Construction Loan Agreement

Exhibit 10.41


CONSTRUCTION LOAN AGREEMENT


between


ACF Investment Corp., a Delaware corporation


and


WELLS FARGO BANK, NATIONAL ASSOCIATION


Executed as of June 29, 2001


CONSTRUCTION LOAN AGREEMENT


THIS CONSTRUCTION LOAN AGREEMENT ("Agreement") is executed June 29, 2001, by and between ACF Investment Corp., a Delaware corporation ("Borrower"), and WELLS FARGO BANK, NATIONAL ASSOCIATION ("Lender").


RECITALS
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A. Borrower owns or will own certain real property described in Exhibit A
---------
hereto ("Property").


B. Borrower proposes to construct on the Property certain improvements
consisting of: 247,187 sq ft, three story office building together with all
appurtenances, fixtures, and tenant improvements now or hereafter located
on the Property ("Improvements"). The Improvements shall be constructed in
accordance with plans and specifications which Borrower has heretofore, or
will hereafter deliver to Lender, as amended in order to comply with the
terms and conditions of this Agreement ("Plans and Specifications").
Borrower has requested from Lender a loan for the purpose of such
construction.


NOW, THEREFORE, Borrower and Lender agree as follows:


ARTICLE 1. DEFINITIONS


1.1 DEFINED TERMS. The following capitalized terms generally used in this
-------------
Agreement shall have the meanings defined or referenced below. Certain
other capitalized terms used only in specific sections of this
Agreement are defined in such sections.


"Account" - means an account with Lender, account number 4950040360,
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in the name of Borrower or Borrower's designee into which Loan
proceeds will be deposited.


"ADA" - means the Americans with Disabilities Act, 42 U.S.C. (SS)
---
12101, et. seq. as now or hereafter amended or modified.


"Affidavit of Commencement" - shall have the meaning ascribed to such
-------------------------
term in that certain Section entitled Commencement of Construction.
----------------------------


"Affidavit of Completion" - shall have the meaning ascribed to such
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term in that certain Section entitled Completion of Construction.
--------------------------


"Agreement" - shall have the meaning ascribed to such term in the
---------
preamble hereto.


"Architect" - means Carter & Burgess, Inc.
---------


"Architect's Agreement" - means that certain agreement dated September
---------------------
18, 2000, by and between Borrower and Architect.


"Bankruptcy Code" - means the Bankruptcy Reform Act of 1978 (11 USC
(S) 101-1330) as now or hereafter amended or recodified.


"Borrower" - means ACF Investment Corp., a Delaware corporation.
--------


"Borrower's Funds" - means all funds of Borrower deposited with Lender
----------------
pursuant to the terms and conditions of this Agreement.


"Borrower's Funds Account" - means the account with Lender into which
------------------------
all funds deposited with Lender pursuant to this Agreement shall be
placed.


"Business Day" - means a day of the week (but not a Saturday, Sunday
------------
or holiday) on which the offices of Lender are open to the public for
carrying on substantially all of Lender's business functions. Unless
specifically referenced in this Agreement as a Business Day, all
references to "days" shall be to calendar days.


"Completion Date" - means October 1, 2002, the date by which
---------------
construction of the Improvements must be complete.


"Construction Agreements" - means those certain agreements to
-----------------------
construct the Improvements dated February 5, 2001, March 29, 2001 and
May 10, 2001, between Borrower and Contractor.


"Contractor" - means Hensel Phelps Construction Co.; R. J. Miller &
----------
Associates and North Haven Gardens/Valley Crest.


Page 1


"Deed of Trust" - means that certain Construction Deed of Trust with
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Absolute Assignment of Leases and Rents, Security Agreement and Fixture
Filing of even date herewith executed by ACF Investment Corp., a
Delaware Corporation, as Grantor, to Stephen C. Melton, as Trustee, for
the benefit of Lender, as Beneficiary, as hereafter amended,
supplemented, replaced or modified.


"Default" - shall have the meaning ascribed to such term in that
-------
certain Section entitled Default.
-------


"Effective Date" - means the date that the Loan Documents are
--------------
unconditionally executed and delivered by Borrower and Lender.


"First Extended Maturity Date" - means November 1, 2005.
----------------------------


"First Option to Extend" - means Borrower's option, subject to the
----------------------
terms and conditions of that certain Section entitled First Option to
---------------
Extend, to the term of the Loan from the Maturity Date to the First
------
Extended Maturity Date.


"Gross Operating Income" - Intentionally omitted.
----------------------


"Guarantor" - means AmeriCredit Financial Services, Inc., a Delaware
---------
corporation and AmeriCredit Corp., a Texas corporation (collectively
or severally as the context thereof may suggest or require).


"Hazardous Materials" - shall have the meaning ascribed to such term
-------------------
in that certain Section entitled Hazardous Materials
-------------------


"Hazardous Materials Claims" - shall have the meaning ascribed to such
--------------------------
term in that certain Section entitled Hazardous Materials Claims
--------------------------


"Hazardous Materials Laws" - shall have the meaning ascribed to such
------------------------
term in that certain Section entitled Hazardous Materials Laws
------------------------


"Improvements" - shall have the meaning ascribed to such term in
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Recital B.


"Indemnitor" - means AmeriCredit Financial Services, Inc., a Delaware
----------
corporation, and any other person or entity who, or which, in any
manner, is or becomes obligated to Lender under any indemnity now or
hereafter executed in connection with respect to the Loan (collectively
or severally as the context thereof may suggest or require).


"Indebtedness" - means all principal, interest and other charges
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payable by Borrower to Lender pursuant to the Note and all other sums
which may become payable by Borrower to Lender pursuant to the other
Loan Documents.


"Lender" - means WELLS FARGO BANK, NATIONAL ASSOCIATION.
------


"Loan" - means the principal sum that Lender agrees to lend and
----
Borrower agrees to borrow pursuant to the terms and conditions of this
Agreement: Twenty Four Million Seven Hundred Eighty Thousand and
OO/lOOths Dollars ($24,780,000.00).


"Loan Documents" - means those documents, as hereafter amended,
--------------
supplemented, replaced or modified, properly executed and in recordable
form, if necessary, listed in Exhibit B as Loan Documents.
---------


"Loan-to-Value Percentage" - shall have the meaning ascribed to such
------------------------
term in that certain Section entitled Appraisal Requirement
---------------------


"Maturity Date" - means November 1, 2002.
-------------


"Maximum Lawful Rate" - shall have the meaning ascribed to such term
-------------------
in that certain Section entitled Interest Provisions
-------------------


"Non-Borrower Grantor" - not applicable.
--------------------


"Note" - means that certain Promissory Note of even date herewith, in
----
the original principal amount of the Loan, executed by Borrower and
payable to the order of Lender, as hereafter amended, supplemented,
replaced or modified.


"Operating Statement" - Intentionally omitted.
-------------------


"Other Related Documents" - means those documents, as hereafter
-----------------------
amended, supplemented, replaced or modified from time to time, properly
executed and in recordable form, if necessary, listed in Exhibit B as
---------
Other Related Documents.


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"Participant" - shall have the meaning ascribed to such term in that
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certain Section entitled Loan Sales and Participations; Disclosure of
--------------------------------------------
Information.
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"Permanent Financing Commitment" - means financing to be provided by
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Permanent Lender in a principal amount not less than $24,780,000.00.


"Permanent Lender" - means Wells Fargo Bank, Commercial Banking Group,
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Fort Worth, Texas.


"Permitted Operating Expenses" - Intentionally omitted.
----------------------------


"Plans and Specifications" - shall have the meaning ascribed to such term
------------------------
in Recital B.


"Prime Rate" - means a base rate of interest which Lender establishes from
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time to time and which serves as the basis upon which the effective rates
of interest are calculated for those loans making reference thereto. Any
change in an effective rate due to a change in the Prime Rate shall become
effective on the day each such change is announced within Lender.


"Property" - shall have the meaning ascribed to such term in Recital A.
--------


"Set Aside Letter" - not applicable.
----------------


"Subdivision Map" - shall have the meaning ascribed to such term in that
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certain Section entitled Subdivision Maps.
----------------


"Title Company" - means Chicago Title Insurance Company.
-------------


"Title Policy" - means the standard Texas promulgated form of Mortgagee
------------
Policy of Title Insurance as issued by Chicago Title Insurance Company.


1.2 EXHIBITS INCORPORATED. Exhibits A, B, C, D, E and F, all attached hereto,
--------------------- ----------------------------
are hereby incorporated into this Agreement.


ARTICLE 2. LOAN


2.1 LOAN. By and subject to the terms of this Agreement, Lender agrees to lend
----
to Borrower and Borrower agrees to borrow from Lender the principal sum of
Twenty Four Million Seven Hundred Eighty Thousand and 00/100ths Dollars
($24,780,000.00), said sum to be evidenced by the Note of even date
herewith. The Note shall be secured, in part, by the Deed of Trust, of even
date herewith, encumbering certain real property and improvements as
legally defined therein. Amounts disbursed to or on behalf of Borrower
pursuant to the Note shall be used to finance the construction of the
Property and Improvements and for such other purposes and uses as may be
permitted under this Agreement and the other Loan Documents.


2.2 LOAN FEE. Borrower shall pay to Lender, at Loan closing, a loan fee in the
--------
amount of $178,800.00, of which $61,950.00 has been prepaid by Borrower.


2.3 UNDERWRITING AND DOCUMENTATION FEE. Borrower shall pay to Lender, at Loan
----------------------------------
closing, an underwriting and documentation fee in the amount of $69,000.00,
of which $8,240.00 will be applied to the cost of the costing and
inspections fees.


2.4 LOAN DOCUMENTS. Borrower shall deliver to Lender concurrently with this
--------------
Agreement each of the documents, properly executed and in recordable form,
as applicable, described in Exhibit B as Loan Documents, together with
---------
those documents described in Exhibit B as Other Related Documents.
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2.5 EFFECTIVE DATE. The date of the Loan Documents is for reference purposes
--------------
only. The Effective Date of the parties' obligations under this Agreement
and the other Loan Documents shall be the date that the Loan Documents are
unconditionally executed and delivered by Borrower and Lender, and
Borrowers and Lender's rights and obligations under the Loan Documents
shall not be effective until the Effective Date.


2.6 MATURITY DATE. The Maturity Date of the Loan shall be November 1, 2002, at
-------------
which time all sums due and owing under this Agreement and the other Loan
Documents shall be repaid in full, provided, however, if Borrower is in
compliance on such date with Section entitled First Option to Extend, of
this Agreement and with all obligations of Borrower under the documents,
the Maturity Date will be the First Extended Maturity Date. All payments
due to Lender under this Agreement, whether at the Maturity Date or
otherwise, shall be paid in immediately available funds.


2.7 CREDIT FOR PRINCIPAL PAYMENTS. Any payment made upon the outstanding
-----------------------------
principal balance of the Loan shall be credited as of the Business Day
received, provided such payment is received by Lender no later than 1:00
P.M. (Central Time) and constitutes immediately available funds.


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Page 3


Any principal payment received after said time or which does not
constitute immediately available funds shall be credited upon such funds
having become unconditionally and immediately available to Lender.


2.8 APPRAISAL REQUIREMENT. Up to and including the Maturity Date, but no more
---------------------
than annually, at Borrower's expense, Lender may require a written
appraisal prepared in conformance with the requirements of the
Comptroller of the Currency confirming to the satisfaction of Lender that
the Loan amount as a percentage of the fair market value of the Property
and Improvements (after adjustment for senior liens and regular and
special taxes and assessments) does not exceed sixty five percent (65%)
("Loan-to-Value Percentage"); provided, however, in the event such fair
-----------------
market value is not adequate to meet the required Loan-to-Value
Percentage, then Borrower shall, within thirty (30) days after written
demand from Lender, pay down the outstanding principal balance of the
Loan such that said required Loan-to-Value Percentage may be met. The
valuation date of such appraisal shall be within thirty (30) days of
Lender's request. Any principal balance reduction shall reduce Lender's
commitment by a like amount.


2.9 APPRAISAL REQUIREMENT. (permanent phase) Upon Borrower's acceptance of the
---------------------
First Option to Extend and at Borrower's expense, Lender will require,
within ninety (90) days prior to the First Option to Extend and no more
than annually thereafter, a written appraisal prepared in conformance with
the requirements of the Comptroller of the Currency confirming to the
satisfaction of Lender that the Loan amount as a percentage of the fair
market value of the Property and Improvements (after adjustment for senior
liens and regular and special taxes and assessments) does not exceed
seventy percent (70%) ("Loan-to-Value Percentage"); provided, however, in
-------- -------
the event such fair market value is not adequate to meet the required Loan-
to-Value Percentage, then Borrower shall, within thirty (30) days after
written demand from Lender, pay down the outstanding principal balance of
the Loan such that said required Loan-to-Value Percentage may be met. The
valuation date of such appraisal shall be within thirty (30) days of
Lender's request. Any principal balance reduction shall reduce Lender's
commitment by a like amount.


2.10 FULL REPAYMENT AND RELEASE OF LIEN. Upon receipt of all sums owing and
----------------------------------
outstanding under the Loan Documents, Lender shall issue a full release
of lien covering the Property and Improvements from the lien of the Deed
of Trust; provided, however, that all of the following conditions shall
be satisfied at the time of, and with respect to, such release of lien:
(a) Lender shall have received all escrow, closing and recording costs,
the costs of preparing and delivering such release of lien and any sums
then due and payable under the Loan Documents; and (b) Lender shall have
received a written release satisfactory to Lender of any set aside
letter, letter of credit or other form of undertaking which Lender has
issued to any surety, governmental agency or any other party in
connection with the Loan and/or the Property and Improvements. Lender's
obligation to make further disbursements under the Loan shall terminate
as to any portion of the Loan undisbursed as of the date of issuance of
such full release of lien, and any commitment of Lender to lend any
undisbursed portion of the Loan shall be canceled.


2.11 FIRST OPTION TO EXTEND. Borrower shall have the option to extend the term
----------------------
of the Loan from the Maturity Date (for purposes of this Section, "Original
Maturity Date") to the First Extended Maturity Date, upon satisfaction of
each of the following conditions precedent:


(a) As of the Original Maturity Date, no Default shall have occurred and
be continuing, and no event or condition which, with the giving of
notice or the passage of time or both, would constitute a Default
shall have occurred and be continuing, and Borrower shall so certify
in writing;


(b) Borrower shall execute or cause the execution of all documents
reasonably required by Lender to exercise the First Option to Extend
and shall deliver to Lender, at Borrower's sole cost and expense, such
title insurance endorsements reasonably required by Lender;


(c) There shall have occurred no material adverse change, as determined by
Lender in its sole discretion, in the financial condition of Borrower,
any Guarantor, AmeriCredit Corp. or other person or entity in any
manner obligated to Lender under the Loan Documents from that which
existed on the Effective Date;


(d) Borrower shall have provided Lender final certificate of occupancy
together with such other governmental or regulatory permits, licenses
and approvals as are required or necessary for the use, occupancy, and
operation of the Improvements;


(e) Borrower shall provide Lender a Certificate of Completion or
equivalent indicating that the Improvements are 100% completed in
accordance with the Plans and Specifications approved by Lender
pursuant to the Building Loan Agreement. Lender shall have received an
inspection report from its consultant confirming such completion;


Page 4


(f) Lender shall have received a lien free Down-Date Endorsement pursuant
to Procedural Rule P-9b(4), and other endorsements amending the
mechanic's and materialmen's lien coverage and, if applicable,
deleting the pending disbursements clause pursuant to Procedural Rule
P-8b(2), and if applicable, a Form T38 Endorsement pursuant to
procedural Rule P-9b(3) to the Title Policy in form and content
satisfactory to Lender;


(g) Lender shall have received from Borrower a full and unconditional
written release executed by any governmental authority, surety, or
other person or entity to which Lender has issued a set aside letter
or which beneficiary under any letter of credit that Lender has issued
with respect to or in connection with the Loan;


(h) Borrower shall provide Lender with all lease agreements. All leases,
except for intercompany leases, shall require Lender's approval;


(i) Borrower shall provide evidence to Lender of updates to any other
consultant's reports, including but not limited to environmental
reports and receipt of an "as built" survey of the Property;


Except as modified by this First Option to Extend, the terms and
conditions of this Agreement and the other Loan Documents as modified
and approved by Lender shall remain unmodified and in full force and
effect.


ARTICLE 3. DISBURSEMENT


3.1 CONDITIONS PRECEDENT. Lender's obligation to make any disbursements or take
--------------------
any other action under the Loan Documents shall be subject at all times to
satisfaction of each of the following conditions precedent and those
certain conditions and requirements as set forth in Disbursement Plan,
Exhibit D:


(a) There shall exist no Default, as defined in this Agreement, or Default
as defined in any of the other Loan Documents or in the Other Related
Documents, or event, omission or failure of condition which would
constitute a Default after notice or lapse of time, or both; and


(b) Any undisbursed Loan funds together with all sums, if any, to be
provided by Borrower as shown in Exhibit C shall be at all times equal
---------
to or greater than the amount which Lender from time to time
determines necessary to: (i) pay, through completion, all costs of
development, construction, marketing and sale or leasing of the
Property and Improvements in accordance with the Loan Documents; (ii)
pay all sums which may accrue under the Loan Documents prior to
repayment of the Loan; and (iii) enable Borrower to perform and
satisfy all of the covenants of Borrower contained in the Loan
Documents. If Lender determines at any time that the undisbursed Loan
funds are insufficient for said purposes, Borrower shall deposit the
amount of such deficiency in the Borrower's Funds Account within seven
(7) days of Lender's written demand; and


(c) Lender shall have received all Loan Documents, other documents,
instruments, policies, and forms of evidence or other materials
requested by Lender under the terms of this Agreement or any of the
other Loan Documents;


(d) Lender shall have received and approved in form and substance
satisfactory to Lender: (i) a soils report for the Property and
Improvements; (ii) an environmental questionnaire and environmental
site assessment with respect to the presence, if any, of Hazardous
Materials on the Property and Improvements; (iii) two sets of the
Plans and Specifications, certified as complete by the Architect,
together with evidence of all necessary or appropriate approvals of
governmental agencies; (iv) copies of all agreements which are
material to completion of the Improvements; (v) copies of all building
permits and similar permits, licenses, approvals, development
agreements and other authorizations of governmental agencies required
in connection with the development of the Property and Improvements;
and (vi) copies of any initial study, negative declaration, mitigated
negative declaration, environmental impact report, notice of
determination or notice of exemption prepared, adopted, certified or
filed by or with any governmental agency in connection with the
Property and Improvements;


(e) Lender shall have received, within sixty (60) days of closing,
evidence satisfactory to Lender that the soils engineer and the civil
engineer has submitted written confirmation that the agreed changes in
the sub grade preparation, increased jointing and the increased
reinforcement are consistent with the soils report findings and
recommendations and that the substitutions will not lead to a
significant decrease in the useful life of the paved areas or a
material increase in future maintenance requirements.


(f) Lender shall have received fully executed subordinations in form and ...