SUBORDINATION AND INTERCREDITOR AGREEMENT
THIS SUBORDINATION AND INTERCREDITOR AGREEMENT (this "SUBORDINATION
AGREEMENT"), dated as of October 14, 1999 is made by and among (a) AFS Funding
Corp., a Nevada Corporation ("BORROWER"); (b) AFS Funding Trust, a Delaware
Business Trust ("AFSFT"); (c) the AmeriCredit 1996-C Trust, the AmeriCredit
1996-D Trust, the AmeriCredit 1997-A Trust, the AmeriCredit 1997-B Trust, the
AmeriCredit 1997-C Trust, the AmeriCredit 1997-D Trust, the AmeriCredit 1998-A
Trust, the AmeriCredit 1998-B Trust, the AmeriCredit 1998-C Trust, the
AmeriCredit 1998-D Trust, the AmeriCredit 1999-A Trust, the AmeriCredit 1999-B
Trust, the AmeriCredit 1999-C Trust (collectively, the "ISSUERS"); (d)
AmeriCredit Financial Services, Inc., a Delaware corporation ("ACFS"), (e)
AmeriCredit Management Company, a Delaware corporation ("AMC"), (f) AmeriCredit
Corp., a Texas corporation ("ACC"); (g) Bankers Trust Company, a New York
banking Corporation, not in its individual capacity, but solely in its capacity
as Lender Collateral Agent under the Security Agreement (as defined below) (the
"LENDER COLLATERAL AGENT"), (h) Bankers Trust (Delaware), a Delaware banking
corporation ("BANKERS TRUST (DELAWARE)"), not in its individual capacity, but
solely in its capacity as Owner Trustee; (i) Credit Suisse First Boston, a Swiss
banking corporation acting through its New York branch ("CSFB"), in its capacity
as Administrative Agent under the Credit Agreement (defined below), (j) those
Lenders from time to time party to the Credit Agreement (defined below)(the
"Lenders" and collectively with the Lender Collateral Agent and CSFB, the
"JUNIOR LIEN HOLDERS"); (k) Financial Security Assurance Inc., a New York stock
insurance company ("FSA"), (l) Harris Trust and Savings Bank, an Illinois
banking corporation ("Harris Trust"), LaSalle Bank National Association formerly
known as LaSalle National Bank ("LaSalle"), and Bank One N.A., (each in its
capacity as "Collateral Agent" under that certain Spread Account Agreement dated
as of December 1, 1994, (as amended and restated May 11, 1998, and as amended
and or restated from time to time thereafter) and such other entities as may be
designated as "Collateral Agent" under the Underlying Transaction Documents or
the Spread Account Agreement, together with their respective successors or
assigns, if any (collectively the "SENIOR LIEN HOLDERS"). All capitalized terms
used but not otherwise defined herein shall have the respective meanings set
forth in Appendix A attached hereto.
R E C I T A L S
A. FSA is the "Controlling Party" as that term is defined in the
Underlying Transaction Documents.
B. FSA issued and will issue insurance policies to the Senior Lien
Holders in such Senior Lien Holders' capacity as the trustee or indenture
trustee, as applicable (in such capacity, the "UNDERLYING TRUSTEE"), to
guarantee certain scheduled payments to
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holders of notes or certificates, as applicable (the "NOTEHOLDERS" or
"CERTIFICATEHOLDERS") issued by the Issuers (the "INSURER OBLIGATIONS").
C. Pursuant to that certain Credit Agreement ("CREDIT AGREEMENT")
dated as of October 14, 1999 among Borrower, ACC, ACFS, AMC, the Lenders, the
Lender Collateral Agent, and CSFB (in its capacity as Administrative Agent), the
Lenders will extend certain financial accommodations to the Borrower of up to
$225,000,000.
D. Pursuant to that certain Security and Collateral Agent Agreement
("SECURITY AGREEMENT") dated as of October 14, 1999 among CSFB (in its capacity
as "Agent"), the Lender Collateral Agent, the Borrower granted a lien on the
Borrower's right, title and interest in and to the Borrower Collateral (as such
term is defined in Section 3 of the Security Agreement) to the Lender Collateral
Agent for the benefit of the Lenders (the "JUNIOR LIEN"). The obligations of
Borrower to the Junior Lien Holders, whether under the Credit Agreement or
otherwise, are referred to herein as the "JUNIOR LOAN."
E. It is a condition precedent to the Credit Agreement that FSA
consent to the Junior Lien on the Borrower Collateral and FSA is willing to
consent solely upon and in accordance with the terms and conditions set forth
herein.
NOW, THEREFORE, in consideration of the premises and in order to
induce FSA and Senior Lien Holders to consent, the Junior Lien Holders, the
Borrower, ACC, ACFS, AMC, AFSFT, the Issuers, the Senior Lien Holders and FSA
hereby agree as follows:
ARTICLE I.
THE SUBORDINATION
1.1 AGREEMENT TO SUBORDINATE. Each Junior Lien Holder, each Issuer
and Borrower agrees that any and every lien and security interest, whether now
existing or hereinafter granted, in the Borrower Collateral in favor of or held
for the benefit of Senior Lien Holders or FSA has and shall have priority over
any lien or security interest that any Junior Lien Holder now has or may
hereafter acquire in the Borrower Collateral notwithstanding (a) any statement
or provision to the contrary, whether or not contained in any agreement,
instrument or document; (b) irrespective of the time or order of filing or
recording of financing statements, deeds of trust, mortgages or other notices of
security interests, liens or assignments granted pursuant thereto; (c)
irrespective of anything contained in any filing or agreement to which any party
hereto or its respective successors and assigns may now or hereafter be a party;
and (d) irrespective of the ordinary rules for determining priorities under the
UCC or under any other law governing the relative priorities of secured
creditors. Subject to the provisions of Section 1.2(f) and (f), the Junior Loan
and all advances made under the Credit Agreement and the other
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Transaction Documents (without regard to the application of such advances) are
hereby, and shall continue to be, subject and subordinate in lien and in
payment to: (a) the Senior Lien Holders, FSA and the Certificateholders and
Noteholders; (b) the Underlying Transaction Documents and all sums due
thereunder; and (c) all interest, premiums and all other sums due to the
Senior Lien Holders, FSA or the Certificateholders and Noteholders. Subject
to the provisions of Section 1.2(f) and (f), all of the terms, covenants and
conditions of the Transaction Documents in connection with or relating to
Borrower or Borrower Collateral are hereby, and shall continue to be,
subordinate to all of the terms, covenants and conditions of the Underlying
Transaction Documents. For the avoidance of any doubt, nothing contained in
this Subordination Agreement shall afect the rights of the Junior Lien Holders
under the Credit Agreement and the Security Agreement with respect to the
obligations of ACC, AMC, and ACFS, respectively, under the Credit Agreement
and the Security Agreement.
1.2 SUSPENSION OF REMEDIES OF JUNIOR LIEN HOLDER. For purposes of
this Subordination Agreement, the "SENIOR SECURED OBLIGATIONS" shall mean all
indebtedness and other obligations of any kind of the Borrower or payable from
the Borrower Collateral owed to each of the Underlying Trustees, the Senior Lien
Holders, FSA and the Noteholders and Certificateholders in connection with the
Underlying Transactions. Until the Senior Secured Obligations have been fully
and indefeasibly paid in full in cash and the Final Insurance Termination Date
shall have occurred:
(a) No Junior Lien Holder shall have any right to receive any
payment, dividend or other distribution from Borrower, any Issuer or any
Underlying Trustee whether from or by way of the Borrower Collateral or
otherwise, or to enforce any security interest in, foreclose, levy or execute
upon, or collect or attach the Borrower Collateral or any other assets of
Borrower, any Issuer or any Underlying Trustee, whether by private or judicial
action or otherwise except to the extent set forth in this Section 1.2 below;
(b) Each Junior Lien Holder agrees that any payments, dividends
or other distribution received from Borrower, any Issuer or any Underlying
Trustee, directly or indirectly, in violation of this Subordination Agreement,
in cash or other property, by setoff or in any other manner, whether from or by
way of the Borrower Collateral or otherwise, shall be received in trust for the
benefit of the Senior Lien Holders, FSA and the Noteholders and
Certificateholders as their interests may appear pursuant to the Underlying
Transaction Documents, shall be held in the same form in which it is received
and shall be immediately turned over to the Senior Lien Holders, FSA or the
Noteholders and Certificateholders for the benefit of the Senior Secured
Obligations as their respective interests may appear;
(c) Each Junior Lien Holder agrees not to ask, demand, take or
receive from Borrower, any Issuer or any Underlying Trustee, directly or
indirectly, in cash or other property or by setoff or in any other manner,
whether from or by way of the
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Borrower Collateral or otherwise, any payment, dividend or other distribution
except to the extent expressly set forth in this Subordination Agreement; and
(d) Each Junior Lien Holder agrees that it will not take any
action, or cause any action to be taken, which would be prejudicial to or
inconsistent with the priority position of the Senior Lien Holders, FSA or the
Certificateholders or Noteholders under this Subordination Agreement or with the
Senior Lien Holders', FSA's or Certificateholders' or Noteholders' rights under
the Underlying Transaction Documents.
(e) Each Junior Lien Holder may receive and retain any and all
amounts released to or for the account of Borrower or AFSFT in accordance with
the terms and conditions of the Underlying Transaction Documents and paid over
to Junior Lien Holder in accordance with the Underlying Transaction Documents,
the RCCA Agreement or the Certificate Pledge Agreement.
(f) Each Junior Lien Holder (i) may receive payments from ACC,
AMC and ACFS, respectively in accordance with the provisions of Article II(A)
and/or Section 2.05(e) of the Credit Agreement, and (ii) may enforce its rights
against ACC, AMC, or ACFS respectively in accordance with Section 6.02 of the
Credit Agreement.
1.3 DEFINITION OF PROCEEDING. "Proceeding" as used herein means any
voluntary or involuntary bankruptcy, insolvency, arrangement, reorganization,
receivership, relief or similar proceedings or upon an assignment for the
benefit of creditors or any other marshaling of the assets and liabilities of
any Issuer or Borrower or any other distribution of all or any of the assets of
any Issuer or Borrower to creditors of any Issuer or Borrower upon the
dissolution, winding up, liquidation, arrangement, reorganization, adjustment,
protection, relief or composition of any Issuer or Borrower or its debts. Upon
the occurrence of any Proceeding, any payment or distribution of any kind
(whether in cash, property or securities) which otherwise would be payable or
deliverable upon or with respect to the Borrower Collateral to the Junior Lien
Holders shall be paid or delivered directly to the Senior Lien Holders for
application (in the case of cash) to or as collateral (in the case of noncash
property or securities) for the Senior Secured Obligations until the Senior
Secured Obligations shall have been fully and indefeasibly paid in full in cash.
1.4 NO COMMENCEMENT OF ANY PROCEEDING. Each Junior Lien Holder
agrees that, prior to the date which is one year and one day after the later of:
(a) the date on which all Senior Secured Obligations have been fully and
indefeasibly paid in full in cash and (b) the Final Insurance Termination Date,
such Junior Lien Holder will not commence, or join with any creditor in
commencing or maintaining, any Proceeding by or against Borrower, or any Issuer.
This Section 1.4 shall survive the termination of this Subordination Agreement.
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1.5 NONASSIGNABILITY OF JUNIOR LOAN AND LIENS CONSENTED TO. This
Subordination Agreement shall be binding upon and shall inure to the benefit of
the parties hereto and their respective successors, participants, transferees
and assigns (collectively, "ASSIGNEES") including any Assignee who may be in
interest as a matter of applicable law such as a receiver or trustee or any
Assignee purporting to obtain an interest in violation of the provisions of this
Subordination Agreement. Each Junior Lien Holder hereby covenants and agrees
that none of its legal or beneficial right, title or interest in or to the
Borrower Collateral or under the Transaction Documents may be sold, assigned,
participated, syndicated, pledged, encumbered or transferred, in whole or in
part, absolutely or collaterally, other than in accordance with the provisions
of the Credit Agreement as in effect on the date hereof and with the provisions
of this Subordination Agreement. Any attempt to transfer, directly or
indirectly, all or any portion of the Junior Loan, the Junior Lien or any rights
under any other Transaction Document or to transfer any Junior Lien Holder's
interest in the Borrower Collateral in violation of this Subordination Agreement
shall be null and void, AB INITIO.
1.6 MARSHALING; PAYMENTS SET ASIDE. None of Senior Lien Holders,
FSA, the Noteholders or the Certificateholders shall be under any obligation to
marshal any assets in favor of any Junior Lien Holder, Borrower, any Issuer or
any other Person or against or in payment of any or all of the Senior Secured
Obligations. Each Junior Lien Holder, Borrower and each Issuer hereby waives
any and all rights each shall have at any time under any law pertaining to
marshaling of assets, the sale of property in the inverse order of alienation,
the administration of estates of decedents, appraisement, valuation, stay,
extension or redemption or any other similar laws or equitable principles as now
or hereafter in force to the fullest extent permitted by applicable law.
1.7 NO SET-OFFS BY JUNIOR LIEN HOLDER. Until the Final Insurance
Termination Date, each Junior Lien Holder hereby agrees that it may not exercise
any right of set off, recoupment, banker's lien, statutory lien or any similar
right under any applicable law or in equity against Borrower or any Issuer. If
any action is taken in violation of this provision or if the preceding sentence
should be inapplicable or unenforceable in any respect, each Junior Lien Holder
agrees that the exercise of any such right shall be for the benefit of the
Senior Lien Holders, FSA and the Certificateholders and Noteholders and agrees
to immediately turn over the proceeds of any such set off, recoupment or lien to
the Senior Lien Holders for application to the Senior Secured Obligations.
1.8 NO RIGHTS OF SUBROGATION. Each Junior Lien Holder agrees that no
payment or distribution to the Senior Lien Holders pursuant to the provisions of
this Subordination Agreement shall entitle any Junior Lien Holder to exercise
rights of subrogation, if any, until the Final Insurance Termination Date.
Nothing contained in this Subordination Agreement shall constitute an assignment
by any party to another. Nothing contained in this Subordination Agreement is
intended to or shall excuse or alter, as between Borrower and each Junior Lien
Holder, any of the obligations of Borrower to
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each Junior Lien Holder, or to affect the relative rights against Borrower of
each Junior Lien Holder and creditors of Borrower other than the rights of the
Senior Lien Holders and FSA and the Noteholders and Certificateholders and
each Junior Lien Holder as between them. Each Junior Lien Holder, each Issuer
and Borrower agrees to and hereby does expressly waive to the fullest extent
permitted under applicable law any and all rights, whether at law or in
equity, (a) except as expressly required of FSA pursuant to Section 8.14 of
the RCCA Agreement, to request or compel the Senior Lien Holders, FSA or the
Noteholders or Certificateholders to give notice to any Junior Lien Holder of
any action taken (or not taken) by the Senior Lien Holders, FSA or the
Noteholders or Certificateholders with respect to the Borrower Collateral, the
Senior Secured Obligations or otherwise under the Underlying Transaction
Documents the RCCA Agreement or this Subordination Agreement; (b) to request
or compel marshaling with respect to the Borrower Collateral held for the
Senior Secured Obligations; or (c) to challenge the validity, enforceability
or first priority of the Senior Lien Holders' and FSA's claims and liens or
the exercise of any rights or remedies by the Senior Lien Holders, FSA or the
Noteholders or Certificateholders pursuant to the Underlying Transaction
Documents, the RCCA Agreement or this Subordination Agreement.
1.9 FURTHER ASSURANCES. Each Junior Lien Holder, each Issuer and
Borrower will, at its expense and at any time and from time to time, promptly
execute and deliver all further instruments and documents, and take all further
action (other than any action to commence or maintain a Proceeding), that may be
necessary, or that any of the Senior Lien Holders, FSA or the Certificateholders
or Noteholders may reasonably request, in order to protect any right or interest
granted or purported to be granted hereby or to enable the Senior Lien Holders,
FSA or the Certificateholders or Noteholders to exercise and enforce its rights
and remedies under this Subordination Agreement or the Underlying Transaction
Documents.
Each Junior Lien Holder, each Issuer and Borrower agrees that the
Senior Lien Holders, FSA and the Certificateholders and Noteholders shall have
all of the rights, remedies, immunities, indemnities and discretion provided in
connection with the Underlying Transaction Documents, including, without
limitation, the right to extend, renew, modify, increase, waive or amend any of
the terms thereof, to sell, exchange, release or otherwise deal with any of the
Borrower Collateral, release Borrower, any Issuer or any other person liable in
any manner for any obligations owed to the Senior Lien Holders, FSA or the
Certificateholders or Noteholders, or exercise or refrain from exercising any
rights thereunder or at law as though specifically set forth herein. The
foregoing reservation of rights and remedies under the Underlying Transaction
Documents shall further include, without limitation, the right to charge a
default rate of interest on any amounts owed thereunder, to foreclose upon the
Borrower Collateral as provided therein, and to purchase in lieu of redemption
any Certificates and any Notes (as the terms "Certificates" and "Notes" are
defined in the Underlying Transaction Documents).
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Any and all such rights, remedies, actions or omissions in the Senior
Lien Holders' or FSA's discretion may be taken or not taken without incurring
any responsibility or liability to any Junior Lien Holder, without impairing or
releasing the obligations of Borrower, any Issuer or any Junior Lien Holder
under this Subordination Agreement, without otherwise affecting the rights of
the Senior Lien Holders or FSA under this Subordination Agreement or any
Underlying Transaction Document and without any notice to or consent of any
Junior Lien Holder.
The rights of the Senior Lien Holders, FSA and the Noteholders and
Certificateholders under this Subordination Agreement shall not be prejudiced or
impaired by any action or omission of the Senior Lien Holders, Borrower, any
Issuer, any Underlying Trustee, any Junior Lien Holder or any person in custody
of the Borrower Collateral or the assets, property or operations of Borrower or
any Issuer or by the failure of Borrower, any Issuer, or any Junior Lien Holder
to comply with any of the terms of this Subordination Agreement, the Transaction
Documents or the Underlying Transaction Documents.
Each Junior Lien Holder agrees not to directly or indirectly
challenge, contest, or participate in any effort to challenge, contest, set
aside, alter, amend or modify the rights and priorities set forth in the
Underlying Transaction Documents or this Subordination Agreement.
1.10 AGREEMENT BY BORROWER, JUNIOR LIEN HOLDERS, AND ISSUERS. Each of
Borrower, each Junior Lien Holder, and each Issuer agrees that it will not (a)
take any other action, in contravention of the provisions of this Subordination
Agreement, (b) challenge, directly or indirectly, the enforceability or validity
of this Subordination Agreement, any of the Underlying Transaction Documents or
any of the provisions hereof or thereof, or (c) challenge, directly or
indirectly, the true sale nature and absolute assignment of all or any Issuer's,
any Senior Lien Holder's or FSA's interest in the Trust Estate (as defined in
the Underlying Transaction Documents) or the Spread Account.
1.11 OBLIGATIONS HEREUNDER NOT AFFECTED. All rights and interests of
the Senior Lien Holders, FSA and the Noteholders and Certificateholders under
this Subordination Agreement, and all agreements and obligations of the Junior
Lien Holders, the Borrower and the Issuers under this Subordination Agreement,
shall remain in full force and effect irrespective of:
(a) any lack of validity or enforceability of any Transaction
Document or Underlying Transaction Document or any other agreement or instrument
relating thereto;
(b) any change in any term of any Transaction Document or
Underlying Transaction Document, or any other amendment or waiver of or any
consent to departure from any Transaction Document or Underlying Transaction
Document;
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(c) any exchange, release or non-perfection of the Borrower
Collateral or other collateral, or any release or amendment or waiver of or
consent to departure from any of the terms of the Senior Secured Obligations; or
(d) any other circumstance which might otherwise constitute a
defense available to, or a discharge of, Borrower, any Issuer, or any guarantor
or subordinated creditor.
Notwithstanding anything contained in this Subordination Agreement or any
Transaction Document, this Subordination Agreement shall continue to be
effective or be reinstated, as the case may be, if at any time any payment to
any of the Senior Lien Holders, FSA or any Noteholder or Certificateholder from
Borrower, any Issuer or any other person or by way of enforcement of any
remedies or otherwise from the Borrower Collateral, in each case to the extent
paid, is rescinded, avoided or must otherwise be returned or paid by any Senior
Lien Holder, FSA or any Noteholder or Certificateholder for any reason, whether
following the institution of a Proceeding or otherwise, under any bankruptcy
law, state or federal law, common law or equitable cause, all as though such
payment had not been made and, in that event, the obligations of the parties
hereunder shall be revived with respect to such amounts ("REVIVED CLAIMS"), all
of which shall constitute Senior Secured Obligations.
1.12 PAYMENTS AND DISTRIBUTIONS HELD IN TRUST. All payments,
dividends or other distributions from or by way of the Borrower Collateral,
which are received by a Junior Lien Holder contrary to the provisions of this
Subordination Agreement shall be received in trust for the benefit of the Senior
Lien Holders, FSA and the Noteholders and Certificateholders, shall be held in
the same form received, and shall be segregated from other funds and property
held by any Junior Lien Holder and shall immediately be paid over to the Senior
Lien Holders in the same form as received (with any necessary endorsement) to be
applied (in the case of cash) to or held as collateral (in the case of noncash
property or securities) for the Senior Secured Obligations in accordance with
the terms of the Underlying Transaction Documents until the Senior Secured
Obligations are fully and indefeasibly paid in full in cash.
1.13 FURTHERANCE OF SUBORDINATION.
(a) REMEDIES LIMITED. Notwithstanding anything in this
Subordination Agreement or in any other Transaction Document to the contrary,
all rights and remedies of Lenders, Collateral Agent, Administrative Agent,
Secured Parties, Affected Parties or any of them whether hereunder, under any
Transaction Document or otherwise at law or in equity are subject to the terms
of this Subordination Agreement.
(b) OBLIGATIONS LIMITED. Notwithstanding anything in this
Subordination Agreement or in any other Transaction Document to the contrary,
none of Borrower, any Issuer, or any Underlying Trustee shall have any
obligation or liability to the Administrative Agent, any Secured Party, any
Lender, or any Affected Party or any of
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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 any of Borrower, Issuer or
Underlying Trust to not be Solvent and no such obligation shall be or become
due or payable until such time.
(c) SUBORDINATION AGREEMENT GOVERNS. Notwithstanding any other
provision of this Subordination Agreement or any other Transaction Document, in
the event of any contradiction or ambiguity between this Subordination Agreement
and any other Transaction Document, the terms of this Subordination Agreement
shall govern. All disputes with respect to matters addressed in this
Subordination Agreement shall be determined by reference to this Subordination
Agreement exclusively and no provision of this Subordination Agreement or any
other Transaction Document should be interpreted as altering, amending,
explaining or clarifying any provision of this Subordination Agreement.
(d) NOTE LEGEND. Each Junior Lien Holder hereby covenants and
agrees to legend each Note issued pursuant to the Credit Agreement or other
Transaction Document with the Note Legend attached as Exhibit II hereto.
(e) SURVIVAL. The provisions of this Section 1.13 are for the
benefit of FSA and the Senior Lien Holders and, accordingly, shall survive the
termination of this Subordination Agreement.
1.14 RCCA ACCOUNT COLLATERAL. For the avoidance of any doubt, and
notwithstanding anything contained in this Subordination Agreement or the
Transaction Documents, the Senior Lien Holders are not entitled to any of the
RCCA Account Collateral other than in accordance with the terms and provisions
of the RCCA Agreement.
ARTICLE II.
REPRESENTATIONS AND WARRANTIES
2.1 REPRESENTATIONS AND WARRANTIES OF JUNIOR LIEN HOLDER. (a) Each
Junior Lien Holder, other than the Lender Collateral Agent, represents and
warrants that it is a Lender under the Credit Agreement and that, as a Lender,
it holds the percentage set forth in Appendix B attached hereto of the legal and
beneficial interests, obligations and liens under the Credit Agreement and other
Transaction Documents. Each Junior Lien Holder, other than the Lender
Collateral Agent, covenants that it will not sell, transfer, syndicate,
participate, pledge, encumber or otherwise assign, in whole or in part, all or
any portion of its interests, obligations or liens in or under any of the
Transaction Documents except to a Permitted Transferee in accordance with the
provisions of paragraph 1.5 hereof.
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(b) Each of the Junior Lien Holders represents and warrants that
the execution and delivery of this Subordination Agreement has been duly
authorized by all necessary corporate action.
(c) Each of the Junior Lien Holders represents and warrants that
this Subordination Agreement has been duly executed and delivered by each person
and constitutes the legal, valid and binding obligation of each person,
enforceable against each person in accordance with its terms.
2.2 REPRESENTATIONS AND WARRANTIES OF LENDER COLLATERAL AGENT
(a) Lender Collateral Agent represents and warrants that the
execution and delivery of this Subordination Agreement has been duly authorized
by all necessary corporate action.
(b) Lender Collateral Agent represents and warrants that this
Subordination Agreement has been duly executed and delivered by each person and
constitutes the legal, valid and binding obligation of each person, enforceable
against each person in accordance with its terms.
(c) Lender Collateral Agent is a separate legal entity from
Bankers Trust (Delaware) and has not authority or ability to direct the actions
of Bankers Trust (Delaware) as Owner Trustee.
2.3 REPRESENTATIONS AND WARRANTIES OF OTHER PARTIES
(a) Each of FSA, ACC, ACFS, AMC and AFSFT represents and
warrants that the execution and delivery of this Subordination Agreement has
been duly authorized by all necessary corporate action.
(b) Each of FSA, ACC, ACFS, AMC and AFSFT represents and
warrants that this Subordination Agreement has been duly executed and delivered
by each person and constitutes the legal, valid and binding obligation of each
person, enforceable against each person in accordance with its terms.
ARTICLE III.
MISCELLANEOUS
3.1 AMENDMENTS. (a) No amendment or waiver of any provision of this
Subordination Agreement nor consent to any departure therefrom by any Junior
Lien Holder, Borrower, any Issuer, any Senior Lien Holder or FSA shall in any
event be effective unless the same shall be in writing and signed by the Senior
Lien Holders and FSA, and then such waiver or consent shall be effective only in
the specific instance and for the specific purpose for which given. No failure
on the part of the Senior Lien
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Holders or FSA to exercise, and no delay in exercising, any right hereunder
shall operate as a waiver thereof; nor shall any single or partial exercise
of any right hereunder preclude any other or further exercise thereof or the
exercise of any other right. No notice to or demand on Borrower, any Issuer
or Junior Lien Holder in any case shall entitle Borrower, any Issuer or any
Junior Lien Holder to any other or further notice or demand in similar or
other circumstances. The remedies herein provided are cumulative and not
exclusive of any remedies provided by law.
(b) Each Junior Lien Holder and each of ACC, ACFS, AFSFT, and
AMC hereby acknowledges and agrees that FSA may direct each of the Owner
Trustees or the Underlying Trustees to enter into amendments in accordance
with the terms of the relevant Underlying Transaction Documents, but without
the Junior Lien Holders' consent, to make changes to the Underlying
Transaction Documents that FSA believes in good faith are necessary,
appropriate, or incidental to engaging and retaining a satisfactory successor
servicer in the event of a servicer succession under the terms of the
Underlying Transaction Documents, including, without limitation, any
amendment entered into in accordance with the terms of the relevant
Underlying Transaction Documents that make changes to (a) the duties or
standard of care of the servicer or (b) the compensation paid to the servicer
even if the change in compensation paid to the servicer reduces or eliminates
the amount that would otherwise be released from the Spread Account or the
RCCA to Junior Lien Holders or to any other person.
(c) The parties hereto contemplate that FSA will issue
additional Policies in connection with future Transactions and that such
Transactions will be made subject to the Spread Account Agreement and the
RCCA Agreement by amendments thereto. In connection with each such
Transaction, the parties hereto shall execute an amendment to the
Subordination Agreement substantially in the form of amendment attached as
Exhibit I hereto.
(d) Notwithstanding the provisions of this Section 3.1, (i)
LaSalle's execution of any amendment will not be required only if any such
amendment does not materially adversely affect the interest of LaSalle acting
solely in its capacity as Trust Collateral Agent (as defined in the
Underlying Transaction Documents), Collateral Agent, Trustee or Backup
Servicer (as defined in the Underlying Transaction Documents), (ii) Harris
Trust's execution of any amendment will not be required only if any such
amendment does not materially adversely affect the interest of Harris Trust
acting solely in its capacity as Trust Collateral Agent, Collateral Agent,
Trustee or Backup Servicer, (iii) Bank One's execution of any amendment will
not be required only if any such amendment does not materially adversely
affect the interest of Bank One acting solely in its capacity as Trust
Collateral Agent, Collateral Agent, Trustee or Backup Servicer.
3.2 INDEMNIFICATION OF FSA AND SENIOR LIEN HOLDERS. Each of ACC,
ACFS and ACM hereby acknowledges and agrees that it shall upon demand,
indemnify, protect, save, defend and hold harmless FSA and each Senior Lien
Holder, as the case
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may be, from and against any and all obligations, fees, liabilities, losses,
damages, penalties, claims, demands, actions, suits, judgments, costs and
expenses, including reasonable legal expenses and attorneys fees, of every
kind and nature whatsoever (collectively, "INDEMNIFIABLE EXPENSES"), imposed
on, incurred by, or asserted against FSA or any Senior Lien Holder by any
Person in connection with any (i) Revived Claim and (ii) payments made by FSA
in connection with preference payments made to Noteholders and
Certificateholders, pursuant to any Policy (as defined in the RCCA Agreement).
3.3 ADDITIONAL WAIVERS. (a) Each Junior Lien Holder, each Issuer
and Borrower each hereby waives promptness, diligence, notice of acceptance
and any other notice with respect to any of the Senior Secured Obligations
and this Subordination Agreement and any requirement that the Senior Lien
Holders protect, secure, perfect or insure any security interest or lien or
any property subject thereto or exhaust any right or take any action against
Borrower, any Issuer or any other person or entity or the Borrower Collateral.
(b) Each Junior Lien Holder hereby acknowledges and agrees
that, notwithstanding anything contained in the Credit Agreement or any other
Transaction Document to the contrary, neither the Borrower, nor any Issuer
nor any Underlying Trustee shall have any obligation or liability to such
Junior Lien Holder and no such obligation or liability shall become due or
payable under the Credit Agreement at any time before the Final Insurance
Termination Date if the effect of such obligation or liability would be to
cause the Borrower or any Issuer to not be Solvent. Subject to the terms
hereof, any amount that is prevented by operation of this restriction from
becoming due and payable may, at the option of the Junior Lien Holders,
become an arrearage that becomes due and payable no earlier than the first to
occur of the date upon which Borrower can satisfy such obligation or
liability in full in cash and remain Solvent and the day following the Final
Insurance Termination Date.
3.4 SURVIVAL. All covenants, agreements, representations and
warranties made herein shall survive the execution and delivery of the
Transaction Documents and the making of the Borrowings.
3.5 NO WAIVER BY SENIOR LIEN HOLDERS OR FSA. No failure or delay
on the part of the Senior Lien Holders, FSA or the Underlying Trustees in the
exercise of any power, right or privilege under this Subordination Agreement
or any of the other Underlying Transaction Documents shall impair such power,
right or privilege or be construed to be a waiver of any default or
acquiescence therein, nor shall any single or partial exercise of any such
power, right or privilege preclude other or further exercise thereof or of
any other right, power or privilege.
3.6 SEVERABILITY. Whenever possible, each provision of this
Subordination Agreement, the Transaction Documents and the Underlying
Transaction Documents shall be interpreted in such manner as to be valid,
legal and enforceable under
12
the applicable law of any jurisdiction. Without limiting the generality of
the foregoing sentence, in case any provision of this Subordination
Agreement, the Transaction Documents or the Underlying Transaction Documents
shall be invalid, illegal or unenforceable under the applicable law of any
jurisdiction, the validity, legality and enforceability of the remaining
provisions, or of such provision in any other jurisdiction, shall not in any
way be affected or impaired thereby.
3.7 IN FURTHERANCE OF SUBORDINATION. Notwithstanding the
prohibition against the initiation, commencement or maintenance of any
Proceeding with respect to Borrower or any Issuer, if any such Proceeding
with respect to Borrower or any Issuer is nevertheless pending and not
dismissed,
(a) The Senior Lien Holders and FSA are hereby irrevocably
authorized and empowered (in their own names or in the name of any Junior
Lien Holder or otherwise), but shall have no obligation, to demand, sue for,
collect and receive every payment or distribution referred to in Sections
1.2(a) through 1.2(d), inclusive, and give acquittance therefor and, in the
event any Junior Lien Holder has failed to file a claim or proof of claim
prior to the 30th day preceding any bar date or other date fixed as the last
day for the filing of such claims or proofs of claim, to file claims and
proofs of claim and take such other action. Each Junior Lien Holder hereby
irrevocably appoints the Senior Lien Holders and FSA, as such Junior Lien
Holder's attorney-in-fact, with full power in the place and stead of such
Junior Lien Holder and in the name of such Junior Lien Holder, the Senior
Lien Holders or FSA, or otherwise, from time to time, in the Senior Lien
Holders' or FSA's discretion to take any action, execute any instrument or
other document in connection with any Proceeding or enforce any security
interest or other lien on the Borrower Collateral securing payment to Junior
Lien Holder. Each Senior Lien Holder or FSA shall give the Administrative
Agent prior written notice of its use of such power of attorney in each
action of enforcement of any security interest or other lien on the Borrower
Collateral securing payment to Junior Lien Holder, PROVIDED that the failure
to deliver any such notice shall not affect the validity of such use of such
power of attorney;
(b) Each Junior Lien Holder shall duly and promptly take such
action (other than any action to commence or maintain a Proceeding) as any
Senior Lien Holders or FSA may reasonably request to collect and receive any
and all payments or distributions which may be payable or deliverable in a
proceeding or with respect to the Borrower Collateral; and
(c) Notwithstanding any other provision hereof, each Junior
Lien Holder hereby agrees that any credit extended by the Senior Lien Holders
or FSA to Borrower or any Issuer or any refinancing arrangement of the
Original Underlying Transactions consented to by FSA and the Senior Lien
Holders (whether or not in connection with such Proceeding) shall be entitled
to all the priorities, preferences and benefits of this Subordination
Agreement, provided that Subsequent Reinsurance (as
13
defined in the RCCA Agreement) shall not constitute any such credit or
refinancing agreement.
3.8 ENTIRE AGREEMENT; CONSTRUCTION; AMENDMENTS AND WAIVERS.
(a) This Subordination Agreement, the RCCA Agreement, the
Transaction Documents and the Underlying Transaction Documents constitute and
contain the entire agreement among the parties and supersede any and all
prior agreements, negotiations, correspondence, understandings and
communications between the parties, whether written or oral, respecting the
subject matter hereof.
(b) This Subordination Agreement is the result of
negotiations between and has been reviewed by each of the parties and their
respective counsel; accordingly, this Subordination Agreement shall be deemed
to be the product of the parties hereto, and no ambiguity shall be construed
in favor of or against any party. The parties agree that they intend the
literal words of this Subordination Agreement and that no parol evidence
shall be necessary or appropriate to establish any party's actual intentions.
(c) The right of each Junior Lien Holder to exercise any
remedies under the Credit Agreement or any other Transaction Document is
subject to the terms of this Subordination Agreement. Notwithstanding
anything in the Credit Agreement or in any other Transaction Document, until
the Final Insurance Termination Date, all rights and remedies of each Junior
Lien Holder under the Credit Agreement, any other Transaction Document or
otherwise, whether at law or in equity, is subject to this Subordination
Agreement. In the event of any contradiction or ambiguity between any
Transaction Document and this Subordination Agreement, the terms of this
Subordination Agreement shall govern. All disputes with respect to the
matters addressed in this Subordination Agreement shall be determined by
reference to this Subordination Agreement exclusively and no provision of the
Credit Agreement or any other Transaction Document should be interpreted as
altering, amending, explaining or clarifying any provision of this
Subordination Agreement.
3.9 NOTICES. Any notice or other communication required or
permitted to be given hereunder shall be in writing addressed to the
respective party as set forth below and may be personally served, telecopied
or sent by overnight courier or U.S. Mail and shall be deemed given: (a) if
served in person, when served; (b) if telecopied, on the date of transmission
if before 3:00 p.m. (Eastern time) on a business day; PROVIDED that a hard
copy of such notice is also sent pursuant to (c) or (d) below; (c) if by
overnight courier, on the first business day after delivery to the courier;
or (d) if by U.S. Mail, certified or registered mail, return receipt
requested on the fourth (4th) day after deposit in the mail postage prepaid.
Notices to Junior
Lien Holders: Credit Suisse First Boston, New York
Branch
14
Eleven Madison Avenue
New York, NY 10010
Attn: Asset Finance
Frank Byrne
Telephone: (212) 325-3003
Facsimile: (212) 325-6677
Bankers Trust Company
Four Albany Street
New York, NY 10006
Attn: Corporate Trust and Agency
Services - Structure Finance.
Greenwich Funding Corporation
c/o Credit Suisse First Boston, New York
Branch
Eleven Madison Avenue
New York, NY 10010
Attn: Asset Finance
With copies to: Sullivan & Worcester LLP
One Post Office Square
Boston, MA 02109
Attn: Duncan T. O'Brien
Notice to Owner Trustee
Bankers Trust (Delaware), a Delaware
banking corporation
E. A. Delle Donne Corporate Center
Montgomery Building
1011 Center Road
Wilmington, Delaware 19805-1266
Notices to Issuers: c/o AmeriCredit Corp.
801 Cherry Street, Suite 3900
Fort Worth, Texas 76102
Notices to Borrower: AFS Funding Corp.
639 Isbell Road, Suite 392
Reno, Nevada 89509
Notice to AFSFT AFS Funding Trust
c/o Owner Trustee
Notices to ACC, as agent for
ACFS and ACM: AmeriCredit Corp.
801 Cherry Street, Suite 3900
Fort Worth, Texas 76102
Notices to Senior
Lien Holder: Harris Trust and Savings Bank
311 West Monroe Street, 12th Floor
15
Chicago, Illinois 60606
Attn: Indenture Trust Administration
Telephone No.: (312) 461-6030
Telecopy No.: (312) 461-3525
LaSalle Bank National Association
135 S. LaSalle Street
Suite 1625
Chicago, Illinois 60603
Attn: Asset-Backed
Trust Services Group
Administration
Bank One, N.A.
100 East Broad Street, 8th Floor
Columbus, Ohio 43215
Attn: John Rothrock
Telephone No.: (614) 248-5683
Facsimile No.: (614) 248-5195
Notices to FSA: Financial Security Assurance, Inc.
350 Park Avenue
New York, New York 10022-6022
Attn: Transaction Oversight
Telephone No.: (212) 826-0100
Facsimile No.: (212) 339-3518
With a copy to: Paul, Hastings, Janofsky & Walker LLP
555 South Flower, 23rd Floor
Los Angeles, California 90071
Attn: Hydee R. Feldstein
Telephone No.: (213) 683-6249
Facsimile No.: (213) 627-0705
3.10 CONTINUING AGREEMENT; TRANSFER OF NOTES. This Subordination
Agreement is a continuing agreement and shall (a) remain in full force and
effect until the Senior Secured Obligations shall have fully satisfied or
paid, (b) be binding upon each Junior Lien Holder, each Issuer and Borrower
and each of their respective successors and assigns, and (c) inure to the
benefit of and be enforceable by Senior Lien Holders and FSA and each of
their respective successors, transferees and assigns. Without limiting the
generality of the foregoing clause (c), to the extent Senior Lien Holders or
FSA assigns or otherwise transfers its rights or obligations under any
Underlying Transaction Document to any other person or entity, such other
person or entity shall thereupon become vested with all the rights in respect
thereof granted to Senior Lien Holders or FSA, as applicable, under this
Subordination Agreement, the RCCA Agreement or any Transaction Document.
This Subordination Agreement shall terminate upon the Final Insurance
Termination Date except with respect to Revived Claims and Sections 1.4,
1.12, 3.2 and 3.11.
16
3.11 CONSENT TO JURISDICTION. EACH OF THE PARTIES HERETO HEREBY
CONSENTS AND AGREES THAT THE STATE OR FEDERAL COURTS LOCATED IN THE BOROUGH
OF MANHATTAN, CITY OF NEW YORK SHALL HAVE EXCLUSIVE JURISDICTION TO HEAR AND
DETERMINE ANY CLAIMS OR DISPUTES BETWEEN SUCH PARTIES PERTAINING TO THIS
SUBORDINATION AGREEMENT OR TO ANY DISPUTE BETWEEN FSA, SENIOR LIEN HOLDERS OR
THE NOTEHOLDERS OR CERTIFICATEHOLDERS, ON THE ONE HAND, AND LENDER COLLATERAL
AGENT, JUNIOR LIEN HOLDERS, OR CSFB, ON THE OTHER, UNDER ANY OF THE
TRANSACTION DOCUMENTS OR TO ANY MATTER ARISING OUT OF OR RELATING TO THIS
SUBORDINATION AGREEMENT PROVIDED, THAT SUCH PARTY ACKNOWLEDGES THAT ANY
APPEALS FROM THOSE COURTS MAY HAVE TO BE HEARD BY A COURT LOCATED OUTSIDE OF
THE BOROUGH OF MANHATTAN, CITY OF NEW YORK AND, PROVIDED, FURTHER NOTHING IN
THIS SUBORDINATION AGREEMENT SHALL BE DEEMED OR OPERATE TO PRECLUDE FSA OR
THE SENIOR LIEN HOLDERS FROM BRINGING SUIT OR TAKING OTHER LEGAL ACTION IN
ANY OTHER JURISDICTION TO REALIZE ON ITS COLLATERAL, OR TO ENFORCE A JUDGMENT
OR OTHER COURT ORDER IN FAVOR OF FSA OR THE SENIOR LIEN HOLDERS. EACH OF THE
PARTIES HERETO EXPRESSLY SUBMITS AND CONSENTS IN ADVANCE TO SUCH JURISDICTION
IN ANY ACTION OR SUIT COMMENCED IN ANY SUCH COURT, AND SUCH PARTY HEREBY
WAIVES ANY OBJECTION WHICH IT MAY HAVE BASED UPON LACK OF PERSONAL
JURISDICTION, IMPROPER VENUE OR FORUM NON CONVENIENS AND HEREBY CONSENTS TO
THE GRANTING OF SUCH LEGAL OR EQUITABLE RELIEF AS IS DEEMED APPROPRIATE BY
SUCH COURT. BORROWER, EACH ISSUER AND EACH JUNIOR LIEN HOLDER EACH WAIVES
PERSONAL SERVICE OF ANY AND ALL PROCESS UPON IT, AND CONSENTS THAT ALL
SERVICE OF PROCESS BE MADE IN THE MANNER SET FORTH FOR NOTICE IN SECTION 3.9
OF THIS SUBORDINATION AGREEMENT. EACH OF THE PARTIES HERETO WAIVES ANY RIGHT
TO A TRIAL BY JURY IN ANY ACTION TO ENFORCE OR DEFEND ANY MATTER ARISING FROM
OR RELATED TO THIS SUBORDINATION AGREEMENT.
3.12 GOVERNING LAW. This Subordination Agreement shall be governed
by, and construed in accordance with, the internal laws of the State of New
York applicable to contracts made and performed in that state.
3.13 PAYMENT OF COUNSEL FEES AND EXPENSES. ACFS agrees to pay upon
demand, the reasonable fees and expenses of Paul, Hastings, Janofsky &
Walker, LLP, special counsel to FSA, in connection with the negotiation,
preparation, approval, execution and delivery of this Subordination Agreement
and the other related Transaction
17
Documents. If any party hereto commences any action or proceeding against
another party hereto to interpret or enforce this Subordination Agreement the
prevailing party in such action or proceeding shall be entitled to recover
from the other party the actual attorney's fees, costs and expenses incurred
by such prevailing party in connection therewith and in connection with
enforcing any judgment or order thereby obtained.
3.14 NO DUTIES IMPOSED ON SENIOR LIEN HOLDERS. The rights granted
to the Senior Lien Holders, FSA, the Underlying Trustee, the Noteholders and
the Certificateholders hereunder are solely for their protection and nothing
herein contained shall impose on any of them any duties with respect to the
Borrower Collateral or any property of Borrower, any Issuer or any Junior
Lien Holder. None of the Senior Lien Holders and FSA shall have any duty to
preserve rights against third parties with respect to any instrument or
chattel paper received hereunder.
3.15 SPECIFIC PERFORMANCE. The Senior Lien Holders and FSA are
hereby authorized to demand specific performance of this Subordination
Agreement, whether or not Borrower, any Issuer or any Junior Lien Holder
shall have complied with any of the provisions hereof applicable to it, at
any time when Borrower, any Issuer or any Junior Lien Holder shall have
failed to comply with any of the provisions of this Subordination Agreement
applicable to it. Borrower, each Issuer and each Junior Lien Holder each
hereby irrevocably waives any defense based on the adequacy of a remedy at
law, which might be asserted as a bar to such remedy of specific performance.
3.16 AUTHORITY OF TRUSTEES. AFS Funding and FSA by their execution
of this Subordination Agreement and the Instruction Letters, hereby direct
Bankers Trust (Delaware), not in its individual capacity but solely as Owner
Trustee of the respective owner trusts, and Harris Trust, LaSalle, and the
Collateral Agent, to acknowledge, agree to, execute and deliver this
Subordination Agreement on behalf of each such party.
3.17 LIMITATION OF LIABILITY. It is expressly understood and
agreed by the parties hereto that (a) this Subordination Agreement is
executed and delivered by each of Bankers Trust (Delaware), not individually
or personally, but solely as Owner Trustee of the respective Trusts, in the
exercise of the powers and authority conferred and vested in each under each
respective Trust Agreement, (b) each of the representations, undertakings and
agreements herein made on the part of the Borrower and the Issuers is made
and intended not as personal representations, undertakings and agreements by
Bankers Trust (Delaware) but is made and intended for the purpose of binding
only the Borrower and the Issuers, respectively, (c) nothing herein contained
shall be construed as creating any liability on Bankers Trust (Delaware),
individually or personally, to perform any covenant either expressed or
implied contained herein, all such liability, if any, being expressly waived
by the parties hereto and by any Person claiming by, through or under the
parties hereto, (d) under no circumstances shall Bankers Trust (Delaware) be
personally liable for the payment of any indebtedness or expenses of Borrower
or the Issuers or be liable for the breach or failure of any obligation,
representation, warranty or covenant made or undertaken by the Borrower or
Issuers under this Subordination
18
Agreement or any other related documents, and (e) each of the
representations, undertakings and agreements herein made on the part of the
Borrower or Issuers is made and intended not as representations, undertakings
and agreements by Bankers Trust (Delaware), in their respective capacity as
Owner Trustee or individually, but rather is made and intended for the
purpose for binding only the Borrower or Issuers respectively.
3.18 COUNTERPARTS. This Subordination Agreement may be executed in
any number of counterparts, all of which shall together constitute but one
agreement.
3.19 CONCERNING THE LENDER COLLATERAL AGENT. The Lender Collateral
Agent shall be afforded all of the rights, protections, immunities and
indemnities afforded to it under Section 8.26 of the Credit Agreement and
Section 12 of the Security Agreement as if the same were specifically set
forth herein. Each of the undersigned Junior Lien Holders (other than the
Lender Collateral Agent) hereby authorizes and directs the Lender Collateral
Agent to execute and deliver this Subordination Agreement.
3.20 ADDITIONAL TRANSACTIONS. The parties hereto agree that
additional Underlying Transactions shall become subject to this Subordination
Agreement by the execution of an amendment in accordance with Section 3.1(c)
above and substantially in the form of exhibit I hereto.
3.21 DISCLAIMER OF FIDUCIARY DUTY. Collateral Agent expressly
disclaims any, and each Junior Lien Holder and the Lender Collateral Agent
each expressly agrees and acknowledges that Collateral Agent shall have no
fiduciary duty to any Junior Lien Holder or Lender Collateral Agent with
respect to Collateral Agent's duties as Collateral Agent with respect to the
Borrower Collateral. Each Junior Lien Holder acknowledges and agrees that
(i) Collateral Agent is acting as agent for the Lender Collateral Agent for
the limited purpose of perfection by possession of the Lender Collateral
Agent's security interest in certain of the Borrower Collateral and (ii) the
Collateral Agent's fiduciary duties only run to the Senior Lien Holders and
FSA on behalf of whom Collateral Agent acts. No Junior Lien Holder shall
have any ability or power to direct Collateral Agent in any manner
whatsoever, except as set forth in Section 8.15 of the RCCA Agreement and
Section 8.12 of the Certificate Pledge Agreement, provided that upon the
termination of the liens of the Collateral Agent for the benefit of FSA, the
Collateral Agent shall act upon the written instruction of the Lender
Collateral Agent and shall deliver the Borrower Collateral in accordance with
the written instructions of the Lender Collateral Agent. Each Junior Lien
Holder and Lender Collateral Agent irrevocably instructs Collateral Agent to
follow only the directions of FSA without regard to the interests of any
Junior Lien Holder and upon the instruction of FSA, Collateral Agent may
foreclose on its collateral, including without limitation the Borrower
Collateral. Following the completion of the foreclosure, Collateral Agent
shall be released of all obligations in favor of the Junior Lien Holders,
other than the obligation to turn over possession of the remaining Borrower
Collateral, if any, in accordance with the written instructions of the Lender
Collateral Agent. In the event that Collateral Agent has not foreclosed upon
the Borrower Collateral, then upon the Final Insurance
19
Termination Date, Collateral Agent's sole obligation shall be to turn over
possession of the Borrower Collateral, if any, in accordance with the written
instructions of the Lender Collateral Agent.
3.22 COMMERCIAL REASONABLENESS. Each of the parties hereto (other
than Harris Trust, LaSalle, or, in its capacity as "Collateral Agent" under
the Spread Account Agreement, Bank One, N.A.) expressly agrees that the
rights of the Collateral Agent and FSA as set forth in Article VII of the
RCCA Agreement and in Article 5 of the Certificate Pledge Agreement are
commercially reasonable methods of disposition of the Borrower Collateral
under the UCC, given the nature of the Borrower Collateral and the
circumstances of the transactions contemplated by the Transaction Documents
and the Underlying Transaction Documents.
3.23 EFFECTIVE DATE This Subordination Agreement is effective as
to all parties, other than AFSFT, as of October 14, 1999 and with respect to
AFSFT, this Subordination Agreement is effective as of October 19, 1999.
[SIGNATURES CONTINUE ON THE FOLLOWING PAGE.]
20
IN WITNESS WHEREOF, each Junior Lien Holder, Borrower, ACC, ACFS, ACM,
each Issuer, each Senior Lien Holder and FSA has caused this Subordination
Agreement to be duly executed and delivered by its officer thereunto duly
authorized as of the date first above written.
JUNIOR LIEN HOLDERS
CREDIT SUISSE FIRST BOSTON, NEW YORK BRANCH
By:
-----------------------------------------
Title:
--------------------------------------
By:
-----------------------------------------
Title:
--------------------------------------
BANKERS TRUST COMPANY, not in its individual
capacity, but solely as Lender Collateral
Agent
By:
-----------------------------------------
Title:
--------------------------------------
GREENWICH FUNDING CORPORATION
By Credit Suisse First Boston, New York
Branch,
As Attorney in fact
By:
-----------------------------------------
Title:
--------------------------------------
By:
-----------------------------------------
Title:
--------------------------------------
21
BORROWER
AFS FUNDING CORP.
By:
-----------------------------------------
Title:
--------------------------------------
22
ISSUERS
AmeriCredit 1996-C
By: Bankers Trust (Delaware), solely in its
capacity as Owner Trustee
By:
-----------------------------------------
Title:
--------------------------------------
AmeriCredit 1996-D Trust
By: Bankers Trust (Delaware), solely in its
capacity as Owner Trustee
By:
-----------------------------------------
Title:
--------------------------------------
AmeriCredit 1997-A Trust
By: Bankers Trust (Delaware), solely in its
capacity as Owner Trustee
By:
-----------------------------------------
Title:
--------------------------------------
AmeriCredit 1997-B Trust
By: Bankers Trust (Delaware), solely in its
capacity as Owner Trustee
By:
-----------------------------------------
Title:
--------------------------------------
AmeriCredit 1997-C Trust
By: Bankers Trust (Delaware), solely in its
capacity as Owner Trustee
By:
-----------------------------------------
Title:
--------------------------------------
23
AmeriCredit 1997-D Trust
By: Bankers Trust (Delaware), solely in its
capacity as Owner Trustee
By:
-----------------------------------------
Title:
--------------------------------------
AmeriCredit 1998-A Trust
By: Bankers Trust (Delaware), solely in its
capacity as Owner Trustee
By:
-----------------------------------------
Title:
--------------------------------------
AmeriCredit 1998-B Trust
By: Bankers Trust (Delaware), solely in its
capacity as Owner Trustee
By:
-----------------------------------------
Title:
--------------------------------------
AmeriCredit 1998-C Trust,
By: Bankers Trust (Delaware), solely in its
capacity as Owner Trustee
By:
-----------------------------------------
Title:
--------------------------------------
AmeriCredit 1998-D Trust
By: Bankers Trust (Delaware), solely in its
capacity as Owner Trustee
By:
-----------------------------------------
Title:
--------------------------------------
24
AmeriCredit 1999-A Trust
By: Bankers Trust (Delaware), solely in its
capacity as Owner Trustee
By:
-----------------------------------------
Title:
--------------------------------------
AmeriCredit 1999-B Trust
By: Bankers Trust (Delaware), solely in its
capacity as Owner Trustee
By:
-----------------------------------------
Title:
--------------------------------------
AmeriCredit 1999-C Trust
By: Bankers Trust (Delaware), solely in its
capacity as Owner Trustee
By:
-----------------------------------------
Title:
--------------------------------------
25
ACC
AMERICREDIT CORP.
By:
-----------------------------------------
Title:
--------------------------------------
ACFS
AMERICREDIT FINANCIAL SERVICES, INC.
By:
-----------------------------------------
Title:
--------------------------------------
ACM
AMERICREDIT MANAGEMENT COMPANY
By:
-----------------------------------------
Title:
--------------------------------------
26
SENIOR LIEN HOLDERS
HARRIS TRUST AND SAVINGS BANK,
as Trustee, Trust Collateral Agent and
Collateral Agent for the AmeriCredit 1997-D
Trust, the AmeriCredit 1998-A Trust
By:
-----------------------------------------
Title:
--------------------------------------
LASALLE BANK NATIONAL ASSOCIATION, as
Trustee, Trust Collateral Agent and
Collateral Agent for the AmeriCredit 1996-C
Trust, the AmeriCredit 1996-D Trust, the
AmeriCredit 1997-A Trust, the AmeriCredit
1997-B Trust, the AmeriCredit 1997-C Trust
By:
-----------------------------------------
Title:
--------------------------------------
BANK ONE, N.A., as Trustee,
Trust Collateral Agent and Collateral Agent
for the AmeriCredit 1998-B Trust, the
AmeriCredit 1998-C Trust, the AmeriCredit
1998-D Trust, the AmeriCredit 1999-A Trust,
the AmeriCredit 1999-B Trust, the AmeriCredit
1999-C Trust
By:
-----------------------------------------
Title:
--------------------------------------
27
FSA
FINANCIAL SECURITY ASSURANCE, INC.
By:
-----------------------------------------
Title:
--------------------------------------
28
APPENDIX A
SCHEDULE OF DEFINITIONS
Capitalized terms used in this Subordination Agreement shall have the
following meanings:
"ACC" has the meaning set forth in the Preamble.
"ACFS" has the meaning set forth in the Preamble.
"AFFILIATE" means, with respect to any Person, any Person directly or
indirectly controlling, controlled by or under common control with such former
Person. As used in this definition of "Affiliate," the term "control" means the
possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of a Person, whether through ownership
of voting securities, by contract or otherwise.
"AFSFT" has the meaning set forth in the Preamble.
"AMC" has the meaning set forth in the Preamble.
"ASSIGNEE" has the meaning set forth in Section 1.5 of this Subordination
Agreement.
"BANK ONE" means Bank One, NA, a national banking association and its
successors.
"BORROWER" has the meaning set forth in the Preamble.
"BORROWER COLLATERAL" means all of the property and interests described in
Section 3(a), 3(b), 3(d), 3(e), 3(f), and 3(g) of the Security Agreement.
"BORROWING" A borrowing consisting of simultaneous Advances made by Lenders
pursuant to the same Notice of Borrowing as described in Section 2.02 of the
Credit Agreement, subject to Conversion or Continuation pursuant to Section 2.08
of the Credit Agreement.
"BORROWINGS" Collectively, each Borrowing including each Designated Series
Borrowing.
"CERTIFICATE PLEDGE AGREEMENT" shall mean that certain Certificate Pledge
and Collateral Agency Agreement dated as of October 19, 1999 among Borrower,
AFSFT, FSA, and Bank One.
"CERTIFICATEHOLDERS" has the meaning set forth in the Recitals.
"COLLATERAL AGENT" has the meaning set forth in the Recitals of the RCCA
Agreement; as used herein "Collateral Agent" shall not include any of the Senior
Lien Holders in their capacities as "Collateral Agents" under the Spread Account
Agreement.
1
"CONTROLLING PARTY" has the meaning set forth in the Recitals.
"CREDIT AGREEMENT" has the meaning set forth in the Recitals.
"CSFB" has the meaning set forth in the Preamble.
"FINAL INSURANCE TERMINATION DATE" means the last to occur of the Insurance
Termination Dates.
"FSA" has the meaning set forth in the Preamble.
"INSTRUCTION LETTERS" means the letters of instruction from the Borrower
and AFSFT to the Underlying Trustees directing the Underlying Trustees to pay
monies released from the Spread Accounts to the Lender Collateral Agent.
"INSURANCE TERMINATION DATE" means, in the singular, the termination date
of the 1996-C Insurance and Indemnity Agreement, the 1996-D Insurance and
Indemnity agreement, the 1997-A Insurance and Indemnity Agreement, the 1997-B
Insurance and Indemnity Agreement, the 1997-C Insurance and Indemnity Agreement,
the 1997-D Insurance and Indemnity Agreement, the 1998-A Insurance and Indemnity
Agreement, the 1998-B Insurance and Indemnity Agreement, the 1998-C Insurance
and Indemnity Agreement, 1998-D Insurance and Indemnity Agreement, the 1999-A
Insurance and Indemnity Agreement, the 1999-B Insurance and Indemnity Agreement,
, the 1999-C Insurance and Indemnity Agreement, or any Insurance and Indemnity
Agreement or similar document which may hereafter be executed or in connection
with the issuance of any Policy with respect to a transaction or transactions
made subject to this Subordination Agreement.
"INSURER OBLIGATIONS" has the meaning set forth in the Recitals.
"ISSUERS" has the meaning set forth in the Preamble.
"JUNIOR LIEN" has the meaning set forth in the Recitals.
"JUNIOR LIEN HOLDERS" has the meaning set forth in the Preamble.
"JUNIOR LOAN" has the meaning set forth in the Recitals.
"NOTEHOLDERS" has the meaning set forth in the Recitals.
"ORIGINAL UNDERLYING TRANSACTIONS" means when used in the singular, any of,
and when used in the plural, all of, the transactions contemplated by the
AmeriCredit 1996-C Trust, the AmeriCredit 1996-D Trust, the AmeriCredit 1997-A
Trust, the AmeriCredit 1997-B Trust, the AmeriCredit 1997-C Trust, the
AmeriCredit 1997-D Trust, the AmeriCredit 1998-A Trust, the AmeriCredit 1998-B
Trust, the AmeriCredit 1998-C Trust, the AmeriCredit 1998-D Trust, the
AmeriCredit 1999-A Trust, the AmeriCredit 1999-B Trust, the AmeriCredit 1999-C
Trust and any other Series that may from time to time become either part of or
subject to this Subordination Agreement by executing an amendment in accordance
with Section 3.1 above and substantially in the form of exhibit I hereto.
2
"OWNER TRUSTEE" means Bankers Trust Company, a Delaware banking
Corporation acting not in its individual capacity, but solely in its
fiduciary capacity as trustee under that certain Trust Agreement, dated as of
October 19, 1999, by and among Borrower, AFSFT, and Bankers Trust (Delaware)
(the "Trust Agreement"), and any banking corporation that shall have become
its successor under Section 7.04 of the Trust Agreement.
"PERMITTED TRANSFEREE" At any time, a bank, insurance company,
reinsurance company or commercial paper conduit having, in the case of an
entity that is subject to risk-based capital adequacy requirements, risk
based capital of at least $100,000,000 or, in the case of an entity that is
not subject to risk-based capital adequacy requirements, combined capital and
surplus of at least $100,000,000.
"PERSON" means any individual, corporation, partnership, joint venture,
association, limited liability company, joint stock company, trust (including
any beneficiary thereof) or any other entity, unincorporated organization or
government or any agency or political subdivision thereof.
"POLICY" means any Financial Guaranty Insurance Policy issued by FSA
with respect to a Series of Notes for which the Seller has established an
RCCA under the RCCA Agreement.
"PROCEEDING" has the meaning set forth in Section 1.3 of this
Subordination Agreement.
"RCCA" has the meaning set forth in the Recitals of the RCCA Agreement.
"RCCA ACCOUNT COLLATERAL" has the meaning set forth in Section 1 of the
Security Agreement.
"RCCA AGREEMENT" means the Replacement Cash Collateral Account
Agreement, dated as of the date hereof, among the Borrower, FSA, the
Administrative Agent and the Collateral Agent, as the same may be amended,
supplemented or otherwise modified from time to time.
"REVIVED CLAIMS" has the meaning set forth in Section 1.11 of this
Subordination Agreement.
"SECURITY AGREEMENT" has the meaning set forth in the Recitals.
"SENIOR SECURED OBLIGATIONS" has the meaning set forth in Section 1.2 of
this Subordination Agreement.
"SOLVENT" means, as to any Person at any time, that (a) the fair value
of the Property of such Person is greater than the amount of such Person's
liabilities (including disputed, contingent and unliquidated liabilities) as
such value is established and liabilities evaluated for purposes of Section
101(3) of the Bankruptcy Code; (b) the present fair saleable value of the
Property of such Person in an orderly liquidation of such Person is not less
than the amount that will be required to pay the probable liability of such
Person on its debts as they become absolute and matured; (c) such Person is
able to
3
realize upon its Property and pay its debts and other liabilities (including
disputed, contingent and unliquidated liabilities) as they mature in the
normal course of business; (d) such Person does not intend to, and does not
believe that it will, incur debts or liabilities beyond such Person's ability
to pay as such debts and liabilities mature; and (e) such Person is not
engaged in business or a transaction, and is not about to engage in business
or a transaction, for which such Person's Property would constitute
unreasonably small capital.
"SPREAD ACCOUNT AGREEMENT" means that certain Spread Account Agreement,
dated as of December 1, 1994, as amended and restated as of May 11, 1998,
among the Borrower, FSA, LaSalle, Harris Trust and Collateral Agent, as
amended, restated, modified or supplemented from time to time.
"TRANSACTION DOCUMENTS" means the Credit Agreement, the Lender Notes (as
defined in the Credit Agreement), the Letters of Instruction, the Security
Agreement, this Subordination Agreement and all other notes, security
agreements, instruments, documents and other agreements (including UCC
financing statements) heretofore, now or hereafter executed and/or delivered
by or on behalf of the Borrower, any Issuer, guarantor or Co-obligor in
connection with any of the foregoing, in each case, as the same may be
amended, supplemented or otherwise modified.
"UCC" means the Uniform Commercial Code as in effect in each relevant
jurisdiction.
"UNDERLYING TRANSACTIONS" when used in the singular, any of, and when
used in the plural, all of, the transactions contemplated by the Original
Underlying Transactions and each of the 1996-C Insurance and Indemnity
Agreement, the 1996-D Insurance and Indemnity agreement, the 1997-A Insurance
and Indemnity Agreement, the 1997-B Insurance and Indemnity Agreement, the
1997-C Insurance and Indemnity Agreement, the 1997-D Insurance and Indemnity
Agreement, the 1998-A Insurance and Indemnity Agreement, the 1998-B Insurance
and Indemnity Agreement, the 1998-C Insurance and Indemnity Agreement, 1998-D
Insurance and Indemnity Agreement, the 1999-A Insurance and Indemnity
Agreement, the 1999-B Insurance and Indemnity Agreement, , the 1999-C
Insurance and Indemnity Agreement, the 1996-C Sale and Servicing Agreement,
the 1996-D Sale and Servicing Agreement, the 1997-A Sale and Servicing
Agreement, the 1997-B Sale and Servicing Agreement, the 1997-C Sale and
Servicing Agreement, the 1997-D Sale and Servicing Agreement, the 1998-A Sale
and Servicing Agreement, the 1998-B Sale and Servicing Agreement, the 1998-C
Sale and Servicing Agreement, the 1998-D Sale and Servicing Agreement, the
1999-A Sale and Servicing Agreement, the 1999-B Sale and Servicing Agreement,
the 1999-C Sale and Servicing Agreement, and each other insurance and
indemnity agreement and each other sale and servicing agreement entered into
in connection with a spread account which is or becomes subject to the Spread
Account Agreement and all other transactions that may from time to time
become subject to this Subordination Agreement by an amendment executed in
accordance with Section 3.1 above and substantially in the form of Exhibit I
hereto.
"UNDERLYING TRANSACTION DOCUMENTS" mean the agreements, contracts,
documents, amendments, consents, instruments, certificates and other papers
executed in connection with each Underlying Transaction.
4
"UNDERLYING TRUST" means, in the singular any of, and in the plural, all
of, the Original Underlying Transactions, and any other trust that may from
time to time become party to this Subordination Agreement by executing an
amendment in accordance with Section 3.1 above and substantially in the form
of Exhibit I hereto.
"UNDERLYING TRUSTEES" means, in the singular, either of Harris Trust,
LaSalle or Collateral Agent, and in the plural, all of them, and their
respective successors and assigns, if any, in their capacities as trustees,
trust collateral agents or collateral agents, in the Underlying Transactions
and any other trustee designated with respect to any of the Underlying
Transactions.
5
APPENDIX B
SCHEDULE OF LENDER'S INTERESTS
1
EXHIBIT I
FORM OF AMENDMENT TO
SUBORDINATION AND INTERCREDITOR AGREEMENT
This FIRST AMENDMENT TO SUBORDINATION AND INTERCREDITOR
AGREEMENT, dated as of October __, 1999 (" First Amendment"), is hereby
entered into by and among [(a) AFS Funding Corp., a Nevada Corporation
("BORROWER"); (b) AFS Funding Trust, a Delaware Business Trust ("AFSFT"); (c)
the AmeriCredit 1996-C Trust, the AmeriCredit 1996-D Trust, the AmeriCredit
1997-A Trust, the AmeriCredit 1997-B Trust, the AmeriCredit 1997-C Trust, the
AmeriCredit 1997-D Trust, the AmeriCredit 1998-A Trust, the AmeriCredit
1998-B Trust, the AmeriCredit 1998-C Trust, the AmeriCredit 1998-D Trust, the
AmeriCredit 1999-A Trust, the AmeriCredit 1999-B Trust, the AmeriCredit
1999-C Trust (collectively, the "ISSUERS"); (d) AmeriCredit Financial
Services, Inc., a Delaware corporation ("ACFS"), (e) AmeriCredit Management
Company, a Delaware corporation ("AMC"), (f) AmeriCredit Corp., a Texas
corporation ("ACC"); (g) Bankers Trust Company, a New York banking
Corporation, not in its individual capacity, but solely in its capacity as
Lender Collateral Agent under the Security Agreement (as defined below) (the
"LENDER COLLATERAL AGENT"), (h) Bankers Trust (Delaware), a Delaware banking
corporation ("BANKERS TRUST (DELAWARE)"), not in its individual capacity, but
solely in its capacity as Owner Trustee; (i) Credit Suisse First Boston, a
Swiss banking corporation acting through its New York branch ("CSFB"), in its
capacity as Administrative Agent under the Credit Agreement (defined below),
(j) those Lenders from time to time party to the Credit Agreement (defined
below)(the "Lenders" and collectively with the Lender Collateral Agent and
CSFB, the "JUNIOR LIEN HOLDERS"); (k) Financial Security Assurance Inc., a
New York stock insurance company ("FSA"), (l) Harris Trust and Savings Bank,
an Illinois banking corporation ("Harris Trust"), LaSalle Bank National
Association formerly known as LaSalle National Bank ("LaSalle"), and Bank One
N.A., (each in its capacity as "Collateral Agent" under that certain Spread
Account Agreement dated as of December 1, 1994, (as amended and restated May
11, 1998, and as amended and or restated from time to time thereafter) and
such other entities as may be designated as "Collateral Agent" under the
Underlying Transaction Documents or the Spread Account Agreement, together
with their respective successors or assigns, if any (collectively the "SENIOR
LIEN HOLDERS"). All capitalized terms used but not otherwise defined herein
shall have the respective meanings set forth in Appendix A attached hereto.]
WHEREAS, FSA issued and will issue insurance policies to the Senior
Lien Holders in such Senior Lien Holders' capacity as the trustee or indenture
trustee, as applicable (in such capacity, the "Trustee") of the Underlying
Trusts, to guarantee certain scheduled payments to holders of notes or
certificates, as applicable (the "Noteholders" or "Certificateholders") issued
by the Issuers (the "Insurer Obligations");
1
WHEREAS, Pursuant to that certain Credit Agreement ("Credit
Agreement") dated as of October 14, 1999 among Borrower, ACC, ACFS, AMC, the
Lenders, the Lender Collateral Agent, and CSFB (in its capacity as
Administrative Agent), the Lenders extended certain financial accommodations
to the Borrower of up to $225,000,000;
WHEREAS, as a condition precedent to the Credit Agreement, FSA
consented to the Junior Lien on the Borrower Collateral solely upon and in
accordance with the terms and conditions set forth in the Subordination and
Intercreditor Agreement, dated as of October 19, 1999 (the "Subordination
Agreement") by and among Borrower, AFSFT, Issuers, ACFS, AMC, ACC, the Lender
Collateral Agent, Bankers Trust (Delaware), CSFB, Junior Lien Holders, FSA,
Senior Lien Holders.
WHEREAS, the [Borrower] has requested that the Subordination
Agreement be amended as set forth herein;
NOW, THEREFORE, in consideration of the promises and mutual
covenants herein contained, the parties agree as follows:
SECTION 1. RELATION TO SUBORDINATION AGREEMENT.
Section 1.1 RELATION TO SUBORDINATION AGREEMENT. This First
Amendment is an amendment to and is an integral part of the Subordination
Agreement.
Section 1.2 DEFINED TERMS. Unless otherwise amended by the terms of
this First Amendment, terms used in this First Amendment shall the meaning
assigned to them in the Credit Agreement.
SECTION 2. AMENDMENT TO SUBORDINATION AGREEMENT.
Section 2.1 AMENDMENT TO SUBORDINATION AGREEMENT. Effective upon the
execution and delivery of this First Amendment, the Subordination Agreement
shall read as follows:
(a) The definition of "Issuers" set forth in Preamble to the
Subordination Agreement shall be and is hereby amended to include
[insert other transaction series].
(b) Article II shall be amended as follows:
"2.1 REPRESENTATIONS AND WARRANTIES OF JUNIOR LIEN HOLDER.
2
(a) Each Junior Lien Holder, other than the Lender Collateral
Agent, represents and warrants that it is a Lender under the Credit
Agreement and that, as a Lender, it holds the percentage set forth in
Appendix B attached hereto of the legal and beneficial interests,
obligations and liens under the Credit Agreement and other Transaction
Documents. Each Junior Lien Holder, other than the Lender Collateral
Agent, covenants that it will not sell, transfer, syndicate,
participate, pledge, encumber or otherwise assign, in whole or in
part, all or any portion of its interests, obligations or liens in or
under any of the Transaction Documents in accordance with the
provisions of paragraph 1.5 of the Subordination Agreement.
(b) Each of the Junior Lien Holders represents and warrants that
the execution and delivery of this First Amendment has been duly
authorized by all necessary corporate action.
(c) Each of the Junior Lien Holders represents and warrants that
this First Amendment has been duly executed and delivered by each
person and constitutes the legal, valid and binding obligation of each
person, enforceable against each person in accordance with its terms.
2.2 REPRESENTATIONS AND WARRANTIES OF LENDER COLLATERAL AGENT
(a) Lender Collateral Agent represents and warrants that the
execution and delivery of this First Amendment has been duly
authorized by all necessary corporate action.
(b) Lender Collateral Agent represents and warrants that this
First Amendment has been duly executed and delivered by each person
and constitutes the legal, valid and binding obligation of each
person, enforceable against each person in accordance with its terms.
(c) Lender Collateral Agent is a separate legal entity from
Bankers Trust (Delaware) and has not authority or ability to direct
the actions of Bankers Trust (Delaware) as Owner Trustee.
2.3 REPRESENTATIONS AND WARRANTIES OF OTHER PARTIES
(a) Each of FSA, ACC, ACFS, AMC, [insert new Trust] and AFSFT
represents and warrants that the execution and delivery of this First
Amendment has been duly authorized by all necessary corporate action.
(b) Each of FSA, ACC, ACFS, AMC, [insert new Trust] and AFSFT
represents and warrants that this First Amendment has been duly
3
executed and delivered by each person and constitutes the legal, valid
and binding obligation of each person, enforceable against each person
in accordance with its terms."
Section 2.2 AMENDMENT TO SCHEDULE OF DEFINITIONS. Capitalized terms
used in this First Amendment shall have the following meanings:
(a) The definition of "Insurance Termination Date" set forth in the
Schedule of Definitions to the Subordination Agreement shall be and is
hereby amended to [insert termination date of Insurance and Indemnity
Agreement].
(b) The definition of "Original Underlying Transactions" set forth in
Schedule of Definitions to the Subordination Agreement shall be and is
hereby amended to include [insert other transaction series].
(c) The definition of "Underlying Transactions" set forth in Schedule
of Definitions to the Subordination Agreement shall be and is hereby
amended to include [insert other transaction series].
(d) The definition of "Underlying Trust" set forth in Schedule of
Definitions to the Subordination Agreement shall be and is hereby
amended to include [insert other transaction series].
(e) The definition of "Underlying Trustee" set forth in Schedule of
Definitions to the Subordination Agreement shall be and is hereby
amended to include [insert other transaction series].
(f) "Subordination Agreement" means that certain Subordination and
Intercreditor Agreement, dated as of October 19, 1999, by and among
Borrower, AFSFT, Issuers, ACFS, AMC, ACC, Bankers Trust, Bankers Trust
(Delaware), CSFB, Junior Lien Holders, FSA, Senior Lien Holders.
Section 2.3 AMENDMENT TO SCHEDULE OF LENDERS INTERESTS. Effective
upon the execution and delivery of this First Amendment, the Subordination
Agreement shall include:
SECTION 3. CONDITIONS TO EFFECTIVENESS.
Section 3.1 EFFECTIVENESS. This First Amendment shall take effect
immediately upon its execution by each party hereto.
4
SECTION 4. MISCELLANEOUS.
Section 4.1 This First Amendment shall be binding upon and shall
inure to the benefit of the parties hereto and their respective successors
and assigns.
Section 4.2 This First Amendment may be executed in any number of
several counterparts, each of which shall be deemed an original but all of
which together shall constitute one and the same instrument.
Section 4.3 This First Amendment shall be construed in connection
with and as part of the Subordination Agreement, and except as modified and
expressly amended by this First Amendment, all terms, conditions and
covenants contained in the Subordination Agreement are hereby ratified and
shall remain in full force and effect.
Section 4.4 THIS SUBORDINATION AGREEMENT SHALL BE GOVERNED BY THE
LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO ITS CONFLICTS OF LAW
RULES.
[signature pages follow]
5
IN WITNESS WHEREOF, each Junior Lien Holder, Borrower, ACC, ACFS,
ACM, each Issuer, each Senior Lien Holder and FSA has caused this
Subordination Agreement to be duly executed and delivered by its officer
thereunto duly authorized as of the date first above written.
JUNIOR LIEN HOLDERS
CREDIT SUISSE FIRST BOSTON, NEW YORK BRANCH
By:
-----------------------------------------
Title:
--------------------------------------
By:
-----------------------------------------
Title:
--------------------------------------
BANKERS TRUST COMPANY, not in its individual
capacity, but solely as Lender Collateral
Agent
By:
-----------------------------------------
Title:
--------------------------------------
GREENWICH FUNDING CORPORATION
By Credit Suisse First Boston, New York
Branch,
As Attorney in fact
By:
-----------------------------------------
Title:
--------------------------------------
By:
-----------------------------------------
Title:
--------------------------------------
6
BORROWER
AFS FUNDING CORP.
By:
-----------------------------------------
Title:
--------------------------------------
7
ISSUERS
AmeriCredit 1996-C
By: Bankers Trust (Delaware), solely in its
capacity as Owner Trustee
By:
-----------------------------------------
Title:
--------------------------------------
AmeriCredit 1996-D Trust
By: Bankers Trust (Delaware), solely in its
capacity as Owner Trustee
By:
-----------------------------------------
Title:
--------------------------------------
AmeriCredit 1997-A Trust
By: Bankers Trust (Delaware), solely in its
capacity as Owner Trustee
By:
-----------------------------------------
Title:
--------------------------------------
AmeriCredit 1997-B Trust
By: Bankers Trust (Delaware), solely in its
capacity as Owner Trustee
By:
-----------------------------------------
Title:
--------------------------------------
AmeriCredit 1997-C Trust
By: Bankers Trust (Delaware), solely in its
capacity as Owner Trustee
By:
-----------------------------------------
Title:
--------------------------------------
8
AmeriCredit 1997-D Trust
By: Bankers Trust (Delaware), solely in its
capacity as Owner Trustee
By:
-----------------------------------------
Title:
--------------------------------------
AmeriCredit 1998-A Trust
AmeriCredit 1998-A Trust
By: Bankers Trust (Delaware), solely in its
capacity as Owner Trustee
By:
-----------------------------------------
Title:
--------------------------------------
AmeriCredit 1998-B Trust
By: Bankers Trust (Delaware), solely in its
capacity as Owner Trustee
By:
-----------------------------------------
Title:
--------------------------------------
AmeriCredit 1998-C Trust,
By: Bankers Trust (Delaware), solely in its
capacity as Owner Trustee
By:
-----------------------------------------
Title:
--------------------------------------
AmeriCredit 1998-D Trust
By: Bankers Trust (Delaware), solely in its
capacity as Owner Trustee
By:
-----------------------------------------
Title:
--------------------------------------
9
AmeriCredit 1999-A Trust
By: Bankers Trust (Delaware), solely in its
capacity as Owner Trustee
By:
-----------------------------------------
Title:
--------------------------------------
AmeriCredit 1999-B Trust
By: Bankers Trust (Delaware), solely in its
capacity as Owner Trustee
By:
-----------------------------------------
Title:
--------------------------------------
AmeriCredit 1999-C Trust
By: Bankers Trust (Delaware), solely in its
capacity as Owner Trustee
By:
-----------------------------------------
Title:
--------------------------------------
[insert new Trust]
By: [insert Owner Trustee]
By:
-----------------------------------------
Title:
--------------------------------------
10
ACC
AMERICREDIT CORP.
By:
-----------------------------------------
Title:
--------------------------------------
ACFS
AMERICREDIT FINANCIAL SERVICES, INC.
By:
-----------------------------------------
Title:
--------------------------------------
ACM
AMERICREDIT MANAGEMENT COMPANY
By:
-----------------------------------------
Title:
--------------------------------------
11
SENIOR LIEN HOLDERS
HARRIS TRUST AND SAVINGS BANK,
as Trustee, Trust Collateral Agent and
Collateral Agent for the AmeriCredit 1997-D
Trust, the AmeriCredit 1998-A Trust
By:
-----------------------------------------
Title:
--------------------------------------
LASALLE BANK N.A., as Trustee
Trust Collateral Agent and Collateral Agent
for the AmeriCredit 1996-C Trust, the
AmeriCredit 1996-D Trust, the AmeriCredit
1997-A Trust, the AmeriCredit 1997-B Trust,
the AmeriCredit 1997-C Trust
By:
-----------------------------------------
Title:
--------------------------------------
BANK ONE, N.A. as Trustee,
Trust Collateral Agent and Collateral Agent
for the AmeriCredit 1998-B Trust, the
AmeriCredit 1998-C Trust, the AmeriCredit
1998-D Trust, the AmeriCredit 1999-A Trust,
the AmeriCredit 1999-B Trust, the AmeriCredit
1999-C Trust
By:
-----------------------------------------
Title:
--------------------------------------
12
FSA
FINANCIAL SECURITY ASSURANCE, INC.
By:
-----------------------------------------
Title:
--------------------------------------
13
EXHIBIT II
NOTE LEGEND
No Note or Other Instrument shall be sold, assigned or otherwise transferred by
any Noteholder or Certificateholder, respectively, unless there is conspicuously
endorsed on the first page of such Note or Other Instrument a legend reading as
follows:
THIS NOTE AND THE RIGHTS AND OBLIGATIONS EVIDENCED HEREBY ARE SUBORDINATE IN THE
MANNER AND TO THE EXTENT SET FORTH IN THAT CERTAIN SUBORDINATION AND
INTERCREDITOR AGREEMENT, DATED AS OF OCTOBER 19, 1999 (AS IT MAY BE AMENDED FROM
TIME TO TIME, THE "SUBORDINATION AGREEMENT), AMONG THE BORROWER, AMERICREDIT
FINANCIAL SERVICES, INC., AMERICREDIT MANAGEMENT COMPANY, INC., AMERICREDIT
CORP., THE LENDERS, THE ADMINISTRATIVE AGENT, HARRIS TRUST AND SAVINGS, BANK,
LASALLE NATIONAL BANK, BANK ONE N.A., FINANCIAL SECURITY ASSURANCE INC. AND THE
LENDER COLLATERAL AGENT. EACH HOLDER OF THIS NOTE, BY ITS ACCEPTANCE HEREOF,
SHALL BE BOUND BY THE PROVISIONS OF THE SUBORDINATION AGREEMENT.
1