EXHIBIT 10.3
EXECUTION COPY
INSURANCE AND INDEMNITY AGREEMENT
among
FINANCIAL SECURITY ASSURANCE INC.,
AMERICREDIT AUTOMOBILE RECEIVABLES TRUST 2006-A-F,
AMERICREDIT FINANCIAL SERVICES, INC.,
AFS FUNDING TRUST
and
AMERICREDIT CORP.
Dated as of July 12, 2006
$204,000,000 Class A-1 5.5048% Asset Backed Notes, Series 2006-A-F
$394,000,000 Class A-2 5.61% Asset Backed Notes, Series 2006-A-F
$412,000,000 Class A-3 5.56% Asset Backed Notes, Series 2006-A-F
$340,000,000 Class A-4 5.64% Asset Backed Notes, Series 2006-A-F
TABLE OF CONTENTS
PAGE
----
ARTICLE I DEFINITIONS............................................ 1
Section 1.1 Definitions............................................ 1
ARTICLE II REPRESENTATIONS, WARRANTIES AND COVENANTS.............. 2
Section 2.1 Representations and Warranties of the Trust............ 2
Section 2.2 Affirmative Covenants of the Trust..................... 5
Section 2.3 Negative Covenants of the Depositor on Behalf
of the Trust........................................ 9
Section 2.4 [Reserved]............................................. 11
Section 2.5 [Reserved]............................................. 11
Section 2.6 [Reserved]............................................. 11
Section 2.7 Representations and Warranties with Respect to Funding
Trust and the Company............................... 11
Section 2.8 Affirmative Covenants with Respect to the Company and
Funding Trust....................................... 16
Section 2.9 Negative Covenants with Respect to Funding Trust and
the Company......................................... 20
Section 2.10 Representations and Warranties of AmeriCredit.......... 21
Section 2.11 Affirmative Covenants of AmeriCredit................... 25
Section 2.12 Negative Covenants of AmeriCredit...................... 28
ARTICLE III THE POLICIES; REIMBURSEMENT; INDEMNIFICATION........... 29
Section 3.1 Issuance of the Policy................................. 29
Section 3.2 Payment of Fees and Premium............................ 29
Section 3.3 Reimbursement and Additional Payment Obligation........ 30
Section 3.4 Certain Obligations Not Recourse to AmeriCredit........ 31
Section 3.5 Indemnification........................................ 32
Section 3.6 Subrogation............................................ 33
ARTICLE IV FURTHER AGREEMENTS..................................... 34
Section 4.1 Effective Date; Term of Agreement...................... 34
Section 4.2 Obligations Absolute................................... 34
Section 4.3 Assignments; Reinsurance; Third-Party Rights........... 35
Section 4.4 Liability of Financial Security........................ 36
ARTICLE V EVENTS OF DEFAULT; REMEDIES............................ 36
Section 5.1 Events of Default...................................... 36
Section 5.2 Remedies; Waivers...................................... 40
i
TABLE OF CONTENTS
(CONTINUED)
PAGE
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ARTICLE VI MISCELLANEOUS.......................................... 41
Section 6.1 Amendments, Etc........................................ 41
Section 6.2 Notices................................................ 41
Section 6.3 Payment Procedure...................................... 43
Section 6.4 Severability........................................... 43
Section 6.5 Governing Law.......................................... 43
Section 6.6 Consent to Jurisdiction................................ 43
Section 6.7 Consent of Financial Security.......................... 44
Section 6.8 Counterparts........................................... 45
Section 6.9 Trial by Jury Waived................................... 45
Section 6.10 Limited Liability...................................... 45
Section 6.11 Entire Agreement....................................... 45
Appendix I Definitions
Annex I Form of Note Policy
Appendix A Conditions Precedent to Issuance of the Policy
ii
INSURANCE AND INDEMNITY AGREEMENT
INSURANCE AND INDEMNITY AGREEMENT dated as of July 12, 2006 among FINANCIAL
SECURITY ASSURANCE INC. ("Financial Security"), AMERICREDIT AUTOMOBILE
RECEIVABLES TRUST 2006-A-F (the "Trust"), a Delaware statutory trust, AFS
FUNDING TRUST, a Delaware statutory trust (when referred to individually
hereunder, "Funding Trust," when referred to as the seller under the Sale and
Servicing Agreement referred to below, the "Seller"), and AMERICREDIT FINANCIAL
SERVICES, INC. (the "Company"), a Delaware corporation and AMERICREDIT CORP., a
Texas corporation ("AmeriCredit").
INTRODUCTORY STATEMENTS
Funding Trust proposes to acquire the Receivables from the Company and
simultaneously to sell to the Trust all of its right, title and interest in and
to the Receivables and certain other property pursuant to the Sale and Servicing
Agreement. The Trust will issue the Certificate pursuant to the Trust Agreement
and Notes pursuant to the Indenture.
Each Note will be secured by the Collateral. The Trust has requested that
Financial Security issue a financial guaranty insurance policy guarantying
certain distributions of interest and principal on the Notes on each Insured
Distribution Date (including any such distributions subsequently avoided as a
preference under applicable bankruptcy law) upon the terms, and subject to the
conditions, provided herein.
The parties hereto desire to specify the conditions precedent to the
issuance of the Policy by Financial Security, the payment of premium in respect
of the Policy, the indemnity and reimbursement to be provided to Financial
Security in respect of amounts paid by Financial Security under the Policy or
otherwise and certain other matters.
In consideration of the premises and of the agreements herein contained,
Financial Security, the Trust, the Company, Funding Trust and AmeriCredit hereby
agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1 Definitions. Capitalized terms used herein shall have the
meanings provided in Appendix I hereto or the meanings given such terms in the
Sale and Servicing Agreement or the Spread Account Agreement, unless the context
otherwise requires.
ARTICLE II
REPRESENTATIONS, WARRANTIES AND COVENANTS
Section 2.1 Representations and Warranties of the Trust. The Trust
represents and warrants, as of the date hereof and as of the Date of Issuance
(except as expressly provided herein), as follows:
(a) Due Organization and Qualification. The Trust is duly formed and
validly existing as a Delaware statutory trust and is in good standing under the
laws of the State of Delaware. The Trust is duly qualified to do business, is in
good standing and has obtained all necessary 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 Receivable or Transaction Document unenforceable in any
material respect or would otherwise have a material adverse effect upon the
Transaction.
(b) Power and Authority. The Trust has all necessary trust 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 has full power and authority to sell and assign the
Receivables as contemplated by the Transaction Documents and to consummate the
Transaction.
(c) Due Authorization. The execution, delivery and performance of the
Transaction Documents by the Trust have been duly authorized by all necessary
trust 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.
(d) Noncontravention. None of the execution and delivery of the Transaction
Documents by the Trust, the consummation of the transactions contemplated
thereby 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 Certificate of Trust or the Trust Agreement, or any law,
rule, regulation, order, writ, judgment, injunction, decree, determination
or award currently in effect having applicability to the Trust or its
property, including regulations issued by an administrative agency or other
governmental authority having supervisory powers over the Trust,
(ii) constitutes, or will constitute, a default by the Trust under, or
a breach of, any provision of any loan agreement, mortgage, indenture or
other agreement or instrument to which the Trust is a party or by which it
or any of its property 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 of the assets of the Trust, except as otherwise expressly
contemplated by the Transaction Documents.
(e) Legal Proceedings. There is no action, proceeding, suit or
investigation by or before any court, governmental or administrative agency or
arbitrator against or affecting the Trust, or any properties or rights of the
Trust, pending or, to the knowledge of the Trust, threatened, which, in any
case, if decided adversely, would result in a Material Adverse Change with
respect to the Trust, the Certificate or the Notes.
(f) Valid and Binding Obligations. Each of the Transaction Documents to
which the Trust is a party when executed by the Owner Trustee on behalf of the
Trust, will constitute the legal, valid and binding obligations of the Trust
enforceable against the Trust in accordance with their respective terms, except
as limited by applicable bankruptcy, insolvency, reorganization, moratorium and
similar laws affecting the enforcement of creditors' rights generally or general
equitable principles (whether in a proceeding at law or in equity) and except to
the extent that rights to indemnity and contribution may be limited by public
policy. The Certificate, when executed, authenticated and delivered in
accordance with the Trust Agreement, will be validly issued and outstanding and
entitled to the benefits of the Trust Agreement and will evidence the entire
beneficial ownership interest in the Trust. The Notes when executed,
authenticated and delivered in accordance with the Indenture, will be entitled
to the benefits of the Indenture and will constitute legal, valid and binding
obligations of the Trust, enforceable in accordance with their terms, except as
limited by applicable bankruptcy, insolvency, reorganization, moratorium and
similar laws affecting the enforcement of creditors' rights generally or general
equitable principles (whether in a proceeding at law or in equity) and except to
the extent that rights to indemnity and contribution may be limited by public
policy.
(g) Accuracy of Information. None of the Transaction Documents, nor any of
the Provided Documents, contain any statement of a material fact with respect to
the Trust or the Transaction that was untrue or misleading in any material
respect when made. Since the furnishing of the Provided Documents, there has
been no change, nor any development or event involving a prospective change
known to the Trust, that would render any of the Provided Documents untrue or
misleading in any material respect. There is no fact known to the Trust which
has a material possibility of causing a Material Adverse Change with respect to
the Trust or which has a material possibility of impairing the value or
marketability of the Receivables, taken as a whole, or decreasing the
possibility that amounts due in respect of the Receivables will be collected as
due.
(h) Compliance With Securities Laws. The offer and sale of the Notes 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 did not, as of its date, and does not, as
of the date hereof, contain any untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements made therein, in light of the circumstances under which they were
made, not misleading.
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(i) Transaction Documents. Each of the representations and warranties of
the Trust contained in the Transaction Documents is true and correct in all
material respects and the Trust hereby makes each such representation and
warranty made by it to, and for the benefit of, Financial Security as if the
same were set forth in full herein.
(j) No Consents. No consent, license, authorization or approval from, or
registration or other action by, and no notice to or filing or declaration with,
any governmental entity or regulatory body, is required for the due execution,
delivery and performance by the Trust 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.
(k) Compliance With Law, Etc. No practice, procedure or policy employed or
proposed to be employed by the Trust in the conduct of its business violates any
law, regulation, judgment, agreement, order or decree applicable to it which, if
enforced, would result in a Material Adverse Change with respect to the
financial condition of such Person.
(l) Special Purpose Entity.
(i) The capital of the Trust is adequate for the business and
undertakings of the Trust.
(ii) Except as contemplated by the Transaction Documents, the Trust is
not engaged in any business transactions with any AmeriCredit Party, AFS
Funding or any Affiliate of any of them.
(iii) The Trust's funds and assets are not, and will not be,
commingled with the funds of any other Person.
(m) Solvency; Fraudulent Conveyance. The Trust is solvent and will not be
rendered insolvent by the Transaction and, after giving effect to such
Transaction, the Trust will not be left with an unreasonably small amount of
capital with which to engage in its business. The Trust does not intend to
incur, or believe that it has incurred, debts beyond its ability to pay such
debts as they mature. The Trust 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 Trust or any of its assets.
(n) Perfection of Liens and Security Interest. On the Date of Issuance, the
Lien and security interest in favor of the Trust Collateral Agent with respect
to the Collateral will be perfected by the filing of financing statements on
Form UCC-1 in each jurisdiction where such recording or filing is necessary for
the perfection thereof, the delivery of the Receivables Files to the Custodian,
and the establishment of the Collection Account, the Capitalized Interest
Account, the Pre-Funding Account and the Note Distribution Account in accordance
with the provisions of the Transaction Documents, and no other filings in any
jurisdiction or any other actions (except as
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expressly provided herein) are necessary to perfect the Trust Collateral Agent's
Lien on and security interest in the Collateral as against any third parties.
(o) Investment Company Act. The Trust 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.
(p) Collateral. On the Date of Issuance and on each Subsequent Transfer
Date, the Trust will have good and marketable title to each item of other Trust
Property conveyed on such date and will own each such item free and clear of any
Lien (other than Liens contemplated under the Indenture) or any equity or
participation interest of any other Person.
(q) Security Interest in Funds and Investments. Assuming the retention of
funds in the Accounts, such funds will be subject to a valid and perfected,
first priority security interest in favor of the Trust Collateral Agent on
behalf of the Indenture Trustee (on behalf of the Noteholders), the
Certificateholder and Financial Security.
Section 2.2 Affirmative Covenants of the Trust. The Trust hereby agrees (to
the extent set forth in this Section 2.2) that during the Term of this
Agreement, unless Financial Security shall otherwise expressly consent in
writing:
(a) Compliance With Agreements and Applicable Laws. The Trust shall perform
each of its obligations under the Transaction Documents and shall comply with
all material requirements of, and the Notes shall be offered and sold in
accordance with, any law, rule, regulation or order applicable to it or thereto,
or that are required in connection with its performance under any of the
Transaction Documents. The Trust will not cause or permit to become effective
any amendment to or modification of any of the Transaction Documents to which it
is a party unless Financial Security shall have previously approved in writing
the substance of such amendment or modification. The Trust shall not take any
action or fail to take any action that would interfere with the enforcement of
any rights under the Transaction Documents.
(b) Certain Information. The Trust shall keep, or cause to be kept, in
reasonable detail books and records of account of its assets and business, which
shall be furnished to Financial Security upon request. The Trust shall furnish
to Financial Security, simultaneously with the delivery of such documents to the
Indenture Trustee, the Noteholders or the Certificateholder, as the case may be,
copies of all reports, certificates, statements, financial statements or notices
furnished to the Indenture Trustee, the Noteholders or the Certificateholder, as
the case may be, pursuant to the Transaction Documents (including, but not
limited to, copies of any reports submitted to the Trust by its independent
accountants in connection with any examination of the financial statements of
the Trust).
(i) Certain Information. Not less than ten days prior to the date of
filing with the IRS of any tax return or amendment thereto, copies of the
proposed form of such return or amendment and, promptly after the filing or
sending
5
thereof, (A) copies of each tax return and amendment thereto that the Trust
files with the IRS and (B) copies of all financial statements, reports, and
registration statements which the Trust files with, or delivers to, any
federal government agency, authority or body which supervises the issuance
of securities by the Trust.
(ii) Other Information. Promptly upon the request of Financial
Security, copies of all schedules, financial statements or other similar
reports delivered to or by the Trust pursuant to the terms of this
Agreement and the other Transaction Documents and such other data as
Financial Security may reasonably request.
(iii) a review of the Trust's performance under the Transaction
Documents during such period has been made under such officer's
supervision; and
(iv) to the best of such individual's knowledge following reasonable
inquiry, no Default or Event of Default has occurred, or if a Default or
Event of Default has occurred, specifying the nature thereof and, if the
Trust has or had a right to cure pursuant to Section 5.1, stating in
reasonable detail the steps, if any, taken or being taken by the Trust to
cure such Default or Event of Default or to otherwise comply with the terms
of the Transaction Document to which such default or Event of Default
relates.
(c) Access to Records; Discussions with Officers. The Trust shall, upon the
request of Financial Security, permit Financial Security, or its authorized
agent, at the expense of Financial Security, at reasonable times and upon
reasonable prior written notice:
(i) to inspect such books and records of the Trust as may relate to
the Notes, the Certificate, the Receivables and the other Trust Property,
the obligations of the Trust under the Transaction Documents, the business
of the Trust and the transactions consummated in connection therewith; and
(ii) to discuss the affairs, finances and accounts of the Trust with
an appropriate officer of the Trust.
Such inspections and discussions shall be conducted during normal business
hours and shall not unreasonably disrupt the business of the Trust.
(d) Notice of Material Events. The Trust shall promptly inform Financial
Security in writing of the occurrence of any of the following:
(i) the submission of any claim or the initiation of any legal
process, litigation or administrative or judicial investigation against the
Trust in any federal, state or local court or before any arbitration board,
or any such proceeding threatened by any governmental agency, which, if
adversely determined, would have a material adverse effect on the
Receivables as a whole,
6
or which, if adversely determined, would have a material adverse effect
upon the ability of the Trust to perform its obligations under any
Transaction Document;
(ii) any change in the location of the Trust's principal office or any
change in the location of the books and records of the Trust;
(iii) the occurrence of any Default or Special Event; or
(iv) any other event, circumstance or condition that has resulted, or
which is reasonably likely to result, in a Material Adverse Change in
respect of the Trust.
(e) Further Assurances. The Trust will file all necessary financing
statements, assignments 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 Lien
on and security interest in, and all rights of the Trust Collateral Agent with
respect to the Collateral under the Indenture. In addition, the Trust shall,
upon the request of Financial Security, from time to time, execute, acknowledge
and deliver, or cause to be executed, acknowledged and delivered, within thirty
(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 or to protect
the interest of the Trust Collateral Agent in the Collateral under the
Indenture. In addition, the Trust agrees to cooperate with S&P, Fitch and
Xxxxx'x in connection with any review of the Transaction which may be undertaken
by S&P, Fitch and Xxxxx'x after the date hereof.
(f) Retirement of Notes. The Trust shall, upon retirement of the Notes,
furnish to Financial Security a notice of such retirement, and, upon such
retirement and the expiration of the Term Of The Policy, surrender the Policy to
Financial Security for cancellation.
(g) Third-Party Beneficiary. The Trust agrees that Financial Security shall
have all rights of a third-party beneficiary in respect of the Sale and
Servicing Agreement and hereby incorporates and restates its representations,
warranties and covenants as set forth therein for the benefit of Financial
Security.
(h) Preservation of Existence. The Trust shall observe in all material
respects all procedures required by its Certificate of Trust and Trust Agreement
and preserve and maintain its existence as a trust and its rights, franchises
and privileges in the jurisdiction of its organization, and shall qualify and
remain qualified in good standing in each jurisdiction where the nature of its
business requires it to do so except where the failure to be so qualified, in
good standing and to maintain its rights, franchises and privileges would not
have a material adverse effect on the financial condition of the Trust, or its
ability to perform its obligations under this Agreement or under any other
Transaction Document to which it is party.
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(i) Disclosure Document. Each Offering Document delivered with respect to
the Notes 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. In addition, each Offering Document delivered with respect
to the Notes which includes financial statements of Financial Security prepared
in accordance with generally accepted accounting principles (but excluding any
Offering Document in which such financial statements are incorporated by
reference) shall include the following statement immediately preceding such
financial statements:
The New York State Insurance Department recognizes only statutory
accounting practices for determining and reporting the financial
condition and results of operations of an insurance company, for
determining its solvency under the New York Insurance Law, and for
determining where its financial condition warrants the payment of a
dividend to its stockholders. No consideration is given by the New
York State Insurance Department to financial statements prepared in
accordance with generally accepted accounting principles in making
such determinations.
(j) Special Purpose Entity.
(i) The Trust shall conduct its business solely in its own name
through its duly authorized officers or agents so as not to mislead others
as to the identity of the entity with which those others are concerned, and
particularly will use its best efforts to avoid the appearance of
conducting business on behalf of AmeriCredit, the Company, AFS Funding,
Funding Trust or any other Affiliates thereof or that the assets of the
Trust are available to pay the creditors of AmeriCredit, the Company, AFS
Funding, Funding Trust or any other Affiliates thereof. Without limiting
the generality of the foregoing, all oral and written communications,
including, without limitation, letters, invoices, purchase orders,
contracts, statements and loan applications, will be made solely in the
name of the Trust.
(ii) The Trust shall maintain trust records and books of account
separate from those of AmeriCredit, the Company, AFS Funding, Funding Trust
and Affiliates of any of them.
(iii) The Trust shall obtain proper authorization from its equity
owners of all trust action requiring such authorization, and copies of each
such authorization and the minutes or other written summary of each such
meeting shall be delivered to Financial Security within two weeks of such
authorization or meeting as the case may be.
(iv) Although the organizational expenses of the Trust have been paid
by AmeriCredit, operating expenses and liabilities of the Trust shall be
paid from its own funds or by AmeriCredit.
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(v) The annual financial statements of the Trust shall disclose the
effects of the Trust's transactions in accordance with generally accepted
accounting principles and shall disclose that the assets of the Trust are
not available to pay creditors of AmeriCredit, the Company, AFS Funding,
Funding Trust or any Affiliate of any of them.
(vi) The resolutions, agreements and other instruments of the Trust
underlying the transactions described in this Agreement and in the other
Transaction Documents shall be continuously maintained by the Trust as
official records of the Trust separately identified and held apart from the
records of AmeriCredit, the Company, AFS Funding, Funding Trust and each
Affiliate of any of them.
(vii) The Trust shall maintain an arm's-length relationship with
AmeriCredit, the Company, AFS Funding, Funding Trust and each Affiliate of
any of them and will not hold itself out as being liable for the debts of
any such Person.
(viii) The Trust shall keep its assets and its liabilities wholly
separate from those of all other entities, including, but not limited to,
the Representative, the Company, AFS Funding, Funding Trust and each
Affiliate of any of them except, in each case, as contemplated by the
Transaction Documents.
(k) Tax Matters. The Trust will take, or refrain from taking, as the case
may be, all actions necessary to ensure that for federal and state income tax
purposes the Trust is not taxable as an association (or publicly traded
partnership) taxable as a corporation.
(l) Securities Laws. The Trust shall comply in all material respects with
all applicable provisions of state and federal securities laws, including blue
sky laws and the Securities Act, the Exchange Act and the Investment Company Act
and all rules and regulations promulgated thereunder for which non-compliance
would result in a Material Adverse Change with respect to the Trust.
(m) Incorporation of Covenants. The Trust shall comply with each of the
Trust's covenants set forth in the Transaction Documents and hereby incorporates
such covenants by reference as if each were set forth herein.
Section 2.3 Negative Covenants of the Depositor on Behalf of the Trust.
Funding Trust as Depositor, on behalf of the Trust, hereby agrees (to the extent
set forth in this Section 2.3), that during the Term of the Agreement, unless
Financial Security shall otherwise expressly consent in writing:
(a) Restrictions on Liens. The Trust 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
(ii) file under the Uniform Commercial Code of any jurisdiction any financing
statement which names the Trust as a debtor, or sign any
9
security agreement authorizing any secured party thereunder to file such
financing statement, with respect to the Receivables.
(b) Impairment of Rights. The Trust shall not take any action, or fail to
take any action, if such action or failure to take action would be reasonably
likely to (i) interfere with the enforcement of any rights under the Transaction
Documents that are material to the rights, benefits or obligations of the
Indenture Trustee, the Certificateholder, the Noteholders or Financial Security,
(ii) result in a Material Adverse Change in respect of the Receivables, or (iii)
impair the ability of the Trust to perform its obligations under the Transaction
Documents.
(c) Waiver, Amendments, Etc. The Trust shall not waive, modify or amend, or
consent to any waiver, modification or amendment of, any of the provisions of
any of the Transaction Documents.
(d) Successors. The Trust shall not terminate or designate, or consent to
the termination or designation of, the Servicer, Back-up Servicer, the
Collateral Agent, the Owner Trustee or any successor thereto without the prior
approval of Financial Security.
(e) Creation of Indebtedness; Guarantees. Other than the Transaction
Documents, the Trust shall not create, incur, assume or suffer to exist any
indebtedness other than indebtedness guaranteed or approved in writing by
Financial Security. Without the prior written consent in writing of Financial
Security, the Trust shall not assume, guarantee, endorse or otherwise be or
become directly or contingently liable for the obligations of any Person by,
among other things, agreeing to purchase any obligation of another Person,
agreeing to advance funds to such Person or causing or assisting such Person to
maintain any amount of capital.
(f) Subsidiaries. The Trust shall not form, or cause to be formed, any
Subsidiaries.
(g) No Mergers. The Trust 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.
(h) Other Activities. The Trust 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.
(i) Insolvency. The Trust shall not commence any case, proceeding or other
action (A) under any existing or future law of any jurisdiction, domestic or
foreign, relating to the bankruptcy, insolvency, reorganization or relief of
debtors, seeking to have an order for relief entered with respect to it, or
seeking reorganization, arrangement,
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adjustment, winding-up, liquidation, dissolution, corporation or other relief or
(B) seeking appointment of a receiver, trustee, custodian or other similar
official for it or for all or any substantial part of its assets or make a
general assignment for the benefit of its creditors. The Trust shall not take
any action in furtherance of, or indicating the consent to, approval of, or
acquiescence in, any of the acts set forth above. The Trust shall not admit in
writing its inability to pay its debts.
Section 2.4 [Reserved].
Section 2.5 [Reserved].
Section 2.6 [Reserved].
Section 2.7 Representations and Warranties with Respect to Funding Trust
and the Company. Each AmeriCredit Party represents, warrants and covenants, as
of the Date of Issuance, with respect to Funding Trust and the Company, as
follows:
(a) Due Organization and Qualification. Funding Trust is duly formed and
validly existing as a Delaware statutory trust and is in good standing under the
laws of the State of Delaware and the Company is a corporation, duly organized,
validly existing and in good standing under the laws of Delaware. Each of
Funding Trust and the Company is duly qualified to do business, is in good
standing and has obtained all necessary 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 Receivable unenforceable in any respect or would otherwise have
a material adverse effect upon the Transaction.
(b) Power and Authority. Each of Funding Trust and the Company has all
necessary trust power and corporate power, respectively 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 has full power and authority to sell and assign the Receivables as
contemplated by the Transaction Documents and to consummate the Transaction.
(c) Due Authorization. The execution, delivery and performance of the
Transaction Documents by each of Funding Trust and the Company have been duly
authorized by all necessary trust action and corporate action, respectively 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 Company's stockholder.
(d) Noncontravention. None of the execution and delivery of the Transaction
Documents by the Company or by Funding Trust, the consummation of the
transactions contemplated thereby nor the satisfaction of the terms and
conditions of the Transaction Documents,
11
(i) conflicts with or results in any breach or violation of any
provision of the Certificate of Incorporation or Bylaws of the Company or
the Certificate of Trust or the Funding Trust Agreement of Funding Trust,
as the case may be, or any law, rule, regulation, order, writ, judgment,
injunction, decree, determination or award currently in effect having
applicability to the Company or Funding Trust, as the case may be, or any
of their respective properties, including regulations issued by an
administrative agency or other governmental authority having supervisory
powers over the Company or Funding Trust, as the case may be,
(ii) constitutes or will constitute a default by the Company or
Funding Trust, as the case may be, under or a breach of any provision of
any loan agreement, mortgage, indenture or other agreement or instrument to
which the Company or Funding Trust is a party or by which it, or any of its
or their properties is, or may be, bound or affected, or
(iii) results in or requires the creation of any Lien upon or in
respect of any of the assets of the Company or Funding Trust except as
otherwise expressly contemplated by the Transaction Documents.
(e) Legal Proceedings. There is no action, proceeding or investigation
pending, or to the best knowledge of the Company or Funding Trust after
reasonable inquiry, threatened by or before any court, regulatory body,
governmental or administrative agency or arbitrator against or affecting the
Company or Funding Trust, or any properties or rights of the Company or Funding
Trust, including without limitation, the Receivables, which might result in a
Material Adverse Change with respect to the Company, Funding Trust or the
Certificate.
(f) Valid and Binding Obligations. Each of the Transaction Documents to
which either the Company or Funding Trust is a party when executed and delivered
by the Company or Funding Trust, as the case may be, will constitute the legal,
valid and binding obligations of such Person, 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. The
Certificate, when executed, authenticated and delivered in accordance with the
Trust Agreement, will be validly issued and outstanding and entitled to the
benefits of the Trust Agreement and will evidence the entire beneficial
ownership interest in the Trust. The Notes when executed, authenticated and
delivered in accordance with the Indenture, will be entitled to the benefits of
the Indenture and will constitute legal, valid and binding obligations of the
Trust, enforceable in accordance with their terms, except as limited by
applicable bankruptcy, insolvency, reorganization, moratorium and similar laws
affecting the enforcement of creditors' rights generally or general equitable
principles (whether in a proceeding at law or in equity) and except to the
extent that rights to indemnity and contribution may be limited by public
policy.
12
(g) ERISA. Each of Funding Trust and the Company is in compliance with
ERISA and has not incurred and does not reasonably expect to incur, any
liabilities to the PBGC under ERISA in connection with any Plan or Multiemployer
Plan.
(h) Accuracy of Information. None of the Transaction Documents nor any of
the Provided Documents contain any statement of a material fact with respect to
the Company or Funding Trust or the Transaction that was untrue or misleading in
any material respect when made. Since the furnishing of the Provided Documents,
there has been no change, nor any development or event involving a prospective
change known to the Company or to Funding Trust, that would render any of the
Provided Documents untrue or misleading in any material respect. There is no
fact known to the Company or Funding Trust which has a material possibility of
causing a Material Adverse Change with respect to either of the Company or
Funding Trust, or which has a material possibility of impairing the value or
marketability of the Receivables, taken as a whole, or decreasing the
possibility that amounts due in respect of the Receivables will be collected as
due.
(i) Compliance With Securities Laws. The offer and sale of the Securities
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 required to be stated
therein or necessary to make the statements made therein, in light of the
circumstances under which they were made, not misleading.
(j) Transaction Documents. Each of the representations and warranties of
Funding Trust and the Company contained in the Transaction Documents is true and
correct in all material respects and each of Funding Trust and the Company
hereby makes each such representation and warranty made by it to, and for the
benefit of, Financial Security as if the same were set forth in full herein.
(k) 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 execution, delivery and performance by the
Company or Funding Trust of this Agreement or of any other Transaction Document
to which such Person is a party, except (in each case) such as have been
obtained and are in full force and effect.
(l) Compliance With Law, Etc. No practice, procedure or policy employed or
proposed to be employed by the Company or Funding Trust in the conduct of their
respective businesses violates any law, regulation, judgment, agreement, order
or decree applicable to it which, if enforced, would result in a Material
Adverse Change with respect to such Person.
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(m) Special Purpose Entity.
(i) The capital of Funding Trust is adequate for the business and
undertakings of Funding Trust.
(ii) Other than with respect to the purchase by the Company of the
stock of AFS Funding, which holds the certificate of Funding Trust, with
respect to matters covered in the Administration Agreement and as provided
in this Agreement or the Transaction Documents, Funding Trust is not
engaged in any business transactions with the Company.
(iii) [Reserved].
(iv) The funds and assets of Funding Trust are not, and will not be,
commingled with the funds of any other person.
(n) Solvency; Fraudulent Conveyance. Each of Funding Trust and the Company
is solvent and will not be rendered insolvent by the Transaction and, after
giving effect to such Transaction, neither the Company nor Funding Trust will be
left with an unreasonably small amount of capital with which to engage in its
business. Neither the Company nor Funding Trust intends to incur, or believes
that it has incurred, debts beyond its ability to pay such debts as they mature.
Neither the Company nor Funding Trust 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 Company or Funding Trust, as the case may be, or any of their
respective assets. The amount of consideration being received by the Seller upon
the sale of the Receivables to the Trust constitutes reasonably equivalent value
and fair consideration for the Receivables. The Seller is not selling the
Receivables to the Trust, as provided in the Transaction Documents, with any
intent to hinder, deal or defraud any of the Company's creditors.
(o) Good Title; Valid Transfer; Absence of Liens; Security Interest.
(i) Immediately prior to the pledge of the Collateral to the Trust
Collateral Agent pursuant to the Indenture, the Trust was the owner of, and
had good and marketable title to, such property free and clear of all Liens
and Restrictions on Transferability, and had or will have had full right,
power and lawful authority to assign, transfer and pledge such Receivables.
The Indenture constitutes a valid pledge of the Collateral to the Trust
Collateral Agent and the Trust Collateral Agent shall have a valid and
perfected first priority security interest in the Collateral, free and
clear of all Liens and Restrictions on Transferability.
(ii) Immediately prior to the transfer of any Receivables to the Trust
pursuant to the Sale and Servicing Agreement, Funding Trust was or will
have been the owner of, and had good and marketable title to, such property
free and clear of all Liens and Restrictions on Transferability, and had or
will have had full right, corporate power and lawful authority to assign,
transfer and pledge such
14
Receivables. In the event that a transfer of the Receivables by Funding
Trust to the Trust is characterized as other than a sale, such transfer
shall be characterized as a secured financing, and the Trustee shall have a
valid and perfected first priority security interest in such Receivables
free and clear of all Liens and Restrictions on Transferability.
(iii) Immediately prior to the sale of the Receivables to Funding
Trust pursuant to the Purchase Agreement, the Company was or will have been
the owner of, and had good and marketable title to, the Receivables being
transferred by such party free and clear of all Liens and Restrictions on
Transferability, and had or will have had full right, corporate power and
lawful authority to assign, transfer and pledge such Receivables. In the
event that a transfer of the Receivables by the Company to Funding Trust is
characterized as other than a sale, such transfer shall be characterized as
a secured financing, and Funding Trust shall have a valid and perfected
first priority security interest in such Receivables free and clear of all
Liens and Restrictions on Transferability.
(p) Subsequent Receivables; Good Title; Valid Transfer; Absence of Liens;
Security Interest.
(i) Immediately prior to the sale of Subsequent Receivables and
related Other Conveyed Property to the Trust pursuant to a Subsequent
Transfer Agreement, Funding Trust will be the owner of, and shall have good
and marketable title to, such property free and clear of all Liens and
Restrictions on Transferability, and have full right, corporate power and
lawful authority to assign, transfer and pledge such Subsequent Receivables
and related Other Conveyed Property. The Subsequent Transfer Agreement will
constitute a valid sale, transfer and assignment of such Subsequent
Receivables and related Other Conveyed Property to the Trust enforceable
against creditors of and purchasers of Funding Trust. In the event that, in
contravention of the intention of the parties, the transfer of the
Subsequent Receivables and related Other Conveyed Property by Funding Trust
to the Trust is characterized as other than a sale, such transfer shall be
characterized as a secured financing, and the Trust shall have a valid and
perfected first priority security interest in the Subsequent Receivables
and related Other Conveyed Property free and clear of all Liens and
Restrictions on Transferability.
(ii) Immediately prior to the sale of Subsequent Receivables and
related Other Conveyed Property to Funding Trust pursuant to a Subsequent
Purchase Agreement, the Company will be the owner of, and shall have good
and marketable title to, such property free and clear of all Liens and
Restrictions on Transferability, and have full right, corporate power and
lawful authority to assign, transfer and pledge such Subsequent Receivables
and related Other Conveyed Property. The Subsequent Purchase Agreement will
constitute a valid sale, transfer and assignment of such Subsequent
Receivables and related Other Conveyed Property to Funding Trust
enforceable against creditors of and purchasers of Funding Trust. In the
event that, in contravention of the intention of
15
the parties, the transfer of the Subsequent Receivables and related Other
Conveyed Property by the Company to Funding Trust is characterized as other
than a sale, such transfer shall be characterized as a secured financing,
and Funding Trust shall have a valid and perfected first priority security
interest in the Subsequent Receivables and related Other Conveyed Property
free and clear of all Liens and Restrictions on Transferability.
(q) Taxes. The Company has filed all federal and state tax returns which
are required to be filed and paid all taxes, including any assessments received
by the Company, to the extent that such taxes have become due. Any taxes, fees
and other governmental charges payable by the Company or Funding Trust in
connection with the Transaction, the execution and delivery of the Transaction
Documents and the issuance of the Securities have been paid or shall have been
paid at or prior to the Date of Issuance.
(r) Security Interest in Funds and Investments in the Spread Account.
Assuming the retention of funds in the Spread Account, such funds will be
subject to a valid and perfected, first priority security interest in favor of
the Collateral Agent on behalf of the Indenture Trustee (on behalf of the
Noteholders) and Financial Security.
Section 2.8 Affirmative Covenants with Respect to the Company and Funding
Trust. Each AmeriCredit Party hereby agrees with respect to the Company and with
respect to Funding Trust that during the Term of this Agreement, unless
Financial Security shall otherwise expressly consent in writing:
(a) Compliance With Agreements and Applicable Laws. Each of Funding Trust
and the Company shall perform each of its respective obligations under the
Transaction Documents and shall comply with all material requirements of any
law, rule or regulation applicable to it, or that are required in connection
with its performance under any of the Transaction Documents. Neither the Company
nor Funding Trust will cause or permit to become effective any amendment to or
modification of any of the Transaction Documents to which it is a party unless
Financial Security shall have previously approved in writing the form of such
amendment or modification. Neither the Company nor Funding Trust shall take any
action or fail to take any action that would interfere with the enforcement of
any rights under the Transaction Documents.
(b) Reports; Other Information. Each of Funding Trust and the Company shall
keep or cause to be kept in reasonable detail books and records of account of
their respective assets and business. Each of Funding Trust and the Company
shall furnish or caused to be furnished to Financial Security:
(i) Promptly upon receipt thereof, copies of all reports, statements,
certifications, schedules, or other similar items delivered to or by the
Company or Funding Trust pursuant to the terms of the Transaction Documents
and, promptly upon request, such other data as Financial Security may
reasonably request; provided, however, that neither the Company nor Funding
Trust shall be required to deliver any such items if provision by some
other party to Financial Security is
16
required under the Transaction Documents unless such other party wrongfully
fails to deliver such item. The Company and Funding Trust shall, upon the
request of Financial Security, permit Financial Security or its authorized
agents (A) to inspect its books and records as they may relate to the
Securities, the Receivables, the Certificate, the obligations of Funding
Trust and the Company under the Transaction Documents, the Transaction and,
but only following the occurrence of a Special Event, Funding Trust's
business; (B) to discuss the affairs, finances and accounts of Funding
Trust and the Company with an officer of each upon Financial Security's
reasonable request; and (C) upon the occurrence of a Special Event, to
discuss the affairs, finances and accounts of Funding Trust and the Company
with its independent accountants, provided that an officer of such Person
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 such Person. The fees
and expenses of Financial Security or any such authorized agents shall be
for the account of AmeriCredit.
(ii) The Company shall provide or cause to be provided to Financial
Security an executed original copy of each document executed in connection
with the transaction within 30 days after the date of closing.
(c) Notice of Material Events. The Company and Funding Trust shall promptly
inform Financial Security in writing of the occurrence of any of the following:
(i) the submission of any claim or the initiation of any legal
process, litigation or administrative or judicial investigation (A) against
the Company or Funding Trust pertaining to the Receivables in general, (B)
with respect to a material portion of the Receivables, or (C) in which a
request has been made for certification as a class action (or equivalent
relief) that would involve a material portion of the Receivables;
(ii) any change in the location of the principal office of either of
the Company or Funding Trust or any change in the location of the books and
records of the Company or Funding Trust;
(iii) the occurrence of any Default or Special Event; or
(iv) any other event, circumstance or condition that has resulted, or
which the Company or Funding Trust, as the case may be, reasonably believes
might result, in a Material Adverse Change in respect of the Company or
Funding Trust.
(d) Further Assurances. Each of Funding Trust and the Company will file all
necessary financing statements, assignments 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 Lien on and security interest in, and all rights of the
Trust Collateral Agent, for the benefit of the
17
Trust Collateral Agent (for the Certificateholder and Financial Security), with
respect to the Receivables, the Collection Account and the Spread Account. In
addition, each of Funding Trust and the Company shall, upon the request of
Financial Security, from time to time, execute, acknowledge and deliver, or
cause to be executed, acknowledged and delivered, within thirty (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 or to protect the
interest of the Trust, the Owner Trustee, the Indenture Trustee and Financial
Security, in the Receivables, the Collection Account and the Spread Account,
free and clear of all Liens and Restrictions on Transferability except as
contemplated by the Transaction Documents. In addition, each of Funding Trust
and the Company agrees to cooperate with S&P, Fitch and Xxxxx'x in connection
with any review of the Transaction which may be undertaken by S&P, Fitch and
Xxxxx'x after the date hereof.
(e) Third-Party Beneficiary. Each of Funding Trust and the Company agrees
that Financial Security shall have all rights of a third-party beneficiary in
respect of the Sale and Servicing Agreement and hereby incorporates and restates
its representations, warranties and covenants as set forth therein for the
benefit of Financial Security.
(f) Existence. Funding Trust shall maintain its existence and the Company
shall maintain its corporate existence and shall at all times continue to be
duly organized under the laws of Delaware, and duly qualified and duly
authorized (as described in Sections 2.7(a), (b) and (c) hereof) and shall
conduct its business in accordance with the terms of its Certificate of Trust
and its Funding Trust Agreement (with respect to Funding Trust) or its
Certificate of Incorporation and Bylaws (with respect to the Company).
(g) Disclosure Document. Each Offering Document delivered with respect to
the Securities 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. In addition, each Offering Document delivered with respect
to the Securities which includes financial statements of Financial Security
prepared in accordance with generally accepted accounting principles (but
excluding any Offering Document in which such financial statements are
incorporated by reference) shall include the following statement immediately
preceding such financial statements:
The New York State Insurance Department recognizes only statutory
accounting practices for determining and reporting the financial
condition and results of operations of an insurance company, for
determining its solvency under the New York Insurance Law, and for
determining where its financial condition warrants the payment of a
dividend to its stockholders. No consideration is given by the New
York State Insurance Department to financial statements prepared in
accordance with generally accepted accounting principles in making
such determinations.
18
(h) Special Purpose Entity.
(i) Funding Trust shall conduct its business solely in its own name
through its duly authorized agents (including but not limited to the
Administrator) so as not to mislead others as to the identity of the entity
with which those others are concerned, and particularly will use its best
efforts to avoid the appearance of conducting business on behalf of any
Affiliate thereof or that the assets of Funding Trust are available to pay
the creditors of the Company, AFS Funding or AmeriCredit or any Affiliate
thereof. Without limiting the generality of the foregoing, all oral and
written communications, including, without limitation, letters, invoices,
purchase orders, contracts, statements and loan applications, will be made
solely in the name of Funding Trust.
(ii) Funding Trust shall maintain trust records and books of account
separate from those of the Company, AFS Funding, the Trust and AmeriCredit,
and the affiliates thereof.
(iii) Funding Trust shall obtain proper authorization from its equity
owners of all trust action requiring such authorization, and copies of each
such authorization and the minutes or other written summary of each such
meeting shall be delivered to Financial Security within two weeks of such
authorization or meeting as the case may be.
(iv) [Reserved].
(v) Although the organizational expenses of Funding Trust have been
paid by AmeriCredit, Funding Trust shall pay its own operating expenses and
liabilities from its own funds.
(vi) The annual financial statements of Funding Trust shall disclose
the effects of Funding Trust's transactions in accordance with generally
accepted accounting principles and shall disclose that the assets of
Funding Trust are not available to pay creditors of AmeriCredit, AFS
Funding, the Trust or the Company or any Affiliate thereof.
(vii) The agreements and other instruments of Funding Trust underlying
the transactions described in this Agreement and in the other Transaction
Documents shall be continuously maintained by Funding Trust as official
records of Funding Trust, separately identified and held apart from the
records of AmeriCredit, AFS Funding, the Trust and the Company and each
Affiliate thereof.
(viii) Funding Trust shall maintain an arm's-length relationship with
AmeriCredit, AFS Funding, the Trust and the Company and the affiliates
thereof, and will not hold itself out as being liable for the debts of
AmeriCredit or the Company or any affiliate thereof.
19
(ix) Funding Trust shall keep its assets and liabilities wholly
separate from those of all other entities, including, but not limited to,
the Representative, AFS Funding, AmeriCredit, the Trust and the Company and
each Affiliate of them except, in each case, as contemplated by the
Transaction Documents.
(i) Maintenance of Licenses. Each of Funding Trust and the Company shall
maintain all licenses, permits, charters and registrations which are material to
the performance by it of its obligations under this Agreement and each other
Transaction Document to which it is a party or by which it is bound.
(j) Release of Liens. The Company shall duly file on behalf of the Lenders
no later than the first Business Day immediately following the Closing Date, the
amendments to, and/or terminations of, UCC financing statements evidencing the
Release of Security Interests.
Section 2.9 Negative Covenants with Respect to Funding Trust and the
Company. Each AmeriCredit Party hereby agrees with respect to Funding Trust and
with respect to the Company that during the Term of this Agreement, unless
Financial Security shall otherwise expressly consent in writing:
(a) Restrictions on Liens. Neither Funding Trust nor the Company shall,
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 (ii) file under the Uniform Commercial Code of any
jurisdiction any financing statement which names the Company or Funding Trust as
a debtor, or sign any security agreement authorizing any secured party
thereunder to file such financing statement, with respect to the Receivables.
(b) Impairment of Rights. Neither Funding Trust nor the Company shall take
any action, or fail to take any action, if such action or failure to take action
may (i) interfere with the enforcement of any rights under the Transaction
Documents that are material to the rights, benefits or obligations of the
Indenture Trustee, the Certificateholder, the Noteholders or Financial Security,
(ii) result in a Material Adverse Change in respect of the Receivables, or (iii)
impair the ability of the Company or Funding Trust to perform their respective
obligations under the Transaction Documents, including any consolidation, merger
with any Person or any transfer of all or any material amount of the assets of
the Company or Funding Trust to any other Person if such consolidation, merger
or transfer would materially impair the net worth of the Company or Funding
Trust or any successor Person obligated, after such event, to perform such
Person's obligations under the Transaction Documents.
(c) Waiver, Amendments, Etc. Neither Funding Trust nor the Company shall
waive, modify or amend, or consent to any waiver, modification or amendment of,
any of the provisions of any of the Transaction Documents.
20
(d) Successors. Neither Funding Trust nor the Company shall terminate or
designate, or consent to the termination or designation of, the Servicer,
Back-up Servicer, Collateral Agent, the Owner Trustee or any successor thereto
without the prior approval of Financial Security.
(e) Creation of Indebtedness; Guarantees. Funding Trust shall not create,
incur, assume or suffer to exist any indebtedness other than indebtedness
guaranteed or approved in writing by Financial Security other than the
Transaction Documents. Without the prior written consent of Financial Security,
the Trustee and Funding Trust shall not assume, guarantee, endorse or otherwise
be or become directly or contingently liable for the obligations of any Person
by, among other things, agreeing to purchase any obligation of another Person,
agreeing to advance funds to such Person or causing or assisting such Person to
maintain any amount of capital.
(f) Subsidiaries. Funding Trust shall not form, or cause to be formed, any
Subsidiaries.
(g) [Reserved].
(h) No Mergers. Funding Trust shall not consolidate with or merge into any
Person or transfer all or any material amount of its assets to any Person or
liquidate or dissolve except as permitted by the Funding Trust Agreement and as
contemplated by the Transaction Documents.
(i) Other Activities. Funding Trust 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 other than in connection with
the Transaction Documents, documents entered into with respect to the Other
Transactions and as permitted by its Trust Agreement.
(j) Insolvency. No AmeriCredit Party shall commence with respect to the
Company or Funding Trust, as the case may be, any case, proceeding or other
action (A) under any existing or future law of any jurisdiction, domestic or
foreign, relating to the bankruptcy, insolvency, reorganization or relief of
debtors, seeking to have an order for relief entered with respect to it, or
seeking reorganization, arrangement, adjustment, winding-up, liquidation,
dissolution, corporation or other relief with respect to it or (B) seeking
appointment of a receiver, trustee, custodian or other similar official for it
or for all or any substantial part of its assets, or make a general assignment
for the benefit of its creditors. No AmeriCredit Party shall take any action in
furtherance of, or indicating the consent to, approval of, or acquiescence in
any of the acts set forth above. Neither Funding Trust nor the Company shall
admit in writing its inability to pay its debts.
Section 2.10 Representations and Warranties of AmeriCredit. AmeriCredit
represents, warrants and covenants, as of the date hereof and as of the Date of
Issuance, as follows:
21
(a) Due Organization and Qualification. AmeriCredit is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Texas, with power and authority to own its properties and conduct its business.
AmeriCredit is duly qualified to do business, is in good standing and has
obtained all necessary licenses, permits, charters, registrations and approvals
(together, "approvals") necessary for the conduct of its business as currently
conducted 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 otherwise have a material adverse effect upon the Transaction.
(b) Power and Authority. AmeriCredit has all necessary corporate power and
authority to conduct its business as currently conducted, to execute, deliver
and perform its obligations under this Agreement and each other Transaction
Document to which it is a party and to carry out the terms of each such Document
and has full power and authority to consummate the Transaction.
(c) Due Authorization. The execution, delivery and performance by
AmeriCredit of this Agreement and each other Transaction Document to which it is
a party have been duly authorized by all necessary corporate 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 stockholders of such Person.
(d) Noncontravention. Neither the execution nor delivery of this Agreement
and each other Transaction Document to which AmeriCredit is a party, nor the
consummation of the Transaction nor the satisfaction of the terms and conditions
of this Agreement and each other Transaction Document to which AmeriCredit is a
party,
(i) conflicts with or results, or will conflict with or result, in any
breach or violation of any provision of the Certificate of Incorporation or
Bylaws of AmeriCredit or any law, rule, regulation, order, writ, judgment,
injunction, decree, determination or award currently in effect having
applicability to AmeriCredit, or any of its properties, including
regulations issued by an administrative agency or other governmental
authority having supervisory powers over AmeriCredit,
(ii) constitutes or will constitute a default by AmeriCredit under, or
a breach of any provision of, any loan agreement, mortgage, indenture or
other agreement or instrument to which AmeriCredit or any of its
Subsidiaries is a party or by which it or any of its or their properties is
or may be bound or affected, or
(iii) results in or requires, or will result in or require, the
creation of any Lien upon, or in respect of, any of the assets of
AmeriCredit or any of its Subsidiaries except as otherwise expressly
contemplated by the Transaction Documents.
22
(e) Legal Proceedings. There is no action, proceeding or investigation
pending, or to the best knowledge of AmeriCredit after reasonable inquiry,
threatened by or before any court, regulatory body, governmental or
administrative agency or arbitrator against or affecting AmeriCredit, or any
properties or rights of AmeriCredit which is likely to result in a Material
Adverse Change with respect to AmeriCredit, or which might adversely affect the
federal or state tax attributes of the Securities.
(f) Valid and Binding Obligations. Each of the Transaction Documents to
which AmeriCredit is a party, when executed and delivered by it, and assuming
due authorization, execution and delivery by the other parties thereto, will
constitute the legal, valid and binding obligations of AmeriCredit, enforceable
in accordance with its 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. The
Certificate, when executed, authenticated and delivered in accordance with the
Trust Agreement, will be validly issued and outstanding and entitled to the
benefits of the Trust Agreement and will evidence the entire beneficial
ownership interest in the Trust. The Notes when executed, authenticated and
delivered in accordance with the Indenture, will be entitled to the benefits of
the Indenture and will constitute legal, valid and binding obligations of the
Trust, enforceable in accordance with their terms, except as limited by
applicable bankruptcy, insolvency, reorganization, moratorium and similar laws
affecting the enforcement of creditors' rights generally or general equitable
principles (whether in a proceeding at law or in equity) and except to the
extent that rights to indemnity and contribution may be limited by public
policy.
(g) Financial Statements. The Financial Statements of AmeriCredit, copies
of which have been furnished to Financial Security, (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 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 such financial
condition or results of operations. Except as disclosed in the Financial
Statements, AmeriCredit is 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.
(h) ERISA. AmeriCredit is in compliance with ERISA and has not incurred and
does not reasonably expect to incur any liabilities to the PBGC under ERISA in
connection with any Plan or Multiemployer Plan.
(i) Accuracy of Information. None of the Provided Documents contain any
statement of a material fact with respect to AmeriCredit or the Transaction that
was untrue or misleading in any material respect when made (except insofar as
any such Document was connected to, or superseded by, a subsequent Provided
Document). Since the furnishing of the Provided Documents, there has been no
change, or any development or event involving a prospective change known to
AmeriCredit that would render any
23
representation or warranty or other statement made by it in any of the Provided
Documents untrue or misleading in any material respect. There is no fact known
to AmeriCredit which has a material possibility of causing a Material Adverse
Change with respect to it (for purposes of the foregoing representation and
warranty, Material Adverse Change shall be determined only with respect to
AmeriCredit, but not any of its Subsidiaries individually) or which has a
material possibility of impairing the value or marketability of the Receivables,
taken as a whole, or decreasing the possibility that amounts due in respect of
the Receivables will be collected as due.
(j) Compliance With Securities Laws. Neither the Trust nor AmeriCredit is
required to be registered as an "investment company" under the Investment
Company Act and the Trust is not subject to the information reporting
requirements of the Securities Exchange Act.
(k) Transaction Documents. Each of the representations and warranties of
AmeriCredit contained in the Transaction Documents is true and correct in all
material respects and AmeriCredit hereby makes each such representation and
warranty made by it to, and for the benefit of, Financial Security as if the
same were set forth in full herein.
(l) 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 non-governmental person, is
required in connection with the execution, delivery and performance by
AmeriCredit of this Agreement or of any other Transaction Document to which it
is a party, except (in each case) such as have been obtained and are in full
force and effect.
(m) Compliance With Law, Etc. No practice, procedure or policy employed or
proposed to be employed by AmeriCredit in the conduct of its business violates
any law, regulation, judgment, agreement, order or decree applicable to it
which, if enforced, would result in a Material Adverse Change with respect to
AmeriCredit.
(n) Solvency; Fraudulent Conveyance. AmeriCredit is solvent and will not be
rendered insolvent by the Transaction and, after giving effect to the
Transaction, AmeriCredit will not be left with an unreasonably small amount of
capital with which to engage in its business. AmeriCredit does not intend to
incur, or believe that it has incurred, debts beyond its ability to pay such
debts as they mature. AmeriCredit 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 AmeriCredit or any of its assets. AmeriCredit is not entering into
the Transaction Documents or consummating the transactions contemplated thereby
with any intent to hinder, delay or defraud any of AmeriCredit's creditors.
(o) Taxes. AmeriCredit has filed all federal and state tax returns which
are required to be filed and paid all taxes, in each case with respect to the
includible group of which AmeriCredit is a member, including any assessments
received by it, to the extent that such taxes have become due other than taxes
that it shall currently be contesting the
24
validity thereof in good faith by appropriate proceedings and shall have set
aside on its books adequate reserves with respect thereto. Any taxes, fees and
other governmental charges payable by AmeriCredit in connection with the
Transaction and the execution and delivery of the Transaction Documents have
been paid or shall have been paid at or prior to the Date of Issuance.
(p) [Reserved].
(q) [Reserved].
(r) Compliance with Anti-Money Laundering Laws. No practice, procedure or
policy employed or proposed to be employed by AmeriCredit in the conduct of its
business constitutes a material violation of any anti-money laundering law or
regulation (including without limitation, the USA PATRIOT Act, Public Law No.
107-56 (2001), and regulations promulgated thereunder) applicable to
AmeriCredit.
Section 2.11 Affirmative Covenants of AmeriCredit. AmeriCredit hereby
agrees, during the Term of this Agreement, unless Financial Security shall
otherwise expressly consent in writing, as follows:
(a) Compliance With Agreements and Applicable Laws. AmeriCredit shall
perform each of its respective obligations under the Transaction Documents and
shall comply with all material requirements of any law, rule or regulation
applicable to it or thereto, or that are required in connection with its
performance under any of the Transaction Documents. AmeriCredit will not cause
or permit to become effective any amendment to or modification of any of the
Transaction Documents to which it is a party unless Financial Security shall
have previously approved in writing the form of such amendment or modification.
AmeriCredit shall not take any action or fail to take any action that would
interfere with the enforcement of any rights under the Transaction Documents.
(b) Financial Statements; Accountants' Reports; Other Information.
AmeriCredit shall keep, or cause to be kept, in reasonable detail books and
records of account of its assets and business, and shall clearly reflect therein
the transfer of the Receivables to the Trust and the sale of the Securities to
the Underwriters as a sale of Funding Trust's interest in the Receivables
evidenced by the Securities. AmeriCredit shall deliver to Financial Security,
simultaneously with the delivery of such documents to the relevant federal or
state department or agency copies of all Annual Reports on Form 10-K, Quarterly
Reports on Form 10-Q, and periodic reports on Form 8-K (upon request) required
to be filed by AmeriCredit with the Commission. AmeriCredit shall also furnish
or cause to be furnished to Financial Security:
(i) Annual Financial Statements. As soon as available, and in any
event within 120 days after the close of each fiscal year of AmeriCredit,
the audited balance sheets of AmeriCredit as of the end of such fiscal year
and the audited statements of income, shareholders' equity and cash flows
of AmeriCredit for such fiscal year, all in reasonable detail and stating
in comparative form the
25
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 of
independent accountants (which shall be a nationally recognized firm or
otherwise acceptable to Financial Security) for AmeriCredit and by the
certificate specified in Section 2.11(c) hereof.
(ii) Quarterly Financial Statements. As soon as available, and in any
event within 45 days after the close of the first three quarters of each
fiscal year of AmeriCredit, the unaudited balance sheets of AmeriCredit as
of the end of each such quarter and the unaudited statements of income and
cash flows of AmeriCredit for the portion of the fiscal year then ended,
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 (subject to normal year-end adjustments), and
accompanied by the certificate specified in Section 2.11(c) hereof if such
certificate is required to be provided pursuant to such Section.
(iii) Accountants' Reports. If a Special Event has occurred, upon the
request of Financial Security, the balance sheets of AmeriCredit as of the
end of AmeriCredit's most recent fiscal year (and the most recent fiscal
half) and the statements of income, shareholders' equity and cash flows of
AmeriCredit for such fiscal year (and for such half), 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, in the case of financial statements as of the end of a fiscal
year, audited and accompanied by the certificate of independent accountants
(which shall be a nationally recognized firm or otherwise acceptable to
Financial Security) for AmeriCredit.
(iv) Other Information. Promptly upon receipt thereof, copies of all
reports, statements, certifications, schedules, or other similar items
delivered to or by AmeriCredit pursuant to the terms of the Transaction
Documents and, promptly upon request, such other data as Financial Security
may reasonably request; provided, however, that AmeriCredit shall not be
required to deliver any such items if provision by some other party to
Financial Security is required under the Transaction Documents unless such
other party wrongfully fails to deliver such item. AmeriCredit shall, upon
the request of Financial Security, permit Financial Security or its
authorized agents to inspect its books and records as they may relate to
the Securities, the Receivables, the obligations of AmeriCredit under the
Transaction Documents or the Transaction. Such inspections and discussions
shall be conducted during normal business hours and shall not unreasonably
disrupt the business of AmeriCredit. The fees and expenses of Financial
Security or any such authorized agents shall be for the account of
AmeriCredit. In addition, AmeriCredit shall promptly (but in no case more
than 30 days following issuance or receipt by a Commonly Controlled Entity)
provide to Financial Security a copy of all correspondence between a
Commonly
26
Controlled Entity and the PBGC, IRS, Department of Labor or the
administrators of a Multiemployer Plan relating to any Reportable Event or
the underfunded status, termination or possible termination of a Plan or a
Multiemployer Plan. The books and records of AmeriCredit will be maintained
at the address for it designated herein for receipt of notices, unless it
shall otherwise advise the parties hereto in writing.
(v) AmeriCredit shall provide, or cause to be provided, to Financial
Security an executed original copy of each document executed in connection
with the Transaction within 30 days after the date of closing.
(c) Compliance Certificate. AmeriCredit shall deliver to Financial Security
concurrently with the delivery of the financial statements required pursuant to
Section 2.11(b)(i) hereof (and concurrently with the delivery of the financial
statements required pursuant to Section 2.11(b)(ii) hereof, if a Special Event
has occurred), a certificate signed by an officer of AmeriCredit stating that
the attached financial reports submitted in accordance with Section 2.11(b)(i)
or (ii) hereof, as applicable, are complete and correct in all material respects
and present fairly the financial condition and results of operations of
AmeriCredit as of the dates and for the periods indicated, in accordance with
generally accepted accounting principles consistently applied (subject as to
interim statements to normal year-end adjustments).
(d) Notice of Material Events. AmeriCredit shall promptly inform Financial
Security in writing of the occurrence of any of the following:
(i) the submission of any claim or the initiation of any legal
process, litigation or administrative or judicial investigation (A) against
AmeriCredit pertaining to the Receivables in general, (B) with respect to a
material portion of the Receivables, or (C) in which a request has been
made for certification as a class action (or equivalent relief) that would
involve a material portion of the Receivables;
(ii) any change in the location of AmeriCredit's principal office or
any change in the location of the books and records of AmeriCredit;
(iii) the occurrence of any Default or Special Event; or
(iv) any other event, circumstance or condition that has resulted, or
which AmeriCredit reasonably believes is likely to result, in a Material
Adverse Change in respect of AmeriCredit (for purposes of the foregoing
representation and warranty, Material Adverse Change shall be determined
only with respect to AmeriCredit, but not any of its Subsidiaries
individually).
(e) Further Assurances. AmeriCredit shall, upon the request of Financial
Security, from time to time, execute, acknowledge and deliver, or cause to be
executed, acknowledged and delivered, within thirty (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
27
Documents. In addition, AmeriCredit agrees to cooperate with S&P, Fitch and
Xxxxx'x in connection with any review of the Transaction which may be undertaken
by S&P, Fitch and Xxxxx'x after the date hereof.
(f) Corporate Existence. AmeriCredit shall maintain its corporate existence
and shall at all times continue to be duly organized under the laws of the State
of Texas and duly qualified and duly authorized (as described in Sections
2.10(a), (b) and (c) hereof) and shall conduct its business in accordance with
the terms of its Certificate of Incorporation and Bylaws.
(g) Maintenance of Licenses. AmeriCredit shall maintain all licenses,
permits, charters and registrations which are material to the performance by it
of its obligations under this Agreement and each other Transaction Document to
which is a party or by which it is bound.
(h) Notice of Merger or Consolidation of Trust. AmeriCredit (i) shall
promptly inform Financial Security in writing of the occurrence of (a) the Trust
consolidating or merging with or into any other Person or (b) the Trust
conveying or transferring all or substantially all of its properties or assets,
including those included in the Trust Estate, to any Person, as set forth in
Section 3.10 of the Indenture; and (ii) shall obtain the necessary consents of
Financial Security to effect such actions.
(i) For so long as AmeriCredit has any securitization transactions
(including warehouse facilities) outstanding as to which Financial Security has
provided credit enhancements and any of the securitized receivables remain on
AmeriCredit's consolidated balance sheet, AmeriCredit shall include disclosure
with respect to such on-balance sheet securitizations, in (i) any financial
statement provided to a creditor of AmeriCredit and (ii) all financial
statements included as part of its Form 10-Qs and Form 10-Ks subsequently filed
by AmeriCredit with the Commission, in a form substantially as follows:
"AmeriCredit structures its securitization transactions and its warehouse
facilities as secured financings that do not meet the accounting criteria for
sale of finance receivables. Accordingly, following a securitization or the
pledging of receivables to a warehouse facility, the finance receivables are
transferred to special purpose finance subsidiaries of the AmeriCredit and the
related securitization notes payable or warehouse credit, issued by special
purpose finance subsidiaries, remain on the consolidated balance sheet. While
these subsidiaries are included in AmeriCredit 's consolidated financial
statements, these subsidiaries are separate legal entities and the finance
receivables and other assets held by them are legally owned by these
subsidiaries, are available to satisfy the related securitization notes payable
or the warehouse credit issued and are not available to creditors of AmeriCredit
or its other subsidiaries."
Section 2.12 Negative Covenants of AmeriCredit. AmeriCredit hereby agrees,
during the Term of this Agreement, unless Financial Security shall otherwise
expressly consent in writing, as follows:
(a) Impairment of Rights. AmeriCredit shall not take any action, or fail to
take any action, if such action or failure to take action may (i) interfere with
the
28
enforcement of any rights under the Transaction Documents that are material to
the rights, benefits or obligations of the Trustee, the Certificateholder or
Financial Security, (ii) result in a Material Adverse Change in respect of the
Receivables or (iii) impair the ability of AmeriCredit to perform its respective
obligations under the Transaction Documents, including any consolidation, merger
with any Person or any transfer of all or any material amount of the assets of
AmeriCredit to any other Person if such consolidation, merger or transfer would
materially impair the net worth of AmeriCredit or any successor Person
obligated, after such event, to perform such Person's obligations under the
Transaction Documents.
(b) Waiver, Amendments, Etc. AmeriCredit shall not waive, modify or amend,
or consent to any waiver, modification or amendment of, any of the provisions of
any of the Transaction Documents.
(c) Insolvency. AmeriCredit shall not commence with respect to the Company,
Funding Trust or AFS Funding, any case, proceeding or other action (i) under any
existing or future law of any jurisdiction, domestic or foreign, relating to the
bankruptcy, insolvency, reorganization or relief of debtors, seeking to have an
order for relief entered with respect to any of the Company, the Trust, Funding
Trust or AFS Funding, as the case may be, or seeking reorganization,
arrangement, adjustment, winding-up, liquidation, dissolution, corporation or
other relief with respect to any of the Company, the Trust, Funding Trust or AFS
Funding, as the case may be, or (ii) seeking appointment of a receiver, trustee,
custodian or other similar official for any of the Trust, the Company, the Trust
or AFS Funding, as the case may be, or for all or any substantial part of their
respective assets, or make a general assignment for the benefit of their
respective creditors. AmeriCredit shall not take any action in furtherance of,
or indicating the consent to, approval of, or acquiescence in any of the acts
set forth above.
(d) Compliance with Anti-Money Laundering Laws. AmeriCredit will not employ
any practice, procedure or policy in the conduct of its business that would
constitutes a material violation of any anti-money laundering law or regulation
(including without limitation, the USA PATRIOT Act, Public Law No. 107-56
(2001), and regulations promulgated thereunder) applicable to AmeriCredit.
ARTICLE III
THE POLICIES; REIMBURSEMENT; INDEMNIFICATION
Section 3.1 Issuance of the Policy. Financial Security agrees to issue the
Policy subject to satisfaction of the conditions precedent set forth in Appendix
A hereto.
Section 3.2 Payment of Fees and Premium.
(a) [Reserved].
29
(b) Legal Fees. On the Date of Issuance, AmeriCredit shall pay or cause to
be paid legal fees and disbursements incurred by Financial Security in
connection with the issuance of the Policy up to an amount equal to $40,000.00,
plus disbursements, unless otherwise agreed between AmeriCredit and Financial
Security.
(c) Rating Agency Fees. The initial fees of S&P, Xxxxx'x and Fitch with
respect to the Securities and the transactions contemplated hereby shall be paid
by AmeriCredit in full on the Date of Issuance, or otherwise provided for to the
satisfaction of Financial Security. All periodic and subsequent fees of S&P,
Xxxxx'x or Fitch with respect to, and directly allocable to, the Securities
shall be for the account of, and shall be billed to, AmeriCredit. The fees for
any other rating agency shall be paid by the party requesting such other
agency's rating, unless such other agency is a substitute for S&P, Xxxxx'x or
Fitch in the event that S&P, Xxxxx'x or Fitch is no longer rating the
Securities, in which case the cost for such substitute agency shall be paid by
AmeriCredit.
(d) Auditors' Fees. In the event that Financial Security's auditors are
required to provide information or any consent in connection with the Offering
Document prepared prior to the Date of Issuance, fees therefor not exceeding
$4,000.00 shall be paid by AmeriCredit. AmeriCredit shall pay on demand any
additional fees of Financial Security's auditors payable in respect of any
Offering Document that are incurred after the Date of Issuance. It is understood
that Financial Security's auditors shall not incur any additional fees in
respect of future Offering Documents except at the request of or with the
consent of AmeriCredit.
(e) Premium. In consideration of the issuance by Financial Security of the
Policy, Financial Security shall be entitled to receive the Premium as and when
due in accordance with the terms of the Premium Letter first (i) in accordance
with the provisions of Section 5.7(b) of the Sale and Servicing Agreement and
(ii) to the extent such amounts are insufficient, directly from AmeriCredit. The
Premium paid under the Sale and Servicing Agreement shall be nonrefundable
without regard to whether Financial Security makes any payment under the Policy
or any other circumstances relating to the Securities or provision being made
for payment of the Securities prior to maturity.
Section 3.3 Reimbursement and Additional Payment Obligation. AmeriCredit
agrees to pay to Financial Security the following amounts as and when incurred:
(a) a sum equal to the total of all amounts paid by Financial Security
under the Policy;
(b) any and all out-of-pocket charges, fees, costs and expenses that
Financial Security or its affiliates may reasonably pay or incur, including, but
not limited to, attorneys' and accountants' fees and expenses, in connection
with (i) in the event of payments under the Policy, any accounts established to
facilitate payments under the Policy, to the extent Financial Security has not
been immediately reimbursed on the date that any amount is paid by Financial
Security under the Policy, or other administrative expenses relating to such
payments under the Policy, (ii) the prepayment of any
30
borrowings made or implementation or cancellation of any financial contracts for
limiting interest rate risk (including, without limitation, any interest rate
swaps and xxxxxx) entered into in connection with, or (following an Event of
Default) in anticipation of, funding payments under the Policy, (iii) 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 or
the Transaction, (iv) any amendment, waiver or other action with respect to, or
related to, any Transaction Document whether or not executed or completed, or
(v) any review or investigation made by Financial Security in those
circumstances where its approval or consent is sought under any of the
Transaction Documents; costs and expenses shall include the reasonable fees and
expenses charged by Transaction Services Corporation, an affiliate of Financial
Security, spent in connection with the actions described in clause (iii) above;
(c) interest on any and all amounts described in Section 3.3(a) or Section
3.2(b), or in connection with any Insurer Optional Deposit by Financial
Security, from the date due to Financial Security pursuant to the provisions
hereof until payment thereof in full, payable to Financial Security at the Late
Payment Rate per annum; and
(d) any payments made by Financial Security on behalf of, or advanced to,
the Company, in its capacity as Servicer, or the Trustee, including, without
limitation, any amounts payable by the Company, in its capacity as Servicer, or
the Trustee pursuant to the Securities or any other Transaction Documents; and
any payments made by Financial Security as, or in lieu of, any servicing,
management, trustee, custodial or administrative fees payable, in the sole
discretion of Financial Security to third parties in connection with the
Transaction.
All such amounts are to be immediately due and payable without demand, in
full, without any requirement on the part of Financial Security to seek
reimbursement of such amounts from any other source of reimbursement or
indemnity or to allocate such amount to any other transaction that may have
benefited from the expenditure of such amounts.
Section 3.4 Certain Obligations Not Recourse to AmeriCredit.
Notwithstanding any provision of Section 3.3 or Section 3.5 to the contrary, the
payment obligations provided in Section 3.3(a), 3.3(b)(ii) and 3.3(d) (to the
extent of advances to the Trustee in respect of payments on the Securities), and
any interest on the foregoing in accordance with Section 3.3(c), and the
indemnification obligation provided in Section 3.5(a)(ii)(B) shall not be
recourse to any AmeriCredit Party, but shall be payable in the manner and in
accordance with priorities provided in the Sale and Servicing Agreement in each
case, to the extent that such payment obligations do not arise from any failure
or default in performance by an AmeriCredit Party of any of its obligations
under the Transaction Documents.
31
Section 3.5 Indemnification.
(a) Indemnification by AmeriCredit. In addition to any and all rights of
reimbursement, indemnification, subrogation and any other rights pursuant hereto
or under law or in equity, each AmeriCredit Party agrees to pay, and to protect,
indemnify and save harmless, Financial Security and its officers, directors,
shareholders, employees, agents and each Person, if any, who controls Financial
Security 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 expenses (including, without limitation, fees and expenses of
attorneys, consultants and auditors and reasonable costs of investigations) of
any nature arising out of or relating to the transactions contemplated by the
Transaction Documents by reason of:
(i) the negligence, bad faith, willful misconduct, misfeasance,
malfeasance or theft committed by any director, officer, employee or agent
of the Trust, AmeriCredit, the Company, or Funding Trust, as the case may
be;
(ii) (A) the breach by the Trust, AmeriCredit, the Company or Funding
Trust, as the case may be, of any representation, warranty or covenant
under any of the Transaction Documents or (B) the occurrence, in respect of
the Trust, AmeriCredit, the Company or Funding Trust, as the case may be,
under any of the Transaction Documents of any "event of default" or any
event which, with the giving of notice or the lapse of time or both, would
constitute any "event of default"; or
(iii) any untrue statement or alleged untrue statement of a material
fact contained in any Offering Document or 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
claims arise out of or are based upon any untrue statement or omission in
information included in an Offering Document and furnished by Financial
Security in writing expressly for use therein (all such information so
furnished being referred to herein as "Financial Security Information"), it
being understood that, in respect of the initial Offering Document, the
Financial Security Information is limited to the information included under
the caption "The Insurer" and the financial statements of Financial
Security incorporated therein by reference or appended thereto.
(b) Conduct of Actions or Proceedings. If any action or proceeding
(including any governmental investigation) shall be brought or asserted against
Financial Security, any officer, director, shareholder, employee or agent of
Financial Security or any Person controlling Financial Security (individually,
an "Indemnified Party" and, collectively, the "Indemnified Parties") in respect
of which indemnity may be sought from an AmeriCredit Party (the "Indemnifying
Party") hereunder, Financial Security shall promptly notify the Indemnifying
Party in writing, and the Indemnifying Party shall assume the defense thereof,
including the employment of counsel satisfactory to Financial Security and the
payment of all expenses. An Indemnified Party shall have the
32
right to employ separate counsel in any such action and to participate in the
defense thereof at the expense of the Indemnified Party; provided, however, that
the fees and expenses of such separate counsel shall be at the expense of the
Indemnifying Party if (i) the Indemnifying Party has agreed to pay such fees and
expenses, (ii) the Indemnifying Party shall have failed to assume the defense of
such action or proceeding and employ counsel satisfactory to Financial Security
in any such action or proceeding or (iii) the named parties to any such action
or proceeding (including any impleaded parties) include both the Indemnified
Party and the Indemnifying Party, and the Indemnified Party shall have been
advised by counsel that (A) there may be one or more legal defenses available to
it which are different from or additional to those available to the Indemnifying
Party and (B) the representation of the Indemnifying Party and the Indemnified
Party by the same counsel would be inappropriate or contrary to prudent practice
(in which case, if the Indemnified Party notifies the Indemnifying Party in
writing that it elects to employ separate counsel at the expense of the
Indemnifying Party, the Indemnifying Party shall not have the right to assume
the defense of such action or proceeding on behalf of such Indemnified Party, it
being understood, however, that the Indemnifying Party shall not, in connection
with any one such action or proceeding or separate but substantially similar or
related actions or proceedings in the same jurisdiction arising out of the same
general allegations or circumstances, be liable for the reasonable fees and
expenses of more than one separate firm of attorneys at any time for the
Indemnified Parties, which firm shall be designated in writing by Financial
Security). The Indemnifying Party shall not be liable for any settlement of any
such action or proceeding effected without its written consent to the extent
that any such settlement shall be prejudicial to the Indemnifying Party, but, if
settled with its written consent, or if there be a final judgment for the
plaintiff in any such action or proceeding with respect to which the
Indemnifying Party shall have received notice in accordance with this subsection
(b), the Indemnifying Party agrees to indemnify and hold the Indemnified Parties
harmless from and against any loss or liability by reason of such settlement or
judgment.
(c) Contribution. To provide for just and equitable contribution if the
indemnification provided by the Indemnifying Party is determined to be
unavailable for any Indemnified Party (other than due to application of this
Section), the Indemnifying Party shall contribute to the losses incurred by the
Indemnified Party on the basis of the relative fault of the Indemnifying Party,
on the one hand, and the Indemnified Party, on the other hand.
Section 3.6 Subrogation. Subject only to the priority of payment provisions
of the Sale and Servicing Agreement, each of the Trust, AmeriCredit, the Company
and Funding Trust acknowledges that, to the extent of any payment made by
Financial Security pursuant to the Policy, Financial Security is to be fully
subrogated to the extent of such payment and any additional interest due on any
late payment, to the rights of the Noteholders to any moneys paid or payable in
respect of the Notes, under the Transaction Documents or otherwise. Each of the
Trust, AmeriCredit, the Company and Funding Trust agrees to such subrogation
and, further, agrees to execute such instruments and to take such actions as, in
the sole judgment of Financial Security, are necessary to evidence such
subrogation and to perfect the rights of Financial Security to receive any
moneys
33
paid or payable in respect of the Securities under the Transaction Documents or
otherwise.
ARTICLE IV
FURTHER AGREEMENTS
Section 4.1 Effective Date; Term of Agreement. This Agreement shall take
effect on the Date of Issuance and shall remain in effect until the later of (a)
such time as Financial Security is no longer subject to a claim under the Policy
and the Policy shall have been surrendered to Financial Security for
cancellation and (b) all amounts payable to Financial Security and the
Certificateholder under the Transaction Documents and under the Securities have
been paid in full; provided, however, that the provisions of Sections 3.2, 3.3
and 3.5 hereof shall survive any termination of this Agreement.
Section 4.2 Obligations Absolute.
(a) The payment obligations of AmeriCredit hereunder shall be absolute and
unconditional, and shall be paid strictly in accordance with this 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 Securities or the Policy; (ii)
any exchange or release of any other obligations hereunder; (iii) the existence
of any claim, setoff, defense, reduction, abatement or other right which any of
the Trust, AmeriCredit, the Company or Funding Trust may have at any time
against Financial Security or any other Person; (iv) any document presented in
connection with the Policy proving to be forged, fraudulent, invalid or
insufficient in any respect, including any failure to strictly comply with the
terms of the Policy, or any statement therein being untrue or inaccurate in any
respect; (v) any failure of Funding Trust to receive the proceeds from the sale
of the Securities; (vii) any breach by the Trust, AmeriCredit, the Company or
Funding Trust of any representation, warranty or covenant contained in any of
the Transaction Documents; or (viii) any other circumstances, other than payment
in full, which might otherwise constitute a defense available to, or discharge
of, the Trust, AmeriCredit, the Company or Funding Trust in respect of any
Transaction Document.
(b) Each of the Trust, AmeriCredit, the Company and Funding Trust and any
and all others who are now or may become liable for all or part of the
obligations of AmeriCredit, the Company and Funding Trust under this Agreement
agrees to be bound by this Agreement and (i) to the extent permitted by law,
waives and renounces any and all redemption and exemption rights and the benefit
of all valuation and appraisement privileges against the indebtedness, if any,
and obligations evidenced by any Transaction Document or by any extension or
renewal thereof; (ii) waives presentment and demand for payment, notices of
nonpayment and of dishonor, protest of dishonor and notice of protest; (iii)
waives 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) waives
all rights of abatement, diminution, postponement or deduction, or to any
defense other than
34
payment, or to 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 AmeriCredit, the Company
or Funding Trust; (v) agrees that any consent, waiver or forbearance hereunder
with respect to an event shall operate only for such event and not for any
subsequent event; (vi) consents to any and all extensions of time that may be
granted by Financial Security 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 (vii) consents
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 agrees that the addition of any such
obligors or security shall not affect the liability of the parties hereto for
any payment hereunder.
(c) Nothing herein shall be construed as prohibiting the Trust,
AmeriCredit, the Company or Funding Trust from pursuing any rights or remedies
it may have against any Person other than Financial Security in a separate legal
proceeding.
Section 4.3 Assignments; Reinsurance; Third-Party Rights.
(a) This 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 the Trust,
AmeriCredit, the Company or Funding Trust may assign its rights under this
Agreement, or delegate any of its duties hereunder, without the prior written
consent of Financial Security. Any assignment made in violation of this
Agreement shall be null and void.
(b) Financial Security shall have the right to give participations in its
rights under this Agreement and to enter into contracts of reinsurance with
respect to the Policy upon such terms and conditions as Financial Security may
in its discretion determine; provided, however, that no such participation or
reinsurance agreement or arrangement shall relieve Financial Security of any of
its obligations hereunder or under the Policy.
(c) In addition, Financial Security 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 Financial Security in connection therewith any
rights of Financial Security under the Transaction Documents or with respect to
any real or personal property or other interests pledged to Financial Security,
or in which Financial Security has a security interest, in connection with the
Transaction.
(d) Except as provided herein with respect to participants and reinsurers,
nothing in this Agreement shall confer any right, remedy or claim, express or
implied, upon any Person, including, particularly, any Noteholder or the
Certificateholder, other than Financial Security, against the Trust,
AmeriCredit, the Company or Funding Trust, 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. None of the Indenture Trustee, the Owner Trustee nor any Noteholder
35
or the Certificateholder shall have any right to payment from any premiums paid
or payable hereunder or from any other amounts paid by AmeriCredit pursuant to
Section 3.2, 3.3 or 3.5 hereof.
Section 4.4 Liability of Financial Security. Neither Financial Security nor
any of its officers, directors or employees shall be liable or responsible for:
(a) the use which may be made of the Policy by the Indenture Trustee or the
Owner Trustee or for any acts or omissions of the Indenture Trustee or the Owner
Trustee in connection therewith or (b) the validity, sufficiency, accuracy or
genuineness of documents delivered to Financial Security (or its Fiscal Agent)
in connection with any claim under the Policy, 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 Financial Security
had actual knowledge thereof). In furtherance and not in limitation of the
foregoing, Financial Security (or its Fiscal Agent) may accept documents that
appear on their face to be in order, without responsibility for further
investigation.
ARTICLE V
EVENTS OF DEFAULT; REMEDIES
Section 5.1 Events of Default. The occurrence of any of the following
events shall constitute an Event of Default hereunder:
(a) any demand for payment shall be made under the Policy;
(b) any representation, warranty or covenant made by any of the Trust,
AmeriCredit, the Company, Funding Trust or AFS Funding under any of the
Transaction Documents, or in any certificate or report furnished under any of
the Transaction Documents, shall prove to be untrue or incorrect in any material
respect; provided, however, that if the Trust, AmeriCredit, the Company, Funding
Trust or AFS Funding, as the case may be, effectively cures any such defect in
any representation or warranty under any Transaction Document, or certificate or
report furnished under any Transaction Document, within the time period
specified in the relevant Transaction Document as the cure period therefor, such
defect shall not in and of itself constitute an Event of Default hereunder;
(c) (i) any of the Trust, AmeriCredit, the Company or Funding Trust shall
fail to pay when due any amount payable under any of the Transaction Documents
unless such amounts are paid in full within any applicable cure period
explicitly provided for under the relevant Transaction Document; (ii) the Trust,
AmeriCredit, the Company, Funding Trust or AFS Funding 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) any court, governmental authority or agency
having jurisdiction over any of the parties to any of the Transaction Documents
or any property thereof shall find or rule that any material provision of any of
the Transaction Documents is not valid and binding on the parties thereto;
36
(d) any of the Trust, AmeriCredit, the Company, Funding Trust or AFS
Funding shall fail to perform or observe any other covenant or agreement
contained in any of the Transaction Documents (except for the obligations
described under clause (c)(i) above or clause (m) below) and such failure shall
continue for a period of 30 days after written notice given to the Trust or
Funding Trust by Financial Security (which notice shall be forwarded to
AmeriCredit and the Company by the Trust, Funding Trust or AFS Funding, provided
however, that, such forwarding shall not be a condition to the occurrence of an
Event of Default under this Section 5.1(d)), as the case may be; provided,
however, that, if such failure shall be of a nature that it cannot be cured
within 30 days, such failure shall not constitute an Event of Default hereunder
if within such 30-day period the Trust or Funding Trust, as the case may be,
shall have given notice to Financial Security of corrective action it proposes
to take, which corrective action is agreed in writing by Financial Security to
be satisfactory and the Trust or Funding Trust, as the case may be, shall
thereafter pursue such corrective action diligently until such default is cured;
(e) any of the Trust, AmeriCredit, the Company or Funding Trust shall fail
to pay its debts generally as they come due, or shall admit in writing its
inability to pay its debts generally, or shall make a general assignment for the
benefit of creditors, or shall institute any proceeding seeking to adjudicate it
insolvent or seeking a liquidation, or shall take advantage of any insolvency
act, or shall commence a case or other proceeding naming it as debtor under the
United States Bankruptcy Code or similar law, domestic or foreign, or a case or
other proceeding shall be commenced against any of the Trust, AmeriCredit, the
Company or Funding Trust under the United States Bankruptcy Code or similar law,
domestic or foreign, or any proceeding shall be instituted against any of the
Trust, AmeriCredit, the Company or Funding Trust seeking liquidation of their
respective assets and such Person shall fail to take appropriate action
resulting in the withdrawal or dismissal of such proceeding within 30 days or
there shall be appointed or any of the Trust, AmeriCredit, the Company or
Funding Trust shall consent to, or acquiesce in, the appointment of a receiver,
liquidator, conservator, trustee or similar official in respect of such Person
or the whole or any substantial part of its respective properties or assets or
such Person shall take any corporate action in furtherance of any of the
foregoing;
(f) on any Insured Distribution Date, after taking into account the
application in accordance with Section 5.7(b) of the Sale and Servicing
Agreement on the related Distribution Date of the sum of Available Funds, any
Deficiency Claim Amount Deposits and any Accelerated Payment Amount Shortfall
Deposits with respect to such related Distribution Date and the amounts
available in the Series 2006-A-F Spread Account (prior to withdrawals therefrom
in accordance with the terms of the Spread Account Agreement), any amounts
payable on such related Distribution Date pursuant to clauses (i), (ii), (iii)
or (v) of Section 5.7(b) of the Sale and Servicing Agreement have not been paid
in full;
(g) as of (A) any May-October Determination Date, the arithmetic average of
the Delinquency Ratio for such Determination Date and the two immediately
preceding Determination Dates is equal to or greater than 6.0%; provided,
however, in the event that the OC Percentage is equal to
37
or greater than the Target OC Percentage on any Determination Date occurring
after the twelfth Determination Date after the Closing Date, the percentage
referred to in the previous clause for such May-October Determination Date and
each Determination Date thereafter shall be deemed to be 6.50%; provided,
further, in the event that the OC Percentage is equal to or greater than the
Target OC Percentage on any Determination Date occurring after the thirty-sixth
Determination Date after the Closing Date, the percentage referred to in the
previous clause for such May-October Determination Date and each Determination
Date thereafter shall be deemed to be 7.00%; or (B) any November-April
Determination Date, the arithmetic average of the Delinquency Ratio for such
Determination Date and the two immediately preceding Determination Dates is
equal to or greater than 6.25%; provided, however, in the event that the OC
Percentage is equal to or greater than the Target OC Percentage on any
Determination Date occurring after the twelfth Determination Date after the
Closing Date, the percentage referred to in the previous clause for such
November-April Determination Date and each Determination Date thereafter shall
be deemed to be 6.75%; provided, further, in the event that the OC Percentage is
equal to or greater than the Target OC Percentage on any Determination Date
occurring after the thirty-sixth Determination Date after the Closing Date, the
percentage referred to in the previous clause for such November-April
Determination Date and each Determination Date thereafter shall be deemed to be
7.25%;
(h) the Cumulative Default Rate shall be equal to or greater than:
(A) 3.83%, with respect to any Determination Date occurring before or
during the third calendar month succeeding the Closing Date, (B)
6.45%, with respect to any Determination Date occurring after the
third, and before or during the 6th, calendar month succeeding the
Closing Date, (C) 9.20%, with respect to any Determination Date
occurring after the 6th, and before or during the 9th, calendar month
succeeding the Closing Date, (D) 10.14%, with respect to any
Determination Date occurring after the 9th, and before or during the
12th, calendar month succeeding the Closing Date, (E) 11.76%, with
respect to any Determination Date occurring after the 12th, and before
or during the 15th, calendar month succeeding the Closing Date, (F)
14.75%, with respect to any Determination Date occurring after the
15th, and before or during the 18th, calendar month succeeding the
Closing Date, (G) 17.52%, with respect to any Determination Date
occurring after the 18th, and before or during the 21st, calendar
month succeeding the Closing Date, (H) 20.75%, with respect to any
Determination Date occurring after the 21st, and before or during the
24th, calendar month succeeding the Closing Date, (I) 22.82%, with
respect to any Determination Date occurring after the 24th, and before
or during the 27th, calendar month succeeding the Closing Date, (J)
24.67%, with respect to any Determination Date occurring after the
27th, and before or during the 30th, calendar month succeeding the
Closing Date,
38
(K) 26.05%, with respect to any Determination Date occurring after the
30th, and before or during the 33rd, calendar month succeeding the
Closing Date, (L) 27.66% with respect to any Determination Date
occurring after the 33rd, and before or during the 36th, calendar
month succeeding the Closing Date, (M) 29.05%, with respect to any
Determination Date occurring after the 36th, and before or during the
39th, calendar month succeeding the Closing Date and (N) 29.51%, with
respect to any Determination Date occurring after the 39th calendar
month succeeding the Closing Date;
(i) the Cumulative Loss Rate shall be equal to or greater than:
(A) 2.77%, with respect to any Determination Date occurring before or
during the third calendar month succeeding the Closing Date, (B)
3.69%, with respect to any Determination Date occurring after the
third, and before or during the 6th, calendar month succeeding the
Closing Date, (C) 5.07%, with respect to any Determination Date
occurring after the 6th, and before or during the 9th, calendar month
succeeding the Closing Date, (D) 6.45%, with respect to any
Determination Date occurring after the 9th, and before or during the
12th, calendar month succeeding the Closing Date, (E) 8.07%, with
respect to any Determination Date occurring after the 12th, and before
or during the 15th, calendar month succeeding the Closing Date, (F)
9.91%, with respect to any Determination Date occurring after the
15th, and before or during the 18th, calendar month succeeding the
Closing Date, (G) 11.71%, with respect to any Determination Date
occurring after the 18th, and before or during the 21st, calendar
month succeeding the Closing Date, (H) 13.14%, with respect to any
Determination Date occurring after the 21st, and before or during the
24th, calendar month succeeding the Closing Date, (I) 14.29%, with
respect to any Determination Date occurring after the 24th, and before
or during the 27th, calendar month succeeding the Closing Date, (J)
15.44%, with respect to any Determination Date occurring after the
27th, and before or during the 30th, calendar month succeeding the
Closing Date, (K) 16.14%, with respect to any Determination Date
occurring after the 30th, and before or during the 33rd, calendar
month succeeding the Closing Date, (L) 17.06%, with respect to any
Determination Date occurring after the 33rd, and before or during the
36th, calendar month succeeding the Closing Date and (M) 17.75%, with
respect to any Determination Date occurring after the 36th calendar
month succeeding the Closing Date;
(j) the occurrence of a Servicer Termination Event under the Sale and
Servicing Agreement;
(k) the Trust becomes taxable as an association (or publicly traded
partnership) taxable as a corporation for federal or state income tax purposes;
39
(l) any default in the observance or performance of any covenant or
agreement of the Trust made in the Indenture (other than a default in the
payment of the interest or principal on any Note when due) or any representation
or warranty of the Trust made in the Indenture or in any certificate or other
writing delivered pursuant thereto or in connection therewith proving to have
been incorrect in any material respect as of the time when the same shall have
been made, and such default shall continue or not be cured, or the circumstance
or condition in respect of which such misrepresentation or warranty was
incorrect shall not have been eliminated or otherwise cured, for a period of 30
days after there shall have been given, by registered or certified mail, to the
Trust and the Indenture Trustee by Financial Security, a written notice
specifying such default or incorrect representation or warranty and requiring it
to be remedied; and
(m) the failure of the Company or Funding Trust to comply with Section
2.8(j) of this Insurance Agreement.
Section 5.2 Remedies; Waivers.
(a) Upon the occurrence of an Event of Default, Financial Security may
exercise any one or more of the rights and remedies set forth below:
(i) exercise any rights and remedies available under the Transaction
Documents in its own capacity or in its capacity as the Person entitled to
exercise the rights of the Controlling Party under the Transaction
Documents, including, without limitation, its right to accelerate the Notes
or to terminate the Company and to appoint a successor Servicer; or
(ii) take whatever action at law or in equity may appear necessary or
desirable in its judgment to enforce performance of any obligation of the
Trust, AmeriCredit, the Company or Funding Trust under the Transaction
Documents.
(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
failure to exercise any right or power accruing under any Transaction Document
upon the occurrence of any Event of Default or otherwise 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 Financial Security to exercise any remedy
reserved to Financial Security in this Article, it shall not be necessary to
give any notice, other than such notice as may be expressly required in this
Article.
(c) If any proceeding has been commenced to enforce any right or remedy
under this Agreement and such proceeding has been discontinued or abandoned for
any reason, or has been determined adversely to Financial Security, 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 Financial Security shall continue as
though no such proceeding had been instituted.
40
(d) Financial Security shall have the right, to be exercised in its
complete discretion, to waive any covenant, Default or Event of Default or
collection of Premium Supplement by a writing setting forth the terms,
conditions and extent of such waiver signed by Financial Security and delivered
to the Trust, AmeriCredit, the Company or Funding Trust, as the case may be. Any
such waiver may only be effected in writing duly executed by Financial Security,
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 so waived and not
to any other similar event or occurrence.
ARTICLE VI
MISCELLANEOUS
Section 6.1 Amendments, Etc. This Agreement may be amended, modified or
terminated only by written instrument or written instruments signed by the
parties hereto, provided that the Rating Agencies shall be notified in writing
of any such amendment, modification or termination in accordance with the notice
provisions set forth in the Sale and Servicing Agreement. No act or course of
dealing shall be deemed to constitute an amendment, modification or termination
hereof.
Section 6.2 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:
41
(a) To Financial Security: Financial Security Assurance Inc.
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Transaction Oversight
Department
Re: Policy No. 51749-N
Americredit Automobile Receivables
Trust 2006-A-F
Confirmation: (000) 000-0000
Telecopy Nos.: (000) 000-0000,
(000) 000-0000
(in each case in which notice or other
communication to Financial Security refers to
an Event of Default, a claim on the Policy or
with respect to which failure on the part of
Financial Security to respond shall be deemed
to constitute consent or acceptance, then a
copy of such notice or other communication
should also be sent to the attention of each of
the General Counsel and the Head--Financial
Guaranty Group and shall be marked to indicate
"URGENT MATERIAL ENCLOSED.")
(b) To AmeriCredit: AmeriCredit Corp.
000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxxx Xxxxx, Xxxxx 00000
Attention: Chief Financial Officer
(c) To the Company: AmeriCredit Financial Services, Inc.
000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxxx Xxxxx, Xxxxx 00000
Attention: Chief Financial Officer
(d) To Funding Trust: AFS Funding Trust
c/o Deutsche Bank Trust Company Delaware
E.A. Delle Donne Corporate Center
Xxxxxxxxxx Building
0000 Xxxxxx Xxxx
Xxxxxxxxxx, XX 00000-0000
With a copy to: AmeriCredit Financial Services, Inc.
000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxxx Xxxxx, XX 00000
Attention: Chief Financial Officer
42
(e) To the Trust: AmeriCredit Automobile Receivables
Trust 2006-A-F
c/o Wilmington Trust Company
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000-0000
A party may specify an additional or different address or addresses by
writing mailed or delivered to the other party as aforesaid. All such notices
and other communications shall be effective upon receipt.
Section 6.3 Payment Procedure. In the event of any payment by Financial
Security for which it is entitled to be reimbursed or indemnified as provided
above, each of the Trust, AmeriCredit, the Company and Funding Trust agrees to
accept the voucher or other evidence of payment as prima facie evidence of the
propriety thereof and the liability therefor to Financial Security. All payments
to be made to Financial Security under this Agreement shall be made to Financial
Security 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 Financial Security
shall otherwise direct by written notice to the Trust, AmeriCredit, the Company
and Funding Trust. In the event that the date of any payment to Financial
Security 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 Financial Security under this
Agreement shall bear interest at the Late Payment Rate from the date due to the
date paid, and shall include interest on overdue interest, compounded monthly.
Section 6.4 Severability. In the event that any provision of this 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 6.5 Governing Law. THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE
WITH, AND THIS AGREEMENT AND ALL MATTERS ARISING OUT OF OR RELATING IN ANY WAY
TO THIS AGREEMENT SHALL BE GOVERNED BY, THE LAW OF THE STATE OF NEW YORK.
Section 6.6 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
43
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, ACTION OR PROCEEDING IS BROUGHT IN AN INCONVENIENT
FORUM, THAT THE VENUE OF THE SUIT, ACTION OR PROCEEDING IS IMPROPER OR THAT THE
TRANSACTION 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) Each of AmeriCredit, the Company and Funding Trust hereby irrevocably
appoints and designates The Xxxxxxxx-Xxxx Corporation System, Inc., whose
address is 00 Xxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000, as its true and
lawful attorney and duly authorized agent for acceptance of service of legal
process. Each of AmeriCredit, the Company, and Funding Trust agrees that service
of such process upon such Person shall constitute personal service of such
process upon it.
(d) Nothing contained in the Agreement shall limit or affect Financial
Security'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
AmeriCredit, the Company or Funding Trust or their property in the courts of any
jurisdiction.
Section 6.7 Consent of Financial Security. In the event that Financial
Security's consent is required under any of the Transaction Documents, the
determination whether to grant or withhold such consent shall be made by
Financial Security in its sole discretion without any implied duty towards any
other Person, except as otherwise expressly provided therein.
44
Section 6.8 Counterparts. This Agreement may be executed in counterparts by
the parties hereto, and all such counterparts shall constitute one and the same
instrument.
Section 6.9 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. (a) No recourse under any Transaction
Document shall be had against, and no personal liability shall attach to, any
officer, employee, director, affiliate 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 Securities or the Policy, 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 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
Agreement.
(b) It is expressly understood and agreed by the parties hereto that (a)
this Agreement is executed and delivered by Wilmington Trust Company, not
individually or personally but solely as trustee of the Trust, in the exercise
of the powers and authority conferred and vested in it under the Trust
Agreement, (b) each of the representations, undertakings and agreements herein
made on the part of the Trust is made and intended not as personal
representations, undertakings and agreements by Wilmington Trust Company but is
made and intended for the purpose of binding only the Trust and (c) under no
circumstances shall Wilmington Trust Company be personally liable for the
payment of any indebtedness or expenses of the Trust or be liable for the breach
or failure of any obligation, representation, warranty or covenant made or
undertaken by the Trust under this Agreement or the other Transaction Documents.
Section 6.11 Entire Agreement. This Agreement, the Premium Letter and the
Policy set forth the entire agreement between the parties with respect to the
subject matter thereof, and this 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.
45
IN WITNESS WHEREOF, the parties hereto have duly executed and delivered
this Insurance and Indemnity Agreement, all as of the day and year first above
written.
FINANCIAL SECURITY ASSURANCE INC.
By: /s/ Xxxx Xxxxxxxxxxx
------------------------------------
Authorized Officer
AMERICREDIT AUTOMOBILE RECEIVABLES TRUST
2006-A-F
by WILMINGTON TRUST COMPANY, not in
its individual capacity but solely as
Owner Trustee
By: /s/ Xxxxxxxx X. Xxxxx
------------------------------------
Title: Vice President
AMERICREDIT FINANCIAL SERVICES, INC.
By: /s/ Xxxxx Xxxxxxxxxx
------------------------------------
Title: Vice President, Structured
Finance
AMERICREDIT CORP.
By: /s/ Xxxxx X. Xxxxxxxxx
------------------------------------
Title: Senior Vice President,
Structured Finance
[Insurance Agreement Signature Page]
AFS FUNDING TRUST
By: AMERICREDIT FINANCIAL SERVICES,
INC., as Administrator
By: /s/ Xxxxx Xxxxxxxxxx
------------------------------------
Name: Xxxxx Xxxxxxxxxx
Title: Vice President, Structured
Finance
Acknowledged:
XXXXX FARGO BANK, NATIONAL ASSOCIATION
By: /s/ Xxxxxxxx X. Xxxxxxxx
---------------------------------
Name: Xxxxxxxx X. Xxxxxxxx
Title: Vice President
[Insurance Agreement Signature Page]
APPENDIX I
DEFINITIONS
"Administration Agreement" means the Administration Agreement dated as of
August 15, 2002 between Funding Trust and the Company.
"AmeriCredit" means AmeriCredit Corp., a Texas corporation.
"AmeriCredit Parties" means each of AmeriCredit, the Company and Funding
Trust.
"AFS Funding" means AFS Funding Corp., a Nevada corporation.
"Business Day" means any day other than a Saturday, Sunday, legal holiday
or other day on which commercial banking institutions in Fort Worth, Texas, New
York, New York, Wilmington, Delaware, Minneapolis, Minnesota or the principal
place of business of any successor Servicer, successor Indenture Trustee,
successor Owner Trustee or successor Collateral Agent, are authorized or
obligated by law, executive order or governmental decree to be closed.
"Certificate" means the Certificate of Trust issued pursuant to the Trust
Agreement.
"Certificateholder" means the registered holder of the Certificate.
"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.
"Commission" means the Securities and Exchange Commission.
"Commonly Controlled Entity" means AmeriCredit and each entity, whether or
not incorporated, which is affiliated with AmeriCredit pursuant to Section
414(b), (c), (m) or (o) of the Code.
"Company" means AmeriCredit Financial Services, Inc., a Delaware
corporation.
"Date of Issuance" means the date on which the Policy is 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 Event of Default.
"Depositor" means Funding Trust in its capacity as Depositor under the
Trust Agreement.
"ERISA" means the Employee Retirement Income Security Act of 1974,
including, unless the context otherwise requires, the rules and regulations
thereunder, as amended from time to time.
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"Event of Default" means any event of default specified in Section 5.1 of
the Insurance Agreement.
"Expiration Date" means the final date of the Term Of The Policy, as
specified in the Policy.
"Financial Security" means Financial Security Assurance Inc., a New York
stock insurance company, its successors and assigns.
"Financial Statements" means with respect to AmeriCredit the consolidated
balance sheets as of June 30, 2005 and the statements of income, shareholder's
equity and cash flows for the 12-month period then ended and the notes thereto
and the consolidated balance sheets as of each June 30, September 30, December
31 and March 31 thereafter, and the consolidated statements of income and cash
flows for the fiscal quarter then ended.
"Fiscal Agent" means the Fiscal Agent, if any, designated pursuant to the
terms of the Policy.
"Fitch" means Fitch Inc. and any successor thereto, and, if such
corporation shall for any reason no longer perform the functions of a securities
rating agency, "Fitch" shall be deemed to refer to any other nationally
recognized rating agency designated by Financial Security.
"Funding Trust" means AFS Funding Trust, a Delaware statutory trust.
"Funding Trust Agreement" means the Second Amended and Restated Trust
Agreement, dated as of August 15, 2002 between AFS Funding Corp. and Deutsche
Bank Trust Company Delaware (formerly known as Bankers Trust (Delaware)) as the
same may be amended from time to time.
"Indemnification Agreement" means the Indemnification Agreement dated as of
July 11, 2006 among Financial Security, Funding Trust and the Representative, as
the same may be amended from time to time.
"Indenture" means the Indenture dated as of July 12, 2006 between the Trust
and Xxxxx Fargo Bank, National Association, as Trustee and Trust Collateral
Agent.
"Indenture Trustee" means Xxxxx Fargo Bank, National Association, as
trustee under the Indenture, and any successor thereto as trustee under the
Indenture.
"Insurance Agreement" means this Insurance and Indemnity Agreement dated as
of the date hereof, among Financial Security, the Trust, AmeriCredit, the
Company and Funding Trust, as the same may be amended from time to time.
"Insurance Agreement Event of Default" means any Event of Default specified
in Section 5.1.
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"Insurance Agreement Indenture Cross Default" means an Event of Default
specified in clauses (a), (e), (f), (k), (l) or (m) of Section 5.1.
"Investment Company Act" means the Investment Company Act of 1940,
including, unless the context otherwise requires, the rules and regulations
thereunder, as amended from time to time.
"IRS" means the Internal Revenue Service.
"JPMorgan Chase Bank" means JPMorgan Chase Bank, National Association, a
New York banking corporation.
"Late Payment Rate" means the lesser of (a) the greater of (i) the per
annum rate of interest, publicly announced from time to time by JPMorgan Chase
Bank principal office in the City of New York as its prime or base lending rate
(any change in such rate of interest to be effective on the date such change is
announced by JPMorgan Chase Bank plus 3%), and (ii) the then applicable highest
rate of interest on the Securities 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 the actual number of days elapsed over the
actual number of days in the current calendar year.
"Lenders" means the lender named in the MBIA IV Security Agreement and the
lenders named in the Master Trust Indenture.
"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, 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.
"Lockbox Agreement" means the Lockbox Agreement, as defined in the Sale and
Servicing Agreement.
"Master Trust Indenture" means the Second Amended and Restated Indenture
dated as of November 5, 2003, by and among AmeriCredit Master Trust and JPMorgan
Chase, as successor in interest to, Bank One, as the same may be amended from
time to time.
"Material Adverse Change" means, (a) in respect of any Person, a material
adverse change in (i) the business, financial condition, results of operations
or properties of such Person or any of its Subsidiaries or (ii) the ability of
such Person to perform its obligations under any of the Transaction Documents to
which it is a party and (b) in respect of the Receivables, a material adverse
change in (i) the value or marketability of
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the Receivables, taken as a whole, or (ii) the probability that amounts now or
hereafter due in respect of a material portion of the Receivables will be
collected on a timely basis.
"MBIA" means MBIA Insurance Corporation.
"MBIA IV Security Agreement" means the Security Agreement dated as of
October 1, 2004, by and among AmeriCredit MTN Receivables Trust IV, the Company,
AmeriCredit MTN Corp. IV and JPMorgan Chase, as the same may be amended from
time to time.
"Moody's" means Xxxxx'x 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
Financial Security.
"Multiemployer Plan" means a multiemployer plan (within the meaning of
Section 4001(a)(3) of ERISA) in respect of which a Commonly Controlled Entity
makes contributions or has liability.
"Noteholders" means the registered holders of the Notes.
"Notes" means the Trust's $204,000,000 Class A-1 5.5048% Asset Backed
Notes, $394,000,000 Class A-2 5.61% Asset Backed Notes, $412,000,000 Class A-3
5.56% Asset Backed Notes and $340,000,000 Class A-4 5.64% Asset Backed Notes
issued pursuant to the Indenture.
"Notice of Claim" means a Notice of Claim and Certificate in the form
attached as Exhibit A to Endorsement No. 1 to the Policy.
"Offering Document" means the Prospectus dated April 28, 2006, and the
Prospectus Supplement dated July 11, 2006 relating to the Securities and any
amendment or supplement thereto and any other offering document in respect of
the Securities that makes reference to the Policy.
"Owner Trustee" means Wilmington Trust Company as owner trustee under the
Trust Agreement, and any successor thereto as owner trustee under the Trust
Agreement.
"PBGC" means the Pension Benefit Guaranty Corporation or any successor
agency, corporation or instrumentality of the United States to which the duties
and powers of the Pension Benefit Guaranty Corporation are transferred.
"Person" means an individual, joint stock company, trust, unincorporated
association, joint venture, corporation, business or owner trust, partnership or
other organization or entity (whether governmental or private).
"Plan" means any pension plan (other than a Multiemployer Plan) covered by
Title IV of ERISA, which is maintained by a Commonly Controlled Entity or in
respect of which a Commonly Controlled Entity has liability.
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"Policy" means the financial guaranty insurance policy, including any
endorsements thereto, issued by Financial Security with respect to the
Securities substantially in the form attached as Annex I to the Insurance
Agreement.
"Premium" means the premium payable in accordance with Section 3.2 of this
Agreement and the Premium Supplement, if any.
"Premium Letter" means the letter between Financial Security and
AmeriCredit dated the Date of Issuance in respect of the premium (including
Premium Supplement) payable by AmeriCredit in consideration of the issuance of
the Policy.
"Premium Supplement" means a non-refundable premium, in addition to the
premium payable in accordance with Section 3.2 of this Agreement, accruing to
Financial Security in monthly installments commencing on the date of the
occurrence of an Event of Default whether or not an Event of Default shall have
been declared and on each monthly anniversary thereof in accordance with the
terms set forth in the Premium Letter.
"Provided Documents" means the Transaction Documents and any documents,
agreements, instruments, schedules, certificates, statements, cash flow
schedules, number runs or other writings or data furnished to Financial Security
by or on behalf of AmeriCredit, the Company, AFS Funding or Funding Trust with
respect to itself, its respective Subsidiaries, the Receivables or the
Transaction.
"Purchase Agreement" means the Purchase Agreement, dated as of July 12,
2006, by and between the Company and Funding Trust.
"Receivable" has the meaning provided in the Sale and Servicing Agreement.
"Release of Security Interests" means the Releases of Security Interests,
each dated as of July 20, 2006, by JPMorgan Chase Bank, on behalf of the
respective Lender is releasing the security interest in the Receivables
identified on Exhibit A thereto and authorizing the filing of UCC financing
statements to be filed in such locations as are required to evidence the release
of the security interest in such Receivables.
"Reportable Event" means any of the events set forth in Section 4043(b) of
ERISA or the regulations thereunder.
"Representative" means Wachovia Capital Markets, LLC, as representative of
the Underwriters.
"Restrictions on Transferability" 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 non-consensual or arises by contract, operation of
law, legal process or otherwise, any material condition to, or restriction on,
the ability of such Person or any transferee therefrom to sell, assign, transfer
or otherwise liquidate such property or assets in a commercially reasonable time
and manner or which would otherwise materially deprive such Person or any
transferee therefrom of the benefits of ownership of such property or assets.
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"Sale and Servicing Agreement" means the Sale and Servicing Agreement dated
as of July 12, 2006 among the Trust, AmeriCredit Financial Services, Inc., as
Servicer, Funding Trust and Xxxxx Fargo Bank, National Association, as Backup
Servicer and Trust Collateral Agent.
"Securities" means the Notes.
"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.
"Servicer" means the Servicer, in its capacity as Servicer under the Sale
and Servicing Agreement.
"S&P" means Standard & Poor's Ratings Service, a division of XxXxxx-Xxxx
Corporation, 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 Financial Security.
"Special Event" means the occurrence of any one of the following: (a) an
Event of Default under this Agreement has occurred and is continuing, (b) a
Cumulative Default Test Failure, Delinquency Test Failure or Cumulative Net Loss
Test Failure (each as defined in the Spread Account Agreement) has occurred and
is continuing, (c) any legal proceeding or binding arbitration is instituted
with respect to the Transaction, (d) any governmental or administrative
investigation, action or proceeding is instituted that would, if adversely
decided, result in a Material Adverse Change in respect of AmeriCredit, the
Company, Funding Trust or the Receivables, or (e) Financial Security pays a
claim under the Policy.
"Spread Account Agreement" means the Spread Account Agreement, dated as of
July 12, 2006, among Financial Security, the Trust, the Collateral Agent and the
Trustee as the same may be amended, supplemented or otherwise modified in
accordance with the terms thereof.
"Subsidiary" means, with respect to any Person, any corporation of which a
majority of the outstanding shares of capital stock having ordinary voting power
for the election of directors is at the time owned by such Person directly or
through one or more Subsidiaries.
"Time of Sale" means 12:00 noon (New York time) on July 11, 2006.
"Term of this Agreement" shall be determined as provided in Section 4.01 of
this Agreement.
"Term Of The Policy" has the meaning provided in the Policy.
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"Transaction" means the transactions contemplated by the Transaction
Documents, including the transactions described in the Offering Document.
"Transaction Documents" means this Agreement, any Subsequent Transfer
Agreement, the Trust Agreement, the Indenture, the Sale and Servicing Agreement,
the Underwriting Agreement, the Indemnification Agreement, the Purchase
Agreement, any Subsequent Purchase Agreement, the Custodian Agreement, the
Premium Letter, the Lockbox Agreement, the Spread Account Agreement, the Funding
Trust Agreement and the Administration Agreement.
"Trust" means AmeriCredit Automobile Receivables Trust 2006-A-F created by
the Trust Agreement.
"Trust Agreement" means the Trust Agreement dated as of July 6, 2006, as
amended as of July 12, 2006 between Funding Trust and Wilmington Trust Company
as Owner Trustee.
"Trust Property" has the meaning provided in the Sale and Servicing
Agreement.
"Underfunded Plan" means any Plan that has an Underfunding.
"Underfunding" means, with respect to any Plan, the excess, if any, of (a)
the present value of all benefits under the Plan (based on the assumptions used
to fund the Plan pursuant to Section 412 of the Code) as of the most recent
valuation date over (b) the fair market value of the assets of such Plan as of
such valuation date.
"Underwriters" means Barclays Capital Inc., Wachovia Capital Markets, LLC,
BMO Capital Markets Corp., Deutsche Bank Securities Inc., X.X. Xxxxxx Securities
Inc. and UBS Securities LLC, as underwriters.
"Underwriting Agreement" means the Underwriting Agreement, dated as of July
11, 2006 among the Seller, AmeriCredit Financial Services, Inc. and the
Representative on its own behalf and as representative of the Underwriters.
"Xxxxx Fargo" means Xxxxx Fargo Bank, National Association and any
successors or assigns.
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ANNEX I
TO
INSURANCE AND INDEMNITY AGREEMENT
FORM OF NOTE POLICY
[See "Financial Guaranty Insurance Policy" (Exhibit 10.6)]
APPENDIX A
TO INSURANCE AND INDEMNITY AGREEMENT
CONDITIONS PRECEDENT TO ISSUANCE OF THE POLICY
(a) Payment of Premium and Expenses; Premium Letter. Financial Security
shall have been paid, a nonrefundable Premium and shall have been reimbursed,
for other fees and expenses identified in Section 3.2 of this Agreement as
payable at closing and Financial Security shall have received a fully executed
copy of the Premium Letter.
(b) Transaction Documents. Financial Security shall have received a copy of
each of the Transaction Documents, in form and substance satisfactory to
Financial Security, duly authorized, executed and delivered by each party
thereto. Without limiting the foregoing, the provisions of the Sale and
Servicing Agreement relating to the payment to Financial Security of Premium due
on the Policy and the reimbursement to Financial Security of amounts paid under
the Policy shall be in form and substance acceptable to Financial Security in
its sole discretion.
(c) Certified Documents and Resolutions. Financial Security shall have
received a copy of (i) the certificate of incorporation and bylaws of each of
AmeriCredit, the Company, and AFS Funding and a copy of the Certificate of Trust
and the Funding Trust Agreement of Funding Trust and (ii) the resolutions of the
Board of Directors of each of AmeriCredit, the Company and AFS Funding and the
resolution of the equity owners of Funding Trust, authorizing the issuance of
the Securities and the execution, delivery and performance by AmeriCredit, the
Company, AFS Funding and Funding Trust of the Transaction Documents and the
transactions contemplated thereby, certified by the Secretary or an Assistant
Secretary of AmeriCredit, the Company, AFS Funding and Funding Trust, as the
case may be (which certificate shall state that such certificate of
incorporation, bylaws and resolutions are in full force and effect without
modification on the Date of Issuance).
(d) Incumbency Certificate. Financial Security shall have received a
certificate of the Authorized Officer, Secretary or an Assistant Secretary, as
the case may be, of each of the Owner Trustee, AmeriCredit, the Company, the
Representative and Funding Trust certifying the name and signatures of the
officers of the Owner Trustee, AmeriCredit, the Company, the Representative and
Funding Trust, as the case may be, authorized to execute and deliver the
Transaction Documents and that shareholder consent to the execution and delivery
of such documents is not necessary.
(e) Representations and Warranties; Certificate. The representations and
warranties of each of AmeriCredit, the Company and Funding Trust in this
Agreement shall be true and correct as of the Date of Issuance with respect to
such Person as if made on the Date of Issuance and Financial Security shall have
received a certificate of appropriate officers of the Owner Trustee,
AmeriCredit, the Company and Funding Trust, as the case may be, to that effect.
(f) Opinions of Counsel. Financial Security shall have received opinions of
counsel addressed to Financial Security and S&P in respect of the Trust, the
Owner Trustee, AmeriCredit, the Company, Funding Trust, the other parties to the
Transaction Documents and the Transaction in form and substance satisfactory to
Financial Security, addressing such matters as Financial Security may reasonably
request, and the counsel providing each such opinion shall have been instructed
by its client to deliver such opinion to the addressees thereof.
(g) Approvals, Etc. Financial Security shall have received true and correct
copies of all approvals, licenses and consents, if any, including, without
limitation, the approval of the shareholders of AmeriCredit and the Company and
the approval of the equity owners of Funding Trust 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 any of 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 which would make the transactions contemplated by
any of the Transaction Documents illegal or otherwise prevent the consummation
thereof.
(j) Satisfaction of Conditions of Underwriting Agreement. All conditions in
the Underwriting Agreement to the Underwriters' obligation to purchase the
Securities shall have been satisfied.
(k) Issuance of Ratings. Financial Security shall have received
confirmation that the risk secured by the Policy constitutes an investment grade
risk by S&P and an insurable risk by Xxxxx'x and that (i) the Class A-1 Notes,
when issued, will be rated "P-1" by Xxxxx'x, "A-1+" by S&P and "F1+" by Fitch
and (ii) the Class A-2 Notes, Class A-3 Notes and Class A-4 Notes, when issued,
will each be rated "Aaa" by Xxxxx'x and "AAA" by S&P and Fitch.
(l) Maintenance of Receivable Files. Financial Security shall have received
evidence satisfactory to it that the Receivable Files are being maintained by
and held in the custody of the Company, as Custodian, pursuant to Section 3.3 of
the Sale and Servicing Agreement.
(m) Financial Security shall have received an executed copy of the Release
of Security Interest, in form and substance satisfactory to Financial Security.
(n) The Trustee shall have received for filing, any amendments to, and/or
terminations of, UCC financing statements to be filed in such locations as
required to evidence the release of any Liens of the Lenders on certain of the
Receivables and other property.
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(o) No Default. No Default or Event of Default shall have occurred.
(p) Intentionally Omitted.
(q) Additional Items. Financial Security shall have received such other
documents, instruments, approvals or opinions requested by Financial Security as
may be reasonably necessary to effect the Transaction, including but not limited
to evidence satisfactory to Financial Security that all conditions precedent, if
any, in the Transaction Documents have been satisfied.
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