Revolver Security And Collateral Agreement

Exhibit 10.76


EXECUTION COPY


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REVOLVER SECURITY AND COLLATERAL AGENT AGREEMENT


among


DEUTSCHE BANK TRUST COMPANY AMERICAS,


as Administrative Agent and


as Lender Collateral Agent


AMERICREDIT FINANCIAL SERVICES, INC.,


and


AFS FUNDING CORP.,


and


AFS SENSUB CORP.


as Borrowers


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Dated as of August 15, 2002


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REVOLVER SECURITY AND COLLATERAL AGENT AGREEMENT


REVOLVER SECURITY AND COLLATERAL AGENT AGREEMENT dated as of August 15, 2002 among DEUTSCHE BANK TRUST COMPANY AMERICAS, as administrative agent for the Lenders (in such capacity, the "Administrative Agent") and as the lender collateral agent for the Lenders (in such capacity, the "Lender Collateral Agent"), AFS FUNDING CORP., a Nevada corporation and AFS SENSUB CORP., a Nevada corporation (together with AFS Funding Corp., each a "Borrower" and collectively, the "Borrowers"), and AMERICREDIT FINANCIAL SERVICES, INC., a Delaware corporation ("ACFS").


W I T N E S S E T H :


WHEREAS, the Borrowers have sold and contemplate selling, from time to time, pools of receivables to various trusts which have issued or may issue various series of notes or certificates (each a "Series") which will be repaid from the proceeds of, or represent an interest in, such pools of receivables;


WHEREAS, the Borrowers have requested that the Lenders establish a revolving line of credit to the Borrowers, which line of credit will be secured by certain securities rated at least Ba2 by Moody's and BB by S&P of various Series, guarantees in respect of such securities and certain amounts payable to the Borrowers with respect to other Series;


WHEREAS, upon the terms and conditions contained in the Credit Agreement (as hereinafter defined) and the other Transaction Agreements, the Lenders are willing to provide such a line of credit to the Borrowers; and


WHEREAS, ACFS will service each Series.


NOW, THEREFORE, ACFS, the Borrowers, the Lender Collateral Agent and the Administrative Agent, intending to be legally bound, hereby agree as follows:


Section 1 Definitions. For all purposes of this Agreement, the following terms shall have the meanings set forth below and the following terms which are defined in the Uniform Commercial Code in effect in the State of New York from time to time are used herein as so defined: Accounts, Documents, Instruments and Proceeds. Capitalized terms used herein but not otherwise defined shall have the meanings set forth in the Credit Agreement.


"Accrual Period" shall mean, with respect to any Distribution Date, the period from and including the previous Distribution Date (or, in the case of the first Distribution Date, from and including the Closing Date) through and including the day preceding such Distribution Date.


"ACFS" has the meaning specified in the Preamble.


"Adverse Claim" has the meaning set forth in Section 8-102(a)(1) of Article 8.


"Administrative Agent" has the meaning specified in the Preamble.


"Agreement" means this Revolver Security and Collateral Agent Agreement, as it may be amended, supplemented or otherwise modified from time to time.


"Article 8" means UCC, Revised Article 8, Investment Securities (with conforming and miscellaneous amendments to Articles 1, 3, 4, 5, 9 and 10), 1994 Official Text, as adopted by the American Law Institute and the National Conference of Commissioners on Uniform State Laws. Unless the context requires otherwise, "Article 8" means such version in the form in which it is adopted in the applicable jurisdiction.


"Available Funds" has the meaning specified in Section 6.


"Borrower" or "Borrowers" has the meaning specified in the Preamble.


"Borrower Agreements" has the meaning set forth in Section 4.


"Capped Expenses" means, at any time, with respect to each of the Lender Collateral Agent and the Administrative Agent, fees, costs and expenses due at such time (if any) to the Lender Collateral Agent or the Administrative Agent under the Transaction Documents not in excess of $7,500 with respect to any Distribution Date.


"Certificated Security" has the meaning set forth in Section 8-102(a)(4) of Article 8.


"Clearing Corporation" has the meaning set forth in Section 8-102(a)(5) of Article 8.


"Clearing Corporation Security" means a "Security" (as defined in Section 8-102(a)(15) of Article 8) that is in the physical possession of, or registered in the name of, a Clearing Corporation or its nominee.


"Collateral Account" has the meaning set forth in Section 7.


"Control": with respect to any Federal Book Entry Security, the Lender Collateral Agent shall have obtained control if:


(i) the Lender Collateral Agent is a participant in the book entry
system maintained by the Federal Reserve Bank that is acting as fiscal
agent for the issuer of such Federal Book Entry Security, and such
Federal Reserve Bank has indicated by book entry that such Federal Book
Entry Security has been credited to the Lender Collateral Agent's
securities account in such book entry system; or


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(ii) the Lender Collateral Agent is registered solely in its name
on the records of a Securities Intermediary as the person having a
Security Entitlement in respect of such Federal Book Entry Security
against such Securities Intermediary; and (b) the Securities Intermediary
is a participant in the book entry system maintained by the Federal
Reserve Bank that is acting as fiscal agent for the issuer of such
Federal Book Entry Security; and (c) such Federal Reserve Bank has
indicated by book entry that such Federal Book Entry Security has been
credited to the Securities Intermediary's securities account in such book
entry system.


"Credit Agreement" means the Credit Agreement, dated as of the date hereof, among the Borrowers, the Contingent Obligors, each Lender party thereto, each Agent party thereto, the Lender Collateral Agent and the Administrative Agent, as amended, extended or otherwise modified from time to time.


"Delivery": when used with respect to Revolver Account Collateral, "Delivery" means:


(i) with respect to Physical Property, transfer thereof to the
Lender Collateral Agent or its nominee or custodian by physical delivery
to the Lender Collateral Agent or its nominee or custodian endorsed to,
or registered in the name of, the Lender Collateral Agent or its nominee
or custodian or endorsed in blank;


(ii) with respect to a Certificated Security, transfer of such
Certificated Security to the Lender Collateral Agent or its nominee or
custodian by physical delivery to the Lender Collateral Agent or its
nominee or custodian, endorsed to, or registered in the name of, the
Lender Collateral Agent or its nominee or custodian or endorsed in blank;
and


(iii) with respect to any such Revolver Account Collateral that
constitutes an Uncertificated Security (including any investments in
money market mutual funds, but excluding any Federal Book Entry
Security), (A) registration of the Lender Collateral Agent as the
registered owner by the issuer, or (B) satisfaction of the requirements
for obtaining "control" pursuant to Section 8-106(c)(2) of Article 8.


"Eligible Account" means (i) a segregated trust account maintained with the Lender Collateral Agent or (ii) a segregated trust account maintained with a depository institution or trust company organized under the laws of the United States of America, or any of the States thereof, or the District of Columbia, having a certificate of deposit, short term deposit or commercial paper rating of at least A-1 by Standard & Poor's and P-1 by Moody's. Except in the event of a transfer pursuant to Section 7(a), such depository institution or trust company shall have been approved by written notice from ACFS.


"Entitlement Order" has the meaning set forth in Section 8-102(a)(8) of Article 8.


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"Federal Book Entry Security" means an obligation (i) issued by the U.S. Treasury, the Federal Home Loan Mortgage Corporation or the Federal National Mortgage Association, or any other direct obligation of, or obligation fully guaranteed as to timely payment or principal and interest by, the United States of America, that is a book-entry security held through the Federal Reserve System pursuant to Federal book entry regulations, and (ii) the perfection of a security interest in which is governed pursuant to federal regulations by Article 8.


"Financial Asset" has the meaning set forth in Section 8-102(a)(9) of Article 8.


"Increased Costs" means collectively, any increased cost, loss or liability owing to the Administrative Agent and/or any other Affected Party under Sections 2.10, 2.11 and 2.13 of the Credit Agreement.


"Indemnity Amounts" means, collectively, all indemnity obligations and other amounts owing to the Administrative Agent, any Lender, any Agent and/or any other Indemnified Party under Section 8.04 of the Credit Agreement.


"Instruments" has the meaning set forth in Section 9-105(l)(i) of Article 8.


"Interest Reserve Account" has the meaning set forth in Section 7.


"Investment Property" has the meaning set forth in Section 9-115(1)(f) of Article 8.


"Lender Collateral Agent" has the meaning specified in the Preamble.


"Obligations" means all obligations (monetary or otherwise) of the Borrowers to the Lenders, the Agents, the Lender Collateral Agent, the Administrative Agent or any Affected Party arising under or in connection with this Agreement, the Credit Agreement and each other Transaction Document.


"Permitted Liens" means, with respect to any Person, (i) any Lien for taxes, assessments or other governmental charges or levies not yet subject to penalties for non-payment or the validity, applicability or amount of which is being contested in good faith by appropriate legal proceedings and with respect to which adequate reserves in accordance with GAAP have been established by such Person; (ii) any Lien which is imposed by law (such as those of mechanics, carriers and warehousemen), if payment of the obligation secured thereby is not yet due or the validity, the applicability or amount of which is being contested in good faith by appropriate legal proceedings and with respect to which adequate reserves in accordance with GAAP have been established by such Person; and (iii) judgment Liens in existence less than five days after the entry thereof or with respect to which execution has been stayed, so long as the aggregate amount of all such judgment Liens at any time does not exceed $100,000, or judgment Liens the payment of which is covered in full (subject to a customary deductible) by insurance.


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"Physical Property" means personal property constituting Instruments, including bankers' acceptances, commercial paper, negotiable certificates of deposit and other obligations that are susceptible of physical delivery.


"Revolver Account Collateral" has the meaning set forth in Section 3.


"Revolver Collateral" has the meaning set forth in Section 3.


"Secured Parties" means, collectively, the Administrative Agent, each Agent, each Lender, the Lender Collateral Agent, each Affected Party, and their respective successors and assigns and, to the extent of monies available pursuant to Clause SIXTH of Section 6, the "Secured Parties" under the Master Collateral and Intercreditor Agreement, as their interests may appear.


"Securities Account" has the meaning set forth in Section 8-501(a) of Article 8.


"Security Entitlement" has the meaning set forth in Section 8-102(a)(17) of Article 8.


"Securities Intermediary" has the meaning set forth in Section 8-102(a)(14) of Article 8.


"Series" has the meaning set forth in the recitals.


"Trust Account" has the meaning set forth in Section 7.


"UCC" means the Uniform Commercial Code as in effect in each relevant jurisdiction.


"Uncertificated Security" has the meaning set forth in Section 8-102(a)(18) of Article 8.


Section 2 Appointment of Lender Collateral Agent. Pursuant to Section 7.01(b) of the Credit Agreement, the Lenders have appointed Deutsche Bank Trust Company Americas as Lender Collateral Agent, and Deutsche Bank Trust Company Americas hereby accepts such appointment.


Section 3 Borrowers' Grant of Security Interest. As security for the prompt payment or performance in full when due, whether at stated maturity, by acceleration or otherwise, of all Obligations (including, without limitation, Advances, interest and other amounts at any time owing under the Credit Agreement) and of all amounts secured by the Master Collateral and Intercreditor Agreement, each Borrower hereby assigns and pledges to the Lender Collateral Agent, for the benefit of the Secured Parties, and grants to the Lender Collateral Agent, for the benefit of the Secured Parties, a perfected security interest in and lien upon, all of


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such Borrower's right, title and interest in and to the following, in each case whether now or hereafter existing or in which such Borrower now has or hereafter acquires an interest and wherever the same may be located (collectively, the "Revolver Collateral"):


(a) each Asset Backed Security Delivered to the Lender
Collateral Agent;


(b) all of the following (the "Revolver Account Collateral"):


(1) the Collateral Account and all funds held in the
Collateral Account and all certificates and instruments, if
any, from time to time representing or evidencing the
Collateral Account or such funds,


(2) the Interest Reserve Account and all funds held
in the Interest Reserve Account and all certificates and
instruments, if any, from time to time representing or
evidencing the Interest Reserve Account or such funds,


(3) all investments from time to time of amounts in
the Collateral Account or the Interest Reserve Account, and
all certificates and instruments, if any, from time to time
representing or evidencing such investments,


(4) all Clearing Corporation Securities,
Certificated Securities, Uncertificated Securities, Federal
Book-Entry Securities, Security Entitlements, Investment
Property, notes, certificates of deposit and other
instruments from time to time delivered to or otherwise
possessed by the Lender Collateral Agent or any Secured
Party or any assignee, agent or Securities Intermediary on
behalf of the Lender Collateral Agent or any Secured Party
in substitution for or in addition to any of the then
existing Revolver Account Collateral, and


(5) 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 Revolver Account Collateral;


(c) all additional property, including, without limitation, all
rights under any Interest Rate Caps, that may from time to
time hereafter be granted and pledged by the Borrowers or
by anyone on its behalf under this Agreement, including the
deposit with the Lender Collateral Agent of additional
moneys by the Borrowers; and


(d) all Proceeds, accessions, substitutions, rents and profits
of any and all of the foregoing Revolver Collateral
(including proceeds that constitute


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property of the types described in paragraphs (a) through (c)
above) and, to the extent not otherwise included, all payments
under insurance (whether or not the Lender Collateral Agent or a
Secured Party or any assignee or agent on behalf of the Lender
Collateral Agent or a Secured Party is the loss payee thereof) or
any indemnity, warranty or guaranty payable by reason of loss,
nonpayment or damage to or otherwise with respect to any of the
foregoing Revolver Collateral.


Section 4 Borrowers Remain Liable. Notwithstanding anything in this Agreement, (a) except to the extent of ACFS's duties under the Credit Agreement and this Agreement, each Borrower shall remain liable under the Series Transaction Documents to which it is a party (the "Borrower Agreements") to perform all of its duties and obligations thereunder to the same extent as if this Agreement had not been executed, (b) the exercise by a Secured Party or the Lender Collateral Agent of any of its rights under this Agreement or the Credit Agreement shall not release any Borrower or ACFS from any of their respective duties or obligations under the Borrower Agreements to which it is a party or other agreements included in the Revolver Collateral, (c) the Administrative Agent, the Secured Parties and the Lender Collateral Agent shall not have any obligation or liability under the Borrower Agreements or other agreements included in the Revolver Collateral by reason of this Agreement or the Credit Agreement, and (d) neither the Administrative Agent, the Lender Collateral Agent nor any of the Secured Parties shall be obligated to perform any of the obligations or duties of the Borrowers or ACFS under the Borrower Agreements or other agreements included in the Revolver Collateral or to take any action to collect or enforce any claim for payment assigned under this Agreement.


Section 5 Covenants of ACFS Regarding the Collateral.


(a) Offices and Records. Each of ACFS and the Borrowers will permit, at the expense of ACFS, representatives of the Administrative Agent, the Agents and the Lender Collateral Agent at any time and from time to time during normal business hours (i) to inspect and make copies of and abstracts from its records regarding the Revolver Collateral and Designated Term Series, and (ii) to visit the properties of the Borrowers or ACFS utilized in connection with the servicing of the Designated Series for the purpose of examining such records, and to discuss matters relating to the Designated Series or the Borrowers' or ACFS' performance under this Agreement and the other Transaction Documents with any officer or employee of the Borrowers or ACFS having knowledge of such matters, provided that the Person seeking such information has given the Borrowers or ACFS prior written notice of its intent to inspect or visit and provided, further that no such Person shall so inspect or visit the Borrowers or ACFS more frequently than once per quarter unless a Default or Event of Default has occurred and is continuing or ACFS otherwise consents to such additional inspection or visit. If a Default or Event of Default has occurred and is continuing, such inspection or visit shall be at the expense of the Borrowers. Each of ACFS and the Borrowers agree to render to the Administrative Agent and the Lender Collateral Agent such clerical and other assistance as may be reasonably requested with regard to the foregoing. Each of the Borrowers agrees not to


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change its name, identity or corporate structure to such an extent that any financing statement filed by the Lender Collateral Agent in connection with this Agreement would become seriously misleading or change the jurisdiction in which it is organized, unless it shall have given the Lender Collateral Agent and the Administrative Agent at least 30 days' prior written notice of such change.


(b) Performance of Borrower Agreements. Each Borrower will (i) perform and observe all the terms and provisions of the Borrower Agreements to be performed or observed by it, maintain the Borrower Agreements to which it is a party in full force and effect, enforce such Borrower Agreements in accordance with their terms and take all such action to such end as may be from time to time requested by the Administrative Agent and (ii) upon request of the Administrative Agent, make to any other party to such Borrower Agreements such demands and requests for information and reports or for action as such Borrower is entitled to make under the Borrower Agreements.


(c) Notice of Material Adverse Claim. Each of ACFS and the Borrowers shall advise the Administrative Agent and the Lender Collateral Agent promptly, in writing and in reasonable detail, (i) of any Lien, other than a Permitted Lien, known to it made or asserted against any of the Revolver Collateral, and (ii) of the occurrence of any event which would have a Material Adverse Effect on the value of the Revolver Collateral or on the assignments and security interests granted by the Borrowers in this Agreement or on the priority or perfection of such security interests or on the ability of the Lender Collateral Agent to enforce its security interest in the Revolver Collateral or foreclose on the Revolver Collateral.


(d) Further Assurances; Financing Statements.


(1) Each of ACFS and the Borrowers agrees that at any time
and from time to time, at its expense, it shall promptly execute
and deliver all further instruments and documents, and take all
reasonable further action, that may be necessary or desirable or
required by applicable law or that the Lender Collateral Agent or
the Administrative Agent may request to perfect and protect the
assignments and security interests granted or purported to be
granted by this Agreement or to enable the Lender Collateral Agent
or any of the Secured Parties to exercise and enforce its rights
and remedies under this Agreement with respect to any Revolver
Collateral. Without limiting the generality of the foregoing, the
Borrowers will file such financing or continuation statements, or
amendments thereto, and execute and file such other instruments or
notices as may be necessary or desirable or required by applicable
law or that the Lender Collateral Agent or the Administrative
Agent may reasonably request to protect and preserve the
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