Exhibit 10.1
AMENDMENT NO. 2
to
CREDIT AGREEMENT
between
AMERICREDIT FINANCIAL SERVICES OF CANADA LTD.
and
AMERICREDIT FINANCIAL SERVICES, INC.
and
MERRILL LYNCH CAPITAL CANADA INC.
DATED AS OF FEBRUARY 1, 2002
THIS AMENDMENT NO. 2 to the CREDIT AGREEMENT (this "Amendment") is made as
of the 1st day of February, 2002.
B E T W E E N:
AMERICREDIT FINANCIAL SERVICES OF CANADA LTD., a corporation
incorporated pursuant to the laws of the Province of Ontario
(the "Borrower")
- and -
AMERICREDIT FINANCIAL SERVICES, INC., a corporation
incorporated pursuant to the laws of the State of Delaware
(the "Custodian")
- and -
MERRILL LYNCH CAPITAL CANADA INC., a corporation incorporated
pursuant to the laws of the Province of Ontario
(the "Lender")
RECITALS:
WHEREAS, the Borrower, the Custodian and the Lender entered into a Credit
Agreement dated as of August 23, 2001, as amended by Amendment No. 1 made as of
November 12, 2001 (collectively, the "Credit Agreement"); and
WHEREAS, the parties desire to amend the Credit Agreement as provided herein;
NOW, THEREFORE, for good and valuable consideration (the receipt and sufficiency
of which are hereby acknowledged by each of the parties hereto), the parties
hereto hereby agree as follows:
1. Defined Terms.
In this Amendment, unless something in the subject matter or the context is
inconsistent therewith, capitalized terms used and not otherwise defined herein
shall have the respective meanings attributed to such terms in Schedule A to the
Credit Agreement.
2. Amendments to Credit Agreement.
(a) Section 2.4.2(b)(iii) of the Credit Agreement is hereby deleted in its
entirety, and the following language is inserted in lieu thereof:
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(iii) results in there being no Excess Advances (based on a
Receivables Borrowing Base taking into account such
Receivables).
(b) Section 3.1.1 of the credit Agreement is hereby deleted in its entirety
and the following is inserted in lieu thereof:
3.1.1 Each Advance shall bear interest in Canadian Dollars during
each Interest Period applicable thereto, on the outstanding
amount of such Advance, at a rate per annual equal to the CDOR
for such Interest Period plus 1.25% per annum; provided that in
the case of an Advance or a portion thereof which when added to
all outstanding Advances made on a date prior to such Advance
results in the aggregate of all Advances exceeding
$150,000,000, the rate per annum applicable to such Advance or
such portion thereof, as the case may be, shall be the CDOR for
such Interest Period plus 1.50% per annum.
(c) Article 3 of the Credit Agreement is hereby amended by adding the
following thereto:
3.7 Non-Utilization Fee
The Borrower shall pay in respect of each Interest Period a fee
(the "Non-Utilization Fee") equal to 20 basis points multiplied
by the number of days in the Interest Period divided by 365 on
the positive difference, if any, between (i) the Credit
Facility Limit and (ii) the average daily (as calculated at the
close of business on each day) sum of the aggregate outstanding
Advances during such Interest Period. The Non-Utilization Fee
for an Interest Period shall be paid on the Payment Date
immediately following such Interest Period.
3.8 Maturity Date Extension
3.8.1 The Lender may extend the existing Maturity Date to August 22,
2003 by giving written notice to that effect to the Borrower on
or prior to July 22, 2002.
3.8.2 If the Lender is willing to extend the existing Maturity Date
pursuant to Section 3.8.1, the Borrower shall pay to the Lender
on August 22, 2002 an extension fee (an "Extension Fee") of
$250,000.
3.8.3 If the Lender is willing to extend the existing Maturity Date
pursuant to Section 3.8.1 and the Borrower is not, the Borrower
shall pay to the Lender on August 22, 2002, the Extension Fee
of $250,000 and the facility will terminate on the existing
Maturity Date.
3.8.4 The Borrower agrees with the Lender that (i) an Extension Fee
shall be conclusively deemed to have been fully earned on the
date on which the Lender offers to extend the existing Maturity
Date and, once paid, shall
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not be refundable in whole or in part in any circumstances, and
(ii) payment of an Extension Fee shall not constitute or give
rise to any obligation on the part of the Lender to make any
Advance under this Agreement, other than in accordance with the
terms of this Agreement.
(d) The definition of "Advance Rate" in Schedule A to the Credit Agreement
is hereby deleted in its entirety, and the following is inserted in lieu
thereof:
"Advance Rate" means (i) prior to the occurrence of a Step-Up Trigger
Event, (A) 70%, in the case of Eligible Receivables which Contracts
form part of the Collateral (including those to be added to the
Collateral pursuant to a Drawdown Notice), provide for more than 60
monthly payments and result in the number of such Contracts exceeding
25% (in terms of outstanding balance) of all Contracts forming part of
the Collateral; and (B) otherwise, 75%; or (ii) 70% from and after the
occurrence of a Step-Up Trigger Event.
(e) The definition of "Credit Facility Limit" in Schedule A to the Credit
Agreement is hereby deleted in its entirety, and the following is inserted in
lieu thereof:
"Credit Facility Limit" means, (i) on any day during the period from
February 1, 2002 to and including August 22, 2002, the lesser of (A)
$200,000,000, and (B) the Borrowing Base on such day and (ii) at any
other time, the lesser of (A) $150,000,000, and (B) the Borrowing Base
at such time.
(f) The definition of "Maturity Date" in Schedule A to the Credit Agreement
is hereby deleted in its entirety, and the following is inserted in lieu
thereof:
"Maturity Date" means, subject to an extension pursuant to Section 3.8,
August 22, 2002.
(g) Clause (a) of the definition of "Receivables Borrowing Base" in
Schedule A to the Credit Agreement is hereby deleted in its entirety and the
following is inserted in lieu thereof:
(a) the sum of the product of (i) the Outstanding Balance of each
Eligible Receivable forming part of the Collateral at the close of
business on the Borrowing Base Determination Date, and (ii) the Advance
Rate for such Eligible Receivable,
(h) Schedule B to the Credit Agreement is hereby amended in the following
manner:
(i) Section 2(b) is deleted and Section 2(c) becomes Section 2(b); and
(ii) Section 4 is deleted in its entirety, and the following language
is inserted in lieu thereof:
4. The Aggregate Outstanding Balance of the Eligible
Receivables identified in the attached Schedule of Contracts
is Cdn. $___________. The Aggregate Outstanding Balance of
the
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Eligible Receivables identified in the attached Schedule
of Contracts to which an Advance Rate of 70% is applicable
is Cdn. $___________.
(i) Section 5 of Schedule D to the Credit Agreement is hereby deleted
in its entirety, and the following language is inserted in lieu thereof:
5. The aggregate outstanding Advances made by the Lender to the
Borrower following the repayment referred to herein will not
exceed the Credit Facility Limit on the date of such repayment
(which Credit Facility Limit will take into account the
reduction of the Borrowing Base as a result of the removal of
those Receivables referred to in Section 3 immediately above
from the Eligible Receivables forming part of the Collateral).
(j) Section 2(d) of Schedule I to the Credit Agreement is hereby
deleted in its entirety, and the following language is inserted in lieu thereof:
(d) the Aggregate Outstanding Balance of the Eligible Receivables
forming part of the Collateral to which an Advance Rate of 70%
is applicable is Cdn. $___________.
(k) Paragraph (h) of Schedule J to the Credit Agreement is hereby
deleted in its entirety, and the following is inserted in lieu thereof:
(h) the addition of the related Contract to the Contracts forming
part of the Collateral does not cause the aggregate number of
all Contracts forming part of the Collateral which provide for
more than 60 monthly payments to exceed (i) 40% (in terms of
outstanding balance) prior to the occurrence of a Step-Up
Trigger Event, or (ii) 25% (in terms of outstanding balance)
from and after the occurrence of a Step-Up Trigger Event, of
all Contracts forming part of the Collateral;
3. Representations and Warranties.
To induce the Lender to enter into this Amendment, each of the Borrower and
the Custodian hereby represents and warrants (each as to itself) as of the date
hereof that:
(a) It has the power, authority and legal right to make and deliver this
Amendment and to perform its obligations under the Credit Agreement, as amended
by this Amendment, as applicable, without any notice, consent, approval or
authorization not already obtained, and it has taken all necessary action to
authorize the same.
(b) The making and delivery of this Amendment and the performance of the
Credit Agreement, as amended by this Amendment, do not violate any provision of
law or any regulation, or its charter or by-laws, or result in the breach of or
constitute a default under or require any consent under any indenture or other
agreement or instrument to which it is a party or by which it or any of its
properties may be bound or affected. The Credit Agreement, as amended by this
Amendment, as applicable, constitutes its legal, valid and binding obligation,
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enforceable against it in accordance with its terms, except as the
enforceability thereof may be limited by any applicable bankruptcy,
reorganization, insolvency, moratorium or other laws affecting creditors' rights
generally.
(c) The representations and warranties made by it contained in the Credit
Agreement are true and correct in all material respects on and as of the date of
this Amendment and after giving effect hereto, except for those representations
and warranties that address matters only as of a particular prior date.
(d) No Event of Default or Pending Event of Default has occurred and is
continuing under the Credit Agreement on and as of the date of this Amendment
and after giving effect to hereto.
4. Reference to and Effect on the Credit Agreement.
(a) On and after the date of this Amendment, each reference in the Credit
Agreement, to "this Agreement," "hereunder," "hereof' or words of like import,
and each reference in any other Credit Document to "the Credit Agreement,"
"thereunder," "thereof' or words of like import referring to the Credit
Agreement, shall mean and be a reference to the Credit Agreement as amended
hereby.
(b) Except as specifically amended hereby, the Credit Agreement and the
Credit Documents shall continue to be in full force and effect and is hereby in
all respects ratified and confirmed.
(c) The execution, delivery and effectiveness of this Amendment shall not,
except as expressly provided herein, operate as a waiver of any right, power or
remedy of the Lender under any of the Credit Documents.
5. Counterparts.
This Amendment may be signed in any number of counterparts, each of which
shall be an original and all of which taken together shall constitute a single
instrument with the same effect as if the signatures thereto and hereto were
upon the same instrument.
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6. Governing Law.
This Amendment shall be governed by and construed in accordance with the
laws of the Province of Ontario and the federal laws of Canada applicable in
Ontario.
IN WITNESS WHEREOF, the parties hereto have duly executed this Amendment as
of the date first written above.
AMERICREDIT FINANCIAL SERVICES OF CANADA LTD.
By: ______________________________________________
Name: Connie Coffey
Title: Vice President, Non-Public
Financings and Reporting
AMERICREDIT FINANCIAL SERVICES, INC.
By: ______________________________________________
Name: Kate Harlow
Title: Vice President, Finance
MERRILL LYNCH CAPITAL CANADA INC.
By: ______________________________________________
Name:
Title:
CONSENT OF GUARANTOR
The Guarantor hereby consents to the making, execution and delivery of
Amendment No. 2, dated as of February 1, 2002, to the Credit Agreement dated as
of August 23, 2001 by and among AmeriCredit Financial Services of Canada Ltd.,
as Borrower, AmeriCredit Financial Services, Inc., as Custodian, and Merrill
Lynch Capital Canada Inc., as Lender, as amended by Amendment No. 1 made as of
November 12, 2001.
Dated as of February 1, 2002.
AMERICREDIT CORP.
By: ______________________________________
Preston A. Miller
Executive Vice President and Treasurer