Form of Underwriting Agreement

Exhibit 10.1


PURCHASE AGREEMENT

between


[AFS SENSUB CORP.]/[AFS FUNDING TRUST]

Purchaser

and


AMERICREDIT FINANCIAL SERVICES, INC.

Seller


Dated as of , 200

TABLE OF CONTENTS


Page


ARTICLE I. DEFINITIONS 1

SECTION 1.1 General 1

SECTION 1.2 Specific Terms 1

SECTION 1.3 Usage of Terms 3

SECTION 1.4 [Reserved] 3

SECTION 1.5 No Recourse 3

SECTION 1.6 Action by or Consent of Noteholders and Certificateholder 3

SECTION 1.7 Material Adverse Effect 3

ARTICLE II. CONVEYANCE OF THE RECEIVABLES AND THE OTHER CONVEYED PROPERTY 4

SECTION 2.1 Conveyance of the [Initial] Receivables and the [Initial] Other Conveyed Property. 4

SECTION 2.2 [Conveyance of the Subsequent Receivables and the Subsequent Other Conveyed Property]. 5

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 9

SECTION 4.1 Protection of Title of Purchaser. 9

SECTION 4.2 Other Liens or Interests 11

SECTION 4.3 Costs and Expenses 11

SECTION 4.4 Indemnification. 11

ARTICLE V. REPURCHASES 13

SECTION 5.1 Repurchase of Receivables Upon Breach of Warranty 13

SECTION 5.2 Reassignment of Purchased Receivables 14

SECTION 5.3 Waivers 14

ARTICLE VI. MISCELLANEOUS 14

SECTION 6.1 Liability of Seller 14

SECTION 6.2 Merger or Consolidation of Seller or Purchaser 14

SECTION 6.3 Limitation on Liability of Seller and Others 15

SECTION 6.4 Seller May Own Notes or the Certificate 15

SECTION 6.5 Amendment. 15

SECTION 6.6 Notices 16

SECTION 6.7 Merger and Integration 17

SECTION 6.8 Severability of Provisions 17

SECTION 6.9 Intention of the Parties. 17

SECTION 6.10 Governing Law 17

SECTION 6.11 Counterparts 17

SECTION 6.12 Conveyance of the Receivables and the Other Conveyed Property to the Issuer 17


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SECTION 6.13 Nonpetition Covenant 18

SECTION 6.14 [Benefits of Purchase Agreement] 18


SCHEDULES


Schedule A - Schedule of Receivables

Schedule B - Representations and Warranties from Seller as to the Receivables

[EXHIBITS]

[Exhibit A - Form of Subsequent Purchase Agreement]


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PURCHASE AGREEMENT


THIS PURCHASE AGREEMENT, dated as of , 200 , executed among [AFS SenSub Corp., a Nevada corporation]/[AFS Funding Trust, a Delaware statutory trust], 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 [Initial] Other Conveyed Property [and with respect to the Subsequent Receivables will transfer on the related Subsequent Transfer Date the Subsequent Receivables and 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 , 200 , by and among [AFS SenSub Corp.]/[AFS Funding Trust] (as Seller), AmeriCredit Financial Services, Inc. (in its individual capacity and as Servicer), AmeriCredit Automobile Receivables Trust 200 - (as Issuer), [Backup Servicer and Trust Collateral Agent], 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 , 200 .


" [ Initial] Other Conveyed Property" means all property conveyed by the Seller to the Purchaser pursuant to Section 2.1(a)(1) through (8) of this Agreement and by the Purchaser to the Trust pursuant to Section 2.1(b) through (i) of the Sale and Servicing Agreement.

" [ Initial] Receivables" means the Receivables listed on the Schedule of [Initial] Receivables attached hereto.


" Issuer" means AmeriCredit Automobile Receivables Trust 200 - .


" Owner Trustee" means [Owner Trustee], as Owner Trustee appointed and acting pursuant to the Trust Agreement.


[" Receivables" means the Initial Receivables and the Subsequent Receivables.]

" 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 Underwriting Agreement [and, with respect to the Subsequent Receivables, each Subsequent Purchase Agreement and each Subsequent Transfer 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 in any Subsequent Purchase Agreement] or any other event which requires the repurchase of a Receivable by [AFS SenSub Corp.]/[AFS Funding Trust], in its capacity as 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.


" Schedule of [Initial] 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 related 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, substantially in the form of Exhibit A hereunder.]


[" Subsequent Receivables" means Receivables transferred to the Purchaser pursuant to Section 2.2, which shall be listed on Schedule A to the related Subsequent Purchase Agreement.]


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[" Subsequent Transfer Agreement" means an agreement among the Issuer, the Seller and the Servicer, substantially in the form of Exhibit A to the Sale and Servicing 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 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 [Trust Collateral Agent], as trust collateral agent and any successor trust collateral agent appointed and acting pursuant to the Sale and Servicing Agreement.


" Trustee" means [Trustee], 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


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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 [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 following described property:


(1) the [Initial] Receivables and all moneys received thereon after the [Initial] Cutoff Date;

(2) the security interests in the Financed Vehicles granted by Obligors pursuant to the [Initial] 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 [Initial] 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;


(4) any proceeds from any [Initial] 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).


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


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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 Subsequent Purchase 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 the amount set forth in the related Subsequent Purchase Agreement.]

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]/[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 any Subsequent Transfer Agreement] and [on which the Insurer will rely in issuing the Note Policy.] 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 [and any Subsequent Transfer


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Agreement]. Seller and Purchaser agree that Purchaser will assign to Issuer all Purchaser' s rights under this Agreement [and under any Subsequent Purchase Agreement] and that the Trustee will thereafter be entitled to enforce this Agreement [and any Subsequent Purchase 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 [the Closing]/[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.

(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 by-laws of Seller, or any indenture,


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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 801 Cherry Street, Suite 3900, Fort Worth, Texas 76102.

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]/[statutory trust] under the laws of the State of [Nevada]/[Delaware], 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.


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(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 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]/[trust agreement] 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


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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 ...