EXHIBIT 10.21
EXECUTION COPY
AMENDMENT NO. 1 TO AMENDED AND RESTATED
CLASS S NOTE PURCHASE AGREEMENT
This AMENDMENT NO. 1 TO AMENDED AND RESTATED CLASS S NOTE PURCHASE
AGREEMENT, dated as of March _, 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 S 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 S 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.
2.1 The Note Purchase Agreement hereby is amended and
supplemented 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 S Principal Balance shall
accrue interest (after as well as before judgment) at the Prime Rate
from time to time in effect plus 2.0%."
2.2 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."
2.3 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 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 S 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 S Owners and
Required Class S 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.
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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 S NOTE PURCHASE AGREEMENT
PURCHASER SIGNATURE PAGE:
SEDONA CAPITAL FUNDING
CORPORATION
as Class S Owner
By: /s/ Evelyn Echevarria
------------------------
Name: Evelyn Echevarria
Title: Vice President
DEUTSCHE BANK AG, NEW YORK BRANCH,
as Class S 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 S NOTE PURCHASE AGREEMENT