--------------------------------------------------------------------------------
$225,000,000
CREDIT AGREEMENT
Dated as of October 14, 1999
among
AFS FUNDING CORP.,
as the Borrower
AMERICREDIT CORP.,
AMERICREDIT FINANCIAL SERVICES INC.,
AMERICREDIT MANAGEMENT COMPANY,
each as a Contingent Obligor
THE FINANCIAL INSTITUTIONS
FROM TIME TO TIME PARTY HERETO AS LENDERS
as the Lenders
BANKERS TRUST COMPANY,
as Lender Collateral Agent
and
CREDIT SUISSE FIRST BOSTON, NEW YORK BRANCH,
as the Administrative Agent
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TABLE OF CONTENTS
ARTICLE I DEFINITIONS AND ACCOUNTING TERMS . . . . . . . . . . . . . . . . . 2
SECTION 1.01 Certain Defined Terms . . . . . . . . . . . . . . . 2
SECTION 1.02 Computation of Time Periods.. . . . . . . . . . . . 2
SECTION 1.03 Accounting Terms. . . . . . . . . . . . . . . . . . 2
SECTION 1.04 Other Terms.. . . . . . . . . . . . . . . . . . . . 3
ARTICLE II AMOUNTS AND TERMS OF THE ADVANCES . . . . . . . . . . . . . . . . 3
SECTION 2.01 The Line of Credit; Lender Notes. . . . . . . . . . 3
SECTION 2.02 Borrowings; Notices of Borrowing and Advances.. . . 4
SECTION 2.03 [RESERVED]. . . . . . . . . . . . . . . . . . . . . 7
SECTION 2.04 Reductions of Commitments.. . . . . . . . . . . . . 7
SECTION 2.05 Prepayments of the Borrowings . . . . . . . . . . . 7
SECTION 2.06 Interest on the Advances. . . . . . . . . . . . . . 8
SECTION 2.07 Interest Rate Protection. . . . . . . . . . . . . .10
SECTION 2.08 Voluntary Conversion and Continuation of Advances..11
SECTION 2.09 Fees. . . . . . . . . . . . . . . . . . . . . . . .13
SECTION 2.10 Extensions of Commitment Expiration Date. . . . . .13
SECTION 2.11 Increased Costs; Increased Capital. . . . . . . . .13
SECTION 2.12 Taxes.. . . . . . . . . . . . . . . . . . . . . . .15
SECTION 2.13 Payments and Computations.. . . . . . . . . . . . .16
SECTION 2.14 Indemnification for Loss. . . . . . . . . . . . . .17
SECTION 2.15 Illegality. . . . . . . . . . . . . . . . . . . . .18
SECTION 2.16 Option to Fund. . . . . . . . . . . . . . . . . . .19
SECTION 2.17 Sharing of Payments, Etc. . . . . . . . . . . . . .19
SECTION 2.18 Administrative Agent's Records. . . . . . . . . . .19
ARTICLE II AGUARANTY . . . . . . . . . . . . . . . . . . . . . . . . . . . .20
SECTION 2A.01 Guaranty of Payment and Performance. . . . . . . . . . .20
SECTION 2A.02 Contingent Obligor's Agreement to Pay. . . . . . . . . .20
SECTION 2A.03. Limited Guaranty . . . . . . . . . . . . . . . . . . . .21
ARTICLE III CONDITIONS PRECEDENT . . . . . . . . . . . . . . . . . . . . . .21
SECTION 3.01 Condition Precedent to the Effectiveness of this
Agreement.. . . . . . . . . . . . . . . . . . . . .21
SECTION 3.02 Conditions Precedent to Borrowings, Conversions and
Continuations.. . . . . . . . . . . . . . . . . . .25
SECTION 3.03 Special Conditions to Advances under Liquidity
Commitments.. . . . . . . . . . . . . . . . . . . .29
(i)
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ARTICLE IV REPRESENTATIONS AND WARRANTIES. . . . . . . . . . . . . . . . . .29
SECTION 4.01 Representations and Warranties with respect to the
Borrower. . . . . . . . . . . . . . . . . . . . . .29
SECTION 4.02 Representations and Warranties with respect to the
Spread Account Depositor. . . . . . . . . . . . . .34
SECTION 4.03 Representations and Warranties with respect to each
Contingent Obligor. . . . . . . . . . . . . . . . .35
SECTION 4.04 Limited Remedies and Recourse for Breach. . . . . .36
ARTICLE V COVENANTS OF WITH RESPECT TO THE BORROWER. . . . . . . . . . . . .36
SECTION 5.01 Affirmative Covenants.. . . . . . . . . . . . . . .36
SECTION 5.02 Negative Covenants. . . . . . . . . . . . . . . . .44
SECTION 5.03 Limited Remedies and Recourse for Breach. . . . . .47
ARTICLE VA CONTINGENT OBLIGOR COVENANTS. . . . . . . . . . . . . . . . . . .47
SECTION 5A.01 Covenant of Each Contingent Obligor . . . . . . . .47
SECTION 5A.02 Covenants of ACFS . . . . . . . . . . . . . . . . .47
ARTICLE VI EVENTS OF DEFAULT . . . . . . . . . . . . . . . . . . . . . . . .49
SECTION 6.01 Events of Default.. . . . . . . . . . . . . . . . .49
SECTION 6.02 Remedies. . . . . . . . . . . . . . . . . . . . . .51
ARTICLE VIA EVENTS OF EARLY TERMINATION. . . . . . . . . . . . . . . . . . .52
SECTION 6A.01 Events of Early Termination.. . . . . . . . . . . .52
SECTION 6A.02 Consequences. . . . . . . . . . . . . . . . . . . .53
ARTICLE VIB EVENTS OF EARLY AMORTIZATION . . . . . . . . . . . . . . . . . .53
SECTION 6B.01 Events of Early Amortization. . . . . . . . . . . .53
SECTION 6B.02 Consequences. . . . . . . . . . . . . . . . . . .54
ARTICLE VII THE AGENT. . . . . . . . . . . . . . . . . . . . . . . . . . . .54
SECTION 7.01 Appointment.. . . . . . . . . . . . . . . . . . . .54
SECTION 7.02 Delegation of Duties. . . . . . . . . . . . . . . .54
SECTION 7.03 Exculpatory Provisions. . . . . . . . . . . . . . .55
SECTION 7.04 Reliance by Agent.. . . . . . . . . . . . . . . . .55
SECTION 7.05 Notices.. . . . . . . . . . . . . . . . . . . . . .55
SECTION 7.06 Non-Reliance on Agent and Other Lenders.. . . . . .56
SECTION 7.07 Indemnification.. . . . . . . . . . . . . . . . . .56
SECTION 7.08 Agent in its Individual Capacity. . . . . . . . . .57
SECTION 7.09 Successor Agent.. . . . . . . . . . . . . . . . . .57
ARTICLE VIII MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . .58
SECTION 8.01 Amendments, Etc.. . . . . . . . . . . . . . . . . .58
SECTION 8.02 Notices, Etc. . . . . . . . . . . . . . . . . . . .59
(ii)
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SECTION 8.03 No Waiver; Remedies.. . . . . . . . . . . . . . . .60
SECTION 8.04 Costs, Expenses and Indemnification.. . . . . . . .61
SECTION 8.05 Binding Effect; Termination.. . . . . . . . . . . .61
SECTION 8.06 Assignments and Participation.. . . . . . . . . . .61
SECTION 8.07 No Proceedings. . . . . . . . . . . . . . . . . . .65
SECTION 8.08 Submission to Jurisdiction; Waivers.. . . . . . . .66
SECTION 8.09 WAIVERS OF JURY TRIAL.. . . . . . . . . . . . . . .66
SECTION 8.10 GOVERNING LAW . . . . . . . . . . . . . . . . . . .67
SECTION 8.11 Execution in Counterparts.. . . . . . . . . . . . .67
SECTION 8.12 Headings. . . . . . . . . . . . . . . . . . . . . .67
SECTION 8.13 Severability. . . . . . . . . . . . . . . . . . . .67
SECTION 8.14 Integration.. . . . . . . . . . . . . . . . . . . .67
SECTION 8.15 Right of Set-Off. . . . . . . . . . . . . . . . . .67
SECTION 8.16 Limitation of Liability.. . . . . . . . . . . . . .68
SECTION 8.17 No Recourse Against Certain Persons.. . . . . . . .68
SECTION 8.18 Treatment of Certain Information. . . . . . . . . .69
SECTION 8.19 Certain Payments. . . . . . . . . . . . . . . . . .69
SECTION 8.20 Unenforceability of Contingent Obligations Against
Borrower. . . . . . . . . . . . . . . . . . . . . .70
SECTION 8.21 Waiver of Subrogation . . . . . . . . . . . . . . .70
SECTION 8.22 Subordination . . . . . . . . . . . . . . . . . . .70
SECTION 8.23 Waivers by Contingent Obligors. . . . . . . . . . .71
SECTION 8.24 Non-Recourse; Subordination of Interest on Borrower
Collateral. . . . . . . . . . . . . . . . . . . . .71
SECTION 8.25 Third Party Beneficiary . . . . . . . . . . . . . .72
ARTICLE IX FURTHERANCE OF SUBORDINATION. . . . . . . . . . . . . . . . . . .73
SECTION 9.01 Remedies Limited. . . . . . . . . . . . . . . . . .73
SECTION 9.02 Obligations Limited.. . . . . . . . . . . . . . . .73
SECTION 9.03 Subordination Agreement Governs.. . . . . . . . . .73
SECTION 9.04 Survival. . . . . . . . . . . . . . . . . . . . . .73
(iii)
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LIST OF SCHEDULES
Schedule I List of Applicable Lending Offices
(iv)
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LIST OF EXHIBITS
Exhibit A Form of Lender Note
Exhibit B Form of Notice of Borrowing
Exhibit C Form of Notice of Conversion/Continuation
Exhibit D Form of Assignment and Assumption Agreement
Exhibit E Form of Confidentiality Agreement
Exhibit F List of Series Transaction Document
LIST OF APPENDICES
Appendix A Certain Definitions
LIST OF ANNEXES
Annex I Calculation of Maximum Net Cumulative Losses
Annex II Cumulative Gross Default/Cumulative Net Loss Triggers
Annex III Information on Underlying Transactions Documents
(v)
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CREDIT AGREEMENT, dated as of October 14, 1999, by and among AFS
FUNDING CORP., a Nevada corporation (the "BORROWER"), AMERICREDIT CORP., a Texas
corporation ("ACC"), AMERICREDIT FINANCIAL SERVICES INC., a Delaware corporation
("ACFS"), AMERICREDIT MANAGEMENT COMPANY, a Delaware corporation ("AMC",
together with ACC and ACFS, each a "CONTINGENT OBLIGOR" and collectively, the
"CONTINGENT OBLIGORS"), the LENDERS from time to time parties hereto (the
Conduit Lenders, the Liquidity Lenders and the Non-contingent Lenders,
collectively, the "LENDERS"), Bankers Trust Company, a New York banking
corporation ("BANKERS TRUST"), as collateral agent under the terms of the
Security Agreement (defined below) (in such capacity, the "LENDER COLLATERAL
AGENT"), and CREDIT SUISSE FIRST BOSTON, a Swiss banking corporation acting
through its New York Branch, as administrative agent for the Lenders (together
with its successors in such capacity, the "ADMINISTRATIVE AGENT").
RECITALS
1. The Borrower has sold and contemplates selling, from time to
time, pools of receivables to various trusts which have issued and may issue
various series of notes or certificates (each a "SERIES") which will be repaid
by the proceeds of, or represent an interest in, as the case may be, such pools
of receivables.
2. A spread account has been (with respect to existing Series),
and it is contemplated that in accordance with the terms of future Series, shall
be, established into which the Borrower and/or AFS Funding Trust, a Delaware
business trust which is owned by the Borrower (the "SPREAD ACCOUNT DEPOSITOR"),
has deposited, or shall be obligated to deposit, certain moneys on or about the
closing date for each Series (each an "INITIAL SPREAD ACCOUNT DEPOSIT", and
collectively, the "INITIAL SPREAD ACCOUNT DEPOSITS").
3. In order to reduce the amount which the Spread Account
Depositor is obligated to advance as an Initial Spread Account Deposit with
respect to future Series, the Borrower and/or the Spread Account Depositor
intends to deposit certain moneys on or about the closing date for each Series
(each a "RCCA DEPOSIT", and collectively, the "RCCA DEPOSITS") in a replacement
cash collateral account (each, an "RCCA", and collectively, the "RCCAS") to
provide credit support to FSA (as defined herein) in connection with the
insurance policies it has issued and will issue with respect to the Series.
4. In order to fund the RCCAs, the Borrower has requested that the
Lenders establish a revolving line of credit to the Borrower providing for
Borrowings (as defined herein) of up to $225,000,000 in the aggregate at any
time outstanding.
5. Upon the terms and conditions contained in this Agreement and
the other Transaction Agreements, the Lenders are willing to provide such a line
of credit to the Borrower.
<PAGE>
6. Pursuant to the RCCA Agreement (as defined herein), Bank One,
N.A., as collateral agent (the "RCCA AGENT"), shall hold a security interest in
the RCCAs for the benefit of FSA in the first instance and thereafter, the
Lenders.
7. The Borrower is a Subsidiary of ACC and AFCS and an Affiliate
of AMC and as such, each Contingent Obligor will benefit from the extensions of
credit to the Borrower under this Agreement.
8. Pursuant to the Security Agreement (as defined herein), the
Lender Collateral Agent, for the benefit of the Secured Parties (as such term is
defined in the Security Agreement), as security for certain obligations of the
Borrower (including its obligations under this Agreement), shall hold a
security interest in certain property of the Borrower.
9. The Borrower has assigned to the Spread Account Depositor all
its rights under the Spread Account Agreement and, upon issuance of each new
Series, will assign to the Spread Account Depositor all its ownership interests
in the issuer trust formed in connection with such Series.
AGREEMENTS
In consideration of the premises and of the agreements herein
contained, and for other good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the Borrower, the Contingent
Obligors, the Lenders, the Lender Collateral Agent and the Administrative Agent
hereby agree as follows:
ARTICLE 1
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.1 CERTAIN DEFINED TERMS. Certain capitalized terms used
in this Agreement and not otherwise defined herein shall have the respective
meanings set forth in APPENDIX A hereto or, if not defined therein, shall have
the respective meanings set forth in the Security Agreement.
SECTION 1.2 COMPUTATION OF TIME PERIODS. In this Agreement in the
computation of periods of time from a specified date to a later specified date,
the word "from" means "from and including" and the words "to" and "until" each
means "to but excluding." Periods of days referred to in this Agreement shall
be counted in calendar days unless Business Days are expressly prescribed and
references in this Agreement to months and years shall be to calendar months and
calendar years unless otherwise specified.
SECTION 1.3 ACCOUNTING TERMS. All accounting terms not specifically
defined otherwise herein shall have the meaning customarily given in accordance
with GAAP, and all
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financial computations hereunder shall be computed, unless specifically
provided otherwise herein, in accordance with GAAP.
SECTION 1.4 OTHER TERMS. Any references herein to Exhibits,
Schedules, Appendices, Sections or Articles are references to Exhibits,
Schedules, Appendices, Sections or Articles of this Agreement, unless otherwise
specified. The words "including" and "include" are deemed to be followed by the
words "without limitation."
ARTICLE 2
AMOUNTS AND TERMS OF THE ADVANCES
SECTION 2.1 THE LINE OF CREDIT; LENDER NOTES.
(1) On and subject to the terms and conditions hereinafter set
forth, during the Commitment Period, the Borrower shall be entitled, from
time to time, to request Advances from the Lenders. The Advances made to
fund any RCCA Deposit shall not in the aggregate exceed the Maximum Borrowing
Percentage of the initial aggregate principal amount of the securities
constituting the relevant Designated Series. The Conduit Lenders may, and to
the extent a Conduit Lender has elected not to make an Advance, the Liquidity
Lenders for such Conduit Lender, in accordance with subsection 2.02(e),
shall, and the Non-contingent Lenders shall, make such Advances to the
Borrower as herein provided. The parties hereto agree that following the
Borrowings relating to the RCCA Deposit of any Designated Series (each such
Borrowing a "DESIGNATED SERIES BORROWING"), which Borrowings in the aggregate
shall not exceed the Maximum Borrowing Percentage of the initial aggregate
principal amount of the securities constituting the relevant Designated
Series, no additional Borrowing shall be requested by the Borrower nor made
by the Lenders with respect to such Designated Series. Each Lender's PRO
RATA share of any Borrowing hereunder shall be as set forth in SECTION 2.02.
The Borrower may not request Advances, and a Conduit Lender may elect not to
make, and no Liquidity Lender or Non-contingent Lender shall be required to
make, Advances, if after giving effect to such Advance the aggregate
outstanding principal amount of such Conduit Lender's Advances would exceed
its Available Maximum Advance Amount or if the aggregate outstanding
principal amount of such Liquidity Lender's Advances or such Non-contingent
Lender's Advances would exceed its Available Commitment Amount. Within the
limits set forth in this Agreement and within the limits of each Liquidity
Lender's or Non-contingent Lender's Available Commitment Amount or each
Conduit Lender's Available Maximum Advance Amount, as applicable, during the
Commitment Period the Borrower may borrow, repay pursuant to SECTION 2.05
(and subject to the provisions of the Subordination Agreement and Article IX
hereof) and reborrow (but only to fund the RCCA Deposits relating to new
Designated Series) under this SECTION 2.01 and SECTION 2.02. Subject to the
terms of SECTION 2.05, prior to the Facility Maturity Date and
notwithstanding the termination of the Commitment Period, any outstanding
Advances (other than any Advance which is a part of a Designated Series
Borrowing whose Designated Series Maturity Date has occurred) may, at the
option of the Borrower, be Converted or Continued pursuant to the terms of
SECTION 2.08.
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(2) The Advances made by each Lender shall be evidenced by a
promissory note of the Borrower, substantially in the form of EXHIBIT A,
bearing the legend set forth in Exhibit A regarding subordination, with
appropriate insertions therein as to date and principal amount (each, as
indorsed or modified from time to time, a "LENDER NOTE" and, collectively
with the Lender Notes of all other Lenders, the "LENDER NOTES"), payable to
the order of such Lender for the account of its Applicable Lending Office,
dated the Closing Date (or, if later, the date of the Assignment and
Assumption pursuant to which such Lender became a party to this Agreement)
and in the stated principal amount equal to in the case of a Non-contingent
Lender, its Non-contingent Lending Commitment Amount, or in the case of a
Liquidity Lender, its Liquidity Commitment Amount, or, in the case of a
Conduit Lender, its Maximum Advance Amount.
(3) With respect to each Designated Series Borrowing, the entire
outstanding principal amount of such Designated Series Borrowing shall mature
and be due and payable on the later of the applicable Designated Series
Maturity Date and the earliest date permitted under the provisions of the
Subordination Agreement and Article IX hereof, together with all accrued and
unpaid amounts due under this Agreement or other Transaction Documents with
respect to such Designated Series Borrowing. In the event the aggregate
amount of funds in any RCCA with respect to a Designated Series (including
the value of all investments made by the trustee of such Designated Series in
Cash Equivalents or other investments permitted under the related Series
Transaction Documents) is less than the aggregate outstanding principal
amount of the Designated Series Borrowings advanced to fund such RCCA, the
portion of such Designated Series Borrowings equal to such deficiency shall
be due and payable immediately, if permitted under the provisions of the
Subordination Agreement and Article IX hereof, or otherwise at the earliest
date permitted under the provisions of the Subordination Agreement and
Article IX hereof together with all accrued and unpaid amounts due under this
Agreement or other Transaction Documents with respect to that portion of such
Designated Series Borrowings, including without limitation any amounts which
may be due under SECTION 2.14. Without limiting the foregoing, the entire
outstanding principal amount of all Borrowings shall mature and be due and
payable on the later of the Facility Maturity Date and the earliest date
permitted under the provisions of the Subordination Agreement and Article IX
hereof, together with all accrued and unpaid interest thereon and all other
accrued and unpaid amounts due under this Agreement and the other Transaction
Documents.
SECTION 2.2 BORROWINGS; NOTICES OF BORROWING AND ADVANCES.
(1) The Borrower shall give the Administrative Agent written notice
(a "NOTICE OF BORROWING") not later than 4:00 p.m. (New York City time) on the
Business Day prior to a Borrowing hereunder proposed to consist of Base Rate
Advances or Commercial Paper Rate Advances, and not later than 4:00 p.m. (New
York City time) on the third Business Day prior to a Borrowing hereunder
proposed to consist of Eurodollar Rate Advances. If a Notice of Borrowing is
transmitted by telecopy, the Borrower shall promptly provide written
confirmation thereof to the Administrative Agent. A Notice of Borrowing shall
be substantially in the form of EXHIBIT B hereto and shall specify, subject to
the terms and conditions of this Agreement, (i) the date of the proposed
Borrowing (the "BORROWING DATE"), (ii) the amount of the proposed Borrowing, and
(iii) the Type or Types of the Advances to be made as part of such proposed
Borrowing. Each Notice of
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Borrowing shall be irrevocable. If the Administrative Agent receives a
Notice of Borrowing at or before 4:00 p.m. on a Business Day, it shall
provide each Lender with a copy thereof on such Business Day, and otherwise
it shall provide each Lender with a copy thereof on the following Business
Day.
(2) The Borrowing Date specified in any Notice of Borrowing
shall be a Business Day during the Commitment Period.
(3) Unless the Administrative Agent otherwise consents, the
amount of any proposed Borrowing shall be at least $3,000,000.
(4) All Advances in respect of a Borrowing specified in a Notice
of Borrowing shall be of the same Type, except that if on the applicable
Borrowing Date there are both Conduit Lenders and Non-contingent Lenders, a
Notice of Borrowing may specify that all Advances by Conduit Lenders are to
be Commercial Paper Rate Advances and all Advances to be made by such
Non-contingent Lenders are to be Base Rate Advances or Eurodollar Rate
Advances. The Borrower may request Commercial Paper Rate Advances only from
Conduit Lenders. If there are Conduit Lenders as of a Borrowing Date, the
Borrower must request that each Conduit Lender's Advance in respect of a
Borrowing on such Borrowing Date be a Commercial Paper Rate Advance, unless
such Conduit Lender otherwise consents or has advised the Borrower that it
has ceased or as of such Borrowing Date will cease for any reason to fund its
making or maintenance of its Advances with Commercial Paper Notes (including
by reason of its obtaining Support Advances). It is the intent of the
Borrower and the Conduit Lenders to fund Advances in the commercial paper
market to the extent practicable.
(5) On and subject to the terms and conditions of this
Agreement, following receipt by the Administrative Agent and the Lenders of a
proper Notice of Borrowing, (i) each Conduit Lender may elect to make an
Advance on the applicable Borrowing Date in an amount equal to its Lending
Percentage of the requested Borrowing, and (ii) each Non-contingent Lender
shall make an Advance on such Borrowing Date in an amount equal to its
Lending Percentage (as a Non-contingent Lender) of such Borrowing. Each
Conduit Lender shall notify the Administrative Agent and each of its related
Liquidity Lenders at or before 11:30 a.m. (New York City time) on the
applicable Borrowing Date whether it has elected to make its Advance pursuant
to this SECTION 2.02(e) in respect of the Borrowing to be made on such date
and, if not, shall in such notice specify the identity of each of its
Liquidity Lenders and their respective Liquidity Percentages on such
Borrowing Date. In the event that a Conduit Lender has elected not to make
such Advance or shall not have timely provided such notice (in which case it
shall be deemed to have elected not to make such Advance), each of such
Conduit Lender's Liquidity Lenders shall make an Advance on such Borrowing
Date in an amount equal to its Liquidity Percentage of such Conduit Lender's
Lending Percentage of the Borrowing to be made on such Borrowing Date.
(6) Each applicable Lender shall (subject to SECTION 2.02(g) in the
case of Conduit Lenders), before 11:30 p.m. (New York City time) on a Borrowing
Date, make available for the account of its Applicable Lending Office to the
Administrative Agent at its account referred
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to in SECTION 2.13(a), by wire transfer of immediately available funds, such
Lender's PRO RATA share of such requested Borrowing. The Administrative
Agent shall promptly notify the Borrower in the event that any Lender either
fails to make such funds available to the Administrative Agent before such
time or notifies the Administrative Agent that it will not make such funds
available to the Administrative Agent before such time; PROVIDED, however,
that the Administrative Agent shall have no liability for failing to give any
notice as provided in this sentence. Subject to (x) the Administrative
Agent's receipt of such funds and (y) the fulfillment of the applicable
conditions set forth in ARTICLE III, as determined by the Administrative
Agent, the Administrative Agent will by no later than 12:00 noon (New York
City time) on such Borrowing Date make such funds available, in the same type
of funds received, by wire transfer thereof to the relevant RCCA (which shall
be designated by the Borrower in the Notice of Borrowing).
(7) In the event that a Conduit Lender elected to make an
Advance on a Borrowing Date but failed to do so by the time contemplated by
SECTION 2.02(f), such Lender shall be deemed to have rescinded its election
to make such Advance, and neither the Borrower nor any other party shall have
any claim against such Conduit Lender by reason for its failure to timely
make such Advance. In any such case, the Administrative Agent shall give
notice of such failure not later than 12:00 noon (New York City time) on the
Borrowing Date to each Liquidity Lender with respect to such Conduit Lender,
which notice shall specify the identity of such Conduit Lender, the amount of
the Advance which it had elected to make and the respective Liquidity
Percentages of such Liquidity Lenders on such Borrowing Date (as determined
by the Administrative Agent in good faith; for purposes of such
determination, the Administrative Agent shall be entitled to rely
conclusively on the most recent information provided by such Conduit Lender
or its agent or by the agent for its Support Parties). Subject to receiving
such notice, each of such Conduit Lender's Liquidity Lenders shall make an
Advance on such Borrowing Date in an amount equal to its Liquidity Percentage
of such Conduit Lender's Lending Percentage of the Borrowing to be made on
such Borrowing Date at or before 1:00 p.m. (New York City time) on such
Borrowing Date and otherwise in accordance with SECTION 2.02(f). Subject to
(x) the Administrative Agent's receipt of such funds and (y) the fulfillment
of the applicable conditions set forth in ARTICLE III, as determined by the
Administrative Agent, the Administrative Agent will by no later than 1:30
p.m. (New York City time) on such Borrowing Date make such funds available,
in the same type of funds received, by wire transfer thereof to the relevant
RCCA (which shall be designated by the Borrower in the Notice of Borrowing).
In the event that any Liquidity Lender made an Advance on a Borrowing Date in
lieu of a Conduit Lender, not later than the Business Day following such
Borrowing Date, the Administrative Agent shall give notice to the Borrower
specifying the amount of such Advance and identifying such Liquidity Lender.
(8) Advances made by Lenders in respect of a Notice of Borrowing
shall initially be of the Type or Types specified in such Notice of
Borrowing; PROVIDED that if a Notice of Borrowing requested Advances from
Conduit Lenders to be Commercial Paper Rate Advances and one or more
Liquidity Lenders made Advances in lieu of Conduit Lenders, the Advances made
by such Liquidity Lenders shall initially be Base Rate Advances (subject to
Conversion thereof pursuant to SECTION 2.08).
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(9) The obligations of Lenders hereunder, including the
obligations of the Liquidity Lenders and the Non-contingent Lenders to make
Advances, shall be several and not joint obligations of such Lenders. The
failure of any Liquidity Lender or Non-contingent Lender to make the Advance
to be made by it as part of any Borrowing shall not relieve any other
Liquidity Lender or Non-contingent Lender of its obligation hereunder to make
its Advance on the date of such Borrowing, but except as provided in SECTION
2.02(g) with respect to Liquidity Lenders, no Lender shall be responsible for
the failure of any other Lender to make the Advance to be made by such other
Lender on the date of any Borrowing.
(10) Notwithstanding anything in this Section to the contrary,
the Administrative Agent may, in its sole discretion, accept and act without
liability upon the basis of a telephonic notice of borrowing (which notice
shall be irrevocable and shall be promptly confirmed by a written Notice of
Borrowing sent by facsimile) believed by the Administrative Agent in good
faith to be from an Authorized Officer of the Borrower. The Administrative
Agent's records regarding the terms of such telephone notice of borrowing
shall be presumptively correct absent manifest error. The fact that the
Administrative Agent may so act in any circumstance shall not be deemed a
waiver of compliance with the procedures of this SECTION 2.02 in any other
circumstance.
SECTION 2.3 [RESERVED]
SECTION 2.4 REDUCTIONS OF COMMITMENTS.
(1) The Borrower shall have the right, upon at least three
Business Day's prior written notice to the Administrative Agent, at any time
to permanently reduce the Total Commitment Amount to zero and terminate all
Commitments or from time to time to permanently reduce the Total Commitment
Amount in part; PROVIDED, HOWEVER, that each partial reduction shall be in
the amount of at least $20,000,000 or an integral multiple of $1,000,000 in
excess of that amount.
(2) The Total Commitment Amount shall automatically be permanently
reduced by the amount of any payments by the Contingent Obligors hereunder with
respect to (i) the Contingent Obligations with respect to the principal amount
of Advances, (ii) the amounts payable by the Contingent Obligors pursuant to
Section 2.05(e)(ii) and (iii) the amounts payable by the Contingent Obligors
pursuant to Section 6.02 with respect to the principal amount of Advances.
(3) Each reduction in the Total Commitment Amount shall be applied
PRO RATA to the Non-contingent Lending Commitment Amount of each Non-contingent
Lender and to the Maximum Advance Amount of each Conduit Lender according to
such Lender's Lending Percentage. Each reduction in the Maximum Advance Amount
of a Conduit Lender shall automatically result in a PRO RATA reduction of the
Liquidity Commitment Amount of each Liquidity Lender relating to such Conduit
Lender according to each such Liquidity Lender's Liquidity Commitment Amount.
The Total Commitment Amount shall not be reduced below an amount equal to the
outstanding principal amount of all Advances.
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SECTION 2.5 PREPAYMENTS OF THE BORROWINGS.
(1) The Borrowings shall not be prepaid except as expressly set
forth herein.
(2) [RESERVED]
(3) MANDATORY PREPAYMENT OF THE BORROWINGS ARISING FROM RCCA
DISTRIBUTIONS. Subject to the provisions of the Subordination Agreement and
Article IX hereof, until this Agreement has been terminated and all outstanding
Borrowings, all accrued and unpaid interest on such Borrowings, and all other
accrued and unpaid amounts due under this Agreement and other Transaction
Documents have been paid in full, the Borrower shall pay, from time to time,
immediately upon its receipt of the same, to the Lender Collateral Agent, all
RCCA Distributions. Subject to the provisions of the Subordination Agreement
and Article IX hereof, all RCCA Distributions paid to the Lender Collateral
Agent pursuant to this subsection shall be applied by the Lender Collateral
Agent in accordance with the terms of Section 6 of the Security Agreement.
(4) MANDATORY PREPAYMENT OF THE BORROWINGS FOLLOWING DESIGNATED
SERIES AMORTIZATION DATE. If the entire outstanding principal amount of any
Designated Series Borrowing has not been repaid in full on the related
Designated Series Amortization Date, the Borrower shall repay on such Designated
Series Amortization Date and on each of the four succeeding Distribution Dates,
an amount of the outstanding Borrowings equal to 20% of the outstanding
principal amount of such Designated Series Borrowings on the Designated Series
Amortization Date; provided that no such payment shall be made earlier than the
earliest date permitted under the provisions of the Subordination Agreement and
Article IX hereof.
(5) MANDATORY PREPAYMENT OF THE BORROWINGS FOLLOWING EVENT OF EARLY
AMORTIZATION. Following the occurrence and during the continuance of any Event
of Early Amortization, on each succeeding Distribution Date (i) the Borrower
shall repay an amount of the outstanding Borrowings equal to the Nonallocated
Amount Available (as defined in the Security Agreement) available on such
Distribution Date to be applied pursuant to Section 6(c)(iv) of the Security
Agreement; provided that no such payment shall be made earlier than the earliest
date permitted under the provisions of the Subordination Agreement and Article
IX hereof, and (ii) the Contingent Obligors shall repay an amount of the
Borrowings equal to $5,000,000.
(6) IN GENERAL. Any prepayments of Advances in full or in part to
any Lender shall be made together with accrued interest to the date of such
prepayment on the amount prepaid. All prepayments of Borrowings shall be
applied PRO RATA based on the outstanding principal amount of Advances owed to
each Lender. Each prepayment of Advances owed to a Lender shall be applied to
Base Rate Advances, Eurodollar Rate Advances and Commercial Paper Rate Advances
in any manner deemed appropriate by the Administrative Agent, after consultation
with the Borrower. If any prepayment is made in respect of any Eurodollar Rate
Advance, in whole or in part, prior to the last day of the applicable Interest
Period, or if any prepayment is made in respect of any Commercial Paper Rate
Advance, in whole or in part, prior to the last day of an applicable Fixed
Period, the Borrower agrees to indemnify the affected Lenders in accordance with
SECTION 2.14.
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SECTION 2.6 INTEREST ON THE ADVANCES.
(1) Subject to the provisions of the Subordination Agreement and
Article IX hereof, the Borrower shall pay to the Administrative Agent for the
account of each Lender interest on the unpaid principal amount of each Advance
made by such Lender from the date of such Advance until such principal amount
shall be paid in full, at the following rates per annum:
(1) for Commercial Paper Rate Advances owed to a Conduit
Lender, a rate per annum equal to the Commercial Paper Rate for such
Conduit Lender in effect from time to time;
(2) for Eurodollar Rate Advances, a rate per annum equal at
all times during the Interest Period for such Advance to the Adjusted
Eurodollar Rate for such Interest Period; and
(3) for Base Rate Advances, a rate per annum equal to the
Alternate Base Rate in effect from time to time.
(2) Subject to the provisions of the Subordination Agreement and
Article IX hereof, Interest on each Advance shall be payable on each Interest
Payment Date for such Advance and upon each payment (including prepayment) of
the Borrowings.
(3) Subject to the provisions of the Subordination Agreement and
Article IX hereof, any amount of principal of any Advance or any other amount
owing hereunder which (i) remains outstanding following the Facility Maturity
Date, (ii) is not paid when due (whether at stated maturity, by acceleration or
otherwise) or (iii) is prevented from coming due by operation of the provisions
of the Subordination Agreement and Article IX hereof shall bear interest, from
the date on which such amount is due or would have, but for operation of the
provisions of the Subordination Agreement and Article IX hereof, become due
until such amount is paid in full, payable on the later of the date of demand
and the earliest date permitted under the provisions of the Subordination
Agreement and Article IX hereof, at a rate per annum (the "DEFAULT RATE") equal
at all times (whether before or after the entry of a judgment thereon) to (x)
with respect to any amount of principal, 0.5% plus the rate which would
otherwise be applicable pursuant to SECTION 2.06(a) or (y) with respect to any
other amounts, 5% plus the Alternate Base Rate in effect from time to time.
(4) Interest on (i) Base Rate Advances shall be calculated on the
basis of a 365 or 366-day year (as the case may be), and (iii) other Advances
shall be calculated on the basis of a 360-day year, in each case, for the actual
number of days elapsed. Any change in the interest rate on the Borrowings
resulting from a change in any applicable rate shall become effective as of the
opening of business on the day on which such change in the applicable rate shall
become effective.
(5) The Administrative Agent shall promptly notify the Borrower and
the Lenders of the applicable interest rate determined by the Administrative
Agent for purposes of SECTION 2.06(a), but any failure to so notify shall not in
any manner affect the obligation of the
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Borrower to pay interest on the Borrowings in the amounts and on the dates
required. If a Commercial Paper Rate is applicable to an Advance owed to a
Conduit Lender during any Interest Period, such Conduit Lender shall notify
the Administrative Agent of the Commercial Paper Rate for such Interest
Period not later than the Business Day preceding the end of such Interest
Period (a "COMMERCIAL PAPER RATE DETERMINATION DATE") for the purpose of
determining the applicable interest rate under SECTION 2.06(a)(i). Such
notification may be based on such Conduit Lender's estimate of the Commercial
Paper Rate, if the actual rate is not then known to such Conduit Lender, and
in such case, such Conduit Lender shall notify the Administrative Agent on or
before the following Commercial Paper Rate Determination Date of the amount
of any variation between interest payable to such Conduit Lender for the
applicable Interest Period based on such estimate and interest which should
have been payable to such Conduit Lender for such Interest Period based on
its final determination (based on the actual rates) of the applicable
Commercial Paper Rate. The amount of any shortfall in interest based on such
variation shall be due and payable to such Conduit Lender on the next
Interest Payment Date on which interest is payable to such Conduit Lender
hereunder, and the amount of any overpayment of interest to such Conduit
Lender based on such variation shall be credited, dollar for dollar, against
interest otherwise payable to such Conduit Lender on such Interest Payment
Date. Each determination of the applicable interest rate by the
Administrative Agent or a Conduit Lender pursuant to this Agreement shall be
conclusive and binding on all parties hereto absent manifest error.
(6) With respect to any Commercial Paper Rate Advance to be made by
any Conduit Lender, the Administrative Agent, in its sole discretion exercised
in good faith after consultation with such Conduit Lender and the Borrower,
shall select the duration of the initial and each subsequent Fixed Period
relating to such Commercial Paper Rate Advance, provided that any Fixed Period
selected by the Administrative Agent applicable to a Commercial Paper Rate
Advance owing to a Conduit Lender shall have been approved (in writing or by
telephone promptly confirmed in writing) by such Conduit Lender. In selecting
such Fixed Period, the Administrative Agent shall use reasonable efforts, taking
into consideration the market conditions, to accommodate the Borrower's
preferences; PROVIDED HOWEVER, that the Administrative Agent shall have the
ultimate authority to make all such selections. Unless consented to or directed
by the Administrative Agent, the aggregate number of Fixed Periods for all
Commercial Paper Rate Advances outstanding at any one time hereunder shall not
exceed 25, it being understood that if necessary to match the funding
requirements of a Conduit Lender, any Commercial Paper Rate Advance may be
divided into portions having different Fixed Periods.
SECTION 2.7 INTEREST RATE PROTECTION.
(1) If, with respect to any Eurodollar Rate Advances, the Liquidity
Lenders or Non-contingent Lenders collectively holding greater than 50% of the
outstanding principal amount of Eurodollar Rate Advances, or in the event that
no Eurodollar Rate Advances are then outstanding, then the Liquidity Lenders or
Non-contingent Lenders collectively holding greater than 50% of the Total
Commitment Amount notify the Administrative Agent that they have determined
(which determination shall be conclusive and binding upon the Borrower) that by
reasons of circumstances affecting the interbank Eurodollar market either
adequate and reasonable means do not exist for
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ascertaining the Adjusted Eurodollar Rate applicable pursuant to SECTION
2.06(a)(ii) or that the applicable Adjusted Eurodollar Rate will not
adequately and fairly reflect the cost to such Lenders of making, funding or
maintaining their respective Eurodollar Rate Advances, the Administrative
Agent shall forthwith so notify the Borrower and the Lenders, whereupon
(1) each Eurodollar Rate Advance, to the extent not then
repaid, will automatically, on the last day of the then existing Interest
Period therefor, Convert into a Base Rate Advance, and
(2) the obligation of the Lenders to make or to Continue, or
to Convert Advances into, Eurodollar Rate Advances shall be suspended until
the Administrative Agent shall notify the Borrower and the Lenders that the
circumstances causing such suspension no longer exist.
(2) On the date on which the aggregate unpaid principal amount of
Advances constituting any Borrowing shall be reduced, by payment or prepayment
or otherwise, to less than $5,000,000, such Advances shall, if they constitute
Eurodollar Rate Advances, automatically Convert into Base Rate Advances, and on
and after such date the right of the Borrower to Convert such Advances into
Advances of a Type other than Base Rate Advances shall terminate unless such
Advances are combined with the Advances constituting another Borrowing, as
contemplated by SECTION 2.08(a), with the result that the aggregate unpaid
principal balance of all the Advances so combined equals or exceeds $5,000,000.
(3) If and to the extent that, with respect to a Commercial Paper
Rate Advance from a Conduit Lender, such Conduit Lender shall for any reason
prior to the end of the Fixed Period applicable to such Commercial Paper Rate
Advance (i) assign such Advance or a portion thereof pursuant to a Support
Facility to a Liquidity Lender for such Conduit Lender, or (ii) cease for any
reason to fund its making or maintenance of such Advance or a portion thereof
with Commercial Paper Notes (including by reason of its obtaining Support
Advances), upon notice from such Conduit Lender to the Administrative Agent,
such Commercial Paper Rate Advance, or such portion thereof shall automatically
be Converted into a Base Rate Advance on the effective date of such notice.
SECTION 2.8 VOLUNTARY CONVERSION AND CONTINUATION OF ADVANCES.
(1) Prior to the Facility Maturity Date, the Borrower shall have
the option with respect to any outstanding Advance (other than any Advance which
is part of a Designated Series Borrowing whose Designated Series Maturity Date
has occurred), (i) to Convert all or any portion thereof which constitutes Base
Rate Advances to Eurodollar Rate Advances on any Interest Payment Date; (ii) to
Convert all or any portion of any outstanding Eurodollar Rate Advances to Base
Rate Advances upon the expiration date of the Interest Period applicable to such
Eurodollar Rate Advances; or (iii) to Continue all or any portion of such
Eurodollar Rate Advances as Eurodollar Rate Advances upon the expiration of the
Interest Periods applicable to any outstanding Eurodollar Rate Advances. In
addition, prior to the Facility Maturity Date the Borrower shall have the option
with respect any outstanding Advance (other than any Advance which is a part of
a Designated
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Series Borrowing whose Designated Series Maturity Date has occurred) owed to
a Conduit Lender (i) to Convert all or any portion thereof which constitutes
a Base Rate Advance to a Commercial Paper Rate Advance upon any Business Day;
or (ii) to Convert all or any portion thereof which constitutes a Eurodollar
Rate Advance to a Commercial Paper Rate Advance upon the expiration date of
the Interest Period applicable to such Eurodollar Rate Advance; PROVIDED that
no such Advance may be Converted to a Commercial Paper Rate Advance pursuant
to this sentence if such Conduit Lender shall have given the Administrative
Agent a notice (which has not been withdrawn by further notice to the
Administrative Agent) that it has ceased to (or will not) for any reason fund
its making or maintenance of such Advances or a portion thereof with
Commercial Paper Notes (including by reason of its obtaining Support
Advances). Notwithstanding the foregoing, (i) the Borrower shall in no event
Convert or Continue all or any portion of any Advance unless each other
Advance of the same Type comprised by the Borrowing that includes that
Advance is correspondingly Converted or Continued, as applicable; PROVIDED
that Advances owed to a Conduit Lender may be Converted to Commercial Paper
Rate Advances although other Advances of the same Type and comprising the
same Borrowing owed to Lenders which are not Conduit Lenders are not
correspondingly Converted, and (ii) an Advance which is required to be
converted pursuant to SECTION 2.07(c) may not later be Converted into or
Continued as a Eurodollar Rate Advance if the Interest Period applicable
thereto would end after the date on which such repayment is required to be
made. The Borrower's right to Convert or Continue Advances pursuant to this
SECTION 2.08 shall be understood to include the right (i) to divide any
Borrowing into two or more Borrowings having aggregate principal equal to the
principal of such Borrowing or (ii) to combine any two or more Borrowings
into a single Borrowing having principal equal to the aggregate principal of
such Borrowings. If, after giving effect to any combination or division of
Borrowings as contemplated by this SECTION 2.08(a), the aggregate unpaid
principal amount of the Advances constituting a Borrowing is less than
$5,000,000, those Advances may not be Converted into or Continued as
Eurodollar Rate Advances.
(2) To Convert or Continue any Advance under SECTION 2.08(a), the
Borrower shall deliver a Notice of Conversion/Continuation to the Administrative
Agent not later than 4:00 p.m. (New York City time) on (i) the third Business
Day prior to the date of the proposed Conversion/Continuation if such Advance is
to be Converted into or Continued as a Eurodollar Rate Advance or if the Advance
is to be Converted from a Eurodollar Advance into any other Type of Advance, and
(ii) the Business Day prior to the date of the proposed Conversion/Continuation
in any other case. If a Notice of Conversion/Continuation is transmitted by
telecopy, the Borrower shall promptly provide written confirmation thereof to
the Administrative Agent. If the Administrative Agent receives such a Notice of
Conversion/Continuation at or before 4:00 p.m. on a Business Day, it shall
provide each Lender with a copy thereof on such Business Day, and otherwise it
shall provide each Lender with a copy thereon on the following Business Day.
Each Notice of Conversion/Continuation shall be in the form attached hereto as
EXHIBIT C and shall specify (i) the date of such proposed
Conversion/Continuation (which shall be a Business Day), (ii) the Advances to be
Converted and/or Continued, (iii) the principal amount of the Advances to be
Converted and/or Continued, and (iv) whether such Advance is to be Converted or
Continued. Any Notice of Conversion/Continuation shall be irrevocable, and the
Borrower shall be bound to Convert or to Continue the Advances in accordance
therewith. If the Borrower shall fail to deliver a Notice of
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Conversion/Continuation to the Administrative Agent as aforesaid with respect to
any Type of Advance, such Advance shall automatically be Continued as the same
Type of Advance if otherwise permitted by this Agreement on the last day of the
then existing Interest Period therefor or if, not permitted to be so Continued,
shall automatically Convert to a Base Rate Advance on such date.
(3) Notwithstanding any provision of SECTION 2.08(b) to the
contrary, the Administrative Agent may, in its sole discretion, accept and act
without liability upon the basis of a telephonic notice of
Conversion/Continuation (which notice shall be irrevocable and shall be promptly
confirmed by a written Notice of Conversion/Continuation sent by facsimile)
believed by the Administrative Agent in good faith to be from an Authorized
Officer of the Borrower. The Administrative Agent's records regarding the terms
of such telephone notice of such borrowing shall be presumptively correct absent
manifest error. The fact that the Administrative Agent may so act in any
circumstance shall not be deemed a waiver of compliance with the procedures of
SECTION 2.08(b) in any other circumstance.
SECTION 2.9 FEES. The Borrower agrees to pay to the Administrative
Agent those fees set forth in the Fee Letter in accordance with the terms
thereof, subject to the provisions of the Subordination Agreement and Article IX
hereof.
SECTION 2.10 EXTENSIONS OF COMMITMENT EXPIRATION DATE. If the
Borrower desires the Commitment Expiration Date to be extended for an additional
year, the Borrower shall so notify the Administrative Agent in writing not more
than 60 days nor less than 30 days prior to the then effective Commitment
Expiration Date. The Administrative Agent shall promptly give a copy of such
request to each Committed Lender. If during the 30 days following receipt of
such request, each Committed Lender shall agree in writing to such requested
extension of the Commitment Expiration Date, then, unless the Borrower shall
have determined not to accept such extension prior to the then effective
Commitment Expiration Date, the Commitment Expiration Date shall be so extended.
If any Committed Lender shall not notify the Administrative Agent of its
decision with respect to any such request within 30 days of receipt of such
request, then such Lender shall be deemed to have declined to extend the
Commitment Expiration Date.
SECTION 2.11 INCREASED COSTS; INCREASED CAPITAL.
(1) In the event that any Lender shall have reasonably determined
that any Regulatory Change shall:
(1) subject such Lender to any Taxes of any kind whatsoever,
other than Excluded Taxes, with respect to this Agreement, its Commitment
or its Advances, or change the basis of taxation of payments in respect
thereof; or
(2) impose, modify or hold applicable any reserve, special
deposit, compulsory loan, assessment, increased cost 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 Lender or any office of such Lender in
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respect of its Commitment or Advances and which, in the case of Eurodollar
Advances, is not otherwise included in the determination of the Adjusted
Eurodollar Rate,
and the result of any of the foregoing is to increase the cost to such Lender,
by an amount which such Lender deems to be material, of maintaining its
Commitment or of making, renewing, Converting, Continuing or maintaining its
Advances or to reduce any amount receivable in respect thereof, THEN, in any
such case, after submission by such Lender to the Administrative Agent of a
written request therefor and the submission by the Administrative Agent to the
Borrower of such written request therefor, subject to the provisions of the
Subordination Agreement and Article IX hereof, the Borrower shall pay to the
Administrative Agent for the account of such Lender any additional amounts
necessary to compensate such Lender for such increased cost or reduced amount
receivable.
(2) In the event that any Lender shall have determined that any
Regulatory Change regarding capital adequacy has the effect of reducing the rate
of return on such Lender's capital or on the capital of any Person directly or
indirectly owning or controlling such Lender as a consequence of its obligations
hereunder or its maintenance of its Commitment or its making, renewing,
Converting, Continuing or maintaining its Advances to a level below that which
such Lender or such Person could have achieved but for such Regulatory Change
(taking into consideration such Lender's or such Person's policies with respect
to capital adequacy) by an amount deemed by such Lender or such Person to be
material, THEN, from time to time, after submission by such Lender to the
Administrative Agent of a written request therefor and submission by the
Administrative Agent to the Borrower of such written request therefor, subject
to the provisions of the Subordination Agreement and Article IX hereof, the
Borrower shall pay to the Administrative Agent for the account of such Lender
such additional amount or amounts as will compensate such Lender or such Person,
as the case may be, for such reduction.
(3) Each Lender agrees that it shall use its reasonable efforts to
reduce or eliminate any claim for compensation pursuant to this SECTION 2.11,
including but not limited to designating a different Applicable Lending Office
for its Advances (or any interest therein) if such designation will avoid the
need for, or reduce the amount of, any increased amounts referred to in this
SECTION 2.11 and will not, in the opinion of such Lender, be unlawful or
otherwise disadvantageous to such Lender or inconsistent with its policies or
result in an unreimbursed cost or expense to such Lender or in an increase in
the aggregate amount payable under both this SECTION 2.11 or under SECTION 2.12.
(4) Each Lender claiming increased amounts described in this
SECTION 2.11 will furnish to the Administrative Agent (together with its request
for compensation) a certificate prepared in good faith setting forth the basis
and the amount of each request by such Lender for any such increased amounts
referred to in this SECTION 2.11. Any such certificate shall be conclusive
absent manifest error, and the Administrative Agent shall deliver a copy thereof
to the Borrower. Failure on the part of any Lender to demand compensation for
any amount pursuant to this SECTION 2.11 with respect to any period shall not
constitute a waiver of such Lender's right to demand compensation with respect
to such period. All such amounts shall be due and payable to the Administrative
Agent on behalf of such Lender or for its own account, as the case may be,
within
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five Business Days following receipt by the Borrower of such certificate (or,
if earlier, on the Designated Series Maturity Date or the Facility Maturity
Date or when earlier required to be paid as provided herein).
SECTION 2.12 TAXES.
(1) All payments made to the Lenders or the Administrative Agent
under this Agreement and the Lender Notes and the other Transaction Documents
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 income taxes,
franchise taxes imposed in lieu of income taxes or any other taxes based on or
measured by the overall net income of the Lender or its Applicable Lending
Office or the Administrative Agent (as the case may be) by the jurisdiction in
which such Lender or the Administrative Agent (as the case may be) is
incorporated or has its principal place of business or such Applicable Lending
Office (such excluded taxes being herein called "EXCLUDED TAXES"). If any
Taxes, other than Excluded Taxes, are required to be withheld from any amounts
payable to a Lender or the Administrative Agent hereunder or under any Lender
Note or other Transaction Document, THEN after submission by any Lender to the
Administrative Agent (in the case of an amount payable to a Lender) and by the
Administrative Agent to the Borrower of a written request therefor, the amounts
so payable to such Lender or the Administrative Agent, as applicable, shall be
increased, and, subject to the provisions of the Subordination Agreement and
Article IX hereof, the Borrower shall be liable to pay to the Administrative
Agent for the account of such Lender or for its own account, as applicable, the
amount of such increase, to the extent necessary to yield to such Lender 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 herein or therein; PROVIDED, HOWEVER, that the amounts so
payable to such Lender or the Administrative Agent shall not be increased
pursuant to this SECTION 2.12(a) to the extent such requirement to withhold
results from the failure of such Person to comply with SECTION 2.12(c).
Whenever any Taxes are payable on or with respect to amounts payable to a Lender
or the Administrative Agent, as promptly as possible thereafter the Borrower
shall send to the Administrative Agent, on behalf of such Lender (if
applicable), a certified copy of an original official receipt showing payment
thereof. If the Borrower fails to pay any Taxes when due to the appropriate
taxing authority or fails to remit to the Administrative Agent, on behalf of
itself or such Lender (as applicable), the required receipts or other required
documentary evidence, the Borrower shall, subject to the provisions of the
Subordination Agreement and Article IX hereof, pay to the Administrative Agent
on behalf of such Lender or for its own account, as applicable, any incremental
taxes, interest or penalties that may become payable by such Lender or the
Administrative Agent, as applicable, as a result of any such failure.
(2) A Lender claiming increased amounts under SECTION 2.12(a) for
Taxes paid or payable by such Lender will furnish to the Administrative Agent a
certificate prepared in good faith setting forth the basis and amount of each
request by such Lender for such Taxes, and the Administrative Agent shall
deliver a copy thereof to the Borrower. The Administrative Agent
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claiming increased amounts under SECTION 2.12(a) for its own account for
Taxes paid or payable by the Administrative Agent will furnish to the
Borrower a certificate prepared in good faith setting forth the basis and
amount of each request by the Administrative Agent for such Taxes. Any such
certificate of a Lender or the Administrative Agent shall be conclusive
absent manifest error. Failure on the part of any Lender or the
Administrative Agent to demand additional amounts pursuant to SECTION 2.12(a)
with respect to any period shall not constitute a waiver of the right of such
Lender 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 the Administrative Agent on behalf of such Lender or for its own
account, as the case may be, on the later of (i) the date five Business Days
following receipt by the Borrower of such certificate (or, if earlier, on the
Series Maturity Date or on the Facility Maturity Date or when earlier
required to be paid as provided herein) and (ii) the earliest date permitted
under the provisions of the Subordination Agreement and Article IX hereof.
(3) The Administrative Agent and each Lender that is not a United
States person (as such term is defined in Section 7701(a)(30) of the Code) for
Federal income tax purposes shall, to the extent that it may then do so under
applicable laws and regulations, deliver to the Borrower (with, in the case of
each Lender, a copy to the Administrative Agent) (i) within 15 days after the
date hereof, or, if later, the date on which such Lender becomes a Lender
pursuant to SECTION 8.06 hereof, two (or such other number as may from time to
time be prescribed by applicable laws or regulations) duly completed copies of
IRS Form 4224 or Form 1001 (or any successor forms or other certificates or
statements which may be required from time to time by the relevant United States
taxing authorities or applicable laws or regulations), as appropriate, to permit
the Borrower to make payments hereunder for the account of such Lender or the
Administrative Agent, as the case may be, without deduction or withholding of
United States federal income or similar taxes and (ii) upon the obsolescence of
or after the occurrence of any event requiring a change in, any form or
certificate previously delivered pursuant to this SECTION 2.12(c), copies (in
such numbers as may be from time to time be prescribed by applicable laws or
regulations) of such additional, amended or successor forms, certificates or
statements as may be required under applicable laws or regulations to permit the
Borrower and the Administrative Agent to make payments hereunder for the account
of such Lender or the Administrative Agent, as the case may be, without
deduction or withholding of United States federal income or similar taxes.
(4) In addition, subject to the provisions of the Subordination
Agreement and Article IX hereof, the Borrower agrees to pay any present or
future stamp or documentary taxes or any other excise or property taxes, charges
or similar levies that arise from any payment made hereunder or from the
execution, delivery or registration of, or otherwise with respect to, this
Agreement or any Lender Note or other Transaction Document.
SECTION 2.13 PAYMENTS AND COMPUTATIONS.
(1) The Borrower shall make each payment hereunder, not later than
1:30 p.m. (New York City time) on the day when due by wire transfer in Dollars
and in immediately available funds, without set-off or counterclaim, to the
Administrative Agent at its account maintained at the office of Bank of New
York, New York, New York, ABA No. 021-000-018, to Account No. 890-
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038-6673, Account Name: Greenwich ISS/RED, Attention: Aimee Sevilla,
Reference: AmeriCredit RCCA Facility, with telephone notice (including wire
number) to the Asset Finance Department of the Administrative Agent
(telephone number (212) 325-9075), or such other account as the Administrative
Agent shall designate in writing to the Borrower. Subject to the provisions
of the Subordination Agreement and Article IX hereof, promptly upon receipt
thereof by the Administrative Agent, each payment of principal on the
Borrowings shall be remitted by the Administrative Agent in like funds as
received to each Lender for the account of its Applicable Lending Office PRO
RATA in accordance with SECTION 2.05 or, in the case of payments received in
respect of the Facility Maturity Date or at any time thereafter, PRO RATA
according to the aggregate outstanding principal balance of the Advances owed
to the Lenders. Subject to the provisions of the Subordination Agreement and
Article IX hereof, promptly upon receipt thereof by the Administrative Agent,
each payment of interest on the Borrowings shall be remitted by the
Administrative Agent in like funds as received to each Lender for the account
of its Applicable Lending Office PRO RATA in accordance with the aggregate
amount of unpaid interest owed to each of the Lenders. Subject to the
provisions of the Subordination Agreement and Article IX hereof, promptly
upon receipt thereof by the Administrative Agent, each payment of Facility
Fees, Commitment Fees or other fees shall be remitted by the Administrative
Agent in like funds as received to each Lender entitled thereto for the
account of its Applicable Lending Office, PRO RATA according to the amount
thereof owed to each such Lender. Upon its acceptance of an Assignment and
Assumption from and after the "Transfer Effective Date" specified in such
Assignment and Assumption, the Administrative Agent shall make all payments
hereunder in respect of the interest assigned thereby to the Lender's
assignee thereunder, for the account of its Applicable Lending Office, and
the parties to such Assignment and Assumption shall make all appropriate
adjustments in such payments for periods prior to such effective date
directly between themselves.
(2) Whenever any payment hereunder shall be stated to be due on a
day other than a Business Day, such payment shall be made on the next succeeding
Business Day, and such extension of time shall in such case be included in the
computation of payment of interest or any fee payable hereunder, as the case may
be, PROVIDED, HOWEVER, that, if such extension would cause payment of interest
on or principal of Eurodollar Rate Advances to be made in the next following
month, such payment shall be made on the immediately preceding Business Day.
(3) All computations of fees shall be made by the Administrative
Agent on the basis of a year of 360 days, in each case for the actual number of
days (including the first day but excluding the last day) occurring in the
period for which such fee is payable.
SECTION 2.14 INDEMNIFICATION FOR LOSS. Notwithstanding anything
contained herein to the contrary, (i) if the Borrower shall fail to borrow an
Advance after it has requested such Advance as a Eurodollar Rate Advance or a
Commercial Paper Rate Advance pursuant to SECTION 2.02 or shall fail to Convert
or Continue an Advance after it shall have given notice to do so in which it
shall have requested a Eurodollar Rate Advance or a Commercial Paper Rate
Advance pursuant to SECTION 2.08, (ii) if a Eurodollar Rate Advance shall be
terminated for any reason prior to the last day of the Interest Period
applicable thereto (including by reason of its Conversion), (iii) if a
Commercial Paper Rate Advance shall be terminated for any reason prior to the
last day of any Fixed
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Period applicable thereto (including by reason of the Conversion thereof
pursuant to SECTION 2.07(c)), (iv) if any repayment or prepayment of the
principal amount of a Eurodollar Rate Advance is made for any reason on a
date which is prior to the last day of the Interest Period applicable
thereto, or (v) if any repayment or prepayment of the principal amount of a
Commercial Paper Rate Advance is made for any reason on a date which is prior
to the last day of any Fixed Period applicable thereto, THEN, subject to the
provisions of the Subordination Agreement and Article IX hereof, in any such
case the Borrower agrees to indemnify each affected Lender against, and to
promptly pay, on the later of the date of demand and the earliest date
permitted under the provisions of the Subordination Agreement and Article IX
hereof, directly to such Lender the amount equal to any loss or reasonable
out-of-pocket expense suffered by such Lender as a result of such failure to
borrow, Convert or Continue, or such termination, repayment or prepayment,
including (A) in the case of a Eurodollar Rate Advance, any loss, cost or
expense suffered by such Lender in liquidating or employing deposits acquired
to fund or maintain the funding of such Eurodollar Rate Advance, or
redeploying funds prepaid or repaid, in amounts which correspond to its such
Eurodollar Rate Advance, (B) in the case of a Commercial Paper Rate Advance,
any loss, cost or expense suffered by such Lender by reason of its issuance
of Commercial Paper Notes or its incurrence of other obligations allocated by
such Lender to its funding or the maintenance of its funding of such
Commercial Paper Rate Advance, or redeploying funds prepaid or repaid, in
amounts which correspond to such Commercial Paper Rate Advance, and (C) in
either case any internal processing charge customarily charged by such Lender
in connection therewith. At the election of such Lender, and without
limiting the generality of the foregoing, but without duplication, such
compensation on account of losses may include an amount equal to (A) the
excess of (i) the interest that would have been received from the Borrower
under this Agreement on any amounts to be reemployed during an Interest
Period or Fixed Period, as applicable, or its remaining portion over (ii) in
the case of a Eurodollar Rate Advance, the interest component of the return
that such Lender determines it could have obtained had it placed such amount
on deposit in the interbank eurodollar market selected for a period equal to
the applicable Interest Period or its remaining portion or, (B) in the case
of a Commercial Paper Rate Advance, the aggregate interest cost incurred by
such Lender (inclusive of dealer fees) in respect of Commercial Paper Notes
or other obligations allocated by such Lender to its funding or the maintenance
of its funding of such Commercial Paper Rate Advance through the end of an
applicable Fixed Period. Astatement setting forth in reasonable detail the
calculations of any additional amounts payable pursuant to this Section
submitted by a Lender or the Administrative Agent, as the case may be, to the
Borrower shall be conclusive absent manifest error.
SECTION 2.15 ILLEGALITY. Notwithstanding any other provision of this
Agreement, if any Lender shall notify the Administrative Agent that any
Regulatory Change makes it unlawful, or any central bank or other governmental
authority asserts that it is unlawful, for any Lender or its Applicable Lending
Office to perform its obligations hereunder to make Eurodollar Rate Advances or
to fund or maintain Eurodollar Rate Advances hereunder, then (a) as of the
effective date of such notice the obligation of such Lender to make or to
Continue, or to Convert Advances into, Eurodollar Rate Advances shall be
suspended until such Lender shall notify the Administrative Agent, the Borrower
and the other Lenders that the circumstances causing such suspension no longer
exist and (b) each Eurodollar Rate Advance of such Lender shall be Converted
into a Base Rate Advance either (i) on the last day of such Interest Period if
such Lender may lawfully continue to maintain
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and fund such Advance to the last day of the Interest Period applicable to
such Eurodollar Rate Advance on the effective date of such notice, or (ii) on
the effective date of such notice, if such Lender shall determine that it may
not lawfully continue to maintain and fund such Advance to the end of the
then current Interest Period. Notwithstanding any provision herein to the
contrary, until such affected Lender shall give the rescinding notice
described in clause (a) above, any Advance made by such Lender, whether in
connection with a new Borrowing or the Conversion of an existing Borrowing,
shall be a Base Rate Advance, notwithstanding that each other Advance
comprised by such Borrowing may be a Eurodollar Rate Advance.
SECTION 2.16 OPTION TO FUND. Each Lender has indicated that, if the
Borrower requests a Eurodollar Rate Advance, such Lender may wish to purchase
one or more deposits in order to fund or maintain its funding of its Lending
Percentage of such Eurodollar Rate Advance during the Interest Period with
respect thereto; it being understood that the provisions of this Agreement
relating to each such funding, if any, are included only for the purpose of
determining the rate of interest to be paid on such Eurodollar Rate Advance and
any amounts owing under SECTIONS 2.11 and 2.14. Each Lender shall be entitled
to fund and maintain its funding of all or any part of each Eurodollar Advance
in any manner such Lender sees fit, but all such determination under SECTIONS
2.11 and 2.14 shall be made as if each Lender had actually funded and maintained
its funding of its Lending Percentage of such Eurodollar Advance during the
applicable Interest Period, in each case through the purchase of deposits in an
amount equal to the amount of its Lending Percentage of such Eurodollar Advance
and having a maturity corresponding to such Interest Period.
SECTION 2.17 SHARING OF PAYMENTS, ETC. Subject to the provisions of
the Subordination Agreement and Article IX hereof, if any Lender shall obtain
any payment (whether voluntary or involuntary) on account of the Advances made
by it (other than pursuant to Sections 2.11, 2.12 or 2.14) in excess of its
ratable share of payments on account of the Advances obtained by all the
Lenders, such Lender shall forthwith (i) notify each of the other Lenders of
such receipt and (ii) purchase from the other Lenders for cash such
participation in the Advances made by them as shall be necessary to cause such
purchasing Lender to share the excess payment ratably with each of them;
PROVIDED, HOWEVER, that, if all or any portion of such excess payment is
thereafter recovered from such purchasing Lender, such purchase from each Lender
shall be rescinded and such Lender shall repay to the purchasing Lender the
purchase price to the extent of such recovery together with an amount equal to
such Lender's ratable share (according to the proportion of (i) the amount of
such Lender's required repayment to (ii) the total amount so recovered from the
purchasing Lender) of any interest or other amount paid or payable by the
purchasing Lender in respect of the total amount so recovered. The Borrower
agrees that any Lender so purchasing a participation from another Lender
pursuant to this SECTION 2.17 may, to the fullest extent permitted by law and
the provisions of the Subordination Agreement and Article IX hereof, exercise
all its rights of setoff with respect to such participation as fully as if such
Lender were the direct creditor of the Borrower in the amount of such
participation.
SECTION 2.18 ADMINISTRATIVE AGENT'S RECORDS. The Administrative
Agent's records regarding the amount of each Borrowing, each payment by the
Borrower of principal and
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interest on the Borrowings and other information relating to the Borrowings
shall be presumptively correct absent manifest error.
ARTICLE IIA
GUARANTY
SECTION 2A.01 GUARANTY OF PAYMENT AND PERFORMANCE. Each Contingent
Obligor hereby, jointly and severally, guarantees to the Administrative Agent
(on behalf of the Lenders) the full and punctual payment when due (whether at
maturity, by acceleration or otherwise) of the Advances, and the performance, of
all liabilities, agreements and other obligations of the Borrower to the
Administrative Agent, the Lender Collateral Agent (on behalf of itself and the
Lenders) and to each of the Lenders under the Transaction Documents, whether
direct or indirect, absolute or contingent, due or to become due, secured or
unsecured, now existing or hereafter arising or acquired (collectively, the
"GUARANTEED OBLIGATIONS"). The guaranty provided hereunder is an absolute,
unconditional and irrevocable guaranty of the full and punctual payment and
performance of the Guaranteed Obligations and not of their collectibility only
and is in no way conditioned upon any requirement that the Administrative Agent
or any Lender first attempt to collect any of the Guaranteed Obligations from
the Borrower or resort to any security or other means of obtaining their
payment. Should the Borrower default in the payment or performance of any of
the Guaranteed Obligations, the obligations with respect to the payment or
performance in default of each Contingent Obligor hereunder shall become
immediately due and payable to the Administrative Agent (on behalf of the
Lenders), without demand or notice of any nature, all of which are expressly
waived by each Contingent Obligor. Payments by the Contingent Obligors
hereunder may be required by the Administrative Agent (on behalf of the Lenders)
on any number of occasions.
SECTION 2A.02 CONTINGENT OBLIGOR'S AGREEMENT TO PAY. (a) Each
Contingent Obligor hereby, jointly and severally, as the principal obligor and
not as a guarantor, agrees to pay to the Administrative Agent (on behalf of the
Lenders) the full amount of any Advances and any other amount owing hereunder
that remains outstanding, and to perform all other liabilities, agreements and
other obligations of the Borrower to the Administrative Agent, the Lender
Collateral Agent (on behalf of itself and the Lenders) and to each of the
Lenders under the Transaction Documents, whether direct or indirect, absolute or
contingent, secured or unsecured, now existing or hereafter arising or acquired,
that does not become due hereunder solely pursuant to the operation of the
provisions of the Subordination Agreement and Article IX hereof (collectively,
the "DEFERRED OBLIGATIONS") and agrees to make such payment or render such
performance on the date such Deferred Obligation would have become due but for
the operation of the provisions of the Subordination Agreement and Article IX
hereof. (The Guaranteed Obligations and the Deferred Obligations are referred
to collectively herein as the "CONTINGENT OBLIGATIONS").
(b) Each Contingent Obligor agrees, jointly and severally, as the
principal obligor and not as a guarantor only, to pay to the Administrative
Agent, on demand, all reasonable costs and expenses (including court costs and
reasonable legal expenses) incurred or expended by the Administrative Agent in
connection with enforcement of the obligations of any of the Contingent
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Obligors under this Article IIA and under Sections 2.05(d) and 6.02, together
with interest on amounts recoverable under Sections 2.05(d) and 6.02 and
under the guaranty and primary obligation to pay provided pursuant to this
Article IIA from the time such amounts become due until payment, at the rate
per annum equal to 5% plus the Alternate Base Rate in effect from time to
time; PROVIDED that, if such interest exceeds the maximum amount permitted to
be paid under applicable law, then such interest shall be reduced to such
maximum permitted amount.
SECTION 2A.03. LIMITED GUARANTY. Notwithstanding any other provisions
under this Agreement, the aggregate liability of the Contingent Obligors
hereunder with respect to (a) the Contingent Obligations with respect to the
principal amount of Advances, interest on Advances (other than Negative Carry)
and Facility Fees, (b) the amounts payable by the Contingent Obligors pursuant
to Section 2.05(e)(ii) and (c) the amounts payable by the Contingent Obligors
pursuant to Section 6.02 with respect to the principal amount of Advances,
interest on Advances and Facility Fees shall be limited to (i) the Guaranty
Limit, plus (ii) without limitation as to the amounts thereof, all interest and
other costs and expenses payable by the Contingent Obligors pursuant to SECTION
2A.02(b). The Administrative Agent's, the Lender Collateral Agent's, the RCCA
Agent's or the Lenders' dealings with the Borrower need not be limited to any
particular sum notwithstanding any limitation herein upon the liability of the
Contingent Obligors.
ARTICLE 3
CONDITIONS PRECEDENT
SECTION 3.1 CONDITION PRECEDENT TO THE EFFECTIVENESS OF THIS
AGREEMENT. The following constitute conditions precedent to the effectiveness
of the Commitments of the Lenders and the right of the Borrower to request, and
the obligations of the Lenders to make, Advances under this Agreement:
(1) REPRESENTATIONS AND WARRANTIES. On the Effective Date and
after giving effect to any Borrowings on such date, all representations and
warranties of the Contingent Obligors contained herein or in any Transaction
Document or otherwise made by it in writing pursuant to any of the provisions
hereof or thereof shall be true and correct in all material respects with the
same force and effect as though such representations and warranties had been
made on and as of such date.
(2) NO DEFAULTS. On the Effective Date and after giving effect to
any Borrowings on such date, no Event of Early Termination, Event of Early
Amortization, Default or Event of Default shall have occurred.
(3) NOTES. The Borrower shall have duly executed and delivered,
and each Lender shall have received, a Lender Note in accordance with SECTION
2.01(B).
(4) SECURITY AGREEMENT, RCCA AGREEMENT, ETC. The parties thereto
shall have duly entered into the Security Agreement, the Subordination Agreement
and the RCCA Agreement, each in form and substance satisfactory to the
Administrative Agent and each Lender; the
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Administrative Agent shall have received an executed copy thereof; and each
Lender shall have received a true and correct copy thereof.
(5) FINANCING STATEMENTS, ETC. The Administrative Agent shall have
received evidence reasonably satisfactory to it that proper financing statements
duly executed by the Borrower, describing the Borrower Collateral and naming the
Borrower as debtor and the Lender Collateral Agent, on behalf of the Secured
Parties, as secured party, or other similar instruments or documents, as may be
necessary or, in the opinion of the Administrative Agent, the Lender Collateral
Agent, or any Lender, desirable under the Uniform Commercial Code of all
appropriate jurisdictions or any comparable law to perfect the security interest
granted under the Security Agreement in the Borrower Collateral, have been
delivered and, if appropriate, have been duly filed or recorded and that all
filing fees, taxes or other amounts required to be paid in connection therewith
have been paid. The Administrative Agent shall have received evidence
reasonably satisfactory to it that proper financing statements duly executed by
the Borrower, describing the RCCA Collateral and naming the Borrower as debtor
and the RCCA Agent, as secured party, or other similar instruments or documents,
as may be necessary or, in the opinion of the Administrative Agent or any
Lender, desirable under the Uniform Commercial Code of all appropriate
jurisdictions or any comparable law to perfect the security interest granted
under the RCCA Agreement in the RCCA Collateral, have been delivered and, if
appropriate, have been duly filed or recorded and that all filing fees, taxes or
other amounts required to be paid in connection therewith have been paid. The
Certificate Pledge Agreement shall provide that Bank One is holding the
certificates of beneficial interest in the Spread Account Depositor as agent of
the Lender Collateral Agent in order to perfect by possession the security
interest therein granted to the Lender Collateral Agent pursuant to the Security
Agreement.
(6) LIEN SEARCH REPORTS. The Administrative Agent shall have
received certified copies of requests for information or copies (or a similar
search report certified by a party acceptable to the Administrative Agent),
dated a date reasonably near to the Effective Date, listing all effective
financing statements which name the Borrower or the Spread Account Depositor (in
either case, under its present name and any previous name) as debtor and which
are filed in the jurisdictions in which the statements referred to in SECTION
3.01(e) were or are to be filed, together with copies of such financing
statements (none of which, other than financing statements naming the collateral
agent specified in the Spread Account Agreement for the benefit of the
applicable Designated Series Insurers and the related secured parties or
evidencing Permitted Liens, shall cover any of the Borrower Collateral or the
RCCA Collateral).
(7) CREDIT SUPPORT AGREEMENT. Credit Suisse First Boston, New York
Branch, as agent, shall have entered into a Credit Support Agreement on behalf
of the Conduit Lenders, and the Liquidity Lenders with respect to the Advances
proposed to be made hereunder and each company providing credit support
thereunder (each a "CREDIT SUPPORT PROVIDER") shall have acknowledged that all
conditions precedent to its provision of credit support under such agreement
shall have been satisfied.
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(8) OTHER TRANSACTION DOCUMENTS. Each other Transaction Document
not otherwise referred to in this SECTION 3.01 shall have been duly executed and
delivered by the parties thereto; each Lender shall have received an executed
copy of the Fee Letter and the Administrative Agent shall have received a copy
of each such other Transaction Document.
(9) EXPENSES. The Borrower shall have paid all reasonable and
appropriately invoiced costs and expenses of the Administrative Agent, the RCCA
Agent, the Credit Support Providers and the Lender Collateral Agent payable by
the Borrower in connection with the transactions contemplated hereby including
without limitation all costs and expenses associated with the negotiation and
execution of the Credit Support Agreement; PROVIDED HOWEVER the aggregate amount
of fees of counsel to the Administrative Agent shall not exceed the amount set
forth in the Fee Letter.
(10) OTHER DOCUMENTS. The Administrative Agent and each Lender
shall have received the following, each dated as of the Effective Date or as
otherwise permitted below:
(1) A certificate of the Secretary of State of Nevada dated
on or within 20 Business Days prior to the Effective Date as to the legal
existence and good standing of the Borrower, together with a copy of the
Borrower's certificate of incorporation, certified as a true and correct
copy by the secretary of the Borrower, each;
(2) A certificate of the Secretary of State of the
applicable jurisdiction of incorporation of each Contingent Obligor as to
the legal existence and good standing of such Contingent Obligor, together
with a copy of such Contingent Obligor's certificate of incorporation,
certified as a true and correct copy by such Secretary of State, each dated
on or within 20 Business Days prior to the Effective Date;
(3) A certificate of the Secretary of State of Delaware as
to the legal existence and good standing of the Spread Account Depositor,
together with a copy of the Spread Account Depositor's trust certificate,
certified as a true and correct copy by such Secretary of State, each dated
on or within 10 Business Days prior to the Effective Date;
(4) A certificate of an Authorized Officer of the Borrower,
certifying (A) the names and true signatures of the Authorized Officers of
the Borrower, (B) that the copy of the Bylaws of the Borrower attached
thereto is a complete and correct copy and that such Bylaws have not been
amended, modified or supplemented and are in full force and effect, and (C)
that the copy of the resolutions of the Board of Directors of the Borrower
approving the transactions contemplated by the Transaction Documents is a
complete and correct copy and that such resolutions are in full force and
effect and are the only resolutions relating to the matters contemplated by
the Transaction Documents;
(5) A certificate of an Authorized Officer of the Borrower,
certifying that (i) the copies of the unaudited balance sheet of the
Borrower for its fiscal year ended June 30, 1999, and the related
statements of income, shareholders' equity and cash flows for such
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fiscal year attached to such certificate are complete, true and correct
and have been prepared in accordance with GAAP consistently applied and
present fairly the financial position of the Borrower as of such date
and the results of its operations for such period, and (ii) there have
been no changes since the end of the fiscal year ended June 30, 1999 in
the assets, liabilities, financial condition, operations, business or
prospects of the Borrower, other than changes in the ordinary course of
business the effect of which have not, in the aggregate, been materially
adverse to the Borrower;
(6) A certificate of an Authorized Officer of each
Contingent Obligor, certifying (A) the names and true signatures of the
Authorized Officers of such Contingent Obligor, (B) that the copy of the
Bylaws of such Contingent Obligor attached thereto is a complete and
correct copy and that such Bylaws have not been amended, modified or
supplemented and are in full force and effect, and (C) that the copy of the
resolutions of the Board of Directors of such Contingent Obligor approving
the transactions contemplated by the Transaction Documents is a complete
and correct copy and that such resolutions are in full force and effect and
are the only resolutions relating to the matters contemplated by the
Transaction Documents;
(7) A certificate of an Authorized Officer of the Spread
Account Depositor, certifying (A) the names and true signatures of the
Authorized Officers of the Spread Account Depositor and (B) that the copy
of the trust agreement of the Spread Account Depositor attached thereto is
a complete and correct copy and that such trust agreement has not been
amended, modified or supplemented and is in full force and effect;
(8) (A) A certificate from an Authorized Officer of ACC
certifying that (i) the copies of the audited consolidated balance sheet of
ACC for its fiscal year ended June 30, 1999, and the related consolidated
statements of income, shareholders' equity and cash flow for such fiscal
year attached to such certificate are complete, true and correct and have
been prepared in accordance with GAAP consistently applied and present
fairly, on a consolidated basis, the financial position of ACC and its
Subsidiaries (including the Borrower) as of such date and the results of
their operations for such period, and (ii) there have been no changes since
the end of the fiscal year ended on June 30, 1999 in the assets,
liabilities, financial condition, operations, business or prospects of ACC
or its Subsidiaries, other than changes in the ordinary course of business
the effect of which have not, in the aggregate, been materially adverse to
ACC and its Subsidiaries, together with (B) the Accountant's Report and
Procedures Report for the fiscal year ended June 30, 1999, each of which
shall be addressed to the Administrative Agent or accompanied by a letter
permitting the Administrative Agent to rely thereon;
(9) Certificates of the Secretary of State of Texas and,
except in the case of ACC, of the Secretary of State of its jurisdiction of
incorporation as to the qualification of the Borrower and each of the
Contingent Obligors to do business, and the good standing thereof, in such
jurisdiction and, except in the case of the Borrower, Texas, each dated on
or within 20 Business Days prior to the Closing Date;
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(10) Certificates of Authorized Officers of the Borrower and
the Contingent Obligors to the effect that the conditions set forth in
SECTIONS 3.01(a) and 3.01(b) have been satisfied;
(11) A certificate from each party (other than the Borrower
and the Lenders), in form and substance satisfactory to the Administrative
Agent, covering its due execution and delivery of the Transaction Documents
to which it is a party and the other documents executed by it in connection
herewith and therewith and the incumbency and specimen signatures of its
officers executing such documents;
(12) Opinions of Dewey Ballantine, Richards Layton & Finger
and Chris Choate, Esq., counsel for the Borrower, the Spread Account
Depositor and the Contingent Obligors, dated the Closing Date and addressed
to, and reasonably satisfactory in form and substance to, the
Administrative Agent, the Lender Collateral Agent, each Lender and each
Credit Support Provider;
(13) An irrevocable letter of direction from the Borrower and
Spread Account Depositor to each Senior Lien Holder (as defined in the
Subordination Agreement) instructing such Senior Lien Holder to pay all
amounts otherwise payable to the Borrower or Spread Account Depositor to
the Lender Collateral Agent, identifying the Lender Collateral Agent as a
third party beneficiary with the right to enforce such instructions, and
acknowledged and agreed to by such Senior Lien Holder; and
(14) Such other documents, instruments, opinions and
certificates and completion of such other matters, as the Administrative
Agent may reasonably deem necessary or desirable.
SECTION 3.2 CONDITIONS PRECEDENT TO BORROWINGS, CONVERSIONS AND
CONTINUATIONS.
(1) The obligation of each Lender to Convert and Advance or
Continue any Advance shall be subject to the condition precedent that on the
date of such Conversion or Continuation no Event of Default has occurred and is
continuing.
(2) The obligation of each Lender to make any Advance as a part of
any Borrowing (other than as a result of a Conversion or Continuation) shall be
subject to the further conditions precedent that:
(1) The Administrative Agent shall have timely received a
properly completed Notice of Borrowing, executed by an Authorized Officer
of the Borrower;
(2) The Administrative Agent shall have received an
Officer's Certificate of ACFS and ACC stating that on the Borrowing Date
and after giving effect to the Borrowing on that date, all representations
and warranties of the Contingent Obligors
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contained herein or in any Transaction Document or otherwise made by
them in writing pursuant to any of the provisions hereof or thereof are
true and correct in all material respects with the same force and effect
as though such representations and warranties had been made on and as of
such date, except to the extent that such representations and warranties
specifically relate to an earlier date, in which case such
representations and warranties were true and correct on and as of such
date;
(3) The Administrative Agent shall have received an
Officer's Certificate of ACFS and ACC stating that on the Borrowing Date
and after giving effect to the Borrowing on that date, no Event of Early
Termination, Event of Early Amortization, condition, event or act which
with notice or lapse of time or both will become an Event of Early
Termination, Event of Early Amortization, Default or Event of Default has
occurred and is continuing and that there has been no change to the
underwriting or servicing standards of ACFS which could cause the related
Series to perform materially more poorly (without giving effect to the
credit enhancement for such Series) or to have a materially longer term
than Series 1999-B;
(4) The Administrative Agent shall have received an
Officer's Certificate of ACFS and ACC stating that the RCCA Deposit
proposed to be funded with the proceeds of such Borrowing relates to a
Designated Series.
(5) On or before the date of such Borrowing, the
Administrative Agent shall have received satisfactory evidence of the
establishment and continued existence of each of the Spread Account and the
RCCA relating to the relevant Designated Series and the Administrative
Agent shall have received an Officer's Certificate of the Borrower stating
that the aggregate amount the Borrower or the Spread Account Depositor has
deposited or will cause to be deposited in cash before 12:00 noon on such
date into such Spread Account is not less than an amount (the "REQUIRED
SPREAD ACCOUNT DEPOSIT") equal to the product of the initial aggregate
principal amount of the securities constituting the relevant Designated
Series times the greater of (i) the Minimum Spread Account Percentage and
(ii) the percentage necessary to cause the Loss Coverage Ratio, after
giving effect to the Initial Spread Account Deposit, to be equal to or
greater than the Required Loss Coverage Ratio.
(6) The Administrative Agent shall have received an
Officer's Certificate of ACFS and ACC stating (a) that the Lender
Collateral Agent has a perfected security interest in the Borrower
Collateral, and there shall be no other security interests or Liens on the
Borrower Collateral other than Permitted Liens and (b) that the RCCA Agent
has a perfected security interest in the RCCA Collateral, including all
proceeds (to the extent payable to the Borrower) of the RCCA into which the
proceeds of such Borrowing shall be deposited, and there shall be no other
security interests or Liens on the RCCA Collateral, including such RCCA
proceeds, other than Permitted Liens;
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(7) The Designated Series shall be insured by FSA and FSA's
credit risk shall have been rated on a stand-alone basis at least Baa3/BBB-
by Moody's and S&P, respectively;
(8) The Administrative Agent shall have received an
Officer's Certificate of the Borrower stating that ACFS or another Person
approved in writing by the Administrative Agent is the servicer for the
Designated Series;
(9) ACFS shall have delivered a certificate to the
Administrative Agent certifying that as of the relevant Borrowing Date,
each of the relevant Series Transaction Documents is in full force and
effect, no party to any such document is in default of its obligations
thereunder, and all of the representations and warranties of the Borrower
set forth in such Series Transaction Documents are true and correct;
(10) No Credit Support Default or Credit Support Ratings
Event shall have occurred and no Credit Support Provider shall have
contested the Credit Support Agreement, unless, in any such case, the
related Credit Support Provider shall have been replaced;
(11) The Administrative Agent shall have received an
Officer's Certificate of ACFS and ACC stating that there shall have been no
changes in the assets, liabilities, financial condition, operations,
business or prospects of the Borrower or any of the Contingent Obligors
which may have a Material Adverse Effect, including without limitation the
performance of the receivables owned or serviced by any such party;
(12) At least six Business Days prior to the date a Series
with respect to which an RCCA Deposit will be funded through Borrowings
under this Agreement is priced, ACFS and ACC shall provide to the
Administrative Agent an Officer's Certificate certifying each of the
following:
(A) The information with respect to such Series described
under "Collateral Characteristics" on Annex I; and
(B) the most recent copy of the rating agency presentation
relating to such Series.
(13) On the date a Series with respect to which an RCCA
Deposit will be funded through Borrowings under this Agreement is priced,
ACFS and ACC shall provide to the Administrative Agent an Officer's
Certificate certifying each of the following:
(A) The relevant Series Transaction Documents are
substantially in the form of those documents listed on Exhibit F
(except that (I) such Series Transaction Documents shall provide that
the Facility Fees with respect to the Borrowings used to fund the
related RCCA, up to an amount equal to the Facility Fee Rate per annum
on the outstanding related Borrowing, shall be payable pursuant
thereto with the
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same priority as the payment of the premiums due to the Designated
Series Insurer and (II) the "Accelerated Payment Termination Date"
may be as set forth in Section 5.02(k)(i)(C)), the differences
between the terms of such Series Transaction Document and the form
of those documents listed on Exhibit F hereto shall not result in a
Material Adverse Effect, and the copy of the preliminary offering
document attached to such Officer's Certificate was the preliminary
offering document used in connection with such pricing and is a
true, correct and complete copy of such document;
(B) The interest rate(s) on the Series, including any
interest rate cap rate included or effectively included in the Series
Transaction Documents;
(C) Attached to such Officer's Certificate are (i) a draft
of the supplement to the Spread Account Agreement to be included in
the Series Transaction Documents and (ii) the most recent copy of the
rating agency presentation relating to such Series; and
(D) The "Accelerated Payment Termination Date" (as defined
in the Spread Account Agreement) with respect to such Series shall not
occur later than 400 days from the date such Series shall have been
issued,
(14) At least two Business Days prior to the funding of an
RCCA Deposit of any Series through Borrowings under this Agreement, ACFS
and ACC shall provide to the Administrative Agent an Officer's Certificate
certifying each of the following:
(A) The relevant Series Transaction Documents are
substantially in the form of those documents listed on Exhibit F
(except that (I) such Series Transaction Documents shall provide that
the Facility Fees with respect to the Borrowings used to fund the
related RCCA, up to an amount equal to the Facility Fee Rate per annum
on the outstanding related Borrowing, shall be payable pursuant
thereto with the same priority as the payment of the premiums due to
the Designated Series Insurer and (II) the "Accelerated Payment
Termination Date" may be as set forth in Section 5.02(k)(i)(C)) and
the differences between the terms of such Series Transaction Document
and the form of those documents listed on Exhibit F hereto shall not
result in a Material Adverse Effect; and
(B) Attached to such Officer's Certificate is a draft of the
letter (which shall be so attached), addressed to the Administrative
Agent on behalf of the Lenders and Assignees, from a firm of
nationally recognized independent certified public accountants which
has performed diligence on the loan documentation relating to such
Series for the underwriters of such Series, stating with at least 95%
confidence that, based on their review of a representative sample of
the relevant loan files, such loan documentation contains all
necessary promissory notes and agreements evidencing such loans.
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(15) On the date an RCCA Deposit is funded through Borrowings
under this Agreement, ACFS and ACC shall provide to the Administrative
Agent an Officer's Certificate certifying each of the following:
(A) The relevant Series Transaction Documents are
substantially in the form of those documents listed on as Exhibit F
(except that (I) such Series Transaction Documents shall provide that
the Facility Fees with respect to the Borrowings used to fund the
related RCCA, up to an amount equal to the Facility Fee Rate per annum
on the outstanding related Borrowing, shall be payable pursuant
thereto with the same priority as the payment of the premiums due to
the Designated Series Insurer and (II) the "Accelerated Payment
Termination Date" may be as set forth in Section 5.02(k)(i)(C)), the
differences between the terms of such Series Transaction Document and
the form of those documents listed on Exhibit F hereto shall not
result in a Material Adverse Effect.
(B) Attached to such Officer's Certificate are (i) an
executed original of the letter (which shall be so attached) referred
to in paragraph (xiii)(B) above and (ii) copies of the legal opinions
delivered in connection with the closing of such Series together with
letters permitting the Administrative Agent on behalf of the Lenders
and Assignees to rely on such opinions.
(16) The Administrative Agent shall have received an
irrevocable letter of direction from the Borrower and the Spread Account
Depositor to the trustee party to the related supplement to the Spread
Account Agreement instructing such trustee to pay all amounts otherwise
payable to the Borrower or the Spread Account Depositor to the Lender
Collateral Agent and identifying the Lender Collateral Agent as a third
party beneficiary with the right to enforce such instructions, which letter
shall have been acknowledged and agreed to by such trustee.
(17) The Administrative Agent shall have received lien search
reports confirming the information set forth in the documents previously
delivered pursuant to Section 3.01(f).
(18) The supplements to the Spread Account Agreement with
respect to Series 1996-D, Series 1997-A and Series 1997-B shall have been
amended so that the Insurance Agreements Events of Default relating to
cumulative defaults and cumulative net losses are no more restrictive than
the related Trigger Events.
(19) The Administrative Agent shall have received such other
documents, instruments, opinions, certificates as the Administrative Agent
may reasonably deem necessary or desirable.
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SECTION 3.3 SPECIAL CONDITIONS TO ADVANCES UNDER LIQUIDITY
COMMITMENTS. In addition to the conditions set forth in SECTIONS 3.01 and 3.02
above, it shall be a condition precedent to the obligation of any Liquidity
Lender to make an Advance pursuant to SECTION 2.02(e) or 2.02(g) in respect of a
Conduit Lender that no Insolvency Event shall have occurred with respect to such
Conduit Lender.
SECTION 3.4 SPECIAL WAIVER OF CONDITIONS REGARDING INITIAL
BORROWING. In connection with the Borrowing to fund the RCCA for Series 1999-D,
the Lenders hereby waive the time periods for delivery of the documents required
to be delivered pursuant to Sections 3.02(b)(xii), (xiii), and (xiv).
ARTICLE 4
REPRESENTATIONS AND WARRANTIES
SECTION 4.1 REPRESENTATIONS AND WARRANTIES WITH RESPECT TO THE
BORROWER. Each Contingent Obligor represents and warrants as follows on the
date of this Agreement, the Effective Date and the date that any Advance is
made, Continued or Converted, in each case, with reference to the facts and
circumstances then existing:
(1) ORGANIZATION AND GOOD STANDING. The Borrower has been duly
organized and is validly existing as a corporation under the laws of the State
of Nevada, with power and authority to own its properties and to conduct its
business as such properties are currently owned and such business is currently
conducted.
(2) DUE QUALIFICATION. The Borrower is duly qualified to do
business as a foreign entity in good standing, and has obtained all necessary
licenses and approvals, in all jurisdictions in which the ownership or lease of
its properties or the conduct of its business requires such qualification.
(1)
(3) POWER AND AUTHORITY. The Borrower has the power and authority
to execute and deliver this Agreement and the other Transaction Documents to
which it is a party and to carry out its terms and their terms, respectively;
the Borrower has full power and authority to grant to the Lender Collateral
Agent, for the benefit of the Secured Parties, a perfected security interest in
the Borrower Collateral and has duly authorized such grant by all necessary
corporate action; the Borrower has full power and authority to grant to the RCCA
Agent a perfected security interest in the RCCA Collateral and has duly
authorized such grant by all necessary corporate action; and the execution,
delivery and performance of this Agreement and the other Transaction Documents
to which it is a party have been duly authorized by the Borrower by all
necessary corporate action.
(4) SECURITY INTEREST; BINDING OBLIGATIONS. This Agreement and the
Transaction Documents to which it is a party have been duly executed and
delivered and create a valid perfected security interest in the Borrower
Collateral in favor of the Lender Collateral Agent, on behalf of the Secured
Parties, enforceable against the Borrower and creditors of and purchasers from
the
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Borrower; the RCCA Agreement creates a valid perfected security interest in
the RCCA Collateral in favor of the RCCA Agent enforceable against the
Borrower and creditors of and purchasers from the Borrower; and this
Agreement and the other Transaction Documents to which it is a party
constitute legal, valid and binding obligations of the Borrower enforceable
in accordance with their respective terms, except as enforceability may be
limited by bankruptcy, insolvency, reorganization or other similar laws
affecting the enforcement of creditors' rights generally and by equitable
limitations on the availability of specific remedies, regardless of whether
such enforceability is considered in a proceeding in equity or at law.
(5) NO VIOLATION. The consummation of the transactions
contemplated by this Agreement and the other Transaction Documents to which
the Borrower is a party, and the fulfillment of the terms of this Agreement
and the other Transaction Documents to which the Borrower is a party, shall
not conflict with, result in any breach of any of the terms and provisions
of, or constitute (with or without notice or lapse of time) a default under
any indenture, agreement, mortgage, deed of trust or other instrument to
which the Borrower is a party or by which the Borrower is bound or any of the
Borrower's properties are subject, or result in the creation or imposition of
any Lien upon any of the Borrower's properties pursuant to the terms of any
such indenture, agreement, mortgage, deed of trust or other instrument, other
than this Agreement, or violate any law, order, rule or regulation applicable
to the Borrower of any Governmental Authority having jurisdiction over the
Borrower or any of the Borrower's properties, or in any way adversely affect
the Borrower's ability to perform the Borrower's obligations under this
Agreement or the other Transaction Documents to which the Borrower is a party.
(6) NO PROCEEDINGS. There are no proceedings or investigations
pending or, to such Contingent Obligor's knowledge, threatened against the
Borrower, before any court or other Governmental Authority having
jurisdiction over the Borrower or its properties (A) asserting the invalidity
of this Agreement or any of the other Transaction Documents, (B) seeking to
prevent the consummation of any of the transactions contemplated by this
Agreement or any of the other Transaction Documents, (C) seeking any
determination or ruling that might materially and adversely affect the
performance by the Borrower of its obligations under, or the validity or
enforceability of, this Agreement or any of the other Transaction Documents,
(D) involving the Borrower, the Spread Account Depositor, the Spread Accounts
for Designated Series, other Borrower Collateral, the RCCAs or other RCCA
Collateral, or (E) that could have a Material Adverse Effect.
(7) NO CONSENTS. The Borrower is not required to obtain the
consent of any other Person which has not been obtained, or any consent,
license, approval or authorization of, or registration or declaration with,
any Governmental Authority in connection with the execution, delivery,
performance, validity or enforceability of this Agreement or the other
Transaction Documents to which it is a party.
(8) USE OF PROCEEDS. All proceeds of any Borrowing shall be
used to fund an RCCA. No part of the proceeds of the Borrowings will be
used, directly or indirectly, for a purpose which violates any law, rule or
regulation of any Governmental Authority, including the provisions of
Regulations T, U or X of the Board of Governors of the Federal Reserve
System, as amended.
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(9) CHIEF EXECUTIVE OFFICE. The chief executive office of the
Borrower is located at 639 Isbell Road, Suite 390, Reno, Nevada 89509.
(10) SOLVENCY. The Borrower is solvent and will not become
insolvent after giving effect to the transactions contemplated by this
Agreement and the Transaction Documents. The Borrower, after giving effect
to the transactions contemplated by this Agreement and the other Transaction
Documents, will have adequate funds to conduct its business in the
foreseeable future.
(11) COMPLIANCE WITH LAWS. The Borrower has complied and will
comply in all material respects with all applicable laws, rules, regulations,
judgments, agreements, decrees and orders with respect to its business and
properties, each Designated Series, each RCCA, all RCCA Collateral and all
Borrower Collateral.
(12) TAXES. The Borrower has filed on a timely basis all tax
returns (including, without limitation, foreign, federal, state, local and
otherwise) required to be filed, is not liable for taxes payable by any other
Person and has paid or made adequate provisions for the payment of all taxes,
assessments and other governmental charges due from the Borrower. No tax
lien or similar adverse claim has been filed, and no claim is being asserted,
with respect to any such tax, assessment or other governmental charge. Any
taxes, fees and other governmental charges payable by the Borrower in
connection with the execution and delivery of this Agreement and the other
Transaction Documents and the transactions contemplated hereby or thereby
have been paid or shall have been paid if and when due at or prior to the
Effective Date and each Borrowing Date.
(13) NO LIENS, ETC. The Borrower Collateral is and will be owned
by the Borrower free and clear of any Lien or restrictions on transferability
(other than Permitted Liens) and the Borrower has the full right, corporate
power and lawful authority to assign, transfer and pledge the same and
interests therein, and upon the making of each Advance, the RCCA Agent will
have acquired a perfected and valid security interest in the related RCCA
Collateral, free and clear of any Lien or restrictions on transferability.
No effective financing statement or other instrument similar in effect
covering all or any part of the Borrower Collateral or the RCCA Collateral is
on file in any recording office, except such as may have been filed in favor
of the Lender Collateral Agent pursuant to the Security Agreement, such as
may have been filed in favor of the RCCA Agent pursuant to the RCCA Agreement
or such as may have been filed in favor of the collateral agent specifie