Exhibit 99.5
MASTER RECEIVABLES
PURCHASE AGREEMENT
among
AMERICREDIT MTN RECEIVABLES TRUST
V,
as Purchaser,
AMERICREDIT FINANCIAL SERVICES,
INC.,
individually and as Seller,
AMERICREDIT MTN CORP. V,
as Seller,
and
WELLS FARGO BANK, NATIONAL
ASSOCIATION,
as Collateral Agent
dated as of
October 3, 2006
TABLE OF CONTENTS
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Page
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ARTICLE I.
DEFINITIONS
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1
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SECTION 1.1
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General
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1
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SECTION 1.2
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Specific
Terms
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1
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SECTION 1.3
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Usage of
Terms
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3
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SECTION 1.4
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No
Recourse
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3
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ARTICLE II.
CONVEYANCE OF THE RECEIVABLES AND THE OTHER CONVEYED
PROPERTY
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3
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SECTION 2.1
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Conveyance of
the Receivables and the Other Conveyed Property
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3
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ARTICLE III.
REPRESENTATIONS AND WARRANTIES
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4
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SECTION 3.1
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Representations
and Warranties of AFS
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4
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SECTION 3.2
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[Reserved]
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6
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SECTION 3.3
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Representations
and Warranties of AMC
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6
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ARTICLE IV.
COVENANTS OF SELLERS
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8
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SECTION 4.1
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Liens in
Force
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8
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SECTION 4.2
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No
Impairment
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8
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SECTION 4.3
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No
Amendments
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9
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SECTION 4.4
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Restrictions on
Liens
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9
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SECTION 4.5
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Preservation of
Collateral
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9
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SECTION 4.6
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Transfers
Treated as Sales
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9
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ARTICLE V.
REPURCHASES
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9
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SECTION 5.1
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Repurchase of
Receivables Upon Breach of Warranty
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9
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SECTION 5.2
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Reassignment of
Purchased Receivables
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10
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SECTION 5.3
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Waivers
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10
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ARTICLE VI.
CONDITIONS PRECEDENT
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10
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SECTION 6.1
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Conditions
Precedent to each Receivables Sale
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10
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ARTICLE VII.
MISCELLANEOUS
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12
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SECTION 7.1
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Liability of
Sellers
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12
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SECTION 7.2
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Merger or
Consolidation of Sellers
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12
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SECTION 7.3
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Limitation on
Liability of Sellers and Others
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12
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SECTION 7.4
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Amendment.
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12
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SECTION 7.5
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Notices
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12
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SECTION 7.6
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Merger and
Integration
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13
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SECTION 7.7
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Severability of
Provisions
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13
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SECTION 7.8
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Intention of
the Parties
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13
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SECTION 7.9
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Governing
Law
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13
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SECTION 7.10
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Counterparts
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13
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SECTION 7.11
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Conveyance of
the Receivables and the Other Conveyed Property to the Collateral
Agent
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13
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SECTION 7.12
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Nonpetition
Covenant
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14
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SECTION 7.13
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Limitation of
Liability of Owner Trustee
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14
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SECTION 7.14
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Additional
Transfers
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14
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SECTION 7.15
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Binding
Effect
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14
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EXHIBITS
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Exhibit A — Form of Supplement
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ii
MASTER RECEIVABLES PURCHASE
AGREEMENT
THIS MASTER RECEIVABLES PURCHASE
AGREEMENT, dated as of October 3, 2006, executed among
AmeriCredit MTN Receivables Trust V, a Delaware statutory trust, as
purchaser (“ Purchaser ”), Wells Fargo Bank,
National Association, as collateral agent (the “
Collateral Agent ”), AmeriCredit MTN Corp. V, a
Delaware corporation, as seller (“ AMC ”) and
AmeriCredit Financial Services, Inc., a Delaware corporation, as
seller (“ AFS ” and together with AMC, the
“ Sellers ”).
WITNESSETH
:
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 Wells Fargo Bank, National Association, 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.
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“ 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
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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 (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:
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(i)
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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;
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(ii)
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the Related
Security with respect to each Receivable;
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(iii)
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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;
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(iv)
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all rights
under any service contracts on the related Financed
Vehicles;
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(v)
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all rights of
the Sellers against Dealers pursuant to Dealer Agreements or Dealer
Assignments;
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(vi)
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all rights of
Seller against Third Party Lenders pursuant to Third Party Loan
Purchase Agreements and/or Third Party Assignments.
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(vii)
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the related
Records; and
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(viii)
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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 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
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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 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.
6
(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.
(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 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 AMC, or
any indenture, agreement, mortgage, deed of trust or other
instrument to which AMC is a party o