EXHIBIT 10.54
EXECUTION COPY
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MASTER COLLATERAL AND INTERCREDITOR AGREEMENT
among
DEUTSCHE BANK TRUST COMPANY AMERICAS,
as Revolver Collateral Agent,
DEUTSCHE BANK TRUST COMPANY AMERICAS,
as Revolver Administrative Agent,
THE FACILITY REPRESENTATIVES FROM TIME TO TIME PARTY HERETO,
DEUTSCHE BANK TRUST COMPANY AMERICAS,
as Master Collateral Agent
AFS FUNDING CORP.,
and
AFS SENSUB CORP.
as Borrowers
and
AMERICREDIT FINANCIAL SERVICES, INC.,
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Dated as of August 15, 2002
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MASTER COLLATERAL AND INTERCREDITOR AGREEMENT
MASTER COLLATERAL AND INTERCREDITOR AGREEMENT dated as of August 15,
2002 among DEUTSCHE BANK TRUST COMPANY AMERICAS, a New York banking
organization, as collateral agent for the lenders party to the Credit Agreement
referred to below (together with its successors in such capacity, the "Revolver
Collateral Agent"), DEUTSCHE BANK TRUST COMPANY AMERICAS, as administrative
agent for the lenders party to the Credit Agreement referred to below (together
with its successors in such capacity, the "Revolver Administrative Agent"), the
financial institutions from time to time party hereto as Facility
Representatives (as defined below), DEUTSCHE BANK TRUST COMPANY AMERICAS, a New
York banking organization (including any successor thereto, the "Master
Collateral Agent"), AFS FUNDING CORP., a Nevada corporation ("AFS Funding") and
AFS SENSUB CORP., a Nevada corporation (together with AFS Funding, each, a
"Borrower" and collectively, the "Borrowers"), and AMERICREDIT FINANCIAL
SERVICES, INC., a Delaware corporation ("ACFS").
W I T N E S S E T H :
WHEREAS, the Borrowers have sold and contemplate selling, from time to
time, pools of receivables to various trusts which have issued or may issue
various series of notes or certificates (each a "Series") which will be repaid
from the proceeds of, or represent an interest in, such pools of receivables;
WHEREAS, the Borrowers have entered into a Credit Agreement, dated as of
August 15, 2002 (as from time to time amended, supplemented or otherwise
modified, the "Revolving Credit Agreement"), with certain financial institutions
and commercial paper conduits as lenders and agents, the Revolver Administrative
Agent, and the Revolver Collateral Agent;
WHEREAS, the revolving line of credit to the Borrowers under the Credit
Agreement will be secured by certain securities of various Series rated at least
Ba2 by ▇▇▇▇▇'▇ and BB by S & P;
WHEREAS, the Borrowers wish to provide additional collateral for the
obligations outstanding under the Revolving Credit Agreement pursuant to the
terms hereof;
WHEREAS, from time to time, with respect to Series to be issued in the
future, the Borrowers intend to enter into agreements with certain parties to
provide credit enhancement for such Series in the form of reinsurance, cash
collateral account loans, letters of credit or other means;
WHEREAS, the Borrowers may wish to provide additional collateral to the
providers of such credit enhancement pursuant to the terms hereof;
WHEREAS, the lenders under the Revolving Credit Agreement and such
credit enhancement providers wish to have pari passu interests in the collateral
pledged and assigned
hereunder to the extent set forth herein;
WHEREAS, the Borrowers may from time to time issue promissory notes
secured, on a subordinated basis to the extent set forth herein, by the
collateral pledged and assigned herein;
WHEREAS, ACFS or an Affiliate of ACFS will service each Series.
NOW, THEREFORE, ACFS, the Borrowers, the Master Collateral Agent, the
Revolver Administrative Agent, the other Facility Representatives and the
Revolver Collateral Agent, intending to be legally bound, hereby agree as
follows:
Section 1 Definitions. For all purposes of this Agreement,
the following terms shall have the meanings set forth below and the following
terms which are defined in the Uniform Commercial Code in effect in the State of
New York from time to time are used herein as so defined: Accounts, Chattel
Paper, Documents, Equipment, Goods, General Intangibles, Instruments, Investment
Property and Proceeds.
"ACFS" has the meaning specified in the Preamble.
"Account Collateral" has the meaning set forth in Section 3.
"Adverse Claim" has the meaning set forth in Section 8-102(a)(1)
of Article 8.
"AFS Funding" has the meaning specified in the Preamble.
"AFSFT Class A Certificate" means the Class A Certificate issued
pursuant to the AFSFT Trust Agreement.
"AFSFT Class A Certificate Collateral" has the meaning specified
in Section 3.
"AFSFT Trust Agreement" means the Second Amended and Restated
Trust Agreement, dated as of August 15, 2002, between AFS Funding and Deutsche
Bank Trust Company Delaware as successor in interest to Bankers Trust
(Delaware), as Owner Trustee, as amended, supplemented or otherwise modified
from time to time.
"Agreement" means this Master Collateral and Intercreditor
Agreement, as it may be amended, supplemented or otherwise modified from time to
time.
"Article 8" means UCC, Revised Article 8, Investment Securities
(with conforming and miscellaneous amendments to Articles 1, 3, 4, 5, 9 and 10),
1994 Official Text, as adopted by the American Law Institute and the National
Conference of Commissioners on Uniform State Laws. Unless the context requires
otherwise, "Article 8" means such version in the form in which it is adopted in
the applicable jurisdiction.
"Available Funds" has the meaning specified in Section 6.
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"Borrowers" has the meaning specified in the Preamble.
"Borrower Agreements" has the meaning set forth in Section 4.
"Capped Expenses" means, at any time, fees, costs and expenses
due at such time (if any) to the Master Collateral Agent hereunder not in excess
of $7,500 with respect to any Distribution Date.
"Certificated Security" has the meaning set forth in Section
8-102(a)(4) of Article 8.
"Clearing Corporation" has the meaning set forth in Section
8-102(a)(5) of Article 8.
"Clearing Corporation Security" means a "Security" (as defined
in Section 8-102(a)(15) of Article 8) that is in the physical possession of, or
registered in the name of, a Clearing Corporation or its nominee.
"Collateral" has the meaning set forth in Section 3.
"Collateral Account" has the meaning set forth in Section 7.
"Collection Action" means: (a) to demand, ▇▇▇ for, take or
receive from or on behalf of the Borrowers (or either of them) or any guarantor
of the Junior Debt, by set-off or in any other manner, the whole or any part of
any moneys which may now or hereafter be owing by the Borrowers (or either of
them) or any such guarantor with respect to the Junior Debt, provided, however,
that the Junior Creditors may take and receive all payments permitted to be made
pursuant to Section 6 of this Agreement; (b) to initiate or participate with
others in any suit, action or proceeding against the Borrowers or any such
guarantor to (i) enforce payment of or to collect the whole or any part of the
Junior Debt or (ii) commence judicial enforcement of any of the rights and
remedies under any of the Junior Facility Agreements or applicable law with
respect to any of the Junior Debt; (c) to accelerate any Junior Debt; (d) to
cause the Borrowers (or either of them) or any such guarantor to honor any
purchase, redemption or mandatory prepayment obligation under any Junior
Facility Agreement; or (e) to take any action to realize upon any of the
property or assets of the Borrowers (or either of them) or such guarantor or to
exercise any other right or remedy with respect to thereto.
"Control": with respect to any Federal Book Entry Security, the
Master Collateral Agent shall have obtained control if:
(i) the Master Collateral Agent is a participant in the book
entry system maintained by the Federal Reserve Bank that is acting as
fiscal agent for the issuer of such Federal Book Entry Security, and
such Federal Reserve Bank has indicated by book entry that such Federal
Book Entry Security has been credited to the Master Collateral
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Agent's securities account in such book entry system; or
(ii) the Master Collateral Agent is registered solely in its
name on the records of a Securities Intermediary as the person having a
Security Entitlement in respect of such Federal Book Entry Security
against such Securities Intermediary; and (b) the Securities
Intermediary is a participant in the book entry system maintained by the
Federal Reserve Bank that is acting as fiscal agent for the issuer of
such Federal Book Entry Security; and (c) such Federal Reserve Bank has
indicated by book entry that such Federal Book Entry Security has been
credited to the Securities Intermediary's securities account in such
book entry system.
"Default" has the meaning set forth in Section 5.
"Delivery": when used with respect to Account Collateral,
"Delivery" means:
(i) with respect to Physical Property, transfer thereof to
the Master Collateral Agent or its nominee or custodian by physical
delivery to the Master Collateral Agent or its nominee or custodian
endorsed to, or registered in the name of, the Master Collateral Agent
or its nominee or custodian or endorsed in blank;
(ii) with respect to a Certificated Security, transfer of
such Certificated Security to the Master Collateral Agent or its nominee
or custodian by physical delivery to the Master Collateral Agent or its
nominee or custodian, endorsed to, or registered in the name of, the
Master Collateral Agent or its nominee or custodian or endorsed in
blank; and
(iii) with respect to any such Account Collateral that
constitutes an Uncertificated Security (including any investments in
money market mutual funds, but excluding any Federal Book Entry
Security), (A) registration of the Master Collateral Agent as the
registered owner by the issuer, or (B) satisfaction of the requirements
for obtaining "control" pursuant to Section 8-106(c)(2) of Article 8.
"Designated FSA Series" means Series 1998-D, Series 1999-A,
Series 1999-B, Series 1999-C, Series 1999-D, Series 2000-A, Series 2000-B,
Series 2000-C, Series 2000-D, Series 2001-A, Series 2001-B, Series 2001-C,
Series 2001-D, Series 2002-A, and Series 2002-B, and each FSA Series as to which
the conditions set forth below have been satisfied:
(i) the original certificate of beneficial interest in the
Underlying Trust for such Series is in the possession of AFS Funding
Trust and is registered in the name of AFS Funding Trust, and the Master
Collateral Agent shall have received a certificate of ACFS stating that
AFS Funding Trust has received and has possession of such certificate,
and there shall be no other security interests or Liens on such
certificate;
(ii) ACFS shall have delivered a certificate to the Master
Collateral Agent (with a
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copy to each Agent) certifying that each of the relevant Series
Transaction Documents is in full force and effect, no party to any such
document is in default of its obligations thereunder, there is otherwise
no default, event which with the passage of time or the giving of notice
or both would constitute a default, servicer default, event which with
the passage of time or the giving of notice or both would constitute a
servicer default, trigger event or like occurrence in the Underlying
Transactions, and all of the representations and warranties of the
Borrowers set forth in such Series Transaction Documents are true and
correct;
(iii) The Master Collateral Agent shall have received a
certificate of the Borrowers or ACFS stating that ACFS is the servicer
for such Series;
(iv) At least four Business Days prior to the date the cash
flows from such Series will initially be included in the calculation of
the Senior Borrowing Base, ACFS shall have provided to the Master
Collateral Agent (with a copy to each Facility Representative and Agent)
a certificate certifying the information with respect to such Series
described on Annex 1;
(v) The Master Collateral Agent shall have received an
irrevocable letter of direction from AFS Funding and AFS Funding Trust
to the trustee party to the related supplement to the Spread Account
Agreement instructing such trustee to pay all amounts otherwise payable
to AFS Funding or AFS Funding Trust to the Master Collateral Agent,
which letter shall have been acknowledged and agreed to by such trustee;
(vi) The Master Collateral Agent shall have received
certified copies of requests for information or copies (or a similar
search report certified by a party acceptable to the Master Collateral
Agent), dated a date reasonably near to the date on which the cash flows
from such Series will initially be included in the calculation of the
Senior Borrowing Base, listing all effective financing statements which
name the Borrowers or AFS Funding Trust (in any case, under its present
name and any previous name) as debtor and which are filed in the State
of Delaware, the State of Nevada or the State of Texas, together with
copies of such financing statements (none of which, other than financing
statements naming the collateral agent specified in the Spread Account
Agreement shall cover any of the Collateral);
(vii) The Master Collateral Agent shall have received an
opinion of counsel to the Borrowers with respect to the creation,
perfection and priority of the security interest in the beneficial
interest in the Underlying Trust; and
(viii) The Master Collateral Agent shall have received such
other documents, instruments, opinions, certificates as the Master
Collateral Agent may reasonably deem necessary or desirable.
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"Designated Non-FSA Series" means the Series 2000-1, Series
2001-1, and Series 2002-1 and each Series as to which the conditions set forth
below have been satisfied:
(i) the original certificate of beneficial interest in the
Underlying Trust for such Series is in the possession of the Master
Collateral Agent and is registered in the name of the Master Collateral
Agent or accompanied by an instrument of transfer satisfactory to the
Master Collateral Agent executed in blank, or, if uncertificated, all
action required to perfect the security interest of the Master
Collateral Agent therein has been completed to the satisfaction of the
Master Collateral Agent, and the Master Collateral Agent shall have
received a certificate of ACFS stating that the Master Collateral Agent
has possession of such certificate and a perfected security interest in
such certificate, and there shall be no other security interests or
Liens on such certificate;
(ii) ACFS shall have delivered a certificate to the Master
Collateral Agent certifying that each of the related Series Transaction
Documents is in full force and effect, no party to any such document is
in default of its obligations thereunder, there is no default, event
which with the passage of time or the giving of notice or both would
constitute a default, servicer default, event which with the passage of
time or the giving of notice or both would constitute a servicer
default, trigger event or like occurrence in the Underlying
Transactions, and all of the representations and warranties of the
Borrowers set forth in such Series Transaction Documents are true and
correct;
(iii) The Master Collateral Agent shall have received a
certificate of the Borrowers or ACFS stating that ACFS is the servicer
for such Series;
(iv) At least four Business Days prior to the date the cash
flows from such Series will initially be included in the calculation of
the Senior Borrowing Base, ACFS shall have provided to the Master
Collateral Agent (with a copy to each Facility Representative) a
certificate certifying the information with respect to such Series
described on Annex 1;
(v) The Master Collateral Agent shall have received
certified copies of requests for information or copies (or a similar
search report certified by a party acceptable to the Master Collateral
Agent), dated a date reasonably near to the date on which the cash flows
from such Series will initially be included in the calculation of the
Senior Borrowing Base, listing all effective financing statements which
name the Borrowers or AFS Funding Trust (in any case, under its present
name and any previous name) as debtor and which are filed in the State
of Delaware, the State of Nevada or the State of Texas, together with
copies of such financing statements;
(vi) The Master Collateral Agent shall have received an opinion
of counsel to the Borrowers with respect to the creation, perfection and
priority of the security interest in the beneficial interest in the
Underlying Trust;
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(vii) The Master Collateral Agent shall have received an
irrevocable letter of direction from the Borrowers to the trustee party
to the related sale and servicing agreement instructing such trustee to
pay all amounts otherwise payable to the Borrowers to the Master
Collateral Agent, which letter shall have been acknowledged and agreed
to by such trustee; and
(viii) The Master Collateral Agent shall have received such
other documents, instruments, opinions, certificates as the Master
Collateral Agent may reasonably deem necessary or desirable.
"Designated Term Series" means each Designated FSA Series and
each Designated Non-FSA Series.
"Determination Date" means, with respect to any Distribution
Date, the fourth Business Day preceding such Distribution Date.
"Distribution Date": The 12th day of each calendar month, or, if
such day is not a Business Day, the immediately following
Business Day.
"Eligible Account" means (i) a segregated trust account
maintained with the Master Collateral Agent or (ii) a segregated trust account
maintained with a depository institution or trust company organized under the
laws of the United States of America, or any of the States thereof, or the
District of Columbia, having a certificate of deposit, short term deposit or
commercial paper rating of at least A-1 by Standard & Poor's and P-1 by ▇▇▇▇▇'▇.
Except in the event of a transfer pursuant to Section 7(a) of the Revolver
Security Agreement, such depository institution or trust company shall have been
approved by written notice from ACFS.
"Entitlement Order" has the meaning set forth in Section
8-102(a)(8) of Article 8.
"Event of Default" has the meaning set forth in Section 25.
"Facility Representatives" means the Senior Facility
Representatives and Junior Facility Representatives.
"Federal Book Entry Security" means an obligation (i) issued by
the U.S. Treasury, the Federal Home Loan Mortgage Corporation or the Federal
National Mortgage Association, or any other direct obligation of, or obligation
fully guaranteed as to timely payment or principal and interest by, the United
States of America, that is a book-entry security held through the Federal
Reserve System pursuant to Federal book entry regulations, and (ii) the
perfection of a security interest in which is governed pursuant to federal
regulations by Article 8.
"Final FSA Insurance Termination Date" means the last to occur
of the FSA Insurance Termination Dates.
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"Financial Asset" has the meaning set forth in Section
8-102(a)(9) of Article 8.
"FSA" means Financial Security Assurance Inc., a New York stock
insurance company.
"FSA Insurance Termination Date" means, when used in the
singular, any of, and when used in the plural, all of, the termination date of
the 1998-D Insurance and Indemnity Agreement, the 1999-A Insurance and Indemnity
Agreement, the 1999-B Insurance and Indemnity Agreement, the 1999-C Insurance
and Indemnity Agreement, 1999-D Insurance and Indemnity Agreement, the 2000-A
Insurance and Indemnity Agreement, the 2000-B Insurance and Indemnity Agreement,
the 2000-C Insurance and Indemnity Agreement, the 2000-D Insurance and Indemnity
Agreement, the 2001-A Insurance and Indemnity Agreement, the 2001-B Insurance
and Indemnity Agreement, the 2001-C Insurance and Indemnity Agreement, the
2001-D Insurance and Indemnity Agreement, the 2002-A Insurance and Indemnity
Agreement, and the 2002-B Insurance and Indemnity Agreement, and the termination
date of each other insurance and indemnity agreement entered into in connection
with a Series the spread account of which is subject to the Spread Account
Agreement.
"FSA Series" means, at any particular time, all Series with
respect to which FSA has issued an insurance policy and with respect to which
the spread accounts are subject to the Spread Account Agreement.
"Initial Advance Date" has the meaning set forth in Section 14.
"Instruments" has the meaning set forth in Section 9-105(l)(i)
of Article 8.
"Investment Property" has the meaning set forth in Section
9-115(1)(f) of Article 8.
"Joinder Supplement" means an agreement among one or more Senior
Facility Representatives or Junior Facility Representatives, the Borrowers, ACFS
and the Master Collateral Agent in the form of Exhibit A hereto (appropriately
completed).
"Junior Creditors" means any holder of any Junior Debt.
"Junior Debt" means all of the liabilities and obligations of
any of the Borrowers evidenced by the Junior Facility Agreements and any other
instrument, agreement or document relating to or entered into in connection with
any of the foregoing, and all other amounts now or hereafter owed by any of the
Borrowers to the Junior Creditors under any of the Junior Facility Agreements.
"Junior Default" means a default in the payment of any of the
Junior Debt or in the performance of any term, covenant or condition contained
in the Junior Facility Agreements
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or any other occurrence permitting any Junior Creditors to accelerate the
payment of all or any portion of the Junior Debt.
"Junior Default Notice" means a written notice from a Junior
Facility Representative to the Master Collateral Agent pursuant to which the
Master Collateral Agent is notified of the occurrence of a Junior Default, which
notice shall reasonably identify such Junior Default.
"Junior Facility Aggregate Amount" means, with respect to any
date, the sum of the Junior Facility Outstanding Amounts with respect to each
Junior Facility Agreement on such date.
"Junior Facility Agreement" means each loan agreement,
indenture, note, letter of credit reimbursement agreement, reinsurance
agreement, cash collateral loan agreement or other agreement identified from
time to time by any Borrower as such and qualifying as such pursuant to the
terms of Section 15 hereof.
"Junior Facility Outstanding Amount" means, with respect to a
Junior Facility Agreement and any date, the outstanding principal amount of any
Borrower's repayment or reimbursement obligations under such Junior Facility
Agreement on such date.
"Junior Facility Representative" means, with respect to any
Junior Facility Agreement, the party identified as such in the Joinder
Supplement executed pursuant to Section 15 in connection with Junior Facility
Agreement qualifying as such hereunder.
"Lien" means, with respect to any asset, any mortgage, pledge,
hypothecation, assignment, deposit arrangement, encumbrance, lien (statutory or
other), preference, priority, security agreement or preferential arrangement of
any kind or nature whatsoever (including any conditional sale or other title
retention agreement relating to such asset).
"Master Collateral Agent" has the meaning specified in the
Preamble.
"MCA Servicer's Certificate" has the meaning specified in
Section 6.
"Obligations" means all obligations (monetary or otherwise) of
the Borrowers to (a) the Master Collateral Agent, the Revolver Collateral Agent,
the Revolver Administrative Agent, and the lenders and agents parties to the
Revolving Credit Agreement, (b) the parties providing loans or credit
enhancement under the other Senior Facility Agreements and (c) the parties
providing loans or credit facilities under the Junior Facility Agreements.
"Permitted Lien" means, with respect to any Person, (i) any Lien
for taxes, assessments or other governmental charges or levies not yet subject
to penalties for non-payment or the validity, applicability or amount of which
is being contested in good faith by appropriate legal proceedings and with
respect to which adequate reserves in accordance with generally
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accepted accounting principles have been established by such Person; (ii) any
Lien which is imposed by law (such as those of mechanics, carriers and
warehousemen), if payment of the obligation secured thereby is not yet due or
the validity, the applicability or amount of which is being contested in good
faith by appropriate legal proceedings and with respect to which adequate
reserves in accordance with generally accepted accounting principles have been
established by such Person; and (iii) judgment Liens in existence less than five
days after the entry thereof or with respect to which execution has been stayed,
so long as the aggregate amount of all such judgment Liens at any time does not
exceed $100,000, or judgment Liens the payment of which is covered in full
(subject to a customary deductible) by insurance.
"Physical Property" means personal property constituting
Instruments, including bankers' acceptances, commercial paper, negotiable
certificates of deposit and other obligations that are susceptible of physical
delivery.
"Proceeding" means any voluntary or involuntary insolvency,
bankruptcy, receivership, custodianship, liquidation, dissolution,
reorganization, assignment for the benefit of creditors, appointment of a
custodian, receiver, trustee or other officer with similar powers or any other
proceeding for the liquidation, dissolution or other winding up of a person or
entity.
"Reorganization Subordinated Securities" means any equity
securities, notes or other debt securities issued pursuant to a plan of
reorganization or restructuring in any Proceeding in substitution for all or any
portion of the Junior Debt.
"Required Facility Representatives" means, on any date, (a) so
long as any amount is outstanding under any Senior Facility Agreement or any
commitment under any Senior Facility Agreement is in effect, the Required Senior
Facility Representatives and (b) thereafter, the Required Junior Facility
Representatives.
"Required Junior Facility Representatives" means, on any date,
Junior Facility Representatives with respect to Junior Facility Agreements
representing Junior Facility Outstanding Amounts in excess of 50% of the Junior
Facility Aggregate Amount on such date.
"Required Senior Facility Representatives" means, on any date,
(i) with respect to declaring Events of Default and/or exercising remedies with
respect thereto, (A) if a Senior Borrowing Base Deficiency exists, Senior
Facility Representatives with respect to Senior Facilities Agreements
representing Senior Facility Notional Amounts in excess of 66-2/3% of the Senior
Facility Aggregate Amount on such date or (B) if no Senior Borrowing Base
Deficiency exists, all Senior Facility Representatives and (ii) with respect to
all other matters, Senior Facility Representatives with respect to Senior
Facility Agreements representing Senior Facility Notional Amounts in excess of
50% of the Senior Facility Aggregate Amount on such date.
"Residual Interests" means, collectively, the Series 2000-1
Residual Interest, the Series 2001-1 Residual Interest, the Series 2002-1
Residual Interest, and the certificates of beneficial interest in each
Underlying Trust with respect to each Designated Non-FSA Series.
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"Revolver Administrative Agent" has the meaning specified in the
Preamble.
"Revolver Collateral Agent" has the meaning specified in the
Preamble.
"Revolver Collateral" means the property of the Borrowers in
which a security interest has been granted by the Borrowers pursuant to the
terms of the Revolver Security and Collateral Agent Agreement, dated as of the
date hereof, among the Borrowers, ACFS, the Revolver Collateral Agent and the
Revolver Administrative Agent, as the same may from time to time be amended,
supplemented or otherwise modified.
"Revolver Excess Spread" means any amounts received by the
Master Collateral Agent from the Revolver Collateral Agent pursuant to Section
6(vi) of the Revolver Security Agreement.
"Revolver Security Agreement": the Revolver Security and
Collateral Agent Agreement, dated as of the date hereof, among the Borrowers,
ACFS, the Revolver Collateral Agent and the Revolver Administrative Agent, as
the same may be amended, supplemented or otherwise modified from time to time.
"Revolving Credit Agreement" has the meaning set forth in the
recitals.
"Secured Parties" means, collectively, (a) the Master Collateral
Agent, the Revolver Collateral Agent, the Revolver Administrative Agent, and the
lenders and agents parties to the Revolving Credit Agreement, (b) the parties
providing loans or credit enhancement under the other Senior Facility Agreements
and (c) the parties providing loans or credit facilities under the Junior
Facility Agreements, and their respective successors and assigns, as their
interests may appear.
"Securities Account" has the meaning set forth in Section
8-501(a) of Article 8.
"Security Entitlement" has the meaning set forth in Section
8-102(a)(17) of Article 8.
"Securities Intermediary" has the meaning set forth in Section
8-102(a)(14) of Article 8.
"Senior Borrowing Base" means, at any time, the amount
determined by ACFS and confirmed by the Master Collateral Agent with respect to
all Designated Term Series pursuant to the cash flow model described in Annex 1.
"Senior Borrowing Base Certificate" has the meaning set forth in
Section 5(g).
"Senior Borrowing Base Deficiency" means, at any time, the
Senior Facility Aggregate Amount exceeds the Senior Borrowing Base at such time
and such condition has
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existed (x) if such condition is the result, in whole or in part, of a change by
S & P in the "Modeling Assumptions" used pursuant to Annex 1 to calculate the
Senior Borrowing Base, on two consecutive Distribution Dates or (y) otherwise,
for five Business Days.
"Senior Borrowing Base Interim Deficiency" means, at any time,
the Senior Facility Aggregate Amount exceeds the Senior Borrowing Base at such
time and such condition has not existed on two consecutive Distribution Dates.
"Senior Creditors" means any holder of any Senior Debt.
"Senior Debt" means all of the liabilities and obligations of
any Borrower evidenced by the Senior Facility Agreements and any notes issued
thereunder and any other instrument, agreement or document relating to or
entered into in connection with any of the foregoing, and all other amounts now
or hereafter owed by any Borrower to the Senior Creditors under any of the
Senior Facility Agreements.
"Senior Default" means a default in the payment of any of the
Senior Debt or in the performance of any term, covenant or condition contained
in the Senior Facility Agreements or any other occurrence permitting any Senior
Creditors to accelerate the payment of all or any portion of the Senior Debt.
"Senior Default Notice" means a written notice from a Senior
Facility Representative to the Master Collateral Agent pursuant to which the
Master Collateral Agent is notified of the occurrence of a Senior Default, which
notice shall reasonably identify such Senior Default.
"Senior Excluded Collateral" means the property of any Borrower
in which a security interest has been granted by such Borrower pursuant to the
terms of the Senior Facility Agreements to secure amounts due under such
Agreements.
"Senior Facility Aggregate Amount" means, with respect to any
date, the sum of the Senior Facility Notional Amounts with respect to each
Senior Facility Agreement on such date.
"Senior Facility Agreement" means each of the Revolving Credit
Agreement and related notes and each other note, loan agreement, letter of
credit reimbursement agreement, reinsurance agreement, cash collateral loan
agreement or other agreement identified from time to time by the Borrowers as
such and qualifying as such pursuant to the terms of Section 13 hereof.
"Senior Facility Allocated Amount" means, with respect to a
Senior Facility Agreement and any Distribution Date, the product of (a) the
Available Funds for such Distribution Date and (b) the Senior Facility
Allocation Percentage with respect to such Senior Facility Agreement on such
date.
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"Senior Facility Allocation Percentage" means, with respect to a
Senior Facility Agreement and any Distribution Date, the percentage equivalent
of a fraction, the numerator of which is the Senior Facility Notional Amount
with respect to such Senior Facility Agreement for such Distribution Date and
the denominator of which is the total of the Senior Facility Notional Amounts
with respect to all Senior Facility Agreements on such Distribution Date.
"Senior Facility Excess Spread" means, on any Distribution Date
with respect to a Senior Facility Agreement, any cash flows from underlying
collateral in excess of all amounts required to be paid to the Senior Creditors
party to such agreement on such date.
"Senior Facility Notional Amount" means, with respect to a
Senior Facility Agreement and any Distribution Date, the amount specified as
such in such Senior Facility Agreement with respect to such date, provided,
however, that the Senior Facility Notional Amount with respect to any Senior
Facility Agreement may only be increased in accordance with the provisions of
Section 14.
"Senior Facility Representative" means (a) with respect to the
Revolving Credit Agreement, (i) with respect to distributions of amounts
pursuant to clauses (ii), (iii) and (iv) of Section 6, the Lender Collateral
Agent and (ii) in all other cases, collectively, the Required Lenders (as
defined in the Revolving Credit Agreement) and (b) with respect to any other
Senior Facility Agreement, the party identified as such in the Joinder
Supplement executed pursuant to Section 13 in connection with Senior Facility
Agreement qualifying as such hereunder.
"Senior Facility Required Amount" means, with respect to a
Senior Facility Agreement and any Distribution Date, the aggregate amount due to
the Secured Parties under such Senior Facility Agreement on such Distribution
Date less the amount of funds available pursuant to the terms of such Senior
Facility Agreement to pay such amount on such date.
"Senior Facility Shortfall Amount" means, with respect to a
Senior Facility Agreement and any Distribution Date, the excess, if any, of the
Senior Facility Required Amount with respect to such Senior Facility Agreement
on such Distribution Date over the Senior Facility Allocated Amount with respect
to such Senior Facility Agreement on such Distribution Date.
"Series" has the meaning set forth in the recitals.
"Series Transaction Documents" means, with respect to any
Series, the pooling and servicing agreement (or equivalent document by any other
name), sale and servicing agreement, indenture, insurance and indemnity
agreement, if any, notes, certificates of beneficial interest, trust agreements,
transfer agreements, contribution agreements, and, if such Series is an FSA
Series, the related supplement to the Spread Account Agreement and, if such
Series is not an FSA Series, any related credit enhancement documents.
- 13 -
"Series 2000-1 Residual Interest" means the certificate of
beneficial interest in the AmeriCredit Automobile Receivables Trust 2000-1 and
all rights to payment with respect thereto and all proceeds thereof.
"Series 2001-1 Residual Interest" means the certificate of
beneficial interest in the AmeriCredit Automobile Receivables Trust 2001-1 and
all rights to payment with respect thereto and all proceeds thereof.
"Series 2002-1 Residual Interest" means the certificate of
beneficial interest in the AmeriCredit Automobile Receivables Trust 2002-1 and
all rights to payment with respect thereto and all proceeds thereof.
"Spread Account Agreement": That certain Spread Account
Agreement, dated as of December 1, 1994, as amended and restated as of May 11,
1998, among AFS Funding, FSA, Lasalle National Bank, ▇▇▇▇▇▇ Trust and Savings
Bank and Bank One, N.A., as amended, restated, modified or supplemented from
time to time.
"UCC" means the Uniform Commercial Code as in effect in each
relevant jurisdiction.
"Uncertificated Security" has the meaning set forth in Section
8-102(a)(18) of Article 8.
"Underlying Transactions" means, when used in the singular, any
of, and when used in the plural, all of, the transactions contemplated by each
of 1998-D Insurance and Indemnity Agreement, the 1999-A Insurance and Indemnity
Agreement, the 1999-B Insurance and Indemnity Agreement, the 1999-C Insurance
and Indemnity Agreement, the 1999-D Insurance and Indemnity Agreement, the
2000-A Insurance and Indemnity Agreement, the 2000-B Insurance and Indemnity
Agreement, the 2000-C Insurance and Indemnity Agreement, the 2000-D Insurance
and Indemnity Agreement, the 2001-A Insurance and Indemnity Agreement, the
2001-B Insurance and Indemnity Agreement, the 2001-C Insurance and Indemnity
Agreement, the 2001-D Insurance and Indemnity Agreement, the 2002-A Insurance
and Indemnity Agreement, the 2002-B Insurance and Indemnity Agreement, the
1998-D Sale and Servicing Agreement, the 1999-A Sale and Servicing Agreement,
the 1999-B Sale and Servicing Agreement, the 1999-C Sale and Servicing
Agreement, the 1999-D Sale and Servicing Agreement, the 2000-1 Sale and
Servicing Agreement, the 2000-A Sale and Servicing Agreement, the 2000-B Sale
and Servicing Agreement, the 2000-C Sale and Servicing Agreement, the 2000-D
Sale and Servicing Agreement, the 2001-1 Sale and Servicing Agreement, the
2001-A Sale and Servicing Agreement, the 2001-B Sale and Servicing Agreement,
the 2001-C Sale and Servicing Agreement, the 2001-D Sale and Servicing
Agreement, the 2002-A Sale and Servicing Agreement, the 2002-1 Sale and
Servicing Agreement, the 2002-B Sale and Servicing Agreement, each insurance and
indemnity agreement and each sale and servicing agreement entered into in
connection with a Designated Term Series
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and all other transactions anticipated by the documents executed in connection
with any of the foregoing.
"Underlying Trust" means, in the singular any of the AmeriCredit
Automobile Receivables Trust 1998-D, the AmeriCredit Automobile Receivables
Trust 1999-A, the AmeriCredit Automobile Receivables Trust 1999-B, the
AmeriCredit Automobile Receivables Trust 1999-C, the AmeriCredit Automobile
Receivables Trust 1999-D, the AmeriCredit Automobile Receivables Trust 2000-1,
the AmeriCredit Automobile Receivables Trust 2000-A, the AmeriCredit Automobile
Receivables Trust 2000-B, the AmeriCredit Automobile Receivables Trust 2000-C,
the AmeriCredit Automobile Receivables Trust 2000-D, the AmeriCredit Automobile
Receivables Trust 2001-1, the AmeriCredit Automobile Receivables Trust 2001-A,
the AmeriCredit Automobile Receivables Trust 2001-B, the AmeriCredit Automobile
Receivables Trust 2001-C, the AmeriCredit Automobile Receivables Trust 2001-D,
the AmeriCredit Automobile Receivables Trust 2002-A, the AmeriCredit Automobile
Receivables Trust 2002-1, the AmeriCredit Automobile Receivables Trust 2002-B,
and each trust established in connection with a Designated Term Series and in
the plural, all of such trusts.
"Underlying Trustees": in the singular, the trustees, trust
collateral agents or collateral agents in the Underlying Transactions and any
other trustee designated with respect to the Underlying Transactions.
Section 2 Appointment of Master Collateral Agent. The
Secured Parties party to the Revolving Credit Agreement have authorized the
appointment of Deutsche Bank Trust Company Americas as Master Collateral Agent
hereunder and subject to the terms and conditions hereof. Subject to the terms
and conditions hereof, each other Facility Representative, by its execution of a
Joinder Supplement, hereby appoints Deutsche Bank Trust Company Americas as
Master Collateral Agent hereunder, and Deutsche Bank Trust Company Americas
hereby accepts such appointment.
Section 3 Borrowers' Grant of Security Interest. As
security for the prompt payment or performance in full when due, whether at
stated maturity, by acceleration or otherwise, of all Obligations and of all
amounts secured by this Agreement, the Borrowers hereby assign and pledge to the
Master Collateral Agent, for the benefit of the Secured Parties, and grant to
the Master Collateral Agent, for the benefit of the Secured Parties, a perfected
security interest in and lien upon, all of the Borrowers' right, title and
interest in and to the following, in each case whether now or hereafter existing
or in which Borrowers now have or hereafter acquire an interest and wherever the
same may be located (collectively, the "Collateral"):
(a) the beneficial interest in AFS Funding Trust represented
by the AFSFT Class A Certificate;
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(b) all rights of AFS Funding to profits, distributions and
proceeds from the beneficial interest described in (a)
(together with the beneficial interest described in (a),
the "AFSFT Class A Certificate Collateral");
(c) the Series 2000-1 Residual Interest, the Series 2001-1
Residual Interest, the Series 2002-1 Residual Interest,
and each other Residual Interest that may from time to
time hereafter be granted and pledged by the Borrowers
under this Agreement;
(d) all of the following (the "Account Collateral"):
(1) the Collateral Account and all funds
held in the Collateral Account and all certificates and
instruments, if any, from time to time representing or
evidencing the Collateral Account or such funds,
(2) all investments from time to time of
amounts in the Collateral Account, and all certificates
and instruments, if any, from time to time representing
or evidencing such investments,
(3) all Clearing Corporation Securities,
Certificated Securities, Uncertificated Securities,
Federal Book-Entry Securities, Security Entitlements,
Investment Property, notes, certificates of deposit and
other instruments from time to time delivered to or
otherwise possessed by the Master Collateral Agent or
any Secured Party or any assignee, agent or Securities
Intermediary on behalf of the Master Collateral Agent or
any Secured Party in substitution for or in addition to
any of the then existing Account Collateral, and
(4) all interest, dividends, cash,
instruments and other property from time to time
received, receivable or otherwise distributed in respect
of or in exchange for any and all of the then existing
Account Collateral;
(e) all Accounts, Chattel Paper, Documents, Goods, General
Intangibles, Instruments and Investment Property of the
Borrowers excluding the Revolver Collateral and the
Senior Excluded Collateral;
(f) all additional property that may from time to time
hereafter be granted and pledged by the Borrowers or by
anyone on its behalf under this Agreement, including the
deposit with the Master Collateral Agent of additional
moneys by the Borrowers; and
(g) all Proceeds, accessions, substitutions, rents and
profits of any and all of the foregoing Collateral
(including proceeds that constitute property of the
types described in paragraphs (a) through (f) above)
and, to the extent not
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otherwise included, all payments under insurance
(whether or not the Master Collateral Agent or a Secured
Party or any assignee or agent on behalf of the Master
Collateral Agent or a Secured Party is the loss payee
thereof) or any indemnity, warranty or guaranty payable
by reason of loss, non-payment or damage to or otherwise
with respect to any of the foregoing Collateral.
Section 4 Borrowers Remain Liable. Notwithstanding
anything in this Agreement, (a) except to the extent of ACFS's duties under this
Agreement, each Borrower shall remain liable under the Series Transaction
Documents to which it is a party (the "Borrower Agreements") to perform all of
its duties and obligations thereunder to the same extent as if this Agreement
had not been executed, (b) the exercise by a Secured Party or the Master
Collateral Agent of any of its rights under this Agreement shall not release any
Borrower or ACFS from any of their respective duties or obligations under the
Borrower Agreements to which it is a party or other agreements included in the
Collateral, (c) the Revolver Collateral Agent, the Secured Parties and the
Master Collateral Agent shall not have any obligation or liability under the
Borrower Agreements to which it is a party or other agreements included in the
Collateral by reason of this Agreement, and (d) neither the Revolver Collateral
Agent, the Master Collateral Agent nor any of the Secured Parties shall be
obligated to perform any of the obligations or duties of the Borrowers or ACFS
under the Borrower Agreements or other agreements included in the Collateral or
to take any action to collect or enforce any claim for payment assigned under
this Agreement.
Section 5 Covenants Regarding the Collateral.
(a) Offices and Records. ACFS and the Borrowers will permit
representatives of the Revolver Collateral Agent, the Facility Representatives
and the Master Collateral Agent, at the expense of ACFS in the case of one visit
per year, at any time and from time to time during normal business hours (i) to
inspect and make copies of and abstracts from its records regarding the
Collateral and Designated Term Series, and (ii) to visit the properties of the
Borrowers or ACFS utilized in connection with the servicing of the Designated
Term Series for the purpose of examining such records, and to discuss matters
relating to the Designated Term Series or the Borrowers' or ACFS' performance
under this Agreement with any officer or employee of the Borrowers or ACFS
having knowledge of such matters, provided that the Person seeking such
information has given the Borrowers or ACFS prior written notice of its intent
to inspect or visit and provided, further that no such Person shall so inspect
or visit the Borrowers or ACFS more frequently than once per quarter unless a
Default or an Event of Default has occurred and is continuing or ACFS otherwise
consents to such additional inspection or visit. If a Default or Event of
Default has occurred and is continuing, such inspection or visit shall be at the
expense of the Borrowers. Each of the Borrowers and ACFS agrees to render to the
Revolver Collateral Agent and the Master Collateral Agent such clerical and
other assistance as may be reasonably requested with regard to the foregoing.
Neither Borrower shall change its name, identity or corporate structure to such
an extent that any financing statement filed by the Master Collateral
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Agent in connection with this Agreement would become seriously misleading,
unless it shall have given the Master Collateral Agent and the Revolver
Collateral Agent at least 30 days' prior written notice of such change.
(b) Performance of Borrower Agreements. Each Borrower shall (i)
perform and observe all the terms and provisions of the Borrower Agreements to
be performed or observed by it, maintain the Borrower Agreements to which it is
a party in full force and effect, enforce such Borrower Agreements in accordance
with their terms and take all such action to such end as may be from time to
time requested by the Master Collateral Agent and (ii) upon request of the
Master Collateral Agent, make to any other party to such Borrower Agreements
such demands and requests for information and reports or for action as such
Borrower is entitled to make under the Borrower Agreements.
(c) Notice of Material Adverse Claim. Each of the Borrowers and ACFS
shall advise the Master Collateral Agent and each Facility Representative
promptly, in writing and in reasonable detail, (i) of any Lien, other than a
Permitted Lien, known to it made or asserted against any of the Collateral, and
(ii) of the occurrence of any event which would have a material adverse effect
on the value of the Collateral or on the assignments and security interests, or
priority or perfection thereof, granted by the Borrowers in this Agreement or
the ability of the Master Collateral Agent to enforce its security interest in
the Collateral or foreclose on the Collateral.
(d) Further Assurances; Financing Statements.
(1) Each of the Borrowers and ACFS agrees
that at any time and from time to time, at its expense,
it shall promptly execute and deliver all further
instruments and documents, and take all reasonable
further action, that may be necessary or desirable or
required by applicable law or that the Master Collateral
Agent or any Facility Representative may request to
perfect and protect the assignments and security
interests granted or purported to be granted by this
Agreement or to enable the Master Collateral Agent or
any of the Secured Parties to exercise and enforce its
rights and remedies under this Agreement with respect to
any Collateral. Without limiting the generality of the
foregoing, the Borrowers shall execute and file such
financing or continuation statements, or amendments
thereto, and such other instruments or notices as may be
necessary or desirable or required by applicable law or
that the Master Collateral Agent or any Facility
Representative may reasonably request to protect and
preserve the assignments and security interests granted
by this Agreement. On the Effective Date, AFS Funding
shall Deliver to the Master Collateral Agent the AFSFT
Class A Certificate and the Borrowers shall deliver to
the Master Collateral Agent all certificates
representing the Residual Interests together with
instruments of transfer and bond powers,
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each executed in blank.
(2) Upon receipt by an authorized officer of
the Master Collateral Agent of written request from any
Lender or Agent party to the Revolving Credit Agreement
or any Facility Representative to file one or more
financing or continuation statements, or amendments
thereto, relating to all or any part of the Collateral,
the Master Collateral Agent will employ legal counsel on
behalf of the Secured Parties to prepare, at the expense
of the Borrowers, such financing statements,
continuation statements or other instruments required
under this Section for execution by the Master
Collateral Agent who will return such documents to legal
counsel for filing in the appropriate jurisdictions as
necessary. The Master Collateral Agent shall have no
responsibility or obligation, at any time, to monitor,
inquire or investigate with respect to the need for any
financing statements, continuation statements or such
other instruments. The Borrowers and each Secured Party
hereby severally authorize the Master Collateral Agent
to file one or more financing or continuation
statements, and amendments thereto, relating to all or
any part of the Collateral without the signature of the
Borrowers or the Secured Parties where permitted by law
and to cause such statements and amendments to be filed
at the expense of the Borrowers (which may include fees
and expenses for services of legal counsel). A carbon,
photographic or other reproduction of this Agreement or
any financing statement covering the Collateral or any
part thereof shall be sufficient as a financing
statement where permitted by law. The Master Collateral
Agent will promptly send, or cause counsel to send, to
the Borrowers any financing or continuation statements
thereto which it files, or causes to be filed, without
the signature of the Borrowers and will promptly send,
or cause counsel to send, to each Secured Party and the
Borrowers, as the case may be, any financing or
continuation statements thereto which it files, or
causes to be filed, without the signature of the Secured
Parties except, in the case of filings of copies of this
Agreement as financing statements, the Master Collateral
Agent will promptly send, or cause counsel to send, to
the Borrowers and each Secured Party, as the case may
be, the filing or recordation information with respect
thereto.
(3) Each of the Borrowers and ACFS shall
furnish to the Master Collateral Agent and each Facility
Representative from time to time such statements and
schedules further identifying and describing the
Collateral and such other reports in connection with the
Collateral as any Facility Representative may reasonably
request, all in reasonable detail.
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(e) Opinions as to Collateral. Not more than 90 days nor less than
30 days prior to each August 1, commencing August 1, 2003, during the term of
this Agreement the Borrowers shall, at their own cost and expense, furnish to
the Master Collateral Agent and each Facility Representative 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 Master Collateral
Agent (and the priority thereof), with respect to the Collateral against all
creditors of and purchasers from the Borrowers 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 Master Collateral Agent with respect to the
Collateral against all creditors of and purchasers from the Borrowers for a
period, specified in such opinion, continuing until a date not earlier than
eighteen months from the date of such opinion.
(f) Non-Interference. Neither Borrower shall (i) waive or alter any
of its rights under the Collateral (or waive, alter or amend any agreement or
instrument relating thereto) without the prior written consent of the Master
Collateral Agent; 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 its right,
title or interest in and to the Collateral or the Master Collateral Agent's
rights in, lien on, and security interest in the Collateral or the perfection,
priority or enforcement thereof; 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 hereunder.
(g) Borrowing Base Calculations. Until this Agreement shall have
been terminated in accordance with its terms, ACFS agrees that it will furnish
to the Master Collateral Agent and each Facility Representative and each
"Lender" party to the Revolving Credit Agreement (as defined therein), as soon
as available and in any event on or before each Determination Date, a
certificate in the form of Exhibit B (a "Senior Borrowing Base Certificate")
setting forth the Senior Borrowing Base and each Senior Facility Notional
Amount. ACFS shall also deliver a Senior Borrowing Base Certificate to the
Master Collateral Agent and each Facility Representative in connection with each
additional Designated Series and each proposed change in a Senior Facility
Notional Amount. The Master Collateral Agent shall promptly confirm the accuracy
of such calculations, and, if it is unable to confirm such calculations, shall
promptly give notice thereof to ACFS and each Facility Representative. In
addition, on March 1 and August 1 of each year, commencing March 1, 2003, AFCS
agrees to cause a firm of nationally recognized independent accountants to
perform (and report the results thereof to the Master Collateral Agent and each
Facility Representative) agreed upon procedures acceptable to the Required
Facility Representatives which will (1) verify the modeling inputs against the
underlying terms of the Designated Term Series, (2) recalculate the cash flows
using the
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methodology outlined in Annex 1 of this Agreement and (3) calculate the total
Senior Borrowing Base pursuant to said Annex 1.
(h) Appointment of Servicer. If FSA or other credit enhancement
provider is not the "Controlling Party" with respect to any Designated Series,
as defined therein, to the extent either Borrower or AFS Funding Trust has
control over the appointment of a successor servicer with respect to such
Designated Series under the related Series Transaction Documents, the Borrowers
will not appoint, and will cause AFS Funding not to appoint, any successor
servicer without the consent of the Required Facility Representatives.
Section 6 Distributions.
On each Distribution Date by 2:00 p.m. (New York time), the Master
Collateral Agent shall distribute, from the amounts on deposit in the Collateral
Account, including Senior Facility Excess Spread deposited therein (the
"Available Funds"), in accordance with written instructions from ACFS delivered
to the Master Collateral Agent in substantially the form of Exhibit C hereto (a
"MCA Servicer's Certificate") at least three (3) Business Days prior to such
Distribution Date, the following amounts, if any, for such Distribution Date in
the following order of priority:
(i) FIRST, to the extent not previously paid by ACFS or
otherwise by or on behalf of the Borrowers to the Master Collateral
Agent, the Capped Expenses; and
(ii) SECOND, to each Senior Facility Representative for
application to amounts due to the Secured Parties under the related
Senior Facility Agreement in accordance with the terms of such Senior
Facility Agreement, the lesser of the Senior Facility Allocated Amount
with respect to the related Senior Facility Agreement for such
Distribution Date and the Senior Facility Required Amount with respect
to such Senior Facility Agreement for such Distribution Date; and
(iii) THIRD, to each Senior Facility Representative for
application to amounts due to the Secured Parties under the related
Senior Facility Agreement in accordance with the terms of such Senior
Facility Agreement, the Senior Facility Shortfall Amount (after giving
effect to distributions pursuant to clause SECOND) with respect to the
related Senior Facility Agreement for such Distribution Date, provided
that if the aggregate amount of Senior Facility Shortfall Amounts (after
giving effect to distributions pursuant to clause SECOND) with respect
to such Distribution Date exceeds the amount of the Available Funds that
are available for distribution pursuant to this clause THIRD on such
Distribution Date and a Senior Borrowing Base Deficiency shall not have
occurred and be continuing on such Distribution Date, such amount of the
Available Amount shall be distributed to each Senior Facility
Representative pro rata based on the respective Senior Facility Notional
Amounts; and provided, further, that the amount distributed to a Senior
Facility Representative pursuant to the preceding proviso
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shall not exceed the related Senior Facility Shortfall Amount (after
giving effect to distributions pursuant to clause SECOND) with respect
to such Distribution Date; and
(iv) FOURTH, to each Senior Facility Representative for
application to amounts due to the Secured Parties under the related
Senior Facility Agreement in accordance with the terms of such Senior
Facility Agreement, the Senior Facility Shortfall Amount with respect to
the related Senior Facility Agreement for such Distribution Date
remaining after giving effect to clause THIRD, pro rata based on the
respective remaining Senior Facility Shortfall Amounts; and
(v) FIFTH, to the extent not paid pursuant to clause FIRST
of Section 6(a), any fees, costs and expenses due to the Master
Collateral Agent hereunder; and
(vi) the remaining Available Funds shall be paid to, or at
the written direction of, the Borrowers or to any Junior Facility
Representative entitled thereto;
provided, that ACFS may allocate the amount of the Available Funds that are
available for distribution pursuant to clause THIRD and/or clause FOURTH on such
Distribution Date in such other manner as it may determine in its sole
discretion so long as after giving effect to the payment of such allocated
amounts, no Senior Facility Shortfall Amount will exist; and provided, further,
that if a Senior Borrowing Base Interim Deficiency shall exist on such
Distribution Date, then ACFS may elect to retain the amount of the Available
Funds that are available for distribution pursuant to clause THIRD in the
Collateral Account until the succeeding Distribution Date.
Section 7 The Collateral Account; Investments.
(a) On or prior to the Closing Date, the Borrowers shall establish
an account (the "Collateral Account") in the name of the Master Collateral Agent
for the benefit of the Secured Parties. The Collateral Account shall be an
Eligible Account which is a segregated non-interest bearing trust account
initially established with the Master Collateral Agent. If at any time the
Collateral Account ceases to be an Eligible Account, any Facility Representative
may direct the Master Collateral Agent in writing to transfer such account to
another institution so long as such account shall meet the requirements of an
Eligible Account. Each of ACFS and the Borrowers will cause all proceeds of
Collateral, including, without limitation, distributions on the AFSFT Class A
Certificate and the Residual Interests together with all Revolver Excess Spread
and Senior Facility Excess Spread to be deposited in the Collateral Account.
Each of ACFS and the Borrowers will hold in trust for the Master Collateral
Agent and will promptly deposit (but in no event later than one Business Day
after receipt) any amounts it receives in respect thereof in the Collateral
Account.
(b) All amounts held in the Collateral Account shall, to the extent
permitted by applicable laws, rules and regulations, be invested by the Master
Collateral Agent, as directed by ACFS in writing (or, if ACFS fails to provide
such direction, amounts in the Collateral Account
- 22 -
shall be invested in investments described in clause (d) of the definition of
Cash Equivalents), in Cash Equivalents that mature not later than one Business
Day prior to the next succeeding Distribution Date. The amounts held in the
Collateral Account on the Business Day prior to each Distribution Date shall be
invested by the Master Collateral Agent in overnight or next-day funds in such
Cash Equivalents reasonably available to the Master Collateral Agent as directed
in writing by ACFS 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
Master Collateral Agent in the Collateral Account immediately upon receipt. The
taxpayer identification number associated with the Collateral Account shall be
that of AFS Funding and each Borrower shall report for Federal, state and local
income tax purposes, the income, if any, represented by the Collateral Account
attributable to such Borrower. If any amounts are needed for disbursement from
the Collateral Account and sufficient uninvested funds are not available therein
to make such disbursement, the Master 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. Any written direction hereunder shall certify
that any such investment is authorized by this Section 7. Investments in Cash
Equivalents shall be made in the name of the Master Collateral Agent on behalf
of the Secured Parties, and, except as specifically required above, such
investments shall not be sold or disposed of prior to their maturity. Each and
every investment of funds in the Collateral Account shall be made in Cash
Equivalents held by a financial institution that is a Securities Intermediary in
an account pursuant to an agreement with such financial institution, that
requires such financial institution to (A) credit such Cash Equivalents to a
Securities Account exclusively in the name of the Master Collateral Agent, (B)
comply with Entitlement Orders pertaining to such account originated by the
Master Collateral Agent without further consent of the Borrowers, (C) not enter
into any agreement which grants "control" (as defined in Section 8-106 of
Article 8) of such account (or any interest or property therein) to any Person
other than the Master Collateral Agent, (D) subordinate any security interest,
banker's lien, right of setoff or other similar right which such financial
institution may have in such account to the interest of the Master Collateral
Agent and (E) expressly treat each item of property as a Financial Asset and
such account as a Securities Account.
Subject to the other provisions hereof, the Master 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 Master Collateral Agent or its agent, together with
each document of transfer, if any, necessary to transfer title and a Security
Entitlement free from any Adverse Claim to such investment to the Master
Collateral Agent in a manner that complies with this Section 7. All interest,
dividends, gains upon sale and other income from, or earnings on, investments of
funds in the Collateral Account shall be deposited in the Collateral Account and
distributed pursuant to Section 6 hereof. If the Master Collateral Agent is
given written instructions to invest funds in the Collateral Account in
investments other than investments of the type described in clause (d) of the
definition of "Cash Equivalents", the Person giving such instructions agrees to
assist the Master Collateral Agent in complying with the requirements herein
with respect to such investments.
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(c) With respect to the Account Collateral:
(i) any Account Collateral that is held in deposit accounts
shall be held solely in the name of the Master Collateral Agent in
accounts which satisfy clause (ii) of the definition of Eligible
Account; each such deposit account shall be subject to the exclusive
custody, dominion and control of the Master Collateral Agent, and the
Master Collateral Agent shall have sole signature authority with respect
thereto;
(ii) any Account Collateral that constitutes Physical
Property shall be delivered to the Master Collateral Agent in accordance
with paragraph (i) of the definition of "Delivery" and shall be
continuously held, pending maturity or disposition, solely by the Master
Collateral Agent;
(iii) any Account Collateral that constitutes a Certificated
Security shall be delivered to the Master Collateral Agent in accordance
with paragraph (ii) of the definition of "Delivery" and shall be
continuously held, pending maturity or disposition, solely by the Master
Collateral Agent;
(iv) any such Account Collateral that constitutes an
Uncertificated Security (including any investments in money market
mutual funds, but excluding any Federal Book Entry Security) and where
the issuer thereof is organized in a Revised Article 8 Jurisdiction,
shall be delivered to the Master Collateral Agent in accordance with
paragraph (iii) of the definition of "Delivery" and shall be maintained,
pending maturity or disposition, through continued registration of the
Master Collateral Agent's (or its nominee's) ownership of such security;
and
(v) with respect to any Account Collateral that constitutes
a Federal Book Entry Security, the Master Collateral Agent shall
maintain and obtain Control over such property.
Effective upon Delivery of any Account Collateral in the form of Physical
Property, book-entry securities or uncertificated securities, the Master
Collateral Agent shall be deemed to have represented that it has purchased such
Account Collateral for value, in good faith and without actual notice of any
adverse claim thereto.
(d) If any amount is on deposit in the Collateral Account on a day
when (i) there are no amounts due under the Revolving Credit Agreement, (ii) the
Senior Facility Notional Amount with respect to each Senior Facility Agreement
(other than the Revolving Credit Agreement) is zero and (iii) the Junior
Facility Aggregate Amount is zero, the Master Collateral Agent shall pay such
amount to, or at the written direction of, the Borrowers after it has (x)
confirmed receipt of such amount and (y) confirmed that the requirements of
clauses (i), (ii) and (iii) of this paragraph are have been satisfied.
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Section 8 Fees and Expenses. ACFS covenants and agrees to
pay to the Master Collateral Agent from time to time, and the Master Collateral
Agent shall be entitled to, the fees and expenses agreed in writing between ACFS
and the Master Collateral Agent, and will further pay or reimburse the Master
Collateral Agent upon its request for all reasonable fees, expenses and
disbursements incurred or made by the Master Collateral Agent in accordance with
any of the provisions hereof or any other documents executed in connection
herewith (including the reasonable compensation and the reasonable expenses and
disbursements of its counsel and of all persons not regularly in its employ). To
the extent not paid by ACFS, such fees, expenses and disbursements will be paid
to the Master Collateral Agent in accordance with the provisions of Section 6.
The obligations of ACFS under this Section 8 to compensate the Master Collateral
Agent and to pay or reimburse the Master Collateral Agent for reasonable
expenses and disbursements shall survive the satisfaction and discharge of this
Agreement or the earlier resignation or removal of the Master Collateral Agent.
When the Master Collateral Agent incurs expenses or renders services in
connection with proceedings under the Bankruptcy Code or any other applicable
federal or state bankruptcy, insolvency or other similar law, or in case of any
other comparable judicial proceedings relative to the Borrowers, such expenses
(including the fees and expenses of its counsel and agents) and the compensation
for such services are intended to constitute expenses of administration under
any bankruptcy law or law relating to creditors rights generally.
Section 9 Representations And Warranties Of The Master
Collateral Agent. The Master Collateral Agent represents and warrants as of the
date hereof that:
(a) It is a banking organization, validly existing and in good
standing under the laws of the State of New York;
(b) It has full power, authority and legal right to execute, deliver
and perform this Agreement and has taken all necessary action to authorize the
execution, delivery and performance by it of this Agreement;
(c) The execution, delivery and performance by it of this Agreement
do not violate any provision of its corporate charter or by-laws;
(d) This Agreement has been duly authorized, executed and delivered
by it and constitutes its legal, valid and binding agreement, enforceable
against it 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 10 Resignation By And Removal Of The Master
Collateral Agent; Successor Master Collateral Agent.
(a) The Master Collateral Agent may at any time resign and terminate
its obligations under this Agreement upon at least 60 days prior written notice
to the Revolver Collateral Agent,
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each Facility Representative and the Borrowers. No resignation shall be
effective until a successor Master Collateral Agent shall have been appointed
and accepted its appointment. Promptly after receipt of notice of the Master
Collateral Agent's proposed resignation, the Required Facility Representatives
shall appoint, by written instrument, a successor collateral agent and notify
the Borrowers thereof. If a successor collateral agent is not appointed in
accordance with the foregoing procedures, the Master 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 Facility Representative, the Master Collateral Agent, the
Revolver Collateral Agent, the Borrowers and the successor collateral agent.
(b) The Required Facility Representatives, upon at least 60 days
written notice to the Master Collateral Agent (or, if such removal is for cause,
such 60 day period may be decreased to no less than twenty Business Days by the
Required Facility Representatives in their sole discretion), may remove and
discharge the Master 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 Master Collateral Agent,
the Required Facility Representatives shall appoint, by written instrument, a
successor collateral agent and notify the Borrowers thereof. One (1) original
counterpart of such instrument of appointment shall be delivered to each
Facility Representative, the Master Collateral Agent, the Revolver Collateral
Agent, the Borrowers and the successor collateral agent. No such removal shall
become effective until all outstanding amounts due and owing to the Master
Collateral Agent are paid in full.
(c) In the event of any such resignation or removal, the Master
Collateral Agent shall promptly transfer to the successor collateral agent, as
directed in writing by the Required Facility Representatives, physical
collateral, all accounts, funds and investments being administered under this
Agreement and shall cooperate with each Facility Representative, the Borrowers
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
Collateral.
Section 11 Indemnity. ACFS agrees to indemnify, defend and
hold harmless the Master 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 that may be imposed upon, incurred by or
asserted against the Master Collateral Agent; provided, however, that this
Section 11 shall not relieve the Master Collateral Agent from liability for its
willful misconduct or gross negligence, as conclusively determined by a court of
competent jurisdiction beyond all applicable appeals. The provisions of this
Section 11 shall survive the resignation or removal of the Master Collateral
Agent or any successor Master Collateral Agent and the termination of this
Agreement.
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Section 12 Limitations Of Liability.
(a) The Master Collateral Agent shall not be liable to the
Borrowers, ACFS, the Revolver Collateral Agent, the Revolver Administrative
Agent, any other Facility Representative, any other Secured Party or any other
Person with respect to any action taken or not taken by it in the performance of
its obligations under this Agreement except in the case of the Master Collateral
Agent's willful misconduct or gross negligence. The obligations of the Master
Collateral Agent shall be determined solely by the express provisions of this
Agreement. No representation, warranty, covenant, agreement, obligation or duty
of the Master Collateral Agent shall be implied with respect to this Agreement
or the Master Collateral Agent's services hereunder.
(b) The Master Collateral Agent may conclusively rely, and shall be
fully protected in acting or refraining from acting, upon and need not verify
the accuracy of (i) any oral instructions from any persons the Master Collateral
Agent believes to be authorized to give such instructions, who shall only be,
with respect to ACFS, the Borrowers and each Facility Representative, persons
the Master 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
Master Collateral Agent to be genuine and to have been signed and presented by
the proper party or parties.
(c) The Master 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 Master Collateral Agent
in reasonable reliance, in good faith, and in accordance therewith; provided,
however, that if the Required Facility Representatives give written instructions
to the Master Collateral Agent or provide an opinion of counsel selected by
them, which in either case conflicts with any such advice or opinion of counsel,
then the Master Collateral Agent shall follow such instructions of the Required
Facility Representatives (unless such written instructions violate the express
terms of this Agreement, violate applicable law or subject the Master Collateral
Agent to liability) or such opinion of counsel selected by the Required Facility
Representatives, and shall be fully protected in acting or refraining to act
thereon. Any such written instructions from the Required Facility
Representatives shall contain an indemnity satisfactory to the Master Collateral
Agent with respect to the instructions given to the Master Collateral Agent.
(d) No provision of this Agreement shall require the Master
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 satisfactory to it is not assured to it.
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(e) The Master Collateral Agent may execute any of the trusts or
powers hereunder or perform any duties hereunder either directly or by or
through agents, attorneys, custodians or nominees appointed with due care, and
shall not be responsible for any willful misconduct or negligence on the part of
any agent, attorney, custodian or nominee so appointed.
(f) Whenever in the administration of the provisions of this
Agreement the Master Collateral Agent shall deem it necessary or desirable that
a matter be proved or established prior to taking or suffering any action to be
taken hereunder, such matter (unless other evidence in respect thereof be herein
specifically prescribed) may, in the absence of gross negligence or bad faith on
the part of the Master Collateral Agent, be deemed to be conclusively proved and
established by a certificate signed by an officer of any of ACFS, the Borrowers
and each Facility Representative, as the case may be, and delivered to the
Master Collateral Agent and such certificate, in the absence of gross negligence
or bad faith on the part of the Master Collateral Agent, shall be full warrant
to the Master Collateral Agent for any action taken, suffered or omitted by it
under the provisions of this Agreement upon the faith thereof.
(g) The Master Collateral Agent shall have no obligation to invest
and reinvest any cash held in the Collateral Account in the absence of timely
and specific written investment direction from ACFS. In no event shall the
Master Collateral Agent be liable for the selection of investments or for
investment losses incurred thereon. The Master Collateral Agent shall have no
liability in respect of losses incurred as a result of the liquidation of any
investment prior to its stated maturity or the failure of ACFS to provide timely
written investment direction.
(h) Any corporation into which the Master Collateral Agent may be
merged or converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which the Master
Collateral Agent shall be a party, or any corporation succeeding to the business
of the Master Collateral Agent shall be the successor of the Master Collateral
Agent hereunder without the execution or filing of any paper with any party
hereto or any further act on the part of any of the parties hereto except where
an instrument of transfer or assignment is required by law to effect such
succession, anything herein to the contrary notwithstanding.
(i) Notwithstanding anything herein to the contrary, in no event
shall the Master Collateral Agent have any obligation or liability in respect of
the monitoring or maintenance of the perfection of any security interest
evidenced hereby or for the filing or refiling or recording or rerecording of
any financing or continuation statements in respect of any such security
interest except if the Master Collateral Agent fails to comply with its
obligations under Section 5(d)(2) with respect to any financing or continuation
statement which any Agent, Lender or Facility Representative expressly requests
that it file pursuant to the terms thereof.
(j) The Master Collateral Agent shall not be deemed to have notice
of any Event of Default unless an Authorized Officer of the Master Collateral
Agent is specifically notified in writing of such event by a Facility
Representative, the Borrowers or ACFS.
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Section 13 Addition of Senior Facility Agreements. The
Borrowers may designate an agreement as a Senior Facility Agreement by
delivering to the Master Collateral Agent at least seven Business Days prior to
the proposed date of the effectiveness of such designation a written notice
identifying such agreement and the related Senior Facility Notional Amount and
by satisfying the following conditions on or before such proposed date of
effectiveness:
(a) at least seven Business Days prior to the proposed date of the
effectiveness of such designation, the Borrowers shall have delivered to the
Master Collateral Agent a certificate calculating the Senior Borrowing Base as
of such date and demonstrating that, after giving effect to such designation,
the sum of the Senior Facility Notional Amounts with respect to each Senior
Facility will not exceed the Senior Borrowing Base;
(b) the related Senior Facility Representative, the Borrowers and
ACFS shall have delivered to the Master Collateral Agent a Joinder Supplement
relating to such Senior Facility Agreement;
(c) S & P shall have confirmed in writing that amounts due under
each Senior Facility Agreement continue to be rated at least "BBB-," after
giving effect to the proposed Senior Facility Agreement;
(d) ACFS shall have delivered to the Master Collateral Agent a
certificate that the Senior Facility Agreement requires Senior Facility Excess
Spread, if any, to be paid to the Master Collateral Agent;
(e) such Senior Facility Agreement shall provide that the collateral
agent thereunder will hold any Senior Excluded Collateral with respect thereto
for the benefit of the Master Collateral Agent and the Secured Parties to the
extent of any related Senior Facility Excess Spread payable to the Master
Collateral Agent hereunder; and
(f) the Master Collateral Agent shall have received an Officer's
Certificate of each of the Borrowers stating that on the date of such
designation and after giving effect to the proposed Senior Facility Agreement,
no condition, event or act which with notice or lapse of time or both will
become a Default or Event of Default has occurred and is continuing.
The Master Collateral Agent shall deliver notice of each designation of an
additional Senior Facility Agreement to each Facility Representative promptly
following its receipt of notice of such designation from the Borrowers.
Section 14 Increase and Decrease of Senior Facility
Notional Amounts.
(a) The Borrowers may increase the Senior Facility Notional Amount
of any Senior Facility Agreement by delivering to the Master Collateral Agent at
least seven Business Days prior to the proposed date of the effectiveness of
such increase a written notice identifying such
- 29 -
agreement and the related proposed increase in the Senior Facility Notional
Amount and by satisfying the following conditions on or before such proposed
date of effectiveness:
(i) at least seven Business Days prior to the proposed date
of the effectiveness of such increase, the Borrowers shall have
delivered to the Master Collateral Agent a certificate calculating the
Senior Borrowing Base as of such date and demonstrating that, after
giving effect to such increase, the sum of the Senior Facility Notional
Amounts with respect to each Senior Facility will not exceed the Senior
Borrowing Base;
(ii) if after giving effect to such increase the Senior
Facility Aggregate Amount would exceed 66-2/3% of the Senior Borrowing
Base, S & P shall have confirmed in writing that amounts due under each
Senior Facility Agreement continue to be rated at least "BBB-"; and
(iii) the Master Collateral Agent shall have received an
Officer's Certificate of each of the Borrowers stating that on the date
of such increase of the applicable Senior Facility Notional Amount and
after giving effect to such increase, no condition, event or act which
with notice or lapse of time or both will become a Default or Event of
Default has occurred and is continuing.
provided, however, that (i) the Senior Facility Notional Amount with respect to
any Senior Facility Agreement which does not provide a revolving facility shall
in no event be increased to an amount in excess of the Senior Facility Notional
Amount with respect to such Senior Facility Agreement on the date such Senior
Facility Agreement was added pursuant to Section 13 hereof unless the
outstanding amount advanced under such Senior Facility Agreement is subsequently
increased and (ii) the Senior Facility Notional Amount with respect to any
Senior Facility Agreement which provides a revolving facility (other than the
Revolving Credit Agreement) shall in no event be increased to an amount in
excess of the product of (x) the Senior Facility Notional Amount with respect to
such Senior Facility Agreement on the date (the "Initial Advance Date") which is
the later of (A) the date such Senior Facility Agreement was added pursuant to
Section 13 hereof and (B) the date the initial advance was made on such Senior
Facility Agreement and (y) a fraction, the numerator of which is the amount
outstanding under such Senior Facility Agreement on the date of such proposed
increase and the denominator of which is the amount advanced under such Senior
Facility Agreement on the Initial Advance Date. The Master Collateral Agent
shall deliver notice of each increase in the Senior Facility Notional Amount of
any Senior Facility Agreement to each Facility Representative promptly following
its receipt of notice of such increase from the Borrowers.
(b) The Borrowers may decrease the Senior Facility Notional Amount
with respect to any Senior Facility Agreement from time to time by providing
prior written notice thereof to each Facility Representative and the Master
Collateral Agent.
Section 15 Addition of Junior Facility Agreements. The
Borrowers may designate an agreement as a Junior Facility Agreement by
delivering to the Master Collateral
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Agent at least seven Business Days prior to the proposed date of the
effectiveness of such designation a written notice identifying such agreement
and by satisfying the following conditions on or before such proposed date of
effectiveness:
(a) the related Junior Facility Representative, the Borrowers and
ACFS shall have delivered to the Master Collateral Agent a Joinder Supplement
relating to such Junior Facility Agreement.
The Master Collateral Agent shall deliver notice of each designation of an
additional Junior Facility Agreement to each Facility Representative promptly
following its receipt of notice of such designation from the Borrowers.
Section 16 Junior Facility Distributions. The Borrowers and
each Junior Facility Representative may agree to amend clause (vi) of Section 6
without the consent of any Senior Creditor or Senior Facility Representative,
provided that S & P shall have consented to such amendment.
Section 17 Subordination.
(a) Subordination of Junior Debt to Senior Debt. The Borrowers
covenant and agree, and the Junior Creditors by their respective acceptance of
the Junior Debt (whether upon original issue or upon transfer or assignment)
likewise covenant and agree, that the payment of any and all of the Junior Debt
shall be subordinate and subject in right of payment, to the extent and in the
manner set forth herein, to the prior payment in full in cash of the Senior Debt
and costs and expenses under Section 6(a)(i) and (iv). Each holder of Senior
Debt, whether now outstanding or hereafter created, incurred, assumed or
guaranteed, shall be deemed to have acquired Senior Debt in reliance upon the
provisions contained in this Agreement.
(b) Proceedings. In the event of any Proceeding involving the
Borrowers: (a) all Senior Debt and costs and expenses under Section 6(a)(i) and
(iv) shall first be paid in full in cash before any payment of or with respect
to the Junior Debt shall be made (other than a distribution of Reorganization
Subordinated Securities if the Junior Creditors, the Senior Creditors and the
Master Collateral Agent shall have entered into such supplements to or
modifications to this Agreement as the Senior Creditors may request to reflect
the continued subordination of the Reorganization Subordination Securities to
the Senior Debt and costs and expenses under Section 6(a)(i) and (iv) (or notes
or other securities issued in substitution of all or a portion thereof) to at
least the same extent as provided herein); (b) any payment or distribution,
whether in cash, property or securities, which, but for the terms hereof,
otherwise would be payable or deliverable in respect of the Junior Debt (other
than a distribution of Reorganization Subordinated Securities if the Junior
Creditors, the Senior Creditors and the Master Collateral Agent shall have
entered into such supplement to or modification to this Agreement as the Senior
Creditors may request to reflect the continued subordination of the
Reorganization Subordinated Securities to the Senior Debt and costs and expenses
under Section 6(a)(i) and (iv) (or notes or other securities issued in
substitution of all or a portion thereof) to at least the same extent as
- 31 -
provided herein), shall be paid or delivered directly to the Master Collateral
Agent for the benefit of each Senior Creditor until all Senior Debt and costs
and expenses under Section 6(a)(i) and (iv) are paid in full, and the Junior
Creditors irrevocably authorize, empower and direct all receivers, trustees,
liquidators, custodians, conservators and others having authority in the
premises to effect all such payments and distributions, and the Junior Creditors
also irrevocably authorize, empower and direct the Master Collateral Agent and
each Senior Creditor to demand ▇▇▇ for, collect and receive every such payment
or distribution; (c) the Junior Creditors agree to execute and deliver to the
Master Collateral Agent and each Senior Facility Representative or their
respective representatives such further instruments confirming the authorization
referred to in the foregoing clause (b) as may be requested by the Master
Collateral Agent or any Senior Facility Representative; (d) the Junior Creditors
agree not to initiate, prosecute or encourage any other person or entity to
initiate or prosecute any claim, action or other proceeding challenging the
validity, priority, extent or enforceability of the Senior Debt or any liens and
security interests securing the Senior Debt; (e) the Junior Creditors agree not
to object to any use of cash collateral by the Borrowers under ▇▇▇▇▇▇▇ ▇▇▇ ▇▇
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Bankruptcy Code permitted by the Senior Facility
Representatives or any borrowing by the Borrowers from the Senior Facility
Representatives or to any grant of a lien or security interest by any person or
entity in favor of the Master Collateral Agent for the benefit of the Senior
Facility Representatives under Section 364 of the United States Bankruptcy Code;
and (f) if the Junior Creditors fail (i) to execute, verify, deliver and file
any proofs of claim in respect of the Junior Debt in connection with any such
Proceeding at least 20 days prior to the expiration of the time to file such
proofs of claim, the Junior Creditors hereby irrevocably authorize, empower and
appoint the Master Collateral Agent (for the benefit of the Senior Facility
Representatives) as its agent and attorney-in-fact to execute, verify, deliver
and file such proofs of claim and (ii) to vote such claim in any such Proceeding
at least 3 days prior to the expiration of the time to vote, the Junior
Creditors hereby irrevocably authorize, empower and appoint the Master
Collateral Agent as its agent and attorney-in-fact to vote any such claim;
provided, however, that the Master Collateral Agent shall have no obligation to
execute, verify, deliver, file and/or vote any such proof of claim. In the event
that the Master Collateral Agent votes any claim in accordance with the
authority granted hereby, the Junior Creditors shall not be entitled to change
or withdraw such vote. The Senior Debt shall continue to be treated as Senior
Debt and the provisions of this Agreement shall continue to govern the relative
rights and priorities of the Senior Facility Representatives, the Master
Collateral Agent and the Junior Creditors even if all or part of the Senior Debt
or the security interests securing the Senior Debt are subordinated, set aside,
avoided or disallowed in connection with any such Proceeding and this Agreement
shall be reinstated if at any time any payment of any of the Senior Debt is
rescinded or must otherwise be returned by any holder of the Senior Debt or any
representative of such holder.
(c) Payment Block Upon Senior Default. The Borrowers may not make
and the Junior Creditors may not receive any payment of principal, interest or
any other amount due with respect to any Junior Debt if at the time of such
payment a Senior Default exists.
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(d) Payments Otherwise Permitted. Nothing contained in this Section
17 or elsewhere in this Agreement or in the Senior Facility Agreements shall
prevent the Borrowers at any time, except during the pendency of any Proceeding
referred to in subsection 17(b) or under the conditions referred to in
subsection 17(c), from making payments, to the extent funds are available
therefor in accordance with the terms of this Agreement, or the Junior Creditors
from receiving payments pursuant to Section 6 of this Agreement on the Junior
Notes.
(e) Restriction on Action by the Junior Creditors. Until the Senior
Debt and costs and expenses under Section 6(a)(i) and (iv) are indefeasibly paid
in full in cash, the Junior Creditors shall not, without the prior written
consent of the Senior Facility Representatives, take any Collection Action with
respect to the Junior Debt, except as permitted in the following sentence. Upon
the acceleration of all of the Senior Debt the Junior Creditors may, upon three
business days prior written notice to the Master Collateral Agent, accelerate
the Junior Debt or take any other Collection Action which is not inconsistent
with or in contravention of, and which does not interfere with, any enforcement
actions by the Master Collateral Agent or any Senior Facility Representative or
the provisions of this Agreement; provided, however, that following the
acceleration of the Senior Debt as described above, if such acceleration is
rescinded, then all Collection Actions taken by the Junior Creditors shall
likewise be rescinded.
(f) Incorrect Payments. If any payment or distribution on account of
the Junior Debt not permitted to be made by the Borrowers or received by the
Junior Creditors under this Agreement is received by the Junior Creditors before
all Senior Debt and costs and expenses under Section 6(a)(i) and (iv) are
indefeasibly paid in full in cash and all lending commitments under the Credit
Agreement have terminated and the Revolving Credit Agreement shall have
terminated, such payment or distribution shall not be commingled with any asset
of the Junior Creditors, shall be held in trust by the Junior Creditors for the
benefit of the Senior Creditors and the Master Collateral Agent and shall be
promptly paid over to the Master Collateral Agent, or its designated
representative, for the benefit of the Senior Creditors and the Master
Collateral Agent.
(g) Sale, Transfer. etc. No Junior Creditor may sell, assign,
pledge, dispose of or otherwise transfer all or any portion of the Junior Debt
or its rights under any Junior Facility Agreement without at least 5 business
days prior written notice to the Master Collateral Agent and unless prior to the
consummation of any such action, the transferee thereof shall execute and
deliver to the Master Collateral Agent either an assumption agreement pursuant
to which such transferee assumes all of the transferring Junior Creditor's
obligations and liabilities under this Agreement, with respect to the portion of
the Junior Debt and Junior Facility Agreements so transferred, or the transferee
executes and delivers to the Master Collateral Agent an agreement identical to
this Agreement (mutatis mutandis), providing for the continued subordination of
the Junior Debt to the Senior Debt as provided herein and for the continued
effectiveness of all of the rights of the Senior Facility Representatives
arising under this Agreement and which reflects the provisions herein concerning
such transfer. Notwithstanding the failure to execute or deliver any such
agreement, the subordination effected hereby shall survive any sale, assignment,
- 33 -
pledge, disposition or other transfer of all or any portion of the Junior Debt,
and the terms of this Agreement shall be binding upon the successors and assigns
of the Junior Creditors.
(h) Legends. Until the Senior Debt is indefeasibly paid in full in
cash and the Senior Facility Agreements have been terminated, the Junior
Facility Agreements at all times shall contain in a conspicuous manner the
following legend:
"This instrument and the rights and obligations evidenced hereby
are subordinate in the manner and to the extent set forth in
that certain Master Collateral and Intercreditor Agreement (the
"Subordination Agreement") dated as of August 15, 2002 among AFS
Funding Corp., AFS SenSub Corp., AmeriCredit Financial Services,
Inc., Deutsche Bank Trust Company Americas, as master collateral
agent, the "Senior Facility Representatives" referenced therein
and the "Junior Facility Representatives" referenced therein, as
amended, supplemented or otherwise modified from time to time;
and each holder of this instrument, by its acceptance hereof,
shall be bound by the provisions of the Subordination
Agreement."
(i) Continued Effectiveness. The Junior Creditors hereby agree that
their obligations hereunder shall be continuing, absolute and unconditional and
not subject to any reduction, limitation, impairment, termination, defense or
recoupment whatsoever by reason of, or be otherwise diminished by, any of the
following: (a) any extension, modification or renewal of, or indulgence with
respect to, or substitution for, the Senior Debt or any part thereof or any
agreement relating thereto at any time; (b) any failure or omission to perfect
or maintain any lien or security interest on, or preserve rights to, any
security or collateral or to enforce any right, power or remedy with respect to
the Senior Debt or any part thereof or any agreement relating thereto, or any
collateral securing the Senior Debt or any part thereof; (c) any waiver of any
right, power or remedy or of any default with respect to the Senior Debt or any
part thereof or any agreement relating thereto or with respect to any collateral
securing the Senior Debt or any part thereof; (d) any release, surrender,
compromise, settlement, waiver, subordination or modification, with or without
consideration, of, any collateral securing the Senior Debt or any part thereof,
any guaranties with respect to the Senior Debt or any part thereof, or any other
obligations of any person or entity with respect to the Senior Debt or any part
thereof; (e) the enforceability or validity of the Senior Debt or any part
thereof or the genuineness, enforceability or validity of any agreement relating
thereto or with respect to any collateral securing the Senior Debt or any part
thereof; (f) any Senior Facility Representative's election, in any case or
proceeding instituted under chapter 11 of the United States Bankruptcy Code, of
the application of section 1111(b)(2) of the United States Bankruptcy Code; (g)
any borrowing, use of cash collateral, or grant of a security interest by the
Borrowers, as debtor in possession, under section 363 or 364 of the United
States Bankruptcy Code; or (h) the disallowance of all or any portion of any of
the Agent's or the Lenders' claims for repayment of the Senior Debt under
section 502 or 506 of the United States Bankruptcy Code. The Senior Facility
Representatives may direct the
- 34 -
Master Collateral Agent to take any action or exercise any remedy with respect
to any Collateral from time to time and at any time in their sole discretion,
without notice to the Junior Creditors. The terms of this Agreement, the
subordination effected hereby, and the rights and the obligations of the Junior
Creditors, the Borrowers, and the Senior Creditors arising hereunder shall not
be affected, modified or impaired in any manner or to any extent by: (a) any
amendment or modification of or supplement to the any Senior Facility Agreement
or any Junior Facility Agreement; (b) the validity or enforceability of any of
such documents; or (c) any exercise or non-exercise of any right, power or
remedy under or in respect of the Senior Debt or the Junior Debt or any of the
instruments or documents referred to in clause (a) above. The Junior Creditors
hereby acknowledge that the provisions of this Agreement are intended to be
enforceable at all times, whether before the commencement of, after the
commencement of, in connection with or premised on the occurrence of a
Proceeding.
(j) No Contest. The Junior Creditors agree that they will not at any
time contest the validity, perfection, priority or enforceability of the Senior
Debt or the Senior Facility Agreements or the rights of the holders of the
Senior Debt in the Collateral hereunder.
Section 18 Term Of Agreement. This Agreement shall be
terminated upon the final indefeasible payment of all Obligations and the
termination of the Senior Facility Agreements and the Junior Facility
Agreements.
Section 19 Notices. All demands, notices and communications
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 on
Schedule I or in the Joinder Supplement by which they became a party hereto,
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 20 GOVERNING LAW; VENUE; CONSENT TO JURISDICTION.
(A) THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE
WITH AND GOVERNED BY THE LAW OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO
ITS CONFLICT OF LAW PROVISIONS (OTHER THAN SECTIONS 5-1401 AND 5-1402 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 COUNTY, NEW YORK. EACH PARTY TO THIS AGREEMENT HEREBY CONSENTS TO
THE JURISDICTION OF SUCH COURT.
Section 21 Assignment. Except as expressly permitted
herein, no party to this Agreement may assign its rights or delegate its
obligations under this Agreement without the express written consent of the
other parties.
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Section 22 Counterparts. For the purpose of facilitating
the 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 original, and together shall constitute and be one and the same
instrument.
Section 23 Headings. The section headings are not part of
this Agreement and shall not be used in its interpretation.
Section 24 Third Party Beneficiaries. It is hereby agreed
by the parties hereto that the Secured Parties are, and are intended to be,
third party beneficiaries under this Agreement with the right to enforce this
Agreement as if such Secured Parties were parties hereto.
Section 25 Defaults; Certain Remedies.
(a) Event of Default. An "Event of Default" shall exist under this
Agreement if there exists an "Senior Default" or "Junior Default". For the
purpose of this Agreement, a "Default" shall mean any occurrence or condition
which, with the giving of notice or the passage of time, or both, would be an
Event of Default. Unless and until the Master Collateral Agent has actual
knowledge that an Event of Default shall have occurred and is continuing, the
Master Collateral Agent shall not take any action under this Agreement except
for the performance of such duties as are specifically set forth herein and
except as may be set forth from time to time in written instructions by the
Required Facility Representatives in accordance with this Agreement, and upon
receipt of such written instruction, the Master Collateral Agent shall give such
notice or direction or exercise such right, remedy or power hereunder as shall
be specified in such instruction.
(b) Notice of Event of Default; Control by Required Facility
Representatives. If the Master Collateral Agent has actual knowledge that an
Event of Default shall have occurred, the Master Collateral Agent shall give
prompt notice thereof to each Facility Representative; and if and for so long as
the Master Collateral Agent shall not have actual knowledge that such Event of
Default shall no longer be continuing, the Master Collateral Agent shall
exercise such rights, powers and remedies (whether vested in it by this
Agreement or by law or in equity or by statute or otherwise) for the protection
and enforcement of its rights under this Agreement as the Master Collateral
Agent may be directed in writing by the Required Facility Representatives in
accordance with this Agreement, and in such exercise shall use the same degree
of care and skill as a prudent person would use under the circumstances in the
conduct of such person's own affairs. The Required Facility Representatives, by
an instrument or instruments in writing executed and delivered to the Master
Collateral Agent, shall have the right to direct the method and place of
conducting the action to be taken by the Master Collateral Agent in connection
with the protection and enforcement of the Master Collateral Agent's rights
under this Agreement.
(c) Default Remedies. If any one or more Events of Default exist and
shall be continuing, the Master Collateral Agent shall have the right to proceed
to protect and enforce its
- 36 -
rights hereunder by exercising all or any of the rights and remedies available
to it under applicable law (either by suit in equity or by action at law or by
any other appropriate proceeding) and all or any of the rights and remedies
conferred in this Agreement, whether for the specific performance of any
covenant or agreement herein or therein contained or in execution or aid of any
power herein or therein granted, or for foreclosure thereunder, in such order as
the Master Collateral Agent may determine in its sole discretion (subject to the
direction of the Required Facility Representatives pursuant to Section 25(b)).
No power, right or remedy conferred on the Master Collateral Agent in this
Agreement is intended to be exclusive of any other right, power or remedy and
each and every right and remedy shall be cumulative and shall be in addition to
every other right or remedy given herein or now or hereafter existing at law or
in equity or by statute or otherwise. The Master Collateral Agent shall, at the
written direction of the Required Facility Representatives, also do one or more
of the following (subject to Section 12 hereof):
(i) institute proceedings in its own name and on behalf of
the Secured Parties as Master Collateral Agent for the collection of all
amounts then payable on the Senior Debt and/or the Junior Debt with
respect thereto, whether by declaration or otherwise, enforce any
judgment obtained, and collect from the Borrowers and any other obligor
upon such debt moneys adjudged due;
(ii) institute proceedings from time to time for the complete
or partial foreclosure upon the Collateral;
(iii) 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 Master Collateral Agent and the Secured Parties; and
(iv) sell the 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.
(d) Bankruptcy Proceeding. If there shall be pending a case or
proceedings in bankruptcy with respect to, or for the reorganization or
arrangement of, any Borrower under any bankruptcy or insolvency law or in case a
conservator, liquidator, custodian, receiver or trustee shall have been
appointed for any Borrower or any of the Collateral, the Master Collateral Agent
may, but, unless requested in writing by the Required Facility Representatives,
shall not (subject to Section 25(b)) be obligated 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 Secured Parties allowed in such case or proceeding for the
Obligations at the date of the institution of such case or proceeding, and for
any additional amounts that may become due and payable under any of the Senior
Facility Agreements or Junior Facility Agreements or other document or
instrument creating or evidencing any Obligation after such date and to
otherwise protect and assert its rights, liens and security interests in, under
and to the Collateral. The Master Collateral Agent may, but, unless requested in
writing by the Required Facility Representatives, shall not (subject to Section
25(b))
- 37 -
be obligated to, and unless prohibited by applicable law and regulations, vote
(as directed by the Required Facility Representatives) on behalf of the Secured
Parties in any election of a trustee, a standby trustee or person performing
similar functions in any such case or proceeding. No provision of this Agreement
shall be deemed to authorize the Master Collateral Agent to authorize or consent
to or accept or adopt on behalf of any Secured Party any plan of reorganization,
arrangement, adjustment or composition affecting the Senior Debt or the Junior
Debt or the rights of any Secured Party or to authorize the Master Collateral
Agent to vote in respect of the claim of any Secured Party in any such
proceeding.
(e) Delay or Omission; No Waiver. No course of dealing or failure or
delay by the Master Collateral Agent in exercising any right, power or remedy
shall impair such right, power or remedy or operate as a waiver thereof or
otherwise prejudice the Master Collateral Agent's rights, powers and remedies.
Every right and remedy given hereby, by any other document or instrument
creating or evidencing any Obligation or by law to the Master Collateral Agent
may be exercised from time to time as often as may be deemed expedient by the
Master Collateral Agent.
(f) Restoration of Rights and Remedies. If the Master Collateral
Agent shall have instituted any proceeding to enforce any right or remedy under
this Agreement and such proceeding shall have been discontinued or abandoned for
any reason, or shall have been determined adversely to the Master Collateral
Agent, then and in every such case the Master Collateral Agent, the Borrowers
and 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 Master Collateral Agent shall continue
as though no such proceeding had been instituted.
(g) Application of Proceeds. The proceeds of any exercise of rights
with respect to the Collateral, or any part thereof, shall be paid to and
applied as follows:
(i) FIRST, to the payment of (i) costs and expenses of
foreclosure or suit, if any, and of any sale, and of all proper
expenses, liabilities and advances, including legal expenses and
reasonable attorneys' fees, incurred or made hereunder by the Master
Collateral Agent, (ii) any fees, expenses, disbursements, advances or
liabilities due and unpaid to the Master Collateral Agent under Section
8 and (iii) all taxes, assessments or liens superior to the liens
hereunder, except any taxes, assessments or other superior lien subject
to which such sale may have been made;
(ii) SECOND, to the payment of all accrued and unpaid
interest on the Senior Debt and, in case such proceeds shall be
insufficient to pay in full such amounts so unpaid, then ratably
according to the aggregate accrued and unpaid interest under each Senior
Facility Agreement;
(iii) THIRD, to the payment of the principal outstanding on
the Senior Debt and, in case such proceeds shall be insufficient to pay
such principal amounts in full, then
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ratably according to the unpaid principal amounts with respect to each
Senior Facility Agreement; and
(iv) FOURTH, to the payment of any other amounts accrued and
unpaid with respect to the Senior Debt and, in case such proceeds shall
be insufficient to pay such amounts in full, then ratably according to
the outstanding amounts under each Senior Facility Agreement; and
(v) FIFTH, to the payment of all accrued and unpaid interest
on the Junior Debt and, in case such proceeds shall be insufficient to
pay in full such amounts so unpaid, then ratably according to the
aggregate accrued and unpaid interest under each Junior Facility
Agreement;
(vi) SIXTH, to the payment of the principal outstanding on
the Junior Debt and, in case such proceeds shall be insufficient to pay
such principal amounts in full, then ratably according to the Junior
Facility Outstanding Amounts under each Junior Facility Agreement; and
(vii) SEVENTH, to the payment of any other amounts accrued and
unpaid with respect to the Junior Debt and, in case such proceeds shall
be insufficient to pay such amounts in full, then ratably according to
the outstanding amounts under each Junior Facility Agreement; and
the surplus, if any, shall be paid to the Borrowers, its or their successors and
assigns, or to whomsoever may be lawfully entitled to receive the same.
(h) Limitations on Suits. Anything contained herein to the contrary
notwithstanding, no Facility Representative shall have the right to institute
any suit, action or proceeding at law or in equity, for the execution of any
trust or power hereof or for any other remedy under or upon this Agreement,
unless:
(i) such Facility Representative shall have previously given
the Master Collateral Agent written notice of the occurrence of an Event
of Default;
(ii) the Required Facility Representatives shall have made
written request upon the Master Collateral Agent to exercise such powers
or enforce such remedies or institute such action, suit or proceeding in
its own name; and
(iii) the Master Collateral Agent shall have refused or failed
to comply with such request for a period of 10 days after such written
request shall have been received by it.
Such notification, request, and refusal or omission are hereby declared,
in every case, to be conditions precedent to the exercise by any Facility
Representative of any remedy hereunder;
- 39 -
it being understood and intended that no one or more of the Facility
Representatives shall have any right in any manner whatever by his or their
action to enforce any right under this Agreement, except in the manner herein
provided, and that all judicial proceedings to enforce any provision hereof
shall be instituted, had and maintained in the manner herein provided and for
the benefit of all Secured Parties, as provided for herein.
(i) Sharing.
(i) Remittance of Proceeds of Collateral. If any Secured
Party shall obtain any cash proceeds of the Collateral otherwise than
through a distribution from the Master Collateral Agent pursuant to the
terms hereof, then such Secured Party shall, promptly after receipt
thereof, remit, or cause the related Facility Representative to remit,
such cash proceeds to the Master Collateral Agent. The Master Collateral
Agent shall, promptly after receipt of such cash proceeds, disburse the
amount so remitted to it as provided in Section 25(g), in the order of
priority set forth therein. Any such cash proceeds shall not be deemed
to have satisfied any obligations in respect of which it was originally
received by such Secured Party but rather shall be deemed to have
satisfied, to the extent of the amount of such proceeds, the obligations
to which such cash proceeds are applied as provided for in Section
25(g).
(ii) Return of Proceeds. If any Secured Party that has
remitted cash proceeds of Collateral to the Master Collateral Agent
pursuant to the preceding paragraph (i) shall thereafter be required to
repay such proceeds to the original payor thereof, such Secured Party
shall have a lien on the Collateral, prior to the lien securing the
Obligations, securing the repayment of the proceeds so remitted to the
Master Collateral Agent (less any portion thereof distributed to such
Secured Party pursuant to 25(g)), provided that, upon request by such
Secured Party to the Master Collateral Agent, the Master Collateral
Agent shall request each Facility Representative to whom such proceeds
were disbursed to remit such proceeds to the Master Collateral Agent and
each Facility Representative shall promptly comply with such request.
(iii) Sharing. Except as otherwise provided in paragraph (i)
and (ii), if any Secured Party shall obtain any Collateral, proceeds of
Collateral or any other property as security for the payment of any
Obligation held by it, such Secured Party shall promptly thereafter take
such actions as shall be necessary to transfer such property to the
Master Collateral Agent as security for all of the Obligations or
otherwise to share equitably the benefit of such property with all
Secured Parties.
(j) In any proceedings brought by the Master Collateral Agent to
enforce the Liens hereunder (and also any proceedings involving the
interpretation of any provision hereof), the Master 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.
- 40 -
Section 26 Limited Liability of Master Collateral Agent.
It is expressly understood and agreed by the parties hereto that (a)
this Agreement is executed and delivered by Deutsche Bank Trust Company
Americas, not individually or personally but solely as Master Collateral Agent,
in the exercise of the powers and authority conferred and vested in it, (b) the
representations, undertakings and agreements herein made on the part of the
Master Collateral Agent are made and intended not as personal representations,
undertakings and agreements by Deutsche Bank Trust Company Americas, but are
made and intended for the purpose of binding only the Master Collateral Agent,
and (c) under no circumstances shall Deutsche Bank Trust Company Americas be
personally liable for the payment of any indebtedness or expenses of the Master
Collateral Agent or be liable for the breach or failure of any obligation,
representation, warranty or covenant made or undertaken by the Master Collateral
Agent under this Agreement.
Section 27 Amendments. The Required Senior Facility
Representatives, the Required Junior Facility Representatives, the Master
Collateral Agent, ACFS and the Borrowers may, from time to time, enter into
written amendments, supplements, modifications, waivers and consents of or to
this Agreement; provided, however, that:
(a) S & P shall have confirmed in writing that such
amendment, supplement, modification, waiver or consent will not result in the
reduction or withdrawal of any rating on any Senior Facility Agreement;
(b) no such amendment, supplement, modification, waiver or
consent shall, (i) amend Section 6 in a manner adverse to the parties to the
Senior Facility Agreements or change the definition of "Required Senior Facility
Representatives" without the consent of all Senior Facility Representatives,
(ii) amend Section 6 in a manner adverse to the parties to the Junior Facility
Agreements or change the definition of "Required Junior Facility
Representatives" without the consent of all Junior Facility Representatives,
(iii) release all or any part of the Collateral without the consent of each
Facility Representative, or (iv) change the provisions of this Section 27 or
change the definition of "Required Facility Representatives" without the consent
of each Facility Representative; and
(c) without the written consent of the Master Collateral
Agent, no such amendment, supplement, modification or waiver shall amend, modify
or waive any provision of Section 11 or 12 or otherwise change any of the rights
or obligations of the Master Collateral Agent hereunder or reduce the rate of,
or extend the date of payment for, any fee payable to the Master Collateral
Agent hereunder.
- 41 -
Any such amendment, supplement, modification or waiver shall
apply equally to each of the Secured Parties and shall be binding the Secured
Parties, the Facility Representatives, the Master Collateral Agent, the
Borrowers and ACFS. In the case of any waiver, the parties shall be restored to
their former position and rights hereunder to the extent provided for in such
waiver. This Agreement may not be amended orally or by any course of conduct.
[Signature Page Follows]
- 42 -
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.
DEUTSCHE BANK TRUST COMPANY AMERICAS,
not in its individual capacity but
solely as Revolver Administrative Agent and
Revolver Collateral Agent
By:
---------------------------------------------
Name:
Title:
By:
---------------------------------------------
Name:
Title:
AFS FUNDING CORP.
By:
---------------------------------------------
Name:
Title:
AFS SENSUB CORP.
By:
---------------------------------------------
Name:
Title:
AMERICREDIT FINANCIAL SERVICES, INC.
By:
---------------------------------------------
Name:
Title:
- 43 -
DEUTSCHE BANK TRUST COMPANY AMERICAS,
not in its individual capacity but solely as
Master Collateral Agent
By:
---------------------------------------------
Name:
Title:
By:
---------------------------------------------
Name:
Title:
[Signature Page to Master Collateral and Intercreditor Agreement]
- 44 -
EXHIBIT A
FORM OF JOINDER SUPPLEMENT
EXHIBIT B
FORM OF SENIOR BORROWING BASE CERTIFICATE
EXHIBIT C
FORM OF MCA SERVICER'S CERTIFICATE
SCHEDULE I
NOTICE ADDRESSES
ANNEX 1
CALCULATION OF SENIOR BORROWING BASE
The Senior Borrowing Base will be determined based on a cash flow model
calculated as set forth below. ACFS will initially make each calculation (or
engage a Person to make such calculation on its behalf) of the Senior Borrowing
Base, and the Master Collateral Agent will confirm each such calculation.
S & P will provide "Modeling Assumptions" (described below) for each Designated
Term Series at or before closing. Upon each addition to the Designated Term
Series, S & P will provide Modeling Assumptions for the additional Series. S & P
will provide revised Modeling Assumptions if necessary.
The "Modeling Assumptions" will be, collectively, the Expected Cumulative Loss
Expectation, Loss Multiple, the Loss Horizon and the Additional Modeling
Assumptions.
The model inputs will be based on (i) collateral and bond information as for the
last available month for all outstanding Designated Term Series and (ii) the
collateral and bond information for an additional Designated Term Series after
pricing described under the headings "Collateral Characteristics" and
"Securities Characteristics" below.
The following lists details the inputs and modeling assumptions to be included
in the calculation of the Senior Borrowing Base:
Collateral Characteristics:
With respect to each Designated Term Series, the weighted average coupon,
weighted average original maturity, weighted average remaining maturity and the
total pool outstanding will be provided by the Borrowers. (For a new Designated
Term Series with a pre-funding account, the collateral characteristics described
in the offering documents for such Series will be used with respect to the full
face amount of such Designated Term Series for modeling purposes.)
Securities Characteristics
The Borrowers will provide (a) the weighted average coupon on all outstanding
notes and certificates to be issued under such Designated Term Series, which
shall be calculated based on amounts outstanding as of (i) for outstanding
Designated Term Series, the last amount outstanding as of the related
calculation date and (ii) for the new Designated Term Series, the amounts and
coupons to be in effect on the closing date of such Designated Term Series
(assuming the full face amount of such notes and certificates for modeling
purposes) and (b) the outstanding face amount of all such outstanding notes and
certificates.
Expected Cumulative Loss Expectation
Initially, for all Designated Term Series, the Expected Cumulative Loss
Expectation is 10.5%.
Actual Losses to Date
ACFS will provide, on a monthly basis, actual realized losses for each
Designated Term Series.
Expected Remaining Losses
Expected Remaining Losses, individually for each Designated Term Series, will
equal the Expected Cumulative Loss Expectation minus Actual Losses to Date.
Senior Loss Multiple
Initially, the Senior Loss Multiple will be 1.8.
Loss Horizon
Initially, the Loss Horizon will be:
Months % of Total Remaining Losses
------ ---------------------------
1 - 12 40%
13 - 24 40%
25 - 36 20%
Transactions seasoned less than 12 months - the original loss assumption for
months 13-36 will still apply; the remaining losses to come will be spread
evenly over the remaining months in the first year and will equal the difference
of (i) the product of (a) the Expected Cumulative Loss Expectation and (b) the
original collateral balance plus any pre-funding and (ii) the sum of (a) the net
cumulative losses to date and (b) net cumulative losses allocated to months
13-36.
Transactions seasoned between 12 and 24 months - the original loss assumption
for months 25-36 will still apply; the remaining losses to come will be spread
evenly over the remaining months in the second year and will equal the
difference of (i) the product of (a) the Expected Cumulative Loss Expectation
and (b) the original collateral balance plus any pre-funding and (ii) the sum of
(a) the net cumulative losses to date and (b) net cumulative losses allocated to
months 25-36.
- 2 -
Transactions seasoned over 24 months - the remaining losses to come will be
spread evenly over the next 12 months and will equal the difference of (i) the
product of (a) the Expected Cumulative Loss Expectation and (b) the original
collateral balance plus any pre-funding and (ii) the net cumulative losses to
date.
Senior Sub Transactions
Initially the Senior Sub Transactions will be comprised of the following Term
securitizations:
AmeriCredit Automobile Receivables Trust 2000-1
AmeriCredit Automobile Receivables Trust 2001-1
AmeriCredit Automobile Receivables Trust 2002-1
Senior Borrowing Base Calculation
Using the Modeling Assumptions for each Designated Term Series and applying the
Senior Loss Multiple to the Expected Remaining Losses, a schedule of monthly
cash flows will be determined.
A schedule (the "FSA Scheduled Cash Flows") of aggregate monthly residual cash
flows for the Designated FSA Series for the period from the date of
determination to the date which is 60 months after such date of determination
will be determined assuming a trigger event occurs under the related Series
Transaction Documents occurs immediately and cash is withheld until such time as
trigger event is satisfied.
A schedule (the "Other Wrapped Scheduled Cash Flows") of aggregate monthly
residual cash flows for the Designated Non-FSA Series for the period from the
date of determination to the date which is 60 months after such date of
determination will be determined assuming the most stringent trigger events
occur immediately.
The Senior Borrowing Base will be the sum of (a) aggregated schedules of
residual cash flows from the Senior Sub Transactions for the period from the
date of determination to the date which is 60 months after such date of
determination, the FSA Scheduled Cash Flows and the Other Wrapped Scheduled Cash
Flows and (b) the outstanding principal amount of BBB/Baa2 rated Asset Backed
Securities each of which meet the criteria for "Eligible Security" under the
Revolver Credit Agreement but are not pledged to the Revolver Collateral Agent
and are pledged to the Master Collateral Agent and (c) cash and A-1/P1 rated
investments held by the Master Collateral Agent as Collateral hereunder.
Additional Modeling Assumptions
- 3 -
Prepayment Speed 1.3% ABS
Recovery % 45%
Recovery Lag 0 months (all deals seasoned)
Servicing Fee 2.25%
FSA Premium 0.25%
FSA Default Premium 0.50%
Reinsurance Premium 4.50%
Spread Account Reinvestment % 1.50%
Call % 0%
For transactions with floating rate tranches, the underlying deal employs in the
structure either an interest rate cap or interest rate swap. If the tranche
benefits from an interest rate cap, Libor will be stressed to a BBB- level as
determined by S & P. If the tranche benefits from an interest rate swap, the
swap rate will be used.
All other modeling assumptions were based on each deal's structure (i.e., bond
coupons, spread account %'s, etc...) and June 2002 distribution data (i.e.,
current pool balance, current losses, etc...)
- 4 -
Table of Contents
Page
----
SECTION 1 DEFINITIONS........................................................ 2
SECTION 2 APPOINTMENT OF MASTER COLLATERAL AGENT............................. 15
SECTION 3 BORROWERS' GRANT OF SECURITY INTEREST.............................. 15
SECTION 4 BORROWERS REMAIN LIABLE............................................ 17
SECTION 5 COVENANTS REGARDING THE COLLATERAL................................. 17
SECTION 6 DISTRIBUTIONS...................................................... 21
SECTION 7 THE COLLATERAL ACCOUNT; INVESTMENTS................................ 22
SECTION 8 FEES AND EXPENSES.................................................. 24
SECTION 9 REPRESENTATIONS AND WARRANTIES OF THE MASTER COLLATERAL AGENT...... 25
SECTION 10 RESIGNATION BY AND REMOVAL OF THE MASTER COLLATERAL AGENT;
SUCCESSOR MASTER COLLATERAL AGENT............................................. 25
SECTION 11 INDEMNITY......................................................... 26
SECTION 12 LIMITATIONS OF LIABILITY.......................................... 27
SECTION 13 ADDITION OF SENIOR FACILITY AGREEMENTS............................ 29
SECTION 14 INCREASE AND DECREASE OF SENIOR FACILITY NOTIONAL AMOUNTS......... 29
SECTION 15 ADDITION OF JUNIOR FACILITY AGREEMENTS............................ 30
SECTION 16 JUNIOR FACILITY DISTRIBUTIONS..................................... 31
SECTION 17 SUBORDINATION..................................................... 31
i
Table of Contents
(Continued)
Page
----
SECTION 18 TERM OF AGREEMENT................................................. 35
SECTION 19 NOTICES........................................................... 35
SECTION 20 GOVERNING LAW; VENUE; CONSENT TO JURISDICTION..................... 35
SECTION 21 ASSIGNMENT........................................................ 35
SECTION 22 COUNTERPARTS...................................................... 36
SECTION 23 HEADINGS.......................................................... 36
SECTION 24 THIRD PARTY BENEFICIARIES......................................... 36
SECTION 25 DEFAULTS; CERTAIN REMEDIES........................................ 36
SECTION 26 LIMITED LIABILITY OF MASTER COLLATERAL AGENT...................... 41
SECTION 27 AMENDMENTS........................................................ 41
EXHIBITS
A Form of Joinder Supplement
B Form of Senior Borrowing Base Certificate
C Form of MCA Servicer's Certificate
SCHEDULES
I Notice Addresses
ANNEXES
1 Calculation of Senior Borrowing Base
ii