UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-Q
(Mark One)
[X] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
For the quarterly period ended September 30, 1994
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
For the transition period from to
Commission file number 1-10667
AmeriCredit Corp.
(Exact name of registrant as specified in its charter)
Texas 75-2291093
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identifiation No.)
200 Bailey Avenue, Fort Worth, Texas 76107
(Address of principal executive offices)
(Zip Code)
(817) 332-7000
(Registrant's telephone number, including area code)
(Former name, former address and former fiscal year, if changed
sinced last report)
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by section 13 or 15(d) of the Securities Exchange Act
of 1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to
such filing requirements for the past 90 days. Yes X No
There were 28,756,673 shares of common stock, $.01 par value outstanding as
of November 11, 1994.
<PAGE>
AMERICREDIT CORP.
INDEX TO FORM 10-Q
Part I. FINANCIAL INFORMATION
Item 1. Financial Statements Page
Consolidated Balance Sheets -
September 30, 1994 and June 30, 1994. . . . . 3
Consolidated Income Statements -
Three Months Ended September 30,
1994 and 1993 . . . . . . . . . . . . . . . . 4
Consolidated Statements of
Cash Flows - Three Months Ended
September 30, 1994 and 1993 . . . . . . . . . 5
Notes to Consolidated Financial
Statements. . . . . . . . . . . . . . . . . . 6
Item 2. Management's Discussion and
Analysis of Financial Condition
and Results of Operations . . . . . . . . 8
Part II. OTHER INFORMATION
Item 1. Legal Proceedings . . . . . . . . . . . . 15
Item 6. Exhibits and Reports on Form 8-K. . . . . 15
SIGNATURE . . 16
<PAGE>
PART I - FINANCIAL INFORMATION
Item I. FINANCIAL STATEMENTS
AMERICREDIT CORP.
Consolidated Balance Sheets
(Unaudited, Dollars in Thousands)
<TABLE>
<CAPTION>
September 30, June 30,
1994 1994
------------- --------
<S> <C> <C>
ASSETS
Cash and cash equivalents $ 49 $ 15,756
Investment securities 19,470 26,506
Finance receivables, net 95,558 72,150
Property and equipment, net 5,451 5,345
Other assets 2,895 2,458
------- -------
Total assets $123,423 $122,215
======= =======
LIABILITIES AND SHAREHOLDERS' EQUITY
Liabilities:
Notes payable $ 347 $ 388
Accrued taxes and expenses 1,757 2,326
------- -------
Total liabilities 2,104 2,714
------- -------
Contingencies (Note 4)
Shareholders' equity:
Common stock, $.01 par value
per share; 120,000,000 shares
authorized; 31,761,533 and
31,757,333 shares issued,
respectively 318 318
Additional paid-in capital 183,605 183,588
Accumulated deficit ( 53,916) ( 55,717)
------- -------
130,007 128,189
Treasury stock, at cost
(3,008,360 shares) ( 8,688) ( 8,688)
------- -------
Total shareholders' equity 121,319 119,501
------- -------
Total liabilities and
shareholders' equity $123,423 $122,215
======= =======
</TABLE>
The accompanying notes are an integral part
of these consolidated financial statements
<PAGE>
AMERICREDIT CORP.
Consolidated Income Statements
(Unaudited, Dollars in Thousands, Except Per Share Data)
<TABLE>
<CAPTION>
Three Months Ended
September 30,
------------------
1994 1993
---- ----
<S> <C> <C>
Revenue:
Finance charge income $ 4,826 $ 2,896
Investment income 348 722
Other income 487 84
---------- ----------
5,661 3,702
Costs and expenses:
Operating expenses 3,121 2,244
Provision for losses 654 288
Interest expense 49 35
---------- ----------
3,824 2,567
---------- ----------
Income before income taxes 1,837 1,135
Provision for income taxes 36
---------- ----------
Net income $ 1,801 $ 1,135
========== ==========
Earnings per share $ .06 $ .04
========== ==========
Weighted average shares
and share equivalents 30,122,210 31,842,088
========== ==========
</TABLE>
The accompanying notes are an integral part
of these consolidated financial statements
<PAGE>
AMERICREDIT CORP.
Consolidated Statements of Cash Flows
(Unaudited, Dollars in Thousands)
<TABLE>
<CAPTION>
Three Months Ended
September 30,
------------------
1994 1993
---- ----
<S> <C> <C>
Cash flows from operating activities:
Net income $ 1,801 $ 1,135
Adjustments to reconcile net
income to net cash provided
by operating activities:
Depreciation and amortization 322 314
Provision for losses 654 288
Changes in assets and
liabilities:
Other assets ( 437) 106
Accrued taxes and expenses ( 569) ( 265)
------ ------
Net cash provided by
operating activities 1,771 1,578
------ ------
Cash flows from investing activities:
Purchases and originations of
finance receivables ( 38,272) ( 14,011)
Principal collections and recoveries
on finance receivables 14,210 10,341
Purchases of property and equipment ( 441) ( 53)
Proceeds from disposition of property
and equipment 13 61
Purchases of investment securities ( 6,779)
Proceeds from sales and maturities of
investment securities 7,036 6,831
Proceeds from sale of investment in
affiliate 11,300
------ ------
Net cash provided (used) by
investing activities ( 17,454) 7,690
------ ------
Cash flows from financing activities:
Payments on notes payable ( 41) ( 171)
Proceeds from issuance of
common stock 17 87
------ ------
Net cash used by financing
activities ( 24) ( 84)
------ ------
Net increase (decrease) in cash and
cash equivalents ( 15,707) 9,184
Cash and cash equivalents at
beginning of period 15,756 33,268
------ ------
Cash and cash equivalents at
end of period $ 49 $42,452
====== ======
</TABLE>
The accompanying notes are an integral part
of these consolidated financial statements
<PAGE>
AMERICREDIT CORP.
Notes to Consolidated Financial Statements
(Unaudited)
NOTE 1 - BASIS OF PRESENTATION
The accompanying consolidated financial statements include the accounts
of AmeriCredit Corp. and its wholly-owned subsidiaries ("the Company").
All significant intercompany accounts and transactions have been
eliminated in consolidation.
The consolidated financial statements as of September 30, 1994 and for
the periods ended September 30, 1994 and 1993 are unaudited, but in
management's opinion, include all adjustments, consisting only of normal
recurring adjustments, necessary for a fair presentation of the results
for such interim periods. The results for interim periods are not
necessarily indicative of results for a full year.
The interim period financial statements, including the notes thereto, are
condensed and do not include all disclosures required by generally
accepted accounting principles. Such interim period financial statements
should be read in conjunction with the Company's consolidated financial
statements which were included in the Company's 1994 Annual Report to
Shareholders.
<PAGE>
NOTE 2 - FINANCE RECEIVABLES
Finance receivables consist of the following (in thousands):
<TABLE>
<CAPTION> September 30, June 30,
1994 1994
------------- --------
<S> <C> <C>
Indirect consumer lending contracts:
Precomputed interest $ 75,860 $55,617
Simple interest 38,030 24,890
------- ------
113,890 80,507
Direct lending 4,683 8,467
Premium finance 6,613 6,631
------- ------
Total finance receivables 125,186 95,605
Less unearned finance charges
and fees ( 18,753) ( 14,125)
------- ------
Principal amount of finance
receivables 106,433 81,480
Less allowance for losses ( 10,875) ( 9,330)
------- ------
Finance receivables, net $ 95,558 $72,150
======= ======
</TABLE>
The Company's finance contracts typically provide for finance charges on
either a precomputed or simple interest basis. Precomputed interest
finance receivables include principal and unearned finance charges.
Simple interest finance receivables include principal only. All direct
lending and premium finance contracts are precomputed interest finance
receivables.
A summary of the allowance for losses is as follows (in thousands):
<TABLE>
<CAPTION> Three Months Ended
September 30,
------------------
1994 1993
---- ----
<S> <C> <C>
Balance at beginning of period $ 9,330 $12,581
Provision for losses 654 288
Acquisition fees on indirect
consumer lending contracts 2,340 939
Net charge-offs ( 1,449) ( 3,596)
------ ------
Balance at end of period $10,875 $10,212
====== ======
</TABLE>
<PAGE>
NOTE 3 - CREDIT AGREEMENT
In September 1994, the Company entered into a revolving credit agreement
with a group of banks under which the Company may borrow up to $75
million, subject to a defined borrowing base. No borrowings were
outstanding as of September 30, 1994. Borrowings under the credit
agreement will be collateralized by the indirect finance receivables
portfolio and will bear interest, based upon the Company's option, at
either the reference prime plus 1/2% or various market London Interbank
Offered Rates plus 2-1/4%. The Company is also required to pay an annual
commitment fee equal to 3/8% of the unused portion of the credit
agreement. The credit agreement, which expires in November 1995,
contains various restrictive covenants requiring certain minimum
financial ratios and results and placing certain limitations on the
incurrence of additional debt, capital expenditures and repurchase of
common stock.
NOTE 4 - CONTINGENCIES
Four lawsuits were filed against the Company, several of its current and
former officers and directors, and certain other defendants, alleging
violations of federal securities and other laws. The suits were
originally filed in July 1990, and in October 1991, the four lawsuits
were consolidated into one action. In May 1993, the U.S. District Court
for the Northern District of Texas, Dallas Division, dismissed with
prejudice all claims alleging violations of federal securities laws. The
plaintiffs' state law claims were dismissed for want of jurisdiction.
The plaintiffs appealed the dismissal to the Court of Appeals for the
Fifth Circuit. On August 8, 1994, the Court of Appeals for the Fifth
Circuit affirmed the U.S. District Court's dismissal of the lawsuit.
The Company is involved in other lawsuits arising in the normal course of
business. In the opinion of management, the resolution of these matters
will not have a material adverse effect on the Company's consolidated
financial position, results of operations or liquidity.
NOTE 5 - INCOME TAXES
The Company's effective income tax rate on income before income taxes
differs from the U.S. statutory tax rate as follows:
<PAGE>
<TABLE>
<CAPTION>
Three Months Ended
September 30,
------------------
1994 1993
---- ----
<S> <C> <C>
U.S. statutory tax rate 34% 34%
Utilization of net operating loss
carryforwards (34 ) (34 )
State income taxes 2
-- --
2% 0%
== ==
</TABLE>
At June 30, 1994, the Company has net operating loss carryforwards of
$52,000,000 for income tax reporting purposes which expire between 2007
and 2009 and an alternative minimum tax carryforward of $900,000 with no
expiration date.
NOTE 6 - SUPPLEMENTAL CASH FLOW INFORMATION
Cash payments for interest costs consist of the following (in thousands):
<TABLE>
<CAPTION> Three Months Ended
September 30,
------------------
1994 1993
---- ----
<S> <C> <C>
Interest costs (none capitalized) $49 $35
</TABLE>
2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS
RESULTS OF OPERATIONS
General
Since September 1992, the Company has been in the business of purchasing
finance contracts originated by franchised and independent car dealers,
generally referred to as indirect consumer lending. Since April 1993,
the Company has also financed insurance premiums for consumers purchasing
car insurance through independent insurance agents.
The Company previously engaged in the retail used car sales and finance
business. However, in connection with a restructuring, the Company
withdrew from the retail used car sales business effective December 31,
1992. The finance receivables originated in this previous business are
<PAGE>
referred to as the direct lending portfolio and are being liquidated over
time as the contracts are collected or charged-off.
Three Months Ended September 30, 1994 as compared to
----------------------------------------------------
Three Months Ended September 30, 1993
-------------------------------------
Revenue:
The Company's overall finance charge income consisted of the following
(in thousands):
<TABLE>
<CAPTION> Three Months Ended
September 30,
------------------
1994 1993
---- ----
<S> <C> <C> <C> <C>
Indirect consumer lending $4,227 88% $1,097 38%
Direct lending 250 5% 1,554 54%
Premium finance 349 7% 245 8%
----- --- ----- ---
$4,826 100% $2,896 100%
===== === ===== ===
</TABLE>
The increase in finance charge income for the indirect consumer lending
business is a result of growth in average net finance receivables
outstanding. The Company purchased $36.8 million of indirect loans
during the three months ended September 30, 1994, compared to $11.6
million during the three months ended September 30, 1993. The indirect
consumer lending portfolio was $95.9 million at September 30, 1994,
compared to $25.9 million at September 30, 1993. This growth resulted
from loan production at branches open during both periods as well as
expansion of the Company's loan production capacity. The Company
operated 20 branch offices as of September 30, 1994, compared to nine as
of September 30, 1993.
The decrease in direct lending finance charge income is due to
liquidation of the direct lending portfolio.
The Company's overall effective yield on its finance receivables
increased to 20.6% from 20.5% primarily as a result of higher finance
charge rates realized in the Company's indirect consumer lending
business. The effective yield on indirect consumer lending receivables
was 20.8% for the three months ended September 30, 1994, while the
effective yield on direct lending receivables was 16.6% for the same
period.
Investment income decreased as a result of lower average cash and cash
equivalents and investment securities balances for the three months ended
September 30, 1994. The Company's yield on its cash and cash equivalents
<PAGE>
and investment securities was 4.5% for the three months ended September
30, 1994 as compared to 3.8% for the three months ended September 30,
1993.
Other income for the three months ended September 30, 1994 included
$360,000 related to the Company's participation in certain joint ventures
which acquire and collect distressed receivables portfolios. These joint
ventures were formed during the second quarter of fiscal 1994.
Costs and Expenses:
Operating expenses as a percentage of average net finance receivables
outstanding decreased to 3.3% for the three months ended September 30,
1994 as compared to 4.0% for the three months ended September 30, 1993.
The ratio improved as a result of the Company's ability to leverage its
fixed overhead costs by growing its finance receivables portfolio. The
dollar amount of operating expenses increased by $877,000, or 39%
primarily due to the addition of branch offices and marketing
representatives.
The provision for losses increased to $654,000 as compared to $288,000.
Further discussion concerning the provison for losses is included under
the caption, "Finance Receivables".
<PAGE>
FINANCE RECEIVABLES
Net finance receivables represented 77.4% of the Company's total assets
at September 30, 1994. The following table presents certain data related
to the finance receivables portfolio (dollars in thousands):
<TABLE>
<CAPTION> September 30,
1994
--------------------------------------------
Indirect Direct Premium Total
--------------------------------------------
<S> <C> <C> <C> <C>
Gross finance
receivables $113,890 $4,683 $ 6,613 $125,186
Unearned finance
charges and fees ( 18,005) ( 293) ( 455) ( 18,753)
------- ----- ------ -------
Finance receivables
(principal amount) 95,885 4,390 6,158 106,433
Allowance for losses ( 9,787) ( 723) ( 365) ( 10,875)
------- ----- ------ -------
Finance receivables,
net $ 86,098 $3,667 $ 5,793 $ 95,558
======= ===== ====== =======
Number of outstanding
contracts 12,828 2,782 13,018 28,628
======= ===== ====== =======
Allowance for losses as
a percentage of finance
receivables (principal
amount) 10.2% 16.5% 5.9% 10.2%
======= ===== ====== ======
Average amount of
outstanding contract
(principal amount)
(in dollars) $ 7,475 $1,578 $ 473 $ 3,718
======= ===== ====== =======
</TABLE>
The Company provides financing in relatively high-risk markets, and
therefore, charge-offs and related losses are anticipated. The Company
records a periodic provision for losses as a charge to operations and a
related allowance for losses in the consolidated balance sheet as a
reserve against estimated future losses in the finance receivables
portfolio. In the indirect consumer lending business, the Company
typically purchases individual finance contracts for a non-refundable
acquisition fee on a non-recourse basis, and such acquisition fees are
also recorded in the consolidated balance sheet as an allowance for
losses. The Company reviews historical origination and charge-off
relationships, charge-off experience factors, collections information,
<PAGE>
delinquency reports, estimates of the value of the underlying collateral,
economic conditions and trends and other information in order to make the
necessary judgements as to the appropriateness of the periodic provision
for losses and the allowance for losses. Although the Company uses many
resources to assess the adequacy of the allowance for losses, there is no
precise method for accurately estimating the ultimate losses in the
finance receivables portfolio.
Indirect Finance Receivables:
The following is a summary of indirect consumer lending contracts which
are more than 60 days delinquent (dollars in thousands):
<TABLE>
<CAPTION>
September 30,
------------
1994 1993
---- ----
<S> <C> <C>
Principal amount of delinquent contracts $1,931 $313
Principal amount of delinquent contracts
as a percentage of total net indirect
finance receivables outstanding 2.0% 1.2%
</TABLE>
The following table presents charge-off data with respect to the
Company's indirect finance receivables portfolio (dollars in thousands):
<TABLE>
<CAPTION>
Three Months Ended
September 30,
------------------
1994 1993
---- ----
<S> <C> <C>
Net charge-offs $880 $144
Net charge-offs as a percentage
of average net indirect finance
receivables outstanding 1.1% .7%
</TABLE>
The Company recorded periodic provisions for losses as charges to
operations of $606,000 and $254,000 related to its indirect finance
receivables portfolio for the three months ended September 30, 1994 and
1993, respectively. The Company also accounts for acquisition fees on
indirect consumer lending contracts as additional allowances for losses.
The Company began its indirect consumer lending business in September
1992 and has grown its receivables portfolio to $95.9 million as of
September 30, 1994. The Company expects that its aggregate portfolio
delinquency and charge-offs will increase over time as its portfolio
<PAGE>
gains more maturity. Delinquency and charge-offs typically tend to occur
after a loan has been outstanding for several months. Accordingly, the
delinquency and charge-off data above is not necessarily indicative of
delinquency and charge-off experience that could be expected for a more
seasoned portfolio.
Direct Finance Receivables:
The following is a summary of direct lending contracts which are more
than three payments delinquent if payment terms are weekly, biweekly or
semi-monthly, and 60 days delinquent if payment terms are monthly
(dollars in thousands):
<TABLE>
<CAPTION>
September 30,
-----------------
1994 1993
---- ----
<S> <C> <C>
Number of delinquent contracts 262 716
Number of delinquent contracts
as a percentage of the total
number of contracts outstanding 9.4% 7.3%
Amount of delinquent contracts * $607 $3,164
Amount of delinquent contracts
as a percentage of total gross
direct finance receivables
outstanding * 13.0% 9.9%
</TABLE>
* Includes unearned finance charges
<PAGE>
The following table presents repossession and charge-off data with
respect to the Company's direct finance receivables portfolio:
<TABLE>
<CAPTION>
Three Months Ended
September 30,
------------------
1994 1993
---- ----
<S> <C> <C>
Repossessions and other
charge-offs 260 996
Repossessions and other
charge-offs as a percentage
of the average number
of contracts outstanding 7.4% 9.3%
Net charge-offs
(in thousands $ 450 $3,445
Average net charge-off $1,730 $3,459
Net charge-offs as a percentage
of average direct finance
receivables outstanding,
less unearned finance charges 7.5% 10.4%
</TABLE>
Net charge-offs as a percentage of the average direct finance receivables
outstanding has decreased as the portfolio has become more seasoned and
average outstanding contract balances have decreased. The Company did
not record any periodic provisions for losses related to its direct
finance receivables portfolio for the three months ended September 30,
1994 and 1993.
Premium Finance Receivables:
Premium finance loans made by the Company are collateralized by the
unearned premium value of the car insurance policies financed. If the
consumer defaults on the payment terms of the loan, the Company has the
right to cancel the insurance policy and obtain a refund of the unearned
premium from the insurance carrier. While the Company generally requires
a sufficient down payment and limits the terms of loans so that the
unearned premium value typically exceeds the outstanding principal
balance of the loan, charge-offs may still result from untimely policy
cancellations, short rate insurance premium refunds, non-refundable
policy fees, insurance company or agency insolvencies or other factors.
The Company recorded periodic provisions for losses of $48,000 and
$34,000 related to its premium finance receivables portfolio for the
three months ended September 30, 1994 and 1993, respectively.
<PAGE>
The following table presents charge-off data with respect to the
Company's premium finance receivables portfolio (dollars in thousands):
<TABLE>
<CAPTION>
Three Months Ended
September 30,
------------------
1994 1993
---- ----
<S> <C> <C>
Net charge-offs $119 $ 7
Net charge-offs as a percentage
of the average outstanding
amount of premium finance
receivables (principal amount) 1.9% .3%
</TABLE>
LIQUIDITY AND CAPITAL RESOURCES
The Company's cash flows are summarized as follows (in thousands):
<TABLE>
<CAPTION>
Three Months Ended
September 30,
------------------
1994 1993
---- ----
<S> <C> <C>
Operating activities $ 1,771 $1,578
Investing activities ( 17,454) 7,690
Financing activities ( 24) ( 84)
------ -----
Net increase (decrease) in
cash and cash equivalent ($15,707) $9,184
====== =====
</TABLE>
In addition to the net change in cash and cash equivalents shown above,
the Company also had net decreases in investment securities of $7,036,000
and $52,000 for the three months ended September 30, 1994 and 1993,
respectively. Such amounts are included as investing activities in the
above table.
The Company's primary source of cash has been collections and recoveries
on its finance receivables portfolio. The Company also received proceeds
from the sale of its interest in Pacific Automart Inc. of $11.3 million
in August 1993.
The Company's primary use of cash has been purchases and originations of
finance receivables. The Company entered the indirect consumer lending
business in September 1992 and has grown the indirect finance portfolio
to $95.9 million as of September 30, 1994. The Company operated 20
indirect consumer lending branches in fifteen states and had several
<PAGE>
marketing representatives as of September 30, 1994. The Company plans to
open ten additional consumer lending branches, add marketing
representatives and expand loan production capacity at existing branch
offices in fiscal 1995. While the Company has been able to establish and
grow this business thus far, there can be no assurance that future
expansion will be successful due to competitive, regulatory, market,
economic or other factors.
The Company's Board of Directors has authorized the repurchase of up to
6,000,000 shares of the Company's common stock. A total of 3,017,300
shares of common stock have been purchased pursuant to this program
through September 30, 1994. However, no shares were purchased during the
three months ended September 30, 1994.
As of September 30, 1994, the Company had $19.5 million in cash and cash
equivalents and investment securities. The Company also has a revolving
credit agreement with a group of banks under which the Company may borrow
up to $75 million. The Company estimates that it will require additional
external capital in fiscal 1995 in addition to these existing capital
resources and collections and recoveries on its finance receivables
portfolio in order to fund expansion of its indirect consumer lending
business, capital expenditures, and other costs and expenses.
The Company anticipates that such funding will be in the form of a
securitization of a portion of its finance receivables portfolio. There
can be no assurance that external funding will be available, or if
available, that it will be on terms acceptable to the Company.
<PAGE>
PART II. OTHER INFORMATION
Item 1. LEGAL PROCEEDINGS
Reference should be made to information
contained in Note 4 of the Notes to Consolidated
Financial Statements in response to this Item 1.
Item 2. CHANGES IN SECURITIES
Not Applicable
Item 3. DEFAULTS UPON SENIOR SECURITIES
Not Applicable
Item 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY
HOLDERS
Not Applicable
Item 5. OTHER INFORMATION
Not Applicable
Item 6. EXHIBITS AND REPORTS ON FORM 8-K
(A) Exhibits:
10.1 - Revolving Credit Agreement, dated
September 21, 1994, between AmeriCredit
Corp. and subsidiaries and First Interstate
Bank of Texas, N.A., Bank One, Texas, N.A.,
LaSalle National Bank, and The Daiwa Bank,
Ltd.
11.1 - Statement Re Computation of Per
Share Earnings
27.1 - Financial Data Schedule
(b) Reports on Form 8-K
The Company did not file any reports on
Form 8-K during the quarterly period ended
September 30, 1994.
<PAGE>
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
AmeriCredit Corp.
----------------------------------
(Registrant)
Date: November 11, 1994 By: /s/ Daniel E. Berce
----------------------------------
(Signature)
Daniel E. Berce
Chief Financial Officer
REVOLVING CREDIT AGREEMENT
This 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, URCARCO OPERATING CO., INC., a Delaware corporation,
AMERICREDIT PREMIUM FINANCE, INC., a Delaware corporation, and ACF
INVESTMENT CORP., a Delaware corporation, and FIRST INTERSTATE BANK OF
TEXAS, N.A., BANK ONE, TEXAS, N.A., LASALLE NATIONAL BANK and THE DAIWA
BANK, LTD. (collectively, the "Banks") and FIRST INTERSTATE BANK OF
TEXAS, N.A., as agent for the Banks ("Agent").
W I T N E S S E T H:
WHEREAS, AmeriCredit Corp. and AmeriCredit Financial Services,
Inc. (individually, a "Borrower" and collectively, the "Borrowers") have
requested Banks to provide them with a revolving credit facility for
working capital and for general corporate purposes; and
WHEREAS, Banks are willing to provide such facilities to
Borrowers, upon the terms and subject to the conditions hereinafter set
forth.
NOW, THEREFORE, in consideration of the mutual promises herein
contained and for other valuable consideration, the parties hereto do
hereby agree 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:
"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": Section 2.01.
"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.
"Arbitration Program": Article XI.
"Banks" shall mean First Interstate Bank of Texas, N.A. and all
other banks which are parties to this Loan Agreement or any amendment
thereto.
<PAGE>
"Borrowers" shall mean AmeriCredit Corp., a Texas corporation,
and AmeriCredit Financial Services, Inc., a Delaware corporation.
"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 benefit of the Banks
pursuant to the Security Agreement.
"Business Day" shall mean a day upon which business is
transacted by national banks in Fort Worth, Texas and New York, New York.
"Capital Expenditures" shall mean, for any specified period, the
aggregate of all gross expenditures during such period for any assets, or
for improvements, replacements, substitutions or additions therefor or
thereto, which are capitalized on the consolidated balance sheet of the
Company, including the balance sheet amount of any capitalized lease
obligations incurred during such period.
"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 such
principles.
"Cash Flow" shall mean, for any period, the sum of Net Income,
depreciation and amortization.
"Commitment": Section 2.01.
"Consequential Loss" shall, with respect to the payment by
either 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, mean
any loss, cost or expense actually incurred by such Bank as a result of
the timing of such payment or in redepositing such principal amount,
including 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.
"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.
<PAGE>
"Dealer" shall mean a retail vendor of motor vehicles from which
AmeriCredit Financial Services, Inc. acquires Finance Contracts which is
not an Affiliate of either of Borrowers.
"Delinquent Loans" shall mean Indirect Loans having an
installment payment or final payment which is more than 60 days past due
(without regard to any grace period) on a contractual basis prior to any
repossession of the related vehicle.
"Direct Loan" shall mean any finance contract originated by
URCARCO Operating Co., Inc., in connection with the sale of a motor
vehicle by URCARCO Operating Co., Inc. or its predecessors.
"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.
"Eligible Finance Contract" shall mean a Finance Contract,
(i) that is secured by an Eligible Vehicle,
(ii) that represents a Domestic Finance Contract to an Obligor (other
than an Affiliate of Borrower),
(iii) that was originated by a Dealer other than a Dealer that is an
Affiliate of Borrower, unless otherwise consented to in writing by the
Agent (which consent shall not be unreasonably withheld),
(iv) that is not delinquent (without regard to any stated grace
period) more than 30 days on a contractual basis prior to any
repossession of the related Eligible Vehicle,
(v) that has not been rewritten in any respect, unless the Finance
Contract constitutes an Eligible Modified Finance Contract,
(vi) in respect of which the related motor 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 the security interests on the chattel paper and without
taking possession of either the agreements evidencing such Finance
Contract or related certificates of title.
<PAGE>
(ix) that is not subject to a security interest in favor of a Person
other than the Agent on behalf of the Banks and that is not subject to a
securitization; and
(x) 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 60 days past due at the time of any
modification, (2) no modification extended the original maturity date by
more than 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 of the Finance Contract
has occurred during any 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 either Borrower's knowledge is not acquired for use in
a commercial enterprise or as part of a fleet, and (ii) in respect of
which either 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 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.
"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. Sec. 9601 et seq.), the
Hazardous Material Transportation Act (49 U.S.C. Sec. 1801 et seq.), the
Recourse Conservation and Recovery Act (42 U.S.C. Sec. 6901 et seq.), the
Federal Water Pollution Control Act (33 U.S.C. Sec. 1251 et seq.), the Clean
Air Act (42 U.S.C. Sec. 7401 et seq.), the Toxic Substances Control Act (15
U.S.C. Sec. 2601 et seq.), and the Occupational Safety and Health Act (29
U.S.C. Sec. 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.
<PAGE>
"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 thereby).
"Finance Contract" shall mean a motor vehicle installment sales
contract assigned to 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.
"Fixed Charge Coverage Ratio" shall mean Net Income before
interest, taxes, depreciation and amortization plus rental expense under
operating leases divided by the sum of interest expense and rental
expense under operating leases.
"Floating Prime Advance" shall mean any principal amount under a
Note with respect to which the interest rate is calculated by reference
to the Floating Prime Rate.
"Floating Prime Borrowing" shall mean any Borrowing composed of
Floating Prime Advances.
"Floating Prime Rate" shall mean the rate of interest per annum
quoted by First Interstate Bank of Texas, N.A., from time to time as its
prime commercial rate of interest (it being understood that Banks may
from time to time extend credit to other borrowers at rates of interest
varying from, and having no relationship to, such prime commercial rate).
"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
<PAGE>
American Institute of Certified Public Accountants in order to continue
as a generally accepted accounting principle or practice may so be
changed.
"Guarantor" shall mean any of the Guarantors.
"Guarantors" shall mean URCARCO Operating Co., Inc., a Delaware
corporation, 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 therefore;
(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; and
(3) all obligations of such Person in respect of any
Guaranty.
<PAGE>
"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 third party Dealer.
"Interbank Offered Rate" shall mean, with respect to each
Interest Period, that rate of interest determined by Agent on the basis
of the offered rates for deposits in Dollars commencing on the first day
of such Interest Period which appear on the Reuters Screen LIBO Page as
of 11:00 a.m., London time two (2) Eurodollar Business Days preceding the
first day of such Interest Period, such deposits being for a period of
time equal to or comparable to such Interest Period and in an amount
equal to or comparable to the principal amount of the Eurodollar Loan to
which such Interest Period relates. If at least two (2) such offered
rates appear on the Reuters Screen LIBO Page, the rate in respect to the
applicable Interest Period will be the arithmetic mean of such offered
rates. If fewer than two (2) offered rates appear, the rate in respect
of such Interest Period will be determined on the basis of the rates at
which deposits in Dollars are offered by Agent (at approximately 11:00
a.m. London time, on the day that is two (2) Eurodollar Business Days
prior to the first day of such Interest Period) to first-class banks in
the London Interbank eurodollar market for delivery on the first day of
such Interest Period, such deposits being for a period of time equal or
comparable to such Interest Period and in an amount equal to or
comparable to the principal amount of the Eurodollar Loan to which such
Interest Period relates.
"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 Company 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.
<PAGE>
"Investment" shall mean any direct or indirect purchase or other
acquisition of, or a beneficial interest in, capital stock or other
securities 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.
"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, 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.
"Loan Loss Reserve" shall mean the allowance for losses relating
to Indirect Loans as shown on the Consolidated financial statements of
the Company prepared in accordance with Generally Accepted Accounting
Principles.
"Majority Banks" shall mean, at any time, Banks holding Notes
representing at least sixty-six and 2/3 percent 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 of the Total Commitment.
"Material Adverse Effect" shall mean any act, circumstance, 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 financial condition or business operations of the Company
and its Subsidiaries on a Consolidated basis, or (iv) could reasonably be
expected to impair the ability of either 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 "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
<PAGE>
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.
"Net Amount" shall mean with respect to Finance Contracts, as
of any date, the outstanding face amount thereof as of such
date, minus (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).
"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.
"Net Worth" shall mean, as of any date, the total shareholders'
equity (including capital stock both common and preferred, additional
paid-in capital and retained earnings after deducting treasury stock)
which would appear on a consolidated balance sheet of Company prepared as
of such date in accordance with Generally Accepted Accounting Principles.
"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, and reasonable 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).
"Officer's Certificate" shall mean a certificate signed in the
name of the Company by its Chief Executive Officer, President, one of its
Executive Vice Presidents, its Chief Financial Officer, one of its Vice
Presidents, or its Controller.
"Past Due Rate" shall mean the lesser of (a) the Prime 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.
"Permitted Liens" shall mean: (i) Liens on equipment and fixed
assets, including purchase money Liens, relating to or securing
<PAGE>
obligations in an aggregate amount not to exceed one million dollars
($1,000,000); (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) 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; and (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.
"Percentage" shall mean, with respect to any Bank, such Bank's
proportionate share of the Total Commitment, as set forth in Section 2.01
opposite its name under the heading "Commitment Percentage."
"Person" shall mean and include an individual, partnership,
joint venture, corporation, 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.
"Recoveries" shall mean amounts realized on the sale of
collateral, 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 either of
Borrowers or any of the Guarantors to comply with any of the rules,
regulations and other requirements as contemplated in Section 7.11 hereof
which would have a Material Adverse Effect, and/or (ii) any unfavorable
examination report shall be received by Borrowers or any of the
Guarantors from any regulatory or similar Tribunal regarding any of the
businesses or activities in which the Borrowers and Guarantors are
engaged, if such report would have a Material Adverse Effect.
<PAGE>
"Revolving Credit Loans" shall have the meaning assigned to it
in Section 2.01 hereof.
"Security Agreement" shall mean the Security Agreement, dated as
of September 21, 1994, as amended as of the date hereof delivered by
AmeriCredit Financial Services, Inc. to the Agent for the benefit of the
Banks, granting the security interests in certain of the properties and
assets of AmeriCredit Financial Services, Inc. described therein, as
amended or supplemented from time to time.
"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. Sec. 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 of 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, 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
<PAGE>
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.
"Taxes" shall mean all taxes, levies, assessments, fees,
withholdings or other charges at any time imposed by any Laws or
Tribunal.
"Termination Date" shall mean November 2, 1995.
"Tribunal" shall mean any municipal, state, commonwealth,
federal, foreign, territorial or other court, governmental body,
subdivision, agency, department, commission, board or bureau or
instrumentality.
"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.
"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 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
<PAGE>
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>
First Interstate Bank
of Texas, N.A. $30,000,000 40.0%
Bank One, Texas, N.A. 20,000,000 26 2/3%
LaSalle National Bank 15,000,000 20.0%
The Daiwa Bank, Ltd. 10,000,000 13 1/3%
---------- ------
$75,000,000 100%
========== ===
</TABLE>
No Bank shall be obligated to make any Advance hereunder if, immediately
after giving effect thereto, the aggregate amount of all indebtedness and
obligations of Borrowers to such Bank hereunder exceeds such Bank's
Commitment.
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 seventy five million
dollars ($75,000,000).
(b) Borrowing Base Limitation. The maximum aggregate amount
outstanding at any time under the Revolving Credit Loans shall not exceed
the Borrowing Base then in effect.
(c) Borrowing Base Deficiency. If the aggregate unpaid
principal balance of the Revolving Credit Loans shall at any time exceed
the Borrowing Base then in effect, Borrowers shall pay to Agent within
one (1) Business Day of the date of the earlier of the most recent
Borrowing Base Certificate or the date of notification to Borrowers by
Agent of the amount of the Borrowing Base an amount equal to such excess
so that the aggregate unpaid principal balance of the Revolving Credit
Loans (after giving effect to such payment) is not in excess of the
Borrowing Base then in effect.
(d) Loan Origination Fee. At the time of execution of this
Agreement, Borrowers shall pay to Agent for the account of Agent a loan
origination fee in the aggregate amount of fifty thousand dollars
($50,000). In addition, at the time of execution of this Agreement,
Borrowers shall pay to each Bank other than Agent a loan origination fee
in an amount equal to one quarter percent (.25%) of the Commitment of
each such Bank.
<PAGE>
(e) Facility Fee. In addition to the payments provided for in
Article IV hereof, Borrowers shall pay to Agent, for the account of each
Bank, on the first day of each fiscal quarter of Company beginning
October 1, 1994, a revolving credit loan commitment fee at the rate of
three eighths percent (.375%) per annum (calculated on the basis of a
year consisting of 360 days) on the average daily amount of such Bank's
Commitment which was unused during the immediately preceding fiscal
quarter of Company. 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 Company to Agent for
a Borrowing under Section 2.01 hereof (a "Request for Borrowing") shall
be in writing or by telephonic notice 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. Company 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 Prime Advance. Any written Request for Borrowing shall:
(i) in the case of a Floating Prime 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." If such Request for
Borrowing is by telephonic notice, said telephonic notice shall be
confirmed in writing within two (2) Business Days of such telephonic
notice pursuant to a Confirmation of Request For Borrowing
(i) substantially in the form attached hereto as Exhibit "E" in the case
of a Floating Prime Borrowing and (ii) substantially in the form attached
hereto as Exhibit "F" in the case of a Eurodollar Borrowing. Each
Floating Prime Borrowing shall be in an aggregate principal amount of one
hundred thousand dollars ($100,000.00) or any 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, Company may (without
specifying whether the anticipated Borrowing shall be a Floating Prime
Borrowing or Eurodollar Borrowing) request that Agent provide Company
with the most recent InterBank Offered Rate available to Agent. Agent
shall endeavor to provide such quoted rates to Company on the date of
such request.
Each Request for Borrowing shall be irrevocable and binding on
Company and, in respect of the Borrowing specified in such Request for
Borrowing, Company shall indemnify 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 Bank to fund the Advance to be made by Bank as
part of such Borrowing when such Advance, as a result of such failure, is
not made on such date.
<PAGE>
After receiving a Request for Borrowing in the manner provided
herein, Agent shall promptly notify each Bank by telephone (confirmed
immediately by telex or cable), 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 1:00 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 Company 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 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 Company 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. As
used herein, the phrase "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 Dallas, 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.
(c) Selection of Interest Option. Upon making a Request for
Borrowing under Section 2.02(a) hereof, Company shall advise Agent as to
whether the Borrowing shall be (i) a Eurodollar Borrowing, in which case
Company shall specify the applicable Interest Period therefor, or (ii) a
<PAGE>
Floating Prime Borrowing. At least three (3) Eurodollar Business Days
prior to the termination of each Interest Period with respect to a
Eurodollar Borrowing (whether such termination occurs before or after the
Termination Date) Company 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 Company 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 Company 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 Company shall be deemed to have elected to have such
Borrowing be a Floating Prime Borrowing. With respect to any Floating
Prime Borrowing, Company shall have the right, on any Eurodollar Business
Day (a "Conversion Date") to convert such Floating Prime 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,
Company shall have no right to request a Eurodollar Borrowing if the
interest rate applicable thereto under Section 2.03 hereof would exceed
the Maximum Rate in effect on the first day of the Interest Period
applicable to such Eurodollar Borrowing.
2.03. Interest Rate. The unpaid principal of each Floating
Prime Advance 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 Prime Rate in effect from day to day plus one half
percent (0.5%) or (b) the Maximum Rate. The unpaid principal of each
Eurodollar Advance 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 two and one quarter percent (2.25%) or (b) the Maximum 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(b) hereof, upon the
occurrence of the circumstances described in such section.
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 2.03 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 Company hereunder.
<PAGE>
3.02. Principal Payments on Revolving Credit Loans. The unpaid
principal amount of each Note, and all accrued but unpaid interest
thereon, shall be due and payable on the Termination Date.
3.03. Prepayments.
(a) Optional Prepayments. Borrowers may, without premium or
penalty, prepay the principal of the Notes then outstanding, in whole or
in part, at any time or from time to time; provided, however, that (i)
each prepayment of less than the full outstanding principal balance of
the Note 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 (through 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 Period. During the Revolving Credit
Period, the interest on the unpaid principal amount of each Floating
Prime Advance shall be payable monthly as it accrues on the first
Business Day of each month commencing October 1, 1994, and on the
Termination Date. Interest on the unpaid principal amount of each
Eurodollar Advance shall be payable on the last day of such Interest
Period. Should any installment of interest become due and payable on a
day other than a Business Day, the maturity thereof shall be extended to
the next succeeding Business Day.
(b) 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 Prime Advance shall be calculated
on the basis of the actual days elapsed in a year consisting of 360 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 Federal or other
immediately available funds at Agent's principal banking office in Fort
<PAGE>
Worth. 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 Prime 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 Prime Advances
and Eurodollar Advances under the Notes as Borrowers shall select;
provided, however, that Borrowers shall select Floating Prime 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
Prime 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 Prime Advances and then to Eurodollar Advances.
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 Company has 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 rate applicable to such portion of the Revolving
Credit Loan on its due date.
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 Prime 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 Company for such Borrowing.
<PAGE>
3.09. Taxes.
(a) Any and all payments by Borrowers hereunder or under the
Notes shall be made, in accordance with Section 3.07, 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 either 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 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.
(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 make 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
<PAGE>
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 Bank shall repay to the
purchasing Bank the purchase price to the extent of such recovery
together with an amount equal to such 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.
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:
(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 Company, 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 Prime 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 Tribunal, 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,
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
<PAGE>
Prime 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 Tribunal,
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, the Notes, 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
by such Bank to be material; then, within five (5) days after demand by
such Bank (with a copy to Agent), Company 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 Company 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 Prime 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 Prime 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, 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
<PAGE>
conclusive and binding. Any conversion of a Eurodollar Borrowing to a
Floating Prime 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
Revolving Credit Notes shall be secured by a first security interest in
all Finance Contracts evidencing Indirect Loans except Finance Contracts
subject to a securitization which has been approved by Majority Banks.
5.02 Guaranty Documents. To secure the performance of Borrowers
of the payment of the Revolving Credit 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) Promissory Note. A duly executed promissory note, drawn to
the order of each Bank, in the form of Exhibit A attached hereto with
appropriate insertions.
(b) Security Agreement. Security agreement executed by
AmeriCredit Financial Services, Inc. covering all now existing and
hereafter arising Finance Contracts evidencing Indirect Loans except
Finance Contracts subject to a securitization which has been approved by
Majority Banks.
(c) Financing Statements. Financing statements executed by
AmeriCredit Financial Services, Inc. covering all now existing and
hereafter arising Finance Contracts evidencing Indirect Loans except
Finance Contracts subject to a securitization which has been approved by
Majority Banks.
(d) Guaranty Agreement. The Guaranty agreement in the form of
Exhibit B executed by URCARCO Operating Co., Inc., AmeriCredit Premium
Finance, Inc. and ACF Investment Corp.
(e) Termination Agreement. Termination agreement between
AmeriCredit Corp. and First Interstate Bank of Texas, N.A. relating to
the Revolving Credit Agreement dated October 18, 1993 between AmeriCredit
Corp., et al., and First Interstate Bank of Texas, N.A.
(f) Agent's Fee Agreement. Agent's fee agreement between
Borrowers and Agent.
(g) Borrowing Base. A borrowing base certificate satisfying the
requirements of Section 8.01.
<PAGE>
(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 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.
(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 either 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).
<PAGE>
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. Company 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 Company 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 Company a Request for Borrowing by telephonic
notice or in the form of either Exhibit "C" or Exhibit "D" attached
hereto, dated as of the date of such Advance and signed by an authorized
officer of Company, 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. If any Advance was by telephonic notice, said telephonic notice
must be confirmed in writing within two (2) Business Days of such
telephonic notice pursuant to a Confirmation of Request For Advance
(1) substantially in the form attached as Exhibit "E" in the case of a
Floating Prime Advance and (2) substantially in the form attached as
Exhibit "F" in the case of a Eurodollar Advance.
(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 which causes 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 shall be true in all
material respects 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
either of Borrowers or any Guarantor.
(g) Financing Statements. If requested and prepared by Agent
but not less frequently than monthly, AmeriCredit Financial Services,
Inc. shall have executed and delivered to Agent financing statements
covering all Finance Contracts evidencing Indirect Loans except Finance
Contracts subject to a securitization which has been approved by Agent or
a security interest in favor of a Person other than Agent for the benefit
of Banks.
ARTICLE VII
REPRESENTATIONS AND WARRANTIES
To induce Banks to make the Revolving Credit Loans, Borrowers
represent and warrant to Banks that:
<PAGE>
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 either of Borrowers or any of the Guarantors is
subject or any judgment, license, order or permit applicable to either
of Borrowers or any of the Guarantors, or any indenture, loan agreement,
mortgage, deed of trust, or other agreement or instrument to which either
of Borrowers or any of the Guarantors is a party or by which either of
Borrowers or any of the Guarantors may be bound, or to which either of
Borrowers or any of the Guarantors may be subject, or violate any
provision of the Charter or Bylaws of either 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 either of Borrowers or any of the Guarantors of
the Loan Documents or to consummate the transactions contemplated hereby
or thereby.
7.05. Enforceable Obligations. This Loan Agreement, the Notes,
the Guaranty Agreement and the other Loan Documents are the legal and
binding obligations of the corporation executing such Loan Documents,
enforceable 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 Company and each of its Subsidiaries are free
and clear of all mortgages, liens, encumbrances and other adverse claims
<PAGE>
of any nature, and such corporation has and will have good and marketable
title to such properties and assets. There is no indebtedness to any
Person which is reflected as a secured party in the financing statements
listed on Exhibit M executed by either of Borrowers or any Guarantor in
favor of any of such Persons.
7.07. Financial Condition. Company has delivered to Agent
copies of the balance sheet of Company and its Subsidiaries as of July
31, 1994, and the related consolidated statements of income,
stockholders' 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 except for the exclusion of footnotes and normal adjustments; 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 Company since July 31, 1994.
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 on the properties business, prospects or
condition (financial or otherwise) of either of Borrowers or any of the
Guarantors. Neither the financial statements referred to in Section 7.07
hereof, nor any certificate or statement delivered herewith or heretofore
by 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 G attached
hereto, there are no actions, suits or legal, equitable, arbitration or
administrative proceedings pending, or to the knowledge of Borrowers
threatened, against either of Borrowers or any of the Guarantors that
would, 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 either
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 solely for working
capital for and general corporate purposes of AmeriCredit Corp. and
AmeriCredit Financial Services, 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 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. Neither of Borrowers is engaged in the business of extending credit
for the purpose of purchasing or carrying margin stocks. Neither of
Borrowers 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
<PAGE>
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. Borrowers do not 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 Company and its 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 9.07, 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 Company and its 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 either of Borrowers or any Subsidiary or
upon any of its or their 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 either 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, Fort Worth, Tarrant County, Texas 76107, and Borrowers
maintain their principal records and books at such address.
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 H,
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, the failure to comply with
which could have a Material Adverse Effect, including all Environmental
Laws. Neither Company nor any Subsidiary has been notified by any
Governmental Authority that Company or any Subsidiary has failed to
comply with any such laws, rules, regulations, orders or decrees, the
failure to comply with which would result in a Material Adverse Effect,
nor has Company or any Subsidiary been notified of any Environmental
Claim except as described in Exhibit H.
<PAGE>
7.18. Government Regulation. Neither of Borrowers 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. Sec. 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.
Sec. 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., URCARCO 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). Excluding intercompany
indebtedness and after 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 including under the
Guaranty Agreement, 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 "I" 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 "I" 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
<PAGE>
described in Exhibit "I" attached hereto, there are no underground
storage tanks located on any of the properties presently owned or
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
to Agent all Finance Contracts evidencing Indirect Loans except Finance
Contracts that are subject to a securitization or a security interest in
favor of a Person other than Agent for the benefit of Banks.
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 Company
that no Event of Default exists 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 Company
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 thirty (30) days
after the end of each month, Borrowers shall furnish to Agent a
certificate in form satisfactory to Agent executed by the chief financial
officer or controller of each of Borrowers reflecting in detail a
computation of the Borrowing Base as of the end of such month.
8.02. Compliance Certificate. Within thirty (30) days after
the end of each calendar month hereafter, Borrowers shall deliver to
Agent a certificate executed by the chief financial officer or controller
of each of Borrowers stating that a review of its activities during such
month has been made under his supervision and that such Borrower has
observed, performed and fulfilled each and every obligation and covenant
contained herein and is not in default under any of the same or, if any
such default shall have occurred, specifying the nature and status
thereof.
8.03. Monthly Statements. Within thirty (30) days after the
end of each calendar month, Company shall furnish Agent copies of the
balance sheet of Company and its Subsidiaries as of the close of such
calendar month, and statements of income and statements of cash flow of
Company and its Subsidiaries for the portion of the year then ended, in
<PAGE>
each case setting forth in comparative form the figures for the preceding
year.
8.04. Audited Annual Statements. As soon as available and in
any event within one hundred twenty (120) days after the close of each
fiscal year of Company, Company shall furnish to each of Banks copies of
the Consolidated balance sheet of Company and its Subsidiaries as of the
close of such fiscal year and Consolidated statements of income,
shareholders' equity and the statement of cash flow of Company and its
Subsidiaries for such fiscal year, in each case setting forth in
comparative form the figures for the preceding fiscal year, all in
reasonable detail and accompanied by an opinion thereon (which shall not
be qualified by reason of any limitation imposed by Company) of
independent public accountants of recognized national standing selected
by Company and satisfactory to Agent, to the effect that such financial
statements have been prepared in accordance with Generally Accepted
Accounting Principles and that the examination of such accounts in
connection with such financial statements has been made in accordance
with generally accepted auditing standards.
8.05. SEC and Other Reports. Promptly upon transmission
thereof, Company shall furnish Agent with copies of all financial
statements, proxy statements, notices and reports which Company sends to
its public security holders and copies of all registration statements
(without exhibits) and all reports which it files with the Securities and
Exchange Commission (or any governmental body or agency succeeding to the
functions of the Securities and Exchange Commission).
8.06. Delinquencies. Within thirty (30) days after the end of
each month, Borrowers shall furnish to Agent (a) a summary report
reflecting the amount of all delinquencies and charge-offs for Direct
Loans, the percentage of Direct Loans which are delinquent and the
percentage of Direct Loans which have been charged off, (b) a summary
report reflecting the amount of all delinquencies and charge-offs for
Indirect Loans, the percentage of Indirect Loans which are delinquent,
and the percentage of Indirect Loans which have been charged off, (c) a
summary report reflecting the amount of all Indirect Loans that are past
due by cycle and (d) a summary report reflecting the amount of all Direct
Loans which are past due by cycle.
8.07. List of Indirect Loans. Within thirty (30) days after
the end of each calendar month, Borrowers shall furnish to Agent two (2)
copies of a list of all Finance Contracts and promissory notes evidencing
Indirect Loans (other than Finance Contracts subject to a securitization
which has been approved by Majority Banks) that reflects the name,
address and account number of each Obligor and the unpaid principal
balance of each Finance Contract and promissory note as of the end of
such preceding calendar month.
8.08. Charge Off Vintage Reports. Within thirty (30) days
after the end of each month, Borrowers shall furnish Agent with a
delinquency and charge-off vintage report reflecting the percentage of
Indirect Loans which are delinquent and which have been charged off by
month of origination accompanied by the supporting data.
8.09. Rollforward Report. Within thirty (30) days after the
end of each month, Borrowers shall furnish to Agent with a notes
receivable rollforward report reflecting all originations, collections,
charge-offs, pay-offs and ending balances for both Direct Loans and
Indirect Loans.
<PAGE>
8.10. Repossessions. Within thirty (30) days after the end of
each month, Borrowers shall furnish to Agent a summary report reflecting
the aggregate principal amount of Finance Contracts in respect of which
the related motor vehicle has been repossessed, excluding Finance
Contracts which have been charged off.
8.11. Modified Contracts. Within thirty (30) days after the
end of each month, Borrowers shall furnish to Agent a summary report
reflecting the principal amount of all Finance Contracts that have been
modified in any way which affects the contractual timing or amount of any
installment payment due under such Finance Contract.
8.12. Material Events. Each of the Borrowers shall promptly
notify Agent of (i) any Material Adverse Effect in its financial
condition or business; (ii) any material default under any material
agreement, contract or other instrument to which such Borrower is a party
or by which any of its properties are bound, or any acceleration of any
maturity of any Indebtedness owing by such Borrower, (iii) any material
adverse claim against or affecting such Borrower or any of its properties
which might or could reasonably be expected to have a Material Adverse
Effect; and (iv) any litigation, or any claim or controversy which might
become the subject of litigation, against such Borrower or affecting any
of such Borrower's property, if such litigation or potential litigation
might be expected to have or could reasonably be expected to have, in the
event of any unfavorable outcome, a Material Adverse Effect on such
Borrower's financial condition or business or might or could reasonably
be expected to cause an Event of Default.
8.13. Insurance. Each Borrower shall maintain on its
properties insurance of responsible and reputable companies in such
amounts and covering such risks as is prudent and is usually carried by
companies engaged in businesses similar to that of such Borrower; each
Borrower shall furnish Agent, on request, with certified copies of
insurance policies or other appropriate evidence of compliance with the
foregoing covenant.
8.14. Licenses. Borrowers shall preserve and maintain all
material licenses, privileges, franchises, certificates and the like
necessary for the operation of their respective business.
8.15. Compliance with Loan Documents. Borrowers will comply in
all material respects with any and all covenants and provisions of this
Loan Agreement, the Notes and all other of the Loan Documents.
8.16. Compliance with Material Agreements. Borrowers will
comply in all material respects with all material agreements, indentures,
mortgages or documents binding on it or affecting their properties or
business where the failure to so comply would have a Material Adverse
Effect.
8.17. Operations and Properties. Borrowers will act prudently
and in accordance with customary industry standards in managing or
operating its assets, properties, business and investments; Borrowers
will keep in good working order and condition, ordinary wear and tear
excepted, all of their respective assets and properties which are
necessary to the conduct of its business except for worn out or obsolete
assets which have been replaced.
8.18. Books and Records; Access. Upon prior written notice,
Borrowers will give any representative of Bank access during all business
hours to, and permit such representative to examine, copy or make
<PAGE>
excerpts from, any and all books, records and documents in the possession
of Borrowers and relating to its affairs, and to inspect any of the
properties of Borrowers. Borrowers will maintain complete and accurate
books and records of its transactions in accordance with good
accounting practices.
8.19. Compliance with Law. Company will comply with and will
cause each Subsidiary to comply with all applicable laws, rules,
regulations, and all orders of any Governmental Authority applicable to
it or any of its property, business operations or transactions, a breach
of which could have a Material Adverse Effect on Company's or any
Subsidiary's financial condition, business or credit.
8.20. ERISA Compliance. Each Borrower shall (a) at all times,
make prompt payment of all contributions required under all Plans and
required to meet the minimum funding standard set forth in ERISA with
respect to its Plans; (b) notify Bank immediately of any fact, including,
but not limited to, any Reportable event arising in connection with any
of its Plans, which might constitute grounds for termination thereof by
the PBGC or for the appointment by the appropriate United States District
Court of a trustee to administer such Plan, together with a statement, if
requested by Bank, as to the reason therefor and the action, if any,
proposed to be taken with respect thereto; and (c) furnish to Bank, upon
its request, such additional information concerning any of its Plans as
may be reasonably requested.
8.21. Additional Information. Borrowers shall promptly furnish
to Agent, at Agent's request, such additional financial or other
information concerning assets, liabilities, operations and transactions
of Borrowers as Agent may from time to time reasonably request.
8.22. Principal Depository. Borrowers shall use Agent as their
principal depository; Borrowers shall use the lockbox services of Agent
within ninety (90) days after the date of this Agreement.
8.23. Guaranty of Subsidiary Corporations. Company shall cause
each Subsidiary formed after the date of this Agreement to execute a
guaranty of payment of the Notes within ten (10) days after the date of
formation of such Subsidiary except any special purpose Subsidiary formed
solely for the purpose of consummating a securitization.
8.24. Financing Statements. If requested by Agent, AmeriCredit
Financial Services, Inc. shall execute and deliver to Agent new financing
statements in form satisfactory to Agent at the time it commences
conducting business in any state in which it has not previously conducted
business.
8.25. Field Tests. Borrowers shall from time to time permit
Banks to conduct field examinations at the expense of Banks.
8.26. Delivery of Indirect Loans. At the request of Agent or
Majority Banks after the occurrence of an Event of Default, Borrowers
shall promptly deliver to Agent all Finance Contracts and promissory
notes evidencing Indirect Loans duly endorsed or assigned to Agent.
8.27. Inspection of Indirect Loans. Borrowers shall permit
Agent and its officers and representatives to inspect all Finance
Contracts and promissory notes evidencing Indirect Loans once each month
during normal business hours.
<PAGE>
8.28. Further Assurances. Upon request of the Agent, Borrowers
agree to promptly cure any defects in the creation, issuance, execution
and delivery of this Loan Agreement or in the Loan Documents. Each of
Borrowers, at their expense, will further promptly execute and deliver to
Agent upon request all such other and further documents, agreements and
instruments in compliance with or accomplishment of the covenants and
agreements of Borrowers hereunder, or to further evidence and more fully
describe the obligations of Borrowers hereunder, or to correct any
omissions herein, or to more fully state the obligations set out herein.
ARTICLE IX
NEGATIVE COVENANTS
So long as Banks have any commitment to make Advances hereunder,
and until full payment of the Notes and the performance of the
Obligation, Company covenants and agrees that neither Company nor any of
its Subsidiaries will, unless Majority Banks otherwise consent in
writing:
9.01. Ratio of Indebtedness to Net Worth. Permit the ratio of
the difference between the total amount of the Indebtedness and cash
balances of Company and its Subsidiaries to the Net Worth of Company and
its Subsidiaries on a Consolidated basis to be more than 1.0 to 1.0 on or
prior to June 30, 1995 or more than 1.25 to 1.0 thereafter; or
9.02. Cash Flow. Permit its Cash Flow to be less than five
million dollars ($5,000,000) during any twelve (12) month period; or
9.03. Fixed Charge Coverage Ratio. Permit the Fixed Charge
Coverage Ratio computed on a trailing twelve (12) month basis to be less
than 4.5 to 1.0 at any time on or prior to June 30, 1995 or to be less
than 3.5 to 1.0 thereafter; or
9.04. Capital Expenditures. Permit the aggregate amount of all
Capital Expenditures of Company and its Subsidiaries to exceed $1,750,000
prior to the Termination Date; or
9.05. Loss. Incur any net loss during any trailing three (3)
month period; or
9.06. Limitation on Additional Indebtedness. Incur or assume
or permit any of its Subsidiaries to incur or assume any Indebtedness for
borrowed money, except for (i) the indebtedness evidenced by the Notes;
(ii) trade debt incurred in the ordinary course of business; (iii) one
million dollars ($1,000,000) in the aggregate; and (iv) indebtedness
arising from securitizations approved by Majority Banks; or
9.07. Restrictions on Dividends on Capital Stock. Pay any
dividends or make any distributions on or with respect to its outstanding
capital stock or purchase, redeem or purchase any of it capital stock in
excess of $2,500,000 in the aggregate; or
9.08. Losses to Net Indirect Loans. Permit the ratio of Net
Credit Losses to Net Indirect Loans to be greater than .14 to 1.0 during
any 12 month period; or
9.09. Delinquent Loans to Net Indirect Loans. Permit the ratio
of Delinquent Loans to Net Indirect Loans to be greater than .045 to 1.0
at any time; or
<PAGE>
9.10. Liquidation, Mergers, Consolidation and Disposition of
Substantial Assets. Liquidate, dissolve or reorganize; or merge or
consolidate with any other corporation or entity; or acquire or permit
any of its Subsidiaries to acquire all or substantially all of the assets
of, any other company, firm or association except for the purchase of
loans or Finance Contracts; or make or permit any of its Subsidiaries to
make any other substantial change in its capitalization or its business
other than a securitization approved by Majority Banks; or
9.11. Enter Into Transaction With Affiliates. Enter into, or
be a party to, any transaction with any Affiliate, Subsidiary or
shareholder of Company, except (i) as permitted by this Agreement, (ii)
in the ordinary course of and pursuant to the reasonable requirements of
Company's business and upon fair and reasonable terms which are fully
disclosed to Agent or (iii) sales of equity securities to its current
shareholders other than management in connection with future financing
upon fair and reasonable terms which are fully disclosed to Agent which
are no less favorable to Company than would be in an arm's length
transaction with Person's not an Affiliate; or
9.12. Business Acquisitions. Purchase, lease or otherwise
acquire all or substantially all of the assets of any other corporation,
partnership or person except the purchase of loans or Finance Contracts;
or
9.13. Negative Pledge. Create or suffer to exist any mortgage,
pledge, security interest, conditional sale or other title retention
agreement, charge, encumbrance or other Lien (whether such interest is
based on common law, statute, other law or contract) upon any of its
property or assets, now owned or hereafter acquired, except for Permitted
Liens and Liens in favor of Agent; or
9.14. No Grant of Negative Pledge. Agree with any Person not
to create or suffer to exist any mortgage, pledge, security interest or
encumbrance or Lien upon any of its property or assets now owned or
hereafter acquired; or
9.15. Sale of Accounts Receivable. Sell or permit any
Subsidiary to sell any of its accounts receivable, with or without
recourse; or
9.16. Securitization Agreement. Enter into any securitization
or similar agreement; or
9.17. Loan Loss Reserve Ratio. Permit the ratio of the Loan
Loss Reserve to Net Indirect Loans to be less than .05 to 1.0 at any
time.
If any action or failure to act by Company or any Subsidiary violates any
covenant or obligations of Borrowers contained herein, then such
violation shall not be excused by the fact that such action or failure to
act would otherwise be required or permitted by any covenant (or
exception to any covenant) other than the covenant violated.
ARTICLE X
EVENTS OF DEFAULT; REMEDIES UPON EVENT OF DEFAULT
10.01. Events of Default. An "Event of Default" shall exist if
any one or more of the following events (herein collectively called
"Events of Default") shall occur and be continuing:
<PAGE>
(a) Borrowers shall fail to pay when due any principal of, or
interest on any Note, or any other fee or payment due hereunder or under
any of the Loan Documents; or
(b) Failure or refusal of either of Borrowers to observe, keep
and perform any of the covenants, agreements and obligations hereunder or
any of the Loan Documents and the continuance of such failure or refusal
for a period of twenty (20) days after receipt of written notice from
Agent to Borrowers specifying such failure; or
(c) Company or any of its Subsidiaries shall (i) apply for or
consent to the appointment of a receiver, custodian, trustee, intervenor
or liquidator of all or a substantial part of its assets,
(ii) voluntarily become the subject of a bankruptcy, reorganization or
insolvency proceeding or be insolvent or admit in writing that it is
unable to pay its debts as they become due, (iii) make a general
assignment for the benefit of creditors, (iv) file a petition or answer
seeking reorganization or an arrangement with creditors or to take
advantage of any bankruptcy or insolvency laws, (v) file an answer
admitting the material allegations of, or consent to, or default in
answering, a petition filed against it in any bankruptcy, reorganization
or insolvency proceeding, or (vi) become the subject of an order for
relief under any bankruptcy, reorganization or insolvency proceeding; or
(d) An order, judgment or decree shall be entered by any court
of competent jurisdiction or other competent authority approving a
petition appointing a receiver, custodian, trustee, intervenor or
liquidator of Company or any of its Subsidiaries or of all or
substantially all of its assets, and such order, judgment or decree shall
continue unstayed and in effect for a period of sixty (60) days; or a
complaint or petition shall be filed against Company or any of its
Subsidiaries seeking or instituting a bankruptcy, insolvency,
reorganization, rehabilitation or receivership proceeding of Company or
any of its Subsidiaries, and such petition or complaint shall not have
been dismissed within sixty (60) days; or
(e) any final judgment(s) for the payment of money in excess of
the sum of two hundred thousand dollars ($200,000) in the aggregate shall
be rendered against Company or any Subsidiary and such judgment or
judgments shall not be satisfied or discharged at least ten (10) days
prior to the date on which any of its assets could be lawfully sold to
satisfy such judgment; or
(f) There shall occur any change in the condition (financial or
otherwise) of Company or any Subsidiary which, in the reasonable opinion
of Majority Banks, has a Material Adverse Effect; or
(g) The occurrence of a default or an event of default under any
securitization or similar agreement to which Company or any of its
Subsidiaries is a party.
10.02. Remedies Upon Event of Default. If an Event of Default
shall have occurred and be continuing, then Agent shall, at the request
of Majority Banks, exercise any one or more of the following rights and
remedies, and any other remedies in any of the Loan Documents, as
Majority Banks in their sole discretion, may deem necessary or
appropriate: (i) declare the principal of, and all interest then accrued
on, the Notes and any other liabilities hereunder to be forthwith due and
payable, whereupon the same shall forthwith become due and payable
without presentment, demand, protest, notice of default, notice of
acceleration or notice of intention to accelerate or other notice of any
<PAGE>
kind, all of which Borrowers hereby expressly waive, anything contained
herein or in the Notes to the contrary notwithstanding, (ii) refuse to
make any additional Advances under the Notes, (iii) reduce any claim to
judgment, and/or (iv) without notice of default or demand, pursue and
enforce any of Banks' rights and remedies under the Loan Documents or
otherwise provided under or pursuant to any applicable law or agreement.
10.03. Performance by Banks. Should either of Borrowers fail
to perform in any material respect any covenant, duty or agreement
contained herein or in any of the Loan Documents, Agent or Banks may, at
their option, perform or attempt to perform such covenant, duty or
agreement on behalf of the Borrowers following written notice to
Borrowers of such intention to perform. In such event, Borrowers shall,
at the request of Agent or Banks, promptly pay any amount reasonably
expended by Agent or Banks in performance or attempted performance to
Agent at its principal office in Fort Worth, Texas, together with
interest thereon at the Past Due Rate from the date of such expenditure
until paid. Notwithstanding the foregoing, it is expressly understood
that neither Banks nor Agent assume any liability or responsibility
(except liability attributable to their gross negligence or willful
misconduct) for the performance of any duties of Borrowers hereunder or
under any of the Loan Documents or other control over the management and
affairs of the Borrowers.
10.04. Remedies Cumulative. All covenants, conditions,
provisions, warranties, indemnities and other undertakings of Borrowers
contained in this Agreement, or in any document referred to herein or in
any agreement supplementary hereto or in any of the Loan Documents shall
be deemed cumulative to and not in derogation or substitution of any of
the terms, covenants, conditions or agreements of Borrowers contained
herein. The failure or delay of Agent or Banks to exercise or enforce
any rights, liens, powers or remedies hereunder or under any of the
aforesaid agreements or other documents against any security shall not
operate as a waiver of such liens, rights, powers and remedies, but all
such rights, powers and remedies shall continue in full force and effect
until the loans evidenced by the Notes and the entire Obligation of
Borrowers to Banks shall have been fully satisfied, and all rights,
liens, powers and remedies herein provided for are cumulative and none
are exclusive.
ARTICLE XI
ARBITRATION PROGRAM
11.01. Binding Arbitration. Upon the demand of any party,
whether made before or after the institution of any judicial proceeding,
any Dispute (as defined below) shall be resolved by binding arbitration
in accordance with the terms of this Arbitration Program. A "Dispute"
shall include any action, dispute, claim, or controversy of any kind
(e.g., whether in contract or in tort, statutory or common law, legal or
equitable, or otherwise) now existing or hereafter arising between the
parties in any way arising out of, pertaining to or in connection with
(1) the agreement, document or instrument to which this Arbitration
Program is attached or in which it is referred to or any related
agreements, documents, or instruments (the "Documents"), (2) all past,
present or future loans, notes instruments, drafts, credits, accounts,
deposit accounts, safe deposit boxes, safekeeping agreements, guarantees,
letters of credit, goods or services, or other transactions, contracts or
agreements of any kind whatsoever, (3) any past, present or future
incidents, omissions, acts, practices, or occurrences causing injury to
either party whereby the other party or its agents, employees, or
representatives may be liable, in whole or in part, or (4) any aspect of
<PAGE>
the past, present or future relationships of the parties including any
agency, independent contractor or employment relationship but excluding
claims for workers' compensation and unemployment benefits
("Relationship"). Any party to this Arbitration Program may, by summary
proceedings (e.g., a plea in abatement or motion to stay further
proceedings), bring any action in court to compel arbitration of any
Disputes. Any party who fails or refuses to submit to binding
arbitration following a lawful demand by the opposing party shall bear
all costs and expenses incurred by the opposing party in compelling
arbitration of any Dispute. The parties agree that by engaging in
activities with or involving each other as described above, they are
participating in transactions involving interstate commerce.
11.02. Governing Rules. All Disputes between the parties shall
be resolved by binding arbitration administered by the American
Arbitration Association (the "AAA") in accordance with, and in the
following priority: (1) the terms of this Arbitration Program, (2) the
Commercial Arbitration Rules of the AAA, (3) the Federal Arbitration Act
(Title 9 of the United States Code) and (4) to the extent the foregoing
are inapplicable, unenforceable or invalid, the laws of the State of
Texas. The validity and enforceability of this Arbitration Program shall
be determined in accordance with this same order of priority. In the
event of any inconsistency between this Arbitration Program and such
rules and statutes, this Arbitration Program shall control. Judgment
upon any award rendered hereunder may be entered in any court having
jurisdiction; provided, however, that nothing contained herein shall be
deemed to be a waiver by any party that is a bank of the protections
afforded to it under 12 U.S.C. Sec. 91 or Texas Banking Code Art. 342-609.
11.03. No Waiver; Preservation of Remedies; Multiple Parties.
No provision of, nor the exercise of any rights under, this Arbitration
Program shall limit the right of any party, during any Dispute to seek,
use, and employ ancillary or preliminary remedies, judicial or otherwise,
for the purpose of realizing upon, preserving, protecting, foreclosing or
proceeding under forcible entry and detainer for possession of any real
or personal property, and any such action shall not be deemed an election
of remedies. Such rights shall include, without limitation, rights and
remedies relating to (1) foreclosing against any real or personal
property collateral or other security by the exercise of a power of sale
under a deed of trust, mortgage, or other security agreement or
instrument, or applicable law, (2) exercising self-help remedies
(including setoff rights) or (3) obtaining provisional or ancillary
remedies such as injunctive relief, sequestration, attachment,
garnishment, or the appointment of a receiver from a court having
jurisdiction. Such rights can be exercised at any time except to the
extent such action is contrary to a final award or decision in any
arbitration proceeding. The institution and maintenance of an action for
judicial relief or pursuit of provisional or ancillary remedies or
exercise of self-help remedies shall not constitute a waiver of the right
of any party, including the plaintiff, to submit the Dispute to
arbitration nor render inapplicable the compulsory arbitration provisions
hereof. In Disputes involving indebtedness or other monetary
obligations, each party agrees that the other party may proceed against
all liable persons, jointly and severally, or against one or more of
them, less than all, without impairing rights against other liable
persons. Nor shall a party be required to join the principal obligor or
any other liable persons (e.g., sureties or guarantors) in any proceeding
against a particular person. A party may release or settle with one or
more liable persons as the party deems fit without releasing or impairing
rights to proceed against any persons not so released.
<PAGE>
11.04. Statute of Limitations. All statutes of limitation
shall apply to any proceeding in accordance with this Arbitration
Program.
11.05. Arbitrator Powers and Qualifications; Awards;
Modification or Vacation of Award. Arbitrators are empowered to resolve
Disputes by summary rulings substantially similar to summary judgments
and motions to dismiss. Arbitrators shall resolve all Disputes in
accordance with the applicable substantive law. Any arbitrator selected
shall be required to be a practicing attorney licensed to practice law in
the State of Texas and shall be required to be experienced and
knowledgeable in the substantive laws applicable to the subject matter of
the Dispute. With respect to a Dispute in which the claims or amounts in
controversy do not exceed $1,000,000, a single arbitrator shall be chosen
and shall resolve the Dispute. In such case, the arbitrator shall be
required to make specific, written findings of fact, and shall have
authority to render an award up to but not to exceed $1,000,000,
including all damages of any kind whatsoever, including costs, fees and
expenses. A Dispute involving claims or amounts in controversy exceeding
$1,000,000 shall be decided by a majority vote of a panel of three
arbitrators (an "Arbitration Panel"), the determination of any two of the
three arbitrators constituting the determination of the Arbitration
Panel, provided, however, that all three Arbitrators on the Arbitration
Panel must actively participate in all hearings and deliberations.
Arbitrators, including any Arbitration Panel, may grant any remedy or
relief deemed just and equitable and within the scope of this Arbitration
Program and may also grant such ancillary relief as is necessary to make
effective any award. Arbitration Panels shall be required to make
specific, written findings of fact and conclusions of law, and in such
proceedings before an Arbitration Panel only, the parties shall have the
additional right to seek vacation or modification of any award of an
Arbitration Panel that is based in whole, or in part, on an incorrect or
erroneous ruling of law by appeal to a Federal or State Court of Appeals,
following the entry of judgment on the award in Federal or State District
Court, as appropriate. For these purposes, the award and judgment
entered by the Federal or State District Court shall be considered to be
the same as the award and judgment of the Arbitration Panel. All
requirements applicable to appeals from any Federal or State District
Court judgment shall be applicable to appeals from judgments entered on
decisions rendered by Arbitration Panels. The Appellate Courts shall
have the power and authority to vacate or modify an award based upon a
determination that there has been an incorrect or erroneous ruling of
law. The Appellate Court shall also have the power to reverse and/or
remand the decision of an Arbitration Panel. Subject to the foregoing,
the determination of an Arbitrator or Arbitration Panel shall be binding
on all parties and shall not be subject to further review or appeal
except as otherwise allowed by applicable law.
11.06. Other Matters and Miscellaneous. To the maximum extent
practicable, the AAA, the Arbitrator (or the Arbitration Panel, as
appropriate) and the parties shall take any action necessary to require
that an arbitration proceeding hereunder be concluded within 180 days of
the filing of the Dispute with the AAA. Arbitration proceedings
hereunder shall be conducted at one of the following locations in the
State of Texas agreed to in writing by the parties or, in the absence of
such agreement, selected by the AAA: (1) Dallas; or (2) Fort Worth.
Arbitrators shall be empowered to impose sanctions and to take such other
actions as they deem necessary to the same extent a judge could do
pursuant to the Federal Rules of Civil Procedure, the Texas Rules of
Civil Procedure and applicable law. With respect to any Dispute, each
party agrees that all discovery activities shall be expressly limited to
matters directly relevant to the Dispute and any Arbitrator, Arbitration
<PAGE>
Panel and the AAA shall be required to fully enforce this requirement.
This Arbitration Program constitutes the entire agreement of the parties
with respect to its subject matter and supersedes all prior discussions,
arrangements, negotiations, and other communications on dispute
resolution. The provisions of this Arbitration Program shall survive any
termination, amendment, or expiration of the Documents or the
Relationship, unless the parties otherwise expressly agree in writing.
To the extent permitted by applicable law, Arbitrators, including any
Arbitration Panel, shall have the power to award recovery of all costs
and fees (including attorneys' fees, administrative fees, and
arbitrators' fees) to the prevailing party. This Arbitration Program may
be amended, changed, or modified only by the express provisions of a
writing which specifically refers to this Arbitration Program and which
is signed by all the parties hereto. If any term, covenant, condition,
or provision of this Arbitration Program is found to be unlawful, invalid
or unenforceable, such illegality or invalidity or unenforceability shall
not affect the legality, validity, or enforceability of the remaining
parts of this Arbitration Program, and all such remaining parts hereof
shall be valid and enforceable and have full force and effect as if the
illegal, invalid, or unenforceable part had not been included. The
captions or headings in this Arbitration Program are for convenience of
reference only and are not intended to constitute any part of the body or
text of this Arbitration Program. Each party agrees to keep all Disputes
and arbitration proceedings strictly confidential, except for disclosures
of information required in the ordinary course of business of the parties
or by applicable law or regulation. To the maximum extent permitted by
law, this Arbitration Program modifies and supersedes any and all prior
agreements for arbitration between the parties.
ARTICLE XII
THE AGENT
12.01. Appointment and Authorization. Each Bank hereby
irrevocably appoints and authorizes Agent to take such action on its
behalf and to exercise such powers under the Loan Documents as are
delegated to Agent by the terms thereof, together with such powers as are
reasonably incidental thereto. With respect to its Commitment, the
Advances made by it and the Notes issued to it, Agent shall have the same
rights and powers under this Agreement as any other Bank and may exercise
the same as though it were not Agent; and the term "Bank" or "Banks"
shall, unless otherwise expressly indicated, include the Agent in its
capacity as a Bank. The Agent and its affiliates may accept deposits
from, lend money to, act as trustee under indentures of, and generally
engage in any kind of business with, Borrowers, and any Person which may
do business with Borrowers, all as if Agent were not Agent hereunder and
without any duty to account therefor to Banks.
12.02. Note Holders. Agent may treat the payee of any Note as
the holder thereof until written notice of transfer shall have been filed
with it signed by such payee and in form satisfactory to Agent.
12.03. Consultation with Counsel. Banks agree that Agent may
consult with legal counsel selected by it and shall not be liable for any
action taken or suffered in good faith by them in accordance with the
advice of such counsel.
12.04. Documents. Agent shall not be under a duty to examine
or pass upon the validity, effectiveness, enforceability, genuineness or
value of any of the Loan Documents or any other instrument or document
<PAGE>
furnished pursuant thereto or in connection therewith, and Agent shall be
entitled to assume that the same are valid, effective, enforceable and
genuine and what they purport to be.
12.05. Resignation or Removal of Agent. Subject to the
appointment and acceptance of a successor Agent as provided below, the
Agent may resign at any time by giving written notice thereof to Banks
and Borrowers and the Agent may be removed at any time with or without
cause by Majority Banks. Upon any such resignation or removal, Majority
Banks shall have the right to appoint a successor Agent. If no successor
Agent shall have been so appointed by Majority Banks and shall have
accepted such appointment within 30 days after the retiring Agent's
giving of notice of resignation or Majority Banks' removal of the
retiring Agent, then the retiring Agent may, on behalf of the Banks,
appoint a successor Agent. Upon the acceptance of any appointment as
Agent hereunder by a successor Agent, such successor Agent shall
thereupon succeed to and become vested with all the rights, powers,
privileges and duties of the retiring Agent, and the retiring Agent shall
be discharged from its duties and obligations hereunder. After any
retiring Agent's resignation or removal hereunder as Agent, the
provisions of this Article 12 shall continue in effect for its benefit in
respect to any actions taken or omitted to be taken by it while it was
acting as Agent.
12.06. Responsibility of Agent. It is expressly understood and
agreed that the obligations of Agent under the Loan Documents are only
those expressly set forth in the Loan Documents and that Agent shall be
entitled to assume that no Event of Default or event which, with the
giving of notice or lapse of time, or both, would constitute an Event of
Default has occurred and is continuing, unless Agent has actual knowledge
of such fact or has received notice from a Bank that such Bank considers
that an Event of Default or such event has occurred and is continuing and
specifying the nature thereof. Agent shall furnish to each of Banks
within five (5) Business Days receipt copies of the documents, statements
and reports furnished to Agent pursuant to Sections 8.01, 8.02, 8.03,
8.05, 8.06, 8.08 and 8.09. Banks recognize and agree, that for purposes
of Section 2.02(b) hereof, Agent shall not be required to determine
independently whether the conditions described in Sections 6.02(a), (b),
(c), (d), (e) and (f) have been satisfied and, in disbursing funds to
Borrowers, may rely fully upon statements contained in the relevant
Request for Borrowing. Neither Agent nor any of its directors, officers
or employees shall be liable for any action taken or omitted to be taken
by it under or in connection with the Loan Documents, except for its own
gross negligence or willful misconduct. Agent shall incur no liability
under or in respect of any of the Loan Documents by acting upon any
notice, consent, certificate, warranty or other paper or instrument
believed by it to be genuine or authentic or to be signed by the proper
party or parties, or with respect to anything which it may do or refrain
from doing in the reasonable exercise of its judgment, or which may seem
to it to be necessary or desirable in the premises.
The relationship between Agent and each of the Banks is only
that of agent and principal and has no fiduciary aspects, and Agent's
duties hereunder are acknowledged to be only ministerial and not
involving the exercise of discretion on its part. Nothing in this Loan
Agreement or elsewhere contained shall be construed to impose on Agent
any duties or responsibilities other than those for which express
provision is herein made. In performing its duties and functions
hereunder, Agent does not assume and shall not be deemed to have assumed,
and hereby expressly disclaims, any obligation or responsibility toward
or any relationship of agency or trust with or for, Borrowers. As to any
matters not expressly provided for by this Loan Agreement (including,
<PAGE>
without limitation, enforcement or collection of the Notes), Agent shall
not be required to exercise any discretion or take any action, but shall
be required to act or to refrain from acting (and shall be fully
protected in so acting or refraining from acting) upon the instructions
of Majority Banks and such instructions shall be binding upon all Banks
and all holders of Notes; provided, however, that Agent shall not be
required to take any action which exposes Agent to personal liability or
which is contrary to this Loan Agreement or applicable law.
12.07. Notices of Event of Default. In the event that Agent
shall have acquired actual knowledge of any Event of Default or of an
event which, with the giving of notice or the lapse of time, or both,
would constitute an Event of Default, Agent shall promptly give notice
thereof to the other Banks.
12.08. Independent Investigation. Each of the Banks severally
represents and warrants to Agent that it has made its own independent
investigation and assessment of the financial condition and affairs of
the Borrowers in connection with the making and continuation of its
participation in the Loans hereunder and has not relied exclusively on
any information provided to such Bank by Agent in connection herewith,
and each Bank represents, warrants and undertakes to Agent that it shall
continue to make its own independent appraisal of the creditworthiness of
the Borrowers while the Loans are outstanding or its commitment hereunder
is in force.
12.09. Indemnification. Banks agree to indemnify Agent (to the
extent not reimbursed by Borrowers), ratably according to the proportion
that the respective principal amounts of the Note held by each of them
bears to the sum of the aggregate principal amount of the Notes, from and
against any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses, or disbursements of any kind
or nature whatsoever which may be imposed on, incurred by or asserted
against Agent in any way relating to or arising out of the Loan Documents
or any action taken or omitted by Agent under the Loan Documents,
provided that no Bank shall be liable for any portion of such
liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements resulting from Agent's gross
negligence or willful misconduct.
12.10. Benefit of Article XII. The agreements contained in
this Article XII are solely for the benefit of Agent and the Banks, and
are not for the benefit of, or to be relied upon by, the Borrowers, or
any third party.
12.11. Not a Loan to Agent; No Duty to Repurchase. No amount
paid by any Bank hereunder shall be considered a loan by Agent. Agent
shall have no obligation to repurchase any interest from any Bank.
12.12. Amendments, Waivers, etc. Agent may enter into any
amendment or modification of, or may waive compliance with the terms of,
any of the Loan Documents with the written direction of the Majority
Banks; provided that the consent of all Banks shall be required before
Agent may take or omit to take any action under any of the Loan Documents
directly affecting (a) the extension of the maturity of or the
postponement of the payment of any portion of the principal of or
interest on Revolving Credit Loans or any fees relating thereto, (b) a
reduction of or increase in the principal amount of or rate of interest
payable on Revolving Credit Loans or any fees related thereto, or (c) the
release of either of Borrowers. Nor shall any of the following occur
without the consent of all Banks: (a) any amendment to the definition of
Majority Banks, or (b) any amendment to this Section 12.12. The
<PAGE>
Commitment of a Bank shall not be increased without the consent of such
Bank. If any Bank is unwilling to consent to any amendment or
modification of, or waiver of compliance with, the Loan Agreement (where
the consent of such Bank is required), the consenting Majority Banks
shall have the right, but not the obligation, to repurchase such Bank's
Percentage of the Obligation at such time for a purchase price equal to
Bank's Percentage of any and all unpaid Advances made by Agent to the
Borrowers under the Loan Agreement, any and all unpaid interest thereon
and unpaid accrued fees or other amounts owing to such Bank.
12.13. Bank's Representations. Each Bank represents and
warrants to Agent and the other Banks that: (a) it is engaged in the
business of entering into commercial lending transactions (including
transactions of the nature contemplated herein) and can bear the economic
risk related to the same; and (b) it does not consider the obligations
hereunder to constitute the "purchase" or "sale" of a "security" withint
he meaning of any federal or state securities statute or law, or any rule
or regulation under any of the foregoing.
ARTICLE XIII
MISCELLANEOUS
13.01. Waiver. No failure to exercise, and no delay in
exercising, on the part of any Bank, any right hereunder shall operate as
a waiver thereof, nor shall any single or partial exercise thereof
preclude any other further exercise thereof or the exercise of any other
right. The rights of Banks hereunder and under the Loan Documents shall
be in addition to all other rights provided by law. No notice or demand
given in any case shall constitute a waiver of the right to take other
action in the same, similar or other instances without such notice or
demand.
13.02. Notices. Any notices or other communications required
or permitted to be given by this Agreement or any other documents
relating to the loans evidenced by the Notes (the "Loan Documents") must
be given in writing and personally delivered, sent by telecopy or telex
(answerback received) or mailed by prepaid certified or registered mail,
return receipt requested, to the party to whom such notice or
communication is directed at the address of such party as follows:
Borrowers: AmeriCredit Corp.
200 Bailey
Fort Worth, Texas 76107
Attn: Chief Financial Officer
FAX No. (817) 336-9519
AmeriCredit Financial Services, Inc.
200 Bailey
Fort Worth, Texas 76107
Attn: Chief Financial Officer
FAX No. (817) 336-9519
Agent: First Interstate Bank of Texas, N.A.
309 W. Seventh Street, Suite 1100
Fort Worth, Texas 76102
Attn: Steve Wood
FAX No. (817) 885-1110
<PAGE>
Any such notice or other communication shall be deemed to have been given
on the date it is personally delivered or sent by telecopy or telex as
aforesaid or, if mailed, on the second day after it is mailed as
aforesaid (whether actually received or not). Any party may change its
address for purposes of this Loan Agreement by giving notice of such
change to all other parties pursuant to this Section 13.02. Any notice
given hereunder by Borrowers to Agent shall constitute notice to all of
the Banks.
13.03. Payment of Expenses. Borrowers agree to pay all costs
and expenses of Banks (including, without limitation, the reasonable
attorneys' fees of Banks' outside legal counsel) incurred by Banks in
connection with the preservation and enforcement of Banks' rights under
this Loan Agreement, the Notes, and/or the other Loan Documents, and all
reasonable costs and expenses of Banks (including without limitation the
reasonable fees and expenses of Banks' outside legal counsel) in
connection with the negotiation, preparation, execution and delivery of
this Loan Agreement, the Notes, and the other Loan Documents and any and
all amendments, modifications and supplements thereof or thereto.
13.04. Maximum Interest Rate. Regardless of any provisions
contained in this Loan Agreement, the Notes or in any of the other Loan
Documents, Banks shall never be deemed to have contracted for or be
entitled to receive, collect or apply as interest on the Notes any amount
in excess of the Maximum Rate, and, in the event any Bank ever receives,
collects or applies as interest any such excess, such amount which would
be excessive interest shall be deemed to be a partial prepayment of
principal and treated hereunder as such, and, if the principal amount of
the Obligations is paid in full, any remaining excess shall forthwith be
paid to Borrowers. In determining whether or not the interest paid or
payable under any specific contingency exceeds the Maximum Rate,
Borrowers and Banks shall, to the maximum extent permitted by applicable
law, (i) characterize any nonprincipal payments (other than payments
which are expressly designated as interest payments hereunder) as an
expense, fee, or premium, rather than as interest, (ii) exclude voluntary
prepayments and the effect thereof, and (iii) amortize, prorate, allocate
and spread, in equal parts, the total amount of interest throughout the
entire contemplated term of the indebtedness so that interest paid by
Borrowers does not exceed the Maximum Rate; provided that, if a Note is
paid and performed in full prior to the end of the full contemplated term
thereof, and if the interest received for the actual period of existence
thereof exceeds the Maximum Rate, Banks shall refund to Borrowers the
amount of such excess or credit the amount of such excess against the
principal amount of the Notes and, in such event, Banks shall not be
subject to the penalties provided by any laws for contracting for,
charging, taking, reserving or receiving interest in excess of the
Maximum Rate.
13.05. Amendments. This Loan Agreement and the other Loan
Documents may be amended only by an instrument in writing executed by the
party, or an authorized officer of the party, against whom such amendment
is sought to be enforced.
13.06. Governing Law. This Loan Agreement has been prepared,
is being executed and delivered, and is intended to be performed in the
State of Texas, and the substantive laws of such state and the applicable
federal laws of the United States of America shall govern the validity,
construction, enforcement and interpretation of this Loan Agreement and
all of the other Loan Documents.
<PAGE>
13.07. Invalid Provisions. If any provision of any Loan
Document is held to be illegal, invalid or unenforceable under present or
future laws during the term of this Loan Agreement, such provision shall
be fully severable; such Loan Document shall be construed and enforced as
if such illegal, invalid or unenforceable provision had never comprised a
part of such Loan Document; and the remaining provisions of such Loan
Document shall remain in full force and effect and shall not be affected
by the illegal, invalid or unenforceable provision or by its severance
from such Loan Document. Furthermore, in lieu of each such illegal,
invalid or unenforceable provision shall be added as part of such Loan
Document a provision mutually agreeable to Borrowers, Agent and Majority
Banks as similar in terms to such illegal, invalid or unenforceable
provision as may be possible and be legal, valid and enforceable. In the
event Borrowers, Agent and Majority Banks are unable to agree upon a
provision to be added to the Loan Document within a period of ten (10)
Business Days after a provision of the Loan Document is held to be
illegal, invalid or unenforceable, then a provision reasonably acceptable
to Agent and Majority Banks as similar in terms to the illegal, invalid
or unenforceable provision as is possible and be legal, valid and
enforceable shall be added automatically to such Loan Document. In
either case, the effective date of the added provision shall be the date
upon which the prior provision was held to be illegal, invalid or
unenforceable.
13.08. Headings. Section headings are for convenience of
reference only and shall in no way affect the interpretation of this Loan
Agreement.
13.09. Participation Agreements and Assignments. (a)(i)
Subject to Section 13.09(a)(ii), each Bank may assign to one or more
Eligible Assignees all or a portion of its rights and obligations under
this Loan Agreement (including, without limitation, all or a portion of
its Commitment, the Loan owing to it and the Note held by it) and the
other Loan Documents; provided, however, that (A) no such assignment
shall be made except to an Affiliate unless such assignment and assignee
have been approved by the Agent and, so long as no Events of Default
exists, the Borrowers, such approvals not to be unreasonably withheld,
(B) each such assignment shall be of a constant, and not a varying,
percentage of all rights and obligations of the assignor under this Loan
Agreement and the other Loan Documents, and no assignment shall be made
unless it covers a pro rata share of all rights and obligations of such
assignor under this Loan Agreement and the other Loan Documents, (C) the
amount of the Commitment of the assigning Bank being assigned pursuant to
each such assignment (determined as of the date of the Assignment and
Acceptance substantially in the form of Exhibit J (hereinafter referred
to as the "Assignment and Acceptance") with respect to such assignment)
shall, unless otherwise agreed to by the Agent, in no event be less than
$5,000,000 or, if less, the entirety of its Commitment and shall be an
integral multiple of $1,000,000, (D) each such assignment shall be to an
Eligible Assignee (defined below), (E) the parties to each such
assignment shall execute and deliver to the Agent, for its acceptance and
recording in the Register (defined below), an Assignment and Acceptance,
together with any Note subject to such assignment and (F) Agent receives
a fee from the assignor in the amount of $2,500. Upon such execution,
delivery, acceptance and recording, from and after the effective date
specified in each Assignment and Acceptance, (1) the assignee thereunder
shall be a party hereto and, to the extent that rights and obligations
under the Loan Documents have been assigned to it pursuant to such
Assignment and Acceptance, have the rights and obligations of a Bank
under the Loan Documents, (2) the assigning Bank thereunder shall, to the
extent that rights and obligations under the Loan Documents have been
<PAGE>
assigned by it pursuant to such Assignment and Acceptance, relinquish its
rights and be released from its obligations under the Loan Documents
(and, in the case of an Assignment and Acceptance covering all or the
remaining portion of an assigning Bank's rights and obligations under
this Loan Agreement, such Bank shall cease to be a party hereto), and (3)
Section 2.01(a) shall be deemed to have been automatically amended to
reflect the revised Commitments. As used herein, "Eligible Assignee"
shall mean (a) any Bank or any Affiliate of any Bank; (b) a commercial
bank organized under the laws of the United States, or any state thereof,
and having total assets in excess of $1,000,000,000 and having deposits
rated in either of the two highest generic letter rating categories
(without regard to subcategories) from either Standard & Poor's
Corporation or Moody's Investors Service, Inc.; (c) a commercial bank
organized under the laws of any other country which is a member of the
Organization for Economic Cooperation and Development ("OECD"), or a
political subdivision of any such country, and having total assets in
excess of $1,000,000,000, provided that such bank is acting through a
branch or agency located in the country in which it is organized or
another country which is also a member of the OECD; (d) the central bank
of any country which is a member of the OECD; and (e) any other financial
institution approved by the Agent.
(ii) In the event any Bank desires to transfer all or any
portion of its rights and obligations under the Loan Documents, it shall
give the Borrowers and the Agent prior written notice of the identity of
such transferee and the terms and conditions of such transfer (a
"Transfer Notice"). So long as no Event of Default has occurred and is
continuing, the Borrowers may, no later than ten (10) days following
receipt of such Transfer Notice, designate an alternative transferee and
such Bank shall thereupon be obligated to sell the interests specified in
such Transfer Notice to such alternative transferee, subject to the
following: (A) such transfer shall be made on the same terms and
conditions outlined in such Transfer Notice, (B) such transfer shall
otherwise comply with the terms and conditions of the Loan Documents
(including Section 13.09(a)(i), and (C) such alternative transferee must
be an Eligible Assignee approved by the Agent. If the Borrowers shall
fail to designate an alternative transferee within such ten (10) day
period, such Bank shall, subject to compliance with the other terms and
provisions hereof, be free to consummate the transfer described in such
Transfer Notice.
(b) By executing and delivering an Assignment and Acceptance
substantially in the form of Exhibit J, the assigning Bank thereunder and
the assignee thereunder confirm to and agree with each other and the
other parties hereto as follows: (i) other than as provided in such
Assignment and Acceptance, such assigning Bank makes no representation or
warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with the Loan
Documents or the execution, legality, validity, enforceability,
genuineness, sufficiency or value of this Loan Agreement or any other
instrument or document furnished pursuant hereto, (ii) such assigning
Bank makes no representation or warranty and assumes no responsibility
with respect to the financial condition of the Borrowers or the
performance or observance by the Borrowers of any of its obligations
under this Loan Agreement or any other instrument or document furnished
pursuant hereto; (iii) such assignee confirms that it has received a copy
of this Loan Agreement and the other Loan Documents, together with copies
of the financial statements referred to in Section 7.07 and such other
documents and information as it has deemed appropriate to make its own
credit analysis and decision to enter into such Assignment and
Acceptance; (iv) such assignee will, independently and without reliance
upon any of the Banks (including such assigning Bank) and based on such
<PAGE>
documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action
under this Loan Agreement; (v) such assignee confirms that it is an
Eligible Assignee; (vi) such assignee appoints and authorizes the Agent
to take such action on its behalf and to exercise such powers under this
Loan Agreement and the other Loan Documents as are delegated to such
Person by the terms thereof, together with such powers as are reasonably
incidental thereto; and (vii) such assignee agrees that it will perform
in accordance with their terms all of the obligations which by the terms
of this Loan Agreement and the other Loan Documents are required to be
performed by it as a Bank.
(c) The Agent shall maintain a copy of each Assignment and
Acceptance delivered to and accepted by it and a register for the
recordation of the names and addresses of the Banks and the Commitment
of, and principal amount of the Notes owing to, each Bank from time to
time (the "Register"). The entries in the Register shall be conclusive
and binding for all purposes, absent manifest error, and the Borrowers
and each of the Banks may treat each Person whose name is recorded in the
Register as a Bank hereunder for all purposes of this Loan Agreement.
The Register shall be available for inspection by the Borrowers or any of
the Banks at any reasonable time and from time to time upon reasonable
prior notice.
(d) Upon its receipt of an Assignment and Acceptance executed
by an assigning Bank and an assignee representing that it is an Eligible
Assignee, together with any Note subject to such assignment, the Agent
shall, if such Assignment and Acceptance has been completed and is in
substantially the form of Exhibit J hereto and satisfies all other
requirements set forth in this Section 13.09, (i) accept such Assignment
and Acceptance, (ii) record the information contained therein in the
Register and (iii) give prompt notice thereof to the Borrowers and the
other Banks. Within five (5) Business Days after its receipt of such
notice, the Borrowers, at their own expense, shall execute and deliver to
the Agent, in exchange for the surrendered Note, a new Note to the order
of such Eligible Assignee in an amount corresponding to the Commitment
assumed by such Eligible Assignee pursuant to such Assignment and
Acceptance and, if the assigning Bank has retained a Commitment
hereunder, a new Note to the order of the assigning Bank in an amount
corresponding to the Commitment retained by it hereunder. Such new Notes
shall be in an aggregate principal amount equal to the aggregate
principal amount of such surrendered Notes, shall be dated the effective
date of such Assignment and Acceptance and shall otherwise be in
substantially the form prescribed by Exhibit J hereto.
(e) Each Bank may sell participations to one or more banks or
other entities in or to all or a portion of its rights and obligations
under this Loan Agreement and the other Loan Documents (including,
without limitation, all or a portion of its Commitment and the Notes
owing to it); provided, however, that (i) such Bank's obligations under
this Loan Agreement (including, without limitation, its Commitment to the
Company hereunder) and the other Loan Documents shall remain unchanged,
(ii) such Bank shall remain solely responsible to the other parties
hereto for the performance of such obligations, and the participating
banks or other entities shall not be considered a "Bank" for purposes of
the Loan Documents, (iii) the participating banks or other entities shall
be entitled to the cost protection provision contained in Section 4.03,
in each case to the same extent that the Bank from which such
participating bank or other entity acquired its participations would be
entitled to the benefit of such cost protection provisions and (iv) the
Borrowers and the other Banks shall continue to deal solely and directly
with such Bank in connection with such Bank's rights and obligations
<PAGE>
under this Loan Agreement and the other Loan Documents, and such Bank
shall retain the sole right to enforce the obligations of the Borrowers
relating to the Loans and to approve any amendment, modification or
waiver of any provision of this Loan Agreement (other than amendments,
modifications or waivers with respect to the amounts of any fees payable
hereunder or the amount of principal of or the rate at which interest is
payable on the Notes, or the dates fixed for payments of principal or
interest on the Notes).
(f) Any Bank may, in connection with any assignment or
participation or proposed assignment or participation pursuant to this
Section 13.09, disclose to the assignee or participant or proposed
assignee or participant, any information relating to the Borrowers
furnished to such Bank by or on behalf of the Borrowers; provided that
prior to any such disclosure, each such assignee or participant or
proposed assignee or participant shall agree (subject to customary
exceptions) to preserve the confidentiality of any confidential
information relating to the Borrowers received from such Bank.
(g) The obligations of the Banks in this Loan Agreement, the
Notes and any other Loan Documents shall not be assignable or
transferable by Borrowers and any purported assignment or transfer shall,
as to the Agent and Banks, be of no force and effect.
13.10. Article 15.10(b). Borrowers and Banks hereby agree
that, except for Article 15.10(b) thereof, the provisions of Charter 15
of Title 79 of the Revised Civil Statutes of Texas, 1925, as amended
(regulating certain revolving credit loans and revolving triparty
accounts) shall not apply to the Loan Documents.
13.11. Survival. All representations and warranties made by
Borrowers herein shall survive delivery of the Notes and the making of
the Revolving Credit Loans.
13.13. No Third Party Beneficiary. The parties do not intend
the benefits of this Agreement to inure to any third party, nor shall
this Loan Agreement be construed to make or render Banks liable to any
materialman, supplier, contractor, subcontractor, purchaser or lessee of
any property owned by Borrowers, or for debts or claims accruing to any
such persons against Borrowers. Notwithstanding anything contained
herein or in the Notes, or in any other Loan Document, or any conduct or
course of conduct by any or all of the parties hereto, before or after
signing this Loan Agreement or any of the other Loan Documents, neither
this Loan Agreement nor any other Loan Document shall be construed as
creating any right, claim or cause of action against Banks, or any of its
officers, directors, agents or employees, in favor of any materialman,
supplier, contractor, subcontractor, purchaser or lessee of any property
owned by Borrowers, nor to any other person or entity other than
Borrowers.
13.14. Counterpart Execution. This Loan Agreement may be
executed in multiple counterparts, all of which taken together shall
constitute one and the same instrument.
13.15. Final Agreement. THIS WRITTEN AGREEMENT REPRESENTS THE
FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY
EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OF THE
PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
<PAGE>
EXECUTED effective as of the 21st day of September, 1994.
AMERICREDIT CORP.,
a Texas corporation
By: _______________________________
Daniel E. Berce, Vice President
AMERICREDIT FINANCIAL SERVICES, INC.,
a Delaware corporation
By:_______________________________
Daniel E. Berce, Vice President
BORROWERS
URCARCO OPERATING CO., INC.,
a Delaware corporation
By:________________________________
Daniel E. Berce, Vice President
AMERICREDIT PREMIUM FINANCE, INC.,
a Delaware corporation
By:________________________________
Daniel E. Berce, President
ACF INVESTMENT CORP.,
a Delaware corporation
By:__________________________________
Daniel E. Berce, Vice President
GUARANTORS
FIRST INTERSTATE BANK OF TEXAS, N.A.
By:_______________________________
Steve Wood, Vice President
BANK ONE, TEXAS, N.A.
By:________________________________
J. Michael Wilson, Vice President
<PAGE>
LASALLE NATIONAL BANK
By:_________________________________
Terry M. Keating, First Vice
President
THE DAIWA BANK, LTD.
By:__________________________________
James T. Wang, Vice President
and Manager
By:__________________________________
Kirk T. Stites, Vice President
BANKS
FIRST INTERSTATE BANK OF TEXAS, N.A.
By:__________________________________
Steve Wood, Senior Vice President
AGENT
<PAGE>
EXHIBIT "A"
PROMISSORY NOTE
$__________________ September 21, 1994
FOR VALUE RECEIVED, the undersigned, AMERICREDIT CORP., a Texas
corporation, and AMERICREDIT FINANCIAL SERVICES, INC., a Delaware
corporation (the "Borrowers"), hereby jointly, severally and
unconditionally promise to pay to the order of _______________________
(the "Bank"), the principal sum of __________________ MILLION DOLLARS
($___,000,000.00), or such lesser aggregate amount of Advances as may be
made pursuant to Bank's Commitment, which principal shall be payable as
provided in Sections 3.01, 3.02, 3.03, 3.04 and 3.08 of the Loan
Agreement, together with the interest on the unpaid principal balance of
each Advance from the date made until maturity, which interest shall be
determined at the varying rates per annum, and shall be payable as
provided in Sections 2.03, 3.04, 3.05, 3.06, 3.07 and 3.08 of the Loan
Agreement. Payments of both principal and interest herein shall be made
to Agent's account at 309 W. Seventh Street, Fort Worth, Texas, in lawful
money of the United States of America and in immediately available funds.
The Advances made by Bank to Borrowers pursuant to the Loan
Agreement and all payments of the principal thereof and interest thereon
may be noted by Bank on the Loan and Payment Transaction Schedule
attached hereto, or on a continuation of such Schedule attached hereto or
similar computer generated payment schedule; provided, however, that the
failure of Bank to make any such notation or any error in making such
notation shall not limit or otherwise affect the obligations of Borrowers
hereunder or under the Loan Agreement.
This Note has been executed and delivered pursuant to the terms
of that certain Revolving Credit Agreement (the "Loan Agreement") by and
among Borrowers, the Guarantors (as defined in the Loan Agreement) and
First Interstate Bank of Texas, N.A., as Agent, and the Banks (as defined
in the Loan Agreement) dated as of September 21, 1994, and is a "Note"
referred to therein. Reference is hereby made to the Loan Agreement for
a statement of the repayment rights and obligations of Borrowers and for
a statement of the events upon which the maturity of this Note may be
accelerated.
Each capitalized term used herein shall have the same meaning
assigned to it in the Loan Agreement, unless the context hereof otherwise
requires or provides.
Borrowers agree to pay all costs and expenses of Banks incurred
in the collection of this Note, including but not limited to court costs
and reasonable attorneys' fees and all other costs and expenses described
in Section 13.03 of the Loan Agreement.
Borrowers and each surety, endorser, guarantor and any other
party now or hereafter liable for payment of any sums of money payable on
this Note, jointly and severally waive presentment and demand for
payment, protest, notice of protest and nonpayment, notice of intent to
accelerate, notice of acceleration and all other notices, filing of suit
and diligence in collecting this Note or enforcing any security with
respect to same, and agree that their liability under this Note shall not
be affected by any renewal or extension in the time of payment hereof, or
in any indulgences, or by any release, substitution or change in any
security for the payment of this Note, and hereby consent to any and all
renewals, extensions, indulgences, releases or changes, regardless of the
number of such renewals, extensions, indulgences, releases or changes.
<PAGE>
Regardless of any provision contained in this Note, the Loan
Agreement or any other document executed or delivered in connection
therewith, neither Bank nor any holder hereof shall be deemed to have
contracted for or be entitled to receive, collect or apply as interest
(including any fee, charge or amount which is not denominated as
"interest" but is legally deemed to be interest under applicable law) on
this Note, the Loan Agreement, the Loan Documents or otherwise, any
amount in excess of the Maximum Rate, and, in the event that Bank or any
holder hereof ever receives, collects or applies as interest any such
excess, such amount which would be excessive interest shall be applied to
the reduction of the unpaid principal balance of this Note, and, if the
principal balance of this Note is paid in full, any remaining excess
shall forthwith be paid to Borrowers. In determining whether or not the
interest paid or payable under any specific contingency exceeds the
Maximum Rate, Borrowers, Bank and any other holder hereof shall, to the
maximum extent permitted under applicable law, (i) characterize any
non-principal payment (other than payments which are expressly designated
as interest payments hereunder) as an expense or fee rather than as
interest, (ii) exclude voluntary prepayments and the effect thereof, and
(iii) amortize, prorate, allocate and spread the total amount of interest
throughout the entire contemplated term of this Note so that the interest
rate is uniform throughout the entire term; provided that, if this Note
is finally paid and performed in full prior to the end of the full
contemplated term hereof, and if the interest received for the actual
period of existence thereof exceeds the Maximum Rate, Bank or any holder
hereof shall refund to Borrowers the amount of such excess, or credit the
amount of such excess against the principal amount of this Note and, in
such event, neither Bank nor any other holder shall be subject to any
penalties provided by any laws for contracting for, charging, taking,
reserving or receiving interest in excess of the Maximum Rate.
This Note is being executed and delivered, and is intended to be
performed in the State of Texas. Except to the extent that the laws of
the United States may apply to the terms hereof, the substantive laws of
the State of Texas shall govern the validity, construction, enforcement
and interpretation of this Note.
AMERICREDIT CORP.,
a Texas corporation
By:
Daniel E. Berce, Vice President
AMERICREDIT FINANCIAL SERVICES, INC.,
a Delaware corporation
By:
Daniel E. Berce, Vice President
<PAGE>
LOAN AND PAYMENT
TRANSACTION SCHEDULE
attached to and made a part of a Note
dated September 21, 1994, executed by Americredit Corp. and
AmeriCredit Financial Services, Inc.
Amount Amount Unpaid Initials
Amount Amount of of Principal of Person
of of Principal Interest Balance Making
Date Advance Principal Repaid Paid of Note Notation
---------------------------------------------------------------------------
---------------------------------------------------------------------------
---------------------------------------------------------------------------
---------------------------------------------------------------------------
---------------------------------------------------------------------------
<PAGE>
EXHIBIT "B"
GUARANTY AGREEMENT
THIS GUARANTY AGREEMENT is dated as of the 21st day of September, 1994,
by URCARCO OPERATING CO., INC., a Delaware corporation,
AMERICREDIT PREMIUM FINANCE, INC., a Delaware corporation, and ACF
INVESTMENT CORP., a Delaware corporation, (collectively, the
"Guarantors"), in favor of FIRST INTERSTATE BANK OF TEXAS, N.A., as agent
for the benefit of the Banks (the "Agent").
WITNESSETH:
WHEREAS, pursuant to a Revolving Credit Agreement (the "Loan
Agreement") of even date herewith among AmeriCredit Corp., a Texas
corporation, and AmeriCredit Financial Services, Inc., a Delaware
corporation (individually, a "Borrower," and collectively, the
"Borrowers"), the Guarantors, Agent and Banks, the Banks have agreed to
make Revolving Credit Loans to the Borrowers; and
WHEREAS, it is a condition precedent to the obligation of the
Banks to make any such Revolving Credit Loans that the Guarantors
guaranty repayment thereof upon the terms and conditions set forth
herein; and
WHEREAS, Guarantors desire to induce the Banks to make such
Revolving Credit Loans, which may reasonably be expected to benefit,
directly or indirectly, each Guarantor.
NOW, THEREFORE, in consideration of the foregoing and for other
valuable consideration hereby acknowledged, Guarantors agree for the
benefit of Agent and the Banks as follows:
A. DEFINITIONS.
1. Definitions. Unless otherwise defined in this Guaranty,
terms used herein shall have the meanings set forth in the Loan
Agreement.
2. Additional Definitions. In addition to the definitions set
forth in the Loan Agreement, the following terms shall have the following
meanings:
"Adjusted Net Worth" shall mean, with respect to any Guarantor
as of the date of determination, (a) the value of the assets of such
Guarantor as of such date, minus (b) all liabilities of such Guarantor,
contingent or otherwise, as of such date (excluding such Guarantor's
liability hereunder), as such concepts are determined in accordance with
applicable laws governing determinations of the insolvency of debtors.
"Guaranteed Amount" shall mean, (a) the Obligations, and all
renewals, extensions, increases, modifications or rearrangements thereof,
plus (b) all costs incurred by the Agent and Banks to obtain, preserve,
defend and enforce this Guaranty and other Loan Documents, collect the
Obligations, and maintain, preserve, collect and enforce any security
relating to this Guaranty or any Guaranteed Amount, including without
limitation taxes, insurance premiums, attorneys' fees and legal expenses,
and expenses of sale.
"Maximum Guaranteed Amount" shall mean, with respect to any
Guarantor as of the date of determination, the greater of (a) the amount
of any Guaranteed Amount used to make a Valuable Transfer to such
Guarantor, and (b) the greater of 95% of the Guarantor's Adjusted Net
<PAGE>
Worth (i) at the date hereof (if appropriate under applicable Law), (ii)
at the time the Guaranteed Amount was incurred, and (iii) on the date of
enforcement hereof (which shall be deemed to be the date of commencement
of a proceeding described in Section 10.01(c) or Section 10.01(d) of the
Loan Agreement, if applicable).
"Valuable Transfer" shall mean, with respect to any Guarantor,
(a) all loans, advances or capital contributions made to such Guarantor
with proceeds of any Guaranteed Amount, (b) the acquisition from such
Guarantor or retirement by such Guarantor with proceeds of any Guaranteed
Amount of debt securities or other obligations of such Guarantor, (c) the
acquisition by such Guarantor of all property acquired with proceeds of
any Guaranteed Amount, and transferred, absolutely and not as collateral,
to such Guarantor, to the extent of the fair market value thereof, and
(d) the acquisition from such Guarantor with proceeds of any Guaranteed
Amount of equity securities of such Guarantor.
B. GUARANTY
1. Guaranty. Each Guarantor hereby jointly and severally
guarantees absolutely and unconditionally to Agent and the Banks the due
performance of all terms and conditions of the Loan Agreement and other
Loan Documents, and the prompt and full payment when due of the
Guaranteed Amount. Notwithstanding anything herein or in any other Loan
Documents to the contrary, the maximum liability of each Guarantor
hereunder shall in no event exceed such Guarantor's Maximum Guaranteed
Amount. Each Guarantor agrees that the Guaranteed Amount may at any time
exceed the aggregate Maximum Guaranteed Amount of all Guarantors
combined, without affecting or impairing the obligation of any
Guarantor hereunder.
2. Payment Obligations. If an Event of Default shall occur,
and following any notices required under Section 10.01 or Section 10.02
of the Loan Agreement, each Guarantor shall, on demand, pay the
Guaranteed Amount to Agent at its address set forth in the Loan Agreement
in immediately available funds. It shall not be necessary for Agent or
the Banks, in order to enforce such payment by any Guarantor, to
institute suit or exhaust its rights and remedies against the Borrowers,
any other Guarantor or any other Person, including others liable to pay
any Guaranteed Amount, or to enforce its rights and remedies against any
security ever given to secure payment thereof.
3. Complete Waiver of Subrogation. (a) Notwithstanding any
payment or payments made by any Guarantor hereunder, or any set-off or
application by the Agent or Banks of any security or of any credits or
claims, no Guarantor will assert or exercise any rights of the Banks or
of such Guarantor against the Borrowers to recover the amount of any
payment made by such Guarantor to the Banks hereunder by way of
subrogation, reimbursement, contribution, indemnity, or otherwise arising
by contract or operation of law, and no Guarantor shall have any right of
recourse to or any claim against assets or property of either Borrower,
whether or not the Obligations of the Borrowers have been satisfied, all
of such rights being herein expressly waived by all Guarantors. Each
Guarantor agrees not to seek contribution from any other Guarantor until
all of the Guaranteed Amount shall have been paid in full. If any amount
shall nevertheless be paid to a Guarantor by the Borrowers or another
Guarantor, such amount shall be held in trust for the benefit of the
Banks and shall forthwith be paid to the Banks to be credited and applied
to the Guaranteed Amount, whether matured or unmatured. The provisions
of this paragraph shall survive the termination of this Guaranty, and any
satisfaction and discharge of the Borrowers by virtue of any payment,
court order or any federal or state law. (b) Notwithstanding the
<PAGE>
provisions of the preceding clause (a), each Guarantor shall have and be
entitled to (i) all rights of subrogation otherwise provided by Law in
respect of any payment it may make or be obligated to make under this
Guaranty and (ii) all claims it would have against the Borrowers or any
other Guarantor in the absence of the preceding clause (a), and to assert
and enforce same, in each case on and after, but at no time prior to, the
date (the "Subrogation Trigger Date") which is 400 days after the date on
which the Obligations have been paid in full and the Commitment
terminated, if and only if (x) no Event of Default of the type described
in Section 10.01(c) or Section 10.01(d) of the Loan Agreement with
respect to the Borrowers or any other Guarantor has existed at any time
on and after the date of this Guaranty to and including the Subrogation
Trigger Date and (y) the existence of the Guarantor's rights under this
clause (b) would not make the Guarantor a creditor (as defined in the
Bankruptcy Code) of either of Borrowers or any other Guarantor in any
insolvency, bankruptcy, reorganization or similar proceeding commenced on
or prior to the Subrogation Trigger Date.
C. TERMS OF GUARANTY
1. Continuing Guaranty. Each Guarantor agrees that the
Guaranteed Amount and Loan Documents may be extended or renewed, and the
Revolving Credit Loans repaid and reborrowed in whole or in part, without
notice to or assent by such Guarantor, and that it will remain bound upon
this Guaranty notwithstanding any extension, renewal or other alteration
of any Guaranteed Amount or Loan Documents, or any repayment and
reborrowing of the Revolving Credit Loans. Each Guarantor waives notice
of acceptance of this Guaranty, presentation, demand, protest, notice of
protest for nonpayment, diligence in bringing suits against any Person
liable on any Guaranteed Amount, and any other notices or defenses of any
kind. The obligations of each Guarantor under this Guaranty shall be
absolute, unconditional and irrevocable, and shall be performed strictly
in accordance with the terms hereof under any circumstances whatsoever,
including without limitation:
(a) any extension, renewal, modification, settlement,
compromise, waiver or release in respect of any Guaranteed
Amount, including any reduction or termination of the
Commitment;
(b) any extension, renewal, amendment, modification, rescission,
waiver or release in respect of any Loan Documents;
(c) any release, exchange, substitution, non-perfection or
invalidity of, or failure to exercise rights with respect to,
any direct or indirect security for any Guaranteed Amount,
including the release of any Guarantor or other Person liable on
any Guaranteed Amount;
(d) any change in the corporate existence, structure or
ownership of either of Borrowers or any Guarantor, or any
insolvency, bankruptcy, reorganization or other similar
proceeding affecting either of Borrowers or any Guarantor or any
of their assets;
(e) the existence of any claim, defense, set-off or other rights
or remedies which either of Borrowers or any Guarantor may have
at any time against either of Borrowers, any Bank, any other
Guarantor or any other Person, whether in connection with this
Guaranty, the Loan Documents, the transactions contemplated
thereby or any other transactions;
<PAGE>
(f) any invalidity or unenforceability for any reason of the
Loan Agreement or other Loan Documents, or any provision of Law
purporting to prohibit the payment or performance by either of
Borrowers or any Guarantor of the Guaranteed Amount or Loan
Documents, or of any other obligation to the Banks; or
(g) any other circumstances or happening whatsoever, whether or
not similar to any of the foregoing.
2. Payments With Respect to Guaranteed Amount. Each payment on
the Guaranteed Amount shall be deemed to have been made by the Company
unless express written notice is given to the Agent at the time of such
payment that such payment is made by a specific Guarantor.
3. Effect of Debtor Relief Laws. If after receipt of any
payment of, or proceeds of any security applied (or intended to be
applied) to the payment of all or any part of the Guaranteed Amount, the
Agent or the Banks is for any reason compelled to surrender or
voluntarily surrenders, such payment or proceeds to any Person, (a)
because such payment or application of proceeds is or may be avoided,
invalidated, declared fraudulent, set aside, determined to be void or
voidable as a preference, fraudulent conveyance, impermissible set-off or
a diversion of trust funds; or (b) for any other reason, including
without limitation (i) any judgment, decree or order of any court or
administrative body having jurisdiction over the Agent or any Bank or its
properties, or (ii) any settlement or compromise of any such claim
effected by any Bank with any such claimant (including either of
Borrowers), then the Guaranteed Amount or part thereof intended to be
satisfied shall be reinstated and continue and this Guaranty shall
continue in full force as if such payment or proceeds have not been
received, notwithstanding any revocation thereof or the cancellation of
any Note or any other instrument evidencing any Guaranteed Amount or
otherwise; and each Guarantor shall be liable to pay such Bank, and
hereby does indemnify, jointly and severally, such Bank and hold it
harmless for, the amount of such payment or proceeds so surrendered and
all expenses (including reasonable attorneys' fees, court costs and
expenses attributable thereto) incurred by the Bank in the defense of any
claim made against it that any payment or proceeds received by the Bank
in respect of all or part of the Guaranteed Amount must be surrendered.
The provisions of this paragraph shall survive the termination of this
Guaranty, and any satisfaction and discharge of the Company by virtue of
any payment, court order or any federal or state law.
D. REPRESENTATIONS AND COVENANTS
1. Representations and Warranties. Each Guarantor hereby
represents and warrants that all representations and warranties set forth
in Article VII of the Loan Agreement with respect to it are true and
correct as of the date hereof, and are incorporated herein by reference.
2. Covenants. Each Guarantor hereby jointly and severally
expressly assumes, confirms and agrees to perform, observe and be bound
by all conditions and covenants set forth in the Loan Agreement, to the
extent applicable to it, as if it were a signatory thereto.
<PAGE>
E. GENERAL
1. Parties Bound. This Guaranty is for the benefit of the Agent
and Banks, their respective successors and assigns, and in the event of
an assignment by any Bank of a Guaranteed Amount, the rights and benefits
hereunder, to the extent applicable to the Guaranteed Amount so assigned,
shall be automatically transferred therewith. This Guaranty is binding
not only on each Guarantor, but on each of their successors and assigns.
2. Modification and Amendment. No modification, consent,
amendment or waiver of any provision of this Guaranty, nor consent to any
departure by any Guarantor therefrom, shall be effective unless the same
shall be in writing and signed by the Agent and Majority Banks, and then
shall be effective only in the specific instance and for the purpose for
which given.
3. Waiver. No delay or omission by the Agent or Banks in
exercising any right or remedy hereunder shall impair any such right or
remedy or be construed as a waiver thereof or any acquiescence therein,
nor shall any single or partial exercise of any such right or remedy
preclude other or further exercise thereof, or the exercise of any other
right or remedy hereunder.
4. Cumulative Rights. If any Guarantor is or becomes liable for
any indebtedness owing by either of Borrowers to any Bank by endorsement
or otherwise than under this Guaranty, such liability shall not be in any
manner impaired or affected hereby, and the rights or remedies of the
Banks hereunder shall be cumulative of all other rights or remedies that
the Banks may ever have against the Guarantors. The exercise by the
Agent or the Banks of any rights or remedies hereunder or under any other
instrument, or at law or in equity, shall not preclude the concurrent or
subsequent exercise of any other rights or remedies. Without limitation
of the foregoing, it is specifically understood and agreed that this
Guaranty is given by each Guarantor as an additional guaranty to any and
all other guaranties heretofore or hereafter executed and delivered to
any of the Banks by any Guarantor, and nothing herein shall ever be
deemed to replace or be in lieu of any other of such previous or
subsequent guaranties.
5. Interest; Limitations of Law. All agreements between each
Guarantor and the Agent and Banks, whether now existing or hereafter
arising and whether written or oral, are expressly limited so that in no
contingency or event whatsoever, whether by reason of acceleration of
payment of any of the Guaranteed Amount or otherwise, shall the amount
paid or agreed to be paid to any Bank for the use, forbearance or
detention of funds advanced pursuant to any Loan Documents or for the
performance or payment of any covenant or obligation contained in any
Loan Documents exceed the maximum amount permitted by applicable law. If
from any circumstance whatsoever, fulfillment of any provision of any
Loan Documents, at the time performance of such provision shall be due,
shall involve transcending the limit of validity prescribed by applicable
law, then, ipso facto, the obligation to be fulfilled shall be reduced to
the limit of such validity, and if from any circumstance Bank shall ever
receive anything of value deemed excess interest by applicable law, an
amount equal to any such excess interest shall be applied to the
reduction of the principal amount owing under the Loan Documents, and not
to the payment of interest, or if such excess interest exceeds the unpaid
principal balance, such excess interest shall be promptly refunded to the
Borrowers or Guarantor, as applicable. All sums paid or agreed to be
paid for the use, forbearance or detention of any funds advanced pursuant
to the Loan Documents shall, to the extent permitted by applicable law,
be amortized, prorated, allocated and spread throughout the full term of
<PAGE>
this Agreement until payment in full, so that the rate of interest on
account of the Guaranteed Amount is uniform throughout the term hereof.
6. Subordination. Each Guarantor hereby expressly agrees that
any obligation of the Borrowers to any Guarantor is expressly subordinate
to the right of the Banks to payment and performance by the Borrowers of
the Guaranteed Amount and Loan Documents, and that the Banks shall be
entitled to such full payment and performance prior to the exercise by
any Guarantor of any rights, including realization upon any security, to
enforce the payment or performance of any obligation that the Borrowers
may owe to any Guarantor; provided that, Guarantors shall be entitled to
receive payments from the Borrowers with respect to such obligations if
at the time of such payment no Event of Default exists or would exist
immediately after giving effect to any such payment.
7. Costs and Expenses. Each Guarantor agrees, jointly and
severally, to pay to the Agent all costs and expenses (including court
costs and attorneys' fees) incurred by the Banks in the enforcement of
this Guaranty and all other Loan Documents.
8. Notices. Unless otherwise provided herein, all notices,
requests, consents and demands shall be in writing and shall be
personally delivered, sent by telecopy of telex (answerback received), or
mailed, by certified mail, postage prepaid, to the following addresses:
(a) If to the Agent and Banks:
First Interstate Bank of Texas, N.A.
309 West Seventh Street, Suite 1100
Fort Worth, Texas 76102
Attention: Steve Wood
(b) If to any Guarantor:
[Name of Guarantor]
c/o AmeriCredit Corp.
200 Bailey
Fort Worth, Texas 76107
Attention: Chief Financial Officer
or to such other address as any party may designate in written notice to
the other parties. All notices, requests, consents and demands hereunder
will be effective when so personally delivered or sent by telecopy of
telex, or two days after being so mailed.
9. Counterparts. This Guaranty may be executed in any number of
counterparts, all of which taken together shall constitute one and the
same instrument. In making proof of this Guaranty, it shall not be
necessary to produce or account for any counterpart other than one signed
by the party against which enforcement is sought.
10. Governing Law. This Guaranty shall be deemed a contract
made in Fort Worth, Texas, and shall be construed and governed by the
laws of Texas and the United States of America. Without excluding any
other jurisdiction, each Guarantor hereby agrees that the courts of Texas
and federal courts sitting in Texas will have jurisdiction over
proceedings in connection herewith.
<PAGE>
11.ENTIRE AGREEMENT. THIS GUARANTY REPRESENTS THE FINAL
AGREEMENT AMONG THE PARTIES RELATING TO THE SUBJECT MATTER HEREOF AND MAY
NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT
ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS
AMONG THE PARTIES.
IN WITNESS WHEREOF, each Guarantor has executed this Guaranty as of the
date first set forth above.
URCARCO OPERATING CO., INC.,
a Delaware corporation
By: _______________________________
Name: _____________________________
Title: _____________________________
AMERICREDIT PREMIUM FINANCE, INC.,
a Delaware corporation
By: ________________________________
Name: ______________________________
Title: _____________________________
ACF INVESTMENT CORP., a Delaware
corporation
By: ________________________________
Name: ______________________________
Title: _____________________________
<PAGE>
EXHIBIT "C"
REQUEST FOR BORROWING FLOATING PRIME BORROWING
Date:
---------------------------------------------
First Interstate Bank of Texas, N.A.
309 W. Seventh Street, Suite 1100
Fort Worth, Texas 76102
Re: Request For Floating Prime Borrowing
This Request for Borrowing has been prepared and is being
delivered to Agent pursuant to Section 2.02(a) of that certain Revolving
Credit Agreement ("Agreement") dated as of September 21, 1994 by and
among AmeriCredit Corp., a Texas corporation ("Company"), AmeriCredit
Financial Services, Inc., a Delaware corporation, the Guarantors, and
First Interstate Bank of Texas, N.A., as Agent, and "Banks." Capitalized
terms shall have the meanings assigned to them in the Agreement unless
otherwise provided herein or the context hereof otherwise requires.
On this date the undersigned does hereby request that Banks make
an Advance for a Floating Prime Borrowing (i) in the aggregate principal
amount of $_________________ (such amount shall be in an integral multiple
of $100,000.00 unless such a Borrowing would exhaust the Total Commitment
in which case, such amount may be in an amount of the unused portion of
the Total Commitment) (ii) on ____________________, 199___.
The undersigned (in his representative capacity and not in his
individual capacity) hereby represents and warrants to Agent and Banks
that all of the representations and warranties contained in Article VII
of the Agreement (except Section 7.07) are true and correct in all
material respects as of the date hereof, with the same force and effect
as if made on the date hereof, and that no Event of Default or condition,
event or act which with the giving of notice or lapse of time, or both,
would constitute an Event of Default exists and is continuing on this
date, unless noted below (if such a condition, event or act is so noted,
there shall also be noted below the nature, period of existence thereof
and the action which the Company is taking or proposes to take with
respect thereto):
AMERICREDIT CORP.
By:__________________________________
Name: _______________________________
Title: ______________________________
<PAGE>
EXHIBIT "D"
REQUEST FOR BORROWING - EURODOLLAR BORROWING
Date:
------------------------------------------
First Interstate Bank of Texas, N.A.
309 W. Seventh Street, Suite 1100
Fort Worth, Texas 76102
Re: Request For Eurodollar Borrowing
This Request for Borrowing has been prepared and is being
delivered to Agent pursuant to Section 2.02(a) of that certain Revolving
Credit Loan Agreement ("Agreement") dated as of September 21, 1994, by
and among AmeriCredit Corp., a Texas corporation ("Company"), AmeriCredit
Financial Services, Inc., a Delaware corporation, the Guarantors, First
Interstate Bank of Texas, N.A., as Agent, and the "Banks." Capitalized
terms shall have the meanings assigned to them in the Agreement unless
otherwise provided herein or the context hereof otherwise requires.
(Check applicable box below.)
/ / [For New Advances] On this date the undersigned does hereby request
that Banks make Advances for a Eurodollar Borrowing (i) in the aggregate
principal amount of $_________________ (such amount shall be in an integral
multiple of $1,000,000.00), (ii) for the following Interest Period
(one (1), two (2) or three (3) months), (iii) on ____________ , 199
(which date shall be at least three (3) Eurodollar Business Days after
the date on which this Request for Borrowing shall be submitted to
Agent). After taking into account the Borrowing requested hereby, the
total number of unpaid Eurodollar Borrowings does not exceed five (5).
/ / [For Rollover Notices] On this date the undersigned does hereby
request a Eurodollar Borrowing (i) in the aggregate principal amount of
$__________________(such amount shall be in an integral multiple of
$1,000,000.00), (ii) for the following Interest Period ____________(one
(1), two (2) or three (3) months), (iii) on _________________, 199 ____
(which date shall be at least three (3) Eurodollar Business Days after
the date on which this Request for Borrowing shall be submitted to
Agent). After taking into account the Borrowing requested hereby, the
total number of unpaid Eurodollar Borrowings does not exceed five (5).
This Request for Borrowing shall serve as a Rollover Notice under
Section 2.02(c) of the Agreement, with respect to the Eurodollar
Borrowing made on ___________________, 199 ___ ("Prior Borrowing"). This
Rollover Notice is being submitted at least three (3) Eurodollar Business
Days (if the Prior Borrowing was a Eurodollar Borrowing) prior to the
termination of the Interest Period for the Prior Advance.
The undersigned (in his representative capacity and not in his
individual capacity) hereby represents and warrants to Agent and Banks
that all of the representations and warranties contained in Article VII
of the Agreement (except Section 7.07) are true and correct in all
material respects as of the date hereof, with the same force and effect
as if made on the date hereof, and that no Event of Default or condition,
event or act which with the giving of notice or lapse of time, or both,
would constitute an Event of Default, exists and is continuing on this
date, unless noted below (if such a condition, event or act is so noted,
there shall also be noted below the nature, period of existence thereof
and the action which the Company is taking, or proposes to take with
respect thereto):
<PAGE>
AMERICREDIT CORP.
By _________________________________
Name: _______________________________
Title:_______________________________
<PAGE>
EXHIBIT "E"
CONFIRMATION OF
REQUEST FOR BORROWING - FLOATING PRIME BORROWING
Date:
---------------------------------------
First Interstate Bank of Texas, N.A.
309 W. Seventh Street, Suite 1100
Fort Worth, Texas 76102
Re: Request For Floating Prime Borrowing
This Confirmation of Request for Borrowing has been prepared and
is being delivered to Agent pursuant to Section 2.02(a) of that certain
Revolving Credit Agreement ("Agreement") dated as of September 21, 1994
by and among AmeriCredit Corp., a Texas corporation ("Company"),
AmeriCredit Financial Services, Inc., a Delaware corporation, the
Guarantors, First Interstate Bank of Texas, N.A., as Agent, and the
"Banks" as defined therein. Capitalized terms shall have the meanings
assigned to them in the Agreement unless otherwise provided herein or the
context hereof otherwise requires.
On ___________________ the undersigned requested that Banks make
Floating Prime Advances in the aggregate principal amount of $____________
on ______________________, 199___.
The undersigned (in his representative capacity and not in his
individual capacity) hereby represents and warrants to Agent and Banks
that all of the representations and warranties contained in Article VII
of the Agreement (except Section 7.07) are true and correct in all
material respects as of the date hereof, with the same force and effect
as if made on the date hereof, and that no Event of Default or condition,
event or act which with the giving of notice or lapse of time, or both,
would constitute an Event of Default exists and is continuing on this
date, unless noted below (if such a condition, event or act is so noted,
there shall also be noted below the nature, period of existence thereof
and the action which the Company is taking or proposes to take with
respect thereto):
AMERICREDIT CORP.
By:__________________________________
Name:________________________________
Title: ______________________________
<PAGE>
EXHIBIT "F"
CONFIRMATION OF
REQUEST FOR BORROWING - EURODOLLAR BORROWING
Date:
-----------------------------------------
First Interstate Bank of Texas, N.A.
309 W. Seventh Street, Suite 1100
Fort Worth, Texas 76102
Re: Request For Eurodollar Borrowing
This Confirmation of Request for Borrowing has been prepared and
is being delivered to Agent pursuant to Section 2.02(a) of that certain
Revolving Credit Agreement ("Agreement") dated as of September 21, 1994,
by and among AmeriCredit Corp., a Texas corporation ("Company"),
AmeriCredit Financial Services, Inc., a Delaware corporation, the
Guarantors, First Interstate Bank of Texas, N.A., as agent, and the
"Banks" as defined therein. Capitalized terms shall have the meanings
assigned to them in the Agreement unless otherwise provided herein or the
context hereof otherwise requires.
On ___________________ the undersigned requested that Banks make
Eurodollar Advances (i) in the aggregate principal amount of $___________,
(ii) for the following Interest Period _____________ (one (1), two (2) or
three (3) months), (iii) on ______________, 199___. After taking into
account such Borrowing, the total number of unpaid Eurodollar Borrowing
does not exceed five (5).
The undersigned (in his representative capacity and not in his
individual capacity) hereby represents and warrants to Agent and Banks
that all of the representations and warranties contained in Article VII
of the Agreement (except Section 7.07) are true and correct in all
material respects as of the date hereof, with the same force and effect
as if made on the date hereof, and that no Event of Default or condition,
event or act which with the giving of notice or lapse of time, or both,
would constitute an Event of Default, exists and is continuing on this
date, unless noted below (if such a condition, event or act is so
noted, there shall also be noted below the nature, period of existence
thereof and the action which the Company is taking, or proposes to take
with respect thereto):
AMERICREDIT CORP.
By: _________________________________
Name: _______________________________
Title: ______________________________
<PAGE>
EXHIBIT "G"
TO REVOLVING CREDIT AGREEMENT
BETWEEN AMERICREDIT CORP., ET AL, AND
FIRST INTERSTATE BANK OF TEXAS, N.A., ET AL.
LITIGATION
<PAGE>
EXHIBIT "H"
TO REVOLVING CREDIT AGREEMENT
BETWEEN AMERICREDIT CORP., ET AL, AND
FIRST INTERSTATE BANK OF TEXAS, N.A., ET AL.
COMPLIANCE WITH LAW
None
<PAGE>
EXHIBIT "I"
TO REVOLVING CREDIT AGREEMENT
BETWEEN AMERICREDIT CORP., ET AL, AND
FIRST INTERSTATE BANK OF TEXAS, N.A., ET AL.
ENVIRONMENTAL MATTERS
<PAGE>
EXHIBIT "J"
ASSIGNMENT AND ACCEPTANCE
Dated: ______________, 19_____
Reference is made to the Revolving Credit Agreement dated as of
September 21, 1994 (as amended from time to time, the "Loan Agreement")
among AMERICREDIT CORP., a Texas corporation, AMERICREDIT FINANCIAL
SERVICES, INC., a Delaware corporation, (collectively the "Borrowers"), the
Guarantors named therein, the Banks named therein, and FIRST INTERSTATE
BANK OF TEXAS, N.A., as Agent. Capitalized terms not otherwise defined
herein shall have the meanings specified in the Loan Agreement.
__________________________________, acting as one of the Banks
referred to in the Loan Agreement (the "Assignor"), and
__________________________________(the "Assignee") agree as follows:
1. The Assignor hereby sells and assigns to the Assignee, and the
Assignee hereby purchases and assumes from the Assignor, that interest in
and to a portion of the Assignor's rights and obligations as of the date
hereof under the Loan Agreement and the other Loan Documents sufficient to
give the Assignee the percentage interest specified in Section 1 of
Schedule 1 hereto of all outstanding rights and obligations under the Loan
Agreement and the other Loan Documents. Such sale and assignment shall
[include] [exclude] a proportionate share of the loan origination fee
previously paid to Assignor pursuant to Section 2.01(d) of the Loan
Agreement, [the amounts of such proportionate shares being specified in
Section 2 of Schedule 1 hereto]. After giving effect to such sale and
assignment, the respective Commitments of and amounts of the Loans owing to
the Assignor and the Assignee will be as set forth in Section 3 of Schedule
1 hereto.
2. The Assignor (i) represents and warrants that it (a) is the
legal and beneficial owner of the interest being assigned by it hereunder
and that such interest is free and clear of any adverse claim and (b) to
its knowledge (1) there exists no Event of Default, or event which with the
giving of notice or the passage of time or both, would constitute and Event
of Default and (2) it has not waived any material provision of any Loan
Document; (ii) makes no representation or warranty and assumes no
responsibility with respect to any statements, warranties or
representations made by another Person in or in connection with the Loan
Documents or the execution, legality, validity, enforceability,
genuineness, sufficiency or value of the Loan Documents or any other
instrument or document furnished pursuant thereto; (iii) makes no
representation or warranty and assumes no responsibility with respect to
the financial condition of the Borrowers or any other Person or the
performance or observance by the Borrowers or any other Person of any of
its obligations under the Loan Documents or any other instrument or
document furnished pursuant thereto; and (iv) will deliver the Note issued
to it pursuant to the Credit Agreement to the Agent concurrently with the
presentation hereof to the Agent for acceptance and requests that, upon
receipt of such Note, the Agent shall exchange such Note for a new Note
[new Notes] payable to the order of the Assignee in an amount equal to the
Commitment assumed by the Assignee pursuant hereto [and the Assignor in an
amount equal to the Commitment retained by the Assignor under the Loan
Agreement, respectively], as specified in Section 4 of Schedule 1 hereto.
3. The Assignee (i) confirms that it has received a copy of the
Loan Agreement and the other Loan Documents, together with copies of the
financial statements referred to in Section 7.07 thereof and such other
documents and information as it has deemed appropriate to make its own
credit analysis and decision to enter into this Assignment and Acceptance;
(ii) agrees that it will, independently and without reliance upon the
<PAGE>
Assignor or any other of the Banks and based on such documents and
information as it shall deem appropriate at the time, continue to make its
own credit decisions in taking or not taking action under the Loan
Agreement; (iii) confirms that it is an Eligible Assignee; (iv) appoints
and authorizes the Agent to take such action on its behalf and to exercise
such powers under the Loan Agreement and the other Loan Documents as are
delegated to such Person by the terms thereof, together with such powers as
are reasonably incidental thereto; (v) agrees that it will perform in
accordance with their terms all of the obligations which by the terms of
the Loan Agreement and the other Loan Documents are required to be
performed by it as a Bank; and (vi) specifies as its domestic lending
office (and address for notices) and Eurodollar lending office the offices
set forth in Section 5 of Schedule 1 hereto; and (vii) represents that it
is either (y) a corporation organized under the laws of the United States,
a state thereof or the Distinct of Columbia or (z) presently entitled to
complete exemption from United States withholding tax imposed on or with
respect to any payments, including fees, to be made to it pursuant to the
Loan Agreement (A) under an applicable provision of a tax convention or
treaty to which the United States is a party or (B) because it is acting
through a branch, agency or office in the United States and any payment to
be received by it under the Loan Agreement is effectively connected with a
trade or business in the United States.
4. Following the execution of this Assignment and Acceptance by
the Assignor and the Assignee, it will be delivered to the Agent for the
approval of [the Borrowers the Agent and acceptance by the Agent, and the
effective date of this Assignment and Acceptance (the "Effective Date")
shall be the date on which such approval and acceptance has occurred.
5. Upon the Effective Date, (i) the Assignee shall be a party to
the Loan Agreement and, to the extent provided in this Assignment and
Acceptance, have the rights and obligations of a Bank thereunder and (ii)
the Assignor shall, to the extent provided in this Assignment and
Acceptance, relinquish its rights and be released from its obligations
under the Loan Agreement.
6. From and after the Effective Date, the Agent shall make all
payments under the Loan Agreement and the other Loan Documents in respect
of the interest assigned hereby (including, without limitation, all
payments of principal, interest and commitment fees with respect thereto)
to the Assignee. The Assignor and Assignee shall make all appropriate
adjustments in payments and fundings under the Loan Agreement and the other
Loan Documents for periods prior to the Effective Date directly between
themselves.
7. This Assignment and Acceptance shall be governed by, and
construed in accordance with, the laws of the State of Texas (without
giving effect to the conflict of law principles thereof) and applicable
federal law. This Assignment and Acceptance may be executed in any number
of counterparts and by different parties hereto in separate counterparts,
each of which when so executed and delivered shall be deemed to be an
original and all of which taken together shall constitute but one and the
same instrument. This Assignment and Acceptance shall be binding upon and
inure to the benefit of the Assignor and the Assignee and their respective
successors and assigns.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Assignment
and Acceptance to be executed by their respective officers thereunto duly
authorized effective as of the date first above written.
Attachments: ASSIGNOR:
Schedule 1
By:_________________________________________
Name:_______________________________________
Title:______________________________________
ASSIGNEE:
____________________________________________
By:_________________________________________
Name:_______________________________________
Title:______________________________________
Approved this ____ day of _____________________, 199__.
AMERICREDIT CORP.
By:__________________________________________
Name:________________________________________
Title:_______________________________________
AMERICREDIT FINANCIAL SERVICES, INC.
By:__________________________________________
Name:________________________________________
Title:_______________________________________
FIRST INTERSTATE BANK OF TEXAS,
N.A., as Agent
By:__________________________________________
Name:________________________________________
Title:_______________________________________
<PAGE>
SCHEDULE
to
Assignment and Acceptance
Dated _____________, 199____.
Section 1.
Percentage Interest acquired by
Assignee relative to all Banks _______________________________
Section 2.
1.Assignee's proportionate share of
loan origination fee previously
paid to Assignor pursuant to
Section 2.01(d) of the Loan
Agreement:
$ ________________________________
Section 3.
1.Assignee's Acquired Interest.
Assignee's Commitment: $ _________________________________
Aggregate outstanding principal
amount of Loans owing to the
Assignee: $ _________________________________
2.Assignor's Retained Interest.
Assignor's Commitment: $ _________________________________
Aggregate outstanding principal
amount of Loans owing to the
Assignor: $ _________________________________
Section 4.
1.A Note payable to the order of the Assignee in the principal amount
of $______________________________.
2.A Note payable to the order of the Assignor in the principal amount
of $______________________________.
Section 5.
Domestic Lending Office Eurodollar Lending Office
_______________________________ ______________________________
_______________________________ ______________________________
_______________________________ ______________________________
EXHIBIT 11.1
AMERICREDIT CORP.
STATEMENT RE COMPUTATION OF PER SHARE EARNINGS
(dollars in thousands, except per share amounts)
<TABLE>
<CAPTION> Three Months Ended
September 30,
------------------
1994 1993
---- ----
<S> <C> <C>
PRIMARY:
Average common shares outstanding. . . . . 28,749,452 29,129,435
Common share equivalents resulting from
assumed exercise of stock options
and warrants . . . . . . . . . . . . . . 1,372,758 2,712,653
---------- ----------
Average common shares and share equivalents
outstanding. . . . . . . . . . . . . . . 30,122,210 31,842,088
========== ==========
FULLY DILUTED:
Average common shares outstanding. . . . . 28,749,452 29,129,435
Common share equivalents resulting from
assumed exercise of stock options
and warrants . . . . . . . . . . . . . . 1,567,739 2,845,969
---------- ----------
Average common shares and share
equivalents outstanding. . . . . . . . . 30,317,191 31,975,404
========== ==========
NET INCOME . . . . . . . . . . . . . . . . $ 1,801 $ 1,135
========== ==========
EARNINGS PER SHARE:
Primary. . . . . . . . . . . . . . . . . $ .06 $ .04
========== ==========
Fully diluted. . . . . . . . . . . . . . $ .06 $ .04
========== ==========
</TABLE>
Primary earnings per share has been computed by dividing net income by the
average common shares and share equivalents outstanding. Common share
equivalents were computed using the treasury stock method. The average common
stock market price for the period was used to determine the number of common
share equivalents.
Fully diluted earnings per share has been computed in the same manner as
primary earnings per share except that the higher of the average or end of
period common stock market price was used to determine the number of common
share equivalents.
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
The Schedule contains summary financial information extracted from the
consolidated financial statements of AmeriCredit Corp. included in its quarterly
report on Form 10-Q and is qualified in its entirety by reference to such
financial statements.
</LEGEND>
<CIK> 0000804269
<NAME> AMERICREDIT CORP.
<MULTIPLIER> 1000
<S> <C>
<PERIOD-TYPE> 3-MOS
<FISCAL-YEAR-END> JUN-30-1995
<PERIOD-START> JUL-01-1994
<PERIOD-END> SEP-30-1994
<CASH> 49
<SECURITIES> 19470
<RECEIVABLES> 106433
<ALLOWANCES> (10875)
<INVENTORY> 0
<CURRENT-ASSETS> 0
<PP&E> 9208
<DEPRECIATION> (3757)
<TOTAL-ASSETS> 123423
<CURRENT-LIABILITIES> 0
<BONDS> 347
<COMMON> 318
0
0
<OTHER-SE> 121001
<TOTAL-LIABILITY-AND-EQUITY> 123423
<SALES> 0
<TOTAL-REVENUES> 5661
<CGS> 0
<TOTAL-COSTS> 0
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 654
<INTEREST-EXPENSE> 49
<INCOME-PRETAX> 1837
<INCOME-TAX> 36
<INCOME-CONTINUING> 0
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 1801
<EPS-PRIMARY> .06
<EPS-DILUTED> .06
</TABLE>
