|
Exhibit
10.3
MASTER RECEIVABLES
PURCHASE AGREEMENT
among
AMERICREDIT MTN RECEIVABLES
TRUST IV,
as Purchaser,
AMERICREDIT FINANCIAL
SERVICES, INC.,
individually and as
Seller,
AMERICREDIT MTN CORP.
IV,
as Seller,
and
JPMORGAN CHASE
BANK,
as Collateral
Agent
dated as of
October 1, 2004
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
|
|
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 AMC |
|
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 |
|
9 |
|
SECTION 4.5
|
|
Preservation of Collateral |
|
9 |
|
SECTION 4.6
|
|
Transfers
Treated as Sales |
|
9 |
|
|
|
ARTICLE V. REPURCHASES
|
|
9 |
|
|
|
|
SECTION 5.1
|
|
Repurchase of Receivables Upon Breach of Warranty |
|
9 |
|
SECTION 5.2
|
|
Reassignment of Purchased Receivables |
|
10 |
|
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 |
|
12 |
|
SECTION 7.4
|
|
Amendment. |
|
12 |
|
SECTION 7.5
|
|
Notices |
|
12 |
|
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 |
|
13 |
|
SECTION 7.10
|
|
Counterparts |
|
13 |
|
SECTION 7.11
|
|
Conveyance of the Receivables and the Other Conveyed Property
to the Collateral Agent |
|
13 |
|
|
|
|
|
|
SECTION 7.12
|
|
Nonpetition Covenant |
|
13 |
|
SECTION 7.13
|
|
Limitation of Liability of Owner Trustee |
|
14 |
|
SECTION 7.14
|
|
Additional Transfers |
|
14 |
|
SECTION 7.15
|
|
Binding
Effect |
|
14 |
EXHIBITS
Exhibit A — Form of
Supplement
ii
MASTER RECEIVABLES
PURCHASE AGREEMENT
THIS MASTER RECEIVABLES
PURCHASE AGREEMENT, dated as of October 1, 2004, executed among
AmeriCredit MTN Receivables Trust IV, a Delaware statutory trust,
as purchaser (“ Purchaser ”), JPMorgan Chase
Bank, as collateral agent (the “ Collateral Agent
”), AmeriCredit MTN Corp. IV, a Delaware corporation, as
seller (“ AMC ”) and AmeriCredit Financial
Services, Inc., a Delaware corporation, as seller (“
AFS ” and together with AMC, the “
Sellers ”).
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 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
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.
“ Related
Security ” means with respect to any
Receivable:
(i) all of the Sellers’
interest in the Financed Vehicles (including repossessed vehicles)
or in any document or writing evidencing any security interest in
any Financed Vehicle and all of the Sellers’ interest in all
rights to payment under all insurance contracts with respect to a
Financed Vehicle, including, without limitation, any monies
collected form whatever source in connection with any default of an
Obligor with respect to a Financed Vehicle and any proceeds from
claims or refunds of premiums on any physical damage,
lender’s single interest, credit life, disability and
hospitalization insurance policies covering Financed Vehicles or
Obligors;
(ii) all of the
Sellers’ interest in all other security interests or liens
and property subject thereto from time to time, if any, purporting
to secure payment of such Receivable, whether pursuant to the
Contract related thereto or otherwise, together with all financing
statements signed by an Obligor and security agreements describing
any collateral securing such Contract;
(iii) all of the
Sellers’ interest in all guaranties, indemnities, warranties,
insurance (and proceeds and premium refunds thereof) and other
agreements or arrangements of whatever character from time to time
supporting or securing payment of such Receivable, whether pursuant
to the Contract related to such Receivable or otherwise;
(iv) all of the
Sellers’ interest in all rights to payment under all service
contracts and other contracts and agreements associated with such
Receivables and all of the Sellers’ interest in all recourse
rights against the dealers (excluding any rights in any dealer
reserve);
(v) all of the Sellers’
interest in all Records, documents and writings evidencing or
related to such Receivables or the Contracts;
(vi) all of the
Sellers’ interest, rights and remedies under this Agreement;
and
(vii) all Proceeds of the
foregoing.
“ 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.
2
“ 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 AMC.
“ Sale and
Contribution Agreement ” means the Sale and Contribution
Agreement, dated as of the dated hereof, by and between AMC (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), AMC 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
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 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.”
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 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
3
“ Conveyance ”)
without recourse (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. |
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
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 AMC) as of the date hereof
and the Receivables Transfer Date is an Eligible
Receivable.
4
(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 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 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 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
5
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 801
Cherry Street, Fort Worth, Texas 76102.
(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 Transfer Date and no
Conveyance will cause AFS to become insolvent.
SECTION 3.2
[Reserved]
SECTION 3.3
Representations and Warranties of AMC . AMC 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 AMC 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. AMC
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 AMC in the Collateral Agent’s own name on
behalf of the Secured Parties.
(a) Eligible
Receivables . Upon each Receivables Transfer Date, 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 AMC) as of the date hereof
and the Receivables Transfer Date is an Eligible
Receivable.
6
(b) Organization and Good
Standing . AMC 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 . AMC 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; AMC 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 AMC’s Transaction Documents have been duly
authorized by AMC by all necessary corporate action.
(d) Due Qualification
. AMC 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 AMC’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 AMC and creditors of and purchasers from AMC;
and this Agreement and AMC’s Transaction Documents constitute
legal, valid and binding obligations of AMC enforceable in
accordance with their respective terms, except as enforceability
may be limited by bankruptcy, insolvency, reorganization or other
similar laws af
|