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RESTATED
REVOLVING CREDIT AGREEMENT
This Restated Revolving Credit Agreement (this "Loan Agreement") is
entered into by and among AMERICREDIT CORP., a Texas corporation ("Company"),
AMERICREDIT FINANCIAL SERVICES, INC., a Delaware corporation, AMERICREDIT
OPERATING CO., INC., a Delaware corporation, AMERICREDIT PREMIUM FINANCE,
INC., a Delaware corporation, and ACF INVESTMENT CORP., a Delaware
corporation, and WELLS FARGO BANK (TEXAS), NATIONAL ASSOCIATION, BANK ONE,
TEXAS, N.A., LASALLE NATIONAL BANK, THE SUMITOMO BANK, LIMITED, HARRIS TRUST
AND SAVINGS BANK, COMERICA BANK-TEXAS, TEXAS COMMERCE BANK NATIONAL
ASSOCIATION, BANKAMERICA BUSINESS CREDIT, INC., THE BANK OF NOVA SCOTIA, CIBC
INC., CREDIT LYONNAIS NEW YORK BRANCH, BANKBOSTON, N.A., and THE LONG-TERM
CREDIT BANK OF JAPAN, LIMITED, WELLS FARGO BANK (TEXAS), NATIONAL
ASSOCIATION, as agent for the Banks ("Agent") and BANK ONE, TEXAS, N.A.
("Co-Agent").
W I T N E S S E T H:
WHEREAS, AmeriCredit Corp., AmeriCredit Financial Services, Inc., Agent
and certain of Banks entered into that one certain Revolving Credit Agreement
dated September 21, 1994; and
WHEREAS, AmeriCredit Corp., AmeriCredit Financial Services, Inc.,
AmeriCredit Operating Co., Inc., Guarantors, Agent and certain of the Banks
entered into that one certain Restated Revolving Credit Agreement dated June
2, 1995; and
WHEREAS, AmeriCredit Corp., AmeriCredit Financial Services, Inc.,
AmeriCredit Operating Co., Inc., Guarantors, Agent and certain of the Banks
entered into that one certain Second Restated Revolving Credit Agreement
dated October 7, 1996 (the "Prior Loan Agreement"); and
WHEREAS, AmeriCredit Corp., AmeriCredit Financial Services, Inc.,
AmeriCredit Operating Co., Inc. (individually, a "Borrower" and collectively,
the "Borrowers"), Guarantors, Agent and Banks have agreed to amend and
restate the Prior Loan Agreement in its entirety.
NOW, THEREFORE, in consideration of the mutual promises herein contained
and for other valuable consideration, the parties hereto do hereby agree to
amend and restate the Prior Loan Agreement in its entirety as follows:
ARTICLE I
DEFINITION OF TERMS
For the purposes of this Loan Agreement, unless the context requires
otherwise, the following terms shall have the respective meanings assigned to
them in this Article I below:
"ADDITIONAL WAREHOUSE FACILITY" shall mean any additional nonrecourse
credit facility or arrangement, other than a Securitization, pursuant to
which Borrowers or their Affiliates sell or refinance Finance Contracts
securing Obligations under the Loan Documents.
<PAGE>
"ADJUSTED INDEBTEDNESS" shall mean the Indebtedness of the Company and
its Subsidiaries as reported on the balance sheet of Company, less
obligations related to Securitizations and obligations related to Additional
Warehouse Facilities, that are in each case nonrecourse to the Borrowers and
that are reported on the balance sheet of Company.
"ADJUSTED INTERBANK RATE" shall, with respect to each Interest Period,
mean on any day thereof the quotient of (a) the Interbank Offered Rate with
respect to such Interest Period, DIVIDED BY (b) the remainder of 1.00 MINUS
the Eurodollar Reserve Requirement in effect on such day.
"ADVANCE" shall have the meaning assigned to it in Section 2.01 hereof.
"AFFILIATE" of any designated Person means any Person that has a
relationship with the designated Person whereby either of such Persons
directly or indirectly controls or is controlled by or is under common
control with the other, or holds or beneficially owns five percent (5%) or
more of any class of voting securities of the other. For this purpose,
"control" means the power, direct or indirect, of one Person to direct or
cause direction of the management and policies of another, whether by
contract, through voting securities or otherwise. Notwithstanding the
foregoing, no Person shall be deemed to be an Affiliate of another solely by
reason of such Person's being a participant in a joint operating group or
joint undivided ownership group. For purposes of this Loan Agreement, the
term "Affiliate" shall include special purpose subsidiary corporations and
trusts formed or sponsored by the Company or its subsidiaries for the purpose
of facilitating one or more Securitizations and/or an Additional Warehouse
Facility.
"APPLICABLE MARGIN" shall mean the percentage set forth below opposite
the rating by Standard & Poors, Moody's Investor Service or Fitch Investor
Service in effect with respect to the Indebtedness of Borrowers to Banks on
the date of the particular Eurodollar Borrowing or at any time during an
Interest Period:
<TABLE>
<CAPTION>
Debt Rating Percentage
----------- ----------
<S> <C>
Unrated or less than
BBB-/Baa3 1.55%
BBB-/Baa3 1.40%
BBB/Baa2 or higher 1.25%
</TABLE>
In the event that the Ratings are not the same at a particular time, the
Applicable Margin shall be based upon the highest rating assigned to such
Indebtedness by Standard & Poors, Moody's Investor Service or Fitch Investor
Service.
"ARBITRATION PROGRAM" shall have the meaning assigned to it in Article
XI hereof.
"BANKS" shall mean Wells Fargo Bank (Texas), National Association and
all other banks which are parties to this Loan Agreement or any amendment
thereto. BANK shall mean any one of Banks.
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<PAGE>
"BORROWERS" shall mean AmeriCredit Corp., a Texas corporation,
AmeriCredit Financial Services, Inc., a Delaware corporation, and AmeriCredit
Operating Co., Inc., a Delaware corporation.
"BUSINESS DAY" shall mean a day upon which business is transacted by
national banks in Fort Worth, Texas, New York, New York and San Francisco,
California.
"CAPITAL LEASE" shall mean, as of any date, any lease of property, real
or personal, which would be capitalized on a balance sheet of the lessee
prepared as of such date, in accordance with GAAP.
"CAPITAL LEASE OBLIGATION" shall mean any rental obligation which, under
GAAP, is or will be required to be capitalized on the books of the Company
or any Subsidiary, taken at the amount thereof accounted for as indebtedness
(net of interest expense) in accordance with GAAP.
"COMMITMENT" shall have the meaning assigned to it in Section 2.01
hereof.
"CONSEQUENTIAL LOSS" shall mean, with respect to the payment by any of
Borrowers or any of Guarantors of all or any portion of the then outstanding
principal amount of any Bank's Eurodollar Advance on a day other than the
last day of the Interest Period related thereto, any loss, cost or expense
incurred by such Bank as a result of the timing of such payment or in
redepositing such principal amount, including the greater of (a) the sum of
(i) the interest which, but for such payment, such Bank would have earned in
respect of such principal amount so paid, for the remainder of the Interest
Period applicable to such sum, reduced, if such Bank is able to redeposit
such principal amount so paid for the balance of such Interest Period, by the
interest earned by such Bank as a result of so redepositing such principal
amount PLUS (ii) any expense or penalty incurred by such Bank on redepositing
such principal amount or (b) one hundred dollars ($100) for each prepayment
of a Eurodollar Advance other than on the last day of the Interest Period
applicable thereto.
"CONSOLIDATED" shall mean the consolidation of any Person, in accordance
with GAAP, with its properly consolidated subsidiaries. References herein to
a Person's Consolidated financial statements, financial position, financial
condition, liabilities, etc., refer to the consolidated financial statements,
financial position, financial condition, liabilities, etc. of such Person and
its properly consolidated subsidiaries.
"CONTROLLED GROUP" shall mean (i) the controlled group of corporations
as defined in section 1563 of the United States Internal Revenue Code of
1986, as amended, or (ii) the group of trades or business under common
control as defined in section 414(c) of the United States Internal Revenue
Code of 1986, as amended, of which Company is part or may become a part.
"CREDIT ENHANCEMENT ASSETS" shall mean any asset, reflected as such on
the Consolidated balance sheet of the Company and its Subsidiaries, created
or arising as a result of any arrangement wherein the Company (or one or more
of its Subsidiaries) or a third party provides credit support in connection
with a Securitization or Additional Warehouse Facility, including but not
limited to the following: (i) subordinated interests retained by the Company
or any Subsidiary in a special purpose financing entity or trust created for
a Securitization or Additional Warehouse Facility, (ii) restricted cash
accounts maintained by the Company, any
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<PAGE>
Subsidiary or any special purpose financing entity in connection with a
Securitization or Additional Warehouse Facility, and (iii) the excess
servicing receivable, as such asset is determined from time to time in
accordance with GAAP and reflected on the Consolidated balance sheet of
Company and its Subsidiaries.
"DEALER" shall mean a retail vendor of motor vehicles from which
AmeriCredit Financial Services, Inc. acquires Finance Contracts which is not
an Affiliate of any of Borrowers.
"DEALER DISCOUNT" shall mean, with respect to a Finance Contract, the
amount equal to the difference between (i) the face amount of the Finance
Contract, less unearned interest or finance charges and fees, and (ii) the
amount of cash advanced to the Dealer for the purchase of such Finance
Contract.
"DELINQUENT LOANS" shall mean Net Indirect Loans having five percent
(5.0%) or more of an installment payment or final payment which is more than
60 days past due (without regard to any grace period) on a contractual basis
except Net Indirect Loans which were secured by a motor vehicle that has been
repossessed.
"DIVIDENDS", in respect of any corporation, shall mean:
(1) Cash distributions or any other distributions on, or in respect
of, any class of capital stock of such corporation, except for
distributions made solely in shares of stock of the same class;
and
(2) Any and all funds, cash or other payments made in respect of the
redemption, repurchase or acquisition of such stock, unless such
stock shall be redeemed or acquired through the exchange of such
stock with stock of the same class.
"DOLLARS" and the sign "$" shall mean lawful currency of the United
States of America.
"DOMESTIC FINANCE CONTRACT" shall mean a Finance Contract that is
denominated and payable only in Dollars.
"EBIT" shall mean, for any period, income of the Company for such period
from operations after deducting all expenses except interest and taxes and
eliminating all extraordinary items.
"ELIGIBLE FINANCE CONTRACT" shall mean a Finance Contract,
(i) that is secured by an Eligible Vehicle,
(ii) that represents a Domestic Finance Contract with an Obligor
(other than an Affiliate of Borrower),
(iii) that was originated by a Dealer unless otherwise consented
to in writing by the Agent (which consent shall not be unreasonably
withheld),
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<PAGE>
(iv) that is not delinquent in the payment of any monthly
installment (without regard to any stated grace period) more than thirty
(30) days on a contractual basis prior to any repossession of the related
Eligible Vehicle,
(v) that has not been modified in any respect, unless the Finance
Contract constitutes an Eligible Modified Finance Contract,
(vi) in respect of which the related Eligible Vehicle has not been
repossessed,
(vii) that is not a Stayed Loan,
(viii) that, as set forth in a written opinion, in form and
substance, and from legal counsel, reasonably satisfactory to the Agent,
constitutes chattel paper in which a security interest may be perfected
under the UCC of the applicable jurisdiction by filing financing statements
and making a notation of a security interest on the chattel paper and
without taking possession of either the agreements evidencing such Finance
Contract or related certificates of title,
(ix) that is not subject to a Lien in favor of a Person other than
the Agent on behalf of the Banks and that is not subject to a Lien created
in conjunction with a Securitization or an Additional Warehouse Facility;
(x) in respect of which the Dealer has received good funds from
Borrowers in payment of the Finance Contract; and
(xi) in respect of which the representations and warranties set
forth in the Security Agreement are true.
"ELIGIBLE MODIFIED FINANCE CONTRACT" shall mean a Finance Contract that
has been modified in any way which affects the contractual timing or amount
of any installment payment due under such Finance Contract and which
satisfies each of the following conditions: (1) no installment payment was
more than sixty (60) days past due at the time of any modification, (2) no
modification extended the original maturity date by more than ninety (90)
days, (3) no modification caused a permanent reduction in any monthly
installment payment by more than five percent (5%), (4) the modification did
not permit the deferral of more than two (2) installment payments, (5) not
more than one (1) modification involving the deferral of two (2) installment
payments or not more than two (2) modifications involving the deferral of one
(1) installment payment has occurred during any twelve (12) month period, and
(6) is otherwise an Eligible Finance Contract.
"ELIGIBLE VEHICLE" shall mean a new or used motor vehicle that (i) to
the best of any Borrower's knowledge is not acquired for use in a commercial
enterprise or as part of a fleet, and (ii) in respect of which any of
Borrowers (a) has, within forty five (45) days following the date of a
Finance Contract, properly filed an application seeking to obtain legal title
or a first priority lien under the applicable provisions of the motor vehicle
or other similar law of the applicable jurisdiction and (b) has obtained or
obtains, within one hundred fifty (150) days following the date of a Finance
Contract, legal title or a first priority lien under applicable provisions of
the motor vehicle or other similar law of the applicable jurisdiction.
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<PAGE>
"ERISA" shall mean the Employee Retirement Income Security Act of 1974,
as amended, together with all regulations issued pursuant thereto.
"ENVIRONMENTAL CLAIM" shall mean any written notice by any Person
alleging potential liability or responsibility for (a) any removal or
remedial action, including, without limitation, any clean-up, removal or
treatment of any Hazardous Material or any action to prevent or minimize the
release or movement of any Hazardous Materials through or in the air, soil,
surface water, ground water or other property, (b) damage to the environment,
or costs with respect thereto, or (c) personal injury (including sickness,
disease or death), resulting from or based upon (i) the presence, release or
movement (including sudden or nonsudden, accidental or nonaccidental, leaks
or spills) of any Hazardous Material at, in or from the environment or any
property, whether or not owned by the Company, or (ii) circumstances forming
the basis of any violation, or alleged violation, of any Environmental Law or
any permit issued to Company or any of its Subsidiaries pursuant to any
Environmental Law.
"ENVIRONMENTAL LAWS" shall mean the Comprehensive Environmental
Response, Compensation, and Liability Act (42 U.S.C. Section 9601 ET SEQ.),
the Hazardous Material Transportation Act (49 U.S.C. Section 1801 ET SEQ.),
the Resource Conservation and Recovery Act (42 U.S.C. Section 6901 ET SEQ.),
the Federal Water Pollution Control Act (33 U.S.C. Section 1251 ET SEQ.),
the Clean Air Act (42 U.S.C. Section 7401 ET SEQ.), the Toxic Substances
Control Act (15 U.S.C. Section 2601 ET SEQ.), and the Occupational Safety
and Health Act (29 U.S.C. Section 651 ET SEQ.), as such laws have been or
hereafter may be amended or supplemented, and any and all analogous future
federal, or present and future state or local laws, and similar laws of
jurisdictions other than the United States, to which Company or any of its
Subsidiaries or any of its or their properties are subject.
"EURODOLLAR ADVANCE" shall mean any principal amount under a Note with
respect to which the interest rate is calculated by reference to the Adjusted
Interbank Rate for a particular Interest Period.
"EURODOLLAR BORROWING" shall mean any Borrowing composed of Eurodollar
Advances.
"EURODOLLAR BUSINESS DAY" shall mean a Business Day on which dealings in
Dollars are carried out in the London Interbank market.
"EURODOLLAR RESERVE REQUIREMENT" shall, on any day, mean that percentage
(expressed as a decimal fraction rounded up to the nearest 1/100th) which is
in effect on such day, as provided by the Board of Governors of the Federal
Reserve System (or any successor governmental body) applied for determining
the maximum reserve requirements (including without limitation, basic,
supplemental, marginal and emergency reserves) under Regulation D with
respect to "Eurocurrency liabilities" as currently defined in Regulation D,
or under any similar or successor regulation with respect to Eurocurrency
liabilities or Eurocurrency funding. Each determination by Agent of the
Eurodollar Reserve Requirement shall, in the absence of manifest error, be
conclusive and binding.
"EVENT OF DEFAULT" shall have the meaning assigned to it in Article X
hereof.
"FDIC" shall mean the Federal Deposit Insurance Corporation (or any
successor thereof).
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<PAGE>
"FEDERAL FUNDS RATE" shall mean, for any period, a fluctuating interest
rate per annum equal for each day during such period to the weighted average
of the rates on overnight Federal funds transactions with members of the
Federal Reserve System arranged by Federal funds brokers, as published for
such day (or, if such day is not a Business Day, for the next preceding
Business Day) by the Federal Reserve Bank of New York, or, if such rate is
not so published for any day which is a Business Day, the average of the
quotations for such day on such transactions received by the Agent from three
Federal funds brokers of recognized standing selected by Agent.
"FINANCE CONTRACT" shall mean a motor vehicle installment sales contract
assigned to AmeriCredit Financial Services, Inc. or an Affiliate of
AmeriCredit Financial Services, Inc. that is secured by title to, security
interests in, or liens on a motor vehicle under applicable provisions of the
motor vehicle or other similar law of the jurisdiction in which the motor
vehicle is titled and registered by the purchaser at the time the contract is
originated.
"FLOATING BASE ADVANCE" shall mean any principal amount under a Note
with respect to which the interest rate is calculated by reference to the
Floating Base Rate.
"FLOATING BASE BORROWING" shall mean any Borrowing composed of Floating
Base Advances.
"FLOATING BASE RATE" shall mean the greater of (a) the Floating Prime
Rate in effect from day to day or (b) the Federal Funds Rate plus one half of
one percent (.5%).
"FLOATING PRIME RATE" shall mean, on any date, the rate of interest most
recently announced within Wells Fargo Bank, N.A. at its principal office in
San Francisco, California as its Prime Rate, with the understanding that such
Prime Rate is one of its base rates and serves as the basis upon which
effective rates of interest are calculated for those loans making reference
thereto, and is evidenced by the recording thereof after its announcement in
such internal publication or publications as Wells Fargo Bank, N.A. may
designate.
"GENERALLY ACCEPTED ACCOUNTING PRINCIPLES" or "GAAP" shall mean those
generally accepted accounting principles and practices which are recognized
as such by the American Institute of Certified Public Accountants pursuant to
its Statement on Auditing Standards No. 69 and which are consistently applied
for all periods after the date hereof so as to properly reflect the financial
condition, and the results of operations and cash flows of Company on a
consolidated basis, except that any accounting principle or practice required
to be changed by the American Institute of Certified Public Accountants in
order to continue as a generally accepted accounting principle or practice
may so be changed.
"GOVERNMENTAL AUTHORITY" shall mean any government (or any political
subdivision or jurisdiction thereof), court, bureau, agency or other
governmental authority having jurisdiction over any of Borrowers or any of
their Subsidiaries or any of its or their business, operations or properties.
"GUARANTOR" shall mean any of the Guarantors.
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<PAGE>
"GUARANTORS" shall mean AmeriCredit Premium Finance, Inc., a Delaware
corporation, and ACF Investment Corp., a Delaware corporation, and any other
corporation which executes a Guaranty Agreement after the date of this Loan
Agreement.
"GUARANTY" of any Person shall mean any contract, agreement or
understanding of such Person pursuant to which such Person guarantees, or in
effect guarantees, any Indebtedness of any other Person (the "Primary
Obligor") in any manner, whether directly or indirectly, including without
limitation agreements:
(1) to purchase such Indebtedness or any property constituting security
therefor;
(2) to advance or supply funds (a) for the purchase or payment of such
Indebtedness, or (b) to maintain working capital or other balance
sheet conditions, or otherwise to advance or make available funds for
the purchase or payment of such Indebtedness;
(3) to purchase property, securities or services primarily for the purpose
of assuring the holder of such Indebtedness of the ability of the
Primary Obligor to make payment of the Indebtedness; or
(4) otherwise to assure the holder of the Indebtedness of the Primary
Obligor against loss in respect thereof; EXCEPT THAT "Guaranty" shall
not include the endorsement by Company or a Subsidiary in the ordinary
course of business of negotiable instruments or documents for deposit
or collection.
"GUARANTY AGREEMENT" shall mean the guaranty agreement executed by the
Guarantors, in the form of EXHIBIT B hereto, as the same may be amended or
supplemented from time to time.
"HAZARDOUS MATERIALS" shall mean those substances which are regulated by
or form the basis of liability under any Environmental Laws.
"INDEBTEDNESS" shall mean, with respect to any Person, all indebtedness,
obligations and liabilities of such Person, including without limitation:
(1) all "liabilities" which would be reflected on a balance sheet of
such Person, prepared in accordance with Generally Accepted
Accounting Principles;
(2) all obligations of such Person in respect of any Capital Lease;
(3) all obligations of such Person in respect of any Guaranty; and
(4) the undrawn face amount of all outstanding Letters of Credit and all
indebtedness and obligations resulting from draws under Letters of
Credit.
"INDIRECT LOAN" shall mean any Finance Contract or promissory note
received for or in connection with the financing of the sale of a motor
vehicle by a Dealer.
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<PAGE>
"INTERBANK OFFERED RATE" shall mean, with respect to each Interest
Period, the average of the rate of interest (rounded upwards, if necessary to
the next 1/16th of 1%) at which deposits in an amount approximately equal to
the requested Borrowing and for the same term as the particular Interest
Period are offered to Agent in the London Interbank Eurodollar market for
delivery on the first day of the Interest Period as determined at 11:00 A.M.
(London, England time) two (2) Eurodollar Business Days prior thereto (except
in the case of a Swing Line Borrowing, the rate of interest shall not be
determined two (2) Eurodollar Business Days prior thereto).
"INTERCREDITOR AGREEMENT" shall mean that one certain Intercreditor
Agreement dated as of October 8, 1997 by and among The Chase Manhattan Bank,
Wells Fargo Bank (Texas), National Association, CP Funding Corp. and
AmeriCredit Financial Services, Inc.
"INTEREST COVERAGE RATIO" shall mean (a) the sum of EBIT and the
amortization of excess servicing receivable LESS the gain on sale of Finance
Contracts DIVIDED BY (b) total interest expense determined in accordance with
GAAP.
"INTEREST PERIOD" shall mean, with respect to a Eurodollar Advance, a
period commencing:
(i) on the borrowing date of such Eurodollar Advance made pursuant to
Section 2.02 of this Loan Agreement; or
(ii) on the Conversion Date pertaining to such Eurodollar Advance, if
such Eurodollar Advance is made pursuant to a conversion as
described in Section 2.02(c) hereof; or
(iii) on the date of borrowing specified in the Request for
Borrowing in the case of a rollover to a successive
Interest Period,
and ending one (1), two (2) or three (3) months thereafter (in the case of a
Eurodollar Advance), as Borrowers shall elect in accordance with Section
2.02(c) of this Loan Agreement; provided, that:
(A) any Interest Period which would otherwise end on a day which is not
a Eurodollar Business Day shall be extended to the next succeeding
Eurodollar Business Day UNLESS such Eurodollar Business Day falls in
another calendar month in which case such Interest Period shall end
on the next preceding Eurodollar Business Day;
(B) any Interest Period which begins on the last Eurodollar Business Day
of a calendar month (or on a day for which there is no numerically
corresponding day in the calendar month or at the end of such
Interest Period) shall, subject to clause (A) above, end on the last
Eurodollar Business Day of a calendar month; and
(C) if the Interest Period for any Eurodollar Advance would otherwise
end after the Termination Date such Interest Period shall end on the
Termination Date.
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<PAGE>
"INVESTMENT" shall mean any direct or indirect purchase or other
acquisition of, or a beneficial interest in, capital stock or other
securities or ownership interests of any other Person, or any direct or
indirect loan, advance (other than advances to employees for moving and
travel expenses, drawing accounts and similar expenditures in the ordinary
course of business) or capital contribution to or investment in any other
Person, including without limitation the incurrence or sufferance of
Indebtedness or accounts receivable of any other Person which are not current
assets or do not arise from sales to that other Person in the ordinary course
of business.
"LAW" shall mean all statutes, laws, ordinances, rules, regulations,
orders, writs, injunctions or decrees of any Tribunal.
"LETTER OF CREDIT" shall mean any outstanding standby letter of credit
or commercial letter of credit for the account of any of Borrowers.
"LIEN" shall mean any mortgage, pledge, security interest, encumbrance,
lien or charge of any kind, including without limitation, any agreement to
give any of the foregoing, any conditional sale or other title retention
agreement, any lease in the nature thereof, and the filing of or agreement to
give any financing statement or other similar form of public notice under the
Laws of any jurisdiction.
"LOAN DOCUMENTS" shall mean this Loan Agreement, the Notes, (including
any renewals, extensions and refundings thereof), the Security Agreement, the
Guaranty Agreement, the Intercreditor Agreement, and any agreements or
documents (and with respect to this Loan Agreement, and such other agreements
and documents, any amendments or supplements thereto or modifications
thereof) executed or delivered pursuant to the terms of this Loan Agreement.
"MAJORITY BANKS" shall mean, at any time, Banks holding Notes
representing at least sixty-six and 2/3 percent (66 2/3%) of the aggregate
unpaid principal amount of the aggregate Revolving Credit Loans or if no
Revolving Credit Loans are at the time outstanding, Banks having at least
sixty-six and 2/3 percent (66 2/3%) of the Total Revolving Credit Commitment.
"MATERIAL ADVERSE EFFECT" shall mean any act, circumstance, occurrence
or event that (i) could have any adverse effect whatsoever upon the validity
or enforceability of the Loan Documents, (ii) causes or, with notice or lapse
of time, or both, could cause an Event of Default under this Loan Agreement,
(iii) is or reasonably could be expected to be material and adverse to the
properties, business, prospects or conditions (financial or otherwise) of any
of Borrowers or the Guarantors or their respective Subsidiaries on a
Consolidated basis, or (iv) could reasonably be expected to impair the
ability of any of Borrowers to perform their respective obligations under the
Loan Documents in any material respect.
"MAXIMUM RATE" shall mean, on any day, the highest nonusurious rate of
interest (if any) permitted by applicable law on such day. Banks hereby
notify Borrowers that, and disclose to Borrowers that, for purposes of Tex.
Rev. Civ. Stat. Ann. Art. 5069-1.04, as it may from time to time be amended,
the "applicable rate ceiling" shall be the "indicated rate" ceiling from time
to time in effect as limited by Art. 5069-1.04(b); provided, however, that to
the extent permitted by applicable law, Banks reserve the right to change the
"applicable rate ceiling" from time to time by further notice and disclosure
to Borrowers; and, provided further, that the
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"highest nonusurious rate of interest permitted by applicable law" for
purposes of this Loan Agreement and the Notes shall not be limited to the
applicable rate ceiling under Art. 5069-1.04 if federal laws or other state
laws now or hereafter in effect and applicable to this Loan Agreement and the
Notes (and the interest contracted for, charged and collected hereunder or
thereunder) shall permit a higher rate of interest.
"MORTGAGE SUBSIDIARY" shall mean any subsidiary of Borrowers (whether
now existing or hereafter formed or acquired) engaged in the business of
making, originating or taking assignments of residential mortgage loans to
consumer borrowers.
"NET AMOUNT" shall mean with respect to Eligible Finance Contracts, as
of any date, the outstanding face amount thereof as of such date,
MINUS (1) (without duplication) to the extent included in the face amount
thereof, unearned interest or finance charges with respect to future periods
(or reserves with respect to unearned interest or finance charges) and (2)
the aggregate amount by which the aggregate unpaid principal balance of
Eligible Finance Contracts which have been modified during the preceding
three (3) month period exceeds three and one-half percent (3.5%) of the
aggregate unpaid principal balance of all Eligible Finance Contracts.
"NET CREDIT LOSSES" shall mean, for any period, the actual aggregate
amount of principal of Indirect Loans charged off prior to the application of
the Dealer Discount or reserves during such period LESS the aggregate amount
of Recoveries on Indirect Loans during such period.
"NET INCOME" or "NET LOSS" shall mean, with respect to any period, the
consolidated net earnings or net loss, as the case may be, of Company and its
Subsidiaries for such period as determined in accordance with GAAP.
"NET INDIRECT LOANS" shall mean the aggregate amount of all Indirect
Loans LESS the amount of unearned finance charges.
"NOTES" shall mean the promissory notes executed by Borrowers and
delivered pursuant to the terms of this Loan Agreement, together with any
renewals, extensions or modifications thereof. "Note" shall mean any of the
Notes.
"OBLIGATIONS" shall mean all present and future indebtedness,
obligations, and liabilities of Borrowers to Banks or any of Banks, and all
renewals and extensions thereof, or any part thereof, arising pursuant to
this Loan Agreement or represented by the Notes, and all interest accruing
thereon (including, without limitation, interest accruing after bankruptcy
whether or not a claim for post-petition interest is allowed in such
proceeding), and attorneys' fees incurred in the enforcement or collection
thereof, regardless of whether such indebtedness, obligations and liabilities
are direct, indirect, fixed, contingent, joint, several or joint and several;
together with all indebtedness, obligations and liabilities of Borrowers
evidenced or arising pursuant to any of the other Loan Documents, and all
renewals and extensions thereof, or part thereof.
"OBLIGOR" shall mean any one or more individuals (other than a Dealer)
who are liable in whole or in part on a Finance Contract (determined without
regard to limitations, if any, on recourse).
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<PAGE>
"OFFICER'S CERTIFICATE" shall mean a certificate signed in the name of
the Company by its chief executive officer, its president, its chief
financial officer, its treasurer or one of its vice presidents.
"PAST DUE RATE" shall mean the lesser of (a) the Floating Base Rate in
effect from day-to-day, plus five percent (5.0%), or (b) the Maximum Rate.
"PBGC" shall mean the Pension Benefit Guaranty Corporation, and any
successor to all or any of the Pension Benefit Guaranty Corporation's
functions under ERISA.
"PERCENTAGE" shall mean, with respect to any Bank, such Bank's Pro Rata
share of the Total Revolving Credit Commitment, as set forth in Section 2.01
opposite its name under the heading "Revolving Commitment Percentage."
"PERMITTED LIENS" shall mean: (i) Liens on equipment and fixed assets,
including purchase money Liens, relating to or securing obligations in an
aggregate amount not to exceed the positive difference between (a) twenty
million dollars ($20,000,000) and (b) the aggregate amount of Liens described
in (viii) below at any time; (ii) pledges or deposits made to secure payment
of Worker's Compensation (or to participate in any fund in connection with
Worker's Compensation), unemployment insurance, pensions or social security
programs; (iii) Liens imposed by mandatory provisions of law such as for
materialmen's, mechanics, warehousemen's and other like Liens arising in the
ordinary course of business, securing Indebtedness whose payment is not yet
due unless the same are being contested in good faith and for which adequate
reserves have been provided; (iv) Liens for taxes, assessments and
governmental charges or levies imposed upon a Person or upon such Person's
income or profits or property, if the same are not yet due and payable or if
the same are being contested in good faith and as to which adequate reserves
have been provided; (v) Liens with respect to good faith deposits in
connection with tenders, leases, real estate bids or contracts (other than
contracts involving the borrowing of money unless such Liens are otherwise
Permitted Liens), pledges or deposits to secure public or statutory
obligations, deposits to secure (or in lieu of) surety, stay, appeal or
customs bonds and deposits to secure the payment of taxes, assessments,
customs duties or other similar charges; (vi) encumbrances consisting of
zoning restrictions, easements, or other restrictions on the use of real
property, provided that such do not impair the use of such property for the
uses intended, and none of which is violated by Company or any of its
Subsidiaries in connection with existing or proposed structures or land use;
(vii) Liens and encumbrances created and existing in connection with
Securitizations and any Additional Warehouse Facility; (viii) Liens on short
term investments pledged to Texas Commerce Bank in an aggregate amount not to
exceed two million dollars ($2,000,000) with respect to the Mortgage
Subsidiary; and (ix) Liens on Credit Enhancement Assets.
"PERSON" shall mean and include an individual, partnership, joint
venture, corporation, limited liability company, trust, Tribunal,
unincorporated organization or government or any department, agency or
political subdivision thereof.
"PLAN" shall mean an employee benefit plan or other plan maintained by
Company for employees of Company and any of its Subsidiaries and/or covered
by Title IV of ERISA, or subject to the minimum funding standards under
Section 412 of the Internal Revenue Code of 1986, as amended.
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"PRO RATA" and "PRO RATA PART" shall mean, when determined for any Bank,
the proportion, stated as a percentage, that such Bank's Commitment bears to
the Total Commitment.
"RATINGS" shall mean the rating assigned to the Indebtedness of
Borrowers to Banks by Standard & Poors, Moody's Investor Service and Fitch
Investor Service.
"RECOVERIES" shall mean amounts realized on the sale of collateral
securing a Finance Contract, rebates on ancillary products and collections on
charged-off deficiencies and proceeds of insurance claims related to the
collateral less direct costs of repossession.
"REGULATION U" shall mean Regulation U promulgated by the Board of
Governors of the Federal Reserve System, 12 C.F.R. Part 221, or any other
regulation hereafter promulgated by said Board to replace the prior
Regulation U and having substantially the same function.
"REGULATION X" shall mean Regulation X promulgated by the Board of
Governors of the Federal Reserve System, 12 C.F.R. Part 224, or any other
regulation hereafter promulgated by said Board to replace the prior
Regulation X and having substantially the same function.
"REGULATORY DEFECT" shall mean (i) any failure of any of Borrowers or
any of the Guarantors to comply with any Law or any rules, regulations and
other requirements of any Governmental Authority which would have a Material
Adverse Effect, and/or (ii) any unfavorable examination report shall be
received by any of Borrowers or any of the Guarantors from any Governmental
Authority regarding any of the businesses or activities in which the
Borrowers and Guarantors are engaged, if such report would have a Material
Adverse Effect.
"REPORTABLE EVENT" shall have the meaning assigned to that term in Title
IV of ERISA.
"REPOSSESSED LOANS" shall mean the aggregate amount of all Indirect
Loans with respect to which the motor vehicle securing the payment of the
Indirect Loan has been repossessed by Borrowers and all applicable time
periods for reinstatement of the Indirect Loan or redemption of the motor
vehicle have expired.
"REVOLVING CREDIT BORROWING BASE" shall mean, as of any date of
calculation, an amount equal to eighty percent (80%) of the Net Amount of
Eligible Finance Contracts pledged to the Agent for the ratable benefit of
the Banks pursuant to the Security Agreement; provided, however, if the ratio
of the aggregate Dealer Discount to Net Indirect Loans originated in a
trailing three (3) month period exceeds five percent (5.0%), such Revolving
Credit Borrowing Base advance rate percentage of the Net Amount of Eligible
Finance Contracts shall be reduced by two percentage points for each full
percentage point that the ratio of the aggregate Dealer Discount to Net
Indirect Loans originated in a trailing three (3) month period, as of any
date of calculation, exceeds five percent (5.0%).
"REVOLVING CREDIT LOANS" shall have the meaning assigned to it in
Section 2.01 hereof.
"SECURITIZATION" shall mean a transaction wherein an identified pool of
Finance Contracts and related documents subject to a security interest in
favor of Banks or other Additional Warehouse Facility are sold, pledged or
conveyed by AmeriCredit Financial Services, Inc., or an Affiliate thereof, to
a grantor trust or other special purpose financing entity as
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collateral security for the issuance by such grantor trust or other special
purpose financing entity of notes, certificates or other evidence of
indebtedness.
"SECURITY AGREEMENT" shall mean the Restated Security Agreement, dated
as of October 3, 1997, delivered by Borrowers to the Agent for the benefit of
the Banks, granting the security interests in certain of the properties and
assets of each of Borrowers described therein, as amended or supplemented
from time to time.
"SENIOR NOTES" shall mean those senior unsecured notes of the Company
due 2004 and all Guarantees thereof by the other Borrowers, Guarantors and
the Mortgage Subsidiary sold pursuant to a Preliminary Offering Memorandum
dated January 20, 1997 and issued or to be issued pursuant to an Indenture
between the Company and the trustee named therein, and any new issue of debt
securities of the Company and all Guarantees thereof by the other Borrowers,
Guarantors and the Mortgage Subsidiary with the same terms issued in exchange
for such senior unsecured notes.
"STAYED LOAN" shall mean a Finance Contract:
(i) as to which an Obligor obligated on such Finance Contract (any
such Obligor, together with its Subsidiaries, herein, collectively, the
"Applicable Obligor"), shall file a petition or seek relief under or take
advantage of any insolvency law; make an assignment for the benefit of its
creditors; commence a proceeding for the appointment of a receiver,
trustee, liquidator, custodian or conservator of itself or of the whole or
substantially all of its property; file or consent to a petition under any
chapter of the United States Bankruptcy Code, as amended (11 U.S.C. Section
101 ET SEQ.), or file a petition or seek relief under or take advantage of
any other similar law or statute of the United States of America, any state
thereof or any foreign country; or
(ii) as to which a court of competent jurisdiction shall enter an
order, judgment or decree appointing or authorizing a receiver, trustee,
liquidator, custodian or conservator of the Applicable Obligor or of the
whole or substantially all of its property, or enter an order for relief
against the Applicable Obligor in any case commenced under any chapter of
the United States Bankruptcy Code, as amended, or grant relief under any
similar law or statute of the United States of America, any state thereof
or any foreign country; or as to which, under the provisions of any law
for the relief or aid of debtors, a court of competent jurisdiction or a
receiver, trustee, liquidator, custodian or conservator shall assume
custody or control or take possession of the Applicable Obligor or of the
whole or substantially all of its property; or as to which there is
commenced against the Applicable Obligor any proceeding for any of the
foregoing relief or as to which a petition is filed against the Applicable
Obligor under any chapter of the United States Bankruptcy Code, as amended,
or under any other similar law or statute of the United States of America
or any state thereof or any foreign country and such proceeding or petition
remains undismissed for a period of 60 days; or as to which the applicable
Obligor by any act indicates its consent to, approval of or acquiescence in
any such proceeding or petition;
PROVIDED, HOWEVER, that a Finance Contract shall cease to be a Stayed Loan
at such time as so long as (A) all principal, interest and other amounts
theretofore due and payable according to the terms of such Finance Contract
(as such terms have been approved,
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adjusted and/or confirmed pursuant to court order or otherwise in any
proceeding referred to in clause (i) or (ii) of this definition) have
been irrevocably paid to or collected or received by Borrower and all
such amounts thereafter due and payable shall be paid to or collected or
received by the Borrower when due (or within any stated grace period)
and (B) such Finance Contract shall be secured to the same extent as
before such Finance Contract first became a Stayed Loan and no dispute
regarding the existence, validity or priority of such security shall be
pending in any court or asserted in any pending appeal.
"SUBSIDIARY" shall mean, as to any particular parent corporation, any
corporation of which more than fifty percent (by number of votes) of the
Voting Stock shall be owned by such parent corporation and/or one or more
corporations which themselves have more than fifty percent (by number of
votes) of their Voting Stock owned by such parent corporation. As used
herein, the term "Subsidiary" shall also mean any "Subsidiary" of the Company.
"SWING LINE BORROWING" shall mean a Borrowing made pursuant to Section
2.03.
"SWING LINE LOAN" shall mean a loan pursuant to Section 2.03.
"SWING LINE MATURITY DATE" shall mean October 2, 1998.
"SWING LINE NOTE" shall mean that one certain promissory note executed
by Borrowers and payable to the order of Wells Fargo Bank in the amount of
twenty million dollars ($20,000,000) and is one of the Notes.
"SWING LINE SUBFACILITY" shall mean the subfacility which shall never
exceed the aggregate of $20,000,000 as described in, and subject to the
limitation of, Section 2.03.
"SWING LINE DEBT" shall mean, on the date of determination, that portion
outstanding, under the Swing Line Subfacility.
"TAXES" shall mean all taxes, levies, assessments, fees, withholdings or
other charges at any time imposed by any Laws or Tribunal.
"TANGIBLE NET WORTH" shall mean, as of any date, the total shareholders'
equity which would appear on a consolidated balance sheet of Company prepared
as of such date in accordance with Generally Accepted Accounting Principles
LESS intangible assets which should appear on a consolidated balance sheet of
Company prepared as of such date in accordance with General Accepted
Accounting Principles.
"TERMINATION DATE" shall mean October 2, 1998.
"TRIGGER EVENT" shall mean any trigger event as defined in any of the
agreements relating to a Securitization or the equivalent.
"UCC" shall mean, with respect to any jurisdiction, the Uniform
Commercial Code as then in effect in that jurisdiction. References to terms
defined in the UCC shall mean such terms in the UCC as in effect in such
jurisdiction.
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"VOTING STOCK" shall mean, with respect to any Subsidiary, any shares of
any class of stock of such Subsidiary having general voting power under
ordinary circumstances to elect a majority of the Board of Directors of such
Subsidiary irrespective of whether at the time stock of any other class or
classes shall have or might have voting power by reason of the happening of
any contingency.
OTHER DEFINITIONAL PROVISIONS.
(a) All terms defined in this Loan Agreement shall have the
above-defined meanings when used in the Notes or any Loan Documents,
certificate, report or other document made or delivered pursuant to this Loan
Agreement, unless the context therein shall otherwise require.
(b) Defined terms used herein in the singular shall import the plural
and VICE VERSA.
(c) The words "hereof," "herein," "hereunder" and similar terms when
used in this Loan Agreement shall refer to this Loan Agreement as a whole and
not to any particular provision of this Loan Agreement.
(d) All financial and other accounting terms not otherwise defined
herein shall be defined and calculated in accordance with Generally Accepted
Accounting Principles consistently applied.
ARTICLE II
REVOLVING CREDIT LOANS
2.01. REVOLVING CREDIT COMMITMENT.
(a) REVOLVING LOAN COMMITMENTS. Subject to the terms and conditions of
this Loan Agreement and the Revolving Credit Borrowing Base limitation in
Section 2.01(b), each Bank severally agrees to extend to Borrowers, from the
date hereof through the Termination Date (the "Revolving Credit Period"), a
revolving line of credit which shall not exceed at any one time outstanding
the amount set forth opposite its name below (for each Bank, such amount is
hereinafter referred to as its "Commitment"):
<TABLE>
<CAPTION>
Commitment
Percentage
Banks Commitment (Rounded)
----- ---------- -----------
<S> <C> <C>
Wells Fargo Bank (Texas), $45,000,000 14.516129035%
National Association
Bank One, Texas, N.A. $40,000,000 12.903225806%
LaSalle National Bank $30,000,000 9.677419355%
Texas Commerce Bank National $25,000,000 8.064516129%
Association
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The Sumitomo Bank, Limited $25,000,000 8.064516129%
Comerica Bank-Texas $25,000,000 8.064516129%
BankAmerica Business Credit, Inc $25,000,000 8.064516129%
Harris Trust and Savings Bank $20,000,000 6.451612903%
The Bank of Nova Scotia $15,000,000 4.838709677%
CIBC Inc. $15,000,000 4.838709677%
Credit Lyonnais New York Branch $15,000,000 4.838709677%
BankBoston, N.A. $15,000,000 4.838709677%
The Long Term Credit Bank of Japan, $15,000,000 4.838709677%
Limited ------------ --------------
$310,000,000 100.000000000%
------------ --------------
------------ --------------
</TABLE>
No Bank shall be obligated to make any Advance under this Section 2.01 and
Section 2.02 if, immediately after giving effect thereto, the aggregate
amount of all indebtedness and obligations of Borrowers to such Bank under
Section 2.01, Section 2.02 and Section 2.03 exceeds the lesser of (a) such
Bank's Commitment or (b) an amount equal to such Bank's Percentage TIMES the
Revolving Credit Borrowing Base in effect at such time.
Within the limits of this Section 2.01, during the Revolving Credit
Period, Borrowers may borrow, prepay pursuant to Section 3.03 hereof and
reborrow under this Section 2.01; provided, however, the total number of
unpaid Eurodollar Borrowings shall not exceed five (5) at any time. Each
Borrowing pursuant to this Section 2.01 and Section 2.02 shall be funded
ratably by Banks in proportion to their respective Percentages. Each
advance made by a Bank under Section 2.01 and Section 2.02 is herein
called an "Advance"; all Advances made by a Bank hereunder are herein
collectively called a "Revolving Credit Loan"; the aggregate unpaid principal
balance of all Advances made by Banks hereunder are herein collectively
called the "Revolving Credit Loans"; and the combined Advances made by Banks
on any given day are herein collectively called a "Borrowing". The "Total
Commitment" shall be three hundred ten million dollars ($310,000,000).
(b) BORROWING BASE LIMITATION. The maximum aggregate amount
outstanding at any time under the Revolving Credit Loans shall not exceed the
Revolving Credit Borrowing Base then in effect.
(c) BORROWING BASE DEFICIENCY. If the aggregate unpaid principal
balance of the Revolving Credit Loans and all Swing Line Borrowings shall at
any time exceed the Revolving Credit Borrowing Base then in effect (the
"Borrowing Base Deficiency"), Borrowers shall pay to Agent within one (1)
Business Day of the date of the earlier of the most recent Borrowing Base
Certificate which discloses a Borrowing Base Deficiency or the date of
notification to Borrowers by Agent of the existence of a Borrowing Base
Deficiency an amount equal to such Borrowing Base Deficiency so that the
aggregate unpaid principal balance of the Revolving
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Credit Loans and Swing Line Borrowings (after giving effect to such payment)
is not in excess of the Revolving Credit Borrowing Base then in effect.
(d) LOAN ORIGINATION FEE. At the time of execution of this Agreement,
Borrowers shall pay to each Bank, including Agent, a loan origination fee in
an amount equal to the sum of (i) one twentieth percent (.05%) of each such
Bank's Revolving Commitment under the Prior Loan Agreement and (ii) one tenth
percent (.10%) of the positive difference between such Bank's Commitment
under this Loan Agreement and such Bank's Revolving Commitment under the
Prior Loan Agreement.
(e) UNUSED LINE FEE. In addition to the payments provided for in
Article III hereof, Borrowers shall pay to Agent, for the account of each
Bank, on the first day of each fiscal quarter of Company beginning January 1,
1998 during the period ending on the Termination Date a loan commitment fee
at the rate of one quarter of one percent (.25%) per annum (calculated on the
basis of a year consisting of 360 days) of the average daily amount of each
such Bank's Commitment which was unused during the immediately preceding
fiscal quarter of Company. Outstanding Borrowings under the Swing Line
Subfacility shall not be treated as outstanding in determining the amount of
each such Bank's Commitment which is unused at any time for purposes of
calculating the loan commitment fee. Borrowers and Banks acknowledge and
agree that the commitment fees payable hereunder are bona fide commitment
fees and are intended as reasonable compensation to Banks for committing to
make funds available to Borrowers as described herein and for no other
purpose.
2.02. MANNER OF BORROWING.
(a) REQUEST FOR BORROWING. Each request by Borrowers to Agent for a
Borrowing under Section 2.01 hereof (a "Request for Borrowing") shall be in
writing and specify the aggregate amount of such requested Borrowing, the
requested date of such Borrowing, and, when the Request for Borrowing
specifies a Eurodollar Borrowing, the Interest Period which shall be
applicable thereto; provided, however, that the aggregate number of unpaid
Eurodollar Borrowings shall not exceed five (5) at any time. Borrowers shall
furnish to Agent the Request for Borrowing by at least 11:00 a.m. (Fort Worth
time) three (3) Eurodollar Business Days prior to the requested Eurodollar
Borrowing date (which must be a Eurodollar Business Day) and by at least
11:00 a.m. (Fort Worth time) on the requested borrowing date (which must be a
Business Day) for a Floating Base Advance. Any Request for Borrowing shall:
(i) in the case of a Floating Base Borrowing, be in the form attached hereto
as EXHIBIT "C," and (ii) in the case of a Eurodollar Borrowing, be in the
form attached hereto as EXHIBIT "D." Each Floating Base Borrowing shall be in
an aggregate principal amount of five hundred thousand dollars ($500,000.00)
or any higher integral multiple of one hundred thousand dollars
($100,000.00). Each Eurodollar Borrowing shall be in an amount of at least
one million dollars ($1,000,000.00) or any higher integral multiple of
$1,000,000.00.
Prior to making a Request for Borrowing, Borrowers may (without
specifying whether the anticipated Borrowing shall be a Floating Base
Borrowing or Eurodollar Borrowing) request that Agent provide Borrowers with
the most recent Interbank Offered Rate available to Agent. Agent shall
endeavor to provide such quoted rates to Borrowers on the date of such
request.
Each Request for Borrowing shall be irrevocable and binding on Borrowers
and, in respect of the Borrowing specified in such Request for Borrowing,
Borrowers shall indemnify
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each Bank against any cost, loss or expense incurred by such Bank as a result
of any failure to fulfill, on or before the date specified for such
Borrowing, the conditions to such Advance set forth herein, including without
limitation, any cost, loss or expense incurred by reason of the liquidation
or reemployment of deposits or other funds acquired by any Bank to fund the
Advance to be made by such Bank as part of such Borrowing when such Advance,
as a result of such failure, is not made on such date.
After receiving a Request for Borrowing in the manner provided herein,
Agent shall promptly notify each Bank by telephone (confirmed immediately by
telecopy, telex or cable), telecopy, telex or cable of the amount of the
Borrowing and such Bank's pro rata share of such Borrowing, the date on which
the Borrowing is to be made, the interest option selected and, if applicable,
the Interest Period selected.
(b) FUNDING. Each Bank shall, before 2:00 P.M. (Fort Worth time) on
the date of such Borrowing specified in the notice received from Agent
pursuant to Section 2.02(a), deposit such Bank's ratable portion of such
Borrowing in immediately available funds to Agent's account. Upon
fulfillment of all applicable conditions set forth herein and after receipt
by Agent of such funds, Agent shall pay or deliver such proceeds to or upon
the order of Borrowers at the principal office of Agent in immediately
available funds. The failure of any Bank to make any Advance required to be
made by it hereunder shall not relieve any other Bank of its obligation to
make its Advance hereunder. If any Bank shall fail to provide its ratable
portion of such funds and if all conditions to such Borrowing shall have been
satisfied, the Agent will make available such funds as shall have been
received by it from the other Banks, in accordance with this Section 2.02(b).
Neither Agent nor any Bank shall be responsible for the performance by any
other Bank of its obligations hereunder. In the event of any failure by a
Bank to make an Advance required hereunder, the other Banks may (but shall
not be required to) purchase (on a pro rata basis, according to their
respective Percentages) such Bank's Revolving Credit Note. Upon the failure
of a Bank to make an Advance required to be made by it hereunder, the Agent
shall use good faith efforts to obtain one or more banks, acceptable to
Borrowers and Agent, to replace such Bank, but neither the Agent nor any
other Bank shall have any liability or obligation whatsoever as a result of
the failure to obtain a replacement for such Bank.
Unless the Agent shall have received notice from a Bank prior to the
date of any Borrowing that such Bank will not make available to the Agent
such Bank's ratable portion of such Borrowing, the Agent may assume that such
Bank has made such portion available to the Agent on the date of such
Borrowing in accordance with Section 2.02(b) and the Agent may, in reliance
upon such assumption, make available to or on behalf of Borrowers on such
date a corresponding amount. If and to the extent such Bank shall not have
so made such ratable portion available to the Agent, such Bank severally
agrees to repay to the Agent forthwith on demand such corresponding amount
together with interest thereon, for each day from the date such amount is
made available to or on behalf of Borrowers until the date such amount is
repaid to the Agent at the rate per annum equal to the Federal Funds Rate.
If such Bank shall repay to the Agent such corresponding amount, such amount
so repaid shall constitute such Bank's Advance as part of such Borrowing for
purposes of this Agreement.
(c) SELECTION OF INTEREST OPTION. Upon making a Request for Borrowing
under Section 2.02(a) hereof, Borrowers shall advise Agent as to whether the
Borrowing shall be (i) a Eurodollar Borrowing, in which case Borrowers shall
specify the applicable Interest Period therefor, or (ii) a Floating Base
Borrowing. At least three (3) Eurodollar Business Days prior
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to the termination of each Interest Period with respect to a Eurodollar
Borrowing, Borrowers shall give Agent written notice (the "Rollover Notice")
of the interest option which shall be applicable to such Borrowing upon the
expiration of such Interest Period. If Borrowers shall specify that such
Borrowing shall be a Eurodollar Borrowing, such Rollover Notice shall also
specify the length of the succeeding Interest Period selected by Borrowers
with respect to such Borrowing. Each Rollover Notice shall be irrevocable
and effective upon notification thereof to Agent. If the required Rollover
Notice shall not have been timely received by Agent prior to the expiration
of the then relevant Interest Period, then Borrowers shall be deemed to have
elected to have such Borrowing be a Floating Base Borrowing. With respect to
any Floating Base Borrowing, Borrowers shall have the right, on any
Eurodollar Business Day (a "Conversion Date") to convert such Floating Base
Borrowing to a Eurodollar Borrowing by giving Agent a Rollover Notice of such
selection at least three (3) Eurodollar Business Days prior to such
Conversion Date.
Notwithstanding anything to the contrary contained herein, Borrowers
shall have no right to request a Eurodollar Borrowing if (1) an Event of
Default has occurred and is continuing, (2) the interest rate applicable
thereto under Section 2.04 hereof would exceed the Maximum Rate in effect on
the first day of the Interest Period applicable to such Eurodollar Borrowing,
or (3) either of the circumstances described in Section 4.01 exist.
Each Rollover Notice shall be irrevocable and binding upon Borrowers,
and in respect of the Borrowing, conversion or extension specified in such
Rollover Notice, Borrowers shall indemnify and hold harmless each Bank
against any cost, loss or expense incurred by such Bank as a result of any
failure to convert or extend as specified in such Rollover Notice, including
without limitation, any loss, cost or expense incurred by reason of the
liquidation or redeployment of deposits or other funds required by any Bank
to fund, convert or extend the Advance specified in such Rollover Notice.
2.03 SWING LINE SUBFACILITY.
(a) For the convenience of the parties and as an integral part of the
transactions contemplated by the Loan Documents, Wells Fargo Bank (Texas),
National Association ("Wells Fargo"), solely for its own account, may make
any requested Borrowing in the form of EXHIBIT "E" of $500,000 or a greater
integral multiple of $100,000, subject to those terms and conditions
applicable to Borrowings set forth in Section 6.02(c), (d), (e), and (f),
directly to Borrowers as a Swing Line Borrowing without requiring any other
Bank to fund its Pro Rata Part thereof unless and until Section 2.03(b) is
applicable; PROVIDED THAT: (i) each such Borrowing must occur on a Business
Day prior to, and not on or after, the Swing Line Maturity Date; (ii) the
aggregate Swing Line Debt outstanding on any date of determination shall not
exceed $20,000,000; (iii) on any date of determination, the total amount
outstanding under this Loan Agreement, after taking into account such
requested Swing Line Borrowing, shall never exceed the lesser of the Total
Commitment or the Revolving Credit Borrowing Base then in effect; (iv) at the
time of such Swing Line Borrowing, no Event of Default or event, which with
the giving of notice or the passage of time, or both, could constitute an
Event of Default, shall have occurred and be continuing; and (v) no
additional Swing Line Borrowing shall be made at any time after any Bank has
refused, notwithstanding the requirements of Section 2.03(b), to purchase a
participation in any Swing Line Borrowing as provided in Section 2.03(b), and
until such purchase shall occur or until the Swing Line Borrowing has been
repaid. Each Borrowing under the Swing Line Subfacility shall be available
and may be prepaid on same day by
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telephonic notice (to be followed immediately by written notice) from
Borrowers to Wells Fargo, SO LONG AS such notice is received by Wells Fargo
prior to 12:00 noon (Fort Worth, Texas time). Each Swing Line Borrowing shall
be due and payable by Borrowers on the earlier of (a) five (5) Business Days
after the date of such Swing Line Borrowing, (b) the occurrence of an Event
of Default or (c) the Swing Line Maturity Date.
(b) If Borrowers fail to repay any Swing Line Borrowing within five (5)
Business Days after the date of such Swing Line Borrowing (and in any event
upon the earlier to occur of an Event of Default, the Termination Date, or
the date on which the Commitment is canceled in full), Agent shall timely
notify each Bank of such failure and of the date and amount not paid. No
later than the close of business on the date such notice is given (if such
notice was given prior to 12:00 noon (Fort Worth time) on any Business Day,
or, if made at any other time, on the next Business Day following the date of
such notice), each Bank shall be deemed to have irrevocably and
unconditionally purchased and received from Wells Fargo an undivided interest
and participation in such Swing Line Borrowing to the extent of such Bank's
Pro Rata Part, and each Bank shall make available to Wells Fargo in
immediately available funds such Bank's Pro Rata Part of such unpaid amount.
All such amounts payable by any Bank shall include interest thereon from the
date on which such payment is payable by such Bank to, but not including, the
date such amount is paid by such Bank to Agent, at the Federal Funds Rate.
If such Bank does not promptly pay such amount upon Agent's demand therefor,
and until such time as such Bank makes the required payment, Wells Fargo
shall be deemed to continue to have outstanding a Swing Line Borrowing in the
amount of such unpaid obligation. Each payment by Borrowers of all or any
part of any Swing Line Borrowing shall be paid to Agent for the ratable
benefit of Wells Fargo and those Banks who have funded their participations
in such Swing Line Debt under this Section 2.03(b); PROVIDED THAT, with
respect to any such participation, all interest accruing on the Swing Line
Debt to which such participation relates prior to the date of funding such
participation shall be payable solely to Wells Fargo for its own account.
2.04. INTEREST RATE. The unpaid principal of each Floating Base
Advance except Borrowings under the Swing Line Facility shall bear interest
from the date of advance until paid at a rate per annum which shall from day
to day, be equal to the lesser of: (a) the Floating Base Rate or (b) the
Maximum Rate. The unpaid principal of each Eurodollar Advance except
Borrowings under the Swing Line Facility shall bear interest from the date of
Advance until paid at a rate per annum which shall be equal to the lesser of
(a) the sum of the Adjusted Interbank Rate for the applicable Interest
Period, plus the Applicable Margin in effect from time to time or (b) the
Maximum Rate. Borrowers shall notify Agent of any change in the Ratings and
the Applicable Margin within one (1) Business Day of any such change. The
unpaid principal of each Swing Line Borrowing shall bear interest at then
Adjusted Interbank Rate applicable to a one (1) month Interest Period as
determined by Wells Fargo on the date of the Swing Line Borrowing, plus the
Applicable Margin; PROVIDED THAT at any time after any Bank is deemed to have
purchased pursuant to Section 2.03(b) a participation in any Swing Line
Borrowing, such Swing Line Borrowing shall bear interest at the Past Due
Rate. All past due principal of, and to the extent permitted by applicable
law, interest on the Notes shall bear interest at the Past Due Rate.
Notwithstanding the foregoing, the unpaid principal balance of the Notes
shall bear interest as provided in Section 3.04(c) hereof, upon the
occurrence of the circumstances described in such section.
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ARTICLE III
NOTES AND INTEREST RATE PAYMENTS
3.01. PROMISSORY NOTES. The Advances under Section 2.02(a) and Section
2.02(b) hereof by a Bank shall be evidenced by a promissory note (each a
"Note" and collectively, the "Notes") of Borrowers, which Note shall (i) be
dated the date hereof, (ii) be in the amount of such Bank's Commitment, (iii)
be payable to the order of such Bank at the office of Agent,
(iv) bear interest in accordance with Section 2.04 hereof, and (v) be in the
form of EXHIBIT "A" attached hereto with blanks appropriately completed in
conformity herewith. Notwithstanding the principal amount of any Bank's Note
as stated on the face thereof, the amount of principal actually owing on such
Note at any given time shall be in the aggregate of all Advances theretofore
made to Borrowers hereunder, less all payments of principal theretofore
actually received hereunder by Bank. Each Bank is authorized, but is not
required, to endorse on the schedule attached to its Note appropriate
notations evidencing the date and amount of each Advance as well as the
amount of each payment made by Borrowers hereunder.
3.02. PRINCIPAL PAYMENTS ON NOTES. Subject to Article X, the unpaid
principal amount of each Note (other than the Swing Line Note), and all
accrued but unpaid interest thereon, shall be due and payable on the
Termination Date and the unpaid principal balance of the Swing Line Note
shall be due and payable on the Swing Line Maturity Date.
3.03. PREPAYMENTS.
(a) OPTIONAL PREPAYMENTS. Borrowers may prepay the principal of any
Floating Base Advance upon one (1) Business Day's prior notice without
premium or penalty, and of any Eurodollar Advance upon three (3) Business
Days prior notice; provided, however, that (i) each prepayment of less than
the full outstanding principal balance of the Notes shall be in an amount
equal to one hundred thousand dollars ($100,000.00) or an integral multiple
thereof, and (ii) if Borrowers shall prepay the principal of any Eurodollar
Advance on any date other than the last day of the Interest Period applicable
thereto, Borrowers shall make the payments required by Section 4.05 hereof.
(b) GENERAL PREPAYMENT PROVISIONS. Any prepayment of a Note
hereunder shall be (i) made together with interest accrued (to the date of
such prepayment) on the principal amount prepaid, and (ii) applied first to
accrued interest and then to principal.
3.04. PAYMENT OF INTEREST ON THE NOTES.
(a) REVOLVING CREDIT NOTES. The interest on the unpaid principal
amount of each Floating Base Advance under each Note shall be payable monthly
as it accrues on the first Business Day of each month commencing November 1,
1997, and on the Termination Date. Interest on the unpaid principal amount of
each Eurodollar Advance under each Note shall be payable on the last day of
applicable Interest Period. Should any installment of interest on a Floating
Base Advance become due and payable on a day other than a Business Day, the
maturity thereof shall be extended to the next succeeding Business Day.
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(b) SWING LINE NOTE. The unpaid accrued interest on each advance
under the Swing Line Note shall be payable five (5) days from the date of
each such advance.
(c) RECAPTURE RATE. If, on any interest payment date, Agent does not
receive interest (for the account of any Bank) on such Bank's Note computed
(as if no Maximum Rate limitations were applicable) at the applicable
contract rate described herein, because the applicable contract rate exceeds
or has exceeded the Maximum Rate, then Borrowers shall, upon the written
demand of Agent or such Bank, pay to such Bank, in addition to interest
otherwise required hereunder, on each interest payment date thereafter, the
Excess Interest Amount (hereinafter defined) calculated as of such later
interest payment date; provided, however, that in no event shall Borrowers be
required to pay, for any appropriate computation period, interest at a rate
exceeding the Maximum Rate effective during such period. The term "Excess
Interest Amount" shall mean, on any date, with respect to the Note of any
Bank, the amount by which (a) the amount of all interest which would have
accrued prior to such date on the principal of such Note (had the applicable
contract rate(s) described herein at all times been in effect, without
limitation by the Maximum Rate) EXCEEDS (b) the aggregate amount of interest
actually paid to such Bank on such Note on or prior to such date.
3.05. CALCULATION OF INTEREST RATES. Interest on the unpaid principal
of each Eurodollar Advance shall be calculated on the basis of the actual
days elapsed in a year consisting of 360 days. Interest on the unpaid
principal of each Floating Base Advance shall be calculated on the basis of
the actual days elapsed in a year consisting of 365/366 days.
3.06. MANNER AND APPLICATION OF PAYMENTS. All payments of principal
of, and interest on, any Note shall be made by Borrowers to Agent before
11:00 a.m. (Fort Worth time), in immediately available Federal funds or such
other immediately available funds at Agent's principal banking office in Fort
Worth, Texas or to Agent's office in San Francisco, California wired as
follows: ABA No. 12100248, Account No. 4518151378, Reference: AmeriCredit -
Syndicated Credit Agreement. Should the principal of, or any installment of
the principal or interest on, any Note, become due and payable on a day other
than a Business Day or a Eurodollar Business Day, as the case may be, the
maturity thereof shall be extended to the next succeeding Business Day or
Eurodollar Business Day, as the case may be. Each payment received by the
Agent hereunder for the account of a Bank shall be promptly distributed by
Agent to such Bank. All payments made on any Note shall be credited, to the
extent of the amount thereof, in the following manner: (i) first, against
the amount of interest accrued and unpaid on the Note as of the date of such
payment; (ii) second, against all principal (if any) due and owing on the
Note; (iii) third, as a prepayment of outstanding Floating Base Advances
under the Note; and (iv) fourth, as a prepayment of outstanding Eurodollar
Advances under the Note. Subject to the foregoing, payments and prepayments
of principal of the Notes shall be applied to such outstanding Floating Base
Advances and Eurodollar Advances under the Notes as Borrowers shall select;
provided, however, that Borrowers shall select Floating Base Advances and
Eurodollar Advances to be repaid in a manner designated to minimize the
Consequential Loss, if any, resulting from such payments; and provided
further that, if Borrowers shall fail to select the Floating Base Advances
and Eurodollar Advances to which such payments are to be applied, or if an
Event of Default has occurred and is continuing at the time of such payment,
then Agent shall apply the payment first to Floating Base Advances and then
to Eurodollar Advances.
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3.07. PRO RATA TREATMENT. Each payment received by Agent hereunder for
account of Banks or any of them on the Notes shall be distributed to each
Bank entitled to share in such payment, PRO RATA in proportion to the then
unpaid principal balance of the Note of each Bank. Unless Agent shall have
received notice from Borrowers prior to the date on which any payment is due
to Banks hereunder that Borrowers will not make such payment in full, Agent
may assume that Borrowers have made such payment in full to Agent on such
date and Agent may, in reliance upon such assumption, cause to be distributed
to each Bank on such due date an amount equal to the amount then due such
Bank. If and to the extent Borrowers shall not have so made such payment in
full to Agent, each Bank shall repay to Agent forthwith on demand such amount
distributed to such Bank together with interest thereon, for each day from
the date such amount is distributed to such Bank until the date such Bank
repays such amount to Agent, at the Federal Funds Rate.
3.08. LENDING OFFICE. Each Bank may (a) designate its principal office
or a foreign branch, subsidiary or affiliate of such Bank as its lending
office (and the office to whose accounts payments are to be credited) for any
Eurodollar Advance, (b) designate its principal office or a domestic branch,
subsidiary or affiliate as its lending office (and the office to whose
accounts payments are to be credited) for any Floating Base Advance and (c)
change its lending offices from time to time by notice to Agent and
Borrowers; provided, however, no Bank shall designate a foreign branch
without the consent of Borrowers if such designation would subject interest
payments hereunder to withholding for Taxes. In such event, such Bank shall
continue to hold the Note evidencing its loans for the benefit and account of
such foreign branch, subsidiary or affiliate. Each Bank shall be entitled to
fund all or any portion of its Revolving Credit Loan in any manner that it
deems appropriate, but for the purposes of this Agreement such Bank shall,
regardless of such Bank's actual means of funding, be deemed to have funded
its Loan in accordance with the interest option from time to time selected by
Borrowers for such Borrowing.
3.09. TAXES.
(a) Any and all payments by Borrowers hereunder or under the Notes
shall be made, in accordance with Section 3.06, free and clear of and without
deduction for any and all present or future Taxes, excluding, in the case of
each Bank and Agent, taxes imposed on its income, and franchise taxes imposed
on it, by the jurisdiction under the laws of which such Bank or Agent (as the
case may be) is organized or is or should be qualified to do business or any
political subdivision thereof and, in the case of each Bank Taxes imposed on
its income and franchise taxes imposed on it by the jurisdiction of such
Bank's lending office or any political subdivision thereof. If Borrowers
shall be required by law to deduct any Taxes (i.e., Taxes for which any
Borrower is responsible under the preceding sentence) from or in respect of
any sum payable hereunder or under any Note to any Bank or Agent, (i) the sum
payable shall be increased as may be necessary so that after making all
required deductions (including deductions applicable to additional sums
payable under this Section 3.09) such Bank or Agent receives an amount equal
to the sum it would have received had no such deductions been made, (ii)
Borrowers shall make such deductions and (iii) Borrowers shall pay the full
amount deducted to the relevant taxation authority or other authority in
accordance with applicable law.
(b) In addition, Borrowers agree to pay any present or future stamp
or documentary taxes or any other excise or property taxes, charges or
similar levies which arise from any
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payment made hereunder or under the Loan Documents from the execution,
delivery, or registration of, or otherwise with respect to, this Agreement or
the other Loan Documents (hereinafter referred to as "Other Taxes").
(c) Borrowers will indemnify each Bank and Agent for the full amount
of Taxes or Other Taxes (including, without limitation, any Taxes or Other
Taxes imposed by any jurisdiction on amounts payable under this Section 3.09)
paid by such Bank or Agent (as the case may be) or any liability (including
penalties and interest) arising therefrom or with respect thereto, whether or
not such Taxes or Other Taxes were correctly or legally asserted. This
indemnification shall be made within thirty (30) days from the date such Bank
or Agent makes written demand therefor.
(d) Within thirty (30) days after the date of any payment of Taxes,
Borrowers will furnish to Agent, at its address referred to in Section 13.02,
the original or a certified copy of a receipt evidencing payment thereof.
(e) Without prejudice to the survival of any other agreement of
Company hereunder, the agreements and obligations of Borrowers contained in
this Section 3.09 shall survive the payment in full of the Obligation and the
termination of the Commitments.
(f) Each Bank agrees to use good faith efforts to carry out its
obligations under this Loan Agreement in such a way as to reduce the amount
of Taxes attributable to the Revolving Credit Loans, including the use of a
different lending office, as long as in the good faith opinion of such Bank
such actions would not have a material adverse effect upon it.
3.10. SHARING OF PAYMENTS. If any Bank shall obtain any payment
(whether voluntary, involuntary, through the exercise of any right of
set-off, or otherwise) on account of the Advances made by it in excess of its
ratable share of payments on account of the Advances made by all Banks, such
Bank shall forthwith purchase from the other Banks such participations in the
Advances made by them as shall be necessary to cause such purchasing Bank to
share the excess payment ratably with each of them, PROVIDED, HOWEVER, that
if all or any portion of such excess payment is thereafter recovered from
such purchasing Bank, such purchase from each Bank shall be rescinded and
such other Banks shall repay to the purchasing Bank the purchase price to the
extent of such recovery together with an amount equal to such other Bank's
ratable share (according to the proportion of (i) the amount of such Bank's
required repayment, to (ii) the total amount so recovered from the purchasing
Bank) of any interest or other amount paid or payable by the purchasing Bank
in respect of the total amount recovered. Borrowers agree that any Bank so
purchasing a participation from another Bank pursuant to this Section 3.10
may, to the fullest extent permitted by law exercise all of its rights of
payment (including the right of set-off) with respect to such participation
as fully as if such Bank were the direct creditor of Borrowers in the amount
of such participation.
3.11. JOINT AND SEVERAL LIABILITY. The Borrowers shall be liable for
all amounts due to the Agent and to the Banks under this Loan Agreement,
regardless of which the Borrowers actually receives the Revolving Credit
Loans or other extensions of credit hereunder or the amount of such Revolving
Credit Loans received or the manner in which the Agent or the Banks account
for such Revolving Credit Loans or other extensions of credit on their books
and records. The Obligations with respect to Revolving Credit Loans and with
respect to each Swing Line Borrowing made to a Borrower, and the Obligations
of a Borrower arising as a result of
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the joint and several liability of the Borrower hereunder, with respect to
Revolving Credit Loans or a Swing Line Borrowing made to the other Borrowers,
shall be separate and distinct obligations, but all such Obligations shall be
primary obligations of each of the Borrowers.
The Obligations arising as a result of the joint and several liability
of the Borrowers hereunder with respect to Revolving Credit Loans or other
extensions of credit made to the other Borrowers shall, to the fullest extent
permitted by law, be unconditional irrespective of (i) the validity or
enforceability, avoidance or subordination of the Obligations of the other
Borrowers or of any promissory note or other document evidencing all or any
part of the Obligations of the other Borrowers, (ii) the absence of any
attempt to collect the Obligations from the other Borrowers, any other
guarantor, or any other security therefor, or the absence of any other action
to enforce the same, (iii) the waiver, consent, extension, forbearance or
granting of any indulgence by the Agent and the Banks with respect to any
provision of any instrument evidencing the Obligations of the other
Borrowers, or any part thereof, or any other agreement now or hereafter
executed by the other Borrowers and delivered to the Agent and the Banks,
(iv) the failure by the Agent and the Banks to take any steps to perfect and
maintain their security interest in, or to preserve their rights to, any
security or collateral for the Obligations of the other Borrowers, (v) the
Agent's or the Banks' election, in any proceeding instituted under the
Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy
Code, (vi) any borrowing or grant of a security interest by the other
Borrowers, as debtor-in-possession under Section 364 of the Bankruptcy Code,
(vii) the disallowance of all or any portion of the Agent's or the Banks'
claim(s) for the repayment of the Obligations of the other Borrowers under
Section 502 of the Bankruptcy Code, or (viii) any other circumstances which
might constitute a legal or equitable discharge or defense of a Guarantor or
of the other Borrowers. With respect to the Borrowers' Obligations arising as
a result of the joint and several liability of the Borrowers with respect to
Revolving Credit Loans or other extensions of credit made to the other
Borrowers, each Borrower waives, until the Obligations shall have been paid
in full and the Loan Agreement shall have been terminated, any right to
enforce any right of subrogation or any remedy which the Agent and the Banks
now have or may have hereafter have against the other Borrowers, any endorser
or any guarantor of all or any part of the Obligations, and any benefit of,
and any right to participate in, any security or collateral given to the
Agent or to the Banks to secure payment of the Obligations or any other
liability of the other Borrowers to the Agent and the Banks.
Upon any Event of Default, the Agent and the Banks may proceed directly
and at once, without notice, against any of the Borrowers to collect and
recover the full amount, or any portion of the Obligations, without first
proceeding against the other Borrowers or any other Person, or against any
security or collateral for the Obligations. The Borrowers consent and agree
that the Agent and the Banks shall be under no obligation to marshall any
assets in favor of the Borrowers or against or in payment of any or all of
the Obligations.
ARTICLE IV
SPECIAL PROVISIONS FOR EURODOLLAR LOANS
4.01. INADEQUACY OF EURODOLLAR LOAN PRICING. If with respect to an
Interest Period for any Eurodollar Borrowing including a Swing Line Borrowing:
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(i) Agent determines that, by reason of circumstances affecting the
Interbank Eurodollar market generally, deposits in Dollars (in
the applicable amounts) are not being offered to Banks in the
Interbank Eurodollar market for such Interest Period, or
(ii) Majority Banks advise Agent that the Interbank Offered Rate as
determined by Agent will not adequately and fairly reflect the
cost to such Banks of maintaining or funding the Eurodollar
Borrowing for such Interest Period,
then Agent shall forthwith give notice thereof to Borrowers, whereupon, until
Agent notifies Borrowers that the circumstances giving rise to such
suspension no longer exist, (a) the obligation of Banks to make Eurodollar
Advances shall be suspended and (b) Borrowers shall either (i) repay in full
the then outstanding principal amount of the Eurodollar Advances, together
with accrued interest thereon on the last day of the then current Interest
Period applicable to such Eurodollar Advances, or (ii) convert such
Eurodollar Advances to Floating Base Advances in accordance with Section
2.02(c) of this Loan Agreement on the last day of the then current Interest
Period applicable to each such Eurodollar Advance.
4.02. ILLEGALITY. If, after the date of this Loan Agreement, the
adoption of any applicable law, rule or regulation, or any change therein, or
any change in the interpretation or administration thereof by any
Governmental Authority, central bank or comparable agency charged with the
interpretation or administration thereof, or compliance by any Bank with any
request or directive (whether or not having the force of law) of any such
authority, central bank or comparable agency shall make it unlawful or
impossible for any Bank to make, maintain or fund its Eurodollar Advances,
and such Bank shall so notify Agent, Agent shall forthwith give notice
thereof to Banks and Borrowers. Before giving any notice pursuant to this
Subsection, such Bank shall designate a different Eurodollar lending office
if such designation will avoid the need for giving such notice and will not
be materially disadvantageous to such Bank (as determined in good faith by
such Bank). Upon receipt of such notice, the obligation of such Bank to make
Eurodollar Advances shall be suspended until receipt of notice from such Bank
that such circumstances giving rise to such suspension no longer exist and
Borrowers shall either (i) repay in full the then outstanding principal
amount of the Eurodollar Advance of such Bank, together with accrued interest
thereon, or (ii) convert such Eurodollar Advance to a Floating Base Advance,
in either case on (a) the last day of the then current Interest Period
applicable to such Eurodollar Advance if such Bank may lawfully continue to
maintain and fund such Eurodollar Advance to such day or (b) immediately if
such Bank may not lawfully continue to fund and maintain such Eurodollar
Advance to such day.
4.03. INCREASED COSTS FOR EURODOLLAR LOANS. If any Governmental
Authority, central bank or other comparable authority, shall at any time
after the date of this Agreement impose, modify or deem applicable any
reserve (including, without limitation, any imposed by the Board of Governors
of the Federal Reserve System but excluding any reserve requirement included
in the Eurodollar Reserve Requirement of such Bank), special deposit or
similar requirement against assets of, deposits with or for the account of,
or credit extended by, any Bank, or shall impose on any Bank (or its
Eurodollar lending office) or the Interbank Eurodollar market any other
condition affecting its Eurodollar Advances, any Note, or its obligation to
make Eurodollar Advances; and the result of any of the foregoing is to
increase the cost to such Bank of making or maintaining its Eurodollar
Advances, or to reduce the amount of any sum received or receivable by such
Bank under this Agreement or the Note by an amount reasonably deemed
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by such Bank to be material; then, within five (5) days after demand by such
Bank (with a copy to Agent), Borrowers shall pay to Agent, for the account of
such Bank, such additional amount or amounts as will compensate such Bank for
such increased cost or reduction. Each Bank will promptly notify Borrowers
and Agent of any event of which it has knowledge, occurring after the date
hereof, which will entitle such Bank to compensation pursuant to this
Section. A certificate of any Bank claiming compensation under this Section
and setting forth the additional amount or amounts to be paid to it hereunder
shall be conclusive in the absence of manifest error. If any Bank demands
compensation under this Section, then Borrowers may at any time, upon at
least five (5) Business Days' prior notice to such Bank through Agent, either
(i) repay in full the then outstanding Eurodollar Advances of such Bank,
together with accrued interest thereon to the date of prepayment or (ii)
convert such Eurodollar Advances to Floating Base Advances in accordance with
the provisions of this Loan Agreement; provided, however, that Borrowers
shall be liable for any Consequential Loss arising pursuant to such actions.
Each Bank agrees to use good faith efforts to carry out its obligations under
this Loan Agreement in such a way as to reduce the amount of Taxes
attributable to the Revolving Credit Loans, including the use of a different
lending office, as long as in the good faith opinion of such Bank such
actions would not have a material adverse effect upon it.
4.04. EFFECT ON INTEREST OPTIONS. If notice has been given pursuant to
Section 4.02 or Section 4.03 requiring the Eurodollar Advances of any Bank to
be repaid or converted, then unless and until such Bank notifies Borrowers
that the circumstances giving rise to such repayment no longer apply, all
Advances shall be Floating Base Advances. If such Bank notifies Borrowers
that the circumstances giving rise to such repayment no longer apply,
Borrowers may thereafter select Advances to be Eurodollar Advances in
accordance with Section 2.02(c) of this Loan Agreement.
4.05. PAYMENTS NOT AT END OF INTEREST PERIOD. If Borrowers make any
payment of principal with respect to any Eurodollar Borrowing on any day
other than the last day of an Interest Period applicable to such Eurodollar
Borrowing (including payments made pursuant to Sections 4.02 or 4.03), then
Borrowers shall reimburse each Bank on demand the Consequential Loss incurred
by it as a result of the timing of such payment. A certificate of each Bank
setting forth the basis for the determination of the amount of Consequential
Loss shall be delivered to Borrowers through Agent and shall, in the absence
of manifest error, be conclusive and binding. Any conversion of a Eurodollar
Borrowing to a Floating Base Borrowing on any day other than the last day of
the Interest Period for such Eurodollar Borrowing shall be deemed a payment
for purposes of this Section.
ARTICLE V
SECURITY
5.01 LIENS AND SECURITY INTERESTS. The Obligations and the Notes
shall be secured by a first priority security interest in all Finance
Contracts evidencing Indirect Loans (except Finance Contracts subject to a
Securitization or Additional Warehouse Facility) and proceeds of sale of
collateral securing Finance Contracts (except Finance Contracts subject to a
Securitization or Additional Warehouse Facility) and all promissory notes
payable to any of Borrowers.
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5.02 GUARANTY DOCUMENTS. To secure the Obligations and the Notes,
each of the Guarantors shall execute and deliver to Agent the Guaranty
Agreements.
ARTICLE VI
CONDITIONS PRECEDENT
6.01. INITIAL ADVANCES. The obligation of each Bank to make the
Revolving Credit Loan herein provided for and the initial Advances thereunder
is subject to the condition precedent that, on or before the date of such
Advance, Agent shall have received for each Bank the following, each dated
the date of such Advance, in form and substance satisfactory to Agent and
such Bank:
(a) REVOLVING CREDIT NOTES. A duly executed promissory note, drawn
to the order of each Bank, in the form of EXHIBIT A attached hereto with
appropriate insertions.
(b) SWING LINE NOTE. The duly executed Swing Line Note drawn to the
order of Wells Fargo Bank (Texas), National Association in form satisfactory
to Wells Fargo.
(c) SECURITY AGREEMENT. Security Agreement executed by Borrowers
covering all now existing and hereafter arising Finance Contracts evidencing
Indirect Loans except Finance Contracts subject to a Securitization or an
Additional Warehouse Facility.
(d) FINANCING STATEMENTS. Financing statements executed by each of
Borrowers covering all now existing and hereafter arising Finance Contracts
evidencing Indirect Loans except Finance Contracts subject to a
Securitization or an Additional Warehouse Facility.
(e) GUARANTY AGREEMENT. The Guaranty Agreement in the form of
EXHIBIT B executed by AmeriCredit Premium Finance, Inc. and ACF Investment
Corp.
(f) AGENT'S FEE AGREEMENT. Agent's fee agreement between Borrowers
and Agent and the agent's fee payable to Agent.
(g) BORROWING BASE. A borrowing base certificate satisfying the
requirements of Section 8.01.
(h) ARTICLES OF INCORPORATION OF BORROWERS. A copy of the Articles
of Incorporation of each of Borrowers and all amendments thereto.
(i) BYLAWS OF BORROWERS. A certified copy of the bylaws of each of
Borrowers.
(j) RESOLUTIONS OF BORROWERS. Resolutions of each of Borrowers
authorizing the execution of this Loan Agreement and each of the other Loan
Documents duly adopted by the Board of Directors of each of Borrowers and
accompanied by a certificate of the Secretary of Company stating that such
resolutions are true and correct, have not been altered or repealed and are
in full force and effect.
(k) INCUMBENCY CERTIFICATE OF BORROWERS. An incumbency certificate
with respect to each of Borrowers executed by the appropriate officers of
such Borrower.
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(l) CERTIFICATES OF EXISTENCE AND ACCOUNT STATUS FOR BORROWERS. A
current certificate of existence and good standing from the state of
incorporation of each of Borrowers and a current certificate of account
status from the Comptroller of Public Accounts of the State of Texas.
(m) AUTHORITY TO TRANSACT BUSINESS. Certificate evidencing the
authority of each of Borrowers to conduct or transact business in the State
of Texas and in all other states in which any of them conducts or transacts
business.
(n) ARTICLES OF INCORPORATION OF THE GUARANTORS. A copy of the
Articles of Incorporation of each of the Guarantors and all amendments
thereto.
(o) BYLAWS OF EACH GUARANTOR. A certified copy of the bylaws of
each of the Guarantors.
(p) RESOLUTIONS OF EACH GUARANTOR. Resolutions of each one of the
Guarantors approving the execution of the Guaranty Agreement duly adopted by
the Board of Directors of each of such Guarantors and accompanied by a
certificate of the Secretary of each of such Guarantors stating that such
resolutions are true and correct, have not been altered or repealed and are
in full force and effect.
(q) INCUMBENCY CERTIFICATES OF GUARANTORS. An incumbency
certificate with respect to each Guarantor executed by the appropriate
officers of each such Guarantor.
(r) CERTIFICATES OF EXISTENCE AND ACCOUNT STATUS FOR EACH GUARANTOR.
A current certificate of existence from the state of incorporation of each
Guarantor and a certificate of account status from the Comptroller of Public
Accounts of the State of Texas for each Guarantor.
(s) AUTHORITY TO TRANSACT BUSINESS. Certificate evidencing the
authority of each Guarantor to conduct or transact business in each state in
which each such Guarantor conducts or transacts business.
(t) OPINION OF COUNSEL. An executed opinion of counsel to Borrowers
and each of the Guarantors.
(u) LOAN ORIGINATION FEES. The loan origination fees described in
Section 2.01(d).
(v) FINANCIAL STATEMENT. Audited financial statement of Company for
its fiscal year ended June 30, 1997, together with an unqualified opinion
from a recognized accounting firm of national standing.
(w) FIELD EXAMINATION. Field examination of collateral conducted by
Agent which is satisfactory to Agent and Banks.
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6.02. ALL ADVANCES. The obligations of each Bank to make any Advance
under this Loan Agreement (including the initial Advance) shall be subject to
the following conditions precedent:
(a) NO DEFAULTS. As of the date of the making of such Advance,
there exists no Event of Default or event which with notice or lapse of time
or both could constitute an Event of Default.
(b) COMPLIANCE WITH LOAN AGREEMENT. Borrowers shall have performed
and complied in all material respects with all agreements and conditions
contained herein and in the Loan Documents which are required to be performed
or complied with by Borrowers before or at the date of such Advance or
conversion.
(c) REQUEST FOR BORROWING. In the case of any Borrowing, Agent shall
have received from Borrowers a Request for Borrowing in the form of EXHIBIT
"C", EXHIBIT "D" or EXHIBIT "E" attached hereto, dated as of the date of such
Advance and signed by an authorized officer of the Borrowers, all of the
statements of which shall be true and correct, certifying that, as of the
date thereof, (i) all of the representations and warranties of Borrowers
contained in this Loan Agreement and each of the Loan Documents executed by
Borrowers are true and correct, (ii) no event has occurred and is continuing,
or would result from the Advance, which constitutes an Event of Default or
which, with the lapse of time or giving of notice or both, would constitute
an Event of Default, and (iii) such other facts as Agent may reasonably
request.
(d) NO MATERIAL ADVERSE CHANGE. As of the date of making such
Advance, no change has occurred in the business or financial condition of the
Company and its Subsidiaries on a Consolidated basis as reflected on the
financial statement of Company for its fiscal year ended June 30, 1997 which
has caused or could cause a Material Adverse Effect.
(e) REPRESENTATIONS AND WARRANTIES. The representations and
warranties contained in Article VII (other than the representations and
warranties contained in Section 7.07) hereof and in each of the Loan
Documents shall be true and correct on the date of making of such Advance,
with the same force and effect as though made on and as of that date.
(f) BANKRUPTCY PROCEEDINGS. No proceeding or case under the United
States Bankruptcy Code shall have been commenced by or against any of
Borrowers or any Guarantor.
(g) FINANCING STATEMENTS. If requested and prepared by Agent,
Borrowers shall have executed and delivered to Agent financing
statements covering all Finance Contracts evidencing Indirect Loans
except Finance Contracts subject to (i) a Securitization or (ii) an
Additional Warehouse Facility.
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ARTICLE VII
REPRESENTATIONS AND WARRANTIES
To induce Banks to make the Revolving Credit Loans and the Swing Line
Loan, Borrowers represent and warrant to Banks that:
7.01. ORGANIZATION AND GOOD STANDING OF BORROWERS. Each of Borrowers
is a corporation duly organized and existing in good standing under the laws
of the state of its incorporation, is duly qualified as a foreign corporation
and in good standing in all states in which the failure to so qualify would
have a Material Adverse Effect and has the corporate power and authority to
own its properties and assets and to transact the business in which it is
engaged and is or will be qualified in those states wherein it will transact
business in the future and where the failure to so qualify would have a
Material Adverse Effect.
7.02. ORGANIZATION AND GOOD STANDING OF THE GUARANTORS. Each of the
Guarantors is a corporation duly organized and existing in good standing
under the laws of the state of its incorporation, is duly qualified as a
foreign corporation and in good standing in all states in which the failure
to so qualify would have a Material Adverse Effect and has the corporate
power and authority to own its properties and assets and to transact the
business in which it is engaged and is or will be qualified in those states
wherein it will transact business in the future and where the failure to so
qualify would have a Material Adverse Effect.
7.03. AUTHORIZATION AND POWER. Each of Borrowers has the corporate
power and requisite authority to execute, deliver and perform this Loan
Agreement and the other Loan Documents to be executed by such Borrower; each
of Borrowers is duly authorized to, and has taken all corporate action
necessary to authorize such Borrower to, execute, deliver and perform this
Loan Agreement, the Notes and such other Loan Documents and is and will
continue to be duly authorized to perform this Agreement, the Notes and such
other Loan Documents. Each of the Guarantors has the corporate power and
requisite authority to execute, deliver and perform the Guaranty Agreement.
7.04. NO CONFLICTS OR CONSENTS. Neither the execution and delivery of
this Loan Agreement, the Notes, the Guaranty Agreement or the other Loan
Documents, nor the consummation of any of the transactions herein or therein
contemplated, nor compliance with the terms and provisions hereof or with the
terms and provisions thereof, will contravene or materially conflict with any
provision of law, statute or regulation to which any of Borrowers or any of
the Guarantors is subject or any judgment, license, order or permit
applicable to any of Borrowers or any of the Guarantors, or any indenture,
loan agreement, mortgage, deed of trust, or other agreement or instrument to
which any of Borrowers or any of the Guarantors is a party or by which any of
Borrowers or any of the Guarantors may be bound, or to which any of Borrowers
or any of the Guarantors may be subject, or violate any provision of the
Charter or Bylaws of any of Borrowers or any of the Guarantors. No consent,
approval, authorization or order of any court or governmental authority or
third party is required in connection with the execution and delivery by any
of Borrowers or any of the Guarantors of the Loan Documents or to consummate
the transactions contemplated hereby or thereby.
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7.05. ENFORCEABLE OBLIGATIONS. This Loan Agreement, the Notes, the
Security Agreement, the Guaranty Agreement and the other Loan Documents are
the legal and binding obligations of the Borrowers and/or Guarantors parties
thereto, enforceable against such parties in accordance with their respective
terms, except as limited by bankruptcy, insolvency or other laws of general
application relating to the enforcement of creditors' rights.
7.06. NO LIENS. Except for Permitted Liens, all of the properties and
assets of Borrowers and their Subsidiaries are free and clear of all
mortgages, liens, encumbrances and other adverse claims of any nature, and
such corporation has and will have good and marketable title to such
properties and assets.
7.07. FINANCIAL CONDITION. Company has delivered to Agent copies of
the Consolidated balance sheet of Company and its Subsidiaries as of June 30,
1997, and the related consolidated statements of income, shareholders' equity
and cash flows for the period ended such date; such financial statements are
true and correct in all material respects, fairly present the financial
condition of Company and its Subsidiaries as of such date and have been
prepared in accordance with Generally Accepted Accounting Principles applied
on a basis consistent with that of prior periods; as of the date hereof,
there are no obligations, liabilities or indebtedness (including contingent
and indirect liabilities and obligations or unusual forward or long-term
commitments) of Company and its Subsidiaries which are (separately or in the
aggregate) material and are not reflected in such financial statements or
disclosed in writing to Agent; no changes having a Material Adverse Effect
have occurred in the financial condition or business of any Borrower since
June 30, 1997.
7.08. FULL DISCLOSURE. There is no material fact that Borrowers have
not disclosed to Agent and Banks which could have a Material Adverse Effect.
Neither the financial statements referred to in Section 7.07 hereof, nor any
certificate or statement delivered herewith or heretofore by any of Borrowers
to Banks in connection with negotiation of this Loan Agreement, contains any
untrue statement of a material fact or omits to state any material fact
necessary to keep the statements contained herein or therein from being
misleading in any material respect.
7.09. NO DEFAULT. No event has occurred and is continuing which
constitutes an Event of Default or which, with the lapse of time or giving of
notice or both, would constitute an Event of Default.
7.10. NO LITIGATION. Except as described in EXHIBIT F attached hereto,
there are no actions, suits or legal, equitable, arbitration or
administrative proceedings pending, or to the knowledge of Borrowers
threatened, against any of Borrowers or any of the Guarantors that could
reasonably be expected to, if adversely determined, have a Material Adverse
Effect.
7.11. REGULATORY DEFECTS. As of the date hereof, Borrowers have
advised Banks, in writing, of all Regulatory Defects of which any of
Borrowers has been advised or has knowledge.
7.12. USE OF PROCEEDS; MARGIN STOCK. The proceeds of the Revolving
Credit Loans will be used by the Borrowers and the Guarantors solely for
acquiring Finance Contracts and general corporate purposes of AmeriCredit
Corp., AmeriCredit Financial Services, Inc. and AmeriCredit Operating Co.,
Inc. None of such proceeds will be used for the purpose of purchasing or
carrying any "margin stock" as defined in Regulation U or G of the Board of
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Governors of the Federal Reserve System (12 C.F.R. Part 221 and 207), or for
the purpose of reducing or retiring any indebtedness which was originally
incurred to purchase or carry a margin stock or for any other purpose which
might constitute this transaction a "purpose credit" within the meaning of
such Regulation U or G. No Borrower is engaged in the business of extending
credit for the purpose of purchasing or carrying margin stocks. No Borrower
nor any Person acting on behalf of Borrowers has taken or will take any
action which might cause the Notes or any of the other Loan Documents,
including this Loan Agreement, to violate Regulations U or G or any other
regulations of the Board of Governors of the Federal Reserve System or to
violate Section 7 of the Securities Exchange Act of 1934 or any rule or
regulation thereunder, in each case as now in effect or as the same may
hereinafter be in effect. None of Borrowers own any "margin stock" except
for that described in the financial statements referred to in Section 7.07
hereof and, as of the date hereof, the aggregate value of all "margin stock"
owned by Borrowers and their Subsidiaries does not exceed 25% of the
aggregate value of all of the assets of Company and its Subsidiaries.
7.13. NO FINANCING OF CORPORATE TAKEOVERS. Except as permitted by
Section 9.09, no proceeds of the Revolving Credit Loans will be used to
acquire any security in any transaction which is subject to Section 13 or 14
of the Securities Exchange Act of 1934, including particularly (but without
limitation) Sections 13(d) and 14(d) thereof.
7.14. TAXES. Except as previously disclosed to Bank, all tax returns
required to be filed by each of Borrowers and their Subsidiaries in any
jurisdiction have been filed or will be filed prior to the date on which the
tax payable with respect to such return will become delinquent and all taxes
(including mortgage recording taxes), assessments, fees and other
governmental charges upon any of Borrowers or any of their Subsidiaries or
upon any of their respective properties, income or franchises have been paid
prior to the time that such taxes could give rise to a lien thereon. To the
best of each Borrower's knowledge, there is no proposed tax assessment
against any of Borrowers except as disclosed to Banks.
7.15. PRINCIPAL OFFICE, ETC. The principal office, chief executive
office and principal place of business of each of Borrowers is at 200 Bailey
Avenue, Fort Worth, Tarrant County, Texas 76107, and Borrowers maintain their
principal records and books at 4100 International Plaza, Overton Center II,
Suite 600, Fort Worth, Texas 76109.
7.16. ERISA. (a) No Reportable Event has occurred and is continuing
with respect to any Plan; (b) PBGC has not instituted proceedings to
terminate any Plan; (c) neither the Borrowers, any member of the Controlled
Group, nor any duly appointed administrator of a Plan (i) has incurred any
liability to PBGC with respect to any Plan other than for premiums not yet
due or payable or (ii) has instituted or intends to institute proceedings to
terminate any Plan under Section 4041 or 4041A of ERISA or withdraw from any
Multi-Employer Pension Plan (as that term is defined in Section 3(37) of
ERISA); and (d) each Plan of Company or its Subsidiaries has been maintained
and funded in all material respects in accordance with its terms and with all
provisions of ERISA applicable thereto.
7.17. COMPLIANCE WITH LAW. Except as described on EXHIBIT G, Company
and each of its Subsidiaries are in compliance in all material respects with
all laws, rules, regulations, ordinances, orders and decrees which are
applicable to Company, any of its Subsidiaries or any of their respective
properties or business. Neither Company nor any Subsidiary has been notified
by any Governmental Authority that Company or any Subsidiary has failed to
comply
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with any such laws, rules, regulations, orders or decrees nor has Company or
any Subsidiary been notified of any Environmental Claim except as described
in EXHIBIT H.
7.18. GOVERNMENT REGULATION. No Borrower nor any of the Guarantors are
subject to regulation under the Public Utility Holding Company Act of 1935,
the Federal Power Act, the Investment Company Act of 1940, the Interstate
Commerce Act (as any of the preceding acts have been amended), or any other
law (other than Regulation X) which regulates the incurring by Company or any
of its Subsidiaries of indebtedness, including but not limited to laws
relating to common contract carriers or the sale of electricity, gas, steam,
water, or other public utility services.
7.19. INSIDER. Company is not, and no Person having "control" (as that
term is defined in 12 U.S.C. Section 375(b)(5) or in regulations promulgated
pursuant thereto) of Company is, an "executive officer", "director", or
"person who directly or indirectly or in concert with one or more persons
owns, controls, or has the power to vote more than 10% of any class of voting
securities" (as those terms are defined in 12 U.S.C. Section 375(b) or in
regulations promulgated pursuant thereto) of any Bank, of a bank holding
company of which any Bank is a subsidiary, or of any subsidiary of a bank
holding company of which Bank is a subsidiary, or of any bank at which Bank
maintains a correspondent account, or of any bank which maintains a
correspondent account with any Bank.
7.20. SUBSIDIARIES. Company directly owns all of the capital stock of
AmeriCredit Financial Services, Inc., AmeriCredit Operating Co., Inc.,
AmeriCredit Premium Finance, Inc. and ACF Investment Corp., in each case free
and clear from all liens, security interests, charges and encumbrances.
7.21. SOLVENCY. Excluding intercompany indebtedness, Company and each
of its Subsidiaries now have capital sufficient to carry on their businesses
and transactions and all business and transactions in which they are about to
engage, and for which they have projected, and are now solvent and able to
pay their debts as they mature and each of Company and its Subsidiaries now
owns property having a value, both at fair valuation and at present fair
saleable value greater than the amount required to pay its respective debts.
Excluding intercompany indebtedness and without giving effect to the Guaranty
Agreement, no Guarantor is "insolvent" on the date hereof (that is, the sum
of such Guarantor's absolute and contingent liabilities does not exceed the
fair market value of such Guarantor's assets). Each Guarantor has received
or will receive good and fair consideration for its liability and obligations
incurred in connection with the Guaranty Agreement, and the incurrence of its
liability under the Guaranty Agreement in return for such consideration may
reasonably be expected to benefit each Guarantor, directly or indirectly.
7.22. ENVIRONMENTAL MATTERS. Except as described in EXHIBIT "H"
attached hereto, none of the properties of Company or its Subsidiaries which
are presently owned has been used at any time during their ownership to
generate, manufacture, refine, transport, treat, store, handle, dispose,
transfer, produce, process, or in any manner deal with Hazardous Materials.
Except as described in EXHIBIT "H" attached hereto, there are no past,
pending or, to the best of Company's knowledge, threatened or potential
Environmental Claims against Company or any of its Subsidiaries or with
respect to any properties presently owned or controlled by Company or any of
its Subsidiaries. Except as described in EXHIBIT "H" attached hereto, there
are no underground storage tanks located on any of the properties presently
owned or
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controlled by Company or any of its Subsidiaries and, to Company's best
knowledge, there never have been any underground storage tanks located on any
of the properties presently owned or controlled by Company or any of its
Subsidiaries, and the Company has received no actual (as contrasted with
constructive) notification of any Environmental Claims relating to any
property contiguous to any property owned or controlled by Company or any of
its Subsidiaries.
7.23. ENDORSEMENT OF INDIRECT LOANS. Borrowers have endorsed all
Finance Contracts evidencing Indirect Loans in the manner specified in the
Security Agreement except Finance Contracts that are subject to a
Securitization.
7.24. REPRESENTATIONS AND WARRANTIES. Each Request for Borrowing shall
constitute, without the necessity of specifically containing a written
statement, a representation and warranty by Borrowers that no Event of Default,
or any event which with the giving of notice or lapse of time or both would
constitute, mature into or become an Event of Default, shall have occurred and
be continuing and that all representations and warranties contained in this
ARTICLE VII (other than in Section 7.07) or in any other Loan Document are true
and correct at and as of the date the Advance is to be made.
7.25. SURVIVAL OF REPRESENTATIONS, ETC. All representations and
warranties made herein are true and correct when made by Borrowers and shall
survive delivery of the Notes and the Guaranty Agreement and the making of the
Revolving Credit Loan and any investigation at any time made by or on behalf of
Agent or any Bank shall not diminish Agent or such Bank's right to rely thereon.
ARTICLE VIII
AFFIRMATIVE COVENANTS
So long as Banks have any commitment to make Advances hereunder and until
payment in full of the Notes and the Obligation, Borrowers agree and covenant
that Borrowers will (unless Majority Banks shall otherwise consent in writing):
8.01. BORROWING BASE CERTIFICATE. Within two (2) weeks after the
fifteenth and last days of each month and as provided on the Intercreditor
Agreement, Borrowers shall furnish to Agent a certificate in the form of EXHIBIT
"I" executed by the chief financial officer, treasurer or one of the vice
presidents of each of Borrowers reflecting in detail a computation of the
Revolving Credit Borrowing Base as of the fifteenth and last days of each month.
8.02. COMPLIANCE CERTIFICATES. Within thirty (30) days after the end
of each month, Borrowers shall deliver to Agent a certificate in the form of
EXHIBIT "J" executed by the chief financial officer, treasurer, or one of the
vice presidents of each of Borrowers stating that a review of its activities
during such month has been made under his supervision and that such Bo