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EXHIBIT 10.62
AGREEMENT
This AGREEMENT ("Agreement"), dated as of January 31, 1997, is made and
entered into among CARGILL FINANCIAL SERVICES CORPORATION, a Delaware
corporation ("CFSC"), ACC CONSUMER FINANCE CORPORATION, a Delaware corporation
(as successor to American Credit Corporation) ("ACC"), and OFL-A RECEIVABLES
CORP., a Delaware corporation and a direct wholly-owned subsidiary of ACC
("Receivables").
WHEREAS, CFSC, ACC and Receivables are parties to a Definitive
Commitment dated July 15, 1993, as amended by the First Amendment to Definitive
Commitment dated as of June 24, 1994, the Second Amendment to Definitive
Commitment dated as of May 5, 1995, and the Third Amendment to Definitive
Commitment dated as of September 29, 1995 (collectively, the "Definitive
Commitment"), pursuant to which, and subject to the other credit facility
documents, including the Master Contract Repurchase Agreement, Master Servicing
Agreement and Master Custodial Agreement, CFSC has extended a repurchase
financing facility to Receivables ("Repurchase Facility").
WHEREAS, subject to earlier termination in certain situations, the
commitment period in the Repurchase Facility expires on July 15, 1998.
WHEREAS, Receivables and ACC desire to acquire the Option (as defined
in Section 2) to terminate the Repurchase Facility on or before May 31, 1997,
upon the terms of this Agreement.
NOW THEREFORE, in consideration of the mutual agreements herein
contained, the parties agree as follows:
1. DEFINITIONS. All terms with initial capitalized letters that are not
otherwise defined herein shall have the meanings ascribed to such terms in the
Definitive Commitment and in the Master Contract Repurchase Agreement.
2. OPTION TO TERMINATE THE REPURCHASE FACILITY. Receivables and ACC shall have
the option ("Option") to terminate the Repurchase Facility at any time on or
before May 31, 1997. Receivables and ACC may exercise this Option by notifying
CFSC of its exercise of the option as of a stated termination date at least
fourteen (14) calendar days prior to such stated termination date. On the stated
termination date which shall constitute a Repurchase Date established pursuant
to subsection (i) of the definition of Repurchase Date set forth in the Master
Contract Repurchase Agreement, Receivables shall repurchase from CFSC the
balance of Contracts sold to CFSC pursuant to the Master Contract Repurchase
Agreement at the Repurchase Price and in accordance with
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the terms and conditions of the Master Contract Repurchase Agreement. ACC and
CFSC shall use reasonable efforts to coordinate the termination of the
Repurchase Facility with the initial funding under the credit facility obtained
by ACC or an affiliate to replace the Repurchase Facility so that the proceeds
of the replacement credit facility may be used by Receivables to pay CFSC all
amounts due under the Repurchase Facility. In connection with the payment in
full of and the termination of the Repurchase Facility, as contemplated herein
only the Repurchase Price shall not include any Base Repurchase Agreement Fee or
Extension Repurchase Fee. The Option shall lapse if (a) not exercised on or
before May 31, 1997 or (b) all amounts due CFSC under the Repurchase Facility
are not paid in full on or before May 31, 1997. If the Option lapses, then the
Definitive Commitment and other credit facility documents shall continue in full
force and effect, without any amendment except as otherwise set forth in this
Agreement.
3. STOCK ISSUANCE. In consideration of the Option and the other covenants of
CFSC, ACC shall newly issue and deliver to CFSC as of the date of this
Agreement, 174,500 unregistered, fully paid, nonassessable shares of its common
stock, $.001 par value ("Newly Issued Shares"), free and clear of any liens or
encumbrances of any kind. The stock certificate representing the Newly Issued
Share shall be stamped with the same restrictive legend as the common stock of
ACC already owned by CFSC. In addition, ACC covenants that it shall amend the
Investors Rights Agreement dated as of July 15, 1993, as amended ("Investors
Rights Agreement") to include the Newly Issued Shares as "Registrable
Securities" thereunder and CFSC shall be the "Holder" of such Registrable
Securities.
4. REPRESENTATIONS AND WARRANTIES. CFSC hereby represents and warrants to ACC as
follows: (i) that it is acquiring the Common Stock for investment and not with a
present view to distribution; (ii) that CFSC is an accredited investor as
defined in Regulation D promulgated under the Securities Act of 1933, as
amended; (iii) that CFSC did not receive any solicitations or advertising in
connection with the issuance of the Common Stock; and (iv) that CFSC is relying
solely upon its own due diligence in connection with the acquisition of the
Common Stock and its valuation of the Common Stock and is not relying upon any
representations or warranties of ACC or any third party. CFSC acknowledges that
ACC has not publicly disclosed the transaction contemplated by this Agreement
and CFSC agrees that it will not trade on any material nonpublic information
relating to ACC that it acquires as a result of the negotiation of this
Agreement.
5. REPURCHASE PRICE CREDIT. In the event that the Option is not exercised, then
the Common Stock (valued as set forth herein) shall be credited against any Base
Repurchase Agreement Fee and Extension Repurchase Fee payable to CFSC under the
Definitive Commitment or Master Repurchase Agreement after May 31, 1997. For
purposes of the credit only, the Common Stock will be valued at the closing bid
of ACC Common Stock
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on the Nasdaq National Stock Market on January 31, 1996, as reported in the
WALL STREET JOURNAL, which was $10.88 per share.
6. OTHER CONSEQUENCES OF TERMINATION OF REPURCHASE FACILITY. If the Option is
exercised and the Repurchase Facility is terminated, then (i) CFSC shall no
longer serve as a sponsor on behalf of ACC, Receivables or ACC Receivables
Corp., a Delaware corporation, in connection with any future asset
securitization transactions (although CFSC will continue to serve as sponsor for
any transactions done prior to the termination) and (ii) CFSC shall continue to
serve as a counterparty to ACC or Receivables in any hedging transactions that
ACC elects to engage on substantially the same terms as its current arrangement
so long as CFSC's commitment under the Subordinated Certificate and Net Interest
Margin Certificate Financing Facility Agreement dated as of September 1, 1995,
as amended by the First Amendment to the Subordinated Certificate and Net
Interest Margin Certificate Financing Facility Agreement dated as of March 31,
1996, and amended by the Second Amendment to Net Interest Margin Certificate
Financing Facility Agreement dated as of August 30, 1996 (collectively, the "NIM
Facility Agreement"), remains open and CFSC and Receivables shall enter into an
amendment to the NIM Facility Agreement or enter into an agreement reflecting
the current hedging arrangement; PROVIDED, that repayment provisions and
perfected security interests in collateral, in each case acceptable to CFSC, are
incorporated into such arrangement.
7. NIM FACILITY AMENDMENT. Concurrent with the execution of this Agreement, the
parties shall enter into a Third Amendment to the NIM Facility Agreement in the
form of Exhibit "A" hereto ("Amendment"). Pursuant to the Amendment, CFSC's
maximum commitment under the NIM Facility Agreement shall be reduced to
$10,000,000, and the annual commitment fee shall be reduced to $100,000, payable
quarterly. This Amendment shall be effective immediately and shall not be
affected by whether the Option is exercised or lapses.
8. MISCELLANEOUS. This Agreement is intended to be a binding agreement upon the
parties hereto and constitutes the entire agreement among the parties relating
to the subject matter hereof. Except as expressly set forth in this Agreement,
this Agreement does not alter, now or in the future upon the exercise or lapse
of the Option, any rights or obligations between or among the parties hereto or
affiliates of the parties hereto under any existing agreements (including
without limitation, the master equipment finance lease with Cargill Leasing
Corporation) which shall remain in full force and effect. This Agreement shall
be governed and construed in accordance with the internal laws of Minnesota.
This Agreement may be executed in any number of counterparts, each of which when
so delivered shall be deemed an original, but all such counterparts shall
constitute but one and the same instrument.
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IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be executed and delivered by its duly authorized officer on the
date first set forth above.
"CFSC"
CARGILL FINANCIAL SERVICES CORPORATION,
a Delaware corporation
By: /s/ Xxxxxxx A. Z. Xxxxxxxxx
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Xxxxxxx A.Z. Xxxxxxxxx
Vice President
"ACC"
ACC CONSUMER FINANCE CORPORATION,
a Delaware corporation,
By: /s/ Xxxxx X. Xxxxxxx
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Xxxxx X. Xxxxxxx
Director and CEO
"Receivables"
OFL-A RECEIVABLES CORP.,
a Delaware corporation,
By: /s/ Xxxxx X. Xxxxxxx
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Xxxxx X. Xxxxxxx
Director
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Acknowledgment:
Norwest Bank Minnesota, National Association, acknowledges that it has
received a copy of the Agreement dated as of January 31, 1997, among Cargill
Financial Services Corporation, a Delaware corporation, ACC Consumer Finance
Corporation, a Delaware corporation, and OFL-A Receivables Corp., a Delaware
corporation, and is aware of the option to terminate the Repurchase Facility.
NORWEST BANK MINNESOTA,
National Association
By: /s/ Xxxxx X. Wondersee
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Xxxxx X. Wondersee
Corporate Trust Officer
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