Sinking Fund Account Agreement (54K)
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SINKING FUND ACCOUNT AGREEMENT
This SINKING FUND ACCOUNT AGREEMENT, dated as of February 11, 2003 (as
amended, modified and supplemented from time to time, the "Agreement") among FCC
ACCEPTANCE CORP., a Delaware corporation (the "Borrower"), FIRST CONSUMER
CREDIT, INC., a Texas corporation, ("FCC"), as Servicer, DZ Bank AG Deutsche
Zentral-Genossenschaftsbank, Frankfurt Am Main, as agent (in such capacity, the
"Agent") for the Lender under and defined in the RLSA (as defined below) (the
"Lender"; the Agent and the Lender, and their respective successors and assigns,
collectively, the "Secured Parties") and U.S. BANK NATIONAL ASSOCIATION (the
"Bank").
RECITALS
WHEREAS, the Borrower, FCC, the Bank, Compu-Link Corporation, the Lender
and the Agent are parties to that certain Receivables Loan and Security
Agreement of even date herewith (as amended, modified or supplemented from time
to time, the "RLSA") pursuant to which the Lender shall from time to time,
subject to the conditions set forth therein, make loans to the Borrower secured
by certain Pledged Receivables (as defined therein) and related collateral
(collectively, the "Pledged Assets"); and
WHEREAS, the execution and delivery of this Agreement is a condition
precedent to the Lender's obligation to make such loans secured by the Pledged
Assets.
NOW, THEREFORE, in consideration of the foregoing premises, and for other
good and valuable consideration, the adequacy, receipt and sufficiency of which
are hereby acknowledged, the parties hereto agree as follows:
ARTICLE 1
DEFINITIONS
Section 1.1. Definitions.
(a) Certain capitalized terms used throughout this Agreement are
defined above or in this Section 1.1. Unless otherwise defined herein,
capitalized terms shall have the meaning assigned to such terms in the RLSA.
(b) As used in this Agreement, the following terms shall have the
following meanings (such meanings to be equally applicable to both the singular
and plural forms of the terms defined).
"Additional Deposit" is defined in Section 2.1(d) hereof.
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"Applicable Treasury Security" means, as of any date of determination, the
United States Treasury Security having a term which is nearest to (but not
shorter than) the Weighted Average Term as of such date.
"Asset Reports" means the most recent reports provided by the Servicer to
the Agent pursuant to Section 6.12 of the RLSA ; provided, however, that if any
information required to be provided by the Servicer pursuant to such Section
shall not be provided as required pursuant to such Section or if, in the
judgment of the Agent (after consultation with the Servicer), any such
information actually provided pursuant to such Section is inaccurate or
incomplete, then, at the option of the Agent, "Asset Reports" shall include any
other information that the Agent believes, in good faith, to be accurate.
"Calculated Cap Amortizing Balance" means, as of any Calculation Date, the
projected scheduled amortizing balance of the Pledged Receivables as of such
Calculation Date, determined by the Servicer (based upon the Asset Reports)
based upon the (i) Outstanding Principal Balance of such Pledged Receivables as
of such Calculation Date (and assuming an outstanding term for such Pledged
Receivables equal to their Weighted Average Term as of such Calculation Date)
and (ii) Weighted Average APR of such Pledged Receivables as of the last day of
the immediately-preceding Remittance Period.
"Calculated Strike Price" means, as of any date of determination, the rate
per annum, as determined by the Agent (based on the Asset Reports), which shall
be equal to (A) the Weighted Average APR of the Pledged Receivables as of the
last day of the immediately-preceding Remittance Period minus (B) the sum of (i)
the Servicing Fee Rate or, if the Backup Servicer shall have been appointed as
Servicer pursuant to Section 6.15 of the RLSA, the Active Backup Servicing Fee
Rate, (ii) the Custodian's Fee Rate for the immediately-preceding Remittance
Period, (iii) prior to the date, if any, on which the Backup Servicer shall have
been appointed as Servicer pursuant to Section 6.15 of the RLSA, the Standby
Back-up Servicer's Fee Rate for the immediately-preceding Remittance Period,
(iv) the Weighted Average Facility Fee Rate as of the last day of the
immediately-preceding Remittance Period and (v) 5.00% per annum.
"Calculated Swap Amortizing Balance" means, as of any Calculation Date, the
projected scheduled amortizing balance of the Pledged Receivables as of such
Calculation Date, determined by the Servicer (based upon the Asset Reports)
based upon the (i) Outstanding Principal Balance of such Pledged Receivables as
of such Calculation Date (and assuming an outstanding term for such Pledged
Receivables equal to their Weighted Average Term as of such Calculation Date)
and (ii) Weighted Average APR of such Pledged Receivables as of the last day of
the immediately-preceding Remittance Period, adjusted for prepayments using an
absolute prepayment speed which, in the judgment of the Agent, is consistent
with the speed with which the Pledged Receivables have prepaid in the past.
"Calculation Date" means (i) each Remittance Date, (ii) each Borrowing Date
and (iii) if neither a Remittance Date nor a Borrowing Date occurs in any
calendar week, the last Business Day of such calendar week.
"Cap Premium" means, as of any Calculation Date, the lower of the prices
quoted by the Pricing Agents for the purchase of a Specified Rate Cap on such
Calculation Date.
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"Cap Provider" means DZ Bank AG Deutsche Zentral-Genossenschaftsbank,
Frankfurt Am Main or any other financial institution that is in the business of
selling interest rate caps, is acceptable to the Agent and has, at the time such
interest rate cap is purchased, a short-term debt rating of at least "A-1" from
S&P, "P-1" from Moody's and "F-1" from Fitch and a long-term debt rating of at
least "A" from S&P, "A2" from Moody's and "A" from Fitch.
"Custodian's Fee Rate" means, with respect to any Remittance Period, a rate
per annum equal to (i) the product of (a) the Custodian's Fee for such
Remittance Period and (b) 12, divided by (ii) the daily average aggregate face
amount of outstanding commercial paper issued by the Lender and other amounts
advanced by the Lender, in each case, to fund Loans under the RLSA during such
Remittance Period.
"Delivery Date" means the date upon which the initial Borrowing under the
RLSA shall occur.
"Deposit Date" means any Business Day upon which, in the determination of
the Agent, (i) the Eurodollar Rate, as of such Business Day, shall be greater
than or equal to the Transaction Rate, as of such Business Day, or (ii) (x) the
sum of (A) the effective yield of the Applicable Treasury Security, as of such
Business Day, and (B) the Swap Spread, as of such Business Day, shall be greater
than or equal to (y) the difference between (A) the Calculated Strike Price, as
of such Business Day, and (B) 0.25% per annum.
"Eurodollar Rate" means, with respect to any Business Day, the interest
rate per annum reported on such Business Day on Telerate Access Service Page
3750 (British Bankers Association Settlement Rate) as the London Interbank
Offered Rate for United States dollar deposits having a term of thirty (30) days
and in a principal amount of $1,000,000 or more (or, if such page shall cease to
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