EXHIBIT 10.12.1
EXTENSION, CONSENT AND AMENDMENT AGREEMENT
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This EXTENSION, CONSENT AND AMENDMENT AGREEMENT (this "Amendment"), dated
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as of September 29, 1998, is made in respect of the FUNDING AGREEMENT (the
"Funding Agreement"), dated as of October 8, 1997, between CP FUNDING CORP., a
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Nevada corporation, as borrower (the "Borrower"), PARK AVENUE RECEIVABLES
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CORPORATION, a Delaware corporation ("PARCO"), as lender (in such capacity, the
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"Lender"), THE CHASE MANHATTAN BANK, a New York banking corporation ("Chase"),
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as funding agent for PARCO and the several APA Banks (in such capacity, the
"Funding Agent") and THE SEVERAL FINANCIAL INSTITUTIONS PARTY THERETO FROM TIME
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TO TIME (the "APA Banks").
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W I T N E S S E T H :
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WHEREAS, the Borrower, the Lender, the Funding Agent and the APA Banks
(collectively, the "Parties") have entered into the Funding Agreement for the
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financing of certain purchases, from time to time, by the Borrower from
AmeriCredit Financial Services, Inc. ("AFS") of motor vehicle retail installment
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sales contracts pursuant to the Sale and Servicing Agreement (as defined below);
and
WHEREAS, the Borrower has requested the APA Banks party to the Funding
Agreement on the date hereof to extend the Commitment Expiry Date and to consent
to certain amendments of the Funding Agreement and certain other Basic
Agreements; and
WHEREAS, certain of such APA Banks are willing to enter into such extended
and increased commitments and to consent to such other amendments; and
WHEREAS certain other financial institutions will cease to become APA Banks
or will become APA Banks, as the case may be, on the Effective Date (as defined
below);
NOW, THEREFORE, in consideration of the foregoing and of the mutual
covenants herein contained, the parties hereto hereby agree as follows:
1. SECTION Defined Terms.
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2.
3. "Effective Date" means the date of this Amendment as set forth above,
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which shall not be a date prior to the date on which the Funding Agent shall
have determined that
each of the conditions to the effectiveness of this Amendment set forth in
Section 5 hereof shall have been satisfied.
4.
5. "Sale and Servicing Agreement" means the Sale and Servicing Agreement,
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dated as of October 8, 1997 (together with the Schedules and Exhibits thereto,
and together with Annex A, the schedule of defined terms, thereto), between the
Borrower, AFS as Seller and as Servicer, and Chase, as Funding Agent and as
Backup Servicer, as the same may be amended, supplemented or otherwise modified
and in effect from time to time.
6.
7. Unless otherwise defined herein, capitalized terms used herein shall
have the meanings assigned to such terms in Annex A to the Sale and Servicing
Agreement and as amended.
8.
9. SECTION Amendments to Funding Agreement. The Funding Agreement is
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hereby amended, as follows:
10.
11. (A) Notwithstanding anything to the contrary in Section 2.1 (a), the
Borrower shall be permitted to request up to two Fundings per calendar week, and
up to 9 Fundings per calendar month.
12.
13. (B) Section 2.1(b) is hereby amended as follows:
14.
(i) by inserting the following parenthetical at the end of clause
(i) thereof, prior to the semicolon:
(it being understood that, for purposes of determining
whether the Interest Component on Commercial Paper may be
paid from the proceeds of Commercial Paper issued on the
maturity date thereof, the amount of such capitalized
Interest Component shall constitute a "Funding"); and
(ii) by deleting clause (iv) thereof, and substituting the following
therefor:
(iv) the Borrower shall have deposited in the Collection
Account, or shall have given irrevocable instructions to
the Funding Agent to withhold from the proceeds of such
Funding and to deposit in the Collection Account, as the
case may be, in each case for allocation to the Collection
Account Reserve, an amount equal to (x) on the Effective
Date of that certain Extension, Consent and Amendment
Agreement, dated as of September 29, 1998, the Collection
Account Reserve Minimum (which may include amounts
transferred by the Funding Agent to the Collection Account
from the Reserve
Account, for allocation to the Collection Account Reserve,
on such Effective Date) and (y) in the case of any
Subsequent Funding, the Collection Account Reserve
Shortfall Amount, if any;
(C) Section 2.1(c) is hereby amended as follows:
(i) by restating the parenthetical in clause (1) thereof to read
as follows:
(such term meaning, for purposes of this Section 2.1(c),
(i) a "Trigger Event" as defined in any public asset-
backed transaction beginning with and including the
AmeriCredit Automobile Receivables Trust 1996-D
transaction; or (ii), if applicable, any comparable
"spread capture event" in any automobile receivables
transaction conducted by any Securitization Trust, whether
or not defined in such transaction as a "Trigger Event"
and whether or not such transaction is a public
transaction)
(ii) by inserting in clause (2) thereof, after the words
"related transaction documentation": "(and such Trigger
Event shall be deemed unwaived if there is no Person or
Persons entitled to so waive)"; and
(iii) by deleting from clause (3) thereof the parenthetical:
"(rounded to the nearest 1%)".
(D) Section 2.1(f)(ii) is hereby amended by deleting the reference to
"five (5) Business Days" that appears in clauses "1" and "2" thereof, and
substituting therefor a reference to "three (3) Business Days".
(E) Section 2.1(g) is hereby amended by deleting therefrom, as a
condition to each Funding Date, clause (xii) thereof.
(F) Section 2.4(f) is hereby amended by inserting in the third line
thereof, after the word "Date" and before the proviso, the following: "and, if
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applicable, upon each Interest Payment Date following the Commitment Expiry
Date".
(G) Section 2.5 is hereby amended by deleting the reference to "sixty-
six (66) months" in the last line thereof and substituting therefor "seventy-
eight (78) months".
(H) Section 4.4 is hereby amended by inserting in the third line
thereof, between the word "PARCO" and the word "and", the following: "each APA
Bank".
(I) Section 8.1(b) is hereby amended by restating clause (ii) in the
second proviso thereof, as follows:
(ii) reduce the amount of any payments due and owing to PARCO or any
APA Bank hereunder, under the other Basic Agreements or under
any Fee Letter, without the prior written consent of PARCO, and
each APA Bank affected thereby, as applicable,
(J) Section 8.5(b) is hereby amended by correcting, in the proviso
clause of the next to last sentence thereof, the reference to the "first proviso
of Section 8.1(b)" to refer instead to the "second proviso of Section 8.1(b)".
1. SECTION Amended VFN. In connection with this Amendment, the
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Borrower shall deliver an amended VFN, substantially in the form of Exhibit A
hereto, which shall reflect (i) the increased Facility Limit, (ii) the extension
of the maturity of the VFN from the Distribution Date occurring in the calendar
month that is sixty-six (66) months following the Commitment Expiry Date, to the
Distribution Date occurring in the calendar month that is seventy-eight (78)
months following the Commitment Expiry Date (unless otherwise accelerated
pursuant to the terms of the Basic Agreements), and (iii) that the Interest
Component of Commercial Paper may be paid from the proceeds of Commercial Paper
issued on the maturity date thereof. The amended VFN is delivered in
substitution for the VFN, dated as of October 8, 1997, originally executed and
delivered pursuant to the Funding Agreement, merely to reflect the amendments
effected hereby, and shall, in no event, be deemed to cancel or extinguish, or
in any other respect to affect the rights of the Secured Parties with respect
to, amounts outstanding under the VFN prior to such substitution.
2.
3. SECTION Additional APA Banks; Exiting APA Bank;
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4. The Commitments; Consent
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5.
(a) As of the Effective Date, each of BankBoston, N.A., Bank of America,
National Trust and Savings Association and Bayerische Hypo- und Vereinsbank AG,
New York Branch, shall, by its execution and delivery of this Amendment, become
an APA Bank party to the Funding Agreement (as hereby amended) for all purposes
thereof as if originally a party thereto and each of them hereby agrees to be
bound by all of the terms and provisions contained therein.
(b) As of the Effective Date, the Commitment of Credit Suisse First
Boston, New York Branch ("CSFB"), shall be terminated and CSFB shall no longer
be a party to the Funding Agreement.
(c) As of the Effective Date, each APA Bank shall have the respective
Commitment set forth opposite its name on Schedule I to this Amendment (which
is hereby
substituted for Annex I to the Funding Agreement) until the Commitment Expiry
Date (after giving effect to the amendment to such term made pursuant to
Amendment No. 1 to the Sale and Servicing Agreement).
(d) Each of the Funding Agent, PARCO and each APA Bank hereby consents
to the execution and delivery by the respective parties thereto, of Amendment
No. 1 to the Sale and Servicing Agreement, and of Amendment No. 1 to the
Security Agreement, substantially in the form, respectively, of Exhibits B and C
hereto.
(e) Each APA Bank hereby makes or restates, as the case may be, the
representations and warranties set forth in Section 6.1 of the Funding
Agreement, and confirms that such representations and warranties remain true and
correct with respect to the Funding Agreement as hereby amended.
6. SECTION Conditions to Effectiveness. The effectiveness of this
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Amendment shall be subject to the following conditions precedent:
7.
(1) the prior or concurrent satisfaction of each condition precedent to
the effectiveness of Amendment No. 1 to the Sale and Servicing Agreement and
the delivery to the Funding Agent of a counterpart or copy, as appropriate, of
each document or instrument described in Schedule 1 to such Amendment No. 1;
(2) the Funding Agent shall have received the amended VFN, substantially
in the form of Exhibit A hereto, executed by the Borrower;
(3) the Funding Agent shall have received completed and signed I.R.S.
Forms 4224 or 1001, as applicable, from each APA Bank that is not organized
under the laws of the United States or of a state thereof; and
(4) the Funding Agent shall have received an opinion of local (Federal
Republic of Germany) counsel to Bayerische Hypo- und Vereinsbank AG, New York
Branch, with respect to enforceability and to such other matters as are
customary in similar financings, and shall have received from each new APA
Bank an opinion of counsel under New York law or an officer's certificate from
a senior credit officer as to authority, incumbency and other corporate
matters, in each case satisfactory in form and substance to the Funding Agent.
SECTION 6. Representations and Warranties of The Borrower. The
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Borrower hereby affirms that each representation and warranty made by it in
Article III of the Funding Agreement is true and correct on the date hereof,
with the same force and effect as if made on the date hereof (except to the
extent any such representation or warranty by its terms relates to a specific
date) and, without limiting the foregoing, that (x) each of the representations
and warranties made with respect to the Funding Agreement remains true and
correct with respect to said agreement as hereby amended, and (y) each of the
representations and warranties made with respect to the other Basic Agreements
to which the Borrower is a party remains true and correct with respect to the
Sale and Servicing Agreement, as amended by Amendment No. 1 thereto of even date
herewith, and with respect to the Security Agreement, as amended by Amendment
No. 1 thereto of even date herewith.
SECTION 7. Execution in Counterparts. This Amendment may be executed
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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.
SECTION 8. Binding Effect. This Amendment shall be binding upon, and
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inure to the benefit of, the parties hereto and their respective successors and
assigns.
SECTION 9. Governing Law. This Amendment shall be governed by and
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construed in accordance with the laws of the State of New York.
SECTION 10. Severability of Provisions. Any provision of this
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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 11. Captions. The captions in this Amendment are for
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convenience of reference only and shall not define or limit any of the terms or
provisions hereof.
SECTION 12. Funding Agreement to Remain in Full Force and Effect.
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Except as expressly amended hereby, the Funding Agreement shall remain in full
force and effect and, as so amended, is hereby ratified, adopted and confirmed
in all respects. From and after the Effective Date, all references in the
Funding Agreement to "this Agreement", "hereunder", "hereof", "herein", or words
of like import, and all references to the Funding Agreement in any other
agreement or document shall be deemed to refer to the Funding Agreement as
amended hereby.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be executed as of the date and year first above written.
CP FUNDING CORP.,
as Borrower
By /s/
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Name:
Title:
PARK AVENUE RECEIVABLES
CORPORATION,
as Lender
By /s/
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Name:
Title:
THE CHASE MANHATTAN BANK,
as APA Bank
By /s/
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Name:
Title:
THE CHASE MANHATTAN BANK,
as Funding Agent on behalf of the Secured
Parties
By /s/
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Name:
Title:
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION,
as APA Bank
By /s/
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Name:
Title:
BANKBOSTON, N.A., as APA Bank
By /s/
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Name:
Title:
THE BANK OF NOVA SCOTIA, as APA Bank
By /s/
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Name:
Title:
BANK OF TOKYO-MITSUBISHI
(DALLAS), as APA Bank
By /s/
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Name:
Title:
BAYERISCHE HYPO- UND VEREINSBANK AG,
NEW YORK BRANCH, as APA Bank
By /s/
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Name:
Title:
By /s/
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Name:
Title:
ING (U.S.) CAPITAL CORPORATION,
as APA Bank
By /s/
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Name:
Title:
SCHEDULE I
COMMITMENTS
200,000,000
The Chase Manhattan Bank -----------
75,000,000
Bank of America National Trust -----------
and Savings Association
25,000,000
BankBoston, N.A. -----------
25,000,000
The Bank of Nova Scotia, Atlanta Agency -----------
20,000,000
The Bank of Tokyo-Mitsubishi, -----------
Houston Agency
35,000,000
Bayerische Hypo- und Vereinsbank AG, -----------
New York Branch
125,000,000
ING (U.S.) Capital Corporation -----------
Aggregate Commitment 505,000,000
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Date: September 29, 1998