Exhibit 10.3
------------
AMENDMENT NO. 1
to
CREDIT AGREEMENT
between
AMERICREDIT FINANCIAL SERVICES OF CANADA LTD.
and
AMERICREDIT FINANCIAL SERVICES, INC.
and
XXXXXXX XXXXX CAPITAL CANADA INC.
DATED AS OF NOVEMBER 12, 2001
THIS AMENDMENT NO. 1 to the CREDIT AGREEMENT (this "Amendment") is made as
of the 12/th/ day of November, 0000,
X X X X X X X:
AMERICREDIT FINANCIAL SERVICES OF CANADA LTD., a corporation
incorporated pursuant to the laws of the Province of Ontario
(the "Borrower")
- and -
AMERICREDIT FINANCIAL SERVICES, INC., a corporation incorporated
pursuant to the laws of the State of Delaware
(the "Custodian")
- and -
XXXXXXX XXXXX CAPITAL CANADA INC., a corporation incorporated pursuant
to the laws of the Province of Ontario
(the "Lender")
RECITALS:
WHEREAS, the Borrower, the Custodian and the Lender entered into that Credit
Agreement dated as of August 23, 2001 (the "Credit Agreement"); and
WHEREAS, the parties desire to amend the Credit as provided herein;
NOW, THEREFORE, for good and valuable consideration (the receipt and sufficiency
of which are hereby acknowledged by each of the parties hereto), the parties
hereto hereby agree as follows:
1. Defined Terms.
In this Amendment, unless something in the subject matter or the context is
inconsistent therewith, capitalized terms used and not otherwise defined herein
shall have the respective meanings attributed to such terms in Schedule A to the
Credit Agreement.
2. Amendments to Credit Agreement.
(a) Section 8.1.1(c) of the Credit Agreement is hereby deleted in its
entirety, and the following language is inserted in lieu thereof:
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"(c) ensure that the records relating to each Contract forming part
of the Collateral contain the following documents (such
documents, in respect of any Contract, are herein collectively
referred to as the "Contract File" relating to such Contract):
(i) the original fully-executed copy of such Contract;
(ii) an original copy of the related assignment agreement between the
dealer of related Financed Vehicle and the Borrower, together
with the corresponding title or indemnity guarantee by such
dealer in favour of the Borrower;
(iii) evidence of the applicable PPSA registration by the Borrower
against the related Obligor;
(iv) a copy of the purchase order or xxxx of sale pertaining to the
related Financed Vehicle;
(v) concerning a Contract purchased by Borrower from an Independent
Dealer, the applicable Encumbrance search results and other
documentation evidencing that the related Financed Vehicle is
free of any Encumbrances in favour of any Person other than the
Borrower,
(vi) only to the extent actually received by the Borrower:
(A) any related ancillary product documentation, including,
without limitation, any service contract warranty, auto
club documentation, life insurance policy and guarantee
auto protection (or GAP) insurance policy,
(B) a completed reference sheet in respect of the related
Obligor,
(C) a systems overview sheet,
(D) a copy of the birth certificate of the related Obligor or
other evidence as to the name of such Obligor which is
valid for PPSA registration purposes,
(E) proof of the related Obligor' s income and residency,
(F) a photocopy of the Obligor' s driver's licence,
(G) an original copy of the insurance policy, binder or card
pertaining to the related Financed Vehicle,
(H) concerning a Contract purchased by Borrower from a
Franchised Dealer, the applicable Encumbrance search
results and other documentation evidencing that the related
Financed Vehicle is free
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of any Encumbrances in favour of any Person other than the
Borrower, and
(I) the original credit application of the related Obligor;"
(b) Schedule A to the Credit Agreement is hereby amended by adding thereto
the following defined terms:
"Franchised Dealer" means (1) an automobile dealer operating in Canada
pursuant to a franchise agreement with an automobile manufacturer, or
(2) an Independent Dealer whose obligations to Borrower are guaranteed
by a Franchised Dealer affiliated therewith.
"Independent Dealer" means an automobile dealer operating in Canada
not pursuant to a franchise agreement with an automobile manufacturer
and whose obligations to Borrower are not guaranteed by a Franchised
Dealer affiliated therewith.
3. Representations and Warranties.
To induce the Lender to enter into this Amendment, each of the Borrower and
the Custodian hereby represents and warrants (each as to itself) as of the date
hereof that:
(a) It has the power, authority and legal right to make and deliver this
Amendment and to perform its obligations under the Credit 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
Credit 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. The Credit 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 the Credit
Agreement are true and correct in all material respects on and as of the date of
this Amendment and after giving effect hereto, except for those representations
and warranties that address matters only as of a particular prior date.
(d) No Event of Default or Pending Event of Default has occurred and is
continuing under the Credit Agreement on and as of the date of this Amendment
and after giving effect to hereto.
4. Reference to and Effect on the Credit Agreement.
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(a) On and after the date of this Amendment, each reference in the Credit
Agreement, to "this Agreement," "hereunder," "hereof' or words of like import,
and each reference in any other Credit Document to "the Credit Agreement,"
"thereunder," "thereof' or words of like import referring to the Credit
Agreement, shall mean and be a reference to the Credit Agreement as amended
hereby.
(b) Except as specifically amended hereby, the Credit Agreement and the
Credit Documents shall continue to be in full force and effect and is hereby in
all respects ratified and confirmed.
(c) 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 Lender under any of the Credit Documents.
5. 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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6. Governing Law.
This Amendment shall be governed by and construed in accordance with the
laws of the Province of Ontario and the federal laws of Canada applicable in
Ontario.
IN WITNESS WHEREOF, the parties hereto have duly executed this Amendment
effective as of the date first written above.
AMERICREDIT FINANCIAL SERVICES OF
CANADA LTD.
By: ______________________________________
Name: Xxxxxx Xxxxxx
Title: Vice President, Non-Public
Financings and Reporting
AMERICREDIT FINANCIAL SERVICES, INC.
By: ______________________________________
Name: Xxxx Xxxxxxxx
Title: Senior Vice President, Finance
XXXXXXX XXXXX CAPITAL CANADA INC.
By: ______________________________________
Name:
Title:
By: ______________________________________
Name:
Title:
CONSENT OF GUARANTOR
The Guarantor hereby consents to the making, execution and delivery of
Amendment No. 1, dated as of November 12, 2001, to the Credit Agreement dated as
of August 23, 2001 by and among AmeriCredit Financial Services of Canada Ltd.,
as Borrower, AmeriCredit Financial Services, Inc., as Custodian, and Xxxxxxx
Xxxxx Capital Canada Inc., as Lender.
Dated as of this 12/th/ day of November, 2001.
AMERICREDIT CORP.
By: ________________________________________
Xxxxxxx X. Xxxxxx
Executive Vice President and Treasurer
