EXHIBIT 10.17
EXECUTION DRAFT
AMENDMENT NO. 1 TO AMENDED AND RESTATED
CLASS A-1 NOTE PURCHASE AGREEMENT
This AMENDMENT NO. 1 TO AMENDED AND RESTATED CLASS A-1 NOTE PURCHASE
AGREEMENT, dated as of March 5, 2003 (this "Amendment"), is entered into among
AMERICREDIT MASTER TRUST (the "Issuer"), AMERICREDIT FUNDING CORP. VII (a
"Seller"), AMERICREDIT FINANCIAL SERVICES, INC. (a "Seller" and the "Servicer"),
DEUTSCHE BANK TRUST COMPANY AMERICAS, formerly known as Bankers Trust Company
(the "Administrative Agent"), each of the CLASS A-1 PURCHASERS parties hereto
(the "Purchasers"), DEUTSCHE BANK AG, NEW YORK BRANCH, as Agent, and each of the
other Agents parties hereto.
RECITALS
1. The Issuer, Sellers, the Servicer, the Administrative Agent, the
Purchasers and the Agents are parties to those certain Amended and Restated
Class A-1 Note Purchase Agreement, dated as of February 22, 2002 (as previously
amended and as amended, supplemented or otherwise modified from time to time,
the "Note Purchase Agreement").
2. The parties hereto desire to amend and supplement the Note Purchase
Agreement as hereinafter set forth.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:
1. Certain Defined Terms. Capitalized terms that are used herein without
definition and that are defined in the Note Purchase Agreement shall have the
same meanings herein as therein.
2. Amendments to Note Purchase Agreement. The Note Purchase Agreement
hereby is amended and supplemented as follows:
2.1 Amendment to definition of Class A-1 Commitment Fee Rate. The
definition of "Class A-1 Commitment Fee Rate" is amended by deleting such
definition in its entirety and substituting, in lieu thereof, the
definition set forth below:
"Class A-1 Commitment Fee Rate" shall be .375%.
2.2 Addition of Definition. The following definition is added, in
the appropriate alphabetical order, to Section 1.1 of the Note Purchase
Agreement:
"CP Conduit Consolidation Event" shall mean the occurrence of any of
the following events (i) the Securities and Exchange Commission, any
banking regulatory authority or any other official body having jurisdiction
over any Committed Purchaser or Agent or any of the Affiliates of such
Committed Purchaser or Agent, shall require the consolidation of the assets
and liabilities of any CP Conduit on the balance sheet of such
Committed Purchaser, Agent or Affiliate, or shall require that capital be
maintained with respect thereto under any capital requirements as if such
assets were owned by such Committed Purchaser, Agent or Affiliate, (ii) the
independent auditors for any such Committed Purchaser, Agent or Affiliate
shall have advised such Committed Purchaser, Agent or Affiliate in writing
that in their opinion such consolidation is required by GAAP or applicable
law, rule or regulations, (iii) any Affected Party shall determine that any
arrangement or transaction contemplated by this Agreement or any Related
Documents will impose any adverse regulatory impact on such Affected Party,
including, without limitation, any cost or expense described in Section 2.4
hereof; or (iv) any CP Conduit shall determine that it may be required to
register as an investment company under the Investment Company Act of 1940,
as amended.
2.3 Amendment to Section 2.3. The Note Purchase Agreement is
amended by adding the following as a new Section 2.3(k)
"(k) Notwithstanding anything contained herein or in the
Supplemental Fee Letter, from and after the occurrence of a Termination
Event, whether or not declared, the Class A-1 Principal Balance shall
accrue interest (after as well as before judgment) at the Prime Rate from
time to time in effect plus 2.0%."
2.4 Amendment to Section 2.6(a). The Note Purchase Agreement is
amended by deleting the following subsections (viii) and (ix) of Section
2.6(a) in their entirety:
"(viii) the offering or sale of the Notes or the offering or
effectuation of any Take-Out Securitization; or
(ix) the commingling of the proceeds of the Collateral at any time
with other funds."
and substituting in lieu thereof, the following subsections (viii) through
(x):
"(viii) the offering or sale of the Notes or the offering or
effectuation of any Take-Out Securitization;
(ix) the commingling of the proceeds of the Collateral at any time
with other funds; or
(x) the occurrence of a CP Conduit Consolidation Event."
2.5 Amendment to Section 3.2(b). Section 3.2(b) of the Note
Purchase Agreement is amended by adding the following at the end thereof:
"provided that if (x) a Borrowing Base Deficiency exists as a result
of a change in the Class A Credit Score Enhancement Rate, the Class B
Credit Score Enhancement Rate and/or the Class C Credit Score Enhancement
Rate, including, without limitation, as a result of an election of Option A
or Option B as set forth on Schedule 2 to the Indenture, and (y) no other
Termination Event or event that, after the giving of notice or the lapse of
2
time, would constitute a Termination Event, shall have occurred and be
continuing, then the foregoing conditions of this Section 3.2(b)(ii) shall
not prevent a purchase if, after giving effect to such purchase and the
application of the proceeds thereof, no Borrowing Base Deficiency would
exist."
3. Effect of Amendment. Except as expressly amended and modified by this
Amendment, all provisions of the Note Purchase Agreement shall remain in full
force and effect. After this Amendment becomes effective, all references in the
Note Purchase Agreement to "this Class A-l Note Purchase Agreement", "this Note
Purchase Agreement", "hereof", "herein" or words of similar effect referring to
the Note Purchase Agreement shall be deemed to be references to Note Purchase
Agreement, as amended by this Amendment. This Amendment shall not be deemed to
expressly or impliedly waive, amend or supplement any provision of the Note
Purchase Agreement other than as expressly set forth herein.
4. Effectiveness. This Amendment shall become effective as of the date
hereof upon receipt by the Administrative Agent of counterparts of this
Amendment (whether by facsimile or otherwise) executed by each of the other
parties hereto and by Noteholders representing the Required Class A-1 Owners and
Required Class A-l Purchasers and satisfaction of the Rating Agency Condition.
5. Counterparts. This Amendment may be executed in any number of
counterparts and by different parties on separate counterparts, and each
counterpart shall be deemed to be an original, and all such counterparts shall
together constitute but one and the same instrument.
6. Governing Law. This Amendment shall be governed by, and construed in
accordance with, the internal laws of the State of New York without regard to
any otherwise applicable principles of conflicts of law.
7. Section Headings. The various headings of this Amendment are inserted
for convenience only and shall not affect the meaning or interpretation of this
Amendment, the Note Purchase Agreement or any provision hereof or thereof.
8. Representations and Warranties. Each of the Issuer, Sellers and
Servicer, as applicable, represent and warrant that (i) all of their respective
representations and warranties set forth in the Note Purchase Agreement, are
true and accurate in all material respects as though made on and as of the date
hereof (except representations and warranties which relate to a specific date,
which were true and correct as of such date) and (ii) no Termination Event under
the Note Purchase Agreement has occurred and is continuing.
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IN WITNESS WHEREOF, the parties have executed this Amendment as of the date
first written above.
AMERICREDIT MASTER TRUST, as Issuer
By: DEUTSCHE BANK TRUST COMPANY
DELAWARE, not in its individual capacity
but solely as Owner Trustee on behalf of
the Trust
ATTORNEY-IN-FACT
By: /s/ Louis Bodi
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Name: LOUIS BODI
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Title: VICE PRESIDENT
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AMERICREDIT FUNDING CORP. VII, as Seller
By: /s/ J. Michael May
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Name: J. Michael May
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Title: Senior Vice President -
Associate Counsel
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AMERICREDIT FINANCIAL SERVICES, INC.,
as Seller and Servicer
By: /s/ Katharyn Harlow
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Name: KATHARYN HARLOW
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Title: VP - Finance
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BANK ONE, N.A., as Backup Servicer, Trust
Collateral Agent, and Trustee
By: /s/ John J. Rothrock
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Name: John J. Rothrock
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Title: Authorized Signer
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DEUTSCHE BANK TRUST COMPANY
AMERICAS, formerly known as Bankers Trust
Company, as Administrative Agent
By: /s/ Chris DiBiase
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Name: Chris DiBiase
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Title: VP
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By: /s/ David May
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Name: David May
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Title: Authorized Signatory
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Signature Page To
AMENDMENT NO. 1 TO AMENDED AND RESTATED
CLASS A-1 NOTE PURCHASE AGREEMENT
PURCHASER SIGNATURE PAGE:
JUPITER SECURITIZATION
CORPORATION,
as Class A-1 Owner
By: /s/ Beth Provanzana
------------------------------------
Name: Beth Provanzana
Title: Authorized Signer
BANK ONE, N.A.,
as Class A-1 Committed Purchaser and Agent
By: /s/ Beth Provanzana
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Name: Beth Provanzana
Title: Director, Capital Markets
Signature Page To
AMENDMENT NO. 1 TO AMENDED AND RESTATED
CLASS A-1 NOTE PURCHASE AGREEMENT
PURCHASER SIGNATURE PAGE:
SHEFFIELD RECEIVABLES
CORPORATION,
as Class A-1 Owner and Class A-1
Committed Purchaser
By: Barclay's Bank Plc, as Agent and
attorney-in-fact
By: /s/ Andrew Shuster
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Name: Andrew Shuster
Title: Director
Signature Page To
AMENDMENT NO. 1 TO AMENDED AND RESTATED
CLASS A-1 NOTE PURCHASE AGREEMENT
PURCHASER SIGNATURE PAGE:
LA FAYETTE PURCHASER GROUP,
CREDIT LYONNAIS NEW YORK
BRANCH
as Class A-1 Owner and Agent
By: /s/ Richard T. McBride
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Name: Richard T. McBride
Title: Director
LA FAYETTE ASSET SECURITIZATION LLC,
as Class A-1 Purchaser
By: /s/ Richard T. McBride
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Name: Richard T. McBride
Title: Director
PURCHASER SIGNATURE PAGE:
SEDONA CAPITAL FUNDING
CORPORATION,
as Class A-1 Owner
By: /s/ Evelyn Echevarria
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Name: Evelyn Echevarria
Title: Vice President
DEUTSCHE BANK AG, NEW YORK BRANCH,
as Class A-1 Committed Purchaser and Agent
By: /s/ Adam Cohen
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Name: ADAM COHEN
Title: DIRECTOR
By: /s/ Aimee Sevilla
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Name: Aimee Sevilla
Title: Vice President
Signature Page To
AMENDMENT NO. 1 TO AMENDED AND RESTATED
CLASS A-1 NOTE PURCHASE AGREEMENT
PURCHASER SIGNATURE PAGE:
PSF PURCHASER GROUP
KEYBANK, as Agent on Behalf of PSF and
the PSF Purchaser Group in accordance with
the Referral Bank Agreement Dated as of
December 8, 2000
By: /s/ Craig Platt
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Name: CRAIG PLATT
Title: SR VICE PRESIDENT
PUBLIC SQUARE FUNDING LLC,
as Class A-1 Owner and Class A-1 Committed Purchaser
By: /s/ Douglas K. Johnson
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Name: Douglas K. Johnson
Title: President
Signature Page To
AMENDMENT NO. 1 TO AMENDED AND RESTATED
CLASS A-1 NOTE PURCHASE AGREEMENT
PURCHASER SIGNATURE PAGE:
VARIABLE FUNDING CAPITAL CORPORATION,
as Class A-1 Owner
By: Wachovia Securities, Inc., As Attorney-in-fact
By: /s/ Douglas R. Wilson Sr.
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Name: DOUGLAS R. WILSON, SR.
Title: VICE PRESIDENT
WACHOVIA BANK, NATIONAL
ASSOCIATION,
as Class A-1 Committed Purchaser and
Agent
By: /s/ Prakash B. Wadhwani
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Name: PRAKASH B. WADHWANI
Title: VICE PRESIDENT
Signature Page To
AMENDMENT NO. 1 TO AMENDED AND RESTATED
CLASS A-1 NOTE PURCHASE AGREEMENT
PURCHASER SIGNATURE PAGE:
PARADIGM FUNDING LLC.,
as Class A-1 Committed Purchaser and
Class A-1 Owner
By: /s/ Evelyn Echevarria
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Name: Evelyn Echevarria
Title: Vice President
WestLB AG, New York Branch,
as Agent
By: /s/ Roger Klepper
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Name: ROGER KLEPPER
Title: DIRECTOR
GLOBAL SPECIALIZED FINANCE
By: /s/ Llyin Liang
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Name: Llyin Liang
Title: Associate Director
Global Specialized Finance
Signature Page To
AMENDMENT NO. 1 TO AMENDED AND RESTATED
CLASS A-1 NOTE PURCHASE AGREEMENT