Exhibit 10.76
EXECUTION COPY
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REVOLVER SECURITY AND COLLATERAL AGENT AGREEMENT
among
DEUTSCHE BANK TRUST COMPANY AMERICAS,
as Administrative Agent and
as Lender Collateral Agent
AMERICREDIT FINANCIAL SERVICES, INC.,
and
AFS FUNDING CORP.,
and
AFS SENSUB CORP.
as Borrowers
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Dated as of August 15, 2002
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REVOLVER SECURITY AND COLLATERAL AGENT AGREEMENT
REVOLVER SECURITY AND COLLATERAL AGENT AGREEMENT dated as of August 15,
2002 among DEUTSCHE BANK TRUST COMPANY AMERICAS, as administrative agent for the
Lenders (in such capacity, the "Administrative Agent") and as the lender
collateral agent for the Lenders (in such capacity, the "Lender Collateral
Agent"), AFS FUNDING CORP., a Nevada corporation and AFS SENSUB CORP., a Nevada
corporation (together with AFS Funding Corp., each a "Borrower" and
collectively, the "Borrowers"), and AMERICREDIT FINANCIAL SERVICES, INC., a
Delaware corporation ("ACFS").
W I T N E S S E T H :
WHEREAS, the Borrowers have sold and contemplate selling, from time to
time, pools of receivables to various trusts which have issued or may issue
various series of notes or certificates (each a "Series") which will be repaid
from the proceeds of, or represent an interest in, such pools of receivables;
WHEREAS, the Borrowers have requested that the Lenders establish a
revolving line of credit to the Borrowers, which line of credit will be secured
by certain securities rated at least Ba2 by Moody's and BB by S&P of various
Series, guarantees in respect of such securities and certain amounts payable to
the Borrowers with respect to other Series;
WHEREAS, upon the terms and conditions contained in the Credit
Agreement (as hereinafter defined) and the other Transaction Agreements, the
Lenders are willing to provide such a line of credit to the Borrowers; and
WHEREAS, ACFS will service each Series.
NOW, THEREFORE, ACFS, the Borrowers, the Lender Collateral Agent and
the Administrative Agent, intending to be legally bound, hereby agree as
follows:
Section 1 Definitions. For all purposes of this Agreement, the
following terms shall have the meanings set forth below and the following terms
which are defined in the Uniform Commercial Code in effect in the State of New
York from time to time are used herein as so defined: Accounts, Documents,
Instruments and Proceeds. Capitalized terms used herein but not otherwise
defined shall have the meanings set forth in the Credit Agreement.
"Accrual Period" shall mean, with respect to any Distribution
Date, the period from and including the previous Distribution Date (or, in the
case of the first Distribution Date, from and including the Closing Date)
through and including the day preceding such Distribution Date.
"ACFS" has the meaning specified in the Preamble.
"Adverse Claim" has the meaning set forth in Section 8-102(a)(1)
of Article 8.
"Administrative Agent" has the meaning specified in the Preamble.
"Agreement" means this Revolver Security and Collateral Agent
Agreement, as it may be amended, supplemented or otherwise modified from time to
time.
"Article 8" means UCC, Revised Article 8, Investment Securities
(with conforming and miscellaneous amendments to Articles 1, 3, 4, 5, 9 and 10),
1994 Official Text, as adopted by the American Law Institute and the National
Conference of Commissioners on Uniform State Laws. Unless the context requires
otherwise, "Article 8" means such version in the form in which it is adopted in
the applicable jurisdiction.
"Available Funds" has the meaning specified in Section 6.
"Borrower" or "Borrowers" has the meaning specified in the
Preamble.
"Borrower Agreements" has the meaning set forth in Section 4.
"Capped Expenses" means, at any time, with respect to each of the
Lender Collateral Agent and the Administrative Agent, fees, costs and expenses
due at such time (if any) to the Lender Collateral Agent or the Administrative
Agent under the Transaction Documents not in excess of $7,500 with respect to
any Distribution Date.
"Certificated Security" has the meaning set forth in Section
8-102(a)(4) of Article 8.
"Clearing Corporation" has the meaning set forth in Section
8-102(a)(5) of Article 8.
"Clearing Corporation Security" means a "Security" (as defined in
Section 8-102(a)(15) of Article 8) that is in the physical possession of, or
registered in the name of, a Clearing Corporation or its nominee.
"Collateral Account" has the meaning set forth in Section 7.
"Control": with respect to any Federal Book Entry Security, the
Lender Collateral Agent shall have obtained control if:
(i) the Lender Collateral Agent is a participant in the book entry
system maintained by the Federal Reserve Bank that is acting as fiscal
agent for the issuer of such Federal Book Entry Security, and such
Federal Reserve Bank has indicated by book entry that such Federal Book
Entry Security has been credited to the Lender Collateral Agent's
securities account in such book entry system; or
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(ii) the Lender Collateral Agent is registered solely in its name
on the records of a Securities Intermediary as the person having a
Security Entitlement in respect of such Federal Book Entry Security
against such Securities Intermediary; and (b) the Securities Intermediary
is a participant in the book entry system maintained by the Federal
Reserve Bank that is acting as fiscal agent for the issuer of such
Federal Book Entry Security; and (c) such Federal Reserve Bank has
indicated by book entry that such Federal Book Entry Security has been
credited to the Securities Intermediary's securities account in such book
entry system.
"Credit Agreement" means the Credit Agreement, dated as of the
date hereof, among the Borrowers, the Contingent Obligors, each Lender party
thereto, each Agent party thereto, the Lender Collateral Agent and the
Administrative Agent, as amended, extended or otherwise modified from time to
time.
"Delivery": when used with respect to Revolver Account Collateral,
"Delivery" means:
(i) with respect to Physical Property, transfer thereof to the
Lender Collateral Agent or its nominee or custodian by physical delivery
to the Lender Collateral Agent or its nominee or custodian endorsed to,
or registered in the name of, the Lender Collateral Agent or its nominee
or custodian or endorsed in blank;
(ii) with respect to a Certificated Security, transfer of such
Certificated Security to the Lender Collateral Agent or its nominee or
custodian by physical delivery to the Lender Collateral Agent or its
nominee or custodian, endorsed to, or registered in the name of, the
Lender Collateral Agent or its nominee or custodian or endorsed in blank;
and
(iii) with respect to any such Revolver Account Collateral that
constitutes an Uncertificated Security (including any investments in
money market mutual funds, but excluding any Federal Book Entry
Security), (A) registration of the Lender Collateral Agent as the
registered owner by the issuer, or (B) satisfaction of the requirements
for obtaining "control" pursuant to Section 8-106(c)(2) of Article 8.
"Eligible Account" means (i) a segregated trust account maintained
with the Lender Collateral Agent or (ii) a segregated trust account maintained
with a depository institution or trust company organized under the laws of the
United States of America, or any of the States thereof, or the District of
Columbia, having a certificate of deposit, short term deposit or commercial
paper rating of at least A-1 by Standard & Poor's and P-1 by Moody's. Except in
the event of a transfer pursuant to Section 7(a), such depository institution or
trust company shall have been approved by written notice from ACFS.
"Entitlement Order" has the meaning set forth in Section
8-102(a)(8) of Article 8.
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"Federal Book Entry Security" means an obligation (i) issued by
the U.S. Treasury, the Federal Home Loan Mortgage Corporation or the Federal
National Mortgage Association, or any other direct obligation of, or obligation
fully guaranteed as to timely payment or principal and interest by, the United
States of America, that is a book-entry security held through the Federal
Reserve System pursuant to Federal book entry regulations, and (ii) the
perfection of a security interest in which is governed pursuant to federal
regulations by Article 8.
"Financial Asset" has the meaning set forth in Section 8-102(a)(9)
of Article 8.
"Increased Costs" means collectively, any increased cost, loss or
liability owing to the Administrative Agent and/or any other Affected Party
under Sections 2.10, 2.11 and 2.13 of the Credit Agreement.
"Indemnity Amounts" means, collectively, all indemnity obligations
and other amounts owing to the Administrative Agent, any Lender, any Agent
and/or any other Indemnified Party under Section 8.04 of the Credit Agreement.
"Instruments" has the meaning set forth in Section 9-105(l)(i) of
Article 8.
"Interest Reserve Account" has the meaning set forth in Section 7.
"Investment Property" has the meaning set forth in Section
9-115(1)(f) of Article 8.
"Lender Collateral Agent" has the meaning specified in the
Preamble.
"Obligations" means all obligations (monetary or otherwise) of the
Borrowers to the Lenders, the Agents, the Lender Collateral Agent, the
Administrative Agent or any Affected Party arising under or in connection with
this Agreement, the Credit Agreement and each other Transaction Document.
"Permitted Liens" means, with respect to any Person, (i) any Lien
for taxes, assessments or other governmental charges or levies not yet subject
to penalties for non-payment or the validity, applicability or amount of which
is being contested in good faith by appropriate legal proceedings and with
respect to which adequate reserves in accordance with GAAP have been established
by such Person; (ii) any Lien which is imposed by law (such as those of
mechanics, carriers and warehousemen), if payment of the obligation secured
thereby is not yet due or the validity, the applicability or amount of which is
being contested in good faith by appropriate legal proceedings and with respect
to which adequate reserves in accordance with GAAP have been established by such
Person; and (iii) judgment Liens in existence less than five days after the
entry thereof or with respect to which execution has been stayed, so long as the
aggregate amount of all such judgment Liens at any time does not exceed
$100,000, or judgment Liens the payment of which is covered in full (subject to
a customary deductible) by insurance.
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"Physical Property" means personal property constituting
Instruments, including bankers' acceptances, commercial paper, negotiable
certificates of deposit and other obligations that are susceptible of physical
delivery.
"Revolver Account Collateral" has the meaning set forth in Section
3.
"Revolver Collateral" has the meaning set forth in Section 3.
"Secured Parties" means, collectively, the Administrative Agent,
each Agent, each Lender, the Lender Collateral Agent, each Affected Party, and
their respective successors and assigns and, to the extent of monies available
pursuant to Clause SIXTH of Section 6, the "Secured Parties" under the Master
Collateral and Intercreditor Agreement, as their interests may appear.
"Securities Account" has the meaning set forth in Section 8-501(a)
of Article 8.
"Security Entitlement" has the meaning set forth in Section
8-102(a)(17) of Article 8.
"Securities Intermediary" has the meaning set forth in Section
8-102(a)(14) of Article 8.
"Series" has the meaning set forth in the recitals.
"Trust Account" has the meaning set forth in Section 7.
"UCC" means the Uniform Commercial Code as in effect in each
relevant jurisdiction.
"Uncertificated Security" has the meaning set forth in Section
8-102(a)(18) of Article 8.
Section 2 Appointment of Lender Collateral Agent. Pursuant to
Section 7.01(b) of the Credit Agreement, the Lenders have appointed Deutsche
Bank Trust Company Americas as Lender Collateral Agent, and Deutsche Bank Trust
Company Americas hereby accepts such appointment.
Section 3 Borrowers' Grant of Security Interest. As security for
the prompt payment or performance in full when due, whether at stated maturity,
by acceleration or otherwise, of all Obligations (including, without limitation,
Advances, interest and other amounts at any time owing under the Credit
Agreement) and of all amounts secured by the Master Collateral and Intercreditor
Agreement, each Borrower hereby assigns and pledges to the Lender Collateral
Agent, for the benefit of the Secured Parties, and grants to the Lender
Collateral Agent, for the benefit of the Secured Parties, a perfected security
interest in and lien upon, all of
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such Borrower's right, title and interest in and to the following, in each case
whether now or hereafter existing or in which such Borrower now has or hereafter
acquires an interest and wherever the same may be located (collectively, the
"Revolver Collateral"):
(a) each Asset Backed Security Delivered to the Lender
Collateral Agent;
(b) all of the following (the "Revolver Account Collateral"):
(1) the Collateral Account and all funds held in the
Collateral Account and all certificates and instruments, if
any, from time to time representing or evidencing the
Collateral Account or such funds,
(2) the Interest Reserve Account and all funds held
in the Interest Reserve Account and all certificates and
instruments, if any, from time to time representing or
evidencing the Interest Reserve Account or such funds,
(3) all investments from time to time of amounts in
the Collateral Account or the Interest Reserve Account, and
all certificates and instruments, if any, from time to time
representing or evidencing such investments,
(4) all Clearing Corporation Securities,
Certificated Securities, Uncertificated Securities, Federal
Book-Entry Securities, Security Entitlements, Investment
Property, notes, certificates of deposit and other
instruments from time to time delivered to or otherwise
possessed by the Lender Collateral Agent or any Secured
Party or any assignee, agent or Securities Intermediary on
behalf of the Lender Collateral Agent or any Secured Party
in substitution for or in addition to any of the then
existing Revolver Account Collateral, and
(5) all interest, dividends, cash, instruments and
other property from time to time received, receivable or
otherwise distributed in respect of or in exchange for any
and all of the then existing Revolver Account Collateral;
(c) all additional property, including, without limitation, all
rights under any Interest Rate Caps, that may from time to
time hereafter be granted and pledged by the Borrowers or
by anyone on its behalf under this Agreement, including the
deposit with the Lender Collateral Agent of additional
moneys by the Borrowers; and
(d) all Proceeds, accessions, substitutions, rents and profits
of any and all of the foregoing Revolver Collateral
(including proceeds that constitute
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property of the types described in paragraphs (a) through (c)
above) and, to the extent not otherwise included, all payments
under insurance (whether or not the Lender Collateral Agent or a
Secured Party or any assignee or agent on behalf of the Lender
Collateral Agent or a Secured Party is the loss payee thereof) or
any indemnity, warranty or guaranty payable by reason of loss,
nonpayment or damage to or otherwise with respect to any of the
foregoing Revolver Collateral.
Section 4 Borrowers Remain Liable. Notwithstanding anything in
this Agreement, (a) except to the extent of ACFS's duties under the Credit
Agreement and this Agreement, each Borrower shall remain liable under the Series
Transaction Documents to which it is a party (the "Borrower Agreements") to
perform all of its duties and obligations thereunder to the same extent as if
this Agreement had not been executed, (b) the exercise by a Secured Party or the
Lender Collateral Agent of any of its rights under this Agreement or the Credit
Agreement shall not release any Borrower or ACFS from any of their respective
duties or obligations under the Borrower Agreements to which it is a party or
other agreements included in the Revolver Collateral, (c) the Administrative
Agent, the Secured Parties and the Lender Collateral Agent shall not have any
obligation or liability under the Borrower Agreements or other agreements
included in the Revolver Collateral by reason of this Agreement or the Credit
Agreement, and (d) neither the Administrative Agent, the Lender Collateral Agent
nor any of the Secured Parties shall be obligated to perform any of the
obligations or duties of the Borrowers or ACFS under the Borrower Agreements or
other agreements included in the Revolver Collateral or to take any action to
collect or enforce any claim for payment assigned under this Agreement.
Section 5 Covenants of ACFS Regarding the Collateral.
(a) Offices and Records. Each of ACFS and the Borrowers will permit,
at the expense of ACFS, representatives of the Administrative Agent, the Agents
and the Lender Collateral Agent at any time and from time to time during normal
business hours (i) to inspect and make copies of and abstracts from its records
regarding the Revolver Collateral and Designated Term Series, and (ii) to visit
the properties of the Borrowers or ACFS utilized in connection with the
servicing of the Designated Series for the purpose of examining such records,
and to discuss matters relating to the Designated Series or the Borrowers' or
ACFS' performance under this Agreement and the other Transaction Documents with
any officer or employee of the Borrowers or ACFS having knowledge of such
matters, provided that the Person seeking such information has given the
Borrowers or ACFS prior written notice of its intent to inspect or visit and
provided, further that no such Person shall so inspect or visit the Borrowers or
ACFS more frequently than once per quarter unless a Default or Event of Default
has occurred and is continuing or ACFS otherwise consents to such additional
inspection or visit. If a Default or Event of Default has occurred and is
continuing, such inspection or visit shall be at the expense of the Borrowers.
Each of ACFS and the Borrowers agree to render to the Administrative Agent and
the Lender Collateral Agent such clerical and other assistance as may be
reasonably requested with regard to the foregoing. Each of the Borrowers agrees
not to
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change its name, identity or corporate structure to such an extent that any
financing statement filed by the Lender Collateral Agent in connection with this
Agreement would become seriously misleading or change the jurisdiction in which
it is organized, unless it shall have given the Lender Collateral Agent and the
Administrative Agent at least 30 days' prior written notice of such change.
(b) Performance of Borrower Agreements. Each Borrower will (i) perform
and observe all the terms and provisions of the Borrower Agreements to be
performed or observed by it, maintain the Borrower Agreements to which it is a
party in full force and effect, enforce such Borrower Agreements in accordance
with their terms and take all such action to such end as may be from time to
time requested by the Administrative Agent and (ii) upon request of the
Administrative Agent, make to any other party to such Borrower Agreements such
demands and requests for information and reports or for action as such Borrower
is entitled to make under the Borrower Agreements.
(c) Notice of Material Adverse Claim. Each of ACFS and the Borrowers
shall advise the Administrative Agent and the Lender Collateral Agent promptly,
in writing and in reasonable detail, (i) of any Lien, other than a Permitted
Lien, known to it made or asserted against any of the Revolver Collateral, and
(ii) of the occurrence of any event which would have a Material Adverse Effect
on the value of the Revolver Collateral or on the assignments and security
interests granted by the Borrowers in this Agreement or on the priority or
perfection of such security interests or on the ability of the Lender Collateral
Agent to enforce its security interest in the Revolver Collateral or foreclose
on the Revolver Collateral.
(d) Further Assurances; Financing Statements.
(1) Each of ACFS and the Borrowers agrees that at any time
and from time to time, at its expense, it shall promptly execute
and deliver all further instruments and documents, and take all
reasonable further action, that may be necessary or desirable or
required by applicable law or that the Lender Collateral Agent or
the Administrative Agent may request to perfect and protect the
assignments and security interests granted or purported to be
granted by this Agreement or to enable the Lender Collateral Agent
or any of the Secured Parties to exercise and enforce its rights
and remedies under this Agreement with respect to any Revolver
Collateral. Without limiting the generality of the foregoing, the
Borrowers will file such financing or continuation statements, or
amendments thereto, and execute and file such other instruments or
notices as may be necessary or desirable or required by applicable
law or that the Lender Collateral Agent or the Administrative
Agent may reasonably request to protect and preserve the
assignments and security interests granted by this Agreement. On
each Borrowing Date, the Borrowers will deliver to the Lender
Collateral Agent all certificates representing Asset Backed
Securities to be
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included in the Revolver Borrowing Base on such day
together with instruments of transfer and bond powers, each
executed in blank.
(2) Upon receipt by an authorized officer of the
Lender Collateral Agent of written request from any Lender
or Agent to file one or more financing or continuation
statements, or amendments thereto, relating to all or any
part of the Revolver Collateral, the Lender Collateral
Agent will employ legal counsel on behalf of the Secured
Parties to prepare, at the expense of the Borrowers, such
financing statements, continuation statements or other
instruments required under this Section for execution by
the Lender Collateral Agent who will return such documents
to legal counsel for filing in the appropriate
jurisdictions as necessary. The Lender Collateral Agent
shall have no responsibility or obligation, at any time, to
monitor, inquire or investigate with respect to the need
for any financing statements, continuation statements or
such other instruments. The Borrowers and each Secured
Party hereby severally authorize the Lender Collateral
Agent to file one or more financing or continuation
statements, and amendments thereto, relating to all or any
part of the Revolver Collateral without the signature of
the Borrowers or the Secured Parties where permitted by law
and to cause such statements and amendments to be filed at
the expense of the Borrowers (which may include fees and
expenses for services of legal counsel). A carbon,
photographic or other reproduction of this Agreement or any
financing statement covering the Revolver Collateral or any
part thereof shall be sufficient as a financing statement
where permitted by law. The Lender Collateral Agent will
promptly send, or cause counsel to send, to the Borrowers
any financing or continuation statements thereto which it
files, or causes to be filed, without the signature of the
Borrowers and will promptly send, or cause counsel to send,
to each Secured Party and the Borrowers, as the case may
be, any financing or continuation statements thereto which
it files, or causes to be filed, without the signature of
the Secured Parties except, in the case of filings of
copies of this Agreement as financing statements, the
Lender Collateral Agent will promptly send, or cause
counsel to send, to the Borrowers and each Secured Party,
as the case may be, the filing or recordation information
with respect thereto.
(3) Each of ACFS and the Borrowers shall furnish to
the Lender Collateral Agent and the Administrative Agent
from time to time such statements and schedules further
identifying and describing the Revolver Collateral and such
other reports in connection with the Revolver Collateral as
the Administrative Agent may reasonably request, all in
reasonable detail.
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(e) Opinions as to Collateral. Not more than 90 days nor less than 30
days prior to each August 1, commencing August 1, 2003, during the term of this
Agreement the Borrowers shall, at their own cost and expense, furnish to the
Administrative Agent and the Lender Collateral Agent an opinion of counsel
either (a) stating that, in the opinion of such counsel, such action has been
taken with respect to the execution and filing of any financing statements and
continuation statements and other actions as are necessary to perfect, maintain
and protect the lien and security interest of the Lender Collateral Agent (and
the priority thereof), with respect to the Revolver Collateral against all
creditors of and purchasers from the Borrowers and reciting the details of such
action, or (b) stating that, in the opinion of such counsel, no such action is
necessary to maintain such perfected lien and security interest. Such opinion of
counsel shall further describe each execution and filing of any financing
statements and continuation statements and such other actions as will, in the
opinion of such counsel, be required to perfect, maintain and protect the lien
and security interest of the Lender Collateral Agent with respect to the
Revolver Collateral against all creditors of and purchasers from the Borrowers
for a period, specified in such opinion, continuing until a date not earlier
than eighteen months from the date of such opinion.
(f) Non-Interference. Each of the Borrowers shall not (i) waive or
alter any of its rights under the Revolver Collateral (or waive, amend or alter
any agreement or instrument relating thereto) without the prior written consent
of the Required Lenders; or (ii) fail to pay any tax, assessment, charge or fee
levied or assessed against the Revolver Collateral, or to defend any action, if
such failure to pay or defend may adversely affect the enforceability of the
Borrowers' right, title or interest in and to the Revolver Collateral or the
Lender Collateral Agent's rights in, lien on, and security interest in, the
Revolver Collateral or the perfection, priority or enforceability thereof; or
(iii) take any action, or fail to take any action, if such action or failure to
take action, will interfere with the enforcement of any rights hereunder.
Section 6 Distributions.
(a) On each Distribution Date before 2:00 p.m. (New York time), the
Lender Collateral Agent shall distribute, from the amounts on deposit in the
Collateral Account and amounts paid to the Lender Collateral Agent pursuant to
Section 6(ii), (iii) and (iv) of the Master Collateral and Intercreditor
Agreement (collectively, the "Available Funds"), in accordance with written
instructions from ACFS delivered to the Lender Collateral Agent at least one (1)
Business Day prior to such Distribution Date, the following amounts, if any, for
such Distribution Date in the following order of priority:
(i) FIRST, to the extent not previously paid by ACFS or otherwise
by or on behalf of the Borrowers to the Lender Collateral Agent and the
Administrative Agent, the Capped Expenses with respect thereto;
(ii) SECOND, to the Agents and the Lenders, the Usage Fees,
Commitment Fees and interest accrued with respect to all Borrowings
during the Accrual Period with
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respect to such Distribution Date (and any Usage Fees, Commitment Fees
and interest accrued with respect to all Borrowings with respect to any
prior Accrual Period to the extent not previously paid);
(iii) THIRD, to the Administrative Agent, for the benefit of the
Lenders, to the amount of principal of the Notes then due and payable,
including, without limitation, amounts required to be repaid to avoid
the existence of a Borrowing Base Deficiency and any Limited
Amortization Amount for such Distribution Date for any Nonextending
Lender;
(iv) FOURTH, to the extent not previously paid pursuant to clause
FIRST above, to the Lender Collateral Agent and the Administrative
Agent, pro rata, any fees, costs and expenses due to the Lender
Collateral Agent and the Administrative Agent under the Transaction
Documents;
(v) FIFTH, to the Affected Parties, any Increased Costs then due
and owing, and, to the extent not previously paid by or on behalf of
the Borrowers, to each Indemnified Party, any Indemnity Amounts then
due and owing to each such Indemnified Party; and
(vi) SIXTH, to the Master Collateral Agent, the remaining portion
of the Available Funds.
(b) If, on any Distribution Date, the Available Funds to make
distributions to be made on such Distribution Date pursuant to clauses (i)
through (v) of Section 6(a) are less than the aggregate amount required to be
distributed pursuant to such clauses of Section 6(a), ACFS shall report the
amount of such deficiency as the "Senior Facility Required Amount" with respect
to this Agreement for purposes of the Master Collateral and Intercreditor
Agreement and, if pursuant to the terms of Section 6 of the Master Collateral
and Intercreditor Agreement, the Master Collateral Agent pays any amount to the
Lender Collateral Agent in respect thereof, the Lender Collateral Agent shall
apply such amount received on such Distribution Date in the order of priority
and in the manner set forth in such clauses of Section 6(a).
Section 7 The Collateral Account; the Interest Reserve Account;
Investments.
(a) (i) On or prior to the Closing Date, the Borrowers shall establish
an account (the "Collateral Account") in the name of the Lender Collateral Agent
for the benefit of the Secured Parties. The Collateral Account shall be an
Eligible Account which is a segregated non-interest bearing trust account
initially established with the Lender Collateral Agent. ACFS and the Borrowers
shall cause all Asset Backed Security Distributions with respect to Asset Backed
Securities constituting Revolver Collateral to be deposited into the Collateral
Account as set forth in Section 5.01(u) of the Credit Agreement.
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(ii) On or prior to the Closing Date, the Borrowers shall establish an
account (the "Interest Reserve Account") in the name of the Lender Collateral
Agent for the benefit of the Secured Parties. The Interest Reserve Account shall
be an Eligible Account which is a segregated non-interest bearing trust account
initially established with the Lender Collateral Agent. ACFS and the Borrowers
shall cause amounts to be deposited into the Interest Reserve Account as set
forth in Section 5.01(x) of the Credit Agreement.
If at any time the Authorized Officer of the Lender Collateral Agent responsible
for the administration of the Collateral Account and the Interest Reserve
Account (collectively, the "Trust Accounts") has actual knowledge that any Trust
Account ceases to be an Eligible Account, the Lender Collateral Agent shall
transfer the funds in such Trust Account to another institution within 15
Business Days so that such account shall meet the requirements of an Eligible
Account.
(b) All amounts held in each Trust Account shall, to the extent
permitted by applicable laws, rules and regulations, be invested by the Lender
Collateral Agent, as directed by ACFS in writing (or, if ACFS fails to provide
such direction, amounts in each Trust Account shall be invested in investments
described in clause (d) of the definition of Cash Equivalents), in Cash
Equivalents that mature not later than one Business Day prior to the next
succeeding Distribution Date. The amounts held in each Trust Account on the
Business Day prior to each Distribution Date shall be invested by the Lender
Collateral Agent in overnight or next-day funds in such Cash Equivalents
reasonably available to the Lender Collateral Agent as directed in writing by
ACFS for the period of time from the Business Day prior to the Distribution Date
until such Distribution Date. All income or other gains from investment of
moneys on deposit in any such account shall be deposited by the Lender
Collateral Agent in such Trust Account immediately upon receipt. The taxpayer
identification number associated with each Trust Account shall be that of AFS
Funding and each Borrower shall report for Federal, state and local income tax
purposes, the income, if any, represented by each Trust Account attributable to
such Borrower. If any amounts are needed for disbursement from either Trust
Account and sufficient uninvested funds are not available therein to make such
disbursement, the Lender Collateral Agent shall cause to be sold or otherwise
converted to cash a sufficient amount of the investments in such account to make
such disbursement upon the written direction of ACFS. If ACFS shall fail to give
such direction, the Lender Collateral Agent shall convert to cash such
investments in any order without liability for any loss, penalties or otherwise.
Any such written direction shall certify that any such investment is authorized
by this Section 7. Investments in Cash Equivalents shall be made in the name of
the Lender Collateral Agent on behalf of the Secured Parties, and, except as
specifically required above, such investments shall not be sold or disposed of
prior to their maturity. Each and every investment of funds in each Trust
Account shall be made in Cash Equivalents held by a financial institution that
is a Securities Intermediary in an account pursuant to an agreement with such
financial institution, that requires such financial institution to (A) credit
such Cash Equivalents to a Securities Account exclusively in the name of the
Lender Collateral Agent, (B) comply with Entitlement Orders pertaining to such
account originated by the Lender Collateral Agent without further consent of the
Borrowers, (C)
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not enter into any agreement which grants "control" (as defined in Section 8-106
of Article 8) of such account (or any interest or property therein) to any
Person other than the Lender Collateral Agent, (D) subordinate any security
interest, banker's lien, right of setoff or other similar right which such
financial institution may have in such account to the interest of the Lender
Collateral Agent and (E) expressly treat each item of property as a Financial
Asset and such account as a Securities Account.
Subject to the other provisions hereof, the Lender Collateral Agent shall have
sole control over each such investment and the income thereon, and any
certificate or other instrument evidencing any such investment, if any, shall be
delivered directly to the Lender Collateral Agent or its agent, together with
each document of transfer, if any, necessary to transfer title and a Security
Entitlement free from any Adverse Claim to such investment to the Lender
Collateral Agent in a manner that complies with this Section 7. All interest,
dividends, gains upon sale and other income from, or earnings on, investments of
funds in each Trust Account shall be deposited in such Trust Account and
distributed pursuant to Section 6 hereof. If the Lender Collateral Agent is
given written instructions to invest funds in either Trust Account in
investments other than investments of the type described in clause (d) of the
definition of "Cash Equivalents", the Person giving such instructions agrees to
assist the Lender Collateral Agent in complying with the requirements herein
with respect to such investments.
(c) With respect to the Revolver Account Collateral:
(i) any Revolver Account Collateral that is held in deposit
accounts shall be held solely in the name of the Lender Collateral
Agent in accounts which satisfy clause (ii) of the definition of
Eligible Account; each such deposit account shall be subject to the
exclusive custody, dominion and control of the Lender Collateral Agent,
and the Lender Collateral Agent shall have sole signature authority
with respect thereto;
(ii) any Revolver Account Collateral that constitutes Physical
Property shall be delivered to the Lender Collateral Agent in
accordance with paragraph (i) of the definition of "Delivery" and shall
be continuously held, pending maturity or disposition, solely by the
Lender Collateral Agent;
(iii) any Revolver Account Collateral that constitutes a
Certificated Security shall be delivered to the Lender Collateral Agent
in accordance with paragraph (ii) of the definition of "Delivery" and
shall be continuously held, pending maturity or disposition, solely by
the Lender Collateral Agent;
(iv) any such Revolver Account Collateral that constitutes an
Uncertificated Security (including any investments in money market
mutual funds, but excluding any Federal Book Entry Security) and where
the issuer thereof is organized in a Revised Article 8 Jurisdiction,
shall be delivered to the Lender Collateral Agent in accordance with
paragraph (iii) of the definition of "Delivery" and shall be
maintained, pending
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maturity or disposition, through continued registration of the Lender
Collateral Agent's (or its nominee's) ownership of such security; and
(v) with respect to any Revolver Account Collateral that
constitutes a Federal Book Entry Security, the Lender Collateral Agent
shall maintain and obtain Control over such property.
Effective upon Delivery of any Revolver Account Collateral in the form of
Physical Property, book-entry securities or uncertificated securities, the
Lender Collateral Agent shall be deemed to have represented that it has
purchased such Revolver Account Collateral for value, in good faith and without
actual notice of any adverse claim thereto.
(d) The Borrowers will cause all proceeds of Revolver Collateral to be
deposited in the Collateral Account and will promptly deposit any amounts it
receives in respect thereof in the Collateral Account.
(e) On each Distribution Date that an Asset Backed Security is subject
to the Lien of this Agreement, the Lender Collateral Agent will withdraw an
amount equal to the Interest Reserve Requirement for such Asset Backed Security
for such month from the Interest Reserve Account and deposit such amount in the
Collateral Account.
(f) If an Asset Backed Security is released from the Lien of this
Agreement pursuant to Section 22 hereof, then the Lender Collateral Agent shall,
on the date such release is effective, withdraw from the Interest Reserve
Account and pay to, or at the direction of, the Borrowers an amount equal to the
Interest Reserve Requirement for such Asset Backed Security for each remaining
month with respect to which the Maximum Advance Percentage for such Asset Backed
Security would have been greater than zero had it remained an Eligible Security
subject to the Lien hereof.
Section 8 Fees and Expenses. ACFS covenants and agrees to pay to
the Lender Collateral Agent from time to time, and the Lender Collateral Agent
shall be entitled to, the fees and expenses agreed in writing between ACFS and
the Lender Collateral Agent, and will further pay or reimburse the Lender
Collateral Agent upon its request for all reasonable expenses and disbursements
incurred or made by the Lender Collateral Agent in accordance with any of the
provisions hereof or any other documents executed in connection herewith
(including the reasonable compensation and the reasonable expenses and
disbursements of its counsel and of all persons not regularly in its employ). To
the extent not paid by ACFS, such fees, expenses and disbursements will be paid
to the Master Collateral Agent in accordance with the provisions of Section 6.
The obligations of ACFS under this Section 8 to compensate the Lender Collateral
Agent and to pay or reimburse the Lender Collateral Agent for reasonable
expenses and disbursements shall survive the satisfaction and discharge of this
Agreement or the earlier resignation or removal of the Lender Collateral Agent.
When the Lender Collateral Agent incurs expenses or renders services in
connection with proceedings under the Bankruptcy Code or any
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other applicable federal or state bankruptcy, insolvency or other similar law,
or in case of any other comparable judicial proceedings relative to the
Borrowers, such expenses (including the fees and expenses of its counsel and
agents) and the compensation for such services are intended to constitute
expenses of administration under any bankruptcy law or law relating to creditors
rights generally.
Section 9 Representations And Warranties Of The Lender
Collateral Agent. The Lender Collateral Agent represents and warrants as of the
date hereof that:
(a) It is a banking organization, validly existing and in good
standing under the laws of State of New York;
(b) It has full power, authority and legal right to execute, deliver
and perform this Agreement and the Credit Agreement and has taken all necessary
action to authorize the execution, delivery and performance by it of this
Agreement and the Credit Agreement;
(c) The execution, delivery and performance by it of this Agreement
and the Credit Agreement do not violate any provision of its corporate charter
or by-laws;
(d) This Agreement and the Credit Agreement have been duly authorized,
executed and delivered by it and each constitutes its legal, valid and binding
agreement, enforceable against it in accordance with its terms, except as
enforceability may be limited by bankruptcy, insolvency reorganization or other
similar laws affecting the enforcement of creditors' rights generally and by
general principles of equity.
Section 10 Resignation By And Removal Of The Lender Collateral
Agent; Successor Lender Collateral Agent.
(a) The Lender Collateral Agent may at any time resign and terminate
its obligations under this Agreement upon at least 60 days prior written notice
to the Administrative Agent, the Agents and the Borrowers. No resignation shall
be effective until a successor Lender Collateral Agent shall have been appointed
and accepted its appointment. Promptly after receipt of notice of the Lender
Collateral Agent's proposed resignation, the Required Lenders shall appoint, by
written instrument, a successor collateral agent and notify the Borrowers
thereof. If a successor collateral agent is not appointed in accordance with the
foregoing procedures, the Lender Collateral Agent may petition a court of
competent jurisdiction to appoint a successor collateral agent. One (1) original
counterpart of such instrument of appointment shall be delivered to each of the
Administrative Agent, the Agents, the Lender Collateral Agent, the Master
Collateral Agent, the Borrowers and the successor collateral agent.
(b) The Required Lenders, upon at least 60 days written notice to the
Lender Collateral Agent (or, if such removal is for cause, such 60 day period
may be decreased to no less than twenty Business Days by the Required Lenders in
their sole discretion), may remove
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and discharge the Lender Collateral Agent (or any successor collateral agent
thereafter appointed) from the performance of its obligations under this
Agreement. A copy of such notice shall be delivered to each other party hereto.
Promptly after the giving of notice of removal of the Lender Collateral Agent,
the Required Lenders shall appoint, by written instrument, a successor
collateral agent and notify the Borrowers thereof. One (1) original counterpart
of such instrument of appointment shall be delivered to each of the Agents, the
Administrative Agent, the Lender Collateral Agent, the Master Collateral Agent,
the Borrowers and the successor collateral agent. No such removal shall become
effective until all outstanding amounts due and owing to the Lender Collateral
Agent are paid in full.
(c) In the event of any such resignation or removal, the Lender
Collateral Agent shall promptly transfer to the successor collateral agent, as
directed in writing by the Required Lenders, all physical security, accounts,
funds and investments being administered under this Agreement and shall
cooperate with the Administrative Agent, the Agents, the Borrowers and the
successor collateral agent to facilitate the continued perfection and priority
of the Lien granted for the benefit of the Secured Parties in the Revolver
Collateral.
Section 11 Indemnity. ACFS agrees to indemnify, defend and hold
harmless the Lender Collateral Agent and its directors, officers, agents and
employees against any and all claims, damages, losses, liabilities or expenses
(including, but not limited to, reasonable attorneys' fees, court costs and
costs of investigation) of any kind or nature whatsoever arising out of or in
connection with this Agreement and the Transaction Documents that may be imposed
upon, incurred by or asserted against the Lender Collateral Agent; provided,
however, that this Section 11 shall not relieve the Lender Collateral Agent from
liability for its willful misconduct or gross negligence, as conclusively
determined by a court of competent jurisdiction beyond all applicable appeals.
The provisions of this Section 11 shall survive the resignation or removal of
the Lender Collateral Agent or any successor Lender Collateral Agent and the
termination of this Agreement.
Section 12 Limitations Of Liability.
(a) The Lender Collateral Agent shall not be liable to the Borrowers,
ACFS, the Administrative Agent, any Lender, any Agent, any other Secured Party
or any other Person with respect to any action taken or not taken by it in the
performance of its obligations under this Agreement except to the extent of the
Lender Collateral Agent's gross negligence or willful misconduct. The
obligations of the Lender Collateral Agent shall be determined solely by the
express provisions of this Agreement. No representation, warranty, covenant,
agreement, obligation or duty of the Lender Collateral Agent shall be implied
with respect to this Agreement or the Lender Collateral Agent's services
hereunder.
(b) The Lender Collateral Agent may conclusively rely, and shall be
fully protected in acting or refraining from acting, upon and need not verify
the accuracy of (i) any oral instructions from any persons the Lender Collateral
Agent believes to be authorized to give such
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instructions, who shall only be, with respect to ACFS, the Borrowers, the Agents
and the Administrative Agent, persons the Lender Collateral Agent believes in
good faith to be duly authorized officers thereof, and (ii) any written
instruction, notice, order, request, direction, certificate, opinion or other
instrument or document believed by the Lender Collateral Agent to be genuine and
to have been signed and presented by the proper party or parties.
(c) The Lender Collateral Agent may consult with counsel nationally
recognized in the area of commercial transactions with regard to legal questions
arising out of or in connection with this Agreement, and the advice or opinion
of such counsel shall be full and complete authorization and protection in
respect of any action taken, omitted or suffered by the Lender Collateral Agent
in reasonable reliance, in good faith, and in accordance therewith; provided,
however, that if the Required Lenders give written instructions to the Lender
Collateral Agent or provide an opinion of counsel selected by them, which in
either case conflicts with any such advice or opinion of counsel, then the
Lender Collateral Agent shall follow such instructions of the Required Lenders
(unless such written instructions violate the express terms of this Agreement,
violate applicable law or subject the Lender Collateral Agent to liability) or
such opinion of counsel selected by the Required Lenders, and shall be fully
protected in acting or refraining to act thereon. Any such written instructions
from the Required Lenders shall contain an indemnity satisfactory to the Lender
Collateral Agent with respect to the instructions given to the Lender Collateral
Agent.
(d) No provision of this Agreement shall require the Lender Collateral
Agent to expend or risk its own funds or otherwise incur financial liability in
the performance of its duties under this Agreement if it shall have reasonable
grounds for believing that repayment of such funds or adequate indemnity
satisfactory to it is not assured to it.
(e) The Lender Collateral Agent may execute any of the trusts or
powers hereunder or perform any duties hereunder either directly or by or
through agents, attorneys, custodians or nominees appointed with due care, and
shall not be responsible for any willful misconduct or negligence on the part of
any agent, attorney, custodian or nominee so appointed.
(f) Whenever in the administration of the provisions of this Agreement
the Lender Collateral Agent shall deem it necessary or desirable that a matter
be proved or established prior to taking or suffering any action to be taken
hereunder, such matter (unless other evidence in respect thereof be herein
specifically prescribed) may, in the absence of gross negligence or bad faith on
the part of the Lender Collateral Agent, be deemed to be conclusively proved and
established by a certificate signed by an officer of any of ACFS, the Borrowers,
the Agents and the Administrative Agent, as the case may be, and delivered to
the Lender Collateral Agent and such certificate, in the absence of gross
negligence or bad faith on the part of the Lender Collateral Agent, shall be
full warrant to the Lender Collateral Agent for any action taken, suffered or
omitted by it under the provisions of this Agreement upon the faith thereof.
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(g) The Lender Collateral Agent shall have no obligation to invest and
reinvest any cash held in the Collateral Account in the absence of timely and
specific written investment direction from ACFS. In no event shall the Lender
Collateral Agent be liable for the selection of investments or for investment
losses incurred thereon. The Lender Collateral Agent shall have no liability in
respect of losses incurred as a result of the liquidation of any investment
prior to its stated maturity or the failure of ACFS to provide timely written
investment direction.
(h) Any corporation into which the Lender Collateral Agent may be
merged or converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which the Lender
Collateral Agent shall be a party, or any corporation succeeding to the business
of the Lender Collateral Agent shall be the successor of the Lender Collateral
Agent hereunder without the execution or filing of any paper with any party
hereto or any further act on the part of any of the parties hereto except where
an instrument of transfer or assignment is required by law to effect such
succession, anything herein to the contrary notwithstanding.
(i) Notwithstanding anything herein or in the Transaction Documents to
the contrary, in no event shall the Lender Collateral Agent have any obligation
or liability in respect of the monitoring or maintenance of the perfection of
any security interest evidenced hereby or for the filing or refiling or
recording or rerecording of any financing or continuation statements in respect
of any such security interest except if the Lender Collateral Agent fails to
comply with its obligations under Section 5(d)(2) with respect to any financing
or continuation statement which any Agent or Lender expressly requests that it
file pursuant to the terms thereof.
(j) The Lender Collateral Agent shall not be deemed to have notice of
any Event of Early Termination or Event of Default unless an Authorized Officer
of the Lender Collateral Agent is specifically notified in writing of such event
by an Agent.
Section 13 Term Of Agreement. This Agreement shall be terminated
upon the final indefeasible payment of all Obligations of the Borrowers under
the Transaction Documents and the termination of the Credit Agreement.
Section 14 Notices. All demands, notices and communications
relating to this Agreement shall be in writing and shall be deemed to have been
duly given when received by the other party or parties at the address shown in
the Credit Agreement, whether by personal delivery, express delivery or
facsimile, or such other address as may hereafter be furnished to the other
party or parties by like notice. Any such demand, notice or communication
hereunder shall be deemed to have been received on the date delivered to or
received at the premises of the addressee.
Section 15 GOVERNING LAW; VENUE; CONSENT TO JURISDICTION. (A)
THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAW OF
THE STATE OF NEW YORK, WITHOUT GIVING EFFECT
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TO ITS CONFLICT OF LAW PROVISIONS (OTHER THAN SECTIONS 5-1401 AND 5-1402 OF THE
NEW YORK GENERAL OBLIGATIONS LAW).
(B) VENUE FOR ANY ACTION BROUGHT UNDER THIS AGREEMENT MAY BE
IN ANY NEW YORK STATE COURT OR FEDERAL DISTRICT COURT SITTING IN NEW YORK
COUNTY, NEW YORK. EACH PARTY TO THIS AGREEMENT HEREBY CONSENTS TO THE
JURISDICTION OF SUCH COURT.
Section 16 Assignment. Except as expressly permitted herein, no
party to this Agreement may assign its rights or delegate its obligations under
this Agreement without the express written consent of the other parties.
Section 17 Counterparts. For the purpose of facilitating the
execution of this Agreement and for other purposes, this Agreement may be
executed simultaneously in any number of counterparts, each of which shall be
deemed to be an original, and together shall constitute and be one and the same
instrument.
Section 18 Headings. The section headings are not part of this
Agreement and shall not be used in its interpretation.
Section 19 Third Party Beneficiaries. It is hereby agreed by the
parties hereto that the Lenders and the other Secured Parties are, and are
intended to be, third party beneficiaries under this Agreement with the right to
enforce this Agreement as if parties hereto.
Section 20 Certain Remedies.
(a) The Lender Collateral Agent shall, at the written direction of the
Required Lenders, proceed to protect and enforce its rights and the rights of
the Secured Parties by such appropriate proceedings as the Required Lenders
shall deem most effective to protect and enforce any such rights, whether for
the specific enforcement of any covenant or agreement in any Transaction
Document or in and of the exercise of any power granted herein, or to enforce
any other proper remedy or legal or equitable right vested in the Lender
Collateral Agent by any Transaction Document or by law.
(b) In case there shall be pending, relative to either Borrower or any
other obligor upon the Advances or any Person having or claiming an ownership
interest in the Revolver Collateral, proceedings under the Bankruptcy Code or
any other applicable federal or state bankruptcy, insolvency or other similar
law, or in case a receiver, assignee or trustee in bankruptcy or reorganization,
liquidator, sequestrator or similar official shall have been appointed for or
taken possession of either Borrower or its property or such other obligor or
Person, or in case of any other comparable judicial proceedings relative to
either Borrower or other obligor upon the Advances, or to the creditors of
property of either Borrower or such other obligor, the Lender Collateral Agent,
irrespective of whether the principal of any Advances shall
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then be due and payable as therein expressed or by declaration or otherwise and
irrespective of whether the Lender Collateral Agent shall have made any demand
pursuant to the provisions of this Section, shall be entitled and empowered, by
intervention in such proceedings or otherwise, but unless requested in writing
by the Required Lenders shall not be obligated:
(1) to file and prove a claim or claims for the whole amount
of principal and interest owing and unpaid in respect of the Advances
and to file such other papers or documents as may be necessary or
advisable in order to have the claims of the Lender Collateral Agent
(including any claim for reimbursement of all expenses and liabilities
incurred, and all advances, if any, made, by the Lender Collateral
Agent and each predecessor Lender Collateral Agent, except as a result
of gross negligence, bad faith or willful misconduct) and of each of
the other Secured Parties allowed in such proceedings;
(2) unless prohibited by applicable law and regulations, to
vote (as directed by the Required Lenders) on behalf of the holders of
the Advances in any election of a trustee, a standby trustee or person
performing similar functions in any such proceedings;
(3) to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute all amounts
received with respect to the claims of the Secured Parties on their
behalf; and
(4) to file such proofs of claim and other papers or documents
as may be necessary or advisable in order to have the claims of the
Lender Collateral Agent or the Secured Parties allowed in any judicial
proceedings relative to such Borrower, its creditors and its property;
and any trustee, receiver, liquidator, custodian or other similar official in
any such proceeding is hereby authorized by each of such Secured Parties to make
payments to the Lender Collateral Agent, and, in the event that the Lender
Collateral Agent and the Required Lenders shall consent, to the making of
payments directly to such Secured Parties, to pay to the Lender Collateral Agent
such amounts as shall be sufficient to cover all reasonable expenses and
liabilities incurred, and all advances made, by the Lender Collateral Agent and
each predecessor Lender Collateral Agent except as a result of gross negligence,
bad faith or willful misconduct.
(c) Nothing herein contained shall be deemed to authorize the Lender
Collateral Agent to authorize or consent to or vote for or accept or adopt on
behalf of any Lender or other Secured Party any plan of reorganization,
arrangement, adjustment or composition affecting the Advances or the rights of
any holder thereof or to authorize the Lender Collateral Agent to vote in
respect of the claim of any Secured Party in any such proceeding except, as
aforesaid, to vote for the election of a trustee in bankruptcy or similar
person.
(d) In any proceedings brought by the Lender Collateral Agent to
enforce the Liens under the Transaction Documents (and also any proceedings
involving the interpretation of any
-20-
provision of any Transaction Document), the Lender Collateral Agent shall be
held to represent all the Secured Parties, and it shall not be necessary to make
any Secured Party a party to any such proceedings.
(e) The Lender Collateral Agent shall, at the written direction of the
Required Lenders, also do one or more of the following (subject to Section 12
hereof):
(i) institute proceedings in its own name and on behalf of the
Secured Parties as Lender Collateral Agent for the collection of all
amounts then payable on the Advances or under the Credit Agreement and
Supplemental Fee Letters with respect thereto, whether by declaration or
otherwise, enforce any judgment obtained, and collect from such Borrower
and any other obligor upon such Advances moneys adjudged due;
(ii) institute proceedings from time to time for the complete or
partial foreclosure upon the Revolver Collateral;
(iii) exercise any remedies of a secured party under the UCC and
take any other appropriate action to protect and enforce the right and
remedies of the Lender Collateral Agent and the Secured Parties; and
(iv) sell the Revolver Collateral or any portion thereof or
rights or interest therein, at one or more public or private sales called
and conducted in any manner permitted by law.
Section 21 Limited Liability of Lender Collateral Agent.
It is expressly understood and agreed by the parties hereto that (a) this
Agreement is executed and delivered by Deutsche Bank Trust Company Americas, not
individually or personally but solely as Lender Collateral Agent, in the
exercise of the powers and authority conferred and vested in it, (b) the
representations, undertakings and agreements herein made on the part of the
Lender Collateral Agent are made and intended not as personal representations,
undertakings and agreements by Deutsche Bank Trust Company Americas, but are
made and intended for the purpose of binding only the Lender Collateral Agent,
and (c) under no circumstances shall Deutsche Bank Trust Company Americas be
personally liable for the payment of any indebtedness or expenses of the Lender
Collateral Agent or be liable for the breach or failure of any obligation,
representation, warranty or covenant made or undertaken by the Lender Collateral
Agent under this Agreement.
Section 22 Release of Collateral.
The Borrowers may obtain releases of the Lender Collateral Agent's (for
the benefit of the Secured Parties) security interest in all or any part of the
Collateral from time to time, provided that (i) immediately after giving effect
to any requested release, there exists no Borrowing Base Deficiency and (ii)
unless the outstanding principal amount of Advances has
-21-
been reduced to zero and interest thereon and other amounts due hereunder and
under the Credit Agreement with respect thereto have been paid in full, there is
no Event of Early Termination, Event of Default or Default which has occurred
and is continuing. Each request for a release of Collateral shall be addressed
to the Administrative Agent, the Lender Collateral Agent and the Agents and
shall certify compliance with the immediately preceding sentence. Each such
request shall be given by the Borrowers to the Lender Collateral Agent, each
Agent and the Administrative Agent before 1:00 p.m. (New York City time) at
least two Business Days prior to the requested date of release, and the Lender
Collateral Agent shall release the requested Collateral unless it receives
written objection from an Agent within such period of time which demonstrates to
the Lender Collateral Agent's satisfaction that the requirements set forth in
clauses (i) and (ii) of the first sentence of this Section 22 related to the
requested release have not been satisfied. The Lender Collateral Agent shall
promptly forward to the Borrowers a copy of all such objections.
Section 23 Amendments. This Agreement may be amended only in
accordance with the provisions of the Credit Agreement.
[Signature Page Follows]
-22-
IN WITNESS WHEREOF, the parties hereto have caused their duly
authorized representatives to hereunto set their hand as of the day and year
first above written.
DEUTSCHE BANK TRUST COMPANY AMERICAS,
not in its individual capacity but solely
as Administrative Agent
By:/s/
---------------------------------------
Name:
Title:
By:/s/
---------------------------------------
Name:
Title:
AFS FUNDING CORP.
By:/s/
---------------------------------------
Name:
Title:
AFS SENSUB CORP.
By:/s/
---------------------------------------
Name:
Title:
AMERICREDIT FINANCIAL SERVICES, INC.
By:/s/
---------------------------------------
Name:
Title:
-23-
DEUTSCHE BANK TRUST COMPANY AMERICAS,
not in its individual capacity but solely as
Lender Collateral Agent
By:/s/
---------------------------------------
Name:
Title:
By:/s/
---------------------------------------
Name:
Title:
[Signature Page to Security Agreement]
-24-
Table of Contents
-----------------
Page
----
SECTION 1 DEFINITIONS ................................................... 1
SECTION 2 APPOINTMENT OF LENDER COLLATERAL AGENT ........................ 5
SECTION 3 BORROWERS' GRANT OF SECURITY INTEREST ......................... 5
SECTION 4 BORROWERS REMAIN LIABLE ....................................... 7
SECTION 5 COVENANTS OF ACFS REGARDING THE COLLATERAL .................... 7
SECTION 6 DISTRIBUTIONS ................................................. 10
SECTION 7 THE COLLATERAL ACCOUNT; INVESTMENTS ........................... 11
SECTION 8 FEES AND EXPENSES ............................................. 14
SECTION 9 REPRESENTATIONS AND WARRANTIES OF THE LENDER
COLLATERAL AGENT .......................................................... 15
SECTION 10 RESIGNATION BY AND REMOVAL OF THE LENDER COLLATERAL
AGENT; SUCCESSOR LENDER COLLATERAL AGENT .................................. 15
SECTION 11 INDEMNITY ..................................................... 16
SECTION 12 LIMITATIONS OF LIABILITY ...................................... 16
SECTION 13 TERM OF AGREEMENT ............................................. 18
SECTION 14 NOTICES ....................................................... 18
SECTION 15 GOVERNING LAW; VENUE; CONSENT TO JURISDICTION ................. 18
SECTION 16 ASSIGNMENT .................................................... 19
SECTION 17 COUNTERPARTS .................................................. 19
SECTION 18 HEADINGS ...................................................... 19
i
Table of Contents
-----------------
(continued)
Page
----
SECTION 19 THIRD PARTY BENEFICIARIES ..................................... 19
SECTION 20 CERTAIN REMEDIES .............................................. 19
SECTION 21 LIMITED LIABILITY OF LENDER COLLATERAL AGENT .................. 21
SECTION 22 RELEASE OF COLLATERAL ......................................... 21
SECTION 23 AMENDMENTS .................................................... 22
ii