
\nSection 9.3 Amendments; Waivers . . . . . . . . . . . . . . . . . . . . . . . . 51
\nSection 9.4 Severability. . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
\nSection 9.5 Nonpetition Covenant. . . . . . . . . . . . . . . . . . . . . . . . 52
\nSection 9.6 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
\nSection 9.7 Term of this Agreement. . . . . . . . . . . . . . . . . . . . . . . 53
\nSection 9.8 Assignments; Third-Party Rights . . . . . . . . . . . . . . . . . . 53
\nSection 9.9 Consent of Required Lending Groups. . . . . . . . . . . . . . . . . 54
\nSection 9.10 Limitation of Liability . . . . . . . . . . . . . . . . . . . . . . 54
\nSection 9.11 Counterparts. . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
\nSection 9.12 Headings. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
\nSection 9.13 No Recourse Against Certain Parties . . . . . . . . . . . . . . . . 54
\nSection 9.14 Respective Rights of the Borrower and the Secured Parties in the
\n Collateral . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
\nSection 9.15 Consents to Jurisdiction. . . . . . . . . . . . . . . . . . . . . . 55
\nSection 9.16 Trial by Jury Waived. . . . . . . . . . . . . . . . . . . . . . . . 56
\nSection 9.17 Liabilities and Rights of Funding Agents. . . . . . . . . . . . . . 56
\nSection 9.18 CP Lenders Generally. . . . . . . . . . . . . . . . . . . . . . . . 58
\nSection 9.19 Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . 59<\/p>\n
<\/c><\/c><\/s><\/caption>\n<\/table>\n
ii<\/p>\n
AMENDED AND RESTATED SECURITY AGREEMENT<\/p>\n
AMENDED AND RESTATED SECURITY AGREEMENT, dated as of September 21,
\n1999 (as amended, supplemented or otherwise modified and in effect from time to
\ntime, this “AGREEMENT”), by and among CP FUNDING CORP., a Nevada corporation
\n(the “BORROWER”), THE CHASE MANHATTAN BANK, a New York banking corporation, as
\nadministrative agent on behalf of the Secured Parties (together with its
\nsuccessors and assigns in such capacity, the “ADMINISTRATIVE AGENT”) and THE
\nSEVERAL SECURED PARTIES AND FUNDING AGENTS PARTY HERETO FROM TIME TO TIME.<\/p>\n
W I T N E S S E T H :<\/p>\n
WHEREAS, certain parties hereto have entered into a Security
\nAgreement, dated as of October 8, 1997 (as amended to the date hereof, the
\n“ORIGINAL AGREEMENT”);<\/p>\n
WHEREAS, the parties hereto intend to amend and restate the Original
\nAgreement on the terms and conditions specified herein;<\/p>\n
WHEREAS, pursuant to the Amended and Restated Sale and Servicing
\nAgreement, dated as of September 21, 1999 (as amended, supplemented or otherwise
\nmodified and in effect from time to time, the “SALE AND SERVICING AGREEMENT”),
\namong the Seller, the Servicer, the Backup Servicer, the Borrower, and the
\nAdministrative Agent, the Seller intends to sell to the Borrower from time to
\ntime all of its right, title and interest in and to certain receivables and the
\nother property specified therein; and<\/p>\n
WHEREAS, the Borrower desires to obtain financing for the purchase of
\nsuch receivables; and<\/p>\n
WHEREAS, it is a condition, among others, to the Borrower’s obtaining
\nadvances hereunder that the Borrower grant to the Administrative Agent on behalf
\nof the Secured Parties a first priority security interest in all of the
\nBorrower’s <\/p>\n
right, title and interest in and to the Receivables and the other property
\nspecified herein;<\/p>\n
NOW THEREFORE, for good and valuable consideration, the adequacy,
\nreceipt and sufficiency of which are hereby acknowledged, the parties hereto
\nhereby agree as follows:<\/p>\n
ARTICLE I<\/p>\n
DEFINITIONS<\/p>\n
Section 1.1 DEFINED TERMS. Terms defined in Annex A to the Sale
\nand Servicing Agreement, unless otherwise defined herein, shall have such
\ndefined meanings when used herein.<\/p>\n
ARTICLE II<\/p>\n
THE COLLATERAL<\/p>\n
Section 1.2 GRANT OF SECURITY INTEREST BY THE BORROWER.<\/p>\n
(1) The Borrower hereby grants to the Administrative Agent, on
\nbehalf of and for the benefit of the Secured Parties to secure the payment and
\nperformance of the respective Secured Obligations, a security interest in all of
\nthe Borrower’s right, title and interest, whether now owned or hereafter
\nacquired and wherever located, in, to and under all accounts, contract rights,
\ngeneral intangibles, chattel paper, instruments, documents, money, cash, deposit
\naccounts, certificates of deposit, goods, letters of credit, advices of credit
\nsecurities investment property, financial assets, security entitlements or
\ninstruments consisting of, arising from or relating to any of the following
\nproperty: (i) the Receivables; (ii) the Other Conveyed Property related thereto;
\n(iii) the rights of the Borrower under the Sale and Servicing Agreement and each
\nReceivables Sale Agreement entered into between the Seller and the Borrower
\npursuant to the Sale and Servicing Agreement, including, but not limited to, the
\nright to cause the Seller to repurchase Receivables from the Borrower under
\ncertain circumstances; (iv) all amounts required to be deposited, or delivered
\nto the Administrative Agent for deposit, from time to time to the Collection
\nAccount; (v) the Pledged Accounts and all funds on deposit from time to time in
\nPledged Accounts and all property credited thereto, and in all investments and
\nproceeds thereof (including all income thereon); (vi) all funds on deposit from
\ntime to time in the Lockbox Account and all property credited thereto and all
\nrights and benefits of the Borrower under the Lockbox Agreement; (vii) all
\namounts owing to the Borrower and all other rights of the Borrower under any
\nHedge Contract; and (viii) all present and future claims, demands, causes and
\nchoses in action in respect of any or all of the foregoing and all payments on
\nor under and all proceeds of every kind and nature whatsoever in respect of any
\nand all of the foregoing, including all proceeds of the conversion, voluntary or
\ninvoluntary, into cash or other liquid property, all cash proceeds, accounts,
\naccounts receivables, notes, drafts, acceptances, chattel paper, checks, deposit
\naccounts, insurance proceeds, condemnation awards, rights to payment of any and
\nevery kind and other forms of obligations and receivables, investment property,
\nfinancial assets, security entitlements or instruments and other property which
\nat any time constitute all or part of or are included in the proceeds of any of
\nthe foregoing (collectively, the “COLLATERAL”).<\/p>\n
3<\/p>\n
The Administrative Agent, for the benefit of the Secured Parties,
\nacknowledges such grant of a security interest.<\/p>\n
(2) On and as of each Receivables Sale Date, the Borrower hereby
\nmakes the representations and warranties set forth in Exhibit A hereto as to the
\nReceivables pledged to the Secured Parties on each such date, on which the
\nSecured Parties shall rely in advancing funds to the Borrower under this
\nAgreement.<\/p>\n
(3) In order to effect the provisions and purposes of this
\nAgreement, including for the purpose of perfecting the security interests
\ngranted hereunder, the Borrower represents and warrants that it has, prior to or
\non the date of this Agreement, executed and filed or caused to be filed
\nappropriate UCC-1 financing statements in Nevada and Texas and has taken all
\nother action necessary to ensure that the Administrative Agent, as agent for the
\nSecured Parties, has a first priority perfected security interest in all of the
\nCollateral that can be perfected by the filing of a financing statement.
\nFurthermore, on and as of each Receivables Sale Date, the Borrower hereby
\nrepresents and warrants that the Borrower and the Seller have taken all other
\nsteps necessary under all applicable law in order to cause to exist in favor of
\nthe Administrative Agent, on behalf of the Secured Parties, a valid, subsisting
\nand enforceable first priority perfected security interest in the Borrower’s
\nfirst priority perfected security interest in the Financed Vehicle securing each
\nReceivable pledged hereunder on such date (and the proceeds of such Financed
\nVehicle) (PROVIDED, HOWEVER, that, prior to (X) the occurrence of a Servicer
\nTermination Event, a Potential Servicer Termination Event, a Termination Event
\nor a Potential Termination Event and the request by the Administrative Agent or,
\n(Y) at any time, the request by the Required Lending Groups, for the recordation
\nof the Borrower’s and\/or the Administrative Agent’s lien on such Financed
\nVehicle’s certificate of title, no such recordation shall be required), and such
\nsecurity interest is and shall be prior to all other liens upon and security
\ninterests in such Financed Vehicle that now exist or may hereafter arise or be
\ncreated.<\/p>\n
Section 1.3 NO TRANSFER OF DUTIES. The security interests granted
\nhereby are granted as security only and shall not (i) transfer or in any way
\naffect or modify, or relieve the Borrower from, any obligation to perform or
\nsatisfy any term, covenant, condition or agreement to be performed or satisfied
\nby the <\/p>\n
4<\/p>\n
Borrower under or in connection with this Agreement or any other Basic
\nAgreement to which it is a party or (ii) impose any obligation on any of the
\nSecured Parties or the Administrative Agent to perform or observe any such
\nterm, covenant, condition or agreement or impose any liability on any of the
\nSecured Parties or the Administrative Agent for any act or omission on its
\npart relative thereto or for any breach of any representation or warranty on
\nits part contained therein or made in connection therewith except, in each
\ncase, to the extent specifically provided herein and in the other Basic
\nAgreements.<\/p>\n
Section 1.4 TERMINATION AND RELEASE OF RIGHTS.<\/p>\n
(1) On each VFN Prepayment Date, the Administrative Agent shall, at
\nthe expense of the Borrower: execute such instruments of release with respect to
\nthe Prepayment Related Collateral, in recordable form if necessary, in favor of
\nthe Borrower as the Borrower may reasonably request; deliver any Prepayment
\nRelated Collateral in its possession to the Borrower; and otherwise take such
\nactions, and\/or cause or permit the Servicer to take such actions, at the
\nBorrower’s expense, as are necessary and appropriate to release the lien of this
\nAgreement and release and deliver to the Borrower the Prepayment Related
\nCollateral.<\/p>\n
(2) On the Termination Date, except as otherwise provided herein,
\nthe rights, remedies, powers, duties, authority and obligations conferred upon
\nthe Administrative Agent and each Secured Party pursuant to this Agreement shall
\nterminate and be of no further force and effect and all rights, remedies,
\npowers, duties, authority and obligations of the Administrative Agent and each
\nSecured Party with respect to the Collateral shall be automatically released.
\nOn the Termination Date, the Administrative Agent and each Secured Party agrees,
\nat the expense of the Borrower, to execute such instruments of release, in
\nrecordable form if necessary, in favor of the Borrower as the Borrower may
\nreasonably request, to deliver any Collateral in its possession to the Borrower,
\nand otherwise to take such actions, and\/or cause or permit the Servicer to take
\nsuch actions, as are necessary and appropriate to release the lien of this
\nAgreement and release and deliver to the Borrower the Collateral.<\/p>\n
(3) To the extent, if any, otherwise required of the Borrower by
\nthe terms of any Basic Agreement and permitted by the terms hereof and thereof,
\nthe Administrative Agent may, and otherwise upon the prior written instructions
\nof <\/p>\n
5<\/p>\n
a respective Authorized Officer of each Funding Agent that is a member of the
\nRequired Lending Groups, the Administrative Agent shall, at the expense of
\nthe Borrower take (in each case) such steps as may be necessary, or as the
\nBorrower, in a manner consistent with the Basic Agreements, may reasonably
\nrequest, to release the interests of the Secured Parties in any items of the
\nCollateral, including but not limited to redelivering and reassigning to the
\nBorrower any releases necessary to permit the Borrower to transfer its
\ninterest in such items of the Collateral in accordance with the terms of the
\nBasic Agreements.<\/p>\n
6<\/p>\n
ARTICLE III<\/p>\n
THE ADMINISTRATIVE AGENT<\/p>\n
Section 1.5 APPOINTMENT AND POWERS. The Secured Parties hereby
\nappoint The Chase Manhattan Bank as the Administrative Agent, and The Chase
\nManhattan Bank has accepted such appointment and has agreed to act as
\nAdministrative Agent with respect to the Collateral for the Secured Parties and
\nto perform the other duties of the Administrative Agent in accordance with the
\nprovisions of this Agreement and the other Basic Agreements. <\/p>\n
Section 1.6 PERFORMANCE OF DUTIES. The Administrative Agent shall
\nhave no duties or responsibilities except those expressly set forth in this
\nAgreement and the other Basic Agreements to which the Administrative Agent is a
\nparty or as directed by the Required Lending Groups in accordance with this
\nAgreement. The Administrative Agent shall not be required to take any
\ndiscretionary actions hereunder except at the written direction and with the
\nindemnification of the Required Lending Groups.<\/p>\n
Section 1.7 LIMITATION ON LIABILITY. Neither the Administrative
\nAgent nor any of its directors, officers or employees, shall be liable for any
\naction taken or omitted to be taken by it or them hereunder, or in connection
\nherewith, except that the Administrative Agent shall be liable for its gross
\nnegligence, bad faith or willful misconduct; nor shall the Administrative Agent
\nbe responsible for the validity, effectiveness, value, sufficiency or
\nenforceability against the Seller, the Servicer or the Borrower of this
\nAgreement or any of the Collateral (or any part thereof). Notwithstanding any
\nterm or provision of this Agreement, the Administrative Agent shall incur no
\nliability to the Seller, the Servicer, the Borrower, the Funding Agents or the
\nSecured Parties for any action taken or omitted by the Administrative Agent in
\nconnection with the Collateral, except for the gross negligence, bad faith or
\nwillful misconduct on the part of the Administrative Agent, and shall incur no
\nliability to the Seller, the Servicer, the Borrower, the Funding Agents or the
\nSecured Parties except for gross negligence, bad faith or willful misconduct in
\ncarrying out its duties. Subject to Section 3.4, the Administrative Agent shall
\nbe protected and shall incur no liability to any such party in relying upon the
\ngenuineness of any notice, demand, certificate, signature, instrument or other
\ndocument reasonably believed by the Administrative Agent to be genuine and to
\nhave been duly executed by the appropriate signatory, and <\/p>\n
7<\/p>\n
(absent actual knowledge to the contrary) the Administrative Agent shall not
\nbe required to make any independent investigation with respect thereto. The
\nAdministrative Agent shall at all times be free independently to establish to
\nits reasonable satisfaction, but shall have no duty to independently verify,
\nthe existence or nonexistence of facts that are a condition to the exercise
\nor enforcement of any right or remedy hereunder or under any of the other
\nBasic Agreements. The Administrative Agent may consult with counsel, and
\nshall not be liable for any action taken or omitted to be taken by it
\nhereunder in good faith and in accordance with the advice of such counsel.
\nThe Administrative Agent shall not be under any obligation to exercise any of
\nthe remedial rights or powers vested in it by this Agreement or to follow any
\ndirection from the Required Lending Groups or any Secured Party, unless it
\nshall have received reasonable security or indemnity satisfactory to the
\nAdministrative Agent against the costs, expenses and liabilities which might
\nbe incurred by it.<\/p>\n
Section 1.8 INDEMNIFICATION. The Borrower shall indemnify the
\nAdministrative Agent, its directors, officers, employees and agents for, and
\nhold the Administrative Agent, its directors, officers, employees and agents
\nharmless against, any loss, liability or expense (including the costs and
\nexpenses of defending against any claim of liability) arising out of or in
\nconnection with the Administrative Agent’s acting as Administrative Agent
\nhereunder, except such loss, liability or expense as shall result from the gross
\nnegligence, bad faith or willful misconduct of the Administrative Agent or its
\nofficers or agents. The obligation of the Borrower under this Section 3.4 shall
\nsurvive the termination of this Agreement and the resignation or removal of the
\nAdministrative Agent.<\/p>\n
Section 1.9 COMPENSATION AND REIMBURSEMENT. The Borrower agrees for
\nthe benefit of the Secured Parties and as part of the Secured Obligations (a) to
\npay to the Administrative Agent, from time to time, reasonable compensation for
\nall services rendered by it hereunder as set forth in the Fee Letter (which
\ncompensation shall not be limited by any provision of law in regard to the
\ncompensation of a collateral trustee); and (b) to reimburse the Administrative
\nAgent upon its request for all reasonable expenses, disbursements and advances
\nincurred or made by the Administrative Agent in accordance with any provision
\nof, or carrying out its duties and obligations under, this Agreement (including
\nthe reasonable compensation and fees and the expenses and disbursements of its
\nagents, any independent certified public accountants and independent counsel),
\nexcept any expense, disbursement or advances as may be attributable to gross<\/p>\n
8<\/p>\n
negligence, bad faith or willful misconduct on the part of the Administrative
\nAgent.<\/p>\n
Section 1.10 WAIVER OF SETOFFS. The Administrative Agent hereby
\nexpressly waives any and all rights of setoff that the Administrative Agent may
\notherwise at any time have under applicable law with respect to any Pledged
\nAccount and agrees that amounts in the Pledged Accounts shall at all times be
\nheld and applied solely in accordance with the provisions hereof and of the
\nother Basic Agreements.<\/p>\n
Section 1.11 CONTROL BY THE REQUIRED LENDING GROUPS. To the extent
\nthe Administrative Agent is entitled to consent to or withhold its consent to
\nany waiver or amendment of this Agreement or the other Basic Agreements in
\naccordance with the terms hereof or thereof or otherwise take or omit to take
\naction upon the occurrence of a Servicer Termination Event, a Potential Servicer
\nTermination Event, Termination Event or Potential Termination Event, the
\nAdministrative Agent shall (a) give prompt notice to the Funding Agents of any
\nsuch waiver, amendment, Servicer Termination Event, Potential Servicer
\nTermination Event, Termination Event or Potential Termination Event of which it
\nis aware and (b) take such action with respect to such waiver, amendment,
\nServicer Termination Event, Potential Servicer Termination Event, Termination
\nEvent or Potential Termination Event as shall be directed by the Funding Agents
\nof all Lending Groups (unless the direction of the Required Lending Groups is
\nexpressly required with respect to a particular provision).<\/p>\n
Section 1.12 SUCCESSOR ADMINISTRATIVE AGENT. The Administrative
\nAgent may, upon 15 days’ notice to each Funding Agent (with a copy to the
\nSeller), and the Administrative Agent will, at the direction of the Required
\nLending Groups, resign as Administrative Agent; PROVIDED, in either case, that
\nsuch resignation shall not become effective until a successor Administrative
\nAgent has been appointed hereunder in accordance with the next sentence. If the
\nAdministrative Agent shall resign as Administrative Agent under this Agreement,
\nthen all Lending Groups shall appoint from among the APA Banks and Funding
\nAgents a successor agent, whereupon such successor agent shall succeed to the
\nrights, powers and duties of the Administrative Agent, and the term
\n“Administrative Agent” shall mean such successor agent, effective upon its
\nacceptance of such appointment and its delivery of a duly executed counterpart
\nof this Agreement and an acknowledgment of such appointment to each Funding<\/p>\n
9<\/p>\n
Agent, and the former Administrative Agent’s rights, powers and duties as
\nAdministrative Agent shall be terminated, without any other or further act or
\ndeed on the part of such former Administrative Agent or any of the parties to
\nthis Agreement. After the retiring Administrative Agent’s resignation hereunder
\nas Administrative Agent, the provisions of this Article III shall inure to its
\nbenefit as to any actions taken or omitted to be taken by it while it was
\nAdministrative Agent under this Agreement.<\/p>\n
The resigning Administrative Agent shall be entitled to compensation
\naccrued up to the date of resignation. The resigning Administrative Agent shall
\nbe liable (under the terms hereof) for its actions or inaction prior to the
\neffective date of resignation.<\/p>\n
Section 1.13 NOTICES TO FUNDING AGENTS. The Administrative Agent
\nshall promptly (and in any case no later than five (5) Business Days from
\nreceipt) forward to the Funding Agents copies of any report, certificate or
\nother document delivered by the Borrower, the Servicer or the Seller to the
\nAdministrative Agent under the Basic Agreements.<\/p>\n
10<\/p>\n
ARTICLE IV<\/p>\n
REPRESENTATIONS, WARRANTIES AND COVENANTS
\n OF THE BORROWER<\/p>\n
Section 1.14 REPRESENTATIONS AND WARRANTIES OF THE BORROWER. The
\nBorrower represents and warrants to the Administrative Agent, the Funding Agents
\nand the Secured Parties as of the date hereof, the Effective Date and each
\nFunding Date that:<\/p>\n
(1) CORPORATE EXISTENCE AND POWER. The Borrower is a corporation
\nduly organized, validly existing and in good standing under the laws of its
\njurisdiction of incorporation and has all corporate power and all material
\ngovernmental licenses, authorizations, consents and approvals required to carry
\non its business in each jurisdiction in which its business is now conducted.<\/p>\n
(2) CORPORATE AND GOVERNMENTAL AUTHORIZATION; CONTRAVENTION. The
\nexecution, delivery and performance by the Borrower of this Agreement and the
\nother Basic Agreements to which it is a party are within the Borrower’s
\ncorporate powers, have been duly authorized by all necessary corporate action,
\nrequire no action by or in respect of, or filing with, any governmental body,
\nagency or official, and do not contravene, or constitute a default under, any
\nprovision of applicable law or regulation or of the Certificate of Incorporation
\nor Bylaws of the Borrower or of any agreement, judgment, injunction, order,
\ndecree or other instrument binding upon the Borrower or result in the creation
\nor imposition of any Lien on assets of the Borrower (other than the Lien of this
\nAgreement), or require the consent or approval of, or the filing of any notice
\nor other documentation with, any governmental authority or other Person.<\/p>\n
(3) BINDING EFFECT. Each of this Agreement and the other Basic
\nAgreements to which it is a party constitutes the legal, valid and binding
\nobligation of the Borrower, enforceable against the Borrower in accordance with
\nits terms, subject to applicable bankruptcy, insolvency, moratorium or other
\nsimilar laws affecting the rights of creditors.<\/p>\n
(4) ACCURACY OF INFORMATION. All information heretofore furnished
\nby the Borrower to the Administrative Agent, the Funding Agents and the Secured
\nParties for purposes of, or in connection with, this Agreement or any<\/p>\n
11<\/p>\n
transaction contemplated hereby is, and all such information hereafter furnished
\nby the Borrower to the Administrative Agent and the Secured Parties will be,
\ntrue and accurate in every material respect, on the date such information is
\nstated or certified.<\/p>\n
(5) TAX STATUS. All tax returns (Federal, state and local)
\nrequired to be filed with respect to the Borrower have been filed (which filings
\nmay be made by an Affiliate of the Borrower on a consolidated basis covering the
\nBorrower and other Persons), and there has been paid or adequate provision made
\nfor the payment of all taxes, assessments and other governmental charges in
\nrespect of the Borrower (or in the event consolidated returns have been filed,
\nwith respect to the Persons subject to such returns).<\/p>\n
(6) ACTION, SUITS. There are no actions, suits or proceedings
\npending or threatened against or affecting the Borrower or any Affiliate of the
\nBorrower or their respective properties, in or before any court, arbitrator or
\nother body, which may have a material adverse effect on the Borrower’s ability
\nto perform its obligations hereunder or under the other Basic Agreements.<\/p>\n
(7) USE OF PROCEEDS. The proceeds of any Funding will be used by
\nthe Borrower to acquire the Receivables and related Other Conveyed Property with
\nrespect thereto from the Seller pursuant to the Sale and Servicing Agreement.<\/p>\n
(8) PLACE OF BUSINESS. The chief place of business and chief
\nexecutive office of the Borrower are located at 639 Isbell Road, Suite 390,
\nReno, Nevada 89509, and the offices where the Borrower keeps all of its books
\nand records are located at 1325 Airmotive Way, Reno, Nevada.<\/p>\n
(9) MERGER AND CONSOLIDATION. The Borrower has not changed its
\nname, merged with or into or been consolidated with any other corporation or
\nbeen the subject of any proceeding under Title 11, United States Code
\n(Bankruptcy).<\/p>\n
(10) SOLVENCY. The Borrower is not insolvent and will not be
\nrendered insolvent immediately following the consummation on the Effective Date
\nand on any Funding Date of the transactions contemplated by this Agreement and
\nthe other Basic Agreements, including (but not limited to) the pledge by the<\/p>\n
12<\/p>\n
Borrower to the Administrative Agent of the Collateral in accordance with this
\nAgreement.<\/p>\n
(11) NO TERMINATION EVENT. After giving effect to each Funding, no
\nPotential Termination Event or Termination Event exists.<\/p>\n
(12) COMPLIANCE. The Borrower has complied in all material respects
\nwith all Requirements of Law in respect of the conduct of its business and
\nownership of its property.<\/p>\n
(13) NOT AN INVESTMENT COMPANY. The Borrower is not an “investment
\ncompany” within the meaning of the Investment Company Act of 1940, as amended,
\nor is exempt from all provisions of such Act.<\/p>\n
(14) ERISA. The Borrower is in compliance in all material respects
\nwith ERISA, and no lien in favor of the Pension Benefit Guaranty Corporation on
\nany of the Receivables or Other Conveyed Property shall exist.<\/p>\n
(15) SUBSIDIARIES. The Borrower does not have any Subsidiaries.<\/p>\n
(16) CAPITAL STOCK. The Borrower has neither sold nor pledged any
\nof its common stock to any entity other than the Seller.<\/p>\n
(17) NO MATERIAL ADVERSE CHANGE. Since June 30, 1999, there has
\nbeen no material adverse change in the business, assets, operations, prospects
\nor conditions (financial or otherwise) of the Seller, the Borrower or the
\nServicer, either individually or taken as a whole.<\/p>\n
(18) CHARACTERISTICS OF RECEIVABLES. Each of the statements listed
\non Exhibit A hereto is true and correct.<\/p>\n
Any document, instrument, certificate or notice delivered to the
\nAdministrative Agent or the Secured Parties by, or on behalf of, the Borrower or
\nits Affiliates hereunder or under the other Basic Agreements shall be deemed a
\nrepresentation and warranty of the contents thereof by the Borrower.<\/p>\n
The representations and warranties set forth in this Section 4.1 shall
\nsurvive the pledge and assignment of the Collateral to the Administrative Agent
\nfor <\/p>\n
13<\/p>\n
the benefit of the Secured Parties. Upon discovery by the Borrower, the
\nSecured Parties or the Administrative Agent of a breach of any of the
\nforegoing representations and warranties, the party discovering such breach
\nshall give prompt written notice to the others.<\/p>\n
Section 1.15 COVENANTS OF THE BORROWER. The Borrower hereby
\ncovenants with the Administrative Agent and the Secured Parties that, for so
\nlong as this Agreement shall be in effect:<\/p>\n
(1) PRESERVATION OF COLLATERAL. Subject to the rights, powers and
\nauthorities granted to the Administrative Agent and the Secured Parties in this
\nAgreement, the Borrower shall take such action as is necessary and proper with
\nrespect to the Collateral in order to preserve and maintain such Collateral and
\nto cause (subject to the rights of the Secured Parties) the Administrative Agent
\nto perform its obligations with respect to such Collateral as provided herein.
\nThe Borrower will do, execute, acknowledge and deliver, or cause to be done,
\nexecuted, acknowledged and delivered, such instruments of transfer or take such
\nother steps or actions as may be necessary, or required by the Required Lending
\nGroups, to perfect the security interests granted hereunder in the Collateral,
\nto ensure that such security interests rank prior to all other Liens and to
\npreserve the priority of such security interests and the validity and
\nenforceability thereof. Upon any delivery or substitution of Collateral, the
\nBorrower shall be obligated to execute such documents and perform such actions
\nas are necessary to create in the Administrative Agent for the benefit of the
\nSecured Parties a valid first Lien on, and valid and perfected first priority
\nsecurity interest in, the Collateral so delivered and to deliver such Collateral
\nto the Administrative Agent, free and clear of any other Lien, together with
\nsatisfactory assurances thereof, and to pay any reasonable costs incurred by any
\nof the Secured Parties or the Administrative Agent (including its agents) or
\notherwise in connection with such delivery. The Borrower will not take any
\naction to cause the Collateral or any portion thereof to be an instrument (as
\nsuch term is defined in the Relevant UCC).<\/p>\n
(2) NOTICES. In the event that the Borrower acquires knowledge of
\nthe occurrence and continuance of any Termination Event or Potential Termination
\nEvent under any of the Basic Agreements, the Borrower shall immediately give
\nnotice thereof to the Administrative Agent and the Funding Agents. The Funding
\nAgents shall immediately forward such notices to the Secured Parties.<\/p>\n
14<\/p>\n
(3) WAIVER OF STAY OR EXTENSION LAWS; MARSHALLING OF ASSETS. To
\nthe fullest extent permitted by applicable law, the Borrower will not at any
\ntime insist upon, plead, or in any manner whatsoever claim or take the benefit
\nor advantage of, any appraisement, valuation, stay, extension or redemption law
\nwherever enacted, now or at any time hereafter in force, in order to prevent or
\nhinder the enforcement of this Agreement or any absolute sale of the Collateral
\nor any part thereof, or the possession thereof by any purchaser at any sale
\nunder Article VI of this Agreement; and the Borrower, to the fullest extent
\npermitted by applicable law, for itself and all who may claim under it, hereby
\nwaives the benefit of all such laws, and covenants that it will not hinder,
\ndelay or impede the execution of any power herein granted to the Administrative
\nAgent, but will suffer and permit the execution of every such power as though no
\nsuch law had been enacted.<\/p>\n
(4) NONINTERFERENCE, ETC. The Borrower shall not (i) except to the
\nextent expressly permitted or contemplated by Section 5.2 of the Sale and
\nServicing Agreement, waive or alter, or permit to be waived or altered any of
\nits rights under the Collateral (or any agreement or instrument relating
\nthereto) without the prior written consent of the Administrative Agent (acting
\nat the direction of the Required Lending Groups); or (ii) fail to pay any tax,
\nassessment, charge or fee levied or assessed against the Collateral, or to
\ndefend any action, if such failure to pay or defend may adversely affect the
\npriority or enforceability of the Borrower’s right, title or interest in and to
\nthe Collateral or the Administrative Agent’s lien on, and security interest in,
\nthe Collateral for the benefit of the Secured Parties; or (iii) take any action,
\nor fail to take any action, if such action or failure to take action will
\ninterfere with the enforcement of any rights under the Basic Agreements.<\/p>\n
(5) CHANGE IN NAME, STRUCTURE, ETC. The Borrower shall not change
\nits name, identity or corporate structure unless it shall have given the
\nAdministrative Agent at least 30 days’ prior written notice thereof, shall have
\neffected any necessary or appropriate filings of financing statements or
\namendments thereto, and shall have delivered to the Administrative Agent an
\nOpinion of Counsel either (a) stating that, in the opinion of such counsel, such
\naction has been taken with respect to the execution and filing of any amendments
\nto previously recorded financing statements and continuation statements and
\nother actions as are necessary to perfect, maintain and protect the lien and
\nsecurity <\/p>\n
15<\/p>\n
interest of the Administrative Agent (and the priority thereof), on behalf of
\nthe Secured Parties, with respect to such Collateral and reciting the details
\nof such action, or (b) stating that, in the opinion of such counsel, no such
\naction is necessary to maintain such perfected lien and security interest.<\/p>\n
(6) RELOCATION OF THE BORROWER. The Borrower shall not change its
\nchief executive office unless it gives the Administrative Agent at least 30
\ndays’ prior written notice thereof. If the Borrower relocates its chief
\nexecutive office or principal place of business from 639 Isbel Road, Suite 390,
\nReno, Nevada 89509, the Borrower shall effect whatever appropriate recordations
\nand filings are necessary and shall provide an Opinion of Counsel to the
\nAdministrative Agent, on behalf of the Required Lending Groups, to the effect
\nthat, upon the recording of any necessary assignments or amendments to
\npreviously-recorded assignments and filing of any necessary amendments to the
\npreviously filed financing or continuation statements or upon the filing of one
\nor more specified new financing statements, and the taking of such other actions
\nas may be specified in such opinion, the security interests in the Collateral
\nshall remain, after such relocation, valid and perfected.<\/p>\n
(7) LIMITATIONS ON ACTIVITIES. The Borrower shall not, without the
\nprior written consent of the Administrative Agent (acting at the direction of
\nall Lending Groups):<\/p>\n
(1) engage in any business or activity other than those
\n set forth in Article III of the Borrower’s Articles of Incorporation;<\/p>\n
(2) incur any indebtedness, assume or guaranty any
\n indebtedness of any other entity, other than any indebtedness to the
\n Seller thereof incurred in connection with the acquisition of
\n Receivables and Other Conveyed Property, which indebtedness shall be
\n subordinated as set forth in the Receivables Purchase Note, or engage
\n in any transactions with any Affiliates, except as contemplated under
\n this Agreement and the other Basic Agreements (PROVIDED that this
\n clause shall not be deemed to prohibit the sale of Receivables, on
\n arm’s-length terms, to an Affiliate of the Borrower in connection with
\n an Optional Prepayment pursuant to this <\/p>\n
16<\/p>\n
Agreement; PROVIDED FURTHER that no such sales shall be permitted to be
\n made to AmeriCredit Financial Services, Inc.);<\/p>\n
(3) institute proceedings to be adjudicated bankrupt or
\n insolvent, or consent to the institution of bankruptcy or insolvency
\n proceedings against it, or file a petition seeking or consent to
\n reorganization or relief under any applicable federal or state law
\n relating to bankruptcy, or consent to the appointment of a receiver,
\n liquidator, assignee, trustee, sequestrator (or other similar
\n official) of the corporation or a substantial part of its property, or
\n make any assignment for the benefit of creditors, or admit in writing
\n its inability to pay its debts generally as they become due, or take
\n corporate action in furtherance of any such action, in each case,
\n without the affirmative vote of 100% of the members of the Board of
\n Directors of the Borrower, which Board of Directors must have at least
\n one “independent” director;<\/p>\n
(4) fail to (A) to the extent the Borrower’s office is
\n located in the offices of the Seller or any Affiliate of the Seller,
\n pay fair market rent for its executive office space located in the
\n offices of the Seller or any Affiliate of Seller, (B) maintain the
\n Borrower’s books, financial statements, accounting records and other
\n corporate documents and records separate from those of the Seller or
\n any other entity, (C) not commingle the Borrower’s assets with those
\n of the Seller or any other entity, (D) act solely in its corporate
\n name and through its own authorized officers and agents, (E) make
\n investments directly or by brokers engaged and paid by the Borrower or
\n its agents (PROVIDED that if any such agent is an Affiliate of the
\n Borrower, it shall be compensated at a fair market rate for its
\n services), (F) separately manage the Borrower’s liabilities from those
\n of the Seller or any Affiliates of the Seller and pay its own
\n liabilities, including all administrative expenses, from its own
\n separate assets, and (G) pay from the Borrower’s own assets all
\n obligations and indebtedness of any kind incurred by the Borrower;<\/p>\n
17<\/p>\n
(5) amend, alter, change or repeal Articles III, VIII,
\n XIII, XV or XVI of its Certificate of Incorporation as in effect on
\n the date hereof;<\/p>\n
(6) make any payment, including without limitation, on
\n the Receivables Purchase Note, or otherwise make any distributions,
\n including by way of dividend, to its parent, AmeriCredit Financial
\n Services, Inc., if: (A) any Termination Event or Potential Termination
\n Event has then occurred and remains continuing or would result from
\n such payment or other distribution; or (B), after giving effect
\n thereto, the Borrower’s net worth, determined in accordance with GAAP
\n (but exclusive of funds that constitute the Collection Account Reserve
\n and exclusive of the value of the Hedge Contract(s)), would be less
\n than the greater of (x) five percent (5%) of the VFN Balance and (y)
\n five percent (5%) of the largest VFN Balance that had at any time
\n during the Facility Term been outstanding;<\/p>\n
(7) transfer any shares of its common stock, or issue
\n additional shares of its common stock or any other equity interests in
\n the Borrower to any Person other than the Seller or acquire any shares
\n of stock or equity interest in any other entity or have any
\n subsidiaries; and<\/p>\n
(8) merge with or into or be consolidated with any
\n other corporation.<\/p>\n
(8) FINANCIAL REPORTING. The Borrower will maintain for itself a
\nsystem of accounting established and administered in accordance with GAAP, and
\nwill furnish to the Administrative Agent for the benefit of the Secured Parties:<\/p>\n
(1) QUARTERLY REPORTING. Within forty-five (45) days
\n after the close of the first three quarterly periods of each of the
\n Borrower’s fiscal years, for AmeriCredit Corp., consolidated and
\n consolidating unaudited balance sheets (which shall include those of
\n the Borrower and the Servicer) as at the close of such period and
\n consolidated and consolidating related statements of operations and
\n cash flows for the period from the beginning of such fiscal year to<\/p>\n
18<\/p>\n
the end of such quarter, all certified by an Authorized Officer of
\n AmeriCredit Corp.<\/p>\n
(2) ANNUAL REPORTING. Within ninety (90) days after
\n the close of the final quarterly period of each of the Borrower’s
\n fiscal years, for AmeriCredit Corp., consolidated and consolidating
\n audited balance sheets reported on by the Independent Accountants
\n (which shall include those of the Borrower and the Servicer) as at the
\n close of each such fiscal year and consolidated and consolidating
\n related statements of operations and cash flows reported on by the
\n Independent Accountants for the period from the beginning of such
\n fiscal year to the end of such fiscal year, all certified by an
\n Authorized Officer of AmeriCredit Corp.<\/p>\n
(3) COMPLIANCE CERTIFICATE. Together with the
\n financial statements required hereunder, a compliance certificate
\n signed by an Authorized Officer of the Borrower stating that (x) the
\n attached financial statements have been prepared in accordance with
\n generally accepted accounting principles and accurately reflect the
\n financial condition of the Borrower and (y) to the best of such
\n Person’s knowledge, no Termination Event, Potential Termination Event,
\n Servicer Termination Event or Potential Servicer Termination Event
\n exists, or if any Termination Event, Potential Termination Event,
\n Potential Servicer Termination Event or Servicer Termination Event
\n exists, stating the nature and status thereof.<\/p>\n
(9) CORPORATE SEPARATENESS. The Borrower shall (1) abide by all
\ncorporate formalities, including the maintenance of current minute books, (2)
\ncause its financial statements to be prepared in accordance with generally
\naccepted accounting principles in a manner that indicates the separate existence
\nof the Borrower and its assets and liabilities, (3) pay all its liabilities when
\ndue, (4) not assume the liabilities of the Seller or any Affiliate of the
\nSeller, (5) not guarantee the liabilities of the Seller or any Affiliate of the
\nSeller and (6) comply with (and cause the Seller and the Servicer to comply
\nwith) all assumptions upon which counsel to the Borrower is relying in rendering
\nits true sale and nonconsolidation opinions with respect to the Borrower and the
\nSeller.<\/p>\n
19<\/p>\n
(10) The Borrower shall at all times maintain one independent
\ndirector or, if required by any Rating Agency, two independent directors.<\/p>\n
(11) ACCESS TO RECORDS. The Borrower shall (but in any event, prior
\nto a Termination Event, Potential Termination Event, Servicer Termination Event
\nor Potential Servicer Termination Event on no more than four occasions per
\nyear), permit only the Secured Parties and the Administrative Agent or their
\nduly authorized representatives, attorneys or auditors to inspect the books and
\nrecords maintained by the Borrower pursuant hereto at such times as the Secured
\nParties or the Administrative Agent may reasonably request.<\/p>\n
20<\/p>\n
ARTICLE V <\/p>\n
REQUIRED LENDING GROUPS; INTERCREDITOR PROVISIONS<\/p>\n
Section 1.16 AUTHORITY OF REQUIRED LENDING GROUPS. The Borrower
\nhereby irrevocably appoints the Administrative Agent for the benefit of the
\nSecured Parties its true and lawful attorney, with full power of
\nsubstitution, in the name of the Borrower, the Secured Parties or otherwise,
\nbut at the expense of the Borrower, to the extent permitted by law to
\nexercise in its sole and absolute discretion, at any time and from time to
\ntime while any Termination Event has occurred and is continuing, any or all
\nof the rights and powers with respect to all or any of the Collateral as are
\nspecified or referred to in Article VI hereof.<\/p>\n
Section 1.17 RIGHTS OF SECURED PARTIES. Each Secured Party that
\nfrom time to time is not a part of the Required Lending Groups expressly
\nagrees that it shall not assert any right that it may otherwise have, as a
\nSecured Party with respect to the Collateral, to direct the maintenance, sale
\nor other disposition of the Collateral or any portion thereof,
\nnotwithstanding the occurrence and continuation of any Termination Event or
\nany non-performance by the Borrower of any obligation owed to such Secured
\nParty hereunder or under any other Basic Agreement, and each party hereto
\nagrees that the Required Lending Groups (or the Administrative Agent, as
\ndirected by the Required Lending Groups) shall be the only Persons entitled
\nto assert and exercise such rights.<\/p>\n
Section 1.18 DEGREE OF CARE. Notwithstanding any term or
\nprovision of this Agreement, no Secured Party (including any Secured Party
\nthat is a member of the Required Lending Groups) shall incur any liability to
\nAmeriCredit Corp., the Seller, the Servicer or the Borrower for any action
\ntaken or omitted by any Secured Party (including any Secured Party that is a
\nmember of the Required Lending Groups) in connection with the Collateral and,
\nfurther, shall incur no liability to any other Secured Party (including any
\nSecured Party that is part of the Required Lending Groups); PROVIDED,
\nHOWEVER, that the foregoing shall not be deemed to relieve any Secured Party
\nof liability for its own gross negligence, bad faith or willful misconduct.
\nEach Secured Party (including any Secured Party that is a member of the
\nRequired Lending Groups) shall be protected and shall incur no liability to
\nany such party in relying upon the accuracy, acting in reliance upon the
\ncontents and assuming the genuineness of any notice, demand, certificate,
\nsignature, instrument or other document believed by such Secured Party to be <\/p>\n
21<\/p>\n
genuine and to have been duly executed by the appropriate signatory, and
\n(absent manifest error or actual knowledge to the contrary), no such Secured
\nParty shall be required to make any independent investigation with respect
\nthereto. Each Secured Party shall, at all times, be free independently to
\nestablish to its reasonable satisfaction the existence or nonexistence, as
\nthe case may be, of any fact the existence or nonexistence of which shall be
\na condition to the exercise or enforcement of any right or remedy under this
\nAgreement or any of the other Basic Agreements.<\/p>\n
22<\/p>\n
ARTICLE VI<\/p>\n
TERMINATION EVENTS; REMEDIES<\/p>\n
Section 1.19 TERMINATION EVENTS; REMEDIES. (a) If a Termination
\nEvent has occurred and is continuing, then, and in any such event, (A) if such
\nTermination Event is one, only with respect to the Borrower, specified in clause
\n(w) of the definition of Termination Event, the commitments of the APA Banks to
\nthe Borrower shall automatically terminate and the VFN Balance (together with
\naccrued and unpaid interest thereon and all fees and other obligations of the
\nBorrower accrued under and in connection with the Basic Agreements) shall
\nautomatically become due and payable, without presentment, demand, protest or
\nother notice of any kind, all of which are hereby waived by the Borrower, and
\n(B) in the case of any other Termination Event, the Administrative Agent shall,
\nat the direction of the Required Lending Groups, by notice to the Borrower, take
\neither or both of the following actions, at the same or different times: (i)
\ndeclare the commitments of the APA Banks to the Borrower to be terminated, and
\nthereupon the obligations of the APA Banks to make Fundings to the Borrower
\nshall terminate immediately, and (ii) declare the VFN Balance (together with
\naccrued and unpaid interest thereon and all fees and other obligations of the
\nBorrower accrued under and in connection with the Basic Agreements) to be due
\nand payable, and thereupon such amounts shall be immediately due and payable,
\nwithout presentment, demand, protest or other notice of any kind, all of which
\nare hereby waived by the Borrower. In any of such events, the Administrative
\nAgent shall, at the direction of the Required Lending Groups, take whatever
\naction at law or in equity as may appear necessary or desirable in the judgment
\nof the Required Lending Groups to collect and satisfy all Secured Obligations
\n(including, but not limited to, foreclosure upon the Collateral and sale or
\nsecuritization of the Collateral and all other rights available to secured
\nparties under applicable law) or to enforce performance and observance of any
\nobligation, agreement or covenant under any of the Basic Agreements. In
\naddition to all other rights and remedies granted to the Administrative Agent
\nfor the benefit of the Secured Parties by this Agreement, the other Basic
\nAgreements, the UCC and other applicable law, rules, or regulations, the
\nAdministrative Agent may with the consent of the Required Lending Groups, and
\nshall upon the request of the Required Lending Groups, upon the occurrence and
\nduring the continuance of any such Termination Event, exercise any one or more
\nof the following rights and remedies: (i) foreclose upon or otherwise enforce
\nthe security interests in any or all Collateral in any manner <\/p>\n
23<\/p>\n
permitted by applicable law, rules, or regulations or in this Agreement; (ii)
\nnotify any or all Obligors to make payments with respect to Receivables
\ndirectly to the Administrative Agent for the benefit of the Secured Parties;
\n(iii) sell or otherwise dispose of any or all Collateral at one or more
\npublic or private sales, for cash or credit or future delivery, on such terms
\nand in such manner as the Required Lending Groups may determine; (iv) require
\nthe Borrower to assemble the Collateral and make it available to the
\nAdministrative Agent at a place to be designated by the Administrative Agent;
\n(v) enter onto any property where any Collateral is located and take
\npossession thereof with or without judicial process; and (vi) enforce any
\nrights of the Borrower under any Receivable or other agreement to the extent
\nthe Required Lending Groups deems appropriate. <\/p>\n
In furtherance of the Administrative Agent’s rights hereunder, the
\nBorrower hereby grants to the Administrative Agent for the benefit of the
\nSecured Parties an irrevocable, non-exclusive license (exercisable without
\nroyalty or other payment by the Administrative Agent) to use, license or
\nsublicense any patent, trademark, tradename, copyright or other intellectual
\nproperty in which the Borrower now or hereafter has any right, title or
\ninterest, together with the right of access to all media in which any of the
\nforegoing may be recorded or stored. The Borrower hereby agrees that ten
\n(10) days’ notice of any intended sale or disposition of any Collateral is
\nreasonable. Notwithstanding the foregoing, the Administrative Agent shall
\nnot be entitled to take any action and the Required Lending Groups shall not
\nbe entitled to give any direction with respect to the Collateral, except to
\nthe extent provided herein and in the Sale and Servicing Agreement or the
\nother Basic Agreements.<\/p>\n
(1) In the event of any sale, collection, conversion or other
\ndisposition into cash of the Collateral, or any part thereof, after deducting
\nany actual costs and expenses incurred in connection with any such
\ndisposition, the Administrative Agent shall deposit the proceeds thereof into
\nthe Collection Account for distribution on the next succeeding Distribution
\nDate in accordance with the priorities set forth in Section 6.8 of the Sale
\nand Servicing Agreement.<\/p>\n
(2) The Administrative Agent on behalf of the Secured Parties
\nshall be entitled to obtain from the Borrower all records and documentation
\nin the possession of the Borrower pertaining to any Collateral. Upon
\nconsummation of any sale pursuant to this Section 6.1, the Required Lending
\nGroups, or the Administrative Agent acting on behalf of and at the direction
\nof the Required <\/p>\n
24<\/p>\n
Lending Groups, shall have the right to assign, transfer, endorse and deliver
\nto the purchaser or purchasers thereof, free and clear of any Lien, the
\nCollateral, or any portion thereof or any interest therein, so sold. Each
\npurchaser at any such sale shall hold the property purchased by it absolutely
\nfree and clear from any claim or right on the part of the Secured Parties or
\nthe Borrower; and the Borrower hereby irrevocably waives all rights of
\nredemption, stay, marshalling of assets or appraisal that it now has or may
\nat any time in the future have under applicable law or statute now existing
\nor hereafter enacted.<\/p>\n
(3) In addition to the remedies granted in this Agreement and
\nthe other Basic Agreements, if a Termination Event has occurred and is
\ncontinuing, the Administrative Agent shall, at the direction of the Required
\nLending Groups, take whatever action at law or in equity as may appear
\nnecessary or desirable in the judgment of the Required Lending Groups to
\ncollect the amounts then due and thereafter to become due under this
\nAgreement and any of the other Basic Agreements (including but not limited
\nto, all rights available to secured parties under applicable law) or to
\nenforce performance and observance of any obligation, agreement or covenant
\nunder any of the Basic Agreements, including the exercise of the following
\npowers with respect to the Collateral: (i) to demand, sue for, collect,
\nreceive and give acquittance for any and all monies due or to become due upon
\nor by virtue thereof, (ii) to settle, compromise, compound, prosecute or
\ndefend any action or proceeding with respect thereto, (iii) to sell,
\nsecuritize, transfer, assign or otherwise deal with the same or the proceeds
\nthereof as fully and effectively as if the Administrative Agent were the
\nabsolute owner thereof, and (iv) to extend the time of payment of any or all
\nthereof and to make any allowance or other adjustment with respect thereto.
\nAll proceeds of any portion of the Collateral liquidated pursuant to this
\nSection 6.1 shall be applied as set forth in subsection (b) above.<\/p>\n
(4) The Administrative Agent and the Required Lending Groups, as
\nthe case may be, may exercise the powers and rights granted by this Section
\n6.1, without notice or demand to the Borrower except as provided in (a) above.<\/p>\n
(5) In addition to other remedies granted in this Agreement and
\nthe other Basic Agreements, if a Termination Event has occurred and is
\ncontinuing, the Borrower, at the direction of the Administrative Agent
\n(acting at the direction of the Required Lending Groups) or the Required
\nLending Groups, shall at its own expense (or shall cause the Servicer at its
\nown expense pursuant to <\/p>\n
25<\/p>\n
section 5.5 of the Sale and Servicing Agreement) promptly take all additional
\nsteps, if any, as are necessary to create and maintain perfection of the
\nsecurity interest in the Financed Vehicle related to each Receivable (and the
\nproceeds of such Financed Vehicle) on behalf of the Borrower and to create
\nand maintain perfection of the security interest in the Borrower’s security
\ninterest in the Financed Vehicle related to each Receivable (and the proceeds
\nof such Financed Vehicle) on behalf of the Administrative Agent, for the
\nbenefit of the Secured Parties, including, if required by applicable law,
\nhaving a notation of the Borrower’s and\/or the Administrative Agent’s
\nrespective security interests recorded on such Financed Vehicle’s certificate
\nof title.<\/p>\n
Section 1.20 RESTORATION OF RIGHTS AND REMEDIES. If the
\nAdministrative Agent has instituted any proceeding to enforce any right or
\nremedy under this Agreement, and such proceeding has been discontinued or
\nabandoned for any reason, or has been determined adversely to the
\nAdministrative Agent, then and in every such case the Borrower, the
\nAdministrative Agent and each of the Secured Parties shall, subject to any
\ndetermination in such proceeding, be restored severally and respectively to
\ntheir former positions hereunder, and thereafter all rights and remedies of
\nthe Secured Parties shall continue as though no such proceeding had been
\ninstituted.<\/p>\n
Section 1.21 NO REMEDY EXCLUSIVE. No right or remedy herein
\nconferred upon or reserved to the Administrative Agent, the Required Lending
\nGroups or any of the Secured Parties is intended to be exclusive of any other
\nright or remedy, and every right or remedy shall, to the extent permitted by
\nlaw, be cumulative and in addition to every other right and remedy given
\nhereunder or now or hereafter existing at law, in equity or otherwise and
\neach and every right, power and remedy whether specifically herein given or
\notherwise existing may be exercised by the Required Lending Groups, and the
\nexercise of or the beginning of the exercise of any right or power or remedy
\nshall not be construed to be a waiver of the right to exercise at the same
\ntime or thereafter any other right, power or remedy.<\/p>\n
26<\/p>\n
ARTICLE VII<\/p>\n
FUNDINGS; THE VFN<\/p>\n
Section 1.22 LOANS TO BORROWER; FUNDING PROCEDURES; THE VFN.<\/p>\n
(1) FUNDING GENERALLY. Upon the terms and subject to the
\nconditions set forth herein, prior to the Commitment Expiry Date, and
\nPROVIDED that (i) in the case of any CP Lender, no Potential Wind-Down Event
\nor Wind-Down Event shall have occurred and be continuing and (ii) in the case
\nof the APA Banks, no Termination Event or Potential Termination Event shall
\nhave occurred and be continuing, each of the CP Lenders may, in its sole
\ndiscretion, and the APA Banks shall (subject to the terms and conditions
\nspecified herein), collectively make an advance under the terms and
\nconditions hereof (any such advance, a “FUNDING” and the first such advance,
\nthe “INITIAL FUNDING”) to the Borrower from time to time on or after the
\nEffective Date. Each Funding by a Lending Group shall be made on a PRO RATA
\nbasis based on such Lending Group’s Facility Limit as a percentage of the
\naggregate Facility Limit of all Lending Groups; each Funding by an APA Bank
\nin a Lending Group shall be made on a PRO RATA basis based on such APA Bank’s
\nCommitment as a percentage of the aggregate Commitment of all APA Banks in
\nsuch Lending Group. Amounts advanced by the Lending Groups on any day in
\nconnection with a Funding may include CP Fundings, Eurodollar Fundings and
\nABR Fundings or any combination thereof.<\/p>\n
To request Fundings hereunder, the Borrower shall notify the
\nAdministrative Agent of such request by telephone (a) in the case of a
\nEurodollar Funding, not later than 11:00 A.M. (New York time) three (3)
\nBusiness Days before the date of the proposed Funding, (b) in the case of an
\nABR Funding, not later than 12:30 P.M. (New York Time) on the proposed date
\nof such Funding and (c) in the case of a CP Funding, not later than 12:30
\nP.M. (New York time), one (1) Business Day before the date of the proposed
\nFunding. Each day on which a Funding is made hereunder shall be a Business
\nDay. Each such telephonic request for a Funding shall be irrevocable and
\nshall be confirmed promptly by hand delivery or telecopy to the
\nAdministrative Agent of a written funding request (each, a “FUNDING REQUEST”)
\nin a form approved by the Administrative Agent and signed by the Borrower.
\nEach such telephonic and written Funding Request shall specify the following
\ninformation in compliance with Section 7.1(b):<\/p>\n
27<\/p>\n
(1) the requested Advance Amount (calculated in
\n accordance with the definition thereof, and which shall be at least
\n $1,000,000 or integral multiples of $100,000 in excess thereof);<\/p>\n
(2) the date of such Funding, which shall be a Business
\n Day;<\/p>\n
(3) whether such Funding is to be a CP Funding, an ABR
\n Funding or a Eurodollar Funding (PROVIDED that with respect to each
\n Lending Group, prior to the occurrence of a Wind-Down Event applicable
\n to the related CP Lender (or upon the termination of such Wind-Down
\n Event, if applicable), all Fundings on behalf of such Lending Group
\n shall be CP Fundings);<\/p>\n
(4) in the case of a CP Funding or a Eurodollar
\n Funding, the CP Funding Period or Eurodollar Funding Period to be
\n applicable thereto, which shall be a period contemplated by the
\n definition of the term “CP Funding Period” and “Eurodollar Funding
\n Period”, respectively; and<\/p>\n
(5) the location and number of the Borrower’s account
\n to which funds are to be disbursed, which shall comply with the
\n requirements of Section 7.1(e).<\/p>\n
If no election as to the type of Funding is specified, then the requested
\nFunding shall be at the discretion of each Funding Agent (with the consent of
\nthe related CP Lender if the related Funding Agent so selects a CP Funding).
\nPromptly following receipt of a Funding Request in accordance with this Section
\n7.1(a), each Funding Agent shall promptly advise each Secured Party in its
\nLending Group of the details thereof and of the amount of such Secured Party’s
\nloan to be made as part of the requested Funding (if any). Notwithstanding
\nanything to the contrary in this Section 7.1(a), the Borrower shall be permitted
\nto request up to two (2) Fundings per calendar week, and up to nine (9) Fundings
\nper calendar month.<\/p>\n
(2) CONDITIONS TO FUNDING. No Secured Party shall have any
\nobligation to advance any funds to the Borrower in connection with any
\nFunding unless, on the date of such Funding, (i) after giving effect to such
\nFunding, the <\/p>\n
28<\/p>\n
Aggregate Net Investment PLUS the Interest Component of all Commercial Paper
\nissued by the CP Lenders to fund the Aggregate Net Investment would not
\nexceed the Maximum Facility Limit (it being understood that, for purposes of
\ndetermining whether the Interest Component of Commercial Paper may be paid
\nfrom the proceeds of Commercial Paper issued on the maturity date of such
\nCommercial Paper, the amount of such capitalized Interest Component shall
\nconstitute a “Funding”); (ii) with respect to each Lending Group, after
\ngiving effect to such Funding, the related Net Investment of such Lending
\nGroup PLUS the Interest Component of all Commercial Paper issued by the CP
\nLenders in such Lending Group to fund such Net Investment would not exceed
\nthe related Facility Limit (it being understood that, for purposes of
\ndetermining whether the Interest Component of Commercial Paper may be paid
\nfrom the proceeds of Commercial Paper issued on the maturity date of such
\nCommercial Paper, the amount of such capitalized Interest Component shall
\nconstitute a “Funding”); (iii) each APA Bank’s PRO RATA share of such Funding
\nwould not exceed the amount of its unused Commitment (it being understood
\nthat, for purposes of determining whether the Interest Component on
\nCommercial Paper may be paid from the proceeds of Commercial Paper issued on
\nthe maturity date of such Commercial Paper, the amount of such capitalized
\nInterest Component shall constitute a “Funding”); (iv) the Borrower has
\nprovided a Funding Request to the Administrative Agent and each Funding
\nAgent, which Funding Request shall include the calculations necessary to
\nsatisfy the requirement set forth in clauses (i), (ii) and (iii) above and
\nshall also include a certification by an authorized officer of the Borrower
\nthat, to the best of such officer’s knowledge, no event has occurred since
\nthe most recent Funding that would have a material and adverse effect on the
\nReceivables, AmeriCredit Corp., the Seller, the Servicer or the Borrower; (v)
\nthe Borrower shall have deposited in the Collection Account, or shall have
\ngiven irrevocable instructions to the Administrative Agent to withhold from
\nthe proceeds of such Funding and to deposit in the Collection Account, as the
\ncase may be, in each case for allocation to the Collection Account Reserve,
\nan amount equal to the Collection Account Reserve Shortfall Amount, if any;
\n(vi) the VFN is rated at least “A2” by Moody’s and, in the case of HLS, the
\nVFN is rated at least “A” by S&P; (vii) one or more binding and enforceable
\nHedge Contracts in an aggregate notional amount equal to the Aggregate Net
\nInvestment (including any Aggregate Net Investment to be made in connection
\nwith such Funding) are in full force and effect in accordance with the terms
\nof the Sale and Servicing Agreement; (viii) each representation and warranty
\nof the Borrower herein shall be true and correct with respect to the Borrower
\nand each Receivable as of the date of such Funding; (ix) a Potential
\nWind-<\/p>\n
29<\/p>\n
Down Event or a Wind-Down Event (each only in the case of a Funding to be
\nmade by a CP Lender), or a Potential Termination Event or a Termination
\nEvent, shall not have occurred and be continuing; (x) if the Funding is to be
\nmade by a CP Lender through the issuance of Commercial Paper, such CP Lender
\nhas advised the Administrative Agent that, in its sole discretion, it has
\nelected to make such Funding; (xi) the Administrative Agent shall have
\nreceived, duly executed and delivered by Wells Fargo Bank, a lien release in
\nsubstantially the form specified in Section 1(b) of the Intercreditor
\nAgreement; (xii) in connection with the initial Funding following the
\nEffective Date, the conditions precedent set forth in Section 7.1(g) hereof
\nand Section 3.2 of the Sale and Servicing Agreement shall be satisfied; and
\n(xiii) after giving effect to such Funding, no Pool Limitation would be
\nexceeded.<\/p>\n
Notwithstanding anything to the contrary set forth in this
\nAgreement, no APA Bank shall have any obligation to advance funds to the
\nBorrower on any Funding Date if, on such day, any Termination Event or
\nPotential Termination Event shall have occurred and be continuing. The
\nAdministrative Agent shall notify each Funding Agent of the receipt and
\ncontent of any Funding Request by no later than 2:30 P.M. on the date on
\nwhich such Funding Request was received by the Administrative Agent and, in
\nconnection therewith, shall advise such Funding Agent of the portion of such
\nFunding which its related Lending Group is required to make available to the
\nBorrower; if such notification is provided to the Funding Agents after 2:30
\nP.M. on such date, then the Funding Request shall be deemed to be received on
\nthe following Business Day. Each Funding Agent shall promptly advise the APA
\nBanks in its related Lending Group (by telecopy or by telephone call promptly
\nconfirmed in writing by telecopy) of the receipt and content of any Funding
\nRequest.<\/p>\n
The APA Banks’ several obligations to provide the Borrower with
\nfunds pursuant to this Article VII shall terminate on the Commitment Expiry
\nDate. Notwithstanding anything contained in this Section 7.1 or elsewhere in
\nthis Agreement to the contrary, no APA Bank shall be obligated to provide the
\nBorrower with aggregate funds in connection with a Funding Request in an
\namount that would exceed such APA Bank’s unused Commitment then in effect,
\nand the failure of any APA Bank to make its PRO RATA share of the Funding
\navailable to the Borrower (subject to the terms and conditions set forth
\nherein) shall not relieve any other APA Bank of its obligations hereunder.
\nThe obligations of the Lending Groups hereunder to provide Fundings shall be
\nseveral and not joint.<\/p>\n
30<\/p>\n
(3) ADVANCE PERCENTAGE. With respect to any Funding Date, the
\nadvance percentage (the “ADVANCE PERCENTAGE”) to determine the Advance Amount
\nshall be 88%, subject to downward adjustment on such Funding Date as
\ndescribed below:<\/p>\n
(1) if a “Trigger Event” (such term meaning, for purposes
\n of this Section 7.1(c), (i) a “Trigger Event” as defined in any public
\n asset-backed transaction beginning with and including the AmeriCredit
\n Automobile Receivables Trust 1997-C transaction; or (ii) if
\n applicable, any comparable “spread capture event” in any automobile
\n receivables transaction conducted by any Securitization Trust
\n beginning with and including the AmeriCredit Automobile Receivables
\n Trust 1997-C transaction, whether or not defined in such transaction
\n as a “Trigger Event” and whether or not such transaction is a public
\n transaction) occurs which continues unremedied for two (2) monthly
\n reporting periods and is waived by the party or parties entitled to
\n exercise such waiver under the related transaction documentation, then
\n the Advance Percentage in effect at the opening of business on such
\n Funding Date shall be reduced by 2%; PROVIDED that if the Trigger
\n Event relates to a delinquency test failure and occurs after the Pool
\n Factor (as defined in the related transaction documentation) is below
\n 25%, the Advance Percentage shall not be so reduced; PROVIDED FURTHER
\n that if the Advance Percentage has been reduced as a result of the
\n application of this clause (1), the Advance Percentage shall remain at
\n such reduced percentage until such time as the related Trigger Event
\n has been cured for a period of three (3) consecutive months;<\/p>\n
(2) if a Trigger Event occurs and is not waived by the
\n Person or Persons entitled to exercise such waiver under the related
\n transaction documentation beginning with and including the AmeriCredit
\n Automobile Receivables Trust 1997-C transaction (and such Trigger
\n Event shall be deemed unwaived if there is no Person or Persons
\n entitled to so waive), then the Advance Percentage in effect at the
\n opening of business on such Funding Date shall be reduced by 6%
\n (without duplication of any reduction pursuant to clause (1) above);
\n and<\/p>\n
31<\/p>\n
(3) if there is an Excess Spread Deficiency (calculated as
\n of the close of business one (1) Business Day prior to such Funding
\n Date), then the Advance Percentage shall be reduced by the product of
\n (i) the amount of such Excess Spread Deficiency (stated as a
\n percentage) MULTIPLIED BY (ii) 1.7; PROVIDED that if the Advance
\n Percentage has been reduced as a result of the application of this
\n clause (3), the Advance Percentage shall remain at such reduced
\n percentage until such time as the Excess Spread Deficiency has been
\n cured.<\/p>\n
(4) FUNDING REQUEST IRREVOCABLE. The notice of any proposed
\nFunding shall be irrevocable and binding on the Borrower, and the Borrower
\nshall indemnify the Secured Parties against any loss or expense incurred by
\nthe Secured Parties as provided in Section 7.6 hereof.<\/p>\n
(5) DISBURSEMENT OF FUNDS. No later than 3:00 P.M. (New York
\nCity time) on the date on which a Funding is to be made, each Secured Party
\nwill make available to the Borrower, in immediately available funds, the
\namount of the Funding required to be made by it on such day by remitting the
\nrequired amount thereof to an account of the Borrower as designated in the
\nrelated Funding Request.<\/p>\n
(6) THE VFN.<\/p>\n
(1) The Borrower’s obligation to pay the principal of,
\n and interest on, all amounts advanced by the Secured Parties pursuant
\n to any Funding shall be evidenced by a single note of the Borrower (as
\n amended, supplemented or otherwise modified and in effect from time to
\n time, the “VFN”) which shall (1) be dated the date hereof; (2) be in
\n the stated principal amount equal to the Maximum Facility Limit (as
\n reflected from time to time on the grid attached thereto); (3) bear
\n interest as provided therein; (4) be payable to the order of the
\n Administrative Agent for the account of the Secured Parties (in
\n proportion to the pro rata shares of the Lending Groups based upon
\n their respective Net Investments) and mature on the Distribution Date
\n occurring in the calendar month seventy-eight (78) months following
\n the Commitment Expiry Date (unless otherwise accelerated pursuant to
\n the terms of the Basic Agreements); (5) be entitled to the benefits of
\n this Agreement and the other Basic <\/p>\n
32<\/p>\n
Agreements; and (6) be substantially in the form of Exhibit B to this
\n Agreement, with blanks appropriately completed in conformity herewith.
\n In consultation with the Funding Agents, the Administrative Agent shall,
\n and is hereby authorized to, make a notation on the schedule attached to
\n the VFN of the date and the amount of each Funding and the date and amount
\n of the payment of principal thereon, and prior to any transfer of the VFN,
\n the Administrative Agent, on behalf of the Secured Parties, shall
\n endorse the outstanding principal amount of the VFN on the schedule
\n attached thereto. The entries made by the Administrative Agent
\n pursuant to the preceding sentence shall be PRIMA FACIE evidence of
\n the existence and amounts of the obligations recorded therein;
\n PROVIDED, HOWEVER, that failure to make such notation shall not
\n adversely affect the rights of the Secured Parties with respect to the
\n payment obligations of the Borrower hereunder and under the VFN.<\/p>\n
(2) The Borrower shall have the option to prepay all or
\n a portion of the VFN Balance on any Business Day selected by the
\n Borrower (each, an “OPTIONAL PREPAYMENT”), subject to the following
\n terms and conditions:<\/p>\n
1. The Borrower shall have given the Administrative Agent at
\n least two (2) Business Days’ prior written notice of its intent to
\n effect an Optional Prepayment;<\/p>\n
2. Unless such Optional Prepayment is to be effected on a
\n Distribution Date (in which case the relevant calculations with
\n respect to such Optional Prepayment shall be reflected on the
\n applicable Servicer’s Determination Date Certificate), the Borrower
\n shall cause the Servicer to deliver to the Administrative Agent, the
\n Backup Servicer and the Rating Agencies a Servicer’s VFN Prepayment
\n Date Certificate substantially in the form of Exhibit B-1 to the Sale
\n and Servicing Agreement, together with evidence to the Administrative
\n Agent, the Funding Agents, the Backup Servicer and the Rating Agencies
\n (which evidence may consist solely of the Servicer’s VFN Prepayment
\n Date Certificate) that the Borrower <\/p>\n
33<\/p>\n
shall have sufficient funds on the contemplated VFN Prepayment Date to
\n effect the Optional Prepayment in accordance with this Agreement. Any
\n such Servicer’s VFN Prepayment Date Certificate and related evidence shall
\n be delivered to the Administrative Agent no later than 1:00 P.M. (New York
\n time), in draft form at least two (2) Business Days prior to the
\n contemplated VFN Prepayment Date and in final form at least one Business
\n Day prior to the contemplated VFN Prepayment Date. In effecting an
\n Optional Prepayment, the Borrower may (i) use the proceeds of sales of the
\n Receivables (which sales must be made in arm’s-length transactions to
\n Persons other than AFS), and (ii) give effect to Collections on
\n deposit in the Collection Account at such time to the extent
\n consistent with the requirements of paragraph 4 below (as evidenced by
\n the Servicer’s VFN Prepayment Date Certificate).<\/p>\n
3. In connection with any such Optional Prepayment that does
\n not constitute a prepayment in full of the outstanding VFN Balance,
\n then, following receipt by each Funding Agent of the amounts referred
\n to in paragraph 5 below (and confirmation by each such Funding Agent
\n to the Administrative Agent), there shall be released from the Lien of
\n this Agreement (subject to the requirements of paragraph 4 below):
\n (i) a portion of the Receivables comprising the Pool Balance selected
\n by the Borrower in accordance with the FIFO method; and (ii) such
\n other Receivables not then constituting part of the Pool Balance,
\n excluding, however, any Receivable subject to a Repurchase Obligation
\n (“OTHER DESIGNATED RECEIVABLES”) as the Borrower has agreed to sell in
\n an arm’s-length transaction permitted hereby and as are designated by
\n the Borrower and specified in the Servicer’s VFN Prepayment Date
\n Certificate (such Receivables and such Other Designated Receivables,
\n together, in each case, with the related Other Conveyed Property,
\n being collectively referred to as the “PREPAYMENT RELATED
\n COLLATERAL”).<\/p>\n
4. After giving effect to the Optional Prepayment and the
\n release of Prepayment Related Collateral from the Lien of this
\n Agreement on any VFN Prepayment Date, (x) the remaining VFN Balance
\n MINUS Adjusted Collections, PLUS the amount of accrued and <\/p>\n
34<\/p>\n
unpaid interest or discount, as applicable, on all outstanding Fundings,
\n together with all accrued and unpaid fees and other costs and expenses
\n due and owing to the Lending Groups, shall be less than or equal to
\n the amount resulting when the effective Advance Percentage is
\n multiplied by the remaining Pool Balance, (y) none of the Pool
\n Limitations shall be exceeded and (z) a Termination Event or Potential
\n Termination Event shall not have resulted;<\/p>\n
For purposes of the foregoing, Adjusted Collections means
\n the product of (i) the effective Advance Percentage, and (ii) the
\n amount of Collections on deposit in the Collection Account as of the
\n close of business on the Business Day preceding the date of the
\n Servicer’s VFN Prepayment Date Certificate (which Collections shall be
\n available for distribution in accordance with Article VI of the Sale
\n and Servicing Agreement).<\/p>\n
5. On the related VFN Prepayment Date, the Administrative
\n Agent shall have received, for the benefit of the Secured Parties, in
\n immediately available funds, an amount equal to the sum of (i) the
\n portion of the VFN Balance to be prepaid PLUS (ii) an amount equal to
\n all unpaid Carrying Costs (including Carrying Costs not yet accrued)
\n to the extent reasonably determined by the Funding Agents (and
\n notified to the Administrative Agent) to be attributable to that
\n portion of the Aggregate Net Investment to be prepaid PLUS (iii) an
\n aggregate amount equal to the sum of all other amounts due and owing
\n to the Administrative Agent, the Funding Agents and the Secured
\n Parties under this Agreement and the other Basic Agreements, to the
\n extent accrued to such date and to accrue thereafter, as reasonably
\n determined by the Funding Agents (and notified to the Administrative
\n Agent) to be attributable to that portion of the Aggregate Net
\n Investment to be prepaid.<\/p>\n
6. In connection with the Optional Prepayment of any Funding
\n made to the Borrower with the proceeds of Commercial Paper, the
\n Borrower shall, on the related Interest Payment Date, pay to the
\n related CP Lenders all interest or discount, as applicable, accrued
\n and unpaid and to accrue through the maturity date(s) related to such
\n Commercial Paper.<\/p>\n
35<\/p>\n
The Borrower hereby agrees to pay the reasonable legal
\n fees and expenses of the Administrative Agent, the Funding Agents and
\n the Secured Parties in connection with any Optional Prepayment
\n (including, but not limited to, expenses incurred in connection with
\n the release of the Lien of the Administrative Agent over the
\n Receivables and related Other Conveyed Property in connection with
\n such Optional Prepayment) not to exceed $25,000 annually.<\/p>\n
(3) Although the VFN shall be dated the date hereof,
\n Carrying Costs in respect thereof shall be payable in the manner
\n specified therein and in the other Basic Agreements only for the
\n periods during which amounts are outstanding thereunder. In addition,
\n although the stated principal amount of the VFN shall be equal to the
\n Maximum Facility Limit, the VFN shall be enforceable with respect to
\n the Borrower’s obligation to pay the principal thereof only to the
\n extent of the unpaid principal amount outstanding thereunder at the
\n time such enforcement shall be sought. Principal on the VFN shall be
\n payable by the Borrower in the manner and on the dates specified in
\n the VFN and in the other Basic Agreements.<\/p>\n
(7) CONDITIONS PRECEDENT. The obligations of the Secured Parties
\n under this Agreement on any Funding Date are subject to the accuracy of the
\n representations and warranties on the part of the Borrower made herein and
\n in the other Basic Agreements as of such Funding Date. This Agreement
\n shall become effective on the first day on which all of the following
\n conditions precedent have been satisfied (the “EFFECTIVE DATE”):<\/p>\n
(1) The Administrative Agent shall have received such
\n opinions of counsel to the Seller, the Servicer and the Borrower, in
\n form and substance acceptable to the Administrative Agent and each
\n Funding Agent, addressing such matters as each Funding Agent and the
\n Administrative Agent, on behalf of the Secured Parties, shall request.<\/p>\n
(2) The Administrative Agent shall have received a
\n certificate of the Borrower, dated the date hereof, stating that (1)<\/p>\n
36<\/p>\n
its representations and warranties made herein and in the other Basic
\n Agreements are true and correct as of the date hereof, and (2) the
\n Borrower has complied with all agreements and satisfied all conditions
\n to be satisfied on its part pursuant to this Agreement and the other
\n Basic Agreements on or prior to the date hereof.<\/p>\n
(3) All conditions precedent to the authentication and
\n delivery of the VFN under this Agreement shall have been satisfied.<\/p>\n
(4) Each party to a Basic Agreement shall have
\n performed and complied with all agreements and conditions contained in
\n such Basic Agreement and all other documents delivered in connection
\n herewith or therewith which are required to be performed or complied
\n with by such party. <\/p>\n
(5) This Agreement, the other Basic Agreements, the Fee
\n Letters, the Intercreditor Agreement and all agreements, certificates,
\n instruments and other documents required to be delivered in connection
\n herewith and therewith shall have been duly authorized, executed and
\n delivered by the respective parties thereto, shall be in full force
\n and effect and shall be in form and substance satisfactory to the
\n Administrative Agent and the Secured Parties.<\/p>\n
(6) The Administrative Agent shall have received the
\n following, in each case in form and substance satisfactory to it:<\/p>\n
(1) copy of the resolutions of the Board of
\n Directors of the Borrower, certified by the Secretary or an
\n Assistant Secretary as of the date hereof, duly authorizing the
\n execution, delivery and performance by the Borrower of the
\n documents executed by or on behalf of the Borrower in connection
\n with the transactions contemplated by this Agreement and the
\n other Basic Agreements to which it is a party; and attesting to
\n the names and true signatures of the person or persons executing
\n and delivering each such document;<\/p>\n
37<\/p>\n
(2) a copy of the resolutions of the Board of
\n Directors of the Seller and the Servicer, certified by the
\n Secretary or an Assistant Secretary of the Seller and the
\n Servicer as of the date hereof, duly authorizing the execution,
\n delivery and performance by the Seller and the Servicer of each
\n of the Basic Agreements to which each of them is a party and any
\n other documents executed by or on behalf of the Seller and the
\n Servicer in connection with the transactions contemplated
\n thereby; and an incumbency certificate of the Seller and the
\n Servicer as to the person or persons executing and delivering
\n each such document; and<\/p>\n
(3) such other documents and evidence with respect
\n to the Borrower, the Seller, the Servicer and the Back-Up
\n Servicer as the Administrative Agent and the Funding Agents may
\n reasonably request in order to establish the corporate existence
\n and good standing of each thereof, the proper taking of all
\n appropriate corporate proceedings in connection with the
\n transactions contemplated by this Agreement and the other Basic
\n Agreements and the compliance with the conditions set forth
\n herein and therein.<\/p>\n
(7) No fact or condition shall exist under applicable
\n law or applicable regulations thereunder or interpretations thereof by
\n any regulatory authority which, in the reasonable opinion of the
\n Administrative Agent and the Funding Agents, would make it unlawful to
\n issue the VFN or for the Borrower or any of the other parties thereto
\n to perform their respective obligations under this Agreement and the
\n other Basic Agreements.<\/p>\n
(8) The Seller and the Borrower shall have filed any
\n financing statements or amendments thereto, wherever necessary or
\n advisable in the judgment of the Administrative Agent and the Funding
\n Agents, in order to perfect the transfer and assignment of the
\n Receivables to the Borrower and the grant of the security interest
\n therein to the Administrative Agent and shall have delivered file-stamped
\n copies of such financing statements or other evidence of the filing
\n thereof to the Administrative Agent.<\/p>\n
38<\/p>\n
(9) All taxes and fees due in connection with the
\n filing of the financing statements referred to in clause (viii) of
\n this Section 7.1(g) shall have been paid in full or duly provided for.<\/p>\n
(10) No action or proceeding shall have been instituted
\n nor shall any governmental action be threatened before any court or
\n governmental agency nor shall any order, judgment or decree have been
\n issued or proposed to be issued by any court or governmental agency to
\n set aside, restrain, enjoin or prevent the performance of this
\n Agreement or any of the other Basic Agreements or the transactions
\n contemplated hereby or thereby.<\/p>\n
(11) If applicable, each Funding Agent shall have
\n received written confirmation from each of the Rating Agencies that
\n the then-current ratings assigned by each of them to the Commercial
\n Paper issued by its related CP Lender will not be reduced or withdrawn
\n as a result of the execution and delivery of this Agreement by such CP
\n Lender.<\/p>\n
(8) MATURITY OF COMMERCIAL PAPER. No CP Lender shall issue any
\nCommercial Paper related to the VFN with a maturity in excess of sixty (60) days
\nin connection with any financing or refinancing of an increase in the VFN.<\/p>\n
Section 1.23 SHARING OF PAYMENTS, ETC. If any Secured Party (for
\npurposes of this Section 7.2 only, being a “RECIPIENT”) shall obtain any payment
\n(whether voluntary, involuntary, through the exercise of any right of setoff, or
\notherwise) on account of any interest in the VFN owned by it in excess of its
\nratable share of payments on account of any interest in the VFN obtained by such
\nSecured Parties entitled thereto, such Recipient shall forthwith purchase from
\nsuch Secured Parties entitled to a share of such amount participations in the
\npercentage interests owned by such Persons as shall be necessary to cause such
\nRecipient to share the excess payment ratably with each such other Person
\nentitled thereto; PROVIDED, HOWEVER, that if all or any portion of such excess
\npayment is thereafter recovered from such Recipient, such purchase from each
\nsuch other Person shall be rescinded and each such other Person shall repay to
\nthe Recipient the purchase price paid by such Recipient for such participation
\nto the extent of such recovery, together with an amount equal to such other
\nPerson’s ratable share (according to <\/p>\n
39<\/p>\n
the proportion of (a) the amount of such other Person’s required payment to
\n(b) the total amount so recovered from the Recipient) of any interest or
\nother amount paid or payable by the Recipient in respect of the total amount
\nso recovered.<\/p>\n
Section 1.24 RIGHT OF SETOFF. Without in any way limiting the
\nprovisions of Section 7.2, each of the Secured Parties is hereby authorized (in
\naddition to any other rights it may have) at any time after the occurrence of a
\nTermination Event or during the continuance of a Potential Termination Event to
\nsetoff, appropriate and apply (without presentment, demand, protest or other
\nnotice which are hereby expressly waived) any deposits and any other
\nindebtedness held or owing by such Secured Party to, or for the account of, the
\nBorrower against the amount owing by the Borrower hereunder to such Person (even
\nif contingent or unmatured).<\/p>\n
Section 1.25 INTEREST. (a) Any Funding (or portion thereof) funded
\nby a CP Lender through the issuance of Commercial Paper shall bear interest
\ncalculated at such CP Lender’s applicable CP Rate.<\/p>\n
(1) At the option of the Borrower, following a Wind-Down Event for
\na Lending Group, any Funding (or portion thereof) made by a CP Lender other than
\nthrough the issuance of Commercial Paper or by an APA Bank in such Lending Group
\nto the Borrower pursuant to Section 7.1 hereof shall bear interest at either (i)
\nif available from such APA Bank to the Borrower on the related Funding Date, the
\nrelated Eurodollar Rate for such APA Bank or (ii) in all other cases the related
\nAlternate Base Rate for such APA Bank.<\/p>\n
(2) If any principal of, or interest on, any portion of any Funding
\nor any fee or other amount payable by the Borrower hereunder is not paid when
\ndue, whether at stated maturity, upon acceleration or otherwise, such overdue
\namount shall bear interest, after as well as before judgment, at a rate per
\nannum equal to the applicable Alternate Base Rate PLUS 2%.<\/p>\n
(3) Accrued Interest on each Funding shall be payable in arrears on
\neach Interest Payment Date for such Funding and upon the Commitment Expiry Date
\nand, if applicable, upon each Interest Payment Date following the Commitment
\nExpiry Date; PROVIDED that (i) interest accrued pursuant to paragraph (c) of
\nthis Section 7.4 shall be payable on demand, (ii) in the event of any repayment
\nof any Funding or prepayment (other than with respect to a CP <\/p>\n
40<\/p>\n
Funding) of any Funding, accrued interest on the principal amount repaid or
\nprepaid shall be payable on the date of such repayment or prepayment and
\n(iii) in the event of any conversion of any ABR Funding or Eurodollar Funding
\npursuant to Section 7.7, accrued interest on such ABR Funding or Eurodollar
\nFunding shall be payable on the Distribution Date occurring immediately after
\nsuch conversion.<\/p>\n
(4) All interest on Fundings hereunder shall be computed on the
\nbasis of a year of 360 days, except that interest computed when an Alternate
\nBase Rate is based on the Prime Rate shall be computed on the basis of a year of
\n365 days (or 366 days in a leap year), and in each case shall be payable for the
\nactual number of days elapsed (including the first day but excluding the last
\nday). The applicable Alternate Base Rate or Eurodollar Rate shall be determined
\nby each Funding Agent (with notice to the Administrative Agent), and such
\ndetermination shall be conclusive absent manifest error.<\/p>\n
(5) If a Termination Event (other than a Termination Event
\ndescribed in clause (q) of the definition thereof) has occurred and is
\ncontinuing, then interest thereafter accruing on all Fundings then existing or
\nthereafter made shall accrue at the Alternate Base Rate plus 2.00%.<\/p>\n
Section 1.26 PAYMENTS GENERALLY. All payments by the Borrower
\nhereunder shall be at the times, and in the manner, specified in Section 6.8 of
\nthe Sale and Servicing Agreement. Notwithstanding any provision of this
\nAgreement or the other Basic Agreements to the contrary, all amounts due and
\nowing to the Administrative Agent, the Funding Agents and the Secured Parties by
\nthe Borrower hereunder and under the other Basic Agreements (if not due on an
\nearlier date in accordance with the terms hereof or the other Basic Agreements)
\nwill be due and payable on the Distribution Date occurring in the month
\nseventy-eight (78) months following the Commitment Expiry Date.<\/p>\n
Section 1.27 BROKEN FUNDING. In the event of (a) the payment of any
\nprincipal of any Eurodollar Funding other than on the last day of a Eurodollar
\nFunding Period applicable thereto (including as a result of a Termination Event,
\nPotential Termination Event or Optional Prepayment), (b) the conversion of any
\nEurodollar Funding other than on the applicable Interest Payment Date or (c) any
\nfailure to borrow, convert, continue or prepay any Eurodollar Funding on the
\ndate specified in any notice delivered pursuant hereto, then, in any such event,
\nthe Borrower shall compensate the APA Banks, for the loss, cost and expense
\nattribut-<\/p>\n
41<\/p>\n
able to such event. Such loss, cost or expense to any APA Bank shall be
\ndeemed to include an amount determined by such APA Bank to be the excess, if
\nany, of (i) the amount of interest which would have accrued on the principal
\namount of such Eurodollar Funding had such event not occurred, at the
\nEurodollar Rate that would have been applicable to such Eurodollar Funding,
\nfor the period from the date of such event to the Interest Payment Date
\ntherefor (or, in the case of a failure to borrow, convert or continue, for
\nthe period that would have been the related Eurodollar Funding Period), over
\n(ii) the amount of interest which would accrue on such principal amount for
\nsuch period at the interest rate which such APA Bank would bid were it to
\nbid, at the commencement of such period, for dollar deposits of a comparable
\namount and period from other banks in the interbank eurodollar market. A
\ncertificate of any APA Bank setting forth any amount or amounts that such APA
\nBank is entitled to receive pursuant to this Section 7.6 shall be delivered
\nto the Borrower and shall be conclusive absent manifest error. The Borrower
\nshall pay each such APA Bank the amount shown as due on any such certificate
\non the next succeeding Distribution Date after receipt thereof.<\/p>\n
Section 1.28 CONVERSION AND CONTINUATION OF OUTSTANDING ADVANCES MADE
\nBY THE APA BANKS. Prior to the occurrence of a Termination Event or a Potential
\nTermination Event, (a) each ABR Funding hereunder may, at the option of the
\nBorrower, be converted to a Eurodollar Funding, (b) each Eurodollar Funding
\nhereunder may, at the option of the Borrower, be continued as a Eurodollar
\nFunding or converted to an ABR Funding. If a Termination Event or Potential
\nTermination Event has occurred and is continuing, then, for so long as any such
\nTermination Event or Potential Termination Event is continuing, (i) no
\noutstanding Funding may be converted to, or continued as, a Eurodollar Funding,
\n(ii) unless repaid, each Eurodollar Funding shall be converted to an ABR Funding
\non the next succeeding Interest Payment Date related thereto. For any such
\nconversion or continuation, the Borrower shall give the applicable Funding Agent
\nirrevocable notice (each, a “CONVERSION\/CONTINUATION NOTICE”) of such request
\nnot later than 12:30 P.M. (New York time) (i) in the case of a conversion of an
\nABR Funding into a Eurodollar Funding, or a continuation of a Eurodollar Funding
\nas a Eurodollar Funding, three (3) Business Days before the date of such
\nconversion or continuation, as applicable, and (ii) following the occurrence and
\ncontinuation of a Termination Event or a Potential Termination Event, in the
\ncase of a conversion of a Eurodollar Funding into an ABR Funding or a
\ncontinuation of an ABR Funding as an ABR Funding, on the Business Day of such
\nconversion (with a copy to the Administrative Agent). If a
\nConversion\/Continuation Notice has not been timely <\/p>\n
42<\/p>\n
delivered with respect to any ABR Funding or Eurodollar Funding, such Funding
\nshall be automatically continued as, or converted to, an ABR Funding. Each
\nConversion\/Continuation Notice shall specify (a) the requested date (which
\nshall be a Business Day) of such conversion or continuation, (b) the
\naggregate amount and rate option applicable to the Funding which is to be
\nconverted or continued and (c) the amount and rate option(s) of Funding(s)
\ninto which such Funding is to be converted or continued. Prior to the
\noccurrence of a Wind-Down Event with respect to the related CP Lender (or
\nupon the termination of such Wind-Down Event, if applicable), each CP Funding
\nshall be continued, subject to the terms and conditions hereof, for another
\nCP Funding Period of a duration to be agreed upon between the Borrower and
\nsuch CP Lender (or, if the Borrower does not specify the duration, for a
\nduration specified by such CP Lender).<\/p>\n
Section 1.29 ILLEGALITY. (a) Notwithstanding any other provision
\nherein, if, after the Effective Date, the adoption of any Law or bank regulatory
\nguideline or any amendment or change in the interpretation of any existing or
\nfuture Law or bank regulatory guideline by any Official Body charged with the
\nadministration, interpretation or application thereof, or the compliance with
\nany directive of any Official Body (in the case of any bank regulatory
\nguideline, whether or not having the force of Law), shall make it unlawful for
\nany APA Bank to acquire or maintain a Eurodollar Funding as contemplated by this
\nAgreement, (i) such APA Bank shall promptly, after becoming aware thereof,
\nnotify the Funding Agent and the Borrower thereof, (ii) the commitment of such
\nAPA Bank hereunder to make a portion of a Eurodollar Funding, continue any
\nportion of a Eurodollar Funding as such and convert an ABR Funding to a
\nEurodollar Funding shall forthwith be cancelled, and such cancellation shall
\nremain in effect so long as the circumstance described above exists, and (iii)
\nsuch APA Bank’s portion of any Eurodollar Funding then outstanding shall be
\nconverted automatically to an ABR Funding on the last day of the related
\nEurodollar Funding Period, or within such earlier period as required by law.<\/p>\n
If any such conversion of a portion of a Eurodollar Funding occurs on
\na day which is not the last day of the related Eurodollar Funding Period, the
\nBorrower shall pay to such APA Bank such amounts, if any, as may be required to
\ncompensate such APA Bank pursuant to Section 7.6 hereof. If circumstances
\nsubsequently change so that it is no longer unlawful for an affected APA Bank to
\nacquire or to maintain a portion of a Eurodollar Funding as contemplated
\nhereunder, such APA Bank will, as soon as reasonably practicable after such APA<\/p>\n
43<\/p>\n
Bank knows of such change in circumstances, notify the Borrower, and the related
\nFunding Agent (with a copy to the Administrative Agent), and upon receipt of
\nsuch notice, the obligations of such APA Bank to acquire or maintain its
\nacquisition of portions of Eurodollar Fundings or to convert its portion of an
\nABR Funding into portions of Eurodollar Fundings shall be reinstated.<\/p>\n
(1) Each APA Bank agrees that, upon the occurrence of any event
\ngiving rise to the operation of Section 7.8(a) with respect to such APA Bank, it
\nwill, if requested by the Borrower and to the extent permitted by law or by the
\nrelevant Official Body, endeavor in good faith to change the office at which it
\nbooks its portions of Eurodollar Fundings hereunder if such change would make it
\nlawful for such APA Bank to continue to acquire or to maintain its acquisition
\nof portions of Eurodollar Fundings hereunder; PROVIDED that such change may be
\nmade in such manner that such APA Bank, in its sole determination, suffers no
\nunreimbursed cost or expense or any other disadvantage whatsoever.<\/p>\n
Section 1.30 INABILITY TO DETERMINE EURODOLLAR RATE. If, prior to
\nthe first day of any Eurodollar Period:<\/p>\n
(1) the applicable Funding Agent shall have determined
\n (which determination in the absence of manifest error shall be
\n conclusive and binding upon the Borrower) that, by reason of
\n circumstances affecting the relevant market, adequate and reasonable
\n means do not exist for ascertaining the Eurodollar Rate for such
\n Eurodollar Funding Period; or<\/p>\n
(2) the applicable Funding Agent shall have received
\n notice from one or more of the APA Banks in its Lending Group that the
\n Eurodollar Rate determined or to be determined for such Eurodollar
\n Funding Period will not adequately and fairly reflect the cost to such
\n APA Banks (as conclusively certified by such APA Banks) of purchasing
\n or maintaining their affected portions of Eurodollar Fundings during
\n such Eurodollar Funding Period;<\/p>\n
then, in either such event, such Funding Agent shall give telecopy or telephonic
\nnotice thereof (confirmed in writing) to the Administrative Agent, the Borrower
\nand the APA Banks in its Lending Group as soon as practicable thereafter. Until
\nsuch notice has been withdrawn by such Funding Agent, no further Eurodollar<\/p>\n
44<\/p>\n
Fundings shall be made with respect to such Lending Group. Each Funding Agent
\nagrees to withdraw any such notice as soon as reasonably practicable after it is
\nnotified of a change in circumstances which makes such notice inapplicable.<\/p>\n
Section 1.31 FEES. The Borrower hereby agrees to pay to each Funding
\nAgent, for the account of the Secured Parties in its Lending Group (and, if
\napplicable, itself), the fees specified in the Fee Letter. Such payments shall
\nbe made to the Funding Agents on the dates and in the manner specified in the
\nFee Letters.<\/p>\n
45<\/p>\n
ARTICLE VIII<\/p>\n
INDEMNIFICATION<\/p>\n
Section 1.32 INDEMNITY. Without limiting any other rights which the
\nSecured Parties may have hereunder or under applicable law, the Borrower agrees
\nto indemnify the Secured Parties, the Administrative Agent and any of their
\npermitted assigns and their respective agents, officers, directors and employees
\n(collectively, “INDEMNIFIED PARTIES”) from and against any and all damages,
\nlosses, claims, liabilities, costs and expenses, including reasonable attorneys’
\nfees (which such attorneys may be employees of the Secured Parties and the
\nAdministrative Agent) and disbursements (all of the foregoing being collectively
\nreferred to as “INDEMNIFIED AMOUNTS”) awarded against or incurred by any of them
\narising out of or as a result of this Agreement and the other Basic Agreements,
\nexcluding, however, (i) Indemnified Amounts to the extent resulting from gross
\nnegligence or willful misconduct on the part of an Indemnified Party or (ii)
\nrecourse (except as otherwise specifically provided in this Agreement and the
\nother Basic Agreements) for uncollectible Receivables and Other Conveyed
\nProperty. Such Indemnified Amounts shall be paid in accordance with the terms
\nof the other Basic Agreements. Without limiting the generality of the
\nforegoing, the Borrower shall indemnify each Indemnified Party for Indemnified
\nAmounts relating to or resulting from:<\/p>\n
(1) reliance on any representation or warranty made by the Borrower
\n(or any officers of the Borrower) under or in connection with this Agreement or
\nany of the other Basic Agreements, any Funding Request or any other information
\nor report delivered by the Borrower pursuant hereto or thereto, which shall have
\nbeen false or incorrect in any material respect when made or deemed made;<\/p>\n
(2) the failure by the Borrower to comply with any applicable law,
\nrule or regulation with respect to the Collateral, or the nonconformity of the
\nCollateral with any such applicable law, rule or regulation;<\/p>\n
(3) the failure to vest and maintain vested in the Administrative
\nAgent on behalf of the Secured Parties a first priority perfected security
\ninterest in the Collateral (including, without limitation, all Financed Vehicles
\nsecuring Receivables), free and clear of any Lien (other than the Lien of this
\nAgreement);<\/p>\n
46<\/p>\n
(4) 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 or the failure to note the lien of
\nthe Borrower and\/or the Administrative Agent, on behalf of the Secured Parties,
\non the certificate of title to any Financed Vehicle securing a Receivable, which
\nfailure has an adverse effect on the validity, perfected status or priority of
\nthe security interest granted to the Administrative Agent on behalf of the
\nSecured Parties under this Agreement;<\/p>\n
(5) any valid dispute, claim, offset or defense (other than
\ndischarge in bankruptcy of the related Obligor) of the Obligor to the payment of
\nany Receivable (including, without limitation, a defense based on such
\nReceivable not being legal, valid and binding obligation of such Obligor
\nenforceable against it in accordance with its terms), or any other claim
\nresulting from the sale of a Financed Vehicle or services related to such
\nReceivable or the furnishing or failure to furnish such Financed Vehicle or
\nservices;<\/p>\n
(6) any failure of the Borrower to perform its duties, covenants or
\nobligations in accordance with the provisions of this Agreement;<\/p>\n
(7) any product 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 the related Financed Vehicle or related merchandise
\nor services which are the subject of any Receivable; or<\/p>\n
(8) the co-mingling of Collections with any other funds;<\/p>\n
PROVIDED, HOWEVER, that if a CP Lender enters into agreements for the
\npurchase of interests in receivables from one or more Other Transferors, such CP
\nLender shall allocate such Indemnified Amounts which are in connection with its
\nactivities to the Borrower and each Other Transferor; and PROVIDED FURTHER that
\nif such Indemnified Amounts are attributable to the Borrower and not
\nattributable to any Other Transferor, the Borrower shall be solely liable for
\nsuch Indemnified Amounts or, if such Indemnified Amounts are attributable to
\nOther Transferors and not attributable to the Borrower, such Other Transferors
\nshall be solely liable for such Indemnified Amounts.<\/p>\n
47<\/p>\n
Section 1.33 INDEMNITY FOR RESERVES AND EXPENSES. (a) If after the
\ndate hereof, the adoption of any Law or bank regulatory guideline or any
\namendment or change in the interpretation of any existing or future Law or bank
\nregulatory guideline by any Official Body charged with the administration,
\ninterpretation or application thereof, or the compliance with any directive of
\nany Official Body (in the case of any bank regulatory guideline, whether or not
\nhaving the force of Law):<\/p>\n
(1) shall impose, modify or deem applicable any
\n reserve, special deposit or similar requirement (including, without
\n limitation, any such requirement imposed by the Board of Governors of
\n the Federal Reserve System) against assets of, deposits with or for
\n the account of, or credit extended by, any Indemnified Party or shall
\n impose on any Indemnified Party or on the United States market for
\n certificates of deposit or the London interbank market any other
\n condition affecting this Agreement, the other Basic Agreements, any
\n Asset Purchase Agreement, any liquidity agreement between a CP Lender
\n and one or more financial institutions relating to this Agreement, the
\n Collateral or payments of amounts due hereunder or thereunder or its
\n obligation to advance funds under any agreement or otherwise in
\n respect of this Agreement, the other Basic Agreements, any Asset
\n Purchase Agreement, any liquidity agreement between a CP Lender and
\n one or more financial institutions relating to this Agreement, or the
\n Collateral; or<\/p>\n
(2) imposes upon any Indemnified Party any other
\n expense (including, without limitation, reasonable attorneys’ fees and
\n expenses, and expenses of litigation or preparation therefor in
\n contesting any of the foregoing) with respect to this Agreement, the
\n other Basic Agreements, any Asset Purchase Agreement, any liquidity
\n agreement between a CP Lender and one or more financial institutions
\n relating to this Agreement, the Collateral or payments of amounts due
\n hereunder or thereunder or its obligation to advance funds under any
\n agreement or otherwise in respect of this Agreement, the other Basic
\n Agreements, any Asset Purchase Agreement, any liquidity agreement
\n between a CP Lender and one <\/p>\n
48<\/p>\n
or more financial institutions relating to this Agreement, or the
\n Collateral;<\/p>\n
and the result of any of the foregoing is to increase the cost to such
\nIndemnified Party with respect to this Agreement, the other Basic Agreements,
\nany Asset Purchase Agreement, any liquidity agreement between a CP Lender and
\none or more financial institutions relating to this Agreement, the Collateral
\nand the obligations hereunder and thereunder, by an amount reasonably deemed by
\nsuch Indemnified Party to be material, then, on the next succeeding Distribution
\nDate after demand by a Funding Agent, the Borrower shall pay to such Funding
\nAgent, for the benefit of such Indemnified Party, such additional amount or
\namounts as will compensate such Indemnified Party for such increased cost;
\nPROVIDED that no such amount shall be payable with respect to any period
\ncommencing more than two hundred seventy (270) days prior to the date such
\nFunding Agent first notifies the Borrower of its intention to demand
\ncompensation therefor under this Section 8.2(a); PROVIDED FURTHER that if such
\nchange in Law, rule or regulation giving rise to such increased costs or
\nreductions is retroactive, then such 270-day period shall be extended to include
\nthe period of retroactive effect thereof.<\/p>\n
(1) If any Indemnified Party shall have determined that after the
\ndate hereof, the adoption of any applicable Law or bank regulatory guideline
\nregarding capital adequacy, or any change therein, or any change in the
\ninterpretation thereof by any Official Body, or any directive regarding capital
\nadequacy (in the case of any bank regulatory guideline, whether or not having
\nthe force of law) of any such Official Body, has or would have the effect of
\nreducing the rate of return on capital of such Indemnified Party (or its parent)
\nas a consequence of such Indemnified Party’s obligations hereunder or under any
\nof the Basic Agreements, any Asset Purchase Agreement, any liquidity agreement
\nbetween a CP Lender and one or more financial institutions relating to this
\nAgreement, or with respect hereto or thereto to a level below that which such
\nIndemnified Party (or its parent) could have achieved but for such adoption,
\nchange, request or directive (taking into consideration its policies with
\nrespect to capital adequacy) by an amount reasonably deemed by such Indemnified
\nParty to be material, then from time to time, within ten (10) days after demand
\nby a Funding Agent, the Borrower shall pay to such Funding Agent, for the
\nbenefit of such Indemnified Party, such additional amount or amounts as will
\ncompensate such Indemnified Party (or its parent) for such reduction; PROVIDED
\nthat no such amount shall be payable with respect to any period commencing two
\nhundred <\/p>\n
49<\/p>\n
seventy (270) days prior to the date such Funding Agent first notifies the
\nBorrower of its intention to demand compensation under this Section 8.2(b);
\nPROVIDED FURTHER that if such change in Law, rule or regulation giving rise
\nto such increased costs or reductions is retroactive, then such 270-day
\nperiod shall be extended to include the period of retroactive effect thereof.<\/p>\n
(2) The Administrative Agent and each Funding Agent will promptly
\nnotify the Borrower of any event of which it has knowledge, occurring after the
\ndate hereof, which will entitle an Indemnified Party to compensation pursuant to
\nthis Article VIII. A notice by the Administrative Agent or a Funding Agent
\nclaiming compensation for the benefit of an Indemnified Party under this Article
\nVIII and setting forth the additional amount or amounts to be paid to it
\nhereunder shall be conclusive in the absence of manifest error. In determining
\nsuch amount, the Administrative Agent or such Funding Agent may use any
\nreasonable averaging and attributing methods.<\/p>\n
Section 1.34 INDEMNITY FOR TAXES. (a) All payments made by the
\nBorrower under this Agreement and any other Basic Agreement shall be made free
\nand clear of, and without deduction or withholding for or on account of, any
\npresent or future income, stamp or other taxes, levies, imposts, duties,
\ncharges, fees, deductions or withholdings, now or hereafter imposed, levied,
\ncollected, withheld or assessed by any Official Body, EXCLUDING (i) taxes
\nimposed on the net income of the Administrative Agent, any Funding Agent or any
\nother Indemnified Party, however denominated, and (ii) franchise taxes imposed
\non any of them in lieu of income taxes, in each case imposed: (1) by the United
\nStates or any political subdivision or taxing authority thereof or therein; (2)
\nby any jurisdiction under the laws of which the Administrative Agent, any
\nFunding Agent or such Indemnified Party or lending office is organized or in
\nwhich its lending office is located, managed or controlled or in which its
\nprincipal office is located or any political subdivision or taxing authority
\nthereof or therein; or (3) by reason of any connection between the jurisdiction
\nimposing such tax and the Administrative Agent, any such Funding Agent, such
\nIndemnified Party or such lending office other than a connection arising solely
\nfrom this Agreement or any other Basic Agreement or any transaction hereunder or
\nthereunder (all such non-excluded taxes, levies, imposts, duties, charges, fees,
\ndeductions or withholdings, collectively or individually, “TAXES”). If any such
\nTaxes are required to be withheld from any amounts payable to the Administrative
\nAgent, any Funding Agent or any Indemnified Party hereunder, the amounts so
\npayable to the <\/p>\n
50<\/p>\n
Administrative Agent, any such Funding Agent or such Indemnified Party shall
\nbe increased to the extent necessary to yield to such Person (after payment
\nof all Taxes) all amounts payable hereunder at the rates or in the amounts
\nspecified in this Agreement and the other Basic Agreements. The Borrower
\nshall indemnify the Administrative Agent, any Funding Agent or any such
\nIndemnified Party for the full amount of any such Taxes on the Distribution
\nDate immediately succeeding the date of written demand therefor by such Person.<\/p>\n
(1) Each Indemnified Party that is not incorporated under the laws
\nof the United States of America or a state thereof or the District of Columbia
\nshall:<\/p>\n
(1) deliver to the Borrower and to the related Funding
\n Agent (A) two duly completed copies of IRS Form 1001 or Form 4224, or
\n successor applicable form, as the case may be, and (B) if applicable,
\n an IRS Form W-8 or W-9, or successor applicable form, as the case may
\n be;<\/p>\n
(2) deliver to the Borrower and to the related Funding
\n Agent two (2) further copies of any such form or certification on or
\n before the date that any such form or certification expires or becomes
\n obsolete and after the occurrence of any event requiring a change in
\n the most recent form previously delivered by it to the Borrower; and<\/p>\n
(3) obtain such extensions of time for filing and
\n complete such forms or certifications as may reasonably be requested
\n by the Borrower or such Funding Agent;<\/p>\n
unless, in any such case, an event (including, without limitation, any change in
\ntreaty, law or regulation) has occurred prior to the date on which any such
\ndelivery would otherwise be required which renders all such forms inapplicable
\nor which would prevent such Indemnified Party from duly completing and
\ndelivering any such form with respect to it, and such Indemnified Party so
\nadvises the Borrower and the related Funding Agent. Each such Indemnified Party
\nso organized shall certify (i) in the case of an IRS Form 1001 or IRS Form 4224,
\nthat it is entitled to receive payments under the this Agreement and the other
\nBasic Agreements without deduction or withholding of any United States federal
\nincome taxes and (ii) <\/p>\n
51<\/p>\n
in the case of an IRS Form W-8 or IRS Form W-9, that it is entitled to an
\nexemption from United States backup withholding tax. Each Person that
\nbecomes a party to this Agreement as an APA Bank, shall, prior to the
\neffectiveness of such assignment, participation or addition, as applicable,
\nbe required to provide all of the forms and statements required pursuant to
\nthis Section 8.3.<\/p>\n
Section 1.35 OTHER COSTS, EXPENSES AND RELATED MATTERS. The Borrower
\nagrees, upon receipt of a written invoice, to pay or cause to be paid, and to
\nsave the Secured Parties and the Administrative Agent harmless against liability
\nfor the payment of, all reasonable out-of-pocket expenses (including, without
\nlimitation, all reasonable attorneys’, accountants’ and other third parties’
\nfees and expenses, and any filing fees and expenses incurred by officers or
\nemployees of the Secured Parties or the Administrative Agent) incurred by or on
\nbehalf of any Secured Party or the Administrative Agent (i) in connection with
\nthe negotiation, execution, delivery and preparation of this Agreement and the
\nother Basic Agreements and any documents or instruments delivered pursuant
\nhereto or thereto and the transactions contemplated hereby and thereby and (ii)
\nfrom time to time (a) relating to any amendments, waivers or consents under this
\nAgreement and the other Basic Agreements, (b) arising in connection with the
\nAdministrative Agent’s, the Secured Parties’ or their respective agents’
\nenforcement or preservation of rights (including, without limitation, the
\nperfection and protection of the Administrative Agent’s first priority security
\ninterest in the Collateral), or (c) arising in connection with any audit,
\ndispute, disagreement, litigation or preparation for litigation involving this
\nAgreement.<\/p>\n
52<\/p>\n
ARTICLE IX<\/p>\n
MISCELLANEOUS<\/p>\n
Section 1.36 FURTHER ASSURANCES. Each party hereto shall take such
\naction and deliver such instruments to any other party hereto, in addition to
\nthe actions and instruments specifically provided for herein, as may be
\nreasonably requested or required to effectuate the purpose or provisions of this
\nAgreement or to confirm or perfect any transaction described or contemplated
\nherein.<\/p>\n
Section 1.37 WAIVER. Any waiver by any party of any provision of
\nthis Agreement or any right, remedy or option hereunder shall only prevent and
\nestop such party from thereafter enforcing such provision, right, remedy or
\noption if such waiver is given in writing and only as to the specific instance
\nand for the specific purpose for which such waiver was given. The failure or
\nrefusal of any party hereto to insist in any one or more instances, or in a
\ncourse of dealing, upon the strict performance of any of the terms or provisions
\nof this Agreement by any party hereto or the partial exercise of any right,
\nremedy or option hereunder shall not be construed as a waiver or relinquishment
\nof any such term or provision, but the same shall continue in full force and
\neffect.<\/p>\n
Section 1.38 AMENDMENTS; WAIVERS. (a) Subject to the next
\nsucceeding provisos and Section 9.3(b), no amendment, waiver, supplement,
\nmodification or discharge of any provision of this Agreement shall be effective
\nunless the Rating Agency Condition shall have been satisfied and such waiver or
\nmodification shall be in writing and signed by the Borrower, the Administrative
\nAgent, and the Funding Agents in respect of the Required Lending Groups, and
\nthen such amendment, waiver, supplement, modification or discharge shall be
\neffective only in the specific instance and for the specific purpose for which
\ngiven; PROVIDED that no such action that (i) increases or decreases the Facility
\nLimit of any Lending Group hereunder, (ii) reduces amounts payable hereunder to
\nthe Administrative Agent, any Secured Party or any Funding Agent, (iii) modifies
\nin any way the payment of interest and\/or discount, fees, indemnities and other
\namounts to any Secured Party hereunder (or to the Administrative Agent or to any
\nFunding Agent on its behalf), including any defined terms necessary to calculate
\nany such amounts, (iv) extends the Commitment Expiry Date or maturity of any
\namount due hereunder or, except in the case of HLS, affects the ability of any
\nCP Lender to assign its interests to its related APA Banks under its Asset
\nPurchase <\/p>\n
53<\/p>\n
Agreement, (v) amends, modifies or waives any definition used herein which
\nrelates to or refers to a specific Secured Party, (vi) increases the
\nCommitment of any APA Bank, or (vii) modifies the provisions of Section 7.1
\nor this Section 9.3 or the definition of “Required Lending Group” or any
\nother provision hereof specifying the number or percentage of APA Banks
\nrequired to waive, amend or modify any rights hereunder or make any
\ndetermination or grant any consent hereunder; shall in any case be effective
\nwithout the prior written consent of such Person(s) affected thereby;
\nPROVIDED FURTHER that no such action that affects the rights, duties or
\nobligations of the Administrative Agent or of any Funding Agent shall be
\neffective without the prior written consent of the Person(s) affected thereby.
\nIn the case of any waiver, each of the parties hereto shall be restored to its
\nformer position and rights hereunder, and any Termination Event or Servicer
\nTermination Event waived shall be deemed to be cured and not continuing; but no
\nsuch waiver shall extend to any subsequent or other Termination Event or
\nServicer Termination Event, or impair any right consequent thereon.<\/p>\n
(1) It is the intent of the parties hereto that the Borrower have
\nthe right to amend this Agreement solely to add an additional lender or
\nadditional lenders, subject to the approval of the Administrative Agent and each
\nFunding Agent party hereto, which shall not be unreasonably withheld or delayed.<\/p>\n
Section 1.39 SEVERABILITY. In the event that any provision of this
\nAgreement or the application thereof to any party hereto or to any circumstance
\nor in any jurisdiction governing this Agreement shall, to any extent, be invalid
\nor unenforceable under any applicable statute, regulation or rule of law, then
\nsuch provision shall be deemed inoperative to the extent that it is invalid or
\nunenforceable and the remainder of this Agreement, and the application of any
\nsuch invalid or unenforceable provision to the parties, jurisdictions or
\ncircumstances other than to whom or to which it is held invalid or
\nunenforceable, shall not be affected thereby nor shall the same affect the
\nvalidity or enforceability of any other provision of this Agreement. The
\nparties hereto further agree that the holding by any court of competent
\njurisdiction that any remedy pursued by the Administrative Agent or any of the
\nSecured Parties hereunder is unavailable or unenforceable shall not affect in
\nany way the ability of the Administrative Agent or any of the Secured Parties to
\npursue any other remedy available to it or them (subject, however, to any
\nprovisions of this Agreement that expressly limit the exercise of such
\nremedies).<\/p>\n
54<\/p>\n
Section 1.40 NONPETITION COVENANT. Notwithstanding any prior
\ntermination of this Agreement, each of the parties hereto agrees that it shall
\nnot, prior to one year and one day after the Termination Date, institute
\nagainst, or join with any other Person in instituting against, the Borrower any
\nbankruptcy, reorganization, arrangement, insolvency or liquidation proceeding or
\nother similar proceeding under the laws of any jurisdiction. The parties agree
\nthat damages will be an inadequate remedy for breach of this covenant and that
\nthis covenant may be specifically enforced.<\/p>\n
Section 1.41 NOTICES. All notices, demands, certificates, requests
\nand communications hereunder (“notices”) shall be in writing and shall be
\neffective (a) upon receipt when sent through the U.S. mails, registered or
\ncertified mail, return receipt requested, postage prepaid, with such receipt to
\nbe effective the date of delivery indicated on the return receipt, or (b) one
\nBusiness Day after delivery to an overnight courier, or (c) on the date
\npersonally delivered to an Authorized Officer of the party to which sent, or (d)
\non the date transmitted by legible telecopier transmission with a confirmation
\nof receipt, in all cases addressed to the recipient at its address set forth in
\nAnnex A to the Sale and Servicing Agreement. A copy of each notice given
\nhereunder to any party hereto shall also be given to (without duplication) the
\nBorrower, the Funding Agents and the Administrative Agent. Each party hereto
\nmay, by notice given in accordance herewith to each of the other parties hereto,
\ndesignate any further or different address to which subsequent notices shall be
\nsent.<\/p>\n
Section 1.42 TERM OF THIS AGREEMENT. This Agreement shall continue
\nin effect until the Termination Date. On such Termination Date, this Agreement
\nshall terminate, all obligations of the parties hereunder shall cease and
\nterminate and the Collateral, if any, held hereunder and not to be used or
\napplied in discharge of any obligations of the Borrower in respect of the
\nSecured Obligations or otherwise under this Agreement or any of the other Basic
\nAgreements, shall be released to and in favor of the Borrower; PROVIDED that the
\nprovisions of Sections 3.4, 3.5, 7.6, 9.5, and 9.13 and Article VIII shall
\nsurvive any termination of this Agreement and the release of any Collateral upon
\nsuch termination.<\/p>\n
Section 1.43 ASSIGNMENTS; THIRD-PARTY RIGHTS. This Agreement shall
\nbe a continuing obligation of the parties hereto and shall (i) be binding upon
\nthe parties and their respective successors and assigns, and (ii) inure to the
\nbenefit <\/p>\n
55<\/p>\n
of and be enforceable by each Secured Party and the Administrative Agent for
\nthe benefit of the Secured Parties, and by their respective successors,
\ntransferees and assigns. The Borrower may not assign this Agreement, or
\ndelegate any of its duties hereunder, without the prior written consent of
\nall of the Secured Parties.<\/p>\n
Section 1.44 CONSENT OF REQUIRED LENDING GROUPS. In the event that
\nthe consent of the Required Lending Groups is required under the terms hereof or
\nunder the terms of any Basic Agreement, it is understood and agreed that, except
\nas otherwise provided expressly herein, the determination whether to grant or
\nwithhold such consent shall be made solely by each Secured Party in its sole and
\nabsolute discretion.<\/p>\n
Section 1.45 LIMITATION OF LIABILITY. The Administrative Agent shall
\nnot have any obligations under this Agreement or any other Basic Agreement other
\nthan those specifically set forth herein or therein, and no implied obligations
\nof the Administrative Agent shall be read into this Agreement or any other Basic
\nAgreement. Without limiting any other provision hereof, the parties further
\nexpressly acknowledge and agree that in no event shall The Chase Manhattan Bank
\nbe liable under or in connection with this Agreement for indirect, special or
\nconsequential losses or damages of any kind, including lost profits, even if
\nadvised of the possibility thereof and regardless of the form of action by which
\nsuch losses or damages may be claimed.<\/p>\n
Section 1.46 COUNTERPARTS. This Agreement may be executed in two or
\nmore counterparts by the parties hereto, and each such counterpart shall be
\nconsidered an original and all such counterparts shall constitute one and the
\nsame instrument.<\/p>\n
Section 1.47 HEADINGS. The headings of Sections and paragraphs and
\nthe Table of Contents contained in this Agreement are provided for convenience
\nonly. They form no part of this Agreement and shall not affect its construction
\nor interpretation.<\/p>\n
Section 1.48 NO RECOURSE AGAINST CERTAIN PARTIES. No recourse under
\nor with respect to any obligation, covenant or agreement (including, without
\nlimitation, any obligation or agreement to pay fees or any other amount) of the
\nBorrower contained in this Agreement or any other agreement, instrument or
\ndocument entered into by it pursuant hereto or in connection herewith shall be
\nhad <\/p>\n
56<\/p>\n
against any incorporator, Affiliate, stockholder, officer, employee, director
\nor agent of the Borrower solely by virtue of its acting in such capacity, by
\nthe enforcement of any assessment, by any legal or equitable proceeding, by
\nvirtue of any statute or otherwise; it being expressly agreed and understood
\nthat the agreements of the Borrower contained in this Agreement and all of
\nthe other agreements, instruments and documents entered into by it pursuant
\nthereto or in connection herewith are, in each case, solely the corporate
\nobligations of the Borrower, and that no personal liability whatsoever shall
\nattach to or be incurred by any incorporator, stockholder, Affiliate,
\nofficer, employee, director or agent of the Borrower, or any of them, under
\nor by reason of any of the obligations, covenants or agreements of the
\nBorrower contained in this Agreement or in any other such instrument,
\ndocument or agreement, or which are implied therefrom, and that any and all
\npersonal liability of every such incorporator, stockholder, affiliate,
\nofficer, employee, director or agent of the Borrower for breaches by the
\nBorrower of any such obligations, covenants or agreements, which liability
\nmay arise either at common law or at equity, by statute or constitution, or
\notherwise, is hereby expressly waived as a condition of and in consideration
\nfor the execution of this Agreement; PROVIDED that the foregoing shall not
\nrelieve any such Person from any liability it might otherwise have as a
\nresult of its fraudulent actions or omissions.<\/p>\n
Section 1.49 RESPECTIVE RIGHTS OF THE BORROWER AND THE SECURED
\nPARTIES IN THE COLLATERAL. The Borrower hereby acknowledges and agrees that its
\ninterest in the Collateral is subject and subordinate in all respects to its
\npledge of the Collateral to the Secured Parties under this Agreement and that
\nthe Administrative Agent holds the Collateral for the Secured Parties hereunder.<\/p>\n
Section 1.50 CONSENTS TO JURISDICTION. Each of the parties hereto
\nirrevocably submits to the jurisdiction of the United States District Court for
\nthe Southern District of New York, any court in the State of New York located in
\nthe city and county of New York, and any appellate court from any thereof, in
\nany action, suit or proceeding brought against it and related to or in
\nconnection with this Agreement, the other Basic Agreements or the transactions
\ncontemplated hereunder or thereunder or for recognition or enforcement of any
\njudgment and each of the parties hereto irrevocably and unconditionally agrees
\nthat all claims in respect of any such suit or action or proceeding may be heard
\nor determined in such New York State court or, to the extent permitted by law,
\nin such federal court. Each of the parties hereto agrees that a final judgment
\nin any such action, <\/p>\n
57<\/p>\n
suit or proceeding shall be conclusive and may be enforced in other
\njurisdictions by suit on the judgment or in any other manner provided by law.
\nTo the extent permitted by applicable law, each of the parties hereby waives
\nand agrees not to assert by way of motion, as a defense or otherwise in any
\nsuch suit, action or proceeding, any claim that it is not personally subject
\nto the jurisdiction of such courts, that the suit, action or proceeding is
\nbrought in an inconvenient forum, that the venue of the suit, action or
\nproceeding is improper or that this Agreement or any of the other Basic
\nAgreements or the subject matter hereof or thereof may not be litigated in or
\nby such courts. The Borrower hereby irrevocably appoints and designates The
\nPrentice-Hall Corporation System, 500 Central Avenue, Albany, New York
\n12206-2290, as its true and lawful attorney and duly authorized agent for
\nacceptance of service of legal process. The Borrower agrees that service of
\nsuch process upon such Person shall constitute personal service of such
\nprocess upon it. Nothing contained in this Agreement shall limit or affect
\nthe rights of any party hereto to serve process in any other manner permitted
\nby law or to start legal proceedings relating to any of the Basic Agreements
\nagainst the Borrower or its property in the courts of any jurisdiction.<\/p>\n
Section 1.51 TRIAL BY JURY WAIVED. Each of the parties hereto
\nwaives, to the fullest extent permitted by law, any right it may have to a trial
\nby jury in respect of any litigation arising directly or indirectly out of,
\nunder or in connection with this Agreement, any of the other Basic Agreements or
\nany of the transactions contemplated hereunder or thereunder. Each of the
\nparties hereto (a) certifies that no representative, agent or attorney of any
\nother party has represented, expressly or otherwise, that such other party would
\nnot, in the event of litigation, seek to enforce the foregoing waiver and (b)
\nacknowledges that it has been induced to enter into this Agreement and the other
\nBasic Agreements to which it is a party, by among other things, this waiver.<\/p>\n
Section 1.52 LIABILITIES AND RIGHTS OF FUNDING AGENTS. (a)
\nNotwithstanding any provision of this Agreement or any other Basic Agreement:
\n(i) no Funding Agent shall have any obligations under this Agreement or any
\nother Basic Agreement other than those specifically set forth herein and
\ntherein, and no implied obligations of any Funding Agent shall be read into this
\nAgreement or any other Basic Agreement; and (ii) in no event shall any Funding
\nAgent be liable under or in connection with this Agreement or any other Basic
\nAgreement for indirect, special, or consequential losses or damages of any kind,
\nincluding lost profits, even if advised of the possibility thereof and
\nregardless of the form of <\/p>\n
58<\/p>\n
action by which such losses or damages may be claimed. Neither shall any
\nFunding Agent nor any of their respective directors, officers, agents or
\nemployees be liable for any action taken or omitted to be taken in good faith
\nby it or them under or in connection with this Agreement or any other Basic
\nAgreement, except for its or their own gross negligence or willful
\nmisconduct. Without limiting the foregoing, each Funding Agent (a) may
\nconsult with legal counsel, independent public accountants and other experts
\nselected by it and shall not be liable for any action taken or omitted to be
\ntaken in good faith by it in accordance with the advice of such counsel,
\naccountants or experts, (b) shall not be responsible to the Secured Parties,
\nthe Seller, the Servicer or the Borrower for any statements, warranties or
\nrepresentations made in or in connection with this Agreement or the other
\nBasic Agreements (except for its own), (c) shall not be responsible to the
\nSecured Parties, the Seller, the Servicer or the Borrower for the due
\nexecution, legality, validity, enforceability, genuineness, sufficiency or
\nvalue of this Agreement or the other Basic Agreements (except with respect to
\nitself), (d) shall incur no liability under or in respect of any of the
\nCommercial Paper or other obligations of the CP Lenders under this Agreement
\nor the other Basic Agreements and (e) shall incur no liability under or in
\nrespect of this Agreement or the other Basic Agreements by acting upon any
\nnotice (including notice by telephone), consent, certificate or other
\ninstrument or writing (which may be by facsimile) believed by it to be
\ngenuine and signed or sent by the proper party or parties. Notwithstanding
\nanything else herein or in the other Basic Agreements, it is agreed that
\nwhere a Funding Agent may be required under this Agreement or the other Basic
\nAgreements to give notice of any event or condition or to take any action as
\na result of the occurrence of any event or the existence of any condition,
\nsuch Funding Agent agrees to give such notice or take such action only to the
\nextent that it has actual knowledge of the occurrence of such event or the
\nexistence of such condition, and shall incur no liability for any failure to
\ngive such notice or take such action in the absence of such knowledge.<\/p>\n
(1) Each of the Funding Agents hereby represents and warrants to
\nthe Seller and the Servicer that it is duly authorized to act on behalf of any
\nCP Lender and APA Bank in its related Lending Group.<\/p>\n
(2) Each Funding Agent other than the HLS Funding Agent and the
\nAutobahn Funding Agent hereby confirms that the APA Banks in its related Lender
\nGroup have executed and delivered the related Asset Purchase Agreement and, by
\nsuch execution and delivery, have assumed all of the rights and obligations <\/p>\n
59<\/p>\n
of the APA Banks hereunder and under the other Basic Agreements. Except with
\nrespect to HLS, upon effectiveness of this Agreement and, with respect to
\neach APA Bank, upon effectiveness of its related Asset Purchase Agreement,
\neach APA Bank shall have all of the rights and benefits of an “APA Bank”
\nhereunder and under the other Basic Agreements, and each APA Bank shall
\nassume, and be bound by and liable for, all of the duties and obligations of
\nan “APA Bank” hereunder and thereunder to the extent specified herein and
\ntherein, in each case as if such rights, benefits, duties, and obligations
\nwere set forth in their entirety in the related Asset Purchase Agreement.<\/p>\n
(3) All actions taken by the Secured Parties in a Lending Group
\nhereunder and under the Basic Agreements shall be taken by the related Funding
\nAgent on behalf of such Secured Party. <\/p>\n
Section 1.53 CP LENDERS GENERALLY. (a) Each of the parties hereto
\nhereby agrees that it will not institute against, or join with any other Person
\nin instituting against, a CP Lender any bankruptcy, insolvency, reorganization
\nor similar proceeding so long as any Commercial Paper or other notes issued by
\nsuch Purchaser shall be outstanding or there shall not have elapsed one year
\nplus one day since the last day on which any such CP Lender’s Commercial Paper
\nor other notes shall have been outstanding.<\/p>\n
(1) Notwithstanding anything to the contrary contained herein, the
\nobligations of a CP Lender under this Agreement are solely the corporate
\nobligations of such CP Lender and (i) in the case of obligations of a CP Lender
\nother than Commercial Paper, shall be payable at such time as funds are actually
\nreceived by, or are available to, such CP Lender, in excess of funds necessary
\nto pay in full all of its outstanding Commercial Paper and, to the extent funds
\nare not available to pay such obligations, the claims relating thereto shall not
\nconstitute a claim against such CP Lender, but shall continue to accrue. Each
\nparty hereto agrees that the payment of any claim (as defined in Section 101 of
\nTitle 11, United States Code (Bankruptcy)) of any such party against a CP
\nLender, shall be subordinated to the payment in full of all of such Lender’s
\noutstanding Commercial Paper. Notwithstanding the preceding two sentences, HLS
\nand the HLS Liquidity Banks and Autobahn and the Autobahn Liquidity Banks may
\nreach any agreement among themselves as to the matters set forth in the
\npreceding two sentences, and such agreement shall supercede the preceding two
\nsentences with respect to the relationship between HLS or Autobahn, as
\napplicable, and the other parties hereto.<\/p>\n
60<\/p>\n
No recourse under any obligation, covenant or agreement of a CP Lender
\ncontained in this Agreement shall be had against any incorporator, stockholder,
\nofficer, director, member, manager, employee or agent of such CP Lender or any
\nof their Affiliates (solely by virtue of such capacity) by the enforcement of
\nany assessment or by any legal or equitable proceeding, by virtue of any statute
\nor otherwise; it being expressly agreed and understood that this Agreement is
\nsolely a corporate obligation of each CP Lender, and that no personal liability
\nwhatever shall attach to or be incurred by any incorporator, stockholder,
\nofficer, director, member, manager, employee or agent of such CP Lender or any
\nof its Affiliates (solely by virtue of such capacity) or any of them under or by
\nreason of any of the obligations, covenants or agreements of such CP Lender
\ncontained in this Agreement, or implied therefrom, and that any and all personal
\nliability for breaches by a CP Lender of any of such obligations, covenants or
\nagreements, either at common law or at equity, or by statute, rule or
\nregulation, of every such incorporator, stockholder, officer, director, member,
\nmanager, employee or agent is hereby expressly waived as a condition of and in
\nconsideration for the execution of this Agreement; PROVIDED that the foregoing
\nshall not relieve any such Person from any liability it might otherwise have as
\na result of their willful misconduct or of fraudulent actions taken or
\nfraudulent omissions made by them.<\/p>\n
(2) Each of the parties hereto hereby waives any right to setoff
\nwhich it may have or to it may be entitled against a CP Lender or its assets.<\/p>\n
Section 1.54 GOVERNING LAW. This Agreement shall be governed by and
\nconstrued, and the obligations, rights and remedies of the parties hereunder
\nshall be determined, in accordance with the laws of the State of New York.<\/p>\n
61<\/p>\n
IN WITNESS WHEREOF, the parties hereto have executed this Security
\nAgreement as of the date set forth on the first page hereof.<\/p>\n
CP FUNDING CORP., as Borrower<\/p>\n
By:
\n ———————————-
\n Name:
\n Title:<\/p>\n
THE CHASE MANHATTAN BANK,
\n as Administrative Agent on behalf of
\n the Secured Parties<\/p>\n
By:
\n ———————————-
\n Name:
\n Title:<\/p>\n
THE CHASE MANHATTAN BANK,
\n as PARCO Funding Agent<\/p>\n
By:
\n ———————————-
\n Name:
\n Title:<\/p>\n
PARK AVENUE RECEIVABLES
\n CORPORATION,
\n as a Secured Party<\/p>\n
By:
\n ———————————-
\n Name:
\n Title:<\/p>\n
ING BARING (U.S.) CAPITAL
\n MARKETS, LLC,
\n as HLS Funding Agent<\/p>\n
By:
\n ———————————-
\n Name:
\n Title:<\/p>\n
HOLLAND LIMITED
\n SECURITIZATION, INC.,
\n as a Secured Party<\/p>\n
By:
\n ———————————-
\n Name:
\n Title:<\/p>\n
DG BANK DEUTSCHE
\n GENOSSENSCHAFTSBANK AG,
\n as Autobahn Funding Agent<\/p>\n
By:
\n ———————————-
\n Name:
\n Title:<\/p>\n
AUTOBAHN FUNDING
\n COMPANY LLC,
\n as a Secured Party<\/p>\n
By: DG Bank Genossenschaftsbank AG, as
\n its Attorney-in-Fact<\/p>\n
By:
\n ———————————-
\n Name:
\n Title:<\/p>\n
EXHIBIT A<\/p>\n
REPRESENTATIONS AND WARRANTIES OF THE BORROWER<\/p>\n
(a) GENERAL CHARACTERISTICS. Each Receivable:<\/p>\n
(i) has been originated in the United States by the Seller directly
\nor by a dealer for the retail sale or refinancing of a Financed Vehicle in
\nthe ordinary course of its business and such Seller or dealer (as the case
\nmay be) has all necessary licenses and permits to originate Receivables in
\nthe state where either such dealer or the related consumer is located, has
\nbeen fully and properly executed by the parties thereto, and, if originated
\nby a dealer, has been purchased from such dealer by the Seller under an
\nexisting Dealer Agreement or validly assigned by such dealer to the Seller
\nor, with respect to any Receivable sold to the Borrower by the Seller, was
\npurchased by the Seller (and, if originated by the Seller, is an eligible
\nReceivable under any term securitization documents of the Seller);<\/p>\n
(ii) has created a valid, subsisting and enforceable first priority
\nperfected security interest in favor of the Seller in the related Financed
\nVehicle (which security interest has been validly assigned to the Borrower by
\nthe Seller and has been validly assigned by the Borrower to the
\nAdministrative Agent on behalf of the Secured Parties), except as
\nenforceability may be limited by bankruptcy, insolvency, reorganization or
\nsimilar laws affecting the enforcement of creditors’ rights generally;<\/p>\n
(iii) contains customary and enforceable provisions (except as
\nenforceability may be limited by bankruptcy, insolvency, reorganization or
\nsimilar laws affecting the enforcement of creditors’ rights generally) such
\nthat the rights and remedies of the holder thereof shall be adequate for
\nrealization against the collateral of the benefits of the security;<\/p>\n
(iv) provides for level monthly payments (PROVIDED that the payment
\nin the first or last month in the life of the Receivable may be minimally
\ndifferent from the level payment) that fully amortize the amount financed
\nover the original contractual term and yield interest at the annual
\npercentage rate;<\/p>\n
(v) provides for, in the event that the related Contract is
\nprepaid, a prepayment that fully pays the principal balance and includes
\naccrued but unpaid <\/p>\n
A-1<\/p>\n
interest through the date of prepayment in an amount at least equal to the
\nannual percentage rate; and <\/p>\n
(vi) has not been amended, or rewritten or collections with respect
\nthereto deferred or waived except in accordance with the Credit and Servicing
\nProcedures.<\/p>\n
(b) COMPLIANCE WITH LAW. Each Receivable and the sale or
\nrefinancing of the related Financed Vehicle complied at the time it was
\noriginated or made, and at the date such Receivable was sold by the Seller to
\nthe Borrower and pledged by the Borrower under this Agreement, complies, in
\nall material respects, with all requirements of applicable Federal, state and
\nlocal laws and regulations thereunder, including, without limitation, usury
\nlaws, the Federal Truth-in-Lending Act, the Equal Credit Opportunity Act, the
\nFederal Trade Commission Act, the Fair Credit Billing Act, the Fair Credit
\nReporting Act, the Fair Debt Collection Practices Act, the Magnuson-Moss
\nWarranty Act, the Federal Reserve Board’s Regulations B and Z, the Federal
\nTrade Commission Credit Practices Rule, state unfair and deceptive trade
\npractice laws, and state adaptations of the National Consumer Act and of the
\nUniform Consumer Credit Code, and any other applicable consumer credit, equal
\ncredit opportunity and disclosure laws.<\/p>\n
(c) NO FRAUD. Each Receivable was originated by (i) a dealer and
\nwas sold by the dealer to the Seller without any fraud or misrepresentation
\nby the dealer or (ii) the Seller in connection with a refinancing or direct
\nloan.<\/p>\n
(d) BINDING OBLIGATION. Each Receivable represents the genuine,
\nlegal, valid and binding payment obligation in writing of the Obligor,
\nenforceable by the holder thereof in accordance with its terms (except as
\nenforceability may be limited by bankruptcy, insolvency, reorganization or
\nsimilar laws affecting the enforcement of creditors’ rights generally) and
\nall parties to each Receivable had full legal capacity to execute and deliver
\nsuch Receivable and all other documents related thereto and to grant the
\nsecurity interest purported to be granted thereby.<\/p>\n
(e) NO GOVERNMENT OBLIGOR. No Receivable is due from the United
\nStates of America or any state or local government or from any agency,
\ndepartment or instrumentality of the United States of America, any state or
\nlocal government.<\/p>\n
(f) NO OBLIGOR BANKRUPTCY. At the Relevant Cutoff Date no Obligor
\nhad been identified on the records of the Seller as being the subject of a
\ncurrent bankruptcy proceeding.<\/p>\n
A-2<\/p>\n
(g) SCHEDULE OF RECEIVABLES. The information set forth in the
\nSchedule of Receivables was produced from the Seller’s electronic ledger and
\nwas true and correct in all material respects on the Relevant Cutoff Date,
\nand is a complete and accurate description, on the relevant Funding Date, of
\nthe Receivables purchased by the Borrower and pledged to the Secured Parties
\non such date; and the Borrower’s books and records reflect the purchase of
\nsuch Receivables and the pledge thereof to the Secured Parties.<\/p>\n
(h) CERTAIN CHARACTERISTICS OF RECEIVABLES. Each Receivable:<\/p>\n
(i) had a remaining maturity, as of the Relevant Cutoff Date, of not more
\n than 72 months;<\/p>\n
(ii) each Receivable has an original maturity of not more than 72 months;<\/p>\n
(iii) each Receivable had a remaining Principal Balance as of the Relevant
\n Cutoff Date of not more than $60,000;<\/p>\n
(iv) no Receivable was more than 30 days past due as of the Relevant
\n Cutoff Date; and<\/p>\n
(v) no funds have been advanced by the Seller, any dealer, the Borrower
\n or anyone acting on behalf of any of them in order to cause any
\n Receivable to qualify under clause (iv) above.<\/p>\n
(i) RECEIVABLES IN FORCE. No Receivable has been satisfied,
\nsubordinated or rescinded, nor shall any Financed Vehicle have been released
\nfrom the security interests granted by the related Contract in whole or in
\npart.<\/p>\n
(j) NO WAIVER. No provision of any Receivable has been waived,
\nexcept in accordance with the Credit and Servicing Procedures.<\/p>\n
(k) NO DEFENSES. Except for the security interests in favor of
\nthe Seller, the Borrower and the Administrative Agent, the Receivables are
\nfree and clear of all security interests, liens, charges, and encumbrances
\nand to the best knowledge of the Borrower no right of rescission, setoff,
\ncounterclaim or defense has been asserted or threatened with respect to any
\nReceivable.<\/p>\n
A-3<\/p>\n
(l) NO LIENS. No liens or claims have been filed for work, labor
\nor materials relating to a Financed Vehicle that are liens prior to or equal
\nor coordinate with, the security interest in the Financed Vehicle granted by
\nthe Receivable.<\/p>\n
(m) NO DEFAULT. No default, breach, violation or event permitting
\nacceleration under the terms of any Receivable has occurred, and none of the
\nSeller, the Servicer or the Borrower has waived any of the foregoing, except
\nin accordance with the Credit and Servicing Procedures.<\/p>\n
(n) INSURANCE. The Obligor under each Receivable has obtained
\nphysical damage and theft insurance covering the Financed Vehicle, and is
\nrequired under the terms of the Receivable to maintain such insurance.<\/p>\n
(o) TITLE. (i) the Borrower has good and marketable title to
\neach Receivable free and clear of all liens, encumbrances, security interests
\nand rights of others, other than the lien of the Administrative Agent for the
\nbenefit of the Secured Parties, and (ii) the sale and assignment of the
\nReceivables to the Borrower has been perfected under the Relevant UCC.<\/p>\n
(p) RECEIVABLE FILES COMPLETE. There exists a Receivable File
\npertaining to each Receivable and such Receivable File contains (1) where
\napplicable, a fully executed original of the Contract, (2) the original
\nexecuted credit application (or, if no such credit application has been
\ncompleted, other evidence of application being made or credit evaluation
\nbeing conducted), or a copy thereof, together with all applicable amendments
\nand addenda and (3) the original Lien Certificate or application therefor
\nor, for any Contract secured by a Financed Vehicle registered in any state
\nfor which the Paperless Title System is used to evidence title to and any
\nlien in the Financed Vehicle, a computer printout or similar documentary
\nevidence that there is an electronic record in the Paperless Title System
\nindicating that the Financed Vehicle is owned by the Obligor and subject to
\nthe interest of the Seller as first lienholder or secured party (when such
\nelectronic record becomes available through the Paperless Title System).
\nEach of such documents which is required to be signed by the Obligor has been
\nsigned by the Obligor in the appropriate spaces. All blanks on any form have
\nbeen properly filled in and each form has otherwise been correctly prepared.
\nThe complete Receivable File for each Receivable currently is in the
\npossession of the Servicer, as custodian.<\/p>\n
A-4<\/p>\n
(q) LAWFUL ASSIGNMENT. No Receivable has been originated in, or
\nis subject to the laws of, any jurisdiction under which the sale, transfer
\nand assignment of such Receivable shall be unlawful, void or voidable.<\/p>\n
(r) ALL FILINGS MADE. All filings (including, without limitation,
\nUCC filings) necessary in any jurisdiction to give the Administrative Agent
\nfor the benefit of the Secured Parties a first priority perfected security
\ninterest in the Receivables have been made.<\/p>\n
(s) ONE ORIGINAL. There is in existence one, and only one,
\noriginal executed copy of each Receivable.<\/p>\n
(t) LOCKBOX. The Obligor of each Receivable is required to make
\npayments to a lockbox subject to a Lockbox Agreement.<\/p>\n
(u) UCC CHARACTERIZATION. The contract evidencing such Receivable
\nconstitutes “chattel paper” under the Relevant UCC.<\/p>\n
(v) NO ADVERSE SELECTION. No selection procedures adverse to the
\nSecured Parties or the Borrower were used in selecting the Receivables from
\nthe receivables owned by the Seller and\/or otherwise constituting Managed
\nAssets, that met the selection criteria contained in the Sale and Servicing
\nAgreement and set forth above in this Exhibit A.<\/p>\n
A-5<\/p>\n
EXHIBIT B<\/p>\n
FORM OF
\n VARIABLE FUNDING NOTE<\/p>\n
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
\n AMENDED (THE “ACT”). ANY RESALE OF TRANSFER OF THIS NOTE WITHOUT
\n REGISTRATION THEREOF UNDER THE ACT MAY ONLY BE MADE IN A TRANSACTION
\n EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE ACT.<\/p>\n
September 21, 1999<\/p>\n
Reference is hereby made to that certain Amended and Restated
\nSecurity Agreement, dated as of September 21, 1999 (as amended, supplemented
\nor otherwise modified and in effect from time to time, the “SECURITY
\nAGREEMENT”) by and among CP Funding Corp., a Nevada corporation, as borrower
\n(the “BORROWER”), The Chase Manhattan Bank, a New York banking corporation,
\nas administrative agent (in such capacity, the “ADMINISTRATIVE AGENT”) and
\nthe several funding agents, lenders and financial institutions party thereto
\nfrom time to time (collectively, the “SECURED PARTIES”) Capitalized terms
\nused herein and not otherwise defined herein shall have the meanings assigned
\nto such terms in, or incorporated by reference into, the Security Agreement.<\/p>\n
FOR VALUE RECEIVED, the Borrower hereby promises to pay to the
\norder of the Administrative Agent, for the account of and for the benefit of
\nthe Secured Parties at the principal office of the Administrative Agent at
\n450 West 33rd Street, 15th Floor, New York, New York 10001, Attention:
\nStructured Finance Services, a principal sum equal to _____________ MILLION
\nDOLLARS ($____________), in lawful money of the United States of America and
\nin immediately available funds. <\/p>\n
The date and amount of each Funding extended by the Secured Parties
\nto the Borrower under the Security Agreement, and each payment of principal
\nthereof, shall be recorded by the Administrative Agent, for the account of
\nthe applicable Secured Parties, on its books and, prior to any transfer of
\nthis Note (or, at the discretion of the Secured Parties, at any other time),
\nendorsed by the Administrative Agent, on behalf of the Secured Parties, on
\nthe schedule attached <\/p>\n
B-1<\/p>\n
hereto or on any continuation thereof. Although the stated principal amount
\nof this Note is as stated above, this Note shall be enforceable only with
\nrespect to the Borrower’s obligation to pay the principal hereof to the
\nextent of the unpaid principal amount of the Fundings outstanding under the
\nSecurity Agreement at the time such enforcement shall be sought.<\/p>\n
Carrying Costs in respect of the outstanding principal amount of
\nthis Note shall accrue at the rate or rates from time to time in effect
\npursuant to the Security Agreement and payable to the Administrative Agent
\nfor the benefit of the Secured Parties of such Carrying Costs on the dates
\nand in the manner provided for in the Sale and Servicing Agreement and the
\nSecurity Agreement; PROVIDED that, in all events, Carrying Costs constituting
\nAccrued Discount shall be payable by the Borrower on any day on which
\noutstanding Commercial Paper issued by a CP Lender to fund its Net Investment
\nmatures. Carrying Costs due and payable hereunder shall be payable in
\naccordance with the priorities set forth in Section 6.8 of the Sale and
\nServicing Agreement. <\/p>\n
Principal in an amount equal to the Targeted Monthly Principal
\nPayment, if any, will be due and payable on each Distribution Date in
\naccordance with the priorities set forth in Section 6.8 of the Sale and
\nServicing Agreement. Unless otherwise due and payable on an earlier date in
\naccordance with the terms of the Basic Agreements, the entire outstanding
\nprincipal amount of this Note and accrued interest thereon will be due and
\npayable on the Distribution Date occurring in the calendar month
\nseventy-eight (78) months following the Commitment Expiry Date.<\/p>\n
Following the occurrence of a Termination Event, the Administrative
\nAgent may, with the consent of the Required Lending Groups, or shall, at the
\ndirection of the Required Lending Groups, declare all amounts due hereunder
\nto be immediately due and payable and exercise all remedies available to it
\npursuant to the Basic Agreements and applicable law; PROVIDED that, upon the
\noccurrence of an Insolvency Event with respect to the Borrower, all such
\namounts immediately shall become due and owing automatically without the need
\nfor presentment, demand, protest or other notice of any kind, all of which
\nare hereby waived by the Borrower.<\/p>\n
The Borrower’s obligation to make payments hereunder shall be a
\nlimited recourse obligation of the Borrower, payable solely from the
\nCollateral, and no recourse shall be had hereunder to the Borrower for
\npayment hereunder except to the extent of the Collateral. This Note does not
\npurport to summarize the <\/p>\n
B-2<\/p>\n
Security Agreement or the other Basic Agreements, and reference is hereby
\nmade to such agreements for information with respect to the interests,
\nrights, benefits, obligations, proceeds and duties evidenced hereby.<\/p>\n
The Borrower shall pay all costs of collection of any amount due
\nhereunder when incurred including, without limitation, reasonable attorney’s
\nfees and expenses, and including all costs and expenses actually incurred in
\nconnection with the pursuit by the Administrative Agent, on behalf of and at
\nthe direction of the Secured Parties, of any of their rights or remedies
\nreferred to herein or in the Security Agreement, or the protection of, or
\nrealization upon, Collateral, and all such costs shall be payable in
\naccordance with the terms of the Security Agreement.<\/p>\n
The Borrower hereby waives presentment, notice of dishonor, protest
\nand other notice or formality with respect to this Note.<\/p>\n
This Note shall be governed by, and construed in accordance with,
\nthe laws of the State of New York.<\/p>\n
B-3<\/p>\n
IN WITNESS WHEREOF, the undersigned has executed and delivered this
\nVariable Funding Note as of the date and year first above written.<\/p>\n
CP FUNDING CORP.<\/p>\n
By:
\n —————————————-
\n Name:
\n Title:<\/p>\n
B-4<\/p>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[6685],"corporate_contracts_industries":[9416],"corporate_contracts_types":[9560,9570],"class_list":["post-41295","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-americredit-corp","corporate_contracts_industries-financial__credit","corporate_contracts_types-finance","corporate_contracts_types-finance__security"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/41295","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=41295"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=41295"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=41295"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=41295"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}