Exhibit 10.1
Execution Copy
PURCHASE AGREEMENT
between
AFS FUNDING CORP.
Purchaser
and
AMERICREDIT FINANCIAL SERVICES, INC.
Seller
Dated as of June 4, 2002
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............................................................................ 3
SECTION 1.4 [Reserved]................................................................................ 3
SECTION 1.5 No Recourse............................................................................... 3
SECTION 1.6 Action by or Consent of Noteholders and Certificateholder................................. 3
SECTION 1.7 Material Adverse Effect................................................................... 3
ARTICLE II. CONVEYANCE OF THE RECEIVABLES AND THE OTHER CONVEYED PROPERTY.................................. 4
SECTION 2.1 Conveyance of the Initial Receivables and the Initial Other Conveyed Property............. 4
SECTION 2.2 Conveyance of the Subsequent Receivables and the Subsequent Other Conveyed Property....... 4
ARTICLE III. REPRESENTATIONS AND WARRANTIES................................................................ 5
SECTION 3.1 Representations and Warranties of Seller.................................................. 5
SECTION 3.2 Representations and Warranties of Purchaser............................................... 7
ARTICLE IV. COVENANTS OF SELLER............................................................................ 8
SECTION 4.1 Protection of Title of Purchaser.......................................................... 8
SECTION 4.2 Other Liens or Interests.................................................................. 10
SECTION 4.3 Costs and Expenses........................................................................ 10
SECTION 4.4 Indemnification........................................................................... 10
ARTICLE V. REPURCHASES..................................................................................... 12
SECTION 5.1 Repurchase of Receivables Upon Breach of Warranty......................................... 12
SECTION 5.2 Reassignment of Purchased Receivables..................................................... 13
SECTION 5.3 Waivers................................................................................... 13
ARTICLE VI. MISCELLANEOUS.................................................................................. 13
SECTION 6.1 Liability of Seller....................................................................... 13
SECTION 6.2 Merger or Consolidation of Seller or Purchaser............................................ 14
SECTION 6.3 Limitation on Liability of Seller and Others.............................................. 14
SECTION 6.4 Seller May Own Notes or the Certificate................................................... 14
SECTION 6.5 Amendment................................................................................. 15
SECTION 6.6 Notices................................................................................... 15
SECTION 6.7 Merger and Integration.................................................................... 16
SECTION 6.8 Severability of Provisions................................................................ 16
SECTION 6.9 Intention of the Parties.................................................................. 16
SECTION 6.10 Governing Law............................................................................. 17
SECTION 6.11 Counterparts.............................................................................. 17
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SECTION 6.12 Conveyance of the Receivables and the Other Conveyed Property to the Issuer............. 17
SECTION 6.13 Nonpetition Covenant.................................................................... 18
SCHEDULES
Schedule A -- Schedule of Receivables
Schedule B -- Representations and Warranties from AFS as to the Receivables
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PURCHASE AGREEMENT
THIS PURCHASE AGREEMENT, dated as of June 4, 2002, executed among AFS
Funding Corp., a Nevada corporation, as purchaser ("Purchaser") and AmeriCredit
Financial Services, Inc., a Delaware corporation, as Seller ("Seller").
W I T N E S S E T H :
WHEREAS, Purchaser has agreed to purchase from the Seller, and the
Seller, pursuant to this Agreement, is transferring to Purchaser the Initial
Receivables and Other Conveyed Property and with respect to the Subsequent
Receivables will transfer on the related Subsequent Transfer Date the Subsequent
Receivables and the Subsequent Other Conveyed Property.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements hereinafter contained, and for other good and valuable consideration,
the receipt of which is acknowledged, Purchaser and the Seller, intending to be
legally bound, hereby agree as follows:
ARTICLE I.
DEFINITIONS
SECTION 1.1 General. The specific terms defined in this Article
include the plural as well as the singular. The words "herein," "hereof" and
"hereunder" and other words of similar import refer to this Agreement as a whole
and not to any particular Article, Section or other subdivision, and Article,
Section, Schedule and Exhibit references, unless otherwise specified, refer to
Articles and Sections of and Schedules and Exhibits to this Agreement.
Capitalized terms used herein without definition shall have the respective
meanings assigned to such terms in the Sale and Servicing Agreement dated as of
June 4, 2002, by and among AFS Funding Corp. (as Seller), AmeriCredit Financial
Services, Inc. (in its individual capacity and as Servicer), AmeriCredit
Automobile Receivables Trust 2002-B (as Issuer) and JPMorgan Chase 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 June 12, 2002.
"Initial Other Conveyed Property" means all property conveyed by the
Seller to the Purchaser pursuant to this Agreement other than the Initial
Receivables.
"Initial Receivables" means the Receivables listed on the Schedules of
Receivables attached hereto.
"Issuer" means AmeriCredit Automobile Receivables Trust 2002-B.
"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 Deutsche Bank Trust Company Delaware, as Owner
Trustee appointed and acting pursuant to the Trust Agreement.
"Receivables" means the Initial Receivables and the Subsequent
Receivables.
"Related Documents" means, with respect to the Subsequent Receivables,
the Subsequent Purchase Agreement, the Notes, the Certificate, the Custodian
Agreement, the Sale and Servicing Agreement, the Indenture, the Trust Agreement,
the Policy, the Spread Account Agreement, the Spread Account Agreement
Supplement, the Insurance Agreement, the Lockbox Agreement and the Underwriting
Agreement. The Related Documents to be executed by any party are referred to
herein as "such party's Related Documents," "its Related Documents" or by a
similar expression.
"Repurchase Event" means the occurrence of a breach of any of the
Seller's representations and warranties hereunder or any other event which
requires the repurchase of a Receivable by the Seller under the Sale and
Servicing Agreement.
"Sale and Servicing Agreement" means the Sale and Servicing Agreement
referred to in Section 1.1 hereof.
"Schedule of Representations" means the Schedule of Representations
and Warranties attached hereto as Schedule B.
"Schedules of Receivables" means the schedule of Initial Receivables
sold and transferred pursuant to this Agreement which is attached hereto as
Schedule A.
"Subsequent Cutoff Date" means the date specified in the related
Subsequent Transfer Agreement, provided, however that such date shall be on or
before the Subsequent Transfer Date.
"Subsequent Other Conveyed Property" means all property conveyed by
the Seller to the Purchaser pursuant to the Subsequent Purchase Agreement other
than the Subsequent Receivables.
"Subsequent Purchase Agreement" means an agreement by and between the
Seller and the Purchaser pursuant to which the Purchaser will acquire
Subsequent Receivables.
"Subsequent Receivables" means the Receivables transferred to the
Purchaser pursuant to Section 2.2, which shall be listed on Schedule A to the
related Subsequent Purchase Agreement.
"Subsequent Transfer Date" means, with respect to Subsequent
Receivables, any date, occurring not more frequently than once a month, during
the Funding Period on which
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Subsequent Receivables are to be transferred to the Purchaser pursuant to this
Agreement, and a Subsequent Purchase Agreement is executed and delivered.
"Trust Collateral Agent" means JPMorgan Chase Bank, as trust
collateral agent and any successor trust collateral agent appointed and acting
pursuant to the Sale and Servicing Agreement.
"Trustee" means JPMorgan Chase Bank, as trustee and any successor
Trustee appointed and acting pursuant to the Indenture.
SECTION 1.3 Usage of Terms. With respect to all terms used in this
Agreement, the singular includes the plural and the plural the singular; words
importing any gender include the other gender; references to "writing" include
printing, typing, lithography, and other means of reproducing words in a visible
form; references to agreements and other contractual instruments include all
subsequent amendments thereto or changes therein entered into in accordance with
their respective terms and not prohibited by this Agreement or the Sale and
Servicing Agreement; references to Persons include their permitted successors
and assigns; and the terms "include" or "including" mean "include without
limitation" or "including without limitation."
SECTION 1.4 [Reserved].
SECTION 1.5 No Recourse. Without limiting the obligations of Seller
hereunder, no recourse may be taken, directly or indirectly, under this
Agreement or any certificate or other writing delivered in connection herewith
or therewith, against any stockholder, officer or director, as such, of Seller,
or of any predecessor or successor of Seller.
SECTION 1.6 Action by or Consent of Noteholders and
Certificateholder. Whenever any provision of this Agreement refers to action to
be taken, or consented to, by Noteholders or the Certificateholder, such
provision shall be deemed to refer to the Certificateholder or Noteholder, as
the case may be, of record as of the Record Date immediately preceding the date
on which such action is to be taken, or consent given, by Noteholders or the
Certificateholder. Solely for the purposes of any action to be taken, or
consented to, by Noteholders or the Certificateholder, any Note or Certificate
registered in the name of the Seller or any Affiliate thereof shall be deemed
not to be outstanding; provided, however, that, solely for the purpose of
determining whether the Trustee or the Trust Collateral Agent is entitled to
rely upon any such action or consent, only Notes or Certificates which the Owner
Trustee, the Trustee or the Trust Collateral Agent, respectively, knows to be so
owned shall be so disregarded.
SECTION 1.7 Material Adverse Effect. Whenever a determination is to
be made under this Agreement as to whether a given event, action, course
of conduct or set of facts or circumstances could or would have a material
adverse effect on the Noteholders (or any similar or analogous determination),
such determination shall be made without taking into account the funds available
from claims under the Note Policy.
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ARTICLE II.
CONVEYANCE OF THE RECEIVABLES
AND THE OTHER CONVEYED PROPERTY
SECTION 2.1 Conveyance of the Initial Receivables and the Initial
Other Conveyed Property.
(a) Subject to the terms and conditions of this Agreement, Seller
hereby sells, transfers, assigns, and otherwise conveys to Purchaser
without recourse (but without limitation of its obligations in this
Agreement), and Purchaser hereby purchases, all right, title and interest
of Seller in and to the Initial Receivables and the Initial Other Conveyed
Property. It is the intention of Seller and Purchaser that the transfer and
assignment contemplated by this Agreement shall constitute a sale of the
Initial Receivables and the Initial Other Conveyed Property from Seller to
Purchaser, conveying good title thereto free and clear of any liens, and
the beneficial interest in and title to the Initial Receivables and the
Initial Other Conveyed Property shall not be part of Seller's estate in the
event of the filing of a bankruptcy petition by or against Seller under any
bankruptcy or similar law.
(b) Simultaneously with the conveyance of the Initial Receivables and
the Initial Other Conveyed Property to Purchaser, Purchaser has paid or
caused to be paid to or upon the order of Seller an amount equal to the
book value of the Initial Receivables sold by Seller, as set forth on the
books and records of Seller, by wire transfer of immediately available
funds and the remainder as a contribution to the capital of the Purchaser
(a wholly-owned subsidiary of Seller).
SECTION 2.2 Conveyance of the Subsequent Receivables and the
Subsequent Other Conveyed Property.
(a) On each Subsequent Transfer Date and simultaneously with the
execution and delivery of the related Subsequent Purchase Agreement, the
Seller shall sell, transfer, assign, and otherwise convey to Purchaser
without recourse (but without limitation of its obligations in this
Agreement), and Purchaser shall purchase, all right, title and interest of
Seller in and to the Subsequent Receivables and the Subsequent Other
Conveyed Property. It is the intention of Seller and Purchaser that the
transfer and assignment contemplated by such Agreement shall constitute a
sale of the Subsequent Receivables and the Subsequent Other Conveyed
Property from Seller to Purchaser, conveying good title thereto free and
clear of any liens, and the beneficial interest in and title to the
Subsequent Receivables and the Subsequent Other Conveyed Property shall not
be part of Seller's estate in the event of the filing of a bankruptcy
petition by or against Seller under any bankruptcy or similar law.
(b) Simultaneously with the conveyance of the Subsequent
Receivables and the Subsequent Other Conveyed Property to Purchaser, Purchaser
shall pay or cause to be paid to or upon the order of Seller an amount equal to
the book value of the Subsequent
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Receivables sold by Seller, as set forth on the books and records of
Seller, by wire transfer of immediately available funds.
ARTICLE III.
REPRESENTATIONS AND WARRANTIES
SECTION 3.1 Representations and Warranties of Seller. Seller makes the
following representations and warranties as of the date hereof and as of the
Subsequent Transfer Date, as the case may be, on which Purchaser relies in
purchasing the Receivables and the Other Conveyed Property and in transferring
the Receivables and the Other Conveyed Property to the Issuer under the Sale and
Servicing Agreement and on which the Insurer will rely in issuing the Policies.
Such representations are made as of the execution and delivery of this Agreement
and as of the execution and delivery of any Subsequent Purchase Agreement, but
shall survive the sale, transfer and assignment of the Receivables and the Other
Conveyed Property hereunder and under any Subsequent Purchase Agreement, and the
sale, transfer and assignment thereof by Purchaser to the Issuer under the Sale
and Servicing Agreement. Seller and Purchaser agree that Purchaser will assign
to Issuer all Purchaser's rights under this Agreement and that the Trustee will
thereafter be entitled to enforce this Agreement against Seller in the Trustee's
own name on behalf of the Noteholders.
(a) Schedule of Representations. The representations and warranties
set forth on the Schedule of Representations with respect to the Initial
Receivables as of the date hereof, and with respect to the Subsequent
Receivables as of the related Subsequent Transfer Date, are true and
correct.
(b) Organization and Good Standing. Seller has been duly organized and
is validly existing as a corporation in good standing under the laws of the
State of Delaware, with power and authority to own its properties and to
conduct its business as such properties are currently owned and such
business is currently conducted, and had at all relevant times, and now
has, power, authority and legal right to acquire, own and sell the
Receivables and the Other Conveyed Property to be transferred to Purchaser.
(c) Due Qualification. Seller is duly qualified to do business as a
foreign corporation in good standing, and has obtained all necessary
licenses and approvals in all jurisdictions in which the ownership or lease
of its property or the conduct of its business requires such qualification.
(d) Power and Authority. Seller has the power and authority to execute
and deliver this Agreement and its Related Documents and to carry out its
terms and their terms, respectively; Seller has full power and authority to
sell and assign the Receivables and the Other Conveyed Property to be sold
and assigned to and deposited with Purchaser hereunder and has duly
authorized such sale and assignment to Purchaser by all necessary corporate
action; and the execution, delivery and performance of this Agreement and
Seller's Related Documents have been duly authorized by Seller by all
necessary corporate action.
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(e) Valid Sale; Binding Obligations. This Agreement and Seller's
Related Documents have been duly execute and delivered, shall effect a
valid sale, transfer and assignment of the Receivables and the Other
Conveyed Property to the Purchaser, enforceable against Seller and
creditors of and purchasers from Seller; and this Agreement and Seller's
Related Documents constitute legal, valid and binding obligations of Seller
enforceable in accordance with their respective terms, except as
enforceability may be limited by bankruptcy, insolvency, reorganization or
other similar laws affecting the enforcement of creditors' rights generally
and by equitable limitations on the availability of specific remedies,
regardless of whether such enforceability is considered in a proceeding in
equity or at law.
(f) No Violation. The consummation of the transactions contemplated by
this Agreement and the Related Documents, and the fulfillment of the terms
of this Agreement and the Related Documents, shall not conflict with,
result in any breach of any of the terms and provisions of, or constitute
(with or without notice, lapse of time or both) a default under, the
articles of incorporation or bylaws of Seller, or any indenture, agreement,
mortgage, deed of trust or other instrument to which Seller is a party or
by which it is bound, or result in the creation or imposition of any Lien
upon any of its properties pursuant to the terms of any such indenture,
agreement, mortgage, deed of trust or other instrument, other than this
Agreement, the Spread Account Agreement, the Sale and Servicing Agreement
and the Indenture, or violate any law, order, rule or regulation applicable
to Seller of any court or of any federal or state regulatory body,
administrative agency or other governmental instrumentality having
jurisdiction over Seller or any of its properties.
(g) No Proceedings. There are no proceedings or investigations pending
or, to Seller's knowledge, threatened against Seller, before any court,
regulatory body, administrative agency or other tribunal or governmental
instrumentality having jurisdiction over Seller or its properties (i)
asserting the invalidity of this Agreement or any of the Related Documents,
(ii) seeking to prevent the issuance of the Notes or the consummation of
any of the transactions contemplated by this Agreement or any of the
Related Documents, (iii) seeking any determination or ruling that might
materially and adversely affect the performance by Seller of its
obligations under, or the validity or enforceability of, this Agreement or
any of the Related Documents or (iv) seeking to affect adversely the
federal income tax or other federal, state or local tax attributes of, or
seeking to impose any excise, franchise, transfer or similar tax upon, the
transfer and acquisition of the Receivables and the Other Conveyed Property
hereunder or under the Sale and Servicing Agreement.
(h) True Sale. The Receivables are being transferred with the
intention of removing them from Seller's estate pursuant to Section 541 of
the Bankruptcy Code, as the same may be amended from time to time.
(i) Chief Executive Office. The chief executive office of Seller is
located at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇.
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SECTION 3.2 Representations and Warranties of Purchaser. Purchaser
makes the following representations and warranties, on which Seller relies in
selling, assigning, transferring and conveying the Receivables and the Other
Conveyed Property to Purchaser hereunder. Such representations are made as of
the execution and delivery of this Agreement, but shall survive the sale,
transfer and assignment of the Receivables and the Other Conveyed Property
hereunder and the sale, transfer and assignment thereof by Purchaser to the
Issuer under the Sale and Servicing Agreement.
(a) Organization and Good Standing. Purchaser has been duly organized
and is validly existing and in good standing as a corporation under the
laws of the State of Nevada, with the power and authority to own its
properties and to conduct its business as such properties are currently
owned and such business is currently conducted, and had at all relevant
times, and has, full power, authority and legal right to acquire and own
the Receivables and the Other Conveyed Property, and to transfer the
Receivables and the Other Conveyed Property to the Issuer pursuant to the
Sale and Servicing Agreement.
(b) Due Qualification. Purchaser is duly qualified to do business as a
foreign corporation in good standing, and has obtained all necessary
licenses and approvals in all jurisdictions where the failure to do so
would materially and adversely affect Purchaser's ability to acquire the
Receivables or the Other Conveyed Property, and to transfer the Receivables
and the Other Conveyed Property to the Issuer pursuant to the Sale and
Servicing Agreement, or the validity or enforceability of the Receivables
and the Other Conveyed Property or to perform Purchaser's obligations
hereunder and under the Purchaser's Related Documents.
(c) Power and Authority. Purchaser has the power, authority and legal
right to execute and deliver this Agreement and to carry out the terms
hereof and to acquire the Receivables and the Other Conveyed Property
hereunder; and the execution, delivery and performance of this Agreement
and all of the documents required pursuant hereto have been duly authorized
by Purchaser by all necessary action.
(d) No Consent Required. Purchaser is not required to obtain the
consent of any other Person, or any consent, license, approval or
authorization or registration or declaration with, any governmental
authority, bureau or agency in connection with the execution, delivery or
performance of this Agreement and the Related Documents, except for such as
have been obtained, effected or made.
(e) Binding Obligation. This Agreement constitutes a legal, valid and
binding obligation of Purchaser, enforceable against Purchaser in
accordance with its terms, subject, as to enforceability, to applicable
bankruptcy, insolvency, reorganization, conservatorship, receivership,
liquidation and other similar laws and to general equitable principles.
(f) No Violation. The execution, delivery and performance by Purchaser
of this Agreement, the consummation of the transactions contemplated by
this Agreement and the Related Documents and the fulfillment of the terms
of this Agreement and the Related Documents do not and will not conflict
with, result in any breach of any of the
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terms and provisions of, or constitute (with or without notice or lapse of
time) a default under, the certificate of incorporation or bylaws of
Purchaser, or conflict with or breach any of the terms or provisions of, or
constitute (with or without notice or lapse of time) a default under, any
indenture, agreement, mortgage, deed of trust or other instrument to which
Purchaser is a party or by which Purchaser is bound or to which any of its
properties are subject, or result in the creation or imposition of any Lien
upon any of its properties pursuant to the terms of any such indenture,
agreement, mortgage, deed of trust or other instrument (other than the Sale
and Servicing Agreement and the Spread Account Agreement), or violate any
law, order, rule or regulation, applicable to Purchaser or its properties,
of any federal or state regulatory body, any court, administrative agency,
or other governmental instrumentality having jurisdiction over Purchaser or
any of its properties.
(g) No Proceedings. There are no proceedings or investigations
pending, or, to the knowledge of Purchaser, threatened against Purchaser,
before any court, regulatory body, administrative agency, or other tribunal
or governmental instrumentality having jurisdiction over Purchaser or its
properties: (i) asserting the invalidity of this Agreement or any of the
Related Documents, (ii) seeking to prevent the consummation of any of the
transactions contemplated by this Agreement or any of the Related
Documents, (iii) seeking any determination or ruling that might materially
and adversely affect the performance by Purchaser of its obligations under,
or the validity or enforceability of, this Agreement or any of the Related
Documents or (iv) that may adversely affect the federal or state income tax
attributes of, or seeking to impose any excise, franchise, transfer or
similar tax upon, the transfer and acquisition of the Receivables and the
Other Conveyed Property hereunder or the transfer of the Receivables and
the Other Conveyed Property to the Issuer pursuant to the Sale and
Servicing Agreement.
In the event of any breach of a representation and warranty made by
Purchaser hereunder, Seller covenants and agrees that it will not take any
action to pursue any remedy that it may have hereunder, in law, in equity or
otherwise, until a year and a day have passed since the date on which all Notes,
Certificates, pass-through certificates or other similar securities issued by
Purchaser, or a trust or similar vehicle formed by Purchaser, have been paid in
full. Seller and Purchaser agree that damages will not be an adequate remedy for
such breach and that this covenant may be specifically enforced by Purchaser,
Issuer or by the Trustee on behalf of the Noteholders and Owner Trustee on
behalf of the Certificateholder.
ARTICLE IV.
COVENANTS OF SELLER
SECTION 4.1 Protection of Title of Purchaser.
(a) At or prior to the Closing Date, Seller shall have filed or caused
to be filed a UCC-1 financing statement, naming Seller as seller or debtor,
naming Purchaser as purchaser or secured party and describing the Initial
Receivables and the Initial Other Conveyed Property being sold by it to
Purchaser as collateral, with the office of the Secretary of State of the
State of Delaware and in such other locations as Purchaser shall
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have required. At or prior to any Subsequent Transfer Date, Seller shall
file or cause to be filed a UCC-1 financing statement naming Seller as
seller or debtor, naming the Purchaser as purchaser or secured party and
describing the Subsequent Receivables and the Subsequent Other Conveyed
Property being sold by it to the Purchaser as collateral, with the office
of the Secretary of State of the State of Delaware and in such other
locations as Purchaser shall require. From time to time thereafter, Seller
shall execute and file such financing statements and cause to be executed
and filed such continuation statements, all in such manner and in such
places as may be required by law fully to preserve, maintain and protect
the interest of Purchaser under this Agreement, of the Issuer under the
Sale and Servicing Agreement and of the Trust Collateral Agent under the
Indenture in the Receivables and the Other Conveyed Property and in the
proceeds thereof. Seller shall deliver (or cause to be delivered) to
Purchaser, the Trust Collateral Agent and the Insurer file-stamped copies
of, or filing receipts for, any document filed as provided above, as soon
as available following such filing. In the event that Seller fails to
perform its obligations under this subsection, Purchaser, Issuer or the
Trust Collateral Agent may do so, at the expense of such Seller. In
furtherance of the foregoing, the Seller hereby authorizes the Purchaser,
the Issuer or the Trust Collateral Agent to file a record or records (as
defined in the applicable UCC), including, without limitation, financing
statements, in all jurisdictions and with all filing offices as each may
determine, in its sole discretion, are necessary or advisable to perfect
the security interest granted to the Purchaser pursuant to Section 6.9 of
this Agreement. Such financing statements may describe the collateral in
the same manner as described herein or may contain an indication or
description of collateral that describes such property in any other manner
as such party may determine, in its sole discretion, is necessary,
advisable or prudent to ensure the perfection of the security interest in
the collateral granted to the Purchaser herein.
(b) Seller shall not change its name, identity, state of incorporation
or corporate structure in any manner that would, could or might make any
financing statement or continuation statement filed by Seller (or by
Purchaser, Issuer or the Trust Collateral Agent on behalf of Seller) in
accordance with paragraph (a) above seriously misleading within the meaning
of ss.9-506 of the applicable UCC, unless they shall have given Purchaser,
Issuer and the Trust Collateral Agent at least 60 days' prior written
notice thereof, and shall promptly file appropriate amendments to all
previously filed financing statements and continuation statements.
(c) Seller shall give Purchaser, the Issuer, the Insurer (so long as
an Insurer Default shall not have occurred and be continuing) and the Trust
Collateral Agent at least 60 days' prior written notice of any relocation
that would result in a change of location of the debtor within the meaning
of Section 9-307 of the applicable UCC. Seller shall at all times maintain
each office from which it services Receivables and its principal executive
office within the United States of America.
(d) Prior to the Closing Date and with respect to Subsequent
Receivables, the Subsequent Transfer Date, Seller has maintained accounts
and records as to each Receivable accurately and in sufficient detail to
permit (i) the reader thereof to know at any time as of or prior to the
Closing Date and with respect to Subsequent Receivables,
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the Subsequent Transfer Date, the status of such Receivable, including
payments and recoveries made and payments owing (and the nature of each)
and (ii) reconciliation between payments or recoveries on (or with respect
to) each Receivable and the Principal Balance as of the Closing Date and
with respect to Subsequent Receivables, the Subsequent Transfer Date.
Seller shall maintain its computer systems so that, from and after the time
of sale under this Agreement of the Receivables to Purchaser, and the
conveyance of the Receivables by Purchaser to the Issuer, Seller's master
computer records (including archives) that shall refer to a Receivable
indicate clearly that such Receivable has been sold to Purchaser and has
been conveyed by Purchaser to the Issuer. Indication of the Issuer's
ownership of a Receivable shall be deleted from or modified on Seller's
computer systems when, and only when, the Receivable shall become a
Purchased Receivable or shall have been paid in full.
(e) If at any ▇▇▇▇ ▇▇▇▇▇▇ shall propose to sell, grant a security
interest in, or otherwise transfer any interest in any motor vehicle
receivables to any prospective purchaser, lender or other transferee,
Seller shall give to such prospective purchaser, lender, or other
transferee computer tapes, records, or print-outs (including any restored
from archives) that, if they shall refer in any manner whatsoever to any
Receivable (other than a Purchased Receivable), shall indicate clearly that
such Receivable has been sold to Purchaser, sold by Purchaser to Issuer,
and is owned by the Issuer.
SECTION 4.2 Other Liens or Interests. Except for the conveyances
hereunder, Seller will not sell, pledge, assign or transfer to any other Person,
or grant, create, incur, assume or suffer to exist any Lien on the Receivables
or the Other Conveyed Property or any interest therein, and Seller shall defend
the right, title, and interest of Purchaser and the Issuer in and to the
Receivables and the Other Conveyed Property against all claims of third parties
claiming through or under Seller.
SECTION 4.3 Costs and Expenses. Seller shall pay all reasonable
costs and disbursements in connection with the performance of its obligations
hereunder and under its Related Documents.
SECTION 4.4 Indemnification.
(a) Seller shall defend, indemnify and hold harmless Purchaser, the
Issuer, the Trust Collateral Agent, the Trustee, the Backup Servicer, the
Owner Trustee, the Noteholders and the Certificateholder from and against
any and all costs, expenses, losses, damages, claims, and liabilities,
arising out of or resulting from any breach of any of Seller's
representations and warranties contained herein.
(b) Seller shall defend, indemnify and hold harmless Purchaser, the
Issuer, the Trust Collateral Agent, the Trustee, the Backup Servicer, the
Owner Trustee, the Noteholders and the Certificateholder from and against
any and all costs, expenses, losses, damages, claims, and liabilities,
arising out of or resulting from the use, ownership or operation by Seller
or any affiliate thereof of a Financed Vehicle.
10
(c) Seller shall defend, indemnify and hold harmless Purchaser, the
Issuer, the Trust Collateral Agent, the Trustee, the Backup Servicer, the
Owner Trustee, the Noteholders and the Certificateholder from and against
any and all costs, expenses, losses, damages, claims and liabilities
arising out of or resulting from any action taken, or failed to be taken,
by it in respect of any portion of the Receivables other than in accordance
with this Agreement or the Sale and Servicing Agreement.
(d) Seller agrees to pay, and shall defend, indemnify and hold
harmless Purchaser, the Issuer, the Trust Collateral Agent, the Trustee,
the Backup Servicer, the Owner Trustee, the Noteholders and the
Certificateholder from and against any taxes that may at any time be
asserted against Purchaser, the Issuer, the Trust Collateral Agent, the
Trustee, the Backup Servicer, the Owner Trustee, the Noteholders and the
Certificateholder with respect to the transactions contemplated in this
Agreement, including, without limitation, any sales, gross receipts,
general corporation, tangible or intangible personal property, privilege,
or license taxes (but not including any taxes asserted with respect to, and
as of the date of, the sale, transfer and assignment of the Receivables and
the Other Conveyed Property to Purchaser and by Purchaser to the Issuer or
the issuance and original sale of the Notes or issuance of the Certificate,
or asserted with respect to ownership of the Receivables and Other Conveyed
Property which shall be indemnified by Seller pursuant to clause (e) below,
or federal, state or other income taxes, arising out of distributions on
the Notes or the Certificate or transfer taxes arising in connection with
the transfer of the Notes or the Certificate) and costs and expenses in
defending against the same, arising by reason of the acts to be performed
by Seller under this Agreement or imposed against such Persons.
(e) Seller agrees to pay, and to indemnify, defend and hold harmless
Purchaser, the Issuer, the Trust Collateral Agent, the Trustee, the Backup
Servicer, the Owner Trustee, the Noteholders and the Certificateholder
from, any taxes which may at any time be asserted against such Persons with
respect to, and as of the date of, the conveyance or ownership of the
Receivables or the Other Conveyed Property hereunder and under any
Subsequent Purchase Agreement and the conveyance or ownership of the
Receivables under the Sale and Servicing Agreement or the issuance and
original sale of the Notes or the issuance of the Certificate, including,
without limitation, any sales, gross receipts, personal property, tangible
or intangible personal property, privilege or license taxes (but not
including any federal or other income taxes, including franchise taxes,
arising out of the transactions contemplated hereby or transfer taxes
arising in connection with the transfer of the Notes or the Certificate)
and costs and expenses in defending against the same, arising by reason of
the acts to be performed by Seller under this Agreement or imposed against
such Persons.
(f) Seller shall defend, indemnify, and hold harmless Purchaser, the
Issuer, the Trust Collateral Agent, the Trustee, the Backup Servicer, the
Owner Trustee, the Noteholders and the Certificateholder from and against
any and all costs, expenses, losses, claims, damages, and liabilities to
the extent that such cost, expense, loss, claim, damage, or liability arose
out of, or was imposed upon Purchaser, the Issuer, the Trust Collateral
Agent, the Trustee, the Backup Servicer, the Owner Trustee, the Noteholders
or the Certificateholder through the negligence, willful misfeasance, or
bad faith of Seller
11
in the performance of its duties under this Agreement or by reason of
reckless disregard of Seller's obligations and duties under this Agreement.
(g) Seller shall indemnify, defend and hold harmless Purchaser, the
Issuer, the Trust Collateral Agent, the Trustee, the Backup Servicer, the
Owner Trustee, the Noteholders and the Certificateholder from and against
any loss, liability or expense incurred by reason of the violation by
Seller of federal or state securities laws in connection with the
registration or the sale of the Notes.
(h) Seller shall indemnify, defend and hold harmless Purchaser, the
Issuer, the Trust Collateral Agent, the Trustee, the Backup Servicer, the
Owner Trustee, the Noteholders and the Certificateholder from and against
any loss, liability or expense imposed upon, or incurred by, Purchaser, the
Issuer, the Trust Collateral Agent, the Trustee, the Backup Servicer, the
Owner Trustee, the Noteholders or the Certificateholder as result of the
failure of any Receivable, or the sale of the related Financed Vehicle, to
comply with all requirements of applicable law.
(i) Seller shall defend, indemnify, and hold harmless Purchaser from
and against all costs, expenses, losses, claims, damages, and liabilities
arising out of or incurred in connection with the acceptance or performance
of Seller's trusts and duties as Servicer under the Sale and Servicing
Agreement, except to the extent that such cost, expense, loss, claim,
damage, or liability shall be due to the willful misfeasance, bad faith, or
negligence (except for errors in judgment) of Purchaser.
(j) Seller shall indemnify the Owner Trustee and its officers,
directors, successors, assigns, agents and servants jointly and severally
with the Purchaser pursuant to Section 7.2 of the Trust Agreement.
Indemnification under this Section 4.4 shall include reasonable fees
and expenses of counsel and expenses of litigation and shall survive payment of
the Notes and the Certificate. The indemnity obligations hereunder shall be in
addition to any obligation that Seller may otherwise have.
ARTICLE V.
REPURCHASES
SECTION 5.1 Repurchase of Receivables Upon Breach of Warranty. Upon
the occurrence of a Repurchase Event, Seller shall, unless the breach which is
the subject of such Repurchase Event shall have been cured in all material
respects, repurchase the Receivable relating thereto from the Issuer and,
simultaneously with the repurchase of the Receivable, Seller shall deposit the
Purchase Amount in full, without deduction or offset, to the Collection Account,
pursuant to Section 3.2 of the Sale and Servicing Agreement. It is understood
and agreed that, except as set forth in Section 6.1 hereof, the obligation of
Seller to repurchase any Receivable, as to which a breach occurred and is
continuing, shall, if such obligation is fulfilled, constitute the sole remedy
against Seller for such breach available to Purchaser, the Issuer, the Insurer,
the Backup Servicer, the Noteholders, the Certificateholder, the Trust
Collateral Agent on behalf of
12
the Noteholders or the Owner Trustee on behalf of the Certificateholder. The
provisions of this Section 5.1 are intended to grant the Issuer and the Trust
Collateral Agent a direct right against Seller to demand performance hereunder,
and in connection therewith, Seller waives any requirement of prior demand
against Purchaser with respect to such repurchase obligation. Any such
repurchase shall take place in the manner specified in Section 3.2 of the Sale
and Servicing Agreement. Notwithstanding any other provision of this Agreement
or the Sale and Servicing Agreement to the contrary, the obligation of Seller
under this Section shall not terminate upon a termination of Seller as Servicer
under the Sale and Servicing Agreement and shall be performed in accordance with
the terms hereof notwithstanding the failure of the Servicer or Purchaser to
perform any of their respective obligations with respect to such Receivable
under the Sale and Servicing Agreement.
In addition to the foregoing and notwithstanding whether the related
Receivable shall have been purchased by Seller, Seller shall indemnify the
Issuer, the Trust Collateral Agent, the Trustee, the Backup Servicer, the Owner
Trustee, the Insurer, the Noteholders and the Certificateholder from and against
all costs, expenses, losses, damages, claims and liabilities, including
reasonable fees and expenses of counsel, which may be asserted against or
incurred by any of them as a result of third party claims arising out of the
events or facts giving rise to such Repurchase Events.
SECTION 5.2 Reassignment of Purchased Receivables. Upon deposit in
the Collection Account of the Purchase Amount of any Receivable repurchased by
Seller under Section 5.1 hereof, Purchaser and the Issuer shall take such steps
as may be reasonably requested by Seller in order to assign to Seller all of
Purchaser's and the Issuer's right, title and interest in and to such Receivable
and all security and documents and all Other Conveyed Property conveyed to
Purchaser and the Issuer directly relating thereto, without recourse,
representation or warranty, except as to the absence of Liens created by or
arising as a result of actions of Purchaser or the Issuer. Such assignment shall
be a sale and assignment outright, and not for security. If, following the
reassignment of a Purchased Receivable, in any enforcement suit or legal
proceeding, it is held that Seller may not enforce any such Receivable on the
ground that it shall not be a real party in interest or a holder entitled to
enforce the Receivable, Purchaser and the Issuer shall, at the expense of
Seller, take such steps as Seller deems reasonably necessary to enforce the
Receivable, including bringing suit in Purchaser's or in the Issuer's name.
SECTION 5.3 Waivers. No failure or delay on the part of Purchaser,
or the Issuer as assignee of Purchaser, in exercising any power, right or remedy
under this Agreement shall operate as a waiver thereof, nor shall any single or
partial exercise of any such power, right or remedy preclude any other or future
exercise thereof or the exercise of any other power, right or remedy.
ARTICLE VI.
MISCELLANEOUS
SECTION 6.1 Liability of Seller. Seller shall be liable in
accordance herewith only to the extent of the obligations in this Agreement
specifically undertaken by Seller and the representations and warranties of
Seller.
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SECTION 6.2 Merger or Consolidation of Seller or Purchaser. Any
corporation or other entity (i) into which Seller or Purchaser may be merged or
consolidated, (ii) resulting from any merger or consolidation to which Seller or
Purchaser is a party or (iii) succeeding to the business of Seller or Purchaser,
in the case of Purchaser, which corporation has a certificate of incorporation
containing provisions relating to limitations on business and other matters
substantively identical to those contained in Purchaser's certificate of
incorporation, provided that in any of the foregoing cases such corporation
shall execute an agreement of assumption to perform every obligation of Seller
or Purchaser, as the case may be, under this Agreement and, whether or not such
assumption agreement is executed, shall be the successor to Seller or Purchaser,
as the case may be, hereunder (without relieving Seller or Purchaser of their
responsibilities hereunder, if it survives such merger or consolidation) without
the execution or filing of any document or any further action by any of the
parties to this Agreement. Notwithstanding the foregoing, so long as an Insurer
Default shall not have occurred and be continuing, Purchaser shall not merge or
consolidate with any other Person or permit any other Person to become the
successor to Purchaser's business without the prior written consent of the
Insurer. Seller or Purchaser shall promptly inform the other party, the Issuer,
the Trust Collateral Agent, the Owner Trustee and, so long as an Insurer Default
shall not have occurred and be continuing, the Insurer of such merger,
consolidation or purchase and assumption. Notwithstanding the foregoing, as a
condition to the consummation of the transactions referred to in clauses (i),
(ii) and (iii) above, (x) immediately after giving effect to such transaction,
no representation or warranty made pursuant to Sections 3.1 and 3.2 of this
Agreement shall have been breached (for purposes hereof, such representations
and warranties shall speak as of the date of the consummation of such
transaction) and no event that, after notice or lapse of time, or both, would
become an event of default under the Insurance Agreement, shall have occurred
and be continuing, (y) Seller or Purchaser, as applicable, shall have delivered
written notice of such consolidation, merger or purchase and assumption to the
Rating Agencies prior to the consummation of such transaction and shall have
delivered to the Issuer and the Trust Collateral Agent an Officer's Certificate
and an Opinion of Counsel each stating that such consolidation, merger or
succession and such agreement of assumption comply with this Section 6.2 and
that all conditions precedent, if any, provided for in this Agreement relating
to such transaction have been complied with, and (z) Seller or Purchaser, as
applicable, shall have delivered to the Issuer and the Trust Collateral Agent an
Opinion of Counsel, stating, in the opinion of such counsel, either (A) all
financing statements and continuation statements and amendments thereto have
been executed and filed that are necessary to preserve and protect the interest
of the Issuer and the Trust Collateral Agent in the Receivables and reciting the
details of the filings or (B) no such action shall be necessary to preserve and
protect such interest.
SECTION 6.3 Limitation on Liability of Seller and Others. Seller and
any director, officer, employee or agent thereof may rely in good faith on the
advice of counsel or on any document of any kind prima facie properly executed
and submitted by any Person respecting any matters arising under this Agreement.
Seller shall not be under any obligation to appear in, prosecute or defend any
legal action that is not incidental to its obligations under this Agreement or
its Related Documents and that in its opinion may involve it in any expense or
liability.
SECTION 6.4 Seller May Own Notes or the Certificate. Subject to the
provisions of the Sale and Servicing Agreement, Seller and any Affiliate of
Seller may in their
14
individual or any other capacity become the owner or pledgee of Notes or the
Certificate with the same rights as they would have if they were not Seller or
an Affiliate thereof.
SECTION 6.5 Amendment.
(a) This Agreement may be amended by Seller and Purchaser with the
prior written consent of the Insurer (so long as an Insurer Default shall
not have occurred and be continuing) but without the consent of the Trust
Collateral Agent, the Owner Trustee, the Certificateholder or any of the
Noteholders (i) to cure any ambiguity or (ii) to correct any provisions in
this Agreement; provided, however, that such action shall not, as evidenced
by an Opinion of Counsel delivered to the Issuer, the Owner Trustee and the
Trust Collateral Agent, adversely affect in any material respect the
interests of any Certificateholder or Noteholder.
(b) This Agreement may also be amended from time to time by Seller and
Purchaser, with the prior written consent of the Insurer (so long as an
Insurer Default shall not have occurred and be continuing) and with the
consent of the Trust Collateral Agent and, if required, the
Certificateholder and the Noteholders, in accordance with the Sale and
Servicing Agreement, for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this
Agreement, or of modifying in any manner the rights of the
Certificateholder or Noteholders; provided, however, the Seller provides
the Trust Collateral Agent with an Opinion of Counsel, (which may be
provided by the Seller's internal counsel) that no such amendment shall
increase or reduce in any manner the amount of, or accelerate or delay the
timing of, collections of payments on Receivables or distributions that
shall be required to be made on any Note or Certificate.
(c) Prior to the execution of any such amendment or consent, Seller
shall have furnished written notification of the substance of such
amendment or consent to each Rating Agency.
(d) It shall not be necessary for the consent of Certificateholder or
Noteholders pursuant to this Section to approve the particular form of any
proposed amendment or consent, but it shall be sufficient if such consent
shall approve the substance thereof. The manner of obtaining such consents
and of evidencing the authorization of the execution thereof by
Certificateholder or Noteholders shall be subject to such reasonable
requirements as the Trust Collateral Agent may prescribe, including the
establishment of record dates. The consent of a Holder of a Certificate or
a Note given pursuant to this Section or pursuant to any other provision of
this Agreement shall be conclusive and binding on such Holder and on all
future Holders of such Certificate or Note and of any Certificate or Note
issued upon the transfer thereof or in exchange thereof or in lieu thereof
whether or not notation of such consent is made upon the Certificate or
Note.
SECTION 6.6 Notices. All demands, notices and communications to
Seller or Purchaser hereunder shall be in writing, personally delivered, or sent
by telecopier (subsequently confirmed in writing), reputable overnight courier
or mailed by certified mail, return receipt
15
requested, and shall be deemed to have been given upon receipt (a) in the case
of Seller, to AmeriCredit Financial Services, Inc., ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, Attention: Chief Financial Officer, or (b) in the
case of Purchaser, to AFS Funding Corp., ▇▇▇ ▇▇▇▇▇▇ ▇▇., ▇▇▇▇▇ ▇▇▇, ▇▇▇▇, ▇▇▇▇▇▇
▇▇▇▇▇, Attention: Chief Financial Officer, or such other address as shall be
designated by a party in a written notice delivered to the other party or to the
Issuer, Owner Trustee or the Trust Collateral Agent, as applicable.
SECTION 6.7 Merger and Integration. Except as specifically stated
otherwise herein, this Agreement and Related Documents set forth the entire
understanding of the parties relating to the subject matter hereof, and all
prior understandings, written or oral, are superseded by this Agreement and the
Related Documents. This Agreement may not be modified, amended, waived or
supplemented except as provided herein.
SECTION 6.8 Severability of Provisions. If any one or more of
the covenants, provisions or terms of this Agreement shall be for any reason
whatsoever held invalid, then such covenants, provisions or terms shall be
deemed severable from the remaining covenants, provisions or terms of this
Agreement and shall in no way affect the validity or enforceability of the other
provisions of this Agreement.
SECTION 6.9 Intention of the Parties.
(a) The execution and delivery of this Agreement shall constitute an
acknowledgment by Seller and Purchaser that they intend that the assignment
and transfer herein contemplated constitute a sale and assignment outright,
and not for security, of the Receivables and the Other Conveyed Property,
conveying good title thereto free and clear of any Liens, from Seller to
Purchaser, and that the Receivables and the Other Conveyed Property shall
not be a part of Seller's estates in the event of the bankruptcy,
reorganization, arrangement, insolvency or liquidation proceeding, or other
proceeding under any federal or state bankruptcy or similar law, or the
occurrence of another similar event, of, or with respect to Seller. In the
event that such conveyance is determined to be made as security for a loan
made by Purchaser, the Issuer, the Noteholders or the Certificateholder to
Seller, the parties intend that Seller shall have granted to Purchaser a
security interest in all of Seller's right, title and interest in and to
(collectively, the "Collateral"):
(1) the Initial Receivables, the Subsequent Receivables and all
moneys received thereon after the Initial Cutoff Date,
(2) the Initial Other Conveyed Property and the Subsequent Other
Conveyed Property conveyed to Purchaser by Seller pursuant to this
Agreement including (a) an assignment of the security interests in the
Financed Vehicles granted by Obligors pursuant to the Initial Receivables,
the Subsequent Receivables and any other interest of the Seller in such
Financed Vehicles, (b) any proceeds and the right to receive any proceeds
with respect to the Initial Receivables and the Subsequent Receivables from
claims on any physical damage, credit life or disability insurance policies
covering Financed Vehicles or Obligors and any proceeds from the
liquidation of the Initial Receivables, (c) any proceeds from any Initial
Receivable and Subsequent Receivable
16
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 Initial Receivable and Subsequent
Receivable repurchased by a Third-Party Lender, pursuant to an Auto
Loan Purchase and Sale Agreement, as a result of a breach of
representation or warranty in the related Auto Loan Purchase and Sale
Agreement, (e) all rights under any Service Contracts on the related
Financed Vehicles, (f) the related Receivables Files and (g) the
proceeds of any and all of the foregoing,
(3) all of the Seller's (a) Accounts, (b) Chattel Paper, (c)
Documents, (d) Instruments, and (e) General Intangibles (as such terms
are defined in the applicable UCC) relating to the property described
in items (1) and (2), and
(4) all proceeds and investments with respect to items (1),
(2), and (3) above.
(b) This Agreement shall constitute a security agreement under
applicable law.
SECTION 6.10 Governing Law. This Agreement shall be construed in
accordance with the laws of the State of New York without regard to the
principles of conflicts of laws thereof and the obligations, rights and remedies
of the parties under this Agreement shall be determined in accordance with such
laws.
SECTION 6.11 Counterparts. For the purpose of facilitating the
execution of this Agreement and for other purposes, this Agreement may be
executed simultaneously in any number of counterparts, each of which
counterparts shall be deemed to be an original, and all of which counterparts
shall constitute but one and the same instrument.
SECTION 6.12 Conveyance of the Receivables and the Other Conveyed
Property to the Issuer. Seller acknowledge that Purchaser intends, pursuant to
the Sale and Servicing Agreement, to convey the Receivables and the Other
Conveyed Property, together with its rights under this Agreement, to the Issuer
on the date hereof and on the Subsequent Transfer Date in the case of Subsequent
Receivables. Seller acknowledges and consents to such conveyance and pledge and
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 Insurer, the Issuer,
the Owner Trustee, the Trust Collateral Agent, the Noteholders and the
Certificateholder. In furtherance of the foregoing, Seller covenants and agrees
to perform its duties and obligations hereunder, in accordance with the terms
hereof for the benefit of the Insurer, the Issuer, the Owner Trustee, the Trust
Collateral Agent, the Noteholders and the Certificateholder and that,
notwithstanding anything to the contrary in this Agreement, Seller shall be
directly liable to the Issuer, the Owner Trustee, the Trust Collateral Agent,
the Noteholders and the Certificateholder (notwithstanding any failure by the
Servicer, the Backup Servicer or the Purchaser to perform its respective duties
and obligations hereunder or under Related Documents) and that the Trust
Collateral Agent may enforce the duties and obligations of Seller under this
Agreement against Seller for the benefit of the Insurer, the Owner Trustee, the
Trust Collateral Agent, the Noteholders and the Certificateholder.
17
SECTION 6.13 Nonpetition Covenant. Neither Purchaser nor Seller
shall petition or otherwise invoke the process of any court or government
authority for the purpose of commencing or sustaining a case against the
Purchaser or the Issuer under any federal or state bankruptcy, insolvency or
similar law or appointing a receiver, liquidator, assignee, trustee, custodian,
sequestrator or other similar official of the Purchaser or the Issuer or any
substantial part of their respective property, or ordering the winding up or
liquidation of the affairs of the Purchaser or the Issuer.
18
IN WITNESS WHEREOF, the parties have caused this Purchase
Agreement to be duly executed by their respective officers as of the day and
year first above written.
AFS FUNDING CORP., as Purchaser
By /s/ ▇▇▇▇▇ ▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: Vice President, Structured
Finance
AMERICREDIT FINANCIAL SERVICES,
INC., as Seller
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Executive Vice President
and Treasurer
Accepted:
JPMORGAN CHASE BANK,
as Trustee and Trust Collateral Agent
By /s/ ▇▇▇▇ ▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇
Title: Trust Officer
[Purchase Agreement]
SCHEDULE A
SCHEDULE OF RECEIVABLES
[On File with AmeriCredit, the Trustee and ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ 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 relating thereto.
2. No Fraud or Misrepresentation. Each Receivable was originated (i) by
AmeriCredit, (ii) by a Dealer and was sold by the Dealer to AmeriCredit, or
(iii) by a Third-Party Lender and was sold by the Third-Party Lender to
AmeriCredit, and was sold by AmeriCredit to AFS Funding without any fraud or
misrepresentation on the part of such Dealer or Third-Party Lender in any case.
3. Compliance with Law. All requirements of applicable federal, state and
local laws, and regulations thereunder (including, without limitation, usury
laws, the Federal Truth-in-Lending Act, the Equal Credit Opportunity Act, the
Fair Credit Billing Act, the Fair Credit Reporting Act, the Fair Debt Collection
Practices Act, the Federal Trade Commission Act, the ▇▇▇▇-▇▇▇▇▇▇▇▇ Warranty Act,
the Federal Reserve Board's Regulations "B" and "Z" (including amendments to the
Federal Reserve's Official Staff Commentary to Regulation Z, effective October
1, 1998, concerning negative equity loans), the Soldiers' and Sailors' Civil
Relief Act of 1940, each applicable state Motor Vehicle Retail Installment Sales
Act, and state adaptations of the National Consumer Act and of the Uniform
Consumer Credit Code and other consumer credit laws and equal credit opportunity
and disclosure laws) in respect of the Receivables and the Financed Vehicles,
have been complied with in all material respects, and each Receivable and the
sale of the Financed Vehicle evidenced by each Receivable complied at the time
it was
originated or made and now complies in all material respects with all applicable
legal requirements.
4. Origination. Each Receivable was originated in the United States.
5. Binding Obligation. Each Receivable represents the genuine, legal,
valid and binding payment obligation of the Obligor thereon, enforceable by the
holder thereof in accordance with its terms, except (A) as enforceability may be
limited by bankruptcy, insolvency, reorganization or similar laws affecting the
enforcement of creditors' rights generally and by equitable limitations on the
availability of specific remedies, regardless of whether such enforceability is
considered in a proceeding in equity or at law and (B) as such Receivable may be
modified by the application after the Cutoff Date of the Soldiers' and Sailors'
Civil Relief Act of 1940, as amended; and all parties to each Receivable had
full legal capacity to execute and deliver such Receivable and all other
documents related thereto and to grant the security interest purported to be
granted thereby.
6. No Government Obligor. No Obligor is the United States of America or
any State or any agency, department, subdivision or instrumentality thereof.
7. Obligor Bankruptcy. At the related Cutoff Date no Obligor had been
identified on the records of AmeriCredit as being the subject of a current
bankruptcy proceeding.
8. Schedules of Receivables. The information set forth in the Schedules
of Receivables has been produced from the Electronic Ledger and was true and
correct in all material respects as of the close of business on the related
Cutoff Date.
9. Marking Records. By the Closing Date or Subsequent Transfer Date, as
applicable, AmeriCredit will have caused the portions of the Electronic Ledger
relating to the Receivables to be clearly and unambiguously marked to show that
the Receivables have been sold to AFS Funding by AmeriCredit and resold by the
AFS Funding to the Trust in accordance with the terms of the Sale and Servicing
Agreement.
10. Computer Tape. The Computer Tape made available by AmeriCredit to AFS
Funding and to the Trust on the Closing Date or Subsequent Transfer Date, as
applicable, was complete and accurate as of the related Cutoff Date and includes
a description of the same Receivables that are described in the Schedule of
Receivables.
11. Adverse Selection. No selection procedures adverse to the Noteholders
or the Insurer were utilized in selecting the Receivables from those receivables
owned by AmeriCredit which met the selection criteria contained in the Sale and
Servicing Agreement.
12. Chattel Paper. The Receivables constitute chattel paper within the
meaning of the UCC as in effect in the States of Texas, New York and Delaware.
13. One Original. There is only one original executed copy of each
Receivable.
14. Receivable Files Complete. There exists a Receivable File pertaining
to each Receivable and such Receivable File contains (a) a fully executed
original of the Receivable, (b)
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the original executed credit application, or a paper or electronic copy thereof
and (c) the original Lien Certificate or application therefor. Each of such
documents which is required to be signed by the Obligor has been signed by the
Obligor in the appropriate spaces. All blanks on any form have been properly
filled in and each form has otherwise been correctly prepared. The complete
Receivable File for each Receivable currently is in the possession of the
Custodian.
15. Receivables in Force. No Receivable has been satisfied, subordinated
or rescinded, and the Financed Vehicle securing each such Receivable has not
been released from the lien of the related Receivable in whole or in part. No
terms of any Receivable have been waived, altered or modified in any respect
since its origination, except by instruments or documents identified in the
Receivable File. No Receivable has been modified as a result of application of
the Soldiers' and Sailors' Civil Relief Act of 1940, as amended.
16. Lawful Assignment. No Receivable was originated in, or is subject to
the laws of, any jurisdiction the laws of which would make unlawful, void or
voidable the sale, transfer and assignment of such Receivable under this
Agreement or pursuant to transfers of the Notes.
17. Good Title. Immediately prior to the conveyance of the Receivables to
AFS Funding pursuant to this Agreement or Subsequent Purchase Agreement, as
applicable, AmeriCredit was the sole owner thereof and had good and indefeasible
title thereto, free of any Lien and, upon execution and delivery of this
Agreement by AmeriCredit, AFS Funding shall have good and indefeasible title to
and will be the sole owner of such Receivables, free of any Lien. No Dealer or
Third-Party Lender has a participation in, or other right to receive, proceeds
of any Receivable. AmeriCredit has not taken any action to convey any right to
any Person that would result in such Person having a right to payments received
under the related Insurance Policies or the related Dealer Agreements, Auto Loan
Purchase and Sale Agreements, Dealer Assignments, or Third-Party Lender
Assignments or to payments due under such Receivables.
18. Security Interest in Financed Vehicle. Each Receivable created or
shall create a valid, binding and enforceable first priority security interest
in favor of AmeriCredit in the Financed Vehicle. The Lien Certificate and
original certificate of title for each Financed Vehicle show, or if a new or
replacement Lien Certificate is being applied for with respect to such Financed
Vehicle the Lien Certificate will be received within 180 days of the Closing
Date or Subsequent Transfer Date, as applicable, and will show AmeriCredit named
as the original secured party under each Receivable as the holder of a first
priority security interest in such Financed Vehicle. With respect to each
Receivable for which the Lien Certificate has not yet been returned from the
Registrar of Titles, AmeriCredit has applied for or received written evidence
from the related Dealer or Third-Party Lender that such Lien Certificate showing
AmeriCredit as first lienholder has been applied for and AmeriCredit's security
interest has been validly assigned by AmeriCredit to AFS Funding pursuant to
this Agreement. Immediately after the sale, transfer and assignment thereof by
AmeriCredit to AFS Funding, each Receivable will be secured by an enforceable
and perfected first priority security interest in the Financed Vehicle in favor
of AFS Funding as secured party, which security interest is prior to all other
Liens upon and security interests in such Financed Vehicle which now exist or
may hereafter arise or be created (except, as to priority, for any lien for
taxes, labor or materials affecting a Financed Vehicle). As of the related
Cutoff Date there were no Liens or claims for taxes, work, labor or
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materials affecting a Financed Vehicle which are or may be Liens prior or equal
to the Liens of the related Receivable.
19. All Filings Made. All filings (including, without limitation, UCC
filings) required to be made by any Person and actions required to be taken or
performed by any Person in any jurisdiction to give AFS Funding a first priority
perfected lien on, or ownership interest in, the Receivables and the proceeds
thereof and the Other Conveyed Property have been made, taken or performed.
20. No Impairment. AmeriCredit has not done anything to convey any right
to any Person that would result in such Person having a right to payments due
under the Receivable or otherwise to impair the rights of the Trust, the
Insurer, the Trustee, the Trust Collateral Agent and the Noteholders in any
Receivable or the proceeds thereof.
21. Receivable Not Assumable. No Receivable is assumable by another Person
in a manner which would release the Obligor thereof from such Obligor's
obligations to AmeriCredit with respect to such Receivable.
22. No Defenses. No Receivable is subject to any right of rescission,
setoff, counterclaim or defense and no such right has been asserted or
threatened with respect to any Receivable.
23. No Default. There has been no default, breach, violation or event
permitting acceleration under the terms of any Receivable (other than payment
delinquencies of not more than 30 days), and no condition exists or event has
occurred and is continuing that with notice, the lapse of time or both would
constitute a default, breach, violation or event permitting acceleration under
the terms of any Receivable, and there has been no waiver of any of the
foregoing. As of the related Cutoff Date no Financed Vehicle had been
repossessed.
24. Insurance. At the time of origination of a Receivable by AmeriCredit
or a purchase of a Receivable by AmeriCredit from a Dealer or Third-Party
Lender, each Financed Vehicle is required to be covered by a comprehensive and
collision insurance policy (i) in an amount at least equal to the lesser of (a)
its maximum insurable value or (b) the principal amount due from the Obligor
under the related Receivable, (ii) naming AmeriCredit as loss payee and (iii)
insuring against loss and damage due to fire, theft, transportation, collision
and other risks generally covered by comprehensive and collision coverage. Each
Receivable requires the Obligor to maintain physical loss and damage insurance,
naming AmeriCredit and its successors and assigns as additional insured parties,
and each Receivable permits the holder thereof to obtain physical loss and
damage insurance at the expense of the Obligor if the Obligor fails to do so. No
Financed Vehicle is insured under a policy of Force-Placed Insurance on the
related Cutoff Date.
25. Past Due. At the related Cutoff Date no Receivable was more than 30
days past due.
26. Remaining Principal Balance. At the related Cutoff Date the Principal
Balance of each Receivable set forth in the Schedules of Receivables is true and
accurate in all material respects.
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27. Certain Characteristics of Initial Receivables. (A) Each Initial
Receivable had a remaining maturity, as of the Initial Cutoff Date, of not more
than 72 months; (B) each Initial Receivable had an original maturity of not more
than 72 months; (C) not more than 40% of Receivables (calculated by Aggregate
Principal Balance) shall have an original term to maturity of 72 months; (D)
each Initial Receivable had a remaining Principal Balance as of the Initial
Cutoff Date of at least $250 and not more than $60,000; (E) each Initial
Receivable has an Annual Percentage Rate of at least 7% and not more than 33%;
(F) no Initial Receivable was more than 30 days past due as of the Initial
Cutoff Date and (G) no funds had been advanced by AmeriCredit, any Dealer, any
Third-Party Lender, or anyone acting on behalf of any of them in order to cause
any Initial Receivable to qualify under clause (F) above.
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