Exhibit 10.77
AMENDMENT NO. 4 TO
SALE AND SERVICING AGREEMENT
AMENDMENT NO. 4 (this "Amendment"), dated as of September 27, 2002,
to the SALE AND SERVICING AGREEMENT, dated as of September 14, 2000, by and
among AMERICREDIT MANHATTAN TRUST, a Delaware business trust (the "Borrower"),
AMERICREDIT FINANCIAL SERVICES, INC., a Delaware corporation ("AFS"), as a
seller and as servicer (in such capacities, the "Primary Seller" and the
"Servicer", respectively), AMERICREDIT FUNDING CORP. V, a Delaware corporation,
as a seller (the "Secondary Seller," and, together with the Primary Seller, the
"Sellers," and each, a "Seller"), and JPMORGAN CHASE BANK, a New York banking
corporation ("Chase"), as backup servicer and as administrative agent (in such
capacities, the "Backup Servicer" and the "Administrative Agent," respectively).
W I T N E S S E T H :
WHEREAS, the Borrower, the Sellers, the Servicer, the Backup
Servicer and the Administrative Agent have entered into a Sale and Servicing
Agreement, dated as of September 14, 2000, as amended by Amendment No. 1 thereto
dated as of March 30, 2001, Amendment No. 2 thereto dated as of April 27, 2001
and Amendment No. 3 thereto dated as of September 28, 2001 (the "Agreement");
WHEREAS, the parties hereto wish to amend the Agreement as
hereinafter provided.
NOW, THEREFORE, in consideration of the foregoing and of the mutual
covenants herein contained, the parties hereto hereby agree as follows:
SECTION 1. Defined Terms. Unless otherwise defined herein, the
terms used herein shall have the meanings assigned to such terms in, or
incorporated by reference into, the Agreement. For all purposes of this
Amendment, "Effective Date" shall mean September 27, 2002.
SECTION 2. Amendments to Agreement. The Agreement is hereby
amended, effective on the Effective Date, as follows:
(a) Annex A to the Agreement shall be amended in clause (iv) of the
definition of "Commitment Expiry Date" by deleting the reference to "September
27, 2002" and by inserting in its place "September 26, 2003".
(b) Annex A to the Agreement shall be amended by deleting the
definition of "Excess Spread Deficiency" in its entirety.
(c) Annex A to the Agreement shall be amended by deleting the
definitions of "Determination Date", "Distribution Date", "Excess Spread",
"Financed Vehicle", "Managed Assets", "Net Losses" and "PARCO Facility Limit"
and by replacing them with the following definitions:
"Determination Date" means, with respect to any
Collection Period, the second (2nd) Business Day preceding the
related Distribution Date.
"Distribution Date" means, with respect to each
Collection Period and commencing with the September 2002 Collection
Period, the fifteenth (15/th/) day of the calendar month immediately
following such Collection Period (or, if such day is not a Business
Day, the immediately following Business Day).
"Excess Spread" means, with respect to the Pool Balance
as it relates to Receivables, (i) the product of the Weighted Average
Coupon thereof and the Performing Loan Factor minus (ii) the sum of (x)
Weighted Average Hedge Strike Price, (y) 2.00% (representing the fees
of the Servicer and other transaction fees and expenses) and (z) the
Funded Spread. Excess Spread shall be calculated as of the close of
business on the Accounting Date for purposes of the Servicer's
Determination Date Certificate and as of the close of the previous
Business Day for any Servicer's Receivables Sale Date Certificate. For
purposes of the calculation of Excess Spread to be reflected in any
Servicer's Receivables Sale Date Certificate, "Receivables constituting
the Pool Balance" shall be deemed to include the Receivables to be sold
on the related Receivables Sale Date.
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"Financed Vehicle" means, in respect of receivables in
the Managed Assets, an automobile or light-duty truck, van or minivan,
together with all accessions thereto, securing an Obligor's
indebtedness under the respective receivable.
"Managed Assets" means, as of any date of determination,
all receivables (whether or not thereafter sold or disposed of) that
are serviced by the Servicer and any of its Affiliates as of such date,
calculated in a manner consistent with the components of "managed
receivables" in the most recent reports on Form 10-K or Form 10-Q filed
by AmeriCredit Corp. with the Securities and Exchange Commission.
"Net Losses" means, with respect to a Collection Period,
the aggregate Principal Balance of Managed Assets that became charged
off (without regard to the application of any dealer discount) during
such period, less the aggregate amount of recoveries on Managed Assets
during such Period.
"PARCO Facility Limit" shall mean $250,000,000.
(d) Annex A to the Agreement shall be amended in clause (iv) of the
definition of "Pool Limitations" by inserting the words "or equal to" after the
words "less than" therein.
(e) Annex A to the Agreement shall be amended in the definition of
"Notice Address" by deleting clause (iv) in its entirety and by replacing it
with the following:
(iv) JPMorgan Chase Bank, as Administrative Agent
450 West 33/rd/ Street, 15/th/ Floor
New York, New York 10001
Attention: Conduit Administration
Telephone No.: (212) 946-3910
Telecopier No.: (212) 946-8098
E-Mail: cpadmin@chase.com
(f) Annex A to the Agreement shall be amended by inserting the
following definitions in alphabetical order:
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"Charge-Offs" means, with respect to any Collection Period, with
respect to the receivables in any Receivables Pool or the Managed
Assets, the aggregate principal balances of all such receivables (i) as
to which 5% or more of a scheduled receivable payment shall have become
120 or more days delinquent (excluding receivables for which the
Financed Vehicle has been repossessed and receivables for which the
Obligor is bankrupt), or (ii) that the Servicer has charged-off (or in
respect of which the Servicer has otherwise determined in good faith
that payments relating thereto are not likely to be resumed).
"Credit Enhancement Rate" means, on any date of determination,
the percentage obtained by comparing Excess Spread with respect to the
Pool Balance and the weighted average Credit Score for the Pool Balance
by reference to the following table (as increased from time to time as
provided in the following proviso):
Credit Score
- --------------------------------------------------------------------------------------------------------------
Excess Spread 220-224 225-229 230-234 235-239 240+
- --------------------------------------------------------------------------------------------------------------
Credit ** 9.0% 16.00% 13.00% 10.00% 7.00% 5.50%
Enhancement ** 8.5% and * or = 9.0% 18.50% 13.50% 10.50% 7.50% 5.50%
Rate ** 8.0% and * or = 8.5% 18.50% 14.00% 11.40% 8.50% 5.50%
** 7.5% and * or = 8.0% 18.50% 15.00% 12.20% 9.00% 6.50%
** 7.0% and * or = 7.5% 19.00% 16.00% 13.00% 9.50% 7.00%
** 6.5% and * or = 7.0% 19.50% 16.75% 14.00% 10.00% 7.50%
** 6.0% and * or = 6.5% 20.00% 17.50% 15.00% 10.50% 8.00%
** 5.5% and * or = 6.0% 20.50% 18.25% 16.00% 11.50% 9.00%
- --------------------------------------------------------------------------------------------------------------
* less than
** greater than
provided that (i) the percentage obtained above shall be increased by
3% if the average of the Receivables Pool Servicer Delinquency Ratios
for the preceding three Collection Periods at such time is greater than
the percentage obtained by reference to the table below, (ii) the
percentage obtained above shall be increased by 6% if the cumulative
net loss ratio for any AFS public term securitization entered into in
the preceding 24-month period exceeds the limits set forth on Exhibit B
to the Security and Funding Agreement (and the Required Lending Groups
have not waived such event); and (iii) the percentage obtained
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above shall be increased by 2% if a Trigger Event occurs (provided that the
Advance Percentage shall remain at such reduced percentage until such time as
the related Trigger Event has been cured for a period of three (3) consecutive
months).
Seasoning Receivables Pool
(In Months) Servicer Delinquency Ratio
1-12 4.0%
13-24 5.0%
"Interest Expense" means, with respect to AmeriCredit Corp. on
a consolidated basis and for any period, AmeriCredit Corp.'s interest expense
during such period for money borrowed (exclusive of any such interest expense on
any "off-balance sheet" securitizations or "off-balance sheet" warehouse
facilities), calculated in accordance with GAAP.
"Net Loss Ratio" means, as of any Determination Date, the
ratio obtained by reference to the following formula:
(A/B) x C
where:
A = the aggregate amount of Net Losses for the Managed Assets that have
occurred during the six (6) Collection Periods immediately preceding such
Determination Date divided by the average aggregate Principal Balance of the
Managed Assets during such six-month period;
B = the actual number of calendar days in such six-month period; and
C = the actual number of days in AFS's fiscal year in which the most recently
ended Collection Period occurred.
"Performing Loan Factor" means, as of the last day of any
Collection Period, 100% minus the percentage equivalent of a fraction, the
numerator of which is the aggregate principal balance on
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such date of each receivable in the Managed Assets with respect
to which 5% or more of any scheduled payment is more than 60
days past due (including a receivable for which the related
Financed Vehicle has been repossessed and the proceeds thereof
have not be realized by the Servicer), and the denominator of
which is the aggregate principal balance of all receivables in
the Managed Assets on the last day of such Collection Period.
"Receivables Pool" means, with respect to any date
of determination, each receivables pool supporting an
asset-backed securitization sponsored by AFS that became
effective on or after the date that is two years prior to such
date of determination (excluding any receivables held as part of
any warehouse arrangement).
"Receivables Pool Servicer Delinquency Ratio"
means, as of the last day of a Collection Period, for any
Receivables Pool, the ratio, expressed as a percentage, computed
by dividing (i) the aggregate principal balance on such date of
each receivable in such Receivables Pool with respect to which
more than 5% of a scheduled payment is more than 60 days past
due (excluding a receivable for which the financed vehicle has
been repossessed and the proceeds thereof have not been realized
by the Servicer) by (ii) the aggregate principal balance of all
receivables in such Receivables Pool on the first day of such
Collection Period.
"Trigger Event" means, with respect to any Funding
Date, either (i) the occurrence, with respect to asset-backed
securities issued within the three year period ending on such
Funding Date, which are backed by automobile installment sales
contracts (("receivables") (other than asset-backed securities
which are backed, except for an insubstantial portion, by
automobile installment sales contracts with respect to which the
Obligors thereunder, at the time of origination of such sales
contracts, were residents of Canada; such securities, "Canadian
Securities") and with respect to which AmeriCredit Corp. or any
Affiliate of AmeriCredit Corp. is the servicer, of an "event of
default" or similar event under any applicable enhancement or
insurance agreement or an "amortization event", "pay-out event"
or similar event under any applicable sale and servicing
agreement or indenture, which event has the potential
consequence, inter alia, under the related agreements of
requiring the acceleration or early amortization of the
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related securities or permitting the realization upon the
receivables and/or other collateral; or (ii) the occurrence of a
"trigger event", "spread capture event" or any other analogous
event however denominated, with respect to asset-backed
securities issued within the three year period ending on such
Funding Date (other than Canadian Securities) which relate to
receivables (as defined in clause (i)) and with respect to which
AmeriCredit Corp. or any Affiliate of AmeriCredit Corp. is the
servicer, which event is based on the performance of such
receivables and has the potential consequence under the related
agreements of causing the amount required to be retained in any
related spread or reserve account or the level of any other
enhancement to be increased.
(g) Annex A to the Agreement shall be amended in clauses 1 and 2
of the definition of "Portfolio Performance Trigger" by deleting such
clauses in their entirety and by replacing them with the following:
1. Either (i) for the period from and including each April to
and including each September, the average aggregate Principal
Balance of Managed Assets with respect to which 5% or more of
any scheduled payment is more than 60 days past due (including a
Managed Asset secured by a repossessed motor vehicle) for the
preceding three calendar months exceeds 5.5% of the aggregate
Principal Balance of Managed Assets for the preceding three
calendar months or (ii) for the period from and including each
October to and including each March, the average aggregate
Principal Balance of Managed Assets with respect to which 5% or
more of any scheduled payment is more than 60 days past due
(including a Managed Asset secured by a repossessed motor
vehicle) for the preceding three calendar months exceeds 6.5% of
the aggregate Principal Balance of Managed Assets for the
preceding three calendar months.
2. the Net Loss Ratio exceeds 8%.
(h) Annex A to the Agreement shall be amended in clause (i) of
the definition of "Termination Event" by deleting such clause in its
entirety and by replacing it with the following:
(i) The Tangible Net Worth of AmeriCredit Corp. shall be
less than the sum of (a) $1,000,000,000 and (b) 75% of the
cumulative
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positive net income (without deduction for negative net income) of
AmeriCredit Corp. for each fiscal quarter having been completed since
March 31, 2002, as reported in each annual report on Form 10-K and
periodic report on Form 10-Q filed by AmeriCredit Corp. with the
Securities and Exchange Commission.
(i) Annex A to the Agreement shall be amended by deleting the following
definitions in their entirety: "Eiffel", "Eiffel Alternate Base Rate", "Eiffel
Eurodollar Rate", "Eiffel Facility Limit", "Eiffel Funding Agent", "Eiffel
LIBOR", "Eiffel Liquidity Asset Purchase Agreement", "Eiffel Liquidity Banks",
"Eiffel Prime Rate" and "Eiffel Wind-Down Event". All other references in Annex
A to "Eiffel" and "Eiffel Funding, LLC", and to defined terms related to
"Eiffel", shall be of no further force and effect, and all defined terms
containing such references shall be construed for all purposes as if such
references did not exist.
(j) Annex A to the Agreement shall be amended by deleting the
following definitions in their entirety: "Gotham", "Gotham Alternate Base Rate",
"Gotham Eurodollar Rate", "Gotham Facility Limit", "Gotham APA Bank", "Gotham
Funding Agent", "Gotham LIBOR", "Gotham Asset Purchase Agreement", "Gotham
Liquidity Agreement", "Gotham Liquidity Facility, "Gotham Liquidity Banks",
"Gotham Prime Rate" and "Gotham Wind-Down Event". All other references in Annex
A to "Gotham" and "Gotham Funding Corporation", and to defined terms related to
"Gotham", shall be of no further force and effect, and all defined terms
containing such references shall be construed for all purposes as if such
references did not exist.
(k) Annex A to the Agreement shall be amended by deleting the
following definitions in their entirety: "HLS", "HLS Alternate Base Rate", "HLS
Eurodollar Rate", "HLS Facility Limit", "HLS Liquidity Loan Agreement", "HLS
Funding Agent", "HLS LIBOR", "HLS Liquidity Banks", "HLS Prime Rate" and "HLS
Wind-Down Event". All other references in Annex A to "HLS" and "Holland Limited
Securitization, Inc.", and to defined terms related to "HLS", shall be of no
further force and effect, and all defined terms containing such references shall
be construed for all purposes as if such references did not exist.
SECTION 3. Execution in Counterparts. This Amendment may be
executed in any number of counterparts and by different parties hereto on
separate counterparts, each of which counterparts, when so executed and
delivered, shall be deemed to be an original and all of which counterparts,
taken together, shall constitute but one and the same Amendment.
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SECTION 4. Consents; Binding Effect. The execution and delivery
by the parties hereto of this Amendment shall constitute the written consent of
each of them to this Amendment. This Amendment shall be binding upon, and inure
to the benefit of, the parties hereto and their respective successors and
assigns.
SECTION 5. Governing Law. This Amendment shall be governed by,
and construed in accordance with, the laws of the State of New York.
SECTION 6. Severability of Provisions. Any provision of this
Amendment which is prohibited or unenforceable in any jurisdiction shall, as to
such jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof or
affecting the validity or enforceability of such provision in any other
jurisdiction.
SECTION 7. Captions. The captions in this Amendment are for
convenience of reference only and shall not define or limit any of the terms or
provisions hereof.
SECTION 8. Agreement to Remain in Full Force and Effect. Except
as amended hereby, the Agreement shall remain in full force and effect and is
hereby ratified, adopted and confirmed in all respects. This Amendment shall be
deemed to be an amendment to the Agreement. All references in the Agreement to
"this Agreement", "hereunder", "hereof", "herein", or words of like import, and
all references to the Agreement in any other agreement or document shall
hereafter be deemed to refer to the Agreement as amended hereby.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment No. 4
to the Sale and Servicing Agreement to be executed as of the date and year first
above written.
AMERICREDIT MANHATTAN TRUST,
as Borrower
By: Bankers Trust (Delaware), solely as
Trustee of the AmeriCredit Manhattan
Trust
By: /s/
-------------------------------------
Name:
Title:
AMERICREDIT FUNDING CORP. V, as
Seller
By: /s/
-------------------------------------
Name:
Title:
AMERICREDIT FINANCIAL SERVICES,
INC., as Servicer and Primary Seller
By: /s/
-------------------------------------
Name:
Title:
JPMORGAN CHASE BANK, not
in its individual capacity, but solely
as Backup Servicer
By: /s/
-------------------------------------
Name:
Title:
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JPMORGAN CHASE BANK, as
Administrative Agent on behalf of
the Secured Parties
By: /s/
-------------------------------------
Name:
Title:
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