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EXHIBIT 10.26
SECURITY AND COLLATERAL AGENT AGREEMENT
among
CREDIT SUISSE FIRST BOSTON,
NEW YORK BRANCH,
as Agent,
BANK ONE, N.A.,
as Collateral Agent
AMERICREDIT FINANCIAL SERVICES, INC.,
individually and as Servicer
and
AMERICREDIT WAREHOUSE TRUST,
as Borrower
_____________________________________
Dated as of March 31, 1999
_____________________________________
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TABLE OF CONTENTS
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Section 1. Definitions 1
Section 3. Distributions 2
Section 4. The Reserve Account and the Collateral Account; Investments 4
Section 5. Expenses 6
Section 6. Representations And Warranties Of The Collateral Agent 7
Section 7. Resignation By And Removal Of The Collateral Agent;
Successor Collateral Agent 7
Section 8. Indemnity 8
Section 9. Limitations Of Liability 8
Section 10. Term Of Agreement 9
Section 11. Notices 9
Section 12. GOVERNING LAW; VENUE; CONSENT TO JURISDICTION 9
Section 13. Assignment 10
Section 14. Counterparts 10
Section 15. Headings 10
Section 16. Third Party Beneficiaries 10
Section 17. Certain Remedies 10
Section 18. Remedies 12
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SECURITY AND COLLATERAL AGENT AGREEMENT
SECURITY AND COLLATERAL AGENT AGREEMENT dated as of March 31, 1999 among
CREDIT SUISSE FIRST BOSTON, NEW YORK BRANCH, as agent for the Lenders (in such
capacity, the "Agent"), BANK ONE, N.A., a national banking association
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(including any successor thereto, the "Collateral Agent"), AMERICREDIT WAREHOUSE
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TRUST, a Delaware business trust (the "Borrower"), and AMERICREDIT FINANCIAL
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SERVICES, INC., a Delaware corporation ("AFS"), individually and as Servicer.
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W I T N E S S E T H :
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WHEREAS, AFS and the other Sellers are the owners of certain Receivables;
WHEREAS, the Borrower desires to purchase certain of such Receivables;
WHEREAS, the Noncommitted Lenders may, or if any Noncommitted Lender elects
not to, certain Committed Lenders shall, from time to time hereafter finance the
purchase of such Receivables by making advances to the Borrower under the
Receivables Financing Agreement (as hereinafter defined) secured, inter alia, by
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such Receivables; and
WHEREAS, AFS will service such Receivables.
NOW, THEREFORE, AFS, the Borrower, the Collateral Agent and the Agent,
intending to be legally bound, hereby agree as follows:
Section 1. Definitions. For all purposes of this Agreement, the
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following terms shall have the meanings set forth below, unless the context
clearly indicates otherwise. Capitalized terms used herein but not otherwise
defined shall have the meanings set forth in the Receivables Financing
Agreement.
"Accrual Period" shall mean, with respect to any Distribution Date,
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the period from and including the previous Distribution Date (or, in the case of
the first Distribution Date, from and including the Closing Date) through and
including the day preceding such Distribution Date.
"AFS" has the meaning specified in the Preamble.
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"Agent" has the meaning specified in the Preamble.
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"Agreement" means this Security and Collateral Agent Agreement, as it
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may be amended, supplemented or otherwise modified from time to time.
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"Amount Available" means, with respect to any Distribution Date, the
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sum of (a) the amount on deposit in the Collection Account as of the end of the
preceding Collection Period and any amounts paid into the Collection Account
under any Interest Rate Hedge with respect to the Accrual Period ending on the
day preceding such Distribution Date plus (b) any investment income earned on
amounts on deposit in the Collection Account, the Collateral Account and the
Reserve Account since the prior Distribution Date (or the Closing Date in the
case of the first Distribution Date).
"Borrower" has the meaning specified in the Preamble.
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"Capped Expenses" means, at any time, costs and expenses due at such
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time (if any) to the Backup Servicer and the Collateral Agent under the
Transaction Documents not in excess of $7500 with respect to any Collection
Period.
"Collateral Agent" has the meaning specified in the Preamble.
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"Increased Costs" means collectively, any increased cost, loss or
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liability owing to the Agent and/or any other Affected Person under Article VI
of the Receivables Financing Agreement.
"Indemnity Amounts" means, collectively, all indemnity obligations and
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other amounts owing to the Agent, any Lender and/or any other Indemnified Party
under Article XVII or Section 18.4 of the Receivables Financing Agreement (to
the extent not paid by AFS) and the unreimbursed amount (if any) expended by the
Lenders under Section 8.5(b) of the Receivables Financing Agreement.
"Receivables Financing Agreement" means the Receivables Financing
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Agreement, dated as of March 31, 1999, among the Borrower, AFS, individually and
as Servicer and Custodian, each Noncommitted Lender and Committed Lender party
thereto, AmeriCredit Funding Corp., AmeriCredit Corporation of California, the
Agent, and Bank One, N.A., as Backup Servicer and Collateral Agent, as amended,
extended or otherwise modified from time to time.
Section 2. Appointment of Collateral Agent. Subject to the terms and
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conditions hereof, the Agent, on behalf of the Lenders and other Investors,
hereby appoints Bank One, N.A., as Collateral Agent hereunder and under the
Receivables Financing Agreement, and Bank One, N.A. hereby accepts such
appointment.
Section 3. Distributions.
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(a) On each Distribution Date prior to the Facility Termination Date,
the Collateral Agent shall distribute, in
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accordance with the applicable Servicer's Certificate, the Amount Available for
such Distribution Date in the following order of priority:
(i) FIRST, to the extent not previously paid by AFS or otherwise by
or on behalf of the Borrower (A) to the Servicer, the Servicing Fee
(computed at a Servicing Fee Rate not in excess of 2.00% per annum) for the
related Collection Period; (B) to the Backup Servicer and the Collateral
Agent, the Backup Servicer Fee for the related Collection Period; (C) to
the Backup Servicer and the Collateral Agent, the Capped Expenses; (D) to
the Backup Servicer, Transition Costs (if any) due to the Backup Servicer
under the Transaction Documents; and (E) to the Agent, on behalf of itself
and the Lenders and Liquidity Providers, the Fees payable on such
Distribution Date pursuant to the Fee Letter (and any Fees due and not paid
on a prior Distribution Date);
(ii) SECOND, to the Agent, on behalf of the Lenders, an amount equal
to Yield on the Advances accrued during the Accrual Period with respect to
such Distribution Date (and any Yield with respect to any prior Accrual
Period to the extent not paid pursuant to this Section 2(a)(ii) on a prior
Distribution Date);
(iii) THIRD, to the Agent, on behalf of the Lenders, the principal
amount of Advances which are to be paid or prepaid to the extent then due
and owing including, without limitation, any amount of such principal
required to prevent the existence of a Borrowing Base Deficiency;
(iv) FOURTH, to the Reserve Account, until the amount on deposit
therein is equal to the Required Reserve Account Amount;
(v) FIFTH, to the Agent, for the benefit of the Affected Persons,
any Increased Costs then due and owing, and, to the extent not previously
paid by or on behalf of the Borrower, to each Indemnified Party, any
Indemnity Amounts then due and owing to each such Indemnified Party;
(vi) SIXTH, to the extent not previously paid pursuant to clause
FIRST above, (A) to the Agent, any costs and expenses due to the Agent
under the Transaction Documents; and (B) to the Backup Servicer and
Collateral Agent, any costs and expenses due to the Backup Servicer and
Collateral Agent under the Transaction Documents; and
(vii) SEVENTH, to the Borrower, the remaining portion of the Amount
Available.
(b) On each Distribution Date on or after the Facility
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Termination Date, the Collateral Agent shall distribute, in accordance with the
applicable Servicer's Certificate, or, if not delivered, upon the Agent's
direction, the Amount Available for such Distribution Date and all amounts, if
any, on deposit in the Reserve Account and the Collateral Account in the
following order of priority:
(i) FIRST, to the extent not previously paid by AFS or otherwise by
or on behalf of the Borrower (A) to the Servicer, the Servicing Fee
(computed at a Servicing Fee Rate not in excess of 2.00% per annum) for the
related Collection Period; (B) to the Backup Servicer and the Collateral
Agent, the Backup Servicer Fee for the related Collection Period; (C) to
the Backup Servicer and the Collateral Agent, the Capped Expenses; (D) to
the Backup Servicer, Transition Costs (if any) due to the Backup Servicer
under the Transaction Documents; and (E) to the Agent, on behalf of itself,
the Lenders and the Liquidity Providers, any Fees payable on such
Distribution Date pursuant to the Fee Letter (and any Fees due and not paid
on a prior Distribution Date);
(ii) SECOND, to the Agent on behalf of the Lenders, an amount equal
to Yield on the Advances accrued during the Accrual Period with respect to
such Distribution Date (and any Yield with respect to any prior Accrual
Period to the extent not paid on a prior Distribution Date);
(iii) THIRD, to the Agent, on behalf of the Lenders, the principal
amount of all outstanding Advances;
(iv) FOURTH, to the Agent, for the benefit of the Affected Persons,
any Increased Costs then due and owing, and, to the extent not previously
paid by or on behalf of the Borrower, to each Indemnified Party, any
Indemnity Amounts then due and owing to each such Indemnified Party;
(v) FIFTH, to the extent not previously paid pursuant to clause
FIRST above, (A) to the Agent, any costs and expenses due to the Agent
under the Transaction Documents; and (B) to the Backup Servicer and
Collateral Agent, any costs and expenses due to the Backup Servicer and
Collateral Agent under the Transaction Documents; and
(vi) SIXTH, to the Borrower, the remaining portion of the amount to
be distributed.
(c) On each Interim Distribution Date, the Collateral Agent shall,
at the direction of the Servicer or the Agent, withdraw from the Collection
Account and distribute the following amounts in the following order of priority:
(i) FIRST, to the Agent, on behalf of the Lenders,
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Yield in respect of any Advances being paid or prepaid on such date and, on
the last day of any Fixed Period for any Advance, Yield due and unpaid with
respect to such Advance; and
(ii) SECOND, to the Agent, on behalf of the Lenders, an amount equal
to the Advances being paid or prepaid on such date.
Section 4. The Reserve Account and the Collateral Account;
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Investments.
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(a) If, on any Distribution Date, the Amount Available is less than
the aggregate amount required to be distributed pursuant to clauses (i), (ii),
(iii), and (v) of Section 3(a), the Collateral Agent shall withdraw (or, if the
Reserve Account shall not at such time be maintained by the Collateral Agent,
the Collateral Agent shall direct the holder of the Reserve Account to withdraw)
the amount of such deficiency, up to the amount available in the Reserve
Account, from the Reserve Account and apply such amount in the order of priority
and in the manner set forth in such clauses of Section 3(a).
(b) If, on any Distribution Date, the Amount Available plus the
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amount to be withdrawn from the Reserve Account pursuant to Section 4(a) on such
Distribution Date is less than the aggregate amount required to be distributed
pursuant to clauses (i), (ii), (iii), (iv), and (v) of Section 3(a), the
Collateral Agent shall withdraw (or, if the Collateral Account shall not at such
time be maintained by the Collateral Agent, the Collateral Agent shall direct
the holder of the Collateral Account to withdraw) the amount of such deficiency,
up to the amount available in the Collateral Account, from the Collateral
Account and apply such amount in the order of priority and in the manner set
forth in such clauses of Section 3(a).
(c) If, on any Interim Distribution Date, the amount withdrawn from
the Collection Account is less than the aggregate amount required to be
distributed pursuant to clauses (i) and (ii) of Section 3(c), the Collateral
Agent shall withdraw (or, if the Reserve Account shall not at such time be
maintained by the Collateral Agent, the Collateral Agent shall direct the holder
of the Reserve Account to withdraw) the amount of such deficiency, up to the
amount available in the Reserve Account, from the Reserve Account and apply such
amount in the order of priority and in the manner set forth in such clauses of
Section 3(c).
(d) If, on any Interim Distribution Date, the amount withdrawn from
the Collection Account plus the amount to be withdrawn from the Reserve Account
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pursuant to Section 4(c) on such Interim Distribution Date is less than the
aggregate amount required to be distributed pursuant to clauses (i) and (ii) of
Section 3(c), the Collateral Agent shall withdraw (or, if the
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Collateral Account shall not at such time be maintained by the Collateral Agent,
the Collateral Agent shall direct the holder of the Collateral Account to
withdraw) the amount of such deficiency, up to the amount available in the
Collateral Account, from the Collateral Account and apply such amount in the
order of priority and in the manner set forth in such clauses of Section 3(c).
(e) On the Facility Termination Date (if a Distribution Date) or
otherwise on the first Distribution Date following the Facility Termination
Date, the Collateral Agent shall withdraw (or direct the holder of the
applicable account to withdraw) all amounts on deposit in the Reserve Account
and the Collateral Account and apply such amount as provided in Section 3(b) and
at such time the Reserve Account and the Collateral Account shall be closed.
(f) On each Distribution Date prior to the Facility Termination Date
and based solely on the Servicer's Certificate for such Distribution Date, the
Collateral Agent shall withdraw from the Reserve Account the amount on deposit
in the Reserve Account in excess of the Required Reserve Account Amount (after
giving effect to all distributions to be made on such Distribution Date pursuant
to Section 3(a), and any withdrawals to be made from the Reserve Account
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pursuant to paragraph (a) of this Section 4) and distribute such amount to the
Borrower or as it may direct.
(g) On each Distribution Date prior to the Facility Termination Date
(after giving effect to the distributions to be made on such Distribution Date
pursuant to Section 3(a) and any withdrawals to be made from the Collateral
Account pursuant to paragraph (b) of this Section 4), the Borrower shall be
entitled to direct the Collateral Agent (with a copy of such directions to be
delivered to the Agent) to withdraw and pay to the Borrower (or as it may
direct), any and all amounts on deposit in the Collateral Account so long as
after giving effect to such withdrawal no Borrowing Base Deficiency, Facility
Termination Event or Unmatured Facility Termination Event shall occur or be
continuing.
(h) All or a portion of the amounts on deposit in the Collection
Account, the Collateral Account and the Reserve Account shall be invested and
reinvested by the Collateral Agent at the direction of the Servicer in one or
more Permitted Investments. No such investment shall mature later than the day
prior to the next occurring Distribution Date. The amounts held in the
Collection Account, the Collateral Account and the Reserve Account on the
Business Day prior to each Distribution Date shall be invested by the Collateral
Agent in overnight or next-day funds in such Permitted Investments reasonably
available to the Collateral Agent as may be acceptable to the Servicer (which
shall initially be the Collateral Agent's U.S. Treasury
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Securities Money Market Fund and, from time to time, shall include such other
proprietary Permitted Investments of the Collateral Agent) for the period of
time from the Business Day prior to the Distribution Date until such
Distribution Date. All income or other gains from investment of moneys on
deposit in any such account shall be deposited by the Collateral Agent in the
applicable account immediately upon receipt. If any amounts are needed for
disbursement from the Collection Account, the Collateral Account or the Reserve
Account and sufficient uninvested funds are not available therein to make such
disbursement, the Collateral Agent shall cause to be sold or otherwise converted
to cash a sufficient amount of the investments in such account to make such
disbursement upon the direction of the Servicer or, if the Servicer shall fail
to give such direction, the Agent.
(i) If at any time the Collection Account, the Collateral Account or
the Reserve Account ceases to be an Eligible Account, the Agent may direct the
Collateral Agent to transfer such account to another institution such that such
account shall meet the requirements of an Eligible Account.
Section 5. Expenses. It is understood that the Collateral Agent
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shall be entitled to receive reimbursement for costs and expenses and such
reimbursement obligation shall be payable by the Borrower to the extent funds
are available therefor under Section 3 hereof and otherwise by AFS.
Section 6. Representations And Warranties Of The Collateral Agent.
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The Collateral Agent represents and warrants as of the date hereof that:
(a) It is a national banking association, validly existing and in
good standing under the laws of United States of America;
(b) It has full power, authority and legal right to execute, deliver
and perform this Agreement, the Custodian Agreement, the Lockbox Agreement and
the Receivables Financing Agreement and has taken all necessary action to
authorize the execution, delivery and performance by it of this Agreement, the
Custodian Agreement, the Lockbox Agreement and the Receivables Financing
Agreement;
(c) The execution, delivery and performance by it of this Agreement,
the Custodian Agreement, the Lockbox Agreement and the Receivables Financing
Agreement do not violate (i) any provision of any law or regulation governing
its banking and trust powers or any order, writ, judgment, or decree of any
court, arbitrator, or governmental authority applicable to it or any of its
assets or (ii) any provision of its corporate charter or by-laws;
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(d) The execution, delivery and performance by it of this Agreement,
the Custodian Agreement, the Lockbox Agreement and the Receivables Financing
Agreement do not require the authorization, consent or approval of, the giving
of notice to, the filing or registration with, or the taking of any other action
in respect of, any governmental authority or agency regulating its banking and
corporate trust activities; and
(e) This Agreement, the Custodian Agreement, the Lockbox Agreement
and the Receivables Financing Agreement have been duly executed and delivered by
it and each constitutes its legal, valid and binding agreement, enforceable in
accordance with its terms, except as enforceability may be limited by
bankruptcy, insolvency reorganization or other similar laws affecting the
enforcement of creditors' rights generally and by general principles of equity.
Section 7. Resignation By And Removal Of The Collateral Agent;
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Successor Collateral Agent.
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(a) The Collateral Agent may at any time resign and terminate its
obligations under this Agreement upon at least 60 days prior written notice to
the Agent and AFS. No resignation shall be effective until a successor
collateral agent shall have been appointed and accepted its appointment.
Promptly after receipt of notice of the Collateral Agent's proposed resignation,
the Agent shall appoint, by written instrument, a successor collateral agent and
notify AFS thereof. If a successor collateral agent is not appointed in
accordance with the foregoing procedures, the Collateral Agent may petition a
court of competent jurisdiction to appoint a successor collateral agent. One (1)
original counterpart of such instrument of appointment shall be delivered to
each of the Agent, the Collateral Agent, AFS and the successor collateral agent.
(b) The Agent, upon at least 60 days written notice to the Collateral
Agent (or, if such removal is for cause, such 60 day period may be decreased to
no less than three Business Days by the Agent in its sole discretion), may
remove and discharge the Collateral Agent (or any successor collateral agent
thereafter appointed) from the performance of its obligations under this
Agreement. A copy of such notice shall be delivered to each other party hereto.
Promptly after the giving of notice of removal of the Collateral Agent, the
Agent shall appoint, by written instrument, a successor collateral agent and
notify AFS thereof. One (1) original counterpart of such instrument of
appointment shall be delivered to each of the Agent, the Collateral Agent, AFS
and the successor collateral agent.
(c) In the event of any such resignation or removal, the Collateral
Agent shall promptly transfer to the successor collateral agent, as directed in
writing by the Agent, all accounts, funds and investments being administered
under this
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Agreement and shall cooperate with the Agent, AFS and the successor collateral
agent to facilitate the continued perfection and priority of the Lien granted
for the benefit of the Secured Parties in the Borrower Collateral.
Section 8. Indemnity. The Borrower (to the extent of funds available
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therefor under Section 3 of this Agreement) and AFS agree, jointly and
severally, to indemnify and hold harmless the Collateral Agent and its
directors, officers, agents and employees against any and all claims, damages,
losses, liabilities or expenses (including, but not limited to, reasonable
attorneys' fees, court costs and costs of investigation) of any kind or nature
whatsoever arising out of or in connection with this Agreement and the
Transaction Documents that may be imposed upon, incurred by or asserted against
the Collateral Agent; provided, however, that this Section 8 shall not relieve
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Collateral Agent from liability for its willful misconduct or gross negligence.
The provisions of this Section 8 shall survive the resignation or removal of the
Collateral Agent or any successor Collateral Agent and the termination of this
Agreement.
Section 9. Limitations Of Liability.
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(a) The Collateral Agent shall not be liable to the Borrower, the
Servicer, the Agent, any Lender, the Investors or any other Person with respect
to any action taken or not taken by it in good faith in the performance of its
obligations under this Agreement. The obligations of the Collateral Agent shall
be determined solely by the express provisions of this Agreement. No
representation, warranty, covenant, agreement, obligation or duty of the
Collateral Agent shall be implied with respect to this Agreement or the
Collateral Agent's services hereunder.
(b) The Collateral Agent may rely, and shall be protected in acting
or refraining to act, upon and need not verify the accuracy of (i) any oral
instructions from any persons the Collateral Agent believes to be authorized to
give such instructions, who shall only be, with respect to the Servicer, the
Borrower and the Agent, persons the Collateral Agent believes in good faith to
be duly authorized officers thereof, and (ii) any written instruction, notice,
order, request, direction, certificate, opinion or other instrument or document
believed by the Collateral Agent to be genuine and to have been signed and
presented by the proper party or parties.
(c) The Collateral Agent may consult with counsel nationally
recognized in the area of commercial transactions with regard to legal questions
arising out of or in connection with this Agreement, and the advice or opinion
of such counsel shall be full and complete authorization and protection in
respect of any action taken, omitted or suffered by the Collateral Agent in
reasonable reliance, in good faith, and in accordance therewith
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provided, however, that if the Agent gives instructions to the Collateral Agent
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provides an opinion of counsel selected by them, which in either case
conflicts with any such advice or opinion of counsel, then the Collateral Agent
shall follow such instructions of the Agent (unless such instructions violate
the express terms of this Agreement or violate applicable law) or such opinion
of counsel selected by the Agent, and shall be fully protected in acting or
refraining to act thereon.
(d) No provision of this Agreement shall require the Collateral
Agent to expend or risk its own funds or otherwise incur financial liability in
the performance of its duties under this Agreement if it shall have reasonable
grounds for believing that repayment of such funds or adequate indemnity is not
reasonably assured to it.
Section 10. Term Of Agreement. This Agreement shall be terminated
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upon the final payment of all Obligations of the Borrower under the Transaction
Documents and the termination of any commitment of the Lenders under the
Transaction Documents.
Section 11. Notices. All demands, notices and communications
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relating to this Agreement shall be in writing and shall be deemed to have been
duly given when received by the other party or parties at the address shown in
the Receivables Financing Agreement, whether by personal delivery, express
delivery or facsimile, or such other address as may hereafter be furnished to
the other party or parties by like notice. Any such demand, notice or
communication hereunder shall be deemed to have been received on the date
delivered to or received at the premises of the addressee.
Section 12. GOVERNING LAW; VENUE; CONSENT TO JURISDICTION. (A) THIS
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AGREEMENT SHALL BE A CONTRACT MADE UNDER AND GOVERNED BY THE INTERNAL LAW OF
THE STATE OF NEW YORK, WITHOUT REGARD TO ANY OTHERWISE APPLICABLE CONFLICT OF
LAW PRINCIPLES THEREOF (OTHER THAN SECTION 5-1401 OF THE NEW YORK GENERAL
OBLIGATIONS LAW).
(B) VENUE FOR ANY ACTION BROUGHT UNDER THIS AGREEMENT MAY BE IN
ANY NEW YORK STATE COURT OR FEDERAL DISTRICT COURT SITTING IN NEW YORK, NEW
YORK. EACH PARTY TO THIS AGREEMENT HEREBY CONSENTS TO THE JURISDICTION OF SUCH
COURT.
Section 13. Assignment. Except as expressly permitted herein, no
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party to this Agreement may assign its rights or delegate its obligations under
this Agreement without the express written consent of the other parties.
Section 14. Counterparts. For the purpose of facilitating the
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execution of this Agreement and for other purposes, this Agreement may be
executed simultaneously in any number of counterparts, each of which shall be
deemed to be an
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original, and together shall constitute and be one and the same instrument.
Section 15. Headings. The section headings are not part of this
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Agreement and shall not be used in its interpretation.
Section 16. Third Party Beneficiaries. It is hereby agreed by the
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parties hereto that, the Lenders and the other Secured Parties are, and are
intended to be, third party beneficiaries under this Agreement.
Section 17. Certain Remedies.
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(a) The Collateral Agent may, in its discretion (with the consent of
the Agent), and shall, at the direction of the Agent, proceed to protect and
enforce its rights and the rights of the Secured Parties by such appropriate
proceedings as the Collateral Agent or the Agent shall deem most effective to
protect and enforce any such rights, whether for the specific enforcement of any
covenant or agreement in any Transaction Document or in and of the exercise of
any power granted herein, or to enforce any other proper remedy or legal or
equitable right vested in the Collateral Agent by any Transaction Document or by
law.
(b) In case there shall be pending, relative to the Borrower or any
other obligor upon the Notes or any Person having or claiming an ownership
interest in the Borrower Collateral, proceedings under the Bankruptcy Code or
any other applicable federal or state bankruptcy, insolvency or other similar
law, or in case a receiver, assignee or trustee in bankruptcy or reorganization,
liquidator, sequestrator or similar official shall have been appointed for or
taken possession of the Borrower or its property or such other obligor or
Person, or in case of any other comparable judicial proceedings relative to the
Borrower or other obligor upon the Notes, or to the creditors of property of the
Borrower or such other obligor, the Collateral Agent, irrespective of whether
the principal of any Notes shall their be due and payable as therein expressed
or by declaration or otherwise and irrespective of whether the Collateral Agent
shall have made any demand pursuant to the provisions of this Section, shall be
entitled and empowered, by intervention in such proceedings or otherwise:
(i) to file and prove a claim or claims for the whole amount of
principal and Yield owing and unpaid in respect of the Notes and to file
such other papers or documents as may be necessary or advisable in order to
have the claims of the Collateral Agent (including any claim for
reimbursement of all expenses and liabilities incurred, and all advances,
if any, made, by the Collateral Agent and each predecessor Collateral
Agent, except as a result of negligence, bad
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faith or wilful misconduct) and of each of the other Secured Parties
allowed in such proceedings;
(ii) unless prohibited by applicable law and regulations, to vote
(with the consent of the Agent) on behalf of the holders of the Notes in
any election of a trustee, a standby trustee or person performing similar
functions in any such proceedings;
(ii) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute all amounts received with
respect to the claims of the Secured Parties on their behalf; and
(iv) to file such proofs of claim and other papers or documents as
may be necessary or advisable in order to have the claims of the Collateral
Agent or the Secured Parties allowed in any judicial proceedings relative
to the Borrower, its creditors and its property;
and any trustee, receiver, liquidator, custodian or other similar official in
any such proceeding is hereby authorized by each of such Secured Parties to make
payments to the Collateral Agent, and, in the event that the Collateral Agent
and the Agent shall consent, to the making of payments directly to such Secured
Parties, to pay to the Collateral Agent such amounts as shall be sufficient to
cover all reasonable expenses and liabilities incurred, and all advances made,
by the Collateral Agent and each predecessor Collateral Agent except as a result
of negligence, bad faith or wilful misconduct.
(c) Nothing herein contained shall be deemed to authorize the
Collateral Agent to authorize or consent to or vote for or accept or adopt on
behalf of any Lender or other Secured Party any plan of reorganization,
arrangement, adjustment or composition affecting the Notes or the rights of any
holder thereof or to authorize the Collateral Agent to vote in respect of the
claim of any Secured Party in any such proceeding except, as aforesaid, to vote
for the election of a trustee in bankruptcy or similar person.
(d) All rights of action and of asserting claims under the
Transaction Documents, may be enforced by the Collateral Agent without the
possession of any of the Notes or the production thereof in any trial or other
proceedings relative thereto, and any such action or proceedings instituted by
the Collateral Agent shall be brought in its own name as Collateral Agent, and
any recovery of judgment, subject to the payment of the reasonable expenses,
disbursements and compensation of the Collateral Agent, each predecessor
Collateral Agent and their respective agents and attorneys, shall be for the
ratable benefit of the holders of the Notes and other Secured Parties.
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(e) In any proceedings brought by the Collateral Agent to enforce
the Liens under the Transaction Documents (and also any proceedings involving
the interpretation of any provision of any Transaction Document), the Collateral
Agent shall be held to represent all the Secured Parties, and it shall not be
necessary to make any Secured Party a party to any such proceedings.
Section 18. Remedies. The Collateral Agent may (with the consent of
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the Agent), or the Collateral Agent shall, at the direction of the Agent, also
do one or more of the following (subject to Section 9):
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(a) institute proceedings in its own name and on behalf of the
Secured Parties as Collateral Agent for the collection of all amounts then
payable on the Notes or under the Receivables Financing Agreement and Fee Letter
with respect thereto, whether by declaration or otherwise, enforce any judgment
obtained, and collect from the Borrower and any other obligor upon such Notes
moneys adjudged due;
(b) institute proceedings from time to time for the complete or
partial foreclosure upon the Borrower Collateral;
(c) exercise any remedies of a secured party under the UCC and take
any other appropriate action to protect and enforce the right and remedies of
the Collateral Agent and the Secured Parties; and
(d) sell the Borrower Collateral or any portion thereof or rights or
interest therein, at one or more public or private sales called and conducted in
any manner permitted by law.
Section 19. Limitation on Liability. It is expressly understood and
-----------------------
agreed by the parties hereto that (a) this Agreement is executed and delivered
by Bankers Trust (Delaware), not individually or personally but solely as Trust
Trustee of the Borrower, in the exercise of the powers and authority conferred
and vested in it, (b) each of the representations, undertakings and agreements
herein made on the part of the Borrower is made and intended not as personal
representations, undertakings and agreements by Bankers Trust (Delaware) but is
made and intended for the purpose for binding only the Borrower, (c) nothing
herein contained shall be construed as creating any liability on Bankers Trust
(Delaware), individually or personally, to perform any covenant either expressed
or implied contained herein, all such liability, if any, being expressly waived
by the parties hereto and by any Person claiming by, through or under the
parties hereto and (d) under no circumstances shall Bankers Trust (Delaware) be
personally liable for the payment of any indebtedness or expenses of the
Borrower or be liable for the breach or failure of any obligation,
representation, warranty or covenant made or undertaken by the Borrower under
this Agreement
Page 16
or any other related documents.
[Signature Page Follows]
Page 17
IN WITNESS WHEREOF, the parties hereto have caused their duly
authorized representatives to hereunto set their hand as of the day and year
first above written.
CREDIT SUISSE FIRST BOSTON,
NEW YORK BRANCH, as Agent
By: /s/
-------------------------------
Name:
Title:
By: /s/
-------------------------------
Name:
Title:
AMERICREDIT WAREHOUSE TRUST
By: Bankers Trust (Delaware),
not in its individual capacity
but solely as Trustee
By: /s/
-------------------------------
Name:
Title:
AMERICREDIT FINANCIAL SERVICES, INC.
By: /s/
-------------------------------
Name:
Title:
BANK ONE, N.A., as Collateral Agent
By: /s/
-------------------------------
Name:
Title:
[Signature Page to Security Agreement]