EXHIBIT 10.1
EXECUTION COPY
PURCHASE AGREEMENT
BETWEEN
AFS SENSUB CORP.
PURCHASER
AND
AMERICREDIT FINANCIAL SERVICES, INC.
SELLER
DATED AS OF APRIL 6, 2005
TABLE OF CONTENTS
Page
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ARTICLE I. DEFINITIONS............................................................................... 1
SECTION 1.1 General.............................................................................. 1
SECTION 1.2 Specific Terms....................................................................... 1
SECTION 1.3 Usage of Terms....................................................................... 2
SECTION 1.4 [Reserved]........................................................................... 2
SECTION 1.5 No Recourse.......................................................................... 2
SECTION 1.6 Action by or Consent of Noteholders and Certificateholder............................ 3
SECTION 1.7 [Reserved]........................................................................... 3
ARTICLE II. CONVEYANCE OF THE RECEIVABLES AND THE OTHER CONVEYED PROPERTY............................ 3
SECTION 2.1 Conveyance of the Receivables and the Other Conveyed Property........................ 3
SECTION 2.2 [Reserved]........................................................................... 4
ARTICLE III. REPRESENTATIONS AND WARRANTIES............................................................ 4
SECTION 3.1 Representations and Warranties of Seller............................................. 4
SECTION 3.2 [Reserved]........................................................................... 6
SECTION 3.3 Representations and Warranties of Purchaser.......................................... 6
ARTICLE IV. COVENANTS OF SELLER....................................................................... 8
SECTION 4.1 Protection of Title of Purchaser..................................................... 8
SECTION 4.2 Other Liens or Interests............................................................. 9
SECTION 4.3 Costs and Expenses................................................................... 9
SECTION 4.4 Indemnification...................................................................... 9
ARTICLE V. REPURCHASES............................................................................... 11
SECTION 5.1 Repurchase of Receivables Upon Breach of Warranty.................................... 11
SECTION 5.2 Reassignment of Purchased Receivables................................................ 12
SECTION 5.3 Waivers.............................................................................. 12
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......................................... 13
SECTION 6.4 Seller May Own Notes or the Certificate.............................................. 14
SECTION 6.5 Amendment............................................................................ 14
SECTION 6.6 Notices.............................................................................. 14
SECTION 6.7 Merger and Integration............................................................... 15
SECTION 6.8 Severability of Provisions........................................................... 15
SECTION 6.9 Intention of the Parties............................................................. 15
SECTION 6.10 Governing Law........................................................................ 15
SECTION 6.11 Counterparts......................................................................... 15
SECTION 6.12 Conveyance of the Receivables and the Other Conveyed Property to the Issuer.......... 15
SECTION 6.13 Nonpetition Covenant................................................................. 16
SCHEDULES
Schedule A - Schedule of Receivables
Schedule B - Representations and Warranties from Seller as to the Receivables
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PURCHASE AGREEMENT
THIS PURCHASE AGREEMENT, dated as of April 6, 2005, executed
between AFS SenSub Corp., a Nevada corporation, as purchaser ("Purchaser"), and
AmeriCredit Financial Services, Inc., a Delaware corporation, as seller
("Seller").
W I T N E S S E T H :
WHEREAS, Purchaser has agreed to purchase from Seller, and
Seller, pursuant to this Agreement, is transferring to Purchaser the Receivables
and Other Conveyed Property.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements hereinafter contained, and other good and valuable consideration, the
receipt of which is acknowledged, Purchaser and Seller, intending to be legally
bound, hereby agree as follows:
ARTICLE I.
DEFINITIONS
SECTION 1.1 General. The specific terms defined in this
Article include the plural as well as the singular. The words "herein", "hereof"
and "hereunder" and other words of similar import refer to this Agreement as a
whole and not to any particular Article, Section or other subdivision, and
Article, Section, Schedule and Exhibit references, unless otherwise specified,
refer to Articles and Sections of and Schedules and Exhibits to this Agreement.
Capitalized terms used herein without definition shall have the respective
meanings assigned to such terms in the Sale and Servicing Agreement dated as of
April 6, 2005, by and among AFS SenSub Corp. (as Seller), AmeriCredit Financial
Services, Inc. (in its individual capacity and as Servicer), AmeriCredit
Automobile Receivables Trust 2005-1 (as Issuer), JPMorgan Chase Bank, National
Association as Trust Collateral Agent and System & Services Technologies, Inc.
as Backup Servicer.
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 April 14, 2005.
"Issuer" means AmeriCredit Automobile Receivables Trust 2005-1.
"Other Conveyed Property" means all property conveyed by the
Seller to the Purchaser pursuant to this Agreement and by the Purchaser to the
Trust pursuant to Sections 2.1(b), (c), (d), (e), (f), (h) and (i) of the Sale
and Servicing Agreement.
"Owner Trustee" means Wilmington Trust Company, as Owner Trustee
appointed and acting pursuant to the Trust Agreement.
"Receivables" means the Receivables listed on the Schedule of
Receivables attached hereto.
"Related Documents" means the Notes, the Certificate, the
Custodian Agreement, the Sale and Servicing Agreement, the Indenture, the Trust
Agreement, the Lockbox Agreement, the Underwriting Agreement and the Note
Purchase Agreement. The Related Documents to be executed by any party are
referred to herein as "such party's Related Documents," "its Related Documents"
or by a similar expression.
"Repurchase Event" means the occurrence of a breach of any of
Seller's representations and warranties hereunder or any other event which
requires the repurchase of a Receivable by Seller under the Sale and Servicing
Agreement.
"Sale and Servicing Agreement" means the Sale and Servicing
Agreement referred to in Section 1.1 hereof.
"Schedule of Receivables" means the schedule of Receivables sold
and transferred pursuant to this Agreement which is attached hereto as
Schedule A.
"Schedule of Representations" means the Schedule of
Representations and Warranties attached hereto as Schedule B.
"Trust Collateral Agent" means JPMorgan Chase Bank, National
Association, as trust collateral agent and any successor trust collateral agent
appointed and acting pursuant to the Indenture.
"Trustee" means JPMorgan Chase Bank, National Association, 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.
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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 1.6 [Reserved].
ARTICLE II.
CONVEYANCE OF THE RECEIVABLES
AND THE OTHER CONVEYED PROPERTY
SECTION 2.1 Conveyance of the Receivables and the 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 following described property
(collectively, the "Receivables and the Other Conveyed Property"):
(1) the Receivables and all moneys received
thereon after the Cutoff Date,
(2) the Other Conveyed Property conveyed to
Purchaser by Seller pursuant to this Agreement including (a) the
security interests in the Financed Vehicles granted by Obligors
pursuant to the 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 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 Receivables, (c) any proceeds from
any Receivable repurchased by a Dealer, pursuant to a Dealer
Agreement, as a result of a breach of representation or warranty
in the related Dealer Agreement, (d) any proceeds from any
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 and (f) the related Receivable
Files,
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(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) Simultaneously with the conveyance of the Receivables
and the 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 Receivables, as set forth on the books and records of
Seller, a portion 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 [Reserved].
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 the Closing Date 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. 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. 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 Receivables as of the date hereof and the Closing 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.
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(d) Power and Authority. Seller has the power and authority
to execute and deliver this Agreement and its Related Documents and to
carry out its terms and their terms, respectively; Seller has full power
and authority to sell and assign the Receivables and the Other Conveyed
Property to be sold and assigned to and deposited with Purchaser
hereunder and has duly authorized such sale and assignment to Purchaser
by all necessary corporate action; and the execution, delivery and
performance of this Agreement and Seller's Related Documents have been
duly authorized by Seller by all necessary corporate action.
(e) Valid Sale; Binding Obligations. This Agreement and
Seller's Related Documents have been duly executed and delivered, shall
effect a valid sale, transfer and assignment of the Receivables and the
Other Conveyed Property to the Purchaser, enforceable against Seller and
creditors of and purchasers from Seller; and this Agreement and Seller's
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 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.
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(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.
SECTION 3.2 [Reserved].
SECTION 3.3 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 corporate 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.
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(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 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), 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.
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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 Receivables and the 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
have required. 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 and the Trust Collateral Agent file-stamped copies of, or
filing receipts for, any document filed as provided above, as soon as
available following such filing. In the event that Seller fails to
perform its obligations under this subsection, Purchaser, Issuer or the
Trust Collateral Agent may do so, at the expense of Seller. 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 Section 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 and the Trust
Collateral Agent at least 60 days' prior written notice of any
relocation that would result in a change of the location of the debtor
within the meaning of Section 9-307 of the applicable UCC. Seller shall
at all times maintain (i) each office from which it services Receivables
within the United States of America or Canada and (ii) its principal
executive office within the United States of America.
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(d) Prior to the Closing 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 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. 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 a Sold Receivable or
shall have been paid in full or sold pursuant to the terms of the Sale
and Servicing Agreement.
(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 or a
Sold 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.
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(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 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.
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(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 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
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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 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.
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 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, or the Trust Collateral Agent
as assignee of the Issuer, 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.
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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 filing of any document or any further
action by any of the parties to this Agreement. Seller or Purchaser shall
promptly inform the other party, the Issuer, the Trust Collateral Agent and the
Owner Trustee 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), (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.
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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
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 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
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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 SenSub Corp., 0000X Xxxxxxxxxxx Xxxxx, Xxxxx 00, Xxx Xxxxx,
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. The execution and
delivery of this Agreement shall constitute an acknowledgment by Seller and
Purchaser that they intend that the assignment and transfer herein contemplated
constitute a sale and assignment outright, and not for security, of the
Receivables and the Other Conveyed Property, conveying good title thereto free
and clear of any Liens, from Seller to Purchaser, and that the Receivables and
the Other Conveyed Property shall not be a part of Seller's estate in the event
of the bankruptcy, reorganization, arrangement, insolvency or liquidation
proceeding, or other proceeding under any federal or state bankruptcy or similar
law, or the occurrence of another similar event, of, or with respect to Seller.
In the event that such conveyance is determined to be made as security for a
loan made by Purchaser, the Issuer, the Noteholders or the Certificateholder to
Seller, the Seller hereby grants to Purchaser a security interest in all of
Seller's right, title and interest in and to the Receivables, the Other Conveyed
Property and all other property conveyed to the Purchaser by the Seller pursuant
to Section 2.1 hereof, in each case, whether now owned or existing or hereafter
acquired or arising, and this Agreement shall constitute a security agreement
under applicable law.
SECTION 6.10 Governing Law. This Agreement shall be construed
in accordance with, and this Agreement and all matters arising out of or
relating in any way to this Agreement shall be governed by, the law of the State
of New York, without giving effect to its conflict of law provisions (other than
Sections 5-1401 and 5-1402 of the New York General Obligation Law).
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.
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SECTION 6.12 Conveyance of the Receivables and the Other
Conveyed Property to the Issuer. Seller acknowledges that Purchaser intends,
pursuant to the Sale and Servicing Agreement, to convey the Receivables and the
Other Conveyed Property, together with its rights under this Agreement, to the
Issuer on the date hereof. Seller acknowledges and consents to such conveyance
and pledge and waives any further notice thereof and covenants and agrees that
the representations and warranties of Seller contained in this Agreement and the
rights of Purchaser hereunder are intended to benefit the 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 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 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.
[Remainder of page intentionally left blank]
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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 SENSUB CORP., as Purchaser
By /s/ Xxxxx Xxxxxxxxxx
-----------------------------------
Name: Xxxxx Xxxxxxxxxx
Title: Assistant Vice President,
Structured Finance
AMERICREDIT FINANCIAL SERVICES,
INC., as Seller
By /s/ Xxxxx X. Xxxxxxxxx
-----------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Senior Vice President,
Structured Finance
Accepted:
JPMORGAN CHASE BANK, NATIONAL ASSOCIATION,
as Trustee and Trust Collateral Agent
By /s/ Xxxxxx X. Xxxx
--------------------------------
Name: Xxxxxx X. Xxxx
Title: Assistant Vice President
[Purchase Agreement]
SCHEDULE A
SCHEDULE OF RECEIVABLES
[On file with AmeriCredit, the Trustee and Xxxxx Xxxxxxxxxx LLP]
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 or the Servicer's electronic records 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 SenSub Corp. 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 Servicemembers
Civil Relief Act, 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
Servicemembers Civil Relief Act, 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 Cutoff Date no Obligor had been
identified on the records of AmeriCredit as being the subject of a current
bankruptcy proceeding.
8. Schedule of Receivables. The information set forth in the
Schedule of Receivables has been produced from the Electronic Ledger and was
true and correct in all material respects as of the close of business on the
Cutoff Date.
9. Marking Records. By the Closing Date, 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 SenSub Corp. by AmeriCredit and resold by AFS SenSub Corp. 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 SenSub Corp. and to the Trust on the Closing Date was complete and
accurate as of the 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 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 "tangible chattel
paper" within the meaning of the UCC as in effect in the States of Texas, New
York, Nevada 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) the original executed credit
application, or a paper or electronic copy thereof and (c) the original Lien
Certificate or a copy of the 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.
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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 or the Servicer's electronic
records.
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 SenSub Corp. pursuant to this Agreement, 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 SenSub
Corp. 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 (or a Titled Third-Party Lender which first
priority security interest has been assigned to AmeriCredit) in the Financed
Vehicle. The Lien Certificate for each Financed Vehicle shows, 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 and will show AmeriCredit (or, with respect to Lien Certificates provided
by the State of Maine, the Issuer) (or a Titled Third-Party Lender) 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, the Issuer or a Titled Third-Party Lender, as applicable, as first
lienholder has been applied for and any Titled Third-Party Lender's security
interest has been validly assigned by the Titled Third-Party Lender to
AmeriCredit and AmeriCredit's security interest has been validly assigned by
AmeriCredit to AFS SenSub Corp. pursuant to this Agreement. This Agreement
creates a valid and continuing security interest (as defined in the UCC) in the
Receivables in favor of the Purchaser, which security interest is prior to all
other Liens, and is enforceable as such as against creditors of and purchasers
from the Seller. Immediately after the sale, transfer and assignment thereof by
AmeriCredit to AFS SenSub Corp., each Receivable will be secured by an
enforceable and perfected first priority security interest in the Financed
Vehicle in favor of AFS SenSub Corp. 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 Cutoff Date there were no Liens or claims for taxes, work, labor or
materials affecting a Financed Vehicle which are or may be Liens prior or equal
to the Liens of the related Receivable.
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19. All Filings Made. All filings (including, without limitation,
UCC filings (including, without limitation, the filing by the Seller of all
appropriate financing statements in the proper filing office in the State of
Delaware under applicable law in order to perfect the security interest in the
Receivables granted to the Purchaser hereunder)) required to be made by any
Person and actions required to be taken or performed by any Person in any
jurisdiction to give AFS SenSub Corp. 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 Receivables or otherwise to impair the rights of the Trust, the
Trustee, the Trust Collateral Agent and the Noteholders in any Receivable or the
proceeds thereof. Other than the security interest granted to the Purchaser
pursuant to this Agreement and except any other security interests that have
been fully released and discharged as of the Closing Date, the Seller has not
pledged, assigned, sold, granted a security interest in, or otherwise conveyed
any of the Receivables. The Seller has not authorized the filing of and is not
aware of any financing statements against the Seller that include a description
of collateral covering the Receivables other than any financing statement
relating to the security interest granted to the Purchaser hereunder or that has
been terminated. The Seller is not aware of any judgment or tax lien filings
against it.
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 Cutoff Date no Financed Vehicle had been repossessed.
24. Insurance. At the time of an 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 Cutoff Date.
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25. Past Due. At the Cutoff Date no Receivable was more than 30 days
past due.
26. Remaining Principal Balance. At the Cutoff Date the Principal
Balance of each Receivable set forth in the Schedule of Receivables is true and
accurate in all material respects.
27. Certain Characteristics of Receivables. (A) Each Receivable had
a remaining maturity, as of the Cutoff Date, of not more than 72 months; (B)
each Receivable had an original maturity, as of the Cutoff Date, of not more
than 72 months; (C) as of the Cutoff Date, not more than 40% of Receivables
(calculated by Aggregate Principal Balance) had an original term to maturity of
72 months; (D) as of the Cutoff Date, each Receivable had a remaining Principal
Balance as of the Cutoff Date of at least $250 and not more than $80,000; (E)
each Receivable has an Annual Percentage Rate of at least 1% and not more than
33%; (F) not more than 35% of the Obligors reside in Texas and California (based
on the Obligor's mailing address as of the Cutoff Date); (G) no Receivable was
more than 30 days past due as of the Cutoff Date; and (H) no funds have been
advanced by AmeriCredit, any Dealer, any Third-Party Lender, or anyone acting on
behalf of any of them in order to cause any Receivable to qualify under clause
(G) above, (I) each Obligor had a billing address in the United States as of the
date of origination of the Receivable, is a natural person and is not an
Affiliate of any party to this Agreement, (J) each Receivable is denominated in,
and each Contract provides for payment in United States dollars and (K) each
Receivable arises under a Contract with respect to which AmeriCredit has
performed all obligations required to be performed by it thereunder, and in the
event such Contract is an installment sales contract, delivery of the Financed
Vehicle to the related Obligor has occurred.
28. Perfection. The Servicer has taken all steps necessary to
perfect AmeriCredit's security interest against the related Obligors in the
property securing the Receivables and will take all necessary steps on behalf of
the Trust to maintain the Trust's perfection of the security interest created by
each Receivable in the related Financed Vehicle.
29. Interest Calculation. Each Contract provides for the calculation
of interest payable thereunder under either the "simple interest" method, the
"Rule of 78's" method or the "precomputed interest" method.
30. Lockbox Account. Each Obligor has been, or will be, directed to
make all payments on their related Receivable to the Lockbox Account.
31. Lien Enforcement. Each Receivable provides for enforcement of
the lien or the clear legal right of repossession, as applicable, on the
Financed Vehicle securing such Receivable.
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32. Prospectus Supplement Description. Each Receivable conforms, and
all Receivables in the aggregate conform, in all material respects to the
description thereof set forth in the Prospectus Supplement.
33. Risk of Loss. Each Contract contains provisions requiring the
Obligor to assume all risk of loss or malfunction on the related
Financed Vehicle, requiring the Obligor to pay all sales, use, property, excise
and other similar taxes imposed on or with respect to the Financed Vehicle and
making the Obligor liable for all payments required to be made thereunder,
without any setoff, counterclaim or defense for any reason whatsoever, subject
only to the Obligor's right of quiet enjoyment.
34. Consumer Leases. No Receivable constitutes a "consumer lease"
under either (a) the UCC as in effect in the jurisdiction the law of which
governs the Receivable or (b) the Consumer Leasing Act, 15 USC 1667.
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