FIRST AMENDMENT TO
SECOND RESTATED REVOLVING CREDIT AGREEMENT
This First Amendment To Second Restated Revolving Credit Agreement (this
"First Amendment") is made by and among AMERICREDIT CORP., a Texas corporation
("Company"), AMERICREDIT FINANCIAL SERVICES, INC., a Delaware corporation,
AMERICREDIT OPERATING CO., INC., a Delaware corporation (individually, a
"Borrower" and collectively, the "Borrowers"), AMERICREDIT PREMIUM FINANCE,
INC., a Delaware corporation, and ACF INVESTMENT CORP., a Delaware corporation,
and WELLS FARGO BANK (TEXAS), NATIONAL ASSOCIATION, BANK ONE, TEXAS, N.A.,
LASALLE NATIONAL BANK, THE SUMITOMO BANK, LIMITED, HARRIS TRUST AND SAVINGS
BANK, COMERICA BANK-TEXAS, TEXAS COMMERCE BANK NATIONAL ASSOCIATION, BANKAMERICA
BUSINESS CREDIT, INC. and THE BANK OF NOVA SCOTIA (collectively, the "Banks"),
WELLS FARGO BANK (TEXAS), NATIONAL ASSOCIATION, as agent for the Banks ("Agent")
and BANK ONE, TEXAS, N.A. ("Co-Agent").
WHEREAS, on October 7, 1996, the parties entered into that one certain
Second Restated Revolving Credit Agreement (the "Credit Agreement") providing
for a revolving credit facility to Borrowers in the maximum amount of
$240,000,000 at any one time outstanding; and
WHEREAS, Borrowers and Guarantors propose to issue $125,000,000 in Senior
Notes and Subsidiary guarantees thereof pursuant to a Preliminary Offering
Memorandum dated January 20, 1997, and Banks consent to such issuances of Senior
Notes and Subsidiary guarantees as they are described in the Preliminary
Offering Memorandum; and
WHEREAS, Borrowers and Guarantors have requested Banks to amend the Credit
Agreement so that its terms will not conflict with the issuance of the Senior
Notes and Subsidiary guarantees thereof; and
NOW THEREFORE, for good and valuable consideration, the receipt and total
sufficiency of which is hereby acknowledged, it is agreed by and among the
parties as follows:
1.
Section 9.04, Section 9.05 and 9.12 of the Credit Agreement are amended to
read in their entirety as follows:
9.04. LIMITATION ON ADDITIONAL INDEBTEDNESS. Incur or assume or
permit any of its Subsidiaries to incur or assume any Indebtedness, except
for (i) the indebtedness evidenced by the Notes; (ii) trade debt incurred in
the ordinary course of business; (iii) up to but not exceeding ten million
dollars ($10,000,000) in the aggregate at any time (excluding indebtedness in
the aggregate amount of up to $125,000,000 evidenced by Senior Notes);
(iv) indebtedness arising from Securitizations; (v) indebtedness arising under
an Additional Warehouse Facility, (vi) indebtedness of the Mortgage Subsidiary;
(vii) Guarantees by any of Borrowers or the Guarantors with respect to the
Mortgage Subsidiary; and (viii) indebtedness in an aggregate amount of up to
one hundred twenty-five million dollars ($125,000,000) evidenced by Senior
Notes. As used herein, the term "Senior Notes" shall mean those senior
unsecured notes of the Company due 2004 and all Guarantees thereof by the
other Borrowers, Guarantors and the Mortgage Subsidiary to be sold pursuant
to a Preliminary Offering Memorandum dated January 20, 1997 and issued or to
be issued pursuant to an Indenture between the Company and the trustee named
therein, and any new issue of debt securities of the Company and all
Guarantees thereof by the other Borrowers, Guarantors and the Mortgage
Subsidiary with the same terms issued in exchange for such senior unsecured
notes; or
9.05. RESTRICTIONS ON DIVIDENDS ON CAPITAL STOCK. Pay any dividends
or make any distributions on or with respect to its outstanding capital stock
except to Company or its wholly-owned Subsidiaries or purchase or redeem any of
its capital stock in excess of the sum of fifteen million dollars ($15,000,000)
and the aggregate amount of
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new equity received by Company as a result of the sale of capital stock of
Company or the exercise of options relating to the capital stock of Company
during any trailing twelve (12) months; or
9.12. NO GRANT OF NEGATIVE PLEDGE. Agree with any Person not to create
or suffer to exist any mortgage, pledge, security interest or encumbrance or
Lien upon any of its property or assets now owned or hereafter acquired
except with respect to the property or assets of the Mortgage Subsidiary or
in connection with the issuance of the Senior Notes; or
2.
Except as amended above and by this First Amendment, the Credit Agreement
is ratified and confirmed and shall remain in full force and effect.
3.
Borrowers agree to pay all costs and expenses incurred by Banks in
connection with this First Amendment.
4.
This First Amendment may be executed in multiple counterparts, each of
which shall constitute an original.
5.
This First Amendment shall be binding upon and inure to the benefit of the
parties and their respective successors and assigns.
6.
THIS WRITTEN AGREEMENT REPRESENTS THE FINAL AGREEMENT AMONG THE PARTIES
RELATING TO THE SUBJECT MATTER HEREOF AND MAY NOT BE CONTRADICTED BY EVIDENCE OF
PRIOR, CONTEMPORANEOUS
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OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL
AGREEMENTS AMONG THE PARTIES.
Executed to be effective as of January 22, 1997.
AMERICREDIT CORP., a Texas
corporation
By:
-----------------------------------------
Preston Miller, Vice President
AMERICREDIT FINANCIAL SERVICES,
INC., a Delaware corporation
By:
-----------------------------------------
Preston Miller, Senior Vice President
AMERICREDIT OPERATING CO., INC., a
Delaware corporation
By:
-----------------------------------------
Preston Miller, Senior Vice President
BORROWERS
AMERICREDIT PREMIUM FINANCE,
INC., a Delaware corporation
By:
-----------------------------------------
Preston Miller, Senior Vice President
ACF INVESTMENT CORP., a Delaware
corporation
By:
-----------------------------------------
Preston Miller, Senior Vice President
GUARANTORS
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WELLS FARGO BANK (TEXAS), NATIONAL ASSOCIATION
By:
-----------------------------------------
Susan B. Sheffield, Vice President
BANK ONE, TEXAS, N.A.
By:
-----------------------------------------
J. Michael Wilson, Vice President
LASALLE NATIONAL BANK
By:
-----------------------------------------
Terry M. Keating, First Vice
President
THE SUMITOMO BANK LIMITED
By:
-----------------------------------------
John J. O'Neill, Vice President and
Manager
By:
-----------------------------------------
Julie Schell, Vice President
HARRIS TRUST AND SAVINGS BANK
By:
-----------------------------------------
Robert G. Bomben, Vice President
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COMERICA BANK-TEXAS
By:
-----------------------------------------
Jeffrey A. Moten, Vice
President
TEXAS COMMERCE BANK NATIONAL ASSOCIATION
By:
-----------------------------------------
Buddy Wurthrich, Vice President
BANKAMERICA BUSINESS CREDIT, INC.
By:
-----------------------------------------
Joseph P. LaCognata, Executive
Vice President
THE BANK OF NOVA SCOTIA
By:
-----------------------------------------
F. C. H. Asby, Senior Manager-
Loan Operations
BANKS
WELLS FARGO BANK (TEXAS), NATIONAL ASSOCIATION
By:
-----------------------------------------
Susan B. Sheffield, Vice President
AGENT
BANK ONE, TEXAS, N.A.
By:
-----------------------------------------
J. Michael Wilson, Vice President
CO-AGENT
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SECOND RESTATED
REVOLVING CREDIT AGREEMENT
This Second Restated Revolving Credit Agreement (this "Loan Agreement") is
entered into by and among AMERICREDIT CORP., a Texas corporation ("Company"),
AMERICREDIT FINANCIAL SERVICES, INC., a Delaware corporation, AMERICREDIT
OPERATING CO., INC., a Delaware corporation, AMERICREDIT PREMIUM FINANCE, INC.,
a Delaware corporation, and ACF INVESTMENT CORP., a Delaware corporation, and
WELLS FARGO BANK (TEXAS), NATIONAL ASSOCIATION, BANK ONE, TEXAS, N.A., LASALLE
NATIONAL BANK, THE SUMITOMO BANK, LIMITED, HARRIS TRUST AND SAVINGS BANK,
COMERICA BANK-TEXAS, TEXAS COMMERCE BANK NATIONAL ASSOCIATION, BANKAMERICA
BUSINESS CREDIT, INC. and THE BANK OF NOVA SCOTIA (collectively, the "Banks"),
WELLS FARGO BANK (TEXAS), NATIONAL ASSOCIATION, as agent for the Banks ("Agent")
and BANK ONE, TEXAS, N.A. ("Co-Agent").
W I T N E S S E T H:
WHEREAS, AmeriCredit Corp., AmeriCredit Financial Services, Inc., Agent and
certain of Banks entered into that one certain Revolving Credit Agreement dated
September 21, 1994; and
WHEREAS, AmeriCredit Corp., AmeriCredit Financial Services, Inc.,
AmeriCredit Operating Co., Inc., Guarantors, Agent and certain of the Banks
entered into that one certain Restated Revolving Credit Agreement dated June 2,
1995 (the "Prior Loan Agreement"); and
WHEREAS, AmeriCredit Corp., AmeriCredit Financial Services, Inc.,
AmeriCredit Operating Co., Inc. (individually, a "Borrower" and collectively,
the "Borrowers"), Guarantors, Agent and Banks have agreed to amend and restate
the Prior Loan Agreement in its entirety.
NOW, THEREFORE, in consideration of the mutual promises herein contained
and for other valuable consideration, the parties hereto do hereby agree to
amend and restate the Prior Loan Agreement in its entirety as follows:
ARTICLE I
DEFINITION OF TERMS
For the purposes of this Loan Agreement, unless the context requires
otherwise, the following terms shall have the respective meanings assigned to
them in this Article I below:
"ADDITIONAL WAREHOUSE FACILITY" shall mean any additional nonrecourse
credit facility or arrangement, other than a Securitization, pursuant to which
Borrowers or their Affiliates sell or refinance Finance Contracts securing
Obligations under the Loan Documents.
"ADJUSTED INDEBTEDNESS" shall mean the Indebtedness of Company and its
Subsidiaries, less obligations related to Securitizations and Obligations
related to Additional Warehouse Facilities, that are in each case nonrecourse to
the Borrowers.
"ADJUSTED INTERBANK RATE" shall, with respect to each Interest Period, mean
on any day thereof the quotient of (a) the Interbank Offered Rate with respect
to such Interest Period, DIVIDED BY (b) the remainder of 1.00 MINUS the
Eurodollar Reserve Requirement in effect on such day.
"ADVANCE" shall have the meaning assigned to it in Section 2.01 hereof.
"AFFILIATE" of any designated Person means any Person that has a
relationship with the designated Person whereby either of such Persons directly
or indirectly controls or is controlled by or is under common control with the
other, or holds or beneficially owns five percent (5%) or more of any class of
voting securities of the other. For this purpose, "control" means the power,
direct or indirect, of one Person to direct or cause direction of the management
and policies of another, whether by contract, through voting securities or
otherwise. Notwithstanding the foregoing, no Person shall be deemed to be an
Affiliate of another solely by reason of such Person's being a participant in a
joint operating group or joint undivided ownership group. For purposes of this
Loan Agreement, the term "Affiliate" shall include special purpose subsidiary
corporations and trusts formed or sponsored by the Company or its subsidiaries
for the purpose of facilitating one or more Securitizations.
"APPLICABLE MARGIN" shall mean the percentage set forth below opposite the
rating by Standard & Poors, Moody's Investor Service or Fitch Investor Service
in effect with respect to the Indebtedness of Borrowers to Banks on the date of
the particular Eurodollar Borrowing:
DEBT RATING PERCENTAGE
----------- ----------
Unrated or less than
BBB-/Baa3 1.55%
BBB-/Baa3 1.40%
BBB/Baa2 or higher 1.25%
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In the event that the Ratings are not the same at a particular time, the
Applicable Margin shall be based upon the highest rating assigned to such
Indebtedness by Standard & Poors, Moody's Investor Service or Fitch Investor
Service.
"ARBITRATION PROGRAM" shall have the meaning assigned to it in Article XI
hereof.
"BANKS" shall mean Wells Fargo Bank (Texas), National Association and all
other banks which are parties to this Loan Agreement or any amendment thereto.
"BORROWERS" shall mean AmeriCredit Corp., a Texas corporation, AmeriCredit
Financial Services, Inc., a Delaware corporation, and AmeriCredit Operating Co.,
Inc., a Delaware corporation.
"BUSINESS DAY" shall mean a day upon which business is transacted by
national banks in Fort Worth, Texas, New York, New York and San Francisco,
California.
"CAPITAL LEASE" shall mean, as of any date, any lease of property, real or
personal, which would be capitalized on a balance sheet of the lessee prepared
as of such date, in accordance with GAAP.
"CAPITAL LEASE OBLIGATION" shall mean any rental obligation which, under
GAAP, is or will be required to be capitalized on the books of the Company or
any Subsidiary, taken at the amount thereof accounted for as indebtedness (net
of interest expense) in accordance with GAAP.
"COMMITMENT" shall have the meaning assigned to it in Section 2.01 hereof.
"CONSEQUENTIAL LOSS" shall, with respect to the payment by any of Borrowers
or any of Guarantors of all or any portion of the then outstanding principal
amount of any Bank's Eurodollar Advance on a day other than the last day of the
Interest Period related thereto, mean any loss, cost or expense incurred by such
Bank as a result of the timing of such payment or in redepositing such principal
amount, including the sum of (i) the interest which, but for such payment, such
Bank would have earned in respect of such principal amount so paid, for the
remainder of the Interest Period applicable to such sum, reduced, if such Bank
is able to redeposit such principal amount so paid for the balance of such
Interest Period, by the interest earned by such Bank as a result of so
redepositing such principal amount PLUS (ii) any expense or penalty incurred by
such Bank on redepositing such principal amount.
"CONSOLIDATED" shall mean the consolidation of any Person, in accordance
with GAAP, with its properly consolidated subsidiaries. References herein to a
Person's Consolidated financial statements, financial position, financial
condition, liabilities, etc., refer to the consolidated financial statements,
financial position, financial condition, liabilities, etc. of such Person and
its properly consolidated subsidiaries.
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"CONTROLLED GROUP" shall mean (i) the controlled group of corporations as
defined in section 1563 of the United States Internal Revenue Code of 1986, as
amended, or (ii) the group of trades or business under common control as defined
in section 414(c) of the United States Internal Revenue Code of 1986, as
amended, of which Company is part or may become a part.
"DEALER" shall mean a retail vendor of motor vehicles from which
AmeriCredit Financial Services, Inc. acquires Finance Contracts which is not an
Affiliate of any of Borrowers.
"DEALER DISCOUNT" shall mean, with respect to a Finance Contract, the
amount equal to the difference between (i) the face amount of the Finance
Contract, less unearned interest or finance charges and fees, and (ii) the
amount of cash advanced to the Dealer for the purchase of such Finance Contract.
"DELINQUENT LOANS" shall mean Net Indirect Loans having an installment
payment or final payment which is more than 60 days past due (without regard to
any grace period) on a contractual basis except Net Indirect Loans which were
secured by a motor vehicle that has been repossessed.
"DIVIDENDS", in respect of any corporation, shall mean:
(1) Cash distributions or any other distributions on, or in
respect of, any class of capital stock of such corporation,
except for distributions made solely in shares of stock of
the same class; and
(2) Any and all funds, cash or other payments made in respect of
the redemption, repurchase or acquisition of such stock,
unless such stock shall be redeemed or acquired through the
exchange of such stock with stock of the same class.
"DOLLARS" and the sign "$" shall mean lawful currency of the United States
of America.
"DOMESTIC FINANCE CONTRACT" shall mean a Finance Contract that is
denominated and payable only in Dollars.
"EBIT" shall mean income from operations after deducting all expenses
except interest and taxes and eliminating all extraordinary items.
"ELIGIBLE FINANCE CONTRACT" shall mean a Finance Contract,
(i) that is secured by an Eligible Vehicle,
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(ii) that represents a Domestic Finance Contract to an Obligor (other
than an Affiliate of Borrower),
(iii) that was originated by a Dealer unless otherwise consented
to in writing by the Agent (which consent shall not be unreasonably
withheld),
(iv) that is not delinquent (without regard to any stated grace
period) more than thirty (30) days on a contractual basis prior to any
repossession of the related Eligible Vehicle,
(v) that has not been modified in any respect, unless the Finance
Contract constitutes an Eligible Modified Finance Contract,
(vi) in respect of which the related Eligible Vehicle has not been
repossessed,
(vii) that is not a Stayed Loan,
(viii) that, as set forth in a written opinion, in form and
substance, and from legal counsel, reasonably satisfactory to the Agent,
constitutes chattel paper in which a security interest may be perfected
under the UCC of the applicable jurisdiction by filing financing statements
and making a notation of the security interests on the chattel paper and
without taking possession of either the agreements evidencing such Finance
Contract or related certificates of title.
(ix) that is not subject to a Lien in favor of a Person other than the
Agent on behalf of the Banks and that is not subject to a Securitization or
an Additional Warehouse Facility; and
(x) in respect of which the representations and warranties set forth
in the Security Agreement are true.
"ELIGIBLE MODIFIED FINANCE CONTRACT" shall mean a Finance Contract that
has been modified in any way which affects the contractual timing or amount of
any installment payment due under such Finance Contract and which satisfies each
of the following conditions: (1) no installment payment was more than sixty (60)
days past due at the time of any modification, (2) no modification extended the
original maturity date by more than ninety (90) days, (3) no modification caused
a permanent reduction in any monthly installment payment by more than five
percent (5%), (4) the modification did not permit the deferral of more than two
(2) installment payments, (5) not more than one (1) modification involving the
deferral of two (2) installment payments or not more than two (2) modifications
involving the deferral of one (1)
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installment payment has occurred during any twelve (12) month period, and (6)
is otherwise an Eligible Finance Contract.
"ELIGIBLE VEHICLE" shall mean a new or used motor vehicle that (i) to the
best of any Borrower's knowledge is not acquired for use in a commercial
enterprise or as part of a fleet, and (ii) in respect of which any of Borrowers
(a) has, within forty five (45) days following the date of a Finance Contract,
properly filed an application seeking to obtain legal title or a first priority
lien under the applicable provisions of the motor vehicle or other similar law
of the applicable jurisdiction and (b) has obtained or obtains, within one
hundred fifty (150) days following the date of a Finance Contract, legal title
or a first priority lien under applicable provisions of the motor vehicle or
other similar law of the applicable jurisdiction.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974, as
amended, together with all regulations issued pursuant thereto.
"ENVIRONMENTAL CLAIM" shall mean any written notice by any Person alleging
potential liability or responsibility for (a) any removal or remedial action,
including, without limitation, any clean-up, removal or treatment of any
Hazardous Material or any action to prevent or minimize the release or movement
of any Hazardous Materials through or in the air, soil, surface water, ground
water or other property, (b) damage to the environment, or costs with respect
thereto, or (c) personal injury (including sickness, disease or death),
resulting from or based upon (i) the presence, release or movement (including
sudden or nonsudden, accidental or nonaccidental, leaks or spills) of any
Hazardous Material at, in or from the environment or any property, whether or
not owned by the Company, or (ii) circumstances forming the basis of any
violation, or alleged violation, of any Environmental Law or any permit issued
to Company or any of its Subsidiaries pursuant to any Environmental Law.
"ENVIRONMENTAL LAWS" shall mean the Comprehensive Environmental Response,
Compensation, and Liability Act (42 U.S.C. Section 9601 ET SEQ.), the Hazardous
Material Transportation Act (49 U.S.C. Section 1801 ET SEQ.), the Resource
Conservation and Recovery Act (42 U.S.C. Section 6901 ET SEQ.), the Federal
Water Pollution Control Act (33 U.S.C. Section 1251 ET SEQ.), the Clean Air Act
(42 U.S.C. Section 7401 ET SEQ.), the Toxic Substances Control Act (15 U.S.C.
Section 2601 ET SEQ.), and the Occupational Safety and Health Act (29 U.S.C.
Section 651 ET SEQ.), as such laws have been or hereafter may be amended or
supplemented, and any and all analogous future federal, or present and future
state or local laws, and similar laws of jurisdictions other than the United
States, to which Company or any of its Subsidiaries or any of its or their
properties are subject.
"EURODOLLAR ADVANCE" shall mean any principal amount under a Note with
respect to which the interest rate is calculated by reference to the Adjusted
Interbank Rate for a particular Interest Period.
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"EURODOLLAR BORROWING" shall mean any Borrowing composed of
Eurodollar Advances.
"EURODOLLAR BUSINESS DAY" shall mean a Business Day on which dealings in
Dollars are carried out in the London Interbank market.
"EURODOLLAR RESERVE REQUIREMENT" shall, on any day, mean that percentage
(expressed as a decimal fraction rounded up to the nearest 1/100th) which is in
effect on such day, as provided by the Board of Governors of the Federal Reserve
System (or any successor governmental body) applied for determining the maximum
reserve requirements (including without limitation, basic, supplemental,
marginal and emergency reserves) under Regulation D with respect to
"Eurocurrency liabilities" as currently defined in Regulation D, or under any
similar or successor regulation with respect to Eurocurrency liabilities or
Eurocurrency funding. Each determination by Agent of the Eurodollar Reserve
Requirement shall, in the absence of manifest error, be conclusive and binding.
"EVENT OF DEFAULT" shall have the meaning assigned to it in Article X
hereof.
"FDIC" shall mean the Federal Deposit Insurance Corporation (or any
successor thereof).
"FEDERAL FUNDS RATE" shall mean, for any period, a fluctuating interest
rate per annum equal for each day during such period to the weighted average of
the rates on overnight Federal funds transactions with members of the Federal
Reserve System arranged by Federal funds brokers, as published for such day (or,
if such day is not a Business Day, for the next preceding Business Day) by the
Federal Reserve Bank of New York, or, if such rate is not so published for any
day which is a Business Day, the average of the quotations for such day on such
transactions received by the Agent from three Federal funds brokers of
recognized standing selected by Agent.
"FINANCE CONTRACT" shall mean a motor vehicle installment sales contract
assigned to AmeriCredit Financial Services, Inc. or an Affiliate of AmeriCredit
Financial Services, Inc. that is secured by title to, security interests in, or
liens on a motor vehicle under applicable provisions of the motor vehicle or
other similar law of the jurisdiction in which the motor vehicle is titled and
registered by the purchaser at the time the contract is originated.
"FLOATING BASE ADVANCE" shall mean any principal amount under a Note with
respect to which the interest rate is calculated by reference to the Floating
Base Rate.
"FLOATING BASE BORROWING" shall mean any Borrowing composed of Floating
Base Advances.
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"FLOATING BASE RATE" shall mean the greater of (a) the Floating Prime Rate
in effect from day to day or (b) the Federal Funds Rate plus one half of one
percent (.5%).
"FLOATING PRIME RATE" shall mean, on any date, the rate of interest most
recently announced within Wells Fargo Bank, N.A. at its principal office in San
Francisco, California as its Prime Rate, with the understanding that such Prime
Rate is one of its base rates and serves as the basis upon which effective rates
of interest are calculated for those loans making reference thereto, and is
evidenced by the recording thereof after its announcement in such internal
publication or publications as Wells Fargo Bank, N.A. may designate.
"GENERALLY ACCEPTED ACCOUNTING PRINCIPLES" or "GAAP" shall mean those
generally accepted accounting principles and practices which are recognized as
such by the American Institute of Certified Public Accountants pursuant to its
Statement on Auditing Standards No. 69 and which are consistently applied for
all periods after the date hereof so as to properly reflect the financial
condition, and the results of operations and cash flows of Company on a
consolidated basis, except that any accounting principle or practice required to
be changed by the American Institute of Certified Public Accountants in order to
continue as a generally accepted accounting principle or practice may so be
changed.
"GOVERNMENTAL AUTHORITY" shall mean any government (or any political
subdivision or jurisdiction thereof), court, bureau, agency or other
governmental authority having jurisdiction over any of Borrowers or any of their
Subsidiaries or any of its or their business, operations or properties.
"GUARANTOR" shall mean any of the Guarantors.
"GUARANTORS" shall mean AmeriCredit Premium Finance, Inc., a Delaware
corporation, and ACF Investment Corp., a Delaware corporation, and any other
corporation which executes a Guaranty Agreement after the date of this Loan
Agreement.
"GUARANTY" of any Person shall mean any contract, agreement or
understanding of such Person pursuant to which such Person guarantees, or in
effect guarantees, any Indebtedness of any other Person (the "Primary Obligor")
in any manner, whether directly or indirectly, including without limitation
agreements:
(1) to purchase such Indebtedness or any property constituting security
therefor;
(2) to advance or supply funds (a) for the purchase or payment of such
Indebtedness, or (b) to maintain working capital or other balance
sheet
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conditions, or otherwise to advance or make available funds for
the purchase or payment of such Indebtedness;
(3) to purchase property, securities or services primarily for the purpose
of assuring the holder of such Indebtedness of the ability of the
Primary Obligor to make payment of the Indebtedness; or
(4) otherwise to assure the holder of the Indebtedness of the Primary
Obligor against loss in respect thereof; EXCEPT THAT "Guaranty" shall
not include the endorsement by Company or a Subsidiary in the ordinary
course of business of negotiable instruments or documents for deposit
or collection.
"GUARANTY AGREEMENT" shall mean the guaranty agreement executed by the
Guarantors, in the form of EXHIBIT C hereto, as the same may be amended or
supplemented from time to time.
"HAZARDOUS MATERIALS" shall mean those substances which are regulated by or
form the basis of liability under any Environmental Laws.
"INDEBTEDNESS" shall mean, with respect to any Person, all indebtedness,
obligations and liabilities of such Person, including without limitation:
(1) all "liabilities" which would be reflected on a balance
sheet of such Person, prepared in accordance with Generally
Accepted Accounting Principles;
(2) all obligations of such Person in respect of any Capital
Lease; and
(3) all obligations of such Person in respect of any Guaranty.
"INDIRECT LOAN" shall mean any Finance Contract or promissory note received
for or in connection with the financing of the sale of a motor vehicle by a
Dealer.
"INTERBANK OFFERED RATE" shall mean, with respect to each Interest Period,
the average of the rate of interest (rounded upwards, if necessary to the next
1/16th of 1%) at which deposits in an amount approximately equal to the
requested Borrowing and for the same term as the particular Interest Period are
offered to Agent in the London Interbank Eurodollar market for delivery on the
first day of the Interest Period as determined at 11:00 A.M. (London, England
time) two (2) Eurodollar Business Days prior thereto.
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"INTEREST COVERAGE RATIO" shall mean (a) the sum of EBIT and the
amortization of excess servicing receivables LESS the gain on sale of Finance
Contracts DIVIDED BY (b) total interest expense.
"INTEREST PERIOD" shall mean, with respect to a Eurodollar Advance, a
period commencing:
(i) on the borrowing date of such Eurodollar Advance made pursuant to
Section 2.02 of this Loan Agreement; or
(ii) on the Conversion Date pertaining to such Eurodollar Advance, if
such Eurodollar Advance is made pursuant to a conversion as
described in Section 2.02(c) hereof; or
(iii) on the date of borrowing specified in the Request for Borrowing in
the case of a rollover to a successive Interest Period,
and ending one (1), two (2) or three (3) months thereafter (in the case of a
Eurodollar Advance), as Borrowers shall elect in accordance with Section 2.02(c)
of this Loan Agreement; provided, that:
(A) any Interest Period which would otherwise end on a day which is not
a Eurodollar Business Day shall be extended to the next succeeding
Eurodollar Business Day UNLESS such Eurodollar Business Day falls in
another calendar month in which case such Interest Period shall end
on the next preceding Eurodollar Business Day;
(B) any Interest Period which begins on the last Eurodollar Business Day
of a calendar month (or on a day for which there is no numerically
corresponding day in the calendar month or at the end of such
Interest Period) shall, subject to clause (A) above, end on the last
Eurodollar Business Day of a calendar month; and
(C) if the Interest Period for any Eurodollar Advance would otherwise end
after the Termination Date such Interest Period shall end on the
Termination Date.
"INVESTMENT" shall mean any direct or indirect purchase or other
acquisition of, or a beneficial interest in, capital stock or other securities
or ownership interests of any other Person, or any direct or indirect loan,
advance (other than advances to employees for moving and travel expenses,
drawing accounts and similar expenditures in the ordinary course of business) or
capital contribution to or investment in any other Person, including without
limitation the incurrence or sufferance of Indebtedness or
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accounts receivable of any other Person which are not current assets or do
not arise from sales to that other Person in the ordinary course of business.
"LAW" shall mean all statutes, laws, ordinances, rules, regulations,
orders, writs, injunctions or decrees of any Tribunal.
"LIEN" shall mean any mortgage, pledge, security interest, encumbrance,
lien or charge of any kind, including without limitation, any agreement to give
any of the foregoing, any conditional sale or other title retention agreement,
any lease in the nature thereof, and the filing of or agreement to give any
financing statement or other similar form of public notice under the Laws of any
jurisdiction.
"LOAN DOCUMENTS" shall mean this Loan Agreement, the Notes, (including any
renewals, extensions and refundings thereof), the Security Agreement, the
Guaranty Agreement, and any agreements or documents (and with respect to this
Loan Agreement, and such other agreements and documents, any amendments or
supplements thereto or modifications thereof) executed or delivered pursuant to
the terms of this Loan Agreement.
"MAJORITY BANKS" shall mean, at any time, Banks holding Notes representing
at least sixty-six and 2/3 percent (66 2/3%) of the aggregate unpaid principal
amount of the aggregate Revolving Credit Loans or if no Revolving Credit Loans
are at the time outstanding, Banks having at least sixty-six and 2/3 percent (66
2/3%) of the Total Revolving Credit Commitment.
"MATERIAL ADVERSE EFFECT" shall mean any act, circumstance, or event that
(i) could have any adverse effect whatsoever upon the validity or enforceability
of the Loan Documents, (ii) causes or, with notice or lapse of time, or both,
could cause an Event of Default under this Loan Agreement, (iii) is or
reasonably could be expected to be material and adverse to the financial
condition or business operations of any of Borrowers or their Subsidiaries on a
Consolidated basis, or (iv) could reasonably be expected to impair the ability
of any of Borrowers to perform their respective obligations under the Loan
Documents in any material respect.
"MAXIMUM RATE" shall mean, on any day, the highest nonusurious rate of
interest (if any) permitted by applicable law on such day. Banks hereby notify
Borrowers that, and disclose to Borrowers that, for purposes of Tex. Rev. Civ.
Stat. Ann. Art. 5069-1.04, as it may from time to time be amended, the
"applicable rate ceiling" shall be the "indicated rate" ceiling from time to
time in effect as limited by Art. 5069-1.04(b); provided, however, that to the
extent permitted by applicable law, Banks reserve the right to change the
"applicable rate ceiling" from time to time by further notice and disclosure to
Borrowers; and, provided further, that the "highest nonusurious rate of interest
permitted by applicable law" for purposes of this Loan
-11-
Agreement and the Notes shall not be limited to the applicable rate ceiling
under Art. 5069-1.04 if federal laws or other state laws now or hereafter in
effect and applicable to this Loan Agreement and the Notes (and the interest
contracted for, charged and collected hereunder or thereunder) shall permit a
higher rate of interest.
"MORTGAGE SUBSIDIARY" shall mean any subsidiary of Borrowers (whether now
existing or hereafter formed or acquired) engaged in the business of making,
originating or taking assignments of residential mortgage loans to consumer
borrowers.
"NET AMOUNT" shall mean with respect to Eligible Finance Contracts, as of
any date, the outstanding face amount thereof as of such date, MINUS (1)
(without duplication) to the extent included in the face amount thereof,
unearned interest or finance charges with respect to future periods (or
reserves with respect to unearned interest or finance charges) and (2) the
aggregate amount by which the aggregate unpaid principal balance of Eligible
Finance Contracts which have been modified during the preceding three (3)
month period exceeds three and one-half percent (3.5%) of the aggregate
unpaid principal balance of all Eligible Finance Contracts.
"NET CREDIT LOSSES" shall mean, for any period, the actual aggregate amount
of principal of Indirect Loans charged off prior to the application of the
Dealer Discount or reserves during such period LESS the aggregate amount of
Recoveries on Indirect Loans during such period.
"NET INCOME" or "NET LOSS" shall mean, with respect to any period, the
consolidated net earnings or net loss, as the case may be, of Company and its
Subsidiaries for such period as determined in accordance with GAAP.
"NET INDIRECT LOANS" shall mean the aggregate amount of all Indirect Loans
LESS the amount of unearned finance charges.
"NOTES" shall mean the promissory notes executed by Borrowers and delivered
pursuant to the terms of this Loan Agreement, together with any renewals,
extensions or modifications thereof. "Note" shall mean any of the Notes.
"OBLIGATIONS" shall mean all present and future indebtedness, obligations,
and liabilities of Borrowers to Banks or any of Banks, and all renewals and
extensions thereof, or any part thereof, arising pursuant to this Loan Agreement
or represented by the Notes, and all interest accruing thereon, and reasonable
attorneys' fees incurred in the enforcement or collection thereof, regardless of
whether such indebtedness, obligations and liabilities are direct, indirect,
fixed, contingent, joint, several or joint and several; together with all
indebtedness, obligations and liabilities of Borrowers
-12-
evidenced or arising pursuant to any of the other Loan Documents, and all
renewals and extensions thereof, or part thereof.
"OBLIGOR" shall mean any one or more individuals (other than a Dealer) who
are liable in whole or in part on a Finance Contract (determined without regard
to limitations, if any, on recourse).
"OFFICER'S CERTIFICATE" shall mean a certificate signed in the name of the
Company by its Chief Executive Officer, President, one of its Executive Vice
Presidents, its Chief Financial Officer or its Controller.
"PAST DUE RATE" shall mean the lesser of (a) the Floating Base Rate in
effect from day-to-day, plus five percent (5.0%), or (b) the Maximum Rate.
"PBGC" shall mean the Pension Benefit Guaranty Corporation, and any
successor to all or any of the Pension Benefit Guaranty Corporation's functions
under ERISA.
"PERCENTAGE" shall mean, with respect to any Bank, such Bank's
proportionate share of the Total Revolving Credit Commitment, as set forth in
Section 2.01 opposite its name under the heading "Revolving Commitment
Percentage."
"PERMITTED LIENS" shall mean: (i) Liens on equipment and fixed assets,
including purchase money Liens, relating to or securing obligations in an
aggregate amount not to exceed ten million dollars ($10,000,000); (ii) pledges
or deposits made to secure payment of Worker's Compensation (or to participate
in any fund in connection with Worker's Compensation), unemployment insurance,
pensions or social security programs; (iii) Liens imposed by mandatory
provisions of law such as for materialmen's, mechanics, warehousemen's and other
like Liens arising in the ordinary course of business, securing Indebtedness
whose payment is not yet due unless the same are being contested in good faith
and for which adequate reserves have been provided; (iv) Liens for taxes,
assessments and governmental charges or levies imposed upon a Person or upon
such Person's income or profits or property, if the same are not yet due and
payable or if the same are being contested in good faith and as to which
adequate reserves have been provided; (v) Liens with respect to good faith
deposits in connection with tenders, leases, real estate bids or contracts
(other than contracts involving the borrowing of money unless such Liens are
otherwise Permitted Liens), pledges or deposits to secure public or statutory
obligations, deposits to secure (or in lieu of) surety, stay, appeal or customs
bonds and deposits to secure the payment of taxes, assessments, customs duties
or other similar charges; (vi) encumbrances consisting of zoning restrictions,
easements, or other restrictions on the use of real property, provided that such
do not impair the use of such property for the uses intended, and none of which
is violated by Company or any of its Subsidiaries in
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connection with existing or proposed structures or land use; and (vii) Liens
and encumbrances created and existing in connection with Securitizations and
any Additional Warehouse Facility.
"PERSON" shall mean and include an individual, partnership, joint venture,
corporation, trust, Tribunal, unincorporated organization or government or any
department, agency or political subdivision thereof.
"PLAN" shall mean an employee benefit plan or other plan maintained by
Company for employees of Company and any of its Subsidiaries and/or covered by
Title IV of ERISA, or subject to the minimum funding standards under Section 412
of the Internal Revenue Code of 1986, as amended.
"RATINGS" shall mean the rating assigned to the Indebtedness of Borrowers
to Banks by Standard and Poors, Moody Investor Service and Fitch Investor
Service.
"RECOVERIES" shall mean amounts realized on the sale of collateral securing
a Finance Contract, rebates on ancillary products and collections on charged-off
deficiencies and proceeds of insurance claims related to the collateral less
direct costs of repossession.
"REGULATION U" shall mean Regulation U promulgated by the Board of
Governors of the Federal Reserve System, 12 C.F.R. Part 221, or any other
regulation hereafter promulgated by said Board to replace the prior Regulation U
and having substantially the same function.
"REGULATION X" shall mean Regulation X promulgated by the Board of
Governors of the Federal Reserve System, 12 C.F.R. Part 224, or any other
regulation hereafter promulgated by said Board to replace the prior Regulation X
and having substantially the same function.
"REGULATORY DEFECT" shall mean (i) any failure of any of Borrowers or
any of the Guarantors to comply with any of the rules, regulations and other
requirements as contemplated in Section 7.11 hereof which would have a
Material Adverse Effect, and/or (ii) any unfavorable examination report shall
be received by any of Borrowers or any of the Guarantors from any
Governmental Authority regarding any of the businesses or activities in which
the Borrowers and Guarantors are engaged, if such report would have a
Material Adverse Effect.
"REPORTABLE EVENT" shall have the meaning assigned to that term in Title IV
of ERISA.
-14-
"REVOLVING CREDIT BORROWING BASE" shall mean, as of any date of
calculation, an amount equal to eighty percent (80%) of the Net Amount of
Eligible Finance Contracts pledged to the Agent for the ratable benefit of the
Banks pursuant to the Security Agreement; provided, however, if the ratio of the
aggregate Dealer Discount to Net Indirect Loans originated in a trailing three
(3) month period exceeds eight percent (8.0%), such Revolving Credit Borrowing
Base advance rate percentage of the Net Amount of Eligible Finance Contracts
shall be reduced by two percentage points for each full percentage point that
the ratio of the aggregate Dealer Discount to Net Indirect Loans originated in a
trailing three (3) month period, as of any date of calculation, exceeds eight
percent (8.0%).
"REVOLVING CREDIT LOANS" shall have the meaning assigned to it in Section
2.01 hereof.
"SECURITIZATION" shall mean a transaction wherein an identified pool of
Finance Contracts and related documents subject to a security interest in favor
of Banks are sold, pledged or conveyed by AmeriCredit Financial Services, Inc.,
or an Affiliate thereof, to a trustee, grantor trust or other special purpose
financing entity as collateral security for the issuance by AmeriCredit
Financial Services, Inc. or such Affiliate of notes, certificates or other
evidence of indebtedness.
"SECURITY AGREEMENT" shall mean the Restated Security Agreement, dated as
of October 4, 1996, delivered by Borrowers to the Agent for the benefit of the
Banks, granting the security interests in certain of the properties and assets
of each of Borrowers described therein, as amended or supplemented from time to
time.
"STAYED LOAN" shall mean a Finance Contract:
(i) as to which an Obligor obligated on such Finance Contract (any
such Obligor, together with its Subsidiaries, herein, collectively, the
"Applicable Obligor"), shall file a petition or seek relief under or take
advantage of any insolvency law; make an assignment for the benefit of its
creditors; commence a proceeding for the appointment of a receiver,
trustee, liquidator, custodian or conservator of itself or of the whole or
substantially all of its property; file or consent to a petition under any
chapter of the United States Bankruptcy Code, as amended (11 U.S.C. Section
101 ET SEQ.), or file a petition or seek relief under or take advantage of
any other similar law or statute of the United States of America, any state
thereof or any foreign country; or
(ii) as to which a court of competent jurisdiction shall enter an
order, judgment or decree appointing or authorizing a receiver, trustee,
liquidator, custodian or conservator of the Applicable Obligor or of the
whole or substantially all of its property, or enter an order for relief
against the
-15-
Applicable Obligor in any case commenced under any chapter of the
United States Bankruptcy Code, as amended, or grant relief under any
similar law or statute of the United States of America, any state thereof
or any foreign country; or as to which, under the provisions of any law
for the relief or aid of debtors, a court of competent jurisdiction or a
receiver, trustee, liquidator, custodian or conservator shall assume
custody or control or take possession of the Applicable Obligor or of the
whole or substantially all of its property; or as to which there is
commenced against the Applicable Obligor any proceeding for any of the
foregoing relief or as to which a petition is filed against the Applicable
Obligor under any chapter of the United States Bankruptcy Code, as amended,
or under any other similar law or statute of the United States of America
or any state thereof or any foreign country and such proceeding or petition
remains undismissed for a period of 60 days; or as to which the applicable
Obligor by any act indicates its consent to, approval of or acquiescence in
any such proceeding or petition;
PROVIDED, HOWEVER, that a Finance Contract shall cease to be a Stayed Loan
at such time as so long as (A) all principal, interest and other amounts
theretofore due and payable according to the terms of such Finance Contract
(as such terms have been approved, adjusted and/or confirmed pursuant to
court order or otherwise in any proceeding referred to in clause (i) or
(ii) of this definition) have been irrevocably paid to or collected or
received by Borrower and all such amounts thereafter due and payable shall
be paid to or collected or received by the Borrower when due (or within any
stated grace period) and (B) such Finance Contract shall be secured to the
same extent as before such Finance Contract first became a Stayed Loan and
no dispute regarding the existence, validity or priority of such security
shall be pending in any court or asserted in any pending appeal.
"SUBSIDIARY" shall mean, as to any particular parent corporation, any
corporation of which more than fifty percent (by number of votes) of the Voting
Stock shall be owned by such parent corporation and/or one or more corporations
which themselves have more than fifty percent (by number of votes) of their
Voting Stock owned by such parent corporation. As used herein, the term
"Subsidiary" shall also mean any "Subsidiary" of the Company.
"TAXES" shall mean all taxes, levies, assessments, fees, withholdings or
other charges at any time imposed by any Laws or Tribunal.
"TANGIBLE NET WORTH" shall mean, as of any date, the total shareholders'
equity (including capital stock both common and preferred, additional
paid-in capital and retained earnings after deducting treasury stock) which
would appear on a consolidated balance sheet of Company prepared as of such date
in accordance with
-16-
Generally Accepted Accounting Principles LESS intangible assets which would
appear on a consolidated balance sheet of Company prepared as of such date in
accordance with General Accepted Accounting Principles.
"TERMINATION DATE" shall mean October 3, 1997.
"UCC" shall mean, with respect to any jurisdiction, the Uniform Commercial
Code as then in effect in that jurisdiction. References to terms defined in the
UCC shall mean such terms in the UCC as in effect in such jurisdiction.
"VOTING STOCK" shall mean, with respect to any Subsidiary, any shares of
any class of stock of such Subsidiary having general voting power under ordinary
circumstances to elect a majority of the Board of Directors of such Subsidiary
irrespective of whether at the time stock of any other class or classes shall
have or might have voting power by reason of the happening of any contingency.
OTHER DEFINITIONAL PROVISIONS.
(a) All terms defined in this Loan Agreement shall have the
above-defined meanings when used in the Notes or any Loan Documents,
certificate, report or other document made or delivered pursuant to this Loan
Agreement, unless the context therein shall otherwise require.
(b) Defined terms used herein in the singular shall import the plural and
VICE VERSA.
(c) The words "hereof," "herein," "hereunder" and similar terms when used
in this Loan Agreement shall refer to this Loan Agreement as a whole and not to
any particular provision of this Loan Agreement.
(d) All financial and other accounting terms not otherwise defined herein
shall be defined and calculated in accordance with Generally Accepted Accounting
Principles consistently applied.
ARTICLE II
REVOLVING CREDIT LOANS
2.01. REVOLVING CREDIT COMMITMENT.
(a) REVOLVING LOAN COMMITMENTS. Subject to the terms and conditions of
this Loan Agreement and the Revolving Credit Borrowing Base limitation in
Section 2.01(b), each Bank severally agrees to extend to Borrowers, from the
date hereof
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through the Termination Date (the "Revolving Credit Period"), a revolving
line of credit which shall not exceed at any one time outstanding the amount
set forth opposite its name below (for each Bank, such amount is hereinafter
referred to as its "Commitment"):
COMMITMENT
PERCENTAGE
BANKS COMMITMENT (ROUNDED)
----- ------------ ----------
Wells Fargo Bank (Texas), $ 45,000,000 18.7500%
National Association
Bank One, Texas, N.A. 40,000,000 16.6666%
LaSalle National Bank 30,000,000 12.5000%
Texas Commerce Bank National $ 25,000,000 10.4166%
Association
The Sumitomo Bank, Limited 20,000,000 8.3333%
Harris Trust and Savings Bank 20,000,000 8.3333%
Comerica Bank-Texas 20,000,000 8.3333%
BankAmerica Business Credit, Inc. 25,000,000 10.4166%
The Bank of Nova Scotia $ 15,000,000 6.2500%
------------ --------
$240,000,000 100.0000%
------------ --------
------------ --------
No Bank shall be obligated to make any Advance under this Section 2.01 and
Section 2.02 if, immediately after giving effect thereto, the aggregate amount
of all indebtedness and obligations of Borrowers to such Bank under Section 2.01
and Section 2.02 exceeds the lesser of (a) such Bank's Commitment or (b) an
amount equal to such Bank's Percentage TIMES the Revolving Credit Borrowing Base
in effect at such time.
Within the limits of this Section 2.01, during the Revolving Credit Period,
Borrowers may borrow, prepay pursuant to Section 3.03 hereof and reborrow under
this Section 2.01; provided, however, the total number of unpaid Eurodollar
Borrowings shall not exceed five (5) at any time. Each Borrowing pursuant to
this Section 2.01 and Section 2.02 shall be funded ratably by Banks in
proportion to their respective Percentages. Each advance made by a Bank under
Section 2.01 and Section 2.02 is herein called an "Advance"; all Advances made
by a Bank hereunder are
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herein collectively called a "Revolving Credit Loan"; the aggregate unpaid
principal balance of all Advances made by Banks hereunder are herein
collectively called the "Revolving Credit Loans"; and the combined Advances
made by Banks on any given day are herein collectively called a "Borrowing".
The "Total Commitment" shall be two hundred forty million dollars
($240,000,000).
(b) BORROWING BASE LIMITATION. The maximum aggregate amount outstanding
at any time under the Revolving Credit Loans shall not exceed the Revolving
Credit Borrowing Base then in effect.
(c) BORROWING BASE DEFICIENCY. If the aggregate unpaid principal balance
of the Revolving Credit Loans shall at any time exceed the Revolving Credit
Borrowing Base then in effect (the "Borrowing Base Deficiency"), Borrowers shall
pay to Agent within one (1) Business Day of the date of the earlier of the most
recent Borrowing Base Certificate which discloses a Borrowing Base Deficiency or
the date of notification to Borrowers by Agent of the existence of a Borrowing
Base Deficiency an amount equal to such Borrowing Base Deficiency so that the
aggregate unpaid principal balance of the Revolving Credit Loans (after giving
effect to such payment) is not in excess of the Revolving Credit Borrowing Base
then in effect.
(d) LOAN ORIGINATION FEE. At the time of execution of this Agreement,
Borrowers shall pay to each Bank, including Agent, a loan origination fee in an
amount equal to the sum of (i) one sixteenth percent (.0625%) of each such
Bank's Revolving Commitment under the Prior Loan Agreement and (ii) one eighth
percent (.125%) of the positive difference between such Bank's Commitment under
this Loan Agreement and such Bank's Revolving Commitment under the Prior Loan
Agreement.
(e) UNUSED LINE FEE. In addition to the payments provided for in
Article III hereof, Borrowers shall pay to Agent, for the account of each Bank,
on the first day of each fiscal quarter of Company beginning January 1, 1997
during the period ending on the Termination Date a loan commitment fee at the
rate of one quarter of one percent (.25%) per annum (calculated on the basis of
a year consisting of 360 days) of the average daily amount of each such Bank's
Commitment which was unused during the immediately preceding fiscal quarter of
Company. Borrowers and Banks acknowledge and agree that the commitment fees
payable hereunder are bona fide commitment fees and are intended as reasonable
compensation to Banks for committing to make funds available to Borrowers as
described herein and for no other purpose.
2.02. MANNER OF BORROWING.
(a) REQUEST FOR BORROWING. Each request by Borrowers to Agent for a
Borrowing under Section 2.01 hereof (a "Request for Borrowing") shall be in
writing
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and specify the aggregate amount of such requested Borrowing, the requested
date of such Borrowing, and, when the Request for Borrowing specifies a
Eurodollar Borrowing, the Interest Period which shall be applicable thereto;
provided, however, that the aggregate number of unpaid Eurodollar Borrowings
shall not exceed five (5) at any time. Borrowers shall furnish to Agent the
Request for Borrowing by at least 11:00 a.m. (Fort Worth time) three (3)
Eurodollar Business Days prior to the requested Eurodollar Borrowing date
(which must be a Eurodollar Business Day) and by at least 11:00 a.m. (Fort
Worth time) on the requested borrowing date (which must be a Business Day)
for a Floating Base Advance. Any Request for Borrowing shall: (i) in the
case of a Floating Base Borrowing, be in the form attached hereto as EXHIBIT
"C," and (ii) in the case of a Eurodollar Borrowing, be in the form attached
hereto as EXHIBIT "D." Each Floating Base Borrowing shall be in an aggregate
principal amount of five hundred thousand dollars ($500,000.00) or any higher
integral multiple of one hundred thousand dollars ($100,000.00). Each
Eurodollar Borrowing shall be in an amount of at least one million dollars
($1,000,000.00) or any higher integral multiple of $1,000,000.00.
Prior to making a Request for Borrowing, Borrowers may (without specifying
whether the anticipated Borrowing shall be a Floating Base Borrowing or
Eurodollar Borrowing) request that Agent provide Borrowers with the most recent
Interbank Offered Rate available to Agent. Agent shall endeavor to provide such
quoted rates to Borrowers on the date of such request.
Each Request for Borrowing shall be irrevocable and binding on Borrowers
and, in respect of the Borrowing specified in such Request for Borrowing,
Borrowers shall indemnify each Bank against any cost, loss or expense incurred
by such Bank as a result of any failure to fulfill, on or before the date
specified for such Borrowing, the conditions to such Advance set forth herein,
including without limitation, any cost, loss or expense incurred by reason of
the liquidation or reemployment of deposits or other funds acquired by any Bank
to fund the Advance to be made by such Bank as part of such Borrowing when such
Advance, as a result of such failure, is not made on such date.
After receiving a Request for Borrowing in the manner provided herein,
Agent shall promptly notify each Bank by telephone (confirmed immediately by
telecopy, telex or cable), telecopy, telex or cable of the amount of the
Borrowing and such Bank's pro rata share of such Borrowing, the date on which
the Borrowing is to be made, the interest option selected and, if applicable,
the Interest Period selected.
(b) FUNDING. Each Bank shall, before 2:00 P.M. (Fort Worth time) on the
date of such Borrowing specified in the notice received from Agent pursuant to
Section 2.02(a), deposit such Bank's ratable portion of such Borrowing in
immediately available funds to Agent's account. Upon fulfillment of all
applicable conditions set
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forth herein and after receipt by Agent of such funds, Agent shall pay or
deliver such proceeds to or upon the order of Borrowers at the principal
office of Agent in immediately available funds. The failure of any Bank to
make any Advance required to be made by it hereunder shall not relieve any
other Bank of its obligation to make its Advance hereunder. If any Bank
shall fail to provide its ratable portion of such funds and if all conditions
to such Borrowing shall have been satisfied, the Agent will make available
such funds as shall have been received by it from the other Banks, in
accordance with this Section 2.02(b). Neither Agent nor any Bank shall be
responsible for the performance by any other Bank of its obligations
hereunder. In the event of any failure by a Bank to make an Advance required
hereunder, the other Banks may (but shall not be required to) purchase (on a
pro rata basis, according to their respective Percentages) such Bank's
Revolving Credit Note. Upon the failure of a Bank to make an Advance required
to be made by it hereunder, the Agent shall use good faith efforts to obtain
one or more banks, acceptable to Borrowers and Agent, to replace such Bank,
but neither the Agent nor any other Bank shall have any liability or
obligation whatsoever as a result of the failure to obtain a replacement for
such Bank.
Unless the Agent shall have received notice from a Bank prior to the date
of any Borrowing that such Bank will not make available to the Agent such Bank's
ratable portion of such Borrowing, the Agent may assume that such Bank has made
such portion available to the Agent on the date of such Borrowing in accordance
with Section 2.02(b) and the Agent may, in reliance upon such assumption, make
available to or on behalf of Borrowers on such date a corresponding amount. If
and to the extent such Bank shall not have so made such ratable portion
available to the Agent, such Bank severally agrees to repay to the Agent
forthwith on demand such corresponding amount together with interest thereon,
for each day from the date such amount is made available to or on behalf of
Borrowers until the date such amount is repaid to the Agent at the rate per
annum equal to the Federal Funds Rate. If such Bank shall repay to the Agent
such corresponding amount, such amount so repaid shall constitute such Bank's
Advance as part of such Borrowing for purposes of this Agreement.
(c) SELECTION OF INTEREST OPTION. Upon making a Request for Borrowing
under Section 2.02(a) hereof, Borrowers shall advise Agent as to whether the
Borrowing shall be (i) a Eurodollar Borrowing, in which case Borrowers shall
specify the applicable Interest Period therefor, or (ii) a Floating Base
Borrowing. At least three (3) Eurodollar Business Days prior to the termination
of each Interest Period with respect to a Eurodollar Borrowing, Borrowers shall
give Agent written notice (the "Rollover Notice") of the interest option which
shall be applicable to such Borrowing upon the expiration of such Interest
Period. If Borrowers shall specify that such Borrowing shall be a Eurodollar
Borrowing, such Rollover Notice shall also specify the length of the succeeding
Interest Period selected by Borrowers with respect to such Borrowing. Each
Rollover Notice shall be irrevocable and effective upon notification thereof to
Agent. If the required Rollover Notice shall not have been timely received by
Agent prior to
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the expiration of the then relevant Interest Period, then Borrowers shall be
deemed to have elected to have such Borrowing be a Floating Base Borrowing.
With respect to any Floating Base Borrowing, Borrowers shall have the right,
on any Eurodollar Business Day (a "Conversion Date") to convert such Floating
Base Borrowing to a Eurodollar Borrowing by giving Agent a Rollover Notice of
such selection at least three (3) Eurodollar Business Days prior to such
Conversion Date.
Notwithstanding anything to the contrary contained herein, Borrowers shall
have no right to request a Eurodollar Borrowing if (1) an Event of Default has
occurred and is continuing or (2) the interest rate applicable thereto under
Section 2.03 hereof would exceed the Maximum Rate in effect on the first day of
the Interest Period applicable to such Eurodollar Borrowing.
Each Rollover Notice shall be irrevocable and binding upon Borrowers, and
in respect of the Borrowing, conversion or extension specified in such Rollover
Notice, Borrowers shall indemnify and hold harmless each Bank against any cost,
loss or expense incurred by such Bank as a result of any failure to convert or
extend as specified in such Rollover Notice, including without limitation, any
loss, cost or expense incurred by reason of the liquidation or redeployment of
deposits or other funds required by any Bank to fund, convert or extend the
Advance specified in such Rollover Notice.
2.03. INTEREST RATE. The unpaid principal of each Floating Base Advance
shall bear interest from the date of advance until paid at a rate per annum
which shall from day to day, be equal to the lesser of: (a) the Floating Base
Rate or (b) the Maximum Rate. The unpaid principal of each Eurodollar Advance
shall bear interest from the date of Advance until paid at a rate per annum
which shall be equal to the lesser of (a) the sum of the Adjusted Interbank Rate
for the applicable Interest Period, plus the Applicable Margin or (b) the
Maximum Rate. All past due principal of, and to the extent permitted by
applicable law, interest on the Notes shall bear interest at the Past Due Rate.
Notwithstanding the foregoing, the unpaid principal balance of the Notes shall
bear interest as provided in Section 3.04(b) hereof, upon the occurrence of the
circumstances described in such section.
ARTICLE III
NOTES AND INTEREST RATE PAYMENTS
3.01. PROMISSORY NOTES. The Advances under Section 2.02(a) and Section
2.02(b) hereof by a Bank shall be evidenced by a promissory note (each a "Note"
and collectively, the "Notes") of Borrowers, which Note shall (i) be dated the
date hereof, (ii) be in the amount of such Bank's Commitment, (iii) be payable
to the order of such Bank at the office of Agent, (iv) bear interest in
accordance with Section 2.03 hereof,
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and (v) be in the form of EXHIBIT "A" attached hereto with blanks appropriately
completed in conformity herewith. Notwithstanding the principal amount of any
Bank's Note as stated on the face thereof, the amount of principal actually
owing on such Note at any given time shall be in the aggregate of all Advances
theretofore made to Borrowers hereunder, less all payments of principal
theretofore actually received hereunder by Bank. Each Bank is authorized, but
is not required, to endorse on the schedule attached to its Note appropriate
notations evidencing the date and amount of each Advance as well as the amount
of each payment made by Borrowers hereunder.
3.02. PRINCIPAL PAYMENTS ON REVOLVING CREDIT LOANS. Subject to Article X,
the unpaid principal amount of each Note, and all accrued but unpaid interest
thereon, shall be due and payable on the Termination Date.
3.03. PREPAYMENTS.
(a) OPTIONAL PREPAYMENTS. Borrowers may prepay the principal of any
Floating Base Advance upon one (1) Business Day's prior notice without premium
or penalty, and of any Eurodollar Advance upon three (3) Business Days prior
notice; provided, however, that (i) each prepayment of less than the full
outstanding principal balance of the Notes shall be in an amount equal to one
hundred thousand dollars ($100,000.00) or an integral multiple thereof, and
(ii) if Borrowers shall prepay the principal of any Eurodollar Advance on any
date other than the last day of the Interest Period applicable thereto,
Borrowers shall make the payments required by Section 4.05 hereof.
(b) GENERAL PREPAYMENT PROVISIONS. Any prepayment of a Note hereunder
shall be (i) made together with interest accrued (through the date of such
prepayment) on the principal amount prepaid, and (ii) applied first to accrued
interest and then to principal.
3.04. PAYMENT OF INTEREST ON THE NOTES.
(a) REVOLVING CREDIT NOTES. The interest on the unpaid principal amount
of each Floating Base Advance under each Note shall be payable monthly as it
accrues on the first Business Day of each month commencing November 1, 1996, and
on the Termination Date. Interest on the unpaid principal amount of each
Eurodollar Advance under each Note shall be payable on the last day of
applicable Interest Period. Should any installment of interest become due and
payable on a day other than a Business Day, the maturity thereof shall be
extended to the next succeeding Business Day.
(b) RECAPTURE RATE. If, on any interest payment date, Agent does not
receive interest (for the account of any Bank) on such Bank's Note computed (as
if no
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Maximum Rate limitations were applicable) at the applicable contract rate
described herein, because the applicable contract rate exceeds or has exceeded
the Maximum Rate, then Borrowers shall, upon the written demand of Agent or such
Bank, pay to such Bank, in addition to interest otherwise required hereunder, on
each interest payment date thereafter, the Excess Interest Amount (hereinafter
defined) calculated as of such later interest payment date; provided, however,
that in no event shall Borrowers be required to pay, for any appropriate
computation period, interest at a rate exceeding the Maximum Rate effective
during such period. The term "Excess Interest Amount" shall mean, on any date,
with respect to the Note of any Bank, the amount by which (a) the amount of all
interest which would have accrued prior to such date on the principal of such
Note (had the applicable contract rate(s) described herein at all times been in
effect, without limitation by the Maximum Rate) EXCEEDS (b) the aggregate amount
of interest actually paid to such Bank on such Note on or prior to such date.
3.05. CALCULATION OF INTEREST RATES. Interest on the unpaid principal of
each Eurodollar Advance shall be calculated on the basis of the actual days
elapsed in a year consisting of 360 days. Interest on the unpaid principal of
each Floating Base Advance shall be calculated on the basis of the actual days
elapsed in a year consisting of 360 days.
3.06. MANNER AND APPLICATION OF PAYMENTS. All payments of principal of,
and interest on, any Note shall be made by Borrowers to Agent before 11:00 a.m.
(Fort Worth time), in Federal or other immediately available funds at Agent's
principal banking office in Fort Worth, Texas. Should the principal of, or any
installment of the principal or interest on, any Note, become due and payable on
a day other than a Business Day or a Eurodollar Business Day, as the case may
be, the maturity thereof shall be extended to the next succeeding Business Day
or Eurodollar Business Day, as the case may be. Each payment received by the
Agent hereunder for the account of a Bank shall be promptly distributed by Agent
to such Bank. All payments made on any Note shall be credited, to the extent of
the amount thereof, in the following manner: (i) first, against the amount of
interest accrued and unpaid on the Note as of the date of such payment;
(ii) second, against all principal (if any) due and owing on the Note; (iii)
third, as a prepayment of outstanding Floating Base Advances under the Note; and
(iv) fourth, as a prepayment of outstanding Eurodollar Advances under the Note.
Subject to the foregoing, payments and prepayments of principal of the Notes
shall be applied to such outstanding Floating Base Advances and Eurodollar
Advances under the Notes as Borrowers shall select; provided, however, that
Borrowers shall select Floating Base Advances and Eurodollar Advances to be
repaid in a manner designated to minimize the Consequential Loss, if any,
resulting from such payments; and provided further that, if Borrowers shall fail
to select the Floating Base Advances and Eurodollar Advances to which such
payments are to be applied, or if an Event of
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Default has occurred and is continuing at the time of such payment, then
Agent shall apply the payment first to Floating Base Advances and then to
Eurodollar Advances.
3.07. PRO RATA TREATMENT. Each payment received by Agent hereunder for
account of Banks or any of them on the Notes shall be distributed to each Bank
entitled to share in such payment, PRO RATA in proportion to the then unpaid
principal balance of the Note of each Bank. Unless Agent shall have received
notice from Borrowers prior to the date on which any payment is due to Banks
hereunder that Borrowers will not make such payment in full, Agent may assume
that Borrowers have made such payment in full to Agent on such date and Agent
may, in reliance upon such assumption, cause to be distributed to each Bank on
such due date an amount equal to the amount then due such Bank. If and to the
extent Borrowers shall not have so made such payment in full to Agent, each Bank
shall repay to Agent forthwith on demand such amount distributed to such Bank
together with interest thereon, for each day from the date such amount is
distributed to such Bank until the date such Bank repays such amount to Agent,
at the Federal Funds Rate.
3.08. LENDING OFFICE. Each Bank may (a) designate its principal office or
a foreign branch, subsidiary or affiliate of such Bank as its lending office
(and the office to whose accounts payments are to be credited) for any
Eurodollar Advance, (b) designate its principal office or a domestic branch,
subsidiary or affiliate as its lending office (and the office to whose accounts
payments are to be credited) for any Floating Base Advance and (c) change its
lending offices from time to time by notice to Agent and Borrowers; provided,
however, no Bank shall designate a foreign branch without the consent of
Borrowers if such designation would subject interest payments hereunder to
withholding for Taxes. In such event, such Bank shall continue to hold the Note
evidencing its loans for the benefit and account of such foreign branch,
subsidiary or affiliate. Each Bank shall be entitled to fund all or any portion
of its Revolving Credit Loan in any manner that it deems appropriate, but for
the purposes of this Agreement such Bank shall, regardless of such Bank's actual
means of funding, be deemed to have funded its Loan in accordance with the
interest option from time to time selected by Borrowers for such Borrowing.
3.09. TAXES.
(a) Any and all payments by Borrowers hereunder or under the Notes shall
be made, in accordance with Section 3.06, free and clear of and without
deduction for any and all present or future Taxes, excluding, in the case of
each Bank and Agent, taxes imposed on its income, and franchise taxes imposed on
it, by the jurisdiction under the laws of which such Bank or Agent (as the case
may be) is organized or is or should be qualified to do business or any
political subdivision thereof and, in the case of each Bank Taxes imposed on its
income and franchise taxes imposed on it by the jurisdiction of such Bank's
lending office or any political subdivision thereof. If
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Borrowers shall be required by law to deduct any Taxes (i.e., Taxes for which
any Borrower is responsible under the preceding sentence) from or in respect
of any sum payable hereunder or under any Note to any Bank or Agent, (i) the
sum payable shall be increased as may be necessary so that after making all
required deductions (including deductions applicable to additional sums
payable under this Section 3.09) such Bank or Agent receives an amount equal
to the sum it would have received had no such deductions been made, (ii)
Borrowers shall make such deductions and (iii) Borrowers shall pay the full
amount deducted to the relevant taxation authority or other authority in
accordance with applicable law.
(b) In addition, Borrowers agree to pay any present or future stamp or
documentary taxes or any other excise or property taxes, charges or similar
levies which arise from any payment made hereunder or under the Loan Documents
from the execution, delivery, or registration of, or otherwise with respect to,
this Agreement or the other Loan Documents (hereinafter referred to as "Other
Taxes").
(c) Borrowers will indemnify each Bank and Agent for the full amount of
Taxes or Other Taxes (including, without limitation, any Taxes or Other Taxes
imposed by any jurisdiction on amounts payable under this Section 3.09) paid by
such Bank or Agent (as the case may be) or any liability (including penalties
and interest) arising therefrom or with respect thereto, whether or not such
Taxes or Other Taxes were correctly or legally asserted. This indemnification
shall be made within thirty (30) days from the date such Bank or Agent makes
written demand therefor.
(d) Within thirty (30) days after the date of any payment of Taxes,
Borrowers will furnish to Agent, at its address referred to in Section 13.02,
the original or a certified copy of a receipt evidencing payment thereof.
(e) Without prejudice to the survival of any other agreement of Company
hereunder, the agreements and obligations of Borrowers contained in this Section
3.09 shall survive the payment in full of the Obligation and the termination of
the Commitments.
(f) Each Bank agrees to use good faith efforts to carry out its
obligations under this Loan Agreement in such a way as to reduce the amount of
Taxes attributable to the Revolving Credit Loans, including the use of a
different lending office, as long as in the good faith opinion of such Bank such
actions would not have a material adverse effect upon it.
3.10. SHARING OF PAYMENTS. If any Bank shall obtain any payment (whether
voluntary, involuntary, through the exercise of any right of set-off, or
otherwise) on account of the Advances made by it in excess of its ratable share
of payments on account of the Advances made by all Banks, such Bank shall
forthwith purchase from
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the other Banks such participations in the Advances made by them as shall be
necessary to cause such purchasing Bank to share the excess payment ratably
with each of them, PROVIDED, HOWEVER, that if all or any portion of such
excess payment is thereafter recovered from such purchasing Bank, such
purchase from each Bank shall be rescinded and such other Banks shall repay
to the purchasing Bank the purchase price to the extent of such recovery
together with an amount equal to such other Bank's ratable share (according
to the proportion of (i) the amount of such Bank's required repayment, to
(ii) the total amount so recovered from the purchasing Bank) of any interest
or other amount paid or payable by the purchasing Bank in respect of the
total amount recovered. Borrowers agree that any Bank so purchasing a
participation from another Bank pursuant to this Section 3.10 may, to the
fullest extent permitted by law exercise all of its rights of payment
(including the right of set-off) with respect to such participation as fully
as if such Bank were the direct creditor of Borrowers in the amount of such
participation.
3.11. JOINT AND SEVERAL LIABILITY. The Borrowers shall be liable for all
amounts due to the Agent and to the Banks under this Loan Agreement, regardless
of which the Borrowers actually receives the Revolving Credit Loans or other
extensions of credit hereunder or the amount of such Revolving Credit Loans
received or the manner in which the Agent or the Banks account for such
Revolving Credit Loans or other extensions of credit on their books and records.
The Obligations with respect to Revolving Credit Loans made to a Borrower, and
the Obligations of a Borrower arising as a result of the joint and several
liability of the Borrower hereunder, with respect to Revolving Credit Loans made
to the other Borrowers, shall be separate and distinct obligations, but all such
Obligations shall be primary obligations of each of the Borrowers.
The Obligations arising as a result of the joint and several liability of
the Borrowers hereunder with respect to Revolving Credit Loans or other
extensions of credit made to the other Borrowers shall, to the fullest extent
permitted by law, be unconditional irrespective of (i) the validity or
enforceability, avoidance or subordination of the Obligations of the other
Borrowers or of any promissory note or other document evidencing all or any part
of the Obligations of the other Borrowers, (ii) the absence of any attempt to
collect the Obligations from the other Borrowers, any other guarantor, or any
other security therefor, or the absence of any other action to enforce the same,
(iii) the waiver, consent, extension, forbearance or granting of any indulgence
by the Agent and the Banks with respect to any provision of any instrument
evidencing the Obligations of the other Borrowers, or any part thereof, or any
other agreement now or hereafter executed by the other Borrowers and delivered
to the Agent and the Banks, (iv) the failure by the Agent and the Banks to take
any steps to perfect and maintain their security interest in, or to preserve
their rights to, any security or collateral for the Obligations of the other
Borrowers, (v) the Agent's or the Banks' election, in any proceeding instituted
under the Bankruptcy Code, of the
-27-
application of Section 1111(b)(2) of the Bankruptcy Code, (vi) any borrowing
or grant of a security interest by the other Borrowers, as debtor-in-possession
under Section 364 of the Bankruptcy Code, (vii) the disallowance of all or any
portion of the Agent's or the Banks' claim(s) for the repayment of the
Obligations of the other Borrowers under Section 502 of the Bankruptcy Code,
or (viii) any other circumstances which might constitute a legal or equitable
discharge or defense of a Guarantor or of the other Borrowers. With respect
to the Borrowers' Obligations arising as a result of the joint and several
liability of the Borrowers with respect to Revolving Credit Loans or other
extensions of credit made to the other Borrowers, each Borrower waives, until
the Obligations shall have been paid in full and the Loan Agreement shall
have been terminated, any right to enforce any right of subrogation or any
remedy which the Agent and the Banks now have or may have hereafter have
against the other Borrowers, any endorser or any guarantor of all or any part
of the Obligations, and any benefit of, and any right to participate in, any
security or collateral given to the Agent or to the Banks to secure payment
of the Obligations or any other liability of the other Borrowers to the Agent
and the Banks.
Upon any Event of Default, the Agent and the Banks may proceed directly and
at once, without notice, against any of the Borrowers to collect and recover the
full amount, or any portion of the Obligations, without first proceeding against
the other Borrowers or any other Person, or against any security or collateral
for the Obligations. The Borrowers consent and agree that the Agent and the
Banks shall be under no obligation to marshall any assets in favor of the
Borrowers or against or in payment of any or all of the Obligations.
ARTICLE IV
SPECIAL PROVISIONS FOR EURODOLLAR LOANS
4.01. INADEQUACY OF EURODOLLAR LOAN PRICING. If with respect to an
Interest Period for any Eurodollar Borrowing:
(i) Agent determines that, by reason of circumstances affecting the
Interbank Eurodollar market generally, deposits in Dollars (in the
applicable amounts) are not being offered to Banks in the Interbank
Eurodollar market for such Interest Period, or
(ii) Majority Banks advise Agent that the Interbank Offered Rate as
determined by Agent will not adequately and fairly reflect the cost to
such Banks of maintaining or funding the Eurodollar Borrowing for such
Interest Period,
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then Agent shall forthwith give notice thereof to Borrowers, whereupon, until
Agent notifies Borrowers that the circumstances giving rise to such suspension
no longer exist, (a) the obligation of Banks to make Eurodollar Advances shall
be suspended and (b) Borrowers shall either (i) repay in full the then
outstanding principal amount of the Eurodollar Advances, together with accrued
interest thereon on the last day of the then current Interest Period applicable
to such Eurodollar Advances, or (ii) convert such Eurodollar Advances to
Floating Base Advances in accordance with Section 2.02(c) of this Loan Agreement
on the last day of the then current Interest Period applicable to each such
Eurodollar Advance.
4.02. ILLEGALITY. If, after the date of this Loan Agreement, the adoption
of any applicable law, rule or regulation, or any change therein, or any change
in the interpretation or administration thereof by any Governmental Authority,
central bank or comparable agency charged with the interpretation or
administration thereof, or compliance by any Bank with any request or directive
(whether or not having the force of law) of any such authority, central bank or
comparable agency shall make it unlawful or impossible for any Bank to make,
maintain or fund its Eurodollar Advances, and such Bank shall so notify Agent,
Agent shall forthwith give notice thereof to Banks and Borrowers. Before giving
any notice pursuant to this Subsection, such Bank shall designate a different
Eurodollar lending office if such designation will avoid the need for giving
such notice and will not be materially disadvantageous to such Bank (as
determined in good faith by such Bank). Upon receipt of such notice, the
obligation of such Bank to make Eurodollar Advances shall be suspended until
receipt of notice from such Bank that such circumstances giving rise to such
suspension no longer exist and Borrowers shall either (i) repay in full the then
outstanding principal amount of the Eurodollar Advance of such Bank, together
with accrued interest thereon, or (ii) convert such Eurodollar Advance to a
Floating Base Advance, in either case on (a) the last day of the then current
Interest Period applicable to such Eurodollar Advance if such Bank may lawfully
continue to maintain and fund such Eurodollar Advance to such day or
(b) immediately if such Bank may not lawfully continue to fund and maintain such
Eurodollar Advance to such day.
4.03. INCREASED COSTS FOR EURODOLLAR LOANS. If any Governmental
Authority, central bank or other comparable authority, shall at any time
after the date of this Agreement impose, modify or deem applicable any
reserve (including, without limitation, any imposed by the Board of Governors
of the Federal Reserve System but excluding any reserve requirement included
in the Eurodollar Reserve Requirement of such Bank), special deposit or
similar requirement against assets of, deposits with or for the account of,
or credit extended by, any Bank, or shall impose on any Bank (or its
Eurodollar lending office) or the Interbank Eurodollar market any other
condition affecting its Eurodollar Advances, any Note, or its obligation to
make Eurodollar Advances; and the result of any of the foregoing is to
increase the cost to such Bank of making or maintaining its Eurodollar
Advances, or to reduce the amount of any sum
-29-
received or receivable by such Bank under this Agreement or the Note by an
amount reasonably deemed by such Bank to be material; then, within five (5)
days after demand by such Bank (with a copy to Agent), Borrowers shall pay to
Agent, for the account of such Bank, such additional amount or amounts as
will compensate such Bank for such increased cost or reduction. Each Bank
will promptly notify Borrowers and Agent of any event of which it has
knowledge, occurring after the date hereof, which will entitle such Bank to
compensation pursuant to this Section. A certificate of any Bank claiming
compensation under this Section and setting forth the additional amount or
amounts to be paid to it hereunder shall be conclusive in the absence of
manifest error. If any Bank demands compensation under this Section, then
Borrowers may at any time, upon at least five (5) Business Days' prior notice
to such Bank through Agent, either (i) repay in full the then outstanding
Eurodollar Advances of such Bank, together with accrued interest thereon to
the date of prepayment or (ii) convert such Eurodollar Advances to Floating
Base Advances in accordance with the provisions of this Loan Agreement;
provided, however, that Borrowers shall be liable for any Consequential Loss
arising pursuant to such actions. Each Bank agrees to use good faith efforts
to carry out its obligations under this Loan Agreement in such a way as to
reduce the amount of Taxes attributable to the Revolving Credit Loans,
including the use of a different lending office, as long as in the good faith
opinion of such Bank such actions would not have a material adverse effect
upon it.
4.04. EFFECT ON INTEREST OPTIONS. If notice has been given pursuant to
Section 4.02 or Section 4.03 requiring the Eurodollar Advances of any Bank to
be repaid or converted, then unless and until such Bank notifies Borrowers
that the circumstances giving rise to such repayment no longer apply, all
Advances shall be Floating Base Advances. If such Bank notifies Borrowers
that the circumstances giving rise to such repayment no longer apply,
Borrowers may thereafter select Advances to be Eurodollar Advances in
accordance with Section 2.02(c) of this Loan Agreement.
4.05. PAYMENTS NOT AT END OF INTEREST PERIOD. If Borrowers make any
payment of principal with respect to any Eurodollar Borrowing on any day other
than the last day of an Interest Period applicable to such Eurodollar Borrowing
(including payments made pursuant to Sections 4.02 or 4.03), then Borrowers
shall reimburse each Bank on demand the Consequential Loss incurred by it as a
result of the timing of such payment. A certificate of each Bank setting forth
the basis for the determination of the amount of Consequential Loss shall be
delivered to Borrowers through Agent and shall, in the absence of manifest
error, be conclusive and binding. Any conversion of a Eurodollar Borrowing to a
Floating Base Borrowing on any day other than the last day of the Interest
Period for such Eurodollar Borrowing shall be deemed a payment for purposes of
this Section.
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ARTICLE V
SECURITY
5.01 LIENS AND SECURITY INTERESTS. The Obligations and the Notes shall be
secured by a first priority security interest in all Finance Contracts
evidencing Indirect Loans (except Finance Contracts subject to a Securitization
or Additional Warehouse Facility) and proceeds of sale of collateral securing
Finance Contracts (except Finance Contracts subject to a Securitization or
Additional Credit Facility) and all promissory notes payable to any of
Borrowers.
5.02 GUARANTY DOCUMENTS. To secure the Obligations and the Notes, each of
the Guarantors shall execute and deliver to Agent the Guaranty Agreements.
ARTICLE VI
CONDITIONS PRECEDENT
6.01. INITIAL ADVANCES. The obligation of each Bank to make the Revolving
Credit Loan herein provided for and the initial Advances thereunder is subject
to the condition precedent that, on or before the date of such Advance, Agent
shall have received for each Bank the following, each dated the date of such
Advance, in form and substance satisfactory to Agent and such Bank:
(a) REVOLVING CREDIT NOTES. A duly executed promissory note, drawn to
the order of each Bank, in the form of EXHIBIT A attached hereto with
appropriate insertions.
(b) SECURITY AGREEMENT. Security Agreement executed by Borrowers
covering all now existing and hereafter arising Finance Contracts evidencing
Indirect Loans except Finance Contracts subject to a Securitization or an
Additional Warehouse Facility.
(c) FINANCING STATEMENTS. Financing statements executed by each of
Borrowers covering all now existing and hereafter arising Finance Contracts
evidencing Indirect Loans except Finance Contracts subject to a Securitization
or an Additional Warehouse Facility.
(d) GUARANTY AGREEMENT. The Guaranty Agreement in the form of EXHIBIT B
executed by AmeriCredit Premium Finance, Inc. and ACF Investment Corp.
(e) AGENT'S FEE AGREEMENT. Agent's fee agreement between Borrowers
and Agent and the agent's fee payable to Agent.
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(f) BORROWING BASE. A borrowing base certificate satisfying the
requirements of Section 8.01.
(g) ARTICLES OF INCORPORATION OF BORROWERS. A copy of the Articles of
Incorporation of each of Borrowers and all amendments thereto.
(h) BYLAWS OF BORROWERS. A certified copy of the bylaws of each of
Borrowers.
(i) RESOLUTIONS OF BORROWERS. Resolutions of each of Borrowers
authorizing the execution of this Loan Agreement duly adopted by the Board of
Directors of each of Borrowers and accompanied by a certificate of the Secretary
of Company stating that such resolutions are true and correct, have not been
altered or repealed and are in full force and effect.
(j) INCUMBENCY CERTIFICATE OF BORROWERS. An incumbency certificate with
respect to each of Borrowers executed by the appropriate officers of such
Borrower.
(k) CERTIFICATES OF EXISTENCE AND ACCOUNT STATUS FOR BORROWERS. A
current certificate of existence and good standing from the state of
incorporation of each of Borrowers and a current certificate of account status
from the Comptroller of Public Accounts of the State of Texas.
(l) AUTHORITY TO TRANSACT BUSINESS. Certificate evidencing the
authority of each of Borrowers to conduct or transact business in the State of
Texas and in all other states in which any of them conducts or transacts
business.
(m) ARTICLES OF INCORPORATION OF THE GUARANTORS. A copy of the Articles
of Incorporation of each of the Guarantors and all amendments thereto.
(n) BYLAWS OF EACH GUARANTOR. A certified copy of the bylaws of each of
the Guarantors.
(o) RESOLUTIONS OF EACH GUARANTOR. Resolutions of each one of the
Guarantors approving the execution of the Guaranty Agreement duly adopted by the
Board of Directors of each of such Guarantors and accompanied by a certificate
of the Secretary of each of such Guarantors stating that such resolutions are
true and correct, have not been altered or repealed and are in full force and
effect.
(p) INCUMBENCY CERTIFICATES OF GUARANTORS. An incumbency certificate
with respect to each Guarantor executed by the appropriate officers of each such
Guarantor.
(q) CERTIFICATES OF EXISTENCE AND ACCOUNT STATUS FOR EACH GUARANTOR. A
current certificate of existence from the state of incorporation of each
Guarantor and
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a certificate of account status from the Comptroller of Public Accounts of
the State of Texas for each Guarantor.
(r) AUTHORITY TO TRANSACT BUSINESS. Certificate evidencing the
authority of each Guarantor to conduct or transact business in each state in
which each such Guarantor conducts or transacts business.
(s) OPINION OF COUNSEL. An executed opinion of counsel to Borrowers and
each of the Guarantors.
(t) LOAN ORIGINATION FEES. The loan origination fees described in
Section 2.01(d).
(u) FINANCIAL STATEMENT. Audited financial statement of Borrower for
its fiscal year ended June 30, 1996, together with an unqualified opinion from
a recognized accounting firm of national standing.
(v) FIELD EXAMINATION. Field examination of collateral conducted by
Agent which is satisfactory to Agent and Banks.
6.02. ALL ADVANCES. The obligations of each Bank to make any Advance
under this Loan Agreement (including the initial Advance) shall be subject to
the following conditions precedent:
(a) NO DEFAULTS. As of the date of the making of such Advance, there
exists no Event of Default or event which with notice or lapse of time or both
could constitute an Event of Default.
(b) COMPLIANCE WITH LOAN AGREEMENT. Borrowers shall have performed and
complied in all material respects with all agreements and conditions contained
herein and in the Loan Documents which are required to be performed or complied
with by Borrowers before or at the date of such Advance or conversion.
(c) REQUEST FOR BORROWING. In the case of any Borrowing, Agent shall
have received from Borrowers a Request for Borrowing in the form of EXHIBIT "C"
or EXHIBIT "D" attached hereto, dated as of the date of such Advance and signed
by an authorized officer of the Borrowers, all of the statements of which shall
be true and correct, certifying that, as of the date thereof, (i) all of the
representations and warranties of Borrowers contained in this Loan Agreement and
each of the Loan Documents executed by Borrowers are true and correct, (ii) no
event has occurred and is continuing, or would result from the Advance, which
constitutes an Event of Default or which, with the lapse of time or giving of
notice or both, would constitute an Event of Default, and (iii) such other facts
as Agent may reasonably request.
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(d) NO MATERIAL ADVERSE CHANGE. As of the date of making such Advance, no
change has occurred in the business or financial condition of the Company and
its Subsidiaries on a Consolidated basis as reflected on the financial statement
of Company for its fiscal year ended June 30, 1996 which causes or could cause a
Material Adverse Effect.
(e) REPRESENTATIONS AND WARRANTIES. The representations and warranties
contained in Article VII (other than the representations and warranties
contained in Section 7.07) hereof shall be true in all material respects on the
date of making of such Advance, with the same force and effect as though made on
and as of that date.
(f) BANKRUPTCY PROCEEDINGS. No proceeding or case under the United States
Bankruptcy Code shall have been commenced by or against any of Borrowers or any
Guarantor.
(g) FINANCING STATEMENTS. If requested and prepared by Agent but not
less frequently than monthly, Borrowers shall have executed and delivered to
Agent financing statements covering all Finance Contracts evidencing Indirect
Loans except Finance Contracts subject to (i) a Securitization or (ii) an
Additional Warehouse Facility .
ARTICLE VII
REPRESENTATIONS AND WARRANTIES
To induce Banks to make the Revolving Credit Loans, Borrowers represent
and warrant to Banks that:
7.01. ORGANIZATION AND GOOD STANDING OF BORROWERS. Each of Borrowers is a
corporation duly organized and existing in good standing under the laws of the
state of its incorporation, is duly qualified as a foreign corporation and in
good standing in all states in which the failure to so qualify would have a
Material Adverse Effect and has the corporate power and authority to own its
properties and assets and to transact the business in which it is engaged and is
or will be qualified in those states wherein it will transact business in the
future and where the failure to so qualify would have a Material Adverse Effect.
7.02. ORGANIZATION AND GOOD STANDING OF THE GUARANTORS. Each of the
Guarantors is a corporation duly organized and existing in good standing under
the laws of the state of its incorporation, is duly qualified as a foreign
corporation and in good standing in all states in which the failure to so
qualify would have a Material Adverse Effect and has the corporate power and
authority to own its properties and
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assets and to transact the business in which it is engaged and is or will be
qualified in those states wherein it will transact business in the future and
where the failure to so qualify would have a Material Adverse Effect.
7.03. AUTHORIZATION AND POWER. Each of Borrowers has the corporate power
and requisite authority to execute, deliver and perform this Loan Agreement and
the other Loan Documents to be executed by such Borrower; each of Borrowers is
duly authorized to, and has taken all corporate action necessary to authorize
such Borrower to, execute, deliver and perform this Loan Agreement, the Notes
and such other Loan Documents and is and will continue to be duly authorized to
perform this Agreement, the Notes and such other Loan Documents. Each of the
Guarantors has the corporate power and requisite authority to execute, deliver
and perform the Guaranty Agreement.
7.04. NO CONFLICTS OR CONSENTS. Neither the execution and delivery of
this Loan Agreement, the Notes, the Guaranty Agreement or the other Loan
Documents, nor the consummation of any of the transactions herein or therein
contemplated, nor compliance with the terms and provisions hereof or with the
terms and provisions thereof, will contravene or materially conflict with any
provision of law, statute or regulation to which any of Borrowers or any of the
Guarantors is subject or any judgment, license, order or permit applicable to
any of Borrowers or any of the Guarantors, or any indenture, loan agreement,
mortgage, deed of trust, or other agreement or instrument to which any of
Borrowers or any of the Guarantors is a party or by which any of Borrowers or
any of the Guarantors may be bound, or to which any of Borrowers or any of the
Guarantors may be subject, or violate any provision of the Charter or Bylaws of
any of Borrowers or any of the Guarantors. No consent, approval, authorization
or order of any court or governmental authority or third party is required in
connection with the execution and delivery by any of Borrowers or any of the
Guarantors of the Loan Documents or to consummate the transactions contemplated
hereby or thereby.
7.05. ENFORCEABLE OBLIGATIONS. This Loan Agreement, the Notes, the
Security Agreement, the Guaranty Agreement and the other Loan Documents are the
legal and binding obligations of the corporation executing such Loan Documents,
enforceable in accordance with their respective terms, except as limited by
bankruptcy, insolvency or other laws of general application relating to the
enforcement of creditors' rights.
7.06. NO LIENS. Except for Permitted Liens, all of the properties and
assets of Borrowers and their Subsidiaries are free and clear of all mortgages,
liens, encumbrances and other adverse claims of any nature, and such corporation
has and will have good and marketable title to such properties and assets.
7.07. FINANCIAL CONDITION. Company has delivered to Agent copies of the
Consolidated balance sheet of Company and its Subsidiaries as of June 30, 1996,
and
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the related consolidated statements of income, shareholders' equity and cash
flows for the period ended such date; such financial statements are true and
correct in all material respects, fairly present the financial condition of
Company and its Subsidiaries as of such date and have been prepared in
accordance with Generally Accepted Accounting Principles applied on a basis
consistent with that of prior periods except for the exclusion of footnotes and
normal adjustments; as of the date hereof, there are no obligations, liabilities
or indebtedness (including contingent and indirect liabilities and obligations
or unusual forward or long-term commitments) of Company and its Subsidiaries
which are (separately or in the aggregate) material and are not reflected in
such financial statements or disclosed in writing to Agent; no changes having a
Material Adverse Effect have occurred in the financial condition or business of
any Borrower since June 30, 1996.
7.08. FULL DISCLOSURE. There is no material fact that Borrowers have not
disclosed to Agent and Banks which could have a Material Adverse Effect on the
properties, business, prospects or condition (financial or otherwise) of any of
Borrowers or any of the Guarantors. Neither the financial statements referred
to in Section 7.07 hereof, nor any certificate or statement delivered herewith
or heretofore by any of Borrowers to Banks in connection with negotiation of
this Loan Agreement, contains any untrue statement of a material fact or omits
to state any material fact necessary to keep the statements contained herein or
therein from being misleading in any material respect.
7.09. NO DEFAULT. No event has occurred and is continuing which
constitutes an Event of Default or which, with the lapse of time or giving of
notice or both, would constitute an Event of Default.
7.10. NO LITIGATION. Except as described in EXHIBIT E attached hereto,
there are no actions, suits or legal, equitable, arbitration or administrative
proceedings pending, or to the knowledge of Borrowers threatened, against any of
Borrowers or any of the Guarantors that would, if adversely determined, have a
Material Adverse Effect.
7.11. REGULATORY DEFECTS. As of the date hereof, Borrowers have advised
Banks, in writing, of all Regulatory Defects of which any of Borrowers has been
advised or has knowledge.
7.12. USE OF PROCEEDS; MARGIN STOCK. The proceeds of the Revolving Credit
Loans will be used by the Borrowers and the Guarantors solely for working
capital for and general corporate purposes of AmeriCredit Corp., AmeriCredit
Financial Services, Inc. and AmeriCredit Operating Co., Inc. None of such
proceeds will be used for the purpose of purchasing or carrying any "margin
stock" as defined in Regulation U or G of the Board of Governors of the Federal
Reserve System (12 C.F.R. Part 221 and 207), or for the purpose of reducing or
retiring any indebtedness which was originally
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incurred to purchase or carry a margin stock or for any other purpose which
might constitute this transaction a "purpose credit" within the meaning of
such Regulation U or G. No Borrower is engaged in the business of extending
credit for the purpose of purchasing or carrying margin stocks. No Borrower
nor any Person acting on behalf of Borrowers has taken or will take any
action which might cause the Notes or any of the other Loan Documents,
including this Loan Agreement, to violate Regulations U or G or any other
regulations of the Board of Governors of the Federal Reserve System or to
violate Section 7 of the Securities Exchange Act of 1934 or any rule or
regulation thereunder, in each case as now in effect or as the same may
hereinafter be in effect. None of Borrowers own any "margin stock" except
for that described in the financial statements referred to in Section 7.07
hereof and, as of the date hereof, the aggregate value of all "margin stock"
owned by Borrowers and their Subsidiaries does not exceed 25% of the
aggregate value of all of the assets of Company and its Subsidiaries.
7.13. NO FINANCING OF CORPORATE TAKEOVERS. Except as permitted by Section
9.07, no proceeds of the Revolving Credit Loans will be used to acquire any
security in any transaction which is subject to Section 13 or 14 of the
Securities Exchange Act of 1934, including particularly (but without limitation)
Sections 13(d) and 14(d) thereof.
7.14. TAXES. Except as previously disclosed to Bank, all tax returns
required to be filed by each of Borrowers and their Subsidiaries in any
jurisdiction have been filed or will be filed prior to the date on which the tax
payable with respect to such return will become delinquent and all taxes
(including mortgage recording taxes), assessments, fees and other governmental
charges upon any of Borrowers or any of their Subsidiaries or upon any of their
respective properties, income or franchises have been paid prior to the time
that such taxes could give rise to a lien thereon. To the best of each
Borrower's knowledge, there is no proposed tax assessment against any of
Borrowers except as disclosed to Banks.
7.15. PRINCIPAL OFFICE, ETC. The principal office, chief executive office
and principal place of business of each of Borrowers is at 200 Bailey Avenue,
Fort Worth, Tarrant County, Texas 76107, and Borrowers maintain their principal
records and books at such address.
7.16. ERISA. (a) No Reportable Event has occurred and is continuing with
respect to any Plan; (b) PBGC has not instituted proceedings to terminate any
Plan; (c) neither the Borrowers, any member of the Controlled Group, nor any
duly appointed administrator of a Plan (i) has incurred any liability to PBGC
with respect to any Plan other than for premiums not yet due or payable or (ii)
has instituted or intends to institute proceedings to terminate any Plan under
Section 4041 or 4041A of ERISA or withdraw from any Multi-Employer Pension Plan
(as that term is defined in Section 3(37) of ERISA); and (d) each Plan of
Company or its Subsidiaries has been
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maintained and funded in all material respects in accordance with its terms
and with all provisions of ERISA applicable thereto.
7.17. COMPLIANCE WITH LAW. Except as described on EXHIBIT F, Company and
each of its Subsidiaries are in compliance in all material respects with all
laws, rules, regulations, ordinances, orders and decrees which are applicable to
Company, any of its Subsidiaries or any of their respective properties or
business, the failure to comply with which could have a Material Adverse Effect,
including all Environmental Laws. Neither Company nor any Subsidiary has been
notified by any Governmental Authority that Company or any Subsidiary has failed
to comply with any such laws, rules, regulations, orders or decrees, the failure
to comply with which would result in a Material Adverse Effect, nor has Company
or any Subsidiary been notified of any Environmental Claim except as described
in EXHIBIT G.
7.18. GOVERNMENT REGULATION. No Borrower nor any of the Guarantors are
subject to regulation under the Public Utility Holding Company Act of 1935, the
Federal Power Act, the Investment Company Act of 1940, the Interstate Commerce
Act (as any of the preceding acts have been amended), or any other law (other
than Regulation X) which regulates the incurring by Company or any of its
Subsidiaries of indebtedness, including but not limited to laws relating to
common contract carriers or the sale of electricity, gas, steam, water, or other
public utility services.
7.19. INSIDER. Company is not, and no Person having "control" (as that
term is defined in 12 U.S.C. Section 375(b)(5) or in regulations promulgated
pursuant thereto) of Company is, an "executive officer", "director", or "person
who directly or indirectly or in concert with one or more persons owns,
controls, or has the power to vote more than 10% of any class of voting
securities" (as those terms are defined in 12 U.S.C. Section 375(b) or in
regulations promulgated pursuant thereto) of any Bank, of a bank holding company
of which any Bank is a subsidiary, or of any subsidiary of a bank holding
company of which Bank is a subsidiary, or of any bank at which Bank maintains a
correspondent account, or of any bank which maintains a correspondent account
with any Bank.
7.20. SUBSIDIARIES. Company directly owns all of the capital stock of
AmeriCredit Financial Services, Inc., AmeriCredit Operating Co., Inc.,
AmeriCredit Premium Finance, Inc. and ACF Investment Corp., in each case free
and clear from all liens, security interests, charges and encumbrances.
7.21. SOLVENCY. Excluding intercompany indebtedness, Company and each of
its Subsidiaries now have capital sufficient to carry on their businesses and
transactions and all business and transactions in which they are about to
engage, and for which they have projected, and are now solvent and able to pay
their debts as they mature and each of Company and its Subsidiaries now owns
property having a value,
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both at fair valuation and at present fair saleable value greater than the
amount required to pay its respective debts. Excluding intercompany indebtedness
and without giving effect to the Guaranty Agreement, no Guarantor is "insolvent"
on the date hereof (that is, the sum of such Guarantor's absolute and contingent
liabilities does not exceed the fair market value of such Guarantor's assets).
Each Guarantor has received or will receive good and fair consideration for its
liability and obligations incurred in connection with the Guaranty Agreement,
and the incurrence of its liability under the Guaranty Agreement in return for
such consideration may reasonably be expected to benefit each Guarantor,
directly or indirectly.
7.22. ENVIRONMENTAL MATTERS. Except as described in EXHIBIT "G" attached
hereto, none of the properties of Company or its Subsidiaries which are
presently owned has been used at any time during their ownership to generate,
manufacture, refine, transport, treat, store, handle, dispose, transfer,
produce, process, or in any manner deal with Hazardous Materials. Except as
described in EXHIBIT "G" attached hereto, there are no past, pending or, to the
best of Company's knowledge, threatened or potential Environmental Claims
against Company or any of its Subsidiaries or with respect to any properties
presently owned or controlled by Company or any of its Subsidiaries. Except as
described in EXHIBIT "G" attached hereto, there are no underground storage tanks
located on any of the properties presently owned or controlled by Company or any
of its Subsidiaries and, to Company's best knowledge, there never have been any
underground storage tanks located on any of the properties presently owned or
controlled by Company or any of its Subsidiaries, and the Company has received
no actual (as contrasted with constructive) notification of any Environmental
Claims relating to any property contiguous to any property owned or controlled
by Company or any of its Subsidiaries.
7.23. ENDORSEMENT OF INDIRECT LOANS. Borrowers have endorsed to Agent
all Finance Contracts evidencing Indirect Loans except Finance Contracts that
are subject to (a) a Securitization or (b) an Additional Warehouse Facility.
7.24. REPRESENTATIONS AND WARRANTIES. Each Request for Borrowing shall
constitute, without the necessity of specifically containing a written
statement, a representation and warranty by Borrowers that no Event of Default,
or any event which with the giving of notice or lapse of time or both would
constitute, mature into or become an Event of Default, shall have occurred and
be continuing and that all representations and warranties contained in this
ARTICLE VII (other than in Section 7.07) or in any other Loan Document are true
and correct at and as of the date the Advance is to be made.
7.25. SURVIVAL OF REPRESENTATIONS, ETC. All representations and
warranties made herein are true and correct when made by Borrowers and shall
survive delivery
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of the Notes and the Guaranty Agreement and the making of the Revolving
Credit Loan and any investigation at any time made by or on behalf of Agent
or any Bank shall not diminish Agent or such Bank's right to rely thereon.
ARTICLE VIII
AFFIRMATIVE COVENANTS
So long as Banks have any commitment to make Advances hereunder and until
payment in full of the Notes and the Obligation, Borrowers agree and covenant
that Borrowers will (unless Majority Banks shall otherwise consent in writing):
8.01. BORROWING BASE CERTIFICATE. Within two (2) weeks after the
fifteenth and last days of each month, Borrowers shall furnish to Agent a
certificate in form satisfactory to Agent executed by the chief financial
officer or controller of each of Borrowers reflecting in detail a computation
of the Revolving Credit Borrowing Base as of the fifteenth and last days of
each month.
8.02. COMPLIANCE CERTIFICATES. Within thirty (30) days after the end
of each calendar month hereafter, Borrowers shall deliver to Agent a
certificate executed by the chief financial officer or controller of each of
Borrowers stating that a review of its activities during such month has been
made under his supervision and that such Borrower has observed, performed and
fulfilled each and every obligation and covenant contained herein and is not
in default under any of the same or, if any such default shall have occurred,
specifying the nature and status thereof.
8.03. MONTHLY STATEMENTS. Within thirty (30) days after the end of
each calendar month, Company shall furnish to Agent copies of the
consolidated balance sheet of Company and its Subsidiaries as of the close of
such calendar month, and consolidated statements of income and of cash flow
of Company and its Subsidiaries for the portion of the year then ended
prepared in accordance with GAAP, in each case setting forth in comparative
form the figures for the preceding year.
8.04 QUARTERLY STATEMENTS. Within forty five (45) days after the end
of each fiscal quarter of Company, Company shall furnish to Agent copies of
the consolidated and consolidating balance sheet of Company and its
Subsidiaries as of the close of such fiscal quarter and consolidated and
consolidating statements of income and consolidated statements of cash flow
of Company and its Subsidiaries for the portion of the year then ended
prepared in accordance with GAAP.
8.05. AUDITED ANNUAL STATEMENTS. As soon as available and in any event
within one hundred twenty (120) days after the close of each fiscal year of
Company, Company shall furnish to each of Banks copies of the Consolidated
balance sheet of Company and its
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Subsidiaries as of the close of such fiscal year and Consolidated statements
of income, shareholders' equity and the statement of cash flow of Company and
its Subsidiaries for such fiscal year, in each case setting forth in comparative
form the figures for the preceding fiscal year and accompanied by a separate
opinion (which shall not be qualified by reason of any limitation imposed by
Company) of independent public accountants of recognized national standing
selected by Company and satisfactory to Agent, to the effect that such financial
statements have been prepared in accordance with Generally Accepted Accounting
Principles, and that the examination of such accounts in connection with such
financial statements has been made in accordance with generally accepted
auditing standards. In addition, as soon as available and in any event within
120 days after the close of each fiscal year, Company shall furnish to each of
Banks a report of independent public accountants of recognized standing selected
by Company and satisfactory to Agent containing a computation of the covenants
contained in Sections 9.01, 9.02, 9.04, 9.05, 9.06, 9.07, 9.10, 9.13 and 9.14,
all in reasonable detail.
8.06. SEC AND OTHER REPORTS. Promptly upon transmission thereof,
Company shall furnish Agent with copies of all financial statements, proxy
statements, notices and reports which Company sends to its public security
holders and copies of all registration statements (without exhibits) and all
reports which it files with the Securities and Exchange Commission (or any
governmental body or agency succeeding to the functions of the Securities and
Exchange Commission).
8.07. DELINQUENCIES. Within thirty (30) days after the end of each
month, Borrowers shall furnish to Agent (a) a summary report reflecting the
amount of all delinquencies and charge-offs for Net Indirect Loans, the
percentage of Net Indirect Loans which are delinquent, and the percentage of
Net Indirect Loans which have been charged off and (b) a summary report
reflecting the amount of all Net Indirect Loans that are past due by cycle.
8.08. LIST OF INDIRECT LOANS. Within thirty (30) days after the end
of each calendar month, Borrowers shall furnish to Agent two (2) copies of a
list of all Finance Contracts and promissory notes evidencing Net Indirect
Loans (other than Finance Contracts subject to a Securitization or subject to
an Additional Warehouse Facility) that reflects the name, address and account
number of each Obligor and the unpaid principal balance of each Finance
Contract and promissory note as of the end of such preceding calendar month.
8.09. CHARGE OFF VINTAGE REPORTS. Within thirty (30) days after the
end of each month, Borrowers shall furnish Agent with a delinquency and
charge-off vintage report reflecting the percentage of Net Indirect Loans
which are delinquent and which have been charged off by month of origination
accompanied by the supporting data.
8.10. ROLLFORWARD REPORT. Within thirty (30) days after the end of
each month, Borrowers shall furnish to Agent a notes receivable rollforward
report reflecting all originations, collections, charge-offs, pay-offs and
ending balances for Net Indirect Loans.
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8.11. REPOSSESSIONS. Within thirty (30) days after the end of each
month, Borrowers shall furnish to Agent a summary report reflecting the
aggregate principal amount of Finance Contracts in respect of which the
related motor vehicle has been repossessed during the reporting period,
excluding Finance Contracts which have been charged off.
8.12. MODIFIED CONTRACTS. Within thirty (30) days after the end of
each month, Borrowers shall furnish to Agent a summary report reflecting the
principal amount of all Finance Contracts that have been modified in any way
during the reporting period which affects the contractual timing or amount of
any installment payment due under such Finance Contract.
8.13. MATERIAL EVENTS. Each of the Borrowers shall promptly notify
Agent of (i) any Material Adverse Effect in its financial condition or
business; (ii) any material default under any material agreement, contract or
other instrument to which such Borrower is a party or by which any of its
properties are bound, or any acceleration of any maturity of any Indebtedness
owing by such Borrower, (iii) any material adverse claim against or affecting
such Borrower or any of its properties which might or could reasonably be
expected to have a Material Adverse Effect; (iv) any litigation, or any claim
or controversy which might become the subject of litigation, against such
Borrower or affecting any of such Borrower's property, if such litigation or
potential litigation might be expected to have or could reasonably be
expected to have, in the event of any unfavorable outcome, a Material Adverse
Effect or might or could reasonably be expected to cause an Event of Default;
(v) any material change in underwriting standards or criteria and (vi) a
change in the executive officers of any of Borrowers.
8.14. INSURANCE. Each Borrower shall maintain on its properties
insurance of responsible and reputable companies in such amounts and covering
such risks as is prudent and is usually carried by companies engaged in
businesses similar to that of such Borrower; each Borrower shall furnish
Agent, on request, with certified copies of insurance policies or other
appropriate evidence of compliance with the foregoing covenant.
8.15. LICENSES. Borrowers shall preserve and maintain all material
licenses, privileges, franchises, certificates and the like necessary for the
operation of their respective business.
8.16. COMPLIANCE WITH LOAN DOCUMENTS. Borrowers will comply in all
material respects with any and all covenants and provisions of this Loan
Agreement, the Notes and all other of the Loan Documents.
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8.17. COMPLIANCE WITH MATERIAL AGREEMENTS. Borrowers will comply in
all material respects with all material agreements, indentures, mortgages or
documents binding on it or affecting their properties or business where the
failure to so comply would have a Material Adverse Effect.
8.18. OPERATIONS AND PROPERTIES. Borrowers will act prudently and in
accordance with customary industry standards in managing or operating its
assets, properties, business and investments; Borrowers will keep in good
working order and condition, ordinary wear and tear excepted, all of their
respective assets and properties which are necessary to the conduct of its
business except for worn out or obsolete assets which have been replaced.
8.19. BOOKS AND RECORDS; ACCESS. Upon prior written notice, Borrowers
will give any representative of any Bank access during all business hours to,
and permit such representative to examine, copy or make excerpts from, any
and all books, records and documents in the possession of Borrowers and
relating to its affairs, and to inspect any of the properties of Borrowers
and discuss their respective affairs with their respective officers,
directors, employees and representatives. Borrowers will maintain complete
and accurate books and records of its transactions in accordance with good
accounting practices.
8.20. COMPLIANCE WITH LAW. Company will comply with and will cause
each Subsidiary to comply with all applicable laws, rules, regulations, and
all orders of any Governmental Authority applicable to it or any of its
property, business operations or transactions, a breach of which could have a
Material Adverse Effect on Company's or any Subsidiary's financial condition,
business or credit.
8.21. ERISA COMPLIANCE. Each Borrower shall (a) at all times, make
prompt payment of all contributions required under all Plans and required to
meet the minimum funding standard set forth in ERISA with respect to its
Plans; (b) notify each Bank immediately of any fact, including, but not
limited to, any Reportable Event arising in connection with any of its Plans,
which might constitute grounds for termination thereof by the PBGC or for the
appointment by the appropriate United States District Court of a trustee to
administer such Plan, together with a statement, if requested by a Bank, as
to the reason therefor and the action, if any, proposed to be taken with
respect thereto; and (c) furnish to each Bank, upon its request, such
additional information concerning any of its Plans as may be reasonably
requested.
8.22. ADDITIONAL INFORMATION. Borrowers shall promptly furnish to
Agent, at Agent's request, such additional financial or other information
concerning assets, liabilities, operations and transactions of Borrowers as
Agent may from time to time reasonably request.
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8.23. PRINCIPAL DEPOSITORY. Borrowers shall use Agent as their
principal depository; Borrowers shall use the lockbox services of Agent.
8.24. GUARANTY OF SUBSIDIARY CORPORATIONS. Borrowers shall cause each
Subsidiary formed or acquired after the date of this Agreement to execute a
Guaranty of the Notes within ten (10) days after the date of formation or
acquisition of such Subsidiary except (i) any special purpose Subsidiary
formed solely for the purpose of consummating a Securitization and (ii) the
Mortgage Subsidiary.
8.25. FINANCING STATEMENTS. If requested by Agent, each of Borrowers
shall execute and deliver to Agent new financing statements in form
satisfactory to Agent at the time it commences conducting business in any
state in which it has not previously conducted business.
8.26. FIELD TESTS. Borrowers shall from time to time permit Banks to
conduct field examinations at the expense of Banks. Borrowers shall permit
Agent to conduct a field examination annually at the expense of Borrowers.
8.27. DELIVERY OF INDIRECT LOANS. At the request of Agent or Majority
Banks after the occurrence of an Event of Default, Borrowers shall promptly
deliver to Agent all Finance Contracts and promissory notes evidencing
Indirect Loans duly endorsed or assigned to Agent other than Indirect Loans
subject to a Securitization or an Additional Warehouse Facility.
8.28. INSPECTION OF INDIRECT LOANS. Borrowers shall permit Agent and
its officers and representatives to inspect all Finance Contracts (except
Finance Contracts subject to a Securitization or an Additional Warehouse
Facility) and promissory notes evidencing Indirect Loans once each month
during normal business hours.
8.29 CAPITAL ADEQUACY. If any Bank shall have determined that the
adoption of any applicable law, rule or regulation regarding capital
adequacy, or any change therein, or any change in the interpretation or
administration thereof by any governmental authority, central bank or
comparable agency charged with the interpretation or administration thereof,
or compliance by such Bank with any request or directive regarding capital
adequacy (whether or not having the force of law) of any such authority,
central bank or comparable agency, has or would have the affect of reducing
the rate of return on such Bank's capital as a consequence of its obligations
hereunder to a level below that which such Bank could have achieved but for
such adoption, change or compliance by an amount deemed by such Bank to be
material, then from time-to-time, within 15 days after demand by such Bank,
the Borrowers shall pay, without duplication, to such Bank such additional
amount or amounts as will compensate such Bank for such reduction. Said
demand shall include in reasonable detail the amount of and the cause of such
compensation demand.
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8.30. FURTHER ASSURANCES. Upon request of the Agent, Borrowers
agree to promptly cure any defects in the creation, issuance, execution and
delivery of this Loan Agreement or in the Loan Documents. Each of Borrowers,
at their expense, will further promptly execute and deliver to Agent upon
request all such other and further documents, agreements and instruments in
compliance with or accomplishment of the covenants and agreements of
Borrowers hereunder, or to further evidence and more fully describe the
obligations of Borrowers hereunder, or to correct any omissions herein, or to
more fully state the obligations set out herein.
ARTICLE IX
NEGATIVE COVENANTS
So long as Banks have any commitment to make Advances hereunder, and
until full payment of the Notes and the performance of the Obligation,
Borrowers covenant and agree that neither Borrowers nor any of their
respective Subsidiaries will, unless Majority Banks otherwise consent in
writing:
9.01. RATIO OF ADJUSTED INDEBTEDNESS TO TANGIBLE NET WORTH. Permit
the ratio of the total amount of the Adjusted Indebtedness of Company and its
Subsidiaries to the Tangible Net Worth of Company and its Subsidiaries on a
Consolidated basis to be more than 2.5 to 1.0 at any time; or
9.02. MINIMUM INTEREST COVERAGE RATIO. Permit the Interest Coverage
Ratio computed on a trailing twelve (12) month basis to be less than 2.2 to
1.0 at any time; or
9.03. LOSS. Incur any net loss on a consolidated basis determined
in accordance with GAAP during any trailing three (3) month period; or
9.04. LIMITATION ON ADDITIONAL INDEBTEDNESS. Incur or assume or
permit any of its Subsidiaries to incur or assume any Indebtedness, except
for (i) the indebtedness evidenced by the Notes; (ii) trade debt incurred in
the ordinary course of business; (iii) up to but not exceeding ten million
dollars ($10,000,000) in the aggregate at any time; (iv) indebtedness arising
from Securitizations; (v) indebtedness arising under an Additional Warehouse
Facility, (vi) indebtedness of the Mortgage Subsidiary and (vii) Guarantees
by any of Borrowers or the Guarantors with respect to the Mortgage
Subsidiary; or
9.05. RESTRICTIONS ON DIVIDENDS ON CAPITAL STOCK. Pay any
dividends or make any distributions on or with respect to its outstanding
capital stock or purchase, redeem or purchase any of its capital stock in
excess of the sum of fifteen million dollars ($15,000,000) and the aggregate
amount of new equity received by Company
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as a result of the sale of capital stock of Company or the exercise of
options relating to the capital stock of Company during any trailing twelve
(12) months; or
9.06. LOSSES TO NET INDIRECT LOANS. Permit the ratio of Net Credit
Losses during the prior 12 months to the sum of month end balances of Net
Indirect Loans over the prior 13 months DIVIDED BY 13 to be greater than .10
to 1.0 at any time; or
9.07. DELINQUENT LOANS TO NET INDIRECT LOANS. Permit the ratio of
Delinquent Loans to Net Indirect Loans to be greater than .06 to 1.0 at any
time; or
9.08. LIQUIDATION; MERGERS. Liquidate, dissolve or reorganize; or
merge with any other corporation or entity unless Company or one of its
Subsidiaries is the survivor of such merger; or make or permit any of its
Subsidiaries to make any other substantial change in its capitalization or
its business; or
9.09. ENTER INTO TRANSACTION WITH AFFILIATEs. Enter into, or be a
party to, any transaction with any Affiliate, Subsidiary or shareholder of
Company, except (i) as permitted by this Agreement, (ii) in the ordinary
course of and pursuant to the reasonable requirements of Company's business
and upon fair and reasonable terms which are fully disclosed to Agent or
(iii) sales of equity securities to its current shareholders other than
management in connection with future financing upon fair and reasonable terms
which are fully disclosed to Agent which are no less favorable to Company
than would be in an arm's length transaction with Person's not an Affiliate;
or
9.10. BUSINESS ACQUISITIONS AND INVESTMENTS. Purchase or otherwise
acquire by merger or otherwise all or substantially all of the assets of any
other corporation, partnership or person or make Investments in Subsidiaries
in excess of twenty five million dollars ($25,000,000) in the aggregate; or
9.11. NEGATIVE PLEDGE. Create or suffer to exist any mortgage,
pledge, security interest, conditional sale or other title retention
agreement, charge, encumbrance or other Lien (whether such interest is based
on common law, statute, other law or contract) upon any of its property or
assets, now owned or hereafter acquired, except for Permitted Liens and Liens
in favor of Agent and Liens granted by the Mortgage Subsidiary; or
9.12. NO GRANT OF NEGATIVE PLEDGE. Agree with any Person not to
create or suffer to exist any mortgage, pledge, security interest or
encumbrance or Lien upon any of its property or assets now owned or hereafter
acquired except with respect to the property or assets of the Mortgage
Subsidiary; or
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9.13. SALE OF ASSETS. Sell or permit any Subsidiary other than the
Mortgage Subsidiary to sell any of its material assets except in the ordinary
course of business; or
9.14. GUARANTIES. Permit the aggregate amount of the indebtedness
and obligations of the Mortgage Subsidiary guaranteed by Borrowers or
Guarantors to exceed seventy five million dollars ($75,000,000) in the
aggregate at any one time.
9.15. CHANGE IN BUSINESS. Borrowers shall not, and shall not permit
any of its Subsidiaries to, directly or indirectly, engage in any business
other than those in which each of them is presently engaged except the
mortgage business to be engaged in by the Mortgage Subsidiary.
If any action or failure to act by Company or any Subsidiary violates any
covenant or obligations of Borrowers contained herein, then such violation
shall not be excused by the fact that such action or failure to act would
otherwise be required or permitted by any covenant (or exception to any
covenant) other than the covenant violated.
ARTICLE X
EVENTS OF DEFAULT; REMEDIES UPON EVENT OF DEFAULT
10.01. EVENTS OF DEFAULT. An "Event of Default" shall exist if any one
or more of the following events (herein collectively called "Events of
Default") shall occur and be continuing:
(a) Borrowers shall fail to pay when due any principal of, or interest
on any Note, or any other fee or payment due hereunder or under any of the
Loan Documents; or
(b) Any representation or warranty made under this Loan Agreement, or
any of the Loan Documents or in any certificate or statement furnished to or
made to Banks pursuant hereto or in connection herewith shall prove to be
untrue or inaccurate in any material respect as of the date on which such
representation or warranty is made; or
(c) Failure of any of Borrowers to observe, keep and perform any of the
covenants or agreements in Sections 8.01, 8.02, 8.03, 8.04, 8.05, 8.06, 8.07,
8.08, 8.09, 8.10, 8.11 or 8.12 and the continuance of such failure for a
period of at least ten (10) days after receipt of written notice from Agent
to Borrowers specifying such failure; or
(d) Failure or refusal of any of Borrowers to observe, keep and perform
any of the covenants, agreements and obligations hereunder or any of the Loan
Documents (except the covenants in Sections 8.01, 8.02, 8.03, 8.04, 8.05,
8.06, 8.07, 8.08, 8.09, 8.10,
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8.11 and 8.12) and the continuance of such failure or refusal for a period of
twenty (20) days after receipt of written notice from Agent to Borrowers
specifying such failure; or
(e) Any of Borrowers or any of their respective Subsidiaries shall (i)
apply for or consent to the appointment of a receiver, custodian, trustee,
intervenor or liquidator of all or a substantial part of its assets, (ii)
voluntarily become the subject of a bankruptcy, reorganization or insolvency
proceeding or be insolvent or admit in writing that it is unable to pay its
debts as they become due, (iii) make a general assignment for the benefit of
creditors, (iv) file a petition or answer seeking reorganization or an
arrangement with creditors or to take advantage of any bankruptcy or
insolvency laws, (v) file an answer admitting the material allegations of, or
consent to, or default in answering, a petition filed against it in any
bankruptcy, reorganization or insolvency proceeding, or (vi) become the
subject of an order for relief under any bankruptcy, reorganization or
insolvency proceeding; or
(f) An order, judgment or decree shall be entered by any court of
competent jurisdiction or other competent authority approving a petition
appointing a receiver, custodian, trustee, intervenor or liquidator of any of
Borrowers or any of their Subsidiaries or of all or substantially all of
their respective assets, and such order, judgment or decree shall continue
unstayed and in effect for a period of sixty (60) days; or a complaint or
petition shall be filed against any of Borrowers or any of their respective
Subsidiaries seeking or instituting a bankruptcy, insolvency, reorganization,
rehabilitation or receivership proceeding of any of Borrowers or any of their
respective Subsidiaries, and such petition or complaint shall not have been
dismissed within sixty (60) days; or
(g) Any final judgment(s) for the payment of money in excess of the sum
of five hundred thousand dollars ($500,000) in the aggregate shall be
rendered against any of Borrowers or any of their respective Subsidiaries and
such judgment or judgments shall not be satisfied or discharged at least ten
(10) days prior to the date on which any of its assets could be lawfully sold
to satisfy such judgment; or
(h) There shall occur any change in the condition (financial or
otherwise) of any of Borrowers or any of their respective Subsidiaries which,
in the reasonable opinion of Majority Banks, has a Material Adverse Effect; or
(i) The occurrence of a default or an event of default under any
Securitization, Additional Warehouse Facility or similar arrangement to which
any of Borrowers or any of their respective Subsidiaries is a party; or
(j) Default shall occur under any Indebtedness for borrowed money
issued, assumed or guaranteed by any of Borrowers or any of their respective
Subsidiaries or under any indenture, agreement or other instrument under
which the same may be
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issued and such default shall continue for a period of time sufficient to
permit the acceleration of maturity of such Indebtedness or any such
Indebtedness shall not be paid when due.
10.02. REMEDIES UPON EVENT OF DEFAULT. If an Event of Default shall
have occurred and be continuing, then Agent shall, at the request of Majority
Banks, exercise any one or more of the following rights and remedies, and any
other remedies in any of the Loan Documents, as Majority Banks in their sole
discretion, may deem necessary or appropriate: (i) declare the principal of,
and all interest then accrued on, the Notes and any other liabilities
hereunder to be forthwith due and payable, whereupon the same shall forthwith
become due and payable without presentment, demand, protest, notice of
default, notice of acceleration or notice of intention to accelerate or other
notice of any kind, all of which Borrowers hereby expressly waive, anything
contained herein or in the Notes to the contrary notwithstanding, (ii) refuse
to make any additional Advances under the Notes, (iii) reduce any claim to
judgment, (iv) apply to the payment of the Notes all collections received in
the lockbox with Agent to which payments on the Eligible Finance Contracts
pledged to Agent and Banks are sent and/or (v) without notice of default or
demand, pursue and enforce any of Banks' rights and remedies under the Loan
Documents or otherwise provided under or pursuant to any applicable law or
agreement. Notwithstanding the foregoing, in the event of the occurrence of
an Event of Default under Section 10.01(e) or Section 10.01(f), the entire
amount of principal of, and interest then accrued on, the Notes shall
automatically be immediately due and payable, without demand, notice of
default, notice of acceleration or notice of any kind, all of which Borrowers
hereby expressly waive and the Revolving Commitment of each of the Banks
shall terminate.
Borrowers hereby designate and appoint Agent as its attorney-in-fact to
endorse to Agent for the benefit of Banks after the occurrence of an Event of
Default all checks deposited in the lockbox with Agent to which payments on
the Eligible Finance Contracts pledged to Agent and Banks are sent. This
power of attorney is irrevocable and is coupled with an interest.
10.03. PERFORMANCE BY BANKS. Should any of Borrowers fail to perform
in any material respect any covenant, duty or agreement contained herein or
in any of the Loan Documents, Agent or Banks may, at their option, perform
or attempt to perform such covenant, duty or agreement on behalf of the
Borrowers following written notice to Borrowers of such intention to perform.
In such event, Borrowers shall, at the request of Agent or Banks, promptly
pay any amount reasonably expended by Agent or Banks in performance or
attempted performance to Agent at its principal office in Fort Worth, Texas,
together with interest thereon at the Past Due Rate from the date of such
expenditure until paid. Notwithstanding the foregoing, it is expressly
understood that neither Banks nor Agent assume any liability or
responsibility (except liability attributable to their gross negligence or
willful misconduct) for the
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performance of any duties of Borrowers hereunder or under any of the Loan
Documents or other control over the management and affairs of the Borrowers.
10.04. REMEDIES CUMULATIVE. All covenants, conditions, provisions,
warranties, indemnities and other undertakings of Borrowers contained in this
Agreement, or in any document referred to herein or in any agreement
supplementary hereto or in any of the Loan Documents shall be deemed
cumulative to and not in derogation or substitution of any of the terms,
covenants, conditions or agreements of Borrowers contained herein. The
failure or delay of Agent or Banks to exercise or enforce any rights, liens,
powers or remedies hereunder or under any of the aforesaid agreements or
other documents against any security shall not operate as a waiver of such
liens, rights, powers and remedies, but all such rights, powers and remedies
shall continue in full force and effect until the loans evidenced by the
Notes and the entire Obligation of Borrowers to Banks shall have been fully
satisfied, and all rights, liens, powers and remedies herein provided for are
cumulative and none are exclusive.
ARTICLE XI
ARBITRATION PROGRAM
11.01. BINDING ARBITRATION. Upon the demand of any party, whether made
before or after the institution of any judicial proceeding, any Dispute (as
defined below) shall be resolved by binding arbitration in accordance with
the terms of this Arbitration Program. A "Dispute" shall include any action,
dispute, claim, or controversy of any kind (e.g., whether in contract or in
tort, statutory or common law, legal or equitable, or otherwise) now existing
or hereafter arising between the parties in any way arising out of,
pertaining to or in connection with (1) the agreement, document or instrument
to which this Arbitration Program is attached or in which it is referred to
or any related agreements, documents, or instruments (the "Documents"), (2)
all past, present or future loans, notes instruments, drafts, credits,
accounts, deposit accounts, safe deposit boxes, safekeeping agreements,
guarantees, letters of credit, goods or services, or other transactions,
contracts or agreements of any kind whatsoever, (3) any past, present or
future incidents, omissions, acts, practices, or occurrences causing injury
to either party whereby the other party or its agents, employees, or
representatives may be liable, in whole or in part, or (4) any aspect of the
past, present or future relationships of the parties including any agency,
independent contractor or employment relationship but excluding claims for
workers' compensation and unemployment benefits ("Relationship"). Any party
to this Arbitration Program may, by summary proceedings (e.g., a plea in
abatement or motion to stay further proceedings), bring any action in court
to compel arbitration of any Disputes. Any party who fails or refuses to
submit to binding arbitration following a lawful demand by the opposing party
shall bear all costs and expenses incurred by the opposing party in
compelling arbitration of any Dispute. The parties agree that by engaging in
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activities with or involving each other as described above, they are
participating in transactions involving interstate commerce. THE PARTIES
UNDERSTAND THAT PURSUANT TO THIS ARBITRATION PROGRAM, DISPUTES SUBMITTED TO
ARBITRATION WILL NOT BE DECIDED THROUGH LITIGATION IN FEDERAL OR STATE COURTS
BEFORE A JUDGE OR JURY.
11.02. GOVERNING RULES. All Disputes between the parties shall be
resolved by binding arbitration administered by the American Arbitration
Association (the "AAA") in accordance with the Commercial Arbitration Rules
of the AAA, the Federal Arbitration Act (Title 9 of the United States Code)
and to the extent the foregoing are inapplicable, unenforceable or invalid,
the laws of the State of Texas. In the event of any inconsistency between
this Arbitration Program and such rules and statutes, this Arbitration
Program shall control. Judgment upon any award rendered hereunder may be
entered in any court having jurisdiction; provided, however, that nothing
contained herein shall be deemed to be a waiver by any party that is a bank
of the protections afforded to it under 12 U.S.C. Section 91 or Texas Banking
Code Art. 342-609.
11.03. NO WAIVER; PRESERVATION OF REMEDIES; MULTIPLE Parties. No
provision of, nor the exercise of any rights under, this Arbitration Program
shall limit the right of any party, during any Dispute to seek, use, and
employ ancillary or preliminary remedies, judicial or otherwise, for the
purpose of realizing upon, preserving, protecting, foreclosing or proceeding
under forcible entry and detainer for possession of any real or personal
property, and any such action shall not be deemed an election of remedies.
Such rights shall include, without limitation, rights and remedies relating
to (1) foreclosing against any real or personal property collateral or other
security, (2) exercising self-help remedies including set off rights or (3)
obtaining provisional or ancillary remedies such as injunctive relief,
sequestration, attachment, garnishment, or the appointment of a receiver from
a court having jurisdiction. Such rights can be exercised at any time except
to the extent such action is contrary to a final award or decision in any
arbitration proceeding. The institution and maintenance of an action for
judicial relief or pursuit of provisional or ancillary remedies or exercise
of self-help remedies shall not constitute a waiver of the right of any
party, including the plaintiff, to submit the Dispute to arbitration nor
render inapplicable the compulsory arbitration provisions hereof. In
Disputes involving indebtedness or other monetary obligations, each party
agrees that the other party may proceed against all liable persons, jointly
and severally, or against one or more of them, less than all, without
impairing rights against other liable persons. No party shall be required to
join the principal obligor or any other liable persons (e.g., sureties or
guarantors) in any proceeding against a particular person. A party may
release or settle with one or more liable persons as the party deems fit
without releasing or impairing rights to proceed against any persons not so
released.
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11.04. ARBITRATOR POWERS AND QUALIFICATIONS; AWARDS; MODIFICATION OR
VACATION OF AWARD. Arbitrators are empowered to resolve Disputes by summary
rulings. Arbitrators shall resolve all Disputes in accordance with the
applicable substantive law. All statutes of limitation applicable to any
Dispute shall apply to any proceeding in accordance with this Arbitration
Program. Any arbitrator selected shall be required to be a practicing
attorney licensed to practice law in the State of Texas and shall be required
to be experienced and knowledgeable in the substantive laws applicable to the
subject matter of the Dispute. With respect to a Dispute in which the claims
or amounts in controversy do not exceed $1,000,000, a single arbitrator shall
be chosen and shall resolve the Dispute by rendering an award not to exceed
$1,000,000, including all damages of any kind whatsoever, including costs,
fees and expenses. A Dispute involving claims or amounts in controversy
exceeding $1,000,000 shall be decided by a majority vote of a panel of three
arbitrators (an "Arbitration Panel"), the determination of any two of the
three arbitrators constituting the determination of the Arbitration Panel,
provided, however, that all three Arbitrators on the Arbitration Panel must
actively participate in all hearings and deliberations. Arbitrators
including any Arbitration Panel, may grant any remedy or relief deemed just
and equitable and within the scope of this Arbitration Program and may also
grant such ancillary relief as is necessary to make effective any award.
Arbitrators shall be empowered to impose sanctions and to take such other
actions as they deem necessary to the same extent a judge could pursuant to
the Federal Rules of Civil Procedure, the Texas Rules of Civil Procedure and
applicable law. Arbitrators and Arbitration Panels shall be required to make
specific, written findings of fact and conclusions of law. The determination
of an Arbitrator or Arbitration Panel shall be binding on all parties and
shall not be subject to further review or appeal except as otherwise allowed
by applicable law.
11.05. OTHER MATTERS AND MISCELLANEOUS. To the maximum extent
practicable, the AAA, the Arbitrator (or the Arbitration Panel, as
appropriate) and the parties shall take any action necessary to require that
an arbitration proceeding hereunder be concluded within 180 days of the
filing of the Dispute with the AAA. Arbitration proceedings hereunder shall
be conducted in the State of Texas at a location selected by the Arbitrator.
With respect to any Dispute, each party agrees that all discovery activities
shall be expressly limited to matters directly relevant to the Dispute and
any Arbitrator, Arbitration Panel and the AAA shall be required to fully
enforce this requirement. This Arbitration Program constitutes the entire
agreement of the parties with respect to its subject matter and supersedes
all prior discussions, arrangements, negotiations, and other communications
on dispute resolution. The provisions of this Arbitration Program shall
survive any termination, amendment, or expiration of the Documents or the
Relationship, unless the parties otherwise expressly agree in writing. To
the extent permitted by applicable law, Arbitrators, including any
Arbitration Panel, shall have the power to award recovery of all costs and
fees (including attorneys' fees, administrative fees, and arbitrators' fees)
to the prevailing
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party. This Arbitration Program may be amended, changed, or modified only by
the express provisions of a writing which specifically refers to this
Arbitration Program and which is signed by all the parties hereto. If any
term, covenant, condition, or provision of this Arbitration Program is found
to be unlawful, invalid or unenforceable, such illegality or invalidity or
unenforceability shall not affect the legality, validity, or enforceability
of the remaining parts of this Arbitration Program, and all such remaining
parts hereof shall be valid and enforceable and have full force and effect as
if the illegal, invalid, or unenforceable part had not been included. Each
party agrees to keep all Disputes and arbitration proceedings strictly
confidential, except for disclosures of information required in the ordinary
course of business of the parties or by applicable law or regulation.
ARTICLE XII
THE AGENT
12.01. APPOINTMENT AND AUTHORIZATION. Each Bank hereby irrevocably
appoints and authorizes Agent to take such action on its behalf and to
exercise such powers under the Loan Documents as are delegated to Agent by
the terms thereof, together with such powers as are reasonably incidental
thereto. With respect to its Commitment, the Advances made by it and the
Notes issued to it, Agent shall have the same rights and powers under this
Agreement as any other Bank and may exercise the same as though it were not
Agent; and the term "Bank" or "Banks" shall, unless otherwise expressly
indicated, include the Agent in its capacity as a Bank. The Agent and its
affiliates may accept deposits from, lend money to, act as trustee under
indentures of, and generally engage in any kind of business with, Borrowers,
and any Person which may do business with Borrowers, all as if Agent were not
Agent hereunder and without any duty to account therefor to Banks.
12.02. NOTE HOLDERS. Agent may treat the payee of any Note as the
holder thereof until written notice of transfer shall have been filed with it
signed by such payee and in form satisfactory to Agent.
12.03. CONSULTATION WITH COUNSEL. Banks agree that Agent may consult
with legal counsel selected by it and shall not be liable for any action
taken or suffered in good faith by them in accordance with the advice of such
counsel.
12.04. DOCUMENTS. Agent shall not be under a duty to examine or pass
upon the validity, effectiveness, enforceability, genuineness or value of any
of the Loan Documents or any other instrument or document furnished pursuant
thereto or in connection therewith, and Agent shall be entitled to assume
that the same are valid, effective, enforceable and genuine and what they
purport to be.
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12.05. RESIGNATION OR REMOVAL OF AGENT. Subject to the appointment and
acceptance of a successor Agent as provided below, the Agent may resign at
any time by giving written notice thereof to Banks and Borrowers and the
Agent may be removed at any time with or without cause by Majority Banks.
Upon any such resignation or removal, Majority Banks shall have the right to
appoint a successor Agent. If no successor Agent shall have been so
appointed by Majority Banks and shall have accepted such appointment within
30 days after the retiring Agent's giving of notice of resignation or
Majority Banks' removal of the retiring Agent, then the retiring Agent may,
on behalf of the Banks, appoint a successor Agent. Upon the acceptance of
any appointment as Agent hereunder by a successor Agent, such successor Agent
shall thereupon succeed to and become vested with all the rights, powers,
privileges and duties of the retiring Agent, and the retiring Agent shall be
discharged from its duties and obligations hereunder. After any retiring
Agent's resignation or removal hereunder as Agent, the provisions of this
Article 12 shall continue in effect for its benefit in respect to any actions
taken or omitted to be taken by it while it was acting as Agent.
12.06. RESPONSIBILITY OF AGENT. It is expressly understood and agreed
that the obligations of Agent under the Loan Documents are only those
expressly set forth in the Loan Documents and that Agent shall be entitled to
assume that no Event of Default or event which, with the giving of notice or
lapse of time, or both, would constitute an Event of Default has occurred and
is continuing, unless Agent has actual knowledge of such fact or has received
notice from a Bank that such Bank considers that an Event of Default or such
event has occurred and is continuing and specifying the nature thereof.
Agent shall furnish to each of Banks within five (5) Business Days receipt
copies of the documents, statements and reports furnished to Agent pursuant
to Sections 8.01, 8.02, 8.03, 8.04, 8.05, 8.06, 8.07, 8.09, 8.10, 8.11 and
8.12. Banks recognize and agree, that for purposes of Section 2.02(b)
hereof, Agent shall not be required to determine independently whether the
conditions described in Sections 6.02(a), (b), (c), (d) and (e) have been
satisfied except for the receipt of a Request For Borrowing and, in
disbursing funds to Borrowers, may rely fully upon statements contained in
the relevant Request for Borrowing. Neither Agent nor any of its directors,
officers or employees shall be liable for any action taken or omitted to be
taken by it under or in connection with the Loan Documents, except for its
own gross negligence or willful misconduct. Agent shall incur no liability
under or in respect of any of the Loan Documents by acting upon any notice,
consent, certificate, warranty or other paper or instrument reasonably
believed by it to be genuine or authentic or to be signed by the proper party
or parties, or with respect to anything which it may do or refrain from doing
in the reasonable exercise of its judgment, or which may seem to it to be
necessary or desirable in the premises.
The relationship between Agent and each of the Banks is only that of
agent and principal and has no fiduciary aspects, and Agent's duties
hereunder are acknowledged
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to be only ministerial and not involving the exercise of discretion on its
part. Nothing in this Loan Agreement or elsewhere contained shall be
construed to impose on Agent any duties or responsibilities other than those
for which express provision is herein made. In performing its duties and
functions hereunder, Agent does not assume and shall not be deemed to have
assumed, and hereby expressly disclaims, any obligation or responsibility
toward or any relationship of agency or trust with or for, Borrowers. As to
any matters not expressly provided for by this Loan Agreement (including,
without limitation, enforcement or collection of the Notes), Agent shall not
be required to exercise any discretion or take any action, but shall be
required to act or to refrain from acting (and shall be fully protected in so
acting or refraining from acting) upon the instructions of Majority Banks or
all the Banks where unanimity is required and such instructions shall be
binding upon all Banks and all holders of Notes; PROVIDED, HOWEVER, that
Agent shall not be required to take any action which exposes Agent to
personal liability or which is contrary to this Loan Agreement or applicable
law.
12.07. NOTICES OF EVENT OF DEFAULT. In the event that Agent shall have
acquired actual knowledge of any Event of Default or of an event which, with
the giving of notice or the lapse of time, or both, would constitute an Event
of Default, Agent shall promptly give written notice thereof to the other
Banks.
12.08. INDEPENDENT INVESTIGATION. Each of the Banks severally
represents and warrants to Agent that it has made its own independent
investigation and assessment of the financial condition and affairs of the
Borrowers in connection with the making and continuation of its participation
in the Loans hereunder and has not relied exclusively on any information
provided to such Bank by Agent in connection herewith, and each Bank
represents, warrants and undertakes to Agent that it shall continue to make
its own independent appraisal of the creditworthiness of the Borrowers while
the Loans are outstanding or its commitment hereunder is in force.
12.09. INDEMNIFICATION. Banks agree to indemnify Agent (to the extent
not reimbursed by Borrowers), ratably according to the proportion that the
respective principal amounts of the Note held by each of them bears to the
sum of the aggregate principal amount of the Notes, from and against any and
all liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses, or disbursements of any kind or nature whatsoever
which may be imposed on, incurred by or asserted against Agent in any way
relating to or arising out of the Loan Documents or any action taken or
omitted by Agent under the Loan Documents, provided that no Bank shall be
liable for any portion of such liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements
resulting from Agent's gross negligence or willful misconduct.
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12.10. BENEFIT OF ARTICLE XII. The agreements contained in this
Article XII are solely for the benefit of Agent and the Banks, and are not
for the benefit of, or to be relied upon by, the Borrowers, or any third
party.
12.11. NOT A LOAN TO AGENT; NO DUTY TO REPURCHASE. No amount paid by
any Bank hereunder shall be considered a loan to Agent. Agent shall have no
obligation to repurchase any interest from any Bank.
12.12. BANK'S REPRESENTATIONS. Each Bank represents and warrants to
Agent and the other Banks that: (a) it is engaged in the business of
entering into commercial lending transactions (including transactions of the
nature contemplated herein) and can bear the economic risk related to the
same; and (b) it does not consider the obligations hereunder to constitute
the "purchase" or "sale" of a "security" within the meaning of any federal or
state securities statute or law, or any rule or regulation under any of the
foregoing.
12.13 CO-AGENT. It is expressly understood and agreed that Bank One,
Texas, N.A. shall have no responsibility or obligations as a co-agent
hereunder other than its obligations as a Bank under this Loan Agreement.
ARTICLE XIII
MISCELLANEOUS
13.01. WAIVER. No failure to exercise, and no delay in exercising, on
the part of any Bank, any right hereunder shall operate as a waiver thereof,
nor shall any single or partial exercise thereof preclude any other further
exercise thereof or the exercise of any other right. The rights of Banks
hereunder and under the Loan Documents shall be in addition to all other
rights provided by law. No notice or demand given in any case shall
constitute a waiver of the right to take other action in the same, similar or
other instances without such notice or demand.
13.02. NOTICES. Any notices or other communications required or
permitted to be given by this Agreement or any other documents relating to
the loans evidenced by the Notes (the "Loan Documents") must be given in
writing and personally delivered, sent by telecopy or telex (answerback
received) or mailed by prepaid certified or registered mail, return receipt
requested, to the party to whom such notice or communication is directed at
the address of such party as follows:
Borrowers: AmeriCredit Corp.
200 Bailey Avenue
Fort Worth, Texas 76107
Attn: Chief Financial Officer
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FAX No. (817) 336-9519
AmeriCredit Financial Services, Inc.
200 Bailey Avenue
Fort Worth, Texas 76107
Attn: Chief Financial Officer
FAX No. (817) 336-9519
AmeriCredit Operating Co., Inc.
200 Bailey Avenue
Fort Worth, Texas 76107
Attn: Chief Financial Officer
FAX No. (817) 336-9519
Agent: Wells Fargo Bank (Texas), National Association
309 W. Seventh Street, Suite 1100
Fort Worth, Texas 76102
Attn: Steve Wood
FAX No. (817) 885-1110
Wells Fargo Bank, N.A.
201 Third Street
Eighth Floor
San Francisco, California 94103
Attn: Agency Department - Shelley Johnson
FAX No. (415) 512-9408
Any such notice or other communication shall be deemed to have been given on
the date it is personally delivered or sent by telecopy or telex as aforesaid
or, if mailed, on the second day after it is mailed as aforesaid (whether
actually received or not). Any party may change its address for purposes of
this Loan Agreement by giving notice of such change to all other parties
pursuant to this Section 13.02. Any notice given hereunder by Borrowers to
Agent shall constitute notice to all of the Banks.
13.03. PAYMENT OF EXPENSES. Borrowers agree to pay all costs and
expenses of Banks (including, without limitation, the reasonable attorneys'
fees of Banks' outside legal counsel) incurred by Banks in connection with
the preservation and enforcement (which include work-outs and bankruptcy
related matters) of Banks' rights under this Loan Agreement, the Notes,
and/or the other Loan Documents, and all reasonable costs and expenses of
Banks (including without limitation the reasonable fees and expenses of
Banks' outside legal counsel) in connection with the negotiation,
preparation, execution and delivery of this Loan Agreement, the Notes, and
the other Loan Documents and any and all amendments, modifications and
supplements thereof or thereto.
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13.04. MAXIMUM INTEREST RATE. Regardless of any provisions contained
in this Loan Agreement, the Notes or in any of the other Loan Documents,
Banks shall never be deemed to have contracted for or be entitled to receive,
collect or apply as interest on the Notes any amount in excess of the Maximum
Rate, and, in the event any Bank ever receives, collects or applies as
interest any such excess, such amount which would be excessive interest shall
be deemed to be a partial prepayment of principal and treated hereunder as
such, and, if the principal amount of the Obligations is paid in full, any
remaining excess shall forthwith be paid to Borrowers. In determining
whether or not the interest paid or payable under any specific contingency
exceeds the Maximum Rate, Borrowers and Banks shall, to the maximum extent
permitted by applicable law, (i) characterize any nonprincipal payments
(other than payments which are expressly designated as interest payments
hereunder) as an expense, fee, or premium, rather than as interest, (ii)
exclude voluntary prepayments and the effect thereof, and (iii) amortize,
prorate, allocate and spread, in equal parts, the total amount of interest
throughout the entire contemplated term of the indebtedness so that interest
paid by Borrowers does not exceed the Maximum Rate; provided that, if a Note
is paid and performed in full prior to the end of the full contemplated term
thereof, and if the interest received for the actual period of existence
thereof exceeds the Maximum Rate, Banks shall refund to Borrowers the amount
of such excess or credit the amount of such excess against the principal
amount of the Notes and, in such event, Banks shall not be subject to the
penalties provided by any laws for contracting for, charging, taking,
reserving or receiving interest in excess of the Maximum Rate.
13.05. AMENDMENTS, WAIVERS, ETC. Agent may enter into any amendment or
modification of, or may waive compliance with the terms of, any of the Loan
Documents with the written direction of the Majority Banks; PROVIDED THAT the
consent of all Banks shall be required before Agent may take or omit to take
any action under any of the Loan Documents directly affecting (a) the
extension of the maturity of or the postponement of the payment of any
portion of the principal of or interest on Revolving Credit Loans or any fees
relating thereto, (b) a reduction of or increase in the principal amount of
or rate of interest payable on Revolving Credit Loans or any fees related
thereto, (c) the release of any of Borrowers, (d) the release of any of the
Guarantors, (e) the release of any collateral except in the case of a
Securitization or an Additional Warehouse Facility or (f) any material change
in the definition of Revolving Credit Borrowing Base, in the definition of
Net Amount or in the definition of Eligible Finance Contract. Nor shall any
of the following occur without the consent of all Banks: (a) any amendment
to the definition of Majority Banks, or (b) any amendment to this Section
13.05. The Commitment of a Bank shall not be increased without the consent
of such Bank. If any Bank is unwilling to consent to any amendment or
modification of, or waiver of compliance with, the Loan Agreement (where the
consent of such Bank is required), the consenting Majority Banks shall have
the right, but not the obligation, to repurchase such Bank's Percentage of
the Obligation at such time for a purchase price equal to Bank's Percentage
of any and all unpaid Advances made by Agent to the
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Borrowers under the Loan Agreement, any and all unpaid interest thereon and
unpaid accrued fees or other amounts owing to such Bank.
13.06. GOVERNING LAW. This Loan Agreement has been prepared, is being
executed and delivered, and is intended to be performed in the State of
Texas, and the substantive laws of such state and the applicable federal laws
of the United States of America shall govern the validity, construction,
enforcement and interpretation of this Loan Agreement and all of the other
Loan Documents.
13.07. INVALID PROVISIONS. If any provision of any Loan Document is
held to be illegal, invalid or unenforceable under present or future laws
during the term of this Loan Agreement, such provision shall be fully
severable; such Loan Document shall be construed and enforced as if such
illegal, invalid or unenforceable provision had never comprised a part of
such Loan Document; and the remaining provisions of such Loan Document shall
remain in full force and effect and shall not be affected by the illegal,
invalid or unenforceable provision or by its severance from such Loan
Document. Furthermore, in lieu of each such illegal, invalid or
unenforceable provision, there shall be added as part of such Loan Document a
provision mutually agreeable to Borrowers, Agent and Majority Banks as
similar in terms to such illegal, invalid or unenforceable provision as may
be possible and be legal, valid and enforceable. In the event Borrowers,
Agent and Majority Banks are unable to agree upon a provision to be added to
the Loan Document within a period of ten (10) Business Days after a provision
of the Loan Document is held to be illegal, invalid or unenforceable, then a
provision reasonably acceptable to Agent and Majority Banks as similar in
terms to the illegal, invalid or unenforceable provision as is possible and
be legal, valid and enforceable shall be added automatically to such Loan
Document. In either case, the effective date of the added provision shall be
the date upon which the prior provision was held to be illegal, invalid or
unenforceable.
13.08. HEADINGS. Section headings are for convenience of reference
only and shall in no way affect the interpretation of this Loan Agreement.
13.09. PARTICIPATION AGREEMENTS AND ASSIGNMENTS. (a)(i) Subject to
Section 13.09(a)(ii), each Bank may assign to one or more Eligible Assignees
all or a portion of its rights and obligations under this Loan Agreement
(including, without limitation, all or a portion of its Commitment, the Loan
owing to it and the Note held by it) and the other Loan Documents; PROVIDED,
HOWEVER, that (A) no such assignment shall be made except to an Affiliate
unless such assignment and assignee have been approved by the Agent and, so
long as no Events of Default exists, the Borrowers, such approvals not to be
unreasonably withheld, (B) each such assignment shall be of a constant, and
not a varying, percentage of all rights and obligations of the assignor under
this Loan Agreement and the other Loan Documents, and no assignment shall be
made unless it covers a pro rata share of all rights and obligations of such
assignor under this Loan
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Agreement and the other Loan Documents, (C) the amount of the Commitment of
the assigning Bank being assigned pursuant to each such assignment
(determined as of the date of the Assignment and Acceptance substantially in
the form of EXHIBIT H (hereinafter referred to as the "Assignment and
Acceptance") with respect to such assignment) shall, unless otherwise agreed
to by the Agent, in no event be less than $10,000,000 or, if less, the
entirety of its Commitment and shall be an integral multiple of $1,000,000,
(D) each such assignment shall be to an Eligible Assignee (defined below),
(E) the parties to each such assignment shall execute and deliver to the
Agent, for its acceptance and recording in the Register (defined below), an
Assignment and Acceptance, together with any Note subject to such assignment
and (F) Agent receives a fee from the assignor in the amount of $2,500. Upon
such execution, delivery, acceptance and recording, from and after the
effective date specified in each Assignment and Acceptance, (1) the assignee
thereunder shall be a party hereto and, to the extent that rights and
obligations under the Loan Documents have been assigned to it pursuant to
such Assignment and Acceptance, have the rights and obligations of a Bank
under the Loan Documents, (2) the assigning Bank thereunder shall, to the
extent that rights and obligations under the Loan Documents have been
assigned by it pursuant to such Assignment and Acceptance, relinquish its
rights and be released from its obligations under the Loan Documents (and, in
the case of an Assignment and Acceptance covering all or the remaining
portion of an assigning Bank's rights and obligations under this Loan
Agreement, such Bank shall cease to be a party hereto), and (3) Section
2.01(a) shall be deemed to have been automatically amended to reflect the
revised Commitments. As used herein, "Eligible Assignee" shall mean (a) any
Bank or any Affiliate of any Bank; (b) a commercial bank organized under the
laws of the United States, or any state thereof, and having total assets in
excess of $1,000,000,000 and having deposits rated in either of the two
highest generic letter rating categories (without regard to subcategories)
from either Standard & Poor's Corporation or Moody's Investors Service, Inc.;
(c) a commercial bank organized under the laws of any other country which is
a member of the Organization for Economic Cooperation and Development
("OECD"), or a political subdivision of any such country, and having total
assets in excess of $1,000,000,000, provided that such bank is acting through
a branch or agency located in the country in which it is organized or another
country which is also a member of the OECD; (d) the central bank of any
country which is a member of the OECD; and (e) any other financial
institution approved by the Agent.
(ii) In the event any Bank desires to transfer all or any portion of
its rights and obligations under the Loan Documents, it shall give the
Borrowers and the Agent prior written notice of the identity of such
transferee and the terms and conditions of such transfer (a "TRANSFER
NOTICE"). So long as no Event of Default has occurred and is continuing, the
Borrowers may, no later than ten (10) days following receipt of such Transfer
Notice, designate an alternative
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transferee and such Bank shall thereupon be obligated to sell the interests
specified in such Transfer Notice to such alternative transferee, subject to
the following: (A) such transfer shall be made on the same terms and
conditions outlined in such Transfer Notice, (B) such transfer shall
otherwise comply with the terms and conditions of the Loan Documents
(including Section 13.09(a)(i), and (C) such alternative transferee must be
an Eligible Assignee approved by the Agent. If the Borrowers shall fail to
designate an alternative transferee within such ten (10) day period, such
Bank shall, subject to compliance with the other terms and provisions hereof,
be free to consummate the transfer described in such Transfer Notice.
(b) By executing and delivering an Assignment and Acceptance
substantially in the form of EXHIBIT H, the assigning Bank thereunder and the
assignee thereunder confirm to and agree with each other and the other
parties hereto as follows: (i) other than as provided in such Assignment and
Acceptance, such assigning Bank makes no representation or warranty and
assumes no responsibility with respect to any statements, warranties or
representations made in or in connection with the Loan Documents or the
execution, legality, validity, enforceability, genuineness, sufficiency or
value of this Loan Agreement or any other instrument or document furnished
pursuant hereto, (ii) such assigning Bank makes no representation or warranty
and assumes no responsibility with respect to the financial condition of the
Borrowers or the performance or observance by the Borrowers of any of its
obligations under this Loan Agreement or any other instrument or document
furnished pursuant hereto; (iii) such assignee confirms that it has received
a copy of this Loan Agreement and the other Loan Documents, together with
copies of the financial statements referred to in Section 7.07 and such other
documents and information as it has deemed appropriate to make its own credit
analysis and decision to enter into such Assignment and Acceptance; (iv) such
assignee will, independently and without reliance upon any of the Banks
(including such assigning Bank) and based on such documents and information
as it shall deem appropriate at the time, continue to make its own credit
decisions in taking or not taking action under this Loan Agreement; (v) such
assignee confirms that it is an Eligible Assignee; (vi) such assignee
appoints and authorizes the Agent to take such action on its behalf and to
exercise such powers under this Loan Agreement and the other Loan Documents
as are delegated to such Person by the terms thereof, together with such
powers as are reasonably incidental thereto; and (vii) such assignee agrees
that it will perform in accordance with their terms all of the obligations
which by the terms of this Loan Agreement and the other Loan Documents are
required to be performed by it as a Bank.
(c) The Agent shall maintain a copy of each Assignment and Acceptance
delivered to and accepted by it and a register for the recordation of the
names and addresses of the Banks and the Commitment of, and principal amount
of the Notes owing to, each Bank from time to time (the "REGISTER"). The
entries in the Register shall be conclusive and binding for all purposes,
absent manifest error, and the Borrowers and each of the Banks may treat each
Person whose name is recorded in the
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Register as a Bank hereunder for all purposes of this Loan Agreement. The
Register shall be available for inspection by the Borrowers or any of the
Banks at any reasonable time and from time to time upon reasonable prior
notice.
(d) Upon its receipt of an Assignment and Acceptance executed by an
assigning Bank and an assignee representing that it is an Eligible Assignee,
together with any Note subject to such assignment, the Agent shall, if such
Assignment and Acceptance has been completed and is in substantially the form
of EXHIBIT H hereto and satisfies all other requirements set forth in this
Section 13.09, (i) accept such Assignment and Acceptance, (ii) record the
information contained therein in the Register and (iii) give prompt notice
thereof to the Borrowers and the other Banks. Within five (5) Business Days
after its receipt of such notice, the Borrowers, at their own expense, shall
execute and deliver to the Agent, in exchange for the surrendered Note, a new
Note to the order of such Eligible Assignee in an amount corresponding to the
Commitment assumed by such Eligible Assignee pursuant to such Assignment and
Acceptance and, if the assigning Bank has retained a Commitment hereunder, a
new Note to the order of the assigning Bank in an amount corresponding to the
Commitment retained by it hereunder. Such new Notes shall be in an aggregate
principal amount equal to the aggregate principal amount of such surrendered
Notes, shall be dated the effective date of such Assignment and Acceptance
and shall otherwise be in substantially the form prescribed by EXHIBIT H
hereto.
(e) Each Bank may sell participations to one or more banks or other
entities in or to all or a portion of its rights and obligations under this
Loan Agreement and the other Loan Documents (including, without limitation,
all or a portion of its Commitment and the Notes owing to it); PROVIDED,
HOWEVER, that (i) such Bank's obligations under this Loan Agreement
(including, without limitation, its Commitment to the Borrowers hereunder)
and the other Loan Documents shall remain unchanged, (ii) such Bank shall
remain solely responsible to the other parties hereto for the performance of
such obligations, and the participating banks or other entities shall not be
considered a "Bank" for purposes of the Loan Documents, (iii) the
participating banks or other entities shall be entitled to the cost
protection provision contained in Section 4.03 and Section 4.05, in each case
to the same extent that the Bank from which such participating bank or other
entity acquired its participations would be entitled to the benefit of such
cost protection provisions and (iv) the Borrowers and the other Banks shall
continue to deal solely and directly with such Bank in connection with such
Bank's rights and obligations under this Loan Agreement and the other Loan
Documents, and such Bank shall retain the sole right to enforce the
obligations of the Borrowers relating to the Loans and to approve any
amendment, modification or waiver of any provision of this Loan Agreement
(other than amendments, modifications or waivers with respect to the amounts
of any fees payable hereunder or the amount of principal of or the rate at
which interest is payable on the Notes, or the dates fixed for payments of
principal or interest on the Notes).
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(f) Any Bank may, in connection with any assignment or participation or
proposed assignment or participation pursuant to this Section 13.09, disclose
to the assignee or participant or proposed assignee or participant, any
information relating to the Borrowers furnished to such Bank by or on behalf
of the Borrowers; PROVIDED that prior to any such disclosure, each such
assignee or participant or proposed assignee or participant shall agree
(subject to customary exceptions) to preserve the confidentiality of any
confidential information relating to the Borrowers received from such Bank.
(g) The obligations of the Banks in this Loan Agreement, the Notes and
any other Loan Documents shall not be assignable or transferable by Borrowers
and any purported assignment or transfer shall, as to the Agent and Banks, be
of no force and effect.
13.10. ARTICLE 15.10(b). Borrowers and Banks hereby agree that, except
for Article 15.10(b) thereof, the provisions of Charter 15 of Title 79 of the
Revised Civil Statutes of Texas, 1925, as amended (regulating certain
revolving credit loans and revolving triparty accounts) shall not apply to
the Loan Documents.
13.11. SURVIVAL. All representations and warranties made by Borrowers
herein shall survive delivery of the Notes and the making of the Revolving
Credit Loans.
13.12. NO THIRD PARTY BENEFICIARY. The parties do not intend the
benefits of this Agreement to inure to any third party, nor shall this Loan
Agreement be construed to make or render Banks liable to any materialman,
supplier, contractor, subcontractor, purchaser or lessee of any property
owned by Borrowers, or for debts or claims accruing to any such persons
against Borrowers. Notwithstanding anything contained herein or in the
Notes, or in any other Loan Document, or any conduct or course of conduct by
any or all of the parties hereto, before or after signing this Loan Agreement
or any of the other Loan Documents, neither this Loan Agreement nor any other
Loan Document shall be construed as creating any right, claim or cause of
action against Banks, or any of its officers, directors, agents or employees,
in favor of any materialman, supplier, contractor, subcontractor, purchaser
or lessee of any property owned by Borrowers, nor to any other person or
entity other than Borrowers.
13.13. COUNTERPARTS. This Loan Agreement may be executed by one or
more of the parties to this Loan Agreement on any number of separate
counterparts (including by facsimile transmission), and all of said
counterparts taken together shall be deemed to constitute one and the same
instrument. A set of the copies of this Loan Agreement signed by all the
parties shall be lodged with the Borrowers and the Agent.
13.14. FINAL AGREEMENT. THIS WRITTEN AGREEMENT REPRESENTS THE FINAL
AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE
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CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL
AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN
THE PARTIES.
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EXECUTED effective as of the 7th day of October 1996.
AMERICREDIT CORP., a Texas
corporation
By:
-----------------------------------------
Daniel E. Berce, Executive Vice President
AMERICREDIT FINANCIAL SERVICES,
INC., a Delaware corporation
By:
-----------------------------------------
Daniel E. Berce, Executive Vice President
AMERICREDIT OPERATING CO., INC., a
Delaware corporation
By:
-----------------------------------------
Daniel E. Berce, Executive Vice President
BORROWERS
AMERICREDIT PREMIUM FINANCE,
INC., a Delaware corporation
By:
-----------------------------------------
Daniel E. Berce, President
ACF INVESTMENT CORP., a Delaware
corporation
By:
-----------------------------------------
Daniel E. Berce, Executive Vice President
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GUARANTORS
WELLS FARGO BANK (TEXAS), NATIONAL ASSOCIATION
By:
------------------------------------------
Steve Wood, Senior
Vice President
BANK ONE, TEXAS, N.A.
By:
------------------------------------------
J. Michael Wilson, Vice President
LASALLE NATIONAL BANK
By:
------------------------------------------
Terry M. Keating, First Vice
President
THE SUMITOMO BANK LIMITED
By:
------------------------------------------
John J. O'Neill, Vice President and
Manager
By:
------------------------------------------
Julie Schell, Vice President
HARRIS TRUST AND SAVINGS BANK
By:
------------------------------------------
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Michael A. Houlihan, Vice
President
COMERICA BANK-TEXAS
By:
------------------------------------------
Jeffrey A. Moten, Vice
President
TEXAS COMMERCE BANK NATIONAL
ASSOCIATION
By:
------------------------------------------
Buddy Wurthrich, Vice President
BANKAMERICA BUSINESS CREDIT, INC.
By:
------------------------------------------
Name:
-----------------------------------
Title:
-----------------------------------
THE BANK OF NOVA SCOTIA
By:
------------------------------------------
Name:
----------------------------------------
Title:
---------------------------------------
BANKS
WELLS FARGO BANK (TEXAS), NATIONAL
ASSOCIATION
By:
------------------------------------------
Steve Wood, Senior Vice President
AGENT
BANK ONE, TEXAS, N.A.
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By:
------------------------------------------
J. Michael Wilson, Vice President
CO-AGENT