EXHIBIT 10.1
EXECUTION COPY
PURCHASE AGREEMENT
BETWEEN
AFS FUNDING CORP.
PURCHASER
AND
AMERICREDIT FINANCIAL SERVICES, INC.
SELLER
DATED AS OF SEPTEMBER 10, 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............................................14
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.................................................................................15
SECTION 6.6 Notices...................................................................................15
SECTION 6.7 Merger and Integration....................................................................16
SECTION 6.8 Severability of Provisions................................................................16
SECTION 6.9 Intention of the Parties..................................................................16
SECTION 6.10 Governing Law...........................................................................17
SECTION 6.11 Counterparts............................................................................17
SECTION 6.12 Conveyance of the Receivables and the Other Conveyed Property to the
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Issuer..................................................................................17
SECTION 6.13 Nonpetition Covenant....................................................................18
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 September 10, 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
September 10, 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-C (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 September 18, 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-C.
"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
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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 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, naming 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 Delaware 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
naming 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 Delaware 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. In furtherance of the foregoing, the
Seller hereby authorizes the Purchaser, the Issuer or the Trust
Collateral Agent to file a record or records (as defined in the
applicable UCC), including, without limitation, financing statements,
in all jurisdictions and with all filing offices as each may
determine, in its sole discretion, are necessary or advisable to
perfect the security interest granted to the Purchaser pursuant to
Section 6.9 of this Agreement. Such financing statements may describe
the collateral in the same manner as described herein or may contain
an indication or description of collateral that describes such
property in any other manner as such party may determine, in its sole
discretion, is necessary, advisable or prudent to ensure the
perfection of the security interest in the collateral granted to the
Purchaser herein.
(b) Seller shall not change its name, identity, state of
incorporation 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.9-506 of the applicable 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 that would result in a change of location of the
debtor within the meaning of Section 9-307 of the applicable UCC.
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,
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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.
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.
10
(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, 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
11
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 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
12
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.
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.
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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 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
14
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 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
15
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.
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.
(a) 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:
(1) the Initial Receivables, the Subsequent Receivables and
all moneys received thereon after the Initial Cutoff Date,
(2) the Initial Other Conveyed Property and the Subsequent
Other Conveyed Property conveyed to Purchaser by Seller pursuant to
this Agreement including (a) an assignment of the security interests
in the Financed Vehicles granted by Obligors pursuant to the Initial
Receivables, the Subsequent Receivables and any other interest of the
Seller in such Financed Vehicles, (b) any proceeds and the right to
receive any proceeds with respect to the Initial Receivables and the
Subsequent Receivables from claims on any physical damage, credit life
or disability insurance policies covering Financed Vehicles or
Obligors and any proceeds from the liquidation of the Initial
Receivables, (c) any proceeds from any Initial Receivable and
Subsequent Receivable repurchased by a Dealer, pursuant to a Dealer
Agreement, as a result of a breach of
16
representation or warranty in the related Dealer Agreement,
(d) any proceeds from any Initial Receivable and Subsequent Receivable
repurchased by a Third-Party Lender, pursuant to an Auto Loan Purchase
and Sale Agreement, as a result of a breach of representation or
warranty in the related Auto Loan Purchase and Sale Agreement, (e) all
rights under any Service Contracts on the related Financed Vehicles,
(f) the related Receivables Files and (g) the proceeds of any and all
of the foregoing,
(3) all of the Seller's (a) Accounts, (b) Chattel Paper, (c)
Documents, (d) Instruments, and (e) General Intangibles (as such terms
are defined in the applicable UCC) relating to the property described
in items (1) and (2), and
(4) all proceeds and investments with respect to items (1),
(2), and (3) above.
(b) 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 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.
17
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.
18
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/ XXXXX XXXXX
----------------------------------
Name: Xxxxx Xxxxx
Title: Vice President, Structured
Finance
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/ XXXXXXXX X. X. XXXXX
----------------------------------------
Name: Xxxxxxxx X. X. Xxxxx
Title: Vice President
[Purchase Agreement]
SCHEDULE A
SCHEDULE OF RECEIVABLES FROM AFS
[On File with Trustee]
SCHEDULE B
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, New York and Delaware.
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)
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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) not more than 40% of Receivables (calculated by Aggregate
Principal Balance) shall have an original term to maturity of 72 months; (D)
each Initial Receivable had a remaining Principal Balance as of the Initial
Cutoff Date of at least $250 and not more than $60,000; (E) each Initial
Receivable has an Annual Percentage Rate of at least 8% and not more than 30%;
(F) no Initial Receivable was more than 30 days past due as of the Initial
Cutoff Date and (G) 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 (F) above.
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