SECOND AMENDMENT TO SECURITY AGREEMENT AND NOTE PURCHASE AGREEMENT
SECOND AMENDMENT (this "AMENDMENT"), dated as of September
27, 2000, to: (i) the Security Agreement, dated as of September 30, 1999 (as
amended or modified the "Security Agreement") by and among AMERICREDIT BOA
TRUST, a Delaware business trust, as debtor (in such capacity, the "DEBTOR"),
AMERICREDIT FINANCIAL SERVICES, INC., a Delaware corporation ("AMERICREDIT"),
individually and in its capacity as collection agent (in such capacity, the
"COLLECTION AGENT"), AMERICREDIT FUNDING CORP. II, a Delaware corporation
("AFC II"), individually, KITTY HAWK FUNDING CORPORATION, a Delaware
corporation (the "COMPANY") and BANK OF AMERICA,N.A., a national banking
association ("BANK OF AMERICA"), individually and as collateral agent for the
Secured Parties (in such capacity, the "COLLATERAL AGENT") and (ii) the Note
Purchase Agreement, dated as of September 30, 1999 (as amended or modified, the
"NOTE PURCHASE AGREEMENT) dated as of September 30, 1999, among the Company,
the Debtor and Bank of America, as agent for the Company and the Bank Investors
named therein (in such capacity, together with its successors, the "AGENT"), as
administrative agent for the Company (the "ADMINISTRATIVE AGENT") and as a Bank
Investor (in such capacity, a "BANK INVESTOR").
PRELIMINARY STATEMENTS
WHEREAS, by Amendment to the Security Agreement and Note
Purchase Agreement dated as of May 1, 2000, certain amendments were made to the
Security Agreement and Note Purchase Agreement; and
WHEREAS, the parties hereto are party to the Security
Agreement and the Note Purchase Agreement and the Debtor, AFC II and the
Collection Agent have requested that the Company, the Bank Investor, the
Collateral Agent and the Agent agree to make certain additional changes and
amendments to the Security Agreement and Note Purchase Agreement; and
WHEREAS, subject to the terms and conditions set forth
herein, the Company, the Bank Investor, the Collateral Agent and the Agent are
willing to make such additional changes and amendments to the Security
Agreement and Note Purchase Agreement.
NOW, THEREFORE, the parties hereby agree as follows:
1. DEFINED TERMS. Except as otherwise set forth
herein, capitalized terms used but not defined herein shall have the respective
meanings assigned to such terms in the Security Agreement.
2. AMENDMENT TO THE SECURITY AGREEMENT AND NOTE
PURCHASE AGREEMENT.
(a) Section 1.1 of the Security Agreement is hereby
amended by amending and restating the definition of "COMMITMENT TERMINATION
DATE" in its entirety as follows:
"COMMITMENT TERMINATION DATE" shall mean September
26, 2001, or such later date to which the Commitment
Termination Date may be extended by the Debtor, the
Agent and the Bank Investors not later than 30 days
prior to the then current Commitment Termination
Date."
(b) Section 1.1 of the Security Agreement is hereby
amended by amending and restating the definition of "Facility Limit" in its
entirety as follows:
"FACILITY LIMIT" shall mean $275,000,000: PROVIDED
that such amount may not at any time exceed the
aggregate Commitments at any time in effect; and
PROVIDED FURTHER that if Bank of America, in its
capacity as Bank Investor under the Note Purchase
Agreement, shall not have assigned at least
$25,000,000 of its Commitment on or prior to October
27, 2000, the Facility Limit shall be automatically
reduced to $250,000,000 on October 27, 2000."
(c) Section 1.1 of the Security Agreement is hereby
amended by amending and restating the definition of "Net Receivables Balance"
in its entirety as follows:
"NET RECEIVABLES BALANCE" means at any time the
Outstanding Balance of the Eligible Receivables (in
the aggregate) at such time reduced by the aggregate
Outstanding Balance of all Eligible Receivables (i)
which are Defaulted Receivables and (ii) with respect
to which 180 days or more have elapsed since the date
of transfer to the Collateral Agent for the benefit
of the Secured Parties of such Receivable."
(d) Section 1.1 of the Security Agreement is hereby
amended by amending and restating the definition of "RESERVE ACCOUNT FLOOR" in
its entirety as follows:
"RESERVE ACCOUNT FLOOR" shall mean an amount equal to
1% of the Outstanding Balance of Eligible
Receivables."
(e) Section 6.1(l) of the Security Agreement is
hereby amended and restated as follows:
"(l) [reserved]; or".
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(f) Section 6.1 (s) of the Security Agreement is
hereby amended and restated in its entirety as follows:
"(s) the weighted average AmeriCredit Score for all
Receivables shall at any time be less than 220; or".
(g) Section 6.1(u) of the Security Agreement is
hereby amended and restated in its entirety as follows:
"(u) the Tangible Net Worth of AmeriCredit Corp.
shall be less than $500,000,000 for any period of
twenty (20) consecutive days; or".
(h) Section 2.1(b) of the Note Purchase Agreement is
hereby amended by adding the following proviso at the end of the first sentence
thereof :
";PROVIDED, HOWEVER, that if the Termination Date has
occurred solely due to the occurrence of an event
described in Section 6.1(i) or (j) of the Security
Agreement, the Bank Investors shall remain obligated
to effect Subsequent Fundings in accordance with the
terms hereof."
3. REPRESENTATIONS AND WARRANTIES. To induce the
Company, the Bank Investor, the Collateral Agent and the Agent to enter into
this Amendment, each of the Debtor, AFC II, AFC and the Collection Agent hereby
represents and warrants (each as to itself) as of the Closing Date (as
hereinafter defined) that:
(a) It has the power, authority and legal right to
make and deliver this Amendment and to perform its obligations under the
Security Agreement and the Note Purchase Agreement, as amended by this
Amendment, as applicable, without any notice, consent, approval or
authorization not already obtained, and it has taken all necessary action to
authorize the same.
(b) The making and delivery of this Amendment and
the performance of the Security Agreement and the Note Purchase Agreement, as
amended by this Amendment, do not violate any provision of law or any
regulation, or its charter or by-laws, or result in the breach of or constitute
a default under or require any consent under any indenture or other agreement
or instrument to which it is a party or by which it or any of its properties
may be bound or affected. Each of the Security Agreement and the Note Purchase
Agreement, as amended by this Amendment, as applicable, constitutes its legal,
valid and binding obligation, enforceable against it in accordance with its
terms, except as the enforceability thereof may be limited by any applicable
bankruptcy, reorganization, insolvency, moratorium or other laws affecting
creditors' rights generally.
(c) The representations and warranties made by it
contained in each Transaction Document are true and correct in all material
respects on and as of the date of this
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Amendment and after giving effect hereto, except for those representations and
warranties that address matters only as of a particular prior date.
(d) No Termination Event or Potential Termination
Event has occurred and is continuing under the Security Agreement on and as of
the date of this Amendment and after giving effect to hereto.
4. CONDITIONS PRECEDENT. This Amendment shall become
effective, as of the date hereof, on the date (the "CLOSING DATE") on which the
following conditions precedent shall have been fulfilled, which Closing Date
shall be confirmed in writing by the Agent upon request:
(a) THIS AMENDMENT. The Agent shall have received
counterparts of this Amendment, duly executed and delivered by each of the
parties hereto.
(b) ADDITIONAL DOCUMENTS. The Agent shall have
received all additional approvals, legal opinions, documents, instruments and
items of information as the Agent may reasonably request and all of the
foregoing shall be in form and substance reasonably satisfactory to the Agent.
(c) LEGAL MATTERS. All instruments and legal and
corporate proceedings in connection with the transactions contemplated by this
Amendment shall be reasonably satisfactory in form and substance to the Agent
and its counsel.
5. REFERENCE TO AND EFFECT ON THE TRANSACTION
DOCUMENTS. (a) On and after the Closing Date: (i) each reference in the
Security Agreement to "this Agreement," "hereunder," "hereof" or words of like
import, and each reference in the Note, Note Purchase Agreement or any other
Transaction Document to "the Security Agreement," "thereunder," "thereof" or
words of like import referring to the Security Agreement, shall mean and be a
reference to the Security Agreement as amended hereby and (ii) each reference
in the Note Purchase Agreement to "this Agreement," "hereunder," "hereof" or
words of like import, and each reference in the Note, the Security Agreement or
any other Transaction Document to "the Note Purchase Agreement," "thereunder,"
"thereof" or words of like import referring to the Note Purchase Agreement,
shall mean and be a reference to the Note Purchase Agreement as amended hereby.
6. Except as specifically amended hereby, each
Transaction Document shall continue to be in full force and effect and is
hereby in all respects ratified and confirmed.
(a) The execution, delivery and effectiveness of
this Amendment shall not, except as expressly provided herein, operate as a
waiver of any right, power or remedy of the Company, any Bank Investor, the
Collateral Agent or the Agent under any Transaction Document, nor constitute a
waiver of any provision of any Transaction Document.
7. COUNTERPARTS. This Amendment may be signed in any
number of counterparts, each of which shall be an original and all of which
taken together shall constitute a single instrument with the same effect as
if the signatures thereto and hereto were upon the same instrument.
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8. GOVERNING LAW. This Amendment shall be governed by
and construed in accordance with the laws of the State of New York without
regard to the conflict of law principles thereof.
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IN WITNESS WHEREOF, the parties have caused this Amendment to
be duly executed and delivered by their proper and duly authorized officers as
of the day and year first above written.
KITTY HAWK FUNDING CORPORATION,
as Company
By:
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Name:
Title:
AMERICREDIT BOA TRUST, as Debtor
By: Bankers Trust (Delaware), not in its
individual capacity but solely as Trustee
By:
-------------------------------
Name:
Title:
AMERICREDIT FINANCIAL SERVICES, INC.,
individually and as Collection Agent
By:
-------------------------------
Name:
Title:
AMERICREDIT FUNDING CORP. II,
individually
By:
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Name:
Title:
BANK OF AMERICA, N.A.,
as Collateral Agent, Agent,
Administrative Agent and Bank
Investor
By:
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Name:
