EXHIBIT 4.6
AGENTED REVOLVING CREDIT AGREEMENT
THIS REVOLVING CREDIT AND TERM LOAN AGREEMENT dated as of the 18th day
of December, 2001, among AMERICA'S CAR-MART, INC., an Arkansas corporation
("ACM"), and COLONIAL AUTO FINANCE, INC., an Arkansas corporation ("Colonial")
(separately and collectively, "Borrower"), BANK OF ARKANSAS, N.A., SUPERIOR
FEDERAL BANK, GREAT SOUTHERN BANK, COMMUNITY BANK, BANK OF OKLAHOMA, N.A.,
ARKANSAS STATE BANK, and one or more additional lenders to be determined at a
later date ("Additional Lender") (individually a "Bank" and collectively the
"Banks"), BANK OF ARKANSAS, N.A., as agent for the Banks hereunder (in such
capacity the "Agent"), and BANK OF OKLAHOMA, N.A., as the paying agent ("Paying
Agent").
WITNESSETH:
WHEREAS, the Borrower has requested the Banks to make available to the
Borrower a revolving line of credit for loans in an amount not to exceed
$39,500,000 and which extensions of credit the Borrower will use for refinancing
existing indebtedness and for its working capital needs and general business
purposes;
WHEREAS, the Banks have agreed to make available to the Borrower a
revolving credit facility upon the terms and conditions set forth in this
Agreement;
NOW, THEREFORE, in consideration of the mutual conditions and
agreements set forth in this Agreement, and for good and valuable consideration,
the receipt of which is hereby acknowledged, the Banks, the Agent, the Paying
Agent and the Borrower hereby agree as follows:
1 ARTICLE
DEFINITIONS AND ACCOUNTING TERMS
1.01. SECTION. DEFINED TERMS. As used in this Agreement, the following terms
have the following meanings (terms defined in the singular to have the same
meaning when used in the plural and vice versa):
"Additional Lender Commitment Date" means the date on which the
commitment of an additional $2,500,000 has been obtained, as evidenced by
execution of Additional Lender Signature Page(s) by one or more Additional
Lenders, signifying an aggregate commitment of $2,500,000 by the Additional
Lenders.
"Adjusted Tangible Assets" means all assets of the Borrower except: (a)
deferred assets, other than prepaid items and deferred taxes, (b) patents,
copyrights, trademarks, trade names, franchises, goodwill and other similar
intangibles; (c) Restricted Investments; (d) unamortized debt discount; (e)
assets of the Borrower constituting Intercompany Accounts; (f) assets located
and notes and receivables due from obligors domiciled outside the United States
of America, Puerto Rico, or Canada; and (g) fixed assets to the extent of any
write-up in the book value thereof resulting from a revaluation effective after
the Closing Date.
"Adjusted Tangible Net Worth" means, at any date, the remainder of (a)
the net book value (after deducting related depreciation, obsolescence,
amortization, valuation, and other proper reserves as determined in accordance
with GAAP) at which the Adjusted Tangible Assets would be shown on a balance
sheet of the Borrower at such date prepared in accordance with GAAP, minus (b)
the amount at which the Borrower's liabilities would be shown on such balance
sheet in accordance with GAAP.
"Advance Rate" means sixty-two and one half percent (62.5%) of Eligible
Vehicle Contracts; provided, however, that the Advance Rate shall be reduced by
twice the percentage amount by which the Advance Rate Adjustment Percent exceeds
33% (rounded to the nearest one-tenth percent), in each instance such
adjustments to be calculated as of the last day of each month and effective as
of the first day of the following month. For example, if the Advance Rate
Adjustment Percent were 34% (1% over the standard), the Advance Rate would be
reduced by 2%.
"Advance Rate Adjustment Percent" means, calculated as of the last day
of each month, the sum of the Past Due Percent, the Repossession Percent and the
Net Charge-Off Percent rounded to the lowest whole percent.
"Affiliate" means any Person (1) which directly or indirectly controls,
or is controlled by, or is under common control with, the Borrower or a
Subsidiary; (2) which directly or indirectly beneficially owns or holds five
percent (5%) or more of any class of voting stock of the Borrower or any
Subsidiary; or (3) five percent (5%) or more of the voting stock of which is
directly or indirectly beneficially owned or held by the Borrower or a
Subsidiary. The term "control" means the possession, directly or indirectly, of
the power to direct or cause the direction of the management and policies of a
Person, whether through the ownership of voting securities, by contract or
otherwise.
"Agents Liens" means the Liens in the Collateral granted to the Agent,
for the ratable benefit of the Banks and Agent pursuant to this Agreement and
the other Loan Documents.
"Aggregate Revolver Outstanding" means, at any time the unpaid balance
of the Revolving Credit Loans.
"Agent Fee" means a one-time fee in the amount of $39,500 (1/10 of 1%
of the Commitment) payable at Closing to Agent for the account of Agent.
"Agreement" means this Agented Revolving Credit Agreement, as amended,
supplemented, or modified from time to time.
"Average Net Balance" means, calculated as of the last day of each
month, the Net Balances owing under all Vehicle Contracts as of the last day of
each of the prior four (4) months then ending divided by Four (4).
"Average Net Charge-Offs" means, calculated as of the last day of each
month, the Net Charge-Offs for the four-month period then ending divided by four
(4).
"Blocked Account Agreement" means that certain Blocked Account
Agreement described in Section 5.15.
"Borrowing Base" means, as of the date of determination, the amount
determined by multiplying the Advance Rate by the Net Eligible Contract Payments
then outstanding, then less $7,650,000.
"Borrowing Base Certificate" means each certificate from Borrower to
Agent relating to the Borrowing Base, substantially in the form of Exhibit "A"
hereto.
"Business Day" means any day other than a Saturday, Sunday, or other
day on which commercial banks in Arkansas are authorized or required to close
under the laws of such State(s) and, if the applicable day relates to LIBOR
Loan, LIBOR Interest Period, or notice with respect to a LIBOR Loan, a day on
which dealings in Dollar deposits are also carried on in the London interbank
market and banks are open for business in London.
"Capital Lease" means all leases which have been or should be
capitalized on the books of the lessee in accordance with GAAP.
"Certificate of Title" means the certificate of title or other evidence
of ownership of any Vehicle issued by the appropriate Division of Motor Vehicles
or its counterpart in the jurisdiction in which the Contract Debtor resides.
"Closing Date" means the date upon which this Agreement is executed and
the conditions precedent set forth in Section 3.01 are satisfied.
"Code" means the Internal Revenue Code of 1986, as amended from time to
time, and the regulations and published interpretations thereof.
"Collateral" means all property which is subject or is to be subject to
the Lien granted by the Security Agreement.
"Commitment" means each Bank's obligation to make Loans to the Borrower
pursuant to Section 2.01 in the amount referred to therein.
"Commonly Controlled Entity" means an entity, whether or not
incorporated, which is under common control with the Borrower within the meaning
of the Code.
"Contracts" means all of the Borrower's now owned and hereafter
acquired loan agreements, accounts, installment sale contracts, instruments,
notes, documents, chattel paper, and all other forms of obligations owing to the
Borrower, including Vehicle Contracts and any collateral for any of the
foregoing, including all rights under any and all Security Documents and
merchandise returned to or repossessed by the Borrower.
"Contract Debtor" means each Person who is obligated to the Borrower to
perform any duty under or to make any payment pursuant to the terms of a Vehicle
Contract.
"Credit Guidelines" means the Borrower's guidelines (which have
previously been reviewed and approved by the Agent) which state the credit
criteria used by the Borrower in determining the creditworthiness of Contract
Debtors.
"Crown Sub-Debt" means the revolving line of credit provided to the
Borrower by Crown Group, Inc. as of the Closing Date in an amount not to exceed
Seven Million Five Hundred Thousand Dollars and NO/100 ($7,500,000).
"Crown Sub-Debt Subordination Agreement" means the Subordination
Agreement dated of even date herewith relating to the Crown Sub-Debt entered
into by and among Crown Group, Inc., Borrower, Agent and the Banks.
"Debt" means all liabilities, obligations, and indebtedness of the
Borrower to any Person, of any kind or nature, now or hereafter owing, arising,
due or payable, howsoever evidenced, created, incurred, acquired, or owing,
whether primary, secondary, direct or indirect, contingent, fixed, or otherwise,
and including, without in any way limiting the generality of the foregoing: (i)
the Borrower's liabilities and obligations to trade creditors; (ii) all
Obligations; (iii) all obligations and liabilities to any Person secured by a
Lien on the Borrower's Property, even though the Borrower shall not have assumed
or become liable for the payment thereof; provided, however, that all such
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obligations and liabilities which are limited in recourse to such Property shall
be included in Debt only to the extent of the book value of such property as
would be shown on a balance sheet of the Borrower prepared in accordance with
GAAP; (iv) all obligations and liabilities created or arising under any lease or
conditional sale or other title retention agreement with respect to Property
used or acquired by the Borrower, even if the rights and remedies of the lessor,
seller, or lender thereunder are limited to repossession of such Property;
provided, however, that all such obligations and liabilities which are limited
in recourse to such Property shall be included in Debt only to the extent of the
book value of such property as would be shown on a balance sheet of the Borrower
prepared in accordance with GAAP; (v) all accrued pension fund and other
employee benefit plan obligations and liabilities; (vi) all obligations and
liabilities under Guaranties; (vii) Subordinated Debt; (viii) the Crown
Sub-Debt; and (ix) deferred tax liabilities.
"Debt For Borrowed Money" means, as to any Person, Debt for borrowed
money or as evidenced by notes, bonds, debentures or similar evidences of any
such Debt of such Person, the deferred and unpaid purchase price of any property
or business (other than trade accounts payable incurred in the ordinary course
of business and constituting current liabilities) and all obligations under
Capital Leases.
"Default" means any of the events specified in Section 8.01, whether or
not any requirement for the giving of notice, the lapse of time, or both, or any
other condition, has been satisfied.
"Distribution" means, in respect of any corporation: (a) the payment or
making of any dividend or other distribution of Property in respect of capital
stock (or any options or warrants for such stock) of such corporation, other
than distributions in capital stock (or any options or warrants for such stock);
or (b) the redemption or other acquisition by such corporation of any capital
stock (or any options or warrants for such stock) of such corporation unless
accomplished through the issuance of capital stock or as permitted pursuant to
Section 6.06.
"Dollars" and the sign "$" mean lawful money of the United States of
America.
"EBITDA" shall be defined as net income in accordance with GAAP, less
the decrease in loan loss reserves, plus the sum of interest expense,
depreciation, amortization, income taxes, and other non-cash expenses (including
increases to loan loss reserves) less any capital distributions.
"Eligible Vehicle Contracts" means those Vehicle Contracts which the
Agent, in its reasonable discretion, deems eligible (which shall be presumed
unless the Agent expressly states otherwise from time to time) and which,
without limiting the Agent's discretionary rights, satisfy as of the date of
determination all of the following requirements as determined by the Agent in
its reasonable discretion:
(a) the Vehicle Contract strictly complies with all of the
Borrower's warranties and representations contained therein;
(b) (i) for any Vehicle Contract that requires weekly payments
from the Contract Debtor, no more than four (4) payments may be contractually
delinquent, and (ii) for any other Vehicle Contract, no payment due under the
Vehicle Contract is more than the lesser of thirty (30) days or four (4) weeks
contractually delinquent;
(c) except as provided in clause (b) of this definition,
neither the Borrower nor the Contract Debtor is in default under the terms of
the Vehicle Contract.
(d) the Borrower has not granted to the Contract Debtor any
extension of time for the payment of any sum due under the Vehicle Contract
except pursuant to a Contract which has been modified in a way that Agent, in
its reasonable discretion, deems acceptable (which shall be presumed unless the
Agent expressly states otherwise from time to time);
(e) the Vehicle Contract is not subject to any asserted
defense, counterclaim, offset, discount, or allowance;
(f) the terms of the Vehicle Contract and all related
documents and instruments comply in all respects with all requirements of law;
(g) the Contract Debtor is not an Affiliate (but may be an
employee; provided that employee debt shall not exceed one half of one percent
(.5%) of Net Eligible Contract Payments ) of the Borrower;
(h) the creditworthiness of the Contract Debtor is acceptable
to the Agent (which shall be presumed unless the Agent expressly states
otherwise from time to time) and the Vehicle Contract and Contract Debtor
conform to the Credit Guidelines;
(i) the Contract Debtor is not subject to a bankruptcy or
insolvency proceeding under Federal law or any similar proceeding under state
law;
(j) the Contract Debtor is a resident of the continental
United States;
(k) the first scheduled payment pursuant to the terms of the
Vehicle Contract is, or was, due within forty-five (45) days following the
execution of the Vehicle Contract and all other payments are scheduled to be
made in substantially equal weekly, bi-weekly, monthly, or semi-monthly
installments in order to ratably amortize the Vehicle Contract over its
scheduled term;
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(l) the original term of the Vehicle Contract is not more than
thirty-six (36) months;
(m) repayment of the Vehicle Contract is secured by a first
priority, perfected interest in subject Vehicle, and Borrower has evidence of
such perfected lien on the Borrower's premises available to the Agent for
inspection in the form of either (i) the most current Certificate of Title
reflecting the Borrower as the lien holder or owner, or (ii) documentation from
the appropriate Governmental Authority reflecting Borrower's lien; or within
forty-five (45) calendar days of executing a Vehicle Contract, the Borrower
shall have in its possession evidence from the appropriate Governmental
Authority of perfection by that Government authority of a first priority lien in
favor of the Borrower on the Vehicle that is the subject of the Vehicle
Contract, and evidence of such perfected lien shall be on the Borrower's
premises available to the Agent for inspection in the form of either (i) a
Certificate of Title reflecting the Borrower as the lien holder, or owner or
(ii) documentation from the appropriate Government Authority reflecting
Borrower's lien.
(n) to the extent that the balance of the Vehicle Contract
includes sums representing the financing of a service contract, such service
contract shall be in compliance with all applicable consumer credit laws,
including any and all laws relating thereto;
(o) the Vehicle Contract .is not an Unacceptable Modified
Contract.
(p) the Vehicle Contract is originated in the ordinary course
of the Borrower's business; and
(q) the Vehicle which secures the Vehicle Contract is not
being held by the Borrower for more than thirty (30) days following
repossession.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and the regulations and published interpretations
thereof.
"Event of Default" means any of the events specified in Section 8.01,
provided that any requirement for the giving of notice, the lapse of time, or
both, or any other condition, has been satisfied.
"Fixed Charges" shall be defined as the sum of interest expense and
income taxes plus scheduled principal payments on Debt for Borrowed Money (other
than the Revolving Credit Loans and outstanding loans under the Crown Sub-Debt )
plus Capital Expenditures (except those financed with the proceeds of any Debt
for Borrowed Money as permitted hereunder) plus Distributions, in each instance
with respect to the applicable period.
"Fleeman Guaranty" means the guaranty of the Borrower in favor of Bill
Fleeman Revocable Trust u/d/t January 12, 1998, Billie Jean Fleeman Reeves
Children's Trust #1, Sharon Elizabeth Fleeman Greehey Children's Trust #1, John
Todd Fleeman Children's Trust #1, Bart Wayne Fleeman Children's Trust #1 and Nan
R. Smith (collectively, the "Sellers") guarantying repayment of an aggregate
Seven Million Five Hundred Thousand Dollars and NO/100 ($7,500,000) obligation
of Crown Group, Inc. to such Sellers.
"Funded Debt" means all outstanding Debt For Borrowed Money (not
including the Crown Sub Debt).
"GAAP" means generally accepted accounting principles in the United
States.
"Gross Contract Payments" means, as of the date of determination, (i)
with respect to an interest bearing Vehicle Contract the outstanding balance
thereof including all accrued but unpaid interest, fees, and other charges owing
by the Contract Debtor and (ii) with respect to a precomputed Vehicle Contract
the outstanding balance thereof including all unearned interest, fees, and
charges owing by the Contract Debtor.
"Guarantor" means CROWN GROUP, INC., a Texas corporation.
"Guaranty" means the Guaranty in substantially the form of Exhibit "B"
to be delivered by the Guarantor under the terms of this Agreement.
"Interest Period" means, with respect to any LIBOR Loan, the period
commencing on the date such Loan is made and ending, as the Borrower may select,
pursuant to Section 2.04, on the numerically corresponding day in the first,
second, third, sixth, ninth, or twelfth calendar month thereafter, except that
each such Interest Period that commences on the last Business Day of a calendar
month (or on any day for which there is no numerically corresponding day in the
appropriate subsequent calendar month) shall end on the last Business Day of the
appropriate subsequent calendar month; provided that all of the foregoing
provisions relating to Interest Periods are subject to the following:
(a) No Interest Period may extend beyond the Termination Date; and
(b) If an Interest Period would end on a day that is not a Business
Day, such Interest Period shall be extended to the next Business Day
unless such Business Day would fall in the next calendar month, in
which event such Interest Period shall end on the immediately preceding
Business Day.
"Lending Office" means, with respect to any Bank, for each type of
Loan, the Lending Office of such Bank (or of an affiliate of such Bank)
designated for such type of Loan on the signature pages hereof or such other
office of such Bank (or of an affiliate of such
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Bank) as that Bank may from time to time specify to the Borrower and the Agent
as the office at which its Loans of such type are to be made and maintained.
"LIBOR Loan" means any Loan when and to the extent that the interest
rate therefor is determined by reference to the LIBOR Rate.
"LIBOR Rate" means a fluctuating interest rate per annum (rounded
upward, if necessary, to the nearest 1/100 of 1%) as in effect from time to
time, which interest rate per annum shall at all times be equal to the London
Interbank Offered Rate per annum set forth in the "Money Rates" section of the
Wall Street Journal on the day the Interest Rate Election Notice is received by
Agent for thirty (30) day interest periods, as elected by Borrower in the
Interest Rate Election Notice. If Borrower fails to make a subsequent election
within two (2) Business Days prior to the end of an applicable period, the rate
shall automatically revert to the Prime Rate. If the information is unavailable
from such service, the rate shall be determined by the Agent from information
supplied to Agent by a nationally recognized reporting service for similar
information acceptable to Agent. Agent shall promptly confirm to Borrower in
writing the LIBOR Rate.
"Lien" means any mortgage, deed of trust, pledge, security interest,
hypothecation, assignment, deposit arrangement, encumbrance, lien (statutory or
other), of preference, priority, or other security agreement or preferential
arrangement, charge, or encumbrance of any kind or nature whatsoever (including,
without limitation, any conditional sale or other title retention agreement, any
financing lease having substantially the same economic effect as any of the
foregoing, and the filing of any financing statement under the Uniform
Commercial Code or comparable law of any jurisdiction to evidence any of the
foregoing).
"Loan" means a Revolving Credit Loan.
"Loan Document(s)" means this Agreement, the Note, the Security
Agreement, and the Guaranty.
"Majority Banks" means at any time the Banks holding at least sixty-six
percent (66%) of the then aggregate unpaid principal amount of the Notes held by
the Banks.
"Material Adverse Effect" means a material adverse change in, or a
material adverse effect upon, the operations, business, properties, condition
(financial or otherwise) or prospects of the Borrower or the Collateral.
"Multiemployer Plan" means a Plan described in Section 4001(a)(3) of
ERISA.
"Net Balance" means, as of the date of determination, the Gross
Contract Payments of a Vehicle Contract less all unearned interest, fees, and
charges (but including any service contract amount included therein) owing by
the Contract Debtor.
"Net Charge-Offs" is defined for any period as the aggregate amount of
all unpaid principal balances (including any service contract amounts included
therein) due under Vehicle Contracts which have been charged off by the Borrower
during such period, including the principal balances due under all Vehicle
Contracts where the Vehicle has been repossessed by Borrower during such period
reduced by the amount of the wholesale value of each repossessed vehicle.
"Net Charge-Off Percent" calculated as of the last day of each month,
is defined as the Average Net Charge-Offs divided by the Average Net Balance
(vehicle notes) multiplied by twelve (12). For example, if the Average Net
Charge-Offs were $1,200,000, and the Average Net Balance was $67,000,000 the Net
Charge-Off Percent would be 21.49% ($1,200,000 / $67,000,000 x 12).
"Net Eligible Contract Payments" means, as of the date of
determination, the remainder of (a) the Gross Contract Payments (including any
service contract amounts included therein) owing under all Eligible Vehicle
Contracts, minus (b) the aggregate amount, to the extent included within the
definition of Gross Contract Payments, of all unearned interest, fees, and
charges applicable to such Eligible Vehicle Contracts.
"Note(s)" means the promissory notes described in Section 2.07 hereof.
"Obligations" means all present and future loans, advances,
liabilities, obligations, covenants, duties, and debts owing by the Borrower to
the Agent and/or any Bank arising under or pursuant to this Agreement or any of
the other Loan Documents, whether or not evidenced by any note, or other
instrument or document, whether arising from an extension of credit, opening of
a letter of credit, acceptance, loan, guaranty, indemnification or otherwise,
whether direct or indirect (including, without limitation, those acquired by
assignment from others, and any participation by the Agent and/or any Bank in
the Borrower's debts owing to others), absolute or contingent, due or to become
due, primary or secondary, as principal or guarantor, and including, without
limitation, all principal, interest, charges, expenses, fees, attorneys' fees,
filing fees and any other sums chargeable to the Borrower hereunder or under any
of the other Loan Documents.
"PBGC" means the Pension Benefit Guaranty Corporation or any entity
succeeding to any or all of its functions under ERISA.
"Past Due Percent" is defined as the percent, calculated as of the last
day of each month for the four (4) month period then ending, equal to (a) the
Net Balances owing under all Vehicle Contracts (excluding Vehicle Contracts
charged-off) 30 days or more past due calculated as of the last day of each
month for the four (4) month period then ending or where the Contract Debtor is
subject to a bankruptcy or insolvency proceeding under Federal law or any
similar proceeding under state law, divided by (b) the Net Balances owing
Page 5
under all Vehicle Contracts (excluding Vehicle Contracts charged-off) calculated
as of the last day of each month for the four (4) month period then ending. For
example, if, as of the last day of the previous four (4) months, Net Balances
were $71,000,000, $73,000,000, $75,000,000 and $75,500,000 and on the same date
the amount of Net Balances more than 30 days past due was $4,000,000,
$4,000,000, $5,000,000 and $5,000,000, the Past Due Percent would be 6.11%
($18,000,000/$294,500,000).
"Payment Account" means each bank account established pursuant to
Section 5.15, to which the funds of the Borrower (including, without limitation,
collections of payments relating to Vehicle Contracts and other Collateral) are
deposited or credited, and which is maintained in the name of the Borrower on
terms acceptable to the Agent.
"Person" means an individual, partnership, corporation, business trust,
joint stock company, trust, unincorporated association, joint venture,
governmental authority, or other entity of whatever nature.
"Plan" means any pension plan which is covered by Title IV of ERISA and
in respect of which the Borrower or a Commonly Controlled Entity is an
"employer" as defined in Section 3(5) of ERISA.
"Prime Loan" means any Loan when and to the extent that the interest
rate therefor is determined by reference to the Prime Rate.
"Prime Rate" means a fluctuating interest rate per annum as in effect
from time to time, which interest rate per annum shall at all times be equal to
the rate of interest announced publicly from time to time (whether or not
charges in each instance), by J. P. Morgan Chase & Co. ("Rate Bank"), as its
base rate or general reference rate. Each change in the Prime Rate (or any
component thereof) shall become effective hereunder without notice to Maker
(which notice is hereby expressly waived by Maker), on the effective date of
each such change. Should the Rate Bank abolish or abandon the practice of
announcing or publishing a Prime Rate, then the Prime Rate used during the
remaining term of this Note shall be that interest rate or other general
reference rate then in effect at the Rate Bank which, from time to time, in the
reasonable judgment of Agent, most effectively approximates the initial
definition of the "Prime Rate." Borrower acknowledges that Bank may, from time
to time, extend credit to other borrowers at rates of interest varying from, and
having no relationship to, the Prime Rate. The rate of interest payable upon the
indebtedness evidenced by the Note shall not, however, at any time exceed
maximum rate of interest permitted under the laws of the State of Arkansas for
loans of the type and character evidenced by the Note.
"Principal Office" means the Agent's office at P.O. Box 1407,
Fayetteville, Arkansas 72702-1404.
"Prohibited Transaction" means any transaction set forth in Section 406
of ERISA or Section 4975 of the Code.
"Pro Rata Share" means the proportion which each Bank's commitment
bears to the total amount of all the Banks' commitments at the time of
determination thereof.
"Regulation D" means Regulation D of the Board of Governors of the
Federal Reserve System as amended or supplemented from time to time.
"Reportable Event" means any of the events set forth in Section 4043 of
ERISA.
"Repossession Percent" is defined as the percent, as calculated as of
the last day of each month, equal to (a) the repossession value of all Vehicles
which the Borrower has repossessed and which, as of the last day of the four (4)
month period then ending, was reflected as assets on the Borrower's books
divided by (b) the Net Balance owing under all Vehicle Contracts (excluding
Vehicle Contracts charged-off) outstanding as of the last day of each of those
four (4) months. For example, if 10 Vehicles having a total repossession value
of $200,000 had at the end of each month been repossessed by Borrower and were
reflected as assets on the books of Borrower at the end of each of those four
(4) months and the Net Balance were $64,000,000, $65,000,000, $66,000,000 and
$67,000,000 at the end of such months, the Repossession Percent would be 0.31%
($800,000/$262,000,000.)
"Revolving Credit Loans" shall have the meaning assigned to such term
in Section 2.01.
"Security Agreement" means the Security Agreement in substantially the
form of Exhibit "C", to be delivered by the Borrower under the terms of this
Agreement.
"Security Documents" means all security agreements, chattel mortgages,
deeds of trust, mortgages, or other security instruments, guaranties, sureties,
and agreements of every type and nature (including Certificates of Title)
securing the obligations of Contract Debtors under Contracts.
"Subordinated Debt" means all debt of the Borrower which (a) is
subordinated to the Obligations pursuant to a written subordination agreement
the terms of which are satisfactory to the Agent in its sole and absolute
discretion and (b) has a then-remaining term to maturity in excess of twelve
(12) months. Subordinated Debt includes the Crown Sub-Debt.
"Subsidiary" means, as to the Borrower, a corporation of which shares
of stock having ordinary voting power (other than stock having such power only
by reason of the happening of a contingency) to elect a majority of the board of
directors or other managers of such corporation are at the time owned, or the
management of which is otherwise controlled, directly, or indirectly through one
or more intermediaries, or both, by the Borrower.
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"Termination Date" means November_____, 2003.
"Total Facility" means thirty-nine million and five hundred thousand
dollars and NO/100 ($39,500,000).
"Unacceptable Modified Contract" means a Contract which has been
modified in a way that the Agent in its reasonable discretion deems unacceptable
and accordingly ineligible. Without intending to limit the Agent's discretion,
any Contract which was more than thirty (30) days contractually delinquent but
was subsequently modified so as to eliminate the delinquency shall be considered
as unacceptable. Notwithstanding the previous sentence, in the event four
consecutive full payments are made on any Unacceptable Modified Contract and
such Unacceptable Modified Contract is not then in any respect delinquent, such
Unacceptable Modified Contract shall at such time no longer be considered as an
Unacceptable Modified Contract. After the Closing Date, Agent in its reasonable
discretion may limit the number of times any Unacceptable Modified Contract
becomes acceptable to twice, by giving notice to Borrower. Upon such notice, ,
no contract which was at one time unacceptable shall thereafter be reclassified
as acceptable more than twice during the term on such Contract. Additionally,
the Borrower may change the monthly due date by not more than fifteen (15) days
with respect to a Contract to coincide with a Contract Debtor's pay date and
such adjustment to the Contract shall not by itself render the Contract as
unacceptable.
"Vehicle" means any new or used, two-axled, automobile or light-duty
truck, together with all accessions, parts and equipment sold or financed in
connection therewith.
"Vehicle Contract" means a Contract which arises from an installment
sale of a Vehicle.
1.02 SECTION. ACCOUNTING TERMS. All accounting terms not specifically defined
herein shall be construed in accordance with GAAP consistent with those applied
in the preparation of the financial statements referred to in Section 4.04, and
all financial data submitted pursuant to this Agreement shall be prepared in
accordance with such principles.
2 ARTICLE
AMOUNT AND TERMS OF THE LOANS
SECTION 2.01. REVOLVING CREDIT. Each Bank severally agrees, on the terms and
conditions hereinafter set forth, to make loans (the "Revolving Credit Loans")
to the Borrower from time to time during the period from the date of this
Agreement up to but not including the Termination Date in an aggregate principal
amount not to exceed at any time outstanding the amount set opposite such Bank's
name below (such Bank's "Commitment"):
<Table>
<Caption>
Name of Bank Amount
------------ ------
SUPERIOR FEDERAL BANK $5,000,000
GREAT SOUTHERN BANK $5,000,000
COMMUNITY BANK $5,000,000
ARKANSAS STATE BANK $2,000,000
BANK OF ARKANSAS, N.A. $1,000,000
BANK OF OKLAHOMA, N.A. $19,000,000
Total *$37,000,000
</Table>
* After the Additional Lender Commitment Date, the total will increase
to $39,500,000.
provided, that the aggregate outstanding principal amount of advances at any
time outstanding shall not exceed the lesser of: (i) $37,000,000 prior to the
Additional Lender Commitment Date, and $39,500,000 after the Additional Lender
Commitment Date; or (ii) the Borrowing Base. Such Borrowing Base shall be
computed on a monthly basis, and Borrower agrees to provide Agent, on or before
the 15th of each month with regard to the immediately preceding month (or more
frequently as reasonably required by Agent from time to time), all information
requested in connection therewith, including without limitation the Borrowing
Base Certificate. In the event that the Borrowing Base is less than the
Aggregate Revolver Outstanding , the Borrower shall immediately notify Agent of
such situation and shall, within five (5) Business Days of the imbalance, either
(i) reduce the amount of the outstanding balances to bring such amounts within
the formulas prescribed, or (ii) provide additional Eligible Vehicle Contracts,
without any additional advance being made by any Bank with respect thereto,
necessary to comply with the formulas required herein. Each Loan made in respect
of the Revolving Credit Loans shall be made by each Bank in its Pro Rata Share.
Within the limits of the Commitment, the Borrower may borrow, repay and reborrow
under this Section 2.01. On such terms and conditions, the Loans may be
outstanding as Prime Loans or LIBOR Loans. Each type of Loan shall be made and
maintained at such Bank's Lending Office for such type of Loan. The failure of
any Bank to make any requested Revolving Credit Loan to be made by it on the
date specified for such Loan shall not relieve any other Bank of its obligation
(if any) to make such Loan on such date, but no Bank shall be responsible for
the failure of any other Bank to make such Loans to be made by such other Bank.
SECTION 2.02. NOTICE AND MANNER OF BORROWING. The Borrower shall give the Agent
irrevocable written notice of any Revolving Credit Loans under this Agreement,
not later than 12:00 noon (central time) on the requested funding date before
each Revolving Credit Loan, specifying: (1) the date of such Loan; (2) the
amount of such Loan; (3) the type of Loan; and (4) in the case of a LIBOR Loan,
the duration of the Interest Period applicable thereto. The Agent shall promptly
notify the Paying Agent and each Bank of each such notice. Not later than
2:00 p.m. (Central time) on the date of such Revolving Credit Loans, each Bank
will make available to the Paying Agent in
Page 7
immediately available funds, such Bank's Pro Rata Share of such Revolving Credit
Loans. After the Paying Agent's receipt of such funds, not later than 4:30 p.m.
(Central time) on the date of such Revolving Credit Loans and upon fulfillment
of the applicable conditions set forth in Article III, the Paying Agent will
make such Revolving Credit Loans available to the Borrower in immediately
available funds by crediting the amount thereof to the Borrower's account with
the Agent.
2.03 SECTION. NON-RECEIPT OF FUNDS BY AGENT. Unless the Agent and Paying Agent
shall have received notice from a Bank prior to the date on which such Bank is
to provide funds to the Paying Agent for a Loan to be made by such Bank that
such Bank will not make available to the Paying Agent such funds, the Paying
Agent may assume that such Bank has made such funds available to the Paying
Agent on the date of such Loan in accordance with Section 2.04 and the Paying
Agent in its sole discretion may, but shall not be obligated to, in reliance
upon such assumption, make available to the Borrower on such date a
corresponding amount. If and to the extent such Bank shall not have so made such
funds available to the Paying Agent, such Bank agrees to repay to the Paying
Agent forthwith on demand such corresponding amount together with interest
thereon, for each day from the date such amount is made available to the
Borrower until the date such amount is repaid to the Paying Agent, at the
customary rate set by the Paying Agent for the correction of errors among banks
for three Business Days and thereafter at the Prime Rate. If such Bank shall
repay to the Paying Agent such corresponding amount, such amount so repaid shall
constitute such Bank's Loan for purposes of this Agreement. If such Bank does
not pay such corresponding amount forthwith upon the Paying Agent's demand
therefor, the Paying Agent shall promptly notify the Borrower, and the Borrower
shall immediately pay such corresponding amount to the Paying Agent with
interest thereon, for each day from the date such amount is made available to
the Borrower until the date such amount is repaid to the Paying Agent, at the
rate of interest applicable at the time to such proposed Loan.
Unless the Agent and Paying Agent shall have received notice from the
Borrower prior to the date on which any payment is due to the Banks hereunder
that the Borrower will not make such payment in full, the Agent may assume that
the Borrower has made such payment in full to the Paying Agent on such date and
the Agent and the Paying Agent in its sole discretion may, but shall not be
obligated to, 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 the Borrower shall not have so made such payment in full to the
Paying Agent, each Bank shall repay to the Paying 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 the Paying Agent, at the customary rate set by the Paying
Agent for the correction of errors among banks for three (3) Business Days and
thereafter at the Prime Rate.
SECTION 2.04. SETTLEMENT. It is agreed that each Bank's funded portion
of the Revolving Credit Loan is intended by the Banks to be equal at all times
to such Bank's Pro Rata Share of the outstanding Revolving Credit Loans.
Notwithstanding such agreement, the Paying Agent, and the other Banks agree
(which agreement shall not be for the benefit of or enforceable by the Borrower)
that in order to facilitate the administration of this Agreement and the other
Loan Documents, settlement among them as to the Revolving Credit Loans shall
take place on a periodic basis in accordance with the following provisions:
(i) The Paying Agent shall request settlement ("Settlement")
with the Banks on a weekly basis, or on a more frequent basis if so determined
by the Paying Agent, (1) with respect to each outstanding Loan, and (2) with
respect to collections received, in each case, by notifying the Banks of such
requested Settlement by telecopy, telephone, or other similar form of
transmission, of such requested Settlement, no later than 10:00 a.m. (Tulsa,
Oklahoma time) on the date of such requested Settlement (the "Settlement Date").
Each Bank shall make the amount of such Lender's Pro Rata Share of the
outstanding principal amount of the Loan with respect to which Settlement is
requested available to the Paying Agent in same day funds to such account of the
Paying Agent as the Paying Agent may designate, not later than 12:00 noon
(Tulsa, Oklahoma time), on the Settlement Date applicable thereto, regardless of
whether the applicable conditions precedent set forth in Article III have then
been satisfied. Such amounts made available to the Paying Agent shall be applied
against the amount of the applicable loan and, together with the portion of such
Loan representing Bank's Pro Rata Share thereof, shall constitute Revolving
Credit Loans of such Banks. If any such amount is not made available to the
Paying Agent by any Bank on the Settlement Date applicable thereto, the Paying
Agent shall be entitled to recover such amount on demand from such Bank together
with interest thereon at the Federal Funds Rate for the first three (3) days
from and after such demand and thereafter at the Interest Rate then applicable
to the Revolving Credit Loans.
(ii) Notwithstanding the foregoing, not more than one (1)
Business Day after demand is made by the Paying Agent, each other Bank shall
irrevocably and unconditionally purchase and receive from the Paying Agent,
without recourse or warranty, an undivided interest and participation in such
Revolving Credit Loan to the extent of such Bank's Pro Rata Share thereof by
paying to the Paying Agent, in same day funds, an amount equal to such Bank's
Pro Rata Share of such Revolving Credit Loan. If such amount is not in fact made
available to the paying Agent by any Bank, the Paying Agent shall be entitled to
recover such amount on demand from such Bank together with interest thereon at
the Federal Funds Rate for the first three (3) days from and after such demand
and thereafter at the Interest Rate then applicable to the Revolving Credit
Loans.
(iii) From and after the date, if any, on which any Bank
purchases an undivided interest and participation in any Revolving Credit Loan
pursuant to subsection (ii) above, the Paying Agent shall, subject to
reimbursement to Paying Agent for any amounts due from such Bank, promptly
distribute to such Bank at such address as such Bank may request in writing,
such Bank's Pro Rata Share of all payments of principal and interest and all
proceeds of Collateral received by the Paying Agent in respect of such Revolving
Credit Loan.
(iv) The Paying Agent shall record on its books the principal
amount of the Revolving Loans owing to each Bank. In addition, each Bank is
authorized, at such Bank's option, to note the date and amount of each payment
or prepayment of principal of
Page 8
such Bank's Revolving Credit Loans in its books and records, including computer
records, such books and records constituting rebuttably presumptive evidence,
absent manifest error, of the accuracy of the information contained therein.
(v) All Revolving Credit Loans shall be made by the Banks
simultaneously and in accordance with their Pro Rata Shares. It is understood
that (a) no Bank shall be responsible for any failure by any other Bank to
perform its obligation to make any Revolving Credit Loans hereunder, (b) no
failure by any Banks to perform its obligation to make any Revolving Credit Loan
hereunder shall excuse any other Bank from its obligation to make any Revolving
Credit Loans hereunder, and (c) the obligations of each Bank hereunder shall be
several, not joint and several.
SECTION 2.05. INTEREST. The Borrower shall pay interest to the Agent
for the account of each Bank on the outstanding and unpaid principal amount of
that Bank's Revolving Credit Loans made under this Agreement at a rate per
annum, as follows:
(1) For a Prime Loan at the Adjusted Prime Rate; and
(2) For a LIBOR Loan at the Adjusted LIBOR Rate.
The Adjusted Prime Rate and Adjusted LIBOR Rate shall be determined in
accordance with the following:
<Table>
<Caption>
BORROWER'S RATIO OF ADJUSTED ADJUSTED
FUNDED DEBT TO EBITDA LIBOR RATE PRIME RATE
- ------------------------------------------------------ ------------------------------ ------------------------------
Greater than or equal to 2.5 LIBOR Rate plus 3.9% Prime Rate plus 1.0%
Greater than or equal to 1.7 but less than 2.5 LIBOR Rate plus 3.65% Prime Rate plus .75%
Less than 1.7 LIBOR Rate plus 3.4% Prime Rate plus .5%
</Table>
Any change in the interest rate based on the Prime Rate resulting from
a change in the Prime Rate shall be effective as of the opening of business on
the day on which such change in the Prime Rate becomes effective. The ratio of
Funded Debt to EBITDA shall be calculated based upon the immediately preceding
twelve (12) consecutive full months.
Interest on each Prime Loan and LIBOR Loan shall be calculated on the
basis of the actual number of days elapsed.
Interest on the Loans shall be paid in immediately available funds to
the Agent at its Principal Office for the account of the applicable Lending
Office of each Bank as follows:
(1) For each Prime Loan on the first day of each month commencing the
first such date after such Loan and at maturity for such Loan; and
(2) For each LIBOR Loan, on the last day of the Interest Period with
respect thereto and, in the case of an Interest Period greater than
three months, at three (3) month intervals after the first day of such
Interest Period.
SECTION 2.06. INTEREST RATE DETERMINATION. The Agent shall give prompt
notice to the Borrower and the Banks of the applicable interest rate determined
by the Agent pursuant to the terms of this Agreement.
SECTION 2.07. UNUSED PORTION FEE. The Borrower agrees to pay to the
Agent for the account of each Bank a commitment fee on the average daily unused
portion of such Bank's Commitment from the date of this Agreement until the
Termination Date at the rate of one-eighth of one percent (1/8 of 1%) per annum,
payable on the last day of each quarter during the term of such Bank's
Commitment, commencing November 31, 2001, and ending on the Termination Date.
Upon receipt of any commitment fees, the Agent will promptly thereafter cause to
be distributed such payments to the Banks in the proportion that each Bank's
unused Commitment bears to the total of all the Banks' unused Commitments;
provided, that any Additional Lender will not receive any payment of Unused
Portion Fees earned or paid prior to the date this Agreement is executed by said
Additional Lender.
SECTION 2.08. NOTES. All Loans made by each Bank under this Agreement
shall be evidenced by, and repaid with interest in accordance with, a promissory
note of the Borrower to Bank in the amount of the Bank's Commitment, in form and
content as set forth on Exhibit "D-1" through "Exhibit D-7" hereto, duly
completed, dated the date of this Agreement or, with respect to the Note to an
Additional Lender, a date to be determined, and payable to such Bank for the
account of its applicable Lending Office, such Note to represent the obligation
of the Borrower to repay the Loans. Each Bank is hereby authorized by the
Borrower to endorse on the schedule attached to the Note held by it the amount
and type of each Revolving Credit Loan and each renewal, conversion, and payment
of principal amount received by such Bank for the account of its applicable
Lending Office on account of its Revolving Credit Loans, which endorsement
shall, in the absence of manifest error, be conclusive as to the outstanding
balance of the Revolving Credit Loans made by such Bank; provided, however, that
the failure to make such notation with respect to any Revolving Credit Loan or
renewal, conversion, or payment shall not limit or otherwise affect the
obligations of the Borrower under this Agreement or the Note held by such Bank.
The aggregate principal balance and all accrued interest of all Loans
shall be repaid on the Termination Date.
Page 9
SECTION 2.09. METHOD OF PAYMENT. The Borrower shall make each payment
under this Agreement and under the Notes not later than 5:00 p.m. (Central time)
on the date when due in lawful money of the United States to the Agent at its
Principal Office for the account of the applicable Lending Office of each Bank
in immediately available funds. The Agent will promptly thereafter cause to be
distributed (1) such payments of principal and interest in like funds to each
Bank for the account of its applicable Lending Office in the proportion that
such Bank's Loans to which the payment applies bears to the total amount of all
Banks' Loans to which the payment applies and (2) other fees payable to any Bank
to be applied in accordance with the terms of this Agreement; provided, that any
Additional Lender will not receive any payment of principal, interest or fees
accrued or paid by Borrower prior to the date this Agreement is executed by said
Additional Lender. The Borrower hereby authorizes each Bank, if and to the
extent payment is not made when due under this Agreement or under the Notes, to
charge from time to time against any account of the Borrower with such Bank any
amount as due. Whenever any payment to be made under this Agreement or under the
Notes shall be stated to be due on a day other than a Business Day, such payment
shall be made on the next succeeding Business Day, and such extension of time
shall be included in the computation of the payment of interest and the
commitment fee, as the case may be, except, in the case of a LIBOR Loan, if the
result of such extension would be to extend such payment into another calendar
month, such payment shall be made on the immediately preceding Business Day.
SECTION 2.10. USE OF PROCEEDS. The proceeds of the Loan hereunder shall
be used by the Borrower to finance working capital requirements and repay
certain existing indebtedness. The Borrower will not, directly or indirectly,
use any part of such proceeds for the purpose of purchasing or carrying any
margin stock within the meaning of Regulation U of the Board of Governors of the
Federal Reserve System or to extend credit to any Persons for the purpose of
purchasing or carrying any such margin stock, or for any purpose which violates,
or is inconsistent with, Regulation X of such Board of Governors.
SECTION 2.11. ILLEGALITY. Notwithstanding any other provision in this
Agreement, if any Bank determines that 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 such
Bank (or its Lending Office) 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 such Bank (or its Lending
Office) to maintain or fund its LIBOR Loans, then upon notice to the Borrower
(with a copy to the Agent) by such Bank the outstanding principal amount of all
LIBOR Loans, together with interest accrued thereon, and any other amounts
payable to each Bank under this Agreement shall be repaid (a) immediately upon
demand of such Bank if such change or compliance with such request, in the
judgment of such Bank, requires immediate repayment, or (b) at the expiration of
the last Interest Period to expire before the effective date of any such change
or request.
SECTION 2.12. DISASTER. Notwithstanding anything to the contrary
herein, if the Agent determines (which determination shall be conclusive) that
the relevant rates of interest referred to in the definition of LIBOR Rate upon
the basis of which the rate of interest for any such type of Loan is to be
determined do not accurately cover the cost to the Banks of making or
maintaining such type of Loans, then the Agent shall forthwith give notice
thereof to the Borrower, whereupon (a) the obligation of the Banks to make LIBOR
Loans shall be suspended until the Agent notifies the Borrower that the
circumstances giving rise to such suspension no longer exist, and (b) the
Borrower shall repay in full the then outstanding principal amount of each LIBOR
Loan together with accrued interest thereon, on the last day of the then current
Interest Period applicable to such Loan.
SECTION 2.13. INCREASED COST. From time to time upon notice to the
Borrower from a Bank (with a copy to the Agent) the Borrower shall pay to the
Agent for the account of the applicable Bank such amounts as any Bank may
determine to be necessary to compensate such Bank for any costs incurred by such
Bank which such Bank reasonably determines are attributable to its making or
maintaining any LIBOR Loan hereunder or its obligation to make any such Loan
hereunder, or any reduction in any amount receivable by such Bank under this
Agreement or its Note in respect of any such Loans or such obligation (such
increases in costs and reductions in amounts receivable being herein called
"Additional Costs"), resulting from any change after the date of this Agreement
in U.S. federal, state, municipal, or foreign laws or regulations (including
Regulation D), or the adoption or making after such date of any interpretations,
directives, or requirements applying to a class of banks including such Bank of
or under U.S. federal, state, municipal, or foreign laws or regulations (whether
or not having the force of law) by any court or governmental or monetary
authority charged with the interpretation or administration thereof ("Regulatory
Change"), which: (1) changes the basis of taxation of any amounts payable to
such Bank under this Agreement or its Note in respect of any of such Loans
(other than taxes imposed on the overall net income of such Bank or of its
Lending Office for any of such Loans by the jurisdiction where the Principal
Office or such Lending Office is located); or (2) imposes or modifies any
reserve, special deposit, compulsory loan, or similar requirements relating to
any extensions of credit or other assets of, or any deposits with or other
liabilities of, such Bank pertaining to this Agreement (including any of such
Loans or any deposits referred to in the definition of LIBOR Rate); or (3)
imposes any other condition affecting this Agreement or its Note (or any of such
extensions of credit or liabilities). Such Bank will notify the Borrower (with a
copy to the Agent) of any event occurring after the date of this Agreement which
will entitle such Bank to compensation pursuant to this Section 2.13 as promptly
as practicable after it obtains knowledge thereof and determines to request such
compensation.
Determinations by any Bank for purposes of this Section 2.13 of the
effect of any Regulatory Change on its costs of making or maintaining Loans or
on amounts receivable by it in respect of Loans, and of the additional amounts
required to compensate any such Bank in respect of any Additional Costs, shall
be conclusive, provided that such determinations are made on a reasonable basis.
SECTION 2.14. RISK-BASED CAPITAL. In the event that any Bank determines
that (1) compliance with any judicial, administrative, or other governmental
interpretation of any law or regulation or (2) compliance by such Bank or any
corporation controlling such Bank with any guideline or request from any central
bank or other governmental authority (whether or not having the force of law)
has the effect of requiring an increase in the amount of capital required or
expected to be maintained by such Bank or any corporation controlling such Bank,
and such Bank reasonably determines that such increase is based upon its
obligations hereunder, and other similar obligations, the
Page 10
Borrower shall pay to the Agent, for the account of the applicable Bank, such
additional amount as shall be reasonably determined by the Bank to be the amount
attributable to such Bank's obligations to the Borrower hereunder. Such Bank
will notify the Borrower (with a copy to the Agent) of any event occurring after
the date of this Agreement that will entitle such Bank to compensation pursuant
to this Section 2.14 as promptly as practicable after it obtains knowledge
thereof and determines to request such compensation.
Determinations by any Bank for purposes of this Section 2.14 of the
effect of any increase in the amount of capital required to be maintained by
such Bank and of the amount attributable to such Bank's obligations to the
Borrower hereunder shall be conclusive, provided that such determinations are
made on a reasonable basis.
SECTION 2.15. FUNDING LOSS INDEMNIFICATION. Upon notice to the Borrower
from a Bank (with a copy to the Agent) the Borrower shall pay to the Agent for
the account of the applicable Bank, such amount or amounts as shall be
sufficient (in the reasonable opinion of such Bank) to compensate it for any
loss, cost, or expense incurred as a result of:
(3) Any payment of a LIBOR Loan on a date other than the last day of
the Interest Period for such Loan including, but not limited to
acceleration of the Loans by the Agent pursuant to Section 8.01; or
(4) Any failure by the Borrower to borrow or convert, as the case may
be, a LIBOR Loan on the date for borrowing or conversion, as the case
may be, specified in the relevant notice under Section 2.02.
SECTION 2.16. TERMINATION FEE. The Borrower may terminate this
Agreement at any time upon not less than ten (10) Business Day's notice to Agent
of such intention, provided, that all monetary obligations (e.g. payment of
Notes) and any indemnification shall continue; and provided further that
Borrower agrees to pay to the Agent for the account of each Bank a termination
fee in an amount equal to .5% of the Commitment in the event the credit facility
is terminated for any reason prior to the one year anniversary date hereof;
provided, that no termination fee shall be payable for any prepayment if the
Borrower is required to make any payments under Sections 2.13 and/or 2.14.
SECTION 2.17. AUDIT FEES. The Borrower agrees to pay to the Agent all
costs and fees reasonably incurred by the Agent's internal auditors in
connection with quarterly audits of the Borrower performed by such auditors
during the term of this Agreement; provided that, prior to the occurrence of an
Event of Default, the Agent shall not be entitled to reimbursement for any such
costs and fees incurred in connection with audits in an amount greater than
$12,500 during any year (with each year beginning on the Closing Date or an
anniversary date thereof and ending twelve (12) months thereafter) of this
Agreement. A pro-rata portion of the audit fee shall be payable in arrears on
the first day of each month commencing with the month immediately following the
Closing Date. Notwithstanding the foregoing, upon the occurrence of any Event of
Default, the Borrower shall pay all of the Agent's costs incurred in connection
with the verification, audit, and inspection of the Collateral without regard to
the foregoing limitations.
SECTION 2.18. RIGHT TO CURE. The Agent may, in its discretion, pay any
amount or do any act required of the Borrower hereunder or under any other Loan
Document in order to preserve, protect, maintain or enforce the Obligations, the
Collateral or the Agent's Liens therein, which the Borrower fails to pay or do,
including, without limitation, payment of any judgment against the Borrower, any
insurance premium, any landlord's claim, any other Lien upon or with respect to
the Collateral. All payments that the Agent makes under this Section 2.18 and
all out-of-pocket costs and expenses that the Agent pays or incurs in connection
with any action taken by it hereunder shall be charged to the Borrower's Loan
Account as a Revolving Credit Loan. Any payment made or other action taken by
the Agent under this Section 2.18 shall be without prejudice to any right to
assert an Event of Default hereunder.
2 ARTICLE
CONDITIONS PRECEDENT
2.01 SECTION. CONDITIONS PRECEDENT TO INITIAL LOAN. The obligation of each Bank
to make its initial Loan to the Borrower is subject to the conditions precedent
that the Agent shall have received on or before the day of such Loan each of the
following, in form and substance satisfactory to the Agent and its counsel and
(except for the Notes) in sufficient copies for each Bank:
(1) NOTES. The Note of each Bank duly executed by the Borrower;
(2) SECURITY AGREEMENT. A Security Agreement duly executed by the
Borrower together with (a) Financing Statements (Form UCC-1) to be duly
filed under the Uniform Commercial Code of all jurisdictions necessary
or, in the opinion of any of the Banks, desirable to perfect the
security interest created by the Security Agreement; and (b) chattel
checks identifying all of the financing statements on file with respect
to the Borrower in all jurisdictions referred to under (a), indicating
that no party claims an interest in any of the Collateral;
(3) EVIDENCE OF ALL CORPORATE ACTION BY THE BORROWER. Certified (as of
the date of this Agreement) copies of all corporate action taken by the
Borrower, including resolutions of its Board of Directors, authorizing
the execution, delivery, and performance of the Loan Documents to which
it is a party and each other document to be delivered pursuant to this
Agreement;
(4) INCUMBENCY AND SIGNATURE CERTIFICATE OF BORROWER. A certificate
(dated as of the date of this Agreement) of the Secretary of the
Borrower certifying the names and true signatures of the officers of
the Borrower authorized to sign the Loan Documents to which it is a
party and the other documents to be delivered by the Borrower under
this agreement;
Page 11
(5) OPINION OF COUNSEL FOR BORROWER. A favorable opinion of counsel for
the Borrower, in substantially the form of Exhibit "E", and as to such
other matters as the Agent may reasonably request;
(6) GUARANTY. The Guaranty duly executed by the Guarantor;
(7) EVIDENCE OF ALL CORPORATE ACTION BY GUARANTOR. Certified (as of the
date of this Agreement) copies of all corporate action taken by the
Guarantor, including resolutions of its Board of Directors, authorizing
the execution, delivery, and performance of the Guaranty;
(8) INCUMBENCY AND SIGNATURE CERTIFICATE OF GUARANTOR. A certificate
(dated as of the date of this Agreement) of the Secretary of the
Guarantor certifying the names and true signatures of the officers of
the Guarantor authorized to sign the Guaranty;
(9) OPINION OF COUNSEL FOR GUARANTOR. A favorable opinion of counsel
for the Guarantor, in substantially the form of Exhibit "F", and as to
such other matters as the Agent may reasonably request; and
(10) OPINION OF AUDITOR FOR ACM. A letter from the auditor for ACM
stating it is the opinion of the auditor that the finance company
transaction is allowable based on auditor's understanding of Internal
Revenue Service regulations, in form and content acceptable to Agent.
2.02 SECTION. CONDITIONS PRECEDENT TO ALL LOANS. The obligation of each Bank to
make each Loan (including the initial Loan) shall be subject to the further
conditions precedent that on the date of such Loan:
(1) The following statements shall be true and correct:
(a) The representations and warranties contained in Article IV
of this Agreement, in Section 8 of the Security Agreement, and
in Sections 24 through 29 of the Guaranty are correct in all
material respects on and as of the date of such Loans as
though made on and as of such date other than any such
representation or warranty which relates to a specified prior
date and except to the extent the Agent and the Banks have
been notified in writing by the Borrower that any
representation or warranty is not correct and the Majority
Banks have explicitly waived in writing compliance with such
representation or warranty; and
(b) No Default or Event of Default has occurred and is
continuing, or would result from such Loans.
3 ARTICLE
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to each Bank that:
SECTION 3.01. INCORPORATION, GOOD STANDING, AND DUE QUALIFICATION. Each
Borrower and each of their respective Subsidiaries, is a corporation duly
incorporated, validly existing, and in good standing under the laws of the
jurisdiction of its incorporation; has the corporate power and authority to own
its assets and to transact the business in which it is now engaged or proposed
to be engaged in; and is duly qualified as a foreign corporation and in good
standing under the laws of each other jurisdiction in which such qualification
is required.
3.02 SECTION. CORPORATE POWER AND AUTHORITY. The execution, delivery, and
performance by the Borrower of the Loan documents to which each is a party have
been duly authorized by all necessary corporate action and do not and will not
(1) require any consent or approval of the stockholders of such corporation; (2)
contravene such corporation's charter or bylaws; (3) violate any provision of
any law, rule, regulation (including, without limitation, Regulations U and X of
the Board of Governors of the Federal Reserve System), order, writ, judgment,
injunction, decree, determination, or award presently in effect having
applicability to such corporation; (4) result in a breach of or constitute a
default under any indenture or loan or credit agreement or any other agreement,
lease, or instrument to which such corporation is a party or by which it or its
properties may be bound or affected; (5) result in, or require, the creation or
imposition of any Lien except as contemplated by this Agreement, upon or with
respect to any of the properties now owned or hereafter acquired by such
corporation; and (6) cause such corporation to be in default under any such law,
rule, regulation, order, writ, judgment, injunction, decree, determination, or
award or any such indenture, agreement, lease, or instrument.
3.03 SECTION. LEGALLY ENFORCEABLE AGREEMENT. This Agreement is, and each of the
other Loan Documents when delivered under this Agreement will be legal, valid,
and binding obligations of the Borrower enforceable against the Borrower in
accordance with their respective terms, except to the extent that such
enforcement may be limited by applicable bankruptcy, insolvency, and other
similar laws affecting creditors' rights generally.
3.04 SECTION. FINANCIAL STATEMENTS. The balance sheet of the Borrower as of
April 30, 2001, and the related statements of operations and stockholder's
equity of the Borrower for the fiscal year then ended, and the accompanying
footnotes, together with the opinion thereon, dated June 14, 2001, and the
interim balance sheet of the Borrower as of July 31, 2001, and the related
statement of operations for the three (3) month period then ended, copies of
which have been furnished to each Bank, are complete and correct and fairly
present the financial condition of the Borrower as of such dates and the results
of the operations of the Borrower for the periods
Page 12
covered by such statements, all in accordance with GAAP consistently applied
(except for the absence of footnotes for interim financial statements and
subject to year-end adjustments in the case of the interim financial
statements), and since July 31, 2001, there has been no material adverse change
in the condition (financial or otherwise), business, or operations of the
Borrower. There are no liabilities of the Borrower or any Subsidiary, fixed or
contingent, which are material and are not reflected in the financial statements
or in the notes thereto, other than liabilities arising in the ordinary course
of business since July 31, 2001. No information, exhibit, or report furnished by
the Borrower to any Bank in connection with the negotiation of this Agreement
contained any material misstatement of fact or omitted to state a material fact
or any fact necessary to make the statement contained therein not materially
misleading.
3.05 SECTION. LABOR DISPUTES AND ACTS OF GOD. Neither the business nor the
properties of the Borrower are affected by any fire, explosion, accident,
strike, lockout, or other labor dispute, drought, storm, hail, earthquake,
embargo, act of God or of the public enemy, or other casualty (whether or not
covered by insurance), which materially and adversely affect the business or the
operation of the Borrower.
3.06 SECTION. OTHER AGREEMENTS. Neither the Borrower nor any Subsidiary is a
party to any material indenture, loan, or credit agreement, or to any material
lease or other agreement or instrument or subject to any charter or corporate
restriction which is likely to have a material adverse effect on the business,
properties, assets, operations, or conditions, financial or otherwise, of the
Borrower or any Subsidiary or the ability of the Borrower to carry out its
obligations under the Loan Documents to which it is a party. Neither the
Borrower nor any Subsidiary is in default in any respect in the performance,
observance, or fulfillment of any of the obligations, covenants, or conditions
contained in any agreement or instrument material to its business to which it is
a party.
3.07 SECTION. LITIGATION. There is no pending or to the Borrower's knowledge
threatened action or proceeding against or affecting the Borrower or any of its
Subsidiaries before any court, governmental agency, or arbitrator, which likely
to, in any one case or in the aggregate, materially adversely affect the
financial condition, operations, properties, or business of the Borrower or any
Subsidiary or the ability of the Borrower to perform its obligations under the
Loan Documents to which it is a party.
3.08 SECTION. NO DEFAULTS ON OUTSTANDING JUDGMENTS OR ORDERS. The Borrower and
its Subsidiaries have satisfied all judgments, and neither the Borrower nor any
Subsidiary is in default with respect to any judgment, writ, injunction, decree,
rule, or regulation of any court, arbitrator, or federal, state, municipal, or
other governmental authority, commission, board, bureau, agency, or
instrumentality, domestic or foreign; provided that non-compliance with the
foregoing shall not constitute a Default if such non-compliance does not have a
material adverse effect on the financial condition or operation of the Borrower.
3.09 SECTION. OWNERSHIP AND LIENS. The Borrower and each Subsidiary have title
to, or valid leasehold interests in, all of their properties and assets, real
and personal, including the properties and assets and leasehold interests
reflected in the financial statements referred to in Section 4.04 (other than
any properties or assets disposed of in the ordinary course of business), and
none of the material properties or assets owned by the Borrower or any
Subsidiary and none of their leasehold interests is subject to any Lien, except
such as may be permitted pursuant to Section 6.01 of this Agreement.
3.010 SECTION. SUBSIDIARIES AND OWNERSHIP OF STOCK. Set forth in Exhibit "G" is
a complete and accurate list of the Subsidiaries of the Borrower, showing the
jurisdiction of incorporation of each and showing the percentage of the
Borrower's ownership of the outstanding stock of each Subsidiary. All of the
outstanding capital stock of each such Subsidiary has been validly issued, is
fully paid and nonassessable, and is owned by the Borrower free and clear of all
Liens.
3.011 SECTION. ERISA. Each Plan is in compliance in the material respects with
all applicable provisions of ERISA. Neither a Reportable Event nor a Prohibited
Transaction has occurred and is continuing with respect to any Plan; no notice
of intent to terminate a Plan has been filed, nor has any Plan been terminated;
no circumstances exist which constitute grounds entitling the PBGC to institute
proceedings to terminate, or appoint a trustee to administer, a Plan, nor has
the PBGC instituted any such proceedings; neither the Borrower nor any Commonly
Controlled Entity has completely or partially withdrawn from a Multiemployer
Plan; the Borrower and each Commonly Controlled Entity have met their minimum
funding requirements under ERISA with respect to all of their Plans and the
present value of all vested benefits under each Plan does not exceed the fair
market value of all Plan assets allocable to such benefits, as determined on the
most recent valuation date of the Plan and in accordance with the provisions of
ERISA; and neither the Borrower nor any Commonly Controlled Entity has incurred
any liability to the PBGC under ERISA which has resulted or could reasonably be
expected to result in a material adverse effect on the financial condition of
the Borrower.
3.012 SECTION. OPERATION OF BUSINESS. The Borrower and each of its Subsidiaries
possess all licenses, permits, franchises, patents, copyrights, trademarks, and
trade names, or rights thereto, to conduct their respective businesses
substantially as now conducted and as presently proposed to be conducted, the
absence of which could reasonably be expected to cause a Material Adverse Effect
and the Borrower and each of its Subsidiaries are not in violation of any valid
rights of others with respect to any of the foregoing which could reasonably be
expected to cause a Material Adverse Effect.
3.013 SECTION. TAXES. The Borrower and each of its Subsidiaries and the
Guarantor have filed all tax returns (federal, state, and local) required to be
filed and have paid all taxes, assessments, and governmental charges and levies
thereon to be due, including interest and penalties; and no audit is pending
with the Internal Revenue Service as of the Closing Date.
3.014 SECTION. DEBT. Exhibit "H" is a complete and correct list as of the
Closing Date of all credit agreements, indentures, guaranties, Capital Leases,
and other investments, agreements, and arrangements presently in effect and in
excess of $250,000 in each instance providing for or relating to extensions of
credit (including agreements and arrangements for the issuance of letters of
credit or for acceptance financing) in respect of which the Borrower or any
Subsidiary is in any manner directly or contingently obligated; and the
Page 13
maximum principal or face amounts of the credit in question, outstanding or to
be outstanding, are correctly stated, and all Liens of any nature given or
agreed to be given as security therefor are correctly described or indicated in
such Exhibit. Such Exhibit, however, shall not include real estate loans or
leases for car lot locations.
3.015 SECTION. ENVIRONMENT. The Borrower has duly complied with, and their
businesses, operations, assets, equipment, property, leaseholds, or other
facilities are in material compliance with, the provisions of all federal,
state, and local environmental, health, and safety laws, codes and ordinances
and all rules and regulations promulgated thereunder. The Borrower has been
issued and will maintain all material required federal, state, and local
permits, licenses, certificates, and approvals relating to (1) air emissions;
(2) discharges to surface water or groundwater; (3) noise emissions; (4) solid
or liquid waste disposal; (5) the use, generation, storage, transportation, or
disposal of toxic or hazardous substances or wastes (intended hereby and
hereafter to include any and all such materials listed in any federal, state, or
local law, code, or ordinance and all rules and regulations promulgated
thereunder as hazardous or potentially hazardous); or (6) other environmental,
health, or safety matters the absence of which could reasonably be expected to
cause a materially adverse effect. The Borrower has not received notice of, or
knows of, or suspects facts which might constitute any violations of any
federal, state, or local environmental, health, or safety laws, codes or
ordinances and any rules or regulations promulgated thereunder with respect to
its businesses, operations, assets, equipment, property, leaseholds, or other
facilities the existence of which could reasonably be expected to cause a
materially adverse effect. Except in accordance with a valid governmental
permit, license, certificate or approval, there has been no emission, spill,
release, or discharge into or upon (1) the air; (2) soils, or any improvements
located thereon; (3) surface water or groundwater; or (4) the sewer, septic
system or waste treatment, storage or disposal system servicing the premises, of
any toxic or hazardous substances or wastes at or from the premises the
existence of which could reasonably be expected to cause a materially adverse
effect. There has been no complaint, order, directive, claim, citation, or
notice by any governmental authority or any person or entity with respect to (1)
air emissions; (2) spills, releases, or discharges to soils or improvements
located thereon, surface water, groundwater or the sewer, septic system or waste
treatment, storage or disposal systems servicing the premises; (3) noise
emissions; (4) solid or liquid waste disposal; (5) the use, generation, storage,
transportation, or disposal of toxic or hazardous substances or waste; or (6)
other environmental, health, or safety matters affecting the Borrower or its
business, operations, assets, equipment, property, leaseholds, or other
facilities the existence of which could reasonably be expected to cause a
materially adverse effect. The Borrower does not have any material indebtedness,
obligation, or liability, absolute or contingent, matured or not matured, with
respect to the storage, treatment, cleanup, or disposal of any solid wastes,
hazardous wastes, or other toxic or hazardous substances.
4 ARTICLE
AFFIRMATIVE COVENANTS
So long as any Note shall remain unpaid or any Bank shall have any
Commitment under this Agreement, the Borrower will:
4.01 SECTION. MAINTENANCE OF EXISTENCE. Preserve and maintain, and cause each
Subsidiary to preserve and maintain, its corporate existence and good standing
in the jurisdiction of its incorporation, and qualify and remain qualified, as a
foreign corporation in each jurisdiction in which such qualification is
required.
4.02 SECTION. MAINTENANCE OF RECORDS. Keep, and cause each Subsidiary to keep,
adequate records and books of account, in which complete entries will be made in
accordance with GAAP consistently applied, reflecting all financial transactions
of the Borrower and its Subsidiaries.
4.03 SECTION. MAINTENANCE OF PROPERTIES. Maintain, keep, and preserve, and
cause each Subsidiary to maintain, keep, and preserve, all of its properties
(tangible and intangible) as is reasonably deems necessary or useful in the
proper conduct of its business in good working order and condition, ordinary
wear and tear excepted.
4.04 SECTION. CONDUCT OF BUSINESS. Continue, and cause each Subsidiary to
continue, to engage in an efficient and economical manner in a business of the
same general type as conducted by it on the date of this Agreement.
4.05 SECTION. MAINTENANCE OF INSURANCE. Maintain, and cause each subsidiary to
maintain, insurance with financially sound and reputable insurance companies or
associations in such amounts and covering such risks as are usually carried by
companies engaged in the same or a similar business and similarly situated,
which insurance may provide for reasonable deductibility from coverage thereof.
4.06 SECTION. COMPLIANCE WITH LAWS. Comply, and cause each Subsidiary to
comply, in all respects with all applicable laws, rules, regulations, and
orders, such compliance to include, without limitation, paying before the same
become delinquent all taxes, assessments, governmental charges imposed upon it
or upon its property.
4.07 SECTION. RIGHT OF INSPECTION. At any reasonable time and from time to
time, permit any Bank or any agent or representative thereof to examine and make
copies of and abstracts from the records and books of account of, and visit the
properties of, the Borrower and any Subsidiary, and to discuss the affairs,
finances, and accounts of the Borrower and any Subsidiary with any of their
respective officers and directors and the Borrower's independent accountants,
provided that Banks shall keep all such information and records confidential.
4.08 SECTION. REPORTING REQUIREMENTS. Furnish to Agent:
(1) MONTHLY FINANCIAL STATEMENTS. As soon as available and in any event
within forty-five (45) days after the end of each calendar month,
combined balance sheets of the Borrower and its Subsidiaries as of the
end of such month, combined (and
Page 14
combining if required by Agent at its discretion) statements of
operations of the Borrower and its Subsidiaries for such month and the
period commencing at the end of the previous fiscal year and ending
with the end of such month, and combined statements of cash flow of the
Borrower and its Subsidiaries for the portion of the fiscal year ended
with the last day of such month, all in reasonable detail and all
prepared in accordance with GAAP (except with respect to the absence of
footnotes) consistently applied and certified by the responsible
accounting officer or other responsible officer of the Borrower
(subject to year-end adjustments);
(2) ANNUAL FINANCIAL STATEMENTS. As soon as available and in any event
within one hundred ten(110) days after the end of each fiscal year of
the Borrower, combined (and combining if required by Agent at its
discretion) balance sheets of the Borrower and its Subsidiaries as of
the end of such fiscal year, combined (and combining if required by
Agent at its discretion) statements of operations and shareholders'
equity of the Borrower and its Subsidiaries for such fiscal year, and
combined statements of cash flow of the Borrower and its Subsidiaries
for such fiscal year, all in reasonable detail and stating in
comparative form (if applicable) the respective figures for the
corresponding date and period in the prior fiscal year and all prepared
in accordance with GAAP consistently applied accompanied by an opinion
thereon unqualified as to scope by independent accountants selected by
the Borrower and reasonably acceptable to the Agent (and Agent hereby
approves the Borrower's current auditor or any other "Big 5" accounting
firm);
(3) As soon as available and in any event within thirty (30) days after
the end of each fiscal year of the Borrower, annual forecasts
projecting the operating results of Borrower for the coming year;
(4) As soon as available and in any event within thirty (30) days of
the filing thereof, copies of Borrower's federal income tax returns if
requested;
(5) As soon as available and in any event by the fifteenth (15th) day
of each calendar month: (a) a collateral and loan status report on
forms provided by the Agent (or such other form approved by Agent); (b)
an aging of the Borrower's Contracts on a summary basis; (c) a summary
list of Contracts where the Contract Debtor is the subject to an
insolvency proceeding; (d) a report of Gross Charge-Offs or Net
Charge-Offs, if available; (e) as soon as possible but no later than
November 15, 2001, a report of Net Charge-Offs; (f) on a monthly basis,
on or before the 5th day of the following month, a lot status report
which shall include a summary of accounts in bankruptcy, repossessions,
write-offs and the wholesale value of repossessed vehicles; (g) such
other reports as to the Collateral of the Borrower as the Agent shall
reasonably request from time to time; and (h) a certificate of an
officer of the Borrower certifying as to the accuracy and completeness
of the foregoing. If any of the Borrower's records or reports of the
Collateral are prepared by an accounting service or other agent, the
Borrower hereby authorizes such service or agent to deliver such
records, reports, and related documents to the Agent.
(6) MANAGEMENT LETTERS. Promptly upon receipt thereof, copies of any
reports submitted to the Borrower or any Subsidiary by independent
certified public accountants in connection with the annual examination
of the financial statements of the Borrower or any Subsidiary made by
such accountants;
(7) CERTIFICATE OF NO DEFAULT. In connection with the delivery of
financial statements under Section 5.08(1), the Borrower shall deliver
a certificate signed by a responsible officer of the Borrower, (a)
certifying that to the best of his knowledge no Default or Event of
Default has occurred and is continuing, or if a Default or Event of
Default has occurred and is continuing, a statement as to the nature
thereof and the action which is proposed to be taken with respect
thereto; and (b) with computations demonstrating compliance with the
covenants contained in Article VII;
(8) ACCOUNTANT'S REPORT. Simultaneously with the delivery of the annual
financial statements referred to in Section 5.08(2), a certificate of
the independent public accountants who audited such statements to the
effect that, in making the examination necessary for the audit of such
statements, they have obtained no knowledge of any condition or event
which constitutes a Default or Event of Default, or if such accountants
shall have obtained knowledge of any such condition or event,
specifying in such certificate each such condition or event of which
they have knowledge and the nature and status thereof;
(9) NOTICE OF LITIGATION. Promptly after the commencement thereof,
notice of all actions, suits, and proceedings before any court or
governmental department, commission, board, bureau, agency, or
instrumentality, domestic or foreign, affecting the Borrower or any
Subsidiary which, if determined adversely to the Borrower or such
Subsidiary, could reasonably be expected to have a material adverse
effect on the financial condition, properties, or operations of the
Borrower or such Subsidiary;
(10) NOTICE OF DEFAULTS AND EVENTS OF DEFAULT. As soon as possible and
in any event within five(5) days after the occurrence of each Default
or Event of Default, a written notice setting forth the details of such
Default or Event of Default and the action which is proposed to be
taken by the Borrower with respect thereto;
(11) ERISA REPORTS. As soon as possible, and in any event within thirty
(30) days after the Borrower knows or has reason to know that any
circumstances exist that constitute grounds entitling the PBGC to
institute proceedings to terminate a Plan subject to ERISA with respect
to the Borrower or any Commonly Controlled Entity, and promptly but in
any event within five (5) Business Days of receipt by the Borrower or
any Commonly Controlled Entity of notice that the PBGC intends to
terminate a Plan or appoint a trustee to administer the same, and
promptly but in any event within five (5) Business Days of the receipt
of notice concerning the imposition of withdrawal liability with
respect to the Borrower or any Commonly Controlled Entity, the
Page 15
Borrower will deliver to Agent a certificate of a responsible officer
of the Borrower setting forth all relevant details and the action which
the Borrower proposes to take with respect thereto;
(12) REPORTS TO OTHER CREDITORS. Promptly after the furnishing thereof,
copies of any statement or report furnished to any other party to whom
Borrower owes $2,000,000 or more, pursuant to the terms of any
indenture, loan, credit, or similar agreement and not otherwise
required to be furnished to the Bank pursuant to any other clause of
this Section 5.08;
(13) GENERAL INFORMATION. Such other information respecting the
condition or operations, financial or otherwise, of the Borrower or any
Subsidiary as Agent may from time to time reasonably request.
4.09 SECTION. ENVIRONMENT. Be and remain, and cause each Subsidiary to be and
remain, in compliance with the provisions of all material federal, state, and
local environmental, health, and safety laws, codes and ordinances, and all
rules and regulations issued thereunder; notify Agent immediately of any notice
of a hazardous discharge or environmental complaint received from any
governmental agency or any other party which is likely to have a Material
Adverse Effect; notify Agent immediately of any hazardous discharge from or
affecting its premises which is likely to have a Material Adverse Effect;
immediately contain and remove the same, in compliance with all applicable laws;
promptly pay any fine or penalty assessed in connection therewith; permit Agent
to inspect the premises, to conduct tests thereon, and to inspect all books,
correspondence, and records pertaining thereto; and at Agent's request, and at
the Borrower's expense, provide a report of a qualified environmental engineer,
satisfactory in scope, form, and content to Agent, and such other and further
assurances reasonably satisfactory to Agent that the condition has been
corrected.
4.010 SECTION. OPERATING ACCOUNT. Maintain its primary operating account with
Agent.
4.011 SECTION. LOSS RESERVES. Maintain loss reserves in an amount, calculated
as of the last day of each month, which is in accordance with GAAP.
4.012 SECTION. CHARGE-OFF POLICY. Maintain, in a manner reasonably satisfactory
to the Agent, a policy for charging off the unpaid balance of its delinquent
Vehicle Contracts. Without limiting the generality of the foregoing, the
Borrower's policy shall provide, as a minimum, that on the last day of each
month the Borrower shall charge off the unpaid balance of all Vehicle Contracts
with respect to which (a) any payment due thereunder is one hundred eighty (180)
or more days contractually delinquent or (b) the Borrower has repossessed the
Vehicle which secured the Vehicle Contract more than thirty (30) days prior
thereto.
4.013 SECTION. PERFECTION AND PROTECTION OF SECURITY INTEREST.
(a) The Borrower shall, at its expense, perform all steps
requested by the Agent at any time to perfect, maintain, protect, and enforce
the Agent's Liens in the Collateral, including, without limitation: (i)
executing and filing financing or continuation statements, and amendments
thereof, in form and substance satisfactory to the Agent; (ii) upon Agent's
request, delivering to the Agent, at the request of Agent, the originals of all
Instruments, documents, and chattel paper, and all other Collateral of which the
Agent determines it should have physical possession in order to perfect and
protect the Agent's security interest therein, duly pledged, endorsed or
assigned to the Agent without restriction; (iii) placing notations on the
Borrower's books of account to disclose the Agent's security interest; and (iv)
taking such other steps as are deemed necessary or desirable by the Agent to
maintain and protect the Agent's Liens in the Collateral. To the extent
permitted by applicable law, the Agent may file, without the Borrower's
signature, one or more financing statements disclosing the Agent's Liens in the
Collateral. The Borrower agrees that a carbon, photographic, photostatic, or
other reproduction of this Agreement or of a financing statement is sufficient
as a financing statement.
(b) Except with respect to Collateral delivered to the Agent
pursuant to this Section 5.13, if requested by the Agent, the Borrower shall
immediately following the execution or receipt of a Contract, stamp on the
note(s) and/or chattel paper the following words (or similar language in all
respects satisfactory to Agent): "THIS DOCUMENT HAS BEEN PLEDGED TO BANK OF
ARKANSAS, N.A., AS AGENT AND MAY NOT BE FURTHER ASSIGNED." With respect to
note(s) and/or chattel paper in effect on the Closing Date, all such note(s)
and/or chattel paper shall be similarly stamped within forty-five (45) days of
such request.
4.014 SECTION. TITLE TO, LIENS ON, AND SALE OF COLLATERAL. The Borrower
represents and warrants to the Agent and the Banks that: (a) all of the
Collateral is and will continue to be owned solely by the Borrower free and
clear of all Liens whatsoever except for the Agent's Liens and Permitted Liens;
(b) the Agent's Liens in the Collateral will not be subject to any prior Lien;
(c) the Borrower will store and maintain the Collateral with all reasonable
care; and (d) the Borrower will not, without the Agent's prior written approval,
sell, or dispose of or permit the sale or disposition of any of the Collateral
other than in the ordinary course of business. The inclusion of proceeds in the
Collateral shall not be deemed to constitute the Agent's consent to any sale or
other disposition of the Collateral except as expressly permitted herein.
4.015 SECTION. COLLECTION OF CONTRACTS; PAYMENTS.
(a) At the election of Agent, the Borrower shall collect all
Accounts, shall receive all payments relating to Accounts, and shall promptly
deposit all such collections into Payment Accounts established for the account
of the Borrower at banks acceptable to the Borrower and the Agent, and subject
to the provisions of a Blocked Account Agreement acceptable to Borrower and
Agent. All collections relating to Accounts received in any such Payment Account
or directly by the Borrower or the Bank, and all funds in any Payment Account or
other account to which such collections are deposited, shall be the sole
property of the Bank and subject to the Bank's sole control. After an occurrence
of any Event of Default and following any applicable notice and cure period the
Bank may, at any
Page 16
time, notify obligors that the Accounts have been assigned to the Bank and of
the Security Interest therein, and may collect them directly and charge the
collection costs and expenses to the Borrower's loan account. The Borrower, at
Agent's request, shall execute and deliver to the Bank such documents as the
Bank shall require to grant the Bank access to any post office box in which
collections of Accounts are received.
(b) If sales of Inventory are made for cash, the Borrower
shall immediately deposit such identical checks, cash, or other forms of payment
which the Borrower receives into the Payment Accounts.
(c) All payments received by the Banks on account of Accounts
or as Proceeds of other Collateral will be the Banks' sole property and will be
credited to the Borrower's loan account (conditional upon final collection)
immediately upon receipt.
(d) In the event the Borrower repays all of the Obligations
upon the termination of this Agreement, other than through the Banks' receipt of
payments on account of Accounts or Proceeds of other collateral, such payment
will be credited (conditional upon final collection) to the Borrower's loan
account immediately after the Banks' receipt thereof.
5 ARTICLE
NEGATIVE COVENANTS
So long as any Note shall remain unpaid or any Bank shall have any
Commitment under this Agreement, the Borrower will not:
5.01 SECTION. LIENS. Create, incur, assume, or suffer to exist, or permit any
Subsidiary to create, incur, assume, or suffer to exist, any Lien, upon or with
respect to any of its properties, now owned or hereafter acquired, except:
(1) Liens in favor of all the Banks pursuant to the Security Agreement;
(2) Liens for taxes or assessments or other government charges or
levies if not yet due and payable, or if due and payable, if they are
being contested in good faith by appropriate proceedings and for which
appropriate reserves are maintained;
(3) Liens imposed by law, such as mechanics', materialmen's,
landlords', warehousemen's, and carriers' Liens, and other similar
Liens, securing obligations incurred in the ordinary course of business
which are not past due for more than sixty (60) days or which are being
contested in good faith by appropriate proceedings and for which
appropriate reserves have been established;
(4) Liens under workers' compensation, unemployment insurance, Social
Security, or similar legislation;
(5) Liens, deposits, or pledges to secure the performance of bids,
tenders, contracts (other than contracts for the payment of money),
leases (permitted under the terms of this Agreement), public or
statutory obligations, surety, stay, appeal, indemnity, performance or
other similar bonds, or similar obligations arising in the ordinary
course of business;
(6) Judgment and other similar Liens arising in connection with court
proceedings , provided the execution or other enforcement of such Liens
is effectively stayed and the claims secured thereby are being actively
contested in good faith and by appropriate proceedings or the amount of
such judgement or similar lien is not reasonably likely to have a
Material Adverse Effect;
(7) Easements, rights-of-way, restrictions, and other similar
encumbrances which, in the aggregate, do not materially interfere with
the occupation, use, and enjoyment by the Borrower or any Subsidiary of
the property or assets encumbered thereby in the normal course of its
business or materially impair the value of the property subject
thereto; and
(8) Purchase-money Liens on any property hereafter acquired or the
assumption of any Lien on property existing at the time of such
acquisition (and not created in contemplation of such acquisition), or
a Lien incurred in connection with any conditional sale or other title
retention agreement or a Capital Lease; provided that
(a) Any property subject to any of the foregoing is acquired
by the Borrower or any Subsidiary in the ordinary course of
its respective business and the Lien on any such property
attaches to such asset concurrently or within ninety (90) days
after the acquisition thereof;
(b) The obligation secured by any Lien so created, assumed, or
existing shall not exceed one hundred percent (100%) of the
lesser of the cost or the fair market value as of the time of
acquisition of the property covered thereby to the Borrower or
Subsidiary acquiring the same;
(c) Each such Lien shall attach only to the property so
acquired and fixed improvements thereon (if applicable);
(d) The Debt secured by all such Liens shall not exceed (i)
One Million Dollars ($1,000,000) per fiscal year pertaining to
real property, or (ii) Two Hundred Fifty Thousand Dollars
($250,000) per fiscal year pertaining to personal property of
Borrower; and
Page 17
(e) The Debt secured by such Lien is permitted by the
provisions of Section 6.02.
5.02 SECTION. DEBT. Create, incur, assume, or suffer to exist, or permit any
Subsidiary to create, incur, assume, or suffer to exist, any Debt, except:
(1) Debt of the Borrower under this Agreement or the Notes;
(2) Debt described in Exhibit "J", but no voluntary prepayments,
renewals, extensions, or refinancings thereof following the occurrence
and continuation of an Event of Default;
(3) Debt of the Borrower subordinated on terms satisfactory to the
Majority Banks to the Borrower's obligations under this Agreement and
the Notes;
(4) Debt of the Borrower to the other Borrower;
(5) Accounts payable to trade creditors for goods or services and
current operating liabilities (other than for borrowed money) in each
case incurred in the ordinary course of business , and paid within the
specified time (or if no specified time exists, within a reasonable
time), unless contested in good faith and by appropriate proceedings or
unless the amount is less than $50,000.00;
(6) Debt of the Borrower or any Subsidiary secured by purchase-money
Liens permitted by Section 6.01(8), not to exceed $250,000 in the
aggregate per given fiscal year; and
(7) Debt related to the acquisition of land and improvements, on a net
basis, for the operation of Car-Mart facilities in an aggregate amount
not to exceed $1,000,000 per fiscal year.
5.03 SECTION. MERGERS, ETC. Wind up, liquidate or dissolve itself, reorganize,
merge or consolidate with or into, or convey, sell, assign, transfer, lease, or
otherwise dispose of (whether in one transaction or in a series of transactions)
all or substantially all of its assets (whether now owned or hereafter acquired)
to any Person, or acquire all or substantially all of the assets or the business
of any Person in excess of $500,000 in a given fiscal year, or permit any
Subsidiary to do so, except that (1) any Subsidiary may merge into or transfer
assets to the Borrower and (2) any subsidiary may merge into or consolidate with
or transfer assets to any other Subsidiary.
5.04 SECTION. LEASES. Create, incur, assume, or suffer to exist, or permit any
Subsidiary to create, incur, assume, or suffer to exist, any obligation as
lessee for the rental or hire of any real or personal property, except (1)
Capital Leases permitted by Section 6.01(8); (2) leases existing on the date of
this Agreement and any extensions or renewals thereof; (3) leases (other than
Capital Leases and the leases described in (5) below) which do not in the
aggregate require the Borrower and its Subsidiaries on a combined basis to make
payments (including taxes, insurance, maintenance, and similar expenses which
the Borrower or any Subsidiary is required to pay under the terms of any lease)
in any fiscal year of the Borrower in excess of Two Hundred Fifty Thousand
Dollars ($250,000); (4) leases between the Borrower and any Subsidiary or
between any Subsidiaries; and (5) leases incurred in the ordinary course of
business for the rental of dealership locations for an amount not to exceed the
fair value of the leased property.
5.05 SECTION. SALE AND LEASEBACK. Sell, transfer, or otherwise dispose of, or
permit any Subsidiary to sell, transfer, or otherwise dispose of, any real or
personal property to any Person and thereafter directly or indirectly lease back
the same or similar property.
5.06 SECTION. DIVIDENDS. Declare or pay any dividends; or purchase, redeem,
retire, or otherwise acquire for value any of its capital stock now or hereafter
outstanding, or make any distribution of assets to its stockholders as such
whether in cash, assets, or in obligations of the Borrower; or allocate or
otherwise set apart any sum for the payment of any dividend or distribution on,
or for the purchase, redemption, or retirement of any shares of its capital
stock; or make any other distribution by reduction of capital or otherwise in
respect of any shares of its capital stock; or permit any of its Subsidiaries to
purchase or otherwise acquire for value any stock of the Borrower or another
Subsidiary, except that (i) in connection with the initial capitalization of
Colonial ("Colonial Transaction") on the Closing Date, ACM will dividend monies
to its shareholders, who will simultaneously reinvest 100% thereof into
Colonial, and (ii) the Borrower may repurchase employee-held stock in an
aggregate amount not to exceed $150,000 per year, subject to a higher amount
approved in writing by the Majority Banks.
5.07 SECTION. SALE OF ASSETS. Sell, lease, assign, transfer, or otherwise
dispose of, or permit any Subsidiary to sell, lease, assign, transfer, or
otherwise dispose of, any material portion of its now owned or hereafter
acquired assets (including, without limitation, shares of stock and indebtedness
of Subsidiaries, receivables, and leasehold interests), except: (1) inventory
disposed of in the ordinary course of business; (2) the sale or other
disposition of assets no longer used or useful in the conduct of its business;
or (3) the sale and purchase of Contracts between Colonial and ACM.
5.08 SECTION. INVESTMENTS. Make, or permit any Subsidiary to make, any loan or
advance to any Person, or purchase or otherwise acquire, or permit any
Subsidiary to purchase or otherwise acquire, any capital stock, assets,
obligations, or other securities of, make any capital contribution to, or
otherwise invest in or acquire any interest in any Person, or participate as a
partner or joint venturer with any other Person, except: (1) direct obligations
of the United States or any agency thereof with maturities of one year or less
from the date of acquisition; (2) commercial paper of a domestic issuer rated at
least "A-1" by Standard & Poor's Corporation or "P-1" by Moody's Investors
Service, Inc.; (3) certificates of deposit with maturities of one year or less
from the date of acquisition issued by any commercial bank having capital and
surplus in excess of Two Hundred Fifty Thousand Dollars ($250,000); (4) stock,
obligations, or securities received in settlement of debts (created in the
ordinary course of business) owing to the Borrower or any Subsidiary; (5) loans
to employees of the
Page 18
Borrower in excess of $250,000 in the aggregate in any fiscal year; (6) property
to be used in and acquired in the ordinary course of business; (7) purchase of
Contracts in the ordinary course of business; and (8) assets of Borrower's
Contract Debtors.
5.09 SECTION. GUARANTIES, ETC. Assume, guarantee, endorse, or otherwise be or
become directly or contingently responsible or liable, or permit any Subsidiary
to assume, guarantee, endorse, or otherwise be or become directly or
contingently responsible or liable (including, but not limited to, an agreement
to purchase any obligation, stock, assets, goods, or services, or to supply or
advance any funds, assets, goods, or services, or an agreement to maintain or
cause such Person to maintain a minimum working capital or net worth or
otherwise to assure the creditors of any Person against loss), for obligations
of any other Person, except guaranties by (i) endorsement of negotiable
instruments for deposit or collection or similar transactions in the ordinary
course of business; (ii) in favor of the Agent or Banks, and (iii) the Fleeman
Guaranty.
5.010 SECTION. TRANSACTIONS WITH AFFILIATES. Except as permitted by Agent in
writing, the Borrower shall not sell, transfer, distribute, or pay any money or
Property, including, but not limited to, any management fees or expenses of any
nature, to any Affiliate, or lend or advance money or Property to any Affiliate,
or invest in (by capital contribution or otherwise) or purchase or repurchase
any stock or indebtedness, or any Property, of any Affiliate, or become liable
on any Guaranty of the indebtedness, dividends, or other obligations of any
Affiliate. Notwithstanding the foregoing, the Borrower may (i) reimburse an
affiliate the actual cost of expenses paid or assets acquired on the Borrowers
behalf, (ii) pay Crown Group, Inc. amounts due pursuant to the Crown Sub-Debt as
permitted in the Crown Sub-Debt Subordination Agreement, (iii) make income tax
payments to Crown Group, Inc., (iv) pay Crown Group, Inc. a management fee not
to exceed $10,000 per month, (v) pay a dividend to its shareholders on the
Closing Date as described in Section 6.06 and (vi) engage in other transactions
with Affiliates in the ordinary course of business, in amounts and upon terms
fully disclosed to the Agent, and no less favorable to the Borrower than would
be obtained in a comparable arm's-length transaction with a third party who is
not an Affiliate.
5.011 SECTION. NEW CAR LOTS. Open more than six (6) new car lot locations
annually. The relocation of an existing location or opening a satellite location
will not be counted as a new car lot for purposes of this Section.
5.012 SECTION. NEW SUBSIDIARIES. Directly or indirectly, organize or acquire
any Subsidiary.
5.013 SECTION. REPORTING METHODOLOGY. Without the Agent's prior written consent
thereto, the Borrower shall not amend or modify the methodology employed by the
Borrower in preparing its accounting and financial reports relating to the
presentation of (i) the delinquency of Vehicle Contracts, (ii) the repossession
of Vehicles, and (iii) the charge-off of delinquent Vehicle Contracts from the
methodology employed by the Borrower as of the date of this Agreement so as to
materially change the consistency of the information with respect to such items,
from time to time, provided to Agent.
5.014 SECTION. CONTRACT FORMS. The Borrower shall not use or acquire in its
business Contracts which are not on the printed forms previously approved in
writing by the Agent and the Borrower shall not change or vary the printed forms
of such Contracts without the Agent's prior written consent (which shall not be
withheld unreasonably), unless such change or variation is required by any
requirement of law. The Agent may reasonably withhold its consent until the
Agent receives a satisfactory opinion of the Borrower's counsel regarding
compliance of the revised form of Contract with any requirement of law subject
to such opinion. Based upon such opinion, Agent consents to the forms attached
as Exhibit "K" attached hereto.
5.015 SECTION. CREDIT GUIDELINES. The Borrower shall not make any changes in
its Credit Guidelines without the Agent's prior written consent which the Agent
may withhold in its sole and absolute discretion. The Borrower shall not
purchase or otherwise acquire Contracts which do not comply with the Credit
Guidelines.
5.016 SECTION. SERVICE CONTRACTS. To the extent that the Borrower offers
so-called "service contracts," the Borrower shall ensure that the cost of such
service contracts are disclosed to the Contract Debtors and such service
contracts are in compliance with all applicable consumer credit laws, including
any and all special laws relating thereto.
5.017 SECTION. PURCHASE OF VEHICLE NOTE RECEIVABLES. Colonial shall not
purchase Vehicle Contracts from any Person except ACM.
6 ARTICLE
FINANCIAL COVENANTS
The following financial covenants shall be calculated on a combined
basis. So long as any Note shall remain unpaid or any Bank shall have any
Commitment under this Agreement:
6.01 SECTION. LEVERAGE RATIO. The Borrower will maintain at all times,
calculated as of the last day of each month, a ratio of total liabilities (minus
Subordinated Debt) to tangible net worth (plus Subordinated Debt) of not greater
than 2.0 to 1.0.
6.02 SECTION. FIXED CHARGE COVERAGE RATIO. Borrower will not permit the ratio
of (a) EBITDA to (b) Fixed Charges to be less than 1.15 to 1.00 as of the end of
each month for the trailing six (6) month period.
Page 19
7 ARTICLE
EVENTS OF DEFAULT
7.01 SECTION. EVENTS OF DEFAULT. If any of the following events shall occur,
and continue uncured for a period of thirty (30) days with respect to
subsections (2), (3), (4), (7), (8), (10) and (11), then they shall be deemed an
Event of Default:
(1) The Borrower shall fail to pay when due ( subject to a five (5)
Business Day grace period) the principal of, or interest on, any Note,
or any amount of a commitment or other fee, as and when due and
payable;
(2) Any representation or warranty made or deemed made by the Borrower
in this Agreement or the Security Agreement or by the Guarantor in the
Guaranty or which is contained in any certificate, document, opinion,
or financial or other statement furnished at any time under or in
connection with any Loan Document shall prove to have been incorrect,
incomplete, or misleading in any material respect on or as of the date
made or deemed made;
(3) The Borrower or the Guarantor shall fail to perform or observe any
term, covenant, or agreement contained in Articles V, VI, or VII
hereof;
(4) Excluding the Crown Sub Debt and other debt less than $2,000,000,
the Borrower or any of its Subsidiaries shall (a) fail to pay any
indebtedness for borrowed money (other than the Notes) of the Borrower
or such Subsidiary , as the case may be, or any interest or premium
thereon, when due (whether by scheduled maturity, required prepayment,
acceleration, demand, or otherwise); or (b) fail to perform or observe
any term, covenant, or condition on its part to be performed or
observed under any agreement or instrument relating to any such
indebtedness, when required to be performed or observed, if the effect
of such failure to perform or observe is to accelerate, or to permit
the acceleration of after the giving of notice or passage of time, or
both, the maturity of such indebtedness, whether or not such
indebtedness shall be declared to be due and payable, or required to be
prepaid (other than by a regularly scheduled required prepayment),
prior to the stated maturity thereof;
(5) The Borrower or any of its Subsidiaries or the guarantor (a) shall
generally not pay, or shall be unable to pay, or shall admit in writing
its inability to pay its debts as such debts become due; or (b) shall
make an assignment for the benefit of creditors, or petition or apply
to any tribunal for the appointment of a custodian, receiver, or
trustee for it or a substantial part of its assets; or (c) shall
commence any proceeding under any bankruptcy, reorganization,
arrangement, readjustment of debt, dissolution, or liquidation law or
statute of any jurisdiction, whether now or hereafter in effect; or (d)
shall have had any such petition or application filed or any such
proceeding commenced against it in which an order for relief is entered
or an adjudication or appointment is made, and which remains
undismissed for a period of sixty (60) days or more; or (e) shall take
any corporate action indicating its consent to, approval of, or
acquiescence in any such petition, application, proceeding, or order
for relief or the appointment of a custodian, receiver, or trustee for
all or any substantial part of its properties; or (f) shall suffer any
such custodianship, receivership, or trusteeship to continue
undischarged for a period of sixty (60) days or more;
(6) One or more judgments, decrees, or orders for the payment of money
in excess of Two Hundred Fifty Thousand Dollars ($250,000) in the
aggregate shall be rendered against the Borrower or any of its
Subsidiaries, and such judgments, decrees, or orders shall continue
unsatisfied and in effect for a period of sixty (60) consecutive days
without being vacated, discharged, satisfied, or stayed or bonded
pending appeal;
(7) The Security Agreement shall at any time after its execution and
delivery and for any reason cease (a) to create a valid and perfected
first priority security interest in and to the property purported to be
subject to such Security Agreement; or (b) to be in full force and
effect or shall be declared null and void, or the validity or
enforceability thereof shall be contested by the Borrower, or the
Borrower shall deny it has any further liability or obligation under
this Security Agreement, or the Borrower shall fail to perform any of
its obligations under the Security Agreement;
(8) The Guaranty shall at any time after its execution and delivery and
for any reason cease to be in full force and effect or shall be
declared null and void, or the validity or enforceability thereof shall
be contested by the Guarantor or the Guarantor shall deny it has any
further liability or obligation under, or shall fail to perform its
obligations under, the Guaranty;
(9) Any of the following events shall occur or exist with respect to
the Borrower and any Commonly Controlled Entity under ERISA: any
Reportable Event shall occur; complete or partial withdrawal from any
Multiemployer Plan shall take place; any Prohibited Transaction shall
occur; a notice of intent to terminate a Plan shall be filed, or a Plan
shall be terminated; or circumstances shall exist which constitute
grounds entitling the PBGC to institute proceedings to terminate a
Plan, or the PBGC shall institute such proceedings; and in each case
above, such event or condition, together with all other events or
conditions, if any, is likely to subject the Borrower to any tax,
penalty, or other liability which in the aggregate is likely to exceed
Two Hundred Fifty Thousand Dollars ($250,000); or
(10) If any Bank receives its first notice of a hazardous discharge or
an environmental complaint from a source other than the Borrower (such
Bank to immediately notify the Agent thereof) and such Bank does not
receive notice (which may be given in oral form, provided same is
followed with all due dispatch by written notice given to such Bank and
the Agent by Certified Mail, Return Receipt Requested) of such
hazardous discharge or environmental complaint from the Borrower within
twenty-four (24) hours of the time such Bank first receives said notice
from a source other than the Borrower and the impact of such hazardous
discharge or complaint is likely to have a Material Adverse Effect on
the operations of the Borrower; or if any federal, state, or local
agency asserts or creates a material Lien upon any or all of the
assets, equipment, property, leaseholds or other facilities of the
Borrower by reason of the occurrence of a hazardous discharge or an
environmental complaint which is reasonably likely to
Page 20
cause a Material Adverse Effect; or if any federal, state, or local
agency asserts a claim against the Borrower and/or its assets,
equipment, property, leaseholds, or other facilities for damages or
cleanup costs relating to a hazardous discharge or an environmental
complaint which is reasonably likely to cause a Material Adverse
Effect; provided, however, that such claim shall not constitute a
default if, within five (5) Business Days of the occurrence giving rise
to the claim (a) the Borrower can prove to the satisfaction of the
Majority Banks that the Borrower has commenced and is diligently
pursuing either: (i) a cure or correction of the event which
constitutes the basis for the claim, and continues diligently to pursue
such cure or correction to completion or (ii) proceedings for an
injunction, a restraining order or other appropriate emergency relief
preventing such agency or agencies from asserting such claim, which
relief is granted within ten (10) Business Days of the occurrence
giving rise to the claim and the injunction, order, or emergency relief
is not thereafter resolved or reversed on appeal; and (b) in either of
the foregoing events, the Borrower has posted a bond, letter of credit,
or other security satisfactory in form, substance, and amount to both
the Majority Banks and the agency or entity asserting the claim to
secure the proper and complete cure or correction of the event which
constitutes the basis for the claim.
(11) The Collateral Adjustment Percent should exceed 35% for two
consecutive months.
Upon the occurrence of any Event of Default, and following a
written notice and a thirty (30) day cure period as to the foregoing sections
other than 8.01(1), ; the Agent shall at the request of, or may, with the
consent of, the Majority Banks, by notice to the Borrower, (1) declare the
Banks' obligation to make Loans to be terminated, whereupon the same shall
forthwith terminate; and (2) declare the outstanding Notes, all interest
thereon, and all other amounts payable under this Agreement to be forthwith due
and payable, whereupon the Notes, all such interest, and all such amounts shall
become and be forthwith due and payable, without presentment, demand, protest,
or further notice of any kind, all of which are hereby expressly waived by the
Borrower; and each Bank is hereby authorized at any time and from time to time,
without notice to the Borrower (any such notice being expressly waived by the
Borrower), to set off and apply any and all deposits (general or special, time
or demand, provisional or final) at any time held and other indebtedness at any
time owing by such Bank to or for the credit or the account of the Borrower
against any and all of the obligations of the Borrower now or hereafter existing
under this Agreement or the Bank's Note or any other Loan Document, irrespective
of whether or not the Agent or such Bank shall have made any demand under this
Agreement or such Bank's Note or such other Loan Document and although such
obligations may be unmatured. Each Bank agrees promptly to notify the Borrower
(with a copy to the Agent) after any such setoff and application, provided that
the failure to give such notice shall not affect the validity of such setoff and
application. The rights of each Bank under this Section 8.01 are in addition to
other rights and remedies (including, without limitation, other rights of
setoff) which each such Bank may have.
8 ARTICLE
AGENCY PROVISIONS
8.01 SECTION. AUTHORIZATION AND ACTION. Each Bank hereby irrevocably appoints
and authorizes the Agent to take such action as agent on its behalf and to
exercise such powers under this Agreement as are delegated to the Agent by the
terms hereof, together with such powers as are reasonably incidental thereto.
The duties of the Agent shall be mechanical and administrative in nature and the
Agent shall not by reason of this Agreement be a trustee or fiduciary for any
Bank. The Agent shall have no duties or responsibilities except those expressly
set forth herein. As to any matters not expressly provided for by this Agreement
(including, without limitation, enforcement or collection of the Notes), the
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 so refraining from acting) upon the instructions of the Majority
Banks, and such instructions shall be binding upon all Banks and all holders of
Notes; provided, however, that the Agent shall not be required to take any
action which exposes the Agent to personal liability or which is contrary to
this Agreement or applicable law.
8.02 SECTION. LIABILITY OF AGENT. Neither the Agent nor any of its directors,
officers, agents or employees shall be liable for any action taken or omitted to
be taken by it or them under or in connection with this Agreement in the absence
of its or their own gross negligence or willful misconduct. Without limitation
of the generality of the foregoing, the Agent (1) may treat the payee of any
Note as the holder thereof until the Agent receives written notice of the
assignment or transfer thereof signed by such payee and in form satisfactory to
the Agent; (2) may consult with legal counsel (including counsel for the
Borrower), independent public accountants and other experts selected by it and
shall not be liable for any action taken or omitted to be taken in good faith by
it in accordance with the advice of such counsel, accountants, or experts; (3)
makes no warranty or representation to any Bank and shall not be responsible to
any Bank for any statements, warranties, or representations made in or in
connection with this Agreement; (4) shall not have any duty to ascertain or to
inquire as to the performance or observance of any of the terms, covenants, or
conditions of this Agreement on the part of the Borrower, or to inspect the
property (including the books and records) of the Borrower; (5) shall not be
responsible to any Bank for the due execution, legality, validity,
enforceability, genuineness, perfection, sufficiency, or value of this Agreement
or any other instrument or document furnished pursuant thereto; and (6) shall
incur no liability under or in respect of this Agreement by acting upon any
notice, consent, certificate, or other instrument or writing (which may be sent
by telegram, telex, or facsimile transmission) believed by it to be genuine and
signed or sent by the proper party or parties.
8.03 SECTION. RIGHTS OF AGENT AS A BANK. With respect to its Commitment, the
Loans made by it and the Note issued to it, the 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 the Agent; and the term "Bank" or "Banks" shall, unless
otherwise expressly indicated, include the Agent in its individual capacity. 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, the
Borrower, any of its Subsidiaries and any Person who may do business with or own
securities of the Borrower or any Subsidiary, all as if the Agent were not the
Agent and without any duty to account therefor to the Banks.
Page 21
8.04 SECTION. INDEPENDENT CREDIT DECISIONS. Each Bank acknowledges that it has,
independently and without reliance upon the Agent or any other Bank and based on
such documents and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement. Each Bank also acknowledges
that it will, independently and without reliance upon the Agent or any other
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 Agreement. Except for notices, reports and other documents and
information expressly required to be furnished to the Banks by the Agent
hereunder, the Agent shall have no duty or responsibility to provide any Bank
with any credit or other information concerning the affairs, financial condition
or business of the Borrower or any of its Subsidiaries (or any of their
Affiliates) which may come into the possession of the Agent or any of its
Affiliates.
8.05 SECTION. INDEMNIFICATION. The Banks agree to indemnify the Agent (to the
extent not reimbursed by the Borrower), ratably according to the respective
amounts of their Commitments, 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 the Agent in any way relating to or arising
out of this Agreement or any action taken or omitted by the Agent under this
Agreement, provided that no Bank shall be liable for any portion of any of the
foregoing resulting from the Agent's gross negligence or willful misconduct.
Without limitation of the foregoing, each Bank agrees to reimburse the Agent (to
the extent not reimbursed by the Borrower) promptly upon demand for its ratable
share of any out-of-pocket expenses (including counsel fees) incurred by the
Agent in connection with the preparation, administration, or enforcement of, or
legal advice in respect of rights or responsibilities under, this Agreement.
8.06 SECTION . SUCCESSOR AGENT. The Agent may resign at any time by giving at
least sixty (60) days' prior written notice thereof to the Banks and the
Borrower and may be removed at any time with or without cause by the Majority
Banks. Upon any such resignation or removal, the Majority Banks shall have the
right to appoint a successor Agent. If no successor Agent shall have been so
appointed by the Majority Banks, and shall have accepted such appointment,
within thirty (30) days after the retiring Agent's giving of notice of
resignation or the Majority Banks' removal of the retiring Agent, then the
retiring Agent may, on behalf of the Banks, appoint a successor Agent, which
shall be a commercial bank organized under the laws of the United States of
America or of any State thereof and having a combined capital and surplus of at
least Fifty Million Dollars ($50,000,000). 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 under this Agreement. After any retiring Agent's
resignation or removal hereunder as Agent, the provisions of this Article IX
shall inure to its benefit as to any actions taken or omitted to be taken by it
while it was Agent under this Agreement.
8.07 SECTION. SHARING OF PAYMENTS, ETC. If any Bank shall obtain any payment
(whether voluntary, involuntary, through the exercise of any right of setoff, or
otherwise) on account of the Note held by it in excess of its ratable share of
payments on account of the Notes obtained by all the Banks, such Bank shall
purchase from the other Banks such participations in the Notes held by them as
shall be necessary to cause such purchasing Bank to share the excess payment
ratably with each of the other Banks, 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 each Bank shall repay
to the purchasing Bank the purchase price to the extent of such recovery
together with an amount equal to such Bank's ratable share (according to the
proportion of (1) the amount of such Bank's required repayment to (2) 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 so
recovered. The Borrower agrees that any Bank so purchasing a participation from
another Bank pursuant to this Section 9.07 may, to the fullest extent permitted
by law, exercise all its rights of payment (including the right of setoff) with
respect to such participation as fully as if such Bank were the direct creditor
of the Borrower in the amount of such participation.
9 ARTICLE
MISCELLANEOUS
9.01 SECTION. AMENDMENTS, ETC. No amendment, modification, termination, or
waiver of any provision of any Loan Document to which the Borrower is a party,
nor consent to any departure by the Borrower from any Loan Document to which it
is a party, shall in any event be effective unless the same shall be in writing
and signed by the Majority Banks, and then such waiver or consent shall be
effective only in the specific instance and for the specific purpose for which
given, provided, however, that no amendment, waiver or consent shall, unless in
writing and signed by all the Banks, do any of the following: (1) waive any of
the conditions precedent specified in Article III; (2) increase the Commitments
of the Banks or subject the Banks to any additional obligations; (3) reduce the
principal of, or interest on, the Notes or any fees hereunder; (4) postpone any
date fixed for any payment of principal of, or interest on, the Notes or any
fees hereunder; (5) change the percentage of the Commitments or of the aggregate
unpaid principal amount of the Notes or the number of Banks which shall be
required for the Banks or any of them to take action hereunder; or amend, modify
or waive any provision of this Section 10.01, and provided further that no
amendment, waiver, or consent shall, unless in writing and signed by the Agent
in addition to the Banks required above to take such action, affect the rights
or duties of the Agent under any of the Loan Documents.
9.02 SECTION. NOTICES, ETC. All notices and other communications provided for
under this Agreement and under the other Loan Documents to which the Borrower is
a party shall be in writing (including telegraphic, telex, and facsimile
transmissions) and mailed or transmitted or delivered, if to the Borrower, at
its address at 2007 S. Eight Street, Suite One, Rogers, Arkansas, 72756,
Attention Nan Smith with copy to Crown Group, Inc., Attn: Mark D. Slusser and
T.J. Falgout, at 4040 N. MacArthur Blvd., Suite 100, Irving, TX 75038; if to
BANK OF OKLAHOMA, N.A. at its address at One Williams Center, 8th floor, Tulsa,
OK 74103, Attention: John Anderson, BANK OF ARKANSAS, N.A. at its address at
P.O. Box 1407, Fayetteville, AR 72702-1404, Attention: Jeffrey R. Dunn, SUPERIOR
FEDERAL BANK at its address at 5000 Rogers Avenue, P.O. Box 17012, Ft. Smith, AR
72917-7012, Attention: Tim Cummins, GREAT SOUTHERN BANK at its address at 1451
East Battlefield, Springfield, MO 65804, Attention: Gary Lewis, COMMUNITY BANK
OF
Page 22
NORTH ARKANSAS at its address at 1685 E. Joyce, Fayetteville, AR 72701,
Attention: P. Douglas Lynch, ARKANSAS STATE BANK at its address at P.O. Box 400,
Siloam Springs, AR 72761, Attention: Curtis Hutchins, and to Additional Lender
at its address set forth on its signature page, attached hereto; and if to the
Agent, at its address at P.O. Box 1407, Fayetteville, AR 72702-1404, Attention:
Jeffrey R. Dunn; or, as to each party, at such other address as shall be
designated by such party in a written notice to all other parties complying as
to delivery with the terms of this Section 10.02. Except as is otherwise
provided in this Agreement, all such notices and communications shall be
effective when deposited in the mails or delivered to the telegraph company, or
sent by facsimile, answerback received, respectively, addressed as aforesaid,
except that notices to the Agent pursuant to the provisions of Article II shall
not be effective until received by the Agent.
9.03 SECTION. NO WAIVER. No failure or delay on the part of any Bank or the
Agent in exercising any right, power, or remedy hereunder shall operate as a
waiver thereof; nor shall any single or partial exercise of any such right,
power, or remedy preclude any other or further exercise thereof or the exercise
of any other right, power, or remedy hereunder. The rights and remedies provided
herein are cumulative, and are not exclusive of any other rights, powers,
privileges, or remedies, now or hereafter existing, at law or in equity or
otherwise.
9.04 SECTION. SUCCESSORS AND ASSIGNS. The Agreement shall be binding upon and
inure to the benefit of the Borrower, each Bank and the Agent and their
respective successors and assigns, except that the Borrower may not assign or
transfer any of its rights under any Loan Document to which the Borrower is a
party without the prior written consent of all the Banks.
9.05 SECTION. COSTS, EXPENSES, AND TAXES. The Borrower agrees to pay on demand
all costs and expenses incurred by the Agent in connection with the preparation,
execution, delivery, filing, and administration of the Loan Documents, and of
any amendment, modification, or supplement to the Loan Documents, including,
without limitation, the fees and out-of-pocket expenses of counsel for the
Agent, incurred in connection with advising the Agent or any of the Banks as to
their rights and responsibilities hereunder. The Borrower also agrees to pay all
such costs and expenses, including court costs, incurred in connection with
enforcement of the Loan Documents, or any amendment, modification, or supplement
thereto, whether by negotiation, legal proceedings, or otherwise. In addition,
the Borrower shall pay any and all stamp and other taxes and fees payable or
determined to be payable in connection with the executing, delivery, filing, and
recording of any of the Loan Documents and the other documents to be delivered
under any such Loan Documents, and agrees to hold the Agent and each of the
Banks harmless from and against any and all liabilities with respect to or
resulting from any delay in paying or failing to pay such taxes and fees. This
provision shall survive termination of this Agreement.
9.06 SECTION. INTEGRATION. This Agreement and the Loan Documents contain the
entire agreement between the parties relating to the subject matter hereof and
supersedes all oral statements and prior writings with respect thereto.
9.07 SECTION. INDEMNITY. The Borrower hereby agrees to defend, indemnify, and
hold each Bank harmless from and against any and all claims, damages, judgments,
penalties, costs, and expenses (including attorney fees and court costs now or
hereafter arising from the aforesaid enforcement of this clause) arising
directly or indirectly from the activities of the Borrower and its Subsidiaries,
its predecessors in interest, or third parties with whom it has a contractual
relationship, or arising directly or indirectly from the violation of any
environmental protection, health, or safety law, whether such claims are
asserted by any governmental agency or any other person. This indemnity shall
survive termination of this Agreement.
9.08 SECTION. GOVERNING LAW. This Agreement and the Notes shall be governed by,
and construed in accordance with, the laws of the State of Arkansas.
9.09 SECTION. SEVERABILITY OF PROVISIONS. Any provision of any Loan Document
which is prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions of such Loan
Document or affecting the validity or enforceability of such provision in any
other jurisdiction.
9.010 SECTION. COUNTERPARTS. This Agreement may be executed in any number of
counterparts and by different parties to this Agreement in separate
counterparts, each of which when so executed shall be deemed to be an original
and all of which taken together shall constitute one and the same Agreement.
9.011 SECTION. HEADINGS. Article and Section headings in the Loan Documents are
included in such Loan Documents for the convenience of reference only and shall
not constitute a part of the applicable Loan Documents for any other purpose.
9.012 SECTION. JURY TRIAL WAIVER. THE BORROWER AND EACH BANK HEREBY WAIVE TRIAL
BY JURY IN ANY ACTION, PROCEEDING, CLAIM OR COUNTERCLAIM, WHETHER IN CONTRACT OR
TORT, AT LAW OR IN EQUITY, ARISING OUT OF OR IN ANY WAY RELATED TO THIS
AGREEMENT OR THE LOAN DOCUMENTS. NO OFFICER OR ANY BANK OR OF THE AGENT HAS
AUTHORITY TO WAIVE, CONDITION, OR MODIFY THIS PROVISION.
SECTION 10.13. ADDITIONAL LENDER. One or more Additional Lenders shall
be determined at a later date, and shall execute the Additional Lender Signature
Page attached hereto and made a part hereof, and thereafter shall be included as
a Bank under the terms of this Agreement. By execution of the Additional Lender
Signature Page, each Additional Lender shall be bound by the terms of this
Agreement and entitled to all benefits of this Agreement as though such
Additional Lender or Lenders had signed on the date of this Agreement; provided,
however, that any Additional Lender shall not receive payments of principal,
interest or fees accrued hereunder or paid by the Borrower prior to the date
such Additional Lender executes the Additional Lender Signature Page.
Page 23
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized, as of the date
first written.
[Remainder of page intentionally left blank.]
"BORROWERS"
AMERICA'S CAR-MART, INC., an Arkansas
corporation,
By
-------------------------------------
Name
-----------------------------------
Title
----------------------------------
COLONIAL AUTO FINANCE, INC.,
an Arkansas corporation,
By
-------------------------------------
Name
-----------------------------------
Title
----------------------------------
Page 24
"BANKS"
BANK OF OKLAHOMA, N.A.
By
-------------------------------------
Name
-----------------------------------
Title
----------------------------------
Principal Office and Lending Office
P.O. Box 2300
Tulsa, OK 74192
Attn: John Anderson
BANK OF ARKANSAS, N.A.,
By
-------------------------------------
Jeffrey R. Dunn, President
Principal Office and Lending Office:
P.O. Box 1407
Fayetteville, AR 72702-1404
Attention: Jeffrey R. Dunn
SUPERIOR FEDERAL BANK,
By
-------------------------------------
Name
-----------------------------------
Title
----------------------------------
Principal Office and Lending Office:
---------------------------------------
----------------------------------------
GREAT SOUTHERN BANK
By
-------------------------------------
Name
-----------------------------------
Title
----------------------------------
Principal Office and Lending Office:
---------------------------------------
----------------------------------------
COMMUNITY BANK
By
-------------------------------------
Name
-----------------------------------
Title
----------------------------------
Principal Office and Lending Office:
---------------------------------------
----------------------------------------
Page 25
ARKANSAS STATE BANK
By
-------------------------------------
Name
-----------------------------------
Title
----------------------------------
Principal Office and Lending Office:
---------------------------------------
----------------------------------------
"AGENT"
BANK OF ARKANSAS, N.A.
By
-------------------------------------
Jeffrey R. Dunn, President
Page 26
"PAYING AGENT"
BANK OF OKLAHOMA, N.A.
By
-------------------------------------
Name
-----------------------------------
Title
----------------------------------
Page 27
ADDITIONAL LENDER
(If more than one Additional Lender, each shall
execute an original of this page separately.)
By execution hereof, Additional Lender hereby acknowledges and confirms
that: (i) it has received a copy of this Agreement with all Exhibits attached,
and such other documents and information as it has deemed appropriate to make
its decision to enter into this Agreement; (ii) it agrees to all terms and
provisions contained therein, and agrees to be bound thereby; (iii) it will
perform in accordance with their terms all of the obligations which by the terms
of this Agreement are required to be performed by it as a Bank hereunder; and
(iv) the Commitment of Additional Lender hereunder shall be $_________________.
Executed this day of , 2001.
---- ----------------
"ADDITIONAL LENDER"
---------------------------------------
----------------------------------------
By
-------------------------------------
Name
-----------------------------------
Title
----------------------------------
Principal Office and Lending Office:
---------------------------------------
----------------------------------------
Notice Address:
---------------------------------------
----------------------------------------
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