Exhibit 10.13.4
FOURTH AMENDMENT TO
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RESTATED REVOLVING CREDIT AGREEMENT
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This Fourth Amendment To Restated Revolving Credit Agreement (this "Fourth
Amendment") is made by and among AMERICREDIT CORP., a Texas corporation
("Company"), AMERICREDIT FINANCIAL SERVICES, INC., a Delaware corporation,
AMERICREDIT CORPORATION OF CALIFORNIA, a California corporation, (individually,
a "Borrower" and collectively, the "Borrowers"), ACF INVESTMENT CORP., a
Delaware corporation, AMERICREDIT MANAGEMENT COMPANY, a Delaware corporation
(individually a "Guarantor", and collectively, the "Guarantors"), and XXXXX
FARGO BANK (TEXAS), NATIONAL ASSOCIATION, LASALLE NATIONAL BANK, BANK OF
AMERICA, COMERICA BANK-TEXAS and THE LONG-TERM CREDIT BANK OF JAPAN LIMITED
(collectively, the "Banks"), XXXXX FARGO BANK (TEXAS), NATIONAL ASSOCIATION, as
agent for the Banks ("Agent") and LASALLE NATIONAL BANK ("Co-Agent").
WHEREAS, on October 3, 1997, the parties entered into that one certain
Restated Revolving Credit Agreement (the "Credit Agreement") providing for a
revolving credit facility to Borrowers in the maximum amount of $310,000,000 at
any one time outstanding; and
WHEREAS, the parties entered into a First Amendment To Restated Revolving
Credit Agreement dated January 21, 1998 (the "First Amendment"); and
WHEREAS, the parties entered into a Second Amendment To Restated Revolving
Credit Agreement dated April 30, 1998 (the "Second Amendment"); and
WHEREAS, the parties entered into a Third Amendment To Restated Revolving
Credit Agreement dated August 31, 1998 (the "Third Amendment"); and
WHEREAS, the parties have agreed to amend the Credit Agreement in certain
respects.
NOW THEREFORE, for good and valuable consideration, the receipt and total
sufficiency of which is hereby acknowledged, it is agreed by and among the
parties as follows:
1.
The definitions of "Borrowers", "Delinquent Loans", "Eligible Finance
Contract", "Finance Contract", "Guarantors", Intercreditor Agreement", "Mortgage
Subsidiary", "Net Credit Losses", "Permitted Liens", "Senior Notes" and
"Termination Date" in Article I of the Credit Agreement are amended to read in
their entirety as follows:
"Borrowers" shall mean AmeriCredit Corp., a Texas corporation,
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AmeriCredit Financial Services, Inc., a Delaware corporation, and
AmeriCredit Corporation of California, a California corporation.
"Delinquent Loans"shall mean Net Indirect Loans having five percent
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(5.0%) or more of an installment payment which is more than 60 days past
due (without regard to any grace period) on a contractual basis except Net
Indirect Loans and Net Direct Loans which were secured by a motor vehicle
that has been repossessed.
"Eligible Finance Contract" shall mean a Finance Contract,
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(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 is a Direct Loan or an Indirect Loan unless otherwise
consented to in writing by the Agent (which consent shall not be
unreasonably withheld),
(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 good funds have been received from Borrower
in payment of the Finance Contract; and
(xi) in respect of which the representations and warranties set
forth in the Security Agreement are true.
"Finance Contract" shall mean a motor vehicle installment sales
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contract or promissory note assigned to or originated by 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.
"Guarantors" shall mean AmeriCredit Management Company, a Delaware
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corporation, ACF Investment Corp., a Delaware corporation, and any other
corporation which executes a Guaranty Agreement after the date of this Loan
Agreement.
"Intercreditor Agreement" shall mean that one certain Intercreditor
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Agreement dated October 3, 1997 by and among Chase Manhattan Bank, Xxxxx
Fargo Bank (Texas), National Association, CP Funding Corp. and AmeriCredit
Financial Services, Inc. and that one certain Intercreditor Agreement by
and among Credit Suisse First Boston, New York Branch, Xxxxx Fargo Bank
(Texas), National Association and AmeriCredit Warehouse Trust.
"Mortgage Subsidiary" shall mean AmeriCredit Corporation of California
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and any other subsidiary of Company (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 Credit Losses" shall mean, for any period, the actual aggregate
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amount of principal of Indirect Loans and Direct Loans charged off prior to
the application of the Dealer Discount or reserves during such period less
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the aggregate amount of Recoveries on Indirect Loans and Direct Loans
during such period.
"Permitted Liens" shall mean: (i) Liens on equipment and fixed
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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 the provider of a
warehouse credit facility to AmeriCredit Corporation of California in an
amount not to exceed three percent (3.0%) of the amount of such credit
facility; (ix) Liens on Credit Enhancement Assets in Securitization; and
(x) Liens on property or assets of a Non-Domestic Subsidiary.
"Senior Notes" shall mean (i) the $125,000,000 of senior unsecured
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notes of the Company due 2004 and all Guarantees thereof by the other
Borrowers, Guarantors and the Mortgage Subsidiary issued pursuant to an
Indenture dated as of February 4, 1997 between the Company and the trustee
named therein, (ii) those senior unsecured notes of Company due 2004 and
all Guarantees thereof by the other Borrowers, Guarantors and the Mortgage
Subsidiary to be sold pursuant to a Preliminary Offering Memorandum dated
January 21, 1998 and issued or to be issued pursuant to an Indenture
between the Company and the trustee named therein, (iii) 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 any of such senior unsecured notes, and (iv) any new
issue of debt securities that is unsecured and is equal in priority of
payment to the aforementioned notes; or
"Termination Date" shall mean March 30, 2000.
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1.
The following new definitions of "Direct Loan" and "Net Direct Loan" are
added to Article I of the Credit Agreement:
"Direct Loan" shall mean any Finance Contract or promissory note
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received for or in connection with a loan made directly to an Obligor by a
Borrower with respect to the sale or refinancing of a motor vehicle.
"Net Direct Loan" shall mean the aggregate amount of all Direct Loans
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less the amount of unearned finance charges relating to such Direct Loans.
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1.
Section 2.01(a) of the Credit Agreement is amended to read in its entirety
as follows:
2.01. Revolving Credit Commitment.
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(a) Revolving Loan Commitments. Subject to the terms and conditions
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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)
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Xxxxx Fargo Bank (Texas), $35,000,000 30.434782608%
National Association
LaSalle National Bank $25,000,000 21.739130435%
Bank of America $25,000,000 21.739130435%
Comerica Bank-Texas $15,000,000 13.043478261%
The Long-Term Credit Bank of $15,000,000 13.043478261%
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Japan, Limited
$115,000,000 100.00000000000%
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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
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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 one hundred fifteen million dollars
($115,000,000).
1.
Section 7.12 of the Credit Agreement is amended to read as follows:
7.12. Use of Proceeds; Margin Stock. The proceeds of the Revolving
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Credit Loans will be used by the Borrowers and the Guarantors solely for
acquiring Finance Contracts and general corporate purposes of AmeriCredit
Corp. and AmeriCredit Financial Services, Inc.. None of such proceeds will
be used for the purpose of purchasing or carrying any "margin stock" as
defined in Regulation U or G of the Board of Governors of the Federal
Reserve System (12 C.F.R. Part 221 and 207), or for the purpose of reducing
or retiring any indebtedness which was originally 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.
1.
Section 7.20 of the Credit Agreement is amended to read as follows:
7.20. Subsidiaries. Company directly owns all of the capital stock of
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AmeriCredit Financial Services, Inc., AmeriCredit Operating Co., Inc.,
AmeriCredit Corporation of California, AmeriCredit Management Company and
ACF Investment Corp., in each case free and clear from all liens, security
interests, charges and encumbrances.
1.
Sections 9.05 and 9.06 of the Credit Agreement are amended to read as
follows:
9.05. Losses to Net Loans. Permit the ratio of Net Credit Losses
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during the prior 12 months to the sum of month end balances of Net Indirect
Loans and Net Direct Loans over the prior 13 months divided by 13 to be
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greater than .10 to 1.0 at any time; or
9.06. Delinquent and Repossessed Loans to Net Loans. Permit the ratio
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of the sum of Delinquent Loans and Repossessed Loans to the sum of Net
Indirect Loans and Net Direct Loans to be greater than .075 to 1.0 at any
time; or
1.
A new section 12.13 is added to the Credit Agreement which shall read as
follows:
12.13 Co-Agent. It is expressly understood and agreed that LaSalle
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National Bank shall have no responsibility or obligations as a co-agent
hereunder other than its obligations as a Bank under this Loan Agreement.
1.
Except as amended above and by the First Amendment, the Second Amendment
and the Third Amendment, the Credit Agreement is ratified and confirmed and
shall remain in full force and effect.
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1.
At the time of execution of this Fourth Amendment, Borrowers agree to pay
to Agent, for the pro rata benefit of Banks, a fee in the amount of $86,250.00.
1.
The effectiveness of this Fourth Amendment shall be contingent upon the
receipt by Agent of each of the following:
(a) The fee described in section 9 above;
(b) audited financial statements of Borrowers for the year ended June 30,
1998;
(c) Form 10Q of Borrowers for the period ended December 31, 1998;
(d) a collateral audit satisfactory to Agent; and
(e) all representations and warranties in Article VII of the Credit
Agreement shall be true and correct.
1.
Borrowers agree to pay all costs and expenses incurred by Banks in
connection with this Fourth Amendment (including all attorney's fees and the
cost of the collateral audit).
1.
This Fourth Amendment may be executed in multiple counterparts, each of
which shall constitute an original.
1.
This Fourth Amendment shall be binding upon and inure to the benefit of the
parties and their respective successors and assigns.
1.
THIS WRITTEN AGREEMENT REPRESENTS THE FINAL AGREEMENT AMONG THE PARTIES
RELATING TO THE SUBJECT MATTER HEREOF AND MAY NOT BE CONTRADICTED BY EVIDENCE OF
PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE
NO UNWRITTEN ORAL AGREEMENTS AMONG THE PARTIES.
Executed to be effective as of April 1, 1999.
AMERICREDIT CORP., a Texas corporation
By: /s/ Xxxxxxx Xxxxxx
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Xxxxxxx Xxxxxx, Executive Vice President
AMERICREDIT FINANCIAL SERVICES,
INC., a Delaware corporation
By: /s/ Xxxxxxx Xxxxxx
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Xxxxxxx Xxxxxx, Executive Vice President
AMERICREDIT CORPORATION OF CALIFORNIA,
a California corporation
By: /s/ Xxxxxxx Xxxxxx
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Xxxxxxx Xxxxxx, Executive Vice President
BORROWERS
AMERICREDIT MANAGEMENT COMPANY,
INC., a Delaware corporation
By: /s/ Xxxxxxx Xxxxxx
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Xxxxxxx Xxxxxx, Executive Vice President
ACF INVESTMENT CORP., a Delaware
corporation
By: /s/ Xxxxxxx Xxxxxx
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Xxxxxxx Xxxxxx, Executive Vice President
GUARANTOR
XXXXX FARGO BANK (TEXAS), NATIONAL
ASSOCIATION
By: /s/ Xxxxx X. Xxxxxxxxx
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Xxxxx X. Xxxxxxxxx, Vice President
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LASALLE NATIONAL BANK
By: /s/
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Xxxx Xxx, Assistant Vice President
BANK OF AMERICA
By: /s/
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Xxxxx Xxxxxxxx, Vice President
COMERICA BANK-TEXAS
By: /s/
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Xx Xxxxxxxx, Assistant Vice President
THE LONG-TERM CREDIT BANK OF
JAPAN, LIMITED
By: /s/
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Name:
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Title:
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BANKS
XXXXX FARGO BANK (TEXAS), NATIONAL
ASSOCIATION
By: /s/
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Xxxxx X. Xxxxxxxxx, Vice President
AGENT
LASALLE NATIONAL BANK
By: /s/
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Xxxx Xxx, Assistant Vice President
CO-AGENT
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