RESTATED
REVOLVING CREDIT AGREEMENT
This Restated Revolving Credit Agreement (this "Loan Agreement") is
entered into by and among AMERICREDIT CORP., a Texas corporation ("Company"),
AMERICREDIT FINANCIAL SERVICES, INC., a Delaware corporation, AMERICREDIT
OPERATING CO., INC., a Delaware corporation, AMERICREDIT PREMIUM FINANCE,
INC., a Delaware corporation, and ACF INVESTMENT CORP., a Delaware
corporation, and ▇▇▇▇▇ FARGO BANK (TEXAS), NATIONAL ASSOCIATION, BANK ONE,
TEXAS, N.A., LASALLE NATIONAL BANK, THE SUMITOMO BANK, LIMITED, ▇▇▇▇▇▇ TRUST
AND SAVINGS BANK, COMERICA BANK-TEXAS, TEXAS COMMERCE BANK NATIONAL
ASSOCIATION, BANKAMERICA BUSINESS CREDIT, INC., THE BANK OF NOVA SCOTIA, CIBC
INC., CREDIT LYONNAIS NEW YORK BRANCH, BANKBOSTON, N.A., and THE LONG-TERM
CREDIT BANK OF JAPAN, LIMITED, ▇▇▇▇▇ FARGO BANK (TEXAS), NATIONAL
ASSOCIATION, as agent for the Banks ("Agent") and BANK ONE, TEXAS, N.A.
("Co-Agent").
W I T N E S S E T H:
WHEREAS, AmeriCredit Corp., AmeriCredit Financial Services, Inc., Agent
and certain of Banks entered into that one certain Revolving Credit Agreement
dated September 21, 1994; and
WHEREAS, AmeriCredit Corp., AmeriCredit Financial Services, Inc.,
AmeriCredit Operating Co., Inc., Guarantors, Agent and certain of the Banks
entered into that one certain Restated Revolving Credit Agreement dated June
2, 1995; and
WHEREAS, AmeriCredit Corp., AmeriCredit Financial Services, Inc.,
AmeriCredit Operating Co., Inc., Guarantors, Agent and certain of the Banks
entered into that one certain Second Restated Revolving Credit Agreement
dated October 7, 1996 (the "Prior Loan Agreement"); and
WHEREAS, AmeriCredit Corp., AmeriCredit Financial Services, Inc.,
AmeriCredit Operating Co., Inc. (individually, a "Borrower" and collectively,
the "Borrowers"), Guarantors, Agent and Banks have agreed to amend and
restate the Prior Loan Agreement in its entirety.
NOW, THEREFORE, in consideration of the mutual promises herein contained
and for other valuable consideration, the parties hereto do hereby agree to
amend and restate the Prior Loan Agreement in its entirety as follows:
ARTICLE I
DEFINITION OF TERMS
For the purposes of this Loan Agreement, unless the context requires
otherwise, the following terms shall have the respective meanings assigned to
them in this Article I below:
"ADDITIONAL WAREHOUSE FACILITY" shall mean any additional nonrecourse
credit facility or arrangement, other than a Securitization, pursuant to
which Borrowers or their Affiliates sell or refinance Finance Contracts
securing Obligations under the Loan Documents.
"ADJUSTED INDEBTEDNESS" shall mean the Indebtedness of the Company and
its Subsidiaries as reported on the balance sheet of Company, less
obligations related to Securitizations and obligations related to Additional
Warehouse Facilities, that are in each case nonrecourse to the Borrowers and
that are reported on the balance sheet of Company.
"ADJUSTED INTERBANK RATE" shall, with respect to each Interest Period,
mean on any day thereof the quotient of (a) the Interbank Offered Rate with
respect to such Interest Period, DIVIDED BY (b) the remainder of 1.00 MINUS
the Eurodollar Reserve Requirement in effect on such day.
"ADVANCE" shall have the meaning assigned to it in Section 2.01 hereof.
"AFFILIATE" of any designated Person means any Person that has a
relationship with the designated Person whereby either of such Persons
directly or indirectly controls or is controlled by or is under common
control with the other, or holds or beneficially owns five percent (5%) or
more of any class of voting securities of the other. For this purpose,
"control" means the power, direct or indirect, of one Person to direct or
cause direction of the management and policies of another, whether by
contract, through voting securities or otherwise. Notwithstanding the
foregoing, no Person shall be deemed to be an Affiliate of another solely by
reason of such Person's being a participant in a joint operating group or
joint undivided ownership group. For purposes of this Loan Agreement, the
term "Affiliate" shall include special purpose subsidiary corporations and
trusts formed or sponsored by the Company or its subsidiaries for the purpose
of facilitating one or more Securitizations and/or an Additional Warehouse
Facility.
"APPLICABLE MARGIN" shall mean the percentage set forth below opposite
the rating by Standard & Poors, ▇▇▇▇▇'▇ Investor Service or Fitch Investor
Service in effect with respect to the Indebtedness of Borrowers to Banks on
the date of the particular Eurodollar Borrowing or at any time during an
Interest Period:
Debt Rating Percentage
----------- ----------
Unrated or less than
BBB-/Baa3 1.55%
BBB-/Baa3 1.40%
BBB/Baa2 or higher 1.25%
In the event that the Ratings are not the same at a particular time, the
Applicable Margin shall be based upon the highest rating assigned to such
Indebtedness by Standard & Poors, ▇▇▇▇▇'▇ Investor Service or Fitch Investor
Service.
"ARBITRATION PROGRAM" shall have the meaning assigned to it in Article
XI hereof.
"BANKS" shall mean ▇▇▇▇▇ Fargo Bank (Texas), National Association and
all other banks which are parties to this Loan Agreement or any amendment
thereto. BANK shall mean any one of Banks.
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"BORROWERS" shall mean AmeriCredit Corp., a Texas corporation,
AmeriCredit Financial Services, Inc., a Delaware corporation, and AmeriCredit
Operating Co., Inc., a Delaware corporation.
"BUSINESS DAY" shall mean a day upon which business is transacted by
national banks in ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ and San Francisco,
California.
"CAPITAL LEASE" shall mean, as of any date, any lease of property, real
or personal, which would be capitalized on a balance sheet of the lessee
prepared as of such date, in accordance with GAAP.
"CAPITAL LEASE OBLIGATION" shall mean any rental obligation which, under
GAAP, is or will be required to be capitalized on the books of the Company
or any Subsidiary, taken at the amount thereof accounted for as indebtedness
(net of interest expense) in accordance with GAAP.
"COMMITMENT" shall have the meaning assigned to it in Section 2.01
hereof.
"CONSEQUENTIAL LOSS" shall mean, with respect to the payment by any of
Borrowers or any of Guarantors of all or any portion of the then outstanding
principal amount of any Bank's Eurodollar Advance on a day other than the
last day of the Interest Period related thereto, any loss, cost or expense
incurred by such Bank as a result of the timing of such payment or in
redepositing such principal amount, including the greater of (a) the sum of
(i) the interest which, but for such payment, such Bank would have earned in
respect of such principal amount so paid, for the remainder of the Interest
Period applicable to such sum, reduced, if such Bank is able to redeposit
such principal amount so paid for the balance of such Interest Period, by the
interest earned by such Bank as a result of so redepositing such principal
amount PLUS (ii) any expense or penalty incurred by such Bank on redepositing
such principal amount or (b) one hundred dollars ($100) for each prepayment
of a Eurodollar Advance other than on the last day of the Interest Period
applicable thereto.
"CONSOLIDATED" shall mean the consolidation of any Person, in accordance
with GAAP, with its properly consolidated subsidiaries. References herein to
a Person's Consolidated financial statements, financial position, financial
condition, liabilities, etc., refer to the consolidated financial statements,
financial position, financial condition, liabilities, etc. of such Person and
its properly consolidated subsidiaries.
"CONTROLLED GROUP" shall mean (i) the controlled group of corporations
as defined in section 1563 of the United States Internal Revenue Code of
1986, as amended, or (ii) the group of trades or business under common
control as defined in section 414(c) of the United States Internal Revenue
Code of 1986, as amended, of which Company is part or may become a part.
"CREDIT ENHANCEMENT ASSETS" shall mean any asset, reflected as such on
the Consolidated balance sheet of the Company and its Subsidiaries, created
or arising as a result of any arrangement wherein the Company (or one or more
of its Subsidiaries) or a third party provides credit support in connection
with a Securitization or Additional Warehouse Facility, including but not
limited to the following: (i) subordinated interests retained by the Company
or any Subsidiary in a special purpose financing entity or trust created for
a Securitization or Additional Warehouse Facility, (ii) restricted cash
accounts maintained by the Company, any
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Subsidiary or any special purpose financing entity in connection with a
Securitization or Additional Warehouse Facility, and (iii) the excess
servicing receivable, as such asset is determined from time to time in
accordance with GAAP and reflected on the Consolidated balance sheet of
Company and its Subsidiaries.
"DEALER" shall mean a retail vendor of motor vehicles from which
AmeriCredit Financial Services, Inc. acquires Finance Contracts which is not
an Affiliate of any of Borrowers.
"DEALER DISCOUNT" shall mean, with respect to a Finance Contract, the
amount equal to the difference between (i) the face amount of the Finance
Contract, less unearned interest or finance charges and fees, and (ii) the
amount of cash advanced to the Dealer for the purchase of such Finance
Contract.
"DELINQUENT LOANS" shall mean Net Indirect Loans having five percent
(5.0%) or more of an installment payment or final payment which is more than
60 days past due (without regard to any grace period) on a contractual basis
except Net Indirect Loans which were secured by a motor vehicle that has been
repossessed.
"DIVIDENDS", in respect of any corporation, shall mean:
(1) Cash distributions or any other distributions on, or in respect
of, any class of capital stock of such corporation, except for
distributions made solely in shares of stock of the same class;
and
(2) Any and all funds, cash or other payments made in respect of the
redemption, repurchase or acquisition of such stock, unless such
stock shall be redeemed or acquired through the exchange of such
stock with stock of the same class.
"DOLLARS" and the sign "$" shall mean lawful currency of the United
States of America.
"DOMESTIC FINANCE CONTRACT" shall mean a Finance Contract that is
denominated and payable only in Dollars.
"EBIT" shall mean, for any period, income of the Company for such period
from operations after deducting all expenses except interest and taxes and
eliminating all extraordinary items.
"ELIGIBLE FINANCE CONTRACT" shall mean a Finance Contract,
(i) that is secured by an Eligible Vehicle,
(ii) that represents a Domestic Finance Contract with an Obligor
(other than an Affiliate of Borrower),
(iii) that was originated by a Dealer unless otherwise consented
to in writing by the Agent (which consent shall not be unreasonably
withheld),
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(iv) that is not delinquent in the payment of any monthly
installment (without regard to any stated grace period) more than thirty
(30) days on a contractual basis prior to any repossession of the related
Eligible Vehicle,
(v) that has not been modified in any respect, unless the Finance
Contract constitutes an Eligible Modified Finance Contract,
(vi) in respect of which the related Eligible Vehicle has not been
repossessed,
(vii) that is not a Stayed Loan,
(viii) that, as set forth in a written opinion, in form and
substance, and from legal counsel, reasonably satisfactory to the Agent,
constitutes chattel paper in which a security interest may be perfected
under the UCC of the applicable jurisdiction by filing financing statements
and making a notation of a security interest on the chattel paper and
without taking possession of either the agreements evidencing such Finance
Contract or related certificates of title,
(ix) that is not subject to a Lien in favor of a Person other than
the Agent on behalf of the Banks and that is not subject to a Lien created
in conjunction with a Securitization or an Additional Warehouse Facility;
(x) in respect of which the Dealer has received good funds from
Borrowers in payment of the Finance Contract; and
(xi) in respect of which the representations and warranties set
forth in the Security Agreement are true.
"ELIGIBLE MODIFIED FINANCE CONTRACT" shall mean a Finance Contract that
has been modified in any way which affects the contractual timing or amount
of any installment payment due under such Finance Contract and which
satisfies each of the following conditions: (1) no installment payment was
more than sixty (60) days past due at the time of any modification, (2) no
modification extended the original maturity date by more than ninety (90)
days, (3) no modification caused a permanent reduction in any monthly
installment payment by more than five percent (5%), (4) the modification did
not permit the deferral of more than two (2) installment payments, (5) not
more than one (1) modification involving the deferral of two (2) installment
payments or not more than two (2) modifications involving the deferral of one
(1) installment payment has occurred during any twelve (12) month period, and
(6) is otherwise an Eligible Finance Contract.
"ELIGIBLE VEHICLE" shall mean a new or used motor vehicle that (i) to
the best of any Borrower's knowledge is not acquired for use in a commercial
enterprise or as part of a fleet, and (ii) in respect of which any of
Borrowers (a) has, within forty five (45) days following the date of a
Finance Contract, properly filed an application seeking to obtain legal title
or a first priority lien under the applicable provisions of the motor vehicle
or other similar law of the applicable jurisdiction and (b) has obtained or
obtains, within one hundred fifty (150) days following the date of a Finance
Contract, legal title or a first priority lien under applicable provisions of
the motor vehicle or other similar law of the applicable jurisdiction.
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"ERISA" shall mean the Employee Retirement Income Security Act of 1974,
as amended, together with all regulations issued pursuant thereto.
"ENVIRONMENTAL CLAIM" shall mean any written notice by any Person
alleging potential liability or responsibility for (a) any removal or
remedial action, including, without limitation, any clean-up, removal or
treatment of any Hazardous Material or any action to prevent or minimize the
release or movement of any Hazardous Materials through or in the air, soil,
surface water, ground water or other property, (b) damage to the environment,
or costs with respect thereto, or (c) personal injury (including sickness,
disease or death), resulting from or based upon (i) the presence, release or
movement (including sudden or nonsudden, accidental or nonaccidental, leaks
or spills) of any Hazardous Material at, in or from the environment or any
property, whether or not owned by the Company, or (ii) circumstances forming
the basis of any violation, or alleged violation, of any Environmental Law or
any permit issued to Company or any of its Subsidiaries pursuant to any
Environmental Law.
"ENVIRONMENTAL LAWS" shall mean the Comprehensive Environmental
Response, Compensation, and Liability Act (42 U.S.C. Section 9601 ET SEQ.),
the Hazardous Material Transportation Act (49 U.S.C. Section 1801 ET SEQ.),
the Resource Conservation and Recovery Act (42 U.S.C. Section 6901 ET SEQ.),
the Federal Water Pollution Control Act (33 U.S.C. Section 1251 ET SEQ.),
the Clean Air Act (42 U.S.C. Section 7401 ET SEQ.), the Toxic Substances
Control Act (15 U.S.C. Section 2601 ET SEQ.), and the Occupational Safety
and Health Act (29 U.S.C. Section 651 ET SEQ.), as such laws have been or
hereafter may be amended or supplemented, and any and all analogous future
federal, or present and future state or local laws, and similar laws of
jurisdictions other than the United States, to which Company or any of its
Subsidiaries or any of its or their properties are subject.
"EURODOLLAR ADVANCE" shall mean any principal amount under a Note with
respect to which the interest rate is calculated by reference to the Adjusted
Interbank Rate for a particular Interest Period.
"EURODOLLAR BORROWING" shall mean any Borrowing composed of Eurodollar
Advances.
"EURODOLLAR BUSINESS DAY" shall mean a Business Day on which dealings in
Dollars are carried out in the London Interbank market.
"EURODOLLAR RESERVE REQUIREMENT" shall, on any day, mean that percentage
(expressed as a decimal fraction rounded up to the nearest 1/100th) which is
in effect on such day, as provided by the Board of Governors of the Federal
Reserve System (or any successor governmental body) applied for determining
the maximum reserve requirements (including without limitation, basic,
supplemental, marginal and emergency reserves) under Regulation D with
respect to "Eurocurrency liabilities" as currently defined in Regulation D,
or under any similar or successor regulation with respect to Eurocurrency
liabilities or Eurocurrency funding. Each determination by Agent of the
Eurodollar Reserve Requirement shall, in the absence of manifest error, be
conclusive and binding.
"EVENT OF DEFAULT" shall have the meaning assigned to it in Article X
hereof.
"FDIC" shall mean the Federal Deposit Insurance Corporation (or any
successor thereof).
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"FEDERAL FUNDS RATE" shall mean, for any period, a fluctuating interest
rate per annum equal for each day during such period to the weighted average
of the rates on overnight Federal funds transactions with members of the
Federal Reserve System arranged by Federal funds brokers, as published for
such day (or, if such day is not a Business Day, for the next preceding
Business Day) by the Federal Reserve Bank of New York, or, if such rate is
not so published for any day which is a Business Day, the average of the
quotations for such day on such transactions received by the Agent from three
Federal funds brokers of recognized standing selected by Agent.
"FINANCE CONTRACT" shall mean a motor vehicle installment sales contract
assigned to AmeriCredit Financial Services, Inc. or an Affiliate of
AmeriCredit Financial Services, Inc. that is secured by title to, security
interests in, or liens on a motor vehicle under applicable provisions of the
motor vehicle or other similar law of the jurisdiction in which the motor
vehicle is titled and registered by the purchaser at the time the contract is
originated.
"FLOATING BASE ADVANCE" shall mean any principal amount under a Note
with respect to which the interest rate is calculated by reference to the
Floating Base Rate.
"FLOATING BASE BORROWING" shall mean any Borrowing composed of Floating
Base Advances.
"FLOATING BASE RATE" shall mean the greater of (a) the Floating Prime
Rate in effect from day to day or (b) the Federal Funds Rate plus one half of
one percent (.5%).
"FLOATING PRIME RATE" shall mean, on any date, the rate of interest most
recently announced within ▇▇▇▇▇ Fargo Bank, N.A. at its principal office in
San Francisco, California as its Prime Rate, with the understanding that such
Prime Rate is one of its base rates and serves as the basis upon which
effective rates of interest are calculated for those loans making reference
thereto, and is evidenced by the recording thereof after its announcement in
such internal publication or publications as ▇▇▇▇▇ Fargo Bank, N.A. may
designate.
"GENERALLY ACCEPTED ACCOUNTING PRINCIPLES" or "GAAP" shall mean those
generally accepted accounting principles and practices which are recognized
as such by the American Institute of Certified Public Accountants pursuant to
its Statement on Auditing Standards No. 69 and which are consistently applied
for all periods after the date hereof so as to properly reflect the financial
condition, and the results of operations and cash flows of Company on a
consolidated basis, except that any accounting principle or practice required
to be changed by the American Institute of Certified Public Accountants in
order to continue as a generally accepted accounting principle or practice
may so be changed.
"GOVERNMENTAL AUTHORITY" shall mean any government (or any political
subdivision or jurisdiction thereof), court, bureau, agency or other
governmental authority having jurisdiction over any of Borrowers or any of
their Subsidiaries or any of its or their business, operations or properties.
"GUARANTOR" shall mean any of the Guarantors.
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"GUARANTORS" shall mean AmeriCredit Premium Finance, Inc., a Delaware
corporation, and ACF Investment Corp., a Delaware corporation, and any other
corporation which executes a Guaranty Agreement after the date of this Loan
Agreement.
"GUARANTY" of any Person shall mean any contract, agreement or
understanding of such Person pursuant to which such Person guarantees, or in
effect guarantees, any Indebtedness of any other Person (the "Primary
Obligor") in any manner, whether directly or indirectly, including without
limitation agreements:
(1) to purchase such Indebtedness or any property constituting security
therefor;
(2) to advance or supply funds (a) for the purchase or payment of such
Indebtedness, or (b) to maintain working capital or other balance
sheet conditions, or otherwise to advance or make available funds for
the purchase or payment of such Indebtedness;
(3) to purchase property, securities or services primarily for the purpose
of assuring the holder of such Indebtedness of the ability of the
Primary Obligor to make payment of the Indebtedness; or
(4) otherwise to assure the holder of the Indebtedness of the Primary
Obligor against loss in respect thereof; EXCEPT THAT "Guaranty" shall
not include the endorsement by Company or a Subsidiary in the ordinary
course of business of negotiable instruments or documents for deposit
or collection.
"GUARANTY AGREEMENT" shall mean the guaranty agreement executed by the
Guarantors, in the form of EXHIBIT B hereto, as the same may be amended or
supplemented from time to time.
"HAZARDOUS MATERIALS" shall mean those substances which are regulated by
or form the basis of liability under any Environmental Laws.
"INDEBTEDNESS" shall mean, with respect to any Person, all indebtedness,
obligations and liabilities of such Person, including without limitation:
(1) all "liabilities" which would be reflected on a balance sheet of
such Person, prepared in accordance with Generally Accepted
Accounting Principles;
(2) all obligations of such Person in respect of any Capital Lease;
(3) all obligations of such Person in respect of any Guaranty; and
(4) the undrawn face amount of all outstanding Letters of Credit and all
indebtedness and obligations resulting from draws under Letters of
Credit.
"INDIRECT LOAN" shall mean any Finance Contract or promissory note
received for or in connection with the financing of the sale of a motor
vehicle by a Dealer.
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"INTERBANK OFFERED RATE" shall mean, with respect to each Interest
Period, the average of the rate of interest (rounded upwards, if necessary to
the next 1/16th of 1%) at which deposits in an amount approximately equal to
the requested Borrowing and for the same term as the particular Interest
Period are offered to Agent in the London Interbank Eurodollar market for
delivery on the first day of the Interest Period as determined at 11:00 A.M.
(London, England time) two (2) Eurodollar Business Days prior thereto (except
in the case of a Swing Line Borrowing, the rate of interest shall not be
determined two (2) Eurodollar Business Days prior thereto).
"INTERCREDITOR AGREEMENT" shall mean that one certain Intercreditor
Agreement dated as of October 8, 1997 by and among The Chase Manhattan Bank,
▇▇▇▇▇ Fargo Bank (Texas), National Association, CP Funding Corp. and
AmeriCredit Financial Services, Inc.
"INTEREST COVERAGE RATIO" shall mean (a) the sum of EBIT and the
amortization of excess servicing receivable LESS the gain on sale of Finance
Contracts DIVIDED BY (b) total interest expense determined in accordance with
GAAP.
"INTEREST PERIOD" shall mean, with respect to a Eurodollar Advance, a
period commencing:
(i) on the borrowing date of such Eurodollar Advance made pursuant to
Section 2.02 of this Loan Agreement; or
(ii) on the Conversion Date pertaining to such Eurodollar Advance, if
such Eurodollar Advance is made pursuant to a conversion as
described in Section 2.02(c) hereof; or
(iii) on the date of borrowing specified in the Request for
Borrowing in the case of a rollover to a successive
Interest Period,
and ending one (1), two (2) or three (3) months thereafter (in the case of a
Eurodollar Advance), as Borrowers shall elect in accordance with Section
2.02(c) of this Loan Agreement; provided, that:
(A) any Interest Period which would otherwise end on a day which is not
a Eurodollar Business Day shall be extended to the next succeeding
Eurodollar Business Day UNLESS such Eurodollar Business Day falls in
another calendar month in which case such Interest Period shall end
on the next preceding Eurodollar Business Day;
(B) any Interest Period which begins on the last Eurodollar Business Day
of a calendar month (or on a day for which there is no numerically
corresponding day in the calendar month or at the end of such
Interest Period) shall, subject to clause (A) above, end on the last
Eurodollar Business Day of a calendar month; and
(C) if the Interest Period for any Eurodollar Advance would otherwise
end after the Termination Date such Interest Period shall end on the
Termination Date.
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"INVESTMENT" shall mean any direct or indirect purchase or other
acquisition of, or a beneficial interest in, capital stock or other
securities or ownership interests of any other Person, or any direct or
indirect loan, advance (other than advances to employees for moving and
travel expenses, drawing accounts and similar expenditures in the ordinary
course of business) or capital contribution to or investment in any other
Person, including without limitation the incurrence or sufferance of
Indebtedness or accounts receivable of any other Person which are not current
assets or do not arise from sales to that other Person in the ordinary course
of business.
"LAW" shall mean all statutes, laws, ordinances, rules, regulations,
orders, writs, injunctions or decrees of any Tribunal.
"LETTER OF CREDIT" shall mean any outstanding standby letter of credit
or commercial letter of credit for the account of any of Borrowers.
"LIEN" shall mean any mortgage, pledge, security interest, encumbrance,
lien or charge of any kind, including without limitation, any agreement to
give any of the foregoing, any conditional sale or other title retention
agreement, any lease in the nature thereof, and the filing of or agreement to
give any financing statement or other similar form of public notice under the
Laws of any jurisdiction.
"LOAN DOCUMENTS" shall mean this Loan Agreement, the Notes, (including
any renewals, extensions and refundings thereof), the Security Agreement, the
Guaranty Agreement, the Intercreditor Agreement, and any agreements or
documents (and with respect to this Loan Agreement, and such other agreements
and documents, any amendments or supplements thereto or modifications
thereof) executed or delivered pursuant to the terms of this Loan Agreement.
"MAJORITY BANKS" shall mean, at any time, Banks holding Notes
representing at least sixty-six and 2/3 percent (66 2/3%) of the aggregate
unpaid principal amount of the aggregate Revolving Credit Loans or if no
Revolving Credit Loans are at the time outstanding, Banks having at least
sixty-six and 2/3 percent (66 2/3%) of the Total Revolving Credit Commitment.
"MATERIAL ADVERSE EFFECT" shall mean any act, circumstance, occurrence
or event that (i) could have any adverse effect whatsoever upon the validity
or enforceability of the Loan Documents, (ii) causes or, with notice or lapse
of time, or both, could cause an Event of Default under this Loan Agreement,
(iii) is or reasonably could be expected to be material and adverse to the
properties, business, prospects or conditions (financial or otherwise) of any
of Borrowers or the Guarantors or their respective Subsidiaries on a
Consolidated basis, or (iv) could reasonably be expected to impair the
ability of any of Borrowers to perform their respective obligations under the
Loan Documents in any material respect.
"MAXIMUM RATE" shall mean, on any day, the highest nonusurious rate of
interest (if any) permitted by applicable law on such day. Banks hereby
notify Borrowers that, and disclose to Borrowers that, for purposes of Tex.
Rev. Civ. Stat. ▇▇▇. Art. 5069-1.04, as it may from time to time be amended,
the "applicable rate ceiling" shall be the "indicated rate" ceiling from time
to time in effect as limited by Art. 5069-1.04(b); provided, however, that to
the extent permitted by applicable law, Banks reserve the right to change the
"applicable rate ceiling" from time to time by further notice and disclosure
to Borrowers; and, provided further, that the
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"highest nonusurious rate of interest permitted by applicable law" for
purposes of this Loan Agreement and the Notes shall not be limited to the
applicable rate ceiling under Art. 5069-1.04 if federal laws or other state
laws now or hereafter in effect and applicable to this Loan Agreement and the
Notes (and the interest contracted for, charged and collected hereunder or
thereunder) shall permit a higher rate of interest.
"MORTGAGE SUBSIDIARY" shall mean any subsidiary of Borrowers (whether
now existing or hereafter formed or acquired) engaged in the business of
making, originating or taking assignments of residential mortgage loans to
consumer borrowers.
"NET AMOUNT" shall mean with respect to Eligible Finance Contracts, as
of any date, the outstanding face amount thereof as of such date,
MINUS (1) (without duplication) to the extent included in the face amount
thereof, unearned interest or finance charges with respect to future periods
(or reserves with respect to unearned interest or finance charges) and (2)
the aggregate amount by which the aggregate unpaid principal balance of
Eligible Finance Contracts which have been modified during the preceding
three (3) month period exceeds three and one-half percent (3.5%) of the
aggregate unpaid principal balance of all Eligible Finance Contracts.
"NET CREDIT LOSSES" shall mean, for any period, the actual aggregate
amount of principal of Indirect Loans charged off prior to the application of
the Dealer Discount or reserves during such period LESS the aggregate amount
of Recoveries on Indirect Loans during such period.
"NET INCOME" or "NET LOSS" shall mean, with respect to any period, the
consolidated net earnings or net loss, as the case may be, of Company and its
Subsidiaries for such period as determined in accordance with GAAP.
"NET INDIRECT LOANS" shall mean the aggregate amount of all Indirect
Loans LESS the amount of unearned finance charges.
"NOTES" shall mean the promissory notes executed by Borrowers and
delivered pursuant to the terms of this Loan Agreement, together with any
renewals, extensions or modifications thereof. "Note" shall mean any of the
Notes.
"OBLIGATIONS" shall mean all present and future indebtedness,
obligations, and liabilities of Borrowers to Banks or any of Banks, and all
renewals and extensions thereof, or any part thereof, arising pursuant to
this Loan Agreement or represented by the Notes, and all interest accruing
thereon (including, without limitation, interest accruing after bankruptcy
whether or not a claim for post-petition interest is allowed in such
proceeding), and attorneys' fees incurred in the enforcement or collection
thereof, regardless of whether such indebtedness, obligations and liabilities
are direct, indirect, fixed, contingent, joint, several or joint and several;
together with all indebtedness, obligations and liabilities of Borrowers
evidenced or arising pursuant to any of the other Loan Documents, and all
renewals and extensions thereof, or part thereof.
"OBLIGOR" shall mean any one or more individuals (other than a Dealer)
who are liable in whole or in part on a Finance Contract (determined without
regard to limitations, if any, on recourse).
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"OFFICER'S CERTIFICATE" shall mean a certificate signed in the name of
the Company by its chief executive officer, its president, its chief
financial officer, its treasurer or one of its vice presidents.
"PAST DUE RATE" shall mean the lesser of (a) the Floating Base Rate in
effect from day-to-day, plus five percent (5.0%), or (b) the Maximum Rate.
"PBGC" shall mean the Pension Benefit Guaranty Corporation, and any
successor to all or any of the Pension Benefit Guaranty Corporation's
functions under ERISA.
"PERCENTAGE" shall mean, with respect to any Bank, such Bank's Pro Rata
share of the Total Revolving Credit Commitment, as set forth in Section 2.01
opposite its name under the heading "Revolving Commitment Percentage."
"PERMITTED LIENS" shall mean: (i) Liens on equipment and fixed assets,
including purchase money Liens, relating to or securing obligations in an
aggregate amount not to exceed the positive difference between (a) twenty
million dollars ($20,000,000) and (b) the aggregate amount of Liens described
in (viii) below at any time; (ii) pledges or deposits made to secure payment
of Worker's Compensation (or to participate in any fund in connection with
Worker's Compensation), unemployment insurance, pensions or social security
programs; (iii) Liens imposed by mandatory provisions of law such as for
materialmen's, mechanics, warehousemen's and other like Liens arising in the
ordinary course of business, securing Indebtedness whose payment is not yet
due unless the same are being contested in good faith and for which adequate
reserves have been provided; (iv) Liens for taxes, assessments and
governmental charges or levies imposed upon a Person or upon such Person's
income or profits or property, if the same are not yet due and payable or if
the same are being contested in good faith and as to which adequate reserves
have been provided; (v) Liens with respect to good faith deposits in
connection with tenders, leases, real estate bids or contracts (other than
contracts involving the borrowing of money unless such Liens are otherwise
Permitted Liens), pledges or deposits to secure public or statutory
obligations, deposits to secure (or in lieu of) surety, stay, appeal or
customs bonds and deposits to secure the payment of taxes, assessments,
customs duties or other similar charges; (vi) encumbrances consisting of
zoning restrictions, easements, or other restrictions on the use of real
property, provided that such do not impair the use of such property for the
uses intended, and none of which is violated by Company or any of its
Subsidiaries in connection with existing or proposed structures or land use;
(vii) Liens and encumbrances created and existing in connection with
Securitizations and any Additional Warehouse Facility; (viii) Liens on short
term investments pledged to Texas Commerce Bank in an aggregate amount not to
exceed two million dollars ($2,000,000) with respect to the Mortgage
Subsidiary; and (ix) Liens on Credit Enhancement Assets.
"PERSON" shall mean and include an individual, partnership, joint
venture, corporation, limited liability company, trust, Tribunal,
unincorporated organization or government or any department, agency or
political subdivision thereof.
"PLAN" shall mean an employee benefit plan or other plan maintained by
Company for employees of Company and any of its Subsidiaries and/or covered
by Title IV of ERISA, or subject to the minimum funding standards under
Section 412 of the Internal Revenue Code of 1986, as amended.
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"PRO RATA" and "PRO RATA PART" shall mean, when determined for any Bank,
the proportion, stated as a percentage, that such Bank's Commitment bears to
the Total Commitment.
"RATINGS" shall mean the rating assigned to the Indebtedness of
Borrowers to Banks by Standard & Poors, ▇▇▇▇▇'▇ Investor Service and Fitch
Investor Service.
"RECOVERIES" shall mean amounts realized on the sale of collateral
securing a Finance Contract, rebates on ancillary products and collections on
charged-off deficiencies and proceeds of insurance claims related to the
collateral less direct costs of repossession.
"REGULATION U" shall mean Regulation U promulgated by the Board of
Governors of the Federal Reserve System, 12 C.F.R. Part 221, or any other
regulation hereafter promulgated by said Board to replace the prior
Regulation U and having substantially the same function.
"REGULATION X" shall mean Regulation X promulgated by the Board of
Governors of the Federal Reserve System, 12 C.F.R. Part 224, or any other
regulation hereafter promulgated by said Board to replace the prior
Regulation X and having substantially the same function.
"REGULATORY DEFECT" shall mean (i) any failure of any of Borrowers or
any of the Guarantors to comply with any Law or any rules, regulations and
other requirements of any Governmental Authority which would have a Material
Adverse Effect, and/or (ii) any unfavorable examination report shall be
received by any of Borrowers or any of the Guarantors from any Governmental
Authority regarding any of the businesses or activities in which the
Borrowers and Guarantors are engaged, if such report would have a Material
Adverse Effect.
"REPORTABLE EVENT" shall have the meaning assigned to that term in Title
IV of ERISA.
"REPOSSESSED LOANS" shall mean the aggregate amount of all Indirect
Loans with respect to which the motor vehicle securing the payment of the
Indirect Loan has been repossessed by Borrowers and all applicable time
periods for reinstatement of the Indirect Loan or redemption of the motor
vehicle have expired.
"REVOLVING CREDIT BORROWING BASE" shall mean, as of any date of
calculation, an amount equal to eighty percent (80%) of the Net Amount of
Eligible Finance Contracts pledged to the Agent for the ratable benefit of
the Banks pursuant to the Security Agreement; provided, however, if the ratio
of the aggregate Dealer Discount to Net Indirect Loans originated in a
trailing three (3) month period exceeds five percent (5.0%), such Revolving
Credit Borrowing Base advance rate percentage of the Net Amount of Eligible
Finance Contracts shall be reduced by two percentage points for each full
percentage point that the ratio of the aggregate Dealer Discount to Net
Indirect Loans originated in a trailing three (3) month period, as of any
date of calculation, exceeds five percent (5.0%).
"REVOLVING CREDIT LOANS" shall have the meaning assigned to it in
Section 2.01 hereof.
"SECURITIZATION" shall mean a transaction wherein an identified pool of
Finance Contracts and related documents subject to a security interest in
favor of Banks or other Additional Warehouse Facility are sold, pledged or
conveyed by AmeriCredit Financial Services, Inc., or an Affiliate thereof, to
a grantor trust or other special purpose financing entity as
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collateral security for the issuance by such grantor trust or other special
purpose financing entity of notes, certificates or other evidence of
indebtedness.
"SECURITY AGREEMENT" shall mean the Restated Security Agreement, dated
as of October 3, 1997, delivered by Borrowers to the Agent for the benefit of
the Banks, granting the security interests in certain of the properties and
assets of each of Borrowers described therein, as amended or supplemented
from time to time.
"SENIOR NOTES" shall mean those senior unsecured notes of the Company
due 2004 and all Guarantees thereof by the other Borrowers, Guarantors and
the Mortgage Subsidiary sold pursuant to a Preliminary Offering Memorandum
dated January 20, 1997 and issued or to be issued pursuant to an Indenture
between the Company and the trustee named therein, and any new issue of debt
securities of the Company and all Guarantees thereof by the other Borrowers,
Guarantors and the Mortgage Subsidiary with the same terms issued in exchange
for such senior unsecured notes.
"STAYED LOAN" shall mean a Finance Contract:
(i) as to which an Obligor obligated on such Finance Contract (any
such Obligor, together with its Subsidiaries, herein, collectively, the
"Applicable Obligor"), shall file a petition or seek relief under or take
advantage of any insolvency law; make an assignment for the benefit of its
creditors; commence a proceeding for the appointment of a receiver,
trustee, liquidator, custodian or conservator of itself or of the whole or
substantially all of its property; file or consent to a petition under any
chapter of the United States Bankruptcy Code, as amended (11 U.S.C. Section
101 ET SEQ.), or file a petition or seek relief under or take advantage of
any other similar law or statute of the United States of America, any state
thereof or any foreign country; or
(ii) as to which a court of competent jurisdiction shall enter an
order, judgment or decree appointing or authorizing a receiver, trustee,
liquidator, custodian or conservator of the Applicable Obligor or of the
whole or substantially all of its property, or enter an order for relief
against the Applicable Obligor in any case commenced under any chapter of
the United States Bankruptcy Code, as amended, or grant relief under any
similar law or statute of the United States of America, any state thereof
or any foreign country; or as to which, under the provisions of any law
for the relief or aid of debtors, a court of competent jurisdiction or a
receiver, trustee, liquidator, custodian or conservator shall assume
custody or control or take possession of the Applicable Obligor or of the
whole or substantially all of its property; or as to which there is
commenced against the Applicable Obligor any proceeding for any of the
foregoing relief or as to which a petition is filed against the Applicable
Obligor under any chapter of the United States Bankruptcy Code, as amended,
or under any other similar law or statute of the United States of America
or any state thereof or any foreign country and such proceeding or petition
remains undismissed for a period of 60 days; or as to which the applicable
Obligor by any act indicates its consent to, approval of or acquiescence in
any such proceeding or petition;
PROVIDED, HOWEVER, that a Finance Contract shall cease to be a Stayed Loan
at such time as so long as (A) all principal, interest and other amounts
theretofore due and payable according to the terms of such Finance Contract
(as such terms have been approved,
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adjusted and/or confirmed pursuant to court order or otherwise in any
proceeding referred to in clause (i) or (ii) of this definition) have
been irrevocably paid to or collected or received by Borrower and all
such amounts thereafter due and payable shall be paid to or collected or
received by the Borrower when due (or within any stated grace period)
and (B) such Finance Contract shall be secured to the same extent as
before such Finance Contract first became a Stayed Loan and no dispute
regarding the existence, validity or priority of such security shall be
pending in any court or asserted in any pending appeal.
"SUBSIDIARY" shall mean, as to any particular parent corporation, any
corporation of which more than fifty percent (by number of votes) of the
Voting Stock shall be owned by such parent corporation and/or one or more
corporations which themselves have more than fifty percent (by number of
votes) of their Voting Stock owned by such parent corporation. As used
herein, the term "Subsidiary" shall also mean any "Subsidiary" of the Company.
"SWING LINE BORROWING" shall mean a Borrowing made pursuant to Section
2.03.
"SWING LINE LOAN" shall mean a loan pursuant to Section 2.03.
"SWING LINE MATURITY DATE" shall mean October 2, 1998.
"SWING LINE NOTE" shall mean that one certain promissory note executed
by Borrowers and payable to the order of ▇▇▇▇▇ Fargo Bank in the amount of
twenty million dollars ($20,000,000) and is one of the Notes.
"SWING LINE SUBFACILITY" shall mean the subfacility which shall never
exceed the aggregate of $20,000,000 as described in, and subject to the
limitation of, Section 2.03.
"SWING LINE DEBT" shall mean, on the date of determination, that portion
outstanding, under the Swing Line Subfacility.
"TAXES" shall mean all taxes, levies, assessments, fees, withholdings or
other charges at any time imposed by any Laws or Tribunal.
"TANGIBLE NET WORTH" shall mean, as of any date, the total shareholders'
equity which would appear on a consolidated balance sheet of Company prepared
as of such date in accordance with Generally Accepted Accounting Principles
LESS intangible assets which should appear on a consolidated balance sheet of
Company prepared as of such date in accordance with General Accepted
Accounting Principles.
"TERMINATION DATE" shall mean October 2, 1998.
"TRIGGER EVENT" shall mean any trigger event as defined in any of the
agreements relating to a Securitization or the equivalent.
"UCC" shall mean, with respect to any jurisdiction, the Uniform
Commercial Code as then in effect in that jurisdiction. References to terms
defined in the UCC shall mean such terms in the UCC as in effect in such
jurisdiction.
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"VOTING STOCK" shall mean, with respect to any Subsidiary, any shares of
any class of stock of such Subsidiary having general voting power under
ordinary circumstances to elect a majority of the Board of Directors of such
Subsidiary irrespective of whether at the time stock of any other class or
classes shall have or might have voting power by reason of the happening of
any contingency.
OTHER DEFINITIONAL PROVISIONS.
(a) All terms defined in this Loan Agreement shall have the
above-defined meanings when used in the Notes or any Loan Documents,
certificate, report or other document made or delivered pursuant to this Loan
Agreement, unless the context therein shall otherwise require.
(b) Defined terms used herein in the singular shall import the plural
and VICE VERSA.
(c) The words "hereof," "herein," "hereunder" and similar terms when
used in this Loan Agreement shall refer to this Loan Agreement as a whole and
not to any particular provision of this Loan Agreement.
(d) All financial and other accounting terms not otherwise defined
herein shall be defined and calculated in accordance with Generally Accepted
Accounting Principles consistently applied.
ARTICLE II
REVOLVING CREDIT LOANS
2.01. REVOLVING CREDIT COMMITMENT.
(a) REVOLVING LOAN COMMITMENTS. Subject to the terms and conditions of
this Loan Agreement and the Revolving Credit Borrowing Base limitation in
Section 2.01(b), each Bank severally agrees to extend to Borrowers, from the
date hereof through the Termination Date (the "Revolving Credit Period"), a
revolving line of credit which shall not exceed at any one time outstanding
the amount set forth opposite its name below (for each Bank, such amount is
hereinafter referred to as its "Commitment"):
Commitment
Percentage
Banks Commitment (Rounded)
----- ---------- -----------
▇▇▇▇▇ Fargo Bank (Texas), $45,000,000 14.516129035%
National Association
Bank One, Texas, N.A. $40,000,000 12.903225806%
LaSalle National Bank $30,000,000 9.677419355%
Texas Commerce Bank National $25,000,000 8.064516129%
Association
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The Sumitomo Bank, Limited $25,000,000 8.064516129%
Comerica Bank-Texas $25,000,000 8.064516129%
BankAmerica Business Credit, Inc $25,000,000 8.064516129%
▇▇▇▇▇▇ Trust and Savings Bank $20,000,000 6.▇▇▇▇▇▇▇▇▇%
The Bank of Nova Scotia $15,000,000 4.▇▇▇▇▇▇▇▇▇%
CIBC Inc. $15,000,000 4.838709677%
Credit Lyonnais New York Branch $15,000,000 4.838709677%
BankBoston, N.A. $15,000,000 4.838709677%
The Long Term Credit Bank of Japan, $15,000,000 4.838709677%
Limited ------------ --------------
$310,000,000 100.000000000%
------------ --------------
------------ --------------
No Bank shall be obligated to make any Advance under this Section 2.01 and
Section 2.02 if, immediately after giving effect thereto, the aggregate
amount of all indebtedness and obligations of Borrowers to such Bank under
Section 2.01, Section 2.02 and Section 2.03 exceeds the lesser of (a) such
Bank's Commitment or (b) an amount equal to such Bank's Percentage TIMES the
Revolving Credit Borrowing Base in effect at such time.
Within the limits of this Section 2.01, during the Revolving Credit
Period, Borrowers may borrow, prepay pursuant to Section 3.03 hereof and
reborrow under this Section 2.01; provided, however, the total number of
unpaid Eurodollar Borrowings shall not exceed five (5) at any time. Each
Borrowing pursuant to this Section 2.01 and Section 2.02 shall be funded
ratably by Banks in proportion to their respective Percentages. Each
advance made by a Bank under Section 2.01 and Section 2.02 is herein
called an "Advance"; all Advances made by a Bank hereunder are herein
collectively called a "Revolving Credit Loan"; the aggregate unpaid principal
balance of all Advances made by Banks hereunder are herein collectively
called the "Revolving Credit Loans"; and the combined Advances made by Banks
on any given day are herein collectively called a "Borrowing". The "Total
Commitment" shall be three hundred ten million dollars ($310,000,000).
(b) BORROWING BASE LIMITATION. The maximum aggregate amount
outstanding at any time under the Revolving Credit Loans shall not exceed the
Revolving Credit Borrowing Base then in effect.
(c) BORROWING BASE DEFICIENCY. If the aggregate unpaid principal
balance of the Revolving Credit Loans and all Swing Line Borrowings shall at
any time exceed the Revolving Credit Borrowing Base then in effect (the
"Borrowing Base Deficiency"), Borrowers shall pay to Agent within one (1)
Business Day of the date of the earlier of the most recent Borrowing Base
Certificate which discloses a Borrowing Base Deficiency or the date of
notification to Borrowers by Agent of the existence of a Borrowing Base
Deficiency an amount equal to such Borrowing Base Deficiency so that the
aggregate unpaid principal balance of the Revolving
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Credit Loans and Swing Line Borrowings (after giving effect to such payment)
is not in excess of the Revolving Credit Borrowing Base then in effect.
(d) LOAN ORIGINATION FEE. At the time of execution of this Agreement,
Borrowers shall pay to each Bank, including Agent, a loan origination fee in
an amount equal to the sum of (i) one twentieth percent (.05%) of each such
Bank's Revolving Commitment under the Prior Loan Agreement and (ii) one tenth
percent (.10%) of the positive difference between such Bank's Commitment
under this Loan Agreement and such Bank's Revolving Commitment under the
Prior Loan Agreement.
(e) UNUSED LINE FEE. In addition to the payments provided for in
Article III hereof, Borrowers shall pay to Agent, for the account of each
Bank, on the first day of each fiscal quarter of Company beginning January 1,
1998 during the period ending on the Termination Date a loan commitment fee
at the rate of one quarter of one percent (.25%) per annum (calculated on the
basis of a year consisting of 360 days) of the average daily amount of each
such Bank's Commitment which was unused during the immediately preceding
fiscal quarter of Company. Outstanding Borrowings under the Swing Line
Subfacility shall not be treated as outstanding in determining the amount of
each such Bank's Commitment which is unused at any time for purposes of
calculating the loan commitment fee. Borrowers and Banks acknowledge and
agree that the commitment fees payable hereunder are bona fide commitment
fees and are intended as reasonable compensation to Banks for committing to
make funds available to Borrowers as described herein and for no other
purpose.
2.02. MANNER OF BORROWING.
(a) REQUEST FOR BORROWING. Each request by Borrowers to Agent for a
Borrowing under Section 2.01 hereof (a "Request for Borrowing") shall be in
writing and specify the aggregate amount of such requested Borrowing, the
requested date of such Borrowing, and, when the Request for Borrowing
specifies a Eurodollar Borrowing, the Interest Period which shall be
applicable thereto; provided, however, that the aggregate number of unpaid
Eurodollar Borrowings shall not exceed five (5) at any time. Borrowers shall
furnish to Agent the Request for Borrowing by at least 11:00 a.m. (Fort Worth
time) three (3) Eurodollar Business Days prior to the requested Eurodollar
Borrowing date (which must be a Eurodollar Business Day) and by at least
11:00 a.m. (Fort Worth time) on the requested borrowing date (which must be a
Business Day) for a Floating Base Advance. Any Request for Borrowing shall:
(i) in the case of a Floating Base Borrowing, be in the form attached hereto
as EXHIBIT "C," and (ii) in the case of a Eurodollar Borrowing, be in the
form attached hereto as EXHIBIT "D." Each Floating Base Borrowing shall be in
an aggregate principal amount of five hundred thousand dollars ($500,000.00)
or any higher integral multiple of one hundred thousand dollars
($100,000.00). Each Eurodollar Borrowing shall be in an amount of at least
one million dollars ($1,000,000.00) or any higher integral multiple of
$1,000,000.00.
Prior to making a Request for Borrowing, Borrowers may (without
specifying whether the anticipated Borrowing shall be a Floating Base
Borrowing or Eurodollar Borrowing) request that Agent provide Borrowers with
the most recent Interbank Offered Rate available to Agent. Agent shall
endeavor to provide such quoted rates to Borrowers on the date of such
request.
Each Request for Borrowing shall be irrevocable and binding on Borrowers
and, in respect of the Borrowing specified in such Request for Borrowing,
Borrowers shall indemnify
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each Bank against any cost, loss or expense incurred by such Bank as a result
of any failure to fulfill, on or before the date specified for such
Borrowing, the conditions to such Advance set forth herein, including without
limitation, any cost, loss or expense incurred by reason of the liquidation
or reemployment of deposits or other funds acquired by any Bank to fund the
Advance to be made by such Bank as part of such Borrowing when such Advance,
as a result of such failure, is not made on such date.
After receiving a Request for Borrowing in the manner provided herein,
Agent shall promptly notify each Bank by telephone (confirmed immediately by
telecopy, telex or cable), telecopy, telex or cable of the amount of the
Borrowing and such Bank's pro rata share of such Borrowing, the date on which
the Borrowing is to be made, the interest option selected and, if applicable,
the Interest Period selected.
(b) FUNDING. Each Bank shall, before 2:00 P.M. (Fort Worth time) on
the date of such Borrowing specified in the notice received from Agent
pursuant to Section 2.02(a), deposit such Bank's ratable portion of such
Borrowing in immediately available funds to Agent's account. Upon
fulfillment of all applicable conditions set forth herein and after receipt
by Agent of such funds, Agent shall pay or deliver such proceeds to or upon
the order of Borrowers at the principal office of Agent in immediately
available funds. The failure of any Bank to make any Advance required to be
made by it hereunder shall not relieve any other Bank of its obligation to
make its Advance hereunder. If any Bank shall fail to provide its ratable
portion of such funds and if all conditions to such Borrowing shall have been
satisfied, the Agent will make available such funds as shall have been
received by it from the other Banks, in accordance with this Section 2.02(b).
Neither Agent nor any Bank shall be responsible for the performance by any
other Bank of its obligations hereunder. In the event of any failure by a
Bank to make an Advance required hereunder, the other Banks may (but shall
not be required to) purchase (on a pro rata basis, according to their
respective Percentages) such Bank's Revolving Credit Note. Upon the failure
of a Bank to make an Advance required to be made by it hereunder, the Agent
shall use good faith efforts to obtain one or more banks, acceptable to
Borrowers and Agent, to replace such Bank, but neither the Agent nor any
other Bank shall have any liability or obligation whatsoever as a result of
the failure to obtain a replacement for such Bank.
Unless the Agent shall have received notice from a Bank prior to the
date of any Borrowing that such Bank will not make available to the Agent
such Bank's ratable portion of such Borrowing, the Agent may assume that such
Bank has made such portion available to the Agent on the date of such
Borrowing in accordance with Section 2.02(b) and the Agent may, in reliance
upon such assumption, make available to or on behalf of Borrowers on such
date a corresponding amount. If and to the extent such Bank shall not have
so made such ratable portion available to the Agent, such Bank severally
agrees to repay to the Agent forthwith on demand such corresponding amount
together with interest thereon, for each day from the date such amount is
made available to or on behalf of Borrowers until the date such amount is
repaid to the Agent at the rate per annum equal to the Federal Funds Rate.
If such Bank shall repay to the Agent such corresponding amount, such amount
so repaid shall constitute such Bank's Advance as part of such Borrowing for
purposes of this Agreement.
(c) SELECTION OF INTEREST OPTION. Upon making a Request for Borrowing
under Section 2.02(a) hereof, Borrowers shall advise Agent as to whether the
Borrowing shall be (i) a Eurodollar Borrowing, in which case Borrowers shall
specify the applicable Interest Period therefor, or (ii) a Floating Base
Borrowing. At least three (3) Eurodollar Business Days prior
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to the termination of each Interest Period with respect to a Eurodollar
Borrowing, Borrowers shall give Agent written notice (the "Rollover Notice")
of the interest option which shall be applicable to such Borrowing upon the
expiration of such Interest Period. If Borrowers shall specify that such
Borrowing shall be a Eurodollar Borrowing, such Rollover Notice shall also
specify the length of the succeeding Interest Period selected by Borrowers
with respect to such Borrowing. Each Rollover Notice shall be irrevocable
and effective upon notification thereof to Agent. If the required Rollover
Notice shall not have been timely received by Agent prior to the expiration
of the then relevant Interest Period, then Borrowers shall be deemed to have
elected to have such Borrowing be a Floating Base Borrowing. With respect to
any Floating Base Borrowing, Borrowers shall have the right, on any
Eurodollar Business Day (a "Conversion Date") to convert such Floating Base
Borrowing to a Eurodollar Borrowing by giving Agent a Rollover Notice of such
selection at least three (3) Eurodollar Business Days prior to such
Conversion Date.
Notwithstanding anything to the contrary contained herein, Borrowers
shall have no right to request a Eurodollar Borrowing if (1) an Event of
Default has occurred and is continuing, (2) the interest rate applicable
thereto under Section 2.04 hereof would exceed the Maximum Rate in effect on
the first day of the Interest Period applicable to such Eurodollar Borrowing,
or (3) either of the circumstances described in Section 4.01 exist.
Each Rollover Notice shall be irrevocable and binding upon Borrowers,
and in respect of the Borrowing, conversion or extension specified in such
Rollover Notice, Borrowers shall indemnify and hold harmless each Bank
against any cost, loss or expense incurred by such Bank as a result of any
failure to convert or extend as specified in such Rollover Notice, including
without limitation, any loss, cost or expense incurred by reason of the
liquidation or redeployment of deposits or other funds required by any Bank
to fund, convert or extend the Advance specified in such Rollover Notice.
2.03 SWING LINE SUBFACILITY.
(a) For the convenience of the parties and as an integral part of the
transactions contemplated by the Loan Documents, ▇▇▇▇▇ Fargo Bank (Texas),
National Association ("▇▇▇▇▇ Fargo"), solely for its own account, may make
any requested Borrowing in the form of EXHIBIT "E" of $500,000 or a greater
integral multiple of $100,000, subject to those terms and conditions
applicable to Borrowings set forth in Section 6.02(c), (d), (e), and (f),
directly to Borrowers as a Swing Line Borrowing without requiring any other
Bank to fund its Pro Rata Part thereof unless and until Section 2.03(b) is
applicable; PROVIDED THAT: (i) each such Borrowing must occur on a Business
Day prior to, and not on or after, the Swing Line Maturity Date; (ii) the
aggregate Swing Line Debt outstanding on any date of determination shall not
exceed $20,000,000; (iii) on any date of determination, the total amount
outstanding under this Loan Agreement, after taking into account such
requested Swing Line Borrowing, shall never exceed the lesser of the Total
Commitment or the Revolving Credit Borrowing Base then in effect; (iv) at the
time of such Swing Line Borrowing, no Event of Default or event, which with
the giving of notice or the passage of time, or both, could constitute an
Event of Default, shall have occurred and be continuing; and (v) no
additional Swing Line Borrowing shall be made at any time after any Bank has
refused, notwithstanding the requirements of Section 2.03(b), to purchase a
participation in any Swing Line Borrowing as provided in Section 2.03(b), and
until such purchase shall occur or until the Swing Line Borrowing has been
repaid. Each Borrowing under the Swing Line Subfacility shall be available
and may be prepaid on same day by
-20-
telephonic notice (to be followed immediately by written notice) from
Borrowers to ▇▇▇▇▇ Fargo, SO LONG AS such notice is received by ▇▇▇▇▇ Fargo
prior to 12:00 noon (Fort Worth, Texas time). Each Swing Line Borrowing shall
be due and payable by Borrowers on the earlier of (a) five (5) Business Days
after the date of such Swing Line Borrowing, (b) the occurrence of an Event
of Default or (c) the Swing Line Maturity Date.
(b) If Borrowers fail to repay any Swing Line Borrowing within five (5)
Business Days after the date of such Swing Line Borrowing (and in any event
upon the earlier to occur of an Event of Default, the Termination Date, or
the date on which the Commitment is canceled in full), Agent shall timely
notify each Bank of such failure and of the date and amount not paid. No
later than the close of business on the date such notice is given (if such
notice was given prior to 12:00 noon (Fort Worth time) on any Business Day,
or, if made at any other time, on the next Business Day following the date of
such notice), each Bank shall be deemed to have irrevocably and
unconditionally purchased and received from ▇▇▇▇▇ Fargo an undivided interest
and participation in such Swing Line Borrowing to the extent of such Bank's
Pro Rata Part, and each Bank shall make available to ▇▇▇▇▇ Fargo in
immediately available funds such Bank's Pro Rata Part of such unpaid amount.
All such amounts payable by any Bank shall include interest thereon from the
date on which such payment is payable by such Bank to, but not including, the
date such amount is paid by such Bank to Agent, at the Federal Funds Rate.
If such Bank does not promptly pay such amount upon Agent's demand therefor,
and until such time as such Bank makes the required payment, ▇▇▇▇▇ Fargo
shall be deemed to continue to have outstanding a Swing Line Borrowing in the
amount of such unpaid obligation. Each payment by Borrowers of all or any
part of any Swing Line Borrowing shall be paid to Agent for the ratable
benefit of ▇▇▇▇▇ Fargo and those Banks who have funded their participations
in such Swing Line Debt under this Section 2.03(b); PROVIDED THAT, with
respect to any such participation, all interest accruing on the Swing Line
Debt to which such participation relates prior to the date of funding such
participation shall be payable solely to ▇▇▇▇▇ Fargo for its own account.
2.04. INTEREST RATE. The unpaid principal of each Floating Base
Advance except Borrowings under the Swing Line Facility shall bear interest
from the date of advance until paid at a rate per annum which shall from day
to day, be equal to the lesser of: (a) the Floating Base Rate or (b) the
Maximum Rate. The unpaid principal of each Eurodollar Advance except
Borrowings under the Swing Line Facility shall bear interest from the date of
Advance until paid at a rate per annum which shall be equal to the lesser of
(a) the sum of the Adjusted Interbank Rate for the applicable Interest
Period, plus the Applicable Margin in effect from time to time or (b) the
Maximum Rate. Borrowers shall notify Agent of any change in the Ratings and
the Applicable Margin within one (1) Business Day of any such change. The
unpaid principal of each Swing Line Borrowing shall bear interest at then
Adjusted Interbank Rate applicable to a one (1) month Interest Period as
determined by ▇▇▇▇▇ Fargo on the date of the Swing Line Borrowing, plus the
Applicable Margin; PROVIDED THAT at any time after any Bank is deemed to have
purchased pursuant to Section 2.03(b) a participation in any Swing Line
Borrowing, such Swing Line Borrowing shall bear interest at the Past Due
Rate. All past due principal of, and to the extent permitted by applicable
law, interest on the Notes shall bear interest at the Past Due Rate.
Notwithstanding the foregoing, the unpaid principal balance of the Notes
shall bear interest as provided in Section 3.04(c) hereof, upon the
occurrence of the circumstances described in such section.
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ARTICLE III
NOTES AND INTEREST RATE PAYMENTS
3.01. PROMISSORY NOTES. The Advances under Section 2.02(a) and Section
2.02(b) hereof by a Bank shall be evidenced by a promissory note (each a
"Note" and collectively, the "Notes") of Borrowers, which Note shall (i) be
dated the date hereof, (ii) be in the amount of such Bank's Commitment, (iii)
be payable to the order of such Bank at the office of Agent,
(iv) bear interest in accordance with Section 2.04 hereof, and (v) be in the
form of EXHIBIT "A" attached hereto with blanks appropriately completed in
conformity herewith. Notwithstanding the principal amount of any Bank's Note
as stated on the face thereof, the amount of principal actually owing on such
Note at any given time shall be in the aggregate of all Advances theretofore
made to Borrowers hereunder, less all payments of principal theretofore
actually received hereunder by Bank. Each Bank is authorized, but is not
required, to endorse on the schedule attached to its Note appropriate
notations evidencing the date and amount of each Advance as well as the
amount of each payment made by Borrowers hereunder.
3.02. PRINCIPAL PAYMENTS ON NOTES. Subject to Article X, the unpaid
principal amount of each Note (other than the Swing Line Note), and all
accrued but unpaid interest thereon, shall be due and payable on the
Termination Date and the unpaid principal balance of the Swing Line Note
shall be due and payable on the Swing Line Maturity Date.
3.03. PREPAYMENTS.
(a) OPTIONAL PREPAYMENTS. Borrowers may prepay the principal of any
Floating Base Advance upon one (1) Business Day's prior notice without
premium or penalty, and of any Eurodollar Advance upon three (3) Business
Days prior notice; provided, however, that (i) each prepayment of less than
the full outstanding principal balance of the Notes shall be in an amount
equal to one hundred thousand dollars ($100,000.00) or an integral multiple
thereof, and (ii) if Borrowers shall prepay the principal of any Eurodollar
Advance on any date other than the last day of the Interest Period applicable
thereto, Borrowers shall make the payments required by Section 4.05 hereof.
(b) GENERAL PREPAYMENT PROVISIONS. Any prepayment of a Note
hereunder shall be (i) made together with interest accrued (to the date of
such prepayment) on the principal amount prepaid, and (ii) applied first to
accrued interest and then to principal.
3.04. PAYMENT OF INTEREST ON THE NOTES.
(a) REVOLVING CREDIT NOTES. The interest on the unpaid principal
amount of each Floating Base Advance under each Note shall be payable monthly
as it accrues on the first Business Day of each month commencing November 1,
1997, and on the Termination Date. Interest on the unpaid principal amount of
each Eurodollar Advance under each Note shall be payable on the last day of
applicable Interest Period. Should any installment of interest on a Floating
Base Advance become due and payable on a day other than a Business Day, the
maturity thereof shall be extended to the next succeeding Business Day.
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(b) SWING LINE NOTE. The unpaid accrued interest on each advance
under the Swing Line Note shall be payable five (5) days from the date of
each such advance.
(c) RECAPTURE RATE. If, on any interest payment date, Agent does not
receive interest (for the account of any Bank) on such Bank's Note computed
(as if no Maximum Rate limitations were applicable) at the applicable
contract rate described herein, because the applicable contract rate exceeds
or has exceeded the Maximum Rate, then Borrowers shall, upon the written
demand of Agent or such Bank, pay to such Bank, in addition to interest
otherwise required hereunder, on each interest payment date thereafter, the
Excess Interest Amount (hereinafter defined) calculated as of such later
interest payment date; provided, however, that in no event shall Borrowers be
required to pay, for any appropriate computation period, interest at a rate
exceeding the Maximum Rate effective during such period. The term "Excess
Interest Amount" shall mean, on any date, with respect to the Note of any
Bank, the amount by which (a) the amount of all interest which would have
accrued prior to such date on the principal of such Note (had the applicable
contract rate(s) described herein at all times been in effect, without
limitation by the Maximum Rate) EXCEEDS (b) the aggregate amount of interest
actually paid to such Bank on such Note on or prior to such date.
3.05. CALCULATION OF INTEREST RATES. Interest on the unpaid principal
of each Eurodollar Advance shall be calculated on the basis of the actual
days elapsed in a year consisting of 360 days. Interest on the unpaid
principal of each Floating Base Advance shall be calculated on the basis of
the actual days elapsed in a year consisting of 365/366 days.
3.06. MANNER AND APPLICATION OF PAYMENTS. All payments of principal
of, and interest on, any Note shall be made by Borrowers to Agent before
11:00 a.m. (Fort Worth time), in immediately available Federal funds or such
other immediately available funds at Agent's principal banking office in Fort
Worth, Texas or to Agent's office in San Francisco, California wired as
follows: ABA No. ▇▇▇▇▇▇▇▇, Account No. 4518151378, Reference: AmeriCredit -
Syndicated Credit Agreement. Should the principal of, or any installment of
the principal or interest on, any Note, become due and payable on a day other
than a Business Day or a Eurodollar Business Day, as the case may be, the
maturity thereof shall be extended to the next succeeding Business Day or
Eurodollar Business Day, as the case may be. Each payment received by the
Agent hereunder for the account of a Bank shall be promptly distributed by
Agent to such Bank. All payments made on any Note shall be credited, to the
extent of the amount thereof, in the following manner: (i) first, against
the amount of interest accrued and unpaid on the Note as of the date of such
payment; (ii) second, against all principal (if any) due and owing on the
Note; (iii) third, as a prepayment of outstanding Floating Base Advances
under the Note; and (iv) fourth, as a prepayment of outstanding Eurodollar
Advances under the Note. Subject to the foregoing, payments and prepayments
of principal of the Notes shall be applied to such outstanding Floating Base
Advances and Eurodollar Advances under the Notes as Borrowers shall select;
provided, however, that Borrowers shall select Floating Base Advances and
Eurodollar Advances to be repaid in a manner designated to minimize the
Consequential Loss, if any, resulting from such payments; and provided
further that, if Borrowers shall fail to select the Floating Base Advances
and Eurodollar Advances to which such payments are to be applied, or if an
Event of Default has occurred and is continuing at the time of such payment,
then Agent shall apply the payment first to Floating Base Advances and then
to Eurodollar Advances.
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3.07. PRO RATA TREATMENT. Each payment received by Agent hereunder for
account of Banks or any of them on the Notes shall be distributed to each
Bank entitled to share in such payment, PRO RATA in proportion to the then
unpaid principal balance of the Note of each Bank. Unless Agent shall have
received notice from Borrowers prior to the date on which any payment is due
to Banks hereunder that Borrowers will not make such payment in full, Agent
may assume that Borrowers have made such payment in full to Agent on such
date and Agent may, in reliance upon such assumption, cause to be distributed
to each Bank on such due date an amount equal to the amount then due such
Bank. If and to the extent Borrowers shall not have so made such payment in
full to Agent, each Bank shall repay to Agent forthwith on demand such amount
distributed to such Bank together with interest thereon, for each day from
the date such amount is distributed to such Bank until the date such Bank
repays such amount to Agent, at the Federal Funds Rate.
3.08. LENDING OFFICE. Each Bank may (a) designate its principal office
or a foreign branch, subsidiary or affiliate of such Bank as its lending
office (and the office to whose accounts payments are to be credited) for any
Eurodollar Advance, (b) designate its principal office or a domestic branch,
subsidiary or affiliate as its lending office (and the office to whose
accounts payments are to be credited) for any Floating Base Advance and (c)
change its lending offices from time to time by notice to Agent and
Borrowers; provided, however, no Bank shall designate a foreign branch
without the consent of Borrowers if such designation would subject interest
payments hereunder to withholding for Taxes. In such event, such Bank shall
continue to hold the Note evidencing its loans for the benefit and account of
such foreign branch, subsidiary or affiliate. Each Bank shall be entitled to
fund all or any portion of its Revolving Credit Loan in any manner that it
deems appropriate, but for the purposes of this Agreement such Bank shall,
regardless of such Bank's actual means of funding, be deemed to have funded
its Loan in accordance with the interest option from time to time selected by
Borrowers for such Borrowing.
3.09. TAXES.
(a) Any and all payments by Borrowers hereunder or under the Notes
shall be made, in accordance with Section 3.06, free and clear of and without
deduction for any and all present or future Taxes, excluding, in the case of
each Bank and Agent, taxes imposed on its income, and franchise taxes imposed
on it, by the jurisdiction under the laws of which such Bank or Agent (as the
case may be) is organized or is or should be qualified to do business or any
political subdivision thereof and, in the case of each Bank Taxes imposed on
its income and franchise taxes imposed on it by the jurisdiction of such
Bank's lending office or any political subdivision thereof. If Borrowers
shall be required by law to deduct any Taxes (i.e., Taxes for which any
Borrower is responsible under the preceding sentence) from or in respect of
any sum payable hereunder or under any Note to any Bank or Agent, (i) the sum
payable shall be increased as may be necessary so that after making all
required deductions (including deductions applicable to additional sums
payable under this Section 3.09) such Bank or Agent receives an amount equal
to the sum it would have received had no such deductions been made, (ii)
Borrowers shall make such deductions and (iii) Borrowers shall pay the full
amount deducted to the relevant taxation authority or other authority in
accordance with applicable law.
(b) In addition, Borrowers agree to pay any present or future stamp
or documentary taxes or any other excise or property taxes, charges or
similar levies which arise from any
- 24 -
payment made hereunder or under the Loan Documents from the execution,
delivery, or registration of, or otherwise with respect to, this Agreement or
the other Loan Documents (hereinafter referred to as "Other Taxes").
(c) Borrowers will indemnify each Bank and Agent for the full amount
of Taxes or Other Taxes (including, without limitation, any Taxes or Other
Taxes imposed by any jurisdiction on amounts payable under this Section 3.09)
paid by such Bank or Agent (as the case may be) or any liability (including
penalties and interest) arising therefrom or with respect thereto, whether or
not such Taxes or Other Taxes were correctly or legally asserted. This
indemnification shall be made within thirty (30) days from the date such Bank
or Agent makes written demand therefor.
(d) Within thirty (30) days after the date of any payment of Taxes,
Borrowers will furnish to Agent, at its address referred to in Section 13.02,
the original or a certified copy of a receipt evidencing payment thereof.
(e) Without prejudice to the survival of any other agreement of
Company hereunder, the agreements and obligations of Borrowers contained in
this Section 3.09 shall survive the payment in full of the Obligation and the
termination of the Commitments.
(f) Each Bank agrees to use good faith efforts to carry out its
obligations under this Loan Agreement in such a way as to reduce the amount
of Taxes attributable to the Revolving Credit Loans, including the use of a
different lending office, as long as in the good faith opinion of such Bank
such actions would not have a material adverse effect upon it.
3.10. SHARING OF PAYMENTS. If any Bank shall obtain any payment
(whether voluntary, involuntary, through the exercise of any right of
set-off, or otherwise) on account of the Advances made by it in excess of its
ratable share of payments on account of the Advances made by all Banks, such
Bank shall forthwith purchase from the other Banks such participations in the
Advances made by them as shall be necessary to cause such purchasing Bank to
share the excess payment ratably with each of them, PROVIDED, HOWEVER, that
if all or any portion of such excess payment is thereafter recovered from
such purchasing Bank, such purchase from each Bank shall be rescinded and
such other Banks shall repay to the purchasing Bank the purchase price to the
extent of such recovery together with an amount equal to such other Bank's
ratable share (according to the proportion of (i) the amount of such Bank's
required repayment, to (ii) the total amount so recovered from the purchasing
Bank) of any interest or other amount paid or payable by the purchasing Bank
in respect of the total amount recovered. Borrowers agree that any Bank so
purchasing a participation from another Bank pursuant to this Section 3.10
may, to the fullest extent permitted by law exercise all of its rights of
payment (including the right of set-off) with respect to such participation
as fully as if such Bank were the direct creditor of Borrowers in the amount
of such participation.
3.11. JOINT AND SEVERAL LIABILITY. The Borrowers shall be liable for
all amounts due to the Agent and to the Banks under this Loan Agreement,
regardless of which the Borrowers actually receives the Revolving Credit
Loans or other extensions of credit hereunder or the amount of such Revolving
Credit Loans received or the manner in which the Agent or the Banks account
for such Revolving Credit Loans or other extensions of credit on their books
and records. The Obligations with respect to Revolving Credit Loans and with
respect to each Swing Line Borrowing made to a Borrower, and the Obligations
of a Borrower arising as a result of
- 25 -
the joint and several liability of the Borrower hereunder, with respect to
Revolving Credit Loans or a Swing Line Borrowing made to the other Borrowers,
shall be separate and distinct obligations, but all such Obligations shall be
primary obligations of each of the Borrowers.
The Obligations arising as a result of the joint and several liability
of the Borrowers hereunder with respect to Revolving Credit Loans or other
extensions of credit made to the other Borrowers shall, to the fullest extent
permitted by law, be unconditional irrespective of (i) the validity or
enforceability, avoidance or subordination of the Obligations of the other
Borrowers or of any promissory note or other document evidencing all or any
part of the Obligations of the other Borrowers, (ii) the absence of any
attempt to collect the Obligations from the other Borrowers, any other
guarantor, or any other security therefor, or the absence of any other action
to enforce the same, (iii) the waiver, consent, extension, forbearance or
granting of any indulgence by the Agent and the Banks with respect to any
provision of any instrument evidencing the Obligations of the other
Borrowers, or any part thereof, or any other agreement now or hereafter
executed by the other Borrowers and delivered to the Agent and the Banks,
(iv) the failure by the Agent and the Banks to take any steps to perfect and
maintain their security interest in, or to preserve their rights to, any
security or collateral for the Obligations of the other Borrowers, (v) the
Agent's or the Banks' election, in any proceeding instituted under the
Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy
Code, (vi) any borrowing or grant of a security interest by the other
Borrowers, as debtor-in-possession under Section 364 of the Bankruptcy Code,
(vii) the disallowance of all or any portion of the Agent's or the Banks'
claim(s) for the repayment of the Obligations of the other Borrowers under
Section 502 of the Bankruptcy Code, or (viii) any other circumstances which
might constitute a legal or equitable discharge or defense of a Guarantor or
of the other Borrowers. With respect to the Borrowers' Obligations arising as
a result of the joint and several liability of the Borrowers with respect to
Revolving Credit Loans or other extensions of credit made to the other
Borrowers, each Borrower waives, until the Obligations shall have been paid
in full and the Loan Agreement shall have been terminated, any right to
enforce any right of subrogation or any remedy which the Agent and the Banks
now have or may have hereafter have against the other Borrowers, any endorser
or any guarantor of all or any part of the Obligations, and any benefit of,
and any right to participate in, any security or collateral given to the
Agent or to the Banks to secure payment of the Obligations or any other
liability of the other Borrowers to the Agent and the Banks.
Upon any Event of Default, the Agent and the Banks may proceed directly
and at once, without notice, against any of the Borrowers to collect and
recover the full amount, or any portion of the Obligations, without first
proceeding against the other Borrowers or any other Person, or against any
security or collateral for the Obligations. The Borrowers consent and agree
that the Agent and the Banks shall be under no obligation to ▇▇▇▇▇▇▇▇ any
assets in favor of the Borrowers or against or in payment of any or all of
the Obligations.
ARTICLE IV
SPECIAL PROVISIONS FOR EURODOLLAR LOANS
4.01. INADEQUACY OF EURODOLLAR LOAN PRICING. If with respect to an
Interest Period for any Eurodollar Borrowing including a Swing Line Borrowing:
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(i) Agent determines that, by reason of circumstances affecting the
Interbank Eurodollar market generally, deposits in Dollars (in
the applicable amounts) are not being offered to Banks in the
Interbank Eurodollar market for such Interest Period, or
(ii) Majority Banks advise Agent that the Interbank Offered Rate as
determined by Agent will not adequately and fairly reflect the
cost to such Banks of maintaining or funding the Eurodollar
Borrowing for such Interest Period,
then Agent shall forthwith give notice thereof to Borrowers, whereupon, until
Agent notifies Borrowers that the circumstances giving rise to such
suspension no longer exist, (a) the obligation of Banks to make Eurodollar
Advances shall be suspended and (b) Borrowers shall either (i) repay in full
the then outstanding principal amount of the Eurodollar Advances, together
with accrued interest thereon on the last day of the then current Interest
Period applicable to such Eurodollar Advances, or (ii) convert such
Eurodollar Advances to Floating Base Advances in accordance with Section
2.02(c) of this Loan Agreement on the last day of the then current Interest
Period applicable to each such Eurodollar Advance.
4.02. ILLEGALITY. If, after the date of this Loan Agreement, the
adoption of any applicable law, rule or regulation, or any change therein, or
any change in the interpretation or administration thereof by any
Governmental Authority, central bank or comparable agency charged with the
interpretation or administration thereof, or compliance by any Bank with any
request or directive (whether or not having the force of law) of any such
authority, central bank or comparable agency shall make it unlawful or
impossible for any Bank to make, maintain or fund its Eurodollar Advances,
and such Bank shall so notify Agent, Agent shall forthwith give notice
thereof to Banks and Borrowers. Before giving any notice pursuant to this
Subsection, such Bank shall designate a different Eurodollar lending office
if such designation will avoid the need for giving such notice and will not
be materially disadvantageous to such Bank (as determined in good faith by
such Bank). Upon receipt of such notice, the obligation of such Bank to make
Eurodollar Advances shall be suspended until receipt of notice from such Bank
that such circumstances giving rise to such suspension no longer exist and
Borrowers shall either (i) repay in full the then outstanding principal
amount of the Eurodollar Advance of such Bank, together with accrued interest
thereon, or (ii) convert such Eurodollar Advance to a Floating Base Advance,
in either case on (a) the last day of the then current Interest Period
applicable to such Eurodollar Advance if such Bank may lawfully continue to
maintain and fund such Eurodollar Advance to such day or (b) immediately if
such Bank may not lawfully continue to fund and maintain such Eurodollar
Advance to such day.
4.03. INCREASED COSTS FOR EURODOLLAR LOANS. If any Governmental
Authority, central bank or other comparable authority, shall at any time
after the date of this Agreement impose, modify or deem applicable any
reserve (including, without limitation, any imposed by the Board of Governors
of the Federal Reserve System but excluding any reserve requirement included
in the Eurodollar Reserve Requirement of such Bank), special deposit or
similar requirement against assets of, deposits with or for the account of,
or credit extended by, any Bank, or shall impose on any Bank (or its
Eurodollar lending office) or the Interbank Eurodollar market any other
condition affecting its Eurodollar Advances, any Note, or its obligation to
make Eurodollar Advances; and the result of any of the foregoing is to
increase the cost to such Bank of making or maintaining its Eurodollar
Advances, or to reduce the amount of any sum received or receivable by such
Bank under this Agreement or the Note by an amount reasonably deemed
- 27 -
by such Bank to be material; then, within five (5) days after demand by such
Bank (with a copy to Agent), Borrowers shall pay to Agent, for the account of
such Bank, such additional amount or amounts as will compensate such Bank for
such increased cost or reduction. Each Bank will promptly notify Borrowers
and Agent of any event of which it has knowledge, occurring after the date
hereof, which will entitle such Bank to compensation pursuant to this
Section. A certificate of any Bank claiming compensation under this Section
and setting forth the additional amount or amounts to be paid to it hereunder
shall be conclusive in the absence of manifest error. If any Bank demands
compensation under this Section, then Borrowers may at any time, upon at
least five (5) Business Days' prior notice to such Bank through Agent, either
(i) repay in full the then outstanding Eurodollar Advances of such Bank,
together with accrued interest thereon to the date of prepayment or (ii)
convert such Eurodollar Advances to Floating Base Advances in accordance with
the provisions of this Loan Agreement; provided, however, that Borrowers
shall be liable for any Consequential Loss arising pursuant to such actions.
Each Bank agrees to use good faith efforts to carry out its obligations under
this Loan Agreement in such a way as to reduce the amount of Taxes
attributable to the Revolving Credit Loans, including the use of a different
lending office, as long as in the good faith opinion of such Bank such
actions would not have a material adverse effect upon it.
4.04. EFFECT ON INTEREST OPTIONS. If notice has been given pursuant to
Section 4.02 or Section 4.03 requiring the Eurodollar Advances of any Bank to
be repaid or converted, then unless and until such Bank notifies Borrowers
that the circumstances giving rise to such repayment no longer apply, all
Advances shall be Floating Base Advances. If such Bank notifies Borrowers
that the circumstances giving rise to such repayment no longer apply,
Borrowers may thereafter select Advances to be Eurodollar Advances in
accordance with Section 2.02(c) of this Loan Agreement.
4.05. PAYMENTS NOT AT END OF INTEREST PERIOD. If Borrowers make any
payment of principal with respect to any Eurodollar Borrowing on any day
other than the last day of an Interest Period applicable to such Eurodollar
Borrowing (including payments made pursuant to Sections 4.02 or 4.03), then
Borrowers shall reimburse each Bank on demand the Consequential Loss incurred
by it as a result of the timing of such payment. A certificate of each Bank
setting forth the basis for the determination of the amount of Consequential
Loss shall be delivered to Borrowers through Agent and shall, in the absence
of manifest error, be conclusive and binding. Any conversion of a Eurodollar
Borrowing to a Floating Base Borrowing on any day other than the last day of
the Interest Period for such Eurodollar Borrowing shall be deemed a payment
for purposes of this Section.
ARTICLE V
SECURITY
5.01 LIENS AND SECURITY INTERESTS. The Obligations and the Notes
shall be secured by a first priority security interest in all Finance
Contracts evidencing Indirect Loans (except Finance Contracts subject to a
Securitization or Additional Warehouse Facility) and proceeds of sale of
collateral securing Finance Contracts (except Finance Contracts subject to a
Securitization or Additional Warehouse Facility) and all promissory notes
payable to any of Borrowers.
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5.02 GUARANTY DOCUMENTS. To secure the Obligations and the Notes,
each of the Guarantors shall execute and deliver to Agent the Guaranty
Agreements.
ARTICLE VI
CONDITIONS PRECEDENT
6.01. INITIAL ADVANCES. The obligation of each Bank to make the
Revolving Credit Loan herein provided for and the initial Advances thereunder
is subject to the condition precedent that, on or before the date of such
Advance, Agent shall have received for each Bank the following, each dated
the date of such Advance, in form and substance satisfactory to Agent and
such Bank:
(a) REVOLVING CREDIT NOTES. A duly executed promissory note, drawn
to the order of each Bank, in the form of EXHIBIT A attached hereto with
appropriate insertions.
(b) SWING LINE NOTE. The duly executed Swing Line Note drawn to the
order of ▇▇▇▇▇ Fargo Bank (Texas), National Association in form satisfactory
to ▇▇▇▇▇ Fargo.
(c) SECURITY AGREEMENT. Security Agreement executed by Borrowers
covering all now existing and hereafter arising Finance Contracts evidencing
Indirect Loans except Finance Contracts subject to a Securitization or an
Additional Warehouse Facility.
(d) FINANCING STATEMENTS. Financing statements executed by each of
Borrowers covering all now existing and hereafter arising Finance Contracts
evidencing Indirect Loans except Finance Contracts subject to a
Securitization or an Additional Warehouse Facility.
(e) GUARANTY AGREEMENT. The Guaranty Agreement in the form of
EXHIBIT B executed by AmeriCredit Premium Finance, Inc. and ACF Investment
Corp.
(f) AGENT'S FEE AGREEMENT. Agent's fee agreement between Borrowers
and Agent and the agent's fee payable to Agent.
(g) BORROWING BASE. A borrowing base certificate satisfying the
requirements of Section 8.01.
(h) ARTICLES OF INCORPORATION OF BORROWERS. A copy of the Articles
of Incorporation of each of Borrowers and all amendments thereto.
(i) BYLAWS OF BORROWERS. A certified copy of the bylaws of each of
Borrowers.
(j) RESOLUTIONS OF BORROWERS. Resolutions of each of Borrowers
authorizing the execution of this Loan Agreement and each of the other Loan
Documents duly adopted by the Board of Directors of each of Borrowers and
accompanied by a certificate of the Secretary of Company stating that such
resolutions are true and correct, have not been altered or repealed and are
in full force and effect.
(k) INCUMBENCY CERTIFICATE OF BORROWERS. An incumbency certificate
with respect to each of Borrowers executed by the appropriate officers of
such Borrower.
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(l) CERTIFICATES OF EXISTENCE AND ACCOUNT STATUS FOR BORROWERS. A
current certificate of existence and good standing from the state of
incorporation of each of Borrowers and a current certificate of account
status from the Comptroller of Public Accounts of the State of Texas.
(m) AUTHORITY TO TRANSACT BUSINESS. Certificate evidencing the
authority of each of Borrowers to conduct or transact business in the State
of Texas and in all other states in which any of them conducts or transacts
business.
(n) ARTICLES OF INCORPORATION OF THE GUARANTORS. A copy of the
Articles of Incorporation of each of the Guarantors and all amendments
thereto.
(o) BYLAWS OF EACH GUARANTOR. A certified copy of the bylaws of
each of the Guarantors.
(p) RESOLUTIONS OF EACH GUARANTOR. Resolutions of each one of the
Guarantors approving the execution of the Guaranty Agreement duly adopted by
the Board of Directors of each of such Guarantors and accompanied by a
certificate of the Secretary of each of such Guarantors stating that such
resolutions are true and correct, have not been altered or repealed and are
in full force and effect.
(q) INCUMBENCY CERTIFICATES OF GUARANTORS. An incumbency
certificate with respect to each Guarantor executed by the appropriate
officers of each such Guarantor.
(r) CERTIFICATES OF EXISTENCE AND ACCOUNT STATUS FOR EACH GUARANTOR.
A current certificate of existence from the state of incorporation of each
Guarantor and a certificate of account status from the Comptroller of Public
Accounts of the State of Texas for each Guarantor.
(s) AUTHORITY TO TRANSACT BUSINESS. Certificate evidencing the
authority of each Guarantor to conduct or transact business in each state in
which each such Guarantor conducts or transacts business.
(t) OPINION OF COUNSEL. An executed opinion of counsel to Borrowers
and each of the Guarantors.
(u) LOAN ORIGINATION FEES. The loan origination fees described in
Section 2.01(d).
(v) FINANCIAL STATEMENT. Audited financial statement of Company for
its fiscal year ended June 30, 1997, together with an unqualified opinion
from a recognized accounting firm of national standing.
(w) FIELD EXAMINATION. Field examination of collateral conducted by
Agent which is satisfactory to Agent and Banks.
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6.02. ALL ADVANCES. The obligations of each Bank to make any Advance
under this Loan Agreement (including the initial Advance) shall be subject to
the following conditions precedent:
(a) NO DEFAULTS. As of the date of the making of such Advance,
there exists no Event of Default or event which with notice or lapse of time
or both could constitute an Event of Default.
(b) COMPLIANCE WITH LOAN AGREEMENT. Borrowers shall have performed
and complied in all material respects with all agreements and conditions
contained herein and in the Loan Documents which are required to be performed
or complied with by Borrowers before or at the date of such Advance or
conversion.
(c) REQUEST FOR BORROWING. In the case of any Borrowing, Agent shall
have received from Borrowers a Request for Borrowing in the form of EXHIBIT
"C", EXHIBIT "D" or EXHIBIT "E" attached hereto, dated as of the date of such
Advance and signed by an authorized officer of the Borrowers, all of the
statements of which shall be true and correct, certifying that, as of the
date thereof, (i) all of the representations and warranties of Borrowers
contained in this Loan Agreement and each of the Loan Documents executed by
Borrowers are true and correct, (ii) no event has occurred and is continuing,
or would result from the Advance, which constitutes an Event of Default or
which, with the lapse of time or giving of notice or both, would constitute
an Event of Default, and (iii) such other facts as Agent may reasonably
request.
(d) NO MATERIAL ADVERSE CHANGE. As of the date of making such
Advance, no change has occurred in the business or financial condition of the
Company and its Subsidiaries on a Consolidated basis as reflected on the
financial statement of Company for its fiscal year ended June 30, 1997 which
has caused or could cause a Material Adverse Effect.
(e) REPRESENTATIONS AND WARRANTIES. The representations and
warranties contained in Article VII (other than the representations and
warranties contained in Section 7.07) hereof and in each of the Loan
Documents shall be true and correct on the date of making of such Advance,
with the same force and effect as though made on and as of that date.
(f) BANKRUPTCY PROCEEDINGS. No proceeding or case under the United
States Bankruptcy Code shall have been commenced by or against any of
Borrowers or any Guarantor.
(g) FINANCING STATEMENTS. If requested and prepared by Agent,
Borrowers shall have executed and delivered to Agent financing
statements covering all Finance Contracts evidencing Indirect Loans
except Finance Contracts subject to (i) a Securitization or (ii) an
Additional Warehouse Facility.
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ARTICLE VII
REPRESENTATIONS AND WARRANTIES
To induce Banks to make the Revolving Credit Loans and the Swing Line
Loan, Borrowers represent and warrant to Banks that:
7.01. ORGANIZATION AND GOOD STANDING OF BORROWERS. Each of Borrowers
is a corporation duly organized and existing in good standing under the laws
of the state of its incorporation, is duly qualified as a foreign corporation
and in good standing in all states in which the failure to so qualify would
have a Material Adverse Effect and has the corporate power and authority to
own its properties and assets and to transact the business in which it is
engaged and is or will be qualified in those states wherein it will transact
business in the future and where the failure to so qualify would have a
Material Adverse Effect.
7.02. ORGANIZATION AND GOOD STANDING OF THE GUARANTORS. Each of the
Guarantors is a corporation duly organized and existing in good standing
under the laws of the state of its incorporation, is duly qualified as a
foreign corporation and in good standing in all states in which the failure
to so qualify would have a Material Adverse Effect and has the corporate
power and authority to own its properties and assets and to transact the
business in which it is engaged and is or will be qualified in those states
wherein it will transact business in the future and where the failure to so
qualify would have a Material Adverse Effect.
7.03. AUTHORIZATION AND POWER. Each of Borrowers has the corporate
power and requisite authority to execute, deliver and perform this Loan
Agreement and the other Loan Documents to be executed by such Borrower; each
of Borrowers is duly authorized to, and has taken all corporate action
necessary to authorize such Borrower to, execute, deliver and perform this
Loan Agreement, the Notes and such other Loan Documents and is and will
continue to be duly authorized to perform this Agreement, the Notes and such
other Loan Documents. Each of the Guarantors has the corporate power and
requisite authority to execute, deliver and perform the Guaranty Agreement.
7.04. NO CONFLICTS OR CONSENTS. Neither the execution and delivery of
this Loan Agreement, the Notes, the Guaranty Agreement or the other Loan
Documents, nor the consummation of any of the transactions herein or therein
contemplated, nor compliance with the terms and provisions hereof or with the
terms and provisions thereof, will contravene or materially conflict with any
provision of law, statute or regulation to which any of Borrowers or any of
the Guarantors is subject or any judgment, license, order or permit
applicable to any of Borrowers or any of the Guarantors, or any indenture,
loan agreement, mortgage, deed of trust, or other agreement or instrument to
which any of Borrowers or any of the Guarantors is a party or by which any of
Borrowers or any of the Guarantors may be bound, or to which any of Borrowers
or any of the Guarantors may be subject, or violate any provision of the
Charter or Bylaws of any of Borrowers or any of the Guarantors. No consent,
approval, authorization or order of any court or governmental authority or
third party is required in connection with the execution and delivery by any
of Borrowers or any of the Guarantors of the Loan Documents or to consummate
the transactions contemplated hereby or thereby.
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7.05. ENFORCEABLE OBLIGATIONS. This Loan Agreement, the Notes, the
Security Agreement, the Guaranty Agreement and the other Loan Documents are
the legal and binding obligations of the Borrowers and/or Guarantors parties
thereto, enforceable against such parties in accordance with their respective
terms, except as limited by bankruptcy, insolvency or other laws of general
application relating to the enforcement of creditors' rights.
7.06. NO LIENS. Except for Permitted Liens, all of the properties and
assets of Borrowers and their Subsidiaries are free and clear of all
mortgages, liens, encumbrances and other adverse claims of any nature, and
such corporation has and will have good and marketable title to such
properties and assets.
7.07. FINANCIAL CONDITION. Company has delivered to Agent copies of
the Consolidated balance sheet of Company and its Subsidiaries as of June 30,
1997, and the related consolidated statements of income, shareholders' equity
and cash flows for the period ended such date; such financial statements are
true and correct in all material respects, fairly present the financial
condition of Company and its Subsidiaries as of such date and have been
prepared in accordance with Generally Accepted Accounting Principles applied
on a basis consistent with that of prior periods; as of the date hereof,
there are no obligations, liabilities or indebtedness (including contingent
and indirect liabilities and obligations or unusual forward or long-term
commitments) of Company and its Subsidiaries which are (separately or in the
aggregate) material and are not reflected in such financial statements or
disclosed in writing to Agent; no changes having a Material Adverse Effect
have occurred in the financial condition or business of any Borrower since
June 30, 1997.
7.08. FULL DISCLOSURE. There is no material fact that Borrowers have
not disclosed to Agent and Banks which could have a Material Adverse Effect.
Neither the financial statements referred to in Section 7.07 hereof, nor any
certificate or statement delivered herewith or heretofore by any of Borrowers
to Banks in connection with negotiation of this Loan Agreement, contains any
untrue statement of a material fact or omits to state any material fact
necessary to keep the statements contained herein or therein from being
misleading in any material respect.
7.09. NO DEFAULT. No event has occurred and is continuing which
constitutes an Event of Default or which, with the lapse of time or giving of
notice or both, would constitute an Event of Default.
7.10. NO LITIGATION. Except as described in EXHIBIT F attached hereto,
there are no actions, suits or legal, equitable, arbitration or
administrative proceedings pending, or to the knowledge of Borrowers
threatened, against any of Borrowers or any of the Guarantors that could
reasonably be expected to, if adversely determined, have a Material Adverse
Effect.
7.11. REGULATORY DEFECTS. As of the date hereof, Borrowers have
advised Banks, in writing, of all Regulatory Defects of which any of
Borrowers has been advised or has knowledge.
7.12. USE OF PROCEEDS; MARGIN STOCK. The proceeds of the Revolving
Credit Loans will be used by the Borrowers and the Guarantors solely for
acquiring Finance Contracts and general corporate purposes of AmeriCredit
Corp., AmeriCredit Financial Services, Inc. and AmeriCredit Operating Co.,
Inc. None of such proceeds will be used for the purpose of purchasing or
carrying any "margin stock" as defined in Regulation U or G of the Board of
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Governors of the Federal Reserve System (12 C.F.R. Part 221 and 207), or for
the purpose of reducing or retiring any indebtedness which was originally
incurred to purchase or carry a margin stock or for any other purpose which
might constitute this transaction a "purpose credit" within the meaning of
such Regulation U or G. No Borrower is engaged in the business of extending
credit for the purpose of purchasing or carrying margin stocks. No Borrower
nor any Person acting on behalf of Borrowers has taken or will take any
action which might cause the Notes or any of the other Loan Documents,
including this Loan Agreement, to violate Regulations U or G or any other
regulations of the Board of Governors of the Federal Reserve System or to
violate Section 7 of the Securities Exchange Act of 1934 or any rule or
regulation thereunder, in each case as now in effect or as the same may
hereinafter be in effect. None of Borrowers own any "margin stock" except
for that described in the financial statements referred to in Section 7.07
hereof and, as of the date hereof, the aggregate value of all "margin stock"
owned by Borrowers and their Subsidiaries does not exceed 25% of the
aggregate value of all of the assets of Company and its Subsidiaries.
7.13. NO FINANCING OF CORPORATE TAKEOVERS. Except as permitted by
Section 9.09, no proceeds of the Revolving Credit Loans will be used to
acquire any security in any transaction which is subject to Section 13 or 14
of the Securities Exchange Act of 1934, including particularly (but without
limitation) Sections 13(d) and 14(d) thereof.
7.14. TAXES. Except as previously disclosed to Bank, all tax returns
required to be filed by each of Borrowers and their Subsidiaries in any
jurisdiction have been filed or will be filed prior to the date on which the
tax payable with respect to such return will become delinquent and all taxes
(including mortgage recording taxes), assessments, fees and other
governmental charges upon any of Borrowers or any of their Subsidiaries or
upon any of their respective properties, income or franchises have been paid
prior to the time that such taxes could give rise to a lien thereon. To the
best of each Borrower's knowledge, there is no proposed tax assessment
against any of Borrowers except as disclosed to Banks.
7.15. PRINCIPAL OFFICE, ETC. The principal office, chief executive
office and principal place of business of each of Borrowers is at ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, and Borrowers maintain their
principal records and books at 4100 International Plaza, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇,
▇▇▇▇▇ ▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇.
7.16. ERISA. (a) No Reportable Event has occurred and is continuing
with respect to any Plan; (b) PBGC has not instituted proceedings to
terminate any Plan; (c) neither the Borrowers, any member of the Controlled
Group, nor any duly appointed administrator of a Plan (i) has incurred any
liability to PBGC with respect to any Plan other than for premiums not yet
due or payable or (ii) has instituted or intends to institute proceedings to
terminate any Plan under Section 4041 or 4041A of ERISA or withdraw from any
Multi-Employer Pension Plan (as that term is defined in Section 3(37) of
ERISA); and (d) each Plan of Company or its Subsidiaries has been maintained
and funded in all material respects in accordance with its terms and with all
provisions of ERISA applicable thereto.
7.17. COMPLIANCE WITH LAW. Except as described on EXHIBIT G, Company
and each of its Subsidiaries are in compliance in all material respects with
all laws, rules, regulations, ordinances, orders and decrees which are
applicable to Company, any of its Subsidiaries or any of their respective
properties or business. Neither Company nor any Subsidiary has been notified
by any Governmental Authority that Company or any Subsidiary has failed to
comply
- 34 -
with any such laws, rules, regulations, orders or decrees nor has Company or
any Subsidiary been notified of any Environmental Claim except as described
in EXHIBIT H.
7.18. GOVERNMENT REGULATION. No Borrower nor any of the Guarantors are
subject to regulation under the Public Utility Holding Company Act of 1935,
the Federal Power Act, the Investment Company Act of 1940, the Interstate
Commerce Act (as any of the preceding acts have been amended), or any other
law (other than Regulation X) which regulates the incurring by Company or any
of its Subsidiaries of indebtedness, including but not limited to laws
relating to common contract carriers or the sale of electricity, gas, steam,
water, or other public utility services.
7.19. INSIDER. Company is not, and no Person having "control" (as that
term is defined in 12 U.S.C. Section 375(b)(5) or in regulations promulgated
pursuant thereto) of Company is, an "executive officer", "director", or
"person who directly or indirectly or in concert with one or more persons
owns, controls, or has the power to vote more than 10% of any class of voting
securities" (as those terms are defined in 12 U.S.C. Section 375(b) or in
regulations promulgated pursuant thereto) of any Bank, of a bank holding
company of which any Bank is a subsidiary, or of any subsidiary of a bank
holding company of which Bank is a subsidiary, or of any bank at which Bank
maintains a correspondent account, or of any bank which maintains a
correspondent account with any Bank.
7.20. SUBSIDIARIES. Company directly owns all of the capital stock of
AmeriCredit Financial Services, Inc., AmeriCredit Operating Co., Inc.,
AmeriCredit Premium Finance, Inc. and ACF Investment Corp., in each case free
and clear from all liens, security interests, charges and encumbrances.
7.21. SOLVENCY. Excluding intercompany indebtedness, Company and each
of its Subsidiaries now have capital sufficient to carry on their businesses
and transactions and all business and transactions in which they are about to
engage, and for which they have projected, and are now solvent and able to
pay their debts as they mature and each of Company and its Subsidiaries now
owns property having a value, both at fair valuation and at present fair
saleable value greater than the amount required to pay its respective debts.
Excluding intercompany indebtedness and without giving effect to the Guaranty
Agreement, no Guarantor is "insolvent" on the date hereof (that is, the sum
of such Guarantor's absolute and contingent liabilities does not exceed the
fair market value of such Guarantor's assets). Each Guarantor has received
or will receive good and fair consideration for its liability and obligations
incurred in connection with the Guaranty Agreement, and the incurrence of its
liability under the Guaranty Agreement in return for such consideration may
reasonably be expected to benefit each Guarantor, directly or indirectly.
7.22. ENVIRONMENTAL MATTERS. Except as described in EXHIBIT "H"
attached hereto, none of the properties of Company or its Subsidiaries which
are presently owned has been used at any time during their ownership to
generate, manufacture, refine, transport, treat, store, handle, dispose,
transfer, produce, process, or in any manner deal with Hazardous Materials.
Except as described in EXHIBIT "H" attached hereto, there are no past,
pending or, to the best of Company's knowledge, threatened or potential
Environmental Claims against Company or any of its Subsidiaries or with
respect to any properties presently owned or controlled by Company or any of
its Subsidiaries. Except as described in EXHIBIT "H" attached hereto, there
are no underground storage tanks located on any of the properties presently
owned or
- 35 -
controlled by Company or any of its Subsidiaries and, to Company's best
knowledge, there never have been any underground storage tanks located on any
of the properties presently owned or controlled by Company or any of its
Subsidiaries, and the Company has received no actual (as contrasted with
constructive) notification of any Environmental Claims relating to any
property contiguous to any property owned or controlled by Company or any of
its Subsidiaries.
7.23. ENDORSEMENT OF INDIRECT LOANS. Borrowers have endorsed all
Finance Contracts evidencing Indirect Loans in the manner specified in the
Security Agreement except Finance Contracts that are subject to a
Securitization.
7.24. REPRESENTATIONS AND WARRANTIES. Each Request for Borrowing shall
constitute, without the necessity of specifically containing a written
statement, a representation and warranty by Borrowers that no Event of Default,
or any event which with the giving of notice or lapse of time or both would
constitute, mature into or become an Event of Default, shall have occurred and
be continuing and that all representations and warranties contained in this
ARTICLE VII (other than in Section 7.07) or in any other Loan Document are true
and correct at and as of the date the Advance is to be made.
7.25. SURVIVAL OF REPRESENTATIONS, ETC. All representations and
warranties made herein are true and correct when made by Borrowers and shall
survive delivery of the Notes and the Guaranty Agreement and the making of the
Revolving Credit Loan and any investigation at any time made by or on behalf of
Agent or any Bank shall not diminish Agent or such Bank's right to rely thereon.
ARTICLE VIII
AFFIRMATIVE COVENANTS
So long as Banks have any commitment to make Advances hereunder and until
payment in full of the Notes and the Obligation, Borrowers agree and covenant
that Borrowers will (unless Majority Banks shall otherwise consent in writing):
8.01. BORROWING BASE CERTIFICATE. Within two (2) weeks after the
fifteenth and last days of each month and as provided on the Intercreditor
Agreement, Borrowers shall furnish to Agent a certificate in the form of EXHIBIT
"I" executed by the chief financial officer, treasurer or one of the vice
presidents of each of Borrowers reflecting in detail a computation of the
Revolving Credit Borrowing Base as of the fifteenth and last days of each month.
8.02. COMPLIANCE CERTIFICATES. Within thirty (30) days after the end
of each month, Borrowers shall deliver to Agent a certificate in the form of
EXHIBIT "J" executed by the chief financial officer, treasurer, or one of the
vice presidents of each of Borrowers stating that a review of its activities
during such month has been made under his supervision and that such Borrower has
observed, performed and fulfilled each and every obligation and covenant
contained herein and is not in default under any of the same or, if any such
default shall have occurred, specifying the nature and status thereof.
8.03. MONTHLY STATEMENTS. Within thirty (30) days after the end of
each calendar month, Company shall furnish to Agent copies of the consolidated
balance sheet of Company
-36-
and its Subsidiaries as of the close of such calendar month, and consolidated
statements of income and of cash flow of Company and its Subsidiaries for the
portion of the year then ended prepared in accordance with GAAP, in each case
setting forth in comparative form the figures for the preceding year.
8.04 QUARTERLY STATEMENTS. Within forty five (45) days after the end of
each fiscal quarter of Company, Company shall furnish to Agent copies of the
consolidated and consolidating balance sheet of Company and its Subsidiaries as
of the close of such fiscal quarter and consolidated and consolidating
statements of income and consolidated statements of cash flow of Company and its
Subsidiaries for the portion of the year then ended prepared in accordance with
GAAP.
8.05. AUDITED ANNUAL STATEMENTS. As soon as available and in any event
within one hundred twenty (120) days after the close of each fiscal year of
Company, Company shall furnish to each of Banks copies of the Consolidated
balance sheet of Company and its Subsidiaries as of the close of such fiscal
year and Consolidated statements of income, shareholders' equity and the
statement of cash flow of Company and its Subsidiaries for such fiscal year, in
each case setting forth in comparative form the figures for the preceding fiscal
year and accompanied by a separate opinion (which shall not be qualified by
reason of any limitation imposed by Company) of independent public accountants
of recognized national standing selected by Company and satisfactory to Agent,
to the effect that such financial statements have been prepared in accordance
with Generally Accepted Accounting Principles, and that the examination of such
accounts in connection with such financial statements has been made in
accordance with generally accepted auditing standards. In addition, as soon as
available and in any event within 120 days after the close of each fiscal year,
Company shall furnish to each of Banks a report of independent public
accountants of recognized standing selected by Company and satisfactory to Agent
containing a computation of the covenants contained in Sections 9.01, 9.02,
9.03, 9.04, 9.05 or 9.06, all in reasonable detail.
8.06. SEC AND OTHER REPORTS. Promptly upon transmission thereof,
Company shall furnish Agent with copies of all financial statements, proxy
statements, notices and reports which Company sends to its public security
holders and copies of all registration statements (without exhibits) and all
reports which it files with the Securities and Exchange Commission (or any
governmental body or agency succeeding to the functions of the Securities and
Exchange Commission), including, but not limited to, Form 10-Q and Form 10-K.
8.07. DELINQUENCIES. Within thirty (30) days after the end of each
month, Borrowers shall furnish to Agent (a) a summary report reflecting the
amount of all delinquencies and charge-offs for Net Indirect Loans, the
percentage of Net Indirect Loans which are delinquent, and the percentage of Net
Indirect Loans which have been charged off and (b) a summary report reflecting
the amount of all Net Indirect Loans that are past due by cycle.
8.08. LIST OF INDIRECT LOANS. Within thirty (30) days after the end
of each calendar month, Borrowers shall furnish to Agent one (1) copy of a list
of all Finance Contracts and promissory notes evidencing Net Indirect Loans
(other than Finance Contracts subject to a Securitization or subject to an
Additional Warehouse Facility) that reflects the name, address and account
number of each Obligor and the unpaid principal balance of each Finance Contract
and promissory note as of the end of such preceding calendar month.
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8.09. CHARGE OFF VINTAGE REPORTS. Within thirty (30) days after the
end of each month, Borrowers shall furnish Agent with a delinquency and
charge-off vintage report reflecting the percentage of Net Indirect Loans which
are delinquent and which have been charged off by month of origination
accompanied by the supporting data.
8.10. ROLLFORWARD REPORT. Within thirty (30) days after the end of
each month, Borrowers shall furnish to Agent a notes receivable rollforward
report reflecting all originations, collections, charge-offs, pay-offs and
ending balances for Net Indirect Loans.
8.11. REPOSSESSIONS. Within thirty (30) days after the end of each
month, Borrowers shall furnish to Agent a summary report reflecting the
aggregate principal amount of Finance Contracts in respect of which the related
motor vehicle has been repossessed during the reporting period, excluding
Finance Contracts which have been charged off.
8.12. MODIFIED CONTRACTS. Within thirty (30) days after the end of
each month, Borrowers shall furnish to Agent a summary report reflecting the
principal amount of all Finance Contracts that have been modified in any way
during the reporting period which affects the contractual timing or amount of
any installment payment due under such Finance Contract.
8.13. MATERIAL EVENTS. Each of the Borrowers shall promptly notify
Agent of (i) any Material Adverse Effect in its financial condition or business;
(ii) any material default under any material agreement, contract or other
instrument to which such Borrower is a party or by which any of its properties
are bound, or any acceleration of any maturity of any Indebtedness owing by such
Borrower, (iii) any material adverse claim against or affecting such Borrower or
any of its properties which might or could reasonably be expected to have a
Material Adverse Effect; (iv) any litigation, or any claim or controversy which
might become the subject of litigation, against such Borrower or affecting any
of such Borrower's property, if such litigation or potential litigation might or
could reasonably be expected to have, if adversely determined, a Material
Adverse Effect or might or could reasonably be expected to cause an Event of
Default; (v) any material change in underwriting standards or criteria, (vi) a
change in the executive officers of any of Borrowers, or (vii) the occurrence of
any default or Event of Default.
8.14. INSURANCE. Each Borrower shall maintain on its properties
insurance of responsible and reputable companies in such amounts and covering
such risks as is prudent and is usually carried by companies engaged in
businesses similar to that of such Borrower; each Borrower shall furnish Agent,
on request, with certified copies of insurance policies or other appropriate
evidence of compliance with the foregoing covenant.
8.15. LICENSES. Borrowers shall preserve and maintain all material
licenses, privileges, franchises, certificates and the like necessary for the
operation of their respective business.
8.16. COMPLIANCE WITH LOAN DOCUMENTS. Borrowers will comply in all
material respects with any and all covenants and provisions of this Loan
Agreement, the Notes and all other of the Loan Documents.
8.17. COMPLIANCE WITH MATERIAL AGREEMENTS. Borrowers will comply in
all material respects with all material agreements, indentures, mortgages or
documents binding on it or
-38-
affecting their properties or business where the failure to so comply would
have a Material Adverse Effect.
8.18. OPERATIONS AND PROPERTIES. Borrowers will act prudently and in
accordance with customary industry standards in managing or operating its
assets, properties, business and investments; Borrowers will keep in good
working order and condition, ordinary wear and tear excepted, all of their
respective assets and properties which are necessary to the conduct of its
business except for worn out or obsolete assets which have been replaced.
8.19. BOOKS AND RECORDS; ACCESS. Upon prior written notice, Borrowers
will give any representative of any Bank access during all business hours to,
and permit such representative to examine, copy or make excerpts from, any and
all books, records and documents in the possession of Borrowers and relating to
its affairs, and to inspect any of the properties of Borrowers and discuss their
respective affairs with their respective officers, directors, employees and
representatives. Borrowers will maintain complete and accurate books and
records of its transactions in accordance with good accounting practices.
8.20. COMPLIANCE WITH LAW. Company will comply with and will cause
each Subsidiary to comply with all applicable laws, rules, regulations, and all
orders of any Governmental Authority applicable to it or any of its property,
business operations or transactions, a breach of which could have a Material
Adverse Effect on Company's or any Subsidiary's financial condition, business or
credit.
8.21. ERISA COMPLIANCE. Each Borrower shall (a) at all times, make
prompt payment of all contributions required under all Plans and required to
meet the minimum funding standard set forth in ERISA with respect to its Plans;
(b) notify each Bank immediately of any fact, including, but not limited to, any
Reportable Event arising in connection with any of its Plans, which might
constitute grounds for termination thereof by the PBGC or for the appointment by
the appropriate United States District Court of a trustee to administer such
Plan, together with a statement, if requested by a Bank, as to the reason
therefor and the action, if any, proposed to be taken with respect thereto; and
(c) furnish to each Bank, upon its request, such additional information
concerning any of its Plans as may be reasonably requested.
8.22. ADDITIONAL INFORMATION. Borrowers shall promptly furnish to
Agent, at Agent's request, such additional financial or other information
concerning assets, liabilities, operations and transactions of Borrowers as
Agent may from time to time reasonably request.
8.23. PRINCIPAL DEPOSITORY. Borrowers shall use Agent as their
principal depository; Borrowers shall use the lockbox services of Agent and
Co-Agent.
8.24. GUARANTY OF SUBSIDIARY CORPORATIONS. Borrowers shall cause each
Subsidiary formed or acquired after the date of this Agreement to execute a
Guaranty of the Notes within ten (10) days after the date of formation or
acquisition of such Subsidiary except (i) any special purpose Subsidiary formed
solely for the purpose of consummating a Securitization or an Additional
Warehouse Facility and (ii) the Mortgage Subsidiary.
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8.25. FINANCING STATEMENTS. If requested by Agent, each of Borrowers
shall execute and deliver to Agent new financing statements in form satisfactory
to Agent at the time it commences conducting business in any state in which it
has not previously conducted business.
8.26. FIELD TESTS AND ANNUAL AUDIT. Borrowers shall from time to time
permit Banks to conduct field examinations at the expense of Banks. Borrowers
shall permit Agent to engage an independent third party (to be approved by
Majority Banks and Borrowers, which approval shall not be unreasonably withheld
or delayed by Borrowers) to conduct a collateral audit annually at the expense
of Borrowers (not to exceed $25,000 annually plus travel expenses unless an
Event of Default or extraordinary circumstances exist).
8.27. DELIVERY OF INDIRECT LOANS. At the request of Agent or Majority
Banks after the occurrence of an Event of Default, Borrowers shall promptly
deliver to Agent all Finance Contracts and promissory notes evidencing Indirect
Loans duly endorsed or assigned to Agent other than Indirect Loans subject to a
Securitization or an Additional Warehouse Facility.
8.28. INSPECTION OF INDIRECT LOANS. Borrowers shall permit Agent and
its officers and representatives to inspect all Finance Contracts (except
Finance Contracts subject to a Securitization or an Additional Warehouse
Facility) and promissory notes evidencing Indirect Loans once each month during
normal business hours.
8.29 CAPITAL ADEQUACY. If any Bank shall have determined that the adoption
of any applicable law, rule or regulation regarding capital adequacy, or any
change therein, or any change in the interpretation or administration thereof by
any governmental authority, central bank or comparable agency charged with the
interpretation or administration thereof, or compliance by such Bank with any
request or directive regarding capital adequacy (whether or not having the force
of law) of any such authority, central bank or comparable agency, has or would
have the affect of reducing the rate of return on such Bank's capital as a
consequence of its obligations hereunder to a level below that which such Bank
could have achieved but for such adoption, change or compliance by an amount
deemed by such Bank to be material, then from time-to-time, within 15 days after
demand by such Bank, the Borrowers shall pay, without duplication, to such Bank
such additional amount or amounts as will compensate such Bank for such
reduction. Said demand shall include in reasonable detail the amount of and the
cause of such compensation demand.
8.30. SECURITIZATION. Borrowers shall consummate a Securitization at
least every 180 days resulting in the receipt of proceeds by Borrowers of not
less than $100,000,000 which shall be used to reduce any outstanding Swing Line
Borrowings, Revolving Credit Loans and/or outstanding advances or borrowings
under an Additional Warehouse Facility based upon the respective Finance
Contracts sold into the Securitization.
8.31. TRIGGER EVENT. Borrowers shall notify Agent of the occurrence of
a Trigger Event in connection with the delivery of the Compliance Certificate
required by Section 8.02.
8.32. FURTHER ASSURANCES. Upon request of the Agent, Borrowers agree
to promptly cure any defects in the creation, issuance, execution and delivery
of this Loan Agreement or in the Loan Documents. Each of Borrowers, at their
expense, will further promptly execute and deliver to Agent upon request all
such other and further documents, agreements and
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instruments in compliance with or accomplishment of the covenants and
agreements of Borrowers hereunder, or to further evidence and more fully
describe the obligations of Borrowers hereunder, or to correct any omissions
herein, or to more fully state the obligations set out herein.
8.33. INTERCREDITOR AGREEMENT. Borrowers shall execute and deliver to
Agent the Intercreditor Agreement in form satisfactory to Agent prior to
entering into an Additional Warehouse Facility.
ARTICLE IX
NEGATIVE COVENANTS
So long as Banks have any commitment to make Advances hereunder, and until
full payment of the Notes and the performance of the Obligation, Borrowers
covenant and agree that neither Borrowers nor any of their respective
Subsidiaries will, unless Majority Banks otherwise consent in writing:
9.01. RATIO OF ADJUSTED INDEBTEDNESS TO TANGIBLE NET WORTH. Permit the
ratio of the total amount of the Adjusted Indebtedness of Company and its
Subsidiaries to the Tangible Net Worth of Company and its Subsidiaries on a
Consolidated basis to be more than 2.5 to 1.0 at any time; or
9.02. MINIMUM INTEREST COVERAGE RATIO. Permit the Interest Coverage
Ratio computed on a trailing twelve (12) month basis to be less than 2.2 to 1.0
at any time; or
9.03. LOSS. Incur any net loss on a consolidated basis determined in
accordance with GAAP during any calendar quarter; or
9.04. RESTRICTIONS ON DIVIDENDS ON CAPITAL STOCK. Pay any dividends
or make any distributions on or with respect to its outstanding capital stock
except to Company or its wholly-owned Subsidiaries or purchase, redeem or
purchase any of its capital stock in excess of the sum of fifteen million
dollars ($15,000,000) and the aggregate amount of new equity received by Company
as a result of the sale of capital stock of Company or the exercise of options
relating to the capital stock of Company during any trailing twelve (12) months;
or
9.05. LOSSES TO NET INDIRECT LOANS. Permit the ratio of Net Credit
Losses during the prior 12 months to the sum of month end balances of Net
Indirect Loans over the prior 13 months DIVIDED BY 13 to be greater than .10 to
1.0 at any time; or
9.06. DELINQUENT AND REPOSSESSED LOANS TO NET INDIRECT LOANS. Permit
the ratio of the sum of Delinquent Loans and Repossessed Loans to Net Indirect
Loans to be greater than .075 to 1.0 at any time; or
9.07. LIQUIDATION; MERGERS. Liquidate, dissolve or reorganize; or
merge with any other corporation or entity unless Company or one of its
Subsidiaries is the survivor of such merger; or make or permit any of its
Subsidiaries to make any other substantial change in its capitalization or its
business; or
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9.08. ENTER INTO TRANSACTION WITH AFFILIATES. Enter into, or be a
party to, any transaction with any Affiliate, Subsidiary or shareholder of
Company, except (i) as permitted by this Agreement, (ii) in the ordinary course
of and pursuant to the reasonable requirements of Company's business and upon
fair and reasonable terms which are fully disclosed to Agent or (iii) sales of
equity securities to its current shareholders other than management in
connection with future financing upon fair and reasonable terms which are fully
disclosed to Agent which are no less favorable to Company than would be in an
arm's length transaction with Person's not an Affiliate; or
9.09. BUSINESS ACQUISITIONS AND INVESTMENTS. Purchase or otherwise
acquire by merger or otherwise all or substantially all of the assets of any
other corporation, partnership or person or make Investments in Subsidiaries in
excess of twenty five million dollars ($25,000,000) in the aggregate; or
9.10. NEGATIVE PLEDGE. Create or suffer to exist any mortgage, pledge,
security interest, conditional sale or other title retention agreement, charge,
encumbrance or other Lien (whether such interest is based on common law,
statute, other law or contract) upon any of its property or assets, now owned or
hereafter acquired, except for Permitted Liens and Liens in favor of Agent and
Liens granted by the Mortgage Subsidiary; or
9.11. NO GRANT OF NEGATIVE PLEDGE. Agree with any Person not to
create or suffer to exist any mortgage, pledge, security interest or
encumbrance or Lien upon any of its property or assets now owned or hereafter
acquired except with respect to the property or assets of the Mortgage
Subsidiary or in connection with the Senior Notes; or
9.12. SALE OF ASSETS. Sell or permit any Subsidiary other than the
Mortgage Subsidiary to sell any of its material assets except in the ordinary
course of business; or
9.13. CHANGE IN BUSINESS. Borrowers shall not, and shall not permit
any of its Subsidiaries to, directly or indirectly, engage in any business other
than those in which each of them is presently engaged.
9.14. RESTRICTION ON DEBT REPAYMENT. Prepay any of the Senior Notes.
If any action or failure to act by Company or any Subsidiary violates any
covenant or obligations of Borrowers contained herein, then such violation shall
not be excused by the fact that such action or failure to act would otherwise be
required or permitted by any covenant (or exception to any covenant) other than
the covenant violated.
ARTICLE X
EVENTS OF DEFAULT; REMEDIES UPON EVENT OF DEFAULT
10.01. EVENTS OF DEFAULT. An "Event of Default" shall exist if any one or
more of the following events (herein collectively called "Events of Default")
shall occur and be continuing:
(a) Borrowers shall fail to pay when due any principal of, or interest on
any Note or any other fee or payment due hereunder (including a payment under
Section 2.01(c)) or under any of the Loan Documents; or
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(b) Any representation or warranty made under this Loan Agreement, or any
of the Loan Documents or in any certificate or statement furnished to or made to
Banks pursuant hereto or in connection herewith shall prove to be untrue or
inaccurate in any material respect as of the date on which such representation
or warranty is made; or
(c) Failure of any of Borrowers to observe, keep and perform any of the
covenants or agreements in Sections 8.13, 8.20, 8.21, 8.24, 8.28 or 8.30 or in
Article IX of this Loan Agreement; or.
(d) Failure of any of Borrowers to observe, keep and perform any of the
covenants or agreements in Sections 8.01, 8.02, 8.03, 8.04, 8.05, 8.06, 8.07,
8.08, 8.09, 8.10, 8.11, 8.12, or 8.31 and the continuance of such failure for a
period of at least ten (10) days after receipt of written notice from Agent to
Borrowers specifying such failure; or
(e) Failure or refusal of any of Borrowers to observe, keep and perform
any of the covenants, agreements and obligations in this Loan Agreement or any
of the Loan Documents (except the covenants in Sections 8.01, 8.02, 8.03, 8.04,
8.05, 8.06, 8.07, 8.08, 8.09, 8.10, 8.11, 8.12, 8.13, 8.20, 8.21, 8.24, 8.28,
8.30 and 8.31 and in Article IX of this Loan Agreement) and the continuance of
such failure or refusal for a period of twenty (20) days after receipt of
written notice from Agent to Borrowers specifying such failure; or
(f) Any of Borrowers or any of their respective Subsidiaries shall
(i) apply for or consent to the appointment of a receiver, custodian, trustee,
intervenor or liquidator of all or a substantial part of its assets,
(ii) voluntarily become the subject of a bankruptcy, reorganization or
insolvency proceeding or be insolvent or admit in writing that it is unable to
pay its debts as they become due, (iii) make a general assignment for the
benefit of creditors, (iv) file a petition or answer seeking reorganization or
an arrangement with creditors or to take advantage of any bankruptcy or
insolvency laws, (v) file an answer admitting the material allegations of, or
consent to, or default in answering, a petition filed against it in any
bankruptcy, reorganization or insolvency proceeding, or (vi) become the subject
of an order for relief under any bankruptcy, reorganization or insolvency
proceeding; or
(g) An order, judgment or decree shall be entered by any court of
competent jurisdiction or other competent authority approving a petition
appointing a receiver, custodian, trustee, intervenor or liquidator of any of
Borrowers or any of their Subsidiaries or of all or substantially all of their
respective assets, and such order, judgment or decree shall continue unstayed
and in effect for a period of sixty (60) days; or a complaint or petition shall
be filed against any of Borrowers or any of their respective Subsidiaries
seeking or instituting a bankruptcy, insolvency, reorganization, rehabilitation
or receivership proceeding of any of Borrowers or any of their respective
Subsidiaries, and such petition or complaint shall not have been dismissed
within sixty (60) days; or
(h) Any final judgment(s) for the payment of money in excess of the sum of
seven hundred fifty thousand dollars ($750,000) in the aggregate shall be
rendered against any of Borrowers or any of their respective Subsidiaries and
such judgment or judgments shall not be satisfied or discharged at least ten
(10) days prior to the date on which any of its assets could be lawfully sold to
satisfy such judgment; or
(i) There shall occur any change in the condition (financial or otherwise)
of any of Borrowers or any of their respective Subsidiaries which, in the
reasonable opinion of Majority Banks, has a Material Adverse Effect; or
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(j) The occurrence of a default or an event of default under any
Indebtedness, including, without limitation, the Senior Notes, any
Securitization, any Additional Warehouse Facility or similar arrangement or any
other agreement, indenture or other instrument to which any of Borrowers or any
of their respective Subsidiaries is a party; or
(k) Default shall occur under any Indebtedness for borrowed money issued,
assumed or guaranteed by any of Borrowers or any of their respective
Subsidiaries or under any indenture, agreement or other instrument under which
the same may be issued and such default shall continue for a period of time
sufficient to permit the acceleration of maturity of such Indebtedness or any
such Indebtedness shall not be paid when due.
10.02. REMEDIES UPON EVENT OF DEFAULT. If an Event of Default shall have
occurred and be continuing, then Agent shall, at the request of Majority Banks,
exercise any one or more of the following rights and remedies, and any other
remedies in any of the Loan Documents, as Majority Banks in their sole
discretion, may deem necessary or appropriate: (i) declare the principal of, and
all interest then accrued on, the Notes and any other liabilities hereunder to
be forthwith due and payable, whereupon the same shall forthwith become due and
payable without presentment, demand, protest, notice of default, notice of
acceleration or notice of intention to accelerate or other notice of any kind,
all of which Borrowers hereby expressly waive, anything contained herein or in
the Notes to the contrary notwithstanding, (ii) refuse to make any additional
Advances under the Notes, (iii) reduce any claim to judgment, (iv) apply to the
payment of the Notes all collections received in the lockbox with Agent to which
payments on the Eligible Finance Contracts pledged to Agent and Banks are sent
and/or (v) without notice of default or demand, pursue and enforce any of Banks'
rights and remedies under the Loan Documents or otherwise provided under or
pursuant to any applicable law or agreement. Notwithstanding the foregoing, in
the event of the occurrence of an Event of Default under Section 10.01(f) or
Section 10.01(g), the entire amount of principal of, and interest then accrued
on, the Notes shall automatically be immediately due and payable, without
demand, notice of default, notice of acceleration or notice of any kind, all of
which Borrowers hereby expressly waive and the Revolving Commitment of each of
the Banks shall terminate.
Borrowers hereby designate and appoint Agent as its attorney-in-fact to
endorse to Agent for the benefit of Banks after the occurrence of an Event of
Default all checks deposited in the lockbox with Agent to which payments on the
Eligible Finance Contracts pledged to Agent and Banks are sent. This power of
attorney is irrevocable and is coupled with an interest.
10.03. PERFORMANCE BY BANKS. Should any of Borrowers fail to perform in
any material respect any covenant, duty or agreement contained herein or in any
of the Loan Documents, Agent or Banks may, at their option, perform or attempt
to perform such covenant, duty or agreement on behalf of the Borrowers following
written notice to Borrowers of such intention to perform. In such event,
Borrowers shall, at the request of Agent or Banks, promptly pay any amount
reasonably expended by Agent or Banks in performance or attempted performance to
Agent at its principal office in Fort Worth, Texas, together with interest
thereon at the Past Due Rate from the date of such expenditure until paid.
Notwithstanding the foregoing, it is expressly understood that neither Banks nor
Agent assume any liability or responsibility (except liability attributable to
their gross negligence or willful misconduct) for the performance of any duties
of Borrowers hereunder or under any of the Loan Documents or other control over
the management and affairs of the Borrowers.
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10.04. REMEDIES CUMULATIVE. All covenants, conditions, provisions,
warranties, indemnities and other undertakings of Borrowers contained in this
Agreement, or in any document referred to herein or in any agreement
supplementary hereto or in any of the Loan Documents shall be deemed cumulative
to and not in derogation or substitution of any of the terms, covenants,
conditions or agreements of Borrowers contained herein. The failure or delay of
Agent or Banks to exercise or enforce any rights, liens, powers or remedies
hereunder or under any of the aforesaid agreements or other documents against
any security shall not operate as a waiver of such liens, rights, powers and
remedies, but all such rights, powers and remedies shall continue in full force
and effect until the loans evidenced by the Notes and the entire Obligation of
Borrowers to Banks shall have been fully satisfied, and all rights, liens,
powers and remedies herein provided for are cumulative and none are exclusive.
ARTICLE XI
ARBITRATION PROGRAM
11.01. ARBITRATION. Upon the demand of any party, any Dispute shall be
resolved by binding arbitration (except as set forth in (e) below) in accordance
with the terms of this Article XI. A "Dispute" shall mean any action, dispute,
claim or controversy of any kind, whether in contract or tort, statutory or
common law, legal or equitable, now existing or hereafter arising under or in
connection with, or in any way pertaining to (i) any of the Loan Documents, (ii)
any past, present or future extensions of credit and other activities,
transactions or obligations of any kind related directly to any of the Loan
Documents, including without limitation, any of the foregoing arising in
connection with the exercise of any self-help, ancillary or other remedies
pursuant to any of the Loan Documents or (iii) any contractual arrangement or
relationship between any of Borrowers and Agent. Any party may by summary
proceedings bring an action in court to compel arbitration of a Dispute;
provided, however, that the pendency of any Dispute or such proceedings shall
not preclude the Agent or any Bank from exercising its remedies as contemplated
by Section 11.03. Any party who fails or refuses to submit to arbitration
following a lawful demand by any other party shall bear all costs and expenses
incurred by such other party in compelling arbitration of any Dispute.
11.02 GOVERNING RULES. Arbitration proceedings shall be administered
by the American Arbitration Association ("AAA") or such other administrator as
the parties shall mutually agree upon in accordance with the AAA Commercial
Arbitration Rules. All Disputes submitted to arbitration shall be resolved in
accordance with the Federal Arbitration Act (Title 9 of the United States Code),
notwithstanding any conflicting choice of law provision in any of the Loan
Documents. The arbitration shall be conducted at a location in Texas selected
by the AAA or other administrator. If there is any inconsistency between the
terms hereof and any such rules, the terms and procedures set forth herein shall
control. All statutes of limitation applicable to any Dispute shall apply to
any arbitration proceeding. All discovery activities shall be expressly limited
to matters directly relevant to the dispute being arbitrated. Judgment upon any
award rendered in an arbitration may be entered in any court having
jurisdiction; provided, however, that nothing contained herein shall be deemed
to be a waiver by any party that is a bank of the protections afforded to it
under 12 U.S.C. Section 91 or any similar applicable state law.
11.03 NO WAIVER, PROVISIONAL REMEDIES, SELF-HELP AND FORECLOSURE. No
provision hereof shall limit the right of any party to exercise self-help
remedies such as setoff, foreclosure against or sale of any real or personal
property collateral or security, or to obtain provisional or ancillary remedies,
including without limitation, injunctive relief, sequestration, attachment,
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garnishment or the appointment of a receiver, from a court of competent
jurisdiction before, after or during the pendency of any arbitration or other
proceeding. The exercise of any such remedy shall not waive the right of any
party to compel arbitration hereunder.
11.04 ARBITRATOR QUALIFICATIONS AND POWERS; AWARDS. Arbitrators must
be active members of the Texas State Bar with expertise in the substantive laws
applicable to the subject matter of the Dispute. Arbitrators are empowered to
resolve Disputes by summary rulings in response to motions filed prior to the
final arbitration hearing. Arbitrators (i) shall resolve all Disputes in
accordance with the substantive law of the state of Texas, (ii) may grant any
remedy or relief that a court of the state of Texas could order or grant within
the scope hereof and such ancillary relief as is necessary to make effective any
award, and (iii) shall have the power to award recovery of all costs and fees,
to impose sanctions and to take such other actions as they deem necessary to the
same extent a judge could pursuant to the Federal Rules of Civil Procedure, the
Texas rules of civil Procedure or other applicable law. Any Dispute in which
the amount in controversy is $5,000,000 or less shall be decided by a single
arbitrator who shall not render an award of greater than $5,000,000 (including
damages, costs, fees and expenses). By submission to a single arbitrator, each
party expressly waives any right or claim to recover more than $5,000,000. Any
Dispute in which the amount in controversy exceeds $5,000,000 shall be decided
by majority vote of a panel of three arbitrators; provided however, that all
three arbitrators must actively participate in all hearings and deliberations.
11.05 JUDICIAL REVIEW. Notwithstanding anything herein to the
contrary, in any arbitration in which the amount in controversy exceeds
$25,000,000, the arbitrators shall be required to make specific, written
findings of fact and conclusions of law. In such arbitrations (i) the
arbitrators shall not have the power to make any award which is not supported by
substantial evidence or which is based on legal error, (ii) an award shall not
be binding upon the parties unless the findings of fact are supported by
substantial evidence and the conclusions of law are not erroneous under the
substantive law of the state of Texas, and (iii) the parties shall have in
addition to the grounds referred to in the Federal Arbitration Act for vacating,
modifying or correcting an award the right to judicial review of (A) whether the
findings of fact rendered by the arbitrators are supported by substantial
evidence, and (B) whether the conclusions of law are erroneous under the
substantive law of the state of Texas. Judgment confirming an award in such a
proceeding may be entered only if a court determines the award is supported by
substantial evidence and not based on legal error under the substantive law of
the state of Texas.
11.06 MISCELLANEOUS. To the maximum extent practicable, the AAA, the
arbitrators and the parties shall take all action required to conclude any
arbitration proceeding within 180 days of the filing of the Dispute with the
AAA. No arbitrator or other party to an arbitration proceeding may disclose the
existence, content or results thereof, except for disclosures of information by
a party required in the ordinary course of its business, by applicable law or
regulation, or to the extent necessary to exercise any judicial review rights
set forth herein. If more than one agreement for arbitration by or between the
parties potentially applies to a Dispute, the arbitration provision most
directly related to the Loan Documents or the subject matter of the Dispute
shall control. This arbitration provision shall survive termination, amendment
or expiration of any of the Loan Documents.
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ARTICLE XII
THE AGENT
12.01. APPOINTMENT AND AUTHORIZATION. Each Bank hereby irrevocably
appoints and authorizes Agent to take such action on its behalf and to exercise
such powers under the Loan Documents as are delegated to Agent by the terms
thereof, together with such powers as are reasonably incidental thereto. With
respect to its Commitment, the Advances made by it and the Notes issued to it,
Agent shall have the same rights and powers under this Agreement as any other
Bank and may exercise the same as though it were not Agent; and the term "Bank"
or "Banks" shall, unless otherwise expressly indicated, include the Agent in its
capacity as a Bank. The Agent and its affiliates may accept deposits from, lend
money to, act as trustee under indentures of, and generally engage in any kind
of business with, Borrowers, and any Person which may do business with
Borrowers, all as if Agent were not Agent hereunder and without any duty to
account therefor to Banks.
12.02. NOTE HOLDERS. Agent may treat the payee of any Note as the holder
thereof until written notice of transfer shall have been filed with it signed by
such payee and in form satisfactory to Agent.
12.03. CONSULTATION WITH COUNSEL. Banks agree that Agent may consult with
legal counsel selected by it and shall not be liable for any action taken or
suffered in good faith by them in accordance with the advice of such counsel.
12.04. DOCUMENTS. Agent shall not be under a duty to examine or pass upon
the validity, effectiveness, enforceability, genuineness or value of any of the
Loan Documents or any other instrument or document furnished pursuant thereto or
in connection therewith, and Agent shall be entitled to assume that the same are
valid, effective, enforceable and genuine and what they purport to be.
12.05. RESIGNATION OR REMOVAL OF AGENT. Subject to the appointment and
acceptance of a successor Agent as provided below, the Agent may resign at any
time by giving written notice thereof to Banks and Borrowers and the Agent may
be removed at any time with or without cause by Majority Banks. Upon any such
resignation or removal, Majority Banks shall have the right to appoint a
successor Agent. If no successor Agent shall have been so appointed by Majority
Banks and shall have accepted such appointment within 30 days after the retiring
Agent's giving of notice of resignation or Majority Banks' removal of the
retiring Agent, then the retiring Agent may, on behalf of the Banks, appoint a
successor Agent. Upon the acceptance of any appointment as Agent hereunder by a
successor Agent, such successor Agent shall thereupon succeed to and become
vested with all the rights, powers, privileges and duties of the retiring Agent,
and the retiring Agent shall be discharged from its duties and obligations
hereunder. After any retiring Agent's resignation or removal hereunder as
Agent, the provisions of this Article 12 shall continue in effect for its
benefit in respect to any actions taken or omitted to be taken by it while it
was acting as Agent.
12.06. RESPONSIBILITY OF AGENT. It is expressly understood and agreed
that the obligations of Agent under the Loan Documents are only those expressly
set forth in the Loan Documents and that Agent shall be entitled to assume that
no Event of Default or event which,
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with the giving of notice or lapse of time, or both, would constitute an
Event of Default has occurred and is continuing, unless Agent has actual
knowledge of such fact or has received notice from a Bank that such Bank
considers that an Event of Default or such event has occurred and is
continuing and specifying the nature thereof. Agent shall furnish to each of
Banks within five (5) Business Days receipt copies of the documents,
statements and reports furnished to Agent pursuant to Sections 8.01, 8.02,
8.03, 8.04, 8.05, 8.06, 8.07, 8.09, 8.10, 8.11 and 8.12. Banks recognize and
agree, that for purposes of Section 2.02(b) hereof, Agent shall not be
required to determine independently whether the conditions described in
Sections 6.02(a), (b), (c), (d) and (e) have been satisfied except for the
receipt of a Request For Borrowing and, in disbursing funds to Borrowers, may
rely fully upon statements contained in the relevant Request for Borrowing.
Neither Agent nor any of its directors, officers or employees shall be liable
for any action taken or omitted to be taken by it under or in connection with
the Loan Documents, except for its own gross negligence or willful
misconduct. Agent shall incur no liability under or in respect of any of the
Loan Documents by acting upon any notice, consent, certificate, warranty or
other paper or instrument reasonably believed by it to be genuine or
authentic or to be signed by the proper party or parties, or with respect to
anything which it may do or refrain from doing in the reasonable exercise of
its judgment, or which may seem to it to be necessary or desirable in the
premises.
The relationship between Agent and each of the Banks is only that of agent
and principal and has no fiduciary aspects, and Agent's duties hereunder are
acknowledged to be only ministerial and not involving the exercise of discretion
on its part. Nothing in this Loan Agreement or elsewhere contained shall be
construed to impose on Agent any duties or responsibilities other than those for
which express provision is herein made. In performing its duties and functions
hereunder, Agent does not assume and shall not be deemed to have assumed, and
hereby expressly disclaims, any obligation or responsibility toward or any
relationship of agency or trust with or for, Borrowers. As to any matters not
expressly provided for by this Loan Agreement (including, without limitation,
enforcement or collection of the Notes), Agent shall not be required to exercise
any discretion or take any action, but shall be required to act or to refrain
from acting (and shall be fully protected in so acting or refraining from
acting) upon the instructions of Majority Banks or all the Banks where unanimity
is required and such instructions shall be binding upon all Banks and all
holders of Notes; PROVIDED, HOWEVER, that Agent shall not be required to take
any action which exposes Agent to personal liability or which is contrary to
this Loan Agreement or applicable law.
12.07. NOTICES OF EVENT OF DEFAULT. In the event that Agent shall have
acquired actual knowledge of any Event of Default or of an event which, with the
giving of notice or the lapse of time, or both, would constitute an Event of
Default, Agent shall promptly give written notice thereof to the other Banks.
12.08. INDEPENDENT INVESTIGATION. Each of the Banks severally represents
and warrants to Agent that it has made its own independent investigation and
assessment of the financial condition and affairs of the Borrowers in connection
with the making and continuation of its participation in the Loans hereunder and
has not relied exclusively on any information provided to such Bank by Agent in
connection herewith, and each Bank represents, warrants and undertakes to Agent
that it shall continue to make its own independent appraisal of the
creditworthiness of the Borrowers while the Loans are outstanding or its
commitment hereunder is in force.
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12.09. INDEMNIFICATION. Banks agree to indemnify Agent (to the extent not
reimbursed by Borrowers), ratably according to the proportion that the
respective principal amounts of the Note held by each of them bears to the sum
of the aggregate principal amount of the Notes, from and against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses, or disbursements of any kind or nature whatsoever which may be
imposed on, incurred by or asserted against Agent in any way relating to or
arising out of the Loan Documents or any action taken or omitted by Agent under
the Loan Documents, provided that no Bank shall be liable for any portion of
such liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements resulting from Agent's gross negligence
or willful misconduct.
12.10. BENEFIT OF ARTICLE XII. The agreements contained in this Article
XII are solely for the benefit of Agent and the Banks, and are not for the
benefit of, or to be relied upon by, the Borrowers, or any third party.
12.11. NOT A LOAN TO AGENT; NO DUTY TO REPURCHASE. No amount paid by any
Bank hereunder shall be considered a loan to Agent. Agent shall have no
obligation to repurchase any interest from any Bank.
12.12. BANK'S REPRESENTATIONS. Each Bank represents and warrants to Agent
and the other Banks that: (a) it is engaged in the business of entering into
commercial lending transactions (including transactions of the nature
contemplated herein) and can bear the economic risk related to the same; and (b)
it does not consider the obligations hereunder to constitute the "purchase" or
"sale" of a "security" within the meaning of any federal or state securities
statute or law, or any rule or regulation under any of the foregoing.
12.13 CO-AGENT. It is expressly understood and agreed that Bank One,
Texas, N.A. shall have no responsibility or obligations as a co-agent hereunder
other than its obligations as a Bank under this Loan Agreement.
ARTICLE XIII
MISCELLANEOUS
13.01. WAIVER. No failure to exercise, and no delay in exercising, on the
part of any Bank, any right hereunder shall operate as a waiver thereof, nor
shall any single or partial exercise thereof preclude any other further exercise
thereof or the exercise of any other right. The rights of Banks hereunder and
under the Loan Documents shall be in addition to all other rights provided by
law. No notice or demand given in any case shall constitute a waiver of the
right to take other action in the same, similar or other instances without such
notice or demand.
13.02. NOTICES. Any notices or other communications required or permitted
to be given by this Agreement or any other documents relating to the loans
evidenced by the Notes (the "Loan Documents") must be given in writing and
personally delivered, sent by telecopy or telex (answerback received) or mailed
by prepaid certified or registered mail, return receipt requested, to the party
to whom such notice or communication is directed at the address of such party as
follows:
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Borrowers: AmeriCredit Corp.
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: Chief Financial Officer
FAX No. (▇▇▇) ▇▇▇-▇▇▇▇
AmeriCredit Financial Services, Inc.
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: Chief Financial Officer
FAX No. (▇▇▇) ▇▇▇-▇▇▇▇
AmeriCredit Operating Co., Inc.
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: Chief Financial Officer
FAX No. (▇▇▇) ▇▇▇-▇▇▇▇
Agent: ▇▇▇▇▇ Fargo Bank (Texas), National Association
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
FAX No. (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇ Fargo Bank, N.A.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Agency Department - ▇▇▇▇▇▇▇ Go
FAX No. (▇▇▇) ▇▇▇-▇▇▇▇
Any such notice or other communication shall be deemed to have been given on the
date it is personally delivered or sent by telecopy or telex as aforesaid or, if
mailed, on the second day after it is mailed as aforesaid (whether actually
received or not). Any party may change its address for purposes of this Loan
Agreement by giving notice of such change to all other parties pursuant to this
Section 13.02. Any notice given hereunder by Borrowers to Agent shall
constitute notice to all of the Banks. Agent shall promptly notify Banks of any
notice given by Borrowers hereunder.
13.03. PAYMENT OF EXPENSES. Borrowers agree to pay all costs and expenses
of Banks (including, without limitation, the reasonable attorneys' fees of
Banks' outside legal counsel) incurred by Banks in connection with the
preservation and enforcement (which include work-outs and bankruptcy related
matters) of Banks' rights under this Loan Agreement, the Notes, and/or the
other Loan Documents, and all reasonable costs and expenses of Banks (including
without limitation the reasonable fees and expenses of Banks' outside legal
counsel) in connection with the negotiation, preparation, execution and delivery
of this Loan Agreement,
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the Notes, and the other Loan Documents and any and all amendments,
modifications and supplements thereof or thereto.
13.04. MAXIMUM INTEREST RATE. Regardless of any provisions contained in
this Loan Agreement, the Notes or in any of the other Loan Documents, Banks
shall never be deemed to have contracted for or be entitled to receive, collect
or apply as interest on the Notes any amount in excess of the Maximum Rate, and,
in the event any Bank ever receives, collects or applies as interest any such
excess, such amount which would be excessive interest shall be deemed to be a
partial prepayment of principal and treated hereunder as such, and, if the
principal amount of the Obligations is paid in full, any remaining excess shall
forthwith be paid to Borrowers. In determining whether or not the interest paid
or payable under any specific contingency exceeds the Maximum Rate, Borrowers
and Banks shall, to the maximum extent permitted by applicable law, (i)
characterize any nonprincipal payments (other than payments which are expressly
designated as interest payments hereunder) as an expense, fee, or premium,
rather than as interest, (ii) exclude voluntary prepayments and the effect
thereof, and (iii) amortize, prorate, allocate and spread, in equal parts, the
total amount of interest throughout the entire contemplated term of the
indebtedness so that interest paid by Borrowers does not exceed the Maximum
Rate; provided that, if a Note is paid and performed in full prior to the end of
the full contemplated term thereof, and if the interest received for the actual
period of existence thereof exceeds the Maximum Rate, Banks shall refund to
Borrowers the amount of such excess or credit the amount of such excess against
the principal amount of the Notes and, in such event, Banks shall not be subject
to the penalties provided by any laws for contracting for, charging, taking,
reserving or receiving interest in excess of the Maximum Rate.
13.05. AMENDMENTS, WAIVERS, ETC. Agent may enter into any amendment or
modification of, or may waive compliance with the terms of, any of the Loan
Documents with the written direction of the Majority Banks; PROVIDED THAT the
consent of all Banks shall be required before Agent may take or omit to take any
action under any of the Loan Documents directly affecting (a) the extension of
the maturity of or the postponement of the payment of any portion of the
principal of or interest on Revolving Credit Loans or any fees relating thereto,
(b) a reduction of or increase in the principal amount of or rate of interest
payable on Revolving Credit Loans or any fees related thereto, (c) the release
of any of Borrowers, (d) the release of any of the Guarantors, (e) the release
of any collateral except in the case of a Securitization or an Additional
Warehouse Facility or (f) any material change in the definition of Revolving
Credit Borrowing Base, in the definition of Net Amount or in the definition of
Eligible Finance Contract. Nor shall any of the following occur without the
consent of all Banks: (a) any amendment to the definition of Majority Banks, or
(b) any amendment to this Section 13.05. The Commitment of a Bank shall not be
increased without the consent of such Bank. If any Bank is unwilling to consent
to any amendment or modification of, or waiver of compliance with, the Loan
Agreement (where the consent of such Bank is required), the consenting Majority
Banks shall have the right, but not the obligation, to repurchase such Bank's
Percentage of the Obligation at such time for a purchase price equal to Bank's
Percentage of any and all unpaid Advances made by Agent to the Borrowers under
the Loan Agreement, any and all unpaid interest thereon and unpaid accrued fees
or other amounts owing to such Bank.
13.06. GOVERNING LAW. This Loan Agreement has been prepared, is being
executed and delivered, and is intended to be performed in the State of Texas,
and the substantive laws of such state and the applicable federal laws of the
United States of America shall govern the validity, construction, enforcement
and interpretation of this Loan Agreement and all of the other Loan Documents.
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13.07. INVALID PROVISIONS. If any provision of any Loan Document is
held to be illegal, invalid or unenforceable under present or future laws
during the term of this Loan Agreement, such provision shall be fully
severable; such Loan Document shall be construed and enforced as if such
illegal, invalid or unenforceable provision had never comprised a part of
such Loan Document; and the remaining provisions of such Loan Document shall
remain in full force and effect and shall not be affected by the illegal,
invalid or unenforceable provision or by its severance from such Loan
Document. Furthermore, in lieu of each such illegal, invalid or
unenforceable provision, there shall be added as part of such Loan Document a
provision mutually agreeable to Borrowers, Agent and Majority Banks as
similar in terms to such illegal, invalid or unenforceable provision as may
be possible and be legal, valid and enforceable. In the event Borrowers,
Agent and Majority Banks are unable to agree upon a provision to be added to
the Loan Document within a period of ten (10) Business Days after a provision
of the Loan Document is held to be illegal, invalid or unenforceable, then a
provision reasonably acceptable to Agent and Majority Banks as similar in
terms to the illegal, invalid or unenforceable provision as is possible and
be legal, valid and enforceable shall be added automatically to such Loan
Document. In either case, the effective date of the added provision shall be
the date upon which the prior provision was held to be illegal, invalid or
unenforceable.
13.08. HEADINGS. Section headings are for convenience of reference only
and shall in no way affect the interpretation of this Loan Agreement.
13.09. PARTICIPATION AGREEMENTS AND ASSIGNMENTS. (a)(i) Subject to
Section 13.09(a)(ii), each Bank may assign to one or more Eligible Assignees all
or a portion of its rights and obligations under this Loan Agreement (including,
without limitation, all or a portion of its Commitment, the Loan owing to it and
the Note held by it) and the other Loan Documents; PROVIDED, HOWEVER, that (A)
no such assignment shall be made except to an Affiliate unless such assignment
and assignee have been approved by the Agent and, so long as no Events of
Default exists, the Borrowers, such approvals not to be unreasonably withheld,
(B) each such assignment shall be of a constant, and not a varying, percentage
of all rights and obligations of the assignor under this Loan Agreement and the
other Loan Documents, and no assignment shall be made unless it covers a pro
rata share of all rights and obligations of such assignor under this Loan
Agreement and the other Loan Documents, (C) the amount of the Commitment of the
assigning Bank being assigned pursuant to each such assignment (determined as of
the date of the Assignment and Acceptance substantially in the form of EXHIBIT K
(hereinafter referred to as the "Assignment and Acceptance") with respect to
such assignment) shall, unless otherwise agreed to by the Agent, in no event be
less than $10,000,000 or, if less, the entirety of its Commitment and shall be
an integral multiple of $1,000,000, (D) each such assignment shall be to an
Eligible Assignee (defined below), (E) the parties to each such assignment shall
execute and deliver to the Agent, for its acceptance and recording in the
Register (defined below), an Assignment and Acceptance, together with any Note
subject to such assignment and (F) Agent receives a fee from the assignor in the
amount of $2,500. Upon such execution, delivery, acceptance and recording, from
and after the effective date specified in each Assignment and Acceptance, (1)
the assignee thereunder shall be a party hereto and, to the extent that rights
and obligations under the Loan Documents have been assigned to it pursuant to
such Assignment and Acceptance, have the rights and obligations of a Bank under
the Loan Documents, (2) the assigning Bank thereunder shall, to the extent that
rights and obligations under the Loan Documents have been assigned by it
pursuant to such Assignment and Acceptance, relinquish its rights and be
released from its obligations under the Loan Documents (and, in the case of an
Assignment and Acceptance covering all or the remaining portion of an assigning
Bank's rights and obligations under this Loan Agreement, such Bank shall cease
to be a party hereto), and (3) Section 2.01(a) shall be deemed to have been
-52-
automatically amended to reflect the revised Commitments. As used herein,
"Eligible Assignee" shall mean (a) any Bank or any Affiliate of any Bank; (b) a
commercial bank organized under the laws of the United States, or any state
thereof, and having total assets in excess of $1,000,000,000 and having deposits
rated in either of the two highest generic letter rating categories (without
regard to subcategories) from either Standard & Poor's Corporation or ▇▇▇▇▇'▇
Investors Service, Inc.; (c) a commercial bank organized under the laws of any
other country which is a member of the Organization for Economic Cooperation and
Development ("OECD"), or a political subdivision of any such country, and having
total assets in excess of $1,000,000,000, provided that such bank is acting
through a branch or agency located in the country in which it is organized or
another country which is also a member of the OECD; (d) the central bank of any
country which is a member of the OECD; (e) any other financial institution
approved by the Agent; and (f) a Federal Reserve Bank.
(ii) In the event any Bank desires to transfer all or any portion of its
rights and obligations under the Loan Documents, it shall give the Borrowers and
the Agent prior written notice of the identity of such transferee and the terms
and conditions of such transfer (a "TRANSFER NOTICE"). Except in the case of a
transfer to an Affiliate of all or a portion of a Bank's rights and obligations
under the Loan Documents, so long as no Event of Default has occurred and is
continuing, the Borrowers may, no later than ten (10) days following receipt of
such Transfer Notice, designate an alternative transferee and such Bank shall
thereupon be obligated to sell the interests specified in such Transfer Notice
to such alternative transferee, subject to the following: (A) such transfer
shall be made on the same terms and conditions outlined in such Transfer Notice,
(B) such transfer shall otherwise comply with the terms and conditions of the
Loan Documents (including Section 13.09(a)(i), and (C) such alternative
transferee must be an Eligible Assignee approved by the Agent. If the Borrowers
shall fail to designate an alternative transferee within such ten (10) day
period, such Bank shall, subject to compliance with the other terms and
provisions hereof, be free to consummate the transfer described in such Transfer
Notice.
(b) By executing and delivering an Assignment and Acceptance
substantially in the form of EXHIBIT K, the assigning Bank thereunder and the
assignee thereunder confirm to and agree with each other and the other
parties hereto as follows: (i) other than as provided in such Assignment and
Acceptance, such assigning Bank makes no representation or warranty and
assumes no responsibility with respect to any statements, warranties or
representations made in or in connection with the Loan Documents or the
execution, legality, validity, enforceability, genuineness, sufficiency or
value of this Loan Agreement or any other instrument or document furnished
pursuant hereto, (ii) such assigning Bank makes no representation or warranty
and assumes no responsibility with respect to the financial condition of the
Borrowers or the performance or observance by the Borrowers of any of its
obligations under this Loan Agreement or any other instrument or document
furnished pursuant hereto; (iii) such assignee confirms that it has received
a copy of this Loan Agreement and the other Loan Documents, together with
copies of the financial statements referred to in Section 7.07 and such other
documents and information as it has deemed appropriate to make its own credit
analysis and decision to enter into such Assignment and Acceptance; (iv) such
assignee will, independently and without reliance upon any of the Banks
(including such assigning Bank) and based on such documents and information
as it shall deem appropriate at the time, continue to make its own credit
decisions in taking or not taking action under this Loan Agreement; (v) such
assignee confirms that it is an Eligible Assignee; (vi) such assignee
appoints and authorizes the Agent to take such action on its behalf and to
exercise such powers under this Loan Agreement and the other Loan Documents
as are delegated to such Person by the terms thereof, together with such
powers as are reasonably incidental thereto; and (vii) such assignee agrees
that it will
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perform in accordance with their terms all of the obligations which by the terms
of this Loan Agreement and the other Loan Documents are required to be performed
by it as a Bank.
(c) The Agent shall maintain a copy of each Assignment and Acceptance
delivered to and accepted by it and a register for the recordation of the
names and addresses of the Banks and the Commitment of, and principal amount
of the Notes owing to, each Bank from time to time (the "REGISTER"). The
entries in the Register shall be conclusive and binding for all purposes,
absent manifest error, and the Borrowers and each of the Banks may treat each
Person whose name is recorded in the Register as a Bank hereunder for all
purposes of this Loan Agreement. The Register shall be available for
inspection by the Borrowers or any of the Banks at any reasonable time and
from time to time upon reasonable prior notice.
(d) Upon its receipt of an Assignment and Acceptance executed by an
assigning Bank and an assignee representing that it is an Eligible Assignee,
together with any Note subject to such assignment, the Agent shall, if such
Assignment and Acceptance has been completed and is in substantially the form
of EXHIBIT K hereto and satisfies all other requirements set forth in this
Section 13.09, (i) accept such Assignment and Acceptance, (ii) record the
information contained therein in the Register and (iii) give prompt notice
thereof to the Borrowers and the other Banks. Within five (5) Business Days
after its receipt of such notice, the Borrowers, at their own expense, shall
execute and deliver to the Agent, in exchange for the surrendered Note, a new
Note to the order of such Eligible Assignee in an amount corresponding to the
Commitment assumed by such Eligible Assignee pursuant to such Assignment and
Acceptance and, if the assigning Bank has retained a Commitment hereunder, a
new Note to the order of the assigning Bank in an amount corresponding to the
Commitment retained by it hereunder. Such new Notes shall be in an aggregate
principal amount equal to the aggregate principal amount of such surrendered
Notes, shall be dated the effective date of such Assignment and Acceptance
and shall otherwise be in substantially the form prescribed by EXHIBIT K
hereto.
(e) Each Bank may sell participations to one or more banks or other
entities in or to all or a portion of its rights and obligations under this
Loan Agreement and the other Loan Documents (including, without limitation,
all or a portion of its Commitment and the Notes owing to it); PROVIDED,
HOWEVER, that (i) such Bank's obligations under this Loan Agreement
(including, without limitation, its Commitment to the Borrowers hereunder)
and the other Loan Documents shall remain unchanged, (ii) such Bank shall
remain solely responsible to the other parties hereto for the performance of
such obligations, and the participating banks or other entities shall not be
considered a "Bank" for purposes of the Loan Documents, (iii) the
participating banks or other entities shall be entitled to the cost
protection provision contained in Section 4.03 and Section 4.05, in each case
to the same extent that the Bank from which such participating bank or other
entity acquired its participations would be entitled to the benefit of such
cost protection provisions and (iv) the Borrowers and the other Banks shall
continue to deal solely and directly with such Bank in connection with such
Bank's rights and obligations under this Loan Agreement and the other Loan
Documents, and such Bank shall retain the sole right to enforce the
obligations of the Borrowers relating to the Loans and to approve any
amendment, modification or waiver of any provision of this Loan Agreement
(other than amendments, modifications or waivers with respect to the amounts
of any fees payable hereunder or the amount of principal of or the rate at
which interest is payable on the Notes, or the dates fixed for payments of
principal or interest on the Notes).
(f) Any Bank may, in connection with any assignment or participation
or proposed assignment or participation pursuant to this Section 13.09,
disclose to the assignee or
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participant or proposed assignee or participant, any information
relating to the Borrowers furnished to such Bank by or on behalf of the
Borrowers; PROVIDED that prior to any such disclosure, each such assignee or
participant or proposed assignee or participant shall agree (subject to
customary exceptions) to preserve the confidentiality of any confidential
information relating to the Borrowers received from such Bank.
(g) The obligations of the Borrowers in this Loan Agreement, the Notes
and any other Loan Documents shall not be assignable or transferable by
Borrowers and any purported assignment or transfer shall, as to the Agent and
Banks, be of no force and effect.
13.10. ARTICLE 15.10(b). Borrowers and Banks hereby agree that, except
for Article 15.10(b) thereof, the provisions of Charter 15 of Title 79 of the
Revised Civil Statutes of Texas, 1925, as amended (regulating certain revolving
credit loans and revolving triparty accounts) shall not apply to the Loan
Documents.
13.11. SURVIVAL. All representations and warranties made by Borrowers
herein shall survive delivery of the Notes and the making of the Revolving
Credit Loans.
13.12. NO THIRD PARTY BENEFICIARY. The parties do not intend the benefits
of this Agreement to inure to any third party, nor shall this Loan Agreement be
construed to make or render Banks liable to any materialman, supplier,
contractor, subcontractor, purchaser or lessee of any property owned by
Borrowers, or for debts or claims accruing to any such persons against
Borrowers. Notwithstanding anything contained herein or in the Notes, or in any
other Loan Document, or any conduct or course of conduct by any or all of the
parties hereto, before or after signing this Loan Agreement or any of the other
Loan Documents, neither this Loan Agreement nor any other Loan Document shall be
construed as creating any right, claim or cause of action against Banks, or any
of its officers, directors, agents or employees, in favor of any materialman,
supplier, contractor, subcontractor, purchaser or
lessee of any property owned by Borrowers, nor to any other person or entity
other than Borrowers.
13.13. COUNTERPARTS. This Loan Agreement may be executed by one or more
of the parties to this Loan Agreement on any number of separate counterparts
(including by facsimile transmission), and all of said counterparts taken
together shall be deemed to constitute one and the same instrument. A set of
the copies of this Loan Agreement signed by all the parties shall be lodged with
the Borrowers and the Agent.
13.14. FINAL AGREEMENT. THIS WRITTEN AGREEMENT REPRESENTS THE FINAL
AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO
UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
EXECUTED effective as of the 3rd day of October 1997.
AMERICREDIT CORP., a Texas
corporation
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By:___________________________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Vice Chairman and
Chief Financial Officer
AMERICREDIT FINANCIAL SERVICES, INC.,
a Delaware corporation
By:___________________________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Vice Chairman and
Chief Financial Officer
AMERICREDIT OPERATING CO., INC.,
a Delaware corporation
By:___________________________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Vice Chairman and
Chief Financial Officer
BORROWERS
AMERICREDIT PREMIUM FINANCE,
INC., a Delaware corporation
By:___________________________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇, President
ACF INVESTMENT CORP., a Delaware
corporation
By:___________________________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Vice Chairman and
Chief Financial Officer
GUARANTORS
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▇▇▇▇▇ FARGO BANK (TEXAS), NATIONAL ASSOCIATION
By:___________________________________________
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Vice President
BANK ONE, TEXAS, N.A.
By:___________________________________________
J. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Vice President
LASALLE NATIONAL BANK
By:___________________________________________
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, First Vice
President
THE SUMITOMO BANK LIMITED
By:___________________________________________
▇▇▇▇ ▇▇▇▇▇▇, Vice President and
Manager
By:___________________________________________
▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Vice President
▇▇▇▇▇▇ TRUST AND SAVINGS BANK
By:___________________________________________
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Vice
President
COMERICA BANK-TEXAS
By:___________________________________________
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Senior Vice
President
TEXAS COMMERCE BANK NATIONAL ASSOCIATION
By:___________________________________________
Buddy Wurthrich, Vice President
BANKAMERICA BUSINESS CREDIT, INC.
By:___________________________________________
Name:______________________________________
Title:_____________________________________
-▇▇-
▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇
By:___________________________________________
Name: ________________________________________
Title:________________________________________
CIBC INC.
By:___________________________________________
Name: ________________________________________
Title:________________________________________
CREDIT LYONNAIS NEW YORK BRANCH
By:___________________________________________
Name: ________________________________________
Title:________________________________________
BANKBOSTON, N.A.
By:___________________________________________
Name: ________________________________________
Title:________________________________________
THE LONG-TERM CREDIT BANK
OF JAPAN, LIMITED
By:___________________________________________
Name: ________________________________________
Title:________________________________________
BANKS
▇▇▇▇▇ FARGO BANK (TEXAS), NATIONAL ASSOCIATION
By:___________________________________________
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Vice President
-▇▇-
▇▇▇▇▇
▇▇▇▇ ▇▇▇, ▇▇▇▇▇, N.A.
By:___________________________________________
J. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Vice President
CO-AGENT
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f-87578.WPD
-61-
EXHIBIT "A"
REVOLVING CREDIT NOTE
---------------------
$__________________ October 3, 1997
FOR VALUE RECEIVED, the undersigned, AMERICREDIT CORP., a Texas
corporation, AMERICREDIT FINANCIAL SERVICES, INC., a Delaware corporation,
and AMERICREDIT OPERATING CO., INC., a Delaware corporation (collectively,
the "Borrowers"), hereby jointly, severally and unconditionally promise to
pay to the order of _______________________ (the "Bank"), the principal sum
of __________________ MILLION DOLLARS ($___,000,000.00), or such lesser
aggregate amount of Advances as may be made pursuant to Bank's Commitment,
which principal shall be payable as provided in Sections 3.01, 3.02, 3.03,
3.06 and 3.07 of the Loan Agreement, together with the interest on the unpaid
principal balance of each Advance from the date made until maturity, which
interest shall be determined at the varying rates per annum, and shall be
payable as provided in Sections 2.04, 3.04, 3.05, 3.06 and 3.07 of the Loan
Agreement. Payments of both principal and interest herein shall be made to
Agent's account in lawful money of the United States of America and in
immediately available funds at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ or to
Agent's account in San Francisco, California wired as follows:
ABA No. 12100248
Account No. 4518151378
Reference: AmeriCredit Corp. --
Syndicated Credit Agreement
The Advances made by Bank to Borrowers pursuant to the Loan Agreement
and all payments of the principal thereof and interest thereon may be noted
by Bank on the Loan and Payment Transaction Schedule attached hereto, or on a
continuation of such Schedule attached hereto or similar computer generated
payment schedule; provided, however, that the failure of Bank to make any
such notation or any error in making such notation shall not limit or
otherwise affect the obligations of Borrowers hereunder or under the Loan
Agreement.
This Note has been executed and delivered pursuant to the terms of that
certain Restated Revolving Credit Agreement (the "Loan Agreement") by and
among Borrowers, the Guarantors (as defined in the Loan Agreement) and ▇▇▇▇▇
Fargo Bank (Texas), National Association, as Agent, and the Banks (as defined
in the Loan Agreement) dated as of October 3, 1997, and is a "Revolving
Credit Note" referred to therein. Reference is hereby made to the Loan
Agreement for a statement of the repayment rights and obligations of
Borrowers and for a statement of the events upon which the maturity of this
Note may be accelerated.
-1-
Each capitalized term used herein shall have the same meaning assigned
to it in the Loan Agreement, unless the context hereof otherwise requires or
provides.
Borrowers agree to pay all costs and expenses of Banks incurred in the
collection of this Note, including but not limited to court costs and
reasonable attorneys' fees and all other costs and expenses described in
Section 13.03 of the Loan Agreement.
Borrowers and each surety, endorser, guarantor and any other party now
or hereafter liable for payment of any sums of money payable on this Note,
jointly and severally waive presentment and demand for payment, protest,
notice of protest and nonpayment, notice of intent to accelerate, notice of
acceleration and all other notices, filing of suit and diligence in
collecting this Note or enforcing any security with respect to same, and
agree that their liability under this Note shall not be affected by any
renewal or extension in the time of payment hereof, or in any indulgences, or
by any release, substitution or change in any security for the payment of
this Note, and hereby consent to any and all renewals, extensions,
indulgences, releases or changes, regardless of the number of such renewals,
extensions, indulgences, releases or changes.
Regardless of any provision contained in this Note, the Loan Agreement
or any other document executed or delivered in connection therewith, neither
Bank nor any holder hereof shall be deemed to have contracted for or be
entitled to receive, collect or apply as interest (including any fee, charge
or amount which is not denominated as "interest" but is legally deemed to be
interest under applicable law) on this Note, the Loan Agreement, the Loan
Documents or otherwise, any amount in excess of the Maximum Rate, and, in the
event that Bank or any holder hereof ever receives, collects or applies as
interest any such excess, such amount which would be excessive interest shall
be applied to the reduction of the unpaid principal balance of this Note,
and, if the principal balance of this Note is paid in full, any remaining
excess shall forthwith be paid to Borrowers. In determining whether or not
the interest paid or payable under any specific contingency exceeds the
Maximum Rate, Borrowers, Bank and any other holder hereof shall, to the
maximum extent permitted under applicable law, (i) characterize any
non-principal payment (other than payments which are expressly designated as
interest payments hereunder) as an expense or fee rather than as interest,
(ii) exclude voluntary prepayments and the effect thereof, and (iii)
amortize, prorate, allocate and spread the total amount of interest
throughout the entire contemplated term of this Note so that the interest
rate is uniform throughout the entire term; provided that, if this Note is
finally paid and performed in full prior to the end of the full contemplated
term hereof, and if the interest received for the actual period of existence
thereof exceeds the Maximum Rate, Bank or any holder hereof shall refund to
Borrowers the amount of such excess, or credit the amount of such excess
against the principal amount of this Note and, in such event, neither Bank
nor any other holder shall be subject to any penalties provided by any laws
for contracting for, charging, taking, reserving or receiving interest in
excess of the Maximum Rate.
-2-
[This Note is executed in renewal and extension of that one certain
promissory note dated __________________, 199__ executed by AmeriCredit Corp.,
AmeriCredit
-3-
Financial Services, Inc. and AmeriCredit Operating Co., Inc. in the amount of
$________________ payable to the order of Bank (the "Original Note"). The
indebtedness evidenced by the Original Note is continuing indebtedness and
nothing herein shall be deemed to constitute a payment, settlement or
novation of the Original Note or to release or otherwise adversely affect any
lien, mortgage or security interest securing such indebtedness or the rights
of Bank against any guarantor, surety or any other party primarily or
secondarily liable for such indebtedness.]
This Note is being executed and delivered, and is intended to be
performed in the State of Texas. Except to the extent that the laws of the
United States may apply to the terms hereof, the substantive laws of the
State of Texas shall govern the validity, construction, enforcement and
interpretation of this Note.
AMERICREDIT CORP., a Texas corporation
By:
-----------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Vice Chairman and
Chief Financial Officer
AMERICREDIT FINANCIAL SERVICES,
INC., a Delaware corporation
By:
-----------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Vice Chairman and
Chief Financial Officer
AMERICREDIT OPERATING CO., INC.,
a Delaware corporation
By:
-----------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Vice Chairman and
Chief Financial Officer
-4-
LOAN AND PAYMENT
TRANSACTION SCHEDULE
attached to and made a part of a Note
dated October 3, 1997, executed by AmeriCredit Corp.,
AmeriCredit Financial Services, Inc. and AmeriCredit Operating Co., Inc.
Amount Unpaid Initials
Amount Amount of of Principal of Person
of Amount of Principal Interest Balance Making
Date Advance Principal Repaid Paid of Note Notation
---- ------- --------- --------- -------- --------- ----------
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-5-
EXHIBIT "B"
GUARANTY AGREEMENT
THIS GUARANTY AGREEMENT is dated as of the 3rd day of October 1997, by
AMERICREDIT PREMIUM FINANCE, INC., a Delaware corporation, and ACF INVESTMENT
CORP., a Delaware corporation (collectively, the "Guarantors"), in favor of
▇▇▇▇▇ FARGO BANK (TEXAS), NATIONAL ASSOCIATION, as agent for the benefit of
the Banks (the "Agent").
WITNESSETH:
WHEREAS, pursuant to a Restated Revolving Credit Agreement (the "Loan
Agreement") of even date herewith among AmeriCredit Corp., a Texas
corporation, AmeriCredit Financial Services, Inc., a Delaware corporation and
AmeriCredit Operating Co., Inc., a Delaware corporation (individually, a
"Borrower," and collectively, the "Borrowers"), the Guarantors, Agent and
Banks, the Banks have agreed to make Revolving Credit Loans to the Borrowers;
and
WHEREAS, it is a condition precedent to the obligation of the Banks to
make any such Revolving Credit Loans that the Guarantors guaranty repayment
thereof upon the terms and conditions set forth herein; and
WHEREAS, Guarantors desire to induce the Banks to make such Revolving
Credit Loans, which may reasonably be expected to benefit, directly or
indirectly, each Guarantor.
NOW, THEREFORE, in consideration of the foregoing and for other valuable
consideration hereby acknowledged, Guarantors agree for the benefit of Agent
and the Banks as follows:
A. DEFINITIONS.
1. DEFINITIONS. Unless otherwise defined in this Guaranty, terms used
herein shall have the meanings set forth in the Loan Agreement.
2. ADDITIONAL DEFINITIONS. In addition to the definitions set forth in
the Loan Agreement, the following terms shall have the following meanings:
"ADJUSTED NET WORTH" shall mean, with respect to any Guarantor as of the
date of determination, (a) the value of the assets of such Guarantor as of
such date, minus (b) all liabilities of such Guarantor, contingent or
otherwise, as of such date (excluding such Guarantor's liability hereunder),
as such concepts are determined in
accordance with applicable laws governing determinations of the insolvency of
debtors.
"GUARANTEED AMOUNT" shall mean, (a) the Obligations, and all renewals,
extensions, increases, modifications or rearrangements thereof, plus (b) all
costs incurred by the Agent and Banks to obtain, preserve, defend and enforce
this Guaranty and other Loan Documents, collect the Obligations, and
maintain, preserve, collect and enforce any security relating to this
Guaranty or any Guaranteed Amount, including without limitation taxes,
insurance premiums, attorneys' fees and legal expenses, and expenses of sale.
"MAXIMUM GUARANTEED AMOUNT" shall mean, with respect to any Guarantor as
of the date of determination, the greater of (a) the amount of any Guaranteed
Amount used to make a Valuable Transfer to such Guarantor, and (b) the
greater of 95% of the Guarantor's Adjusted Net Worth (i) at the date hereof
(if appropriate under applicable Law), (ii) at the time the Guaranteed Amount
was incurred, and (iii) on the date of enforcement hereof (which shall be
deemed to be the date of commencement of a proceeding described in Section
10.01(f) or Section 10.01(g) of the Loan Agreement, if applicable).
"VALUABLE TRANSFER" shall mean, with respect to any Guarantor, (a) all
loans, advances or capital contributions made to such Guarantor with proceeds
of any Guaranteed Amount, (b) the acquisition from such Guarantor or
retirement by such Guarantor with proceeds of any Guaranteed Amount of debt
securities or other obligations of such Guarantor, (c) the acquisition by
such Guarantor of all property acquired with proceeds of any Guaranteed
Amount, and transferred, absolutely and not as collateral, to such Guarantor,
to the extent of the fair market value thereof, and (d) the acquisition from
such Guarantor with proceeds of any Guaranteed Amount of equity securities of
such Guarantor.
B. GUARANTY
1. GUARANTY. Each Guarantor hereby jointly and severally guarantees
absolutely and unconditionally to Agent and the Banks the due performance of
all terms and conditions of the Loan Agreement and other Loan Documents, and
the prompt and full payment when due of the Guaranteed Amount.
Notwithstanding anything herein or in any other Loan Documents to the
contrary, the maximum liability of each Guarantor hereunder shall in no event
exceed such Guarantor's Maximum Guaranteed Amount. Each Guarantor agrees
that the Guaranteed Amount may at any time exceed the aggregate Maximum
Guaranteed Amount of all Guarantors combined, without affecting or impairing
the obligation of any Guarantor hereunder.
2. PAYMENT OBLIGATIONS. If an Event of Default shall occur, and
following any notices required under Section 10.01(a), Section 10.01(d) or
Section 10.01(e) of the Loan Agreement, each Guarantor shall, on demand, pay the
Guaranteed Amount to
-2-
Agent at its address set forth in the Loan Agreement in immediately available
funds. It shall not be necessary for Agent or the Banks, in order to enforce
such payment by any Guarantor, to institute suit or exhaust its rights and
remedies against the Borrowers, any other Guarantor or any other Person,
including others liable to pay any Guaranteed Amount, or to enforce its
rights and remedies against any security ever given to secure payment thereof.
3. COMPLETE WAIVER OF SUBROGATION. (a) Notwithstanding any payment or
payments made by any Guarantor hereunder, or any set-off or application by
the Agent or Banks of any security or of any credits or claims, no Guarantor
will assert or exercise any rights of the Banks or of such Guarantor against
the Borrowers to recover the amount of any payment made by such Guarantor to
the Banks hereunder by way of subrogation, reimbursement, contribution,
indemnity, or otherwise arising by contract or operation of law, and no
Guarantor shall have any right of recourse to or any claim against assets or
property of any Borrower, whether or not the Obligations of the Borrowers
have been satisfied, all of such rights being herein expressly waived by all
Guarantors. Each Guarantor agrees not to seek contribution from any other
Guarantor until all of the Guaranteed Amount shall have been paid in full.
If any amount shall nevertheless be paid to a Guarantor by the Borrowers or
another Guarantor, such amount shall be held in trust for the benefit of the
Banks and shall forthwith be paid to the Banks to be credited and applied to
the Guaranteed Amount, whether matured or unmatured. The provisions of this
paragraph shall survive the termination of this Guaranty, and any
satisfaction and discharge of the Borrowers by virtue of any payment, court
order or any federal or state law. (b) Notwithstanding the provisions of the
preceding clause (a), each Guarantor shall have and be entitled to (i) all
rights of subrogation otherwise provided by Law in respect of any payment it
may make or be obligated to make under this Guaranty and (ii) all claims it
would have against the Borrowers or any other Guarantor in the absence of the
preceding clause (a), and to assert and enforce same, in each case on and
after, but at no time prior to, the date (the "Subrogation Trigger Date")
which is 400 days after the date on which the Obligations have been paid in
full and the Commitment terminated, if and only if (x) no Event of Default of
the type described in Section 10.01(f) or Section 10.01(g) of the Loan
Agreement with respect to the Borrowers or any other Guarantor has existed at
any time on and after the date of this Guaranty to and including the
Subrogation Trigger Date and (y) the existence of the Guarantor's rights
under this clause (b) would not make the Guarantor a creditor (as defined in
the Bankruptcy Code) of any of Borrowers or any other Guarantor in any
insolvency, bankruptcy, reorganization or similar proceeding commenced on or
prior to the Subrogation Trigger Date.
C. TERMS OF GUARANTY
1. CONTINUING GUARANTY. Each Guarantor agrees that the Guaranteed
Amount and Loan Documents may be extended or renewed, and the Revolving
Credit Loans repaid and reborrowed in whole or in part, without notice to or
assent by such
-3-
Guarantor, and that it will remain bound upon this Guaranty notwithstanding any
extension, renewal or other alteration of any Guaranteed Amount or Loan
-4-
Documents, or any repayment and reborrowing of the Revolving Credit Loans.
Each Guarantor waives notice of acceptance of this Guaranty, presentation,
demand, protest, notice of protest for nonpayment, diligence in bringing
suits against any Person liable on any Guaranteed Amount, and any other
notices or defenses of any kind. The obligations of each Guarantor under
this Guaranty shall be absolute, unconditional and irrevocable, and shall be
performed strictly in accordance with the terms hereof under any
circumstances whatsoever, including without limitation:
(a) any extension, renewal, modification, settlement, compromise,
waiver or release in respect of any Guaranteed Amount, including any
increase, reduction or termination of the Commitment;
(b) any extension, renewal, amendment, modification, rescission,
waiver or release in respect of any Loan Documents;
(c) any release, exchange, substitution, non-perfection or invalidity
of, or failure to exercise rights with respect to, any direct or indirect
security for any Guaranteed Amount, including the release of any Guarantor
or other Person liable on any Guaranteed Amount;
(d) any change in the corporate existence, structure or ownership of
any of Borrowers or any Guarantor, or any insolvency, bankruptcy,
reorganization or other similar proceeding affecting any of Borrowers or
any Guarantor or any of their assets;
(e) the existence of any claim, defense, set-off or other rights or
remedies which any of Borrowers or any Guarantor may have at any time
against any of Borrowers, any Bank, the Agent, any other Guarantor or any
other Person, whether in connection with this Guaranty, the Loan Documents,
the transactions contemplated thereby or any other transactions;
(f) any invalidity or unenforceability for any reason of the Loan
Agreement or other Loan Documents, or any provision of Law purporting to
prohibit the payment or performance by any of Borrowers or any Guarantor of
the Guaranteed Amount or Loan Documents, or of any other obligation to the
Banks; or
(g) any other circumstances or happening whatsoever, whether or not
similar to any of the foregoing.
2. PAYMENTS WITH RESPECT TO GUARANTEED AMOUNT. Each payment on the
Guaranteed Amount shall be deemed to have been made by the Company unless
express written notice is given to the Agent at the time of such payment that
such payment is made by a specific Guarantor.
-5-
3. EFFECT OF DEBTOR RELIEF LAWS. If after receipt of any payment of,
or proceeds of any security applied (or intended to be applied) to the
payment of all or any part of the Guaranteed Amount, the Agent or any Bank is
for any reason compelled to surrender or voluntarily surrenders, such payment
or proceeds to any Person, (a) because such payment or application of
proceeds is or may be avoided, invalidated, declared fraudulent, set aside,
determined to be void or voidable as a preference, fraudulent conveyance,
impermissible set-off or a diversion of trust funds; or (b) for any other
reason, including without limitation (i) any judgment, decree or order of any
court or administrative body having jurisdiction over the Agent or any Bank
or its properties, or (ii) any settlement or compromise of any such claim
effected by any Bank with any such claimant (including either of Borrowers),
then the Guaranteed Amount or part thereof intended to be satisfied shall be
reinstated and continue and this Guaranty shall continue in full force as if
such payment or proceeds had not been received, notwithstanding any
revocation thereof or the cancellation of any Note or any other instrument
evidencing any Guaranteed Amount or otherwise; and each Guarantor shall be
liable to pay such Bank, and hereby does indemnify, jointly and severally,
such Bank and hold it harmless for, the amount of such payment or proceeds so
surrendered and all expenses (including reasonable attorneys' fees, court
costs and expenses attributable thereto) incurred by the Bank in the defense
of any claim made against it that any payment or proceeds received by the
Bank in respect of all or part of the Guaranteed Amount must be surrendered.
The provisions of this paragraph shall survive the termination of this
Guaranty, and any satisfaction and discharge of the Company by virtue of any
payment, court order or any federal or state law.
D. REPRESENTATIONS AND COVENANTS
1. REPRESENTATIONS AND WARRANTIES. Each Guarantor hereby represents
and warrants that all representations and warranties set forth in Article VII
of the Loan Agreement with respect to it are true and correct as of the date
hereof, and are incorporated herein by reference.
2. COVENANTS. Each Guarantor hereby jointly and severally expressly
assumes, confirms and agrees to perform, observe and be bound by all
conditions and covenants set forth in the Loan Agreement, to the extent
applicable to it.
E. GENERAL
1. PARTIES BOUND. This Guaranty is for the benefit of the Agent and
Banks, their respective successors and assigns, and in the event of an
assignment by any Bank of a Guaranteed Amount, the rights and benefits
hereunder, to the extent applicable to the Guaranteed Amount so assigned,
shall be automatically transferred therewith. This Guaranty is binding not
only on each Guarantor, but on each of their successors and assigns.
-6-
2. MODIFICATION AND AMENDMENT. No modification, consent, amendment or
waiver of any provision of this Guaranty, nor consent to any departure by any
Guarantor therefrom, shall be effective unless the same shall be in writing
and signed by the Agent and Majority Banks, and then shall be effective only
in the specific instance and for the purpose for which given.
3. WAIVER. No delay or omission by the Agent or Banks in exercising
any right or remedy hereunder shall impair any such right or remedy or be
construed as a waiver thereof or any acquiescence therein, nor shall any
single or partial exercise of any such right or remedy preclude other or
further exercise thereof, or the exercise of any other right or remedy
hereunder.
4. CUMULATIVE RIGHTS. If any Guarantor is or becomes liable for any
indebtedness owing by any of Borrowers to any Bank by endorsement or
otherwise than under this Guaranty, such liability shall not be in any manner
impaired or affected hereby, and the rights or remedies of the Banks
hereunder shall be cumulative of all other rights or remedies that the Banks
may ever have against the Guarantors. The exercise by the Agent or the Banks
of any rights or remedies hereunder or under any other instrument, or at law
or in equity, shall not preclude the concurrent or subsequent exercise of any
other rights or remedies. Without limitation of the foregoing, it is
specifically understood and agreed that this Guaranty is given by each
Guarantor as an additional guaranty to any and all other guaranties
heretofore or hereafter executed and delivered to any of the Banks by any
Guarantor, and nothing herein shall ever be deemed to replace or be in lieu
of any other of such previous or subsequent guaranties.
5. INTEREST; LIMITATIONS OF LAW. All agreements between each
Guarantor and the Agent and Banks, whether now existing or hereafter arising
and whether written or oral, are expressly limited so that in no contingency
or event whatsoever, whether by reason of acceleration of payment of any of
the Guaranteed Amount or otherwise, shall the amount paid or agreed to be
paid to any Bank for the use, forbearance or detention of funds advanced
pursuant to any Loan Documents or for the performance or payment of any
covenant or obligation contained in any Loan Documents exceed the maximum
amount permitted by applicable law. If from any circumstance whatsoever,
fulfillment of any provision of any Loan Documents, at the time performance
of such provision shall be due, shall involve transcending the limit of
validity prescribed by applicable law, then, IPSO FACTO, the obligation to be
fulfilled shall be reduced to the limit of such validity, and if from any
circumstance Bank shall ever receive anything of value deemed excess interest
by applicable law, an amount equal to any such excess interest shall be
applied to the reduction of the principal amount owing under the Loan
Documents, and not to the payment of interest, or if such excess interest
exceeds the unpaid principal balance, such excess interest shall be promptly
refunded to the Borrowers or Guarantor, as applicable. All sums paid or
agreed to be paid for the use, forbearance or detention of any funds advanced
pursuant to the Loan Documents shall, to the extent permitted by applicable
law, be amortized,
-7-
prorated, allocated and spread throughout the full term of this Agreement
until payment in full, so that the rate of interest on account of the
Guaranteed Amount is uniform throughout the term hereof.
6. SUBORDINATION. Each Guarantor hereby expressly agrees that any
obligation of any Borrower to any Guarantor is expressly subordinate to the
right of the Banks to payment and performance by the Borrowers of the
Guaranteed Amount and Loan Documents, and that the Banks shall be entitled to
such full payment and performance prior to the exercise by any Guarantor of
any rights, including realization upon any security, to enforce the payment
or performance of any obligation that the Borrowers may owe to any Guarantor;
provided that, Guarantors shall be entitled to receive scheduled payments
from the Borrowers with respect to such obligations if at the time of such
payment no Event of Default exists or would exist immediately after giving
effect to any such payment.
7. COSTS AND EXPENSES. Each Guarantor agrees, jointly and severally,
to pay to the Agent all costs and expenses (including court costs and
attorneys' fees) incurred by the Banks in the enforcement of this Guaranty
and all other Loan Documents.
8. NOTICES. Unless otherwise provided herein, all notices, requests,
consents and demands shall be in writing and shall be personally delivered,
sent by telecopy of telex (answerback received), or mailed, by certified
mail, postage prepaid, to the following addresses:
(a) If to the Agent and Banks:
▇▇▇▇▇ Fargo Bank (Texas), National Association
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ Fargo Bank, N.A.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Agency Department - ▇▇▇▇▇▇▇ Go
FAX No. (▇▇▇) ▇▇▇-▇▇▇▇
(b) If to any Guarantor:
[Name of Guarantor]
c/o AmeriCredit Corp.
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
-8-
Attention: Chief Financial Officer
or to such other address as any party may designate in written notice to the
other parties. All notices, requests, consents and demands hereunder will be
effective when so personally delivered or sent by telecopy of telex, or two
days after being so mailed.
9. COUNTERPARTS. This Guaranty may be executed in any number of
counterparts, all of which taken together shall constitute one and the same
instrument. In making proof of this Guaranty, it shall not be necessary to
produce or account for any counterpart other than one signed by the party
against which enforcement is sought.
10. GOVERNING LAW. This Guaranty shall be deemed a contract made in
Fort Worth, Texas, and shall be construed and governed by the laws of Texas
and the United States of America. Without excluding any other jurisdiction,
each Guarantor hereby agrees that the courts of Texas and federal courts
sitting in Texas will have jurisdiction over proceedings in connection
herewith.
11. ENTIRE AGREEMENT. THIS GUARANTY REPRESENTS THE FINAL AGREEMENT
AMONG THE PARTIES RELATING TO THE SUBJECT MATTER HEREOF AND MAY NOT BE
CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL
AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS AMONG THE
PARTIES.
IN WITNESS WHEREOF, each Guarantor has executed this Guaranty as of the
date first set forth above.
AMERICREDIT PREMIUM FINANCE, INC.,
a Delaware corporation
By:
--------------------------------
Name:
--------------------------
Title:
-------------------------
ACF INVESTMENT CORP., a Delaware
corporation
By:
--------------------------------
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Name:
--------------------------
Title:
-------------------------
EXHIBIT "C"
REQUEST FOR BORROWING -- FLOATING BASE BORROWING
------------------------------------------------
Date:
---------------
▇▇▇▇▇ Fargo Bank, N.A.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Re: Request For Floating Base Borrowing
This Request for Borrowing has been prepared and is being delivered to
Agent pursuant to Section 2.02(a) of that certain Restated Revolving Credit
Agreement ("Agreement") dated as of October 3, 1997 by and among AmeriCredit
Corp., a Texas corporation ("Company"), AmeriCredit Financial Services, Inc.,
a Delaware corporation, AmeriCredit Operating Co., Inc., a Delaware
corporation, the Guarantors, ▇▇▇▇▇ Fargo Bank (Texas), National Association,
as Agent, and "Banks." Capitalized terms shall have the meanings assigned to
them in the Agreement unless otherwise provided herein or the context hereof
otherwise requires.
/ / [For New Advances] On this date the undersigned does hereby request that
Banks make an Advance for a Floating Base Borrowing (i) in the aggregate
principal amount of $_____________ (such amount shall be in an integral
multiple of $100,000.00 unless such a Borrowing would exhaust the Total
Commitment in which case, such amount may be in an amount of the unused
portion of the Total Commitment) (ii) on ____________________, 199___.
/ / [For Rollover Notices] On this date the undersigned does hereby
request that Banks make an Advance for a Floating Base Borrowing (i) in the
aggregate principal amount of $_____________ (such amount shall be in an
integral multiple of $100,000.00 unless such a Borrowing would exhaust the
Total Commitment in which case, such amount may be in an amount of the unused
portion of the Total Commitment) (ii) on ____________________, 199___. This
Request for Borrowing shall serve as a Rollover Notice under Section 2.02(c)
of the Agreement, with respect to the Eurodollar Borrowing made on
____________, 199___ ("Prior Borrowing"). This Rollover Notice is
being submitted at least three (3) Eurodollar Business Days prior to the
Conversion Date.
The undersigned (in his representative capacity and not in his
individual capacity) hereby represents and warrants to Agent and Banks that
all of the representations and warranties contained in Article VII of the
Agreement (except Section 7.07) are true and correct in all material respects
as of the date hereof, with the same force and effect as if made on the date
hereof, and that no Event of Default or condition, event or act which with
the giving of notice or lapse of time, or both, would constitute an Event of
Default exists and is continuing on this date, unless noted below (if such a
condition, event or act is so noted, there shall also be noted below the
nature, period of existence thereof and the action which the Company is
taking or proposes to take with respect thereto):
AMERICREDIT CORP.
By:
--------------------------------
Name:
--------------------------
Title:
-------------------------
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EXHIBIT "D"
REQUEST FOR BORROWING -- EURODOLLAR BORROWING
Date:
---------------------------------
▇▇▇▇▇ Fargo Bank, N.A.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Re: Request For Eurodollar Borrowing
This Request for Borrowing has been prepared and is being delivered to
Agent pursuant to Section 2.02(a) of that certain Restated Revolving Credit
Agreement ("Agreement") dated as of October 3, 1997, by and among AmeriCredit
Corp., a Texas corporation ("Company"), AmeriCredit Financial Services, Inc.,
a Delaware corporation, AmeriCredit Operating Co., Inc., a Delaware
corporation, the Guarantors, ▇▇▇▇▇ Fargo Bank (Texas), National Association,
as Agent, and the "Banks." Capitalized terms shall have the meanings
assigned to them in the Agreement unless otherwise provided herein or the
context hereof otherwise requires. (Check applicable box below.)
/_/ [For New Advances] On this date the undersigned does hereby request that
Banks make Advances for a Eurodollar Borrowing (i) in the aggregate principal
amount of $___________ (such amount shall be in an integral multiple of
$1,000,000.00), (ii) for the following Interest Period ___________ (one (1),
two (2) or three (3) months), (iii) on ___________ , 199__ (which date shall
be at least three (3) Eurodollar Business Days after the date on which this
Request for Borrowing shall be submitted to Agent). After taking into
account the Borrowing requested hereby, the total number of unpaid Eurodollar
Borrowings under section 2.02(a) of the Agreement does not exceed five (5).
/_/ [For Rollover Notices] On this date the undersigned does hereby request
a Eurodollar Borrowing (i) in the aggregate principal amount of $____________
(such amount shall be in an integral multiple of $1,000,000.00), (ii) for the
following Interest Period ___________ (one (1), two (2) or three (3) months),
(iii) on ___________ , 199__ (which date shall be at least three (3)
Eurodollar Business Days after the date on which this Request for Borrowing
shall be submitted to Agent). After taking into account the Borrowing
requested hereby, the total number of unpaid Eurodollar Borrowings under
section 2.02(a) of the Agreement does not exceed five (5). This Request for
Borrowing shall serve as a Rollover Notice under Section 2.02(c) of the
Agreement, with respect to the Eurodollar Borrowing [Floating Base Borrowing]
made on _________________, 199__ ("Prior Borrowing"). This Rollover Notice is
being submitted at least three (3) Eurodollar Business Days (if the Prior
Borrowing was a Eurodollar Borrowing) prior to the termination of the
Interest Period for the Prior Advance.
The undersigned (in his representative capacity and not in his
individual capacity) hereby represents and warrants to Agent and Banks that
all of the representations and warranties contained in Article VII of the
Agreement (except Section 7.07) are true and correct in all material respects
as of the date hereof, with the same force and effect as if made on the date
hereof, and that no Event of Default or condition, event or act which with
the giving of notice or lapse of time, or both, would constitute an Event of
Default, exists and is continuing on this date, unless noted below (if such a
condition, event or act is so noted, there shall also be noted below the
nature, period of existence thereof and the action which the Company is
taking, or proposes to take with respect thereto):
AMERICREDIT CORP.
By:
--------------------------------
Name:
--------------------------
Title:
-------------------------
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EXHIBIT "E"
REQUEST FOR BORROWING -- SWING LINE BORROWING
Date:
-----------------------------------
▇▇▇▇▇ Fargo Bank, N.A.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Re: Request For Swing Line Borrowing
This Request For Swing Line Borrowing has been prepared and is being
delivered to Agent pursuant to Section 2.03(a) of that certain Restated
Revolving Credit Agreement ("Agreement") dated as of October 3, 1997, by and
among AmeriCredit Corp., a Texas corporation ("Company"), AmeriCredit
Financial Services, Inc., a Delaware corporation, AmeriCredit Operating Co.,
Inc., a Delaware corporation, the Guarantors, ▇▇▇▇▇ Fargo Bank (Texas),
National Association, as Agent, and the "Banks." Capitalized terms shall
have the meanings assigned to them in the Agreement unless otherwise provided
herein or the context hereof otherwise requires.
On this date the undersigned does hereby request that ▇▇▇▇▇ Fargo Bank make
an Advance for a Swing Line Borrowing (i) in the aggregate principal amount
of $__________ (such amount shall be at least $500,000 or an integral
multiple of $100,000.00), (ii) for an Interest Period of one (1) month, (iii)
on ___________ , 199__ (which shall be before 12:00 noon (Fort Worth, Texas
time) on the date on which this Request For Swing Line Borrowing shall be
submitted to Agent).
The undersigned (in his representative capacity and not in his
individual capacity) hereby represents and warrants to Agent and Banks that
all of the representations and warranties contained in Article VII of the
Agreement (except Section 7.07) are true and correct in all material respects
as of the date hereof, with the same force and effect as if made on the date
hereof, and that no Event of Default or condition, event or act which with
the giving of notice or lapse of time, or both, would constitute an Event of
Default, exists and is continuing on this date, unless noted below (if such a
condition, event or act is so noted, there shall also be noted below the
nature, period of existence thereof and the action which the Company is
taking, or proposes to take with respect thereto):
AMERICREDIT CORP.
By:
--------------------------------
Name:
--------------------------
Title:
-------------------------
EXHIBIT "F"
TO RESTATED REVOLVING CREDIT AGREEMENT
AMONG AMERICREDIT CORP., ET AL, AND
▇▇▇▇▇ FARGO BANK (TEXAS), NATIONAL ASSOCIATION, ET AL.
LITIGATION
None
EXHIBIT "G"
TO RESTATED REVOLVING CREDIT AGREEMENT
AMONG AMERICREDIT CORP., ET AL, AND
▇▇▇▇▇ FARGO BANK (TEXAS), NATIONAL ASSOCIATION, ET AL.
COMPLIANCE WITH LAW
None
EXHIBIT "H"
TO RESTATED REVOLVING CREDIT AGREEMENT
AMONG AMERICREDIT CORP., ET AL, AND
▇▇▇▇▇ FARGO BANK (TEXAS), NATIONAL ASSOCIATION, ET AL.
ENVIRONMENTAL MATTERS
None
EXHIBIT "I"
AMERICREDIT CORP., AMERICREDIT FINANCIAL SERVICES, INC.
AND AMERICREDIT OPERATING CO., INC.
BORROWING BASE CERTIFICATE
AS OF ____________________
This Borrowing Base Certificate has been prepared pursuant to Section 8.01 of
that certain Restated Revolving Credit Agreement dated as of October 3, 1997 by
and between AmeriCredit Corp., AmeriCredit Financial Services, Inc. and
AmeriCredit Operating Co., Inc. ("Borrowers"), AmeriCredit Premium Finance, Inc.
and ACF Investment Corp. ("Guarantors") and ▇▇▇▇▇ Fargo Bank (Texas), National
Association, Bank One, Texas, N.A., LaSalle National Bank, Comerica Bank-Texas,
The Sumitomo Bank, Limited, ▇▇▇▇▇▇ Trust and Savings Bank, Texas Commerce Bank
N.A., BankAmerica Business Credit, Inc., The Bank of Nova Scotia, CIBC Inc.,
Credit Lyonnais New York Branch, BankBoston, N.A., and The Long Term Credit Bank
of Japan, Limited ("Banks"). Defined terms shall have the meanings assigned to
them in the Restated Revolving Credit Agreement unless otherwise provided
herein. The undersigned does hereby certify that the following information is
true and correct, and has been prepared in accordance with the terms of the
Restated Revolving Credit Agreement.
1. Net Amount of all Finance Contracts _______________
2. Net Amount of Finance Contracts not representing
Eligible Modified Finance Contracts (Finance Contracts
applicable to more than one category are included only
in the category listed first):
(i) Not secured by an Eligible Vehicle _______________
(ii) Not representing Domestic Finance Contracts _______________
(iii) Originated by a Dealer that is an Affiliate of
Borrowers
_______________
(iv) Contractually delinquent by more than 30 days _______________
(v) Rewritten, excluding Eligible Modified Finance
contracts _______________
(vi) The related motor vehicle has been repossessed _______________
(vii) Stayed Loans _______________
-1-
(viii) Not constituting chattel paper _______________
(ix) Subject to a security interest in favor of a Person
other than Agent on behalf of Banks _______________
(x) Dealer has not received good funds from Borrowers
in respect of Finance Contract _______________
3. The sum of items i - x: _______________
4. Item 1 less item 3
= Principal outstanding on Eligible Finance Contracts _______________
5. a) Eligible Finance Contracts modified
in current month/Average principal
outstanding on Eligible Finance contracts
in current month. _____________
b) Eligible Finance Contracts modified
in prior month/Average principal
outstanding on Eligible Finance contracts
in prior month. _____________
c) Eligible Finance Contracts modified
in second prior month/Average
principal outstanding on Eligible Finance
contracts in second prior month. _____________
d) Sum of a, b and c _____________
e) (d) less 0.035 _____________
f) If (e) is positive, (e) times ending balance
of Eligible Finance Contracts in current
month; if (e) is negative, then zero (0). _____________
6. Item 4 less item 5(f)
= Net Amount of Eligible Finance Contracts _____________
7. a) Dealer Discount on Finance Contracts
originated in current month/Principal
amount of Finance Contracts originated
in current month. _____________
b) Dealer Discount on Finance Contracts
-2-
originated in prior month/Principal
amount of Finance Contracts originated
in prior month. _____________
c) Dealer Discount on Finance Contracts
originated in second prior month/Principal
amount of Finance Contracts originated
in second prior month. _____________
d) Sum of a, b and c divided by three (3) _____________
8. Item 6 Times 80% (unless item 7(d) exceeds 0.05 (5%)) _____________
If item 7(d) exceeds 5%, then reduce the advance rate
percentage by 2% for every percentage point over 5%.
9. Total Aggregate Outstanding Balance on Revolving
Line of Credit and Swing Line Loan _____________
10. Item 8 less item 9 = Availability/(Deficiency) _____________
AmeriCredit Corp., AmeriCredit Financial Services, Inc. and AmeriCredit
Operating Co., Inc.
By: __________________________
Name: __________________________
Title: __________________________
Date: __________________________
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EXHIBIT "J"
AMERICREDIT CORP., AMERICREDIT FINANCIAL SERVICES, INC.
AND AMERICREDIT OPERATING CO., INC.
COMPLIANCE CERTIFICATE
AS OF ____________________
This Certificate of Compliance has been prepared pursuant to Section 8.02 of
that certain Restated Revolving Credit Agreement dated as of October 3, 1997
by and between AmeriCredit Corp., AmeriCredit Financial Services, Inc. and
AmeriCredit Operating Co., Inc. ("Borrowers"), AmeriCredit Premium Finance,
Inc. and ACF Investment Corp. ("Guarantors") and ▇▇▇▇▇ Fargo Bank (Texas),
National Association, Bank One, Texas, N.A., LaSalle National Bank, Comerica
Bank-Texas, The Sumitomo Bank, Limited, ▇▇▇▇▇▇ Trust and Savings Bank, Texas
Commerce Bank National Association, BankAmerica Business Credit, Inc., The
Bank of Nova Scotia, CIBC Inc., Credit Lyonnais New York Branch, BankBoston,
N.A., and The Long Term Credit Bank of Japan, Limited (collectively, the
"Banks"). Defined terms shall have the meanings assigned to them in the
Restated Revolving Credit Agreement unless otherwise provided herein.
The undersigned does hereby certify that on this date all representations and
warranties of Borrowers contained in the Restated Revolving Credit Agreement
are true and correct and that all other agreements, covenants and conditions
required by the second Restated Revolving Credit Agreement have been
performed or complied with. In particular, and without limiting the
generality of the foregoing, Borrowers hereby certify the following as set
forth in Article VIII and Article IX of the Restated Revolving Credit
Agreement.
8.31 A Trigger Event has [not] occurred
9.01 Maximum Indebtedness to Net Worth Ratio _______________
N1. Indebtedness _______________
N2. Automobile Receivable Backed Notes _______________
N3. Additional Warehouse Facility _______________
N4. Net Worth _______________
Formula: (N1-N2-N3)/N4 _______________
Required: < =2.50
9.02 Minimum Interest Coverage Ratio (trailing 12 months)
N1. Net Income
N2. Interest expense _______________
N3. Income tax expense _______________
N4. Amortization of Excess Servicing Receivable _______________
-1-
N5. Gain on Sale of Receivables _______________
Formula: ((+N1..N4)-N5)/(N2) _______________
Required: > =2.2
9.03 No Net Loss
N1. Net Income (calendar quarter) _______________
Required: > =$0
9.04 Restrictions on Dividends on Capital Stock
N1. Payments of dividends and/or
purchase of capital stock _______________
Required: < = $__________ at __/__/9
9.05 Maximum Losses to Net Indirect Loans
N1. Net Credit Losses (12 months) _______________
N2. Sum of month end balances of Net Indirect
Loans for prior 13 months/13 _______________
Formula: N1/N2 _______________
Required: < =10.0%
9.06 Maximum Delinquent and Repossessed Loans to
Net Indirect Loans
N1. Net Amount of Delinquent Loans _______________
N2. Net Amount of Repossessed Loans _______________
N3. Net Indirect Loans _______________
Formula: N1+N2/N3
Required: < =7.5%
AmeriCredit Corp., AmeriCredit Financial Services, Inc. and AmeriCredit
Operating Co., Inc.
By: __________________________
Name: __________________________
Title: __________________________
Date: __________________________
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EXHIBIT "K"
ASSIGNMENT AND ACCEPTANCE
Dated: ______________, 19_____
Reference is made to the Restated Revolving Credit Agreement dated as of
October 3, 1997 (as amended from time to time, the "LOAN AGREEMENT") among
AMERICREDIT CORP., a Texas corporation, and AMERICREDIT FINANCIAL SERVICES,
INC., a Delaware corporation, and AMERICREDIT OPERATING CO., INC., a Delaware
corporation (collectively the "Borrowers"), the Guarantors named therein, the
Banks named therein, and ▇▇▇▇▇ FARGO BANK (TEXAS), NATIONAL ASSOCIATION, as
Agent. Capitalized terms not otherwise defined herein shall have the
meanings specified in the Loan Agreement.
________________________, acting as one of the Banks referred to in the
Loan Agreement (the "ASSIGNOR"), and _______________ (the "ASSIGNEE") agree
as follows:
1. The Assignor, without recourse, representation or warranty of any kind
except as expressly set out herein, hereby sells and assigns to the Assignee,
and the Assignee hereby purchases and assumes from the Assignor, that interest
in and to a portion of the Assignor's rights and obligations as of the date
hereof under the Loan Agreement and the other Loan Documents sufficient to give
the Assignee the percentage interest specified in SECTION 1 of SCHEDULE 1 hereto
of all outstanding rights and obligations under the Loan Agreement and the other
Loan Documents. Such sale and assignment shall [include] [exclude] a
proportionate share of the loan origination fee previously paid to Assignor
pursuant to Section 2.01(d) of the Loan Agreement, [THE AMOUNTS OF SUCH
PROPORTIONATE SHARES BEING SPECIFIED IN SECTION 2 OF SCHEDULE 1 HERETO]. After
giving effect to such sale and assignment, the respective Commitments of and
amounts of the Loans owing to the Assignor and the Assignee will be as set forth
in SECTION 3 of SCHEDULE 1 hereto.
2. The Assignor (i) represents and warrants that it (a) is the legal and
beneficial owner of the interest being assigned by it hereunder and that such
interest is free and clear of any adverse claim and (b) to its knowledge (1)
there exists no Event of Default, or event which with the giving of notice or
the passage of time or both, would constitute and Event of Default and (2) it
has not waived any material provision of any Loan Document; (ii) makes no
representation or warranty and assumes no responsibility with respect to any
statements, warranties or representations made by another Person in or in
connection with the Loan Documents or the execution, legality, validity,
enforceability, genuineness, sufficiency or value of the Loan Documents or any
other instrument or document furnished pursuant thereto or the value of any
collateral provided with respect thereto or the perfection of any security
interest provided in such collateral; (iii) makes no representation or warranty
and assumes no responsibility with respect to the financial condition of the
Borrowers, the Guarantors, or any other
Person or the performance or observance by the Borrowers, the Guarantors, or
any other Person of any of its obligations under the Loan Documents or any
other instrument or document furnished pursuant thereto; and (iv) will
deliver the Note issued to it pursuant to the Credit Agreement to the Agent
concurrently with the presentation hereof to the Agent for acceptance and
requests that, upon receipt of such Note, the Agent shall exchange such Note
for a new Note [NEW NOTES] payable to the order of the Assignee in an amount
equal to the Commitment assumed by the Assignee pursuant hereto
[AND THE ASSIGNOR IN AN AMOUNT EQUAL TO THE COMMITMENT RETAINED BY THE
ASSIGNOR UNDER THE LOAN AGREEMENT, RESPECTIVELY] as specified in SECTION 4
of SCHEDULE 1 hereto.
3. The Assignee (i) confirms that it has received a copy of the Loan
Agreement and the other Loan Documents, together with copies of the financial
statements referred to in Section 7.07 thereof and such other documents and
information as it has deemed appropriate to make its own credit analysis and
decision to enter into this Assignment and Acceptance; (ii) agrees that it will,
independently and without reliance upon the Assignor or any other of the Banks
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 the Loan Agreement; (iii) confirms that it is an Eligible Assignee; (iv)
appoints and authorizes the Agent to take such action on its behalf and to
exercise such powers under the Loan Agreement and the other Loan Documents as
are delegated to such Person by the terms thereof, together with such powers as
are reasonably incidental thereto; (v) agrees that it will perform in accordance
with their terms all of the obligations which by the terms of the Loan Agreement
and the other Loan Documents are required to be performed by it as a Bank; and
(vi) specifies as its domestic lending office (and address for notices) and
Eurodollar lending office the offices set forth in SECTION 5 of SCHEDULE 1
hereto; and (vii) represents that it is either (y) a corporation organized under
the laws of the United States, a state thereof or the District of Columbia or
(z) presently entitled to complete exemption from United States withholding tax
imposed on or with respect to any payments, including fees, to be made to it
pursuant to the Loan Agreement (A) under an applicable provision of a tax
convention or treaty to which the United States is a party or (B) because it is
acting through a branch, agency or office in the United States and any payment
to be received by it under the Loan Agreement is effectively connected with a
trade or business in the United States.
4. Following the execution of this Assignment and Acceptance by the
Assignor and the Assignee, it will be delivered to the Agent for the approval of
[THE BORROWERS the Agent and acceptance by the Agent, and the effective date of
this Assignment and Acceptance (the "EFFECTIVE DATE") shall be the date on which
such approval and acceptance has occurred.
5. Upon the Effective Date, (i) the Assignee shall be a party to the Loan
Agreement and, to the extent provided in this Assignment and Acceptance, have
the rights and obligations of a Bank thereunder and (ii) the Assignor shall, to
the extent
-2-
provided in this Assignment and Acceptance, relinquish its rights and be
released from its obligations under the Loan Agreement.
6. From and after the Effective Date, the Agent shall make all payments
under the Loan Agreement and the other Loan Documents in respect of the interest
assigned hereby (including, without limitation, all payments of principal,
interest and commitment fees with respect thereto) to the Assignee. The
Assignor and Assignee shall make all appropriate adjustments in payments and
fundings under the Loan Agreement and the other Loan Documents for periods prior
to the Effective Date directly between themselves.
7. This Assignment and Acceptance shall be governed by, and construed in
accordance with, the laws of the State of Texas (without giving effect to the
conflict of law principles thereof) and applicable federal law. This Assignment
and Acceptance may be executed in any number of counterparts and by different
parties hereto in separate counterparts, each of which when so executed and
delivered shall be deemed to be an original and all of which taken together
shall constitute but one and the same instrument. This Assignment and
Acceptance shall be binding upon and inure to the benefit of the Assignor and
the Assignee and their respective successors and assigns.
IN WITNESS WHEREOF, the parties hereto have caused this Assignment and
Acceptance to be executed by their respective officers thereunto duly authorized
effective as of the date first above written.
ATTACHMENTS: ASSIGNOR:
Schedule 1
--------------------------------------------
By:
----------------------------------------
Name:
--------------------------------------
Title:
--------------------------------------
ASSIGNEE:
--------------------------------------------
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
-3-
Approved this ____ day of _____________________, 199__.
AMERICREDIT CORP.
By:
-----------------------------------------
Name:
-----------------------------------
Title:
---------------------------------
AMERICREDIT FINANCIAL SERVICES, INC.
By:
----------------------------------------
Name:
-----------------------------------
Title:
-----------------------------------
AMERICREDIT OPERATING CO., INC.
By:
----------------------------------------
Name:
-----------------------------------
Title:
------------------------------------
▇▇▇▇▇ FARGO BANK (TEXAS), NATIONAL
ASSOCIATION as Agent
By:
----------------------------------------
Name:
-----------------------------------
Title:
------------------------------------
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SCHEDULE
TO
ASSIGNMENT AND ACCEPTANCE
DATED _____________, 199____.
SECTION 1.
Percentage Interest acquired by Assignee
relative to all Banks ---------------------
SECTION 2.
1. Assignee's proportionate share of loan
origination fee previously paid to Assignor
pursuant to Section 2.01(d) of the Loan Agreement: $
-------------
SECTION 3.
1. Assignee's Acquired Interest.
Assignee's Commitment: $
----------------------
Aggregate outstanding principal
amount of Loans owing to the Assignee: $
----------------------
2. Assignor's Retained Interest.
Assignor's Commitment: $
----------------------
Aggregate outstanding principal
amount of Loans owing to the Assignor: $
----------------------
SECTION 4.
1. A Note payable to the order of the Assignee in the principal amount of
$________.
2. A Note payable to the order of the Assignor in the principal amount of
$______.
-5-
SECTION 5.
DOMESTIC LENDING OFFICE EURODOLLAR LENDING OFFICE
----------------------------- --------------------------------------
----------------------------- --------------------------------------
----------------------------- --------------------------------------
----------------------------- --------------------------------------
----------------------------- --------------------------------------
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