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MASTER LOAN AGREEMENT
BETWEEN
GENERAL MOTORS ACCEPTANCE CORPORATION
AND
RUSH ENTERPRISES, INC.
JULY 28, 1997
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TABLE OF CONTENTS
PAGE
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ARTICLE I - Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Section 1.01 Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
ARTICLE II - Borrower Base Line of Credit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Section 2.01 Consolidation of Borrowing Base Loans . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Section 2.02 Establishment of Line of Credit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Section 2.03 Loans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Section 2.04 Repayment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Section 2.05 Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Section 2.06 Permitted Use of Credit Advances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Section 2.07 Collateral Formula Amount . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Section 2.08 Security Interest and Collateral
Assignment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Section 2.09 Obligations Regarding Borrowing Base
Collateral . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Section 2.10 Other Covenants by Rush Group . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
ARTICLE III - Real Estate Loans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Section 3.01 Consent to Conveyance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Section 3.02 Refinance of Oklahoma and Texas
Real Estate Loans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
ARTICLE IV - Wholesale Floor Plan Loans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Section 4.01 Consolidation of Wholesale Floor
Plan Loans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Section 4.02 Establishment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Section 4.03 Wholesale Credit Advances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Section 4.04 Wholesale Credit Note . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Section 4.05 Limitations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Section 4.06 Other Financing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Section 4.07 Retail Financing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Section 4.08 Dealer Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Section 4.09 Absolute Discretion of GMAC . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Section 4.10 Documentation of Dealer Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Section 4.11 Security Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
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ARTICLE V - Representations and Warranties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Section 5.01 Organization, Corporate Authority and
Qualifications . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Section 5.02 Authorization and Compliance with Laws
and Material Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Section 5.03 Valid and Binding Obligation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Section 5.04 Financial Condition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Section 5.05 Litigation and Judgments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Section 5.06 Title to and Perfection of Security
Interest in Collateral . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Section 5.07 No Other Financing Statements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Section 5.08 Purpose of Borrowers; Use of Proceeds . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Section 5.09 Ownership of Properties; Liens . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Section 5.10 Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Section 5.11 Guarantees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Section 5.12 Compliance with Laws and Franchise
Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Section 5.13 No Materially Adverse Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Section 5.14 Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Section 5.15 Misrepresentation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Section 5.16 Environmental Liabilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Article VI - Positive Covenants of Rush Group . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Section 6.01 Accounting Records . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Section 6.02 Financial Reports . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Section 6.03 Continuing Business . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Section 6.04 Financial Status . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Section 6.05 Liens, Etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Section 6.06 Taxes, Etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Section 6.07 Possession of Titles . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Section 6.08 Monthly Certification Report . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Section 6.09 Inspection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Section 6.10 Insurance: Payment of Premium . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Section 6.11 Environmental Matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Section 6.12 Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Section 6.13 Further Assurances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
Section 6.14 Future Dealers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
ARTICLE VII - Negative Covenants of Borrower . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
Section 7.01 Reorganizations, Acquisitions, Change
of Name . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
Section 7.02 Management: Ownership . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
Section 7.03 Restriction on Other Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
Section 7.04 Loans and Investments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
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ARTICLE VIII - Conditions Precedent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
Section 8.01 Representations True . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
Section 8.02 Opinion of Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
Section 8.03 Good Standing and Certified Copies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
Section 8.04 Guarantees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
Section 8.05 Loan Documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
Section 8.06 Material Adverse Change . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
Section 8.07 Due Diligence: UCC Filings and Searches . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
Section 8.08 Sales Authority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
Section 8.09 Repurchase Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
Section 8.10 Real Estate Loans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
ARTICLE IX - Events of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
Section 9.01 Events of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
ARTICLE X - Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
Section 10.01 Termination of Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
Section 10.02 Specific Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
Section 10.03 Remedies Cumulative . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
Section 10.04 Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
Section 10.05 Proceeds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
Section 10.06 Default Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
Section 10.07 No Agency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
Article XI - Miscellaneous . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
Section 11.01 GMAC's Accounts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
Section 11.02 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
Section 11.03 Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
Section 11.04 Survival . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
Section 11.05 Limitations on Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
Section 11.06 Applicable Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
Section 11.07 Venue and Waiver of Jury Trial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
Section 11.08 Severability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
Section 11.09 Construction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
Section 11.10 GMAC's Discretion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
Section 11.11 No Third Party Beneficiary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
Section 11.12 Rush Group In Control; No Partnership . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
Section 11.13 Successors and Assigns . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
Section 11.14 Number and Gender . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
Section 11.15 Captions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
Section 11.16 Time of the Essence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
Section 11.17 Executed Copies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
Section 11.18 Entire Agreement of the Parties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
Section 11.19 Statutory Notice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
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MASTER LOAN AGREEMENT
This Master Loan Agreement ("Agreement") is made to be effective as of
July 28, 1997 by and between the following parties:
(i) General Motors Acceptance Corporation, a New York
corporation ("GMAC"),
(ii) Rush Enterprises, Inc., a Texas corporation ("Rush"),
(iii) Rush Truck Centers of California, Inc., a Delaware
corporation ("RTC-California"),
(iv) Rush Truck Centers of Louisiana, Inc., a Delaware
corporation ("RTC-Louisiana"),
(iv) Rush Truck Centers of Oklahoma, Inc., a Delaware
corporation ("RTC-Oklahoma"),
(iv) Rush Truck Centers of Texas, Inc., a Delaware
corporation ("RTC-Texas"), and
(v) Rush Truck Centers of Colorado, Inc., a Delaware
corporation ("RTC-Colorado").
RECITALS
A. GMAC is in the business of providing various credit
accommodations to motor vehicle dealers to facilitate (i) their purchase, sale,
lease, rental, and servicing of motor vehicles, (ii) their purchase of parts
and accessories, and (iii) their purchase of land and buildings for dealership
facilities, and related plant and equipment.
X. Xxxx presently has numerous loans with GMAC, as evidenced by
the Borrowing Base Loans, Oklahoma Real Estate Loans, Texas Real Estate Loans
and Wholesale Floor Plan Loans, as defined below.
X. Xxxx has formed RTC-California, RTC-Oklahoma, RTC-Louisiana,
RTC-Texas and RTC-Colorado as wholly owned subsidiaries to operate in each of
said referenced states. Rush has requested that GMAC consent to the conveyance
of certain of its assets to said subsidiaries, and to consolidate certain of
its loans, as well as modify certain of the payment and other terms of said
loans. GMAC has agreed to said items, and the parties wish to reflect their
agreement herein.
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NOW, THEREFORE, in consideration of the mutual agreements set forth
below, the parties agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01 Definitions. In addition to other defined terms
herein, as used in this Agreement, and unless the context otherwise requires,
the following terms shall have the respective meanings set forth below:
(a) Applicable Law - all laws, rules and regulations applicable to
the Person, conduct, transaction, covenant or Loan Documents in question,
including all applicable common law and equitable principles; all provisions of
all applicable state and federal constitutions, statutes, rules, regulations
and orders of governmental bodies; and orders, judgments and decrees of all
courts and arbitrators.
(b) Best Knowledge - facts that are within the actual knowledge of
any officer of Borrower or a Dealer (as applicable) after due inquiry of
employees of Borrower or such Dealer reasonably likely to possess information
of the nature described.
(c) Borrower - Rush Enterprises, Inc.
(d) Borrowing Base Loans - the existing loans from GMAC to Rush
evidenced by the following:
(i) Demand Promissory Note dated September 26, 1990 in the
principal amount of $2,500,000, executed by Rush and payable to GMAC,
and Revolving Line of Credit Loan and Security Agreement dated
September 26, 1990 between Rush and GMAC. (This revolving line of
credit loan has subsequently been reduced to a maximum of $2,000,000)
(ii) Demand Promissory Note dated March 21, 1996 in the
principal amount of $2,500,000, executed by Rush (dba South Coast
Peterbilt) and payable to GMAC, and Revolving Line of Credit Loan and
Security Agreement dated March 21, 1996 between Rush and GMAC.
(iii) Promissory Note dated December 18, 1995 in the
principal amount of $800,000, executed by Rush (dba Oklahoma Trucks,
Inc.) and payable to GMAC, and Revolving Line of Credit Loan and
Security Agreement dated December 18, 1995 between Rush and GMAC.
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(iv) Promissory Note dated December 18, 1995 in the principal
amount of $700,000, executed by Rush (dba Tulsa Trucks, Inc.) and
payable to GMAC, and Revolving Line of Credit Loan and Security
Agreement dated December 18, 1995 between Rush and GMAC.
In accordance with Article II below, the above Borrowing Base Loans shall be
consolidated, and the credit line shall be increased, and shall be evidenced by
the execution of a new promissory note in the principal amount of
$8,000,000.00.
(e) Business Day - any day excluding Saturday, Sunday and any day
which is a legal holiday under the laws of the State of Texas or is a day on
which banking institutions located in such state is closed. Unless the terms
herein specifically provide that a period of time is measured by "Business
Days", time periods shall be deemed to refer to calendar days.
(f) Collateral - all of the Real Estate, Motor Vehicle Inventory and
Parts Inventory, and all other real or personal property and interests in same
that now or hereafter secure the payment and performance of any of the
Obligations.
(g) Dealer or Dealers - RTC-California, RTC-Louisiana, RTC-Oklahoma,
RTC-Texas and RTC-Colorado, as applicable, together with any future entities
formed by Rush to operate a dealership. A Dealer is also sometimes referred to
as a "Rush Group Affiliate". Notwithstanding the foregoing or any other
provision of this Agreement to the contrary, for the purposes of this
Agreement, neither Rush Truck Leasing nor any entity formed or acquired by Rush
for the primary purpose of selling and/or leasing construction machinery
equipment, including, without limitation, entities that primarily sell or lease
equipment manufactured by Xxxx Deere, Xxxx Deere Worksite Products, Sakai
America, Inc., Allied, Trail King Industries, Inc. or Diamond Z Manufacturing,
shall be considered a "Dealer", a "Rush Group Affiliate" or a member of the
"Rush Group".
(h) Default or Event of Default - as defined in Article IX of this
Agreement, or in any of the other Loan Documents.
(i) Environmental Laws - all federal, state and local laws, rules,
regulations, ordinances, programs, permits, guidances, orders and consent
decrees relating to health, safety or environmental matters, including the
Comprehensive Environmental Response, Compensation and Liability Act of 1980.
(j) (not used)
(k) Franchise Agreement - any licensing and other permit or
registration for the sale and service of vehicles with any motor vehicle
manufacturer.
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(l) GAAP - generally accepted account principles in the United States
of America in effect from time to time.
(m) Governmental Authority - any state, commonwealth, federal,
foreign, territorial, or other court or governmental department, commission,
board, bureau, agency, or instrumentality.
(n) Guarantor or Guarantors - the Dealers and Rush, as applicable, or
any other person or entity who may hereafter guarantee payment or performance
of the whole or any part of the Obligations.
(o) Guaranty Agreement or Guaranty Agreements - the Guaranty
Agreement(s) executed by the Guarantors. Each Dealer shall execute a Guaranty
Agreement in the forms acceptable to GMAC, pursuant to which each Dealer shall
guarantee all Obligations of Rush and the other Dealers under to this
Agreement.
(p) Hazardous Material - any radioactive, hazardous, or toxic
substance, material, waste, chemical, or similar item, the presence of which on
any Facility, or the discharge, emission, release, or threat of release of
which on or from the Facility, is prohibited or otherwise regulated by any
laws, ordinances, statutes, codes, rules, regulations, orders, and decrees of
the United States and all local, state or governmental or regulatory
authorities exercising jurisdiction over any Borrower or Facility, or which
require special handling in collection, storage, treatment, or disposal by any
such laws or requirements. The term Hazardous Material includes, but is not
limited to, any material, substance, waste or similar item which is now or
hereafter defined as a hazardous material or substance under the laws of any
state, the Federal Water Pollution Control Act (33 U.S.C. Section 1317), the
Federal Resource Conservation and Recovery Act (42 U.S.C. Section 6901, et
seq.), the Federal Comprehensive Environmental Response, Compensation and
Liability Act (42 U.S.C. Section 9601, et seq.), any rules or regulations
adopted by any administrative agency, including but not limited to, the
Environmental Protection Agency, the Occupational Safety and Health
Administration, and any similar state or local agency having jurisdiction over
any Facility, whether or not such rules and regulations have the force of law.
The term "Hazardous Material" shall also include any items subject to
regulation under the Toxic Substances Control Act (15 U.S.C., Section 2601 et
seq.).
(q) Indebtedness - (i) all principal and interest owing from time to
time by Borrower to Lender pursuant to the Loans, together with (ii) all other
amounts owing to Lender from time to time by Borrower to Lender under the Loan
Documents.
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(r) Loan Documents - this Agreement, the Guaranty Agreements,
Security Agreements, and any other document executed to evidence or secure the
Loans.
(s) Loans - all loans and advances of any kind made by GMAC pursuant
to this Agreement, including the loans described in Article II (the Borrowing
Base Line of Credit), Article III (the Oklahoma Real Estate Loans and the Texas
Real Estate Loans), Article IV (the Wholesale Facility), and any other loan or
other extension of credit from GMAC to Borrower or any Dealer. A Loan shall
refer to any one of such Loans.
(t) Loan Documents - This Agreement, the GMAC Forms and any security
agreements, guarantees, financing statements or other agreements, instruments
or certificates contemplated by this Agreement. A "Loan Document" shall refer
to any one of said instruments.
(u) Lender - the owner of the Indebtedness. As of the effective date
hereof, the Lender is GMAC.
(v) Material Adverse Effect - the effect of any event or condition
which, alone or when taken together with other events or conditions occurring
or existing concurrently therewith, (i) has a material adverse effect upon the
business, operations, Collateral, condition (financial or otherwise) or
business prospects of Borrower or any Dealer; (ii) has any material adverse
effect whatsoever upon the validity or enforceability of the Agreement or any
of the other Loan Documents; (iii) has or may be reasonably expected to have
any material adverse effect upon the value of the whole or any material part of
the Collateral, the liens of Lender with respect to the Collateral or any
material part thereof or the priority of such Liens; (iv) materially impairs
the ability of Borrower or any Dealer to perform its obligations under this
Agreement, any Guaranty Agreement or any of the other Loan Documents, including
repayment of the Obligations when due; or (v) materially impairs the ability of
Lender to enforce or collect the Obligations or realize upon any of the
Collateral in accordance with the Loan Documents and Applicable Law.
(w) Maximum Rate - the maximum non-usurious rate of interest
permitted by Applicable Law that at any time, or from time to time, may be
contracted for, taken, reserved, charged or received on the Indebtedness in
question.
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(x) Motor Vehicle Inventory - all of the following, whether now owned
or hereafter acquired by Borrower or any Dealer, whether now existing, or
whether arising or created hereafter:
(i) motor vehicles, trailers and semi-trailers, and
accessories held for sale; and the replacement parts for any of these;
and general intangibles, contract rights, chattel paper, present and
future accounts and assignment of accounts including, but not limited
to, those arising out of the sale or lease thereof, including rents
receivable under leases and rental agreements.
(ii) all proceeds of collateral described in (i) above,
including, but not limited to, cash, negotiable instruments, accounts,
chattel paper or insurance proceeds.
(iii) all replacements, substitutions, accessions, returns,
and repossession, of any of the above.
(y) Obligations - all (i) indebtedness of Borrower or any Dealer
to GMAC, whether direct or indirect, absolute or contingent, due or to become
due, now existing or hereafter arising pursuant to or in connection with this
Agreement, including without limitation the Borrowing Base Line of Credit
described in Article II, the Real Estate Loans described in Article III herein
and the Wholesale Floor Plan Loans described in Article IV herein, and (ii) all
other covenants and agreements made by Borrower and Dealers herein.
(z) Oklahoma Liens - all liens, presently existing or hereafter
arising, securing payment of the Oklahoma Real Estate Loans, including without
limitation those evidence by the following (collectively, the "Mortgages"):
(i) Mortgage, Assignment and Security Agreement dated March
1, 1996 from Rush to GMAC, recorded in Book 6862, Page 0378 of the
Oklahoma County Clerk Records, and the Security Agreement dated March
1, 1996 from Rush to GMAC.
(ii) Mortgage, Assignment and Security Agreement dated March
1, 1996 from Rush to GMAC, recorded in Book 6862, Page 0399 of the
Oklahoma County Clerk Records, and the Security Agreement dated March
1, 1996 from Rush to GMAC.
(aa) Oklahoma Real Estate Loans - the loans from Lender to Rush, as
evidence by the following promissory notes:
(i) Promissory Note dated March 1, 1996 in the original
principal amount of $487,500.00, executed by Rush (dba Translease) and
payable to GMAC.
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(ii) Promissory Note dated March 1, 1996 in the original
principal amount of $1,425,000.00, executed by Rush (dba Oklahoma
Trucks, Inc.) and payable to GMAC.
(ab) Parts Inventory - all of the following, whether now owned or
hereafter acquired by Borrower or any Dealer, whether now existing, or whether
arising or created hereafter:
(i) all inventory of the Borrower or any Dealer consisting of
new and unused parts and accessories of any type and description now
owned or hereafter acquired by Borrower or any Dealer for sale or
lease, excluding all raw materials and all such goods constituting
work in progress or as attachments or fixtures or other tangible
property.
(ii) all proceeds of collateral described in (i) above,
including, but not limited to, cash, negotiable instruments, accounts,
chattel paper or insurance proceeds.
(iii) all replacements, substitutions, accessions, returns,
and repossession, of any of the above.
The Parts Inventory shall include all items defined as the New Parts Inventory
in Section 2.07 below.
(ac) Person - an individual, partnership, corporation, limited
liability company, joint stock company, land trust, business trust, or
unincorporated organization, or a government or agency or political subdivision
thereof.
(ad) Prime Rate - the "prime" or "base" rate of interest announced
from time to time by a majority of the twelve (12) largest banks (the "Banks")
operating in the United States as their base rates for computing interest on
loans to borrowers of the highest credit standing. No change will be made in
the Prime Rate unless there is a single rate of interest which is publicly
announced by at least seven (7) of the Banks as their prime or base rate. In
determining the Prime Rate, GMAC's determination of the Banks and their
announced prime or base rates shall be conclusive upon the parties. For
purposes of this definition, the prime or base rate of the Banks is not
necessarily their rate of interest charged by the Banks on loans to their most
creditworthy customers, nor is the Prime Rate necessarily the rate of interest
charged by GMAC on loans to its most creditworthy customers. Notwithstanding
the foregoing, for the purposes of determining the Prime Rate, the Prime Rate
shall be considered to be five percent (5%) if the prime or base rate
established by said banks at any time is a figure which is less than five
percent (5%) per annum.
(ae) Real Estate - the real property, improvements, fixtures and
appurtenances described in the instruments evidencing the
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Oklahoma Liens and Texas Liens, together with any similar property given
hereafter as security for all or any part of the Indebtedness.
(af) Rush Group - Rush, RTC-California, RTC-Louisiana, RTC-Oklahoma,
RTC-Texas and RTC-Colorado collectively. If Rush forms a new Dealer in the
future, the "Rush Group" shall include such new Dealer (except for Rush Truck
Leasing, as set forth above). Whenever any obligation, covenant,
indemnification or other agreement is made herein by the Rush Group, such
obligation, covenant or agreement is made jointly and severally by each of
Rush, RTC-California, RTC- Louisiana, RTC-Oklahoma, RTC-Texas and RTC-Colorado,
together with any future Dealer, as applicable.
(ag) Rush Truck Leasing - Rush Truck Leasing, Inc., a Delaware
corporation.
(ah) Texas Liens - all liens, presently existing or hereafter
arising, securing payment of the Texas Real Estate Loans, including without
limitation those evidenced by the following (collectively, the "Deeds of
Trust"):
(i) Deed of Trust dated January 20, 1995 from Rush to Xxxxxxx
X. Xxxxxxx, Trustee recorded in Volume 6324, Page 414 of the Official
Public Records of Bexar County, Texas and as Clerk's File No. R-242472
of the Official Public Records of Xxxxxx County, Texas.
(ii) Security Agreement dated January 20, 1995 from Rush to
GMAC.
(ai) Texas Real Estate Loans - the loans from Lender to Rush, as
evidence by the following promissory notes:
(i) Promissory Note dated January 20, 1995 in the original
principal amount of $564,000.00, executed by Rush and payable to GMAC.
(ii) Promissory Note dated January 20, 1995 in the original
principal amount of $893,000.00, executed by Rush and payable to GMAC.
(iii) Promissory Note dated January 20, 1995 in the original
principal amount of $799,000.00, executed by Rush and payable to GMAC.
(iv) Promissory Note dated January 20, 1995 in the original
principal amount of $658,000.00, executed by Rush and payable to GMAC.
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(v) Promissory Note dated January 20, 1995 in the original
principal amount of $1,786,000.00, executed by Rush and payable to
GMAC.
(aj) Security Agreements - all documents now existing or hereafter
given to secure payment of the Indebtedness and other Obligations, including
without limitation the Agreement, the documents evidencing the Oklahoma Liens
and Texas Liens, and the new security agreements to be executed by each Dealer.
(ak) Wholesale Floor Plan Loans - the existing loans from GMAC to
Rush evidenced by the following:
San Antonio Peterbilt-GMC Truck, Inc.:
(i) Promissory Note dated June 19, 1995 in the principal
amount of $5,000,000, executed by Rush (dba San Antonio Peterbilt-GMC
Truck, Inc.) and payable to GMAC.
(ii) Loan Agreement dated June 19, 1995 between GMAC and Rush
(dba San Antonio Peterbilt-GMC Truck, Inc.) and payable to GMAC.
(iii) Wholesale Security Agreement dated June 19, 1995
executed by Rush (dba San Antonio Peterbilt-GMC Truck, Inc.) in favor
of GMAC.
San Antonio Peterbilt, Inc.:
(i) Promissory Note dated August 19, 1992 in the principal
amount of $5,000,000, executed by Rush (dba San Antonio Peterbilt,
Inc.) and payable to GMAC.
(ii) Promissory Note dated July 5, 1995 in the principal
amount of $5,000,000, executed by Rush (dba San Antonio Peterbilt,
Inc.) and payable to GMAC.
(iii) Loan Agreement dated August 19, 1992 between GMAC and
Rush (dba San Antonio Peterbilt, Inc.) and payable to GMAC.
(iv) Wholesale Security Agreement dated August 19, 1992
executed by Rush (dba San Antonio Peterbilt, Inc.) in favor of GMAC.
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Houston Peterbilt:
(i) Promissory Note dated March 1, 1989 in the principal
amount of $3,500,000, executed by Rush (dba Houston Peterbilt, Inc.)
and payable to GMAC.
(ii) Promissory Note dated August 7, 1989 in the principal
amount of $1,000,000, executed by Rush (dba Houston Peterbilt, Inc.)
and payable to GMAC.
(iii Promissory Note dated April 21, 1994 in the principal
amount of $500,000, executed by Rush (dba Houston Peterbilt, Inc.) and
payable to GMAC.
(iv) Promissory Note dated June 28, 1995 in the principal
amount of $5,500,000, executed by Rush (dba Houston Peterbilt, Inc.)
and payable to GMAC.
(v) Promissory Note dated November 26, 1986 in the principal
amount of $4,500,000, executed by Rush (dba Houston Peterbilt, Inc.)
and payable to GMAC.
(vi) Loan Agreement dated March 1, 1989 between GMAC and Rush
(dba Houston Peterbilt, Inc.) and payable to GMAC.
(vii) Wholesale Security Agreement dated March 1, 1989
executed by Rush (dba Houston Peterbilt, Inc.) in favor of GMAC.
(viii) Wholesale Security Agreement dated April 22, 1993
executed by Rush (dba Houston Peterbilt, Inc.) in favor of GMAC.
Lufkin Peterbilt:
(i) Promissory Note dated August 5, 1993 in the principal
amount of $2,000,000, executed by Rush (dba Lufkin Peterbilt, Inc.)
and payable to GMAC.
(ii) Promissory Note dated July 5, 1995 in the principal
amount of $3,000,000, executed by Rush (dba Lufkin Peterbilt, Inc.)
and payable to GMAC.
(iii) Loan Agreement dated August 5, 1993 between GMAC and
Rush (dba Lufkin Peterbilt, Inc.) and payable to GMAC.
(iv) Wholesale Security Agreement dated August 5, 1993
executed by Rush (dba Lufkin Peterbilt, Inc.) in favor of GMAC.
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Laredo Peterbilt:
(i) Promissory Note dated October 4, 1994 in the principal
amount of $2,000,000, executed by Rush (dba Laredo Peterbilt, Inc.)
and payable to GMAC.
(ii) Promissory Note dated February 4, 1997 in the principal
amount of $1,000,000, executed by Rush (dba Laredo Peterbilt, Inc.)
and payable to GMAC.
(iii) Loan Agreement dated October 4, 1994 between GMAC and
Rush (dba Laredo Peterbilt, Inc.) and payable to GMAC.
(iv) Wholesale Security Agreement dated October 4, 1994
executed by Rush (dba Laredo Peterbilt, Inc.) in favor of GMAC.
South Coast Peterbilt:
Wholesale Security Agreement dated January 31, 1994 executed
by South Coast Peterbilt in favor of GMAC.
ARK-LA-TEX Peterbilt, Inc.:
Wholesale Security Agreement dated February 21, 1994 executed
by Rush (dba ARK-LA-TEX Peterbilt, Inc.) in favor of GMAC.
Oklahoma Trucks, Inc.:
Wholesale Security Agreement dated November 30, 1995 executed
by Rush (dba Oklahoma Trucks, Inc.) in favor of GMAC.
Tulsa Trucks, Inc.:
Wholesale Security Agreement dated November 30, 1995 executed
by Rush (dba Tulsa Trucks, Inc.) in favor of GMAC.
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ARTICLE II
BORROWING BASE LINE OF CREDIT
Section 2.01 Consolidation of Borrowing Base Loans. The credit
facility and funding terms of the Borrowing Base Loans shall be modified and
governed in accordance with this Article II.
Section 2.02 Establishment of Line of Credit. Subject to the terms
and conditions of this Agreement, GMAC hereby establishes a revolving line of
credit for Borrower in an amount not to exceed the lesser of:
(a) $8,000,000, or
(b) the Collateral Formula Amount, as defined in Section 2.07 below.
The amount available for loan under this Article II is referred to as the Line
of Credit. If, for any reason, the Credit Line Advances (defined below) shall
exceed the Line of Credit as determined above (such excess being hereinafter
referred to as Excess Amounts), the Line of Credit shall be deemed to include
the Excess Amounts for all purposes hereunder, except that Excess Amounts are
temporary only and shall not be deemed to permanently increase the Line of
Credit.
Section 2.03 Loans. Within 3 Business Days after each request made
by Borrower from time to time, GMAC will loan and advance Borrower the
principal amount of money so requested, up to the Line of Credit (hereinafter
the Credit Advance). The aggregate principal amounts so loaned and advanced
and remaining unpaid from time to time shall be deemed to be Credit Line
Advances. Each Credit Advance shall be disbursed by GMAC from its San Antonio,
Texas office and, upon such disbursement being made, shall be charged to
Borrower's account on GMAC's books and records. GMAC will render to Borrower a
statement at least once each month of Borrower's account which shall constitute
an account stated and shall be presumed to be correct.
Section 2.04 Repayment. Borrower shall repay the Credit Line
Advances to GMAC together with all accrued and unpaid interest and applicable
costs and expenses as hereinafter set forth (hereinafter the Total Borrowing
Base Indebtedness). Upon request made by GMAC, Borrower shall execute and
deliver such promissory note or notes in the form then in use by GMAC (being
hereafter referred to as the Borrowing Base Promissory Note) and guaranties to
further evidence the Credit Line Advances and related obligations; provided
that the failure of GMAC to so request or the failure of Borrower to execute
and deliver such Borrowing Base Promissory Note or Notes, or guaranty or
guaranties, shall not affect Borrower's obligation to
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repay GMAC as herein set forth. Any Borrowing Base Promissory Note or Notes,
or guaranty or guaranties, executed and delivered hereby shall be expressly
made subject to the terms and conditions of this Agreement. GMAC may send
monthly statements to Borrower for the amount owed; if Borrower fails to
question or otherwise contest the information on such statements within 10 days
of receipt by Borrower, Borrower shall be deemed to agree with the information
on the statements, including the accuracy of GMAC's calculation of the amount
owed.
(a) Permissive Repayment. Borrower may, at any time and without any
prepayment fee or premium or notice or penalty, repay all or any part of the
Credit Line Advances to GMAC.
(b) Mandatory Repayment. The Total Borrowing Base Indebtedness shall
be repaid by Borrower to GMAC immediately and without further notice or demand
therefor by GMAC upon the earlier of the following occurrences:
(i) an Event of Default, as hereinafter set forth, or
(ii) the effective date of the termination of this Agreement
as hereinafter set forth.
Section 2.05 Interest. The Credit Line Advances shall bear interest
on the unpaid principal amount of and from the date of each Credit Advance to
the date of repayment in full of the Credit Line Advances. Only one interest
rate will apply to the Credit Line Advances at any given time. Subject to the
provisions of the last sentence of this Section 2.05, the interest rate on each
Credit Line Advance will be determined from time to time at the Prime Rate plus
1.25 percentage points. Interest shall be calculated on the basis of a 360-day
year for the number of actual days outstanding. Interest shall be due and
payable monthly within 10 days of the billing date and the billing date shall
be within the first 5 Business Days of each month hereafter until Borrower have
paid GMAC all sums owing under this Agreement. GMAC may offer, from time to
time at is sole discretion, a wholesale incentive program which allows for a
1.25 percentage point reduction in the interest rate, as outlined in Exhibit
2.05; if such a program is at any time in place and Rush elects to participate
in it, then Rush shall receive such 1.25 percentage point reduction on the
interest rate in its Credit Line Advances; provided, however, that GMAC shall
have the right to terminate or modify the program upon 30 days' notice.
Section 2.06 Permitted Use of Credit Advances. Each and every Credit
Advance by GMAC to Borrower or on Borrower's behalf may be used solely for the
purposes of: (a) holding or acquiring inventory consisting of the New Parts
Inventory by the Rush Group;
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(b) for general working capital purposes; and (c) for such other purposes
related to the business of the Rush Group as may be reasonably acceptable to
GMAC.
Section 2.07 Collateral Formula Amount. The Collateral Formula
Amount shall be 75% of the Net Book Value of the New Parts Inventory of the
Rush Group, as of the date of this Agreement, and as subsequently adjusted from
time to time as certified in the Certification Report required to be submitted
to GMAC by Borrower.
New Parts Inventory of the Rush Group as utilized herein shall mean and
include all inventory of the Rush Group consisting of new and unused
parts and accessories of any type and description listed in the
manufacturers' current parts price catalog now owned or hereafter
acquired by the Rush Group for sale or lease, excluding all raw
materials and all such goods constituting work in progress or as
attachments or fixtures on other tangible property. Except as set
forth herein, "inventory" shall have the meaning attributed it by
Section 9.109(4) of the Texas Business and Commerce Code.
Net Book Value shall be the cost of an item of inventory as recorded in
the books of account of the Rush Group plus or minus any adjustments
made consistent with GAAP. In the event of any dispute or
disagreement as to the Net Book Value of an item or items of
inventory, the judgment and decision of GMAC shall be final.
Certification Report shall mean that form of document attached hereto
as Exhibit 2.07 attached hereto.
Section 2.08 Security Interest and Collateral Assignment. To secure:
(a) as to Rush, (i) the prompt and complete payment of the Total
Borrowing Base Indebtedness, (ii) the performance of any and all obligations
and duties of the Rush Group pursuant to this Agreement, and (iii) the payment
and performance of any and all other debts, obligations or duties of the Rush
Group to GMAC now existing or hereafter arising by this Agreement, and
(b) as to the Dealers, their obligations under the Guaranty
Agreements,
the Rush Group hereby pledge, assign and grant to GMAC a security interest in
the Parts Inventory (sometimes also referred to as the Borrowing Base
Collateral). Rush Group shall execute and deliver to GMAC one or more security
agreements, documents, and financing statements, in form and substance
satisfactory to GMAC in the exercise of reasonable judgment of GMAC (but not
inconsistent with this Agreement as to any subject dealt with in this
Agreement), as
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may be required by GMAC to grant and maintain a valid, perfected first lien or
security interest in the Borrowing Base Collateral. The security agreements to
be executed contemporaneously herewith shall be in the forms required by GMAC.
If an additional Dealer is formed in the future, such Dealer shall execute
similar documents required by GMAC granting to GMAC a security interest in the
Borrowing Base Collateral, conforming as necessary to the laws of the Dealer's
place of business.
Section 2.09 Obligations Regarding Borrowing Base Collateral. With
respect to the Borrowing Base Collateral, Rush Group shall:
(a) maintain, secure and protect it from diminution in value;
(b) keep it free and clear of the claims, liens, mortgage, pledge,
encumbrance, security interests and rights of all others;
(c) hold, control and dispose of it only for the purpose of
storing and exhibiting it for retail sale or lease in the ordinary course of
business;
(d) insure it against all risks in such amounts and with a carrier
and deductibles acceptable to GMAC in the exercise of reasonable judgment. Such
insurance policy shall name GMAC as loss payee and shall contain a cancellation
provision only upon 30 days prior written notice to GMAC.
Section 2.10 Other Covenants by Rush Group. In addition to the other
obligations and agreements here, Rush Group covenant and agree as follows:
(a) Rush Group shall maintain and furnish GMAC with reasonable
proof of insurance required pursuant to the provisions above. The receipt by
GMAC of any insurance proceeds shall not release Rush Group from payment of its
obligations hereunder, except to the extent of such proceeds.
(b) Rush Group shall permit representatives of GMAC to visit and
inspect any of the Borrowing Base Collateral and premises of any Dealer and
examine, copy (by electronic or other means) and abstract any of the books and
accounting and records of the Dealer, and to discuss the affairs, business,
finances and accounts of any Dealer with its officers and employees, at any
reasonable time and as often as may be reasonably desired.
(c) Rush Group shall furnish GMAC by the 20th day of each month a
Certification Report certified by the chief executive officer, chief financial
officer, president or vice president of a Dealer of that Dealer's Collateral
Formula Amount as of the last day of the previous month. GMAC may request, at
any time, a parts
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inventory schedule for any or all dealerships; Rush Group shall provide such
schedule within 48 hours of such request.
(d) Rush Group shall arrange and have conducted, at least
annually, and at the respective Dealers' expense, a complete physical inventory
of the New Parts Inventory. The said inventory shall be conducted by an
independent professional purveyor of such services and a certified copy of the
results thereof shall be promptly provided to GMAC.
(e) Rush Group shall keep their respective properties in good repair,
working order and condition and, from time to time, make all needful and proper
repairs, renewals, replacements, additions and improvements thereto, so that
the business carried on may be properly and advantageously conducted at all
times in accordance with prudent business management. As an exception to the
covenant of Rush Group continued in the preceding sentence, it is understood
that Rush Group shall not be deemed to have violated such covenant on account
of ordinary wear and tear and damage due to casualty or any cause beyond Rush
Group's reasonable control.
ARTICLE III
REAL ESTATE LOANS
Section 3.01 Consent to Conveyance. GMAC consents to the conveyance
of the Real Estate from Rush to RTC- Oklahoma and RTC-Texas respectively upon
the following terms and conditions:
(a) The deeds conveying the Real Estate must be satisfactory to GMAC
in its sole discretion.
(b) GMAC may offer, from time to time at is sole discretion, a
wholesale incentive program which allows for a 1.00 percentage point reduction
in the interest rate for real estate loans calling for a floating rate of
interest; if such a program is at any time in place and Rush elects to
participate in it, then Rush shall receive such 1.00 percentage point reduction
on the floating interest rate in its real estate loans; provided, however, that
GMAC shall have the right to terminate or modify the program upon 30 days'
notice.
(c) Rush Group shall provide GMAC with Mortgagee Policies of Title
Insurance, or endorsements to said existing Policies, acceptable to GMAC as to
form, coverage and exceptions, and showing GMAC's Mortgages and Deeds of Trust
to be in first lien position.
Section 3.02 Refinance of Oklahoma and Texas Real Estate Loans. On
the condition that there has been no Event of Default hereunder, GMAC shall
permit Rush Group to refinance the Oklahoma
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and Texas Real Estate Loans. Upon payment of all amounts owing under the
Oklahoma Real Estate Loans, GMAC agrees to release the liens evidenced by the
Mortgages referenced in Section 1.01(z)(i) and (ii) above. Upon payment of all
amounts owing under the Texas Real Estate Loans, GMAC agrees to release the
liens evidenced by the Deeds of Trust referenced in Section 1.01(ah)(i) above.
In addition to releasing the liens under said Deeds of Trust, GMAC agrees to
also release, as applicable, any other liens on personal or other property
which pertains to the real estate covered by said Deeds of Trust (by way of
example, security interests in equipment used at such locations).
ARTICLE IV
WHOLESALE FLOOR PLAN LOANS
Section 4.01 Consolidation of Wholesale Floor Plan Loans. The credit
facility and funding terms of the Wholesale Floor Plan Loans shall be modified
and governed in accordance with this Article IV.
Section 4.02 Establishment. From time to time prior to a termination
pursuant to Section 10.01 hereof, Borrower or any Dealer may, subject to the
terms and conditions of this Agreement, obtain loans from GMAC in order to
finance their acquisition of new and used motor vehicles from manufacturers,
distributors, customers, dealers and other sellers. Such credit facility is
referred to hereinafter as the "Wholesale Facility." The Wholesale Facility
will be used by solely for the purpose of acquiring new and used motor
vehicles.
Section 4.03 Wholesale Credit Advances. Upon request of Borrower or
any Dealer, GMAC will, subject to the terms and conditions of this Agreement,
loan funds (a "Wholesale Credit Advance") to Borrower or any Dealer, as
applicable, pursuant to the Wholesale Facility. Such request shall be in the
form prescribed by GMAC from time to time.
Section 4.04 Wholesale Credit Note. For Wholesale Floor Plan Loans
in Texas or other state where GMAC uses promissory notes for such loans, the
member of the Rush Group for whom the Wholesale Floor Plan Loan is made
(referred to herein as the "Borrowing Party") will repay the Wholesale Credit
Advances to GMAC, together with all accrued and unpaid expenses thereon, and
applicable costs and expenses as set forth in a promissory note or notes
payable to the order of GMAC, executed by the Borrowing Party and delivered to
GMAC concurrently with execution and delivery of this Agreement, substantially
in the form referenced in the GMAC Forms described below (the "Wholesale Credit
Note"). Notwithstanding anything in this Agreement or the Wholesale Credit
Note to the contrary, each
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Wholesale Credit Advance made (a) with respect to any new motor vehicle, will
be repaid by Borrowing Party to GMAC in the ordinary course of business, or
such earlier time as GMAC may determine in its sole, absolute discretion, after
the day of the sale, lease or other disposition of such vehicle by Borrowing
Party, and (b) with respect to any used motor vehicle, will be repaid by
Borrowing Party upon the earlier to occur of (i) 180 days from Borrowing
Party's acquisition of such vehicle or (ii) in the ordinary course of business,
or such earlier time as GMAC may determine in its sole, absolute discretion,
after the sale, lease or other disposition of such vehicle by Borrowing Party.
The Wholesale Credit Advances will bear interest at the Prime Rate plus 1.00
percentage points. GMAC may offer, from time to time at is sole discretion, a
wholesale incentive program which allows for a 1.00 percentage point reduction
in the interest rate; if such a program is at any time in place and Borrowing
Party elects to participate in it, then Borrowing Party shall receive such 1.00
percentage point reduction on the interest rate in its Wholesale Credit
Advances; provided, however, that GMAC shall have the right to terminate or
modify the program upon 30 days' notice.
Section 4.05 Limitations. The Wholesale Credit Advance will be (a)
100% of the original, factory invoice amount for the new motor vehicles; and
(b) 75% of the current listed average finance value, as provided in the
current, regional edition of the "The Truck Blue Book", for the used trucks
which are currently listed in The Truck Blue Book. Notwithstanding anything
herein contained to the contrary, the Wholesale Facility is expressly subject
to the written terms of the wholesale financing documents as listed in Section
4.10 and may be modified, suspended or terminated at the sole and absolute
discretion of GMAC.
Section 4.06 Other Financing. From time to time, GMAC may also
provide other categories of vehicle inventory and equipment financing to
members of the Rush Group, including, without limitation, financing under
GMAC's so-called Delayed Payment Privilege, Shop Rental Plan, Rental Plan,
plans for wholesale demonstrations and the like (collectively, "Other
Financing").
Section 4.07 Retail Financing. From time to time, GMAC may also
provide retail finance and lease accommodations to members of the Rush Group or
customers of Rush Group in accordance with GMAC's customary practices
(collectively "Retail Financing").
Section 4.08 Dealer Obligations. The amounts and obligations now or
hereafter owing to GMAC by any members of the Rush Group under the Wholesale
Facility, Other Financing, Retail Financing, and any and all other
indebtedness, obligations, or liabilities of Rush Group whether direct or
indirect, liquidated or contingent, are referred to hereinafter as "Dealer
Obligations." Rush Group hereby promises to pay to GMAC all Dealer Obligations
promptly on
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demand, except as may otherwise be set forth in accordance with the express
terms and conditions of this Agreement, the Loan Documents and the GMAC Forms
(as defined in Section 4.10 below).
Section 4.09 Absolute Discretion of GMAC. The amount, terms,
conditions, interest rate, repayment terms, advance rate, existence,
documentation, and administration of the Wholesale Facility will, at all times,
be subject to change, suspension, and cancellation at the sole, absolute
discretion of GMAC, notwithstanding anything herein or otherwise to the
contrary. Nothing contained in this Agreement will, at any time, obligate GMAC
to provide Other Financing or Retail Financing to Borrower or any Dealer, or
customer of Borrower or any Dealer. The making and amount of any Other
Financing or Retail Financing will be in the sole, absolute discretion of GMAC.
If GMAC elects to suspend or cancel financing under this Agreement, the
following notice provisions shall apply: (i) if there is no default of any
nature by any entity in the Rush Group, GMAC shall not make the suspension or
cancellation effective earlier than 120 days after notice to Borrower; (ii) if
there is any default of any nature by any entity in the Rush Group, GMAC may
make suspension or cancellation effective immediately upon notice of same.
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Section 4.10 Documentation of Dealer Obligations. Concurrently with
the execution and delivery of a Wholesale Facility, Borrower and Dealers will,
as appropriate, duly execute and deliver to GMAC at least one original of each
of the following documents, instruments, or agreements (the "GMAC Forms") to
further evidence the parties' intentions with respect to Dealer Obligations:
Wholesale Facility GMAC Form No.
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(i) Inventory Loan and Security Agreement 177JV
(i) Wholesale Security Agreement 178
(ii) UCC-1 Financing Statement
(iii) Signature Card 524
(iv) Addendum to Financial Statement 505 C
(v) Loan Agreement 176 GLA
(vi) Promissory Note 176-GPN
(vii) Agreement Amending the Wholesale
Security Agreement and 570
Conditionally Authorizing the
Sale of New Floor Plan Vehicles
on a Delayed Payment Privilege
Basis
(viii) Assignment of DPP Vehicle Proceeds 570-1
(ix) Factory Authorization Letter
Retail Facility (for Dealer service vehicles)
---------------
(i) Inventory Security Agreement 141
Copies of the GMAC Forms have been provided to Borrower.
Borrower and Dealers, as applicable, will duly execute and
deliver to GMAC such other documents, instruments, or
agreements and any amendments thereto with respect to the
Dealer Obligations, as GMAC may customarily require from time
to time. The existence of this Agreement, representations,
covenants, terms of default, and the like is in no way
intended to alter the demand nature of all Dealer Obligations
which in every instance are
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subject to change, suspension, and cancellation at the sole,
absolute discretion of GMAC.
It is acknowledged that the documentation of the Dealer
Obligations may vary from state to state, and the GMAC Forms
to be executed by Borrower and Dealers shall be in conformity
with GMAC's practice in a particular state.
It is also acknowledged that all members of the Rush Group
will guarantee all obligations of any Borrowing Party. If
requested by GMAC, members of the Rush Group will execute such
further acknowledgements, consents, guaranties and similar
documents to evidence such guaranty obligations.
Section 4.11 Security Interest. To secure:
(a) as to Borrower or any Dealer, as applicable, (i) the prompt and
complete payment of the Wholesale Credit Advances, (ii) the performance of any
and all obligations and duties of the Rush Group pursuant to this Agreement,
and (iii) the payment and performance of any and all other debts, obligations
or duties of the Rush Group to GMAC now existing or hereafter arising by this
Agreement, and
(b) as to Guarantors, their obligations under the Guaranty Agreements,
the Rush Group hereby pledges, assigns and grants to GMAC a security interest
in the Motor Vehicle Inventory. If an additional Dealer is formed in the
future, such Dealer shall execute similar documents required by GMAC granting
to GMAC a security interest in the Motor Vehicle Inventory.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
The Rush Group, individually and collectively, jointly and severally,
represent and warrant to GMAC as follows:
Section 5.01 Organization, Corporate Authority and Qualifications.
(a) Borrower and each Dealer is a corporation duly organized,
validly existing and in good standing under the laws of the jurisdiction of its
incorporation, and is duly qualified to transact business or own real property
in each state or other jurisdiction in which its principal real properties are
located or
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in which it conducts any important or material part of its business.
(b) Borrower and each Dealer has the corporate power and authority
to execute, deliver and perform this Agreement and the Loan Documents.
(c) The persons signing this Agreement and the Loan Documents on
behalf of Borrower and each Dealer have full authority to execute the same on
behalf of said entities, and to bind said entities to the terms thereof.
Section 5.02 Authorization and Compliance with Laws and Material
Agreements. The execution, delivery and performance of this Agreement and the
Loan Documents, and the borrowings here under, by Rush Group have been duly
authorized by all requisite corporate action on the part of Rush Group and will
not violate the articles of incorporation or bylaws of Rush Group and will not
violate any provision of law, or order of any court or governmental agency
affecting it in any respect, and will not conflict with, result in a breach of
the provisions of, constitute a default under, or result in the imposition of
any lien, charge, or encumbrance upon any assets of the Rush Group pursuant to
the provisions of any indenture, mortgage, deed of trust, franchise, permit,
license, note or other agreement or instrument to which the Rush Group may be
bound. No approval or consent from any Governmental Authority or other third
party is required in connection with the execution of or performance under this
Agreement and the Loan Documents by Rush Group.
Section 5.03 Valid and Binding Obligation. All of the Loan Documents
to which Borrower or any Dealer is a party, will upon execution and delivery by
such party, constitute a valid binding obligation of the Rush Group,
enforceable in accordance with their terms.
Section 5.04 Financial Condition. The balance sheets and statements
of income and retained earnings of the Rush Group, heretofore furnished to
GMAC, are complete and correct and fairly represent the financial condition of
the Rush Group as at the dates of said financial statements and the results of
their operations for the periods ending on said dates. Neither Borrower nor
any Dealer has any material contingent obligations, liabilities for taxes,
long-term leases, or unusual forward or long-term commitments not disclosed by,
or reserved against in, said balance sheets or the notes thereto; and at the
present time, there are no material realized or anticipated losses from any
unfavorable commitments of Borrower or any Dealer. Said financial statements
were prepared in accordance with generally accepted principles and practices of
accounting consistently maintained throughout the periods involved. Since the
date of the latest of such statements,
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there has been no material adverse change in the financial condition of
Borrower or any Dealer from that set forth in said balance sheets as at that
date.
Section 5.05 Litigation and Judgments. There are no suits or
proceedings pending, or, to the knowledge of Borrower or any Dealer threatened,
against or affecting Borrower or any Dealer that, if adversely determined,
would have a Material Adverse Effect on the financial condition or business of
Borrower or any Dealer, as the case may be, or on the Collateral; and there are
no proceedings by or before any governmental commission, board, bureau, or
other administrative agency pending or to the knowledge of Borrower or any
Dealer, threatened against Borrower or any Dealer, which if adversely
determined, would have a Material Adverse Effect on the business, properties,
condition, financial or otherwise of the Borrower or any Dealer. There are no
outstanding judgments (final or otherwise) against Borrower or any Dealer.
Section 5.06 Title to and Perfection of Security Interest in
Collateral. Rush Group are the owners of all their respective Collateral, free
and clear of all liens, security interests, and encumbrances other than those
in favor of GMAC hereunder and those shown on Schedule 5.06 attached hereto,
and will execute all such financing statements or other documents and take such
actions as GMAC may deem necessary or desirable to evidence or perfect its
first and prior security interest and lien in Collateral under the Loan
Documents.
Section 5.07 No Other Financing Statements. No UCC-1 or other
financing statement covering any assets owned by Rush Group has been executed
or is on file in any public office, except those financing statements disclosed
on the attached Schedule 5.06 and the financing statements of GMAC.
Section 5.08 Purpose of Borrowers; Use of Proceeds. Rush Group has
entered into this Agreement for legitimate purposes, and will use the proceeds
of the Loans exclusively as set forth in this Agreement.
Section 5.09 Ownership of Properties; Liens. Rush Group has good and
indefeasible title or valid leasehold interests in all their significant or
material properties and assets, real and personal, which are owned or used in
connection with its products or services, and none of such properties or assets
or leasehold interests of Rush Group are subject to any mortgage, pledge,
security interest, encumbrance, lien or charge of any kind which would
materially restrict the manner in which Rush Group uses or intends to use such
property.
Section 5.10 Taxes. Rush Group has filed all federal and state tax
returns or reports required of them, including but not
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limited to income, franchise, employment and sales taxes, and have paid or made
adequate provision for the payment of all taxes which have become due pursuant
to such returns or reports or pursuant to any assessment which has been
received, none of such being outstanding and unpaid, and Rush Group knows of no
pending investigations of Rush Group by any taxing authority, nor of any
material pending but unassessed tax liability.
Section 5.11 Guarantees. Except as set forth on Schedule 5.11
attached hereto, neither Borrower nor any Dealer has guaranteed any dividend or
any obligation of any other person, corporation or entity, including any
unconsolidated subsidiary, and no subsidiary has guaranteed any dividend,
obligation or indebtedness of any other person, corporation or entity,
including Borrowers, in each case other than deposit of items for collection in
the ordinary course of business and intercompany transactions.
Section 5.12 Compliance with Laws and Franchise Agreements. Except
to the extent that failure to comply would not have a Material Adverse Effect,
each Borrower has complied with all applicable laws, ordinances, statutes,
rules, regulations, orders, injunctions, writs or decrees (collectively,
"Laws") or any agreements, contracts and understandings, including without
limitation, all licensing and other permit or registration laws for the sale
and service of vehicles, and all agreements and understandings, written or
oral, to which it is party, or subject to, with any motor vehicle manufacturer
(each such agreement and understanding is referred to in this Agreement as a
"Franchise Agreement"), including with respect to: (a) any restrictions,
specifications or other requirements pertaining to vehicles or other products
sold by any Borrower or to services performed by any Borrower; (b) the conduct
of any Borrower's business; or (c) the use, maintenance and operation of the
real and personal properties owned by any Borrower or leased by it in the
conduct of its business.
Section 5.13 No Materially Adverse Agreements. Neither Borrower nor
any Dealer are a party to any agreement which in the opinion of Borrowers does
or will materially and adversely affect the business, operations or condition,
financial or otherwise, of any Borrower.
Section 5.14 Default. Neither Borrower nor any Dealer is in default
in any material respect under the provisions of any instrument evidencing any
material obligation, indebtedness or liability of a Borrower or of any
agreement relating thereto, or under any order, writ, injunction, or decree of
any court, or in default under or in violation of any order, regulation, or
demand of any governmental instrumentality which default or violation might
have consequences which would have a Material Adverse Effect
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affect on the business, financial condition, or properties of a Borrower.
Section 5.15 Misrepresentation. There is no fact which Borrower or
any Dealer have failed to disclose to GMAC, which materially and adversely
affects nor, so far as Borrower or any Dealer can now foresee, is reasonably
likely to have a Material Adverse Effect on the business, operation,
properties, profits, or condition of Borrower or any Dealer or the Collateral,
or the ability of Borrower or any Dealer to perform this Agreement.
Section 5.16 Environmental Liabilities. To the Best Knowledge of
Borrower and Dealers there is no Hazardous Material (defined above) on or in
any facility, owned, managed or occupied by Borrower or any Dealer located on
the Real Estate (a "Facility"), except such Hazardous Material stored on a
Facility in the ordinary course of Borrower's or any Dealer's business on the
Facility and managed to prevent a release or threatened release thereof, and in
accordance with all federal, state and local Laws (as defined in Section 5.12)
relating to Hazardous Material or other environmental matters, nor is there any
Hazardous Material being released or threatened to be released from or on any
Facility. To the Best Knowledge of Borrower and Dealers, (i) no part of any
Facility has ever been used as a manufacturing, storage or dump site for
Hazardous Material (except such Hazardous Material stored on a Facility in the
ordinary course of Borrower's or any Dealer's business on the Facility and in
accordance with all federal, state and local Laws relating to Hazardous
Material or other environmental matters), nor is any part of the Facility
affected by any Hazardous Material contamination; (ii) no real estate adjoining
any Facility has ever been used as a manufacturing, storage or dump site for
Hazardous Material (except such Hazardous Material stored in the ordinary
course of business and in accordance with all federal, state and local Laws
relating to Hazardous Material or other environmental matters); and (iii) no
real estate adjoining any Facility is affected by Hazardous Material
contamination. To the Best Knowledge of Borrower and Dealers, no report,
analysis, study or other document exists. Further, no communications have been
received by Borrower or any Dealer asserting that Hazardous Material
contamination exists on any Facility or identifying any Hazardous Material as
being located upon or released on or from any Facility.
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ARTICLE VI
POSITIVE COVENANTS OF RUSH GROUP
Rush Group, individually and collectively, jointly and severally,
covenant and agree that, as long as the Indebtedness or any part thereof is
outstanding, unless otherwise allowed by written instrument of GMAC:
Section 6.01 Accounting Records. Rush Group shall maintain a
standard and modern system for accounting in accordance with generally accepted
accounting principles consistently applied throughout all accounting periods.
Section 6.02 Financial Reports. Rush Group will furnish GMAC:
(a) during the first full calendar month after the date of this
Agreement, (i) a financial statement for Borrower and each Dealer, which fairly
and accurately reflects a condition not adversely and materially changed from
the financial statement with respect to such party last provided to GMAC by
such party prior to the date of this Agreement; and (ii) a financial statement,
prepared on a consolidated basis for all the Rush Group which fairly and
accurately reflects a condition not adversely and materially changed from the
financial statement with respect to all of the Rush Group last provided to GMAC
by Rush Group prior to the date of this Agreement. Rush Group will continue to
provide to GMAC, by the 20th day of each month thereafter, financial statements
as described in this Section 6.01(a) for the prior calendar month.
(b) within 90 days after the end of each fiscal year of Rush Group,
copies of audited financial statements, including but not limited to balance
sheets, statements of income and retained earnings, cash flow statements,
prepared on a consolidated basis for all the Rush Group and certified by
independent certified public accountants selected by Rush Group and
satisfactory to GMAC.
(c) from time to time, such further information regarding the
business affairs and financial condition of Borrower or any Dealer as GMAC may
reasonably request.
All financial statements delivered hereunder shall be prepared on the
basis of GAAP applied on a basis consistent with those used in the preparation
of the audited financial statements Rush Group.
Section 6.03 Continuing Business. Except to the extent failure to do
so will not have a Material Adverse Effect on the business or operations of
Rush Group, Rush Group shall maintain and continue their present business and
maintain their corporate
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existence in good standing, shall preserve and keep in full force and effect
any franchise rights and trade names, and shall pay, before the same become
delinquent and before penalties accrue thereon, all taxes, assessments, and
other governmental charges against Borrower or any Dealer or their property,
and any and all other liabilities, except to the extent, and so long as the
same are being contested in good faith by appropriate proceedings, with
adequate reserves provided for such payments.
Section 6.04 Financial Status. Rush will, on a consolidated basis
with all Dealers, maintain at all times (i) a Tangible Net Worth in the amount
of at least $12,500,000 and (ii) a ratio of Total Liabilities to Tangible Net
Worth of not greater than 8 to 1.
As used herein, the term "Tangible Net Worth" means the depreciated
book value amount of all assets of Borrowers (on a consolidated basis and
excluding intercompany items), plus gross 50% of LIFO reserves (if applicable)
(less purchase accounting adjustments), less:
(a) intangible assets, such as, without limitation, goodwill (whether
representing the excess of cost over book value of assets acquired or
otherwise, such excess to include, without limitation, the expense of all
noncompetition agreements), capitalized expenses, leasehold improvements (other
than improvements to dealership real property long-term leaseholds owned by a
Rush Group Affiliate), patents, trademarks, trade names, copyrights,
franchises, licenses, and deferred charges, such as, without limitation,
unamortized costs and costs of research and development;
(b) partnership and other equity interests reacquired but not
canceled;
(c) all reserves, including without limitation, reserves for
depreciation, depletion, obsolescence, amortization, deferred income taxes,
insurance, inventory valuation, and all other appropriations of retained
earnings;
(d) any minority interests in any corporation, partnership,
subsidiary or other affiliate; and
(e) Total Liabilities.
As used herein, the term "Total Liabilities" means with respect to
Rush Group, on a consolidated basis, all obligations for borrowed money,
including without limitation, all notes payable and drafts accepted
representing extensions of credit, commercial paper, all obligations evidenced
by bonds, debentures, notes or other similar instruments and all obligations
upon which interest charges are customarily paid, all obligations under
conditional
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sale or other title retention agreements, all obligations issued or assumed as
full or partial payment for property (whether or not any such obligations
represent obligations for borrowed money), all capitalized lease obligations,
and all indebtedness secured by any lien existing on property owned or acquired
by Rush Group subject to any such lien whether or not the obligations secured
thereby shall have been assumed.
Section 6.05 Liens, Etc. Borrower and Dealers will not create,
incur, or suffer any lien, mortgage, pledge, assignment, or other encumbrance
on, or security interest in, any of its properties, assets, or receivables, now
owned or hereafter acquired, securing the Obligations (all such security being
herein called "liens"), except:
(a) liens to GMAC.
(b) materialmen's, supplier's, tax, and other like liens arising in
the ordinary course of business and securing obligations that are not overdue
or are being contested in good faith by appropriate proceedings.
(c) purchase money security interests in [I] property described on
the attached Schedule 6.05(c) or [II] property hereafter acquired by Rush
Group, provided that absolutely no lien or interest shall be granted or allowed
by Rush Group to any other person with respect to any Motor Vehicle Inventory.
GMAC agrees that it will permit purchase money security interests in new Motor
Vehicle Inventory if each the following conditions exist: (i) the inventory is
not manufactured by General Motors or any of its subsidiaries (i.e., Cadillac,
Buick, Chevrolet, GMC Truck, Pontiac and Oldsmobile), and (ii) the interest
rate at which Borrower or Dealer will finance the inventory with another lender
is less than the interest rate that GMAC is willing to provide.
(d) equipment purchased in the ordinary course of business, which in
the aggregate for all of Rush Group, on a consolidated basis, shall not exceed
$1,000,000 annually.
(e) the liens shown in Schedule 5.06 attached hereto.
(f) liens against the Real Estate subject to the Oklahoma and Texas
Liens in connection with a refinance of the Oklahoma and Texas Real Estate
Loans pursuant to Section 3.02 above.
Section 6.06 Taxes, Etc. All taxes, levies, and assessments of
whatever description will be paid by Rush Group before interest or penalties
accrue thereon, unless the same is being contested in good faith by appropriate
proceedings.
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Section 6.07 Possession of Titles. Rush Group will permit GMAC upon
demand to hold all invoices, manufacturer certificates of origin, and title for
any Collateral (other than the Real Estate).
Section 6.08 Monthly Certification Report. Rush will furnish to
GMAC, within 20 days of each of the last day of each month, a report certified
by the chief executive officer or chief financial officer of Rush, in the form
attached as Exhibit 2.07, detailing the Collateral Formula Amount as of the
reporting date ("Monthly Certification Report"). Each Monthly Certification
Report submitted as of a month-end date shall have attached to it a complete
and detailed listing (by Dealer location) of New Parts Inventory, in the form
attached to Exhibit 2.07. GMAC may, in its sole and absolute discretion,
increase the frequency of such reports and demand such a report at any time.
Section 6.09 Inspection. Rush Group will permit GMAC or its designee
to: (a) visit, at any time during normal business hours upon GMAC's request,
all premises where any Collateral, or any records or documents of any of the
Rush Group, are located; (b) inspect during normal business hours all
Collateral and any records or documents of any of the Rush Group or which
relate to any Collateral; and (c) discuss their affairs, finances and accounts
with any director, officer, employee, accountant, partner, affiliate or agent
of any of the Rush Group.
Section 6.10 Insurance: Payment of Premium. Rush Group will, at
their sole cost and expense, keep and maintain their properties insured for
their full insurable value against loss or damage by fire, theft, explosion,
sprinklers and all other hazards and risks ordinarily insured against under all
risk policies in use by other owners or users of such properties in similar
businesses and notify GMAC promptly of any event or occurrence causing a
material loss or decline in value of its properties and the estimated (or
actual, if available) amount of such loss or decline. All policies of
insurance on the Collateral will be in form and with insurers acceptable to
GMAC and all such policies will be in such amounts as may be satisfactory to
GMAC. Rush Group will deliver to GMAC (i) the original (or certified copy) of
each policy of insurance or, in GMAC's sole, absolute discretion, a certificate
evidencing such insurance and (ii) evidence of payment of all premiums
therefor. Such policies and certificates of insurance will contain an
endorsement, in form and substance acceptable to GMAC, showing loss payable to
GMAC. Such endorsement, or an independent instrument furnished to GMAC, will
provide that the insurance companies will give GMAC at least 30 days' prior
written notice before any such policy or policies of insurance will be altered
or canceled and that no act or default of Borrower, Dealers or any other person
shall affect the right of GMAC to recover under such policy or policies of
insurance in case of loss or damage and that GMAC will have the right to cure
any such default by such parties. Rush
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Group hereby directs all insurers under such policies of insurance where loss
or damage to Collateral exceeds $500,000 under any such policy of insurance to
pay all proceeds payable thereunder directly to GMAC. So long as no Event of
Default exists hereunder, at the option of Rush Group, in the case of insurance
proceeds arising from the loss or damage of improvements to Rush Group's real
or personal property, the proceeds may be used to replace or restore same with
property having equal or greater value and utility to that lost or destroyed;
provided, however, Rush Group shall at its expense furnish to GMAC evidence
satisfactory to GMAC (including without limitation, title insurance policies or
endorsements thereto and opinions of counsel) that GMAC has a valid, duly
perfected lien on such property of equal or superior priority to the lien in
the property so replaced or restored. To the extent not so used, all such
proceeds shall be applied as a partial prepayment of the Loans. Borrower and
each Dealer irrecoverably makes, constitutes and appoints GMAC (and all
officers, employees or agents designated by GMAC) as its true and lawful
attorney (and agent-in- fact), effective from and after the occurrence of an
Event of Default, for the purpose of making, settling and adjusting claims
under such policies of insurance, endorsing the name of Borrower or any Dealer
on any check, draft, instrument or other item or payment for the proceeds of
such policies of insurance (which, in GMAC's sole discretion, shall either be
used towards the repair, restoration or replacement of the Collateral, or the
satisfaction of Borrower's obligations hereunder), and for making all
determinations and decisions with respect to such policies of insurance. In
the event Borrower or any Dealer, at any time or times hereafter, fails to
obtain or maintain any of the policies of insurance required above or to pay
any premium in whole or in part relating thereto, then GMAC, without waiving or
releasing any obligation or default by Rush Group hereunder, may (but will be
under no obligation to) at any time or times thereafter obtain and maintain
such policies of insurance and pay such premiums and take any other action with
respect thereto which GMAC deems advisable. All sums so disbursed by GMAC,
including reasonable attorneys' fees, court costs, expenses and other charges
relating thereto, will be payable, on demand, by Rush Group to GMAC, will bear
interest until paid in full at the interest rate per annum equal to the Prime
Rate plus 1.00 percentage point (subject, if applicable, to the 1.00 percentage
point reduction under the wholesale incentive program described above) and will
be additional indebtedness hereunder secured by the Collateral. In addition,
Rush Group will obtain and maintain in full force and effect policies of
liability, workers compensation and business interruption insurance in amounts
at least equal to that customarily carried by persons or entities conducting
comparable businesses.
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Section 6.11 Environmental Matters.
(a) From the Effective Date, Borrower, Dealers and any of its agents,
authorized representatives and employees (collectively "Agents") shall not
engage in any of the following prohibited activities, and Rush Group will use
their best and diligent efforts to see that their invitees, tenants and
contractors, and such persons' employees, agents, and invitees, shall not:
(i) cause or permit any release, discharge, or threat of
release of Hazardous Material on or from any Facility.
(ii) cause or permit any manufacturing, transporting,
spilling, leaking, or dumping of Hazardous Material in or on any
portion of any Facility, except in the ordinary course of Rush Group's
business on the Facility and in a manner not to allow any
contamination of the Facility and in accordance with all federal,
state and local Laws relating to Hazardous Material or other
environmental matters.
(iii) cause or permit any holding, handling or retaining of
Hazardous Material in or on any portion of any Facility, except in the
ordinary course of Rush Group's business on the Facility and in a
manner not to allow any contamination of the Facility and in
accordance with all federal, state and local Laws relating to
Hazardous Material or other environmental matters.
(iv) otherwise place, keep, or maintain, or allow to be
placed, kept, or maintained, any Hazardous Material on any portion of
any Facility, except in the ordinary course of Rush Group's business
on the Facility and in a manner not to allow any contamination of the
Facility and in accordance with all federal, state and local Laws
relating to Hazardous Material or other environmental matters.
Rush Group and their Agents will comply, and cause all Facilities to comply,
with all Laws of all authorities having Jurisdiction over Rush Group or their
Agents, any Facility, or the use of the Facility and pertaining to any
Hazardous Material.
(b) If Hazardous Material is discovered on any Facility, Rush Group
will pay (or cause those responsible to pay) immediately when due the cost of
removal of any Hazardous Material from the Facility (or other appropriate
remediation of the Hazardous Material) in compliance with all governmental
requirements, and keep the entire Facility free of any lien imposed pursuant to
any Laws having to do with the removal of Hazardous Material. Within 30 days
after
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demand by GMAC, Rush Group will obtain and deliver to GMAC a bond, letter of
credit, or similar financial assurance for the benefit of GMAC, evidencing, to
GMAC's satisfaction in its sole, absolute discretion, that the necessary funds
are available to pay the cost of removing, treating, and disposing of all
Hazardous Material on the Facility or any contamination caused thereby, and
discharging any assessments or liens which may be established on the Facility
as a result thereof.
(c) Borrower and each Dealer will:
(i) Give written notice to GMAC immediately upon their
acquiring knowledge of the presence of any Hazardous Material on any
Facility (other than that used in the ordinary course of Rush Group's
business) or of any Hazardous Material contamination thereon, with a
full description thereof;
(ii) Immediately advise GMAC in writing of any notices
received by them or their Agents alleging that any Facility contains
Hazardous Material or contamination thereof, or that a violation or
potential violation of any Hazardous Material Laws by Rush Group or
their agents, or the Facility exists;
(iii) Immediately advise GMAC in writing upon discovery of
any and all enforcement, cleanup, removal or other governmental or
regulatory actions instituted, completed or threatened with respect to
any Facility or any real estate adjoining the Facility; and
(iv) Immediately advise GMAC in writing upon Rush Group's
discovery or any discovery by their Agents of any occurrence or
condition on any real property adjoining or in the vicinity of any
Facility which does, or could, cause the Facility, or any part
thereof, to contain Hazardous Material or otherwise be in violation of
any Hazardous Material Laws or cause the Facility to be subject to any
restrictions on the ownership, occupancy, transferability or use
thereof under any Hazardous Material Laws. Nothing in this Section
6.11(c)(iv) is intended or shall operate to create a duty on the part
of Rush Group or any of its Agents to inquire as to the condition
(environmental or otherwise) of any property not owned or leased by
Rush Group.
(d) GMAC will have the right, but not the obligation, to cause all
Hazardous Material and Hazardous Material contamination found on or in any
Facility (except that used in the ordinary course of Rush Group's business) to
be removed therefrom or remediated on site if cost effective and permitted by
law. In such
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event, the cost of the removal or remediation, including all expenses, charges,
and fees incurred by any GMAC in connection therewith, including attorneys',
engineers', and consultants' fees, shall be payable by Rush Group on demand.
Rush Group will give to GMAC and its Agents access to the Facility for such
purposes and Rush Group hereby grant to GMAC and its Agents full right and
authority to remove any such Hazardous Material and Hazardous Material
contamination from the Facility or to remediate it on site if cost effective
and permitted by law.
(e) If at any time during the term of any Loan, GMAC has reasonable
cause to believe that an environmental condition in violation of Section 5.16
above exists (other than in the ordinary course of Rush Group's business), GMAC
may notify Rush Group in writing that it desires a site assessment or
environmental audit ("Audit") of any or all Facility(s) to be made, and at any
time thereafter cause such Audit to be made of the Facility(s) at Rush Group's
sole expense. Such Audit(s) will be performed in a manner reasonably
calculated to confirm and verify compliance with the provisions of this Section
6.11. Rush Group will reasonably cooperate with the persons conducting the
Audit to allow entry and reasonable access to all portions of the Facility(s)
for the purpose of the Audit(s), to supply the auditors with all available
historical and operational information regarding the Facility(s), as may
reasonably be requested by the auditors, and to make available for meetings
with the auditors appropriate personnel having knowledge of matters relevant to
the Audit(s). Rush Group will comply, at their sole cost and expense, with all
recommendations contained in the Audit(s) to the extent necessary to bring Rush
Group into compliance with the other provisions of the Section 6.11, including
any recommendations for additional testing and studies to detect the presence
of Hazardous Material, or to otherwise confirm and verify Rush Group's
compliance with the provisions of this Section, to the extent required by GMAC.
(f) The representations and obligations of Rush Group under this
Section 6.11 shall, with respect to each tract or parcel of real property
constituting the Real Estate, remain in effect until GMAC releases its liens in
any applicable part of the Real Estate; upon such release, the obligations
shall cease only as to that portion of the Real Estate released. Without
limiting the foregoing, it is expressly understood that if, for example, GMAC
becomes the owner of any part of the Real Estate through foreclosure, deed in
lieu of foreclosure or otherwise, all obligations of Rush Group under this
Section 6.11 shall remain in full force and effect.
Section 6.12 Indemnification. Rush Group will defend, indemnify and
hold GMAC (including the successors, assigns, employees, agents, officers and
directors of GMAC) harmless from and against any and all actions, claims,
losses, liabilities,
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damages and expenses (including, without limitation, cleanup costs and
reasonable attorneys' fees) arising from or relating to any breach of any
covenants, agreements or obligation arising under this Agreement or any
inaccuracy of or omission from any representation or warranty of Rush Group set
forth in this Agreement, including without limitation, those arising directly
or indirectly from, or relating, to the handling, manufacture, transport,
storage, treatment, emission, spill, leak, dump or disposal of any Hazardous
Material by or in respect of Rush Group or any Collateral. This indemnity will
apply notwithstanding any negligent or other contributory conduct by or on the
part of GMAC (except to the extent the actions, claims, losses, liabilities,
damages or expenses are solely attributable to the gross negligence or willful
or wanton misconduct of GMAC) or any one or more other persons or entities, and
will be enforceable notwithstanding any attempts by Rush Group to exercise due
diligence. The loss, liability, damage, cost or expense which is covered by
this indemnity will include, without limitation, all foreseeable consequential
damages; the costs of any required or necessary repair, cleanup or
detoxification of any Facility, including the soil and ground water thereof,
and the preparation and implementation of any closure, remedial or other
required plans; damage to any natural resources; and all reasonable costs and
expenses incurred by GMAC in connection with the above, including but not
limited to, attorneys' and consultants' fees. The provisions of this Section
6.12 will survive repayment of the Loans or other obligation to GMAC in full
and expiration or termination of this Agreement.
Section 6.13 Further Assurances. At its costs and expense, upon
request of GMAC, Rush Group will duly execute and deliver or cause to be duly
executed and delivered, to GMAC such further instruments, documents,
certificates, financing and continuation statements, and do and cause to be
done such further acts that may be reasonably necessary or advisable in the
opinion of GMAC to carry out more effectively the provisions and purposes of
this Agreement and the other Loan Documents.
Section 6.14 Future Dealers. In the event any future entity formed
by Rush becomes a "Dealer" subject to the terms of this Agreement, such new
Dealer shall execute a Guaranty Agreement on a form acceptable to GMAC
conforming to the laws of the state where that Dealer does business. Rush
shall also execute a Guaranty Agreement of any obligations of the Dealers
pursuant to this Agreement, including without limitation any Wholesale Floor
Plan Loans made to Dealers under Article IV. From time to time GMAC may
require members of the Rush Group to execute such acknowledgments, consents,
revised guaranty agreements and the like to affirm and ratify the obligations
of each member of the Rush Group for the payment and performance of all
Obligations hereunder.
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ARTICLE VII
NEGATIVE COVENANTS OF BORROWER
Rush Group covenants and agrees that on and after the Effective Date,
while any part of the Indebtedness remains unpaid, they shall not cause or
permit, without the written consent of GMAC (which consent shall not be
unreasonably withheld or delayed):
Section 7.01 Reorganizations, Acquisitions, Change of Name. (a) merge
or consolidate with or into any partnership, trust, or corporation or other
entity whatsoever; or (b) sell, lease, transfer, or otherwise dispose of any of
its assets which is greater than ten (10%) of the aggregate total assets of
Rush Group (except in the ordinary course of business), whether now owned or
hereafter acquired.
Section 7.02 Management: Ownership. Except in the case of unforeseen
death disability, or other similar emergency, not make any significant change
in its structure or management.
Section 7.03 Restriction on Other Indebtedness. Incur any
indebtedness for borrowed money or extensions of credit except:
(a) the Obligations;
(b) indebtedness incurred in the ordinary course of business for
necessary merchandise, services, equipment, materials, and supplies, all of
which will be paid not more than 60 days from the due date of invoice except
when being contested in good faith;
(c) any other indebtedness the repayment of which is expressly
subordinated, in writing satisfactory to GMAC in its sole, absolute discretion,
to the repayment to GMAC of all Obligations;
(d) indebtedness relating to liens permitted by Sections 6.05 above;
(e) indebtedness secured by mortgages or deed of trust liens on real
estate which is financed with another lender; or
(f) any other indebtedness of Rush Group not exceeding in the
aggregate $5,000,000.
Section 7.04 Loans and Investments. Lend or advance money, credit or
property to any Person, or invest in (by capital contribution or otherwise), or
purchase or repurchase the stock or indebtedness, of all or a substantial part
of the assets or
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properties of any Person, or agree to do any of the foregoing, except for:
(a) direct obligations of, or obligations the principal of and
interest on which are unconditionally guaranteed by, the United States of
America and which mature within one year from the date of acquisition thereof;
(b) investments in commercial paper of any corporation with a
maturity not in excess of one year from the date of acquisition thereof and
rated P-1 or better by Xxxxx'x Investors Services Inc., or A-1 or better by
Standard & Poor's Corporation;
(c) investments in negotiable or non-negotiable time certificates
of deposit and time deposits, with a maturity not in excess of one year from
the date of acquisition thereof, issued by or placed with, and money market
deposit accounts issued or offered by any commercial bank organized and
existing under the laws of the United States of America or under any states of
the United States of America and having a combined capital and undivided
surplus of not less than $500,000,000, provided, however, that such
certificates of deposit or time deposits at any one bank shall at no time
exceed ten percent (10%) of the undivided capital and surplus of such bank;
(d) (omitted)
(e) advances by Borrower or a Dealer to another entity in the Rush
Group whether constituting capital contributions or indebtedness or otherwise
made; provided, no Event of Default is occurring at the time of such advance
and no Event of Default would occur as a result thereof;
(f) acquisition of all or any portion of any assets or interests
of any Person engaged in the automobile dealership business; provided that the
Borrowers deliver prior written notice of any such acquisition to GMAC; and
(g) any guaranty of any of the indebtedness permitted by Section 7.03
hereof by any member of the Rush Group.
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ARTICLE VIII
CONDITIONS PRECEDENT
Notwithstanding any other terms of this Agreement, GMAC will not be
required to make any Loans to Borrower unless the following conditions have
been met as to Rush Group on or before the date hereof (the "Effective Date")
and are also met on the date of each Credit Advance or Wholesale Credit
Advance, except as noted herein.
Section 8.01 Representations True. The representations and
warranties of Rush Group contained in this Agreement and in any other Loan
Document are true; there is not then in existence any Event of Default
hereunder or any event which upon the service of notice or passage of time
would constitute an Event of Default hereunder; there is not any suit or
proceeding at law or in equity or of any governmental authority instituted or,
to the knowledge of any of the Rush Group, threatened which in either case
would materially adversely affect the financial condition of Borrower or any
Dealer or the Collateral.
Section 8.02 Opinion of Counsel. GMAC will have received an opinion
of counsel to Rush Group in the form required by GMAC.
Section 8.03 Good Standing and Certified Copies. GMAC will have
received (a) a current certificate of corporate status with respect to each of
the Rush Group, or confirmation by telecommunication, if such confirmation is
available, from the jurisdiction of incorporation or organization of each such
entity and each foreign jurisdiction where Borrower's or a Dealer's failure to
be duly qualified or licensed would have a Material Adverse Effect on the
financial condition of such entity or on the Collateral; (b) certified copies
of the corporation charter and by-laws of Borrower and each Dealer, to the
extent applicable; (c) signature and incumbency certificates with respect to
the officers executing this Agreement, and the other Loan Documents; and (d) a
certified copy of the corporate action taken by Borrower and each Dealer
authorizing execution, delivery and performance of this Agreement and the other
Loan Documents.
Section 8.04 Guarantees. GMAC will have received guarantees executed
and delivered by the Guarantors in accordance with Section 1.01(n) above.
Section 8.05 Loan Documents. All of the Loan Documents relating to
the Collateral, including without limitation the Guaranty Agreements, will have
been executed by Borrower and the Dealers, or other applicable persons or
entities, and delivered to GMAC.
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Section 8.06 Material Adverse Change. No material adverse change
will have occurred in the business, operations, financial condition or
prospects of Rush Group or the Collateral.
Section 8.07 Due Diligence: UCC Filings and Searches. GMAC will, to
its satisfaction, have completed and received all audits, inspections,
examinations and surveys deemed necessary in the sole, absolute discretion of
GMAC with respect to the Collateral and the financial and business condition of
Borrower or Dealers; GMAC will have received (a) confirmation of UCC-1
Financing Statements with respect to Rush Group describing the Collateral
having been filed in the proper places in each jurisdiction designated by GMAC
and (b) UCC and other record searches acceptable to GMAC showing the first
priority of GMAC's security interest in the Collateral.
Section 8.08 Sales Authority. Except as disclosed on the attached
Schedule 8.08, Borrower or each Dealer, as the case may be, will have been duly
and continuously approved (a) by the appropriate original manufacturer or
distributor of motor vehicles to sell and service the brand of new motor
vehicles contemplated by the parties hereto to be sold by Borrower or such
Dealer; and (b) by any pertinent local, state, or federal government agency to
purchase, sell, lease, and service motor vehicles as a new and used dealer
thereof.
Section 8.09 Repurchase Agreements. GMAC will have executed the
customary vehicle factory (a) drafting and delivery instructions and (b)
repurchase agreements between GMAC and the manufacturer or distributor of the
new motor vehicles which Rush Group intends to acquire.
Section 8.10 Real Estate Loans. All conditions set out in Article
III have been met to the satisfaction of GMAC.
ARTICLE IX
EVENTS OF DEFAULT
Section 9.01 Events of Default. The occurrence of any one or more of
the following events shall constitute an "Event of Default":
(a) Payment of Wholesale Floor Plan Loans. Failure to make any
payments of principal or interest when and as due under the promissory notes or
other instruments evidencing the Wholesale Floor Plan Loans.
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(b) Payment of Borrowing Base Loans, Real Estate Loans, and future
working capital and equipment loans. Failure to make any payments of principal
or interest within 3 Business Days following notification from GMAC of payments
being past due under the promissory notes or other instruments evidencing the
Borrowing Base Loans, Real Estate Loans, and future working capital and
equipment loans.
(c) Payment of Other Obligations. Failure to pay, when due, any
other monetary obligation under any of the Loan Documents.
(d) Noncompliance with Loan Documents. Borrower, any Dealer or
Guarantor shall fail to perform or observe any of the other agreements,
covenants or conditions contained in this Agreement, in any other Loan Document
or otherwise in existence with GMAC or any of its affiliates, and such default
shall continue for more than 10 Business Days
(e) Default on Other Debt. Borrower, any Dealer or Guarantor
shall fail to pay all or any part of the principal of or interest on any other
indebtedness, when due (whether at maturity, by acceleration or otherwise) and
such default shall not be cured within the period of grace, if any, specified
in the evidence of such other indebtedness.
(f) Misrepresentations. Any representation, warranty or other
statement made or furnished to GMAC by or on behalf of Borrower, any Dealer or
Guarantor in this Agreement, any of the other Loan Documents or any instrument,
certificate or financial statement furnished in compliance with or in reference
thereto proves to have been false or misleading in any material respect.
(g) Challenge to Agreement. Borrower, any Dealer or Guarantor
shall challenge or contest in any action, suit or proceeding the legality,
validity or enforceability of this Agreement or any of the other Loan
Documents, or the perfection or priority of any lien granted to GMAC.
(h) Repudiation of or Default Under Guaranty Agreements. Any
Guarantor shall revoke or attempt to revoke the Guaranty Agreement signed by
such Guarantor, or shall repudiate such Guarantor's liability thereunder or
shall be in default under the terms thereof.
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(i) Bankruptcy, Insolvency, etc. The occurrence of any of the
following:
(i) The appointment of a receiver, trustee, custodian,
conservator, or liquidator, or other similar official for Borrower,
any Dealer or Guarantor, any of its property, or any other property of
Borrower, any Dealer or Guarantor.
(ii) Borrower, any Dealer or Guarantor shall generally not
pay its debts as they become due or shall admit in writing an
inability to pay its debts, or shall make a general assignment for the
benefit of creditors.
(iii) Borrower, any Dealer or Guarantor shall commence any
case, proceeding or other action seeking relief, reorganization,
arrangement, adjustment, liquidation, dissolution or composition of
such Borrower, any Dealer or Guarantor or its debts under any debtor
relief laws.
(iv) Any case, proceeding or other action is commenced
against Borrower, any Dealer or Guarantor seeking to have an order for
relief entered against such Borrower, any Dealer or Guarantor, as
debtor, or seeking a reorganization, arrangement, adjustment,
liquidation, dissolution or composition of Borrower, any Dealer or
Guarantor or their debts under any debtor relief laws, or seeking an
appointment of a receiver, trustee, custodian or other similar
official for Borrower, any Dealer or Guarantor or for all or any of
its property, or any other property of Borrower, any Dealer or
Guarantor and such case, proceeding or other action: (i) results in
the entry of an order for relief against Borrower, any Dealer or
Guarantor and (ii) remains undismissed for a period of 30 days after
commencement.
(v) Borrower, any Dealer or Guarantor shall have concealed,
removed or permitted to be concealed or removed, any part of its
property, with intent to hinder, delay or defraud any of its
creditors; or made or suffered a transfer of any of its property which
may be fraudulent under any bankruptcy, fraudulent conveyance or
similar law; or shall have made any transfer of its property to or for
the benefit of a creditor at a time when other creditors similarly
situated have not been paid (unless adequate provision in cash has
been made for payment of the similar claim); or shall have suffered or
permitted, while insolvent, any creditor to obtain a lien upon any of
the Collateral through legal proceedings which is not vacated within
30 days.
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(vi) Borrower, any Dealer or Guarantor shall have suffered
(i) a casualty as to any material asset or assets used in the conduct
of its business which is not, except for deductibles reasonably
acceptable to GMAC, fully covered by insurance or (ii) a material
adverse change in the business, properties, conditions, financial or
otherwise of Rush Group, as a whole.
(j) Termination of Franchise. Any Franchise Agreement shall be
terminated, whether according to its terms or action taken by any party
thereto, or any vehicle manufacturers take any action against Borrower or any
Dealer that could have a Material Adverse Effect.
(k) Wholesale Credit Advance. Borrower or any Dealer shall fail
to maintain a Wholesale Credit Advance except where, with the prior written
consent of GMAC, the Dealer has been sold or otherwise transferred or its
operations terminated.
(l) Cross-Default. The occurrence of (i) any Event of Default
under this Agreement; (ii) a default under any other Loan Document; or (iii) a
default under any other agreement between Borrower, any Dealer or Guarantor and
GMAC now existing or hereafter arising, will constitute an immediate default of
this Agreement, the Loan Documents and all other such agreements.
ARTICLE X
REMEDIES
Upon an Event of Default, GMAC shall have, in addition to any other
rights or remedies available at law or in equity, the following rights and
remedies:
Section 10.01 Termination of Agreement. GMAC may terminate this
Agreement or any part thereof. By way of example only, GMAC may terminate the
Line of Credit under Article II (the Borrowing Base Line of Credit) and the
Wholesale Facility, Other Financing and Retail Facility under Article IV (the
Wholesale Floor Plan Loans).
Section 10.02 Specific Remedies. GMAC shall have the right to:
(a) institute proceedings to collect all or a portion of the
Indebtedness and to recover a judgment for the same and to collect upon such
judgment out of any property of Borrowers wherever situated;
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(b) to offset and apply any monies, credits or other proceeds of
property of Rush Group that has or may come into possession or under the
control of GMAC against any amount owing by Rush Group to GMAC;
(c) with respect to accounts, contract rights, chattel paper, tax
refunds and general intangibles constituting Collateral herein, GMAC:
(i) may settle, adjust and compromise all present and future
claims arising thereunder or in connection therewith;
(ii) may sell, assign, pledge or make any other agreement
with respect thereto or the proceeds thereof;
(iii) may notify all such account, contract right, or other
debtors of GMAC's interest therein and require direct payment to GMAC
of such obligations;
(iv) may receive, sign, endorse, and deliver in its name or
the name of Borrower or any Dealer any and all notes, instruments,
documents, titles, negotiable instruments and the like necessary and
appropriate to effect the collection of such intangibles, and
Borrowers hereby waive notice of presentment, protest and non-payment
of any instrument so endorsed;
(v) is hereby constituted and appointed by Borrower and
Dealers as their attorney-in-fact with power to accept and to receipt
and endorse Borrower's and Dealers' names upon any notes, acceptances,
checks, drafts, money orders or other evidences of payment or
Collateral that may come into GMAC's possession; to notify the Post
Office authorities to change the address for delivery of mail
addressed to Borrower and Dealers to such address as GMAC may
designate; to do all other acts and things necessary to carry out this
Agreement. Except for gross negligence and willful misconduct, all
acts of said attorney or designee are hereby ratified and approved,
and said attorney or designee shall not be liable for any acts of
omission or commission, nor for any error of judgment or mistake of
act or law made in good faith; this power being coupled with an
interest is irrevocable while any of the Obligations remains unpaid;
(d) subject to any specific, contrary provision in any other security
agreement executed now or in the future: sell or lease the Collateral, or any
portion thereof, after giving 5 days' written notice, at public or private
sale. The sale by GMAC of less than the whole of the Collateral shall not
exhaust the power
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of sale, and GMAC is empowered to make successive sales under such power until
all of the Collateral shall be sold; the liens, security interests and rights
hereunder shall remain in full force and effect as to the unsold portion of the
Collateral. The decision to sell all or only a portion of the Collateral at
any sale shall be at the sole discretion of Secured Party.
(e) require Rush Group to assemble all or any of the Collateral
(except Real Estate) and make it available to GMAC at a place to be designated
by GMAC that is reasonably convenient to the parties.
Rush Group agree that the sale by GMAC of any new or unused property
repossessed by GMAC to the original seller thereof, or to any person designated
by such seller, at the invoice cost thereof to Rush Group less any credits
granted to Rush Group with respect thereto and reasonable costs of
transportation and reconditioning, shall be deemed to be a commercially
reasonable means of disposing of the same. Rush Group further agree that if
GMAC shall solicit bids from three or more other sellers or dealers in the type
of property repossessed by GMAC hereunder, any sale by GMAC of such property in
bulk or in parcels to the bidder submitting the highest cash bid therefor also
shall be deemed to be a commercially reasonable means of disposing of the same.
Notwithstanding the foregoing, it is expressly understood that such means of
disposal shall not be exclusive, and that GMAC shall have the right to dispose
of any property repossessed hereunder by any commercially reasonable means.
Section 10.03 Remedies Cumulative. GMAC shall have all rights and
remedies contained in any other Loan Document, all of which rights and remedies
shall be cumulative of those granted herein, or otherwise available at law or
in equity. All of GMAC's rights and remedies may be enforced successively or
concurrently. GMAC's rights shall include all rights of a secured party under
the Uniform Commercial Code applicable in any particular state.
Section 10.04 Expenses. Rush Group shall pay all expenses and
reimburse GMAC for any expenditures, including reasonable attorney fees and
legal expenses, in connection with GMAC's exercise of any of its rights and
remedies under this Agreement.
Section 10.05 Proceeds. Proceeds realized by GMAC on the sale or
other disposition of the Collateral, after payment of all expenses incurred by
GMAC in enforcing the Indebtedness or in retaking, holding, preparing for sale
or lease, selling, leasing or otherwise disposing of or realizing on the
Collateral or the Indebtedness, shall be applied by GMAC to the remaining
Indebtedness in such manner as GMAC shall elect.
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Section 10.06 Default Interest. In addition to the remedies provided
above or elsewhere in this Agreement, all Indebtedness which is not paid when
due, by acceleration, at maturity or otherwise, shall bear interest (i) in the
case of Indebtedness evidenced by promissory notes, at the default rate (if
any) provided in the applicable notes, and (ii) in the case of all Indebtedness
not covered by item (i), at the highest nonusurious default rate provided for
in any of the notes.
Section 10.07 No Agency. Nothing herein contained shall be construed
to constitute Borrower or any Dealer as agent of GMAC for any purpose
whatsoever, and GMAC shall not be responsible nor liable for any shortage,
discrepancy, damage, loss or destruction of any part of the Collateral wherever
the same may be located and regardless of the cause thereof, except to the
extent the same results from GMAC's own gross negligence or willful misconduct.
GMAC shall not, under any circumstances or in any event whatsoever, have any
liability for any error or omission or delay of any kind occurring in the
settlement, collection or payment of any of the Collateral or any instrument
received in payment thereof or for any damage resulting therefrom, except to
the extent the same results from GMAC's own gross negligence or willful
misconduct. GMAC does not by anything herein or in any assignment or
otherwise, assume any of Rush Group's obligations under any contract or
agreement assigned to GMAC, and GMAC shall not be responsible in any way for
the performance by Rush Group of any of the terms and conditions thereof.
ARTICLE XI
MISCELLANEOUS
Section 11.01 GMAC's Accounts. GMAC shall maintain on its books in
accordance with its usual practice an account or accounts with respect to the
Loans, which account or accounts shall include, without limitation, (i) the
outstanding principal amount of each of the Loans, (ii) the amount of principal
and interest due under each of the Loans and the required payment dates, (iii)
all other fees, costs, expenses, losses and indemnities due under this
Agreement or any other Loan Document, and (iv) all amounts received by GMAC
with respect to the foregoing. For purposes of any legal action or proceeding
arising out of or in connection with this Agreement or any other Loan Document,
and for all other purposes, the entries made in such account or accounts
maintained by GMAC pursuant to this Section shall create a presumption as to
the existence and amounts of the foregoing, absent manifest error. However,
Rush Group shall have 30 days from the date the GMAC Account statement is
received to contest the accuracy of the statement; the failure of Rush Group to
contest the accuracy shall constitute conclusive evidence of its accuracy. If
Rush Group contests the accuracy with
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said 30 days, GMAC shall have 30 days to reconcile the disputed GMAC Account
balance. The failure by GMAC to maintain such account or accounts shall not in
any manner affect the Indebtedness.
Section 11.02 Notices. All notices or other communications required
or permitted to be given pursuant to the provisions of this Agreement shall be
in writing and shall be considered as properly given if mailed by first class
United States mail, postage prepaid, registered or certified with return
receipt requested, or by delivering same in person to the intended addressee,
or by prepaid telegram, telex or telecopy. Notice given in any other manner
shall be effective only if and when received by the addressee. For purposes of
notice, the addresses of the parties shall be as set forth below; provided,
however, that either party shall have the right to change its address for
notice hereunder to any other location within the continental United States by
the giving of 30 days' notice to the other party in the manner set forth
hereinabove. The addresses for notice hereunder are:
If to Rush or any member X.X. Xxx 00000
of the Rush Group: Xxx Xxxxxxx, Xxxxx 00000-0000
And:
If to RTC-California: X.X. Xxx 000
Xxxx Xxxxxx, Xxxxxxxxxx 00000-0000
If to RTC-Louisiana: 0000 Xxxxxxxxxx Xxxxx Xxxxxxxxx
Xxxxxxx Xxxx, Xxxxxxxxx 00000
If to RTC-Oklahoma: X.X. Xxx 000000
Xxxxxxxx Xxxx, Xxxxxxxx 00000
If to RTC-Texas: X.X. Xxx 000000
Xxx Xxxxxxx, Xxxxx 00000-0000
If to RTC-Colorado: X.X. Xxx 00000
Xxxxxx, Xxxxxxxx 00000
For notices to Rush Xx. Xxxxxxx X. Xxxxxx
or any Dealer, with Fulbright & Xxxxxxxx L.L.P.
a copy to: 000 Xxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxx 00000-0000
If to GMAC: X.X. Xxx 00000
Xxx Xxxxxxx, Xxxxx 00000
Attn: Branch Manager
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For notices to GMAC, Xx. Xxxx Xxx XxXxxxxx
with a copy to: General Motors Acceptance Corporation
X.X. Xxx 00000
Xxxxxxx, Xxxxxxxx 00000
Section 11.03 Waiver. No course of dealing, or any failure by GMAC
to insist, or any election by GMAC not to insist, upon any of Rush Group's
strict performance of any of the terms, provisions or conditions of the Loan
Documents shall not be deemed to be a waiver of same or of any other term,
provision or condition thereof; and GMAC shall have the right at any time
thereafter to insist upon strict performance by Borrower or any Dealer of any
and all of same. Specifically, no Advance by GMAC when there exists an Event
of Default under Article IX hereinabove shall in any way preclude GMAC from
thereafter declaring such failure to comply to be an Event of Default
hereunder.
Section 11.04 Survival. All agreements, representations, warranties
and covenants of Borrower and Dealers contained in this Agreement shall survive
the execution of this Agreement and the other Loan Documents, and the making of
the Loans; provided, however, that to the extent any agreement, representation,
warranty or covenant of Borrower or any Dealer herein, either by its express
terms or by the determination of a court of competent jurisdiction, survives
the repayment of the Loans and the expiration or termination of this Agreement,
such agreement, representation, warranty or covenant shall in no event survive
more than 2 years from the later of the (i) date of repayment of the Loans or
(ii) the expiration or termination of this Agreement.
Section 11.05 Limitations on Interest. All agreements between GMAC,
Borrower and Dealers, whether now existing or hereafter arising and whether
written or oral, are hereby limited so that in no contingency, whether by
reason of demand for payment or acceleration of the maturity hereof or
otherwise, shall the interest contracted for, charged or received by GMAC
exceed the maximum amount permissible under applicable law. If, from any
circumstance whatsoever, interest would otherwise be payable to Lender in
excess of the maximum lawful amount, the interest payable to GMAC shall be
reduced to the maximum amount permitted under applicable law; and if from any
circumstance GMAC shall ever receive anything of value deemed interest by
applicable law in excess of the maximum lawful amount, an amount equal to any
excessive interest shall be applied to the reduction of the principal balance
of the Indebtedness and not to the payment of interest, or if such excessive
interest exceeds the principal balance such excess shall be refunded to
Borrower and/or Dealers, as applicable. All interest paid or agreed to be paid
to GMAC shall, to the extent permitted by applicable law, be amortized,
prorated, allocated, and spread throughout the full period until payment in
full of the principal so that the interest hereon for
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such full period shall not exceed the maximum amount permitted by applicable
law. This paragraph shall control all agreements between GMAC, Borrower and
Dealers.
Section 11.06 Applicable Law. This Agreement and the other Loan
Documents (except as may be otherwise expressly provided in such other Loan
Documents), shall be governed by and construed in accordance with the laws of
the State of Texas and the laws of the United States applicable to transactions
within such State. The Guaranty Agreements, Security Agreements or other Loan
Documents (except this Agreement) executed by a Dealer or Guarantor doing
business in a state other than Texas, or granting a lien on collateral located
in a state other than Texas, shall be governed by the laws of the state
specified in such documents.
Section 11.07 Venue and Waiver of Jury Trial. The parties agree that
all actions or proceedings arising in connection with this Agreement and any of
the Loan Documents shall be tried and litigated only in the state and federal
courts located in the State of Texas or, at the sole option of GMAC, in any
other court in which GMAC shall initiate legal or equitable proceedings and
which has subject matter jurisdiction over the matter in controversy. All the
parties to this Agreement waive any right each may have to assert the doctrine
of forum non conveniens or to object to venue to the extent any proceeding is
brought in accordance with this Section 11.07. All the parties to this
Agreement hereby further jointly and severally waive any right to trial by jury
with respect to any action, claim, suit or proceeding in respect of or relating
to this Agreement or any other Loan Document and/or any relationship between
GMAC and Rush Group.
Section 11.08 Severability. If any provision hereof or of any of
the other Loan Documents or the application thereof to any person or
circumstance shall, for any reason and to any extent, be invalid or
unenforceable, neither the application of such provision to any other person or
circumstance nor the remainder of the instrument in which such provision is
contained shall be affected thereby, but rather shall be enforced to the
greatest extent permitted by law.
Section 11.09 Construction. This Agreement and each other Loan
Document are being entered into by competent and experienced businessmen,
represented by counsel, and the parties acknowledge that each party and its
counsel have reviewed and revised this Agreement and the Loan Documents;
therefore, the normal rule of construction to the effect that any ambiguities
are to be resolved against the drafting party shall not be employed in the
interpretation of this Agreement, the Loan Documents or any amendments or
exhibits hereto. The parties intend that all Loan Documents shall be construed
and interpreted in a consistent manner.
-47-
52
Section 11.10 GMAC's Discretion. In any instance hereunder
(including any exhibits, schedules, annexes or addenda hereto) where GMAC's
satisfaction, approval or consent or the exercise of GMAC's judgment is
required, the granting or denial of such satisfaction, approval or consent and
the exercise of such judgment shall be within the sole discretion of GMAC.
This provision shall govern any such satisfaction requirements, consents,
approvals or exercise of judgment required in connection with any of the Loan
Documents.
Section 11.11 No Third Party Beneficiary. This Agreement is for the
sole benefit of GMAC and Rush Group and is not for the benefit of any third
party.
Section 11.12 Rush Group In Control; No Partnership. In no event
shall GMAC's rights and interests under the Loan Documents be construed to give
GMAC the right to, or be deemed to indicate that GMAC is in control of the
business, management or properties of Rush Group or has power over the daily
management functions and operating decisions made by Rush Group. Nothing
contained herein or in any of the other Loan Documents shall be construed as
creating joint venture, partnership, tenancy-in-common or joint tenancy
arrangement between GMAC and Rush Group. The relationship of GMAC and Rush
Group is and at all times shall be solely that of debtor and creditor.
Section 11.13 Successors and Assigns. This Agreement shall be
binding upon and inure to the benefit of the parties hereto and their
respective heirs, successors, legal representatives and assigns. However,
Borrowers shall not assign or encumber this Agreement or any rights herein, it
being expressly understood and agreed that Rush Group's rights hereunder are
not assignable.
Section 11.14 Number and Gender. Whenever used herein, the singular
number shall include the plural and the plural the singular, and the use of any
gender shall be applicable to all genders. The duties, covenants, obligations,
and warranties of Borrower and Dealers in this Agreement shall be joint and
several obligations of Borrower and of each Dealer if more than one.
Section 11.15 Captions. The captions, headings, and arrangements
used in this Agreement are for convenience only and do not in any way affect,
limit, amplify, or modify the terms and provisions hereof.
Section 11.16 Time of the Essence. Time is of the essence with
respect to each and every matter pertaining to performance under this Agreement
and of each provision hereof.
-48-
53
Section 11.17 Executed Copies. This Agreement may be executed in any
number of counterpart copies, each of which counterparts shall be deemed an
original for all purposes.
Section 11.18 Entire Agreement of the Parties. This Agreement,
including all agreements referred to or incorporated herein and all recitals
hereto, is the entire agreement among the parties relating to the subject
matter hereof, supersedes all prior agreements, commitments and understandings
among the parties hereto relating to the subject matter hereof, and cannot be
changed or terminated orally, and shall be deemed effective as of the date
hereof. To the extent that the terms of the documents heretofore evidencing
the Borrowing Base Loans, Oklahoma Real Estate Loan, Texas Real Estate Loans or
Wholesale Floor Plan Loans are inconsistent with the terms hereof, or if any
contemporaneous or subsequent documents evidencing said loans are inconsistent
with the terms hereof, the terms of this Agreement shall control.
Section 11.19 Statutory Notice. In accordance with Section 26.02 of
the Texas Business and Commerce Code, GMAC hereby notifies Rush Group that:
THIS WRITTEN LOAN 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.
-49-
54
Executed on the dates indicated below, but to effective as of the date
and year first above written.
General Motors Acceptance Rush Enterprises, Inc.
Corporation
By: /s/ X. X. XXXXXXXX By: /s/ X. X. "XXXXX" RUSH
---------------------------- ----------------------------
Name: X. X. XXXXXXXX Name: X. X. "XXXXX" RUSH
----------------------- -----------------------
Title: Operation Manager Title: President
---------------------- ----------------------
Rush Truck Centers of Rush Truck Centers of
California, Inc. Louisiana, Inc.
By: /s/ X. X. "XXXXX" RUSH By: /s/ X. X. "XXXXX" RUSH
---------------------------- ----------------------------
Name: X. X. "XXXXX" RUSH Name: X. X. "XXXXX" RUSH
----------------------- -----------------------
Title: President Title: President
---------------------- ----------------------
Rush Truck Centers of
Oklahoma, Inc.
By: /s/ X. X. "XXXXX" RUSH
----------------------------
Name: X. X. "XXXXX" RUSH
-----------------------
Title: President
----------------------
-50-
55
EXHIBIT 2.05
WHOLESALE INCENTIVE PROGRAM
[GENERAL MOTORS ACCEPTANCE CORPORATION LETTERHEAD]
June 25, 1998
Mr. W. Xxxxxx Xxxx
Rush Enterprises, Inc.
0000 XX 00 Xxxx
Xxx Xxxxxxx, Xxxxx 00000
Subject: Special Wholesale Incentive Plan Interest Rate Allowances
From time to time GMAC offers to dealers a reduced interest rate on new and used
floor plan finance obligations and certain floating rate loans. This special
rate is offered for competitive reasons as an incentive to encourage dealers to
provide GMAC with continued wholesale financing. It is known as the Wholesale
Incentive Plan ("WIP").
This letter confirms GMAC's agreement to provide you with a WIP. The following
sets forth the percent reduction which GMAC will provide you below the standard
rate of interest we have been charging for your new and used wholesale floor
plan financing, dealer real-estate loans and Borrowing Base Line of Credit. All
wholesale, dealer real-estate loans and Borrowing Base Line of Credit will be at
prime. Existing rates: prime (wholesale); prime plus 1.00p.p. (all dealer
real-estate loans); prime plus 1.25p.p. (Borrowing Base Line of Credit).
Minimum wholesale outstandings must total at least $20 million and GMAC must
retain all current wholesale and dealer loan outstandings for the Rush
dealership franchises presently owned and in the future. GMAC must also be
provided first right of refusal on all future loans and wholesale financing.
The WIP becomes effective as of July 1, 1996. It will remain in effect
indefinitely, subject to modifications, restrictions, qualifications, or
outright cancellation by GMAC at any time in its sole and absolute discretion;
provided that absent any default by you, any such change in the WIP will not be
effective except upon a ninety (90) day notice to you.
Notwithstanding the foregoing, your wholesale credit lines are expressly
subject to the written terms of the Wholesale Security Agreement
under which they were extended. They are discretionary lines of credit and may
be modified, suspended or terminated at our election, and at our sole and
absolute discretion.
/s/ WM. R. XXXXXXX
Xx. X. Xxxxxxx
Area Manager
56
EXHIBIT 2.07
CERTIFICATION REPORT
Parts & Accessories Borrowing Base Credit Line
Loan Agreement Between GMAC and ("Borrower")
dated_________________, 199_ (the "Loan Agreement")
As of _________, 199_
To: Attention: __________, Area Manager
General Motors Acceptance Corporation
000 XX Xxxx 000, Xxxxx 000
Xxx Xxxxxxx, XX 00000
DEALER CERTIFICATION REPORT SUMMARY
-------------------------------------------------------------------------------------------------------------------------------
1 2 3 4 5 6 7 8 9 10 TOTAL
---------------------------------------------------------------------------------------
Parts & Accessories (per Schedule of
Inventory Acct. 242) 1) $ $ $ $ $ $ $ $ $ $ $
---------------------------------------------------------------------------------------
Less: Parts and Accessories in
stock, not owned 2) $ $ $ $ $ $ $ $ $ $ $
---------------------------------------------------------------------------------------
Less: Parts and Accessories known
to be obsolete. 3) $ $ $ $ $ $ $ $ $ $ $
---------------------------------------------------------------------------------------
Adjusted Schedule of Inventory Value
(Line 1 minus 2 & 3) 4) $ $ $ $ $ $ $ $ $ $ $
-------------------------------------------------------------------------------------------------------------------------------
The undersigned hereby certifies that as of the date hereof, the above
information and attached balance sheets (and parts inventory schedules - for
aduits only) of the Rush Truck Group are true and correct and that there exists
no default under the Loan Agreement.
The Monthly Certification Report of Borrower shall be subject to GMAC's
approval. No failure by GMAC to provide notice of approval or notice of
disapproval shall limit or constitute a waiver of any of the rights or remedies
of GMAC hereunder or under any other loan document. Notwithstanding anything
herein to the contrary and notwithstanding that GMAC may have previously
approved any parts and accessories for Inclusion in the Collateral Formula
Amount at a specified value, GMAC may, at any time and from time to time,
revalue any parts and accessories included in the Collateral Formula Amount.
Incident to any such revaluation, the Borrower shall promptly provide to GMAC
any materials GMAC may reasonably require. GMAC, in its sole and absolute
discretion, may determine as a result of any such revaluation to reduce the
amount which any parts and accessories contributes to the Collateral Formula
Amount or to exclude such amount of any parts and accessories entirely, which
determination shall be conclusive and binding in the absence of manifest error.
If GMAC so determines that the Collateral Formula Amount of Borrower is to be
reduced, GMAC shall give written notice thereof to the Borrower stating the
amount of the reduction, the nature of the action taken by GMAC, and the
reduction shall be effective upon GMAC's issuance of that notice.
BORROWER PREPARER'S NAME
-------------------------- ------------------------
DATE OF REPORT PREPARER'S SIGNATURE
-------------------- -------------------
PREPARER'S TITLE
-----------------------
-----------------------------------------------------------------------------------------------------------------------------
1. San Antonio Peterbilt (Med. & Hvy Trucks) 4. Lufkin Peterbilt 7. Tulsa Peterbilt 10. Pharr Peterbilt
-----------------------------------------------------------------------------------------------------------------------------
2. Houston Peterbilt 5. Ark-La-Tex Peterbilt 8. Oklahoma Peterbilt 11.
-----------------------------------------------------------------------------------------------------------------------------
3. Laredo Peterbilt 6. South Coast Peterbilt 9. Denver Peterbilt 12.
-----------------------------------------------------------------------------------------------------------------------------
57
SCHEDULE 5.06
Liens, Security Interests and Encumbrances
Other Than Those in Favor of GMAC
(see attached pages)
58
1. Real Estate Mortgage dated December 1, 1995, from Rush Enterprises, Inc.
("Rush") to Xxxx Consolidated, Inc., covering the Oklahoma County,
Oklahoma real estate covered and described in the Mortgage Assignment and
Security Agreement dated March 1, 1996, from Rush to GMAC recorded in Book
6862, Page 0378 of the Oklahoma County Clerk Records; and
2. The liens shown on the attached summaries of UCC financing statements for
each member of the Rush Group.
59
UCCs on file for
Rush Truck Centers of Texas, Inc.
Rush Truck Centers of Oklahoma, Inc.
Rush Truck Centers of California, Inc.
Rush Truck Centers of Louisiana, Inc.
Rush Truck Centers of Colorado, Inc.
(as of April 30, 1997)
Online Lexis searches were conducted in the following databases on April 30,
1997: (1) Texas Secretary of State--Uniform Commercial Code and Federal Tax
Liens (information current through April 29, 1997); (2) California Secretary of
State--Uniform Commercial Code Lien Filings and Federal and State Tax Liens
(information current through April 30, 1997); (3) Oklahoma Central Filing
Office--Uniform Commerical Code Filings (information current through February
7, 1997); (4) Louisiana Parish Clerk's Office--Uniform Commercial Code Filings
(information current through January 31, 1997); and Colorado Secretary of
State--Uniform Commercial Code Filings information current through March 12,
1997).
The results of the searches, separated by state and debtor, are summarized
below. Filings in which General Motors Acceptance Corporation is the secured
party were omitted.
TEXAS
------------------------------------------------------------------------------
DEBTOR INSTRUMENT # SECURED PARTY
------------------------------------------------------------------------------
Rush Truck Centers of Texas, Inc. 96-163153 Paccar Inc.
Houston Peterbilt, Inc.
(Houston and Lufkin)
------------------------------------------------------------------------------
Rush Truck Centers of Texas, Inc. 96-183894 Paccar Inc.
San Antonio Peterbilt-GMAC
Truck, Inc.
Laredo Peterbilt, Inc.
(San Antonio and Laredo)
------------------------------------------------------------------------------
1
60
CALIFORNIA
--------------------------------------------------------------------------------
DEBTOR INSTRUMENT # SECURED PARTY
--------------------------------------------------------------------------------
Rush Truck Centers of 0000000000 Paccar Inc. and its divisions
California, Inc. dba South
Coast Peterbilt
--------------------------------------------------------------------------------
LOUISIANA
--------------------------------------------------------------------------------
DEBTOR INSTRUMENT # SECURED PARTY
--------------------------------------------------------------------------------
Rush Truck Centers of 08-373190 Paccar Inc.
Louisiana, Inc.
Ark-La-Tex Peterbilt, Inc.
--------------------------------------------------------------------------------
COLORADO
--------------------------------------------------------------------------------
DEBTOR INSTRUMENT # SECURED PARTY
--------------------------------------------------------------------------------
Rush Truck Centers of Colorado 97-2017852 Interstate Building (Billing?)
Service Inc.
--------------------------------------------------------------------------------
Rush Truck Center Peterbilt 97-2017853 Interstate Billing Service Inc.
Greeley
--------------------------------------------------------------------------------
2
61
UCCs on file for Rush Enterprises, Inc. (as of April 25, 1997)
Online Lexis searches were conducted in the following databases on April 25,
1997: (1) Texas Secretary of State-Uniform Commercial Code and Federal Tax Liens
(information current through April 22, 1997); (2) California Secretary of
State-Uniform Commercial Code Lien Filings and Federal and State Tax Liens
(information current through April 18, 1997); (3) Oklahoma Central Filing
Office-Uniform Commercial Code Filings (information current through December
17,1996); (4) Louisiana Parish Clerk's Office-Uniform Commercial Code Filings
(information current through January 31, 1997); and Colorado Secretary of
State-Uniform Commercial Code Filings (information current through March 12,
1997).
The results of the searches, separated by state and debtor, are summarized
below. Filings in which General Motors Acceptance Corporation is the secured
party were omitted.
TEXAS
--------------------------------------------------------------------------------------------
Debtor Instrument # Secured Party
--------------------------------------------------------------------------------------------
Rush Enterprises Inc. 88-000470 Paccar Inc. and Its Divisions
Houston Peterbilt Inc.
Rush Enterprises Inc. 88-000471 Paccar Inc. and Its Divisions
Houston Peterbilt Inc.
Rush Enterprises Inc. 88-068301 Paccar Leasing Corporation
Translease Corp.
Rush Enterprises Inc. 88-076273 Paccar Financial Corp.
Houston Peterbilt Inc.
Rush Enterprises Inc. 88-095950 Paccar Financial Corporation
San Antonio Truck Sales
and Service Inc.
San Antonio Peterbilt Inc.
Rush Enterprises Inc. 88-095951 Paccar Financial Corporation
Houston Peterbilt Inc.
Rush Enterprises Inc. 88-287860 Paccar Financial Corp.
San Antonio Truck Sales and
Service Inc.
San Antonio Peterbilt Inc.
Rush Enterprises Inc. 89-003429 Paccar Financial Corp.
Houston Peterbilt Inc.
--------------------------------------------------------------------------------------------
3
62
--------------------------------------------------------------------------------------------
Rush Enterprises Inc. 89-092679 Paccar Financial Corp.
Houston Peterbilt Inc.
Rush Enterprises Inc. 89-200359 Paccar Leasing Corporation
Translease Corp.
Rush Enterprises Inc. 89-222922 Paccar Leasing Corporation
Translease, Corp.
Rush Enterprises Inc. 90-232411 Paccar Inc. and Its Divisions
Lufkin Peterbilt Inc.
Rush Enterprises Inc. 92-129020 Associates Commercial Corp.
Trans Lease Corp.
Rush Enterprises Inc. 92-199818 Associates Commercial Corporation
Translease Corp.
Rush Enterprises Inc. 92-199819 Associates Commercial
Trans Lease Corp. Corporation
Rush Enterprises Inc. 92-208891 Southern Pacific Thrift &
San Antonio Truck Sales & Loan Association Leasing
Service Division
Rush Enterprises Inc. 92-235780 Paccar Inc.
Laredo Peterbilt Inc.
Rush Enterprises Inc. 93-017410 Associates Commercial
Corporation
Rush Enterprises Inc. 93-033961 Associates Commercial
Trans Lease Corp. Corporation
Rush Enterprises Inc. 93-066280 Paccar Machinery
Translease Corp. Corporation
Rush Enterprises Inc. 93-071664 Paccar Machinery
Translease Corp. Corporation
Rush Enterprises Inc. 93-086174 Associates Commercial Corp.
Translease Corporation
Rush Enterprises Inc. 93-086175 Associates Commercial Corp.
Translease Corporation
Rush Enterprises Inc. 93-086176 Associates Commercial Corp.
Translease Corporation
Rush Enterprises Inc. 93-130316 Xxxx & Xxxxxx Acceptance Corp.
--------------------------------------------------------------------------------------------
4
63
--------------------------------------------------------------------------------------------
Hush Enterprises Inc. 93-133881 The Frost National Bank of
San Xxxxxxx
Xxxx Enterprises 93-142774 Associates Commercial
Corporation
Rush Enterprises Inc. 93-145372 Interstate Billing Service
Hou Tex Industrial & Truck
Supply
Rush Enterprises Inc. 93-145373 Interstate Billing Service Inc.
Laredo Peterbilt Inc.
Rush Enterprises Inc. 93-145374 Interstate Ming Service Inc.
Rush Pontiac GMC Truck Center
San Antonio Peterbilt Inc.
Rush Enterprises Inc. 93-145375 Interstate Billing Service Inc.
Lufkin Peterbilt Inc.
Rush Enterprises Inc. 93-145376 Interstate Billing Service Inc.
Translease Corp.
Rush Enterprises Inc. 93-145377 Interstate Billing Service Inc.
Houston Peterbilt Inc.
Rush Enterprises Inc. 93-198744 Paccar Inc. and Its Divisions
Houston Peterbilt Inc.
Rush Enterprises Inc. 93-212357 Paccar Inc. and Its Divisions
Houston Peterbilt, Inc.
Rush Enterprises Inc. 94-012120 Associates Commercial
Houston Peterbilt, Inc. Corporation
Rush Enterprises Inc. 94-066816 Concord Commercial
Corporation
Rush Enterprises Inc. 94-154856 Associates Commercial
Corporation
Rush Enterprises Inc. 94-209560 Associates Commercial
Corporation
Rush Enterprises Inc. 94-246554 Paccar Financial Corp.
Laredo Peterbilt Inc.
Rush Enterprises Inc. 95-004085 Associates Leasing Inc.
Translease Corporation
Rush Enterprises Inc. 95-032812 Paccar Financial Corp.
Houston Peterbilt Inc.
--------------------------------------------------------------------------------------------
5
64
--------------------------------------------------------------------------------------------
Rush Enterprises Inc. 95-112036 Associates Commercial
Trans Lease Corp. Corporation
Rush Enterprises Inc. 95-126184 Associates Commercial
Trans Lease Corp. Corporation
Rush Enterprises Inc. 95-126686 Paccar Lease Corporation
Translease Corp.
Rush Enterprises Inc. 95-137228 Associates Commercial Corporation
Trans Lease Corp. Corporation
Rush Enterprises Inc. 95-145368 Paccar Leasing Corporation
Translease Corp.
Rush Enterprises Inc. 95-145369 Paccar Leasing Corporation
Translease Corp.
Rush Enterprises Inc. 95-145370 Paccar Leasing Corporation
Translease Corp.
Rush Enterprises Inc. 95-145372 Paccar Leasing Corporation
Translease Corp.
Rush Enterprises Inc. 95-145375 Paccar Leasing Corporation
Translease Corp.
Rush Enterprises Inc. 95-145377 Paccar Leasing Corporation
Translease Corp.
Rush Enterprises Inc. 95-164075 Paccar Leasing Corporation
Translease Corp.
Rush Enterprises Inc. 95-168405 Associates Leasing Inc.
Translease Corp.
Rush Enterprises Inc. 95-173744 Paccar Leasing Corporation
Translease Corp.
Rush Enterprises Inc. 95-233113 Interstate Billing Service Inc.
Translease
Rush Enterprises Inc. 95-233114 Interstate Billing Service Inc.
Tulsa Trucks Inc.
Rush Enterprises Inc. 95-233115 Interstate Billing Service Inc.
Oklahoma Trucks Inc.
Rush Enterprises Inc. 95-235381 General Electric Capital
Corporation
Rush Enterprises Inc. 95-241763 Paccar Leasing Corporation
Translease Corp.
--------------------------------------------------------------------------------------------
6
65
--------------------------------------------------------------------------------------------
Rush Enterprises Inc. 81-079376 Paccar Inc.
San Antonio Truck Sales &
Service Inc.
San Antonio Peterbilt-GMC
Truck Inc.
Rush Enterprises Inc. 96-012838 Concord Commercial
South Coast Peterbilt
Rush Enterprises Inc. 96-013403 Concord Commercial
Rush Enterprises Inc. 96-065340 Associates Leasing Inc.
Translease Corp.
Rush Enterprises Inc. 6-078156 Entergy (sp.?) Systems and
Service Inc.
Rush Enterprises Inc. 6-110415 Concord Commercial
Translease Corp. 5-140834 Paccar Leasing Corporation
Rush Enterprises Inc.
Translease Corp. 5-145367 Paccar Leasing Corporation
Rush Enterprises Inc.
Translease Corp. 5-145371 Paccar Leasing Corporation
Rush Enterprises Inc.
Translease Corp. 5-145373 Paccar Leasing Corporation
Rush Enterprises Inc.
Translease Corp. 5-145374 Paccar Leasing Corporation
Rush Enterprises Inc.
Translease Corp. 5-145376 Paccar Leasing Corporation
Rush Enterprises Inc.
Translease Corp. 5-164074 Paccar Leasing Corporation
Rush Enterprises Inc.
Translease Corp. 5-173745 Paccar Leasing Corporation
Rush Enterprises Inc.
Translease Corp. 5-173746 Paccar Leasing Corporation
Rush Enterprises Inc.
Translease Corp. 5-174172 Paccar Leasing Corporation
Rush Enterprises Inc.
Translease Corp. 6-019586 Paccar Leasing Corporation
Rush Enterprises Inc.
--------------------------------------------------------------------------------------------
7
66
--------------------------------------------------------------------------------------------
Translease Corp. 96-042349 Paccar Leasing Corporation
Rush Enterprises Inc.
Worldwide Tires 82-033549 Dunlop Tire Corporation
Truck Tires Inc.
Rush Enterprises Inc.
Rush Enterprises Inc. 96-169452 Associates Leasing, Inc.
Translease Corp.
--------------------------------------------------------------------------------------------
CALIFORNIA
--------------------------------------------------------------------------------------------
Debtor Instrument # Secured Party
--------------------------------------------------------------------------------------------
Rush Enterprises Inc. 94-019355 Paccar Inc.
Rush Enterprises Inc. 94-019358 Paccar Inc.
Rush Enterprises Inc. 94-019361 Paccar Inc.
Rush Enterprises Inc. 94-019365 Paccar Inc.
Rush Enterprises Inc. 94-056247 Paccar Financial Corp.
Rush Enterprises Inc. 94-077448 G E Capital Corp.
Rush Enterprises Inc. dba 95-17860450 Paccar Leasing Corporation
Translease Corp.
Rush Enterprises Inc. dba 95-20660903 Paccar Leasing Corporation
Translease Corp.
Rush Enterprises Inc. dba 95-20660917 Paccar Leasing Corporation
Translease Corp.
Rush Enterprises Inc. dba 95-20660920 Paccar Leasing Corporation
Translease Corp.
Rush Enterprises Inc. dba 95-20660923 Paccar Leasing Corporation
Translease Corp.
Rush Enterprises Inc. dba 95-20660934 Paccar Leasing Corporation
Translease Corp.
Rush Enterprises Inc. dba 95-20660944 Paccar Leasing Corporation
Translease Corp.
--------------------------------------------------------------------------------------------
8
67
--------------------------------------------------------------------------------------------
Rush Enterprises Inc. dba 95-20660952 Paccar Leasing Corporation
Translease Corp.
Rush Enterprises Inc. dba 95-20660956 Paccar Leasing Corporation
Translease Corp.
Rush Enterprises Inc. dba 95-20660959 Paccar Leasing Corporation
Translease Corp.
Rush Enterprises Inc. dba 95-20660966 Paccar Leasing Corporation
Translease Corp.
Rush Enterprises Inc. dba 95-20660970 Paccar Leasing Corporation
Translease Corp.
Rush Enterprises Inc. dba 95-20660981 Paccar Leasing Corporation
Translease Corp.
Rush Enterprises Inc. dba 94-124271 Paccar Leasing Corp.
Translease Corp.
Rush Enterprises Inc. dba 94-124272 Paccar Leasing Corp.
Translease Corp.
Rush Enterprises Inc. dba 95-33260613 Paccar Leasing Corporation
Translease Corp.
Rush Enterprises Inc. dba 96-00860909 Paccar Leasing Corporation
Translease, Corp.
Rush Enterprises Inc. dba 96-02960277 Paccar Leasing Corporation
Translease, Corp.
Rush Enterprises 96-07960073 Paccar Financial Corp.
Translease
Rush Enterprises Inc. 94-056249 Paccar Financial Corp.
Rush Enterprises Inc.
dba South Coast Peterbilt
Rush Enterprises Inc. dba 96-09460122 Paccar Leasing Corporation
Translease Corp.
Rush Enterprises Inc. dba 96-09460146 Paccar Leasing Corporation
Translease Corp.
Rush Enterprises Inc. 94-046626 Interstate Billing Service Inc.
South Coast Peterbilt
Xxx XxXxxxxx Inc.
--------------------------------------------------------------------------------------------
9
68
--------------------------------------------------------------------------------------------
Rush Enterprises Inc. dba South 94-056253 Paccar Financial Corp.
Coast Peterbilt
South Coast Peterbilt
Rush Enterprises Inc. 94-114482 Interstate Billing Service Inc.
Translease
South Coast Peterbilt
Xxx XxXxxxxx Inc.
Rush Enterprises Inc. dba 95-17860441 Paccar Leasing Corporation
Translease, Corp.
Rush Enterprises Inc. dba 95-33260618 Paccar Leasing Corporation
Translease Corp.
Rush Enterprises Inc. dba 96-02960285 Paccar Leasing Corporation
Translease Corp.
Rush Enterprises Inc. dba 96-02960291 Paccar Leasing Corporation
Translease Corp.
Rush Enterprises Inc. dba 96-09460138 Paccar Leasing Corporation
Translease Corp.
Rush Enterprises Inc. dba 96-15160996 Paccar Leasing Corporation
Translease Corp.
Rush Truck Leasing Inc. 96-32560446 Paccar Leasing Corporation
--------------------------------------------------------------------------------------------
OKLAHOMA
--------------------------------------------------------------------------------------------
Debtor Instrument # Secured Party
--------------------------------------------------------------------------------------------
Rush Enterprises Inc. 043520 Paccar Leasing Corporation
Translease Corp.
Rush Enterprises Inc. 065798 Paccar Inc.
Tulsa Trucks
Rush Enterprises Inc. 065799 Paccar Inc.
Oklahoma Trucks
Rush Enterprises Inc. 063706 Interstate Billing Service Inc.
Oklahoma Trucks Inc.
Rush Enterprises Inc. 063707 Interstate Billing Service Inc.
Tulsa Trucks Inc.
Rush Enterprises Inc. 063705 Interstate Billing Service Inc.
Translease
--------------------------------------------------------------------------------------------
10
69
--------------------------------------------------------------------------------------------
Rush Enterprises Inc. 067723 Paccar Leasing Corporation
Translease Corp.
Rush Enterprises Inc. 014862 Volvo GM Heavy Truck
Tulsa Trucks Inc. Corporation
Rush Enterprises Inc. 014863 Volvo GM Heavy Truck
Oklahoma Trucks Inc. Corporation
Rush Enterprises Inc. 020057 Paccar Leasing Corporation
Translease Corp.
Rush Enterprises Inc. 020060 Paccar Leasing Corporation
Translease Corp.
Rush Enterprises Inc. 020061 Paccar Leasing Corporation
Translease Corp.
Rush Enterprises Inc. 020064 Paccar Leasing Corporation
Translease Corp.
Rush Enterprises Inc. 020696 Paccar Leasing Corporation
Translease Corp.
Rush Enterprises Inc. 043519 Paccar Leasing Corporation
Translease Corp.
Rush Enterprises Inc. 062425 Paccar Leasing Corporation
Translease Corp.
Rush Enterprises Inc. 020058 Paccar Leasing Corporation
Translease Corp.
Rush Enterprises Inc. 020059 Paccar Leasing Corporation
Translease Corp.
Rush Enterprises Inc. 020062 Paccar Leasing Corporation
Translease Corp.
Rush Enterprises Inc. 020063 Paccar Leasing Corporation
Translease Corp.
--------------------------------------------------------------------------------------------
LOUISIANA
--------------------------------------------------------------------------------------------
Debtor Instrument# Secured Party
--------------------------------------------------------------------------------------------
Rush Enterprises Inc. 08368221 Paccar Inc.
Ark-La-Tex Peterbilt Inc.
Rush Enterprises Inc. 08-369984 Paccar Leasing Corporation
Translease Corp.
--------------------------------------------------------------------------------------------
11
70
--------------------------------------------------------------------------------------------
Rush Enterprises Inc. 08-370042 Paccar Financial Corp.
Ark-La-Tex Peterbilt Inc.
Rush Enterprises Inc. 08-369002 Interstate Billing Service Inc.
Ark-La-Tex Peterbilt
Rush Enterprises Inc. 08-369983 Paccar Leasing Corporation
Translease Corporation
Rush Enterprises Inc. 09-919648 Interstate Billing Service Inc.
Ark-La-Tex Peterbilt
Rush Enterprises Inc. 08-371259 Paccar Leasing Corporation
Translease, Corp.
Rush Enterprises Inc. 08-369983 Paccar Leasing Corporation
Translease Corp.
Rush Enterprises Inc. 08-369984 Paccar Leasing Corporation
Translease Corp.
--------------------------------------------------------------------------------------------
12
71
SCHEDULE 5.11
RUSH GROUP GUARANTEES
1. Guaranty Agreement between Rush and Associates Commercial Corporation
dated effective December 26, 1996, whereby Rush guarantees repayment of
indebtedness of Los Cuernos, Inc. to Associates Commercial Corporation in
the original principal amount of $1,238,000.
2. It is contemplated that RTC-Oklahoma might assume a certain $2,800,000
promissory note payable by Rush to Xxxx Consolidated, Inc. ("Xxxx") and/or
the obligations of Rush to Xxxx under a Dealership Purchase Agreement
dated November 10, 1995, and that Rush might guarantee the repayment of
such promissory note and/or the satisfaction by RTC-Oklahoma of its
obligations under such Dealership Purchase Agreement. In the alternative,
RTC-Oklahoma might guarantee the repayment of such promissory note and/or
the satisfaction by Rush of its obligations under such Dealership Purchase
Agreement.
3. Rush has guaranteed the obligations of RTC-Colorado under the asset
purchase agreement whereby RTC-Colorado recently acquired its Colorado
assets.
72
SCHEDULE 6.05(C)
Property Subject to Purchase Money Security Interests
to Lenders Other Than GMAC
None
73
SCHEDULE 8.08
Circumstances Under Which Borrower or Any Dealer
Is Not Approved By Any Manufacturer or Distributor to Sell and Service
or By Any Governmental Agency to Purchase, Sell, Lease and Service
None
