EXHIBIT 10.1
EXECUTION COPY
PURCHASE AGREEMENT
BETWEEN
AFS FUNDING CORP.
PURCHASER
AND
AMERICREDIT FINANCIAL SERVICES, INC.
SELLER
DATED AS OF JANUARY 25, 2001
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 [Reserved].................................................3
SECTION 1.5 No Recourse................................................3
SECTION 1.6 Action by or Consent of Noteholders and Certificateholder..3
SECTION 1.7 Material Adverse Effect....................................3
ARTICLE II. CONVEYANCE OF THE RECEIVABLES AND THE OTHER CONVEYED PROPERTY.....4
SECTION 2.1 Conveyance of the Initial Receivables and the Initial Other
Conveyed Property..........................................4
SECTION 2.2 Conveyance of the Subsequent Receivables and the Subsequent
Other Conveyed Property....................................4
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................................................8
SECTION 4.1 Protection of Title of Purchaser...........................8
SECTION 4.2 Other Liens or Interests..................................10
SECTION 4.3 Costs and Expenses........................................10
SECTION 4.4 Indemnification...........................................10
ARTICLE V. REPURCHASES........................................................12
SECTION 5.1 Repurchase of Receivables Upon Breach of Warranty.........12
SECTION 5.2 Reassignment of Purchased Receivables.....................13
SECTION 5.3 Waivers...................................................13
ARTICLE VI. MISCELLANEOUS.....................................................13
SECTION 6.1 Liability of Seller.......................................13
SECTION 6.2 Merger or Consolidation of Seller or Purchaser............13
SECTION 6.3 Limitation on Liability of Seller and Others..............14
SECTION 6.4 Seller May Own Notes or the Certificate...................14
SECTION 6.5 Amendment.................................................14
SECTION 6.6 Notices...................................................15
SECTION 6.7 Merger and Integration....................................15
SECTION 6.8 Severability of Provisions................................16
SECTION 6.9 Intention of the Parties..................................16
SECTION 6.10 Governing Law...........................................16
SECTION 6.11 Counterparts............................................16
SECTION 6.12 Conveyance of the Receivables and the Other Conveyed
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Property to the Issuer..................................16
SECTION 6.13 Nonpetition Covenant....................................17
SCHEDULES
Schedule A -- Schedule of Receivables
Schedule B -- Representations and Warranties from AFS as to the Receivables
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PURCHASE AGREEMENT
THIS PURCHASE AGREEMENT, dated as of January 25, 2001,
executed among 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 the Seller,
and the 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 the
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 January 25, 2001, by and among AFS Funding
Corp. (as Seller), AmeriCredit Financial Services, Inc. (in its individual
capacity and as Servicer), AmeriCredit Automobile Receivables Trust 2001-A
(as Issuer) and The Chase Manhattan 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 February 6, 2001.
"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
Schedules of Receivables attached hereto.
"ISSUER" means AmeriCredit Automobile Receivables Trust
2001-A.
"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 Certificate,
the Custodian Agreement, the Sale and Servicing Agreement, the Indenture, the
Trust Agreement, the Policy, 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 the Seller's representations and warranties hereunder or any other event
which requires the repurchase of a Receivable by the 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 REPRESENTATIONS" means the Schedule of
Representations and Warranties attached hereto as Schedule B.
"SCHEDULES OF RECEIVABLES" means the schedule of Initial
Receivables sold and transferred pursuant to this Agreement which is attached
hereto as Schedule A.
"SUBSEQUENT CUTOFF DATE" means the date specified in the
related Subsequent Transfer Agreement, provided, however that such date shall
be on or before the Subsequent Transfer Date.
"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
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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 The Chase Manhattan Bank, as
trust collateral agent and any successor trust collateral agent appointed and
acting pursuant to the Sale and Servicing Agreement.
"TRUSTEE" means The Chase Manhattan 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 [RESERVED].
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
CERTIFICATEHOLDER. Whenever any provision of this Agreement refers to action
to be taken, or consented to, by Noteholders or the Certificateholder, 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
the Certificateholder. Solely for the purposes of any action to be taken, or
consented to, by Noteholders or the Certificateholder, 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 Noteholders (or any similar or
analogous determination), such determination shall be made without taking
into account the funds available from claims under the Policy.
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ARTICLE II.
CONVEYANCE OF THE RECEIVABLES
AND THE OTHER CONVEYED PROPERTY
SECTION 2.1 CONVEYANCE OF THE INITIAL RECEIVABLES AND THE
INITIAL OTHER CONVEYED PROPERTY.
(a) 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 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) 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 sold by
Seller, as set forth on the books and records of Seller, by wire
transfer of immediately available funds and the remainder as a
contribution to the capital of the Purchaser (a wholly-owned subsidiary
of Seller).
SECTION 2.2 CONVEYANCE OF THE SUBSEQUENT RECEIVABLES AND THE
SUBSEQUENT OTHER CONVEYED PROPERTY.
(a) 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) 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
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Receivables sold by Seller, as set forth on the books and records of
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 Insurer
will rely in issuing the 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 Noteholders.
(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.
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(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 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 Notes 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) TRUE SALE. The Receivables are being transferred with the
intention of removing them from Seller's estate pursuant to Section 541
of the Bankruptcy Code, as the same may be amended from time to time.
(i) CHIEF EXECUTIVE OFFICE. The chief executive office of
Seller is located at 000 Xxxxxx Xxxxxx, Xxxxx 0000, Xxxx Xxxxx,
Xxxxx 00000.
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SECTION 3.2 REPRESENTATIONS AND WARRANTIES OF PURCHASER.
Purchaser makes the following representations and warranties, on which Seller
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 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
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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 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 Certificateholder.
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
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have required. At or prior to any Subsequent Transfer Date, Seller
shall file or cause to be filed a UCC-1 financing statement executed
by 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 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 such 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
Section 9-402(7) of the UCC, unless they shall have given Purchaser,
Issuer and the Trust 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 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 their principal executive offices, 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.
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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.
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
Certificateholder 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
Certificateholder 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
Certificateholder from and 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 Certificateholder from and against any taxes that may at any time
be asserted against Purchaser, the Issuer, the Trust Collateral Agent,
the Trustee,
10
the Backup Servicer, the Owner Trustee, the Noteholders
and the Certificateholder 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 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 issuance of the Certificate, 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 Certificate or transfer taxes arising in connection
with the transfer of the Notes or the Certificate) 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 Certificateholder 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
issuance of the Certificate, 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 Certificate) 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
Certificateholder 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
Certificateholder 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
Certificateholder from and against any loss, liability or expense
incurred by reason of the violation by Seller of federal or state
securities laws in connection with the registration or the sale of the
Notes.
(h) Seller shall indemnify, defend and hold harmless
Purchaser, the Issuer, the Trust Collateral Agent, the Trustee, the
Backup Servicer, the Owner Trustee, the
11
Noteholders and the Certificateholder 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 Certificateholder 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.
(j) Seller shall indemnify the Owner Trustee and its officers,
directors, successors, assigns, agents and servants jointly and
severally with the Purchaser pursuant to Section 7.2 of the Trust
Agreement.
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 Certificate. 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 Insurer, the Backup Servicer, the
Noteholders, the Certificateholder, the Trust Collateral Agent on behalf of
the Noteholders or the Owner Trustee on behalf of the Certificateholder. 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 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.
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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 Insurer, the Noteholders and the Certificateholder from and
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 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.
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 their responsibilities
hereunder, if it survives such merger or consolidation) without the execution
or
13
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 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 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 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 thereof 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 THE CERTIFICATE.
Subject to the provisions of the Sale and Servicing Agreement, Seller and any
Affiliate of Seller may in their individual or any other capacity become the
owner or pledgee of Notes or the Certificate with the same rights as they
would have if they 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 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, the Certificateholder or
any of the 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
14
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 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 Certificateholder 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
Certificateholder 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, 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
Certificateholder 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 Certificateholder 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, Xxxxx 0000, Xxxx Xxxxx, Xxxxx 00000, Attention: Chief Financial
Officer, or (b) in the case of Purchaser, to AFS Funding Corp., 000 Xxxxxx
Xx., Xxxxx 000, 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.
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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 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
estates 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 Certificateholder 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 acknowledge 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 waive 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
Insurer, the Issuer, the Owner Trustee, the Trust Collateral Agent, the
Noteholders and the Certificateholder. 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 Insurer, the
Issuer, the Owner Trustee, the Trust Collateral Agent, the Noteholders and
the Certificateholder 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
Certificateholder (notwithstanding any failure by the Servicer, the Backup
Servicer or the Purchaser to perform its respective duties and obligations
hereunder or under Related Documents) and that the Trust Collateral Agent may
16
enforce the duties and obligations of Seller under this Agreement against
Seller for the benefit of the Insurer, the Owner Trustee, the Trust
Collateral Agent, the Noteholders and the Certificateholder.
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.
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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: /s/ Xxxxxxx X. Xxxxxx
-----------------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Executive Vice President and Treasurer
AMERICREDIT FINANCIAL SERVICES,
INC., as Seller
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Executive Vice President and Treasurer
Accepted:
THE CHASE MANHATTAN BANK,
as Trustee and Trust Collateral Agent
By: /s/ Xxxxx X. Xxxxxx
---------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
[Purchase Agreement]
SCHEDULE A
SCHEDULE OF RECEIVABLES FROM AFS
SCHEDULE B (TO THE PURCHASE AGREEMENT)
REPRESENTATIONS AND WARRANTIES OF
AMERICREDIT FINANCIAL SERVICES, INC. ("AMERICREDIT")
1. CHARACTERISTICS OF RECEIVABLES. Each Receivable (A) was originated
(i) by AmeriCredit, (ii) by a Dealer and 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 or (iii) by a Third-Party Lender and purchased by
AmeriCredit from such Third-Party Lender under an existing Auto Loan Purchase
and Sale Agreement or pursuant to a Third-Party Lender Assignment with
AmeriCredit and was validly assigned by such Third-Party Lender to AmeriCredit
pursuant to a Third-Party Lender Assignment (B) was originated by AmeriCredit,
such Dealer or such Third-Party Lender for the retail sale of a Financed Vehicle
in the ordinary course of AmeriCredit's, the Dealer's or the Third-Party
Lender's business, in each case was originated in accordance with AmeriCredit's
credit policies and was fully and properly executed by the parties thereto, and
AmeriCredit, each Dealer and each Third-Party Lender had all necessary licenses
and permits to originate Receivables in the state where AmeriCredit, each such
Dealer or each such Third-Party Lender was located, (C) contains customary and
enforceable provisions such as to render the rights and remedies of the holder
thereof adequate for realization against the collateral security, (D) 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 (E) 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 (i) by
AmeriCredit, (ii) by a Dealer and was sold by the Dealer to AmeriCredit, or
(iii) by a Third-Party Lender and was sold by the Third-Party Lender to
AmeriCredit, and was sold by AmeriCredit to AFS Funding without any fraud or
misrepresentation on the part of such Dealer or Third-Party Lender 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" (including amendments to the
Federal Reserve's Official Staff Commentary to Regulation Z, effective October
1, 1998, concerning negative equity loans), 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.
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. SCHEDULES OF RECEIVABLES. The information set forth in the
Schedules 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, AmeriCredit 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 AFS Funding by AmeriCredit and resold by the
AFS Funding to the Trust in accordance with the terms of the Sale and Servicing
Agreement.
10. COMPUTER TAPE. The Computer Tape made available by AmeriCredit
to AFS Funding and 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
Noteholders or the Insurer were utilized in selecting the Receivables from
those receivables owned by AmeriCredit 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.
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)
2
the original executed credit application, or a paper or electronic 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 Notes.
17. GOOD TITLE. Immediately prior to the conveyance of the
Receivables to AFS Funding pursuant to this Agreement or Subsequent Purchase
Agreement, as applicable, AmeriCredit 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 AmeriCredit, AFS Funding shall have good and
indefeasible title to and will be the sole owner of such Receivables, free of
any Lien. No Dealer or Third-Party Lender has a participation in, or other
right to receive, proceeds of any Receivable. AmeriCredit 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, Auto Loan Purchase and Sale Agreements, Dealer
Assignments, or Third-Party Lender 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 AmeriCredit 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 AmeriCredit 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, AmeriCredit has applied for or
received written evidence from the related Dealer or Third-Party Lender that
such Lien Certificate showing AmeriCredit as first lienholder has been
applied for and AmeriCredit's security interest has been validly assigned by
AmeriCredit to AFS Funding pursuant to this Agreement. Immediately after the
sale, transfer and assignment thereof by AmeriCredit to AFS Funding, each
Receivable will be secured by an enforceable and perfected first priority
security interest in the Financed Vehicle in favor of AFS Funding 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
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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 AFS Funding 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. AmeriCredit 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 Noteholders 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 origination of a Receivable by
AmeriCredit or a purchase of a Receivable by AmeriCredit from a Dealer or
Third-Party Lender, 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 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 Schedules of
Receivables is true and accurate in all material respects.
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27. CERTAIN CHARACTERISTICS OF INITIAL RECEIVABLES. (A) Each Initial
Receivable had a remaining maturity, as of the Initial Cutoff Date, of not
more than 72 months; (B) each Initial Receivable had an original maturity of
not more than 72 months; (C) each Initial Receivable had a remaining
Principal Balance as of the Initial Cutoff Date of at least $250 and not more
than $60,000; (D) each Initial Receivable has an Annual Percentage Rate of at
least 8% and not more than 33%; (E) no Initial Receivable was more than 30
days past due as of the Initial Cutoff Date and (F) no funds had been
advanced by AmeriCredit, any Dealer, any Third-Party Lender, 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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