INSURANCE AGREEMENTInsurance Agreement |
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AFS SENSUB CORP. | FINANCIAL GUARANTY INSURANCE COMPANY, | AMERICREDIT AUTOMOBILE RECEIVABLES TRUST 2006-B-G, | WELLS FARGO BANK, NATIONAL ASSOCIATION,. RealDealDocs™ contains millions of easily searchable legal documents and clauses from top law firms. Search for free - click here. |
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Search Insurance Agreement by:
Exhibit 10.3
EXECUTION COPY
INSURANCE AGREEMENT
Dated as of September 18, 2006
FINANCIAL GUARANTY INSURANCE COMPANY,
as Insurer,
AMERICREDIT AUTOMOBILE RECEIVABLES TRUST 2006-B-G,
as Issuer,
AFS SENSUB CORP.,
as Seller,
AMERICREDIT FINANCIAL SERVICES, INC.
and
WELLS FARGO BANK, NATIONAL ASSOCIATION,
as Trustee
AmeriCredit Automobile
Receivables Trust 2006-B-G
Asset Backed Notes
Class A-1 Notes, Class A-2 Notes,
Class A-3 Notes and Class A-4 Notes
TABLE OF CONTENTS
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ARTICLE I |
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DEFINITIONS |
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Section 1.01. |
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Defined Terms |
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1 |
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Section 1.02. |
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Other Definitional
Provisions |
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7 |
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ARTICLE II |
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REPRESENTATIONS, WARRANTIES AND COVENANTS |
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Section 2.01. |
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Representations and
Warranties of AmeriCredit |
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8 |
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Section 2.02. |
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Affirmative Covenants of
AmeriCredit |
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9 |
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Section 2.03. |
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Negative Covenants of
AmeriCredit |
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13 |
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Section 2.04. |
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Representations and
Warranties of the Insurer |
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13 |
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Section 2.05. |
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Representations and
Warranties of the Seller and the Issuer |
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14 |
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Section 2.06. |
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Affirmative Covenants of
the Seller and the Issuer |
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15 |
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Section 2.07. |
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Negative Covenants of the
Seller and the Issuer |
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19 |
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ARTICLE III |
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THE POLICY; REIMBURSEMENT |
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Section 3.01. |
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Issuance of the Policy |
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20 |
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Section 3.02. |
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Payment of Fees and Premium |
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22 |
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Section 3.03. |
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Reimbursement Obligation |
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22 |
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Section 3.04. |
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Indemnification |
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23 |
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Section 3.05. |
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Payment Procedure |
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27 |
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Section 3.06. |
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Subrogation |
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27 |
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Section 3.07. |
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Reimbursement |
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27 |
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ARTICLE IV |
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FURTHER AGREEMENTS |
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Section 4.01. |
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Effective Date; Term of the
Insurance Agreement |
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27 |
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Section 4.02. |
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Further Assurances and
Corrective Instruments |
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28 |
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Section 4.03. |
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Obligations Absolute |
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28 |
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Section 4.04. |
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Assignments; Reinsurance;
Third-Party Rights |
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30 |
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Section 4.05. |
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Liability of the Insurer |
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31 |
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Section 4.06. |
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Parties to Join in Enforcement
Action |
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31 |
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Section 4.07. |
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Rights and Remedies |
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31 |
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ARTICLE V |
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DEFAULTS AND REMEDIES |
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Section 5.01. |
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Defaults |
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32 |
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Section 5.02. |
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Remedies; No Remedy
Exclusive |
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33 |
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Section 5.03. |
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Waivers |
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33 |
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ARTICLE VI |
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MISCELLANEOUS |
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Section 6.01. |
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Amendments, Etc |
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34 |
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Section 6.02. |
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Notices |
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34 |
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Section 6.03. |
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Severability |
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36 |
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Section 6.04. |
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Governing Law |
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36 |
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Section 6.05. |
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Consent to Jurisdiction |
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36 |
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Section 6.06. |
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Consent of the Insurer |
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37 |
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Section 6.07. |
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Counterparts |
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37 |
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Section 6.08. |
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Headings |
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37 |
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Section 6.09. |
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Trial by Jury Waived |
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37 |
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Section 6.10. |
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Limited Liability |
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37 |
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Section 6.11. |
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Entire Agreement; Facsimile
Signatures |
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38 |
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Section 6.12. |
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Trustee |
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38 |
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Section 6.13. |
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Third-Party Beneficiary |
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38 |
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Section 6.14. |
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No Proceedings |
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38 |
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Section 6.15. |
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Limitation of Owner Trustee
Liability |
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38 |
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ii
INSURANCE
AGREEMENT (as it may be amended, modified or supplemented from time to time,
this “Insurance Agreement”), dated as of
September 18, 2006, by and among FINANCIAL GUARANTY INSURANCE COMPANY, as
Insurer (the “Insurer”), AMERICREDIT AUTOMOBILE
RECEIVABLES TRUST 2006-B-G, as Issuer (the “Issuer”),
AMERICREDIT FINANCIAL SERVICES, INC. (“AmeriCredit”),
AFS SENSUB CORP., as Seller (the “Seller”) and WELLS
FARGO BANK, NATIONAL ASSOCIATION, as Trustee (in such capacity, the “Trustee”).
PRELIMINARY STATEMENTS
The
Indenture, dated as of September 18, 2006 (the “Indenture”),
by and between the Issuer and Wells Fargo Bank, National Association, as
Trustee and Trust Collateral Agent (in such capacity, the “Trust
Collateral Agent”), provides for, among other things, the issuance of the
AmeriCredit Automobile Receivables Trust 2006-B-G Asset Backed Notes.
The
parties hereto desire that the Insurer issue the Policy to the Trustee for the
benefit of the Holders and to, among other things, specify the conditions precedent
thereto, the premium in respect thereof and the indemnity, reimbursement,
reporting and other obligations of the parties hereto other than the Insurer in
consideration thereof.
NOW,
THEREFORE, in consideration of the premises and the mutual agreements herein
contained, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01.
Defined Terms. Capitalized terms used in this Insurance Agreement shall
have the meanings set forth below. Unless the context clearly requires otherwise,
all capitalized terms used but not defined herein shall have the respective
meanings assigned to them in the Policy or, if not defined therein, in the
Indenture or, if not defined therein, in the Sale and Servicing Agreement, or,
if not defined therein, in the Purchase Agreement, each as described below.
“Affiliate”
means, with respect to any specified Person, any other Person controlling or
controlled by or under common control with such specified Person. For the
purposes of this definition, “control” when used with respect to
any Person means the power to direct the management and policies of such
Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise; and the terms “controlling”
and “controlled” have meanings correlative to the foregoing.
“AmeriCredit”
means AmeriCredit Financial Services, Inc. in its individual capacity and in
its capacity as servicer under the Sale and Servicing Agreement, as custodian
under the Custodian Agreement and as seller under the Purchase Agreement.
“AmeriCredit
Party” means any of the Issuer, the Seller, the Depositor and
AmeriCredit (collectively, the “AmeriCredit Parties”).
“Certificate”
means the trust certificate evidencing the beneficial interest of the
Certificateholder in the Trust.
“Charter
Documents” means, with respect to any Transaction Party, such
entity’s organizational documents, including its trust agreement,
certificate of trust, memorandum of association, articles of organization,
certificate or articles of incorporation, by-laws and/or operating agreement.
“Class A-1
Notes” means the Class A-1 5.3484% Asset Backed Notes,
issued pursuant to the Indenture and substantially in the form attached as an
Exhibit to the Indenture.
“Class A-2
Notes” means the Class A-2 5.37% Asset Backed Notes, issued
pursuant to the Indenture and substantially in the form attached as an Exhibit
to the Indenture.
“Class A-3
Notes” means the Class A-3 5.21% Asset Backed Notes, issued
pursuant to the Indenture and substantially in the form attached as an Exhibit
to the Indenture.
“Class A-4
Notes” means the Class A-4 5.21% Asset Backed Notes, issued
pursuant to the Indenture and substantially in the form attached as an Exhibit
to the Indenture.
“Closing
Date” means September 26, 2006.
“Collateral
Agent” means Wells Fargo Bank, National Association, in its
capacity as Collateral Agent under the Spread Account Agreement.
“Collection
Period” means, (i) with respect to the first Distribution
Date, the period beginning on the close of business on September 18, 2006
and ending on the close of business on September 30, 2006, and
(ii) with respect to each subsequent Distribution Date, the period beginning
on the close of business on the last day of the second preceding calendar month
and ending on the close of business on the last day of the immediately
preceding calendar month. Any amount stated “as of the close of business
on the last day of a Collection Period” shall give effect to the
following calculations as determined as of the end of the day on such last day:
(i) all applications of collections and (ii) all distributions.
“Contract”
means a motor vehicle retail installment sales contact or promissory note.
“Controlling
Party” means the Insurer, so long as no Insurer Default shall
have occurred and be continuing and the Trust Collateral Agent for the benefit
of the Noteholders, in the event an Insurer Default shall have occurred and be
continuing.
“Corporate
Trust Office” means (i) with respect to the Owner Trustee,
the principal corporate trust office of the Owner Trustee, which at the time of
execution of this agreement is 1100 North Market Street, Wilmington, Delaware
19890-0001, Attention: Corporate Trust Administration, and (ii) with respect to
the Trustee, the Trust Collateral Agent, the Backup Servicer and the Collateral
Agent, the principal office thereof at which at any particular time its
corporate trust business shall be administered, which at the time of execution
of this agreement is Sixth Street and Marquette Avenue, MAC N 9311-161,
Minneapolis, Minnesota 55479, Attention: Corporate Trust Office.
2
“Custodian”
means AmeriCredit and any other Person named from time to time as custodian in
any Custodian Agreement acting as agent for the Trust Collateral Agent, which
Person must be acceptable to the Controlling Party (the Custodian as of the
Closing Date is acceptable to the Insurer as of the Closing Date).
“Custodian
Agreement” means any Custodian Agreement from time to time in
effect between the Custodian named therein, the Insurer and the Trust
Collateral Agent, as the same may be amended, supplemented or otherwise
modified from time to time in accordance with the terms thereof, which
Custodian Agreement and any amendments, supplements or modifications thereto
shall be acceptable to the Controlling Party (the Custodian Agreement which is
effective on the Closing Date is acceptable to the Controlling Party).
“Default”
means any occurrence that is, or with notice or the lapse of time or both would
become, an Event of Default.
“Distribution
Date” means, with respect to each Collection Period, the sixth
day of the following calendar month, or, if such day is not a Business Day, the
immediately following Business Day, commencing October 6, 2006.
“Event
of Default” has the meaning specified in Section 5.01
hereof.
“Financial
Statements” means, with respect to AmeriCredit Corp., the
consolidated balance sheets and the statements of income, retained earnings and
cash flows and the notes thereto which have been provided to the Insurer.
“Fitch”
means Fitch Inc., or its successor.
“Holder”
has the meaning given thereto in the Policy.
“Indemnified
Party” has the meaning specified in Section 3.04 hereof.
“Indemnifying
Party” has the meaning specified in Section 3.04 hereof.
“Indemnification
Agreement” means the Indemnification Agreement dated as of
September 14, 2006 between the Insurer and Deutsche Bank Securities Inc.,
as Representative of the Underwriters.
“Indenture”
means the Indenture dated as of September 18, 2006 between the Issuer and
Wells Fargo Bank, National Association, as Trustee and Trust Collateral Agent,
as the same may be amended or supplemented from time to time.
“Information”
has the meaning specified in Section 2.01(c) hereof.
“Insolvency
Event” means, with respect to a specified Person, (a) the
filing of a petition against such Person or the entry of a decree or order for
relief by a court having jurisdiction in the premises in respect of such Person
or any substantial part of its property in an involuntary case under any
applicable federal or state bankruptcy, insolvency or other similar law now or
hereafter in effect, or appointing a receiver, liquidator, assignee, custodian,
trustee, sequestrator,
3
or similar official for such
Person or for any substantial part of its property, or ordering the winding-up
or liquidation or such Person’s affairs, and such petition, decree or
order shall remain unstayed and in effect for a period of 60 consecutive days;
or (b) the commencement by such Person of a voluntary case under any
applicable federal or state bankruptcy, insolvency or other similar law now or
hereafter in effect, or the consent by such Person to the entry of an order for
relief in an involuntary case under any such law, or the consent by such Person
to the appointment of or taking possession by, a receiver, liquidator,
assignee, custodian, trustee, sequestrator, or similar official for such Person
or for any substantial part of its property, or the making by such Person of
any general assignment for the benefit of creditors, or the failure by such
Person generally to pay its debts as such debts become due, or the taking of
action by such Person in furtherance of any of the foregoing.
“Insolvency
Proceeding” means any proceeding by or against any person under
any applicable reorganization, bankruptcy, liquidation, rehabilitation, insolvency
or other similar law now or hereafter in effect or any proceeding in which a
receiver, liquidator, conservator, trustee or similar official shall have been,
or may be, appointed or requested for a person or any of its assets.
“Insurance
Agreement” has the meaning given such term in the initial
paragraph hereof.
“Insured
Payment” has the meaning given such term in the Policy.
“Insurer”
means Financial Guaranty Insurance Company and any successor thereto, as issuer
of the Policy.
“Insurer
Default” means the occurrence and continuance of any of the
following events:
(a) the
Insurer shall have failed to make a payment required under the Policy in
accordance with its terms;
(b) the
Insurer shall have (i) filed a petition or commenced any case or
proceeding under any provision or chapter of the United States Bankruptcy Code
or any other similar federal or state law relating to insolvency, bankruptcy,
rehabilitation, liquidation or reorganization, (ii) made a general assignment
for the benefit of its creditors, or (iii) had an order for relief entered
against it under the United States Bankruptcy Code or any other similar federal
or state law relating to insolvency, bankruptcy, rehabilitation, liquidation or
reorganization which is final and nonappealable; or
(c) a
court of competent jurisdiction, the New York Department of Insurance or other
competent regulatory authority shall have entered a final and nonappealable
order, judgment or decree (i) appointing a custodian, trustee, agent or
receiver for the Insurer or for all or any material portion of its property or
(ii) authorizing the taking of possession by a custodian, trustee, agent
or receiver of the Insurer (or the taking of possession of all or any material portion
of the property of the Insurer).
“Insurer
Financial Statements” has the meaning given such term in
Section 2.04(g).
4
“Insurer
Information” means the information in the Preliminary Prospectus
Supplement and the Prospectus Supplement regarding the Insurer and the Policy,
which consists solely of the information set forth under the captions
“The Insurer” and “The Policy” in the Preliminary
Prospectus Supplement and the Prospectus Supplement, and the consolidated financial
statements of the Insurer and subsidiaries as of December 31, 2005 and
December 31, 2004 and for the years ended December 31, 2005 and 2004,
and for the periods from December 18, 2003 through December 31, 2003
and from January 1, 2003 through December 17, 2003, and the unaudited
consolidated financial statements of the Insurer and subsidiaries as of
June 30, 2006 and for the three and six month periods ended June 30,
2006 and 2005, in each case as provided to the Depositor for incorporation by
reference in the Preliminary Prospectus Supplement and the Prospectus
Supplement.
“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.
“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
Citibank, N.A. 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 Citibank,
N.A.), plus 3% per annum and (ii) the then applicable highest rate of
interest on the Notes and (b) the maximum rate permissible under applicable
usury or similar laws limiting interest rates. The Late Payment Rate shall be
computed on the basis of the actual number of days elapsed over a year of
360 days.
“Lockbox
Agreement” means the Tri-Party Remittance Processing Agreement,
dated as of September 18, 2006, by and among AmeriCredit, JPMorgan Chase Bank,
N.A., and the Trust Collateral Agent, as such agreement may be amended or
supplemented from time to time, unless the Trust Collateral Agent shall cease
to be a party thereunder, or such agreement shall be terminated in accordance
with its terms, in which event “Lockbox Agreement” shall mean such
other agreement, in form and substance acceptable to the Controlling Party,
among the Servicer, the Trust Collateral Agent and the Lockbox Bank.
“Lockbox
Bank” means a depository institution named by the Servicer and
acceptable to the Controlling Party.
“Master
Warehouse Facility” means the second amended and restated sale
and servicing agreement, dated as of November 5, 2003, among AmeriCredit
Master Trust, a Delaware statutory trust, AmeriCredit Funding Corp. VII, a
Delaware corporation, AmeriCredit and JP Morgan Chase Bank, N.A. (as successor
in interests to Bank One, NA) as amended, restated or supplemented, and any
replacement warehouse facility.
“Material
Adverse Effect” means, with respect to any event or circumstance,
a material adverse effect on (a) the business, financial condition,
operations or assets of the Issuer (considered separately) or the Issuer, the
Seller and the Servicer (taken as a whole), (b) the ability of any
AmeriCredit Party to perform its obligations under any Transaction Document to
which it is a party, (c) the validity, enforceability of, or
collectibility of, amounts payable by any AmeriCredit Party under any
Transaction Document to which it is a party, (d) the status,
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existence, perfection or
priority of the interest of the Issuer or of the Trustee in the Trust Estate or
(e) the validity, enforceability or collectibility of amounts payable by
any AmeriCredit Party when due under any Transaction Document to which it is a
party.
“Moody’s”
means Moody’s Investors Service, Inc. and any successor thereto.
“Notes”
means the Class A-1 Notes, the Class A-2 Notes, the Class A-3
Notes and the Class A-4 Notes.
“Offering
Document” means, collectively, the Preliminary Prospectus Supplement,
dated September 12, 2006 (the “Preliminary Prospectus
Supplement”), the Prospectus Supplement, dated September 14, 2006
(the “Prospectus Supplement”), and the Prospectus, dated
April 28, 2006, of the Seller, in respect of the offering and sales of the
Notes, any amendment or supplement thereto, and any other offering document in
respect of the Notes that makes reference to the Policy.
“Opinion
Facts and Assumptions” means the facts and assumptions contained
in the insolvency opinion dated September 26, 2006 by Dewey Ballantine LLP
and the officer’s certificates attached as exhibits thereto insofar as
they relate to the Seller, the Issuer and AmeriCredit.
“Person”
means an individual, corporation, estate, partnership, joint venture, association,
limited liability company, joint stock company, trust (including any
beneficiary thereof), unincorporated organization or government or any agency
or political subdivision thereof.
“Policy”
means the Financial Guaranty Insurance Policy No. 06030109 dated
September 26, 2006, including any endorsements thereto, issued by the
Insurer to the Trustee with respect to the Notes, for the benefit of the
Holders.
“Premium”
means the premium payable in accordance with the Premium Letter.
“Premium
Letter” means that certain letter agreement dated as of the date
hereof from the Insurer and acknowledged by the Servicer, the Issuer and the
Trustee setting forth certain fees and other matters referred to herein, as the
same may be amended or supplemented from time to time in accordance therewith
and with this Insurance Agreement.
“Purchase
Agreement” means the Purchase Agreement among AFS SenSub Corp.,
as purchaser, and AmeriCredit Financial Services, Inc., as seller, dated as of
September 18, 2006, as such Purchase Agreement may be amended or
supplemented from time to time.
“Rating
Agencies” means Fitch, Moody’s and S&P.
“Receivables”
means the Initial Receivables listed on Schedule A attached to the Sale
and Servicing Agreement and the Subsequent Receivables listed on
Schedule A to each Subsequent Transfer Agreement (which Schedules may be
in the form of microfiche or disk).
“Reimbursement
Amounts” shall mean, as of any Distribution Date, the sum of
(x)(i) all Insured Payments paid by the Insurer, but for which the Insurer has
not been reimbursed prior to
6
such Distribution Date
pursuant to Section 3.03 of the Insurance Agreement, Section 5.6 of
the Indenture and Section 5.7 of the Sale and Servicing Agreement, plus
(ii) interest accrued on such Insured Payments not previously repaid
calculated at the Late Payment Rate from the date the Trustee, or any other
Person at its direction, received the related Insured Payments or the date such
Insured Payments were made, (y) without duplication (i) any amounts
then due and owing to the Insurer under this Insurance Agreement,
Section 5.6 of the Indenture and Section 5.7 of the Sale and
Servicing Agreement, as certified to the Trustee by the Insurer plus (ii) interest
on such amounts at the Late Payment Rate and (z) without duplication
(i) any Insurer Optional Deposits plus (ii) interest on such amounts
at the Late Payment Rate.
“Responsible
Officer” means, with respect to the Trustee or the Trust
Collateral Agent, any officer within the Corporate Trust Office of the Trustee
or any AmeriCredit Party, including any Executive Vice President, Senior Vice
President, Vice President, Assistant Vice President, Treasurer, Assistant
Treasurer, Assistant Secretary, or any other officer of the Trustee or the
Trust Collateral Agent customarily performing functions similar to those
performed by any of the above-designated officers and also, with respect to a
particular matter, any other officer to whom such matter is referred because of
such officer’s knowledge of and familiarity with the particular subject.
“Sale
and Servicing Agreement” means the Sale and Servicing Agreement,
dated as of September 18, 2006, among the Issuer, the Seller, the Servicer, and
Wells Fargo Bank, National Association, as Trust Collateral Agent and as Backup
Servicer (in such capacity, the “Backup Servicer”), as the same may
be amended or supplemented from time to time.
“Securities
Act” means the Securities Act of 1933, including, unless the
context otherwise requires, the rules and regulations promulgated 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
promulgated thereunder, as amended from time to time.
“Seller”
has the meaning specified in the initial paragraph hereof.
“Servicer”
has the meaning specified in the recitals hereof.
“Servicer
Termination Event” has the meaning specified in Section 9.1
of the Sale and Servicing Agreement.
“Servicing
Policy and Procedures” means the policies and procedures set
forth on Schedule C to the Sale and Servicing Agreement, and any
amendments thereto.
“S&P”
means Standard & Poor’s, a division of The McGraw-Hill Companies,
Inc., and any successor thereto.
“Spread
Account” means the account designated as such, established and
maintained pursuant to the Spread Account Agreement.
7
“Spread
Account Agreement” means the Spread Account Agreement dated as of
September 18, 2006, among the Insurer, the Issuer, the Trustee and the
Collateral Agent, as the same may be modified, supplemented or otherwise
amended in accordance with its terms thereof.
“Tangible
Net Worth” means, with respect to any Person, the net worth of
such Person calculated in accordance with GAAP, after subtracting therefrom the
aggregate amount of such Person’s intangible assets, including, without
limitation, goodwill, franchises, licenses, patents, trademarks, copyrights and
service marks.
“Transaction”
means the transactions contemplated by the Transaction Documents.
“Transaction
Documents” means this Insurance Agreement, the Underwriting
Agreement, the Sale and Servicing Agreement, each Subsequent Purchase
Agreement, each Subsequent Transfer Agreement, the Premium Letter, the
Certificate of Trust, the Trust Agreement, the Purchase Agreement, the
Indenture, the Spread Account Agreement, the Custodian Agreement, the Lockbox
Agreement, the Notes and all other documents and certificates delivered in
connection therewith except for the Policy.
“Transaction
Parties” means the AmeriCredit Parties, the Servicer, the Trust
Collateral Agent, the Collateral Agent, the Backup Servicer, the Custodian and
the Trustee.
“Trigger
Event” shall have the meaning set forth in the Spread Account
Agreement.
“Trust
Agreement” means the Trust Agreement dated as of
September 6, 2006 between AFS SenSub Corp., as Seller and Wilmington Trust
Company, as Owner Trustee, as amended and restated as of September 18,
2006, as the same may be amended and supplemented from time to time.
“Underwriter
Information” shall have the meaning set forth in the
Indemnification Agreement.
“Underwriters” shall mean Deutsche Bank Securities Inc., Credit Suisse Securities (USA) LLC, UBS Securities LL






