Exhibit 10.5
EXECUTION COPY
MASTER RECEIVABLES
PURCHASE AGREEMENT
among
AMERICREDIT MTN RECEIVABLES TRUST III,
as Purchaser,
AMERICREDIT FINANCIAL SERVICES, INC.,
individually and as Seller,
AmeriCredit MTN Corp. III,
as Seller,
and
JPMORGAN Chase Bank,
as Collateral Agent
dated as of
February 25, 2002
TABLE OF CONTENTS
Page
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ARTICLE I. DEFINITIONS............................................................... 1
SECTION 1.1 General............................................................. 1
SECTION 1.2 Specific Terms...................................................... 1
SECTION 1.3 Usage of Terms...................................................... 2
SECTION 1.4 No Recourse......................................................... 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
ARTICLE III. REPRESENTATIONS AND WARRANTIES.......................................... 4
SECTION 3.1 Representations and Warranties of AFS............................... 4
SECTION 3.2 [Reserved].......................................................... 6
SECTION 3.3 Representations and Warranties of AMTN.............................. 6
ARTICLE IV. COVENANTS OF SELLERS..................................................... 8
SECTION 4.1 Liens in Force...................................................... 8
SECTION 4.2 No Impairment....................................................... 8
SECTION 4.3 No Amendments....................................................... 8
SECTION 4.4 Restrictions on Liens............................................... 8
SECTION 4.5 Preservation of Collateral.......................................... 8
SECTION 4.6 Transfers Treated as Sales.......................................... 8
ARTICLE V. REPURCHASES............................................................... 9
SECTION 5.1 Repurchase of Receivables Upon Breach of Warranty................... 9
SECTION 5.2 Reassignment of Purchased Receivables............................... 9
SECTION 5.3 Waivers............................................................. 10
ARTICLE VI. CONDITIONS PRECEDENT..................................................... 10
SECTION 6.1 Conditions Precedent to each Receivables Sale....................... 10
ARTICLE VII. MISCELLANEOUS........................................................... 11
SECTION 7.1 Liability of Sellers................................................ 11
SECTION 7.2 Merger or Consolidation of Sellers.................................. 11
SECTION 7.3 Limitation on Liability of Sellers and Others....................... 11
SECTION 7.4 Amendment........................................................... 11
SECTION 7.5 Notices............................................................. 11
SECTION 7.6 Merger and Integration.............................................. 12
SECTION 7.7 Severability of Provisions.......................................... 12
SECTION 7.8 Intention of the Parties............................................ 12
SECTION 7.9 Governing Law....................................................... 12
SECTION 7.10 Counterparts........................................................ 12
SECTION 7.11 Conveyance of the Receivables and the Other Conveyed Property to the
Collateral Agent.................................................. 12
SECTION 7.12 Nonpetition Covenant............................................... 13
SECTION 7.13 Limitation of Liability of Trustee................................. 13
SECTION 7.14 Additional Transfers............................................... 13
SECTION 7.15 Binding Effect..................................................... 13
EXHIBITS
Exhibit A -- Form of Supplement
ii
MASTER RECEIVABLES PURCHASE AGREEMENT
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THIS MASTER RECEIVABLES PURCHASE AGREEMENT, dated as of February 25,
2002, executed among AmeriCredit MTN Receivables Trust III, a Delaware business
trust, as purchaser ("Purchaser"), JPMorgan Chase Bank, as collateral agent (the
---------
"Collateral Agent"), AmeriCredit MTN Corp. III, a Delaware corporation, as
----------------
seller ("AMTN") and AmeriCredit Financial Services, Inc., a Delaware
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corporation, as seller ("AFS" and together with AMTN, the "Sellers").
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W I T N E S S E T H :
- - - - - - - - - -
WHEREAS, Purchaser has agreed to purchase from time to time from the
Sellers, and the Sellers, pursuant to this Agreement, have agreed to transfer
from time to time to the 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 Sellers, intending to be
legally bound, hereby agree as follows:
ARTICLE I.
DEFINITIONS
SECTION 1.1 General. The specific terms defined in this Article
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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 Security Agreement (as defined herein) or
the Servicing and Custodian Agreement (as defined herein).
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 Master Receivables Purchase Agreement and
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all amendments hereof and supplements hereto.
"Collateral Agent" means JPMorgan Chase Bank, as collateral agent and
----------------
any successor collateral agent appointed and acting pursuant to the Security
Agreement.
"Other Conveyed Property" means all property conveyed by the Sellers
-----------------------
to the Purchaser pursuant to this Agreement and the Supplement other than the
Receivables.
"Purchase Amount" means, with respect to a Receivables the
---------------
Outstanding Balance of such Receivable and all accrued and unpaid interest on
such Receivables, after giving
effect to the receipt of any funds collected (from whatever source on such
Receivable).
"Receivables" means the Receivables (as defined in the Security
-----------
Agreement) listed on the Schedules of Receivables attached to each Supplement.
"Receivables Transfer Date" means the date specified in the related
-------------------------
Supplement as the date of contribution and/or sale of Receivables by the Sellers
named therein to the Purchaser.
"Relevant Cutoff Date" means the date specified in the related
--------------------
Supplement, provided, however that such date shall be on or before the related
Receivables Transfer Date.
"Repurchase Event" means the occurrence of a breach of any of
----------------
Seller's representations and warranties hereunder or under the Servicing and
Custodian Agreement, or the breach of any Seller's covenants set forth in
Article IV.
"Sale Agreement" means each "Sale Agreement" in substantially the
--------------
form attached as Exhibit A to the Sale and Contribution Agreement, which is
hereafter executed by AFS and AMTN.
"Sale and Contribution Agreement" means the Sale and Contribution
-------------------------------
Agreement, dated as of the dated hereof, by and between AMTN (as Purchaser) and
AFS (as Seller).
"Schedules of Receivables" means the lists of Receivables sold and
------------------------
transferred pursuant to this Agreement and the Schedules which are attached to
the Supplements as Schedules A and B thereto.
"Security Agreement" means the Security Agreement, dated as of the
------------------
date hereof, by and among the Purchaser (as Debtor), AFS (in its individual
capacity and as Servicer), AMTN and the Collateral Agent.
"Servicing and Custodian Agreement" means the Servicing and Custodian
---------------------------------
Agreement, dated as of the date hereof, by and among AFS (as Servicer and as
Custodian), the Trust and the Collateral Agent.
"Supplement" means each agreement by and among the Sellers and the
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Purchaser pursuant to which the Purchaser will acquire Receivables,
substantially in the form of Exhibit A hereto.
SECTION 1.3 Usage of Terms. With respect to all terms used in this
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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, the Servicing and
Custodian Agreement, the Security Agreement or the Note Purchase Agreement;
references to Persons include their permitted successors and assigns; and the
terms "include" or "including" mean "include without limitation" or "including
without limitation."
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SECTION 1.4 No Recourse. Without limiting the obligations of Sellers
-----------
hereunder and except to the extent otherwise provided in the Transaction
Documents, 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 Sellers,
or of any predecessor or successor of Sellers.
ARTICLE II.
CONVEYANCE OF THE RECEIVABLES
AND THE OTHER CONVEYED PROPERTY
SECTION 2.1 Conveyance of the Receivables and the Other Conveyed
----------------------------------------------------
Property. By execution of this Agreement and subject to the terms and conditions
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of this Agreement and simultaneously with the execution and delivery of the
related Supplement, the relevant Sellers shall sell and/or contribute, transfer
and assign to the Purchaser (collectively, the "Conveyance") without recourse
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(but without limitation of its obligations in this Agreement and the other
Transaction Documents), and the Purchaser shall purchase or acquire as a
contribution, all right, title and interest of such Sellers in and to:
(i) each and every Receivable listed on Schedule A and B to the related
Supplement and all Collections thereon or in respect thereof on or
after the Relevant Cutoff Date;
(ii) the Related Security with respect to each Receivable;
(iii) all Proceeds and the rights to receive Proceeds with respect to the
Receivables from claims on any physical damage, credit life or
disability insurance policies or Collateral Insurance (if any),
covering Financed Vehicles or Obligors;
(iv) all rights under any service contracts on the related Financed
Vehicles;
(v) all rights of the Sellers against Dealers pursuant to Dealer
Agreements or Dealer Assignments;
(vi) all rights of Seller against Third Party Lenders pursuant to Third
Party Loan Purchase Agreements and/or Third Party Assignments.
(vii) the related Records; and
(viii) all Proceeds of any or all of the foregoing.
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ARTICLE III.
REPRESENTATIONS AND WARRANTIES
SECTION 3.1 Representations and Warranties of AFS. AFS makes the
-------------------------------------
following representations and warranties as of the date hereof and as of each
Receivables Transfer Date, as the case may be, on which Purchaser relies in
purchasing the Receivables and the Other Conveyed Property. Such representations
are made as of the execution and delivery of this Agreement and as of the
execution and delivery by AFS of any Supplement, but shall survive the sale
and/or contribution, transfer and assignment of the Receivables and the Other
Conveyed Property hereunder and under any Supplement, and the grant of the
security interest therein and the continuing lien therein by Purchaser to the
Collateral Agent for the benefit of the Secured Parties under the Security
Agreement. AFS and Purchaser agree that Purchaser will assign to Collateral
Agent all Purchaser's rights under this Agreement and that the Collateral Agent
will thereafter be entitled to enforce this Agreement against AFS in the
Collateral Agent's own name on behalf of the Secured Parties.
(a) Eligible Receivables. Upon each Receivables Transfer Date, the
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Purchaser (i) will acquire each Receivable and the Other Conveyed Property
free and clear of any Adverse Claim and (ii) will purchase each Receivable
at fair market value. Each Receivable (including all Receivables sold
hereunder by AFS or AMTN) as of the date hereof and the Receivables
Transfer Date is an Eligible Receivable.
(b) Organization and Good Standing. AFS 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. AFS is duly qualified to do business as a
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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. AFS has the power and authority to execute
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and deliver this Agreement and its Transaction Documents and to carry out
its terms and their terms, respectively; AFS has full power and authority
to sell and/or contribute, transfer and assign the Receivables and the
Other Conveyed Property to be sold and/or contributed, transferred and
assigned to and deposited with Purchaser hereunder and has duly authorized
such sale or contribution, transfer and assignment to Purchaser by all
necessary corporate action; and the execution, delivery and performance of
this Agreement and AFS's Transaction Documents have been duly authorized by
AFS by all necessary corporate action.
(e) Valid Sale; Binding Obligations. This Agreement and AFS's
-------------------------------
Transaction Documents have been duly executed and delivered, shall effect a
valid sale or
4
contribution, transfer and assignment of the Receivables and the Other
Conveyed Property to the Purchaser, enforceable against AFS and
creditors of and purchasers from AFS; and this Agreement and AFS's
Transaction Documents constitute legal, valid and binding obligations
of AFS 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 Transaction Documents, and the
fulfillment of the terms of this Agreement and the Transaction
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 AFS, or any indenture, agreement, mortgage, deed of trust or
other instrument to which AFS 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 Security Agreement and the Note Purchase Agreement, or
violate any law, order, rule or regulation applicable to AFS of any
court or of any federal or state regulatory body, administrative
agency or other governmental instrumentality having jurisdiction over
AFS or any of its properties and do not require any action by or
require the consent or approval of or the filing of any notice with
any Official Body or any other Person.
(g) No Proceedings. There are no proceedings or investigations
--------------
pending or, to AFS's knowledge, threatened against AFS, before any
court, regulatory body, administrative agency or other tribunal or
governmental instrumentality having jurisdiction over AFS or its
properties (i) asserting the invalidity of this Agreement or any of
the Transaction Documents, (ii) seeking to prevent the issuance of the
Note or the consummation of any of the transactions contemplated by
this Agreement or any of the Transaction Documents, (iii) seeking any
determination or ruling that might materially and adversely affect the
performance by AFS of its obligations under, or the validity or
enforceability of, this Agreement or any of the Transaction 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 Security Agreement.
(h) Chief Executive Office. The chief executive office of AFS is
----------------------
located at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇.
(i) No Adverse Selection. No selection procedures adverse to the
--------------------
parties hereto or to the Secured Parties have been utilized in
selecting the Receivables from all other similar Receivables owned by
AFS and its Affiliates.
(j) Solvency. AFS shall not be insolvent on any Receivables
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Transfer Date and no Conveyance will cause AFS to become insolvent.
5
SECTION 3.2 [Reserved]
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SECTION 3.3 Representations and Warranties of AMTN. AMTN makes
--------------------------------------
the following representations and warranties as of the date hereof and as of
each Receivables Transfer Date, as the case may be, on which Purchaser relies in
purchasing the Receivables and the Other Conveyed Property. Such representations
are made as of the execution and delivery of this Agreement and as of the
execution and delivery by AMTN of any Supplement, but shall survive the sale
and/or contribution, transfer and assignment of the Receivables and the Other
Conveyed Property hereunder and under any Supplement, and the sale and/or
contribution, transfer and assignment thereof by Purchaser to the Collateral
Agent under the Security Agreement. AMTN and Purchaser agree that Purchaser will
assign to Collateral Agent all Purchaser's rights under this Agreement and that
the Collateral Agent will thereafter be entitled to enforce this Agreement
against AMTN in the Collateral Agent's own name on behalf of the Secured
Parties.
(a) Eligible Receivables. Upon each Receivables Transfer Date,
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the Purchaser (i) will acquire each Receivable and the Other Conveyed
Property free and clear of any Adverse Claim and (ii) will purchase each
Receivable at fair market value. Each Receivable (including all Receivables
sold hereunder by AFS or AMTN) as of the date hereof and the Receivables
Transfer Date is an Eligible Receivable.
(b) Organization and Good Standing. AMTN 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) Power and Authority. AMTN has the power and authority to
-------------------
execute and deliver this Agreement and its Transaction Documents and to
carry out its terms and their terms, respectively; AMTN has full power and
authority to sell and/or contribute, transfer and assign the Receivables
and the Other Conveyed Property to be sold and/or contributed, transferred
and assigned to and deposited with Purchaser hereunder and has duly
authorized such sale and/or contribution, transfer and assignment to
Purchaser by all necessary corporate action; and the execution, delivery
and performance of this Agreement and AMTN's Transaction Documents have
been duly authorized by AMTN by all necessary corporate action.
(d) Due Qualification. AMTN 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
(e) Valid Sale; Binding Obligations. This Agreement and AMTN's
-------------------------------
Transaction Documents have been duly executed and delivered, shall effect a
valid sale and/or contribution, transfer and assignment of the Receivables
and the Other Conveyed Property to the Purchaser, enforceable against AMTN
and creditors of and purchasers
6
from AMTN; and this Agreement and AMTN's Transaction Documents
constitute legal, valid and binding obligations of AMTN 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 Transaction Documents and the
fulfillment of the terms of this Agreement and the Transaction
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 AMTN, or any indenture, agreement, mortgage, deed of trust
or other instrument to which AMTN 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 Security Agreement and the Note Purchase Agreement, or
violate any law, order, rule or regulation applicable to AMTN of any
court or of any federal or state regulatory body, administrative
agency or other governmental instrumentality having jurisdiction over
AMTN or any of its properties and do not require any action by or
require the consent or approval of or the filing of any notice with
any Official Body or any other Person.
(g) No Proceedings. There are no proceedings or investigations
--------------
pending or, to AMTN's knowledge, threatened against AMTN, before any
court, regulatory body, administrative agency or other tribunal or
governmental instrumentality having jurisdiction over AMTN or its
properties (i) asserting the invalidity of this Agreement or any of
the Transaction Documents, (ii) seeking to prevent the issuance of the
Note or the consummation of any of the transactions contemplated by
this Agreement or any of the Transaction Documents, (iii) seeking any
determination or ruling that might materially and adversely affect the
performance by AMTN of its obligations under, or the validity or
enforceability of, this Agreement or any of the Transaction 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 Security Agreement.
(h) Chief Executive Office. The chief executive office of AMTN
----------------------
is located at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇.
(i) No Adverse Selection. No selection procedures adverse to the
--------------------
parties hereto or to the Secured Parties have been utilized in
selecting the Receivables from all other similar Receivables owned by
AMTN and its Affiliates.
(j) Solvency. AMTN shall not be insolvent on any Receivables
--------
Transfer Date and no Conveyance will cause AMTN to become insolvent.
7
ARTICLE IV.
COVENANTS OF SELLERS
SECTION 4.1 Liens in Force. The Financed Vehicle securing each
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Receivable shall not be released by the related Seller in whole or in part from
the security interest granted under the related Receivable, except upon payment
in full of the Receivable or as otherwise contemplated herein or the Transaction
Documents and the related Seller shall not take or permit any action
inconsistent with the foregoing. SECTION 4.2 No Impairment. The related Seller
shall do nothing to impair the rights of the Purchaser or the Secured Parties in
the Receivables, the Dealer Agreements, the Dealer Assignments, the Insurance
Policies or any other property or interest comprising the Other Conveyed
Property.
SECTION 4.3 No Amendments. The Sellers shall not take or permit
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any action to extend or otherwise amend the terms of any Receivable, except in
accordance with the Transaction Documents.
SECTION 4.4 Restrictions on Liens. The Sellers shall not: (i)
---------------------
create or incur or agree to create or incur, or consent to cause (upon the
happening of a contingency or otherwise) the creation, incurrence or existence
of any Lien or restriction on transferability of the Receivables or of any Other
Conveyed Property except for the Lien in favor of the Purchaser and the
Collateral Agent on behalf of the Secured Parties as assignee thereof, and the
restrictions on transferability imposed by this Agreement or (ii) sign or file
under the Uniform Commercial Code (the "UCC") of any jurisdiction any financing
statement or sign any security agreement authorizing any secured party
thereunder to file such financing statement, with respect to the Receivables or
to any Other Conveyed Property, except in each case any such instrument solely
securing the rights and preserving the Lien of the Purchaser and the Collateral
Agent as assignee thereof. The Sellers will take no action to cause any
Receivable to be evidenced by an instrument (as such term is defined in the
relevant UCC).
SECTION 4.5 Preservation of Collateral. The Sellers will do,
--------------------------
execute, acknowledge and deliver, or cause to be done, executed, acknowledged
and delivered, such instruments of transfer or take such other steps or actions
as may be necessary, or required by the Purchaser or the Collateral Agent or the
Note Insurer, to effect the Conveyance, to perfect the security interest granted
in the Receivables and the Other Conveyed Property to the Collateral Agent on
behalf of the Secured Parties, to ensure that such Conveyance and security
interest ranks prior to all other Liens and to preserve the priority of such
Conveyance and security interest and the validity and enforceability thereof.
SECTION 4.6 Transfers Treated as Sales. Each Seller agrees to
--------------------------
treat each transfer for all purposes other than federal income tax purposes (but
including, without limitation, financial accounting purposes) as a sale on all
relevant books, records, financial statements and other applicable documents;
for federal income tax purposes, the parties hereto intend the contribution of
Receivables by the Sellers to the Purchaser to be characterized as a
contribution of property to a partnership in exchange for an interest in the
partnership in which
8
no gain or loss shall be recognized pursuant to Section 721(a) of the Internal
Revenue Code of 1986, as amended. In the event that, notwithstanding the intent
of each Seller, the transfer and assignment contemplated hereby is not held to
be a sale, each Seller hereby grants to the Purchaser a security interest in the
Receivables and Other Conveyed Property described in each Supplement.
ARTICLE V.
REPURCHASES
SECTION 5.1 Repurchase of Receivables Upon Breach of Warranty.
-------------------------------------------------
Upon the occurrence of a Repurchase Event, AFS shall (unless the breach which is
the subject of such Repurchase Event shall have been cured in all material
respects by the last day of the second Settlement Period after such breach),
repurchase the Receivable relating thereto (whether or not it was the Seller
thereof) from the Purchaser and, simultaneously with the repurchase of the
Receivable, AFS shall deposit the Purchase Amount in full, without deduction or
offset, to the Collection Account, pursuant to Section 2.7(b) of the Security
Agreement. It is understood and agreed that the obligation of AFS to repurchase
any Receivable, as to which a breach has occurred and is continuing, shall, if
such obligation is fulfilled, constitute the sole remedy against AFS or AMTN for
such breach available to Purchaser, the Note Insurer or the Collateral Agent on
behalf of the Secured Parties except as otherwise specified in the Insurance
Agreement. The provisions of this Section 5.1 are intended to grant the
Collateral Agent and the Note Insurer a direct right against AFS to demand
performance hereunder, and in connection therewith, AFS 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 2.7 of
the Servicing and Custodian Agreement. Notwithstanding any other provision of
this Agreement or the Servicing and Custodian Agreement to the contrary, the
obligation of AFS under this Section shall not terminate upon a termination of
AFS as Servicer under the Servicing and Custodian 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 Servicing and Custodian Agreement.
SECTION 5.2 Reassignment of Purchased Receivables. Upon deposit
-------------------------------------
in the Collection Account of the Purchase Amount of any Receivable repurchased
by AFS under Section 5.1 hereof or Section 2.7 of the Servicing and Custodian
Agreement, Purchaser (at AFS's expense) shall take such steps as may be
reasonably requested by AFS in order to assign to AFS all of Purchaser's and the
Collateral Agent'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 Collateral Agent 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 Collateral Agent. Such assignment shall be a sale
and assignment outright, and not for security. If, following the reassignment of
a Purchased Receivable, in any enforcement suit or legal proceeding, it is held
that AFS 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 Collateral Agent shall, at the expense of AFS, take such steps
as AFS deems reasonably
9
necessary to enforce the Receivable, including bringing suit in Purchaser's or
in the Collateral Agent's name.
SECTION 5.3 Waivers. No failure or delay on the part of Purchaser, or
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the Collateral Agent on behalf of the Secured Parties as assignee of Purchaser,
in exercising any power, right or remedy under this Agreement shall operate as a
waiver thereof, nor shall any single or partial exercise of any such power,
right or remedy preclude any other or future exercise thereof or the exercise of
any other power, right or remedy.
ARTICLE VI.
CONDITIONS PRECEDENT
SECTION 6.1 Conditions Precedent to each Receivables Sale. Each sale
---------------------------------------------
and/or contribution of Receivables shall be subject to the conditions precedent
that:
(a) each relevant Seller and the Purchaser shall have executed and
delivered to the Collateral Agent and the Note Insurer a duly executed
Supplement substantially in the form attached hereto as Exhibit A which
shall include Schedules listing the Receivables to be sold and/or
contributed on such Receivables Transfer Date and the Seller shall have
delivered the Receivable Files to the Custodian and any other documents as
the Purchaser may request;
(b) all conditions to a Receivables Delivery under the Security
Agreement shall have been fulfilled; (c) the Sellers shall, to the extent
required by the Security Agreement, have deposited in the Collection
Account all Collections received after the Relevant Cutoff Date with
respect to the Receivables to be sold on such Receivables Transfer Date;
(d) the Sellers shall take any action (including, but not limited to,
the filing of appropriate UCC-1 financing statements and/or UCC-3 releases,
as applicable) required to (i) perfect the ownership interest of the
Purchaser in the Receivables and the Other Conveyed Property and (ii)
provide the Collateral Agent on behalf of the Secured Parties with a first
priority perfected security interest in the Receivables and the Other
Conveyed Property and shall promptly provide to each of the Purchaser and
the Collateral Agent and the Note Insurer a copy of a stamped
acknowledgement copy of such UCC-1 or UCC-3 (if any are necessary or
required);
(e) such sale or contribution shall be reflected on the books and
records of the Trust;
(f) and to the extent that, after giving effect to the sale and/or
contribution of Receivables made on such date there would be one or more
states of the United States in which Financed Vehicles securing more than
10% of the Net Receivables Balance were titled and as to which states an
opinion of counsel, in form and substance acceptable to the Note Insurer,
had not previously been given in connection with this facility as to the
10
perfection, priority and enforceability of the Collateral Agent's security
interest for each such state, AFS shall cause, within thirty (30) days, to
be delivered to the Purchaser, the Rating Agencies, the Collateral Agent
and the Note Insurer such an opinion of counsel.
ARTICLE VII.
MISCELLANEOUS
SECTION 7.1 Liability of Sellers. Sellers shall be liable in
--------------------
accordance herewith only to the extent of the obligations in this Agreement
specifically undertaken by Sellers and the representations and warranties of
Sellers.
SECTION 7.2 Merger or Consolidation of Sellers . Any corporation or
----------------------------------
other entity (i) into which a Seller may be merged or consolidated, (ii)
resulting from any merger or consolidation to which a Seller is a party or (iii)
succeeding to the business of Seller shall execute an agreement of assumption to
perform every obligation of such Seller under this Agreement and, whether or not
such assumption agreement is executed, shall be the successor to such Seller
hereunder (without relieving such Seller 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;
provided, however, that, with respect to AMTN, any such merger or consolidation
is subject in all respects to the restrictions set forth in its articles of
incorporation.
SECTION 7.3 Limitation on Liability of Sellers and Others. Each
---------------------------------------------
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. No Seller shall 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 Transaction Documents.
SECTION 7.4 Amendment.
---------
(a) This Agreement may be amended by Sellers and Purchaser (with the
consent of the Note Insurer) without the consent of the Collateral Agent
(i) to cure any ambiguity or (ii) to correct any provisions in this
Agreement; provided, however, that such action shall not adversely affect
-------- -------
the interests of any Secured Party.
(b) This Agreement may also be amended from time to time by Sellers
and Purchaser with the consent of the Collateral Agent and of the Note
Insurer, in accordance with the Security Agreement.
SECTION 7.5 Notices. All demands, notices and communications to
-------
Sellers 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 Sellers, to
AmeriCredit Financial Services, Inc., ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇, Attention: Chief Financial Officer, (b) in the case of Purchaser, to
AmeriCredit MTN
11
Receivables Trust III, c/o Bankers Trust (Delaware), E.A. Delle Donne Corporate
Center, ▇▇▇▇▇▇▇▇▇▇ Building, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇, Attention: Corporate Trust Administration, or (c) in the case of the
Collateral Agent, JPMorgan Chase Bank, ▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇,
Attention: AmeriCredit MTN Receivables Trust III, or such other address as shall
be designated by a party in a written notice delivered to the other party or to
the Collateral Agent, as applicable.
SECTION 7.6 Merger and Integration. Except as specifically stated
----------------------
otherwise herein, this Agreement and Transaction 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
Transaction Documents. This Agreement may not be modified, amended, waived or
supplemented except as provided herein.
SECTION 7.7 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 7.8 Intention of the Parties. The execution and delivery of
------------------------
this Agreement shall constitute an acknowledgment by Sellers and Purchaser that
they intend that the assignments and transfers herein contemplated constitute a
sale and/or contribution, transfer 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 Sellers to Purchaser, and that
the Receivables and the Other Conveyed Property shall not be a part of Sellers'
estates in the event of the bankruptcy, reorganization, arrangement, insolvency
or liquidation proceeding, or other proceeding under any federal or state
bankruptcy or similar law, or the occurrence of another similar event, of, or
with respect to Sellers. In the event that such conveyance is determined to be
made as security for a loan made by Purchaser or the Secured Parties to Sellers,
the parties intend that Sellers shall have granted to Purchaser a security
interest in all of Sellers' right, title and interest in and to the Receivables
and the Other Conveyed Property conveyed pursuant to Section 2.1 hereof, and
that this Agreement shall constitute a security agreement under applicable law.
SECTION 7.9 Governing Law. This Agreement shall be construed in
-------------
accordance with the laws of the State of New York without regard to the
principles of conflicts of laws thereof and the obligations, rights and remedies
of the parties under this Agreement shall be determined in accordance with such
laws.
SECTION 7.10 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 7.11 Conveyance of the Receivables and the Other Conveyed
----------------------------------------------------
Property to the Collateral Agent. Sellers acknowledge that Purchaser intends,
--------------------------------
pursuant to the Security Agreement, to pledge the Receivables and the Other
Conveyed Property, together with
12
its rights under this Agreement, to the Collateral Agent on the Receivables
Transfer Dates. Sellers acknowledge and consent to such conveyance and pledge
and waive any further notice thereof and covenant and agree that the
representations and warranties of Sellers contained in this Agreement and the
rights of Purchaser hereunder are intended to benefit the Note Insurer, the
Collateral Agent and the Secured Parties. In furtherance of the foregoing,
Sellers covenant and agree to perform their duties and obligations hereunder, in
accordance with the terms hereof for the benefit of the Collateral Agent and the
Secured Parties and that, notwithstanding anything to the contrary in this
Agreement, Sellers shall be directly liable to the Collateral Agent and the
Secured Parties and that the Note Insurer may enforce, and the Collateral Agent
shall enforce, at the direction of the Note Insurer, the duties and obligations
of Sellers under this Agreement against Sellers for the benefit of the Secured
Parties and the Collateral Agent.
SECTION 7.12 Nonpetition Covenant. Neither Purchaser nor Sellers
--------------------
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, AMTN or the Debtor 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, AMTN or the
Debtor (as defined in the Note Purchase Agreement) or any substantial part of
their respective property, or ordering the winding up or liquidation of the
affairs of the Purchaser, AMTN or the Debtor. This Section 7.12 shall be
continuing and shall survive any termination of this Agreement.
SECTION 7.13 Limitation of Liability of Trustee. It is expressly
----------------------------------
understood and agreed by the parties hereto that (a) this Agreement is executed
and delivered by Bankers Trust (Delaware), not individually or personally but
solely as Trustee of the Purchaser, in the exercise of the powers and authority
conferred and vested in it, (b) each of the representations, undertakings and
agreements herein made on the part of the Purchaser is made and intended not as
personal representations, undertakings and agreements by Bankers Trust
(Delaware) but is made and intended for the purpose for binding only the
Purchaser, (c) nothing herein contained shall be construed as creating any
liability on Bankers Trust (Delaware), individually or personally, to perform
any covenant either expressed or implied contained herein, all such liability,
if any, being expressly waived by the parties hereto and by any Person claiming
by, through or under the parties hereto and (d) under no circumstances shall
Bankers Trust (Delaware) be personally liable for the payment of any
indebtedness or expenses of the Purchaser or be liable for the breach or failure
of any obligation, representation, warranty or covenant made or undertaken by
the Purchaser under this Agreement or any other Transaction Documents.
SECTION 7.14 Additional Transfers. It is contemplated that from time
--------------------
to time on and/or after the date hereof that AFS will transfer (by sale or
contribution) to AMTN, pursuant to the provisions of a Sale Agreement
(substantially in the form of Exhibit A attached to the Sale and Contribution
Agreement), as of the Relevant Cutoff Date set forth therein, certain
Receivables, as described on the Schedule 1 attached to such Sale Agreement.
Furthermore, it is anticipated that such Receivables so transferred to AMTN
pursuant to a Sale Agreement will be retransferred by AMTN to the Purchaser
pursuant to the terms of this Agreement.
SECTION 7.15 Binding Effect. This Agreement shall be binding upon and
--------------
shall inure to the benefit of the parties hereto and their respective successors
and assigns. In
13
addition, each of the Secured Parties shall be an express third party
beneficiary hereof entitled to enforce the terms hereof as if it were a party
hereto. Concurrently with the appointment of a successor Collateral Agent under
the Security Agreement, the parties hereto shall amend this Agreement to make
said Collateral Agent, the successor to the Collateral Agent hereunder.
[Remainder of page intentionally left blank]
14
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.
AMERICREDIT MTN RECEIVABLES
TRUST III,
as Purchaser
By: BANKERS TRUST (DELAWARE), not in
its individual capacity but
solely as Trustee on behalf of
the Trust
By ___________________________________
Name:
Title:
AMERICREDIT FINANCIAL SERVICES, INC.,
as Seller
By ___________________________________
Name:
Title:
Americredit MTN Corp. III,
as Seller
By ___________________________________
Name:
Title:
JPMorgan Chase Bank
as Collateral Agent
By ___________________________________
Name:
Title:
[Master Receivables Purchase Agreement]
Exhibit A
---------
SUPPLEMENT
ASSIGNMENT No. [____] of Receivables made this __ day of
______________, 200_, among Americredit MTN Corp. III, a Delaware corporation
("AMTN"), AMERICREDIT FINANCIAL SERVICES, INC., a Delaware corporation ("AFS"
---- ---
and together with AMTN, the "Sellers") and AMERICREDIT MTN RECEIVABLES TRUST
-------
III, a Delaware business trust (the "Purchaser").
---------
W I T N E S S E T H:
WHEREAS, pursuant to the Sale Agreement (the form of which is attached
hereto as Addendum A), AFS wishes to sell/and or contribute Receivables to AMTN;
WHEREAS, the relevant Sellers wish to sell/and or contribute
Receivables to the Purchaser; and
WHEREAS, the Purchaser is willing to purchase or acquire as a
contribution such Receivables subject to the terms and conditions hereof.
NOW, THEREFORE, the Purchaser and the Sellers hereby agree as follows:
1. Defined Terms. Capitalized terms used herein shall have the
-------------
meanings ascribed to them in the Master Receivables Purchase Agreement, dated as
of February 25, 2002, (the "Purchase Agreement"), unless otherwise defined
------------------
herein.
"Relevant Cutoff Date" shall mean, with respect to the Receivables
--------------------
sold and/or contributed hereby, _____________ __, 200_.
"Receivables Transfer Date" shall mean, with respect to the
-------------------------
Receivables assigned hereby, the date hereof.
2. Schedule of Receivables. Annexed hereto are Schedule A and
-----------------------
Schedule B from AFS and AMTN, respectively, listing the Receivables sold and/or
contributed by it pursuant to this Supplement on the Receivables Transfer Date.
The term "Receivables" as used in this Supplement means and includes each and
every chattel paper and other form of receivable relating to the sale or
financing provided for new or used motor vehicles transferred by Sellers to
Purchaser pursuant to this Supplement and identified on the Schedule A and
Schedule B provided by AFS and AMTN, respectively, attached thereto, together
with all payment obligations thereunder and all proceeds thereof, including all
items listed in 2.1 to the Purchase Agreement. It is intended that Sellers will
transfer to Purchaser hereafter from time to time additional Receivables,
whether now existing or hereafter arising and wherever located.
3. Sale and/or Contribution of Receivables. (a) Each Seller, does
---------------------------------------
hereby sell and/or contribute, transfer, assign, set over and otherwise convey
to the Purchaser (the "Assignment"), without recourse (except as expressly
----------
provided in the Purchase Agreement), all
right, title and interest of such Seller in and to:
(i) each and every Receivable listed on the Schedule A and B
to this Supplement and all Collections thereon or in respect thereof
on or after the Relevant Cutoff Date;
(ii) the Related Security with respect to each Receivable;
(iii) all Proceeds and the rights to receive Proceeds with
respect to the Receivables from claims on any physical damage, credit
life or disability insurance policies or Collateral Insurance (if
any), covering Financed Vehicles or Obligors;
(iv) all rights under any service contracts on the related
Financed Vehicles;
(v) all rights of the Sellers against Dealers pursuant to
Dealer Agreements or Dealer Assignments;
(vi) all rights of the Sellers against Third Party Lenders
pursuant to Third Party Loan Purchase Agreements and/or Third Party
Assignments.
(vii) the related Records; and
(viii) all Proceeds of any or all of the foregoing.
(b) The Assignment is in consideration of the Purchaser's
delivery to or upon the order of Sellers as set forth below:
(i) $___________ to AFS; and
(ii) $___________ to AMTN.
4. Representations and Warranties of the Sellers.
---------------------------------------------
(a) Representations and Warranties of AFS. AFS hereby represents
-------------------------------------
and warrants to the Purchaser as of the Receivables Transfer Date
that:
(i) Purchase Agreement. The representations and
------------------
warranties set forth in the Purchase Agreement are true and
correct and with respect to any representation which relates to
Receivables or Other Conveyed Property with respect to the
related Receivables and Other Conveyed Property sold and/or
contributed pursuant to Section 3 hereof are true and correct.
(ii) Principal Balance. As of the Relevant Cutoff
-----------------
Date, the aggregate Outstanding Balance of the Receivables listed
on the Schedule of Receivables provided by AFS (annexed hereto as
Schedule A)
E-A-2
and sold to the Purchaser pursuant to this Supplement is
$___________________.
(b) Representations and Warranties of AMTN. AMTN hereby
--------------------------------------
represents and warrants to the Purchaser as of the Receivables
Transfer Date that:
(i) Purchase Agreement. The representations and
------------------
warranties set forth in the Purchase Agreement are true and
correct and with respect to any representation which relates to
Receivables or Other Conveyed Property with respect to the
related Receivables and Other Conveyed Property sold and/or
contributed pursuant to Section 3 hereof are true and correct.
(ii) Principal Balance. As of the Relevant Cutoff
-----------------
Date, the aggregate Outstanding Balance of the Receivables listed
on the Schedule of Receivables provided by AMTN (annexed hereto
as Schedule B) and sold to the Purchaser pursuant to this
Supplement is $__________________.
5. Conditions Precedent. The obligation of the Purchaser to acquire
--------------------
the Receivables hereunder is subject to the satisfaction, on or prior to the
Receivables Transfer Date, of the following conditions precedent:
(a) Representations and Warranties. Each of the representations
------------------------------
and warranties made by the Sellers in Section 4 of this Supplement and
by AFS in Section 3.1 and AMTN in Section 3.3 of the Purchase
Agreement shall be true and correct with respect to the property sold
and/or contributed pursuant to Section 3 hereof as of the Receivables
Transfer Date.
(b) Delivery of Receivable Files. The Seller shall have delivered
----------------------------
the Receivable Files to the Custodian and any other documents as the
Purchaser may request;
(c) Purchase Agreement Conditions. Each of the conditions set
-----------------------------
forth in Section 6.1 of the Purchase Agreement shall have been
satisfied with respect to the property sold pursuant to Section 3
hereof.
(d) Additional Information. The Sellers shall have delivered to
----------------------
the Purchaser such information as was reasonably requested by the
Purchaser to satisfy itself as to the satisfaction of the conditions
set forth in this Section 5.
6. Ratification of Agreement. As supplemented by this Supplement, the
-------------------------
Purchase Agreement is in all respects ratified and confirmed and the Purchase
Agreement as so supplemented by this Supplement shall be read, taken and
construed as one and the same instrument.
7. Counterparts. This Supplement may be executed in two or more
------------
counterparts (and by different parties in separate counterparts), each of which
shall be an original
E-A-3
but all of which together shall constitute one and the same instrument.
8. Intention of the Parties. (a) The execution and delivery of this
------------------------
Agreement shall constitute an acknowledgment by Sellers and Purchaser that they
intend that the assignments and transfers herein contemplated constitute a sale
and/or contribution, transfer 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 Sellers to Purchaser, and that the Receivables
and the Other Conveyed Property shall not be a part of Sellers' estates in the
event of the bankruptcy, reorganization, arrangement, insolvency or liquidation
proceeding, or other proceeding under any federal or state bankruptcy or similar
law, or the occurrence of another similar event, of, or with respect to Sellers.
In the event that such conveyance is determined to be made as security for a
loan made by Purchaser or the Secured Parties to Sellers, the parties intend
that Sellers shall have granted to Purchaser a security interest in all of
Sellers' right, title and interest in and to the Receivables and the Other
Conveyed Property conveyed pursuant to Section 3 of this Agreement and Section
2.1 of the Master Receivables Purchase Agreement, and that this Agreement shall
constitute a security agreement under applicable law.
(b) For federal income tax purposes, the parties hereto intend the
contribution of Receivables by the Sellers to the Purchaser to be characterized
as a contribution of property to a partnership in exchange for an interest in
the partnership in which no gain or loss shall be recognized pursuant to Section
721(a) of the Internal Revenue Code of 1986, as amended.
9. GOVERNING LAW. THIS SUPPLEMENT SHALL BE CONSTRUED IN ACCORDANCE
-------------
WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS CONFLICT OF LAW
PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER
SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
E-A-4
IN WITNESS WHEREOF, the Purchaser and the Sellers have caused this
Supplement to be duly executed and delivered by their respective duly authorized
officers as of the day and the year first above written.
AMERICREDIT MTN RECEIVABLES
TRUST III,
as Purchaser
By: AMERICREDIT FINANCIAL SERVICES, INC.,
attorney-in-fact
By_____________________________________________
Name:
Title:
AMERICREDIT FINANCIAL SERVICES, INC.,
as Seller
By_____________________________________________
Name
Title:
AMERICREDIT MTN CORP. III,
as Seller
By_____________________________________________
Name:
Title:
Acknowledged:
JPMORGAN CHASE BANK,
solely in its capacity as Collateral Agent
By___________________________________
Name
Title:
E-A-5