EXHIBIT 10.3
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XL CAPITAL ASSURANCE INC.,
as Insurer
AMERICREDIT AUTOMOBILE RECEIVABLES TRUST 2007-A-X,
as Issuer
AMERICREDIT FINANCIAL SERVICES, INC.
Individually, as Custodian and as Servicer
AFS SENSUB CORP.,
as Seller
WELLS FARGO BANK, NATIONAL ASSOCIATION
as Trustee, as Trust Collateral Agent, as Collateral
Agent and as Backup Servicer,
INSURANCE AGREEMENT
$1,200,000,000
AmeriCredit Automobile Receivables Trust 2007-A-X
Automobile Receivables Backed Notes
$217,000,000 Class A-1 Notes
$348,000,000 Class A-2 Notes
$248,000,000 Class A-3 Notes
$387,000,000 Class A-4 Notes
Dated as of January 9, 2007
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TABLE OF CONTENTS
ARTICLE I
DEFINITIONS
ARTICLE II
REPRESENTATIONS, WARRANTIES AND COVENANTS
Section 2.01. Representation and Warranties of AmeriCredit, the Servicer,
the Seller and the Custodian................................ 6
Section 2.02. Affirmative Covenants of the Servicer, AmeriCredit, the
Seller and the Custodian.................................... 10
Section 2.03. Negative Covenants of AmeriCredit, the Servicer, the Seller
and the Custodian........................................... 17
Section 2.04. Representations and Warranties of the Issuer................ 20
Section 2.05. Affirmative Covenants of the Issuer......................... 23
Section 2.06. Negative Covenants of the Issuer............................ 25
Section 2.07. Representations, Warranties and Covenants of the Trustee,
the Trust Collateral Agent, the Collateral Agent and the
Backup Servicer............................................. 26
ARTICLE III
THE POLICIES; REIMBURSEMENT
Section 3.01. Issuance of the Policies.................................... 29
Section 3.02. Payment of Fees and Premium................................. 32
Section 3.03. Reimbursement and Additional Payment Obligation............. 32
Section 3.04. Indemnification; Limitation of Liability.................... 34
Section 3.05. Payment Procedure........................................... 37
ARTICLE IV
FURTHER AGREEMENTS
Section 4.01. Effective Date; Term of the Insurance Agreement............. 37
Section 4.02. Further Assurances and Corrective Instruments............... 37
Section 4.03. Obligations Absolute........................................ 38
Section 4.04. Assignments; Reinsurance; Third-party Rights................ 40
Section 4.05. Liability of the Insurer.................................... 41
Section 4.06. Parties Will Not Institute Insolvency Proceedings........... 41
Section 4.07. Trustee, Custodian, Trust Collateral Agent, Collateral
Agent, Backup Servicer, Seller, Issuer and Servicer To Join
in Enforcement Action....................................... 41
Section 4.08. Replacement Swap Agreement.................................. 41
Section 4.09. Subrogation................................................. 41
Section 4.10. Insurer's Rights Regarding Actions, Proceedings or
Investigations.............................................. 42
ARTICLE V
DEFAULTS; REMEDIES
Section 5.01. Defaults.................................................... 43
Section 5.02. Remedies; No Remedy Exclusive............................... 45
Section 5.03. Waivers..................................................... 46
ARTICLE VI
MISCELLANEOUS
Section 6.01. Amendments, Etc............................................. 46
Section 6.02. Notices..................................................... 47
Section 6.03. Severability................................................ 48
Section 6.04. Governing Law............................................... 48
Section 6.05. Consent to Jurisdiction..................................... 48
Section 6.06. Consent of the Insurer...................................... 49
Section 6.08. Headings.................................................... 49
Section 6.09. Trial by Jury Waived........................................ 49
Section 6.10. Limited Liability........................................... 49
Section 6.11. Entire Agreement............................................ 50
Section 6.12. No Partnership.............................................. 50
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INSURANCE AGREEMENT
INSURANCE AGREEMENT (this "Insurance Agreement"), dated as of January 9,
2007 by and among AMERICREDIT AUTOMOBILE RECEIVABLES TRUST 2007-A-X, as Issuer
(the "Issuer"), AFS SENSUB CORP., as Seller (the "Seller"), AMERICREDIT
FINANCIAL SERVICES, INC., individually ("AmeriCredit") and in its capacity as
Servicer under the Sale and Servicing Agreement described below (together with
its permitted successors and assigns, the "Servicer") and as Custodian (the
"Custodian"), XL CAPITAL ASSURANCE INC. (the "Insurer"), WELLS FARGO BANK,
NATIONAL ASSOCIATION, as Trustee (the "Trustee"), as Trust Collateral Agent (the
"Trust Collateral Agent" ), as Collateral Agent (the "Collateral Agent") and as
Backup Servicer (the "Backup Servicer").
WHEREAS, the Indenture dated as of January 9, 2007 relating to AmeriCredit
Automobile Receivables Trust 2007-A-X Automobile Receivables Asset Backed Notes,
$217,000,000 Class A-1 Notes, $348,000,000 Class A-2 Notes, $248,000,000 Class
A-3 Notes and $387,000,000 Class A-4 Notes (the "Obligations"), between the
Issuer, the Trustee and the Trust Collateral Agent (the "Indenture") provides
for, among other things, the issuance of asset backed notes representing debt
obligations secured by the collateral pledged thereunder and the Insurer has
agreed to issue a financial guarantee insurance policy (the "Note Policy") that
guarantees certain payments on the Obligations (as defined in the Note Policy)
and a financial guarantee insurance policy with respect to certain payments
under the Swap Agreement (the "Swap Policy" and together with the Note Policy,
the "Policies") under which the Note Insurer has agreed to insure certain
amounts which may be due from the Issuer to the Swap Provider under the Swap
Agreement; and
WHEREAS, the Insurer shall be paid an insurance premium pursuant to the
Sale and Servicing Agreement and the details of such premium are set forth
herein; and
WHEREAS, AmeriCredit, the Servicer, the Custodian, the Seller and the
Issuer have undertaken certain obligations in consideration of the Insurer's
issuance of the Policies;
NOW, THEREFORE, in consideration of the premises and the mutual agreements
herein contained, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
The terms defined in this Article I shall have the meanings provided herein
for all purposes of this Insurance Agreement, unless the context clearly
requires otherwise, in both singular and plural form, as appropriate. Unless the
context clearly requires otherwise, all capitalized terms used herein and not
otherwise defined in this Article I shall have the meanings assigned to them in
the Sale and Servicing Agreement or the Indenture, as applicable. All words used
herein shall be construed to be of such gender or number as the circumstances
require. This "Insurance Agreement" shall mean this Insurance Agreement as a
whole and as the same may, from time to time hereafter, be amended, supplemented
or modified. The words "herein,"
"hereby," "hereof," "hereto," "hereinabove" and "hereinbelow," and words of
similar import, refer to this Insurance Agreement as a whole and not to any
particular paragraph, clause or other subdivision hereof, unless otherwise
specifically noted.
"Business Day" means any day other than (a) a Saturday or a Sunday (b) a
day on which the Insurer is closed or (c) a day on which banking institutions in
New York, New York, Fort Worth, Texas, Minneapolis, Minnesota or in the city in
which the corporate trust office of the Trustee under the Indenture is located
are authorized or obligated by law or executive order to close.
"Code" means the Internal Revenue Code of 1986, including, unless the
context otherwise requires, the rules and regulations thereunder, as amended
from time to time.
"Collateral Agent" means Wells Fargo Bank, National Association, a national
banking association, as collateral agent under the Spread Account Agreement, and
any successor to the collateral agent under the Spread Account Agreement.
"Commission" means the Securities and Exchange Commission.
"Corporate Liquidity Pool" means the sum of (i) cash and cash equivalents
held by AmeriCredit Corp. plus (ii) 75% of the aggregate outstanding balance of
all receivables owned by AmeriCredit Corp. or AmeriCredit that are not subject
to any lien or security interest; provided, that "Corporate Liquidity Pool"
shall not include any restricted cash balances.
"Date of Issuance" means the date on which the Policies are issued as
specified therein.
"Default" means any event which results, or which with the giving of notice
or the lapse of time or both would result, in an Insurance Agreement Event of
Default.
"Financial Statements" means, with respect to AmeriCredit Corp., the
consolidated balance sheets and the statements of income, retained earnings and
cash flows and the notes thereto which have been provided to the Insurer.
"Indemnification Agreement" means the Indemnification Agreement dated
January 10, 2007 among the Insurer, AmeriCredit and Wachovia Capital Markets,
LLC, as Representative of the Underwriters.
"Indenture" means the Indenture dated as of January 9, 2007 between the
Issuer, the Trust Collateral Agent and the Trustee as the same may be amended or
supplemented from time to time in accordance with the terms thereof.
"Insolvency Law" means any existing or future law of any jurisdiction,
domestic or foreign, relating to bankruptcy, insolvency, reorganization or
relief of debtors.
"Insurance Agreement Event of Default" means any event of default specified
in Section 5.01 hereof.
"Insurer Default" has the meaning set forth in the Sale and Servicing
Agreement.
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"Investment Company Act" means the Investment Company Act of 1940,
including, unless the context otherwise requires, the rules and regulations
thereunder, as amended.
"Issuer Secured Parties" has the meaning set forth in the Indenture.
"Late Payment Rate" means the lesser of (a) the greater of (i) the Prime
Rate plus 2% from time to time (any change in such rate of interest to be
effective on the date such change is published) and (ii) the then applicable
highest rate of interest on the Notes and (b) the maximum rate permissible under
applicable usury or similar laws limiting interest rates. The Late Payment Rate
shall be computed on the basis of a 360 day year for the actual number of days
elapsed for such period. The Late Payment Rate shall be calculated by the
Insurer and evidenced by a certificate of the Insurer delivered to the Trustee.
"Liabilities" shall have the meaning ascribed to such term in Section
3.04(a) hereof.
"Lien" means, as applied to the property or assets (or the income 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, hypothecation, assignment, deposit
arrangement, preference priority or other security agreement of preferential
arrangement, 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 are
transferred, sequestered or otherwise identified for the purpose of subjecting
or making available the same for the payment of debt or performance of any other
obligation in priority to the payment of the general, unsecured creditors of
such Person.
"Losses" means (a) any actual out-of-pocket loss paid by the Insurer or its
respective parents, subsidiaries and affiliates or any shareholder, director,
officer, employee, agent or any "controlling person" (as such term is used in
the Securities Act) of any of the foregoing and (b) any actual out-of-pocket
costs and expenses paid by such party, including reasonable fees and expenses of
its counsel, to the extent not paid, satisfied or reimbursed from funds provided
by any other Person (provided that the foregoing shall not create or imply any
obligation to pursue recourse against any such other Person).
"Material Adverse Change" means, in respect of any Person, a material
adverse change in (a) the business, financial condition, results of operations
or properties of such Person or (b) the ability of such Person to perform its
obligations under any of the Transaction Documents.
"Moody's" means Moody's Investors Service, a Delaware corporation, and any
successor thereto, and, if such corporation shall for any reason no longer
perform the functions of a securities rating agency, "Moody's" shall be deemed
to refer to any other nationally recognized rating agency designated by the
Insurer.
"Obligor" means the original obligor under each Receivable, including any
guarantor of such obligor and their respective successors.
"Offering Document" means the Prospectus dated April 28, 2006 and the
Prospectus Supplement thereto dated January 10, 2007 of the Issuer in respect of
the Obligations (and any amendment or supplement thereto) and any other offering
document in respect of the Obligations
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prepared by AmeriCredit, the Servicer, the Seller or the Issuer that makes
reference to the Policies.
"Opinion Facts and Assumptions" means the facts and assumptions contained
in the insolvency opinion dated January 18, 2007 by Dewey Ballantine LLP and the
officer's certificates attached as exhibits thereto insofar as they relate to
the Seller, the Issuer and AmeriCredit.
"Owner Trustee" means Wilmington Trust Company, a Delaware banking
corporation, as Owner Trustee under the Trust Agreement, and any successor Owner
Trustee under the Trust Agreement.
"Person" means an individual, joint stock company, trust, unincorporated
association, joint venture, corporation, business or owner trust, limited
liability company, partnership or other organization or entity (whether
governmental or private).
"Premium" means the premium payable in accordance with Section 3.02 hereof.
"Premium Letter" means the Premium Letter Agreement among the Insurer,
AmeriCredit, the Issuer, the Trustee and the Trust Collateral Agent dated
January 9, 2007.
"Prime Rate" means the fluctuating rate of interest as published from time
to time in the New York, New York edition of The Wall Street Journal, under the
caption "Money Rates" as the "prime rate". The Prime Rate shall change when and
as such published prime rate changes.
"Purchase Agreement" means the Purchase Agreement dated as of January 9,
2007, between the Seller and AmeriCredit, as the same may be amended or
supplemented from time to time in accordance with the terms thereof.
"Replacement Swap Agreement" means any replacement Swap Agreement entered
into at the direction of the Insurer pursuant to Section 4.08 of this Agreement.
"Sale and Servicing Agreement" means the Sale and Servicing Agreement dated
as of January 9, 2007 between the Issuer, the Seller, the Servicer, the Backup
Servicer and the Trust Collateral Agent as the same may be amended or
supplemented from time to time in accordance with the terms thereof.
"Securities Act" means the Securities Act of 1933, including, unless the
context otherwise requires, the rules and regulations thereunder, as amended
from time to time.
"Securities Exchange Act" means the Securities Exchange Act of 1934,
including, unless the context otherwise requires, the rules and regulations
thereunder, as amended from time to time.
"Security Documents" means the Indenture, the Trust Agreement, the Sale and
Servicing Agreement, the Purchase Agreement and any ancillary documents executed
or filed to evidence or perfect the security interest of the Trust Collateral
Agent for the benefit of the Issuer Secured Parties.
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"S&P" means Standard & Poor's, a division of The McGraw-Hill Companies,
Inc., and any successor thereto, and, if such corporation shall for any reason
no longer perform the functions of a securities rating agency, "S&P" shall be
deemed to refer to any other nationally recognized rating agency designated by
the Insurer.
"Tangible Net Worth" means, with respect to any Person, the net worth of
such Person calculated in accordance with GAAP, after subtracting therefrom the
aggregate amount of such Person's intangible assets, including, without
limitation, goodwill, franchises, licenses, patents, trademarks, copyrights and
service marks.
"Term of the Insurance Agreement" shall be determined as provided in
Section 4.01 hereof.
"Transaction" means the transactions contemplated by the Transaction
Documents, including the transactions described in the Transaction Documents.
"Transaction Documents" means this Insurance Agreement, the Indemnification
Agreement, the Indenture, the Trust Agreement, the Sale and Servicing Agreement,
the Purchase Agreement, the Underwriting Agreement, the Custodian Agreement, the
Lockbox Agreement, the Swap Agreement, the Premium Letter, the Spread Account
Agreement and the Obligations (as defined in the Note Policy).
"Trust Agreement" means the Amended and Restated Trust Agreement dated as
of January 9, 2007 between the Seller and the Owner Trustee, as the same may be
amended or supplemented from time to time in accordance with the terms thereof.
"Trust Collateral Agent" means Wells Fargo Bank, National Association, a
national banking association, as trust collateral agent under the Indenture, and
any successor to the Trust Collateral Agent under the Indenture.
"Trustee" means Wells Fargo Bank, National Association, a national banking
association, as Trustee under the Indenture, and any successor Trustee under the
Indenture.
"Trust Indenture Act" means the Trust Indenture Act of 1939, including,
unless the context otherwise requires, the rules and regulations thereunder, as
amended from time to time.
"Underwriters" means Barclays Capital Inc., Wachovia Capital Markets, LLC,
JP Morgan Securities Inc., Lehman Brothers, Inc. and UBS Securities LLC.
"Underwriting Agreement" means the Underwriting Agreement between Wachovia
Capital Markets, LLC, as Representative of the several Underwriters, AmeriCredit
and the Seller with respect to the offer and sale of the Obligations, as the
same may be amended from time to time.
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ARTICLE II
REPRESENTATIONS, WARRANTIES AND COVENANTS
Section 2.01. REPRESENTATION AND WARRANTIES OF AMERICREDIT, THE SERVICER,
THE SELLER AND THE CUSTODIAN. AmeriCredit, the Servicer, the Seller and the
Custodian represent, warrant and covenant as of the Date of Issuance, each as to
those matters relating to itself, as follows:
(a) DUE ORGANIZATION AND QUALIFICATION. AmeriCredit, the Servicer, the
Seller and the Custodian is a corporation, duly organized, validly existing
and in good standing under the laws of its jurisdiction of organization.
Each of AmeriCredit, the Servicer, the Seller and the Custodian is duly
qualified to do business, is in good standing and has obtained all
licenses, permits, charters, registrations and approvals (together,
"approvals") necessary for the conduct of its business as currently
conducted and as described in the Offering Document and the performance of
its obligations under the Transaction Documents in each jurisdiction in
which the failure to be so qualified or to obtain such approvals would
render any Transaction Document unenforceable in any respect or would have
a material adverse effect upon the Transaction, the Owners or the Insurer.
(b) POWER AND AUTHORITY. Each of the Servicer, the Seller and the
Custodian has all necessary power and authority to conduct its business as
currently conducted and, as described in the Offering Document, to execute,
deliver and perform its obligations under the Transaction Documents and to
consummate the Transaction.
(c) DUE AUTHORIZATION. The execution, delivery and performance of the
Transaction Documents by AmeriCredit, the Servicer, the Seller and the
Custodian have been duly authorized by all necessary action and do not
require any additional approvals or consents of, or other action by or any
notice to or filing with, any Person, including, without limitation, any
governmental entity or the Servicer's, AmeriCredit's, the Seller's or the
Custodian's stockholders, which have not previously been obtained or given
by the Servicer, AmeriCredit, the Seller or the Custodian.
(d) NONCONTRAVENTION. None of the execution and delivery of the
Transaction Documents by AmeriCredit, the Servicer, the Seller or the
Custodian, the consummation of the transactions contemplated thereby or by
the Offering Document or the satisfaction of the terms and conditions of
the Transaction Documents:
(i) conflicts with or results in any breach or violation of any
provision of the organizational documents of the Servicer,
AmeriCredit, the Seller or the Custodian or any law, rule, regulation,
order, writ, judgment, injunction, decree, determination or award
currently in effect having applicability to the Servicer, AmeriCredit,
the Seller or the Custodian or any of their material properties,
including regulations issued by an administrative agency or other
governmental authority having supervisory powers over the Servicer,
AmeriCredit, the Seller or the Custodian;
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(ii) constitutes a default (or an event which, with the giving of
notice or the passage of time, or both, would constitute a default) by
the Servicer, AmeriCredit, the Seller or the Custodian under or a
breach of any provision of any loan agreement, mortgage, indenture or
other agreement or instrument to which the Servicer, AmeriCredit, the
Seller or the Custodian is a party or by which any of its or their
respective properties, which are individually or in the aggregate
material to the Servicer, AmeriCredit, the Seller or the Custodian, is
or may be bound or affected; or
(iii) results in or requires the creation of any lien upon or in
respect of any assets of the Servicer, AmeriCredit, the Seller or the
Custodian, except as contemplated by the Transaction Documents.
(e) LEGAL PROCEEDINGS. There is no action, proceeding or investigation
by or before any court, governmental or administrative agency or arbitrator
against or affecting the Servicer, AmeriCredit, the Seller, the Custodian
or any of its or their subsidiaries, or any properties or rights of the
Servicer, AmeriCredit, the Seller, the Custodian or any of its or their
subsidiaries, pending or, to the Servicer's, AmeriCredit's, the Seller's or
the Custodian's knowledge after reasonable inquiry, threatened, which in
any case could reasonably be expected to result in a Material Adverse
Change with respect to AmeriCredit, the Servicer, the Seller or Custodian.
(f) NO DEFAULTS. Each of the Servicer, AmeriCredit, the Seller and the
Custodian is not in default under or with respect to any of its respective
contractual obligations in any respect which could have a material adverse
effect on the rights, interests or remedies of the Insurer hereunder or
under the other Transaction Documents or on its ability to perform its
obligations hereunder or under the other Transaction Documents to which it
is a party. No Default has occurred and is continuing.
(g) VALID AND BINDING OBLIGATIONS. The Obligations, when executed,
authenticated and issued in accordance with the Indenture, and the
Transaction Documents (other than the Obligations), when executed and
delivered by the Servicer, the Seller AmeriCredit, and the Custodian, will
constitute the legal, valid and binding obligations of the Servicer,
AmeriCredit, the Seller, the Custodian and the Trust, as applicable,
enforceable in accordance with their respective terms, except as such
enforceability may be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting creditors' rights generally and
general equitable principles and public policy considerations as to rights
of indemnification for violations of federal securities laws. None of the
Servicer, AmeriCredit, the Seller or the Custodian will at any time in the
future deny that the Transaction Documents constitute the legal, valid and
binding obligations of the Servicer, AmeriCredit, the Seller, the Custodian
or the Trust, as applicable.
(h) NO CONSENTS. No consent, license, approval or authorization from,
or registration, filing or declaration with, any regulatory body,
administrative agency, or other governmental instrumentality, nor any
consent, approval, waiver or notification of any creditor, lessor or other
nongovernmental person, is required in connection with the
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execution, delivery and performance by each of the Servicer, AmeriCredit,
the Seller and the Custodian of any of the Transaction Documents to which
it is a party, except (in each case) such as have been obtained and are in
full force and effect or the failure of which to be obtained could not
reasonably be expected to result in a Material Adverse Change with respect
to the Servicer, AmeriCredit, the Seller, the Custodian, or the
Transaction.
(i) FINANCIAL STATEMENTS. The Financial Statements of AmeriCredit
Corp., copies of which have been furnished to the Insurer by AmeriCredit,
(i) are, as of the dates and for the periods referred to therein, complete
and correct in all material respects, (ii) present fairly the financial
condition and results of operations of AmeriCredit Corp., as of the dates
and for the periods indicated and (iii) have been prepared in accordance
with generally accepted accounting principles consistently applied, except
as noted therein (subject as to interim statements to normal year-end
adjustments). Since the date of the most recent Financial Statements, there
has been no Material Adverse Change in respect of AmeriCredit Corp., the
Custodian, AmeriCredit, the Seller or the Servicer. Except as disclosed in
the Financial Statements, AmeriCredit Corp., the Custodian, AmeriCredit,
the Seller and the Servicer are not subject to any contingent liabilities
or commitments that, individually or in the aggregate, have a material
possibility of causing a Material Adverse Change in respect of AmeriCredit
Corp., the Custodian, AmeriCredit, the Seller and the Servicer.
(j) COMPLIANCE WITH LAW, ETC. No practice, procedure or policy
employed, or proposed to be employed, by the Servicer, AmeriCredit, the
Seller or the Custodian in the conduct of its business violates any law,
regulation, judgment, agreement, order or decree applicable to any of them
that, if enforced, could reasonably be expected to result in a Material
Adverse Change with respect to the Servicer, AmeriCredit, the Seller or the
Custodian. The Servicer, AmeriCredit, the Seller and the Custodian are not
in breach of or in default under any applicable law or administrative
regulation of its respective jurisdiction of organization, or any
department, division, agency or instrumentality thereof or of the United
States or any applicable judgment or decree or any loan agreement, note,
resolution, certificate, agreement or other instrument to which the
Servicer, AmeriCredit, the Seller or the Custodian is a party or is
otherwise subject which, if enforced, would have a material adverse effect
on the ability of the Servicer, AmeriCredit, the Seller or the Custodian,
as the case may be, to perform its respective obligations under the
Transaction Documents.
(k) TAXES. The Servicer, AmeriCredit, the Seller and the Custodian and
the Servicer's, AmeriCredit's, the Seller's and the Custodian's parent
company or companies have filed prior to the date hereof all federal and
state tax returns that are required to be filed and paid all taxes,
including any assessments received by them that are not being contested in
good faith, to the extent that such taxes have become due.
(l) ACCURACY OF INFORMATION. None of the Transaction Documents, the
Offering Document or any documents, agreements, instruments, schedules,
certificates, statements, cash flow schedules, number runs or other
writings or data relating to the Receivables, the operations of the
Servicer, AmeriCredit, the Seller or the Custodian (including servicing or
origination of loans) or the financial condition of the Servicer,
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AmeriCredit, the Seller or the Custodian (collectively, the "Documents"),
as amended, supplemented or superseded, furnished to the Insurer by the
Servicer, AmeriCredit, the Seller or the Custodian contains any statement
of a material fact by the Servicer, AmeriCredit, the Seller or the
Custodian which was untrue or misleading in any material adverse respect
when made. None of the Servicer, AmeriCredit, the Seller or the Custodian
has any knowledge of circumstances that could reasonably be expected to
cause a Material Adverse Change with respect to the Servicer, AmeriCredit,
the Seller or the Custodian. Since the furnishing of the Documents, there
has been no change or any development or event involving a prospective
change known to the Servicer, AmeriCredit, the Seller or the Custodian that
would render any of the Documents untrue or misleading in any material
respect.
(m) COMPLIANCE WITH SECURITIES LAWS. The offer and sale of the
Obligations comply in all material respects with all requirements of law,
including all registration requirements of applicable securities laws.
Without limitation of the foregoing, the Offering Document does not contain
any untrue statement of a material fact and does not omit to state a
material fact necessary to make the statements made therein, in light of
the circumstances under which they were made, not misleading; provided,
however, that no representation is made with respect to the information in
the Offering Document set forth under the headings "THE POLICY" and "THE
INSURER" or the consolidated financial statements of the Insurer
incorporated by reference in the Offering Document. Each of the Transaction
Documents conforms in all material respects to the representative
descriptions thereof, if any, contained in the Offering Document. Neither
the offer nor the sale of the Obligations has been or will be in violation
of the Securities Act or any other federal or state securities laws. None
of the Trust, the Trust Agreement or the Indenture is required to be
registered as an "investment company" under the Investment Company Act.
(n) TRANSACTION DOCUMENTS. Each of the representations and warranties
of the Servicer, AmeriCredit, the Seller and the Custodian contained in the
Transaction Documents is true and correct in all material respects, and the
Servicer, AmeriCredit, the Seller and the Custodian hereby make each such
representation and warranty to, and for the benefit of, the Insurer as if
the same were set forth in full herein.
(o) SOLVENCY; FRAUDULENT CONVEYANCE. The Servicer, AmeriCredit, the
Seller and the Custodian are solvent and will not be rendered insolvent by
the Transaction and, after giving effect to the Transaction, none of the
Servicer, AmeriCredit, the Seller or the Custodian will be left with an
unreasonably small amount of capital with which to engage in its business,
nor does the Servicer, AmeriCredit, the Seller or the Custodian intend to
incur, or believe that it has incurred, debts beyond its ability to pay as
they mature. None of the Servicer, AmeriCredit, the Seller or the Custodian
contemplates the commencement of insolvency, bankruptcy, liquidation or
consolidation proceedings or the appointment of a receiver, liquidator,
conservator, trustee or similar official in respect of the Servicer,
AmeriCredit, the Seller or the Custodian or any of their assets. The amount
of consideration being received by the Issuer upon the sale of the
Obligations to the Underwriter constitutes reasonably equivalent value and
fair consideration for the interest in the Receivables securing the
Obligations. AmeriCredit is not transferring the
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Receivables to the Seller, the Seller is not transferring the Receivables
to the Issuer, the Issuer is not pledging the Receivables to the Trustee
and the Issuer is not selling the Obligations to the Underwriter, as
provided in the Transaction Documents, with any intent to hinder, delay or
defraud any of the Seller's, AmeriCredit's or the Custodian's creditors.
(p) PRINCIPAL PLACE OF BUSINESS.
(i) The principal place of business of AmeriCredit, the Servicer
and the Custodian is located in Fort Worth, Texas and AmeriCredit, the
Servicer and the Custodian are each a corporation organized under the
laws of the State of Delaware. "AmeriCredit Financial Services, Inc."
is the correct legal name of AmeriCredit, the Servicer and the
Custodian indicated on the public records of AmeriCredit's, the
Servicer's and the Custodian's jurisdiction of organization which
shows AmeriCredit, the Servicer and the Custodian to be organized.
(ii) The principal place of business of the Seller is located in
Las Vegas, Nevada and the Seller is a corporation organized under the
laws of the State of Nevada. "AFS SenSub Corp." is the correct legal
name of the Seller indicated on the public records of the Seller's
jurisdiction of organization which shows the Seller to be organized.
(q) OPINION FACTS AND ASSUMPTIONS. The Opinion Facts and Assumptions
insofar as they relate to the Seller and AmeriCredit are true and correct
as of the Date of Issuance.
Section 2.02. AFFIRMATIVE COVENANTS OF THE SERVICER, AMERICREDIT, THE
SELLER AND THE CUSTODIAN. The Servicer, AmeriCredit, the Seller and the
Custodian hereby agree that during the Term of the Insurance Agreement, unless
the Insurer shall otherwise expressly consent in writing:
(a) COMPLIANCE WITH AGREEMENTS AND APPLICABLE LAWS. The Servicer,
AmeriCredit, the Seller and the Custodian shall not be in default under the
Transaction Documents and shall comply with all material requirements of
any law, rule, regulation, order, writ, judgment, injunction, decree,
determination or award (including, without limitation, any fiscal and
accounting rule or regulation and any foreign or domestic law, rule or
regulation) applicable to it. None of the Servicer, AmeriCredit, the Seller
or the Custodian shall agree to any amendment to or modification of the
terms of any Transaction Documents unless the Insurer shall have given its
prior written consent. In addition, each of the Servicer, AmeriCredit, the
Seller and the Custodian shall provide the Insurer with written notice
promptly upon becoming aware of any breach by it of any provision of any
Transaction Document; and to the extent any action is to be taken by the
Servicer, AmeriCredit, the Seller or the Custodian under any Transaction
Document to which it is a party at the direction of the Insurer, the
Servicer, AmeriCredit, the Seller or the Custodian shall promptly take such
action in accordance with such direction.
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(b) CORPORATE EXISTENCE. The Servicer, its successors and assigns,
AmeriCredit, its successors and assigns, the Seller, its successors and
assigns and the Custodian, its successors and assigns shall maintain their
corporate or statutory trust existence and shall at all times continue to
be duly organized under the laws of their respective jurisdictions of
organization and duly qualified and duly authorized (as described in
section 2.01(a), (b) and (c) hereof) and shall conduct its business in
accordance with the terms of its certificate or articles of incorporation,
bylaws and organizational documents.
(c) FINANCIAL STATEMENTS; ACCOUNTANTS' REPORTS; OTHER INFORMATION. The
Servicer, AmeriCredit, the Seller and the Custodian shall keep or cause to
be kept in reasonable detail books and records of account of their assets
and business, including, but not limited to, books and records relating to
the Transaction. The Servicer and the Seller shall furnish or cause to be
furnished to the Insurer:
(i) Annual Financial Statements. As soon as available, and in any
event within 120 days after the close of each fiscal year of
AmeriCredit Corp., the audited consolidated balance sheets of
AmeriCredit Corp., and its subsidiaries as of the end of such fiscal
year and the related audited consolidated statements of income,
changes in shareholders' equity and cash flows for such fiscal year,
all in reasonable detail and stating in comparative form the
respective figures for the corresponding date and period in the
preceding fiscal year, prepared in accordance with generally accepted
accounting principles, consistently applied, and accompanied by the
audit opinion of AmeriCredit Corp.'s independent accountants (which
shall be nationally recognized independent public accounting firms)
and by the certificate specified in Section 2.02(e) hereof.
(ii) Quarterly Financial Statements. As soon as available, and in
any event within 60 days after each of the first three fiscal quarters
of each fiscal year of AmeriCredit Corp., the unaudited consolidated
balance sheets of AmeriCredit Corp. and its subsidiaries as of the end
of such fiscal quarter and the related unaudited consolidated
statements of income, changes in shareholders' equity and cash flows
for such fiscal quarter, all in reasonable detail and stating in
comparative form the respective figures for the corresponding date and
period in the preceding fiscal year, prepared in accordance with
generally accepted accounting principles consistently applied and
accompanied by the certificate specified in Section 2.02(e) hereof.
(iii) Initial and Continuing Reports. On or before the Closing
Date, the Servicer will provide the Insurer a copy of the magnetic
tape to be delivered to the Trustee, the Trust Collateral Agent and
the Backup Servicer on the Closing Date, setting forth, as to each
Receivable, the information (as of the close of business on the prior
day) required under the definition of "Schedule of Receivables" at
Section 1.1 of the Sale and Servicing Agreement. Thereafter, the
Servicer shall deliver to the Insurer the reports required by Section
4.9 of the Sale and Servicing Agreement pursuant to the terms of
Section 4.9 of the Sale and Servicing Agreement.
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(iv) Computer Diskette. Upon request of the Insurer, the Servicer
will deliver to the Insurer on a quarterly basis a computer diskette
containing a summary of the information provided to the Insurer
pursuant to clause (iii) of this Section 2.02(c) and also containing
information similar to the information provided in the Schedule of
Receivables and the Supplements delivered to the Collateral Agent
pursuant to the Sale and Servicing Agreement and described in Schedule
A of the Sale and Servicing Agreement.
(v) Certain Information. Upon the reasonable request of the
Insurer, the Servicer and the Seller shall promptly provide copies of
any requested proxy statements, financial statements, reports and
registration statements which the Servicer or the Seller files with,
or delivers to, the Commission or any national securities exchange.
(vi) Other Information. Promptly upon receipt thereof, copies of
all schedules, financial statements or other similar reports delivered
to or by the Servicer, the Seller or the Custodian pursuant to the
terms of the Transaction Documents and, promptly upon request, such
other data as the Insurer may reasonably request.
All financial statements specified in clause (i) of this Section
2.02(c) shall be furnished in consolidated form for AmeriCredit Corp. and
all its subsidiaries in the event AmeriCredit Corp. shall consolidate its
financial statements with its subsidiaries.
The Insurer agrees that it and its agents, accountants and attorneys
shall keep confidential all financial statements, reports and other
information delivered by the Servicer pursuant to this Section 2.02(c) to
the extent provided in Section 2.02(f) hereof.
(d) MONTHLY COMPLIANCE CERTIFICATE. The Servicer shall deliver to the
Insurer, on the 25th day of each month and if such day is not a Business
Day then on the next Business Day a certificate signed by an officer of
AmeriCredit:
(i) stating the most recent Tangible Net Worth for AmeriCredit
Corp.,
(ii) listing each of the Insurance Agreement Events of Default
and indicating whether or not each Insurance Agreement Event of
Default has occurred, and
(iii) stating the three month rolling average recovery rate used
in calculating the Minimum Sales Price with respect to Sold
Receivables for the prior month and stating the Minimum Sales Price
with respect all Sold Receivables sold during the prior month; and
(iv) identifying (A) the aggregate principal balance of all
Receivables purchased by the Servicer or by the Seller on the related
Accounting Date, (B) the aggregate principal balance of all
Receivables which became Liquidated Receivables during the related
Collection Period or (C) the aggregate principal
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balance of all Receivables which were paid in full during the related
Collection Period.
(e) COMPLIANCE CERTIFICATE. AmeriCredit, the Servicer and the Seller
shall deliver to the Insurer, concurrently with the delivery of the
financial statements required pursuant to Section 2.02(c)(i) and (ii)
hereof, one or more certificates signed by an officer of AmeriCredit, an
officer of the Servicer and an officer of the applicable Seller authorized
to execute such certificates on behalf of AmeriCredit, the Servicer and the
Seller stating that:
(i) a review of the Servicer's performance under the Transaction
Documents during such period has been made under such officer's
supervision;
(ii) to the best of such individual's knowledge following
reasonable inquiry, no Default or Insurance Agreement Event of Default
has occurred or, if a Default or Insurance Agreement Event of Default
has occurred, specifying the nature thereof and, if the Servicer has a
right to cure pursuant to Section 9.1 of the Sale and Servicing
Agreement, stating in reasonable detail (including, if applicable, any
supporting calculations) the steps, if any, being taken by the
Servicer to cure such Default or Insurance Agreement Event of Default
or to otherwise comply with the terms of the agreement to which such
Default or Insurance Agreement Event of Default relates; and
(iii) the attached financial statements submitted in accordance
with Section 2.02(c)(i) or (ii) hereof, as the case may be, are
complete and correct in all material respects and present fairly the
financial condition and results of operations of AmeriCredit, the
Seller and the Servicer as of the dates and for the periods indicated,
in accordance with generally accepted accounting principles
consistently applied.
(f) ACCESS TO RECORDS; DISCUSSIONS WITH OFFICERS AND ACCOUNTANTS. On
an annual basis, or upon the occurrence of a Material Adverse Change, a
Default or an Insurance Agreement Event of Default AmeriCredit, the
Servicer and the Seller shall, upon the request of the Insurer, permit the
Insurer or its authorized agents and the Backup Servicer:
(i) to inspect the books and records of AmeriCredit, the Servicer
and the Seller as they may relate to the Obligations or the
Collateral, the obligations of AmeriCredit, the Servicer, or the
obligations of the Seller under the Transaction Documents, and the
Transaction;
(ii) to discuss the affairs, finances and accounts of
AmeriCredit, the Servicer or the Seller with the chief operating
officer and the chief financial officer of the Servicer, the Seller or
of the Custodian, as the case may be; and
(iii) to discuss the affairs, finances and accounts of
AmeriCredit, the Servicer or the Seller with AmeriCredit's, the
Servicer's or the Seller's
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independent accountants, provided that an officer of AmeriCredit, the
Servicer or the Seller shall have the right to be present during such
discussions.
Such inspections and discussions shall be conducted during normal
business hours and shall not unreasonably disrupt the business of
AmeriCredit, the Servicer or the Seller. The books and records of
AmeriCredit shall be maintained at the address of AmeriCredit designated
herein for receipt of notices, unless AmeriCredit shall otherwise advise
the parties hereto in writing. The books and records of the Seller shall be
maintained at the address of the Seller designated herein for receipt of
notices, unless the Seller shall otherwise advise the parties hereto in
writing. The books and records of the Servicer shall be maintained at the
address of the Servicer designated herein for receipt of notices, unless
the Servicer shall otherwise advise the parties hereto in writing. The
books and records of the Custodian shall be maintained at the address of
the Custodian designated herein for receipt of notices, unless the
Custodian shall otherwise advise the parties hereto in writing.
The Insurer agrees that it and its shareholders, directors, agents,
accountants and attorneys shall keep confidential any matter of which it
becomes aware through such inspections or discussions (unless readily
available from public sources), except as may be otherwise required by
regulation, law or court order or requested by appropriate governmental
authorities or as necessary to preserve its rights or security under or to
enforce the Transaction Documents, provided that the foregoing shall not
limit the right of the Insurer to make such information available to its
regulators, securities rating agencies, reinsurers, credit and liquidity
providers, counsel and accountants.
(g) NOTICE OF MATERIAL EVENTS. AmeriCredit, the Servicer, the Seller
and the Custodian shall be obligated (which obligation shall be satisfied
as to each if performed by AmeriCredit, the Servicer, the Seller or the
Custodian) promptly to inform the Insurer in writing of the occurrence of
any of the following to the extent any of the following relate to it:
(i) the submission of any claim or the initiation or threat of
any legal process, litigation or administrative or judicial
investigation or rule making or disciplinary proceeding in any
federal, state or local court or before any arbitration board, or any
such proceeding threatened by any governmental body or agency, that
has a reasonable likelihood of being adversely determined and (A) if
so determined, could have a material adverse effect on the Servicer,
the Seller, the Custodian, the Note Owners or the Insurer, (B) would
be required to be disclosed to the Commission or to the AmeriCredit's,
Servicer's, the Seller's or the Custodian's shareholders or (C) would
result in a Material Adverse Change with respect to AmeriCredit, the
Servicer, the Seller or the Custodian;
(ii) any change in the location of the Servicer's, the Seller's
or the Custodian's principal office or any change in the location of
Servicer's, the Seller's or the Custodian's books and records;
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(iii) the occurrence of any Default or Insurance Agreement Event
of Default or of any Material Adverse Change;
(iv) the commencement of any proceedings by or against
AmeriCredit, the Servicer, the Seller or the Custodian under any
applicable bankruptcy, reorganization, liquidation, rehabilitation,
insolvency or other similar law now or hereafter in effect or of any
proceeding in which a receiver, liquidator, conservator, trustee or
similar official shall have been, or may be, appointed or requested
for AmeriCredit, the Servicer, the Seller or the Custodian or any of
its or their assets; or
(v) the receipt of notice (A) of any claim or order by any taxing
authority that taxes are owed by AmeriCredit or any of its
subsidiaries, the Servicer, the Seller or the Custodian, as
applicable, or (B) that any withholding taxes are to be imposed on any
Collateral or the Obligations (as payment to be received thereunder,
as applicable).
(vi) the receipt of notice that (A) AmeriCredit, the Servicer,
the Seller or the Custodian is being placed under regulatory
supervision, (B) any license, permit, charter, registration or
approval necessary for the conduct of AmeriCredit's, Servicer's, the
Seller's or the Custodian's business is to be or may be suspended or
revoked, or (C) AmeriCredit, the Servicer, the Seller or the Custodian
is to cease and desist any practice, procedure or policy employed by
AmeriCredit, the Servicer, the Seller or the Custodian in the conduct
of its business, which, in any such case, may result in a Material
Adverse Change with respect to AmeriCredit, Servicer, the Seller or
the Custodian or would have a material adverse effect on the Owners or
the Insurer.
(h) FINANCING STATEMENTS AND FURTHER ASSURANCES. The Servicer shall,
at its own expense, promptly take, or cause to be taken, such actions as
may be necessary to (or as may be requested by the Insurer and, in the
reasonable judgment of the Insurer, are necessary or desirable) to (i)
create and maintain the Indenture as a valid and perfected Lien covering
the Collateral and (ii) fully preserve and protect the perfected first
priority security interest of the Trust Collateral Agent for the benefit of
the Issuer Secured Parties in, and all rights of the Trust Collateral Agent
for the benefit of the Issuer Secured Parties with respect to, the
Collateral, including, without limitation, the execution and filing of all
necessary financing statements or other instruments, and any amendments or
continuation statements relating thereto, necessary to be kept and filed in
such manner and in such places as may be required by law to preserve,
protect and perfect fully the Lien of the Trust Collateral Agent for the
benefit of the Issuer Secured Parties with respect to the Collateral. In
addition, each of the Servicer, the Seller and the Custodian agrees to
cooperate with S&P and Moody's in connection with any review of the
Transaction that may be undertaken by S&P or Moody's after the date hereof
and to provide all information reasonably requested by S&P or Moody's. In
the event that a successor servicer is appointed pursuant to the Sale and
Servicing Agreement, the transition costs and expenses incurred by such
successor servicer shall be paid in accordance with Section 5.7(a) of the
Sale and Servicing Agreement.
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(i) MAINTENANCE OF LICENSES. AmeriCredit, the Servicer, the Seller and
the Custodian, respectively, or any successors thereof shall maintain or
cause to be maintained all licenses, permits, charters and registrations
which are material to the conduct of its business.
(j) REDEMPTION OF OBLIGATIONS. AmeriCredit, the Servicer, the Seller
and the Custodian shall instruct the Trustee, upon redemption or payment in
full of the Obligations pursuant to the Indenture or otherwise, to furnish
to the Insurer a notice of such redemption and, upon a redemption or
payment in full of the Obligations, to surrender the Note Policy to the
Insurer for cancellation.
(k) DISCLOSURE DOCUMENT. Each Offering Document delivered with respect
to the Obligations shall clearly disclose that the Note Policy is not
covered by the property/casualty insurance security fund specified in
Article 76 of the New York Insurance Law.
(l) SERVICING OF RECEIVABLES. The Servicer shall perform such actions
with respect to the Receivables as are required by or provided in the Sale
and Servicing Agreement. The Servicer will provide the Insurer with written
notice of any change or amendment to any Transaction Document as currently
in effect.
(m) MAINTENANCE OF SECURITY INTEREST. On or before each February 1,
beginning in 2008 so long as any of the Obligations are outstanding, the
Servicer shall furnish to the Insurer and the Trust Collateral Agent an
officers' certificate either stating that such action has been taken with
respect to the recording, filing, rerecording and refiling of any financing
statements and continuation statements as is necessary to maintain the
interest of the Trust Collateral Agent created by the Indenture with
respect to the Collateral and reciting the details of such action or
stating that no such action is necessary to maintain such interests. Such
officers' certificate shall also describe the recording, filing,
rerecording and refiling of any financing statements and continuation
statements that will be required to maintain the interest of the Trust
Collateral Agent in the Collateral until the date such next officers'
certificate is due. The Servicer will use its best efforts to cause any
necessary recordings or filings to be made with respect to the Collateral.
(n) CLOSING DOCUMENTS. The Servicer shall provide or cause to be
provided to the Insurer a loose transcript of the Transaction Documents and
the Offering Document and an executed original copy of each document
executed in connection with the Transaction within 60 days after the date
of closing. Upon the request of the Insurer, the Servicer shall provide or
cause to be provided to the Insurer a copy of each of the Transaction
Documents on computer diskette, in a format acceptable to the Insurer.
(o) PREFERENCE PAYMENTS. With respect to any Preference Amount (as
defined in the Note Policy), the Servicer shall provide to the Insurer upon
the request of the Insurer:
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(i) a certified copy of the final nonappealable order of a court
having competent jurisdiction ordering the recovery by a trustee in
bankruptcy as voidable preference amounts included in previous
distributions under Section 5.7 of the Sale and Servicing Agreement to
any Owner pursuant to the United States Bankruptcy Code, 11 U.S.C.
Sections 101 et seq., as amended (the "Bankruptcy Code");
(ii) an opinion of counsel satisfactory to the Insurer, and upon
which the Insurer shall be entitled to rely, stating that such order
is final and is not subject to appeal;
(iii) an assignment in such form as is reasonably required by the
Insurer, irrevocably assigning to the Insurer all rights and claims of
the Servicer, the Trustee and any Note Owner relating to or arising
under the Receivable against the debtor which made such preference
payment or otherwise with respect to such preference amount; and
(iv) appropriate instruments to effect (when executed by the
affected party) the appointment of the Insurer as agent for the
Trustee and any Owner in any legal proceeding relating to such
preference payment being in a form satisfactory to the Insurer.
(p) THIRD-PARTY BENEFICIARY. AmeriCredit, the Servicer, the Seller and
the Custodian each agree that the Insurer shall have all rights of a
third-party beneficiary in respect of the Transaction Documents and each of
them hereby incorporates and restates its representations, warranties and
covenants as set forth therein for the benefit of the Insurer.
(q) INCORPORATION OF COVENANTS. AmeriCredit, the Servicer, the Seller
and the Custodian each agree to comply with their respective covenants set
forth in the Transaction Documents and hereby incorporate such covenants by
reference as if each were set forth herein.
(r) REPLACEMENT SERVICER. If servicing is transferred from the
Servicer to a replacement Servicer pursuant to Article IX of the Sale and
Servicing Agreement, then in the event that the fees and expenses of a
replacement servicer or any transition costs relating to the transfer of
servicing from the Servicer to the replacement servicer exceed the amounts
payable to such Servicer under the Sale and Servicing Agreement,
AmeriCredit shall promptly pay such fees, expenses or transition costs.
(s) CREDIT REPORTING. AmeriCredit and the Servicer agree to report
each Obligor's credit files to all three nationally recognized credit
reporting agencies in a timely manner.
Section 2.03. NEGATIVE COVENANTS OF AMERICREDIT, THE SERVICER, THE SELLER
AND THE CUSTODIAN. AmeriCredit, the Servicer, the Seller and the Custodian
hereby agree that during the Term of the Insurance Agreement, unless the Insurer
shall otherwise expressly consent in writing:
17
(a) IMPAIRMENT OF RIGHTS. None of AmeriCredit, the Servicer, the
Seller and the Custodian shall (i) take any action, or fail to take any
action, if such action or failure to take action may result in a material
adverse change as described in clause (b) of the definition of Material
Adverse Change with respect to AmeriCredit, the Servicer, the Seller or the
Custodian, or may interfere with the enforcement of any rights of the
Insurer under or with respect to the Transaction Documents; (ii) waive or
alter any rights with respect to the Collateral (or any agreement or
instrument relating thereto), other than as contemplated by the Transaction
Documents; (iii) take any action, or fail to take any action, if such
action or failure to take action may interfere with the enforcement of any
rights of the Trust Collateral Agent for the benefit of the Issuer Secured
Parties with respect to the Collateral; (iv) fail to pay any tax,
assessment, charge or fee with respect to the Collateral, or fail to defend
any action, if such failure to pay or defend may adversely affect the
priority or enforceability of the Trust Collateral Agent's first priority
perfected security interest in the Collateral or any of AmeriCredit's, the
Servicer's, the Seller's or the Custodian's, as applicable, right, title or
interest in the Collateral except as expressly set forth in the Transaction
Documents; or (v) permit the validity or effectiveness of the Obligations
or the Transaction Documents to be impaired, or permit the Lien of the
Indenture to be amended, hypothecated, subordinated, terminated or
discharged. AmeriCredit, the Servicer, the Seller or the Custodian shall
give the Insurer written notice of any such action or failure to act on the
earlier of (A) the date upon which any publicly available filing or release
is made with respect to such action or failure to act or (B) promptly prior
to the date of consummation of such action or failure to act. AmeriCredit,
the Servicer, the Seller and the Custodian shall furnish to the Insurer all
information requested by it that is reasonably necessary to determine
compliance with this Section (a).
(b) ADVERSE SELECTION PROCEDURE. AmeriCredit, the Servicer, the Seller
and the Custodian shall not use any adverse selection procedure in
selecting Receivables to be transferred to the Trust Collateral Agent from
the outstanding Receivables that qualify under the Indenture or the Sale
and Servicing Agreement for inclusion in the Collateral.
(c) WAIVER, AMENDMENTS, ETC. None of AmeriCredit, the Servicer, the
Seller or the Custodian shall waive, modify or amend, or consent to any
waiver, modification or amendment of, any of the terms, provisions or
conditions of any of the Transaction Documents without the prior written
consent of the Insurer.
(d) BANKRUPTCY PROCEEDINGS. AmeriCredit shall not institute against,
or join any other person in instituting against the Servicer or the Seller,
as applicable, or any affiliate thereof, any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceeding, or other proceeding
under any bankruptcy or similar law, for one year and a day after the
expiration of the Term of the Insurance Agreement.
(e) PRESERVATION OF COLLATERAL. Without the consent of the Insurer,
none of AmeriCredit, the Servicer, the Seller or the Custodian shall take
any action, or fail to take any action with respect to any item of
Collateral, including (but not limited to) any amendment of the terms and
conditions of the Collateral or any consent to any waiver of rights or to
any other action under or in respect of any Collateral unless such action
18
conforms to any requirements with respect thereto set forth in the
Transaction Documents.
(f) SECURITY INTERESTS. None of AmeriCredit, the Servicer, the Seller
or the Custodian shall permit the Lien of the Trust Collateral Agent for
the benefit of the Issuer Secured Parties not to constitute a valid first
priority perfected security interest in the Collateral securing amounts due
to the Trust Collateral Agent for the benefit of the Issuer Secured Parties
as set forth in the Transaction Documents.
(g) ENFORCEMENT. None of AmeriCredit, the Servicer, the Seller or the
Custodian shall take any action, or fail to take any action, if such action
or failure to take such action may interfere with the enforcement of the
rights of the Insurer and the Trust Collateral Agent on behalf of the
Issuer Secured Parties under the agreements or instruments related to any
of the Collateral.
(h) INSOLVENCY OF THE SELLER. The Seller shall not consent to any
involuntary case or proceeding seeking liquidation, rehabilitation,
reorganization, conservation or other relief with respect to its debts
under any Insolvency Law, consent to any such relief or the taking
possession by any such official in an involuntary case or other proceeding
commenced against the Seller or answer or consent seeking liquidation,
rehabilitation, reorganization, conservation or other relief under any
applicable Insolvency Law.
(i) EXEMPT FROM INVESTMENT COMPANY REGISTRATION. None of AmeriCredit,
the Servicer, the Seller or the Custodian shall take any action, or permit
the taking of any action, that would require any of AmeriCredit, the
Servicer, the Seller, the Custodian or the Trust to register as an
"investment company" under the Investment Company Act.
(j) OFFERING DOCUMENTS. None of AmeriCredit, the Servicer, the Seller
or the Custodian shall make any untrue statement of a material fact in the
Offering Document or in any amendment or supplement thereto, or omit to
state any material fact necessary in order to make the statements made, in
the light of the circumstances under which they are made, not misleading as
of the Date of Issuance or as of the date of such Offering Document or
amendment or supplement (as applicable).
(k) INSURER INFORMATION. None of AmeriCredit, the Servicer, the Seller
or the Custodian shall include in any Offering Document or other document
prepared and distributed in connection with the issuance of the Obligations
(other than Insurer Information in documents required to be filed with the
Commission), or any other correspondence or communications relating to the
Transaction, any information concerning the Insurer or the Policies that is
not supplied or consent to in writing by the Insurer expressly for
inclusion therein.
(l) RECEIVABLES; CHARGE OFF POLICY. Except as otherwise permitted in
the Indenture or Sale and Servicing Agreement, the Servicer and the Seller
shall not materially alter or amend any Receivable, their respective
collection policies or their respective charge-off policies in a manner
that materially adversely affects the Insurer
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unless the Insurer shall have previously given its consent, which consent
shall not be withheld unreasonably.
Section 2.04. REPRESENTATIONS AND WARRANTIES OF THE ISSUER. As of the Date
of Issuance, the Issuer represents, warrants and covenants as follows:
(a) DUE ORGANIZATION AND QUALIFICATION. The Issuer is a statutory
trust and is duly organized and validly existing under the laws of its
jurisdiction of organization. The Issuer is duly qualified to do business
and has obtained all licenses, permits, charters, registrations and
approvals (together, "approvals") necessary for the conduct of its business
as currently conducted and as described in the Offering Document and the
performance of its obligations under the Transaction Documents to which it
is a party, in each jurisdiction in which the failure to be so qualified or
to obtain such approvals would render any Transaction Document to which it
is a party unenforceable in any respect or would have a material adverse
effect upon the Transaction, the Note Owners or the Insurer.
(b) POWER AND AUTHORITY. The Issuer has all necessary power and
authority to conduct its business as currently conducted and, as described
in the Offering Document, to execute, deliver and perform its obligations
under the Transaction Documents to which it is a party and to consummate
the Transaction.
(c) DUE AUTHORIZATION. The execution, delivery and performance of the
Transaction Documents by the Issuer have been duly authorized by all
necessary action and do not require any additional approvals or consents,
or other action by or any notice to or filing with any Person, including,
without limitation, any governmental entity or the Issuer's
certificateholders, which have not previously been obtained or given by the
Issuer.
(d) NONCONTRAVENTION. Neither the execution and delivery of the
Transaction Documents by the Issuer, the consummation of the Transaction
contemplated thereby or by the Offering Document nor the satisfaction of
the terms and conditions of the Transaction Documents:
(i) conflicts with or results in any breach or violation of any
provision of the Trust Agreement or any law, rule, regulation, order,
writ, judgment, injunction, decree, determination or award currently
in effect having applicability to the Issuer or any of its material
properties, including regulations issued by an administrative agency
or other governmental authority having supervisory powers over the
Issuer;
(ii) constitutes a default (or an event which, with the giving of
notice or the passage of time, or both, would constitute a default) by
the Issuer under or a breach of any provision of any loan agreement,
mortgage, indenture or other agreement or instrument to which the
Issuer is a party or by which any of its properties, which are
individually or in the aggregate material to the Issuer, is or may be
bound or affected; or
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(iii) results in or requires the creation of any lien upon or in
respect of any assets of the Issuer except as contemplated by the
Transaction Documents.
(e) LEGAL PROCEEDINGS. There is no action, proceeding or investigation
by or before any court, governmental or administrative agency or arbitrator
against or affecting the Issuer or any properties or rights of the Issuer
pending or, to the Issuer's knowledge after reasonable inquiry, threatened,
which, in any case, could reasonably be expected to result in a Material
Adverse Change with respect to the Issuer.
(f) VALID AND BINDING OBLIGATIONS. The Obligations, when executed,
authenticated and issued in accordance with the Indenture and the
Transaction Documents (other than the Obligations), when executed and
delivered by the Issuer, will constitute the legal, valid and binding
obligations of the Issuer enforceable in accordance with their respective
terms, except as such enforceability may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting
creditors' rights generally and general equitable principles and public
policy considerations as to rights of indemnification for violations of
federal securities laws. The Issuer will not at any time in the future deny
that the Transaction Documents constitute the legal, valid and binding
obligations of the Issuer.
(g) COMPLIANCE WITH LAW, ETC. No practice, procedure or policy
employed, or proposed to be employed, by the Issuer in the conduct of its
business violates any law, regulation, judgment, agreement, order or decree
applicable to it that, if enforced, could reasonably be expected to result
in a Material Adverse Change with respect to the Issuer. The Issuer is not
in breach of or default under any applicable law or administrative
regulation of its jurisdiction of organization, or any department,
division, agency or instrumentality thereof or of the United States or any
applicable judgment or decree or any loan agreement, note, resolution,
certificate, agreement or other instrument to which the Issuer is a party
or is otherwise subject which, if enforced, would have a material adverse
effect on the ability of the Issuer, to perform its obligations under the
Transaction Documents.
(h) COMPLIANCE WITH SECURITIES LAWS. The offer and sale of the
Obligations comply in all material respects with all requirements of law,
including all registration requirements of applicable securities laws.
Without limitation of the foregoing, the Offering Document does not contain
any untrue statement of a material fact and does not omit to state a
material fact necessary to make the statements made therein, in light of
the circumstances under which they were made, not misleading; provided,
however, that no representation is made with respect to the information in
the Offering Document set forth under the heading "THE POLICY" and "THE
INSURER" or the consolidated financial statements of the Insurer
incorporated by reference in the Offering Document. Neither the offer nor
the sale of the Obligations has been or will be in violation of the
Securities Act or any other federal or state securities laws.
(i) TAXES. The Issuer has filed prior to the date hereof all federal
and state tax returns that are required to be filed and paid all taxes,
including any assessments received by them that are not being contested in
good faith, to the extent that such taxes have
21
become due, except for any failures to file or pay that, individually or in
the aggregate, would not result in a Material Adverse Change with respect
to the Issuer.
(j) TRANSACTION DOCUMENTS. Each of the representations and warranties
of the Issuer contained in the Transaction Documents is true and correct in
all material respects, and the Issuer hereby makes each such representation
and warranty to, and for the benefit of, the Insurer as if the same were
set forth in full herein; provided that the remedy for any breach of this
paragraph shall be limited to the remedies specified in the related
Transaction Document or in this Insurance Agreement.
(k) SOLVENCY. The Issuer is solvent and will not be rendered insolvent
by the Transaction and, after giving effect to the Transaction, the Issuer
will not be left with an unreasonably small amount of capital with which to
engage in its respective business, nor does the Issuer intend to incur, or
believe that it has incurred, debts beyond its ability to pay as they
mature. The Issuer does not contemplate the commencement of insolvency,
bankruptcy, liquidation or consolidation proceedings or the appointment of
a receiver, liquidator, conservator, trustee or similar official in respect
of the Issuer or any of its assets.
(l) PRINCIPAL PLACE OF BUSINESS The principal place of business of the
Issuer is located in Wilmington, Delaware and the Issuer is a statutory
trust organized under the laws of the State of Delaware. "AmeriCredit
Automobile Receivables Trust 2007-A-X" is the correct legal name of the
Issuer indicated on the public records of the Issuer's jurisdiction of
organization which shows the Issuer to be organized.
(m) INVESTMENT COMPANY ACT. The Issuer is not an "investment company,"
or an "affiliated person" of, or "promoter" or "principal underwriter" for,
an "investment company," as such terms are defined in the Investment
Company Act. The Issuer is not required to be registered as an "investment
company" under the Investment Company Act.
(n) NO CONSENTS. No authorization or approval or other action by, and
no notice to or filing with, any Person, including, without limitation, any
governmental entity or regulatory body, is required for the due execution,
delivery and performance by the Issuer of the Transaction Documents or any
other material document or instrument to be delivered thereunder, except
(in each case) such as have been obtained or the failure of which to be
obtained would not be reasonably likely to have a material adverse effect
on the Transaction.
(o) NO EVENT OF DEFAULT. There is no event of default on the part of
the Issuer under any agreement involving financial obligations which would
materially adversely impact the financial condition or operations of the
Issuer or its obligations under any document associated with this
Transaction.
(p) OPINION FACTS AND ASSUMPTIONS. The Opinion Facts and Assumptions
insofar as they relate to the Issuer are true and correct as of the Date of
Issuance.
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Section 2.05. AFFIRMATIVE COVENANTS OF THE ISSUER. The Issuer hereby agrees
that during the Term of the Insurance Agreement, unless the Insurer shall
otherwise expressly consent in writing:
(a) COMPLIANCE WITH AGREEMENTS AND APPLICABLE LAWS. The Issuer shall
not be in default under the Transaction Documents and shall comply with all
material requirements of any law, rule or regulation applicable to it. The
Issuer shall not agree to any material amendment to or modification of the
terms of any Transaction Documents unless the Insurer shall have given its
prior written consent.
(b) MAINTAIN EXISTENCE. The Issuer and its successors and assigns
shall maintain its existence and shall at all times continue to be duly
organized under the laws of its jurisdiction and duly qualified and duly
authorized and shall conduct its business in accordance with the terms of
its organizational documents.
(c) NOTICE OF MATERIAL EVENTS. The Issuer shall be obligated promptly
to inform the Insurer in writing of the occurrence of any of the following
to the extent any of the following relate to it and to the extent that it
receives actual notice of the occurrence of any of the following events:
(i) the submission of any claim or the initiation or threat of
any legal process, litigation or administrative or judicial
investigation, or rule making or disciplinary proceeding by or against
the Issuer that (A) could be required to be disclosed to the
Commission or to the Issuer's owners or (B) could result in a Material
Adverse Change with respect to the Issuer or the promulgation of any
proceeding or any proposed or final rule which would result in a
Material Adverse Change with respect to the Issuer;
(ii) any change in the location of the Issuer's principal office,
jurisdiction of organization, legal name as indicated on the public
records of the Issuer's jurisdiction of organization which shows the
Issuer's to be organized, or any change in the location of the
Issuer's books and records;
(iii) the occurrence of any Default or Insurance Agreement Event
of Default or of any Material Adverse Change;
(iv) the commencement of any proceedings by or against the Issuer
under any applicable bankruptcy, reorganization, liquidation,
rehabilitation, insolvency or other similar law now or hereafter in
effect or of any proceeding in which a receiver, liquidator,
conservator, trustee or similar official shall have been, or may be,
appointed or requested for the Issuer or any of its assets; or
(v) the receipt of notice that (A) the Issuer is being placed
under regulatory supervision, (B) any license, permit, charter,
registration or approval necessary for the conduct of the Issuer's
business is to be, or may be suspended or revoked, or (C) the Issuer
is to cease and desist any practice, procedure or policy employed by
the Issuer in the conduct of its business, and such cessation may
result in a Material Adverse Change with respect to the Issuer.
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(d) FINANCING STATEMENTS AND FURTHER ASSURANCES. To the extent
provided in the Indenture, the Issuer will cause to be filed all necessary
financing statements or other instruments, and any amendments or
continuation statements relating thereto, necessary to be kept and filed in
such manner and in such places as may be required by law to preserve and
protect fully the interest of the Trustee. The Issuer shall, upon the
request of the Insurer, from time to time, execute, acknowledge and
deliver, or cause to be executed, acknowledged and delivered, within 30
days of such request, such amendments hereto and such further instruments
and take such further action as may be reasonably necessary to effectuate
the intention, performance and provisions of the Transaction Documents to
which it is a party. In addition, the Issuer agrees to cooperate with S&P
and Moody's in connection with any review of the Transaction that may be
undertaken by S&P and Moody's after the date hereof.
(e) MAINTENANCE OF LICENSES. The Issuer, or any successors thereof,
shall maintain all licenses, permits, charters and registrations which are
material to the conduct of its business.
(f) THIRD-PARTY BENEFICIARY. The Issuer agrees that the Insurer shall
have all rights of a third-party beneficiary in respect of each Transaction
Document and hereby incorporates and restates its representations,
warranties and covenants as set forth therein for the benefit of the
Insurer.
(g) TAX MATTERS. The Issuer will take all actions necessary to ensure
that the Issuer is treated as a disregarded entity for federal tax
purposes, and not as an association (or publicly traded partnership),
taxable as a corporation.
(h) FINANCIAL STATEMENTS; ACCOUNTANTS' REPORTS; OTHER INFORMATION. The
Issuer shall keep or cause to be kept in reasonable detail books and
records of account of its assets and business, including, but not limited
to, books and records relating to the Transaction. The Issuer shall furnish
or cause to be furnished to the Insurer promptly upon receipt thereof,
copies of all schedules, financial statements or other similar reports
delivered to or by the Issuer pursuant to the terms of the Transaction
Documents and, promptly upon request, such other data as the Insurer may
reasonably request.
(i) ACCESS TO RECORDS; DISCUSSIONS WITH OFFICERS AND ACCOUNTANTS. On
an annual basis, or upon the occurrence of a Material Adverse Change, the
Issuer shall, upon the request of the Insurer, at its expense, permit the
Insurer or its authorized agents:
(i) to inspect the books and records of the Issuer as they may
relate to the Obligations, the obligations of the Issuer under the
Transaction Documents, and the Transaction;
(ii) to discuss the affairs, finances and accounts of the Issuer;
and
(iii) to discuss the affairs, finances and accounts of the Issuer
with the Issuer's independent accountants, provided that a
representative of the Seller or the Issuer shall have the right to be
present during such discussions.
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Such inspections and discussions shall be conducted during normal
business hours and shall not unreasonably disrupt the business of the
Issuer. The books and records of the Issuer will be maintained at the
address of the Issuer designated herein for receipt of notices, unless the
Issuer shall otherwise advise the parties hereto in writing.
The Insurer agrees that it and its shareholders, directors, agents,
accountants and attorneys shall keep confidential any matter of which it
becomes aware through such inspections or discussions (unless readily
available from public sources), except as may be otherwise required by
regulation, law or court order or requested by appropriate governmental
authorities or as necessary to preserve its rights or security under or to
enforce the Transaction Documents, provided that the foregoing shall not
limit the right of the Insurer to make such information available to its
regulators, securities rating agencies, reinsurers, credit and liquidity
providers, counsel and accountants.
(j) DISCLOSURE DOCUMENT. Each Offering Document delivered with respect
to the Obligations shall clearly disclose that the Policy is not covered by
the property/casualty insurance security fund specified in Article 76 of
the New York Insurance Law.
Section 2.06. NEGATIVE COVENANTS OF THE ISSUER. The Issuer hereby agrees
that during the Term of the Insurance Agreement, unless the Insurer shall
otherwise expressly consent in writing:
(a) IMPAIRMENT OF RIGHTS. The Issuer shall not take any action, or
fail to take any action, if such action or failure to take action may
result in a material adverse change as described in clause (b) of the
definition of Material Adverse Change with respect to the Issuer, or may
interfere with the enforcement of any rights of the Insurer under or with
respect to the Transaction Documents. The Issuer shall give the Insurer
written notice of any such action or failure to act on the earlier of: (i)
the date upon which any publicly available filing or release is made with
respect to such action or failure to act or (ii) promptly prior to the date
of consummation of such action or failure to act. The Issuer shall furnish
to the Insurer all information requested by it that is reasonably necessary
to determine compliance with this paragraph.
(b) WAIVER, AMENDMENTS, ETC. Except in accordance with the Transaction
Documents, the Issuer shall not waive, modify or amend, or consent to any
waiver, modification or amendment of, any of the material terms, provisions
or conditions of the Transaction Documents without the consent of the
Insurer. Except upon the prior written consent of the Insurer, the Issuer
shall not allow the modification or amendment, nor consent to any
modification or amendment of the Certificate of Trust issued pursuant to
the Trust Agreement.
(c) RESTRICTIONS ON LIENS. The Issuer shall not, except as
contemplated by the Transaction Documents, (i) create, incur or suffer to
exist, or agree to create, incur or suffer to exist, or consent to cause or
permit in the future (upon the happening of a contingency or otherwise) the
creation, incurrence or existence of any lien or restriction on
transferability of the Receivables or any other Collateral or (ii) sign,
file or authorize
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the filing under the Uniform Commercial Code of any jurisdiction any
financing statement which names the Issuer as a debtor, or sign any
security agreement authorizing any secured party thereunder to file such
financing statement, with respect to the Receivables or any other
Collateral.
(d) SUCCESSORS. The Issuer shall not remove or replace, or cause to be
removed or replaced, the Servicer, the Trustee, the Trust Collateral Agent,
the Collateral Agent or the Owner Trustee without the prior written consent
of the Insurer.
(e) SUBSIDIARIES. The Issuer shall not form, or cause to be formed,
any subsidiaries.
(f) NO MERGERS. The Issuer shall not consolidate with or merge into
any Person or transfer all or any material amount of its assets to any
Person, liquidate or dissolve except as permitted by the Trust Agreement
and as contemplated by the Transaction Documents.
(g) OTHER ACTIVITIES. The Issuer shall not (i) sell, pledge, transfer,
exchange or otherwise dispose of any of its assets except as permitted
under the Transaction Documents; or (ii) engage in any business or activity
except as contemplated by the Transaction Documents and as permitted by the
Trust Agreement.
(h) TRUST AGREEMENT. The Issuer shall not amend the Trust Agreement
without the prior written consent of the Insurer.
Section 2.07. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE TRUSTEE, THE
TRUST COLLATERAL AGENT, THE COLLATERAL AGENT AND THE BACKUP SERVICER. The
Trustee, the Trust Collateral Agent, the Collateral Agent and the Backup
Servicer represents and warrants (it being understood that each such party makes
such representations and warranties with respect to itself only) to, as of the
Date of Issuance, and covenants with the other parties hereto as follows:
(a) DUE ORGANIZATION AND QUALIFICATION. Each of the Trustee, the Trust
Collateral Agent, the Collateral Agent and the Backup Servicer is a
national banking association, duly organized, validly existing and in good
standing under the laws of its jurisdiction of incorporation. Each of the
Trustee, the Trust Collateral Agent, the Collateral Agent and the Backup
Servicer is duly qualified to do business, is in good standing and has
obtained all licenses, permits, charters, registrations and approvals
(together, "approvals") necessary for the conduct of its business as
currently conducted and as described in the Offering Document and the
performance of its obligations under the Transaction Documents in each
jurisdiction in which the failure to be so qualified or to obtain such
approvals would render any Transaction Document unenforceable in any
respect or would have a material adverse effect upon the Transaction, the
Note Owners or the Insurer.
(b) DUE AUTHORIZATION. The execution, delivery and performance of the
Transaction Documents by the Trustee, the Trust Collateral Agent, the
Collateral Agent and the Backup Servicer have been duly authorized by all
necessary corporate action and do not require any additional approvals or
consents of, or other action by or any notice to
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or filing with, any Person, including, without limitation, any governmental
entity or the Trustee, the Trust Collateral Agent, the Collateral Agent and
the Backup Servicer's stockholders, which have not previously been obtained
or given by the Trustee and the Backup Servicer.
(c) NONCONTRAVENTION. To the best of its knowledge, none of the
execution and delivery of the Transaction Documents by the Trustee, the
Trust Collateral Agent, the Collateral Agent or the Backup Servicer, the
consummation of the transactions contemplated thereby or the satisfaction
of the terms and conditions of the Transaction Documents:
(i) conflicts with or results in any breach or violation of any
provision of the certificate or articles of incorporation or bylaws of
the Trustee, the Trust Collateral Agent, the Collateral Agent or the
Backup Servicer or any law, rule, regulation, order, writ, judgment,
injunction, decree, determination or award currently in effect having
applicability to the Trustee, the Trust Collateral Agent, the
Collateral Agent or the Backup Servicer or any of its material
properties, including regulations issued by an administrative agency
or other governmental authority having supervisory powers over the
Trustee, the Trust Collateral Agent, the Collateral Agent or the
Backup Servicer;
(ii) constitutes a default (or an event which, with the giving of
notice or the passage of time, or both, would constitute a default) by
the Trustee, the Trust Collateral Agent, the Collateral Agent or the
Backup Servicer under or a breach of any provision of any loan
agreement, mortgage, indenture or other agreement or instrument to
which the Trustee, the Trust Collateral Agent, the Collateral Agent or
the Backup Servicer is a party or by which any of its properties,
which are individually or in the aggregate material to the Trustee,
the Trust Collateral Agent, the Collateral Agent or the Backup
Servicer, is or may be bound or affected; or
(iii) results in or requires the creation of any lien upon or in
respect of any assets of the Trustee, the Trust Collateral Agent, the
Collateral Agent or the Backup Servicer, except as contemplated by the
Transaction Documents.
(d) LEGAL PROCEEDINGS. To the best of its knowledge, there is no
action, proceeding or investigation by or before any court, governmental or
administrative agency or arbitrator against or affecting the Trustee, the
Trust Collateral Agent, the Collateral Agent or the Backup Servicer or any
of its subsidiaries, or any properties or rights of the Trustee, the Trust
Collateral Agent, the Collateral Agent or the Backup Servicer or any of
their respective subsidiaries, pending or, to the Trustee's, the Trust
Collateral Agent's, the Collateral Agent's or the Backup Servicer's
knowledge after reasonable inquiry, threatened, which in any case could
reasonably be expected to result in a Material Adverse Change with respect
to the Trustee, the Trust Collateral Agent, the Collateral Agent or the
Backup Servicer.
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(e) VALID AND BINDING OBLIGATIONS AND AGREEMENTS. Transaction
Documents (other than the Obligations), to which the Trustee, the Trust
Collateral Agent, the Collateral Agent and the Backup Servicer are parties,
when executed and delivered by the Trustee, the Trust Collateral Agent, the
Collateral Agent and the Backup Servicer, will constitute the legal, valid
and binding obligations of the Trustee, the Trust Collateral Agent, the
Collateral Agent and the Backup Servicer, as applicable, enforceable in
accordance with their respective terms, except as such enforceability may
be limited by bankruptcy, insolvency, reorganization, moratorium or other
similar laws affecting creditors' rights generally and general equitable
principles.
(f) COMPLIANCE WITH LAW, ETC. To the best of its knowledge, no
practice, procedure or policy employed, or proposed to be employed, by the
Trustee, the Trust Collateral Agent, the Collateral Agent or the Backup
Servicer in the conduct of its business violates any law, regulation,
judgment, agreement, order or decree applicable to the Trustee, the Trust
Collateral Agent, the Collateral Agent or the Backup Servicer that, if
enforced, could reasonably be expected to result in a Material Adverse
Change with respect to the Trustee, the Trust Collateral Agent, the
Collateral Agent or the Backup Servicer. To the best of its knowledge, none
of the Trustee, the Trust Collateral Agent, the Collateral Agent nor the
Backup Servicer are in breach of or in default under any applicable law or
administrative regulation of its jurisdiction of organization, or any
department, division, agency or instrumentality thereof or of the United
States or any applicable judgment or decree or any loan agreement, note,
resolution, certificate, agreement or other instrument to which the
Trustee, the Trust Collateral Agent, the Collateral Agent and the Backup
Servicer is a party or is otherwise subject which, if enforced, would have
a material adverse effect on the ability of the Trustee, the Trust
Collateral Agent, the Collateral Agent and the Backup Servicer to perform
its obligations under the Transaction Documents.
(g) TRANSACTION DOCUMENTS. Each of the representations and warranties
of the Trustee, the Trust Collateral Agent, the Collateral Agent and the
Backup Servicer contained in the Transaction Documents is true and correct
in all material respects, and the Trustee, the Trust Collateral Agent, the
Collateral Agent and the Backup Servicer hereby makes each such
representation and warranty to, and for the benefit of, the Insurer as if
the same were set forth in full herein.
(h) COMPLIANCE AND AMENDMENTS. Each of the Trustee, the Trust
Collateral Agent, the Collateral Agent and the Backup Servicer shall comply
in all material respects with the terms and conditions of the Transaction
Documents to which it is a party, and none of the Trustee, the Trust
Collateral Agent, the Collateral Agent nor the Backup Servicer shall agree
to any amendment to or modification of the terms of any of the Transaction
Documents to which it is a party unless the Insurer shall otherwise give
its prior written consent (which consent shall not be unreasonably withheld
with respect to amendments or modifications which only affect the Trustee,
the Trust Collateral Agent, the Collateral Agent and/or the Backup
Servicer).
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ARTICLE III
THE POLICIES; REIMBURSEMENT
Section 3.01. ISSUANCE OF THE POLICIES. The Insurer agrees to issue the
Policies on the Closing Date subject to satisfaction of the conditions precedent
set forth below:
(a) PAYMENT OF INITIAL PREMIUM AND EXPENSES. The Insurer shall have
been paid, by AmeriCredit that portion of a nonrefundable Premium payable
on the Date of Issuance (if any), and AmeriCredit shall agree to reimburse
or pay directly other fees and expenses identified in Section 3.02 hereof
as payable.
(b) TRANSACTION DOCUMENTS. The Insurer shall have received a fully
executed copy of the Premium Letter and a copy of each of the Transaction
Documents and the Offering Document, in form and substance satisfactory to
the Insurer, duly authorized, executed and delivered by each party thereto.
(c) CERTIFIED DOCUMENTS AND RESOLUTIONS. The Insurer shall have
received a copy of (i) the Trust Certificate of the Issuer, (ii) the
certificate or articles of incorporation and bylaws or other organizational
documents of the Servicer, the Seller and the Custodian, (iii) the
resolutions of the Seller's board of directors authorizing the sale of the
Receivables, and (iv) the resolutions of the applicable governing body of
each of AmeriCredit, the Seller, the Servicer and the Custodian in form and
substance satisfactory to the Insurer, authorizing the execution, delivery
and performance of AmeriCredit, the Seller, the Servicer and the Custodian
of the Transaction Documents and the transactions contemplated thereby, in
each case certified by the Secretary, an Assistant Secretary, a Director,
as applicable (which certificate shall state that such constitutive
documents and resolutions are in full force and effect without modification
on the Date of Issuance and that shareholder consent to the execution,
delivery and performance of such documents is not necessary).
(d) INCUMBENCY CERTIFICATE. The Insurer shall have received a
certificate of the Secretary or an Assistant Secretary of the Servicer, the
Seller and the Custodian certifying the names and signatures of the
officers of the Servicer, the Seller and the Custodian authorized to
execute and deliver the Transaction Documents.
(e) REPRESENTATIONS AND WARRANTIES; CERTIFICATE. The representations
and warranties of the Servicer, the Seller and the Custodian set forth or
incorporated by reference in this Insurance Agreement shall be true and
correct as of the Date of Issuance as if made on the Date of Issuance, and
the Insurer shall have received a certificate of appropriate officers of
the Servicer, the Seller and the Custodian to that effect.
(f) OPINIONS OF COUNSEL.
(i) In-house counsel to AmeriCredit Corp. shall have issued his
favorable opinion, in form and substance acceptable to the Insurer and
its counsel, regarding the corporate existence and authority of
AmeriCredit, the Servicer, the Seller and the Custodian.
29
(ii) The law firm of Dewey Ballantine LLP shall have issued its
favorable opinion, in form and substance acceptable to the Insurer and
its counsel, regarding the enforceability and validity of the
Transaction Documents against AmeriCredit, the Servicer, the Seller
and the Custodian.
(iii) The law firm of Richards, Layton & Finger shall have issued
its favorable opinion, in form and substance acceptable to the Insurer
and its counsel, regarding the statutory trust existence and authority
of the Issuer and the validity and the enforceability of the
Transaction Documents against the Issuer.
(iv) In-house counsel of Wells Fargo Bank, National Association
shall have issued his favorable opinion, in form and substance
acceptable to the Insurer and its counsel, regarding the corporate
existence and authority of the Trustee, the Trust Collateral Agent,
the Backup Servicer and the Collateral Agent and the validity and the
enforceability of the Transaction Documents against the Trustee.
(v) The law firm of Dewey Ballantine LLP shall have furnished its
opinions, in form and substance acceptable to the Insurer and its
counsel, regarding the sale of the Receivables, certain matters with
respect to perfection issues, and the tax treatment of payments on the
Obligations under federal tax laws.
(vi) The Insurer shall have received such other opinions of
counsel, in form and substance acceptable to the Insurer and its
counsel, addressing such other matters as the Insurer may reasonably
request. Each opinion of counsel delivered in connection with the
Transaction shall be addressed to and delivered to the Insurer.
(g) APPROVALS, ETC. The Insurer shall have received true and correct
copies of all approvals, licenses and consents, if any, including, without
limitation, any required approval of the shareholders of AmeriCredit, the
Servicer, the Seller and the Custodian, required in connection with the
Transaction.
(h) NO LITIGATION, ETC. No suit, action or other proceeding,
investigation or injunction, or final judgment relating thereto, shall be
pending or threatened before any court or governmental agency in which it
is sought to restrain or prohibit or to obtain damages or other relief in
connection with the Transaction Documents or the consummation of the
Transaction.
(i) LEGALITY. No statute, rule, regulation or order shall have been
enacted, entered or deemed applicable by any government or governmental or
administrative agency or court that would make the transactions
contemplated by any of the Transaction Documents illegal or otherwise
prevent the consummation thereof.
(j) ISSUANCE OF RATINGS. The Insurer shall have received confirmation
that the rating on the Obligations without regard to the Note Policy will
have a shadow rating from S&P and Moody's at a level required by the
Insurer and, when issued, will be rated "AAA" by S&P and "Aaa" by Moody's.
30
(k) FILINGS AND RECORDINGS. The Insurer shall have received evidence
satisfactory to it of the delivery of the Collateral as of the Date of
Issuance to the Issuer free and clear of any Liens and in accordance with
the Sale and Servicing Agreement and the Indenture, the filing and/or
recording in all applicable jurisdictions (or such filing and/or recording
having been provided for in a manner satisfactory to the Insurer) of all
documents, including, without limitation, duly executed and delivered
copies of the Security Documents, financing statements, termination
statements and other appropriate instruments, in form and substance
satisfactory to the Insurer, as may be necessary in the opinion of the
Insurer to perfect the first priority security interest created by the
Security Documents, and all taxes, fees and other charges payable in
connection with such execution, delivery, recording and filing shall have
been paid.
(l) NO DEFAULT. No Default or Insurance Agreement Event of Default
shall have occurred.
(m) ADDITIONAL ITEMS. The Insurer shall have received such other
documents, instruments, approvals or opinions requested by the Insurer or
its counsel as may be reasonably necessary to effect the Transaction,
including, but not limited to, evidence satisfactory to the Insurer and its
counsel that the conditions precedent, if any, in the Transaction Documents
have been satisfied.
(n) CONFORM TO DOCUMENTS. The Insurer and its counsel shall have
determined that all documents, certificates and opinions to be delivered in
connection with the Obligations conform to the terms of the Transaction
Documents.
(o) COMPLIANCE. AmeriCredit, the Seller, the Servicer, the Custodian,
Trustee, the Trust Collateral Agent, the Collateral Agent, the Backup
Servicer, the Issuer and the Owner Trustee shall each be, as of the Date of
Issuance, in compliance with the terms of the Transaction Documents to
which it is a party and the Insurer shall have received evidence
satisfactory to it that the Policy and all interest, fees, charges and
other sums collected and to be collected in connection therewith and paid
to the Insurer will not be usurious under applicable law.
(p) SATISFACTION OF CONDITIONS OF THE UNDERWRITING AGREEMENT. All
conditions in the Underwriting Agreement relating to the Underwriters'
obligation to purchase the Obligations shall have been satisfied.
(q) SATISFACTION OF CONDITIONS IN THE TRANSACTION DOCUMENTS. All
conditions contained in the Transaction Documents shall have been
satisfied.
(r) UNDERWRITING AGREEMENT. The Insurer shall have received copies of
each of the documents, and shall be entitled to rely on each of the
documents, required to be delivered to the Underwriters pursuant to the
Underwriting Agreement.
(s) RECEIPT. The Insurer shall have received a certificate or other
written confirmation of the Trust Collateral Agent attesting to (i) the
receipt of the Collateral required to be delivered as of the Date of
Issuance and (ii) the Trust Collateral Agent's establishment of the
Collection Account and the Note Distribution Account.
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(t) ESTABLISHMENT OF SPREAD ACCOUNT. The Insurer shall have received a
certificate or the written confirmation of the Collateral Agent attesting
to the establishment of the Spread Account.
Section 3.02. PAYMENT OF FEES AND PREMIUM.
(a) LEGAL AND ACCOUNTING FEES. AmeriCredit shall pay or cause to be
paid, on the Date of Issuance (or as otherwise billed), legal fees and
disbursements incurred by the Insurer in connection with the issuance of
the Policies and any fees of the Insurer's auditors, in each case in
accordance with the terms of the Premium Letter. Any fees of the Insurer's
auditors payable in respect of any amendment or supplement to the Offering
Document or any other Offering Document incurred after the Date of Issuance
shall be paid by AmeriCredit on demand.
(b) PREMIUM. In consideration of the issuance by the Insurer of the
Policies, the Insurer shall be entitled to receive the Premium as and when
due in accordance with the terms of the Premium Letter first, from the
Issuer pursuant to the Sale and Servicing Agreement, and second, to the
extent the amounts in subclause first are not sufficient, directly from the
Servicer. The Premium shall be calculated according to the Premium Letter
for the amount due on each Distribution Date. The Premium paid hereunder or
under the Sale and Servicing Agreement shall be nonrefundable without
regard to whether the Insurer makes any payment under the Policies or any
other circumstances relating to the Obligations or provision being made for
payment of the Obligations prior to maturity. The Servicer, the Issuer, the
Trustee and the Trust Collateral Agent shall make all payments of Premium
to be made by them by wire transfer to an account designated from time to
time by the Insurer by written notice to the Servicer, the Issuer, the
Trustee or the Trust Collateral Agent. Although the Premium is fully earned
by the Insurer as of the Date of Issuance, the Premium shall be payable in
periodic installments as provided in the Premium Letter. The Premium for
each period shall be calculated on 30/360 day basis.
Section 3.03. REIMBURSEMENT AND ADDITIONAL PAYMENT OBLIGATION.
(a) In accordance with the priorities established in Section 5.7 of
the Sale and Servicing Agreement, the Insurer shall be entitled to (i)
reimbursement for any payment made by the Insurer under the Policies, which
reimbursement shall be due and payable on the date that any amount is to be
paid pursuant to a Payment Notice (as defined in the Policies), in an
amount equal to the amount to be so paid and all amounts previously paid
that remain unreimbursed, together with interest on any and all amounts
remaining unreimbursed (to the extent permitted by law, if in respect of
any unreimbursed amounts representing interest) from the date such amounts
became due until paid in full (after as well as before judgment), at a rate
of interest equal to the Late Payment Rate, (ii) payment or reimbursement
of any other amounts owed to the Insurer hereunder together with interest
thereon at a rate equal to the Late Payment Rate, (iii) reimbursement for
any payments made by the Insurer with respect to the fees and expenses of a
replacement servicer or with respect to any transition costs relating to
the transfer of servicing from the Servicer to the replacement servicer
together with interest thereon at a rate equal to
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the Late Payment Rate and (iv) all costs and expenses of the Insurer in
connection with any action, proceeding or investigation affecting the
Issuer, or the Collateral or the rights or obligations of the Insurer
hereunder or under the Policies or the Transaction Documents, including
(without limitation) any judgment or settlement entered into affecting the
Insurer or the Insurer's interests, together with interest thereon at a
rate equal to the Late Payment Rate.
(b) Notwithstanding anything in Section 3.03(a) to the contrary, the
Servicer, the Custodian and the Seller agree to reimburse the Insurer as
follows: (i) from the Seller, for payments made under the Policies arising
as a result of the Seller's failure to repurchase any Receivable required
to be repurchased pursuant to Section 3.2 of the Sale and Servicing
Agreement, together with interest on any and all amounts remaining
unreimbursed (to the extent permitted by law, if in respect of any
unreimbursed amounts representing interest) from the date such amounts
became due until paid in full (after as well as before judgment), at a rate
of interest equal to the Late Payment Rate, and (ii) from AmeriCredit, for
payments made under the Policies, arising as a result of (A) the Servicer's
failure to deposit into the Collection Account any amount required to be so
deposited pursuant to the Indenture, the Sale and Servicing Agreement or
any other Transaction Document, (B) Servicer's failure to repurchase any
Receivable required to be repurchased pursuant to Section 4.7 of the Sale
and Servicing Agreement or (C) for payments made under the Policies arising
as a result of AmeriCredit's failure to repurchase any Receivable required
to be repurchased pursuant to Section 5.1 of the Purchase Agreement, in
each case together with interest on any and all amounts remaining
unreimbursed (to the extent permitted by law, if in respect to any
unreimbursed amounts representing interest) from the date such amounts
became due until paid in full (after, as well as, before judgment), at a
rate of interest equal to the Late Payment Rate.
(c) AmeriCredit, the Servicer and the Seller agree to pay to the
Insurer as follows: any and all charges, fees, costs and expenses that the
Insurer may reasonably pay or incur, including, but not limited to,
attorneys' and accountants' fees and expenses, in connection with (i) any
accounts established to facilitate payments under the Policies to the
extent the Insurer has not been immediately reimbursed on the date that any
amount is paid by the Insurer under the Policies, (ii) the enforcement,
defense or preservation of any rights in respect of any of the Transaction
Documents, including defending, monitoring or participating in any
litigation or proceeding (including any insolvency or bankruptcy proceeding
in respect of any Transaction participant or any affiliate thereof)
relating to any of the Transaction Documents, any party to any of the
Transaction Documents, in its capacity as such a party, or the Transaction,
(iii) any amendment, consent, waiver or other action with respect to, or
related to, any Transaction Document, whether or not executed or completed,
(iv) the foreclosure against, sale or other disposition of any collateral
securing any obligations under any of the Transaction Documents, or pursuit
of any other remedies under any of the Transaction Documents, to the extent
such costs and expenses are not recovered from such foreclosure, sale or
other disposition, (v) any review or approval by the Insurer in connection
with the delivery of any additional or substitute collateral under any of
the Transaction Documents if the consent of the Insurer is expressly
required under the Transaction Documents in connection therewith, (vi) any
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action taken by the Insurer to cure an event of default (other than an
Insurer Default) (or to mitigate the effect of an event of default) under
any of the Transaction Documents, or (iv) preparation of bound volumes of
the Transaction documents; costs and expenses shall include a reasonable
allocation of compensation and overhead attributable to the time of
employees of the Insurer spent in connection with the actions described in
clause (ii) above, and the Insurer reserves the right to charge a
reasonable fee as a condition to executing any waiver or consent proposed
in respect of any of the Transaction Documents. Such amounts shall be
payable within 60 days of the receipt by AmeriCredit, the Servicer, the
Seller or the Custodian of an invoice therefore.
(d) AmeriCredit, the Servicer, the Seller and the Custodian agree to
pay to the Insurer as follows: interest on any and all amounts described in
subsections (b), (c), (e) and (f) of this Section 3.03 from the date
payable or paid by such party until payment thereof in full, and interest
on any and all amounts described in Section 3.02 hereof from the date due
until payment thereof in full, in each case payable to the Insurer at the
Late Payment Rate per annum.
(e) AmeriCredit, the Servicer, the Seller, the Custodian and the
Issuer agree to pay to the Insurer as follows: any payments made by the
Insurer on behalf of, or advanced to the Servicer, the Custodian, the
Collateral Agent, the Trustee, the Trust Collateral Agent, the Backup
Servicer, the Seller or the Issuer, respectively, including, without
limitation, any amounts payable by the Servicer, the Seller or the Issuer
or otherwise pursuant to the Obligations or any other Transaction
Documents, including, without limitation, payments, if any, made by the
Insurer with respect to retitling of the title documents relating to the
Financed Vehicles pursuant to Section 4.5 of the Sale and Servicing
Agreement.
(f) Following termination of the Indenture pursuant to Section 4.1
thereof, the Servicer agrees to reimburse the Insurer for any Insured
Payments required to be made pursuant to the Policies subsequent to the
date of such termination.
All such amounts are to be immediately due and payable without demand
in full, except as otherwise provided herein, without any requirement on
the part of the Insurer to seek reimbursement from any other sources of
indemnity thereof or to allocate expenses to other transactions benefiting
therefrom.
Section 3.04. INDEMNIFICATION; LIMITATION OF LIABILITY.
(a) In addition to any and all rights of indemnification or any other
rights of the Insurer pursuant hereto, the other Transaction Documents or
under law or in equity, AmeriCredit, the Custodian, the Seller and the
Servicer and any successors thereto, jointly and severally, agree to pay,
and to protect, indemnify and save harmless, the Insurer and its officers,
directors, shareholders, employees, agents and each person, if any, who
controls the Insurer within the meaning of either Section 15 of the
Securities Act or Section 20 of the Securities Exchange Act from and
against any and all claims, Losses, liabilities (including penalties),
actions, suits, judgments, demands, damages, costs or reasonable expenses
(including, without limitation, reasonable fees and expenses
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of attorneys, consultants and auditors and reasonable costs of
investigations) or obligations whatsoever paid by the Insurer (herein
collectively referred to as "Liabilities") of any nature arising out of or
relating to the transactions contemplated by the Transaction Documents by
reason of:
(i) any untrue statement or alleged untrue statement of a
material fact contained in the Offering Document or in any amendment
or supplement thereto or in any preliminary offering document, or
arising out of or based upon any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, except insofar as such
Liabilities arise out of or are based upon any such untrue statement
or omission or allegation thereof based upon information set forth in
the Offering Document under the caption "THE POLICY" and "THE
INSURER," or in the financial statements of the Insurer, including any
information in any amendment or supplement to the Offering Document
furnished by the Insurer in writing expressly for use therein that
amends or supplements such information (all such information being
referred to herein as "Insurer Information");
(ii) to the extent not covered by clause (i) above, any act or
omission of AmeriCredit, the Seller, the Servicer or the Custodian, or
the allegation thereof, in connection with the offering, issuance,
sale or delivery of the Obligations or relating to the Transaction
Documents;
(iii) the misfeasance or malfeasance of, or negligence or theft
committed by, any director, officer, employee or agent of AmeriCredit,
the Servicer, the Custodian, the Seller or the Issuer;
(iv) the violation by AmeriCredit, the Custodian, the Issuer, the
Seller or the Servicer of any federal or state securities, banking or
antitrust laws, rules or regulations in connection with the issuance,
offer and sale of the Obligations or the transactions contemplated by
the Transaction Documents;
(v) the violation by AmeriCredit, the Issuer, the Custodian, the
Seller or the Servicer of any federal or state laws, rules or
regulations relating to the Transaction or the origination of the
Receivables, including, without limitation, any consumer protection,
lending and disclosure laws and any laws with respect to the maximum
amount of interest permitted to be received on account of any loan of
money or with respect to the Receivables;
(vi) the breach by AmeriCredit, the Custodian, the Seller or the
Servicer of any of its obligations under this Insurance Agreement or
any of the other Transaction Documents; and
(vii) the breach by AmeriCredit, the Servicer, the Custodian or
the Seller of any representation or warranty on the part of
AmeriCredit, the Servicer, the Seller or the Custodian contained in
the Transaction Documents or in any certificate or report furnished or
delivered to the Insurer thereunder.
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This indemnity provision shall survive the termination of this
Insurance Agreement and shall survive until the statute of limitations has
run on any causes of action which arise from one of these reasons and until
all suits filed as a result thereof have been finally concluded.
(b) AmeriCredit and the Seller agree to indemnify the Issuer and the
Insurer for any and all Liabilities that have been incurred due to any
claim, counterclaim, rescission, setoff or defense asserted by an Obligor
under any Receivable subject to the Federal Trade Commission regulations
provided in 16 C.F.R. Part 433.
(c) AmeriCredit, the Servicer and the Seller agree to indemnify and
hold harmless the Issuer and the Insurer for any and all Liabilities
incurred due to (i) any agreement or acquiescence by the Servicer and the
Seller to any reduction, rebate, rescheduling or delay of any payments due
and owing by any Obligor under any Receivable based upon an agreement on
the part of the Servicer and the Seller to make or rebate any future
payments on such Receivable, (ii) any agreement on the part of the Servicer
and the Seller to make or rebate any future payments on any Receivable or
(iii) any settlement of any judicial proceeding or any claim, action or
proceeding of any regulatory body.
(d) Any party which proposes to assert the right to be indemnified
under this Section 3.04 will, promptly after receipt of notice of
commencement of any action, suit or proceeding against such party in
respect of which a claim is to be made against AmeriCredit, the Servicer,
the Seller or the Custodian under this Section 3.04, notify AmeriCredit,
the Servicer, the Seller or the Custodian of the commencement of such
action, suit or proceeding, enclosing a copy of all papers served. In case
any action, suit or proceeding shall be brought against any indemnified
party and it shall notify AmeriCredit, the Servicer, the Seller or the
Custodian of the commencement thereof, AmeriCredit, the Servicer, the
Custodian or the Seller shall be entitled to participate in, and, to the
extent that it shall wish, to assume the defense thereof, with counsel
satisfactory to such indemnified party, and after notice from AmeriCredit,
the Servicer, the Seller or the Custodian to such indemnified party of its
election so to assume the defense thereof, AmeriCredit, the Servicer, the
Seller or the Custodian shall not be liable to such indemnified party for
any legal or other expenses other than reasonable costs of investigation
subsequently incurred by such indemnified party in connection with the
defense thereof. The indemnified party shall have the right to employ its
counsel in any such action the defense of which is assumed by AmeriCredit,
the Servicer, the Seller or the Custodian in accordance with the terms of
this subsection (d), but the fees and expenses of such counsel shall be at
the expense of such indemnified party unless the employment of counsel by
such party has been authorized by AmeriCredit. AmeriCredit, the Servicer,
the Seller or the Custodian shall not be liable for any settlement of any
action or claim effected without its consent.
(e) In addition to any and all rights of indemnification or any other
rights of the Insurer pursuant hereto or under law or equity, the Trustee,
the Trust Collateral Agent, the Collateral Agent and the Backup Servicer
agree to pay, and to protect, indemnify and save harmless, the Insurer and
its officers, directors, shareholders,
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employees, agents, including each person, if any, who controls the Insurer
within the meaning of either Section 15 of the Securities Act as amended,
or Section 20 of the Securities and Exchange Act, as amended, from and
against any and all claims, losses, liabilities (including penalties),
actions, suits, judgments, demands, damages, costs or reasonable expenses
(including, without limitation, reasonable fees and expenses of attorneys,
consultants and auditors and reasonable costs of investigations) or
obligations whatsoever of any nature arising out of the material breach by
the Trustee, the Trust Collateral Agent, the Collateral Agent and the
Backup Servicer of any of their obligations under this Insurance Agreement
or under the Indenture or the Sale and Servicing Agreement. This indemnity
provision shall survive the termination of this Insurance Agreement and
shall survive until the statute of limitations has run on any causes of
action which arise from one of these reasons and until all suits filed as a
result thereof have been finally concluded.
Section 3.05. PAYMENT PROCEDURE. In the event of any payment by the
Insurer, AmeriCredit, the Trustee, the Trust Collateral Agent, the Collateral
Agent, the Backup Servicer, the Seller, the Servicer and the Custodian agree to
accept the voucher or other evidence of payment as prima facie evidence of the
propriety thereof and the liability therefor to the Insurer. All payments to be
made to the Insurer under this Insurance Agreement shall be made to the Insurer
in lawful currency of the United States of America in immediately available
funds to the account number provided in the Premium Letter before 1:00 p.m. (New
York, New York time) on the date when due or as the Insurer shall otherwise
direct by written notice to the other parties hereto. In the event that the date
of any payment to the Insurer or the expiration of any time period hereunder
occurs on a day which is not a Business Day, then such payment or expiration of
time period shall be made or occur on the next succeeding Business Day with the
same force and effect as if such payment was made or time period expired on the
scheduled date of payment or expiration date. Payments to be made to the Insurer
under this Insurance Agreement shall bear interest at the Late Payment Rate from
the date when due to the date paid.
ARTICLE IV
FURTHER AGREEMENTS
Section 4.01. EFFECTIVE DATE; TERM OF THE INSURANCE AGREEMENT. This
Insurance Agreement shall take effect on the Date of Issuance and shall remain
in effect until the later of (a) such time as the Insurer is no longer subject
to a claim under the Policies and the Policies shall have been surrendered to
the Insurer for cancellation and (b) all amounts payable to the Insurer by the
Servicer, the Trustee, the Collateral Agent, the Trust Collateral Agent, the
Backup Servicer, the Seller or the Custodian or from any other source under the
Transaction Documents and all amounts payable under the Obligations have been
paid in full; provided, however, that the provisions of Sections 3.02, 3.03,
3.04, 4.03 and 4.06 hereof shall survive any termination of this Insurance
Agreement.
Section 4.02. FURTHER ASSURANCES AND CORRECTIVE INSTRUMENTS.
(a) Excepting at such times as an Insurer Default shall exist and be
continuing, none of the Servicer, the Trustee, the Collateral Agent, the
Trust Collateral
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Agent, the Backup Servicer, the Seller or the Custodian shall grant any
waiver of rights under any of the Transaction Documents to which any of
them is a party without the prior written consent of the Insurer (which
consent shall not be unreasonably withheld with respect to amendments or
modifications which only affect the Trustee, the Trust Collateral Agent,
the Collateral Agent and/or the Backup Servicer), and any such waiver
without the prior written consent of the Insurer shall be null and void and
of no force or effect.
(b) To the extent permitted by law, the Servicer, the Seller, the
Issuer or the Custodian agree that they will, upon the reasonable request
of the Insurer, from time to time, execute, acknowledge and deliver, or
cause to be executed, acknowledged and delivered within 10 days of such
request, such amendments hereto and such further instruments and take such
further action as may be required in the Insurer's reasonable judgment to
effectuate the intention of or facilitate the performance of this Insurance
Agreement or the other Transaction Documents.
Section 4.03. OBLIGATIONS ABSOLUTE.
(a) The obligations of AmeriCredit, the Servicer, the Seller, the
Issuer or the Custodian hereunder shall be absolute and unconditional and
shall be paid or performed strictly in accordance with this Insurance
Agreement under all circumstances irrespective of:
(i) any lack of validity or enforceability of, or any amendment
or other modifications of, or waiver with respect to any of the
Transaction Documents, the Obligations or the Policies;
(ii) any exchange or release of any other obligations hereunder;
(iii) the existence of any claim, setoff, defense, reduction,
abatement or other right that AmeriCredit, the Servicer, the Trustee,
the Collateral Agent, the Trust Collateral Agent, the Backup Servicer,
the Seller, the Issuer, the Custodian or the Owner Trustee may have at
any time against the Insurer or any other Person;
(iv) any document presented in connection with the Policies
proving to be forged, fraudulent, invalid or insufficient in any
respect or any statement therein being untrue or inaccurate in any
respect;
(v) any payment by the Insurer under the Policies against
presentation of a certificate or other document that does not strictly
comply with terms of the Policies;
(vi) any failure of AmeriCredit, the Servicer, the Trustee, the
Collateral Agent, the Trust Collateral Agent, the Backup Servicer, the
Seller, the Issuer, or the Custodian to receive the proceeds from the
sale of the Obligations;
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(vii) any breach by AmeriCredit, the Servicer, the Trustee, the
Collateral Agent, the Trust Collateral Agent, the Backup Servicer, the
Seller, the Issuer, the Custodian or the Owner Trustee of any
representation, warranty or covenant contained in any of the
Transaction Documents;
(viii) any other circumstances, other than payment in full, which
might otherwise constitute a defense available to, or discharge of
AmeriCredit, the Servicer, the Trustee, the Collateral Agent, the
Trust Collateral Agent, the Backup Servicer, the Seller, the Issuer,
the Custodian or the Owner Trustee in respect of any Transaction
Document;
(ix) the bankruptcy or insolvency of the Insurer or any other
party;
(x) any default or alleged default of the Insurer under the
Policies; or
(xi) the inaccuracy or alleged inaccuracy of any payment upon
which a claim under the Policies is based.
(b) AmeriCredit, the Servicer, the Seller, the Issuer and the
Custodian and any and all others who are now or may become liable for all
or part of the obligations of AmeriCredit, the Servicer, the Seller, the
Issuer, the Custodian under this Insurance Agreement agree to be bound by
this Insurance Agreement and (i) to the extent permitted by law, waive and
renounce any and all redemption and exemption rights and the benefit of all
valuation and appraisement privileges against the indebtedness and
obligations evidenced by any Transaction Document or by any extension or
renewal thereof; (ii) waive presentment and demand for payment, notices of
nonpayment and of dishonor, protest of dishonor and notice of protest;
(iii) waive all notices in connection with the delivery and acceptance
hereof and all other notices in connection with the performance, default or
enforcement of any payment hereunder, except as required by the Transaction
Documents; (iv) waive all rights of abatement, diminution, postponement or
deduction, or any defense other than payment, or any right of setoff or
recoupment arising out of any breach under any of the Transaction Documents
by any party thereto or any beneficiary thereof, or out of any obligation
at any time owing to the Servicer, the Trustee, the Collateral Agent, the
Trust Collateral Agent, the Backup Servicer, the Seller, the Issuer or the
Custodian; (v) agree that its liabilities hereunder shall, except as
otherwise expressly provided in this Section 4.03, be unconditional and
without regard to any setoff, counterclaim or the liability of any other
Person for the payment hereof; (vi) agree that any consent, waiver or
forbearance hereunder with respect to an event shall operate only for such
event and not for any subsequent event; (vii) consent to any and all
extensions of time that may be granted by the Insurer with respect to any
payment hereunder or other provisions hereof and to the release of any
security at any time given for any payment hereunder, or any part thereof,
with or without substitution, and to the release of any Person or entity
liable for any such payment; and (viii) consent to the addition of any and
all other makers, endorsers, guarantors and other obligors for any payment
hereunder, and to the acceptance of any and all other security for any
payment hereunder, and agree that the addition of any such obligors or
security shall not affect the liability of the parties hereto for any
payment hereunder.
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(c) Nothing herein shall be construed as prohibiting the Servicer, the
Trustee, the Collateral Agent, the Trust Collateral Agent, the Backup
Servicer, the Seller, the Issuer and the Custodian from pursuing any rights
or remedies it may have against any other Person in a separate legal
proceeding.
Section 4.04. ASSIGNMENTS; REINSURANCE; THIRD-PARTY RIGHTS.
(a) This Insurance Agreement shall be a continuing obligation of the
parties hereto and shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and permitted assigns. None
of AmeriCredit, the Servicer, the Trustee, the Collateral Agent, the Trust
Collateral Agent, the Backup Servicer, the Seller, the Issuer or the
Custodian may assign its rights under this Insurance Agreement, or delegate
any of its duties hereunder, without the prior written consent of the
Insurer, except to a successor or assign that is permitted by the Indenture
or in the case of AmeriCredit as Servicer to AmeriCredit Financial Services
of Canada Ltd. as permitted in Section 8.6 of the Sale and Servicing
Agreement. Any assignment made in violation of this Insurance Agreement
shall be null and void.
(b) The Insurer shall have the right to give participations in its
rights under this Insurance Agreement and to enter into contracts of
reinsurance with respect to the Policies upon such terms and conditions as
the Insurer may in its discretion determine; provided, however, that no
such participation or reinsurance agreement or arrangement shall relieve
the Insurer of any of its obligations hereunder or under the Policies.
(c) In addition, the Insurer shall be entitled to assign or pledge to
any bank or other lender providing liquidity or credit with respect to the
Transaction or the obligations of the Insurer in connection therewith any
rights of the Insurer under the Transaction Documents or with respect to
any real or personal property or other interests pledged to the Insurer, or
in which the Insurer has a security interest, in connection with the
Transaction.
(d) Except as provided herein with respect to participants and
reinsurers, nothing in this Insurance Agreement shall confer any right,
remedy or claim, express or implied, upon any Person, including,
particularly, any Owner, other than the Insurer against AmeriCredit, the
Servicer, the Trustee, the Collateral Agent, the Trust Collateral Agent,
the Backup Servicer, the Seller, the Issuer or the Custodian, and all the
terms, covenants, conditions, promises and agreements contained herein
shall be for the sole and exclusive benefit of the parties hereto and their
successors and permitted assigns. Neither the Trustee nor any Owner shall
have any right to payment from any Premiums paid or payable hereunder or
under the Sale and Servicing Agreement or from any other amounts paid by
AmeriCredit, the Servicer, the Trustee, the Collateral Agent, the Trust
Collateral Agent, the Backup Servicer, the Seller, the Issuer or the
Custodian pursuant to Section 3.02, 3.03 or 3.04 hereof.
(e) The Servicer, the Trustee, the Collateral Agent, the Trust
Collateral Agent, the Backup Servicer, the Seller, the Issuer and the
Custodian agree that the Insurer shall have all rights of a third-party
beneficiary in respect of the Indenture and each other
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Transaction Document to which it is not a signing party and hereby
incorporate and restate their representations, warranties and covenants as
set forth therein for the benefit of the Insurer.
Section 4.05. LIABILITY OF THE INSURER. Neither the Insurer nor any of its
officers, directors or employees shall be liable or responsible for (a) the use
that may be made of the Policies by the Trustee or the Trust Collateral Agent or
a Swap Provider or for any acts or omissions of the Trustee or the Trust
Collateral Agent or a Swap Provider in connection therewith, (b) the validity,
sufficiency, accuracy or genuineness of documents delivered to the Insurer in
connection with any claim under the Policies, or of any signatures thereon, even
if such documents or signatures should in fact prove to be in any or all
respects invalid, insufficient, fraudulent or forged (unless the Insurer shall
have actual knowledge thereof) or (c) any acts or omissions to act of
AmeriCredit, the Seller, the Servicer, the Issuer, the Trustee, the Trust
Collateral Agent, the Collateral Agent, the Backup Servicer, the Owner Trustee
or any other person in connection with the Collateral. In furtherance and not in
limitation of the foregoing, the Insurer (or its Fiscal Agent) may accept
documents that appear on their face to be in order, without responsibility for
further investigation.
Section 4.06. PARTIES WILL NOT INSTITUTE INSOLVENCY PROCEEDINGS. So long as
this Agreement is in effect, and for one year following its termination, none of
the parties hereto will file any involuntary petition or otherwise institute any
bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding or
other proceedings under any federal or state bankruptcy or similar law against
the Issuer or the Seller.
Section 4.07. TRUSTEE, CUSTODIAN, TRUST COLLATERAL AGENT, COLLATERAL AGENT,
BACKUP SERVICER, SELLER, ISSUER AND SERVICER TO JOIN IN ENFORCEMENT ACTION. To
the extent necessary to enforce any right of the Insurer in or remedy of the
Insurer under any Receivable, the Trust Collateral Agent, the Collateral Agent,
the Trustee, Custodian, Backup Servicer, Issuer, Seller and Servicer agree to
join in any action initiated by the Trust or the Insurer for the protection of
such right or exercise of such remedy.
Section 4.08. REPLACEMENT SWAP AGREEMENT. In the event that a Swap
Agreement is terminated prior to its scheduled expiration in accordance with the
terms of the Swap Agreement, the Issuer shall at the request of the Insurer
enter into a replacement swap agreement (the "Replacement Swap Agreement") in
form and substance satisfactory to the Insurer with a replacement Swap Provider
acceptable to the Insurer on the same terms as the Swap Agreement executed on
the Closing Date mutatis mutandis, or with such amendments to the terms as have
been approved by S&P, Moody's and the Insurer.
Section 4.09. SUBROGATION. To the extent of any payments under the
Policies, the Insurer shall be fully subrogated to any remedies against the
Custodian, the Seller or the Servicer or in respect of the Receivables available
to the Trustee or the Trust Collateral Agent or a Swap Provider under the Swap
Agreement, the Indenture and Sale and Servicing Agreement. The Trustee and the
Trust Collateral Agent acknowledge such subrogation and, further, agree to
execute such instruments prepared by the Insurer and to take such reasonable
actions as requested by the Insurer as are necessary to evidence such
subrogation and to perfect the rights
41
of the Insurer to receive any moneys paid or payable under the Indenture or Sale
and Servicing Agreement.
Section 4.10. INSURER'S RIGHTS REGARDING ACTIONS, PROCEEDINGS OR
INVESTIGATIONS. Until the Obligations have been paid in full, all amounts owed
to the Insurer have been paid in full, this Insurance Agreement has terminated
and the Policies have been returned to the Insurer for cancellation, the
following provisions shall apply, it being expressly understood that none of the
following costs shall be borne by the Trustee:
(a) Notwithstanding anything contained herein or in the other
Transaction Documents to the contrary, the Insurer shall have the right to
participate in, to direct the enforcement or defense of, and, at the
Insurer's sole option, to institute or assume the defense of, any action,
proceeding or investigation that could adversely affect the Issuer or the
Collateral or the rights or obligations of the Insurer hereunder or under
the Policies or the Transaction Documents, including (without limitation)
any insolvency or bankruptcy proceeding in respect of AmeriCredit, the
Seller, the Issuer or any affiliate thereof. Following notice to the
Trustee, the Trust Collateral Agent and the Owner Trustee the Insurer shall
have the exclusive right to determine, in its sole discretion, the actions
necessary to preserve and protect the Collateral. All costs and expenses of
the Insurer in connection with such action, proceeding or investigation,
including (without limitation) any judgment or settlement entered into
affecting the Insurer or the Insurer's interests, shall be included in
amounts reimbursable to the Insurer under Section 5.7 of the Sale and
Servicing Agreement.
(b) In connection with any action, proceeding or investigation that
could adversely affect the Collateral or the Issuer or the rights or
obligations of the Insurer hereunder or under the Policies or the
Transaction Documents, including (without limitation) any insolvency or
bankruptcy proceeding in respect of AmeriCredit, the Seller, the Issuer or
any affiliate thereof, the Trustee, the Trust Collateral Agent and the
Issuer hereby agree to cooperate with, and to take such action as
reasonably directed by, the Insurer, including (without limitation)
entering into such agreements and settlements as the Insurer shall direct,
in its sole discretion without the consent of the Noteholders. The
Trustee's and the Trust's reasonable out-of-pocket costs and expenses
(including attorneys' fees and expenses) with respect to any such action
shall be reimbursed pursuant to Section 5.7 of the Sale and Servicing
Agreement.
(c) The Issuer, the Trust Collateral Agent and the Trustee hereby
agree to provide to the Insurer prompt written notice of any action,
proceeding or investigation that names the Issuer, the Owner Trustee, the
Trust Collateral Agent or the Trustee on behalf of the Secured Parties as a
party or that involves the Issuer or the Collateral or the rights or
obligations of the Insurer hereunder or under the Policies or the
Transaction Documents, including (without limitation) any insolvency or
bankruptcy proceeding in respect of AmeriCredit, the Seller, the Issuer or
any affiliate thereof of which it has actual knowledge.
(d) Notwithstanding anything contained herein or in any of the other
Transaction Documents to the contrary, none of the Issuer, the Trustee nor
the Trust
42
Collateral Agent shall, without the Insurer's prior written consent, with
such consent not to be unreasonably withheld, or unless directed by the
Insurer, undertake or join any litigation or agree to any settlement of any
action, proceeding or investigation affecting the Collateral or the Issuer
or the rights or obligations of the Insurer hereunder or under the Policies
or the Transaction Documents.
(e) The Trustee agrees that the Insurer shall have such rights as set
forth in this Section, which are in addition to any rights of the Insurer
pursuant to the other provisions of the Transaction Documents, that the
rights set forth in this Section may be exercised by the Insurer, in its
sole discretion, without the need for the consent or approval of the
Issuer, the Trust Collateral Agent, or the Trustee, notwithstanding any
other provision contained herein or in any of the other Transaction
Documents, and that nothing contained in this Section shall be deemed to be
an obligation of the Insurer to exercise any of the rights provided for
herein.
ARTICLE V
DEFAULTS; REMEDIES
Section 5.01. DEFAULTS. The occurrence of any of the following events shall
constitute an Insurance Agreement Event of Default hereunder:
(a) any representation or warranty made by the Issuer, AmeriCredit,
the Servicer, the Trust Collateral Agent, the Collateral Agent, the
Trustee, the Backup Servicer, the Seller, or the Custodian hereunder or
under the Transaction Documents, or in any certificate furnished hereunder
or under the Transaction Documents, shall prove to be untrue or incomplete
in any material respect and such untrue representation or warranty is not
cured within any applicable grace period contained in the applicable
Transaction Document;
(b) (i) AmeriCredit, the Servicer, the Trustee, the Trust Collateral
Agent, the Collateral Agent, the Backup Servicer, the Seller, the Issuer or
the Custodian shall fail to pay when due any amount payable by AmeriCredit,
the Servicer, the Trustee, the Trust Collateral Agent, the Collateral
Agent, the Backup Servicer, the Seller or the Custodian hereunder or under
any Transaction Document and such failure continues for the length of any
cure period contained in the related Transaction Document, (ii)
AmeriCredit, the Servicer, the Trustee, the Trust Collateral Agent, the
Collateral Agent, the Backup Servicer, the Seller the Issuer, the Custodian
or the Owner Trustee shall have asserted that any of the Transaction
Documents to which it is a party is not valid and binding on the parties
thereto, or (iii) a legislative body has enacted any law that declares or a
court of competent jurisdiction shall find or rule that any Transaction
Document is not valid and binding on the Servicer, the Trustee, the Trust
Collateral Agent, the Collateral Agent, the Backup Servicer, the Seller,
the Issuer or the Custodian;
(c) the occurrence and continuance of a "Event of Default" under the
Indenture (as defined therein);
43
(d) any failure on the part of the Servicer, the Trustee, the Trust
Collateral Agent, the Collateral Agent, the Backup Servicer, the Seller,
the Issuer or the Custodian duly to observe or perform in any material
respect any other of the covenants or agreements on the part of the
Servicer, the Trustee, the Trust Collateral Agent, the Collateral Agent,
the Backup Servicer, the Seller, the Issuer or the Custodian contained in
this Insurance Agreement or in any other Transaction Document which
continues unremedied for a period of 30 days with respect to this Insurance
Agreement, or, with respect to any other Transaction Document, beyond any
cure period provided for therein, after the date on which written notice of
such failure, requiring the same to be remedied, shall have been given to
the Servicer, the Backup Servicer, the Seller, the Issuer or the Custodian
as applicable, by the Insurer (with a copy to the Trustee) or by the
Trustee, the Trust Collateral Agent, or the Collateral Agent (with a copy
to the Insurer);
(e) decree or order of a court or agency or supervisory authority
having jurisdiction in the premises in an involuntary case under any
present or future federal or state bankruptcy, insolvency or similar law or
the appointment of a conservator or receiver or liquidator or other similar
official in any insolvency, readjustment of debt, marshalling of assets and
liabilities or similar proceedings, or for the winding-up or liquidation of
its affairs, shall have been entered against the Servicer, the Trustee, the
Trust Collateral Agent, the Collateral Agent, the Backup Servicer, the
Seller, the Issuer or the Custodian and such decree or order shall have
remained in force undischarged or unstayed for a period of 60 consecutive
days;
(f) the Servicer, the Trustee, the Trust Collateral Agent, the
Collateral Agent, the Backup Servicer, the Seller, the Issuer or the
Custodian shall consent to the appointment of a conservator or receiver or
liquidator or other similar official in any insolvency, readjustment of
debt, marshalling of assets and liabilities or similar proceedings of or
relating to the Servicer, the Trustee, the Trust Collateral Agent, the
Collateral Agent, the Backup Servicer, the Seller, the Issuer or the
Custodian or of or relating to all or substantially all of the property of
either;
(g) the Servicer, the Trustee, the Trust Collateral Agent, the
Collateral Agent, the Backup Servicer, the Seller, the Issuer or the
Custodian shall admit in writing its inability to pay its debts generally
as they become due, file a petition to take advantage of or otherwise
voluntarily commence a case or proceeding under any applicable bankruptcy,
insolvency, reorganization or other similar statute, make an assignment for
the benefit of its creditors or voluntarily suspend payment of its
obligations;
(h) the occurrence and continuance of an "Servicer Termination Event"
under the Sale and Servicing Agreement (as defined therein);
(i) the failure of the Seller, the Issuer or AmeriCredit to comply
with, or maintain the accuracy of, the Opinion Facts and Assumptions;
(j) the occurrence of a Level 2 Trigger Event (as defined in the
Spread Account Agreement);
44
(k) AmeriCredit assigns any of its rights or obligations under any of
the Transaction Documents without the prior written consent of the Insurer;
(l) the Tangible Net Worth of AmeriCredit Corp. shall be less than the
sum of (a) $1,550,000,000 plus (b) 75% of the cumulative positive net
income (without deduction for negative net income) of AmeriCredit Corp. for
each fiscal quarter having been completed since June 30, 2006, as reported
in each annual report on Form 10-K and periodic report on Form 10-Q filed
by AmeriCredit Corp. with the Commission plus (c) 75% of the net proceeds
of any equity issued by AmeriCredit Corp. since June 30, 2006 (excluding
any equity being issued pursuant to equity incentive plans for employees
and board members) minus (d) the lesser of (i) $200,000,000 and (ii) the
purchase price of all common stock of AmeriCredit Corp. repurchased after
September 30, 2006;
(m) The average of the Monthly Extension Rates calculated with respect
to three consecutive calendar month exceeds 4% and the Servicer fails to
purchase Receivables within 30 days in accordance with Section 4.2(c) of
the Sale and Servicing Agreement;
(n) the Insurer makes a payment under either of the Policies;
(o) the Trust Collateral Agent ceases to have a first priority
perfected security interest in the Collateral under the Indenture; or
(p) Any Event of Default or Termination Event (as defined in the Swap
Agreement) relating to the Swap Provider occurs under a Swap Agreement, and
a Replacement Swap Agreement acceptable to the Insurer is not entered into
within 40 days of the Early Termination Date (as defined in the Swap
Agreement) provided, however, that, the occurrence of the Insurance
Agreement Event of Default specified in this clause (p) shall not result in
a Servicer Termination Event under Section 9.1(g) of the Sale and Servicing
Agreement.
Section 5.02. REMEDIES; NO REMEDY EXCLUSIVE.
(a) Upon the occurrence of an Insurance Agreement Event of Default,
the Insurer may exercise any one or more of the rights and remedies set
forth below:
(i) exercise any rights and remedies under the Transaction
Documents in accordance with the terms of the Transaction Documents or
direct the Trustee or the Trust Collateral Agent to exercise such
remedies in accordance with the terms of the Transaction Documents; or
(ii) take whatever action at law or in equity as may appear
necessary or desirable in its judgment to collect the amounts then due
under the Transaction Documents or to enforce performance and
observance of any obligation, agreement or covenant of the Servicer,
the Trustee, the Trust Collateral Agent, the Collateral Agent, the
Backup Servicer, the Seller, the Issuer or the Custodian under the
Transaction Documents.
45
(b) Unless otherwise expressly provided, no remedy herein conferred
upon or reserved is intended to be exclusive of any other available remedy,
but each remedy shall be cumulative and shall be in addition to other
remedies given under the Transaction Documents or existing at law or in
equity. No delay or omission to exercise any right or power accruing under
the Transaction Documents upon the happening of any event set forth in
Section 5.01 hereof shall impair any such right or power or shall be
construed to be a waiver thereof, but any such right and power may be
exercised from time to time and as often as may be deemed expedient. In
order to entitle the Insurer to exercise any remedy reserved to the Insurer
in this Article, it shall not be necessary to give any notice other than
such notice as may be required in this Article V.
(c) If any proceeding has been commenced to enforce any right or
remedy under this Insurance Agreement, and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely
to the Insurer, then and in every such case the parties hereto shall,
subject to any determination in such proceeding, be restored to their
respective former positions hereunder, and, thereafter, all rights and
remedies of the Insurer shall continue as though no such proceeding had
been instituted.
Section 5.03. WAIVERS.
(a) No failure by the Insurer to exercise, and no delay by the Insurer
in exercising, any right hereunder shall operate as a waiver thereof. The
exercise by the Insurer of any right hereunder shall not preclude the
exercise of any other right, and the remedies provided herein to the
Insurer are declared in every case to be cumulative and not exclusive of
any remedies provided by law or equity.
(b) The Insurer shall have the right, to be exercised in its complete
discretion, to waive any Insurance Agreement Event of Default hereunder, by
a writing setting forth the terms, conditions and extent of such waiver
signed by the Insurer and delivered to the Servicer, the Trustee, the Trust
Collateral Agent, the Collateral Agent, the Backup Servicer, the Seller,
the Issuer or the Custodian. Any such waiver may only be effected in
writing duly executed by the Insurer, and no other course of conduct shall
constitute a waiver of any provision hereof. 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 Insurance Agreement
Event of Default so waived and not to any other similar event or occurrence
which occurs subsequent to the date of such waiver.
ARTICLE VI
MISCELLANEOUS
Section 6.01. AMENDMENTS, ETC. This Insurance Agreement may be amended,
modified or terminated only by written instrument or written instruments signed
by the parties hereto. The Servicer agrees to promptly provide a copy of any
amendment to this Insurance Agreement to the Collateral Agent, S&P and Moody's.
No act or course of dealing shall be deemed to constitute an amendment,
modification or termination hereof.
46
Section 6.02. NOTICES. All demands, notices and other communications to be
given hereunder shall be in writing (except as otherwise specifically provided
herein) and shall be mailed by registered mail or personally delivered or
telecopied to the recipient as follows:
(a) To the Insurer:
XL Capital Assurance Inc.
1221 Avenue of the Americas
New York, New York 10020-1001
Re: Policy Nos. CA03541A/CA03541B
Attention: Surveillance
Telephone: (212) 478-3400
Facsimile: (212) 478-3597
E-mail: XLCA Surveillance@xlgroup.com
(in each case in which notice or other communication to XL
Capital refers to an Insurance Agreement Event of Default, a
claim on the Policies or with respect to which failure on the
part of the Insurer 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 Surveillance and shall be marked to indicate
"URGENT MATERIAL ENCLOSED.")
(b) To the Seller:
AFS SenSub Corp.
2265B Renaissance Drive
Suite 17
Las Vegas, NV 89119
(c) To the Servicer and the Custodian:
AmeriCredit Financial Services, Inc.
801 Cherry Street
Suite 3900
Fort Worth, Texas 76102
Attention: CFO
Facsimile: (817) 302-7915
Confirmation: (817) 302-7082
(d) To the Collateral Agent, Trust Collateral Agent, the Trustee and
the Backup Servicer:
Wells Fargo Bank, National Association
Sixth Street and Marquette Avenue
MAC N9311-161
47
Minneapolis, Minnesota 55479
Attention: Corporate Trust Office
Facsimile: (612) 667-3464
(e) To the Issuer:
AmeriCredit Automobile Receivables Trust 2007-A-X
c/o Wilmington Trust Company
1100 North Market Street
Wilmington Delaware 19890-001
Attention: Corporate Trust Administration
With a copy to the Servicer at the address set forth above.
A party may specify an additional or different address or addresses by
writing mailed or delivered to the other parties as aforesaid. All such notices
and other communications shall be effective upon receipt.
Section 6.03. SEVERABILITY. In the event that any provision of this
Insurance Agreement shall be held invalid or unenforceable by any court of
competent jurisdiction, the parties hereto agree that such holding shall not
invalidate or render unenforceable any other provision hereof. The parties
hereto further agree that the holding by any court of competent jurisdiction
that any remedy pursued by any party hereto is unavailable or unenforceable
shall not affect in any way the ability of such party to pursue any other remedy
available to it.
Section 6.04. GOVERNING LAW. THIS INSURANCE AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT
REGARD TO CHOICE OF LAW PROVISIONS.
Section 6.05. CONSENT TO JURISDICTION.
(a) The parties hereto hereby irrevocably submit to the jurisdiction
of the United States District Court for the Southern District of New York
and 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 any action, suit or
proceeding brought against it and to or in connection with any of the
Transaction Documents or the transactions contemplated thereunder or for
recognition or enforcement of any judgment, and the parties hereto hereby
irrevocably and unconditionally agree that all claims in respect of any
such action or proceeding may be heard or determined in such New York state
court or, to the extent permitted by law, in such federal court. The
parties hereto agree that a final judgment in any such action, suit or
proceeding shall be conclusive and may be enforced in other jurisdictions
by suit on the judgment or in any other manner provided by law. To the
extent permitted by applicable law, the parties hereto hereby waive and
agree not to assert by way of motion, as a defense or otherwise in any such
suit, action or proceeding, any claim that it is not personally subject to
the jurisdiction of such courts, that the suit,
48
action or proceeding is brought in an inconvenient forum, that the venue of
the suit, action or proceeding is improper or that the related documents or
the subject matter thereof may not be litigated in or by such courts.
(b) To the extent permitted by applicable law, the parties hereto
shall not seek and hereby waive the right to any review of the judgment of
any such court by any court of any other nation or jurisdiction which may
be called upon to grant an enforcement of such judgment.
(c) Except as provided in Section 4.06 herein, nothing contained in
this Insurance Agreement shall limit or affect the Insurer's right to serve
process in any other manner permitted by law or to start legal proceedings
relating to any of the Transaction Documents against any party hereto or
its or their property in the courts of any jurisdiction.
Section 6.06. CONSENT OF THE INSURER. In the event that the consent of the
Insurer is required under any of the Transaction Documents, the determination
whether to grant or withhold such consent shall be made by the Insurer in its
sole discretion without any implied duty towards any other Person.
Section 6.07. COUNTERPARTS. This Insurance Agreement may be executed in
counterparts by the parties hereto, and all such counterparts shall constitute
one and the same instrument.
Section 6.08. HEADINGS. The headings of Articles and Sections and the Table
of Contents contained in this Insurance Agreement are provided for convenience
only. They form no part of this Insurance Agreement and shall not affect its
construction or interpretation. Unless otherwise indicated, all references to
Articles and Sections in this Insurance Agreement refer to the corresponding
Articles and Sections of this Insurance Agreement.
Section 6.09. TRIAL BY JURY WAIVED. Each party hereto hereby waives, to the
fullest extent permitted by law, any right to a trial by jury in respect of any
litigation arising directly or indirectly out of, under or in connection with
any of the Transaction Documents or any of the transactions contemplated
thereunder. Each party hereto (a) certifies that no representative, agent or
attorney of any party hereto has represented, expressly or otherwise, that it
would not, in the event of litigation, seek to enforce the foregoing waiver and
(b) acknowledges that it has been induced to enter into the Transaction
Documents to which it is a party by, among other things, this waiver.
Section 6.10. LIMITED LIABILITY. No recourse under any Transaction Document
shall be had against, and no personal liability shall attach to, any officer,
employee, director, affiliate, trustee or shareholder of any party hereto, as
such, by the enforcement of any assessment or by any legal or equitable
proceeding, by virtue of any statute or otherwise in respect of any of the
Transaction Documents, the Obligations or the Policies, it being expressly
agreed and understood that each Transaction Document is solely a corporate
obligation of each party hereto, and that any and all personal liability, either
at common law or in equity, or by statute or constitution, of every such
officer, employee, director, affiliate or shareholder for breaches by any party
hereto
49
of any obligations under any Transaction Document is hereby expressly waived as
a condition of and in consideration for the execution and delivery of this
Insurance Agreement.
Section 6.11. ENTIRE AGREEMENT. The Transaction Documents and the Policies
set forth the entire agreement between the parties with respect to the subject
matter thereof, and this Insurance Agreement supersedes and replaces any
agreement or understanding that may have existed between the parties prior to
the date hereof in respect of such subject matter.
Section 6.12. NO PARTNERSHIP. Nothing in this Insurance Agreement or any
other agreement entered into in connection with the Transaction shall be deemed
to constitute the Insurer a partner, co-venturer or joint owner of property with
any other entity.
[Remainder of page intentionally blank; signature page follows]
50
IN WITNESS WHEREOF, the parties hereto have executed this Insurance
Agreement, all as of the day and year first above mentioned.
XL CAPITAL ASSURANCE INC.
By: /s/ Catherine R. Lau
------------------------------------
Title: Senior Managing Director
AMERICREDIT FINANCIAL SERVICES, INC.,
Individually, as Custodian and as
Servicer
By: /s/ Susan B. Sheffield
------------------------------------
Title: Senior Vice-President,
Structured Finance
AMERICREDIT AUTOMOBILE RECEIVABLES TRUST
2007-A-X, as Issuer
By: Wilmington Trust Company, not in its
individual capacity but solely as
Owner Trustee
By: /s/ Michele C. Harra
------------------------------------
Title: Financial Services Officer
AFS SENSUB CORP., as Seller
By: /s/ Sheli D. Fitzgerald
------------------------------------
Title: Vice-President, Structured
Finance
AmeriCredit Automobile Receivables Trust 2007-A-X
Insurance Agreement Signature Page
WELLS FARGO BANK, NATIONAL ASSOCIATION,
as Trustee, as Trust Collateral Agent,
as Collateral Agent and as Backup
Servicer
By: /s/ Marianna C. Stershic
------------------------------------
Title: Vice President
AmeriCredit Automobile Receivables Trust 2007-A-X
Insurance Agreement Signature Page