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SECURITY AND COLLATERAL AGENT AGREEMENT
AMONG
CREDIT SUISSE FIRST BOSTON,
NEW YORK BRANCH,
AS AGENT,
BANKERS TRUST COMPANY,
AS LENDER COLLATERAL AGENT
AMERICREDIT FINANCIAL SERVICES, INC.,
AND
AFS FUNDING CORP.,
AS BORROWER
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Dated as of October 14, 1999
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TABLE OF CONTENTS
PAGE
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SECTION 1 DEFINITIONS............................................................................................1
SECTION 2 APPOINTMENT OF LENDER COLLATERAL AGENT.................................................................7
SECTION 3 BORROWER'S GRANT OF SECURITY INTEREST..................................................................8
SECTION 4 BORROWER REMAINS LIABLE................................................................................9
SECTION 5 COVENANTS OF ACFS REGARDING THE COLLATERAL.............................................................9
SECTION 6 DISTRIBUTIONS.........................................................................................12
SECTION 7 THE COLLATERAL ACCOUNT; INVESTMENTS...................................................................17
SECTION 8 FEES AND EXPENSES.....................................................................................19
SECTION 9 REPRESENTATIONS AND WARRANTIES OF THE LENDER COLLATERAL AGENT.........................................20
SECTION 10 RESIGNATION BY AND REMOVAL OF THE LENDER COLLATERAL AGENT; SUCCESSOR LENDER COLLATERAL AGENT.........20
SECTION 11 INDEMNITY............................................................................................21
SECTION 12 LIMITATIONS OF LIABILITY.............................................................................21
SECTION 13 TERM OF AGREEMENT....................................................................................23
SECTION 14 NOTICES..............................................................................................23
SECTION 15 GOVERNING LAW; VENUE; CONSENT TO JURISDICTION........................................................24
SECTION 16 ASSIGNMENT...........................................................................................24
SECTION 17 COUNTERPARTS.........................................................................................24
SECTION 18 HEADINGS.............................................................................................24
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TABLE OF CONTENTS
(continued)
SECTION 19 THIRD PARTY BENEFICIARIES............................................................................24
SECTION 20 CERTAIN REMEDIES.....................................................................................24
SECTION 21 LIMITED LIABILITY OF LENDER COLLATERAL AGENT.........................................................26
SECTION 22 SUBORDINATION........................................................................................26
SECTION 23 AMENDMENTS...........................................................................................27
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SECURITY AND COLLATERAL AGENT AGREEMENT
SECURITY AND COLLATERAL AGENT AGREEMENT dated as of October 14, 1999
among CREDIT SUISSE FIRST BOSTON, NEW YORK BRANCH, as administrative agent for
the Lenders (in such capacity, the "AGENT"), BANKERS TRUST COMPANY, a New York
banking corporation (including any successor thereto, the "LENDER COLLATERAL
AGENT"), AFS FUNDING CORP., a Nevada corporation (the "BORROWER"), and
AMERICREDIT FINANCIAL SERVICES, INC., a Delaware corporation ("ACFS").
W I T N E S S E T H :
WHEREAS, the Borrower has sold and contemplates selling, from time to
time, pools of receivables to various trusts which have issued or may issue
various series of notes or certificates (each a "SERIES") which will be repaid
from the proceeds of, or represent an interest in, such pools of receivables;
WHEREAS, a spread account has been, and it is contemplated that in
accordance with the terms of each future Series, shall be, established into
which the Borrower and/or AFS Funding Trust, a Delaware business trust which is
owned by the Borrower (the "SPREAD ACCOUNT DEPOSITOR") has deposited, or shall
be obligated to deposit, certain moneys on or about the closing date for each
Series (each an "INITIAL SPREAD ACCOUNT DEPOSIT", and collectively, the "INITIAL
SPREAD ACCOUNT DEPOSITS");
WHEREAS, in order to reduce the amount which the Spread Account
Depositor is obligated to advance as an Initial Spread Account Deposit with
respect to certain future Series, the Borrower intends to deposit certain moneys
on or about the closing date for each such Series (each a "RCCA DEPOSIT", and
collectively, the "RCCA DEPOSITS") in a replacement cash collateral account
(each, an "RCCA", and collectively, the "RCCAS") to provide credit support to
FSA (as defined herein) in connection with the insurance policies it has issued
and will issue with respect to the Series;
WHEREAS, in order to fund the RCCAs, the Borrower has requested that
the Lenders establish a revolving line of credit to the Borrower providing for
Borrowings of up to $225,000,000 in the aggregate at any time outstanding;
WHEREAS, upon the terms and conditions contained in the Credit
Agreement (as hereinafter defined) and the other Transaction Agreements, the
Lenders are willing to provide such a line of credit to the Borrower; and
WHEREAS, ACFS will service each Series.
NOW, THEREFORE, ACFS, the Borrower, the Lender Collateral Agent and the
Agent, intending to be legally bound, hereby agree as follows:
Section 1 DEFINITIONS. For all purposes of this Agreement,
the following terms shall have the meanings set forth below and the following
terms which are defined in the
Uniform Commercial Code in effect in the State of New York from time to time
are used herein as so defined: Accounts, Chattel Paper, Documents, Equipment,
Farm Products, General Intangibles, Instruments, Inventory and Proceeds.
Capitalized terms used herein but not otherwise defined shall have the
meanings set forth in the Credit Agreement.
"ACCRUAL PERIOD" shall mean, with respect to any
Distribution Date, the period from and including the previous Distribution
Date (or, in the case of the first Distribution Date, from and including the
Closing Date) through and including the day preceding such Distribution Date.
"ACFS" has the meaning specified in the PREAMBLE.
"ADVERSE CLAIM" has the meaning set forth in Section
8-102(a)(1) of Revised Article 8.
"AGENT" has the meaning specified in the PREAMBLE.
"AGREEMENT" means this Security and Collateral Agent
Agreement, as it may be amended, supplemented or otherwise modified from time
to time.
"AVERAGE DAILY FUNDED PERCENTAGE" means, with respect to
any Distribution Date, the average of the Funded Percentages with respect to
each day in the Accrual Period ending on such Distribution Date.
"BORROWER" has the meaning specified in the PREAMBLE.
"BORROWER ACCOUNT COLLATERAL" has the meaning set forth in
Section 3.
"BORROWER AGREEMENTS" has the meaning set forth in Section 4.
"BORROWER COLLATERAL" has the meaning set forth in Section 3.
"CAPPED EXPENSES" means, at any time, costs and expenses
due at such time (if any) to the Lender Collateral Agent under the
Transaction Documents not in excess of $20,000 with respect to any
Distribution Date.
"CERTIFICATED SECURITY" has the meaning set forth in
Section 8-102(a)(4) of Revised Article 8.
"CLEARING CORPORATION" has the meaning set forth in Section
8-102(a)(5) of Revised Article 8.
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"CLEARING CORPORATION SECURITY" means a "Security" (as
defined in Section 8-102(a)(15) of Revised Article 8) that is in the physical
possession of, or registered in the name of, a Clearing Corporation or its
nominee.
"COLLATERAL ACCOUNT" has the meaning set forth in Section 7.
"CONTROL": with respect to any Federal Book Entry Security,
the LENDER COLLATERAL AGENT shall have obtained control if:
(i) the Lender Collateral Agent is a participant in the book
entry system maintained by the Federal Reserve Bank that is acting as
fiscal agent for the issuer of such Federal Book Entry Security, and
such Federal Reserve Bank has indicated by book entry that such Federal
Book Entry Security has been credited to the Lender Collateral Agent's
securities account in such book entry system; or
(ii) the Lender Collateral Agent is registered solely in its
name on the records of a Securities Intermediary as the person having a
Security Entitlement in respect of such Federal Book Entry Security
against such Securities Intermediary; and (b) the Securities
Intermediary is a participant in the book entry system maintained by
the Federal Reserve Bank that is acting as fiscal agent for the issuer
of such Federal Book Entry Security; and (c) such Federal Reserve Bank
has indicated by book entry that such Federal Book Entry Security has
been credited to the Securities Intermediary's securities account in
such book entry system.
"CREDIT AGREEMENT" means the Credit Agreement, dated as of
October 14, 1999, among the Borrower, the Contingent Obligors, each
Noncommitted Lender and Committed Lender party thereto, the Lender Collateral
Agent and the Agent, as amended, extended or otherwise modified from time to
time.
"DELIVERY": when used with respect to Borrower Account
Collateral, "Delivery" means:
(i) with respect to Physical Property, transfer thereof to the
Lender Collateral Agent or its nominee or custodian by physical
delivery to the Lender Collateral Agent or its nominee or custodian
endorsed to, or registered in the name of, the Lender Collateral Agent
or its nominee or custodian or endorsed in blank;
(ii) with respect to a Certificated Security that will, upon
compliance with the following procedures, be held by a person located
in a Revised Article 8 Jurisdiction, transfer of such Certificated
Security to the Lender Collateral Agent or its nominee or custodian by
physical delivery to the Lender Collateral Agent or its nominee or
custodian, endorsed to, or registered in the name of, the Lender
Collateral Agent or its nominee or custodian or endorsed in blank; and
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(iii) with respect to any such Borrower Account Collateral
that constitutes an Uncertificated Security (including any investments
in money market mutual funds, but excluding any Federal Book Entry
Security) and where the issuer thereof is organized in a Revised
Article 8 Jurisdiction, (A) registration of the Lender Collateral Agent
as the registered owner by the issuer, or (B) satisfaction of the
requirements for obtaining "control" pursuant to Section 8-106(c)(2) of
Revised Article 8.
"DESIGNATED SERIES AMOUNT AVAILABLE" means, with respect to
any Distribution Date and any Designated Series, the sum of (a) the
Designated Series Investment Earnings for such Designated Series for such
Distribution Date, (b) the Designated Series Spread Account Principal Release
for such Designated Series for such Distribution Date and (c) the Designated
Series Premium Disbursement.
"DESIGNATED SERIES INVESTMENT EARNINGS" means, with respect
to any Distribution Date and any Designated Series, any investment income
earned on amounts on deposit in the related Designated Series RCCA since the
prior Distribution Date (or the Closing Date in the case of the first
Distribution Date).
"DESIGNATED SERIES PREMIUM DISBURSEMENT" means, with
respect to any Distribution Date and any Designated Series, any amount
distributed pursuant to the related Designated Series Transaction Documents
in respect of Facility Fees relating to the Borrowings used to fund the RCCA
for such Series.
"DESIGNATED SERIES SPREAD ACCOUNT PRINCIPAL RELEASE" means,
with respect to any Distribution Date and any Designated Series, any amounts
other than Designated Series Investment Earnings paid or payable to the
Borrower from amounts on deposit in the related Designated Series Spread
Account or RCCA since the prior Distribution Date (or the Closing Date in the
case of the first Distribution Date).
"ELIGIBLE ACCOUNT" means (i) a segregated trust account
maintained with the Lender Collateral Agent or (ii) a segregated direct
deposit account 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 have been approved by the Agent, acting in its
discretion, by written notice to ACFS.
"ENTITLEMENT ORDER" has the meaning set forth in Section
8-102(a)(8) of Revised Article 8.
"FEDERAL BOOK ENTRY SECURITY" means an obligation (i)
issued by the U.S. Treasury, the Federal Home Loan Mortgage Corporation or
the Federal National Mortgage Association, or any other direct obligation of,
or obligation fully guaranteed as to timely payment
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or principal and interest by, the United States of America, that is a
book-entry security held through the Federal Reserve System pursuant to
Federal book entry regulations, and (ii) the perfection of a security
interest in which is governed pursuant to federal regulations by Revised
Article 8.
"FINANCIAL ASSET" has the meaning set forth in Section
8-102(a)(9) of Revised Article 8.
"FUNDED PERCENTAGE" means, with respect to any day, the
percentage equivalent of a fraction, the numerator of which is the aggregate
outstanding principal amount on deposit in all RCCAs and the denominator of
which is the aggregate outstanding principal amount of all Advances on such
day.
"INCREASED COSTS" means collectively, any increased cost,
loss or liability owing to the Agent and/or any other Affected Party under
Sections 2.11, 2.12 and 2.14 of the Credit Agreement.
"INDEMNITY AMOUNTS" means, collectively, all indemnity
obligations and other amounts owing to the Agent, any Lender and/or any other
Indemnified Party under Section 8.04 of the Credit Agreement (to the extent
not paid by the Borrower).
"INITIAL SPREAD ACCOUNT DEPOSIT" has the meaning set forth
in the recitals.
"INSTRUMENTS" has the meaning set forth in Section
9-105(l)(i) of Revised Article 8.
"INVESTMENT PROPERTY" has the meaning set forth in Section
9-115(1)(f) of Revised Article 8.
"LENDER COLLATERAL AGENT" has the meaning specified in the
PREAMBLE.
"NEGATIVE CARRY" means, with respect to any Distribution
Date, the excess if any, of (i) the product of (A) the cost of funds with
respect to all Advances accrued during the Accrual Period ending on such
Distribution Date, i.e., (x) with respect to Base Rate Advances, the Federal
Funds Rate, (y) with respect to Eurodollar Advances, LIBOR and (z) with
respect to Commercial Paper Rate Advances, the cost of obtaining funds in the
commercial paper market to fund such advances, and (B) the Average Daily
Funded Percentage with respect to such Distribution Date over (ii) all
Designated Series Investment Earnings with respect to such Distribution Date
and with respect to all Designated Series.
"NONALLOCATED SERIES DISTRIBUTIONS" means, with respect to
any Distribution Date, (i) all amounts paid or payable to the Borrower since
the prior Distribution Date (or the Closing Date in the case of the first
Distribution Date) with respect to all Series other than Designated
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Series as to which any Designated Series Borrowing is outstanding, including,
without limitation, any investment income earned on amounts on deposit in the
related Spread Accounts and RCCAs during such period, amounts released from
such Spread Accounts and RCCAs during such period, fees or other remuneration
payable to the Borrower pursuant to the Borrower Agreements relating to such
Series, and all property and monies deliverable to the Borrower upon
termination of any such Series and (ii) all amounts (other than Designated
Series Amounts Available) paid or payable to the Borrower since the prior
Distribution Date (or the Closing Date in the case of the first Distribution
Date) with respect to Designated Series as to which any Designated Series
Borrowing is outstanding, including, without limitation, fees or other
remuneration payable to the Borrower pursuant to the Borrower Agreements
relating to such Series, and all property and monies deliverable to the
Borrower upon termination of any such Series.
"NONALLOCATED AMOUNT AVAILABLE" means, with respect to any
Distribution Date, the sum of (a) Nonallocated Series Distributions and (b) all
Designated Series Amounts Available to be treated as a part of Nonallocated
Amount Available pursuant to Section 6(a).
"OBLIGATIONS" means all obligations (monetary or otherwise)
of the Borrower to the Lenders, the Lender Collateral Agent, the Agent or any
other Affected Party arising under or in connection with this Agreement, the
Credit Agreement and each other Transaction Document.
"PHYSICAL PROPERTY" means personal property constituting
Instruments, including bankers' acceptances, commercial paper, negotiable
certificates of deposit and other obligations that are susceptible of
physical delivery.
"RCCA" has the meaning set forth in the recitals.
"RCCA ACCOUNT COLLATERAL" means all of the following:
(1) Each RCCA established pursuant to the
RCCA Agreement and all funds held in such RCCA and
all certificates and instruments, if any, from time
to time representing or evidencing such RCCA or such
funds,
(2) all investments from time to time of
amounts in each RCCA established pursuant to the RCCA
Agreement, and all certificates and instruments, if
any, from time to time representing or evidencing
such investments,
(3) all notes, certificates of deposit and
other instruments from time to time delivered to or
otherwise possessed by the RCCA Agent or any Secured
Party or any assignee or agent on behalf of the RCCA
Agent or any Secured Party in substitution for or in
addition to any of the then
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existing RCCA Account Collateral, and
(4) all interest, dividends, cash,
instruments and other property from time to time
received, receivable or otherwise distributed in
respect of or in exchange for any and all of the then
existing RCCA Account Collateral.
"RCCA DEPOSIT" has the meaning set forth in the recitals.
"REVISED ARTICLE 8" means UCC, Revised Article 8,
Investment Securities (with conforming and miscellaneous amendments to
Articles 1, 3, 4, 5, 9 and 10), 1994 Official Text, as adopted by the
American Law Institute and the National Conference of Commissioners on
Uniform State Laws. Unless the context requires otherwise, "Revised Article
8" means such version in the form in which it is adopted in the applicable
jurisdiction.
"REVISED ARTICLE 8 JURISDICTION" means a jurisdiction which
has adopted Revised Article 8.
"SECURED PARTIES" means, collectively, the Agent, each
Lender, the LENDER COLLATERAL AGENT, each other Affected Party and their
respective successors and assigns.
"SECURITIES ACCOUNT" has the meaning set forth in Section
8-501(a) of Revised Article 8.
"SECURITY ENTITLEMENT" has the meaning set forth in Section
8-102(a)(17) of Revised Article 8.
"SECURITIES INTERMEDIARY" has the meaning set forth in
Section 8-102(a)(14) of Revised Article 8.
"SERIES" has the meaning set forth in the recitals.
"UCC" means the Uniform Commercial Code as in effect in
each relevant jurisdiction.
"UNCERTIFICATED SECURITY" has the meaning set forth in
Section 8-102(a)(18) of Revised Article 8.
Section 2 APPOINTMENT OF LENDER COLLATERAL AGENT. Subject
to the terms and conditions hereof, the Agent, on behalf of the Lenders and
other Secured Parties, hereby appoints Bankers Trust Company, as Lender
Collateral Agent hereunder, and Bankers Trust Company hereby accepts such
appointment.
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Section 3 BORROWER'S GRANT OF SECURITY INTEREST. Subject
only to the security interest of the collateral agent specified in the Spread
Account Agreement for the benefit of the Designated Series Insurers and the
related security holders, as more specifically set forth in the Subordination
Agreement, as security for the prompt payment or performance in full when
due, whether at stated maturity, by acceleration or otherwise, of all
Obligations (including, without limitation, Advances, interest and other
amounts at any time owing under the Credit Agreement), the Borrower hereby
assigns and pledges to the Lender Collateral Agent, for the benefit of the
Secured Parties, and grants to the Lender Collateral Agent, for the benefit
of the Secured Parties, a perfected security interest in and lien upon, all
of the Borrower's right, title and interest in and to the following, in each
case whether now or hereafter existing or in which Borrower now has or
hereafter acquires an interest and wherever the same may be located
(collectively, the "BORROWER COLLATERAL"):
(a) the beneficial interest in the Spread Account
Depositor represented by the Class A Certificate
issued pursuant to the Trust Agreement;
(b) all rights of the Borrower to profits, distributions
and proceeds from the beneficial interest described
in (a);
(c) all of the following (the "BORROWER ACCOUNT
COLLATERAL"):
(1) the Collateral Account and all funds
held in the Collateral Account and all certificates
and instruments, if any, from time to time
representing or evidencing the Collateral Account or
such funds,
(2) all investments from time to time of
amounts in the Collateral Account, and all
certificates and instruments, if any, from time to
time representing or evidencing such investments,
(3) all Clearing Corporation Securities,
Certificated Securities, Uncertificated Securities,
Federal Book-Entry Securities, Security Entitlements,
Investment Property, notes, certificates of deposit
and other instruments from time to time delivered to
or otherwise possessed by the Lender Collateral
Agent or any Secured Party or any assignee, agent or
Securities Intermediary on behalf of the Lender
Collateral Agent or any Secured Party in substitution
for or in addition to any of the then existing
Borrower Account Collateral, and
(4) all interest, dividends, cash,
instruments and other property from time to time
received, receivable or otherwise distributed in
respect of or in exchange for any and all of the then
existing Borrower Account Collateral;
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(d) all additional property that may from time to time
hereafter be granted and pledged by the Borrower or
by anyone on its behalf under this Agreement,
including the deposit with the Lender Collateral
Agent of additional moneys by the Borrower;
(e) all Security Accounts, Accounts, all Chattel Paper,
all Documents, all Equipment, all General
Intangibles, all Instruments and all Inventory of the
Borrower;
(f) the RCCA Account Collateral;
(g) all Proceeds, accessions, substitutions, rents and
profits of any and all of the foregoing Borrower
Collateral (including proceeds that constitute
property of the types described in PARAGRAPHS (a)
through (f) above) and, to the extent not otherwise
included, all payments under insurance (whether or
not the Lender Collateral Agent or a Secured Party or
any assignee or agent on behalf of the Lender
Collateral Agent or a Secured Party is the loss payee
thereof) or any indemnity, warranty or guaranty
payable by reason of loss or damage to or otherwise
with respect to any of the foregoing Borrower
Collateral.
Section 4 BORROWER REMAINS LIABLE. Notwithstanding anything
in this Agreement, (a) except to the extent of ACFS's duties under the Credit
Agreement and this Agreement, the Borrower shall remain liable under the RCCA
Agreement and the Series Transaction Documents (the "BORROWER AGREEMENTS") to
perform all of its duties and obligations thereunder to the same extent as if
this Agreement had not been executed, (b) the exercise by a Secured Party or
the Lender Collateral Agent of any of its rights under this Agreement or the
Credit Agreement shall not release the Borrower or ACFS from any of their
respective duties or obligations under the Borrower Agreements or other
agreements included in the Borrower Collateral, (c) the Agent, the Secured
Parties and the Lender Collateral Agent shall not have any obligation or
liability under the Borrower Agreements or other agreements included in the
Borrower Collateral by reason of this Agreement or the Credit Agreement, and
(d) neither the Agent, the Lender Collateral Agent nor any of the Secured
Parties shall be obligated to perform any of the obligations or duties of the
Borrower or ACFS under the Borrower Agreements or other agreements included
in the Borrower Collateral or to take any action to collect or enforce any
claim for payment assigned under this Agreement.
Section 5 COVENANTS OF ACFS REGARDING THE COLLATERAL.
(a) OFFICES AND RECORDS. ACFS shall cause the Borrower to keep its
chief place of business and chief executive offices and the office where it
keeps its records at the location specified in SECTION 4.01 of the Credit
Agreement or, upon 30 days prior written notice to the Agent and the Lender
Collateral Agent, at such other location in a jurisdiction where all action
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required by SECTION 5(d) shall have been taken with respect to the Borrower
Collateral. ACFS will permit, and will cause the Borrower to permit,
representatives of the Agent and the Lender Collateral Agent at any time and
from time to time during normal business hours (i) to inspect and make copies
of and abstracts from such records, and (ii) to visit the properties of the
Borrower or ACFS utilized in connection with the servicing of the Series for
the purpose of examining such records, and to discuss matters relating to the
Series or the Borrower's or ACFS' performance under this Agreement and the
other Transaction Documents with any officer or employee of the Borrower or
ACFS having knowledge of such matters, PROVIDED that the Person seeking such
information has given the Borrower or ACFS prior written notice of its intent
to inspect or visit and PROVIDED, FURTHER that no such Person shall so
inspect or visit the Borrower or ACFS more frequently than once per quarter
unless a Facility Maturity Event has occurred and is continuing. ACFS agrees
to render, and to cause the Borrower to render, to the Agent and the Lender
Collateral Agent such clerical and other assistance as may be reasonably
requested with regard to the foregoing. ACFS shall cause the Borrower not to
change its name, identity or corporate structure to such an extent that any
financing statement filed by the Lender Collateral Agent in connection with
this Agreement would become seriously misleading, unless it shall have given
the Lender Collateral Agent and the Agent at least 30 days' prior written
notice of such change.
(b) PERFORMANCE OF BORROWER AGREEMENTS. ACFS shall cause the
Borrower to (i) perform and observe all the terms and provisions of the
Borrower Agreements to be performed or observed by it, maintain the Borrower
Agreements in full force and effect, enforce the Borrower Agreements in
accordance with their terms and take all such action to such end as may be
from time to time requested by the Agent and (ii) upon request of the Agent,
make to any other party to the BORROWER AGREEMENTS such demands and requests
for information and reports or for action as the Borrower is entitled to make
under the Borrower Agreements.
(c) NOTICE OF MATERIAL ADVERSE CLAIM. ACFS shall advise, and shall
cause the Borrower to advise, the Agent and the Lender Collateral Agent
promptly, in writing and in reasonable detail, (i) of any material Lien,
other than a Permitted Lien, known to it made or asserted against any of the
Borrower Collateral, and (ii) of the occurrence of any event which would have
a material adverse effect on the aggregate value of the Borrower Collateral
or on the assignments and security interests granted by the Borrower in this
Agreement.
(d) Further Assurances; Financing Statements.
(1) ACFS agrees that at any time and from
time to time, at its expense, it shall promptly
execute and deliver, or cause the Borrower to execute
and deliver, all further instruments and documents,
and take all reasonable further action, that may be
necessary or desirable or required by applicable law
or that the Lender Collateral Agent or the Agent may
request to perfect and protect the assignments and
security interests granted or purported to be granted
by this Agreement or to enable the
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Lender Collateral Agent or any of the Secured Parties
to exercise and enforce its rights and remedies under
this Agreement with respect to any Borrower
Collateral. Without limiting the generality of the
foregoing, ACFS shall cause the Borrower to execute
and file such financing or continuation statements,
or amendments thereto, and such other instruments or
notices as may be necessary or desirable or required
by applicable law or that the Lender Collateral Agent
or the Agent may reasonably request to protect and
preserve the assignments and security interests
granted by this Agreement. On the Closing Date, ACFS
will cause the Borrower to deliver to Bank One, N.A.
all certificates representing a beneficial interest
in the Spread Account Depositor together with stock
powers executed in blank.
(2) The Borrower and each Secured Party
hereby severally authorize the Lender Collateral
Agent, upon receipt of written direction from the
Agent, to execute for filing by the Agent one or more
financing or continuation statements, and amendments
thereto, relating to all or any part of the Borrower
Collateral without the signature of the Borrower or
the Secured Parties where permitted by law. A carbon,
photographic or other reproduction of this Agreement
or any financing statement covering the Borrower
Collateral or any part thereof shall be sufficient as
a financing statement where permitted by law. The
Agent will promptly send to the Borrower any
financing or continuation statements thereto which it
files without the signature of the Borrower and will
promptly send to each Secured Party and the Borrower,
as the case may be, any financing or continuation
statements thereto which it files without the
signature of the Secured Parties except, in the case
of filings of copies of this Agreement as financing
statements, the Agent will promptly send the Borrower
and each Secured Party, as the case may be, the
filing or recordation information with respect
thereto.
(3) ACFS shall furnish, and shall cause the
Borrower to furnish, to the Lender Collateral Agent
and the Agent from time to time such statements and
schedules further identifying and describing the
Borrower Collateral and such other reports in
connection with the Borrower Collateral as the Agent
may reasonably request, all in reasonable detail.
(e) OPINIONS AS TO COLLATERAL. Not more than 90 days nor less than
30 days prior to (i) each May 1, commencing May 1, 2000, during the term of
this Agreement and (ii) each date on which the Borrower proposes to take any
action contemplated by Section 6.05 of the RCCA Agreement the Borrower shall,
at its own cost and expense, furnish to the Agent and the Lender Collateral
Agent an opinion of counsel either (a) stating that, in the opinion of such
counsel, such
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action has been taken with respect to the execution and filing of any
financing statements and continuation statements and other actions as are
necessary to perfect, maintain and protect the lien and security interest of
the Lender Collateral Agent (and the priority thereof), with respect to the
Borrower Collateral against all creditors of and purchasers from the Borrower
and reciting the details of such action, or (b) stating that, in the opinion
of such counsel, no such action is necessary to maintain such perfected lien
and security interest. Such opinion of counsel shall further describe each
execution and filing of any financing statements and continuation statements
and such other actions as will, in the opinion of such counsel, be required
to perfect, maintain and protect the lien and security interest of the Lender
Collateral Agent with respect to the Borrower Collateral against all
creditors of and purchasers from the Borrower for a period, specified in such
opinion, continuing until a date not earlier than eighteen months from the
date of such opinion.
(f) NON-INTERFERENCE. The Borrower shall not (i) waive or alter any
of its rights under the Borrower Collateral (or any agreement or instrument
relating thereto) without the prior written consent of the Agent; or (ii)
fail to pay any tax, assessment, charge or fee levied or assessed against the
Borrower Collateral, or to defend any action, if such failure to pay or
defend may adversely affect the priority or enforceability of the Borrower's
right, title or interest in and to the Borrower Collateral or the Lender
Collateral Agent's lien on, and security interest in, the Borrower
Collateral; or (iii) take any action, or fail to take any action, if such
action or failure to take action, will interfere with the enforcement of any
rights hereunder.
Section 6 DISTRIBUTIONS.
(a) On each Distribution Date, the Lender Collateral Agent shall
distribute, in accordance with written instructions from ACFS delivered to
the Lender Collateral Agent at least one (1) Business Day prior to such
Distribution Date:
(i) from the Designated Series Premium Disbursement, if any,
for such Distribution Date for each Designated Series as to which any
Designated Series Borrowing remains outstanding, (A) FIRST, to the
Agent, on behalf of itself and the Liquidity Lenders and the Conduit
Lenders, the Liquidity/Conduit Lenders Facility Fees accrued with
respect to the related Designated Series Borrowing during the Accrual
Period with respect to such Distribution Date (and any
Liquidity/Conduit Lenders Facility Fees accrued with respect to the
related Designated Series Borrowing with respect to any prior Accrual
Period to the extent not paid pursuant to this Section 6(a)(i)(A) on a
prior Distribution Date), (B) SECOND, to the Agent, on behalf of itself
and the Lenders, the Credit Support Providers Facility Fees and the
Non-Contingent Lenders Facility Fees accrued with respect to the
related Designated Series Borrowing during the Accrual Period with
respect to such Distribution Date (and any Credit Support Providers
Facility Fees and Non-Contingent Lenders Facility Fees accrued with
respect to the related Designated Series Borrowing with respect to any
prior Accrual Period to the extent not paid pursuant to this Section
6(a)(i)(B) on a prior Distribution Date) and
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(C) THIRD, to the extent of any remaining Designated Series Premium
Disbursement, to be treated as part of the Nonallocated Amount
Available and applied pursuant to Section 6(b) or (c);
(ii) from the Designated Series Investment Earnings, if any,
for such Distribution Date for each Designated Series as to which any
Designated Series Borrowing remains outstanding, (A) FIRST, to the
Agent, on behalf of itself and the Lenders, the interest accrued with
respect to the related Designated Series Borrowing during the Accrual
Period with respect to such Distribution Date (and any interest accrued
with respect to the related Designated Series Borrowing with respect to
any prior Accrual Period to the extent not paid pursuant to this
Section 6(a)(ii) on a prior Distribution Date) and (B) SECOND, to the
extent of any remaining Designated Series Investment Earnings, to be
treated as part of the Nonallocated Amount Available and applied
pursuant to Section 6(b) or (c); and
(iii) from the Designated Series Spread Account Principal
Release, if any, for such Distribution Date for each Designated Series
as to which any Designated Series Borrowing remains outstanding, (A)
FIRST, to the Agent, on behalf of itself and the Lenders, to reduce
such Designated Series Borrowing by the amount of such Designated
Series Spread Account Principal Release with respect to such Designated
Series with respect to such Distribution Date and (B) SECOND, to the
extent of any remaining Designated Series Spread Account Principal
Release, to be treated as part of the Nonallocated Amount Available and
applied pursuant to Section 6(b) or (c).
(b) On each Distribution Date prior to the Facility Maturity Date or
an Event of Early Amortization, the Lender Collateral Agent shall distribute,
from the amounts available in the Collateral Account, in accordance with
written instructions from ACFS delivered to the Lender Collateral Agent at
least one (1) Business Day prior to such Distribution Date, the Nonallocated
Amount Available, if any, for such Distribution Date in the following order
of priority:
(i) FIRST, to the extent not previously paid by ACFS or
otherwise by or on behalf of the Borrower to the Lender Collateral
Agent, the Capped Expenses;
(ii) SECOND, to the extent not paid on such Distribution Date
pursuant to Section 6(a)(i)(A), to the Agent, on behalf of itself and
the Liquidity Lender and the Conduit Lenders, the Liquidity/Conduit
Lenders Facility Fees (as defined in the Fee Letter) accrued with
respect to all Designated Series Borrowings during the Accrual Period
with respect to such Distribution Date (and any Liquidity/Conduit
Lenders Facility Fees accrued with respect to all Designated Series
Borrowings with respect to any prior Accrual Period to the extent not
paid pursuant to Section 6(a)(i)(A) or this Section 6(b)(ii) on a prior
Distribution Date);
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(iii) THIRD, to the extent not paid on such Distribution Date
pursuant to Section 6(a)(ii), to the Agent, on behalf of itself and the
Liquidity Lenders and Conduit Lenders, the interest (other than
Negative Carry) accrued with respect to all Designated Series
Borrowings held by such Lenders during the Accrual Period with respect
to such Distribution Date (and any interest (other than Negative Carry)
accrued with respect to all Designated Series Borrowings held by such
Lenders with respect to any prior Accrual Period to the extent not paid
pursuant to Section 6(a)(ii) or this Section 6(b)(iii) on a prior
Distribution Date) , PROVIDED that for purposes of determining the
interest payable pursuant to this clause THIRD only, interest accrued
on Base Rate Advances shall be deemed to have accrued at the Federal
Funds Rate rather than the Alternate Base Rate and interest accrued on
Advances at the Default Rate shall be deemed to have accrued at (x)
with respect to Base Rate Advances, the Federal Funds Rate, (y) with
respect to Eurodollar Rate Advances, LIBOR, and (z) with respect to
Commercial Paper Rate Advances, the cost of obtaining funds in the
commercial paper market to fund such Advances;
(iv) FOURTH, to the extent not paid on such Distribution Date
pursuant to Section 6(a)(i)(B), to the Agent, on behalf of itself and
the Lenders, the Credit Support Provider Facility Fees and
Non-Contingent Lenders Facility Fees (each as defined in the Fee
Letter) accrued with respect to all Designated Series Borrowings during
the Accrual Period with respect to such Distribution Date (and any
Credit Support Provider Facility Fees and Non-Contingent Lenders
Facility Fees accrued with respect to all Designated Series Borrowings
with respect to any prior Accrual Period to the extent not paid
pursuant to Section 6(a)(i)(B) or this Section 6(b)(iv) on a prior
Distribution Date);
(v) FIFTH, to the extent not paid on such Distribution Date
pursuant to Section 6(a)(ii) or 6(b)(iii), to the Agent, on behalf of
itself and the Lenders, the interest (other than Negative Carry)
accrued with respect to all Designated Series Borrowings during the
Accrual Period with respect to such Distribution Date (and any interest
(other than Negative Carry) accrued with respect to all Designated
Series Borrowings with respect to any prior Accrual Period to the
extent not paid pursuant to Section 6(a)(ii), Section 6(b)(iii) or this
Section 6(b)(v) on a prior Distribution Date);
(vi) SIXTH, to the Agent, on behalf of itself and the Lenders,
the Commitment Fees accrued during the Accrual Period with respect to
such Distribution Date (and any Commitment Fees accrued with respect to
any prior Accrual Period to the extent not paid pursuant to Section
6(b)(vi) on a prior Distribution Date);
(vii) SEVENTH, to the Agent, on behalf of the Lenders, with
respect to each Designated Series as to which the aggregate amount of
funds in the RCCA Account with respect to such Series is less than the
outstanding principal amount of the Designated Series Borrowing to fund
such RCCA Account, to reduce the principal amount of such Designated
Series by the amount of such deficiency;
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(viii) EIGHTH, to the Agent, on behalf of the Lenders, with
respect to each Designated Series as to which the entire outstanding
principal amount of any Designated Series Borrowing has not been repaid
in full on the related Designated Series Amortization Date, the amount
due with respect thereto pursuant to Section 2.05(d) of the Credit
Agreement;
(ix) NINTH, to the Agent, on behalf of itself and the Lenders,
any Negative Carry accrued with respect to all Designated Series
Borrowings during the Accrual Period with respect to such Distribution
Date (and any Negative Carry accrued with respect to all Designated
Series Borrowings with respect to any prior Accrual Period to the
extent not paid pursuant to Section 6(b)(x) on a prior Distribution
Date);
(x) TENTH, to the Agent, for the benefit of the Affected
Parties, any Increased Costs then due and owing, and, to the extent not
previously paid by or on behalf of the Borrower, to each Indemnified
Party, any Indemnity Amounts then due and owing to each such
Indemnified Party;
(xi) ELEVENTH, to the extent not previously paid pursuant to
clause FIRST above, to the Lender Collateral Agent, any costs and
expenses due to the Lender Collateral Agent under the Transaction
Documents; and
(xii) TWELFTH, to the Borrower, the remaining portion of the
Nonallocated Amount Available.
(c) On each Distribution Date on or after the Facility Maturity Date
or an Event of Early Amortization, the Lender Collateral Agent shall
distribute, from the amounts available in the Collateral Account, in
accordance with written instructions from ACFS (or if ACFS is no longer the
Servicer with respect to any Series, the Administrative Agent) delivered to
the Lender Collateral Agent at least one (1) Business Day prior to such
Distribution Date, or, if not delivered, upon the Agent's written direction,
the Nonallocated Amount Available, if any, for such Distribution Date in the
following order of priority:
(i) FIRST, to the extent not previously paid by ACFS or
otherwise by or on behalf of the Borrower to the Lender Collateral
Agent, the Capped Expenses and, to the extent not previously paid by
ACFS or otherwise by or on behalf of the Borrower to the Lender
Collateral Agent, any costs and expenses incurred by the Lender
Collateral Agent in foreclosing on the Borrower Collateral at the
direction of the Agent;
(ii) SECOND, to the extent not paid on such Distribution Date
pursuant to Section 6(a)(i)(A), to the Agent, on behalf of itself and
the Liquidity Lender and the Conduit Lenders, the Liquidity/Conduit
Lenders Facility Fees (as defined in the Fee Letter) accrued with
respect to all Designated Series Borrowings during the Accrual Period
with respect to such Distribution Date (and any Liquidity/Conduit
Lenders
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Facility Fees accrued with respect to all Designated Series Borrowings
with respect to any prior Accrual Period to the extent not paid
pursuant to Section 6(a)(i)(A), Section 6(b)(ii) or this Section
6(c)(ii) on a prior Distribution Date);
(iii) THIRD, to the extent not paid on such Distribution Date
pursuant to Section 6(a)(ii), to the Agent, on behalf of itself and the
Liquidity Lenders and Conduit Lenders, the interest (other than
Negative Carry) accrued with respect to all Designated Series
Borrowings held by such Lenders during the Accrual Period with respect
to such Distribution Date (and any interest (other than Negative Carry)
accrued with respect to all Designated Series Borrowings held by such
Lenders with respect to any prior Accrual Period to the extent not paid
pursuant to Section 6(a)(ii), Section 6(b)(iii) or this Section
6(c)(iii) on a prior Distribution Date) , PROVIDED that for purposes of
determining the interest payable pursuant to this clause THIRD only,
interest accrued on Base Rate Advances shall be deemed to have accrued
at the Federal Funds Rate rather than the Alternate Base Rate and
interest accrued on Advances at the Default Rate shall be deemed to
have accrued at(x) with respect to Base Rate Advances, the Federal
Funds Rate, (y) with respect to Eurodollar Rate Advances, LIBOR, and
(z) with respect to Commercial Paper Rate Advances, the cost of
obtaining funds in the commercial paper market to fund such Advances;
(iv) FOURTH, to the extent not paid on such Distribution Date
pursuant to Section 6(a)(i)(B), to the Agent, on behalf of itself and
the Lenders, the Credit Support Provider Facility Fees and
Non-Contingent Lenders Facility Fees (each as defined in the Fee
Letter) accrued with respect to all Designated Series Borrowings during
the Accrual Period with respect to such Distribution Date (and any
Credit Support Provider Facility Fees and Non-Contingent Lenders
Facility Fees accrued with respect to all Designated Series Borrowings
with respect to any prior Accrual Period to the extent not paid
pursuant to Section 6(a)(i)(B), Section 6(b)(iv) or this Section
6(b)(iv) on a prior Distribution Date);
(v) FIFTH, to the extent not paid on such Distribution Date
pursuant to Section 6(a)(ii) or 6(b)(iii), to the Agent, on behalf of
itself and the Lenders, the interest (other than Negative Carry)
accrued with respect to all Designated Series Borrowings during the
Accrual Period with respect to such Distribution Date (and any interest
(other than Negative Carry) accrued with respect to all Designated
Series Borrowings with respect to any prior Accrual Period to the
extent not paid pursuant to Section 6(a)(ii), Section 6(b)(v), Section
6(c)(iii) or this Section 6(c)(v) on a prior Distribution Date);
(vi) SIXTH, to the Agent, on behalf of itself and the Lenders,
the Commitment Fees accrued during the Accrual Period with respect to
such Distribution Date (and any Commitment Fees accrued with respect to
any prior Accrual Period to the extent not paid pursuant to Section
6(b)(vi) or this Section 6(c)(vi) on a prior Distribution Date);
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(vii) SEVENTH, to the Agent, on behalf of the Lenders, the
principal amount of all outstanding Borrowings;
(viii) EIGHTH, to the Agent, on behalf of itself and the
Lenders, any Negative CarrY accrued with respect to all Designated
Series Borrowings during the Accrual Period with respect to such
Distribution Date (and any Negative Carry) accrued with respect to all
Designated Series Borrowings with respect to any prior Accrual Period
to the extent not paid pursuant to Section 6(b)(ix) or this Section
6(c)(ix) on a prior Distribution Date);
(ix) NINTH, to the Agent, for the benefit of the Affected
Parties, any Increased Costs then due and owing, and, to the extent not
previously paid by or on behalf of the Borrower, to each Indemnified
Party, any Indemnity Amounts then due and owing to each such
Indemnified Party;
(x) TENTH, to the extent not previously paid pursuant to
clause FIRST above, to the Lender Collateral Agent, any costs and
expenses due to the Lender Collateral Agent under the Transaction
Documents; and
(xi) ELEVENTH, to the Borrower, the remaining portion of the
Nonallocated Amount Available.
Section 7 THE COLLATERAL ACCOUNT; INVESTMENTS.
(a) On or prior to the Closing Date, the Borrower shall establish an
account (the "COLLATERAL ACCOUNT") in the name of the Lender Collateral Agent
for the benefit of the Secured Parties. The Collateral Account shall be an
Eligible Account which is a segregated non-interest bearing trust account
initially established with the Lender Collateral Agent. If at any time the
Collateral Account ceases to be an Eligible Account, the Agent may direct the
Lender Collateral Agent in writing to transfer such account to another
institution such that such account shall meet the requirements of an Eligible
Account. ACFS shall cause amounts to be deposited into the Collateral Account
as set forth in Section 5.01(y) of the Credit Agreement.
(b) All amounts held in the Collateral Account shall, to the extent
permitted by applicable laws, rules and regulations, be invested by the
Lender Collateral Agent, as directed by ACFS in writing (or, if ACFS fails to
provide such direction, amounts in the Collateral Account shall be invested
in investments described in CLAUSE (d) of the definition of Cash
Equivalents), in Cash Equivalents that mature not later than one Business Day
prior to the next succeeding Distribution Date. The amounts held in the
Collateral Account on the Business Day prior to each Distribution Date shall
be invested by the Lender Collateral Agent in overnight or next-day funds in
such Cash Equivalents reasonably available to the Lender Collateral Agent as
may be acceptable to ACFS (which shall initially be the Lender Collateral
Agent's Institutional Treasury Money Market Fund and, from time to time,
shall include such other proprietary Cash
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Equivalents of the Lender Collateral Agent) for the period of time from the
Business Day prior to the Distribution Date until such Distribution Date. All
income or other gains from investment of moneys on deposit in any such
account shall be deposited by the Lender Collateral Agent in the applicable
account immediately upon receipt. The taxpayer identification number
associated with the Collateral Account shall be that of the Borrower and the
Borrower shall report for Federal, state and local income tax purposes, the
income, if any, represented by the Collateral Account. If any amounts are
needed for disbursement from the Collateral Account and sufficient uninvested
funds are not available therein to make such disbursement, the Lender
Collateral Agent shall cause to be sold or otherwise converted to cash a
sufficient amount of the investments in such account to make such
disbursement upon the written direction of ACFS or, if ACFS shall fail to
give such direction, upon the written direction of the Agent. Any such
written direction shall certify that any such investment is authorized by
this SECTION 7. Investments in Cash Equivalents shall be made in the name of
the Lender Collateral Agent on behalf of the Secured Parties, and, except as
specifically required above, such investments shall not be sold or disposed
of prior to their maturity. Each and every investment of funds in any of the
Collateral Account shall be made in Cash Equivalents held by a financial
institution that is a Securities Intermediary in an account pursuant to an
agreement with such financial institution, governed by the law of any
jurisdiction which has adopted Revised Article 8, that requires such
financial institution to (A) credit such Cash Equivalents to a Securities
Account exclusively in the name of the Lender Collateral Agent, (B) comply
with Entitlement Orders pertaining to such account originated by the Lender
Collateral Agent without further consent of the Borrower, (C) not enter into
any agreement which grants "control" (as defined in Section 8-106 of Revised
Article 8) of such account (or any interest or property therein) to any
Person other than the Lender Collateral Agent, (D) subordinate any security
interest, banker's lien, right of setoff or other similar right which such
financial institution may have in such account to the interest of the Lender
Collateral Agent and (E) expressly treat each item of property as a Financial
Asset and such account as a Securities Account.
Subject to the other provisions hereof, the Lender Collateral Agent
shall have sole control over each such investment and the income thereon, and
any certificate or other instrument evidencing any such investment, if any,
shall be delivered directly to the Lender Collateral Agent or its agent,
together with each document of transfer, if any, necessary to transfer title
and a Security Entitlement free from any Adverse Claim to such investment to
the Lender Collateral Agent in a manner that complies with this SECTION 7.
All interest, dividends, gains upon sale and other income from, or earnings
on, investments of funds in the Collateral Account shall be deposited in the
Collateral Account and distributed pursuant to SECTION 6 hereof. If the
Lender Collateral Agent is given written instructions to invest funds in the
Collateral Account in investments other than investments of the type
described in CLAUSE (d) of the definition of "Cash Equivalents", the Person
giving such instructions agrees to assist the Lender Collateral Agent in
complying with the requirements herein with respect to such investments.
(c) With respect to the Borrower Account Collateral:
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(i) any Borrower Account Collateral that is held in deposit
accounts shall be held solely in the name of the Lender Collateral
Agent in accounts which satisfy clause (ii) of the definition of
Eligible Account; each such deposit account shall be subject to the
exclusive custody, dominion and control of the Lender Collateral Agent,
and the Lender Collateral Agent shall have sole signature authority
with respect thereto;
(ii) any Borrower Account Collateral that constitutes Physical
Property shall be delivered to the Lender Collateral Agent in
accordance with paragraph (i) of the definition of "Delivery" and shall
be held, pending maturity or disposition, solely by the Lender
Collateral Agent;
(iii) any Borrower Account Collateral that constitutes a
Certificated Security that will, upon compliance with the procedures
set forth in paragraph (ii) of the definition of "Delivery," be held by
a Person located in a Revised Article 8 Jurisdiction shall be delivered
to the Lender Collateral Agent in accordance with paragraph (ii) of the
definition of "Delivery" and shall be held, pending maturity or
disposition, solely by the Lender Collateral Agent;
(iv) any such Borrower Account Collateral that constitutes an
Uncertificated Security (including any investments in money market
mutual funds, but excluding any Federal Book Entry Security) and where
the issuer thereof is organized in a Revised Article 8 Jurisdiction,
shall be delivered to the Lender Collateral Agent in accordance with
paragraph (iii) of the definition of "Delivery" and shall be
maintained, pending maturity or disposition, through continued
registration of the Lender Collateral Agent's (or its nominee's)
ownership of such security; and
(v) with respect to any Borrower Account Collateral that
constitutes a Federal Book Entry Security, the Lender Collateral Agent
shall maintain and obtain Control over such property.
Effective upon Delivery of any Borrower Account Collateral in the form of
Physical Property, book-entry securities or uncertificated securities, the
Lender Collateral Agent shall be deemed to have represented that it has
purchased such Borrower Account Collateral for value, in good faith and
without actual notice of any adverse claim thereto.
(d) The Borrower will cause all proceeds of Borrower Collateral to be
deposited in the Collateral Account and will promptly deposit any amounts it
receives in respect thereof in the Collateral Account.
Section 8 FEES AND EXPENSES. ACFS covenants and agrees to
pay to the Lender Collateral Agent from time to time, and the Lender
Collateral Agent shall be entitled to, the fees and expenses agreed in
writing between ACFS and the Lender Collateral Agent, and will further pay or
reimburse the Lender Collateral Agent upon its request for all reasonable
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expenses, disbursements and advances incurred or made by the Lender
Collateral Agent in accordance with any of the provisions hereof or any other
documents executed in connection herewith (including the reasonable
compensation and the reasonable expenses and disbursements of its counsel and
of all persons not regularly in its employ). The obligations of ACFS under
this Section 8 to compensate the Lender Collateral Agent and to pay or
reimburse the Lender Collateral Agent for reasonable expenses, disbursements
and advances shall survive the satisfaction and discharge of this Agreement
or the earlier resignation or removal of the Lender Collateral Agent. When
the Lender Collateral Agent incurs expenses or renders services in connection
with proceedings under the Bankruptcy Code or any other applicable federal or
state bankruptcy, insolvency or other similar law, or in case of any other
comparable judicial proceedings relative to the Borrower, such expenses
(including the fees and expenses of its counsel and agents) and the
compensation for such services are intended to constitute expenses of
administration under any bankruptcy law or law relating to creditors rights
generally.
Section 9 REPRESENTATIONS AND WARRANTIES OF THE LENDER
COLLATERAL AGENT. The Lender Collateral Agent Lender Collateral Agent
represents and warrants as of the date hereof that:
(a) It is a banking corporation, validly existing and in good
standing under the laws of the State of New York;
(b) It has full power, authority and legal right to execute, deliver
and perform this Agreement and the Credit Agreement and has taken all
necessary action to authorize the execution, delivery and performance by it
of this Agreement and the Credit Agreement;
(c) The execution, delivery and performance by it of this Agreement
and the Credit Agreement do not violate any provision of its corporate
charter or by-laws;
(d) This Agreement and the Credit Agreement have been duly
authorized, executed and delivered by it and each constitutes its legal,
valid and binding agreement, enforceable in accordance with its terms, except
as enforceability may be limited by bankruptcy, insolvency reorganization or
other similar laws affecting the enforcement of creditors' rights generally
and by general principles of equity.
Section 10 RESIGNATION BY AND REMOVAL OF THE LENDER
COLLATERAL AGENT; SUCCESSOR LENDER COLLATERAL AGENT.
(a) The Lender Collateral Agent may at any time resign and terminate
its obligations under this Agreement upon at least 60 days prior written
notice to the Agent and the Borrower. No resignation shall be effective until
a successor Lender Collateral Agent shall have been appointed and accepted
its appointment. Promptly after receipt of notice of the Lender Collateral
Agent's proposed resignation, the Agent shall appoint, by written instrument,
a successor collateral agent and notify the Borrower thereof. If a successor
collateral agent is not appointed in accordance with the foregoing
procedures, the Lender Collateral Agent may petition a court of
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competent jurisdiction to appoint a successor collateral agent. One (1)
original counterpart of such instrument of appointment shall be delivered to
each of the Agent, the Lender Collateral Agent, the Borrower and the
successor collateral agent.
(b) The Agent, upon at least 60 days written notice to the Lender
Collateral Agent (or, if such removal is for cause, such 60 day period may be
decreased to no less than three Business Days by the Agent in its sole
discretion), may remove and discharge the Lender Collateral Agent (or any
successor collateral agent thereafter appointed) from the performance of its
obligations under this Agreement. A copy of such notice shall be delivered to
each other party hereto. Promptly after the giving of notice of removal of
the Lender Collateral Agent, the Agent shall appoint, by written instrument,
a successor collateral agent and notify the Borrower thereof. One (1)
original counterpart of such instrument of appointment shall be delivered to
each of the Agent, the Lender Collateral Agent, the Borrower and the
successor collateral agent. No such removal shall become effective until all
outstanding amounts due and owing to the Lender Collateral Agent are paid in
full.
(c) In the event of any such resignation or removal, the Lender
Collateral Agent shall promptly transfer to the successor collateral agent,
as directed in writing by the Agent, all accounts, funds and investments
being administered under this Agreement and shall cooperate with the Agent,
the Borrower and the successor collateral agent to facilitate the continued
perfection and priority of the Lien granted for the benefit of the Secured
Parties in the Borrower Collateral.
Section 11 INDEMNITY. ACFS agrees to indemnify and hold
harmless the Lender Collateral Agent and its directors, officers, agents and
employees against any and all claims, damages, losses, liabilities or
expenses (including, but not limited to, reasonable attorneys' fees, court
costs and costs of investigation) of any kind or nature whatsoever arising
out of or in connection with this Agreement and the Transaction Documents
that may be imposed upon, incurred by or asserted against the Lender
Collateral Agent; PROVIDED, however, that this SECTION 11 shall not relieve
the Lender Collateral Agent from liability for its willful misconduct or
gross negligence, as conclusively determined by a court of competent
jurisdiction beyond all applicable appeals. The provisions of this SECTION 11
shall survive the resignation or removal of the Lender Collateral Agent or
any successor Lender Collateral Agent and the termination of this Agreement.
Section 12 LIMITATIONS OF LIABILITY.
(a) The Lender Collateral Agent shall not be liable to the Borrower,
ACFS, the Agent, any Lender, any other Secured Party or any other Person with
respect to any action taken or not taken by it in good faith in the
performance of its obligations under this Agreement. The obligations of the
Lender Collateral Agent shall be determined solely by the express provisions
of this Agreement. No representation, warranty, covenant, agreement,
obligation or duty of the
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Lender Collateral Agent shall be implied with respect to this Agreement or
the Lender Collateral Agent's services hereunder.
(b) The Lender Collateral Agent may conclusively rely, and shall be
fully protected in acting or refraining from acting, upon and need not verify
the accuracy of (i) any oral instructions from any persons the Lender
Collateral Agent believes to be authorized to give such instructions, who
shall only be, with respect to ACFS, the Borrower and the Agent, persons the
Lender Collateral Agent believes in good faith to be duly authorized officers
thereof, and (ii) any written instruction, notice, order, request, direction,
certificate, opinion or other instrument or document believed by the Lender
Collateral Agent to be genuine and to have been signed and presented by the
proper party or parties.
(c) The Lender Collateral Agent may consult with counsel nationally
recognized in the area of commercial transactions with regard to legal
questions arising out of or in connection with this Agreement, and the advice
or opinion of such counsel shall be full and complete authorization and
protection in respect of any action taken, omitted or suffered by the Lender
Collateral Agent in reasonable reliance, in good faith, and in accordance
therewith; PROVIDED, HOWEVER, that if the Agent gives instructions to the
Lender Collateral Agent or provides an opinion of counsel selected by them,
which in either case conflicts with any such advice or opinion of counsel,
then the Lender Collateral Agent shall follow such instructions of the Agent
(unless such instructions violate the express terms of this Agreement or
violate applicable law) or such opinion of counsel selected by the Agent, and
shall be fully protected in acting or refraining to act thereon.
(d) No provision of this Agreement shall require the Lender
Collateral Agent to expend or risk its own funds or otherwise incur financial
liability in the performance of its duties under this Agreement if it shall
have reasonable grounds for believing that repayment of such funds or
adequate indemnity satisfactory to it is not assured to it.
(e) The Lender Collateral Agent may execute any of the trusts or
powers hereunder or perform any duties hereunder either directly or by or
through agents, attorneys, custodians or nominees appointed with due care,
and shall not be responsible for any willful misconduct or negligence on the
part of any agent, attorney, custodian or nominee so appointed.
(f) Whenever in the administration of the provisions of this
Agreement the Lender Collateral Agent shall deem it necessary or desirable
that a matter be proved or established prior to taking or suffering any
action to be taken hereunder, such matter (unless other evidence in respect
thereof be herein specifically prescribed) may, in the absence of gross
negligence or bad faith on the part of the Lender Collateral Agent, be deemed
to be conclusively proved and established by a certificate signed by an
officer of any of ACFS, the Borrower and the Agent, as the case may be, and
delivered to the Lender Collateral Agent and such certificate, in the absence
of gross negligence or bad faith on the part of the Lender Collateral Agent,
shall be full warrant
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to the Lender Collateral Agent for any action taken, suffered or omitted by
it under the provisions of this Agreement upon the faith thereof.
(g) The Lender Collateral Agent shall have no obligation to invest
and reinvest any cash held in the Collateral Account in the absence of timely
and specific written investment direction from ACFS or the Agent. In no event
shall the Lender Collateral Agent be liable for the selection of investments
or for investment losses incurred thereon. The Lender Collateral Agent shall
have no liability in respect of losses incurred as a result of the
liquidation of any investment prior to its stated maturity or the failure of
ACFS or the Agent to provide timely written investment direction.
(h) Any corporation into which the Lender Collateral Agent may be
merged or converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which the Lender
Collateral Agent shall be a party, or any corporation succeeding to the
business of the Lender Collateral Agent shall be the successor of the Lender
Collateral Agent hereunder without the execution or filing of any paper with
any party hereto or any further act on the part of any of the parties hereto
except where an instrument of transfer or assignment is required by law to
effect such succession, anything herein to the contrary notwithstanding.
(i) Notwithstanding anything herein or in the Transaction Documents
to the contrary, in no event shall the Lender Collateral Agent have any
obligation or liability in respect of the monitoring or maintenance of the
perfection of any security interest evidenced hereby or for the filing or
refiling or recording or rerecording of any financing or continuation
statements in respect of any such security interest.
(j) The Lender Collateral Agent shall not be deemed to have notice
of any Event of Early Amortization, Event of Early Termination or Event of
Default unless an Authorized Officer of the Lender Collateral Agent is
specifically notified in writing of such event by the Agent.
Section 13 TERM OF AGREEMENT. This Agreement shall be
terminated upon the final payment of all Obligations of the Borrower under
the Transaction Documents and the termination of any commitment of the
Lenders under the Transaction Documents.
Section 14 NOTICES. All demands, notices and
communications relating to this Agreement shall be in writing and shall be
deemed to have been duly given when received by the other party or parties at
the address shown in the Credit Agreement, whether by personal delivery,
express delivery or facsimile, or such other address as may hereafter be
furnished to the other party or parties by like notice. Any such demand,
notice or communication hereunder shall be deemed to have been received on
the date delivered to or received at the premises of the addressee.
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Section 15 GOVERNING LAW; VENUE; CONSENT TO JURISDICTION.
(A) THIS AGREEMENT SHALL BE A CONTRACT MADE UNDER AND GOVERNED BY THE
INTERNAL LAW OF THE STATE OF NEW YORK, WITHOUT REGARD TO ANY OTHERWISE
APPLICABLE CONFLICT OF LAW PRINCIPLES THEREOF (OTHER THAN SECTION 5-1401 OF
THE NEW YORK GENERAL OBLIGATIONS LAW).
(B) VENUE FOR ANY ACTION BROUGHT UNDER THIS
AGREEMENT MAY BE IN ANY NEW YORK STATE COURT OR FEDERAL DISTRICT COURT
SITTING IN NEW YORK, NEW YORK. EACH PARTY TO THIS AGREEMENT HEREBY CONSENTS
TO THE JURISDICTION OF SUCH COURT.
Section 16 ASSIGNMENT. Except as expressly permitted
herein, no party to this Agreement may assign its rights or delegate its
obligations under this Agreement without the express written consent of the
other parties.
Section 17 COUNTERPARTS. For the purpose of facilitating
the execution of this Agreement and for other purposes, this Agreement may be
executed simultaneously in any number of counterparts, each of which shall be
deemed to be an original, and together shall constitute and be one and the
same instrument.
Section 18 HEADINGS. The section headings are not part of
this Agreement and shall not be used in its interpretation.
Section 19 THIRD PARTY BENEFICIARIES. It is hereby agreed
by the parties hereto that, the Lenders and the other Secured Parties are,
and are intended to be, third party beneficiaries under this Agreement.
Section 20 CERTAIN REMEDIES.
(a) The Lender Collateral Agent shall, at the written direction of
the Agent, proceed to protect and enforce its rights and the rights of the
Secured Parties by such appropriate proceedings as the Agent shall deem most
effective to protect and enforce any such rights, whether for the specific
enforcement of any covenant or agreement in any Transaction Document or in
and of the exercise of any power granted herein, or to enforce any other
proper remedy or legal or equitable right vested in the Lender Collateral
Agent by any Transaction Document or by law.
(b) In case there shall be pending, relative to the Borrower or any
other obligor upon the Advances or any Person having or claiming an ownership
interest in the Borrower Collateral, proceedings under the Bankruptcy Code or
any other applicable federal or state bankruptcy, insolvency or other similar
law, or in case a receiver, assignee or trustee in bankruptcy or
reorganization, liquidator, sequestrator or similar official shall have been
appointed for or taken possession of the Borrower or its property or such
other obligor or Person, or in case of any
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other comparable judicial proceedings relative to the Borrower or other
obligor upon the Advances, or to the creditors of property of the Borrower or
such other obligor, the Lender Collateral Agent, irrespective of whether the
principal of any Advances shall then be due and payable as therein expressed
or by declaration or otherwise and irrespective of whether the Lender
Collateral Agent shall have made any demand pursuant to the provisions of
this Section, shall be entitled and empowered, by intervention in such
proceedings or otherwise:
(1) to file and prove a claim or claims for the whole amount
of principal and interest owing and unpaid in respect of the Advances
and to file such other papers or documents as may be necessary or
advisable in order to have the claims of the Lender Collateral Agent
(including any claim for reimbursement of all expenses and liabilities
incurred, and all advances, if any, made, by the Lender Collateral
Agent and each predecessor Lender Collateral Agent, except as a result
of gross negligence, bad faith or willful misconduct) and of each of
the other Secured Parties allowed in such proceedings;
(2) unless prohibited by applicable law and regulations, to
vote (with the consent of the Agent) on behalf of the holders of the
Advances in any election of a trustee, a standby trustee or person
performing similar functions in any such proceedings;
(3) to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute all amounts
received with respect to the claims of the Secured Parties on their
behalf; and
(4) to file such proofs of claim and other papers or documents
as may be necessary or advisable in order to have the claims of the
Lender Collateral Agent or the Secured Parties allowed in any judicial
proceedings relative to the Borrower, its creditors and its property;
and any trustee, receiver, liquidator, custodian or other similar official in
any such proceeding is hereby authorized by each of such Secured Parties to
make payments to the Lender Collateral Agent, and, in the event that the
Lender Collateral Agent and the Agent shall consent, to the making of
payments directly to such Secured Parties, to pay to the Lender Collateral
Agent such amounts as shall be sufficient to cover all reasonable expenses
and liabilities incurred, and all advances made, by the Lender Collateral
Agent and each predecessor Lender Collateral Agent except as a result of
gross negligence, bad faith or willful misconduct.
(c) Nothing herein contained shall be deemed to authorize the Lender
Collateral Agent to authorize or consent to or vote for or accept or adopt on
behalf of any Lender or other Secured Party any plan of reorganization,
arrangement, adjustment or composition affecting the Advances or the rights
of any holder thereof or to authorize the Lender Collateral Agent to vote in
respect of the claim of any Secured Party in any such proceeding except, as
aforesaid, to vote for the election of a trustee in bankruptcy or similar
person.
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(d) In any proceedings brought by the Lender Collateral Agent to
enforce the Liens under the Transaction Documents (and also any proceedings
involving the interpretation of any provision of any Transaction Document),
the Lender Collateral Agent shall be held to represent all the Secured
Parties, and it shall not be necessary to make any Secured Party a party to
any such proceedings.
(e) The Lender Collateral Agent shall, at the written direction of
the Agent, also do one or more of the following (subject to SECTION 12
HEREOF):
(i) institute proceedings in its own name and on behalf of the
Secured Parties as Lender Collateral Agent for the collection of all
amounts then payable on the Advances or under the Credit Agreement and
Fee Letter with respect thereto, whether by declaration or otherwise,
enforce any judgment obtained, and collect from the Borrower and any
other obligor upon such Advances moneys adjudged due;
(ii) institute proceedings from time to time for the complete
or partial foreclosure upon the Borrower Collateral;
(iii) exercise any remedies of a secured party under the UCC
and take any other appropriate action to protect and enforce the right
and remedies of the Lender Collateral Agent and the Secured Parties;
and
(iv) sell the Borrower Collateral or any portion thereof or
rights or interest therein, at one or more public or private sales
called and conducted in any manner permitted by law.
Section 21 LIMITED LIABILITY OF LENDER COLLATERAL AGENT.
It is expressly understood and agreed by the parties hereto that (a)
this Agreement is executed and delivered by Bankers Trust Company, not
individually or personally but solely as Lender Collateral Agent, in the
exercise of the powers and authority conferred and vested in it, (b) the
representations, undertakings and agreements herein made on the part of the
Lender Collateral Agent are made and intended not as personal
representations, undertakings and agreements by Bankers Trust Company, but
are made and intended for the purpose of binding only the Lender Collateral
Agent, and (c) under no circumstances shall Bankers Trust Company be
personally liable for the payment of any indebtedness or expenses of the
Lender Collateral Agent or be liable for the breach or failure of any
obligation, representation, warranty or covenant made or undertaken by the
Lender Collateral Agent under this Agreement.
Section 22 SUBORDINATION.
(a) Notwithstanding anything in this Agreement or in any
other Transaction Document to the contrary, all
rights and remedies of the Lenders, the
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Lender Collateral Agent, the Agent, the Secured
Parties, the Affected Parties or any of them, with
respect to the Borrower and its property, whether
hereunder, under any Transaction Document or
otherwise at law or in equity, are limited by and
subject to the terms of the Subordination Agreement.
(b) Notwithstanding anything in this Agreement or in any
other Transaction Document to the contrary, neither
Borrower nor the Spread Account Depositor shall have
any obligation or liability to the Agent, any Secured
Party, any Lender, or any Affected Party or any of
them, whether hereunder, under any Transaction
Document or otherwise at law or in equity, until the
Final Insurance Termination Date if the effect of
such obligation or liability would be to cause
Borrower or Spread Account Depositor to not be
Solvent and no Obligation shall be or become due or
payable until the later of (i) the Final Insurance
Termination Date or (ii) the date as such obligation
or liability would not cause the Borrower or the
Spread Account Depositor to not be Solvent.
(c) Notwithstanding any other provision of this Agreement
or any other Transaction Document, in the event of
any contradiction or ambiguity between the
Subordination Agreement and any other Transaction
Document, the terms of the Subordination Agreement
shall govern. All disputes with respect to matters
addressed in the Subordination Agreement shall be
determined by reference to the Subordination
Agreement exclusively and no provision of this
Agreement or any other Transaction Document should be
interpreted as altering, amending, explaining or
clarifying any provision of the Subordination
Agreement.
(d) The provisions of this Section 22 are for the benefit
of FSA and other parties to the Subordination
Agreement and, accordingly, shall survive the
termination of this Agreement. This Section 22 shall
not be amended without the written consent of FSA.
Section 23 AMENDMENTS. This Agreement may be amended in
accordance with the provisions of the Credit Agreement.
[Signature Page Follows]
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IN WITNESS WHEREOF, the parties hereto have caused their
duly authorized representatives to hereunto set their hand as of the day and
year first above written.
CREDIT SUISSE FIRST BOSTON,
NEW YORK BRANCH, as Agent
By:
--------------------------------------------
Name:
Title:
AFS FUNDING CORP.
By:
--------------------------------------------
Name:
Title:
AMERICREDIT FINANCIAL SERVICES, INC.
By:
--------------------------------------------
Name:
Title:
BANKERS TRUST COMPANY, not in its
individual capacity but solely as Lender Collateral
Agent
By:
--------------------------------------------
Name:
Title:
Signature Page to Security Agreement]
