Exhibit 99.4
THIRD AMENDED AND
RESTATED
CLASS B NOTE PURCHASE AGREEMENT
Dated as of October 30,
2006
among
AMERICREDIT MASTER TRUST,
as Issuer
AMERICREDIT FUNDING CORP.
VII
as a Seller,
AMERICREDIT FINANCIAL SERVICES,
INC.,
as a Seller and as Servicer,
THE CLASS B PURCHASERS PARTIES
HERETO,
DEUTSCHE BANK TRUST COMPANY
AMERICAS
Administrative Agent
DEUTSCHE BANK AG, NEW YORK
BRANCH,
as an Agent,
and
THE OTHER AGENTS PARTIES
HERETO
Relating to
AmeriCredit Master Trust
Floating Rate Asset Backed Notes,
Class B
THIRD AMENDED AND RESTATED
CLASS B NOTE PURCHASE AGREEMENT, dated as of October 30,
2006, by and among AMERICREDIT MASTER TRUST, a Delaware statutory
trust (the “ Issuer ”) AmeriCredit Funding Corp.
VII, a Delaware corporation (“ AFC ”),
individually and in its capacity as a seller (in such capacity, a
“ Seller ”), AMERICREDIT FINANCIAL SERVICES,
INC., a Delaware corporation (“ AmeriCredit ”),
individually, in its capacity as a Seller (together with AFC, the
“ Sellers ”) and in its capacity as servicer (in
such capacity, the “ Servicer ”), the
CLASS B PURCHASERS (as hereinafter defined) from time to time
parties hereto, the AGENTS for the Purchaser Groups from time to
time parties hereto (each such party, together with their
respective successors in such capacity, an “ Agent
”), and, DEUTSCHE BANK TRUST COMPANY AMERICAS, as
administrative agent (together with its successors in such
capacity, the “ Administrative Agent
”).
WITNESSETH
:
WHEREAS, the Issuer, AFC, as a
Seller, AmeriCredit, as a Seller and Servicer, certain Class B
Purchasers, certain Agents, and the Administrative Agent are
parties to a certain Second Amended and Restated Class B Note
Purchase Agreement dated as of November 5, 2003 (the “
Existing Class B Note Purchase Agreement
”);
WHEREAS, the parties hereto desire
to amend and restate the Existing Class B Note Purchase
Agreement in the manner, and on the terms and conditions, herein
provided;
WHEREAS, the Sellers, the Servicer,
the Issuer and The Bank of New York, as Backup Servicer (including
its successors in such capacity, the “ Backup Servicer
”) and Trust Collateral Agent (including its successors in
such capacity, the “ Trust Collateral Agent ”)
are parties to the Third Amended and Restated Sale and Servicing
Agreement, dated as of October 30, 2006 (as the same may from
time to time be amended, modified or otherwise supplemented, the
“ Sale and Servicing Agreement ”);
WHEREAS, the Issuer, the
Administrative Agent, the Trust Collateral Agent and The Bank of
New York, as Trustee (including its successors in such capacity,
the “ Trustee ”) are parties to the Third
Amended and Restated Indenture, dated as of October 30, 2006
(as the same from time to time be amended, supplemented or
otherwise modified, the “ Indenture
”);
WHEREAS, the Issuer proposes to
issue and sell pursuant to the Indenture its Class A Floating
Rate Asset Backed Notes (the “ Class A Notes ”),
Class S Swingline Asset Backed Notes, (the “ Class S
Notes ”), Class B Floating Rate Asset Backed Notes (the
“ Class B Notes ”) and Class C Floating
Rate Asset Backed Notes (the “ Class C Notes
”);
WHEREAS, the Issuer also proposes to
issue pursuant to the Indenture additional classes of notes to be
designated as the Class D Asset Backed Notes (the “
Class D Notes ”) and Class E Asset Backed Notes
(the “ Class E Notes ”);
WHEREAS, Class E Notes are
subordinate to each other class of Notes, the Class D Notes
are subordinate to the Class A Notes, the Class B Notes,
the Class S Notes and the Class C Notes, the Class C Notes are
subordinate to the Class A Notes and the Class B Notes
and, as set forth in the Indenture, to the Class S Notes, and the
Class B Notes are subordinate to the Class A Notes and,
as set forth in the Indenture, to the Class S Notes;
WHEREAS, the Issuer proposes to
establish a Reserve Account (the “ Reserve Account
”) and a Collateral Account (the “ Collateral
Account ”) with the Trustee pursuant to the terms of the
Indenture for the benefit of the holders of the Class A Notes,
the Class S Notes, the Class B Notes and the Class C
Notes;
WHEREAS, the Class B Purchasers
are willing to purchase the Class B Notes in the amount of the
Class B Initial Principal Balance (as defined in the
Indenture) on the Closing Date (as hereinafter defined) and from
time to time thereafter to advance Additional Class B
Principal Amounts (as defined in the Indenture) on the terms and
conditions provided for herein;
NOW THEREFORE, in consideration of
the mutual covenants herein contained, and other good and valuable
consideration, the receipt and adequacy of which are hereby
expressly acknowledged, the parties hereto agree that the Existing
Class B Note Purchase Agreement shall be amended and restated
in its entirety as follows:
ARTICLE 1 DEFINITIONS
1.1 Definitions . All
capitalized terms used herein as defined terms and not defined
herein shall have the meanings given to them in Annex A to the Sale
and Servicing Agreement or the Indenture.
“ Adjusted Commitment
” shall mean on any date of determination, with respect to a
Committed Purchaser for a CP Conduit, such Committed
Purchaser’s Commitment minus the sum of (a) the
Class B Principal Balance held by such Committed Purchaser
plus (b) the aggregate outstanding principal amount of its
Support Advances to such CP Conduit (but excluding any Support
Advances made to fund such CP Conduit’s obligations to
pay interest, fees or other similar amounts relating to the funding
of its making or maintaining its purchases hereunder).
“ Adjusted Eurodollar
Rate ” shall mean, for any Fixed Period, a rate per annum
(rounded upwards, if necessary, to the nearest 1/100th of 1%)
equivalent to the rate determined pursuant to the following
formula:
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Adjusted Eurodollar Rate
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=
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LIBOR Rate
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1-LIBOR Reserve Percentage
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on the first day of such Fixed
Period.
“ Administrative Agent
” has the meaning specified in the preamble to this
Agreement.
“ AFC ” has the
meaning specified in the preamble to this Agreement and includes
any successor or permitted assignee thereof as provided in the
Indenture, the Sale and Servicing Agreement and this
Agreement.
“ Affected Party
” shall mean, with respect to any CP Conduit, any
Support Party of such CP Conduit or any related
Agent.
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“ Agent ” has the
meaning specified in the preamble to this Agreement.
“ Agreement ”
shall mean this Class B Note Purchase Agreement, as amended,
supplemented or otherwise modified from time to time.
“ Alternative Rate
” for any Borrowing means a rate per annum equal to the
Applicable LIBOR Spread per annum above the Adjusted Eurodollar
Rate for such Borrowing; provided , however , that in
the case of
(a) any Fixed Period on or after the
first day on which a Committed Purchaser shall have notified the
related Agent that the introduction of or any change in or in the
interpretation of any law or regulation makes it unlawful, or any
central bank or other governmental authority asserts that it is
unlawful, for such Committed Purchaser to fund such Borrowing at
the Alternative Rate set forth above (and such Committed Purchaser
shall not have subsequently notified such Agent that such
circumstances no longer exist),
(b) any Fixed Period of less than
seven days,
(c) in the event the Adjusted
Eurodollar Rate is not reasonably available to any Agent for such a
Fixed Period or does not adequately and fairly reflect the cost to
a Committed Purchaser of funding such Borrowing, or
(d) any Fixed Period as to which the
related Borrowing will not be funded by issuance of commercial
paper, as determined by the related Agent (on behalf of a
Noncommitted Purchaser) later than 12:00 noon (New York City time)
on the second Business Day preceding the first day of such Fixed
Period,
the “ Alternative Rate
” shall be a floating rate per annum equal to the Prime Rate
in effect on each day of such Fixed Period; provided ,
further , that the Administrative Agent (with the consent of
the Committed Purchasers) and the Issuer may agree in writing from
time to time upon a different “ Alternative Rate
.”
“ AmeriCredit ”
has the meaning specified in the preamble to this Agreement and
includes any successor or permitted assignee thereof as provided in
the Indenture, the Sale and Servicing Agreement and this
Agreement.
“ Applicable LIBOR
Spread ” shall mean, with respect to a
Purchaser Group, the rate identified as its “Applicable
LIBOR Spread” in the Supplemental Fee Letter to which the
Agent for such Purchaser Group is a party.
“ Assignee ” and
“ Assignment ” have the respective meanings
specified in subsection 8.1(e) of this Agreement.
“ Borrowing Notice
” shall mean a notice, substantially in the form of
Exhibit D , delivered by the Issuer to the
Administrative Agent and each Agent pursuant to
Section 12.6(a) of the Indenture and subsection 2.1(c) of
this Agreement, requesting an advance of an Additional Class B
Principal Amount.
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“ Class B Average
Principal Balance ” shall mean, with respect to any
period, the sum of the Class B Principal Balances for each of
the days during such period, divided by the number of days in such
period.
“ Class B Commitment
Fee ” has the meaning specified in subsection 2.3(c)
of this Agreement.
“ Class B Commitment Fee
Rate ” shall mean the applicable rate or rates identified
as the “Class B Commitment Fee Rate” in the
Supplemental Fee Letter entered into on the Initial Closing Date,
as amended, between the Issuer and the Administrative Agent, for
the benefit of, among others, the Class B
Purchasers.
“ Class B Facility
Limit ” shall mean, for any day, the lesser of the
Class B Borrowing Base and the Total Commitment on such
day.
“ Class B Mandatory
Partial Amortization Amount ” shall mean, with respect to
a Partial Expiration Event, the sum of (i) the aggregate
Percentage Interests of all Committed Purchasers which became
Nonextending Class B Purchasers upon the occurrence of such
Partial Expiration Event, times the Class B Principal Balance
on the date on which such Partial Expiration Event occurred, plus
(ii) for each such Committed Purchaser, such Committed
Purchaser’s Liquidity Percentage times its related CP
Conduit’s Percentage Interest of the Class B Principal
Balance on the date on which such Partial Expiration Event
occurred, in each case after giving effect to all purchases of and
payments in respect of the Class B Principal Balance occurring
through and including such date.
“ Class B Monthly
Costs and Expenses ” shall mean on any date of
determination any amounts then due and payable by the Issuer or
either Seller (determined without regard to limitations on the
sources of payment thereof) pursuant to this Agreement, other than
Class B Monthly Interest and Fees and the Class B
Principal Balance.
“ Class B Monthly
Interest and Fees ” shall mean, for any Interest Period,
the sum of (i) interest on the Class B Principal Balance for
the Interest Period ended on the related Distribution Date computed
pursuant to subsection 2.3(a) or 2.3(b), as applicable, plus
or minus (as the case may be) (ii) any Estimated Interest
Adjustment for the immediately preceding Interest Period, plus
(iii) the Class B Usage Fee with respect to such Interest
Period, plus (iv) the Class B Commitment Fee with respect
to such Interest Period.
“ Class B Owners
” shall mean the Class B Purchasers that are owners of
record of the Class B Notes or, with respect to any
Class B Note held by an Agent hereunder as nominee on behalf
of Class B Purchasers in a Purchaser Group, the Class B
Purchasers that are beneficial owners of such Class B Note as
reflected on the books of such Agent in accordance with this
Agreement and the Related Documents.
“ Class B Principal
Balance ” shall mean, with respect to any date, an amount
equal to the excess of (a) the sum of (i) the
Class B Initial Principal Balance, plus (ii) the
aggregate principal amounts of any Additional Class B
Principal Amounts advanced pursuant to Section 12.6(a) of the
Indenture, over (b) the aggregate amount of any principal
payments made to Class B Owners pursuant to the Sale and
Servicing Agreement and the Indenture through and including such
date.
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“ Class B
Purchasers ” shall mean, collectively, the
CP Conduits and the Committed Purchasers.
“ Class B Notes
” has the meaning specified in the recitals to this
Agreement.
“ Class B Usage
Fee ” has the meaning specified in subsection 2.3(c)
of this Agreement.
“ Class B Usage Fee
Rate ” shall mean the applicable rate or rates identified
as the “Class B Usage Fee Rate” in the
Supplemental Fee Letter entered into on the Initial Closing Date
between the Issuer and the Administrative Agent, for the benefit
of, among others, the Class B Purchasers.
“ Collateral Receipt
” means a Custodian’s Acknowledgment in the form of
Schedule A to the Custodian Agreement.
“ Commercial Paper
Notes ” shall mean, with respect to a CP Conduit,
the short-term promissory notes or extendable money market notes
issued by such CP Conduit which are allocated by such
CP Conduit as its funding for its purchasing or maintaining
its Percentage Interest of the Class B Principal Balance
hereunder.
“ Commercial Paper Rate
” shall mean, with respect to a CP Conduit, the rate
identified as its “Commercial Paper Rate” in the
Supplemental Fee Letter to which such CP Conduit or its Agent
is a party.
“ Commitment ”
shall mean, for any Committed Purchaser, the maximum amount of such
Class B Purchaser’s commitment to purchase a portion of
the Class B Principal Balance, as set forth on Schedule
I hereto or the Transfer Supplement or Joinder Supplement by
which such Committed Purchaser became a party to this Agreement or
assumed the Commitment (or a portion thereof) of another
Class B Purchaser, as such amount may be adjusted from time to
time pursuant to Section 2.2 of this Agreement or pursuant to
Transfer Supplement(s) executed by such Class B Purchaser and
its Assignee(s) and delivered pursuant to Section 8.1 of this
Agreement. In the event that a Committed Purchaser which maintains
a portion of its Commitment hereunder in relation to more than one
CP Conduit, such Class B Purchaser shall be deemed to
have issued separate Commitments hereunder in each such
capacity.
“ Commitment Termination
Date ” shall mean, with respect to a Committed Purchaser,
October 30, 2009, as such date may be extended by such
Committed Purchaser from time to time in accordance with
subsection 2.2(c) hereof.
“ Committed Purchaser
” shall mean, with respect to a CP Conduit, each
Class B Purchaser identified as a Committed Purchaser for such
CP Conduit on the signature pages hereto or in the Transfer
Supplement or Joinder Supplement pursuant to which such
CP Conduit became a party hereto, and any Assignee of such
Class B Purchaser to the extent such Assignee has assumed,
pursuant to a Transfer Supplement, the Commitment of such
Class B Purchaser.
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“ Conduit Borrower
” shall mean an entity which is designated as a Conduit
Borrower on the signature pages hereto or in the Transfer
Supplement or Joinder Supplement pursuant to which it became a
party to this Agreement, which entity will fund its purchases of
Class B Notes hereunder by borrowing from a specified
financing conduit.
“ CP Conduit
” shall mean any Class B Purchaser which is designated
as a CP Conduit on the signature pages hereto or in the
Transfer Supplement or Joinder Supplement pursuant to which it
became a party to this Agreement; provided , however
, that if the entity signing this Agreement or such Transfer
Supplement or Joinder Supplement specifies on the related signature
page that it is a Conduit Borrower with respect to a financing
conduit identified on such signature page, then, with respect to
such Class B Purchaser, “CP Conduit” shall mean,
collectively, such Conduit Borrower and such specified financing
conduit.
“ CP Conduit Consolidation
Event ” shall mean the occurrence of any of the following
events (i) the Securities and Exchange Commission, any banking
regulatory authority or any other official body having jurisdiction
over any Committed Purchaser or Agent or any of the Affiliates of
such Committed Purchaser or Agent, shall require the consolidation
of the assets and liabilities of any CP Conduit on the balance
sheet of such Committed Purchaser, Agent or Affiliate, or shall
require that capital be maintained with respect thereto under any
capital requirements as if such assets were owned by such Committed
Purchaser, Agent or Affiliate, (ii) the independent auditors
for any such Committed Purchaser, Agent or Affiliate shall have
advised such Committed Purchaser, Agent or Affiliate in writing
that in their opinion such consolidation is required by GAAP or
applicable law, rule or regulations, (iii) any Affected Party
shall determine that any arrangement or transaction contemplated by
this Agreement or any Related Documents will impose any adverse
regulatory impact on such Affected Party, including, without
limitation, any cost or expense described in Section 2.4
hereof; or (iv) any CP Conduit shall determine that it may be
required to register as an investment company under the Investment
Company Act of 1940, as amended.
“ Dissenting Purchaser
” has the meaning specified in subsection 2.2(c) of this
Agreement.
“ Downgraded Purchaser
” has the meaning specified in subsection 8.1(j) of this
Agreement.
“ Election Period
” has the meaning specified in subsection 2.2(c) of this
Agreement.
“ Estimated Interest
Adjustment ” has the meaning specified in
subsection 2.3(i) of this Agreement.
“ Excluded Taxes
” has the meaning specified in subsection 2.5(a) of this
Agreement.
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“ Fixed Period ”
means with respect to any Borrowing (or portion
thereof):
(a) the period commencing on the
date of the initial funding of such Borrowing (or such portion) and
ending such number of days thereafter as the Issuer shall select in
accordance with Section 2.3(b) ; and
(b) thereafter, each period
commencing on the last day of the immediately preceding Fixed
Period for such Borrowing (or such portion) and ending such number
of days thereafter as the Issuer shall then select in accordance
with Section 2.3(b) ;
provided , however , that:
(i) any Fixed Period in respect of
which interest on the Class B Notes is computed by reference
to the Alternative Rate shall be a period of from one to and
including 29 days (if reasonably available to the Agents), or a
period of one month (or such longer period as is agreed to by the
Issuer and the Agents), as the Issuer may select by written notice
to the Agents furnished not later than 12:00 noon (New York City
time) on the second Business Day preceding the first day of such
Fixed Period;
(ii) any such Fixed Period (other
than a Fixed Period consisting of one day) that would otherwise end
on a day that is not a Business Day shall be extended to the next
succeeding Business Day (unless the related Borrowing shall be
accruing interest at a rate determined by reference to the LIBOR
Rate, in which case if such succeeding Business Day is in a
different calendar month, such Fixed Period shall instead be
shortened to the next preceding Business Day);
(iii) in the case of Fixed Periods
of one day, (A) the initial Fixed Period shall be the day of
the initial funding of such Borrowing, and (B) any
subsequently occurring Fixed Period that is one day shall, if the
immediately preceding Fixed Period is more than one day, be the
last day of such immediately preceding Fixed Period, and if the
immediately preceding Fixed Period is one day, shall be the next
day following such immediately preceding Fixed Period;
(iv) if any Fixed Period for any
Borrowing that commences before the Stated Maturity Date would
otherwise end on a date occurring after the Stated Maturity Date,
such Fixed Period shall end on the Stated Maturity Date and the
duration of each such Fixed Period that commences on or after the
Stated Maturity Date or the date on which the payment of principal
on the Notes has been accelerated, if any , shall be
of such duration as shall be selected by the Agents; and
(v) if the Alternative Rate becomes
applicable to any Borrowing previously funded at the Commercial
Paper Rate or if the Alternative Rate applicable to any Borrowing
changes from the Adjusted Eurodollar Rate to the Prime Rate, the
Fixed Period previously selected for such Borrowing shall terminate
and the Fixed Period for such Borrowing shall be that selected by
the Issuer by written notice to the Agents after it receives notice
of such change.
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“ Governmental
Authority ” shall mean any nation or government, any
state or other political subdivision thereof and any entity
exercising executive, legislative, judicial, regulatory or
administrative functions of or pertaining to government.
“ Indemnitee ”
has the meaning specified in subsection 2.6(a) of this
Agreement.
“ Indenture ” has
the meaning specified in the recitals to this Agreement.
“ Interest Period
” shall mean, with respect to any Distribution Date, the
period from and including the Distribution Date immediately
preceding such Distribution Date (or, in the case of the first
Distribution Date, from and including the Closing Date) to but
excluding such Distribution Date.
“ Interest Rate
Determination Date ” shall mean, for any Interest Period,
the Business Day immediately preceding the Determination Date for
such Interest Period.
“ Investing Office
” shall mean initially, the office of any Class B
Purchaser (if any) designated as such, on the signature pages
hereto or in the Transfer Supplement or the Joinder Supplement by
which it became a party to this Agreement, and thereafter, such
other office of such Class B Purchaser or such Assignee as may
be designated in writing to the applicable Agent, the
Administrative Agent, the Servicer and the Trustee by such
Class B Purchaser or Assignee.
“ Joinder Supplement
” means an agreement among one or more Class B Purchasers,
the Issuer, AmeriCredit, an Agent and the Administrative Agent in
the form of Exhibit C hereto (appropriately
completed).
“ LIBOR Rate ”
shall mean, with respect to any Fixed Period, the rate per annum
shown on Telerate Page 3750 as the composite offered rate for
London interbank deposits for a period equal to such Fixed Period,
as shown under the heading “USD” as of 11:00 a.m.,
London time, two Business Days prior to the first day of such Fixed
Period; provided that in the event no such rate is shown,
the LIBOR Rate shall be the rate per annum based on the rates at
which Dollar deposits for a period equal to such Fixed Period are
displayed on page “LIBOR” of the Reuters Monitor Money
Rates Service or such other page as may replace the LIBOR page on
that service for the purpose of displaying London interbank offered
rates of major banks as of 11:00 a.m., London time, two London
Business Days prior to the first day of such Fixed Period (it being
understood that if at least two such rates appear on such page, the
rate will be the arithmetic mean of such displayed rates);
provided further that in the event fewer than two
such rates are displayed, or if no such rate is relevant, the LIBOR
Rate shall be a rate per annum at which deposits in Dollars are
offered by the principal office of Deutsche Bank AG in London,
England to prime banks in the London interbank market at 11:00 A.M.
(London time) two Business Days before the first day of such Fixed
Period for delivery on such first day and for a period equal to
such Fixed Period.
“ LIBOR Reserve
Percentage ” shall mean, with respect to any Fixed
Period, a percentage (expressed as a decimal) equal to the weighted
average of the percentages in effect during such Interest Period,
as prescribed by the Board of Governors of the Federal Reserve
System (or any successor thereto) for determining the maximum
reserve requirements applicable
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to “Eurocurrency liabilities”
pursuant to Regulation D or any other applicable regulation of
the Federal Reserve Board (or any successor thereto) which
prescribes reserve requirements applicable to “Eurocurrency
liabilities” as currently defined in
Regulation D.
“ Liquidity Percentage
” shall mean, for a Committed Purchaser for a
CP Conduit, such Committed Purchaser’s Adjusted
Commitment with respect to such CP Conduit as a percentage of
the aggregate Adjusted Commitments of all Committed Purchasers for
such CP Conduit.
“ Majority Class B
Owners ” shall mean, at any time, Class B Owners
having more than 51% of the aggregate Percentage Interests of all
Class B Owners.
“ Majority Class B
Purchasers ” shall mean, at any time, Committed
Purchasers having Commitments aggregating more than 51% of the
Total Commitment.
“ Maximum Purchase
Amount ” shall mean, for any CP Conduit, the
aggregate Commitments of its Committed Purchasers, as set forth on
Schedule I hereto.
“ Nonextending Class B
Purchaser ” shall mean, after its respective Commitment
Termination Date, each Committed Purchaser which has declined to
extend such Commitment Termination Date in accordance with
subsection 2.2(c) hereof.
“ Partial Expiration
Event ” has the meaning specified in subsection 2.2(c) of
this Agreement.
“ Participant ”
has the meaning specified in subsection 8.1(d) of this
Agreement.
“ Participation ”
has the meaning specified in subsection 8.1(d) of the
Agreement.
“ Percentage Interest
” shall mean, as to any Class B Purchaser at any time of
determination, the percentage equivalent of a fraction the
numerator of which shall be an amount equal to the portion of the
unpaid principal amount of the Class B Principal Balance owing
to such Class B Purchaser (or, if no amount of the
Class B Principal Balance is outstanding, the amount of its
Commitment, if any) at such time (after giving effect to all
Assignments effective on or prior to such time of determination)
and the denominator of which shall be an amount equal to the
aggregate Class B Principal Balance (or, if no amount of the
Class B Principal Balance is outstanding, the Total
Commitment) at such time.
“ Permitted Transferee
” shall mean (i) each Class B Purchaser, each
Support Party, each Agent (in its individual capacity), the
Administrative Agent (in its individual capacity) and, with respect
to each transferring Class B Purchaser, any commercial paper
conduit administered by the related Agent, (ii) each other
Person who has been consented to as a potential Transferee by the
Sellers (which consent shall not be withheld (except for a
commercially reasonable purpose or reason) or delayed) and
(iii) after the occurrence of an Event of Default, any other
Person.
“ Prime Rate ”
shall mean, for any day, a fluctuating rate of interest per annum
equal to the higher of: (i) a fluctuating rate of interest per
annum equal to the “Prime Rate” most
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recently published in the Wall Street
Journal and described as “the base rate on corporate
loans posted by at least 75% of the nation’s 30 largest
banks”, and (ii) 0.50% above the rate per annum at which
Deutsche Bank AG, New York Branch, as a branch of a foreign bank,
in its reasonable discretion, can acquire federal funds in the
interbank overnight federal funds market, through brokers of
recognized standing or otherwise, as most recently determined by
Deutsche Bank AG, New York Branch. The Prime Rate is not
necessarily intended to be the lowest rate of interest determined
by Deutsche Bank AG or Deutsche Bank AG, New York Branch, in
connection with extensions of credit.
“ Purchase Date ”
shall mean the Closing Date and each Borrowing Date.
“ Purchase Termination
Date ” shall mean, for each Class B Purchaser, the
earliest to occur of (i) the Commitment Termination Date for
such Purchaser or, with respect to a Class B Purchaser which is a
CP Conduit, the first date on which Commitment Termination Dates
for all its Committed Purchasers have occurred, (ii) the date
of any termination of the Total Commitment, in whole, by the Issuer
pursuant to Section 2.2 and (iii) the effective date on
which the Commitments are terminated or deemed terminated pursuant
to Section 2.8.
“ Purchaser Group
” shall mean each group of Class B Purchasers consisting
of (i) a CP Conduit, and (ii) the Committed
Purchasers with respect to such CP Conduit.
“ Purchaser Percentage
” shall mean, with respect to a CP Conduit, its Maximum
Purchase Amount as a percentage of the Total Commitment.
“ Regulatory Change
” shall mean, as to each Class B Purchaser, any change
occurring after the date of the execution and delivery of this
Agreement or, if later, the date of the execution and delivery of
the Transfer Supplement or the Joinder Supplement by which it
became party to this Agreement; in the case of a Participant, any
change occurring after the date on which its Participation became
effective, or in the case of an Support Party, any change occurring
after the date it became such an Support Party, in any (or the
adoption after such date of any new):
(i) United States Federal or state
law or foreign law applicable to such Class B Purchaser,
Participant or Support Party; or
(ii) regulation, interpretation,
directive, guideline or request (whether or not having the force of
law) applicable to such Class B Purchaser, Participant or
Support Party of any court or other judicial authority or any
Governmental Authority charged with the interpretation or
administration of any law referred to in clause (i) or of any
fiscal, monetary or other Governmental Authority or central bank
having jurisdiction over such Class B Purchaser, Participant
or Support Party.
“ Related Documents
” shall mean, collectively, this Agreement (including all
effective Supplemental Fee Letters, Transfer Supplements, and
Joinder Supplements), the other Note Purchase Agreements, the
Indenture, the Sale and Servicing Agreement, the Notes, and all
supplements, agreements and instruments related thereto.
“ Replacement Purchaser
” has the meaning specified in
subsection 2.5(d).
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“ Required Class B
Owners ” shall mean, at any time, Class B Owners
having more than 66 2 / 3
% of the aggregate
Percentage Interests of all Class B Owners.
“ Required Class B
Purchasers ” shall mean, at any time, Committed
Purchasers having Commitments aggregating more than 66
2
/ 3 % of the Total
Commitment.
“ Requirement of Law
” shall mean, as to any Person, any law, treaty, rule or
regulation, or determination of an arbitrator or Governmental
Authority, in each case applicable to or binding upon such Person
or to which such Person is subject, whether federal, state or local
(including usury laws, the Federal Truth in Lending Act and
Regulation Z and Regulation B of the Board of Governors of the
Federal Reserve System).
“ Reserve Account
” has the meaning specified in the recitals to this
Agreement.
“ Sale and Servicing
Agreement ” has the meaning specified in the recitals to
this Agreement.
“ Supplemental Fee
Letter ” shall mean each letter agreement, designated
therein as a Supplemental Fee Letter and then in effect, between
the Sellers and an Agent, as such letter agreement may be amended
or otherwise modified from time to time.
“ Support Advances
” shall mean, with respect to a Committed Purchaser and its
related CP Conduit, any participation held by such Committed
Purchaser in such CP Conduit’s Percentage Interest in
the Class B Principal Balance which was purchased from such
CP Conduit pursuant to a Support Facility and any loans or
other advances made by such Committed Purchaser to such
CP Conduit pursuant to a Support Facility to fund such
CP Conduit’s making or maintaining its purchases
hereunder.
“ Support Facility
” shall mean any liquidity or credit support agreement with a
CP Conduit which relates to this Agreement (including any
agreement to purchase an assignment of or participation in
Class B Notes).
“ Support Party ”
shall mean any other bank, insurance company or other financial
institution extending or having a commitment to extend funds to or
for the account of a CP Conduit (including by agreement to
purchase an assignment of or participation in Class B Notes or
by swap agreement) under a Support Facility. Each Committed
Purchaser for a CP Conduit (other than a Committed Purchaser
which is also a CP Conduit) shall be deemed to be a Support Party
for such CP Conduit.
“ Taxes ” has the
meaning specified in subsection 2.5(a) of this
Agreement.
“ Telerate Page 3750
” shall mean the display page currently so designated on the
Bridge Telerate Markets Report (or such other page as may replace
that page on that service or any service which is a successor
thereto for the purpose of displaying comparable rates or
prices).
“ Termination Date
” shall mean the first date on which the Purchase Termination
Date for all Class B Purchasers has occurred.
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“ Termination Event
” shall mean:
(a) the occurrence of any Event of
Default or Servicer Termination Event or the occurrence of an event
or condition which would be an Event of Default or Servicer
Termination Event but for a waiver of such event by the Noteholders
or the Trustee (unless waived by the Required Class B Owners
and Required Class B Purchasers);
(b) any breach on the part of the
Issuer, AFC, either Seller, AmeriCredit or the Servicer of any
representation or warranty made or deemed made in this Agreement,
which breach continues unremedied for a period of 30 days after the
earlier of the date on which the Issuer, AFC, such Seller,
AmeriCredit or the Servicer, as the case may be, shall have had
actual knowledge of such breach and the date on which written
notice thereof, requiring the same to be remedied, shall have been
given to the Issuer, AFC, such Seller, AmeriCredit or the Servicer,
as the case may be, by the Administrative Agent, Required
Class B Owners or Required Class B Purchasers;
provided , however , that a Termination Event shall
be deemed not to have occurred under this clause (b) with
respect to a breach of a representation or warranty made or deemed
made in this Agreement with respect to a Receivable if the Seller
has accepted reassignment of such Receivable in accordance with the
terms and conditions of the Sale and Servicing
Agreement;
(c) any failure on the part of the
Issuer, AFC, either Seller, AmeriCredit or the Servicer duly to
observe or perform in any material respect any of the covenants or
agreements on its part to be observed or performed contained in
this Agreement (other than as provided in clauses (a) or
(b) above) which continues unremedied for a period of 30 days
after the earlier of the date on which the Issuer, AFC, such
Seller, AmeriCredit or the Servicer, as the case may be, shall have
had actual knowledge of such breach and the date on which written
notice thereof, requiring the same to be remedied, shall have been
given to the Issuer, AFC, such Seller, AmeriCredit or the Servicer,
as the case may be, by the Administrative Agent, Required
Class B Owners or Required Class B Purchasers.
“ Total Commitment
” shall mean, on any date of determination, the aggregate
Commitments of the Committed Purchasers.
“ Transfer ” has
the meaning specified in subsection 8.1(c) of this
Agreement.
“ Transfer Supplement
” has the meaning specified in subsection 8.1(e) of this
Agreement.
“ Transferee ”
has the meaning specified in subsection 8.1(c) of this
Agreement.
“ Trustee ” has
the meaning specified in the recitals to this Agreement.
“ written ” or
“ in writing ” (and other variations thereof)
shall mean any form of written communication or a communication by
means of telex, telecopier device, telegraph or cable.
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1.2 Other Definitional
Provisions .
(a) Unless otherwise specified
therein, all terms defined in this Agreement shall have the defined
meanings when used in any certificate or other document made or
delivered pursuant hereto.
(b) The words “hereof”,
“herein”, and “hereunder” and words of
similar import when used in this Agreement shall refer to this
Agreement as a whole and not to any particular provision of this
Agreement; and Section, subsection and Exhibit references are to
this Agreement, unless otherwise specified. The words
“including” and “include” shall be deemed
to be followed by the words “without
limitation”.
ARTICLE 2 AMOUNT AND TERMS OF
COMMITMENTS
2.1 Purchases .
(a) On and subject to the terms and
conditions of this Agreement, on the Closing Date each initial
CP Conduit may, in its sole discretion, purchase its Purchaser
Percentage of the Class B Initial Principal Balance for a
purchase price equal to the portion the Class B Initial
Principal Balance so purchased.
(b) (i) On and subject to the
terms and conditions of this Agreement and prior to the related
Purchase Termination Date, each CP Conduit may, in its sole
discretion, purchase its Purchaser Percentage of any Additional
Class B Principal Amount offered for purchase pursuant to
Section 12.6(a) of the Indenture and subsection 2.1(c)
hereof.
(ii) Subject to the provisions of
Section 2.1(g) hereof and so long as the related Swingline
Borrowing was funded in compliance with the terms of
Section 12.6(b) of the Indenture, the Committed Purchasers
agree to make purchases of Additional Class B Principal Amounts on
or prior to the related Commitment Termination Date to refund
Swingline Borrowings and/or to purchase participations in Swingline
Borrowings in accordance with Section 12.6(b) of the
Indenture. The obligation of Committed Purchaser to so purchase
Additional Class B Principal Amounts and/or participations in
Swingline Borrowings pursuant to Section 12.6(b) of the
Indenture shall be absolute, irrevocable and unconditional, and not
be affected by any circumstance, including (i) any set-off,
counterclaim, recoupment, defense or other right which such
Committed Purchaser or the Issuer may have against the Class S
Noteholders, the Issuer, either Seller, the Servicer, the Trustee,
the Administrative Agent or any other Person for any reason
whatsoever, (ii) the occurrence or continuance of any Default
or Event of Default (including the occurrence of any Insolvency
Event with respect to the Issuer), (iii) any Borrowing Base
Deficiency or any adverse change in the Collateral or in the
condition (financial or other) of the Issuer, either Seller or the
Servicer, (iv) any breach of the Indenture or any Basic
Document by the Issuer, either Seller, the Servicer, the Trust
Collateral Agent, the Custodian, the Backup Servicer, the
Administrative Agent or the Trustee, (v) the failure of the
conditions set forth in Section 3.2 of this Agreement to have
been or to be satisfied, or (vii) any other circumstance,
happening or event whatsoever, whether or not similar to any of the
foregoing. Any purchase of a participation in a Swingline Borrowing
shall be deemed to increase the Class B Principal Balance for
purposes of this Agreement.
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(c) Each purchase of any Additional
Class B Principal Amount hereunder on the applicable Borrowing
Date shall be in accordance with the provisions of
Section 12.6(a) of the Indenture upon delivery of a Borrowing
Notice by the Issuer to the Administrative Agent received no later
than 11:00 a.m., New York City time, at least one Business Day
prior to such Borrowing Date, and the Administrative Agent shall
give notice of any such Borrowing to the related Agents by
telecopier before 2:00 p.m., New York City time, on the day it
receives notice from the Issuer. Each Borrowing Notice shall
(i) identify the relevant Borrowing Date, (ii) set forth
the Additional Class B Principal Amount which is requested
from the Class B Purchasers on such Borrowing Date and the
desired duration of the Fixed Period for such Additional Class B
Principal Amount, (iii) specify an account in the United
States to which payment for the purchase price of such Additional
Class B Principal Amount is to be made, and (iv) certify that
the applicable conditions to the purchase of such Additional Class
B Principal Amount contained in Section 3.2 hereto have been
satisfied. Each Borrowing Notice shall be irrevocable and shall
specify an Additional Class A Principal Amount, an Additional
Class B Principal Amount, and/or an Additional Class C
Principal Amount which, except in the case of borrowings the
proceeds of which are used to repay Swingline Borrowings, in the
aggregate equal at least $50,000,000 and in an integral multiple of
$1,000,000. The Issuer may not deliver more than two Borrowing
Notices hereunder or under the Class A Purchase Agreement or
the Class C Purchase Agreement in any calendar week. The
Administrative Agent shall promptly forward a copy of each
Borrowing Notice received by it to each Agent and each Class B
Purchaser.
(d) Each CP Conduit shall
notify the Agent for its Purchaser Group by 10:00 a.m., New York
City time, on the applicable Purchase Date whether it has elected
to make the purchase offered to it pursuant to
subsection 2.1(a) or 2.1(b) of this Agreement. In the event
that a CP Conduit shall not have timely provided such notice,
such CP Conduit shall be deemed to have elected not to make
such purchase. Such Agent shall notify each Committed Purchaser for
such CP Conduit on or prior to 11:00 a.m., New York City time,
on the applicable Purchase Date if such CP Conduit has not
elected to purchase its entire Purchaser Percentage of the Class B
Initial Principal Balance or the Additional Class B Principal
Amount, as the case may be, which notice shall specify (i) the
identity of such CP Conduit, (ii) the portion of the
Class B Initial Principal Balance or the Additional Class B
Principal Amount, as the case may be, which such CP Conduit
has not elected to purchase as provided above, and (iii) the
respective Liquidity Percentages of such Committed Purchasers on
such Purchase Date (as determined by such Agent in good faith; for
purposes of such determination, such Agent shall be entitled to
rely conclusively on the most recent information provided by such
CP Conduit or its agent or by the agent for its Support
Parties). Subject to receiving such notice and to the satisfaction
of the applicable conditions set forth in Article 3 hereof,
each of such CP Conduit’s Committed Purchasers shall
make a purchase of Class B Notes on the applicable Purchase
Date in an amount equal to its Liquidity Percentage of the portion
of the Class B Initial Principal Balance or the Additional Class B
Principal Amount, as the case may be, which such CP Conduit
has not elected to purchase, for a purchase price equal to its
share of the Class B Initial Principal Balance or the Additional
Class B Principal Amount, as applicable, so purchased.
(e) Each Class B
Purchaser’s purchase price payable pursuant to
subsection 2.1(a), 2.1(b) or 2.1(d) of this Agreement shall be
made available to the Agent for its Purchaser Group, subject to the
fulfillment of the applicable conditions set forth in
Article 3 hereof, at or prior to 2:00 p.m., New York City
time, on the applicable Purchase Date, by deposit
- 14 -
of immediately available funds to an account of
such Agent specified in subsection 9.2(b) of this Agreement.
Such Agent shall promptly notify the Servicer in the event that any
Class B Purchaser either fails to make such funds available to
such Agent before such time or notifies such Agent that it will not
make such funds available to such Agent before such time. Subject
to (i) such Agent’s receipt of such funds and
(ii) the fulfillment of the applicable conditions set forth in
Article 3 hereof, as determined by such Agent, such Agent will
not later than 4:00 p.m., New York City time, on such Purchase
Date make such funds available, in the same type of funds received,
by wire transfer thereof to the account in the United States
specified by the Issuer in the applicable Borrowing Notice or, in
the case of the purchase on the Closing Date, specified in writing
by the Issuer to such Agent not later than the Business Day prior
to the Closing Date.
(f) In the event that
notwithstanding the fulfillment of the applicable conditions set
forth in Article 3 hereof with respect to a purchase, a
CP Conduit elected to make a purchase on a Purchase Date but
failed to make its purchase price available to the Agent for its
Purchaser Group when required by subsection 2.1(e) of this
Agreement, such CP Conduit shall be deemed to have rescinded
its election to make such purchase, and neither the Issuer nor any
other party shall have any claim against such CP Conduit by
reason of its failure to timely make such purchase. In any such
case, such Agent shall give notice of such failure not later than
2:30 p.m., New York City time, on the Purchase Date to each
Committed Purchaser for such CP Conduit and to the Issuer and
the Servicer, which notice shall specify (i) the identity of
such CP Conduit, (ii) the amount of the purchase which it
had elected but failed to make and (iii) the respective
Liquidity Percentages of such Committed Purchasers on such Purchase
Date (as determined by such Agent in good faith; for purposes of
such determination, such Agent shall be entitled to rely
conclusively on the most recent information provided by such
CP Conduit or its agent or by the agent for its Support
Parties). Subject to receiving such notice, each of such
CP Conduit’s Committed Purchasers shall purchase a
portion of the Class B Principal Balance in an amount equal to
its Liquidity Percentage of the amount described in clause
(ii) above at or before 4:00 p.m., New York
City time, on such Purchase Date and otherwise in accordance
with subsection 2.1(d) of this Agreement. Subject to such
Agent’s receipt of such funds, such Agent will not later than
5:00 p.m., New York City time, on such Purchase Date make such
funds available, in the same type of funds received, by wire
transfer thereof to the account of the Issuer described in
subsection 2.1(e) of this Agreement, which payment shall be
deemed to be timely for purposes of the Indenture.
(g) In no event shall a Committed
Purchaser be required on any date to purchase an Additional Class B
Principal Amount or a participation in Swingline Borrowings which
would result in its Percentage Interest of the Class B
Principal Balance, determined after giving effect to such purchase,
exceeding its Commitment. In no event may any Additional Class B
Principal Amount be offered for purchase hereunder or under
Section 12.6(a) of the Indenture, nor shall any Class B
Purchaser be obligated to purchase any Additional Class B Principal
Amount, to the extent that, after giving effect to such Additional
Class B Principal Amount, the Class B Principal Balance would
exceed the Class B Facility Limit.
2.2 Reductions and Extensions of
Commitments .
(a) At any time the Issuer may, upon
at least two Business Days’ prior written notice to the
Administrative Agent, reduce the Total Commitment. Each partial
reduction shall
- 15 -
be in an aggregate amount of $25,000,000 or
integral multiples of $5,000,000 in excess thereof (or such other
amount requested by the Issuer to which the Administrative Agent
consents). Reductions of the aggregate Commitments pursuant to this
subsection 2.2(a) of this Agreement shall be allocated
(x) to the Maximum Purchase Amount of each CP Conduit,
pro rata based on the Purchaser Percentage
represented by such Maximum Purchase Amount, and (y) to the
aggregate Commitments of Committed Purchasers for each
CP Conduit pro rata based on their respective
Liquidity Percentages, provided that if the Commercial Paper
Notes of any CP Conduit are not rated at least A-1 or the
equivalent by any two of S&P, Moody’s and Fitch Rating
Services, the Issuer may allocate a non- pro rata
portion of any such reduction to the Maximum Purchase Amount of
such CP Conduit and may allocate a non- pro rata
portion of any such reduction to the Commitment of any Committed
Purchaser for such CP Conduit which is a Downgraded Purchaser (it
being understood that the Issuer will allocate any reduction of the
Maximum Purchase Amounts of any CP Conduit pro rata
according to its Maximum Purchase Amounts, if any, under each of
the Class A Note Purchase Agreement, the Class B Note Purchase
Agreement and the Class C Note Purchase Agreement).
(b) On the Purchase Termination Date
for a Committed Purchaser, the Commitment of such Class B
Purchaser shall be automatically reduced to zero.
(c) So long as no Termination Event
has occurred and is continuing, the Issuer may request, through the
Administrative Agent, that each Class B Purchaser consent to
an extension of the Commitment Termination Date for such period as
the Issuer may specify (the “ Extension Length
”), which decision will be made by each Class B
Purchaser in its sole discretion, provided that on the date
of the effectiveness of any such extension, and after giving effect
to such extension, the Commitment Termination Date will not be more
than three years from such date. Upon receipt of any such request,
the Administrative Agent shall promptly notify each Agent thereof,
which shall notify each Class B Purchaser in its Purchaser
Group thereof. Not more than 60 days following the date of a
request for an extension (such 60-day period, the “
Election Period ”), each Class B Purchaser shall
notify the Agent for its Purchaser Group of its willingness or
refusal to so consent to an extension of the Commitment Termination
Date, and such Agent shall notify the Issuer and the Administrative
Agent of such willingness or refusal by each Class B Purchaser
not later than the Business Day following the last day of the
Election Period. Any Class B Purchaser which notifies the
applicable Agent of its refusal to consent to the extension or
which does not expressly notify such Agent that it is willing to
consent to an extension of the Commitment Termination Date during
the applicable Election Period shall be deemed to be a
(x) Nonextending Class B Purchaser after the Commitment
Termination Date then in effect (such occurrence, unless such
Nonextending Class B Purchaser is replaced pursuant to
subsection 2.2(d) of this Agreement or unless the Purchase
Termination Date shall have occurred, a “ Partial
Expiration Event ”) and (y) “ Dissenting
Purchaser ” from the date of its refusal notice or the
end of the applicable Election Period. If a Class B Purchaser
has agreed to extend its Commitment Termination Date, and, at the
end of the applicable Election Period no Termination Event shall
have occurred, the Commitment Termination Date for such Class B
Purchaser then in effect shall be extended to the date which is the
Extension Length after its then current Commitment Expiration
Date.
(d) Within two Business Days
following the end of an Election Period, the Agent for each
Purchaser Group shall notify each other Class B Purchaser in
such Purchaser
- 16 -
Group, the Administrative Agent, the Issuer and
the Servicer of the identity of any Dissenting Purchaser and the
amount of its Commitment, if any. Any of such Agent, the Issuer or,
if the Dissenting Purchaser is a Committed Purchaser, the affected
CP Conduit, may (but shall not be required to) request one or
more other Class B Purchasers in such Purchaser Group, with
the consent of the Agent (which shall not be unreasonably withheld)
and, if the Dissenting Purchaser is a Committed Purchaser, the
affected CP Conduit in its sole discretion, or seek another
financial institution reasonably acceptable to such Agent and, if
the Dissenting Purchaser is a Committed Purchaser acceptable to the
affected CP Conduit in its sole discretion, to acquire all or
a portion of the Commitment of the Dissenting Purchaser and all
amounts payable to it hereunder and under the Sale and Servicing
Agreement and the Indenture in accordance with Section 8.1 of
this Agreement. Each Dissenting Purchaser hereby agrees to assign
all or a portion of its Commitment and the amounts payable to it
hereunder and under the Sale and Servicing Agreement and the
Indenture to a replacement investor identified by the Agent for its
Purchaser Group in accordance with the preceding sentence, subject
to ratable payment of such Dissenting Purchaser’s Percentage
Interest of the Class B Principal Balance, together with all
accrued and unpaid interest thereon, and a ratable portion of all
fees and other amounts due to it hereunder.
(e) If a Partial Expiration Event
shall have occurred, the Issuer shall give a notice pursuant to
Section 10.4 of the Indenture to cause a Limited Amortization
Period to commence with the first Collection Period after the
applicable Commitment Termination Date, and shall specify with
respect to such Limited Amortization Period a Class B Limited
Amortization Amount at least equal to the related Class B
Mandatory Partial Amortization Amount.
2.3 Interest, Fees, Expenses,
Payments, Etc .
(a) Interest shall accrue on the
Class B Principal Balance during each Interest Period at the
following rates:
(i) Each CP Conduit’s
Percentage Interest of the Class B Principal Balance shall
bear interest on each day during each Interest Period at a rate per
annum equal to such CP Conduit’s Commercial Paper Rate
for such day, except as otherwise provided in clause
(ii) below.
(ii) If and to the extent that, and
only for so long as, a CP Conduit at any time determines in
good faith that it is unable to raise or is precluded or prohibited
from raising, or that it is not advisable to raise, funds through
the issuance of Commercial Paper Notes in the commercial paper
market of the United States to finance its purchase or maintenance
of its Percentage Interest of the Class B Principal Balance or
any portion thereof (which determination may be based on any
allocation method employed in good faith by such CP Conduit),
including by reason of market conditions or by reason of
insufficient availability under any of its Support Facilities or
the downgrading of any of its Support Parties, upon notice from
such CP Conduit to the Agent for its Purchaser Group and the
Administrative Agent, such portion of such CP Conduit’s
Percentage Interest of the Class B Principal Balance shall
bear interest at a rate per annum equal to the Alternative Rate,
rather than as otherwise determined pursuant to clause
(i) above.
- 17 -
(iii) Each Committed
Purchaser’s (other than a Committed Purchaser which is a CP
Conduit) Percentage Interest of the Class B Principal Balance
shall bear interest for each Interest Period at a rate per annum
equal to the Alternative Rate.
(b) The Issuer shall select the
duration of the initial and each subsequent Fixed Period relating
to each Borrowing subject to the limitations set forth in the
definition of Fixed Period. The Issuer shall give the
Administrative Agent and each Agent written notice of such
selections (i) with respect to each initial Fixed Period, in
the related Borrowing Notice and (ii) with respect to each
subsequent Fixed Period, in a notice in the form of Exhibit E
hereto, delivered prior to 11:00 a.m., New York City time, on the
day before the first day of such Fixed Period, provided that
if the Issuer shall fail to deliver any such notice, it shall be
deemed to have selected a Fixed Period of one day. Unless consented
to by each Agent, the aggregate number of Fixed Periods for all
Borrowings outstanding at any one time hereunder shall not exceed
10. (A CP Conduit may issue Commercial Paper Notes with such
maturities as it determines in its sole discretion regardless of
the Fixed Period selected by the Issuer.)
(c) The Class B Purchasers
shall be entitled to be paid, as a part of Class B Monthly
Interest and Fees payable on each Distribution Date, (i) a fee
(the “ Class B Usage Fee ”) in the
aggregate amount equal to the Class B Average Principal
Balance for the immediately preceding Interest Period times a rate
per annum equal to the Class B Usage Fee Rate, plus
(ii) a fee (the “ Class B Commitment Fee
”) in the aggregate amount equal to (A) the Total
Commitment times (B) a rate per annum equal to the
Class B Commitment Fee Rate. In addition, the Issuer agrees to
pay to the Administrative Agent, for the account of itself or the
Agents and Class B Purchasers, as the case may be, the amounts
set forth in Section 1 of the Supplemental Fee Letter entered
into on the Closing Date between the Issuer and the Administrative
Agent at the times specified therein.
(d) The principal of and
Class B Monthly Interest and Fees in respect of the
Class B Notes shall be paid as provided in the Sale and
Servicing Agreement and the Indenture. In the case of Class B
Notes held by an Agent as agent for members of its Purchaser Group,
such Agent shall allocate to the Class B Owners in its
Purchaser Group each payment in respect of the Class B Notes
received by such Agent in its capacity as Class B Noteholder
as provided herein. Payments in reduction of the portion of the
Class B Principal Balance evidenced by a Class B Note
shall be allocated and applied to Class B Owners of such
Class B Note pro rata based on their respective Percentage
Interests of the Class B Principal Balance, or in any such
case in such other proportions as each affected Class B
Purchaser may agree upon in writing from time to time with such
Agent and the Issuer; provided that from and after the
occurrence of a Partial Expiration Event until the earlier to occur
of (i) the Purchase Termination Date and (ii) the date on
which (A) the aggregate amount of payments in reduction of the
Class B Principal Balance made after the date of the
occurrence of the related Partial Expiration Event equals
(B) the related Class B Mandatory Partial Amortization
Amount, payments in reduction of the portion of the Class B
Principal Balance shall be allocated and applied to Nonextending
Class B Purchasers and related CP Conduits pro rata based on
their respective shares of the Class B Principal Balance which
were used to determine such Class B Mandatory Partial
Amortization Amount. Payments of interest in respect of the portion
of the Class B Principal Balance evidenced by a Class B
Note shall be allocated and applied to Class B Owners of such
Class B Note pro rata based upon the respective amounts of
interest due and payable to them, determined as provided
- 18 -
above in subsection 2.3(a). Payments of the
Class B Usage Fee shall be allocated and paid to Class B
Owners pro rata based upon their respective interest in the
Class B Principal Balance for the applicable Interest Period.
Payments of the Class B Commitment Fee shall be allocated and
paid to the Agent for each Purchaser Group pro rata based on the
aggregate Commitments of the Class B Purchasers in such
Purchaser Group. Each Class B Purchaser in a Purchaser Group
shall be entitled to receive the share of the Class B
Commitment Fee allocated to such Purchaser Group as may be agreed
upon from time to time between such Class B Purchaser and the
Agent for such Purchaser Group.
(e) Any principal, interest
(including interest payable pursuant to this clause (e)), fees
or other amounts due and payable hereunder (without regard to any
limitations set forth herein on the sources from which such amount
may be paid) which are not paid to the Administrative Agent or the
Agents, as the case may be, prior to the times set forth in
Section 2.3(g) on the due date thereof (whether due pursuant
to acceleration or otherwise) shall accrue interest (after as well
as before judgment) at the Prime Rate from time to time in effect
plus 2.0% per annum from and including the due date thereof to
but excluding the date such amount is actually paid. Accrued and
unpaid interest in respect of overdue Class B Monthly Interest
and Fees, shall be payable as a part of Class B Monthly
Interest and Fees on each Distribution Date. Any overdue principal,
any accrued and unpaid interest payable pursuant to this
subsection 2.3(e) in respect of overdue fees or other amounts
not described in the preceding sentence shall be payable on demand
and in any event on each Distribution Date by the party obligated
to pay such overdue amount.
(f) Unless otherwise specified in an
applicable Supplemental Fee Letter, interest calculated by
reference to the Commercial Paper Rate or the Adjusted Eurodollar
Rate shall be calculated on the basis of a 360-day year for the
actual days elapsed. Interest calculated by reference to the Prime
Rate shall be calculated on the basis of a 365- or 366-day year, as
applicable, for the actual days elapsed. Class B Usage Fees,
Class B Commitment Fees and other periodic fees or amounts
payable hereunder shall be calculated, unless otherwise specified
in the Supplemental Fee Letter, on the basis of a 360-day year and
for the actual days elapsed.
(g) All payments to be made
hereunder or under the Sale and Servicing Agreement or the
Indenture, whether on account of principal, interest, fees or
otherwise, shall be made without setoff or counterclaim in United
States dollars and in immediately available funds and shall be made
(x) in the case of payments due on an Interim Distribution
Date, prior to 2:30 p.m., New York City time, on the due date
thereof to each Agent at its account specified on the signature
pages hereof or as otherwise directed pursuant to
subsection 9.2(b) hereof, and (y) in the case of all
other payments, including payments due on Distribution Dates, prior
to 12:00 noon, New York City time, on the due date thereof to the
Administrative Agent at its account specified in
subsection 9.2(b) hereof. Payments received by an Agent or the
Administrative Agent after 2:30 p.m., New York City time, shall be
deemed to have been made on the next Business Day. The
Administrative Agent will distribute such payments received by it
to the Agents promptly upon receipt, but no later than 2:00 p.m.,
New York City time, on the day received if such payment is received
prior to 12:00 noon, New York City time, and no later than noon,
New York City time, on the Business Day after such payment is
received if received after 12:00 noon, New York City time.
Notwithstanding anything herein to the contrary, if any payment due
hereunder becomes due and payable on a day other than a Business
Day, the
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payment date thereof shall be extended to the
next succeeding Business Day and interest shall accrue thereon at
the applicable rate during such extension. To the extent that
(i) the Trustee, the Issuer or the Servicer makes a payment to
the Administrative Agent or an Agent or Class B Purchaser or
(ii) the Administrative Agent or an Agent or Class B
Purchaser receives or is deemed to have received any payment or
proceeds for application to an obligation, which payment or
proceeds or any part thereof are subsequently invalidated, declared
to be fraudulent or preferential, set aside or required to be
repaid to a trustee, receiver or any other party under any
bankruptcy or insolvency law, state or Federal law, common law, or
for equitable cause, then, to the extent such payment or proceeds
are set aside, the obligation or part thereof intended to be
satisfied shall be revived and continue in full force and effect,
as if such payment or proceeds had not been received or deemed
received by the Administrative Agent or such Agent or Class B
Purchaser, as the case may be.
(h) If its Percentage Interest of
the Class B Principal Balance then exceeds zero, each
CP Conduit shall notify the Agent for its Purchaser Group at
or before 4:00 p.m. on the date on which the Alternative Rate
becomes applicable to its Percentage Interest of the Class B
Principal Balance or a portion thereof pursuant to
subsection 2.3(a)(ii) of this Agreement, of the applicability
thereof. Each CP Conduit shall notify such Agent at or before
4:00 p.m., New York City time, on each Interest Rate Determination
Date of (x) the estimate of the interest payable to such
CP Conduit for the Interest Period ending on the succeeding
Distribution Date (such notification may be based on such
CP Conduit’s good faith estimate of the Commercial Paper
Rate if the actual rate is not then known to such CP Conduit)
and (y) the amount of any variation between interest payable
to such CP Conduit for the preceding Interest Period based on
such notices and estimates and interest which should have been
payable to such CP Conduit for such Interest Period based on
its final determination of the Commercial Paper Rate for such
Interest Period. The amount of any shortfall in interest based on
such variation shall be included in the portion of Class B
Monthly Interest and Fees payable to such CP Conduit on the
following Distribution Date, and the amount of any overpayment of
interest to such CP Conduit based on such variation shall be
credited, dollar for dollar, against the portion of Class B
Monthly Interest and Fees otherwise payable to such CP Conduit
for the following Interest Period. Each determination by a
CP Conduit of its applicable Commercial Paper Rate pursuant to
this Agreement shall be conclusive and binding on the Class B
Purchasers, each Agent, the Administrative Agent, the Issuer, the
Servicer and the Trustee in the absence of manifest
error.
(i) If the Percentage Interest of
the Class B Principal Balance of a CP Conduit then
exceeds zero, the Agent for its Purchaser Group shall notify the
Issuer and the Servicer before 4:00 p.m. on the date on which the
Alternative Rate becomes applicable to the Percentage Interest of
the Class B Principal Balance of such Class B Purchaser
in such Purchaser Group (or a portion thereof) pursuant to
subsection 2.3(a)(ii) of this Agreement, of the occurrence
thereof. On each date on which the Alternative Rate is applicable
to any portion of the Class B Principal Balance and the Adjusted
Eurodollar Rate or the Prime Rate changes, the Administrative Agent
shall notify the Issuer and the Servicer of the Alternative Rate
and the Prime Rate, if then applicable to any portion of the
Class B Principal Balance. For such purposes, the Agents may
rely conclusively on notices from CP Conduits as to the
interest rate or rates from time to time applicable to their
respective Percentage Interest of the Class B Principal
Balance. Each Agent shall notify the Administrative Agent on or
before each Interest Rate Determination Date of (x)
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the interest payable to the Class B Purchasers
in its Purchaser Group for the Interest Period ending on the
succeeding Distribution Date (such notification from an Agent may
be based on each CP Conduit’s notices and estimates of
the Commercial Paper Rate as provided to such Agent pursuant to
subsection 2.3(h) hereof) and (y) the amount of any
variation between the amount of interest payable on the Percentage
Interest of the Class B Principal Balance of Class B
Purchasers in its Purchaser Group based on notices and estimates
delivered pursuant to this subsection 2.3(i) and the actual
amount thereof for the preceding Interest Period. The amount of any
shortfall in interest based on such variation shall be a positive
“ Estimated Interest Adjustment ” for such
Interest Period, and the amount of any overpayment of interest
based on such variation shall be a negative “ Estimated
Interest Adjustment ” for such Interest Period. Any
positive Estimated Interest Adjustment for an Interest Period shall
be deemed not due on the Distribution Date for such Interest
Period, but shall be due on the Distribution Date related to the
next succeeding Interest Period and in any event on the final
Distribution Date for Class B Notes. An Estimated Interest
Adjustment shall not bear interest, unless not paid when due as
provided in the preceding sentence. Each determination of the
Commercial Paper Rate, the Alternative Rate and the Prime Rate by
the Administrative Agent or an Agent pursuant to any provision of
this Agreement shall be conclusive and binding on the Class B
Purchasers, the Issuer, the Administrative Agent, the Servicer and
the Trustee in the absence of manifest error.
(j) On the Business Day prior to
each Interim Distribution Date, each Class B Purchaser shall notify
the Agent for its Purchaser Group, and each Agent shall notify the
Administrative Agent, of the amount of interest accrued and unpaid
on the portion of the Class B Principal Balance held by such Class
B Purchaser or Purchaser Group, as the case may be, which is
scheduled to be repaid on such Interim Distribution
Date.
(k) Notwithstanding anything
contained herein or in the Supplemental Fee Letter, from and after
the occurrence of a Termination Event, whether or not declared, the
Class B Principal Balance shall accrue interest (after as well
as before judgment) at the Prime Rate from time to time in effect
plus 2.0%.
2.4 Requirements of Law
.
(a) In the event that any
Class B Purchaser shall have reasonably determined that any
Regulatory Change shall impose, modify or hold applicable any
reserve, special deposit, compulsory loan or similar requirement
against assets held by, deposits or other liabilities in or for the
account of, advances, loans or other extensions of credit by, or
any other acquisition of funds by, such Class B Purchaser and
the result of any of the foregoing is to increase the cost to such
Class B Purchaser, by an amount which such Class B
Purchaser deems to be material, of maintaining its Commitment or
its interest in the Class B Notes or to reduce any amount
receivable in respect thereof, then, in any such case, after
submission by such Class B Purchaser to the Agent for its
Purchaser Group of a written request therefor and the submission by
such Agent to the Issuer and the Servicer of such written request
therefor, such Class B Purchaser (through the Agent for its
Purchaser Group) shall be entitled to be paid, but only to the
extent funds are then or thereafter become available therefor
pursuant to subsection 5.5(a) or subsection 5.5(b) of the Sale and
Servicing Agreement, any additional amounts necessary to compensate
such Class B Purchaser for such increased cost or reduced
amount receivable, to the extent not already reflected in the
applicable interest rate, no later than the Distribution Date
following
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receipt by the Issuer and the Servicer of such
request for compensation under this subsection 2.4(a), if such
request is received by the Issuer and the Servicer no later than
five Business Days prior to the Determination Date related to such
Distribution Date, and otherwise on the following Distribution Date
(or, if earlier, on the Termination Date).
(b) In the event that any
Class B Purchaser shall have reasonably determined that any
Regulatory Change regarding capital adequacy has the effect of
reducing the rate of return on such Class B Purchaser’s
capital or on the capital of any Person controlling such
Class B Purchaser as a consequence of its obligations
hereunder or its maintenance of its Commitment or its interest in
the Class B Notes to a level below that which such
Class B Purchaser or such Person could have achieved but for
such Regulatory Change (taking into consideration such Class B
Purchaser’s or such Person’s policies with respect to
capital adequacy) by an amount deemed by such Class B
Purchaser or such Person to be material, then , from time to
time, after submission by such Class B Purchaser to the Agent
for its Purchaser Group of a written request therefor and
submission by such Agent to the Issuer and the Servicer of such
written request therefor, such Class B Purchaser (through the
Agent for its Purchaser Group) shall be entitled to be paid, but
only to the extent funds are then or thereafter become available
therefor pursuant subsection 5.5(a) or subsection 5.5(b) of the
Sale and Servicing Agreement, such additional amount or amounts as
will compensate such Class B Purchaser or such Person, as
applicable, for such reduction, no later than the Distribution Date
following receipt by the Issuer and the Servicer of such request
for compensation under this subsection 2.4(b) of this
Agreement, if such request is received by the Issuer and the
Servicer no later than five Business Days prior to the
Determination Date related to such Distribution Date, and otherwise
on the following Distribution Date (or, if earlier, on the
Termination Date). Nothing in this subsection 2.4(b) shall be
deemed to require the Issuer to pay any amount to a Class B
Purchaser to the extent such Class B Purchaser has been
compensated therefor under another provision of this Agreement or
to the extent such amount is already reflected in the applicable
interest rate.
(c) Each Class B Purchaser
agrees that it shall use its reasonable efforts to reduce or
eliminate any claim for compensation pursuant to subsections 2.4(a)
and 2.4(b) of this Agreement, including but not limited to
designating a different Investing Office for its Class B Notes
(or any interest therein) if such designation will avoid the need
for, or reduce the amount of, any increased amounts referred to in
subsection 2.4(a) or 2.4(b) hereof and will not, in the
reasonable opinion of such Class B Purchaser, be unlawful or
otherwise disadvantageous to such Class B Purchaser or
inconsistent with its policies or result in any unreimbursed cost
or expense to such Class B Purchaser or in an increase in the
aggregate amount payable under subsections 2.4(a) and 2.4(b)
hereof. . If such claim is not eliminated by any such designation
or no such designation is done and the Class B Purchaser does
not waive payment of such amount, the Issuer shall have the right
to procure a replacement purchaser which is not so affected and
which is reasonably acceptable to the Agent for the related
Purchaser Group and the Administrative Agent (a “
Replacement Purchaser ”) to replace such Class B
Purchaser. No replacement of a Class B Purchaser shall be
effected pursuant to this subsection 2.4(c) if, after giving
effect thereto, any amounts shall be owing to the replaced
Class B Purchaser hereunder. Each affected Class B
Purchaser hereby agrees to take, at the Issuer’s expense, all
actions necessary to permit a Replacement Purchaser to succeed to
its rights and obligations hereunder.
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Notwithstanding the foregoing,
(i) if the Class B Purchaser being replaced pursuant to
this subsection is a Committed Purchaser, the Replacement Purchaser
shall be acceptable to such the related CP Conduit and
(ii) if the Class B Purchaser being replaced pursuant to
this subsection is a CP Conduit, the Replacement Purchaser
shall be acceptable to all related Committed Purchasers; and it
shall be a condition of such replacement Committed Purchaser that
such Replacement Purchaser enter into substitute Support Facilities
for those to which the Class B Purchaser being replaced is a
party on terms mutually acceptable to the parties thereto. In the
event that a proposed Replacement Purchaser designated by the
Issuer and approved by the applicable Agent and the Administrative
Agent as provided in this subsection is not acceptable to the
applicable CP Conduit or the applicable Committed Purchasers,
as applicable, or has not within a reasonable period entered into
applicable Support Facilities, and another replacement Class B
Purchaser has not been promptly procured as provided in this
subsection with the consent of all affected parties, then any
Class B Purchaser which failed to consent to such replacement
or to enter into such Support Facilities may be replaced by a
Replacement Purchaser as provided in this subsection.
(d) Each Class B Purchaser
claiming increased amounts described in subsection 2.4(a) or
2.4(b) of this Agreement will furnish to the Agent for its
Purchaser Group (together with its request for compensation) a
certificate prepared in good faith setting forth the basis and the
calculation of the amount (in reasonable detail) of each request by
such Class B Purchaser for any such increased amounts referred
to in subsection 2.4(a) or 2.4(b) hereof. Any such certificate
shall be conclusive absent manifest error, and such Agent shall
deliver a copy thereof to the Issuer and the Servicer. Failure on
the part of any Class B Purchaser to demand compensation for
any amount pursuant to subsection 2.4(a) or 2.4(b) hereof with
respect to any period shall not constitute a waiver of such
Class B Purchaser’s right to demand compensation with
respect to such period; provided , however ,
notwithstanding the foregoing provisions of this Section 2.4,
a Class B Purchaser shall not be compensated for any such
amount relating to any period ending, and of which such
Class B Purchaser has had knowledge, more than six months
prior to the date that such Class B Purchaser notifies the
Issuer and the Servicer in writing thereof or for any amounts
resulting from a change by any Class B Purchaser of its
Investing Office (other than changes required by law or changes
made pursuant to subsection 2.4(c)).
2.5 Taxes .
(a) All payments made to the
Class B Purchasers, the Agents or the Administrative Agent
under this Agreement and the Sale and Servicing Agreement and the
Indenture (including all amounts payable with respect to the
Class B Notes) shall, to the extent allowed by law, be made
free and clear of, and without deduction or withholding for or on
account of, any present or future income, stamp or other taxes,
levies, imposts, duties, charges, fees, deductions or withholdings,
now or hereafter imposed, levied, collected, withheld or assessed
by any Governmental Authority (collectively, “ Taxes
”), excluding (i) income taxes (including branch profit
taxes, minimum taxes and taxes computed under alternative methods,
at least one of which is based on or measured by net income),
franchise taxes (imposed in lieu of income taxes), or any other
taxes based on or measured by the net income of such Class B
Purchaser, Participant, Agent or the Administrative Agent (as the
case may be) or the gross receipts or income of such Class B
Purchaser, Participant, Agent or the Administrative Agent, as the
case may be; (ii) any Taxes that would not have been imposed
but for the failure of such
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Class B Purchaser, Participant, Agent or
the Administrative Agent, as applicable, to provide and keep
current (to the extent legally able) any certification or other
documentation required to qualify for an exemption from, or reduced
rate of, any such Taxes or required by this Agreement to be
furnished by such Class B Purchaser, Participant, Agent or the
Administrative Agent, as applicable; and (iii) any Taxes
imposed as a result of a change by any Class B Purchaser or
Participant of its Investing Office (other than changes mandated by
this Agreement, including subsection 2.4(c) hereof, or
required by law) (all such excluded taxes being hereinafter called
“ Excluded Taxes ”).
If, as a result of any change in
law, treaty or regulation or in the interpretation or
administration thereof by any governmental or regulatory agency or
body charged with the administration or interpretation thereof, or
the adoption of any law, treaty or regulation, any Taxes, other
than Excluded Taxes, are required to be withheld from any amounts
payable to a Class B Purchaser or Agent or the Administrative
Agent hereunder or under the Sale and Servicing Agreement or the
Indenture, then after submission by any Class B
Purchaser to the Agent for its Purchaser Group (in the case of an
amount payable to a Class B Purchaser) and by any Agent or the
Administrative Agent to the Issuer and the Servicer of a written
request therefor, the amounts so payable to such Class B
Purchaser or Agent or the Administrative Agent, as applicable,
shall be increased, and such Class B Purchaser (through the
applicable Agent) or Agent or the Administrative Agent, as
applicable, shall be entitled to be paid (in the case of payments
from a Seller or the Issuer, only to the extent funds are then or
thereafter available therefor pursuant to clause (xx) of
subsection 5.5(a) or (xix) of subsection 5.5(b) of the Sale
and Servicing Agreement), the amount of such increase to the extent
necessary to yield to such Class B Purchaser or Agent or the
Administrative Agent, as applicable (after payment of all such
Taxes) interest or any such other amounts payable hereunder or
thereunder at the rates or in the amounts specified in this
Agreement or in the Sale and Servicing Agreement and the Indenture,
as applicable, no later than the Distribution Date following
receipt by the Issuer and the Servicer of a request for such
additional amounts under this subsection 2.5(a), if such
request is received by the Issuer and the Servicer no later than
five Business Days prior to the Determination Date related to such
Distribution Date, and otherwise on the following Distribution Date
(or, if earlier, on the Termination Date); provided ,
however , that the amounts so payable to such Class B
Purchaser or Agent or the Administrative Agent shall not be
increased pursuant to this subsection 2.5(a) if such
requirement to withhold results from the failure of such Person to
comply with subsection 2.5(c) hereof. Whenever any Taxes are
payable on or with respect to amounts distributed to a Class B
Purchaser or Agent or the Administrative Agent, as promptly as
possible thereafter the Issuer and the Servicer shall send to the
Agent, on behalf of such Class B Purchaser, or to such Agent
or the Administrative Agent, as applicable, a certified copy of an
original official receipt showing payment thereof. Notwithstanding
any other provisions of this Section 2.5, the Servicer shall
not have any liability under this Section 2.5 for the payment
of Taxes except for Taxes (other than Excluded Taxes) assessed on
indemnification payments made or required to be made by the
Servicer for its own account under Section 2.6 of this
Agreement. If the Issuer, the Sellers or the Servicer, as
applicable, fails to pay any Taxes when due to the appropriate
taxing authority or fails to remit to the Agent, on behalf of
itself or such Class B Purchaser, or to such Agent or the
Administrative Agent, as applicable, the required receipts or other
required documentary evidence, such Class B Purchaser (through
the applicable Agent) or Agent or the Administrative Agent, as
applicable, shall be entitled to be paid, in the case of a failure
by the Issuer or AFC, only to the extent funds are then or
thereafter
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available therefor pursuant to clause
(xx) of subsection 5.5(a) or (xix) of subsection 5.5(b)
of the Sale and Servicing Agreement) or in the case of a failure by
the Servicer, by such entity, as the case may be, any incremental
taxes, interest or penalties that may become payable by such
Class B Purchaser or Agent or the Administrative Agent, as
applicable, as a result of any such failure no later than the
Distribution Date following receipt by the Issuer and the Servicer
of such request for payment under this subsection 2.5(a), if
such request is received by the Issuer and the Servicer no later
than five Business Days prior to the Determination Date related to
such Distribution Date, and otherwise on the following Distribution
Date (or, if earlier, on the Termination Date).
(b) A Class B Purchaser
claiming increased amounts under subsection 2.5(a) hereof for
Taxes paid or payable by such Class B Purchaser will furnish
to the applicable Agent a certificate prepared in good faith
setting forth the basis and amount of each request by such
Class B Purchaser for such Taxes, and such Agent shall deliver
a copy thereof to the Issuer and the Servicer. An Agent or the
Administrative Agent claiming increased amounts under
subsection 2.5(a) hereof for its own account for Taxes paid or
payable by such Agent or the Administrative Agent, as applicable,
will furnish to the Issuer and the Servicer a certificate prepared
in good faith setting forth the basis and amount of each request by
the Agent or the Administrative Agent for such Taxes. Any such
certificate of a Class B Purchaser or Agent or the
Administrative Agent shall be conclusive absent manifest error.
Failure on the part of any Class B Purchaser or Agent or the
Administrative Agent to demand additional amounts pursuant to
subsection 2.5(a) of this Agreement with respect to any period
shall not constitute a waiver of the right of such Class B
Purchaser or Agent or the Administrative Agent, as the case may be,
to demand compensation with respect to such period. All such
amounts shall be due and payable to such Class B Purchaser
(through the applicable Agent) or Agent or the Administrative
Agent, as the case may be, on the Distribution Date following
receipt by the Issuer and the Servicer of such certificate, if such
certificate is received by the Issuer and the Servicer at least
five Business Days prior to the Determination Date related to such
Distribution Date and otherwise shall be due and payable on the
following Distribution Date (or, if earlier, on the Termination
Date).
(c) Each Class B Purchaser and
each Participant holding an interest in Class B Notes agrees
that prior to the date on which the first interest or fee payment
hereunder is due thereto, it will deliver to the Issuer, the
Servicer, the Trustee, the applicable Agent and the Administrative
Agent (i) if such Class B Purchaser or Participant is not
incorporated under the laws of the United States or any State
thereof, two duly completed copies of the U.S. Internal Revenue
Service Form W-8ECI or Form W-8BEN claiming treaty benefits, or in
either case successor applicable forms required to evidence that
the Class B Purchaser or Participant is entitled to receive
payments under this Agreement and with respect to the Class B
Notes without deduction or withholding of any United States federal
income taxes, (ii) in the case of any other Class B
Purchaser or Participant, a duly completed U.S. Internal Revenue
Service Form W-9 or successor applicable or required forms, and
(iii) such other forms and information as may be required to
confirm the availability of any applicable exemption from United
States federal, state or local withholding taxes. Each Class B
Purchaser or Participant holding an interest in Class B Notes
also agrees to deliver to the Issuer, the Servicer, the Trustee,
the applicable Agent and the Administrative Agent two further
copies of such Form W-8ECI, Form W-8BEN claiming treaty benefits or
Form W-9, or such successor applicable forms or other manner of
certification, as the case may be, on or before the date that any
such form expires or becomes obsolete or after the
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occurrence of any event requiring a change in
the most recent form previously delivered by it hereunder, and such
extensions or renewals thereof as may reasonably be requested by an
Agent or the Administrative Agent, unless in any such case, solely
as a result of a change in treaty, law or regulation occurring
prior to the date on which any such delivery would otherwise be
required, the Class B Purchaser is no longer eligible to
deliver then-applicable form set forth above and so advises the
Issuer, the applicable Agent and the Administrative Agent. Each
Class B Purchaser certifies, represents and warrants as of the
Closing Date, each Assignee and each Participant (in either case
other than a Support Party) shall certify, represent and warrant as
a condition of acquiring its Assignment or Participation as of the
effective date of the Transfer Supplement to which it is a party or
of such Participation, as the case may be, and each Support Party
shall certify, represent and warrant as of the effective date of
its becoming a Support Party, that (x) it is entitled to
receive payments under this Agreement and with respect to the
Class B Notes without deduction or withholding of any United
States federal income taxes and (y) it is entitled to an
exemption from United States backup withholding tax.
(d) Each Class B Purchaser
agrees that it shall use its reasonable efforts to designate a
different Investing Office if such designation will eliminate or
reduce any amount due under this Section 2.5 and will not, in
the reasonable opinion of such Class B Purchaser, be unlawful
or otherwise disadvantageous to such Class B Purchaser or
inconsistent with its policies or result in any unreimbursed cost
or expense to such Class B Purchaser. If such amount is not
eliminated by any such designation or no such designation is done
and the Class B Purchaser does not waive payment of such
amount, the Issuer shall have the right to procure a replacement
purchaser which is not so affected and which is reasonably
acceptable to the Agent for the related Purchaser Group and the
Administrative Agent (a “ Replacement Purchaser
”) to replace such Class B Purchaser. No replacement of
a Class B Purchaser shall be effected pursuant to this
subsection 2.5(d) if, after giving effect thereto, any amounts
shall be owing to the replaced Class B Purchaser hereunder.
Each affected Class B Purchaser hereby agrees to take all
actions necessary to permit a Replacement Purchaser to succeed to
its rights and obligations hereunder.
Notwithstanding the foregoing,
(i) if the Class B Purchaser being replaced pursuant to
this subsection is a Committed Purchaser, the Replacement Purchaser
shall be acceptable to the related CP Conduit and (ii) if
the Class B Purchaser being replaced pursuant to this
subsection is a CP Conduit, the Replacement Purchaser shall be
acceptable to all related Committed Purchasers; and it shall be a
condition of such replacement Committed Purchaser that such
Replacement Purchaser enter into substitute Support Facilities for
those to which the Class B Purchaser being replaced is a party
on terms mutually acceptable to the parties thereto. In the event
that a proposed Replacement Purchaser designated by the Issuer and
approved by the applicable Agent and the Administrative Agent as
provided in this subsection is not acceptable to the applicable
CP Conduit or the applicable Committed Purchasers, as
applicable, or has not within a reasonable period entered into
applicable Support Facilities, and another replacement Class B
Purchaser has not been promptly procured as provided in this
subsection with the consent of all affected parties, then any
Class B Purchaser which failed to consent to such replacement
or to enter into such Support Facilities may be replaced by a
Replacement Purchaser as provided in this subsection.
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2.6 Indemnification
.
(a) Without limiting any other
rights which any such Person may have hereunder or under applicable
law, AmeriCredit hereby agrees to indemnify each of the
Administrative Agent, the Agents, and the Class B Purchasers, and
each other Affected Party and each of their Affiliates, and each of
their respective successors, transferees, participants and assigns
and all officers, directors, managers, shareholders, controlling
persons, employees, members and agents of any of the foregoing
(each of the foregoing Persons being individually called an “
Indemnitee ”), forthwith on demand, from and against
any and all damages, losses, claims, liabilities and related costs
and expenses, including reasonable attorneys’ fees and
disbursements (all of the foregoing being collectively called
“ Indemnified Amounts ”) awarded against or
incurred by any of them arising out of or relating to any
Transaction Document or the transactions contemplated thereby or
the use of proceeds therefrom by the Issuer, including (without
limitation) in respect of the funding of any Borrowing or in
respect of any Receivable, excluding , however ,
(a) Indemnified Amounts to the extent determined by a court of
competent jurisdiction to have resulted from gross negligence or
willful misconduct on the part of such Indemnitee or its agent or
subcontractor, (b) except as otherwise provided herein,
non-payment by any obligor of an amount due and payable with
respect to a Receivable, (c) any loss in value of any Financed
Vehicle or Eligible
