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EXHIBIT 10.3
EXECUTION COPY
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RECEIVABLES FINANCING AGREEMENT
dated as of March 27, 1997
among
ACC LIQUIDITY LLC,
ACC CONSUMER FINANCE CORPORATION,
as Servicer,
ALPINE SECURITIZATION CORP.,
THE FINANCIAL INSTITUTIONS NAMED HEREIN,
as Lenders,
CREDIT SUISSE FIRST BOSTON, NEW YORK BRANCH,
as Agent,
and
NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION,
as Backup Servicer and Custodian
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TABLE OF CONTENTS
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RECEIVABLES FINANCING AGREEMENT.........................................................1
BACKGROUND..............................................................................1
ARTICLE I DEFINITIONS..............................................................1
SECTION 1.1 Defined Terms.........................................1
SECTION 1.2 Other Definitional Provisions........................34
ARTICLE II THE FACILITY, ADVANCE PROCEDURES AND NOTE...............................35
SECTION 2.1 Facility.............................................35
SECTION 2.2 Advance Procedures...................................35
SECTION 2.3 Funding..............................................35
SECTION 2.4 Representation and Warranty..........................36
SECTION 2.5 [Intentionally left blank]...........................36
SECTION 2.6 [Intentionally left blank]...........................36
SECTION 2.7 Voluntary Termination of Facility; Reduction of
Facility Limit.......................................36
SECTION 2.8 Note.................................................36
ARTICLE III YIELD, FEES, ETC........................................................37
SECTION 3.1 Yield Rates..........................................37
SECTION 3.2 Yield Payment Dates..................................37
SECTION 3.3 Yield Allocations; Selection of Fixed Periods, etc...38
SECTION 3.4 Fees.................................................38
SECTION 3.5 Computation of Yield and Fees........................38
ARTICLE IV REPAYMENTS AND PREPAYMENTS..............................................39
SECTION 4.1 Repayments and Prepayments...........................39
ARTICLE V PAYMENTS................................................................40
SECTION 5.1 Making of Payments...................................40
SECTION 5.2 Application of Certain Payments......................40
SECTION 5.3 Due Date Extension...................................40
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ARTICLE VI INCREASED COSTS, ETC....................................................40
SECTION 6.1 Increased Costs......................................40
SECTION 6.2 Additional Yield on Advances Bearing a
Eurodollar Rate......................................41
SECTION 6.3 Funding Losses.......................................42
ARTICLE VII CONDITIONS TO ADVANCES..................................................42
SECTION 7.1 Initial Advance......................................43
SECTION 7.2 All Advances.........................................43
ARTICLE VIII ADMINISTRATION AND SERVICING OF RECEIVABLES.............................44
SECTION 8.1 Duties of the Servicer...............................44
SECTION 8.2 Collection of Receivable Payments; Modification
and Amendment of Receivables; Lockbox Agreements.....46
SECTION 8.3 Realization Upon Receivables.........................48
SECTION 8.4 Insurance............................................50
SECTION 8.5 Maintenance of Security Interests in Financed
Vehicles.............................................50
SECTION 8.6 Covenants, Representations and Warranties of
Servicer.............................................51
SECTION 8.7 Purchase of Receivables Upon Breach of Covenant
or Representation and Warranty.......................55
SECTION 8.8 Total Servicing Fee; Payment of Certain Expenses
by Servicer..........................................55
SECTION 8.9 Servicer's Certificate...............................56
SECTION 8.10 Annual Statement as to Compliance; Notice of
Servicer Termination Event...........................56
SECTION 8.11 Annual Independent Accountants' Report...............57
SECTION 8.12 Access to Certain Documentation and Information
Regarding Receivables................................58
SECTION 8.13 Monthly Tape.........................................58
SECTION 8.14 Retention of Servicer................................59
SECTION 8.15 Fidelity Bond........................................59
SECTION 8.16 Insurance............................................60
SECTION 8.17 Accounts.............................................60
SECTION 8.18 Collections..........................................60
SECTION 8.19 Application of Collections...........................61
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ARTICLE IX GRANT OF SECURITY INTERESTS.............................................61
SECTION 9.1 Borrower's Grant of Security Interest................61
SECTION 9.2 Delivery of Collateral...............................63
SECTION 9.3 Borrower Remains Liable..............................63
SECTION 9.4 Covenants of the Borrower and Servicer Regarding
the Collateral.......................................64
SECTION 9.5 Release of Borrower Collateral.......................67
ARTICLE X REPRESENTATIONS AND WARRANTIES OF
THE BORROWER............................................................68
SECTION 10.1 Organization and Good Standing.......................68
SECTION 10.2 Due Qualification....................................69
SECTION 10.3 Power and Authority..................................69
SECTION 10.4 Security Interest; Binding Obligations...............69
SECTION 10.5 No Violation.........................................69
SECTION 10.6 No Proceedings.......................................70
SECTION 10.7 No Consents..........................................70
SECTION 10.8 Approvals............................................70
SECTION 10.9 Chief Executive Office...............................70
SECTION 10.10 Solvency.............................................70
SECTION 10.11 Tax Treatment........................................71
SECTION 10.12 Compliance With Laws.................................71
SECTION 10.13 Taxes................................................71
SECTION 10.14 Borrowing Base Certificate...........................71
SECTION 10.15 No Liens, Etc........................................71
SECTION 10.16 Purchase and Sale....................................72
SECTION 10.17 Securities Act of 1933; Investment Company Act
of 1940..............................................72
SECTION 10.18 Information True and Correct.........................72
SECTION 10.19 ERISA Compliance.....................................72
SECTION 10.20 No Material Adverse Effect; No Default...............72
SECTION 10.21 Financial or Other Condition.........................73
SECTION 10.22 Investment Company Status............................73
SECTION 10.23 No Shared Obligations................................73
SECTION 10.24 Representation and Warranties True and Correct.......73
SECTION 10.25 Eligible Receivables.................................73
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ARTICLE XI COVENANTS OF THE BORROWER...............................................74
SECTION 11.1 Protection of Security Interest of the Secured
Parties..............................................74
SECTION 11.2 Other Liens or Interests.............................75
SECTION 11.3 Costs and Expenses...................................75
SECTION 11.4 Reporting Requirements...............................75
SECTION 11.5 Tangible Net Worth...................................76
SECTION 11.6 Take-Out Securitization..............................77
SECTION 11.7 Warehouse Facility...................................77
ARTICLE XII THE SERVICER............................................................77
SECTION 12.1 Liability of Servicer; Indemnities...................77
SECTION 12.2 Merger or Consolidation of, or Assumption of the
Obligations of, the Servicer or Backup Servicer......79
SECTION 12.3 Limitation on Liability of Servicer, Backup Servicer
and Others...........................................80
SECTION 12.4 Delegation of Duties.................................81
SECTION 12.5 Servicer and Backup Servicer Not to Resign...........81
ARTICLE XIII SERVICER TERMINATION EVENTS.............................................82
SECTION 13.1 Servicer Termination Event...........................82
SECTION 13.2 Consequences of a Servicer Termination Event.........84
SECTION 13.3 Appointment of Successor Servicer....................85
ARTICLE XIV FACILITY TERMINATION EVENTS; EVENTS OF DEFAULT; THEIR EFFECT............86
SECTION 14.1 Facility Termination Events..........................86
SECTION 14.2 Effect of Facility Termination Event.................88
SECTION 14.3 Rights Upon Event of Default.........................88
ARTICLE XV THE AGENT...............................................................90
SECTION 15.1 Authorization and Action.............................90
SECTION 15.2 Exculpation..........................................90
SECTION 15.3 Agent and Affiliates.................................90
SECTION 15.4 Replacement Agent....................................91
ARTICLE XVI ASSIGNMENTS.............................................................91
SECTION 16.1 Restrictions on Assignments..........................91
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SECTION 16.2 Documentation........................................92
SECTION 16.3 Rights of Assignee...................................92
SECTION 16.4 Notice of Assignment.................................92
SECTION 16.5 Registration; Registration of Transfer and Exchange..92
SECTION 16.6 Mutilated, Destroyed, Lost and Stolen Notes..........93
SECTION 16.7 Persons Deemed Owners................................94
SECTION 16.8 Cancellation.........................................94
ARTICLE XVII INDEMNIFICATION.........................................................95
SECTION 17.1 General Indemnity of the Borrower....................95
SECTION 17.2 [Intentionally left blank]...........................97
SECTION 17.3 Sale.................................................97
ARTICLE XVIII MISCELLANEOUS...........................................................97
SECTION 18.1 No Waiver; Remedies..................................97
SECTION 18.2 Amendments, Waivers..................................98
SECTION 18.3 Notices, Etc.........................................98
SECTION 18.4 Costs, Expenses and Taxes............................98
SECTION 18.5 Binding Effect; Survival.............................99
SECTION 18.6 Captions and Cross References........................99
SECTION 18.7 Severability........................................100
SECTION 18.8 Governing Law.......................................100
SECTION 18.9 Counterparts........................................100
SECTION 18.10 WAIVER OF JURY TRIAL................................100
SECTION 18.11 Third Party Beneficiary.............................100
SECTION 18.12 No Proceedings......................................101
SECTION 18.13 ENTIRE AGREEMENT....................................101
SECTION 18.14 Preference Claims...................................101
SECTION 18.15 Subrogation.........................................102
ARTICLE XIX THE CUSTODIAN AS AGENT.................................................103
SECTION 19.1 Duties of the Agent.................................103
SECTION 19.2 Certain Matters Affecting the Agents................105
SECTION 19.3 Agent Not Liable for Notes or Receivables...........106
SECTION 19.4 Agent May Own Notes.................................107
SECTION 19.5 Agent's Indemnification.............................107
SECTION 19.6 Eligibility Requirements for Agent..................107
SECTION 19.7 Resignation or Removal of Agent.....................108
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SECTION 19.8 Successor Agent.....................................108
SECTION 19.9 Merger or Consolidation of Agent....................109
SECTION 19.10 Appointment of Co-Agent or Separate Agent...........109
SECTION 19.11 Agent May Enforce Claims Without Possession
of Notes............................................111
SECTION 19.12 Suit for Enforcement................................111
EXHIBITS
EXHIBIT A Form of Advance Request (Section 2.2)
EXHIBIT B Form of Note (Section 2.8)
EXHIBIT C [Intentionally Left Blank]
EXHIBIT D Form of Borrowing Base Certificate (Section 11.4)
EXHIBIT E Form of Servicer's Certificate (Section 8.9)
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RECEIVABLES FINANCING AGREEMENT
THIS RECEIVABLES FINANCING AGREEMENT is made and entered into as of March
27, 1997, among ACC LIQUIDITY LLC, a Delaware limited liability company having
its principal office at 00000 Xxxx Xxxxx Xxxxx, Xxxxx 000, Xxx Xxxxx, Xxxxxxxxxx
00000 (the "Borrower"), ACC CONSUMER FINANCE CORPORATION, a Delaware corporation
having its principal office at 00000 Xxxx Xxxxx Xxxxx, Xxxxx 000, Xxx Xxxxx,
Xxxxxxxxxx 00000 ("ACC"), as servicer, ALPINE SECURITIZATION CORP., a Delaware
corporation having its principal office c/o Credit Suisse First Boston, New York
Branch, Eleven Madison Avenue, New York, New York, 10010 ("Alpine"), THE
FINANCIAL INSTITUTIONS SET FORTH ON THE SIGNATURE PAGES HERETO and their
permitted assigns, as lenders (the "Banks" and, together with Alpine, the
"Lenders"), CREDIT SUISSE FIRST BOSTON, NEW YORK BRANCH ("CSFB"), as agent (the
"Agent") for the Investors, and NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION, a
national banking association, as backup servicer and custodian.
BACKGROUND
1. The Borrower desires that the Lenders extend financing to the
Borrower, on the terms and conditions set forth herein.
2. The Lenders are willing to provide such financing on the terms and
conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual agreements
herein contained, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1 Defined Terms. As used in this Agreement, the following terms
have the following meanings:
"ACC" has the meaning set forth in the Preamble.
"Accountants' Report" has the meaning set forth in Section 8.11(a).
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"Adjusted Term Index Rate" means, as of any date, the product of the Term
Index Rate and the Advance Rate.
"Adjusted Total Expense Percentage" means, as of any date, the sum of (x)
the Servicing Fee Rate plus (y) the Custodial Fee Rate plus (z) the product of
(1) the Premium Rate and (2) the Advance Rate.
"Adjusted Yield Rate" means, as of any date, the product of (a) the sum of
(i) if Alpine is the only Lender making and maintaining Advances, LIBOR plus
.55% or, otherwise, the weighted average of the rates used to determine Yield in
accordance with the definition thereof plus (ii) the ratio (expressed as a
percentage) of any amounts due and payable pursuant to Sections 6.1, 6.2 and 6.3
of this Agreement on the immediately preceding Distribution Date to the
outstanding principal amount of Advances on such Distribution Date and (b) the
Advance Rate.
"Advance" means any amount disbursed by any Lender to the Borrower under
this Agreement.
"Advance Rate" means 94%, or, upon written notice given by the Borrower to
the other parties under the Agreement, such other lower rate agreed to by the
Borrower and the Insurer from time to time; provided, however, that at any time
that the Servicer does not maintain Collateral Insurance with respect to all
Financed Vehicles, the "Advance Rate" shall mean the Advance Rate pursuant to
the preceding clause less 1.0%.
"Advance Request" has the meaning set forth in Section 2.2.
"Adverse Claim" means any claim of ownership or any lien, security
interest, title retention, trust or other charge or encumbrance, or other type
of preferential arrangement having the effect or purpose of creating a lien or
security interest, other than the security interest created under this
Agreement.
"Affected Person" has the meaning set forth in Section 6.1(a).
"Affiliate" of any Person means any other Person that (i) directly or
indirectly controls, is controlled by or is under common control with such
Person (excluding any trustee under, or any committee with responsibility for
administering, any employee benefit plan) or (ii) is an officer or director of
such Person. A Person shall be deemed to be "controlled by" any other Person if
such other Person possesses, directly or indirectly, power
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(a) to vote 5% or more of the securities (on a fully diluted
basis) having ordinary voting power for the election of
directors or managing partners; or
(b) to direct or cause the direction of the management and
policies of such Person whether by contract or
otherwise.
The word "Affiliated" has a correlative meaning.
"Agent" has the meaning set forth in the Preamble.
"Agent's Account" has the meaning set forth in Section 5.1.
"Aggregate Outstanding Principal Balance" means, with respect to any group
of Receivables as of any date, the sum of the outstanding Principal Balances of
all such Receivables as at the opening of business of such date.
"Agreement" shall mean this Receivables Financing Agreement, as it may be
amended, supplemented or otherwise modified from time to time.
"Allocations" has the meaning set forth in Section 3.3(a).
"Alpine" has the meaning set forth in the Preamble.
"Alternate Base Rate" means a fluctuating rate per annum as shall be in
effect from time to time, which rate shall be at all times equal to the highest
of:
(a) the rate of interest announced publicly by CSFB in New
York, New York, from time to time as CSFB's base
commercial lending rate;
(b) 1/2 of one percent above the latest three-week moving
average of secondary market morning offering rates in
the United States for three-month certificates of
deposit of major United States money market banks, such
three-week moving average being determined weekly on
each Monday (or, if such day is not a Business Day, on
the next succeeding Business Day) for the three-week
period ending on the previous Friday by CSFB on the
basis of such rates reported by certificate of deposit
dealers to and published by the Federal Reserve Bank
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of New York or, if such publication shall be suspended
or terminated, on the basis of quotations for such rates
received by CSFB from three New York certificate of
deposit dealers of recognized standing selected by CSFB,
in either case adjusted to the nearest 1/4 of one
percent or, if there is no nearest 1/4 of one percent,
to the next higher 1/4 of one percent; and
(c) the Federal Funds Rate.
"Amount Financed" means, with respect to a Receivable, the aggregate
amount advanced under such Receivable toward the purchase price of the Financed
Vehicle and related costs, including amounts advanced in respect of accessories,
insurance premiums, service and warranty contracts, other items customarily
financed as part of retail automobile installment sale contracts or promissory
notes, and related costs.
"Annual Percentage Rate" or "APR" means with respect to a Receivable, the
rate per annum of finance charges stated in such Receivable as the "annual
percentage rate" (within the meaning of the Federal Truth-in-Lending Act). If
after the Closing Date, the rate per annum with respect to a Receivable as of
the Closing Date is reduced as a result of (i) an insolvency proceeding
involving the relevant Obligor or (ii) pursuant to the Soldiers' and Sailors'
Civil Relief Act of 1940, the "Annual Percentage Rate" or "APR" shall refer to
such reduced rate.
"Backup Servicer" means Norwest Bank Minnesota, National Association,
together with its permitted successors and assigns.
"Bank Rate" for any Advance means a rate per annum equal to 0.75% per
annum above the Eurodollar Rate for each Advance or portion thereof; provided,
however, that in the case of
(i) any Fixed Period on or prior to the first day of which a Bank
shall have notified the Agent that the introduction of or any change in or
in the interpretation of any law or regulation makes it unlawful, or any
central bank or other governmental authority asserts that it is unlawful,
for such Bank to fund such Advance at the Bank Rate set forth above (and
such Bank shall not have subsequently notified the Agent that such
circumstances no longer exist),
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(ii) any Fixed Period of one to (and including) 29 days, in the
event the Eurodollar Rate is not reasonably available to the Agent for
such a Fixed Period,
(iii) any Fixed Period as to which the related Advance will not be
funded by issuance of commercial paper, as determined by the Agent (on
behalf of Alpine) by 12:00 noon (New York City time) on the third Business
Day preceding the first day of such Fixed Period, or
(iv) any Fixed Period for an Advance the principal amount of which
allocated to the Banks in the aggregate is less than $500,000,
the "Bank Rate" shall be a rate per annum equal to the Alternate Base Rate in
effect on the first day of such Fixed Period; provided, further, that the Agent
and the Borrower may agree in writing from time to time upon a different "Bank
Rate."
"Bank Rate Allocation" has the meaning set forth in Section 3.3(a).
"Bankruptcy Code" means the Bankruptcy Code, 11 U.S.C. 101, et seq., as
amended.
"Banks" has the meaning set forth in the Preamble.
"Base Fee Percentage" means, as of any date, the positive difference, if
any, of (i) the excess, if any, of (x) yield rate of weighted average life
AAA-rated, privately issued automobile asset-backed securities (A) issued by ACC
or an Affiliate thereof, or, if neither ACC nor any Affiliate have issued any
such securities in the calendar quarter immediately preceding such date, such
other issuer chosen by the Placement Agent in its sole discretion, (B)
guaranteed by the Insurer or a similar monoline insurance company and (C) with a
weighted average life similar to that of the Total Receivables Pool on such
date, as determined by the Placement Agent over (y) the Index Rate or other
appropriate index as determined by the Placement Agent on such date over (ii)
0.75%.
"Borrower" has the meaning set forth in the Preamble.
"Borrower Account Collateral" has the meaning set forth in Section 9.1(c).
"Borrower Assigned Agreements" has the meaning set forth in Section
9.1(b).
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"Borrowing Base" means the excess of (a) (i) on any day during a
Collection Period occurring prior to the Distribution Date occurring during such
Collection Period, an amount equal to (A) with respect to all Eligible
Receivables that were purchased by the Borrower prior to the first day of the
Collection Period immediately preceding such Distribution Date, an amount equal
to the aggregate outstanding Principal Balance of all such Eligible Receivables
as of the last day of the second Collection Period preceding such Distribution
Date, plus (B) with respect to all Eligible Receivables that were purchased by
the Borrower on or after the first day of the Collection Period immediately
preceding such Distribution Date, an amount equal to the outstanding Principal
Balance thereof as of the date such Receivables were purchased by the Borrower
or (ii) on any day during a Collection Period occurring on or after the
Distribution Date occurring during such Collection Period, an amount equal to
(A) with respect to all Eligible Receivables that were purchased by the Borrower
prior to the first day of such Collection Period, an amount equal to the
aggregate outstanding Principal Balance of all such Eligible Receivables as of
the last day of the Collection Period immediately preceding such Distribution
Date plus (B) with respect to all Eligible Receivables that were purchased by
the Borrower on or after the first day of such Collection Period, an amount
equal to the outstanding Principal Balance thereof as of the date such
Receivables were purchased by the Borrower over (b) the Required Holdback as of
such date.
"Borrowing Base Certificate" has the meaning set forth in Section 11.4.
"Borrowing Base Confirmation" has the meaning set forth in the Custodial
Agreement.
"Borrowing Base Deficiency" has the meaning set forth in Section 14.1(e).
"Borrower Collateral" has the meaning set forth in Section 9.1.
"Business Day" shall mean any day on which (a) commercial banks in New
York City are not authorized or required to be closed, and (b) in the case of a
Business Day which relates to a Eurodollar Advance, dealings are carried on in
the London interbank Eurodollar market.
"Change of Control" means, as of any date, fewer than two of the three
Founding Members shall be actively involved in the management of ACC. For the
purposes hereof, "Founding Members" shall mean each of Xxxx Xxxxxxx, Xxxxxx
Xxxxxxx and Xxxxx Xxxxxxx.
"Closing Date" means March 27, 1997.
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"Collateral" means the Transferred Receivables in the Total Receivables
Pool together with the Other Conveyed Property. "Collateral Insurance" means a
vendor's single interest or other collateral protection insurance policy with
respect to Financed Vehicles, which policy by its terms insures against physical
damage in the event any Obligor fails to maintain physical damage insurance with
respect to the related Finance Vehicle.
"Collateral Account" means the account designated as the Collateral
Account in, and which is established and maintained pursuant to, Section
8.17(c).
"Collateral Receipt" has the meaning set forth in the Custodial Agreement.
"Collected Funds" means, with respect to any Determination Date, the
amount of funds in the Collection Account representing collections on the Total
Receivables Pool during the related Collection Period, including all Liquidation
Proceeds collected during the related Collection Period (but excluding any
Purchase Amounts).
"Collection Account" means the account designated as the Collection
Account in, and which is established and maintained pursuant to, Section
8.17(a).
"Collection Period" means, with respect to a Determination Date or a
Distribution Date, the calendar month preceding the month in which such
Determination Date or Distribution Date occurs (such calendar month being
referred to as the "related" Collection Period with respect to such
Determination Date or Distribution Date) or in the case of the initial
Distribution Date and Determination Date, the period commencing at the opening
of business on the Closing Date and ending at the end of the calendar month
following the calendar month in which the Closing Date occurs. Any amount stated
"as of the close of business of the last day of a Collection Period" shall give
effect to the following calculations as determined as of the end of the day on
such last day: (i) all applications of collections, and (ii) all distributions.
"Collection Records" means all manually prepared or computer generated
records relating to collection efforts or payment histories with respect to the
Transferred Receivables.
"Commercial Paper Rate" for Advances means, to the extent Alpine funds
such Advances by issuing commercial paper, the sum of (i) the weighted average
of the rates at which commercial paper notes of Alpine issued to fund such
Advances may be sold by any placement agent or commercial paper dealer selected
by the Agent on behalf of
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Alpine, as agreed in good faith between each such agent or dealer and the
Agent; provided if the rate (or rates) as agreed between any such agent or
dealer and the Agent for any Advance is a discount rate (or rates), then such
rate shall be the rate (or if more than one rate, the weighted average of the
rates) resulting from converting such discount rate (or rates) to an
interest-bearing equivalent rate per annum plus (ii) any and all commissions of
placement agents and commercial paper dealers in respect of commercial paper
issued to fund the making or maintenance of any Advance plus (iii) any and all
reasonable costs and expenses of any issuing and paying agent or other Person
responsible for the administration of Alpine's commercial paper program in
connection with the preparation, completion, issuance, delivery or payment of
commercial paper issued to fund the making or maintenance of any Advance.
"Computer Tape or Listing" means the computer tape or listing generated on
behalf of the Borrower which provides information relating to the Receivables in
the Total Receivables Pool and which was used by the Borrower and ACC in
selecting the Transferred Receivables conveyed to the Borrower under the
Purchase and Sale Agreement.
"Concentration Limit" means, as of any date, the greater of (i) 2.5% of
the Aggregate Outstanding Principal Balance of all Eligible Receivables on such
date and (ii) $300,000.
"Contingent Liability" means any agreement, undertaking or arrangement by
which any Person guarantees, endorses or otherwise becomes or is contingently
liable upon (by direct or indirect agreement, contingent or otherwise, to
provide funds for payment, to supply funds to, or otherwise to invest in, a
debtor, or otherwise to assure a creditor against loss) the indebtedness,
obligation or any other liability of any other Person (other than by
endorsements of instruments in the course of collection), or guarantees the
payment of dividends or other distributions upon the shares of any other Person.
The amount of any Person's obligation under any Contingent Liability shall
(subject to any limitation set forth therein) be deemed to be the outstanding
principal amount (or maximum outstanding principal amount, if larger) of the
debt, obligation or other liability guaranteed thereby.
"Controlling Party" means:
(a) prior to the Remarketing Date:
(i) so long as no Insurer Default or Secondary Rating Event
shall have occurred and be continuing, the Insurer;
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(ii) if an Insurer Default (other than an Insurer Default
described in clause (a) or clause (d) of the definition
thereof) or Secondary Rating Event shall have occurred
and be continuing, the Insurer and the Agent acting
unanimously; or
(iii) if an Insurer Default described in clause (a) or clause
(d) of the definition thereof shall have occurred and
shall have continued for five (5) Business Days after
its occurrence, the Agent; and
(b) after the Remarketing Date:
(i) so long as no Insurer Default shall have occurred and be
continuing, the Insurer; or
(ii) if an Insurer Default shall have occurred and be
continuing, the Agent.
"Coupon Rate" means, with respect to any Receivable, the rate of interest
borne by such Receivable.
"CP Allocation" has the meaning set forth in Section 3.3(a).
"Cram Down Loss" means, with respect to a Receivable, if a court of
appropriate jurisdiction in an insolvency proceeding shall have issued an order
reducing the amount owed on such Receivable or otherwise modifying or
restructuring the scheduled payments to be made on such Receivable, an amount
equal to the excess of the principal balance of such Receivable immediately
prior to such order over the principal balance of such Receivable as so reduced
or the net present value (using as the discount rate the higher of the APR on
such Receivable or the rate of interest, if any, specified by the court in such
order) of the scheduled payments as so modified or restructured. A "Cram Down
Loss" shall be deemed to have occurred on the date of issuance of such order.
"CSFB" has the meaning set forth in the Preamble.
"Custodial Agreement" means the Custodial Agreement dated March 27, 1997
among the Custodian, the Insurer, the Agent, the Borrower and the Servicer,
including all amendments, modifications and supplements thereto.
"Custodial Fee Rate" means 0.065%.
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"Custodian" means Norwest Bank Minnesota, National Association and any
successors and assigns in its capacity as custodian under the Custodial
Agreement.
"Dealer" means a seller of new or used automobiles or light trucks that
originated one or more of the Receivables in the Total Receivables Pool and sold
the respective Receivable, directly or indirectly, to OFL-A or ACC.
"Dealer Agreement" means an agreement by and among ACC (or American Credit
Corporation, as the case may be), OFL-A and a Dealer relating to the sale of
retail installment sale contracts and installment notes to OFL-A and all
documents and instruments relating thereto.
"Dealer Assignment" means, with respect to a Transferred Receivable, the
executed assignment executed by a Dealer conveying such Receivable to OFL-A.
"Dealer Underwriting Guides" means, collectively, (i) the underwriting
manuals used by ACC in the purchase of Receivables and (ii) the Consumer
Underwriting Guide used by ACC d/b/a Accent Financial Services, in each case as
amended from time to time.
"Default Rate" has the meaning set forth in Section 3.l(c).
"Defaulted Receivable" means, with respect to any Distribution Date, a
Receivable with respect to which: (i) ninety percent or more of a Scheduled
Payment is 60 or more days delinquent, (ii) the Servicer has repossessed the
related Financed Vehicle (and any applicable redemption period has expired),
(iii) such Receivable is in default and the Servicer has determined in good
faith that payments thereunder are not likely to be resumed or (iv) the Obligor
has been identified on the records of the Servicer as being the subject of a
current bankruptcy proceeding.
"Deficiency Amount" means, as of any date, an amount equal to the product
of (x) the Deficiency Percentage, (y) the Aggregate Outstanding Principal
Balance of Eligible Receivables as of such date and (z) 1.5.
"Deficiency Percentage" means, as of any date, the positive excess, if
any, of (i) the sum of (A) 10% plus (B) the Adjusted Total Expense Percentage
plus (C) the greater of (x) the Adjusted Term Index Rate and (y) the Adjusted
Yield Rate over (ii) the weighted average APR for all Receivables in the Total
Receivables Pool.
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"Delinquency Ratio" means, as of any date, the ratio (expressed as a
percentage) computed by dividing:
(a) the sum of (i) the Aggregate Outstanding Principal Balance of
Receivables in the Total Receivables Pool which became
Defaulted Receivables during the Collection Period preceding
such date plus (ii) the Aggregate Outstanding Principal
Balance of Receivables in the Total Receivables Pool which
were Delinquent Receivables on the last day of the immediately
preceding Collection Period
by
(b) the sum of the Aggregate Outstanding Principal Balance of all
Transferred Receivables in the Total Receivables Pool on the
last day of the immediately preceding Collection Period plus,
without duplication, if a Take-Out Securitization has occurred
during such preceding Collection Period, the Aggregate
Outstanding Principal Balance of all Transferred Receivables
which were included in such Take-Out Securitization.
"Delinquent Receivable" means a Receivable (other than a Defaulted
Receivable) with respect to which ninety percent or more of a Scheduled Payment
is 30 or more days past due.
"Deposit Date" means, with respect to any Collection Period, the Business
Day immediately preceding the related Determination Date.
"Determination Date" means, with respect to a Collection Period, the 5th
Business Day prior to the related Distribution Date.
"Distribution Date" means the 20th day of each calendar month, or if such
20th day is not a Business Day, the next succeeding Business Day, commencing May
20, 1997.
"Dollar(s)" and the sign "$" mean lawful money of the United States of
America.
"Eligible Account" means (i) a segregated trust account or (ii) a
segregated direct deposit account, in each case, maintained with a depository
institution or trust company organized under the laws of the United States of
America, or any of the States thereof, or
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the District of Columbia, having a certificate of deposit, short term deposit or
commercial paper rating of at least A-1+ by Standard & Poor's and P-1 by Moody's
and (so long as an Insurer Default shall not have occurred and be continuing)
acceptable to the Controlling Party. In either case, such depository institution
or trust company shall have been approved by the Controlling Party, acting in
its discretion, by written notice to the Custodian.
"Eligible Assignee" has the meaning set forth in Section 16.1.
"Eligible Receivable" means a Transferred Receivable:
(a) that (i) was originated directly by ACC d/b/a Accent Financial
Services with the consumer or was originated by a Dealer for the retail
sale of a Financed Vehicle in the ordinary course of such Dealer's
business and, such Dealer had all necessary licenses and permits to
originate Receivables in the state where such Dealer was located, was
fully and properly executed by the parties thereto, was purchased by
OFL-A, American Credit Corporation or ACC from such Dealer under an
existing Dealer Agreement with OFL-A or ACC (including in its capacity as
successor to American Credit Corporation) and was validly assigned by such
Dealer to OFL-A, American Credit Corporation (in its capacity as the
predecessor of ACC) or ACC (in its individual capacity and in its capacity
as successor to American Credit Corporation), (ii) contains customary and
enforceable provisions such as to render the rights and remedies of the
holder thereof adequate for realization against the collateral security,
and (iii) is a fully amortizing Simple Interest Receivable or Rule of 78s
Receivable which provides for level monthly payments (provided that the
payment in the first Collection Period and the final Collection Period of
the life of the Receivable may be minimally different from the level
payment) which, if made when due, shall fully amortize the Amount Financed
over the original term;
(b) that was originated by a Dealer and was sold by the Dealer to
ACC, American Credit Corporation (in its capacity as the predecessor of
ACC) or OFL- A without any fraud or material misrepresentation on the part
of such Dealer in either case or on the part of the Obligor;
(c) with respect to which all requirements of applicable federal,
state and local laws, and regulations thereunder (including, without
limitation, usury laws, the Federal Truth-in-Lending Act, the Equal Credit
Opportunity Act, the Fair Credit Billing Act, the Fair Credit Reporting
Act, the Fair Debt Collection Practices Act, the Federal Trade Commission
Act, the Xxxxxxxx-Xxxx Warranty
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Act, the Federal Reserve Board's Regulations "B" and "Z", the Soldiers'
and Sailors' Civil Relief Act of 1940, the Minnesota Motor Financed
Vehicle Retail Installment Sales Act, and state adaptations of the
National Consumer Act and of the Uniform Consumer Credit Code and other
consumer credit laws and equal credit opportunity and disclosure laws) in
respect of all of the Receivables in the Total Receivables Pool, each and
every sale of Financed Vehicles and the sale of any physical damage,
credit life and credit accident and health insurance and any extended
service contracts, have been complied with in all material respects, and
each Receivable in the Total Receivables Pool and the sale of the Financed
Vehicle evidenced by each Receivable in the Total Receivables Pool and the
sale of any physical damage, credit life and credit accident and health
insurance and any extended service contracts complied at the time it was
originated or made and now complies in all material respects with all
applicable legal requirements;
(d) that was originated in the United States of America and, at the
time of origination materially conformed to all requirements of the Dealer
Underwriting Guides and ACC's Funding Department Guidelines applicable to
such Receivable;
(e) which represents the genuine, legal, valid and binding payment
obligation of the Obligor thereon, enforceable by the holder thereof in
accordance with its terms, except (A) as enforceability may be limited by
bankruptcy, insolvency, reorganization or similar laws affecting the
enforcement of creditors' rights generally and by equitable limitations on
the availability of specific remedies, regardless of whether such
enforceability is considered in a proceeding in equity or at law and (B)
as such Receivable may be modified by the application of the Soldiers' and
Sailors' Civil Relief Act of 1940, as amended; and all parties to each
Receivable had full legal capacity to execute and deliver such Receivable
and all other documents related thereto and to grant the security interest
purported to be granted thereby;
(f) which is not due from the United States of America or any State
or from any agency, department, subdivision or instrumentality thereof;
(g) which, as of the relevant Purchase Date, (i) had an original
maturity of at least 18 months but not more than 72 months, (ii) had an
original Amount Financed of at least $3,000 and not more than $27,000,
(iii) had an Annual Percentage Rate of at least 14.50% and not more than
27%, (iv) was not more than 30 days past due, (v) no funds have been
advanced by the Borrower, the Servicer, OFL-A, any Dealer, or anyone
acting on behalf of any of them in order to cause
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such Receivable to qualify under subclause (iv) of this clause (g), and
(vi) had no provision thereof waived, altered or modified in any respect
since its origination;
(h) with respect to which the information pertaining to such
Receivable set forth in each Schedule of Receivables is true and correct
in all material respects;
(i) with respect to which, by the related Purchase Date and on each
relevant date thereafter, ACC will have caused the portions of ACC's
servicing records relating to such Receivable to be clearly and
unambiguously marked to show that such Receivable constitutes part of the
Collateral and is subject to a first priority security interest in
accordance with the terms of this Agreement;
(j) with respect to which the Computer Tape or Listing to be made
available by ACC to the Agent from time to time was complete and accurate
as of the related Purchase Date and includes a description of the same
Receivables that are described in the related Schedule of Receivables;
(k) which constitutes chattel paper within the meaning of the UCC;
(l) of which there is only one original executed copy;
(m) with respect to which there exists a Receivable File and such
Receivable File contains, without limitation, (a) a fully executed
original of such Receivable, endorsed, "Pay to the order of Norwest Bank
Minnesota, National Association, as custodian" and signed in the name of
OFL-A by an authorized officer, (b) a certificate of insurance,
application form for insurance signed by the Obligor, or a signed
representation letter from the Obligor named in the Receivable pursuant to
which the Obligor has agreed to obtain physical damage insurance for the
related Financed Vehicle, (c) the original Lien Certificate or application
therefor together with an assignment of the Lien Certificate executed by
ACC to the Borrower and (d) an original credit application signed by the
Obligor; and (x) each of the documents relating thereto which is required
to be signed by the Obligor has been signed by the Obligor in the
appropriate spaces and (y) all blanks on any form relating thereto
required by ACC to be completed have been properly filled in and each form
has otherwise been correctly prepared; and, notwithstanding the above,
with respect to which, a copy of the complete Receivable File for such
Receivable, which fulfills the documentation requirements of the Dealer
Underwriting Guides as in effect at the time of purchase is in the
possession of the Custodian;
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(n) which has not been satisfied, subordinated or rescinded, and the
Financed Vehicle securing such Receivable has not been released from the
lien of such Receivable in whole or in part;
(o) which was not originated in, or is subject to the laws of, any
jurisdiction the laws of which would make unlawful, void or voidable the
sale, transfer and assignment of such Receivable under this Agreement and
with respect to which ACC has not entered into any agreement with any
account debtor that prohibits, restricts or conditions the assignment of
any portion of such Receivable;
(p) which has not been sold, transferred, assigned or pledged by the
Borrower to any Person. No Dealer has a participation in, or other right
to receive, proceeds of any Receivable in the Total Receivables Pool and
with respect to which the Borrower has not taken any action to convey any
right to any Person that would result in such Person having a right to
payments received under the related Insurance Policy or the related Dealer
Agreement or Dealer Assignment or to payments due under such Receivable;
(q) which creates or shall create a valid, binding and enforceable
first priority security interest in favor of OFL-A or ACC, ACC d/b/a
Accent Financial Services in the Financed Vehicle;
(r) which is secured by an enforceable and perfected first priority
security interest in the Financed Vehicle in favor of OFL-A or ACC as
secured party, which security interest is prior to all other Liens upon
and security interests in such Financed Vehicle which now exist or may
hereafter arise or be created (except, as to priority, for any Lien for
taxes, labor or materials affecting a Financed Vehicle); and, with respect
to which there are no Liens or claims for taxes, work, labor or materials
affecting the related Financed Vehicle which are or may be Liens prior or
equal to the lien of such Receivable;
(s) as to which all filings (including, without limitation, UCC
filings) required to be made by any Person and actions required to be
taken or performed by any Person in any jurisdiction to give the
Custodian, on behalf of the Secured Parties, a first priority perfected
lien on, or ownership interest in, the Transferred Receivables and the
proceeds thereof and the other Collateral have been made, taken or
performed;
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(t) as to which neither ACC nor the Borrower has done anything to
convey any right to any Person that would result in such Person having a
right to payments due under such Receivable or otherwise to impair the
rights of the Agent, the Custodian or the Investors in such Receivable or
the proceeds thereof;
(u) which is not assumable by another Person in a manner which would
release the Obligor thereof from such Obligor's obligations to the
Borrower with respect to such Receivable;
(v) which is not subject to any right of rescission, setoff,
counterclaim or defense and no such right has been asserted or threatened
with respect to any Transferred Receivable;
(w) as to which there has been no default, breach, violation or
event permitting acceleration under the terms of such Receivable (other
than payment delinquencies of not more than 30 days) and no condition
exists or event has occurred and is continuing that with notice, the lapse
of time or both would constitute a default, breach, violation or event
permitting acceleration under the terms of such Receivable, and there has
been no waiver of any of the foregoing, and with respect to which the
related Financed Vehicle had not been repossessed;
(x) at the time of the origination of which, the related Financed
Vehicle was covered by a comprehensive and collision insurance policy (i)
in an amount at least equal to the lesser of (a) its maximum insurable
value and (b) the principal amount due from the Obligor under the related
Receivable, (ii) naming OFL-A and its successors and assigns as loss payee
and (iii) insuring against loss and damage due to fire, theft,
transportation, collision and other risks generally covered by
comprehensive and collision coverage and with respect to which the Obligor
is required to maintain physical loss and damage insurance, naming OFL-A
and its successors and assigns as additional insured parties, and such
Receivable permits the holder thereof to obtain physical loss and damage
insurance at the expense of the Obligor if the Obligor fails to do so;
(y) with respect to which the following is true:
The Lien Certificate for the related Financed Vehicle shows, or if a
new or replacement Lien Certificate is being applied for with respect to
such Financed Vehicle the Lien Certificate will be received within 180
days of the Closing Date and will show, OFL-A, American Credit Corporation
(in its capacity as the predecessor of ACC) or ACC, ACC d/b/a Accent
Financial Services (both in
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its individual capacity and in its capacity as the successor of American
Credit Corporation) named as the original secured party under such
Receivable and, accordingly, ACC or OFL-A, as the case may be, will be the
holder of a first priority security interest in such Financed Vehicle.
With respect to each Receivable for which the Lien Certificate has not yet
been returned from the Registrar of Titles, OFL-A or ACC, ACC d/b/a Accent
Financial Services has received written evidence from the related Dealer
or the Obligor that such Lien Certificate showing OFL-A, American Credit
Corporation (in its capacity as the predecessor of ACC) or ACC, ACC d/b/a
Accent Financial Services (both in its individual capacity and in its
capacity as the successor of American Credit Corporation) as first
lienholder has been applied for. If the Receivable was originated in a
state in which a filing or recording is required of the secured party to
perfect a security interest in motor vehicles, such filings or recordings
have been duly made to show OFL-A, American Credit Corporation (in its
capacity as the predecessor of ACC) or ACC, ACC d/b/a Accent Financial
Services (both in its individual capacity and in its capacity as the
successor of American Credit Corporation) named as the original secured
party under the related Receivable;
(z) as to which no selection procedures adverse to the Investors or
to the Insurer have been utilized in selecting such Receivable from all
other similar Receivables originated by ACC;
(aa) that, as of the last day of the immediately preceding
Collection Period, is not a Defaulted Receivable; and
(bb) the Principal Balance of which, as of the first day of the
current Collection Period, if such Receivable is more than 30 but fewer
than 60 days past due, does not, when added to the Principal Balances of
all other Transferred Receivables that are more than 30 but fewer than 60
days past due on such day, exceed the Concentration Limit.
For purposes of this definition, the eligibility of Receivables will be
determined from time to time, such that a Receivable that was an Eligible
Receivable at one time but that subsequently fails to meet all applicable
eligibility requirements will no longer be an Eligible Receivable (unless and
until it again meets all applicable eligibility requirements).
"Eligible Servicer" means ACC, the Backup Servicer or another Person which
at the time of its appointment as Servicer, (i) is servicing a portfolio of
motor vehicle retail installment sales contracts and/or motor vehicle
installment loans, (ii) is legally qualified
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and has the capacity to service the Transferred Receivables, (iii) has
demonstrated the ability professionally and competently to service a portfolio
of motor vehicle retail installment sales contracts and/or motor vehicle
installment loans similar to the Transferred Receivables with reasonable skill
and care, and (iv) is qualified and entitled to use, pursuant to a license or
other written agreement, and agrees to maintain the confidentiality of, the
software which the Servicer uses in connection with performing its duties and
responsibilities under this Agreement or otherwise has available software which
is adequate to perform its duties and responsibilities under this Agreement.
"ERISA" means the U.S. Employee Retirement Income Security Act of 1974, as
amended from time to time.
"Eurocurrency Liabilities" has the meaning assigned to that term in
Regulation D of the Board of Governors of the Federal Reserve System, as in
effect from time to time.
"Eurodollar Advance" means any Advance (or portion thereof) that bears
Yield at the Eurodollar Rate.
"Eurodollar Rate" means, for any Fixed Period, a rate per annum equal to
the rate per annum at which deposits in U.S. dollars are offered by the
principal office of CSFB in London, England to prime banks in the London
interbank market at 11:00 A.M. (London time) two Business Days before the first
day of such Fixed Period in an amount substantially equal to the principal
amount of the Advance associated with such Fixed Period on such first day and
for a period equal to such Fixed Period.
"Eurodollar Rate Reserve Percentage" of any Lender for any Fixed Period in
respect of which Yield is computed by reference to the Eurodollar Rate means the
reserve percentage applicable two Business Days before the first day of such
Fixed Period under regulations issued from time to time by the Board of
Governors of the Federal Reserve System (or any successor) (or if more than one
such percentage shall be applicable, the daily average of such percentages for
those days in such Fixed Period during which any such percentage shall be so
applicable) for determining the maximum reserve requirement (including, without
limitation, any emergency, supplemental or other marginal reserve requirement)
for such Lender with respect to liabilities or assets consisting of or including
Eurocurrency Liabilities (or with respect to any other category of liabilities
that includes deposits by reference to which the yield rate on Eurocurrency
Liabilities is determined) having a term equal to such Fixed Period.
"Event of Bankruptcy" shall be deemed to have occurred with respect to a
Person if either:
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(a) a case or other proceeding shall be commenced, without the
application or consent of such Person, in any court, seeking the
liquidation, reorganization, debt arrangement, dissolution, winding up, or
composition or readjustment of debts of such Person, the appointment of a
trustee, receiver, custodian, liquidator, assignee, sequestrator or the
like for such Person or all or substantially all of its assets, or any
similar action with respect to such Person under any law relating to
bankruptcy, insolvency, reorganization, winding up or composition or
adjustment of debts, and such case or proceeding shall continue
undismissed, or unstayed and in effect, for a period of 60 consecutive
days; or an order for relief in respect of such Person shall be entered in
an involuntary case under the federal bankruptcy laws or other similar
laws now or hereafter in effect; or
(b) such Person shall commence a voluntary case or other proceeding
under any applicable bankruptcy, insolvency, reorganization, debt
arrangement, dissolution or other similar law now or hereafter in effect,
or shall consent to the appointment of or taking possession by a receiver,
liquidator, assignee, trustee, custodian, sequestrator (or other similar
official) for such Person or for any substantial part of its property, or
shall make any general assignment for the benefit of creditors, or shall
fail to, or admit in writing its inability to, pay its debts generally as
they become due, or, if a corporation or similar entity, its board of
directors shall vote to implement any of the foregoing.
"Event of Default" means, from and after a Remarketing Date, any of
the events described in Section 14.1(a) and, so long as no Insurer Default
shall have occurred and be continuing, Sections 13.1(i), 14.1(b) and (d).
"Facility" has the meaning set forth in Section 2.1.
"Facility Agent" means, with respect to payments under the Fee Letter,
CSFB, as agent for the Lenders and the Placement Agent.
"Facility Limit" means $100,000,000, ,as such amount may be reduced
pursuant to Section 2.7. References to the unused portion of the Facility Limit
shall mean, at any time, the Facility Limit, as then reduced pursuant to Section
2.7 minus the sum of the then outstanding principal amount of Advances under
this Agreement.
"Facility Termination Date" means the earliest to occur of (i) the Stated
Maturity Date, (ii) the date of any termination of the Facility, in whole, by
the Borrower pursuant
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to Section 2.7, and (iii) the effective date on which the Facility is terminated
pursuant to Section 14.2.
"Facility Termination Event" means any of the events described in Section
14.1.
"Federal Funds Rate" means, for any period, a fluctuating rate per annum
equal for each day during such period to the weighted average of the rates on
overnight federal funds transactions with members of the Federal Reserve System
arranged by federal funds brokers, as published for such day (or, if such day is
not a Business Day, for the next preceding Business Day) by the Federal Reserve
Bank of New York, or, if such rate is not so published for any day which is a
Business Day, the average of the quotations for such day on such transactions
received by the Agent from three federal funds brokers of recognized standing
selected by it.
"Fee Letter" has the meaning set forth in Section 3.4.
"Fees" means all fees and other amounts payable by the Borrower to the
Facility Agent pursuant to the Fee Letter.
"Financed Vehicle" means any automobile, light duty truck, van, minivan or
sport utility vehicle, together with all accessories, additions and parts
constituting a part thereof and all accessions thereto.
"Fixed Period" means with respect to any Advance (or portion thereof):
(a) the period commencing on the date of the initial funding of such
Advance (or such portion) and ending such number of days (not to exceed 69
days) thereafter as the Agent shall select, after consultation with the
Borrower; and
(b) thereafter, each period commencing on the last day of the
immediately preceding Fixed Period for such Advance (or such portion) and
ending such number of days (not to exceed 69 days) thereafter as the Agent
shall then select, after consultation with the Borrower;
provided, however, that:
(i) any Fixed Period in respect of which Yield is computed by
reference to the Bank Rate shall be a period of from one to and
including 29 days (if reasonably available to the Agent), or a
period of one, two or three
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months (or such other period up to 100 days (if reasonably available
to the Agent)), as the Borrower may select, as herein provided;
(ii) any such Fixed Period (other than a Fixed Period
consisting of one day) that would otherwise end on a day that is not
a Business Day shall be extended to the next succeeding Business Day
(unless the related Advance shall be accruing Yield at a rate
determined by reference to the Eurodollar Rate, in which case if
such succeeding Business Day is in a different calendar month, such
Fixed Period shall instead be shortened to the next preceding
Business Day);
(iii) in the case of Fixed Periods of one day, (A) the initial
Fixed Period shall be the day of the initial funding of such
Advance, and (B) any subsequently occurring Fixed Period that is one
day shall, if the immediately preceding Fixed Period is more than
one day, be the last day of such immediately preceding Fixed Period,
and if the immediately preceding Fixed Period is one day, shall be
the next day following such immediately preceding Fixed Period; and
(iv) if any Fixed Period for any Advance that commences before
the Facility Termination Date would otherwise end on a date
occurring after the Facility Termination Date, such Fixed Period
shall end on the Facility Termination Date and the duration of each
such Fixed Period that commences on or after the Facility
Termination Date, if any, shall be of such duration as shall be
selected by the Agent.
"GAAP" means generally accepted United States accounting principles.
"Indebtedness" of any Person means, without duplication:
(a) all obligations of such Person for borrowed money and all
obligations of such Person evidenced by bonds, debentures, notes or other
similar instruments;
(b) all obligations, contingent or otherwise, relative to the face
amount of all letters of credit, whether or not drawn, and banker's
acceptances issued for the account of such Person;
(c) all obligations of such Person as lessee under leases that have
been or should be, in accordance with GAAP, recorded as capitalized lease
liabilities;
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(d) all other items that, in accordance with GAAP, would be included
as liabilities on the liability side of the balance sheet of such Person
as of the date at which Indebtedness is to be determined;
(e) whether or not so included as liabilities in accordance with
GAAP, all obligations of such Person to pay the deferred purchase price of
property or services, and indebtedness (excluding prepaid interest
thereon) secured by a lien on property owned or being purchased by such
Person (including indebtedness arising under conditional sales or other
title retention agreements), whether or not such indebtedness shall have
been assumed by such Person or is limited in recourse; and
(f) all Contingent Liabilities of such Person in respect of any of
the foregoing.
"Indemnified Amounts" has the meaning set forth in Section 17.1.
"Indemnified Party" has the meaning set forth in Section 17.1.
"Indemnity Agreement" means the Insurance and Indemnity Agreement dated
March 27, 1997 among the Insurer, the Borrower and the Servicer, including all
amendments, modifications and supplements thereto.
"Independent Accountants" has the meaning set forth in Section 8.11(a).
"Index Rate" means, as of any date, the yield rate on United States
treasury securities trading closest to par on such date and maturing in 21
months, or such period of time corresponding to the average life as determined
by the Placement Agent from time to time by written notification to the Insurer,
the Custodian and the Agent representing the expected average life of the
outstanding Notes at such time assuming the Facility Termination Date had
occurred on such date as reported in "Money Rates" section of The Wall Street
Journal on such date, provided, that for purposes of determining the Index Rate
to be utilized in setting the Maximum Interest Rate, the Index Rate shall be set
by the Agent and the Insurer collectively based on the most liquid off the run
issue at such time and on such date to be determined by the Agent and Insurer
collectively based on the corresponding average life of the Notes; provided that
if the Agent and the Insurer cannot agree to such Index Rate on such date and
time, then the Agent, on or prior to the end of the next succeeding Business Day
after the date such parties fail to agree, shall select such Index Rate by
referring to the GovPX page of the financial market reporting services run
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by Bloomberg, L.P. and selecting the most liquid off the run issue with a
corresponding expected average life of the Notes as determined by the Placement
Agent.
"Insurance Agreement Event of Default" means an "Event of Default" as
defined in the Indemnity Agreement.
"Insurance Policies" means, with respect to a Receivable, any insurance
policy (including the insurance policies described in subsection (x) of the
definition of "Eligible Receivable") benefiting the holder of the Receivable
providing loss or physical damage, credit life, credit disability, theft,
mechanical breakdown or similar coverage with respect to the Financed Vehicle or
the Obligor.
"Insurer" means Financial Security Assurance Inc. as guarantor under the
Policy.
"Insurer Default" means the occurrence and continuance of any of the
following events:
(a) the Insurer shall have failed to make a payment required under
the Policy in accordance with its terms;
(b) the Insurer shall have (i) filed a petition or commenced any
case or proceeding under any provision or chapter of the Bankruptcy Code
or any other similar federal or state law relating to insolvency,
bankruptcy, rehabilitation, liquidation or reorganization, (ii) made a
general assignment for the benefit of its creditors, or (iii) had an order
for relief entered against it under the Bankruptcy Code or any other
similar federal or state law relating to insolvency, bankruptcy,
rehabilitation, liquidation or reorganization which is final and
nonappealable;
(c) a court of competent jurisdiction, the New York Department of
Insurance or other competent regulatory authority shall have entered a
final and nonappealable order, judgment or decree (i) appointing a
custodian, trustee, agent or receiver for the Insurer or for all or any
material portion of its property or (ii) authorizing the taking of
possession by a custodian, trustee, agent or receiver of the Insurer (or
the taking of possession of all or any material portion of the property of
the Insurer); or
(d) the Insurer is prohibited pursuant to a final non-appealable
order or decree under applicable law from performing its obligations under
the Policy.
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"Insurer Downgrade Date" shall be deemed to have occurred, if at all, on
the 181st day after the Insurer's claims-paying ability is rated AA or Aa2 or
less by either of the Rating Agencies, unless during the period prior to such
181st day, the Insurer is replaced as the Insurer hereunder or its claims-paying
ability is rated higher than AA or Aa2 by either of the Rating Agencies.
"Interim Distribution Date" means any Business Day, other than a
Distribution Date on which the Custodian shall pay principal, interest and
certain other amounts in accordance with this Agreement and the Custodial
Agreement.
"Investor" means (i) Alpine, (ii) all other owners by assignment or
participation of an Advance and, to the extent of the undivided interests so
purchased, shall include any participants, (iii) all Lenders, (iv) all holders
of a Note and (v) to the extent of any payment under the Policy, the Insurer.
"Lenders" has the meaning set forth in the Preamble.
"LIBOR" means, as of any date, a rate per annum equal to the rate reported
in the "Money Rates" section of The Wall Street Journal on such date as the
London interbank offered rate for one month periods.
"Lien" means any security interest, lien, charge, pledge, preference,
equity or encumbrance of any kind, including tax liens, mechanics' liens and any
liens that attach by operation of law.
"Lien Certificate" means, with respect to a Financed Vehicle, an original
certificate of title, certificate of lien or other notification issued by the
Registrar of Titles of the applicable state to a secured party which indicates
that the lien of the secured party on the Financed Vehicle is recorded on the
original certificate of title. In any jurisdiction in which the original
certificate of title is required to be given to the Obligor, the term "Lien
Certificate" shall mean only a certificate or notification issued to a secured
party.
"Liquidated Receivable" means, with respect to any Collection Period, a
Receivable as to which (i) 60 days have elapsed since the Servicer repossessed
the Financed Vehicle, (ii) the Servicer has determined in good faith that all
amounts it expects to recover have been received, (iii) ninety percent or more
of a Scheduled Payment shall have become 120 or more days delinquent, or in the
case of an Obligor who is subject to bankruptcy proceedings, 210 or more days
delinquent or (iv) the Financed Vehicle has been sold and the proceeds received.
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"Liquidation Proceeds" means, with respect to a Liquidated Receivable, all
amounts realized with respect to such Receivable (other than drawings under the
Policy) net of amounts that are required to be refunded to the Obligor on such
Receivable; provided, however, that the Liquidation Proceeds with respect to any
Receivable shall in no event be less than zero.
"Liquidity Account" means the account designated as the Liquidity Account
in, and which is established and maintained pursuant to Section 8.17(b).
"Liquidity Amount" means, as of any date, an amount equal to the product
of (A)(x) the aggregate principal amount of all Advances as of such date, giving
effect to Advances to be made on such date, divided by (y)the Advance Rate and
(B) the greater of (i) 1% and (ii) (x) the sum of (1) the Adjusted Yield Rate
plus (2) the Adjusted Total Expense Percentage divided by (y) 12.
"Liquidity Amount Shortfall" means, as of any date, an amount (if
positive) equal to the Liquidity Amount for such date minus the amount deposit
in the Liquidity Account on such date.
"Lockbox Agreement" means the Lockbox Agreement dated as of March 27,
1997, by and among the Lockbox Bank, and American Credit Corporation, as
amended, modified or supplemented from time to time, or any other agreement, in
form and substance acceptable to the Agent and, so long as an Insurer Default
shall not have occurred and be continuing, the Insurer.
"Lockbox Bank" means Xxxxx Fargo or any other depository institution named
by the Servicer and acceptable to the Agent and, so long as an Insurer Default
shall not have occurred and be continuing, the Insurer.
"Loss Ratio" means, as of any date, the average of the loss ratios
(expressed as a percentage) for the six Collection Periods immediately preceding
such date, as computed based on the methodology set forth in ACC's then most
recent report on Form 10-Q or Form 10-K, as applicable, for calculation of net
losses on Receivables originated and serviced by ACC.
"Maximum Interest Rate" means, as of any date after the Facility
Termination Date, the sum of (i) the greater of (x) the Term Index Rate and (y)
the weighted average APR for all Receivables in the Total Receivables Pool minus
the Adjusted Total Expense Percentage minus 10% plus (ii) 1%, to the extent that
during the period ending 90 days
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after the Facility Termination Date both (x) a Remarketing Date has occurred and
(y) a Primary Rating Event has occurred and is continuing.
"Monthly Records" means all records and data maintained by the Servicer
with respect to the Transferred Receivables, including the following with
respect to each Transferred Receivable: the account number; the originating
Dealer; Obligor name; Obligor address; Obligor home phone number; Obligor
business phone number; original Principal Balance; original term; Annual
Percentage Rate; current Principal Balance; current remaining term; origination
date; first payment date; final scheduled payment date; next payment due date;
date of most recent payment; new/used classification; collateral description;
days currently delinquent; number of contract extensions (months) to date;
amount of Scheduled Payment; current Insurance Policy expiration date; and past
due late charges.
"Moody's" means Xxxxx'x Investors Service, Inc.
"Note" means a promissory grid note, in the form of Exhibit B, made
payable to the order of the Agent, on behalf of the Investors.
"Note Register" has the meaning set forth in Section 16.5(a).
"Note Registrar" has the meaning set forth in Section 16.5(a).
"Obligations" means all obligations (monetary or otherwise) of the
Borrower to the Investors, the Insurer or Agent arising under or in connection
with this Agreement, the Note(s) and each other Transaction Document.
"Obligor" means a Person obligated to make payments with respect to a
Transferred Receivable.
"Officer's Certificate" means a certificate signed by the chairman of the
board, the vice chairman, the president, the chief financial officer or any
executive vice president.
"OFL-A" means OFL-A Receivables Corp., a Delaware corporation and
wholly-owned subsidiary of ACC.
"Opinion of Counsel" means a written opinion of independent counsel
reasonably acceptable to the Insurer, which opinion, if such opinion or a copy
thereof is required by the provisions of this Agreement to be delivered to the
Insurer, is acceptable in form and substance to the Insurer.
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"Other Conveyed Property" has the meaning set forth in the Purchase and
Sale Agreement.
"Permitted Investment" means, at any time:
(a) any evidence of Indebtedness, maturing not later than the
Business Day immediately preceding the next Distribution Date, issued or
guaranteed by the United States Government or any agency thereof;
(b) commercial paper, maturing not later than the Business Day
immediately preceding the next Distribution Date, in each case issued by a
corporation (other than the Borrower or any Affiliate of the Borrower)
organized under the laws of any state of the United States or of the
District of Columbia and rated at least A-1 by Standard & Poor's or P-1 by
Moody's;
(c) any certificate of deposit (or time deposits represented by such
certificates of deposit) or bankers acceptance, maturing not later than
the Business Day immediately preceding the next Distribution Date, or
overnight federal funds transactions that are issued or sold by a
commercial banking institution that is a member of the Federal Reserve
System and has a combined capital and surplus and undivided profits of not
less than $500,000,000; or
(d) any repurchase agreement entered into with CSFB (or other
commercial banking institution of the stature referred to in clause
(c)(i)) that
(i) is secured by a fully perfected security interest in any
obligation of the type described in any of clauses (a) through (c);
and
(ii) has a market value at the time such repurchase agreement
is entered into of not less than 100% of the repurchase obligation
of CSFB (or other commercial banking institution) thereunder.
(e) with the prior written consent of the Controlling Party, money
market mutual funds registered under the Investment Company Act of 1940,
as amended, having a rating, at the time of such investment, from each of
the Rating Agencies in the highest investment category granted thereby;
and
(f) any other investment as may be acceptable to the Controlling
Party, as evidenced by a writing to that effect, as may from time to time
be confirmed in writing to the Custodian by the Controlling Party.
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Any Permitted Investments may be purchased by or through the Custodian or
any of its Affiliates.
"Person" means an individual, partnership, corporation (including a
business trust), joint stock company, trust, unincorporated association, joint
venture, government or any agency or political subdivision thereof or any other
entity.
"Placement Agent" means Credit Suisse First Boston Corp.
"Policy" means that certain financial guaranty policy no. 50580-N issued
by the Insurer for the benefit of the Investors.
"Preference Claim" has the meaning set forth in Section 18.14(b).
"Pre-funded Amount" has the meaning set forth in Section 3.1.
"Premium Rate" means 0.475% per annum.
"Primary Rating Event" means that the claims-paying ability of the Insurer
is rated less than AAA or Aaa or is on credit watch with negative implications
by either of the Rating Agencies.
"Principal Balance" means, with respect to any Receivable, as of any date,
the Amount Financed minus (i) that portion of all amounts received by the
Servicer or the Lockbox Bank with respect to such Receivable on or prior to such
date and allocable to principal in accordance with the terms of such Receivable,
and (ii) any Cram Down Loss in respect of such Receivable.
"Program" has the meaning set forth in Section 8.11(a).
"Purchase Amount" means, with respect to a Receivable, the Principal
Balance and all accrued and unpaid interest on such Receivable as of the date of
purchase by the Servicer pursuant to Section 8.7.
"Purchase and Sale Agreement" means the Purchase and Sale Agreement, dated
as of March 27, 1997, by and among the Borrower, OFL-A and ACC.
"Purchase Date" has the meaning set forth in the Purchase and Sale
Agreement.
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"Rating Agencies" means Standard & Poor's and Moody's.
"Receipt Certification" has the meaning set forth in the Custodial
Agreement.
"Receivable" means any right to payment from a Person, and includes
without limitation the right to payment of any interest or finance charges and
other obligations of such Person with respect thereto.
"Receivable File" means, with respect to each Receivable in the Total
Receivables Pool:
(a) the fully executed original of such Receivable (together with
any agreements modifying such Receivable, including, without limitation,
any extension agreements);
(b) documents evidencing or related to any Insurance Policy;
(c) the original credit application of each Obligor, fully executed
by each such Obligor on ACC's customary form, or on a form approved by
ACC, for such application; and
(d) the Lien Certificate, or, if not yet received, a copy of the
application therefor, showing OFL-A, American Credit Corporation, ACC
d/b/a Accent Financial Services or ACC as secured party and such
documents, if any, that ACC keeps on file in accordance with its customary
procedures indicating that the Financed Vehicle is owned by the Obligor
and subject to the interest of OFL-A or ACC (as successor to American
Credit Corporation where American Credit Corporation is shown as the
secured party) as first lienholder or secured party.
"Record Date" means with respect to any Determination Date or Distribution
Date, the last day of the immediately preceding calendar month.
"Registrar of Titles" means, with respect to any state, the governmental
agency or body responsible for the registration of, and the issuance of
certificates of title relating to, motor vehicles and liens thereon.
"Remarketing Date" means the date on which the Note is transferred to any
Person other than a Lender, the Placement Agent or any entity which enters into
a commitment to purchase interests in Advances or the Notes held by the Lenders.
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"Required Holdback" means, as of any date, the sum of (i) the greater of
(a) the product of (1) 1 minus the Advance Rate and (2) the Aggregate
Outstanding Principal Balance of Eligible Receivables on such date and (b)
$300,000 and (ii) the Deficiency Amount for such date.
"Responsible Officer" means, with respect to any Person that is not an
individual, the President, any Vice-President or Assistant Vice-President,
Corporate Trust Officer or the Controller of such Person, or any other officer
or employee having similar functions.
"Rule of 78s Method" means the method under which a portion of a payment
allocated to earned interest and the portion allocable to principal is
determined according to the sum of the month's digits or any equivalent method
commonly referred to as the "Rule of 78s."
"Rule of 78s Receivable" means any Receivable under which the portion of a
payment allocable to interest and the portion allocable to principal is
determined in accordance with the Rule of 78s Method.
"Schedule of Receivables" means the Schedule of Receivables in the form
attached hereto as Schedule A as supplemented from time to time in connection
with the transfer of Receivables by OFL-A to the Borrower.
"Scheduled Payment" means, with respect to any Receivable, the periodic
payment set forth in such Receivable (excluding, however, any portion of such
payment that represents late payment charges and payments in respect of taxes,
licenses or similar items).
"Secondary Rating Event" means that the claims-paying ability of the
Insurer is rated less than A or A2 by either of the Rating Agencies.
"Secured Obligations" has the meaning set forth in the Custodial
Agreement.
"Secured Parties" has the meaning set forth in the Custodial Agreement.
"Servicer" means ACC or, as applicable, any successor servicer appointed
pursuant to Section 13.3.
"Servicer Delinquency Ratio" means, as of any date, the ratio, expressed
as a percentage, computed by dividing (i) the Aggregate Outstanding Principal
Balance on such date of all Receivables serviced by the Servicer (A) that are
Delinquent Receivables
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and (B) as to which ninety percent or more of a Scheduled Payment is more than
30 days past due (including all Receivables for which the related Financed
Vehicle has been repossessed and the proceeds thereof have not yet been realized
by the Servicer) by (ii) the average Aggregate Outstanding Principal Balance of
all Receivables originated and serviced by the Servicer for the last day of the
preceding Collection Period.
"Servicer Extension Notice" has the meaning set forth in Section 8.14.
"Servicer Termination Event" has the meaning set forth in Section 13.1.
"Servicer's Certificate" means, with respect to each Determination Date, a
certificate, completed by and executed on behalf of the Servicer, in accordance
with Section 8.9, substantially in the form attached hereto as Exhibit E.
"Servicing Fee" means, as of any Distribution Date, an amount equal to the
product of (i) 1/12 of the Servicing Fee Rate and (ii) the Aggregate Outstanding
Principal Balance of Receivables in the Total Receivables Pool as of the first
day of the Collection Period immediately preceding such Distribution Date.
"Servicing Fee Rate" means 2.75%.
"Servicing Procedures Manual" means the servicing manual used by ACC in
the servicing of Receivables, as amended from time to time.
"Settlement Date" means, with respect to any Advance, (x) each
Distribution Date, (y) prior to a Remarketing Event, at the option of the Agent
or the Borrower, the last day of the current Fixed Period of such Advance or (z)
the date on which the Borrower shall prepay Advances pursuant to Section 4.1
hereof.
"Simple Interest Method" means the method of allocating a fixed level
payment on an obligation between principal and interest, pursuant to which the
portion of such payment that is allocated to interest is equal to the product of
the fixed rate of interest on such obligation multiplied by the period of time
(expressed as a fraction of a year, based on the actual number of days in the
calendar month and 365 days in the calendar year) elapsed since the preceding
payment under the obligation was made.
"Simple Interest Receivable" means a Receivable under which the portion of
the payment allocable to interest and the portion allocable to principal is
determined in accordance with the Simple Interest Method.
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"Standard & Poor's" means Standard & Poor's, a division of The XxXxxx-Xxxx
Companies, Inc.
"Stated Maturity Date" means March 26, 1998, as extended as specified in
and upon notice to the Borrower and Insurer by the Lenders; provided that on and
after the Facility Termination Date, the "Stated Maturity Date" shall be the
Distribution Date occurring during the 75th month following the Facility
Termination Date, or such other date as determined by the Placement Agent on the
Remarketing Date.
"Subsidiary" means, with respect to any Person, a corporation of which
such Person and/or its other Subsidiaries own, directly or indirectly, such
number of outstanding shares as have more than 50% of the ordinary voting power
for the election of directors.
"Take-Out Securitization" means (i) a financing transaction of any sort
undertaken by the Borrower or any Affiliate of the Borrower secured, directly or
indirectly, by any Transferred Receivables or (ii) any other asset
securitization, secured loans or similar transactions involving any Transferred
Receivables or any beneficial interest therein.
"Tangible Net Worth" means with respect to the Borrower, the net worth of
the Borrower calculated in accordance with GAAP after subtracting therefrom the
aggregate amount of the Borrower's intangible assets, including, without
limitation, goodwill, franchises, licenses, patents, trademarks, tradenames,
copyrights and service marks.
"Term Index Rate" means, as of any date, the sum of (x) the Index Rate
plus (y) the Term Index Spread plus (z) the Base Fee Percentage.
"Term Index Spread" means 2% or such lower percentage as may be set for a
specified period or periods by the Lenders by written notice to the Borrower,
the Insurer and the Custodian.
"Total Expense Percentage" means, as of any date, the sum of (x) the
Servicing Fee Rate plus (y) the fee to be paid to the Custodian pursuant to the
Custodial Agreement plus (z) the Premium Rate.
"Total Receivables Pool" means all Receivables owned by the Borrower.
"Transaction Documents" means this Agreement, the Note(s), the Fee Letter,
the Custodial Agreement, the Purchase and Sale Agreement, the Indemnity
Agreement, the
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Policy and the other documents to be executed and delivered in connection with
this Agreement.
"Transferred Receivable" has the meaning set forth in the Purchase and
Sale Agreement.
"Transfer Request" has the meaning set forth in Section 9.5(a).
"UCC" means the Uniform Commercial Code as from time to time in effect in
the applicable jurisdiction or jurisdictions.
"Unmatured Event of Default" means any event that, if it continues
uncured, will, with lapse of time or notice or lapse of time and notice,
constitute an Event of Default.
"Warehouse Facility" means, as of any date, any subsequent agreement or
agreements entered into from time to time after the date hereof, providing for
the financing of the Receivables, as such agreement or agreements may be
amended, supplemented or otherwise modified from time to time (i) in an amount
equal at least to the lesser of (x) 50% of the outstanding principal amount of
Receivables originated by ACC in the immediately preceding calendar quarter and
(y) $50,000,000, and (ii) with respect to which the Custodian acts as custodian
thereunder for the benefit of the Lenders.
"Warranty Receivable" means, with respect to any Collection Period, a
Receivable that the Servicer has become obligated to repurchase pursuant to
Section 8.7.
"Yield" means, with respect to any period, the sum of the following:
(i) without duplication of the amount set forth in the
immediately following clause (ii), the sum of the daily interest
accrued on the commercial paper outstanding on each day during such
period net of investment earnings on any Pre-funded Amount equal,
for any such day, to the product of (x) the outstanding principal
amount of commercial paper on such day, (y) the Commercial Paper
Rate and (z) 1/360, plus
(ii) if any commercial paper has been issued during such
period to fund the interest component on any other commercial paper
maturing on a date other than a Settlement Date, the sum of the
daily interest accrued on such additional commercial paper
outstanding on each day during such period equal, for any such day,
to the product of (x) the outstanding
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principal amount of such additional commercial paper on such day,
(y) the Commercial Paper Rate and (z) 1/360, plus
(iii) the sum of the daily interest accrued on Advances funded
or maintained other than through the issuance of commercial paper on
each day during such period equal, for any such day, to the product
of (x) the outstanding principal amount of such Advances on such
day, (y) the Bank Rate and (z) the applicable computation period
determined in accordance with Section 3.5 of this Agreement,
less the amount of Yield paid on all Interim Distribution Dates during such
period; and on any day on and after the Remarketing Date, the "Yield" for any
period shall equal the sum of the daily interest for each such day during such
period equal to the product of (x) the rate determined by the Placement Agent
and set forth in the applicable note purchase agreement (which rate shall not
exceed the Maximum Interest Rate) and (y) the outstanding principal of all
Advances on such day, and (z) 1/360.
SECTION 1.2 Other Definitional Provisions. (a) Unless otherwise specified
therein, all terms defined in this Agreement have the meanings as so defined
herein when used in the Note or any other Transaction Document, certificate,
report or other document made or delivered pursuant hereto.
(b) Each term defined in the singular form in Section 1.1 or
elsewhere in this Agreement shall mean the plural thereof when the plural
form of such term is used in this Agreement, the Note or any other
Transaction Document, certificate, report or other document made or
delivered pursuant hereto, and each term defined in the plural form in
Section 1.1 shall mean the singular thereof when the singular form of such
term is used herein or therein.
(c) The words "hereof," "herein," "hereunder" and similar terms when
used in this Agreement shall refer to this agreement as a whole and not to
any particular provision of this Agreement, and article, section,
subsection, schedule and exhibit references herein are references to
articles, sections, subsections, schedules and exhibits to this Agreement
unless otherwise specified.
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ARTICLE II
THE FACILITY, ADVANCE PROCEDURES AND NOTE
SECTION 2.1 Facility. On the terms and subject to the conditions set forth
in this Agreement, Alpine may, in its sole discretion, and, if Alpine elects not
to, the Banks shall, make Advances to the Borrower on a revolving basis from
time to time before the Facility Termination Date in such amounts as may be from
time to time requested by the Borrower pursuant to Section 2.2 (the "Facility");
provided, however, that the aggregate principal amount of all Advances from time
to time outstanding hereunder shall not exceed the lesser of (a) the Facility
Limit and (b) the Borrowing Base. Within the limits of the Facility, the
Borrower may borrow, prepay and reborrow under this Section 2.1. Under no
circumstances shall any Lender make any such Advance if after giving effect
thereto the aggregate outstanding principal balance of all Advances would exceed
the Facility Limit.
SECTION 2.2 Advance Procedures. The Borrower may request an Advance
hereunder by giving notice to the Agent, the Custodian and the Insurer of a
proposed Advance not later than 1:00 P.M., New York time, one Business Day prior
to the proposed date of such Advance. Each such notice (herein called an
"Advance Request") shall be in the form of Exhibit A and shall include the date
and amount of such proposed Advance, the desired duration of the Fixed Period
for such Advance and the supplement to the Schedule of Receivables setting forth
the information required therein with respect to the Receivables to be acquired
by the Borrower with the proceeds of the proposed Advance. Any Advance Request
given by the Borrower pursuant to this Section 2.2 shall be irrevocable and
binding on the Borrower.
SECTION 2.3 Funding. Subject to the satisfaction of the conditions
precedent set forth in Article VII with respect to such Advance and the
limitations set forth in Section 2.1, the Lenders shall make the proceeds of
such requested Advance available as follows: first, to the extent there is a
Liquidity Amount Shortfall on the proposed date of the Advance, an amount equal
to the Liquidity Amount Shortfall shall be deposited by the Lenders in the
Liquidity Account and, second, all amounts of the proposed Advance in excess of
any Liquidity Amount Shortfall shall be made available to the Custodian at
Account No. 00000000 at Norwest Bank Minnesota, National Association in same day
funds no later than 3:00 p.m., New York time, on the proposed date of the
Advance. Each Advance shall be on a Business Day and shall be in an amount of at
least $1,000,000 (or an integral multiple of $50,000 in excess thereof);
provided, however, that, subject to Section 2.1 and Section 7.2, on any
Settlement Date for any existing
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Advance, the Borrower may request the Lenders (a) to fund all or a part of such
existing Advance, and (b) to fund any increase in such Advance in such amount as
may be specified by the Borrower in the related Advance Request.
SECTION 2.4 Representation and Warranty. Each request for an Advance
pursuant to Section 2.2 shall automatically constitute a representation and
warranty by the Borrower to the Agent and the Lenders that, on the requested
date of such Advance, (a) the representations and warranties contained in
Article IX will be true and correct as of such requested date as though made on
such date, (b) no Event of Default or Unmatured Event of Default has occurred
and is continuing or will result from the making of such Advance, and (c) after
giving effect to such requested Advance, the aggregate principal balance of the
outstanding Advances hereunder will not exceed the Borrowing Base.
SECTION 2.5 [Intentionally left blank]
SECTION 2.6 [Intentionally left blank]
SECTION 2.7 Voluntary Termination of Facility; Reduction of Facility
Limit. The Borrower may, in its sole discretion for any reason upon at least
five Business Days' notice to the Agent, terminate the Facility in whole or
reduce in part the unused portion of the Facility Limit; provided, however, that
(a) each such partial reduction will be in a minimum amount of $5,000,000 or a
higher integral multiple of $1,000,000, (b) in the event of a partial reduction
and after giving effect to any such partial reduction and any prior partial
reduction, the remaining Facility Limit will not be less than $50,000,000, and
(c) in connection therewith the Borrower complies with Section 3.2(b) and
Section 4.l(b).
SECTION 2.8 Note. All Advances shall be evidenced by one or more Notes,
with appropriate insertions, payable to the order of the Agent, on behalf of the
Investors. The Borrower hereby irrevocably authorizes the Agent to make (or
cause to be made) appropriate notations on the grid attached to the Note(s) (or
on any continuation of such grid, or at the Agent's option, in its records),
which notations, if made, shall evidence, inter alia, the date of, the
outstanding principal of, and the yield rate and Fixed Period applicable to the
Advances evidenced thereby. Such notations shall be rebuttably presumptive
evidence of the subject matter thereof absent manifest error; provided, however,
that the failure to make any such notations shall not limit or otherwise affect
any Obligations of the Borrower.
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ARTICLE III
YIELD, FEES, ETC.
SECTION 3.1 Yield Rates. The Borrower hereby promises to pay Yield
on the unpaid principal amount of each Advance (or each portion thereof) for the
period commencing on the date of such Advance until such Advance is paid in full
and on the outstanding principal amount (the "Pre-funded Amount") of any
commercial paper issued, as determined by the Agent in consultation with the
Borrower, with the intention of disbursing the proceeds thereof as an Advance on
a date after the date of such issuance, as follows:
(a) at all times while the making or maintenance of such Advance (or
the applicable portion thereof) and the Pre-funded Amount is funded by
Alpine by the issuance of commercial paper at a rate per annum equal to
the Commercial Paper Rate;
(b) at all times while the making or maintenance of such Advance (or
the applicable portion thereof) (i) is funded by Alpine during each Fixed
Period for such Advance (or such portion) other than by the issuance of
commercial paper or (ii) is funded by the Lenders, at a rate per annum
equal to the Bank Rate; and
(c) notwithstanding the provisions of the preceding clauses (a) and
(b), in the event that an Event of Default has occurred and is continuing,
at a rate per annum (the "Default Rate") equal to the Alternate Base Rate
(but not less than the Yield in effect for such Advance as at the date of
such Event of Default), plus a margin of 2%.
After the date any principal amount of any Advance is due and payable
(whether on the Stated Maturity Date, upon acceleration or otherwise) or after
any other monetary Obligation of the Borrower arising under this Agreement shall
become due and payable, the Borrower shall pay (to the extent permitted by law,
if in respect of any unpaid amounts representing Yield,) Yield (after as well as
before judgment) on such amounts at a rate per annum equal to the Alternate Base
Rate plus a margin of 2%. No provision of this Agreement or the Note shall
require the payment or permit the collection of Yield in excess of the maximum
permitted by applicable law.
SECTION 3.2 Yield Payment Dates. Yield accrued on each Advance shall be
payable, without duplication:
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(a) on the Stated Maturity Date;
(b) on the date of any payment or prepayment, in whole or in part,
of principal outstanding on such Advance; and
(c) on each Distribution Date provided that, prior to the
Remarketing Date, Yield relating to such Advance may be payable, at the
option of the Agent or the Borrower, on the related Settlement Date.
SECTION 3.3 Yield Allocations; Selection of Fixed Periods, etc. (a) The
Agent shall, from time to time and in its sole discretion in good faith,
determine whether Yield in respect of the Advances then outstanding, or any
portion thereof, shall be calculated by reference to the Commercial Paper Rate
(such portion being herein called a "CP Allocation") or the Bank Rate (such
portion being herein called a "Bank Rate Allocation", and together with a CP
Allocation individually called an "Allocation", and collectively,
"Allocations"); provided, however, that the Agent may determine, at any time and
in its sole discretion in good faith, that the Commercial Paper Rate is
unavailable or otherwise not desirable, in which case the Advances will be
allocated to a Bank Rate Allocation (unless the Default Rate is in effect). The
Agent shall provide the Borrower with reasonably prompt notice of the
Allocations made by it pursuant to this Section 3.3(a).
(b) The Agent, in its sole discretion in good faith after
consultation with the Borrower, shall select the duration of the initial
and each subsequent Fixed Period relating to each Advance. In selecting
such Fixed Period, the Agent shall use reasonable efforts, taking into
consideration market conditions, to accommodate the Borrower's
preferences; provided, however, that the Agent shall have the ultimate
authority to make all such selections. Unless consented to or directed by
the Agent, the aggregate number of Fixed Periods for all Advances
outstanding at any one time hereunder shall not exceed 12, it being
understood that if necessary to match the funding requirement of Alpine,
any Advance may be divided into portions having different Fixed Periods.
SECTION 3.4 Fees. The Borrower agrees to pay to CSFB, as agent for the
Lenders, certain fees in the amounts and on the dates set forth in the letter
agreement among the Agent, the Borrower, ACC, the Placement Agent and the
Custodian as of the date hereof (as the same may be amended, supplemented or
otherwise modified, the "Fee Letter").
SECTION 3.5 Computation of Yield and Fees. All Yield and Fees shall be
computed on the basis of the actual number of days (including the first day but
excluding
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the last day) occurring during the period for which such Yield or fee is payable
over a year comprised of 360 days (or, in the case of Yield on an Advance
bearing Yield at the Alternate Base Rate, 365 days or, if appropriate, 366
days).
ARTICLE IV
REPAYMENTS AND PREPAYMENTS
SECTION 4.1 Repayments and Prepayments. The Borrower shall repay in full
the unpaid principal amount of each Advance on the Stated Maturity Date. Prior
thereto, the Borrower:
(a) may, from time to time on any Business Day, make a prepayment,
in whole or in part, of the outstanding principal amount of any Advance;
provided, however, that
(i) all such voluntary prepayments shall require at least one
but no more than five Business Days' prior written notice to the
Agent; and
(ii) all such voluntary partial prepayments shall be in a
minimum amount of $1,000,000 and an integral multiple of $500,000;
(b) shall, on each date when any reduction in the Facility Limit
shall become effective pursuant to Section 2.7, make a prepayment of the
Advances in an amount equal to the excess, if any, of the aggregate
outstanding principal amount of the Advances over the Facility Limit as so
reduced;
(c) shall, immediately upon any acceleration of the Stated Maturity
Date of any Advances pursuant to Section 14.2, repay all Advances, unless,
pursuant to Section 14.2(a), only a portion of all Advances is so
accelerated, in which event the Borrower shall repay the accelerated
portion of the Advances; and
(d) shall, on the date the Borrower receives any net proceeds from
any Take-Out Securitization (after deducting all costs and expenses of
such Take-Out Securitization), make a prepayment of the Advances in an
amount substantially equal to such net proceeds or, if less, the total
outstanding amount of Advances.
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Each such prepayment shall be subject to the payment of any amounts
required by Section 6.3 resulting from a prepayment or payment of an Advance
prior to the Settlement Date with respect thereto.
ARTICLE V
PAYMENTS
SECTION 5.1 Making of Payments. Subject to, and in accordance with, the
provisions of the Custodial Agreement, all payments of principal of, or Yield
on, the Advances and of all Fees and the amounts shall be made by the Borrower
no later than 2:00 p.m., New York time, on the day when due in lawful money of
the United States of America in same day funds to the Agent, at its special
account (account number 930539- 08) maintained at the office of CSFB at Eleven
Madison Avenue, New York, New York or such other account as the Agent shall
designate in writing to the Borrower, the Custodian and the Insurer (the
"Agent's Account"). Funds received by the Agent after 2:00 p.m. New York time,
on the date when due, will be deemed to have been received by the Agent on its
next following Business Day.
SECTION 5.2 Application of Certain Payments. Each payment of principal of
the Advances shall be applied to such Advances as the Borrower shall direct or,
in the absence of such notice or during the existence of an Event of Default or
after the Facility Termination Date, as the Agent shall determine prior to the
Remarketing Date, in its discretion and, after the Remarketing Date, as directed
by the holders of the Notes.
SECTION 5.3 Due Date Extension. If any payment of principal or Yield with
respect to any Advance falls due on a day which is not a Business Day, then such
due date shall be extended to the next following Business Day, and additional
Yield shall accrue and be payable for the period of such extension at the rate
applicable to such Advance.
ARTICLE VI
INCREASED COSTS, ETC.
SECTION 6.1 Increased Costs. (a) If due to the introduction of or any
change in or in the interpretation of any law or regulation occurring or issued
after the date hereof, the Agent, any Lender, any entity which enters into a
commitment to make Advances or
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purchase interests therein, or any of their respective Affiliates (each an
"Affected Person") determines that compliance with any law or regulation or any
guideline or request from any central bank or other governmental authority
(whether or not having the force of law) affects or would affect the amount of
capital required or expected to be maintained by such Affected Person and such
Affected Person determines that the amount of such capital is increased by or
based upon the existence of any commitment to make Advances related to this
Agreement or to the funding thereof and other commitments of the same type,
then, upon demand by such Affected Person (with a copy to the Agent) (which
demand shall be accompanied by a statement setting forth the basis for the
calculations of the amount being claimed), the Borrower shall immediately pay to
the Agent, for the account of such Affected Person (as a third-party
beneficiary), from time to time as specified by such Affected Person, additional
amounts sufficient to compensate such Affected Person in the light of such
circumstances, to the extent that such Affected Person reasonably determines
such increase in capital to be allocable to the existence of any of such
commitments. Such written statement shall, in the absence of manifest error, be
rebuttably presumptive evidence of the subject matter thereof. Any Affected
Person claiming any additional amounts payable pursuant to this Section 6.1(a)
agrees to use reasonable efforts (consistent with legal and regulatory
restrictions) to designate a different office or branch of such Affected Person
if the making of such a designation would avoid the need for, or reduce the
amount of, any such additional amounts and would not, in the reasonable judgment
of such Affected Person, be otherwise disadvantageous to such Lender.
(b) If, due to either (i) the introduction of or any change (other
than any change by way of imposition or increase of reserve requirements
referred to in Section 6.2) in or in the interpretation of any law or
regulation or (ii) compliance with any guideline or request from any
central bank or other governmental authority (whether or not having the
force of law) issued or delivered after the date hereof, there shall be
any increase in the cost to a Lender of agreeing to make Advances in
respect of which Yield is computed by reference to the Eurodollar Rate,
then, upon demand by such Lender (with a copy to the Agent) (which demand
shall be accompanied by a statement setting forth the basis for the amount
being claimed), the Borrower shall immediately pay to the Agent, for the
account of such Lender (as a third-party beneficiary), from time to time
as specified by such Lender, additional amounts sufficient to compensate
such Lender for such increased costs. Such written statement shall, in the
absence of manifest error, be rebuttably presumptive evidence of the
subject matter thereof.
SECTION 6.2 Additional Yield on Advances Bearing a Eurodollar Rate. The
Borrower shall pay to any Lender, so long as such Lender shall be required under
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regulations of the Board of Governors of the Federal Reserve System to maintain
reserves with respect to liabilities or assets consisting of or including
Eurocurrency Liabilities, additional Yield on the unpaid Advances of such Lender
during each Fixed Period in respect of which Yield is computed by reference to
the Eurodollar Rate, for such Fixed Period, at a rate per annum equal at all
times during such Fixed Period to the remainder obtained by subtracting (i) the
Eurodollar Rate for such Fixed Period from (ii) the rate obtained by dividing
such Eurodollar Rate referred to in clause (i) above by that percentage equal to
100% minus the Eurodollar Rate Reserve Percentage of such Lender for such Fixed
Period, payable on each date on which Yield is payable on such Advances. Such
additional Yield shall be determined by such Lender and notice thereof
(accompanied by a statement setting forth the basis for the amount being
claimed) given to the Borrower through the Agent within 30 days after any Yield
payment is made with respect to which such additional Yield is requested. Such
written statement shall, in the absence of manifest error, be rebuttably
presumptive evidence of the subject matter thereof.
SECTION 6.3 Funding Losses. The Borrower hereby agrees that upon demand by
any Affected Person (which demand shall be accompanied by a statement setting
forth the basis for the calculations of the amount being claimed) the Borrower
will indemnify such Affected Person against any net loss or expense which such
Affected Person may sustain or incur (including, without limitation, any net
loss or expense incurred by reason of the liquidation or reemployment of
deposits or other funds acquired by such Affected Person to fund or maintain any
Advance to the Borrower or any Pre- funded Amount), as reasonably determined by
such Affected Person, as a result of (a) any payment or prepayment (including
any mandatory prepayment) of any Advance on a date other than the Settlement
Date for such Advance, or (b) any failure of the Borrower to accept or request
the disbursement of any Pre-funded Amount to make any Advance on a date
specified therefor in a related Advance Request. Such written statement shall,
in the absence of manifest error, be rebuttably presumptive evidence of the
subject matter thereof.
ARTICLE III
CONDITIONS TO ADVANCES
The making of any Advance hereunder is subject to the following conditions
precedent:
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SECTION 7.1 Initial Advance. The making of the initial Advance is,
in addition to the conditions precedent specified in Section 7.2, subject to the
condition precedent that the Agent and the Insurer shall have each received all
of the following, each duly executed and dated the date of such Advance (or such
earlier date as shall be satisfactory to the Agent), in form and substance
satisfactory to the Agent and the Insurer:
(a) Resolutions. Certified copies of resolutions of the Board of
Directors of the Borrower authorizing or ratifying the execution, delivery
and performance, respectively, of this Agreement and the other Transaction
Documents to which it is a party.
(b) Incumbency and Signatures. A certificate of the Secretary or an
Assistant Secretary of the Borrower certifying the names of its officer or
officers authorized to sign this Agreement, and the other Transaction
Documents.
(c) Closing Certificate. A certificate from an authorized officer of
the Borrower as to the satisfaction of the conditions set forth in clauses
(a), (b) and (c) of Section 7.2.1 as at the date of this Agreement.
(d) Borrowing Base Certificate. A Borrowing Base Certificate duly
executed by the chief financial officer of the Borrower showing a
calculation of the Borrowing Base as of the date of such initial Advance.
(e) Transaction Documents. Executed counterparts of each Transaction
Document, duly executed by each of the parties thereto, and all conditions
to the effectiveness thereof set forth therein shall have been satisfied
in all respects.
(f) Other. Such other documents as the Agent or the Insurer may
reasonably request.
SECTION 7.2 All Advances. The making of the initial Advance and each
subsequent Advance are subject to the following further conditions precedent
that:
(a) No Default, etc. (i) No Event of Default (including, without
limitation, an Insurance Agreement Event of Default) or Unmatured Event of
Default has occurred and is continuing or will result from the making of
such Advance, (ii) the representations and warranties of the Borrower
contained in Article IX are true and correct as of the date of such
requested Advance, with the same effect as though made on the date of such
Advance, and (iii) after giving
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effect to such Advance, the aggregate outstanding principal balance of the
Advances hereunder will not exceed the Borrowing Base.
(b) Advance Request, etc. The Agent and the Insurer shall have
received the Advance Request for such Advance in accordance with Section
2.2, together with all items required to be delivered in connection
therewith.
(c) Facility Termination Date. The Facility Termination Date shall
not have occurred.
(d) Minimum Advance Amount. The amount of such Advance is not less
than $1,000,000.
(e) Collateral Receipt/Receipt Certification. The Agent shall have
received either a Collateral Receipt or a Receipt Certification in respect
of each Receivable identified as an "Eligible Receivable" in the Borrowing
Base Confirmation to be delivered pursuant to Section 7.2(f) below.
(f) Borrowing Base Confirmation. The Agent shall have received a
Borrowing Base Confirmation.
(g) Insurer Downgrade. The Insurer Downgrade Date shall not have
occurred.
ARTICLE III
ADMINISTRATION AND SERVICING OF RECEIVABLES
SECTION 8.1 Duties of the Servicer. The Servicer is hereby authorized to
act for the Borrower and in such capacity shall manage, service, administer and
make collections on the Transferred Receivables, and perform the other actions
required by the Servicer under this Agreement for the benefit of the Investors.
The Servicer agrees that its servicing of the Transferred Receivables shall be
carried out in accordance with customary and usual procedures of institutions
which service motor vehicle retail installment sales contracts and, to the
extent more exacting, the degree of skill and attention that the Servicer
exercises from time to time with respect to all comparable motor vehicle
receivables that it services for itself or others in accordance with ACC's
Servicing Procedures Manual as in effect from time to time for servicing all its
other comparable motor vehicle receivables. The Servicer's duties shall include,
without
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limitation, collection and posting of all payments, responding to inquiries of
Obligors on the Transferred Receivables, investigating delinquencies, sending
payment statements to Obligors, reporting any required tax information to
Obligors, policing the collateral, complying with the terms of the Lockbox
Agreement, accounting for collections and furnishing monthly and annual
statements to the Agent and the Insurer with respect to distributions,
monitoring the status of Insurance Policies with respect to the Financed
Vehicles and performing the other duties specified herein. The Servicer shall
also administer and enforce all rights and responsibilities of the holder of the
Transferred Receivables provided for in the Dealer Agreements (and shall
maintain possession of the Dealer Agreements, to the extent it is necessary to
do so), the Dealer Assignments and the Insurance Policies, to the extent that
such Dealer Agreements, Dealer Assignments and Insurance Policies relate to the
Transferred Receivables, the Financed Vehicles or the Obligors.
To the extent consistent with the standards, policies and procedures
otherwise required hereby, the Servicer shall follow its customary standards,
policies, and procedures and shall have full power and authority, acting alone,
to do any and all things in connection with such managing, servicing,
administration and collection that it may deem necessary or desirable. Without
limiting the generality of the foregoing, the Servicer is hereby authorized and
empowered by the Borrower to execute and deliver, on behalf of the Borrower, the
Insurer, the Investors, the Custodian or any of them, any and all instruments of
satisfaction or cancellation, or of partial or full release or discharge, and
all other comparable instruments, with respect to the Transferred Receivables
and with respect to the Financed Vehicles; provided, however, that
notwithstanding the foregoing, the Servicer shall not, except pursuant to an
order from a court of competent jurisdiction, release an Obligor from payment of
any unpaid amount under any Transferred Receivable or waive the right to collect
the unpaid balance of any Transferred Receivable from the Obligor, except that
the Servicer may forego collection efforts if the amount subject to collection
is de minimis and if it would forego collection in accordance with its customary
procedures. The Servicer is hereby authorized to commence, in its own name or in
the name of the Borrower, the Custodian and the Investors (provided the Servicer
has obtained the Borrower's, the Custodian's and the Agent's consent, as the
case may be, which consent shall not be unreasonably withheld), a legal
proceeding to enforce a Transferred Receivable pursuant to Section 8.3 or to
commence or participate in any other legal proceeding (including, without
limitation, a bankruptcy proceeding) relating to or involving a Transferred
Receivable, an Obligor or a Financed Vehicle. If the Servicer commences or
participates in such a legal proceeding in its own name, the Borrower, the
Custodian or the Investors, as the case may be, shall thereupon be deemed to
have automatically assigned such Transferred Receivable to the Servicer solely
for purposes of commencing or participating in any such proceeding as a party or
claimant, and the
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Servicer is authorized and empowered by the Borrower, the Custodian or the
Investors, as the case may be, to execute and deliver in the Servicer's name any
notices, demands, claims, complaints, responses, affidavits or other documents
or instruments in connection with any such proceeding. The Borrower, the
Custodian or the Investors, as the case may be, shall furnish the Servicer with
any powers of attorney and other documents which the Servicer may reasonably
request in writing and which the Servicer deems necessary or appropriate and
take any other steps which the Servicer may deem necessary or appropriate to
enable the Servicer to carry out its servicing and administrative duties under
this Agreement.
SECTION 8.2 Collection of Receivable Payments; Modification and Amendment
of Receivables; Lockbox Agreements. (a) Consistent with the standards, policies
and procedures required by this Agreement, the Servicer shall make reasonable
efforts to collect all payments called for under the terms and provisions of the
Transferred Receivables as and when the same shall become due, and shall follow
such collection procedures as it follows with respect to all comparable
automobile receivables that it services for itself or others and otherwise act
with respect to the Transferred Receivables, the Dealer Agreements, the Dealer
Assignments and the Insurance Policies in such manner as will, in the reasonable
judgment of the Servicer, maximize the amount to be received by the Borrower and
the Investors with respect thereto. The Servicer is authorized in its discretion
to waive any prepayment charge, late payment charge or any other similar fees
that may be collected in the ordinary course of servicing any Transferred
Receivable.
(b) The Servicer may at any time agree to a modification or
amendment of a Transferred Receivable in order to (i) change the Obligor's
regular due date to a date within 30 days in which such due date occurs,
(ii) re-amortize the scheduled payments on the Transferred Receivable
following a partial prepayment of principal or (iii) convert a Rule of 78s
Receivable to a Simple Interest Receivable.
(c) The Servicer may grant payment extensions on, or other
modifications or amendments to, a Transferred Receivable (including those
modifications permitted by Section 8.2(b)) in accordance with its
customary procedures if the Servicer believes in good faith that such
extension, modification or amendment is necessary to avoid a default on
such Transferred Receivable, will maximize the amount to be received by
the Borrower and the Investors with respect to such Transferred
Receivable, and is otherwise in the best interests of the Borrower and the
Investors; provided, however, that:
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(i) the aggregate period of all extensions on a Transferred
Receivable shall not exceed two months;
(ii) any such extension shall not extend beyond 75 months
after the Facility Termination Date;
(iii) the Servicer shall not amend or modify a Transferred
Receivable (except as provided in Section 8.2(b) and this Section
8.2(c)) without the written consent of the Controlling Party; and
(iv) so long as an Insurer Default shall not have occurred and
be continuing, the term of each Transferred Receivable may only be
extended once.
(d) The Servicer shall use its best efforts to cause Obligors to
make all payments on the Transferred Receivables, whether by check or by
direct debit of the Obligor's bank account, to be made directly to one or
more Lockbox Banks, acting as agent for the Investors pursuant to a
Lockbox Agreement. Amounts received by a Lockbox Bank in respect of the
Transferred Receivables may initially be deposited into a demand deposit
account maintained by the Lockbox Bank as agent for the Investors and for
other owners of automobile receivables serviced by the Servicer. The
Lockbox Banks shall, pursuant to the Lockbox Agreement, deposit all
payments on the Transferred Receivables in the Lockbox Account no later
than the Business Day after receipt and transfer all amounts credited to
the Lockbox Account on account of such payments to the Collection Account,
no later than the second Business Day after receipt of such payments. The
Lockbox Account shall be a demand deposit account held by the Lockbox
Bank, or at the request of the Controlling Party, an Eligible Account
satisfying clause (i) of the definition thereof. Any payments on the
Transferred Receivables inadvertently received by the Servicer shall be
deposited directly into the Collection Account no later than the second
Business Day after receipt of such payments.
Prior to the Closing Date, the Servicer shall have notified each Obligor
that makes its payments on the Transferred Receivables by check to make such
payments thereafter directly to the Lockbox Bank (except in the case of Obligors
that have already been making such payments to the Lockbox Bank).
Notwithstanding any Lockbox Agreement, or any of the provisions of this
Agreement relating to the Lockbox Agreement, the Servicer shall remain obligated
and
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liable to the Investors for servicing and administering the Transferred
Receivables in accordance with the provisions of this Agreement without
diminution of such obligation or liability by virtue thereof.
In the event the Servicer shall for any reason no longer be acting as
such, the Backup Servicer or successor Servicer shall thereupon assume all of
the rights and, from the date of assumption, all of the obligations of the
outgoing Servicer under the Lockbox Agreement. The Backup Servicer or any other
successor Servicer shall not be liable for any acts, omissions or obligations of
the Servicer prior to such succession. In such event, the successor Servicer
shall be deemed to have assumed all of the outgoing Servicer's interest therein
and to have replaced the outgoing Servicer as a party to each such Lockbox
Agreement to the same extent as if such Lockbox Agreement had been assigned to
the successor Servicer, except that the outgoing Servicer shall not thereby be
relieved of any liability, or obligations on the part of the outgoing Servicer
to the Lockbox Bank under such Lockbox Agreement. The outgoing Servicer shall,
upon request of the Agent, but at the expense of the outgoing Servicer, deliver
to the successor Servicer all documents and records relating to each such
Agreement and an accounting of amounts collected and held by the Lockbox Bank
and otherwise use its best efforts to effect the orderly and efficient transfer
of any Lockbox Agreement to the successor Servicer. In the event that the
Controlling Party elects to change the identity of the Lockbox Bank, the
Servicer, at its expense, shall cause the Lockbox Bank to deliver, at the
direction of the Controlling Party, the Agent or a successor Lockbox Bank, all
documents and records relating to the Transferred Receivables and all amounts
held (or thereafter received) by the Lockbox Bank (together with an accounting
of such amounts) and shall otherwise use its best efforts to effect the orderly
and efficient transfer of the lockbox arrangements and the Servicer shall notify
the Obligors to make payments to the Lockbox Account established by the
successor.
(e) The Servicer shall remit all payments by or on behalf of the
Obligors received directly by the Servicer to the Collection Account,
without deposit into any intervening account as soon as practicable, but
in no event later than the Business Day after receipt thereof.
SECTION 8.3 Realization Upon Receivables. (a) Consistent with the
standards, policies and procedures required by this Agreement, the Servicer
shall use its best efforts to repossess (or otherwise comparably convert the
ownership of) and liquidate any Financed Vehicle securing a Transferred
Receivable with respect to which the Servicer has determined that payments
thereunder are not likely to be resumed, as soon as is practicable after default
on such Transferred Receivable but in no event later than the date on which
ninety percent or more of a Scheduled Payment has become 120 or more days
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delinquent. The Servicer is authorized to follow such customary practices
and procedures as it shall deem necessary or advisable, consistent with the
standard of care required by Section 8.1, which practices and procedures may
include reasonable efforts to realize upon any recourse to Dealers, selling the
related Financed Vehicle at public or private sale, the submission of claims
under an Insurance Policy and other actions by the Servicer in order to realize
upon such Transferred Receivable. The foregoing is subject to the provision
that, in any case in which the Financed Vehicle shall have suffered damage, the
Servicer shall not expend funds in connection with any repair or towards the
repossession of such Financed Vehicle unless it shall determine in its
discretion that such repair and/or repossession shall increase the proceeds of
liquidation of the related Transferred Receivable by an amount greater than the
amount of such expenses. All amounts received upon liquidation of a Financed
Vehicle shall be remitted directly by the Servicer to the Collection Account
without deposit into any intervening account as soon as practicable, but in no
event later than the Business Day after receipt thereof. The Servicer shall be
entitled to recover all reasonable expenses incurred by it in the course of
repossessing and liquidating a Financed Vehicle, but only out of the cash
proceeds of such Financed Vehicle, any deficiency obtained from the Obligor or
any amounts received from the related Dealer, which amounts may be retained by
the Servicer (and shall not be required to be deposited in the Collection
Account) to the extent of such expenses. The Servicer shall not be permitted to
retain any such expenses in excess of the amounts specified as part of the
information contained in the Servicer's Certificate delivered on the next
succeeding Determination Date. The Servicer shall pay on behalf of the Borrower
any personal property taxes assessed on repossessed Financed Vehicles; the
Servicer shall be entitled to reimbursement of any such tax from Liquidation
Proceeds with respect to such Transferred Receivable.
(b) If the Servicer elects to commence a legal proceeding to enforce
a Dealer Agreement or Dealer Assignment, the act of commencement shall be
deemed to be an automatic assignment from the Borrower and [the Custodian]
to the Servicer of the rights under such Dealer Agreement and Dealer
Assignment for purposes of collection only. If, however, in any
enforcement suit or legal proceeding, it is held that the Servicer may not
enforce a Dealer Agreement or Dealer Assignment on the grounds that it is
not a real party in interest or a Person entitled to enforce the Dealer
Agreement or Dealer Assignment, the Borrower, at the Servicer's expense,
shall take such steps as the Servicer deems necessary to enforce the
Dealer Agreement or Dealer Assignment, including bringing suit in its
name. All amounts recovered shall be remitted directly by the Servicer to
the Collection Account without deposit into any intervening account as
soon as practicable, but in no event later than the Business Day after
receipt thereof.
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SECTION 8.4 Insurance. (a) The Servicer shall monitor the status of the
Insurance Policies in accordance with its customary servicing procedures. If the
Servicer shall determine that an Obligor has failed to obtain or maintain a
physical loss and damage insurance policy covering the related Financed Vehicle
which satisfies the conditions set forth in subsection (x) of the definition of
"Eligible Receivable" (including during the repossession of such Financed
Vehicle) the Servicer shall be diligent in carrying on its customary servicing
procedures to enforce the rights of the holder of the Receivable thereunder to
ensure that the Obligor obtains such physical loss and damage insurance.
(b) The Servicer may xxx to enforce or collect upon the Insurance
Policies, in its own name, if possible, or as agent of the Borrower and
the Investors. If the Servicer elects to commence a legal proceeding to
enforce an Insurance Policy, the act of commencement shall be deemed to be
an automatic assignment of the rights of the Borrower, the Custodian and
the Investors under such Insurance Policy to the Servicer for purposes of
collection only. If, however, in any enforcement suit or legal proceeding
it is held that the Servicer may not enforce an Insurance Policy on the
grounds that it is not a real party in interest or a holder entitled to
enforce the Insurance Policy, the Borrower shall take such steps as the
Servicer deems necessary to enforce such Insurance Policy, including
bringing suit in its name.
SECTION 8.5 Maintenance of Security Interests in Financed Vehicles. (a)
Consistent with its obligations under this Agreement and the Custodial
Agreement, the Servicer shall take such steps as are necessary to maintain
perfection of the security interest created by each Transferred Receivable in
the related Financed Vehicle on behalf of the Borrower and the Secured Parties,
including but not limited to obtaining the execution by the Obligors and the
recording, registering, filing, re-recording, re-filing, and re-registering of
all security agreements, financing statements and continuation statements as are
necessary to maintain the security interest granted by the Obligors under the
respective Receivables. The Borrower and the Secured Parties each hereby
authorizes the Servicer, and the Servicer agrees, to take any and all steps
necessary to re-perfect such security interest on behalf of the Borrower and the
Secured Parties as necessary because of the relocation of a Financed Vehicle or
for any other reason. In the event that the assignment of a Transferred
Receivable to the Borrower and the Secured Parties is insufficient, without a
notation on the related Financed Vehicle's certificate of title, or without
fulfilling any additional administrative requirements under the laws of the
state in which the Financed Vehicle is located, to perfect a security interest
in the related Financed Vehicle in favor of the Borrower and the Secured
Parties, the parties hereto agree that OFL-A's, American Credit Corporation's
(in its capacity as predecessor to
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ACC) or ACC's or ACC's d/b/a Accent Financial Services (both in its individual
capacity and as the successor to American Credit Corporation) designation as the
secured party on the certificate of title is, with respect to each secured
party, as applicable, in its capacity as agent of the Borrower and the Secured
Parties.
(b) Upon the occurrence of an Insurance Agreement Event of Default,
the Controlling Party may instruct the Borrower and the Servicer to take
or cause to be taken such action as may, in the opinion of counsel to the
Controlling Party, be necessary or desirable to perfect or re-perfect the
security interests in the Financed Vehicles securing the Transferred
Receivables in the name of the Borrower and the Custodian by amending the
title documents of such Financed Vehicles or by such other reasonable
means as may, in the opinion of counsel to the Controlling Party, be
necessary or prudent. The Borrower hereby agrees to pay all expenses
related to such perfection or re-perfection and to take all action
necessary therefor; provided, however, that if the Insurer requests that
the title documents be amended prior to the occurrence of an Insurance
Agreement Event of Default, the out-of-pocket expenses of the Servicer,
the Borrower and the Custodian in connection with such action shall be
reimbursed to the Servicer, the Borrower or the Custodian, as applicable,
by the Insurer.
SECTION 8.6 Covenants, Representations and Warranties of Servicer. The
Servicer hereby makes the following representations, warranties and covenants to
the other parties hereto and the Insurer on which the Lenders shall rely in
making the Advances and on which the Insurer shall rely in issuing the Policy.
(a) The Servicer covenants to the Borrower, the Agent, the Investors
and the Insurer as follows:
(i) Liens in Force. The Financed Vehicle securing each
Transferred Receivable shall not be released in whole or in part
from the security interest granted by such Receivable, except upon
payment in full of such Receivable or as otherwise contemplated
herein;
(ii) No Impairment. The Servicer shall do nothing to impair
the rights of the Borrower, the Investors or the Insurer in the
Transferred Receivables, the Dealer Agreements, the Dealer
Assignments or the Insurance Policies;
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(iii) No Amendments. The Servicer shall not extend or
otherwise amend the terms of any Transferred Receivable, except in
accordance with Section 8.2;
(iv) Servicing of Receivables. The Servicer shall service the
Transferred Receivables as required by the terms of this Agreement
and in material compliance with the current Servicing Procedures
Manual for servicing all its other comparable motor vehicle
receivables and the Servicer shall not change the manner in which it
services the Receivables in any way that can have an adverse effect
on the Receivables;
(v) Compliance with Laws. The Servicer shall comply with the
laws of each state in which a Transferred Receivable is located,
including, without limitation, all federal and state laws regarding
the collection and enforcement of consumer debt;
(vi) Notice of Relocation. The Servicer shall give the Agent
at least 60 days prior written notice of any relocation of its
principal executive office if, as a result of such relocation, the
applicable provisions of the UCC would require the filing of any
amendment of any previously filed financing or continuation
statement or of any new financing statement. The Servicer shall at
all times maintain each office from which it services the Collateral
and its principal executive office within the United States of
America;
(vii) Maintenance of Computer Systems, etc. The Servicer shall
maintain its computer systems so that, from and after the time of
the first Advance under this Agreement, the Servicer's master
computer records (including archives) that shall refer to the
Collateral indicate clearly that such Collateral is subject to first
priority security interest in favor of the Custodian, for the
benefit of the Secured Parties. Indication of the Custodian's
security interest shall be deleted from or modified on the
Servicer's computer systems when, and only when, the Collateral in
question shall have been paid in full; and
(viii) Other Sales, Grants or Transfers. If at any time the
Servicer shall propose to sell, grant a security interest in, or
otherwise transfer any interest in motor vehicle receivables to any
prospective purchaser, lender or other transferee, the Servicer
shall give to such prospective purchaser, lender, or other
transferee computer tapes, records, or print-outs (including any
restored from archives) that, if they shall refer in any manner
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whatsoever to any Collateral shall indicate clearly that such
Collateral is subject to a first priority security interest in favor
of the Custodian.
(b) The Servicer represents and warrants to the Borrower, the Agent,
the Investors and the Insurer, as of the Closing Date as to itself that:
(i) Organization and Good Standing. The Servicer has been duly
organized and is validly existing and in good standing under the
laws of the State of Delaware, with power, authority and legal right
to own its properties and to conduct its business as such properties
are currently owned and such business is currently conducted, and
had at all relevant times, and now has, power, authority and legal
right to enter into and perform its obligations under this
Agreement;
(iii) Due Qualification. The Servicer is duly qualified to do
business as a foreign corporation in good standing, and has obtained
all necessary licenses and approvals, in all jurisdictions in which
the ownership or lease of property or the conduct of its business
(involving the servicing of the Transferred Receivables as required
by this Agreement) requires or shall require such qualification;
(iii) Power and Authority. The Servicer has the power and
authority to execute and deliver this Agreement and the Transaction
Documents to which it is a party and to carry out its terms and
their terms, respectively, and the execution, delivery and
performance of this Agreement and the Transaction Documents to which
it is a party have been duly authorized by the Servicer by all
necessary corporate action;
(iv) Binding Obligation. This Agreement and the Transaction
Documents to which it is a party shall constitute legal, valid and
binding obligations of the Servicer enforceable in accordance with
their respective terms, except as enforceability may be limited by
bankruptcy, insolvency, reorganization, or other similar laws
affecting the enforcement of creditors' rights generally and by
equitable limitations on the availability of specific remedies,
regardless of whether such enforceability is considered in a
proceeding in equity or at law;
(v) No Violation. The consummation of the transactions
contemplated by this Agreement and the Transaction Documents to
which it is a party, and the fulfillment of the terms of this
Agreement and the
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Transaction Documents to which it is a party, shall not conflict
with, result in any breach of any of the terms and provisions of, or
constitute (with or without notice or lapse of time) a default
under, the certificate of incorporation or bylaws of the Servicer,
or any indenture, agreement, mortgage, deed of trust or other
instrument to which the Servicer is a party or by which it is bound
or any of its properties are subject, or result in the creation or
imposition of any Lien upon any of its properties pursuant to the
terms of any such indenture, agreement, mortgage, deed of trust or
other instrument, other than this Agreement, or violate any law,
order, rule or regulation applicable to the Servicer of any court or
of any federal or state regulatory body, administrative agency or
other governmental instrumentality having jurisdiction over the
Servicer or any of its properties, or in any way materially
adversely affect the interest of the Borrower, the Investors or the
Insurer in any Transferred Receivable, or affect the Servicer's
ability to perform its obligations under this Agreement;
(vi) No Proceedings. There are no proceedings or
investigations pending or, to the Servicer's knowledge, threatened
against the Servicer, before any court, regulatory body,
administrative agency or other tribunal or governmental
instrumentality having jurisdiction over the Servicer or its
properties (A) asserting the invalidity of this Agreement or any of
the Transaction Documents, (B) seeking to prevent the consummation
of any of the transactions contemplated by this Agreement or any of
the Transaction Documents, (C) seeking any determination or ruling
that might materially and adversely affect the performance by the
Servicer of its obligations under, or the validity or enforceability
of, this Agreement or any of the Transaction Documents, or (D) that
could have a material adverse effect on the Transferred Receivables;
(vii) Approvals. All approvals, authorizations, consents,
orders or other actions of any person, corporation or other
organization, or of any court, governmental agency or body or
official, required in connection with the execution and delivery by
the Servicer of this Agreement and the consummation of the
transactions contemplated hereby have been or will be taken or
obtained on or prior to the Closing Date;
(vii) No Consents. The Servicer is not required to obtain the
consent of any other party or any consent, license, approval or
authorization, or registration or declaration with, any governmental
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authority, bureau or agency in connection with the execution,
delivery, performance, validity or enforceability of this Agreement;
and
(ix) Chief Executive Office. The chief executive office of ACC
is located at 00000 Xxxx Xxxxx Xxxxx, Xxxxx 000, Xxx Xxxxx,
Xxxxxxxxxx 00000.
SECTION 8.7 Purchase of Receivables Upon Breach of Covenant or
Representation and Warranty. The Borrower or the Servicer, as the case may be,
shall inform the other parties to this Agreement and the Insurer promptly, in
writing, upon the discovery of any breach of the Servicer's representations and
warranties and covenants pursuant to Section 8.5(a) or 8.6; provided, however,
that the failure to give any such notice shall not derogate from any obligation
of the Servicer hereunder to repurchase any Transferred Receivable; provided,
further that, the Backup Servicer shall have no duty to inquire into or to
investigate the breach of any such representations and warranties and covenants.
Unless the breach shall have been cured by the last day of the first full
calendar month following the discovery by or notice to the Servicer of the
breach, the Servicer shall have an obligation, and the Borrower and the Agent
shall (provided that it either has made such discovery or has received such
notice thereof) enforce such obligation of the Servicer, to repurchase any
Transferred Receivable materially and adversely affected by the breach. The
Borrower shall notify the Agent and the Insurer promptly, in writing, of any
failure by the Servicer to so repurchase any Transferred Receivable. In
consideration of the purchase of the Transferred Receivable, the Servicer shall
remit the Purchase Amount in the manner specified in Section 8.8(b).
In addition to the foregoing and notwithstanding whether the related
Transferred Receivable shall have been purchased by the Servicer, the Servicer
shall indemnify the Backup Servicer, the Insurer, the Borrower, the Agent and
the Investors against all costs, expenses, losses, damages, claims and
liabilities, including reasonable fees and expenses of counsel, which may be
asserted against or incurred by any of them as a result of third party claims
arising out of the events or facts giving rise to a breach of the covenants or
representations and warranties set forth in Section 8.5(a) or 8.6.
SECTION 8.8 Total Servicing Fee; Payment of Certain Expenses by Servicer.
(a) Subject to, and in accordance with, the provisions of the Custodial
Agreement, on each Distribution Date, the Servicer shall be entitled to receive
out of the Collection Account the Servicing Fee for the related Collection
Period.
(b) The Servicer shall be required to pay all expenses incurred by
it in connection with its activities under this Agreement (including taxes
imposed on the Servicer and the Insurer). The Servicer shall be liable for
the fees and
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expenses of the Backup Servicer, the Lockbox Bank (and any fees under the
Lockbox Agreement) and the Independent Accountants.
SECTION 8.9 Servicer's Certificate. (a) No later than 10:00 a.m. New York
City time on each Determination Date, the Servicer shall deliver to the Backup
Servicer, the Insurer, the Borrower and the Agent a Servicer's Certificate
executed by a Responsible Officer of the Servicer in the form attached hereto as
Exhibit E. Transferred Receivables purchased by the Servicer or ACC and each
Transferred Receivable which became a Liquidated Receivable or which was paid in
full during the related Collection Period shall be identified by account number
(as set forth in the Schedule of Receivables).
(b) In addition to the information required by Section 8.9(a), the
Servicer shall include in the copy of the Servicer's Certificate delivered
to the Insurer, the Borrower and the Agent (i) whether any Event of
Default or Unmatured Event of Default has occurred as of such
Determination Date, (ii) whether any Event of Default or Unmatured Event
of Default that may have occurred as of a prior Determination Date is
deemed cured as of such Determination Date, and (iii) whether to the
knowledge of the Servicer an Insurance Agreement Event of Default has
occurred.
SECTION 8.10 Annual Statement as to Compliance; Notice of Servicer
Termination Event. (a) The Servicer shall deliver to the Backup Servicer, the
Insurer, the Borrower, and the Agent, on or before December 31 (or 90 days after
the end of the Servicer's fiscal year, if other than December 31) of each year,
beginning on the first December 31 (or other applicable date) next following the
date that is six months after the Closing Date, an Officer's Certificate, dated
as of December 31 (or other applicable date) of such year, stating that (i) a
review of the activities of the Servicer during the preceding 12-month period
(or such other period as shall have elapsed from the Closing Date to the date of
the first such certificate) and of its performance under this Agreement has been
made under such officer's supervision, and (ii) to such officer's knowledge,
based on such review, the Servicer has fulfilled all its obligations under this
Agreement throughout such period, or, if there has been a default in the
fulfillment of any such obligation, specifying each such default known to such
officer and the nature and status thereof.
(b) The Servicer shall deliver to the Backup Servicer, the Insurer,
the Borrower and the Agent, promptly after having obtained knowledge
thereof, but in no event later than two Business Days thereafter, written
notice in an Officer's Certificate of any event which with the giving of
notice or lapse of time, or both, would become a Servicer Termination
Event under Section 13.1. The Borrower or the Servicer shall deliver to
the Backup Servicer, the Insurer, the Borrower and the
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Agent promptly after having obtained knowledge thereof, but in no event
later than two Business Days thereafter, written notice in an Officer's
Certificate of any event which with the giving of notice or lapse of time,
or both, would become a Servicer Termination Event under Section 13.1.
SECTION 8.11 Annual Independent Accountants' Report. (a) The Servicer
shall, at its expense, cause a firm of nationally recognized independent
certified public accountants acceptable to the Insurer (as long as no Insurer
Default has occurred and is continuing), the Agent (and upon which the
Controlling Party may rely) (the "Independent Accountants"), who may also render
other services to the Servicer or to the Borrower to deliver to the Borrower,
the Agent, the Backup Servicer and the Insurer, on or before March 31 (or 90
days after the end of the Servicer's fiscal year, if other than December 31) of
each year, beginning on the first March 31 (or other applicable date) after the
date that is six months after the Closing Date (but in no event later than March
31, 1998), with respect to the twelve months ended the immediately preceding
December 31 (or other applicable date) (or such other period as shall have
elapsed from the Closing Date to the date of such certificate), a statement (the
"Accountants' Report") addressed to the Board of Directors of the Servicer, to
the Agent, to the Backup Servicer and to the Insurer, to the effect that such
firm has audited the financial statements of the Servicer and has examined the
Servicer's Certificates and issued its report thereon and that such
audit/examination (1) was made in accordance with generally accepted auditing
standards, and accordingly included such tests of the accounting records and
such other auditing procedures as such firm considered necessary in the
circumstances; (2) included an examination of documents and records relating to
the servicing of automobile installment sales contracts under pooling and
servicing agreements substantially similar one to another (such statement to
have attached thereto a schedule setting forth the pooling and servicing
agreements covered thereby, including this Agreement); (3) included an
examination of the delinquency and loss statistics relating to the Servicer's
and the Borrower's portfolio of automobile installment sales contracts; (4)
included tests relating to auto loans serviced for others in accordance with the
requirements of the Uniform Single Audit Program for Mortgage Bankers (the
"Program"), to the extent the procedures in the Program are applicable to the
servicing obligations set forth in this Agreement; and (5) except as described
in the report, disclosed no exceptions or errors in the records relating to
automobile and light truck loans serviced for others that, in the firm's
opinion, generally accepted auditing standards or paragraph four of the Program
requires such firm to report. The Accountants' Report shall further state that
(1) a review in accordance with agreed upon procedures was made of three
randomly selected Servicer's Certificates; (2) except as disclosed in the
Accountant's Report, no exceptions or errors in the Servicer's Certificates so
examined were found; (3) the delinquency and loss information relating to the
Transferred Receivables contained in the Servicer
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Certificates were found to be accurate; and (4) except for (i) such exceptions
as the Independent Accountants believe to be immaterial, and (ii) such other
exceptions as shall be set forth in the Accountants' Report, the Independent
Accountants have examined the Servicer's Certificates delivered during the
previous calendar year and such records relating to the Transferred Receivables
as the Independent Accountants deem necessary as a basis for the Accountants'
Report.
(b) The Accountants' Report shall also indicate that the firm is
independent of the Borrower and the Servicer within the meaning of the
Code of Professional Ethics of the American Institute of Certified Public
Accountants.
SECTION 8.12 Access to Certain Documentation and Information Regarding
Receivables. The Servicer shall provide to representatives of the Backup
Servicer, the Borrower, the Agent and the Insurer reasonable access to the
documentation regarding the Transferred Receivables including, without
limitation, copies of the Dealer Underwriting Guides and the Servicing
Procedures Manual. Nothing in this Section 8.12 shall derogate from the
obligation of the Servicer to observe any applicable law prohibiting disclosure
of information regarding the Obligors, and the failure of the Servicer to
provide access as provided in this Section 8.12 as a result of such obligation
shall not constitute a breach of this Section 8.12.
SECTION 8.13 Monthly Tape. On or before the fourth Business Day, but in no
event later than the fifth calendar day, of each month, the Servicer will
deliver to the Backup Servicer a computer tape and a diskette (or any other
electronic transmission acceptable to the Backup Servicer) in a format
acceptable to the Backup Servicer containing the information with respect to the
Transferred Receivables as of the last day of the immediately preceding calendar
month necessary for preparation of the Servicer's Certificate relating to the
immediately succeeding Determination Date and necessary to determine the
application of collections as provided in the Custodial Agreement. The Backup
Servicer shall use such tape or diskette (or other electronic transmission
acceptable to the Backup Servicer) to verify the Servicer's Certificate
delivered by the Servicer, and in the event that the Backup Servicer discovers a
discrepancy or discrepancies, the Backup Servicer shall certify to the Agent and
the Insurer that it has verified the Servicer's Certificate in accordance with
this Section 8.13 and shall notify the Servicer, the Agent and the Insurer of
any such discrepancies, in each case, on or before the second Business Day
following the Determination Date. In the event that the Backup Servicer reports
any discrepancies, the Servicer and the Backup Servicer shall attempt to
reconcile such discrepancies prior to the related Distribution Date, but in the
absence of a reconciliation, the Servicer's Certificate shall control for the
purpose of calculations and distributions with respect to the related
Distribution Date. In the event that the Backup
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Servicer and the Servicer are unable to reconcile discrepancies with respect to
a Servicer's Certificate by the related Distribution Date, the Servicer shall
cause the Independent Accountants, at the Servicer's expense, to audit the
Servicer's Certificate and, prior to the fourth Business Day, but in no event
later than the fifth calendar day, of the following month, reconcile the
discrepancies. The effect, if any, of such reconciliation shall be reflected in
the Servicer's Certificate for such next succeeding Determination Date.
In addition, the Servicer shall, if so requested by the Controlling Party
or the Agent, deliver to the Backup Servicer its Collection Records and its
Monthly Records within one Business Day of demand therefor and a computer tape
containing as of the close of business on the date of demand all of the data
maintained by the Servicer in computer format in connection with servicing the
Transferred Receivables.
Other than the duties specifically set forth in this Agreement, the Backup
Servicer shall have no obligations hereunder, including, without limitation, to
supervise, verify, monitor or administer the performance of the Servicer. The
Backup Servicer shall have no liability for any actions taken or omitted by the
Servicer. The duties and obligations of the Backup Servicer shall be determined
solely by the express provisions of this Agreement and no implied covenants or
obligations shall be read into this Agreement against the Backup Servicer.
SECTION 8.14 Retention of Servicer. ACC hereby covenants and agrees to act
as such under this Agreement for an initial term, commencing on the Closing Date
and ending on June 30, 1997, which term shall be extendible by the Controlling
Party for successive quarterly terms ending on each successive December 31,
March 31, June 30 and September 30 (or, pursuant to revocable written standing
instructions from time to time to the Servicer, for any specified number of
terms greater than one). Each such notice (including each notice pursuant to
standing instructions, which shall be deemed delivered at the end of successive
quarterly terms for so long as such instructions are in effect) (a "Servicer
Extension Notice") shall be delivered by the Controlling Party to the Servicer.
ACC hereby agrees that, as of the date hereof and upon its receipt of any such
Servicer Extension Notice, ACC shall become bound, for the initial term
beginning on the date hereof and for the duration of the term covered by such
notice, to continue as the Servicer subject to and in accordance with the other
provisions of this Agreement.
SECTION 8.15 Fidelity Bond. The Servicer shall maintain a fidelity bond in
such form and amount as is customary for entities acting as custodian of funds
and documents in respect of consumer contracts on behalf of institutional
investors.
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SECTION 8.16 Insurance. The Servicer shall maintain customary
amounts of insurance coverage, including, without limitation, coverage for fire,
theft, workers compensation and servicer liability arising from the collection
of Transferred Receivables. The Servicer shall be entitled to self-insure with
respect to such insurance so long as the long-term unsecured debt obligations of
the Servicer are rated in the second highest long-term debt category by each of
the Rating Agencies.
SECTION 8.17 Accounts. (a) The Servicer shall establish the
Collection Account in the name of the Custodian for the benefit of the Secured
Parties. The Collection Account shall be an Eligible Account and initially shall
be a segregated trust account established and maintained with the Custodian.
(b) The Servicer shall establish the Liquidity Account in the name
of the Custodian for the Benefit of the Secured Parties. The Liquidity
Account shall be an Eligible Account and initially shall be a segregated
trust account established and maintained with the Custodian.
(c) The Servicer shall establish the Collateral Account in the name
of the Custodian for the benefit of the Secured Parties. The Collateral
Account shall be an Eligible Account and initially shall be a segregated
trust account established and maintained with the Custodian.
(d) The Custodian shall deposit to the Collateral Account any amount
delivered to it by the Borrower and designated to be deposited in the
Collateral Account. The Custodian shall withdraw and pay to the Borrower
upon the Borrower's request, any amount on deposit in the Collateral
Account, provided, that following such withdrawal, no Borrowing Base
Deficiency shall result.
SECTION 8.18 Collections. (a) Pursuant to the Lockbox Agreements, the
Lockbox Banks shall remit to the Collection Account within two Business Days of
receipt thereof (i) all payments by or on behalf of the Obligors and (ii) all
Liquidation Proceeds, each as collected during the Collection Period. In
addition, the Servicer shall remit all payments by or on behalf of the Obligors
received by the Servicer with respect to the Receivables (other than Purchased
Receivables), and all Liquidation Proceeds, no later than the Business Day
following receipt directly (without deposit into any intervening account) into
the Collection Account.
(b) The Servicer will be entitled to be reimbursed from amounts on
deposit in the Collection Account with respect to a Collection Period for
amounts previously deposited in the Collection Account but later
determined by the
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Servicer or the Lockbox Bank to have resulted from mistaken deposits or
postings or checks returned for insufficient funds. The amount to be
reimbursed hereunder shall be paid to the Servicer on the related
Distribution Date upon certification by the Servicer of such amounts and
the provision of such information to the Custodian, the Agent and the
Insurer as may be necessary in the opinion of the Agent and the Insurer to
verify the accuracy of such certification. In the event that the Agent and
the Insurer have not received evidence satisfactory to it of the
Servicer's entitlement to reimbursement pursuant to this Section 8.18(b),
the Insurer or the Agent shall give the Custodian notice to such effect,
following receipt of which the Custodian shall not make a distribution to
the Servicer in respect of such amount, or if the Servicer prior thereto
has been reimbursed, the Custodian shall withhold such amounts from
amounts otherwise distributable to the Servicer on the next succeeding
Distribution Date.
SECTION 8.19 Application of Collections. For the purposes of this
Agreement, all collections for a Collection Period shall be applied by the
Servicer with respect to each Transferred Receivable (other than a Purchased
Receivable) as follows: (i) in the case of a Rule of 78s Receivable, first, with
respect to the Scheduled Payment of such Rule of 78s Receivable, to interest and
principal in accordance with the actuarial method, and, second, to any late fees
accrued with respect to such Rule of 78s Receivable, and (ii) in the case of a
Simple Interest Receivable, to interest and principal in accordance with the
Simple Interest Method. With respect to Simple Interest Receivables, any
prepayment of principal during each Collection Period shall be immediately
applied to reduce the principal balance of such Receivable during such
Collection Period. Notwithstanding any of the foregoing provisions of this
Section 8.19, if application of any payment made with respect to a Rule of 78s
Receivable to prepay such Rule of 78s Receivable as provided above would reduce
the principal balance of such Rule of 78s Receivable to zero, only the portion
of such payment that reduces the principal balance of such Rule of 78s
Receivable to zero shall be applied to prepay such Rule of 78s Receivable. Any
remaining portion of such payment and any payments made thereafter with respect
to such Rule of 78s Receivable shall be paid to the Servicer as additional
servicing compensation.
ARTICLE IX
GRANT OF SECURITY INTERESTS
SECTION 9.1 Borrower's Grant of Security Interest. As security for
the prompt payment or performance in full when due, whether at stated maturity,
by acceleration or otherwise, of all Obligations, the Borrower hereby assigns
and pledges to the Custodian,
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for the benefit of the Secured Parties, and grants to the Custodian, for the
benefit of the Secured Parties, a security interest in and lien upon, all of the
Borrower's right, title and interest in and to the following, in each case
whether now or hereafter existing or in which Borrower now has or hereafter
acquires an interest and wherever the same may be located (collectively, the
"Borrower Collateral"):
(a) all Collateral;
(b) the Purchase and Sale Agreement, each Lockbox Agreement and all
other Transaction Documents now or hereafter in effect relating to the
purchase, servicing or processing of Transferred Receivables
(collectively, the "Borrower Assigned Agreements"), including (i) all
rights of the Borrower to receive moneys due and to become due under or
pursuant to the Borrower Assigned Agreements, (ii) all rights of the
Borrower to receive proceeds of any insurance, indemnity, warranty or
guaranty with respect to the Borrower Assigned Agreements, (iii) the
Borrower's right of foreclosure as lienholder of the vehicles underlying
the Receivables, (iv) claims of the Borrower for damages arising out of or
for breach of or default under the Borrower Assigned Agreements, and (v)
the right of the Borrower to amend, waive or terminate the Borrower
Assigned Agreements, to perform under the Borrower Assigned Agreements and
to compel performance and otherwise exercise all remedies and rights under
the Borrower Assigned Agreements; provided, that to the extent the
foregoing applies to the Transferred Receivables as well as other
receivables originated and/or serviced by ACC, the foregoing shall apply
only to the Transferred Receivables;
(c) all of the following (the "Borrower Account Collateral"):
(i) each Lockbox Account, the Lockboxes and all funds held in
each Lockbox Account and the Lockboxes and all certificates and
instruments, if any, from time to time representing or evidencing
each Lockbox Account, the Lockboxes or such funds,
(ii) the Collection Account, all funds held in the Collection
Account, and all certificates and instruments, if any, from time to
time representing or evidencing the Collection Account or such
funds,
(iii) all investments from time to time of amounts in each
Lockbox Account and the Collection Account, and all certificates and
instruments, if any, from time to time representing or evidencing
such investments,
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(iv) all notes, certificates of deposit and other instruments
from time to time delivered to or otherwise possessed by an Investor
or any assignee or agent on behalf of an Investor in substitution
for or in addition to any of the then existing Borrower Account
Collateral, and
(v) all interest, dividends, cash, instruments and other
property from time to time received, receivable or otherwise
distributed in respect of or in exchange for any and all of the then
existing Borrower Account Collateral;
(d) all additional property that may from time to time hereafter be
granted and pledged by the Borrower or by anyone on its behalf under this
Agreement, including the deposit with the Custodian or the Agent of
additional moneys by the Borrower; and
(e) all proceeds, accessions, substitutions, rents and profits of
any and all of the foregoing Borrower Collateral (including proceeds that
constitute property of the types described in Sections 9.1(a) through (d)
above) and, to the extent not otherwise included, all payments under
insurance (whether or not an Investor or any assignee or agent on behalf
of an Investor is the loss payee thereof) or any indemnity, warranty or
guaranty payable by reason of loss or damage to or otherwise with respect
to any of the foregoing Borrower Collateral.
SECTION 9.2 Delivery of Collateral. All documents in the Receivables File
and all other documents representing or evidencing Collateral shall be delivered
to and held by or on behalf of the Custodian pursuant to the Custodial
Agreement, and shall be in suitable form for transfer by delivery, shall be
accompanied by duly executed instruments of transfer or assignment in blank, all
in form and substance satisfactory to the Custodian or shall be duly endorsed in
the manner set forth in clause (m) of the definition of "Eligible Receivable",
as applicable, and to the extent not constituting an assignment shall be
irrevocable powers of attorney coupled with an interest.
SECTION 9.3 Borrower Remains Liable. Notwithstanding anything in
this Agreement, (a) the Borrower shall remain liable under the Transferred
Receivables, Borrower Assigned Agreements and other agreements included in the
Collateral to perform all of its duties and obligations thereunder to the same
extent as if this Agreement had not been executed, (b) the exercise by the
Agent, a Secured Party or the Custodian of any of its rights under this
Agreement shall not release the Borrower or the Servicer from any of their
respective duties or obligations under the Transferred Receivables, Borrower
Assigned Agreements or other agreements included in the
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Collateral, (c) the Agent, the Secured Parties and the Custodian shall not have
any obligation or liability under the Transferred Receivables, Borrower Assigned
Agreements or other agreements included in the Collateral by reason of this
Agreement, and (d) neither the Agent, the Custodian nor the Secured Parties
shall be obligated to perform any of the obligations or duties of the Borrower
or the Servicer under the Transferred Receivables, Borrower Assigned Agreements
or other agreements included in the Collateral or to take any action to collect
or enforce any claim for payment assigned under this Agreement.
SECTION 9.4 Covenants of the Borrower and Servicer Regarding the
Collateral.
(a) Offices and Records. The Borrower shall keep its chief place of
business and chief executive offices and the office where it keeps its
records at the location specified in Section 10.9 or, upon 60 days prior
written notice to the Custodian and the Insurer, at such other location in
a jurisdiction where all action required by Section 9.4(f) shall have been
taken with respect to the Collateral. The Borrower and the Servicer shall,
for not less than three years or for such longer period as may be required
by law, from the date on which any Transferred Receivable arose, maintain
the records with respect to each Transferred Receivable, including records
of all payments received, credits granted and merchandise returned. The
Borrower and the Servicer will permit representatives of the Agent, the
Insurer, the Backup Servicer and the Custodian at any time and from time
to time during normal business hours, and at such times outside of normal
business hours as the Agent, the Insurer, the Backup Servicer and the
Custodian shall reasonably request, (i) to inspect and make copies of and
abstracts from such records, and (ii) to visit the properties of the
Borrower or the Servicer utilized in connection with the collection,
processing or servicing of the Transferred Receivables for the purpose of
examining such records, and to discuss matters relating to the Receivables
or the Borrower's or Servicer's performance under this Agreement with any
officer or employee of the Borrower or Servicer having knowledge of such
matters. In connection therewith, the Agent, the Insurer, the Backup
Servicer or the Custodian may institute procedures to permit it to confirm
the Obligor balances in respect of any Transferred Receivables. Each of
the Borrower and the Servicer agrees to render to the Agent, the Insurer,
the Backup Servicer and the Custodian such clerical and other assistance
as may be reasonably requested with regard to the foregoing. If an Event
of Default shall have occurred and be continuing, promptly upon request
therefor, the Borrower or the Servicer shall deliver to the Custodian
records reflecting activity through the close of business on the
immediately preceding Business Day.
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(b) Maintain Records of Transferred Receivables. The Borrower and
the Servicer shall, at their own cost and expense, maintain satisfactory
and complete records of the Collateral, including a record of all payments
received and all credits granted with respect to the Collateral and all
other dealings with the Collateral. Each of the Borrower and the Servicer
will xxxx conspicuously with a legend, in form and substance satisfactory
to the Agent and the Insurer, its records, computer tapes, computer disks
and credit files pertaining to the Collateral, and its file cabinets or
other storage facilities where it maintains information pertaining to the
Collateral, to evidence this Agreement and the assignment and security
interest granted by this Article IX. Upon the occurrence and during the
continuation of an Event of Default, the Borrower and Servicer shall (i)
deliver and turn over to the Backup Servicer or to its representatives, or
at the option of the Backup Servicer shall provide the Backup Servicer or
its representatives with access to, after the occurrence of an Event of
Default, at any time, and during all other times, during ordinary business
hours, on demand of the Backup Servicer, all of the Borrower's and
Servicer's facilities, personnel, books and records pertaining to the
Collateral, including all records, and (ii) allow the Backup Servicer to
occupy the premises of the Borrower and the Servicer where such books and
records are maintained, and utilize such premises, the equipment thereon
and any personnel of the Borrower or the Servicer that the Backup Servicer
may wish to employ to administer, service and collect the Transferred
Receivables.
(c) Performance of Borrower Assigned Agreements. The Borrower shall
(i) perform and observe all the terms and provisions of the Borrower
Assigned Agreements to be performed or observed by it, maintain the
Borrower Assigned Agreements in full force and effect, enforce the
Borrower Assigned Agreements in accordance with their terms and take all
such action to such end as may be from time to time requested by the
Investors, and (ii) upon request of the Agent, the Insurer or the
Investors, make to any other party to the Borrower Assigned Agreements
such demands and requests for information and reports or for action as the
Borrower is entitled to make under the Borrower Assigned Agreements.
(d) Notice of Adverse Claim. Each of the Borrower and the Servicer
shall advise the Investors, the Agent, the Insurer and the Custodian
promptly, in reasonable detail, (i) of any Adverse Claim known to it made
or asserted against any of the Borrower Collateral, and (ii) of the
occurrence of any event which would have a material adverse effect on the
aggregate value of the Borrower Collateral or on the assignments and
security interests granted by the Borrower in this Agreement.
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(e) Further Assurances; Financing Statements.
(i) Each of the Borrower and the Servicer severally agrees
that at any time and from time to time, at its expense, it shall
promptly execute and deliver all further instruments and documents,
and take all further action, that may be necessary or desirable or
that any Secured Party or the Agent may request to perfect and
protect the assignments and security interests granted or purported
to be granted by this Article XI or to enable such Secured Party,
the Agent or the Custodian to exercise and enforce its rights and
remedies under this Agreement with respect to any Collateral.
Without limiting the generality of the foregoing, the Borrower shall
execute and file such financing or continuation statements, or
amendments thereto, and such other instruments or notices as may be
necessary or desirable or that any Secured Party or the Agent may
request to protect and preserve the assignments and security
interests granted by this Agreement.
(ii) The Borrower and each Secured Party hereby severally
authorize the Custodian to execute for filing by the Controlling
Party one or more financing or continuation statements, and
amendments thereto, relating to all or any part of the Collateral
without the signature of the Borrower or the Secured Parties where
permitted by law. A carbon, photographic or other reproduction of
this Agreement or any financing statement covering the Collateral or
any part thereof shall be sufficient as a financing statement where
permitted by law. The Controlling Party will promptly send to the
Borrower any financing or continuation statements thereto which it
files without the signature of the Borrower and will promptly send
to each Secured Party and the Borrower any financing or continuation
statements thereto which it files without the signature of the
Secured Parties except, in the case of filings of copies of this
Agreement as financing statements, the Controlling Party will
promptly send the Borrower and each Secured Party, as the case may
be, the filing or recordation information with respect thereto.
(iii) Each of the Borrower and the Servicer shall furnish to
the Custodian from time to time such statements and schedules
further identifying and describing the Collateral and such other
reports in connection with the Collateral as the Controlling Party
or the Agent may reasonably request, all in reasonable detail.
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SECTION 9.5 Release of Borrower Collateral.
(a) Generally. For purposes of selling and transferring Receivables
to third parties in connection with other securitizations (including any
Take-Out Securitization), so long as there is no Event of Default, or
event which, with the passage of time, the giving of notice, or both,
would constitute an Event of Default hereunder, the Borrower may obtain
releases of the Custodian's (for the benefit of the Secured Parties)
security interest in all or any part of the Borrower Collateral and from
time to time, to the extent that (immediately after giving effect to any
requested release) there exists no Borrowing Base Deficiency and there is
no Event of Default, or event which, with the passage of time, the giving
of notice, or both, would constitute an Event of Default. Each request for
a partial release of Collateral (a "Transfer Request") shall be addressed
to the Agent (with a copy thereof sent by the Borrower or the Servicer to
the Insurer and the Custodian), demonstrating compliance with the
immediately preceding sentence and acknowledging that the receipt of
proceeds from such sale or transfer to third parties shall be deposited
into the Collection Account in accordance with Section 8.18.
(b) Transfers. With respect to each Transfer Request that is
received by the Agent by 12:00 noon, New York time on a Business Day, the
Agent shall use due diligence and reasonable efforts to review such
Transfer Requests and prepare the files, identified in each Transfer
Request, for shipment by 12:00 noon, New York time on the second
succeeding Business Day.
(c) Continuation of Lien. Unless released in writing by the Secured
Parties, as herein provided, the security interest in favor of the
Custodian, for the benefit of the Secured Parties, in all Borrower
Collateral shall continue in effect until such time as the Secured Parties
shall have received payment in full of the proceeds from the sale or
transfer of such Borrower Collateral to third parties in accordance with
this Section 9.5.
(d) Application of Proceeds; No Duty. Neither of the Agent, nor the
Custodian, nor any Secured Party shall be under any duty at any time to
credit Borrower for any amount due from any third party in respect of any
purchase of any Borrower Collateral contemplated above, until the
Custodian has actually received such amount in immediately available funds
for deposit to the Collection Account. Neither the Custodian nor any
Secured Party, nor the Agent shall be under any duty at any time to
collect any amounts or otherwise enforce any obligations due from any
third party in respect of any such purchase of
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Receivables covered by the release of such portion of Borrower Collateral
or in respect of a securitization thereof with a third party.
(e) Representation in Connection with Releases, Sales and Transfers.
The Borrower represents and warrants that each request for any release or
transfer pursuant to Section 9.5(a) shall automatically constitute a
representation and warranty to the Secured Parties, the Agent and the
Custodian to the effect that immediately before and after giving effect to
such release or Transfer Request, there is no Event of Default, or event
which, with the passage of time, the giving of notice, or both, would
constitute an Event of Default (including, without limitation a Borrowing
Base Deficiency or an Insurance Agreement Event of Default).
(f) Release of Security Interest. Upon the Agent's request, the
Custodian shall promptly release, at the Borrower's expense, all UCC
financing statements in connection with the release of such part of
Borrower Collateral covered in connection with the Transfer Request and
shall deliver, at the Borrower's expense, the documents and certificates
on the released portion of Borrower Collateral to the trustee or such
similar entity in connection with the third party securitization
(including any Take-Out Securitization); provided that the trustee or such
similar entity in connection with the third party securitization
(including any Take-Out Securitization) acknowledges and agrees (i) that
all proceeds thereof that it receives are held in trust for the Secured
Parties and (ii) at such time that the Secured Parties shall instruct such
trustee to transfer such proceeds, the trustee shall transfer such funds
pursuant to such instructions.
ARTICLE X
REPRESENTATIONS AND WARRANTIES OF THE BORROWER
In order to induce the other parties hereto to enter into this Agreement
and, in the case of Alpine and the Lenders, to make Advances hereunder, and the
Insurer, to issue the Policy, the Borrower hereby represents and warrants to the
Agent, the Insurer and the Investors as to itself, as of the Closing Date and
the date of each Advance, as follows:
SECTION 10.1 Organization and Good Standing. The Borrower has been duly
organized and is validly existing as a limited liability company in good
standing under the laws of the State of Delaware, with power and authority to
own its properties and to conduct its business as such properties are currently
owned and such business is currently
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conducted, and had at all relevant times and now has, power, authority and legal
right to acquire and own the Transferred Receivables and the Other Conveyed
Property, and to grant to the Custodian a first priority security interest in
the Transferred Receivables and the Other Conveyed Property and to enter into
and perform its obligations under this Agreement.
SECTION 10.2 Due Qualification. The Borrower is duly qualified to do
business as a foreign corporation in good standing, and has obtained all
necessary licenses and approvals, in all jurisdictions in which the ownership or
lease of its property or the conduct of its business requires such
qualification.
SECTION 10.3 Power and Authority. The Borrower has the power and authority
to execute and deliver this Agreement and the other Transaction Documents to
which it is a party and to carry out its terms and their terms, respectively;
the Borrower has full power and authority to grant to the Custodian, for the
benefit of the Secured Parties, a perfected first priority security interest in
the Transferred Receivables and the Other Conveyed Property and has duly
authorized such grant by all necessary corporate action and the execution,
delivery and performance of this Agreement and the other Transaction Documents
to which it is a party have been duly authorized by the Borrower by all
necessary corporate action.
SECTION 10.4 Security Interest; Binding Obligations. This Agreement and
the Transaction Documents to which it is a party have been duly executed and
delivered and shall create a valid first priority security interest in the
Transferred Receivables and the Other Conveyed Property in favor of the
Custodian, enforceable against the Borrower and creditors of and purchasers from
the Borrower, and this Agreement and the other Transaction Documents to which it
is a party shall constitute legal, valid and binding obligations of the Borrower
enforceable in accordance with their respective terms, except as enforceability
may be limited by bankruptcy, insolvency, reorganization or other similar laws
affecting the enforcement of creditors' rights generally and by equitable
limitations on the availability of specific remedies, regardless of whether such
enforceability is considered in a proceeding in equity or at law.
SECTION 10.5 No Violation. The consummation of the transactions
contemplated by this Agreement and the other Transaction Documents to which it
is a party, and the fulfillment of the terms of this Agreement and the other
Transaction Documents to which it is a party, shall not conflict with, result in
any breach of any of the terms and provisions of, or constitute (with or without
notice or lapse of time) a default under, the articles of incorporation or
bylaws of the Borrower, or any indenture, agreement, mortgage, deed of trust or
other instrument to which the Borrower is a party
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or by which it is bound or any of its properties are subject, or result in the
creation or imposition of any Lien upon any of its properties pursuant to the
terms of any such indenture, agreement, mortgage, deed of trust or other
instrument, other than this Agreement, or violate any law, order, rule or
regulation applicable to the Borrower of any court or of any federal or state
regulatory body, administrative agency or other governmental instrumentality
having jurisdiction over the Borrower or any of its properties, or in any way or
affect the Borrower's ability to perform its obligations under this Agreement or
the other Transaction Documents to which it is a party.
SECTION 10.6 No Proceedings. There are no proceedings or investigations
pending or, to the Borrower's knowledge, threatened against the Borrower, before
any court, regulatory body, administrative agency or other tribunal or
governmental instrumentality having jurisdiction over the Borrower or its
properties (A) asserting the invalidity of this Agreement or any of the other
Transaction Documents, (B) seeking to prevent the consummation of any of the
transactions contemplated by this Agreement or any of the other Transaction
Documents, (C) seeking any determination or ruling that might materially and
adversely affect the performance by the Borrower of its obligations under, or
the validity or enforceability of, this Agreement or any of the other
Transaction Documents (D) involving the Borrower or (E) that could have a
material adverse effect on the Transferred Receivables.
SECTION 10.7 No Consents. The Borrower is not required to obtain the
consent of any other party or any consent, license, approval or authorization,
or registration or declaration with, any governmental authority, bureau or
agency in connection with the execution, delivery, performance, validity or
enforceability of this Agreement or the other Transaction Documents to which it
is a party.
SECTION 10.8 Approvals. All approvals, authorizations, orders or other
actions of any person, corporation or other organization, or of any court,
governmental agency or body or official, required in connection with the
execution and delivery by the Borrower of this Agreement and the other
Transaction Documents and the consummation of the transactions contemplated
hereby have been or will be taken or obtained on or prior to the Closing Date.
SECTION 10.9 Chief Executive Office. The chief executive office of the
Borrower is located at 00000 Xxxx Xxxxx Xxxxx, Xxxxx 000, Xxx Xxxxx, Xxxxxxxxxx
00000.
SECTION 10.10 Solvency. The Borrower is solvent and will not become
insolvent after giving effect to the transactions contemplated by this Agreement
and the Transaction Documents. The Borrower has no Indebtedness to any Person
other than
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pursuant to this Agreement and the other Transaction Documents. The Borrower,
after giving effect to the transactions contemplated by this Agreement and the
other Transaction Documents, will have an adequate amount of capital to conduct
its business in the foreseeable future.
SECTION 10.11 Tax Treatment. For federal income tax, reporting and
accounting purposes, the Borrower will treat the purchase or absolute assignment
of each Transferred Receivable and Other Conveyed Property pursuant to the
Purchase and Sale Agreement as a purchase or absolute assignment of ACC's full
right, title and ownership interest in such Transferred Receivable and Other
Conveyed Property (and those Transferred Receivables and Other Conveyed Property
contributed to the Borrower by ACC pursuant to the Purchase and Sale Agreement
shall be accounted for as an increase in the stated capital of the Borrower) and
the Borrower has not in any other manner accounted for or treated the transfer
to it of Transferred Receivables and Other Conveyed Property.
SECTION 10.12 Compliance With Laws. The Borrower has complied and will
comply in all respects with all applicable laws, rules, regulations, judgments,
agreements, decrees and orders with respect to its business and properties and
all Collateral.
SECTION 10.13 Taxes. The Borrower has filed on a timely basis all tax
returns (including, without limitation, foreign, federal, state, local and
otherwise) required to be filed, is not liable for taxes payable by any other
Person and has paid or made adequate provisions for the payment of all taxes,
assessments and other governmental charges due from the Borrower. No tax lien or
similar adverse claim has been filed, and no claim is being asserted, with
respect to any such tax, assessment or other governmental charge. Any taxes,
fees and other governmental charges payable by the Borrower in connection with
the execution and delivery of this Agreement and the other Transaction Documents
and the transactions contemplated hereby or thereby including the transfer of
each Transferred Receivable and Other Conveyed Property to the Borrower have
been paid or shall have been paid if and when due at or prior to the Closing
Date and the relevant Purchase Date, as the case may be.
SECTION 10.14 Borrowing Base Certificate. Each Borrowing Base Certificate
is accurate in all material respects as of the date thereof.
SECTION 10.15 No Liens, Etc. The Collateral and each part thereof is owned
by the Borrower free and clear of any adverse claim or restrictions on
transferability and the Borrower has the full right, corporate power and lawful
authority to assign, transfer and pledge the same and interests therein, and
upon the making of each Advance, the
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Custodian, for the benefit of the Secure Parties, will have acquired a
perfected, first priority and valid security interest in such Collateral, free
and clear of any adverse claim or restrictions on transferability. No effective
financing statement or other instrument similar in effect covering all or any
part of the Collateral is on file in any recording office, except such as may
have been filed in favor of the Custodian as "Secured Party" pursuant to Article
XI of this Agreement or, with respect to the Transferred Receivables, in favor
of the Borrower pursuant to the Purchase and Sale Agreement.
SECTION 10.16 Purchase and Sale. Each Transferred Receivable and Other
Conveyed Property was purchased by or contributed to the Borrower on the
relevant Purchase Date pursuant to the Purchase and Sale Agreement.
SECTION 10.17 Securities Act of 1933; Investment Company Act of 1940. Each
purchase of Transferred Receivables and Other Conveyed Property under the
Purchase and Sale Agreement will constitute (i) a "current transaction" within
the meaning of Section 3(a)(3) of the Securities Act of 1933, as amended, and
(ii) a purchase or other acquisition of notes, drafts, acceptances, open
accounts receivable or other obligations representing part or all of the sales
price of merchandise, insurance or services within the meaning of Section
3(c)(5) of the Investment Company Act of 1940, as amended.
SECTION 10.18 Information True and Correct. All information heretofore or
hereafter furnished by or on behalf of the Borrower to the Insurer, Alpine, the
Agent or the Custodian in connection with this Agreement or any transaction
contemplated hereby is and will be true and complete in all material respects
and does not and will not omit to state a material fact necessary to make the
statements contained therein not misleading.
SECTION 10.19 ERISA Compliance. The Borrower is in compliance with ERISA
and has not incurred and does not expect to incur any liabilities (except for
premium payments arising in the ordinary course of business) to the Pension
Benefit Guaranty Corporation (or any successor thereto) under ERISA.
SECTION 10.20 No Material Adverse Effect; No Default. (a) Except as
otherwise disclosed to the Agent and the Insurer, the Borrower is not a party to
any indenture, loan or credit agreement or any lease or other agreement or
instrument or subject to any charter or corporation restriction that could have,
and no provision of applicable law or governmental regulation is reasonably
likely to have, a material adverse effect on the condition (financial or
otherwise), business, operations, results of operations or properties of the
Borrower, or could have such an effect on the ability of the Borrower to carry
out its obligations under this Agreement and the other Transaction Documents to
which the Borrower is a party and (b) the Borrower is not in default under or
with respect
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to any contract, agreement, lease or other instrument to which the Borrower is a
party and which is material to the Borrower's condition (financial or
otherwise), business, operations or properties, and the Borrower has not
delivered or received any notice of default thereunder.
SECTION 10.21 Financial or Other Condition. There has been no material
adverse change in the condition (financial or otherwise), business, operations,
results of operations, or properties of the Borrower.
SECTION 10.22 Investment Company Status. The Borrower is not an
"investment company" or an "affiliated person" of, or "promoter" or "principal
underwriter" for, an "investment company," as such terms are defined in the
Investment Company Act of 1940, as amended. The making of the Advances by the
Lenders, the application of the proceeds and repayment thereof by the Borrower
and the consummation of the transactions contemplated by this Agreement and the
other Transaction Documents to which the Borrower is a party will not violate
any provision of such Act or any rule, regulation or order issued by the
Securities and Exchange Commission thereunder.
SECTION 10.23 No Shared Obligations. There is not now, nor will there be
at any time in the future, any agreement or understanding between ACC and the
Borrower (other than as expressly set forth herein) providing for the allocation
or sharing of obligations to make payments or otherwise in respect of any taxes,
fees, assessments or other governmental charges.
SECTION 10.24 Representation and Warranties True and Correct. Each of the
representations and warranties of the Borrower contained in this Agreement and
the other Transaction Documents is true and correct in all material respects and
the Borrower hereby makes each such representation and warranty to, and for the
benefit of, the Insurer, the Investors, the Agent and the Custodian as if the
same were set forth in full herein.
SECTION 10.25 Eligible Receivables. All Receivables included in the
Borrowing Base as of the most recently delivered Borrowing Base Certificate are
Eligible Receivables.
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ARTICLE XI
COVENANTS OF THE BORROWER
From the date hereof until the first day, following the Facility
Termination Date, on which all Obligations shall have been finally and fully
paid and performed, the Borrower hereby covenants and agrees with the Investors,
the Insurer and the Agent that it will:
SECTION 11.1 Protection of Security Interest of the Secured Parties. (a)
At or prior to the Closing Date, the Borrower shall have filed or caused to be
filed UCC-1 financing statements, executed by the Borrower as debtor, naming the
Custodian (for the benefit of the Secured Parties) as secured party and
describing the Collateral, with the office of the Secretary of State of the
State of California and in such other locations as the Agent shall have
required. From time to time thereafter, the Borrower shall execute and file such
financing statements and cause to be executed and filed such continuation
statements, all in such manner and in such places as may be required by law
fully to preserve, maintain and protect the interest of the Investors under this
Agreement in the Collateral and in the proceeds thereof. The Borrower shall
deliver (or cause to be delivered) to the Agent (with a copy to the Insurer)
file-stamped copies of, or filing receipts for, any document filed as provided
above, as soon as available following such filing. In the event that the
Borrower fails to perform its obligations under this subsection, the Agent, the
Insurer, or the Custodian at the direction of the Agent or the Controlling
Party, may do so, in each case at the expense of the Borrower.
(b) The Borrower shall not change its name, identity, or corporate
structure in any manner that would, could or might make any financing
statement or continuation statement filed by the Borrower (or by the
Agent, the Insurer or the Custodian on behalf of the Borrower) in
accordance with paragraph (a) above seriously misleading within the
meaning of Section 9-402(7) of the UCC, unless the Borrower shall have
given the Agent and the Insurer at least 60 days prior written notice
thereof, and shall promptly file appropriate amendments to all previously
filed financing statements and continuation statements.
(c) The Borrower shall give the Agent and the Insurer at least 60
days prior written notice of any relocation of its principal executive
office if, as a result of such relocation, the applicable provisions of
the UCC would require the filing of any amendment of any previously filed
financing or continuation statement or of any new financing statement. The
Borrower shall at all times maintain its principal executive office within
the United States of America.
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(d) The Borrower shall maintain its computer systems, if any, so
that, from and after the time of the first Advance under this Agreement,
the Borrower's master computer records (including archives) that shall
refer to the Collateral indicate clearly that such Collateral is subject
to first priority security interest in favor of the Custodian, for the
benefit of the Secured Parties. Indication of the Custodian's (for the
benefit of the Secured Parties) security interest shall be deleted from or
modified on the Borrower's computer systems when, and only when, the
Collateral in question shall have been paid in full.
(e) If at any time the Borrower shall propose to sell, grant a
security interest in, or otherwise transfer any interest in motor vehicle
receivables to any prospective purchaser, lender or other transferee, the
Borrower shall give to such prospective purchaser, lender, or other
transferee computer tapes, records, or print-outs (including any restored
from archives) that, if they shall refer in any manner whatsoever to any
Collateral shall indicate clearly that such Collateral is subject to a
first priority security interest in favor of the Custodian, for the
benefit of the Secured Parties.
SECTION 11.2 Other Liens or Interests. Except for the security interest
granted hereunder, the Borrower will not sell, pledge, assign or transfer to any
other Person, or grant, create, incur, assume or suffer to exist any Lien on the
Collateral or any interest therein, and the Borrower shall defend the right,
title, and interest of the Custodian (for the benefit of the Secured Parties),
the Investors and the Agent in and to the Collateral against all claims of third
parties claiming through or under the Borrower.
SECTION 11.3 Costs and Expenses. The Borrower shall pay all of its
reasonable costs and disbursements in connection with the performance of its
obligations hereunder and under the Transaction Documents.
SECTION 11.4 Reporting Requirements. The Borrower shall furnish, or cause
to be furnished, to the Agent, the Insurer and the Custodian:
(a) daily, a certificate in the form attached hereto as Exhibit D
(the "Borrowing Base Certificate") as of the preceding Business Day;
(b) as soon as available and in any event within 90 days (or next
succeeding Business Day if the last day of such period is not a Business
Day) after the end of each fiscal year, a copy of the annual 10-K report
and audited consolidated financial statements for such year for ACC and
its consolidated
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Subsidiaries, certified, in a manner acceptable to the Controlling Party
and the Agent, by independent public accountants acceptable to the
Controlling Party and the Agent and each other report or statement sent to
shareholders or publicly filed by ACC or the Borrower;
(c) as soon as available and in any event within 45 days (or next
succeeding Business Day if the last day of such period is not a Business
Day) after the end of each of the first three quarters of each fiscal year
of ACC, a consolidated balance sheet of ACC and its consolidated
Subsidiaries as of the end of such quarter and including the prior
comparable period, and consolidated statements of income and retained
earnings, and of cash flow, of ACC and its consolidated Subsidiaries for
such quarter and for the period commencing at the end of the previous
fiscal year and ending with the end of such quarter, certified by the
chief financial officer or chief accounting officer of ACC identifying
such documents as being the documents described in this paragraph (c) and
stating that the information set forth therein fairly presents the
financial condition of ACC and its consolidated Subsidiaries as of and for
the periods then ended, subject to year-end adjustments consisting only of
normal, recurring accruals and confirming that ACC is in compliance with
all financial covenants in this Agreement;
(d) as soon as possible and in any event within five days after the
occurrence of an Event of Default (including without limitation a material
adverse change in the financial condition of the Borrower as determined by
the Controlling Party and the Agent and notified in writing to the
Borrower) or an Unmatured Event of Default, the statement of the chief
executive officer of the Borrower setting forth complete details of such
Event of Default or Unmatured Event of Default and the action which the
Borrower has taken, is taking and proposes to take with respect thereto;
(e) promptly, from time to time, such other information, documents,
records or reports respecting the Transferred Receivables, the Other
Conveyed Property or the Financed Vehicles or the condition or operations,
financial or otherwise, of the Borrower, or ACC or any of its
Subsidiaries, as the Insurer (as long as no Insurer Default has occurred
and is continuing) and the Agent may, from time to time, reasonably
request.
SECTION 11.5 Tangible Net Worth. The Borrower shall maintain Tangible Net
Worth of at least $1,000,000.
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SECTION 11.6 Take-Out Securitization. The Borrower shall effect or cause
an Affiliate to effect a Take-Out Securitization no more than four months after
the Closing Date and thereafter no more than six months after the immediately
preceding Take-Out Securitization.
SECTION 11.7 Warehouse Facility. ACC shall maintain at all times after six
months following the Closing Date, no less than one Warehouse Facility in
addition to that provided under this Agreement.
ARTICLE XII
THE SERVICER
SECTION 12.1 Liability of Servicer; Indemnities. (a) The Servicer shall be
liable hereunder only to the extent of the obligations in this Agreement
specifically undertaken by the Servicer and the representations made by the
Servicer;
(b) The Servicer shall defend, indemnify and hold harmless the
Investors, the Agent, the Backup Servicer, their respective officers,
directors, agents and employees from and against any and all costs,
expenses, losses, damages, claims, liabilities, penalties, fines,
forfeitures and judgments, including reasonable fees and expenses of
counsel and expenses of litigation arising out of or resulting from the
use, ownership or operation by the Servicer or any Affiliate thereof of
any Financed Vehicle;
(c) The Servicer shall defend, indemnify and hold harmless the
Investor, the Agent, their respective officers, directors, agents and
employees from and against any taxes that may at any time be asserted
against any of them with respect to the transactions contemplated in this
Agreement, including, without limitation, any sales, gross receipts,
general corporation, tangible personal property, privilege or license
taxes and costs and expenses in defending against the same;
(d) The Servicer shall indemnify, defend and hold harmless the
Investors, the Agent, the Backup Servicer, their respective officers,
directors, agents and employees from and against any and all costs,
expenses, losses, claims, damages, and liabilities to the extent that such
cost, expense, loss, claim, damage, liability, penalty, fine, forfeiture
or judgment arose out of, or was imposed upon the Investors, the Agent or
the Backup Servicer through the breach of this Agreement by the Servicer,
the negligence, willful misfeasance or bad faith of the
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Servicer in the performance of its duties under this Agreement or by
reason of reckless disregard of its obligations and duties under this
Agreement;
(e) For purposes of this Section 12.1, in the event of the
termination of the rights and obligations of the Servicer (or any
successor thereto pursuant to Section 12.2) as Servicer pursuant to
Section 13.1, or a resignation by such Servicer pursuant to this
Agreement, such Servicer shall be deemed to be the Servicer pending
appointment of a successor Servicer pursuant to Section 13.3. The
provisions of this Section 12.1(e) shall in no way affect the survival
pursuant to Section 12.1(f) of the indemnification by the Servicer
provided by Sections 12.1(b) through 12.1(d); and
(f) Indemnification under this Article shall survive the termination
of this Agreement and shall include reasonable fees and expenses of
counsel and expenses of litigation. If the Servicer shall have made any
indemnity payments pursuant to this Article and the recipient thereafter
collects any of such amounts from others, the recipient shall promptly
repay such amounts collected to the Servicer, without interest.
Notwithstanding any other provision of this Agreement, the obligations of
the Servicer described in this Section 12.1 shall not terminate or be
deemed released upon the resignation or termination of ACC as the Servicer
and shall survive any termination of this Agreement;
excluding, however, (1) Indemnified Amounts to the extent determined by a court
of competent jurisdiction to have resulted from gross negligence or willful
misconduct on the part of any Indemnified Party or its agent or subcontractor,
(2) Indemnified Amounts to the extent solely due to non-payment by any Obligor
of an amount due and payable with respect to a Transferred Receivable, (3) any
loss in value of any Transferred Receivable or related Financed Vehicle or
Permitted Investment due to changes in market conditions or for other reasons
beyond the control of the Servicer or (4) any tax upon or measured by net income
on any Indemnified Party. Without limiting the foregoing, but subject to the
exclusions (1) through (4) above, the Servicer agrees to indemnify each
Indemnified Party for Indemnified Amounts arising out of or relating to:
(i) the breach of any representation or warranty made by the
Servicer (or any of its respective officers) under or in connection
with this Agreement or the other Transaction Documents, any
Servicer's Certificate, Borrowing Base Certificate or any other
information, report or certificate delivered by the Servicer
pursuant hereto or thereto, which shall have been false or incorrect
in any material respect when made or deemed made;
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(ii) the failure by the Servicer to comply in any material way
with any applicable law, rule or regulation with respect to any
Transferred Receivable or any Financed Vehicle, or the nonconformity
of any Transferred Receivable with any such applicable law, rule or
regulation;
(iii) any failure of the Servicer, or otherwise, to perform
its duties or obligations in accordance with the provisions of
Article VIII or any provision contained in any other Transaction
Document; or
(iv) the commingling of the proceeds of Collateral at any time
with other funds.
SECTION 12.2 Merger or Consolidation of, or Assumption of the Obligations
of, the Servicer or Backup Servicer. (a) The Servicer shall not merge or
consolidate with any other Person, convey, transfer or lease substantially all
its assets as an entirety to another Person, or permit any other Person to
become the successor to the Servicer's business unless, after the merger,
consolidation, conveyance, transfer, lease or succession, the successor or
surviving entity shall be an Eligible Servicer and shall be capable of
fulfilling the duties of the Servicer contained in this Agreement. Any Person
(i) into which the Servicer may be merged or consolidated, (ii) resulting from
any merger or consolidation to which the Servicer shall be a party, (iii) which
acquires by conveyance, transfer, or lease substantially all of the assets of
the Servicer, or (iv) succeeding to the business of the Servicer, in any of the
foregoing cases shall execute an agreement of assumption to perform every
obligation of the Servicer under this Agreement and, whether or not such
assumption agreement is executed, shall be the successor to the Servicer under
this Agreement without the execution or filing of any paper or any further act
on the part of any of the parties to this Agreement, anything in this Agreement
to the contrary notwithstanding; provided, however, that nothing contained
herein shall be deemed to release the Servicer from any obligation. The Servicer
shall provide notice of any merger, consolidation or succession pursuant to this
Section 12.2(a) to the Insurer, the Agent and the Backup Servicer.
Notwithstanding the foregoing, as a condition to the consummation of the
transactions referred to in clauses (i), (ii), (iii) and (iv) above, (x)
immediately after giving effect to such transaction, no representation or
warranty made pursuant to Section 8.6 shall have been breached (for purposes
hereof, such representations and warranties shall speak as of the date of the
consummation of such transaction), (y) the Servicer shall have delivered to the
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Insurer and the Agent an Officer's Certificate and an Opinion of Counsel each
stating that such consolidation, merger or succession and such agreement of
assumption comply with this Section 12.2(a) and that all conditions precedent,
if any, provided for in this Agreement relating to such transaction have been
complied with, and (z) the Servicer shall have delivered to the Insurer and the
Agent an Opinion of Counsel, stating, in the opinion of such counsel, either (A)
all financing statements and continuation statements and amendments thereto have
been executed and filed that are necessary to preserve and protect the security
interest of the Custodian (for the benefit of the Secured Parties) in the
Transferred Receivables and reciting the details of the filings or (B) no such
action shall be necessary to preserve and protect such interest.
(b) Any Person (i) into which the Backup Servicer may be merged or
consolidated, (ii) resulting from any merger or consolidation to which the
Backup Servicer shall be a party, (iii) which acquires by conveyance,
transfer or lease substantially all of the assets of the Backup Servicer,
or (iv) succeeding to the business of the Backup Servicer, in any of the
foregoing cases shall execute an agreement of assumption to perform every
obligation of the Backup Servicer under this Agreement and, whether or not
such assumption agreement is executed, shall be the successor to the
Backup Servicer under this Agreement without the execution or filing of
any paper or any further act on the part of any of the parties to this
Agreement, anything in this Agreement to the contrary notwithstanding;
provided, however, that nothing contained herein shall be deemed to
release the Backup Servicer from any obligation.
SECTION 12.3 Limitation on Liability of Servicer, Backup Servicer and
Others. Neither the Servicer, the Backup Servicer nor any of the directors or
officers or employees or agents of the Servicer or Backup Servicer shall be
under any liability to the Borrower, the Investors or the Agent, except as
provided in this Agreement, for any action taken or for refraining from the
taking of any action pursuant to this Agreement; provided, however, that this
provision shall not protect the Servicer, the Backup Servicer or any such person
against any liability that would otherwise be imposed by reason of willful
misfeasance, bad faith or negligence (excluding errors in judgment) in the
performance of duties (including negligence with respect to the Servicer's
indemnification obligations hereunder), by reason of reckless disregard of
obligations and duties under this Agreement or any violation of law by the
Servicer, Backup Servicer or such person, as the case may be. The Servicer, the
Backup Servicer and any director, officer, employee or agent of the Servicer or
Backup Servicer may rely in good faith on the advice of counsel or on any
document of any kind prima facie properly executed and submitted by any Person
respecting any matters arising under this Agreement. The Backup Servicer shall
not be required to expend or risk its own funds or otherwise incur financial
liability in the performance of any of its duties hereunder, or in the exercise
of any of its rights or powers, if the repayment of such funds or adequate
written indemnity against such risk or liability is not reasonably assured to it
in writing prior to the expenditure or risk of such funds or incurrence of
financial liability.
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SECTION 12.4 Delegation of Duties. So long as ACC is the Servicer, the
Servicer may delegate duties under this Agreement to an Affiliate of ACC with
the prior written consent of the Insurer, the Agent and the Backup Servicer. The
Servicer also may at any time perform the specific duty of repossession of
Financed Vehicles through subcontractors who are in the business of servicing
automotive receivables and may perform other specific duties through such
sub-contractors with the prior written consent of the Controlling Party;
provided, however, that no such delegation or subcontracting duties by the
Servicer shall relieve the Servicer of its responsibility with respect to such
duties. Neither ACC nor any other party acting as Servicer hereunder shall
appoint any subservicer hereunder without the prior written consent of the
Insurer, the Agent and the Backup Servicer.
SECTION 12.5 Servicer and Backup Servicer Not to Resign. Subject to the
provisions of Section 12.2, neither the Servicer nor the Backup Servicer shall
resign from the obligations and duties imposed on it by this Agreement as
Servicer or Backup Servicer except upon a determination that by reason of a
change in legal requirements the performance of its duties under this Agreement
would cause it to be in violation of such legal requirements in a manner which
would result in a material adverse effect on the Servicer or the Backup
Servicer, as the case may be, and the Controlling Party does not elect to waive
the obligations of the Servicer or the Backup Servicer, as the case may be, to
perform the duties which render it legally unable to act or to delegate those
duties to another Person. Any such determination permitting the resignation of
the Servicer or Backup Servicer shall be evidenced by an Opinion of Counsel to
such effect delivered and acceptable to the Agent and, unless an Insurer Default
shall have occurred and be continuing, the Insurer. No resignation of the
Servicer shall become effective until the Backup Servicer or an entity
acceptable to the Controlling Party shall have assumed the responsibilities and
obligations of the Servicer. No resignation of the Backup Servicer shall become
effective until an entity acceptable to the Controlling Party shall have assumed
the responsibilities and obligations of the Backup Servicer; provided, however,
that in the event a successor Backup Servicer is not appointed within 60 days
after the Backup Servicer has given notice of its resignation as permitted by
this Section 12.5, the Backup Servicer may petition a court for its removal.
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ARTICLE XIII
SERVICER TERMINATION EVENTS
SECTION 13.1 Servicer Termination Event. For purposes of this Agreement,
each of the following shall constitute a "Servicer Termination Event":
(a) Any failure by the Servicer or, so long as ACC or an Affiliate
of the Borrower is the Servicer, the Borrower to deliver to the Custodian
any proceeds or payment required to be so delivered under the terms of
this Agreement (or, if ACC or an Affiliate of the Borrower is the
Servicer, under the Purchase and Sale Agreement) that continues unremedied
for a period of two Business Days (or, with respect to any Purchase
Amounts, one Business Day) after written notice is received by the
Servicer from the Agent or, without duplication, the Controlling Party or
after discovery of such failure by a Responsible Officer of the Servicer;
(b) Failure by the Servicer to deliver the Servicer's Certificate
required by Section 8.9 by 12:00 noon New York City time on the second
Business Day after the date such certificate is required to be delivered;
(c) Failure on the part of the Servicer to observe its covenants and
agreements set forth in Section 12.2(a);
(d) Failure on the part of the Servicer or, so long as ACC or an
Affiliate of the Borrower is the Servicer, the Borrower, duly to observe
or perform in any material respect any other covenants or agreements of
the Servicer or, so long as ACC is the Servicer, the Borrower, as the case
may be, set forth in this Agreement (or, as to ACC, if ACC is the
Servicer, the Purchase and Sale Agreement), which failure continues
unremedied for a period of 30 days after the date on which written notice
of such failure, requiring the same to be remedied, shall have been given
to the Servicer by the Agent or the Insurer;
(e) The entry of a decree or order for relief by a court or
regulatory authority having jurisdiction in respect of the Servicer (or
the Borrower) in an involuntary case under the Bankruptcy Code, as now or
hereafter in effect, or another present or future, federal or state,
bankruptcy, insolvency or similar law, or appointing a receiver,
liquidator, assignee, trustee, custodian, sequestrator or other similar
official of the Servicer (or the Borrower) or of any substantial part of
their respective properties or ordering the winding up or liquidation of
the affairs of the Servicer (or the Borrower) or the commencement of an
involuntary case under the
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Bankruptcy Code, as now or hereinafter in effect, or another present or
future federal or state bankruptcy, insolvency or similar law and such
case is not dismissed within 60 days;
(f) The commencement by the Servicer (or, if ACC or an Affiliate of
the Borrower is the Servicer, the Borrower) of a voluntary case under the
Bankruptcy Code, as now or hereafter in effect, or any other present or
future, federal or state, bankruptcy, insolvency or similar law, or the
consent by the Servicer (or, if ACC or an Affiliate of the Borrower is the
Servicer, the Borrower) to the appointment of or taking possession by a
receiver, liquidator, assignee, trustee, custodian, sequestrator or other
similar official of the Servicer (or, if ACC or an Affiliate of the
Borrower is the Servicer, the Borrower) or of any substantial part of its
property or the making by the Servicer (or, if ACC or an Affiliate of the
Borrower is the Servicer, the Borrower) of an assignment for the benefit
of creditors or the failure by the Servicer (or, if ACC or an Affiliate of
the Borrower is the Servicer, the Borrower) generally to pay its debts as
such debts become due or the taking of corporate action by the Servicer
(or, if ACC or an Affiliate of the Borrower is the Servicer, the Borrower)
in furtherance of any of the foregoing;
(g) Any representation, warranty or statement of the Servicer (or,
if ACC or an Affiliate of the Borrower is the Servicer, the Borrower) made
in this Agreement or any certificate, report or other writing delivered
pursuant hereto shall prove to be incorrect in any material respect as of
the time when the same shall have been made (excluding, however, any
representation or warranty set forth in the definition of "Eligible
Receivable"), and, within 30 days after written notice thereof shall have
been given to the Servicer (or, if ACC or an Affiliate of the Borrower is
the Servicer, the Borrower) by the Agent or the Insurer the circumstances
or condition in respect of which such representation, warranty or
statement was incorrect shall not have been eliminated or otherwise cured;
(h) So long as an Insurer Default shall not have occurred and be
continuing, the Insurer shall not have delivered a Servicer Extension
Notice pursuant to Section 8.14;
(i) So long as an Insurer Default shall not have occurred and be
continuing, an Insurance Agreement Event of Default shall have occurred;
(j) A claim is made under the Policy;
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(k) The average Servicer Delinquency Ratio for the preceding three
Collection Periods exceeds 8%; or
(l) The Loss Ratio exceeds 7%.
SECTION 13.2 Consequences of a Servicer Termination Event. If a Servicer
Termination Event shall occur and be continuing, the Controlling Party, by
written notice given to the Servicer, may terminate all of the rights and
obligations of the Servicer under this Agreement. On or after the receipt by the
Servicer of such written notice or, if the Insurer shall not have delivered a
Servicer Extension Notice pursuant to Section 8.14, all authority, power,
obligations and responsibilities of the Servicer under this Agreement,
automatically shall pass to, be vested in and become obligations and
responsibilities of the Backup Servicer; provided, however, that the Backup
Servicer (i) shall have no liability with respect to any obligation which was
required to be performed by the prior Servicer prior to the date that the Backup
Servicer becomes the Servicer or any claim of a third party based on any alleged
action or inaction of the prior Servicer and (ii) shall have no duty or
obligation with respect to the Servicer's obligations set forth in Section
8.8(b). The Backup Servicer is authorized and empowered by this Agreement to
execute and deliver, on behalf of the prior Servicer, as attorney-in-fact or
otherwise, any and all documents and other instruments and to do or accomplish
all other acts or things necessary or appropriate to effect the purposes of such
notice of termination, whether to complete the transfer and endorsement of the
Transferred Receivables and related documents to show the Custodian (for the
benefit of the Secured Parties) as lienholder or secured party, or otherwise.
The prior Servicer agrees to cooperate with the Backup Servicer in effecting the
termination of the responsibilities and rights of the prior Servicer under this
Agreement, including, without limitation and at the prior Servicer's expense,
the transfer to the Backup Servicer for administration by it of all cash amounts
that shall at the time be held by the prior Servicer for deposit, or have been
deposited by the prior Servicer, in the Collection Account or thereafter
received with respect to the Transferred Receivables and the delivery to the
Backup Servicer of all Receivable Files, Monthly Records and Collection Records
and a computer tape in readable form containing all information necessary to
enable the Backup Servicer or a successor Servicer to service the Transferred
Receivables. If requested by the Controlling Party, the Backup Servicer or
successor Servicer shall terminate each Lockbox Agreement and direct the
Obligors to make all payments under the Transferred Receivables directly to the
successor Servicer (in which event the successor Servicer shall process such
payments in accordance with Section 8.2(e)), or to a lockbox established by the
successor Servicer at the direction of the Insurer (unless an Insurer Default
shall have occurred and be continuing), at the prior Servicer's expense. The
Backup Servicer may set off and deduct any amounts owed by the terminated
Servicer from any amounts payable to the terminated Servicer pursuant to
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the preceding sentence. The terminated Servicer shall grant the Agent, the
Backup Servicer and the Insurer reasonable access to the terminated Servicer's
premises at the terminated Servicer's expense.
SECTION 13.3 Appointment of Successor Servicer. (a) On and after (i) the
time the Servicer receives a notice of termination pursuant to Section 13.2 or
(ii) upon the resignation of the Servicer pursuant to Section 12.5 or (iii) the
receipt by the Backup Servicer (or any alternate successor Servicer appointed by
the Insurer pursuant to Section 13.3(b)), of written notice from the Insurer
that the Insurer is not extending the Servicer's term pursuant to Section 8.14,
the Backup Servicer shall be the successor in all respects to the Servicer in
its capacity as servicer under this Agreement and the transactions set forth or
provided for in this Agreement, and shall be subject to all the
responsibilities, restrictions, duties, liabilities and termination provisions
relating thereto placed on the Servicer by the terms and provisions of this
Agreement; provided, however, that the Backup Servicer shall not be liable for
any acts, omissions or obligations of the Servicer prior to such succession or
for any breach by the Servicer of any of its representations and warranties
contained in this Agreement or in any related document or agreement. Such
successor shall take such action, consistent with this Agreement, as shall be
necessary to effectuate any such succession. If a successor Servicer is acting
as Servicer hereunder, it shall be subject to termination under Section 13.2
upon the occurrence of any Servicer Termination Event applicable to it as
Servicer.
(b) The Controlling Party may exercise at any time its right to
appoint as Backup Servicer or as successor to the Servicer a person other
than the Person serving as Backup Servicer at the time, and (without
limiting its obligations under the Policy) shall have no liability to the
Investors, the Borrower, ACC, the Person then serving as Backup Servicer
or any other Person if it does so. Notwithstanding the above, if the
Backup Servicer shall be legally unable or unwilling to act as Servicer
and an Insurer Default shall have occurred and be continuing, the Backup
Servicer may petition a court of competent jurisdiction to appoint any
Eligible Servicer as the successor to the Servicer. Pending such
appointment, the Backup Servicer shall act as successor Servicer unless it
is legally unable to do so, in which event the outgoing Servicer shall
continue to act as Servicer until a successor has been appointed and
accepted such appointment. Subject to Section 12.5, no provision of this
Agreement shall be construed as relieving the Backup Servicer of its
obligation to succeed as successor Servicer upon the termination of the
Servicer pursuant to Section 13.2 or the resignation of the Servicer
pursuant to Section 12.5. If upon the termination of the Servicer pursuant
to Section 13.2 or the resignation of the Servicer pursuant to Section
12.5, the Controlling Party
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appoints a successor Servicer other than the Backup Servicer, the Backup
Servicer shall not be relieved of its duties as Backup Servicer hereunder.
(c) Any successor Servicer shall be entitled to such compensation
(whether payable out of the Collection Account or otherwise) as the
Servicer would have been entitled to under the Agreement if the Servicer
had not resigned or been terminated hereunder. If any successor Servicer
is appointed for any reason, the Insurer and such successor Servicer may
agree on additional compensation to be paid to such successor Servicer. In
addition, any successor Servicer shall be entitled to reasonable
transition expenses incurred in acting as successor Servicer.
ARTICLE XIV
FACILITY TERMINATION EVENTS; EVENTS
OF DEFAULT; THEIR EFFECT
SECTION 14.1 Facility Termination Events. Each of the following shall
constitute a Facility Termination Event under this Agreement:
(a) Default in the payment when due of any principal of any Advance,
which default shall continue unremedied for one Business Day, or default
in the payment of any other amount payable by the Borrower hereunder,
including, without limitation, any Yield on any Advance or any Fees;
(b) (i) The Borrower shall fail to perform or observe any other
term, covenant (other than the covenant contained in Section 11.5) or
agreement contained in this Agreement, or any other Transaction Document
on its part to be performed or observed and, except in the case of the
covenants and agreements contained in Sections 11.6 and 11.7, as to each
of which no grace period shall apply, any such failure shall remain
unremedied for 30 days after knowledge thereof or after written notice
thereof shall have been given by the Agent or the Insurer to the Borrower
or (ii) the Borrower shall fail to observe the covenant contained in
Section 11.5 for five consecutive days;
(c) Any representation or warranty of the Borrower made or deemed to
have been made hereunder or in any other Transaction Document or any other
writing or certificate furnished by or on behalf of the Borrower to the
Agent or the Insurer for purposes of or in connection with this Agreement
or any other
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Transaction Document (including any certificates delivered pursuant
to Section 7.1.3 and any Servicer's Certificate or Borrowing Base
Certificate delivered pursuant to Section 11.4) shall prove to have been
false or incorrect in any material respect when made or deemed to have
been made; provided that no breach shall be deemed to occur hereunder in
respect of any representation or warranty relating to any Eligible
Receivable if as a result thereof an Event of Default under Section
14.1(a) shall not occur.
(d) An Event of Bankruptcy shall have occurred and remained
continuing with respect to the Borrower or any member of the Borrower;
(e) The aggregate principal amount of all Advances outstanding
hereunder exceeds the Borrowing Base and such condition continues
unremedied for one Business Day (such excess referred to as the "Borrowing
Base Deficiency");
(f) The Internal Revenue Service shall file notice of a lien
pursuant to Section 6323 of the Internal Revenue Code with regard to any
of the assets of the Borrower and such lien shall not have been released
within 30 days, or the Pension Benefit Guaranty Corporation shall file
notice of a lien pursuant to Section 4068 of ERISA with regard to any of
the assets of the Borrower and such lien shall not have been released
within 30 days;
(g) (i) Any Transaction Document or any lien or security interest
granted thereunder by the Borrower, shall (except in accordance with its
terms), in whole or in part, terminate, cease to be effective or cease to
be the legally valid, binding and enforceable obligation of the Borrower;
or (ii) the Borrower or any other party shall, directly or indirectly,
contest in any manner such effectiveness, validity, binding nature or
enforceability; or (iii) any security interest securing any Obligation
shall, in whole or in part, cease to be a perfected first priority
security interest against the Borrower;
(h) A Servicer Termination Event shall have occurred;
(i) The average Delinquency Ratio for the preceding four Collection
Periods exceeds 2.5%;
(j) An Insurer Default shall have occurred; or
(k) A Secondary Rating Event shall have occurred.
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SECTION 14.2 Effect of Facility Termination Event.
(a) Optional Termination. Upon notice by the Agent to the Insurer or
the Insurer to the Agent that a Facility Termination Event (other than a
Facility Termination Event described in Section 14.1(d) has occurred, the
Agent or, except with respect to the Facility Termination Events set forth
in Sections 14.1(j) and (k), the Insurer may declare all or any portion of
the outstanding principal amount of the Advances and other Obligations to
be due and payable and/or the Facility (if not theretofore terminated) to
be terminated, whereupon the full unpaid amount of such Advances and other
Obligations which shall be so declared due and payable shall be and become
immediately due and payable, without further notice, demand or
presentment, and/or, as the case may be, the Facility shall terminate.
(b) Automatic Termination. Upon the occurrence of a Facility
Termination Event described in Section 14.1(d) or upon receipt by the
Agent of notice from the Insurer that a Servicer Termination Event
described in Section 13.1(i), the Facility Termination Date shall be
deemed to have occurred automatically, and all outstanding Advances under
this Agreement and all other Obligations under this Agreement shall become
immediately and automatically due and payable, all without presentment,
demand, protest, or notice of any kind.
SECTION 14.3 Rights Upon Event of Default. (a) If an Insurer Default shall
not have occurred and be continuing and an Event of Default shall have occurred
and be continuing, the Notes shall become immediately due and payable at 100% of
the outstanding principal amount of the Notes, together with accrued Yield
thereto. If an Event of Default shall have occurred and be continuing, the
Controlling Party may direct the Custodian to exercise any of the remedies
specified in the Custodial Agreement in respect of the Collateral. In the event
of any acceleration of any Notes by operation of this Section 14.3, the
Custodian shall continue to be entitled to make claims under the Policy pursuant
to the Custodial Agreement for payments on the Notes. Payments under the Policy
following acceleration of any Notes shall be applied by the Custodian:
FIRST: to holders of the Notes for amounts due and unpaid on the
Notes for Yield, ratably, without preference or priority of any kind,
according to the amounts due and payable on the Notes for Yield; and
SECOND: to holders of the Notes for amounts due and unpaid on the
Notes for principal, ratably, without preference or priority of any kind,
according to the amounts due and payable on the Notes for principal.
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(b) In the event any Notes are accelerated due to an Event of
Default, the Insurer shall have the right (in addition to its obligation
to make payments on the Notes in accordance with the Policy), but not the
obligation, to make payments under the Policy or otherwise of interest and
principal due on such Notes, in whole or in part, on any date or dates
following such acceleration as the Insurer, in its sole discretion, shall
elect.
(c) If an Insurer Default shall have occurred and be continuing and
an Event of Default shall have occurred and be continuing, the Agent in
its discretion may, or if so requested in writing by holders of the Notes
representing not less than a majority of the outstanding principal amount
of the Notes, declare by written notice to the Borrower that the Notes
have become due and payable, whereupon they shall become, immediately due
and payable at 100% of the outstanding principal amount of the Notes,
together with accrued Yield thereon.
(d) If an Insurer Default shall have occurred and be continuing,
then at any time after such declaration of acceleration of maturity has
been made and before a judgment or decree for payment of the money due has
been obtained by the Agent as hereinafter provided, the holders of Notes
representing a majority of the outstanding principal amount of the Notes,
by written notice to the Borrower and the Agent, may rescind and annul
such declaration and its consequences if:
(i) the Borrower has paid or deposited with the Agent a sum
sufficient to pay
(A) all payments of principal of and Yield on all Notes
and all other amounts that would then be due hereunder or upon
such Notes if the Event of Default giving rise to such
acceleration had not occurred; and
(B) all sums paid or advanced by the Agent hereunder and
the reasonable compensation, expenses, disbursements and
advances of the Agent and its agents and counsel; and
(ii) all Events of Default, other than the nonpayment of the
principal of the Notes that has become due solely by such
acceleration, have been cured or waived.
No such rescission shall affect any subsequent default or impair any right
consequent thereto.
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ARTICLE XV
THE AGENT
SECTION 15.1 Authorization and Action. The Investors hereby appoint CSFB,
and, pursuant to Section 15.4 hereof, the Custodian, agent for purposes of the
Transaction Documents and authorize CSFB, in such capacity, to take such action
on behalf under each Transaction Document and to exercise such powers, hereunder
and thereunder as are delegated to the Agent by the terms hereof and thereof,
together with such powers as are reasonably incidental thereto.
SECTION 15.2 Exculpation. Neither the Agent (acting in such capacity under
the Transaction Documents) nor any of its directors, officers, agents or
employees shall be liable to any Investor for any action taken or omitted to be
taken by it or them under or in connection with the Transaction Documents,
except for its or their own gross negligence or willful misconduct. Without
limiting the generality of the foregoing, the Agent: (a) may consult with legal
counsel (including counsel for the Borrower and the Servicer), independent
certified public accountants and other experts selected by it and shall not be
liable for any action taken or omitted to be taken in good faith by it in
accordance with the advice of such counsel, accountants or experts; (b) makes no
warranty or representation to any Investor, and shall not be responsible to any
Investor, for any statements, warranties or representations made by the
Borrower, in or in connection with any Transaction Document; (c) shall not have
any duty to ascertain or to inquire as to the performance or observance of any
of the terms, covenants or conditions of any Transaction Document on the part of
the Borrower or Servicer or to inspect the property (including the books and
records) of the Borrower or Servicer; (d) shall not be responsible to any
Investor for the due execution, legality, validity, enforceability, genuineness,
sufficiency or value of this Agreement, the Note, any other Transaction Document
or any other instrument or document provided for herein or delivered or to be
delivered hereunder or in connection herewith; and (e) shall incur no liability
under or in respect of any Transaction Document by acting upon any notice
(including notice by telephone), consent, certificate or other instrument or
writing (which may be by telex or facsimile transmission) believed by it to be
genuine and signed or sent by the proper party or parties.
SECTION 15.3 Agent and Affiliates. The Agent, including, but not limited
to, CSFB and the Custodian, and any of its Affiliates may generally engage in
any kind of business with the Borrower, the Servicer, the Backup Servicer, any
Obligor, any of their respective Affiliates and any Person who may do business
with or own securities of the
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Borrower, the Servicer, the Backup Servicer, any Obligor or any of their
respective Affiliates, all as if the Agent were not the Agent hereunder and
without any duty to account therefor to any Investor.
SECTION 15.4 Replacement Agent. Upon the occurrence of the Facility
Termination Date and the sale of the Note to a Person other than the Placement
Agent, CSFB or any Lender, the Custodian shall automatically become the Agent
hereunder.
ARTICLE XVI
ASSIGNMENTS
SECTION 16.1 Restrictions on Assignments. The Borrower may not assign its
rights hereunder or any interest herein without the prior written consent of the
Agent and neither the Insurer nor any Investor may assign its rights hereunder,
any Advance or the Note (or any portion thereof) to any Person without the prior
written consent of the Borrower or the Insurer (as the Borrower only, such
consent not to be unreasonably withheld); provided, however, that any Lender may
assign, or grant a security interest in, all or any portion of the Advances and
the Note to (i) CSFB or any of its Affiliates or (ii) any Person managed by CSFB
or any of its Affiliates, and (iii) and to any Person providing liquidity with
respect to this Agreement (each, an "Eligible Assignee"), in each case under
clauses (i), (ii) and (iii) above, without the prior written consent of the
Borrower or the Insurer; provided, further, however, that after the occurrence
of the Facility Termination Date, any Lender may, subject to the provisions of
Section 16.5, assign all or a portion of any Note held by it to a Person other
than those identified in clauses (i), (ii) and (iii) above without the prior
written consent of the Borrower or the Insurer; provided, further, however, that
if the Facility Termination Date shall have occurred as a result of the
occurrence of an Insurer Default or a Secondary Rating Event, the Borrower shall
have the right, but not the obligation, to bid in any public or private sale of
the Notes to purchase the Note from the Lenders.
Within five Business Days after notice to the Borrower of any proposed
assignment by an Investor for which the Borrower's consent is required, the
Borrower agrees to advise the Agent of its consent or non-consent thereto. If
the Borrower does not consent to such assignment by the end of such five
Business Day period, such Investor may immediately assign the Advances and/or
its Note (or portion thereof) that was subject to such proposal to an Eligible
Assignee referred to in either clause (i), (ii) or (iii) of the previous
paragraph. Subject to Section 16.2, all of the aforementioned assignments
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shall be upon such terms and conditions as such Investor and the assignee may
mutually agree.
SECTION 16.2 Documentation. Each Investor shall deliver to each assignee
an assignment, in such form as such Investor and the related assignee may agree,
duly executed by such Investor assigning any such Advance to the assignee, such
Investor shall promptly execute and deliver all further instruments and
documents, and take all further action, that the assignee may reasonably
request, in order to perfect, protect or more fully evidence the assignee's
right, title and interest in and to such Advance, and to enable the assignee to
exercise or enforce any rights hereunder or under the Note evidencing such
Advance.
SECTION 16.3 Rights of Assignee. Upon the foreclosure of any assignment of
any Advances made for security purposes, or upon any other assignment of any
Advance from any Investor pursuant to this Article XVI, the respective assignee
receiving such assignment shall have all of the rights of such Investor
hereunder with respect to such Advances and all references to the Investors in
Section 6.1 shall be deemed to apply to such assignee.
SECTION 16.4 Notice of Assignment. Each Investor shall provide notice to
the Borrower of any assignment hereunder by such Investor to any assignee. Each
Investor authorizes the Agent to, and the Agent agrees that it shall, endorse
the Note to reflect any assignments made pursuant to this Article XVI or
otherwise.
SECTION 16.5 Registration; Registration of Transfer and Exchange. (a) The
Custodian shall keep a register (the "Note Register") in which, subject to such
reasonable regulations as it may prescribe, the Custodian shall provide for the
registration of Notes and of transfer of Notes. The Custodian is hereby
appointed "Note Registrar" for the purpose of registering Notes and transfers of
Notes as herein provided.
(b) Each person who has or who acquired a Note shall be deemed by
the acceptance of acquisition of such Notes to have agreed to be bound by
the provisions of this Section 16.5. No Note may be transferred, and the
Custodian shall not register the transfer of a Note, unless the proposed
transferee shall have delivered to the Custodian either (i) evidence
satisfactory to it that the transfer of a Note is exempt from registration
or qualification under the Securities Act of 1933, as amended, and all
applicable state securities laws and that the transfer does not constitute
a "prohibited transaction" under ERISA or (ii) an express agreement by the
proposed transferee to be bound by and to abide by the provisions of this
Section 16.5, the restrictions noted on the face of such Note.
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(c) At the option of the holder thereof, any Note may be exchanged
for one or more new Notes of any authorized denominations and of a like
class and aggregate principal amount at an office or agency of the
Borrower. Whenever any Notes are so surrendered for exchange, the Borrower
shall execute and the Custodian shall authenticate and deliver the new
Notes which the holder making the exchange is entitled to receive.
(d) Upon surrender for registration of transfer of any Note at an
office or agency of the Borrower, the Borrower shall execute and the
Custodian shall authenticate and deliver, in the name of the designated
transferee or transferees, one or more new Notes of any authorized
denominations and of a like class and aggregate principal amount.
(e) All Notes issued upon any registration of transfer or exchange
of any Note in accordance with the provisions of this Agreement shall be
the valid obligations of the Borrower, evidencing the same debt, and
entitled to the same benefits under this Agreement, as the Note(s)
surrendered upon such registration of transfer or exchange.
(f) Every Note presented or surrendered for registration of transfer
or for exchange shall (if so required by the Borrower or the Custodian) be
fully endorsed, or be accompanied by a written instrument of transfer in
form satisfactory to the Note Registrar, duly executed by the holder
thereof or his attorney duly authorized in writing. Each such Note shall
be accompanied by a statement providing the name of the transferee and
indicating whether the transferee is subject to income tax backup
withholding requirements and whether the transferee is the sole beneficial
owner of such Notes.
(g) No service charge shall be made for any registration of transfer
or exchange of Notes, but the Borrower may require payment from the
transferee holder of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any
registration of transfer of exchange of Notes, other than exchanges
pursuant to this Section 16.5.
(h) The holders of the Notes shall be bound by the terms and
conditions of this Agreement.
SECTION 16.6 Mutilated, Destroyed, Lost and Stolen Notes. (a) If any
mutilated Note is surrendered to the Custodian, the Borrower shall execute and
the Custodian shall
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authenticate and deliver in exchange therefor a new Note of like class and tenor
and principal amount and bearing a number not contemporaneously outstanding.
(b) If there shall be delivered to the Borrower and the Custodian
prior to the payment of the Notes (i) evidence to their satisfaction of
the destruction, loss or theft of any Note and (ii) such security or
indemnity as may be required by them to save each of them and any agent of
either of them harmless, then, in the absence of notice to the Borrower or
the Custodian that such Note has been acquired by a bona fide purchaser,
the Borrower shall execute and the Custodian shall authenticate and
deliver, in lieu of any such destroyed, lost or stolen Note, a new Note of
like class, tenor and principal amount and bearing a number not
contemporaneously outstanding.
(c) Upon the issuance of any new Note under this Section 16.6, the
Borrower may require the payment from the transferor holder of a sum
sufficient to cover any tax or other governmental charge that may be
imposed in relation thereto and any other expenses (including the fees and
expenses of the Custodian) connected therewith.
(d) Every new Note issued pursuant to this Section 16.6 and in
accordance with the provisions of this Agreement, in lieu of any
destroyed, lost or stolen Note shall constitute an original additional
contractual obligation of the Borrower, whether or not the destroyed, lost
or stolen Note shall be at any time enforceable by anyone, and shall be
entitled to all the benefits of this Agreement equally and proportionately
with any and all other Notes duly issued hereunder.
(e) The provisions of this Section 16.6 are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with respect
to the replacement or payment of mutilated, destroyed, lost or stolen
Notes.
SECTION 16.7 Persons Deemed Owners. The Borrower, the Servicer, the
Custodian and any agent of the Borrower, the Servicer or the Custodian may treat
the holder of any Note as the owner of such Note for all purposes whatsoever,
whether or not such Note may be overdue, and none of the Borrower, the Servicer,
the Custodian and any agent of the Borrower, the Servicer or the Custodian shall
be affected by notice to the contrary; provided that payment on the Stated
Maturity Date shall be made to the holder as of the preceding Record Date.
SECTION 16.8 Cancellation. All Notes surrendered for payment or
registration of transfer or exchange shall be delivered to the Custodian and
shall be promptly canceled
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by it and may be destroyed pursuant to the Custodian's securities retention
policies. The Borrower shall promptly deliver to the Custodian for cancellation
any Notes previously authenticated and delivered hereunder which the Borrower
may have acquired in any manner whatsoever, and all Notes so delivered shall be
promptly canceled by the Custodian. No Notes shall be authenticated in lieu of
or in exchange for any Notes canceled as provided in this Section 16.8, except
as expressly permitted by this Agreement.
ARTICLE XVII
INDEMNIFICATION
SECTION 17.1 General Indemnity of the Borrower. Without limiting
any other rights which any such Person may have hereunder or under applicable
law, the Borrower hereby agrees to indemnify the Agent, the Investors, the
Custodian, the Backup Servicer and each Eligible Assignee and each of their
Affiliates, and each of their respective successors, transferees, participants
and assigns and all officers, directors, shareholders, controlling persons,
employees and agents of any of the foregoing (each of the foregoing Persons
being individually called an "Indemnified Party"), forthwith on demand, from and
against any and all damages, losses, claims, liabilities and related costs and
expenses, including reasonable attorneys' fees and disbursements (all of the
foregoing being collectively called "Indemnified Amounts") awarded against or
incurred by any of them arising out of or relating to any Transaction Document
or the transactions contemplated thereby or the use of proceeds therefrom by the
Borrower, including (without limitation) in respect of the funding of any
Advance or in respect of any Transferred Receivable, excluding, however, (a)
Indemnified Amounts to the extent determined by a court of competent
jurisdiction to have resulted from gross negligence or willful misconduct on the
part of any Indemnified Party or its agent or subcontractor, (b) non-payment by
any Obligor of an amount due and payable with respect to a Transferred
Receivable, (c) any loss in value of any Financed Vehicle or Permitted
Investment due to changes in market conditions or for other reasons beyond the
control of the Borrower or (d) any tax upon or measured by net income on any
Indemnified Party. Without limiting the foregoing, but subject to the exclusions
(a) through (d) above, the Borrower agrees to indemnify each Indemnified Party
for Indemnified Amounts arising out of or relating to:
(i) the grant of a security interest to the Custodian (for the
benefit of the Secured Parties);
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(ii) the breach of any representation or warranty made by the
Borrower (or any of its officers) under or in connection with this
Agreement or the other Transaction Documents, any Servicer's
Certificate, Borrowing Base Certificate or any other information,
report or certificate delivered by the Borrower or Servicer pursuant
hereto or thereto, which shall have been false or incorrect in any
material respect when made or deemed made;
(iii) the failure by the Borrower to comply in any material
way with any applicable law, rule or regulation with respect to any
Transferred Receivable or any Financed Vehicle, or the nonconformity
of any Transferred Receivable with any such applicable law, rule or
regulation;
(iv) the failure to vest and maintain vested in the Custodian,
for the benefit of the Secured Parties, a first-priority security
interest in all the Collateral, free and clear of any Lien, other
than a Lien arising solely as a result of an act of any Investor, or
any assignee of any Investor;
(v) the failure to file, or any delay in filing, financing
statements or other similar instruments or documents under the UCC
of any applicable jurisdiction or other applicable laws with respect
to any Collateral;
(vi) any dispute, claim, offset or defense (other than
discharge in bankruptcy) of an Obligor to the payment of any
Transferred Receivable (including, without limitation, a defense
based on such Transferred Receivable not being a legal, valid and
binding obligation of such Obligor enforceable against it in
accordance with its terms);
(vii) any failure of ACC or an Affiliate of the Borrower, as
Servicer, or otherwise, to perform its duties or obligations in
accordance with the provisions of Article VIII or any provision
contained in any Transaction Document;
(viii) any claim involving products liability that arises out
of or relates to merchandise or services that are the subject of any
Transferred Receivable or strict liability claim in connection with
any Financed Vehicle;
(ix) any tax or governmental fee or charge (but not including
taxes upon or measured by net income), all interest and penalties
thereon or with respect thereto, and all out-of-pocket costs and
expenses, including the reasonable fees and expenses of counsel in
defending against the same,
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which may arise by reason of the making, maintenance or funding,
directly or indirectly, of any Advance, or any other interest in the
Collateral; or
(x) the commingling of the proceeds of Collateral at any time
with other funds.
SECTION 17.2 [Intentionally left blank]
SECTION 17.3 Sale. (a) If for any reason (other than the exclusions (a)
through (d) set forth in the first paragraph of Section 17.1) the
indemnification provided above in Section 17.1 is unavailable to an Indemnified
Party or is insufficient to hold an Indemnified Party harmless, then the
Borrower shall contribute to the amount paid or payable by such Indemnified
Party as a result of such loss, claim, damage or liability in such proportion as
is appropriate to reflect not only the relative benefits received by such
Indemnified Party, on the one hand, and the Borrower, on the other hand, but
also the relative fault of such Indemnified Party, on the one hand, and the
Borrower, on the other hand, as well as any other relevant equitable
considerations.
(b) If for any reason (other than the exclusions (1) through (4) set
forth in Section 12.1(f)) the indemnification provided above in Section
12.1 is unavailable to an Indemnified Party or is insufficient to hold an
Indemnified Party harmless, then the Servicer shall contribute to the
amount paid or payable by such Indemnified Party as a result of such loss,
claim, damage or liability in such proportion as is appropriate to reflect
not only the relative benefits received by such Indemnified Party, on the
one hand, and the Servicer, on the other hand, but also the relative fault
of such Indemnified Party, on the one hand, and the Servicer, on the other
hand, as well as any other relevant equitable considerations.
ARTICLE XVIII
MISCELLANEOUS
SECTION 18.1 No Waiver; Remedies. No failure on the part of any Investor,
the Agent, any Indemnified Party or any Affected Person to exercise, and no
delay in exercising, any right, power or remedy hereunder shall operate as a
waiver thereof; nor shall any single or partial exercise by any of them of any
right, power or remedy hereunder preclude any other or further exercise thereof,
or the exercise of any other right, power or remedy. The remedies herein
provided are cumulative and not exclusive of any remedies provided by law.
Without limiting the foregoing, each Eligible Assignee
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is hereby authorized by the Borrower at any time and from time to time, to the
fullest extent permitted by law, to set off and apply any and all deposits
(general or special, time or demand, provisional or final) at any time held and
other indebtedness at any time owing by it to or for the credit or the account
of the Borrower, now or hereafter existing under this Agreement, to the Agent,
any Affected Person, any Indemnified Party or any Investor or their respective
successors and assigns.
SECTION 18.2 Amendments, Waivers. No amendment, modification or waiver of,
or consent with respect to, any provision of this Agreement and any Schedules
hereto, or the Note shall in any event be effective unless the same shall be in
writing and signed and delivered by (i) the Borrower, the Insurer and the Agent
(with respect to an amendment), (ii) the Agent and the Insurer (with respect to
a waiver or consent) or the Borrower (with respect to a waiver or consent by
it), or (iii) the Agent and the Insurer (with respect to a waiver of any Event
of Default), as the case may be, and then any such waiver or consent shall be
effective only in the specific instance and for the specific purpose for which
given.
SECTION 18.3 Notices, Etc. All notices and other communications provided
for hereunder shall, unless otherwise stated herein, be in writing (including
facsimile communication) and shall be personally delivered or sent by certified
mail, postage prepaid, or by facsimile, to the intended party at the address or
facsimile number of such party set forth under its name on the signature pages
hereof or at such other address or facsimile number as shall be designated by
such party in a written notice to the other parties hereto. All such notices and
communications shall be effective, (a) if personally delivered, when received,
(b) if sent by certified mail, three Business Days after having been deposited
in the mail, postage prepaid, (c) if sent by overnight courier, one Business Day
after having been given to such courier, and (d) if transmitted by facsimile,
when sent, receipt confirmed by telephone or electronic means, except that
notices and communications pursuant to Section 2.2 shall not be effective until
received.
SECTION 18.4 Costs, Expenses and Taxes. (a) In addition to the rights of
indemnification granted under Section 17.1, the Borrower agrees to pay on demand
all reasonable costs and expenses in connection with the preparation, execution,
delivery and administration of this Agreement, the liquidity asset purchase
agreement or other liquidity support facility and the other documents and
agreements to be delivered hereunder, and any amendments, waivers or consents
executed in connection with this Agreement and the liquidity asset purchase
agreement or other liquidity support facility, including, without limitation,
the reasonable fees and out-of-pocket expenses of counsel for the Agent, CSFB,
the Investors and their respective Affiliates with respect thereto and with
respect to advising the Agent, CSFB, the Investors and their respective
Affiliates as to
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their rights and remedies under this Agreement and the liquidity asset purchase
agreement or other liquidity support facility, and all costs and expenses, if
any (including reasonable counsel fees and expenses), of the Agent, CSFB, the
Investors and their respective Affiliates, in connection with the enforcement of
this Agreement and the liquidity asset purchase agreement or other liquidity
support facility and the other documents and agreements to be delivered
hereunder.
(b) In addition, the Borrower shall pay (i) any and all commissions
of placement agents and commercial paper dealers in respect of commercial
paper notes issued to fund the making or maintenance of any Advance, (ii)
any and all reasonable costs and expenses of any issuing and paying agent
or other Person responsible for the administration of Alpine's commercial
paper program in connection with the preparation, completion, issuance,
delivery or payment of commercial paper notes issued to fund the making or
maintenance of any Advance, and (iii) any and all stamp and other taxes
and fees payable in connection with the execution, delivery, filing and
recording of this Agreement or the other documents or agreements to be
delivered hereunder, and agrees to save each Indemnified Party harmless
from and against any liabilities with respect to or resulting from any
delay in paying or omission to pay such taxes and fees.
SECTION 18.5 Binding Effect; Survival. This Agreement shall be binding
upon and inure to the benefit of the Borrower, the Investors, the Agent and
their respective successors and assigns, and the provisions of Article VI and
Article XVII shall inure to the benefit of the Affected Persons and the
Indemnified Parties, respectively, and their respective successors and assigns;
provided, however, nothing in the foregoing shall be deemed to authorize any
assignment not permitted by Article XVI. This Agreement shall create and
constitute the continuing obligations of the parties hereto in accordance with
its terms, and shall remain in full force and effect until such time, after the
Facility Termination Date when all Obligations have been finally and fully paid
and performed. The rights and remedies with respect to any breach of any
representation and warranty made by the Borrower pursuant to Article IX and the
indemnification and payment provisions of Article VI and Article XVII shall be
continuing and shall survive any termination of this Agreement and any
termination of ACC's rights to act as Servicer hereunder or under any other
Transaction Document.
SECTION 18.6 Captions and Cross References. The various captions
(including, without limitation, the table of contents) in this Agreement are
provided solely for convenience of reference and shall not affect the meaning or
interpretation of any provision of this Agreement. Unless otherwise indicated,
references in this Agreement to any Section, Schedule or Exhibit are to such
Section of or Schedule or Exhibit to this
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Agreement, as the case may be, and references in any Section, subsection, or
clause to any subsection, clause or subclause are to such subsection, clause or
subclause of such Section, subsection or clause.
SECTION 18.7 Severability. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions of this Agreement or affecting the
validity or enforceability of such provision in any other jurisdiction.
SECTION 18.8 Governing Law. THIS AGREEMENT AND THE NOTE SHALL BE A
CONTRACT MADE UNDER AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO ANY OTHERWISE APPLICABLE CONFLICT OF LAW PRINCIPLES.
SECTION 18.9 Counterparts. This Agreement may be executed by the parties
hereto in several counterparts, each of which shall be deemed to be an original
but all of which shall constitute together but one and the same agreement.
SECTION 18.10 WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO HEREBY
KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ANY RIGHTS IT MAY HAVE TO A
TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF,
UNDER, OR IN CONNECTION WITH, THIS AGREEMENT OR ANY OTHER TRANSACTION DOCUMENT,
OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR
WRITTEN) OR ACTIONS OF THE BORROWER, THE AGENT, THE INVESTORS OR ANY OTHER
AFFECTED PERSON. THE BORROWER, ACKNOWLEDGES AND AGREES THAT IT HAS RECEIVED FULL
AND SUFFICIENT CONSIDERATION FOR THIS PROVISION (AND EACH OTHER PROVISION OF
EACH OTHER TRANSACTION DOCUMENT TO WHICH IT IS A PARTY) AND THAT THIS PROVISION
IS A MATERIAL INDUCEMENT FOR THE AGENT AND THE INVESTORS ENTERING INTO THIS
AGREEMENT AND EACH SUCH OTHER TRANSACTION DOCUMENT.
SECTION 18.11 Third Party Beneficiary. This Agreement shall inure to the
benefit of and be binding upon the parties hereto and their respective
successors and permitted assigns. The Insurer and its successors and assigns
shall be a third party beneficiary to the provisions of this Agreement, and
shall be entitled to rely upon and directly to enforce such provisions of this
Agreement so long as no Insurer Default shall have occurred and be continuing.
Except as expressly stated otherwise in the Agreement
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any right of the Insurer to direct, appoint, consent to, approve of, or take any
action under the Agreement or the Custodial Agreement, shall be exercised by the
Insurer in its sole and absolute discretion.
SECTION 18.12 No Proceedings. (a) Each of the Borrower, the
Servicer, the Backup Servicer, each Investor (other than Alpine) and the Insurer
hereby agrees that it will not institute against Alpine, or join any other
Person in instituting against Alpine, any insolvency proceeding (namely, any
proceeding of the type referred to in the definition of Event of Bankruptcy) so
long as any commercial paper or other senior indebtedness issued by Alpine shall
be outstanding or there shall not have elapsed one year plus one day since the
last day on which any such commercial paper or other senior indebtedness shall
be outstanding. The foregoing shall not limit such Person's right to file any
claim in or otherwise take any action with respect to any insolvency proceeding
that was instituted by any Person other than such Person.
(b) Each of the Servicer, the Backup Servicer, each Investor, the
Agent, the Insurer and any assignee of the Note hereby agrees that it will
not institute against Alpine or the Borrower, or join any other Person in
instituting against Alpine or the Borrower, any insolvency proceeding
(namely, any proceeding of the type referred to in the definition of Event
of Bankruptcy) so long as, in the case of Alpine, any commercial paper or
other senior indebtedness issued by Alpine shall be outstanding or there
shall not have elapsed one year plus one day since the last day on which
any such commercial paper or other senior indebtedness shall be
outstanding and, in the case of the Borrower, any Advances or other
amounts due from the Borrower hereunder shall be outstanding or there
shall not have elapsed one year plus one day since the last day on which
any such Advances or other amounts shall be outstanding. The foregoing
shall not limit such Person's right to file any claim in or otherwise take
any action with respect to any insolvency proceeding that was instituted
by any Person other than such Person.
SECTION 18.13 ENTIRE AGREEMENT. THIS AGREEMENT AND THE OTHER TRANSACTION
DOCUMENTS EXECUTED AND DELIVERED HEREWITH REPRESENT THE FINAL AGREEMENT BETWEEN
THE PARTIES HERETO AND THERETO AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO
UNWRITTEN ORAL AGREEMENTS AMONG THE PARTIES.
SECTION 18.14 Preference Claims. (a) In the event that the Custodian or
the Agent has received a certified copy of an order of the appropriate court
that any amount
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paid on a Note has been avoided in whole or in part as a preference payment
under applicable bankruptcy law, the Custodian or the Agent shall so notify the
Insurer and shall comply with the provisions of the Policy to obtain payment by
the Insurer of such avoided payment. The Agent shall furnish to the Insurer its
records evidencing the payments of principal of and interest on Notes, if any,
which have been made by the Agent and subsequently recovered from Investors, and
the dates on which such payments were made. Pursuant to the terms of the Policy,
the Insurer will make such payment on behalf of the Investors to the receiver,
conservator, debtor-in-possession or trustee in bankruptcy named in the Order
(as defined in the Policy) and not to the Agent or any Investor directly (unless
an Investor has previously paid such payment to the receiver, conservator,
debtor-in-possession or trustee in bankruptcy, in which case the Insurer will
make such payment to the Agent for distribution to such Investor upon proof of
such payment reasonably satisfactory to the Insurer).
(b) The Agent shall promptly notify the Insurer of any proceeding or
the institution of any action (of which the Agent has actual knowledge)
seeking the avoidance as a preferential transfer under applicable
bankruptcy, insolvency, receivership, rehabilitation or similar law (a
"Preference Claim") of any distribution made with respect to the Notes.
Each Investor, by its purchase of Notes, and the Agent hereby agree that
so long as an Insurer Default shall not have occurred and be continuing,
the Insurer may at any time during the continuation of any proceeding
relating to a Preference Claim direct all matters relating to such
Preference Claim including, without limitation, (i) the direction of any
appeal of any order relating to any Preference Claim and (ii) the posting
of any surety, supersedes or performance bond pending any such appeal at
the expense of the Insurer, but subject to reimbursement as provided in
the Indemnity Agreement. In addition, and without limitation of the
foregoing, as set forth in Section 30(b) of the Custodial Agreement, the
Insurer shall be subrogated to, and each Investor and the Agent hereby
delegate and assign, to the fullest extent permitted by law, the rights of
the Agent and each Investor in the conduct of any proceeding with respect
to a Preference Claim, including, without limitation, all rights of any
party to an adversary proceeding action with respect to any court order
issued in connection with any such Preference Claim.
SECTION 18.15 Subrogation. Any and all amounts claimed under the Policy
and disbursed by the Custodian from claims made under the Policy shall not be
considered payment by the Borrower with respect to such Notes or otherwise, and
shall not discharge the obligations of the Borrower with respect thereto. The
Insurer shall, to the extent it makes any payment with respect to the Notes or
the Post Termination Fee, become subrogated to the rights of the recipients of
such payments to the extent of such payments.
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Subject to and conditioned upon any payment with respect to the Notes or the
Post Termination Fee by or on behalf of the Insurer, the Custodian shall assign
to the Insurer all rights to the payment of Yield or principal with respect to
the Notes or the Post Termination Fee which are then due for payment to the
extent of all payments made by the Insurer, and the Insurer may exercise any
option, vote, right, power or the like with respect to the Notes to the extent
that it has made payment of principal and Yield pursuant to the Policy. To
evidence such subrogation, the Custodian shall note the Insurer's rights as
subrogee upon the Note Register upon receipt from the Insurer of proof of
payment by the Insurer hereunder and under the Policy. The foregoing subrogation
shall in all cases be subject to the rights of the Investors to receive all
payments in respect of the Notes.
ARTICLE XIX
THE CUSTODIAN AS AGENT
The provisions of this Article XIX shall apply only to the extent that the
Custodian becomes the Agent following the Remarketing Date.
SECTION 19.1 Duties of the Agent. (a) Subject to paragraph (c) of this
Section 19.1, the Agent undertakes to perform as Agent such duties and only such
duties as are specifically set forth in this Agreement.
(b) The Agent, upon receipt of any resolutions, certificates,
statements, opinions, reports, documents, orders or other instruments
furnished to the Agent that are specifically required to be furnished
pursuant to any provisions of this Agreement, shall examine them to
determine whether they conform to the requirements of this Agreement.
(c) No provision of this Agreement shall be construed to relieve the
Agent from liability for its own negligent action, its own negligent
failure to act (other than errors in judgment) or its own bad faith or
willful misfeasance; provided however, that:
(i) the duties and obligations of the Agent shall be
determined solely by the express provisions of this Agreement, the
Agent shall not be liable except for the performance of such duties
and obligations as are specifically set forth in this Agreement, no
implied covenants or obligations shall be read into this Agreement
against the Agent and, in the absence of bad faith on the part of
the Agent, the Agent may conclusively rely as to the
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truth of the statements and the correctness of the opinions
expressed therein, upon any certificates or opinions furnished to
the Agent and conforming to the requirements of this Agreement;
(ii) the Agent shall not be liable for an error of judgment
made in good faith by a Responsible Officer of the Agent, unless it
shall be proven that the Agent was negligent in performing its
duties in accordance with the terms of this Agreement;
(iii) the Agent shall not be liable for any action taken,
suffered or omitted to be taken by it in good faith and reasonably
believed by it to be authorized or within the discretion or rights
or powers conferred upon it by this Agreement; and
(iv) the Agent shall not be liable for any action it takes or
omits to take in good faith at the direction of the Controlling
Party or the holders of the Notes; provided that the Agent shall not
be authorized hereunder to comply with any direction which is not
authorized by the terms of this Agreement.
(d) Notwithstanding any other provision of this Agreement, the Agent
shall not be required to expend or risk its own funds or otherwise incur
financial liability in the performance of any of its duties under this
Agreement, or in the exercise of any of its rights or powers, if there is
reasonable ground for believing that the repayment of such funds or
adequate indemnity against such risk or liability is not reasonably
assured to it, and none of the provisions contained in this Agreement
shall in any event require the Agent to perform, or be responsible for the
manner of performance of, any of the obligations of the Servicer under
this Agreement except during such time, if any, as the Back-Up Servicer
(if the Agent and the Back-up Servicer are the same entity) shall be the
successor to, and be vested with the rights, duties, powers and privileges
of, the Servicer in accordance with the terms of this Agreement.
(e) The Agent shall not be charged with knowledge of any failure by
the Servicer to comply with the obligations of the Servicer referred to in
this Agreement, unless a Responsible Officer obtains actual knowledge of
such failure (it being understood that knowledge of the Servicer is not
attributable to the Agent) or the Agent receives written notice of such
failure from the Servicer or any holders of the Notes.
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(f) Except for actions expressly authorized by this Agreement, the
Agent shall take no action reasonably likely to impair the security
interests created or existing under any Receivable or Finance Vehicle or
to impair the value of any Receivable or Financed Vehicle.
SECTION 19.2 Certain Matters Affecting the Agents. Except as otherwise
provided in Section 19.1(c):
(a) The Agent may rely and shall be protected in acting or
refraining from acting upon any resolution, officer's certificate,
certificate of auditors or any other certificate, statement, instrument,
opinion, report, notice, request, consent, order, appraisal, bond or other
paper or document believed by it to be genuine and to have been signed or
presented by the proper party or parties;
(b) The Agent may consult with counsel, and any Opinion of Counsel
shall be full and complete authorization and protection in respect of any
action taken or suffered or omitted by the Agent under this Agreement in
good faith and in accordance with such Opinion of Counsel;
(c) Notwithstanding anything to the contrary, the Agent shall be
under no obligation to exercise any of the rights or powers vested in it
by this Agreement, or to institute, conduct or defend any litigation under
this Agreement or in relation to this Agreement, at the request, order or
direction of any of the holders of the Notes pursuant to the provisions of
this Agreement unless such holders shall have furnished to the Agent
security or indemnity satisfactory to the Agent against the costs,
expenses and liabilities that may be incurred therein or thereby;
provided, however, that the Agent shall, upon the occurrence of a Servicer
Termination Event (that has not been cured), exercise the rights and
powers vested in it by this Agreement with reasonable care and skill;
(d) The Agent shall not be bound to make any investigation into the
facts of matters stated in any resolution, certificate, statement,
instrument opinion, report, notice, request, consent, order, approval,
bond or other paper or documents, unless requested in writing to do so by
holders of Notes evidencing not less than 25% of the outstanding principal
balance of the Notes; provided, however, that if the payment within a
reasonable time to the Agent of the costs, expenses or liabilities likely
to be incurred by it in the making of such investigation is, in the
opinion of the Agent, not reasonably assured to the Agent by the security
afforded to it by the terms of this Agreement, the Agent may require
indemnity satisfactory to it against such cost, expense or liability as a
condition to so proceeding; the
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reasonable expense of every such examination shall be paid by the Person
making such request or, if paid by the Agent, shall be reimbursed by the
Person making such request upon demand;
(e) The Agent may execute any of the trusts or powers under this
Agreement or perform any duties under this Agreement either directly or by
or through agents or attorneys or custodians. The Agent shall not be
responsible for any misconduct or negligence on the part of any agent or
attorney appointed with due care by the Agent. The Agent shall not be
responsible for any misconduct or negligence attributable to the acts or
omissions of the Servicer;
(f) The Agent may rely, as to factual matters relating to the
servicer, on an Officer's Certificate of the Servicer; and
(g) The Agent shall not be required to take any action or refrain
from taking any action under this Agreement, or any Transaction Document
referred to herein, nor shall any provision of this Agreement or any such
Transaction Document be deemed to impose a duty on the agent to take
action, if the Agent shall have been advised by counsel that such action
is contrary to the terms of this Agreement or any Transaction Document or
is contrary to law.
SECTION 19.3 Agent Not Liable for Notes or Receivables. The Agent makes no
representations as to the validity or sufficiency of this Agreement or of the
Notes (other than the execution of the Notes or of any Receivable or Transaction
Document, except to the extent otherwise expressly provided herein. The Agent
shall at no time (except during such time, if any, as it is acting a successor
Servicer) have any responsibility or liability for or with respect to the
legality, validity or enforceability of any security interest in any Financed
Vehicle or any Receivable, or the perfection and priority of such a security
interest or the maintenance of any such perfection and priority, or for or with
respect to the efficiency of the Collateral or its ability to generate the
payments to be distributed to holders of the Notes under this Agreement,
including, without limitation, the existence, condition, location and ownership
of any Financed Vehicle; the performance or enforcement of any Receivable; the
compliance by the Seller, the Servicer or the Custodian with any covenant or the
breach by the Seller or the Servicer, of any warranty or representation made
under this Agreement or in any related document and the accuracy of any such
warranty or representation prior to the Agent's receipt of notice or other
discovery of any noncompliance therewith or any breach thereof, any investment
of monies by or at the direction of the Servicer or any loss resulting therefrom
(it being understood, however, that the Agent shall remain otherwise responsible
for any Collateral that it may hold directly); the acts or omissions of the
Servicer, the Custodian (if other
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than the Agent), the Seller or any Obligor, any action of the Servicer taken in
the name of the Agent; or any action by the Agent taken at the instruction of
the Servicer, the Seller, or the holders of Notes holding the requisite
percentage of Notes; provided, however, that the foregoing shall not relieve the
Agent of its obligations to perform its duties under this Agreement, whether as
Agent or as Back-up Servicer. The Agent shall not be accountable for the use or
application by the Seller of any of the Notes or of the proceeds of such Notes,
or for the use or application of any funds paid to the Servicer in respect of
the Transferred Receivables prior to the time such funds are deposited in the
Collection Account.
SECTION 19.4 Agent May Own Notes. The Agent in its individual or any other
capacity may become the owner or pledgee of Notes with the same rights as it
would have if it were not the Agent and may deal with the Servicer in banking
transactions with the same rights as it would have if it were not the Agent.
SECTION 19.5 Agent's Indemnification. The Borrower and the Servicer shall
indemnify, defend, and hold harmless the Agent and the Back-up Servicer from and
against all costs, expenses, losses, claims, damages and liabilities arising out
of or incurred in connection with the acceptance of the performance of the
trusts and duties contained in this Agreement, except to the extent that such
cost, expense, loss, claim, damage or liability is due to the bad faith or
negligence (except for errors in judgment) of the Agent or the Back-up Servicer,
respectively. In addition, the Borrower in Section 17.1 has agreed to indemnify
the Agent with respect to certain matters. The provisions of this Section 19.5,
(i) shall not terminate or be deemed released upon the resignation or
termination of ACC Consumer Finance Corporation as the Servicer, (ii) shall
survive any termination of this Agreement and (iii) shall continue for the
benefit of any trustee which has resigned or been removed.
SECTION 19.6 Eligibility Requirements for Agent. The Agent under this
Agreement shall at all times be a corporation duly organized and validly
existing under the laws of its jurisdiction of incorporation authorized under
such laws to exercise corporate trust powers, having a combined capital and
surplus of at least $50,000,000 and subject to supervision or examination by
federal or state authority. If such corporation publishes reports of condition
at least annually, pursuant to law or to the requirements of the aforesaid
supervising or examining authority, then for the purpose of this Section 19.6,
the combined capital and surplus of such corporation shall be deemed to be its
combined capital and surplus as set forth in its most recent report of condition
so published. In case at any time the agent shall cease to be eligible in
accordance with the provisions of this Section 19.6, the Agent shall resign
immediately in the manner and with the effect specified in Section 19.6.
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SECTION 19.7 Resignation or Removal of Agent. (a) Subject to the
provisions of subsection (c) of this Section 19.7, the Agent may at any time
resign from the trusts created by this Agreement by giving 30 days' written
notice thereof to the Servicer and the Borrower. Upon receiving such notice of
resignation, the Servicer, shall promptly appoint a successor Agent by written
instrument, in duplicate, one copy of which instrument shall be delivered to the
resigning Agent and one copy to the successor Agent. If no successor Agent shall
have been so appointed and have accepted appointment within thirty (30) days
after the giving of such notice of resignation, the resigning Agent may petition
any court of competent jurisdiction for the appoint of a successor Agent.
(b) If at any time the Agent shall cease to be eligible in
accordance with the provisions of this Section 19.7 and shall fail to
resign after written request therefor by the Servicer or the Borrower, or
if at any time the Agent shall be legally unable to act, or shall be
adjudged a bankrupt or insolvent or a receiver of the Agent or of its
property shall be appointed or any public officer shall take charge or
control of the Agent or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation, then the Servicer or the
Borrower shall remove the Agent. If the Servicer or the Borrower, as the
case may be, removed the Agent under the authority of the immediately
preceding sentence, the Servicer or the Borrower, as the case may be,
shall promptly appoint a successor Agent by written instrument, in
duplicate, one copy of which instrument shall be delivered to the Agent so
removed and one copy to the successor Agent. The Servicer or Agent, as the
case may be, shall also pay all fees due and owing to the outgoing Agent.
(c) Any resignation or removal of the Agent and appointment of a
successor Agent pursuant to any of the provisions of this Section 19.7
shall not become effective until acceptance of appointment by the
successor agent as provided in Section 19.8.
(d) If the Agent and the Back-up Servicer shall be the same Person
and the rights and obligations of the Back-up Servicer shall have been
terminated, then the Controlling Party shall have the option, by sixty
(60) days' prior notice in writing to the Borrower, the Seller, the
Servicer and the Agent to remove the Agent.
SECTION 19.8 Successor Agent. Any successor Agent appointed as provided in
Section 19.7 shall execute, acknowledge and deliver to the Servicer, and to its
predecessor Agent an instrument accepting such appointment under this Agreement,
and
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thereupon the resignation or removal of the predecessor Agent shall become
effective and such successor agent, without any further act, deed or conveyance
(except as provided below), shall become fully vested with all the rights,
power, duties and obligations of its predecessor under this Agreement, with like
effect as if originally named as Agent; but, on request of the Servicer, or the
successor Agent, such predecessor Agent shall, upon payment of its charges then
unpaid, execute and deliver an instrument transferring to such successor Agent
all of the rights, powers and trusts of the Agent so ceasing to act, and shall
duly assign, transfer and deliver to such successor agent all property and money
held by such agent so ceasing to act hereunder. Upon request of any such
successor Agent, the Borrower shall execute any and all instruments for more
fully and certainly vesting in and confirming to such successor Agent all such
rights, powers and trusts. The predecessor Agent shall deliver to the successor
Agent all documents and statements held by it under this Agreement or any
Transaction Document; and the predecessor Agent and the other parties to the
Transaction Documents shall amend any Transaction Document to make the successor
Agent the successor to the predecessor Agent thereunder; and the Servicer and
the predecessor Agent shall execute and deliver such instruments and do such
other things as may reasonably be required for fully and certainly vesting and
confirming in the successor Agent all such rights, powers, duties and
obligations. No successor Agent shall accept appointment as provided in this
Section 19.8 unless at the time of such acceptance such successor Agent shall be
eligible under the provisions of Section 19.6. Upon acceptance of appointment by
a successor Agent as provided in this Section 19.8, the Borrower shall mail
notice by first-class mail of the successor of such Agent and the address of the
successor Agent's corporate trust office under this Agreement to all holders of
Notes at their addresses as shown in the Note Register. If the Borrower fails to
mail such notice within ten (10) days after acceptance of appointment by the
successor Agent, the successor Agent shall cause such notice to be mailed at the
expense of the Agent.
SECTION 19.9 Merger or Consolidation of Agent. Any corporation into which
the Agent may be merged or with which it may be consolidated, or any corporation
resulting from any merger or consolidation to which the Agent shall be a party,
or any corporation succeeding to the corporate trust business of the Agent,
shall be the successor of the Agent under this Agreement, provided such
corporation shall be eligible under the provisions of Section 19.6, without the
execution or filing of any instrument or any further act on the part of any of
the parties to this Agreement, anything in this Agreement to the contrary
notwithstanding. The Agent or its successor hereunder shall provide the Servicer
with prompt notice of any such transaction.
SECTION 19.10 Appointment of Co-Agent or Separate Agent. (a)
Notwithstanding any other provisions of this Agreement, at any time, for the
purpose of meeting any legal requirements of any jurisdiction in which any part
of the Collateral or any
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Financed Vehicle may at the time be located, the Agent, with the consent of the
Servicer shall have the power and may execute and deliver all instruments to
appoint one or more Persons approved by the Agent to act as co-agent or
co-agents, jointly with the Agent, or separate agent or separate agents, of all
or any part of the Collateral, and to vest in such Person or Persons, in such
capacity and for the benefit of the Investors, such title to the Collateral, or
any part thereof, and, subject to the other provisions of this Section 19.10,
such powers, duties, obligations, rights and trusts as the Servicer and the
Agent may consider necessary or desirable. If the Servicer shall not have
consented to such appointment within fifteen (15) days after the receipt by it
of a request to do so, or if a Servicer Termination Event shall have occurred
and be continuing, the consent of the Servicer shall not be required. No
co-agent or separate agent under this Agreement shall be required to meet the
terms of eligibility as a successor agent under Section 19.6 and no notice to
holders of Notes of the appointment of any co-agent or separate agent shall be
required under Section 19.8. Every separate agent and co-agent shall, to the
extent permitted by law, be appointed and act subject to the following
provisions and conditions:
(i) All rights, powers, duties and obligations conferred or
imposed upon the Agent shall be conferred or imposed upon and
exercised or performed by the Agent and such separate agent or
co-agent jointly (it being understood that such separate agent or
co-agent is not authorized to act separately without the Agent
joining in such act), except to the extent that under any law of any
jurisdiction in which any particular act or acts are to be performed
by the Agent, the Agent shall be incompetent or unqualified to
perform such act or acts, in which event such rights, powers, duties
and obligations (including the holding of title to the Collateral or
any portion thereof in any such jurisdiction) shall be exercised and
performed singly by such separate agent or co-agent, but solely at
the direction of the Agent;
(ii) No trustee under this Agreement shall be personally
liable by reason of any act or omission of any other agent under
this Agreement; and
(iii) The Servicer and the Agent acting jointly may at any
time accept the resignation of or remove any separate agent or
co-agent.
(b) Any notice, request or other writing given to the Agent shall be
deemed to have been given to each of the then separate agent and co-agent,
as effectively as if given to each of them. Every instrument appointing
any separate agent or co-agent shall refer to this Agreement and the
conditions of this Article XIX. Each separate agent and co-agent, upon its
acceptance of the trusts
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conferred, shall be vested with the estates of property specified in its
instrument of appointment, either jointly with the Agent or separately, as
may be provided therein, subject to all the provisions of this Agreement,
specifically including every provision of this Agreement relating to the
conduct of, affecting the liability of, or affording protection to, the
Agent. Every such instrument shall be filed with the Agent and a copy
thereof given to the servicer.
(c) Any separate agent or co-agent may, at any time constitute the
Agent, its agent or attorney-in-fact, with full power and authority, to
the extent not prohibited by law, to do any lawful act under or in respect
of this Agreement on its behalf and in its name. If any separate agent or
co-agent shall die, become incapable of acting, resign or be removed, all
of its estates, properties, rights, remedies and trusts shall vest in and
be exercised by the Agent, to the extent permitted by law, without the
appointment of a new or successor agent.
SECTION 19.11 Agent May Enforce Claims Without Possession of Notes. All
rights of action and claims under this Agreement or the Notes may be prosecuted
and enforced by the Agent without the possession of any of the Notes or the
production thereof in any proceeding relating thereto, and any such proceeding
instituted by the Agent shall be brought in its own name as agent. Any recovery
of judgment shall, after provision for the payment of the reasonable
compensation, expenses, disbursements and advances of the Agent, its agents and
counsel, be for the ratable benefit of the Investors in respect of which such
judgment has been obtained.
SECTION 19.12 Suit for Enforcement. If a Servicer Termination Event shall
occur and be continuing, the Agent, in its discretion may (but shall have no
duty or obligation so to proceed), subject to the provisions of Section 19.1,
proceed to protect and enforce its rights and the rights of the Investors under
this Agreement by a suit, action or proceeding in equity or at law or otherwise,
whether for the specific performance of any covenant or agreement contained in
this Agreement or in aid of the execution of any power granted in this agreement
or for the enforcement of any other legal, equitable or other remedy as the
Agent, being advised by counsel, shall deem most effectual to protect and
enforce any of the rights of the Agent or the Investors.
[signature pages begin on next page]
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IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
by their respective officers thereunto duly authorized as of the day and year
first above written.
ACC LIQUIDITY LLC
By: ACC Funding Corp.
By: /s/ XXXX X. XXXXXXX
----------------------------
Name: Xxxx X. Xxxxxxx
Title: President
00000 Xxxx Xxxxx Xxxxx
Xxxxx 000
Xxx Xxxxx, Xxxxxxxxxx 00000
Attention: President
Facsimile No.: (000) 000-0000
ACC CONSUMER FINANCE
CORPORATION
By: /s/ XXXX X. XXXXXXX
------------------------------
Name: Xxxx X. Xxxxxxx
Title: President
00000 Xxxx Xxxxx Xxxxx
Xxxxx 000
Xxx Xxxxx, Xxxxxxxxxx 00000
Attention: Chief Financial Officer
Facsimile No.: (000) 000-0000
120
ALPINE SECURITIZATION CORP.
By: CREDIT SUISSE FIRST BOSTON,
New York Branch, as
Attorney-in-Fact
By: /s/ XXXXX XXXXXXXX
--------------------------
Name: Xxxxx Xxxxxxxx
Title: Vice President
By: /s/ XXXX X. XXXX
---------------------------
Name: Xxxx X. Xxxx
Title: Associate
Eleven Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Asset Finance
Department
Facsimile No.: (000) 000-0000
CREDIT SUISSE FIRST BOSTON, NEW
YORK BRANCH, as Agent
By: /s/ XXXXX XXXXXXXX
--------------------------
Name: Xxxxx Xxxxxxxx
Title: Vice President
By: /s/ XXXX X. XXXX
---------------------------
Name: Xxxx X. Xxxx
Title: Associate
Eleven Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Asset Finance Department
Facsimile No.: (000) 000-0000
121
CREDIT SUISSE FIRST BOSTON, NEW
YORK BRANCH, as a Lender
By: /s/ XXXXX XXXXXXXX
--------------------------
Name: Xxxxx Xxxxxxxx
Title: Vice President
By: /s/ XXXX X. XXXX
---------------------------
Name: Xxxx X. Xxxx
Title: Associate
Eleven Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Asset Finance Department
Facsimile No.: (000) 000-0000
NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION, as Backup
Servicer and Custodian
By: /s/ XXXXX XXX XXXXX
-------------------------------
Name: Xxxxx Xxx Xxxxx
Title: Corporate Trust Officer
Xxxxx Xxxxxx xxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000-0000
Attention: Corporate Trust Service -
Asset Backed
Administration
Facsimile No.: (000) 000-0000
122
EXHIBIT A
ADVANCE REQUEST
Credit Suisse First Boston, New York Branch, as agent
Eleven Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention:
[_________________]
Gentlemen and Ladies:
This Advance Request is delivered to you pursuant to Section 2.2 of the
Receivables Financing Agreement, dated as of _________ __, 1997 (together with
all amendments, if any, from time to time made thereto, the "Receivables
Financing Agreement"), among [ ], ACC Consumer Finance Corporation,
Norwest Bank Minnesota, National Association, Alpine Securitization Corp. and
Credit Suisse First Boston, New York Branch (the "Agent"). Unless otherwise
defined herein or the context otherwise requires, capitalized terms used herein
have the meanings provided in the Receivables Financing Agreement.
[ ] hereby requests that an Advance be made in the aggregate
principal amount of $______ on_________ , 19__ [having a Fixed Period
of___________days].
[ ] hereby acknowledges that, pursuant to Section 2.4 of the
Receivables Financing Agreement, each of the delivery of this Advance Request
and the acceptance by [ ] of the proceeds of the Advances requested hereby
constitutes a representation and warranty by [ ] that, on the date of such
Advances, and before and after giving effect thereto and to the application of
the proceeds therefrom in accordance with the Transaction Documents, all
applicable statements set forth in Section 2.4 are true and correct in all
material respects.
[ ] agrees that if prior to the time of the Advance requested
hereby any matter certified to herein by it will not be true and correct at such
time as if then made, it will immediately so notify the Agent. Except to the
extent, if any, that prior to the time of the Advance requested hereby the Agent
shall receive written notice to the contrary from
123
[ ], each matter certified to herein shall be deemed once again
to be certified as true and correct at the date of such Advance as if then made.
[ ] has caused this Advance Request to be executed and delivered,
and the certification and warranties contained herein to be made, by its duly
authorized officer this _________ day of ____________, 19__.
[ ]
By:________________________
Title:
2
124
EXHIBIT B
NOTE
THIS NOTE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "ACT"), OR ANY STATE SECURITIES LAW, AND MAY NOT BE
DIRECTLY OR INDIRECTLY OFFERED OR SOLD OR OTHERWISE DISPOSED OF BY THE OWNER
HEREOF UNLESS SUCH TRANSACTION IS EXEMPT FROM REGISTRATION UNDER THE ACT AND
SUCH STATE LAWS, AND WILL NOT BE A "PROHIBITED TRANSACTION" UNDER THE EMPLOYEE
RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"). BY ACCEPTANCE OF
THIS NOTE, THE HOLDER AGREES TO BE BOUND BY ALL THE TERMS OF THE RECEIVABLES
FINANCING AGREEMENT.
$______________ _________ __, 1997
FOR VALUE RECEIVED, the undersigned, [ ], a Delaware corporation (the
"Borrower"), promises to pay to the order of Credit Suisse First Boston, New
York Branch, as Agent for the Investors, on the Stated Maturity Date the
principal sum of _________________________ _______ ($___________) or, if less,
the aggregate unpaid principal amount of all Advances shown on the schedule
attached hereto (and any continuation thereof) and/or in the records of Agent
made by the Investors pursuant to that certain Receivables Financing Agreement,
dated as of _________ __, 1997 (together with all amendments and other
modifications, if any, from time to time thereafter made thereto, the
"Receivables Financing Agreement"), among the Borrower, ACC Consumer Finance
Corporation, Norwest Bank Minnesota, National Association, Alpine and Credit
Suisse First Boston, New York Branch, as Agent. Unless otherwise defined,
capitalized terms used herein have the meanings provided in the Receivables
Financing Agreement.
The Borrower also promises to pay Yield on the unpaid principal amount
hereof from time to time outstanding from the date hereof until maturity
(whether by acceleration or otherwise) and, after maturity, until paid, at the
rates per annum and on the dates specified in the Receivables Financing
Agreement.
125
Payments of both principal and Yield are to be made in lawful money of the
United States of America in same day or immediately available funds to the
account designated by the Agent pursuant to the Receivables Financing Agreement.
This Note is the Note referred to in, and evidences indebtedness
incurred under, the Receivables Financing Agreement, and the holder hereof is
entitled to the benefits of the Receivables Financing Agreement, to which
reference is made for a description of the security for this Note and for a
statement of the terms and conditions on which the Borrower is permitted and
required to make prepayments and repayments of principal of the indebtedness
evidenced by this Note and on which such indebtedness may be declared to be
immediately due and payable.
All parties hereto, whether as makers, endorsers, or otherwise,
severally waive presentment for payment, demand, protest and notice of dishonor.
As provided in the Receivables Financing Agreement and subject to
certain limitations therein set forth, the transfer of this Note is registrable
in the Note Register, upon surrender of this Note for registration of transfer
at the office or agency of the Custodian in The City of New York, and at any
other office or agency maintained by the Borrower for that purpose, duly
endorsed by, or accompanied by a written instrument of transfer in the form
satisfactory to the Note Registrar duly executed by, the holder hereof or his
attorney duly authorized in writing, and thereupon one or more new Notes, of
authorized denominations and for the same aggregate principal amount, will be
issued to the designated transferee or transferees.
The Notes are issuable only in registered form without coupons in
minimum denominations of $100,000. As provided in the Agreement and subject to
certain limitations therein set forth, Notes are exchangeable for a like
aggregate principal amount of Notes of a different authorized denomination, as
requested by the holder surrendering the same.
No service charge shall be made for any such registration of transfer or
exchange, but the Borrower may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
The Borrower, the Custodian and any agent of the Borrower or the
Custodian may treat the Person in whose name this Note is registered as the
owner hereof for all purposes, whether or not this Note may be overdue, and
neither the Borrower, the Custodian nor any such agent shall be affected by
notice to the contrary.
2
126
The holder hereof hereby agrees, and any assignee of such holder, by
accepting such assignment, shall be deemed to have agreed, that it will not
institute against Alpine or the Borrower, or join any other Person in
instituting against Alpine or the Borrower, any insolvency proceeding (namely,
any proceeding of the type referred to in the definition of Event of Bankruptcy)
so long as, in the case of Alpine, any commercial paper or other senior
indebtedness issued by Alpine shall be outstanding or there shall not have
elapsed one year plus one day since the last day on which any such commercial
paper or other senior indebtedness shall be outstanding and, in the case of the
Borrower, any Advances or other amounts due from the Borrower hereunder shall be
outstanding or there shall not have elapsed one year plus one day since the last
day on which any such Advances or other amounts shall be outstanding. The
foregoing shall not limit such Person's right to file any claim in or otherwise
take any action with respect to any insolvency proceeding that was instituted by
any Person other than such Person.
THIS NOTE SHALL BE DEEMED TO BE A CONTRACT MADE UNDER AND GOVERNED BY THE
INTERNAL LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO ANY OTHERWISE
APPLICABLE PRINCIPLES OF CONFLICTS OF LAWS.
[ ]
By:___________________________
Name:
Title:
Personally appeared before me ________________________ [name of notary],
in _____________________[county], ____________________ [state], the above-named
3
127
_______________________ [name of person executing], known or proved to me to be
the same person who executed the foregoing instrument and to be the
_______________________ [title] of [ ] and acknowledged to me that he
executed the same as his free act and deed and the free act and deed of [ ].
Subscribed and sworn before me this ____ day of _________, 1997.
_____________________________
NOTARY PUBLIC
COUNTY OF __________________
STATE OF ___________________
My commission expires the ____
day of ____________, 199_.
4
128
Form of Assignment Form
ASSIGNMENT FORM
If you the holder want to assign this Note, fill in the form below and
have your signature guaranteed:
I or we assign and transfer this Note to:
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Print or type name, address and zip code and
social security or tax ID number of assignee)
and irrevocably appoint__________________________ , agent to transfer this Note
on the books of the Borrower. The agent may substitute another to act for him.
Dated:__________________________ Signed:______________________________
______________________________
(sign exactly as the name appears
on the other side of this Note)
Signature Guarantee____________________________________________________________
Important Notice: When you sign your name to this Assignment Form without
filling in the name of your "Assignee" or "Attorney", this Note becomes fully
negotiable, similar to a check endorsed in blank. Therefore, to safeguard a
signed Note, it is recommended that you fill in the name of the new owner in the
"Assignee" blank. Alternatively, instead of using this Assignment Form, you may
sign a separate "power of attorney" form and then mail the unsigned Note and the
signed "power of attorney" in separate envelopes. For added protection, use
certified or registered mail for a Note.
129
===============================================================================
Schedule attached to Note Dated _________ __, 1997 of [ ] payable to the order
of Credit Suisse First Boston, New York Branch, as Agent
-------------------------------------------------------------------------------
Date of Amount of Amount of
Advance Advance Repayment
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
===============================================================================
130
EXHIBIT D
FORM OF BORROWING BASE CERTIFICATE
131
[FINANCIAL SECURITY ASSURANCE INC. LETTERHEAD]
PREMIUM LETTER
March 27, 1997
ACC Consumer Finance Corporation
Plaza del Mar
00000 Xxxx Xxxxx Xxxxx
Xxxxx 000
Xxx Xxxxx, Xxxxxxxxxx 00000
ACC Liquidity LLC
Plaza del Mar
00000 Xxxx Xxxxx Xxxxx
Xxxxx 000
Xxx Xxxxx, Xxxxxxxxxx 00000
Re: Repayment Obligations of ACC Liquidity LLC
to Alpine Securitization Corp. and the Lenders with
respect to Advances
---------------------------------------------------
Ladies and Gentlemen:
This letter will confirm the agreement of ACC Consumer Finance
Corporation ("ACC"), ACC Liquidity LLC ("ACCL") and Financial Security Assurance
Inc. ("Financial Security") that the following nonrefundable payments are to be
made at, in connection with, and subject to, the closing of the above-described
transaction and in consideration of the issuance by Financial Security of its
Financial Guaranty Insurance Policy No. 50580-N (the "Policy") in respect
thereof. The amounts payable hereunder shall be nonrefundable for any reason
whatsoever, including the lack of any payment under the Policies or any other
circumstances relating to the repayment obligations of ACCL to the Lenders with
respect to Advances (the "Obligation") or provision being made for payment of
the Obligations or the Notes prior to maturity. Capitalized terms used herein
but not defined herein or by specific reference shall have the meanings
specified in the Insurance Agreement (as defined below).
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132
The payments payable pursuant to the terms hereof (except as otherwise
noted) shall constitute the "Premium" referred to in that certain Insurance and
Indemnity Agreement dated as of March 27, 1997 (the "Insurance Agreement" among
Financial Security, ACC and ACCL. This Letter is the Premium Letter referred to
in the Insurance Agreement. The obligations of ACC and ACCL hereunder constitute
obligations of ACC and ACCL under the Insurance Agreement.
EXPECTED CLOSING DATE: March 27, 1997
Type of Payment Amount Payee Re:
--------------- ------ ----- ---
Federal Funds Wire $65,000 Xxxxx, Xxxxx & Xxxxx Legal Fees and
Disbursements
The Premium shall be payable each month in arrears on the first
Distribution Date (as defined in the Receivables Financing Agreement) and shall
be equal to the sum of (a) the product of (i) 45 basis points per annum, (ii)
the average outstanding principal amount of Advances during the related
Collection period and (iii) 1/12 (or, in the case of the Collection period in
which the Date of Issuance occurs, a fraction the numerator of which is equal to
the actual number of days from the Date of Issuance to and including the last
day of such Collection Period and the denominator of which is 360) and (b) the
product of (i) 5 basis points per annum, (ii) the difference between (x) the
Facility Limit and (y) the amount calculated pursuant to clause (a)(ii) above
and (iii) 1/12 (or, in the case of the Collection Period in which the Date of
Issuance occurs, a fraction the numerator of which is equal to the actual number
of days from the Date of Issuance to and including the last day of such
Collection period and the denominator of which is 360) (the sum of (a) and (b),
the "Premium Rate"). The out-of-pocket expenses, legal fees and disbursements
(in the amounts specified above) shall be paid by ACC to Financial Security or
Xxxxx, Xxxxx & Xxxxx, as applicable, on the Date of Issuance.
If an Event of Default occurs and is continuing under the Insurance
Agreement, Financial Security will be entitled on each Distribution Date
thereafter to a Premium Supplement equal to the product of (i) 0.50%, (ii) the
outstanding principal amount of Advances at the beginning of the Collection
period during which such Event of Default occurs and (iii) 1/12.
If ACC breaches the covenant set forth in Section 2.02(n) of the
Insurance Agreement, Financial Security will be entitled on each Distribution
Date following the date that is 135 days from the Date of Issuance to an
Additional premium Supplement equal to the product of (i) 0.30%, (ii) the
average outstanding principal amount of Advances during the related Collection
period and (iii) 1/12. Such Additional Premium Supplement shall not be payable
on any Distribution Date following the Facility Termination Date.
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133
Unless another account is designated to you in writing by the President
or a Managing Director of Financial Security, Federal funds wire transfers to
Financial Security shall be made with the following details specifically stated
on the wire instructions:
BANK: THE BANK OF NEW YORK
ABA #000000000
For the Account of: Financial Security Assurance Inc.
Account Number: 8900297263
Policy Number: 50580-N
Sincerely,
FINANCIAL SECURITY ASSURANCE INC.
By: /s/
--------------------------------
Authorized Officer
-3-
134
Agreed and accepted as
of the date first above written:
ACC CONSUMER FINANCE CORPORATION
/s/
----------------------------------
Name:
Title:
ACC LIQUIDITY LLC
By: ACC FUNDING CORP.,
its managing member
By: /s/
--------------------------------
Name:
Title:
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