Exhibit 10.5
EXECUTION COPY
SPREAD ACCOUNT AGREEMENT,
dated as of July 12, 2006
among
AMERICREDIT AUTOMOBILE RECEIVABLES TRUST 2006-A-F
FINANCIAL SECURITY ASSURANCE INC.
and
XXXXX FARGO BANK, NATIONAL ASSOCIATION
TABLE OF CONTENTS
PAGE
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Article I DEFINITIONS............................................... 1
Section 1.01 Definitions............................................ 1
Section 1.02 Rules of Interpretation................................ 19
Article II SECURITY INTERESTS; THE COLLATERAL........................ 20
Section 2.01 Grant of Security Interest by the Trust................ 20
Section 2.02 Perfection and Profit.................................. 20
Section 2.03 Reserved............................................... 21
Section 2.04 The Trust Remains Liable............................... 21
Section 2.05 Maintenance of Collateral.............................. 21
Section 2.06 Termination and Release of Rights...................... 22
Section 2.07 Non-Recourse Obligations of Trust...................... 22
Section 2.08 Securities Intermediary................................ 22
Article III SPREAD ACCOUNT............................................ 24
Section 3.01 Establishment of Spread Account, Initial Deposits
into Spread Account.................................... 24
Section 3.02 Investments............................................ 24
Section 3.03 Distributions: Priority of Payments.................... 25
Section 3.04 General Provisions Regarding Spread Account............ 26
Section 3.05 Reports by the Collateral Agent........................ 27
Article IV THE COLLATERAL AGENT...................................... 27
Section 4.01 Appointment and Powers................................. 27
Section 4.02 Performance of Duties.................................. 28
Section 4.03 Limitation on Liability................................ 28
Section 4.04 Reliance upon Documents................................ 29
Section 4.05 Successor Collateral Agent............................. 29
Section 4.06 Indemnification........................................ 31
Section 4.07 Compensation and Reimbursement......................... 31
Section 4.08 Representations and Warranties of Xxxxx Fargo.......... 31
Section 4.09 Waiver of Setoffs...................................... 32
Section 4.10 Control by the Controlling Party....................... 32
Article V COVENANTS OF THE TRUST.................................... 32
Section 5.01 Preservation of Collateral............................. 32
TABLE OF CONTENTS
(CONTINUED)
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Section 5.02 Opinions as to Collateral.............................. 33
Section 5.03 Notices................................................ 33
Section 5.04 Waiver of Stay or Extension Laws; Marshaling of
Assets.............................................. 33
Section 5.05 Noninterference, etc................................... 34
Section 5.06 Trust Changes.......................................... 34
Article VI CONTROLLING PARTY; INTERCREDITOR PROVISIONS............... 34
Section 6.01 Appointment of Controlling Party....................... 34
Section 6.02 Controlling Party's Authority.......................... 35
Section 6.03 Rights of Secured Parties.............................. 35
Section 6.04 Degree of Care......................................... 36
Article VII REMEDIES UPON DEFAULT..................................... 36
Section 7.01 Remedies upon a Default................................ 36
Section 7.02 Waiver of Default...................................... 36
Section 7.03 Restoration of Rights and Remedies..................... 37
Section 7.04 No Remedy Exclusive.................................... 37
Article VIII MISCELLANEOUS............................................. 37
Section 8.01 Further Assurances..................................... 37
Section 8.02 Waiver................................................. 37
Section 8.03 Amendments; Waivers.................................... 37
Section 8.04 Severability........................................... 38
Section 8.05 Nonpetition Covenant................................... 38
Section 8.06 Notices................................................ 38
Section 8.07 Term of this Agreement................................. 40
Section 8.08 Assignments: Third-Party Rights; Reinsurance........... 40
Section 8.09 Consent of Controlling Party........................... 41
Section 8.10 Trial by Jury Waived................................... 41
Section 8.11 Governing Law.......................................... 41
Section 8.12 Consents to Jurisdiction............................... 41
Section 8.13 Determination of Adverse Effect........................ 42
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TABLE OF CONTENTS
(CONTINUED)
PAGE
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Section 8.14 Counterparts........................................... 42
Section 8.15 Headings............................................... 42
Section 8.16 No Recourse............................................ 42
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SPREAD ACCOUNT AGREEMENT, dated as of July 12, 2006 (the "Agreement"), by
and among FINANCIAL SECURITY ASSURANCE INC., a New York stock insurance company
("Financial Security"), AMERICREDIT AUTOMOBILE RECEIVABLES TRUST 2006-A-F (the
"Trust") and XXXXX FARGO BANK, NATIONAL ASSOCIATION ("Xxxxx Fargo"), in its
capacity as Trustee with respect to the Notes (in such capacity, the "Trustee")
and as Collateral Agent (as defined below).
RECITALS
1. The Trust has requested that Financial Security issue the Policy (as
defined herein) with respect to the Notes (as defined herein) to the Trustee to
guarantee payment of the Scheduled Payments (as defined in the Policy) with
respect to the Notes.
2. In order to secure the performance of the Secured Obligations (as
defined herein), the Trust has agreed to pledge the Collateral to Xxxxx Fargo,
acting as the Collateral Agent for the benefit of Financial Security and for the
benefit of the Trustee with respect to the Notes.
AGREEMENTS
In consideration of the premises, and for other good and valuable
consideration, the adequacy, receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01 Definitions. All terms defined in the Sale and Servicing
Agreement or the Indenture shall have the same meanings provided in the Sale and
Servicing Agreement or the Indenture, respectively, unless otherwise specified.
The following terms shall have the following respective meanings:
"Accelerated Payment Termination Date" means the earlier of the
Distribution Date on which (A) the principal balance of the Class A-1 Notes is
reduced to zero or (B) the Accelerated Payment Amount Shortfall equals zero.
"Agreement" means this Spread Account Agreement, as the same may be
amended, supplemented or otherwise modified from time to time in accordance with
the terms hereof.
"Authorized Officer" means, (i) with respect to Financial Security, the
Chairman of the Board, the President, the Executive Vice President, the Chief
Operating Officer, the Chief Executive Officer or any Managing Director of
Financial Security, (ii) with
respect to each Trustee or each Collateral Agent, any Vice President, Authorized
Signer or Trust Officer thereof, and (iii) with respect to the Trust, any
Responsible Officer of the Owner Trustee.
"Collateral" means collectively all collateral pledged hereunder.
"Collateral Agent" means Xxxxx Fargo, in its capacity as collateral agent
on behalf of the Secured Parties, including its successors in interest, until a
successor Person shall have become a Collateral Agent pursuant to Section 4.05
hereof, and thereafter "Collateral Agent" shall also mean such successor Person.
"Controlling Party" means, at any time, the Person designated as the
Controlling Party at such time pursuant to Section 6.01 hereof.
"Cumulative Default Rate" shall mean, with respect to any Determination
Date, the fraction, expressed as a percentage, the numerator of which is equal
to the Principal Balance of all Receivables which became Defaulted Receivables
since the Initial Cutoff Date as of the related Accounting Date and the
denominator of which is equal to the Original Pool Balance.
"Cumulative Default Test Failure" shall mean, the Cumulative Default Rate
shall be equal to or greater than: (A) 3.31%, with respect to any Determination
Date occurring prior to or during the 3rd calendar month succeeding the Closing
Date, (B) 5.45%, with respect to any Determination Date occurring after the 3rd,
and prior to or during the 6th, calendar month succeeding the Closing Date, (C)
7.72%, with respect to any Determination Date occurring after the 6th, and prior
to or during the 9th, calendar month succeeding the Closing Date, (D) 9.37%,
with respect to any Determination Date occurring after the 9th, and prior to or
during the 12th, calendar month succeeding the Closing Date, (E) 11.24%, with
respect to any Determination Date occurring after the 12th, and prior to or
during the 15th, calendar month succeeding the Closing Date, (F) 13.59%, with
respect to any Determination Date occurring after the 15th, and prior to or
during the 18th, calendar month succeeding the Closing Date, (G) 15.93%, with
respect to any Determination Date occurring after the 18th, and prior to or
during the 21st, calendar month succeeding the Closing Date, (H) 17.33%, with
respect to any Determination Date occurring after the 21st, and prior to or
during the 24th, calendar month succeeding the Closing Date, (I) 19.21%, with
respect to any Determination Date occurring after the 24th, and prior to or
during the 27th, calendar month succeeding the Closing Date, (J) 20.61%, with
respect to any Determination Date occurring after the 27th, and prior to or
during the 30th, calendar month succeeding the Closing Date, (K) 22.25%, with
respect to any Determination Date occurring after the 30th, and prior to or
during the 33rd, calendar month succeeding the Closing Date, (L) 23.42%, with
respect to any Determination Date occurring after the 33rd, and prior to or
during the 36th, calendar month succeeding the Closing Date, (M) 24.59%, with
respect to any Determination Date occurring after the 36th, and prior to or
during the 39th, calendar month succeeding the Closing Date, (N) 25.30%, with
respect to any Determination Date occurring after the 39th, and prior to or
during the 42nd, calendar month succeeding the
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Closing Date and (O) 26.00%, with respect to any Determination Date occurring
after the 42nd calendar month succeeding the Closing Date.
"Cumulative Net Loss Rate" shall mean, with respect to any Determination
Date, the fraction, expressed as a percentage, the numerator of which is equal
to the sum of (a) Net Losses for such Determination Date plus (b) 50% of the
Principal Balance of all Receivables with respect to which 10% or more of a
Scheduled Payment has become 91 or more days delinquent (not including
Receivables included under the definition of Net Losses in clause (a) above) as
of the related Accounting Date and the denominator of which is equal to the
Original Pool Balance.
"Cumulative Net Loss Test Failure" shall mean, the Cumulative Net Loss Rate
shall be equal to or greater than: (A) 1.99%, with respect to any Determination
Date occurring prior to or during the 3rd calendar month succeeding the Closing
Date, (B) 3.22%, with respect to any Determination Date occurring after the 3rd,
and prior to or during the 6th, calendar month succeeding the Closing Date, (C)
4.50%, with respect to any Determination Date occurring after the 6th, and prior
to or during the 9th, calendar month succeeding the Closing Date, (D) 5.78%,
with respect to any Determination Date occurring after the 9th, and prior to or
during the 12th, calendar month succeeding the Closing Date, (E) 7.49%, with
respect to any Determination Date occurring after the 12th, and prior to or
during the 15th, calendar month succeeding the Closing Date, (F) 8.66%, with
respect to any Determination Date occurring after the 15th, and prior to or
during the 18th, calendar month succeeding the Closing Date, (G) 10.30%, with
respect to any Determination Date occurring after the 18th, and prior to or
during the 21st, calendar month succeeding the Closing Date, (H) 11.24%, with
respect to any Determination Date occurring after the 21st, and prior to or
during the 24th, calendar month succeeding the Closing Date, (I) 11.94%, with
respect to any Determination Date occurring after the 24th, and prior to or
during the 27th, calendar month succeeding the Closing Date, (J) 12.88%, with
respect to any Determination Date occurring after the 27th, and prior to or
during the 30th, calendar month succeeding the Closing Date, (K) 13.81%, with
respect to any Determination Date occurring after the 30th, and prior to or
during the 33rd, calendar month succeeding the Closing Date, (L) 14.28%, with
respect to any Determination Date occurring after the 33rd, and prior to or
during the 36th, calendar month succeeding the Closing Date and (M) 14.75%, with
respect to any Determination Date occurring after the 36th calendar month
succeeding the Closing Date.
"Deemed Cured" means, as of a Determination Date, (a) with respect to a
Trigger Event that has occurred pursuant to clause (ii) of the definition
thereof, that no such clause (ii) Trigger Event shall have occurred as of such
Determination Date or as of either of the two consecutively preceding
Determination Dates, and (b) with respect to a Trigger Event that has occurred
pursuant to clause (i) or clause (iii) of the definition thereof, as of a
Determination Date which occurs in a calendar month which is a multiple of three
months succeeding the Closing Date, that no such clause (i) or clause (iii)
Trigger Event shall have occurred as of such Determination Date, it being
understood that a Trigger Event that has occurred pursuant to clause (i) or
clause (iii) of the definition
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thereof, may not be cured on a Determination Date which occurs in a calendar
month which is not a multiple of three months succeeding the Closing Date.
"Default" means, at any time, (i) if Financial Security is then the
Controlling Party, any Insurance Agreement Event of Default or any default in
the satisfaction of Insurer Secured Obligations, and (ii) if the Trustee is then
the Controlling Party, any Event of Default under the Indenture.
"Defaulted Receivable" means any Receivable with respect to which (i) 10%
or more of a Scheduled Payment has become more than 90 days delinquent, (ii) the
Servicer has repossessed the Financed Vehicle (and any applicable redemption
period has expired), (iii) the Servicer has determined in good faith that
payments under the Receivable are not likely to be resumed, or (iv) without
duplication, such Receivable is a Sold Receivable.
"Deficiency Claim Date" means, with respect to any Distribution Date, the
fourth Business Day preceding such Distribution Date.
"Delinquency Ratio" means, with respect to any Determination Date, the
fraction, expressed as a percentage, the numerator of which is equal to the sum
of the Principal Balances (as of the related Accounting Date) of all Receivables
that were delinquent with respect to 10% or more of a Scheduled Payment more
than 60 days (excluding those Receivables for which the Financed Vehicle has
been repossessed and is in inventory) as of the related Accounting Date or that
became a Purchased Receivable as of the related Accounting Date and that were
delinquent with respect to 10% or more of a Scheduled Payment more than 60 days
(excluding those Receivables for which the Financed Vehicle has been repossessed
and is in inventory) as of such Accounting Date and the denominator of which is
equal to the Aggregate Principal Balance as of the second preceding Accounting
Date.
"Delinquency Test Failure" shall mean, (A) with respect to any May-October
Determination Date, the arithmetic average of the Delinquency Ratio for such
Determination Date and the two immediately preceding Determination Dates is
equal to or greater than 4.0%; provided, however, in the event that the OC
Percentage is equal to or greater than the Target OC Percentage on any
Determination Date occurring subsequent to the twelfth Determination Date after
the Closing Date, the percentage referred to in the previous clause for such
May-October Determination Date and each Determination Date thereafter shall be
deemed to be 5.0%; provided, further, in the event that the OC Percentage is
equal to or greater than the Target OC Percentage on any Determination Date
occurring subsequent to the twenty-fourth Determination Date after the Closing
Date, the percentage referred to in the previous clause for such May-October
Determination Date and each Determination Date thereafter shall be deemed to be
5.50%; provided, further, in the event that the OC Percentage is equal to or
greater than the Target OC Percentage on any Determination Date occurring
subsequent to the thirtieth Determination Date after the Closing Date, the
percentage referred to in the previous clause for such May-October Determination
Date and each Determination Date thereafter
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shall be deemed to be 6.0%; and provided, further, in the event that the OC
Percentage is equal to or greater than the Target OC Percentage on any
Determination Date occurring subsequent to the thirty-sixth Determination Date
after the Closing Date, the percentage referred to in the previous clause for
such May-October Determination Date and each Determination Date thereafter shall
be deemed to be 6.75%; or (B) with respect to any November-April Determination
Date, the arithmetic average of the Delinquency Ratio for such Determination
Date and the two immediately preceding Determination Dates is equal to or
greater than 4.25%; provided, however, in the event that the OC Percentage is
equal to or greater than the Target OC Percentage on any Determination Date
occurring subsequent to the twelfth Determination Date after the Closing Date,
the percentage referred to in the previous clause for such November-April
Determination Date and each Determination Date thereafter shall be deemed to be
5.25%; provided, further, in the event that the OC Percentage is equal to or
greater than the Target OC Percentage on any Determination Date occurring
subsequent to the twenty-fourth Determination Date after the Closing Date, the
percentage referred to in the previous clause for such November-April
Determination Date and each Determination Date thereafter shall be deemed to be
5.75%; provided, further, in the event that the OC Percentage is equal to or
greater than the Target OC Percentage on any Determination Date occurring
subsequent to the thirtieth Determination Date after the Closing Date, the
percentage referred to in the previous clause for such November-April
Determination Date and each Determination Date thereafter shall be deemed to be
6.25%; and provided, further, in the event that the OC Percentage is equal to or
greater than the Target OC Percentage on any Determination Date occurring
subsequent to the thirty-sixth Determination Date after the Closing Date, the
percentage referred to in the previous clause for such November-April
Determination Date and each Determination Date thereafter shall be deemed to be
7.00%.
"Delivery": means with respect to the Collateral:
(1) the perfection and priority of a security interest in which is
governed by the law of a jurisdiction which has adopted the 1978
Revision to Article 8 of the UCC:
(a) with respect to bankers' acceptances, commercial paper, negotiable
certificates of deposit and other obligations that constitute "instruments"
within the meaning of Section 9-105(l)(i) of the UCC (other than
certificated securities) and are susceptible of physical delivery, transfer
thereof to the Collateral Agent by physical delivery to the Collateral
Agent, indorsed to, or registered in the name of, the Collateral Agent or
its nominee or indorsed in blank and such additional or alternative
procedures as may hereafter become appropriate to effect the complete
transfer of ownership of any such Collateral to the Collateral Agent free
and clear of any adverse claims, consistent with changes in applicable law
or regulations or the interpretation thereof;
(b) with respect to a "certificated security" (as defined in Section
8-102(1)(a) of the UCC), transfer thereof:
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(i) by physical delivery of such certificated security to the
Collateral Agent, provided that if the certificated security is in
registered form, it shall be indorsed to, or registered in the name
of, the Collateral Agent or indorsed in blank;
(ii) by physical delivery of such certificated security to a
"financial intermediary" (as defined in Section 8-313(4) of the UCC)
of the Collateral Agent specially indorsed to or issued in the name of
the Collateral Agent;
(iii) by the sending by a financial intermediary, not a "clearing
corporation" (as defined in Section 8-102(3) of the UCC), of a
confirmation of the purchase and the making by such financial
intermediary of entries on its books and records identifying as
belonging to the Collateral Agent of (A) a specific certificated
security in the financial intermediary's possession, (B) a quantity of
securities that constitute or are part of a fungible bulk of
certificated securities in the financial intermediary's possession, or
(C) a quantity of securities that constitute or are part of a fungible
bulk of securities shown on the account of the financial intermediary
on the books of another financial intermediary; or
(iv) by the making by a clearing corporation of appropriate
entries on its books reducing the appropriate securities account of
the transferor and increasing the appropriate securities account of
the Collateral Agent or a Person designated by the Collateral Agent by
the amount of such certificated security, provided that in each case:
(A) the clearing corporation identifies such certificated security for
the sole and exclusive account of the Collateral Agent or the Person
designated by the Collateral Agent, (B) such certificated security
shall be subject to the clearing corporation's exclusive control, (C)
such certificated security is in bearer form or indorsed in blank or
registered in the name of the clearing corporation or custodian bank
or a nominee or either of them, (D) custody of such certificated
security shall be maintained by such clearing corporation or a
"custodian bank" (as defined in Section 8-102(4) of the UCC) or the
nominee of either subject to the control of the clearing corporation
and (E) such certificated security is shown on the account of the
transferor thereof on the books of the clearing corporation prior to
the making of such entries; and such additional or alternative
procedures as may hereafter become appropriate to effect the complete
transfer of ownership of any such Collateral to the Collateral Agent
free and clear of any adverse claims, consistent with changes in
applicable law or regulations or the interpretation thereof;
(c) with respect to any security issued by the U.S. Treasury, the Federal Home
Loan Mortgage Corporation or by the Federal National Mortgage Association
that is a
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book-entry security held through the Federal Reserve System pursuant to
Federal book entry regulations, the following procedures, all in accordance
with applicable law, including applicable Federal regulations and Articles
8 and 9 of the UCC: book-entry registration of such property to an
appropriate book-entry account maintained with a Federal Reserve Bank by a
financial intermediary which is also a "depositary" pursuant to applicable
Federal regulations and issuance by such financial intermediary of a
deposit advice or other written confirmation of such book-entry
registration to the Collateral Agent of the purchase by the financial
intermediary on behalf of the Collateral Agent of such book-entry security;
the making by such financial intermediary of entries in its books and
records identifying such book-entry security held through the Federal
Reserve System pursuant to Federal book-entry regulations as belonging to
the Collateral Agent and indicating that such financial intermediary holds
such book-entry security solely as agent for the Collateral Agent; and such
additional or alternative procedures as may hereafter become appropriate to
effect complete transfer of ownership of any such Collateral to the
Collateral Agent free and clear of any adverse claims, consistent with
changes in applicable law or regulations or the interpretation thereof;
(d) with respect to any item of Collateral that is an "uncertificated security"
(as defined in Section 8-102(1)(b) of the UCC) and that is not governed by
clause (c) above, transfer thereof:
(i) by registration of the transfer thereof to the Collateral
Agent, on the books and records of the issuer thereof;
(ii) by the sending of a confirmation by a financial intermediary
of the purchase, and the making by such financial intermediary of
entries on its books and records identifying as belonging to the
Collateral Agent (A) a quantity of securities which constitute or are
part of a fungible bulk of uncertificated securities registered in the
name of the financial intermediary or (B) a quantity of securities
which constitute or are part of a fungible bulk of securities shown on
the account of the financial intermediary on the books of another
financial intermediary; or
(iii) by the making by a clearing corporation of appropriate
entries on its books reducing the appropriate account of the
transferor and increasing the account of the Collateral Agent or a
Person designated by the Collateral Agent by the amount of such
uncertificated security, provided that in each case: (A) the clearing
corporation identifies such uncertificated security for the sole and
exclusive use of the Collateral Agent or the Person designated by the
Collateral Agent, (B) such uncertificated security is registered in
the name of the clearing corporation or a custodian bank or a nominee
of either, and (C) such uncertificated security is shown on the
account of the transferor on the books of the clearing corporation
prior to the making of such entries; and
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(iv) in each case of delivery contemplated herein, the Collateral
Agent shall make appropriate notations on its records, and shall cause
same to be made on the records of its nominees, indicating that such
securities are held in trust pursuant to and as provided in this
Agreement.
(2) the perfection and priority of a security interest in which is
governed by the law of a jurisdiction which has adopted the 1994 Revision to
Article 8 of the UCC:
(i) with respect to bankers' acceptances, commercial paper,
negotiable certificates of deposit and other obligations that
constitute "instruments" within the meaning of Section 9-105(1)(i) of
the UCC (other than certificated securities) and are susceptible of
physical delivery, transfer thereof to the Collateral Agent by
physical delivery to the Collateral Agent, indorsed to, or registered
in the name of, the Collateral Agent or its nominee or indorsed in
blank and such additional or alternative procedures as may hereafter
become appropriate to effect the complete transfer of ownership of any
such Collateral to the Collateral Agent free and clear of any adverse
claims, consistent with changes in applicable law or regulations or
the interpretation thereof;
(e) with respect to a "certificated security" (as defined in Section
8-102(a)(4) of the UCC), transfer thereof:
(i) by physical delivery of such certificated security to the
Collateral Agent, provided that if the certificated security is in
registered form, it shall be indorsed to, or registered in the name
of, the Collateral Agent or indorsed in blank;
(ii) by physical delivery of such certificated security in
registered form to a "securities intermediary" (as defined in Section
8-102(a)(14) of the UCC) acting on behalf of the Collateral Agent if
the certificated security has been specially endorsed to the
Collateral Agent by an effective endorsement.
(f) with respect to any security issued by the U.S. Treasury, the Federal Home
Loan Mortgage Corporation or by the Federal National Mortgage Association
that is a book-entry security held through the Federal Reserve System
pursuant to Federal book entry regulations, the following procedures, all
in accordance with applicable law, including applicable federal regulations
and Articles 8 and 9 of the UCC: book-entry registration of such property
to an appropriate book-entry account maintained with a Federal Reserve Bank
by a securities intermediary which is also a "depositary" pursuant to
applicable federal regulations and issuance by such securities intermediary
of a deposit advice or other written confirmation of such book-entry
registration to the Collateral Agent of the purchase by the securities
intermediary on behalf of the Collateral Agent of such
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book-entry security; the making by such securities intermediary of entries
in its books and records identifying such book-entry security held through
the Federal Reserve System pursuant to Federal book-entry regulations as
belonging to the Collateral Agent and indicating that such securities
intermediary holds such book-entry security solely as agent for the
Collateral Agent; and such additional or alternative procedures as may
hereafter become appropriate to effect complete transfer of ownership of
any such Collateral to the Collateral Agent free of any adverse claims,
consistent with changes in applicable law or regulations or the
interpretation thereof;
(g) with respect to any item of Collateral that is an "uncertificated security"
(as defined in Section 8-102(a)(18) of the UCC) and that is not governed by
clause (c) above, transfer thereof:
(i) (A) by registration to the Collateral Agent as the registered
owner thereof, on the books and records of the issuer thereof.
(B) by another Person (not a securities intermediary) who
either becomes the registered owner of the uncertificated security on
behalf of the Collateral Agent, or having become the registered owner
acknowledges that it holds for the Collateral Agent.
(ii) the issuer thereof has agreed that it will comply with
instructions originated by the Collateral Agent without further
consent of the registered owner thereof.
(h) in each case of delivery contemplated herein, the Collateral Agent shall
make appropriate notations on its records, and shall cause same to be made
of the records of its nominees, indicating that securities are held in
trust pursuant to and as provided in this Agreement.
(i) with respect to a "security entitlement" (as defined in Section
8-102(a)(17) of the UCC)
(i) if a securities intermediary (A) indicates by book entry that
a "financial asset" (as defined in Section 8-102(a)(9) of the UCC) has
been credited to be the Collateral Agent's "securities account" (as
defined in Section 8-501(a) of the UCC), (B) receives a financial
asset (as so defined) from the Collateral Agent or acquires a
financial asset for the Collateral Agent, and in either case, accepts
it for credit to the Collateral Agent's securities account (as so
defined), (C) becomes obligated under other law, regulation or rule to
credit a financial asset to the Collateral Agent's securities account,
or (D) has agreed that it will comply with "entitlement orders" (as
defined in Section 8-102(a)(8) of the UCC) originated by the
Collateral Agent without further consent by the "entitlement holder"
(as defined in Section 8-102(a)(7) of the UCC), of a
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confirmation of the purchase and the making by such securities
intermediary of entries on its books and records identifying as
belonging to the Collateral Agent of (I) a specific certificated
security in the securities intermediary's possession, (II) a quantity
of securities that constitute or are part of a fungible bulk of
certificated securities in the securities intermediary's possession,
or (III) a quantity of securities that constitute or are part of a
fungible bulk of securities shown on the account of the securities
intermediary on the books of another securities intermediary.
"Eligible Account" means a segregated trust account that (i) is either (x)
maintained with a depository institution or trust company the long-term
unsecured debt obligations of which are rated "AA" or higher by Standard &
Poor's and "Aa2" or higher by Moody's, or (y) maintained with a depository
institution or trust company the commercial paper or other short-term unsecured
debt obligations of which are rated "A-1+" by Standard & Poor's and "P-1" by
Moody's and (ii) in either case, such depository institution or trust company
shall have been specifically approved by the Controlling Party, acting in its
discretion, by written notice to the Collateral Agent.
"Final Termination Date" means the date that is the later of (i) the
Insurer Termination Date and (ii) the Trustee Termination Date.
"Financial Security Default" means any one of the following events shall
have occurred and be continuing:
(a) Financial Security shall have failed to make a payment required
under the Policy in accordance with its terms;
(b) Financial Security shall have (i) filed a petition or commenced
any case or proceeding under any provision or chapter of the United States
Bankruptcy Code, the New York State Insurance Law 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 United States Bankruptcy Code, the New York State Insurance
Law, or any other similar federal or state law relating to insolvency,
bankruptcy, rehabilitation, liquidation or reorganization which is final
and nonappealable; or
(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 Financial Security 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 Financial Security
(or the taking of possession of all or any material portion of the property
of Financial Security).
14
"Floor Amount" shall mean, with respect to any Determination Date, the
greater of (A) $100,000 and (B) the lesser of (i) the Note Balance and (ii) 2.0%
of the Original Pool Balance.
"Indenture" means the Indenture, dated as of July 12, 2006, between the
Trust and Xxxxx Fargo, as amended from time to time with the consent of the
Controlling Party.
"Insurance Agreement" means the Insurance and Indemnity Agreement, dated as
of July 12, 2006 among Financial Security, AmeriCredit Corp., AmeriCredit
Financial Services, Inc., AFS Funding Trust and the Trust, pursuant to which
Financial Security issued the Policy to the Trustee.
"Insurer Secured Obligations" means all amounts and obligations which may
at any time be owed to or on behalf of Financial Security (or any agents,
accountants or attorneys for Financial Security) under the Insurance Agreement
or under any Transaction Document, regardless of whether such amounts are owed
in the future, whether liquidated or unliquidated, contingent or non-contingent.
"Insurer Termination Date" means the date which is the latest of (i) the
date of the expiration of the Policy, as specified in a written notice delivered
by the Seller to the Collateral Agent and the Trustee, (ii) the date on which
Financial Security shall have received payment and performance in full of all
Insurer Secured Obligations and (iii) the latest date on which any payment
referred to above could be avoided as a preference or otherwise under the United
States Bankruptcy Code or any other similar federal or state law relating to
insolvency, bankruptcy, rehabilitation, liquidation or reorganization, as
specified in an Opinion of Counsel delivered to the Collateral Agent and the
Trustee.
"Lien" means, as applied to the property or assets (or the income,
proceeds, products, rents or profits therefrom) of any Person, in each case
whether the same is consensual or nonconsensual or arises by contract, operation
of law, legal process or otherwise: (a) any mortgage, lien, pledge, attachment,
charge, lease, conditional sale or other title retention agreement, or other
security interest or encumbrance of any kind; or (b) any arrangement, express or
implied, under which such property or assets (and/or such income, proceeds,
products, rents or profits) are transferred, sequestered or otherwise identified
for the purpose of subjecting or making available the same for payment of debt
or performance of any other obligation in priority to the payment of the
general, unsecured creditors of such Person.
"May-October Determination Date" shall mean a Determination Date occurring
during the months of May, June, July, August, September or October.
"Net Losses" means, with respect to any Determination Date, the positive
difference of (A) the sum of (i) the aggregate of the Principal Balances as of
the related Accounting Date of all Receivables that became Liquidated
Receivables since the Initial Cutoff Date, plus (ii) the Principal Balance of
all Receivables that became Purchased Receivables since the Initial Cutoff Date
as of the related Accounting Date and that were
15
delinquent with respect to 10% or more of a Scheduled Payment more than 30 days
as of such Accounting Date, plus (iii) the aggregate of all Cram Down Losses as
of the related Accounting Date that occurred since the Initial Cutoff Date, over
(B) the Liquidation Proceeds received by the Trust as of the related Accounting
Date since the Initial Cutoff Date
"Non-Controlling Party" means, at any time, the Secured Party that is not
the Controlling Party at such time.
"Note Balance" shall mean, with respect to any Determination Date, the sum
of the aggregate principal balance of the Notes with respect to such
Determination Date after giving effect to all distributions on the Notes on the
related Distribution Date.
"November-April Determination Date" shall mean a Determination Date
occurring during the months of November, December, January, February, March or
April.
"Obligor" means, with respect to any Receivable, the purchaser or the
co-purchasers of the Financed Vehicle and any other Person or Persons who are
primarily or secondarily obligated to make payments under a Receivable.
"OC Level" shall mean 12.5%; provided, however, if each of the Step-Down
Conditions are satisfied on a Determination Date preceding the Distribution Date
set forth in the following table, the OC Level shall be reduced to the amount
set forth with respect to such Distribution Date in the following table;
provided, further, however, that if any of such Step Down Conditions are not
satisfied with respect to any Distribution Date in the following table, the OC
Level shall not be reduced on such Distribution Date and will not be subject to
reduction or further reduction, as applicable, until the next Distribution Date
set forth in the following table (if any):
Distribution Date occurring in: OC Level
------------------------------- --------
18th calendar month 12.0%
24th calendar month 11.0%
30th calendar month 10.0%
"OC Percentage" shall mean, with respect to any Determination Date, the sum
of (i) the percentage equivalent of a fraction the numerator of which is equal
to the excess, if any, of (A) the Aggregate Principal Balance as of such
Determination Date over (B) the Note Balance minus the Pre-Funded Amount as of
such Determination Date and the denominator of which is equal to the Aggregate
Principal Balance as of such Determination Date, and (ii) the percentage
equivalent of a fraction the numerator of which is equal to the amount on
deposit in the Spread Account as of such Determination Date (after giving effect
to any withdrawals from the Spread Account to be made on the
16
related Distribution Date) and the denominator of which is equal to the
Aggregate Principal Balance as of such Determination Date.
"Opinion of Counsel" means a written opinion of counsel, acceptable as to
form and substance, and reasonably acceptable as to issuing counsel, to the
Controlling Party.
"Policy" means the financial guaranty insurance policy issued by Financial
Security to the Trust Collateral Agent, as agent for the Trustee, for the
benefit of the Noteholders.
"Requisite Amount" shall mean, as of any Determination Date, (A) if no
Trigger Event and no Insurance Agreement Event of Default shall exist as of such
Determination Date, the sum of (a) the Floor Amount with respect to such
Determination Date and (b) the Spread Account Shortfall, if any, with respect to
such Determination Date; (B) if a Trigger Event shall exist as of such
Determination Date and no Insurance Agreement Event of Default shall have
occurred as of such Determination Date, the greater of (x) the Floor Amount and
(y) the sum of (i) 7.5% of the Aggregate Principal Balance with respect to such
Determination Date and (ii) the Spread Account Shortfall, if any, with respect
to such Determination Date; or (C) if an Insurance Agreement Event of Default
shall have occurred as of such Determination Date, the Pool Balance.
"Sale and Servicing Agreement" means the Sale and Servicing Agreement dated
as of July 12, 2006 among the Trust, AmeriCredit Financial Services, Inc., as
Servicer, Funding Trust and Xxxxx Fargo Bank, National Association, as Backup
Servicer and Trust Collateral Agent.
"Secured Obligations" means the Insurer Secured Obligations and the Trustee
Secured Obligations.
"Secured Parties" means each of the Trustee, in respect of the Trustee
Secured Obligations, and Financial Security, in respect of the Insurer Secured
Obligations.
"Security Interests" means the security interests and Liens in the
Collateral granted pursuant to Section 2.01 hereof.
"Spread Account" means the account established in accordance with Section
3.01(a) hereof.
"Spread Account Eligible Investments" means Eligible Investments held by
the Collateral Agent in the Spread Account and with respect to which the
Collateral Agent has taken Delivery. Any such Spread Account Eligible Investment
may be purchased by or through the Collateral Agent or any of its affiliates.
"Spread Account Initial Deposit" shall have the meaning assigned in Section
3.01(c) hereof.
17
"Spread Account Shortfall" means with respect to any Determination Date,
after the Target Satisfaction Date (provided that no Insurance Agreement Event
of Default shall have occurred), the excess, if any, of the Target OC Percentage
of the Aggregate Principal Balance on such Determination Date over the OC
Percentage of the Aggregate Principal Balance on such Determination Date.
"Step-Down Conditions" shall be satisfied as of each Distribution Date in
the following table if each of the following conditions are met on such
Distribution Date: (a) no Insurance Agreement Event of Default shall have
occurred; (b) all amounts owed to the Insurer under the Basic Documents have
been paid in full; (c) immediately before and after giving effect to any
reduction in the OC Level, (i) the Spread Account is at the Requisite Amount and
(ii) the Pro Forma Note Balance is less than or equal to the Required Pro Forma
Note Balance; (d) the arithmetic average of the monthly Delinquency Ratios for
the three immediately preceding Collection Periods is less than the percentage
set forth opposite such Distribution Date, (e) the Cumulative Net Loss Rate for
the related Collection Period is less than the percentage set forth opposite
such Distribution Date, (f) the Cumulative Default Rate for the related
Collection Period is less than the percentage set forth opposite such
Distribution Date and (g) the arithmetic average of the Monthly Extension Rates
for the three immediately preceding consecutive calendar months is less than
3.00%:
Distribution Cumulative Default
Date occurring Delinquency Cumulative Default
in: Ratio Net Loss Rate Rate
-----------------------------------------------------------------
January 2008 4.00% 5.70% 9.70%
July 2008 4.00% 7.50% 12.75%
January 2009 4.75% 9.00% 15.00%
"Target OC Percentage" shall mean, with respect to any Determination Date,
the sum of (i) the percentage equivalent of a fraction the numerator of which is
equal to the Floor Amount as of such Determination Date and the denominator of
which is equal to the Aggregate Principal Balance as of such Determination Date,
and (ii) the percentage equivalent of a fraction the numerator of which is equal
to the excess, if any, of (A) the Aggregate Principal Balance as of such
Determination Date over (B) the Required Pro Forma Note Balance as of such
Determination Date and the denominator of which is equal to the Aggregate
Principal Balance as of such Determination Date.
"Target Satisfaction Date" means the first Determination Date on which the
OC Percentage is greater than or equal to the Target OC Percentage.
"Transaction Documents" has the meaning provided in the Insurance
Agreement.
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"Trigger Date" means a Determination Date which occurs (i) on or after the
date of occurrence of a Trigger Event and prior to the date, if any, on which
such Trigger Event is Deemed Cured or (ii) on or after the date of occurrence of
an Insurance Agreement Event of Default.
"Trigger Event" shall mean, as of a Determination Date, the occurrence of
any of the following:
(i) the occurrence of a Cumulative Net Loss Test Failure;
(ii) the occurrence of a Delinquency Test Failure; or
(iii) the occurrence of a Cumulative Default Test Failure.
"Trustee" means the Trust Collateral Agent named in the Indenture.
"Trustee Secured Obligations" means all amounts and obligations which the
Trust may at any time owe to or on behalf of the Trustee, Collateral Agent,
Trust Collateral Agent (without regard to any limitations on the amounts payable
to the Trustee, the Collateral Agent or the Trust Collateral Agent specified in
such Transaction Documents), or the Noteholders under the Indenture or other
Transaction Documents.
"Trustee Termination Date" means the date on which the Trustee shall have
received, as Trustee on behalf of (and as agent for) the Noteholders, payment
and performance in full of all Trustee Secured Obligations.
"Underwriting Agreement" means the underwriting agreement dated as of July
11, 2006 among AmeriCredit Financial Services, Inc., AFS Funding Trust and
Wachovia Capital Markets, Inc.
"Uniform Commercial Code" or "UCC" means the Uniform Commercial Code in
effect in the relevant jurisdiction, as the same may be amended from time to
time.
"Xxxxx Fargo" means Xxxxx Fargo Bank, National Association, a national
banking association and its successors.
Section 1.02 Rules of Interpretation. The terms "hereof," "herein,"
"hereby" or "hereunder," unless otherwise modified by more specific reference,
shall refer to this Agreement in its entirety. Unless otherwise indicated in
context, the terms "Article," "Section," "Appendix," "Exhibit" or "Annex" shall
refer to an Article or Section of, or Appendix, Exhibit or Annex to, this
Agreement. The definition of a term shall include the singular, the plural, the
past, the present, the future, the active and the passive forms of such term.
19
ARTICLE II
SECURITY INTERESTS; THE COLLATERAL
Section 2.01 Grant of Security Interest by the Trust.
(a) In order to secure the performance of the Secured Obligations, the
Trust hereby pledges, assigns, grants, transfers and conveys to Xxxxx Fargo, as
Collateral Agent, on behalf of and for the benefit of the Secured Parties to
secure such Secured Obligations, a Lien on and security interest in (which Lien
and security interest is intended to be prior to all other Liens), all of its
right, title and interest in and to the following (all constituting Collateral
hereunder):
(i) the Spread Account as established pursuant to Section 3.01 of
this Agreement (including, without limitation, the Spread Account Initial
Deposit and all additional monies, checks, securities, investments and
other items or documents at any time held in or evidencing any such
accounts);
(ii) all of the Trust's right, title and interest in and to
investments made with proceeds of the property described in clause (i)
above, including investments made with amounts on deposit in the Spread
Account; and
(iii) all distributions, revenues, products, substitutions,
benefits, profits and proceeds, in whatever form, of any of the foregoing.
(b) In order to effectuate the provisions and purposes of this Agreement,
including for the purpose of perfecting the security interests granted
hereunder, the Trust represents and warrants that it has, prior to the execution
of this Agreement, executed and filed an appropriate Uniform Commercial Code
financing statement in Delaware sufficient to assure that the Collateral Agent,
as agent for the Secured Parties, has a first priority perfected security
interest in all Collateral which can be perfected by the filing of a financing
statement or has delivered to Financial Security a legal opinion acceptable to
Financial Security to the effect that no filings are required to perfect the
security interests granted hereunder.
Section 2.02 Perfection and Profit. The Trust intends the security
interests in favor of the Secured Parties to be prior to all other Liens in
respect of the Collateral, and the Trust shall take all actions necessary to
obtain and maintain, in favor of the Collateral Agent, for the benefit of the
Secured Parties, a first lien on and a first priority, perfected security
interest in the Collateral granted to the Collateral Agent. Subject to the
provisions hereof specifying the rights and powers of the Controlling Party from
time to time to control certain specified matters relating to the Collateral,
each Secured Party shall have all of the rights, remedies and recourse with
respect to the Collateral afforded a secured party under the Uniform Commercial
Code and all other applicable law in addition to, and not in limitation of, the
other rights, remedies and recourse granted to
20
such Secured Parties by this Agreement or any other law relating to the creation
and perfection of liens on, and security interests in, the Collateral.
Section 2.03 Reserved.
Section 2.04 The Trust Remains Liable. The Security Interests are granted
as security only and shall not (i) transfer or in any way affect or modify, or
relieve the Trust from, any obligation to perform or satisfy, any term,
covenant, condition or agreement to be performed or satisfied by the Trust under
or in connection with this Agreement, the Insurance Agreement or any other
Transaction Document to which it is a party or (ii) impose any obligation on any
of the Secured Parties or the Collateral Agent to perform or observe any such
term, covenant, condition or agreement or impose any liability on any of the
Secured Parties or the Collateral Agent for any act or omission on its part
relative thereto or for any breach of any representation or warranty on its part
contained therein or made in connection therewith, except, in each case, to the
extent provided herein and in the other Transaction Documents.
Section 2.05 Maintenance of Collateral.
(a) Safekeeping. The Collateral Agent agrees to maintain the Collateral
received by it and all records and documents relating thereto at the office of
the Collateral Agent specified in Section 8.06 hereof or such other address
(unless all filings have been made to continue the perfection of the security
interest in the Collateral to the extent such security interest can be perfected
by filing a financing statement, as evidenced by an Opinion of Counsel delivered
to the Controlling Party), as may be approved by the Controlling Party. The
Collateral Agent shall keep all Collateral and related documentation in its
possession separate and apart from all other property that it is holding in its
possession and from its own general assets and shall maintain accurate records
pertaining to the Spread Account Eligible Investments and Spread Account
included in the Collateral in such a manner as shall enable the Collateral Agent
and the Secured Parties to verify the accuracy of such record-keeping. The
Collateral Agent's books and records shall at all times show that the Collateral
is held by the Collateral Agent as agent of the Secured Parties and is not the
property of the Collateral Agent. The Collateral Agent will promptly report to
each Secured Party and the Trust any failure on its part to hold the Collateral
as provided in this Section 2.05(a) and will promptly take appropriate action to
remedy any such failure.
(b) Access. The Collateral Agent shall permit each of the Secured Parties,
or their respective duly authorized representatives, attorneys, auditors or
designees, to inspect the Collateral or the records relating to the Collateral
in the possession of or otherwise under the control of the Collateral Agent
pursuant hereto at such reasonable times during normal business hours as any
such Secured Party may reasonably request upon not less than one Business Day's
prior written notice. The costs and expenses associated with any such inspection
will be paid by the party making such inspection.
21
Section 2.06 Termination and Release of Rights.
(a) On the Insurer Termination Date, the rights, remedies, powers, duties,
authority and obligations conferred upon Financial Security pursuant to this
Agreement in respect of the Collateral shall terminate and be of no further
force and effect and all rights, remedies, powers, duties, authority and
obligations of Financial Security with respect to the Collateral shall be
automatically released; provided that any indemnity provided to or by Financial
Security herein shall survive such Insurer Termination Date. If Financial
Security is acting as Controlling Party on the Insurer Termination Date,
Financial Security agrees, at the expense of the Trust, to execute and deliver
such instruments as the successor Controlling Party may reasonably request to
effectuate such release, and any such instruments so executed and delivered
shall be fully binding on Financial Security and any Person claiming by, through
or under Financial Security.
(b) On the Trustee Termination Date, the rights, remedies, powers, duties,
authority and obligations, if any, conferred upon the Trustee pursuant to this
Agreement in respect of the Collateral shall terminate and be of no further
force and effect and all such rights, remedies, powers, duties, authority and
obligations of the Trustee with respect to the Collateral shall be automatically
released; provided that any indemnity provided to the Trustee herein shall
survive such Trustee Termination Date. If the Trustee is acting as Controlling
Party on the Trustee Termination Date, the Trustee agrees, at the expense of the
Trust, to execute and deliver such instruments as the Trust may reasonably
request to effectuate such release, and any such instruments so executed and
delivered shall be fully binding on the Trustee.
(c) On the Final Termination Date, the rights, remedies, powers, duties,
authority and obligations conferred upon the Collateral Agent and each Secured
Party pursuant to this Agreement shall terminate and be of no further force and
effect and all rights, remedies, powers, duties, authority and obligations of
the Collateral Agent and each Secured Party with respect to the Collateral shall
be released in accordance with the provisions of Section 3.03(b). On the Final
Termination Date, the Collateral Agent agrees, and each Secured Party agrees, at
the expense of the Trust, to execute such instruments of release, in recordable
form if necessary, in favor of the Trust as the Trust may reasonably request, to
deliver the Collateral, if any, in its possession to the Trust, and to otherwise
release the lien of this Agreement and release and deliver to the Trust the
Collateral.
Section 2.07 Non-Recourse Obligations of Trust. Notwithstanding anything
herein or in the other Transaction Documents to the contrary, the parties hereto
agree that the obligations of the Trust hereunder (without limiting the
obligation to make distributions in accordance with Section 3.03(b)) shall be
recourse only to the extent of amounts released to the Trust pursuant to
priority FOURTH of Section 3.03(b).
Section 2.08 Securities Intermediary. Xxxxx Fargo, hereby undertakes and
agrees to act as "securities intermediary" (as such term is defined in Section
8-102 (a)(14) of the Uniform Commercial Code as in effect in the State of New
York (the "New York
22
UCC")). In such capacity (Xxxxx Fargo, in such capacity being herein sometimes
referred to as the "Securities Intermediary") and in accordance with Section
3.01 of this Agreement, the Securities Intermediary has established the Spread
Account. The Securities Intermediary represents, warrants, acknowledges and
agrees that:
(1) It shall not change the name or account number of the Spread Account
without the prior written consent of the Collateral Agent;
(2) All securities or other property underlying any financial assets
deposited in or credited to the Spread Account shall be registered in the name
of the Securities Intermediary or the Collateral Agent or in blank or credited
to another securities account or accounts maintained in the name of the
Securities Intermediary, and in no case shall any financial asset deposited in
or credited to the Spread Account be registered in the name of Funding Trust
except to the extent the foregoing have been specially indorsed to the
Securities Intermediary in blank;
(3) All property delivered to the Securities Intermediary pursuant to this
Agreement for deposit in or credit to the Spread Account shall be promptly
credited to the Spread Account;
(4) The Spread Account is a "securities account" as such term is defined in
Section 8-501(a) of the New York UCC, and the Securities Intermediary agrees
that each item of property (whether investment property, financial asset,
security, instrument or cash) deposited in or credited to the Spread Account
shall be treated as a "financial asset" within the meaning of Section
8-102(a)(9) of the New York UCC and that, subject to the terms of this
Agreement, the Securities Intermediary will treat the Collateral Agent as
entitled to exercise the rights that comprise any financial asset deposited in
or credited to such Account; and
(5) If at any time the Securities Intermediary shall receive any order from
the Collateral Agent directing transfer or redemption of any financial asset
relating to the Spread Account, the Securities Intermediary shall comply with
such entitlement order without further consent by Funding Trust or any other
person.
Without limiting the generality of Section 8.11 of this Agreement, the
parties agree that both this Agreement and the Spread Account shall be governed
by the laws of the State of New York. Regardless of any provision in any other
agreement, for purposes of the New York UCC, New York shall be deemed to be the
Securities Intermediary's jurisdiction and the Spread Account (as well as all of
the securities entitlements related thereto) shall be governed by the laws of
the State of New York.
23
ARTICLE III
SPREAD ACCOUNT
Section 3.01 Establishment of Spread Account, Initial Deposits into Spread
Account.
(a) On or prior to the Closing Date, the Collateral Agent shall establish
at its office or at another depository institution or trust company an Eligible
Account, designated, "Spread Account - Series 2006-A-F - Xxxxx Fargo, as
Collateral Agent for Financial Security Assurance Inc. and Well Fargo, as
Trustee" (the "Spread Account").
(b) No withdrawals may be made of funds in the Spread Account except as
provided in Section 3.03 of this Agreement. Except as specifically provided in
this Agreement, funds in the Spread Account shall not be commingled with any
other monies. All monies deposited from time to time in the Spread Account and
all investments made with such monies shall be held by the Collateral Agent as
part of the Collateral.
(c) The parties hereto acknowledge and agree that the initial amount
deposited into the Spread Account comprising part of the Collateral shall be in
the amount of $20,000,032.34 (the "Spread Account Initial Deposit"). The Trust
and the Collateral Agent confirm that concurrently with the execution and
delivery of this Agreement such amount has been deposited by the Trust with the
Collateral Agent for deposit into the Spread Account. The parties hereto agree
that on each Subsequent Transfer Date, the Trust will, pursuant to Section 2.2
of the Sale and Servicing Agreement, deliver the Subsequent Spread Account
Deposit for such Subsequent Transfer Date to the Collateral Agent. The
Collateral Agent shall deposit all cash distributions with respect to the
Collateral into the Spread Account.
(d) Except as specifically provided herein, the Spread Account shall be
maintained by the Collateral Agent at all times separate and apart from any
other account of the Trust or the Servicer. All income or loss on investments of
funds in the Spread Account shall be reported by AmeriCredit as taxable income
or loss of AmeriCredit.
Section 3.02 Investments.
(a) Funds which may at any time be held in the Spread Account shall be
invested and reinvested by the Collateral Agent, at the written direction (which
may include, subject to the provisions hereof, general standing instructions) of
the Servicer (unless a Servicer Termination Event shall have occurred and be
continuing, in which case at the written direction of the Controlling Party) or
its designee received by the Collateral Agent by 1:00 P.M., New York City time,
on the Business Day prior to the date on which such investment shall be made, in
one or more Spread Account Eligible Investments in the manner specified in
Section 3.02(c). If no written direction with respect to any portion of the
Spread Account is received by the Collateral Agent, the Collateral Agent shall
invest such funds overnight in investments described in paragraph
24
(g) of Eligible Investments, provided that the Collateral Agent shall not be
liable for any loss or absence of income resulting from such investments.
(b) Each investment made pursuant to this Section 3.02 on any date shall
mature not later than the Business Day immediately preceding the Distribution
Date next succeeding the day such investment is made, provided that any
investment of funds in the Spread Account maintained with the Collateral Agent
in any investment as to which the Collateral Agent is the obligor, if otherwise
qualified as an Eligible Investment may mature on the Distribution Date next
succeeding the date of such investment.
(c) Subject to the other provisions hereof, the Collateral Agent shall have
sole control over each such investment and the income thereon, and any
certificate or other instrument evidencing any such investment, if any, shall be
delivered directly to the Collateral Agent or its agent, together with each
document of transfer, if any, necessary to transfer title to such investment to
the Collateral Agent in a manner which complies with Section 2.04 and the
requirements of the definition of "Spread Account Eligible Investments."
(d) If amounts on deposit in the Spread Account are at any time invested in
a Spread Account Eligible Investment payable on demand, the Collateral Agent
shall (i) consistent with any notice required to be given thereunder, demand
that payment thereon be made on the last day such Spread Account Eligible
Investment is permitted to mature under the provisions hereof and (ii) demand
payment of all amounts due thereunder promptly upon receipt of written notice
from the Controlling Party to the effect that such investment does not
constitute a Spread Account Eligible Investment.
(e) All monies on deposit in the Spread Account, together with any deposits
or securities in which such monies may be invested or reinvested, and any gains
from such investments, shall constitute Collateral hereunder subject to the
Security Interest of the Secured Parties.
(f) Subject to Section 4.03 hereof, the Collateral Agent shall not be
liable by reason of any insufficiency in the Spread Account resulting from any
loss on any Spread Account Eligible Investment included therein.
Section 3.03 Distributions: Priority of Payments.
(a) Prior to each Distribution Date, the Controlling Party will direct the
Collateral Agent with respect to the amounts to be distributed pursuant to
Section 3.03(b) on such Distribution Date and the Collateral Agent shall notify
the Trustee of such determination. Additionally, on each Determination Date on
which the amount in the Spread Account is less than the Requisite Amount with
respect to such Determination Date, the Collateral Agent shall notify the Trust
Collateral Agent of the amount of such shortfall, and on the next succeeding
Distribution Date, the Trust Collateral Agent shall be required pursuant to
Section 5.7(b) of the Sale and Servicing Agreement to deliver such amount, to
the extent available in accordance with the Sale and Servicing
25
Agreement, to the Collateral Agent for deposit into the Spread Account subject
to Section 3.03(b) hereof.
(b) On each Distribution Date, following delivery by the Trustee to the
Collateral Agent of the amounts required under the Sale and Servicing Agreement
to be delivered to the Collateral Agent for deposit in the Spread Account, and
upon receipt of a Deficiency Notice, or notice with respect to an Accelerated
Payment Amount Shortfall or notice with respect to other amounts referred to in
priority SECOND being due and owing, the Collateral Agent shall make the
following distributions from the Spread Account in the following order of
priority and, in each case, to the extent of the amount specified:
FIRST, if there exists a Deficiency Claim Amount, to the Trust
Collateral Agent for deposit in the Collection Account the amount of such
Deficiency Claim Amount; and
SECOND, to the extent that the funds in the Spread Account are in
excess of the Requisite Amount or, following the Final Termination Date, to
the extent of any funds remaining in the Spread Account:
first, if the Trust Collateral Agent has delivered an Accelerated
Payment Shortfall Notice and if there exists an Accelerated Payment
Amount Shortfall, to the Trust Collateral Agent for deposit in the
Collection Account the amount of such Accelerated Payment Amount
Shortfall;
second, amounts in respect of indemnity payments to the Trustee,
Lockbox Bank, Owner Trustee, Custodian, Backup Servicer, Collateral
Agent, Trust Collateral Agent, or other service provider that have not
been reimbursed by the Servicer, to such Persons pro rata in
accordance with amounts due to such Persons;
third, to the payment of any expenses payable pursuant to Section 4.5
of the Sale and Servicing Agreement to the extent not paid by the
Servicer; and
fourth, to the Certificateholder free and clear of the Lien
established hereunder.
Section 3.04 General Provisions Regarding Spread Account.
(a) Promptly upon the establishment (initially or upon any relocation) of
the Spread Account hereunder, the Collateral Agent shall advise the Trust and
each Secured Party in writing of the name and address of the depository
institution or trust company where the Spread Account has been established (if
not Xxxxx Fargo or any successor Collateral Agent in its commercial banking
capacity), the name of the officer of the depository institution who is
responsible for overseeing the Spread Account, the account
26
number and the individuals whose names appear on the signature cards for the
Spread Account. The Trust shall cause each such depository institution or trust
company to execute a written agreement, in form and substance satisfactory to
the Controlling Party, waiving, and the Collateral Agent by its execution of
this Agreement hereby waives (except to the extent expressly provided herein),
in each case to the extent permitted under applicable law, (i) any banker's or
other statutory or similar Lien, and (ii) any right of set-off or other similar
right under applicable law with respect to the Spread Account and agreeing, and
the Collateral Agent by its execution of this Agreement hereby agrees, to notify
the Trust, the Collateral Agent, and each Secured Party of any charge or claim
against or with respect to the Spread Account. The Collateral Agent shall give
the Trust and each Secured Party at least ten Business Days' prior written
notice of any change in the location of the Spread Account or in any related
account information. Anything herein to the contrary notwithstanding, unless
otherwise consented to by the Controlling Party in writing, the Collateral Agent
shall have no right to change the location of the Spread Account.
(b) Upon the written request of the Controlling Party or the Trust, the
Collateral Agent shall cause, at the expense of the Trust, the depository
institution at which the Spread Account is located to forward to the requesting
party copies of all monthly account statements for the Spread Account.
(c) If at any time the Spread Account ceases to be an Eligible Account, the
Collateral Agent shall notify the Controlling Party of such fact and shall
establish within 5 Business Days of such determination, in accordance with
paragraph (a) of this Section, a successor Spread Account thereto, which shall
be an Eligible Account, at another depository institution acceptable to the
Controlling Party.
(d) No passbook, certificate of deposit or other similar instrument
evidencing the Spread Account shall be issued, and all contracts, receipts and
other papers, if any, governing or evidencing the Spread Account shall be held
by the Collateral Agent.
Section 3.05 Reports by the Collateral Agent. The Collateral Agent shall
report to the Trustee, Financial Security, the Trust and the Servicer on a
monthly basis no later than each Distribution Date with respect to the amount on
deposit in the Spread Account and the identity of the investments included
therein as of the last day of the related Monthly Period, and shall provide
accounts of deposits into and withdrawals from the Spread Account, and of the
investments made therein, to the independent accountants upon their request for
purposes of their reports pursuant to Section 4.11 of the Sale and Servicing
Agreement.
ARTICLE IV
THE COLLATERAL AGENT
Section 4.01 Appointment and Powers. Subject to the terms and conditions
hereof, each of the Secured Parties hereby appoints Xxxxx Fargo, as Collateral
Agent with
27
respect to the Collateral, and Xxxxx Fargo hereby accepts such appointment and
agrees to act as Collateral Agent with respect to the Collateral for the Secured
Parties, to maintain custody and possession of the Collateral (except as
otherwise provided hereunder) and to perform the other duties of the Collateral
Agent in accordance with the provisions of this Agreement. Each Secured Party
hereby authorizes the Collateral Agent to take such action on its behalf, and to
exercise such rights, remedies, powers and privileges hereunder, as the
Controlling Party may direct and as are specifically authorized to be exercised
by the Collateral Agent by the terms hereof, together with such actions, rights,
remedies, powers and privileges as are reasonably incidental thereto. The
Collateral Agent shall act upon and in compliance with the written instructions
of the Controlling Party delivered pursuant to this Agreement promptly following
receipt of such written instructions; provided that the Collateral Agent shall
not act in accordance with any instructions (i) which are not authorized by, or
in violation of the provisions of, this Agreement or (ii) for which the
Collateral Agent has not received reasonable indemnity. Receipt of such
instructions shall not be a condition to the exercise by the Collateral Agent of
its express duties hereunder, except where this Agreement provides that the
Collateral Agent is permitted to act only following and in accordance with such
instructions.
Section 4.02 Performance of Duties. The Collateral Agent shall not have any
duties or responsibilities except those expressly set forth in this Agreement
and the other Transaction Documents to which the Collateral Agent is a party or
as directed by the Controlling Party in accordance with this Agreement.
Section 4.03 Limitation on Liability. Neither the Collateral Agent nor any
of its directors, officers or employees, shall be liable for any action taken or
omitted to be taken by it or them hereunder, or in connection herewith, except
that the Collateral Agent shall be liable for its gross negligence, bad faith or
willful misconduct; nor shall the Collateral Agent be responsible for the
validity, effectiveness, value, sufficiency or enforceability against the Trust
of this Agreement or any of the Collateral (or any part thereof) or perfection
thereof. Notwithstanding any term or provision of this Agreement, the Collateral
Agent shall not incur any liability to the Trust or the Secured Parties for any
action taken or omitted by the Collateral Agent in connection with the
Collateral, except for gross negligence or willful misconduct on the part of the
Collateral Agent, and, further, the Collateral Agent shall not incur any
liability to the Secured Parties except for gross negligence or willful
misconduct in carrying out its duties to the Secured Parties. Subject to Section
4.04, the Collateral Agent shall be protected and shall incur no liability to
any such party in relying upon the accuracy, acting in reliance upon the
contents, and assuming the genuineness of any notice, demand, certificate,
signature, instrument or other document reasonably believed by the Collateral
Agent to be genuine and to have been duly executed by the appropriate signatory,
and (absent actual knowledge to the contrary by a Responsible Officer of the
Collateral Agent) the Collateral Agent shall not be required to make any
independent investigation with respect thereto. The Collateral Agent shall at
all times be free independently to establish to its reasonable satisfaction, but
shall have no duty to independently verify, the existence or nonexistence of
facts that
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are a condition to the exercise or enforcement of any right or remedy hereunder
or under any of the Transaction Documents. The Collateral Agent may consult with
counsel, and shall not be liable for any action taken or omitted to be taken by
it hereunder in good faith and in accordance with the written advice of such
counsel. The Collateral Agent shall not be under any obligation to expend or
risk its own funds or otherwise incur financial liability in the performance of
any of its duties hereunder, or to exercise any of the remedial rights or powers
vested in it by this Agreement or to follow any direction from the Controlling
Party unless it shall have received reasonable security or indemnity
satisfactory to the Collateral Agent against the costs, expenses and liabilities
which might be incurred by it in connection therewith.
Section 4.04 Reliance upon Documents. In the absence of bad faith or
negligence on its part, the Collateral Agent shall be entitled to rely on any
communication, instrument, paper or other document reasonably believed by it to
be genuine and correct and to have been signed or sent by the proper Person or
Persons and shall have no liability in acting, or omitting to act, where such
action or omission to act is in reasonable reliance upon any statement or
opinion contained in any such document or instrument.
Section 4.05 Successor Collateral Agent.
(a) Merger. Any Person into which the Collateral Agent may be converted or
merged, or with which it may be consolidated, or to which it may sell or
transfer its trust business and assets as a whole or substantially as a whole,
or any Person resulting from any such conversion, merger, consolidation, sale or
transfer to which the Collateral Agent is a party, shall (provided it is
otherwise qualified to serve as the Collateral Agent hereunder) be and become a
successor Collateral Agent hereunder and be vested with all of the title to and
interest in the Collateral and all of the trusts, powers, discretions,
immunities, privileges and other matters as was its predecessor without the
execution or filing of any instrument or any further act, deed or conveyance on
the part of any of the parties hereto, anything herein to the contrary
notwithstanding, except to the extent, if any, that any such action is necessary
to perfect, or continue the perfection of, the security interest of the Secured
Parties in the Collateral.
(b) Resignation. The Collateral Agent and any successor Collateral Agent
may resign only (i) 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 Collateral Agent, and the Controlling Party
does not elect to waive the Collateral Agent's obligation to perform those
duties which render it legally unable to act or elect to delegate those duties
to another Person, or (ii) with the prior written consent of the Controlling
Party, such consent not to be unreasonably withheld. The Collateral Agent shall
give not less than 60 days' prior written notice of any such permitted
resignation by registered or certified mail to the other Secured Party and the
Trust; provided, that such resignation shall take effect only upon the date
which is the latest of (i) the effective date of the appointment of a successor
Collateral Agent and the acceptance in writing by such
29
successor Collateral Agent of such appointment and of its obligation to perform
its duties hereunder in accordance with the provisions hereof, (ii) delivery of
the Collateral to such successor to be held in accordance with the procedures
specified in Article II hereof, and (iii) receipt by the Controlling Party of an
Opinion of Counsel to the effect described in Section 5.02. Notwithstanding the
preceding sentence, if by the contemplated date of resignation specified in the
written notice of resignation delivered as described above no successor
Collateral Agent or temporary successor Collateral Agent has been appointed
Collateral Agent and accepted such appointment or becomes the Collateral Agent
pursuant to subsection (d) hereof, the resigning Collateral Agent may petition a
court of competent jurisdiction in New York, New York for the appointment of a
successor.
(c) Removal. The Collateral Agent may be removed by the Controlling Party
at any time, with or without cause, by an instrument or concurrent instruments
in writing delivered to the Collateral Agent, the other Secured Party and the
Issuer. A temporary successor may be removed at any time to allow a successor
Collateral Agent to be appointed pursuant to subsection (d) below. Any removal
pursuant to the provisions of this subsection (c) shall take effect only upon
the date which is the latest of (i) the effective date of the appointment of a
successor Collateral Agent and the acceptance in writing by the successor
Collateral Agent of such appointment and of its obligation to perform its duties
hereunder in accordance with the provisions hereof, (ii) delivery of the
Collateral to such successor to be held in accordance with the procedures
specified in Article II hereof and (iii) receipt by the Controlling Party of an
Opinion of Counsel to the effect described in Section 5.02.
(d) Acceptance by Successor. The Controlling Party shall have the sole
right to appoint each successor Collateral Agent. Every temporary or permanent
successor Collateral Agent appointed hereunder shall execute, acknowledge and
deliver to its predecessor and to each Secured Party and the Trust an instrument
in writing accepting such appointment hereunder and the relevant predecessor
shall execute, acknowledge and deliver such other documents and instruments as
will effectuate the delivery of all Collateral to the successor Collateral Agent
to be held in accordance with the procedures specified in Article II hereof,
whereupon such successor, without any further act, deed or conveyance, shall
become fully vested with all the estates, properties, rights, powers, duties and
obligations of its predecessor. Such predecessor shall, nevertheless, on the
written request of either Secured Party or the Trust, execute and deliver an
instrument transferring to such successor all the estates, properties, rights
and powers of such predecessor hereunder. In the event that any instrument in
writing from the Trust or a Secured Party is reasonably required by a successor
Collateral Agent to more fully and certainly vest in such successor the estates,
properties, rights, powers, duties and obligations vested or intended to be
vested hereunder in such Collateral Agent, any and all such written instruments
shall, at the request of the temporary or permanent successor Collateral Agent,
be forthwith executed, acknowledged and delivered by the Issuer. The designation
of any successor Collateral Agent and the instrument or instruments removing any
Collateral Agent and appointing a successor hereunder, together with all other
instruments provided for herein, shall be maintained with the records relating
to the
30
Collateral and, to the extent required by applicable law, filed or recorded by
the successor Collateral Agent in each place where such filing or recording is
necessary to effect the transfer of the Collateral to the successor Collateral
Agent or to protect or continue the perfection of the security interests granted
hereunder.
Section 4.06 Indemnification. The Trust shall indemnify the Collateral
Agent, its directors, officers, employees and agents for, and hold the
Collateral Agent, its directors, officers, employees and agents harmless
against, any loss, liability or expense (including the costs and expenses of
defending against any claim of liability) arising out of or in connection with
the Collateral Agent's acting as Collateral Agent hereunder, except such loss,
liability or expense as shall result from the gross negligence, bad faith or
willful misconduct of the Collateral Agent or its officers, employees, directors
or agents. The obligation of the Trust under this Section shall survive the
termination of this Agreement and the resignation or removal of any Collateral
Agent. The Collateral Agent covenants and agrees that the obligations of the
Trust hereunder and under Section 4.07 shall be limited to the amounts
distributed pursuant to Section 5.7(b)(ii) of the Sale and Servicing Agreement
and Section 3.03(b) of this Agreement, and further covenants not to take any
action to enforce its rights to indemnification hereunder with respect to the
Trust and to payment under Section 4.07, or otherwise to assert any Lien or take
any other action in respect of the Collateral, until the Final Termination Date.
Section 4.07 Compensation and Reimbursement. The Trust agrees for the
benefit of the Secured Parties and as part of the Secured Obligations (a) to pay
to the Collateral Agent, from time to time, reasonable compensation for all
services rendered by it hereunder (which compensation shall not be limited by
any provision of law in regard to the compensation of a collateral trustee); and
(b) to reimburse the Collateral Agent upon its request for all reasonable
expenses, disbursements and advances incurred or made by the Collateral Agent in
accordance with any provision of, or carrying out its duties and obligations
under, this Agreement (including the reasonable compensation and fees and the
expenses and disbursements of its agents, any independent certified public
accountants and independent counsel), except any expense, disbursement or
advances as may be attributable to gross negligence, bad faith or willful
misconduct on the part of the Collateral Agent.
Section 4.08 Representations and Warranties of Xxxxx Fargo. Xxxxx Fargo
represents and warrants to the Trust and to each Secured Party as follows:
(a) Due Organization. Xxxxx Fargo is a national banking association, duly
organized, validly existing and in good standing under the laws of the United
States and is duly authorized and licensed under applicable law to conduct its
business as presently conducted.
(b) Corporate Power. Xxxxx Fargo has all requisite right, power and
authority to execute and deliver this Agreement and to perform all of its duties
as Collateral Agent hereunder.
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(c) Due Authorization. The execution and delivery by Xxxxx Fargo of this
Agreement and the other Transaction Documents to which it is a party, and the
performance by Xxxxx Fargo of its duties hereunder and thereunder, have been
duly authorized by all necessary corporate proceedings and no further approvals
or filings, including any governmental approvals, are required for the valid
execution and delivery by Xxxxx Fargo, or the performance by Xxxxx Fargo, of
this Agreement and such other Transaction Documents.
(d) Valid and Binding Agreement. Xxxxx Fargo has duly executed and
delivered this Agreement and each other Transaction Document to which it is a
party, and each of this Agreement and each such other Transaction Document
constitutes the legal, valid and binding obligation of Xxxxx Fargo, enforceable
against Xxxxx Fargo, in accordance with its terms, except as (i) such
enforceability may be limited by bankruptcy, insolvency, reorganization and
similar laws relating to or affecting the enforcement of creditors' rights
generally and (ii) the availability of equitable remedies may be limited by
equitable principles of general applicability.
Section 4.09 Waiver of Setoffs. The Collateral Agent hereby expressly
waives any and all rights of setoff that the Collateral Agent may otherwise at
any time have under applicable law with respect to the Spread Account and agrees
that amounts in the Spread Account shall at all times be held and applied solely
in accordance with the provisions hereof.
Section 4.10 Control by the Controlling Party. The Collateral Agent shall
comply with notices and instructions given by the Trust only if accompanied by
the written consent of the Controlling Party, except that if any Default shall
have occurred and be continuing, the Collateral Agent shall act upon and comply
with notices and instructions given by the Controlling Party alone in the place
and stead of the Trust.
ARTICLE V
COVENANTS OF THE TRUST
Section 5.01 Preservation of Collateral. Subject to the rights, powers and
authorities granted to the Collateral Agent and the Controlling Party in this
Agreement, the Trust shall take such action as is necessary and proper with
respect to the Collateral in order to preserve and maintain the Collateral and
to cause (subject to the rights of the Secured Parties) the Collateral Agent to
perform its obligations with respect to the Collateral as provided herein. The
Trust will do, execute, acknowledge and deliver, or cause to be done, executed,
acknowledged and delivered, such instruments of transfer or take such other
steps or actions as may be necessary, or required by the Controlling Party, to
perfect the Security Interests granted hereunder in the Collateral, to ensure
that such Security Interests rank prior to all other Liens and to preserve the
priority of such Security Interests and the validity and enforceability thereof.
Upon any delivery or substitution of Collateral, the Trust shall be obligated to
execute such documents and perform such actions as are necessary to create in
the Collateral Agent for the benefit of
32
the Secured Parties a valid first Lien on, and valid and perfected, first
priority security interest in, the Collateral so delivered and to deliver the
Collateral to the Collateral Agent, free and clear of any other Lien together
with satisfactory assurances thereof, and to pay any reasonable costs incurred
by any of the Secured Parties or the Collateral Agent (including its respective
agents) or otherwise in connection with such delivery.
Section 5.02 Opinions as to Collateral. Not more than 90 days nor less than
30 days prior to (i) each May 1, during the term of this Agreement and (ii) each
date on which the Trust proposes to take any action contemplated by Section
5.06, the Trust shall, at its own cost and expense, furnish to each Secured
Party, the Collateral Agent and each Rating Agency an Opinion of Counsel either
(a) stating that, in the opinion of such counsel, such action has been taken
with respect to the execution and filing of any financing statements and
continuation statements and other actions as are necessary to perfect, maintain
and protect the lien and security interest of the Collateral Agent (and the
priority thereof), on behalf of the Secured Parties, with respect to the
Collateral against all creditors of and purchasers from the Trust and reciting
the details of such action, or (b) stating that, in the opinion of such counsel,
no such action is necessary to maintain such perfected lien and security
interest. Such Opinion of Counsel shall further describe each execution and
filing of any financing statements and continuation statements and such other
actions as will, in the opinion of such counsel, be required to perfect,
maintain and protect the lien and security interest of the Collateral Agent, on
behalf of the Secured Parties, with respect to the Collateral against all
creditors of and purchasers from the Trust for a period, specified in such
Opinion, continuing until a date not earlier than eighteen months from the date
of such Opinion.
Section 5.03 Notices. In the event that the Trust acquires knowledge of the
occurrence and continuance of any Insurance Agreement Event of Default or Event
of Default or of any event of default or like event, howsoever described or
called, under any of the Transaction Documents, the Trust shall immediately give
written notice thereof to the Collateral Agent and each Secured Party.
Section 5.04 Waiver of Stay or Extension Laws; Marshaling of Assets. The
Trust covenants, to the fullest extent permitted by applicable law, that it will
not at any time insist upon, plead, or in any manner whatsoever claim or take
the benefit or advantage of, any appraisement, valuation, stay, extension or
redemption law wherever enacted, now or at any time hereafter in force, in order
to prevent or hinder the enforcement of this Agreement or any absolute sale of
the Collateral or any part thereof, or the possession thereof by any purchaser
at any sale under Article VII of this Agreement; and the Trust, to the fullest
extent permitted by applicable law, for itself and all who may claim under it,
hereby waives the benefit of all such laws, and covenants that it will not
hinder, delay or impede the execution of any power herein granted to the
Collateral Agent, but will suffer and permit the execution of every such power
as though no such law had been enacted. The Trust, for itself and all who may
claim under it, waives, to the fullest extent permitted by applicable law, all
right to have the Collateral marshaled upon any foreclosure or other disposition
thereof.
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Section 5.05 Noninterference, etc. The Trust shall not (i) waive or alter
any of its rights under the Collateral (or any agreement or instrument relating
thereto) without the prior written consent of the Controlling Party; or (ii)
fail to pay any tax, assessment, charge or fee levied or assessed against the
Collateral, or to defend any action, if such failure to pay or defend may
adversely affect the priority or enforceability of the Trust's right, title or
interest in and to the Collateral or the Collateral Agent's lien on, and
security interest in, the Collateral for the benefit of the Secured Parties; or
(iii) take any action, or fail to take any action, if such action or failure to
take action, will interfere with the enforcement of any rights under the
Transaction Documents.
Section 5.06 Trust Changes.
(a) Change in Name, Structure, etc. The Trust shall not change its name,
identity or structure unless it shall have given each Secured Party and the
Collateral Agent at least 30 days' prior written notice thereof, shall have
effected any necessary or appropriate assignments or amendments thereto and
filings of financing statements or amendments thereto, and shall have delivered
to the Collateral Agent and each Secured Party an Opinion of Counsel of the type
described in Section 5.02.
(b) Relocation of the Trust. The Trust shall not change its principal
office unless it gives each Secured Party and the Collateral Agent at least 30
days' prior written notice of any relocation of its principal office. If the
Trust relocates its principal office or principal place of business from
Delaware, the Trust shall give prior notice thereof to the Controlling Party and
the Collateral Agent and shall effect whatever appropriate recordations and
filings are necessary and shall provide to the Controlling Party and the
Collateral Agent an Opinion of Counsel, to the effect that, upon the recording
of any necessary assignments or amendments to previously-recorded assignments
and filing of any necessary amendments to the previously filed financing or
continuation statements or upon the filing of one or more specified new
financing statements, and the taking of such other actions as may be specified
in such opinion, the security interests in the Collateral shall remain, after
such relocation, valid and perfected.
ARTICLE VI
CONTROLLING PARTY; INTERCREDITOR PROVISIONS
Section 6.01 Appointment of Controlling Party. From and after the Closing
Date until the Insurer Termination Date, Financial Security shall be the
Controlling Party and shall be entitled to exercise all the rights given the
Controlling Party hereunder. From and after the Insurer Termination Date, the
Trustee shall be the Controlling Party hereunder until the Trustee Termination
Date. Notwithstanding the foregoing, in the event that a Financial Security
Default shall have occurred and be continuing, the Trustee shall be the
Controlling Party until the applicable Trustee Termination Date. If prior to an
Insurer Termination Date the Trustee shall have become the Controlling Party as
a result of the occurrence of a Financial Security Default and either such
Financial Security Default is cured or for any other reason ceases to exist or
the Trustee Termination Date
34
occurs, then upon such cure or other cessation or on such Trustee Termination
Date, as the case may be, Financial Security shall, upon notice thereof being
duly given to the Collateral Agent, again be the Controlling Party.
Section 6.02 Controlling Party's Authority.
(a) The Trust hereby irrevocably appoints the Controlling Party, and any
successor to the Controlling Party appointed pursuant to Section 6.01, its true
and lawful attorney, with full power of substitution, in the name of the Trust,
the Secured Parties or otherwise, but at the expense of the Trust, to the extent
permitted by law to exercise, at any time and from time to time while any
Insurance Agreement Event of Default has occurred and is continuing, any or all
of the following powers with respect to the Collateral: (i) to demand, xxx for,
collect, receive and give acquittance for any and all monies due or to become
due upon or by virtue thereof, (ii) to settle, compromise, compound, prosecute
or defend any action or proceeding with respect thereto, (iii) to sell,
transfer, assign or otherwise deal with the same or the proceeds thereof as
fully and effectively as if the Collateral Agent were the absolute owner
thereof, and (iv) to extend the time of payment of any or all thereof and to
make any allowance or other adjustments with respect thereto.
(b) Each Secured Party hereby irrevocably and unconditionally constitutes
and appoints the Controlling Party, and any successor to such Controlling Party
appointed pursuant to Section 6.01 from time to time, as the true and lawful
attorney-in-fact of such Secured Party for so long as such Secured Party is the
Non-Controlling Party, with full power of substitution, to execute, acknowledge
and deliver any notice, document, certificate, paper, pleading or instrument and
to do in the name of the Controlling Party as well as in the name, place and
stead of such Secured Party such acts, things and deeds for and on behalf of and
in the name of such Secured Party under this Agreement which such Secured Party
could or might do or which may be necessary, desirable or convenient in such
Controlling Party's sole discretion to effect the purposes contemplated
hereunder and, without limitation, exercise full right, power and authority to
take, or defer from taking, any and all acts with respect to the administration
of the Collateral, and the enforcement of the rights of the Secured Parties
hereunder, on behalf of and for the benefit of such Controlling Party and such
Non-Controlling Party, as their interests may appear.
Section 6.03 Rights of Secured Parties. The Non-Controlling Party at any
time expressly agrees that it shall not assert any rights that it may otherwise
have, as a Secured Party with respect to the Collateral, to direct the
maintenance, sale or other disposition of the Collateral or any portion thereof,
notwithstanding the occurrence and continuance of any Default or any
nonperformance by the Trust of any obligation owed to such Secured Party
hereunder or under any other Transaction Document, and each party hereto agrees
that the Controlling Party shall be the only Person entitled to assert and
exercise such rights.
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Section 6.04 Degree of Care.
(a) Controlling Party. Notwithstanding any term or provision of this
Agreement, the Controlling Party shall incur no liability to the Trust for any
action taken or omitted by the Controlling Party in connection with the
Collateral, except for any gross negligence, bad faith or willful misconduct on
the part of the Controlling Party and, further, shall incur no liability to the
Non-Controlling Party except for a breach of the terms of this Agreement or for
gross negligence, bad faith or willful misconduct in carrying out its duties, if
any, to the Non-Controlling Party. The Controlling Party shall be protected and
shall incur no liability to any such party in relying upon the accuracy, acting
in reliance upon the contents and assuming the genuineness of any notice,
demand, certificate, signature, instrument or other document believed by the
Controlling Party to be genuine and to have been duly executed by the
appropriate signatory, and (absent manifest error or actual knowledge to the
contrary) the Controlling Party shall not be required to make any independent
investigation with respect thereto. The Controlling Party shall, at all times,
be free independently to establish to its reasonable satisfaction the existence
or nonexistence, as the case may be, of any fact the existence or nonexistence
of which shall be a condition to the exercise or enforcement of any right or
remedy under this Agreement or any of the Transaction Documents.
(b) The Non-Controlling Party. The Non-Controlling Party shall not be
liable to the Trust for any action or failure to act by the Controlling Party or
the Collateral Agent in exercising, or failing to exercise, any rights or
remedies hereunder.
ARTICLE VII
REMEDIES UPON DEFAULT
Section 7.01 Remedies upon a Default. If a Default has occurred and is
continuing, the Collateral Agent shall, at the direction of the Controlling
Party, take whatever action at law or in equity as may appear necessary or
desirable in the judgment of the Controlling Party to collect and satisfy all
Secured Obligations (including, but not limited to, foreclosure upon the related
Collateral and all other rights available to secured parties under applicable
law) or to enforce performance and observance of any obligation, agreement or
covenant under any of the Transaction Documents.
Section 7.02 Waiver of Default. The Controlling Party shall have the sole
right, to be exercised in its complete discretion, to waive any Default by a
writing setting forth the terms, conditions and extent of such waiver signed by
the Controlling Party and delivered to the Collateral Agent, the other Secured
Party and the Issuer. Any such waiver shall be binding upon the Non-Controlling
Party and the Collateral Agent. Unless such writing expressly provides to the
contrary, any waiver so granted shall extend only to the specific event or
occurrence which gave rise to the Default so waived and not to any other similar
event or occurrence which occurs subsequent to the date of such waiver.
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Section 7.03 Restoration of Rights and Remedies. If the Collateral Agent
has instituted any proceeding to enforce any right or remedy under this
Agreement, and such proceeding has been discontinued or abandoned for any
reason, or has been determined adversely to the Collateral Agent, then and in
every such case the Trust, the Collateral Agent and each of the Secured Parties
shall, subject to any determination in such proceeding, be restored severally
and respectively to their former positions hereunder, and thereafter all rights
and remedies of the Secured Parties shall continue as though no such proceeding
had been instituted.
Section 7.04 No Remedy Exclusive. No right or remedy herein conferred upon
or reserved to the Collateral Agent, the Controlling Party or any of the Secured
Parties is intended to be exclusive of any other right or remedy, and every
right or remedy shall, to the extent permitted by law, be cumulative and in
addition to every other right and remedy given hereunder or now or hereafter
existing at law, in equity or otherwise (but, in each case, shall be subject to
the provisions of this Agreement limiting such remedies), and each and every
right, power and remedy whether specifically herein given or otherwise existing
may be exercised from time to time and as often and in such order as may be
deemed expedient by the Controlling Party, and the exercise of or the beginning
of the exercise of any right or power or remedy shall not be construed to be a
waiver of the right to exercise at the same time or thereafter any other right,
power or remedy.
ARTICLE VIII
MISCELLANEOUS
Section 8.01 Further Assurances. Each party hereto shall take such action
and deliver such instruments to any other party hereto, in addition to the
actions and instruments specifically provided for herein, as may be reasonably
requested or required to effectuate the purpose or provisions of this Agreement
or to confirm or perfect any transaction described or contemplated herein.
Section 8.02 Waiver. Any waiver by any party of any provision of this
Agreement or any right, remedy or option hereunder shall only prevent and estop
such party from thereafter enforcing such provision, right, remedy or option if
such waiver is given in writing and only as to the specific instance and for the
specific purpose for which such waiver was given. The failure or refusal of any
party hereto to insist in any one or more instances, or in a course of dealing,
upon the strict performance of any of the terms or provisions of this Agreement
by any party hereto or the partial exercise of any right, remedy or option
hereunder shall not be construed as a waiver or relinquishment of any such term
or provision, but the same shall continue in full force and effect.
Section 8.03 Amendments; Waivers. No amendment, modification, waiver or
supplement to this Agreement or any provision of this Agreement shall in any
event be effective unless the same shall have been made or consented to in
writing by each of the parties hereto and each Rating Agency shall have
confirmed in writing that such amendment will not cause a reduction or
withdrawal of its rating on the Notes;
37
notwithstanding the foregoing, for so long as Financial Security shall be the
Controlling Party, amendments, modifications, waivers or supplements hereto, the
Collateral or the Spread Account or any requirement hereunder to deposit or
retain any amounts in such Spread Account or to distribute any amounts therein
as provided in Section 3.03 shall be effective if made or consented to in
writing by Financial Security, the Trust and the Collateral Agent (the consent
of which shall not be withheld or delayed with respect to any amendment that
does not adversely affect the Collateral Agent), but shall in no circumstances
require the consent of the Trustee or the Noteholders.
Section 8.04 Severability. In the event that any provision of this
Agreement or the application thereof to any party hereto or to any circumstance
or in any jurisdiction governing this Agreement shall, to any extent, be invalid
or unenforceable under any applicable statute, regulation or rule of law, then
such provision shall be deemed inoperative to the extent that it is invalid or
unenforceable and the remainder of this Agreement, and the application of any
such invalid or unenforceable provision to the parties, jurisdictions or
circumstances other than to whom or to which it is held invalid or
unenforceable, shall not be affected thereby nor shall the same affect the
validity or enforceability of any other provision of this Agreement. The parties
hereto further agree that the holding by any court of competent jurisdiction
that any remedy pursued by the Collateral Agent, or any of the Secured Parties,
hereunder is unavailable or unenforceable shall not affect in any way the
ability of the Collateral Agent or any of the Secured Parties to pursue any
other remedy available to it or them (subject, however, to the provisions of
this Agreement limiting such remedies).
Section 8.05 Nonpetition Covenant. Notwithstanding any prior termination of
this Agreement, each of the parties hereto agrees that it shall not, prior to
one year and one day after the payment in full of all the Notes and all Insurer
Secured Obligations, acquiesce, petition or otherwise invoke or cause the Trust
to invoke the process of the United States of America, any State or other
political subdivision thereof or any entity exercising executive, legislative,
judicial, regulatory or administrative functions of or pertaining to government
for the purpose of commencing or sustaining a case by or against the Trust under
a Federal or state bankruptcy, insolvency or similar law or appointing a
receiver, liquidator, assignee, trustee, custodian, sequestrator or other
similar official of the Trust or all or any part of its property or assets or
ordering the winding up or liquidation of the affairs of the Trust. The parties
agree that damages will be an inadequate remedy for breach of this covenant and
that this covenant may be specifically enforced.
Section 8.06 Notices. All notices, demands, certificates, requests and
communications hereunder ("notices") shall be in writing and shall be effective
(a) upon receipt when sent through the U.S. mails, registered or certified mail,
return receipt requested, postage prepaid, with such receipt to be effective the
date of delivery indicated on the return receipt, or (b) one Business Day after
delivery to an overnight courier, or (c) on the date personally delivered to an
Authorized Officer of the party to which sent, or (d) on the date transmitted by
legible telecopier transmission with a confirmation of receipt, in all cases
addressed to the recipient as follows:
38
(i) If to the Trust:
AmeriCredit Automobile Receivables Trust 2006-A-F
c/o Wilmington Trust Company
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000-0000
Attention: Corporate Trust Administration, as owner trustee
(ii) If to Financial Security:
Financial Security Assurance Inc.
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Senior Vice President, Surveillance
Re: Policy Number 51749-N
AmeriCredit Automobile Receivables Trust 2006-A-F
Telecopier No.: (000) 000-0000
(000) 000-0000
Confirmation: (000) 000-0000
(in each case in which notice or other communication to Financial
Security refers to a Default or a claim on the Policy or in which
failure on the part of Financial Security to respond shall be deemed
to constitute consent or acceptance, then with a copy to the attention
of the Senior Vice President Surveillance)
(iii) If to Xxxxx Fargo as Trustee or Collateral Agent:
Xxxxx Fargo Bank, National Association
MAC X0000-000
Xxxxx xxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attention: Corporate Trust Services -
Asset Backed Administration
Telecopy No.: (000) 000-0000
Confirmation: (000) 000-0000
(iv) If to Moody's:
Xxxxx'x Investors Service, Inc.
00 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: ABS Monitoring Department
39
Telecopier No.: (000) 000-0000
(v) If to Standard & Poor's:
Standard & Poor's Rating Group
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopier No.: (000) 000-0000
(vi) If to Fitch:
Xxx Xxxxx Xxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
A copy of each notice given hereunder to any party hereto shall also be given to
(without duplication) Financial Security, the Trustee, the Trust and the
Collateral Agent. Each party hereto may, by notice given in accordance herewith
to each of the other parties hereto, designate any further or different address
to which subsequent notices shall be sent.
Section 8.07 Term of this Agreement. This Agreement shall continue in
effect until the Final Termination Date. On such Final Termination Date, this
Agreement shall terminate, all obligations of the parties hereunder shall cease
and terminate and the Collateral, if any, held hereunder and not to be used or
applied in discharge of any obligations of the Trust in respect of the Secured
Obligations or otherwise under this Agreement, shall be released to and in favor
of Trust, provided that the provisions of Sections 4.06, 4.07 and 8.05 shall
survive any termination of this Agreement and the release of any Collateral upon
such termination.
Section 8.08 Assignments: Third-Party Rights; Reinsurance.
(a) This Agreement shall be a continuing obligation of the parties hereto
and shall (i) be binding upon the parties and their respective successors and
assigns, and (ii) inure to the benefit of and be enforceable by each Secured
Party and the Collateral Agent, and by their respective successors, transferees
and assigns. The Trust may not assign this Agreement, or delegate any of its
duties hereunder, without the prior written consent of the Controlling Party.
(b) Financial Security shall have the right (unless a Financial Security
Default shall have occurred and be continuing) to give participations in its
rights under this Agreement and to enter into contracts of reinsurance with
respect to the Policy and each such participant or reinsurer shall be entitled
to the benefit of any representation, warranty, covenant and obligation of each
party (other than Financial Security) hereunder as if such participant or
reinsurer was a party hereto and, subject only to such agreement regarding such
reinsurance or participation, shall have the right to enforce the obligations of
each such other party directly hereunder; provided, however, that no such
reinsurance
40
or participation agreement or arrangement shall relieve Financial Security of
its obligations hereunder, under the Transaction Documents to which it is a
party or under the such Policy. In addition, nothing contained herein shall
restrict Financial Security from assigning to any Person pursuant to any
liquidity facility or credit facility any rights of Financial Security under
this Agreement or with respect to any real or personal property or other
interests pledged to Financial Security, or in which Financial Security has a
security interest, in connection with the transactions contemplated hereby. The
terms of any such assignment or participation shall contain an express
acknowledgment by such Person of the condition of this Section and the
limitations of the rights of Financial Security hereunder.
Section 8.09 Consent of Controlling Party. In the event that the
Controlling Party's consent is required under the terms hereof or under the
terms of any Transaction Document, it is understood and agreed that, except as
otherwise provided expressly herein, the determination whether to grant or
withhold such consent shall be made solely by the Controlling Party in its sole
discretion.
Section 8.10 Trial by Jury Waived. Each of the parties hereto waives, to
the fullest extent permitted by law, any right it may have to a trial by jury in
respect of any litigation arising directly or indirectly out of, under or in
connection with this Agreement, any of the other Transaction Documents or any of
the transactions contemplated hereunder or thereunder. Each of the parties
hereto (a) certifies that no representative, agent or attorney of any other
party has represented, expressly or otherwise, that such other party would not,
in the event of litigation, seek to enforce the foregoing waiver and (b)
acknowledges that it has been induced to enter into this Agreement and the other
Transaction Documents to which it is a party, by among other things, this
waiver.
Section 8.11 Governing Law. This Agreement shall be construed in accordance
with, and this Agreement and all matters arising out of or relating in any way
to this Agreement shall be governed by the law of the State of New York.
Section 8.12 Consents to Jurisdiction. Each of the parties hereto
irrevocably submits to the jurisdiction of the United States District Court for
the Southern District of New York, any court in the state of New York located in
the city and county of New York, and any appellate court from any thereof, in
any action, suit or proceeding brought against it and related to or in
connection with this Agreement, the other Transaction Documents or the
transactions contemplated hereunder or thereunder or for recognition or
enforcement of any judgment and each of the parties hereto irrevocably and
unconditionally agrees that all claims in respect of any such suit or action or
proceeding may be heard or determined in such New York State court or, to the
extent permitted by law, in such federal court. Each of the parties hereto
agrees that a final judgment in any such action, suit or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on the judgment or
in any other manner provided by law. To the extent permitted by applicable law,
each of the parties hereby waives and agrees not to assert by way of motion, as
a defense or otherwise in any such suit, action or proceeding, any claim that it
is not personally subject to the jurisdiction of such courts, that the suit,
41
action or proceeding is brought in an inconvenient forum, that the venue of the
suit, action or proceeding is improper or that this Agreement or any of the
other Transaction Documents or the subject matter hereof or thereof may not be
litigated in or by such courts. The Trust hereby irrevocably appoints and
designates The Xxxxxxxx-Xxxx Corporation System, Inc., as its true and lawful
attorney and duly authorized agent for acceptance of service of legal process.
The Trust agrees that service of such process upon such Person shall constitute
personal service of such process upon it. Nothing contained in this Agreement
shall limit or affect the rights of any party hereto to serve process in any
other manner permitted by law or to start legal proceedings relating to any of
the Transaction Documents against the Trust or its property in the courts of any
jurisdiction.
Section 8.13 Determination of Adverse Effect. Any determination of an
adverse effect on the interest of the Secured Parties or the Noteholders shall
be made without consideration of the availability of funds under the Policy.
Section 8.14 Counterparts. This Agreement may be executed in two or more
counterparts by the parties hereto, and each such counterpart shall be
considered an original and all such counterparts shall constitute one and the
same instrument.
Section 8.15 Headings. The headings of sections and paragraphs and the
Table of Contents contained in this Agreement are provided for convenience only.
They form no part of this Agreement and shall not affect its construction or
interpretation.
Section 8.16 No Recourse. It is expressly understood and agreed by the
parties hereto that (a) this Agreement is executed and delivered by Wilmington
Trust Company, not individually or personally but solely as trustee of the
Trust, in the exercise of the powers and authority conferred and vested in it,
(b) each of the representations, undertakings and agreements herein made on the
part of the Trust is made and intended not as personal representations,
undertakings and agreements by Wilmington Trust Company but is made and intended
for the purpose of binding only the Trust, (c) nothing herein contained shall be
construed as creating any liability on Wilmington Trust Company, individually or
personally, to perform any covenant either expressed or implied contained
herein, all such liability, if any, being expressly waived by the parties hereto
and by any Person claiming by, through or under the parties hereto and (d) under
no circumstances shall Wilmington Trust Company be personally liable for the
payment of any indebtedness or expenses of the Trust or be liable for the breach
or failure of any obligation, representation, warranty or covenant made or
undertaken by the Trust under this Agreement or any other related documents.
42
IN WITNESS WHEREOF, the parties hereto have executed this Agreement, as
amended and restated, as of the date set forth on the first page hereof.
AMERICREDIT AUTOMOBILE RECEIVABLES TRUST
2006-A-F
By: WILMINGTON TRUST COMPANY, not in its
individual capacity but solely as Owner
Trustee on behalf of the Trust
By: /s/ Xxxxxxxx X. Xxxxx
------------------------------------
Name: Xxxxxxxx X. Xxxxx
Title: Vice President
FINANCIAL SECURITY ASSURANCE INC.
By: /s/ Xxxx Xxxxxxxxxxx
------------------------------------
Name: Xxxx Xxxxxxxxxxx
Title: Managing Director
XXXXX FARGO BANK, NATIONAL ASSOCIATION
as Trustee
By: /s/ Xxxxxxxx X. Xxxxxxxx
------------------------------------
Name: Xxxxxxxx X. Xxxxxxxx
Title: Vice President
XXXXX FARGO BANK, NATIONAL ASSOCIATION
as Collateral Agent
By: /s/ Xxxxxxxx X. Xxxxxxxx
------------------------------------
Name: Xxxxxxxx X. Xxxxxxxx
Title: Vice President
43
