EXHIBIT 10.1
EXECUTION COPY
PURCHASE AGREEMENT
BETWEEN
AFS SENSUB CORP.
PURCHASER
AND
AMERICREDIT FINANCIAL SERVICES, INC.
SELLER
DATED AS OF JANUARY 9, 2007
TABLE OF CONTENTS
Page
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ARTICLE I. DEFINITIONS................................................... 1
SECTION 1.1 General.................................................. 1
SECTION 1.2 Specific Terms........................................... 1
SECTION 1.3 Usage of Terms........................................... 2
SECTION 1.4 [Reserved]............................................... 2
SECTION 1.5 No Recourse.............................................. 2
SECTION 1.6 Action by or Consent of Noteholders and
Certificateholder..................................... 3
SECTION 1.7 Material Adverse Effect.................................. 3
ARTICLE II. CONVEYANCE OF THE RECEIVABLES AND THE OTHER CONVEYED
PROPERTY.................................................. 3
SECTION 2.1 Conveyance of the Receivables and the Other Conveyed
Property.............................................. 3
SECTION 2.2 [Reserved]............................................... 4
ARTICLE III. REPRESENTATIONS AND WARRANTIES.............................. 4
SECTION 3.1 Representations and Warranties of Seller................. 4
SECTION 3.2 Representations and Warranties of Purchaser.............. 6
ARTICLE IV. COVENANTS OF SELLER.......................................... 8
SECTION 4.1 Protection of Title of Purchaser......................... 8
SECTION 4.2 Other Liens or Interests................................. 9
SECTION 4.3 Costs and Expenses....................................... 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.................... 12
SECTION 5.3 Waivers.................................................. 13
ARTICLE VI. MISCELLANEOUS................................................ 13
SECTION 6.1 Liability of Seller...................................... 13
SECTION 6.2 Merger or Consolidation of Seller or Purchaser........... 13
SECTION 6.3 Limitation on Liability of Seller and Others............. 14
SECTION 6.4 Seller May Own Notes or the Certificate.................. 14
SECTION 6.5 Amendment................................................ 14
SECTION 6.6 Notices.................................................. 15
SECTION 6.7 Merger and Integration................................... 15
SECTION 6.8 Severability of Provisions............................... 15
SECTION 6.9 Intention of the Parties................................. 15
SECTION 6.10 Governing Law............................................ 16
SECTION 6.11 Counterparts............................................. 16
SECTION 6.12 Conveyance of the Receivables and the Other Conveyed
Property to the Issuer................................ 16
SECTION 6.13 Nonpetition Covenant..................................... 17
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SECTION 6.14 Benefits of Purchase Agreement........................... 17
SCHEDULES
Schedule A - Schedule of Receivables
Schedule B - Representations and Warranties from AFS as to the Receivables
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PURCHASE AGREEMENT
THIS PURCHASE AGREEMENT, dated as of January 9, 2007, executed among
AFS SenSub Corp., a Nevada corporation, as purchaser ("Purchaser") and
AmeriCredit Financial Services, Inc., a Delaware corporation, as Seller
("Seller").
WITNESSETH:
WHEREAS, Purchaser has agreed to purchase from the Seller, and the
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 the Seller, intending to be
legally bound, hereby agree as follows:
ARTICLE I.
DEFINITIONS
SECTION 1.1 General. The specific terms defined in this Article
include the plural as well as the singular. The words "herein," "hereof" and
"hereunder" and other words of similar import refer to this Agreement as a whole
and not to any particular Article, Section or other subdivision, and Article,
Section, Schedule and Exhibit references, unless otherwise specified, refer to
Articles and Sections of and Schedules and Exhibits to this Agreement.
Capitalized terms used herein without definition shall have the respective
meanings assigned to such terms in the Sale and Servicing Agreement dated as of
January 9, 2007, by and among AFS SenSub Corp. (as Seller), AmeriCredit
Financial Services, Inc. (in its individual capacity and as Servicer),
AmeriCredit Automobile Receivables Trust 2007-A-X (as Issuer), ▇▇▇▇▇ Fargo Bank,
National Association (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 January 18, 2007.
"Issuer" means AmeriCredit Automobile Receivables Trust 2007-A-X.
"Other Conveyed Property" means all property conveyed by the Seller to
the Purchaser pursuant to this Agreement and by the Purchaser to the Trust
pursuant to Sections 2.1(a)(2) through (8) of this Agreement.
"Owner Trustee" means Wilmington Trust Company, as Owner Trustee
appointed
and acting pursuant to the Trust Agreement.
"Purchase Agreement Collateral" has the meaning specified in Section
6.9 of this Agreement.
"Related Documents" means the Notes, the Certificate, the Custodian
Agreement, the Sale and Servicing Agreement, the Indenture, the Trust Agreement,
the Note Policy, the Spread Account Agreement, the Insurance Agreement, the
Lockbox Agreement, the Swap Agreement, the Underwriting Agreement and the
Indemnification 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 Receivables" means the schedule of Receivables sold and
transferred pursuant to this Agreement which is attached hereto as Schedule A.
"Schedule of Representations" means the Schedule of Representations
and Warranties attached hereto as Schedule B.
"Trust Collateral Agent" means ▇▇▇▇▇ Fargo Bank, National Association,
as trust collateral agent and any successor trust collateral agent appointed and
acting pursuant to the Sale and Servicing Agreement.
"Trustee" means ▇▇▇▇▇ Fargo Bank, National Association, as trustee and
any successor trustee appointed and acting pursuant to the Indenture.
SECTION 1.3 Usage of Terms. With respect to all terms used in this
Agreement, the singular includes the plural and the plural the singular; words
importing any gender include the other gender; references to "writing" include
printing, typing, lithography, and other means of reproducing words in a visible
form; references to agreements and other contractual instruments include all
subsequent amendments thereto or changes therein entered into in accordance with
their respective terms and not prohibited by this Agreement or the Sale and
Servicing Agreement; references to Persons include their permitted successors
and assigns; and the terms "include" or "including" mean "include without
limitation" or "including without limitation."
SECTION 1.4 [Reserved].
SECTION 1.5 No Recourse. Without limiting the obligations of Seller
hereunder, no recourse may be taken, directly or indirectly, under this
Agreement or any certificate or other writing delivered in connection herewith
or therewith, against any stockholder, officer or director, as such, of Seller,
or of any predecessor or successor of Seller.
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SECTION 1.6 Action by or Consent of Noteholders and Certificateholder.
Whenever any provision of this Agreement refers to action to be taken, or
consented to, by Noteholders or the Certificateholder, such provision shall be
deemed to refer to the Certificateholder or Noteholder, as the case may be, of
record as of the Record Date immediately preceding the date on which such action
is to be taken, or consent given, by Noteholders or the Certificateholder.
Solely for the purposes of any action to be taken, or consented to, by
Noteholders or the Certificateholder, any Note or Certificate registered in the
name of the Seller or any Affiliate thereof shall be deemed not to be
outstanding; provided, however, that, solely for the purpose of determining
whether the Trustee or the Trust Collateral Agent is entitled to rely upon any
such action or consent, only Notes or Certificates which the Owner Trustee, the
Trustee or the Trust Collateral Agent, respectively, knows to be so owned shall
be so disregarded.
SECTION 1.7 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.
ARTICLE II.
CONVEYANCE OF THE RECEIVABLES
AND THE OTHER CONVEYED PROPERTY
SECTION 2.1 Conveyance of the Receivables and the Other Conveyed
Property.
(a) Subject to the terms and conditions of this Agreement, Seller
hereby sells, transfers, assigns, and otherwise conveys to Purchaser
without recourse (but without limitation of its obligations in this
Agreement), and Purchaser hereby purchases, all right, title and interest
of Seller in and to the following described property (collectively, the
"Receivables and the Other Conveyed Property"):
(1) the Receivables and all moneys received thereon after the
Cutoff Date;
(2) the security interests in the Financed Vehicles granted by
Obligors pursuant to the Receivables and any other interest of the Seller
in such Financed Vehicles;
(3) any proceeds and the right to receive proceeds with respect
to the Receivables from claims on any physical damage, credit life or
disability insurance policies covering Financed Vehicles or Obligors and
any proceeds from the liquidation of the Receivables;
(4) any proceeds from any Receivable repurchased by a Dealer
pursuant to a Dealer Agreement or 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
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related Dealer Agreement or Auto Loan Purchase and Sale Agreement;
(5) all rights under any Service Contracts on the related
Financed Vehicles;
(6) the related Receivable Files;
(7) all of the Seller's (i) Accounts, (ii) Chattel Paper, (iii)
Documents, (iv) Instruments and (v) General Intangibles (as such terms are
defined in the UCC) relating to the property described in (1) through (6);
and
(8) all proceeds and investments with respect to items (1)
through (7).
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 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 [Reserved]
ARTICLE III.
REPRESENTATIONS AND WARRANTIES
SECTION 3.1 Representations and Warranties of Seller. Seller makes the
following representations and warranties as of the date hereof, and as of the
Closing Date on which Purchaser relies in purchasing the Receivables and the
Other Conveyed Property and in transferring the Receivables and the Other
Conveyed Property to the Issuer under the Sale and Servicing Agreement and on
which the Insurer will rely in issuing the Note Policy and the Swap Policy. 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.
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(a) Schedule of Representations. The representations and warranties
set forth on the Schedule of Representations with respect to the
Receivables as of the date hereof and as of the Closing Date, are true and
correct.
(b) Organization and Good Standing. Seller has been duly organized and
is validly existing as a corporation in good standing under the laws of the
State of Delaware, with power and authority to own its properties and to
conduct its business as such properties are currently owned and such
business is currently conducted, and had at all relevant times, and now
has, power, authority and legal right to acquire, own and sell the
Receivables and the Other Conveyed Property to be transferred to Purchaser.
(c) Due Qualification. Seller is duly qualified to do business as a
foreign corporation in good standing, and has obtained all necessary
licenses and approvals in all jurisdictions in which the ownership or lease
of its property or the conduct of its business requires such qualification.
(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 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
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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 ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇.
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, is 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
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Other Conveyed Property or to perform Purchaser's obligations hereunder and
under the Purchaser's Related Documents.
(c) Power and Authority. Purchaser has the power, authority and legal
right to execute and deliver this Agreement and to carry out the terms
hereof and to acquire the Receivables and the Other Conveyed Property
hereunder; and the execution, delivery and performance of this Agreement
and all of the documents required pursuant hereto have been duly authorized
by Purchaser by all necessary corporate action.
(d) No Consent Required. Purchaser is not required to obtain the
consent of any other Person, or any consent, license, approval or
authorization or registration or declaration with, any governmental
authority, bureau or agency in connection with the execution, delivery or
performance of this Agreement and the Related Documents, except for such as
have been obtained, effected or made.
(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 by-laws 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
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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
Receivables and the Other Conveyed Property being sold by it to Purchaser
as collateral, with the office of the Secretary of State of the State of
Delaware and in such other locations as Purchaser shall have required. From
time to time thereafter, Seller shall execute and file such financing
statements and cause to be executed and filed such continuation statements,
all in such manner and in such places as may be required by law fully to
preserve, maintain and protect the interest of Purchaser under this
Agreement, of the Issuer under the Sale and Servicing Agreement and of the
Trust Collateral Agent under the Indenture in the Receivables and the Other
Conveyed Property and in the proceeds thereof. Seller shall deliver (or
cause to be delivered) to Purchaser, 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.
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(b) Seller shall not change its name, identity, state of incorporation
or corporate structure in any manner that would, could or might make any
financing statement or continuation statement filed by Seller (or by
Purchaser, Issuer or the Trust Collateral Agent on behalf of Seller) in
accordance with paragraph (a) above seriously misleading within the meaning
of Section 9-506 of the applicable UCC, unless they shall have given
Purchaser, Issuer, the Insurer 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
(i) each office from which it services Receivables within the United States
of America or Canada and (ii) its principal executive office within the
United States of America.
(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 Cutoff Date. Seller shall maintain its computer
systems so that, from and after the time of sale under this Agreement of
the Receivables to Purchaser, and the conveyance of the Receivables by
Purchaser to the Issuer, Seller's master computer records (including
archives) that shall refer to a Receivable indicate clearly that such
Receivable has been sold to Purchaser and has been conveyed by Purchaser to
the Issuer. Indication of the Issuer's ownership of a Receivable shall be
deleted from or modified on Seller's computer systems when, and only when,
the Receivable shall become a Purchased Receivable or a Sold Receivable or
shall have been paid in full or sold pursuant to the terms of the Sale and
Servicing Agreement.
(e) If at any ▇▇▇▇ ▇▇▇▇▇▇ shall propose to sell, grant a security
interest in, or otherwise transfer any interest in any motor vehicle
receivables to any prospective purchaser, lender or other transferee,
Seller shall give to such prospective purchaser, lender, or other
transferee computer tapes, records, or print-outs (including any restored
from archives) that, if they shall refer in any manner whatsoever to any
Receivable (other than a Purchased Receivable or a Sold Receivable), shall
indicate clearly that such Receivable has been sold to Purchaser, sold by
Purchaser to Issuer, and is owned by the Issuer.
SECTION 4.2 Other Liens or Interests. Except for the conveyances
hereunder, Seller will not sell, pledge, assign or transfer to any other Person,
or grant, create, incur, assume or suffer to exist any Lien on the Receivables
or the Other Conveyed Property or any interest therein, and Seller shall defend
the right, title, and interest of Purchaser and the Issuer in and to the
Receivables and the Other Conveyed Property against all claims of third parties
claiming through or under Seller.
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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 Insurer, 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 Insurer, 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 Insurer, 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 Insurer, 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 Insurer, 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 Insurer, 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
10
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 Insurer, 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 Insurer, 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 Insurer, 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 Insurer, 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
11
of counsel and expenses of litigation and shall survive payment of the Notes and
the Certificate. The indemnity obligations hereunder shall be in addition to any
obligation that Seller may otherwise have.
ARTICLE V.
REPURCHASES
SECTION 5.1 Repurchase of Receivables Upon Breach of Warranty. Upon
the occurrence of a Repurchase Event, Seller shall, unless the breach which is
the subject of such Repurchase Event shall have been cured in all material
respects, repurchase the Receivable relating thereto from the Issuer and,
simultaneously with the repurchase of the Receivable, Seller shall deposit the
Purchase Amount in full, without deduction or offset, to the Collection Account,
pursuant to Section 3.2 of the Sale and Servicing Agreement. It is understood
and agreed that, except as set forth in Section 6.1 hereof, the obligation of
Seller to repurchase any Receivable, as to which a breach occurred and is
continuing, shall, if such obligation is fulfilled, constitute the sole remedy
against Seller for such breach available to Purchaser, the Issuer, the Insurer,
the Backup Servicer, the Noteholders, the Certificateholder, the Trust
Collateral Agent on behalf of the Noteholders or the Owner Trustee on behalf of
the Certificateholder. The provisions of this Section 5.1 are intended to grant
the Issuer, the Insurer 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
12
legal proceeding, it is held that Seller may not enforce any such Receivable on
the ground that it shall not be a real party in interest or a holder entitled to
enforce the Receivable, Purchaser and the Issuer shall, at the expense of
Seller, take such steps as Seller deems reasonably necessary to enforce the
Receivable, including bringing suit in Purchaser's or in the Issuer's name.
SECTION 5.3 Waivers. No failure or delay on the part of Purchaser, or
the Issuer as assignee of Purchaser, or the Trust Collateral Agent as assignee
of the Issuer, in exercising any power, right or remedy under this Agreement
shall operate as a waiver thereof, nor shall any single or partial exercise of
any such power, right or remedy preclude any other or future exercise thereof or
the exercise of any other power, right or remedy.
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. 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, the Insurer and the Trust Collateral Agent an Officer's
Certificate of the Seller or a certificate signed by or on behalf of the
Purchaser, as applicable, and an Opinion of Counsel each stating that such
consolidation,
13
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, the Insurer and
the Trust Collateral Agent an Opinion of Counsel, stating, in the opinion of
such counsel, either (A) all financing statements and continuation statements
and amendments thereto have been executed and filed that are necessary to
preserve and protect the interest of the Issuer and the Trust Collateral Agent
in the Receivables and reciting the details of the filings or (B) no such action
shall be necessary to preserve and protect such interest.
SECTION 6.3 Limitation on Liability of Seller and Others. Seller and
any director, officer, employee or agent thereof may rely in good faith on the
advice of counsel or on any document of any kind prima facie properly executed
and submitted by any Person respecting any matters arising under this Agreement.
Seller shall not be under any obligation to appear in, prosecute or defend any
legal action that is not incidental to its obligations under this Agreement or
its Related Documents and that in its opinion may involve it in any expense or
liability.
SECTION 6.4 Seller May Own Notes or the Certificate. Subject to the
provisions of the Sale and Servicing Agreement, Seller and any Affiliate of
Seller may in their individual or any other capacity become the owner or pledgee
of Notes or the Certificate with the same rights as they would have if they were
not Seller or an Affiliate thereof.
SECTION 6.5 Amendment.
(a) This Agreement may be amended by Seller and Purchaser with the
prior written consent of the Insurer (so long as an Insurer Default shall
not have occurred and be continuing) but without the consent of the Trust
Collateral Agent, the Owner Trustee, the Certificateholder or any of the
Noteholders (i) to cure any ambiguity or (ii) to correct any provisions in
this Agreement; provided, however, that such action shall not, as evidenced
by an Opinion of Counsel delivered to the Issuer, the Owner Trustee, the
Insurer and the Trust Collateral Agent, adversely affect in any material
respect the interests of any Certificateholder or Noteholder or, if an
Insurer Default shall have occurred and be continuing, the Insurer.
(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; provided further
that if an Insurer Default has occurred and is continuing, such amendment
shall not materially adversely affect the interests of the Insurer.
14
(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 and the Insurer.
(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., ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇,
Attention: Chief Financial Officer, or (b) in the case of Purchaser, to AFS
SenSub 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, the Insurer 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
15
with respect to Seller. In the event that such conveyance is determined to be
made as security for a loan made by Purchaser, the Issuer, the Noteholders or
the Certificateholder to Seller, the Seller hereby grants to Purchaser a
security interest in all of Seller's right, title and interest in and to the
following property, whether now owned or existing or hereafter acquired or
arising, and this Agreement shall constitute a security agreement under
applicable law (collectively, the "Purchase Agreement Collateral"):
(1) the Receivables and all moneys received thereon after the
Cutoff Date;
(2) the security interests in the Financed Vehicles granted by
Obligors pursuant to the Receivables and any other interest of the Seller
in such Financed Vehicles;
(3) any proceeds and the right to receive proceeds with respect
to the Receivables from claims on any physical damage, credit life or
disability insurance policies covering Financed Vehicles or Obligors and
any proceeds from the liquidation of the Receivables;
(4) any proceeds from any Receivable repurchased by a Dealer
pursuant to a Dealer Agreement or 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 Dealer Agreement or Auto Loan Purchase and Sale
Agreement;
(5) all rights under any Service Contracts on the related
Financed Vehicles;
(6) the related Receivable Files;
(7) all of the Seller's (i) Accounts, (ii) Chattel Paper, (iii)
Documents, (iv) Instruments and (v) General Intangibles (as such terms are
defined in the UCC) relating to the property described in (1) through (6);
and
(8) all proceeds and investments with respect to items (1)
through (7).
SECTION 6.10 Governing Law. This Agreement shall be construed in
accordance with, and this Agreement and all matters arising out of or relating
in any way to this Agreement shall be governed by, the law of the State of New
York, without giving effect to its conflict of law provisions (other than
Sections 5-1401 and 5-1402 of the New York General Obligations Law).
SECTION 6.11 Counterparts. For the purpose of facilitating the
execution of this Agreement and for other purposes, this Agreement may be
executed simultaneously in any number of counterparts, each of which
counterparts shall be deemed to be an original, and all of which counterparts
shall constitute but one and the same instrument.
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
16
Servicing Agreement, to convey the Receivables and the Other Conveyed Property,
together with its rights under this Agreement, to the Issuer on the Closing
Date. 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.
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.
SECTION 6.14 Benefits of Purchase Agreement. The Insurer and its
successors and assigns shall be a third-party beneficiary to the provisions of
this Purchase Agreement and shall be entitled to rely upon and directly enforce
the provisions of this Purchase Agreement so long as no Insurer Default shall
have occurred and be continuing.
[Remainder of page intentionally left blank]
17
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/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: Vice President,
Structured Finance
AMERICREDIT FINANCIAL SERVICES, INC.,
as Seller
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Senior Vice President,
Structured Finance
Accepted:
▇▇▇▇▇ FARGO BANK, NATIONAL
ASSOCIATION, as Trustee and Trust
Collateral Agent
By /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
[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 an Originating Affiliate and was validly assigned by
such Originating Affiliate to AmeriCredit, (iii) 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 (iv) 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 Originating Affiliate, such Dealer or such Third-Party Lender
for the retail sale of a Financed Vehicle in the ordinary course of
AmeriCredit's, such Originating Affiliate'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 Originating Affiliate, each Dealer and each Third-Party Lender
had all necessary licenses and permits to originate Receivables in the state
where AmeriCredit, each such Originating Affiliate, each such Dealer or each
such Third-Party Lender was located, (C) contains customary and enforceable
provisions such as to render the rights and remedies of the holder thereof
adequate for realization against the collateral security, (D) is a Receivable
which provides for level monthly payments (provided that the period in the first
Collection Period and the payment in the final Collection Period of the
Receivable may be minimally different from the normal period and level payment)
which, if made when due, shall fully amortize the Amount Financed over the
original term and (E) has not been amended or collections with respect to which
waived, other than as evidenced in the Receivable File or the Servicer's
electronic records relating thereto.
2. No Fraud or Misrepresentation. Each Receivable was originated (i) by
AmeriCredit, (ii) by an Originating Affiliate and was assigned by the
Originating Affiliate to AmeriCredit, (iii) by a Dealer and was sold by the
Dealer to AmeriCredit or (iv) by a Third-Party Lender and was sold by the
Third-Party Lender to AmeriCredit, and was sold by AmeriCredit to AFS SenSub
Corp. without any fraud or misrepresentation on the part of such Originating
Affiliate, Dealer or Third-Party Lender or AmeriCredit 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 Servicemembers Civil Relief Act,
each applicable state Motor Vehicle Retail Installment Sales Act, and state
adaptations of the National Consumer Act and of the Uniform Consumer Credit Code
and other consumer credit laws and
equal credit opportunity and disclosure laws) in respect of the Receivables and
the Financed Vehicles, have been complied with in all material respects, and
each Receivable and the sale of the Financed Vehicle evidenced by each
Receivable complied at the time it was originated or made and now complies in
all material respects with all applicable legal requirements.
4. Origination. Each Receivable was originated in the United States.
5. Binding Obligation. Each Receivable represents the genuine, legal, valid
and binding payment obligation of the Obligor thereon, enforceable by the holder
thereof in accordance with its terms, except (A) as enforceability may be
limited by bankruptcy, insolvency, reorganization or similar laws affecting the
enforcement of creditors' rights generally and by equitable limitations on the
availability of specific remedies, regardless of whether such enforceability is
considered in a proceeding in equity or at law and (B) as such Receivable may be
modified by the application after the Cutoff Date of the Servicemembers Civil
Relief Act, as amended; and all parties to each Receivable had full legal
capacity to execute and deliver such Receivable and all other documents related
thereto and to grant the security interest purported to be granted thereby.
6. No Government Obligor. No Obligor is the United States of America or any
State or any agency, department, subdivision or instrumentality thereof.
7. Obligor Bankruptcy. At the Cutoff Date no Obligor had been identified on
the records of AmeriCredit as being the subject of a current bankruptcy
proceeding.
8. Schedule of Receivables. The information set forth in the Schedule of
Receivables has been produced from the Electronic Ledger and was true and
correct in all material respects as of the close of business on the Cutoff Date.
9. Marking Records. Each of the Seller and AFS SenSub Corp. has indicated
in its files that the Receivables have been sold to the Trust pursuant to the
Sale and Servicing Agreement and Granted to the Trust Collateral Agent pursuant
to the Indenture. Further, AmeriCredit has indicated in its computer files that
the Receivables are owned by the Trust.
10. Computer Tape. The Computer Tape made available by AmeriCredit to AFS
SenSub Corp. and to the Trust on the Closing Date was complete and accurate as
of the Cutoff Date and includes a description of the same Receivables that are
described in the Schedule of Receivables.
11. Adverse Selection. No selection procedures adverse to the Noteholders
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 "tangible chattel paper" or
"electronic chattel paper" within the meaning of the UCC as in effect in the
States of Texas, New York, Nevada and Delaware.
13. One Original. There is only one original executed copy (or with respect
to "electronic chattel paper", one authoritative copy) of each Contract. With
respect to Contracts
B-2
that are "electronic chattel paper", each authoritative copy (a) is unique,
identifiable and unalterable (other than with the participation of the Trust
Collateral Agent in the case of an addition or amendment of an identified
assignee and other than a revision that is readily identifiable as an authorized
or unauthorized revision), (b) has been marked with a legend to the following
effect: "Authoritative Copy" and (c) has been communicated to and is maintained
by or on behalf of the Custodian.
14. Not an Authoritative Copy. With respect to Contracts that are
"electronic chattel paper", the Seller has marked all copies of each such
Contract other than an authoritative copy with a legend to the following effect:
"This is not an authoritative copy."
15. Revisions. With respect to Contracts that are "electronic chattel
paper", the related Receivables have been established in a manner such that (a)
all copies or revisions that add or change an identified assignee of the
authoritative copy of each such Contract must be made with the participation of
the Trust Collateral Agent and (b) all revisions of the authoritative copy of
each such Contract must be readily identifiable as an authorized or unauthorized
revision.
16. Pledge or Assignment. With respect to Contracts that are "electronic
chattel paper", the authoritative copy of each Contract communicated to the
Custodian has no marks or notations indicating that it has been pledged,
assigned or otherwise conveyed to any Person other than the Trust Collateral
Agent.
17. Receivable Files Complete. There exists a Receivable File pertaining to
each Receivable and such Receivable File contains a fully executed original of
the Contract and the original Lien Certificate or a copy of the application
therefor. Related documentation concerning the Receivable, including any
documentation regarding modifications of the Contract, will be maintained
electronically by the Servicer in accordance with customary policies and
procedures. 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. With respect to tangible chattel paper, the complete Receivable File
for each Receivable currently is in the possession of the Custodian.
18. Receivables in Force. No Receivable has been satisfied, subordinated or
rescinded, and the Financed Vehicle securing each such Receivable has not been
released from the lien of the related Receivable in whole or in part. No terms
of any Receivable have been waived, altered or modified in any respect since its
origination, except by instruments or documents identified in the Receivable
File or the Servicer's electronic records.
19. 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.
20. Good Title. Immediately prior to the conveyance of the Receivables to
AFS SenSub Corp. pursuant to this Agreement, AmeriCredit was the sole owner
thereof and had good and indefeasible title thereto, free of any Lien and, upon
execution and delivery of this Agreement by AmeriCredit, AFS SenSub Corp. shall
have good and indefeasible title to and will
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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.
21. Security Interest in Financed Vehicle. Each Receivable created or shall
create a valid, binding and enforceable first priority security interest in
favor of AmeriCredit (or an Originating Affiliate or a Titled Third-Party Lender
which first priority security interest has been assigned to AmeriCredit) in the
Financed Vehicle. The Lien Certificate for each Financed Vehicle shows, or if a
new or replacement Lien Certificate is being applied for with respect to such
Financed Vehicle the Lien Certificate will be received within 180 days of the
Closing Date and will show, AmeriCredit (or an Originating Affiliate or a Titled
Third-Party Lender) named as the original secured party under each Receivable as
the holder of a first priority security interest in such Financed Vehicle. With
respect to each Receivable for which the Lien Certificate has not yet been
returned from the Registrar of Titles, AmeriCredit or the related Originating
Affiliate has applied for or received written evidence from the related Dealer
or Third-Party Lender that such Lien Certificate showing AmeriCredit, an
Originating Affiliate, the Issuer or a Titled Third-Party Lender, as applicable,
as first lienholder has been applied for and the Originating Affiliate's or
Titled Third-Party Lender's security interest has been validly assigned by the
Originating Affiliate or Titled Third-Party Lender, as applicable, to
AmeriCredit and AmeriCredit's security interest has been validly assigned by
AmeriCredit to AFS SenSub Corp. pursuant to this Agreement. This Agreement
creates a valid and continuing security interest (as defined in the UCC) in the
Receivables in favor of the Purchaser, which security interest is prior to all
other Liens, and is enforceable as such as against creditors of and purchasers
from the Seller. Immediately after the sale, transfer and assignment thereof by
AmeriCredit to AFS SenSub Corp., each Receivable will be secured by an
enforceable and perfected first priority security interest in the Financed
Vehicle in favor of AFS SenSub Corp. as secured party, which security interest
is prior to all other Liens upon and security interests in such Financed Vehicle
which now exist or may hereafter arise or be created (except, as to priority,
for any lien for taxes, labor or materials affecting a Financed Vehicle). As of
the Cutoff Date there were no Liens or claims for taxes, work, labor or
materials affecting a Financed Vehicle which are or may be Liens prior or equal
to the Liens of the related Receivable.
22. All Filings Made. All filings (including, without limitation, UCC
filings (including, without limitation, the filing by the Seller of all
appropriate financing statements in the proper filing office in the State of
Delaware under applicable law in order to perfect the security interest in the
Receivables granted to the Purchaser hereunder)) required to be made by any
Person and actions required to be taken or performed by any Person in any
jurisdiction to give the Trust and the Trust Collateral Agent 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.
23. No Impairment. AmeriCredit has not done anything to convey any right to
any Person that would result in such Person having a right to payments due under
the Receivables or otherwise to impair the rights of the Trust, the Insurer, the
Trustee, the Trust Collateral Agent
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and the Noteholders in any Receivable or the proceeds thereof. Other than the
security interest granted to the Purchaser pursuant to this Agreement and except
any other security interests that have been fully released and discharged as of
the Closing Date, the Seller has not pledged, assigned, sold, granted a security
interest in, or otherwise conveyed any of the Receivables. The Seller has not
authorized the filing of and is not aware of any financing statements against
the Seller that include a description of collateral covering the Receivables
other than any financing statement relating to the security interest granted to
the Purchaser hereunder or that has been terminated. The Seller is not aware of
any judgment or tax lien filings against it.
24. 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.
25. 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.
26. 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.
27. Insurance. At the time of an origination of a Receivable by
AmeriCredit, an Originating Affiliate, 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 (or an Originating Affiliate or
a Titled Third-Party Lender) 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, an
Originating Affiliate or a Titled Third-Party Lender 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.
28. Past Due. At the Cutoff Date no Receivable was more than 30 days past
due.
29. Remaining Principal Balance. At the Cutoff Date the Principal Balance
of each Receivable set forth in the Schedule of Receivables is true and accurate
in all material respects.
30. Certain Characteristics of Receivables.
(A) Each Receivable had a remaining maturity as of the Cutoff Date of
not more than 72 months.
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(B) Each Receivable had an original maturity as of the Cutoff Date 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 $80,000.
(D) Each Receivable had an Annual Percentage Rate as of the Cutoff
Date of at least 1% and not more than 33%.
(E) No Receivable was more than 30 days past due as of the Cutoff
Date.
(F) No funds had been advanced by AmeriCredit, any Originating
Affiliate, 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.
(G) Not more than 35% of the Obligors on the Receivables as of the
Cutoff Date resided in Texas and California (based on the
Obligor's mailing address as of the Cutoff Date).
(H) Each Obligor had a billing address in the United States as of the
date of origination of the related Receivable, is a natural
person and is not an Affiliate of any party to any Related
Agreement.
(I) Each Receivable is denominated in, and each Contract provides for
payment in, United States dollars.
(J) Each Receivable is identified on the Servicer's master servicing
records as an automobile installment sales contract or
installment note.
(K) Each Receivable arose under a Contract which is assignable
without the consent of, or notice to, the Obligor thereunder, and
does not contain a confidentiality provision that purports to
restrict the ability of the Servicer to exercise its rights under
the Sale and Servicing Agreement, including, without limitation,
its right to review the Contract.
(L) Each Receivable arose under a Contract with respect to which
AmeriCredit has performed all obligations required to be
performed by it thereunder, and, in the event such Contract is an
installment sales contract, delivery of the Financed Vehicle to
the related Obligor has occurred.
(M) Not more than 2% of all Receivables (calculated by Aggregate
Principal Balance) which have been transferred to the Issuer
including the Receivables as of the Cutoff Date shall be
"electronic chattel paper" as such term is defined in the UCC.
(N) No automobile related to a Receivable was held in repossession
inventory as of the Cutoff Date.
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(O) No Obligor was in bankruptcy as of the Cutoff Date.
(P) The Seller has not selected the Receivables in a manner that it
believes is adverse to the interests of the Insurer or the
Noteholders.
31. Interest Calculation. Each Contract provides for the calculation of
interest payable thereunder under either the "simple interest" method, the "Rule
of 78's" method or the "precomputed interest" method.
32. Lockbox Account. Each Obligor has been, or will be, directed to make
all payments on their related Receivable to the Lockbox Account.
33. Lien Enforcement. Each Receivable provides for enforcement of the lien
or the clear legal right of repossession, as applicable, on the Financed Vehicle
securing such Receivable.
34. Prospectus Supplement Description. Each Receivable conforms, and all
Receivables in the aggregate conform, in all material respects to the
description thereof set forth in the Prospectus Supplement.
35. Risk of Loss. Each Contract contains provisions requiring the Obligor
to assume all risk of loss or malfunction on the related Financed Vehicle,
requiring the Obligor to pay all sales, use, property, excise and other similar
taxes imposed on or with respect to the Financed Vehicle and making the Obligor
liable for all payments required to be made thereunder, without any setoff,
counterclaim or defense for any reason whatsoever, subject only to the Obligor's
right of quiet enjoyment.
36. Leasing Business. To the best of the Seller's and the Servicer's
knowledge, as appropriate, no Obligor is a Person involved in the business of
leasing or selling equipment of a type similar to the Obligor's related Financed
Vehicle.
37. Consumer Leases. No Receivable constitutes a "consumer lease" under
either (a) the UCC as in effect in the jurisdiction the law of which governs the
Receivable or (b) the Consumer Leasing Act, 15 USC 1667.
38. Perfection. The Seller has taken all steps necessary to perfect its
security interest against the related Obligors in the property securing the
Receivables and will take all necessary steps on behalf of the Trust to maintain
the Trust's perfection of the security interest created by each Receivable in
the related Financed Vehicle.
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