EXHIBIT 10.1
PURCHASE AGREEMENT
between
AFS FUNDING CORP.
Purchaser
and
AMERICREDIT FINANCIAL SERVICES, INC.
Seller
dated as of
November 1, 1996
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS............................................................... 1
SECTION 1.1 General...................................................... 1
SECTION 1.2 Specific Terms............................................... 1
SECTION 1.3 Usage of Terms............................................... 3
SECTION 1.4 Certain References........................................... 3
SECTION 1.5 No Recourse.................................................. 4
SECTION 1.6 Action by or Consent of Noteholders
and Certificateholders....................................... 4
SECTION 1.7 Material Adverse Effect...................................... 4
ARTICLE II
CONVEYANCE OF THE RECEIVABLES
AND THE OTHER CONVEYED PROPERTY.............................. 4
SECTION 2.1 (a) Conveyance of the Initial
Receivables and the Initial Other
Conveyed Property............................................ 4
(b) Purchase Price.......................................... 5
SECTION 2.2 (a) Conveyance of the Subsequent
Receivables and the Subsequent
Other Conveyed Property...................................... 5
(b) Purchase Price.......................................... 5
ARTICLE III
REPRESENTATIONS AND WARRANTIES............................... 5
SECTION 3.1 Representations and Warranties of Seller..................... 5
SECTION 3.2 Representations and Warranties of Purchaser.................. 7
ARTICLE IV
COVENANTS OF SELLER.......................................... 9
SECTION 4.1 Protection of Title of Purchaser............................. 9
SECTION 4.2 Other Liens or Interests..................................... 11
SECTION 4.3 Costs and Expenses........................................... 11
SECTION 4.4 Indemnification.............................................. 11
ARTICLE V
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REPURCHASES.................................................. 14
SECTION 5.1 Repurchase of Receivables Upon
Breach of Warranty........................................... 14
SECTION 5.2 Reassignment of Purchased Receivables........................ 15
SECTION 5.3 Waivers...................................................... 15
ARTICLE VI
MISCELLANEOUS................................................ 15
SECTION 6.1 Liability of Seller.......................................... 15
SECTION 6.2 Merger or Consolidation of Seller or Purchaser............... 15
SECTION 6.3 Limitation on Liability of Seller and Others................. 16
SECTION 6.4 Seller May Own Notes or Certificates......................... 16
SECTION 6.5 Amendment.................................................... 16
SECTION 6.6 Notices...................................................... 17
SECTION 6.7 Merger and Integration....................................... 18
SECTION 6.8 Severability of Provisions................................... 18
SECTION 6.9 Intention of the Parties..................................... 18
SECTION 6.10 Governing Law................................................ 18
SECTION 6.11 Counterparts................................................. 18
SECTION 6.12 Conveyance of the Receivables
and the Other Conveyed Property
to the Issuer................................................ 19
SECTION 6.13 Nonpetition Covenant......................................... 19
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PURCHASE AGREEMENT
THIS PURCHASE AGREEMENT, dated as of November 1, 1996, executed
between AFS Funding Corp., a Nevada corporation, as purchaser ("Purchaser"), and
AmeriCredit Financial Services, Inc., a Delaware corporation, as seller
("Seller").
W I T N E S S E T H :
WHEREAS, Purchaser has agreed to purchase from Seller, and Seller,
pursuant to this Agreement, is transferring to Purchaser the Initial Receivables
and Other Conveyed Property and with respect to the Subsequent Receivables will
transfer on the related Subsequent Transfer Date the Subsequent Receivables and
the Subsequent Other Conveyed Property.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements hereinafter contained, and for other good and valuable consideration,
the receipt of which is acknowledged, Purchaser and Seller, intending to be
legally bound, hereby agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1 General. The specific terms defined in this Article
include the plural as well as the singular. The words "herein", "hereof" and
"hereunder" and other words of similar import refer to this Agreement as a whole
and not to any particular Article, Section or other subdivision, and Article,
Section, Schedule and Exhibit references, unless otherwise specified, refer to
Articles and Sections of and Schedules and Exhibits to this Agreement.
Capitalized terms used herein without definition shall have the respective
meanings assigned to such terms in the Sale and Servicing Agreement dated as of
November 1, 1996, by and among AFS Funding Corp. (as Seller), AmeriCredit
Financial Services, Inc. (in its individual capacity and as Servicer),
AmeriCredit Automobile Receivables Trust 1996-D (as Issuer) and LaSalle National
Bank, as Backup Servicer and Trust Collateral Agent.
SECTION 1.2 Specific Terms. Whenever used in this Agreement, the
following words and phrases, unless the context otherwise requires, shall have
the following meanings:
"Agreement" shall mean this Purchase Agreement and all amendments
hereof and supplements hereto.
"Closing Date" means November 21, 1996.
"Initial Other Conveyed Property" means all property conveyed by the
Seller to the Purchaser pursuant to this Agreement other than the Initial
Receivables.
"Initial Receivables" means the Receivables listed on the Schedule
of Receivables attached hereto.
"Issuer" means AmeriCredit Automobile Receivables Trust 1996-D.
"Other Conveyed Property" means all property conveyed by the
Purchaser to the Trust pursuant to Sections 2.1(b),(c),(d),(e),(f) and (h) of
the Sale and Servicing Agreement.
"Owner Trustee" means Bankers Trust (Delaware), as Owner Trustee
appointed and acting pursuant to the Trust Agreement.
"Receivables" means the Initial Receivables and the Subsequent
Receivables.
"Related Documents" means with respect to the Subsequent
Receivables, the Subsequent Purchase Agreement, the Notes, the Certificates, the
Custodian Agreement, the Sale and Servicing Agreement, the Indenture, the Trust
Agreement, the Policies, the Spread Account Agreement, the Spread Account
Agreement Supplement, the Insurance Agreement, the Lockbox Agreement and the
Underwriting Agreement. The Related Documents to be executed by any party are
referred to herein as "such party's Related Documents," "its Related Documents"
or by a similar expression.
"Repurchase Event" means the occurrence of a breach of any of
Seller's representations and warranties hereunder or any other event which
requires the repurchase of a Receivable by Seller under the Sale and Servicing
Agreement.
"Sale and Servicing Agreement" means the Sale and Servicing
Agreement referred to in Section 1.1 hereof.
"Schedule of Receivables" means the schedule of Initial Receivables
sold and transferred pursuant to this Agreement which is attached hereto as
Schedule A.
"Schedule of Representations" means the Schedule of Representations
and Warranties attached hereto as Schedule B.
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"Subsequent Cutoff Date" means (i) the last day of the month
preceding the month in which particular Subsequent Receivables are conveyed to
the Purchaser pursuant to this Agreement or (ii) if any such Subsequent
Receivable is originated in the month of the related Subsequent Transfer Date,
the date of origination.
"Subsequent Other Conveyed Property" means all property conveyed by
the Seller to the Purchaser pursuant to the Subsequent Purchase Agreement other
than the Subsequent Receivables.
"Subsequent Purchase Agreement" means an agreement by and between
the Seller and the Purchaser pursuant to which the Purchaser will acquire
Subsequent Receivables.
"Subsequent Receivables" means the Receivables transferred to the
Purchaser pursuant to Section 2.2, which shall be listed on Schedule A to the
related Subsequent Purchase Agreement.
"Subsequent Transfer Date" means, with respect to Subsequent
Receivables, any date, occurring not more frequently than once a month, during
the Funding Period on which Subsequent Receivables are to be transferred to the
Purchaser pursuant to this Agreement, and a Subsequent Purchase Agreement is
executed and delivered.
"Trust Collateral Agent" means LaSalle National Bank, as trust
collateral agent and any successor trust collateral agent appointed and acting
pursuant to the Sale and Servicing Agreement.
"Trustee" means LaSalle National Bank, as trustee and any successor
Trustee appointed and acting pursuant to the Indenture.
SECTION 1.3 Usage of Terms. With respect to all terms used in this
Agreement, the singular includes the plural and the plural the singular; words
importing any gender include the other gender; references to "writing" include
printing, typing, lithography, and other means of reproducing words in a visible
form; references to agreements and other contractual instruments include all
subsequent amendments thereto or changes therein entered into in accordance with
their respective terms and not prohibited by this Agreement or the Sale and
Servicing Agreement; references to Persons include their permitted successors
and assigns; and the terms "include" or "including" mean "include without
limitation" or "including without limitation."
SECTION 1.4 Certain References. All references to the Principal
Balance of a Receivable as of an Accounting Date shall refer to the close of
business on such day, or as of the first day of a Monthly Period shall refer to
the
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opening of business on such day. All references to the last day of a Monthly
Period shall refer to the close of business on such day.
SECTION 1.5 No Recourse. Without limiting the obligations of Seller
hereunder, no recourse may be taken, directly or indirectly, under this
Agreement or any certificate or other writing delivered in connection herewith
or therewith, against any stockholder, officer or director, as such, of Seller,
or of any predecessor or successor of Seller.
SECTION 1.6 Action by or Consent of Noteholders and
Certificateholders. Whenever any provision of this Agreement refers to action to
be taken, or consented to, by Noteholders or Certificateholders, such provision
shall be deemed to refer to the Certificateholder or Noteholder, as the case may
be, of record as of the Record Date immediately preceding the date on which such
action is to be taken, or consent given, by Noteholders or Certificateholders.
Solely for the purposes of any action to be taken, or consented to, by
Noteholders or Certificateholders, any Note or Certificate registered in the
name of the Seller or any Affiliate thereof shall be deemed not to be
outstanding; provided, however, that, solely for the purpose of determining
whether the Trustee or the Trust Collateral Agent is entitled to rely upon any
such action or consent, only Notes or Certificates which the Owner Trustee, the
Trustee or the Trust Collateral Agent, respectively, knows to be so owned shall
be so disregarded.
SECTION 1.7 Material Adverse Effect. Whenever a determination is to
be made under this Agreement as to whether a given event, action, course of
conduct or set of facts or circumstances could or would have a material adverse
effect on the Certificateholders (or any similar or analogous determination),
such determination shall be made without taking into account the funds available
from claims under the Policy.
ARTICLE II
CONVEYANCE OF THE RECEIVABLES
AND THE OTHER CONVEYED PROPERTY
SECTION 2.1 (a) Conveyance of the Initial Receivables and the
Initial Other Conveyed Property. Subject to the terms and conditions of this
Agreement, Seller hereby sells, transfers, assigns, and otherwise conveys to
Purchaser without recourse (but without limitation of its obligations in this
Agreement), and Purchaser hereby purchases, all right, title and interest of
Seller in and to the Initial Receivables and the Initial Other Conveyed
Property. It is the intention of Seller and Purchaser that the transfer and
assignment contemplated by this Agreement shall constitute a sale of the Initial
Receivables and the Initial Other Conveyed Property from Seller to Purchaser,
conveying good title thereto
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free and clear of any liens, and the beneficial interest in and title to the
Initial Receivables and the Initial Other Conveyed Property shall not be part of
Seller's estate in the event of the filing of a bankruptcy petition by or
against Seller under any bankruptcy or similar law.
(b) Purchase Price. Simultaneously with the conveyance of the
Initial Receivables and the Initial Other Conveyed Property to Purchaser,
Purchaser has paid or caused to be paid to or upon the order of Seller an amount
equal to the book value of the Initial Receivables on the books and records of
the Seller, by wire transfer of immediately available funds.
SECTION 2.2 (a) Conveyance of the Subsequent Receivables and the
Subsequent Other Conveyed Property. On each Subsequent Transfer Date and
simultaneously with the execution and delivery of the related Subsequent
Purchase Agreement, the Seller shall sell, transfer, assign, and otherwise
convey to Purchaser without recourse (but without limitation of its obligations
in this Agreement), and Purchaser shall purchase, all right, title and interest
of Seller in and to the Subsequent Receivables and the Subsequent Other Conveyed
Property. It is the intention of Seller and Purchaser that the transfer and
assignment contemplated by such Agreement shall constitute a sale of the
Subsequent Receivables and the Subsequent Other Conveyed Property from Seller to
Purchaser, conveying good title thereto free and clear of any liens, and the
beneficial interest in and title to the Subsequent Receivables and the
Subsequent Other Conveyed Property shall not be part of Seller's estate in the
event of the filing of a bankruptcy petition by or against Seller under any
bankruptcy or similar law.
(b) Purchase Price. Simultaneously with the conveyance of the
Subsequent Receivables and the Subsequent Other Conveyed Property to Purchaser,
Purchaser shall pay or cause to be paid to or upon the order of Seller an amount
equal to the book value of the Subsequent Receivables on the books and records
of the Seller, by wire transfer of immediately available funds.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.1 Representations and Warranties of Seller. Seller makes
the following representations and warranties as of the date hereof and as of the
Subsequent Transfer Date, as the case may be, on which Purchaser relies in
purchasing the Receivables and the Other Conveyed Property and in transferring
the Receivables and the Other Conveyed Property to the Issuer under the Sale and
Servicing Agreement and on which the Security Insurer will rely in issuing the
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Policies. Such representations are made as of the execution and delivery of this
Agreement and as of the execution and delivery of any Subsequent Purchase
Agreement, but shall survive the sale, transfer and assignment of the
Receivables and the Other Conveyed Property hereunder and under any Subsequent
Purchase Agreement, and the sale, transfer and assignment thereof by Purchaser
to the Issuer under the Sale and Servicing Agreement. Seller and Purchaser agree
that Purchaser will assign to Issuer all Purchaser's rights under this Agreement
and that the Trustee will thereafter be entitled to enforce this Agreement
against Seller in the Trustee's own name on behalf of the Securityholders.
(a) Schedule of Representations. The representations and warranties
set forth on the Schedule of Representations with respect to the Initial
Receivables as of the date hereof, and with respect to the Subsequent
Receivables as of the related Subsequent Transfer Date, are true and
correct.
(b) Organization and Good Standing. Seller has been duly organized
and is validly existing as a corporation in good standing under the laws
of the State of Delaware, with power and authority to own its properties
and to conduct its business as such properties are currently owned and
such business is currently conducted, and had at all relevant times, and
now has, power, authority and legal right to acquire, own and sell the
Receivables and the Other Conveyed Property to be transferred to
Purchaser.
(c) Due Qualification. Seller is duly qualified to do business as a
foreign corporation in good standing, and has obtained all necessary
licenses and approvals in all jurisdictions in which the ownership or
lease of its property or the conduct of its business requires such
qualification.
(d) Power and Authority. Seller has the power and authority to
execute and deliver this Agreement and its Related Documents and to carry
out its terms and their terms, respectively; Seller has full power and
authority to sell and assign the Receivables and the Other Conveyed
Property to be sold and assigned to and deposited with Purchaser hereunder
and has duly authorized such sale and assignment to Purchaser by all
necessary corporate action; and the execution, delivery and performance of
this Agreement and Seller's Related Documents have been duly authorized by
Seller by all necessary corporate action.
(e) Valid Sale; Binding Obligations. This Agreement and Seller's
Related Documents have been duly executed and delivered, shall effect a
valid sale, transfer and assignment of the Receivables and the Other
Conveyed Property to the Purchaser, enforceable against Seller and
creditors of and purchasers from Seller; and this Agreement and Seller's
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Related Documents constitute legal, valid and binding obligations of
Seller enforceable in accordance with their respective terms, except as
enforceability may be limited by bankruptcy, insolvency, reorganization or
other similar laws affecting the enforcement of creditors' rights
generally and by equitable limitations on the availability of specific
remedies, regardless of whether such enforceability is considered in a
proceeding in equity or at law.
(f) No Violation. The consummation of the transactions contemplated
by this Agreement and the Related Documents and the fulfillment of the
terms of this Agreement and the Related Documents shall not conflict with,
result in any breach of any of the terms and provisions of or constitute
(with or without notice, lapse of time or both) a default under, the
articles of incorporation or bylaws of Seller, or any indenture,
agreement, mortgage, deed of trust or other instrument to which Seller is
a party or by which it is bound, or result in the creation or imposition
of any Lien upon any of its properties pursuant to the terms of any such
indenture, agreement, mortgage, deed of trust or other instrument, other
than this Agreement, the Spread Account Agreement, the Sale and Servicing
Agreement and the Indenture, or violate any law, order, rule or regulation
applicable to Seller of any court or of any federal or state regulatory
body, administrative agency or other governmental instrumentality having
jurisdiction over Seller or any of its properties.
(g) No Proceedings. There are no proceedings or investigations
pending or, to Seller's knowledge, threatened against Seller, before any
court, regulatory body, administrative agency or other tribunal or
governmental instrumentality having jurisdiction over Seller or its
properties (i) asserting the invalidity of this Agreement or any of the
Related Documents, (ii) seeking to prevent the issuance of the
Certificates or the consummation of any of the transactions contemplated
by this Agreement or any of the Related Documents, (iii) seeking any
determination or ruling that might materially and adversely affect the
performance by Seller of its obligations under, or the validity or
enforceability of, this Agreement or any of the Related Documents or (iv)
seeking to affect adversely the federal income tax or other federal, state
or local tax attributes of, or seeking to impose any excise, franchise,
transfer or similar tax upon, the transfer and acquisition of the
Receivables and the Other Conveyed Property hereunder or under the Sale
and Servicing Agreement.
(h) Chief Executive Office. The chief executive office of Seller is
located at 000 Xxxxxx Xxxxxx, Xxxx Xxxxx, Xxxxx 00000-0000.
SECTION 3.2 Representations and Warranties of Purchaser. Purchaser
makes the following representations and warranties, on which Seller
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relies in selling, assigning, transferring and conveying the Receivables and the
Other Conveyed Property to Purchaser hereunder. Such representations are made as
of the execution and delivery of this Agreement, but shall survive the sale,
transfer and assignment of the Receivables and the Other Conveyed Property
hereunder and the sale, transfer and assignment thereof by Purchaser to the
Issuer under the Sale and Servicing Agreement.
(a) Organization and Good Standing. Purchaser has been duly
organized and is validly existing and in good standing as a corporation
under the laws of the State of Nevada, with the power and authority to own
its properties and to conduct its business as such properties are
currently owned and such business is currently conducted, and had at all
relevant times, and has, full power, authority and legal right to acquire
and own the Receivables and the Other Conveyed Property, and to transfer
the Receivables and the Other Conveyed Property to the Issuer pursuant to
the Sale and Servicing Agreement.
(b) Due Qualification. Purchaser is duly qualified to do business as
a foreign corporation in good standing, and has obtained all necessary
licenses and approvals in all jurisdictions where the failure to do so
would materially and adversely affect Purchaser's ability to acquire the
Receivables or the Other Conveyed Property, and to transfer the
Receivables and the Other Conveyed Property to the Issuer pursuant to the
Sale and Servicing Agreement, or the validity or enforceability of the
Receivables and the Other Conveyed Property or to perform Purchaser's
obligations hereunder and under the Purchaser's Related Documents.
(c) Power and Authority. Purchaser has the power, authority and
legal right to execute and deliver this Agreement and to carry out the
terms hereof and to acquire the Receivables and the Other Conveyed
Property hereunder; and the execution, delivery and performance of this
Agreement and all of the documents required pursuant hereto have been duly
authorized by Purchaser by all necessary action.
(d) No Consent Required. Purchaser is not required to obtain the
consent of any other Person, or any consent, license, approval or
authorization or registration or declaration with, any governmental
authority, bureau or agency in connection with the execution, delivery or
performance of this Agreement and the Related Documents, except for such
as have been obtained, effected or made.
(e) Binding Obligation. This Agreement constitutes a legal, valid
and binding obligation of Purchaser, enforceable against Purchaser in
accordance with its terms, subject, as to enforceability, to applicable
8
bankruptcy, insolvency, reorganization, conservatorship, receivership,
liquidation and other similar laws and to general equitable principles.
(f) No Violation. The execution, delivery and performance by
Purchaser of this Agreement, the consummation of the transactions
contemplated by this Agreement and the Related Documents and the
fulfillment of the terms of this Agreement and the Related Documents do
not and will not conflict with, result in any breach of any of the terms
and provisions of, or constitute (with or without notice or lapse of time)
a default under, the certificate of incorporation or bylaws of Purchaser,
or conflict with or breach any of the terms or provisions of, or
constitute (with or without notice or lapse of time) a default under, any
indenture, agreement, mortgage, deed of trust or other instrument to which
Purchaser is a party or by which Purchaser is bound or to which any of its
properties are subject, or result in the creation or imposition of any
Lien upon any of its properties pursuant to the terms of any such
indenture, agreement, mortgage, deed of trust or other instrument (other
than the Sale and Servicing Agreement and the Spread Account Agreement),
or violate any law, order, rule or regulation, applicable to Purchaser or
its properties, of any federal or state regulatory body, any court,
administrative agency, or other governmental instrumentality having
jurisdiction over Purchaser or any of its properties.
(g) No Proceedings. There are no proceedings or investigations
pending, or, to the knowledge of Purchaser, threatened against Purchaser,
before any court, regulatory body, administrative agency, or other
tribunal or governmental instrumentality having jurisdiction over
Purchaser or its properties: (i) asserting the invalidity of this
Agreement or any of the Related Documents, (ii) seeking to prevent the
consummation of any of the transactions contemplated by this Agreement or
any of the Related Documents, (iii) seeking any determination or ruling
that might materially and adversely affect the performance by Purchaser of
its obligations under, or the validity or enforceability of, this
Agreement or any of the Related Documents or (iv) that may adversely
affect the federal or state income tax attributes of, or seeking to impose
any excise, franchise, transfer or similar tax upon, the transfer and
acquisition of the Receivables and the Other Conveyed Property hereunder
or the transfer of the Receivables and the Other Conveyed Property to the
Issuer pursuant to the Sale and Servicing Agreement.
In the event of any breach of a representation and warranty made by
Purchaser hereunder, Seller covenants and agrees that it will not take any
action to pursue any remedy that it may have hereunder, in law, in equity or
otherwise, until a year and a day have passed since the date on which all Notes,
Certificates, pass-through certificates or other similar securities issued by
Purchaser, or a trust
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or similar vehicle formed by Purchaser, have been paid in full. Seller and
Purchaser agree that damages will not be an adequate remedy for such breach and
that this covenant may be specifically enforced by Purchaser, Issuer or by the
Trustee on behalf of the Noteholders and Owner Trustee on behalf of the
Certificateholders.
ARTICLE IV
COVENANTS OF SELLER
SECTION 4.1 Protection of Title of Purchaser.
(a) At or prior to the Closing Date, Seller shall have filed or
caused to be filed a UCC-1 financing statement, executed by Seller as
seller or debtor, naming Purchaser as purchaser or secured party and
describing the Initial Receivables and the Initial Other Conveyed Property
being sold by it to Purchaser as collateral, with the office of the
Secretary of State of the State of Texas and in such other locations as
Purchaser shall have required. At or prior to any Subsequent Transfer
Date, the Seller shall file or cause to be filed a UCC-1 financing
statement executed by the Seller, as seller or debtor, naming the
Purchaser as purchaser or secured party and describing the Subsequent
Receivables and the Subsequent Other Conveyed Property being sold by it to
the Purchaser as collateral, with the office of the Secretary of State of
the State of Texas and in such other locations as Purchaser shall require.
From time to time thereafter, Seller shall execute and file such financing
statements and cause to be executed and filed such continuation
statements, all in such manner and in such places as may be required by
law fully to preserve, maintain and protect the interest of Purchaser
under this Agreement, of the Issuer under the Sale and Servicing Agreement
and of the Trust Collateral Agent under the Indenture in the Receivables
and the Other Conveyed Property and in the proceeds thereof. Seller shall
deliver (or cause to be delivered) to Purchaser, the Trust Collateral
Agent and the Security Insurer file-stamped copies of, or filing receipts
for, any document filed as provided above, as soon as available following
such filing. In the event that Seller fails to perform its obligations
under this subsection, Purchaser, Issuer or the Trust Collateral Agent may
do so, at the expense of Seller.
(b) Seller shall not change its name, identity, or corporate
structure in any manner that would, could or might make any financing
statement or continuation statement filed by Seller (or by Purchaser,
Issuer or the Trust Collateral Agent on behalf of Seller) in accordance
with paragraph (a) above seriously misleading within the meaning of ss.
9-402(7) of the UCC, unless it shall have given Purchaser, Issuer and the
Trust
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Collateral Agent at least 60 days' prior written notice thereof, and shall
promptly file appropriate amendments to all previously filed financing
statements and continuation statements.
(c) Seller shall give Purchaser, the Issuer, the Security Insurer
(so long as an Insurer Default shall not have occurred and be continuing)
and the Trust Collateral Agent at least 60 days' prior written notice of
any relocation of its principal executive office if, as a result of such
relocation, the applicable provisions of the UCC would require the filing
of any amendment of any previously filed financing or continuation
statement or of any new financing statement. Seller shall at all times
maintain each office from which it services Receivables and its principal
executive office within the United States of America.
(d) Prior to the Closing Date and with respect to Subsequent
Receivables, the Subsequent Transfer Date, Seller has maintained accounts
and records as to each Receivable accurately and in sufficient detail to
permit (i) the reader thereof to know at any time as of or prior to the
Closing Date and with respect to Subsequent Receivables, the Subsequent
Transfer Date, the status of such Receivable, including payments and
recoveries made and payments owing (and the nature of each) and (ii)
reconciliation between payments or recoveries on (or with respect to) each
Receivable and the Principal Balance as of the Closing Date and with
respect to Subsequent Receivables, the Subsequent Transfer Date. Seller
shall maintain its computer systems so that, from and after the time of
sale under this Agreement of the Receivables to Purchaser, and the
conveyance of the Receivables by Purchaser to the Issuer, Seller's master
computer records (including archives) that shall refer to a Receivable
indicate clearly that such Receivable has been sold to Purchaser and has
been conveyed by Purchaser to the Issuer. Indication of the Issuer's
ownership of a Receivable shall be deleted from or modified on Seller's
computer systems when, and only when, the Receivable shall become a
Purchased Receivable or shall have been paid in full.
(e) If at any xxxx Xxxxxx shall propose to sell, grant a security
interest in, or otherwise transfer any interest in any motor vehicle
receivables to any prospective purchaser, lender or other transferee,
Seller shall give to such prospective purchaser, lender, or other
transferee computer tapes, records, or print-outs (including any restored
from archives) that, if they shall refer in any manner whatsoever to any
Receivable (other than a Purchased Receivable), shall indicate clearly
that such Receivable has been sold to Purchaser, sold by Purchaser to
Issuer, and is owned by the Issuer.
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SECTION 4.2 Other Liens or Interests. Except for the conveyances
hereunder, Seller will not sell, pledge, assign or transfer to any other Person,
or grant, create, incur, assume or suffer to exist any Lien on the Receivables
or the Other Conveyed Property or any interest therein, and Seller shall defend
the right, title, and interest of Purchaser and the Issuer in and to the
Receivables and the Other Conveyed Property against all claims of third parties
claiming through or under Seller.
SECTION 4.3 Costs and Expenses. Seller shall pay all reasonable
costs and disbursements in connection with the performance of its obligations
hereunder and under its Related Documents.
SECTION 4.4 Indemnification.
(a) Seller shall defend, indemnify and hold harmless Purchaser, the
Issuer, the Trust Collateral Agent, the Trustee, the Backup Servicer, the
Owner Trustee, the Noteholders and the Certificateholders from and against
any and all costs, expenses, losses, damages, claims, and liabilities,
arising out of or resulting from any breach of any of Seller's
representations and warranties contained herein.
(b) Seller shall defend, indemnify and hold harmless Purchaser, the
Issuer, the Trust Collateral Agent, the Trustee, the Backup Servicer, the
Owner Trustee, the Noteholders and the Certificateholders from and against
any and all costs, expenses, losses, damages, claims, and liabilities,
arising out of or resulting from the use, ownership or operation by Seller
or any affiliate thereof of a Financed Vehicle.
(c) Seller shall defend, indemnify and hold harmless Purchaser, the
Issuer, the Trust Collateral Agent, the Trustee, the Backup Servicer, the
Owner Trustee, the Noteholders and the Certificateholders against any and
all costs, expenses, losses, damages, claims and liabilities arising out
of or resulting from any action taken, or failed to be taken, by it in
respect of any portion of the Receivables other than in accordance with
this Agreement or the Sale and Servicing Agreement.
(d) Seller agrees to pay, and shall defend, indemnify and hold
harmless Purchaser, the Issuer, the Trust Collateral Agent, the Trustee,
the Backup Servicer, the Owner Trustee, the Noteholders and the
Certificateholders from and against any taxes that may at any time be
asserted against Purchaser, the Issuer, the Trust Collateral Agent, the
Trustee, the Backup Servicer, the Owner Trustee, the Noteholders and the
Certificateholders with respect to the transactions contemplated in this
Agreement, including without limitation, any sales, gross receipts,
general corporation, tangible or intangible personal property, privilege,
or license
12
taxes (but not including any taxes asserted with respect to, and as of the
date of, the sale, transfer and assignment of the Receivables and the
Other Conveyed Property to Purchaser and by Purchaser to the Issuer or the
issuance and original sale of the Notes or the Certificates, or asserted
with respect to ownership of the Receivables and Other Conveyed Property
which shall be indemnified by Seller pursuant to clause (e) below, or
federal, state or other income taxes, arising out of distributions on the
Notes or the Certificates or transfer taxes arising in connection with the
transfer of the Notes or the Certificates) and costs and expenses in
defending against the same, arising by reason of the acts to be performed
by Seller under this Agreement or imposed against such Persons.
(e) Seller agrees to pay, and to indemnify, defend and hold harmless
Purchaser, the Issuer, the Trust Collateral Agent, the Trustee, the Backup
Servicer, the Owner Trustee, the Noteholders and the Certificateholders
from, any taxes which may at any time be asserted against such Persons
with respect to, and as of the date of, the conveyance or ownership of the
Receivables or the Other Conveyed Property hereunder and under any
Subsequent Purchase Agreement and the conveyance or ownership of the
Receivables under the Sale and Servicing Agreement or the issuance and
original sale of the Notes or the Certificates, including, without
limitation, any sales, gross receipts, personal property, tangible or
intangible personal property, privilege or license taxes (but not
including any federal or other income taxes, including franchise taxes,
arising out of the transactions contemplated hereby or transfer taxes
arising in connection with the transfer of the Notes or the Certificates)
and costs and expenses in defending against the same, arising by reason of
the acts to be performed by Seller under this Agreement or imposed against
such Persons.
(f) Seller shall defend, indemnify, and hold harmless Purchaser, the
Issuer, the Trust Collateral Agent, the Trustee, the Backup Servicer, the
Owner Trustee, the Noteholders and the Certificateholders from and against
any and all costs, expenses, losses, claims, damages, and liabilities to
the extent that such cost, expense, loss, claim, damage, or liability
arose out of, or was imposed upon Purchaser, the Issuer, the Trust
Collateral Agent, the Trustee, the Backup Servicer, the Owner Trustee, the
Noteholders or the Certificateholders through the negligence, willful
misfeasance, or bad faith of Seller in the performance of its duties under
this Agreement or by reason of reckless disregard of Seller's obligations
and duties under this Agreement.
(g) Seller shall indemnify, defend and hold harmless Purchaser, the
Issuer, the Trust Collateral Agent, the Trustee, the Backup Servicer, the
Owner Trustee, the Noteholders and the Certificateholders from and against
any loss, liability or expense incurred by reason of the violation by
Seller of
13
federal or state securities laws in connection with the registration or
the sale of the Notes or the Certificates.
(h) Seller shall indemnify, defend and hold harmless Purchaser, the
Issuer, the Trust Collateral Agent, the Trustee, the Backup Servicer, the
Owner Trustee, the Noteholders and the Certificateholders from and against
any loss, liability or expense imposed upon, or incurred by, Purchaser,
the Issuer, the Trust Collateral Agent, the Trustee, the Backup Servicer,
the Owner Trustee, the Noteholders or the Certificateholders as result of
the failure of any Receivable, or the sale of the related Financed
Vehicle, to comply with all requirements of applicable law.
(i) Seller shall defend, indemnify, and hold harmless Purchaser from
and against all costs, expenses, losses, claims, damages, and liabilities
arising out of or incurred in connection with the acceptance or
performance of Seller's trusts and duties as Servicer under the Sale and
Servicing Agreement, except to the extent that such cost, expense, loss,
claim, damage, or liability shall be due to the willful misfeasance, bad
faith, or negligence (except for errors in judgment) of Purchaser.
Indemnification under this Section 4.4 shall include reasonable fees
and expenses of counsel and expenses of litigation and shall survive payment of
the Notes and the Certificates. The indemnity obligations hereunder shall be in
addition to any obligation that Seller may otherwise have.
ARTICLE V
REPURCHASES
SECTION 5.1 Repurchase of Receivables Upon Breach of Warranty. Upon
the occurrence of a Repurchase Event, Seller shall, unless the breach which is
the subject of such Repurchase Event shall have been cured in all material
respects, repurchase the Receivable relating thereto from the Issuer and,
simultaneously with the repurchase of the Receivable, Seller shall deposit the
Purchase Amount in full, without deduction or offset, to the Collection Account,
pursuant to Section 3.2 of the Sale and Servicing Agreement. It is understood
and agreed that, except as set forth in Section 6.1 hereof, the obligation of
Seller to repurchase any Receivable, as to which a breach occurred and is
continuing, shall, if such obligation is fulfilled, constitute the sole remedy
against Seller for such breach available to Purchaser, the Issuer, the Security
Insurer, the Backup Servicer, the Noteholders, the Certificateholders, the Trust
Collateral Agent on behalf of the Noteholders or the Owner Trustee on behalf of
Certificateholders. The provisions of this Section 5.1 are intended to grant the
Issuer and the Trust Collateral Agent a direct right against Seller to demand
performance hereunder, and in connection
14
therewith, Seller waives any requirement of prior demand against Purchaser with
respect to such repurchase obligation. Any such repurchase shall take place in
the manner specified in Section 3.2 of the Sale and Servicing Agreement.
Notwithstanding any other provision of this Agreement or the Sale and Servicing
Agreement to the contrary, the obligation of Seller under this Section shall not
terminate upon a termination of Seller as Servicer under the Sale and Servicing
Agreement and shall be performed in accordance with the terms hereof
notwithstanding the failure of the Servicer or Purchaser to perform any of their
respective obligations with respect to such Receivable under the Sale and
Servicing Agreement.
In addition to the foregoing and notwithstanding whether the related
Receivable shall have been purchased by Seller, Seller shall indemnify the
Issuer, the Trust Collateral Agent, the Trustee, the Backup Servicer, the Owner
Trustee, the Security Insurer, the Noteholders and the Certificateholders
against all costs, expenses, losses, damages, claims and liabilities, including
reasonable fees and expenses of counsel, which may be asserted against or
incurred by any of them as a result of third party claims arising out of the
events or facts giving rise to such Repurchase Events.
SECTION 5.2 Reassignment of Purchased Receivables. Upon deposit in
the Collection Account of the Purchase Amount of any Receivable repurchased by
Seller under Section 5.1 hereof, Purchaser and the Issuer shall take such steps
as may be reasonably requested by Seller in order to assign to Seller all of
Purchaser's and the Issuer's right, title and interest in and to such Receivable
and all security and documents and all Other Conveyed Property conveyed to
Purchaser and the Issuer directly relating thereto, without recourse,
representation or warranty, except as to the absence of liens, charges or
encumbrances created by or arising as a result of actions of Purchaser or the
Issuer. Such assignment shall be a sale and assignment outright, and not for
security. If, following the reassignment of a Purchased Receivable, in any
enforcement suit or legal proceeding, it is held that Seller may not enforce any
such Receivable on the ground that it shall not be a real party in interest or a
holder entitled to enforce the Receivable, Purchaser and the Issuer shall, at
the expense of Seller, take such steps as Seller deems reasonably necessary to
enforce the Receivable, including bringing suit in Purchaser's or in the
Issuer's name.
SECTION 5.3 Waivers. No failure or delay on the part of Purchaser,
or the Issuer as assignee of Purchaser, in exercising any power, right or remedy
under this Agreement shall operate as a waiver thereof, nor shall any single or
partial exercise of any such power, right or remedy preclude any other or future
exercise thereof or the exercise of any other power, right or remedy.
ARTICLE VI
15
MISCELLANEOUS
SECTION 6.1 Liability of Seller. Seller shall be liable in
accordance herewith only to the extent of the obligations in this Agreement
specifically undertaken by Seller and the representations and warranties of
Seller.
SECTION 6.2 Merger or Consolidation of Seller or Purchaser. Any
corporation or other entity (i) into which Seller or Purchaser may be merged or
consolidated, (ii) resulting from any merger or consolidation to which Seller or
Purchaser is a party or (iii) succeeding to the business of Seller or Purchaser,
in the case of Purchaser, which corporation has a certificate of incorporation
containing provisions relating to limitations on business and other matters
substantively identical to those contained in Purchaser's certificate of
incorporation, provided that in any of the foregoing cases such corporation
shall execute an agreement of assumption to perform every obligation of Seller
or Purchaser, as the case may be, under this Agreement and, whether or not such
assumption agreement is executed, shall be the successor to Seller or Purchaser,
as the case may be, hereunder (without relieving Seller or Purchaser of its
responsibilities hereunder, if it survives such merger or consolidation) without
the execution or filing of any document or any further action by any of the
parties to this Agreement. Notwithstanding the foregoing, so long as an Insurer
Default shall not have occurred and be continuing, Purchaser shall not merge or
consolidate with any other Person or permit any other Person to become the
successor to Purchaser's business without the prior written consent of the
Security Insurer. Seller or Purchaser shall promptly inform the other party, the
Issuer, the Trust Collateral Agent, the Owner Trustee and, so long as an Insurer
Default shall not have occurred and be continuing, the Security Insurer of such
merger, consolidation or purchase and assumption. Notwithstanding the foregoing,
as a condition to the consummation of the transactions referred to in clauses
(i), (ii) and (iii) above, (x) immediately after giving effect to such
transaction, no representation or warranty made pursuant to Sections 3.1 and 3.2
of this Agreement shall have been breached (for purposes hereof, such
representations and warranties shall speak as of the date of the consummation of
such transaction) and no event that, after notice or lapse of time, or both,
would become an event of default under the Insurance Agreement, shall have
occurred and be continuing, (y) Seller or Purchaser, as applicable, shall have
delivered written notice of such consolidation, merger or purchase and
assumption to the Rating Agencies prior to the consummation of such transaction
and shall have delivered to the Issuer and the Trust Collateral Agent an
Officer's Certificate and an Opinion of Counsel each stating that such
consolidation, merger or succession and such agreement of assumption comply with
this Section 6.2 and that all conditions precedent, if any, provided for in this
Agreement relating to such transaction have been complied with, and (z) Seller
or Purchaser, as applicable, shall have delivered to the Issuer and the Trust
Collateral Agent an Opinion of Counsel, stating, in the opinion of such counsel,
either (A) all financing
16
statements and continuation statements and amendments thereto have been executed
and filed that are necessary to preserve and protect the interest of the Issuer
and the Trust Collateral Agent in the Receivables and reciting the details of
the filings or (B) no such action shall be necessary to preserve and protect
such interest.
SECTION 6.3 Limitation on Liability of Seller and Others. Seller and
any director, officer, employee or agent may rely in good faith on the advice of
counsel or on any document of any kind prima facie properly executed and
submitted by any Person respecting any matters arising under this Agreement.
Seller shall not be under any obligation to appear in, prosecute or defend any
legal action that is not incidental to its obligations under this Agreement or
its Related Documents and that in its opinion may involve it in any expense or
liability.
SECTION 6.4 Seller May Own Notes or Certificates. Subject to the
provisions of the Sale and Servicing Agreement, Seller and any Affiliate of
Seller may in its individual or any other capacity become the owner or pledgee
of Notes or Certificates with the same rights as it would have if it were not
Seller or an Affiliate thereof.
SECTION 6.5 Amendment.
(a) This Agreement may be amended by Seller and Purchaser with the
prior written consent of the Security Insurer (so long as an Insurer
Default shall not have occurred and be continuing) but without the consent
of the Trust Collateral Agent, the Owner Trustee or any of the
Certificateholders or Noteholders (i) to cure any ambiguity or (ii) to
correct any provisions in this Agreement; provided, however, that such
action shall not, as evidenced by an Opinion of Counsel delivered to the
Issuer, the Owner Trustee and the Trust Collateral Agent, adversely affect
in any material respect the interests of any Certificateholder or
Noteholder.
(b) This Agreement may also be amended from time to time by Seller
and Purchaser, with the prior written consent of the Security Insurer (so
long as an Insurer Default shall not have occurred and be continuing) and
with the consent of the Trust Collateral Agent and, if required, the
Certificateholders and the Noteholders, in accordance with the Sale and
Servicing Agreement, for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this
Agreement, or of modifying in any manner the rights of the
Certificateholders or Noteholders; provided, however, the Seller provides
the Trust Collateral Agent with an Opinion of Counsel, (Which may be
provided by the Seller's Internal Counsel) that no such amendment shall
increase or reduce in any manner the amount of, or accelerate or delay the
timing of,
17
collections of payments on Receivables or distributions that shall be
required to be made on any Note or Certificate.
(c) Prior to the execution of any such amendment or consent, Seller
shall have furnished written notification of the substance of such
amendment or consent to each Rating Agency.
(d) It shall not be necessary for the consent of Certificateholders
or Noteholders pursuant to this Section to approve the particular form of
any proposed amendment or consent, but it shall be sufficient if such
consent shall approve the substance thereof. The manner of obtaining such
consents and of evidencing the authorization of the execution thereof by
Certificateholders or Noteholders shall be subject to such reasonable
requirements as the Trust Collateral Agent may prescribe, including the
establishment of record dates. The consent of a Holder of a Certificate or
a Note given pursuant to this Section or pursuant to any other provision
of this Agreement shall be conclusive and binding on such Holder and on
all future Holders of such Certificate or Note and of any Certificate or
Note issued upon the transfer thereof or in exchange thereof or in lieu
thereof whether or not notation of such consent is made upon the
Certificate or Note.
SECTION 6.6 Notices. All demands, notices and communications to
Seller or Purchaser hereunder shall be in writing, personally delivered, or sent
by telecopier (subsequently confirmed in writing), reputable overnight courier
or mailed by certified mail, return receipt requested, and shall be deemed to
have been given upon receipt (a) in the case of Seller, to AmeriCredit Financial
Services, Inc., 000 Xxxxxx Xxxxxx, Xxxx Xxxxx, Xxxxx 00000-0000, Attention:
Chief Financial Officer, or (b) in case of Purchaser, to AFS Funding Corp., 0000
Xxxxxxxxx Xxx, Xxxx, Xxxxxx 00000, Attention: Chief Financial Officer, or such
other address as shall be designated by a party in a written notice delivered to
the other party or to the Issuer, Owner Trustee or the Trust Collateral Agent,
as applicable.
SECTION 6.7 Merger and Integration. Except as specifically stated
otherwise herein, this Agreement and Related Documents set forth the entire
understanding of the parties relating to the subject matter hereof, and all
prior understandings, written or oral, are superseded by this Agreement and the
Related Documents. This Agreement may not be modified, amended, waived or
supplemented except as provided herein.
SECTION 6.8 Severability of Provisions. If any one or more of the
covenants, provisions or terms of this Agreement shall be for any reason
whatsoever held invalid, then such covenants, provisions or terms shall be
deemed severable from the remaining covenants, provisions or terms of this
Agreement
18
and shall in no way affect the validity or enforceability of the other
provisions of this Agreement.
SECTION 6.9 Intention of the Parties. The execution and delivery of
this Agreement shall constitute an acknowledgment by Seller and Purchaser that
they intend that the assignment and transfer herein contemplated constitute a
sale and assignment outright, and not for security, of the Receivables and the
Other Conveyed Property, conveying good title thereto free and clear of any
Liens, from Seller to Purchaser, and that the Receivables and the Other Conveyed
Property shall not be a part of Seller's estate in the event of the bankruptcy,
reorganization, arrangement, insolvency or liquidation proceeding, or other
proceeding under any federal or state bankruptcy or similar law, or the
occurrence of another similar event, of, or with respect to Seller. In the event
that such conveyance is determined to be made as security for a loan made by
Purchaser, the Issuer, the Noteholders or the Certificateholders to Seller, the
parties intend that Seller shall have granted to Purchaser a security interest
in all of Seller's right, title and interest in and to the Receivables and the
Other Conveyed Property conveyed pursuant to Section 2.1 hereof, and that this
Agreement shall constitute a security agreement under applicable law.
SECTION 6.10 Governing Law. This Agreement shall be construed in
accordance with the laws of the State of New York without regard to the
principles of conflicts of laws thereof and the obligations, rights and remedies
of the parties under this Agreement shall be determined in accordance with such
laws.
SECTION 6.11 Counterparts. For the purpose of facilitating the
execution of this Agreement and for other purposes, this Agreement may be
executed simultaneously in any number of counterparts, each of which
counterparts shall be deemed to be an original, and all of which counterparts
shall constitute but one and the same instrument.
SECTION 6.12 Conveyance of the Receivables and the Other Conveyed
Property to the Issuer. Seller acknowledges that Purchaser intends, pursuant to
the Sale and Servicing Agreement, to convey the Receivables and the Other
Conveyed Property, together with its rights under this Agreement, to the Issuer
on the date hereof and on the Subsequent Transfer Date in the case of Subsequent
Receivables. Seller acknowledges and consents to such conveyance and pledge and
waives any further notice thereof and covenants and agrees that the
representations and warranties of Seller contained in this Agreement and the
rights of Purchaser hereunder are intended to benefit the Security Insurer, the
Issuer, the Owner Trustee, the Trust Collateral Agent, the Noteholders and the
Certificateholders. In furtherance of the foregoing, Seller covenants and agrees
to perform its duties and obligations hereunder, in accordance with the terms
hereof for the benefit of the Security Insurer, the Issuer, the Owner Trustee,
the Trust
19
Collateral Agent, the Noteholders and the Certificateholders and that,
notwithstanding anything to the contrary in this Agreement, Seller shall be
directly liable to the Issuer, the Owner Trustee, the Trust Collateral Agent,
the Noteholders and the Certificateholders (notwithstanding any failure by the
Servicer, the Backup Servicer or the Purchaser to perform their respective
duties and obligations hereunder or under Related Documents) and that the Trust
Collateral Agent may enforce the duties and obligations of Seller under this
Agreement against Seller for the benefit of the Security Insurer, the Owner
Trustee, the Trust Collateral Agent, the Noteholders and the Certificateholders.
SECTION 6.13 Nonpetition Covenant. Neither Purchaser nor Seller
shall petition or otherwise invoke the process of any court or government
authority for the purpose of commencing or sustaining a case against the
Purchaser or the Issuer under any federal or state bankruptcy, insolvency or
similar law or appointing a receiver, liquidator, assignee, trustee, custodian,
sequestrator or other similar official of the Purchaser or the Issuer or any
substantial part of their respective property, or ordering the winding up or
liquidation of the affairs of the Purchaser or the Issuer.
20
IN WITNESS WHEREOF, the parties have caused this Purchase Agreement
to be duly executed by their respective officers as of the day and year first
above written.
AFS FUNDING CORP.,
as Purchaser
By _____________________________
Name: Xxxxxxx X. Xxxxxx
Title: Vice President and Controller
AMERICREDIT FINANCIAL SERVICES, INC.,
as Seller
By _____________________________
Name: Xxxxxxx X. Xxxxxx
Title: Vice President and Controller
Accepted:
LASALLE NATIONAL BANK,
As Trustee and Trust Collateral Agent
By _______________________________
Name:
Title:
SCHEDULE A
SCHEDULE OF RECEIVABLES
SEE TAB 5
SCHEDULE B
(TO THE PURCHASE AGREEMENT)
REPRESENTATIONS AND WARRANTIES OF SELLER
1. Characteristics of Receivables. Each Receivable (A) was originated by a
Dealer for the retail sale of a Financed Vehicle in the ordinary course of such
Dealer's business in accordance with AmeriCredit's credit policies and such
Dealer had all necessary licenses and permits to originate Receivables in the
state where such Dealer was located, was fully and properly executed by the
parties thereto, was purchased by AmeriCredit from such Dealer under an existing
Dealer Agreement or pursuant to a Dealer Assignment with AmeriCredit and was
validly assigned by such Dealer to AmeriCredit pursuant to a Dealer Assignment,
(B) contains customary and enforceable provisions such as to render the rights
and remedies of the holder thereof adequate for realization against the
collateral security, (C) is a Receivable which provides for level monthly
payments (provided that the period in the first Collection Period and the
payment in the final Collection Period of the Receivable may be minimally
different from the normal period and level payment) which, if made when due,
shall fully amortize the Amount Financed over the original term and (D) has not
been amended or collections with respect to which waived, other than as
evidenced in the Receivable File relating thereto.
2. No Fraud or Misrepresentation. Each Receivable was originated by a
Dealer and was sold by the Dealer to AmeriCredit and by AmeriCredit to the
Seller without any fraud or misrepresentation on the part of such Dealer in any
case.
3. Compliance with Law. All requirements of applicable federal, state and
local laws, and regulations thereunder (including, without limitation, usury
laws, the Federal Truth-in-Lending Act, the Equal Credit Opportunity Act, the
Fair Credit Billing Act, the Fair Credit Reporting Act, the Fair Debt Collection
Practices Act, the Federal Trade Commission Act, the Xxxx-Xxxxxxxx Warranty Act,
the Federal Reserve Board's Regulations "B" and "Z", the Soldiers' and Sailors'
Civil Relief Act of 1940, each applicable state Motor Vehicle Retail Installment
Sales Act, and state adaptations of the National Consumer Act and of the Uniform
Consumer Credit Code and other consumer credit laws and equal credit opportunity
and disclosure laws) in respect of the Receivables and the Financed Vehicles,
have been complied with in all material respects, and each Receivable and the
sale of the Financed Vehicle evidenced by each Receivable complied at the time
it was originated or made and now complies in all material respects with all
applicable legal requirements.
4. Origination. Each Receivable was originated in the United States.
B-1
5. Binding Obligation. Each Receivable represents the genuine, legal,
valid and binding payment obligation of the Obligor thereon, enforceable by the
holder thereof in accordance with its terms, except (A) as enforceability may be
limited by bankruptcy, insolvency, reorganization or similar laws affecting the
enforcement of creditors' rights generally and by equitable limitations on the
availability of specific remedies, regardless of whether such enforceability is
considered in a proceeding in equity or at law and (B) as such Receivable may be
modified by the application after the Cutoff Date of the Soldiers' and Sailors'
Civil Relief Act of 1940, as amended; and all parties to each Receivable had
full legal capacity to execute and deliver such Receivable and all other
documents related thereto and to grant the security interest purported to be
granted thereby.
6. No Government Obligor. No Obligor is the United States of America or
any State or any agency, department, subdivision or instrumentality thereof.
7. Obligor Bankruptcy. At the related Cutoff Date no Obligor had been
identified on the records of AmeriCredit as being the subject of a current
bankruptcy proceeding.
8. Schedule of Receivables. The information set forth in the Schedule of
Receivables has been produced from the Electronic Ledger and was true and
correct in all material respects as of the close of business on the related
Cutoff Date.
9. Marking Records. By the Closing Date or Subsequent Transfer Date, as
applicable, the Seller will have caused the portions of the Electronic Ledger
relating to the Receivables to be clearly and unambiguously marked to show that
the Receivables have been sold to the Seller by the Servicer and resold by the
Seller to the Trust in accordance with the terms of the Sale and Servicing
Agreement.
10. Computer Tape. The Computer Tape made available by the Seller to the
Trust on the Closing Date or Subsequent Transfer Date, as applicable, was
complete and accurate as of the related Cutoff Date and includes a description
of the same Receivables that are described in the Schedule of Receivables.
11. Adverse Selection. No selection procedures adverse to the
Securityholders or the Insurer were utilized in selecting the Receivables from
those receivables owned by the Seller which met the selection criteria contained
in the Sale and Servicing Agreement.
12. Chattel Paper. The Receivables constitute chattel paper within the
meaning of the UCC as in effect in the States of Texas and New York.
13. One Original. There is only one original executed copy of each
Receivable.
B-2
14. Receivable Files Complete. There exists a Receivable File pertaining
to each Receivable and such Receivable File contains (a) a fully executed
original of the Receivable, (b) the original executed credit application, or a
copy thereof and (c) the original Lien Certificate or application therefor. Each
of such documents which is required to be signed by the Obligor has been signed
by the Obligor in the appropriate spaces. All blanks on any form have been
properly filled in and each form has otherwise been correctly prepared. The
complete Receivable File for each Receivable currently is in the possession of
the Custodian.
15. Receivables in Force. No Receivable has been satisfied, subordinated
or rescinded, and the Financed Vehicle securing each such Receivable has not
been released from the lien of the related Receivable in whole or in part. No
terms of any Receivable have been waived, altered or modified in any respect
since its origination, except by instruments or documents identified in the
Receivable File. No Receivable has been modified as a result of application of
the Soldiers' and Sailors' Civil Relief Act of 1940, as amended.
16. Lawful Assignment. No Receivable was originated in, or is subject to
the laws of, any jurisdiction the laws of which would make unlawful, void or
voidable the sale, transfer and assignment of such Receivable under this
Agreement or pursuant to transfers of the Securities.
17. Good Title. Immediately prior to the conveyance of the Receivables to
the Trust pursuant to this Agreement or Subsequent Transfer Agreement, as
applicable, the Seller was the sole owner thereof and had good and indefeasible
title thereto, free of any Lien and, upon execution and delivery of this
Agreement by the Seller, the Trust shall have good and indefeasible title to and
will be the sole owner of such Receivables, free of any Lien. No Dealer has a
participation in, or other right to receive, proceeds of any Receivable. The
Seller has not taken any action to convey any right to any Person that would
result in such Person having a right to payments received under the related
Insurance Policies or the related Dealer Agreements or Dealer Assignments or to
payments due under such Receivables.
18. Security Interest in Financed Vehicle. Each Receivable created or
shall create a valid, binding and enforceable first priority security interest
in favor of the Seller in the Financed Vehicle. The Lien Certificate and
original certificate of title for each Financed Vehicle show, or if a new or
replacement Lien Certificate is being applied for with respect to such Financed
Vehicle the Lien Certificate will be received within 180 days of the Closing
Date or Subsequent Transfer Date, as applicable, and will show the Seller named
as the original secured party under each Receivable as the holder of a first
priority security interest in such Financed Vehicle. With respect to each
Receivable for which the Lien Certificate has not yet been returned from the
Registrar of Titles, the Seller has received written evidence from the related
Dealer that such Lien Certificate showing the Seller as first lienholder has
been applied for
B-3
and the Seller's security interest has been validly assigned by the Seller to
the Trust pursuant to this Agreement. Immediately after the sale, transfer and
assignment thereof by the Seller to the Trust, each Receivable will be secured
by an enforceable and perfected first priority security interest in the Financed
Vehicle in favor of the Trustee as secured party, which security interest is
prior to all other Liens upon and security interests in such Financed Vehicle
which now exist or may hereafter arise or be created (except, as to priority,
for any lien for taxes, labor or materials affecting a Financed Vehicle). As of
the related Cutoff Date there were no Liens or claims for taxes, work, labor or
materials affecting a Financed Vehicle which are or may be Liens prior or equal
to the Liens of the related Receivable.
19. All Filings Made. All filings (including, without limitation, UCC
filings) required to be made by any Person and actions required to be taken or
performed by any Person in any jurisdiction to give the Trust a first priority
perfected lien on, or ownership interest in, the Receivables and the proceeds
thereof and the Other Conveyed Property have been made, taken or performed.
20. No Impairment. The Seller has not done anything to convey any right to
any Person that would result in such Person having a right to payments due under
the Receivable or otherwise to impair the rights of the Trust, the Insurer, the
Trustee, the Trust Collateral Agent and the Securityholders in any Receivable or
the proceeds thereof.
21. Receivable Not Assumable. No Receivable is assumable by another Person
in a manner which would release the Obligor thereof from such Obligor's
obligations to AmeriCredit with respect to such Receivable.
22. No Defenses. No Receivable is subject to any right of rescission,
setoff, counterclaim or defense and no such right has been asserted or
threatened with respect to any Receivable.
23. No Default. There has been no default, breach, violation or event
permitting acceleration under the terms of any Receivable (other than payment
delinquencies of not more than 30 days), and no condition exists or event has
occurred and is continuing that with notice, the lapse of time or both would
constitute a default, breach, violation or event permitting acceleration under
the terms of any Receivable, and there has been no waiver of any of the
foregoing. As of the related Cutoff Date no Financed Vehicle had been
repossessed.
24. Insurance. At the time of a purchase of a Receivable by AmeriCredit
from a Dealer, each Financed Vehicle is required to be covered by a
comprehensive and collision insurance policy (i) in an amount at least equal to
the lesser of (a) its maximum insurable value or (b) the principal amount due
from the Obligor under the related Receivable, (ii) naming AmeriCredit as loss
payee and (iii) insuring against loss
B-4
and damage due to fire, theft, transportation, collision and other risks
generally covered by comprehensive and collision coverage. Each Receivable
requires the Obligor to maintain physical loss and damage insurance, naming
AmeriCredit and its successors and assigns as additional insured parties, and
each Receivable permits the holder thereof to obtain physical loss and damage
insurance at the expense of the Obligor if the Obligor fails to do so. No
Financed Vehicle is insured under a policy of Force-Placed Insurance on the
related Cutoff Date.
25. Past Due. At the related Cutoff Date no Receivable was more than 30
days past due.
26. Remaining Principal Balance. At the related Cutoff Date the Principal
Balance of each Receivable set forth in the Schedule of Receivables is true and
accurate in all material respects.
27. Certain Characteristics of Initial Receivables. (A) Each Initial
Receivable had a remaining maturity, as of the Initial Cutoff Date, of not more
than 59 months; (B) each Receivable had an original maturity of not more than 60
months; (C) each Initial Receivable had a remaining Principal Balance as of the
Initial Cutoff Date of at least $250 and not more than $30,000; (D) each Initial
Receivable has an Annual Percentage Rate of at least 14.25% and not more than
33.00%; (E) no Initial Receivable was more than 30 days past due as of the
Initial Cutoff Date and (F) no funds have been advanced by AmeriCredit, any
Dealer, or anyone acting on behalf of any of them in order to cause any Initial
Receivable to qualify under clause (E) above.
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