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 FIRST INTERSTATE BANK OF TEXAS, N.A., BANK ONE, TEXAS,
N.A., LASALLE NATIONAL BANK, THE DAIWA BANK, LTD., XXXXXX TRUST AND SAVINGS
BANK, and COMERICA BANK-TEXAS (collectively, the "Banks"), FIRST INTERSTATE
BANK OF TEXAS, N.A., 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 (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:
"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.
"ARBITRATION PROGRAM" shall have the meaning assigned to it in Article
XI hereof.
"BANKS" shall mean First Interstate Bank of Texas, N.A. and all other
banks which are parties to this Loan Agreement or any amendment thereto.
"BORROWERS" shall mean AmeriCredit Corp., a Texas corporation,
AmeriCredit Financial Services, Inc., a Delaware corporation, and AmeriCredit
Operating Co., Inc., a Delaware corporation.
"BUSINESS DAY" shall mean a day upon which business is transacted by
national banks in Fort Worth, Texas and New York, New York.
"CAPITAL EXPENDITURES" shall mean, for any specified period, the
aggregate of all gross expenditures during such period for any assets, or for
improvements, replacements, substitutions or additions therefor or thereto,
which are capitalized on the consolidated balance sheet of the Company,
including the balance sheet amount of any capitalized lease obligations
incurred during such period.
"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.
"CASH FLOW" shall mean, for any period, the sum of Net Income,
depreciation and amortization.
"CONSEQUENTIAL LOSS" shall, with respect to the payment by any of
Borrowers or any of Guarantors of all or any portion of the then outstanding
principal amount of any Bank's Eurodollar Advance on a day other than the
last day of the Interest Period related thereto, mean any loss, cost or
expense incurred by such Bank as a result of the timing of such payment or in
redepositing such principal amount, including the sum of (i) the interest
which, but for such payment, such Bank would have earned in respect of such
principal amount so paid, for the remainder of the Interest Period applicable
to such sum, reduced, if such Bank is able to redeposit such principal amount
so paid for the balance of such Interest Period, by the interest earned by
such Bank as a result of so redepositing such principal amount PLUS (ii) any
expense or penalty incurred by such Bank on redepositing such principal
amount.
"CONSOLIDATED" shall mean the consolidation of any Person, in accordance
with GAAP, with its properly consolidated subsidiaries. References herein to
a Person's Consolidated financial statements, financial position, financial
condition, liabilities, etc., refer to the consolidated financial statements,
financial position, financial condition, liabilities, etc. of such Person and
its properly consolidated subsidiaries.
"CONTROLLED GROUP" shall mean (i) the controlled group of corporations
as defined in section 1563 of the United States Internal Revenue Code of
1986, as amended, or (ii) the group of trades or business under common
control as defined in section 414(c) of the United States Internal Revenue
Code of 1986, as amended, of which Company is part or may become a part.
"DEALER" shall mean a retail vendor of motor vehicles from which
AmeriCredit Financial Services, Inc. acquires Finance Contracts which is not
an Affiliate of any of Borrowers.
"DEALER DISCOUNT" shall mean, with respect to a Finance Contract, the
amount equal to the difference between (i) the face amount of the Finance
Contract, less unearned interest or finance charges and fees, and (ii) the
amount of cash advanced to the Dealer for the purchase of such Finance
Contract.
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"DELINQUENT LOANS" shall mean Indirect Loans having an installment
payment or final payment which is more than 60 days past due (without regard
to any grace period) on a contractual basis prior to any repossession of the
related vehicle.
"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.
"ELIGIBLE FINANCE CONTRACT" shall mean a Finance Contract,
(i) that is secured by an Eligible Vehicle,
(ii) that represents a Domestic Finance Contract to
an Obligor (other than an Affiliate of Borrower),
(iii) that was originated by a Dealer unless
otherwise consented to in writing by the Agent (which
consent shall not be unreasonably withheld),
(iv) that is not delinquent (without regard to any
stated grace period) more than thirty (30) days on a
contractual basis prior to any repossession of the related
Eligible Vehicle,
(v) that has not been modified in any respect, unless
the Finance Contract constitutes an Eligible Modified
Finance Contract,
(vi) in respect of which the related Eligible Vehicle
has not been repossessed,
(vii) that is not a Stayed Loan,
(viii) that, as set forth in a written opinion, in
form and substance, and from legal counsel, reasonably
satisfactory to the Agent, constitutes chattel paper in
which a security interest may be perfected under the UCC of
the applicable jurisdiction by filing financing statements
and making a notation of the security interests on the
chattel paper and without taking possession of either the
agreements evidencing such Finance Contract or related
certificates of title.
(ix) that is not subject to a Lien in favor of a Person
other than the Agent on behalf of the Banks and that is not
subject to a Securitization; and
(x) in respect of which the representations and
warranties set forth in the Security Agreement are true.
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"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 or obtains,
within one hundred fifty (150) days following the date of a Finance Contract,
legal title or a first priority lien under applicable provisions of the motor
vehicle or other similar law of the applicable jurisdiction.
"ERISA" shall mean the Employee Retirement Income Security
Act of 1974, as amended, together with all regulations issued
pursuant thereto.
"ENVIRONMENTAL CLAIM" shall mean any written notice by any Person
alleging potential liability or responsibility for (a) any removal or
remedial action, including, without limitation, any clean-up, removal or
treatment of any Hazardous Material or any action to prevent or minimize the
release or movement of any Hazardous Materials through or in the air, soil,
surface water, ground water or other property, (b) damage to the environment,
or costs with respect thereto, or (c) personal injury (including sickness,
disease or death), resulting from or based upon (i) the presence, release or
movement (including sudden or nonsudden, accidental or nonaccidental, leaks
or spills) of any Hazardous Material at, in or from the environment or any
property, whether or not owned by the Company, or (ii) circumstances forming
the basis of any violation, or alleged violation, of any Environmental Law or
any permit issued to Company or any of its Subsidiaries pursuant to any
Environmental Law.
"ENVIRONMENTAL LAWS" shall mean the Comprehensive Environmental
Response, Compensation, and Liability Act (42 U.S.C. Section 9601 ET SEQ.),
the Hazardous Material Transportation Act (49 U.S.C. Section 1801 ET SEQ.),
the Recourse 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
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to Eurocurrency liabilities or Eurocurrency funding. Each determination by
Agent of the Eurodollar Reserve Requirement shall, in the absence of manifest
error, be conclusive and binding.
"EVENT OF DEFAULT" shall have the meaning assigned to it in Article X
hereof.
"FDIC" shall mean the Federal Deposit Insurance Corporation (or any
successor thereof).
"FEDERAL FUNDS RATE" shall mean, for any period, a fluctuating interest
rate per annum equal for each day during such period to the weighted average
of the rates on overnight Federal funds transactions with members of the
Federal Reserve System arranged by Federal funds brokers, as published for
such day (or, if such day is not a Business Day, for the next preceding
Business Day) by the Federal Reserve Bank of New York, or, if such rate is
not so published for any day which is a Business Day, the average of the
quotations for such day on such transactions received by the Agent from three
Federal funds brokers of recognized standing selected by Agent.
"FINANCE CONTRACT" shall mean a motor vehicle installment sales
contract assigned to AmeriCredit Financial Services, Inc. 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.
"FIXED CHARGE COVERAGE RATIO" shall mean Net Income before interest,
taxes, depreciation and amortization plus rental expense under operating
leases less Investment Income DIVIDED BY the sum of interest expense and
rental expense under operating leases less Investment Income.
"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 per
annum quoted by First Interstate Bank of Texas, N.A., from time to time as
its prime commercial rate of interest (it being understood that Banks may
from time to time extend credit to other borrowers at rates of interest
varying from, and having no relationship to, such prime commercial rate).
"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.
"GUARANTOR" shall mean any of the Guarantors.
"GUARANTORS" shall mean AmeriCredit Premium Finance, Inc., a Delaware
corporation, and ACF Investment Corp., a Delaware corporation, and any other
corporation which executes a Guaranty Agreement after the date of this Loan
Agreement.
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"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 C hereto, as the same may be amended or
supplemented from time to time.
"HAZARDOUS MATERIALS" shall mean those substances which are regulated
by or form the basis of liability under any Environmental Laws.
"INDEBTEDNESS" shall mean, with respect to any person, all
indebtedness, obligations and liabilities of such Person, including without
limitation:
(1) all "liabilities" which would be reflected on
a balance sheet of such Person, prepared in
accordance with Generally Accepted Accounting
Principles;
(2) all obligations of such Person in respect of
any Capital Lease; and
(3) all obligations of such Person in respect of
any Guaranty.
"INDIRECT LOAN" shall mean any Finance Contract or promissory note
received for or in connection with the financing of the sale of a motor
vehicle by a third party Dealer.
"INTERBANK OFFERED RATE" shall mean, with respect to each Interest
Period, that rate of interest determined by Agent on the basis of the offered
rates for deposits in Dollars commencing on the first day of such Interest
Period which appear on the Reuters Screen LIBO Page as of 11:00 a.m., London
time two (2) Eurodollar Business Days preceding the first day of such
Interest Period, such deposits being for a period of time equal to or
comparable to such Interest Period and in an amount equal to or comparable to
the principal amount of the Eurodollar Loan to which such Interest Period
relates. If at least two (2) such offered rates appear on the Reuters Screen
LIBO Page, the rate in respect to the applicable Interest Period will be the
arithmetic mean of such offered rates. If fewer than two (2) offered rates
appear, the rate in respect of such Interest Period will be determined on the
basis of the rates at which deposits in Dollars are offered by Agent (at
approximately 11:00 a.m. London time, on the day that is two (2) Eurodollar
Business Days prior to the first day of such Interest Period) to first-class
banks in the London Interbank eurodollar market for delivery on the first day
of such Interest Period, such deposits being for a period of time equal or
comparable to such Interest Period and in an amount equal to or comparable to
the principal amount of the Eurodollar Loan to which such Interest Period
relates.
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"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 Company 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 Revolving Credit Termination
Date such Interest Period shall end on the Revolving
Credit Termination Date.
"INVESTMENT" shall mean any direct or indirect purchase or other
acquisition of, or a beneficial interest in, capital stock or other
securities 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.
"INVESTMENT INCOME" shall mean interest and dividends on the Company's
cash, cash equivalents, restricted cash or investment securities as recorded
on Company's Consolidated balance sheet.
"LAW" shall mean all statutes, laws, ordinances, rules, regulations,
orders, writs, injunctions or decrees of any Tribunal.
"LIEN" shall mean any mortgage, pledge, security interest, encumbrance,
lien or charge of any kind, including without limitation, any agreement to
give any of the foregoing, any conditional sale or other title retention
agreement, any lease in the nature thereof, and the filing of or agreement to
give any financing statement or other similar form of public notice under the
Laws of any jurisdiction.
"LOAN DOCUMENTS" shall mean this Loan Agreement, the Notes, (including
any renewals, extensions and refundings thereof), the Security Agreement, the
Guaranty Agreement, and any agreements or documents (and with respect to this
Loan Agreement, and such other agreements and documents, any amendments or
supplements thereto or modifications thereof) executed or delivered pursuant
to the terms of this Loan Agreement.
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"LOAN LOSS RESERVE" shall mean the allowance for losses relating to
Indirect Loans as shown on the Consolidated financial statements of the
Company prepared in accordance with Generally Accepted Accounting Principles.
"MAJORITY BANKS" shall mean, at any time, Banks holding Notes
representing at least sixty-six and 2/3 percent (66 2/3%) of the aggregate
unpaid principal amount of the aggregate Revolving Credit Loans or if no
Revolving Credit Loans are at the time outstanding, Banks having at least
sixty-six and 2/3 percent (66 2/3%) of the Total Revolving Credit Commitment.
"MATERIAL ADVERSE EFFECT" shall mean any act, circumstance, or event
that (i) could have any adverse effect whatsoever upon the validity or
enforceability of the Loan Documents, (ii) causes or, with notice or lapse of
time, or both, could cause an Event of Default under this Loan Agreement,
(iii) is or reasonably could be expected to be material and adverse to the
financial condition or business operations of the Company and its
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. Xxx. Art. 5069-1.04, as it may from time to time be amended,
the "applicable rate ceiling" shall be the "indicated rate" ceiling from time
to time in effect as limited by Art. 5069-1.04(b); provided, however, that to
the extent permitted by applicable law, Banks reserve the right to change the
"applicable rate ceiling" from time to time by further notice and disclosure
to Borrowers; and, provided further, that the "highest nonusurious rate of
interest permitted by applicable law" for purposes of this Loan 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.
"NET AMOUNT" shall mean with respect to Eligible Finance Contracts, as
of any date, the outstanding face amount thereof as of such date,
MINUS (1) (without duplication) to the extent included in the face amount
thereof, unearned interest or finance charges with respect to future periods
(or reserves with respect to unearned interest or finance charges) and (2)
the aggregate amount by which the aggregate unpaid principal balance of
Eligible Finance Contracts which have been modified during the preceding
three (3) month period exceeds three and one-half percent (3.5%) of the
aggregate unpaid principal balance of all Eligible Finance Contracts.
"NET CREDIT LOSSES" shall mean, for any period, the actual aggregate
amount of principal of Indirect Loans charged off prior to the application of
the Dealer Discount or reserves during such period LESS the aggregate amount
of Recoveries on Indirect Loans during such period.
"NET INCOME" or "NET LOSS" shall mean, with respect to any period, the
consolidated net earnings or net loss, as the case may be, of Company and its
Subsidiaries for such period as determined in accordance with GAAP.
"NET INDIRECT LOANS" shall mean the aggregate amount of all Indirect
Loans LESS the amount of unearned finance charges.
"NOTES" shall mean the promissory notes executed by Borrowers and
delivered pursuant to the terms of this Loan Agreement, together with any
renewals, extensions or modifications thereof. "Note" shall mean any of the
Notes.
"OBLIGATIONS" shall mean all present and future indebtedness,
obligations, and liabilities of Borrowers to Banks or any of Banks, and all
renewals and extensions thereof, or any part thereof, arising pursuant to
this Loan Agreement or represented by the Notes, and all interest accruing
thereon, and reasonable attorneys' fees incurred in the enforcement or
collection thereof, regardless of whether such indebtedness, obligations and
liabilities
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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).
"OFFICER'S CERTIFICATE" shall mean a certificate signed in the name of
the Company by its Chief Executive Officer, President, one of its Executive
Vice Presidents, its Chief Financial Officer or its Controller.
"PAST DUE RATE" shall mean the lesser of (a) the Floating Base Rate in
effect from day-to-day, plus five percent (5.0%), or (b) the Maximum Rate.
"PBGC" shall mean the Pension Benefit Guaranty Corporation, and any
successor to all or any of the Pension Benefit Guaranty Corporation's
functions under ERISA.
"PERCENTAGE" shall mean, with respect to any Bank, such Bank's
proportionate share of the Total Revolving Credit Commitment, as set forth in
Section 2.01 opposite its name under the heading "Revolving Commitment
Percentage."
"PERMITTED LIENS" shall mean: (i) Liens on equipment and fixed assets,
including purchase money Liens, relating to or securing obligations in an
aggregate amount not to exceed one million dollars ($1,000,000); (ii) pledges
or deposits made to secure payment of Worker's Compensation (or to
participate in any fund in connection with Worker's Compensation),
unemployment insurance, pensions or social security programs; (iii) Liens
imposed by mandatory provisions of law such as for materialmen's, mechanics,
warehousemen's and other like Liens arising in the ordinary course of
business, securing Indebtedness whose payment is not yet due unless the same
are being contested in good faith and for which adequate reserves have been
provided; (iv) Liens for taxes, assessments and governmental charges or
levies imposed upon a Person or upon such Person's income or profits or
property, if the same are not yet due and payable or if the same are being
contested in good faith and as to which adequate reserves have been provided;
(v) 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; and (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.
"PERSON" shall mean and include an individual, partnership, joint
venture, corporation, trust, Tribunal, unincorporated organization or
government or any department, agency or political subdivision thereof.
"PLAN" shall mean an employee benefit plan or other plan maintained by
Company for employees of Company and any of its Subsidiaries and/or covered
by Title IV of ERISA, or subject to the minimum funding standards under
Section 412 of the Internal Revenue Code of 1986, as amended.
"RECOVERIES" shall mean amounts realized on the sale of collateral,
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.
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"REGULATION X" shall mean Regulation X promulgated by the Board of
Governors of the Federal Reserve System, 12 C.F.R. Part 224, or any other
regulation hereafter promulgated by said Board to replace the prior
Regulation X and having substantially the same function.
"REGULATORY DEFECT" shall mean (i) any failure of any of Borrowers or
any of the Guarantors to comply with any of the rules, regulations and other
requirements as contemplated in Section 7.11 hereof which would have a
Material Adverse Effect, and/or (ii) any unfavorable examination report shall
be received by any of Borrowers or any of the Guarantors from any regulatory
or similar Tribunal regarding any of the businesses or activities in which
the Borrowers and Guarantors are engaged, if such report would have a
Material Adverse Effect.
"REVOLVING COMMITMENT" shall have the meaning assigned to it in Section
2.01 hereof.
"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 benefit of the Banks
pursuant to the Security Agreement; provided, however, if the ratio of the
aggregate Dealer Discount to Net Indirect Loans originated in a trailing
three (3) month period exceeds eight percent (8.0%), such Revolving Credit
Borrowing Base advance rate percentage of the Net Amount of Eligible Finance
Contracts shall be reduced by two percentage points for each full percentage
point that the ratio of the aggregate Dealer Discount to Net Indirect Loans
originated in a trailing three (3) month period, as of any date of
calculation, exceeds eight percent (8.0%).
"REVOLVING CREDIT LOANS" shall have the meaning assigned to it in
Section 2.01 hereof.
"REVOLVING CREDIT TERMINATION DATE" shall mean May 31, 1996.
"SECURITIZATION" shall mean a transaction wherein an identified pool of
Finance Contracts and related documents are sold, pledged or conveyed by
AmeriCredit Financial Services, Inc., or an Affiliate thereof, to a trustee,
grantor trust or other special purpose financing entity as collateral
security for the issuance by AmeriCredit Financial Services, Inc. or such
Affiliate of notes, certificates or other evidence of indebtedness.
"SECURITY AGREEMENT" shall mean the Restated Security Agreement, dated
as of June 2, 1995, delivered by Borrowers to the Agent for the benefit of
the Banks, granting the security interests in certain of the properties and
assets of each of Borrowers described therein, as amended or supplemented
from time to time.
"STAYED LOAN" shall mean a Finance Contract:
(i) as to which an Obligor obligated on such Finance
Contract (any such Obligor, together with its Subsidiaries,
herein, collectively, the "Applicable Obligor"), shall file
a petition or seek relief under or take advantage of any
insolvency law; make an assignment for the benefit of its
creditors; commence a proceeding for the appointment of a
receiver, trustee, liquidator, custodian or conservator of
itself or of the whole or substantially all of its property;
file or consent to a petition under any chapter of the
United States Bankruptcy Code, as amended (11 U.S.C. Section 101
ET SEQ.), or file a petition or seek relief under or take
advantage of any other similar law or statute of the United
States of America, any state thereof or any foreign country;
or
(ii) as to which a court of competent jurisdiction
shall enter an order, judgment or decree appointing or
authorizing a receiver, trustee, liquidator, custodian or
conservator of the Applicable Obligor or of the whole or
substantially all of its property, or enter an order for
relief against the Applicable Obligor in any case commenced
under any chapter of the United States Bankruptcy Code, as amended,
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or grant relief under any similar law or statute of the
United States of America, any state thereof or any foreign
country; or as to which, under the provisions of any
law for the relief or aid of debtors, a court of competent
jurisdiction or a receiver, trustee, liquidator, custodian
or conservator shall assume custody or control or take
possession of the Applicable Obligor or of the whole or
substantially all of its property; or as to which there is
commenced against the Applicable Obligor any proceeding for
any of the foregoing relief or as to which a petition is
filed against the Applicable Obligor under any chapter of
the United States Bankruptcy Code, as amended, or under any
other similar law or statute of the United States of America
or any state thereof or any foreign country and such
proceeding or petition remains undismissed for a period of
60 days; or as to which the applicable Obligor by any act
indicates its consent to, approval of or acquiescence in any
such proceeding or petition;
PROVIDED, HOWEVER, that a Finance Contract shall cease to be
a Stayed Loan at such time as so long as (A) all principal,
interest and other amounts theretofore due and payable
according to the terms of such Finance Contract (as such
terms have been approved, adjusted and/or confirmed pursuant
to court order or otherwise in any proceeding referred to in
clause (i) or (ii) of this definition) have been irrevocably
paid to or collected or received by Borrower and all such
amounts thereafter due and payable shall be paid to or
collected or received by the Borrower when due (or within
any stated grace period) and (B) such Finance Contract shall
be secured to the same extent as before such Finance
Contract first became a Stayed Loan and no dispute regarding
the existence, validity or priority of such security shall
be pending in any court or asserted in any pending appeal.
"SUBSIDIARY" shall mean, as to any particular parent corporation, any
corporation of which more than fifty percent (by number of votes) of the
Voting Stock shall be owned by such parent corporation and/or one or more
corporations which themselves have more than fifty percent (by number of
votes) of their Voting Stock owned by such parent corporation. As used
herein, the term "Subsidiary" shall also mean any "Subsidiary" of the Company.
"TAXES" shall mean all taxes, levies, assessments, fees, withholdings
or other charges at any time imposed by any Laws or Tribunal.
"TANGIBLE NET WORTH" shall mean, as of any date, the total
shareholders' equity (including capital stock both common and preferred,
additional paid-in capital and retained earnings after deducting treasury
stock) which would appear on a consolidated balance sheet of Company prepared
as of such date in accordance with Generally Accepted Accounting Principles
LESS intangible assets which would appear on a consolidated balance sheet of
Company prepared as of such date in accordance with General Accepted
Accounting Principles.
"TRIBUNAL" shall mean any municipal, state, commonwealth, federal,
foreign, territorial or other court, governmental body, subdivision, agency,
department, commission, board or bureau or instrumentality.
"UCC" shall mean, with respect to any jurisdiction, the Uniform
Commercial Code as then in effect in that jurisdiction. References to terms
defined in the UCC shall mean such terms in the UCC as in effect in such
jurisdiction.
"VOTING STOCK" shall mean, with respect to any Subsidiary, any shares
of any class of stock of such Subsidiary having general voting power under
ordinary circumstances to elect a majority of the Board of Directors of such
Subsidiary irrespective of whether at the time stock of any other class or
classes shall have or might have voting power by reason of the happening of
any contingency.
OTHER DEFINITIONAL PROVISIONS.
(a) All terms defined in this Loan Agreement shall
have the above-defined meanings when used in the Notes or any
Loan Documents, certificate, report or other document made or
delivered pursuant to this Loan Agreement, unless the context
therein shall otherwise require.
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(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.
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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
Revolving Credit 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 "Revolving Commitment"):
Revolving
Commitment
Revolving Percentage
Banks Commitment (Rounded)
----- ---------- ----------
First Interstate Bank of Texas, N.A. $35,000,000 28.0%
Bank One, Texas, N.A. 30,000,000 24.0%
LaSalle National Bank 20,000,000 16.0%
The Daiwa Bank, Ltd. 15,000,000 12.0%
Xxxxxx Trust and Savings Bank 10,000,000 8.0%
Comerica Bank-Texas 15,000,000 12.0%
$125,000,000 100.00%
============ =======
No Bank shall be obligated to make any Advance under this
Section 2.01 and Section 2.02 if, immediately after giving
effect thereto, the aggregate amount of all indebtedness and
obligations of Borrowers to such Bank under Section 2.01 and
Section 2.02 exceeds the lesser of (a) such Bank's Revolving
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 "Revolving Borrowing". The
"Total Revolving Credit Commitment" shall be one hundred
twenty-five million dollars ($125,000,000).
(b) BORROWING BASE LIMITATION. The maximum aggregate
amount outstanding at any time under the Revolving Credit Loans
shall not exceed the Revolving Credit Borrowing Base then in
effect.
(c) BORROWING BASE DEFICIENCY. If the aggregate unpaid
principal balance of the Revolving Credit Loans shall at any time
exceed the Revolving Credit Borrowing Base then in effect (the
"Borrowing Base Deficiency"), Borrowers shall pay to Agent within
one (1) Business Day
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of the date of the earlier of the most recent Borrowing Base
Certificate which discloses a Borrowing Base Deficiency or the
date of notification to Borrowers by Agent of the existence of
a Borrowing Base Deficiency an amount equal to such Borrowing
Base Deficiency so that the aggregate unpaid principal balance
of the Revolving Credit Loans (after giving effect to such
payment) is not in excess of the Revolving Credit Borrowing
Base then in effect.
(d) LOAN ORIGINATION FEE. At the time of execution of this
Agreement, Borrowers shall pay to each Bank, including Agent, a
loan origination fee in an amount equal to three sixteenths of
one percent (.1875%) of the Revolving Commitment of each such
Bank.
(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 July 1, 1995 during the period ending on the
Revolving Credit Termination Date a loan commitment fee at the
rate of three eighths of one percent (.375%) per annum
(calculated on the basis of a year consisting of 360 days) of the
average daily amount of each such Bank's Revolving Credit
Commitment which was unused during the immediately preceding
fiscal quarter of Company. Borrowers and Banks acknowledge and
agree that the commitment fees payable hereunder are bona fide
commitment fees and are intended as reasonable compensation to
Banks for committing to make funds available to Borrowers as
described herein and for no other purpose.
2.02. MANNER OF REVOLVING BORROWING.
(a) REQUEST FOR REVOLVING BORROWING. Each request by
Company to Agent for a Revolving Borrowing under Section 2.01
hereof (a "Request for Revolving Borrowing") shall be in writing
and specify the aggregate amount of such requested Revolving
Borrowing, the requested date of such Revolving Borrowing, and,
when the Request for Revolving 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. Company shall
furnish to Agent the Request for Revolving 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 Revolving
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 one hundred thousand dollars
($100,000.00) or any 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 Revolving Borrowing, Company
may (without specifying whether the anticipated Revolving
Borrowing shall be a Floating Base Borrowing or Eurodollar
Borrowing) request that Agent provide Company with the most
recent InterBank Offered Rate available to Agent. Agent shall
endeavor to provide such quoted rates to Company on the date of
such request.
Each Request for Revolving Borrowing shall be irrevocable
and binding on Borrowers and, in respect of the Revolving
Borrowing specified in such Request for Revolving Borrowing,
Borrowers shall indemnify each Bank against any cost, loss or
expense incurred by such Bank as a result of any failure to
fulfill, on or before the date specified for such Revolving
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 Bank to fund the Advance to be made by Bank as
part of such Revolving Borrowing when such Advance, as a result
of such failure, is not made on such date.
After receiving a Request for Revolving 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 Revolving Borrowing
and such Bank's pro rata share of such Revolving Borrowing, the
date on which the Revolving Borrowing is to be made, the interest
option selected and, if applicable, the Interest Period selected.
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(b) FUNDING. Each Bank shall, before 1:00 P.M. (Fort Worth
time) on the date of such Revolving Borrowing specified in the
notice received from Agent pursuant to Section 2.02(a), deposit
such Bank's ratable portion of such Revolving 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 Company 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 Revolving 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 Revolving Borrowing that such Bank will
not make available to the Agent such Bank's ratable portion of
such Revolving Borrowing, the Agent may assume that such Bank has
made such portion available to the Agent on the date of such
Revolving 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 Company 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 Revolving
Borrowing for purposes of this Agreement.
(c) SELECTION OF INTEREST OPTION. Upon making a Request
for Revolving Borrowing under Section 2.02(a) hereof, Company
shall advise Agent as to whether the Borrowing shall be (i) a
Eurodollar Borrowing, in which case Company shall specify the
applicable Interest Period therefor, or (ii) a Floating Base
Borrowing. At least three (3) Eurodollar Business Days prior to
the termination of each Interest Period with respect to a
Eurodollar Borrowing (whether such termination occurs before or
after the Revolving Credit Termination Date) Company 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 Company 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 Company 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,
Company shall have no right to request a Eurodollar Borrowing if
(1) an Event of Default has occurred and is continuing or (2) the
interest rate applicable thereto under Section 2.03 hereof would
exceed the Maximum Rate in effect on the first day of the
Interest Period applicable to such Eurodollar Borrowing.
2.03. INTEREST RATE. The unpaid principal of each Floating
Base Advance shall bear interest from the date of advance until
paid at a rate per annum which shall from day to day, be equal to
the lesser of: (a) the Floating Base Rate or (b) the Maximum
Rate. The unpaid principal of each Eurodollar Advance shall bear
interest from the date of advance until paid at a rate per annum
which shall be equal to the lesser of (a) the sum of the Adjusted
Interbank Rate for the applicable Interest Period, plus one and
65/100 percent (1.65%) or (b) the Maximum Rate. All past due
principal of, and to the extent permitted by applicable law,
interest on the Notes shall bear interest at the Past Due Rate.
Notwithstanding
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the foregoing, the unpaid principal balance of the Notes shall
bear interest as provided in Section 3.04(b) hereof, upon the
occurrence of the circumstances described in such section.
ARTICLE III
NOTES AND INTEREST RATE PAYMENTS
3.01. PROMISSORY NOTES. The Advances under Section 2.02(a)
and Section 2.02(b) hereof by a Bank shall be evidenced by a
promissory note (each a "Note" and collectively, the "Notes") of
Borrowers, which Note shall (i) be dated the date hereof, (ii) be
in the amount of such Bank's Revolving Credit Commitment,
(iii) be payable to the order of such Bank at the office of
Agent, (iv) bear interest in accordance with Section 2.03 hereof,
and (v) be in the form of EXHIBIT "A" attached hereto with blanks
appropriately completed in conformity herewith. Notwithstanding
the principal amount of any Bank's Note as stated on the face
thereof, the amount of principal actually owing on such Note at
any given time shall be in the aggregate of all Advances
theretofore made to Borrowers hereunder, less all payments of
principal theretofore actually received hereunder by Bank. Each
Bank is authorized, but is not required, to endorse on the
schedule attached to its Note appropriate notations evidencing
the date and amount of each Advance as well as the amount of each
payment made by Borrowers hereunder.
3.02. PRINCIPAL PAYMENTS ON REVOLVING CREDIT LOANS.
Subject to Article X, the unpaid principal amount of each Note,
and all accrued but unpaid interest thereon, shall be due and
payable on the Revolving Credit Termination Date.
3.03. PREPAYMENTS.
(a) OPTIONAL PREPAYMENTS. Borrowers may, without premium
or penalty, prepay the principal of the Notes then outstanding,
in whole or in part, at any time or from time to time; provided,
however, that (i) each prepayment of less than the full
outstanding principal balance of the Note shall be in an amount
equal to one hundred thousand dollars ($100,000.00) or an
integral multiple thereof, and (ii) if Borrowers shall prepay the
principal of any Eurodollar Advance on any date other than the
last day of the Interest Period applicable thereto, Borrowers
shall make the payments required by Section 4.05 hereof.
(b) GENERAL PREPAYMENT PROVISIONS. Any prepayment of a
Note hereunder shall be (i) made together with interest accrued
(through the date of such prepayment) on the principal amount
prepaid, and (ii) applied first to accrued interest and then to
principal.
3.04. PAYMENT OF INTEREST ON THE NOTES.
(a) REVOLVING CREDIT NOTES. The interest on the unpaid
principal amount of each Floating Base Advance under each Note
shall be payable monthly as it accrues on the first Business Day
of each month commencing July 1, 1995, and on the Revolving
Credit Termination Date. Interest on the unpaid principal amount
of each Eurodollar Advance under each Note shall be payable on
the last day of such Interest Period. Should any installment of
interest become due and payable on a day other than a Business
Day, the maturity thereof shall be extended to the next
succeeding Business Day.
(b) RECAPTURE RATE. If, on any interest payment date,
Agent does not receive interest (for the account of any Bank) on
such Bank's Note computed (as if no 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
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a rate exceeding the Maximum Rate effective during such
period. The term "Excess Interest Amount" shall mean, on any
date, with respect to the Note of any Bank, the amount by
which (a) the amount of all interest which would have accrued
prior to such date on the principal of such Note (had the
applicable contract rate(s) described herein at all times been
in effect, without limitation by the Maximum Rate) EXCEEDS (b)
the aggregate amount of interest actually paid to such Bank on
such Note on or prior to such date.
3.05. CALCULATION OF INTEREST RATES. Interest on the
unpaid principal of each Eurodollar Advance shall be calculated
on the basis of the actual days elapsed in a year consisting of
360 days. Interest on the unpaid principal of each Floating Base
Advance shall be calculated on the basis of the actual days
elapsed in a year consisting of 360 days.
3.06. MANNER AND APPLICATION OF PAYMENTS. All payments of
principal of, and interest on, any Note shall be made by
Borrowers to Agent before 11:00 a.m. (Fort Worth time), in
Federal or other immediately available funds at Agent's principal
banking office in Fort Worth. 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 Prime
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.
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.
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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 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.
(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 make 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 Bank shall repay to
the purchasing Bank the purchase price to the extent of such
recovery together with an amount equal to such Bank's ratable
share (according to the proportion of (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.
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ARTICLE IV
SPECIAL PROVISIONS FOR EURODOLLAR LOANS
4.01. INADEQUACY OF EURODOLLAR LOAN PRICING. If with
respect to an Interest Period for any Eurodollar Borrowing:
(i) Agent determines that, by reason of circumstances
affecting the Interbank Eurodollar market generally,
deposits in Dollars (in the applicable amounts) are not
being offered to Banks in the Interbank Eurodollar
market for such Interest Period, or
(ii) Majority Banks advise Agent that the Interbank Offered
Rate as determined by Agent will not adequately and
fairly reflect the cost to such Banks of maintaining or
funding the Eurodollar Borrowing for such Interest
Period,
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 Tribunal, 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, 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 Prime 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
Tribunal, 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
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
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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 Prime 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, 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 which has been approved by
Majority Banks) and the proceeds of the Finance Contracts
received by Borrowers as a result of a Securitization.
5.02. GUARANTY DOCUMENTS. To secure the Obligations and the
Notes, each of the Guarantors shall execute and deliver to Agent
the Guaranty Agreements.
ARTICLE VI
CONDITIONS PRECEDENT
6.01. INITIAL ADVANCES. The obligation of each Bank to
make the Revolving Credit Loan herein provided for and the
initial Advances thereunder is subject to the condition precedent
that, on or before the date of such Advance, Agent shall have
received for each Bank the following, each dated the date of such
Advance, in form and substance satisfactory to Agent and such
Bank:
(a) REVOLVING CREDIT NOTES. A duly executed promissory
note, drawn to the order of each Bank, in the form of EXHIBIT A
attached hereto with appropriate insertions.
(b) SECURITY AGREEMENT. Security agreement executed by
Borrowers covering all now existing and hereafter arising Finance
Contracts evidencing Indirect Loans except Finance Contracts
subject to a Securitization which has been approved by Majority
Banks.
(c) FINANCING STATEMENTS. Financing statements executed by
each of Borrowers covering all now existing and hereafter arising
Finance Contracts evidencing Indirect Loans except Finance
Contracts subject to a Securitization which has been approved by
Majority Banks.
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(d) GUARANTY AGREEMENT. The Guaranty Agreement in the form
of EXHIBIT B executed by AmeriCredit Premium Finance, Inc. and
ACF Investment Corp.
(e) AGENT'S FEE AGREEMENT. Agent's fee agreement between
Borrowers and Agent and the agent's fee payable to Agent.
(f) BORROWING BASE. A borrowing base certificate
satisfying the requirements of Section 8.01.
(g) ARTICLES OF INCORPORATION OF BORROWERS. A copy of the
Articles of Incorporation of each of Borrowers and all amendments
thereto.
(h) BYLAWS OF BORROWERS. A certified copy of the bylaws of
each of Borrowers.
(i) RESOLUTIONS OF BORROWERS. Resolutions of each of
Borrowers authorizing the execution of this Loan Agreement duly
adopted by the Board of Directors of each of Borrowers and
accompanied by a certificate of the Secretary of Company stating
that such resolutions are true and correct, have not been altered
or repealed and are in full force and effect.
(j) INCUMBENCY CERTIFICATE OF BORROWERS. An incumbency
certificate with respect to each of Borrowers executed by the
appropriate officers of such Borrower.
(k) CERTIFICATES OF EXISTENCE AND ACCOUNT STATUS FOR
BORROWERS. A current certificate of existence and good standing
from the State of incorporation of each of Borrowers and a
current certificate of account status from the Comptroller of
Public Accounts of the State of Texas.
(l) AUTHORITY TO TRANSACT BUSINESS. Certificate evidencing
the authority of each of Borrowers to conduct or transact
business in the State of Texas and in all other states in which
any of them conducts or transacts business.
(m) ARTICLES OF INCORPORATION OF THE GUARANTORS. A copy of
the Articles of Incorporation of each of the Guarantors and all
amendments thereto.
(n) BYLAWS OF EACH GUARANTOR. A certified copy of the
bylaws of each of the Guarantors.
(o) RESOLUTIONS OF EACH GUARANTOR. Resolutions of each one
of the Guarantors approving the execution of the Guaranty
Agreement duly adopted by the Board of Directors of each of such
Guarantors and accompanied by a certificate of the Secretary of
each of such Guarantors stating that such resolutions are true
and correct, have not been altered or repealed and are in full
force and effect.
(p) INCUMBENCY CERTIFICATES OF GUARANTORS. An incumbency
certificate with respect to each Guarantor executed by the
appropriate officers of each such Guarantor.
(q) CERTIFICATES OF EXISTENCE AND ACCOUNT STATUS FOR EACH
GUARANTOR. A current certificate of existence from the state of
incorporation of each Guarantor and a certificate of account
status from the Comptroller of Public Accounts of the State of
Texas for each Guarantor.
(r) AUTHORITY TO TRANSACT BUSINESS. Certificate evidencing
the authority of each Guarantor to conduct or transact business
in each state in which each such Guarantor conducts or transacts
business.
(s) OPINION OF COUNSEL. An executed opinion of counsel to
Borrowers and each of the Guarantors.
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(t) LOAN ORIGINATION FEES. The loan origination fees
described in Section 2.01(d).
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. Company 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
Company 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 Company a Request for Borrowing in
the form of EXHIBIT "C" or EXHIBIT "D" attached hereto, dated as
of the date of such Advance and signed by an authorized officer
of Company, 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 which causes or could cause a Material Adverse Effect.
(e) REPRESENTATIONS AND WARRANTIES. The representations
and warranties contained in Article VII (other than the
representations and warranties contained in Section 7.07) hereof
shall be true in all material respects on the date of making of
such Advance, with the same force and effect as though made on
and as of that date.
(f) BANKRUPTCY PROCEEDINGS. No proceeding or case under
the United States Bankruptcy Code shall have been commenced by or
against any of Borrowers or any Guarantor.
(g) FINANCING STATEMENTS. If requested and prepared by
Agent but not less frequently than monthly, AmeriCredit Financial
Services, Inc. shall have executed and delivered to Agent
financing statements covering all Finance Contracts evidencing
Indirect Loans except Finance Contracts subject to a
Securitization which has been approved by Majority Banks or a
Lien in favor of a Person other than Agent for the benefit of
Banks.
ARTICLE VII
REPRESENTATIONS AND WARRANTIES
To induce Banks to make the Revolving Credit Loans,
Borrowers represent and warrant to Banks that:
7.01. ORGANIZATION AND GOOD STANDING OF BORROWERS. Each of
Borrowers is a corporation duly organized and existing in good
standing under the laws of the state of its incorporation, is
duly qualified as a foreign corporation and in good standing in
all states in which the failure to so qualify would have a Material
Adverse Effect and has the corporate power and authority to own its
properties and assets and to transact the business in which
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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.
7.05. ENFORCEABLE OBLIGATIONS. This Loan Agreement, the
Notes, the Security Agreement, the Guaranty Agreement and the
other Loan Documents are the legal and binding obligations of the
corporation executing such Loan Documents, enforceable in
accordance with their respective terms, except as limited by
bankruptcy, insolvency or other laws of general application
relating to the enforcement of creditors' rights.
7.06. NO LIENS. Except for Permitted Liens, all of the
properties and assets of Company and each of its 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 March 31, 1995, 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 except for the exclusion of footnotes and normal
adjustments; as of the date hereof, there are no obligations,
liabilities or indebtedness (including contingent and indirect
liabilities and obligations or unusual forward or long-term
commitments) of Company and its Subsidiaries which are
(separately or in the aggregate) material and are not reflected
in such financial statements or disclosed in writing to Agent; no
changes having a Material Adverse Effect have occurred in the
financial condition or business of any Borrower since March 31,
1995.
7.08. FULL DISCLOSURE. There is no material fact that
Borrowers have not disclosed to Agent and Banks which could have
a Material Adverse Effect on the properties, business, prospects
or condition (financial or otherwise) of any of Borrowers or any
of the Guarantors. Neither the financial statements referred to
in Section 7.07 hereof, nor any certificate or statement
delivered herewith or heretofore by any of Borrowers to Banks
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in connection with negotiation of this Loan Agreement, contains any
untrue statement of a material fact or omits to state any
material fact necessary to keep the statements contained herein
or therein from being misleading in any material respect.
7.09. NO DEFAULT. No event has occurred and is continuing
which constitutes an Event of Default or which, with the lapse of
time or giving of notice or both, would constitute an Event of
Default.
7.10. NO LITIGATION. Except as described in EXHIBIT E
attached hereto, there are no actions, suits or legal, equitable,
arbitration or administrative proceedings pending, or to the
knowledge of Borrowers threatened, against any of Borrowers or
any of the Guarantors that would, if adversely determined, have a
Material Adverse Effect.
7.11. REGULATORY DEFECTS. As of the date hereof, Borrowers
have advised Banks, in writing, of all Regulatory Defects of
which any of Borrowers has been advised or has knowledge.
7.12. USE OF PROCEEDS; MARGIN STOCK. The proceeds of the
Revolving Credit Loans will be used by the Borrowers and the
Guarantors solely for working capital for and general corporate
purposes of AmeriCredit Corp., AmeriCredit Financial Services,
Inc. and AmeriCredit Operating Co., Inc. None of such proceeds
will be used for the purpose of purchasing or carrying any
"margin stock" as defined in Regulation U or G of the Board of
Governors of the Federal Reserve System (12 C.F.R. Part 221 and
207), or for the purpose of reducing or retiring any indebtedness
which was originally 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. Borrowers do not 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 Company and
its Subsidiaries does not exceed 25% of the aggregate value of
all of the assets of Company and its Subsidiaries.
7.13. NO FINANCING OF CORPORATE TAKEOVERS. Except as
permitted by Section 9.07, no proceeds of the Revolving Credit
Loans will be used to acquire any security in any transaction
which is subject to Section 13 or 14 of the Securities Exchange
Act of 1934, including particularly (but without limitation)
Sections 13(d) and 14(d) thereof.
7.14. TAXES. Except as previously disclosed to Bank, all
tax returns required to be filed by Company and its 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
Company or any of its Subsidiaries or upon any of its or their
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 000 Xxxxxx Xxxxxx, Xxxx Xxxxx, Xxxxxxx Xxxxxx,
Xxxxx 00000, and Borrowers maintain their principal records and
books at such address.
7.16. ERISA. (a) No Reportable Event has occurred and is
continuing with respect to any Plan; (b) PBGC has not instituted
proceedings to terminate any Plan; (c) neither the Borrowers, any
member of the Controlled Group, nor any duly appointed
administrator of a Plan (i) has incurred any liability to PBGC
with respect to any Plan other than for premiums not yet due or
payable or (ii) has instituted or intends to institute
proceedings to terminate any Plan under Section 4041 or 4041A of
ERISA or withdraw from any Multi-Employer Pension Plan (as that
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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 F,
Company and each of its Subsidiaries are in compliance in all
material respects with all laws, rules, regulations, ordinances,
orders and decrees which are applicable to Company, any of its
Subsidiaries or any of their respective properties or business,
the failure to comply with which could have a Material Adverse
Effect, including all Environmental Laws. Neither Company nor
any Subsidiary has been notified by any Governmental Authority
that Company or any Subsidiary has failed to comply with any such
laws, rules, regulations, orders or decrees, the failure to
comply with which would result in a Material Adverse Effect, nor
has Company or any Subsidiary been notified of any Environmental
Claim except as described in EXHIBIT G.
7.18. GOVERNMENT REGULATION. No Borrower nor any of the
Guarantors are subject to regulation under the Public Utility
Holding Company Act of 1935, the Federal Power Act, the
Investment Company Act of 1940, the Interstate Commerce Act (as
any of the preceding acts have been amended), or any other law
(other than Regulation X) which regulates the incurring by
Company or any of its Subsidiaries of indebtedness, including but
not limited to laws relating to common contract carriers or the
sale of electricity, gas, steam, water, or other public utility
services.
7.19. INSIDER. Company is not, and no Person having
"control" (as that term is defined in 12 U.S.C. Section 375(b)(5)
or in regulations promulgated pursuant thereto) of Company is,
an "executive officer", "director", or "person who directly or
indirectly or in concert with one or more persons owns, controls,
or has the power to vote more than 10% of any class of voting
securities" (as those terms are defined in 12 U.S.C. Section 375(b)
or in regulations promulgated pursuant thereto) of any Bank, of a
bank holding company of which any Bank is a subsidiary, or of any
subsidiary of a bank holding company of which Bank is a subsidiary,
or of any bank at which Bank maintains a correspondent account, or
of any bank which maintains a correspondent account with any Bank.
7.20. SUBSIDIARIES. Company directly owns all of the
capital stock of AmeriCredit Financial Services, Inc.,
AmeriCredit Operating Co., Inc., AmeriCredit Premium Finance,
Inc. and ACF Investment Corp., in each case free and clear from
all liens, security interests, charges and encumbrances.
7.21. SOLVENCY. Excluding intercompany indebtedness,
Company and each of its Subsidiaries now have capital sufficient
to carry on their businesses and transactions and all business
and transactions in which they are about to engage, and for which
they have projected, and are now solvent and able to pay their
debts as they mature and each of Company and its Subsidiaries now
owns property having a value, both at fair valuation and at
present fair saleable value greater than the amount required to
pay its respective debts. Excluding intercompany indebtedness
and without giving effect to the Guaranty Agreement, no Guarantor
is "insolvent" on the date hereof (that is, the sum of such
Guarantor's absolute and contingent liabilities does not exceed
the fair market value of such Guarantor's assets). Each
Guarantor has received or will receive good and fair
consideration for its liability and obligations incurred in
connection with the Guaranty Agreement, and the incurrence of its
liability under the Guaranty Agreement in return for such
consideration may reasonably be expected to benefit each
Guarantor, directly or indirectly.
7.22. ENVIRONMENTAL MATTERS. Except as described in
EXHIBIT "G" attached hereto, none of the properties of Company or
its Subsidiaries which are presently owned has been used at any
time during their ownership to generate, manufacture, refine,
transport, treat, store, handle, dispose, transfer, produce,
process, or in any manner deal with Hazardous Materials. Except
as described in EXHIBIT "G" attached hereto, there are no past,
pending or, to the best of Company's knowledge, threatened or
potential Environmental Claims against Company or any of its
Subsidiaries or with respect to any properties presently owned or
controlled by Company or any of its Subsidiaries. Except as
described in EXHIBIT "G" attached hereto, there are no
underground storage tanks located on any of the properties
presently owned or controlled by Company or any of its
Subsidiaries and, to Company's best knowledge, there never have
been any underground storage tanks located on any of the
properties presently owned or controlled by Company or any
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of its Subsidiaries, and the Company has received no actual
(as contrasted with constructive) notification of any
Environmental Claims relating to any property contiguous to
any property owned or controlled by Company or any of its
Subsidiaries.
7.23. ENDORSEMENT OF INDIRECT LOANS. Borrowers have
endorsed to Agent all Finance Contracts evidencing Indirect Loans
except Finance Contracts that are subject to a Securitization
approved by Majority Banks or subject to a security interest in
favor of a Person other than Agent for the benefit of Banks.
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 thirty (30)
days after the end of each month, Borrowers shall furnish to
Agent a certificate in form satisfactory to Agent executed by the
chief financial officer or controller of each of Borrowers
reflecting in detail a computation of the Revolving Credit
Borrowing Base as of the end of such month.
8.02. COMPLIANCE CERTIFICATES. Within thirty (30) days
after the end of each calendar month hereafter, Borrowers shall
deliver to Agent a certificate executed by the chief financial
officer or controller of each of Borrowers stating that a review
of its activities during such month has been made under his
supervision and that such Borrower has observed, performed and
fulfilled each and every obligation and covenant contained herein
and is not in default under any of the same or, if any such
default shall have occurred, specifying the nature and status
thereof. At the same time compliance and other certificates are
furnished to the collateral agent for each Securitization,
Borrowers shall deliver to Agent copies of the compliance and
other certificates furnished such collateral agent for each such
Securitization.
8.03. MONTHLY STATEMENTS. Within thirty (30) days after
the end of each calendar month, Company shall furnish Agent
copies of the consolidated balance sheet of Company and its
Subsidiaries as of the close of such calendar month, and
consolidated statements of income and of cash flow of Company and
its Subsidiaries for the portion of the year then ended, 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 of cash flow of Company and its Subsidiaries for
the portion of the year then ended.
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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, all in reasonable detail and accompanied by an
opinion thereon (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.
8.06. SEC AND OTHER REPORTS. Promptly upon transmission thereof,
Company shall furnish Agent with copies of all financial statements, proxy
statements, notices and reports which Company sends to its public security
holders and copies of all registration statements (without exhibits) and all
reports which it files with the Securities and Exchange Commission (or any
governmental body or agency succeeding to the functions of the Securities and
Exchange Commission).
8.07. DELINQUENCIES. Within thirty (30) days after the end of each
month, Borrowers shall furnish to Agent (a) a summary report reflecting the
amount of all delinquencies and charge-offs for Indirect Loans, the
percentage of Indirect Loans which are delinquent, and the percentage of
Indirect Loans which have been charged off and (b) a summary report
reflecting the amount of all Indirect Loans that are past due by cycle.
8.08. LIST OF INDIRECT LOANS. Within thirty (30) days after the
end of each calendar month, Borrowers shall furnish to Agent two (2) copies
of a list of all Finance Contracts and promissory notes evidencing Indirect
Loans (other than Finance Contracts subject to a Securitization which has
been approved by Majority Banks) that reflects the name, address and account
number of each Obligor and the unpaid principal balance of each Finance
Contract and promissory note as of the end of such preceding calendar month.
8.09. CHARGE OFF VINTAGE REPORTS. Within thirty (30) days after
the end of each month, Borrowers shall furnish Agent with a delinquency and
charge-off vintage report reflecting the percentage of 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 with a notes receivable
rollforward report reflecting all originations, collections, charge-offs,
pay-offs and ending balances for 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, 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
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,
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or any claim or controversy which might become the subject of litigation,
against such Borrower or affecting any of such Borrower's property, if such
litigation or potential litigation might be expected to have or could
reasonably be expected to have, in the event of any unfavorable outcome, a
Material Adverse Effect on such Borrower's financial condition or business or
might or could reasonably be expected to cause an Event of Default; and (v)
any material change in underwriting standards or criteria and (vi) a change
in the executive officers of any of Borrowers.
8.14. INSURANCE. Each Borrower shall maintain on its properties
insurance of responsible and reputable companies in such amounts and covering
such risks as is prudent and is usually carried by companies engaged in
businesses similar to that of such Borrower; each Borrower shall furnish
Agent, on request, with certified copies of insurance policies or other
appropriate evidence of compliance with the foregoing covenant.
8.15. LICENSES. Borrowers shall preserve and maintain all material
licenses, privileges, franchises, certificates and the like necessary for the
operation of their respective business.
8.16. COMPLIANCE WITH LOAN DOCUMENTS. Borrowers will comply in all
material respects with any and all covenants and provisions of this Loan
Agreement, the Notes and all other of the Loan Documents.
8.17. COMPLIANCE WITH MATERIAL AGREEMENTS. Borrowers will comply in
all material respects with all material agreements, indentures, mortgages or
documents binding on it or affecting their properties or business where the
failure to so comply would have a Material Adverse Effect.
8.18. OPERATIONS AND PROPERTIES. Borrowers will act prudently and
in accordance with customary industry standards in managing or operating its
assets, properties, business and investments; Borrowers will keep in good
working order and condition, ordinary wear and tear excepted, all of their
respective assets and properties which are necessary to the conduct of its
business except for worn out or obsolete assets which have been replaced.
8.19. BOOKS AND RECORDS; ACCESS. Upon prior written notice,
Borrowers will give any representative of any Bank access during all business
hours to, and permit such representative to examine, copy or make excerpts
from, any and all books, records and documents in the possession of Borrowers
and relating to its affairs, and to inspect any of the properties of
Borrowers. 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.
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8.24. GUARANTY OF SUBSIDIARY CORPORATIONS. Company shall cause each
Subsidiary formed after the date of this Agreement to execute a Guaranty of
the Notes within ten (10) days after the date of formation of such Subsidiary
except any special purpose Subsidiary formed solely for the purpose of
consummating a Securitization approved by Majority Banks.
8.25. FINANCING STATEMENTS. If requested by Agent, each of
Borrowers shall execute and deliver to Agent new financing statements in form
satisfactory to Agent at the time it commences conducting business in any
state in which it has not previously conducted business.
8.26. FIELD TESTS. Borrowers shall from time to time permit Banks
to conduct field examinations at the expense of Banks. Borrowers shall
permit Agent to conduct a field examination annually at the expense of
Borrowers.
8.27. DELIVERY OF INDIRECT LOANS. At the request of Agent or
Majority Banks after the occurrence of an Event of Default, Borrowers shall
promptly deliver to Agent all Finance Contracts and promissory notes
evidencing Indirect Loans duly endorsed or assigned to Agent.
8.28. INSPECTION OF INDIRECT LOANS. Borrowers shall permit Agent
and its officers and representatives to inspect all Finance Contracts and
promissory notes evidencing Indirect Loans once each month during normal
business hours.
8.29. FURTHER ASSURANCES. Upon request of the Agent, Borrowers
agree to promptly cure any defects in the creation, issuance, execution and
delivery of this Loan Agreement or in the Loan Documents. Each of Borrowers,
at their expense, will further promptly execute and deliver to Agent upon
request all such other and further documents, agreements and instruments in
compliance with or accomplishment of the covenants and agreements of
Borrowers hereunder, or to further evidence and more fully describe the
obligations of Borrowers hereunder, or to correct any omissions herein, or to
more fully state the obligations set out herein.
ARTICLE IX
NEGATIVE COVENANTS
So long as Banks have any commitment to make Advances hereunder, and
until full payment of the Notes and the performance of the Obligation,
Company covenants and agrees that neither Company nor any of its Subsidiaries
will, unless Majority Banks otherwise consent in writing:
9.01. RATIO OF INDEBTEDNESS TO TANGIBLE NET WORTH. Permit the ratio
of the difference between the total amount of the Indebtedness and cash
balances of Company and its Subsidiaries to the Tangible Net Worth of Company
and its Subsidiaries on a Consolidated basis to be more than 1.8 to 1.0 at
any time; or
9.02. CASH FLOW. Permit its Cash Flow to be less than eight million
dollars ($8,000,000) during any twelve (12) month period; or
9.03. FIXED CHARGE COVERAGE RATIO. Permit the Fixed Charge Coverage
Ratio computed on a trailing twelve (12) month basis to be less than 2.2 to
1.0 at any time; or
9.04. CAPITAL EXPENDITURES. Permit the aggregate amount of all
Capital Expenditures of Company and its Subsidiaries to exceed $2,500,000
during any trailing 12 month period; or
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9.05. LOSS. Incur any net loss on a consolidated basis determined
in accordance with GAAP during any trailing three (3) month period; or
9.06. LIMITATION ON ADDITIONAL INDEBTEDNESS. Incur or assume or
permit any of its Subsidiaries to incur or assume any Indebtedness for
borrowed money, except for (i) the indebtedness evidenced by the Notes; (ii)
trade debt incurred in the ordinary course of business; (iii) up to but not
exceeding one million dollars ($1,000,000) in the aggregate at any time; and
(iv) indebtedness arising from Securitizations approved by Majority Banks; or
9.07. RESTRICTIONS ON DIVIDENDS ON CAPITAL STOCK. Pay any
dividends or make any distributions on or with respect to its outstanding
capital stock or purchase, redeem or purchase any of it capital stock in
excess of the lesser of fifty percent (50%) of Net Income or $6,000,000 in
the aggregate during any trailing 12 month period; or
9.08. 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
9.09. DELINQUENT LOANS TO NET INDIRECT LOANS. Permit the ratio of
Delinquent Loans to Net Indirect Loans to be greater than .045 to 1.0 at any
time; or
9.10. LIQUIDATION, MERGERS, CONSOLIDATION AND DISPOSITION OF
SUBSTANTIAL ASSETS. Liquidate, dissolve or reorganize; or merge or
consolidate with any other corporation or entity; or acquire or permit any of
its Subsidiaries to acquire all or substantially all of the assets of, any
other company, firm or association except for the purchase of loans or
Finance Contracts; or make or permit any of its Subsidiaries to make any
other substantial change in its capitalization or its business other than a
Securitization approved by Majority Banks; or
9.11. 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
9.12. BUSINESS ACQUISITIONS. Purchase, lease or otherwise acquire
all or substantially all of the assets of any other corporation, partnership
or person except the purchase of loans or Finance Contracts; or
9.13. 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; or
9.14. 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; or
9.15. SALE OF ACCOUNTS RECEIVABLE. Sell or permit any Subsidiary to
sell any of its accounts receivable, with or without recourse; or
9.16. SECURITIZATION AGREEMENT. Enter into any Securitization or
similar agreement; or
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9.17. LOAN LOSS RESERVE RATIO. Permit the ratio of the Loan Loss
Reserve to Net Indirect Loans to be less than .06 to 1.0 at any time.
If any action or failure to act by Company or any Subsidiary violates any
covenant or obligations of Borrowers contained herein, then such violation
shall not be excused by the fact that such action or failure to act would
otherwise be required or permitted by any covenant (or exception to any
covenant) other than the covenant violated.
ARTICLE X
EVENTS OF DEFAULT; REMEDIES UPON EVENT OF DEFAULT
10.01. EVENTS OF DEFAULT. An "Event of Default" shall exist if any one
or more of the following events (herein collectively called "Events of
Default") shall occur and be continuing:
(a) Borrowers shall fail to pay when due any principal of, or interest
on any Note, or any other fee or payment due hereunder or under any of the
Loan Documents; or
(b) Any representation or warranty made under this Loan Agreement, or
any of the Loan Documents or in any certificate or statement furnished to or
made to Banks pursuant hereto or in connection herewith shall prove to be
untrue or inaccurate in any material respect as of the date on which such
representation or warranty is made; or
(c) Failure of any of Borrowers to observe, keep and perform any of the
covenants or agreements in Sections 8.01, 8.02, 8.03, 8.04, 8.05, 8.06, 8.07,
8.08, 8.09, 8.10, 8.11 or 8.12 and the continuance of such failure for a
period of at least ten (10) days after receipt of written notice from Agent
to Borrowers specifying such failure; or
(d) Failure or refusal of any of Borrowers to observe, keep and perform
any of the covenants, agreements and obligations hereunder or any of the Loan
Documents (except the covenants in Sections 8.01, 8.02, 8.03, 8.04, 8.05,
8.06, 8.07, 8.08, 8.09, 8.10, 8.11 and 8.12) and the continuance of such
failure or refusal for a period of twenty (20) days after receipt of written
notice from Agent to Borrowers specifying such failure; or
(e) Company or any of its Subsidiaries shall (i) apply for or consent
to the appointment of a receiver, custodian, trustee, intervenor or
liquidator of all or a substantial part of its assets, (ii) voluntarily
become the subject of a bankruptcy, reorganization or insolvency proceeding
or be insolvent or admit in writing that it is unable to pay its debts as
they become due, (iii) make a general assignment for the benefit of
creditors, (iv) file a petition or answer seeking reorganization or an
arrangement with creditors or to take advantage of any bankruptcy or
insolvency laws, (v) file an answer admitting the material allegations of, or
consent to, or default in answering, a petition filed against it in any
bankruptcy, reorganization or insolvency proceeding, or (vi) become the
subject of an order for relief under any bankruptcy, reorganization or
insolvency proceeding; or
(f) An order, judgment or decree shall be entered by any court of
competent jurisdiction or other competent authority approving a petition
appointing a receiver, custodian, trustee, intervenor or liquidator of
Company or any of its Subsidiaries or of all or substantially all of its
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 Company or any of its Subsidiaries seeking or instituting a
bankruptcy, insolvency, reorganization, rehabilitation or receivership
proceeding of Company or any of its Subsidiaries, and such petition or
complaint shall not have been dismissed within sixty (60) days; or
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(g) Any final judgment(s) for the payment of money in excess of the sum
of two hundred thousand dollars ($200,000) in the aggregate shall be rendered
against Company or any Subsidiary and such judgment or judgments shall not be
satisfied or discharged at least ten (10) days prior to the date on which any
of its assets could be lawfully sold to satisfy such judgment; or
(h) There shall occur any change in the condition (financial or
otherwise) of Company or any Subsidiary which, in the reasonable opinion of
Majority Banks, has a Material Adverse Effect; or
(i) The occurrence of a default or an event of default under any
Securitization or similar agreement to which Company or any of its
Subsidiaries is a party; or
(j) Default shall occur under any Indebtedness for borrowed money
issued, assumed or guaranteed by the Company or any of its 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(e) or Section 10.01(f), the entire
amount of principal of, and interest then accrued on, the Notes shall
automatically be immediately due and payable, without demand, notice of
default, notice of acceleration or notice of any kind, all of which Borrowers
hereby expressly waive and the Revolving Commitment of each of the Banks
shall terminate.
Borrowers hereby designate and appoint Agent as its attorney-in-fact to
endorse to Agent for the benefit of Banks after the occurrence of an Event of
Default all checks deposited in the lockbox with Agent to which payments on
the Eligible Finance Contracts pledged to Agent and Banks are sent. This
power of attorney is irrevocable and is coupled with an interest.
10.03. PERFORMANCE BY BANKS. Should any of Borrowers fail to perform
in any material respect any covenant, duty or agreement contained herein or
in any of the Loan Documents, Agent or Banks may, at their option, perform
or attempt to perform such covenant, duty or agreement on behalf of the
Borrowers following written notice to Borrowers of such intention to perform.
In such event, Borrowers shall, at the request of Agent or Banks, promptly
pay any amount reasonably expended by Agent or Banks in performance or
attempted performance to Agent at its principal office in Fort Worth, Texas,
together with interest thereon at the Past Due Rate from the date of such
expenditure until paid. Notwithstanding the foregoing, it is expressly
understood that neither Banks nor Agent assume any liability or
responsibility (except liability attributable to their gross negligence or
willful misconduct) for the performance of any duties of Borrowers hereunder
or under any of the Loan Documents or other control over the management and
affairs of the Borrowers.
10.04. REMEDIES CUMULATIVE. All covenants, conditions, provisions,
warranties, indemnities and other undertakings of Borrowers contained in this
Agreement, or in any document referred to herein or in any agreement
supplementary hereto or in any of the Loan Documents shall be deemed
cumulative to and not in derogation or substitution of any of the terms,
covenants, conditions or agreements of Borrowers contained herein. The
failure
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or delay of Agent or Banks to exercise or enforce any rights, liens, powers
or remedies hereunder or under any of the aforesaid agreements or other
documents against any security shall not operate as a waiver of such liens,
rights, powers and remedies, but all such rights, powers and remedies shall
continue in full force and effect until the loans evidenced by the Notes and
the entire Obligation of Borrowers to Banks shall have been fully satisfied,
and all rights, liens, powers and remedies herein provided for are cumulative
and none are exclusive.
ARTICLE XI
ARBITRATION PROGRAM
11.01. BINDING ARBITRATION. Upon the demand of any party, whether made
before or after the institution of any judicial proceeding, any Dispute (as
defined below) shall be resolved by binding arbitration in accordance with
the terms of this Arbitration Program. A "Dispute" shall include any action,
dispute, claim, or controversy of any kind (e.g., whether in contract or in
tort, statutory or common law, legal or equitable, or otherwise) now existing
or hereafter arising between the parties in any way arising out of,
pertaining to or in connection with (1) the agreement, document or instrument
to which this Arbitration Program is attached or in which it is referred to
or any related agreements, documents, or instruments (the "Documents"), (2)
all past, present or future loans, notes instruments, drafts, credits,
accounts, deposit accounts, safe deposit boxes, safekeeping agreements,
guarantees, letters of credit, goods or services, or other transactions,
contracts or agreements of any kind whatsoever, (3) any past, present or
future incidents, omissions, acts, practices, or occurrences causing injury
to either party whereby the other party or its agents, employees, or
representatives may be liable, in whole or in part, or (4) any aspect of the
past, present or future relationships of the parties including any agency,
independent contractor or employment relationship but excluding claims for
workers' compensation and unemployment benefits ("Relationship"). Any party
to this Arbitration Program may, by summary proceedings (e.g., a plea in
abatement or motion to stay further proceedings), bring any action in court
to compel arbitration of any Disputes. Any party who fails or refuses to
submit to binding arbitration following a lawful demand by the opposing party
shall bear all costs and expenses incurred by the opposing party in
compelling arbitration of any Dispute. The parties agree that by engaging in
activities with or involving each other as described above, they are
participating in transactions involving interstate commerce.
11.02. GOVERNING RULES. All Disputes between the parties shall be
resolved by binding arbitration administered by the American Arbitration
Association (the "AAA") in accordance with, and in the following priority:
(1) the terms of this Arbitration Program, (2) the Commercial Arbitration
Rules of the AAA, (3) the Federal Arbitration Act (Title 9 of the United
States Code) and (4) to the extent the foregoing are inapplicable,
unenforceable or invalid, the laws of the State of Texas. The validity and
enforceability of this Arbitration Program shall be determined in accordance
with this same order of priority. In the event of any inconsistency between
this Arbitration Program and such rules and statutes, this Arbitration
Program shall control. Judgment upon any award rendered hereunder may be
entered in any court having jurisdiction; provided, however, that nothing
contained herein shall be deemed to be a waiver by any party that is a bank
of the protections afforded to it under 12 U.S.C. Section 91 or Texas Banking
Code Art. 342-609.
11.03. NO WAIVER; PRESERVATION OF REMEDIES; MULTIPLE PARTIES. No
provision of, nor the exercise of any rights under, this Arbitration Program
shall limit the right of any party, during any Dispute to seek, use, and
employ ancillary or preliminary remedies, judicial or otherwise, for the
purpose of realizing upon, preserving, protecting, foreclosing or proceeding
under forcible entry and detainer for possession of any real or personal
property, and any such action shall not be deemed an election of remedies.
Such rights shall include, without limitation, rights and remedies relating
to (1) foreclosing against any real or personal property collateral or other
security by the exercise of a power of sale under a deed of trust, mortgage,
or other security agreement or instrument, or applicable law, (2) exercising
self-help remedies (including setoff rights) or (3) obtaining provisional or
ancillary remedies such as injunctive relief, sequestration, attachment,
garnishment, or the appointment of a receiver from a court having
jurisdiction. Such rights can be exercised at any time except to the extent
such action is contrary to a final award or decision in any arbitration
proceeding. The institution and maintenance of an action for judicial relief
or pursuit of provisional or ancillary remedies or exercise of self-help
remedies shall not constitute a waiver of the right of any party, including
the plaintiff, to submit the Dispute to arbitration nor render inapplicable
the compulsory arbitration provisions hereof.
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In Disputes involving indebtedness or other monetary obligations, each party
agrees that the other party may proceed against all liable persons, jointly
and severally, or against one or more of them, less than all, without
impairing rights against other liable persons. No party shall be required to
join the principal obligor or any other liable persons (e.g., sureties or
guarantors) in any proceeding against a particular person. A party may
release or settle with one or more liable persons as the party deems fit
without releasing or impairing rights to proceed against any persons not so
released.
11.04. STATUTE OF LIMITATIONS. All statutes of limitation shall apply
to any proceeding in accordance with this Arbitration Program.
11.05. ARBITRATOR POWERS AND QUALIFICATIONS; AWARDS; MODIFICATION OR
VACATION OF AWARD. Arbitrators are empowered to resolve Disputes by summary
rulings substantially similar to summary judgments and motions to dismiss.
Arbitrators shall resolve all Disputes in accordance with the applicable
substantive law. Any arbitrator selected shall be required to be a
practicing attorney licensed to practice law in the State of Texas and shall
be required to be experienced and knowledgeable in the substantive laws
applicable to the subject matter of the Dispute. With respect to a Dispute
in which the claims or amounts in controversy do not exceed $1,000,000, a
single arbitrator shall be chosen and shall resolve the Dispute. In such
case, the arbitrator shall be required to make specific, written findings of
fact, and shall have authority to render an award up to but not to exceed
$1,000,000, including all damages of any kind whatsoever, including costs,
fees and expenses. A Dispute involving claims or amounts in controversy
exceeding $1,000,000 shall be decided by a majority vote of a panel of three
arbitrators (an "Arbitration Panel"), the determination of any two of the
three arbitrators constituting the determination of the Arbitration Panel,
provided, however, that all three Arbitrators on the Arbitration Panel must
actively participate in all hearings and deliberations. Arbitrators,
including any Arbitration Panel, may grant any remedy or relief deemed just
and equitable and within the scope of this Arbitration Program and may also
grant such ancillary relief as is necessary to make effective any award.
Arbitration Panels shall be required to make specific, written findings of
fact and conclusions of law, and in such proceedings before an Arbitration
Panel only, the parties shall have the additional right to seek vacation or
modification of any award of an Arbitration Panel that is based in whole, or
in part, on an incorrect or erroneous ruling of law by appeal to a Federal or
State Court of Appeals, following the entry of judgment on the award in
Federal or State District Court, as appropriate. For these purposes, the
award and judgment entered by the Federal or State District Court shall be
considered to be the same as the award and judgment of the Arbitration Panel.
All requirements applicable to appeals from any Federal or State District
Court judgment shall be applicable to appeals from judgments entered on
decisions rendered by Arbitration Panels. The Appellate Courts shall have
the power and authority to vacate or modify an award based upon a
determination that there has been an incorrect or erroneous ruling of law.
The Appellate Court shall also have the power to reverse and/or remand the
decision of an Arbitration Panel. Subject to the foregoing, the determination
of an Arbitrator or Arbitration Panel shall be binding on all parties and
shall not be subject to further review or appeal except as otherwise allowed
by applicable law.
11.06. OTHER MATTERS AND MISCELLANEOUS. To the maximum extent
practicable, the AAA, the Arbitrator (or the Arbitration Panel, as
appropriate) and the parties shall take any action necessary to require that
an arbitration proceeding hereunder be concluded within 180 days of the
filing of the Dispute with the AAA. Arbitration proceedings hereunder shall
be conducted at one of the following locations in the State of Texas agreed
to in writing by the parties or, in the absence of such agreement, selected
by the AAA: (1) Dallas; or (2) Fort Worth. Arbitrators shall be empowered to
impose sanctions and to take such other actions as they deem necessary to the
same extent a judge could do pursuant to the Federal Rules of Civil
Procedure, the Texas Rules of Civil Procedure and applicable law. With
respect to any Dispute, each party agrees that all discovery activities shall
be expressly limited to matters directly relevant to the Dispute and any
Arbitrator, Arbitration Panel and the AAA shall be required to fully enforce
this requirement. This Arbitration Program constitutes the entire agreement
of the parties with respect to its subject matter and supersedes all prior
discussions, arrangements, negotiations, and other communications on dispute
resolution. The provisions of this Arbitration Program shall survive any
termination, amendment, or expiration of the Documents or the Relationship,
unless the parties otherwise expressly agree in writing. To the extent
permitted by applicable law, Arbitrators, including any Arbitration Panel,
shall have the power to award recovery of all costs and fees (including
attorneys' fees, administrative fees, and arbitrators' fees) to the
prevailing party. This Arbitration Program may be amended, changed, or
modified only by the express provisions of a writing which specifically
refers to this Arbitration Program and which is signed by all the parties
hereto. If any term, covenant, condition, or provision of this Arbitration
Program is found to be unlawful, invalid or unenforceable, such illegality or
invalidity
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or unenforceability shall not affect the legality, validity, or
enforceability of the remaining parts of this Arbitration Program, and all
such remaining parts hereof shall be valid and enforceable and have full
force and effect as if the illegal, invalid, or unenforceable part had not
been included. The captions or headings in this Arbitration Program are for
convenience of reference only and are not intended to constitute any part of
the body or text of this Arbitration Program. Each party agrees to keep all
Disputes and arbitration proceedings strictly confidential, except for
disclosures of information required in the ordinary course of business of the
parties or by applicable law or regulation. To the maximum extent permitted
by law, this Arbitration Program modifies and supersedes any and all prior
agreements for arbitration between the parties.
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, 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
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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 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 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 and such instructions shall be binding upon
all Banks and all holders of Notes; PROVIDED, HOWEVER, that Agent shall not
be required to take any action which exposes Agent to personal liability or
which is contrary to this Loan Agreement or applicable law.
12.07. NOTICES OF EVENT OF DEFAULT. In the event that Agent shall have
acquired actual knowledge of any Event of Default or of an event which, with
the giving of notice or the lapse of time, or both, would constitute an Event
of Default, Agent shall promptly give written notice thereof to the other
Banks.
12.08. INDEPENDENT INVESTIGATION. Each of the Banks severally
represents and warrants to Agent that it has made its own independent
investigation and assessment of the financial condition and affairs of the
Borrowers in connection with the making and continuation of its participation
in the Loans hereunder and has not relied exclusively on any information
provided to such Bank by Agent in connection herewith, and each Bank
represents, warrants and undertakes to Agent that it shall continue to make
its own independent appraisal of the creditworthiness of the Borrowers while
the Loans are outstanding or its commitment hereunder is in force.
12.09. INDEMNIFICATION. Banks agree to indemnify Agent (to the extent
not reimbursed by Borrowers), ratably according to the proportion that the
respective principal amounts of the Note held by each of them bears to the
sum of the aggregate principal amount of the Notes, from and against any and
all liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses, or disbursements of any kind or nature whatsoever
which may be imposed on, incurred by or asserted against Agent in any way
relating to or arising out of the Loan Documents or any action taken or
omitted by Agent under the Loan Documents, provided that no Bank shall be
liable for any portion of such liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements
resulting from Agent's gross negligence or willful misconduct.
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 by Agent. Agent shall have no
obligation to repurchase any interest from any Bank.
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12.12. BANK'S REPRESENTATIONS. Each Bank represents and warrants to
Agent and the other Banks that: (a) it is engaged in the business of
entering into commercial lending transactions (including transactions of the
nature contemplated herein) and can bear the economic risk related to the
same; and (b) it does not consider the obligations hereunder to constitute
the "purchase" or "sale" of a "security" within the meaning of any federal or
state securities statute or law, or any rule or regulation under any of the
foregoing.
12.13 Co-Agent. It is expressly understood and agreed that BANK ONE,
TEXAS, N.A. shall have no responsibility or obligations as a co-agent
hereunder other than its obligations as a Bank under this Loan Agreement.
ARTICLE XIII
MISCELLANEOUS
13.01. WAIVER. No failure to exercise, and no delay in exercising, on
the part of any Bank, any right hereunder shall operate as a waiver thereof,
nor shall any single or partial exercise thereof preclude any other further
exercise thereof or the exercise of any other right. The rights of Banks
hereunder and under the Loan Documents shall be in addition to all other
rights provided by law. No notice or demand given in any case shall
constitute a waiver of the right to take other action in the same, similar or
other instances without such notice or demand.
13.02. NOTICES. Any notices or other communications required or
permitted to be given by this Agreement or any other documents relating to
the loans evidenced by the Notes (the "Loan Documents") must be given in
writing and personally delivered, sent by telecopy or telex (answerback
received) or mailed by prepaid certified or registered mail, return receipt
requested, to the party to whom such notice or communication is directed at
the address of such party as follows:
Borrowers: AmeriCredit Corp.
000 Xxxxxx Xxxxxx
Xxxx Xxxxx, Xxxxx 00000
Attn: Chief Financial Officer
FAX No. (000) 000-0000
AmeriCredit Financial Services, Inc.
000 Xxxxxx Xxxxxx
Xxxx Xxxxx, Xxxxx 00000
Attn: Chief Financial Officer
FAX No. (000) 000-0000
AmeriCredit Operating Co., Inc.
000 Xxxxxx Xxxxxx
Xxxx Xxxxx, Xxxxx 00000
Attn: Chief Financial Officer
FAX No. (000) 000-0000
Agent: First Interstate Bank of Texas, N.A.
000 X. Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxx Xxxxx, Xxxxx 00000
Attn: Xxx Xxxxx
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FAX No. (000) 000-0000
Any such notice or other communication shall be deemed to have been given on
the date it is personally delivered or sent by telecopy or telex as aforesaid
or, if mailed, on the second day after it is mailed as aforesaid (whether
actually received or not). Any party may change its address for purposes of
this Loan Agreement by giving notice of such change to all other parties
pursuant to this Section 13.02. Any notice given hereunder by Borrowers to
Agent shall constitute notice to all of the Banks.
13.03. PAYMENT OF EXPENSES. Borrowers agree to pay all costs and
expenses of Banks (including, without limitation, the reasonable attorneys'
fees of Banks' outside legal counsel) incurred by Banks in connection with
the preservation and enforcement of Banks' rights under this Loan Agreement,
the Notes, and/or the other Loan Documents, and all reasonable costs and
expenses of Banks (including without limitation the reasonable fees and
expenses of Banks' outside legal counsel) in connection with the negotiation,
preparation, execution and delivery of this Loan Agreement, the Notes, and
the other Loan Documents and any and all amendments, modifications and
supplements thereof or thereto.
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
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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 approved by Majority Banks 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
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applicable federal laws of the United States of America shall govern the
validity, construction, enforcement and interpretation of this Loan Agreement
and all of the other Loan Documents.
13.07. INVALID PROVISIONS. If any provision of any Loan Document is
held to be illegal, invalid or unenforceable under present or future laws
during the term of this Loan Agreement, such provision shall be fully
severable; such Loan Document shall be construed and enforced as if such
illegal, invalid or unenforceable provision had never comprised a part of
such Loan Document; and the remaining provisions of such Loan Document shall
remain in full force and effect and shall not be affected by the illegal,
invalid or unenforceable provision or by its severance from such Loan
Document. Furthermore, in lieu of each such illegal, invalid or
unenforceable provision 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
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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 H (hereinafter referred to as the "Assignment and
Acceptance") with respect to such assignment) shall, unless otherwise agreed
to by the Agent, in no event be less than $10,000,000 or, if less, the
entirety of its Commitment and shall be an integral multiple of $1,000,000,
(D) each such assignment shall be to an Eligible Assignee (defined below),
(E) the parties to each such assignment shall execute and deliver to the
Agent, for its acceptance and recording in the Register (defined below), an
Assignment and Acceptance, together with any Note subject to such assignment
and (F) Agent receives a fee from the assignor in the amount of $2,500. Upon
such execution, delivery, acceptance and recording, from and after the
effective date specified in each Assignment and Acceptance, (1) the assignee
thereunder shall be a party hereto and, to the extent that rights and
obligations under the Loan Documents have been assigned to it pursuant to
such Assignment and Acceptance, have the rights and obligations of a Bank
under the Loan Documents, (2) the assigning Bank thereunder shall, to the
extent that rights and obligations under the Loan Documents have been
assigned by it pursuant to such Assignment and Acceptance, relinquish its
rights and be released from its obligations under the Loan Documents (and, in
the case of an Assignment and Acceptance covering all or the remaining
portion of an assigning Bank's rights and obligations under this Loan
Agreement, such Bank shall cease to be a party hereto), and (3) Section
2.01(a) shall be deemed to have been automatically amended to reflect the
revised Commitments. As used herein, "Eligible Assignee" shall mean (a) any
Bank or any Affiliate of any Bank; (b) a commercial bank organized under the
laws of the United States, or any state thereof, and having total assets in
excess of $1,000,000,000 and having deposits rated in either of the two
highest generic letter rating categories (without regard to subcategories)
from either Standard & Poor's Corporation or Xxxxx'x 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
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subdivision of any such country, and having total assets in excess of
$1,000,000,000, provided that such bank is acting through a branch or agency
located in the country in which it is organized or another country which is
also a member of the OECD; (d) the central bank of any country which is a
member of the OECD; and (e) any other financial institution approved by the
Agent.
(ii) In the event any Bank desires to transfer all or any portion of
its rights and obligations under the Loan Documents, it shall give the
Borrowers and the Agent prior written notice of the identity of such
transferee and the terms and conditions of such transfer (a "TRANSFER
NOTICE"). So long as no Event of Default has occurred and is continuing, the
Borrowers may, no later than ten (10) days following receipt of such Transfer
Notice, designate an alternative transferee and such Bank shall thereupon be
obligated to sell the interests specified in such Transfer Notice to such
alternative transferee, subject to the following: (A) such transfer shall be
made on the same terms and conditions outlined in such Transfer Notice, (B)
such transfer shall otherwise comply with the terms and conditions of the
Loan Documents (including Section 13.09(a)(i), and (C) such alternative
transferee must be an Eligible Assignee approved by the Agent. If the
Borrowers shall fail to designate an alternative transferee within such ten
(10) day period, such Bank shall, subject to compliance with the other terms
and provisions hereof, be free to consummate the transfer described in such
Transfer Notice.
(b) By executing and delivering an Assignment and Acceptance
substantially in the form of EXHIBIT H, the assigning Bank thereunder and the
assignee thereunder confirm to and agree with each other and the other
parties hereto as follows: (i) other than as provided in such Assignment and
Acceptance, such assigning Bank makes no representation or warranty and
assumes no responsibility with respect to any statements, warranties or
representations made in or in connection with the Loan Documents or the
execution, legality, validity, enforceability, genuineness, sufficiency or
value of this Loan Agreement or any other instrument or document furnished
pursuant hereto, (ii) such assigning Bank makes no representation or warranty
and assumes no responsibility with respect to the financial condition of the
Borrowers or the performance or observance by the Borrowers of any of its
obligations under this Loan Agreement or any other instrument or document
furnished pursuant hereto; (iii) such assignee confirms
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that it has received a copy of this Loan Agreement and the other Loan
Documents, together with copies of the financial statements referred to in
Section 7.07 and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into such
Assignment and Acceptance; (iv) such assignee will, independently and without
reliance upon any of the Banks (including such assigning Bank) and based on
such documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action
under this Loan Agreement; (v) such assignee confirms that it is an Eligible
Assignee; (vi) such assignee appoints and authorizes the Agent to take such
action on its behalf and to exercise such powers under this Loan Agreement
and the other Loan Documents as are delegated to such Person by the terms
thereof, together with such powers as are reasonably incidental thereto; and
(vii) such assignee agrees that it will perform in accordance with their
terms all of the obligations which by the terms of this Loan Agreement and
the other Loan Documents are required to be performed by it as a Bank.
(c) The Agent shall maintain a copy of each Assignment and Acceptance
delivered to and accepted by it and a register for the recordation of the
names and addresses of the Banks and the Commitment of, and principal amount
of the Notes owing to, each Bank from time to time (the "REGISTER"). The
entries in the Register shall be conclusive and binding for all purposes,
absent manifest error, and the Borrowers and each of the Banks may treat each
Person whose name is recorded in the Register as a Bank hereunder for all
purposes of this Loan Agreement. The Register shall be available for
inspection by the Borrowers or any of the Banks at any reasonable time and
from time to time upon reasonable prior notice.
(d) Upon its receipt of an Assignment and Acceptance
executed by an assigning Bank and an assignee representing that
it is an Eligible Assignee, together with any Note subject to
such assignment, the Agent shall, if such Assignment and
Acceptance has been completed and is in substantially the form of
EXHIBIT H hereto and satisfies all other requirements set forth
in this Section 13.09, (i) accept such Assignment and Acceptance,
(ii) record the information contained therein in the Register and
(iii) give prompt notice thereof to the Borrowers and the other
Banks. Within five (5) Business Days after its receipt of such
notice, the Borrowers,
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at their own expense, shall execute and deliver to the Agent, in exchange for
the surrendered Note, a new Note to the order of such Eligible Assignee in an
amount corresponding to the Commitment assumed by such Eligible Assignee
pursuant to such Assignment and Acceptance and, if the assigning Bank has
retained a Commitment hereunder, a new Note to the order of the assigning
Bank in an amount corresponding to the Commitment retained by it hereunder.
Such new Notes shall be in an aggregate principal amount equal to the
aggregate principal amount of such surrendered Notes, shall be dated the
effective date of such Assignment and Acceptance and shall otherwise be in
substantially the form prescribed by EXHIBIT H hereto.
(e) Each Bank may sell participations to one or more banks or other
entities in or to all or a portion of its rights and obligations under this
Loan Agreement and the other Loan Documents (including, without limitation,
all or a portion of its Commitment and the Notes owing to it); PROVIDED,
HOWEVER, that (i) such Bank's obligations under this Loan Agreement
(including, without limitation, its Commitment to the Borrowers hereunder)
and the other Loan Documents shall remain unchanged, (ii) such Bank shall
remain solely responsible to the other parties hereto for the performance of
such obligations, and the participating banks or other entities shall not be
considered a "Bank" for purposes of the Loan Documents, (iii) the
participating banks or other entities shall be entitled to the cost
protection provision contained in Section 4.03 and Section 4.05, in each case
to the same extent that the Bank from which such participating bank or other
entity acquired its participations would be entitled to the benefit of such
cost protection provisions and (iv) the Borrowers and the other Banks shall
continue to deal solely and directly with such Bank in connection with such
Bank's rights and obligations under this Loan Agreement and the other Loan
Documents, and such Bank shall retain the sole right to enforce the
obligations of the Borrowers relating to the Loans and to approve any
amendment, modification or waiver of any provision of this Loan Agreement
(other than amendments, modifications or waivers with respect to the amounts
of any fees payable hereunder or the amount of principal of or the rate at
which interest is payable on the Notes, or the dates fixed for payments of
principal or interest on the Notes).
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(f) Any Bank may, in connection with any assignment or participation or
proposed assignment or participation pursuant to this Section 13.09, disclose
to the assignee or participant or proposed assignee or participant, any
information relating to the Borrowers furnished to such Bank by or on behalf
of the Borrowers; provided that prior to any such disclosure, each such
assignee or participant or proposed assignee or participant shall agree
(subject to customary exceptions) to preserve the confidentiality of any
confidential information relating to the Borrowers received from such Bank.
(g) The obligations of the Banks in this Loan Agreement,
the Notes and any other Loan Documents shall not be assignable or
transferable by Borrowers and any purported assignment or
transfer shall, as to the Agent and Banks, be of no force and
effect.
13.10. ARTICLE 15.10(b). Borrowers and Banks hereby agree that, except
for Article 15.10(b) thereof, the provisions of Charter 15 of Title 79 of the
Revised Civil Statutes of Texas, 1925, as amended (regulating certain
revolving credit loans and revolving triparty accounts) shall not apply to
the Loan Documents.
13.11. SURVIVAL. All representations and warranties made by Borrowers
herein shall survive delivery of the Notes and the making of the Revolving
Credit Loans.
13.12. NO THIRD PARTY BENEFICIARY. The parties do not intend the
benefits of this Agreement to inure to any third party, nor shall this Loan
Agreement be construed to make or render Banks liable to any materialman,
supplier, contractor, subcontractor, purchaser or lessee of any property
owned by Borrowers, or for debts or claims accruing to any such persons
against Borrowers. Notwithstanding anything contained herein or in the
Notes, or in any other Loan Document, or any conduct or course of conduct by
any or all of the parties hereto, before or after signing this Loan Agreement
or any of the other Loan Documents, neither this Loan Agreement nor any other
Loan Document shall be construed as creating any right, claim or cause of
action against Banks, or any of its officers, directors, agents or employees,
in favor of any materialman, supplier, contractor, subcontractor, purchaser
or lessee of any property owned by Borrowers, nor to any other person or
entity other than Borrowers.
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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 2nd day of June 1995.
AMERICREDIT CORP., a Texas
corporation
By: __________________________
Xxxxxx X. Xxxxx, Executive
Vice President
AMERICREDIT FINANCIAL SERVICES,
INC., a Delaware corporation
By: __________________________
Xxxxxx X. Xxxxx, Vice President
AMERICREDIT OPERATING CO., INC., a
Delaware corporation
By: __________________________
Xxxxxx X. Xxxxx, Vice President
BORROWERS
AMERICREDIT PREMIUM FINANCE,
INC., a Delaware corporation
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By: __________________________
Xxxxxx X. Xxxxx, President
ACF INVESTMENT CORP., a Delaware
corporation
By: __________________________
Xxxxxx X. Xxxxx, Vice President
GUARANTORS
FIRST INTERSTATE BANK OF TEXAS, N.A.
By: __________________________
Xxxxxxxx X. Xxxxx, Assistant
Vice President
BANK ONE, TEXAS, N.A.
By: __________________________
J. Xxxxxxx Xxxxxx, Vice
President
LASALLE NATIONAL BANK
By: __________________________
Xxxxx X. Xxxxxxx, First Vice
President
THE DAIWA BANK, LTD.
By: __________________________
Xxxxx X. Xxxx, Vice President
and Manager
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By: __________________________
Xxxx X. Xxxxxx, Vice President
XXXXXX TRUST AND SAVINGS BANK
By: __________________________
Xxxxxx X. Xxxxxx, Vice
President
COMERICA BANK-TEXAS
By: __________________________
Xxxxxxx X. Xxxxx, Vice
President
BANKS
FIRST INTERSTATE BANK OF TEXAS, N.A.
By: __________________________
Xxxxxxxx X. Xxxxx, Assistant
Vice President
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XXXXX
XXXX XXX, XXXXX, N.A.
By: __________________________
J. Xxxxxxx Xxxxxx, Vice
President
CO-AGENT
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