EXHIBIT 10.23.1
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[Execution Copy]
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___________________________________________________
SECURITY AND COLLATERAL AGENT AGREEMENT
among
DEUTSCHE BANK AG,
NEW YORK BRANCH,
as Agent,
BANK ONE, N.A.,
as Collateral Agent and Securities Intermediary
AMERICREDIT FINANCIAL SERVICES, INC.,
individually and as Servicer
and
AMERICREDIT DB TRUST,
as Borrower
_____________________________________
Dated as of June 30, 2000
_____________________________________
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SECURITY AND COLLATERAL AGENT AGREEMENT
SECURITY AND COLLATERAL AGENT AGREEMENT dated as of June 30, 2000 among
DEUTSCHE BANK AG, NEW YORK BRANCH, as agent for the Lenders (in such capacity,
the "Agent"), BANK ONE, N.A., as collateral agent (including any successor
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thereto in such capacity, the "Collateral Agent"), BANK ONE, N.A., as securities
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intermediary hereunder (including any successor thereto in such capacity, the
"Securities Intermediary"), AMERICREDIT DB TRUST, a Delaware business trust (the
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"Borrower"), and AMERICREDIT FINANCIAL SERVICES, INC., a Delaware corporation
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("AFS"), individually and as Servicer.
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W I T N E S S E T H :
WHEREAS, AFS and the other Sellers are the owners of certain Receivables
(certain capitalized terms used in this Preamble are defined in Section 1 below)
and Asset Backed Securities;
WHEREAS, the Borrower desires to purchase or otherwise acquire certain of
such Receivables and Asset Backed Securities;
WHEREAS, the Noncommitted Lenders may, or if any Noncommitted Lender elects
not to, certain Committed Lenders shall, from time to time hereafter finance the
purchase of such Receivables and Asset Backed Securities by making Advances to
the Borrower under the Receivables Financing Agreement secured, inter alia, by
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such Receivables and Asset Backed Securities; and
WHEREAS, AFS will act as Servicer under the Receivables Financing
Agreement.
NOW, THEREFORE, AFS, the Borrower, the Collateral Agent, the Securities
Intermediary and the Agent, intending to be legally bound, hereby agree as
follows:
Section 1. Definitions. For all purposes of this Agreement, the following
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terms shall have the meanings set forth below, unless the context clearly
indicates otherwise. Capitalized terms used herein but not otherwise defined
shall have the meanings set forth in the Receivables Financing Agreement.
"Accrual Period" shall mean, with respect to any Distribution Date, the
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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.
"AFS" has the meaning specified in the introductory paragraph hereto.
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"Agent" has the meaning specified in the introductory paragraph hereto.
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"Agreement" means this Security and Collateral Agent Agreement, as it may
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be amended, supplemented or otherwise modified from time to time.
"Borrower" has the meaning specified in the introductory paragraph hereto.
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"Capped Expenses" means, at any time, costs and expenses due at such time
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(if any) to the Backup Servicer and the Collateral Agent under the Transaction
Documents not in excess of $7500 with respect to any Collection Period.
"Clause (ii) Cap" means, with respect to any Distribution Date, the sum of
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the daily interest which would have accrued on all Advances maintained on each
day during the Accrual Period with respect to such Distribution Date at a rate
per annum equal to 1.25% in excess of the Eurodollar Rate (determined as set
forth in the Receivables Financing Agreement provided that the Fixed Period
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referred to in the definition of Eurodollar Rate shall be the Accrual Period for
such Distribution Date).
"Collateral Agent" has the meaning specified in the introductory paragraph
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hereto.
"Facility A Available Amount" means, with respect to any Distribution Date,
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the sum of (a) the amount on deposit in the Facility A Subaccount as of the end
of the preceding Collection Period plus (b) the amount deposited in the Facility
A Subaccount pursuant to Section 8.18 of the Receivables Financing Agreement
representing payments under any Interest Rate Hedge with respect to the Accrual
Period ending on the day preceding such Distribution Date plus (c) the
investment income earned on amounts on deposit in the Facility A Subaccount and
the Facility A Share of any investment income earned on amounts on deposit in
the Collateral Account and the Reserve Account since the prior Distribution Date
(or the Closing Date in the case of the first Distribution Date) plus (d) any
amounts available under clause "Eighth" of Section 3(b) or clause "Sixth" of
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Section 3(d) hereof (as applicable).
"Facility B Available Amount" means, with respect to any Distribution Date,
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the sum of (a) the amount on deposit in the Facility B Subaccount as of the end
of the preceding Collection Period plus (b) the amount deposited in the Facility
B Subaccount pursuant to Section 8.18 of the Receivables Financing Agreement
representing payments under any Interest Rate Hedge with respect to the Accrual
Period ending on the day preceding such Distribution Date plus (c) the
investment income earned on amounts on deposit in the Facility B Subaccount and
the Facility B Share of any investment income earned on amounts on deposit in
the Collateral Account and the Reserve Account since the prior Distribution Date
(or the Closing Date in the case of the first Distribution Date) plus (d) any
amounts available under clause "Eighth" of Section 3(a) or clause "Sixth" of
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Section 3(c) hereof (as applicable).
"Increased Costs" means collectively, any increased cost, loss, breakage
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cost or liability owing to the Agent and/or any other Affected Person under
Article VI of the Receivables Financing Agreement.
"Indemnity Amounts" means, collectively, all indemnity obligations and
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other amounts owing to the Agent, any Lender and/or any other Indemnified Party
under Article XVII or Section 12.1 or Section 18.4 of the Receivables Financing
Agreement (to the extent not paid by AFS) and the unreimbursed amount (if any)
expended by the Lenders under Section 8.5(b) of the Receivables Financing
Agreement.
"Receivables Financing Agreement" means the Receivables Financing
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Agreement, dated as of the date hereof, among the Borrower, AFS, individually
and as Servicer and Custodian,
each Noncommitted Lender and Committed Lender party thereto, AmeriCredit Funding
Corp. IV, the Agent, and Bank One, N.A., as Backup Servicer and Collateral
Agent, as amended, extended or otherwise modified from time to time.
"Securities Intermediary" has the meaning specified in the introductory
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paragraph hereto.
"Senior Yield" means, with respect to any Distribution Date, the lesser of
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(x) the Yield payable on the Advances accrued during the Accrual Period with
respect to such Distribution Date and (y) the amount of the Clause (ii) Cap with
respect to such Distribution Date.
Section 2. Appointment of Collateral Agent; Securities Intermediary.
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(a) Subject to the terms and conditions hereof, the Agent, on behalf
of the Lenders and other Investors, hereby appoints Bank One, N.A., as
Collateral Agent hereunder and under the Receivables Financing Agreement,
and Bank One, N.A. hereby accepts such appointment.
(b) Bank One, N.A. in its capacity as Securities Intermediary
hereunder hereby undertakes and agrees to act as "security intermediary"
(as such term is defined in Section 8-501 of the Uniform Commercial Code as
in effect in the State of New York (the "New York UCC")) in connection with
the securities accounts hereinafter referred to in this Section 2(b) and
all securities, security entitlements, cash and other property held from
time to time in such securities accounts). In such capacity and in
accordance with Section 8.17 of the Receivables Financing Agreement, the
Securities Intermediary will (x) establish account number 6800094200 in the
name of Bank One, N.A., as Collateral Agent which account is the account
referred to herein as the "Collection Account", (y) establish account
number 6800094202 in the name of Bank One, N.A., as Collateral Agent which
account is the account referred to herein as the "Collateral Account" and
(z) establish account number 6800094201 in the name of Bank One, N.A., as
Collateral Agent which account is the account referred to herein as the
"Reserve Account." The Securities Intermediary represents, warrants,
acknowledges and agrees that:
(i) It shall not change the name or account number of the
Collection Account, the Collateral Account or the Reserve Account
without the prior written consent of the Collateral Agent;
(ii) All securities or other property comprising any financial
assets deposited in or credited to the Collection Account, the
Collateral Account or the Reserve Account shall be registered in the
name of the Securities Intermediary or the Collateral Agent or in
blank or shall be credited to another securities account or accounts
maintained in the name of the Securities Intermediary, and in no case
shall any financial asset deposited in or credited to any such account
be registered in the name of the Borrower, payable to the order of the
Borrower or specially indorsed to the Borrower except to the extent
the foregoing have been specially indorsed to the Securities
Intermediary or in blank;
(iii) All property delivered to the Securities Intermediary
pursuant to the Receivables Financing Agreement and this Agreement for
deposit in or credit to Collection Account, the Collateral Account or
the Reserve Account shall be promptly credited to such account;
(iv) Each of the Collection Account, the Collateral Account and
the Reserve Account is and shall remain a "securities account" as such
term is defined in Section 8-501(a) of the New York UCC, and the
Securities Intermediary agrees that each item of property (whether
investment property, financial asset, security, instrument or cash)
deposited in or credited to each such account shall be treated as a
"financial asset" within the meaning of Section 8-102(a)(9) of the New
York UCC and that, subject to the terms of the Receivables Financing
Agreement and this Agreement, the Securities Intermediary will treat
the Collateral Agent as the holder of a security entitlement in and as
entitled to exercise the rights that comprise any financial asset
deposited in or credited to such account;
(v) Bank One, N.A. in the ordinary course of its business
maintains securities accounts for others and is acting in that
capacity in exercising its rights and discharging its duties
hereunder; and
(vi) If at any time the Securities Intermediary shall receive
any notification from the Collateral Agent directing transfer or
redemption of any financial asset relating to the Collection Account,
the Collateral Account or the Reserve Account, the Securities
Intermediary shall comply with such entitlement order without further
consent by the Borrower or any other person.
Without limiting the generality of Section 12 of this Agreement the parties
agree that both this Agreement and the Collection Account, the Collateral
Account and the Reserve Account shall be governed by the laws of the State
of New York. Regardless of any provision in any other agreement, for
purposes of the New York UCC New York shall be deemed to be the Securities
Intermediary's jurisdiction and the Collection Account, the Collateral
Account and the Reserve Account (as well as all of the securities
entitlements related thereto) shall be governed by the laws of the State of
New York.
Section 3. Distributions.
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(a) Facility A - Prior to Termination Date. On each Distribution Date
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prior to the Facility Termination Date, the Collateral Agent shall
distribute, in accordance with the applicable Servicer's Certificate, the
Facility A Available Amount for such Distribution Date in the following
order of priority:
(i) FIRST, to the extent not previously paid by AFS or
otherwise by or on behalf of the Borrower (A) to the Servicer, the
Facility A Share (computed for the purposes of this Section 3(a) as of
the last day of the preceding Collection Period) of the Servicing Fee
(computed at a Servicing Fee Rate not in excess of 2.00% per annum)
for the related Collection Period; (B) to the Backup Servicer
and the Collateral Agent, the Facility A Share of the Backup Servicer
Fee for the related Collection Period; (C) to the Backup Servicer and
the Collateral Agent, the Facility A Share of the Capped Expenses; (D)
to the Backup Servicer, the Facility A Share of the Transition Costs
(if any) due to the Backup Servicer under the Transaction Documents;
and (E) to the Agent, on behalf of itself and the Lenders and
Liquidity Providers, the Facility A Share of the Fees payable on such
Distribution Date pursuant to the Fee Letter (and any Fees due and not
paid under this Section 3(a) on a prior Distribution Date);
(ii) SECOND, to the Agent, on behalf of the Lenders, an amount
equal to Yield on the Facility A Advances accrued during the Accrual
Period with respect to such Distribution Date but not in excess of the
Clause (ii) Cap with respect to such Distribution Date (and any Yield
with respect to any prior Accrual Period to the extent not paid
pursuant to this Section 3(a)(ii) on a prior Distribution Date);
(iii) THIRD, to the Agent, on behalf of the Lenders, the
principal amount of Facility A Advances which are to be paid or
prepaid to the extent then due and owing including, without
limitation, any amount of such principal required to prevent the
existence of, or remedy a Facility A Deficiency;
(iv) FOURTH, to the Reserve Account, until the amount on
deposit therein is equal to the Required Reserve Account Amount;
(v) FIFTH, to the extent not previously paid pursuant to
clause SECOND above, to the Agent, on behalf of the Lenders, an amount
equal to Yield on the Facility A Advances accrued during the Accrual
Period with respect to such Distribution Date (and any such Yield with
respect to any prior Accrual Period to the extent not paid on a prior
Distribution Date);
(vi) SIXTH, to the Agent, for the benefit of the Affected
Persons, the Facility A Share of any Increased Costs then due and
owing, and, to the extent not previously paid by or on behalf of the
Borrower, to each Indemnified Party, the Facility A Share of any
Indemnity Amounts then due and owing to each such Indemnified Party;
(vii) SEVENTH, to the extent not previously paid pursuant to
clause FIRST above, (A) to the Agent, the Facility A Share of any
costs and expenses due to the Agent under the Transaction Documents;
and (B) to the Backup Servicer and Collateral Agent, the Facility A
Share of any costs and expenses due to the Backup Servicer and
Collateral Agent under the Transaction Documents;
(viii) EIGHTH, to the extent of amounts remaining unpaid under
clauses FIRST through and including SEVENTH of Section 3(b) after
application of the Facility B Available Amount (other than amounts
described in clause (d) of the definition of such term) for such
Distribution Date, to the payment of such amounts (in the order of
priority set forth in Section 3(b)); and
(ix) NINTH, to the Borrower, the remaining portion of the
Facility A Available Amount.
(b) Facility B - Prior to Termination Date. On each Distribution Date
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prior to the Facility Termination Date, the Collateral Agent shall
distribute, in accordance with the applicable Servicer's Certificate, the
Facility B Available Amount for such Distribution Date in the following
order of priority:
(i) FIRST, to the extent not previously paid by AFS or
otherwise by or on behalf of the Borrower (A) to the Servicer, the
Facility B Share (computed for the purposes of this Section 3(b) as of
the last day of the preceding Collection Period) of the Servicing Fee
(computed at a Servicing Fee Rate not in excess of 2.00% per annum)
for the related Collection Period; (B) to the Backup Servicer and the
Collateral Agent, the Facility B Share of the Backup Servicer Fee for
the related Collection Period; (C) to the Backup Servicer and the
Collateral Agent, the Facility B Share of the Capped Expenses; (D) to
the Backup Servicer, the Facility B Share of the Transition Costs (if
any) due to the Backup Servicer under the Transaction Documents; and
(E) to the Agent, on behalf of itself and the Lenders and Liquidity
Providers, the Facility B Share of the Fees payable on such
Distribution Date pursuant to the Fee Letter (and any Fees due and not
paid under this Section 3(b) on a prior Distribution Date);
(ii) SECOND, to the Agent, on behalf of the Lenders, an amount
equal to Yield on the Facility B Advances accrued during the Accrual
Period with respect to such Distribution Date but not in excess of the
Clause (ii) Cap with respect to such Distribution Date (and any Yield
with respect to any prior Accrual Period to the extent not paid
pursuant to this Section 3(b)(ii) on a prior Distribution Date);
(iii) THIRD, to the Agent, on behalf of the Lenders, the
principal amount of Facility B Advances which are to be paid or
prepaid to the extent then due and owing including, without
limitation, any amount of such principal required to prevent the
existence of, or remedy a Facility B Deficiency;
(iv) FOURTH, to the Reserve Account, until the amount on
deposit therein is equal to the Required Reserve Account Amount;
(v) FIFTH, to the extent not previously paid pursuant to
clause SECOND above, to the Agent, on behalf of the Lenders, an amount
equal to Yield on the Facility B Advances accrued during the Accrual
Period with respect to such Distribution Date (and any such Yield with
respect to any prior Accrual Period to the extent not paid on a prior
Distribution Date);
(vi) SIXTH, to the Agent, for the benefit of the Affected
Persons, the Facility B Share of any Increased Costs then due and
owing, and, to the extent not previously paid by or on behalf of the
Borrower, to each Indemnified Party, the
Facility B Share of any Indemnity Amounts then due and owing to each such
Indemnified Party;
(vii) SEVENTH, to the extent not previously paid pursuant to clause
FIRST above, (A) to the Agent, the Facility B Share of any costs and
expenses due to the Agent under the Transaction Documents; and (B) to the
Backup Servicer and Collateral Agent, the Facility B Share of any costs and
expenses due to the Backup Servicer and Collateral Agent under the
Transaction Documents;
(viii) EIGHTH, to the extent of amounts remaining unpaid under
clauses FIRST through and including SEVENTH of Section 3(a) after
application of the Facility A Available Amount (other than amounts
described in clause (d) of the definition of such term) for such
Distribution Date, to the payment of such amounts (in the order of priority
set forth in Section 3(a)); and
(ix) NINTH, to the Borrower, the remaining portion of the Facility
B Available Amount.
(c) Facility A - After Termination Date. On each Distribution Date on or
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after the Facility Termination Date, the Collateral Agent shall distribute, in
accordance with the applicable Servicer's Certificate, or, if not delivered,
upon the Agent's direction, the Facility A Available Amount for such
Distribution Date and the Facility A Share of all amounts, if any, on deposit in
the Reserve Account and the Collateral Account in the following order of
priority:
(i) FIRST, to the extent not previously paid by AFS or otherwise
by or on behalf of the Borrower (A) to the Servicer, the Facility A Share
(computed for its purposes of this Section 3(c) as of the last day of the
preceding Collection Period) of the Servicing Fee (computed at a Servicing
Fee Rate not in excess of 2.00% per annum) for the related Collection
Period; (B) to the Backup Servicer and the Collateral Agent, the Facility A
Share of the Backup Servicer Fee for the related Collection Period; (C) to
the Backup Servicer and the Collateral Agent, the Facility A Share of the
Capped Expenses; (D) to the Backup Servicer, the Facility A Share of the
Transition Costs (if any) due to the Backup Servicer under the Transaction
Documents; and (E) to the Agent, on behalf of itself, the Lenders and the
Liquidity Providers, the Facility A Share of the Fees payable on such
Distribution Date pursuant to the Fee Letter (and any Fees due and not paid
under this Section 3(c) or 3(a) on a prior Distribution Date);
(ii) SECOND, to the Agent on behalf of the Lenders, an amount equal
to Yield on the Facility A Advances accrued during the Accrual Period with
respect to such Distribution Date but not in excess of the Clause (ii) Cap
with respect to such Distribution Date (and any such Yield with respect to
any prior Accrual Period to the extent not paid on a prior Distribution
Date under this Section 3(c) or 3(a));
(iii) THIRD, to the Agent, on behalf of the Lenders, the
principal amount of all outstanding Facility A Advances;
(iv) FOURTH, as follows (in the priority indicated): first, to
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the extent not previously paid pursuant to clause SECOND above, to the
Agent, on behalf of the Lenders, an amount equal to Yield on the
Facility A Advances accrued during the Accrual Period with respect to
such Distribution Date (and any such Yield with respect to any prior
Accrual Period to the extent not paid under this Section 3(c) or 3(a)
on a prior Distribution Date); and second, to the Agent, for the
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benefit of the Affected Persons, the Facility A Share of any Increased
Costs then due and owing, and, to the extent not previously paid by or
on behalf of the Borrower, to each Indemnified Party, the Facility A
Share of any Indemnity Amounts then due and owing to each such
Indemnified Party;
(v) FIFTH, to the extent not previously paid pursuant to
clause FIRST above, (A) to the Agent, the Facility A Share of any
costs and expenses due to the Agent under the Transaction Documents;
and (B) to the Backup Servicer and Collateral Agent, the Facility A
Share of any costs and expenses due to the Backup Servicer and
Collateral Agent under the Transaction Documents;
(vi) SIXTH, to the extent any amounts described in clauses
FIRST through and including FIFTH of Section 3(d) remain unpaid after
application of Facility B Available Amounts (other than amounts
described in clause (d) of the definition of such term) and the
Facility B Share of amounts in the Reserve Account and Collateral
Account, to pay such amounts in the order of priority set forth in
Section 3(d); and
(vii) SEVENTH, to the Borrower, the remaining portion of the
amount to be distributed.
(d) Facility B - After Termination Date. On each Distribution Date
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on or after the Facility Termination Date, the Collateral Agent shall
distribute, in accordance with the applicable Servicer's Certificate, or,
if not delivered, upon the Agent's direction, the Facility B Available
Amount for such Distribution Date and the Facility B Share of all amounts,
if any, on deposit in the Reserve Account and the Collateral Account in the
following order of priority:
(i) FIRST, to the extent not previously paid by AFS or
otherwise by or on behalf of the Borrower (A) to the Servicer, the
Facility B Share (computed for its purposes of this Section 3(d) as of
the last day of the preceding Collection Period) of the Servicing Fee
(computed at a Servicing Fee Rate not in excess of 2.00% per annum)
for the related Collection Period; (B) to the Backup Servicer and the
Collateral Agent, the Facility B Share of the Backup Servicer Fee for
the related Collection Period; (C) to the Backup Servicer and the
Collateral Agent, the Facility B Share of the Capped Expenses; (D) to
the Backup Servicer, the Facility B Share of the Transition Costs (if
any) due to the Backup Servicer under the Transaction Documents; and
(E) to the Agent, on behalf of itself, the Lenders
and the Liquidity Providers, the Facility B Share of the Fees payable on
such Distribution Date pursuant to the Fee Letter (and any Fees due and not
paid under this Section 3(d) or 3(b) on a prior Distribution Date);
(ii) SECOND, to the Agent on behalf of the Lenders, an amount equal
to Yield on the Facility B Advances accrued during the Accrual Period with
respect to such Distribution Date but not in excess of the Clause (ii) Cap
with respect to such Distribution Date (and any such Yield with respect to
any prior Accrual Period to the extent not paid on a prior Distribution
Date under this Section 3(d) or 3(b));
(iii) THIRD, to the Agent, on behalf of the Lenders, the principal
amount of all outstanding Facility B Advances;
(iv) FOURTH, as follows (in the priority indicated): first, to
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the extent not previously paid pursuant to clause SECOND above, to the
Agent, on behalf of the Lenders, an amount equal to Yield on the Facility B
Advances accrued during the Accrual Period with respect to such
Distribution Date (and any such Yield with respect to any prior Accrual
Period to the extent not paid under this Section 3(d) or 3(b) on a prior
Distribution Date); and second, to the Agent, for the benefit of the
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Affected Persons, the Facility B Share of any Increased Costs then due and
owing, and, to the extent not previously paid by or on behalf of the
Borrower, to each Indemnified Party, the Facility B Share of any Indemnity
Amounts then due and owing to each such Indemnified Party;
(v) FIFTH, to the extent not previously paid pursuant to clause
FIRST above, (A) to the Agent, the Facility B Share of any costs and
expenses due to the Agent under the Transaction Documents; and (B) to the
Backup Servicer and Collateral Agent, the Facility B Share of any costs and
expenses due to the Backup Servicer and Collateral Agent under the
Transaction Documents;
(vi) SIXTH, to the extent any amounts described in clauses FIRST
through and including FIFTH of Section 3(c) remain unpaid after application
of Facility A Available Amounts (other than amounts described in clause (d)
of the definition of such term) and the Facility A Share of amounts in the
Reserve Account and Collateral Account, to pay such amounts in the order of
priority set forth in Section 3(c); and
(vii) SEVENTH, to the Borrower, the remaining portion of the amount
to be distributed.
(e) Facility A - Interim Distributions. On each Interim Distribution Date
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with respect to Facility A, the Collateral Agent shall, at the direction of the
Servicer or the Agent, withdraw from the Facility A Subaccount and distribute
the following amounts in the following order of priority:
(i) FIRST, to the Agent, on behalf of the Lenders, Yield in
respect of any Facility A Advances being paid or prepaid on such date and,
on the last day of any Fixed Period for any Facility A Advance, Yield due
and unpaid with respect to such Advance; and
(ii) SECOND, to the Agent, on behalf of the Lenders, an amount
equal to the Facility A Advances being paid or prepaid on such date.
(f) Facility B - Interim Distributions. On each Interim Distribution
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Date with respect to Facility B, the Collateral Agent shall, at the direction of
the Servicer or the Agent, withdraw from the Facility B Subaccount and
distribute the following amounts in the following order of priority:
(i) FIRST, to the Agent, on behalf of the Lenders, Yield in
respect of any Facility B Advances being paid or prepaid on such date and,
on the last day of any Fixed Period for any Facility B Advance, Yield due
and unpaid with respect to such Advance; and
(ii) SECOND, to the Agent, on behalf of the Lenders, an amount
equal to the Facility B Advances being paid or prepaid on such date.
Section 4. The Reserve Account and the Collateral Account; Investments.
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(a) If, on any Distribution Date, the Facility A Available Amount or the
Facility B Available Amount is less than the aggregate amount required to be
distributed pursuant to clauses (i), (ii), (iii), (v) and (vi) of Section 3(a)
or Section 3(b), respectively, the Collateral Agent shall withdraw (or, if the
Reserve Account shall not at such time be maintained by the Collateral Agent,
the Collateral Agent shall direct the holder of the Reserve Account to withdraw)
the amount of such deficiency, up to the amount available in the Reserve
Account, from the Reserve Account and apply such amount in the order of priority
and in the manner set forth in such clauses of Section 3(a) and/or 3(b), as the
case may be.
(b) If, on any Distribution Date, the Facility A Available Amount or the
Facility B Available Amount plus the amount to be withdrawn from the Reserve
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Account pursuant to Section 4(a) on such Distribution Date is less than the
aggregate amount required to be distributed pursuant to clauses (i), (ii),
(iii), (iv), (v) and (vi) of Section 3(a) or Section 3(b), respectively, the
Collateral Agent shall withdraw (or, if the Collateral Account shall not at such
time be maintained by the Collateral Agent, the Collateral Agent shall direct
the holder of the Collateral Account to withdraw) the amount of such deficiency,
up to the amount available in the Collateral Account, from the Collateral
Account and apply such amount in the order of priority and in the manner set
forth in such clauses of Section 3(a) and/or 3(b), as the case may be.
(c) If, on any Interim Distribution Date, the amount withdrawn from the
Facility A Subaccount or the Facility B Subaccount is less than the aggregate
amount required to be distributed pursuant to clauses (i) and (ii) of Section
3(e) or Section 3(f),
respectively, the Collateral Agent shall withdraw (or, if the Reserve Account
shall not at such time be maintained by the Collateral Agent, the Collateral
Agent shall direct the holder of the Reserve Account to withdraw) the amount of
such deficiency, up to the amount available in the Reserve Account, from the
Reserve Account and apply such amount in the order of priority and in the manner
set forth in such clauses of Section 3(e) and/or 3(f), as the case may be;
provided that in computing the amount of any deficiency with respect to any
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Interim Distribution Date for the purposes of this Section 4(c) only, the amount
of Yield payable under each of Section 3(e)(i) and Section 3(f)(i) for such
Interim Distribution Date shall be deemed to be equal to the lesser of (x) the
Yield payable under such Section on such date (without regard to this proviso)
and (y) the sum of the daily interest which would have accrued on the relevant
Advances maintained on each day during the period from and including the
immediately preceding Distribution Date to such Interim Distribution Date at a
rate per annum equal to 1.25% in excess of the Eurodollar Rate for the Accrual
Period commencing on such immediately preceding Distribution Date.
(d) If, on any Interim Distribution Date, the amount withdrawn from the
Facility A Subaccount or the Facility B Subaccount plus the amount to be
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withdrawn from the Reserve Account pursuant to Section 4(c) on such Interim
Distribution Date is less than the aggregate amount required to be distributed
pursuant to clauses (i) and (ii) of Section 3(e) or 3(f), respectively, the
Collateral Agent shall withdraw (or, if the Collateral Account shall not at such
time be maintained by the Collateral Agent, the Collateral Agent shall direct
the holder of the Collateral Account to withdraw) the amount of such deficiency,
up to the amount available in the Collateral Account, from the Collateral
Account and apply such amount in the order of priority and in the manner set
forth in such clauses of Section 3(e) and/or 3(f), as the case may be.
(e) On the Facility Termination Date (if a Distribution Date) or otherwise
on the first Distribution Date following the Facility Termination Date, the
Collateral Agent shall withdraw (or direct the holder of the applicable account
to withdraw) all amounts on deposit in the Reserve Account and the Collateral
Account and apply such amount as provided in Sections 3(c) and 3(d) and at such
time the Reserve Account and the Collateral Account shall be closed.
(f) On each Distribution Date prior to the Facility Termination Date and
based solely on the Servicer's Certificate for such Distribution Date, the
Collateral Agent shall withdraw from the Reserve Account the amount on deposit
in the Reserve Account in excess of the Required Reserve Account Amount (after
giving effect to all distributions to be made on such Distribution Date pursuant
to Section 3(a) and Section 3(b), and any withdrawals to be made from the
Reserve Account pursuant to paragraph (a) of this Section 4) and distribute such
amount to the Borrower or as it may direct.
(g) On each Distribution Date prior to the Facility Termination Date
(after giving effect to the distributions to be made on such Distribution Date
pursuant to Section 3(a) and Section 3(b) and any withdrawals to be made from
the Collateral Account pursuant to paragraph (b) of this Section 4), the
Borrower shall be entitled to direct the Collateral Agent (with a copy of such
directions to be delivered to the Agent) to
withdraw and pay to the Borrower (or as it may direct), any and all amounts
on deposit in the Collateral Account so long as after giving effect to such
withdrawal no Borrowing Base Deficiency, Facility Termination Event or
Unmatured Facility Termination Event shall occur or be continuing.
(h) Notwithstanding the foregoing, if on any Distribution Date or
Interim Distribution Date, the amount on deposit in the Reserve Account
(the "Available Reserve Amount") or the amount on deposit in the Collateral
------------------------
Account (the "Available Collateral Amount") is less than the amount
---------------------------
required to pay in full the unpaid amounts described in Section 4(a), 4(b),
4(c) or 4(d), as the case may be, (i) the Facility A Share of the Available
Reserve Amount and/or the Available Collateral Amount shall be applied to
the extent thereof first, to the relevant amounts owing under Section 3(a),
3(c) or 3(e) (as applicable), with any remainder to be applied to relevant
amounts owing under Section 3(b), 3(d) or 3(f) (as applicable); and (ii)
the Facility B Share of the Available Reserve Amount and/or the Available
Collateral Amount shall be applied to the extent thereof first, to the
relevant amounts owing under Section 3(b), 3(d) or 3(f) (as applicable),
with any remainder to the applied to relevant amounts owing under Section
3(a), 3(c) or 3(e) (as applicable).
(i) All or a portion of the amounts on deposit in the Collection
Account, the Collateral Account and the Reserve Account shall be invested
and reinvested by the Collateral Agent at the direction of the Servicer in
one or more Permitted Investments. No such investment shall mature later
than the day prior to the next occurring Distribution Date. The amounts
held in the Collection Account, the Collateral Account and the Reserve
Account on the Business Day prior to each Distribution Date shall be
invested by the Collateral Agent in overnight or next-day funds in such
Permitted Investments reasonably available to the Collateral Agent as may
be acceptable to the Servicer (which shall initially be the Collateral
Agent's U.S. Treasury Securities Money Market Fund and, from time to time,
shall include such other proprietary Permitted Investments of the
Collateral Agent) for the period of time from the Business Day prior to the
Distribution Date until such Distribution Date. All income or other gains
from investment of moneys on deposit in any such account shall be deposited
by the Collateral Agent in the applicable account immediately upon receipt.
If any amounts are needed for disbursement from the Collection Account, the
Collateral Account or the Reserve Account and sufficient uninvested funds
are not available therein to make such disbursement, the 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
direction of the Servicer or, if the Servicer shall fail to give such
direction, the Agent.
(j) If at any time the Collection Account, the Collateral Account or
the Reserve Account ceases to be an Eligible Account, the Agent may direct
the Collateral Agent to transfer such account to another institution such
that such account shall meet the requirements of an Eligible Account.
Section 5. Expenses. It is understood that the Collateral Agent shall be
--------
entitled to receive reimbursement for costs and expenses and such reimbursement
obligation shall be
payable by the Borrower to the extent funds are available therefor under Section
3 hereof and otherwise by AFS.
Section 6. Representations And Warranties Of The Collateral Agent. The
------------------------------------------------------
Collateral Agent represents and warrants as of the date hereof that:
(a) It is a national banking association, validly existing and in
good standing under the laws of United States of America;
(b) It has full power, authority and legal right to execute, deliver
and perform this Agreement, the Custodian Agreement, the Lockbox Agreement,
the Purchase Agreement and the Receivables Financing Agreement
(collectively, the "CA Documents") and has taken all necessary action to
------------
authorize the execution, delivery and performance by it of the CA
Documents;
(c) The execution, delivery and performance by it of the CA
Documents do not violate in any material respect (i) any provision of any
law or regulation governing its banking and trust powers or any order,
writ, judgment, or decree of any court, arbitrator, or governmental
authority applicable to it or any of its assets or (ii) any provision of
its corporate charter or by-laws;
(d) The execution, delivery and performance by it of the CA
Documents do not require the authorization, consent or approval of, the
giving of notice to, the filing or registration with, or the taking of any
other action in respect of, any governmental authority or agency regulating
its banking and corporate trust activities; and
(e) The CA Documents have been duly executed and delivered by it and
each constitutes its legal, valid and binding agreement, enforceable in
accordance with its terms, except as enforceability may be limited by
bankruptcy, insolvency reorganization or other similar laws affecting the
enforcement of creditors' rights generally and by general principles of
equity.
Section 7. Resignation By And Removal Of The Collateral Agent; Successor
-------------------------------------------------------------
Collateral Agent.
----------------
(a) The Collateral Agent may at any time resign and terminate its
obligations under this Agreement upon at least 60 days prior written notice
to the Agent and AFS. No resignation shall be effective until a successor
collateral agent shall have been appointed and accepted its appointment.
Promptly after receipt of notice of the Collateral Agent's proposed
resignation, the Agent shall appoint, by written instrument, a successor
collateral agent and notify AFS thereof. If a successor collateral agent is
not appointed in accordance with the foregoing procedures, the 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 Agent, the Collateral Agent,
AFS and the successor collateral agent.
(b) The Agent, upon at least 60 days written notice to the
Collateral Agent (or, if such removal is for cause, such 60 day period may
be decreased to no less than three
Business Days by the Agent in its sole discretion), may remove and
discharge the 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 Collateral
Agent, the Agent shall appoint, by written instrument, a successor
collateral agent and notify AFS thereof. One (1) original counterpart of
such instrument of appointment shall be delivered to each of the Agent, the
Collateral Agent, AFS and the successor collateral agent.
(c) In the event of any such resignation or removal, the Collateral
Agent shall promptly transfer to the successor collateral agent, as
directed in writing by the Agent, all Transferred ABS held by it (with
appropriate instruments of transfer) and all accounts, funds and
investments being administered under this Agreement and shall cooperate
with the Agent, AFS and the successor collateral agent to facilitate the
continued perfection and priority of the Lien granted for the benefit of
the Secured Parties in the Borrower Collateral.
Section 8. Indemnity. The Borrower (to the extent of funds available
---------
therefor under Section 3 of this Agreement) and AFS agree, jointly and
severally, to indemnify and hold harmless the 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 Collateral Agent; provided, however, that this Section 8 shall not relieve
--------
the Collateral Agent from liability for its willful misconduct or gross
negligence. The provisions of this Section 8 shall survive the resignation or
removal of the Collateral Agent or any successor Collateral Agent and the
termination of this Agreement.
Section 9. Limitations Of Liability.
------------------------
(a) The Collateral Agent shall not be liable to the Borrower, the
Servicer, the Agent, any Lender, the Investors or any other Person with
respect to any action taken or not taken by it in good faith in the
performance of its obligations under this Agreement. The obligations of the
Collateral Agent shall be determined solely by the express provisions of
this Agreement. No representation, warranty, covenant, agreement,
obligation or duty of the Collateral Agent shall be implied with respect to
this Agreement or the Collateral Agent's services hereunder.
(b) The Collateral Agent may rely, and shall be protected in acting
or refraining to act, upon and need not verify the accuracy of (i) any oral
instructions from any persons the Collateral Agent believes to be
authorized to give such instructions, who shall only be, with respect to
the Servicer, the Borrower and the Agent, persons the 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 Collateral Agent to
be genuine and to have been signed and presented by the proper party or
parties.
(c) The 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
Collateral Agent in reasonable reliance, in good faith, and in accordance
therewith; provided, however, that if the Agent gives instructions to the
-------- -------
Collateral Agent or provides an opinion of counsel selected by them, which
in either case conflicts with any such advice or opinion of counsel, then
the Collateral Agent shall follow such instructions of the Agent (unless
such instructions violate the express terms of this Agreement or violate
applicable law) or such opinion of counsel selected by the Agent, and shall
be fully protected in acting or refraining to act thereon.
(d) No provision of this Agreement shall require the 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 is not reasonably assured to it.
Section 10. Term Of Agreement. This Agreement shall be terminated upon the
-----------------
final payment of all Obligations of the Borrower under the Transaction Documents
and the termination of any commitment of the Lenders under the Transaction
Documents.
Section 11. 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
Receivables Financing 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 12. GOVERNING LAW; VENUE; CONSENT TO JURISDICTION. (A) THIS
---------------------------------------------
AGREEMENT SHALL BE A CONTRACT MADE UNDER AND GOVERNED BY THE INTERNAL LAW OF
THE STATE OF NEW YORK, WITHOUT REGARD TO ANY OTHERWISE APPLICABLE CONFLICT OF
LAW PRINCIPLES THEREOF (OTHER THAN SECTION 5-1401 OF THE NEW YORK GENERAL
OBLIGATIONS LAW).
(B) VENUE FOR ANY ACTION BROUGHT UNDER THIS AGREEMENT MAY BE IN ANY NEW
YORK STATE COURT OR FEDERAL DISTRICT COURT SITTING IN NEW YORK, NEW YORK. EACH
PARTY TO THIS AGREEMENT HEREBY CONSENTS TO THE JURISDICTION OF SUCH COURT.
Section 13. 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 14. 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 15. Headings. The section headings are not part of this Agreement
--------
and shall not be used in its interpretation.
Section 16. Third Party Beneficiaries. It is hereby agreed by the parties
-------------------------
hereto that, the Lenders and the other Secured Parties are, and are intended to
be, third party beneficiaries under this Agreement.
Section 17. Remedies in Bankruptcy.
----------------------
(a) The Collateral Agent may, in its discretion (with the consent
of the Agent), and shall, at the direction of the Agent, proceed to protect
and enforce its rights and the rights of the Secured Parties by such
appropriate proceedings as the Collateral Agent or the Agent shall deem
most effective to protect and enforce any such rights, whether for the
specific enforcement of any covenant or agreement in any Transaction
Document or in and of the exercise of any power granted herein, or to
enforce any other proper remedy or legal or equitable right vested in the
Collateral Agent by any Transaction Document or by law.
(b) In case there shall be pending, relative to the Borrower or
any other obligor upon the Notes or any Person having or claiming an
ownership interest in the Borrower Collateral, proceedings under the
Bankruptcy Code or any other applicable federal or state bankruptcy,
insolvency or other similar law, or in case a receiver, assignee or trustee
in bankruptcy or reorganization, liquidator, sequestrator or similar
official shall have been appointed for or taken possession of the Borrower
or its property or such other obligor or Person, or in case of any other
comparable judicial proceedings relative to the Borrower or other obligor
upon the Notes, or to the creditors of property of the Borrower or such
other obligor, the Collateral Agent, irrespective of whether the principal
of any Notes shall their be due and payable as therein expressed or by
declaration or otherwise and irrespective of whether the 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:
(i) to file and prove a claim or claims for the whole amount
of principal and Yield owing and unpaid in respect of the Notes and
to file such other papers or documents as may be necessary or
advisable in order to have the claims of the Collateral Agent
(including any claim for reimbursement of all expenses and
liabilities incurred, and all advances, if any, made, by the
Collateral Agent and each predecessor Collateral Agent, except as a
result of negligence, bad faith or wilful misconduct) and of each of
the other Secured Parties allowed in such proceedings;
(ii) unless prohibited by applicable law and regulations, to
vote (with the consent of the Agent) on behalf of the holders of the
Notes in any election of a
trustee, a standby trustee or person performing similar functions in
any such proceedings;
(iii) 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
(iv) 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
Collateral Agent or the Secured Parties allowed in any judicial
proceedings relative to the Borrower, its creditors and its
property;
and any trustee, receiver, liquidator, custodian or other similar official in
any such proceeding is hereby authorized by each of such Secured Parties to make
payments to the Collateral Agent, and, in the event that the Collateral Agent
and the Agent shall consent, to the making of payments directly to such Secured
Parties, to pay to the Collateral Agent such amounts as shall be sufficient to
cover all reasonable expenses and liabilities incurred, and all advances made,
by the Collateral Agent and each predecessor Collateral Agent except as a result
of negligence, bad faith or wilful misconduct.
(c) Nothing herein contained shall be deemed to authorize the
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 Notes or the rights of
any holder thereof or to authorize the 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) All rights of action and of asserting claims under the
Transaction Documents, may be enforced by the Collateral Agent without the
possession of any of the Notes or the production thereof in any trial or
other proceedings relative thereto, and any such action or proceedings
instituted by the Collateral Agent shall be brought in its own name as
Collateral Agent, and any recovery of judgment, subject to the payment of
the reasonable expenses, disbursements and compensation of the Collateral
Agent, each predecessor Collateral Agent and their respective agents and
attorneys, shall be for the ratable benefit of the holders of the Notes and
other Secured Parties.
(e) In any proceedings brought by the Collateral Agent to enforce the
Liens under the Transaction Documents (and also any proceedings involving
the interpretation of any provision of any Transaction Document), the
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.
Section 18. Other Remedies. The Collateral Agent may (with the consent of
--------------
the Agent), or the Collateral Agent shall, at the direction of the Agent, also
do one or more of the following (subject to Section 9):
(a) institute proceedings in its own name and on behalf of the
Secured Parties as Collateral Agent for the collection of all amounts then
payable on the Notes or under the Receivables Financing Agreement and Fee
Letter with respect thereto, whether by declaration or otherwise, enforce
any judgment obtained, and collect from the Borrower and any other obligor
upon such Notes moneys adjudged due;
(b) institute proceedings from time to time for the complete or
partial foreclosure upon the Borrower Collateral;
(c) if not at the time so registered, cause all or any portion of the
Transferred ABS to be registered in the name of the Collateral Agent, its
nominee or designee;
(d) 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 Collateral Agent and the Secured Parties; and
(e) sell the Borrower Collateral or any portion thereof or rights or
interest therein, at one or more public or private sales called and
conducted in any manner permitted by law.
Section 19. Limitation on Liability. It is expressly understood and agreed
-----------------------
by the parties hereto that (a) this Agreement is executed and delivered by
Bankers Trust (Delaware), not individually or personally but solely as Trust
Trustee of the Borrower, in the exercise of the powers and authority conferred
and vested in it, (b) each of the representations, undertakings and agreements
herein made on the part of the Borrower is made and intended not as personal
representations, undertakings and agreements by Bankers Trust (Delaware) but is
made and intended for the purpose for binding only the Borrower, (c) nothing
herein contained shall be construed as creating any liability on Bankers Trust
(Delaware), individually or personally, to perform any covenant either expressed
or implied contained herein, all such liability, if any, being expressly waived
by the parties hereto and by any Person claiming by, through or under the
parties hereto and (d) under no circumstances shall Bankers Trust (Delaware) be
personally liable for the payment of any indebtedness or expenses of the
Borrower or be liable for the breach or failure of any obligation,
representation, warranty or covenant made or undertaken by the Borrower under
this Agreement or any other related documents.
[Signature Page Follows]
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 AG,
NEW YORK BRANCH, as Agent
By:___________________________________________
Name:
Title:
By:___________________________________________
Name:
Title:
AMERICREDIT DB TRUST
By: Bankers Trust (Delaware), not in its
individual capacity but solely as Trustee
By:___________________________________________
Name:
Title:
AMERICREDIT FINANCIAL SERVICES, INC.
By:___________________________________________
Name:
Title:
BANK ONE, N.A., as Collateral Agent
By:___________________________________________
Name:
Title:
[Signature Page to Security Agreement]
BANK ONE, N.A., as Securities Intermediary
By:_______________________________________
Name:
Title:
[Signature Page to Security Agreement]
Table of Contents
-----------------
Page
----
Section 1. Definitions...................................................................... 1
Section 2. Appointment of Collateral Agent.................................................. 3
Section 3. Distributions.................................................................... 4
Section 4. The Reserve Account and the Collateral Account; Investments...................... 10
Section 5. Expenses......................................................................... 12
Section 6. Representations And Warranties Of The Collateral Agent........................... 13
Section 7. Resignation By And Removal Of The Collateral Agent; Successor Collateral Agent... 13
Section 8. Indemnity........................................................................ 14
Section 9. Limitations Of Liability......................................................... 14
Section 10. Term Of Agreement................................................................ 15
Section 11. Notices.......................................................................... 15
Section 12. GOVERNING LAW; VENUE; CONSENT TO JURISDICTION.................................... 15
Section 13. Assignment....................................................................... 15
Section 14. Counterparts..................................................................... 15
Section 15. Headings......................................................................... 16
Section 16. Third Party Beneficiaries........................................................ 16
Section 17. Remedies in Bankruptcy........................................................... 16
Section 18. Other Remedies................................................................... 17
Section 19. Limitation on Liability.......................................................... 18
i
