Confidential information in this Amendment No. 2 to Loan and Servicing Agreement has been omitted and filed separately with the Securities and Exchange Commission pursuant to a Confidential Treatment Request. AMENDMENT NO. 2 TO LOAN AND SERVICING...
Exhibit 10.1
Confidential information in this Amendment No. 2 to Loan and Servicing Agreement has been omitted and
filed separately with the Securities and Exchange Commission pursuant to a Confidential Treatment Request.
AMENDMENT NO. 2 TO
This AMENDMENT NO. 2 TO LOAN AND SERVICING AGREEMENT, dated as of September 19, 2011 (this “Amendment”), is executed by and among DT WAREHOUSE IV, LLC, a Delaware limited liability company (together with its successors and assigns, the “Borrower”), DT CREDIT COMPANY, LLC, an Arizona limited liability company, as servicer (in such capacity, the “Servicer”), XXXXX FARGO BANK, NATIONAL ASSOCIATION, a national banking association, as Backup Servicer, Paying Agent and Securities Intermediary (“Paying Agent”), WINDMILL FUNDING CORPORATION, as Conduit Lender and THE ROYAL BANK OF SCOTLAND PLC, as Program Agent for the Conduit Lenders and the Committed Lenders (“Program Agent”) and as sole Managing Agent and sole Committed Lender. Capitalized terms used, but not otherwise defined herein, shall have the meanings ascribed thereto in the “Loan and Servicing Agreement” (defined below).
WITNESSETH:
WHEREAS, the Borrower, the Servicer, the Program Agent, the Paying Agent, the Commercial Paper Conduits from time to time party thereto, and the Financial Institutions from time to time party thereto entered into that certain Loan and Servicing Agreement dated as of July 23, 2010 as amended by Amendment No. 1 dated as of May 13, 2011 (the “Loan and Servicing Agreement”);
WHEREAS, as provided herein, the parties hereto have agreed to amend certain provisions of the Loan and Servicing Agreement as described below;
NOW, THEREFORE, in consideration of the premises and the mutual agreements hereinafter set forth, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows:
SECTION 1. Amendment to the Loan and Servicing Agreement. Effective as of the date hereof, and subject to the satisfaction of the conditions precedent and subsequent set forth in Section 2 hereof, the Loan and Servicing Agreement is hereby amended as follows:
SECTION 2. Amendment to the Loan and Servicing Agreement. Effective as of the date hereof, and subject to the satisfaction of the conditions precedent and subsequent set forth in Section 2 hereof, the Loan and Servicing Agreement is hereby amended as follows:
2.1 The definitions of “Charged-Off Losses Ratio”, “Delinquency Measurement Ratio”, “DTCS” and “Overconcentration Amount”, set forth in Section 1.01 of the Loan and Servicing Agreement are hereby amended and restated as follows:
“Charged-Off Losses Ratio” means, with respect to any Accounting Period (i) with respect to the Pledged Contracts, the percentage equivalent of a fraction, the numerator of which is the aggregate Principal Balance of such Pledged Contracts which became Charged-Off Contracts during such Accounting Period, minus the aggregate of amounts received by the Servicer during such Accounting Period and applied to any Pledged Contract which is a Charged-Off Contract as of the end of such Accounting
Period, and the denominator of which is the aggregate Principal Balance of all Pledged Contracts as of the end of such Accounting Period, or (ii) with respect to the Managed Portfolio Contracts, the percentage equivalent of a fraction, the numerator of which is the aggregate Principal Balance of the Managed Portfolio Contracts which became Charged-Off Contracts during such Accounting Period, minus the aggregate of amounts received by the Servicer during such Accounting Period and applied to any such Managed Portfolio Contract which is a Charged-Off Contract as of the end of such Accounting Period, and the denominator of which is the aggregate Principal Balance of all Managed Portfolio Contracts as of the end of such Accounting Period.
“Delinquency Measurement Ratio” means, as of any Measurement Date, (a) with respect to the Pledged Contracts, the quotient (expressed as a percentage) of (i) the Principal Balance of the Pledged Contracts which are Delinquency Measurement Contracts as of such Measurement Date, divided by (ii) the aggregate Principal Balance of all Pledged Contracts as of such Measurement Date, or (b) with respect to the Managed Portfolio Contracts, the quotient (expressed as a percentage) of (i) the Principal Balance of all of the Managed Portfolio Contracts which are Delinquency Measurement Contracts as of such Measurement Date, divided by (ii) the aggregate Principal Balance of all Managed Portfolio Contracts as of such Measurement Date
“DTCS” means DriveTime Car Sales Company, LLC, an Arizona limited liability company, together with its successors and each wholly-owned subsidiary of DriveTime Car Sales Company, LLC, created for the purpose of originating Contracts.
“Overconcentration Amount” means, at any time, the sum of (i) the amount, if any, by which the aggregate Principal Balances of all Eligible Contracts as to which the related Contract Debtor is rated “D+”, “D” or “D-” pursuant to the Credit and Collection Policy exceeds the product of 5.00% and the aggregate Principal Balances of all Eligible Contracts at such time, plus (ii) the amount, if any, by which the aggregate Principal Balances of all Eligible Contracts as to which the related Contract Debtor is rated “C-”, “D+”, “D” or “D-” pursuant to the Credit and Collection Policy exceeds the product of 12.50% and the aggregate Principal Balances of all Eligible Contracts at such time, plus (iii) the amount, if any, by which the aggregate Principal Balances of all Eligible Contracts as to which the Contract Debtors have an address in a particular State (other than Texas or Florida) exceeds the product of 15% and the aggregate Principal Balances of all Eligible Contracts at such time, plus (iv) the amount, if any, by which the aggregate Principal Balances of all Eligible Contracts as to which the Contract Debtors have an address in Texas exceeds the product of 30% and the aggregate Principal Balances of all Eligible Contracts at such time, plus (v) the amount, if any, by which the aggregate Principal Balances of all Eligible Contracts as to which the Contract Debtors have an address in Florida exceeds the product of 22.5% and the aggregate Principal Balances of all Eligible Contracts at such time plus (vi) the amount by which the aggregate Principal Balances of all Eligible Contracts as to which all or part in excess of 10.00% of any Scheduled Payment is 31 or more but less than 61 days delinquent exceeds the product of 5.00% and the aggregate Principal Balances of all Eligible Contracts at such time plus (vii) the amount by which the aggregate Principal Balances of all Eligible Contracts as to
which the original term to maturity exceeds sixty-eight (68) months exceeds the product of 5.00% and the aggregate Principal Balances of all Eligible Contracts at such time.
2.2 The definition of “Eligible Contract” set forth in Section 1.01 of the Loan and Servicing Agreement is hereby amended by deleting clauses (g), (i) and (uu) thereof and substituting, in lieu thereof, respectively, the following:
(g) which is not (i) a Charged-off Contract, (ii) a Contract for which the Contract Debtor is a party to a proceeding under any Debtor Relief Law which arose after the creation of such Contract (other than as a creditor or claimant), (iii) a Contract for which the Amount Financed was in excess of $30,000, or (iv) a Contract that (A) was previously a Pledged Contract and (B) was previously transferred by the Borrower in connection with a Contract Disposition Transaction and, at the time of such Contract Disposition Transaction, was a Delinquency Measurement Contract; provided that notwithstanding the foregoing, a Contract of the type described in this clause (iv) may become an Eligible Contract if it otherwise satisfies the definition thereof upon the earlier of (x) the date after such Contract Disposition Transaction on which such Contract is not a Delinquency Measurement Contract and the related Contract Debtor has made at least four (4) Scheduled Payments thereunder and (y) the date on which such Contract was not a Delinquency Measurement Contract for three (3) consecutive Accounting Periods;
(i) which (i) has an original term to maturity that is not less than twelve (12) months and does not exceed sixty-two (62) months, or such other period as may be agreed to from time to time by the Borrower and the Program Agent, provided that (x) for Receivables as to which the Contract Debtor is rated “B” the original term to maturity is not less than twelve (12) months and does not exceed sixty-eight (68) months and (y) for Receivables as to which the Contract Debtor is rated “A” the original term to maturity is not less than twelve (12) months and does not exceed seventy-two (72) months, (ii) the Schedule of Payments has equal periodic payments except for payments due during the first 90 days of the term of such Contract, and except for the final payment which may be less than the other equal payments, and the payment obligation is in United States dollars, and (iii) does not cause the weighted average (based on Principal Balances of the applicable Eligible Contracts) original term to maturity of all Eligible Contracts that are Pledged Contracts to exceed sixty-two (62) months; provided that the Pledged Contracts rendered ineligible solely pursuant to the foregoing clause (iii) shall be selected by the Borrower from the Pledged Contracts with the longest original term to maturity and only with Principal Balances required to reduce such weighted average original term to maturity of all Eligible Contracts that are Pledged Contracts to or below sixty-two (62) months; provided that any such ineligible Pledged Contract may be subsequently designated by the Borrower as an “Eligible Contract” if the eligibility of such Pledged Contract would not cause such weighted average original term to maturity of all Pledged Contracts to exceed sixty-two (62) months.
(uu) with respect to which the scheduled payments under the Contract are due at least monthly in level payments through its maturity date sufficient to fully amortize the principal balance of such Contract by its maturity date, assuming timely payment by
Obligors on simple interest Contracts, except that the payment in the first or last month of the life of the Contract may be minimally different from the level payment.
2.3 Section 1.01 of the Loan and Servicing Agreement is hereby amended by deleting the definition of “Ineligible Securitization Contract”.
2.4 Section 4.01(j) of the Loan and Servicing Agreement is hereby amended and restated as follows:
(j) Collection Information; Master Agency Agreement. The names and addresses of all the Approved Sub-servicers, Depository Account Banks and Lock-Box Processors, together with the addresses of the Lock-Boxes and the account numbers of the Depository Accounts are as specified in Exhibit F. The Lock-Boxes set forth on Exhibit F are the only addresses to which Contract Debtors and Approved Sub-servicers of Pledged Contracts are directed to make payment. The Depository Accounts set forth on Exhibit F are the only accounts (other than zero balance accounts) to which Contract Debtors, Approved Sub-servicers or Lock-Box Processors remit Collections of Pledged Contracts by wire transfer or electronic funds transfer. Exhibit N hereto is a full, complete and correct copy of the Master Agency Agreement and such agreement has not been modified and is in full force and effect. There are no agreements or understandings relating to the Master Agency Agreement that are not fully and accurately described in Exhibit N. No DT Entity has granted any Person, other than Xxxxx Fargo Bank, National Association under the Master Agency Agreement, “control” (within the meaning of Section 9-102 of any applicable enactment of the UCC) of any Depository Account or the right to take control of any Depository Account at a future time or upon the occurrence of a future event.
2.5 Schedule II to the Loan and Servicing Agreement is hereby amended and restated as set forth on Schedule II hereto.
2.6 Exhibit F to the Loan and Servicing Agreement is hereby amended and restated as set forth on Exhibit F hereto.
SECTION 3. Conditions to Effectiveness.
3.1 Conditions Precedent. This Amendment shall become effective as of the date hereof upon receipt by the Program Agent of counterparts of this Amendment executed by each of the parties hereto.
3.2 Conditions Subsequent. The continued effectiveness of this Amendment shall be conditioned upon the delivery to the Program Agent and Managing Agents, on or prior to October 31, 2011, of a written reaffirmation or other confirmation satisfactory to Program Agent from DBRS with respect to the “AA” rating of Notes (and any failure to deliver such reaffirmation or other confirmation by such date shall be deemed an “Amendment Termination Event”). Upon the occurrence of an Amendment Termination Event, this Amendment shall be automatically terminated and cease to be of any force or effect and the terms of the Loan and Servicing Agreement shall revert to the terms of the Loan and Servicing Agreement without regard to this Amendment. It is hereby understood and agreed that if, upon the occurrence of an
Amendment Termination Event and the resulting termination of the Amendment, there occurs a Borrowing Base Deficiency, such Borrowing Base Deficiency shall be deemed to occur as of October 31, 2011 and shall be remedied pursuant to Section 2.05(b) of the Loan and Servicing Agreement (and if not so remedied, shall constitute an Event of Termination as of such date pursuant to Section 7.01(a) of the Loan and Servicing Agreement).
SECTION 4. Representations, Warranties and Confirmations. Each of the Servicer and the Borrower hereby represents and warrants that:
4.1 It has the power and is duly authorized to execute and deliver this Amendment.
4.2 The execution and delivery of this Amendment has been duly authorized by all corporate or limited liability company action necessary on its part.
4.3 This Amendment and the Loan and Servicing Agreement as amended hereby, constitute legal, valid and binding obligations of such parties and are enforceable against such parties in accordance with their terms.
4.4 Immediately prior, and after giving all effect, to this Amendment, the covenants, representations and warranties of each such party, respectively, set forth in the Loan and Servicing Agreement and as amended hereby, are true and correct in all material respects as of the date hereof (except to the extent such representations or warranties relate solely to an earlier date and then as of such date).
4.5 Immediately prior, and after giving all effect, to this Amendment, no event, condition or circumstance has occurred and is continuing which constitutes an Event of Termination or Incipient Event of Termination.
SECTION 5. Entire Agreement. The parties hereto hereby agree that this Amendment constitutes the entire agreement concerning the subject matter hereof and supersedes any and all written and/or oral prior agreements, negotiations, correspondence, understandings and communications.
SECTION 6. Effectiveness of Amendment. Except as expressly amended by the terms of this Amendment, all terms and conditions of the Loan and Servicing Agreement shall remain in full force and effect and are hereby ratified and confirmed. This Amendment is effective only for the specific purpose for which it is given and shall not operate as a consent, waiver, amendment or other modification of any other term or condition set forth in the Loan and Servicing Agreement or any right, power or remedy of any Program Agent under the Loan and Servicing Agreement. Upon the effectiveness of this Amendment, each reference in the Loan and Servicing Agreement to “this Agreement” or “this Loan and Servicing Agreement” or words of like import shall mean and be references to the Loan and Servicing Agreement as amended hereby, and each reference in any other Facility Document to the Loan and Servicing Agreement or to any terms defined in the Loan and Servicing Agreement which are modified hereby shall mean and be references to the Loan and Servicing Agreement or to such terms as modified hereby.
SECTION 7. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 8. Severability. In case any provision in this Amendment will be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions will not in any way be affected or impaired thereby.
SECTION 9. Binding Effect. This Amendment shall be binding upon and shall be enforceable by parties hereto and their respective successors and permitted assigns.
SECTION 10. Headings. The Section headings herein are for convenience only and will not affect the construction hereof.
SECTION 11. Novation. This Amendment does not constitute a novation or termination of the Loan and Servicing Agreement or any Facility Document and all obligations thereunder are in all respects continuing with only the terms thereof being modified as provided herein.
SECTION 12. Counterparts. This Amendment may be executed in any number of counterparts, each of which so executed will be deemed to be an original, but all such counterparts will together constitute but one and the same instrument.
[SIGNATURE PAGE TO FOLLOW]
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed and delivered by their respective authorized officers as of the date first above written.
| DT WAREHOUSE IV, LLC | ||
| By: | /s/ Xxx Xxxxxxxx | |
| Name: | Xxx Xxxxxxxx | |
| Title: | Secretary | |
| DT CREDIT COMPANY, LLC | ||
| By: | /s/ Xxx Xxxxxxxx | |
| Name: | Xxx Xxxxxxxx | |
| Title: | Secretary | |
| XXXXX FARGO BANK, NATIONAL ASSOCIATION | ||
| as Backup Servicer, Paying Agent and Securities Intermediary | ||
| By: | /s/ Xxxxxxx X. Xxxxx | |
| Name: | Xxxxxxx X. Xxxxx | |
| Title: | Vice President | |
| WINDMILL FUNDING CORPORATION | ||
| as Conduit Lender | ||
| By: | /s/ Xxxx X. Xxxxx | |
| Name: | Xxxx X. Xxxxx | |
| Title: | Vice President | |
| THE ROYAL BANK OF SCOTLAND PLC as Program Agent, sole Managing Agent and sole | ||
| Committed Lender | ||
| By: | RBS Securities Inc., as agent | |
| By: | /s/ Xxxxxxx X. Xxxxxx | |
| Name: | Xxxxxxx X. Xxxxxx | |
| Title: | Managing Director | |
SCHEDULE II
NOTICE ADDRESSES
DT Warehouse IV,
LLC 0000 Xxxx Xxxxxx Xxxxxx Xxxx, Xxxxx 000
Xxxxxxx, XX 00000
Telephone: (000) 000-0000
Attention: Secretary
DT Credit Company, LLC
0000 Xxxx Xxxxxx Xxxxxx Xxxx
Xxxxxxx, XX 00000
Telephone: (000) 000-0000
Attention: Secretary
Xxxxx Fargo Bank, National Association
MAC X0000-000
Xxxxx Xxxxxx xxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Corporate Trust Services – Asset-Backed Administration
The Royal Bank of Scotland PLC
000 Xxxx Xxxxxxx Xx.
Xxxxxxx, XX 00000
Attention: Xxxxxx Xxxxxxxxxxxx
Telephone: 000 000 0000
Fax: 000-000-0000
E-mail: Xxxxxx.Xxxxxxxxxxxx@xxx.xxx
Windmill Funding Corporation
c/o Global Securitization Services, LLC
00 Xxxxx Xxxxxxx Xxxx, Xxx. 000
Xxxxxxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
With a copy to:
RBS Global Banking and Markets
000 Xxxx Xxxxxxx Xxxxxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Windmill-Administrator
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
DBRS
000 Xxxxxxxx, 00xx xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: ABS Surveillance
With a copy to: XXX_xxxxxxxxxxxx@xxxx.xxx
EXHIBIT F
LIST OF LOCK-BOXES, LOCK-BOX PROCESSORS; DEPOSITORY
ACCOUNTS; AND DEPOSITORY ACCOUNT BANKS
HOME XXXXXX
0000 Xxxx Xxxxxx Xxxxxx Xxxx, Xxxxxxx, XX 00000
MESA XXXXXX
0000 Xxxx Xxxxxxx Xxxxxxxxx, Xxxx, XX 00000
DEALERSHIPS
PROVIDED BY DTAC
P.O. BOXES
DT Credit Company, LLC, X.X. Xxx 00000, Xxxxxxx, XX 00000
DEPOSITORY ACCOUNTS
Xxxxx Fargo Bank, 000 Xxxx Xxxxxxxxxx Xxxxxx, Xxxxxxx, XX 00000
Attn: Mr. Xxxx Xxxxx, (000) 000-0000
Acct: [*] (Concentration)
Acct: [*] (Collection)
| * | Confidential information on this page has been omitted and filed separately with the Securities and Exchange Commission pursuant to a Confidential Treatment Request. |
