EXHIBIT 10.(a)
Amendment No. 6 to Amended and Restated Motor Vehicle Installment Contract
Loan and Security Agreement
This Amendment is entered into by and between Ugly Duckling Corporation,
successor in interest to Ugly Duckling Holdings, Inc. ("Ugly Duckling"), a
Delaware corporation; Ugly Duckling Car Sales and Finance Corporation
("UDCSFC"), an Arizona corporation formerly known as Duck Ventures, Inc.; Ugly
Duckling Credit Corporation ("UDCC") formerly known as Champion Acceptance
Corporation, an Arizona corporation; Ugly Duckling Car Sales, Inc. ("Sales"); an
Arizona corporation; Champion Financial Services, Inc. ("Champion"), an Arizona
corporation; Ugly Duckling Car Sales Florida, Inc. ("Car Sales Florida"), a
Florida corporation;; Ugly Duckling Car Sales New Mexico, Inc. ("Car Sales New
Mexico"), a New Mexico corporation; Ugly Duckling Car Sales California, Inc.
("Car Sales California"), a California corporation; Ugly Duckling Car Sales
Georgia, Inc. ("Car Sales Georgia"), a Georgia corporation; Cygnet Financial
Corporation ("Cygnet"), a Delaware corporation; Cygnet Dealer Finance, Inc.
("Dealer Finance"), an Arizona corporation; Cygnet Finance Alabama, Inc.
("Cygnet Alabama"), an Arizona corporation; Cygnet Support Services, Inc.
("Services"), an Arizona corporation; Cygnet Financial Services, Inc. ("Cygnet
Services"), an Arizona corporation; Cygnet Financial Portfolio, Inc. ("Cygnet
Portfolio"), an Arizona corporation (all of the foregoing entities collectively
referred to herein as "Existing Borrower"); Ugly Duckling Portfolio Partnership,
L.L.P. ("UDPP"), an Arizona limited liability partnership; Ugly Duckling Finance
Corporation ("UDFC"), an Arizona corporation; Ugly Duckling Portfolio
Corporation ("UDPC") an Arizona corporation formerly known as Champion Portfolio
Corporation; Cygnet Dealer Finance Florida, Inc. ("CDFF"), a Florida corporation
(UDPP, UDFC, UDPC and CDFF; collectively referred to herein as "New Borrower";
Existing Borrower and New Borrower collectively referred to herein as
"Borrower"); and General Electric Capital Corporation, a New York corporation
("Lender").
RECITALS
A. Existing Borrower and Lender are parties to an Amended and Restated
Motor Vehicle Installment Contract Loan and Security Agreement dated as of
August 15, 1997, as amended by an Assumption and Amendment Agreement dated
October 23, 1997, Amendment No. 1 dated December 22, 1997, Amendment No. 2 dated
September 9, 1998, Amendment No. 3 dated January 18, 1999, Amendment No. 4 with
effective date of June 30, 1999, and Amendment No. 5 dated August 16, 1999, (the
Amended and Restated Motor Vehicle Installment Contract Loan and Security
Agreement as so amended is referred to herein as the "Agreement") pursuant to
which Lender agreed to make Advances to Existing Borrower on the terms and
conditions set forth in the Agreement.
B. Existing Borrower and Lender desire to add New Borrower to the
Agreement pursuant to the terms and conditions set forth in this Amendment.
In consideration of the premises and other good and valuable
consideration, the receipt of which is hereby acknowledged by each of the
parties hereto, the parties agree as follows:
1. Defined Terms. Unless otherwise specified herein, all capitalized terms
used in this Amendment shall have the same meaning given to such term(s) in the
Agreement.
2. New Borrower. Without releasing Existing Borrower from liability to
Lender for all obligations existing or in the future arising under the
Agreement, New Borrower hereby assumes obligations as a Borrower to Lender under
the Agreement and all obligations to Lender under all other documents and
instruments executed by Existing Borrower in connection with the Agreement. By
executing this Amendment, New Borrower shall become a Borrower under the
Agreement with all rights and obligations attendant to such status. New Borrower
grants to Lender all of the conveyances and rights granted to Lender under the
Agreement, including but not limited to a security interest in all collateral
described therein and all rights and remedies set forth therein (including but
not limited to rights of termination, acceleration and foreclosure).
3. Amendments to Agreement. Effective as of the date hereof, the
Agreement is hereby amended as follows.
The introductory paragraph of the Agreement is hereby amended to add New
Borrower as a Borrower under the Agreement.
Section 17.8 of the Agreement, Attorneys' Fees and Lender's Expenses is replaced
in its entirety by the following:
Section 17.8 Attorneys' Fees and Lender's Expenses.
If Lender shall in good faith employ counsel for advice or other
representation or shall incur other costs and expenses in connection
with entering into any future amendments or modifications to the
Agreement after the execution of Amendment No. 6 to the Amended and
Restated Motor Vehicle Installment Contract Loan and Security Agreement;
or If, following an Event of Default, Lender shall in good faith employ
counsel for advice or other representation or shall incur other costs
and expenses in connection with (A) any litigation, contest, dispute,
suit, proceeding or action (whether instituted by Lender, Borrower or
any other Person) in any way relating to the Collateral, any of the Loan
Documents or any other agreements executed or delivered in connection
herewith, (B) any attempt to enforce, or enforcement of, any rights of
Lender against Borrower or any other Person, including, without
limitation, Contract Debtors, that may be obligated to Lender by virtue
of any of the Loan Documents, or (C) any actual or attempted inspection,
audit, monitoring, verification, protection, collection, sale,
liquidation or other disposition of the Collateral; then, in any such
event, the attorneys' fees arising from such services and all expenses,
costs, charges and other fees (including expert's fees) incurred by
Lender in any way arising from or relating to any of the events or
actions described in this Section shall be payable to Lender by Borrower
on demand by Lender and until paid shall be part of the Loan.
4. Conditions Precedent To Effectiveness Of Amendment No.6.
New Borrower shall have delivered to Lender on or before the date
hereof the following duly executed documents in form and substance satisfactory
to Lender, delivery of which shall be a condition precedent to the effectiveness
of this Amendment:
(A) This Amendment;
(B) UCC-1 Financing Statements of each New Borrower;
(C) Duly adopted resolutions of the Board of Directors of each New Borrower;
(D) Copies of each New Borrower's Articles of Incorporation and By-laws,
certified as a true and correct copy by the Secretary of New Borrower as
true and correct;
(E) Certificates of good standing for each New Borrower issued by the Secretary
of State of its state of incorporation;
(F) A power of attorney of each New Borrower;
(G) A copy of a letter delivered by each New Borrower to its accountants
instructing them to disclose to Lender any and all financial statements and
other information of any kind relating to New Borrower's business,
financial condition and other affairs that Lender may request;
(H) Financial statement certificate from the chief financial officer of each New
Borrower;
(I) Officer's certificate of each New Borrower;
(J) Assignment of all bank accounts of each New Borrower;
(K) Assignment of rights to direct debit of each New Borrower;
(L) Assignment of insurance interests of each New Borrower;
(M) Landlord's waiver/mortgagee's waiver of each New Borrower; and
(N) Such additional information and materials as Lender may reasonably request.
5. Incorporation of Amendment: The parties acknowledge and agree that
this Amendment is incorporated into and made a part of the Agreement, the terms
and provisions of which, unless expressly modified herein, or unless no longer
applicable by their terms, are hereby affirmed and ratified and remain in full
force and effect. To the extent that any term or provision of this Amendment is
or may be deemed expressly inconsistent with any term or provision of the
Agreement, the terms and provisions of this Amendment shall control. Each
reference to the Agreement shall be a reference to the Agreement as amended by
this Amendment. This Amendment, taken together with the unamended provisions of
the Agreement which are affirmed and ratified by Borrower, contains the entire
agreement among the parties regarding the transactions described herein and
supersedes all prior agreements, written or oral, with respect thereto.
6. Borrower Remains Liable. Borrower hereby confirms that the Agreement
and each document executed by Borrower in connection therewith continue
unimpaired and in full force and effect and shall cover and secure all of
Borrower's existing and future obligations to Lender.
7. Headings. The paragraph headings contained in this Amendment are for
convenience of reference only and shall not be considered a part of this
Amendment in any respect.
8. Governing Law. This Amendment shall be governed by and construed in
accordance with the laws of the State of Arizona. Nothing herein shall preclude
Lender from bringing suit or taking other legal action in any jurisdiction.
9. Execution in Counterparts. This Amendment may be executed in any
number of counterparts and by different parties hereto in separate counterparts,
each of which when so executed and delivered shall be deemed to be an original
and all of which taken together shall constitute one and the same instrument.
[Remainder of Page Intentionally Left Blank]
IN WITNESS WHEREOF, the undersigned have entered into this Amendment as of
August 27, 1999.
GENERAL ELECTRIC CAPITAL
CORPORATION UGLY DUCKLING CAR SALES, INC.
By: /S/ XXXX XXXXX By: /S/ XXX X. XXXXXXXX
Title: Account Executive Title: Secretary
UGLY DUCKLING CORPORATION UGLY DUCKLING CAR SALES NEW MEXICO, INC.
By: /S/ XXX X. XXXXXXXX By: /S/ XXX X. XXXXXXXX
Title: Secretary Title: Secretary
UGLY DUCKLING CAR SALES AND CHAMPION FINANCIAL SERVICES, INC.
FINANCE CORPORATION
By: /S/ XXX X. XXXXXXXX By: /S/ XXX X. XXXXXXXX
Title: Secretary Title: Secretary
UGLY DUCKLING CAR SALES FLORIDA, UGLY DUCKLING CREDIT CORPORATION
By: /S/ XXX X. XXXXXXXX By: /S/ XXX X. XXXXXXXX
Title: Secretary Title: Secretary
UGLY DUCKLING CAR SALES TEXAS, UGLY DUCKLING CAR SALES
L.L.P. CALIFORNIA, INC.
By: Ugly Duckling Car Sales, Inc.
Its: General Partner By: /S/ XXX X. XXXXXXXX
Title: Secretary
By: /S/ XXX X. XXXXXXXX
Title: Secretary UGLY DUCKLING CAR SALES GEORGIA, INC.
By: /S/ XXX X. XXXXXXXX
Title: Secretary
CYGNET FINANCIAL CORPORATION CYGNET DEALER FINANCE, INC.
By: /S/ XXX X. XXXXXXXX By: /S/ XXXXXX X. XXXXXXX
Title: Secretary Title: Secretary
CYGNET FINANCE ALABAMA, INC. CYGNET SUPPORT SERVICES, INC.
By: /S/ XXXXXX X. XXXXXXX By: /S/ XXX X. XXXXXXXX
Title: Secretary Title: Secretary
CYGNET FINANCIAL SERVICES, INC. CYGNET FINANCIAL PORTFOILIO, INC.
By: /S/ XXX X. XXXXXXXX By: /S/ XXX X. XXXXXXXX
Title: Secretary Title: Secretary
