Representations and Warranties of AmeriCredit, AFC and the Issuer. AmeriCredit, AFC and the Issuer each severally, with respect to itself only, represents and warrants to the Class A Purchasers, the Agents and the Administrative Agent that its representations and warranties (individually or as Seller or Servicer, as applicable) set forth in the Sale and Servicing Agreement, the Indenture and the other Related Documents are true and correct as of the date hereof (except for representations or warranties which relate to a specific date, which shall be true and correct as of such date). AmeriCredit, AFC and the Issuer each severally, with respect to itself only, further represents and warrants to, and agrees with, each Class A Purchaser and Agent and the Administrative Agent that, as of the date hereof and as of each Borrowing Date: (a) It is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware as a corporation (if AmeriCredit or AFC) or a Delaware statutory trust (if the Issuer), with full power and authority under such laws to own its properties and conduct its business as such properties are presently owned and such business is presently conducted and to execute, deliver and perform its obligations under this Agreement and the Related Documents to which it is a party. (b) It has the power and authority to execute, deliver and perform this Agreement and the Related Documents to which it is a party and all the transactions contemplated hereby and thereby and has taken all necessary action to authorize the execution, delivery and performance by it of this Agreement and such Related Documents. When executed and delivered, each of this Agreement and each such Related Document will constitute its legal, valid and binding agreement, enforceable in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, reorganization, insolvency, moratorium and other laws of general applicability relating to or affecting creditors’ rights generally. The enforceability of its obligations under such agreements is also subject to general principles of equity, regardless of whether such enforceability is considered in a proceeding in equity or at law, and indemnification sought in respect of securities laws violations may be limited by public policy. (c) No consent, license, approval or authorization of, or registration with, any governmental authority, bureau or agency is required to be obtained in connection with its execution, delivery or performance of each of this Agreement or any Related Documents that has not been duly obtained and which is not and will not be in full force and effect on the Closing Date, except such that may be required by the blue sky laws of any state and except those which the failure to obtain individually or in the aggregate, would not have a material adverse effect on it or the transactions contemplated by, or its ability to perform its obligations under, this Agreement or the Related Documents to which it is a party. (d) The execution, delivery and performance by it of each of this Agreement and the Related Documents to which it is a party do not violate any provision of any existing law or regulation applicable to it, any order or decree of any court to which it is subject, its charter or by-laws or any mortgage, indenture, contract or other agreement to which it is a party or by which it or any significant portion of its properties is bound (other than violations of such laws, regulations, orders, decrees, mortgages, indentures, contracts and other agreements which do not affect the legality, validity or enforceability of any of such agreements or the Receivables and which, individually or in the aggregate, would not have a material adverse effect on it or the transactions contemplated by, or its ability to perform its obligations under, this Agreement or the Related Documents to which it is a party). (e) To its knowledge, except to the extent already disclosed in writing to the Administrative Agent and the Class A Purchasers, there is no litigation or administrative proceeding before any court, tribunal or governmental body presently pending or threatened, against it with respect to this Agreement and the Related Documents to which it is a party, the transactions contemplated hereby or thereby or the issuance of the Notes, and there is no such litigation or proceeding against it or any significant portion of its properties, in each case which would have a material adverse effect on it or the transactions contemplated by, or its ability to perform its respective obligations under, this Agreement or the Related Documents to which it is a party. (f) It has delivered to the Administrative Agent and each Agent complete and correct copies of, in the case of AmeriCredit, its audited consolidated balance sheet as at June 30, 2006, and the related audited consolidated statements of income, shareholders’ equity and cash flows for the fiscal year then ended, accompanied by the report thereon of PriceWaterhouseCoopers. Such financial statements fairly present in all material respects its financial condition as at such date and the results of its operations for the period ended on such date, all in accordance with United States generally accepted accounting principles or regulatory accounting principles, as applicable, consistently applied, and since June 30, 2006 there has been no material adverse change in its condition or operations. (g) The issuance and sale of the Notes is exempt from the registration requirements of the Securities Act; the Indenture is exempt from qualification under the Trust Indenture Act, and neither any Seller nor the Issuer is required to be registered under the Investment Company Act. (h) On the Closing Date and after giving effect to the issuance of the Notes, no Event of Default, Termination Event or Servicer Termination Event has occurred and is continuing, and no event, act or omission has occurred and is continuing which, with the lapse of time, the giving of notice or both, would constitute an Event of Default, Servicer Termination Event or other Termination Event. (i) No proceeds of any Borrowing will be used by the Issuer to acquire any security in any transaction which is subject to Section 13 or 14 of the Securities Exchange Act of 1934, as amended. (j) The chief executive office of the Issuer is located at the Corporate Trust Office (as defined in the Trust Agreement). (k) The Issuer is solvent and will not become insolvent after giving effect to the transactions contemplated by this Agreement and the Basic Documents. The Issuer has no Indebtedness to any Person other than pursuant to this Agreement and the other Basic Documents. The Issuer, after giving effect to the transactions contemplated by this Agreement and the other Basic Documents, will have adequate funds to conduct its business in the foreseeable future. (l) The Issuer has filed on a timely basis all tax returns (including, without limitation, foreign, federal, state, local and otherwise) required to be filed, is not liable for taxes payable by any other Person and has paid or made adequate provisions for the payment of all taxes, assessments and other governmental charges due from the Issuer. No tax lien or similar adverse claim has been filed, and no claim is being asserted, with respect to any such tax, assessment or other governmental charge. Any taxes, fees and other governmental charges payable by the Issuer in connection with the execution and delivery of this Agreement and the other Basic Documents and the transactions contemplated hereby or thereby including the transfer of each Receivable to the Issuer have been paid or shall have been paid if and when due at or prior to the Closing Date and the relevant Transfer Date, as the case may be. (m) Each Servicer’s Certificate and Borrowing Base Confirmation is accurate in all material respects as of the date thereof. (n) Each Receivable and other Collateral was purchased by, or contributed to, the Issuer on the relevant Transfer Date pursuant to the Sale and Servicing Agreement. (o) All information heretofore or hereafter furnished by or on behalf of the Issuer to any Purchaser, the Administrative Agent or any Agent in connection with this Agreement or any transaction contemplated hereby is and will be true and complete in all material respects and does not and will not omit to state a material fact necessary to make the statements contained therein not misleading. (p) The Issuer is in compliance with ERISA and has not incurred and does not expect to incur any liabilities (except for premium payments arising in the ordinary course of business) to the Pension Benefit Guaranty Corporation (or any successor thereto) under ERISA. (q) There has been no material adverse change in the condition (financial or otherwise), business, operations, results of operations, or properties of the Issuer. (r) The Issuer is not an “investment company” within the meaning of the Investment Company Act of 1940, as amended, or is exempt from all provisions of such Act. (s) The Issuer has no trade names, fictitious names, assumed names or “doing business as” names. (t) The Issuer is operated as an entity with assets and liabilities distinct from those of AmeriCredit and any other Affiliates of the Issuer, and the Issuer hereby acknowledges that the Administrative Agent, each of the Agents and each of the Purchasers are entering into the transactions contemplated by this Agreement in reliance upon the Issuer’s identity as a separate legal entity from AmeriCredit and each such Affiliate. There is not now, nor will there be at any time in the future, any agreement or understanding between AmeriCredit or any Affiliate and the Issuer (other than as expressly set forth herein) providing for the allocation or sharing of obligations to make payments or otherwise in respect of any taxes, fees, assessments or other governmental charges. (u) The Issuer does not own or hold, directly or indirectly, any capital stock or equity security of, or any equity interest in, any Person. (v) The Sale and Servicing Agreement is the only agreement pursuant to which the Issuer purchases Receivables, and the Basic Documents delivered to the Administrative Agent represent all material agreements between AmeriCredit and the Sellers, on the one hand, and the Issuer, on the other. The Issuer has furnished to the Agent true, correct and complete copies of each Basic Document to which the Issuer is a party, each of which is in full force and effect. Neither the Issuer nor any Affiliate party thereto is in default of any of its obligations thereunder in any material respect. Upon the purchase of each Receivable pursuant to the Sale and Servicing Agreement, the Issuer shall be the lawful owner of, and have good title to, such Receivable and all assets relating thereto, free and clear of any Liens. All such assets are transferred to the Issuer without recourse to a Seller except as described in the Purchase Agreement. The purchases of such assets by the Issuer constitute valid and true sales for consideration (and not merely a pledge of such assets for security purposes) enforceable against creditors of the Sellers, and no such assets shall constitute property of a Seller. (w) One hundred percent (100%) of the outstanding Certificates are and will be directly owned (both beneficially and of record) by at least two holders and such holders shall not include any Person other than AmeriCredit or AFC. All Certificates are and will be validly issued, and there are no options, warrants or other rights to acquire Certificates or other equity rights in the Issuer. (x) All Receivables included in the Class A Borrowing Base as of the most recently delivered Servicer’s Certificate or Borrowing Base Confirmation are Eligible Receivables.
Appears in 1 contract
Representations and Warranties of AmeriCredit, AFC and the Issuer. AmeriCredit, AFC and the Issuer each severally, with respect to itself only, represents and warrants to the Class A B Purchasers, the Agents and the Administrative Agent that its representations and warranties (individually or as Seller or Servicer, as applicable) set forth in the Sale and Servicing Agreement, the Indenture and the other Related Documents and in the Existing Trust Note Documentation are true and correct as of the date hereof (except for representations or warranties which relate to a specific date, which shall be true and correct as of such date). AmeriCredit, AFC and the Issuer each severally, with respect to itself only, further represents and warrants to, and agrees with, each Class A B Purchaser and Agent and the Administrative Agent that, as of the date hereof and as of each Borrowing Date:
(a) It is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware as a corporation (if AmeriCredit or AFC) or a Delaware statutory trust (if the Issuer), with full power and authority under such laws to own its properties and conduct its business as such properties are presently owned and such business is presently conducted and to execute, deliver and perform its obligations under this Agreement and the Related Documents to which it is a party.
(b) It has the power and authority to execute, deliver and perform this Agreement and the Related Documents to which it is a party and all the transactions contemplated hereby and thereby and has taken all necessary action to authorize the execution, delivery and performance by it of this Agreement and such Related Documents. When executed and delivered, each of this Agreement and each such Related Document will constitute its legal, valid and binding agreement, enforceable in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, reorganization, insolvency, moratorium and other laws of general applicability relating to or affecting creditors’ rights generally. The enforceability of its obligations under such agreements is also subject to general principles of equity, regardless of whether such enforceability is considered in a proceeding in equity or at law, and indemnification sought in respect of securities laws violations may be limited by public policy.
(c) No consent, license, approval or authorization of, or registration with, any governmental authority, bureau or agency is required to be obtained in connection with its execution, delivery or performance of each of this Agreement or any Related Documents that has not been duly obtained and which is not and will not be in full force and effect on the Closing Effective Date, except such that may be required by the blue sky laws of any state and except those which the failure to obtain individually or in the aggregate, would not have a material adverse effect on it or the transactions contemplated by, or its ability to perform its obligations under, this Agreement or the Related Documents to which it is a party.
(d) The execution, delivery and performance by it of each of this Agreement and the Related Documents to which it is a party do not violate any provision of any existing law or regulation applicable to it, any order or decree of any court to which it is subject, its charter or by-laws or other formation documents or any mortgage, indenture, contract or other agreement to which it is a party or by which it or any significant portion of its properties is bound (other than violations of such laws, regulations, orders, decrees, mortgages, indentures, contracts and other agreements which do not affect the legality, validity or enforceability of any of such agreements or the Receivables or the Collateral and which, individually or in the aggregate, would not have a material adverse effect on it or the transactions contemplated by, or its ability to perform its obligations under, this Agreement or the Related Documents to which it is a party).
(e) To its knowledge, except to the extent already disclosed in writing to the Administrative Agent and the Class A B Purchasers, there is no litigation or administrative proceeding before any court, tribunal or governmental body presently pending or threatened, against it with respect to this Agreement and the Related Documents to which it is a party, the transactions contemplated hereby or thereby or the issuance of the Notes, and there is no such litigation or proceeding against it or any significant portion of its properties, in each case which would have a material adverse effect on it or the transactions contemplated by, or its ability to perform its respective obligations under, this Agreement or the Related Documents to which it is a party.
(f) It has delivered to the Administrative Agent and each Agent complete and correct copies of, in the case of AmeriCredit, its audited consolidated balance sheet as at June 30, 20062008, and the related audited consolidated statements of income, shareholders’ equity and cash flows for the fiscal year then ended, accompanied by the report thereon of PriceWaterhouseCoopersDeloitte & Touche. Such financial statements fairly present in all material respects its financial condition as at such date and the results of its operations for the period ended on such date, all in accordance with United States generally accepted accounting principles or regulatory accounting principles, as applicable, consistently applied, and since June 30, 2006 2008 there has been no material adverse change in its condition or operations.
(g) The issuance and sale of the Notes is exempt from the registration requirements of the Securities Act; the Indenture is exempt from qualification under the Trust Indenture Act, and neither any the Seller nor the Issuer is required to be registered under the Investment Company Act.
(h) On the Closing Effective Date and after giving effect to the issuance of the Notes, no Event of Default, Termination Event or Servicer Termination Event has occurred and is continuing, and no event, act or omission has occurred and is continuing which, with the lapse of time, the giving of notice or both, would constitute an Event of Default, Servicer Termination Event or other Termination Event.
(i) No proceeds of any Borrowing will be used by the Issuer to acquire any security in any transaction which is subject to Section 13 or 14 of the Securities Exchange Act of 1934, as amended.
(j) The chief executive office of the Issuer is located at the Corporate Trust Office (as defined in the Trust Agreement).
(k) The Issuer is solvent and will not become insolvent after giving effect to the transactions contemplated by this Agreement and the Basic Documents. The Issuer has no Indebtedness to any Person other than pursuant to this Agreement and the other Basic Documents. The Issuer, after giving effect to the transactions contemplated by this Agreement and the other Basic Documents, will have adequate funds to conduct its business in the foreseeable future.
(l) The Issuer has filed on a timely basis all tax returns (including, without limitation, foreign, federal, state, local and otherwise) required to be filed, is not liable for taxes payable by any other Person and has paid or made adequate provisions for the payment of all taxes, assessments and other governmental charges due from the Issuer. No tax lien or similar adverse claim has been filed, and no claim is being asserted, with respect to any such tax, assessment or other governmental charge. Any taxes, fees and other governmental charges payable by the Issuer in connection with the execution and delivery of this Agreement and the other Basic Documents and the transactions contemplated hereby or thereby including the transfer of each Receivable to the Issuer have been paid or shall have been paid if and when due at or prior to the Closing Effective Date and the relevant Transfer Date, as the case may be.
(m) Each Servicer’s Certificate and Borrowing Base Confirmation is accurate in all material respects as of the date thereof.
(n) Each Receivable and other Collateral was purchased by, or contributed to, the Issuer on the relevant Transfer Date pursuant to the Sale and Servicing AgreementAgreement or on the Closing Date pursuant to the Residual Interests – Owned Transfer Documents or the Trust Agreement .
(o) All information heretofore or hereafter furnished by or on behalf of the Issuer to any Purchaser, the Administrative Agent or any Agent in connection with this Agreement or any transaction contemplated hereby is and will be true and complete in all material respects and does not and will not omit to state a material fact necessary to make the statements contained therein not misleading.
(p) The Issuer is in compliance with ERISA and has not incurred and does not expect to incur any liabilities (except for premium payments arising in the ordinary course of business) to the Pension Benefit Guaranty Corporation (or any successor thereto) under ERISA.
(q) There has been no material adverse change in the condition (financial or otherwise), business, operations, results of operations, or properties of the Issuer.
(r) The Issuer is not an “investment company” within the meaning of the Investment Company Act of 1940, as amended, or is exempt from all provisions of such Act.
(s) The Issuer has no trade names, fictitious names, assumed names or “doing business as” names.
(t) The Issuer is operated as an entity with assets and liabilities distinct from those of AmeriCredit and any other Affiliates of the Issuer, and the Issuer hereby acknowledges that the Administrative Agent, each of the Agents and each of the Purchasers are entering into the transactions contemplated by this Agreement in reliance upon the Issuer’s identity as a separate legal entity from AmeriCredit and each such Affiliate. There is not now, nor will there be at any time in the future, any agreement or understanding between AmeriCredit or any Affiliate and the Issuer (other than as expressly set forth herein) providing for the allocation or sharing of obligations to make payments or otherwise in respect of any taxes, fees, assessments or other governmental charges.
(u) The Issuer does not own or hold, directly or indirectly, any capital stock or equity security of, or any equity interest in, any Person, other than the Existing Trust Residual Interest and Residual Interests—Owned.
(v) The Sale and Servicing Agreement is the only agreement pursuant to which the Issuer purchases Receivables, and the Basic Documents delivered to the Administrative Agent represent all material agreements between AmeriCredit and the SellersSeller, on the one hand, and the Issuer, on the other. The Issuer has furnished to the Agent true, correct and complete copies of each Basic Document to which the Issuer is a party, each of which is in full force and effect. Neither the Issuer nor any Affiliate party thereto is in default of any of its obligations thereunder in any material respect. Upon the purchase of each Receivable pursuant to the Sale and Servicing Agreement, the Issuer shall be the lawful owner of, and have good title to, such Receivable and all assets relating thereto, free and clear of any Liens. The Issuer is the lawful owner of, and has good title to, the Collateral Notes, the Existing Trust Residual Interest and, until the Residual Interest Release Date, the Residual Interests – Owned free and clear of any Liens. All such assets are transferred to the Issuer without recourse to a the Seller except as described in the Purchase Agreement. The purchases of such assets by the Issuer constitute valid and true sales for consideration (and not merely a pledge of such assets for security purposes) enforceable against creditors of the SellersSeller, and no such assets shall constitute property of a the Seller.
(w) One hundred percent (100%) of the outstanding Certificates are and will be directly owned (both beneficially and of record) by at least two holders and such holders shall not include any Person other than AmeriCredit or AFC. All Certificates are and will be validly issued, and there are no options, warrants or other rights to acquire Certificates or other equity rights in the Issuer.
(x) All Receivables included in the Class A B Borrowing Base as of the most recently delivered Servicer’s Certificate or Borrowing Base Confirmation are Eligible Receivables.
Appears in 1 contract
Representations and Warranties of AmeriCredit, AFC and the Issuer. AmeriCredit, AFC and the Issuer each severally, with respect to itself only, represents and warrants to the Class A B Purchasers, the Agents and the Administrative Agent that its representations and warranties (individually or as Seller or Servicer, as applicable) set forth in the Sale and Servicing Agreement, the Indenture and the other Related Documents are true and correct as of the date hereof (except for representations or warranties which relate to a specific date, which shall be true and correct as of such date). AmeriCredit, AFC and the Issuer each severally, with respect to itself only, further represents and warrants to, and agrees with, each Class A B Purchaser and Agent and the Administrative Agent that, as of the date hereof and as of each Borrowing Date:
(a) It is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware as a corporation (if AmeriCredit or AFC) or a Delaware statutory trust (if the Issuer), with full power and authority under such laws to own its properties and conduct its business as such properties are presently owned and such business is presently conducted and to execute, deliver and perform its obligations under this Agreement and the Related Documents to which it is a party.
(b) It has the power and authority to execute, deliver and perform this Agreement and the Related Documents to which it is a party and all the transactions contemplated hereby and thereby and has taken all necessary action to authorize the execution, delivery and performance by it of this Agreement and such Related Documents. When executed and delivered, each of this Agreement and each such Related Document will constitute its legal, valid and binding agreement, enforceable in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, reorganization, insolvency, moratorium and other laws of general applicability relating to or affecting creditors’ rights generally. The enforceability of its obligations under such agreements is also subject to general principles of equity, regardless of whether such enforceability is considered in a proceeding in equity or at law, and indemnification sought in respect of securities laws violations may be limited by public policy.
(c) No consent, license, approval or authorization of, or registration with, any governmental authority, bureau or agency is required to be obtained in connection with its execution, delivery or performance of each of this Agreement or any Related Documents that has not been duly obtained and which is not and will not be in full force and effect on the Closing Date, except such that may be required by the blue sky laws of any state and except those which the failure to obtain individually or in the aggregate, would not have a material adverse effect on it or the transactions contemplated by, or its ability to perform its obligations under, this Agreement or the Related Documents to which it is a party.
(d) The execution, delivery and performance by it of each of this Agreement and the Related Documents to which it is a party do not violate any provision of any existing law or regulation applicable to it, any order or decree of any court to which it is subject, its charter or by-laws or any mortgage, indenture, contract or other agreement to which it is a party or by which it or any significant portion of its properties is bound (other than violations of such laws, regulations, orders, decrees, mortgages, indentures, contracts and other agreements which do not affect the legality, validity or enforceability of any of such agreements or the Receivables and which, individually or in the aggregate, would not have a material adverse effect on it or the transactions contemplated by, or its ability to perform its obligations under, this Agreement or the Related Documents to which it is a party).
(e) To its knowledge, except to the extent already disclosed in writing to the Administrative Agent and the Class A B Purchasers, there is no litigation or administrative proceeding before any court, tribunal or governmental body presently pending or threatened, against it with respect to this Agreement and the Related Documents to which it is a party, the transactions contemplated hereby or thereby or the issuance of the Notes, and there is no such litigation or proceeding against it or any significant portion of its properties, in each case which would have a material adverse effect on it or the transactions contemplated by, or its ability to perform its respective obligations under, this Agreement or the Related Documents to which it is a party.
(f) It has delivered to the Administrative Agent and each Agent complete and correct copies of, in the case of AmeriCredit, its audited consolidated balance sheet as at June 30, 20062007, and the related audited consolidated statements of income, shareholders’ equity and cash flows for the fiscal year then ended, accompanied by the report thereon of PriceWaterhouseCoopersDeloitte & Touche USA LLP. Such financial statements fairly present in all material respects its financial condition as at such date and the results of its operations for the period ended on such date, all in accordance with United States generally accepted accounting principles or regulatory accounting principles, as applicable, consistently applied, and since June 30, 2006 2007 there has been no material adverse change in its condition or operations.
(g) The issuance and sale of the Notes is exempt from the registration requirements of the Securities Act; the Indenture is exempt from qualification under the Trust Indenture Act, and neither any Seller nor the Issuer is required to be registered under the Investment Company Act.
(h) On the Closing Date and after giving effect to the issuance of the Notes, no Event of Default, Termination Event or Servicer Termination Event has occurred and is continuing, and no event, act or omission has occurred and is continuing which, with the lapse of time, the giving of notice or both, would constitute an Event of Default, Servicer Termination Event or other Termination Event.
(i) No proceeds of any Borrowing will be used by the Issuer to acquire any security in any transaction which is subject to Section 13 or 14 of the Securities Exchange Act of 1934, as amended.
(j) The chief executive office of the Issuer is located at the Corporate Trust Office (as defined in the Trust Agreement).
(k) The Issuer is solvent and will not become insolvent after giving effect to the transactions contemplated by this Agreement and the Basic Documents. The Issuer has no Indebtedness to any Person other than pursuant to this Agreement and the other Basic Documents. The Issuer, after giving effect to the transactions contemplated by this Agreement and the other Basic Documents, will have adequate funds to conduct its business in the foreseeable future.
(l) The Issuer has filed on a timely basis all tax returns (including, without limitation, foreign, federal, state, local and otherwise) required to be filed, is not liable for taxes payable by any other Person and has paid or made adequate provisions for the payment of all taxes, assessments and other governmental charges due from the Issuer. No tax lien or similar adverse claim has been filed, and no claim is being asserted, with respect to any such tax, assessment or other governmental charge. Any taxes, fees and other governmental charges payable by the Issuer in connection with the execution and delivery of this Agreement and the other Basic Documents and the transactions contemplated hereby or thereby including the transfer of each Receivable to the Issuer have been paid or shall have been paid if and when due at or prior to the Closing Date and the relevant Transfer Date, as the case may be.
(m) Each Servicer’s Certificate and Borrowing Base Confirmation Notice is accurate in all material respects as of the date thereof.
(n) Each Receivable and other Collateral was purchased by, or contributed to, the Issuer on the relevant Transfer Date pursuant to the Sale and Servicing Agreement.
(o) All information heretofore or hereafter furnished by or on behalf of the Issuer to any Purchaser, the Administrative Agent or any Agent in connection with this Agreement or any transaction contemplated hereby is and will be true and complete in all material respects and does not and will not omit to state a material fact necessary to make the statements contained therein not misleading.
(p) The Issuer is in compliance with ERISA and has not incurred and does not expect to incur any liabilities (except for premium payments arising in the ordinary course of business) to the Pension Benefit Guaranty Corporation (or any successor thereto) under ERISA.
(q) There has been no material adverse change in the condition (financial or otherwise), business, operations, results of operations, or properties of the Issuer.
(r) The Issuer is not an “investment company” within the meaning of the Investment Company Act of 1940, as amended, or is exempt from all provisions of such Act.
(s) The Issuer has no trade names, fictitious names, assumed names or “doing business as” names.
(t) The Issuer is operated as an entity with assets and liabilities distinct from those of AmeriCredit and any other Affiliates of the Issuer, and the Issuer hereby acknowledges that the Administrative Agent, each of the Agents and each of the Purchasers are entering into the transactions contemplated by this Agreement in reliance upon the Issuer’s identity as a separate legal entity from AmeriCredit and each such Affiliate. There is not now, nor will there be at any time in the future, any agreement or understanding between AmeriCredit or any Affiliate and the Issuer (other than as expressly set forth herein) providing for the allocation or sharing of obligations to make payments or otherwise in respect of any taxes, fees, assessments or other governmental charges.
(u) The Issuer does not own or hold, directly or indirectly, any capital stock or equity security of, or any equity interest in, any Person.
(v) The Sale and Servicing Agreement is the only agreement pursuant to which the Issuer purchases Receivables, and the Basic Documents delivered to the Administrative Agent represent all material agreements between AmeriCredit and the Sellers, on the one hand, and the Issuer, on the other. The Issuer has furnished to the Agent true, correct and complete copies of each Basic Document to which the Issuer is a party, each of which is in full force and effect. Neither the Issuer nor any Affiliate party thereto is in default of any of its obligations thereunder in any material respect. Upon the purchase of each Receivable pursuant to the Sale and Servicing Agreement, the Issuer shall be the lawful owner of, and have good title to, such Receivable and all assets relating thereto, free and clear of any Liens. All such assets are transferred to the Issuer without recourse to a Seller except as described in the Purchase Agreement. The purchases of such assets by the Issuer constitute valid and true sales for consideration (and not merely a pledge of such assets for security purposes) enforceable against creditors of the Sellers, and no such assets shall constitute property of a Seller.
(w) One hundred percent (100%) of the outstanding Certificates are and will be directly owned (both beneficially and of record) by at least two holders and such holders shall not include any Person other than AmeriCredit or AFC. All Certificates are and will be validly issued, and there are no options, warrants or other rights to acquire Certificates or other equity rights in the Issuer.
(x) All Receivables included in the Class A calculation of Borrowing Base Default as of the most recently delivered Servicer’s Certificate or Borrowing Base Confirmation Notice are Eligible Receivables.
Appears in 1 contract
Representations and Warranties of AmeriCredit, AFC and the Issuer. AmeriCredit, AFC and the Issuer each severally, with respect to itself only, represents and warrants to the Class A Purchasers, the Agents and the Administrative Agent that its representations and warranties (individually or as Seller or Servicer, as applicable) set forth in the Sale and Servicing Agreement, the Indenture and the other Related Documents and in the Existing Trust Note Documentation are true and correct as of the date hereof (except for representations or warranties which relate to a specific date, which shall be true and correct as of such date). AmeriCredit, AFC and the Issuer each severally, with respect to itself only, further represents and warrants to, and agrees with, each Class A Purchaser and Agent and the Administrative Agent that, as of the date hereof and as of each Borrowing Date:
(a) It is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware as a corporation (if AmeriCredit or AFC) or a Delaware statutory trust (if the Issuer), with full power and authority under such laws to own its properties and conduct its business as such properties are presently owned and such business is presently conducted and to execute, deliver and perform its obligations under this Agreement and the Related Documents to which it is a party.
(b) It has the power and authority to execute, deliver and perform this Agreement and the Related Documents to which it is a party and all the transactions contemplated hereby and thereby and has taken all necessary action to authorize the execution, delivery and performance by it of this Agreement and such Related Documents. When executed and delivered, each of this Agreement and each such Related Document will constitute its legal, valid and binding agreement, enforceable in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, reorganization, insolvency, moratorium and other laws of general applicability relating to or affecting creditors’ rights generally. The enforceability of its obligations under such agreements is also subject to general principles of equity, regardless of whether such enforceability is considered in a proceeding in equity or at law, and indemnification sought in respect of securities laws violations may be limited by public policy.
(c) No consent, license, approval or authorization of, or registration with, any governmental authority, bureau or agency is required to be obtained in connection with its execution, delivery or performance of each of this Agreement or any Related Documents that has not been duly obtained and which is not and will not be in full force and effect on the Closing Effective Date, except such that may be required by the blue sky laws of any state and except those which the failure to obtain individually or in the aggregate, would not have a material adverse effect on it or the transactions contemplated by, or its ability to perform its obligations under, this Agreement or the Related Documents to which it is a party.
(d) The execution, delivery and performance by it of each of this Agreement and the Related Documents to which it is a party do not violate any provision of any existing law or regulation applicable to it, any order or decree of any court to which it is subject, its charter or by-laws or other formation documents or any mortgage, indenture, contract or other agreement to which it is a party or by which it or any significant portion of its properties is bound (other than violations of such laws, regulations, orders, decrees, mortgages, indentures, contracts and other agreements which do not affect the legality, validity or enforceability of any of such agreements or the Receivables or the Collateral and which, individually or in the aggregate, would not have a material adverse effect on it or the transactions contemplated by, or its ability to perform its obligations under, this Agreement or the Related Documents to which it is a party).
(e) To its knowledge, except to the extent already disclosed in writing to the Administrative Agent and the Class A Purchasers, there is no litigation or administrative proceeding before any court, tribunal or governmental body presently pending or threatened, against it with respect to this Agreement and the Related Documents to which it is a party, the transactions contemplated hereby or thereby or the issuance of the Notes, and there is no such litigation or proceeding against it or any significant portion of its properties, in each case which would have a material adverse effect on it or the transactions contemplated by, or its ability to perform its respective obligations under, this Agreement or the Related Documents to which it is a party.
(f) It has delivered to the Administrative Agent and each Agent complete and correct copies of, in the case of AmeriCredit, its audited consolidated balance sheet as at June 30, 20062008, and the related audited consolidated statements of income, shareholders’ equity and cash flows for the fiscal year then ended, accompanied by the report thereon of PriceWaterhouseCoopersDeloitte & Touche. Such financial statements fairly present in all material respects its financial condition as at such date and the results of its operations for the period ended on such date, all in accordance with United States generally accepted accounting principles or regulatory accounting principles, as applicable, consistently applied, and since June 30, 2006 2008 there has been no material adverse change in its condition or operations.
(g) The issuance and sale of the Notes is exempt from the registration requirements of the Securities Act; the Indenture is exempt from qualification under the Trust Indenture Act, and neither any the Seller nor the Issuer is required to be registered under the Investment Company Act.
(h) On the Closing Effective Date and after giving effect to the issuance of the Notes, no Event of Default, Termination Event or Servicer Termination Event has occurred and is continuing, and no event, act or omission has occurred and is continuing which, with the lapse of time, the giving of notice or both, would constitute an Event of Default, Servicer Termination Event or other Termination Event.
(i) No proceeds of any Borrowing will be used by the Issuer to acquire any security in any transaction which is subject to Section 13 or 14 of the Securities Exchange Act of 1934, as amended.
(j) The chief executive office of the Issuer is located at the Corporate Trust Office (as defined in the Trust Agreement).
(k) The Issuer is solvent and will not become insolvent after giving effect to the transactions contemplated by this Agreement and the Basic Documents. The Issuer has no Indebtedness to any Person other than pursuant to this Agreement and the other Basic Documents. The Issuer, after giving effect to the transactions contemplated by this Agreement and the other Basic Documents, will have adequate funds to conduct its business in the foreseeable future.
(l) The Issuer has filed on a timely basis all tax returns (including, without limitation, foreign, federal, state, local and otherwise) required to be filed, is not liable for taxes payable by any other Person and has paid or made adequate provisions for the payment of all taxes, assessments and other governmental charges due from the Issuer. No tax lien or similar adverse claim has been filed, and no claim is being asserted, with respect to any such tax, assessment or other governmental charge. Any taxes, fees and other governmental charges payable by the Issuer in connection with the execution and delivery of this Agreement and the other Basic Documents and the transactions contemplated hereby or thereby including the transfer of each Receivable to the Issuer have been paid or shall have been paid if and when due at or prior to the Closing Effective Date and the relevant Transfer Date, as the case may be.
(m) Each Servicer’s Certificate and Borrowing Base Confirmation is accurate in all material respects as of the date thereof.
(n) Each Receivable and other Collateral was purchased by, or contributed to, the Issuer on the relevant Transfer Date pursuant to the Sale and Servicing Agreement or on the Closing Date pursuant to the Residual Interests – Owned Transfer Documents or the Trust Agreement.
(o) All information heretofore or hereafter furnished by or on behalf of the Issuer to any Purchaser, the Administrative Agent or any Agent in connection with this Agreement or any transaction contemplated hereby is and will be true and complete in all material respects and does not and will not omit to state a material fact necessary to make the statements contained therein not misleading.
(p) The Issuer is in compliance with ERISA and has not incurred and does not expect to incur any liabilities (except for premium payments arising in the ordinary course of business) to the Pension Benefit Guaranty Corporation (or any successor thereto) under ERISA.
(q) There has been no material adverse change in the condition (financial or otherwise), business, operations, results of operations, or properties of the Issuer.
(r) The Issuer is not an “investment company” within the meaning of the Investment Company Act of 1940, as amended, or is exempt from all provisions of such Act.
(s) The Issuer has no trade names, fictitious names, assumed names or “doing business as” names.
(t) The Issuer is operated as an entity with assets and liabilities distinct from those of AmeriCredit and any other Affiliates of the Issuer, and the Issuer hereby acknowledges that the Administrative Agent, each of the Agents and each of the Purchasers are entering into the transactions contemplated by this Agreement in reliance upon the Issuer’s identity as a separate legal entity from AmeriCredit and each such Affiliate. There is not now, nor will there be at any time in the future, any agreement or understanding between AmeriCredit or any Affiliate and the Issuer (other than as expressly set forth herein) providing for the allocation or sharing of obligations to make payments or otherwise in respect of any taxes, fees, assessments or other governmental charges.
(u) The Issuer does not own or hold, directly or indirectly, any capital stock or equity security of, or any equity interest in, any Person, other than the Existing Trust Residual Interest and Residual Interests - Owned.
(v) The Sale and Servicing Agreement is the only agreement pursuant to which the Issuer purchases Receivables, and the Basic Documents delivered to the Administrative Agent represent all material agreements between AmeriCredit and the SellersSeller, on the one hand, and the Issuer, on the other. The Issuer has furnished to the Agent true, correct and complete copies of each Basic Document to which the Issuer is a party, each of which is in full force and effect. Neither the Issuer nor any Affiliate party thereto is in default of any of its obligations thereunder in any material respect. Upon the purchase of each Receivable pursuant to the Sale and Servicing Agreement, the Issuer shall be the lawful owner of, and have good title to, such Receivable and all assets relating thereto, free and clear of any Liens. The Issuer is the lawful owner of, and has good title to, the Collateral Notes, the Existing Trust Residual Interest and, until the Residual Interest Release Date, the Residual Interests – Owned free and clear of any Liens. All such assets are transferred to the Issuer without recourse to a the Seller except as described in the Purchase Agreement. The purchases of such assets by the Issuer constitute valid and true sales for consideration (and not merely a pledge of such assets for security purposes) enforceable against creditors of the SellersSeller, and no such assets shall constitute property of a the Seller.
(w) One hundred percent (100%) of the outstanding Certificates are and will be directly owned (both beneficially and of record) by at least two holders and such holders shall not include any Person other than AmeriCredit or AFC. All Certificates are and will be validly issued, and there are no options, warrants or other rights to acquire Certificates or other equity rights in the Issuer.
(x) All Receivables included in the Class A Borrowing Base as of the most recently delivered Servicer’s Certificate or Borrowing Base Confirmation are Eligible Receivables.
Appears in 1 contract
Representations and Warranties of AmeriCredit, AFC and the Issuer. AmeriCredit, AFC and the Issuer each severally, with respect to itself only, represents and warrants to the Class A C Purchasers, the Agents and the Administrative Agent that its representations and warranties (individually or as Seller or Servicer, as applicable) set forth in the Sale and Servicing Agreement, the Indenture and the other Related Documents and in the Existing Trust Note Documentation are true and correct as of the date hereof (except for representations or warranties which relate to a specific date, which shall be true and correct as of such date). AmeriCredit, AFC and the Issuer each severally, with respect to itself only, further represents and warrants to, and agrees with, each Class A C Purchaser and Agent and the Administrative Agent that, as of the date hereof and as of each Borrowing Date:
(a) It is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware as a corporation (if AmeriCredit or AFC) or a Delaware statutory trust (if the Issuer), with full power and authority under such laws to own its properties and conduct its business as such properties are presently owned and such business is presently conducted and to execute, deliver and perform its obligations under this Agreement and the Related Documents to which it is a party.
(b) It has the power and authority to execute, deliver and perform this Agreement and the Related Documents to which it is a party and all the transactions contemplated hereby and thereby and has taken all necessary action to authorize the execution, delivery and performance by it of this Agreement and such Related Documents. When executed and delivered, each of this Agreement and each such Related Document will constitute its legal, valid and binding agreement, enforceable in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, reorganization, insolvency, moratorium and other laws of general applicability relating to or affecting creditors’ rights generally. The enforceability of its obligations under such agreements is also subject to general principles of equity, regardless of whether such enforceability is considered in a proceeding in equity or at law, and indemnification sought in respect of securities laws violations may be limited by public policy.
(c) No consent, license, approval or authorization of, or registration with, any governmental authority, bureau or agency is required to be obtained in connection with its execution, delivery or performance of each of this Agreement or any Related Documents that has not been duly obtained and which is not and will not be in full force and effect on the Closing Effective Date, except such that may be required by the blue sky laws of any state and except those which the failure to obtain individually or in the aggregate, would not have a material adverse effect on it or the transactions contemplated by, or its ability to perform its obligations under, this Agreement or the Related Documents to which it is a party.
(d) The execution, delivery and performance by it of each of this Agreement and the Related Documents to which it is a party do not violate any provision of any existing law or regulation applicable to it, any order or decree of any court to which it is subject, its charter or by-laws or other formation documents or any mortgage, indenture, contract or other agreement to which it is a party or by which it or any significant portion of its properties is bound (other than violations of such laws, regulations, orders, decrees, mortgages, indentures, contracts and other agreements which do not affect the legality, validity or enforceability of any of such agreements or the Receivables or the Collateral and which, individually or in the aggregate, would not have a material adverse effect on it or the transactions contemplated by, or its ability to perform its obligations under, this Agreement or the Related Documents to which it is a party).
(e) To its knowledge, except to the extent already disclosed in writing to the Administrative Agent and the Class A C Purchasers, there is no litigation or administrative proceeding before any court, tribunal or governmental body presently pending or threatened, against it with respect to this Agreement and the Related Documents to which it is a party, the transactions contemplated hereby or thereby or the issuance of the Notes, and there is no such litigation or proceeding against it or any significant portion of its properties, in each case which would have a material adverse effect on it or the transactions contemplated by, or its ability to perform its respective obligations under, this Agreement or the Related Documents to which it is a party.
(f) It has delivered to the Administrative Agent and each Agent complete and correct copies of, in the case of AmeriCredit, its audited consolidated balance sheet as at June 30, 20062008, and the related audited consolidated statements of income, shareholders’ equity and cash flows for the fiscal year then ended, accompanied by the report thereon of PriceWaterhouseCoopersDeloitte & Touche. Such financial statements fairly present in all material respects its financial condition as at such date and the results of its operations for the period ended on such date, all in accordance with United States generally accepted accounting principles or regulatory accounting principles, as applicable, consistently applied, and since June 30, 2006 2008 there has been no material adverse change in its condition or operations.
(g) The issuance and sale of the Notes is exempt from the registration requirements of the Securities Act; the Indenture is exempt from qualification under the Trust Indenture Act, and neither any the Seller nor the Issuer is required to be registered under the Investment Company Act.
(h) On the Closing Effective Date and after giving effect to the issuance of the Notes, no Event of Default, Termination Event or Servicer Termination Event has occurred and is continuing, and no event, act or omission has occurred and is continuing which, with the lapse of time, the giving of notice or both, would constitute an Event of Default, Servicer Termination Event or other Termination Event.
(i) No proceeds of any Borrowing will be used by the Issuer to acquire any security in any transaction which is subject to Section 13 or 14 of the Securities Exchange Act of 1934, as amended.
(j) The chief executive office of the Issuer is located at the Corporate Trust Office (as defined in the Trust Agreement).
(k) The Issuer is solvent and will not become insolvent after giving effect to the transactions contemplated by this Agreement and the Basic Documents. The Issuer has no Indebtedness to any Person other than pursuant to this Agreement and the other Basic Documents. The Issuer, after giving effect to the transactions contemplated by this Agreement and the other Basic Documents, will have adequate funds to conduct its business in the foreseeable future.
(l) The Issuer has filed on a timely basis all tax returns (including, without limitation, foreign, federal, state, local and otherwise) required to be filed, is not liable for taxes payable by any other Person and has paid or made adequate provisions for the payment of all taxes, assessments and other governmental charges due from the Issuer. No tax lien or similar adverse claim has been filed, and no claim is being asserted, with respect to any such tax, assessment or other governmental charge. Any taxes, fees and other governmental charges payable by the Issuer in connection with the execution and delivery of this Agreement and the other Basic Documents and the transactions contemplated hereby or thereby including the transfer of each Receivable to the Issuer have been paid or shall have been paid if and when due at or prior to the Closing Effective Date and the relevant Transfer Date, as the case may be.
(m) Each Servicer’s Certificate and Borrowing Base Confirmation is accurate in all material respects as of the date thereof.
(n) Each Receivable and other Collateral was purchased by, or contributed to, the Issuer on the relevant Transfer Date pursuant to the Sale and Servicing Agreement or on the Closing Date pursuant to the Residual Interests – Owned Transfer Documents or the Trust Agreement.
(o) All information heretofore or hereafter furnished by or on behalf of the Issuer to any Purchaser, the Administrative Agent or any Agent in connection with this Agreement or any transaction contemplated hereby is and will be true and complete in all material respects and does not and will not omit to state a material fact necessary to make the statements contained therein not misleading.
(p) The Issuer is in compliance with ERISA and has not incurred and does not expect to incur any liabilities (except for premium payments arising in the ordinary course of business) to the Pension Benefit Guaranty Corporation (or any successor thereto) under ERISA.
(q) There has been no material adverse change in the condition (financial or otherwise), business, operations, results of operations, or properties of the Issuer.
(r) The Issuer is not an “investment company” within the meaning of the Investment Company Act of 1940, as amended, or is exempt from all provisions of such Act.
(s) The Issuer has no trade names, fictitious names, assumed names or “doing business as” names.
(t) The Issuer is operated as an entity with assets and liabilities distinct from those of AmeriCredit and any other Affiliates of the Issuer, and the Issuer hereby acknowledges that the Administrative Agent, each of the Agents and each of the Purchasers are entering into the transactions contemplated by this Agreement in reliance upon the Issuer’s identity as a separate legal entity from AmeriCredit and each such Affiliate. There is not now, nor will there be at any time in the future, any agreement or understanding between AmeriCredit or any Affiliate and the Issuer (other than as expressly set forth herein) providing for the allocation or sharing of obligations to make payments or otherwise in respect of any taxes, fees, assessments or other governmental charges.
(u) The Issuer does not own or hold, directly or indirectly, any capital stock or equity security of, or any equity interest in, any Person, other than the Existing Trust Residual Interest and Residual Interests - Owned.
(v) The Sale and Servicing Agreement is the only agreement pursuant to which the Issuer purchases Receivables, and the Basic Documents delivered to the Administrative Agent represent all material agreements between AmeriCredit and the SellersSeller, on the one hand, and the Issuer, on the other. The Issuer has furnished to the Agent true, correct and complete copies of each Basic Document to which the Issuer is a party, each of which is in full force and effect. Neither the Issuer nor any Affiliate party thereto is in default of any of its obligations thereunder in any material respect. Upon the purchase of each Receivable pursuant to the Sale and Servicing Agreement, the Issuer shall be the lawful owner of, and have good title to, such Receivable and all assets relating thereto, free and clear of any Liens. The Issuer is the lawful owner of, and has good title to, the Collateral Notes, the Existing Trust Residual Interest and, until the Residual Interest Release Date, the Residual Interests – Owned free and clear of any Liens. All such assets are transferred to the Issuer without recourse to a the Seller except as described in the Purchase Agreement. The purchases of such assets by the Issuer constitute valid and true sales for consideration (and not merely a pledge of such assets for security purposes) enforceable against creditors of the SellersSeller, and no such assets shall constitute property of a the Seller.
(w) One hundred percent (100%) of the outstanding Certificates are and will be directly owned (both beneficially and of record) by at least two holders and such holders shall not include any Person other than AmeriCredit or AFC. All Certificates are and will be validly issued, and there are no options, warrants or other rights to acquire Certificates or other equity rights in the Issuer.
(x) All Receivables included in the Class A C Borrowing Base as of the most recently delivered Servicer’s Certificate or Borrowing Base Confirmation are Eligible Receivables.
Appears in 1 contract
Representations and Warranties of AmeriCredit, AFC and the Issuer. AmeriCredit, AFC and the Issuer each severally, with respect to itself only, represents and warrants to the Class A B Purchasers, the Agents and the Administrative Agent that its representations and warranties (individually or as Seller or Servicer, as applicable) set forth in the Sale and Servicing Agreement, the Indenture and the other Related Documents are true and correct as of the date hereof (except for representations or warranties which relate to a specific date, which shall be true and correct as of such date). AmeriCredit, AFC and the Issuer each severally, with respect to itself only, further represents and warrants to, and agrees with, each Class A B Purchaser and Agent and the Administrative Agent that, as of the date hereof and as of each Borrowing Date:
(a) It is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware as a corporation (if AmeriCredit or AFC) or a Delaware statutory trust (if the Issuer), with full power and authority under such laws to own its properties and conduct its business as such properties are presently owned and such business is presently conducted and to execute, deliver and perform its obligations under this Agreement and the Related Documents to which it is a party.
(b) It has the power and authority to execute, deliver and perform this Agreement and the Related Documents to which it is a party and all the transactions contemplated hereby and thereby and has taken all necessary action to authorize the execution, delivery and performance by it of this Agreement and such Related Documents. When executed and delivered, each of this Agreement and each such Related Document will constitute its legal, valid and binding agreement, enforceable in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, reorganization, insolvency, moratorium and other laws of general applicability relating to or affecting creditors’ rights generally. The enforceability of its obligations under such agreements is also subject to general principles of equity, regardless of whether such enforceability is considered in a proceeding in equity or at law, and indemnification sought in respect of securities laws violations may be limited by public policy.
(c) No consent, license, approval or authorization of, or registration with, any governmental authority, bureau or agency is required to be obtained in connection with its execution, delivery or performance of each of this Agreement or any Related Documents that has not been duly obtained and which is not and will not be in full force and effect on the Closing Date, except such that may be required by the blue sky laws of any state and except those which the failure to obtain individually or in the aggregate, would not have a material adverse effect on it or the transactions contemplated by, or its ability to perform its obligations under, this Agreement or the Related Documents to which it is a party.
(d) The execution, delivery and performance by it of each of this Agreement and the Related Documents to which it is a party do not violate any provision of any existing law or regulation applicable to it, any order or decree of any court to which it is subject, its charter or by-laws or any mortgage, indenture, contract or other agreement to which it is a party or by which it or any significant portion of its properties is bound (other than violations of such laws, regulations, orders, decrees, mortgages, indentures, contracts and other agreements which do not affect the legality, validity or enforceability of any of such agreements or the Receivables and which, individually or in the aggregate, would not have a material adverse effect on it or the transactions contemplated by, or its ability to perform its obligations under, this Agreement or the Related Documents to which it is a party).
(e) To its knowledge, except to the extent already disclosed in writing to the Administrative Agent and the Class A B Purchasers, there is no litigation or administrative proceeding before any court, tribunal or governmental body presently pending or threatened, against it with respect to this Agreement and the Related Documents to which it is a party, the transactions contemplated hereby or thereby or the issuance of the Notes, and there is no such litigation or proceeding against it or any significant portion of its properties, in each case which would have a material adverse effect on it or the transactions contemplated by, or its ability to perform its respective obligations under, this Agreement or the Related Documents to which it is a party.
(f) It has delivered to the Administrative Agent and each Agent complete and correct copies of, in the case of AmeriCredit, its audited consolidated balance sheet as at June 30, 20062001, and the related audited consolidated statements of income, shareholders’ equity and cash flows for the fiscal year then ended, accompanied by the report thereon of PriceWaterhouseCoopers, and its unaudited consolidated balance sheet as at September 30, 2001, and the related unaudited consolidated statements of income, shareholders’ equity and cash flows for the fiscal quarter then ended. Such financial statements fairly present in all material respects its financial condition as at such date and the results of its operations for the period ended on such datedates, all in accordance with United States generally accepted accounting principles or regulatory accounting principles, as applicable, consistently applied, and since June 30, 2006 2001 there has been no material adverse change in its condition or operations.
(g) The issuance and sale of the Notes is exempt from the registration requirements of the Securities Act; the Indenture is exempt from qualification under the Trust Indenture Act, and neither any Seller nor the Issuer is required to be registered under the Investment Company Act.
(h) On the Closing Date and after giving effect to the issuance of the Notes, no Event of Default, Termination Event or Servicer Termination Event has occurred and is continuing, and no event, act or omission has occurred and is continuing which, with the lapse of time, the giving of notice or both, would constitute an Event of Default, Servicer Termination Event or other Termination Event.
(i) No proceeds of any Borrowing will be used by the Issuer to acquire any security in any transaction which is subject to Section 13 or 14 of the Securities Exchange Act of 1934, as amended.
(j) The chief executive office of the Issuer is located at the Corporate Trust Office (as defined in the Trust Agreement).
(k) The Issuer is solvent and will not become insolvent after giving effect to the transactions contemplated by this Agreement and the Basic Documents. The Issuer has no Indebtedness to any Person other than pursuant to this Agreement and the other Basic Documents. The Issuer, after giving effect to the transactions contemplated by this Agreement and the other Basic Documents, will have adequate funds to conduct its business in the foreseeable future.
(l) The Issuer has filed on a timely basis all tax returns (including, without limitation, foreign, federal, state, local and otherwise) required to be filed, is not liable for taxes payable by any other Person and has paid or made adequate provisions for the payment of all taxes, assessments and other governmental charges due from the Issuer. No tax lien or similar adverse claim has been filed, and no claim is being asserted, with respect to any such tax, assessment or other governmental charge. Any taxes, fees and other governmental charges payable by the Issuer in connection with the execution and delivery of this Agreement and the other Basic Documents and the transactions contemplated hereby or thereby including the transfer of each Receivable to the Issuer have been paid or shall have been paid if and when due at or prior to the Closing Date and the relevant Transfer Date, as the case may be.
(m) Each Servicer’s Certificate and Borrowing Base Confirmation is accurate in all material respects as of the date thereof.
(n) Each Receivable and other Collateral was purchased by, or contributed to, the Issuer on the relevant Transfer Date pursuant to the Sale and Servicing Agreement.
(o) All information heretofore or hereafter furnished by or on behalf of the Issuer to any Purchaser, the Administrative Agent or any Agent in connection with this Agreement or any transaction contemplated hereby is and will be true and complete in all material respects and does not and will not omit to state a material fact necessary to make the statements contained therein not misleading.
(p) The Issuer is in compliance with ERISA and has not incurred and does not expect to incur any liabilities (except for premium payments arising in the ordinary course of business) to the Pension Benefit Guaranty Corporation (or any successor thereto) under ERISA.
(q) There has been no material adverse change in the condition (financial or otherwise), business, operations, results of operations, or properties of the Issuer.
(r) The Issuer is not an “investment company” within the meaning of the Investment Company Act of 1940, as amended, or is exempt from all provisions of such Act.
(s) The Issuer has no trade names, fictitious names, assumed names or “doing business as” names.
(t) The Issuer is operated as an entity with assets and liabilities distinct from those of AmeriCredit and any other Affiliates of the Issuer, and the Issuer hereby acknowledges that the Administrative Agent, each of the Agents and each of the Purchasers are entering into the transactions contemplated by this Agreement in reliance upon the Issuer’s identity as a separate legal entity from AmeriCredit and each such Affiliate. There is not now, nor will there be at any time in the future, any agreement or understanding between AmeriCredit or any Affiliate and the Issuer (other than as expressly set forth herein) providing for the allocation or sharing of obligations to make payments or otherwise in respect of any taxes, fees, assessments or other governmental charges.
(u) The Issuer does not own or hold, directly or indirectly, any capital stock or equity security of, or any equity interest in, any Person.
(v) The Sale and Servicing Agreement is the only agreement pursuant to which the Issuer purchases Receivables, and the Basic Documents delivered to the Administrative Agent represent all material agreements between AmeriCredit and the Sellers, on the one hand, and the Issuer, on the other. The Issuer has furnished to the Agent true, correct and complete copies of each Basic Document to which the Issuer is a party, each of which is in full force and effect. Neither the Issuer nor any Affiliate party thereto is in default of any of its obligations thereunder in any material respect. Upon the purchase of each Receivable pursuant to the Sale and Servicing Agreement, the Issuer shall be the lawful owner of, and have good title to, such Receivable and all assets relating thereto, free and clear of any Liens. All such assets are transferred to the Issuer without recourse to a Seller except as described in the Purchase Agreement. The purchases of such assets by the Issuer constitute valid and true sales for consideration (and not merely a pledge of such assets for security purposes) enforceable against creditors of the Sellers, and no such assets shall constitute property of a Seller.
(w) One hundred percent (100%) of the outstanding Certificates are and will be directly owned (both beneficially and of record) by at least two holders and such holders shall not include any Person other than AmeriCredit or AFC. All Certificates are and will be validly issued, and there are no options, warrants or other rights to acquire Certificates or other equity rights in the Issuer.
(x) All Receivables included in the Class A B Borrowing Base as of the most recently delivered Servicer’s Certificate or Borrowing Base Confirmation are Eligible Receivables.
Appears in 1 contract
Representations and Warranties of AmeriCredit, AFC and the Issuer. AmeriCredit, AFC and the Issuer each severally, with respect to itself only, represents and warrants to the Class A C Purchasers, the Agents and the Administrative Agent that its representations and warranties (individually or as Seller or Servicer, as applicable) set forth in the Sale and Servicing Agreement, the Indenture and the other Related Documents are true and correct as of the date hereof (except for representations or warranties which relate to a specific date, which shall be true and correct as of such date). AmeriCredit, AFC and the Issuer each severally, with respect to itself only, further represents and warrants to, and agrees with, each Class A C Purchaser and Agent and the Administrative Agent that, as of the date hereof and as of each Borrowing Date:
(a) It is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware as a corporation (if AmeriCredit or AFC) or a Delaware statutory trust (if the Issuer), with full power and authority under such laws to own its properties and conduct its business as such properties are presently owned and such business is presently conducted and to execute, deliver and perform its obligations under this Agreement and the Related Documents to which it is a party.
(b) It has the power and authority to execute, deliver and perform this Agreement and the Related Documents to which it is a party and all the transactions contemplated hereby and thereby and has taken all necessary action to authorize the execution, delivery and performance by it of this Agreement and such Related Documents. When executed and delivered, each of this Agreement and each such Related Document will constitute its legal, valid and binding agreement, enforceable in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, reorganization, insolvency, moratorium and other laws of general applicability relating to or affecting creditors’ rights generally. The enforceability of its obligations under such agreements is also subject to general principles of equity, regardless of whether such enforceability is considered in a proceeding in equity or at law, and indemnification sought in respect of securities laws violations may be limited by public policy.
(c) No consent, license, approval or authorization of, or registration with, any governmental authority, bureau or agency is required to be obtained in connection with its execution, delivery or performance of each of this Agreement or any Related Documents that has not been duly obtained and which is not and will not be in full force and effect on the Closing Date, except such that may be required by the blue sky laws of any state and except those which the failure to obtain individually or in the aggregate, would not have a material adverse effect on it or the transactions contemplated by, or its ability to perform its obligations under, this Agreement or the Related Documents to which it is a party.
(d) The execution, delivery and performance by it of each of this Agreement and the Related Documents to which it is a party do not violate any provision of any existing law or regulation applicable to it, any order or decree of any court to which it is subject, its charter or by-laws or any mortgage, indenture, contract or other agreement to which it is a party or by which it or any significant portion of its properties is bound (other than violations of such laws, regulations, orders, decrees, mortgages, indentures, contracts and other agreements which do not affect the legality, validity or enforceability of any of such agreements or the Receivables and which, individually or in the aggregate, would not have a material adverse effect on it or the transactions contemplated by, or its ability to perform its obligations under, this Agreement or the Related Documents to which it is a party).
(e) To its knowledge, except to the extent already disclosed in writing to the Administrative Agent and the Class A C Purchasers, there is no litigation or administrative proceeding before any court, tribunal or governmental body presently pending or threatened, against it with respect to this Agreement and the Related Documents to which it is a party, the transactions contemplated hereby or thereby or the issuance of the Notes, and there is no such litigation or proceeding against it or any significant portion of its properties, in each case which would have a material adverse effect on it or the transactions contemplated by, or its ability to perform its respective obligations under, this Agreement or the Related Documents to which it is a party.
(f) It has delivered to the Administrative Agent and each Agent complete and correct copies of, in the case of AmeriCredit, its audited consolidated balance sheet as at June 30, 2006, and the related audited consolidated statements of income, shareholders’ equity and cash flows for the fiscal year then ended, accompanied by the report thereon of PriceWaterhouseCoopers. Such financial statements fairly present in all material respects its financial condition as at such date and the results of its operations for the period ended on such date, all in accordance with United States generally accepted accounting principles or regulatory accounting principles, as applicable, consistently applied, and since June 30, 2006 there has been no material adverse change in its condition or operations.
(g) The issuance and sale of the Notes is exempt from the registration requirements of the Securities Act; the Indenture is exempt from qualification under the Trust Indenture Act, and neither any Seller nor the Issuer is required to be registered under the Investment Company Act.
(h) On the Closing Date and after giving effect to the issuance of the Notes, no Event of Default, Termination Event or Servicer Termination Event has occurred and is continuing, and no event, act or omission has occurred and is continuing which, with the lapse of time, the giving of notice or both, would constitute an Event of Default, Servicer Termination Event or other Termination Event.
(i) No proceeds of any Borrowing will be used by the Issuer to acquire any security in any transaction which is subject to Section 13 or 14 of the Securities Exchange Act of 1934, as amended.
(j) The chief executive office of the Issuer is located at the Corporate Trust Office (as defined in the Trust Agreement).
(k) The Issuer is solvent and will not become insolvent after giving effect to the transactions contemplated by this Agreement and the Basic Documents. The Issuer has no Indebtedness to any Person other than pursuant to this Agreement and the other Basic Documents. The Issuer, after giving effect to the transactions contemplated by this Agreement and the other Basic Documents, will have adequate funds to conduct its business in the foreseeable future.
(l) The Issuer has filed on a timely basis all tax returns (including, without limitation, foreign, federal, state, local and otherwise) required to be filed, is not liable for taxes payable by any other Person and has paid or made adequate provisions for the payment of all taxes, assessments and other governmental charges due from the Issuer. No tax lien or similar adverse claim has been filed, and no claim is being asserted, with respect to any such tax, assessment or other governmental charge. Any taxes, fees and other governmental charges payable by the Issuer in connection with the execution and delivery of this Agreement and the other Basic Documents and the transactions contemplated hereby or thereby including the transfer of each Receivable to the Issuer have been paid or shall have been paid if and when due at or prior to the Closing Date and the relevant Transfer Date, as the case may be.
(m) Each Servicer’s Certificate and Borrowing Base Confirmation is accurate in all material respects as of the date thereof.
(n) Each Receivable and other Collateral was purchased by, or contributed to, the Issuer on the relevant Transfer Date pursuant to the Sale and Servicing Agreement.
(o) All information heretofore or hereafter furnished by or on behalf of the Issuer to any Purchaser, the Administrative Agent or any Agent in connection with this Agreement or any transaction contemplated hereby is and will be true and complete in all material respects and does not and will not omit to state a material fact necessary to make the statements contained therein not misleading.
(p) The Issuer is in compliance with ERISA and has not incurred and does not expect to incur any liabilities (except for premium payments arising in the ordinary course of business) to the Pension Benefit Guaranty Corporation (or any successor thereto) under ERISA.
(q) There has been no material adverse change in the condition (financial or otherwise), business, operations, results of operations, or properties of the Issuer.
(r) The Issuer is not an “investment company” within the meaning of the Investment Company Act of 1940, as amended, or is exempt from all provisions of such Act.
(s) The Issuer has no trade names, fictitious names, assumed names or “doing business as” names.
(t) The Issuer is operated as an entity with assets and liabilities distinct from those of AmeriCredit and any other Affiliates of the Issuer, and the Issuer hereby acknowledges that the Administrative Agent, each of the Agents and each of the Purchasers are entering into the transactions contemplated by this Agreement in reliance upon the Issuer’s identity as a separate legal entity from AmeriCredit and each such Affiliate. There is not now, nor will there be at any time in the future, any agreement or understanding between AmeriCredit or any Affiliate and the Issuer (other than as expressly set forth herein) providing for the allocation or sharing of obligations to make payments or otherwise in respect of any taxes, fees, assessments or other governmental charges.
(u) The Issuer does not own or hold, directly or indirectly, any capital stock or equity security of, or any equity interest in, any Person.
(v) The Sale and Servicing Agreement is the only agreement pursuant to which the Issuer purchases Receivables, and the Basic Documents delivered to the Administrative Agent represent all material agreements between AmeriCredit and the Sellers, on the one hand, and the Issuer, on the other. The Issuer has furnished to the Agent true, correct and complete copies of each Basic Document to which the Issuer is a party, each of which is in full force and effect. Neither the Issuer nor any Affiliate party thereto is in default of any of its obligations thereunder in any material respect. Upon the purchase of each Receivable pursuant to the Sale and Servicing Agreement, the Issuer shall be the lawful owner of, and have good title to, such Receivable and all assets relating thereto, free and clear of any Liens. All such assets are transferred to the Issuer without recourse to a Seller except as described in the Purchase Agreement. The purchases of such assets by the Issuer constitute valid and true sales for consideration (and not merely a pledge of such assets for security purposes) enforceable against creditors of the Sellers, and no such assets shall constitute property of a Seller.
(w) One hundred percent (100%) of the outstanding Certificates are and will be directly owned (both beneficially and of record) by at least two holders and such holders shall not include any Person other than AmeriCredit or AFC. All Certificates are and will be validly issued, and there are no options, warrants or other rights to acquire Certificates or other equity rights in the Issuer.
(x) All Receivables included in the Class A C Borrowing Base as of the most recently delivered Servicer’s Certificate or Borrowing Base Confirmation are Eligible Receivables.
Appears in 1 contract
Representations and Warranties of AmeriCredit, AFC and the Issuer. AmeriCredit, AFC and the Issuer each severally, with respect to itself only, represents and warrants to the Class A S Purchasers, the Agents and the Administrative Agent that its representations and warranties (individually or as Seller or Servicer, as applicable) set forth in the Sale and Servicing Agreement, the Indenture and the other Related Documents are true and correct as of the date hereof (except for representations or warranties which relate to a specific date, which shall be true and correct as of such date). AmeriCredit, AFC and the Issuer each severally, with respect to itself only, further represents and warrants to, and agrees with, each Class A S Purchaser and Agent and the Administrative Agent that, as of the date hereof and as of each Borrowing Date:
(a) It is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware as a corporation (if AmeriCredit or AFC) or a Delaware statutory trust (if the Issuer), with full power and authority under such laws to own its properties and conduct its business as such properties are presently owned and such business is presently conducted and to execute, deliver and perform its obligations under this Agreement and the Related Documents to which it is a party.
(b) It has the power and authority to execute, deliver and perform this Agreement and the Related Documents to which it is a party and all the transactions contemplated hereby and thereby and has taken all necessary action to authorize the execution, delivery and performance by it of this Agreement and such Related Documents. When executed and delivered, each of this Agreement and each such Related Document will constitute its legal, valid and binding agreement, enforceable in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, reorganization, insolvency, moratorium and other laws of general applicability relating to or affecting creditors’ rights generally. The enforceability of its obligations under such agreements is also subject to general principles of equity, regardless of whether such enforceability is considered in a proceeding in equity or at law, and indemnification sought in respect of securities laws violations may be limited by public policy.
(c) No consent, license, approval or authorization of, or registration with, any governmental authority, bureau or agency is required to be obtained in connection with its execution, delivery or performance of each of this Agreement or any Related Documents that has not been duly obtained and which is not and will not be in full force and effect on the Closing Date, except such that may be required by the blue sky laws of any state and except those which the failure to obtain individually or in the aggregate, would not have a material adverse effect on it or the transactions contemplated by, or its ability to perform its obligations under, this Agreement or the Related Documents to which it is a party.
(d) The execution, delivery and performance by it of each of this Agreement and the Related Documents to which it is a party do not violate any provision of any existing law or regulation applicable to it, any order or decree of any court to which it is subject, its charter or by-laws or any mortgage, indenture, contract or other agreement to which it is a party or by which it or any significant portion of its properties is bound (other than violations of such laws, regulations, orders, decrees, mortgages, indentures, contracts and other agreements which do not affect the legality, validity or enforceability of any of such agreements or the Receivables and which, individually or in the aggregate, would not have a material adverse effect on it or the transactions contemplated by, or its ability to perform its obligations under, this Agreement or the Related Documents to which it is a party).
(e) To its knowledge, except to the extent already disclosed in writing to the Administrative Agent and the Class A S Purchasers, there is no litigation or administrative proceeding before any court, tribunal or governmental body presently pending or threatened, against it with respect to this Agreement and the Related Documents to which it is a party, the transactions contemplated hereby or thereby or the issuance of the Notes, and there is no such litigation or proceeding against it or any significant portion of its properties, in each case which would have a material adverse effect on it or the transactions contemplated by, or its ability to perform its respective obligations under, this Agreement or the Related Documents to which it is a party.
(f) It has delivered to the Administrative Agent and each Agent complete and correct copies of, in the case of AmeriCredit, its audited consolidated balance sheet as at June 30, 2006, and the related audited consolidated statements of income, shareholders’ equity and cash flows for the fiscal year then ended, accompanied by the report thereon of PriceWaterhouseCoopers. Such financial statements fairly present in all material respects its financial condition as at such date and the results of its operations for the period ended on such date, all in accordance with United States generally accepted accounting principles or regulatory accounting principles, as applicable, consistently applied, and since June 30, 2006 there has been no material adverse change in its condition or operations.
(g) The issuance and sale of the Notes is exempt from the registration requirements of the Securities Act; the Indenture is exempt from qualification under the Trust Indenture Act, and neither any Seller nor the Issuer is required to be registered under the Investment Company Act.
(h) On the Closing Date and after giving effect to the issuance of the Notes, no Event of Default, Termination Event or Servicer Termination Event has occurred and is continuing, and no event, act or omission has occurred and is continuing which, with the lapse of time, the giving of notice or both, would constitute an Event of Default, Servicer Termination Event or other Termination Event.
(i) No proceeds of any Borrowing will be used by the Issuer to acquire any security in any transaction which is subject to Section 13 or 14 of the Securities Exchange Act of 1934, as amended.
(j) The chief executive office of the Issuer is located at the Corporate Trust Office (as defined in the Trust Agreement).
(k) The Issuer is solvent and will not become insolvent after giving effect to the transactions contemplated by this Agreement and the Basic Documents. The Issuer has no Indebtedness to any Person other than pursuant to this Agreement and the other Basic Documents. The Issuer, after giving effect to the transactions contemplated by this Agreement and the other Basic Documents, will have adequate funds to conduct its business in the foreseeable future.
(l) The Issuer has filed on a timely basis all tax returns (including, without limitation, foreign, federal, state, local and otherwise) required to be filed, is not liable for taxes payable by any other Person and has paid or made adequate provisions for the payment of all taxes, assessments and other governmental charges due from the Issuer. No tax lien or similar adverse claim has been filed, and no claim is being asserted, with respect to any such tax, assessment or other governmental charge. Any taxes, fees and other governmental charges payable by the Issuer in connection with the execution and delivery of this Agreement and the other Basic Documents and the transactions contemplated hereby or thereby including the transfer of each Receivable to the Issuer have been paid or shall have been paid if and when due at or prior to the Closing Date and the relevant Transfer Date, as the case may be.
(m) Each Servicer’s Certificate and Borrowing Base Confirmation is accurate in all material respects as of the date thereof.
(n) Each Receivable and other Collateral was purchased by, or contributed to, the Issuer on the relevant Transfer Date pursuant to the Sale and Servicing Agreement.
(o) All information heretofore or hereafter furnished by or on behalf of the Issuer to any Purchaser, the Administrative Agent or any Agent in connection with this Agreement or any transaction contemplated hereby is and will be true and complete in all material respects and does not and will not omit to state a material fact necessary to make the statements contained therein not misleading.
(p) The Issuer is in compliance with ERISA and has not incurred and does not expect to incur any liabilities (except for premium payments arising in the ordinary course of business) to the Pension Benefit Guaranty Corporation (or any successor thereto) under ERISA.
(q) There has been no material adverse change in the condition (financial or otherwise), business, operations, results of operations, or properties of the Issuer.
(r) The Issuer is not an “investment company” within the meaning of the Investment Company Act of 1940, as amended, or is exempt from all provisions of such Act.
(s) The Issuer has no trade names, fictitious names, assumed names or “doing business as” names.
(t) The Issuer is operated as an entity with assets and liabilities distinct from those of AmeriCredit and any other Affiliates of the Issuer, and the Issuer hereby acknowledges that the Administrative Agent, each of the Agents and each of the Purchasers are entering into the transactions contemplated by this Agreement in reliance upon the Issuer’s identity as a separate legal entity from AmeriCredit and each such Affiliate. There is not now, nor will there be at any time in the future, any agreement or understanding between AmeriCredit or any Affiliate and the Issuer (other than as expressly set forth herein) providing for the allocation or sharing of obligations to make payments or otherwise in respect of any taxes, fees, assessments or other governmental charges.
(u) The Issuer does not own or hold, directly or indirectly, any capital stock or equity security of, or any equity interest in, any Person.
(v) The Sale and Servicing Agreement is the only agreement pursuant to which the Issuer purchases Receivables, and the Basic Documents delivered to the Administrative Agent represent all material agreements between AmeriCredit and the Sellers, on the one hand, and the Issuer, on the other. The Issuer has furnished to the Agent true, correct and complete copies of each Basic Document to which the Issuer is a party, each of which is in full force and effect. Neither the Issuer nor any Affiliate party thereto is in default of any of its obligations thereunder in any material respect. Upon the purchase of each Receivable pursuant to the Sale and Servicing Agreement, the Issuer shall be the lawful owner of, and have good title to, such Receivable and all assets relating thereto, free and clear of any Liens. All such assets are transferred to the Issuer without recourse to a Seller except as described in the Purchase Agreement. The purchases of such assets by the Issuer constitute valid and true sales for consideration (and not merely a pledge of such assets for security purposes) enforceable against creditors of the Sellers, and no such assets shall constitute property of a Seller.
(w) One hundred percent (100%) of the outstanding Certificates are and will be directly owned (both beneficially and of record) by at least two holders and such holders shall not include any Person other than AmeriCredit or AFC. All Certificates are and will be validly issued, and there are no options, warrants or other rights to acquire Certificates or other equity rights in the Issuer.
(x) All Receivables included in the Class A S Borrowing Base as of the most recently delivered Servicer’s Certificate or Borrowing Base Confirmation are Eligible Receivables.
Appears in 1 contract
Representations and Warranties of AmeriCredit, AFC and the Issuer. AmeriCredit, AFC and the Issuer each severally, with respect to itself only, represents and warrants to the Class A S Purchasers, the Agents and the Administrative Agent that its representations and warranties (individually or as Seller or Servicer, as applicable) set forth in the Sale and Servicing Agreement, the Indenture and the other Related Documents are true and correct as of the date hereof (except for representations or warranties which relate to a specific date, which shall be true and correct as of such date). AmeriCredit, AFC and the Issuer each severally, with respect to itself only, further represents and warrants to, and agrees with, each Class A S Purchaser and Agent and the Administrative Agent that, as of the date hereof and as of each Borrowing Date:
(a) It is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware as a corporation (if AmeriCredit or AFC) or a Delaware statutory trust (if the Issuer), with full power and authority under such laws to own its properties and conduct its business as such properties are presently owned and such business is presently conducted and to execute, deliver and perform its obligations under this Agreement and the Related Documents to which it is a party.
(b) It has the power and authority to execute, deliver and perform this Agreement and the Related Documents to which it is a party and all the transactions contemplated hereby and thereby and has taken all necessary action to authorize the execution, delivery and performance by it of this Agreement and such Related Documents. When executed and delivered, each of this Agreement and each such Related Document will constitute its legal, valid and binding agreement, enforceable in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, reorganization, insolvency, moratorium and other laws of general applicability relating to or affecting creditors’ ' rights generally. The enforceability of its obligations under such agreements is also subject to general principles of equity, regardless of whether such enforceability is considered in a proceeding in equity or at law, and indemnification sought in respect of securities laws violations may be limited by public policy.
(c) No consent, license, approval or authorization of, or registration with, any governmental authority, bureau or agency is required to be obtained in connection with its execution, delivery or performance of each of this Agreement or any Related Documents that has not been duly obtained and which is not and will not be in full force and effect on the Closing Date, except such that may be required by the blue sky laws of any state and except those which the failure to obtain individually or in the aggregate, would not have a material adverse effect on it or the transactions contemplated by, or its ability to perform its obligations under, this Agreement or the Related Documents to which it is a party.
(d) The execution, delivery and performance by it of each of this Agreement and the Related Documents to which it is a party do not violate any provision of any existing law or regulation applicable to it, any order or decree of any court to which it is subject, its charter or by-laws or any mortgage, indenture, contract or other agreement to which it is a party or by which it or any significant portion of its properties is bound (other than violations of such laws, regulations, orders, decrees, mortgages, indentures, contracts and other agreements which do not affect the legality, validity or enforceability of any of such agreements or the Receivables and which, individually or in the aggregate, would not have a material adverse effect on it or the transactions contemplated by, or its ability to perform its obligations under, this Agreement or the Related Documents to which it is a party).
(e) To its knowledge, except to the extent already disclosed in writing to the Administrative Agent and the Class A S Purchasers, there is no litigation or administrative proceeding before any court, tribunal or governmental body presently pending or threatened, against it with respect to this Agreement and the Related Documents to which it is a party, the transactions contemplated hereby or thereby or the issuance of the Notes, and there is no such litigation or proceeding against it or any significant portion of its properties, in each case which would have a material adverse effect on it or the transactions contemplated by, or its ability to perform its respective obligations under, this Agreement or the Related Documents to which it is a party.
(f) It has delivered to the Administrative Agent and each Agent complete and correct copies of, in the case of AmeriCredit, its audited consolidated balance sheet as at June 30, 20062001, and the related audited consolidated statements of income, shareholders’ ' equity and cash flows for the fiscal year then ended, accompanied by the report thereon of PriceWaterhouseCoopers, and its unaudited consolidated balance sheet as at September 30, 2001, and the related unaudited consolidated statements of income, shareholders' equity and cash flows for the fiscal quarter then ended. Such financial statements fairly present in all material respects its financial condition as at such date and the results of its operations for the period ended on such datedates, all in accordance with United States generally accepted accounting principles or regulatory accounting principles, as applicable, consistently applied, and since June 30, 2006 2001 there has been no material adverse change in its condition or operations.
(g) The issuance and sale of the Notes is exempt from the registration requirements of the Securities Act; the Indenture is exempt from qualification under the Trust Indenture Act, and neither any Seller nor the Issuer is required to be registered under the Investment Company Act.
(h) On the Closing Date and after giving effect to the issuance of the Notes, no Event of Default, Termination Event or Servicer Termination Event has occurred and is continuing, and no event, act or omission has occurred and is continuing which, with the lapse of time, the giving of notice or both, would constitute an Event of Default, Servicer Termination Event or other Termination Event.
(i) No proceeds of any Borrowing will be used by the Issuer to acquire any security in any transaction which is subject to Section 13 or 14 of the Securities Exchange Act of 1934, as amended.
(j) The chief executive office of the Issuer is located at the Corporate Trust Office (as defined in the Trust Agreement).
(k) The Issuer is solvent and will not become insolvent after giving effect to the transactions contemplated by this Agreement and the Basic Documents. The Issuer has no Indebtedness to any Person other than pursuant to this Agreement and the other Basic Documents. The Issuer, after giving effect to the transactions contemplated by this Agreement and the other Basic Documents, will have adequate funds to conduct its business in the foreseeable future.
(l) The Issuer has filed on a timely basis all tax returns (including, without limitation, foreign, federal, state, local and otherwise) required to be filed, is not liable for taxes payable by any other Person and has paid or made adequate provisions for the payment of all taxes, assessments and other governmental charges due from the Issuer. No tax lien or similar adverse claim has been filed, and no claim is being asserted, with respect to any such tax, assessment or other governmental charge. Any taxes, fees and other governmental charges payable by the Issuer in connection with the execution and delivery of this Agreement and the other Basic Documents and the transactions contemplated hereby or thereby including the transfer of each Receivable to the Issuer have been paid or shall have been paid if and when due at or prior to the Closing Date and the relevant Transfer Date, as the case may be.
(m) Each Servicer’s 's Certificate and Borrowing Base Confirmation is accurate in all material respects as of the date thereof.
(n) Each Receivable and other Collateral was purchased by, or contributed to, the Issuer on the relevant Transfer Date pursuant to the Sale and Servicing Agreement.
(o) All information heretofore or hereafter furnished by or on behalf of the Issuer to any Purchaser, the Administrative Agent or any Agent in connection with this Agreement or any transaction contemplated hereby is and will be true and complete in all material respects and does not and will not omit to state a material fact necessary to make the statements contained therein not misleading.
(p) The Issuer is in compliance with ERISA and has not incurred and does not expect to incur any liabilities (except for premium payments arising in the ordinary course of business) to the Pension Benefit Guaranty Corporation (or any successor thereto) under ERISA.
(q) There has been no material adverse change in the condition (financial or otherwise), business, operations, results of operations, or properties of the Issuer.
(r) The Issuer is not an “"investment company” " within the meaning of the Investment Company Act of 1940, as amended, or is exempt from all provisions of such Act.
(s) The Issuer has no trade names, fictitious names, assumed names or “"doing business as” " names.
(t) The Issuer is operated as an entity with assets and liabilities distinct from those of AmeriCredit and any other Affiliates of the Issuer, and the Issuer hereby acknowledges that the Administrative Agent, each of the Agents and each of the Purchasers are entering into the transactions contemplated by this Agreement in reliance upon the Issuer’s 's identity as a separate legal entity from AmeriCredit and each such Affiliate. There is not now, nor will there be at any time in the future, any agreement or understanding between AmeriCredit or any Affiliate and the Issuer (other than as expressly set forth herein) providing for the allocation or sharing of obligations to make payments or otherwise in respect of any taxes, fees, assessments or other governmental charges.
(u) The Issuer does not own or hold, directly or indirectly, any capital stock or equity security of, or any equity interest in, any Person.
(v) The Sale and Servicing Agreement is the only agreement pursuant to which the Issuer purchases Receivables, and the Basic Documents delivered to the Administrative Agent represent all material agreements between AmeriCredit and the Sellers, on the one hand, and the Issuer, on the other. The Issuer has furnished to the Agent true, correct and complete copies of each Basic Document to which the Issuer is a party, each of which is in full force and effect. Neither the Issuer nor any Affiliate party thereto is in default of any of its obligations thereunder in any material respect. Upon the purchase of each Receivable pursuant to the Sale and Servicing Agreement, the Issuer shall be the lawful owner of, and have good title to, such Receivable and all assets relating thereto, free and clear of any Liens. All such assets are transferred to the Issuer without recourse to a Seller except as described in the Purchase Agreement. The purchases of such assets by the Issuer constitute valid and true sales for consideration (and not merely a pledge of such assets for security purposes) enforceable against creditors of the Sellers, and no such assets shall constitute property of a Seller.
(w) One hundred percent (100%) of the outstanding Certificates are and will be directly owned (both beneficially and of record) by at least two holders and such holders shall not include any Person other than AmeriCredit or AFC. All Certificates are and will be validly issued, and there are no options, warrants or other rights to acquire Certificates or other equity rights in the Issuer.
(x) All Receivables included in the Class A S Borrowing Base as of the most recently delivered Servicer’s 's Certificate or Borrowing Base Confirmation are Eligible Receivables.
Appears in 1 contract
Representations and Warranties of AmeriCredit, AFC and the Issuer. AmeriCredit, AFC and the Issuer each severally, with respect to itself only, represents and warrants to the Class A B Purchasers, the Agents and the Administrative Agent that its representations and warranties (individually or as Seller or Servicer, as applicable) set forth in the Sale and Servicing Agreement, the Indenture and the other Related Documents are true and correct as of the date hereof (except for representations or warranties which relate to a specific date, which shall be true and correct as of such date). AmeriCredit, AFC and the Issuer each severally, with respect to itself only, further represents and warrants to, and agrees with, each Class A B Purchaser and Agent and the Administrative Agent that, as of the date hereof and as of each Borrowing Date:
(a) It is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware as a corporation (if AmeriCredit or AFC) or a Delaware statutory trust (if the Issuer), with full power and authority under such laws to own its properties and conduct its business as such properties are presently owned and such business is presently conducted and to execute, deliver and perform its obligations under this Agreement and the Related Documents to which it is a party.
(b) It has the power and authority to execute, deliver and perform this Agreement and the Related Documents to which it is a party and all the transactions contemplated hereby and thereby and has taken all necessary action to authorize the execution, delivery and performance by it of this Agreement and such Related Documents. When executed and delivered, each of this Agreement and each such Related Document will constitute its legal, valid and binding agreement, enforceable in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, reorganization, insolvency, moratorium and other laws of general applicability relating to or affecting creditors’ rights generally. The enforceability of its obligations under such agreements is also subject to general principles of equity, regardless of whether such enforceability is considered in a proceeding in equity or at law, and indemnification sought in respect of securities laws violations may be limited by public policy.
(c) No consent, license, approval or authorization of, or registration with, any governmental authority, bureau or agency is required to be obtained in connection with its execution, delivery or performance of each of this Agreement or any Related Documents that has not been duly obtained and which is not and will not be in full force and effect on the Closing Date, except such that may be required by the blue sky laws of any state and except those which the failure to obtain individually or in the aggregate, would not have a material adverse effect on it or the transactions contemplated by, or its ability to perform its obligations under, this Agreement or the Related Documents to which it is a party.
(d) The execution, delivery and performance by it of each of this Agreement and the Related Documents to which it is a party do not violate any provision of any existing law or regulation applicable to it, any order or decree of any court to which it is subject, its charter or by-laws or any mortgage, indenture, contract or other agreement to which it is a party or by which it or any significant portion of its properties is bound (other than violations of such laws, regulations, orders, decrees, mortgages, indentures, contracts and other agreements which do not affect the legality, validity or enforceability of any of such agreements or the Receivables and which, individually or in the aggregate, would not have a material adverse effect on it or the transactions contemplated by, or its ability to perform its obligations under, this Agreement or the Related Documents to which it is a party).
(e) To its knowledge, except to the extent already disclosed in writing to the Administrative Agent and the Class A B Purchasers, there is no litigation or administrative proceeding before any court, tribunal or governmental body presently pending or threatened, against it with respect to this Agreement and the Related Documents to which it is a party, the transactions contemplated hereby or thereby or the issuance of the Notes, and there is no such litigation or proceeding against it or any significant portion of its properties, in each case which would have a material adverse effect on it or the transactions contemplated by, or its ability to perform its respective obligations under, this Agreement or the Related Documents to which it is a party.
(f) It has delivered to the Administrative Agent and each Agent complete and correct copies of, in the case of AmeriCredit, its audited consolidated balance sheet as at June 30, 2006, and the related audited consolidated statements of income, shareholders’ equity and cash flows for the fiscal year then ended, accompanied by the report thereon of PriceWaterhouseCoopers. Such financial statements fairly present in all material respects its financial condition as at such date and the results of its operations for the period ended on such date, all in accordance with United States generally accepted accounting principles or regulatory accounting principles, as applicable, consistently applied, and since June 30, 2006 there has been no material adverse change in its condition or operations.
(g) The issuance and sale of the Notes is exempt from the registration requirements of the Securities Act; the Indenture is exempt from qualification under the Trust Indenture Act, and neither any Seller nor the Issuer is required to be registered under the Investment Company Act.
(h) On the Closing Date and after giving effect to the issuance of the Notes, no Event of Default, Termination Event or Servicer Termination Event has occurred and is continuing, and no event, act or omission has occurred and is continuing which, with the lapse of time, the giving of notice or both, would constitute an Event of Default, Servicer Termination Event or other Termination Event.
(i) No proceeds of any Borrowing will be used by the Issuer to acquire any security in any transaction which is subject to Section 13 or 14 of the Securities Exchange Act of 1934, as amended.
(j) The chief executive office of the Issuer is located at the Corporate Trust Office (as defined in the Trust Agreement).
(k) The Issuer is solvent and will not become insolvent after giving effect to the transactions contemplated by this Agreement and the Basic Documents. The Issuer has no Indebtedness to any Person other than pursuant to this Agreement and the other Basic Documents. The Issuer, after giving effect to the transactions contemplated by this Agreement and the other Basic Documents, will have adequate funds to conduct its business in the foreseeable future.
(l) The Issuer has filed on a timely basis all tax returns (including, without limitation, foreign, federal, state, local and otherwise) required to be filed, is not liable for taxes payable by any other Person and has paid or made adequate provisions for the payment of all taxes, assessments and other governmental charges due from the Issuer. No tax lien or similar adverse claim has been filed, and no claim is being asserted, with respect to any such tax, assessment or other governmental charge. Any taxes, fees and other governmental charges payable by the Issuer in connection with the execution and delivery of this Agreement and the other Basic Documents and the transactions contemplated hereby or thereby including the transfer of each Receivable to the Issuer have been paid or shall have been paid if and when due at or prior to the Closing Date and the relevant Transfer Date, as the case may be.
(m) Each Servicer’s Certificate and Borrowing Base Confirmation is accurate in all material respects as of the date thereof.
(n) Each Receivable and other Collateral was purchased by, or contributed to, the Issuer on the relevant Transfer Date pursuant to the Sale and Servicing Agreement.
(o) All information heretofore or hereafter furnished by or on behalf of the Issuer to any Purchaser, the Administrative Agent or any Agent in connection with this Agreement or any transaction contemplated hereby is and will be true and complete in all material respects and does not and will not omit to state a material fact necessary to make the statements contained therein not misleading.
(p) The Issuer is in compliance with ERISA and has not incurred and does not expect to incur any liabilities (except for premium payments arising in the ordinary course of business) to the Pension Benefit Guaranty Corporation (or any successor thereto) under ERISA.
(q) There has been no material adverse change in the condition (financial or otherwise), business, operations, results of operations, or properties of the Issuer.
(r) The Issuer is not an “investment company” within the meaning of the Investment Company Act of 1940, as amended, or is exempt from all provisions of such Act.
(s) The Issuer has no trade names, fictitious names, assumed names or “doing business as” names.
(t) The Issuer is operated as an entity with assets and liabilities distinct from those of AmeriCredit and any other Affiliates of the Issuer, and the Issuer hereby acknowledges that the Administrative Agent, each of the Agents and each of the Purchasers are entering into the transactions contemplated by this Agreement in reliance upon the Issuer’s identity as a separate legal entity from AmeriCredit and each such Affiliate. There is not now, nor will there be at any time in the future, any agreement or understanding between AmeriCredit or any Affiliate and the Issuer (other than as expressly set forth herein) providing for the allocation or sharing of obligations to make payments or otherwise in respect of any taxes, fees, assessments or other governmental charges.
(u) The Issuer does not own or hold, directly or indirectly, any capital stock or equity security of, or any equity interest in, any Person.
(v) The Sale and Servicing Agreement is the only agreement pursuant to which the Issuer purchases Receivables, and the Basic Documents delivered to the Administrative Agent represent all material agreements between AmeriCredit and the Sellers, on the one hand, and the Issuer, on the other. The Issuer has furnished to the Agent true, correct and complete copies of each Basic Document to which the Issuer is a party, each of which is in full force and effect. Neither the Issuer nor any Affiliate party thereto is in default of any of its obligations thereunder in any material respect. Upon the purchase of each Receivable pursuant to the Sale and Servicing Agreement, the Issuer shall be the lawful owner of, and have good title to, such Receivable and all assets relating thereto, free and clear of any Liens. All such assets are transferred to the Issuer without recourse to a Seller except as described in the Purchase Agreement. The purchases of such assets by the Issuer constitute valid and true sales for consideration (and not merely a pledge of such assets for security purposes) enforceable against creditors of the Sellers, and no such assets shall constitute property of a Seller.
(w) One hundred percent (100%) of the outstanding Certificates are and will be directly owned (both beneficially and of record) by at least two holders and such holders shall not include any Person other than AmeriCredit or AFC. All Certificates are and will be validly issued, and there are no options, warrants or other rights to acquire Certificates or other equity rights in the Issuer.
(x) All Receivables included in the Class A B Borrowing Base as of the most recently delivered Servicer’s Certificate or Borrowing Base Confirmation are Eligible Receivables.
Appears in 1 contract
Representations and Warranties of AmeriCredit, AFC and the Issuer. AmeriCredit, AFC and the Issuer each severally, with respect to itself only, represents and warrants to the Class A Purchasers, the Agents and the Administrative Agent that its representations and warranties (individually or as Seller or Servicer, as applicable) set forth in the Sale and Servicing Agreement, the Indenture and the other Related Documents are true and correct as of the date hereof (except for representations or warranties which relate to a specific date, which shall be true and correct as of such date). AmeriCredit, AFC and the Issuer each severally, with respect to itself only, further represents and warrants to, and agrees with, each Class A Purchaser and Agent and the Administrative Agent that, as of the date hereof and as of each Borrowing Date:
(a) It is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware as a corporation (if AmeriCredit or AFC) or a Delaware statutory trust (if the Issuer), with full power and authority under such laws to own its properties and conduct its business as such properties are presently owned and such business is presently conducted and to execute, deliver and perform its obligations under this Agreement and the Related Documents to which it is a party.
(b) It has the power and authority to execute, deliver and perform this Agreement and the Related Documents to which it is a party and all the transactions contemplated hereby and thereby and has taken all necessary action to authorize the execution, delivery and performance by it of this Agreement and such Related Documents. When executed and delivered, each of this Agreement and each such Related Document will constitute its legal, valid and binding agreement, enforceable in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, reorganization, insolvency, moratorium and other laws of general applicability relating to or affecting creditors’ rights generally. The enforceability of its obligations under such agreements is also subject to general principles of equity, regardless of whether such enforceability is considered in a proceeding in equity or at law, and indemnification sought in respect of securities laws violations may be limited by public policy.
(c) No consent, license, approval or authorization of, or registration with, any governmental authority, bureau or agency is required to be obtained in connection with its execution, delivery or performance of each of this Agreement or any Related Documents that has not been duly obtained and which is not and will not be in full force and effect on the Closing Effective Date, except such that may be required by the blue sky laws of any state and except those which the failure to obtain individually or in the aggregate, would not have a material adverse effect on it or the transactions contemplated by, or its ability to perform its obligations under, this Agreement or the Related Documents to which it is a party.
(d) The execution, delivery and performance by it of each of this Agreement and the Related Documents to which it is a party do not violate any provision of any existing law or regulation Regulation applicable to it, any order or decree of any court to which it is subject, its charter or by-by laws or other formation documents or any mortgage, indenture, contract or other agreement to which it is a party or by which it or any significant portion of its properties is bound (other than violations of such laws, regulations, orders, decrees, mortgages, indentures, contracts and other agreements which do not affect the legality, validity or enforceability of any of such agreements or the Receivables or the Collateral and which, individually or in the aggregate, would not have a material adverse effect on it or the transactions contemplated by, or its ability to perform its obligations under, this Agreement or the Related Documents to which it is a party).
(e) To its knowledge, except to the extent already disclosed in writing to the Administrative Agent and the Class A Purchasers, there is no litigation or administrative proceeding before any court, tribunal or governmental body presently pending or threatened, against it with respect to this Agreement and the Related Documents to which it is a party, the transactions contemplated hereby or thereby or the issuance of the Notes, and there is no such litigation or proceeding against it or any significant portion of its properties, in each case which would have a material adverse effect on it or the transactions contemplated by, or its ability to perform its respective obligations under, this Agreement or the Related Documents to which it is a party.
(f) It has delivered to the Administrative Agent and each Agent complete and correct copies of, in the case of AmeriCredit, its the audited consolidated balance sheet of AmeriCredit Corp. as at June 30, 20062009, and the related audited consolidated statements of income, shareholders’ equity and cash flows for the fiscal year then ended, accompanied by the report thereon opinion of PriceWaterhouseCoopersits independent certified public accountants. Such financial statements fairly present in all material respects its the financial condition of AmeriCredit Corp. as at such date and the results of its operations for the period ended on such date, all in accordance with United States generally accepted accounting principles or regulatory accounting principles, as applicable, consistently applied, and since June 30, 2006 2009 there has been no material adverse change in its condition or operations.
(g) The issuance and sale of the Notes is exempt from the registration requirements of the Securities Act; the Indenture is exempt from qualification under the Trust Indenture Act, and neither any Seller nor the Issuer is required to be registered under the Investment Company Act.
(h) On the Closing Effective Date and after giving effect to the issuance of the Notes, no Event of Default, Termination Event or Servicer Termination Event has occurred and is continuing, and no event, act or omission has occurred and is continuing which, with the lapse of time, the giving of notice or both, would constitute an Event of Default, Servicer Termination Event or other Termination Event.
(i) No proceeds of any Borrowing will be used by the Issuer to acquire any security in any transaction which is subject to Section 13 or 14 of the Securities Exchange Act of 1934, as amended.
(j) The chief executive office of the Issuer is located at the Corporate Trust Office (as defined in the Trust Agreement).
(k) The Issuer is solvent and will not become insolvent after giving effect to the transactions contemplated by this Agreement and the Basic Documents. The Issuer has no Indebtedness to any Person other than pursuant to this Agreement and the other Basic Documents. The Issuer, after giving effect to the transactions contemplated by this Agreement and the other Basic Documents, will have adequate funds to conduct its business in the foreseeable future.
(l) The Issuer has filed on a timely basis all tax returns (including, without limitation, foreign, federal, state, local and otherwise) required to be filed, is not liable for taxes payable by any other Person and has paid or made adequate provisions for the payment of all taxes, assessments and other governmental charges due from the Issuer. No tax lien or similar adverse claim has been filed, and no claim is being asserted, with respect to any such tax, assessment or other governmental charge. Any taxes, fees and other governmental charges payable by the Issuer in connection with the execution and delivery of this Agreement and the other Basic Documents and the transactions contemplated hereby or thereby including the transfer of each Receivable to the Issuer have been paid or shall have been paid if and when due at or prior to the Closing Effective Date and the relevant Transfer Date, as the case may be.
(m) Each Servicer’s Certificate and Borrowing Base Confirmation is accurate in all material respects as of the date thereof.
(n) Each Receivable and other Collateral was purchased by, or contributed to, the Issuer on the relevant Transfer Date pursuant to the Sale and Servicing Agreement or the Trust Agreement.
(o) All information heretofore or hereafter furnished by or on behalf of the Issuer to any Purchaser, the Administrative Agent or any Agent in connection with this Agreement or any transaction contemplated hereby is and will be true and complete in all material respects and does not and will not omit to state a material fact necessary to make the statements contained therein not misleading.
(p) The Issuer is in compliance with ERISA and has not incurred and does not expect to incur any liabilities (except for premium payments arising in the ordinary course of business) to the Pension Benefit Guaranty Corporation (or any successor thereto) under ERISA.
(q) There has been no material adverse change in the condition (financial or otherwise), business, operations, results of operations, or properties the property of the Issuer.
(r) The Issuer is not an “investment company” within the meaning of the Investment Company Act of 1940, as amended, or is exempt from all provisions of such Act.
(s) The Issuer has no trade names, fictitious names, assumed names or “doing business as” names.
(t) The Issuer is operated as an entity with assets and liabilities distinct from those of AmeriCredit and any other Affiliates of the Issuer, and the Issuer hereby acknowledges that the Administrative Agent, each of the Agents and each of the Purchasers are entering into the transactions contemplated by this Agreement in reliance upon the Issuer’s identity as a separate legal entity from AmeriCredit and each such Affiliate. There is not now, nor will there be at any time in the future, any agreement or understanding between AmeriCredit or any Affiliate and the Issuer (other than as expressly set forth herein) providing for the allocation or sharing of obligations to make payments or otherwise in respect of any taxes, fees, assessments or other governmental charges.
(u) The Issuer does not own or hold, directly or indirectly, any capital stock or equity security of, or any equity interest in, any Person.
(v) The Sale and Servicing Agreement is the only agreement pursuant to which the Issuer purchases Receivables, and the Basic Documents delivered to the Administrative Agent represent all material agreements between AmeriCredit and the SellersAFC, on the one hand, and the Issuer, on the other. The Issuer has furnished to the Agent true, correct and complete copies of each Basic Document to which the Issuer is a party, each of which is in full force and effect. Neither the Issuer nor any Affiliate party thereto is in default of any of its obligations thereunder in any material respect. Upon the purchase of each Receivable pursuant to the Sale and Servicing Agreement, the Issuer shall be the lawful owner of, and have good title to, such Receivable and all assets relating thereto, free and clear of any Liens. All such assets are transferred to the Issuer without recourse to a the related Seller except as described in the Purchase Sale and Servicing Agreement. The purchases of such assets by the Issuer constitute valid and true sales for consideration (and not merely a pledge of such assets for security purposes) enforceable against creditors of the Sellersrelated Seller, and no such assets shall constitute property of a such Seller.
(w) One hundred percent (100%) of the outstanding Certificates are and will be directly owned (both beneficially and of record) by at least two holders and such holders shall not include any Person other than AmeriCredit or AFC. All Certificates are and will be validly issued, and there are no options, warrants or other rights to acquire Certificates or other equity rights in the Issuer.
(x) All Receivables included in the Class A Borrowing Base as of the most recently delivered Servicer’s Certificate or Borrowing Base Confirmation are Eligible Receivables.
Appears in 1 contract
Representations and Warranties of AmeriCredit, AFC and the Issuer. AmeriCredit, AFC and the Issuer each severally, with respect to itself only, represents and warrants to the Class A Purchasers, the Agents and the Administrative Agent that its representations and warranties (individually or as Seller or Servicer, as applicable) set forth in the Sale and Servicing Agreement, the Indenture and the other Related Documents are true and correct as of the date hereof (except for representations or warranties which relate to a specific date, which shall be true and correct as of such date). AmeriCredit, AFC and the Issuer each severally, with respect to itself only, further represents and warrants to, and agrees with, each Class A Purchaser and Agent and the Administrative Agent that, as of the date hereof and as of each Borrowing Date:
(a) It is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware as a corporation (if AmeriCredit or AFC) or a Delaware statutory trust (if the Issuer), with full power and authority under such laws to own its properties and conduct its business as such properties are presently owned and such business is presently conducted and to execute, deliver and perform its obligations under this Agreement and the Related Documents to which it is a party.
(b) It has the power and authority to execute, deliver and perform this Agreement and the Related Documents to which it is a party and all the transactions contemplated hereby and thereby and has taken all necessary action to authorize the execution, delivery and performance by it of this Agreement and such Related Documents. When executed and delivered, each of this Agreement and each such Related Document will constitute its legal, valid and binding agreement, enforceable in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, reorganization, insolvency, moratorium and other laws of general applicability relating to or affecting creditors’ rights generally. The enforceability of its obligations under such agreements is also subject to general principles of equity, regardless of whether such enforceability is considered in a proceeding in equity or at law, and indemnification sought in respect of securities laws violations may be limited by public policy.
(c) No consent, license, approval or authorization of, or registration with, any governmental authority, bureau or agency is required to be obtained in connection with its execution, delivery or performance of each of this Agreement or any Related Documents that has not been duly obtained and which is not and will not be in full force and effect on the Closing Date, except such that may be required by the blue sky laws of any state and except those which the failure to obtain individually or in the aggregate, would not have a material adverse effect on it or the transactions contemplated by, or its ability to perform its obligations under, this Agreement or the Related Documents to which it is a party.
(d) The execution, delivery and performance by it of each of this Agreement and the Related Documents to which it is a party do not violate any provision of any existing law or regulation applicable to it, any order or decree of any court to which it is subject, its charter or by-laws or any mortgage, indenture, contract or other agreement to which it is a party or by which it or any significant portion of its properties is bound (other than violations of such laws, regulations, orders, decrees, mortgages, indentures, contracts and other agreements which do not affect the legality, validity or enforceability of any of such agreements or the Receivables and which, individually or in the aggregate, would not have a material adverse effect on it or the transactions contemplated by, or its ability to perform its obligations under, this Agreement or the Related Documents to which it is a party).
(e) To its knowledge, except to the extent already disclosed in writing to the Administrative Agent and the Class A Purchasers, there is no litigation or administrative proceeding before any court, tribunal or governmental body presently pending or threatened, against it with respect to this Agreement and the Related Documents to which it is a party, the transactions contemplated hereby or thereby or the issuance of the Notes, and there is no such litigation or proceeding against it or any significant portion of its properties, in each case which would have a material adverse effect on it or the transactions contemplated by, or its ability to perform its respective obligations under, this Agreement or the Related Documents to which it is a party.
(f) It has delivered to the Administrative Agent and each Agent complete and correct copies of, in the case of AmeriCredit, its audited consolidated balance sheet as at June 30, 20062007, and the related audited consolidated statements of income, shareholders’ equity and cash flows for the fiscal year then ended, accompanied by the report thereon of PriceWaterhouseCoopersDeloitte & Touche USA LLP. Such financial statements fairly present in all material respects its financial condition as at such date and the results of its operations for the period ended on such date, all in accordance with United States generally accepted accounting principles or regulatory accounting principles, as applicable, consistently applied, and since June 30, 2006 2007 there has been no material adverse change in its condition or operations.
(g) The issuance and sale of the Notes is exempt from the registration requirements of the Securities Act; the Indenture is exempt from qualification under the Trust Indenture Act, and neither any Seller nor the Issuer is required to be registered under the Investment Company Act.
(h) On the Closing Date and after giving effect to the issuance of the Notes, no Event of Default, Termination Event or Servicer Termination Event has occurred and is continuing, and no event, act or omission has occurred and is continuing which, with the lapse of time, the giving of notice or both, would constitute an Event of Default, Servicer Termination Event or other Termination Event.
(i) No proceeds of any Borrowing will be used by the Issuer to acquire any security in any transaction which is subject to Section 13 or 14 of the Securities Exchange Act of 1934, as amended.
(j) The chief executive office of the Issuer is located at the Corporate Trust Office (as defined in the Trust Agreement).
(k) The Issuer is solvent and will not become insolvent after giving effect to the transactions contemplated by this Agreement and the Basic Documents. The Issuer has no Indebtedness to any Person other than pursuant to this Agreement and the other Basic Documents. The Issuer, after giving effect to the transactions contemplated by this Agreement and the other Basic Documents, will have adequate funds to conduct its business in the foreseeable future.
(l) The Issuer has filed on a timely basis all tax returns (including, without limitation, foreign, federal, state, local and otherwise) required to be filed, is not liable for taxes payable by any other Person and has paid or made adequate provisions for the payment of all taxes, assessments and other governmental charges due from the Issuer. No tax lien or similar adverse claim has been filed, and no claim is being asserted, with respect to any such tax, assessment or other governmental charge. Any taxes, fees and other governmental charges payable by the Issuer in connection with the execution and delivery of this Agreement and the other Basic Documents and the transactions contemplated hereby or thereby including the transfer of each Receivable to the Issuer have been paid or shall have been paid if and when due at or prior to the Closing Date and the relevant Transfer Date, as the case may be.
(m) Each Servicer’s Certificate and Borrowing Base Confirmation Notice is accurate in all material respects as of the date thereof.
(n) Each Receivable and other Collateral was purchased by, or contributed to, the Issuer on the relevant Transfer Date pursuant to the Sale and Servicing Agreement.
(o) All information heretofore or hereafter furnished by or on behalf of the Issuer to any Purchaser, the Administrative Agent or any Agent in connection with this Agreement or any transaction contemplated hereby is and will be true and complete in all material respects and does not and will not omit to state a material fact necessary to make the statements contained therein not misleading.
(p) The Issuer is in compliance with ERISA and has not incurred and does not expect to incur any liabilities (except for premium payments arising in the ordinary course of business) to the Pension Benefit Guaranty Corporation (or any successor thereto) under ERISA.
(q) There has been no material adverse change in the condition (financial or otherwise), business, operations, results of operations, or properties of the Issuer.
(r) The Issuer is not an “investment company” within the meaning of the Investment Company Act of 1940, as amended, or is exempt from all provisions of such Act.
(s) The Issuer has no trade names, fictitious names, assumed names or “doing business as” names.
(t) The Issuer is operated as an entity with assets and liabilities distinct from those of AmeriCredit and any other Affiliates of the Issuer, and the Issuer hereby acknowledges that the Administrative Agent, each of the Agents and each of the Purchasers are entering into the transactions contemplated by this Agreement in reliance upon the Issuer’s identity as a separate legal entity from AmeriCredit and each such Affiliate. There is not now, nor will there be at any time in the future, any agreement or understanding between AmeriCredit or any Affiliate and the Issuer (other than as expressly set forth herein) providing for the allocation or sharing of obligations to make payments or otherwise in respect of any taxes, fees, assessments or other governmental charges.
(u) The Issuer does not own or hold, directly or indirectly, any capital stock or equity security of, or any equity interest in, any Person.
(v) The Sale and Servicing Agreement is the only agreement pursuant to which the Issuer purchases Receivables, and the Basic Documents delivered to the Administrative Agent represent all material agreements between AmeriCredit and the Sellers, on the one hand, and the Issuer, on the other. The Issuer has furnished to the Agent true, correct and complete copies of each Basic Document to which the Issuer is a party, each of which is in full force and effect. Neither the Issuer nor any Affiliate party thereto is in default of any of its obligations thereunder in any material respect. Upon the purchase of each Receivable pursuant to the Sale and Servicing Agreement, the Issuer shall be the lawful owner of, and have good title to, such Receivable and all assets relating thereto, free and clear of any Liens. All such assets are transferred to the Issuer without recourse to a Seller except as described in the Purchase Agreement. The purchases of such assets by the Issuer constitute valid and true sales for consideration (and not merely a pledge of such assets for security purposes) enforceable against creditors of the Sellers, and no such assets shall constitute property of a Seller.
(w) One hundred percent (100%) of the outstanding Certificates are and will be directly owned (both beneficially and of record) by at least two holders and such holders shall not include any Person other than AmeriCredit or AFC. All Certificates are and will be validly issued, and there are no options, warrants or other rights to acquire Certificates or other equity rights in the Issuer.
(x) All Receivables included in the Class A calculation of Borrowing Base Default as of the most recently delivered Servicer’s Certificate or Borrowing Base Confirmation Notice are Eligible Receivables.
Appears in 1 contract
