Exhibit 10.66
EXECUTION COPY
AMERICREDIT FINANCIAL SERVICES OF CANADA LTD.,
as Seller and Servicer
and
AMERICREDIT CANADA FUNDING TRUST I,
as Borrower
by its trustee
CIBC MELLON TRUST COMPANY
and
CONGRESS FINANCIAL CORPORATION (CANADA),
as Lender and Collateral Agent
SECURITY AGREEMENT
Osler, Hoskin & Harcourt LLP
Barristers & Solicitors
Toronto, Ontario
TABLE OF CONTENTS
Page
ARTICLE 1
DEFINITIONS 1
1.1 Defined Terms .................................................... 1
1.2 Definitions ...................................................... 1
ARTICLE 2
SECURITY INTERESTS ........................................................ 2
2.1 Security Interest ................................................ 2
2.2 Fixed Nature of Security Interests ............................... 2
2.3 Attachment ....................................................... 2
2.4 Obligations Secured .............................................. 2
2.5 Borrower's Rights before Default ................................. 3
2.6 Default .......................................................... 3
2.7 Rights and Remedies .............................................. 3
2.8 Power of Attorney ................................................ 4
2.9 Payment of Deficiency ............................................ 5
2.10 Assemble the Collateral .......................................... 5
2.11 Allocation of proceeds ........................................... 5
2.12 Waivers and Extensions ........................................... 5
ARTICLE 3
REPRESENTATIONS AND WARRANTIES ............................................ 6
3.1 Representations and Warranties of the Borrower and AmeriCredit
Canada ........................................................... 6
3.2 Representations and Warranties of the Servicer ................... 9
3.3 Survival ......................................................... 9
3.4 Deemed Warranties ................................................ 9
ARTICLE 4
COVENANTS ................................................................. 9
4.1 Affirmative Covenants of AmeriCredit Canada ...................... 9
4.2 Negative Covenants of AmeriCredit Canada ......................... 12
4.3 Hedging Arrangements ............................................. 13
ARTICLE 5
ACCOUNTS .................................................................. 14
5.1 Accounts ......................................................... 14
5.2 General Provisions Regarding Trust Accounts ...................... 15
ARTICLE 6
COLLECTIONS; DISTRIBUTIONS AND PAYMENTS ................................... 16
6.1 Collections ...................................................... 16
6.2 Application of Collections ....................................... 17
6.3 Additional Deposits .............................................. 17
-i-
TABLE OF CONTENTS
(continued)
Page
6.4 Distributions ................................................... 17
6.5 Cash Reserve Account ............................................ 20
6.6 Proceeds of Realization. ........................................ 21
6.7 Release ......................................................... 21
6.8 Assignment by Seller ............................................ 22
6.9 Borrowing Base Adjustment Loans ................................. 22
ARTICLE 7
THE COLLATERAL AGENT ..................................................... 22
7.1 Duties of the Collateral Agent .................................. 22
7.2 Indemnification of Collateral Agent ............................. 23
7.3 Liability of the Collateral Agent ............................... 23
ARTICLE 8
MISCELLANEOUS ............................................................ 25
8.1 Waivers; Amendments ............................................. 25
8.2 Notices ......................................................... 25
8.3 Governing Law; Submission to Jurisdiction ....................... 27
8.4 Counterparts .................................................... 28
8.5 Successors and Assigns .......................................... 28
8.6 Confidentiality Agreement ....................................... 28
8.7 Further Assurances .............................................. 29
8.8 Headings ........................................................ 29
8.9 Limitation of Liability ......................................... 29
-ii-
Security AGREEMENT
THIS SECURITY AGREEMENT dated as of April 30, 2002, among CONGRESS FINANCIAL
CORPORATION (CANADA), as lender and collateral agent (together with its
permitted successors and assigns, the "Lender" or "Collateral Agent", as
applicable), AMERICREDIT CANADA FUNDING TRUST I, a trust established under the
laws of the Province of Ontario (the "Trust" and, together with its successor
and permitted assigns, the "Borrower") by its trustee CIBC MELLON TRUST COMPANY
and AMERICREDIT FINANCIAL SERVICES OF CANADA LTD., as Servicer and Seller
("AmeriCredit Canada").
PRELIMINARY STATEMENTS. Subject to the terms and conditions of this Agreement,
the Borrower desires to grant a security interest in and to the Collateral,
including the Borrower's interest in the Receivables and related property, that
includes the Borrower's interest in certain retail automotive installment sales
contracts secured by automobiles.
Pursuant to the Loan Agreement, the Lender has provided certain loans to the
Borrower and the Borrower will be obligated to pay the principal of and interest
on the loans in accordance with the terms of the Loan Agreement.
The Borrower is granting a security interest in the Collateral to the Collateral
Agent, for the benefit of the Lender, to secure the payment and performance of
the Borrower of its obligations under this Agreement, the Loan Note and the Loan
Agreement.
In consideration of the mutual agreements, provisions and covenants contained
herein, the parties hereto agree as follows:
ARTICLE 1
DEFINITIONS
1.1 Defined Terms
Unless the context otherwise requires or unless otherwise specified, all the
terms used in this Agreement without initial capitals which are defined in the
PPSA (Ontario) have the same meanings in this Agreement as in the PPSA
(Ontario).
1.2 Definitions
In this Agreement, the following terms shall have the meanings set out below:
"Agreement" means this agreement entitled "Security Agreement" including any
recitals and schedules to this Agreement, as may be modified, amended, restated,
replaced or supplemented from time to time;
"Obligations" has the meaning specified therefor in Section 2.4;
"Loan Agreement" means the Loan Agreement, dated as of the date hereof, among
the Borrower, AmeriCredit Canada, as Seller, Servicer and individually, the
Lender and the Collateral Agent, as amended, supplemented or otherwise modified
from time to time.
-2-
"Master Receivables Purchase Agreement" means the master receivables purchase
agreement, dated as of the date hereof, among the Seller, the Purchaser and the
Collateral Agent, as such agreement may be amended, supplemented or otherwise
modified from time to time.
"Security Interest" means the Lien granted under Section 2.1.
All other capitalized terms not otherwise defined shall have the respective
meanings set out in the Master Receivables Purchase Agreement and the Loan
Agreement, as the case may be.
ARTICLE 2
SECURITY INTERESTS
2.1 Security Interest
As general and continuing security for the payment, repayment and the
performance of each of the Obligations of the Borrower to the Lender, the
Borrower hereby grants to the Collateral Agent on behalf of the Lender and the
Collateral Agent a continuing, specific and fixed security interest in all of
the Collateral provided that once the Collateral Agent has released its interest
in a Receivable and the Related Security pursuant to and in accordance with this
Agreement, such Receivable and Related Security shall no longer be part of the
Collateral.
2.2 Fixed Nature of Security Interests
The Security Interest is intended to operate as a fixed and specific charge of
all of the Collateral presently existing, and with respect to all future
Collateral, to operate as a fixed and specific charge of such future Collateral.
2.3 Attachment
The Borrower acknowledges that value has been given. The Security Interest is
intended to attach, as to all of the Collateral, upon the execution by the
Borrower of this Agreement.
2.4 Obligations Secured
The Collateral constitutes and will constitute continuing security for the
following obligations (the "Obligations") of the Borrower to the Lender:
(a) Indebtedness - The prompt payment, as and when due and payable, of
all amounts now or hereafter owing by the Borrower to the Lender and
the Collateral Agent under the Loan Agreement, the Loan Note, this
Agreement and the other Transaction Documents whether now existing or
hereafter incurred, matured or unmatured, direct, indirect or
contingent, including any amendments, restatements, supplements,
extensions, renewals and replacements thereof; and
(b) Performance of Agreements - The strict performance and observance by
the Borrower of all agreements, warranties, representations,
covenants and conditions of the Borrower in favour of the Lender and
the Collateral Agent made pursuant to the Loan Agreement, the Loan
Note, this Agreement and the other Transaction Documents, in each
case, as now in effect or as hereafter entered into, amended,
restated, supplemented, renewed, extended or replaced from time to
time.
-3-
2.5 Borrower's Rights before Default
Until the occurrence of a Termination Event and subject to the terms of this
Agreement and the other Transaction Documents, the Borrower is entitled to deal
with the Collateral in the ordinary course of business in accordance with the
terms and provisions of the Master Receivables Purchase Agreement, the Loan
Agreement, the Loan Note and the other Transaction Documents.
2.6 Default
The Borrower shall be in default under this Agreement upon the occurrence of any
Termination Event.
2.7 Rights and Remedies
Should the Obligations be accelerated pursuant to Section 3.2 of the Loan
Agreement, the Collateral Agent may exercise any or all of the rights and
remedies contained in this Agreement or otherwise afforded by law, in equity or
otherwise. The Collateral Agent shall have the right to enforce one or more
remedies successively or concurrently in accordance with applicable law and the
Collateral Agent expressly retains all rights and remedies not inconsistent with
the provisions in this Agreement including all the rights it may have under the
PPSA. Without limiting the generality of the foregoing, the Collateral Agent
may, upon acceleration of the Obligations and to the extent permitted by
applicable law:
(a) Collection of Purchased Interest - (i) on written notice to the
Borrower and the Administrator, exercise (in whole or in part) any
and all rights, remedies, powers and privileges of the Borrower
pursuant to the Master Receivables Purchase Agreement and the other
Transaction Documents (including the appointment of a successor
Servicer) to the extent that they constitute or relate to the
Collateral in the place and stead and to the exclusion of the
Borrower and the Administrator, and upon such notice the
Administrator shall cease to have any powers to act as agent and
administrator for and on behalf of the Trustee under the Master
Receivables Purchase Agreement, or (ii) notify and direct the
Obligors under any Receivable to make all payments whatever to the
Collateral Agent or its agent or designee and the Collateral Agent or
its agent or designee shall be entitled to hold such amounts received
and any proceeds thereof as part of the Collateral. Any amounts
received by the Borrower after such notification shall be deemed to
be held in trust for the Collateral Agent (in the same medium
received) and shall be turned over to the Collateral Agent or its
agent or designee at the request of the Collateral Agent;
(b) Retain the Collateral - Retain and administer the Collateral in the
Collateral Agent's sole and unfettered discretion, which discretion
the Borrower hereby acknowledges is commercially reasonable, and may
exercise the Borrower's rights and remedies under the Master
Receivables Purchase Agreement, the Servicing Agreement, the Hedging
Arrangements and the Assignments;
(c) Dispose of the Collateral - Dispose of any Collateral with or without
notice, advertising or any other formality, all of which is hereby
waived by the Borrower to the extent permitted by law. The Collateral
Agent may, to the extent permitted
-4-
by law, at their discretion establish the terms of such disposition.
All payments made pursuant to such dispositions shall be credited
against the Obligations only as they are actually received. The
Collateral Agent may, to the extent permitted by law, enter into,
rescind or vary any contract for the disposition of any Collateral
and may dispose of any Collateral again without being answerable for
any loss occasioned thereby;
(d) Payment of Encumbrances - Pay any encumbrance, lien, claim or charge
that may exist or be threatened against the Collateral. Any amount so
paid together with costs, charges and expenses incurred in connection
therewith shall be added to the Obligations;
(e) Dealing with Collateral - Subject to applicable law, seize, collect,
realize, borrow money on the security of, release to third parties,
sell or otherwise deal with the Collateral in such manner, upon such
terms and conditions, at such time or times and place or places and
for such consideration as may seem to the Collateral Agent advisable
and without notice to the Borrower. The Collateral Agent may charge
on its own behalf and pay to others sums for expenses incurred and
for services rendered (expressly including without limitation, legal,
consulting, broker, management, receivership and accounting fees) in
or in connection with seizing, collecting, realizing, borrowing on
the security of, selling or obtaining payment of the Collateral and
may add all such sums to the Obligations;
(f) Possession - Immediately take possession of all of the Collateral or
any part or parts thereof by action or otherwise, with power, among
other things, to exclude the Borrower, to preserve and maintain the
Collateral and make additions and replacements thereto and pay
therefrom all reasonable expenses and charges of maintaining,
preserving, protecting and operating the Collateral (payment of which
may be necessary to preserve or protect the Collateral) and all sums
expended shall be added to the Obligations;
(g) Proofs of Claim - File proofs of claim and other documents to
establish its claim in any proceedings relative to the Borrower;
(h) Actions or Proceedings - With or without taking possession of all or
any part of the Collateral and at the Borrower's expense, take any
action or proceedings to observe or perform or cause to be observed
or performed any covenant, agreement, proviso or stipulation relating
to any of the Collateral, when and to the extent the Collateral Agent
deems advisable; and
(i) Other Remedies - exercise or pursue any other remedy or proceeding
which the Collateral Agent is entitled, authorized or permitted
hereby or by law or in equity in order to enforce the security
constituted by this Agreement.
2.8 Power of Attorney
Upon the occurrence, and during the continuance of, a Termination Event, or a
Potential Termination Event, and, in respect of the execution of the Purchaser
Assignment referred to in Sections 1.7(e)(i) and 1.10(e)(iii) of the Master
Receivables Purchase Agreement, the fulfillment
-5-
of the transactions contemplated in Sections 1.7(e)(i) and 1.10(e)(iii) of the
Master Receivables Purchase Agreement and the execution of documents referred to
in Section 6.7(b) hereof, the Borrower hereby constitutes and appoints any agent
or representative from the Collateral Agent from time to time, or any receiver
appointed of the Borrower as provided for in this Agreement, the true and lawful
attorney of the Borrower irrevocably with full power of substitution to do, make
and execute all such documents, acts, matters or things with the right to use
the name of the Borrower whenever and wherever it may be deemed necessary or
expedient in connection with the exercise of its rights and remedies set forth
in this Agreement or in Section 1.7(e)(i) of the Master Receivables Purchase
Agreement, respectively. Without limiting the generality of the foregoing, the
Collateral Agent or its agent is authorized to sign any financing statements and
similar forms which may be necessary or desirable to perfect the Security
Interest in any jurisdiction on behalf of the Borrower. The Borrower hereby
declares that the irrevocable power of attorney granted hereby, being coupled
with an interest, is given for valuable consideration.
2.9 Payment of Deficiency
If the proceeds of realization are insufficient to pay all monetary Obligations,
the Borrower shall forthwith pay or cause to be paid to the Collateral Agent any
deficiency and the Collateral Agent may sue the Borrower to collect the amount
of such deficiency.
2.10 Assemble the Collateral
To assist the Collateral Agent in the implementation of such rights and
remedies, the Borrower will, at its own risk and expense and immediately upon
the Collateral Agent's request, assemble and prepare for removal such items of
the Collateral as are selected by the Collateral Agent as shall, in the
Collateral Agent's sole judgment, have a value sufficient to cover all the
Obligations.
2.11 Allocation of proceeds
All monies collected or received by the Collateral Agent in respect of the
Collateral may be held by the Collateral Agent and will be applied in accordance
with the Master Receivables Purchase Agreement or Article 6 of this Agreement.
2.12 Waivers and Extensions
The Collateral Agent or the Lender may waive any default or breach by the
Borrower of any of the provisions contained in this Agreement. No waiver shall
extend to a subsequent breach or default, whether or not the subsequent breach
or default is the same as, or similar to, the breach or default waived and no
act or omission of the Collateral Agent shall extend to or be taken in any
manner whatsoever to affect any subsequent breach or default of the Borrower or
the rights of the Collateral Agent or the Lender resulting therefrom. Any such
waiver must be in writing and signed by the Collateral Agent or the Lender to be
effective.
Either the Collateral Agent or the Lender may also grant extensions of time and
other indulgences, accept compositions, grant releases and discharges, release
the Collateral to third parties and otherwise deal with the Borrower's
guarantors or sureties and others and with the Collateral and other securities
as they may see fit without prejudice to the liability of the Borrower to the
Lender or the Collateral Agent, or the Lender's or Collateral Agent's rights,
-6-
remedies and powers under this Agreement. No extension of time, forbearance,
indulgence or other accommodation now, heretofore or hereafter given by the
Lender or the Collateral Agent to the Borrower shall operate as a waiver,
alteration or amendment of the rights of the Lender or the Collateral Agent or
otherwise preclude the Lender or the Collateral Agent from enforcing such
rights.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES
3.1 Representations and Warranties of the Borrower and AmeriCredit Canada
On each Purchase Date, Determination Date, Settlement Date and Funding Date, the
Borrower, the Servicer and AmeriCredit Canada jointly and severally represent
and warrant to the Lender, the Administrator and the Collateral Agent that:
(a) Existence and Power. The Borrower is a trust duly organized, validly
existing and in good standing under the laws of Ontario and has all
power and all material governmental licenses, authorizations,
consents and approvals required to carry on its business in each
jurisdiction in which its business is now conducted. The Borrower is
duly qualified to do business in, and is in good standing in, every
other jurisdiction in which the nature of its business requires it to
be so qualified.
(b) Authorization; Contravention. The execution, delivery and performance
by the Borrower of this Agreement and the other Transaction Documents
are within the Borrower's trust powers, have been duly authorized by
all necessary trust action, require no action by or in respect of, or
require the consent or approval of, or the filing of any notice or
other documentation with, any Governmental Authority or other Person
and do not contravene, or constitute a default under, any provision
of applicable law or regulation or of the Trust Declaration or of any
agreement, judgment, injunction, order, decree or other instrument
binding upon the Borrower or result in the creation or imposition of
any Adverse Claim on the assets of the Borrower.
(c) Binding Effect. Each of this Agreement and the other Transaction
Documents has been duly executed and delivered and constitutes the
legal, valid and binding obligation of the Borrower, enforceable in
accordance with its terms, subject to applicable bankruptcy,
insolvency, moratorium or other similar laws affecting the rights of
creditors generally.
(d) Perfection. Both immediately preceding and after giving effect to
each Funding, the Borrower shall be the legal and beneficial owner of
all of the Receivables, Related Security and Collections, free and
clear of all Adverse Claims. On or prior to each Funding and each day
on which a Receivable is sold to the Borrower by AmeriCredit Canada
pursuant to the Master Receivables Purchase Agreement, all financing
statements and other documents required to be recorded or filed in
order to perfect and protect (subject to any security interests
perfected by possession) (i) the Borrower's interest in the
Receivables, the Related Security with respect thereto and all
Proceeds thereof against all Persons and (ii) the interest of the
Lender in the Collateral against all Persons and the Borrower will
-7-
have been duly filed in each filing office necessary for such
purpose, and all filing fees and taxes, if any, payable in connection
with such filings shall have been paid in full.
(e) Accuracy of Information. All information heretofore furnished by the
Borrower to the Collateral Agent, the Lender or any of the other
Persons party hereto for purposes of or in connection with this
Agreement, the other Transaction Documents or any transaction
contemplated hereby or thereby is, and all such information hereafter
furnished by the Borrower to any such Person will be, true and
accurate in every material respect, and the Borrower has not omitted
to disclose any information which is material to the transaction on
the date such information is furnished.
(f) Tax Status. All tax returns (federal, provincial and local) required
to be filed with respect to the Borrower have been filed and there
has been paid or adequate provision made for the payment of all
material taxes, assessments and other governmental charges in respect
of the Borrower.
(g) Action, Suits. There are no actions, suits or proceedings pending, or
to the knowledge of the Borrower threatened, against or affecting the
Borrower or its properties in or before any court, arbitrator or
other body. The Borrower is not in violation of any order of any
Governmental Authority.
(h) Use of Proceeds. The proceeds of any Funding will be used by the
Borrower to (i) acquire the Receivables and the Related Security from
AmeriCredit Canada pursuant to the Master Receivables Purchase
Agreement or (ii) as otherwise expressly permitted by the Transaction
Documents.
(i) Place of Business. (i) The principal place of business and chief
executive office (as such terms are defined in the PPSA) of the
Borrower and the office where the Borrower keeps its records and (ii)
the office where the Borrower keeps its Records concerning the
Receivables and Related Security, respectively are located at:
(i) 320 Bay Street
Toronto, Ontario M5H 4A6; and
(ii) 4001 Embarcadero Drive
Arlington, Texas 76014
(j) Good Title. Upon each Funding and on each day on which a Receivable
and Related Security is sold to the Borrower by AmeriCredit Canada
pursuant to the Master Receivables Purchase Agreement, the Collateral
Agent on behalf of the Lender shall acquire a valid and perfected
first priority security interest in each Receivable and Related
Security that exists on the date of such Funding and sale and in the
Collections with respect thereto free and clear of any Adverse Claim.
(k) Nature of Receivables. Each Receivable represented by the Borrower or
Servicer (to the extent the Servicer is AmeriCredit Canada or any
Subsidiary or Affiliate of
-8-
AmeriCredit Canada) to be an Eligible Receivable (including in any
report, document or instrument delivered hereunder or in connection
with the other Transaction Documents) satisfies at the time of such
representation or inclusion the definition of "Eligible Receivable"
set forth in the Master Receivables Purchase Agreement.
(l) Collection and Servicing; Material Adverse Effect. Since October 10,
2001, there has not been any material adverse change in the ability of
the Servicer (to the extent the Servicer is AmeriCredit Canada or any
Subsidiary or Affiliate of AmeriCredit Canada) to service and collect
the Receivables.
(m) No Termination Event. No event has occurred and is continuing and no
condition exists which constitutes a Termination Event or a Potential
Termination Event.
(n) Bulk Sales. No transaction contemplated hereby or by the Master
Receivables Purchase Agreement requires compliance with any bulk sales
act or similar law.
(o) Transfers Under Master Receivables Purchase Agreement. Each Receivable
which has been transferred to the Borrower by AmeriCredit Canada has
been purchased by the Borrower from AmeriCredit Canada pursuant to,
and in accordance with, the terms of the Master Receivables Purchase
Agreement.
(p) Insurance Policies. At the time of the sale of each Receivable and
Related Security by AmeriCredit Canada to the Borrower pursuant to the
Master Receivables Purchase Agreement, each Financed Vehicle is
required to be covered by physical damage insurance obtained by the
related Obligor at least in the amount required by the related
Receivable, and each such required insurance policy is required to
name AmeriCredit Canada as loss payee and is required to be in full
force and effect.
(q) Not Non-Resident. The Borrower is not a non-resident of Canada within
the meaning of the Income Tax Act (Canada).
(r) Name of Borrower; Trust Declaration. The Borrower has not changed its
name and the Trust Declaration has neither been amended nor rescinded.
(s) Compliance. The Borrower has complied in all material respects with
all Laws in respect of the conduct of its business and ownership of
its property including the Receivables and the other Collateral.
(t) No Servicer Termination Event. No event has occurred and is continuing
and no condition exists which constitutes a Servicer Termination Event
or a Potential Servicer Termination Event.
(u) Preference; Voidability. With respect to each transfer of Receivables
and Related Security from the Seller to the Borrower, the Borrower has
given reasonably equivalent value to the Seller, in consideration for
such transfer of Receivables and Related Security, and each such
transfer has not been made for or on account of an antecedent debt
owed by the Seller to the Borrower and no such transfer is
-9-
or may be voidable under any Section of the Bankruptcy and Insolvency
Act (Canada).
3.2 Representations and Warranties of the Servicer
On each Purchase Date, Determination Date, Settlement Date and Funding Date,
AmeriCredit Canada, in its capacity as the initial Servicer, represents and
warrants to the Lender and the Collateral Agent each of the representations and
warranties made by it under the Servicing Agreement as if each such
representation and warranty were specifically set out herein.
3.3 Survival
The representations and warranties set forth in Sections 3.1 and 3.2 will
survive the date hereof, each Purchase Date and each Funding Date and remain in
full force and effect for the benefit of the Lender and the Collateral Agent.
3.4 Deemed Warranties
Any document, instrument, certificate or notice delivered hereunder by the
Borrower to the Lender or the Collateral Agent shall be deemed a representation
and warranty by the Borrower.
ARTICLE 4
COVENANTS
4.1 Affirmative Covenants of AmeriCredit Canada
At all times from the date hereof to the later to occur of (i) the Facility
Termination Date or (ii) the date on which the Net Loan Investment has been
reduced to zero and all amounts owing under this Agreement, the Loan Agreement,
the Loan Note and the other Transaction Documents shall have been paid in full
in cash, unless the Collateral Agent and the Lender shall otherwise consent in
writing:
(a) Financial Reporting and Other Information. AmeriCredit Canada shall,
and shall cause AmeriCredit Corp. (in respect of items (i) and (ii)
only) to, maintain, for itself and each of its respective
Subsidiaries, a system of accounting established and administered in
accordance with GAAP, and furnish to the Collateral Agent:
(i) Annual Reporting. As soon as available and in any event within
90 days (or the next succeeding Business Day if the last day of
such period is not a Business Day) after the end of each fiscal
year, a copy of the audited consolidated financial statements for
such year for AmeriCredit Corp. and its consolidated Subsidiaries
prepared in accordance with United States GAAP and any management
letter (which letter shall be furnished as soon as available)
prepared by independent certified public accountants acceptable
to the Collateral Agent, certified, without qualification by such
accountants and each other report or statement sent to
shareholders or publicly filed by AmeriCredit Corp.
(ii) Quarterly Reporting. As soon as available and in any event within
45 days (or the next succeeding Business Day if the last day of
such period is not a
-10-
Business Day) after the end of each of the first three quarters
of each fiscal year of AmeriCredit Corp., a consolidated balance
sheet of AmeriCredit Corp. and its consolidated Subsidiaries as
of the end of such quarter and including the prior comparable
period, and a consolidated statement of income of AmeriCredit
Corp. and its consolidated Subsidiaries for such quarter and for
the period commencing at the end of the previous fiscal year and
ending with the end of such quarter, certified by the chief
financial officer or chief accounting officer of AmeriCredit
Corp. identifying such documents as being the documents described
in this Section 4.1(a)(ii) and stating that the information set
forth therein fairly presents the financial condition of
AmeriCredit Corp. and its consolidated Subsidiaries as of and for
the periods then ended, subject to year-end adjustments
consisting only of normal, recurring accruals.
(iii) Notice of Termination Events or Potential Termination Events,
Etc. (A) As soon as possible and in any event within two (2) days
after the occurrence of each Termination Event, each Potential
Termination Event or each Servicer Termination Event, a statement
of the chief financial officer, chief accounting officer or
treasurer of the Servicer (to the extent the Servicer is
AmeriCredit Canada or any Subsidiary or Affiliate of AmeriCredit
Canada) setting forth details of such Termination Event,
Potential Termination Event or Servicer Termination Event and the
action which the Borrower proposes to take with respect thereto,
which information shall be updated promptly from time to time;
(B) promptly after the Borrower or Administrator obtains
knowledge thereof, notice of any litigation, investigation or
proceeding that may exist at any time between the Servicer (to
the extent the Servicer is AmeriCredit Canada or any Subsidiary
or Affiliate of AmeriCredit Canada) and any Person that may
result in a Material Adverse Effect or any litigation or
proceeding relating to any Transaction Document; and (C) promptly
after the occurrence thereof, notice of any event which could
reasonably be expected to have a Material Adverse Effect.
(iv) Debt Rating Notification. Within five (5) days after the date of
any change in AmeriCredit Corp.'s public or private debt ratings,
if any, a written certification of AmeriCredit Corp.'s public and
private debt ratings after giving effect to any such change.
(v) Other Information. Such other information (including non-
financial information) with respect to the Borrower, AmeriCredit
Corp. or AmeriCredit Canada or any of their respective Affiliates
as the Collateral Agent or the Lender may from time to time
reasonably request.
(b) Conduct of Business.
(i) AmeriCredit Canada shall, and shall cause AmeriCredi Canada's
Subsidiaries to, carry on and conduct its business in
substantially the same manner and in substantially the same
fields of enterprise as it is presently conducted and do all
things necessary to remain duly organized, validly
-11-
existing and in good standing as a domestic corporation in its
jurisdiction of organization and maintain all requisite authority
to conduct its business in each jurisdiction in which its
business is conducted; and
(ii) AmeriCredit Canada shall cause the Borrower to do all things
necessary to remain as a trust duly organized, validly existing
and in good standing under the laws of Ontario and to maintain
the Trust Declaration without amendment or rescission thereto.
(c) Compliance with Laws. AmeriCredit Canada shall, and shall cause the
Borrower and shall cause AmeriCredit Canada's Subsidiaries to, comply
with all laws, rules, regulations, orders, writs, judgments,
injunctions, decrees or awards to which it or its respective properties
may be subject.
(d) Furnishing of Information, Servicer's Report and Inspection of Records.
AmeriCredit Canada shall, and shall cause the Borrower to, furnish to
the Collateral Agent from time to time such information with respect to
the Receivables as the Collateral Agent may reasonably request,
including, without limitation, listings identifying the Obligor and the
outstanding balance for each Receivable. The Servicer shall furnish to
the Collateral Agent on each Determination Date a Servicer's Report.
AmeriCredit Canada shall, and shall cause the Borrower to, at any time
and from time to time, during regular business hours, on at least five
Business Days' (or if a Termination Event or Potential Termination
Event has occurred, one Business Day's) notice, permit the Collateral
Agent or the Lender, or their agent or representatives, (i) to examine
and make copies of and take abstracts from all Records and (ii) to
visit the offices and properties of the Borrower and/or AmeriCredit
Canada, as applicable, for the purpose of examining such Records, and
to discuss matters relating to Receivables or the Borrower's or
AmeriCredit Canada's performance hereunder and under the other
Transaction Documents to which such Person is a party with any of the
officers, directors, employees or chartered accountants of the Borrower
or AmeriCredit Canada, as applicable, having knowledge of such matters.
(e) Offices, Records and Books of Account. AmeriCredit Canada shall cause
the Borrower (i) to keep its principal place of business and chief
executive office (as such terms or similar terms are used in the PPSA)
and the office where it keeps its records concerning the Receivables at
the address of the Borrower set forth in Section 8.2 or at any other
locations in a province in Canada other than Quebec where all actions
requested by the Secured Parties to protect and perfect the interest of
the Collateral Agent, in the Collateral have been taken and completed
and (ii) to provide the Lender and the Collateral Agent with at least
30 days' written notice before making any change in the Borrower's name
or making any other change in the Borrower's location, identity or
corporate structure that could render any Financing Statement filed in
connection with the Transaction Documents ineffective to perfect the
security interest with respect to which such Financing Statement was
filed. Each notice to the Lender and the Collateral Agent pursuant to
the foregoing sentence shall set forth the applicable change and the
effective date thereof. AmeriCredit Canada shall maintain and implement
administrative and operating procedures (including, without limitation,
an ability
-12-
to recreate records evidencing Receivables in the event of the
destruction of the originals thereof), and keep and maintain, all
documents, books, records and other information reasonably
necessary or advisable for the collection of all Receivables
(including, without limitation, records adequate to permit the
daily identification of each new Receivable and all Collections
of and adjustments to each existing Receivable). AmeriCredit
Canada shall, and shall cause the Borrower to, give the
Collateral Agent notice of any material change in the
administrative and operating procedures of the Borrower or
AmeriCredit Canada, as applicable, referred to in the previous
sentence.
(f) Performance and Compliance with the Receivables. AmeriCredit
Canada, at its expense, shall cause the Borrower to, timely and
fully perform and comply with all material provisions, covenants
and other promises required to be observed by the Borrower or
AmeriCredit Canada in respect of the Receivables except where the
failure to do so could not be reasonably expected to have a
Material Adverse Effect.
(g) Credit and Collection Policies. AmeriCredit Canada shall, and
shall cause the Borrower to, comply in all material respects with
the Credit and Collection Policy in regard to each Receivable.
4.2 Negative Covenants of AmeriCredit Canada
At all times from the date hereof to the later to occur of (i) the Facility
Termination Date or (ii) the date on which the Net Loan Investment has been
reduced to zero and all amounts owing under this Agreement, the Loan Agreement,
the Loan Note and the other Transaction Documents shall have been paid in full
in cash, unless the Collateral Agent and the Lender shall otherwise consent in
writing:
(a) No Sales, Liens, Etc. Except as otherwise provided herein and in
the Master Receivables Purchase Agreement, AmeriCredit Canada
shall not, and shall not permit the Borrower to, sell, assign (by
operation of law or otherwise) or otherwise dispose of, or create
or suffer to exist any Adverse Claim (or the filing of any
financing statement) upon or with respect to any of the
Collateral, or any account to which any Collections of any
Receivable are sent, or assign any right to receive income in
respect thereof.
(b) No Extension or Amendment of Receivables. Except as otherwise
permitted pursuant to the Servicing Agreement or the Credit and
Collection Policy, AmeriCredit Canada shall not, and shall not
permit the Borrower to, extend, amend, waive or otherwise modify
any term or condition of any Receivable.
(c) No Amendment of Master Receivables Purchase Agreement.
AmeriCredit Canada shall not, and shall not permit the Borrower
to, amend, supplement or otherwise modify the Master Receivables
Purchase Agreement or the Servicing Agreement or waive any
provision thereof, in each case except with the prior written
consent of the Collateral Agent and the Lender; nor shall
AmeriCredit Canada take, or permit the Borrower to take, any
other action under the Master Receivables
-13-
Purchase Agreement or the Servicing Agreement that could be
reasonably expected to have a Material Adverse Effect.
(d) No Amendment of Administration Agreement. AmeriCredit Canada
shall not, in its capacity as Administrator, amend, supplement or
otherwise modify the Administration Agreement without the prior
written consent of the Collateral Agent and the Lender.
(e) Change of Name, Etc. AmeriCredit Canada shall not, and shall not
permit the Borrower to, change its name, identity or structure or
the location of its chief executive office or place of business,
unless at least 30 days prior to the effective date of any such
change the Borrower or AmeriCredit Canada, as applicable,
delivers to the Lender and the Collateral Agent such documents,
instruments or agreements, executed by AmeriCredit Canada, the
Borrower or the Collateral Agent, as applicable, as are necessary
to reflect such change and to continue the perfection of the
Collateral Agent's security interest in the Collateral.
AmeriCredit Canada shall not, and shall not permit the Borrower
to, change the location of its chief executive office or place of
business except to a province in Canada other than Quebec.
4.3 Hedging Arrangements
The Borrower shall (i) at or prior to the time of any Funding, provide to the
Lender and the Collateral Agent an Officer's Certificate stating that the
Borrower has Hedging Arrangements in place satisfying the conditions of this
Section 4.3 as set forth below, and (ii) in connection with any Servicer's
Certificate provided hereunder and to the extent not previously provided,
provide an executed copy of all existing Hedging Arrangements, which Hedging
Arrangements shall be satisfactory to the Collateral Agent and with respect to
which the Borrower shall be the beneficiary, in respect of an aggregate notional
amount at least equal to the Net Loan Investment, and if such Hedging
Arrangement is a swap, not greater than the Aggregate Outstanding Balance of
Eligible Receivables at such time related to such swap. On each Funding Date,
the notional balance of the Hedging Arrangement shall be in an amount at least
equal to the Net Loan Investment and, in the case of a swap, not exceeding the
Aggregate Outstanding Balance of Eligible Receivables at such time (including
any Receivables to be added in connection with such Funding). The form and
structure and counterparty to each Hedging Arrangement shall be acceptable to
the Collateral Agent and the Lender and each Hedging Arrangement must be in full
force and effect at all times during which the Net Loan Investment is greater
than zero. Any counterparty to a Hedging Arrangement shall have a long term
unsecured debt rating of at least A2 from Moody's and A from S&P. With respect
to each Funding, the related Hedging Arrangement shall provide that (a) the
strike rate, if such Hedging Arrangement is an interest rate cap agreement, and
(b) the fixed rate, if such Hedging Arrangement is a swap, is 11.25% less than
the weighted average Annual Percentage Rate on the Receivables related to such
Funding. The related amortization schedule of the Hedging Arrangement shall be
calculated using an ABS prepayment speed of no greater than (x) 0.75%, if such
Hedging Arrangement is an interest rate cap agreement and (y) 1.4%, if such
Hedging Arrangement is a swap. With respect to any Hedging Arrangement, (i) on
and after the Facility Termination Date or the occurrence of a Termination Event
or Potential Termination Event, the Collateral Agent shall have the right, in
its sole discretion, to direct the Borrower's actions with respect thereto and
(ii) the related amortization schedule shall be approved by the Collateral
Agent.
-14-
ARTICLE 5
ACCOUNTS
5.1 Accounts
(a) On or prior to the Closing Date, the Servicer shall establish
and maintain, in the name of the Borrower for the benefit of the
Borrower, the Collateral Agent and the Secured Parties, the
following accounts:
(i) an Eligible Deposit Account (the "Collection Account"),
bearing a designation clearly indicating that the funds
deposited therein are held for the benefit of the Borrower,
and subject to the Security Interest in favour of the
Collateral Agent and the Secured Parties.
(ii) an Eligible Deposit Account (the "Cash Reserve Account"),
bearing a designation clearly indicating that the funds
deposited therein are held for the benefit of the Borrower,
and subject to the Security Interest in favour of the
Collateral Agent and the Secured Parties.
(iii) Prior to the completion of the Registration Conditions the
Collection Account and the Cash Reserve Account shall be
established at Bank of Montreal and shall be administered
by the Collateral Agent in accordance with subsections (b)
and (c) below and following the completion of the
Registration Conditions such accounts shall be transferred
to The Bank of Nova Scotia and administered by the Servicer
in accordance with subsections (d) and (e) below.
(b) Prior to the completion of the Registration Conditions and
subject to Section 5.2, funds on deposit in the Trust Accounts
shall be invested or reinvested by the Collateral Agent in
Eligible Investments selected by and directed in writing by the
Servicer (which written direction may be in the form of standing
instructions); provided, however, it is understood and agreed
that the Collateral Agent shall not be liable for the selection
of, or any loss arising from such investment in, Eligible
Investments. All such Eligible Investments shall be held by the
Collateral Agent for the benefit of the Borrower, and subject to
the Security Interest in favour of the Collateral Agent and the
Secured Parties, provided that on the Business Day prior to each
Settlement Date all Investment Earnings on funds on deposit
therein shall be deposited into the Collection Account and shall
be deemed to constitute a portion of the Available Funds for such
Settlement Date. Funds on deposit in the Trust Accounts shall be
invested in Eligible Investments that will mature so that such
funds will be available at the close of business on the Business
Day preceding each Settlement Date. Funds deposited in a Trust
Account on the Business Day that precedes a Settlement Date upon
the maturity of any Eligible Investments are not required to be
invested overnight.
(c) Prior to the completion of the Registration Conditions, the
Collateral Agent shall possess all right, title and interest in
all funds on deposit from time to time in the Trust Accounts and
in all proceeds thereof (including all income thereon) and all
such funds, investments, proceeds and income shall be part of the
Collateral. The
-15-
Trust Accounts shall be under the sole dominion and control of
the Collateral Agent for the benefit of the Lender. If, at any
time, any of the Trust Accounts ceases to be an Eligible Deposit
Account, the Collateral Agent (or the Servicer on its behalf)
shall within 10 Business Days establish a new Trust Account as an
Eligible Deposit Account and shall transfer any cash and/or any
investments to such new Trust Account.
(d) Following the completion of the Registration Conditions and
subject to Section 5.2, funds on deposit in the Trust Accounts
shall be invested or reinvested by the Servicer in Eligible
Investments selected by the Servicer. All such Eligible
Investments shall be held by the Borrower, and subject to the
Security Interest in favour of the Collateral Agent and the
Secured Parties, provided that on the Business Day prior to each
Settlement Date all Investment Earnings on funds on deposit
therein shall be deposited into the Collection Account and shall
be deemed to constitute a portion of the Available Funds for such
Settlement Date. Funds on deposit in the Trust Accounts shall be
invested in Eligible Investments that will mature so that such
funds will be available at the close of business on the Business
Day preceding each Settlement Date. Funds deposited in a Trust
Account on the Business Day that precedes a Settlement Date upon
the maturity of any Eligible Investments are not required to be
invested overnight.
(e) Following the completion of the Registration Conditions, the
Borrower shall possess all right, title and interest in all funds
on deposit from time to time in the Trust Accounts and in all
proceeds thereof (including all income thereon) and all such
funds, investments, proceeds and income shall be part of the
Collateral. Subject to the terms of the Account Control Agreement
being entered into with The Bank of Nova Scotia in respect of the
Trust Accounts, the Trust Accounts shall be under the sole
dominion and control of the Borrower for the benefit of
Collateral Agent and the Lender with access to be provided to the
Servicer solely for the purpose of complying with the terms of
this Agreement and the other Transaction Documents until such
time as the Collateral Agent provides the Borrower and the
Servicer with a copy of a notice provided to The Bank of Nova
Scotia in accordance with the terms of the above referenced
Account Control Agreement. If, at any time, any of the Trust
Accounts ceases to be an Eligible Deposit Account, the Servicer
shall within 10 Business Days establish a new Trust Account as an
Eligible Deposit Account and shall transfer any cash and/or any
investments to such new Trust Account.
(f) If the Collateral Agent or the Lender reasonably believes that
the deposit of funds into the Depository Account in connection
with the transactions described in the Transaction Documents are
in jeopardy of being misdirected to another Person and have
provided written notice to that effect to the Servicer and
AmeriCredit Canada then the Servicer or AmeriCredit Canada shall
use their reasonable commercial efforts to arrange for all
Persons with an interest in the funds on deposit in the
Depository Account to enter into an intercreditor agreement in
form and substance satisfactory to the Collateral Agent as to the
relative priorities of such Persons with respect to such funds.
In addition, if the Borrower, the Servicer or AmeriCredit Canada
enters into any type of intercreditor arrangement with any
-16-
other Person with respect to the Depository Account the Servicer
shall notify the Collateral Agent of same and shall use its
reasonable commercial efforts to provide similar arrangements to
the Collateral Agent upon the Collateral Agent's request to do
so.
5.2 General Provisions Regarding Trust Accounts
(a) Prior to the completion of the Registration Conditions, so long
as no Termination Event shall have occurred and be continuing,
all or a portion of the funds in the Trust Accounts shall be
invested in Eligible Investments and reinvested by the Collateral
Agent subject to the provisions of Section 5.1(b) of this
Agreement. All income or other gain from investments of moneys
deposited in the Trust Accounts shall be deposited by the
Collateral Agent into the Collection Account, and any loss or
expenses resulting from such investments shall be charged to such
account. The Servicer or Borrower will not direct the Collateral
Agent to make any investment of any funds or to sell any
investment held in any of the Trust Accounts unless the security
interest granted and perfected in such account will continue to
be perfected in such investment or the proceeds of such sale, in
either case without any further action by any Person.
(b) Prior to the completion of the Registration Conditions, if: (i)
the Borrower or Servicer shall have failed to give investment
directions for any funds on deposit in the Trust Accounts to the
Collateral Agent by 11:00 a.m. (Toronto time) (or such other time
as may be agreed by the Servicer and the Collateral Agent) on any
Business Day; or (ii) a Termination Event shall have occurred and
be continuing then the Collateral Agent shall, to the fullest
extent practicable, invest and reinvest funds in the Trust
Accounts in one or more Eligible Investments selected by the
Collateral Agent.
(c) Following the completion of the Registration Conditions, all or a
portion of the funds in the Trust Accounts shall be invested in
Eligible Investments and reinvested by the Servicer subject to
the provisions of Section 5.1(b) of this Agreement. All income or
other gain from investments of moneys deposited in the Trust
Accounts shall be deposited by the Servicer into the Collection
Account, and any loss or expenses resulting from such investments
shall be charged to such account. The Servicer or Borrower will
not make any investment of any funds or sell any investment held
in any of the Trust Accounts unless the security interest granted
and perfected in such account will continue to be perfected in
such investment or the proceeds of such sale, in either case
without any further action by any Person.
ARTICLE 6
COLLECTIONS; DISTRIBUTIONS AND PAYMENTS
6.1 Collections
(a) Each of the Borrower, AmeriCredit Canada and the Servicer shall,
and the Servicer shall cause any subservicer to, remit within two
Business Days of receipt thereof to the Collection Account all
payments by or on behalf of the Obligors
-17-
with respect to the Receivables, and all Liquidation Proceeds and
other recoveries, both as collected during the Monthly Period.
Notwithstanding the foregoing, for so long as: (i) AmeriCredit
Canada remains the Servicer, (ii) no Servicer Termination Event
shall have occurred and be continuing, and (iii) AmeriCredit
Canada maintains a long term rating of at least A (low) by DBRS
and AmeriCredit maintains a short term rating of at least A-1 by
S&P, the Servicer shall remit such collections with respect to
each Monthly Period to the Collection Account on the Business Day
preceding the related Settlement Date. For purposes of this
Article 6, the phrase "payments by or on behalf of the Obligors"
shall mean payments made with respect to the Receivables by
Persons other than the Servicer or the Seller.
(b) Collections shall not include any amounts paid by Obligors during
such Collection Period that (i) were collected in the Depository
Account and (ii) did not relate to the Receivables. On each
Settlement Date the Servicer shall pay or distribute to the
Seller all amounts on deposit in the Collection Account for the
related Collection Period that do not relate to the amounts
described in clauses (i) and (ii) above in accordance with the
instructions contained in the Servicer's Certificate for such
Settlement Date.
(c) The Servicer will also be entitled to be reimbursed from amounts
on deposit in the Collection Account with respect to a Collection
Period for amounts previously deposited in the Collection Account
but later determined by the Seller to have resulted from mistaken
deposits or postings or cheques returned for insufficient funds.
The amount to be reimbursed hereunder shall be paid to the
Servicer on the related Settlement Date pursuant to Section
6.4(b)(iii) upon certification by the Servicer of such amounts in
the related Servicer's Certificate and the provision of such
information to the Collateral Agent as may be necessary in the
opinion of the Collateral Agent to verify the accuracy of such
certification; provided, however, that the Servicer must provide
such clarification within 3 months of such mistaken deposit,
posting, or returned cheque, provided that such reimbursement
shall not be made following the distribution of related funds
pursuant to Section 6.4 hereof.
6.2 Application of Collections
(a) With respect to each Receivable, all Collections for the Monthly
Period shall be applied to the related Scheduled Receivables
Payment.
(b) All Liquidation Proceeds shall be applied to the related
Receivable.
6.3 Additional Deposits
The Servicer and the Seller shall deposit or cause to be deposited in the
Collection Account the Aggregate Outstanding Balance with respect to Receivables
and any Monthly Period on the Business Day preceding the Settlement Date for the
Monthly Period in which the obligation to pay any Outstanding Balance arose. The
Servicer will deposit the Aggregate Outstanding Balance with respect to
Purchased Receivables when such obligations are due, unless the Servicer shall
not be required to make daily deposits pursuant to Section 6.1.
-18-
6.4 Distributions
(a) On each Determination Date with respect to the prior Monthly
Period and the related Settlement Date, the Servicer shall
calculate the Monthly Collections, the Available Funds, the
Servicing Fee, the Administration Fee, the Trust Expenses, the
Targeted Monthly Principal Payment, the Targeted Additional
Monthly Principal Payment, the Loan Note Funding Costs, the net
amount, if any, payable by the Borrower under the Hedging
Arrangements, the Investment Earnings, the accrued and unpaid
interest on the Seller Loan Note Balance, the Targeted Seller
Loan Principal Payment and all other amounts required to
determine the amounts, if any, to be deposited in or paid from
each of the Trust Accounts on or before the related Settlement
Date (or, in the case of payments, if any, due under the Hedging
Arrangements, on the Business Day preceding the Settlement Date).
Based on such calculations, the Servicer shall deliver to the
Collateral Agent a Servicer's Certificate specifying such amounts
and, depending upon whether the Registration Conditions have been
satisfied, either instucting the Collateral Agent to make, or
advising the Collateral Agent that the Servicer is making,
withdrawals, deposits and payments of the amounts necessary to
make the distributions and payments provided for in Sections 6.4
and 6.5 on or before such Settlement Date and the Borrower
irrevocably consents to the giving of such instructions or
advice, as the case may be, and the making of such withdrawals,
deposits and payments.
(b) On each Settlement Date (or in the case of payments to the
counterparties under the Hedging Arrangements pursuant to clause
(i) below, if any, on the Business Day preceding such Settlement
Date), all Available Funds for such date shall be applied,
without duplication, by the Servicer or the Collateral Agent,
respectively, as follows and in the following priority:
(i) to pay any amounts due to any counterparty under any
Hedging Arrangement on or for such Settlement Date
(exclusive of payments due to such counterparty in
connection with any Early Termination Date under (and as
defined in) the Hedging Arrangements);
(ii) to pay the Administrator and the Trustee, as applicable,
pro rata, to pay the Administration Fee and the Trust
Expenses (to the extent that such Trust Expenses do not
exceed $50,000 per annum) for such Settlement Date and any
previous Settlement Dates to the extent not previously
paid;
(iii) to pay the Servicer, the Servicing Fee, if any, for the
immediately preceding Settlement Period and any previous
Settlement Dates to the extent not previously paid;
(iv) to pay to (A) the Collateral Agent, for the account of the
Lender, an amount equal to all accrued and unpaid Loan
Note Funding Costs for such Settlement Date and any
previous Settlement Dates to the extent not previously
paid and any amounts due in respect of the non-utilization
fee referred to in paragraph 2 of the Fee Letter and (B)
the counterparties under the Hedging Arrangements any
amounts due under any Hedging
-19-
Arrangements on or for such Settlement Date (and any previous
Settlement Dates to the extent not previously paid) in respect of
or in connection with any Early Termination Date under (and as
defined in) the Hedging Arrangements, pro rata, based on the
proportion that each amount owing under (A) and (B) above, as
applicable, bears to the sum of the amounts owing under (A) and
(B) above;
(v) to pay the Collateral Agent, for the account of the Lenders, an
amount equal to the lesser of (A) the Targeted Monthly Principal
Payment for such Settlement Date and (B) the Net Loan Investment
for such Settlement Date;
(vi) if such Settlement Date is prior to the occurrence of a
Termination Event, to pay or deposit to the Cash Reserve Account
an amount equal to the positive difference, if any, between (A)
the Cash Reserve Account Required Amount for such Settlement Date
and (B) the amount on deposit in the Cash Reserve Account on such
date;
(vii) to pay the Collateral Agent, for the account of the Lender, an
amount equal to the Targeted Additional Monthly Principal Payment
for such Settlement Date;
(viii) to pay the Collateral Agent, for the account of the Persons
entitled thereto, an amount equal to all other Aggregate Unpaids
for such date described in clauses (iii) and (v) of the
definition thereof payable to the Lender or the Collateral Agent
and not paid from distributions made under clauses (b)(ii) to
(v), both inclusive, above;
(ix) an amount equal to all other Aggregate Unpaids for such date
described in clause (i) of the definition thereof;
(x) to pay the Seller (or any transferee or assign pursuant to
Section 4.9 of the Master Receivables Purchase Agreement) the
accrued and unpaid interest (including interest on overdue
interest) on the Seller Loan Note Balance for such Settlement
Date and any previous Settlement Dates to the extent not
previously paid;
(xi) to pay the Trustee, the Trust Expenses, to the extent not paid
under clause (b)(ii) for such Settlement Date and any previous
Settlement Dates to the extent not previously paid;
(xii) to retain for the Borrower, the sum of $100 for distribution to
the beneficiaries of the Borrower;
(xiii) to pay the Seller (or any transferee or assign pursuant to
Section 4.9 of the Master Receivables Purchase Agreement), in
repayment of the outstanding Seller Loan Note Balance, an amount
equal to the lesser of:
-20-
(A) the Targeted Seller Loan Principal Payment for such
Settlement Date, and
(B) the outstanding Seller Loan Note Balance; and
(xiv) the balance, if any, after application of clauses (i) through
(xiii) above, shall be paid to the Seller (or any transferee or
assignee pursuant to Section 4.9 of the Master Receivables
Purchase Agreement) as part of the Monthly Residual Purchase
Price Amount.
(c) On each Settlement Date the Servicer shall pay, or shall instruct the
Collateral Agent to pay, to the Seller (or any transferee or assign
pursuant to Section 4.9 of the Master Receivables Purchase Agreement)
the Monthly Residual Purchase Price Amount for such date from the
Monthly Collections for such date after all amounts under Section
6.4(b) above due to the Lender or Collateral Agent on such date are
paid. Notwithstanding the foregoing, if there is a Subordinated Loan
for any Settlement Date under Section 1.6(c) or (e) of the Master
Receivables Purchase Agreement, the portion of the Monthly Residual
Purchase Price Amount, if any, otherwise payable to the Seller under
this Section 6.4(c) and which is set off and netted in accordance with
the Master Receivables Purchase Agreement against the obligation of the
Seller to make such Subordinated Loans on such date, shall be included
in the Monthly Net Collections and the Available Funds for such
Settlement Date and applied to satisfy the payments to be made pursuant
to clauses (b)(ii) to (b)(xiii), both inclusive, of this Section
6.4(c).
6.5 Cash Reserve Account
(a) The Seller hereby directs the Borrower to, and the Borrower shall,
retain in or deposit into the Cash Reserve Account, all Subordinated
Loans made by the Seller to the Borrower pursuant to Section 1.6(b) and
(c) of the Master Receivables Purchase Agreement.
(b) If the Available Funds for any Settlement Date (other than the amounts
on deposit in the Cash Reserve Account) are or will be insufficient to
provide for the payment in full of the amounts described in Section
6.4(b)(i) through (viii) hereof, the Collateral Agent shall make a
withdrawal from the Cash Reserve Account in the amount of such
deficiency and the proceeds from such withdrawal shall be deposited
into the Collection Account and applied by the Servicer or the
Collateral Agent to Available Funds to make the distributions and
payments required by Section 6.4(b)(i) through (viii), as applicable;
provided, however that on the first Settlement Date on or after the
occurrence of a Termination Event the Collateral Agent shall transfer
all amounts then on deposit in the Cash Reserve Account to the
Collection Account for application in accordance with Section 6.4(b)
and thereafter no further amounts shall be deposited to the Cash
Reserve Account.
(c) If on any Settlement Date prior to the occurrence of a Termination
Event or a Potential Termination Event, the amount on deposit in the
Cash Reserve Account exceeds the Cash Reserve Account Required Amount
for such Settlement Date
-21-
(after giving effect to all deposits to and withdrawals from the
Cash Reserve Account on such Settlement Date otherwise than
pursuant to this Section 6.5(c)), the Collateral Agent shall
distribute the amount of the excess to the Seller in payment of
the outstanding Seller Loan Note Balance.
(d) If on any Optional Repurchase Date, the amount on deposit in the
Cash Reserve Account (calculated as of the Optional Repurchase
Date and after giving effect to the Optional Repurchase and
Section 6.4(b) above (if applicable on such date)) exceeds the
Cash Reserve Account Required Amount, the Servicer shall (x) if
no Termination Event or a Potential Termination Event shall have
occurred, release to the Seller as an adjustment to the Purchase
Price an amount equal to the excess of the amount on deposit in
the Cash Reserve Account over the Cash Reserve Account Required
Amount and (y) if a Termination Event or a Potential Termination
Event shall have occurred, retain the amount on deposit in the
Cash Reserve Account for application as part of Available Funds
pursuant to Section 6.5 hereof on the next succeeding Settlement
Date.
6.6 Proceeds of Realization.
(a) If the Collateral Agent collects any money or property pursuant
to Article 2 hereof with respect to the Collateral upon any sale
or other disposition of the Collateral pursuant to this
Agreement, it shall pay out the money or property in the
following order:
(i) first: to the Collateral Agent for unpaid fees expenses
and other amounts due to the Collateral Agent in
connection with such sale or disposition and then to the
Trustee for unpaid fees, expenses and other amounts due to
the Trustee (not including amounts due for payments to the
beneficiaries of the Trust) in connection with such sale
or disposition under the Trust Declaration or the Master
Receivables Purchase Agreement; and
(ii) second: to the Collection Account, for distribution
pursuant to the terms and provisions of Section 6.4,
Section 6.5 and this Section 6.6.
(b) Upon any Termination Event, the Servicer shall, or shall instruct
the Collateral Agent to, distribute or pay the proceeds of such
disposition (the "Event of Default Proceeds") deposited into the
Collection Account under Section 6.6(a)(ii) on the Settlement
Date on which the Event of Default Proceeds are deposited in the
Collection Account (or, if such proceeds are not so deposited on
a Settlement Date, on the Settlement Date immediately following
such deposit), to make the payments or deposits specified in
Sections 6.4 and 6.5 of this Agreement (after the application on
such Settlement Date of the Available Funds, funds on deposit in
the Cash Reserve Account) from the Event of Default Proceeds and
any funds remaining on deposit in the Cash Reserve Account.
6.7 Release
(a) The Collateral Agent shall be deemed to have (i) released from
the security interest granted herein to the Collateral Agent any
Repurchased Receivables and
-22-
Related Assets and any other Receivables and the Related Security
and Collections repurchased by the Seller or purchased by the
Servicer in accordance with the Master Receivables Purchase
Agreement or the Servicing Agreement, as applicable, in each
case, immediately upon satisfaction of the related Purchase Price
in accordance with the terms of Section 1.7 or Section 1.10 of
the Master Receivables Purchase Agreement, including, where
applicable, the deposit to the Collection Account of the Optional
Repurchase Price or Outstanding Balance of such Repurchased
Receivables and Related Assets or other Receivables and (ii)
reassigned to the Seller or assigned to the Servicer all of the
Collateral Agent's rights under the Master Receivables Purchase
Agreement or the Servicing Agreement, as applicable, with respect
to such Receivable.
(b) Notwithstanding the foregoing, the Collateral Agent shall execute
and deliver to the Seller, at the Seller's request and expense,
such documents or instruments as are necessary to sell, transfer
and assign and/or release to the Seller all right title and
interest of each of the Borrower, the Collateral Agent and the
Secured Parties in the Repurchased Receivables and Related Assets
and proceeds thereof.
(c) Amounts properly distributed to the Seller (or any transferee or
assign pursuant to Section 4.9 of the Master Receivables Purchase
Agreement) pursuant to Section 6.4 shall be deemed released from
the security interest granted herein to the Collateral Agent, and
the Seller (and such transferees and assignees) or the Borrower
shall in no event thereafter be required to refund any such
distributed amounts.
6.8 Assignment by Seller
The Seller may at any time, with the consent of the Borrower and the Lender or
Collateral Agent which consent shall not be unreasonably withheld or delayed,
sell, transfer, convey or assign in any manner its rights to and interests in
the Seller Loan Note, the principal of, and interest accrued or accruing on, and
any other amounts in respect of, the Seller Loan Note Balance or any other
distributions from the Cash Reserve Account, including interest and other
investment earnings thereon.
6.9 Borrowing Base Adjustment Loans
The proceeds of all Borrowing Base Adjustment Loans made by the Seller to the
Borrower and deposited to the Collection Account pursuant to the Master
Receivables Purchase Agreement shall be applied by the Servicer on behalf of the
Collateral Agent or by the Collateral Agent, as applicable to repay or reduce
the Net Loan Investment on the date such Borrowing Base Adjustment Loans are
made by the Seller and deposited to the Collection Account.
ARTICLE 7
THE COLLATERAL AGENT
7.1 Duties of the Collateral Agent
The Lender hereby appoints Congress Financial Corporation (Canada) to act solely
on its behalf as Collateral Agent hereunder and under the other Transaction
Documents, and Congress
-23-
Financial Corporation (Canada) hereby accepts such appointment. The Collateral
Agent, both prior to the occurrence of a Termination Event hereunder and after a
Termination Event shall have been cured or waived, shall undertake to perform
such duties and only such duties as are specifically set forth in this Agreement
and the other Transaction Documents to which it is a party. The Collateral Agent
shall at all times after the occurrence of a Termination Event which has not
been cured or waived exercise such of the rights and powers vested in it
pursuant to this Agreement using the same degree of care and skill as a prudent
person would exercise or use in the conduct of his or her own affairs.
All Collections received by the Collateral Agent will, pending remittance to the
Lender and the other parties entitled thereto, be held in trust by the
Collateral Agent for the benefit of such parties and together with all other
payment obligations of the Borrower hereunder shall be payable in accordance
with the provisions of Article 6 hereof.
7.2 Indemnification of Collateral Agent
Each of the Borrower and AmeriCredit Canada shall indemnify the Collateral
Agent, its officers, directors, employees and agents as set out in Section 4.1
of the Loan Agreement. This obligation shall survive termination of this
Agreement.
7.3 Liability of the Collateral Agent
(a) The Collateral Agent shall be liable in accordance herewith only
to the extent of the obligations specifically undertaken by the
Collateral Agent in such capacity herein. No implied covenants or
obligations shall be read into this Agreement or any other
Transaction Documents against the Collateral Agent and, in the
absence of bad faith on the part of the Collateral Agent, the
Collateral Agent may conclusively rely on the truth of the
statements and the correctness of the opinions expressed in any
certificates or opinions furnished to the Collateral Agent and
conforming to the requirements of this Agreement or any other
Transaction Document.
(b) The Collateral Agent shall not be liable for an error of
judgment made in good faith by an authorized officer, unless
it shall be conclusively proved in a judicial proceeding that
the Collateral Agent shall have been grossly negligent in
ascertaining the pertinent facts of which the Collateral Agent
is required by the terms of this Agreement or any other
Transaction Documents to make itself aware.
(c) The Collateral Agent shall not be liable with respect to any
action taken, suffered or omitted to be taken in good faith in
accordance with this Agreement or any other Transaction
Document or at the direction of a Secured Party relating to
the exercise of any power conferred upon the Collateral Agent
under this Agreement or any other Transaction Document.
(d) The Collateral Agent shall not be charged with knowledge of any
Termination Event unless an authorized officer obtains actual
knowledge of such event or the Collateral Agent receives written
notice of such event from the Borrower or the Lender, as the case
may be.
-24-
(e) Without limiting the generality of this Section 7.3, the
Collateral Agent shall have no duty (i) to see to any recording,
filing or depositing of this Agreement or any other Transaction
Document or any financing statement or continuation statement
evidencing a security interest in the Receivables or the Financed
Vehicles, or to see to the maintenance of any such recording or
filing or depositing or to any recording, refiling or
redepositing of any thereof, (ii) to see to any insurance of the
Financed Vehicles or Obligors or to effect or maintain any such
insurance, (iii) to see to the payment or discharge of any tax,
assessment or other governmental charge or any Lien or
encumbrance of any kind owing with respect to, assessed or levied
against, any part of the Receivables, (iv) to confirm or verify
the contents of any reports or certificates of the Borrower
delivered to the Collateral Agent pursuant to this Agreement or
any other Transaction Document believed by the Collateral Agent
to be genuine and to have been signed or presented by the proper
party or parties or (v) to inspect the Financed Vehicles at any
time or ascertain or inquire as to the performance or observance
of any of the Borrower's representations, warranties or
covenants.
(f) The Collateral Agent shall not be required to expend or risk its
own funds or otherwise incur financial liability in the
performance of any of its duties hereunder, or in the exercise of
any of its rights or powers, if there shall be reasonable ground
for believing that the repayment of such funds or adequate
indemnity against such risk or liability shall not be reasonably
assured to it, and none of the provisions contained in this
Agreement shall in any event require the Collateral Agent to
perform, or be responsible for the manner of performance of, any
of the obligations of the Borrower under this Agreement.
(g) The Collateral Agent may rely and shall be protected in acting or
refraining from acting upon any resolution, officer's certificate,
any Servicer's Certificate, certificate of auditors, or any other
certificate, statement, instrument, opinion, report, notice,
request, consent, order, appraisal, bond or other paper or
document reasonably believed by it to be genuine and to have been
signed or presented by the proper party or parties.
(h) The Collateral Agent may consult with counsel and any opinion of
such counsel shall be full and complete authorization and
protection in respect of any action taken or suffered or omitted
by it under this Agreement or any other Transaction Document in
good faith and in accordance with such opinion of counsel.
(i) The Collateral Agent shall not be liable for any action taken,
suffered or omitted by it in good faith and believed by it to be
authorized or within the discretion or rights or powers conferred
upon it by this Agreement or any other Transaction Document;
nothing contained in this Agreement, however, shall relieve the
Collateral Agent of its obligations, upon the occurrence of a
Termination Event (that shall not have been cured or waived), to
exercise such of the rights and powers vested in it by this
Agreement, and to use the same degree of care and skill in their
exercise as a prudent person would exercise or use under the
circumstances in the conduct of his or her own affairs.
-25-
(j) The Collateral Agent shall not be bound to make any investigation
into the facts of matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, consent,
order, approval, bond or other paper or document, unless requested
in writing so to do by the Lender; provided, however, that if the
payment within a reasonable time to the Collateral Agent of the
costs, expenses or liabilities likely to be incurred by it in the
making of such investigation shall be, in the opinion of the
Collateral Agent, not reasonably assured by the Borrower, the
Collateral Agent may require reasonable indemnity against such
cost, expense or liability as a condition to so proceeding. The
reasonable expense of every such examination shall be paid by the
Borrower or, if paid by the Collateral Agent, shall be reimbursed
by the Borrower upon demand.
(k) The Collateral Agent may execute any of the trusts or powers
hereunder or perform any duties under this Agreement either
directly or by or through the Lender or attorneys or a custodian.
The Collateral Agent shall not be responsible for any misconduct
or negligence of any such agent or custodian appointed with due
care by it hereunder.
ARTICLE 8
MISCELLANEOUS
8.1 Waivers; Amendments
(a) No failure or delay on the part of the Collateral Agent or the
Lender in exercising any power, right or remedy under this
Agreement shall operate as a waiver thereof, nor shall any single
or partial exercise of any such power, right or remedy preclude
any other further exercise thereof or the exercise of any other
power, right or remedy. The rights and remedies herein provided
shall be cumulative and nonexclusive of any rights or remedies
provided by law.
(b) The following steps may only be taken by or with the written
consent of the Collateral Agent and the Lender:
(i) an amendment to, or waiver under, this Agreement or any
other Transaction Document;
(ii) the waiver of any Termination Event or Servicer Termination
Event;
(iii) after the occurrence of a Termination Event, declaring the
Facility Termination Date to have occurred; and
(iv) replacing AmeriCredit Canada as Servicer and AmeriCredit US
as the Custodian after the occurrence of a Servicer
Termination Event.
8.2 Notices
Except as provided below, all communications, reports and notices provided for
hereunder shall be in writing (including telecopy or electronic facsimile
transmission or similar writing) and shall be given to the other party at its
address or telecopy number set forth below or at such other
-26-
address or telecopy number as such party may hereafter specify for the purposes
of notice to such party. Each such notice or other communication shall be
effective (i) if given by telecopy, when such telecopy is transmitted to the
telecopy number specified in this Section 8.2 and confirmation is received, (ii)
if given by mail, three (3) Business Days following such posting, if postage
prepaid, or if sent via U.S. certified or registered mail, (iii) if given by
overnight courier, one (1) Business Day after deposit thereof with a national
overnight courier service, or (iv) if given by any other means, when received at
the address specified in this Section 8.2.
If to the Lender or the Collateral Agent:
Congress Financial Corporation (Canada)
141 Adelaide Street West
Suite 1500
Toronto, Ontario
M5H 3L9
Attention: Enza Augusta
Telephone: (416) 364-6401
Telecopy: (416) 364-8165
with a copy to:
Wachovia Securities
Asset-Backed Finance - Investment Management
301 S. College St.
Charlotte, NC 28288-0610
Attention: Tim MacPhail
Telephone: (704) 383-5127
Facsimile: (704) 383-6162
If to the Borrower:
AmeriCredit Canada Funding Trust I
c/o AmeriCredit Financial Services of Canada Ltd, as Administrator
1 Robert Speck Parkway, Suite 1420
Mississauga, Ontario L4Z 3M3
Attention: Treasurer
Telephone: (905) 804-8258
Telecopy: (905) 804-8095
-27-
with a copy to:
CIBC Mellon Trust Company, as Trustee
320 Bay Street
P.O. Box 1
Toronto, Ontario
M5H 4A6
Attention: Manager, Corporate Trust Services
Telecopy: (416) 643-5570
Payment Information:
[BANK]
ABA _________
Account __________
Reference __________
with a copy to:
AmeriCredit Financial Services of Canada Ltd.
801 Cherry Street
Suite 3900
Fort Worth, Texas 76102
Attention: Treasurer
Telephone: (817) 302-7022
Telecopy: (817) 302-7942
If to AmeriCredit Canada:
AmeriCredit Financial Services of Canada Ltd.
1 Robert Speck Parkway
Suite 1420
Mississauga, Ontario
L4Z 3M3
Attention: Treasurer
Telephone: (905) 804-8258
Telecopy: (905) 804-8095
with a copy to:
AmeriCredit Financial Services of Canada Ltd.
-28-
801 Cherry Street
Suite 3900
Fort Worth, Texas 76102
Attention: Treasurer
Telephone: (817) 302-7022
Telecopy: (817) 302-7942
8.3 Governing Law; Submission to Jurisdiction
(a) This Agreement shall be governed by, and construed in accordance
with, the law of the Province of Ontario (without giving effect to
the conflict of laws principles thereof).
(b) Any legal action or proceeding with respect to this agreement may
be brought in the courts of the Province of Ontario and by
execution and delivery of this Agreement, each of the Borrower,
the Collateral Agent, the Lender, the Seller, the Servicer and the
Administrator consents, for itself and in respect of its property,
to the non-exclusive jurisdiction of those courts. Each of the
Borrower, the Lender, the Seller, the Servicer and the
Administrator irrevocably waives, to the maximum extent permitted
by law, any objection, including any objection to the laying of
venue or based on the grounds of forum non convenience, which it
may now or hereafter have to the bringing of any action or
proceeding in such jurisdiction in respect of this Agreement or
any document related hereto. The Borrower, the Collateral Agent,
the Lender, the Seller, the Servicer and the Administrator each
waive personal service of any claim, notice of motion or
application, summons, complaint or other process, which may be
made by any other means permitted by Ontario law.
8.4 Counterparts
This Agreement may be executed in any number of counterparts and by different
parties hereto in separate counterparts, each of which when so executed shall be
deemed to be an original and all of which when taken together shall constitute
one and the same Agreement.
8.5 Successors and Assigns
(a) This Agreement shall be binding on, and inure to the benefit of
the Borrower and AmeriCredit Canada, and their respective
successors and assigns; provided, however, that neither
AmeriCredit Canada, nor the Borrower may assign any of its rights
or delegate any of its duties hereunder or under the Master
Receivables Purchase Agreement or under any of the other
Transaction Documents to which it is a party without the prior
written consent of the Lender.
(b) Neither the Collateral Agent nor the Lender may assign its rights
and obligations under or in this Agreement or the other
Transaction Documents to any Person other than an Eligible
Institution without the prior written consent of the
-29-
Borrower, the Seller, the Servicer and AmeriCredit Canada,
provided, however that after the occurrence of a Termination
Event, the assignee may be any Person and no such consent shall be
required.
(c) The Lender may at any time grant to one or more Persons which
shall be Eligible Institutions (each a "Participant")
participating interests in this Agreement; provided however that
participations may be granted to any Person after the occurrence
of a Termination Event. In the event of any such grant by the
Lender of a participating interest to a Participant, the Lender
shall remain responsible for the performance of its obligations
hereunder and neither the Borrower nor AmeriCredit Canada shall
have any obligation to deal with any Participant hereunder. The
Borrower and AmeriCredit Canada each agree that each Participant
shall be entitled to the benefits of all representations,
warranties, covenants, agreements and indemnities of the Borrower
or AmeriCredit Canada made or contained in this Agreement, all of
which may be enforced by the Lender for the benefit of itself and
such participants.
8.6 Confidentiality Agreement
(a) Each of the Borrower and AmeriCredit Canada hereby agrees that it
will not disclose the contents of this Agreement or any other
proprietary or confidential information of the Lender or the
Collateral Agent to any other Person except (i) its auditors and
attorneys, employees or financial advisors (other than any
commercial bank which is not an Affiliate of the Lender) and any
nationally recognized rating agency, provided such auditors,
attorneys, employees, financial advisors or rating agencies are
informed of the highly confidential nature of such information or
(ii) as otherwise required (x) by applicable law, (y) under any
applicable securities legislation, in connection with an offering
of securities issued by the Borrower or an Affiliate thereof, or
(z) by order of a court of competent jurisdiction.
(b) Each of the Lender and Collateral Agent hereby agrees that it will
not disclose the contents of this Agreement or any other
proprietary or confidential information of the Borrower or
AmeriCredit to any other Person except (i) its auditors and
attorneys, employees or financial advisors (other than any
commercial bank which is not an Affiliate of the Lender) and any
nationally recognized rating agency, provided such auditors,
attorneys, employees, financial advisors or rating agencies are
informed of the highly confidential nature of such information or
(ii) as otherwise required (x) by applicable law or (y) by order
of a court of competent jurisdiction.
8.7 Further Assurances
Each of the Borrower and AmeriCredit Canada agrees to do such further acts and
things and to execute and deliver to the Lender or the Collateral Agent such
additional assignments, agreements, powers and instruments as are required by
the Lender to carry into effect the purposes of this Agreement, the Loan
Agreement, the Loan Note or the other Transaction Documents or to better assure
and confirm unto the Lender or the Collateral Agent its rights, powers and
remedies hereunder or thereunder.
-30-
8.8 Headings
Section headings used in this Agreement are for convenience of reference only
and shall not affect the construction or interpretation of this Agreement.
8.9 Limitation of Liability
It is expressly understood and agreed by the parties hereto that this Agreement
will be conclusively deemed to have been executed by the Trustee only in its
capacity as trustee of the Borrower and that (i) any and all of the
representations, warranties, undertakings, covenants, indemnities, agreements
and other obligations made on the part of the Trustee herein are made and
intended not as personal representations, warranties, undertakings, covenants,
indemnities, agreements and other obligations by the Trustee or for the purpose
or with the intention of binding the Trustee in its personal capacity, but are
made and intended for the purpose of binding only the property and assets of the
Borrower or a specific portion thereof; (ii) no property or assets of the
Trustee, whether owned beneficially by it in its personal capacity or otherwise
(other than the Trust Fund, as such term is defined in the Trust Declaration),
will be subject to levy, execution or other enforcement procedures with regard
to any of the representations, warranties, undertakings, covenants, indemnities,
agreements and other obligations of the Borrower or the Trustee hereunder; and
(iii) no recourse may be had or taken, directly or indirectly against the
Trustee in its personal capacity, any beneficiary of the Borrower or any
incorporator, Affiliate, shareholder, director, officer, representative,
employee or agent of the Trustee or any predecessor or successor of the Trustee
with regard to the representations, warranties, undertakings, covenants,
indemnities, agreements and other obligations of the Borrower or the Trustee
hereunder.
-31-
IN WITNESS OF WHICH, the parties hereto have caused this Security
Agreement to be executed by their respective officers thereunto duly authorized
as of the day and year first above written.
AMERICREDIT CANADA FUNDING TRUST I,
by its Trustee, CIBC MELLON TRUST COMPANY,
by AMERICREDIT FINANCIAL SERVICES OF
CANADA LTD. as Administrator
By:____________________________________
Name:
Title:
By:____________________________________
Name:
Title:
AMERICREDIT FINANCIAL SERVICES OF CANADA
LTD., as Seller and initial Servicer
By:____________________________________
Name:
Title:
By:____________________________________
Name:
Title:
CONGRESS FINANCIAL CORPORATION (CANADA),in
its capacity as Lender and as Collateral
Agent
By:______________________________________
Name:
Title:
By:______________________________________
Name:
Title: