EXHIBIT 10.2
SECURITY AGREEMENT
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THIS AGREEMENT is made as of the 1st day of November, 2001,
BETWEEN:
AMERICREDIT ML TRUST, a Delaware Business Trust
(hereinafter referred to as the "Debtor"),
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XXXXXXX XXXXX MORTGAGE CAPITAL INC., a corporation
incorporated under the laws of the State of
Delaware (together with its successors and assigns,
the "Secured Party").
WHEREAS the Debtor has agreed to grant a security interest in and
collateral assignment of its rights in and to the Collateral to the Secured
Party in order to secure the payment and performance of its Obligations to the
Secured Party, the Noteholders and the Hedge Counterparties;
AND WHEREAS this is the Security Agreement contemplated pursuant to
Section 4.1.1(a) of the Credit Agreement;
NOW, THEREFORE, THIS AGREEMENT WITNESSES that in consideration of the
premises and the covenants and agreements herein contained, and for other good
and valuable consideration (the receipt and sufficiency of which are hereby
acknowledged), the parties hereto hereby agree as follows:
ARTICLE 1 - INTERPRETATION
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1.01 Interpretation
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In this Agreement, unless something in the subject matter or context
is inconsistent therewith:
"Agreement" means this agreement, as amended, supplemented and otherwise
modified from time to time in a written agreement between the Secured Party and
the Debtor.
"Collateral" has the meaning set forth in Section 2.01 of this Agreement.
"Credit Agreement" means the Credit Agreement made as of November 1, 2001 among
the Debtor, AmeriCredit Corp., AmeriCredit Financial Services, Inc., AmeriCredit
Funding Corp. VIII, Bank One, NA, as Paying Agent and the Secured Party, as the
same may be amended, supplemented or otherwise modified from time to time.
"Event of Default" has the meaning set forth in the Credit Agreement.
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"Majority Holders" means the holders of a majority of outstanding principal
amount of the Notes.
"Noteholder" or "Holder" means any holder of a Note issued under the Credit
Agreement.
"Uniform Commercial Code" or "UCC" means the Uniform Commercial Code, as now
enacted or as the same may from time to time be amended, re-enacted or replaced,
in the applicable jurisdiction.
The terms "general intangibles", "chattel paper", "accounts" and
"proceeds" whenever used herein have the meanings given to those terms in the
UCC.
Capitalized terms which are used but not otherwise defined herein and
which are defined in the Credit Agreement shall have the respective meanings
attributed to such terms in the Credit Agreement.
1.02 Sections and Headings
---------------------
The division of this Agreement into Articles and Sections and the
insertion of headings are for convenience of reference only and will not affect
the construction or interpretation of this Agreement. The terms "this
Agreement", "hereof", "hereunder" and similar expressions refer to this
Agreement and not to any particular Article, Section or other portion hereof and
include any supplement, amendment or other modification hereto. Unless something
in the subject matter or context is inconsistent therewith, reference herein to
Articles and Sections are to Articles and Sections of this Agreement.
1.03 Extended Meanings
-----------------
In this Agreement, words importing the singular number only include
the plural and vice versa, words importing any gender include all genders and
words importing persons include individuals, partnerships, associations, trusts,
unincorporated organizations and corporations.
ARTICLE 2 - GRANT OF SECURITY INTEREST
--------------------------------------
2.01 Security Interest
-----------------
As security for the payment and performance of the Note and all other
Obligations, the Debtor hereby grants, conveys, assigns, transfers and pledges
to the Secured Party (for the benefit of all Noteholders and the Hedge
Counterparties) a security interest, and collaterally assigns to the Secured
Party, all right, title and interest which the Debtor now has or may hereafter
have, be possessed of, be entitled to, or acquire, in, to and under the
following property (collectively, the "Collateral"):
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(a) the Collection Account, the Lockbox Account, the Reserve Fund Account,
the Derivative Supplement Account, all accounts relating thereto, and
all amounts and other property therein from time to time pursuant to
the Credit Agreement;
(b) all Contracts and the related Receivables identified in any Schedule
of Contracts delivered from time to time to the Secured Party pursuant
to the Credit Agreement, together with all Collections, Contract
Files, Related Security and Servicing Records relating thereto;
(c) all Contracts and the related Receivables identified in any Schedule
of Additional Contracts delivered from time to time to the Secured
Party pursuant to the Credit Agreement, together with all Collections,
Contract Files, Related Security and Servicing Records relating
thereto;
(d) any and all Hedging Agreements, Third Party Lender Assignments, Auto
Loan Purchase and Sale Agreements, Dealer Assignments and Dealer
Agreements;
(e) all general intangibles, chattel paper and accounts of the Debtor;
(f) all replacements of, substitutions for and increases, additions and
accessions to or distribution of any of the property described in this
Section 2.01; and
(g) all income, payments and proceeds of any of the foregoing property in
any form derived directly or indirectly from any dealing with such
property or that indemnifies or compensates for the loss of or damage
to such property;
provided that the said security interest and collateral assignment will not (i)
extend or apply to (A) any Contract or the related Receivable (or any
Collections, Contract Files, Related Security and Servicing Records relating
thereto) identified in any Schedule of Ineligible Contracts either (x)
substituted in accordance with the terms and conditions of the Credit Agreement
with Additional Contracts and the related Collateral identified in a Schedule of
Additional Contracts and/or (y) for which the Advances relating to such
Ineligible Contract and the related Collateral have been paid in accordance with
the terms and conditions of the Credit Agreement or (B) any Schedule of Removed
Contracts executed from time to time by the Secured Party and any Noteholders
pursuant to the Credit Agreement or (ii) render the Secured Party or the
Noteholders liable to observe or perform any term, covenant or condition of any
agreement, document or instrument to which the Debtor is a party or by which it
is bound and which forms part of the Collateral.
2.02 Attachment of Security Interest
-------------------------------
The Debtor acknowledges that value has been given and agrees that the security
interest granted hereby will attach when the Debtor signs this Agreement. The
Debtor represents and warrants that it has rights in, to and under the
Collateral and shall at all times have rights in, to and under the Collateral.
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2.03 Release
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Any item of Collateral released pursuant to the terms of this Agreement and the
Credit Agreement shall be evidenced by a UCC-3 and a payoff and release letter
executed and delivered by the Secured Party, in a form and substance
satisfactory to the parties hereto.
ARTICLE 3 - REMEDIES
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3.01 Remedies
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(1) On or after the occurrence of any Event of Default, (i) any or all of
the Obligations will at the option of the Secured Party (acting at the direction
of the Majority Holders) become immediately due and payable or be subject to
immediate performance, as the case may be, without presentment, demand,
diligence, suit, protest or notice of dishonor or nonpayment, all of which are
expressly waived; (ii) the obligation, if any, of the Noteholders to extend
further credit to the Debtor will cease; (iii) any or all security granted
hereby will, at the option of the Secured Party (acting at the direction of the
Majority Holders), become immediately enforceable; and (iv) in addition to any
right, power or remedy provided by the Credit Documents, law or equity, the
Secured Party (acting at the direction of the Majority Holders) will have the
rights, powers and remedies set out below, all of which rights, powers and
remedies will be enforceable successively, concurrently or both:
(a) the Secured Party may by appointment in writing appoint a receiver
(each herein referred to as the "Receiver") of the Collateral (which
term when used in this Section 3.01 will include the whole or any part
of the Collateral) and may remove or replace such Receiver from time
to time or may institute proceedings in any court of competent
jurisdiction for the appointment of a Receiver of the Collateral or
the Debtor; and the term "Secured Party" when used in this Section
3.01 will include any Receiver so appointed and the agents, officers
and employees of such Receiver; and neither the Secured Party nor any
Noteholder will be in any way responsible for any misconduct or
negligence of any such Receiver;
(b) the Secured Party may take possession of the Collateral and require
the Debtor to assemble the Collateral and deliver or make the
Collateral available to the Secured Party at such place or places as
may be specified by the Secured Party;
(c) the Secured Party may take such steps as it considers desirable to
maintain, preserve or protect the Collateral;
(d) the Secured Party may enforce any rights of the Debtor in respect of
the Collateral by any manner permitted by law;
(e) the Secured Party may hold, sell, lease or otherwise dispose of the
Collateral at public auction, by private tender, by private sale or
otherwise either for cash or upon credit upon such terms and
conditions as the Secured Party may determine
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and without notice to the Debtor unless required by law in
satisfaction of any or all of the Obligations;
(f) the Secured Party may accept the Collateral in satisfaction of the
Obligations upon notice to the Debtor of its intention to do so in the
manner required by law;
(g) the Secured Party and/or its agents may enter upon all or any of the
premises occupied by the Debtor or the Custodian in order to seize and
remove any Collateral located in or on such premises;
(h) the Secured Party, the Hedge Counterparties and the Noteholders may
charge on their own behalf and pay to others all reasonable amounts
for expenses incurred and for services rendered in connection with the
exercise of the rights and remedies of the Secured Party, the Hedge
Counterparties and any Noteholder hereunder, including, without
limiting the generality of the foregoing, reasonable legal, Receiver
and accounting fees and expenses, and in every such case the amounts
so paid together with all costs, charges and expenses incurred in
connection therewith, including interest thereon at such rate as the
Secured Party deems reasonable, will be added to and form part of the
Obligations hereby secured; and
(i) the Secured Party or any Noteholder may discharge any claim, lien,
mortgage, charge, security interest, encumbrance or any rights of
others that may exist or be threatened against the Collateral, and in
every such case the amounts so paid together with costs, charges and
expenses incurred in connection therewith will be added to the
Obligations hereby secured.
(2) The Secured Party (acting at the direction of the Majority Holders)
may (i) grant extensions of time, (ii) take and perfect or abstain from taking
and perfecting security, (iii) give up securities, (iv) accept compositions or
compromises, (v) grant releases and discharges, and (vi) release any part of the
Collateral or otherwise deal with the Debtor, debtors of the Debtor, sureties
and others and with the Collateral and other security as the Secured Party
(acting at the direction of the Noteholders) sees fit without prejudice to the
liability of the Debtor to the Secured Party, the Hedge Counterparties and the
Noteholders or the Secured Party's, each Hedge Counterparty's or each
Noteholder's rights hereunder.
(3) None of the Secured Party, the Hedge Counterparties, the Noteholders
and their respective directors, officers, employees or agents will be liable or
responsible for any failure to seize, collect, realize, or obtain payment with
respect to the Collateral and none of them will be bound to institute
proceedings or to take other steps for the purpose of seizing, collecting,
realizing or obtaining possession or payment with respect to the Collateral or
for the purpose of preserving any rights of the Secured Party, the Hedge
Counterparties, the Noteholders, the Debtor or any other person, in respect of
the Collateral.
(4) The Secured Party (acting at the direction of the Majority Holders)
may apply any proceeds of realization of the Collateral to payment of expenses
in connection with the
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preservation and realization of the Collateral as above described and the
Secured Party (acting at the direction of the Majority Holders) shall apply any
balance of such proceeds to payment of the Obligations in such order as the
Secured Party sees fit. If there is any surplus remaining, the Secured Party
(acting at the direction of the Majority Holders) may pay it to any person
having a claim thereto in priority to the Debtor of whom the Secured Party has
knowledge and any balance remaining must be paid to the Debtor. If the
disposition of the Collateral fails to satisfy the Obligations secured by this
Agreement and the aforesaid expenses, the Debtor will be liable to pay any
deficiency to the Secured Party, the Hedge Counterparties and the Noteholders
forthwith on demand.
(5) If the Debtor or the Secured Party fails to perform or comply with any
of its agreements contained in the Credit Documents, the Majority Holders may
themselves perform and/or comply, or otherwise cause performance and/or
compliance, with such agreements. The expenses of any such Noteholders incurred
in connection with such performance and/or compliance, together with interest
thereon (at a rate per annum equal to the overdue rate set forth in Section 3.2
of the Credit Agreement), shall be payable by the Debtor to such Noteholders on
demand and shall constitute Obligations.
(6) All authorizations and agencies herein contained with respect to the
Collateral are irrevocable and are powers coupled with an interest.
(7) No failure on the part of the Secured Party, a Hedge Counterparty or a
Noteholder to exercise, and no delay in exercising, any right, remedy or power
under this Agreement shall operate as a waiver thereof, nor shall any single or
partial exercise by the Secured Party of any right, remedy or power hereunder
preclude any other or future exercise of any right, remedy or power. Each and
every right, remedy and power hereby granted to the Secured Party, a Hedge
Counterparty or a Noteholder or allowed the Secured Party, a Hedge Counterparty
or a Noteholder by law or other agreement shall be cumulative and not exclusive
of any other and may be exercised by the Secured Party (at the direction of the
Majority Holders) or a Noteholder from time to time.
ARTICLE 4 - GENERAL
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4.01 Benefit of the Agreement
------------------------
This Agreement will enure to the benefit of and be binding upon the
successors and permitted assigns of the parties hereto.
4.02 Notification of Account Debtors
-------------------------------
After the occurrence of an Event of Default, the Secured Party or a
Noteholder may give notice to any applicable Obligor to make all further
payments relating to the Collateral to the Secured Party (for the benefit of the
Noteholders and the Hedge Counterparties), and any payment or other proceeds of
Collateral received by the Debtor from any such Obligor after any such notice is
given by the Secured Party or a Noteholder must be held by the Debtor in trust
for the Secured Party (for the benefit of the Noteholders and the Hedge
Counterparties) and
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forthwith paid over to the Secured Party (for the benefit of the Noteholders and
the Hedge Counterparties).
4.03 Entire Agreement
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This Agreement has been entered into pursuant to the provisions of the
Credit Agreement and is subject to all of the terms and conditions thereof and,
if there is any conflict or inconsistency between the provisions of this
Agreement and the provisions of the Credit Agreement, any such conflict or
inconsistency shall be resolved to better assure the security interest and
collateral assignment granted hereunder. This Agreement cancels and supersedes
any prior understandings and agreements between the parties hereto with respect
thereto. There are no representations, warranties, terms, conditions,
undertakings or collateral agreements, express, implied or statutory, between
the Secured Party and the Debtor with respect to the subject matter hereof
except as expressly set forth herein or in the Credit Agreement.
4.04 Amendments and Waivers
----------------------
No amendment, supplement or other modification to this Agreement will
be valid or binding unless set forth in writing and duly executed by all of the
parties hereto. No waiver of any breach of or obligation under any provision of
this Agreement will be effective or binding unless made in writing and signed by
the party purporting to give the same and, unless otherwise provided in the
written waiver, will be limited to the specific breach or obligation waived for
the particular instance noted.
4.05 Assignment
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The rights of the Secured Party under this Agreement may be assigned
by the Secured Party without the consent of the Debtor. The Debtor may not
assign its rights, interests or obligations under this Agreement. The Secured
Party may, by an instrument delivered to the Debtor, declare that it is acting
as collateral agent for itself, all other Noteholders and the Hedge
Counterparties from time to time.
4.06 Severability
------------
If any provision of this Agreement is determined to be invalid or
unenforceable in whole or in part, such invalidity or unenforceability will
attach only to such provision or part thereof and the remaining part of such
provision and all other provisions hereof will continue in full force and
effect.
4.07 Notices
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Any demand, notice or other communication to be given in connection
with this Agreement must be given in writing and may be given by personal
delivery, by registered mail or by facsimile, addressed to the recipient as
follows:
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To the Debtor:
AmeriCredit ML Trust
c/o AmeriCredit Financial Services Inc.
000 Xxxxxx Xxxxxx
Xxxx Xxxxx, Xxxxx 00000
Attention: Xx. Xxxxxxx Xxxxxx
Facsimile No.: (000) 000-0000
To the Secured Party:
Xxxxxxx Xxxxx Mortgage Capital Inc.
0 Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxx and Xxxxxxx Xxxx
Facsimile No.: (000) 000-0000
with a copy to:
Xxxxxxx Xxxxx Mortgage Capital Inc.
000 Xxxxxx Xxxxxx
Xxxxxx Xxxx, Xxx Xxxxxx 000000
Attention: Operations
Facsimile No.: (000) 000-0000
or such other address, individual or facsimile number as may be designated by
notice given by either party to the other. The Secured Party, by written notice
to the Debtor, may designate that notices thenceforth shall be delivered to such
Noteholder(s) and Hedge Counterparties, and at such address(es) as shall be
contained in such written notice. Any demand, notice or other communication
given by personal delivery will be conclusively deemed to have been given on the
day of actual delivery thereof and, if given by registered mail, on the third
business day following the deposit thereof in the mail and, if given by
facsimile, on the day of transmittal thereof if given during the normal business
hours of the recipient and on the next business day during which such normal
business hours next occur if not given during such hours on any day. If the
party giving any demand, notice or other communication knows or ought reasonably
to know of any unusual delays with the postal system that might affect the
delivery of mail, any such demand, notice or other communication must not be
mailed, but must be given by personal delivery or by facsimile.
4.08 Additional Continuing Security
------------------------------
This Agreement and the security interest and collateral assignment
granted hereby are in addition to and not in substitution for any other security
now or hereafter held by the Secured Party for the benefit of the Noteholders
and the Hedge Counterparties. This Agreement is a security agreement (as defined
in the UCC) and the security interest granted hereunder is a continuing security
that will remain in full force and effect until discharged by the Secured Party.
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4.09 Further Assurances
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The Debtor from time to time, at its expense, shall promptly do,
execute and deliver, or cause to be done, executed and delivered, all such
financing statements, further assignments, instruments, documents, acts, matters
and things as may be reasonably requested by the Secured Party for the purpose
of giving effect to this Agreement and the other Credit Documents or for the
purpose of establishing compliance with the representations, warranties and
covenants herein contained and contained in the other Credit Documents and the
rights, powers and remedies herein and therein granted.
4.10 Power of Attorney
-----------------
The Debtor hereby irrevocably constitutes and appoints the
Noteholders, the Secured Party and any authorized person of the Secured Party,
with full power of substitution, as the true and lawful attorney-in-fact of the
Debtor, with full irrevocable power and authority in the place and stead of the
Debtor or in its own name and in the Secured Party's or the Noteholders' sole
discretion (in each case, acting at the direction of the Majority Holders), upon
the occurrence of an Event of Default, to, from time to time, do, make and
execute all such statements, assignments, instruments, documents, acts, matters
or things with the right to use the name of the Debtor whenever and wherever the
officer may deem necessary or expedient and from time to time to exercise all
rights and powers and to perform all acts in respect to the Collateral in
accordance with this Agreement. The Debtor hereby ratifies all that said
attorneys shall do or cause to be done by virtue hereof. This power of attorney
is a power coupled with an interest and shall be irrevocable. The Debtor also
authorizes the Secured Party (acting at the direction of the Majority Holders)
and any authorized person of the Secured Party, at any time and from time to
time, to execute in connection with any sale of the Collateral any endorsements,
assignments or other instruments of conveyance or transfer with respect to the
Collateral. None of the Hedge Counterparties, the Noteholders and the Secured
Party (except as instructed by the Majority Holders) shall be under any duty to
exercise any such powers and none of the Secured Party and any of their
respective officers, directors, employees or agents shall be responsible to the
Debtor for any failure to act.
4.11 Discharge
---------
The Debtor will not be discharged from any of the Obligations or from
this Agreement except by a release or discharge signed in writing by the
Secured Party.
4.12 Governing Law
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This Agreement will be governed by and construed in accordance with
the laws of the State of New York (without reference to its conflict of
laws principles, except for Section 5-1401 of the New York General Obligations
Law) and the applicable federal laws of the United States of America.
4.13 Executed Copy
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The Debtor acknowledges receipt of a fully executed copy of this
Agreement.
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4.14 Counterparts
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This Agreement may be executed in one or more counterparts each of
which when executed shall be deemed to be an original and all of which when
taken together shall constitute one and the same agreement.
4.15 SUBMISSION TO JURISDICTION; WAIVERS
-----------------------------------
EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY:
(1) SUBMITS ITSELF AND ITS PROPERTY TO THE NON-EXCLUSIVE GENERAL
JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK, THE FEDERAL COURTS OF THE
UNITED STATES OF AMERICA FOR THE SOUTHERN DISTRICT OF NEW YORK AND APPELLATE
COURTS FROM ANY THEREOF;
(2) CONSENTS THAT ANY ACTION OR PROCEEDING RELATING TO THE TRANSACTIONS
CONTEMPLATED BY OR ARISING FROM, OR FOR RECOGNITION OR ENFORCEMENT OF ANY
JUDGMENT IN RESPECT OF, THE CREDIT DOCUMENTS MAY BE BROUGHT IN SUCH COURTS;
(3) WAIVES ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE VENUE OF
ANY SUCH ACTION OR PROCEEDING IN ANY SUCH COURT OR THAT SUCH ACTION OR
PROCEEDING WAS BROUGHT IN AN INCONVENIENT COURT AND AGREES NOT TO PLEAD OR CLAIM
THE SAME;
(4) AGREES THAT ANY SERVICE OF PROCESS IN ANY SUCH ACTION OR PROCEEDING
MAY BE EFFECTED BY MAILING A COPY THEREOF BY REGISTERED OR CERTIFIED MAIL (OR
ANY SUBSTANTIALLY SIMILAR FORM OF MAIL), POSTAGE PREPAID, TO ITS ADDRESS SET
FORTH HEREIN OR AT SUCH OTHER ADDRESS OF WHICH EACH OF THE OTHER PARTIES HERETO
SHALL HAVE BEEN NOTIFIED IN ACCORDANCE WITH THE TERMS AND CONDITIONS OF THIS
AGREEMENT; AND
(5) AGREES THAT NOTHING HEREIN SHALL AFFECT THE RIGHT TO EFFECT SERVICE OF
PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR SHALL LIMIT THE RIGHT TO XXX IN
ANY OTHER JURISIDICTION.
4.16 WAIVER OF JURY TRIAL
--------------------
EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO A TRIAL BY JURY IN ANY
LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT AND THE OTHER
CREDIT DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY OR ARISING
HEREUNDER OF THEREUNDER.
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4.17 NO RECOURSE
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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 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
of 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 related documents.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF the parties have duly executed this Agreement as of
the date first written above.
AMERICREDIT ML TRUST
By: Bankers Trust (Delaware), not in its
individual capacity, but solely as
Trustee
By: _______________________________________
Name:
Title:
XXXXXXX XXXXX MORTGAGE CAPITAL INC., as
Secured Party
By: _______________________________________
Name:
Title:
