Exhibit 10.4

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MBIA INSURANCE CORPORATION,

as Insurer

 

AMERICREDIT MTN CORP. IV,

as Seller

 

AMERICREDIT FINANCIAL SERVICES, INC.,

Individually and as Servicer, Custodian and Seller

 

AMERICREDIT MTN RECEIVABLES TRUST IV,

as Debtor

 

JPMORGAN CHASE BANK,

as Collateral Agent and Securities Intermediary

 

INSURANCE AGREEMENT

 

$650,000,000

AmeriCredit MTN Receivables Trust IV

Note

 

Dated as of October 1, 2004

 

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TABLE OF CONTENTS        

 

ARTICLE I
DEFINITIONS				1
ARTICLE II
REPRESENTATIONS, WARRANTIES AND COVENANTS
Section 2.01.		Representation and Warranties of AmeriCredit, the Servicer, the Custodian, the Sellers and the Debtor		5
Section 2.02.		Affirmative Covenants of the Servicer, AmeriCredit, the Custodian, the Sellers and the Debtor		9
Section 2.03.		Negative Covenants of AmeriCredit, the Servicer, the Custodian, the Sellers and the Debtor		16
Section 2.04.		Representations, Warranties and Covenants of the Collateral Agent and Securities Intermediary		17
ARTICLE III
THE POLICY; REIMBURSEMENT
Section 3.01.		Issuance of the Policy		19
Section 3.02.		Payment of Fees and Insurer Premium		21
Section 3.03.		Reimbursement and Additional Payment Obligation		22
Section 3.04.		Indemnification; Limitation of Liability		24
Section 3.05.		Payment Procedure		26
ARTICLE IV
FURTHER AGREEMENTS
Section 4.01.		Effective Date; Term of the Insurance Agreement		26
Section 4.02.		Further Assurances and Corrective Instruments		27
Section 4.03.		Obligations Absolute		27
Section 4.04.		Assignments; Reinsurance; Third-party Rights		29
Section 4.05.		Liability of the Insurer		29
Section 4.06.		Parties Will Not Institute Insolvency Proceedings		30
Section 4.07.		Collateral Agent and Securities Intermediary, Debtor, the Sellers, Custodian and Servicer To Join in Enforcement Action		30
Section 4.08.		Subrogation		30
Section 4.09.		Insurer’s Rights Regarding Actions, Proceedings or Investigations		30
ARTICLE V
DEFAULTS; REMEDIES
Section 5.01.		Defaults		31

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Section 5.02.		Remedies; No Remedy Exclusive		33
Section 5.03.		Waivers		33
ARTICLE VI
MISCELLANEOUS
Section 6.01.		Amendments, Etc		34
Section 6.02.		Notices		34
Section 6.03.		Severability		36
Section 6.04.		Governing Law		36
Section 6.05.		Consent to Jurisdiction		36
Section 6.06.		Consent of the Insurer		37
Section 6.07.		Counterparts		37
Section 6.08.		Headings		37
Section 6.09.		Trial by Jury Waived		37
Section 6.10.		Limited Liability		37
Section 6.11.		Entire Agreement		37

 

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INSURANCE AGREEMENT

 

INSURANCE AGREEMENT (this “Insurance Agreement”), dated as of October 1, 2004 by and among AMERICREDIT MTN CORP. IV (“AMTN”) and AMERICREDIT FINANCIAL SERVICES, INC. as Sellers (each a “Seller,” collectively the “Sellers”), AMERICREDIT FINANCIAL SERVICES, INC., individually (“AmeriCredit”) and in its capacity as Servicer under the Servicing and Custodian Agreement described below (together with its permitted successors and assigns, the “Servicer”) and as Custodian (the “Custodian”), AMERICREDIT MTN RECEIVABLES TRUST IV, as Debtor (the “Debtor”), MBIA INSURANCE CORPORATION (the “Insurer”) and JPMORGAN CHASE BANK, as Collateral Agent (the “Collateral Agent”) and as Securities Intermediary (the “Securities Intermediary”).

 

WHEREAS, pursuant to the Security Agreement dated as of October 1, 2004 by and among the Purchaser, the Debtor, AmeriCredit, the Servicer, AMTN, the Collateral Agent and the Securities Intermediary (the “Security Agreement”) relating to the $650,000,000 AmeriCredit MTN Receivables Trust IV Note (the “Note”) the Debtor assigns certain Collateral (as defined therein) to secure the performance of certain obligations of the Debtor for the benefit of the Purchaser, the Insurer and the other Secured Parties, and the Insurer has issued its note guaranty insurance policy (the “Policy”) that guarantees certain payments due from the Debtor on the Note; and

 

WHEREAS, the Insurer shall be paid an insurance premium pursuant to the Security Agreement and the details of such premium are set forth herein; and

 

WHEREAS, AmeriCredit, the Servicer, the Sellers, the Custodian and the Debtor have undertaken certain obligations in consideration of the Insurer’s issuance of the Policy;

 

NOW, THEREFORE, in consideration of the premises and the mutual agreements herein contained, the parties hereto agree as follows:

 

ARTICLE I

 

DEFINITIONS

 

The terms defined in this Article I shall have the meanings provided herein for all purposes of this Insurance Agreement, unless the context clearly requires otherwise, in both singular and plural form, as appropriate. Unless the context clearly requires otherwise, all capitalized terms used herein and not otherwise defined in this Article I shall have the meanings assigned to them in the Security Agreement or the Servicing and Custodian Agreement, as applicable. All words used herein shall be construed to be of such gender or number as the circumstances require. This “Insurance Agreement” shall mean this Insurance Agreement as a whole and as the same may, from time to time hereafter, be amended, supplemented or modified. The words “herein,” “hereby,” “hereof,” “hereto,” “hereinabove” and “hereinbelow,” and words of similar import, refer to this Insurance Agreement as a whole and not to any particular paragraph, clause or other subdivision hereof, unless otherwise specifically noted.

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“Administrative Agent” means MBIA Insurance Corporation.

 

“Business Day” means any day other than (a) a Saturday or a Sunday (b) a day on which the Insurer is closed or (c) a day on which banking institutions in New York City, Fort Worth, Texas, or in the city in which the corporate trust office of the Collateral Agent under the Security Agreement is located are authorized or obligated by law or executive order to close.

 

“Code” means the Internal Revenue Code of 1986, including, unless the context otherwise requires, the rules and regulations thereunder, as amended from time to time.

 

“Collateral Agent” means JPMorgan Chase Bank, a New York banking corporation, as collateral agent under the Security Agreement, and any successor to the Collateral Agent under the Security Agreement.

 

“Commission” means the Securities and Exchange Commission.

 

“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.

 

“Event of Default” means any event of default 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.

 

“Fiscal Agent” means the Fiscal Agent, if any, designated pursuant to the terms of the Policy.

 

“Insurer Premium” means the premium payable in accordance with Section 3.02 hereof.

 

“Investment Company Act” means the Investment Company Act of 1940, including, unless the context otherwise requires, the rules and regulations thereunder, as amended.

 

“Late Payment Rate” means, for any date of determination, the rate of interest as it is publicly announced by Citibank, N.A. at its principal office in New York, New York as its prime rate (any change in such prime rate of interest to be effective on the date such change is announced by Citibank, N.A.) plus 2%. The Late Payment Rate shall be computed on the basis of a year of 365 days, calculating the actual number of days elapsed. In no event shall the Late Payment Rate exceed the maximum rate permissible under any applicable law limiting interest rates.

 

“Liabilities” shall have the meaning ascribed to such term in Section 3.04(a) hereof.

 

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“Losses” means (a) any actual out-of-pocket loss paid by the Insurer or its respective parents, subsidiaries and affiliates or any shareholder, director, officer, employee, agent or any “controlling person” (as such term is used in the Securities Act) of any of the foregoing and (b) any actual out-of-pocket costs and expenses paid by such party, including reasonable fees and expenses of its counsel, to the extent not paid, satisfied or reimbursed from funds provided by any other Person (provided that the foregoing shall not create or imply any obligation to pursue recourse against any such other Person).

 

“Master Receivables Purchase Agreement” means the Master Receivables Purchase Agreement dated as of October 1, 2004 among AMTN, as Seller, AmeriCredit, individually and as Seller, the Debtor and the Collateral Agent, as the same may be amended or supplemented from time to time in accordance with the terms thereof.

 

“Material Adverse Change” means, in respect of any Person, a material adverse change in (a) the business, financial condition, results of operations or properties of such Person or (b) the ability of such Person to perform its obligations under any of the Transaction Documents.

 

“Moody’s” means Moody’s Investors Service, Inc., a Delaware corporation, and any successor thereto, and, if such corporation shall for any reason no longer perform the functions of a securities rating agency, “Moody’s” shall be deemed to refer to any other nationally recognized rating agency designated by the Insurer.

 

“Note Purchase Agreement” means the Note Purchase Agreement, dated as of September 21, 2004 among the Purchaser, the Debtor, the Servicer and the Administrative Agent with respect to the issuance of the Note, as the same may be amended from time to time.

 

“Obligor” means the original obligor under each Receivable, including any guarantor of such obligor and their respective successors.

 

“Opinion Facts and Assumptions” means the facts and assumptions contained in the insolvency opinion dated October 1, 2004 by Dewey Ballantine LLP and the officer’s certificates attached as exhibits thereto insofar as they relate to AMTN, AmeriCredit and the Debtor.

 

“Owner” shall have the meaning set forth in the Policy.

 

“Person” means an individual, joint stock company, trust, unincorporated association, joint venture, corporation, business or owner trust, limited liability company, partnership or other organization or entity (whether governmental or private).

 

“Premium Letter” means the Premium Letter from the Insurer to AmeriCredit dated October 1, 2004.

 

“Premium Percentage” shall have the meaning ascribed to such term in Section 3.02 hereof.

 

“Purchaser” means Meridian Funding Company, LLC.

 

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“Sale and Contribution Agreement” means the Sale and Contribution Agreement dated as of October 1, 2004 between AMTN and AmeriCredit Financial Services, Inc. as the same may be amended or supplemented from time to time in accordance with the terms thereof.

 

“Securities Act” means the Securities Act of 1933, including, unless the context otherwise requires, the rules and regulations thereunder, as amended from time to time.

 

“Securities Exchange Act” means the Securities Exchange Act of 1934, including, unless the context otherwise requires, the rules and regulations thereunder, as amended from time to time.

 

“Security Agreement” means the Security Agreement dated as of October 1, 2004 among the Debtor, AmeriCredit, AMTN, the Collateral Agent and the Securities Intermediary as the same may be amended or supplemented from time to time in accordance with the terms thereof.

 

“Servicing and Custodian Agreement” means the Servicing and Custodian Agreement dated as of October 1, 2004 between the Custodian, the Servicer, the Debtor and the Collateral Agent as the same may be amended or supplemented from time to time in accordance with the terms thereof.

 

“Standby Servicer” means Systems & Services Technologies, Inc., and its successors and assigns, and any successor standby servicer appointed by the Insurer.

 

“Standby Servicing Agreement” means the Standby Servicing and Successor Servicer Agreement dated as of October 1, 2003 among AmeriCredit, as initial servicer and custodian, the Debtor, the Insurer, the Collateral Agent and the Standby Servicer, and any other agreement pursuant to which a Standby Servicer agrees to assume the obligations of the Servicer following the termination or resignation of the Servicer, together with any amendment or supplement thereto.

 

“S&P” means Standard & Poor’s Ratings Services, a division of The McGraw-Hill Companies, Inc., and any successor thereto, and, if such corporation shall for any reason no longer perform the functions of a securities rating agency, “S&P” shall be deemed to refer to any other nationally recognized rating agency designated by the Insurer.

 

“Term of the Insurance Agreement” shall be determined as provided in Section 4.01 hereof.

 

“Transaction” means the transactions contemplated by the Transaction Documents, including the transactions described in the Transaction Documents.

 

“Transaction Documents” means the Security Agreement, the Master Receivables Purchase Agreement, the Servicing and Custodian Agreement, the Standby Servicing Agreement, the Trust Agreement, the Tri-Party Remittance Processing Agreement, this Insurance Agreement, the Premium Letter, the Note Purchase Agreement, the Sale and Contribution Agreement, the Note and each Hedging Arrangement.

 

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“Tri-Party Remittance Processing Agreement” means the Tri-Party Remittance Processing Agreement dated as of October 1, 2004 among the Servicer, the Collateral Agent and Bank One, NA as Processor, as the same may be amended or supplemented from time to time in accordance with the terms thereof.

 

“Trust Agreement” means the Amended and Restated Trust Agreement dated as of October 1, 2004 among AmeriCredit, AMTN and Wilmington Trust Company, as Trustee, as the same may be amended or supplemented from time to time in accordance with the terms thereof.

 

“Trust Indenture Act” means the Trust Indenture Act of 1939, including, unless the context otherwise requires, the rules and regulations thereunder, as amended from time to time.

 

ARTICLE II

 

REPRESENTATIONS, WARRANTIES AND COVENANTS

 

Section 2.01. Representation and Warranties of AmeriCredit, the Servicer, the Custodian, the Sellers and the Debtor. AmeriCredit, the Servicer, the Custodian, each Seller and the Debtor represent, warrant and covenant as of the Date of Issuance, each as to those matters relating to itself, as follows:

 

(a) Due Organization and Qualification. The Servicer, AmeriCredit, the Custodian, the Sellers and the Debtor are each a corporation or a Delaware statutory trust, duly organized, validly existing and in good standing under the laws of its respective jurisdiction of organization. Each of the Servicer, AmeriCredit, the Custodian, the Sellers and the Debtor is duly qualified to do business, is in good standing and has obtained all licenses, permits, charters, registrations and approvals (together, “approvals”) necessary for the conduct of its business as currently conducted and as described in the Transaction Documents and the performance of its obligations under the Transaction Documents in each jurisdiction in which the failure to be so qualified or to obtain such approvals would render any Transaction Document unenforceable in any respect or would have a material adverse effect upon the Transaction, the Owner or the Insurer.

 

(b) Power and Authority. Each of the Servicer, AmeriCredit, the Custodian, the Sellers and the Debtor has all necessary power and authority to conduct its business as currently conducted and, as described in the Transaction Documents, to execute, deliver and perform its obligations under the Transaction Documents and to consummate the Transaction.

 

(c) Due Authorization. The execution, delivery and performance of the Transaction Documents by the Servicer, AmeriCredit, the Custodian, the Sellers and the Debtor have been duly authorized by all necessary action and do not require any additional approvals or consents of, or other action by or any notice to or filing with, any Person, including, without limitation, any governmental entity or the Servicer’s, AmeriCredit’s, the Custodian’s, the Sellers’ or the Debtor’s stockholders, which have not previously been obtained or given by the Servicer, AmeriCredit, the Custodian, the Sellers or the Debtor.

 

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(d) Noncontravention. None of the execution and delivery of the Transaction Documents by the Servicer, AmeriCredit, the Custodian, the Sellers or the Debtor, the consummation of the transactions contemplated thereby or the satisfaction of the terms and conditions of the Transaction Documents:

 

(i) conflicts with or results in any breach or violation of any provision of the organizational documents of the Servicer, AmeriCredit, the Custodian, the Sellers or the Debtor or any law, rule, regulation, order, writ, judgment, injunction, decree, determination or award currently in effect having applicability to the Servicer, AmeriCredit, the Custodian, the Sellers or the Debtor or any of their material properties, including regulations issued by an administrative agency or other governmental authority having supervisory powers over the Servicer, AmeriCredit, the Custodian, the Sellers or the Debtor;

 

(ii) constitutes a default by the Servicer, AmeriCredit, the Custodian, the Sellers or the Debtor under or a breach of any provision of any loan agreement, mortgage, indenture or other agreement or instrument to which the Servicer, AmeriCredit, the Custodian, the Sellers or the Debtor is a party or by which any of its or their respective properties, which are individually or in the aggregate material to the Servicer, AmeriCredit, the Custodian, the Sellers or the Debtor, is or may be bound or affected; or

 

(iii) results in or requires the creation of any lien upon or in respect of any assets of the Servicer, AmeriCredit, the Custodian, the Sellers or the Debtor, except as contemplated by the Transaction Documents.

 

(e) Legal Proceedings. There is no action, proceeding or investigation by or before any court, governmental or administrative agency or arbitrator against or affecting the Servicer, AmeriCredit, the Custodian, the Sellers, the Debtor or any of its or their subsidiaries, or any properties or rights of the Servicer, AmeriCredit, the Custodian, the Sellers, the Debtor or any of its or their subsidiaries, pending or, to the Servicer’s, AmeriCredit’s, the Custodian’s, the Sellers’ or the Debtor’s knowledge after reasonable inquiry, threatened, which in any case could reasonably be expected to result in a Material Adverse Change with respect to the Servicer, AmeriCredit, the Sellers, the Custodian or Debtor.

 

(f) Valid and Binding Obligations. The Note, when executed, authenticated and issued in accordance with the Note Purchase Agreement, and the Transaction Documents (other than the Note), when executed and delivered by the Servicer, the Sellers, AmeriCredit, the Custodian and the Debtor, will constitute the legal, valid and binding obligations of the Servicer, AmeriCredit, the Custodian, the Sellers and the Debtor, as applicable, enforceable in accordance with their respective terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors’ rights generally and general equitable principles and public policy considerations as to rights of indemnification for violations of federal securities laws. None of the Servicer, AmeriCredit, the Custodian, the Sellers or the

 

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Debtor will at any time in the future deny that the Transaction Documents constitute the legal, valid and binding obligations of the Servicer, AmeriCredit, the Custodian, the Sellers or the Debtor, as applicable.

 

(g) Financial Statements. The Financial Statements of AmeriCredit Corp., copies of which have been furnished to the Insurer by AmeriCredit, (i) are, as of the dates and for the periods referred to therein, complete and correct in all material respects, (ii) present fairly the financial condition and results of operations of AmeriCredit Corp. as of the dates and for the periods indicated and (iii) have been prepared in accordance with generally accepted accounting principles consistently applied, except as noted therein (subject as to interim statements to normal year-end adjustments). Since the date of the most recent Financial Statements, there has been no Material Adverse Change in respect of AmeriCredit Corp., the Custodian, AmeriCredit, the Sellers and the Servicer. Except as disclosed in the Financial Statements, AmeriCredit Corp., the Custodian, AmeriCredit, the Sellers and the Servicer are not subject to any contingent liabilities or commitments that, individually or in the aggregate, have a material possibility of causing a Material Adverse Change in respect of AmeriCredit Corp., the Custodian, AmeriCredit, the Sellers and the Servicer.

 

(h) Compliance With Law, Etc. No practice, procedure or policy employed, or proposed to be employed, by the Servicer, the Custodian, AmeriCredit, the Sellers or the Debtor in the conduct of its business violates any law, regulation, judgment, agreement, order or decree applicable to any of them that, if enforced, could reasonably be expected to result in a Material Adverse Change with respect to the Servicer, the Custodian, AmeriCredit, the Sellers or the Debtor. The Servicer, the Custodian, AmeriCredit, the Sellers and the Debtor are not in breach of or in default under any applicable law or administrative regulation of its respective jurisdiction of organization, or any department, division, agency or instrumentality thereof or of the United States or any applicable judgment or decree or any loan agreement, note, resolution, certificate, agreement or other instrument to which the Servicer, the Custodian, AmeriCredit, the Sellers or the Debtor is a party or is otherwise subject which, if enforced, would have a material adverse effect on the ability of the Servicer, the Custodian, AmeriCredit, the Sellers or the Debtor, as the case may be, to perform its respective obligations under the Transaction Documents.

 

(i) Taxes. The Servicer, AmeriCredit, the Custodian, the Sellers and the Debtor and the Servicer’s, AmeriCredit’s, the Custodian’s, the Sellers’ and the Debtor’s parent company or companies have filed prior to the date hereof all federal and state tax returns that are required to be filed and paid all taxes, including any assessments received by them that are not being contested in good faith, to the extent that such taxes have become due, except for any failures to file or pay that, individually or in the aggregate, would not result in a Material Adverse Change with respect to the Servicer, AmeriCredit, the Custodian, the Sellers or the Debtor.

 

(j) Accuracy of Information. Neither the Transaction Documents nor other information relating to the Receivables, the operations of the Servicer, AmeriCredit, the

 

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Custodian, the Sellers or the Debtor (including servicing or origination of loans) or the financial condition of the Servicer, AmeriCredit, the Custodian, the Sellers or the Debtor (collectively, the “Documents”), as amended, supplemented or superseded, furnished to the Insurer by the Servicer, the Custodian, AmeriCredit, the Sellers or the Debtor contains any statement of a material fact by the Servicer, the Custodian, AmeriCredit, the Sellers or Debtor which was untrue or misleading in any material adverse respect when made. None of the Servicer, AmeriCredit, the Custodian, the Sellers or the Debtor has any knowledge of circumstances that could reasonably be expected to cause a Material Adverse Change with respect to the Servicer, AmeriCredit, the Custodian, the Sellers or the Debtor. Since the furnishing of the Documents, there has been no change or any development or event involving a prospective change known to the Servicer, AmeriCredit, the Custodian, the Sellers or the Debtor that would render any of the Documents untrue or misleading in any material respect.

 

(k) Compliance With Securities Laws. The offer and sale of the Note comply in all material respects with all requirements of law, including all registration requirements of applicable securities laws. Neither the offer nor the sale of the Note has been or will be in violation of the Securities Act or any other federal or state securities laws. The Debtor is not required to be registered as an “investment company” under the Investment Company Act.

 

(l) Transaction Documents. Each of the representations and warranties of the Servicer, AmeriCredit, the Custodian, the Sellers and the Debtor contained in the Transaction Documents is true and correct in all material respects, and the Servicer, AmeriCredit, the Custodian, the Sellers and the Debtor hereby make each such representation and warranty to, and for the benefit of, the Insurer as if the same were set forth in full herein.

 

(m) Solvency; Fraudulent Conveyance. The Servicer, AmeriCredit, the Custodian, the Sellers and the Debtor are solvent and will not be rendered insolvent by the Transaction and, after giving effect to the Transaction, none of the Servicer, AmeriCredit, the Custodian, the Sellers or the Debtor will be left with an unreasonably small amount of capital with which to engage in its business, nor does the Servicer, AmeriCredit, the Custodian, the Sellers or the Debtor intend to incur, or believe that it has incurred, debts beyond its ability to pay as they mature. None of the Servicer, AmeriCredit, the Custodian, the Sellers or the Debtor contemplates the commencement of insolvency, bankruptcy, liquidation or consolidation proceedings or the appointment of a receiver, liquidator, conservator, trustee or similar official in respect of the Servicer, AmeriCredit, the Custodian, the Sellers or the Debtor or any of their assets. The amount of consideration being received by the Debtor upon the sale of the Note to the Purchaser constitutes reasonably equivalent value and fair consideration for the interest in the Receivables securing the Note. The Sellers are not transferring the Receivables to the Debtor, the Debtor is not pledging the Receivables to the Secured Parties and the Debtor is not selling the Note to the Purchaser, as provided in the Transaction Documents, with any intent to hinder, delay or defraud any of the Seller’s, AmeriCredit’s, the Custodian’s or the Debtor’s creditors.

 

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(n) Principal Place of Business. The principal place of business of AmeriCredit, the Servicer and the Custodian is located in Fort Worth, Texas, the principal place of business of AMTN is located in Fort Worth, Texas and the principal place of business of the Debtor is located in Wilmington, Delaware.

 

(o) Opinion Facts and Assumptions. The Opinion Facts and Assumptions insofar as they relate to AMTN, AmeriCredit and the Debtor are true and correct as of the Date of Issuance.

 

Section 2.02. Affirmative Covenants of the Servicer, AmeriCredit, the Custodian, the Sellers and the Debtor. The Servicer, AmeriCredit, the Custodian, the Sellers and the Debtor hereby agree that during the Term of the Insurance Agreement, unless the Insurer shall otherwise expressly consent in writing:

 

(a) Compliance With Agreements and Applicable Laws. The Servicer, AmeriCredit, the Custodian, the Sellers and the Debtor shall not be in default under the Transaction Documents and shall comply with all material requirements of any law, rule or regulation applicable to it. None of the Servicer, AmeriCredit, the Custodian, the Sellers or the Debtor shall agree to any amendment to or modification of the terms of any Transaction Documents unless the Insurer shall have given its prior written consent.

 

(b) Corporate Existence. The Servicer, its successors and assigns, AmeriCredit, its successors and assigns, the Custodian, its successors and assigns, the Sellers, its successor and assigns and the Debtor, its successors and assigns, shall maintain their corporate or statutory trust existence and shall at all times continue to be duly organized under the laws of their respective jurisdictions of organization and duly qualified and duly authorized (as described in section 2.01(a), (b) and (c) hereof) and shall conduct its business in accordance with the terms of its certificate or articles of incorporation, bylaws and organizational documents.

 

(c) Financial Statements; Accountants’ Reports; Other Information. The Servicer, AmeriCredit, the Custodian, the Sellers and the Debtor shall keep or cause to be kept in reasonable detail books and records of account of their assets and business, including, but not limited to, books and records relating to the Transaction. The Servicer shall furnish or cause to be furnished to the Insurer:

 

(i) Annual Financial Statements. As soon as available, and in any event within 120 days after the close of each fiscal year of AmeriCredit Corp., the audited consolidated balance sheets of AmeriCredit Corp., and its subsidiaries as of the end of such fiscal year and the related audited consolidated statements of income, changes in shareholders’ equity and cash flows for such fiscal year, all in reasonable detail and stating in comparative form the respective figures for the corresponding date and period in the preceding fiscal year, prepared in accordance with generally accepted accounting principles consistently applied and accompanied by the audit opinion of AmeriCredit Corp’s independent accountants (which shall be nationally recognized independent public accounting firms) and by the certificate specified in Section 2.02(e) hereof.

 

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(ii) Quarterly Financial Statements. As soon as available, and in any event within 90 days after each of the first three fiscal quarters of each fiscal year of AmeriCredit Corp., the unaudited consolidated balance sheets of AmeriCredit Corp. and its subsidiaries as of the end of such fiscal quarter and the related unaudited consolidated statements of income, changes in shareholders’ equity and cash flows for such fiscal quarter, all in reasonable detail and stating in comparative form the respective figures for the corresponding date and period in the preceding fiscal year, prepared in accordance with generally accepted accounting principles consistently applied and accompanied by the certificate specified in Section 2.02(e) hereof.

 

(iii) Initial and Continuing Reports. On or before the Closing Date, the Servicer will provide the Insurer a copy of the magnetic tape to be delivered to the Collateral Agent on the Closing Date, setting forth, as to each Receivable, the information (as of the close of business on the prior day) required under the definition of “Schedule of Receivables” at Section 1.2 of the Master Receivables Purchase Agreement. Thereafter, the Servicer shall deliver to the Insurer not later than 5:00p.m., New York City time, on each Determination Date the report required by Section 2.9 of the Servicing and Custodian Agreement.

 

(iv) Computer Diskette. Upon request of the Insurer, the Servicer will deliver to the Insurer on a quarterly basis a computer diskette containing a summary of the information provided to the Insurer pursuant to clause (iii) of this Section 2.02(c) and also containing information similar to the information provided in the Schedule of Receivables and the Supplements delivered to the Collateral Agent pursuant to the Master Receivables Purchase Agreement and described in Exhibit A of the Master Receivables Purchase Agreement.

 

(v) Certain Information. Upon the reasonable request of the Insurer, the Servicer shall promptly provide copies of any requested proxy statements, financial statements, reports and registration statements which the Servicer, the Sellers or the Custodian files with, or delivers to, the Commission or any national securities exchange.

 

(vi) Other Information. Promptly upon receipt thereof, copies of all schedules, financial statements or other similar reports delivered to or by AmeriCredit, the Servicer, the Custodian, the Sellers or the Debtor pursuant to the terms of the Security Agreement and the Servicing and Custodian Agreement and, promptly upon request, such other data as the Insurer may reasonably request.

 

All financial statements specified in clause (i) of this Section 2.02(c) shall be furnished in consolidated form for AmeriCredit Corp. and all its subsidiaries in the event AmeriCredit Corp. shall consolidate its financial statements with its subsidiaries.

 

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The Insurer agrees that it and its agents, accountants and attorneys shall keep confidential all financial statements, reports and other information delivered by the Servicer pursuant to this Section 2.02(c) to the extent provided in Section 2.02(f) hereof.

 

(d) Reserved.

 

(e) Compliance Certificate. AmeriCredit, the Servicer and the Sellers shall deliver to the Insurer, concurrently with the delivery of the financial statements required pursuant to Section 2.02(c)(i) and (ii) hereof, one or more certificates signed by an officer of AmeriCredit, an officer of the Servicer and an officer of the applicable Seller authorized to execute such certificates on behalf of AmeriCredit, the Servicer and the Sellers stating that:

 

(i) a review of the Servicer’s performance under the Transaction Documents during such period has been made under such officer’s supervision;

 

(ii) to the best of such individual’s knowledge following reasonable inquiry, no Default or Event of Default has occurred or, if a Default or Event of Default has occurred, specifying the nature thereof and, if the Servicer has a right to cure pursuant to Section 4.1 of the Servicing and Custodian Agreement, stating in reasonable detail (including, if applicable, any supporting calculations) the steps, if any, being taken by the Servicer to cure such Default or Event of Default or to otherwise comply with the terms of the agreement to which such Default or Event of Default relates;

 

(iii) the attached financial statements submitted in accordance with Section 2.02(c)(i) or (ii) hereof, as the case may be, are complete and correct in all material respects and present fairly the financial condition and results of operations of AmeriCredit, the Sellers and the Servicer as of the dates and for the periods indicated, in accordance with generally accepted accounting principles consistently applied; and

 

(iv) the Servicer has in full force and effect a blanket fidelity bond (or direct surety bond) and an errors and omissions insurance policy in accordance with the terms and requirements of Section 2.14 of the Servicing and Custodian Agreement.

 

(f) Access to Records; Discussions With Officers and Accountants. On an annual basis, or upon the occurrence of a Material Adverse Change, a Default or an Event of Default, AmeriCredit, the Servicer, the Sellers and the Custodian shall, upon the reasonable request of the Insurer, permit the Insurer or its authorized agents:

 

(i) to inspect the books and records of AmeriCredit, the Servicer, the Sellers and of the Custodian as they may relate to the Note, the obligations of AmeriCredit, the Servicer, the Sellers or of the Custodian under the Transaction Documents, and the Transaction;

 

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(ii) to discuss the affairs, finances and accounts of AmeriCredit, the Servicer, the Sellers or of the Custodian with the chief operating officer and the chief financial officer of the Servicer, the Sellers or of the Custodian, as the case may be; and

 

(iii) with AmeriCredit’s, the Servicer’s, the Sellers’ or the Custodian’s consent, as applicable, which consent shall not be unreasonably withheld, to discuss the affairs, finances and accounts of AmeriCredit, the Servicer, the Sellers or the Custodian with AmeriCredit’s, the Servicer’s, the Sellers’ or the Custodian’s independent accountants, provided that an officer of AmeriCredit, the Servicer, the Sellers or the Custodian shall have the right to be present during such discussions.

 

Such inspections and discussions shall be conducted during normal business hours and shall not unreasonably disrupt the business of AmeriCredit, the Servicer, the Sellers or the Custodian. The books and records of AmeriCredit shall be maintained at the address of AmeriCredit designated herein for receipt of notices, unless AmeriCredit shall otherwise advise the parties hereto in writing. The books and records of each Seller shall be maintained at the address of the applicable Seller designated herein for receipt of notices, unless the applicable Seller shall otherwise advise the parties hereto in writing. The books and records of the Servicer shall be maintained at the address of the Servicer designated herein for receipt of notices, unless the Servicer shall otherwise advise the parties hereto in writing. The books and records of the Custodian shall be maintained at the address of the Custodian designated herein for receipt of notices, unless the Custodian shall otherwise advise the parties hereto in writing.

 

The Insurer agrees that it and its shareholders, directors, agents, accountants and attorneys shall keep confidential any matter of which it becomes aware through such inspections or discussions (unless readily available from public sources), except as may be otherwise required by regulation, law or court order or requested by appropriate governmental authorities or as necessary to preserve its rights or security under or to enforce the Transaction Documents, provided that the foregoing shall not limit the right of the Insurer to make such information available to its regulators, securities rating agencies, reinsurers, credit and liquidity providers, counsel and accountants.

 

(g) Notice of Material Events. AmeriCredit, the Servicer, the Sellers, the Custodian and the Debtor shall be obligated (which obligation shall be satisfied as to each if performed by AmeriCredit, the Servicer, the Sellers, the Custodian or the Debtor) promptly to inform the Insurer in writing of the occurrence of any of the following to the extent any of the following relate to it:

 

(i) the submission of any claim or the initiation or threat of any legal process, litigation or administrative or judicial investigation or rule making or disciplinary proceeding in any federal, state or local court or before any arbitration board, or any such proceeding threatened by any government agency, that has a reasonable likelihood of being adversely determined and (A) if so determined,

 

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could have a material adverse effect on the Debtor, the Owner or the Insurer, (B) would be required to be disclosed to the Commission or to AmeriCredit’s, the Servicer’s, a Seller’s, the Custodian’s or the Debtor’s shareholders or (C) would result in a Material Adverse Change with respect to AmeriCredit, the Servicer, the Custodian, the Sellers or the Debtor;

 

(ii) any change in the location of AmeriCredit’s, the Servicer’s, the Custodian’s, a Seller’s or the Debtor’s principal office or any change in the location of AmeriCredit’s, the Servicer’s, the Custodian’s, a Seller’s or the Debtor’s books and records;

 

(iii) the occurrence of any Default or Event of Default or of any Mate