Exhibit 10.78
AMENDMENT NO. 2 TO
SECOND AMENDED AND RESTATED
SECURITY AND FUNDING AGREEMENT
AMENDMENT NO. 2 (this "Amendment"), dated as of September 27, 2002, to
the SECOND AMENDED AND RESTATED SECURITY AND FUNDING AGREEMENT, dated as of
April 27, 2001, by and among AMERICREDIT MANHATTAN TRUST, a Delaware business
trust (the "Borrower"), JPMORGAN CHASE BANK, a New York banking corporation, as
administrative agent on behalf of the Secured Parties and as securities
intermediary hereunder (together with its successors and assigns in such
capacities, the "Administrative Agent" and the "Securities Intermediary",
respectively) and THE SEVERAL SECURED PARTIES AND FUNDING AGENTS PARTY THERETO
FROM TIME TO TIME.
W I T N E S S E T H :
WHEREAS, the Borrower, the Administrative Agent, the Secured Parties
and the Funding Agents have entered into a Second Amended and Restated Security
and Funding Agreement, dated as of April 27, 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 the first day on which (i) the Administrative Agent shall have
received executed counterparts to this Amendment, (ii) the accrued fees and
expenses of counsel to the Administrative Agent and the Secured Parties shall
have been paid in full and (iii) the Secured Parties shall have received an
opinion of counsel to the Borrower regarding the enforceability of the Agreement
and the Sale and Servicing Agreement under New York law.
SECTION 2. Amendments to Agreement. The Agreement is hereby amended,
effective on the Effective Date, as follows:
(a) Section 7.1 of the Agreement shall be amended by inserting the
following subsection at the end thereof:
(i) Reaffirmation of VFN Ratings. If, at any time, any other
asset-backed securitization sponsored by AFS is the subject of (i) a
downgrade or withdrawal of any rating assigned by any nationally recognized
statistical rating agency to such securitization or (ii) a requirement by
any such rating agency that such securitization requires additional credit
enhancement in order for the then-current rating assigned by such rating
agency to be maintained, then, in such event, the Borrower shall be
required to notify the Administrative Agent of any such event within one
(1) Business Day following the occurance of such event, and the Borrower
shall obtain a reconfirmation of the ratings assigned by any Rating Agency
to the VFN within twenty (20) days following notice from the Administrative
Agent.
(b) Section 7.1(b) shall be amended by inserting the following at the end
of the first sentence thereof:
,(xiii) no Event of Default (as therein defined) under any public asset
backed transaction of AmeriCredit Corp. or any of its direct or indirect
subsidiaries shall have occurred and be continuing, (xiv) AmeriCredit Corp.
shall have received proceeds of an offering of equity in an amount no less
than $150,000,000 and (xv) the Borrower (and/or the Servicer on its behalf)
shall have provided to the Administrative Agent such financial information
and projections concerning AmeriCredit Corp., its Affiliates, the
Receivables and other financial matters as the Administrative Agent may
request.
(c) Section 7.1(c) of the Agreement shall be deleted in its entirety and
shall be replaced by the following:
(c) Advance Percentage. With respect to any Funding Date, the
advance percentage (the "Advance Percentage") to determine the Advance
Amount shall be (i) with respect to Asset Backed Securities, 100%, subject
to the reserve requirement to be established at or prior to the initial
funding under the ABS Funding Sublimit, as accept-
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able to each Lending Group and the Primary Seller, and (ii) with respect to
Receivables, shall be 100% minus the Credit Enhancement Rate at such time.
(d) Section 7.1(f) of the Agreement shall be amended by inserting the
following provision at the end thereof:
(iv) Notwithstanding anything to the contrary in this Agreement,
the Borrower shall have the ability, upon five (5) Business Days' notice,
to reduce the Aggregate Net Investment and the Aggregate Commitment to zero
by remitting to the Administrative Agent, for the benefit of the Secured
Parties, an amount equal to the sum of the VFN Balance, all accrued and
unpaid Carrying Costs to the date of reduction, and any other amounts due
and owing to the Administrative Agent and the Secured Parties under this
Agreement and the other Basic Agreements.
(e) Section 7.1 of the Agreement shall be amended by inserting the
following provision at the end thereof:
(i) Other Information. In the event the long-term senior unsecured
debt rating of AmeriCredit Corp. shall fall below B+ by S&P or Ba2 by
Xxxxx'x (or either such rating shall have been withdrawn), then, no later
than the thirtieth (30/th/) day following the occurrence of such event, the
Borrower (or the Servicer on its behalf) shall supply the data specified in
Section 5.13 of the Sale and Servicing Agreement, together with any other
information requested by the Administrative Agent.
(f) On and after the Effective Date, all references in the Agreement and
the other Basic Agreements to "HLS", "Gotham", "Eiffel", "Holland Limited
Securitization, Inc.", "Gotham Funding Corporation", "Eiffel Funding, LLC", and
to defined terms related to "HLS", "Gotham" and "Eiffel", shall be of no further
force and effect, and all provisions in the Agreement 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
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deemed to be an original and all of which counterparts, taken together, shall
constitute but one and the same Amendment.
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 and to Amendment No. 4, dated as of September 27, 2002,
to the Sale and Servicing Agreement, dated as of September 14, 2000 (as amended,
the "Sale and Servicing Agreement"), between the Borrower, AmeriCredit Financial
Services, Inc., AmeriCredit Funding Corp. V and the Administrative Agent. 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. 1
to the Second Amended and Restated Security and Funding Agreement to be executed
as of the date and year first above written.
AMERICREDIT MANHATTAN TRUST, as
Borrower
By: Bankers Trust (Delaware), solely
in its capacity as Trustee
By: /s/
------------------------------------
Name:
Title:
JPMORGAN CHASE BANK,
as Administrative Agent on behalf of
the Secured Parties
By: /s/
------------------------------------
Name:
Title:
JPMORGAN CHASE BANK,
as PARCO Funding Agent
By: /s/
------------------------------------
Name:
Title:
PARK AVENUE RECEIVABLES
CORPORATION,
as a Secured Party
By: /s/
------------------------------------
Name:
Title:
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