Exhibit 10.30
SINKING FUND ACCOUNT AGREEMENT
This SINKING FUND ACCOUNT AGREEMENT, dated as of February 11, 2003 (as
amended, modified and supplemented from time to time, the "Agreement") among FCC
ACCEPTANCE CORP., a Delaware corporation (the "Borrower"), FIRST CONSUMER
CREDIT, INC., a Texas corporation, ("FCC"), as Servicer, DZ Bank AG Deutsche
Zentral-Genossenschaftsbank, Frankfurt Am Main, as agent (in such capacity, the
"Agent") for the Lender under and defined in the RLSA (as defined below) (the
"Lender"; the Agent and the Lender, and their respective successors and assigns,
collectively, the "Secured Parties") and U.S. BANK NATIONAL ASSOCIATION (the
"Bank").
RECITALS
WHEREAS, the Borrower, FCC, the Bank, Compu-Link Corporation, the Lender
and the Agent are parties to that certain Receivables Loan and Security
Agreement of even date herewith (as amended, modified or supplemented from time
to time, the "RLSA") pursuant to which the Lender shall from time to time,
subject to the conditions set forth therein, make loans to the Borrower secured
by certain Pledged Receivables (as defined therein) and related collateral
(collectively, the "Pledged Assets"); and
WHEREAS, the execution and delivery of this Agreement is a condition
precedent to the Lender's obligation to make such loans secured by the Pledged
Assets.
NOW, THEREFORE, in consideration of the foregoing premises, and for other
good and valuable consideration, the adequacy, receipt and sufficiency of which
are hereby acknowledged, the parties hereto agree as follows:
ARTICLE 1
DEFINITIONS
Section 1.1. Definitions.
(a) Certain capitalized terms used throughout this Agreement are
defined above or in this Section 1.1. Unless otherwise defined herein,
capitalized terms shall have the meaning assigned to such terms in the RLSA.
(b) As used in this Agreement, the following terms shall have the
following meanings (such meanings to be equally applicable to both the singular
and plural forms of the terms defined).
"Additional Deposit" is defined in Section 2.1(d) hereof.
"Applicable Treasury Security" means, as of any date of determination, the
United States Treasury Security having a term which is nearest to (but not
shorter than) the Weighted Average Term as of such date.
"Asset Reports" means the most recent reports provided by the Servicer to
the Agent pursuant to Section 6.12 of the RLSA ; provided, however, that if any
information required to be provided by the Servicer pursuant to such Section
shall not be provided as required pursuant to such Section or if, in the
judgment of the Agent (after consultation with the Servicer), any such
information actually provided pursuant to such Section is inaccurate or
incomplete, then, at the option of the Agent, "Asset Reports" shall include any
other information that the Agent believes, in good faith, to be accurate.
"Calculated Cap Amortizing Balance" means, as of any Calculation Date, the
projected scheduled amortizing balance of the Pledged Receivables as of such
Calculation Date, determined by the Servicer (based upon the Asset Reports)
based upon the (i) Outstanding Principal Balance of such Pledged Receivables as
of such Calculation Date (and assuming an outstanding term for such Pledged
Receivables equal to their Weighted Average Term as of such Calculation Date)
and (ii) Weighted Average APR of such Pledged Receivables as of the last day of
the immediately-preceding Remittance Period.
"Calculated Strike Price" means, as of any date of determination, the rate
per annum, as determined by the Agent (based on the Asset Reports), which shall
be equal to (A) the Weighted Average APR of the Pledged Receivables as of the
last day of the immediately-preceding Remittance Period minus (B) the sum of (i)
the Servicing Fee Rate or, if the Backup Servicer shall have been appointed as
Servicer pursuant to Section 6.15 of the RLSA, the Active Backup Servicing Fee
Rate, (ii) the Custodian's Fee Rate for the immediately-preceding Remittance
Period, (iii) prior to the date, if any, on which the Backup Servicer shall have
been appointed as Servicer pursuant to Section 6.15 of the RLSA, the Standby
Back-up Servicer's Fee Rate for the immediately-preceding Remittance Period,
(iv) the Weighted Average Facility Fee Rate as of the last day of the
immediately-preceding Remittance Period and (v) 5.00% per annum.
"Calculated Swap Amortizing Balance" means, as of any Calculation Date, the
projected scheduled amortizing balance of the Pledged Receivables as of such
Calculation Date, determined by the Servicer (based upon the Asset Reports)
based upon the (i) Outstanding Principal Balance of such Pledged Receivables as
of such Calculation Date (and assuming an outstanding term for such Pledged
Receivables equal to their Weighted Average Term as of such Calculation Date)
and (ii) Weighted Average APR of such Pledged Receivables as of the last day of
the immediately-preceding Remittance Period, adjusted for prepayments using an
absolute prepayment speed which, in the judgment of the Agent, is consistent
with the speed with which the Pledged Receivables have prepaid in the past.
"Calculation Date" means (i) each Remittance Date, (ii) each Borrowing Date
and (iii) if neither a Remittance Date nor a Borrowing Date occurs in any
calendar week, the last Business Day of such calendar week.
"Cap Premium" means, as of any Calculation Date, the lower of the prices
quoted by the Pricing Agents for the purchase of a Specified Rate Cap on such
Calculation Date.
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"Cap Provider" means DZ Bank AG Deutsche Zentral-Genossenschaftsbank,
Frankfurt Am Main or any other financial institution that is in the business of
selling interest rate caps, is acceptable to the Agent and has, at the time such
interest rate cap is purchased, a short-term debt rating of at least "A-1" from
S&P, "P-1" from Xxxxx'x and "F-1" from Fitch and a long-term debt rating of at
least "A" from S&P, "A2" from Xxxxx'x and "A" from Fitch.
"Custodian's Fee Rate" means, with respect to any Remittance Period, a rate
per annum equal to (i) the product of (a) the Custodian's Fee for such
Remittance Period and (b) 12, divided by (ii) the daily average aggregate face
amount of outstanding commercial paper issued by the Lender and other amounts
advanced by the Lender, in each case, to fund Loans under the RLSA during such
Remittance Period.
"Delivery Date" means the date upon which the initial Borrowing under the
RLSA shall occur.
"Deposit Date" means any Business Day upon which, in the determination of
the Agent, (i) the Eurodollar Rate, as of such Business Day, shall be greater
than or equal to the Transaction Rate, as of such Business Day, or (ii) (x) the
sum of (A) the effective yield of the Applicable Treasury Security, as of such
Business Day, and (B) the Swap Spread, as of such Business Day, shall be greater
than or equal to (y) the difference between (A) the Calculated Strike Price, as
of such Business Day, and (B) 0.25% per annum.
"Eurodollar Rate" means, with respect to any Business Day, the interest
rate per annum reported on such Business Day on Telerate Access Service Page
3750 (British Bankers Association Settlement Rate) as the London Interbank
Offered Rate for United States dollar deposits having a term of thirty (30) days
and in a principal amount of $1,000,000 or more (or, if such page shall cease to
be publicly available or, if the information contained on such page, in the
Agent's sole judgment, shall cease to accurately reflect such London Interbank
Offered Rate, such rate as reported by any publicly available recognized source
of similar market data selected by the Agent that, in the Agent's reasonable
judgment, accurately reflects such London Interbank Offered Rate).
"Overall Hedge Position" means, as of any date of determination, the hedge
position determined by the Agent to provide the Lender with an amortizing
interest rate cap in respect of a floating rate of interest equal to the
Eurodollar Rate and having (i) a term equal to Weighted Average Term of the
Pledged Receivables as of such date of determination, (ii) a strike price equal
to the Calculated Strike Price, as of such date of determination, and (iii) a
varying notional balance equal to the Calculated Cap Amortizing Balance, as of
such date of determination.
"Pricing Agents" means DZ Bank AG Deutsche Zentral-Genossenschaftsbank,
Frankfurt Am Main, Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated and/or
such other swap dealer or dealers in the market which shall be selected by the
Agent to replace either or both of such Persons.
"Purchased Rate Caps" is defined in Section 2.3 hereof.
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"Remittance Date" means the fifteenth day of each month or, if such date is
not a Business Day, the next succeeding Business Day; provided, however, that
the final Remittance Date shall occur on the Collection Date and the Agent shall
notify the Bank in writing at least two (2) Business Days prior to the
Collection Date.
"Reporting Date" is defined in Section 2.1(d) hereof.
"Required Sinking Fund Account Balance" means, as of any Calculation Date,
an amount equal to (a) 110% multiplied by (b) the Cap Premium for the purchase
of a Specified Rate Cap on such Calculation Date.
"Secured Obligations" is defined in Section 3.1 hereof.
"Servicer" means FCC. Upon the replacement of FCC with the Backup Servicer
pursuant to Section 6.15 of the RLSA and the Backup Servicer's assumption of
all, or a portion, of the duties and obligations of FCC hereunder, the Backup
Servicer shall be the Servicer in respect of that portion of such duties and
obligations which shall have been assumed by the Backup Servicer.
"Sinking Fund Account" is defined in Section 2.1(a) hereof.
"Sinking Fund Collateral" is defined in Section 3.3 hereof.
"Specified Event" means any of the following:
(a) the Borrower or the Servicer shall fail to comply with Section
2.1(d) hereof (provided that, in the case of delivery of any reports or
notices required to be delivered by the Borrower or the Servicer pursuant
to Section 2.1(d), the Borrower or the Servicer, as the case may be, shall
fail to provide such report or notice within one Business Day after the
date such report or notice is due thereunder) or any provision of Article 2
hereof;
(b) any representation or warranty of the Borrower herein shall be
untrue in any material respect when made;
(c) the Borrower shall fail to comply in any material respect with any
of its other obligations hereunder;
(d) any Bankruptcy Event shall occur with respect to the Borrower or
the Servicer;
(e) the Sinking Fund Account or any funds therein become subject to
any writ, order, judgment, warrant of attachment, execution or similar
process or stay or similar legal restraint;
(f) the occurrence and continuation of any "Event of Default" under
and as defined in the RLSA; or
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(g) if at any time (i) the Eurodollar Rate plus 0.25% exceeds (ii) the
Calculated Strike Price.
"Specified Rate Cap" means, with respect to any date for purchase thereof,
an interest rate cap agreement with a Cap Provider, the economic terms of which,
when taken together with any other interest rate cap agreements purchased
pursuant to Section 3.1, is determined by the Agent as providing the Lender with
the Overall Hedge Position on such date.
"Standby Back-up Servicer's Fee Rate" means, with respect to any Remittance
Period, a rate per annum equal to (i) the product of (a) the Standby Back-up
Servicer's Fee for such Remittance Period and (b) 12, divided by (ii) the daily
average aggregate face amount of outstanding commercial paper issued by the
Lender and other amounts advanced by the Lender, in each case, to fund Loans
under the RLSA during such Remittance Period.
"Swap Counterparty" is defined in Section 3.2 hereof.
"Swap Documents" is defined in Section 3.2 hereof.
"Swap Obligations" is defined in Section 3.2 hereof.
"Swap Spread" means, in respect of any date of determination, the annual
rate of interest (expressed as a percentage) above and beyond the effective
yield on the Applicable Treasury Security, as of such date of determination,
which the fixed-rate payor would be required to pay under an interest rate swap
agreement to be entered into on such date of determination in order to receive a
floating rate of interest based upon the Eurodollar Rate under such interest
rate swap agreement, all as determined by the Agent.
"Swap Transaction" is defined in Section 3.2 hereof.
"Transaction Rate" means, as of any date of determination, the rate per
annum, as determined by the Agent (based on the Asset Reports), which shall be
equal to (A) the Weighted Average APR of the Pledged Receivables as of the last
day of the immediately-preceding Remittance Period minus (B) the sum of (i) the
Servicing Fee Rate, or, if the Backup Servicer shall have been appointed
pursuant to Section 6.15 of the RLSA, the Active Backup Servicing Fee Rate, (ii)
the Custodian's Fee Rate for the immediately preceding Remittance Period, (iii)
prior to the date, if any, on which the Backup Servicer shall have been
appointed as Servicer pursuant to Section 6.15 of the RLSA, the Standby Back-up
Servicer's Fee Rate for the immediately-preceding Remittance Period, (iv) the
Weighted Average Facility Fee Rate as of the last day of the
immediately-preceding Remittance Period and (v) 6.00% per annum.
"Weighted Average APR" means, as of any date of determination, in respect
of the Pledged Receivables, the weighted average (weighted solely based upon the
Outstanding Principal Balances of the Pledged Receivables as of such date) of
the Coupon Rates set forth in the Contracts related to such Pledged Receivables.
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"Weighted Average Facility Fee Rate" means, as of the last day of any
Remittance Period, the rate per annum most recently determined by the Agent
which shall be equal to a fraction (expressed as a percentage), the numerator of
which shall be equal to the sum of the Yield (but only such portion thereof
equal to the CP Margin or the Adjusted Eurodollar Rate Margin (as applicable))
and the Fees accrued during such Remittance Period and the denominator of which
shall be equal to the average Facility Amount during such Remittance Period (net
of Yield and Fees).
"Weighted Average Term" means, as of any date of determination, the
weighted average (weighted solely based upon the Outstanding Balances of the
Pledged Receivables as of such date) of the remaining terms of the Pledged
Receivables as of such date.
ARTICLE 2
SINKING FUND ACCOUNT; PURCHASED RATE CAPS
Section 2.1. Establishment of Sinking Fund Account, Calculations, Etc.
(a) On or prior to the Delivery Date, the Borrower shall establish an
account at the Bank designated "Sinking Fund Account - DZ Bank, as Agent, for
the benefit of DZ Bank and Autobahn Funding LLC, and their successors and
assigns, as their interests may appear" (the "Sinking Fund Account"). The Agent,
as agent and for the benefit of the Secured Parties, shall have sole dominion
and control of the Sinking Fund Account and all funds therein.
(b) No withdrawals may be made of funds in the Sinking Fund Account
except as provided in Sections 2.1(e), 2.3, and 6.1 of this Agreement. Funds in
the Sinking Fund Account shall not be commingled with any other moneys. All
moneys deposited from time to time in the Sinking Fund Account and all
investments made with such moneys shall be made in the name of the Agent for the
benefit of the Secured Parties and held by the Agent for the benefit of the
Secured Parties in the Sinking Fund Account and applied as set forth herein.
(c) On the second Business Day prior to each Remittance Date and on
any Business Day at the request of the Agent, the Bank shall deliver to the
Agent a written notice regarding the balance of the Sinking Fund Account as of
such date.
(d) Two Business Days prior to each Calculation Date (the "Reporting
Date"), the Servicer shall provide the Agent and Borrower with a written notice
which sets forth (i) the Outstanding Principal Balances of the Pledged
Receivables as of such Reporting Date, (ii) the Outstanding Principal Balances
of the expected Pledged Receivables as of the immediately-succeeding Calculation
Date, based upon, if applicable, any Notice of Borrowing which shall be
delivered by the Borrower or Servicer on such Reporting Date and (iii) the
Weighted Average APR and the Weighted Average Term of the Pledged Receivables as
of the last day of the immediately-preceding Remittance Period. On each
Reporting Date which shall be a Deposit Date, the Agent shall obtain from the
Pricing Agents the quotations which are required in order for the Agent to
determine the Cap Premium for the purchase of a Specified Rate Cap on the
immediately-succeeding Calculation Date, assuming, if applicable, the occurrence
on such
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Calculation Date of the Borrowing contemplated by any Notice of Borrowing which
shall have been delivered on such Reporting Date. On each Reporting Date which
shall be a Deposit Date, the Agent shall calculate the Required Sinking Fund
Account Balance as of the immediately-succeeding Calculation Date based on the
information required to be delivered pursuant to this Section 2.1(d) (or if any
such information shall not be so delivered or shall, in the judgment of the
Agent (after consultation with the Servicer), be inaccurate then, at the option
of the Agent, based upon information that the Agent shall believe, in good
faith, to be accurate), and the Agent shall provide notice of such Required
Sinking Fund Account Balance to the Lender, Borrower and Servicer on or prior to
such Calculation Date. The Servicer shall set forth such Required Sinking Fund
Account Balance and the actual balance of the Sinking Fund Account in a written
report which shall be delivered to the Agent and Borrower on such Calculation
Date. If the balance of the Sinking Fund Account shall be less than the Required
Sinking Fund Account Balance as of such Calculation Date, the Agent shall give
the Servicer notice of the amount of such deficiency and the Servicer shall
transfer funds from the Collection Account pursuant to Section 2.05(c)(vi) of
the RLSA on such Calculation Date into the Sinking Fund Account (each such
transfer, an "Additional Deposit") such that immediately after giving effect to
such Additional Deposit, the balance of the Sinking Fund Account shall be an
amount equal to or in excess of the Required Sinking Fund Account Balance as of
such Calculation Date. The failure of the Servicer to make an Additional Deposit
pursuant to this Section 2.1(d) shall constitute a Specified Event. Each
Additional Deposit shall be made by no later than 12:00 noon, New York City
time, on the applicable Calculation Date.
(e) In the event that the Agent's most recent determination pursuant
to Section 2.1(d) indicates that the balance of the Sinking Fund Account shall
exceed the Required Sinking Fund Account Balance, the Borrower may request that
an amount not to exceed such excess be withdrawn from the Sinking Fund Account
and be released to the Borrower in accordance with Section 2.3 hereof. Such a
request shall be made in writing and delivered to the Bank and the Agent no
later than 11:00 a.m., New York City time on the Business Day immediately
preceding the applicable Remittance Date. The Bank shall release to the Borrower
from the Sinking Fund Account the amount requested by the Borrower in accordance
with this Section 2.1(e) and Section 2.3, provided that the Bank shall have
received written confirmation from the Agent that such withdrawal has been
approved by the Agent, which approval shall not be unreasonably withheld by the
Agent.
(f) Except as specifically provided herein, the Sinking Fund Account
shall be maintained by the Bank at all times separate and apart from any other
account of the Borrower or the Servicer. All income or loss on investments of
funds in the Sinking Fund Account shall be reported by the Borrower as taxable
income or loss of the Borrower. The Sinking Fund Account shall constitute
property of the Borrower subject to the security interest granted therein to the
Agent for the benefit of the Secured Parties.
Section 2.2. Investments.
(a) Funds which may at any time be held in the Sinking Fund Account
shall be invested and reinvested in Permitted Investments by the Bank, at the
written direction (which may include, subject to the provisions hereof, general
standing instructions) of the Borrower
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(except that if the Agent shall notify the Bank in writing that a Specified
Event shall have occurred and be continuing, such funds shall be invested and
reinvested solely at the written direction of the Agent) or its designee
received by the Bank by 1:00 p.m., New York City time on the Business Day prior
to the date on which such investment shall be made. If no written direction with
respect to all or any portion of the funds in the Sinking Fund Account is
received by the Bank, the Bank shall invest such funds in such Permitted
Investments as the Bank may select, provided that the Bank shall not be liable
for any loss or absence of income resulting from such investments.
(b) Any investment of funds in the Sinking Fund Account shall be made
in Permitted Investments held by a financial institution with respect to which
(a) such institution has noted the Agent's security interest therein by book
entry or otherwise and (b) a confirmation of the Agent's interest has been sent
to the Agent by such institution. Notwithstanding the other provisions hereof,
the Agent shall have sole dominion and control over each such investment and the
income thereon for the benefit of the Lender, and any certificate or other
instrument evidencing any such investment shall be issued in the name of, and
delivered directly to, the Agent, for the benefit of the Lender, together with
each document of transfer, if any, necessary to transfer title to such
investment to the Agent, for the benefit of the Lender, in a manner which
complies with this subsection.
(c) All moneys on deposit in the Sinking Fund Account, together with
any deposits or securities in which such moneys may be invested or reinvested,
and any gains from such investments, shall constitute Sinking Fund Collateral
hereunder subject to the security interest granted herein.
(d) The Bank shall not be liable by reason of any insufficiency in any
Sinking Fund Account resulting from any loss on any Permitted Investment
included therein.
Section 2.3. Withdrawals. Withdrawals from the Sinking Fund Account shall
be made only as set forth in Section 2.1(e), Section 6.1 and as set forth below
in this Section 2.3:
(a) Upon the written consent of the Agent received by the Bank at
least one Business Day prior to such withdrawal, the Bank shall withdraw the
amount specified by the Borrower pursuant to Section 2.1(e) and transfer it to
the Borrower at an account designated by the Borrower.
(b) From time to time, at the written direction of the Borrower (with
the written consent of the Agent) or the Agent at least one Business Day prior
to such withdrawal, the Bank shall withdraw the amount specified by the Borrower
(with the written consent of the Agent) or the Agent and transfer it to the Cap
Provider designated by the Borrower or the Agent to purchase a Specified Rate
Cap for the account of the Lender pursuant to Section 3.1. The Agent shall
deliver such written consent, so long as no Event of Default exists under the
RLSA, the Borrower is in current compliance with Section 2.1(d) and the Borrower
is otherwise in current compliance in all material respects with the terms of
this Agreement.
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(c) From time to time, at the written direction of the Agent pursuant
to Section 3.2, to satisfy the Borrower's Swap Obligations.
(d) At any time after the Collection Date and at the written direction
of the Borrower (with the written confirmation of the Agent that the Collection
Date has occurred) at least one Business Day prior to such withdrawal, an amount
equal to the balance of the Sinking Fund Account shall be transferred to the
Borrower.
All Specified Rate Caps and interest rate caps purchased pursuant to Section
6.1, this Section 2.3 or Section 3.1 (collectively "Purchased Rate Caps") shall
be in form and substance satisfactory to the Agent in its sole discretion.
Section 2.4. Waiver of Set-Off. The Bank, by its execution of this
Agreement, hereby waives with respect to the Sinking Fund Account, in each case
to the extent permitted under applicable law, (i) any banker's or other
statutory or similar lien, and (ii) any right of setoff or other similar right
under applicable law and hereby agrees to notify the Borrower and the Agent of
any charge or claim against or with respect to the Sinking Fund Account.
Section 2.5. Reports by the Bank. On the second Business Day prior to each
Remittance Date and on any Business Day at the request of the Agent, the Bank
shall report to the Borrower, the Agent and the Servicer the amount then on
deposit in the Sinking Fund Account and the identity of the investments included
therein as of such applicable date, and shall provide to the Agent, Borrower and
Servicer on such applicable date accountings of deposits into and withdrawals
from the Sinking Fund Account, and of the investments made therein.
Section 2.6. Transfer of Purchased Rate Caps. After the Collection Date and
provided that the Borrower shall have fulfilled all of its obligations under
this Agreement, upon the request of the Borrower, the Secured Parties shall
assign their rights to future accrued payments under the Purchased Rate Caps
then in effect, to the extent permitted thereunder, to the Borrower, and to the
extent such rights are not assignable thereunder, the Agent will terminate the
Purchased Rate Caps then in effect, and (i) Borrower shall be responsible for
any payment required to be made by Borrower as a result of such termination, and
(ii) any payment received by the Agent from the applicable counterparty as a
result of such termination shall be paid to Borrower.
ARTICLE 3
SECURED OBLIGATIONS
Section 3.1. Obligation to Purchase Specified Rate Caps. On the first
Deposit Date and thereafter until the Collection Date shall have occurred, the
Borrower shall purchase, for the account of the Secured Parties, Specified Rate
Caps (such obligation to purchase, the "Secured Obligations") from time to time
upon the written request of the Agent; provided, however, that so long as no
Specified Event shall have occurred and be continuing, the Borrower shall not be
required to purchase Specified Rate Caps if, in the judgment of the Agent, the
Specified Rate Caps then in effect, if any, and the funds in the Sinking Fund
Account (if applied toward the
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purchase of one or more additional interest rate caps) would be sufficient to
establish a continual Overall Hedge Position; and further, provided, that in the
event that a Specified Event described in clause (a), (e), (f) or (g) of the
definition thereof shall occur and be continuing, such request of the Agent
shall not be required and the Borrower shall automatically be obligated to
immediately purchase a Specified Rate Cap. Each purchase of a Specified Rate Cap
under this Section 3.1 shall be effected by the Borrower no later than 10:00
a.m., New York City time, on the Business Day immediately following the date of
such request or such Specified Event (as the case may be).
Section 3.2. Option to Enter Into Swap Transaction. Upon the occurrence of
any Specified Event, the Agent shall have the right, at its option, to enter
into with the Borrower, or cause one or more other Persons to enter into with
the Borrower, one or more interest rate swap transactions under which the
Borrower shall receive a floating rate of interest in exchange for the payment
by the Borrower of a fixed rate of interest (such one or more interest rate swap
transactions are herein referred to as the "Swap Transaction", and such one or
more Persons, including the Agent, which shall so enter into the Swap
Transaction with the Borrower are herein referred to as the "Swap
Counterparty"). The Swap Transaction shall have a varying notional balance equal
to the Calculated Swap Amortizing Balance as of the effective date of the Swap
Transaction and shall otherwise be on such terms and conditions which shall be
acceptable to the Agent. The Agent shall have the right to withdraw any and all
amounts on deposit in the Sinking Fund Account and/or Collection Account in
order to satisfy the Borrower's obligations under the Swap Transaction (the
"Swap Obligations"). The Borrower hereby grants the Agent an irrevocable
power-of-attorney to execute, deliver and/or file, on the Borrower's behalf, (i)
all documents and instruments which may be necessary or appropriate to effect
the Swap Transaction and grant the Swap Counterparty a perfected security
interest in the Sinking Fund Account and the proceeds thereof (such documents
and instruments are herein referred to as the "Swap Documents") and (ii) all
amendments and supplements to the Transaction Documents which shall be necessary
or appropriate to effect or reflect the transactions contemplated by the Swap
Documents.
Section 3.3. Sinking Fund Collateral. As security for the Obligations, Swap
Obligations and Secured Obligations, the Borrower hereby pledges, assigns and
transfers to the Agent, for the benefit of the Secured Parties, and hereby
grants to the Agent, for the benefit of the Secured Parties, a continuing first
priority security interest in and lien on, all the Borrower's right, title and
interest in the following, whether now or hereafter existing: (a) the Sinking
Fund Account, (b) all funds therein, (c) all investments made with the funds
therein and all distributions thereon, and (d) all proceeds of any of the
foregoing (all of the foregoing in clauses (a)-(d), collectively, the "Sinking
Fund Collateral"). Such security interest and lien shall secure the Obligations,
Swap Obligations and Secured Obligations. The Borrower hereby agrees that the
Agent, for the benefit of the Secured Parties, has sole dominion and control
over the Sinking Fund Collateral.
Section 3.4. Priority. The Borrower continuously represents and warrants to
the Agent and the Secured Parties that the Agent, for the benefit of the Secured
Parties, has a first priority perfected security interest in the Sinking Fund
Collateral.
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Section 3.5. Securities Account Agreement. The Bank shall execute and
deliver to the Agent a Securities Account Agreement in the form of Exhibit A
hereto on the date hereof.
ARTICLE 4
PROVISIONS CONCERNING SINKING FUND COLLATERAL
Section 4.1. Further Assurances. The Borrower agrees that at any time and
from time to time, at the expense of the Borrower, the Borrower will promptly
execute and deliver all further instruments and documents, and take all further
action, that may be necessary or that the Agent may reasonably request, in order
to perfect and protect any security interest granted or purported to be granted
hereby or to enable the Agent to exercise and enforce its rights and remedies
hereunder with respect to any of the Sinking Fund Collateral.
Section 4.2. Payment of Taxes, Claims. The Borrower shall pay promptly when
due all taxes, assessments and governmental charges or levies imposed upon, and
all claims against, the Sinking Fund Collateral.
Section 4.3. Transfers and Other Liens, Additional Collateral. The Borrower
agrees that it will not (i) sell or otherwise dispose of, or grant any option or
warrant with respect to, any of the Sinking Fund Collateral without the prior
written consent of the Agent or (ii) create or permit to exist any lien upon or
with respect to any of the Sinking Fund Collateral (other than in favor of the
Agent, for the benefit of the Secured Parties).
ARTICLE 5
THE AGENT, CALCULATION AGENT AND PRICING AGENT
Section 5.1. Indemnification. The Borrower shall indemnify and hold the
Agent, the Bank, each Pricing Agent, each Secured Party and their respective
directors, officers, employees and agents harmless against, any loss, liability
or expense (including the costs and expenses of defending against any claim of
liability) arising out of or in connection with this Agreement or any action or
inaction of any such Person hereunder, except such loss, liability or expense of
any such Person which shall result from its own gross negligence, bad faith or
willful misconduct. The obligation of the Borrower under this section shall
survive the termination of this Agreement.
Section 5.2. Compensation and Reimbursement. The Borrower agrees (a) to pay
to the Bank, from time to time, for all services rendered by the Bank hereunder,
such fees and expenses as are separately agreed to by the Borrower and the Bank
and (b) to reimburse the Bank upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Bank in accordance with any
provision of, or carrying out its duties and obligations under, this Agreement
(including the reasonable compensation and fees and the expenses and
disbursements of its agents, independent certified public accountants and
independent counsel directly related to
11
such duties and obligations) except any expense, disbursement or advances as may
be attributable to the gross negligence, bad faith or willful misconduct of the
Bank.
ARTICLE 6
REMEDIES UPON SPECIFIED EVENT
Section 6.1. Remedies upon a Specified Event.
(a) If a Specified Event has occurred and is continuing, the Agent and
the Secured Parties shall have all the rights and remedies provided for herein
or otherwise available to it, all rights and remedies of a secured party on
default under the New York Uniform Commercial Code (whether or not it applies to
the Sinking Fund Collateral), which rights and remedies shall be exercised, at
the direction of the Agent.
(b) If a Specified Event has occurred and is continuing, the Sinking
Fund Account and all cash proceeds thereof shall be applied in whole or in part
by the Bank, in the manner directed in writing by the Agent (in its sole
discretion): (i) against, or to fulfill, all or any part of the Obligations,
Swap Obligations and/or Secured Obligations and/or (ii) to purchase Specified
Rate Caps or to the extent the Sinking Fund is insufficient to purchase
Specified Rate Caps, to purchase such interest rate caps as are acceptable to
the Agent, under the circumstances, to hedge to the extent possible the interest
rate exposure of the Lender under the RLSA or to establish a partial Overall
Hedge Position.
Section 6.2. No Remedy Exclusive. No right or remedy herein conferred upon
or reserved to the Agent or any Secured Party is intended to be exclusive of any
other right or remedy, and every right or remedy shall, to the extent permitted
by law, be cumulative and in addition to every other right and remedy given
hereunder or now or hereafter existing at law, in equity or otherwise, and each
and every right, power and remedy whether specifically herein given or otherwise
existing may be exercised from time to time and as often and in such order as
may be deemed expedient by the Agent or such Secured Party.
ARTICLE 7
CALCULATION AGENT; PRICING AGENT
Section 7.1. Determinations, Etc. By Agent. All determinations,
calculations and selections made by the Agent in good faith pursuant hereto
shall be binding on all parties hereto, absent manifest error. Neither the Agent
nor any of its directors, officers or employees shall be liable for any action
taken or determination, calculation or selection made, by the Agent hereunder,
except that the Agent shall be responsible for its gross negligence, bad faith
or willful misconduct.
Section 7.2. Determinations, Etc. By Pricing Agent. All determinations,
calculations and selections made by any Pricing Agent in good faith pursuant
hereto shall be binding on all
12
parties hereto, absent manifest error. Neither any Pricing Agent nor any of its
directors, officers or employees shall be liable for any action taken or
determination, calculation or selection made, by such Pricing Agent hereunder,
except that such Pricing Agent shall be responsible for its gross negligence,
bad faith or willful misconduct.
ARTICLE 8
THE BANK
Section 8.1. Rights, Duties, etc. The acceptance by the Bank of its duties
hereunder is subject to the following terms and conditions which the parties to
this Agreement hereby agree shall govern and control with respect to the Bank's
rights, duties, liabilities and immunities hereunder:
(a) The Bank shall be protected in acting or refraining from acting
upon any written notice, certificate, instruction, request or other paper or
document, as to the due execution thereof and the validity and effectiveness of
the provisions thereof and as to the truth of any information therein contained,
which the Bank in good faith believes to be genuine;
(b) The Bank may consult with and obtain advice from counsel of its
own choice in the event of any dispute or question as to the construction of any
provision hereof or otherwise in connection with its duties hereunder, and any
action taken or omitted by the Bank in reasonable reliance upon such opinion
shall be full justification and protection to it;
(c) The Bank shall not be liable for any error of judgment or for any
act done or step taken or omitted, except in the case of its gross negligence,
willful misconduct or bad faith;
(d) The Bank shall have no duties hereunder except those which are
expressly set forth herein and in any modification or amendment hereof;
provided, however, that no such modification or amendment hereof shall affect
its duties unless it shall have given its prior written consent thereto;
(e) The Bank may execute or perform any duties hereunder (other than
the holding of the Sinking Fund Account) either directly or through agents or
attorneys;
(f) The Bank may engage or be interested in any financial or other
transactions with any party hereto and may act on, or as depositary, trustee or
agent for, any committee or body of holders of obligations of such Persons as
freely as if it were not Bank hereunder; and
(g) The Bank shall not be obligated to take any action which in its
reasonable judgment would cause it to incur any expense or liability hereunder
unless it has been furnished with an indemnity from the Borrower with respect
thereto which is reasonably satisfactory to the Bank.
13
Section 8.2. No Implied Covenants. No implied covenants or obligations on
the part of the Bank shall be incorporated into this Agreement. If in one or
more instances the Bank takes any action or assumes any responsibility not
specifically delegated to it hereunder, neither the taking of such action nor
the assumption of such responsibility shall be deemed to be an express or
implied undertaking on the part of the Bank that it will take the same or
similar action or assume the same or similar responsibility in any other
instance.
Section 8.3. Investigation. The Bank shall not be bound to make any
investigation into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, consent, order,
approval, bond or other paper or document, unless requested in writing to do so
by the Borrower, Servicer or Agent; provided, however, that if the payment
within a reasonable time to the Bank of the costs, expenses or liabilities
likely to be incurred by it in the making of such investigation is, in the
opinion of the Bank, not reasonably assured to the Bank pursuant to the terms of
this Agreement, the Bank may require reasonable indemnity from the Borrower
against such expense or liability as a condition to taking any such action. The
reasonable expense of every such examination shall be paid by the Borrower or,
if paid by the Bank, shall be repaid by the Borrower upon demand from the
Borrower's own funds.
ARTICLE 9
MISCELLANEOUS
Section 9.1. Waiver. Any waiver by the Agent of any provision of this
Agreement or any right, remedy or option hereunder shall only prevent and estop
the Agent from thereafter enforcing such provision, right, remedy or option if
such waiver is given in writing and only as to the specific instance and for the
specific purpose for which such waiver was given. The failure or refusal of the
Agent to insist in any one or more instances, or in a course of dealing, upon
the strict performance of any of the terms or provisions of this Agreement by
any party hereto or the martial exercise of any right, remedy or option
hereunder shall not be construed as a waiver or relinquishment of any such term
or provision, but the same shall continue in full force and effect.
Section 9.2. Amendments; Waivers. No amendment, modification, waiver or
supplement to this Agreement or any provision of this Agreement shall in any
event be effective unless the same shall have been made or consented to in
writing by each of the parties hereto.
Section 9.3. Severability. In the event that any provision of this
Agreement or the application thereof to any party hereto or to any circumstance
or in any jurisdiction governing this Agreement shall, to any extent, be invalid
or unenforceable under any applicable statute, regulation or rule of law, then
such provision shall be deemed inoperative to the extent that it is invalid or
unenforceable and the remainder of this Agreement, and the application of any
such invalid or unenforceable provision to the parties, jurisdictions or
circumstances other than to whom or to which it is held invalid or
unenforceable, shall not be affected thereby nor shall the same affect the
validity or enforceability of any other provision of this Agreement. The parties
hereto further agree that the holding by any court of competent jurisdiction
that any remedy pursued by the Agent or any Secured Party hereunder is
unavailable or unenforceable shall not
14
affect in any way the ability of the Agent or such Secured Party to pursue any
other remedy available to it or them.
Section 9.4. Notices. Unless otherwise specified herein, all notices,
demands, certificates, requests and other communications hereunder shall be in
writing and shall be effective upon receipt, or in the case of delivery by
facsimile copy, when electronic communication of receipt is obtained, in all
cases addressed to the recipient as follows:
If to the Borrower: FCC Acceptance Corp.
00000 Xxxxxxxxx Xxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Attention: Xxx Xxxxxxxx
Telecopier No.: (000) 000-0000
If to the Servicer: First Consumer Credit, Inc.
00000 Xxxxxxxxx Xxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Attention: Xxx Xxxxxxxx
Telecopier No.: (000) 000-0000
If to the Agent: DZ Bank AG Deutsche Zentral-Genossenschaftsbank, Frankfurt
Am Main
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Asset-Backed Finance Group
Telecopier No.: (000) 000-0000
If to the Bank: U.S. Bank National Association
000 Xxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxx Xxxxxx
Telecopier No.: (000) 000-0000
Section 9.5. Assignments. This Agreement shall be a continuing obligation
of the parties hereto and shall (i) be binding upon the parties and their
respective successors and permitted assigns, and (ii) inure to the benefit of
and be enforceable by each Secured Party and the Agent, and by their respective
successors, transferees and assigns. No party may assign this Agreement, or
delegate any of its duties hereunder, without the prior written consent of the
Agent; provided, however, that the Agent and each Secured Party may assign its
rights and obligations hereunder to any transferee (or its designee) of its
interest in the RLSA, without the consent of any other party.
Section 9.6. Trial by Jury Waived. Each of the parties hereto waives, to
the fullest extent permitted by law, any right it may have to a trial by jury in
respect of any litigation arising directly or indirectly out of, under or in
connection with this Agreement or any of the transactions contemplated
hereunder. Each of the parties hereto (a) certifies that no representative,
agent or attorney of any other party has represented, expressly or otherwise,
that
15
such other party would not, in the event of litigation, seek to enforce the
foregoing waiver and (b) acknowledges that it has been induced to enter into
this Agreement by, among other things, this waiver.
Section 9.7. GOVERNING LAW. THIS AGREEMENT SHALL, IN ACCORDANCE WITH
SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK, BE
GOVERNED BY THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO ANY CONFLICTS
OF LAW PRINCIPLES THEREOF THAT WOULD CALL FOR THE APPLICATION OF THE LAWS OF ANY
OTHER JURISDICTION.
Section 9.8. Consents to Jurisdiction. Each of the parties hereto
irrevocably submits to the jurisdiction of the United States District Court for
the Southern District of New York, any court in the State of New York located in
the City and County of New York, and any appellate court from any thereof, in
any action, suit or proceeding brought against it and related to or in
connection with this Agreement or the transactions contemplated hereunder or for
recognition or enforcement of any judgment and each of the parties hereto
irrevocably and unconditionally agrees that all claims in respect of any such
suit or action or proceeding may be heard or determined in such New York State
court or, to the extent permitted by law, in such federal court. Each of the
parties hereto agrees that a final judgment in any such action, suit or
proceeding shall be conclusive and may be enforced in other jurisdictions by
suit on the judgment or in any other manner provided by law. To the extent
permitted by applicable law, each of the parties hereby waives and agrees not to
assert by way of motion, as a defense or otherwise in any such suit, action or
proceeding, any claim that it is not personally subject to the jurisdiction of
such courts, that the suit, action or proceeding is brought in an inconvenient
forum, that the venue of the suit, action or proceeding is improper or that this
Agreement or the subject matter hereof may not be litigated in or by such
courts. The Borrower hereby irrevocably appoints and designates the New York
State Secretary of State, as its true and lawful attorney and daily authorized
agent for acceptance of service of legal process. The Borrower agrees that
service of such process upon such person shall constitute personal service of
such process upon it. Nothing contained in this Agreement shall limit or affect
the rights of any party hereto to serve process in any other manner permitted by
law or to start legal proceedings relating to this Agreement against the
Borrower or its property in the courts of any jurisdiction.
Section 9.9. Counterparts. This Agreement may be executed in two or more
counterparts by the parties hereto, and each such counterpart shall be
considered an original and all such counterparts shall constitute one and the
same instrument. Delivery of an executed counterpart of a signature page to this
Agreement by facsimile shall be effective as delivery of a manually executed
counterpart of this Agreement.
Section 9.10. Headings. The headings of sections and paragraphs contained
in this Agreement are provided for convenience only. They form no part of this
Agreement and shall not affect its construction or interpretation.
Section 9.11. Termination. This Agreement shall terminate (i) at any time
upon at least one Business Day's prior notice from the Agent to the other
parties hereto, and (ii) automatically on the Collection Date. On the date
designated in such notice for such termination and provided
16
that Section 2.6 of this Agreement shall have been satisfied, or on the
Collection Date, this Agreement shall terminate, provided, however, that the
provisions of Section 5.1, Section 5.2 and Section 9.12 shall be continuing and
shall survive any termination of this Agreement.
Section 9.12. Non-Petition Covenant. The Bank hereby agrees that it will
not institute against, or join any other Person in instituting against, the
Borrower any proceedings of the type referred to in the definition of Bankruptcy
Event in the RLSA so long as any obligations of the Borrower under the RLSA
shall be outstanding or there shall not have elapsed one year and one day since
the last day on which any such obligations shall have been outstanding.
17
IN WITNESS WHEREOF, the parties hereto have executed this Agreement, as
amended and restated, as of the date set forth on the first page hereof.
FCC ACCEPTANCE CORP., as Borrower
By:
-------------------------------------
Name:
-------------------------------
Title:
------------------------------
FIRST CONSUMER CREDIT, INC., as Servicer
By:
-------------------------------------
Name:
-------------------------------
Title:
------------------------------
DZ BANK AG DEUTSCHE ZENTRAL-
GENOSSENSCHAFTSBANK, FRANKFURT AM
MAIN, as Agent
By:
-------------------------------------
Name:
-------------------------------
Title:
------------------------------
U.S. BANK National Association, as Bank
By:
-------------------------------------
Name:
-------------------------------
Title:
------------------------------
18
Exhibit A
Form of Securities Account Agreement
[See attached.]
A-1
