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EXHIBIT 10.1
EXECUTION COPY
PURCHASE AGREEMENT
BETWEEN
AFS SENSUB CORP.
PURCHASER
AND
AMERICREDIT FINANCIAL SERVICES, INC.
SELLER
DATED AS OF APRIL 6, 2005
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TABLE OF CONTENTS
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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
[Reserved]...........................................................................
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
[Reserved]...........................................................................
6
SECTION 3.3 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...................................................................
9
SECTION 4.4
Indemnification......................................................................
9
ARTICLE V.
REPURCHASES...............................................................................
11
SECTION 5.1 Repurchase of
Receivables Upon Breach of
Warranty.................................... 11
SECTION 5.2 Reassignment of
Purchased
Receivables................................................
12
SECTION 5.3
Waivers..............................................................................
12
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......................................... 13
SECTION 6.4 Seller May Own Notes
or the Certificate..............................................
14
SECTION 6.5
Amendment............................................................................
14
SECTION 6.6
Notices..............................................................................
14
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........................................................................
15
SECTION 6.11
Counterparts.........................................................................
15
SECTION 6.12 Conveyance of the
Receivables and the Other Conveyed Property to the Issuer..........
15
SECTION 6.13 Nonpetition
Covenant.................................................................
16
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SCHEDULES
Schedule A - Schedule of Receivables
Schedule B - Representations and Warranties
from Seller as to the Receivables
i
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PURCHASE AGREEMENT
THIS PURCHASE AGREEMENT, dated as of April 6, 2005, executed
between AFS SenSub Corp., a Nevada
corporation, as purchaser ("Purchaser"), and
AmeriCredit Financial Services, Inc., a
Delaware corporation, as seller
("Seller").
W I T N E S S E T H :
WHEREAS, Purchaser has agreed to purchase from Seller, and
Seller, pursuant to this Agreement, is
transferring to Purchaser the Receivables
and Other Conveyed Property.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements hereinafter contained, and other
good and valuable consideration, the
receipt of which is acknowledged, Purchaser
and Seller, intending to be legally
bound, hereby agree as follows:
ARTICLE I.
DEFINITIONS
SECTION 1.1 General. The
specific terms defined in this
Article include the plural as well as the
singular. The words "herein", "hereof"
and "hereunder" and other words of similar
import refer to this Agreement as a
whole and not to any particular Article,
Section or other subdivision, and
Article, Section, Schedule and Exhibit
references, unless otherwise specified,
refer to Articles and Sections of and
Schedules and Exhibits to this Agreement.
Capitalized terms used herein without
definition shall have the respective
meanings assigned to such terms in the Sale
and Servicing Agreement dated as of
April 6, 2005, by and among AFS SenSub
Corp. (as Seller), AmeriCredit Financial
Services, Inc. (in its individual capacity
and as Servicer), AmeriCredit
Automobile Receivables Trust 2005-1 (as
Issuer), JPMorgan Chase Bank, National
Association as Trust Collateral Agent and
System & Services Technologies, Inc.
as Backup Servicer.
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 April 14, 2005.
"Issuer" means AmeriCredit Automobile Receivables Trust 2005-1.
"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(b), (c),
(d), (e), (f), (h) and (i) of the Sale
and Servicing Agreement.
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"Owner Trustee" means Wilmington Trust Company, as Owner
Trustee
appointed and acting pursuant to the Trust
Agreement.
"Receivables" means the Receivables listed on the Schedule of
Receivables attached hereto.
"Related Documents" means the Notes, the Certificate, the
Custodian Agreement, the Sale and Servicing
Agreement, the Indenture, the Trust
Agreement, the Lockbox Agreement, the
Underwriting Agreement and the Note
Purchase Agreement. The Related Documents
to be executed by any party are
referred to herein as "such party's Related
Documents," "its Related Documents"
or by a similar expression.
"Repurchase Event" means the occurrence of a breach of any of
Seller's representations and warranties
hereunder or any other event which
requires the repurchase of a Receivable by
Seller under the Sale and Servicing
Agreement.
"Sale and Servicing Agreement" means the Sale and Servicing
Agreement referred to in Section 1.1
hereof.
"Schedule of 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 JPMorgan Chase Bank, National
Association, as trust collateral agent and
any successor trust collateral agent
appointed and acting pursuant to the
Indenture.
"Trustee" means JPMorgan Chase 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.
2
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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 1.6 [Reserved].
ARTICLE II.
CONVEYANCE OF THE RECEIVABLES
AND THE OTHER CONVEYED PROPERTY
SECTION 2.1 Conveyance of
the Receivables and the Other
Conveyed Property.
(a)
Subject to the terms and conditions of this Agreement,
Seller
hereby sells, transfers, assigns, and otherwise conveys to
Purchaser without recourse (but without limitation of its
obligations in
this Agreement), and Purchaser hereby purchases, all right, title
and
interest of Seller in and to the 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 Other Conveyed Property conveyed to
Purchaser by Seller pursuant to this Agreement including (a)
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, (b) any proceeds and the right to
receive any 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, (c) any proceeds from
any Receivable repurchased by a Dealer, pursuant to a Dealer
Agreement, as a result of a breach of representation or
warranty
in the related Dealer Agreement, (d) any proceeds from any
Receivable repurchased by a Third-Party Lender, pursuant to an
Auto Loan Purchase and Sale Agreement, as a result of a breach
of representation or warranty in the related Auto Loan Purchase
and Sale Agreement, (e) all rights under any Service Contracts
on the related Financed Vehicles and (f) the related Receivable
Files,
3
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(3)
all of the Seller's (a) Accounts, (b)
Chattel Paper, (c) Documents, (d) Instruments, and (e) General
Intangibles (as such terms are defined in the applicable UCC)
relating to the property described in items (1) and (2), and
(4)
all proceeds and investments with respect to
items (1), (2) and (3) above.
(b)
Simultaneously with the conveyance of the Receivables
and the Other Conveyed Property to Purchaser, Purchaser has paid
or
caused to be paid to or upon the order of Seller, an amount equal
to the
book value of the Receivables, as set forth on the books and
records of
Seller, a portion by wire transfer of immediately available funds
and
the remainder as a contribution to the capital of the Purchaser
(a
wholly-owned
subsidiary of Seller).
SECTION 2.2 [Reserved].
ARTICLE III.
REPRESENTATIONS AND WARRANTIES
SECTION 3.1 Representations
and Warranties of Seller.
Seller makes the following representations
and warranties as of the date hereof,
and 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. Such
representations are made as of the
execution and delivery of this Agreement, but
shall survive the sale, transfer and
assignment of the Receivables and the Other
Conveyed Property hereunder, and the sale,
transfer and assignment thereof by
Purchaser to the Issuer under the Sale and
Servicing Agreement. Seller and
Purchaser agree that Purchaser will assign
to Issuer all Purchaser's rights
under this Agreement and that the Trustee
will thereafter be entitled to enforce
this Agreement against Seller in the
Trustee's own name on behalf of the
Noteholders.
(a)
Schedule of Representations. The representations and
warranties set forth on the Schedule of Representations with
respect to
the Receivables as of the date hereof and 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.
4
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(d)
Power and Authority. Seller has the power and authority
to execute and deliver this Agreement and its Related Documents and
to
carry out its terms and their terms, respectively; Seller has full
power
and authority to sell and assign the Receivables and the Other
Conveyed
Property to be sold and assigned to and deposited with
Purchaser
hereunder and has duly authorized such sale and assignment to
Purchaser
by all necessary corporate action; and the execution, delivery
and
performance of this Agreement and Seller's Related Documents have
been
duly authorized by Seller by all necessary corporate action.
(e)
Valid Sale; Binding Obligations. This Agreement and
Seller's Related Documents have been duly executed and delivered,
shall
effect a valid sale, transfer and assignment of the Receivables and
the
Other Conveyed Property to the Purchaser, enforceable against
Seller and
creditors of and purchasers from Seller; and this Agreement and
Seller's
Related Documents constitute legal, valid and binding obligations
of
Seller enforceable in accordance with their respective terms,
except as
enforceability may be limited by bankruptcy, insolvency,
reorganization
or other similar laws affecting the enforcement of creditors'
rights
generally and by equitable limitations on the availability of
specific
remedies, regardless of whether such enforceability is considered
in a
proceeding in equity or at law.
(f)
No Violation. The consummation of the transactions
contemplated by this Agreement and the Related Documents, and
the
fulfillment of the terms of this Agreement and the Related
Documents,
shall not conflict with, result in any breach of any of the terms
and
provisions of, or constitute (with or without notice, lapse of time
or
both) a default under, the articles of incorporation or bylaws
of
Seller, or any indenture, agreement, mortgage, deed of trust or
other
instrument to which Seller is a party or by which it is bound, or
result
in the creation or imposition of any Lien upon any of its
properties
pursuant to the terms of any such indenture, agreement, mortgage,
deed
of trust or other instrument, other than this Agreement, the Sale
and
Servicing Agreement and the Indenture, or violate any law, order,
rule
or regulation applicable to Seller of any court or of any federal
or
state regulatory body, administrative agency or other
governmental
instrumentality having jurisdiction over Seller or any of its
properties.
(g)
No Proceedings. There are no proceedings or
investigations pending or, to Seller's knowledge, threatened
against
Seller, before any court, regulatory body, administrative agency
or
other tribunal or governmental instrumentality having jurisdiction
over
Seller or its properties (i) asserting the invalidity of this
Agreement
or any of the Related Documents, (ii) seeking to prevent the
issuance of
the Notes or the consummation of any of the transactions
contemplated by
this Agreement or any of the Related Documents, (iii) seeking
any
determination or ruling that might materially and adversely affect
the
performance by Seller of its obligations under, or the validity
or
enforceability of, this Agreement or any of the Related Documents
or
(iv) seeking to affect adversely the federal income tax or
other
federal, state or local tax attributes of, or seeking to impose
any
excise, franchise, transfer or similar tax upon, the transfer
and
acquisition of the Receivables and the Other Conveyed Property
hereunder
or under the Sale and Servicing Agreement.
5
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(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 [Reserved].
SECTION 3.3 Representations
and Warranties of Purchaser.
Purchaser makes the following
representations and warranties, on which Seller
relies in selling, assigning, transferring
and conveying the Receivables and the
Other Conveyed Property to Purchaser
hereunder. Such representations are made as
of the execution and delivery of this
Agreement, but shall survive the sale,
transfer and assignment of the Receivables
and the Other Conveyed Property
hereunder and the sale, transfer and
assignment thereof by Purchaser to the
Issuer under the Sale and Servicing
Agreement.
(a)
Organization and Good Standing. Purchaser has been duly
organized and is validly existing and in good standing as a
corporation
under the laws of the State of Nevada, with the power and authority
to
own its properties and to conduct its business as such properties
are
currently owned and such business is currently conducted, and had
at all
relevant times, and has, full power, authority and legal right
to
acquire and own
the Receivables and the Other Conveyed Property, and to
transfer the Receivables and the Other Conveyed Property to the
Issuer
pursuant to the Sale and Servicing Agreement.
(b)
Due Qualification. Purchaser is duly qualified to do
business as a foreign corporation in good standing, and has
obtained all
necessary licenses and approvals in all jurisdictions where the
failure
to do so would materially and adversely affect Purchaser's ability
to
acquire the Receivables or the Other Conveyed Property, and to
transfer
the Receivables and the Other Conveyed Property to the Issuer
pursuant
to the Sale and Servicing Agreement, or the validity or
enforceability
of the
Receivables and the Other Conveyed Property or to perform
Purchaser's obligations hereunder and under the Purchaser's
Related
Documents.
(c)
Power and Authority. Purchaser has the power, authority
and legal right to execute and deliver this Agreement and to carry
out
the terms hereof and to acquire the Receivables and the Other
Conveyed
Property hereunder; and the execution, delivery and performance of
this
Agreement and all of the documents required pursuant hereto have
been
duly authorized by Purchaser by all necessary 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.
6
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(e)
Binding Obligation. This Agreement constitutes a legal,
valid and binding obligation of Purchaser, enforceable against
Purchaser
in accordance with its terms, subject, as to enforceability, to
applicable bankruptcy, insolvency, reorganization,
conservatorship,
receivership, liquidation and other similar laws and to general
equitable principles.
(f)
No Violation. The execution, delivery and performance by
Purchaser of this Agreement, the consummation of the
transactions
contemplated by this Agreement and the Related Documents and
the
fulfillment of the terms of this Agreement and the Related
Documents do
not and will not conflict with, result in any breach of any of the
terms
and provisions of, or constitute (with or without notice or lapse
of
time) a default under, the certificate of incorporation or bylaws
of
Purchaser, or conflict with or breach any of the terms or
provisions of,
or constitute (with or without notice or lapse of time) a default
under,
any indenture, agreement, mortgage, deed of trust or other
instrument to
which Purchaser is a party or by which Purchaser is bound or to
which
any of its properties are subject, or result in the creation or
imposition of any Lien upon any of its properties pursuant to the
terms
of any such indenture, agreement, mortgage, deed of trust or
other
instrument (other than the Sale and Servicing Agreement), or
violate any
law, order, rule or regulation, applicable to Purchaser or its
properties, of any federal or state regulatory body, any court,
administrative agency, or other governmental instrumentality
having
jurisdiction over Purchaser or any of its properties.
(g)
No Proceedings. There are no proceedings or
investigations pending, or, to the knowledge of Purchaser,
threatened
against Purchaser, before any court, regulatory body,
administrative
agency, or other tribunal or governmental instrumentality
having
jurisdiction over Purchaser or its properties: (i) asserting
the
invalidity of this Agreement or any of the Related Documents,
(ii)
seeking to prevent the consummation of any of the transactions
contemplated by this Agreement or any of the Related Documents,
(iii)
seeking any determination or ruling that might materially and
adversely
affect the performance by Purchaser of its obligations under, or
the
validity or enforceability of, this Agreement or any of the
Related
Documents or (iv) that may adversely affect the federal or state
income
tax attributes of, or seeking to impose any excise, franchise,
transfer
or similar tax upon, the transfer and acquisition of the
Receivables and
the Other Conveyed Property hereunder or the transfer of the
Receivables
and the Other Conveyed Property to the Issuer pursuant to the Sale
and
Servicing Agreement.
In the event of any breach of a representation and warranty
made
by Purchaser hereunder, Seller covenants
and agrees that it will not take any
action to pursue any remedy that it may
have hereunder, in law, in equity or
otherwise, until a year and a day have
passed since the date on which all Notes,
Certificates, pass-through certificates or
other similar securities issued by
Purchaser, or a trust or similar vehicle
formed by Purchaser, have been paid in
full. Seller and Purchaser agree that
damages will not be an adequate remedy for
such breach and that this covenant may be
specifically enforced by Purchaser,
Issuer or by the Trustee on behalf of the
Noteholders and Owner Trustee on
behalf of the Certificateholder.
7
<PAGE>
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 and the Trust Collateral Agent file-stamped copies of,
or
filing receipts for, any document filed as provided above, as soon
as
available following such filing. In the event that Seller fails
to
perform its obligations under this subsection, Purchaser, Issuer or
the
Trust Collateral Agent may do so, at the expense of Seller. In
furtherance of the foregoing, the Seller hereby authorizes the
Purchaser, the Issuer or the Trust Collateral Agent to file a
record or
records (as defined in the applicable UCC), including, without
limitation, financing statements, in all jurisdictions and with
all
filing offices as each may determine, in its sole discretion,
are
necessary or advisable to perfect the security interest granted to
the
Purchaser pursuant to Section 6.9 of this Agreement. Such
financing
statements may describe the collateral in the same manner as
described
herein or may contain an indication or description of collateral
that
describes such property in any other manner as such party may
determine,
in its sole discretion, is necessary, advisable or prudent to
ensure the
perfection of the security interest in the collateral granted to
the
Purchaser herein.
(b)
Seller shall not change its name, identity, state of
incorporation or corporate structure in any manner that would,
could or
might make any financing statement or continuation statement filed
by
Seller (or by Purchaser, Issuer or the Trust Collateral Agent on
behalf
of Seller) in accordance with paragraph (a) above seriously
misleading
within the meaning of Section 9-506 of the applicable UCC, unless
they
shall have given Purchaser, Issuer and the Trust Collateral Agent
at
least 60 days' prior written notice thereof, and shall promptly
file
appropriate amendments to all previously filed financing statements
and
continuation statements.
(c)
Seller shall give Purchaser, the Issuer and the Trust
Collateral Agent at least 60 days' prior written notice of any
relocation that would result in a change of the 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.
8
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(d)
Prior to the Closing Date, Seller has maintained
accounts and records as to each Receivable accurately and in
sufficient
detail to permit (i) the reader thereof to know at any time as of
or
prior to the Closing Date the status of such Receivable,
including
payments and recoveries made and payments owing (and the nature of
each)
and (ii) reconciliation between payments or recoveries on (or
with
respect to) each Receivable and the Principal Balance as of the
Closing
Date. Seller shall maintain its computer systems so that, from and
after
the time of sale under this Agreement of the Receivables to
Purchaser,
and the conveyance of the Receivables by Purchaser to the
Issuer,
Seller's master computer records (including archives) that shall
refer
to a Receivable indicate clearly that such Receivable has been sold
to
Purchaser and has been conveyed by Purchaser to the Issuer.
Indication
of the Issuer's
ownership of a Receivable shall be deleted from or
modified on Seller's computer systems when, and only when, the
Receivable shall become a Purchased Re
