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EXHIBIT 99.24
AMENDMENT NO. 2 TO REVOLVING CREDIT AGREEMENT
This Amendment No. 2 to Revolving Credit Agreement (this "Amendment
Agreement") is entered into as of March 23, 2001 by and among GAINSCO, Inc.
("GAINSCO") and GAINSCO Service Corp. ("Service" and, together with GAINSCO, the
"Borrowers"), and Bank One, NA (the "Lender").
WITNESSETH:
WHEREAS, the Borrowers and the Lender entered into that certain
Revolving Credit Agreement dated as of November 13, 1998 (as amended as of
October 4, 1999 and as supplemented by a consent dated April 13, 2000 and a
waiver dated October 30, 2000, the "Credit Agreement");
WHEREAS, contemporaneously herewith, GAINSCO is issuing and selling
shares of its Series B Convertible Redeemable Preferred Stock to Xxxxxx X.
Xxxxxxxxx or his assignee and of its Series C Redeemable Preferred Stock to Xxxx
Xxxxx Strategic Partners, L.P.; and
WHEREAS, the Borrowers and the Lender have agreed to further amend the
Credit Agreement on the terms and conditions herein set forth.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree as
follows:
1. Defined Terms. Capitalized terms used herein and not otherwise defined herein
shall have the meanings attributed to such terms in the Credit Agreement, as
amended hereby.
2. Termination of Revolving Credit Commitment; Acknowledgements of Borrowers.
2.1 Borrowers and Lender hereby agree that, notwithstanding any
provision of the Credit Agreement or the other Loan Documents to the contrary,
the right of Borrowers to make further borrowings under the Credit Agreement
shall be irrevocably terminated immediately upon the effectiveness of this
Amendment Agreement.
2.2 Each Borrower hereby acknowledges, confirms and agrees that, as of
the date hereof, before giving effect to the prepayment described in Section 5
hereof, Borrowers are indebted to the Lender in respect of the Loans in the
aggregate principal amount of $15,500,000. All such Loans, together with
interest accrued and accruing thereon, and fees, costs, expenses and other
charges now or hereafter payable by Borrowers to the Lender, are unconditionally
owing by Borrowers to the Lender, without offset, defense or counterclaim of any
kind, nature or description whatsoever. In addition, each Borrower hereby
acknowledges, confirms and agrees that the Lender has and shall
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continue to have valid, enforceable and perfected first priority liens upon and
security interests in the Collateral heretofore granted to the Lender pursuant
to the Loan Documents or otherwise granted to or held by the Lender.
2.3 Each Borrower hereby represents and warrants that there are no
liabilities, claims, suits, debts, liens, losses, causes of action, demands,
rights, damages or costs, or expenses of any kind, character or nature
whatsoever, known or unknown, fixed or contingent (collectively, the "Claims"),
which GAINSCO or any of its Subsidiaries may have or claim to have against the
Lender or any of its affiliates, agents, employees, officers, directors,
representatives, attorneys, successors, or assigns (collectively, the "Lender
Released Parties"), which might arise out of or be connected with any act of
commission or omission of the Lender Released Parties existing or occurring on
or prior to the date of this Agreement, including without limitation any Claims
arising with respect to the Obligations, the Credit Agreement or any Loan
Documents. Each Borrower hereby releases, acquits, and forever discharges the
Lender Released Parties from any and all Claims that either Borrower or any such
Subsidiary may have or claim to have, relating to or arising out of or in
connection with the Obligations, the Credit Agreement or any Loan Documents or
any other agreement or transaction contemplated thereby or any action taken in
connection therewith from the beginning of time up to and including the date of
the execution and delivery of this Agreement. Each Borrower further agrees
forever to refrain and to cause each of its Subsidiaries to refrain from
commencing, instituting, or prosecuting any lawsuit, action, or other proceeding
against any Lender Released Parties with respect to any and all Claims.
3. Amendments to Credit Agreement.
3.1 Section 1 of the Credit Agreement is hereby amended by (a) deleting
the definition of "Applicable Margin" in its entirety and replacing it with the
following:
"APPLICABLE MARGIN" means an interest margin of 0.25% in respect of Base Rate
Borrowings and 2.50% in respect of Eurodollar Borrowings; provided, that each
Applicable Margin shall increase by adding 0.25% to such Applicable Margin on
the last day of each calendar quarter, beginning on September 30, 2001.
(b) adding the definition of "Net Available Proceeds" as follows:
"NET AVAILABLE PROCEEDS" means (a) with respect to any disposition, the cash or
readily marketable cash equivalents received (including by way of a cash
generating sale or discounting of a note or account receivable) therefrom,
whether at the time of such disposition or subsequent thereto, or (b) with
respect to any issuance of any equity securities of GAINSCO or any Subsidiary
(other than to GAINSCO or another Subsidiary), the cash or readily marketable
cash equivalents received therefrom, whether at the time of such disposition or
subsequent thereto, net, in either case, of all legal, title and recording tax
expenses, commissions and accounting, placement, investment banking, financial
advisory and other fees, which are paid in each case to non-affiliated third
parties, and all costs and expenses incurred and, in the case of a disposition,
net of all payments made by GAINSCO or any of its Subsidiaries on any
Indebtedness which is secured by such assets pursuant to a permitted Lien upon
or with respect to such assets or which must, by the terms of such Lien, in
order to obtain a necessary consent to such disposition, or by applicable law,
be repaid out of the proceeds from such disposition.
(c) amending the definition of "Fixed Charges Coverage Ratio" by (i) deleting
clause (b) (B) in its entirety and replacing it with the following:
(B) the scheduled prepayment of the Loans pursuant to SECTION 2.5(D)(I) for the
four fiscal quarters following the date of determination
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and (ii) adding the following at the end of such definition:
For the purpose of making the determination in clause (b)(B) of the prior
sentence, the scheduled prepayment of the Loans shall be deemed to be equal to
$500,000 for each fiscal quarter through the fiscal quarter ending March 31,
2002 and $750,000 for each fiscal quarter thereafter.
(d) deleting the introductory clause of paragraph (d) of the definition of
"Interest Period" and replacing it with the following:
and ending one (1) month thereafter, provided that:
(e) deleting the definition of "Change in Control" in its entirety and replacing
it with the following:
"CHANGE IN CONTROL" means after the date of this Agreement any person
or group of persons (within the meaning of Sections 13 and 14 of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and
the rules and regulations of the Securities and Exchange Commission
(the "Commission") relating to such sections) shall, without first
obtaining the written consent of Lender, have acquired beneficial
ownership (within the meaning of Rules 13d-3 and 13d-5 promulgated by
the Commission pursuant to the Exchange Act), directly or indirectly,
of 50% or more, on a fully diluted basis, of the outstanding shares of
Common Stock.
(f) amending the definition of "Consolidated Net Worth" to read in its entirety
as follows:
"CONSOLIDATED NET WORTH" means, as of any date, the total shareholder's equity
of GAINSCO and its Subsidiaries determined on a consolidated basis in accordance
with GAAP but (a) excluding net unrealized capital gains and (b) treating all
preferred stock as equity.
(g) deleting the definition of "Indebtedness" in its entirety and replacing it
with the following:
"INDEBTEDNESS" means, for any Person, all Liabilities of such Person, excluding
(a) accounts payable, deferred taxes, deferred liabilities, unpaid claims and
claim adjustment expenses, commissions payable, reinsurance balances payable,
drafts payable and accrued expenses in each case incurred in the ordinary course
of business and the payment of which is not past-due (unless payment is being
contested in good faith by appropriate proceedings diligently conducted and for
which adequate reserves are maintained in accordance with GAAP), (b) unearned
premiums, (c) deferred revenue and (d) funds held under reinsurance agreements;
provided, that Indebtedness shall not include (a) any preferred stock which is
redeemable at the option of the holders thereof or which has been called for
redemption, in each case so long as the holders' right to receive redemption
proceeds is subordinated to the prior payment in full of the Obligations arising
under the Loan Documents, and (b) any accrued but undeclared Dividends in
respect of any preferred stock.
and (h) adding the definitions of "Series B Preferred" and "Series C Preferred"
as follows:
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"SERIES B PREFERRED" means the Series B Convertible Redeemable
Preferred Stock of GAINSCO issued to Xxxxxx X. Xxxxxxxxx or his assignee.
"SERIES C PREFERRED" means the Series C Redeemable Preferred Stock of
GAINSCO issued to Xxxx Xxxxx Strategic Partners, L.P.
3.2 Section 2 of the Credit Agreement is hereby amended by deleting
Section 2.5(d) in its entirety and replacing it with the following:
(d) MANDATORY PREPAYMENTS. (i) Borrowers shall repay the Principal Debt to the
Lender in a principal amount equal to (A) $500,000 on each of April 2, 2001,
July 2, 2001, October 1, 2001, and January 2, 2002 and (B) $750,000 on the first
Business Day of each calendar quarter thereafter, beginning with April 1, 2002.
Each such prepayment shall be made without regard to any prepayment made
pursuant to paragraph (ii) hereof.
(ii) In addition, Borrowers shall also prepay the Principal Debt within two
Business Days following the issuance of any equity securities by GAINSCO or any
Subsidiary (other than to GAINSCO or a Subsidiary) after the date of this
Amendment Agreement or the sale or other disposition by GAINSCO or any
Subsidiary of any of its assets in an amount equal to 50% of the Net Available
Proceeds of any such issuance or disposition, as applicable; provided, that
Borrowers shall be required to make a $2,500,000 prepayment upon the issuance of
the Series B Preferred and the Series C Preferred. Notwithstanding the
foregoing, Borrowers shall not be required to prepay the Principal Debt in
respect of dispositions (i) of Investments by GAINSCO and its Subsidiaries in
the ordinary course of business to the extent that the proceeds thereof are
reinvested in Investments permitted under SECTION 7.5, (ii) of obsolete
equipment in the ordinary course of business to the extent that the proceeds
thereof are used to purchase replacement items within 90 days or (iii) of other
items to the extent that the aggregate Net Available Proceeds therefrom do not
exceed $250,000 in any calendar year.
3.3 Section 7 of the Credit Agreement is hereby amended as follows:
(a) Section 7.1 is hereby amended by deleting clause (b) thereof and replacing
it with the following:
, (b) Indebtedness of Borrowers and the other Companies in existence on March
23, 2001 and described on SCHEDULE 7.1 hereto, (c) advances from GAIC to GAPFC
made in the ordinary course of business and (d) other Indebtedness with an
aggregate principal amount not in excess of $250,000 at any one time outstanding
(b) Section 7.4 is hereby deleted in its entirety and replaced with the
following:
7.4 RESTRICTIONS ON DIVIDENDS. GAINSCO shall not (a) declare or make, or incur
any liability to make, any Dividend or (b) permit any Subsidiary to declare or
make, or incur any liability to make, any Dividend except to GAINSCO or to
another Subsidiary; provided, that GAINSCO may accrue, but not declare or pay,
Dividends in respect of any series of preferred stock now or hereafter issued.
(c) Section 7.5 is hereby deleted in its entirety and replaced with the
following:
7.5 LIMITATION ON INVESTMENTS. (a) Borrowers shall not, nor shall they permit
any Subsidiary which is not an Insurance Subsidiary to, make or suffer to exist
any Investments (including, without limitation, loans and advances to, and other
Investments in, Subsidiaries), or to become or remain a partner in any
partnership or joint venture, except:
(i) Cash Equivalent Investments and such other "cash equivalent" investments as
Lender may from time to time approve in writing so long as such Investments are
held in an account of the Lender or otherwise pledged to
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Lender pursuant to the Collateral Documents in effect on March 23, 2001 or
entered into thereafter in form and substance reasonably acceptable to Lender;
(ii) Investments which were in existence on March 15, 2001 (including
Investments in Subsidiaries);
(iii) Investments in equity securities which are not "restricted securities" (as
defined in Rule 144 under the Securities Act of 1933, as amended) and which are
listed or admitted for trading on a national securities exchange or the NASDAQ;
and
(iv) additional Investments by GAINSCO in GAIC and GSC in an aggregate amount
not to exceed $5,000,000 after March 23, 2001, so long as such Investments are
either (A) contributions to capital not evidenced or represented by additional
securities or (B) evidenced by securities which are pledged to Lender; provided,
that GSC may use the proceeds of any such Investment made therein of up to
$1,000,000 (less any Investment made pursuant to SECTION 7.5(B)(V)) to make an
Investment in GCMIC to the extent required to maintain the minimum statutory
surplus in GCMIC required by applicable law.
(b) Borrowers shall not permit any Insurance Subsidiary to make or suffer to
exist any Investments (including, without limitation, loans and advances to and
other Investments in, Subsidiaries), or commitments therefor, or to become or
remain a partner in any partnership or joint venture, except:
(i) Cash Equivalent Investments and such other "cash equivalent" investments as
Lender may from time to time approve in writing;
(ii) other Investments permitted under the insurance laws of the domiciliary
state of such Insurance Subsidiary;
(iii) Existing Investments in Subsidiaries and other Investments in existence on
March 23, 2001;
(iv) advances to employees and third parties not to exceed $100,000 in the
aggregate at any time outstanding; and
(v) additional Investments in wholly-owned Insurance Subsidiaries in an
aggregate amount not to exceed $1,000,000 after March 23, 2001 (less any
Investment made in such period pursuant to the proviso to SECTION 7.5(A)(IV)).
(d) Section 7.9 is hereby deleted in its entirety and replaced with the
following:
7.9. ACQUISITIONS. Borrowers shall not, and shall not permit any of the other
Companies to, (a) form any Subsidiary or (b) acquire all or substantially all of
(i) the assets of any Person or any division or business unit of any Person or
(ii) the stock of any class of any other Person except in a transaction
permitted under SECTION 7.10.
(e) Section 7.15 is hereby amended by deleting the first sentence thereof in its
entirety and replacing it with the following:
Borrowers shall not permit Consolidated Net Worth, as of the last day of any
fiscal quarter of GAINSCO, to be less than the sum of (a) $110,000,000, plus (b)
an amount equal to the sum of fifty percent (50%) of Consolidated Net Income for
each prior fiscal quarter beginning with the quarter ending March 31, 2001
through the last day of the fiscal quarter ending prior to or on the
determination date, plus (c) an amount equal to one hundred percent (100%) of
the aggregate capital contributions to and gross proceeds of the equity
securities issued by GAINSCO on or after March 23, 2001 (other than the Series B
Preferred or the Series C Preferred).
(f) Section 7.16 is hereby deleted in its entirety and replaced with the
following:
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7.16. FIXED CHARGES COVERAGE RATIO. Borrowers shall not, as of the last day of
any fiscal quarter of GAINSCO, permit the Fixed Charges Coverage Ratio of
GAINSCO to be less than 1.25 to 1.0 at any fiscal quarter end through March 31,
2002 or 1.2 to 1.0 at any fiscal quarter end thereafter.
(g) Section 7.17 is hereby deleted in its entirety and replaced with a reference
to "7.17. INTENTIONALLY OMITTED."
(h) Section 7.19 is hereby deleted in its entirety and replaced with the
following:
7.19. MINIMUM STATUTORY SURPLUS. Borrowers shall not permit the Statutory
Surplus of GAIC, as of the last day of any fiscal quarter of GAIC, to be less
than the sum of (a) $61,000,000, plus (b) an amount equal to the sum of fifty
percent (50%) of the Statutory Earnings of GAIC for each prior fiscal quarter
beginning with the quarter ending March 31, 2001 through the last day of the
fiscal quarter ending prior to or on the determination date, less the amount of
Dividends paid to GAINSCO during such period to the extent such Dividends were
used to pay amounts arising in respect of GAINSCO's outstanding Indebtedness,
plus (b) an amount equal to one hundred percent (100%) of the aggregate capital
contributions to GAIC on or after March 15, 2001. In making such determination,
the amount determined pursuant to clause (b) shall be equal to zero for any
quarter for which there is a net loss.
(i) Section 7.20 is hereby amended by deleting the reference therein to
"$1,000,000" and replacing it with a reference to "$750,000".
(j) Section 7.21 is hereby deleted in its entirety and replaced with the
following:
7.21. MINIMUM STATUTORY EARNINGS. Borrowers shall not permit the Statutory
Earnings of GAIC to be less than (a) $500,000 for its fiscal year ending
December 31, 2001 and (b) $2,500,000 for any fiscal year thereafter.
(k) Section 7.22 is hereby amended by (a) deleting the reference therein to "5%"
and replacing it with a reference to "2%" and (b) deleting the second sentence
thereof in its entirety and replacing it with the following:
In making such determination, (a) amounts recoverable under the Quota Share
Reinsurance Treaty attaching January 1, 1993 among GAIC, MGAIC and GCMIC shall
be excluded and (b) those Lloyds' of London syndicates which are classified as
authorized reinsurers by the NAIC shall be deemed to have a rating of A- by A.M.
Best Company, Inc.
(l) Section 7.23 is hereby deleted in its entirety and replaced with the
following:
7.23. ISSUANCE OF CAPITAL STOCK. Neither GAINSCO nor any of its Subsidiaries may
issue any capital stock or other equity security except on terms and conditions
acceptable to the Lender, such approval thereof not to unreasonably be withheld.
(m) Section 7.24 is hereby added as follows:
7.24. AMENDMENTS TO PREFERRED STOCK TERMS. GAINSCO shall not amend (a)
any provision of its articles of incorporation in respect of any series of its
preferred stock or (b) either (i) that certain Securities Purchase Agreement
dated as of February 26, 2001 and amended as of March 23, 2001 between GAINSCO
and GMSP or (ii) that certain Securities Purchase Agreement dated as of February
26, 2001 and amended as of March 23, 2001 between GAINSCO and Xxxxxx X.
Xxxxxxxxx, in any case without the Lender's prior written consent, which shall
not unreasonably be withheld.
3.4 Exhibit A is hereby deleted in its entirety and replaced with
Exhibit A hereto.
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4. Waivers. The Lender hereby waives any Event of Default arising under the
Credit Agreement to the extent that such Event of Default arises exclusively
from (a) the Borrowers' failure to comply with Section 7.19 of the Credit
Agreement as of December 31, 2000 or Section 7.21 of the Credit Agreement for
the fiscal year ending December 31, 2000 or (b) the failure to comply with
Section 6.4 of the Credit Agreement as a result of the failure to pay certain
Florida taxes as set forth on Appendix 6.6 hereto.
5. Conditions Precedent. This Amendment Agreement shall become effective as of
the date first above written; provided, that the Lender has received:
(a) counterparts of (i) this Amendment Agreement duly executed by each Borrower
and Lender, and (ii) the Reaffirmation of Collateral Documents duly executed by
each Company signatory thereto;
(b) payment of a fully earned and non-refundable amendment fee equal to $130,000
and the fees and expenses referenced in Section 8 hereof;
(c) copies of a secretary's certificate for each Borrower as to resolutions and
incumbency;
(d) (i) evidence that GAINSCO is concurrently issuing its Series B Preferred and
Series C Preferred on terms and conditions reasonably acceptable to the Lender,
yielding gross proceeds to GAINSCO of at least $6,000,000, and (ii) the
prepayment by GAINSCO of the Principal Debt in an amount of at least $2,500,000
from the proceeds of the Series B Preferred and the Series C Preferred by the
close of business on March 23, 2001; and
(e) execution and delivery by each holder of GAINSCO's preferred stock of a
subordination agreement in favor of Lender and in form and substance reasonably
acceptable thereto.
6. Representations and Warranties of the Borrowers.
6.1 Each Borrower represents and warrants that the execution, delivery
and performance by such Borrower of this Amendment Agreement and each of the
documents and instruments entered into by such Borrower in connection with the
issuance of the Series B Preferred and the Series C Preferred (collectively, the
"Transaction Agreements") have been duly authorized by all necessary corporate
action and that each Transaction Agreement is a legal, valid and binding
obligation of such Borrower, enforceable against such Borrower in accordance
with its terms, except as the enforcement thereof may be subject to (a) the
effect of any applicable bankruptcy, insolvency, reorganization, moratorium or
similar law affecting creditors' rights generally and (b) general principles of
equity (regardless of whether such enforcement is sought in a proceeding in
equity or at law).
6.2 Each Borrower has all requisite corporate power and authority to
execute, deliver and perform its obligations under each of the Transaction
Agreements to which it is a party, to own its assets and to carry on its
business as presently conducted.
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6.3. The execution, delivery and performance by each Borrower of each
of the Transaction Agreements to which it is a party and the consummation of the
transactions contemplated thereby (the "Closing Transactions") do not (a)
violate any provision of (i) any law, rule or regulation (including, without
limitation, Regulations T, U and X of the Board of Governors of the Federal
Reserve System), or (ii) any order, writ, judgment, decree, determination or
award which is presently in effect having applicability to such Borrower, (b)
conflict with or result in a breach of, or constitute a default under, the
articles of incorporation or by-laws of such Borrower, (c) conflict with or
result in a breach of, or constitute a default under, any indenture, loan or
credit agreement or other agreement or instrument to which such Borrower is a
party or by which such Borrower or any of its property is bound, (d) result in
or require the creation or imposition of any Lien of any nature (except Liens
permitted under the Credit Agreement) upon or with respect to any of the
properties now owned or hereafter acquired by such Borrower, or (e) require any
consent of such Borrower's shareholders (other than any such consent which has
already been given and remains in full force and effect).
6.4 No authorization, consent, approval, license, qualification or
formal exemption from, or filing, declaration or registration with, any court,
governmental agency or other regulatory authority is required to be obtained by
GAINSCO or any of its Subsidiaries in connection with the execution and delivery
of the Transaction Agreements, the consummation of any of the Closing
Transactions, or the legality, validity, binding effect or enforceability of any
of the Transaction Agreements, except such as have been previously obtained and
remain in full force and effect and filings required to be made following the
consummation of the Closing Transactions.
6.5 There is no action, suit, proceeding, governmental investigation or
arbitration pending or threatened against either Borrower or any material
property thereof before any court or arbitrator or any governmental or
administrative body, agency or official which challenges the validity, or seeks
to enjoin the performance of, any Transaction Agreement or the consummation of
any of the Closing Transactions.
6.6 Each Borrower hereby certifies that each of the representations and
warranties contained in the Credit Agreement is true and correct in all material
respects on and as of the date hereof as if made on the date hereof, except to
the extent (a) that any such representation or warranty is stated to relate
solely to an earlier date, in which case such representation or warranty shall
be true and correct on and as of such earlier date and (b) as set forth on
Appendix 6.6 hereto.
7. Reference to and Effect on the Credit Agreement.
7.1 Upon the effectiveness of this Amendment Agreement, each reference
in the Credit Agreement to "this Agreement," "hereunder," "hereof," "herein" or
words of like import and each reference to the Credit Agreement in each Loan
Document shall mean and be a reference to the Credit Agreement as amended
hereby.
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7.2 Except as specifically amended or waived above, all of the terms,
conditions and covenants of the Credit Agreement and the other Loan Documents
shall remain unaltered and in full force and effect and shall be binding upon
each Borrower in all respects and are hereby ratified and confirmed.
7.3 The execution, delivery and effectiveness of this Amendment
Agreement shall not operate as a waiver of (a) any right, power or remedy of the
Lender under the Credit Agreement or any of the Loan Documents, or (b) except as
specifically waived above, any Event of Default or Potential Default under the
Credit Agreement.
8. Costs and Expenses. Each Borrower agrees, on a joint and several basis, to
pay on demand all costs and expenses of the Lender in connection with the
preparation, execution and delivery of this Amendment Agreement, including the
reasonable fees and out-of-pocket expenses of counsel for the Lender with
respect thereto.
9. CHOICE OF LAW. THIS AMENDMENT AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH
THE LAWS (AND NOT THE LAW OF CONFLICTS) OF THE STATE OF TEXAS, BUT GIVING EFFECT
TO FEDERAL LAWS APPLICABLE TO NATIONAL BANKS.
10. Execution in Counterparts. This Amendment Agreement may be executed in any
number of counterparts and by different parties hereto in separate counterparts,
each of which when so executed shall be deemed to be an original and all of
which taken together shall constitute one and the same agreement.
11. Headings. Section headings in this Amendment Agreement are included herein
for convenience of reference only and shall not constitute a part of this
Amendment Agreement for any other purposes.
12. ENTIRE AGREEMENT. THE CREDIT AGREEMENT, AS AMENDED HEREBY, AND THE OTHER
LOAN DOCUMENTS REPRESENT 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.
[signature pages to follow]
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IN WITNESS WHEREOF, the Borrowers and the Lender have executed this
Amendment Agreement as of the date first above written.
GAINSCO, INC.
By: /s/ Xxxxx X. Xxxxxxxx
-------------------------------------
Title: President and CEO
-----------------------------------
GAINSCO SERVICE CORP.
By: /s/ Xxxxx X. Xxxxxxxx
-------------------------------------
Title: President and CEO
-----------------------------------
BANK ONE, NA
By: /s/ Xxxxxxx X. Xxxxxxx
-------------------------------------
Title: Senior Vice President
----------------------------------
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REAFFIRMATION OF COLLATERAL DOCUMENTS
Notwithstanding anything to the contrary contained in the Collateral
Documents, each of the undersigned hereby: (a) consents to and approves all of
the terms of that certain Amendment No. 2 to Credit Agreement dated as of the
date hereof among GAINSCO, Inc., GAINSCO Service Corp. and Bank One, NA (the
"Amendment"), in connection with which this Reaffirmation of Collateral
Documents has been executed; (b) ratifies and confirms all of its indebtedness,
liabilities and obligations under the Collateral Documents to which it is a
party; (c) reaffirms that, after giving effect to the Amendment, all of its
representations and warranties made in the Collateral Documents to which it is a
party remain true and correct as of the date of the Amendment (except to the
extent that such representations or warranties are expressly made only as of
another specific date, in which case they shall be true and correct as of such
date); (d) reaffirms all of its covenants, agreements, indebtedness, liabilities
and obligations under the Collateral Documents to which it is a party, which
include, without limitation, the grant of Liens in all of such party's interests
in the Collateral owned by it as security for the payment and performance of the
Obligations; (e) agrees that the Collateral Documents to which it is a party
shall and do remain in full force and effect; (f) agrees that the Collateral
Documents to which it is a party shall and do continue to constitute the legal,
valid and binding obligations of such party, enforceable against it in
accordance with the terms of the Collateral Documents to which it is a party and
that such obligations shall not be discharged or affected by any modification,
extension, renewal or amendment of the terms of the Credit Agreement or the
other Loan Documents; (g) agrees and acknowledges that there are no defenses,
counterclaims or set-offs to the Collateral Documents to which it is a party or
its covenants, agreements, indebtedness, liabilities and obligations under the
Collateral Documents, and agrees that any (if any) such defenses, counterclaims
or set-offs are hereby expressly waived; and (h) agrees and acknowledges that
the provisions set forth in Sections 2.2 and 2.3 of the Amendment are hereby
incorporated herein by reference and are and shall be applicable to each of the
undersigned.
Dated as of this 23rd day of March 2001.
GAINSCO, INC.
By: /s/ Xxxxx X. Xxxxxxxx
-------------------------------
Title: President & CEO
----------------------------
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GAINSCO SERVICE CORP.
By: /s/ Xxxxx X. Xxxxxxxx
-------------------------------
Title: President & CEO
----------------------------
AGENTS PROCESSING SYSTEMS, INC.
By: /s/ Xxxxx X. Xxxxxxxx
--------------------------------
Title: President
----------------------------
RISK RETENTION ADMINISTRATORS,
INC.
By: /s/ Xxxxx X. Xxxxxxxx
--------------------------------
Title: President
----------------------------
GENERAL AGENTS PREMIUM
FINANCE COMPANY
By: /s/ Xxxxx X. Xxxxxxxx
--------------------------------
Title: President
----------------------------
MGA PREMIUM FINANCE COMPANY
By: /s/ Xxxxx X. Xxxxxxxx
-------------------------------
Title: President
----------------------------
- 12 -
13
NATIONAL SPECIALTY LINES, INC.
By: /s/ Xxxxx X. Xxxxxxxx
--------------------------------
Title: President
----------------------------
DLT INSURANCE ADJUSTERS, INC.
By: /s/ Xxxxx X. Xxxxxxxx
--------------------------------
Title: President
----------------------------
LALANDE FINANCIAL GROUP, INC.
By: /s/ Xxxxx X. Xxxxxxxx
--------------------------------
Title: President
----------------------------
- 13 -
