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REPLACEMENT CASH COLLATERAL ACCOUNT AGREEMENT,
dated as of October 14, 1999
among
AFS FUNDING CORP.,
FINANCIAL SECURITY ASSURANCE INC.,
CREDIT SUISSE FIRST BOSTON, NEW YORK BRANCH, as Administrative Agent,
and
BANK ONE, N.A., as Collateral Agent
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TABLE OF CONTENTS
PAGE
<S> <C>
RECITALS 1
AGREEMENTS 1
ARTICLE I DEFINITIONS................................................................................2
Section 1.01. Definitions...........................................................................2
ARTICLE II REIMBURSEMENT AGREEMENT; DRAW LIMIT.......................................................10
Section 2.01. Agreement to Reimburse...............................................................10
Section 2.02. Priority of Other Loss Protection....................................................11
Section 2.03. RCCA Draw Limit......................................................................12
Section 2.04. Term of Reimbursement Obligation.....................................................12
Section 2.05. Recoveries...........................................................................13
ARTICLE III SECURITY INTERESTS; THE COLLATERAL........................................................14
Section 3.01. Grant of Security Interest by the Seller.............................................14
Section 3.02. Perfection...........................................................................14
Section 3.03. The Seller Remains Liable............................................................15
Section 3.04. Security Intermediary................................................................15
Section 3.05. Maintenance of Collateral............................................................16
Section 3.06. Termination and Release of Rights....................................................16
ARTICLE IV REPLACEMENT CASH COLLATERAL ACCOUNTS......................................................17
Section 4.01. Establishment of RCCAs, Initial Deposits into RCCAs..................................17
Section 4.02. Investments..........................................................................18
Section 4.03. Distributions; Priority of Payments..................................................19
Section 4.04. General Provisions Regarding RCCAs...................................................19
Section 4.05. Reports by the Collateral Agent......................................................20
Section 4.06. RCCA Supplements.....................................................................20
ARTICLE V THE COLLATERAL AGENT......................................................................20
Section 5.01. Appointment and Powers...............................................................21
Section 5.02. Performance of Duties................................................................21
Section 5.03. Limitation on Liability..............................................................21
Section 5.04. Reliance upon Documents..............................................................22
Section 5.05. Successor Collateral Agent...........................................................22
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TABLE OF CONTENTS
(CONTINUED)
PAGE
Section 5.06. Indemnification......................................................................23
Section 5.07. Compensation and Reimbursement.......................................................24
Section 5.08. Representations and Warranties of Bank One...........................................24
Section 5.09. Waiver of Setoffs....................................................................24
Section 5.10. Control by Financial Security........................................................25
ARTICLE VI COVENANTS OF THE SELLER...................................................................25
Section 6.01. Preservation of Collateral...........................................................25
Section 6.02. Opinions as to Collateral............................................................25
Section 6.03. Waiver of Stay or Extension Laws; Marshaling of Assets...............................26
Section 6.04. Noninterference, etc.................................................................26
Section 6.05. Seller Changes.......................................................................26
ARTICLE VII REMEDIES UPON DEFAULT.....................................................................27
Section 7.01. Remedies upon a Foreclosure Event of Default.........................................27
Section 7.02. Waiver of Default....................................................................27
Section 7.03. Restoration of Rights and Remedies...................................................27
Section 7.04. No Remedy Exclusive..................................................................27
ARTICLE VIII MISCELLANEOUS.............................................................................28
Section 8.01. Further Assurances...................................................................28
Section 8.02. Waiver...............................................................................28
Section 8.03. Amendments, Waivers..................................................................28
Section 8.04. Severability.........................................................................28
Section 8.05. Notices..............................................................................28
Section 8.06. Term of this Agreement...............................................................30
Section 8.07. Assignments: Third-Party Rights; Reinsurance.........................................30
Section 8.08. Consent of Financial Security........................................................31
Section 8.09. Trial by Jury Waived.................................................................31
Section 8.10. Governing Law........................................................................31
Section 8.11. Consents to Jurisdiction.............................................................31
Section 8.12. Counterparts.........................................................................32
Section 8.13. Headings.............................................................................32
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TABLE OF CONTENTS
(CONTINUED)
PAGE
Section 8.14. Notices to Administrative Agent......................................................32
Section 8.15. Disclaimer of Fiduciary Duty.........................................................32
</TABLE>
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<PAGE>
REPLACEMENT CASH COLLATERAL ACCOUNT AGREEMENT, dated as of October 14,
1999 (the "AGREEMENT"), by and among FINANCIAL SECURITY ASSURANCE INC., a New
York stock insurance company ("FINANCIAL SECURITY"), AFS FUNDING CORP., a
Nevada corporation (the "SELLER"), CREDIT SUISSE FIRST BOSTON, NEW YORK
BRANCH, as agent for the Lenders party to the Credit Agreement referred to
below (in such capacity, the "ADMINISTRATIVE AGENT"), and BANK ONE, N.A., a
national banking association ("BANK ONE"), as Collateral Agent (together with
its successors in such capacity, the "COLLATERAL AGENT").
RECITALS
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1. The Seller has requested that Financial Security issue the Series
1999-D Policy to the related Trustee to guarantee payment of the Scheduled
Payments (as defined in such Policy) in respect of the Series 1999-D Notes.
2. It is contemplated that the Seller may sell additional pools of
receivables to issuers other than the Series 1999-D Issuer, and that any such
issuer may issue additional series of notes or certificates and that
Financial Security in its discretion may issue additional Policies with
respect to certain guaranteed distributions on the corresponding additional
Series of notes or certificates.
3. As a condition to issuing the Series 1999-D Policy, Financial
Security has required, and as a condition to issuing future Policies,
Financial Security may require, that the Seller deposit cash (each an
"INITIAL SPREAD ACCOUNT DEPOSIT", and collectively, the "INITIAL SPREAD
ACCOUNT DEPOSITS") in a spread account (each a "SPREAD ACCOUNT", and
collectively, the "SPREAD ACCOUNTS") maintained with the related Trustee.
4. In order to reduce the amount which the Seller is obligated to
advance as an Initial Spread Account Deposit with respect to the Series
1999-D Notes and certain future series of notes or certificates with respect
to which RCCAs (as hereinafter defined) are established, the Seller intends
to deposit certain moneys on or about the closing date for each such Series
(each a "RCCA DEPOSIT", and collectively, the "RCCA DEPOSITS") in a cash
collateral account (each, an "RCCA", and collectively, the "RCCAS")
established hereunder to provide credit support to Financial Security.
5. Pursuant to the Credit Agreement, dated as of the date hereof (as
amended, supplemented or otherwise modified from time to time, the "CREDIT
AGREEMENT"), among the Seller, AmeriCredit Financial Services Inc., a
Delaware corporation, AmeriCredit Corp., a Texas corporation, AmeriCredit
Management Company, a Delaware corporation, Bankers Trust Company, as lender
collateral agent, the Lenders parties thereto, and the Administrative Agent,
the Lenders shall finance the Series 1999-D RCCA Deposit, and from time to
time hereafter shall finance future RCCA Deposits, by making advances to the
Seller.
AGREEMENTS
----------
In consideration of the premises, and for other good and valuable
consideration, the adequacy, receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
<PAGE>
ARTICLE I
DEFINITIONS
Section 1.01. DEFINITIONS. (a) The term "RELATED" is used herein to
mean entities, documents, obligations, assets and other matters pertaining to
the same Series (as defined below) of AmeriCredit Notes (as defined below).
Any capitalized term used herein but not defined herein shall have the
meaning given to such term in the Subordination Agreement (as defined below)
or, if not defined therein shall have the meaning with respect to any
AmeriCredit Notes issued under an Indenture, a Pooling and Servicing
Agreement or other agreement, given to such term in such Indenture (and the
related Sale and Servicing Agreement), such Pooling and Servicing Agreement
or such other agreement, as applicable, or, if not defined in such issuing
agreement, shall have the meaning given to such term in the Spread Account
Agreement (as defined below) or the Series Supplement (as defined below). The
terms "HEREOF," "HEREIN" or "HEREUNDER," unless otherwise modified by more
specific reference, shall refer to this Agreement in its entirety. Unless
otherwise indicated in context, the terms "ARTICLE," "SECTION," "APPENDIX,"
"EXHIBIT" or "ANNEX" shall refer to an Article or Section of, or Appendix,
Exhibit or Annex to, this Agreement. The definition of a term shall include
the singular, the plural, the past, the present, the future, the active and
the passive forms of such term; PROVIDED that each term that is defined
differently with respect to one or more specific Series of AmeriCredit Notes,
shall have the separate meanings applicable with respect to each Series of
AmeriCredit Notes.
(b) The following terms shall have the following respective meanings:
"ADMINISTRATIVE AGENT" has the meaning specified in the preamble.
"AMERICREDIT NOTES" means the Notes and the Other AmeriCredit Notes,
collectively.
"AMERICREDIT POLICIES" means the Policies and the Other AmeriCredit
Policies, collectively.
"AMERICREDIT POLICY" means any of the Policies and the Other
AmeriCredit Policies.
"AUTHORIZED OFFICER" means, (i) with respect to Financial Security,
the Chairman of the Board, the President, the Executive Vice President, the
Chief Operating Officer, the Chief Executive Officer or any Managing Director
of Financial Security, (ii) with respect to the Collateral Agent and the
Administrative Agent, any Vice President, Authorized Signer or Trust Officer
thereof, and (iii) with respect to the Seller, the President, CFO, Treasurer
or any Vice President thereof.
"BANK ONE" means Bank One, NA, a national banking association and
its successors.
"CLAIM" means any amount payable by Financial Security under any of
the AmeriCredit Policies. "CLAIM" shall not include any amount expressly
excluded from the definition of "LOSS EXPENSES."
"COLLATERAL" means collectively all collateral pledged under Section
3.01 of this Agreement.
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"COLLATERAL AGENT" means Bank One (and any other Person designated
as "COLLATERAL AGENT" with respect to a Series pursuant to an RCCA
Supplement) in its capacity as collateral agent on behalf of Financial
Security and as agent for the Lender Collateral Agent pursuant to Section
8.15 until a successor Person shall have become a Collateral Agent pursuant
to Section 5.05(d) hereof, and thereafter "COLLATERAL AGENT" shall also mean
such successor Person.
"DISTRIBUTION DATE" means the fifth day of each calendar month, or,
if such day is not a Business Day, the immediately following Business Day;
PROVIDED, that such day shall in no event be earlier than the third Business
Day of such calendar month.
"DRAW LIMIT" has the meaning set forth in Section 2.03.
"EFFECTIVE DATE" means, with respect to any RCCA or any reinsurance,
the earliest date upon which such RCCA or such reinsurance could be drawn in
accordance with its terms, which shall be the earliest date upon which the
related Policy could be drawn in accordance with its terms, unless expressly
provided otherwise.
"ELIGIBLE ACCOUNT" means a segregated trust account that (i) is
either (x) maintained with a depository institution or trust company the
long-term unsecured debt obligations of which are rated "AA" or higher by
Standard & Poor's and "Aa2" or higher by Moody's, or (y) maintained with a
depository institution or trust company the commercial paper or other
short-term unsecured debt obligations of which are rated "A-1+" by Standard &
Poor's and "P-1" by Moody's and (ii) in either case, such depository
institution or trust company shall have been specifically approved by
Financial Security, acting in its discretion, by written notice to the
Collateral Agent.
"ELIGIBLE INVESTMENTS" means book-entry securities, negotiable
instruments or securities represented by instruments in bearer or registered
from which evidence:
(a) direct obligations of, and obligations fully guaranteed
as to timely payment by, the United States of America;
(b) demand deposits that are fully insured by the Federal
Deposit Insurance Corporation, time deposits (whether or not insured
by the Federal Deposit Insurance Corporation) or certificates of
deposit that are fully insured by the Federal Deposit Insurance
Corporation of any depository institution or trust company
incorporated under the laws of the United States of America or any
state thereof or the District of Columbia (or any domestic branch of
a foreign bank) and subject to supervision and examination by
federal or state banking or depository institution authorities
(including depository receipts issued by any such institution or
trust company as custodian with respect to any obligations referred
to in clause (a) above or portion of such obligations for the
benefit of the holders of such depository receipts); PROVIDED,
however, that at the time of the investment or contractual commitment
to invest therein (which shall be deemed to be made again each time
funds are reinvested following each Distribution Date), the commercial
paper or other short-term senior unsecured debt obligations (other
than such obligations the rating of which is based on the credit of
a Person other than such
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depository institution or trust company) of such depository
institution or trust company shall have a credit rating from
Standard & Poor's of A-1 and from Moody's of P-1;
(c) commercial paper and demand notes investing solely in
commercial paper having, at the time of the investment or contractual
commitment to invest therein, a rating from Standard & Poor's A-1 and
from Moody's of P-1;
(d) investments in money market funds having a rating from
Standard & Poor's of AAA-m or AAAm-G and from Moody's of Aaa;
(e) bankers' acceptances issued by any depository institution
or trust company referred to in clause (b) above;
(f) repurchase obligations with respect to any security that
is a direct obligation of, or fully guaranteed by, the United States
of America or any agency or instrumentality thereof of obligations of
which are backed by the full faith and credit of the United States of
America, in either case entered into with a depository institution or
trust company (acting as principal) referred to in clause (b) above;
and
(g) any other investment which has been approved by the
Administrative Agent (to the extent Borrowings are outstanding under
the Credit Agreement) and Financial Security.
"EXCESS" means, with respect to any Loss Protection and any other
Loss Protection, that such Loss Protection shall not be drawn upon, paid,
deducted from or otherwise applied to obligations, losses or potential
losses, until such other Loss Protection has been fully drawn, fully paid,
deducted in full or otherwise fully applied to obligations, losses or
potential losses and, with respect to any specified source of
Indemnification, that such Loss Protection shall be fully indemnified or
otherwise made whole under the terms of such Loss Protection from such source
of Indemnification before any reimbursement, indemnification, repayment or
recovery from such source of Indemnification is paid or applied to such other
Loss Protection.
"FINAL TERMINATION DATE" means, with respect to any Series, the date
that is the later of (i) the Insurer Termination Date with respect to such
Series and (ii) the Lender Termination Date with respect to such Series.
"FINANCIAL SECURITY" means Financial Security Assurance Inc., a New
York stock insurance company.
"FINANCIAL SECURITY DEFAULT" means, with respect to any Series, any
one of the following events shall have occurred and be continuing:
(a) Financial Security shall have failed to make a payment
required under a related Policy in accordance with its terms;
(b) Financial Security shall have (i) filed a petition or
commenced any case or proceeding under any provision or chapter of the
United States Bankruptcy Code, the New York State Insurance Law or any
other similar federal or state law relating to
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insolvency, bankruptcy, rehabilitation, liquidation or reorganization,
(ii) made a general assignment for the benefit of its creditors, or
(iii) had an order for relief entered against it under the United
States Bankruptcy Code, the New York State Insurance Law, or any
other similar federal or state law relating to insolvency, bankruptcy,
rehabilitation, liquidation or reorganization which is final and
nonappealable; or
(c) a court of competent jurisdiction, the New York
Department of Insurance or other competent regulatory authority
shall have entered a final and nonappealable order, judgment or
decree (i) appointing a custodian, trustee, agent or receiver for
Financial Security or for all or any material portion of its property
or (ii) authorizing the taking of possession by a custodian, trustee,
agent or receiver of Financial Security (or the taking of possession
of all or any material portion of the property of Financial Security).
"FORECLOSURE EVENT OF DEFAULT" means, at any time, any default in
the satisfaction of Insurer Secured Obligations.
"INDEMNIFICATION" means, with respect to any Loss Protection,
indemnification, reimbursement, repayment, recovery or any other right of the
provider of such Loss Protection to be made whole and held harmless in
respect of its obligations under such Loss Protection.
"INDENTURE" means, with respect to Series 1999-D, the Series 1999-D
Indenture, and for each other Series, the Indenture related to such Series.
"INSURANCE AGREEMENT" means, with respect to any Series, the
Insurance and Indemnity Agreement among Financial Security, AFS, the Seller
and the related Issuer, if any, for such Series, pursuant to which Financial
Security issued a Policy.
"INSURANCE AGREEMENT EVENT OF DEFAULT" in respect of any AmeriCredit
Notes has the meaning provided in the Underlying Transaction Documents for
such AmeriCredit Notes.
"INSURER SECURED OBLIGATION" means the right of Financial Security
to withdraw funds from the RCCAs pursuant to Section 2.01.
"INSURER TERMINATION DATE" means, with respect to any Series, the
date, determined pursuant to Section 2.04, on which the related RCCA may no
longer be drawn on pursuant to Section 2.01.
"LENDER SECURED OBLIGATIONS" means all amounts and obligations which
the Seller may at any time owe to or on behalf of the Lenders or the
Administrative Agent under the Credit Agreement.
"LENDER SECURITY AGREEMENT" means the Security and Collateral Agent
Agreement, dated as of the date hereof, among the Seller, the Servicer, the
Administrative Agent, and the Lender Collateral Agent, as the same may from
time to time be amended, supplemented or otherwise modified.
"LENDER TERMINATION DATE" means, with respect to any Series, the
date on which the Lenders and the Administrative Agent shall have received
payment and performance in full
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(excluding any payment from Credit Support Providers (as defined in the
Credit Agreement)) of all Lender Secured Obligations with respect to monies
used to fund the RCCA with respect to such Series.
"LIEN" means, as applied to the property or assets (or the income,
proceeds, products, rents or profits therefrom) of any Person, in each case
whether the same is consensual or nonconsensual or arises by contract,
operation of law, legal process or otherwise: (a) any mortgage, lien, pledge,
attachment, charge, lease, conditional sale or other title retention
agreement, or other security interest or encumbrance of any kind; or (b) any
arrangement, express or implied, under which such property or assets (and/or
such income, proceeds, products, rents or profits) are transferred,
sequestered or otherwise identified for the purpose of subjecting or making
available the same for payment of debt or performance of any other obligation
in priority to the payment of the general, unsecured creditors of such Person.
"LOSS EXPENSES" means court costs, interest upon judgments, and
allocated investigation, adjustment and legal expenses, including expenses
related to the workout of a potential loss or the protection and perfection
of any subrogation or salvage rights or security interest under an
AmeriCredit Policy. "LOSS EXPENSES" shall not include (a) salaries paid to
employees of Financial Security, (b) awards or judgments against Financial
Security occasioned by failure of Financial Security to settle a claim or
make payment under an AmeriCredit Policy, when such failure arises from bad
faith, negligence or misconduct on the part of Financial Security or any
agent or employee of Financial Security or (c) liability of Financial
Security, arising by contract, operation of law or otherwise, from its
participation or membership, whether voluntary or involuntary, in any
insolvency fund, including any guaranty fund, association, pool, plan or
other facility that provides for the assessment of, payment by or assumption
by Financial Security of a part or the whole of any claim, debt, charge, fee
or other obligation of any insurer, or its successor or assigns, that has
been declared insolvent by any authority having jurisdiction, or which is
otherwise unable to meet any claim, debt, charge, fee or other obligation in
whole or in part. "LOSS EXPENSES" shall include reasonably incurred expenses
paid by Financial Security to Transaction Services Corporation, an affiliate
of Financial Security; PROVIDED that such expenses are allocated to the
related AmeriCredit Policy on a cost basis.
"LOSS PROTECTION" means any reinsurance, any source of reimbursement
or indemnity, any guaranty, surety bond, letter of credit, cash collateral
account, spread account or other pledged account, any subordinate security or
other subordinate interest, any other credit enhancement and any other
agreement or accommodation that has the effect, directly or indirectly, of
protecting Financial Security from incurring a loss with respect to Financial
Security's obligations under any Policy.
"NOTES" means the asset-backed notes and asset-backed certificates,
issued by AmeriCredit Automobile Receivables Trust 1999-D and any
asset-backed notes or certificates issued by any "AMERICREDIT AUTOMOBILE
RECEIVABLES TRUST" with a Series designation indicating issuance after Series
1999-D that are:
(i) insured by Financial Security;
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(ii) have Loss Protection in the form of an RCCA
established under this Agreement; and
(iii) have Loss Protection in the form of a Spread
Account that is subject to the cross-collateralization
provisions of the Spread Account Agreement.
"OC AMOUNT" means, with respect to any RCCA, the OC Level, if any, for
the related Notes times the sum of the Aggregate Principal Balance and the
Pre-Funded Amount, if any, for the related Notes.
"OTHER AMERICREDIT NOTES" means asset-backed notes and asset-backed
certificates whether issued before or after any Notes, issued by an
AmeriCredit Automobile Receivables Trust listed on Schedule I hereto or by
any other owner trust, business trust, grantor trust or any other
special-purpose entity formed by the Seller as the issuer in a securitization
sponsored by the Seller that are:
(i) insured by Financial Security;
(ii) do not have Loss Protection in the form of an
RCCA established under this Agreement; and
(iii) have Loss Protection in the form of a Spread
Account that is subject to the cross-collateralization
provisions of the Spread Account Agreement.
"OTHER AMERICREDIT POLICIES" means Financial Guaranty Insurance
Policies issued by Financial Security with respect to a Series of Other
AmeriCredit Notes for which no RCCA has been established.
"OPINION OF COUNSEL" means a written opinion of counsel, acceptable
as to form and substance, and reasonably acceptable as to issuing counsel, to
Financial Security.
"POLICY" means any Financial Guaranty Insurance Policy issued by
Financial Security with respect to a Series of Notes for which the Seller has
established an RCCA hereunder.
"POLICY PAYMENTS" shall mean Claims and Loss Expenses payments,
collectively.
"POOLING AND SERVICING AGREEMENT" means, for each Series created
pursuant to a Pooling and Servicing Agreement, the Pooling and Servicing
Agreement related to such Series.
"QUALIFIED SUBSEQUENT REINSURANCE" means (i) any Spread Account
Replacement Reinsurance, as defined in clause (i) of the definition thereof,
having a limit of liability, scope of coverage and other terms substantially
the same in all material respects as the corresponding terms of the RCCAs
under Article II of this Agreement and (ii) any Spread Account Replacement
Reinsurance, as defined in clause (ii) of the definition thereof, which
amortizes and terminates on the same basis as cash would have been released
from the related Spread Account had the cash not been replaced in such Spread
Account.
"RCCA" has the meaning set forth in the recitals.
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"RCCA AGENT" means Bank One, N.A.
"RCCA ACCOUNT COLLATERAL" means all of the following:
(i) Each RCCA established pursuant to the RCCA
Agreement and all funds held in such RCCA and all certificates
and instruments, if any, from time to time representing or
evidencing such RCCA or such funds;
(ii) all investments from time to time of amounts in
each RCCA established pursuant to the RCCA Agreement, and all
certificates and instruments, if any, from time to time
representing or evidencing such investments;
(iii) all notes, certificates of deposit and other
instruments from time to time delivered to or otherwise
possessed by the RCCA Agent or any Secured Party or any
assignee or agent on behalf of the RCCA Agent or any Secured
Party in substitution for or in addition to any of the then
existing RCCA Account Collateral, and
(iv) 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 RCCA Account Collateral.
"RCCA DEPOSIT" has the meaning set forth in the recitals.
"RCCA ELIGIBLE INVESTMENTS" means Eligible Investments held by the
Collateral Agent in an RCCA and with respect to which the Collateral Agent
has taken Delivery. Any such RCCA Eligible Investment may be purchased by or
through the Collateral Agent or any of its affiliates.
"RCCA SUPPLEMENT" has the meaning set forth in Section 4.06.
"REQUISITE AMOUNT" shall mean, with respect to any Series, (i) on
the Closing Date, the amount of the Spread Account Initial Deposit, and with
respect to any Determination Date occurring during the Funding Period, the
sum of the amount of the Spread Account Initial Deposit and the amount of the
Subsequent Spread Account Deposits, if any, on such Determination Date
(taking into account any Subsequent Spread Account Deposit transferred to the
such Spread Account on or prior to the related Distribution Date); PROVIDED,
HOWEVER, that the Requisite Amount shall mean (A) if a Trigger Event shall
exist as of such Determination Date and no Insurance Agreement Event of
Default shall have occurred as of such Determination Date, 15% (or such lower
percentage as may be provided for in the related Series Supplement) of the
sum of the Aggregate Principal Balance and the Pre-Funded Amount, if any,
with respect to such Determination Date; or (B) if an Insurance Agreement
Event of Default shall have occurred as of such Determination Date, an
unlimited amount, and (ii) with respect to any Distribution Date thereafter,
the greater of (1) the Floor Amount; and (2)(A) if no Trigger Event shall
exist as of the related Determination Date, and no Insurance Agreement Event
of Default shall have occurred as of such Determination Date, (I) if the OC
Level is less than 10% (or such lower percentage as may be provided for in
the related Series Supplement), the Spread Account Initial Deposit with
respect to such Determination Date, and (II) if the OC Level is equal to or
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greater than 10% (or such lower percentage as may be provided for in the
related Series Supplement), the percentage equal to the excess of 13% (or
such lower percentage as may be provided for in the related Series
Supplement) over the OC Level for such Determination Date of the Aggregate
Principal Balance with respect to such Determination Date (B) if a Trigger
Event shall exist as of such Determination Date and no Insurance Agreement
Event of Default shall have occurred as of such Determination Date, 15% (or
such lower percentage as may be provided for in the related Series
Supplement) of the sum of the Aggregate Principal Balance and the Pre-Funded
Amount, if any, with respect to such Determination Date; or (C) if an
Insurance Agreement Event of Default shall have occurred as of such
Determination Date, an unlimited amount.
"SALE AND SERVICING AGREEMENT" means, with respect to Series 1999-D,
the Series 1999-D Sale and Servicing Agreement and, for each other Series
issued pursuant to an Indenture, the Sale and Servicing Agreement related to
such Series.
"SECURED OBLIGATIONS" means, with respect to each Series, the
Insurer Secured Obligations with respect to such Series.
"SECURITY ACCOUNT" has the meaning set forth in Section 8-501(a) of
Revised Article 8.
"SECURITY INTERESTS" means the security interests and Liens in the
Collateral granted pursuant to Section 3.01 hereof.
"SERIES" means any AmeriCredit Notes issued by the same issuer on
the same Closing Date and having the same series designation.
"SERIES 1999-D INDENTURE" means the Indenture dated as of October
25, 1999, between AmeriCredit Automobile Receivables Trust 1999-D and Bank
One, as Trustee and Trust Collateral Agent.
"SERIES 1999-D ISSUER" means AmeriCredit Automobile Receivable Trust
1999-D.
"SERIES 1999-D NOTES" means the Notes issued pursuant to the Series
1999-D Indenture.
"SERIES 1999-D POLICY" means the Policy issued by Financial Security
with respect to the Series 1999-D Notes.
"SERIES 1999-D RCCA" means the account established at the office of
Bank One, Columbus, Ohio, designated "AFS FUNDING SERIES 1999-D REPLACEMENT
CASH COLLATERAL ACCOUNT, ACCOUNT NUMBER 6800047200" or such other substitute
account as Financial Security may designate from time to time pursuant to
Article 4.
"SERIES SUPPLEMENT" means the supplement to the Spread Account
Agreement entered into with respect to a Series of AmeriCredit Notes.
"SPREAD ACCOUNT" means with respect to a Series, the account
established with respect to such Series in accordance with Section 3.01(a) of
the Spread Account Agreement.
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"SPREAD ACCOUNT AGREEMENT" means the Spread Account Agreement,
dated as of December 1, 1994, as amended and restated as of May 11, 1998, as
amended as of October 25, 1999, by and among Financial Security, the Seller,
La Salle National Bank, in its capacities as Trustee and Collateral Agent
with respect to certain Series of AmeriCredit Notes as specified therein,
Harris Trust and Savings Bank, in its capacities as Trustee and Collateral
Agent with respect to certain Series of AmeriCredit Notes as specified
therein, and Bank One, N.A. ("BANK ONE"), in its capacities as Trustee and
Collateral Agent with respect to certain Series of AmeriCredit Notes as
specified therein.
"SPREAD ACCOUNT CAP" shall mean, with respect to any RCCA, the
lesser of (a) the sum of the Requisite Amount and the OC Amount, if any, with
respect to the related Notes, or (b) 13% (25%, if a Trigger Event shall have
occurred and be continuing) of the sum of the Aggregate Principal Balance and
the Pre-Funded Amount, if any, with respect to the related Notes.
"SPREAD ACCOUNT REPLACEMENT REINSURANCE" means any policy of
reinsurance issued by a third party insurance company for the benefit of
Financial Security (i) which permits the amount of the initial deposit to a
Spread Account to be less than that which would have otherwise been required
by Financial Security in connection with the issuance of the related Series
in the absence of such policy (for example, in connection with AmeriCredit
Automobile Receivables Trust 1999-C in which Financial Security's requirement
for initial first loss protection was 8% of the sum of the Aggregate
Principal Balance and the Pre-Funded Amount, reinsurance obtained in the
amount of 5% of such sum reduced the initial deposit to the Spread Account
from 8% of such sum to 3% of such sum) or (ii) which is in the form of
recourse reduction reinsurance (I.E., substitution of reinsurance for cash
currently on deposit in one or more spread accounts for any Series of
AmeriCredit Notes) that has terms (other than pricing terms) substantially
the same as the recourse reduction reinsurance in force on the date of this
Agreement.
"STANDARD TERMINATION DATE" has the meaning specified in Section 2.04.
"SUBSEQUENT REINSURANCE" means with respect to any RCCA, any Spread
Account Replacement Reinsurance and any other RCCA for the AmeriCredit
Policies if such Spread Account Replacement Reinsurance or such other RCCA
has an Effective Date after the Effective Date of such RCCA without giving
effect to any termination, cancellation or reduction (except pursuant to the
last sentence of Section 2.04) by Financial Security of such Spread Account
Replacement Reinsurance or other RCCA or to any default by any insurer in
respect of its obligations with respect to any such Spread Account
Replacement Reinsurance.
"SUBORDINATION AGREEMENT" means the Subordination and Intercreditor
Agreement, dated as of October 19, 1999 among the Seller, AFS Funding Trust,
the AmeriCredit 1996-C Trust, the AmeriCredit 1996-D Trust, the AmeriCredit
1997-A Trust, the AmeriCredit 1997-B Trust, the AmeriCredit 1997-C Trust, the
AmeriCredit 1997-D Trust, the AmeriCredit 1998-A Trust, the AmeriCredit
1998-B Trust, the AmeriCredit 1998-C Trust, the AmeriCredit 1998-D Trust, the
AmeriCredit 1999-A Trust, the AmeriCredit 1999-B Trust, the AmeriCredit
1999-C Trust, AmeriCredit Financial Services, Inc., AmeriCredit Management
Company, AmeriCredit Corp., Bankers Trust Company, not in its individual
capacity, but solely in its capacity as Lender Collateral Agent, Bankers
Trust Company, not in its individual capacity, but solely in its capacity as
Owner Trustee, Credit Suisse First Boston, acting through its New York
branch, in its
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capacity as Administrative Agent, those Lenders from time to time party the
Credit Agreement, Financial Security, Harris Trust and Savings Bank, La Salle
National Bank, and Bank One N.A. (in their capacity as "COLLATERAL AGENT"
under that certain Spread Account Agreement dated as of December 1, 1994, as
amended and restated May 11, 1998, and such other entities as may be
designated as "COLLATERAL AGENTS" under the Underlying Transaction Documents
or the Spread Account Agreement, together with their respective successors or
assigns, if any.)
"TRUSTEE" means (A) with respect to any Series created pursuant to a
Pooling and Servicing Agreement, the Trustee named in such Pooling and
Servicing Agreement, or (B) with respect to any Series issued pursuant to an
Indenture, the Trust Collateral Agent named in such Indenture.
"UNDERLYING TRANSACTIONS" when used in the singular, any of, and
when used in the plural, all of, the transactions contemplated by each of the
1996-C Insurance and Indemnity Agreement, the 1996-D Insurance and Indemnity
Agreement, the 1997-A Insurance and Indemnity Agreement, the 1997-B Insurance
and Indemnity Agreement, the 1997-C Insurance and Indemnity Agreement, the
1997-D Insurance and Indemnity Agreement, the 1998-A Insurance and Indemnity
Agreement, the 1998-B Insurance and Indemnity Agreement, the 1998-C Insurance
and Indemnity Agreement, 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 1996-C Sale and Servicing Agreement, the 1996-D
Sale and Servicing Agreement, the 1997-A Sale and Servicing Agreement, the
1997-B Sale and Servicing Agreement, the 1997-C Sale and Servicing Agreement,
the 1997-D Sale and Servicing Agreement, 1998-A Sale and Servicing Agreement,
the 1998-B Sale and Servicing Agreement, the 1998-C Sale and Servicing
Agreement, 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, each insurance
and indemnity agreement and each sale and servicing agreement entered into in
connection with a spread account which is subject to the Spread Account
Agreement and all other transactions anticipated by the documents executed in
connection with any of the foregoing.
"UNDERLYING TRANSACTION DOCUMENTS" the agreement, contracts,
documents, amendments, consents, instruments, certificates and other papers
executed in connection with each Underlying Transaction.
"UNIFORM COMMERCIAL CODE" or "UCC" means the Uniform Commercial Code
in effect in the relevant jurisdiction, as the same may be amended from time
to time.
ARTICLE II
REIMBURSEMENT AGREEMENT; DRAW LIMIT
Section 2.01. AGREEMENT TO REIMBURSE. (a) The Seller hereby agrees
with respect to each RCCA that if Financial Security will make a Policy
Payment under the related Policy on any Insured Distribution Date then, at
any time on or after the Business Day prior to the Distribution Date
preceding such Insured Distribution Date, Financial Security shall have the
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right to withdraw monies from such RCCA in an amount not exceeding the lesser
of the amount of such Policy Payment and the amount on deposit in such RCCA,
either for the purpose of making such Policy Payment or as reimbursement for
making such Policy Payment. Financial Security agrees that it shall first
apply amounts available (including, with respect to Subsequent Reinsurance,
amounts deemed available in accordance with the definition thereof), if any,
from the following sources to make such Policy Payment:
(i) to the extent available pursuant to the Spread
Account Agreement, the Spread Accounts for the related Notes
and the AmeriCredit Notes other than the related Notes; or
(ii) Subsequent Reinsurance.
(b) The Seller hereby further agrees with respect to each RCCA
that if Financial Security will make a Policy Payment under any
AmeriCredit Policy other than the related Policy on any Insured
Distribution Date then, at any time on or after the Business Day prior
to the Distribution Date preceding such Insured Distribution Date,
Financial Security shall have the right to withdraw monies from such
RCCA in an amount not exceeding the lesser of the amount of such Policy
Payment and the amount on deposit in such RCCA, either for the purpose
of making such Policy Payment or reimbursement for making such Policy
Payment. Financial Security agrees that it shall first apply amounts
available (including, with respect to Subsequent Reinsurance, amounts
deemed available in accordance with the definition thereof), if any,
from the following sources to make such Policy Payment:
(i) to the extent available pursuant to the Spread
Account Agreement, the Spread Accounts for the related Notes
and the AmeriCredit Notes other than the related Notes; or
(ii) Subsequent Reinsurance.
(c) Financial Security shall redeposit into an RCCA any amount
withdrawn therefrom pursuant to this Section 2.01 if such amount is not
applied to make the Policy Payment with respect to which it was drawn
or to reimburse Financial Security with respect thereto within five
Business Days after the date such Policy Payment was due together with
the investment earnings on such amount, if any.
Section 2.02. PRIORITY OF OTHER LOSS PROTECTION. With respect to any
RCCA, all reinsurance of the AmeriCredit Policies shall be Excess of
Financial Security's Loss Protection provided by such RCCA and shall be for
the benefit solely of Financial Security, except that the Loss Protection
provided by such RCCA shall be Excess of any reinsurance that constitutes
Subsequent Reinsurance (including, with respect to Subsequent Reinsurance,
amounts deemed available in accordance with the definition thereof). With
respect to any RCCA, all other RCCAs previously established shall be Excess
of Financial Security's Loss Protection provided by such RCCA and shall be
solely for the benefit of Financial Security and the Loss Protection provided
by such RCCA shall be Excess of any other RCCA that constitutes Subsequent
Reinsurance. Except as provided in the two preceding sentences or as
expressly otherwise
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provided with respect to any Series of Notes (with the written agreement of
the parties to the Transaction Documents), any RCCA shall be Excess of all
other Loss Protection for any Series of Notes, including subordinate tranches
of securities not insured by Financial Security. Financial Security covenants
and agrees that, before entering into any agreement for Spread Account
Replacement Reinsurance with respect to any AmeriCredit Policy, Financial
Security will provide written notice to the Administrative Agent as to
whether such Spread Account Replacement Reinsurance is or is not Qualified
Subsequent Reinsurance.
Section 2.03. RCCA DRAW LIMIT. (a) On the Effective Date of each
RCCA, the aggregate amount that may be withdrawn from such RCCA pursuant to
Section 2.01 (the "DRAW LIMIT") shall equal the amount on deposit in such
RCCA (or such lesser amount designated by Financial Security in its sole and
absolute discretion).
(b) The Draw Limit with respect to each RCCA shall, after the
Effective Date, be reduced dollar-for-dollar:
(i) on each Distribution Date with respect to the
related Notes (after the Funding Period, if any), so long as
no Insurance Agreement Event of Default exists with respect to
any of the AmeriCredit Notes, to the extent, if any, that (A)
the sum of (1) the amount in the Spread Account for such
related Notes, (2) the OC Amount, if any, and (3) the Draw
Limit for such RCCA on the preceding Distribution Date exceeds
(B) the Spread Account Cap, after giving effect to all
deposits to and withdrawals from the Spread Account for such
related Notes and payments of principal of such related Notes
in respect of such Distribution Date; PROVIDED that reduction
of the Draw Limit shall resume if and when no Insurance
Agreement Event of Default shall be continuing (due to waiver
or otherwise); and
(ii) for withdrawals under Section 2.01 hereof.
(c) The Draw Limit for any RCCA shall be reinstated
dollar-for-dollar to the extent of reimbursement of withdrawals from
such RCCA, but not in excess of the Draw Limit as reduced pursuant to
clause (i) of the preceding paragraph (b). Any reduction in a Draw
Limit shall be final and shall not be subject to reinstatement except
as provided in the preceding sentence, and the amount of reinstatement
shall be the amount of such reimbursement, net of any interest. For
purposes of such reinstatement, reimbursement of withdrawals from any
RCCA shall include only recoveries in respect of the Policy Payments
for which the withdrawals were made and the amount of interest deducted
shall include only interest actually paid to Financial Security as
provided in the related Insurance and Indemnity Agreement in respect of
such Policy Payments.
Section 2.04. TERM OF REIMBURSEMENT OBLIGATION. The amounts on
deposit in each RCCA shall be available to be drawn by Financial Security
pursuant to Section 2.01 until:
(i) if no Insurance Agreement Event of Default or
Trigger Event exists with respect to any of the AmeriCredit
Notes, the date (the "STANDARD TERMINATION DATE") of the
earliest to occur of (A) the expiration of Financial
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Security's liability under the related Policy and (B) the Draw
Limit with respect to such RCCA is equal to zero;
(ii) if an Insurance Agreement Event of Default or
Trigger Event exists with respect to any of the AmeriCredit
Notes and the Standard Termination Date has not yet occurred,
the later of (A) the Standard Termination Date and (B) the
earlier of (1) the date on which no Insurance Agreement Event
of Default or Trigger Event shall be continuing (due to
waiver, cure or otherwise) with respect to any of the
AmeriCredit Notes or (2) the expiration of all of the
AmeriCredit Policies outstanding at the date of the first to
occur of such Insurance Agreement Event of Default or Trigger
Event; PROVIDED that (a) the aggregate Draw Limit for all
RCCAs under this Agreement thereafter shall not exceed such
aggregate Draw Limit at the date of such Insurance Agreement
Event of Default or Trigger Event (except for increases
thereafter due to reimbursements of the RCCAs) and (b) at each
subsequent Standard Termination Date with respect to any RCCA,
the Draw Limit for each RCCA shall be reduced in order,
starting with the RCCA having the earliest Effective Date and
reducing the Draw Limit for such RCCA to zero before reducing
the Draw Limit of the RCCA having the next earliest Effective
Date, until the aggregate Draw Limit for all RCCAs under this
Agreement is equal to the sum of (I) the aggregate par amount
insured of Notes outstanding at such date and (II) the
aggregate of the Spread Account Shortfalls and warehousing
shortfalls (if any) with respect to the Other AmeriCredit
Notes that were outstanding at the date of such Insurance
Agreement Event of Default or Trigger Event, if such sum is
less than such aggregate Draw Limit at such date. In addition,
if an Insurance Agreement Event of Default or Trigger Event
shall have occurred and be continuing, Financial Security may
direct the Collateral Agent to release all or a portion of the
amounts on deposit in outstanding RCCAs (the proceeds of which
shall be distributed to the Lender Collateral Agent) and
cancel any outstanding Spread Account Replacement Reinsurance
(but only on a pro rata basis as between all outstanding RCCAs
and all outstanding Spread Account Replacement Reinsurance) to
the extent Financial Security determines in good faith that
Financial Security's remaining exposure under the AmeriCredit
Policies is investment grade based upon rating agency levels
of coverage for expected losses without the benefit of such
terminated RCCAs and Spread Account Replacement Reinsurance.
Section 2.05. RECOVERIES. Financial Security in respect of its
Policy Payments, all of Financial Security's quota share reinsurers of the
AmeriCredit Policies, all of Financial Security's reinsurers participating in
any loss layer with respect to the AmeriCredit Policies and all of Financial
Security's reinsurers providing Spread Account Replacement Reinsurance that
is not Subsequent Reinsurance shall first be reimbursed in full from
recoveries for all Policy Payments, in the case of Financial Security, and
all reinsurance policy payments, in the case of such reinsurers, before any
reimbursement of withdrawals from any RCCA to the extent that such Policy
Payments or reinsurance policy payments relate to coverage that is Excess of
the Loss Protection provided by such RCCA. Thereafter, Financial Security
shall deposit in such RCCA all recoveries received by Financial Security for
Policy Payments for which withdrawals were made from an RCCA. If any such
RCCA has been terminated, any such recoveries shall be
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distributed by the Collateral Agent to the Lender Collateral Agent. For
purposes of the foregoing, reimbursement of withdrawals from any RCCA shall
include interest only to the extent provided in the related Insurance and
Indemnity Agreement in respect of such Policy Payments for which the
withdrawals were made and only to the extent recoveries are sufficient
therefor. Financial Security shall retain full discretion in exercising
remedies in respect of the AmeriCredit Policies, including the right to
terminate the Servicer and to designate a replacement Servicer and the right
to amend or waive any provision of any Underlying Transaction Document, to
the extent Financial Security has such rights under the Underlying
Transaction Documents; provided that Financial Security shall act in good
faith in doing so.
ARTICLE III
SECURITY INTERESTS; THE COLLATERAL
Section 3.01. GRANT OF SECURITY INTEREST BY THE SELLER.
(a) The Seller hereby pledges, assigns, grants, transfers
and conveys to the Collateral Agent, on behalf of and for the benefit of
Financial Security to secure its rights with respect to each Series for which
such Person acting as Collateral Agent is designated as "COLLATERAL AGENT"
herein or pursuant to an RCCA Supplement, a Lien on and security interest in,
all of its right, title and interest in and to the following (all
constituting Collateral hereunder):
(i) the RCCA Account Collateral;
(ii) all Security Accounts, accounts, all collateral
paper, all documents, all general intangibles, all investments, and all
inventory of the Seller; and
(iii) all distributions, revenues, products,
substitutions, benefits, profits and proceeds, in whatever form of any
of the foregoing.
(b) In order to effectuate the provisions and purposes of
this Agreement, including for the purpose of perfecting the security
interests granted hereunder, the Seller represents and warrants that it has,
prior to the execution of this Agreement, executed and filed an appropriate
Uniform Commercial Code financing statement sufficient to assure that the
Collateral Agent, as agent for Financial Security, has a first priority
perfected security interest in all Collateral with respect to the Series for
which it is acting as Collateral Agent which can be perfected by the filing
of a financing statement or has delivered to Financial Security a legal
opinion acceptable to Financial Security to the effect that no filings are
required to perfect the security interests granted hereunder.
Section 3.02. PERFECTION. The Seller intends the security interests
in favor of Financial Security to be prior to all other Liens in respect of
the Collateral, and the Seller shall take all actions necessary to obtain and
maintain, in favor of the Collateral Agent, for the benefit of Financial
Security, a first lien on and a first priority, perfected security interest
in the Collateral granted to the Collateral Agent. Subject to the provisions
hereof specifying the rights and powers of Financial Security from time to
time to control certain specified matters relating to the Collateral,
Financial Security shall have all of the rights, remedies and recourse with
respect to the Collateral afforded a secured party under the Uniform
Commercial Code and all other applicable law in addition to, and not in
limitation of, the other rights, remedies and recourse
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granted to Financial Security by this Agreement or any other law relating to
the creation and perfection of liens on, and security interests in, the
Collateral.
Section 3.03. THE SELLER REMAINS LIABLE. The Security Interests are
granted as security only and shall not (i) transfer or in any way affect or
modify, or relieve the Seller from, any obligation to perform or satisfy, any
term, covenant, condition or agreement to be performed or satisfied by the
Seller under or in connection with this Agreement, the Insurance Agreement or
any other Transaction Document to which it is a party or (ii) impose any
obligation on any of Financial Security or a Collateral Agent to perform or
observe any such term, covenant, condition or agreement or impose any
liability on any of the Secured Parties or any Collateral Agent for any act
or omission on its part relative thereto or for any breach of any
representation or warranty on its part contained therein or made in
connection therewith, except, in each case, to the extent provided herein and
in the other Transaction Documents.
Section 3.04. SECURITY INTERMEDIARY.
The Collateral Agent hereby undertakes and agrees to act as
"SECURITY INTERMEDIARY" (as such term is defined in Section 8-501 of the
Uniform Commercial Code as in effect in the State of New York (the "NEW YORK
UCC")). In such capacity (the Collateral Agent in such capacity being herein
sometimes referred to as the "SECURITIES INTERMEDIARY") and in accordance
with Section 4.01(a) of this Agreement, the Securities Intermediary has
established account number 6800047200 in the name of Bank One, N.A., as
Trustee and Collateral Agent which account is the account referred to herein
as the "SERIES [ ] RCCA." The Security Intermediary represents, warrants,
acknowledges and agrees that:
(a) It shall not change the name or account number of the RCCA
without the prior written consent of the Collateral Agent;
(b) All securities or other property underlying any financial
assets deposited in or credited to the RCCA shall be registered in the
name of the Securities Intermediary or the Collateral Agent or in blank
or credited to another securities account or accounts maintained in the
name of the Securities Intermediary, and in no case shall any financial
asset deposited in or credited to the RCCA be registered in the name of
the Seller except to the extent the foregoing have been specially
indorsed to the Securities Intermediary in blank;
(c) All property delivered to the Securities Intermediary
pursuant to this Agreement for deposit in or credit to the RCCA shall
be promptly credited to the RCCA;
(d) The RCCA is a "SECURITIES ACCOUNT" as such term is defined
in Section 8-501(a) of the New York UCC, and the Securities
Intermediary agrees that each item of property (whether investment
property, financial asset, security, instrument or cash) deposited in
or credited to the RCCA shall be treated as a "FINANCIAL ASSET" within
the meaning of Section 8-102(a)(9) of the New York UCC and that,
subject to the terms of this Agreement, the Securities Intermediary
will treat the Collateral Agent as entitled to exercise the rights that
comprise any financial asset deposited in or credited to such RCCA; and
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(e) If at any time the Securities Intermediary shall receive
any order from the Collateral Agent directing transfer or redemption
of any financial asset relating to the RCCA, the Securities
Intermediary shall comply with such entitlement order without further
consent by the Seller or any other person.
Without limiting the generality Section 8.10 of this Agreement, the
parties agree that the RCCA shall be governed by the laws of the State of New
York. Regardless of any provision in any other agreement, for purposes of the
New York UCC, New York shall be deemed to be the Securities Intermediary's
jurisdiction, and the RCCA (as well as all of the securities entitlements
related thereto) shall be governed by the laws of the State of New York.
Section 3.05. MAINTENANCE OF COLLATERAL.
(a) SAFEKEEPING. The Collateral Agent agrees to maintain the
Collateral received by it (or evidence thereof, in the case of
book-entry securities in the name of the Collateral Agent) and all
records and documents relating thereto at the office of the Collateral
Agent specified in Section 8.05 hereof or such other address (unless
all filings have been made to continue the perfection of the security
interest in the Collateral to the extent such security interest can be
perfected by filing a financing statement, as evidenced by an Opinion
of Counsel delivered to Financial Security and the Administrative
Agent), as may be approved by Financial Security. The Collateral Agent
shall keep all Collateral and related documentation in its possession
separate and apart from all other property that it is holding in its
possession and from its own general assets and shall maintain accurate
records pertaining to the RCCA Eligible Investments and each RCCA
included in the Collateral in such a manner as shall enable the
Collateral Agent and the Secured Parties to verify the accuracy of
such record-keeping. The Collateral Agent's books and records shall at
all times show that the Collateral is held by the Collateral Agent as
agent of the Secured Parties and is not the property of the Collateral
Agent. The Collateral Agent shall promptly report to Financial
Security, the Administrative Agent and the Seller any failure on its
part to hold the Collateral as provided in this Section 3.05(a) and
shall promptly take appropriate action to remedy any such failure.
(b) ACCESS. The Collateral Agent shall permit each of
Financial Security and the Administrative Agent, or their respective
duly authorized representatives, attorneys, auditors or designees, to
inspect the Collateral or the records relating to the Collateral in
the possession of or otherwise under the control of the Collateral
Agent pursuant hereto at such reasonable times during normal business
hours as Financial Security or the Administrative Agent may reasonably
request upon not less than one Business Day's prior written notice.
The costs and expenses associated with any such inspection will be
paid by the party making such inspection.
Section 3.06. TERMINATION AND RELEASE OF RIGHTS.
(a) On the date determined in accordance with Section 2.04 on
which the amounts on deposit in a RCCA relating to a Series are no
longer available to be drawn by Financial Security, the rights,
remedies, powers, duties, authority and obligations
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conferred upon Financial Security pursuant to this Agreement in
respect of the Collateral related to such Series shall terminate and
be of no further force and effect and all rights, remedies, powers,
duties, authority and obligations of Financial Security to the
extent granted by this Agreement with respect to such Collateral
shall be automatically released; PROVIDED that Section 5.06, Section
5.07 and any other provisions of this Agreement which by their terms
survive the termination of this Agreement and any indemnity provided
to Financial Security herein shall survive such Insurer Termination
Date.
(b) On the Final Termination Date with respect to a Series,
the rights, remedies, powers, duties, authority and obligations
conferred upon the Collateral Agent and Financial Security pursuant to
this Agreement with respect to such Series shall terminate and be of
no further force and effect and all rights, remedies, powers, duties,
authority and obligations of the Collateral Agent and Financial
Security with respect to the Collateral related to such Series shall
be released in accordance with the provisions of this Section 3.06(b).
On the Final Termination Date with respect to a Series, the Collateral
Agent agrees, and Financial Security agrees, at the expense of the
Seller or upon the arrangement of other means for payment of such
expense acceptable to Financial Security, to execute such instruments
of release, in recordable form if necessary, in favor of the Seller as
the Seller may reasonably request, to deliver the related Collateral,
if any, in its possession to the Seller, and to otherwise release the
lien of this Agreement.
ARTICLE IV
REPLACEMENT CASH COLLATERAL ACCOUNTS
Section 4.01. ESTABLISHMENT OF RCCAS, INITIAL DEPOSITS INTO RCCAS.
(a) If requested by the Seller in writing on or prior to the
second Business Day prior to the Closing Date relating to a Series,
the Collateral Agent shall establish on or prior to such Closing Date
with respect to such Series, at its office or at another depository
institution or trust company an Eligible Account, designated, "AFS
FUNDING CORP. REPLACEMENT CASH COLLATERAL ACCOUNT - [INSERT SERIES
DESIGNATION] - [INSERT BANK], AS COLLATERAL AGENT UNDER THE RCCA
AGREEMENT." If any RCCA ceases to be an Eligible Account, the
Collateral Agent shall, within five Business Days, establish a new
Eligible Account for such Series.
(b) No withdrawals may be made of funds in any RCCA except as
provided in Section 2.01, 4.01(c) and 4.03 of this Agreement. Except
as specifically provided in this Agreement, funds in an RCCA shall not
be commingled with funds in any other RCCA or with any other moneys.
All moneys deposited from time to time in an RCCA and all investments
made with such moneys shall be held by the Collateral Agent as part of
the Collateral.
(c) On the Closing Date with respect to a Series, the
Collateral Agent shall deposit the RCCA Deposit received from the
Administrative Agent with respect to such Series, if any, into the
related RCCA as directed in writing by the Seller. The Collateral
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Agent shall deposit all cash distributions with respect to the
Collateral into the related RCCA. On each Distribution Date, the
Collateral Agent shall pay all income (net of any investment losses)
on investments of funds in the RCCAs to, or at the direction of, the
Administrative Agent for application pursuant to the Lender Security
Agreement; PROVIDED, HOWEVER, that to the extent on any such
Distribution Date losses for the related period exceed gains for
such period, such net loss shall be carried forward and applied to
any future gains prior to the payment of any such proceeds to the
Administrative Agent hereunder.
(d) Except as specifically provided herein, each RCCA shall
be maintained by the Collateral Agent at all times separate and
apart from any other account of the Seller, the Servicer or the
Issuer. All income or loss on investments of funds in the RCCAs
shall be reported by the Seller as taxable income or loss of the
Seller.
Section 4.02. INVESTMENTS.
(a) Funds which may at any time be held in an RCCA shall be
invested and reinvested by the Collateral Agent for such Series, at
the written direction (which may include, subject to the provisions
hereof, general standing instructions) of the Administrative Agent
received by the Collateral Agent by 1:00 P.M., New York City time,
on the Business Day prior to the date on which such investment shall
be made, in one or more RCCA Eligible Investments in the manner
specified in Section 4.02(c), PROVIDED that following the Lender
Termination Date with respect to any Series, the Seller shall have
the right to direct the investment of funds in the RCCA relating to
such Series. If no written direction with respect to any portion of
such RCCA is received by the Collateral Agent, the Collateral Agent
shall invest such funds overnight in investments described in
paragraph (d) of Eligible Investments, provided that the Collateral
Agent shall not be liable for any loss or absence of income
resulting from such investments.
(b) Each investment made pursuant to this Section 4.02 on any
date shall mature not later than the Business Day immediately
preceding the Distribution Date next succeeding the day such
investment is made, except that (i) if Financial Security has given
notice of a draw from the related RCCA or the Servicer's certificate
provides notice thereof, then a portion of the amounts invested in
such RCCA shall be invested on an overnight basis until the date of
such draw and (ii) if the Draw Limit with respect to any RCCA is to
be reduced on such Distribution Date, then a portion of investments
in such RCCA equal to the amount of such reduction shall be invested
on an overnight basis until the amount to be released from such RCCA
in connection with such reduction is released.
(c) Subject to the other provisions hereof, the Collateral
Agent shall have sole control over each such investment and the
income thereon, and any certificate or other instrument evidencing
any such investment, if any, shall be delivered directly to the
Collateral Agent or its agent, together with each document of
transfer, if any, necessary to transfer title to such investment to
the Collateral Agent in a manner which complies
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with Section 3.04 and the requirements of the definition of "RCCA
ELIGIBLE INVESTMENTS."
(d) If amounts on deposit in any RCCA are at any time
invested in an RCCA Eligible Investment payable on demand, the
Collateral Agent shall (i) consistent with any notice required to be
given thereunder, demand that payment thereon be made on the last
day such RCCA Eligible Investment is permitted to mature under the
provisions hereof and (ii) demand payment of all amounts due
thereunder promptly upon receipt of written notice from Financial
Security to the effect that such investment does not constitute an
RCCA Eligible Investment.
(e) All moneys on deposit in an RCCA, together with any
deposits or securities in which such moneys may be invested or
reinvested shall constitute Collateral hereunder subject to the
Security Interest of Financial Security.
(f) Subject to Section 5.03 hereof, the Collateral Agent
shall not be liable by reason of any insufficiency in any RCCA
resulting from any loss on any Eligible Investment included therein.
Section 4.03. DISTRIBUTIONS; PRIORITY OF PAYMENTS.
(a) Prior to each Distribution Date, Financial Security will
direct the Collateral Agent if there are any amounts to be distributed
pursuant to Section 4.03(b) on such Distribution Date and the
Collateral Agent shall notify the Seller and the Administrative Agent
of such determination.
(b) On each Distribution Date, Financial Security shall be
entitled to withdraw amounts from the RCCAs pursuant to Article 2.
(c) On each Distribution Date, if the amount on deposit in
any RCCA exceeds the Draw Limit with respect thereto after giving
effect to all distributions on such Distribution Date, then the
Collateral Agent shall withdraw from such RCCA the amount of such
excess and pay such amount to, or at the direction of, the
Administrative Agent for application pursuant to the Lender Security
Agreement.
(d) On the Insurer Termination Date for any Series, the
Collateral Agent shall withdraw from the RCCA with respect to such
Series an amount up to the outstanding Lender Insured Obligations with
respect to such Series and pay it to, or at the direction of, the
Administrative Agent for application pursuant to the Lender Security
Agreement.
Section 4.04. GENERAL PROVISIONS REGARDING RCCAS.
(a) Promptly upon the establishment (initially or upon any
relocation) of an RCCA hereunder, the Collateral Agent shall advise
the Seller, the Administrative Agent and Financial Security in
writing of the name and address of the depository institution or
trust company where the RCCA has been established (if not Bank One
or any successor Collateral Agent in its commercial banking
capacity), the name of the officer of the depository institution who
is responsible for overseeing such RCCA, the account number
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and the individuals whose names appear on the signature cards for
such RCCA. The Seller shall cause each such depository institution
or trust company to execute a written agreement, in form and
substance satisfactory to Financial Security, waiving, and the
Collateral Agent by its execution of this Agreement hereby waives
(except to the extent expressly provided herein), in each case to
the extent permitted under applicable law, (i) any banker's or other
statutory or similar Lien, and (ii) any right of set-off or other
similar right under applicable law with respect to such RCCA and any
other RCCA and agreeing, and the Collateral Agent by its execution
of this Agreement hereby agrees, to notify the Seller, Financial
Security and the Administrative Agent of any charge or claim against
or with respect to such RCCA. The Collateral Agent shall give the
Seller, the Administrative Agent and Financial Security at least ten
Business Days' prior written notice of any change in the location of
such RCCA or in any related account information. If the Collateral
Agent changes the location of any RCCA held by it, it shall change
the location of the other RCCAs, so that all RCCAs held by it shall
at all times be located at the same depository institution. Anything
herein to the contrary notwithstanding, unless otherwise consented
to by Financial Security in writing, none of the Seller, the
Administrative Agent or the Collateral Agent shall have any right to
change the location of any RCCA.
(b) Upon the written request of Financial Security, the
Seller or Administrative Agent, the Collateral Agent shall cause, at
the expense of the Seller, the depository institution at which any
related RCCA is located to forward to the requesting party copies of
all monthly account statements for such RCCA.
(c) If at any time any RCCA ceases to be an Eligible Account,
the Collateral Agent with respect to such Series shall notify the
Seller, Financial Security and the Administrative Agent of such fact
and shall establish within 5 Business Days of such determination, in
accordance with paragraph (a) of this Section, a successor RCCA
thereto, which shall be an Eligible Account, at another depository
institution acceptable to Financial Security and shall establish
successor RCCAs with respect to all other RCCAs held by the Collateral
Agent, each of which shall be an Eligible Account at the same
depository institution.
(d) No passbook, certificate of deposit or other similar
instrument evidencing a RCCA shall be issued, and all contracts,
receipts and other papers, if any, governing or evidencing a RCCA
shall be held by the Collateral Agent.
(e) Upon execution of this Agreement, each depository
institution or trust company where the RCCA has been established and
the Collateral Agent hereby waives (except to the extent expressly
provided herein), in each case to the extent permitted under
applicable law, (i) any banker's or other statutory or similar Lien,
and (ii) any right of set-off or other similar right under applicable
law with respect to such RCCA and any other RCCA.
Section 4.05. REPORTS BY THE COLLATERAL AGENT. The Collateral Agent
shall report to the Administrative Agent, Financial Security and the Seller
on a monthly basis no later than each Determination Date with respect to the
amount on deposit in each RCCA, the earnings on such
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amount for the period and the identity of the investments included therein as
of the last day of the related Monthly Period.
Section 4.06. RCCA SUPPLEMENTS. The parties hereto intend to enter
into a Supplement substantially in the form of Exhibit A hereto (each, an
"RCCA SUPPLEMENT") with respect to each Series, the Secured Obligations with
respect to which are to be secured by Collateral held pursuant to the terms
of this Agreement. Such RCCA Supplement shall appoint a Collateral Agent for
the RCCA of such Series. Upon execution of an RCCA Supplement, each such RCCA
Supplement shall form a part of this Agreement for all purposes hereof with
respect to the related RCCA, all references to this Agreement shall mean this
Agreement as supplemented by each RCCA Supplement, and the Collateral Agent
designated in each RCCA Supplement shall be and become a party to this
Agreement for all purposes hereof with respect to the related RCCA..
ARTICLE V
THE COLLATERAL AGENT
Section 5.01. APPOINTMENT AND POWERS. Subject to the terms and
conditions hereof, Financial Security hereby appoints Bank One as Collateral
Agent, and Bank One hereby accepts such appointment and agrees to act as
Collateral Agent with respect to the Collateral for Financial Security, to
maintain custody and possession of such Collateral (except as otherwise
provided hereunder) and to perform the other duties of the Collateral Agent
in accordance with the provisions of this Agreement. Financial Security
hereby authorizes the Collateral Agent to take such action on its behalf, and
to exercise such rights, remedies, powers and privileges hereunder, as
Financial Security may direct and as are specifically authorized to be
exercised by the Collateral Agent by the terms hereof, together with such
actions, rights, remedies, powers and privileges as are reasonably incidental
thereto. The Collateral Agent shall act upon and in compliance with the
written instructions of Financial Security delivered pursuant to this
Agreement promptly following receipt of such written instructions; provided
that the Collateral Agent shall not act in accordance with any instructions
(i) which are in violation of the provisions of this Agreement or (ii) for
which the Collateral Agent has not received reasonable indemnity. Receipt of
such instructions shall not be a condition to the exercise by the Collateral
Agent of its express duties hereunder, except where this Agreement provides
that the Collateral Agent is permitted to act only following and in
accordance with such instructions.
Section 5.02. PERFORMANCE OF DUTIES. The Collateral Agent shall not
have any duties or responsibilities except those expressly set forth in this
Agreement or as directed by Financial Security in accordance with this
Agreement.
Section 5.03. LIMITATION ON LIABILITY. Neither the Collateral Agent
nor its directors, officers agents or employees, shall be liable for any
action taken or omitted to be taken by it or them hereunder, or in connection
herewith, except that the Collateral Agent shall be liable for its gross
negligence, bad faith or willful misconduct; nor shall the Collateral Agent
be responsible for the validity, effectiveness, value, sufficiency or
enforceability against the Seller of this Agreement or any of the Collateral
(or any part thereof) or perfection thereof. Notwithstanding any term or
provision of this Agreement, the Collateral Agent shall not incur any
liability to the Seller or Financial Security for any action taken or omitted
by the Collateral Agent in connection
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with the Collateral, except for gross negligence or willful misconduct on the
part of the Collateral Agent, and, further, the Collateral Agent shall not
incur any liability to Financial Security except for gross negligence or
willful misconduct in carrying out its duties to Financial Security. Subject
to Section 5.04, the Collateral Agent shall be protected and shall incur no
liability to any such party in relying upon the accuracy, acting in reliance
upon the contents, and assuming the genuineness of any notice, demand,
certificate, signature, instrument or other document reasonably believed by
the Collateral Agent to be genuine and to have been duly executed by the
appropriate signatory, and (absent actual knowledge to the contrary by a
Responsible Officer of the Collateral Agent) the Collateral Agent shall not
be required to make any independent investigation with respect thereto. The
Collateral Agent shall at all times be free independently to establish to its
reasonable satisfaction, but shall have no duty to independently verify, the
existence or nonexistence of facts that are a condition to the exercise or
enforcement of any right or remedy hereunder. The Collateral Agent may
consult with counsel, and shall not be liable for any action taken or omitted
to be taken by it hereunder in good faith and in accordance with the written
advice of such counsel. The Collateral Agent shall not be under any
obligation to expend or risk its own funds or otherwise incur financial
liability in the performance of any of its duties hereunder, or to exercise
any of the remedial rights or powers vested in it by this Agreement or to
follow any direction from Financial Security unless it shall have received
reasonable security or indemnity satisfactory to the Collateral Agent against
the costs, expenses and liabilities which might be incurred by it in
connection therewith.
Section 5.04. RELIANCE UPON DOCUMENTS. In the absence of bad faith
or gross negligence on its part, the Collateral Agent shall be entitled to
rely on any communication, instrument, paper or other document reasonably
believed by it to be genuine and correct and to have been signed or sent by
the proper Person or Persons and shall have no liability in acting, or
omitting to act, where such action or omission to act is in reasonable
reliance upon any statement or opinion contained in any such document or
instrument.
Section 5.05. SUCCESSOR COLLATERAL AGENT.
(a) MERGER. Any Person into which the Collateral Agent may be
converted or merged, or with which it may be consolidated, or to
which it may sell or transfer its trust business and assets as a
whole or substantially as a whole, or any Person resulting from any
such conversion, merger, consolidation, sale or transfer to which
the Collateral Agent is a party, shall (provided it is otherwise
qualified to serve as the Collateral Agent hereunder) be and become
a successor Collateral Agent hereunder and be vested with all of the
title to and interest in the Collateral and all of the trusts,
powers, discretions, immunities, privileges and other matters as was
its predecessor without the execution or filing of any instrument or
any further act, deed or conveyance on the part of any of the
parties hereto, anything herein to the contrary notwithstanding,
except to the extent, if any, that any such action is necessary to
perfect, or continue the perfection of, the security interest of
Financial Security in the Collateral.
(b) RESIGNATION. The Collateral Agent and any successor
Collateral Agent may resign only (i) upon a determination that by
reason of a change in legal requirements the performance of its
duties under this Agreement would cause it to be in violation of
such legal requirements in a manner which would result in a material
adverse effect on the
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Collateral Agent, and Financial Security does not elect to waive the
Collateral Agent's obligation to perform those duties which render
it legally unable to act or elect to delegate those duties to
another Person, or (ii) with the prior written consent of Financial
Security, such consent not to be unreasonably withheld. The
Collateral Agent shall give not less than 60 days' prior written
notice of any such permitted resignation by registered or certified
mail to Financial Security and the Seller; PROVIDED, that such
resignation shall take effect only upon the date which is the latest
of (i) the effective date of the appointment of a successor
Collateral Agent and the acceptance in writing by such successor
Collateral Agent of such appointment and of its obligation to
perform its duties hereunder in accordance with the provisions
hereof, (ii) delivery of the related Collateral to such successor to
be held in accordance with the procedures specified in Article III
hereof, and (iii) receipt by Financial Security of an Opinion of
Counsel to the effect described in Section 6.02. Notwithstanding the
preceding sentence, if by the contemplated date of resignation
specified in the written notice of resignation delivered as
described above no successor Collateral Agent or temporary successor
Collateral Agent has been appointed Collateral Agent or becomes the
Collateral Agent pursuant to subsection (d) hereof, the resigning
Collateral Agent may petition a court of competent jurisdiction in
New York, New York for the appointment of a successor.
(c) REMOVAL. The Collateral Agent may be removed by Financial
Security at any time, with or without cause, by an instrument or
concurrent instruments in writing delivered to the Collateral Agent
and the Issuer. A temporary successor may be removed at any time to
allow a successor Collateral Agent to be appointed pursuant to
subsection (d) below. Any removal pursuant to the provisions of this
subsection (c) shall take effect only upon the date which is the
latest of (i) the effective date of the appointment of a successor
Collateral Agent and the acceptance in writing by such successor
Collateral Agent of such appointment and of its obligation to
perform its duties hereunder in accordance with the provisions
hereof, (ii) delivery of the Collateral to such successor to be held
in accordance with the procedures specified in Article III and
Section 8.15 hereof and (iii) receipt by Financial Security and the
Administrative Agent of an Opinion of Counsel to the effect
described in Section 6.02.
(d) ACCEPTANCE BY SUCCESSOR. Financial Security shall have
the sole right to appoint each successor Collateral Agent. Every
temporary or permanent successor Collateral Agent appointed
hereunder shall execute, acknowledge and deliver to its predecessor
and to the Seller an instrument in writing accepting such
appointment hereunder and the relevant predecessor shall execute,
acknowledge and deliver such other documents and instruments as will
effectuate the delivery of all related Collateral to the successor
Collateral Agent to be held in accordance with the procedures
specified in Article III and Section 8.15 hereof, whereupon such
successor, without any further act, deed or conveyance, shall become
fully vested with all the estates, properties, rights, powers,
duties and obligations of its predecessor. Such predecessor shall,
nevertheless, on the written request of either Financial Security or
the Seller, execute and deliver an instrument transferring to such
successor all the estates, properties, rights and powers of such
predecessor hereunder. In the event that any instrument in writing
from the Seller or Financial Security is reasonably required by a
successor Collateral Agent to more fully and certainly vest in such
successor the estates, properties, rights, powers, duties and
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obligations vested or intended to be vested hereunder in the
Collateral Agent, any and all such written instruments shall, at the
request of the temporary or permanent successor Collateral Agent, be
forthwith executed, acknowledged and delivered by the Issuer. The
designation of any successor Collateral Agent and the instrument or
instruments removing the Collateral Agent and appointing a successor
hereunder, together with all other instruments provided for herein,
shall be maintained with the records relating to the related
Collateral and, to the extent required by applicable law, filed or
recorded by the successor Collateral Agent in each place where such
filing or recording is necessary to effect the transfer of the
related Collateral to the successor Collateral Agent or to protect
or continue the perfection of the security interests granted
hereunder.
Section 5.06. INDEMNIFICATION. The Seller shall indemnify the
Collateral Agent, its directors, officers, employees and agents for, and hold
the Collateral Agent, its directors, officers, employees and agents harmless
against, any loss, liability or expense (including the costs and expenses of
defending against any claim of liability) arising out of or in connection
with the Collateral Agent's acting as Collateral Agent hereunder, except such
loss, liability or expense as shall result from the gross negligence, bad
faith or willful misconduct of the Collateral Agent or its officers,
employees, directors or agents. The obligation of the Seller under this
Section shall survive the termination of this Agreement and the resignation
or removal of the Collateral Agent.
Section 5.07. COMPENSATION AND REIMBURSEMENT. The Seller agrees for
the benefit of Financial Security and as part of the Secured Obligations (a)
to pay to the Collateral Agent, from time to time, reasonable compensation
for all services rendered by it hereunder (which compensation shall not be
limited by any provision of law in regard to the compensation of a collateral
trustee); and (b) to reimburse the Collateral Agent upon its request for all
reasonable expenses, disbursements and advances incurred or made by the
Collateral Agent in accordance with any provision of, or carrying out its
duties and obligations under, this Agreement (including the reasonable
compensation and fees and the expenses and disbursements of its agents, any
independent certified public accountants and independent counsel), except any
expense, disbursement or advances as may be attributable to gross negligence,
bad faith or willful misconduct on the part of the Collateral Agent.
Section 5.08. REPRESENTATIONS AND WARRANTIES OF BANK ONE. Bank One
represents and warrants to the Seller and to Financial Security as follows:
(a) DUE ORGANIZATION. Bank One is a national banking
association, duly organized, validly existing and in good standing
under the laws of the United States and is duly authorized and
licensed under applicable law to conduct its business as presently
conducted.
(b) CORPORATE POWER. Bank One has all requisite right, power
and authority to execute and deliver this Agreement and to perform all
of its duties as Collateral Agent hereunder.
(c) DUE AUTHORIZATION. The execution and delivery by Bank One
of this Agreement, and the performance by Bank One of its duties
hereunder, have been duly
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authorized by all necessary corporate proceedings and no further
approvals or filings, including any governmental approvals, are
required for the valid execution and delivery by Bank One, or the
performance by Bank One, of this Agreement.
(d) VALID AND BINDING AGREEMENT. Bank One has duly executed
and delivered this Agreement and each other Transaction Document to
which it is a party, and each of this Agreement and each such other
Transaction Document constitutes the legal, valid and binding
obligation of Bank One, enforceable against Bank One, in accordance
with its terms, except as (i) such enforceability may be limited by
bankruptcy, insolvency, reorganization and similar laws relating to or
affecting the enforcement of creditors' rights generally and (ii) the
availability of equitable remedies may be limited by equitable
principles of general applicability.
Section 5.09. WAIVER OF SETOFFS. The Collateral Agent hereby
expressly waives any and all rights of setoff that the Collateral Agent may
otherwise at any time have under applicable law with respect to any RCCA and
agrees that amounts in the RCCAs shall at all times be held and applied
without deduction for any counterclaims, defenses, recoupments or set-offs in
accordance with the provisions hereof.
Section 5.10. CONTROL BY FINANCIAL SECURITY. The Collateral Agent
shall comply with notices and instructions given by the Seller only if
accompanied by the written consent of Financial Security, except that if any
default under this Agreement shall have occurred and be continuing, the
Collateral Agent shall act upon and comply with notices and instructions
given by Financial Security alone in the place and stead of the Seller. After
the lien in favor of the Collateral Agent for the benefit of Financial
Security is terminated, the Collateral Agent shall act upon and comply with
the written instructions given by the Lender Collateral Agent.
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ARTICLE VI
COVENANTS OF THE SELLER
Section 6.01. PRESERVATION OF COLLATERAL. Subject to the rights,
powers and authorities granted to the Collateral Agent and Financial Security
in this Agreement, the Seller shall take such action as is necessary and
proper with respect to the Collateral in order to preserve and maintain such
Collateral and to cause (subject to the rights of Financial Security) the
Collateral Agent to perform its obligations with respect to such Collateral
as provided herein. The Seller will do, execute, acknowledge and deliver, or
cause to be done, executed, acknowledged and delivered, such instruments of
transfer or take such other steps or actions as may be necessary, or required
by Financial Security, to perfect the Security Interests granted hereunder in
the Collateral, to ensure that such Security Interests rank prior to all
other Liens and to preserve the priority of such Security Interests and the
validity and enforceability thereof. Upon any delivery or substitution of
Collateral, the Seller shall be obligated to execute such documents and
perform such actions as are necessary to create in the Collateral Agent for
the benefit of Financial Security a valid first Lien on, and valid and
perfected, first priority security interest in, the Collateral so delivered
and to deliver such Collateral to the Collateral Agent, free and clear of any
other Lien together with satisfactory assurances thereof, and to pay any
reasonable costs incurred by either Financial Security or the Collateral
Agent (including its agents) or otherwise in connection with such delivery.
Section 6.02. OPINIONS AS TO COLLATERAL. Not more than 90 days nor
less than 30 days prior to (i) each May 1, commencing May 1, 2000, during the
term of this Agreement and (ii) each date on which the Seller proposes to
take any action contemplated by Section 6.05, the Seller shall, at its own
cost and expense, furnish to Financial Security, the Administrative Agent and
the Collateral Agent an Opinion of Counsel either (a) stating that, in the
opinion of such counsel, such action has been taken with respect to the
execution and filing of any financing statements and continuation statements
and other actions as are necessary to perfect, maintain and protect the lien
and security interest of the Collateral Agent (and the priority thereof) on
behalf of Financial Security, with respect to such Collateral against all
creditors of and purchasers from the Seller and reciting the details of such
action, or (b) stating that, in the opinion of such counsel, no such action
is necessary to maintain such perfected lien and security interest. Such
Opinion of Counsel shall further describe each execution and filing of any
financing statements and continuation statements and such other actions as
will, in the opinion of such counsel, be required to perfect, maintain and
protect the lien and security interest of the Collateral Agent, on behalf of
Financial Security, with respect to such Collateral against all creditors of
and purchasers from the Seller for a period, specified in such Opinion,
continuing until a date not earlier than eighteen months from the date of
such Opinion.
Section 6.03. WAIVER OF STAY OR EXTENSION LAWS; MARSHALING OF ASSETS.
The Seller covenants, to the fullest extent permitted by applicable law, that it
will not at any time insist upon, plead, or in any manner whatsoever claim or
take the benefit or advantage of, any appraisement, valuation, stay, extension
or redemption law wherever enacted, now or at any time hereafter in force, in
order to prevent or hinder the enforcement of this Agreement or any absolute
sale of the Collateral or any part thereof, or the possession thereof by any
purchaser at any sale under Article VI of this Agreement; and the Seller, to the
fullest extent permitted by
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applicable law, for itself and all who may claim under it, hereby waives the
benefit of all such laws, and covenants that it will not hinder, delay or
impede the execution of any power herein granted to the Collateral Agent, but
will suffer and permit the execution of every such power as though no such
law had been enacted. The Seller, for itself and all who may claim under it,
waives, to the fullest extent permitted by applicable law, all right to have
the Collateral marshaled upon any foreclosure or other disposition thereof.
Section 6.04. NONINTERFERENCE, ETC. The Seller shall not (i) waive or
alter any of its rights under the Collateral (or any agreement or instrument
relating thereto) without the prior written consent of Financial Security; or
(ii) fail to pay any tax, assessment, charge or fee levied or assessed against
the Collateral, or to defend any action, if such failure to pay or defend may
adversely affect the priority or enforceability of the Seller's right, title or
interest in and to the Collateral or the Collateral Agent's lien on, and
security interest in, the Collateral for the benefit of Financial Security; 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.
Section 6.05. SELLER CHANGES.
(a) CHANGE IN NAME, STRUCTURE, ETC. The Seller shall not
change its name, identity or structure unless it shall have given each
Financial Security, the Collateral Agent and the Administrative Agent
at least 30 days' prior written notice thereof, shall have effected any
necessary or appropriate assignments or amendments thereto and filings
of financing statements or amendments thereto, and shall have delivered
to the Collateral Agent and Financial Security an Opinion of Counsel of
the type described in Section 6.02.
(b) RELOCATION OF THE SELLER. The Seller shall not change its
principal executive office unless it gives Financial Security and the
Collateral Agent at least 30 days' prior written notice of any
relocation of its principal office. If the Seller relocates its
principal office or principal place of business from Nevada, the Seller
shall give prior notice thereof to Financial Security and the
Collateral Agent and shall effect whatever appropriate recordations and
filings are necessary and shall provide to Financial Security and the
Collateral Agent an Opinion of Counsel, to the effect that, upon the
recording of any necessary assignments or amendments to
previously-recorded assignments and filing of any necessary amendments
to the previously filed financing or continuation statements or upon
the filing of one or more specified new financing statements, and the
taking of such other actions as may be specified in such opinion, the
security interests in the Collateral shall remain, after such
relocation, valid and perfected.
ARTICLE VII
REMEDIES UPON DEFAULT
Section 7.01. REMEDIES UPON A FORECLOSURE EVENT OF DEFAULT OR OTHER
DEFAULT. If a Foreclosure Event of Default with respect to this Agreement has
occurred and is continuing, the Collateral Agent shall, at the direction of
Financial Security, take whatever action at law or in equity as may appear
necessary or desirable in the judgment of Financial Security to collect and
satisfy all Insurer Secured Obligations (including, but not limited to,
foreclosure upon the related
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Collateral and all other rights available to secured parties under applicable
law) or to enforce performance and observance of any obligation, agreement or
covenant under this Agreement. If any default other than a Foreclosure Event
of Default has occurred and is continuing, then Financial Security shall have
all rights and remedies, other than set-off or foreclosure without judicial
action provided to secured creditors at law or in equity and may take or
instruct the Collateral Agent to take any legal action, other than set-off or
foreclosure without judicial action, as may be available to secured
creditors. Any default, breach of representation or breach of warranty under
the Subordination Agreement and the Underlying Transaction Documents shall
constitute a default hereunder. Upon a Foreclosure Event of Default, any
Eligible Investment disposed of prior to maturity shall be sold in a
recognized market for such Eligible Investment and for the best obtainable
price on such market; and cash may be applied to satisfy the Insurer Secured
Obligations.
Section 7.02. WAIVER OF DEFAULT. Financial Security shall have the
sole right, to be exercised in its complete discretion, to waive any default
hereunder (except a default under Section 8.15) until the lien in favor of
the Collateral Agent for the benefit of Financial Security is terminated by a
writing setting forth the terms, conditions and extent of such waiver signed
by Financial Security and delivered to the Collateral Agent, the
Administrative Agent and AFS. Any such waiver shall be binding upon the
Collateral Agent. Unless such writing expressly provides to the contrary, any
waiver so granted shall extend only to the specific event or occurrence which
gave rise to the default so waived and not to any other similar event or
occurrence which occurs subsequent to the date of such waiver.
Section 7.03. RESTORATION OF RIGHTS AND REMEDIES. If the Collateral
Agent has instituted any proceeding to enforce any right or remedy under this
Agreement, and such proceeding has been discontinued or abandoned for any
reason, or has been determined adversely to the Collateral Agent, then and in
every such case the Seller, the Collateral Agent and Financial Security 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 Financial Security shall continue as though no such proceeding had
been instituted.
Section 7.04. NO REMEDY EXCLUSIVE. No right or remedy herein conferred
upon or reserved to the Collateral Agent or Financial Security is intended to be
exclusive of any other right or remedy, and every right or remedy shall, to the
extent permitted by law, be cumulative and in addition to every other right and
remedy given hereunder or now or hereafter existing at law, in equity or
otherwise (but, in each case, shall be subject to the provisions of this
Agreement limiting such remedies), and each and every right, power and remedy
whether specifically herein given or otherwise existing may be exercised from
time to time and as often and in such order as may be deemed expedient by
Financial Security, and the exercise of or the beginning of the exercise of any
right or power or remedy shall not be construed to be a waiver of the right to
exercise at the same time or thereafter any other right, power or remedy.
ARTICLE VIII
MISCELLANEOUS
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Section 8.01. FURTHER ASSURANCES. Each party hereto shall take such
action and deliver such instruments to any other party hereto, in addition to
the actions and instruments specifically provided for herein, as may be
reasonably requested or required to effectuate the purpose or provisions of this
Agreement or to confirm or perfect any transaction described or contemplated
herein.
Section 8.02. WAIVER. Any waiver by any party of any provision of this
Agreement or any right, remedy or option hereunder shall only prevent and estop
such party from thereafter enforcing such provision, right, remedy or option if
such waiver is given in writing and only as to the specific instance and for the
specific purpose for which such waiver was given. The failure or refusal of any
party hereto to insist in any one or more instances, or in a course of dealing,
upon the strict performance of any of the terms or provisions of this Agreement
by any party hereto or the partial exercise of any right, remedy or option
hereunder shall not be construed as a waiver or relinquishment of any such term
or provision, but the same shall continue in full force and effect.
Section 8.03. AMENDMENTS, WAIVERS. No amendment, modification, waiver
or supplement to this Agreement or any provision of this Agreement shall in any
event be effective unless the same shall have been made or consented to in
writing by each of the parties hereto.
Section 8.04. SEVERABILITY. In the event that any provision of this
Agreement or the application thereof to any party hereto or to any circumstance
or in any jurisdiction governing this Agreement shall, to any extent, be invalid
or unenforceable under any applicable statute, regulation or rule of law, then
such provision shall be deemed inoperative to the extent that it is invalid or
unenforceable and the remainder of this Agreement, and the application of any
such invalid or unenforceable provision to the parties, jurisdictions or
circumstances other than to whom or to which it is held invalid or
unenforceable, shall not be affected thereby nor shall the same affect the
validity or enforceability of any other provision of this Agreement. The parties
hereto further agree that the holding by any court of competent jurisdiction
that any remedy pursued by the Collateral Agent, or Financial Security,
hereunder is unavailable or unenforceable shall not affect in any way the
ability of the Collateral Agent or any of Financial Security to pursue any other
remedy available to it or them (subject, however, to the provisions of this
Agreement limiting such remedies).
Section 8.05. NOTICES. All notices, demands, certificates, requests
and communications hereunder ("NOTICES") shall be in writing and shall be
effective (a) upon receipt when sent through the U.S. mails, registered or
certified mail, return receipt requested, postage prepaid, with such receipt
to be effective the date of delivery indicated on the return receipt, or (b)
one Business Day after delivery to an overnight courier, or (c) on the date
personally delivered to an Authorized Officer of the party to which sent, or
(d) on the date transmitted by legible telecopier transmission with a
confirmation of receipt, in all cases addressed to the recipient as follows:
(i) If to the Seller:
AFS Funding Corp.
639 Isbell Road, Suite 390
Reno, Nevada 89509
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Attention: Chief Financial Officer
Telecopier No.: (702) 322-8808
with a copy to
AmeriCredit Corp.
801 Cherry Street, Suite 3900
Fort Worth, Texas 76102
Attention: Treasurer
Telecopier No.: (817) 302-7492
(ii) If to Financial Security:
Financial Security Assurance Inc.
350 Park Avenue - 13th Floor
New York, New York 10022
Attention: Transaction Oversight Department
Telecopier No.: (212) 339-3518
(212) 339-3529
(in each case in which notice or other communication to
Financial Security refers to a Foreclosure Event of Default,
a claim on the Policy or in which failure on the part of
Financial Security to respond shall be deemed to constitute
consent or acceptance, then a copy of such notice or other
communication should also be sent to the attention of each of
the General Counsel and the Head-Financial Guaranty Group and
shall be marked to indicate "URGENT MATERIAL ENCLOSED.")
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(iii) If to Bank One as Collateral Agent:
Bank One Trust Company
100 Broad Street, 8th Floor
Columbus, OH 43215
Attention: Corporate Trust Office
Telecopier No.: (614) 248-5195
(iv) If to Administrative Agent:
Credit Suisse First Boston, New York Branch
11 Madison Avenue
New York, New York 10010
Attention: Asset Finance
Telecopier No.: (212) 325-6677
A copy of each notice given hereunder to any party hereto shall also be given to
(without duplication) Financial Security, the Administrative Agent, the Seller
and the Collateral Agent. Each party hereto may, by notice given in accordance
herewith to each of the other parties hereto, designate any further or different
address to which subsequent notices shall be sent.
Section 8.06. TERM OF THIS AGREEMENT. This Agreement shall take effect
on the Closing Date of the Series 1999-D Notes and shall continue in effect
until all amounts on deposit in the RCCAs have been distributed pursuant to the
terms hereof. On such final distribution date, this Agreement shall terminate,
all obligations of the parties hereunder shall cease and terminate, PROVIDED
that the provisions of Sections 5.06 and 5.07 shall survive any termination of
this Agreement.
Section 8.07. ASSIGNMENTS: THIRD-PARTY RIGHTS; REINSURANCE.
(a) This Agreement shall be a continuing obligation of the
parties hereto and shall (i) be binding upon the parties and their
respective successors and assigns, and (ii) inure to the benefit of and
be enforceable by Financial Security and the Collateral Agent, and by
their respective successors, transferees and assigns. The Seller may
not assign this Agreement, or delegate any of its duties hereunder,
without the prior written consent of Financial Security.
(b) Financial Security shall have the right (unless a
Financial Security Default shall have occurred and be continuing) to
give participations in its rights under this Agreement and to enter
into contracts of reinsurance with respect to any Policy issued in
connection with a Series and each such participant or reinsurer shall
be entitled to the benefit of any representation, warranty, covenant
and obligation of each party (other than Financial Security) hereunder
as if such participant or reinsurer was a party hereto and,
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subject only to such agreement regarding such reinsurance or
participation, shall have the right to enforce the obligations of
each such other party directly hereunder; PROVIDED, HOWEVER, that no
such reinsurance or participation agreement or arrangement shall
relieve Financial Security of its obligations hereunder or under any
such Policy. In addition, nothing contained herein shall restrict
Financial Security from assigning to any Person pursuant to any
liquidity facility or credit facility any rights of Financial
Security under this Agreement or with respect to any real or
personal property or other interests pledged to Financial Security,
or in which Financial Security has a security interest, in
connection with the transactions contemplated hereby. The terms of
any such assignment or participation shall contain an express
acknowledgment by such Person of the condition of this Section and
the limitations of the rights of Financial Security hereunder.
(c) The Lender Collateral Agent shall be a third party
beneficiary of the agreements set forth in Section 8.15.
(d) The Administrative Agent shall be a third party
beneficiary of this Agreement.
Section 8.08. CONSENT OF FINANCIAL SECURITY. In the event that
Financial Security's consent is required under the terms hereof or under the
terms of any Transaction Document, it is understood and agreed that, except as
otherwise provided expressly herein, the determination whether to grant or
withhold such consent shall be made solely by Financial Security in its sole
discretion.
Section 8.09. TRIAL BY JURY WAIVED. Each of the parties hereto waives,
to the fullest extent permitted by law, any right it may have to a trial by jury
in respect of any litigation arising directly or indirectly out of, under or in
connection with this Agreement or any of the transactions contemplated
hereunder. Each of the parties hereto (a) certifies that no representative,
agent or attorney of any other party has represented, expressly or otherwise,
that such other party would not, in the event of litigation, seek to enforce the
foregoing waiver and (b) acknowledges that it has been induced to enter into
this Agreement by among other things, this waiver.
Section 8.10. GOVERNING LAW. This Agreement shall be governed by and
construed, and the obligations, rights and remedies of the parties hereunder
shall be determined, in accordance with the law of the State of New York.
Section 8.11. CONSENTS TO JURISDICTION. Each of the parties hereto
irrevocably submits to the jurisdiction of the United States District Court for
the Southern District of New York, any court in the state of New York located in
the city and county of New York, and any appellate court from any thereof, in
a