RECEIVABLES FINANCING AGREEMENT
dated as of March 31, 1999
among
AMERICREDIT WAREHOUSE TRUST,
as Borrower
AMERICREDIT FINANCIAL SERVICES, INC.,
individually and as Servicer and Custodian,
AMERICREDIT FUNDING CORP.,
AMERICREDIT CORPORATION OF CALIFORNIA,
THE LENDERS PARTIES HERETO,
CREDIT SUISSE FIRST BOSTON, NEW YORK BRANCH,
as Agent,
and
BANK ONE, N.A.,
as Backup Servicer and Collateral Agent
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RECEIVABLES FINANCING AGREEMENT
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THIS RECEIVABLES FINANCING AGREEMENT is made and entered into as of March
31, 1999, among AMERICREDIT WAREHOUSE TRUST, a Delaware business trust (the
"Borrower"), AMERICREDIT FINANCIAL SERVICES, INC., a Delaware corporation,
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individually ("AFS") and as initial Servicer and Custodian, AMERICREDIT FUNDING
---
CORP., a Delaware corporation ("AFC"), AMERICREDIT CORPORATION OF CALIFORNIA, a
---
California corporation ("ACC"), each NONCOMMITTED LENDER (as hereinafter
---
defined) FROM TIME TO TIME PARTY HERETO, each COMMITTED LENDER (as hereinafter
defined) FROM TIME TO TIME PARTY HERETO, CREDIT SUISSE FIRST BOSTON, NEW YORK
BRANCH ("CSFB"), as agent (the "Agent") for the Lenders (as hereinafter
---- -----
defined), and BANK ONE, N.A., a national banking association as Backup Servicer
and Collateral Agent.
BACKGROUND
1. The Borrower desires that the Lenders extend financing to the Borrower
on the terms and conditions set forth herein.
2. The Lenders are willing to provide such financing on the terms and
conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual agreements
herein contained, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1 Defined Terms. As used in this Agreement, the following terms
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have the following meanings:
"ACC" has the meaning set forth in the Preamble.
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"Accountants' Report" has the meaning set forth in Section 8.11(a).
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"Accrued Expenses" means, on any day, the aggregate of all Yield, Usage
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Fee, Backup Servicer Fee and Servicing Fee accrued and unpaid on such day.
"Adjusted Commitment Percentage" means, for a Committed Lender with respect
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to a specific Noncommitted Lender, the Commitment of such Committed Lender as a
percentage of the Maximum Purchase Amount of such Noncommitted Lender.
"Advance" means any amount disbursed by any Lender to the Borrower under
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this
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Agreement.
"Advance Date" means the date any Advance is made under Section 2.3.
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"Advance Request" has the meaning set forth in Section 2.2.
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"Adverse Claim" means any claim of ownership or any Lien, title retention,
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trust or other charge or encumbrance, or other type of preferential arrangement
having the effect or purpose of creating a Lien, other than the security
interest created under this Agreement.
"AFC" has the meaning set forth in the Preamble.
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"Affected Person" has the meaning set forth in Section 6.1(a).
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"Affiliate" of any Person means any other Person that directly or
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indirectly controls, is controlled by or is under common control with such
Person (excluding any trustee under, or any committee with responsibility for
administering, any employee benefit plan). A Person shall be deemed to be
"controlled by" any other Person if such other Person controls such Person
within the meaning of Section 15 of the Securities Act of 1933, as amended, or
Section 20 of the Exchange Act.
"AFS" has the meaning set forth in the Preamble.
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"Agent" has the meaning set forth in the Preamble.
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"Agent's Account" has the meaning set forth in Section 5.1.
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"Aggregate Outstanding Principal Balance" means, with respect to any group
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of Receivables as of any day, the sum of the outstanding Principal Balances of
all such Receivables as at the close of business on the immediately preceding
day.
"Agreement" means this Receivables Financing Agreement (including the Fee
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Letter and the Joinder Supplements hereto), as it may be amended, supplemented
or otherwise modified from time to time.
"Allocations" has the meaning set forth in Section 3.3(a).
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"Alpine Base Rate" means a fluctuating rate per annum as shall be in effect
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from time to time, which rate shall be at all times equal to the highest of:
(a) the rate of interest announced publicly by the Alpine
Funding Agent in New York, New York, from time to time
as the Alpine Funding Agent's base commercial lending
rate;
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(b) 1/2 of one percent above the latest three-week moving
average of secondary market morning offering rates in
the United States for three-month certificates of
deposit of major United States money market banks, such
three-week moving average being determined weekly on
each Monday (or, if such day is not a business day, on
the next succeeding business day) for the three-week
period ending on the previous Friday by the Alpine
Funding Agent on the basis of such rates reported by
certificate of deposit dealers to and published by the
Federal Reserve Bank of New York or, if such
publication shall be suspended or terminated, on the
basis of quotations for such rates received by the
Alpine Funding Agent from three New York, New York
certificate of deposit dealers of recognized standing
selected by the Alpine Funding Agent, in either case
adjusted to the nearest 1/4 of one percent or, if there
is no nearest 1/4 of one percent, to the next higher
1/4 of one percent; and
(c) 1/2 of one percent above the Alpine Federal Funds Rate.
"Alpine Federal Funds Rate" means, for any period, a fluctuating rate per
-------------------------
annum equal for each day during such period to the weighted average of the rates
on overnight federal funds transactions with members of the Federal Reserve
System arranged by federal funds brokers, as published for such day (or, if such
day is not a Business Day, for the next preceding Business Day) by the Federal
Reserve Bank of New York, or, if such rate is not so published for any day which
is a Business Day, the average of the quotations for such day on such
transactions received by the Alpine Funding Agent from three federal funds
brokers of recognized standing selected by it.
"Alpine LIBOR Rate" means, for any Accrual Period, a rate per annum equal
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to the rate for deposits in Dollars for a term equal to such Accrual Period
(commencing on the first day of such Fixed Period) which appears on Telerate
Page 3750 as of 11:00 A.M. (London time) on the second Business Day prior to the
commencement of such Accrual Period. If such rate does not appear on Telerate
Page 3750, a rate per annum at which deposits in Dollars are offered by the
principal office of Credit Suisse First Boston in London, England to prime banks
in the London interbank market at 11:00 A.M. (London time) two Business Days
before the first day of such Accrual Period for delivery on such first day and
for a period equal to such Accrual Period.
"AmeriCredit Corp." means AmeriCredit Corp., a Texas corporation.
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"AmeriCredit Score" means, with respect to a Receivable, the credit score
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for the related Obligor, determined in accordance with the Servicing Procedures
and Credit Manual (as in effect from time to time).
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"Amount Financed" means, with respect to a Receivable, the aggregate amount
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of credit extended under such Receivable to pay, or to refinance the purchase
price of the Financed Vehicle and related costs, including amounts advanced in
respect of accessories, insurance premiums (subject to Section 8.4(c)), service
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and warranty contracts, other items customarily financed as part of retail
automobile installment sale contracts or promissory notes, and related costs.
"Annual Percentage Rate" or "APR" means, with respect to a Receivable, the
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rate per annum of finance charges stated in such Receivable as the "annual
percentage rate" (within the meaning of the Federal Truth-in-Lending Act). If,
after the applicable Purchase Date, the rate per annum with respect to a
Receivable as of such Purchase Date is reduced as a result of (a) an insolvency
proceeding involving the relevant Obligor or (b) pursuant to the Soldiers' and
Sailors' Civil Relief Act of 1940, the "Annual Percentage Rate" or "APR" shall
refer to such reduced rate.
"Available Purchase Amount" of a Noncommitted Lender means the aggregate of
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the unutilized Commitments of the Committed Lenders with respect to such
Noncommitted Lender.
"Average Servicing Portfolio" means as of any date, the average of the
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Servicing Portfolio for the six preceding Collection Periods.
"Backup Servicer" means Bank One, N.A. solely in its capacity as Backup
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Servicer, together with its permitted successors and assigns in such capacity.
"Backup Servicer Fee" means, for any Distribution Date, the amount payable
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to each of the Backup Servicer and Collateral Agent as its regular fee on such
Distribution Date pursuant to the Backup Servicer/Collateral Agent Fee Letter.
"Backup Servicer/Collateral Agent Fee Letter" means (a) that certain
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schedule of fees of Bank One, N.A., acknowledged by AFS and the Borrower, and
consented to by the Agent, as the same may be amended, supplemented or otherwise
modified by the parties thereto with the consent of the Agent and (b) any letter
agreement(s) or schedule of fees entered into by AFS and the Borrower, with the
consent of the Agent, with a substitute Backup Servicer and/or Collateral Agent
in replacement of the schedule of fees referred to in clause (a) above relating
to fees payable to such substitute Backup Servicer and/or Collateral Agent, as
the case may be.
"Backup Servicing/Collateral Agent Fee Rate" has the meaning set forth in
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the Backup Servicer/Collateral Agent Fee Letter.
"Bank Rate" for any Advance means a rate per annum equal to 1.25% per annum
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above the Eurodollar Rate for each Advance or portion thereof; provided,
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however, that
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in the case of
(a) any Fixed Period on or after the first day on which a Committed
Lender shall have notified the Agent that the introduction of or any
change in or in the interpretation of any law or regulation makes it
unlawful, or any central bank or other governmental authority asserts
that it is unlawful, for such Committed Lender to fund such Advance at
the Bank Rate set forth above (and such Committed Lender shall not have
subsequently notified the Agent that such circumstances no longer
exist),
(b) any Fixed Period of one to (and including) 29 days, in the event
the Eurodollar Rate is not reasonably available to the Agent for such a
Fixed Period,
(c) any Fixed Period as to which the related Advance will not be
funded by issuance of commercial paper, as determined by the Agent (on
behalf of a Noncommitted Lender) later than 12:00 noon (New York City
time) on the second Business Day preceding the first day of such Fixed
Period, or
(d) any Fixed Period for an Advance the principal amount of which
allocated to the Committed Lenders in the aggregate is less than
$1,000,000,
the "Bank Rate" shall be a floating rate per annum equal to the Alternate Base
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Rate in effect on each day of such Fixed Period; provided, further, that the
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Agent (with the consent of the Lenders) and the Borrower may agree in writing
from time to time upon a different "Bank Rate."
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"Bank Rate Allocation" has the meaning set forth in Section 3.3(a).
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"Bankruptcy Code" means the Bankruptcy Code, 11 U.S.C. (S) 101, et seq., as
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amended.
"Borrower" has the meaning set forth in the Preamble.
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"Borrower Account Collateral" has the meaning set forth in Section 9.1(c).
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"Borrower Assigned Agreements" has the meaning set forth in Section 9.1(b).
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"Borrowing Base" means, on any day, the excess of (a) the sum of (i) the
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Aggregate Outstanding Principal Balance as of such day of all Transferred
Receivables which are Eligible Receivables on such day, plus (ii) the amount on
----
deposit in the Collateral Account on such day, plus (iii) (without duplication)
----
the aggregate of the amount on deposit in the Collection Account available for
distribution pursuant to Section 3 of the Security Agreement on such day and the
amount on deposit in the Lockbox Account on such day, over (b) the Required
----
Holdback in effect on such day.
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"Borrowing Base Confirmation" has the meaning set forth in Section 7.3(g).
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"Borrowing Base Deficiency" has the meaning set forth in Section 14.1(e).
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"Borrower Collateral" has the meaning set forth in Section 9.1.
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"Business Day" shall mean any day on which (a) commercial banks in New York
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City, New York, Columbus, Ohio or Fort Worth, Texas are not authorized or
required to be closed, and (b) in the case of a Business Day which relates to a
Eurodollar Advance, dealings are carried on in the London interbank Eurodollar
market.
"Certificates" has the meaning ascribed to such term in the Trust
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Agreement.
"Change of Control" means a change resulting when any Unrelated Person or
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any Unrelated Persons, acting together, that would constitute a Group together
with any Affiliates or Related Persons thereof (in each case also constituting
Unrelated Persons) shall at any time either (i) Beneficially Own more than 30%
of the aggregate voting power of all classes of Voting Stock of AmeriCredit
Corp. or (ii) succeed in having sufficient of its or their nominees elected to
the Board of Directors of AmeriCredit Corp. such that such nominees when added
to any existing director remaining on the Board of Directors of AmeriCredit
Corp. after such election who is an Affiliate or Related Person of such Person
or Group, shall constitute a majority of the Board of Directors of AmeriCredit
Corp. As used herein, (a) "Beneficially Own" shall mean "beneficially own" as
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defined in Rule 13d-3 of the Exchange Act, or any successor provision thereto;
provided, however, that, for purposes of this definition, a Person shall not be
deemed to Beneficially Own securities tendered pursuant to a tender or exchange
offer made by or on behalf of such Person or any of such Person's Affiliates
until such tendered securities are accepted for purchase or exchange; (b)
"Group" shall mean a "group" for purposes of Section 13(d) of the Exchange Act;
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(c) "Unrelated Person" shall mean at any time any Person other than AmeriCredit
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Corp. or any of its Subsidiaries and other than any trust for any employee
benefit plan of AmeriCredit Corp. or any of its Subsidiaries; (d) "Related
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Person" of any Person shall mean any other Person owning (1) 5% or more of the
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outstanding common stock of such Person or (2) 5% or more of the Voting Stock of
such Person; and (e) "Voting Stock" of any Person shall mean the capital stock
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or other indicia of equity rights of such Person which at the time has the power
to vote for the election of one or more members of the Board of Directors (or
other governing body) of such Person.
"Clean-Up Period" shall mean the period commencing on the date of the
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initial Advance hereunder and ending on June 30, 1999 and thereafter, each
calendar quarter.
"Clean-Up Requirement" means the obligation of the Borrower to reduce to
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zero
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the outstanding principal amount of all Advances for 5 consecutive days during
each Clean-Up Period.
"Closing Date" means the Effective Date.
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"Collateral" means the Transferred Receivables in the Total Receivables
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Pool together with the Other Conveyed Property.
"Collateral Account" means the account designated as the Collateral Account
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in, and which is established and maintained pursuant to, Section 8.17(c).
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"Collateral Agent" means Bank One, N.A. solely in its capacity as
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Collateral Agent, together with its permitted successors and assigns in such
capacity.
"Collateral Insurance" means a vendor's single interest or other collateral
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protection insurance policy with respect to Financed Vehicles, which policy by
its terms insures against physical damage in the event any Obligor fails to
maintain physical damage insurance with respect to the related Financed Vehicle.
"Collateral Receipt" means a Custodian's Acknowledgment in the form of
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Exhibit A to the Custodian Agreement.
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"Collected Funds" means, with respect to any Determination Date, the amount
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of funds in the Collection Account representing collections on the Total
Receivables Pool during the related Collection Period, including all Recoveries
with respect thereto collected during the related Collection Period (but
excluding any Purchase Amounts).
"Collection Account" means the account designated as the Collection Account
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in, and which is established and maintained pursuant to, Section 8.17(a).
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"Collection Period" means any calendar month and, with respect to a
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Determination Date or a Distribution Date, the calendar month preceding the
month in which such Determination Date or Distribution Date occurs (such
calendar month being referred to as the "related" Collection Period with respect
to such Determination Date or Distribution Date) or, in the case of the initial
Distribution Date and Determination Date, the period commencing at the opening
of business on the Closing Date and ending at the end of the calendar month
following the calendar month in which the Closing Date occurs. Any amount stated
"as of the close of business on the last day of a Collection Period" shall give
effect to the following calculations as determined as of the end of the day on
such last day: (i) all applications of Collected Funds and Purchase Amounts, and
(ii) all distributions.
"Collection Records" means all manually prepared or computer generated
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records relating to collection efforts or payment histories with respect to the
Transferred
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Receivables.
"Commercial Paper Rate" for Advances means, to the extent a Noncommitted
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Lender funds such Advances by issuing commercial paper, the sum of (a) the
weighted average of the rates at which commercial paper notes of such
Noncommitted Lender issued to fund such Advances may be sold by any placement
agent or commercial paper dealer selected by such Noncommitted Lender, as agreed
in good faith between each such agent or dealer and such Noncommitted Lender;
provided if the rate (or rates) as agreed between any such agent or dealer and
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such Noncommitted Lender is a discount rate (or rates), then such rate shall be
the rate (or if more than one rate, the weighted average of the rates) resulting
from converting such discount rate (or rates) to an interest-bearing equivalent
rate per annum plus (b) any and all commissions of placement agents and
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commercial paper dealers in respect of commercial paper issued to fund the
making or maintenance of any Advance plus (c) any and all reasonable costs and
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expenses of any issuing and paying agent or other Person responsible for the
administration of such Noncommitted Lender's commercial paper program in
connection with the preparation, completion, issuance, delivery or payment of
commercial paper issued to fund the making or maintenance of any Advance. Each
Noncommitted Lender shall notify the Agent of its Commercial Paper Rate
applicable to any Advance promptly after the determination thereof.
"Commitment" means, for any Committed Lender, the maximum amount of such
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Committed Lender's commitment to fund Advances hereunder, as set forth on the
Joinder Supplement or in the assignment documentation by which such Committed
Lender became a party to this Agreement or assumed the Commitment (or a portion
thereof) of another Committed Lender, as such amount may be adjusted from time
to time pursuant to Section 2.5 or pursuant to assignment documentation executed
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by such Committed Lender and its assignee and delivered pursuant to Section 16.2
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of this Agreement. In the event that a Committed Lender maintains a portion of
its Commitment hereunder with respect to more than one Noncommitted Lender, such
Committed Lender shall be deemed to hold separate Commitments hereunder in each
such capacity.
"Commitment Percentage" means, for a Committed Lender, such Committed
---------------------
Lender's Commitment as a percentage of the aggregate Commitments of all
Committed Lenders.
"Commitment Termination Date" means March 29, 2000, as such date may be
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extended from time to time as agreed in writing between the Borrower, the
Servicer, the Agent and the Lenders.
"Committed Lender" means, with respect to a Noncommitted Lender, each
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financial institution party to a Joinder Supplement which Joinder Supplement
designates such financial institution as a "Committed Lender" with respect to
such Noncommitted
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Lender, and any assignee of such Committed Lender pursuant to Article XVI to the
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extent such assignee has assumed a portion of the Commitment of such Committed
Lender.
"Contingent Liability" means any agreement, undertaking or arrangement by
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which any Person guarantees, endorses or otherwise becomes or is contingently
liable upon (by direct or indirect agreement, contingent or otherwise, to
provide funds for payment, to supply funds to, or otherwise to invest in, a
debtor, or otherwise to assure a creditor against loss) the indebtedness,
obligation or any other liability of any other Person (other than by
endorsements of instruments in the course of collection), or guarantees the
payment of dividends or other distributions upon the shares of any other Person.
The amount of any Person's obligation under any Contingent Liability shall
(subject to any limitation set forth therein) be deemed to be the outstanding
principal amount (or maximum outstanding principal amount, if larger) of the
debt, obligation or other liability guaranteed thereby.
"CP Allocation" has the meaning set forth in Section 3.3(a).
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"Cram Down Loss" means, with respect to a Receivable, if a court of
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appropriate jurisdiction in an insolvency proceeding shall have issued an order
reducing the amount owed on such Receivable or otherwise modifying or
restructuring the scheduled payments to be made on such Receivable, an amount
equal to the excess of the principal balance of such Receivable immediately
prior to such order, over the principal balance of such Receivable as so
----
reduced. A "Cram Down Loss" shall be deemed to have occurred on the date of
issuance of such order.
"CSFB" has the meaning set forth in the Preamble.
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"CSFB Roles" has the meaning set forth in Section 18.11.
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"Custodial Fee Rate" means (a) if AFS is the Custodian, 0% and (b) if a
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Person other than AFS is the Custodian, a rate agreed to by such Person and the
Agent.
"Custodian" means AFS in its capacity as Custodian under the Custodian
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Agreement, and its permitted successors and assigns in such capacity.
"Custodian Agreement" means the Custodian Agreement dated as of the date
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hereof among the Custodian, the Collateral Agent and the Agent, including all
permitted amendments, modifications and supplements thereto.
"Dealer" means a seller of new or used automobiles, light duty trucks,
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minivans or sport utility vehicles that originated one or more of the
Receivables in the Total Receivables Pool and sold the respective Receivable,
directly or indirectly, to a Seller.
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"Dealer Agreement" means an agreement by and among a Seller and a Dealer
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relating to the sale of Receivables to such Seller and all documents and
instruments relating thereto.
"Dealer Assignment" means, with respect to a Transferred Receivable, the
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executed assignment executed by a Dealer conveying such Receivable to a Seller.
"Default Rate" means a rate per annum equal to the Alternate Base Rate (but
------------ --- -----
not less than the Yield (if any) in effect for the related monetary obligation),
plus a margin of 2%.
----
"Defaulted Receivable" means, with respect to a Transferred Receivable as
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of any date, a Receivable with respect to which (i) all or any portion in excess
of 5% of a Scheduled Payment is more than 90 days past due, (ii) the Servicer
has repossessed the related Financed Vehicle (and any applicable redemption
period has expired), (iii) the Obligor has been identified in the records of the
Servicer as being the subject of a current bankruptcy proceeding or (iv) such
Receivable is in default and the Servicer has charged-off such Receivable in
accordance with its standard policies or otherwise has determined in good faith
that payments thereunder are not likely to be resumed.
"Deficiency Amount" means, as of any date, an amount equal to the product
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of (x) the Deficiency Percentage, (y) the Aggregate Outstanding Principal
Balance of Eligible Receivables in the Total Receivables Pool as of such date
and (z) 2.0.
"Deficiency Percentage" means, as of any date, the positive excess (rounded
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upward to the nearest 1.0%), if any, of (a) the sum of (i) 8.75% plus (ii) the
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Total Expense Percentage plus (iii) the weighted (on the basis of notional
----
amounts) average Interest Rate Cap Strike Prices for the Interest Rate Hedges in
effect on such date plus (iv) 1.25%, over (b) the weighted average APR for all
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Receivables in the Total Receivables Pool.
"Delinquency Ratio" means, as of any date, the ratio (expressed as a
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percentage) computed by dividing:
(a) the sum of (i) the Aggregate Outstanding Principal Balance
of Receivables in the Total Receivables Pool which were
Defaulted Receivables as of the close of business on
the last day of the Collection Period immediately
preceding such date plus (ii) without duplication of
----
amounts included in (i), the Aggregate Outstanding
Principal Balance of Receivables in the Total
Receivables Pool which were Delinquent Receivables as
of the close of business on the last day of such
immediately preceding Collection Period
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by
--
(b) the sum of the Aggregate Outstanding Principal Balance of
all Receivables in the Total Receivables Pool as of the
close of business on the last day of such immediately
preceding Collection Period plus, without duplication,
----
if a Take-Out Securitization has occurred during such
immediately preceding Collection Period, the Aggregate
Outstanding Principal Balance of all Transferred
Receivables which were included in such Take-Out
Securitization.
The Delinquency Ratio shall be determined on each Determination Date and shall
remain in effect until recalculated on the next succeeding Determination Date;
provided that, on any date that no Advances are outstanding and no Yield is
owing, the Delinquency Ratio on such date shall be deemed to be zero.
"Delinquent Receivable" means a Receivable with respect to which more than
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5% of a Scheduled Payment is more than 30 days past due.
"Determination Date" means, with respect to a Collection Period, the fourth
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Business Day prior to the related Distribution Date.
"Distribution Date" means the 15th day of each calendar month, or if such
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15th day is not a Business Day, the next succeeding Business Day, commencing May
17, 1999.
"Dollar(s)" and the sign "$" mean lawful money of the United States of
--------- -
America.
"Effective Date" has the meaning set forth in Section 7.1.
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"Eligible Account" means (i) a segregated trust account or (ii) a
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segregated direct deposit account, in each case, maintained with a depository
institution or trust company organized under the laws of the United States of
America, or any of the States thereof, or the District of Columbia, having a
certificate of deposit, short term deposit or commercial paper rating of at
least A-1+ by Standard & Poor's and P-1 by Moody's. In either case, such
depository institution or trust company shall (x) be CSFB or Bank One, N.A. or
(y) have been approved by the Agent, acting in its discretion, by written notice
to the Servicer.
"Eligible Assignee" has the meaning set forth in Section 16.1.
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"Eligible Receivable" means a Receivable that (i) was originated by AFS or
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ACC directly or by a Dealer for the retail sale or refinancing of a Financed
Vehicle in the ordinary course of its business and such Seller or Dealer (as the
case may be) had all necessary licenses and permits to originate Receivables in
the applicable state, and, if
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originated by a Dealer, was purchased by AFS or ACC from such Dealer under a
Dealer Agreement or pursuant to a Dealer Assignment and was validly assigned by
such Dealer to such Seller, or, with respect to any Receivable sold to the
Borrower by AFC, was purchased by AFC from AFS or ACC, (ii) has created or shall
create a valid, subsisting and enforceable first priority perfected security
interest in favor of AFS or ACC in the related Financed Vehicle (which security
interest has been assigned to the Borrower and shall be validly assignable by
the Borrower to the Collateral Agent on behalf of the Secured Parties), except
as enforceability may be limited by bankruptcy, insolvency, reorganization or
similar laws affecting the enforcement of creditors' rights generally, (iii) was
fully and properly executed by the parties thereto and contains customary and
enforceable provisions such as to render the rights and remedies of the holder
thereof adequate for realization against the collateral security, (iv) is a
Simple Interest Receivable or Pre-Computed Receivable which provides for level
monthly payments (provided that the payment in the first monthly period and the
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final monthly period of the life of the Receivable may be minimally different
from the level payment) which, if made when due, shall fully amortize the Amount
Financed over the original term, (v) provides for, in the event that such
contract is prepaid, a prepayment that fully pays the principal balance and
includes accrued but unpaid interest through the date of prepayment in an amount
at least equal to the Annual Percentage Rate, and (vi) except to the extent
permitted by this Agreement, has not been amended, waived or rewritten or
collections with respect thereto deferred or waived; and
(a) with respect to which all requirements of applicable
federal, state and local laws, and regulations thereunder (including,
without limitation, usury laws, the Federal Truth-in-Lending Act, the
Equal Credit Opportunity Act, the Fair Credit Billing Act, the Fair
Credit Reporting Act, the Fair Debt Collection Practices Act, the
Federal Trade Commission Act, the Magnuson-Moss Warranty Act, the
Federal Reserve Board's Regulations "B" and "Z", the Soldiers' and
Sailors' Civil Relief Act of 1940, and state adaptations of the
National Consumer Act and of the Uniform Consumer Credit Code and
other consumer credit laws and equal credit opportunity and disclosure
laws), in respect of such Receivable, the sale of the Financed Vehicle
related thereto and the sale of credit life and credit accident and
health insurance and any extended service contracts, if any, in
connection with such Receivable, have been complied with in all
material respects;
(b) that is a Dollar obligation of an Obligor domiciled in the
United States of America and that was originated and, if originated by
a Dealer, was sold by the Dealer to AFS or ACC, without any fraud or
material misrepresentation on the part of such Dealer or on the part
of the Obligor;
(c) which represents the genuine, legal, valid and binding
payment obligation of the Obligor thereon, enforceable by the holder
thereof in accordance with its terms, except (A) as enforceability may
be limited by
<PAGE>
Page 14
bankruptcy, insolvency, reorganization or 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 and (B) as such Receivable may be modified by the application
of the Soldiers' and Sailors' Civil Relief Act of 1940, as amended;
and all parties to such Receivable had full legal capacity to execute
and deliver such Receivable and all other documents related thereto
and to grant the security interest purported to be granted thereby;
(d) which is not due from the United States of America or any
State or from any agency, department, subdivision or instrumentality
thereof;
(e) with respect to which the information set forth in the
Schedule of Receivables has been produced from AFS's and, to the
extent it maintains separate computer records, AFC's or ACC's (as the
case may be) electronic ledger and was true and correct in all
material respects, and is a complete and accurate description, on the
relevant Purchase Date, of the Receivables sold to the Borrower on
such date; and with respect to which, on or prior to the relevant
Purchase Date, AFS and, to the extent it maintains separate computer
records, AFC or ACC (as the case may be) has appropriately marked its
computer records to indicate the sale to the Borrower of the
Receivables sold on such date and with respect to which the Monthly
Tape delivered by the Servicer to the Backup Servicer from time to
time was complete and accurate as of the date delivered and consistent
with the information set forth in the Schedule of Receivables with
respect to such Receivable;
(f) which (i) as of the related Advance Date, (A) had an
original maturity of at least 6 months but not more than 72 months,
(B) had an original Amount Financed of at least $1,000 and not more
than $50,000, (C) had an Annual Percentage Rate of at least 7.75% and
not more than 27.0%, and (D) was not more than 30 days past due; and
(ii) with respect to which no funds have been advanced with respect to
such Receivable by the Borrower, a Seller, the Servicer, any Dealer,
or anyone acting on behalf of any of them in order to cause such
Receivable to qualify under subclause (i)(D) of this clause (f);
---------------- ----------
(g) which has not been satisfied, subordinated or rescinded, and
the Financed Vehicle securing such Receivable has not been released
from the Lien of such Receivable in whole or in part;
(h) with respect to which no provision has been waived (except
to the extent permitted by this Agreement);
(i) except for any Lien granted by the Wells Fargo Documents (as
defined in the Intercreditor Agreement) which Lien shall be released
on the
<PAGE>
Page 15
applicable Purchase Date, as to which neither any Seller nor the
Borrower has done anything to convey any right to any Person that
would result in such Person having a right to payments due under such
Receivable or otherwise to impair the rights of the Collateral Agent
on behalf of the Secured Parties in such Receivable or the proceeds
thereof;
(j) which has not been sold, transferred, assigned or pledged by
the Borrower to any Person other than hereunder; and no Dealer has a
participation in, or other right to receive, proceeds of such
Receivable and with respect to which neither AFS nor the Borrower has
taken any action to convey any right to any Person (other than
hereunder) that would result in such Person having a right to payments
received under the related Insurance Policy or the related Dealer
Agreement or Dealer Assignment or to payments due under such
Receivable;
(k) which is not subject to any right of rescission, setoff,
counterclaim or defense and no such right has been asserted or, to the
knowledge of the Borrower or of any Seller, threatened with respect
thereto;
(l) with respect to which no liens or claims have been filed for
work, labor or materials relating to a Financed Vehicle that are liens
prior to or equal or coordinate with, the security interest in the
Financed Vehicle granted by such Receivable;
(m) with respect to which no default, breach, violation or event
permitting acceleration thereof has occurred, and none of the
Borrower, the Servicer or any Seller has waived any of the foregoing;
(n) at the time of the origination of which the related Financed
Vehicle was covered by a comprehensive and collision insurance policy
(i) in an amount at least equal to the lesser of (a) its maximum
insurable value and (b) the Amount Financed, (ii) naming AFS or ACC,
as applicable, as loss payee and (iii) insuring against loss and
damage due to fire, theft, transportation, collision and other risks
generally covered by comprehensive and collision coverage and with
respect to which the Obligor is required to maintain physical loss and
damage insurance, naming AFS or ACC and its successors and assigns as
an additional insured party, and such Receivable permits the holder
thereof to obtain Force-Placed Insurance at the expense of the Obligor
if the Obligor fails to do so unless otherwise prohibited by the law
of the state in which the related contract was entered into;
(o) with respect to which, (i) immediately prior to the sale
thereof to the Borrower, the applicable Seller had, and has conveyed
to the Borrower, good and marketable title free and clear of all
liens, encumbrances, security interests
<PAGE>
Page 16
and rights of others, and (ii) the sale and assignment thereof to the
Borrower has been perfected under the UCC;
(p) with respect to each of which a Receivable File is in the
possession of the Custodian and such Receivable File contains (i) the
fully executed original of such Receivable, (ii) a certificate of
insurance, an application form for insurance signed by the related
Obligor, or a signed representation letter from the Obligor named in
such Receivable pursuant to which such Obligor has agreed to obtain
physical damage insurance for the related Financed Vehicle, or copies
thereof, or a documented verbal confirmation by an insurance agent for
such Obligor of a policy number for an insurance policy for the
Financed Vehicle, (iii) the original Lien Certificate (indicating AFS
or ACC as first lienholder) or application therefor or a letter from
the applicable Dealer agreeing unconditionally to repurchase the
related Receivable if the certificate of title is not received by the
Servicer within 180 days (provided that the Lien Certificate is
--------
delivered to the Custodian within 180 days), and (iv) a credit
application or file of credit information regarding the Obligor, or a
copy thereof; each of such documents (if any) which is required to be
signed by the Obligor has been signed by the Obligor in the
appropriate spaces; and all blanks on any form have been properly
filled in and each form has otherwise been correctly prepared;
(q) which was not originated in, or is subject to the laws of,
any jurisdiction the laws of which would make unlawful, void or
voidable the sale, pledge, transfer and assignment of such Receivable
under this Agreement and with respect to which a Seller has not
entered into any agreement with any account debtor that prohibits,
restricts or conditions the assignment of any portion of such
Receivable;
(r) as to which all filings (including, without limitation, UCC
filings but subject to clause (p) above in the case of the applicable
----------
Lien Certificate) required to be made by any Person and actions
required to be taken or performed by any Person in any jurisdiction to
give the Collateral Agent, on behalf of the Secured Parties, a first
priority perfected Lien on such Receivable and the proceeds thereof
and the other Collateral related thereto have been made, taken or
performed;
(s) of which there is only one original executed copy;
(t) which constitutes chattel paper within the meaning of
the UCC;
(u) as to which no selection procedures adverse to the Investors
have been utilized in selecting such Receivable from all other similar
Receivables owned or originated by AFS and its Affiliates;
<PAGE>
Page 17
(v) with respect to which, by the related Date and on each
relevant date thereafter, AFS or ACC or, to the extent it maintains
such records, AFC (as the case may be) will have caused the portions
of its servicing and other records relating to such Receivable to be
clearly and unambiguously marked to show that such Receivable
constitutes part of the Collateral and is subject to the Lien of the
Collateral Agent on behalf of the Secured Parties;
(w) which is not assumable by another Person in a manner which
would release the Obligor thereof from such Obligor's obligations to
the Borrower with respect to such Receivable;
(x) with respect to which the related Financed Vehicle had not
been repossessed;
(y) with respect to which the following is true:
The Lien Certificate for the related Financed Vehicle shows, or,
if a new or replacement Lien Certificate is being applied for with
respect to such Financed Vehicle, the Lien Certificate will be
received within 180 days of the related Purchase Date and will show,
AFS or ACC, as the case may be, named as the original secured party
under such Receivable and, accordingly, AFS or ACC, as the case may
be, will be the holder of a first priority security interest in such
Financed Vehicle. With respect to each Receivable for which the Lien
Certificate has not yet been returned from the Registrar of Titles,
AFS or ACC, as the case may be, has received written evidence from the
related Dealer or the Obligor that such Lien Certificate showing such
Seller as first lienholder has been applied for. If the Receivable was
originated in a state in which a filing or recording is required of
the secured party to perfect a security interest in motor vehicles,
such filings or recordings have been duly made to show AFS or ACC, as
the case may be, named as the original secured party under the related
Receivable;
(z) which is not a Defaulted Receivable;
(aa) which is not a Delinquent Receivable;
(bb) which is not secured by vehicles which are financed
repossessions; and
(cc) which was originated in the United States of America and, at
the time of origination, materially conformed to all requirements of
the Servicing Procedures and Credit Manual applicable to such
Receivable.
For purposes of this Agreement (including the computation from time to
time of
<PAGE>
Page 18
the Borrowing Base), the eligibility of Receivables will be determined from time
to time, such that a Receivable that was an Eligible Receivable at one time but
that subsequently fails to meet all applicable eligibility requirements will no
longer be an Eligible Receivable (unless and until it again meets all applicable
eligibility requirements).
"Eligible Servicer" means AFS, the Backup Servicer or another Person which
-----------------
at the time of its appointment as Servicer (i) is servicing a portfolio of motor
vehicle retail installment sales contracts and/or motor vehicle installment
loans, (ii) is legally qualified and has the capacity to service the Transferred
Receivables, (iii) has demonstrated the ability professionally and competently
to service a portfolio of motor vehicle retail installment sales contracts
and/or motor vehicle installment loans similar to the Transferred Receivables
with reasonable skill and care, and (iv) is qualified and entitled to use,
pursuant to a license or other written agreement, and agrees to maintain the
confidentiality of, the software which the Servicer uses in connection with
performing its duties and responsibilities under this Agreement or otherwise has
available software which is adequate to perform its duties and responsibilities
under this Agreement.
"ERISA" means the U.S. Employee Retirement Income Security Act of 1974, as
-----
amended from time to time.
"Eurocurrency liabilities" has the meaning assigned to that term in
------------------------
Regulation D of the Board of Governors of the Federal Reserve System, as in
effect from time to time.
"Eurodollar Advance" means any Advance (or portion thereof) that bears
------------------
Yield computed by reference to the Eurodollar Rate.
"Eurodollar Rate Reserve Percentage" of any Lender for any Fixed Period in
----------------------------------
respect of which Yield is computed by reference to the Eurodollar Rate means the
reserve percentage applicable two Business Days before the first day of such
Fixed Period under regulations issued from time to time by the Board of
Governors of the Federal Reserve System (or any successor) (or if more than one
such percentage shall be applicable, the daily average of such percentages for
those days in such Fixed Period during which any such percentage shall be so
applicable) for determining the maximum reserve requirement (including, without
limitation, any emergency, supplemental or other marginal reserve requirement)
for such Lender with respect to liabilities or assets consisting of or including
Eurocurrency liabilities (or with respect to any other category of liabilities
that includes deposits by reference to which the yield rate on Eurocurrency
liabilities is determined) having a term equal to such Fixed Period.
"Event of Bankruptcy" shall be deemed to have occurred with respect to a
-------------------
Person if either:
(a) a case or other proceeding shall be commenced, without the
<PAGE>
Page 19
application or consent of such Person, in any court, seeking the
liquidation, reorganization, debt arrangement, dissolution, winding up, or
composition or readjustment of debts of such Person, the appointment of a
trustee, receiver, custodian, liquidator, assignee, sequestrator or the
like for such Person or all or substantially all of its assets, or any
similar action with respect to such Person under any law relating to
bankruptcy, insolvency, reorganization, winding up or composition or
adjustment of debts, and such case or proceeding shall continue
undismissed, or unstayed and in effect, for a period of 60 consecutive
days; or an order for relief in respect of such Person shall be entered in
an involuntary case under the federal bankruptcy laws or other similar laws
now or hereafter in effect; or
(b) such Person shall commence a voluntary case or other proceeding
under any applicable bankruptcy, insolvency, reorganization, debt
arrangement, dissolution or other similar law now or hereafter in effect,
or shall consent to the appointment of or taking possession by a receiver,
liquidator, assignee, trustee, custodian, sequestrator (or other similar
official) for such Person or for any substantial part of its property, or
shall make any general assignment for the benefit of creditors, or shall
fail to, or admit in writing its inability to, pay its debts generally as
they become due, or, if a corporation or similar entity, its board of
directors shall vote to implement any of the foregoing.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
------------
"Face Amount" means, with respect to outstanding commercial paper, (i) the
-----------
face amount of any such commercial paper issued on a discount basis, and (ii)
the principal amount of, plus the amount of all interest accrued and to accrue
thereon to the stated maturity date of, any commercial paper issued on an
interest-bearing basis.
"Facility" has the meaning set forth in Section 2.1.
-------- -----------
"Facility Fee Rate" has the meaning set forth in the Fee Letter.
-----------------
"Facility Limit" means, on any day, the lesser of (x) $300,000,000 and (y)
--------------
the Total Commitment in effect on such day, as such Total Commitment may be
reduced or increased pursuant to Section 2.5. References to the unused portion
-----------
of the Facility Limit shall mean, at any time, the Facility Limit in effect at
such time, minus the sum of the then outstanding principal amount of Advances
-----
under this Agreement.
"Facility Termination Date" means the earliest to occur of (i) the date of
-------------------------
any termination of the Total Commitment, in whole, by the Borrower pursuant to
Section 2.5, (ii) the effective date on which the Facility is terminated
-----------
pursuant to Section 14.2, and (iii) the Commitment Termination Date.
------------
<PAGE>
Page 20
"Facility Termination Event" means any of the events described in Section
-------------------------- -------
14.1.
----
"Fee Letter" has the meaning set forth in Section 3.4.
---------- -----------
"Fees" means all fees and other amounts payable to the Agent, on behalf of
----
itself, the Lenders and the Liquidity Providers, pursuant to the Fee Letter.
"Financed Vehicle" means any automobile, light duty truck, van, minivan or
----------------
sport utility vehicle, together with all accessories, additions and parts
constituting a part thereof and all accessions thereto.
"Fixed Period" means with respect to any Advance (or portion thereof):
------------
(a) the period commencing on the date of the initial funding of such
Advance (or such portion) and ending such number of days (not to exceed 69
days) thereafter as the Agent shall select in accordance with Section
-------
3.3(b), after consultation to the extent practicable with the Borrower; and
------
(b) thereafter, each period commencing on the last day of the
immediately preceding Fixed Period for such Advance (or such portion) and
ending such number of days (not to exceed 69 days) thereafter as the Agent
shall then select in accordance with Section 3.3(b), after consultation to
--------------
the extent practicable with the Borrower;
provided, however, that:
-------- -------
(i) any Fixed Period in respect of which Yield is computed by
reference to the Bank Rate shall be a period of from one to and
including 29 days (if reasonably available to the Agent), or a period
of one, two or three months, as the Borrower may select by written
notice to the Agent furnished not later than 12:00 noon (New York City
time) on the second Business Day preceding the first day of such Fixed
Period;
(ii) any such Fixed Period (other than a Fixed Period consisting
of one day) that would otherwise end on a day that is not a Business
Day shall be extended to the next succeeding Business Day (unless the
related Advance shall be accruing Yield at a rate determined by
reference to the Eurodollar Rate and the Fixed Period is one, two or
three months, in which case if such succeeding Business Day is in a
different calendar month, such Fixed Period shall instead be shortened
to the next preceding Business Day);
(iii) in the case of Fixed Periods of one day, (A) the initial
Fixed Period shall be the day of the initial funding of such Advance,
and (B) any
<PAGE>
Page 21
subsequently occurring Fixed Period that is one day shall, if the
immediately preceding Fixed Period is more than one day, be the last
day of such immediately preceding Fixed Period, and if the immediately
preceding Fixed Period is one day, shall be the next day following
such immediately preceding Fixed Period; and
(iv) if any Fixed Period for any Advance that commences before
the Facility Termination Date would otherwise end on a date occurring
after the Facility Termination Date, such Fixed Period shall end on
the Facility Termination Date and the duration of each such Fixed
Period that commences on or after the Facility Termination Date, if
--
any, shall be of such duration as shall be selected by the Agent.
---
"Force-Placed Insurance" has the meaning set forth in Section 8.4(b).
---------------------- --------------
"GAAP" means generally accepted accounting principles set forth in the
----
opinions and pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board or in such other statements by such
other entity as may be approved by a significant segment of the accounting
profession, which are applicable to the circumstances as of any date of
determination.
"Indebtedness" of any Person means, without duplication:
------------
(a) all obligations of such Person for borrowed money and all
obligations of such Person evidenced by bonds, debentures, notes or other
similar instruments;
(b) all obligations, contingent or otherwise, relative to the face
amount of all letters of credit, whether or not drawn, and banker's
acceptances issued for the account of such Person;
(c) all obligations of such Person as lessee under leases that have
been or should be, in accordance with GAAP, recorded as capitalized lease
liabilities;
(d) all other items that, in accordance with GAAP, would be included
as liabilities on the liability side of the balance sheet of such Person as
of the date at which Indebtedness is to be determined;
(e) whether or not so included as liabilities in accordance with GAAP,
all obligations of such Person to pay the deferred purchase price of
property or services, and indebtedness (excluding prepaid interest thereon)
secured by a lien on property owned or being purchased by such Person
(including
<PAGE>
Page 22
indebtedness arising under conditional sales or other title retention
agreements), whether or not such indebtedness shall have been assumed by
such Person or is limited in recourse; and
(f) all Contingent Liabilities of such Person in respect of any of the
foregoing.
"Indemnified Amounts" has the meaning set forth in Section 17.1.
------------------- ------------
"Indemnified Party" has the meaning set forth in Section 17.1.
----------------- ------------
"Independent Accountants" has the meaning set forth in Section 8.11(a).
----------------------- ---------------
"Insurance Add-On Amount" means the premium charged to the Obligor if the
-----------------------
Servicer obtains Force-Placed Insurance pursuant to Section 8.4.
-----------
"Insurance Policies" means, with respect to a Receivable, any insurance
------------------
policy (including the insurance policies described in clause (n) of the
----------
definition of "Eligible Receivable") benefiting the holder of the Receivable
-------------------
providing loss or physical damage, credit life, credit disability, theft,
mechanical breakdown or similar coverage with respect to the Financed Vehicle or
the Obligor.
"Intercreditor Agreement" means the Intercreditor Agreement dated as of the
-----------------------
date hereof among the Agent, Wells Fargo, the Borrower, the Collateral Agent and
AFS, including all permitted amendments, modifications and supplements thereto.
"Interest Rate Cap Strike Price" means, with respect to an Interest Rate
------------------------------
Hedge, the "strike price" set forth in such Interest Rate Hedge.
"Interest Rate Hedge" means any interest rate cap or other hedging
-------------------
mechanism which satisfies the requirements of Section 11.6.
------------
"Interest Rate Hedge Assignment Acknowledgment" means an acknowledgment in
---------------------------------------------
substantially the form of Exhibit C hereto executed by a counterparty to an
---------
Interest Rate Hedge (if other than CSFB) in favor of the Agent and the
Collateral Agent.
"Interim Distribution Date" means any Settlement Date, other than a
-------------------------
Distribution Date, on which the Collateral Agent shall pay principal, Yield and
certain other amounts in accordance with this Agreement and the Security
Agreement.
"Investor" means (i) all Lenders, (ii) all other owners by assignment (in
--------
accordance with Section 16.1) of an Advance and, to the extent of the undivided
------------
interests so purchased, all Participants (in accordance with Section 16.9) and
------------
(iii) the Agent and any subsequent holders of the Note (in accordance with
Section 16.5).
------------
<PAGE>
Page 23
"Joinder Supplement" means an agreement among a Noncommitted Lender or
------------------
Committed Lender (as the case may be), the Borrower, AFS and the Agent in the
form of Exhibit F hereto (appropriately completed).
---------
"Lender" means any Noncommitted Lender or Committed Lender, and "Lenders"
------ -------
means, collectively, all Noncommitted Lenders and Committed Lenders.
"Level I Trigger Event" means, as of any date, that (x) a Portfolio Trigger
---------------------
Event has occurred on or prior to such date or (y) a Portfolio Default has
occurred prior to such date and such Portfolio Default has been cured or waived
in accordance with the related transaction documents.
"Level II Trigger Event" means, as of any date, the existence of a
----------------------
Portfolio Default on such date. A "Level II Trigger Event" shall be deemed to
exist so long as the underlying Portfolio Default is not cured or waived in
accordance with the related transaction documents.
"Level III Trigger Event" means, on any date, that the Servicer Delinquency
-----------------------
Ratio exceeds 14% on such date and a Level IV Trigger Event is not in effect on
such date; provided that such 14% shall be reduced to 12% with respect to
computations of the Servicer Delinquency Ratios as of the last day of the
February through September (inclusive) Collection Periods.
"Level IV Trigger Event" means, on any date, that the Servicer Delinquency
----------------------
Ratio exceeds 15% on such date; provided that such 15% shall be reduced to 13%
with respect to computations of the Servicer Delinquency Ratios as of the last
day of the February through September (inclusive) Collection Periods.
"Level V Trigger Event" means, on any date, that the Portfolio Net Loss
---------------------
Ratio exceeds 7% on such date and a Level VI Trigger Event is not in effect on
such date.
"Level VI Trigger Event" means, on any date, that the Portfolio Net Loss
----------------------
Ratio exceeds 7.5% on such date.
"Lien" means any security interest, lien, charge, pledge, preference,
----
equity or encumbrance of any kind, including tax liens, mechanics' liens and any
liens that attach by operation of law.
"Lien Certificate" means, with respect to a Financed Vehicle, an original
----------------
certificate of title, certificate of lien or other notification issued by the
Registrar of Titles of the applicable state to a secured party which indicates
that the lien of the secured party on the Financed Vehicle is recorded on the
original certificate of title. In any jurisdiction in which the original
certificate of title is required to be given to the Obligor, the term "Lien
<PAGE>
Page 24
Certificate" shall mean only a certificate or notification issued to a secured
party.
"Liquidity Provider" means each Person who provides liquidity, credit
------------------
enhancement or a "back-stop" purchase facility to a Noncommitted Lender under a
Noncommitted Lender Liquidity Arrangement.
"Lockbox Account" has the meaning set forth in Section 8.2(d).
--------------- --------------
"Lockbox Agreement" means the Tri-Party Remittance Processing Agreement,
-----------------
dated as of the date hereof, by and among the Lockbox Bank, the Servicer and
Bank One, N.A., as Collateral Agent, as such agreements may be amended from time
to time in accordance with the provisions hereof and thereof, unless such
agreement shall be terminated in accordance with its terms, in which event
"Lockbox Agreement" shall mean such other agreement, in form and substance
acceptable to the Agent, among the Servicer, the Collateral Agent and the
Lockbox Bank.
"Lockbox Bank" means Bank One, Texas, N.A. or any other depository
------------
institution named by the Servicer and acceptable to the Agent.
"Maximum Interest Rate Cap Strike Price" means 5.75% per annum.
--------------------------------------
"Maximum Purchase Amount" of a Noncommitted Lender means the aggregate
-----------------------
Commitment of the Committed Lenders with respect to such Noncommitted Lender.
"Minimum Reserve Account Amount" means, on any date, the greater of (a)
------------------------------
$300,000 and (b) the product of 1.0% and the greater of (x) the Facility Limit
in effect on such date and (y) the sum of (i) the aggregate unpaid principal
amount of all Advances on such date plus (ii) the Required Holdback in effect on
----
such date.
"Monthly Extension Rate" means, with respect to any Determination Date, the
----------------------
fraction, expressed as a percentage, the numerator of which is the Aggregate
Outstanding Principal Balance of all Receivables in the Servicing Portfolio
whose payments are extended during the related Collection Period and the
denominator of which is the Aggregate Outstanding Principal Balance of all
Receivables in the Servicing Portfolio as of the close of business on the last
day of the Collection Period immediately preceding such related Collection
Period.
"Monthly Records" means all records and data maintained by the Servicer
---------------
with respect to the Transferred Receivables, including the following with
respect to each Transferred Receivable: the account number; the originating
Dealer; Obligor name; Obligor address; Obligor home phone number; Obligor
business phone number; original Principal Balance; original term; Annual
Percentage Rate; current Principal Balance; origination date; first payment
date; next payment due date; date of most recent payment; new/used
classification; collateral description; days currently delinquent;
<PAGE>
Page 25
number of contract extensions (months) to date; amount of Scheduled Payment;
and, once available, current remaining term and current Insurance Policy
expiration date and past due late charges.
"Monthly Tape" means the computer tape or listing generated on behalf of
------------
the Borrower which contains the information set forth in the definition of
"Monthly Records" above and in a format acceptable to the Backup Servicer.
"Moody's" means Moody's Investors Service, Inc.
-------
"Noncommitted Lender" means each Structured Lender which shall become a
-------------------
party hereto pursuant to a Joinder Supplement duly executed by all parties
thereto.
"Noncommitted Lender Liquidity Arrangement" means each liquidity, credit
-----------------------------------------
enhancement or "back-stop" purchase or loan facility for a Noncommitted Lender
relating to this Agreement.
"Noncommitted Percentage" means, for a Noncommitted Lender, such
-----------------------
Noncommitted Lender's Maximum Purchase Amount as a percentage of the Facility
Limit.
"Note" means the promissory grid note, in the form of Exhibit B, made
---- ---------
payable to the order of the Agent, on behalf of the Investors.
"Note Register" has the meaning set forth in Section 16.5(a).
------------- ---------------
"Note Registrar" has the meaning set forth in Section 16.5(a).
-------------- ---------------
"Obligations" means all obligations (monetary or otherwise) of the Borrower
-----------
to the Lenders, the Agent, the Collateral Agent or any other Affected Person
arising under or in connection with this Agreement, the Note and each other
Transaction Document.
"Obligor" means a Person obligated to make payments with respect to a
-------
Transferred Receivable.
"Officer's Certificate" means, with respect to any Person which is not an
---------------------
individual, a certificate signed by the President, the Chief Financial Officer,
the Treasurer, any Assistant Treasurer or any Vice President of such Person.
"Official Body" means any government or political subdivision or any
-------------
agency, authority, regulatory body, bureau, central bank, commission, department
or instrumentality of any such government or political subdivision, or any
court, tribunal, grand jury or arbitrator, in each case whether foreign or
domestic.
<PAGE>
Page 26
"Opinion of Counsel" means a written opinion of counsel reasonably
------------------
acceptable to the Agent which, unless otherwise provided herein, may be an
employee of the Person delivering such opinion.
"Other Conveyed Property" has the meaning set forth in the Purchase
-----------------------
Agreement.
"Participant" has the meaning set forth in Section 16.9.
----------- ------------
"Permitted Investment" means any one or more of the following types of
--------------------
investments:
(a) (i) direct interest-bearing obligations of, and interest-bearing
obligations guaranteed as to timely payment of principal and interest by,
the United States or any agency or instrumentality of the United States,
the obligations of which are backed by the full faith and credit of the
United States; and (ii) direct interest bearing obligations of, and
interest-bearing obligations guaranteed as to timely payment of principal
and interest by, the Federal National Mortgage Association or the Federal
Home Loan Mortgage Corporation, but only if, at the time of investment,
such obligations are assigned the highest credit rating by each Rating
Agency;
(b) demand or time deposits in, certificates of deposit of, or
bankers' acceptances issued by any depository institution or trust company
organized under the laws of the United States or any State thereof
(including any federal or state branch or agency of a foreign depository
institution or trust company) and subject to supervision and examination by
federal and/or state banking authorities (including, if applicable, the
Collateral Agent, the Agent or any agent thereof acting in its commercial
capacity); provided that the short-term unsecured debt obligations of such
--------
depository institution or trust company at the time of such investment, or
contractual commitment providing for such investment, are assigned the
highest credit rating by each Rating Agency;
(c) repurchase obligations pursuant to a written agreement (i) with
respect to any obligation described in clause (a) above, where the
Collateral Agent has taken actual or constructive delivery of such
obligation, and (ii) entered into with (x) CSFB or (y) the corporate trust
department of a depository institution or trust company organized under the
laws of the United States or any State thereof, the deposits of which are
insured by the Federal Deposit Insurance Corporation and the short-term
unsecured debt obligations of which are rated "A-1+" by Standard & Poor's
and "P-1" by Moody's (including, if applicable, the Collateral Agent, the
Agent or any agent thereof acting in its commercial capacity);
(d) securities bearing interest or sold at a discount issued by any
<PAGE>
Page 27
corporation incorporated under the laws of the United States or any State
whose long-term unsecured debt obligations are assigned the highest credit
rating by each Rating Agency at the time of such investment or contractual
commitment providing for such investment; provided, however, that
-------- -------
securities issued by any particular corporation will not be Permitted
Investments to the extent that an investment therein will cause the then
outstanding principal amount of securities issued by such corporation and
held in the Collection Account and the Reserve Account to exceed 10% of the
value of Permitted Investments held in such accounts (with Permitted
Investments held in such accounts valued at par);
(e) commercial paper that (i) is payable in United States dollars and
(ii) is rated in the highest credit rating category by each Rating Agency;
(f) units of money market funds rated in the highest credit rating
category by each Rating Agency; or
(g) any other demand or time deposit, obligation, security or
investment (including, without limitation, a hedging arrangement) as may be
acceptable to the Agent, as evidenced by a writing to that effect (with a
copy to each Rating Agency).
Permitted Investments may be purchased by or through the Collateral Agent or any
of its Affiliates. All Permitted Investments shall be held in the name of the
Collateral Agent. No Permitted Investment shall have a "r" highlighter affixed
to its S&P rating.
"Person" means an individual, partnership, corporation (including a
------
business trust), joint stock company, trust, unincorporated association, joint
venture, government or any agency or political subdivision thereof or any other
entity.
"Portfolio Default" means the occurrence, with respect to securities issued
-----------------
on or after April 1, 1998, which are backed by automobile installment sales
contracts ("receivables") and with respect to which AFS or any Affiliate of AFS
is the servicer, of an "event of default" or similar event under any applicable
enhancement or insurance agreement or an "amortization event", "pay-out event"
or similar event under any applicable sale and servicing agreement or indenture
which event has the potential consequence, inter alia, under the related
----- ----
agreements of requiring the acceleration or early amortization of the related
securities or permitting the realization upon the receivables and/or other
collateral.
"Portfolio Net Losses" means with respect to any Collection Period, the
--------------------
aggregate amount of gross charge-offs of Receivables in the Servicing Portfolio
during such Collection Period net of all Recoveries with respect to any such
Receivables (including post-disposition amounts received on previously charged-
off Receivables), calculated in a manner consistent with the calculations of net
losses in AmeriCredit Corp.'s quarterly
<PAGE>
Page 28
report on Form 10-Q for the period ended September 30, 1998.
"Portfolio Net Loss Ratio" means, as of any date, a fraction, expressed as
------------------------
a percentage, the numerator of which equals the product of 2.0 times the sum of
the Portfolio Net Losses for the six (6) preceding Collection Periods and the
denominator of which equals the Average Servicing Portfolio as of such date. The
Portfolio Net Loss Ratio shall be determined on each Determination Date and
shall remain in effect until recalculated on the next succeeding Determination
Date.
"Portfolio Trigger Event" means the occurrence of a "trigger event" or any
-----------------------
other event however denominated, with respect to securities issued on or after
April 1, 1998, which are backed by automobile installment sales contracts
("receivables") and with respect to which AFS or any Affiliate of AFS is the
servicer, which event is based on the performance of such receivables and has
the potential consequence under the related agreements of causing the amount
required to be retained in any related spread or reserve account or the level of
any other enhancement to be increased.
"Pre-Computed Receivable" means any Receivable under which the portion of a
-----------------------
payment allocable to earned interest (which may be referred to in the related
Receivable as an add-on finance charge) and the portion allocable to the Amount
Financed is determined according to the sum of periodic balances or the sum of
monthly balances or any equivalent method or are monthly actuarial receivables.
"Principal Balance" means, with respect to any Receivable, as of any date,
-----------------
the sum of the Amount Financed minus that portion of all amounts received by the
-----
Servicer with respect to such Receivable on or prior to such date and allocable
to principal in accordance with the terms of such Receivable minus any Cram Down
-----
Loss in respect of such Receivable plus the accrued and unpaid interest on such
----
Receivable.
"Purchase Amount" means, with respect to a Warranty Receivable purchased by
---------------
the Servicer or AFS pursuant to Section 8.7 or under the Purchase Agreement or a
-----------
Receivable which the Servicer purchased pursuant to Section 8.4, the Principal
-----------
Balance of such Receivable (including all accrued and unpaid interest on such
Receivable) as of the date of such purchase.
"Purchase Agreement" means the Master Receivables Purchase Agreement dated
------------------
as of the date hereof by and among the Borrower and the Sellers, including all
permitted amendments, modifications and supplements thereto.
"Purchase Date" has the meaning assigned to the term "Receivables Transfer
-------------
Date" in the Purchase Agreement.
"Rating Agencies" means Standard & Poor's and Moody's.
---------------
<PAGE>
Page 29
"Receivable" means any right to payment from a Person, and includes without
----------
limitation the right to payment of any interest or finance charges and other
obligations of such Person with respect thereto.
"Receivable File" means, with respect to each Receivable in the Total
---------------
Receivables Pool, the documents, electronic entries, instruments and writings
set forth in clause (p) of the definition of "Eligible Receivable" herein.
----------
"Record Date" means, with respect to any Determination Date or Distribution
-----------
Date, the last day of the immediately preceding calendar month.
"Recoveries" means, with respect to any Defaulted Receivable, monies
----------
collected in respect thereof (other than Scheduled Payments collected from the
related Obligor which cause such Receivable to be no longer a Defaulted
Receivable), from whatever source, during any Collection Period, net of the sum
of any reasonable expenses incurred by the Servicer in connection with the
collection, repossession and disposition of the related Financed Vehicle and any
amounts required by law to be remitted to the related Obligor; provided that
--------
Recoveries with respect to any Defaulted Receivable shall in no event be less
than zero.
"Registrar of Titles" means, with respect to any state, the governmental
-------------------
agency or body responsible for the registration of, and the issuance of
certificates of title relating to, motor vehicles and liens thereon.
"Replacement Person" has the meaning set forth in Section 6.4.
------------------ -----------
"Required Holdback" means, as of any date, the sum of (i) the greater of
-----------------
(a) the product of (1) the Required Percentage and (2) the sum of (x) the
Aggregate Outstanding Principal Balance of Eligible Receivables in the Total
Receivables Pool on such date plus (y) the amount on deposit in the Collection
----
Account on such date plus (z) the amount on deposit in the Lockbox Account on
----
such date, and (b) $2,000,000, provided that the amount set forth in this clause
--------
(b) shall be deemed to be zero during any period that no Advances are
outstanding; plus (ii) the Deficiency Amount for such date.
----
"Required Lenders" means, at any time, (a) Noncommitted Lenders holding
----------------
Advances aggregating at least 51% of all Advances then owing to Noncommitted
Lenders, and (b) Committed Lenders having Commitments or, if no Commitments are
in effect, Advances, aggregating at least 51% of the Total Commitment or
Advances owing to Committed Lenders (as the case may be).
"Required Percentage" means 12%.
-------------------
"Required Reserve Account Amount" means, on any date, the greater of (a)
-------------------------------
the
<PAGE>
Page 30
Minimum Reserve Account Amount and (b) the product of the Stated Percentage in
effect on such date and the sum of (i) the aggregate unpaid principal amount of
all Advances on such date plus (ii) the Required Holdback in effect on such
----
date.
"Reserve Account" means the account designated as the Reserve Account in,
---------------
and which is established and maintained pursuant to, Section 8.17(b).
---------------
"Reserve Account Shortfall" means, as of any date, an amount (if positive)
-------------------------
equal to the Required Reserve Account Amount on such date minus the amount on
-----
deposit in the Reserve Account on such date.
"Responsible Officer" means, with respect to any Person that is not an
-------------------
individual, the President, any Vice-President or Assistant Vice-President,
Corporate Trust Officer, the Treasurer or Assistant Treasurer, or the Controller
or Assistant Controller or Warehouse Manager of such Person, or any other
officer or employee having similar functions.
"Schedule of Receivables" has the meaning ascribed to such term in the
-----------------------
Purchase Agreement.
"Scheduled Payment" means, with respect to any Receivable, the periodic
-----------------
payment set forth in such Receivable (excluding, however, any portion of such
payment that represents late payment charges and payments in respect of taxes,
licenses or similar items).
"Secured Parties" means, collectively, the Agent, each Lender, the
---------------
Collateral Agent, each other Affected Person and their respective successors and
assigns.
"Security Agreement" means the Security and Collateral Agent Agreement
------------------
dated as of the date hereof among the Agent, the Collateral Agent, AFS and the
Borrower, including all amendments, modifications and supplements thereto.
"Seller" means each of AFS, AFC and ACC in its capacity as a Seller under
------
the Purchase Agreement, and "Sellers" means, collectively, AFS, AFC and ACC,
-------
each in such capacity.
"Servicer" means AFS or, as applicable, any successor servicer appointed
--------
pursuant to Section 13.3.
------------
"Servicer Delinquency Ratio" means, as of the last day of a Collection
--------------------------
Period, the ratio, expressed as a percentage, computed by dividing (i) the
Aggregate Outstanding Principal Balance on such date of each Receivable in the
Servicing Portfolio which is a Delinquent Receivable or a Receivable for which
the Financed Vehicle has been repossessed and the proceeds thereof have not been
realized by the Servicer by (ii) the
<PAGE>
Page 31
Aggregate Outstanding Principal Balance of all Receivables in the Servicing
Portfolio on the last day of such Collection Period.
"Servicer Extension Notice" has the meaning set forth in Section 8.14.
------------------------- ------------
"Servicer Termination Event" has the meaning set forth in Section 13.1.
-------------------------- ------------
"Servicer's Certificate" means, with respect to each Determination Date, a
----------------------
certificate, completed by and executed on behalf of the Servicer, in accordance
with Section 8.9, substantially in the form attached hereto as Exhibit E.
----------- ---------
"Servicing Fee" means, as of any Distribution Date, an amount equal to the
-------------
product of (i) 1/12 of the Servicing Fee Rate and (ii) the average Aggregate
Outstanding Principal Balance of Receivables in the Total Receivables Pool for
each day during the Collection Period immediately preceding such Distribution
Date.
"Servicing Fee Rate" means 2%.
------------------
"Servicing Portfolio" means as of any date, the Aggregate Outstanding
-------------------
Principal Balance of all Receivables (whether or not thereafter sold or disposed
of) which are serviced by the Servicer or any of its Affiliates at such time,
calculated in a manner consistent with the calculation of the components of
Average Servicing Portfolio in the most recent Form 10-K or Form 10-Q of
AmeriCredit Corp.
"Servicing Procedures and Credit Manual" means AFS's written credit,
--------------------------------------
servicing and collections procedures delivered to the Agent prior to the Closing
Date, as amended from time to time in accordance herewith.
"Settlement Date" means, with respect to any Advance, (a) each Distribution
---------------
Date, (b) at the option of the Agent or the Borrower, the last day of the
current Fixed Period of such Advance or (c) the date on which the Borrower shall
prepay such Advance pursuant to Section 4.1 hereof.
-----------
"Simple Interest Method" means the method of allocating a fixed level
----------------------
payment on an obligation between principal and interest, pursuant to which the
portion of such payment that is allocated to interest is equal to the product of
the fixed rate of interest on such obligation multiplied by the period of time
(expressed as a fraction of a year, based on the actual number of days in the
calendar month and 365 days in the calendar year) elapsed since the preceding
payment under the obligation was made.
"Simple Interest Receivable" means a Receivable under which the portion of
--------------------------
the payment allocable to interest and the portion allocable to principal is
determined in accordance with the Simple Interest Method.
<PAGE>
Page 32
"Standard & Poor's" or "S&P" means Standard & Poor's Ratings Services, a
----------------- ---
division of The McGraw-Hill Companies, Inc.
"Stated Percentage" means, on any date, the sum of (a) 4% plus (b) the
----------------- ----
lesser of (x) 6% and (y) the aggregate of each Percentage Add-On in effect on
------
such date (if any) as computed below:
If on such date (i) a Level I Trigger Event exists, the Percentage
Add-On related thereto shall be 2%; (ii) a Level II Trigger Event exists,
the Percentage Add-On related thereto shall be 6%; (iii) a Level III
Trigger Event exists, the Percentage Add-On related thereto shall be 2%;
(iv) a Level IV Trigger Event exits, the Percentage Add-On related thereto
shall be 6%; (v) a Level V Trigger Event exists, the Percentage Add-On
related thereto shall be 2%; and (vi) a Level VI Trigger Event exists, the
Percentage Add-On related thereto shall be 6%.
"Structured Lender" shall mean any Person whose principal business consists
-----------------
of issuing commercial paper, medium term notes or other securities to fund its
acquisition and maintenance of receivables, accounts, instruments, chattel
paper, general intangibles and other similar assets or interests therein and
which is required by any nationally recognized rating agency which is rating
such securities to obtain from its principal debtors an agreement such as that
set forth in Section 18.12(a) of this Agreement in order to maintain such
----------------
rating.
"Subsidiary" means, with respect to any Person, a corporation of which such
----------
Person and/or its other Subsidiaries own, directly or indirectly, such number of
outstanding shares as have more than 50% of the ordinary voting power for the
election of directors.
"Supplement" has the meaning ascribed to such term in the Purchase
----------
Agreement.
"Take-Out Securitization" means (a) a financing transaction of any sort
-----------------------
undertaken by the Borrower or any Affiliate of the Borrower secured, directly or
indirectly, by any Transferred Receivables or (b) any other asset
securitization, secured loans or similar transactions involving any Transferred
Receivables or any beneficial interest therein.
"Tangible Net Worth" means, with respect to any Person, the net worth of
------------------
such Person calculated in accordance with GAAP after subtracting therefrom the
aggregate amount of such Person's intangible assets, including, without
limitation, goodwill, franchises, licenses, patents, trademarks, tradenames,
copyrights and service marks.
"Taxes" has the meaning set forth in Section 5.1(b).
----- --------------
"Total Commitment" means the aggregate of the Commitments of all Committed
----------------
<PAGE>
Page 33
Lenders.
"Total Expense Percentage" means, as of any date, the sum of (a) the
------------------------
Servicing Fee Rate plus (b) the Custodial Fee Rate plus (c) the Backup
---- ----
Servicing/Collateral Agent Fee Rate plus (d) the Facility Fee Rate.
----
"Total Receivables Pool" means all Receivables owned by the Borrower.
----------------------
"Transaction Documents" means this Agreement, the Note, the Fee Letter, the
---------------------
Custodian Agreement, the Purchase Agreement, the Lockbox Agreement, the
Intercreditor Agreement, the Security Agreement, the Trust Agreement, each
Interest Rate Hedge, and the other documents to be executed and delivered in
connection with this Agreement.
"Transferred Receivable" means each Receivable which appears on any
----------------------
Schedule of Receivables at any time hereafter submitted to the Borrower pursuant
to the Purchase Agreement, whether purchased by the Borrower or contributed to
the capital of the Borrower. Once a Receivable appears on any such Schedule of
Receivables it shall remain a Transferred Receivable; provided, however, that
-------- -------
any Receivable that is released from the Lien granted to the Collateral Agent
for the benefit of the Secured Parties pursuant to Section 9.5(f) shall not be a
--------------
"Transferred Receivable" after such Receivable is so released.
----------------------
"Transfer Request" has the meaning set forth in Section 9.5(a).
---------------- --------------
"Transition Costs" means any documented expenses and allocated cost of
----------------
personnel reasonably incurred by the Backup Servicer in connection with a
transfer of servicing from the Servicer to the Backup Servicer as the successor
Servicer in an amount not to exceed $100,000.
"Trust Agreement" means the Trust Agreement dated as of the date hereof
---------------
among AFS, AFC and Bankers Trust (Delaware), as Trustee, which, inter alia,
----- ----
establishes the Borrower, including all permitted amendments, modifications and
supplements thereto.
"Trust Trustee" means the Trustee under the Trust Agreement.
-------------
"UCC" means the Uniform Commercial Code as from time to time in effect in
---
the applicable jurisdiction or jurisdictions.
"Unmatured Facility Termination Event" means any event that, if it
------------------------------------
continues uncured, will, with lapse of time or notice or lapse of time and
notice, constitute a Facility Termination Event.
"Usage Fee" has the meaning set forth in the Fee Letter.
---------
<PAGE>
Page 34
"Warranty Receivable" means, with respect to any Collection Period, a
-------------------
Receivable that the Servicer or AFS has become obligated to purchase or
repurchase pursuant to Section 8.7 or under the Purchase Agreement.
-----------
"Wells Fargo" means Wells Fargo Bank (Texas), National Association.
-----------
"written" or "in writing" (and other variations thereof) means any form of
------- ----------
written communication or a communication by means of telex, telecopier device,
telegraph or cable.
"Year 2000 Compliant" means, with regard to any Person, that all software,
-------------------
embedded microchips, and other processing capabilities utilized by, and material
to the business or servicing operations or financial condition of such Person,
are able to interpret and manipulate data involving all calendar dates correctly
and without causing any abnormal ending scenario, including dates in and after
the year 2000.
"Yield" means, with respect to any period, the sum of the following:
-----
(i) without duplication of the amount set forth in the immediately
following clause (ii), the sum of the daily interest accrued on the
commercial paper issued by each Noncommitted Lender to fund or maintain any
Advance outstanding on each day during such period equal, for any such day,
to the product of (x) the outstanding principal amount of such commercial
paper on such day, (y) the applicable Commercial Paper Rate and (z) 1/360,
plus
----
(ii) if any commercial paper has been issued by a Noncommitted Lender
during such period to fund the interest component on any other commercial
paper maturing on a date other than a Settlement Date, the sum of the daily
interest accrued on such additional commercial paper outstanding on each
day during such period equal, for any such day, to the product of (x) the
outstanding principal amount of such additional commercial paper on such
day, (y) the applicable Commercial Paper Rate and (z) 1/360, plus
----
(iii) the sum of the daily interest accrued on Advances funded or
maintained other than through the issuance of commercial paper on each day
during such period equal, for any such day, to the product of (x) the
outstanding principal amount of such Advances on such day, (y) the Bank
Rate and (z) the applicable computation period determined in accordance
with Section 3.5 of this Agreement, minus
----------- -----
(iv) the amount of Yield paid on all Interim Distribution Dates
during such period.
<PAGE>
Page 35
Notwithstanding clauses (i), (ii) and (iii) above, after the date any principal
amount of any Advance is due and payable (whether on the Facility Termination
Date, upon acceleration or otherwise) or after any other monetary obligation of
the Borrower or the Servicer arising under this Agreement shall become due and
payable, the Borrower or the Servicer, as the case may be, shall pay (to the
extent permitted by law, if in respect of any unpaid amounts representing Yield)
Yield (after as well as before judgment) on such amounts, payable on demand, at
a rate per annum equal to the Default Rate.
--- -----
SECTION 1.2 Other Definitional Provisions.
-----------------------------
(a) Unless otherwise specified therein, all terms defined in this
Agreement have the meanings as so defined herein when used in the Note or any
other Transaction Document, certificate, report or other document made or
delivered pursuant hereto.
(b) Each term defined in the singular form in Section 1.1 or elsewhere in
-----------
this Agreement shall mean the plural thereof when the plural form of such term
is used in this Agreement, the Note or any other Transaction Document,
certificate, report or other document made or delivered pursuant hereto, and
each term defined in the plural form in Section 1.1 shall mean the singular
-----------
thereof when the singular form of such term is used herein or therein.
(c) The words "hereof," "herein," "hereunder" and similar terms when used
in this Agreement shall refer to this agreement as a whole and not to any
particular provision of this Agreement, and article, section, subsection,
schedule and exhibit references herein are references to articles, sections,
subsections, schedules and exhibits to this Agreement unless otherwise
specified.
ARTICLE II
THE FACILITY, ADVANCE PROCEDURES AND NOTE
SECTION 2.1 Facility. On the terms and subject to the conditions set forth
--------
in this Agreement, each Noncommitted Lender may, in its sole discretion, make
Advances (to the extent of its Available Purchase Amount) to the Borrower on a
revolving basis from time to time during the period commencing on the Effective
Date and ending on the Facility Termination Date, in each case in such amounts
as may be requested by the Borrower pursuant to Section 2.2. If on any day there
-----------
shall be more than one Noncommitted Lender, any Advance requested by the
Borrower on such day shall be allocated among the Noncommitted Lenders pro rata
--- ----
on the basis of their respective Noncommitted Percentages and each Noncommitted
Lender may, in its sole and absolute discretion, determine whether to make an
Advance in its allocated amount. If a Noncommitted Lender elects not to make a
requested Advance, each of the Committed Lenders with respect to such
Noncommitted Lender shall make Advances (in an
<PAGE>
Page 36
aggregate amount equal to the requested Advance) to the Borrower (to the extent
of the unutilized Commitment of each such Committed Lender and pro rata among
--- ----
such Committed Lenders in accordance with their respective Adjusted Commitment
Percentages) on a revolving basis from time to time during the period commencing
on the Effective Date and ending on the Commitment Termination Date. The lending
arrangement made available to the Borrower pursuant to the preceding sentences
of this Section 2.1 is herein called the "Facility". The aggregate principal
----------- --------
amount of all Advances from time to time outstanding hereunder shall not exceed
the lesser of (a) the Facility Limit and (b) the Borrowing Base. In addition,
under no circumstances shall any Lender make any Advance if after giving effect
thereto the aggregate outstanding principal balance of all Advances owing to
such Lender would exceed (i) if such Lender is a Noncommitted Lender, its
Maximum Purchase Amount or (ii) if such Lender is a Committed Lender, its
applicable Commitment. Within the limits of the Facility, the Borrower may
borrow, prepay and reborrow under this Section 2.1.
-----------
SECTION 2.2 Advance Procedures. The Borrower may request an Advance
------------------
hereunder by giving notice to the Agent and the Collateral Agent of a proposed
Advance not later than 1:00 P.M., New York time, one Business Day prior to the
proposed date of such Advance. Each such notice (herein called an "Advance
-------
Request") shall be in the form of Exhibit A and shall include the date and
------- ---------
amount of such proposed Advance, the desired duration of the Fixed Period for
such Advance and the Supplement and Schedule of Receivables setting forth the
information required therein with respect to the Receivables to be acquired by
the Borrower with the proceeds of the proposed Advance. Any Advance Request
given by the Borrower pursuant to this Section 2.2 shall be irrevocable and
-----------
binding on the Borrower.
SECTION 2.3 Funding. Subject to the satisfaction of the conditions
-------
precedent set forth in Article VII with respect to such Advance and the
-----------
limitations set forth in Section 2.1, the Lenders shall make the proceeds of
-----------
such requested Advance available as follows: first, to the extent the amount on