EXHIBIT 10.22.6
EXECUTION COPY
AMENDMENT NO. 5
dated as of June 20, 2003
among
AMERICREDIT MTN RECEIVABLES TRUST II,
as Debtor,
AMERICREDIT FINANCIAL SERVICES, INC.,
Individually and as Servicer,
MBIA INSURANCE CORPORATION,
as Insurer
and
MERIDIAN FUNDING COMPANY, LLC,
as Purchaser
to SECURITY AGREEMENT
dated as of June 12, 2001
THIS AMENDMENT NO. 5, dated as of June 20, 2003 to the SECURITY
AGREEMENT, dated as of June 12, 2001 (this "Amendment") is among AMERICREDIT MTN
RECEIVABLES TRUST II (the "Debtor"), AMERICREDIT FINANCIAL SERVICES, INC.,
individually and in its capacity as Servicer ("AFS"), MBIA INSURANCE
CORPORATION, as Insurer ("MBIA"), and MERIDIAN FUNDING COMPANY, LLC, as
Purchaser ("Meridian").
WHEREAS, the Debtor, AFS, MBIA, Meridian, AmeriCredit MTN Corp. II and
JPMorgan Chase Bank (successor to Chase Manhattan Bank) entered into a Security
Agreement dated as of June 12, 2001 relating to the $750,000,000 AmeriCredit MTN
Receivables Trust II Note;
WHEREAS, Section 9.2(b) of the Security Agreement permits amendment of
the Security Agreement by the Debtor, AFS, MBIA and Meridian (the "Parties")
upon the terms and conditions specified therein;
WHEREAS, the Security Agreement has previously been amended by Amendment
No. 1, dated as of December 1, 2002, Amendment No. 2, dated as of February 1,
2003, Amendment No. 3, dated as of February 28, 2003, and Amendment No. 4, dated
as of April 1, 2003, among the Parties;
WHEREAS, the Insurer is the Controlling Party under the Transaction
Documents;
WHEREAS, the Parties wish to amend the Security Agreement as provided
herein.
NOW, THEREFORE, for good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the Parties agree that the Security
Agreement is hereby amended effective as of the date hereof as follows:
Section 1. Definitions Each term used herein but not defined herein
shall have the meaning assigned to such term in the Security Agreement.
Section 2. Amendment to Section 1.1 (Certain Defined Terms)
The definition of "Receivable" in Section 1.1 is amended by deleting
therefrom the phrase "to the Debtor."
Section 3. Amendment to Section 3.1 (Representations and Warranties of
the Debtor, AmeriCredit and AMTN)
Section 3.1 (u) is amended and restated in its entirety, as follows:
(u) Preference; Voidability. With respect to each
transfer of Receivables and Related Security (as defined in the
Master Receivables Purchase Agreement) from AmeriCredit or AMTN,
as the case may be, to the Debtor, the Debtor has given
reasonably equivalent value to AmeriCredit or AMTN, as
applicable, in consideration for such transfer of Receivables
and such Related Security, and each such transfer has not been
made for or on account of an antecedent debt
owed by AmeriCredit or AMTN to the Debtor and no such transfer
is or may be voidable under any Section of the Bankruptcy Code.
Section 4. Amendment of Section 4.1 (Conditions to Closing)
(a) Section 4.1(r) is amended and restated in its entirety, as
follows:
(r) Acknowledgement copies of proper financing
statements (Form UCC-1), naming AmeriCredit as the debtor/seller
in favor of the Debtor as secured party/purchaser and the
Collateral Agent, for the benefit of the Secured Parties, as
assignee of the secured party/purchaser or other similar
instruments or documents as may be necessary or in the
reasonable opinion of the Collateral Agent desirable under the
UCC of all appropriate jurisdictions or any comparable law to
perfect the Debtor's interest in the Receivables, Related
Security (as defined in the Master Receivables Purchase
Agreement) and Collections, free and clear of any Adverse Claim.
(b) Section 4.1(s) is amended and restated in its entirely, as
follows:
(s) Acknowledgement copies of proper financing
statements (Form UCC-1), naming AMTN as the debtor/seller in
favor of the Debtor as secured party/purchaser and the
Collateral Agent, for the benefit of the Secured Parties, as
assignee of the secured party/purchaser or other similar
instruments or documents as may be necessary or in the
reasonable opinion of the Collateral Agent desirable under the
UCC of all appropriate jurisdictions or any comparable law to
perfect the Debtor's interest in the Receivables, Related
Security (as defined in the Master Receivables Purchase
Agreement) and Collections, free and clear of any Adverse Claim.
(c) Section 4.1(u) is amended and restated in its entirety, as
follows:
(u) Copies of proper financing statements (Form
UCC-3), if any, necessary to terminate all security interests
and other rights of any person in the Receivables, Related
Security (as defined in the Master Receivables Purchase
Agreement) and Collections, previously granted by AmeriCredit.
(d) Section 4.1(v) is amended and restated in its entirety, as
follows:
(v) Copies of proper financing statements (Form
UCC-3), if any, necessary to terminate all security interests
and other rights of any person in the Receivables, Related
Security (as defined in the Master Receivables Purchase
Agreement) and Collections, previously granted by AMTN.
Section 5. Amendment to Section 6.1 (Termination and Amortization
Events)
Section 6.1(ii) is amended and restated, in its entirety, as follows:
(ii) during any calendar quarter commencing with the third
calendar quarter of 2001, the daily average percentage of MTN Eligible
Receivables as a portion of MTN Eligible Collateral is less than 50%,
or, respecting the calendar quarters commencing April 1, 2003 and July
1, 2003 only, the daily average percentage of MTN Eligible Receivables
as a portion of MTN Eligible Collateral is less than 40%;
Section 6. Separate Counterpart. This Amendment may be executed by the
parties hereto in separate counterparts, each of which when so executed and
delivered shall be an original, but all such counterparts shall together
constitute but one and the same instrument.
Section 7. Governing Law. THIS AMENDMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD
TO ITS CONFLICTS OF LAW PROVISIONS.
Section 8. Binding Effect; Ratification.
(a) This Amendment shall become effective as of the date
first set forth above, when counterparts hereof shall have been executed
and delivered by the parties hereto, and thereafter shall be binding on
the parties hereto and their respective successors and assigns.
(b) On and after the execution and delivery hereof, (i) this
Amendment shall be a part of the Security Agreement, and (ii) each
reference in any Transaction Document (as defined in the Insurance
Agreement) to the Security Agreement shall mean and be a reference to
the Security Agreement as amended hereby.
(c) Except as expressly amended hereby, all provisions of
the Security Agreement shall remain in full force and effect and are
hereby ratified and confirmed by the parties hereto.
[Signature Pages Follow]
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as
of the date set forth on the first page hereof.
AMERICREDIT MTN RECEIVABLES TRUST II
By: DEUTSCHE BANK TRUST COMPANY
DELAWARE, not in its individual
capacity but solely as Owner Trustee
on behalf of the Issuer
By:
---------------------------------
Name:
Title:
AMERICREDIT FINANCIAL SERVICES, INC.,
Individually and as Servicer
By:
---------------------------------
Name:
Title:
MBIA INSURANCE CORPORATION,
as Insurer
By
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Name:
Title:
MERIDIAN FUNDING COMPANY, LLC,
as Purchaser
By
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Name:
Title:
Signature Page for Amendment No. 5
to the Security Agreement (MTN II)