EXHIBIT 10.1
PURCHASE AGREEMENT
BETWEEN
AFS SENSUB CORP.
PURCHASER
AND
AMERICREDIT FINANCIAL SERVICES, INC.
SELLER
DATED AS OF NOVEMBER 2, 2000
TABLE OF CONTENTS
PAGE
ARTICLE I. DEFINITIONS......................................................1
SECTION 1.1General.......................................................1
SECTION 1.2Specific Terms................................................1
SECTION 1.3Usage of Terms................................................2
SECTION 1.4[Reserved]....................................................2
SECTION 1.5No Recourse...................................................2
SECTION 1.6Action by or Consent of Noteholders and
Certificateholder.........................................2
SECTION 1.7[Reserved]....................................................3
ARTICLE II. CONVEYANCE OF THE RECEIVABLES AND THE OTHER CONVEYED PROPERTY..3
SECTION 2.1Conveyance of the Receivables and the Other
Conveyed Property.........................................3
SECTION 2.2[Reserved]....................................................3
ARTICLE III. REPRESENTATIONS AND WARRANTIES.................................3
SECTION 3.1Representations and Warranties of Seller......................3
SECTION 3.2[Reserved]....................................................5
SECTION 3.3Representations and Warranties of Purchaser...................5
ARTICLE IV. COVENANTS OF SELLER.............................................7
SECTION 4.1Protection of Title of Purchaser..............................7
SECTION 4.2Other Liens or Interests......................................8
SECTION 4.3Costs and Expenses............................................8
SECTION 4.4Indemnification...............................................8
ARTICLE V. REPURCHASES.....................................................11
SECTION 5.1Repurchase of Receivables Upon Breach of Warranty............11
SECTION 5.2Reassignment of Purchased Receivables........................11
SECTION 5.3Waivers......................................................12
ARTICLE VI. MISCELLANEOUS..................................................12
SECTION 6.1Liability of Seller..........................................12
SECTION 6.2Merger or Consolidation of Seller or Purchaser...............12
SECTION 6.3Limitation on Liability of Seller and Others.................12
SECTION 6.4Seller May Own Notes or the Certificate......................13
SECTION 6.5Amendment....................................................13
SECTION 6.6Notices......................................................14
SECTION 6.7Merger and Integration.......................................14
SECTION 6.8Severability of Provisions...................................14
SECTION 6.9Intention of the Parties.....................................14
SECTION 6.10Governing Law...............................................14
SECTION 6.11Counterparts................................................14
SECTION 6.12Conveyance of the Receivables and the Other
Conveyed Property to the Issuer..........................15
SECTION 6.13Nonpetition Covenant........................................15
SCHEDULES
Schedule A -- Schedule of Receivables
Schedule B -- Representations and Warranties from Seller as to the
Receivables
PURCHASE AGREEMENT
THIS PURCHASE AGREEMENT, dated as of November 2, 2000, 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 for other good and valuable consideration,
the receipt of which is acknowledged, Purchaser and Seller, intending to be
legally bound, hereby agree as follows:
ARTICLE I.
DEFINITIONS
SECTION 1.1 GENERAL. The specific terms defined in this Article include the
plural as well as the singular. The words "herein", "hereof" and "hereunder" and
other words of similar import refer to this Agreement as a whole and not to any
particular Article, Section or other subdivision, and Article, Section, Schedule
and Exhibit references, unless otherwise specified, refer to Articles and
Sections of and Schedules and Exhibits to this Agreement. Capitalized terms used
herein without definition shall have the respective meanings assigned to such
terms in the Sale and Servicing Agreement dated as of November 2, 2000, by and
among AFS SenSub Corp. (as Seller), AmeriCredit Financial Services, Inc. (in its
individual capacity and as Servicer), AmeriCredit Automobile Receivables Trust
2000-1 (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 November 16, 2000.
"ISSUER" means AmeriCredit Automobile Receivables Trust 2000-1.
"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 Receivables listed on the Schedules 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 and the Underwriting Agreement. The Related Documents to
be executed by any party are referred to herein as "such party's Related
Documents," "its Related Documents" or by a similar expression.
"REPURCHASE EVENT" means the occurrence of a breach of any of
Seller's representations and warranties hereunder or any other event which
requires the repurchase of a Receivable by Seller under the Sale and Servicing
Agreement.
"SALE AND SERVICING AGREEMENT" means the Sale and Servicing
Agreement referred to in Section 1.1 hereof.
"SCHEDULE OF REPRESENTATIONS" means the Schedule of Representations
and Warranties attached hereto as Schedule B.
"SCHEDULES OF RECEIVABLES" means the schedule of Receivables sold
and transferred pursuant to this Agreement which is attached hereto as Schedule
A.
"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 [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 Receivables and
the 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 Receivables and the 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 Receivables and the 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 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,
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 are true and correct.
(b) ORGANIZATION AND GOOD STANDING. Seller has been duly
organized and is validly existing as a corporation in good standing
under the laws of the State of Delaware, with power and authority to
own its properties and to conduct its business as such properties
are currently owned and such business is currently conducted, and
had at all relevant times, and now has, power, authority and legal
right to acquire, own and sell the Receivables and the Other
Conveyed Property to be transferred to Purchaser.
(c) DUE QUALIFICATION. Seller is duly qualified to do business
as a foreign corporation in good standing, and has obtained all
necessary licenses and approvals in all jurisdictions in which the
ownership or lease of its property or the conduct of its business
requires such qualification.
(d) POWER AND AUTHORITY. Seller has the power and authority to
execute and deliver this Agreement and its Related Documents and to
carry out its terms and their terms, respectively; Seller has full
power and authority to sell and assign the Receivables and the Other
Conveyed Property to be sold and assigned to and deposited with
Purchaser
hereunder and has duly authorized such sale and assignment to
Purchaser by all necessary corporate action; and the execution,
delivery and performance of this Agreement and Seller's Related
Documents have been duly authorized by Seller by all necessary
corporate action.
(e) VALID SALE; BINDING OBLIGATIONS. This Agreement and
Seller's Related Documents have been duly executed and delivered,
shall effect a valid sale, transfer and assignment of the
Receivables and the Other Conveyed Property to the Purchaser,
enforceable against Seller and creditors of and purchasers from
Seller; and this Agreement and Seller's 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.
(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 action.
(d) NO CONSENT REQUIRED. Purchaser is not required to obtain
the consent of any other Person, or any consent, license, approval
or authorization or registration or declaration with, any
governmental authority, bureau or agency in connection with the
execution, delivery or performance of this Agreement and the Related
Documents, except for such as have been obtained, effected or made.
(e) BINDING OBLIGATION. This Agreement constitutes a legal,
valid and binding obligation of Purchaser, enforceable against
Purchaser in accordance with its terms, subject, as to
enforceability, to applicable bankruptcy, insolvency,
reorganization, conservatorship, receivership, liquidation and other
similar laws and to general equitable principles.
(f) NO VIOLATION. The execution, delivery and performance by
Purchaser of this Agreement, the consummation of the transactions
contemplated by this Agreement and the Related Documents and the
fulfillment of the terms of this Agreement and the Related Documents
do not and will not conflict with, result in any breach of any of
the terms and 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.
ARTICLE IV.
COVENANTS OF SELLER
SECTION 4.1 PROTECTION OF TITLE OF PURCHASER.
(a) At or prior to the Closing Date, Seller shall have filed
or caused to be filed a UCC-1 financing statement, executed by
Seller as seller or debtor, naming Purchaser as purchaser or secured
party and describing the 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 Texas 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.
(b) Seller shall not change its name, identity, or corporate
structure in any manner that would, could or might make any
financing statement or continuation statement filed by Seller (or by
Purchaser, Issuer or the Trust Collateral Agent on behalf of Seller)
in accordance with paragraph (a) above seriously misleading within
the meaning ofss.9-402(7) of the UCC, unless they shall have given
Purchaser, Issuer and the Trust Collateral Agent at least 60 days'
prior written notice thereof, and shall promptly file appropriate
amendments to all previously filed financing statements and
continuation statements.
(c) Seller shall give Purchaser, the Issuer and the Trust
Collateral Agent at least 60 days' prior written notice of any
relocation of their principal executive offices, if as a result of
such relocation, the applicable provisions of the UCC would require
the filing of any amendment of any previously filed financing or
continuation statement or of any new financing statement. Seller
shall at all times maintain each office from which it services
Receivables and its principal executive office within the United
States of America.
(d) Prior to the Closing Date, 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 shall
have been paid in full.
(e) If at any xxxx Xxxxxx shall propose to sell, grant a
security interest in, or otherwise transfer any interest in any
motor vehicle receivables to any prospective purchaser, lender or
other transferee, Seller shall give to such prospective purchaser,
lender, or other transferee computer tapes, records, or print-outs
(including any restored from archives) that, if they shall refer in
any manner whatsoever to any Receivable (other than a Purchased
Receivable), shall indicate clearly that such Receivable has been
sold to Purchaser, sold by Purchaser to Issuer, and is owned by the
Issuer.
SECTION 4.2 OTHER LIENS OR INTERESTS
Except for the conveyances hereunder, Seller will not sell, pledge, assign or
transfer to any other Person, or grant, create, incur, assume or suffer to exist
any Lien on the Receivables or the Other Conveyed Property or any interest
therein, and Seller shall defend the right, title, and interest of Purchaser and
the Issuer in and to the Receivables and the Other Conveyed Property against all
claims of third parties claiming through or under Seller.
SECTION 4.3 COSTS AND EXPENSES
Seller shall pay all reasonable costs and disbursements in connection with the
performance of its obligations hereunder and under its Related Documents.
SECTION 4.4 INDEMNIFICATION.
(a) Seller shall defend, indemnify and hold harmless
Purchaser, the Issuer, the Trust Collateral Agent, the Trustee, the
Backup Servicer, the Owner Trustee, the Noteholders and the
Certificateholder from and against any and all costs, expenses,
losses, damages, claims, and liabilities, arising out of or
resulting from any breach of any of Seller's representations and
warranties contained herein.
(b) Seller shall defend, indemnify and hold harmless
Purchaser, the Issuer, the Trust Collateral Agent, the Trustee, the
Backup Servicer, the Owner Trustee, the Noteholders and the
Certificateholder from and against any and all costs, expenses,
losses, damages, claims, and liabilities, arising out of or
resulting from the use, ownership or operation by Seller or any
affiliate thereof of a Financed Vehicle.
(c) Seller shall defend, indemnify and hold harmless
Purchaser, the Issuer, the Trust Collateral Agent, the Trustee, the
Backup Servicer, the Owner Trustee, the Noteholders and the
Certificateholder from and against any and all costs, expenses,
losses, damages, claims and liabilities arising out of or resulting
from any action taken, or failed to be taken, by it in respect of
any portion of the Receivables other than in accordance with this
Agreement or the Sale and Servicing Agreement.
(d) Seller agrees to pay, and shall defend, indemnify and hold
harmless Purchaser, the Issuer, the Trust Collateral Agent, the
Trustee, the Backup Servicer, the Owner Trustee, the Noteholders and
the Certificateholder from and against any taxes that may at any
time be asserted against Purchaser, the Issuer, the Trust Collateral
Agent, the Trustee, 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.
(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 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, in exercising any power, right or remedy under this Agreement shall
operate as a waiver thereof, nor shall any single or partial exercise of any
such power, right or remedy preclude any other or future exercise thereof or the
exercise of any other power, right or remedy.
ARTICLE VI.
MISCELLANEOUS
SECTION 6.1 LIABILITY OF SELLER
Seller shall be liable in accordance herewith only to the extent of the
obligations in this Agreement specifically undertaken by Seller and the
representations and warranties of Seller.
SECTION 6.2 MERGER OR CONSOLIDATION OF SELLER OR PURCHASER
Any corporation or other entity (i) into which Seller or Purchaser may be merged
or consolidated, (ii) resulting from any merger or consolidation to which Seller
or Purchaser is a party or (iii) succeeding to the business of Seller or
Purchaser, in the case of Purchaser, which corporation has a certificate of
incorporation containing provisions relating to limitations on business and
other matters substantively identical to those contained in Purchaser's
certificate of incorporation, provided that in any of the foregoing cases such
corporation shall execute an agreement of assumption to perform every obligation
of Seller or Purchaser, as the case may be, under this Agreement and, whether or
not such assumption agreement is executed, shall be the successor to Seller or
Purchaser, as the case may be, hereunder (without relieving Seller or Purchaser
of their responsibilities hereunder, if it survives such merger or
consolidation) without the execution or 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 Section 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.
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
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., 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
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 parties intend that Seller shall have granted to Purchaser a
security interest in all of Seller's right, title and interest in and to the
Receivables and the Other Conveyed Property conveyed pursuant to Section 2.1
hereof, and that this Agreement shall constitute a security agreement under
applicable law.
SECTION 6.10. GOVERNING LAW
This Agreement shall be construed in accordance with the laws of the State of
New York without regard to the principles of conflicts of laws thereof and the
obligations, rights and remedies of the parties under this Agreement shall be
determined in accordance with such laws.
SECTION 6.11. COUNTERPARTS
For the purpose of facilitating the execution of this Agreement and for other
purposes, this Agreement may be executed simultaneously in any number of
counterparts, each of which counterparts shall be deemed to be an original, and
all of which counterparts shall constitute but one and the same instrument.
SECTION 6.12. CONVEYANCE OF THE RECEIVABLES AND THE OTHER
CONVEYED PROPERTY TO THE ISSUER
Seller acknowledges that Purchaser intends, pursuant to the Sale and Servicing
Agreement, to convey the Receivables and the Other Conveyed Property, together
with its rights under this Agreement, to the Issuer on the date hereof. 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 their respective
duties and obligations hereunder or under Related Documents) and that the Trust
Collateral Agent may enforce the duties and obligations of Seller under this
Agreement against Seller for the benefit of the 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.
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/ Xxxxxx Xxxxxx
------------------------------------------
Name: Xxxxxx Xxxxxx
Title: Vice President, Structured
Finance and Reporting
AMERICREDIT FINANCIAL SERVICES,
INC., as Seller
By /s/ Xxxxxxx X. Xxxxxx
------------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Executive Vice President and
Treasurer
Accepted:
THE CHASE MANHATTAN BANK,
as Trustee and Trust Collateral Agent
By /s/ Xxxxx Xxxxxxx
-----------------------------------------
Name: Xxxxx Xxxxxxx
Title: Assistant Vice President
[Purchase Agreement]
SCHEDULE A
SCHEDULE OF RECEIVABLES
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 SenSub Corp. ("AFS SenSub")
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, 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
by AmeriCredit and resold by AFS SenSub 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 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 chattel paper within
the meaning of the UCC as in effect in the States of Texas and New York.
13. ONE ORIGINAL. There is only one original executed copy of each
Receivable.
14. RECEIVABLE FILES COMPLETE. There exists a Receivable File
pertaining to each Receivable and such Receivable File contains (a) a fully
executed original of the Receivable, (b) 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 SenSub 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 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 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 SenSub pursuant to this Agreement. Immediately after the sale, transfer
and assignment thereof by AmeriCredit to AFS SenSub, each Receivable will be
secured by an enforceable and perfected first priority security interest in the
Financed Vehicle in favor of AFS SenSub 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.
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 SenSub 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
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 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 Cutoff Date.
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 Schedules 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 of not more than 72 months; (C) each Receivable had a
remaining Principal Balance as of the Cutoff Date of at least $250 and not more
than $60,000; (D) each Receivable had an Annual Percentage Rate of at least 8%
and not more than 30%; (E) no Receivable was more than 30 days past due as of
the Cutoff Date and (F) no funds had been advanced by AmeriCredit, any Dealer,
any Third-Party Lender, or anyone acting on behalf of any of them in order to
cause any Receivable to qualify under clause (E) above.
