SECURITY AGREEMENT
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THIS AGREEMENT is made as of the 23rd day of August, 2001,
BETWEEN:
AMERICREDIT FINANCIAL SERVICES OF CANADA LTD., a
corporation incorporated under the laws of the Province of
Ontario (hereinafter referred to as the "Debtor")
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XXXXXXX XXXXX CAPITAL CANADA INC., a corporation
incorporated under the laws of the Province of Ontario
(hereinafter referred to as the "Secured Party")
WHEREAS the Debtor has agreed to grant a security interest and
assignment in the Collateral to the Secured Party in order to secure the payment
and performance of its Obligations to the Secured Party;
AND WHEREAS this is the Security Agreement contemplated pursuant to
Section 4.1.1(a) of the Credit Agreement;
NOW THEREFORE THIS AGREEMENT WITNESSES that in consideration of the
premises and the covenants and agreements herein contained, and for other good
and valuable consideration (the receipt and sufficiency of which are hereby
acknowledged), the parties hereto hereby agree as follows:
ARTICLE 1 - INTERPRETATION
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1.01 Interpretation
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In this Agreement, unless something in the subject matter or context
is inconsistent therewith,
"Agreement" means this agreement and all amendments made hereto by written
agreement between the Secured Party and the Debtor.
"Collateral" has the meaning set out in Section 2.01.
"Credit Agreement" means the Credit Agreement made as of August 23, 2001 between
the Debtor, AmeriCredit Financial Services, Inc. and the Secured Party, as the
same may be amended, supplemented or restated from time to time.
"Event of Default" has the meaning attributed to such term in the Credit
Agreement.
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"Obligations" means all obligations of the Debtor to the Secured Party under, in
connection with or relating to the Credit Agreement and any other Credit
Documents to which the Borrower is a party, including, without limiting the
generality of the foregoing, all debts and liabilities, present or future,
direct or indirect, absolute or contingent, matured or not, whenever and
howsoever incurred, in any currency at any time owing by the Debtor to the
Secured Party or remaining unpaid by the Debtor to the Secured Party under, in
connection with or relating to the Credit Agreement and any other Credit
Documents to which the Borrower is a party and whether the same is from time to
time reduced and thereafter increased or entirely extinguished and thereafter
incurred again and whether arising from dealings between the Secured Party and
the Debtor or from other dealings or proceedings by which the Secured Party may
be or become in any manner whatsoever a creditor of the Debtor and wherever
incurred and whether incurred by the Debtor alone or with another or others and
whether as principal or surety, including all interest, commissions, legal and
other costs, charges and expenses.
The terms "accessions", "accounts" and "proceeds" whenever used
herein have the meanings given to those terms in the Personal Property Security
Act (Ontario), as now enacted or as the same may from time to time be amended,
re-enacted or replaced.
Unless the context otherwise requires, capitalized terms which are
used but not defined herein and which are defined in the Credit Agreement shall
have the respective meanings attributed to such terms in the Credit Agreement.
1.02 Sections and Headings
---------------------
The division of this Agreement into Articles and Sections and the
insertion of headings are for convenience of reference only and will not affect
the construction or interpretation of this Agreement. The terms "this
Agreement", "hereof", "hereunder" and similar expressions refer to this
Agreement and not to any particular Article, Section or other portion hereof and
include any agreement supplemental hereto. Unless something in the subject
matter or context is inconsistent therewith, reference herein to Articles and
Sections are to Articles and Sections of this Agreement.
1.03 Extended Meanings
-----------------
In this Agreement words importing the singular number only include
the plural and vice versa, words importing any gender include all genders and
words importing persons include individuals, partnerships, associations, trusts,
unincorporated organizations and corporations.
ARTICLE 2 - GRANT OF SECURITY INTEREST
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2.01 Security Interest
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As general and continuing security for the payment and performance of
all Obligations of the Debtor to the Secured Party, the Debtor hereby grants to
the Secured Party a security interest in, and assigns to the Secured Party, all
right, title and interest which the Debtor
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now has or may hereafter have, be possessed of, be entitled to, or acquire in
and to the following property (collectively, the "Collateral"):
(a) the Collection Account, all accounts relating thereto, and all
amounts deposited therein from time to time pursuant to the Credit
Agreement;
(b) all Contracts and the related Receivables identified in any Schedule
of Contracts delivered from time to time to the Lender pursuant to
the Credit Agreement, together with all Collections, Contract Files,
Related Security and Servicing Records relating thereto;
(c) all Contracts and the related Receivables identified in any Schedule
of Additional Contracts delivered from time to time to the Lender
pursuant to the Credit Agreement, together with all Collections,
Contract Files, Related Security and Servicing Records relating
thereto;
(d) all replacements of, substitutions for and increases, additions and
accessions to any of the property described in this Section 2.01; and
(e) all proceeds of any of the foregoing property in any form derived
directly or indirectly from any dealing with such property or that
indemnifies or compensates for the loss of or damage to such
property;
provided that the said security interest and assignment will not (i) extend or
apply to any Contract or the related Receivable (or any Collections, Contract
Files, Related Security and Servicing Records relating thereto) identified in
any Schedule of Ineligible Contracts or Schedule of Removed Contracts executed
from time to time by the Secured Party pursuant to the Credit Agreement, or (ii)
render the Secured Party liable to observe or perform any term, covenant or
condition of any agreement, document or instrument to which the Debtor is a
party or by which it is bound and which forms part of the Collateral.
2.02 Attachment of Security Interest
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The Debtor acknowledges that value has been given and agrees that the
security interest granted hereby will attach when the Debtor signs this
Agreement and the Debtor has any rights in the Collateral.
ARTICLE 3 - REMEDIES
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3.01 Remedies
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(1) On or after the occurrence of any Event of Default, (i) any or all of
the Obligations will at the option of the Secured Party become immediately due
and payable or be subject to immediate performance, as the case may be, without
presentment, protest or notice of dishonour, all of which are expressly waived;
(ii) the obligation, if any, of the Secured Party to extend further credit to
the Debtor will cease; (iii) any or all security granted hereby will, at the
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option of the Secured Party, become immediately enforceable; and (iv) in
addition to any right or remedy provided by law, the Secured Party will have the
rights and remedies set out below, all of which rights and remedies will be
enforceable successively, concurrently or both:
(a) the Secured Party may by appointment in writing appoint a receiver or
receiver and manager (each herein referred to as the "Receiver") of
the Collateral (which term when used in this Section 6.01 will
include the whole or any part of the Collateral) and may remove or
replace such Receiver from time to time or may institute proceedings
in any court of competent jurisdiction for the appointment of a
Receiver of the Collateral; and the term "Secured Party" when used in
this Section 6.01 will include any Receiver so appointed and the
agents, officers and employees of such Receiver; and the Secured
Party will not be in any way responsible for any misconduct or
negligence of any such Receiver;
(b) the Secured Party may take possession of the Collateral and require
the Debtor to assemble the Collateral and deliver or make the
Collateral available to the Secured Party at such place or places as
may be specified by the Secured Party;
(c) the Secured Party may take such steps as it considers desirable to
maintain, preserve or protect the Collateral;
(d) the Secured Party may enforce any rights of the Debtor in respect of
the Collateral by any manner permitted by law;
(e) the Secured Party may sell, lease or otherwise dispose of the
Collateral at public auction, by private tender, by private sale or
otherwise either for cash or upon credit upon such terms and
conditions as the Secured Party may determine and without notice to
the Debtor unless required by law;
(f) the Secured Party may accept the Collateral in satisfaction of the
Obligations upon notice to the Debtor of its intention to do so in
the manner required by law;
(g) the Secured Party may enter upon all or any of the premises occupied
by the Debtor in order to seize and remove any Collateral located in
or on such premises;
(h) the Secured Party may charge on its own behalf and pay to others all
reasonable amounts for expenses incurred and for services rendered in
connection with the exercise of the rights and remedies of the
Secured Party hereunder, including, without limiting the generality
of the foregoing, reasonable legal, Receiver and accounting fees and
expenses, and in every such case the amounts so paid together with
all costs, charges and expenses incurred in connection therewith,
including interest thereon at such rate as the Secured Party deems
reasonable, will be added to and form part of the Obligations hereby
secured; and
(i) the Secured Party may discharge any claim, lien, mortgage, charge,
security interest, encumbrance or any rights of others that may exist
or be threatened against the Collateral, and in every such case the
amounts so paid together with
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costs, charges and expenses incurred in connection therewith will be
added to the Obligations hereby secured.
(2) The Secured Party may (i) grant extensions of time, (ii) take and
perfect or abstain from taking and perfecting security, (iii) give up
securities, (iv) accept compositions or compromises, (v) grant releases and
discharges, and (vi) release any part of the Collateral or otherwise deal with
the Debtor, debtors of the Debtor, sureties and others and with the Collateral
and other security as the Secured Party sees fit without prejudice to the
liability of the Debtor to the Secured Party or the Secured Party's rights
hereunder.
(3) The Secured Party will not be liable or responsible for any failure
to seize, collect, realize, or obtain payment with respect to the Collateral and
is not bound to institute proceedings or to take other steps for the purpose of
seizing, collecting, realizing or obtaining possession or payment with respect
to the Collateral or for the purpose of preserving any rights of the Secured
Party, the Debtor or any other person, in respect of the Collateral.
(4) The Secured Party may apply any proceeds of realization of the
Collateral to payment of expenses in connection with the preservation and
realization of the Collateral as above described and the Secured Party may apply
any balance of such proceeds to payment of the Obligations in such order as the
Secured Party sees fit. If there is any surplus remaining, the Secured Party may
pay it to any person having a claim thereto in priority to the Debtor of whom
the Secured Party has knowledge and any balance remaining must be paid to the
Debtor. If the disposition of the Collateral fails to satisfy the Obligations
secured by this Agreement and the aforesaid expenses, the Debtor will be liable
to pay any deficiency to the Secured Party forthwith on demand.
ARTICLE 4 - GENERAL
4.01 Benefit of the Agreement
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This Agreement will enure to the benefit of and be binding upon the
successors and permitted assigns of the parties hereto.
4.02 Notification of Account Debtors
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After the occurrence of an Event of Default, the Secured Party may
give notice to any applicable Obligor to make all further payments relating to
the Collateral to the Secured Party, and any payment or other proceeds of
Collateral received by the Debtor from any such Obligor after any such notice is
given by the Secured Party must be held by the Debtor in trust for the Secured
Party and forthwith paid over to the Secured Party.
4.03 Entire Agreement
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This Agreement has been entered into pursuant to the provisions of
the Credit Agreement and is subject to all the terms and conditions thereof and,
if there is any conflict or inconsistency between the provisions of this
Agreement and the provisions of the Credit
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Agreement, the rights and obligations of the parties will be governed by the
provisions of the Credit Agreement. This Agreement cancels and supersedes any
prior understandings and agreements between the parties hereto with respect
thereto. There are no representations, warranties, terms, conditions,
undertakings or collateral agreements, express, implied or statutory, between
the Secured Party and the Debtor with respect to the subject matter hereof
except as expressly set forth herein or in the Credit Agreement.
4.04 Amendments and Waivers
----------------------
No amendment to this Agreement will be valid or binding unless set
forth in writing and duly executed by all of the parties hereto. No waiver of
any breach of any provision of this Agreement will be effective or binding
unless made in writing and signed by the party purporting to give the same and,
unless otherwise provided in the written waiver, will be limited to the specific
breach waived.
4.05 Assignment
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The rights of the Secured Party under this Agreement may be assigned
by the Secured Party without the prior consent of the Debtor. The Debtor may not
assign its obligations under this Agreement.
4.06 Severability
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If any provision of this Agreement is determined to be invalid or
unenforceable in whole or in part, such invalidity or unenforceability will
attach only to such provision or part thereof and the remaining part of such
provision and all other provisions hereof will continue in full force and
effect.
4.07 Notices
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Any demand, notice or other communication to be given in connection
with this Agreement must be given in writing and may be given by personal
delivery, by registered mail or by facsimile, addressed to the recipient as
follows:
To the Debtor:
AmeriCredit Financial Services of Canada Ltd.
Xxx Xxxxxx Xxxxx Xxxxxxx, Xxxxx 0000
Xxxxxxxxxxx, Xxxxxxx
X0X 0X0
Attention: Xx. Xxxxxxx Xxxxxx
Facsimile No.: (000) 000-0000
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To the Secured Party:
Xxxxxxx Xxxxx Capital Canada Inc.
000 Xxx Xxxxxx, 0/xx/ Xxxxx
Xxxxxxx, Xxxxxxx
X0X 0X0
Attention: Xx. Xxxxxx Xxxxxx
Facsimile No.: (000) 000-0000
with a copy to:
Xxxxxxx Xxxxx
Global Asset Lending & Finance
4 World Financial Xxxxxx, 00/xx/ Xxxxx
Xxx Xxxx, Xxx Xxxx
00000
Attention: Xx. Xxxxxxx X. Xxxxx
Facsimile No.: (000) 000-0000
or such other address, individual or facsimile number as may be designated by
notice given by any party to the other. Any demand, notice or other
communication given by personal delivery will be conclusively deemed to have
been given on the day of actual delivery thereof and, if given by registered
mail, on the third business day following the deposit thereof in the mail and,
if given by facsimile, on the day of transmittal thereof if given during the
normal business hours of the recipient and on the next business day during which
such normal business hours next occur if not given during such hours on any day.
If the party giving any demand, notice or other communication knows or ought
reasonably to know of any difficulties with the postal system that might affect
the delivery of mail, any such demand, notice or other communication must not be
mailed but must be given by personal delivery or by facsimile.
4.08 Additional Continuing Security
------------------------------
This Agreement and the security interest and assignment granted
hereby are in addition to and not in substitution for any other security now or
hereafter held by the Secured Party and this Agreement is a continuing agreement
and security that will remain in full force and effect until discharged by the
Secured Party.
4.09 Further Assurances
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The Debtor must at its expense from time to time do, execute and
deliver, or cause to be done, executed and delivered, all such financing
statements, further assignments, documents, acts, matters and things as may be
reasonably requested by the Secured Party for the purpose of giving effect to
this Agreement or for the purpose of establishing compliance with the
representations, warranties and covenants herein contained.
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4.10 Power of Attorney
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Upon the occurrence of an Event of Default that is continuing, the
Debtor hereby irrevocably constitutes and appoints any officer for the time
being of the Secured Party the true and lawful attorney of the Debtor, with full
power of substitution, to do, make and execute all such statements, assignments,
documents, acts, matters or things with the right to use the name of the Debtor
whenever and wherever the officer may deem necessary or expedient and from time
to time to exercise all rights and powers and to perform all acts of ownership
in respect to the Collateral in accordance with this Agreement.
4.11 Discharge
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The Debtor will not be discharged from any of the Obligations or from
this Agreement except by a release or discharge signed in writing by the Secured
Party.
4.12 Governing Law
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This Agreement will be governed by and construed in accordance with
the laws of the Province of Ontario and the federal laws of Canada applicable
therein.
4.13 Executed Copy
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The Debtor acknowledges receipt of a fully executed copy of this
Agreement.
IN WITNESS WHEREOF the parties have duly executed this Agreement as
of the date first written above.
AMERICREDIT FINANCIAL SERVICES
OF CANADA LTD.
By:
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Name: Xxxx Xxxxxxxx
Title: Senior Vice President,
Finance
By:
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Name:
Title:
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XXXXXXX XXXXX XXXXXXX XXXXXX INC.
By:
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Name:
Title:
By:
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Name:
Title:
