1
NINTH AMENDMENT TO CREDIT AGREEMENT
THIS NINTH AMENDMENT TO CREDIT AGREEMENT (this "Amendment") is entered
into as of October 10, 1996, by and between CENTRAL CONSUMER FINANCE COMPANY, a
Delaware corporation ("Borrower"), and XXXXX FARGO BANK, NATIONAL ASSOCIATION
("Bank").
RECITALS
WHEREAS, Borrower is currently indebted to Bank pursuant to the terms
and conditions of that certain Credit Agreement between Borrower and Bank dated
as of December 14, 1993, as amended from time to time ("Credit Agreement");
WHEREAS, Bank and Borrower have agreed to certain changes in the terms
and conditions set forth in the Credit Agreement and the promissory note
executed in connection therewith and have agreed to amend the Credit Agreement
and such promissory note to reflect said changes;
NOW, THEREFORE, for valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties hereto agree that the Credit
Agreement shall be amended as follows:
A. SUBJECT TO THE SATISFACTION OF EACH OF THE CONDITIONS PRECEDENT SET
FORTH IN SECTION B OF THIS AMENDMENT, THE CREDIT AGREEMENT IS HEREBY AMENDED
AS FOLLOWS:
1. Section 1.1(a) is hereby amended by deleting "THIRTY MILLION
DOLLARS ($30,000,000.00)" and by substituting for said amount "FIFTY MILLION
DOLLARS ($50,000,000.00)."
2. SECTION 1.1(a) is hereby amended by deleting "December 31, 1996" as
the last day on which Bank will make advances under the Line of Credit, and by
substituting for said date "April 30, 1997".
3. The definition of "Eligible Auto Contracts Receivable" in Section
1.1(a) is hereby amended by deleting the exclusion in paragraph "(vii)" and
substituting therefor the following:
(vii) any Auto Contract with an original term or an original
principal amortization schedule in excess of forty-two (42) months."
-1-
2
4. The following new subsection 1.1(d) is incorporated into and
made a part of the Credit Agreement:
(d) Letter of Credit Subfeature.
(i) As a subfeature under the Line of Credit, Bank
agrees from time to time up to and including the April 30, 1997 to
issue commercial and standby letters of credit for the account of
Borrower (each, a "Letter of Credit" and collectively, "Letters of
Credit"); provided, however, that the form and substance of each Letter
of Credit shall be subject to approval by Bank, in its sole discretion,
and provided further, that the aggregate undrawn amount of all
outstanding Letters of Credit under this subfeature shall not at any
time exceed Three Million Dollars ($3,000,000.00). Each Letter of
Credit shall be issued for a term not to exceed three hundred
sixty-five (365) days, as designated by Borrower; provided, however,
that no Letter of Credit under this subfeature shall have an expiration
date subsequent to December 31, 1997 unless otherwise approved by Bank.
(ii) The undrawn amount of all Letters of Credit under
this subfeature shall be reserved under the Line of Credit and shall
not be available for advances thereunder. Each Letter of Credit shall
be subject to the additional terms and conditions of the Letter of
Credit Agreement and related documents, if any, required by Bank in
connection with the issuance of such Letter of Credit (each
individually, a "Letter of Credit Agreement" and collectively, "Letter
of Credit Agreements"). Each draft paid by Bank under a Letter of
Credit under this subfeature shall be deemed an advance under the Line
of Credit and shall be repaid in accordance with the terms and
conditions of this Agreement applicable to such advances; provided,
however, that if the Line of Credit is not available, for any reason
whatsoever, at the time any draft is paid by Bank, or if advances are
not available under the Line of Credit at such time due to any
limitation on borrowings set forth herein, then the full amount of such
draft shall be immediately due and payable, together with interest
thereon, from the date such amount is paid by Bank to the date such
amount is fully repaid by Borrower at the rate of interest applicable
to advances under the Line of Credit. In such event Borrower agrees
that Bank, in its sole discretion, may debit any demand deposit account
maintained by Borrower with Bank for the amount of any draft.
(iii) Notwithstanding anything contained herein to the
contrary, upon the date of termination of the Line of Credit (whether
voluntarily or involuntarily, by acceleration or otherwise), Borrower
shall furnish cash collateral to Bank in such amounts as Bank
determines are reasonably necessary to secure Bank from loss, cost,
damage, or exposure, including reasonable attorneys' fees and legal
expenses, in connection with any and all issued and outstanding
Letters
-2-
3
of Credit and other contingent obligations, such cash collateral to be
of a value and character satisfactory to Bank in its sole discretion.
5. The following new subsection 1.2(d) is incorporated into and
made a part of the Credit Agreement:
(d) Letter of Credit Fees. Borrower shall pay to Bank fees
upon the issuance of each Letter of Credit, upon the payment or
negotiation by Bank of each draft under any Letter of Credit and upon
the occurrence of any other activity with respect to any Letter of
Credit (including the transfer, amendment or cancellation of any Letter
of Credit) determined in accordance with Bank's standard fees and
charges then in effect for such activity.
6. Section 4.9(a) is hereby amended by deleting the period at the
end thereof, and inserting thereat the following:
"up to (but not including) September 30, 1996, and not less
than $24,000,000.00 at any time on or after September 30, 1996."
B. CONDITIONS PRECEDENT.
It is a condition precedent to all of the accommodations granted
Borrower by Bank hereunder that each of the following conditions be satisfied on
or before October __, 1996, and all of such accommodations shall be effective
only upon satisfaction in full of each such condition.
(a) This Amendment shall be executed by Borrower and delivered to
Bank.
(b) Borrower shall execute and deliver to Bank a promissory note in
substantially the form of Exhibit A attached hereto (which promissory note shall
replace and be deemed the Line of Credit Note defined in and made pursuant to
the Credit Agreement).
(c) In connection with the Letter of Credit subfeature made a part
of the Credit Agreement as set forth above, Borrower shall execute and deliver
to Bank a Letter of Credit Agreement, Facsimile Letter Agreement, Indemnity
Agreement and such other related documents as Bank may require, in each case in
form and substance satisfactory to Bank.
(d) Borrower shall pay to Bank the fee for the accommodations
granted hereunder in accordance with Paragraph 1 of Section C below.
-3-
4
(f) Borrower shall reimburse Bank for all of its costs and expenses
(including, without limitation, attorneys fees of Bank's inside and outside
counsel) incurred in connection with the preparation, negotiation and
implementation of this Amendment.
C. MISCELLANEOUS.
1. Borrower shall pay to Bank a non-refundable commitment fee for
the renewal of, and increase in, the Line of Credit and the other
accommodations granted Borrower hereunder, equal to $25,000.00, which
commitment fee shall be due and payable on the date this Amendment is executed
by Borrower and delivered to Bank.
2. The parties hereto acknowledge that notwithstanding the fact
that Bank may, for reasons of administrative convenience, decide not to take
possession of the original of each promissory note which evidences all or any
portion of any Eligible Contract Receivables, Bank reserves its right to do so
at any time hereafter; if Bank requests hereafter; if Bank requests hereafter,
Borrower shall immediately deliver such promissory notes to Bank (if Bank
requests, indorsed to the order of Bank); and such promissory notes remain
subject to Bank's security interest and Borrower is obligated to place a legend
thereon in accordance with the Credit Agreement.
3. Except as specifically provided herein, all terms and
conditions of the Credit Agreement remain in full force and effect, without
waiver or modification. Except as specifically defined herein, all terms
defined in the Credit Agreement shall have the same meaning when used in this
Amendment. This Amendment and the Credit Agreement shall be read together, as
one document.
4. Borrower hereby remakes all representations and warranties
contained in the Credit Agreement (including as amended hereby) and reaffirms
all covenants set forth therein as same may be modified hereby. Borrower
further certifies that as of the date of this Amendment there exists no Event
of Default as defined in the Credit Agreement, nor any
-4-
5
condition, act or event which with the giving of notice or the passage of time
or both would constitute any such event of Default.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed as of the day and year first written above.
CENTRAL CONSUMER FINANCE XXXXX FARGO BANK,
COMPANY NATIONAL ASSOCIATION
By: /s/ Xxxx Xxxxxx By: /s/ Xxxxx Xxxxxx
---------------------------- -----------------------------
Xxxxx Xxxxxx
Title: Vice President
-------------------------
-5-
6
REVOLVING LINE OF CREDIT NOTE
$50,000,000.00 Los Angeles, California
October 10, 1996
FOR VALUE RECEIVED, the undersigned CENTRAL CONSUMER FINANCE COMPANY
("Borrower"), promises to pay to the order of XXXXX FARGO BANK, NATIONAL
ASSOCIATION ("Bank") at its office at Los Angeles RCBO, 000 Xxxxx Xxxxx Xxxxxx,
0xx Xxxxx, Xxx Xxxxxxx, Xxxxxxxxxx 00000, or at such other place as the holder
hereof may designate, in lawful money of the United States of America and in
immediately available funds, the principal sum of FIFTY MILLION DOLLARS
($50,000,000.00), or so much thereof as may be advanced and be outstanding,
with interest thereon, to be computed on each advance from the date of its
disbursement as set forth herein.
DEFINITIONS:
As used herein, the following terms shall have the meanings set forth
after each, and any other term defined in this Note shall have the meaning set
forth at the place defined:
(a) "Business Day" means any day except a Saturday, Sunday or any
other day on which commercial banks in California are authorized or required by
law to close.
(b) "Fixed Rate Term" means a period commencing on a Business Day
and continuing for one (1), two (2) or three (3) months, as designated by
Borrower, during which all or a portion of the outstanding principal balance of
this Note bears interest determined in relation to LIBOR; provided however,
that no Fixed Rate Term may be selected for a principal amount less than Five
Hundred Thousand Dollars ($500,000.00); and provided further, that no Fixed
Rate Term shall extend beyond the scheduled maturity date hereof. If any Fixed
Rate Term would end on a day which is not a Business Day, then such Fixed Rate
Term shall be extended to the next succeeding Business Day.
(c) "LIBOR" means the rate per annum (rounded upward, if necessary,
to the nearest whole 1/8 of 1%) and determined pursuant to the following
formula:
LIBOR = BASE LIBOR
-------------------------------
100% - LIBOR Reserve Percentage
-1-
7
(i) "Base LIBOR" means the rate per annum for United States
dollar deposits quoted by Bank as the Inter-Bank Market Offered Rate, with the
understanding that such rate is quoted by Bank for the purpose of calculating
effective rates of interest for loans making reference thereto, on the first
day of a Fixed Rate Term for delivery of funds on said date for a period of
time approximately equal to the number of days in such Fixed Rate Term and in
an amount approximately equal to the principal amount to which such Fixed Rate
Term applies. Borrower understands and agrees that Bank may base its quotation
of the Inter-Bank Market Offered Rate upon such offers or other market
indicators of the Inter-Bank Market as Bank in its discretion deems appropriate
including, but not limited to, the rate offered for U.S. dollar deposits on the
London Inter-Bank Market.
(ii) "LIBOR Reserve Percentage" means the reserve percentage
prescribed by the Board of Governors of the Federal Reserve System (or any
successor) for "Eurocurrency Liabilities" (as defined in Regulation D of the
Federal Reserve Board, as amended), adjusted by Bank for expected changes in
such reserve percentage during the applicable Fixed Rate Term.
(d) "Prime Rate" means at any time the rate of interest most recently
announced within Bank at its principal office as its Prime Rate, with the
understanding that the Prime Rate is one of Bank's 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 Bank may
designate.
INTEREST:
(a) Interest. The outstanding principal balance of this Note shall
bear interest (computed on the basis of a 360-day year, actual days elapsed)
either (i) at a fluctuating rate per annum equal to the Prime Rate in effect
from time to time, or (ii) at a fixed rate per annum determined by Bank to be
two and one-quarter percent (2.25%) above LIBOR in effect on the first day of
the applicable Fixed Rate Term. When interest is determined in relation to the
Prime Rate, each change in the rate of interest hereunder shall become
effective on the date each Prime Rate change is announced within Bank. With
respect to each LIBOR selection hereunder, Bank is hereby authorized to note
the date, principal amount, interest rate and Fixed Rate Term applicable
thereto and any payments made thereon on Bank's books and records (either
manually or by electronic entry) and/or on any schedule attached to this Note,
which notations shall be prima facie evidence of the accuracy of the
information noted.
-2-
8
(b) Selection of Interest Rate Options. At any time any portion of
this Note bears interest determined in relation to LIBOR, it may be continued
by Borrower at the end of the Fixed Rate Term applicable thereto so that all or
a portion thereof bears interest determined in relation to the Prime Rate or to
LIBOR for a new Fixed Rate Term designated by Borrower. At any time any portion
of this Note bears interest determined in relation to the Prime Rate, Borrower
may convert all or a portion thereof so that it bears interest determined in
relation to LIBOR for a Fixed Rate Term designated by Borrower. At such time as
Borrower requests an advance hereunder or wishes to select a LIBOR option for
all or a portion of the outstanding principal balance hereof, and at the end of
each Fixed Rate Term, Borrower shall give Bank notice specifying: (i) the
interest rate option selected by Borrower; (ii) the principal amount subject
thereto; and (iii) for each LIBOR selection, the length of the applicable Fixed
Rate Term. Any such notice may be given by telephone so long as, with respect
to each LIBOR selection, (A) Bank receives written confirmation from Borrower
not later than three (3) Business Days after such telephone notice is given,
and (B) such notice is given to Bank prior to 10:00 a.m., California time, on
the first day of the Fixed Rate Term. For each LIBOR option requested
hereunder, Bank will quote the applicable fixed rate to Borrower at
approximately 10:00 a.m., California time, on the first day of the Fixed Rate
Term. If Borrower does not immediately accept the rate quoted by Bank, any
subsequent acceptance by Borrower shall be subject to a redetermination by Bank
of the applicable fixed rate; provided however, that if Borrower fails to accept
any such rate by 11:00 a.m., California time, on the Business Day such quotation
is given, then the quoted rate shall expire and Bank shall have no obligation to
permit a LIBOR option to be selected on such day. If no specific designation of
interest is made at the time any advance is requested hereunder or at the end of
any Fixed Rate Term, Borrower shall be deemed to have made a Prime Rate interest
selection for such advance or the principal amount to which such Fixed Rate Term
applied.
(c) Limitation on LIBOR Portions. Unless Bank otherwise consents,
no more than one (1) portion of the outstanding principal balance of this Note
shall bear interest in relation to Bank's LIBOR at any time.
(d) Additional LIBOR Provisions.
(i) If Bank at any time shall determine that for any reason
adequate and reasonable means do not exist for ascertaining LIBOR, then Bank
shall promptly give notice thereof to Borrower. If such notice is given and
until such notice has been withdrawn by Bank, then (A) no new LIBOR option may
be selected by Borrower, and (B) any portion of the outstanding principal
balance hereof which bears interest determined in relation to LIBOR, subsequent
to the end of the
-3-
9
Fixed Rate Term applicable thereto, shall bear interest determined in relation
to the Prime Rate.
(ii) If any law, treaty, rule, regulation or determination of a
court or governmental authority or any change therein or in the interpretation
or application thereof (each, a "Change in Law") shall make it unlawful for
Bank (A) to make LIBOR options available hereunder, or (B) to maintain interest
rates based on LIBOR, then in the former event, any obligation of Bank to make
available such unlawful LIBOR options shall immediately be canceled, and in the
latter event, any such unlawful LIBOR-based interest rates then outstanding
shall be converted, at Bank's option, so that interest on the portion of the
outstanding principal balance subject thereto is determined in relation to the
Prime Rate; provided however, that if any such Change in Law shall permit any
LIBOR-based interest rates to remain in effect until the expiration of the
Fixed Rate Term applicable thereto, then such permitted LIBOR-based interest
rates shall continue in effect until the expiration of such Fixed Rate Term.
Upon the occurrence of any of the foregoing events, Borrower shall pay to Bank
immediately upon demand such amounts as may be necessary to compensate Bank for
any fines, fees, charges, penalties or other costs incurred or payable by Bank
as a result thereof and which are attributable to any LIBOR options made
available to Borrower hereunder, and any reasonable allocation made by Bank
among its operations shall be conclusive and binding upon Borrower.
(iii) If any Change in Law or compliance by Bank with any request or
directive (whether or not having the force of law) from any central bank or
other governmental authority shall:
(A) subject Bank to any tax, duty or other charge with respect to any LIBOR
options, or change the basis of taxation of payments to Bank of principal,
interest, fees or any other amount payable hereunder (except for changes in the
rate of tax on the overall net income of Bank); or
(B) impose, modify or hold applicable any reserve, special deposit,
compulsory loan or similar requirement against assets held by, deposits or
other liabilities in or for the account of, advances or loans by, or any other
acquisition of funds by any office of Bank; or
(C) impose on Bank any other condition;
-4-
10
and the result of any of the foregoing is to increase the cost to Bank of
making, renewing or maintaining any LIBOR options hereunder and/or to reduce
any amount receivable by Bank in connection therewith, then in any such case,
Borrower shall pay to Bank immediately upon demand such amounts as may be
necessary to compensate Bank for any additional costs incurred by Bank and/or
reductions in amounts received by Bank which are attributable to such LIBOR
options. In determining which costs incurred by Bank and/or reductions in
amounts received by Bank are attributable to any LIBOR options made available
to Borrower hereunder, any reasonable allocation made by Bank among its
operations shall be conclusive and binding upon Borrower.
(e) Payment of Interest. Interest accrued on this Note shall be
payable on the 1st day of each month, commencing November 1, 1996.
(f) Default Interest. From and after the maturity date of this Note,
or such earlier date as all principal owing hereunder becomes due and payable
by acceleration or otherwise, the outstanding principal balance of this Note
shall bear interest until paid in full at an increased rate per annum (computed
on the basis of a 360-day year, actual days elapsed) equal to four percent (4%)
above the rate of interest from time to time applicable to this Note.
BORROWING AND REPAYMENT:
(a) Borrowing and Repayment. Borrower may from time to time during
the term of this Note borrow, partially or wholly repay its outstanding
borrowings, and reborrow, subject to all of the limitations, terms and
conditions of this Note and of any document executed in connection with or
governing this Note; provided however, that the total outstanding borrowings
under this Note shall not at any time exceed the principal amount stated above.
The unpaid principal balance of this obligation at any time shall be the total
amounts advanced hereunder by the holder hereof less the amount of principal
payments made hereon by or for any Borrower, which balance may be endorsed
hereon from time to time by the holder. The outstanding principal balance of
this Note shall be due and payable in full on April 30, 1997.
(b) Advances. Advances hereunder, to the total amount of the
principal sum stated above, may be made by the holder at the oral or written
request of (i) XXXX XXXXXX or XXXX XXXXX or XXXXX XXXXX or XXXXX XXXXX, any one
acting alone, who are authorized to request advances and direct the disposition
of any advances until written notice of the revocation of such authority is
received by the holder at the office designated above, or (ii) any person,
with respect to advances deposited to the credit of any account of any Borrower
with the holder, which advances, when so deposited, shall be conclusively
presumed to have been made to or
-5-
11
for the benefit of each Borrower regardless of the fact that persons other than
those authorized to request advances may have authority to draw against such
account. The holder shall have no obligation to determine whether any person
requesting an advance is or has been authorized by any Borrower.
(c) Application of Payments. Each payment made on this
Note shall be credited first, to any interest then due and second, to the
outstanding principal balance hereof. All payments credited to principal shall
be applied first, to the outstanding principal balance of this Note which bears
interest determined in relation to the Prime Rate, if any, and second, to the
outstanding principal balance of this Note which bears interest determined in
relation to LIBOR, with such payments applied to the oldest Fixed Rate Term
first.
PREPAYMENT:
(a) Prime Rate. Borrower may prepay principal on any
portion of this Note which bears interest determined in relation to the Prime
Rate at any time, in any amount and without penalty.
(b) LIBOR. Borrower may prepay principal on any portion of
this Note which bears interest determined in relation to LIBOR at any time and
in the minimum amount of ONE HUNDRED THOUSAND DOLLARS ($100,000.00); provided
however, that if the outstanding principal balance of such portion of this Note
is less than said amount, the minimum prepayment amount shall be the entire
outstanding principal balance thereof. In consideration of Bank providing this
prepayment option to Borrower, or if any such portion of this Note shall become
due and payable at any time prior to the last day of the Fixed Rate Term
applicable thereto by acceleration or otherwise, Borrower shall pay to Bank
immediately upon demand a fee which is the sum of the discounted monthly
differences for each month from the month of prepayment through the month in
which such Fixed Rate Term matures, calculated as follows for each such month:
(i) Determine the amount of interest which would have
accrued each month on the amount prepaid at the interest
rate applicable to such amount had it remained
outstanding until the last day of the Fixed Rate Term
applicable thereto.
(ii) Subtract from the amount determined in (i) above the
amount of interest which would have accrued for the same
month on the amount prepaid for the remaining term of
such Fixed Rate Term at LIBOR in effect on the date of
prepayment for new loans made
-6-
12
for such term and in a principal amount equal to the amount
prepaid.
(iii) If the result obtained in (ii) for any month is greater than
zero, discount that difference by LIBOR used in (ii) above.
Each Borrower acknowledges that prepayment of such amount may result in Bank
incurring additional costs, expenses and/or liabilities, and that it is
difficult to ascertain the full extent of such costs, expenses and/or
liabilities. Each Borrower, therefore, agrees to pay the above-described
prepayment fee and agrees that said amount represents a reasonable estimate of
the prepayment costs, expenses and/or liabilities of Bank. If Borrower fails to
pay any prepayment fee when due, the amount of such prepayment fee shall
thereafter bear interest until paid at a rate per annum four percent (4%) above
the Prime Rate in effect from time to time (computed on the basis of a 360-day
year, actual days elapsed). Each change in the rate of interest on any such
past due prepayment fee shall become effective on the date each Prime Rate
change is announced within Bank.
EVENTS OF DEFAULT:
This Note is made pursuant to and is subject to the terms and
conditions of that certain Credit Agreement between Borrower and Bank dated as
of December 14, 1993, as amended from time to time (the "Credit Agreement").
Any default in the payment or performance of any obligation under this Note, or
any defined event of default under the Credit Agreement, shall constitute an
"Event of Default" under this Note.
MISCELLANEOUS:
(a) Remedies. Upon the occurrence of any Event of Default, the holder
of this Note, at the holder's option, may declare all sums of principal and
interest outstanding hereunder to be immediately due and payable without
presentment, demand, notice of nonperformance, notice of protest, protest or
notice of dishonor, all of which are expressly waived by each Borrower, and the
obligation, if any, of the holder to extend any further credit hereunder shall
immediately cease and terminate. Each Borrower shall pay to the holder
immediately upon demand the full amount of all payments, advances, charges,
costs and expenses, including reasonable attorneys' fees (to include outside
counsel fees and all allocated costs of the holder's in-house counsel),
expended or incurred by the holder in connection with the enforcement of the
holder's rights and/or the collection of any amounts which become due to the
holder under this Note, and the prosecution or defense of any action in any way
related to this Note, including without limitation, any action for declaratory
relief,
-7-
13
whether incurred at the trial or appellate level, in an arbitration proceeding
or otherwise, and including any of the foregoing incurred in connection with
any bankruptcy proceeding (including without limitation, any adversary
proceeding, contested matter or motion brought by Bank or any other person)
relating to any Borrower or any other person or entity.
(b) Obligations Joint and Several. Should more than one person or
entity sign this Note as a Borrower, the obligations of each such Borrower
shall be joint and several.
(c) Governing Law. This Note shall be governed by and construed in
accordance with the laws of the State of California.
IN WITNESS WHEREOF, the undersigned has executed this Note as of the
date first written above.
CENTRAL CONSUMER FINANCE COMPANY
By: /s/ Xxxx Xxxxxx
------------------------------------
Title:
-----------------------------
-8-
14
XXXXX FARGO BANK CORPORATE RESOLUTION: BORROWING
--------------------------------------------------------------------------------
TO: XXXXX FARGO BANK, NATIONAL ASSOCIATION
RESOLVED: That this corporation, CENTRAL CONSUMER FINANCE COMPANY,
proposes to obtain from time to time, or has obtained credit from Xxxxx Fargo
Bank, National Association ("Bank").
BE IT FURTHER RESOLVED, that any one of the following officers:
PRESIDENT OR SECRETARY OR TREASURER OR CONTROLLER
together with any one of the following officers:
NONE
of this corporation be and they are hereby authorized and empowered for and on
behalf of and in the name of this corporation and as its corporate act and
deed:
(a) To borrow money from Bank and to assume any liabilities of any
other person or entity to Bank, in such form and on such terms and conditions as
shall be agreed upon by those authorized above and Bank, and to sign and deliver
such promissory notes and other evidences of indebtedness for money borrowed or
advanced and/or for indebtedness assumed as Bank shall require; such promissory
notes or other evidences of indebtedness may provide that advances be requested
by telephone communication and by any officer, employee or agent of this
corporation so long as the advances are deposited into any deposit account of
this corporation with Bank; this corporation shall be bound to Bank by, and
Bank may rely upon, any communication or act, including telephone
communications, purporting to be done by any officer, employee or agent of
this corporation provided that Bank believes, in good faith, that the same is
done by such person.
(b) To contract for the issuance by Bank of letters of credit, to
discount with Bank notes, acceptances and evidences of indebtedness payable to
or due this corporation, to endorse the same and execute such contracts and
instruments for repayment thereof to Bank as Bank shall require, and to enter
into foreign exchange transactions with or through Bank.
(c) To mortgage, encumber, pledge, convey, grant, assign or
otherwise transfer all or any part of this corporation's real or personal
property for the purpose of securing the payment of any of the promissory
notes, contracts, instruments and other evidences of indebtedness authorized
hereby, and to execute and deliver to Bank such deeds of trust, mortgages,
pledge agreements and/or other security agreements as Bank shall require.
-1-
15
(d) To perform all acts and to execute and deliver all documents
described above and all other contracts and instruments which Bank deems
necessary or convenient to accomplish the purposes of this resolution and/or to
perfect or continue the rights, remedies and security interests to be given to
Bank hereunder, including without limitation, any modifications, renewals
and/or extensions of any of this corporation's obligations to Bank, however
evidenced; provided that the aggregate principal amount of all sums borrowed
and credits established pursuant to this resolution shall not at any time
exceed the sum of $50,000,000.00 outstanding and unpaid.
Loans made pursuant to a special resolution and loans made by offices
of Bank other than the office to which this resolution is delivered shall be in
addition to the foregoing limitation.
BE IT FURTHER RESOLVED, that the authority hereby conferred is in
addition to that conferred by any other resolution heretofore or hereafter
delivered to Bank and shall continue in full force and effect until Bank shall
have received notice in writing, certified by the Secretary of this
corporation, of the revocation hereof by a resolution duly adopted by the
Board of Directors of this corporation. Any such revocation shall be effective
only as to credit which is extended or committed by Bank, or actions which are
taken by this corporation pursuant to the resolutions contained herein,
subsequent to Bank's receipt of such notice. The authority hereby conferred
shall be deemed retroactive, and any and all acts authorized herein which were
performed prior to the passage of these resolutions are hereby approved and
ratified.
-2-
16
CERTIFICATION
I, XXXXX X. XXXXX, Secretary of CENTRAL CONSUMER FINANCE COMPANY, a
corporation created and existing under the laws of the State of California, do
hereby certify and declare that the foregoing is a full, true and correct copy
of the resolutions duly passed and adopted by the Board of Directors of said
corporation, by written consent of all Directors of said corporation or at a
meeting of said Board duly and regularly called, noticed and held on N/A, 1996,
at which meeting a quorum of the Board of Directors was present and voted in
favor of said resolutions; that said resolutions are now in full force and
effect; that there is no provision in the Articles of Incorporation or Bylaws
of said corporation, or any shareholder agreement, limiting the power of the
Board of Directors of said corporation to pass the foregoing resolutions and
that such resolutions are in conformity with the provisions of such Articles of
Incorporation and Bylaws; and that no approval by the shareholders of, or of
the outstanding shares of, said corporation is required with respect to the
matters which are the subject of the foregoing resolutions.
IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed the
corporate seal of said corporation as of October 9, 1996.
/s/ XXXXX X. XXXXX
-----------------------------------
XXXXX X. XXXXX, Secretary
of Central Consumer Finance Company
-3-
17
[XXXXX FARGO BANK LETTERHEAD]
October __, 1996
Central Consumer Finance Company
0000 Xxxxx Xxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: __________________________
Subject: Facsimile Transmissions of Applications for
Issuance of, and Amendments to, Letters of Credit
Dear ____________________________:
Central Consumer Finance Company (the "Applicant"), a Delaware
corporation, has informed Xxxxx Fargo Bank, N.A. ("Xxxxx Fargo") that it may
from time to time wish to use its own facsimile transmission equipment ("FTE")
to transmit to Xxxxx Fargo executed copies of applications (each an
"Application") for the issuance of, and amendments to, letters of credit. Each
such transmission sent by FTE shall be on Xxxxx Fargo's Application for
Commercial Letter of Credit, a copy of which is attached hereto, Xxxxx Fargo's
Application for Standby Letter of Credit, a copy of which is attached hereto,
or such other form as may be satisfactory to Xxxxx Fargo, with each such
Application being duly completed and signed by the Applicant. Each Application
as received by Xxxxx Fargo by FTE shall be referred to hereinafter as a
"Facsimile Application". This letter sets forth the terms and conditions under
which the Applicant may send Applications to Xxxxx Fargo by FTE.
1. The Applicant will transmit by FTE completed, executed copies of the
Applications to Xxxxx Fargo's Letter of Credit Operations at Xxxxx Fargo Bank,
N. A., Trade Services Division, 0000 Xxxxx Xxxxx, Xx Xxxxx, Xxxxxxxxxx 00000,
(000) 000-0000. The Applicant shall be responsible for insuring that the
Applications are duly executed by a person or persons authorized to contract
with Xxxxx Fargo for the issuance of, or amendments to, letters of credit.
2. The Applicant acknowledges that Xxxxx Fargo is not obligated to the
Applicant to accept Facsimile Applications and to issue or amend letters of
credit in accordance with such Facsimile Applications, but that Xxxxx Fargo may
do so solely as a convenience to the Applicant. Xxxxx Fargo may at any time
notify the Applicant that Xxxxx Fargo no longer accepts Facsimile Applications.
3. The Applicant understands that Xxxxx Fargo will not see the original of
the Applications underlying the Facsimile Applications, and that Xxxxx Fargo
will thus have no means of verifying that (i) the signature or the entries on a
Facsimile Application are authentic, (ii) the Application underlying a
Facsimile Application bears an authorized signature or (iii) the Application
underlying a Facsimile
1
18
Application contains the entries shown on the Facsimile Application. The
Applicant agrees that Xxxxx Fargo will not be required to verify that the
signatures or any other entries on the Facsimile Applications are authentic
signatures or entries, whether such Facsimile Applications are received by
Xxxxx Fargo before or after the date of this letter agreement, but that Xxxxx
Fargo will only be required to examine such signatures for their conformity, in
the opinion of Xxxxx Fargo, to the certified sample signatures, previously
delivered to Xxxxx Fargo, of the officers of the Applicant who appear to have
signed such Facsimile Applications. The Applicant also understands that Xxxxx
Fargo is agreeing to receive Facsimile Applications in this manner as an
accommodation to the Applicant, and the Applicant therefore accepts the risk
that a Facsimile Application, whether heretofore or hereafter received by Xxxxx
Fargo, may not in fact contain authentic signatures or entries.
4. Each Facsimile Application, if it is on an Application for
Commercial Letter of Credit, each letter of credit or amendment issued pursuant
to such Facsimile Application, the issuance of each such letter of credit or
amendment and the transactions under each such letter of credit or amendment and
this letter agreement shall be subject to, and shall be governed by, the terms
and conditions of Xxxxx Fargo's Continuing Commercial Letter of Credit
Agreement, a copy of which is attached hereto, or Xxxxx Fargo's Continuing
Standby and Commercial Letter of Credit Agreement, a copy of which is attached
hereto. Each Facsimile Application, if it is on an Application for Standby
Letter of Credit, each letter of credit or amendment issued pursuant to such
Facsimile Application, the issuance of each such letter of credit or amendment
and the transactions under each such letter of credit or amendment and this
letter agreement shall be subject to, and shall be governed by, the terms and
conditions of Xxxxx Fargo's Continuing Standby Letter of Credit Agreement, a
copy of which is attached hereto, or Xxxxx Fargo's Continuing Standby and
Commercial Letter of Credit Agreement, a copy of which is attached hereto. To
the extent that this letter agreement is inconsistent with the letter of credit
agreement (each a "Letter of Credit Agreement") governing any Facsimile
Application, this letter agreement shall prevail.
5. The Applicant acknowledges that the use of FTE to transmit
Applications to Xxxxx Fargo, and Xxxxx Fargo's ability to issue and amend
letters of credit in accordance with Facsimile Applications so received, may be
interrupted by industrial disputes, acts of government, fires, power failures,
computer malfunctions, civil disturbances or other causes or events not within
the control of Xxxxx Fargo.
6. Except in the case of Xxxxx Fargo's gross negligence or willful
misconduct, the Applicant agrees, in addition to, and not in restriction of any
provision of any Letter of Credit Agreement governing any Facsimile
Application, that Xxxxx Fargo will not be liable to the Applicant for, and that
the Applicant will reimburse and indemnify Xxxxx Fargo against and hold Xxxxx
Fargo harmless from, any damages, losses, liabilities, claims, damages,
obligations, penalties, actions, judgments, suits, expenses and/or costs, of
any kind whatsoever and howsoever caused, including, but not limited to, any
attorney's fees and/or expenses, paid, suffered or incurred by, or imposed upon,
the Applicant or Xxxxx Fargo, as the case may be, directly or indirectly as a
result of, or in any way connected with, Xxxxx Fargo's issuance or amendment of
any letter of credit in accordance with a Facsimile Application, whether such
Facsimile Application was received by Xxxxx Fargo before or after the date of
this letter agreement.
2
19
7. The Applicant agrees to reimburse Xxxxx Fargo immediately upon
demand for any and all costs, expenses and/or attorneys' fees paid, suffered or
incurred by, or imposed upon, Xxxxx Fargo in enforcing Xxxxx Fargo's rights and
privileges under this letter agreement.
8. The Applicant agrees that all amounts payable by the Applicant
to Xxxxx Fargo under this letter agreement will be payable immediately on
demand without any setoff or counterclaim.
9. The Applicant agrees that its obligations under this letter
agreement are unconditional and continuing whether or not any or all the
letters of credit issued pursuant to the Facsimile Applications have expired or
otherwise terminated.
10. The Applicant agrees that Xxxxx Fargo's rights and privileges
under this letter agreement will inure to the benefit of Xxxxx Fargo's
successors and assigns, and that the Applicant will not, and may not, assign
its obligations under this letter agreement to any person or entity without the
prior written consent of Xxxxx Fargo.
11. The Applicant agrees that until this letter agreement is
terminated or amended to provide otherwise, and without further reference in
any other document, this letter agreement will apply to, be incorporated in and
govern all Facsimile Applications, and the issuance of all letters of credit or
amendments requested by such Facsimile Applications. The termination of this
letter agreement will not terminate the rights of Xxxxx Fargo under Sections 6
and 7 of this letter agreement.
12. The Applicant agrees that this letter agreement, and Xxxxx
Fargo's performance under this letter agreement, shall be governed by and be
construed in accordance with the "Uniform Customs and Practice for Documentary
Credits" (the "UCP"), and International Chamber of Commerce publication, in
force on the date of this letter agreement. The Applicant further agrees that
this letter agreement shall be governed by and be construed in accordance with
the laws of the State of California, except to the extent that such laws are
inconsistent with the UCP.
3
20
Please indicate your agreement to the terms and conditions of this
letter agreement by signing and dating this letter in the spaces provided below
and returning this letter so signed and dated to Xxxxx Fargo.
Sincerely,
XXXXX FARGO BANK, N.A.
By: /s/ Xxxxx Xxxxxx
-----------------------------
Title: Vice President
----------------------
AGREED TO AND ACCEPTED BY:
CENTRAL CONSUMER FINANCE COMPANY
By: /s/ Xxxx Xxxxxx
----------------------------
Title:
--------------------------
Date: October , 1996
--
4
