EXHIBIT 10.5
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SPREAD ACCOUNT AGREEMENT
among
AMERICREDIT AUTOMOBILE RECEIVABLES TRUST 2007-A-X,
as Issuer,
XL CAPITAL ASSURANCE INC.,
as Insurer,
and
▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION,
as Trustee, as Trust Collateral Agent and as Collateral Agent
Dated as of January 9, 2007
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TABLE OF CONTENTS
Page
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ARTICLE I
DEFINITIONS
SECTION 1.01. Definitions ............................................. 1
SECTION 1.02. Other Definitional Provisions ........................... 11
ARTICLE II
THE SPREAD ACCOUNT AGREEMENT COLLATERAL
SECTION 2.01. Grant of Security Interest by the Issuer ................ 12
SECTION 2.02. Priority ................................................ 12
SECTION 2.03. Issuer Remains Liable ................................... 13
SECTION 2.04. Delivery and Maintenance of Spread Account Agreement
Collateral .............................................. 13
SECTION 2.05. Termination and Release of Rights ....................... 14
SECTION 2.06. Non-Recourse Obligations of Issuer ...................... 15
ARTICLE III
SPREAD ACCOUNT
SECTION 3.01. Establishment of Spread Account; Initial Deposit into
Spread Account; Maintenance of Spread Account ........... 16
SECTION 3.02. Investments ............................................. 17
SECTION 3.03. Payments; Priority of Payments .......................... 18
SECTION 3.04. General Provisions Regarding Spread Account ............. 20
SECTION 3.05. Reports by the Collateral Agent ......................... 21
SECTION 3.06. Cash Collateralized Receivables ......................... 21
ARTICLE IV
THE COLLATERAL AGENT
SECTION 4.01. Appointment and Powers .................................. 22
SECTION 4.02. Performance of Duties ................................... 22
SECTION 4.03. Limitation on Liability ................................. 22
SECTION 4.04. Reliance upon Documents ................................. 23
SECTION 4.05. Successor Collateral Agent .............................. 23
SECTION 4.06. Indemnification ......................................... 25
SECTION 4.07. Compensation and Reimbursement .......................... 26
SECTION 4.08. Representations and Warranties of the Collateral Agent .. 26
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SECTION 4.09. Waiver of Setoffs ....................................... 26
SECTION 4.10. Control by the Controlling Party ........................ 27
ARTICLE V
COVENANTS OF THE ISSUER
SECTION 5.01. Preservation of Spread Account Agreement Collateral ..... 27
SECTION 5.02. Notices ................................................. 27
SECTION 5.03. Waiver of Stay or Extension Laws; Marshalling of
Assets .................................................. 27
SECTION 5.04. Noninterference, etc .................................... 28
SECTION 5.05. Issuer Changes .......................................... 28
ARTICLE VI
CONTROLLING PARTY; INTERCREDITOR PROVISIONS
SECTION 6.01. Appointment of Controlling Party ........................ 28
SECTION 6.02. Controlling Party's Authority ........................... 29
SECTION 6.03. Rights of Issuer Secured Parties ........................ 30
SECTION 6.04. Degree of Care .......................................... 30
ARTICLE VII
REMEDIES UPON DEFAULT
SECTION 7.01. Remedies upon a Default ................................. 31
SECTION 7.02. Waiver of Default ....................................... 31
SECTION 7.03. Restoration of Rights and Remedies ...................... 31
SECTION 7.04. No Remedy Exclusive ..................................... 31
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01. Further Assurances ...................................... 32
SECTION 8.02. Waiver .................................................. 32
SECTION 8.03. Amendments; Waivers ..................................... 32
SECTION 8.04. Severability ............................................ 32
SECTION 8.05. Nonpetition Covenant .................................... 33
SECTION 8.06. Notices ................................................. 33
SECTION 8.07. Term of this Agreement .................................. 35
SECTION 8.08. Assignments; Third-Party Rights; Reinsurance ............ 35
SECTION 8.09. Consent of Controlling Party ............................ 36
SECTION 8.10. Consents to Jurisdiction ................................ 36
SECTION 8.11. Determination of Adverse Effect ......................... 36
SECTION 8.12. Headings ................................................ 36
SECTION 8.13. TRIAL BY JURY WAIVED .................................... 36
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SECTION 8.14. GOVERNING LAW ........................................... 37
SECTION 8.15. Counterparts ............................................ 37
SECTION 8.16. Limitation of Liability ................................. 37
iii
SPREAD ACCOUNT AGREEMENT
This SPREAD ACCOUNT AGREEMENT, dated as of January 9, 2007 (this
"Agreement"), is among AMERICREDIT AUTOMOBILE RECEIVABLES TRUST 2007-A-X, as
issuer (the "Issuer"), XL CAPITAL ASSURANCE INC., as insurer (the "Insurer"),
and ▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION as trustee (in such capacity, the
"Trustee" ), as trust collateral agent (in such capacity the "Trust Collateral
Agent") and as collateral agent (in such capacity, the "Collateral Agent").
RECITALS
WHEREAS, the Issuer was formed pursuant to the trust agreement dated
as of December 5, 2006 as amended and restated as of January 9, 2007 (as amended
from time to time, the "Trust Agreement"), between AFS SenSub Corp., as seller,
(the "Seller") and Wilmington Trust Company, as owner trustee (the "Owner
Trustee").
WHEREAS, pursuant to a sale and servicing agreement, dated as of
January 9, 2007 (the "Sale and Servicing Agreement") among the Issuer, the
Seller, the Servicer, the Trust Collateral Agent and the Backup Servicer, the
Seller sold to the Issuer all of its right, title and interest in and to the
Receivables and Other Conveyed Property.
WHEREAS, pursuant to the indenture, dated as of January 9, 2007 (the
"Indenture"), among the Issuer, the Trustee and the Trust Collateral Agent, the
Issuer pledged all of its right, title and interest in and to the Collateral to
the Trust Collateral Agent on behalf of the Issuer Secured Parties.
WHEREAS, the Issuer requested that the Insurer issue the Note Policy
to the Trustee to guarantee payment of the "Scheduled Payments" on each
Distribution Date, in respect of the Notes, and the Swap Policy to guarantee
certain payments under the swap agreement.
WHEREAS, in consideration of the issuance of the Note Policy and Swap
Policy, the Issuer and the Servicer have agreed that the Insurer shall have
certain rights as Controlling Party to the extent set forth in the Basic
Documents, with respect to the Collateral.
In consideration of the premises, and for other good and valuable
consideration, the adequacy, receipt and sufficiency of which are hereby
acknowledged the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. DEFINITIONS. Unless otherwise defined in this Agreement,
the following terms shall have the following meanings:
"Accelerated Payment Amount Shortfall" has the meaning set forth in
Section 1.1 of the Sale and Servicing Agreement.
"AmeriCredit" means AmeriCredit Financial Services, Inc.
"Cash Collateral Deposit" has the meaning set forth in Section
3.06(a).
"Cash Collateralized Receivable" means a Delinquent Receivable for
which a deposit has been made to the Spread Account by the Servicer pursuant to
Section 3.06(a).
"Collateral Agent" means, initially ▇▇▇▇▇ Fargo Bank, National
Association, in its capacity as collateral agent on behalf of the Issuer Secured
Parties, including its successors in interest, until a successor Person shall
have become the Collateral Agent pursuant to Section 4.05 and thereafter
"Collateral Agent" shall mean such successor Person.
"Collateral Agent Fee" means as designated in the fee letter between
Collateral Agent and AmeriCredit.
"Controlling Party" means the Person designated as the Controlling
Party at such time pursuant to Section 6.01.
"Cumulative Net Loss" means the positive difference between (i) the
sum of (A) the aggregate Principal Balance of all Liquidated Receivables plus
(B) aggregate Cram Down Losses minus (ii) Liquidation Proceeds received with
respect to the Receivables described in clause (i).
"Cumulative Net Loss Ratio" means the ratio, expressed as a
percentage, computed by dividing: (a) the sum (without duplication) of (i)
Cumulative Net Losses and (ii) the product of (x) 0.50 and (y) the aggregate
Principal Balance of all Receivables which are more than ninety (90) days past
due as of the end of the related Collection Period; by (b) the Initial Pool
Balance.
"Default" means, (i) if the Insurer is then the Controlling Party, any
Insurance Agreement Event of Default and (ii) if the Trustee is then the
Controlling Party, any Event of Default under Section 5.1 of the Indenture.
"Defaulted Receivable" means a Receivable (i) with respect to which
(A) 10% or more of a Scheduled Receivables Payment is more than ninety (90) days
past due, (B) the Servicer has repossessed the related Financed Vehicle (and any
applicable redemption period has expired), or (C) such Receivable is in default
and the Servicer has charged-off such Receivable in accordance with the
servicing policy attached as Schedule C to the Sale and Servicing Agreement or
otherwise has determined in good faith that payment thereunder are not likely to
be resumed, or (ii) which is a Sold Receivable.
"Delinquency Ratio" means, the ratio (expressed as a percentage)
computed by dividing: (a) the aggregate Principal Balance of all Receivables
which were
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Delinquent Receivables as of the close of business on the last day of the
related Collection Period minus the aggregate Principal Balance of all Cash
Collateralized Receivables by (b) the sum of the aggregate Principal Balance of
all Receivables as of the close of business on the first day of the related
Collection Period.
"Delinquent Receivable" means a Receivable with respect to which 10%
or more of a Scheduled Receivables Payment is more than sixty (60) days past due
(excluding (i) Receivables which the Servicer has repossessed the related
Financed Vehicle and (ii) Receivables which have become Liquidated Receivables).
"Final Termination Date" means the date that is the later of (i) the
Insurer Termination Date and (ii) the Trustee Termination Date.
"Gross Default Ratio" means, the ratio expressed as a percentage, the
numerator of which is the aggregate Principal Balance of all Defaulted
Receivables since the Closing Date and the denominator of which is the Initial
Pool Balance.
"Initial Pool Balance" means the Pool Balance as of the Cutoff Date.
"Insurer Termination Date" means the date which is the latest of (i)
the date of the expiration of the Note Policy and the cancellation and return
thereof to the Insurer, (ii) the date on which the Insurer shall have received
payment and performance in full of all Insurer Issuer Secured Obligations and
(iii) the latest date on which any payment referred to above could be avoided as
a preference or otherwise under the United States Bankruptcy Code or any other
similar federal or state law relating to insolvency, bankruptcy, rehabilitation,
liquidation or reorganization, as specified in an Opinion of Counsel delivered
to the Collateral Agent, the Insurer and the Trustee.
"Issuer" means AmeriCredit Automobile Receivables Trust 2007-A-X.
"Issuer Secured Obligations" means the Issuer Secured Obligations
under the Indenture.
"Issuer Secured Parties" means the Issuer Secured Parties under the
Indenture.
"Level 1 Cumulative Net Loss Test" means, for any Distribution Date
specified below, the Cumulative Net Loss Ratio for the related Collection Period
is greater than the percentage set forth opposite such Distribution Date:
Distribution Date occurring in: Percentage
------------------------------- ----------
February 2007 2.00%
March 2007 2.00%
April 2007 2.00%
May 2007 3.25%
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June 2007 3.25%
July 2007 3.25%
August 2007 4.50%
September 2007 4.50%
October 2007 4.50%
November 2007 5.75%
December 2007 5.75%
January 2008 5.75%
February 2008 6.50%
March 2008 7.00%
April 2008 7.50%
May 2008 8.00%
June 2008 8.50%
July 2008 9.00%
August 2008 9.50%
September 2008 10.00%
October 2008 10.50%
November 2008 11.00%
December 2008 11.50%
January 2009 12.00%
February 2009 12.25%
March 2009 12.50%
April 2009 12.75%
May 2009 13.00%
June 2009 13.25%
July 2009 13.50%
August 2009 13.75%
September 2009 14.00%
October 2009 14.25%
November 2009 14.50%
December 2009 14.75%
January 2010 and thereafter 15.00%
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"Level 1 Delinquency Test" means, for any Distribution Date, the
arithmetic average of the monthly Delinquency Ratios for the three immediately
preceding Collection Periods is greater than the percentage set forth opposite
such Distribution Date plus 0.25% for each November through April Distribution
Dates:
Distribution Date occurring in: Percentage
------------------------------- ----------
February 2007 through January 2008 4.00%
February 2008 through January 2009 5.00%
February 2009 through July 2009 5.50%
August 2009 through January 2010 6.00%
February 2010 and thereafter 6.75%
"Level 1 Gross Default Test" means, for any Distribution Date
specified below, the Gross Default Ratio for the related Collection Period is
greater than the percentage set forth opposite such Distribution Date:
Distribution Date occurring in: Percentage
------------------------------- ----------
February 2007 3.33%
March 2007 3.33%
April 2007 3.33%
May 2007 5.42%
June 2007 5.42%
July 2007 5.42%
August 2007 7.50%
September 2007 7.50%
October 2007 7.50%
November 2007 9.58%
December 2007 9.58%
January 2008 9.58%
February 2008 10.83%
March 2008 11.67%
April 2008 12.50%
May 2008 13.33%
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June 2008 14.17%
July 2008 15.00%
August 2008 15.83%
September 2008 16.67%
October 2008 17.50%
November 2008 18.33%
December 2008 19.17%
January 2009 20.00%
February 2009 20.42%
March 2009 20.83%
April 2009 21.25%
May 2009 21.67%
June 2009 22.08%
July 2009 22.50%
August 2009 22.92%
September 2009 23.33%
October 2009 23.75%
November 2009 24.17%
December 2009 24.58%
January 2010 and thereafter 25.00%
"Level 1 Trigger Event" means any violation of the Level 1 Cumulative
Net Loss Test, the Level 1 Delinquency Test (unless amounts are deposited to the
Spread Account with respect to the Cash Collateral Deposit pursuant to Section
3.06) or the Level 1 Gross Default Test.
"Level 2 Cumulative Net Loss Test" means, for any Distribution Date
specified below, the Cumulative Net Loss Ratio for the related Collection Period
is greater than the percentage set forth opposite such Distribution Date:
Distribution Date occurring in: Percentage
------------------------------- ----------
February 2007 2.75%
March 2007 2.75%
April 2007 2.75%
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May 2007 4.00%
June 2007 4.00%
July 2007 4.00%
August 2007 5.00%
September 2007 5.00%
October 2007 5.00%
November 2007 6.50%
December 2007 6.50%
January 2008 6.50%
February 2008 8.00%
March 2008 8.50%
April 2008 9.00%
May 2008 9.50%
June 2008 10.00%
July 2008 10.50%
August 2008 11.00%
September 2008 11.50%
October 2008 12.00%
November 2008 12.50%
December 2008 13.00%
January 2009 13.50%
February 2009 14.25%
March 2009 14.50%
April 2009 14.75%
May 2009 15.00%
June 2009 15.25%
July 2009 15.50%
August 2009 15.75%
September 2009 16.00%
October 2009 16.25%
November 2009 16.50%
December 2009 16.75%
January 2010 and thereafter 17.00%
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"Level 2 Delinquency Test" means, for any Distribution Date, the
arithmetic average of the monthly Delinquency Ratios for the three immediately
preceding Collection Periods is greater than the percentage set forth opposite
such Distribution Date plus 0.25% for each November through April Distribution
Dates:
Distribution Date occurring in: Percentage
------------------------------- ----------
February 2007 through January 2008 6.00%
February 2008 through January 2010 6.50%
February 2010 and thereafter 7.00%
"Level 2 Gross Default Test" means, for any Distribution Date
specified below, the Gross Default Ratio for the related Collection Period is
greater than the percentage set forth opposite such Distribution Date:
Distribution Date occurring in: Percentage
------------------------------- ----------
February 2007 4.58%
March 2007 4.58%
April 2007 4.58%
May 2007 6.67%
June 2007 6.67%
July 2007 6.67%
August 2007 8.33%
September 2007 8.33%
October 2007 8.33%
November 2007 10.83%
December 2007 10.83%
January 2008 10.83%
February 2008 13.33%
March 2008 14.17%
April 2008 15.00%
May 2008 15.83%
June 2008 16.67%
July 2008 17.50%
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August 2008 18.33%
September 2008 19.17%
October 2008 20.00%
November 2008 20.83%
December 2008 21.67%
January 2009 22.50%
February 2009 23.75%
March 2009 24.17%
April 2009 24.58%
May 2009 25.00%
June 2009 25.42%
July 2009 25.83%
August 2009 26.25%
September 2009 26.67%
October 2009 27.08%
November 2009 27.50%
December 2009 27.92%
January 2010 and thereafter 28.33%
"Level 2 Trigger Event" means the occurrence of any of the following
(A) a Servicer Termination Event, (B) violation of the Level 2 Cumulative Net
Loss Test, (C) violation of the Level 2 Delinquency Test (D) violation of the
Level 2 Gross Default Test or (E) an Insurance Agreement Event of Default.
"Liquidation Proceeds" has the meaning set forth in Section 1.1 of the
Sale and Servicing Agreement.
"Non Controlling Party" means, at any time, the Issuer Secured Party
that is not the Controlling Party at such time.
"Outstanding Pool Balance" means the sum of the Pool Balance as of the
end of the related Collection Period.
"Overcollateralization Amount" means 11%; provided, however, if each
of the "Step-Down Conditions" (as defined in this agreement) is satisfied on a
Distribution Date set forth in the following table, the Overcollateralization
Amount shall be reduced to the amount set forth with respect to such
Distribution Date in the following table; provided, further, however, if any of
such "Step-Down Conditions" is not satisfied
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on any Distribution Date in the following table, the Overcollateralization
Amount for such Distribution Date and each following Distribution Date shall
equal the Overcollateralization Amount immediately prior to the date that any
such "Step-Down Condition" is not satisfied:
Distribution Date occurring in: Overcollateralization Amount
------------------------------- ----------------------------
July 2008 10.5%
January 2009 9.5%
July 2009 and thereafter 8.5%
"Premium Letter" has the meaning set forth in the Insurance Agreement.
"Requisite Amount" will equal the Spread Account Initial Deposit on
the Closing Date, and thereafter, on each Distribution Date, the Requisite
Amount shall be equal to 2.0% of the Initial Pool Balance, provided, however,
that (i) on each Distribution Date upon which a Level 1 Trigger Event has
occurred and is continuing, and upon each Distribution Date thereafter (unless
such Level 1 Trigger Event has been cured for three consecutive months) the
Requisite Amount shall be equal to the greater of (x) 5.0% of the Outstanding
Pool Balance or (y) 4.0% of the Initial Pool Balance; and (ii) on each
Distribution Date upon which a Level 2 Trigger Event has occurred and upon each
Distribution Date thereafter, the Requisite Amount shall be equal to 100% of the
outstanding principal balance of the Notes.
"Scheduled Payments" has the meaning set forth in the Note Policy.
"Security Interests" means the security interests and Liens in the
Spread Account Agreement Collateral granted pursuant to Section 2.01.
"Seller" means AFS SenSub Corp.
"Spread Account" means the account designated as such, established and
maintained pursuant to Article Three.
"Spread Account Agreement Collateral" has the meaning set forth in
Section 2.01.
"Spread Account Claim Amount" has the meaning set forth in Section 1.1
of the Sale and Servicing Agreement.
"Step-Down Conditions" means the following conditions shall have been
satisfied as of each Distribution Date in the following table: (a) no Insurance
Agreement Event of Default shall have occurred; (b) all amounts owed to the
Insurer under the Basic Documents have been paid in full; (c) immediately prior
to and after giving effect to any
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reduction in the Overcollateralization Amount, (i) the Spread Account is at the
Requisite Amount and (ii) the Pro Forma Note Balance is less than or equal to
the Required Pro Forma Note Balance; (d) the arithmetic average of the monthly
Delinquency Ratios for the three immediately preceding Collection Periods is
less than the percentage set forth opposite such Distribution Date; (e) the
Cumulative Net Loss Ratio for the related Collection Period is less than the
percentage set forth opposite such Distribution Date; (f) the Gross Default
Ratio for the related Collection Period is less than the percentage set forth
opposite such Distribution Date and (g) the arithmetic average of the Monthly
Extension Rates for the three immediately preceding consecutive calendar months
is less than 3.00%:
Distribution Date Three-Month Average Cumulative Net
occurring in: Delinquency Ratio Loss Ratio Gross Default Ratio
----------------- ------------------- -------------- -------------------
July 2008 3.75% 5.25% 9.00%
January 2009 3.75% 7.50% 12.00%
July 2009 4.25% 9.00% 14.00%
(and satisfaction of the Step-Down Conditions shall be satisfied as of each
Distribution Date in the following table if each of the such conditions are met
on such Distribution Date) .
"Trigger Event" means a Level 1 Trigger Event or a ▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇
▇▇▇▇▇.
"Trustee Termination Date" means the date which is the latest of the
date on which (i) the Trustee shall have received, as Trustee for the holders of
the Notes, payment and performance in full of all Trustee Issuer Secured
Obligations and (ii) all payments in respect of the Notes shall have been made
and the Indenture shall have been satisfied and discharged pursuant to the terms
of Article IV of the Indenture.
"Uniform Commercial Code" or " UCC" means the Uniform Commercial Code
in effect in the relevant jurisdiction, as the same may be amended from time to
time.
SECTION 1.02. OTHER DEFINITIONAL PROVISIONS.
(a) Capitalized terms used but not otherwise defined herein shall
have the meanings set forth in the Sale and Servicing Agreement or the
Indenture, as the case may be.
(b) The terms " hereof," " herein" or " hereunder," unless
otherwise modified by more specific reference, shall refer to this
Agreement in its entirety. Unless otherwise indicated in context, the
terms "Article," "Section," "Appendix," "Exhibit" or "Annex" shall
refer to an Article or Section of, or Appendix, Exhibit or Annex to,
this Agreement.
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The definition of a term shall include the singular, the plural, the
past, the present, the future, the active and the passive forms of
such term.
ARTICLE II
THE SPREAD ACCOUNT AGREEMENT COLLATERAL
SECTION 2.01. GRANT OF SECURITY INTEREST BY THE ISSUER. In order to
secure the performance of Issuer Secured Obligations, to the extent provided
herein, the Issuer hereby pledges, assigns, grants, transfers and conveys to the
Collateral Agent, on behalf of and for the benefit of the Issuer Secured
Parties, a lien on and security interest in (which lien and security interest is
intended to be prior to all other Liens), all of its right, title and interest
in and to the following (all being collectively referred to herein as the "
Spread Account Agreement Collateral" and constituting Spread Account Agreement
Collateral hereunder):
(a) the Spread Account established pursuant to Section 3.01, and
each other account owned by the Issuer and maintained by the
Collateral Agent (including, without limitation, the Spread Account
Initial Deposit related thereto and all additional monies, checks,
securities, investments and other documents from time to time held in
or evidencing any such accounts);
(b) all of the Issuer's right, title and interest in and to any
(i) financial assets credited to the Spread Account and (ii) any other
investments made with proceeds of the property described in clause (a)
above, or made with amounts on deposit in the Spread Account; and
(c) all distributions, revenues, products, substitutions,
benefits, profits and proceeds, in whatever form, of any of the
foregoing whether now owned or hereafter acquired.
SECTION 2.02. PRIORITY. The Issuer intends the security interests in
favor of the Issuer Secured Parties to be prior to all other Liens in respect of
the Spread Account Agreement Collateral, and the Issuer shall take all actions
necessary to obtain and maintain, in favor of the Collateral Agent, for the
benefit of the Issuer Secured Parties, a first lien on and a first priority,
perfected security interest in the Spread Account Agreement Collateral
including, without limitation, the filing of a UCC-1 financing statement
relating to the Spread Account Agreement Collateral. Subject to the provisions
hereof specifying the rights and powers of the Collateral Agent at the direction
of the Controlling Party from time to time to control certain specified matters
relating to the Spread Account Agreement Collateral, each Issuer Secured Party
shall have all of the rights, remedies and recourse with respect to the Spread
Account Agreement Collateral afforded a Secured Party under the Uniform
Commercial Code, and all other applicable law in addition to, and not in
limitation of, the other rights, remedies and recourse granted to such Issuer
Secured Parties by this Agreement or any other law relating to the creation
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and perfection of liens on, and security interests in, the Spread Account
Agreement Collateral.
SECTION 2.03. ISSUER REMAINS LIABLE. The Security Interests are
granted as security only and shall not (i) transfer or in any way affect or
modify, or relieve either the Issuer from, any obligation to perform or satisfy,
any term, covenant, condition or agreement to be performed or satisfied by the
Issuer under or in connection with this Agreement, the Insurance Agreement or
any other Basic Documents to which it is a party or (ii) impose any obligation
on any of the Issuer Secured Parties or the Collateral Agent to perform or
observe any such term, covenant, condition or agreement or impose any liability
on any of the Issuer Secured Parties or the Collateral Agent for any act or
omission on its part relative thereto or for any breach of any representation or
warranty on its part contained therein or made in connection therewith, except,
in each case, to the extent provided herein and in the other Basic Documents.
SECTION 2.04. DELIVERY AND MAINTENANCE OF SPREAD ACCOUNT AGREEMENT
COLLATERAL.
(a) The Collateral Agent agrees to maintain the Spread Account
Agreement Collateral received by it (or evidence thereof, in the case
of book-entry securities in the name of the Collateral Agent) and all
records and documents relating thereto at the office of the Collateral
Agent specified in Section 8.06 or such other address as may be
approved by the Controlling Party. The Collateral Agent shall keep all
Spread Account Agreement Collateral and related documentation in its
possession separate and apart from all other property that it is
holding in its possession and from its own general assets and shall
maintain accurate records pertaining to the Eligible Investments and
Spread Account included in the Spread Account Agreement Collateral in
such a manner as shall enable the Collateral Agent and the Issuer
Secured Parties to verify the accuracy of such recordkeeping. The
Collateral Agent's books and records shall at all times show that the
Spread Account Agreement Collateral is held by the Collateral Agent as
agent of the Issuer Secured Parties and is not the property of the
Collateral Agent. The Collateral Agent will promptly report to each
Issuer Secured Party and the Issuer any failure on its part to hold
the Spread Account Agreement Collateral as provided in this Section
2.04(a) and will promptly take appropriate action to remedy any such
failure.
(b) The Collateral Agent shall permit each of the Issuer Secured
Parties, or their respective duly authorized representatives,
attorneys, auditors or designees, to inspect the Spread Account
Agreement Collateral in the possession of or otherwise under the
control of the Collateral Agent pursuant hereto at such reasonable
times during normal business hours as any such Issuer Secured Party
may reasonably request upon not less than two Business Day's prior
written notice. The costs and
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expenses associated with any such inspection will be paid by the party
making such inspection.
(c) All Spread Account Agreement Collateral shall be transferred
to the Collateral Agent on behalf of the Issuer Secured Party in a
manner consistent with the definition of " Delivery" set forth in the
Sale and Servicing Agreement.
(d) Notwithstanding anything to the contrary herein, the
Collateral Agent: (i) is and will be acting on behalf of the Issuer
Secured Parties as a securities intermediary under Article Eight of
the UCC and acknowledges that it holds the Spread Account Agreement
Collateral for the benefit of the Issuer Secured Parties for purposes
of Section 9-313 of the UCC (ii) shall establish and maintain the
Spread Account for the benefit of the Issuer Secured Parties as a
holder of a security interest in the Spread Account Agreement
Collateral and the Spread Account; (iii) shall treat all of the assets
in the Spread Account (other than cash) as financial assets under
Article Eight of the UCC; (iv) shall not hold, or exercise control
(within the meaning of Article Eight or Nine of the UCC) over, the
Spread Account Agreement Collateral and/or the Spread Account for the
benefit of any person or entity other than the Issuer Secured Parties;
(v) has received notice of the Issuer Secured Parties' interest in the
assets contained and/or to be contained in the Spread Account; and
(vi) shall take instructions only from the Issuer Secured Party
constituting the Controlling Party hereunder (without any consent of
and notwithstanding any alternate direction of the Issuer) with
respect to the Spread Account and/or the Spread Account Agreement
Collateral, including, without limitation, all instructions with
respect to the acquisition, transfer and disposition of assets in the
Spread Account and the proceeds thereof. In accordance with the choice
of law governing this Agreement set forth in Section 8.14 herein, for
purposes of Article Eight of the UCC the jurisdiction of the
Collateral Agent is deemed to be New York.
SECTION 2.05. TERMINATION AND RELEASE OF RIGHTS.
(a) On the Insurer Termination Date, the rights, remedies,
powers, duties, authority and obligations conferred upon the Insurer
pursuant to this Agreement in respect of the Spread Account Agreement
Collateral shall terminate and be of no further force and effect and
all rights, remedies, powers, duties, authority and obligations of the
Insurer with respect to such Spread Account Agreement Collateral shall
be automatically released; provided that any indemnity provided to or
by the Insurer herein shall survive such Insurer Termination Date. If
the Insurer is acting as Controlling Party on the related Insurer
Termination Date, the Insurer agrees, at the expense of the Issuer, to
execute and deliver such instruments as the successor Controlling
Party may reasonably request to effectuate such release, and any such
instruments so executed and
14
delivered shall be fully binding on the Insurer and any Person
claiming by, through or under the Insurer.
(b) On the Trustee Termination Date, the rights, remedies,
powers, duties, authority and obligations, if any, conferred upon the
Trustee pursuant to this Agreement in respect of the Spread Account
Agreement Collateral shall terminate and be of no further force and
effect and all such rights, remedies, powers, duties, authority and
obligations of the Trustee with respect to such Spread Account
Agreement Collateral shall be automatically released; provided that
any indemnity provided to the Trustee herein shall survive such
Trustee Termination Date. If the Trustee is acting as Controlling
Party on the related Trustee Termination Date, the Trustee agrees, at
the expense of the Issuer, to execute and deliver such instruments as
the Issuer may reasonably request to effectuate such release, and any
such instruments so executed and delivered shall be fully binding on
the Trustee.
(c) On the Final Termination Date, the rights, remedies, powers,
duties, authority and obligations conferred upon the Collateral Agent
and each Issuer Secured Party pursuant to this Agreement shall
terminate and be of no further force and effect and all rights,
remedies, powers, duties, authority and obligations of the Collateral
Agent and each Issuer Secured Party with respect to the Spread Account
Agreement Collateral shall be automatically released. On the Final
Termination Date, the Collateral Agent agrees, and each Issuer Secured
Party agrees, at the expense of the Issuer, to execute such
instruments of release, in recordable form if necessary, in favor of
the Issuer as the Issuer may reasonably request, to deliver any Spread
Account Agreement Collateral in its possession to the Issuer, and to
otherwise release the lien of this Agreement and release and deliver
to the Issuer the Spread Account Agreement Collateral.
SECTION 2.06. NON-RECOURSE OBLIGATIONS OF ISSUER. Notwithstanding
anything herein or in the other Basic Documents to the contrary, the parties
hereto agree that the obligations of the Issuer hereunder shall be recourse only
to the extent of amounts released to the Issuer pursuant to Section 3.03(b)(ii)
and retained by the Issuer in accordance with the next sentence. The Issuer
agrees that it shall not declare or make any payment to the Seller or
AmeriCredit except in accordance with the Basic Documents. Nothing contained
herein shall be deemed to limit the rights of the Noteholders under any other
Basic Document.
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ARTICLE III
SPREAD ACCOUNT
SECTION 3.01. ESTABLISHMENT OF SPREAD ACCOUNT; INITIAL DEPOSIT INTO
SPREAD ACCOUNT; MAINTENANCE OF SPREAD ACCOUNT.
(a) On or prior to the Closing Date, the Collateral Agent shall
establish, at its office or at another depository institution or trust
company an Eligible Deposit Account, designated, " Spread
Account--▇▇▇▇▇ Fargo Bank, National Association, as Collateral Agent
for XL Capital Assurance Inc. and ▇▇▇▇▇ Fargo Bank, National
Association, as Trustee and Trust Collateral Agent Re: AmeriCredit
Automobile Receivables Trust 2007-A-X, Class A Asset-Backed Notes
Series 2007-A-X" (the "Spread Account"). The Spread Account shall be
maintained by the Collateral Agent at all times separate and apart
from any other account of AmeriCredit, the Seller, the Servicer or the
Issuer. The Spread Account shall be maintained at the same depository
institution (which depository institution may be changed from time to
time in accordance with this Agreement). If the Spread Account ceases
to be an Eligible Deposit Account, the Collateral Agent shall notify
the Controlling Party of such fact and shall establish within five
Business Days of such determination, in accordance with Section
3.04(a), a successor Spread Account thereto, which shall be an
Eligible Deposit Account, at another depository institution acceptable
to the Controlling Party.
(b) No withdrawals may be made of funds in the Spread Account
except as provided in Section 3.03. Except as specifically provided in
this Agreement, funds in the Spread Account shall not be commingled
with any other moneys. All moneys deposited from time to time in the
Spread Account and all investments made with such moneys shall be held
by the Collateral Agent as part of the Spread Account Agreement
Collateral.
(c) On the Closing Date, Issuer shall provide or cause to be
provided to the Collateral Agent for deposit into the Spread Account
an amount equal to the Spread Account Initial Deposit.
(d) On each Distribution Date, after giving effect to all
payments to be made on the related Distribution Date, the Collateral
Agent shall cause to be maintained in the Spread Account an amount
equal to the Requisite Amount in accordance with Article V of the Sale
and Servicing Agreement. Any amounts deposited with respect to the
Cash Collateral Deposit shall not be included for the purposes of
determining whether the amount maintained in the Spread Account equals
the Requisite Amount
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SECTION 3.02. INVESTMENTS.
(a) Funds which may at any time be held in the Spread Account
shall be invested and reinvested by the Collateral Agent, at the
written direction (which may include, subject to the provisions
hereof, general standing instructions) of the Issuer (unless a Default
shall have occurred and be continuing, in which case at the written
direction of the Controlling Party if it so elects) or its designee
received by the Collateral Agent by 1:00 p.m. New York City time, on
the Business Day prior to the date on which such investment shall be
made, in one or more Eligible Investments in the manner specified in
Section 3.02(b) and (c). If no written direction with respect to any
portion of such Spread Account is received by the Collateral Agent,
the Spread Account Agreement Collateral Agent shall invest such funds
overnight in money market mutual funds described in paragraph (d) of
the definition of the term "Eligible Investments," provided that the
Collateral Agent shall not be liable for any loss or absence of income
resulting from such investments.
(b) Each investment made pursuant to this Section on any date
shall mature not later than the Business Day immediately preceding the
Distribution Date next succeeding the day such investment is made or
payable on demand, provided that any investment of funds in the Spread
Account maintained with the Collateral Agent in any investment as to
which the Collateral Agent is the obligor, if otherwise qualified as
an Eligible Investment may mature on the Distribution Date next
succeeding the date of such investment.
(c) Subject to the other provisions hereof, the Collateral Agent
shall have sole control over each such investment and the income
thereon, and any certificate or other instrument evidencing any such
investment, if any, shall be delivered directly to the Collateral
Agent or its agent, together with each document of transfer, if any,
necessary to transfer title to such investment to the Collateral Agent
in a manner which complies with Section 2.04 and the requirements of
the definition of "Eligible Investments."
(d) If amounts on deposit in the Spread Account are at any time
invested in an Eligible Investment payable on demand, the Collateral
Agent shall (i) consistent with any notice required to be given
thereunder, demand that payment thereon be made on the last day such
Eligible Investment is permitted to mature under the provisions hereof
and (ii) demand payment of all amounts due thereunder promptly upon
receipt of written notice from the Controlling Party to the effect
that such investment does not constitute an Eligible Investment.
(e) All moneys on deposit in the Spread Account, together with
any deposits or securities in which such moneys may be invested or
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reinvested, and any gains from such investments, shall constitute
Spread Account Agreement Collateral hereunder subject to the Security
Interests of the Issuer Secured Parties.
(f) Subject to Section 4.03, the Collateral Agent shall not be
liable by reason of any insufficiency in amounts on deposit in the
Spread Account resulting from any loss on any Eligible Investment
included therein except for losses attributable to the Collateral
Agent's failure to make payments on Eligible Investments as to which
the Collateral Agent, in its commercial capacity, is obligated. All
income or loss on investments of funds in the Spread Account shall be
reported by AmeriCredit as taxable income or loss.
SECTION 3.03. PAYMENTS; PRIORITY OF PAYMENTS.
(a) On or before the second Business Day prior to each
Distribution Date, the Collateral Agent will make the following
determinations on the basis of information (including, without
limitation, the amount of any Spread Account Claim Amount and the
amount of any Accelerated Payment Amount Shortfall) received pursuant
to Article IV of the Sale and Servicing Agreement from the Servicer;
provided, however, that if the Collateral Agent receives written
notice from the Insurer, the Trustee, the Issuer or the Servicer of
the occurrence of a Trigger Event, such notice shall be determinative
for the purposes of determining the Requisite Amount:
(i) determine the amounts to be on deposit in the Spread
Account on such Distribution Date which will be available to
satisfy any Spread Account Claim Amount;
(ii) determine (A) the amounts, if any, to be paid from the
Spread Account with respect to the Spread Account Claim Amount
and (B) whether, following payment from the Spread Account to the
Trust Collateral Agent for deposit into the Collection Account, a
Spread Account Claim Amount will continue to exist;
(iii) [Reserved];
(iv) determine the amounts to be on deposit in the Spread
Account on that Distribution Date which will be available to
satisfy any Accelerated Payment Amount Shortfall; and
(v) determine (A) the amounts, if any, to be paid from the
Spread Account with respect to the Accelerated Payment Amount
Shortfall and (B) whether, following payment from the Spread
Account to the Trust Collateral Agent for deposit into the
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Collection Account, an Accelerated Payment Amount Shortfall will
continue to exist.
On such Distribution Date, the Collateral Agent shall deliver a
certificate to the Trust Collateral Agent and the Insurer with respect to any
Deficiency Notice and any Accelerated Payment Shortfall Notice, stating the
amount, if any, to be distributed to the Trust Collateral Agent on that
Distribution Date in respect of such Accelerated Payment Shortfall Amount and in
respect of such Spread Account Claim Amount.
(b) On each Distribution Date, the Collateral Agent shall make
the following payments from the Spread Account (to the extent of funds
available in the Spread Account) in the following order of priority:
(i) if the Trust Collateral Agent has delivered a Deficiency
Notice and if there exists a Spread Account Claim Amount, to the
Trust Collateral Agent for deposit in the Collection Account the
amount of such Spread Account Claim Amount; and
(ii) any funds in the Spread Account (net of any amounts
deposited with respect to the Cash Collateral Deposit) in excess
of the Requisite Amount, after making the withdrawals therefrom
required by clause (i) of this Section 3.03(b) (to the extent of
funds available in excess of the Requisite Amount) and any funds
remaining in the Spread Account as of the Distribution Date
immediately following the Final Termination Date will be applied
by the Collateral Agent in the following order of priority:
(A) if the Trust Collateral Agent has delivered an
Accelerated Payment Shortfall Notice and if there exists an
Accelerated Payment Amount Shortfall, to the Trust
Collateral Agent for deposit in the Note Distribution
Account the amount of such Accelerated Payment Amount
Shortfall;
(B) to the payment of any expenses payable pursuant to
Section 4.5 of the Sale and Servicing Agreement to the
extent not paid by the Servicer;
(C) to the Trust Collateral Agent for payment to any
replacement servicer any accrued and unpaid replacement
servicer fees, transition costs or additional compensation
to the extent not paid by AmeriCredit or pursuant to the
Sale and Servicing Agreement;
(D) to the Trust Collateral Agent for payment to the
Insurer, any amounts due and owing to the Insurer that were
not paid under clause (x) of Section 5.7(a) of the Sale and
Servicing Agreement;
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(E) to the Trust Collateral Agent for payment to the
Swap Counterparty, any amounts due and owing to the Swap
Counterparty that were not paid under clause (ix) of Section
5.7(a) of the Sale and Servicing Agreement;
(F) to the Backup Servicer, any indemnification amounts
payable by the Servicer to the Backup Servicer to the extent
not paid by the Servicer; and
(G) to the holder(s) of the Certificates, any remaining
funds in the Spread Account in excess of the Requisite
Amount.
SECTION 3.04. GENERAL PROVISIONS REGARDING SPREAD ACCOUNT.
(a) Promptly upon the establishment (initially or upon any
relocation) of the Spread Account hereunder, the Collateral Agent
shall advise the Issuer and each Issuer Secured Party in writing of
the name and address of the depository institution or trust company
where the Spread Account has been established (if not at ▇▇▇▇▇ Fargo
Bank, National Association or any successor Collateral Agent in its
commercial banking capacity), the name of the officer of the
depository institution who is responsible for overseeing the Spread
Account, the account number and the individuals whose names appear on
the signature cards for the Spread Account. The Issuer shall cause
each such depository institution or trust company to execute a written
agreement, in form and substance reasonably satisfactory to the
Controlling Party, waiving, and the Collateral Agent by its execution
of this Agreement hereby waives (except to the extent expressly
provided herein), in each case to the extent permitted under
applicable law, (i) any banker's or other statutory or similar Lien,
and (ii) any right of set-off or other similar right under applicable
law with respect to the Spread Account and agreeing, and the
Collateral Agent by its execution of this Agreement hereby agrees to
notify the Issuer and each Issuer Secured Party of any charge or claim
against or with respect to such Spread Account. The Collateral Agent
shall give the Issuer and each Issuer Secured Party at least ten
Business Days' prior written notice of any change in the location of
the Spread Account or in any related account information. Anything
herein to the contrary notwithstanding, unless otherwise consented to
by the Controlling Party in writing, the Collateral Agent shall have
no right to change the location of the Spread Account
(b) Upon the written request of the Controlling Party or the
Issuer, the Collateral Agent shall cause, at the expense of the
Issuer, the depository institution at which the Spread Account is
located to forward to the requesting party copies of all monthly
account statements for the Spread Account.
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(c) No passbook, certificate of deposit or other similar
instrument evidencing the Spread Account shall be issued, and all
contracts, receipts and other papers, if any, governing or evidencing
the Spread Account shall be held by the Collateral Agent.
SECTION 3.05. REPORTS BY THE COLLATERAL AGENT. The Collateral Agent
shall report to the Issuer, the Insurer, the Trustee (unless the Trustee is the
same party as the Collateral Agent), the Trust Collateral Agent and the Servicer
on a monthly basis no later than each Distribution Date with respect to the
amount on deposit in the Spread Account and the identity of the investments
included therein as of the last day of the related Collection Period, and shall
provide accountings of deposits into and withdrawals from the Spread Account,
and of the investments made therein, upon the request of the Issuer, the Insurer
or the Servicer.
SECTION 3.06. CASH COLLATERALIZED RECEIVABLES.
(a) On any date after the Outstanding Pool Balance has declined
to 33% of the Initial Pool Balance, if (i) the Delinquency Ratio
violates the ▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, (▇▇) the amount on deposit in
the Spread Account equals or exceeds the Requisite Amount and (iii)
the Pro Forma Note Balance equaled the Required Pro Forma Note Balance
on the immediately preceding Distribution Date, then the Servicer
shall have the option of making a deposit into the Spread Account to
prevent the occurrence of a Level 1 Trigger. If the Servicer elects to
exercise such option, then on each Distribution Date the Servicer
shall deposit into the Spread Account the amount necessary to maintain
the Cash Collateral Deposit until such time as the Delinquency Ratio
(without taking into account any reduction for Cash Collateralized
Receivables) is at a level that does not violate the Level 1
Delinquency Test or Level 2 Delinquency Test. As of any date of
determination, the "Cash Collateral Deposit" shall equal to the
greater of (x) the aggregate Principal Balance of 100% of the
Receivables that are ninety (90) or more days past due or (y) the
aggregate Principal Balance of the minimum amount of Delinquent
Receivables necessary to reduce the Delinquency Ratio to a level that
does not violate the ▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇.
(▇) On each Distribution Date, upon which (i) the Delinquency
Ratio (without taking into account any reduction for Cash
Collateralized Receivables) is at a level that does not violate the
Level 1 Delinquency Test or ▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, (▇▇) no Trigger
Event is in effect and (iii) the amount on deposit in the Spread
Account (net of the Cash Collateral Deposit) is equal to or exceeds
the Requisite Amount, then the Collateral Agent shall distribute the
Cash Collateral Deposit in accordance with the priorities set forth in
Section 3.03(b)(ii).
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ARTICLE IV
THE COLLATERAL AGENT
SECTION 4.01. APPOINTMENT AND POWERS. Subject to the terms and
conditions hereof, each of the Issuer Secured Parties hereby appoints ▇▇▇▇▇
Fargo Bank, National Association as the Collateral Agent with respect to the
Spread Account Agreement Collateral, and ▇▇▇▇▇ Fargo Bank, National Association
hereby accepts such appointment and agrees to act as Collateral Agent with
respect to the Spread Account Agreement Collateral, for the Issuer Secured
Parties, to maintain custody and possession of such Spread Account Agreement
Collateral (except as otherwise provided hereunder) and to perform the other
duties of the Collateral Agent in accordance with the express provisions of this
Agreement. Each Issuer Secured Party hereby authorizes the Collateral Agent to
take such action on its behalf, and to exercise such rights, remedies, powers
and privileges hereunder, as the Controlling Party may direct and as are
specifically authorized to be exercised by the Collateral Agent by the terms
hereof, together with such actions, rights, remedies, powers and privileges as
are reasonably incidental thereto. The Collateral Agent shall act (and shall be
completely protected in so acting) upon and in compliance with the written
instructions of the Controlling Party delivered pursuant to this Agreement
promptly following receipt of such written instructions; provided that the
Collateral Agent shall not act in accordance with any instructions (i) which are
not authorized by, or in violation of the provisions of, this Agreement, (ii)
which are in violation of any applicable law, rule or regulation or (iii) for
which the Collateral Agent has not received reasonable indemnity. Receipt of
such instructions shall not be a condition to the exercise by the Collateral
Agent of its express duties hereunder, except where this Agreement provides that
the Collateral Agent is permitted to act only following and in accordance with
such instructions.
SECTION 4.02. PERFORMANCE OF DUTIES. The Collateral Agent shall have
no duties or responsibilities except those expressly set forth in this Agreement
and the other Basic Documents to which the Collateral Agent is a party or as
directed by the Controlling Party in accordance with this Agreement.
SECTION 4.03. LIMITATION ON LIABILITY. Neither the Collateral Agent
nor any of its directors, officers, employees or agents shall be liable for any
action taken or omitted to be taken by it or them hereunder, or in connection
herewith, except that the Collateral Agent shall be liable for its gross
negligence, bad faith or willful misconduct; nor shall the Collateral Agent be
responsible for the validity, effectiveness, value, sufficiency or
enforceability against the Issuer of this Agreement or any of the Spread Account
Agreement Collateral (or any part thereof). Notwithstanding any term or
provision of this Agreement, the Collateral Agent shall incur no liability to
the Issuer or the Issuer Secured Parties for any action taken or omitted by the
Collateral Agent in connection with the Spread Account Agreement Collateral,
except for the gross negligence or willful misconduct on the part of the
Collateral Agent, and, further, shall incur no liability to the Issuer Secured
Parties except for gross negligence or willful misconduct in carrying out its
duties to the Issuer Secured Parties. Subject to Section 4.04, the Collateral
Agent shall be completely protected and shall incur no liability to any
22
such party in relying upon the accuracy, acting in reliance upon the contents,
and assuming the genuineness of any notice, demand, certificate, signature,
instrument or other document reasonably believed by the Collateral Agent to be
genuine and to have been duly executed by the appropriate signatory, and (absent
actual knowledge to the contrary) the Collateral Agent shall not be required to
make any independent investigation with respect thereto. The Collateral Agent
shall at all times be free independently to establish to its reasonable
satisfaction, but shall have no duty to independently verify, the existence or
nonexistence of facts that are a condition to the exercise or enforcement of any
right or remedy hereunder or under any of the Basic Documents. The Collateral
Agent may consult with counsel selected by it with due care, and shall not be
liable for any action taken or omitted to be taken by it hereunder in good faith
and in accordance with the written advice of such counsel. The Collateral Agent
shall not be under any obligation to exercise any of the remedial rights or
powers vested in it by this Agreement or to follow any direction from the
Controlling Party unless it shall have received reasonable security or indemnity
satisfactory to the Collateral Agent against the costs, expenses and liabilities
which might be incurred by it.
SECTION 4.04. RELIANCE UPON DOCUMENTS. In the absence of bad faith or
gross negligence on its part, the Collateral Agent shall be entitled to
conclusively rely on any communication, instrument, paper or other document
reasonably believed by it to be genuine and correct and to have been signed or
sent by the proper Person or Persons and shall have no liability in acting, or
omitting to act, where such action or omission to act is in reasonable reliance
upon any statement or opinion contained in any such document or instrument.
SECTION 4.05. SUCCESSOR COLLATERAL AGENT.
(a) Any Person into which the Collateral Agent may be converted
or merged, or with which it may be consolidated, or to which it may
sell or transfer its trust business and assets as a whole, or
substantially as a whole, or any Person resulting from any such
conversion, merger, consolidation, sale or transfer to which the
Collateral Agent is a party, shall (provided it is otherwise qualified
to serve as the Collateral Agent hereunder) be and become a successor
Collateral Agent hereunder and be vested with all of the title to and
interest in the Spread Account Agreement Collateral and all of the
trusts, powers, discretions, immunities, privileges and other matters
as was its predecessor without the execution or filing of any
instrument or any further act, deed or conveyance on the part of any
of the parties hereto, anything herein to the contrary
notwithstanding, except to the extent, if any, that any such action is
necessary to perfect, or continue the perfection of, the security
interest of the Issuer Secured Parties in the Spread Account Agreement
Collateral.
(b) The Collateral Agent and any successor Collateral Agent may
resign only (i) upon a determination that by reason of a change in
legal requirements the performance of its duties under this Agreement
would cause it to be in violation of such legal requirements in a
manner
23
which would result in a material adverse effect on the Collateral
Agent as evidenced by an Opinion of Counsel delivered to the Insurer,
and the Controlling Party does not elect to waive the Collateral
Agent's obligation to perform those duties which render it legally
unable to act or elect to delegate those duties to another Person, or
(ii)with the prior written consent of the Controlling Party. The
Collateral Agent shall give not less than 60 days' prior written
notice of any such permitted resignation by registered or certified
mail to the other Issuer Secured Party and the Issuer; provided, that
such resignation shall take effect only upon the date which is the
latest of (A) the effective date of the appointment of a successor
Collateral Agent acceptable to the Insurer (provided that an Insurer
Default has not occurred and is continuing) and the acceptance in
writing by such successor Collateral Agent of such appointment and of
its obligation to perform its duties hereunder in accordance with the
provisions hereof, (B) delivery of the Collateral to such successor to
be held in accordance with the procedures specified in Article Two,
and (C) receipt by the Controlling Party of an Opinion of Counsel to
the effect described in Section 5.05. Notwithstanding the preceding
sentence, if by the contemplated date of resignation specified in the
written notice of resignation delivered as described above no
successor Collateral Agent or temporary successor Collateral Agent has
been appointed Collateral Agent or becomes the Collateral Agent
pursuant to Section 4.05(d), the resigning Collateral Agent may
petition a court of competent jurisdiction in New York, New York for
the appointment of a successor acceptable to the Insurer (provided
that an Insurer Default has not occurred and is continuing).
Notwithstanding anything herein to the contrary, if the Trustee, the
Trust Collateral Agent and Collateral Agent are the same party and the
Trustee or the Trust Collateral Agent resigns under the Indenture, the
Collateral Agent may resign in accordance with the procedures for
resignation of the Trustee and the Trust Collateral Agent under the
Indenture.
(c) The Collateral Agent may be removed by the Controlling Party
at any time, with or without cause, by an instrument or concurrent
instruments in writing delivered to the Collateral Agent, the other
Issuer Secured Party and the Issuer. A temporary successor may be
removed at any time to allow a successor Collateral Agent to be
appointed pursuant to Section 4.05(d). Any removal pursuant to the
provisions of this subsection (c) shall take effect only upon the date
which is the latest of (i) the effective date of the appointment of a
successor Collateral Agent acceptable to the Insurer (provided that an
Insurer Default has not occurred and is continuing) and the acceptance
in writing by such successor Collateral Agent of such appointment and
of its obligation to perform its duties hereunder in accordance with
the provisions hereof, (ii) delivery of the Spread Account Agreement
Collateral to such successor to be held in accordance with the
procedures specified in
24
Article Two and (iii) receipt by the Controlling Party of an Opinion
of Counsel to the effect described in Section 5.05.
(d) The Controlling Party shall have the sole right to appoint
each successor Collateral Agent. Every temporary or permanent
successor Collateral Agent appointed hereunder shall execute,
acknowledge and deliver to its predecessor and to each Issuer Secured
Party and the Issuer an instrument in writing accepting such
appointment hereunder and the relevant predecessor shall execute,
acknowledge and deliver such other documents and instruments as will
effectuate the delivery of all Spread Account Agreement Collateral to
the successor Collateral Agent to be held in accordance with the
procedures specified in Article Two, whereupon such successor, without
any further act, deed or conveyance, shall become fully vested with
all the estates, properties, rights, powers, duties and obligations of
its predecessor. Such predecessor shall, nevertheless, on the written
request of either Issuer Secured Party or the Issuer, execute and
deliver an instrument transferring to such successor all the estates,
properties, rights and powers of such predecessor hereunder. In the
event that any instrument in writing from the Issuer or a Issuer
Secured Party is reasonably required by a successor Collateral Agent
to more fully and certainly vest in such successor the estates,
properties, rights, powers, duties and obligations vested or intended
to be vested hereunder in the Collateral Agent, any and all such
written instruments shall, at the request of the temporary or
permanent successor Collateral Agent, be forthwith executed,
acknowledged and delivered by the Issuer. The designation of any
successor Collateral Agent and the instrument or instruments removing
any Collateral Agent and appointing a successor hereunder, together
with all other instruments provided for herein, shall be maintained
with the records relating to the Spread Account Agreement Collateral
and, to the extent required by applicable law, filed or recorded by
the successor Collateral Agent in each place where such filing or
recording is necessary to effect the transfer of the Spread Account
Agreement Collateral to the successor Collateral Agent or to protect
or continue the perfection of the security interests granted
hereunder.
SECTION 4.06. INDEMNIFICATION. The Servicer shall indemnify the
Collateral Agent, its directors, officers, employees and agents for, and hold
the Collateral Agent, its directors, officers, employees and agents harmless
against, any loss, liability or expense (including the fees and expenses of
counsel and the costs and expenses of defending against any claim of liability)
arising out of or in connection with the Collateral Agent's acting as Collateral
Agent hereunder, except such loss, liability or expense as shall result from the
gross negligence, bad faith or willful misconduct of the Collateral Agent. The
obligation of the Servicer under this Section 4.06 shall survive the termination
of this Agreement and the resignation or removal of the Collateral Agent or the
Servicer.
25
SECTION 4.07. COMPENSATION AND REIMBURSEMENT. The Servicer agrees for
the benefit of the Issuer Secured Parties to pay to the Collateral Agent, the
Collateral Agent Fee for all services rendered by it hereunder (which
compensation shall not be limited by any provision of law in regard to the
compensation of a collateral trustee) and to reimburse the Collateral Agent for
any reasonable and out of pocket expenses (including reasonable legal fees and
expenses but excluding any expenses resulting from the gross negligence, bad
faith, or willful misconduct of the Collateral Agent) incurred in connection
with the duties contemplated herein.
SECTION 4.08. REPRESENTATIONS AND WARRANTIES OF THE COLLATERAL AGENT.
The Collateral Agent represents and warrants to the Issuer and to each Issuer
Secured Party as follows:
(a) DUE ORGANIZATION. The Collateral Agent is a national banking
association, duly organized, validly existing and in good standing
under the laws of the United States and is duly authorized and
licensed under applicable law to conduct its business as presently
conducted.
(b) CORPORATE POWER. The Collateral Agent has all requisite
right, power and authority to execute and deliver this Agreement and
to perform all of its duties as Collateral Agent hereunder.
(c) DUE AUTHORIZATION. The execution and delivery by the
Collateral Agent of this Agreement and the other Basic Documents to
which it is a party, and the performance by the Collateral Agent of
its duties hereunder and thereunder, have been duly authorized by all
necessary corporate proceedings and no further approvals or filings,
including any governmental approvals, are required for the valid
execution and delivery by the Collateral Agent, or the performance by
the Collateral Agent, of this Agreement and such other Basic
Documents.
(d) VALID AND BINDING AGREEMENT. The Collateral Agent has duly
executed and delivered this Agreement and each other Basic Document to
which it is a party, and each of this Agreement and each such other
Basic Document constitutes the legal, valid and binding obligation of
the Collateral Agent, enforceable against the Collateral Agent in
accordance with its terms, except as (i) such enforceability may be
limited by bankruptcy, insolvency, reorganization and similar laws
relating to or affecting the enforcement of creditors' rights
generally and (ii) the availability of equitable remedies may be
limited by equitable principles of general applicability.
SECTION 4.09. WAIVER OF SETOFFS. The Collateral Agent hereby expressly
waives any and all rights of set off that the Collateral Agent may otherwise at
any time have under applicable law with respect to the Spread Account and agrees
that amounts in the Spread Account shall at all times be held and applied solely
in accordance with the provisions hereof.
26
SECTION 4.10. CONTROL BY THE CONTROLLING PARTY. The Collateral Agent
shall comply with notices and instructions given by the Issuer only if
accompanied by the written consent of the Controlling Party, except that if any
Default shall have occurred and be continuing, the Collateral Agent shall act
upon and comply with notices and instructions given by the Controlling Party
alone in the place and stead of the Issuer.
ARTICLE V
COVENANTS OF THE ISSUER
SECTION 5.01. PRESERVATION OF SPREAD ACCOUNT AGREEMENT COLLATERAL.
Subject to the rights, powers and authorities granted to the Collateral Agent
and the Controlling Party in this Agreement, the Issuer shall take such action
as is necessary and proper with respect to the Spread Account Agreement
Collateral in order to preserve and maintain such Spread Account Agreement
Collateral and to cause (subject to the rights of the Issuer Secured Parties)
the Collateral Agent to perform its obligations with respect to such Spread
Account Agreement Collateral as provided herein including, without limitation,
filing UCC-1's on the Spread Account and investments therein. The Issuer will
do, execute, acknowledge and deliver, or cause to be done, executed,
acknowledged and delivered, such instruments of transfer or take such other
steps or actions as may be necessary, or required by the Controlling Party, to
perfect the Security Interests granted hereunder in the Spread Account Agreement
Collateral, to ensure that such Security Interests rank prior to all other Liens
and to preserve the priority of such Security Interests and the validity and
enforceability thereof.
SECTION 5.02. NOTICES. In the event that the Issuer acquires knowledge
of the occurrence and continuance of any Insurance Agreement Event of Default or
Event of Default under the Indenture or of any event of default or like event,
howsoever described or called, under any of the Basic Documents, the Issuer
shall immediately give written notice thereof to the Collateral Agent and each
Issuer Secured Party.
SECTION 5.03. WAIVER OF STAY OR EXTENSION LAWS; MARSHALLING OF ASSETS.
The Issuer covenants, to the fullest extent permitted by applicable law, that it
will not at any time insist upon, plead or in any manner whatsoever claim or
take the benefit or advantage of, any appraisement, valuation, stay, extension
or redemption law wherever enacted, now or at any time hereafter in force, in
order to prevent or hinder the enforcement of this Agreement or any absolute
sale of the Spread Account Agreement Collateral or any part thereof, or the
possession thereof by any purchaser at any sale under Article Seven; and the
Issuer, to the fullest extent permitted by applicable law, for itself and all
who may claim under it, hereby waives the benefit of all such laws, and
covenants that it will not hinder, delay or impede the execution of any power
herein granted to the Collateral Agent, but will suffer and permit the execution
of every such power as though no such law had been enacted. The Issuer, for
itself and all who may claim under it, waives, to the fullest extent permitted
by applicable law, all right to have the Spread Account Agreement Collateral
marshaled upon any foreclosure or other disposition thereof.
27
SECTION 5.04. NONINTERFERENCE, ETC. The Issuer shall not (i) waive or
alter any of its rights under the Spread Account Agreement Collateral (or any
agreement or instrument relating thereto) without the prior written consent of
the Controlling Party, (ii) fail to pay any tax, assessment, charge or fee
levied or assessed against the Spread Account Agreement Collateral, or to defend
any action, if such failure to pay or defend may adversely affect the priority
or enforceability of the Issuer's right, title or interest in and to the Spread
Account Agreement Collateral or the Collateral Agent's lien on, and security
interest in, the Spread Account Agreement Collateral for the benefit of the
Issuer Secured Parties or (iii) take any action, or fail to take any action, if
such action or failure to take action will interfere with the enforcement of any
rights under the Basic Documents.
SECTION 5.05. ISSUER CHANGES.
(a) CHANGE IN NAME, STRUCTURE, ETC. The Issuer shall not change
its name, identity or corporate structure unless it shall have given
each Issuer Secured Party and the Collateral Agent at least 30 days'
prior written notice thereof, shall have effected any necessary or
appropriate assignments or amendments thereto and filings of financing
statements or amendments thereto.
(b) RELOCATION OF THE ISSUER. The Issuer shall not change its
principal executive office or jurisdiction of organization unless it
gives each Issuer Secured Party and the Collateral Agent at least 30
days' prior written notice of any relocation of its principal
executive office. If the Issuer relocates its principal executive
office, jurisdiction of organization or principal place of business
from Delaware, the Issuer shall give prior notice thereof to the
Controlling Party and the Collateral Agent and shall effect whatever
appropriate recordations and filings are necessary and shall provide
an Opinion of Counsel to the Controlling Party and the Collateral
Agent, to the effect that, upon the recording of any necessary
assignments or amendments to previously-recorded assignments and
filing of any necessary amendments to the previously filed financing
or continuation statements or upon the filing of one or more specified
new financing statements, and the taking of such other actions as may
be specified in such opinion, the security interests in the Spread
Account Agreement Collateral shall remain, after such relocation,
valid and perfected.
ARTICLE VI
CONTROLLING PARTY; INTERCREDITOR PROVISIONS
SECTION 6.01. APPOINTMENT OF CONTROLLING PARTY. From and after the
Closing Date until the Insurer Termination Date, the Insurer shall be the
Controlling Party and shall be entitled to exercise all the rights given the
Controlling Party hereunder. From and after the Insurer Termination Date until
the Trustee Termination Date,
28
the Trustee shall be the Controlling Party. Notwithstanding the foregoing, in
the event that an Insurer Default shall have occurred and be continuing, the
Trustee shall be the Controlling Party until the applicable Trustee Termination
Date. If prior to an Insurer Termination Date the Trustee shall have become the
Controlling Party as a result of the occurrence of an Insurer Default and either
such Insurer Default is cured or for any other reason ceases to exist or the
Trustee Termination Date occurs, then upon such cure or other cessation or on
such Trustee Termination Date, as the case may be, the Insurer shall, upon
written notice thereof being duly given to the Collateral Agent, again be the
Controlling Party.
SECTION 6.02. CONTROLLING PARTY'S AUTHORITY.
(a) The Issuer hereby irrevocably appoints the Collateral Agent,
and any successor to the Collateral Agent appointed pursuant to
Section 4.05, its true and lawful attorney, with full power of
substitution, in the name of the Issuer, the Issuer Secured Parties or
otherwise, but (subject to Section 2.06) at the expense of the Issuer,
to the extent permitted by law to exercise, at any time and from time
to time while any Insurance Agreement Event of Default has occurred
but at all such times at the written direction of the Controlling
Party, any or all of the following powers with respect to all or any
of the Spread Account Agreement Collateral: (i) to demand, ▇▇▇ for,
collect, receive and give acquittance for any and all monies due or to
become due upon or by virtue thereof, (ii) to settle, compromise,
compound, prosecute or defend any action or proceeding with respect
thereto, (iii) to sell, transfer, assign or otherwise deal with the
same or the proceeds thereof as fully and effectively as if the
Collateral Agent were the absolute owner thereof, and (iv) to extend
the time of payment of any or all thereof and to make any allowance or
other adjustments with respect thereto.
(b) With respect to the Notes and the related Spread Account
Agreement Collateral, each Issuer Secured Party hereby irrevocably and
unconditionally constitutes and appoints the Collateral Agent, and any
successor to such Collateral Agent appointed pursuant to Section 4.05
from time to time, as the true and lawful attorney-in-fact of the
Issuer Secured Parties, with full power of substitution, to execute,
acknowledge and deliver any notice, document, certificate, paper,
pleading or instrument and to do in the name of the Collateral Agent
as well as in the name, place and stead of such Issuer Secured Party
such acts, things and deeds for and on behalf of and in the name of
the Issuer Secured Parties under this Agreement which the Issuer
Secured Parties could or might do or which may be necessary, desirable
or convenient in the Collateral Agent's sole discretion with the prior
written consent of the Controlling Party or at the written direction
of the Controlling Party to effect the purposes contemplated hereunder
and, without limitation, exercise full right, power and authority to
take, or defer from taking, any and all acts with respect to the
administration of the Spread Account Agreement
29
Collateral, and the enforcement of the rights of the Issuer Secured
Parties hereunder, on behalf of and for the benefit of the Issuer
Secured Parties, as their interests may appear.
SECTION 6.03. RIGHTS OF ISSUER SECURED PARTIES. With respect to the
Notes and the related Spread Account Agreement Collateral, the Non-Controlling
Party at any time expressly agrees that it shall not assert any rights that it
may otherwise have, as an Issuer Secured Party with respect to the Spread
Account Agreement Collateral, to direct the maintenance, sale or other
disposition of the Spread Account Agreement Collateral or any portion thereof,
notwithstanding the occurrence and continuance of any Default or any
non-performance by the Issuer of any obligation owed to such Issuer Secured
Party hereunder or under any other Basic Document, and each party hereto agrees
that the Collateral Agent, at the direction of the Controlling Party shall be
the only Person entitled to assert and exercise such rights.
SECTION 6.04. DEGREE OF CARE.
(a) COLLATERAL AGENT. Notwithstanding any term or provision of
this Agreement, the Collateral Agent shall incur no liability to the
Issuer for any action taken or omitted by the Collateral Agent in
connection with the Spread Account Agreement Collateral, except for
any gross negligence, bad faith or willful misconduct on the part of
the Collateral Agent and, further, shall incur no liability to the
Non-Controlling Party except for the gross negligence, bad faith or
willful misconduct of the Collateral Agent in carrying out its duties,
if any, to the Non-Controlling Party. The Collateral Agent shall be
completely protected and shall incur no liability to any such party in
relying upon the accuracy, acting in reliance upon the contents and
assuming the genuineness of any notice, demand, certificate,
signature, instrument or other document believed by the Collateral
Agent to be genuine and to have been duly executed by the appropriate
signatory, and (absent manifest error or actual knowledge to the
contrary) the Collateral Agent shall not be required to make any
independent investigation with respect thereto. The Collateral Agent
shall, at all times, be free independently to establish to its
reasonable satisfaction the existence or nonexistence, as the case may
be, of any fact the existence or nonexistence of which shall be a
condition to the exercise or enforcement of any right or remedy under
this Agreement or any of the Basic Documents.
(b) THE NON- CONTROLLING PARTY. The Non-Controlling Party shall
not be liable to the Issuer for any action or failure to act by the
Controlling Party or the Collateral Agent in exercising, or failing to
exercise, any rights or remedies hereunder.
30
ARTICLE VII
REMEDIES UPON DEFAULT
SECTION 7.01. REMEDIES UPON A DEFAULT. If a Default has occurred, the
Collateral Agent shall, at the written direction of the Controlling Party, take
whatever action at law or in equity as may appear necessary or desirable in the
judgment of the Controlling Party to collect and satisfy all Issuer Secured
Obligations, including, but not limited to, foreclosure upon the Spread Account
Agreement Collateral and all other rights available to secured parties under
applicable law or to enforce performance and observance of any obligation,
agreement or covenant under any of the Basic Documents.
SECTION 7.02. WAIVER OF DEFAULT. The Controlling Party shall have the
sole right, to be exercised in its complete discretion, to waive any Default by
a writing setting forth the terms, conditions and extent of such waiver signed
by the Controlling Party and delivered to the Collateral Agent, the other Issuer
Secured Party and the Issuer. Any such waiver shall be binding upon the
Non-Controlling Party and the Collateral Agent. Unless such writing expressly
provides to the contrary, any waiver so granted shall extend only to the
specific event or occurrence which gave rise to the Default so waived and not to
any other similar event or occurrence which occurs subsequent to the date of
such waiver.
SECTION 7.03. RESTORATION OF RIGHTS AND REMEDIES. If the Collateral
Agent has instituted any proceeding 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 the Collateral Agent, then and in
every such case the Issuer, the Collateral Agent and each of the Issuer Secured
Parties shall, subject to any determination in such proceeding, be restored
severally and respectively to their former positions hereunder, and thereafter
all rights and remedies of the Issuer Secured Parties shall continue as though
no such proceeding had been instituted.
SECTION 7.04. NO REMEDY EXCLUSIVE. No right or remedy herein conferred
upon or reserved to the Collateral Agent, the Controlling Party or either of the
Issuer Secured Parties is intended to be exclusive of any other right or remedy,
and every right or remedy shall, to the extent permitted by law, be cumulative
and in addition to every other right and remedy given hereunder or now or
hereafter existing at law, in equity or otherwise (but, in each case, shall be
subject to the provisions of this Agreement limiting such remedies), and each
and every right, power and remedy whether specifically herein given or otherwise
existing may be exercised from time to time and as often and in such order as
may be deemed expedient by the Controlling Party, and the exercise of or the
beginning of the exercise of any right or power or remedy shall not be construed
to be a waiver of the right to exercise at the same time or thereafter any other
right, power or remedy.
31
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01. FURTHER ASSURANCES. Each party hereto shall take such
action and deliver such instruments to any other party hereto, in addition to
the actions and instruments specifically provided for herein, as may be
reasonably requested or required to effectuate the purpose or provisions of this
Agreement or to confirm or perfect any transaction described or contemplated
herein.
SECTION 8.02. WAIVER. Any waiver by any party of any provision of this
Agreement or any right, remedy or option hereunder shall only prevent and stop
such party from thereafter enforcing such provision, right, remedy or option if
such waiver is given in writing and only as to the specific instance and for the
specific purpose for which such waiver was given. The failure or refusal of any
party hereto to insist in any one or more instances, or in a course of dealing,
upon the strict performance of any of the terms or provisions of this Agreement
by any party hereto or the partial exercise of any right, remedy or option
hereunder shall not be construed as a waiver or relinquishment of any such term
or provision, but the same shall continue in full force and effect.
SECTION 8.03. AMENDMENTS; WAIVERS. No amendment, modification, waiver
or supplement to this Agreement or any provision of this Agreement shall in any
event be effective unless the same shall have been made or consented to in
writing by each of the parties hereto and the Rating Agency Condition shall have
been satisfied; provided, however, that, notwithstanding the foregoing, for so
long as the Insurer shall be the Controlling Party, any amendments,
modifications, waivers or supplements hereto, or to the Spread Account Agreement
Collateral or Spread Account or to any requirement hereunder to deposit or
retain any amounts in such Spread Account or to distribute any amounts therein
as provided in Section 3.03 shall be effective if made or consented to in
writing by the Insurer, the Issuer and the Collateral Agent (the consent of
which shall not be withheld or delayed with respect to any amendment that does
not adversely affect the Collateral Agent) but shall in no circumstances require
the consent of the Trustee or the Noteholders.
SECTION 8.04. SEVERABILITY. In the event that any provision of this
Agreement or the application thereof to any party hereto or to any circumstance
or in any jurisdiction governing this Agreement shall, to any extent, be invalid
or unenforceable under any applicable statute, regulation or rule of law, then
such provision shall be deemed inoperative to the extent that it is invalid or
unenforceable and the remainder of this Agreement, and the application of any
such invalid or unenforceable provision to the parties, jurisdictions or
circumstances other than to whom or to which it is held invalid or
unenforceable, shall not be affected thereby nor shall the same affect the
validity or enforceability of any other provision of this Agreement. The parties
hereto further agree that the holding by any court of competent jurisdiction
that any remedy pursued by the Collateral Agent, or any of the Issuer Secured
Parties, hereunder is unavailable or unenforceable shall not affect in any way
the ability of the Collateral Agent or any of the
32
Issuer Secured Parties to pursue any other remedy available to it or them
(subject, however, to the provisions of this Agreement limiting such remedies).
SECTION 8.05. NONPETITION COVENANT. Notwithstanding any prior
termination of this Agreement, each of the parties hereto agrees that it shall
not, prior to one year and one day after the Final Scheduled Distribution Date
of the Class A-4 and payment of all amounts due to the Insurer under the
Insurance Agreement, acquiesce, petition or otherwise invoke or cause the Issuer
or the Seller to invoke the process of the United States of America, any State
or other political subdivision thereof or any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or pertaining
to government for the purpose of commencing or sustaining a case by or against
the Issuer or the Seller under a Federal or state bankruptcy, insolvency or
similar law or appointing a receiver, liquidator, assignee, Trustee, custodian,
sequestrator or other similar official of the Issuer or the Seller or all or any
part of its respective property or assets or ordering the winding up or
liquidation of the affairs of the Issuer or the Seller. The parties agree that
damages will be an inadequate remedy for breach of this covenant and that this
covenant may be specifically enforced.
SECTION 8.06. NOTICES. All notices, demands, certificates, requests
and communications hereunder (" notices") shall be in writing and shall be
effective (a) upon receipt when sent through the U.S. mails, registered or
certified mail, return receipt requested, postage prepaid, with such receipt to
be effective the date of delivery indicated on the return receipt, (b) one
Business Day after delivery to an overnight courier, (c) on the date personally
delivered to an Authorized Officer of the party to which sent, or (d) on the
date transmitted by legible telecopier transmission with a confirmation of
receipt, in all cases addressed to the recipient as follows:
(a) If to the Issuer:
AmeriCredit Automobile Receivables Trust 2007-A-X
c/o Wilmington Trust Company
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇
Attention: Corporate Trust Administration
with a copy to:
AmeriCredit Corp.
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Chief Financial Officer
(b) If to the Insurer:
XL Capital Assurance Inc.
1221 Avenue of the Americas
▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Re: Policy No. CA03541A/CA03541B
Attention: Surveillance
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
E-mail: ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇.▇▇▇
(c) If to the Trustee and the Trust Collateral Agent:
▇▇▇▇▇ Fargo Bank, National Association
Sixth Street and Marquette Avenue
MAC N9311-161
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Trust Office
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
(d) If to the Collateral Agent:
▇▇▇▇▇ Fargo Bank, National Association
Sixth Street and Marquette Avenue
MAC N9311-161
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Trust Office
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
(e) If to Moody's:
▇▇▇▇▇'▇ Investors Service, Inc.
ABS Monitoring Department
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
(f) If to Standard & Poor's:
via electronic delivery to ▇▇▇▇▇▇▇▇_▇▇▇▇▇▇▇@▇▇▇▇▇.▇▇▇.
For any information not available in electronic format, send
hard copies to:
Standard & Poor's Ratings Services
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ 10041-0003
Attention: ABS Surveillance Group
A copy of each notice given hereunder to any party hereto shall also
be given to (without duplication) the Insurer, the Issuer, the Trustee, the
Trust Collateral
34
Agent and the Collateral Agent. Each party hereto may, by notice given in
accordance herewith to each of the other parties hereto, designate any further
or different address to which subsequent notices shall be sent.
SECTION 8.07. TERM OF THIS AGREEMENT. This Agreement shall take effect
on the Closing Date and shall continue in effect until the Distribution Date
occurring immediately following the Final Termination Date. On the Distribution
Date occurring immediately following the Final Termination Date and after giving
effect to any withdrawals pursuant to Section 3.03, this Agreement shall
terminate, all obligations of the parties hereunder shall cease and terminate
and the Spread Account Agreement Collateral, if any, held hereunder and not to
be used or applied in discharge of any obligations of the Issuer in respect of
the Issuer Secured Obligations or otherwise under this Agreement, shall be
released to and in favor of the Issuer; provided that the provisions of Sections
4.06, 4.07 and 8.05 shall survive any termination of this Agreement and the
release of any Spread Account Agreement Collateral upon such termination.
SECTION 8.08. ASSIGNMENTS; THIRD-PARTY RIGHTS; REINSURANCE.
(a) This Agreement shall be a continuing obligation of the
parties hereto and shall (i) be binding upon the parties and their
respective successors and assigns, and (ii) inure to the benefit of
and be enforceable by each Issuer Secured Party and the Collateral
Agent, and by their respective successors, transferees and assigns.
The Issuer may not assign this Agreement, or delegate any of its
duties hereunder, without the prior written consent of the Controlling
Party.
(b) The Insurer shall have the right to give participations in
its rights under this Agreement and to enter into contracts of
reinsurance with respect to the Note Policy issued in connection with
the Notes, upon such terms and conditions as the Insurer in its
discretion determines, and each such participant or reinsurer shall be
entitled to the benefit of any representation, warranty, covenant and
obligation of each party (other than the Insurer) hereunder as if such
participant or reinsurer was a party hereto and, subject only to such
agreement regarding such reinsurance or participation, shall have the
right to enforce the obligations of each such other party directly
hereunder; provided, however, that no such reinsurance or
participation agreement or arrangement shall relieve the Insurer of
its obligations hereunder, under the Basic Documents to which it is a
party or under the Note Policy. In addition, nothing contained herein
shall restrict the Insurer from assigning to any Person pursuant to
any liquidity facility or credit facility any rights of the Insurer
under this Agreement or with respect to any real or personal property
or other interests pledged to the Insurer, or in which the Insurer has
a security interest, in connection with the transactions contemplated
hereby.
35
SECTION 8.09. CONSENT OF CONTROLLING PARTY. In the event that the
Controlling Party's consent is required under the terms hereof or under the
terms of any Basic Document, it is understood and agreed that, except as
otherwise provided expressly herein, the determination whether to grant or
withhold such consent shall be made solely by the Controlling Party in its sole
discretion.
SECTION 8.10. CONSENTS TO JURISDICTION. Each of the parties hereto
irrevocably submits to the non-exclusive jurisdiction of the United States
District Court for the Southern District of New York, any court in the state of
New York located in the city and county of New York, and any appellate court
from any thereof, in any action, suit or proceeding brought against it and
related to or in connection with this Agreement, the other Basic Documents or
the transactions contemplated hereunder or thereunder or for recognition or
enforcement of any judgment and each of the parties hereto irrevocably and
unconditionally agrees that all claims in respect of any such suit or 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. Each of the parties hereto
agrees 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,
each of the parties hereby waives and agrees 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 this Agreement or any of the
other Basic Documents or the subject matter hereof or thereof may not be
litigated in or by such courts. The Issuer hereby irrevocably appoints and
designates ▇▇▇▇▇ Fargo Bank, National Association, as its true and lawful
attorney and duly authorized agent for acceptance of service of legal process.
The Issuer agrees that service of such process upon such Person shall constitute
personal service of such process upon it. Subject to Section 8.05, nothing
contained in this Agreement shall limit or affect the rights of any party hereto
to serve process in any other manner permitted by law or to start legal
proceedings relating to any of the Basic Documents against the Issuer or its
property in the courts of any jurisdiction.
SECTION 8.11. DETERMINATION OF ADVERSE EFFECT. Any determination of an
adverse effect on the interest of the Issuer Secured Parties or the Noteholders
shall be made without consideration of the availability of funds under the Note
Policy.
SECTION 8.12. HEADINGS. The headings of articles, sections and
paragraphs and the Table of Contents contained in this Agreement are provided
for convenience only. They form no part of this Agreement and shall not affect
its construction or interpretation.
SECTION 8.13. TRIAL BY JURY WAIVED. EACH OF THE PARTIES HERETO WAIVES,
TO THE FULLEST EXTENT PERMITTED BY LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY
IN RESPECT OF ANY LITIGATION ARISING DIRECTLY OR INDIRECTLY OUT OF, UNDER OR IN
CONNECTION WITH THIS AGREEMENT, ANY OF THE OTHER BASIC DOCUMENTS OR ANY
36
OF THE TRANSACTIONS CONTEMPLATED HEREUNDER OR THEREUNDER. EACH OF THE PARTIES
HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER
PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT,
IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B)
ACKNOWLEDGES THAT IT HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER
BASIC DOCUMENTS TO WHICH IT IS A PARTY, BY AMONG OTHER THINGS, THIS WAIVER.
SECTION 8.14. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD
TO ITS CONFLICTS OF LAW PROVISIONS (OTHER THAN SECTION 5-1401 OF THE GENERAL
OBLIGATIONS LAW), AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES UNDER
THIS AGREEMENT SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
SECTION 8.15. COUNTERPARTS. This Agreement may be executed in two or
more counterparts by the parties hereto, and each such counterpart shall be
considered an original and all such counterparts shall constitute one and the
same instrument.
SECTION 8.16. LIMITATION OF LIABILITY.
(a) Notwithstanding anything contained herein to the contrary,
this Agreement has been countersigned by Wilmington Trust Company not
in its individual capacity but solely in its capacity as Owner Trustee
of the Issuer and in no event shall Wilmington Trust Company in its
individual capacity or, except as expressly provided in the Trust
Agreement, as Owner Trustee have any liability for the
representations, warranties, covenants, agreements or other
obligations of the Issuer hereunder or in any of the certificates,
notices or agreements delivered pursuant hereto, as to all of which
recourse shall be had solely to the assets of the Issuer. For all
purposes of this Agreement, in the performance of its duties or
obligations hereunder or in the performance of any duties or
obligations of the Issuer hereunder, the Owner Trustee shall be
subject to, and entitled to the benefits of, the terms and provisions
of Articles V, VI and VII of the Trust Agreement.
(b) Notwithstanding anything contained herein to the contrary,
this Agreement has been executed and delivered by ▇▇▇▇▇ Fargo Bank,
National Association, not in its individual capacity but solely in its
capacities as Collateral Agent, Trustee and Trust Collateral Agent and
in no event shall ▇▇▇▇▇ Fargo Bank, National Association, have any
liability for the representations, warranties, covenants, agreements
or other obligations of the Issuer hereunder or in any of the
certificates, notices or agreements delivered pursuant hereto, as to
all of which recourse shall be had solely to the assets of the Issuer.
37
IN WITNESS WHEREOF, the parties hereto have executed this Spread
Account Agreement as of the date set forth on the first page hereof.
AMERICREDIT AUTOMOBILE RECEIVABLES TRUST
2007-A-X, as Issuer
By: WILMINGTON TRUST COMPANY, not in its
individual capacity but solely as
Owner Trustee on behalf of the
Trust.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------------
Title: Financial Services Officer
XL CAPITAL ASSURANCE INC., as Insurer
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇
------------------------------------
Title: Senior Managing Director
▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION,
as Trustee, as Trust Collateral Agent
and as Collateral Agent
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------------
Title: Vice President
Accepted and Agreed with respect to Sections 3.06, 4.06 and 4.07:
AMERICREDIT FINANCIAL SERVICES, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
---------------------------------
Title: Senior Vice-President,
Structured Finance
