MASTER RECEIVABLES
PURCHASE AGREEMENT
AMONG
AMERICREDIT MTN RECEIVABLES TRUST,
AS PURCHASER,
AMERICREDIT FINANCIAL SERVICES, INC.,
INDIVIDUALLY AND AS SELLER,
AMERICREDIT MTN CORP.,
AS SELLER,
AND
THE CHASE MANHATTAN BANK,
AS COLLATERAL AGENT
DATED AS OF
DECEMBER 18, 2000
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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..............................................................................2
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....................................................................3
SECTION 3.1 Representations and Warranties of AFS....................................................3
SECTION 3.2 [Reserved]...............................................................................5
SECTION 3.3 Representations and Warranties of AMTN...................................................5
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
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
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Collateral Agent.....................................................................12
SECTION 7.12 Nonpetition Covenant....................................................................13
SECTION 7.13 Limitation of Liability of Trustee......................................................13
SECTION 7.14 Additional Transfers....................................................................13
EXHIBITS
Exhibit A -- Form of Supplement
Addendum A -- Form of Sale Agreement
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MASTER RECEIVABLES PURCHASE AGREEMENT
THIS MASTER RECEIVABLES PURCHASE AGREEMENT, dated as of
December 18, 2000, executed among AmeriCredit MTN Receivables Trust, a Delaware
business trust, as purchaser ("PURCHASER"), The Chase Manhattan Bank, as
collateral agent (the "COLLATERAL AGENT"), AmeriCredit MTN Corp., a Delaware
corporation, as seller ("AMTN") and AmeriCredit Financial Services, Inc., a
Delaware corporation, as seller ("AFS" and together with AMTN, 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 The Chase Manhattan 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 Addendum A hereto which is hereafter executed by AFS and
AMTN.
"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 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
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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
"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
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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 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 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
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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 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 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
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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,
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 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
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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 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
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.
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ARTICLE IV.
COVENANTS OF SELLERS
SECTION 4.1 LIENS IN FORCE. The Financed Vehicle securing
each 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 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 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
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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 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) the 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; and
(f) 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 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., 801 Cherry Street, Fort Worth, Texas
76102, Attention: Chief Financial Officer, (b) in the case of Purchaser, to
AmeriCredit MTN
11
Receivables Trust, c/o Bankers Trust (Delaware), E.A. Delle Donne Corporate
Center, Montgomery Building, 1011 Centre Road, Suite 200, Wilmington, Delaware
19085, Attention: Corporate Trust Administration, or (c) in the case of the
Collateral Agent, The Chase Manhattan Bank, 450 W. 22nd Street, New York, NY
10001, Attention: AmeriCredit MTN Receivables Trust, 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 Addendum A to Exhibit A attached hereto), as of
the Relevant Cutoff Date set forth therein, certain Receivables, as described
on the Schedule A 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,
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., as Seller
By
--------------------------------------------------
Name:
Title:
-------------------,
as Collateral Agent
By
--------------------------------------------------
Name:
Title:
[Receivables Purchase Agreement]
EXHIBIT A
SUPPLEMENT
ASSIGNMENT No. [____] of Receivables made this __ day of
______________, 200_, among AMERICREDIT MTN CORP., a Delaware corporation
("AMTN"), AMERICREDIT FINANCIAL SERVICES, INC., a Delaware corporation ("AFS"
and together with AMTN, the "SELLERS") and AMERICREDIT MTN RECEIVABLES TRUST, 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 December 18, 2000, (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) the related Records; and
(vii) 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 warrant 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) and
sold to the Purchaser pursuant to this Supplement is
$__________________.
E-A-2
(b) REPRESENTATIONS AND WARRANTIES OF AMTN. AMTN hereby
represents and warrant 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 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
E-A-3
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,
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.,
as Seller
By
----------------------------------------
Name:
Title:
Acknowledged:
THE CHASE MANHATTAN BANK,
solely in its capacity as Collateral Agent
By
----------------------------------------
Name:
Title:
E-A-5
ADDENDUM A
SALE AGREEMENT
ASSIGNMENT No. [____] of Receivables made this __ day of
______________, 200_, between AMERICREDIT MTN CORP., a Delaware corporation
("AMTN") and AMERICREDIT FINANCIAL SERVICES, INC., a Delaware corporation
("AFS").
W I T N E S S E T H:
WHEREAS, AFS wishes to sell/and or contribute Receivables
to AMTN; and
WHEREAS, AMTN is willing to purchase or acquire as a
contribution such Receivables subject to the terms and conditions hereof.
NOW, THEREFORE, AMTN and AFS 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 December 18, 2000 (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 as Schedule 1 is a
schedule from AFS listing the Receivables sold and/or contributed by it pursuant
to this Agreement on the Receivables Transfer Date. The term "Receivables" as
used in this Sale Agreement 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 AFS to AMTN pursuant to this Sale Agreement
and identified on the Schedule provided by AFS attached thereto, together with
all payment obligations thereunder and all proceeds thereof, including all items
set forth in Section 2.1 of the Purchase Agreement. It is intended that AFS will
transfer to AMTN hereafter from time to time additional Receivables, whether now
existing or hereafter arising and wherever located.
3. SALE AND/OR CONTRIBUTION OF RECEIVABLES. (a) AFS, does
hereby sell and/or contribute, transfer, assign, set over and otherwise convey
to AMTN (the "ASSIGNMENT"), without recourse (except as expressly provided in
the Purchase Agreement), all right, title and interest of AFS in and to:
(i) each and every Receivable listed on the Schedule
attached hereto 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 AFS against Dealers pursuant to Dealer
Agreements or Dealer Assignments;
(vi) the related Records; and
(vii) all Proceeds of any or all of the foregoing.
(b) The Assignment is in consideration of AMTN's
delivery to or upon the order of AFS of $____________.
4. REPRESENTATIONS AND WARRANTIES OF AFS.
(a) REPRESENTATIONS AND WARRANTIES OF AFS. AFS hereby
represents and warrant to AMTN 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 provided by AFS
(annexed hereto as Schedule A) and sold to AMTN
pursuant to this Agreement is $____________________.
5. CONDITIONS PRECEDENT. The obligation of AMTN 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 AFS in Section 4 of
this Agreement and by AFS in Section 3.1 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) PURCHASE AGREEMENT CONDITIONS. Each of the conditions
set forth
A-A-2
in Section 6.1 of the Purchase Agreement shall have been
satisfied with respect to the property sold pursuant to
Section 3 hereof.
(c) ADDITIONAL INFORMATION. AFS shall have delivered to
AMTN such information as was reasonably requested by AMTN to
satisfy itself as to the satisfaction of the conditions set
forth in this Section 5.
6. COUNTERPARTS. This Agreement may be executed in two or
more counterparts (and by different parties in separate counterparts), each of
which shall be an original but all of which together shall constitute one and
the same instrument.
7. INTENTION OF THE PARTIES. (a) The execution and delivery
of this Agreement shall constitute an acknowledgment by AFS and AMTN 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 AFS to AMTN, and that the Receivables and the
Other Conveyed Property shall not be a part of AFS' 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 AFS. In the event
that such conveyance is determined to be made as security for a loan made by
AMTN or the Secured Parties to AFS, the parties intend that AFS shall have
granted to AMTN a security interest in all of AFS' 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 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.
8. GOVERNING LAW. THIS AGREEMENT 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.
[Remainder of page intentionally left blank.]
A-A-3
IN WITNESS WHEREOF, AMTN and AFS have caused this Agreement to be duly
executed and delivered by their respective duly authorized officers as of the
day and the year first above written.
AMERICREDIT FINANCIAL SERVICES, INC.,
as Seller
By
----------------------------------------
Name:
Title:
AMERICREDIT MTN CORP.,
as Purchaser
By
----------------------------------------
Name:
Title:
A-A-4