-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, KuVsBBX1VBi3k0Oy4qouVUvmUqrBRjiTogVZeAYFgtrym1cwahe44U/6FuHfE3qm 9WnlxfHHNEHcID41MZwbVQ== 0000950134-99-004262.txt : 19990518 0000950134-99-004262.hdr.sgml : 19990518 ACCESSION NUMBER: 0000950134-99-004262 CONFORMED SUBMISSION TYPE: 10-K/A PUBLIC DOCUMENT COUNT: 6 CONFORMED PERIOD OF REPORT: 19981231 FILED AS OF DATE: 19990514 FILER: COMPANY DATA: COMPANY CONFORMED NAME: GAINSCO INC CENTRAL INDEX KEY: 0000786344 STANDARD INDUSTRIAL CLASSIFICATION: FIRE, MARINE & CASUALTY INSURANCE [6331] IRS NUMBER: 751617013 STATE OF INCORPORATION: TX FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 10-K/A SEC ACT: SEC FILE NUMBER: 001-09828 FILM NUMBER: 99624684 BUSINESS ADDRESS: STREET 1: 500 COMMERCE ST CITY: FORT WORTH STATE: TX ZIP: 76102 BUSINESS PHONE: 8173362500 MAIL ADDRESS: STREET 2: P O BOX 2933 CITY: FORTH WORTH STATE: TX ZIP: 76113-2933 10-K/A 1 AMENDMENT NO. 1 TO FORM 10-K 1 SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM 10-K/A Amendment No. 1 to Annual Report Pursuant to Section 13 or 15(d) of The Securities Exchange Act of 1934 For the fiscal year ended Commission file number 1-9828 December 31, 1999 GAINSCO, INC. (Exact name of registrant as specified in its charter) TEXAS 75-1617013 (State of Incorporation) (I.R.S. Employer Identification No.) 500 Commerce Street Fort Worth, Texas 76102 (Address of principal executive offices) (Zip Code) Registrant's telephone number, including area code (817) 336-2500 Securities registered pursuant to Section 12(b) of the Act: Title of each Class Name of each exchange on which registered Common Stock ($.10 par value) The New York Stock Exchange ITEM 1. BUSINESS The section of this Item 1 headed "Employees" is amended to read as follows: EMPLOYEES As of December 31, 1998, the Company employed 267 persons, of which 11 were officers, 247 were staff and administrative personnel, and 10 were part-time employees. Out of the 267 employees, 125 were staff or administration personnel and 3 were part-time employees of the Lalande Group. ITEM 10. DIRECTORS AND EXECUTIVE OFFICERS OF THE REGISTRANT The following are the names and ages of all directors of the Company, the period during which they have served as such and their business experience during at least the last five years, including all Company positions held. The term of each director expires at the next annual shareholders meeting. Management has not as yet nominated any person for the position of director during the coming year. 2 Mr. Joel C. Puckett, age 55, has served as a director of the Company since 1979 and Chairman of the Board of Directors since April, 1998. Mr. Puckett is a certified public accountant with offices located in Minneapolis, Minnesota. Mr. Puckett has been engaged in the private practice of accounting since 1973. Mr. Glenn Anderson, age 47, has served as President, Chief Executive Officer and Director of the Company since April 1998. Prior to assuming these positions, Mr. Anderson served as Executive Vice President of USF&G Corporation and as President of the Commercial Insurance Group of United States Fidelity & Guaranty Company, positions which he held since 1996. From 1995 to 1996 he served as Executive Vice President, Commercial Lines of that company. Mr. Anderson served from 1993 to 1995 as Senior Vice President, Commercial Lines Middle Market, for USF&G Corporation. Mr. Anderson has been engaged in the property and casualty business since 1975. Mr. Dan Coots, age 47, has served as Vice President, Treasurer and Chief Financial Officer of the Company since 1987. In 1991 Mr. Coots was promoted to Senior Vice President. Mr. Coots has been engaged in the property and casualty insurance business since 1983. He has served as director of the Company since 1997. Mr. John C. Goff, age 43, has served as a director of the Company since 1997. From 1987 to April 1994, Mr. Goff served as a senior investment advisor to and investor with Mr. Richard Rainwater. From inception through late 1996 he served as Chief Executive Officer of Crescent Real Estate Equities, Inc. ("Crescent") and since late 1996 he has served as Vice Chairman of the Board of Crescent, which is a real estate investment company (CEI on the NYSE). Mr. Goff is also Vice Chairman of the Board of Crescent Operating, Inc. an investment company (COPI on the NASDAQ) and sits on the Boards of Texas Capital Bank and The Staubach Company. Mr. Goff currently is managing principal of Goff Moore Strategic Partners, a private investment firm. Mr. Robert J. McGee, Jr., age 44, has served as a director of the Company since 1997. Since 1992, Mr. McGee has served as Chairman and Chief Executive Officer of KBK Capital Corporation, a 36-year old commercial finance company. From 1989 to 1992 Mr. McGee served as Chairman of the Board and Chief Executive Officer of Texas Commerce Bank-Tarrant County and Vice Chairman, Texas Commerce Bank, N.A. Mr. Sam Rosen, age 63, has served as the Secretary and a director of the Company since 1983. Mr. Rosen is a partner with the law firm of Shannon, Gracey, Ratliff & Miller, LLP. He has been a partner in that firm or its predecessor since 1966. Mr. Rosen is a director of Aztec Manufacturing Co. Mr. Harden Wiedemann, age 45, has served as a director of the Company since 1989. Mr. Wiedemann has been Chairman and Chief Executive Officer of Assurance Medical, Incorporated, a company providing independent oversight of drug testing, since 1991. Mr. John H. Williams, age 65, has served as a director of the Company since 1990. Mr. Williams is a Senior Vice President, Investments, with Everen Securities, Inc. and has been a principal of that firm or its predecessors since May 1987. Prior to that time, Mr. Williams was associated with Thomson McKinnon 3 Securities, Inc. and its predecessors from 1967. Mr. Williams is a director of Clear Channel Communications, Inc. The information required by this Item 10 with regard to Executive Officers is included in Part 1 of the Form 10-K Report. EMPLOYMENT CONTRACTS By Employment Agreement effective as of April 17, 1998 (the "Agreement"), the Company employed Glenn W. Anderson as President and Chief Executive Officer for a four year period. That term was extended for a one-year period on April 17, 1999 and will be extended for additional one year periods on each anniversary of April 17, 1998, unless either party delivers written notice to the other at least thirty (30) days prior to the applicable anniversary date. Under the Agreement, Mr. Anderson will receive an annual base salary of $340,000 and will be eligible to receive annual management incentive bonuses as may be provided in management bonus plans. He received a bonus of $260,000 at the end of 1998. Under the Agreement, Mr. Anderson was granted non-qualified stock options to purchase 579,710 shares of Common Stock at an exercise price of $5.25 per share which was the lowest closing price during the first five trading days after the pubic announcement of the Company's results of operations for the quarter ended June 30, 1998. The options were fully vested and exercisable upon grant and have a term of five years. The Agreement provides unaccountable relocation expenses of $50,000 and an allowance not to exceed $110,000 for relocation, home sale, temporary housing and moving expenses actually incurred. The Agreement additionally provides fifteen days of paid vacation annually, a $2,000,000 term life insurance policy, the right to participate in any Company group health and disability program, a monthly automobile allowance of $700, a club membership in accordance with Company policy and reimbursement of all appropriate and reasonable expenses incurred by Mr. Anderson in the performance of his duties. The Agreement permits termination of Mr. Anderson for cause with payment of salary accrued to the date of termination. If Mr. Anderson's employment is terminated without cause, he will be entitled to an amount equal to thirty-six times 150% of his then current monthly rate of base salary. The Company has entered into a Change in Control Agreement with Mr. Anderson in substantially the same form entered into with other executive officers of the Company (see Change in Control Agreements below) and if he is terminated without cause within twenty-four months of a change in control of the Company, he shall be entitled to the greater of (i) the amount he would be entitled to upon such termination in the absence of a change in control or (ii) the amount called for by the Change in Control Agreement. Section 162(m) of the Internal Revenue Code of 1986, as amended, imposes a $1,000,000 limit on the amount of compensation that will be deductible by the Company with respect to each of the chief executive officer and the four other most highly compensated executive officers. Performance based compensation that meets certain requirements will not be subject to the deduction limit. Because they were not approved by the shareholders before vesting, the nonqualified stock options granted to Mr. Anderson pursuant to the Agreement are not excluded from the deduction limits of Section 162(m). Therefore, if the exercise of these options by Mr. Anderson results in income to him in excess of $1,000,000 in any one year, that portion over $1,000,000 will not be tax deductible by the Company. Under arrangement between the Company and Mr. Joel C. Puckett, he is compensated for his services as non-executive Chairman of the Board based upon the time that he is required to devote to those duties. Mr. Puckett's compensation is determined by applying the portion of his total time which is devoted to the Company's business to an amount equal to the base salary of the Company's chief executive officer. During the period that Mr. Puckett is compensated under this arrangement he will not receive fees paid to other independent directors. Under this arrangement Mr. Puckett received $109,083 for services rendered from April through the end of 1998. 4 CHANGE IN CONTROL AGREEMENTS The Named Executives each have Severance Agreements which are automatically extended for one additional year from each December 31st unless sooner terminated by the Company. The Severance Agreements provide for the payment of benefits if the Named Executive is actually or "constructively" terminated following a change in control of the Company. A "change in control of the Company" is generally deemed to occur if: (A) any person becomes the beneficial owner of 25% or more of the Company's voting securities; (B) during a two-year period the majority of the Board of Directors of the Company changes without approval by two-thirds of the directors who either were directors at the beginning of the period, or whose election was previously approved; (C) the shareholders of the Company approve a merger or consolidation with another company in which the Company's voting securities do not continue to represent at least 75% of the surviving entity; or (D) the shareholders approve a liquidation, sale or disposition of all or substantially all of the Company's assets. No benefits are payable if a Named Executive quits or is terminated for cause and no benefits beyond those otherwise provided by the Company are provided if a Named Executive is terminated by reason of death, disability or retirement. If, within two years following a change in control, a Named Executive is terminated by the Company for reasons other than cause, or if the Named Executive terminates employment for "good reason," the Named Executive will be paid a lump sum cash payment in an amount equal to two times the Named Executive's base salary; provided, however, such payment shall not be less than 1.25 times the amount reported on the Named Executive's Form W-2 issued by the Company with respect to the year preceding the date of actual or constructive termination. In the event such payment would not be deductible, in whole or in part, by the Company as a result of Section 280G of the Internal Revenue Code, such payment shall be reduced to the extent necessary to make the entire payment deductible. COMPENSATION COMMITTEE INTERLOCKS AND INSIDER PARTICIPATION The members of the Company's Compensation Committee until February of 1998 were Messrs. Joel C. Puckett, John C. Goff, and Joseph D. Macchia. Members of that committee since February, 1998 have been Messrs. John H. Williams, Chairman, Robert J. McGee, Jr., Harden Wiedemann and John C. Goff. Mr. Puckett continued to serve on the committee until July 1998. No executive officer of the Company served as a member of the compensation committee of or as a director of another entity, one of whose executive officers served on the Compensation Committee or the Board of Directors of the Company. SECTION 16(a) BENEFICIAL OWNERSHIP REPORTING COMPLIANCE Mr. Glenn W. Anderson failed to file a Form 3 on a timely basis when he became an executive officer of the company but such filing has since been made. Mr. Harden H. Wiedemann, a director of the Company failed to file a Form 4 on a timely basis in connection with sales made by him during the months of September, October, and December, 1998. This information was, however, corrected by the timely filing of a Form 5. ITEM 11. EXECUTIVE COMPENSATION SUMMARY COMPENSATION TABLE The individuals named below (the "Named Executives") include the Company's chief executive officer and the other four most highly compensated executive officers of the Company for the fiscal year ending December 31, 1998. Information is provided for the fiscal years ending on December 31 of the three years shown in the table below. 5
SUMMARY COMPENSATION TABLE LONG TERM COMPENSATION ----------------------------------- ANNUAL COMPENSATION AWARDS PAYOUTS ----------------------------------------------- ----------------------------------- Other Restricted Annual Stock LTIP All Other Name and Salary Bonus Compensation Award(s) Options/ Payouts Compensation Principal Position Year ($) ($) ($) ($) SARs (#) ($) ($)(2) ------------------ ---- ------- ------- ------------ ---------- -------- -------- ------------ GLENN W. ANDERSON 1998 238,436 310,000 105,397(1) 579,710 - - President and Chief 1997 - - - - - - Executive Officer 1996 - - - - - - RICHARD M. BUXTON 1998 156,000 54,700 - - 34,164 - - Vice President 1997 149,519 47,366 - - 54,521 - - 1996 - - - - - - - DANIEL J. COOTS 1998 140,173 36,500 - - 35,135 - - Senior Vice President, 1997 122,400 25,551 - - - - 13,893 Treasurer and Chief 1996 110,475 152,696 - - - - 20,668 Financial Officer CAROLYN E. RAY 1998 123,361 31,900 - - 34,192 - - Senior Vice President 1997 98,699 19,848 - - - - 13,843 1996 87,975 77,328 - - - - 20,668 J. LANDIS GRAHAM 1998 121,594 31,900 - - 19,567 - - Senior Vice President 1997 97,910 14,064 - - - - 11,975 1996 94,599 63,650 - - - - 20,668 JOSEPH D. MACCHIA(3) 1998 95,109 -0- - - - - - 1997 220,550 131,514 - - - - 13,893 1996 210,000 756,891 - - - - 20,668
(1) Amounts reimbursed for relocation and car allowance. (2) Amounts contributed to or accrued for the Named Executive under the Profit Sharing Plan of the Company. (3) Mr. Macchia retired as Chairman of the Board, President and Chief Executive Officer of the Company on April 18, 1998. 6 STOCK OPTION GRANTS IN LAST FISCAL YEAR The following table shows information on stock options awarded to Named Executives during the fiscal year ended December 31, 1998.
OPTION GRANTS IN LAST FISCAL YEAR Individual Grants (1) ------------------------------------------------------------------------------------------ Number of Securities % of Total Underlying Options Granted Grant Date Options Granted to Employees in Exercise or Base Present Value (2) Name (#) Fiscal Year Price ($/Sh) Expiration Date ($/Sh) - ----------------- ---------------- --------------- ---------------- --------------- ----------------- Glenn W. Anderson 579,710 71.6 5.75 04/25/03 3.50 Richard M. Buxton 34,164 4.2 6.03125 05/10/06 4.38 Daniel J. Coots 35,135 4.3 6.03125 05/10/06 4.38 Carolyn E. Ray 34,192 4.2 6.03125 05/10/06 4.38 J. Landis Graham 19,567 2.4 6.03125 05/10/06 4.38
(1) Stock options are awarded at the fair market value of shares of Common Stock at the date of grant. (2) Options are valued using a Black-Scholes pricing model. The model assumes historic one-year stock price volatility and dividend yield, a risk-free 5.53% interest rate and a ten year option term. No adjustments are made for risk of forfeiture or nontransferability. These values have been calculated in a manner permitted by Securities and Exchange Commission regulations but the Company disavows the ability of this or any other valuation model to predict or estimate the Company's future stock price or to place a reasonably accurate present value on the options because all models depend on assumptions about the future, which is simply unknown. (3) Joseph D. Macchia was not granted stock options during 1998 and held no stock options at the end of that year. AGGREGATED OPTION EXERCISES IN THE LAST FISCAL YEAR AND FISCAL YEAR END OPTION VALUES The following table summarizes for each of the Named Executives the number of stock options, if any, exercised during the fiscal year ended December 31, 1998, the aggregate dollar value, if any, realized upon exercise, if any, the total number of unexercised stock options held at December 31, 1998 and the aggregate dollar value of the unexercised options held at December 31, 1998. Value realized upon exercise is the difference between the fair market value of the underlying stock on the exercise date and the exercise price of the option. Value of unexercised options at fiscal year-end is the difference between the exercise price of the stock options and the fair market value of the underlying stock at December 31, 1998, the latter of which was $6.125 per share. These values, unlike the amounts, if any, set forth in the column headed "Value Realized," have not been, and may never be, realized. The options have not been, and may not be, exercised. Actual gains, if any, on exercise will depend on the value of the Company's stock on the date of exercise. There can be no assurance that the values shown will be realized. 7 AGGREGATED OPTION EXERCISES IN THE LAST FISCAL YEAR AND FY-END OPTION VALUES
SHARES VALUE OF UNEXERCISED ACQUIRED ON VALUE NUMBER OF UNEXERCISED IN-THE-MONEY NAME EXERCISE (#) REALIZED ($) OPTIONS AT FY-END OPTIONS AT FY-END ($) ---- ------------ ------------ ----------------- --------------------- Exercisable Unexercisable Exercisable Unexercisable ----------- ------------- ----------- ------------- GLENN W. ANDERSON - - 579,710 - $ 217,391 - President and Chief Executive Officer RICHARD M. BUXTON - - 20,499 13,665 $ 1,922 $1,281 Vice President DANIEL J. COOTS - - 62,216(1) 14,054 $ 157,169 $1,318 Senior Vice President, Treasurer and Chief Financial Officer CAROLYN E. RAY - - 59,574(2) 13,676 $ 157,436 $1,282 Senior Vice President J. LANDIS GRAHAM - - 11,741 7,826 $ 1,101 $ 734 Senior Vice President
(1) Options to purchase 37,398 shares are exercisable at approximately $2.14 per share, options to purchase 3,737 shares are exercisable at approximately $4.44 per share and options to purchase 21,081 shares are exercisable at approximately $6.03 per share. (2) Options to purchase 39,058 shares are exercisable at approximately $2.14 per share and options to purchase 20,516 are exercisable at approximately $6.03 per share. (3) Joseph D. Macchia exercised no stock options during 1998 and held no stock options at the end of 1998. COMPENSATION OF DIRECTORS Beginning with the meeting of the Board of Directors following the 1998 annual shareholders meeting each independent director receives a retainer of $2,000 per quarter and a fee of $2,000 for each in person meeting of the Board. No additional fee is paid for participation in committee meetings. In his capacity as non-executive Chairman, Mr. Puckett received for the months of April, May, June and July of 1998, 50%, 75%, 60% and 50% respectively of base compensation rate of the Company's President and CEO and after August, 1998 has received 25% of such compensation rate. ITEM 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT The following table sets forth as of February 28, 1999, the number of shares of Common Stock beneficially owned (as defined by the Securities and Exchange Commission) by (i) each director, (ii) each executive officer named in the Summary Compensation Table and (iii) all of the executive officers of the Company as a group. Except as otherwise indicated, each of the persons named below has sole voting and investment power with respect to the shares of Common Stock beneficially owned by that person. 8
AMOUNT AND NATURE OF BENEFICIAL OWNERSHIP(13) ----------------------------------------- NAME OF BENEFICIAL OWNER NUMBER OF SHARES PERCENT - ------------------------ ---------------- ------- Glenn W. Anderson 599,925(1) 2.7% Joel C. Puckett 463,221(2) 2.1% Sam Rosen 209,572(3) * Carolyn E. Ray 121,925(4) * Daniel J. Coots 110,871(5) * John H. Williams 45,762(6) * Richard M. Buxton 36,479(7) * Harden H. Wiedemann 34,105(8) * J. Landis Graham 27,719(9) * John C. Goff 16,800(10) * Robert J. McGee, Jr. 16,800(11) * Directors and Executive officers as a group (13 persons) 1,704,866(12) 7.7%
- ---------------------- * Less than 1% (1) Includes 579,710 shares of Common Stock that Mr. Anderson has the right to acquire within 60 days through the exercise of options granted pursuant to his Employment Agreement with the Company. (2) Includes 51,927 shares of Common Stock held by the Joel Puckett Self-Employed Retirement Trust and 160,101 shares of Common Stock that Mr. Puckett has the right to acquire within 60 days through the exercise of options granted under the 1990 and 1995 Stock Option Plan. (3) Includes 3,163 shares held by an IRA of Mr. Rosen's wife. Mr. Rosen disclaims beneficial ownership of those shares. Also includes 35,065 shares held for the benefit of Mr. Rosen by the Shannon, Gracey, Ratliff & Miller, L.L.P. Profit Sharing Plan, 3,163 shares of Common Stock held by Mr. Rosen's IRA and 90,464 shares of Common Stock that Mr. Rosen has the right to acquire within 60 days through the exercise of options granted under the 1990 and 1995 Stock Option Plans. Mr. Rosen is a partner in the law firm of Shannon, Gracey, Ratliff & Miller, L.L.P. That firm, or its predecessors, has been general counsel to the Company since 1979. The Company intends to retain that firm as its general counsel during the current fiscal year. (4) Includes 11,611 shares of Common Stock held by the Profit Sharing Plan of the Company for the account of Ms. Ray as beneficiary and 59,574 shares of Common Stock that Ms. Ray has the right to acquire within 60 days through the exercise of options granted under the 1990 and 1995 Stock Option plans. (5) Includes 40,134 shares of Common Stock held by the Profit Sharing Plan of the Company for the account of Mr. Coots as beneficiary and 62,216 shares of Common Stock that Mr. Coots has the right to acquire within 60 days through the exercise of options granted under the 1990 and 1995 Stock Option Plans. (6) Includes 45,145 shares of Common Stock that Mr. Williams has the right to acquire within 60 days through the exercise of options granted under the 1990 and 1995 Stock Option Plans. (7) Includes 980 shares of Common Stock held by the Profit Sharing Plan of the Company for the account of Mr. Buxton as beneficiary and 20,499 shares of Common Stock that Mr. Buxton has the right to require within 60 days through the exercise of options granted under the 1995 Stock Option Plan. (8) Includes 30,240 shares of Common Stock that Mr. Wiedemann has the right to acquire within 60 days through the exercise of options granted under the 1990 and 1995 Stock Option Plans. 9 (9) Includes 7,367 shares of Common Stock held by the Profit Sharing Plan of the Company for the account of Mr. Graham as beneficiary and 20,050 shares of Common Stock that Mr. Graham has the right to acquire within 60 days through the exercise of options granted under the 1990 and 1995 Stock Option Plans. (10) Includes 16,800 shares of Common Stock that Mr. Goff has the right to acquire within 60 days through the exercise of options granted under the 1995 Stock Option Plan. (11) Includes 16,800 shares of Common Stock that Mr. McGee has the right to acquire within 60 days through the exercise of options granted under the 1995 Stock Option Plan. (12) Includes 60,917 shares of Common Stock held by the Profit Sharing Plan of the Company for the account of executive officers and 853,234 shares of Common Stock that executive officers of the Company have the right to acquire within 60 days through the exercise of options granted under the 1990 and 1995 Stock Option Plans. (13) Participants in the Profit Sharing Plan of the Company have no voting power with regard to shares held for their benefit but have sole disposition power. ITEM 14. EXHIBITS, FINANCIAL STATEMENT SCHEDULES AND REPORTS ON FORM 8-K (a)(3) The following additional exhibits, which are filed herewith, are added to those previously filed with the Registrant's Form 10-K for 1998:
EXHIBIT NO. DOCUMENT ----------- -------- 10.50 Revolving Credit Agreement among GAINSCO, INC., GAINSCO Service Corp. and Bank One, Texas, N.A. (Schedules omitted) 10.51 Promissory Note to Bank One, Texas, N.A. 10.52 Security Agreement by GAINSCO, INC. 10.53 Pledge Agreement by GAINSCO, INC. 10.54 Schedule A to Pledge Agreement by GAINSCO Service Corp. (The provisions of this Pledge Agreement are the same as those of Exhibit 10.53).
10 SIGNATURES Pursuant to the requirements of Section 13 or 15(d) 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. GAINSCO, INC. (Registrant) /s/ Glenn W. Anderson - ---------------------------------- By: Glenn W. Anderson, President Date: 05/14/99 ----------------------------- Pursuant to the requirements of the Securities Exchange Act of 1934, this Report has been signed below by the following persons on behalf of the Registrant and in the capacities and on the dates indicated.
Name Title Date ---- ----- ---- Joel C. Puckett * Chairman of the Board 05/14/99 - ----------------------------- Joel C. Puckett /s/ Glenn W. Anderson President and Chief 05/14/99 - ----------------------------- Executive Officer Glenn W. Anderson /s/ Daniel J. Coots Senior Vice President and 05/14/99 - ----------------------------- Chief Financial Officer Daniel J. Coots /s/ Sam Rosen Secretary and Director 05/14/99 - ----------------------------- Sam Rosen John C. Goff* Director 05/14/99 - ----------------------------- John C. Goff Robert J. McGee, Jr.* Director 05/14/99 - ----------------------------- Robert J. McGee Harden W. Weidemann* Director 05/14/99 - ----------------------------- Harden H. Weidemann John H. Williams* Director 05/14/99 - ----------------------------- John H. Williams
*By: /s/ Glenn W. Anderson ----------------------------- Glenn W. Anderson, Attorney-in-fact Under Power of Attorney 11 EXHIBIT INDEX
EXHIBIT NO. DOCUMENT ----------- -------- 10.50 Revolving Credit Agreement among GAINSCO, INC., GAINSCO Service Corp. and Bank One, Texas, N.A. (Schedules omitted) 10.51 Promissory Note to Bank One, Texas, N.A. 10.52 Security Agreement by GAINSCO, INC. 10.53 Pledge Agreement by GAINSCO, INC. 10.54 Schedule A to Pledge Agreement by GAINSCO Service Corp. (The provisions of this Pledge Agreement are the same as those of Exhibit 10.53).
EX-10.50 2 REVOLVING CREDIT AGREEMENT DATED 11/13/98 1 EXHIBIT 10.50 - ------------------------------------------------------------------------------- REVOLVING CREDIT AGREEMENT DATED AS OF NOVEMBER 13, 1998 AMONG GAINSCO, INC., GAINSCO SERVICE CORP. AND BANK ONE, TEXAS, NATIONAL ASSOCIATION - ------------------------------------------------------------------------------- 2 REVOLVING CREDIT AGREEMENT THIS REVOLVING CREDIT AGREEMENT (this "AGREEMENT") is entered into as of the 13th day of November, 1998 by and between GAINSCO, INC., a Texas corporation ("GAINSCO"), and GAINSCO SERVICE CORP., a Texas corporation ("GSC") (each a "BORROWER" and collectively, "BORROWERS"), and BANK ONE, TEXAS, NATIONAL ASSOCIATION, a national banking association ("LENDER"). W I T N E S S E T H: Borrowers have requested that Lender provide Borrowers with a revolving credit facility to fund operating capital and for other lawful general corporate purposes. Lender is willing to provide such a facility 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 receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows: 1. DEFINITION OF TERMS 1.1. DEFINITIONS. As used in this Agreement, all exhibits and schedules hereto and in any note, certificate, report, or other Loan Documents made or delivered pursuant to this Agreement, the following terms have the respective meanings assigned to them in this SECTION 1 or in the Section or recital referred to below: "ACQUIRED COMPANIES" means National Specialty Lines, Inc., De La Torre Insurance Adjusters, Inc. and Lalande Financial Group, Inc. "ACQUISITION/SALE CAP" has the meaning set forth in SECTION 7.8. "ADJUSTED EURODOLLAR RATE" means, with respect to any Interest Period, an interest rate per annum (rounded upwards, if necessary, to the next 1/16th of 1%) equal to the quotient of (a) the Eurodollar Rate with respect to such Interest Period, divided by (b) the remainder of 1.00 minus the Eurodollar Reserve Requirement in effect on such date. "ADVANCE" means (a) the disbursement by Lender of a sum or sums lent to any Borrower pursuant to this Agreement, (b) the conversion of a Borrowing from one type of Borrowing to another type of Borrowing pursuant to SECTION 2.13, and (c) the continuation of a Eurodollar Borrowing to a new Interest Period pursuant to SECTION 2.13. "ADVANCE DATE" has the meaning set forth in SECTION 2.2(a). "AFFILIATE" of any Person means any other Person directly or indirectly, controlling, controlled by, or under common control with, such Person. REVOLVING CREDIT AGREEMENT - PAGE 1 - -------------------------- (GAINSCO/Bank One) 3 "AGREEMENT" means this Revolving Credit Agreement, including the SCHEDULES and EXHIBITS hereto, as the same may be renewed, extended, amended, or modified from time-to-time. "APPLICABLE MARGIN" means, at the time of determination thereof, the interest margin over the Base Rate or the Adjusted Eurodollar Rate, as the case may be, as follows:
APPLICABLE MARGIN APPLICABLE MARGIN BASE RATE EURODOLLAR BORROWINGS BORROWINGS ----------------- ----------------- -0-% 1.75%
"APS" means Agents Processing Systems, Inc., a Texas corporation. "BASE RATE" means the variable rate of interest established from time-to-time by Lender as its general reference rate of interest (which rate of interest may not be the lowest, best or most favorable rate charged by Lender on loans to its customers). Each change in the Base Rate shall become effective without prior notice to Borrowers automatically as of the opening of business on the date of such change in the Base Rate. "BASE RATE BORROWING" means any portion of the Principal Debt with respect to which the interest rate is calculated by reference to the Base Rate. "BORROWING" means a Eurodollar Borrowing or a Base Rate Borrowing. "BUSINESS DAY" means (a) for all purposes, any day other than a Saturday, Sunday, or day on which national banks are authorized to be closed under the laws of the State of Texas, and (b) for purposes of any Eurodollar Borrowing, a day that satisfies the requirements of CLAUSE (A) and is a day when commercial banks are open for domestic or international business in London. "CAPITAL EXPENDITURES" means expenditures by any Person that, in conformity with GAAP, are or are required to be included in the property, plant or equipment reflected in the balance sheet of such Person. "CAPITAL LEASE" means, for any Person, any capital lease or sublease that has been (or under GAAP should be) capitalized on a balance sheet of such Person. "CASH EQUIVALENT INVESTMENT" means any Investment (a) in direct obligations of the United States of America or any agency thereof, or obligations fully guaranteed by the United States of America or any agency thereof, (b) commercial paper rated in the highest grade by two (2) or more national credit rating agencies and maturing not more than 180 days from the date of creation thereof, (c) publicly traded bonds rated BBB- or higher by Standard & Poor's Rating Service and Baa3 or higher by Moody's Investors Services, Inc. and (d) time deposits with, and certificates of deposit and bankers' acceptances issued by, commercial banks in the United States, provided, however, that any time deposits, certificates of deposit or bankers' acceptances REVOLVING CREDIT AGREEMENT - PAGE 2 - -------------------------- (GAINSCO/Bank One) 4 in excess of $100,000 may only be with, or issued by, Lender or any United States bank having unimpaired capital and surplus aggregating at least $1,000,000,000.00. "CASH INTEREST EXPENSE" means (without duplication), for the Companies for any period, total interest expense in respect of Indebtedness actually paid or that is payable during such period, including, without limitation, all commissions, discounts, and other fees and charges with respect to letters of credit, but excluding interest expense not payable in cash, all as determined in accordance with GAAP. "CHANGE IN CONTROL" means after the date of this Agreement any person or group of persons (within the meaning of Section 13 and 14 of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the rules and regulations of the Securities and Exchange Commission (the "Commission") relating to such sections) shall, without first obtaining the written consent of Lender, have acquired beneficial ownership (within the meaning of Rules 13d-3 and 13d-5 promulgated by the Commission pursuant to the Exchange Act), directly or indirectly, of 25% or more, on a fully diluted basis, of the outstanding shares of Common Stock. "CLOSING DATE" means November 13, 1998. "CODE" means the Internal Revenue Code of 1986, as amended, and all regulations promulgated and rulings issued thereunder. "COLLATERAL" has the meaning set forth in SECTION 3. "COLLATERAL DOCUMENTS" means all security agreements, pledge agreements, guaranty agreements, and other agreements or documents executed or delivered to secure repayment of the Obligation or any part thereof. "COMMITMENT USAGE" means, as of any date, the Principal Debt. "COMMON STOCK" means the common stock of GAINSCO, $.10 par value per share. "COMPANIES" means Borrowers, the Insurance Subsidiaries and the Grantor Subsidiaries and "COMPANY" means any one of the Companies. "COMPANY ACTION LEVEL RISK-BASED CAPITAL" means, as to any Insurance Subsidiary, the greater of such Insurance Subsidiary's Company Action Level Risk-Based Capital (i) as defined in the Risk-Based Capital for Insurers Model Act adopted by the NAIC and (ii) as determined by any applicable Insurance Regulatory Authority. "COMPLIANCE CERTIFICATE" means a certificate substantially in the form of EXHIBIT A, executed by an authorized officer of each Borrower, stating that a review of the activities of the Companies during the subject period has been made under such Person's supervision and that the Companies have performed each and every obligation and covenant contained herein and the other Loan Documents and are not in default under any of the same or, if any such default shall have occurred, then specifying the nature and status thereof, and setting forth a computation in REVOLVING CREDIT AGREEMENT - PAGE 3 - -------------------------- (GAINSCO/Bank One) 5 reasonable detail as of the end of the period covered by such statements, of compliance with SECTIONS 7.15 through 7.22. "CONSOLIDATED NET INCOME" means, for GAINSCO and its Subsidiaries determined on a consolidated basis, for any period, consolidated net earnings (after income taxes) determined in accordance with GAAP. "CONSOLIDATED NET WORTH" means, as of any date, the total shareholder's equity of GAINSCO and its Subsidiaries determined on a consolidated basis in accordance with GAAP but excluding net unrealized capital gains. "CONSOLIDATED REVENUE" means, for GAINSCO and its Subsidiaries determined on a consolidated basis, for any period, the total revenues of such companies determined in accordance with GAAP but excluding net realized capital gains. "CONSTITUENT DOCUMENTS" means, with respect to any Person, its articles or certificate of incorporation, bylaws, partnership agreements, organizational documents, limited liability company agreements, trust agreement, or such other document as may govern such Person's formation, organization, and management. "CONTRACT RATE" means (a) with respect to a Base Rate Borrowing, the Base Rate plus the Applicable Margin, and (b) with respect to a Eurodollar Borrowing, the Adjusted Eurodollar Rate plus the Applicable Margin. "CURRENT DATE" means a date within 15 days prior to the Closing Date. "DEBTOR LAWS" means all applicable liquidation, conservatorship, bankruptcy, moratorium, arrangement, receivership, insolvency, reorganization, or similar laws from time-to-time in effect affecting the rights of creditors generally. "DIVIDENDS" means, with respect to any Stock issued by any Person, (a) the retirement, redemption, purchase, or other acquisition for value of such Stock by such Person, (b) the declaration or payment of any dividend or distribution on or with respect to such Stock by such Person, and (c) any other payment by such Person with respect to such Stock. "EBITDA" means (without duplication), for any Person for any period, the sum of (a) net income after taxes, (b) Cash Interest Expense for such period, (c) Federal, state and local income taxes deducted in determining such net income, (d) amortization of goodwill and other intangibles (including, without limitation, deferred financing costs and debt discount) deducted in determining such net income and (e) depreciation, depletion and obsolescence of property, in each case, determined in accordance with GAAP. "ENVIRONMENTAL LAWS" means any Legal Requirements pertaining to air, emissions, water discharge, noise emissions, solid or liquid waste disposal, hazardous waste or materials, industrial hygiene, or other environmental, health, or safety matters or conditions on, under or about real property or any portion thereof, and similar laws of any Governmental Authority REVOLVING CREDIT AGREEMENT - PAGE 4 - -------------------------- (GAINSCO/Bank One) 6 having jurisdiction over real property as such Legal Requirements may be amended or supplemented from time-to-time, and regulations promulgated and rulings issued pursuant to such laws. "EQUITY ISSUANCE" means the issuance or sale by any Company of any Stock, or any options, warrants, or other rights to subscribe for or otherwise acquire Stock, of such Company. "ERISA" means the Employee Retirement Income Security Act of 1974, as amended, and the regulations and published interpretations thereunder. "ERISA AFFILIATE" means any Subsidiary or trade or business (whether or not incorporated) which is a member of a group of which any Company is a member and which is under common control with any Company within the meaning of Section 414 of the Code. "EURODOLLAR BORROWING" means any portion of the Principal Debt with respect to which the interest rate is calculated by reference to the Adjusted Eurodollar Rate for a particular Interest Period. "EURODOLLAR RATE" means, for any Eurodollar Borrowing for any Interest Period therefor, the rate per annum (rounded upwards, if necessary, to the nearest 1/100 of one percent) equal to the rate as shown on the display designated as "British Bankers Interest Settlement Rates" on the Telerate System ("TELERATE"), Page 3750 or 3740, or such other page or pages as may replace such pages on Telerate for the purpose of displaying such rate as the London interbank offered rate for deposits in Dollars at approximately 11:00 a.m. (London time) two (2) Business Days prior to the first (1st) day of such Interest Period for a term comparable to such Interest Period. If for any reason such rate is not available, then such rate shall be the rate independently determined by Lender from an alternate, substantially similar independent source available to Lender or shall be calculated by Lender by a substantially similar methodology as that theretofore used to determine such rate in Telerate. "EURODOLLAR RESERVE REQUIREMENT" means, on any day, that percentage (expressed as a decimal fraction) that 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 Lender of the Eurodollar Reserve Requirement shall, in the absence of manifest error, be conclusive and binding. "EVENT OF DEFAULT" has the meaning set forth in SECTION 8.1. "FIXED CHARGES COVERAGE RATIO" means the ratio of (a) the sum of (1) the greater of (A) the Statutory Earnings of GAIC for the four fiscal quarters ending on the date of determination or (B) 10% of the Statutory Surplus of GAIC at the end of its fiscal quarter ending on the date of determination, (2) the EBITDA of all Subsidiaries of GAINSCO that are not Insurance REVOLVING CREDIT AGREEMENT - PAGE 5 - -------------------------- (GAINSCO/Bank One) 7 Subsidiaries for the four fiscal quarters ending on the date of determination, (3) GAINSCO's revenues, excluding Dividends received from Subsidiaries, for the four fiscal quarters ending on the date of determination, and (4) tax sharing payments received by GAINSCO for the four fiscal quarters ending on the date of determination minus GAINSCO's expenses and taxes for such four fiscal quarters to (b) the sum of (A) the projected Cash Interest Expense for the four fiscal quarters following the date of determination and (B) the scheduled reduction in the Commitment for the four fiscal quarters following the date of determination. "FUNDING LOSS" has the meaning set forth in SECTION 2.15(E). "GAAP" means those generally accepted accounting principles and practices, applied on a consistent basis, which are recognized as such by the American Institute of Certified Public Accountants acting through its Accounting Principles Board and the Financial Accounting Standards Board and/or their respective successors and which are applicable in the circumstances as of the date in question. "GAIC" means General Agents Insurance Company of America, Inc., an Oklahoma insurance company. "GAPFC" means General Agents Premium Finance Company, a Texas corporation. "GAINSCO" has the meaning set forth in the first paragraph of this Agreement. "GAINSCO PLEDGE AGREEMENT" means the Pledge Agreement by GAINSCO dated the Closing Date whereby GAINSCO grants to Lender a security interest in, among other collateral security, all of the issued and outstanding capital stock of GSC, APS, GAIC, GAPFC and RRA. "GAINSCO SECURITY AGREEMENT" means the Security Agreement by GAINSCO dated the Closing Date whereby GAINSCO grants to Lender a security interest in substantially all of its assets. "GCMIC" means GAINSCO County Mutual Insurance Company, a Texas mutual insurance company. "GOVERNMENTAL AUTHORITY" means, with respect to any Person, any government (or any political subdivision or jurisdiction thereof), court, bureau, agency, or other governmental authority having jurisdiction over such Person or any of its business, operations, or properties. With respect to Insurance Subsidiaries, Governmental Authority shall include such Insurance Subsidiaries' Insurance Regulatory Authorities. "GOVERNMENTAL AUTHORIZATION" means any approval, consent, license, permit, waiver, or other authorization issued, granted, given, or otherwise made available by or under the authority of any Governmental Authority or pursuant to any Legal Requirement. "GRANTOR SUBSIDIARIES" means the following wholly owned subsidiaries of GAINSCO: APS, RRA, GAPFC, MGAPFC and the Acquired Companies. REVOLVING CREDIT AGREEMENT - PAGE 6 - -------------------------- (GAINSCO/Bank One) 8 "GSC" has the meaning set forth in the first paragraph of this Agreement. "GSC PLEDGE AGREEMENT" means the Pledge Agreement by GSC dated the Closing Date whereby GSC grants to Lender a security interest in, among other things, all of the issued and outstanding capital stock of MGAPFC. "GSC SECURITY AGREEMENT" means the Security Agreement dated the Closing Date whereby GSC grants to Lender a security interest in substantially all of its assets. "GUARANTY" of any Person means any contract 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 agreements to assure the holder of the Indebtedness of the Primary Obligor against loss in respect thereof; provided that "Guaranty" shall not include endorsements, in the ordinary course of business, of negotiable instruments or documents for deposit or collection. "HAZARDOUS MATERIAL" means any hazardous, toxic, or dangerous waste, substance, or material defined as such in or for the purpose of any Environmental Law. "INDEBTEDNESS" means, for any Person, all Liabilities of such Person, excluding accounts payable, deferred taxes, deferred liabilities, and accrued expenses in each case incurred in the ordinary course of business and the payment of which is not past-due (unless payment is being contested in good faith by appropriate proceedings diligently conducted and for which adequate reserves are maintained in accordance with GAAP). "INSURANCE REGULATORY AUTHORITY" means each insurance department or similar administrative authority or agency which regulates any Insurance Subsidiary. "INSURANCE SUBSIDIARIES" means each Subsidiary of Borrowers that is an operating insurance company including, without limitation, GAIC, MGAIC and GCMIC. "INTANGIBLE ASSETS" of any Person means those assets of such Person which are (a) deferred assets, other than prepaid insurance and prepaid taxes, (b) patents, copyrights, trademarks, tradenames, franchises, goodwill, experimental expenses, and other similar assets which would be classified as intangible assets on a balance sheet of such Person, (c) unamortized debt discount and expense, and (d) assets located, and notes and receivables due from obligors domiciled, outside of the United States of America. "INTANGIBLE RIGHTS" means, for any Person, any permits, franchises, licenses, patents, trademarks, trade names, intellectual property rights, technology, know-how, and processes of such Person. "INTEREST PERIOD" means, with respect to a Eurodollar Borrowing, a period commencing: (a) on the Advance Date thereof; or REVOLVING CREDIT AGREEMENT - PAGE 7 - -------------------------- (GAINSCO/Bank One) 9 (b) on the conversion date pertaining to such Eurodollar Borrowing, if such Eurodollar Borrowing is made pursuant to a conversion as described in SECTION 2.13; or (c) on the last day of the preceding Interest Period in the case of a rollover to a successive Interest Period; (d) and ending one (1) month, two (2) months or three (3) months thereafter, as Borrowers shall elect in accordance with SECTION 2.12 or SECTION 2.13, provided that: (i) any Interest Period that would otherwise end on a day which is not a Business Day shall be extended to the next succeeding Business Day, unless such Business Day falls in another calendar month in which case such Interest Period shall end on the next preceding Business Day; (ii) any Interest Period that begins on the last 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 (i) above, end on the last Business Day of a calendar month; and (iii) if the Interest Period for any Eurodollar Borrowing would otherwise end after the final maturity date of the Note, then such Interest Period shall end on the final maturity date of the Note. "INVESTMENT" in any Person means any investment, whether by means of Stock purchase, loan, advance, extension of credit, capital contribution, or otherwise, in or to such Person, the Guaranty of any Indebtedness of such Person, or the subordination of any claim against such Person to other Indebtedness of such Person. "LALANDE ACQUISITION" means the acquisition by GAINSCO of the capital stock of the Acquired Companies pursuant to the Purchase Agreement. "LEGAL REQUIREMENT" means any federal, state, local, municipal, foreign, international, multi-national, or other administrative order, constitution, law, ordinance, regulation, statute, or treaty as in effect on the date in question. "LIABILITIES" means (without duplication), with respect to any Person, all indebtedness, obligations, and liabilities of such Person, including without limitation (a) all "liabilities" which would be reflected on a balance sheet of such Person, (b) all obligations of such Person in respect of any Guaranty, letter of credit, or bankers' acceptance, (c) all obligations of such Person in respect of any Capital Lease, (d) all obligations, indebtedness, and liabilities secured by any lien or any security interest on any property or assets of such Person, and (e) any obligation to redeem or repurchase any of such Person's Stock. "LICENSES" has the meaning set forth in SECTION 5.26. REVOLVING CREDIT AGREEMENT - PAGE 8 - -------------------------- (GAINSCO/Bank One) 10 "LIEN" means any lien, mortgage, security interest, tax lien, pledge, encumbrance, conditional sale or title retention arrangement, or any other interest in property designed to secure the repayment of Indebtedness, whether arising by agreement or under any statute or law, or otherwise. "LOAN DOCUMENTS" means this Agreement, the Note, the Collateral Documents, and any agreements, documents (and with respect to this Agreement, and such other agreements and documents, any renewals, extensions, amendments, or supplements thereto), or certificates at any time executed or delivered pursuant to the terms of this Agreement. "MANAGEMENT AGREEMENT" means the Management Contract dated October 12, 1992 between GSC and GCMIC, as the same may be amended, extended or otherwise modified. "MATERIAL ADVERSE EFFECT" means any material adverse changes in, or effect upon, (a) the validity, performance or enforceability of any Loan Documents, (b) the financial condition or business operations of any Company, or (c) the ability of any Company to fulfill its obligations under the Loan Documents. "MAXIMUM RATE" means the highest non-usurious rate of interest (if any) permitted from day to day by applicable law. Lender hereby notifies and discloses to Borrowers that, for purposes of Tex. Rev. Civ. Stat. Ann. art. 5069-1D.001 (codified in the Texas Finance Code ss. 303.001), as it may from time to time be amended, the "applicable ceiling" shall be the "weekly ceiling" from time to time in effect as limited by article 5069-1D.009 (codified in the Texas Finance Code ss. 303.305); provided, however, that to the extent permitted by applicable law, Lender reserves the right to change the "applicable ceiling" from time to time by further notice and disclosure to Borrowers. "MGAIC" means MGA Insurance Company, a Texas insurance company. "MGAPFC" means MGA Premium Finance Company, a Texas corporation. "MULTI-EMPLOYER PLAN" means a multi-employer plan as defined in Sections 3(37) or 4001(a)(3) of ERISA or Section 414 of the Code to which any Company or any ERISA Affiliate is making, or has made, or is accruing, or has accrued, an obligation to make contributions. "NAIC" means the National Association of Insurance Commissioners. "NET AMOUNT RECOVERABLE FROM REINSURERS" means, with respect to any Insurance Subsidiary, as of any date of determination, the total dollar amount set forth on Schedule F, Part 3, column 13 of the Statutory Statement of such Insurance Subsidiary. In making such determination with respect to MGAIC, amounts payable as of December 31, 1997 by the Arkansas Automobile Insurance Plan, the California Auto Assigned Risk Plan, the Commercial Auto Insurance Procedure of Louisiana, the Commercial Auto Insurance Procedure of Mississippi and the Pennsylvania Pooled Commercial Assignment Procedure shall be excluded. REVOLVING CREDIT AGREEMENT - PAGE 9 - -------------------------- (GAINSCO/Bank One) 11 "NOTE" means the Promissory Note executed by Borrowers and delivered pursuant to the terms of this Agreement, together with any renewals, extensions, or modifications thereof. "NOTICE OF BORROWING" means a notice in the form of EXHIBIT C attached hereto. "OBLIGATION" means all present and future Indebtedness, obligations, and Liabilities and all renewals and extensions thereof, or any part thereof, now or hereafter owed to Lender by Borrowers, whether arising pursuant to any of the Loan Documents, or otherwise, and all modifications, amendments, renewals, extensions, and restatements thereof, together with all interest accruing thereon and costs, expenses, and attorneys' fees incurred in the enforcement or collection thereof. "OTHER TAXES" has the meaning set forth in SECTION 2.16. "PBGC" means the Pension Benefit Guaranty Corporation, and any successor to all or any of the Pension Benefit Guaranty Corporation's functions under ERISA. "PERSON" shall include an individual, corporation, joint venture, general or limited partnership, trust, unincorporated organization, or government, or any agency or political subdivision thereof. "PERMITTED LIENS" means (a) Liens in favor of Lender to secure the Obligation, (b) 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, (c) Liens imposed by mandatory provisions of law such as for materialmen's, mechanic's, warehousemen's, and other like Liens arising in the ordinary course of a Company's business, securing Indebtedness whose payment is not yet due, (d) Liens for taxes imposed upon a Person or upon such Person's income, profits, or property, if the same are not yet due and payable or if the same are being contested in good faith and for which adequate reserves are maintained in accordance with GAAP, (e) good faith deposits in connection with leases, real estate bids or contracts (other than contracts involving the borrowing of money), pledges or 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, (f) encumbrances consisting of zoning restrictions, easements, or other restrictions on the use of real property, provided that such encumbrances do not impair the use of such property for the uses intended, and none of which is violated by existing or proposed structures or land use, (g) deposits of any Insurance Subsidiary required to be maintained with Insurance Regulatory Authorities, or with trustees designated by such Insurance Regulatory Authorities, in either case in the ordinary course of business, (h) deposits of any Insurance Subsidiary required by reinsurance agreements permitted by the terms hereof entered into in the ordinary course of business, (i) Liens described on EXHIBIT E, and Liens resulting from the refinancing of the related Indebtedness secured thereby, provided that the Indebtedness secured thereby shall not be increased and the Liens shall not cover additional assets of any Company and (j) Liens securing the payment of purchase money financings of equipment incurred in the ordinary course of business. REVOLVING CREDIT AGREEMENT - PAGE 10 - -------------------------- (GAINSCO/Bank One) 12 "PLAN" means an employee benefit plan or other plan maintained by any Company or any ERISA Affiliate and which is covered by Title IV of ERISA or subject to the minimum funding standards under Section 412 of the Code, as amended. "POTENTIAL DEFAULT" means the occurrence of any event which with passage of time or giving of notice or both would become an Event of Default. "PRINCIPAL DEBT" means, as of any date, the sum of the outstanding principal balance of all outstanding Borrowings hereunder as of such date. "PURCHASE AGREEMENT" means, collectively, (a) the Stock Purchase Agreement dated August 17, 1998 among GAINSCO, Carlos De la Torre, Rosa De la Torre, National Specialty Lines, Inc., De La Torre Insurance Adjusters, Inc. and Lalande Financial Group, Inc., (b) the Stock Purchase Agreement dated August 17, 1998 among GAINSCO, Inc., McRae B. Johnston, National Specialty Lines, Inc. and Lalande Financial Group, Inc., (c) the Stock Purchase Agreement dated August 17, 1998 among GAINSCO, Inc., Michael Johnson, National Specialty Lines, Inc. and Lalande Financial Group, Inc. and (d) the Stock Purchase Agreement dated August 17, 1998 among GAINSCO, Inc., Ralph Mayoral, National Specialty Lines, Inc. and Lalande Financial Group, Inc. "REINSURANCE AGREEMENT" means any agreement, contract, treaty or other arrangement (other than Surplus Relief Reinsurance) whereby other insurers assume insurance from any Insurance Subsidiary or any Subsidiary of such Insurance Subsidiary. "REPORTABLE EVENT" has the meaning assigned to that term in Title IV of ERISA, but shall not include an event with respect to which the PBGC has waived the reporting requirement by regulation. "REPRESENTATIVES" means representatives, officers, directors, employees, attorneys, and agents. "REVOLVING CREDIT COMMITMENT" means the following amounts during the indicated periods:
AMOUNT OF REVOLVING CREDIT PERIOD COMMITMENT ------ ---------- Closing Date through 12/31/99 $18,000,000 1/1/2000 through 3/31/2000 17,500,000 4/1/2000 through 6/30/2000 17,000,000 7/1/2000 through 9/30/2000 16,500,000 10/1/2000 through 12/31/2000 16,000,000 1/1/2001 through 3/31/2001 15,500,000 4/1/2001 through 6/30/2001 15,000,000 7/1/2001 through 9/30/2001 14,500,000 10/1/2001 through 12/31/2001 14,000,000
REVOLVING CREDIT AGREEMENT - PAGE 11 - -------------------------- (GAINSCO/Bank One) 13 1/1/2002 through 3/31/2002 13,500,000 4/1/2002 through 6/30/2002 13,000,000 7/1/2002 through 9/30/2002 12,500,000 10/1/2002 through 12/31/2002 12,000,000 1/1/2003 through 3/31/2003 11,500,000 4/1/2003 through 6/30/2003 11,000,000 7/1/2003 through 9/30/2003 10,500,000
as the same may be decreased by Borrowers pursuant to SECTION 2.1 or terminated by Lender pursuant to SECTION 8.2. "RRA" means Risk Retention Administrators, Inc., a Nevada corporation. "SAP" means, when used with respect to an insurance company, statutory accounting practices prescribed or permitted by the insurance laws or regulations or insurance commissioner (or other similar authority) in the jurisdiction of the incorporation of such insurance company for the preparation of financial statements and other financial reports by insurance corporations of the type of such insurance company applied on a basis consistent with those reflected in the financial statements furnished to Lender prior to the Closing Date. If SAP is changed in any jurisdiction, the appropriate company affected thereby may change its practices in accordance with such change. "SOLVENT" means, as to a Person, that (a) the aggregate fair market value of its assets exceeds its Liabilities, (b) such Person is able to pay and is paying its Liabilities as they mature, and (c) it does not have unreasonably small capital to conduct its businesses. "STATUTORY EARNINGS" means, for any Insurance Subsidiary, for any period, the net income from operations after federal income taxes for such period, determined in conformity with SAP. "STATUTORY STATEMENT" means, as to any Insurance Subsidiary, a statement of the condition and affairs of such Insurance Subsidiary, prepared in accordance with statutory accounting practices required or permitted by the its applicable Insurance Regulatory Authority, and filed with such Insurance Regulatory Authority. "STATUTORY SURPLUS" means, for any Insurance Subsidiary, on any date of determination thereof, the aggregate amount of surplus as regards policyholders of such Insurance Subsidiary (determined in accordance with SAP). "STOCK" means all shares, options, warrants, general or limited partnership interests, membership interests, or other ownership interests (regardless of how designated) of or in a corporation, partnership, limited liability company, trust, or other entity, whether voting or nonvoting, including common stock, preferred stock, or any other "equity security" (as such term is defined in Rule 3a11-1 of the General Rules and Regulations promulgated by the Securities and Exchange Commission under the Securities Exchange Act of 1934, as amended). REVOLVING CREDIT AGREEMENT - PAGE 12 - -------------------------- (GAINSCO/Bank One) 14 "SURPLUS DEBENTURE" means the Surplus Debenture dated December 16, 1996 in the stated principal amount of $2,600,000 payable by GCMIC to GSC. "SURPLUS RELIEF" means, for any Insurance Subsidiary, the resulting after tax increase in Statutory Surplus of such Insurance Subsidiary resulting from entering into a Financial Reinsurance Agreement. As used herein, "Financial Reinsurance Agreement" means a reinsurance agreement covering any transaction in which any Insurance Subsidiary cedes business that does not meet the conditions for reinsurance accounting as provided by the Financial Accounting Standards Board in Statement of Financial Accounting Standards No. 113, as the same may be revised, replaced, or supplemented from time to time. "SUBSIDIARY" means any corporation of which more than fifty percent (50%) (in number of votes) of the issued and outstanding Stock having ordinary voting power for the election of at least a majority of the directors is owned or controlled, directly or indirectly, by GAINSCO, any Subsidiary of GAINSCO, or any combination thereof. For purposes of this Agreement, Subsidiary shall include GCMIC. "SUBSIDIARY SECURITY AGREEMENTS" means the Security Agreements dated the Closing Date whereby each Grantor Subsidiary grants to Lender a security interest in the collateral security described therein. "TAXES" has the meaning set forth in SECTION 2.16. "TERMINATION DATE" means the first to occur of (a) November 1, 2003, (b) the date Lender's commitment to fund Advances hereunder is terminated pursuant to SECTION 8.2, or (c) the date that Lender's commitment to fund Advances hereunder is reduced to zero pursuant to SECTION 2.1. "TOTAL ADJUSTED CAPITAL" means, as to any Insurance Subsidiary, the lesser of such Insurance Subsidiary's Total Adjusted Capital (i) as defined in the Risk-Based Capital for Insurance Model Act adopted by the NAIC and (ii) as determined by any applicable Insurance Regulatory Authority. "TOTAL CAPITALIZATION" means, at any date, the sum (without duplication) of Total Debt plus Consolidated Net Worth. "TOTAL DEBT" means, as at any date, the sum for GAINSCO and its Subsidiaries (determined on a consolidated basis without duplication in accordance with GAAP) of all Indebtedness. "UNUSED COMMITMENT" means, as of any date, (a) the Revolving Credit Commitment, minus (b) the Commitment Usage. 1.2. ACCOUNTING TERMS. As used in this Agreement, and in any certificate, report, or other document made or delivered pursuant to this Agreement, accounting terms not defined in SECTION 1.1, and accounting terms partly defined in SECTION 1.1 to the extent not defined, have, as REVOLVING CREDIT AGREEMENT - PAGE 13 - -------------------------- (GAINSCO/Bank One) 15 of any date, the respective meanings given to them under GAAP or SAP, as applicable, and all references to balance sheets or other financial statements means such statements, prepared in accordance with GAAP or SAP, as applicable, as of such date. 1.3. RULES OF CONSTRUCTION. When used in this Agreement: (a) "or" is not exclusive; (b) a reference to a law includes any amendment or modification to such law; (c) a reference to a Person includes its permitted successors and permitted assigns; (d) except as provided otherwise, all references to the singular shall include the plural and vice versa; (e) except as provided in this Agreement, a reference to an agreement, instrument, or document shall include such agreement, instrument, or document as the same may be amended, modified, renewed, extended, restated, or supplemented from time to time in accordance with its terms and as permitted by the Loan Documents; (f) all references to SECTIONS, SCHEDULES, or EXHIBITS shall be to Sections, Schedules, or Exhibits of this Agreement, unless otherwise indicated; (g) all EXHIBITS to this Agreement shall be incorporated into this Agreement; (h) the words "include," "includes," and "including" shall be deemed to be followed by the phrase "without limitation;" and (i) except as otherwise provided herein, in the computation of time from a specified date to a later specified date, the word "from" means "from and including" and words "to" and "until" each mean "to but excluding." 1.4. JOINT AND SEVERAL. (a) All representations contained herein shall be deemed individually made by each Borrower, and each of the covenants, agreements, and obligations set forth herein shall be deemed to be the joint and several covenants, agreements, and obligations of each Borrower. Any notice, request, consent, report, or other information or agreement delivered to Lender by any Borrower shall be deemed to be ratified by, consented to, and also delivered by each other Borrower. Each Borrower recognizes and agrees that each covenant and agreement of a "Borrower" and "Borrowers" in this Agreement and in any other Loan Document shall create a joint and several obligation of such entities, which may be enforced against such entities jointly or against each entity separately. (b) Each Borrower hereby irrevocably and unconditionally agrees: (i) that it is jointly and severally liable to Lender for the full and prompt payment of the Obligation and the performance by each other Borrower of its obligations hereunder in accordance with the terms hereof; (ii) to fully and promptly perform all of its obligations hereunder with respect to the Obligation; and (iii) as a primary obligation to indemnify Lender on demand for and against any loss incurred by Lender as a result of any of the obligations of any one or more of Borrowers being or becoming void, voidable, unenforceable, or ineffective for any reason whatsoever, whether or not known to Lender or any Person, the amount of such loss being the amount which Lender would otherwise have been entitled to recover from any one or more Borrowers. 2. THE REVOLVING CREDIT LOAN 2.1. THE REVOLVING CREDIT COMMITMENT. Subject to the terms and conditions of this Agreement, Lender agrees to extend to Borrowers, from the date hereof through the Termination REVOLVING CREDIT AGREEMENT - PAGE 14 - -------------------------- (GAINSCO/Bank One) 16 Date, a revolving line of credit which shall not exceed at any one time outstanding the then-current Revolving Credit Commitment. Within the limits of this SECTION 2.1, during such period, Borrowers may borrow, repay, and reborrow the Unused Commitment in accordance with this Agreement. Borrowers shall have the right, upon three (3) Business Days' prior written notice to Lender, to permanently reduce the unutilized portion of the Revolving Credit Commitment; provided that if any such reduction does not reduce the Revolving Credit Commitment to $0.00, then any partial reduction shall be in the minimum amount of $1,000,000.00 or a greater integral multiple of $500,000.00. 2.2. MANNER OF BORROWING. (a) NOTICE OF BORROWING. Borrowers may request an Advance by submitting to Lender a Notice of Borrowing (in writing or by telephone followed by written notice within one (1) Business Day), which is irrevocable and binding on Borrowers. Each Notice of Borrowing must be received by Lender no later than 10:00 a.m. (Dallas, Texas time) on the third (3rd) Business Day before the date on which funds are requested (the "ADVANCE DATE") for any Advance that will be a Eurodollar Borrowing or no later than 10:00 a.m. (Dallas, Texas time) on the Advance Date for any Advance that will be a Base Rate Borrowing. (b) MINIMUM ADVANCES. Each Advance under the Revolving Credit Commitment shall be in an amount of $250,000.00 or a greater integral multiple of $50,000.00. (c) FUNDING. Subject to the terms and conditions in this Agreement, by not later than 2:00 p.m., Dallas, Texas time, on the date specified in the Notice of Borrowing, Lender shall make available to Borrowers, at Lender's offices in Dallas, Texas, the amount of a requested Advance under the Revolving Credit Commitment in immediately available funds. 2.3. COMMITMENT FEES. (a) UNUSED FEE. Borrowers agree to pay to Lender a commitment fee equal to one-quarter of one percent (0.25%) per annum on the daily Unused Commitment. Such commitment fee shall be payable quarterly in arrears on the last day of each March, June, September, and December during the term hereof, commencing on December 31, 1998, and continuing regularly thereafter so long as the Revolving Credit Commitment is in effect, and on the Termination Date. (b) GENERALLY. Borrowers acknowledge that the commitment fees payable hereunder are bona fide commitment fees and are intended as reasonable compensation to Lender for committing to make funds available to Borrowers as described herein and for no other purposes. REVOLVING CREDIT AGREEMENT - PAGE 15 - -------------------------- (GAINSCO/Bank One) 17 2.4. NOTE. The Principal Debt shall be evidenced by the Note in the form of EXHIBIT B, properly completed, executed by Borrowers, which Note shall be (a) dated the date hereof, (b) in the amount of $18,000,000.00, and (c) payable to the order of Lender. 2.5. INTEREST AND PRINCIPAL PAYMENTS. (a) INTEREST PAYMENTS. Accrued interest on each Eurodollar Borrowing shall be due and payable on the last day of its respective Interest Period. Accrued interest on each Base Rate Borrowing shall be due and payable on the last day of each March, June, September, and December during the term hereof, commencing on December 31, 1998, with a final scheduled interest payment on all Borrowings on the Termination Date; provided, however, that accrued interest on each Base Rate Borrowing shall also be due and payable upon conversion of such Base Rate Borrowing to a Eurodollar Borrowing pursuant to SECTION 2.13. (b) PRINCIPAL PAYMENTS. The unpaid Principal Debt shall be due and payable on the Termination Date. (c) OPTIONAL PREPAYMENTS. Borrowers shall have the right, from time-to-time, to prepay the unpaid Principal Debt, in whole or in part, without premium or penalty (except for any Funding Loss), upon the payment of accrued interest on the amount prepaid to and including the date of payment; provided, however, that partial prepayments of principal shall be in an amount equal to $100,000.00 or a greater integral multiple of $50,000.00 (or, if less, the unpaid Principal Debt). (d) MANDATORY PREPAYMENTS. If on any date the unpaid Principal Debt exceeds the then applicable Revolving Credit Commitment, Borrowers shall, as promptly as practicable but in no event later than the next Business Day, prepay a sufficient amount of the aggregate principal amount of the Principal Debt to bring the unpaid Principal Amount within the then applicable Revolving Credit Commitment. 2.6. MANNER AND APPLICATION OF PAYMENTS. All payments and prepayments by Borrowers on account of principal, interest, and fees hereunder shall be made in immediately available funds. All such payments shall be made to Lender at its principal office in Dallas, Texas, not later than 12:00 noon, Dallas, Texas time, on the date due and funds received after that hour shall be deemed to have been received by Lender on the next following Business Day. If any payment is scheduled to become due and payable on a day which is not a Business Day, then such payment shall instead become due and payable on the immediately following Business Day and interest on the principal portion of such payment shall be payable at the then applicable rate during such extension. All payments made on the Note shall be applied first to accrued interest and then to principal (in the inverse order of maturity in the case of prepayments). 2.7. INTEREST OPTIONS. Except where specifically otherwise provided, Borrowings bear interest at an annual rate equal to the lesser of either (a) the sum of (i) the Base Rate or the Adjusted Eurodollar Rate (in each case as designated or deemed designated by Borrowers), as the case may be, plus (ii) the Applicable Margin, or (b) the Maximum Rate. Each change in the REVOLVING CREDIT AGREEMENT - PAGE 16 - -------------------------- (GAINSCO/Bank One) 18 Base Rate and the Maximum Rate is effective, without notice to Borrowers or any other Person, upon the effective date of change. 2.8. QUOTATION OF RATES. A responsible officer of Borrowers may call Lender before delivering a Notice of Borrowing to receive an indication of the interest rates then in effect, but the indicated rates do not bind Lender or affect the interest rate that is actually in effect when Borrowers deliver a Notice of Borrowing. 2.9. DEFAULT RATE. If permitted by law, all past-due principal of and accrued interest on the Note bears interest from maturity (stated or by acceleration) at the lesser of (a) the Maximum Rate or (b) a rate per annum equal to the sum of (i) two percent (2.0%) plus (ii) the Base Rate for Base Rate Borrowings in effect from time to time plus (iii) the Applicable Margin for Base Rate Borrowings, until paid, regardless whether payment is made before or after entry of a judgment. 2.10. INTEREST RECAPTURE. If the Contract Rate applicable to any Borrowing exceeds the Maximum Rate, then the interest rate on that Borrowing is limited to the Maximum Rate, but any subsequent reductions in the Contract Rate shall not reduce the interest rate thereon below the Maximum Rate until the total amount of accrued interest equals the amount of interest that would have accrued if Contract Rate had always been in effect. If at maturity (stated or by acceleration) the total interest paid or accrued is less than the interest that would have accrued if the Contract Rates had always been in effect, then, at that time and to the extent permitted by law, Borrowers shall pay an amount equal to the difference between (a) the lesser of the amount of interest that would have accrued if the Contract Rates had always been in effect and the amount of interest that would have accrued if the Maximum Rate had always been in effect, and (b) the amount of interest actually paid or accrued on the Note. 2.11. INTEREST CALCULATIONS. (a) Interest shall be calculated on the basis of actual number of days (including the first day but excluding the last day) elapsed but computed as if each calendar year consisted of 360 days (unless the calculation would result in an interest rate greater than the Maximum Rate, in which event interest will be calculated on the basis of a year of 365 or 366 days, as the case may be). All interest rate determinations and calculations by Lender are conclusive and binding absent manifest error. (b) The provisions of this Agreement relating to calculation of the Base Rate and the Eurodollar Rate are included only for the purpose of determining the rate of interest or other amounts to be paid under this Agreement that are based upon those rates. Lender may fund and maintain its funding of all or any part of each Borrowing as it selects. 2.12. SELECTION OF INTEREST OPTION. On making a Notice of Borrowing under SECTION 2.2(a), Borrowers shall advise Lender as to whether the Advance shall be (a) a Eurodollar Borrowing, in which case Borrowers shall specify the applicable Interest Period therefor, or (b) a Base Rate Borrowing. Notwithstanding anything to the contrary contained REVOLVING CREDIT AGREEMENT - PAGE 17 - -------------------------- (GAINSCO/Bank One) 19 herein, (a) no more than three (3) Interest Periods shall be in effect at any one time with respect to Eurodollar Borrowings, (b) Borrowers shall have no right to request a Eurodollar Borrowing if the interest rate applicable thereto would exceed the Maximum Rate in effect on the first day of the Interest Period applicable to such Borrowing, and (c) each Eurodollar Borrowing shall be in the amount of $250,000.00 or a greater integral multiple of $50,000.00. 2.13. ROLLOVERS AND CONVERSIONS. Borrowers may (a) convert a Eurodollar Borrowing on the last day of the applicable Interest Period to a Base Rate Borrowing, (b) convert a Base Rate Borrowing at any time to a Eurodollar Borrowing, and (c) elect a new Interest Period for a Eurodollar Borrowing, by giving a Notice of Borrowing to Lender no later than 10:00 a.m. on the third (3rd) Business Day before the conversion date or the last day of the Interest Period, as the case may be (for conversion to a Eurodollar Borrowing or election of a new Interest Period), and no later than 10:00 a.m. one (1) Business Day before the last day of the Interest Period (for conversion to an Base Rate Borrowing); provided that each Eurodollar Borrowing shall be in the amount of $250,000.00 or a greater integral multiple of $50,000.00. Absent Borrowers' Notice of Borrowing, a Eurodollar Borrowing shall be deemed converted to a Base Rate Borrowing effective when the applicable Interest Period expires. 2.14. BOOKING BORROWINGS. To the extent permitted by law, Lender may make, carry, or transfer its Borrowings at, to, or for the account of any of its branch offices or the office of any of its Affiliates. However, no Affiliate is entitled to receive any greater payment under SECTION 2.15(b) than Lender would have been entitled to receive with respect to those Borrowings. Lender agrees that it will use its reasonable efforts (consistent with its internal policies and applicable law) to make, carry, maintain, or transfer its Borrowings with its Affiliates or branch offices in an effort to eliminate or reduce to the extent possible the aggregate amounts due to it under SECTIONS 2.15(b) and 2.15(c) if, in its reasonable judgment, such efforts will not be disadvantageous to it. 2.15. SPECIAL PROVISIONS FOR EURODOLLAR BORROWINGS. (a) BASIS UNAVAILABLE OR INADEQUACY OF EURODOLLAR LOAN PRICING. If with respect to an Interest Period for any Eurodollar Borrowing, (a) Lender determines that, by reason of circumstances affecting the interbank eurodollar market generally, deposits in Dollars (in the applicable amounts) are not being offered to or by Lender in the interbank eurodollar market for such Interest Period, or (b) Lender determines that the Eurodollar Rate as determined by Lender will not adequately and fairly reflect the cost to Lender of maintaining or funding the Eurodollar Borrowing for such Interest Period, then Lender shall forthwith give notice thereof to Borrowers, whereupon until Lender notifies Borrowers that the circumstances giving rise to such suspension no longer exist, (i) the obligation of Lender to make Eurodollar Borrowings shall be suspended, and (ii) Borrowers shall either (A) repay in full the then-outstanding principal amount of the Eurodollar Borrowings, together with accrued interest thereon on the last day of the then current Interest Period applicable to such Eurodollar Borrowings, or (B) convert such Eurodollar Borrowings to Base Rate Borrowings in accordance with SECTION 2.13 on the last day of the then-current Interest Period applicable to each such Eurodollar Borrowing. REVOLVING CREDIT AGREEMENT - PAGE 18 - -------------------------- (GAINSCO/Bank One) 20 (b) ILLEGALITY. If, after the date of this Agreement, the adoption of any applicable law, rule, or regulation, or any change therein, or any change in the interpretation or administration thereof by any Governmental Authority, central bank, or comparable agency charged with the interpretation or administration thereof, or compliance by Lender 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 Lender to make, maintain or fund Eurodollar Borrowings, then Lender shall so notify Borrowers. Before giving any notice pursuant to this SECTION, Lender shall designate a different Eurodollar lending office if such designation will avoid the need for giving such notice and will not be otherwise disadvantageous to any non-trivial extent to Lender (as determined in good faith by Lender). Upon receipt of such notice, Borrowers shall either (i) repay in full the then outstanding principal amount of all Eurodollar Borrowings, together with accrued interest thereon, or (ii) convert each Eurodollar Borrowing to a Base Rate Borrowing, on either (A) the last day of the then-current Interest Period applicable to such Eurodollar Borrowing if Lender may lawfully continue to maintain and fund such Eurodollar Borrowing to such day or (B) immediately if Lender may not lawfully continue to fund and maintain such Eurodollar Borrowing to such day, provided that Borrowers shall be liable for any Funding Loss arising pursuant to such conversion. (c) INCREASED COSTS FOR EURODOLLAR BORROWINGS. If any Governmental Authority, central bank, or other comparable authority, shall at any time 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), special deposit, or similar requirement against assets of, deposits with, or for the account of, or credit extended by, Lender, or shall impose on Lender (or its Eurodollar lending office) or the interbank eurodollar market any other condition affecting its Eurodollar Borrowings, the Note, or its obligation to make Eurodollar Borrowings; and the result of any of the foregoing is to increase the cost to Lender of making or maintaining Eurodollar Borrowings, or to reduce the amount of any sum received or receivable by Lender under this Agreement, or under the Note, by an amount deemed by Lender to be material, then, within five (5) days after demand by Lender, Borrowers shall pay to Lender such additional amount or amounts as will compensate Lender for such increased cost or reduction. Lender will promptly notify Borrowers of any event of which it has knowledge, occurring after the date hereof, which will entitle Lender to compensation pursuant to this SECTION. No failure by Lender to immediately demand payment of any additional amounts payable hereunder shall constitute a waiver of Lender's right to demand payment of such amounts at any subsequent time. A certificate of Lender claiming compensation under this SECTION and setting forth the additional amount or amounts to be paid to it hereunder, together with a description in reasonable detail of the manner in which such amounts have been calculated, shall be delivered by Lender to Borrower within one hundred eighty (180) days after the incurrence thereof and shall be conclusive in the absence of manifest error. If Lender demands compensation under this Section, then Borrowers may at any time, upon at least five (5) Business Days' prior notice to such Lender, either convert such REVOLVING CREDIT AGREEMENT - PAGE 19 - -------------------------- (GAINSCO/Bank One) 21 Eurodollar Borrowings to Base Rate Borrowings in accordance with the provisions of this Agreement; provided, however, that Borrowers shall be liable for any Funding Loss arising pursuant to such actions. (d) EFFECT ON BASE RATE BORROWINGS. If notice has been given pursuant to SECTION 2.15(a) or SECTION 2.15(b) requiring that Eurodollar Borrowings to be repaid or converted, then unless and until Lender notifies Borrowers that the circumstances giving rise to such repayment no longer apply, all Borrowings shall be Base Rate Borrowings. If Lender notifies Borrowers that the circumstances giving rise to such repayment no longer apply, then Borrowers may thereafter select Borrowings to be Eurodollar Borrowings in accordance with SECTION 2.12 and SECTION 2.13. (e) FUNDING LOSSES. Borrowers shall jointly and severally indemnify Lender against any loss or reasonable expense (such loss or expense is referred to herein as a "FUNDING LOSS," such term including, but not limited to, any loss or reasonable expense sustained or incurred or to be sustained or incurred in liquidating or reemploying deposits from third parties acquired to effect or maintain such Borrowing or any part thereof as a Eurodollar Borrowing) with respect to Eurodollar Borrowings which Lender may sustain or incur as a consequence of (i) any failure by Borrowers to fulfill on the date of any Borrowing hereunder the applicable conditions set forth in SECTION 4, (ii) any failure by Borrowers to borrow hereunder or to convert Borrowings hereunder after a Conversion Notice has been given, (iii) any payment, prepayment, or conversion of a Eurodollar Borrowing required or permitted by any other provisions of this Agreement, including, without limitation, payments made due to the acceleration of the maturity of the Borrowings pursuant to SECTION 8.2, or otherwise made on a date other than the last day of the applicable Interest Period, (iv) any default in the payment or prepayment of the principal amount of any Eurodollar Borrowing or any part thereof or interest accrued thereon, as and when due and payable (at the due date thereof, by notice of prepayment or otherwise), or (v) the occurrence of a Potential Default or an Event of Default. The term "FUNDING LOSS" includes, without limitation, an amount equal to the excess, if any, as determined by Lender of (A) its cost of obtaining the funds for the Borrowing being paid, prepaid, or converted or not borrowed or converted (based on the Adjusted Eurodollar Rate applicable thereto) for the period from the date of such payment, prepayment, or conversion or failure to borrow or convert to the last day of the Interest Period for such Borrowing (or, in the case of a failure to borrow or convert, the Interest Period for the Borrowing which would have commenced on the date of such failure to borrow or convert) over (B) the amount of interest (as estimated by Lender) that would be realized by Lender in reemploying the funds so paid, prepaid or converted or not borrowed or converted for such period or Interest Period, as the case may be. A certificate of Lender setting forth any amount or amounts which Lender is entitled to receive pursuant to this SECTION 2.15(e), together with a description in reasonable detail of the manner in which such amounts have been calculated, shall be delivered to Borrowers and shall be conclusive, absent manifest error. Borrowers shall pay to Lender the amount shown as due on any certificate within five (5) days after its receipt of the same. Notwithstanding the foregoing, in no event shall Lender be permitted to receive any compensation REVOLVING CREDIT AGREEMENT - PAGE 20 - -------------------------- (GAINSCO/Bank One) 22 hereunder constituting interest in excess of the Maximum Rate. Without prejudice to the survival of any other obligations of Borrowers hereunder, the obligations of Borrowers under this SECTION 2.15(e) shall survive the termination of this Agreement and/or the payment or assignment of the Note. 2.16. TAXES. (a) Any and all payments by Borrowers hereunder or under the Note shall be made free and clear of and without deduction for any and all present or future taxes, levies, imposts, deductions, charges, or withholdings, and all liabilities with respect thereto (hereinafter referred to as "TAXES"), excluding taxes imposed on Lender's income, and franchise taxes imposed on Lender, by the jurisdiction under the laws of which Lender is organized or is or should be qualified to do business or any political subdivision thereof and, taxes imposed on Lender's income, and franchise taxes imposed on Lender by the jurisdiction of Lender's lending office or any political subdivision thereof. If Borrowers shall be required by law to deduct any Taxes from or in respect of any sum payable hereunder or under the Note to Lender, then (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 2.16) Lender 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 or 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 shall indemnify Lender 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 2.16) paid by Lender 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 five (5) days from the date Lender makes written demand therefor. (d) Within thirty (30) days after the date of any payment of Taxes, Borrowers shall furnish to Lender, at its address referred to in SECTION 9.4, the original or a certified copy of a receipt evidencing payment thereof. (e) Without prejudice to the survival of any other agreement of Borrowers hereunder, the agreements and obligations of Borrowers contained in this SECTION 2.16 shall survive the payment in full of principal and interest hereunder and under the other Loan Documents. REVOLVING CREDIT AGREEMENT - PAGE 21 - -------------------------- (GAINSCO/Bank One) 23 3. COLLATERAL To secure the payment and performance of the Obligation, the Borrowers and the Grantor Subsidiaries shall grant to Lender a perfected, first priority (except for Permitted Liens) Lien in all assets of such companies, including capital stock of certain Subsidiaries, accounts receivable, inventory, equipment, general intangibles of such companies (the "COLLATERAL"), as described in the Collateral Documents. 4. CONDITIONS PRECEDENT 4.1. INITIAL ADVANCE. The obligation of Lender to make the initial Advance hereunder is subject to the conditions precedent that, on or before the date of such Advance, (a) Borrowers shall have paid to Lender all fees to be received by Lender pursuant to this Agreement or any other Loan Document and (b) Lender shall have received duly executed copies of each of the following documents, each dated as of the date of such Advance, and each in form and substance satisfactory to Lender. (a) Articles of Incorporation. A copy of the articles of incorporation, and all amendments thereto, of each Borrower's and the other Companies, accompanied by certificates that such copy is correct and complete issued by (i) the appropriate governmental official of the state of its organization bearing a Current Date and (ii) the secretary of each such corporation dated as of the Closing Date. (b) Bylaws. A copy of the bylaws, and all amendments thereto, of each of Borrowers and the other Companies, accompanied by a certificate that each such copy is correct and complete, dated the Closing Date, executed by the secretary of each such corporation. (c) Good Standing and Authority. Certificates of the appropriate governmental officials of such jurisdictions as Lender may request, each bearing a Current Date, to the effect that Borrowers and the other Companies are in good standing with respect to payment of franchise and similar Taxes and are duly qualified to transact business therein, accompanied by the certificate of the secretary of each such corporation, dated the Closing Date, that such certificates are true and correct. (d) Incumbency. A certificate of incumbency of all officers of Borrowers and the other Companies who will be authorized to execute or attest any of the Loan Documents on behalf of such companies, dated the Closing Date, executed by their respective presidents and secretaries. (e) Resolutions. A copy of resolutions approving the Loan Documents and authorizing the transactions contemplated in this Agreement, duly adopted by the boards of directors of Borrowers and the other Companies who are party to any Loan Documents, accompanied by a certificate of the secretary of each such company dated the Closing Date, that such copy is a true and correct copy of resolutions duly adopted at a meeting of, or by unanimous written consent of, the board of directors of such company REVOLVING CREDIT AGREEMENT - PAGE 22 - -------------------------- (GAINSCO/Bank One) 24 and that such resolutions have not been amended, modified, or revoked in any respect, and are in full force and effect as of the Closing Date. (f) Opinion of Counsel. The opinion of Shannon, Gracey, Ratliff & Miller, L.L.P., counsel to Borrowers and the other Companies, satisfactory in form and substance to Lender. (g) Note. The Note, duly executed by Borrowers, properly completed, dated the Closing Date. (h) GAINSCO Pledge Agreement. The GAINSCO Pledge Agreement, duly executed by GAINSCO. (i) GSC Pledge Agreement. The GSC Pledge Agreement, duly executed by GSC. (j) Stock Certificates. Stock certificates evidencing all of the shares of capital stock pledged to Lender pursuant to the GAINSCO Pledge Agreement and the GSC Pledge Agreement, together with stock powers executed in blank by the respective owners thereof. (k) GAINSCO Security Agreement. The GAINSCO Security Agreement, duly executed by GAINSCO. (l) GSC Security Agreement. The GAINSCO Security Agreement, duly executed by GSC. (m) Subsidiary Security Agreements. The Subsidiary Security Agreements, executed by each Grantor Subsidiary. (n) Confirmations of Pledge. Confirmations of Pledge executed by each of GSC, APS, GAIC, GAPFC, RRA, MGAPFC and the Acquired Companies. (o) Surplus Debenture. The Surplus Debenture, indorsed to the order of Lender. (p) Financing Statements. Evidence that Uniform Commercial Code financing statements in proper form executed by all proper parties have been filed in all necessary filing offices. (q) Priority. Evidence that the Lien of Lender in the Collateral is of first priority. (r) Regulatory Approvals. Evidence that all consents, licenses and approvals of Governmental Authorities required in connection with the execution, delivery, performance, validity and enforceability of this Agreement and, each of the other Loan REVOLVING CREDIT AGREEMENT - PAGE 23 - -------------------------- (GAINSCO/Bank One) 25 Documents have been obtained, including, without limitation, any necessary approvals for the consummation of the transactions provided for in the Purchase Agreement. (s) Termination of Existing Facility. Evidence that GAINSCO's existing revolving credit facility with Lender has been terminated. (t) Compliance Certificate. A Compliance Certificate completed on a pro forma basis as of September 30, 1998. (u) Other Documents. Such other documents, opinions, certificates, agreements, instruments, and evidences as Lender may reasonably request. 4.2. ALL ADVANCES. The obligation of Lender to make any Advance under this Agreement (including the initial Advance) shall be subject to the conditions precedent that, as of the date of such Advance and after giving effect thereto: (a) there exists no Potential Default or Event of Default; (b) no change that would cause a Material Adverse Effect has occurred since the date of the financial statements referenced in SECTION 5.6; (c) Lender shall have received from Borrowers a Notice of Borrowing dated as of the date of such Advance and all of the statements contained in such Notice of Borrowing shall be true and correct; (d) the representations and warranties contained in each of the Loan Documents shall be true in all respects as though made on the date of such Advance; and (e) the Maximum Rate exceeds the Contract Rate. 5. REPRESENTATIONS AND WARRANTIES To induce Lender to make Advances hereunder, Borrowers represent and warrant to Lender that: 5.1. ORGANIZATION AND GOOD STANDING. Each Company is duly organized, validly existing, and in good standing under the laws of the state of its incorporation or formation, is duly qualified and is in good standing in all states in which it is doing business (except where the failure to be so qualified and maintain good standing could not have a Material Adverse Effect), has the power and authority to own its properties and assets and to transact the business in which it is engaged in each jurisdiction in which it operates, and is or will be qualified in those states wherein it proposes to transact business in the future (except where the failure to be so qualified could not have a Material Adverse Effect). 5.2. AUTHORIZATION AND POWER. Each Company has full power and authority to execute, deliver, and perform the Loan Documents to be executed by such Person, all of which has been duly authorized by all proper and necessary action. 5.3. NO CONFLICTS OR CONSENTS. Neither the execution and delivery of the Loan Documents, nor the consummation of any of the transactions therein contemplated, nor compliance with the terms and provisions thereof, will contravene or materially conflict with any Legal Requirement to which any Company is subject, any Governmental Authorization applicable to any Company, any indenture, loan agreement, mortgage, deed of trust, or other agreement or instrument binding on any Company, or any provision of the Constituent REVOLVING CREDIT AGREEMENT - PAGE 24 - -------------------------- (GAINSCO/Bank One) 26 Documents of any Company. No consent, approval, authorization, or order of any court, Governmental Authority, stockholder, or third party is required in connection with the execution, delivery, or performance by any Company of any of the Loan Documents. 5.4. ENFORCEABLE OBLIGATIONS. The Loan Documents have been duly executed and delivered by each Company, as appropriate, and are the legal and binding obligations of each Company, as appropriate, enforceable in accordance with their respective terms, except as limited by Debtor Laws. 5.5. NO LIENS. Except for the Permitted Liens, all of the properties and assets of each Company are free and clear of all Liens and other adverse claims of any nature, and each Company has good and indefeasible title to such properties and assets. 5.6. FINANCIAL CONDITION. Borrowers have delivered to Lender copies of the financial statements of the Companies as of December 31, 1997 and June 30, 1998; such financial statements are true and correct, fairly represent the financial condition of the Companies as of such date, and have been prepared in accordance with GAAP or SAP, as applicable; as of the date hereof, there are no obligations, Liabilities, or Indebtedness (including contingent and indirect Liabilities) of the Companies which are material and are not reflected in such financial statements; no Material Adverse Effect has occurred since the date of such financial statements. 5.7. FULL DISCLOSURE. There is no fact known to any Borrower that such Borrower has not disclosed to Lender which could have a Material Adverse Effect. No certificate or statement delivered by any Borrower to Lender in connection with this 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. 5.8. NO POTENTIAL DEFAULT. No event has occurred and is continuing which constitutes a Potential Default or an Event of Default. 5.9. MATERIAL AGREEMENTS. No Company is in default in any material respect under any contract or agreement to which it is a party or by which any of its properties is bound, except where such default could not have a Material Adverse Effect. 5.10. NO LITIGATION. Except as disclosed on SCHEDULE 5.10, there are no actions, suits, or legal, equitable, arbitration, or administrative proceedings pending, or to the knowledge of any Borrower threatened, against any Company that could, if adversely determined, have a Material Adverse Effect. 5.11. USE OF PROCEEDS; MARGIN STOCK. The proceeds of each Advance will be used by each Borrower solely for the purposes specified in the preamble. None of such proceeds will be used for the purpose of purchasing or carrying any "margin stock" as defined in Regulations G, T, U, or X of the Board of Governors of the Federal Reserve System or for any other purpose which might constitute this transaction a "purpose credit" within the meaning of such Regulations. If requested by Lender, then Borrowers shall furnish to Lender a statement in conformity with the requirements of the Federal Reserve Form U-1 referred to in said Regulation REVOLVING CREDIT AGREEMENT - PAGE 25 - -------------------------- (GAINSCO/Bank One) 27 U to the foregoing effect. No part of the proceeds of any Advance will be used for any purpose which violates, or is inconsistent with, the provisions of Regulation X. 5.12. TAXES. All tax returns required to be filed by each Company in any jurisdiction have been filed and all taxes (including mortgage recording taxes), assessments, fees, and other governmental charges upon each Company or upon any of its properties, income, or franchises have been paid except for taxes being contested in good faith by appropriate proceedings diligently projected and for which adequate reserves are maintained in accordance with GAAP. To the best of each Borrower's knowledge, there is no proposed tax assessment against any Company, and all tax Liabilities of each Company are adequately provided for. No income tax liability of any Company has been asserted by the Internal Revenue Service for taxes in excess of those already paid. 5.13. PRINCIPAL OFFICE, ETC. The principal office, chief executive office, and principal place of business of each Company are set forth on EXHIBIT D. Each Company maintains its principal records and books at such address. 5.14. COMPLIANCE WITH LAW. (a) Except as disclosed on SCHEDULE 5.14-1: (i) each Company is in compliance with its respective Constituent Documents and all Legal Requirements which are applicable to it or to the conduct or operation of its business or the ownership or use of any of its assets, except where such non-compliance could not have a Material Adverse Effect; and (ii) no Company has received any notice or other communication from any Governmental Authority or other Person of any event or circumstance that could constitute a violation of, or failure to comply with, any Legal Requirement. Except as disclosed on SCHEDULE 5.14-1: (i) each Company is in compliance with all of the terms and requirements of each Governmental Authorization held by such Person, except where such non-compliance could not have a Material Adverse Effect; (ii) no Company has received any notice or other communication from any Governmental Authority or other Person of any event or circumstance which could constitute a violation of, or failure to comply with, any term or requirement of any Governmental Authorization, or of any actual or potential revocation, withdrawal, cancellation, or termination of, or material modification to, any Governmental Authorization; (iii) all applications required to have been filed for the renewal of any required Governmental Authorizations have been duly filed on a timely basis with the appropriate Governmental Authorities, and all other filings required to have been made with respect to such Governmental Authorizations have been duly made on a timely basis with the appropriate Governmental Authorities; (iv) upon consummation of the transactions contemplated hereby, each Company will lawfully hold all such Governmental Authorizations; and (v) none of the Governmental Authorizations of any Company will terminate upon consummation of the transactions contemplated hereby. (b) Set forth on SCHEDULE 5.14-2 is a list of each of the Governmental Authorizations of each Company: (i) necessary to permit each such Person to lawfully REVOLVING CREDIT AGREEMENT - PAGE 26 - -------------------------- (GAINSCO/Bank One) 28 conduct and operate its respective business in the manner it currently conducts and operates such business and to permit such Person to own and use its assets in the manner in which it currently owns and uses such assets; and (ii) necessary to permit each such Person, upon a consummation of the transactions contemplated hereby, to lawfully conduct and operate its business and to permit each such Person to own and use its assets. 5.15. SUBSIDIARIES. Set forth on EXHIBIT D hereto is a complete and accurate list of all Subsidiaries of GAINSCO as of the date hereof, showing as of such date (as to each such Subsidiary) the jurisdiction of its incorporation, the owner of the outstanding Stock of such Subsidiary, and the jurisdictions in which such Subsidiary is qualified to do business as a foreign corporation. To the extent applicable, all of the outstanding Stock of all Subsidiaries has been validly issued, is fully paid and nonassessable, and is owned by GAINSCO or a Subsidiary free and clear of all Liens. 5.16. CASUALTIES. Neither the business nor the properties of any Company are affected by any environmental hazard, fire, explosion, accident, strike, lockout, or other labor dispute, drought, storm, hail, earthquake, embargo, act of God, or other casualty (whether or not covered by insurance), which could have a Material Adverse Effect. 5.17. SUFFICIENCY OF CAPITAL. Each Company is, and after consummation of this Agreement and after giving effect to all Indebtedness incurred and Liens created by the Companies in connection herewith will be, Solvent; provided, however, that no representation or warranty is made in this SECTION 5.17 with respect to APS or RRA. 5.18. COLLATERAL DOCUMENTS; DESCRIPTION AND LOCATION OF ASSETS. The Collateral Documents contain a description of all of the Collateral sufficient to grant to Lender perfected Liens therein pursuant to applicable law. Upon the filing by Lender of all Collateral Documents to be filed or recorded, Lender will have a perfected first priority Lien in the Collateral subject only to Permitted Liens. All assets of the Companies are located at the addresses listed on EXHIBIT D hereto except for inventory that is, in the ordinary course of the Companies' business, in transit. No material asset of any Company will be kept at any other address. 5.19. CORPORATE NAME. No Company has, during the preceding five (5) years, (a) used any other corporate name or tradename, or (b) been the surviving corporation of a merger or consolidation or acquired all or substantially all of the assets of any Person. 5.20. LEASES. Except as set forth on SCHEDULE 5.20, no Company is the lessee of any real or personal property. 5.21. ERISA. Each Company and each ERISA Affiliate has fulfilled its obligations under the minimum funding standards of ERISA and the Code with respect to each Plan and is in compliance in all material respects with the presently applicable provisions of ERISA and the Code, and has not incurred any liability to the PBGC or a Plan under Title IV of ERISA. 5.22. LABOR MATTERS. There are no controversies pending between any Company and any of their employees which could have a Material Adverse Effect. REVOLVING CREDIT AGREEMENT - PAGE 27 - -------------------------- (GAINSCO/Bank One) 29 5.23. MATERIAL CONTRACTS. Except for the Excess Casualty Reinsurance Contract (effective January 1, 1995) and the Employment Agreement dated August 17, 1998 between National Specialty Lines, Inc., GAINSCO and McRae Johnston, no Company is a party to any contract, the breach, violation, or termination of which could result in a Material Adverse Effect. 5.24. PERMITS, FRANCHISES, INTELLECTUAL PROPERTY, AND OTHER INTANGIBLE RIGHTS. Each Company owns, holds, and has the lawful right to use, all material Intangible Rights used in or necessary for the conduct of its business as currently conducted or proposed to be conducted. 5.25. FULL DISCLOSURE OF RIGHTS AND CLAIMS. Except as disclosed on SCHEDULE 5.10, no claims are pending, or, to the best of any Borrower's knowledge, threatened, that any Company is infringing or otherwise adversely affecting the Intangible Rights of any other Person. The consummation of the transactions contemplated by the Loan Documents will not impair the ownership of, or rights with respect to, any material Intangible Rights of any Company. 5.26. INSURANCE LICENSES. SCHEDULE 5.26 attached hereto lists all of the jurisdictions in which any Insurance Subsidiary holds active licenses (including, without limitation, licenses or certificates of authority from applicable insurance departments), permits or authorizations to transact insurance business (collectively, the "LICENSES"). No such License is the subject of a proceeding for suspension or revocation or any similar proceedings, there is no sustainable basis known to Borrower or its Insurance Subsidiaries for such a suspension or revocation, and to Borrower or such Insurance Subsidiary's knowledge no such suspension or revocation has been threatened by any licensing authority. SCHEDULE 5.26 indicates the line or lines of insurance which each Insurance Subsidiary is permitted to engage in with respect to each License therein listed. No Insurance Subsidiary transacts any insurance business, directly or indirectly, in any state in a manner or to an extent which would require it to be licensed in such state under the Laws of such state, other than as specified on SCHEDULE 5.26 hereto. 5.27. YEAR 2000 COMPLIANCE. (a) All devices, systems, machinery, information technology, computer software and hardware, and other date sensitive technology (jointly and severally, the "Systems") necessary for Borrowers or any other Company to carry on its business as presently conducted and as contemplated to be conducted in the future are Year 2000 Compliant or will be Year 2000 Compliant within a period of time calculated to result in no material disruption of any of Borrowers' or any other Company's business operations. For purposes of these provisions, "Year 2000 Complaint" means that such Systems are designed to be used prior to, during and after the Gregorian calendar year 2000 A.D. and will operate during each such time period without error relating to date data, specifically including any error relating to, or the product of, date data which represents or references different centuries or more than one century. For purposes of the first sentence of this subsection (a) a "material disruption" is a disruption that could result in a decrease of $500,000 or more in the aggregate revenue of GAINSCO and its Subsidiaries. (b) Borrowers and each other Company has: (1) undertaken a detailed inventory, review and assessment of all areas within its business and operations that REVOLVING CREDIT AGREEMENT - PAGE 28 - -------------------------- (GAINSCO/Bank One) 30 could be adversely affected by the failure of any of them to be Year 2000 Compliant on a timely basis; (2) developed a detailed plan and time line for becoming Year 2000 Compliant on a timely basis; and (3) to date, implemented that plan in accordance with that timetable in all material respects. (c) Borrowers and each other Company has, or will within 30 days after the Closing Date, made written inquiry of each of its key suppliers, vendors, and customers, and has, or will within 30 days after the Closing Date, obtained in writing confirmations for all such persons, as to whether such persons have initiated programs to become Year 2000 Compliant and on the basis of such confirmations, Borrowers reasonably believe that all such persons will be or become so compliant. For purposes hereof, "key suppliers, vendors and customers" refers to those suppliers, vendors and customers of Borrowers and the other Companies whose business failure would, with reasonable probability, result in a material adverse change in the business, properties, condition (financial or otherwise), or prospects of Borrowers or any other Company. For purposes of this paragraph, Lender, as a lender of funds under the terms of the Agreement, confirms to Borrowers that Lender has initiated its own corporate-wide Year 2000 program with respect to its lending activities. (d) The fair market value of all property pledged to Lender as Collateral to secure the Obligation is not and shall not be less than currently anticipated or subject to substantial deterioration in value because of the failure of such Collateral to be Year 2000 Compliant. 5.28. REPRESENTATIONS AND WARRANTIES. Each Notice of Borrowing shall constitute, without the necessity of specifically containing a written statement, a representation and warranty by Borrowers that no Potential Default or Event of Default exists and that all representations and warranties contained in this SECTION 5 or in any other Loan Document are true and correct on and as of the date the requested Advance is to be made. 5.29. SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All representations and warranties by Borrowers herein shall survive delivery of the Note and the making of each Advance, and any investigation at any time made by or on behalf of Lender shall not diminish Lender's right to rely thereon. 6. AFFIRMATIVE COVENANTS So long as Lender has any commitment to make Advances hereunder, and until payment in full of the Obligation, Borrowers agree that (unless Lender shall otherwise consent in writing): 6.1. FINANCIAL STATEMENTS, REPORTS, AND DOCUMENTS. Borrowers shall deliver to Lender each of the following: (a) as soon as available and in any event within 45 days after the end of each of the first three quarterly fiscal periods of each fiscal year of GAINSCO, consolidated and consolidating statements of income, shareholders' equity and cash flows of REVOLVING CREDIT AGREEMENT - PAGE 29 - -------------------------- (GAINSCO/Bank One) 31 GAINSCO and its Subsidiaries, together with separate statements for GAINSCO only, for such period and for the period from the beginning of the respective fiscal year to the end of such period, and the related consolidated and consolidating balance sheet of GAINSCO and its Subsidiaries as at the end of such period, setting forth in each case in comparative form the corresponding consolidated figures for the corresponding periods in the preceding fiscal year (except that, in the case of balance sheet, such comparison shall be to the last day of the prior fiscal year), in each case in accordance with generally accepted accounting principles, consistently applied, as at the end of, and for, such period (subject to normal year-end audit adjustments); (b) as soon as available and in any event within 90 days after the end of each fiscal year of GAINSCO, consolidated and consolidating statements of income, shareholders' equity and cash flows of GAINSCO and its Subsidiaries, together with separate statements for GAINSCO only, for such fiscal year and the related consolidated and consolidating balance sheet of GAINSCO and its Subsidiaries as at the end of such fiscal year, setting forth in each case in comparative form the corresponding consolidated figures for the preceding fiscal year, and accompanied by an opinion thereon of independent certified public accountants of recognized national standing, which opinion shall state that said consolidated financial statements present fairly, in all material respects, the consolidated financial position and results of operations of GAINSCO and its Subsidiaries as at the end of, and for, such fiscal year in accordance with generally accepted accounting principles, and a statement of such accountants to the effect that, in making the examination necessary for their opinion, nothing came to their attention that caused them to believe that the Borrowers were not in compliance with SECTIONS 7.15 through 7.22 hereof, insofar as such Sections relate to accounting matters, in each case in accordance with generally accepted accounting principles, consistently applied, as at the end of, and for, such fiscal year; (c) promptly after filing with the applicable Insurance Regulatory Authority and in any event within 45 days after the end of each of the first three quarterly fiscal periods of each fiscal year of each Insurance Subsidiary, the quarterly Statutory Statement of such Insurance Subsidiary for such quarterly fiscal period, together with the opinion thereon of a senior financial officer of such Insurance Subsidiary stating that such Statutory Statement presents fairly, in all material respects, the financial position of such Insurance Subsidiary for such quarterly fiscal period in accordance with SAP required or permitted by its Insurance Regulatory Authority; (d) promptly after filing with the applicable Insurance Regulatory Authority and in any event within 60 days after the end of each fiscal year of each Insurance Subsidiary, the annual Statutory Statement of such Insurance Subsidiary for such year, together with (i) the opinion thereon of a senior financial officer of such Insurance Subsidiary stating that said annual Statutory Statement presents fairly, in all material respects, the financial position of such Insurance Subsidiary for such fiscal year in accordance with statutory accounting practices required or permitted by the Insurance Regulatory Authority and (ii) with respect to each Insurance Subsidiary, a certificate of REVOLVING CREDIT AGREEMENT - PAGE 30 - -------------------------- (GAINSCO/Bank One) 32 the chief actuary of such Insurance Subsidiary, affirming the adequacy of reserves taken by such Insurance Subsidiary, in respect of future policyholder benefits as at the end of such fiscal year (as shown on such financial statements); (e) within 150 days after the end of each fiscal year of each Insurance Subsidiary, the report of independent certified public accountants of recognized national standing) on the annual Statutory Statements delivered pursuant to SECTION 6.1(d) hereof; (f) contemporaneously with the delivery of the financial statements required by SECTION 6.1(a) and 6.1(b), a Compliance Certificate; (g) promptly upon their becoming available, copies of all registration statements and regular periodic reports, if any, that GAINSCO shall have filed with the Securities and Exchange Commission (or any governmental agency substituted therefor) or any national securities exchange; (h) promptly upon the mailing thereof to the shareholders of any Company generally, copies of all financial statements, reports and proxy statements so mailed; (i) promptly after each Insurance Subsidiary receives the results of a triennial examination by its Insurance Regulatory Authority of its financial condition and operations and/or any of its Subsidiaries, a copy thereof; (j) promptly following the delivery or receipt by any Insurance Subsidiary or any of their respective Subsidiaries, copies of (a) each material registration, filing or submission made by or on behalf of any Insurance Subsidiary with any Insurance Regulatory Authority, except for policy form filings, (b) each material examination and/or audit report or other similar report submitted to any Insurance Subsidiary by any Insurance Regulatory Authority, (c) all material information which Lender may from time to time request with respect to the nature or status of any material deficiencies or violations reflected in any examination report or other similar report and (d) each material report, order, direction, instruction, approval, authorization, license or other notice which Borrowers or any Insurance Subsidiary may at any time receive from any Insurance Regulatory Authority. (k) as soon as available, and in any event within 90 days after the end of each fiscal year of GAINSCO, projected balance sheets and income statements, such balance sheets and income statements to be prepared on a quarterly basis for the succeeding fiscal year of GAINSCO and its Subsidiaries, on a consolidated and consolidating basis and prepared using methods consistent with the preparation of GAINSCO's financial statements required pursuant to SECTION 6.1(a), disclosing all assumptions made with respect to general economic, financial, and market conditions utilized in preparation of such projected financial statements and certified by an authorized officer of Borrowers to be (i) based upon reasonable estimates and assumptions all of which are fair in light of current conditions, (ii) prepared on the basis of the assumption stated therein, and (iii) reflective of such Person's estimates of the results of operations and other information projected therein. Such REVOLVING CREDIT AGREEMENT - PAGE 31 - -------------------------- (GAINSCO/Bank One) 33 projected financial statements shall include an updated statutory projected balance sheet and income statement for GAIC. (l) as soon as available and in any event within 45 days after the last day of each fiscal quarter (except the last) of each fiscal year of each Insurance Subsidiary, a certificate signed by an authorized officer of such Insurance Subsidiary stating the Net Amount Recoverable from Reinsurers as of such quarter end and each such reinsurer's rating with A.M. Best Company, Inc. or claims paying rating with Standard & Poors. (m) as soon as available and in any event within 60 days after the close of each fiscal year of each Insurance Subsidiary, a certificate signed by an authorized officer of such Insurance Subsidiary stating the Net Amount Recoverable from Reinsurers as of such year end and each such reinsurer's rating with A.M. Best Company, Inc. or claims paying rating with Standard & Poors. 6.2. ACTUARIAL VALUATIONS. Borrowers shall deliver to Lender, as soon as available and in any event within 120 days after the end of each fiscal year of GAINSCO, a report by an independent actuarial consulting firm of recognized national standing reviewing the adequacy of loss and loss adjustment expense reserves as at the end of the last fiscal year of each Insurance Subsidiary, determined in accordance with SAP, and stating an estimated amount of minimum reserves, it being agreed that in each case such independent firm will be provided access to or copies of all relevant valuations relating to the insurance business of each such Insurance Subsidiary in the possession of or available to the Borrowers or their Subsidiaries. 6.3. OTHER INFORMATION. Such other information concerning the business, properties or financial condition of any Company as Lender shall reasonably request including audit reports, registration statements, or other reports or notices provided to shareholders of GAINSCO and, if applicable, filed with the Securities and Exchange Commission. 6.4. PAYMENT OF TAXES AND OTHER INDEBTEDNESS. Borrowers shall, and shall cause each of the other Companies to, pay and discharge (a) all taxes, assessments, and governmental charges or levies imposed upon it or upon its income or profits, or upon any property belonging to it, before delinquent, (b) all lawful claims (including claims for labor, materials, and supplies), which, if unpaid, might give rise to a Lien upon any of its property, and (c) all of its other Indebtedness, except as prohibited under the Loan Documents; provided, however, that the Companies shall not be required to pay any such tax, assessment, charge, or levy if and so long as the amount, applicability, or validity thereof shall currently be contested in good faith by appropriate proceedings and appropriate accruals and appropriate reserves have been established in accordance with GAAP. 6.5. MAINTENANCE OF EXISTENCE AND RIGHTS; CONDUCT OF BUSINESS. Borrowers shall, and shall cause each of the other Companies to, preserve and maintain its existence and all of its rights, privileges, and franchises (including Intangible Rights) necessary in the normal conduct of its business, and conduct its business in an orderly and efficient manner consistent with good business practices and in accordance with all Legal Requirements of any Governmental REVOLVING CREDIT AGREEMENT - PAGE 32 - -------------------------- (GAINSCO/Bank One) 34 Authority, except where the failure to so preserve or maintain could not have a Material Adverse Effect. 6.6. NOTICE OF DEFAULT. Borrowers shall furnish to Lender, immediately upon becoming aware of the existence of any condition or event which constitutes a Potential Default or an Event of Default, written notice specifying the nature and period of existence thereof and the action which Borrowers are taking or proposes to take with respect thereto. 6.7. OTHER NOTICES. Borrowers shall, and shall cause each of the other Companies to, promptly notify Lender of (a) any material adverse change in its financial condition or its business, (b) any default under any material agreement, contract, or other instrument to which it is a party or by which any of its properties are bound, or any acceleration of the maturity of any Indebtedness owing by any Company, (c) any material adverse claim against or affecting any Company or any of its properties, and (d) the commencement of, and any material determination in, any litigation with any third party (other than lawsuits arising in the ordinary course of an Insurance Subsidiary's business initiated against an insured to which such Insurance Subsidiary is also named as a defendant under a state direct action statute) or any proceeding before any Governmental Authority affecting any Company. 6.8. OPERATIONS AND PROPERTIES. Borrowers shall, and shall cause each of the other Companies to, (a) act prudently and in accordance with customary industry standards in managing and operating its assets and properties, and (b) keep in good working order and condition, ordinary wear and tear excepted, all of its assets and properties which are necessary to the conduct of its business. 6.9. BOOKS AND RECORDS; ACCESS. Borrowers shall, and shall cause each of the other Companies to, give any representative of Lender access upon reasonable notice and during all business hours to, and permit such representative to examine, copy, or make excerpts from, any and all books, records, and documents in the possession of any Company and relating to its affairs, and to inspect any of the properties of any Company. Borrowers shall, and shall cause each of the other Companies to, maintain complete and accurate books and records of its transactions in accordance with good accounting practices. 6.10. COMPLIANCE WITH LAW. Borrowers shall, and shall cause each of the other Companies to, comply with all applicable Legal Requirements of any Governmental Authority, a breach of which could have a Material Adverse Effect. 6.11. INSURANCE. Borrowers shall, and shall cause each of the other Companies to, keep all insurable property, real and personal, adequately insured at all times in such amounts and against such risks as are customary for Persons in similar businesses operating in the same vicinity, specifically to include a policy of hazard, casualty, fire, and extended coverage insurance covering all assets, business interruption insurance (where feasible), liability insurance, and worker's compensation insurance, in every case under a policy with a financially sound and reputable insurance company and with only such deductibles as are customary, and all to contain a mortgagee or loss payee clause naming Lender as its interest may appear. REVOLVING CREDIT AGREEMENT - PAGE 33 - -------------------------- (GAINSCO/Bank One) 35 6.12. AUTHORIZATIONS AND APPROVALS. Borrowers shall, and shall cause each of the other Companies to, promptly obtain, from time to time at its own expense, all Governmental Authorizations as may be required to enable it to comply with its obligations hereunder and under the other Loan Documents. 6.13. FURTHER ASSURANCES. Borrowers shall, and shall cause each of the other Companies to, make, execute, and deliver or file or cause the same to be done, all such notices, additional agreements, mortgages, assignments, financing statements, or other assurances, and take any and all such other action, as Lender may, from time to time, deem reasonably necessary or proper in connection with any of the Loan Documents, the obligations of any Company thereunder. 6.14. INDEMNITY BY BORROWERS. Borrowers shall indemnify, defend, and hold harmless Lender and its Representatives (individually, an "INDEMNITEE" and collectively, the "INDEMNITEES") from and against any and all loss, liability, obligation, damage, penalty, judgment, claim, deficiency, and expense (including interest, penalties, attorneys' fees, and amounts paid in settlement) to which any Indemnitee may become subject arising out of this Agreement and the other Loan Documents other than those which arise by reason of the gross negligence or willful misconduct of Lender, BUT SPECIFICALLY INCLUDING ANY LOSS, LIABILITY, OBLIGATION, DAMAGE, PENALTY, JUDGMENT, CLAIM, DEFICIENCY, OR EXPENSE ARISING OUT OF THE SOLE OR CONCURRENT NEGLIGENCE OF LENDER OR ANY OF ITS REPRESENTATIVES. Borrowers shall also indemnify, protect, and hold each Indemnitee harmless from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, claims, proceedings, costs, expenses (including without limitation all reasonable attorneys' fees and legal expenses whether or not suit is brought), and disbursements of any kind or nature whatsoever which may at any time be imposed on, incurred by, or asserted against such Indemnitee, with respect to or as a direct or indirect result of the violation by any Company of any Environmental Law; or with respect to or as a direct or indirect result of any Company's use, generation, manufacture, production, storage, release, threatened release, discharge, disposal, or presence of a Hazardous Material on, under, from, or about real property. The provisions of and undertakings and indemnifications set forth in this SECTION 6.14 shall survive (a) the satisfaction and payment of the Obligation and termination of this Agreement, and (b) the release of any Liens held by Lender on real property or the extinguishment of such Liens by foreclosure or action in lieu thereof; provided, however, that the indemnification set forth herein shall not extend to any act or omission by Lender with respect to any property subsequent to Lender becoming the owner of such property and with respect to which property such claim, loss, damage, liability, fine, penalty, charge, proceeding, order, judgment, action, or requirement arises subsequent to the acquisition of title thereto by Lender. 6.15. ERISA COMPLIANCE. Borrowers shall, and shall cause each of the other Companies and each ERISA Affiliate to: (a) at all times, make prompt payment of all contributions required under all Plans and required to meet the minimum funding standards set forth in ERISA with respect to its Plan; (b) within thirty (30) days after the filing thereof, furnish to Lender copies of each annual report/return (Form 5500 series), as well as all schedules and REVOLVING CREDIT AGREEMENT - PAGE 34 - -------------------------- (GAINSCO/Bank One) 36 attachments required to be filed with the Department of Labor and/or the Internal Revenue Service pursuant to ERISA, and the regulations promulgated thereunder, in connection with each of its Plans for each Plan year; (c) notify Lender 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 Lender, as to the reason therefor and the action, if any, proposed to be taken with respect thereto; and (d) furnish to Lender upon its request, such additional information concerning any of its Plans as may be reasonably requested. 6.16. YEAR 2000 COMPLIANCE. (a) Borrowers shall furnish such additional information, statements and other reports with respect to Borrowers' and the other Companies activities, course of action and progress towards becoming Year 2000 Compliant as Lender may request from time to time. (b) In the event of any change in circumstances that causes or will likely cause any of Borrowers' or any other Companies' representations and warranties with respect to its being or becoming Year 2000 Compliant to no longer be true (hereinafter, referred to as a "CHANGE IN CIRCUMSTANCES") then Borrowers shall promptly, and in any event within ten (10) days of receipt of information regarding a Change in Circumstances, provide Lender with written notice (the "NOTICE") that describes in reasonable detail the Change in Circumstances and how much Change in Circumstances caused or will likely cause Borrowers' or any other Company's representations and warranties with respect to being or becoming Year 2000 Compliant to no longer be true. Borrowers shall, within ten (10) days of a request, also provide Lender with any additional information Lender requests of Borrowers in connection with the Notice and/or Change in Circumstances. (c) Borrowers shall give any representative of Lender access during all business hours to permit such representative to inspect any of the properties and Systems of Borrower or any Subsidiary, and to project test the Systems to determine if they are Year 2000 Compliant in an integrated environment, all at the sole cost and expense of Lender. 6.17. REAL ESTATE COLLATERAL. Borrowers shall, and shall cause each of the Grantor Subsidiaries to, promptly after the acquisition thereof, grant to Lender a first priority deed of trust or mortgage lien on any parcel of real property acquired by it having a market value of $1,000,000 or more, with the documents and agreements governing such transaction to be satisfactory in form and substance to Lender. 7. NEGATIVE COVENANTS So long as Lender has any commitment to make Advances hereunder, and until payment in full of the Obligation, Borrowers agree that (unless Lender shall otherwise consent in writing): REVOLVING CREDIT AGREEMENT - PAGE 35 - -------------------------- (GAINSCO/Bank One) 37 7.1. LIMITATION ON INDEBTEDNESS. Borrowers shall not, and shall not permit any of the other Companies to, incur, guarantee, or otherwise be or become, directly or indirectly, liable in respect of any Indebtedness, except (a) Indebtedness arising out of this Agreement, (b) other Indebtedness the existence of which does not result in any violation of any covenant contained in this Agreement, including without limitation SECTIONS 7.16 or 7.17. 7.2. NEGATIVE PLEDGE. Borrowers shall not, and shall not permit any of the other Companies to, create, incur, permit, or suffer to exist any Lien upon any of its property or assets, now owned or hereafter acquired, except for (a) Permitted Liens and (b) Liens securing the Obligation. 7.3. NEGATIVE PLEDGE AGREEMENTS. Borrowers shall not, and shall not permit any of the other Companies to, enter into any agreement (excluding this Agreement or any other Loan Documents) prohibiting the creation or assumption of any Lien upon any of its property, revenues, or assets, whether now owned or hereafter acquired, or the ability of any Subsidiary to make any payments, directly or indirectly, to Borrowers by way of Dividends, advances, repayments of loans, repayments of expenses, accruals, or otherwise. 7.4. RESTRICTIONS ON DIVIDENDS. GAINSCO shall not declare or make, or incur any liability to make, any Dividend if an Event of Default then exists or would exist after giving effect thereto. Borrowers shall not, and shall permit any of the other Companies to, declare or make, or incur any liability to make, any Dividend except to a Borrower. 7.5. LIMITATION ON INVESTMENTS. Borrowers shall not, and shall not permit any of the other Companies to, make or have outstanding any Investments in any Person, except for (a) the Companies' ownership of Stock of Subsidiaries, (b) Cash Equivalent Investments and such other "cash equivalent" investments as Lender may from time to time approve in writing, (c) advances to employees and third parties not to exceed $100,000 in the aggregate at any time outstanding, (d) advances by any Company to another Company, (e) acquisitions of assets, including Stock, in the property and casualty insurance business provided that the total consideration paid or contracted to be paid for such acquisitions in any fiscal year of GAINSCO does not exceed the Acquisition/Sale Cap, (f) Investments by any Insurance Subsidiary permitted by applicable law made in the ordinary course of its business and (g) the Lalande Acquisition. No Company shall make any earn-out or similar payment with respect to any acquisition at any time that an Event of Default or Potential Default exists or would result from such payment. 7.6. CERTAIN TRANSACTIONS. Borrowers shall not, and shall not permit any of the other Companies to, enter into any transaction with, or pay any management fees to, any Affiliate; provided, however, that (a) the Companies may enter into transactions with (i) any other Company, and (ii) with Affiliates (other than the Companies) upon terms not less favorable to the Companies than would be obtainable at the time in comparable, arms-length transactions with Persons other than Affiliates and (b) any Subsidiary of GAINSCO may pay management and other fees to either Borrower. 7.7. MANAGEMENT AGREEMENT. Borrowers shall not permit to occur any amendment or other modification to the Management Agreement. REVOLVING CREDIT AGREEMENT - PAGE 36 - -------------------------- (GAINSCO/Bank One) 38 7.8. LIMITATION ON SALE OF PROPERTIES. Borrowers shall not, and shall not permit any of the other Companies to (a) sell, assign, exchange, lease, or otherwise dispose of any of its properties, rights, assets, or business, whether now owned or hereafter acquired, except in the ordinary course of its business and for a fair consideration, or (b) sell, assign, or discount any accounts receivable, except that Borrowers and any Insurance Subsidiary may sell its assets for cash to the extent that the proceeds from all such sales in any fiscal year of GAINSCO do not exceed the lesser of (x) 10% of Consolidated Net Worth as of the date of determination or (y) 10% of Consolidated Revenue for such year (the "ACQUISITION/SALE CAP"). 7.9. ACQUISITIONS; SUBSIDIARIES. Borrowers shall not, and shall not permit any of the other Companies to, (a) form, incorporate, acquire, or make any Investment in any Subsidiary, except the Subsidiaries listed on EXHIBIT D or (b) acquire all or substantially all of the assets or Stock of any class of any other Person, except for Investments permitted under SECTION 7.5. 7.10. LIQUIDATION, MERGERS, CONSOLIDATIONS, AND DISPOSITIONS OF SUBSTANTIAL ASSETS. Borrowers shall not, and shall not permit any of the other Companies to, dissolve or liquidate, or become a party to any merger or consolidation, or acquire by purchase, lease, or otherwise all or substantially all of the assets or Stock of any Person, or sell, transfer, lease, or otherwise dispose of all or any substantial part of its property or assets or business; except that. (a) any Subsidiary of GAINSCO may be merged or consolidated with or into either Borrower (provided that such Borrower shall be the continuing or surviving corporation) or with any one or more Subsidiaries of GAINSCO; (b) any Subsidiary of GAINSCO may sell, lease, transfer or otherwise dispose of any or all of its assets (upon voluntary liquidation or otherwise) to GAINSCO or any Subsidiary of GAINSCO; (c) any Insurance Subsidiary may enter into any Reinsurance Agreement in the ordinary course of business in accordance with its normal underwriting, indemnity and retention policies, provided that no Insurance Subsidiary shall enter into any transaction resulting in Surplus Relief; (d) sales of assets permitted by SECTION 7.8; and (e) the sale of the capital stock or assets of APS for fair consideration. 7.11. LINES OF BUSINESS; RECEIVABLES POLICY. Borrowers shall not, and shall not permit any of the other Companies to, directly or indirectly, engage in any business other than its existing business, or discontinue any of its material existing lines of business. Borrowers shall not, and shall not permit any of the other Companies to, make any material change in its credit and collection policy, which change would materially impair the collectibility of its receivables, or rescind, cancel, or modify any receivable, except in the ordinary course of business. 7.12. FISCAL YEAR. Borrowers shall not, and shall not permit any of the other Companies to, change its fiscal year or method of accounting. REVOLVING CREDIT AGREEMENT - PAGE 37 - -------------------------- (GAINSCO/Bank One) 39 7.13. SURPLUS DEBENTURE. GSC shall not at any time amend, modify, cancel, terminate or discharge, or waive compliance with, or fail to enforce, the terms of the Surplus Debenture. 7.14. SALE AND LEASEBACK. Borrowers shall not, and shall not permit any of the other Companies to, enter into any arrangement with any Person pursuant to which any Company will lease, as lessee, any property which it owned as of the date hereof and which it sold, transferred, or otherwise disposed of to such other Person. 7.15. MINIMUM CONSOLIDATED NET WORTH. Borrowers shall not permit Consolidated Net Worth, as of the last day of any fiscal quarter of GAINSCO, to be less than the sum of (a) $85,000,000.00, plus (b) an amount equal to the sum of fifty percent (50%) of Consolidated Net Income for each prior fiscal quarter beginning with the quarter ending December 31, 1998 through the last day of the fiscal quarter ending prior to or on the determination date. In making such determination, (1) the amount determined pursuant to clause (b) shall be equal to zero for any quarter for which there is a net loss and (2) the amounts included in net income (determined in accordance with GAAP) resulting from changes in accounting principles to the extent that such changes increase intangibles shall not be included in net income for purposes of this subsection. 7.16. FIXED CHARGES COVERAGE RATIO. Borrowers shall not, as of the last day of any fiscal quarter of GAINSCO, permit the Fixed Charges Coverage Ratio of GAINSCO to be less than 1.5 to 1.0 at any fiscal quarter end through December 31, 2001 or 1.6 to 1.0 at any fiscal quarter end thereafter. 7.17. LEVERAGE RATIO. Borrowers shall not permit, as of the last day of any fiscal quarter of GAINSCO, the ratio of (a) Total Debt to (b) Total Capitalization to exceed 0.2 to 1.0. 7.18. RISK-BASED CAPITAL RATIO. Borrowers shall not permit the ratio of the Total Adjusted Capital of GAIC or MGAIC at the end of any fiscal year to the Company Action Level Risk-Based Capital of such Insurance Subsidiary on such date to be less than 2.25 to 1.0. 7.19. MINIMUM STATUTORY SURPLUS. Borrowers shall not permit the Statutory Surplus of GAIC to be less than (i) $67,000,000 as of the end of any of GAIC's first three fiscal quarters in each fiscal year or (ii) $69,000,000 as of the end of any of its fiscal years. 7.20. CAPITAL EXPENDITURES. Borrowers shall not permit the Capital Expenditures of GAINSCO and its Subsidiaries to exceed $1,000,000 in the aggregate during any fiscal year. 7.21. MINIMUM STATUTORY EARNINGS. Borrowers shall not permit the Statutory Earnings of GAIC to be less than (a) $2,250,000 for its fiscal year ending December 31, 1999, (b) $4,500,000 for its fiscal year ending December 31, 2000, (c) $5,500,000 for its fiscal year ending December 31, 2001 and (d) $6,000,000 for any fiscal year thereafter. 7.22. AMOUNT RECOVERABLE FROM REINSURERS. Borrowers will not permit, with respect to any Insurance Subsidiary at the end of any of its fiscal quarters, the Net Amount Recoverable from Reinsurers from reinsurers rated below A- by either Standard & Poor's Rating Service or REVOLVING CREDIT AGREEMENT - PAGE 38 - -------------------------- (GAINSCO/Bank One) 40 A.M. Best Company, Inc., the payment of which is not secured in a manner and to an extent acceptable to such Insurance Subsidiary's Insurance Regulatory Authority, to exceed 5% of the Statutory Surplus of such Insurance Subsidiary on such date. In making such determination, amounts recoverable under Quota Share Reinsurance Treaty attaching January 1, 1993 among GAIC, MGAIC and GCMIC shall be excluded. Any reinsurer whose rating is downgraded below the rating set forth above during a treaty year will be replaced at renewal if such downgrading results in the noncompliance by Borrowers with this SECTION 7.22. 8. EVENTS OF DEFAULT 8.1. 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: (a) any Borrower shall fail to pay when due any installment of principal or interest on the Principal Debt or any part thereof; or (b) any representation or warranty made under this Agreement, or any of the other Loan Documents, shall prove to be untrue or inaccurate in any material respect as of the date on which such representation or warranty is made or deemed to have been made; or (c) default shall occur in the performance of (i) any of the covenants or agreements of either Borrower contained in SECTION 6.1 and SECTION 7, or (ii) any other covenants or agreements of any Company contained herein or in any of the other Loan Documents and, in the case of (II), such failure shall continue for fifteen (15) days; or (d) an Event of Default shall occur under any Collateral Document (as such term is defined in such Collateral Document); or (e) default shall occur in the payment of any material Indebtedness (other than the Obligation) of any Company or default shall occur in respect of any note or credit agreement relating to any such Indebtedness and such default shall continue for more than the period of grace, if any, specified therein; or (f) any of the Loan Documents shall cease to be legal, valid, and binding agreements enforceable against the Person executing the same in accordance with its terms, shall be terminated, become or be declared ineffective or inoperative or cease to provide the respective liens, security interests, rights, titles, interests, remedies, powers, or privileges intended to be provided thereby; or any Borrower or Grantor Subsidiary shall deny that such Company has any further liability or obligation under any of the Loan Documents; or (g) any Company shall (i) apply for or consent to the appointment of a receiver, trustee, custodian, intervenor, or liquidator of itself or of all or a substantial part of such Company's assets, (ii) file a voluntary petition in bankruptcy, admit in writing that such Company is unable to pay such Company's debts as they become due, or REVOLVING CREDIT AGREEMENT - PAGE 39 - -------------------------- (GAINSCO/Bank One) 41 generally not pay such Company's debts as they become due, (iii) make a general assignment for the benefit of creditors, (iv) file a petition or answer seeking reorganization of 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 such Company in any bankruptcy, reorganization, or insolvency proceeding, or (vi) take corporate or partnership action for the purpose of effecting any of the foregoing; or (h) an involuntary proceeding shall be commenced against any Company seeking bankruptcy or reorganization of such Company or the appointment of a receiver, custodian, trustee, liquidator, or other similar official of such Company, or all or substantially all of such Company's assets, and such proceeding shall not have been dismissed within sixty (60) days of the filing thereof; or an order, order for relief, judgment, or decree shall be entered by any court of competent jurisdiction or other competent authority approving a petition or complaint seeking reorganization of any Company or appointing a receiver, custodian, trustee, liquidator, or other similar official of such Company, or of all or substantially all of such Company's assets; or (i) any final judgment(s) for the payment of money in excess of the sum of $100,000.00 in the aggregate shall be rendered against any Company and such judgment(s) shall not be satisfied or discharged, or the enforcement thereof stayed by appropriate proceedings, at least ten (10) days prior to the date on which any of such Person's assets could be lawfully sold to satisfy such judgment; or (j) GCMIC shall fail to make a scheduled payment on the Surplus Debenture in accordance with the terms thereof; or (k) (i) Any Governmental Authority shall issue any order of conservation, supervision or any other order of like effect relating to either Borrower or any Insurance Subsidiary, (ii) any License shall be revoked, the revocation of which could cause a Material Adverse Effect, or (iii) any insurance commissioner or any other insurance regulator of any state intervenes or takes any formal steps towards intervening in the management of the business or operations of either Borrower or any Insurance Subsidiary or either Borrower or any Insurance Subsidiary facilitates or takes any affirmative action with the intention of facilitating such intervention; or (l) a reserve adequacy report delivered pursuant to SECTION 6.2 indicates that the GAINSCO and its Insurance Subsidiaries shall have reserves (net of reinsurance) of less than the higher of (a) the low end of the adequacy range set forth in such report, if a range is provided therein, and (b) 95% of the lower of (1) the midpoint of the adequacy range set forth in such report, if a range is provided therein and (2) the adequacy point estimate set forth in such report, if any; provided that if at the time of the delivery of any such report GAINSCO and its Insurance Subsidiaries do not have reserves as provided above, no Event of Default shall occur under this SECTION until the 60th day after the REVOLVING CREDIT AGREEMENT - PAGE 40 - -------------------------- (GAINSCO/Bank One) 42 delivery of such report and then only if GAINSCO and its Insurance Subsidiaries have failed to comply with the foregoing requirement within such 60-day period; or (m) a Change in Control shall occur. 8.2. REMEDIES UPON EVENT OF DEFAULT. If any Event of Default shall occur and be continuing, then Lender may, without notice, exercise any one or more of the following rights and remedies, and any other remedies provided in any of the Loan Documents, as Lender in its sole discretion may deem necessary or appropriate: (a) terminate Lender's commitment to lend hereunder, (b) declare the Obligation or any part thereof 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 of intention to accelerate, or other notice of any kind, all of which Borrowers hereby expressly waive, anything contained herein or in the Note to the contrary notwithstanding, (c) reduce any claim to judgment, or (d) without notice of default or demand, pursue and enforce any of Lender's rights and remedies under the Loan Documents, or otherwise provided under or pursuant to any applicable law or agreement; provided, however, if any Event of Default specified in SECTIONS 8.1(G) or (H) shall occur, then the Obligation shall thereupon become due and payable concurrently therewith, and Lender's obligation to lend shall immediately terminate hereunder, without any further action by Lender and without presentment, demand, protest, notice of default, notice of acceleration or of intention to accelerate, or other notice of any kind, all of which Borrowers hereby expressly waive. 8.3. PERFORMANCE BY LENDER. If any Company fails to perform any covenant, duty, or agreement contained in any of the Loan Documents, then Lender may perform or attempt to perform such covenant, duty, or agreement on behalf of such Company. In such event, Borrowers shall, at the request of Lender, promptly pay any amount expended by Lender in such performance or attempted performance to Lender at its principal office in Dallas, Texas together with interest thereon at the Maximum Rate from the date of such expenditure until paid. Notwithstanding the foregoing, it is expressly understood that Lender shall not assume any liability or responsibility for the performance of any duties of any Company hereunder or under any of the Loan Documents and none of the covenants or other provisions contained in this Agreement shall, or shall be deemed to, give Lender the right or power to exercise control over the management and affairs of any Company. 8.4. ORDER OF APPLICATION. (a) NO DEFAULT. If no Event of Default exists, then except as specifically provided in the Loan Documents, any payments shall be applied to the Obligation in the order and manner as Borrowers direct. (b) DEFAULT. If an Event of Default exists, then any payment (including proceeds from the exercise of any rights and remedies in the Collateral) shall be applied in the following order: (i) to all fees and expenses which Lender has not been paid or reimbursed in accordance with the Loan Documents; REVOLVING CREDIT AGREEMENT - PAGE 41 - -------------------------- (GAINSCO/Bank One) 43 (ii) to accrued interest on the Principal Debt; and (iii) to the remaining Obligation in the order and manner as Lender deems appropriate. 9. MISCELLANEOUS 9.1. ACCOUNTING REPORTS. All financial reports or projections furnished by any Person to Lender pursuant to this Agreement shall be prepared in such form and such detail as shall be satisfactory to Lender, shall be prepared on the same basis as those prepared by such Person in prior years, and, where applicable, shall be the same financial reports and projections as those furnished to such Person's officers and directors. 9.2. WAIVER. No failure to exercise, and no delay in exercising, on the part of Lender, any right hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right. The rights of Lender under the Loan Documents shall be in addition to all other rights provided by law. No modification or waiver of any provision of any Loan Document, nor consent to departure therefrom, shall be effective unless in writing and no such consent or waiver shall extend beyond the particular case and purpose involved. 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. 9.3. PAYMENT OF EXPENSES. Borrowers agree to pay Lender on demand all out-of-pocket costs and expenses of Lender (including, without limitation, the reasonable attorneys' fees of Lender's counsel) incurred in connection with the preservation and enforcement of Lender's rights under the Loan Documents, and all reasonable costs and expenses of Lender (including without limitation the reasonable fees and expenses of Lender's counsel) in connection with the negotiation, preparation, execution, delivery, and administration of the Loan Documents. 9.4. NOTICES. Any communications required or permitted to be given by any of the Loan Documents must be (a) in writing and personally delivered or mailed by prepaid certified or registered mail, or (b) made by facsimile transmission delivered or transmitted, to the party to whom such notice of communication is directed, to the address of such party shown opposite its name on the signature pages hereof. Any such communication shall be deemed to have been given (whether actually received or not) on the day it is personally delivered or, if transmitted by facsimile transmission, on the day that such communication is transmitted as aforesaid subject to telephone confirmation of receipt; provided, however, that any notice received by Lender after 10:00 a.m. Dallas, Texas time on any day from Borrowers pursuant to SECTION 2.2 (with respect to a Notice of Borrowing) shall be deemed for the purposes of such SECTION to have been given by Borrowers on the next succeeding day, or if mailed, on the fifth (5th) day after it is marked as aforesaid. Any party may change its address for purposes of this Agreement by giving notice of such change to the other parties pursuant to this SECTION 9.4. 9.5. GOVERNING LAW. THIS 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 REVOLVING CREDIT AGREEMENT - PAGE 42 - -------------------------- (GAINSCO/Bank One) 44 SUCH STATE AND THE APPLICABLE FEDERAL LAWS OF THE UNITED STATES OF AMERICA SHALL GOVERN THE VALIDITY, CONSTRUCTION, ENFORCEMENT, AND INTERPRETATION OF THIS AGREEMENT AND ALL OF THE OTHER LOAN DOCUMENTS. 9.6. CHOICE OF FORUM; CONSENT TO SERVICE OF PROCESS AND JURISDICTION. Any suit, action, or proceeding against Borrowers with respect to this Agreement, the Note, or other Loan Documents, or any judgment entered by any court in respect thereof, may be brought in the courts of the State of Texas, County of Dallas, or in the United States courts located in the State of Texas as Lender in its sole discretion may elect and Borrowers hereby irrevocably submit to the nonexclusive jurisdiction of such courts for the purpose of any such suit, action, or proceeding. Borrowers hereby irrevocably consent to the service of process in any suit, action, or proceeding in said court by the mailing thereof by Lender by registered or certified mail, postage prepaid, to each Borrower's address shown opposite its name on the signature pages hereof. Nothing herein or in any of the other Loan Documents shall affect the right of Lender to serve process in any other manner permitted by law or shall limit the right of Lender to bring any action or proceeding against Borrowers or with respect to any of its property in courts in other jurisdiction. Borrowers hereby irrevocably waive any objections which it may now or hereafter have to the laying of venue of any suit, action, or proceeding arising out of or relating to this Agreement, the Note, or any other Loan Documents brought in the courts located in the State of Texas, County of Dallas, and hereby further irrevocably waive any claim that any such suit, action, or proceeding brought in any such court has been brought in any inconvenient forum. Any action or proceeding by any Borrower against Lender shall be brought only in a court located in Dallas County, Texas. 9.7. INVALID PROVISIONS. Any provision of any Loan Document held by a court of competent jurisdiction to be illegal, invalid or unenforceable and shall not invalidate the remaining provisions of such Loan Document which shall remain in full force and the effect thereof shall be confined to the provision held invalid or illegal. 9.8. MAXIMUM INTEREST RATE. Regardless of any provision contained in any of the Loan Documents, Lender shall never be entitled to receive, collect, or apply as interest (whether termed interest herein or deemed to be interest by operation of law or judicial determination) on the Note any amount in excess of interest calculated at the Maximum Rate, and, in the event that any Lender ever receives, collects, or applies as interest any such excess, then the 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 Obligation is paid in full, then any remaining excess shall forthwith be paid to Borrowers. In determining whether or not the interest paid or payable under any specific contingency exceeds interest calculated at the Maximum Rate, Borrowers and Lender shall, to the maximum extent permitted under applicable law: (a) characterize any non-principal payment as an expense, fee, or premium rather than as interest; (b) exclude voluntary prepayments and the effects thereof; and (c) amortize, prorate, allocate, and spread, in equal parts, the total amount of interest throughout the entire contemplated term of the Note; provided that, if the 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 interest calculated at the Maximum Rate, then Lender shall refund to REVOLVING CREDIT AGREEMENT - PAGE 43 - -------------------------- (GAINSCO/Bank One) 45 Borrowers the amount of such excess or credit the amount of such excess against the principal amount of the Note and, in such event, Lender shall not be subject to any penalties provided by any laws for contracting for, charging, taking, reserving, or receiving interest in excess of interest calculated at the Maximum Rate. 9.9. NON-LIABILITY OF LENDER. The relationship between the Companies and Lender is, and shall at all times remain, solely that of borrower and lender and Lender has no fiduciary or other special relationship with any Company. 9.10. SET-OFF. If an Event of Default shall have occurred and be continuing Lender is hereby authorized at any time and from time to time, without notice to Borrowers (any such notice being hereby expressly waived by Borrowers), to set-off and apply any and all deposits (general, special time, demand, provisional, or final) at any time held and other indebtedness at any time owing by Lender to or for the credit or the account of either Borrower against any and all of the Obligation, irrespective of whether or not Lender shall have made any demand under such Loan Documents and although such Obligation may be unmatured. Lender agrees promptly to notify Borrowers after any such set-off and application; provided that the failure to give such notice shall not affect the validity of such set-off and application. The rights and remedies of Lender hereunder are in addition to other rights and remedies (including, without limitation, other rights of set-off) which Lender may have. 9.11. SUCCESSORS AND ASSIGNS. The Loan Documents shall be binding upon and inure to the benefit of Borrowers and Lender and their respective successors, assigns, and legal representatives; provided, however, that Borrowers may not, without the prior written consent of Lender, assign any rights, powers, duties, or obligations thereunder. Lender reserves the right to sell all or a portion of its interest in the Loan Documents, and Lender shall have the right to disclose any information in its possession regarding any Company, or any assets pledged to Lender in connection herewith to any potential transferee of the Note or any part thereof. 9.12. TEXAS FINANCE CODE. Borrowers and Lender hereby agree that the provisions of Chapter 346 of the Texas Finance Code, as amended (regulating certain revolving credit loans and revolving tri-party accounts), shall not apply to the Loan Documents. 9.13. HEADINGS. SECTION headings are for convenience of reference only and shall in no way affect the interpretation of this Agreement. 9.14. SURVIVAL. All representations and warranties made by Borrowers herein shall survive delivery of the Note and the making of the Loan. 9.15. PARTICIPATIONS. Lender shall have the right to enter into participation agreements with other banks with respect to the Note, and grant participations in the rate of other loan documents but such participation shall not affect the rights and duties of such Lender hereunder vis-a-vis Borrowers. Each actual or proposed participant shall be entitled to receive all information received by Lender regarding the creditworthiness of Borrowers, including, without limitation, information required to be disclosed to a participant pursuant to Banking Circular 181 REVOLVING CREDIT AGREEMENT - PAGE 44 - -------------------------- (GAINSCO/Bank One) 46 (Rev., August 2, 1984), issued by the Comptroller of the Currency (whether the actual or proposed participant is subject to the circular or not). 9.16. NO THIRD PARTY BENEFICIARY. The parties do not intend the benefits of this Agreement to inure to any third party, nor shall any Loan Document or any course of conduct by any party hereto be construed to make or render Lender or any of its officers, directors, agents, or employees liable (a) to any materialman, supplier, contractor, subcontractor, purchaser, or lessee of any property owned by any Borrower, or (b) for debts or claims accruing to any such Persons against any Borrower. 9.17. WAIVER OF JURY TRIAL. BORROWERS AND LENDER HEREBY VOLUNTARILY, KNOWINGLY, IRREVOCABLY AND UNCONDITIONALLY WAIVE ANY RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) BETWEEN OR AMONG BORROWERS AND LENDER ARISING OUT OF OR IN ANY WAY RELATED TO THIS AGREEMENT, ANY OTHER LOAN DOCUMENT, OR ANY RELATIONSHIP BETWEEN LENDER AND BORROWERS. THIS PROVISION IS A MATERIAL INDUCEMENT TO LENDER TO PROVIDE THE FINANCING DESCRIBED HEREIN. 9.18. CAPITAL ADEQUACY. If, after the date hereof, Lender shall have determined that either (a) the adoption of any applicable law, rule, regulation, or guideline regarding capital adequacy, or any change therein, or any change in the interpretation or administration thereof by any Governmental Authority, central bank, or comparable agency charged with the interpretation or administration thereof, or (b) compliance by Lender (or any lending office of Lender) with any request or directive regarding capital adequacy (whether or not having the force of law) of any such authority, central bank, or comparable agency, has or would have the effect of reducing the rate of return on Lender's capital as a consequence of its or Borrowers' obligations hereunder to a level below that which Lender could have achieved but for such adoption, change, or compliance (taking into consideration Lender's policies with respect to capital adequacy) by an amount deemed by Lender to be material, then from time-to-time, within ten (10) days after demand by Lender, Borrowers shall pay to Lender such additional amount or amounts as will adequately compensate Lender for such reduction. Lender will promptly notify Borrowers of any event of which it has actual knowledge, occurring after the date thereof, which will entitle Lender to compensation pursuant to this SECTION 9.18. A certificate of Lender claiming compensation under this SECTION 9.18 and setting forth the additional amount or amounts to be paid to it hereunder, together with the description of the manner in which such amounts have been calculated, shall be conclusive in the absence of manifest error. In determining such amount, Lender may use any reasonable averaging and attribution methods. 9.19. MULTIPLE COUNTERPARTS. This Agreement may be executed in any number of counterparts, all of which taken together shall constitute one and the same agreement, and any of the parties hereto may execute this Agreement by signing any such counterpart. REVOLVING CREDIT AGREEMENT - PAGE 45 - -------------------------- (GAINSCO/Bank One) 47 9.20. ARBITRATION. LENDER AND BORROWERS AGREE THAT UPON THE WRITTEN DEMAND OF ANY OF THEM, WHETHER MADE BEFORE OR AFTER THE INSTITUTION OF ANY LEGAL PROCEEDINGS, BUT PRIOR TO THE RENDERING OF ANY JUDGMENT IN THAT PROCEEDING, ALL DISPUTES, CLAIMS AND CONTROVERSIES BETWEEN THEM, WHETHER INDIVIDUAL, JOINT, OR CLASS IN NATURE, ARISING FROM THIS AGREEMENT, ANY LOAN DOCUMENT OR OTHERWISE, INCLUDING WITHOUT LIMITATION CONTRACT DISPUTES AND TORT CLAIMS, SHALL BE RESOLVED BY BINDING ARBITRATION PURSUANT TO THE COMMERCIAL RULES OF THE AMERICAN ARBITRATION ASSOCIATION ("AAA"). ANY ARBITRATION PROCEEDING HELD PURSUANT TO THIS ARBITRATION PROVISION SHALL BE CONDUCTED IN THE CITY NEAREST THE BORROWERS' ADDRESS HAVING AN AAA REGIONAL OFFICE, OR AT ANY OTHER PLACE SELECTED BY MUTUAL AGREEMENT OF THE PARTIES. NO ACT TO TAKE OR DISPOSE OF ANY COLLATERAL SHALL CONSTITUTE A WAIVER OF THIS ARBITRATION PROVISION OR BE PROHIBITED BY THIS ARBITRATION PROVISION. THIS ARBITRATION PROVISION SHALL NOT LIMIT THE RIGHT OF EITHER PARTY DURING ANY DISPUTE, CLAIM OR CONTROVERSY TO SEEK, USE AND EMPLOY ANCILLARY, OR PRELIMINARY RIGHTS AND/OR REMEDIES, JUDICIAL OR OTHERWISE, FOR THE PURPOSES OF REALIZING UPON, PRESERVING, PROTECTING, FORECLOSING UPON 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 REMEDIES INCLUDE, WITHOUT LIMITATION, OBTAINING INJUNCTIVE RELIEF OR A TEMPORARY RESTRAINING ORDER, INVOKING A POWER OF SALE UNDER ANY DEED OF TRUST OR MORTGAGE, OBTAINING A WRIT OF ATTACHMENT OR IMPOSITION OF A RECEIVERSHIP, OR EXERCISING ANY RIGHTS RELATING TO PERSONAL PROPERTY, INCLUDING EXERCISING THE RIGHT OF SET-OFF, OR TAKING OR DISPOSING OF SUCH PROPERTY WITH OR WITHOUT JUDICIAL PROCESS PURSUANT TO THE UNIFORM COMMERCIAL CODE. ANY DISPUTES, CLAIMS OR CONTROVERSIES CONCERNING THE LAWFULNESS OR REASONABLENESS OF AN ACT, OR EXERCISE OF ANY RIGHT OR REMEDY CONCERNING ANY COLLATERAL, INCLUDING ANY CLAIM TO RESCIND, REFORM OR OTHERWISE MODIFY ANY AGREEMENT RELATING TO THE COLLATERAL, SHALL ALSO BE ARBITRATED; PROVIDED, HOWEVER, THAT NO ARBITRATOR SHALL HAVE THE RIGHT OR THE POWER TO ENJOIN OR RESTRAIN ANY ACT OF EITHER PARTY. JUDGMENT UPON ANY AWARD RENDERED BY ANY ARBITRATOR MAY BE ENTERED IN ANY COURT HAVING JURISDICTION. THE STATUTE OF LIMITATIONS, ESTOPPEL, WAIVER, LACHES AND SIMILAR DOCTRINES WHICH WOULD OTHERWISE BE APPLICABLE IN AN ACTION BROUGHT BY A PARTY SHALL BE APPLICABLE IN ANY ARBITRATION PROCEEDING, AND THE COMMENCEMENT OF AN ARBITRATION PROCEEDING SHALL BE DEEMED THE COMMENCEMENT OF ANY ACTION FOR THESE PURPOSES. THE FEDERAL ARBITRATION ACT (TITLE 9 OF THE UNITED STATES CODE) SHALL APPLY TO THE CONSTRUCTION, INTERPRETATION AND ENFORCEMENT OF THIS ARBITRATION PROVISION. 9.21. ENTIRETY. THIS AGREEMENT, THE NOTE, AND THE OTHER LOAN DOCUMENTS REFERRED TO HEREIN EMBODY THE FINAL, ENTIRE AGREEMENT AMONG THE PARTIES HERETO AND SUPERSEDE ANY AND ALL PRIOR COMMITMENTS, AGREEMENTS, REPRESENTATIONS, AND UNDERSTANDINGS, WHETHER WRITTEN OR ORAL, RELATING TO THE SUBJECT MATTER HEREOF AND MAY NOT BE CONTRADICTED OR VARIED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OR DISCUSSIONS OF THE PARTIES HERETO. THERE ARE NO ORAL AGREEMENTS AMONG THE PARTIES HERETO. THE PROVISIONS OF THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS TO WHICH ANY BORROWER IS A PARTY MAY BE AMENDED OR WAIVED ONLY BY AN INSTRUMENT IN WRITING SIGNED BY THE PARTIES HERETO. REVOLVING CREDIT AGREEMENT - PAGE 46 - -------------------------- (GAINSCO/Bank One) 48 9.22. CONFIDENTIALITY. Lender agrees to keep confidential any information furnished or made available to it by any Company pursuant to this Agreement that is marked confidential; provided that nothing herein shall prevent Lender from disclosing such information (a) to any Affiliate of Lender, or any officer, director, employee, agent, or advisor of Lender or any Affiliate of Lender, (b) to any other Person if reasonably incidental to the administration of the credit facility provided herein, (c) as required by any Legal Requirement, (d) upon the order of any court or administrative agency, (e) upon the request or demand of any Governmental Authority, (f) that is or becomes available to the public or that otherwise becomes available to Lender other than as a result of a disclosure by Lender prohibited by this Agreement, (g) in connection with any litigation to which Lender or any of its Affiliates may be a party, (h) to the extent necessary in connection with the exercise of any remedy under this Agreement or any other Loan Document, and (i) subject to provisions substantially similar to those contained in this SECTION, to any actual or proposed participant or assignee. [SIGNATURE PAGE FOLLOWS] REVOLVING CREDIT AGREEMENT - PAGE 47 - -------------------------- (GAINSCO/Bank One) 49 IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the day and year first above written. Addresses for Notice: BORROWERS: 500 Commerce Street GAINSCO, INC. Fort Worth, Texas 76102 Attention: Chief Financial Officer Telecopy: (817) 338-1454 By: /s/ GLENN W. ANDERSON --------------------------------- Glenn W. Anderson President and Chief Executive Officer 500 Commerce Street GAINSCO SERVICE CORP. Fort Worth, Texas 76102 Attention: Chief Financial Officer Telecopy: (817) 338-1454 By: /s/ DANIEL J. COOTS --------------------------------- Daniel J. Coots Senior Vice President and Chief Financial Officer LENDER: 1717 Main Street, 4th Floor BANK ONE, TEXAS, NATIONAL ASSOCIATION Dallas, Texas 75201 Attention: Mr. Robert Humphreys Telecopy: (214) 290-2332 By: /s/ ROBERT HUMPHREYS --------------------------------- Robert Humphreys Vice President REVOLVING CREDIT AGREEMENT - PAGE 48 - -------------------------- (GAINSCO/Bank One) EX-10.51 3 PROMISSORY NOTE TO BANK ONE, TEXAS, N.A. 1 EXHIBIT 10.51 PROMISSORY NOTE Dallas, Texas $18,000,000.00 November 13, 1998 FOR VALUE RECEIVED, on or before October 1, 2003 ("Maturity Date"), the undersigned and if more than one, each of them, jointly and severally (hereinafter referred to as "Borrower"), promises to pay to the order of BANK ONE, TEXAS, NATIONAL ASSOCIATION ("Bank") at its offices in Dallas County, Texas, at 1717 Main Street, Dallas, Texas 75201, the principal amount of EIGHTEEN MILLION AND 00/100 DOLLARS ($18,000,000.00) ("Total Principal Amount"), or such amount less than the Total Principal Amount which is outstanding from time to time if the total amount outstanding under this Promissory Note ("Note") is less than the Total Principal Amount, on the dates and in the principal amounts provided in the Credit Agreement (as such term is hereinafter defined) and to pay interest on such portion of the Total Principal Amount which has been advanced to Borrower from the date advanced until paid at the rates per annum provided in the Credit Agreement; provided, however, that if not sooner paid in accordance with the provisions of the Credit Agreement, the outstanding principal balance of this Note, together with all accrued but unpaid interest, shall be due and payable on the Maturity Date. This Note evidences obligations and indebtedness from time to time owing by Borrower to Bank pursuant to that certain Credit Agreement of even date herewith by and between Borrower and Bank ("Credit Agreement"), and is secured by the collateral security provided for therein. This Note, the Credit Agreement and all other documents evidencing, securing, governing, guaranteeing and/or pertaining to this Note, including but not limited to those documents described above, are hereinafter collectively referred to as the "Loan Documents." The holder of this Note is entitled to the benefits and security provided in the Loan Documents. Under the Credit Agreement, Borrower may request advances and make payments hereunder from time to time, provided that it is understood and agreed that the aggregate principal amount outstanding from time to time hereunder shall not at any time exceed the Total Principal Amount. The unpaid balance of this Note shall increase and decrease with each new advance or payment hereunder, as the case may be. This Note shall not be deemed terminated or canceled prior to the Maturity Date, although the entire principal balance hereof may from time to time be paid in full. Borrower may borrow, repay and reborrow hereunder. Unless otherwise agreed to in writing, or otherwise required by applicable law, payments will be applied first to unpaid accrued interest, then to principal, and any remaining amount to any unpaid collection costs, delinquency charges and other charges; provided, however, upon delinquency or other Event of Default, Bank reserves the right to apply payments among principal, interest, delinquency charges, collection costs and other charges, at its discretion. All payments of principal of or interest on this Note shall be made in lawful money of the United States of America in immediately available funds, at the address of Bank indicated above, or such other place as the holder of this Note shall designate in writing to Borrower. If any payment of principal of or interest on this Note shall become due on a day which is not a Business Day (as hereinafter defined), such payment shall be made on the next succeeding Business Day and any such extension of time shall be included in computing interest in connection with such payment. As used herein, the term "Business Day" shall mean any day other than a Saturday, Sunday or any other day on which national banking associations are authorized to be closed. The books and records of Bank shall be prima facie evidence of all outstanding principal of and accrued and unpaid interest on this Note. Borrower agrees that no advances under this Note shall be used for personal, family or household purposes, and that all advances hereunder shall be used solely for business, commercial, investment or other similar purposes. Borrower agrees that upon the occurrence of any Event of Default (as such term is defined in the Credit Agreement), the holder of this Note may, at its option, without further notice or demand, (i) declare the outstanding principal balance of and accrued but unpaid interest on this Note at once due and payable, (ii) refuse to advance any additional amounts under this Note, (iii) foreclose all liens securing payment hereof, (iv) pursue any and all other rights, remedies and recourses available to the holder hereof, including but not limited to any such rights, remedies or recourses under the Loan Documents, at law or in equity, or (v) pursue any combination of the foregoing. The failure to exercise the option to accelerate the maturity of this Note or any other right, remedy or recourse available to the holder hereof upon the occurrence of an Event of Default hereunder shall not constitute a waiver of the right of the holder of this Note to exercise the same at that time or at any subsequent time with respect to such Event of Default or any other Event of Default. The rights, remedies and recourses of the holder hereof, as provided in this Note PROMISSORY NOTE - PAGE 1 - --------------- (GAINSCO) 2 and in any of the other Loan Documents, shall be cumulative and concurrent and may be pursued separately, successively or together as often as occasion therefore shall arise, at the sole discretion of the holder hereof. The acceptance by the holder hereof of any payment under this Note which is less than the payment in full of all amounts due and payable at the time of such payment shall not (i) constitute a waiver of or impair, reduce, release or extinguish any right, remedy or recourse of the holder hereof, or nullify any prior exercise of any such right, remedy or recourse, or (ii) impair, reduce, release or extinguish the obligations of any party liable under any of the Loan Documents as originally provided herein or therein. In no event shall Chapter 346 of the Texas Finance Code (which regulates certain revolving loan accounts and revolving tri-party accounts) apply to this Note. To the extent that Chapter 303 of the Texas Finance Code is applicable to this Note, the "weekly ceiling" specified in Chapter 303 is the applicable ceiling; provided that, if any applicable law permits greater interest, the law permitting the greatest interest shall apply. If this Note is placed in the hands of an attorney for collection, or is collected in whole or in part by suit or through probate, bankruptcy or other legal proceedings of any kind, Borrower agrees to pay, in addition to all other sums payable hereunder, all costs and expenses of collection, including but not limited to reasonable attorneys' fees. Borrower and any and all endorsers and guarantors of this Note severally waive presentment for payment, notice of nonpayment, protest, demand, notice of protest, notice of intent to accelerate, notice of acceleration and dishonor, diligence in enforcement and indulgences of every kind and without further notice hereby agree to renewals, extensions, exchanges or releases of collateral, taking of additional collateral, indulgences or partial payments, either before or after maturity. THIS NOTE HAS BEEN EXECUTED UNDER, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF TEXAS, EXCEPT AS SUCH LAWS ARE PREEMPTED BY APPLICABLE FEDERAL LAWS. BORROWER: GAINSCO, INC. By: /s/ GLENN W. ANDERSON ------------------------------------------ Glenn W. Anderson, President and Chief Executive Officer GAINSCO SERVICE CORP. By: /s/ DANIEL J. COOTS ------------------------------------------ Daniel J. Coots, Senior Vice President and Chief Financial Officer PROMISSORY NOTE - PAGE 2 - --------------- (GAINSCO) EX-10.52 4 SECURITY AGREEMENT BY GAINSCO, INC. 1 EXHIBIT 10.53 PLEDGE AGREEMENT THIS PLEDGE AGREEMENT ("Agreement") is made as of the 13th day of November, 1998, by GAINSCO, INC., a Texas corporation (hereinafter called "Pledgor", whether one or more), in favor of BANK ONE, TEXAS, NATIONAL ASSOCIATION ("Bank"). Pledgor hereby agrees with Bank as follows: 1. DEFINITIONS. As used in this Agreement, the following terms shall have the meanings indicated below: (a) The term "Borrower" shall mean GAINSCO, Inc., a Texas corporation and GAINSCO Service Corp., a Texas corporation, or either of them. (b) The term "Code" shall mean the Uniform Commercial Code as in effect in the State of Texas on the date of this Agreement or as it may hereafter be amended from time to time. (c) The term "Collateral" shall mean all property specifically described on Schedule A attached hereto and made a part hereof. The term Collateral, as used herein, shall also include (i) all certificates, instruments and/or other documents evidencing the foregoing, (ii) all renewals, replacements and substitutions of all of the foregoing, (iii) all Additional Property (as hereinafter defined), and (iv) all PRODUCTS and PROCEEDS of all of the foregoing. The designation of proceeds does not authorize Pledgor to sell, transfer or otherwise convey any of the foregoing property. The delivery at any time by Pledgor to Secured Party of any property as a pledge to secure payment or performance of any indebtedness or obligation whatsoever shall also constitute a pledge of such property as Collateral hereunder. (d) The term "Indebtedness" shall mean all indebtedness, obligations and liabilities of Borrower to Secured Party of any kind or character, now existing or hereafter arising, whether direct, indirect, related, unrelated, fixed, contingent, liquidated, unliquidated, joint, several or joint and several, including without limitation all indebtedness, obligations and liabilities of Borrower to Secured Party now existing or hereafter arising by note, draft, acceptance, guaranty, endorsement, letter of credit, assignment, purchase, overdraft, discount, indemnity agreement or otherwise, (ii) all accrued but unpaid interest on any of the indebtedness described in (i) above, (iii) all obligations of Borrower to Secured Party under any documents evidencing, securing, governing and/or pertaining to all or any part of the indebtedness described in (i) and (ii) above, (iv) all costs and expenses incurred by Secured Party in connection with the collection and administration of all or any part of the indebtedness and obligations described in (i), (ii) and (iii) above or the protection or preservation of, or realization upon, the collateral securing all or any part of such indebtedness and obligations, including without limitation all reasonable attorneys' fees, and (v) all renewals, extensions, modifications and rearrangements of the indebtedness and obligations described in (i), (ii), (iii) and (iv) above. (e) The term "Loan Documents" shall mean all instruments and documents evidencing, securing, governing, guaranteeing and/or pertaining to the Indebtedness, including without limitation the Revolving Credit Agreement dated as of November 13, 1998 (the "Credit Agreement") among GAINSCO, Inc., GAINSCO Service Corp. and Bank. (f) The term "Obligated Party" shall mean any party other than Borrower who secures, guarantees and/or is otherwise obligated to pay all or any portion of the Indebtedness. (g) The term "Secured Party" shall mean Bank, its successors and assigns, including without limitation, any party to whom Bank, or its successors or assigns, may assign its rights and interests under this Agreement. All words and phrases used herein which are expressly defined in Section 1.201, Chapter 8 or Chapter 9 of the Code shall have the meaning provided for therein. Other words and phrases defined elsewhere in the Code shall have the PLEDGE AGREEMENT - PAGE 1 - ---------------- GAINSCO, INC. 2 meaning specified therein except to the extent such meaning is inconsistent with a definition in Section 1.201, Chapter 8 or Chapter 9 of the Code. 2. SECURITY INTEREST. As security for the Indebtedness, Pledgor, for value received, hereby grants to Secured Party a continuing security interest in the Collateral. 3. ADDITIONAL PROPERTY. Collateral shall also includes the following property (collectively, the "Additional Property") which Pledgor becomes entitled to receive or shall receive in connection with any other Collateral: (a) any stock certificate, including without limitation, any certificate representing a stock dividend or any certificate in connection with any recapitalization, reclassification, merger, consolidation, conversion, sale of assets, combination of shares, stock split or spin-off; (b) any option, warrant, subscription or right, whether as an addition to or in substitution of any other Collateral; (c) any dividends or distributions of any kind whatsoever, whether distributable in cash, stock or other property; (d) any interest, premium or principal payments; and (e) any conversion or redemption proceeds; provided, however, that until the occurrence of an Event of Default (as hereinafter defined), Pledgor shall be entitled to all cash dividends and all interest paid on the Collateral (except interest paid on any certificate of deposit pledged hereunder) free of the security interest created under this Agreement. All Additional Property received by Pledgor (except for dividends permitted to be retained by Pledgor pursuant to the immediately preceding sentence) shall be received in trust for the benefit of Secured Party. All Additional Property and all certificates or other written instruments or documents evidencing and/or representing the Additional Property that is received by Pledgor, together with such instruments of transfer as Secured Party may request, shall immediately be delivered to or deposited with Secured Party and held by Secured Party as Collateral under the terms of this Agreement. If the Additional Property received by Pledgor shall be shares of stock or other securities, such shares of stock or other securities shall be duly endorsed in blank or accompanied by proper instruments of transfer and assignment duly executed in blank with, if requested by Secured Party, signatures guaranteed by a bank or member firm of the New York Stock Exchange, all in form and substance satisfactory to Secured Party. Secured Party shall be deemed to have possession of any Collateral in transit to Secured Party or its agent. 4. VOTING RIGHTS. As long as no Event of Default shall have occurred hereunder, any voting rights incident to any stock or other securities pledged as Collateral may be exercised by Pledgor; provided, however, that Pledgor will not exercise, or cause to be exercised, any such voting rights, without the prior written consent of Secured Party, if the direct or indirect effect of such vote will result in an Event of Default hereunder. 5. MAINTENANCE OF COLLATERAL. Other than the exercise of reasonable care to assure the safe custody of any Collateral in Secured Party's possession from time to time, Secured Party does not have any obligation, duty or responsibility with respect to the Collateral. Without limiting the generality of the foregoing, Secured Party shall not have any obligation, duty or responsibility to do any of the following: (a) ascertain any maturities, calls, conversions, exchanges, offers, tenders or similar matters relating to the Collateral or informing Pledgor with respect to any such matters; (b) fix, preserve or exercise any right, privilege or option (whether conversion, redemption or otherwise) with respect to the Collateral unless (i) Pledgor makes written demand to Secured Party to do so, (ii) such written demand is received by Secured Party in sufficient time to permit Secured Party to take the action demanded in the ordinary course of its business, and (iii) Pledgor provides additional collateral, acceptable to Secured Party in its sole discretion; (c) collect any amounts payable in respect of the Collateral (Secured Party being liable to account to Pledgor only for what Secured Party may actually receive or collect thereon); (d) sell all or any portion of the Collateral to avoid market loss; (e) sell all or any portion of the Collateral unless and until (i) Pledgor makes written demand upon Secured Party to sell the Collateral, and (ii) Pledgor provides additional collateral, acceptable to Secured Party in its sole discretion; or (f) hold the Collateral for or on behalf of any party other than Pledgor. 6. REPRESENTATIONS AND WARRANTIES. Pledgor hereby represents and warrants the following to Secured Party: (a) Due Authorization. The execution, delivery and performance of this Agreement and all of the other Loan Documents by Pledgor have been duly authorized by all necessary corporate action of Pledgor, to the extent Pledgor is a corporation, or by all necessary partnership action, to the extent Pledgor is a partnership. PLEDGE AGREEMENT - PAGE 2 - ---------------- GAINSCO, INC. 3 (b) Enforceability. This Agreement and the other Loan Documents constitute legal, valid and binding obligations of Pledgor, enforceable in accordance with their respective terms, except as limited by bankruptcy, insolvency or similar laws of general application relating to the enforcement of creditors' rights and except to the extent specific remedies may generally be limited by equitable principles. (c) Ownership and Liens. Pledgor has good and indefeasible title to the Collateral free and clear of all liens, security interests, encumbrances or adverse claims, except for the security interest created by this Agreement. No dispute, right of setoff, counterclaim or defense exists with respect to all or any part of the Collateral. Pledgor has not executed any other security agreement currently affecting the Collateral and no financing statement or other instrument similar in effect covering all or any part of the Collateral is on file in any recording office except as may have been executed or filed in favor of Secured Party. (d) No Conflicts or Consents. Neither the ownership, the intended use of the Collateral by Pledgor, the grant of the security interest by Pledgor to Secured Party herein nor (except for restrictions imposed by any applicable Insurance Holding Company Laws (as hereinafter defined) the exercise by Secured Party of its rights or remedies hereunder, will (i) conflict with any provision of (A) any domestic or foreign law, statute, rule or regulation, (B) the articles or certificate of incorporation, charter, bylaws or partnership agreement, as the case may be, of Pledgor, or (C) any agreement, judgment, license, order or permit applicable to or binding upon Pledgor or otherwise affecting the Collateral, or (ii) result in or require the creation of any lien, charge or encumbrance upon any assets or properties of Pledgor or of any person except as may be expressly contemplated in the Loan Documents. Except as expressly contemplated in the Loan Documents, no consent, approval, authorization or order of, and no notice to or filing with, any court, governmental authority or third party is required in connection with the grant by Pledgor of the security interest herein or the exercise by Secured Party of its rights and remedies hereunder. (e) Security Interest. Pledgor has and will have at all times full right, power and authority to grant a security interest in the Collateral to Secured Party in the manner provided herein, free and clear of any lien, security interest or other charge or encumbrance. This Agreement creates a legal, valid and binding security interest in favor of Secured Party in the Collateral. (f) Location. Pledgor's residence or chief executive office, as the case may be, and the office where the records concerning the Collateral are kept is located at its address set forth on the signature page hereof. (g) Solvency of Pledgor. As of the date hereof, and after giving effect to this Agreement and the completion of all other transactions contemplated by Pledgor at the time of the execution of this Agreement, (i) Pledgor is and will be solvent, (ii) the fair saleable value of Pledgor's assets exceeds and will continue to exceed Pledgor's liabilities (both fixed and contingent), (iii) Pledgor is and will continue to be able to pay its debts as they mature, and (iv) if Pledgor is not an individual, Pledgor has and will have sufficient capital to carry on Pledgor's businesses and all businesses in which Pledgor is about to engage. (h) Nature of Ownership. Pledgor is the registered owner of the securities pledged as Collateral and a certificate has been issued in Pledgor's name to evidence Pledgor's ownership in such securities. (i) Securities/100% Ownership. Any certificates evidencing securities pledged as Collateral are valid and genuine and have not been altered. All securities pledged as Collateral have been duly authorized and validly issued, are fully paid and non-assessable, and were not issued in violation of the preemptive rights of any party or of any agreement by which Pledgor or the issuer thereof is bound. No restrictions or conditions exist with respect to the transfer or voting of any securities pledged as Collateral, except as has been disclosed to Secured Party in writing. To the best of Pledgor's knowledge, no issuer of such securities (other than securities of a class which are publicly traded) has any outstanding stock rights, rights to subscribe, options, warrants or convertible securities outstanding or any other rights outstanding entitling any party to have issued to such party capital stock of such issuer, except as has been disclosed to PLEDGE AGREEMENT - PAGE 3 - ---------------- GAINSCO, INC. 4 Secured Party in writing. Pledgor owns 100% of the issued and outstanding shares of capital stock of each issuer listed on Schedule A attached hereto. (j) Chattel Paper, Documents and Instruments. The security interest in chattel paper, documents and instruments of Pledgor granted hereunder is valid and genuine, and all such chattel paper, documents and instruments have only one original counterpart. No party other than Pledgor or Secured Party is in actual or constructive possession of any such chattel paper, documents or instruments. (k) Surplus Debenture. With regard to the Surplus Debenture described on Schedule A, as of the date hereof, the unpaid principal balance of such Surplus Debenture is $2,600,000 and the payment of interest thereon is current. No dispute, right of setoff, counterclaim or defense exists with respect to such Surplus Debenture. 7. AFFIRMATIVE COVENANTS. Pledgor will comply with the covenants contained in this Section at all times during the period of time this Agreement is effective unless Secured Party shall otherwise consent in writing. (a) Ownership and Liens. Pledgor will maintain good and indefeasible title to all Collateral free and clear of all liens, security interests, encumbrances or adverse claims, except for the security interest created by this Agreement and the security interests and other encumbrances expressly permitted by the other Loan Documents. Pledgor will not permit any dispute, right of setoff, counterclaim or defense to exist with respect to all or any part of the Collateral. Pledgor will cause any financing statement or other security instrument with respect to the Collateral to be terminated, except as may exist or as may have been filed in favor of Secured Party. Pledgor will defend at its expense Secured Party's right, title and security interest in and to the Collateral against the claims of any third party. (b) Inspection of Books and Records. Pledgor will keep adequate records concerning the Collateral and will permit Secured Party and all representatives and agents appointed by Secured Party to inspect Pledgor's books and records of or relating to the Collateral at any time during normal business hours, to make and take away photocopies, photographs and printouts thereof and to write down and record any such information. (c) Adverse Claim. Pledgor covenants and agrees to promptly notify Secured Party of any claim, action or proceeding affecting title to the Collateral, or any part thereof, or the security interest created hereunder and, at Pledgor's expense, defend Secured Party's security interest in the Collateral against the claims of any third party. Pledgor also covenants and agrees to promptly deliver to Secured Party a copy of all written notices received by Pledgor with respect to the Collateral, including without limitation, notices received from the issuer of any securities pledged hereunder as Collateral. (d) Delivery of Instruments and/or Certificates. Contemporaneously herewith, Pledgor covenants and agrees to deliver to Secured Party any certificates, documents or instruments representing or evidencing the Collateral, together with Pledgor's endorsement thereon and/or accompanied by proper instruments of transfer and assignment duly executed in blank with, if requested by Secured Party, signatures guaranteed by a bank or member firm of the New York Stock Exchange, all in form and substance satisfactory to Secured Party. If required by Secured Party, Pledgor also covenants and agrees to cooperate with Secured Party in registering the pledge of the securities pledged as Collateral with the issuer of such securities. (e) Further Assurances. Pledgor will from time to time at its expense promptly execute and deliver all further instruments and documents and take all further action necessary or appropriate or that Secured Party may request in order (i) to perfect and protect the security interest created or purported to be created hereby and the first priority of such security interest, (ii) to enable Secured Party to exercise and enforce its rights and remedies hereunder in respect of the Collateral, and (iii) to otherwise effect the purposes of this Agreement, including without limitation, executing and filing such financing or continuation statements, or any amendments thereto. PLEDGE AGREEMENT - PAGE 4 - ---------------- GAINSCO, INC. 5 (f) Chattel Paper, Documents and Instruments. Pledgor will take such action as may be requested by Secured Party in order to cause any chattel paper, documents or instruments to be valid and enforceable and will cause all chattel paper to have only one original counterpart. Upon request by Secured Party, Pledgor will deliver to Secured Party all originals of chattel paper, documents or instruments and will mark all chattel paper with a legend indicating that such chattel paper is subject to the security interest granted hereunder. 8. NEGATIVE COVENANTS. Pledgor will comply with the covenants contained in this Section at all times during the period of time this Agreement is effective, unless Secured Party shall otherwise consent in writing. (a) Transfer or Encumbrance. Pledgor will not (i) sell, assign (by operation of law or otherwise) or transfer Pledgor's rights in any of the Collateral, (ii) grant a lien or security interest in or execute, file or record any financing statement or other security instrument with respect to the Collateral to any party other than Secured Party, or (iii) deliver actual or constructive possession of any certificate, instrument or document evidencing and/or representing any of the Collateral to any party other than Secured Party. (b) Impairment of Security Interest. Pledgor will not take or fail to take any action which would in any manner impair the value or enforceability of Secured Party's security interest in any Collateral. (c) Dilution of Ownership. As to any securities pledged as Collateral (other than securities of a class which are publicly traded), Pledgor will not consent to or approve of the issuance of (i) any additional shares of any class of securities of such issuer (unless immediately upon issuance additional securities are pledged and delivered to Secured Party pursuant to the terms hereof to the extent necessary to give Secured Party a security interest after such issuance in at least the same percentage of such issuer's outstanding securities as Secured Party had before such issuance), (ii) any instrument convertible voluntarily by the holder thereof or automatically upon the occurrence or non-occurrence of any event or condition into, or exchangeable for, any such securities, or (iii) any warrants, options, contracts or other commitments entitling any third party to purchase or otherwise acquire any such securities. (d) Restrictions on Securities. Pledgor will not enter into any agreement creating, or otherwise permit to exist, any restriction or condition upon the transfer, voting or control of any securities pledged as Collateral, except as consented to in writing by Secured Party. 9. RIGHTS OF SECURED PARTY. Secured Party shall have the rights contained in this Section at all times during the period of time this Agreement is effective. (a) Power of Attorney. Pledgor hereby irrevocably appoints Secured Party as Pledgor's attorney-in-fact, such power of attorney being coupled with an interest, with full authority in the place and stead of Pledgor and in the name of Pledgor or otherwise, to take any action and to execute any instrument which Secured Party may from time to time in Secured Party's discretion deem necessary or appropriate to accomplish the purposes of this Agreement, including without limitation, the following action: (i) subject to any applicable Insurance Holding Company Laws, transfer any securities, instruments, documents or certificates pledged as Collateral in the name of Secured Party or its nominee; (ii) use any interest, premium or principal payments, conversion or redemption proceeds or other cash proceeds received in connection with any Collateral to reduce any of the Indebtedness; (iii) exchange any of the securities pledged as Collateral for any other property upon any merger, consolidation, reorganization, recapitalization or other readjustment of the issuer thereof, and, in connection therewith, to deposit and deliver any and all of such securities with any committee, depository, transfer agent, registrar or other designated agent upon such terms and conditions as Secured Party may deem necessary or appropriate; (iv) exercise or comply with any conversion, exchange, redemption, subscription or any other right, privilege or option pertaining to any securities pledged as Collateral; provided, however, except as provided herein, Secured Party shall not have a duty to exercise or comply with any such right, privilege or option (whether conversion, redemption or otherwise) and shall not be responsible for any delay or failure to do so; and (v) file any claims or take any action or institute any PLEDGE AGREEMENT - PAGE 5 - ---------------- GAINSCO, INC. 6 proceedings which Secured Party may deem necessary or appropriate for the collection and/or preservation of the Collateral or otherwise to enforce the rights of Secured Party with respect to the Collateral. (b) Performance by Secured Party. If Pledgor fails to perform any agreement or obligation provided herein, Secured Party may itself perform, or cause performance of, such agreement or obligation, and the expenses of Secured Party incurred in connection therewith shall be a part of the Indebtedness, secured by the Collateral and payable by Pledgor on demand. (c) Notification of Account Debtors and Other Rights. With respect to chattel paper or instruments which are Collateral, Secured Party, without notice to Pledgor, shall have the right at any time and from time to time after the occurrence and during the continuation of an Event of Default to notify and direct the account debtor or obligor thereon to thereafter make all payments on such Collateral directly to Secured Party, regardless of whether Pledgor was previously making collections thereon. Each account debtor and obligor making payment to Secured Party hereunder shall be fully protected in relying on the written statement of Secured Party that it then holds a security interest which entitles it to receive such payment, and the receipt of Secured Party for such payment shall be full acquittance therefor to the party making such payment. Payments received by Secured Party shall be held or disposed of by it in accordance with the terms of this Agreement. Secured Party shall, however, never be obligated to collect, or use any effort to collect, any such payments, its sole liability to the Pledgor being to account for payments, if any, actually received. Notwithstanding any other provision herein to the contrary, Secured Party does not have any duty to exercise or continue to exercise any of the foregoing rights and shall not be responsible for any failure to do so or for any delay in doing so. 10. EVENTS OF DEFAULT. Each of the following constitutes an "Event of Default" under this Agreement: (a) Non-Performance of Covenants. The failure of Pledgor or any Obligated Party to timely and properly observe, keep or perform (i) any covenant, agreement, warranty or condition contained in Sections 7(a), 7(e) or 8 or (ii) any other covenant, agreement, warranty or condition required herein and, in the case of (ii), such failure shall continue for fifteen (15) days; or (b) Default Under other Credit Agreement. The occurrence of an Event of Default under Article 8 of the Credit Agreement; or (c) False Representation. Any representation contained herein or in any of the other Loan Documents made by Borrower or any Obligated Party is false or misleading in any material respect; or (d) Execution on Collateral. The Collateral or any portion thereof is taken on execution or other process of law in any action against Pledgor; or (e) Abandonment. Pledgor abandons the Collateral or any portion thereof; or (f) Action by Other Lienholder. The holder of any lien or security interest on any of the Collateral (without hereby implying the consent of Secured Party to the existence or creation of any such lien or security interest on the Collateral), declares a default thereunder or institutes foreclosure or other proceedings for the enforcement of its remedies thereunder; or (g) Dilution of Ownership. The issuer of any securities (other than securities of a class which are publicly traded) constituting Collateral hereafter issues any shares of any class of capital stock (unless immediately upon issuance, additional securities are pledged and delivered to Secured Party pursuant to the terms hereof to the extent necessary to give Secured Party a security interest after such issuance in at least the same percentage of such issuer's outstanding securities as Secured Party had before such issuance) or any options, warrants or other rights to purchase any such capital stock. PLEDGE AGREEMENT - PAGE 6 - ---------------- GAINSCO, INC. 7 11. REMEDIES AND RELATED RIGHTS. If an Event of Default shall have occurred, and without limiting any other rights and remedies provided herein, under any of the other Loan Documents or otherwise available to Secured Party, Secured Party may exercise one or more of the rights and remedies provided in this Section. (a) Remedies. Secured Party may from time to time at its discretion, subject to compliance with any applicable Insurance Holding Company Laws, without limitation and without notice except as expressly provided in any of the Loan Documents: (i) exercise in respect of the Collateral all the rights and remedies of a secured party under the Code (whether or not the Code applies to the affected Collateral); (ii) reduce its claim to judgment or foreclose or otherwise enforce, in whole or in part, the security interest granted hereunder by any available judicial procedure; (iii) sell or otherwise dispose of, at its office, on the premises of Pledgor or elsewhere, the Collateral, as a unit or in parcels, by public or private proceedings, and by way of one or more contracts (it being agreed that the sale or other disposition of any part of the Collateral shall not exhaust Secured Party's power of sale, but sales or other dispositions may be made from time to time until all of the Collateral has been sold or disposed of or until the Indebtedness has been paid and performed in full), and at any such sale or other disposition it shall not be necessary to exhibit any of the Collateral; (iv) buy the Collateral, or any portion thereof, at any public sale; (v) buy the Collateral, or any portion thereof, at any private sale if the Collateral is of a type customarily sold in a recognized market or is of a type which is the subject of widely distributed standard price quotations; (vi) apply for the appointment of a receiver for the Collateral, and Pledgor hereby consents to any such appointment; and (vii) at its option, retain the Collateral in satisfaction of the Indebtedness whenever the circumstances are such that Secured Party is entitled to do so under the Code or otherwise. Pledgor agrees that in the event Pledgor is entitled to receive any notice under the Uniform Commercial Code, as it exists in the state governing any such notice, of the sale or other disposition of any Collateral, reasonable notice shall be deemed given five (5) days after such notice is deposited in a depository receptacle under the care and custody of the United States Postal Service, postage prepaid, at Pledgor's address set forth on the signature page hereof, ten (10) days prior to the date of any public sale, or after which a private sale, of any of such Collateral is to be held. Secured Party shall not be obligated to make any sale of Collateral regardless of notice of sale having been given. Secured Party may adjourn any public or private sale from time to time by announcement at the time and place fixed therefor, and such sale may, without further notice, be made at the time and place to which it was so adjourned. Pledgor further acknowledges and agrees that the redemption by Secured Party of any certificate of deposit pledged as Collateral shall be deemed to be a commercially reasonable disposition under Section 9.504(c) of the Code. (b) Private Sale of Securities. Pledgor recognizes that Secured Party may be unable to effect a public sale of all or any part of the securities pledged as Collateral because of restrictions in applicable federal and state securities laws and that Secured Party may, therefore, determine to make one or more private sales of any such securities to a restricted group of purchasers who will be obligated to agree, among other things, to acquire such securities for their own account, for investment and not with a view to the distribution or resale thereof. Pledgor acknowledges that each any such private sale may be at prices and other terms less favorable PLEDGE AGREEMENT - PAGE 7 - ---------------- GAINSCO, INC. 8 then what might have been obtained at a public sale and, notwithstanding the foregoing, agrees that each such private sale shall be deemed to have been made in a commercially reasonable manner and that Secured Party shall have no obligation to delay the sale of any such securities for the period of time necessary to permit the issuer to register such securities for public sale under any federal or state securities laws. Pledgor further acknowledges and agrees that any offer to sell such securities which has been made privately in the manner described above to not less than five (5) bona fide offerees shall be deemed to involve a "public sale" for the purposes of Section 9.504(c) of the Code, notwithstanding that such sale may not constitute a "public offering" under any federal or state securities laws and that Secured Party may, in such event, bid for the purchase of such securities. (c) Application of Proceeds. If any Event of Default shall have occurred, Secured Party may at its discretion apply or use any cash held by Secured Party as Collateral, and any cash proceeds received by Secured Party in respect of any sale or other disposition of, collection from, or other realization upon, all or any part of the Collateral as follows in such order and manner as Secured Party may elect: (i) to the repayment or reimbursement of the reasonable costs and expenses (including, without limitation, reasonable attorneys' fees and expenses) incurred by Secured Party in connection with (A) the administration of the Loan Documents, (B) the custody, preservation, use or operation of, or the sale of, collection from, or other realization upon, the Collateral, and (C) the exercise or enforcement of any of the rights and remedies of Secured Party hereunder; (ii) to the payment or other satisfaction of any liens and other encumbrances upon the Collateral; (iii) to the satisfaction of the Indebtedness; (iv) by holding such cash and proceeds as Collateral; (v) to the payment of any other amounts required by applicable law (including without limitation, Section 9.504(a)(3) of the Code or any other applicable statutory provision); and (vi) by delivery to Pledgor or any other party lawfully entitled to receive such cash or proceeds whether by direction of a court of competent jurisdiction or otherwise. (d) Deficiency. In the event that the proceeds of any sale of, collection from, or other realization upon, all or any part of the Collateral by Secured Party are insufficient to pay all amounts to which Secured Party is legally entitled, Borrower and any party who guaranteed or is otherwise obligated to pay all or any portion of the Indebtedness shall be liable for the deficiency, together with interest thereon as provided in the Loan Documents. (e) Non-Judicial Remedies. In granting to Secured Party the power to enforce its rights hereunder without prior judicial process or judicial hearing, Pledgor expressly waives, renounces and knowingly relinquishes any legal right which might otherwise require Secured Party to enforce its rights by judicial process. Pledgor recognizes and concedes that non-judicial remedies are consistent with the usage of trade, are responsive to commercial necessity and are the result of a bargain at arm's length. Nothing herein is intended to prevent Secured Party or Pledgor from resorting to judicial process at either party's option. (f) Other Recourse. Pledgor waives any right to require Secured Party to proceed against any third party, exhaust any Collateral or other security for the Indebtedness, or to have any third party joined with Pledgor in any suit arising out of the Indebtedness or any of the Loan Documents, or pursue any other remedy available to Secured Party. Pledgor further waives any and all notice of acceptance of this Agreement and of the creation, modification, rearrangement, renewal or extension of the Indebtedness. Pledgor further waives PLEDGE AGREEMENT - PAGE 8 - ---------------- GAINSCO, INC. 9 any defense arising by reason of any disability or other defense of any third party or by reason of the cessation from any cause whatsoever of the liability of any third party. Until all of the Indebtedness shall have been paid in full, Pledgor shall have no right of subrogation and Pledgor waives the right to enforce any remedy which Secured Party has or may hereafter have against any third party, and waives any benefit of and any right to participate in any other security whatsoever now or hereafter held by Secured Party. Pledgor authorizes Secured Party, and without notice or demand and without any reservation of rights against Pledgor and without affecting Pledgor's liability hereunder or on the Indebtedness, to (i) take or hold any other property of any type from any third party as security for the Indebtedness, and exchange, enforce, waive and release any or all of such other property, (ii) apply such other property and direct the order or manner of sale thereof as Secured Party may in its discretion determine, (iii) renew, extend, accelerate, modify, compromise, settle or release any of the Indebtedness or other security for the Indebtedness, (iv) waive, enforce or modify any of the provisions of any of the Loan Documents executed by any third party, and (v) release or substitute any third party. (g) Voting Rights. Upon the occurrence of an Event of Default, Pledgor will not exercise any voting rights with respect to securities pledged as Collateral. Pledgor hereby irrevocably appoints Secured Party as Pledgor's attorney-in-fact (such power of attorney being coupled with an interest) and proxy to exercise, subject to compliance with any applicable Insurance Holding Company Laws, any voting rights with respect to Pledgor's securities pledged as Collateral upon the occurrence of an Event of Default. (h) Dividend Rights and Interest Payments. Upon the occurrence of an Event of Default: (i) all rights of Pledgor to receive and retain the dividends and interest payments which it would otherwise be authorized to receive and retain pursuant to Section 3 shall automatically cease, and all such rights shall thereupon become vested with Secured Party which shall thereafter have the sole right to receive, hold and apply as Collateral such dividends and interest payments; and (ii) all dividend and interest payments which are received by Pledgor contrary to the provisions of clause (i) of this Subsection shall be received in trust for the benefit of Secured Party, shall be segregated from other funds of Pledgor, and shall be forthwith paid over to Secured Party in the exact form received (properly endorsed or assigned if requested by Secured Party), to be held by Secured Party as Collateral. (i) Insurance Holding Company Laws. Because of laws and regulations governing change of control of insurance companies that may be applicable (collectively, the "Insurance Holding Company Laws"), certain purchasers of the Collateral at foreclosure may be required to obtain regulatory approval prior to a final and binding acquisition of the Collateral. The Pledgor acknowledges that such laws and regulations may adversely affect the purchase price to be paid by a purchaser of the Collateral, or any part thereof, at a private or public foreclosure sale, and that the Bank may (and is hereby authorized by the Pledgor to) modify the notices, advertisements, terms and procedures of any foreclosure sale of the Collateral in order to comply with Insurance Holding Company Laws. Without limiting the foregoing, the Pledgor acknowledges that the Bank may accept bids at foreclosure sale on a provisional basis, pending receipt by the successful bidder of necessary regulatory approvals under the Insurance Holding Company Laws. In addition, the Pledgor acknowledges that the Bank may (but shall not be required to) limit bidding at foreclosure sales to those parties which have demonstrated an ability to comply with requirements of the Insurance Holding Company Laws. Moreover, the Pledgor acknowledges that the Bank may require the successful bidder at a foreclosure sale to execute a purchase agreement, deposit a portion of the purchase price, and take other actions reflecting the requirements of the Insurance Holding Company Laws and the resulting delay in consummating a foreclosure sale. 12. INDEMNITY. Pledgor hereby indemnifies and agrees to hold harmless Secured Party, and its officers, directors, employees, agents and representatives (each an "Indemnified Person") from and against any and all liabilities, PLEDGE AGREEMENT - PAGE 9 - ---------------- GAINSCO, INC. 10 obligations, claims, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature (collectively, the "Claims") which may be imposed on, incurred by, or asserted against, any Indemnified Person (whether or not caused by any Indemnified Person's sole, concurrent or contributory negligence) arising in connection with the Loan Documents, the Indebtedness or the Collateral (including without limitation, the enforcement of the Loan Documents and the defense of any Indemnified Person's actions and/or inactions in connection with the Loan Documents), except to the limited extent the Claims against an Indemnified Person are proximately caused by such Indemnified Person's gross negligence or willful misconduct. If Pledgor or any third party ever alleges such gross negligence or willful misconduct by any Indemnified Person, the indemnification provided for in this Section shall nonetheless be paid upon demand, subject to later adjustment or reimbursement, until such time as a court of competent jurisdiction enters a final judgment as to the extent and effect of the alleged gross negligence or willful misconduct. The indemnification provided for in this Section shall survive the termination of this Agreement and shall extend and continue to benefit each individual or entity who is or has at any time been an Indemnified Person hereunder. 13. MISCELLANEOUS. (a) Entire Agreement. This Agreement contains the entire agreement of Secured Party and Pledgor with respect to the Collateral. If the parties hereto are parties to any prior agreement, either written or oral, relating to the Collateral, the terms of this Agreement shall amend and supersede the terms of such prior agreements as to transactions on or after the effective date of this Agreement, but all security agreements, financing statements, guaranties, other contracts and notices for the benefit of Secured Party shall continue in full force and effect to secure the Indebtedness unless Secured Party specifically releases its rights thereunder by separate release. (b) Amendment. No modification, consent or amendment of any provision of this Agreement or any of the other Loan Documents shall be valid or effective unless the same is in writing and signed by the party against whom it is sought to be enforced. (c) Actions by Secured Party. The lien, security interest and other security rights of Secured Party hereunder shall not be impaired by (i) any renewal, extension, increase or modification with respect to the Indebtedness, (ii) any surrender, compromise, release, renewal, extension, exchange or substitution which Secured Party may grant with respect to the Collateral, or (iii) any release or indulgence granted to any endorser, guarantor or surety of the Indebtedness. The taking of additional security by Secured Party shall not release or impair the lien, security interest or other security rights of Secured Party hereunder or affect the obligations of Pledgor hereunder. (d) Waiver by Secured Party. Secured Party may waive any Event of Default without waiving any other prior or subsequent Event of Default. Secured Party may remedy any default without waiving the Event of Default remedied. Neither the failure by Secured Party to exercise, nor the delay by Secured Party in exercising, any right or remedy upon any Event of Default shall be construed as a waiver of such Event of Default or as a waiver of the right to exercise any such right or remedy at a later date. No single or partial exercise by Secured Party of any right or remedy hereunder shall exhaust the same or shall preclude any other or further exercise thereof, and every such right or remedy hereunder may be exercised at any time. No waiver of any provision hereof or consent to any departure by Pledgor therefrom shall be effective unless the same shall be in writing and signed by Secured Party and then such waiver or consent shall be effective only in the specific instances, for the purpose for which given and to the extent therein specified. No notice to or demand on Pledgor in any case shall of itself entitle Pledgor to any other or further notice or demand in similar or other circumstances. (e) Costs and Expenses. Pledgor will upon demand pay to Secured Party the amount of any and all costs and expenses (including without limitation, attorneys' fees and expenses), which Secured Party may incur in connection with (i) the transactions which give rise to the Loan Documents, (ii) the preparation of this Agreement and the perfection and preservation of the security interests granted under the Loan Documents, (iii) the administration of the Loan Documents, (iv) the custody, preservation, use or operation of, or the sale of, collection from, or other realization upon, the Collateral, (v) the exercise or enforcement of any PLEDGE AGREEMENT - PAGE 10 - ---------------- GAINSCO, INC. 11 of the rights of Secured Party under the Loan Documents, or (vi) the failure by Pledgor to perform or observe any of the provisions hereof. (f) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS AND APPLICABLE FEDERAL LAWS, EXCEPT TO THE EXTENT PERFECTION AND THE EFFECT OF PERFECTION OR NON-PERFECTION OF THE SECURITY INTEREST GRANTED HEREUNDER, IN RESPECT OF ANY PARTICULAR COLLATERAL, ARE GOVERNED BY THE LAWS OF A JURISDICTION OTHER THAN THE STATE OF TEXAS. (g) Venue. This Agreement has been entered into in the county in Texas where Bank's address for notice purposes is located, and it shall be performable for all purposes in such county. Courts within the State of Texas shall have jurisdiction over any and all disputes arising under or pertaining to this Agreement and venue for any such disputes shall be in the county or judicial district where this Agreement has been executed and delivered. (h) Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be illegal, invalid or unenforceable under present or future laws, such provision shall be fully severable, shall not impair or invalidate the remainder of this Agreement and the effect thereof shall be confined to the provision held to be illegal, invalid or unenforceable. (i) No Obligation. Nothing contained herein shall be construed as an obligation on the part of Secured Party to extend or continue to extend credit to Borrower. (j) Notices. All notices, requests, demands or other communications required or permitted to be given pursuant to this Agreement shall be in writing and given by (i) personal delivery, (ii) expedited delivery service with proof of delivery, or (iii) United States mail, postage prepaid, registered or certified mail, return receipt requested, sent to the intended addressee at the address set forth on the signature page hereof or to such different address as the addressee shall have designated by written notice sent pursuant to the terms hereof and shall be deemed to have been received either, in the case of personal delivery, at the time of personal delivery, in the case of expedited delivery service, as of the date of first attempted delivery at the address and in the manner provided herein, or in the case of mail, five (5) days after deposit in a depository receptacle under the care and custody of the United States Postal Service. Either party shall have the right to change its address for notice hereunder to any other location within the continental United States by notice to the other party of such new address at least thirty (30) days prior to the effective date of such new address. (k) Binding Effect and Assignment. This Agreement (i) creates a continuing security interest in the Collateral, (ii) shall be binding on Pledgor and the heirs, executors, administrators, personal representatives, successors and assigns of Pledgor, and (iii) shall inure to the benefit of Secured Party and its successors and assigns. Without limiting the generality of the foregoing, Secured Party may pledge, assign or otherwise transfer the Indebtedness and its rights under this Agreement and any of the other Loan Documents to any other party, subject to any rights of Pledgor hereunder. Pledgor's rights and obligations hereunder may not be assigned or otherwise transferred without the prior written consent of Secured Party. (l) Termination. It is contemplated by the parties hereto that from time to time there may be no outstanding Indebtedness, but notwithstanding such occurrences, this Agreement shall remain valid and shall be in full force and effect as to subsequent outstanding Indebtedness. Upon (i) the satisfaction in full of the Indebtedness, (ii) the termination or expiration of any commitment of Secured Party to extend credit to Borrower, (iii) written request for the termination hereof delivered by Pledgor to Secured Party, and (iv) written release delivered by Secured Party to Pledgor, this Agreement and the security interests created hereby shall terminate. Upon termination of this Agreement and Pledgor's written request, Secured Party will, at Pledgor's sole cost and expense, return to Pledgor such of the Collateral as shall not have been sold or otherwise disposed of or applied pursuant to the terms hereof and execute and deliver to Pledgor such documents as Pledgor shall reasonably request to evidence such termination. PLEDGE AGREEMENT - PAGE 11 - ---------------- GAINSCO, INC. 12 (m) JURY TRIAL WAIVER. PLEDGOR AND BANK EACH HEREBY WAIVE ANY RIGHT TO A JURY TRIAL WITH RESPECT TO ANY MATTER ARISING OR RELATING TO THIS AGREEMENT OR THE OTHER LOAN DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY. (n) Cumulative Rights. All rights and remedies of Secured Party hereunder are cumulative of each other and of every other right or remedy which Secured Party may otherwise have at law or in equity or under any of the other Loan Documents, and the exercise of one or more of such rights or remedies shall not prejudice or impair the concurrent or subsequent exercise of any other rights or remedies. (o) Gender and Number. Within this Agreement, words of any gender shall be held and construed to include the other gender, and words in the singular number shall be held and construed to include the plural and words in the plural number shall be held and construed to include the singular, unless in each instance the context requires otherwise. (p) Descriptive Headings. The headings in this Agreement are for convenience only and shall in no way enlarge, limit or define the scope or meaning of the various and several provisions hereof. [SIGNATURE PAGE FOLLOWS] PLEDGE AGREEMENT - PAGE 12 - ---------------- GAINSCO, INC. 13 EXECUTED as of the date first written above. Pledgor's Address: PLEDGOR: 500 Commerce Street GAINSCO, INC. Fort Worth, Texas 76102 By: /s/ GLENN W. ANDERSON ------------------------------------- Glenn W. Anderson, President and Chief Executive Officer Secured Party's Address: Bank One, Texas, N.A. 1717 Main Street Dallas, Texas 75201 PLEDGE AGREEMENT - PAGE 13 - ---------------- GAINSCO, INC. 14 SCHEDULE A TO PLEDGE AGREEMENT BY GAINSCO, INC. The following property is a part of the Collateral as defined in Subsection 1(c): (a) All shares of capital stock of GAINSCO Service Corp., a Texas corporation, owned by Pledgor, including without limitation 1,000 shares of common stock evidenced by share certificate no. 2 issued in the name of Pledgor. (b) All shares of capital stock of Agents Processing Systems, Inc., a Texas corporation, owned by Pledgor, including without limitation 50,000 shares of common stock evidenced by share certificate nos. 1 and 2 issued in the name of Pledgor. (c) All shares of capital stock of General Agents Insurance Company of America, Inc., an Oklahoma corporation, owned by Pledgor, including without limitation 3,000,000 shares of common stock evidenced by share certificate nos. 1-5 issued in the name of Pledgor. (d) All shares of capital stock of General Agents Premium Finance Company, a Texas corporation, owned by Pledgor, including without limitation 1,000 shares of common stock evidenced by share certificate no. 1 issued in the name of Pledgor. (e) All shares of capital stock of Risk Retention Administrators, Inc., a Nevada corporation, owned by Pledgor, including without limitation 10,000 shares of common stock evidenced by share certificate no. 1 issued in the name of Pledgor. (f) All shares of capital stock of National Specialty Lines, Inc., a Florida corporation, owned by Pledgor, including without limitation 21.0526 shares of common stock evidenced by share certificate no. 8 issued in the name of Pledgor. (g) All shares of capital stock of De La Torre Insurance Adjusters, Inc., a Florida corporation, owned by Pledgor, including without limitation 228.57099 shares of common stock evidenced by share certificate no. 9 issued in the name of Pledgor. (h) All shares of capital stock of Lalande Financial Group, Inc., a Florida corporation, owned by Pledgor, including without limitation 200 shares of common stock evidenced by share certificate no. 5 issued in the name of Pledgor. EX-10.53 5 PLEDGE AGREEMENT BY GAINSCO, INC. 1 EXHIBIT 10.53 PLEDGE AGREEMENT THIS PLEDGE AGREEMENT ("Agreement") is made as of the 13th day of November, 1998, by GAINSCO, INC., a Texas corporation (hereinafter called "Pledgor", whether one or more), in favor of BANK ONE, TEXAS, NATIONAL ASSOCIATION ("Bank"). Pledgor hereby agrees with Bank as follows: 1. DEFINITIONS. As used in this Agreement, the following terms shall have the meanings indicated below: (a) The term "Borrower" shall mean GAINSCO, Inc., a Texas corporation and GAINSCO Service Corp., a Texas corporation, or either of them. (b) The term "Code" shall mean the Uniform Commercial Code as in effect in the State of Texas on the date of this Agreement or as it may hereafter be amended from time to time. (c) The term "Collateral" shall mean all property specifically described on Schedule A attached hereto and made a part hereof. The term Collateral, as used herein, shall also include (i) all certificates, instruments and/or other documents evidencing the foregoing, (ii) all renewals, replacements and substitutions of all of the foregoing, (iii) all Additional Property (as hereinafter defined), and (iv) all PRODUCTS and PROCEEDS of all of the foregoing. The designation of proceeds does not authorize Pledgor to sell, transfer or otherwise convey any of the foregoing property. The delivery at any time by Pledgor to Secured Party of any property as a pledge to secure payment or performance of any indebtedness or obligation whatsoever shall also constitute a pledge of such property as Collateral hereunder. (d) The term "Indebtedness" shall mean all indebtedness, obligations and liabilities of Borrower to Secured Party of any kind or character, now existing or hereafter arising, whether direct, indirect, related, unrelated, fixed, contingent, liquidated, unliquidated, joint, several or joint and several, including without limitation all indebtedness, obligations and liabilities of Borrower to Secured Party now existing or hereafter arising by note, draft, acceptance, guaranty, endorsement, letter of credit, assignment, purchase, overdraft, discount, indemnity agreement or otherwise, (ii) all accrued but unpaid interest on any of the indebtedness described in (i) above, (iii) all obligations of Borrower to Secured Party under any documents evidencing, securing, governing and/or pertaining to all or any part of the indebtedness described in (i) and (ii) above, (iv) all costs and expenses incurred by Secured Party in connection with the collection and administration of all or any part of the indebtedness and obligations described in (i), (ii) and (iii) above or the protection or preservation of, or realization upon, the collateral securing all or any part of such indebtedness and obligations, including without limitation all reasonable attorneys' fees, and (v) all renewals, extensions, modifications and rearrangements of the indebtedness and obligations described in (i), (ii), (iii) and (iv) above. (e) The term "Loan Documents" shall mean all instruments and documents evidencing, securing, governing, guaranteeing and/or pertaining to the Indebtedness, including without limitation the Revolving Credit Agreement dated as of November 13, 1998 (the "Credit Agreement") among GAINSCO, Inc., GAINSCO Service Corp. and Bank. (f) The term "Obligated Party" shall mean any party other than Borrower who secures, guarantees and/or is otherwise obligated to pay all or any portion of the Indebtedness. (g) The term "Secured Party" shall mean Bank, its successors and assigns, including without limitation, any party to whom Bank, or its successors or assigns, may assign its rights and interests under this Agreement. All words and phrases used herein which are expressly defined in Section 1.201, Chapter 8 or Chapter 9 of the Code shall have the meaning provided for therein. Other words and phrases defined elsewhere in the Code shall have the PLEDGE AGREEMENT - PAGE 1 - ---------------- GAINSCO, INC. 2 meaning specified therein except to the extent such meaning is inconsistent with a definition in Section 1.201, Chapter 8 or Chapter 9 of the Code. 2. SECURITY INTEREST. As security for the Indebtedness, Pledgor, for value received, hereby grants to Secured Party a continuing security interest in the Collateral. 3. ADDITIONAL PROPERTY. Collateral shall also includes the following property (collectively, the "Additional Property") which Pledgor becomes entitled to receive or shall receive in connection with any other Collateral: (a) any stock certificate, including without limitation, any certificate representing a stock dividend or any certificate in connection with any recapitalization, reclassification, merger, consolidation, conversion, sale of assets, combination of shares, stock split or spin-off; (b) any option, warrant, subscription or right, whether as an addition to or in substitution of any other Collateral; (c) any dividends or distributions of any kind whatsoever, whether distributable in cash, stock or other property; (d) any interest, premium or principal payments; and (e) any conversion or redemption proceeds; provided, however, that until the occurrence of an Event of Default (as hereinafter defined), Pledgor shall be entitled to all cash dividends and all interest paid on the Collateral (except interest paid on any certificate of deposit pledged hereunder) free of the security interest created under this Agreement. All Additional Property received by Pledgor (except for dividends permitted to be retained by Pledgor pursuant to the immediately preceding sentence) shall be received in trust for the benefit of Secured Party. All Additional Property and all certificates or other written instruments or documents evidencing and/or representing the Additional Property that is received by Pledgor, together with such instruments of transfer as Secured Party may request, shall immediately be delivered to or deposited with Secured Party and held by Secured Party as Collateral under the terms of this Agreement. If the Additional Property received by Pledgor shall be shares of stock or other securities, such shares of stock or other securities shall be duly endorsed in blank or accompanied by proper instruments of transfer and assignment duly executed in blank with, if requested by Secured Party, signatures guaranteed by a bank or member firm of the New York Stock Exchange, all in form and substance satisfactory to Secured Party. Secured Party shall be deemed to have possession of any Collateral in transit to Secured Party or its agent. 4. VOTING RIGHTS. As long as no Event of Default shall have occurred hereunder, any voting rights incident to any stock or other securities pledged as Collateral may be exercised by Pledgor; provided, however, that Pledgor will not exercise, or cause to be exercised, any such voting rights, without the prior written consent of Secured Party, if the direct or indirect effect of such vote will result in an Event of Default hereunder. 5. MAINTENANCE OF COLLATERAL. Other than the exercise of reasonable care to assure the safe custody of any Collateral in Secured Party's possession from time to time, Secured Party does not have any obligation, duty or responsibility with respect to the Collateral. Without limiting the generality of the foregoing, Secured Party shall not have any obligation, duty or responsibility to do any of the following: (a) ascertain any maturities, calls, conversions, exchanges, offers, tenders or similar matters relating to the Collateral or informing Pledgor with respect to any such matters; (b) fix, preserve or exercise any right, privilege or option (whether conversion, redemption or otherwise) with respect to the Collateral unless (i) Pledgor makes written demand to Secured Party to do so, (ii) such written demand is received by Secured Party in sufficient time to permit Secured Party to take the action demanded in the ordinary course of its business, and (iii) Pledgor provides additional collateral, acceptable to Secured Party in its sole discretion; (c) collect any amounts payable in respect of the Collateral (Secured Party being liable to account to Pledgor only for what Secured Party may actually receive or collect thereon); (d) sell all or any portion of the Collateral to avoid market loss; (e) sell all or any portion of the Collateral unless and until (i) Pledgor makes written demand upon Secured Party to sell the Collateral, and (ii) Pledgor provides additional collateral, acceptable to Secured Party in its sole discretion; or (f) hold the Collateral for or on behalf of any party other than Pledgor. 6. REPRESENTATIONS AND WARRANTIES. Pledgor hereby represents and warrants the following to Secured Party: (a) Due Authorization. The execution, delivery and performance of this Agreement and all of the other Loan Documents by Pledgor have been duly authorized by all necessary corporate action of Pledgor, to the extent Pledgor is a corporation, or by all necessary partnership action, to the extent Pledgor is a partnership. PLEDGE AGREEMENT - PAGE 2 - ---------------- GAINSCO, INC. 3 (b) Enforceability. This Agreement and the other Loan Documents constitute legal, valid and binding obligations of Pledgor, enforceable in accordance with their respective terms, except as limited by bankruptcy, insolvency or similar laws of general application relating to the enforcement of creditors' rights and except to the extent specific remedies may generally be limited by equitable principles. (c) Ownership and Liens. Pledgor has good and indefeasible title to the Collateral free and clear of all liens, security interests, encumbrances or adverse claims, except for the security interest created by this Agreement. No dispute, right of setoff, counterclaim or defense exists with respect to all or any part of the Collateral. Pledgor has not executed any other security agreement currently affecting the Collateral and no financing statement or other instrument similar in effect covering all or any part of the Collateral is on file in any recording office except as may have been executed or filed in favor of Secured Party. (d) No Conflicts or Consents. Neither the ownership, the intended use of the Collateral by Pledgor, the grant of the security interest by Pledgor to Secured Party herein nor (except for restrictions imposed by any applicable Insurance Holding Company Laws (as hereinafter defined) the exercise by Secured Party of its rights or remedies hereunder, will (i) conflict with any provision of (A) any domestic or foreign law, statute, rule or regulation, (B) the articles or certificate of incorporation, charter, bylaws or partnership agreement, as the case may be, of Pledgor, or (C) any agreement, judgment, license, order or permit applicable to or binding upon Pledgor or otherwise affecting the Collateral, or (ii) result in or require the creation of any lien, charge or encumbrance upon any assets or properties of Pledgor or of any person except as may be expressly contemplated in the Loan Documents. Except as expressly contemplated in the Loan Documents, no consent, approval, authorization or order of, and no notice to or filing with, any court, governmental authority or third party is required in connection with the grant by Pledgor of the security interest herein or the exercise by Secured Party of its rights and remedies hereunder. (e) Security Interest. Pledgor has and will have at all times full right, power and authority to grant a security interest in the Collateral to Secured Party in the manner provided herein, free and clear of any lien, security interest or other charge or encumbrance. This Agreement creates a legal, valid and binding security interest in favor of Secured Party in the Collateral. (f) Location. Pledgor's residence or chief executive office, as the case may be, and the office where the records concerning the Collateral are kept is located at its address set forth on the signature page hereof. (g) Solvency of Pledgor. As of the date hereof, and after giving effect to this Agreement and the completion of all other transactions contemplated by Pledgor at the time of the execution of this Agreement, (i) Pledgor is and will be solvent, (ii) the fair saleable value of Pledgor's assets exceeds and will continue to exceed Pledgor's liabilities (both fixed and contingent), (iii) Pledgor is and will continue to be able to pay its debts as they mature, and (iv) if Pledgor is not an individual, Pledgor has and will have sufficient capital to carry on Pledgor's businesses and all businesses in which Pledgor is about to engage. (h) Nature of Ownership. Pledgor is the registered owner of the securities pledged as Collateral and a certificate has been issued in Pledgor's name to evidence Pledgor's ownership in such securities. (i) Securities/100% Ownership. Any certificates evidencing securities pledged as Collateral are valid and genuine and have not been altered. All securities pledged as Collateral have been duly authorized and validly issued, are fully paid and non-assessable, and were not issued in violation of the preemptive rights of any party or of any agreement by which Pledgor or the issuer thereof is bound. No restrictions or conditions exist with respect to the transfer or voting of any securities pledged as Collateral, except as has been disclosed to Secured Party in writing. To the best of Pledgor's knowledge, no issuer of such securities (other than securities of a class which are publicly traded) has any outstanding stock rights, rights to subscribe, options, warrants or convertible securities outstanding or any other rights outstanding entitling any party to have issued to such party capital stock of such issuer, except as has been disclosed to PLEDGE AGREEMENT - PAGE 3 - ---------------- GAINSCO, INC. 4 Secured Party in writing. Pledgor owns 100% of the issued and outstanding shares of capital stock of each issuer listed on Schedule A attached hereto. (j) Chattel Paper, Documents and Instruments. The security interest in chattel paper, documents and instruments of Pledgor granted hereunder is valid and genuine, and all such chattel paper, documents and instruments have only one original counterpart. No party other than Pledgor or Secured Party is in actual or constructive possession of any such chattel paper, documents or instruments. (k) Surplus Debenture. With regard to the Surplus Debenture described on Schedule A, as of the date hereof, the unpaid principal balance of such Surplus Debenture is $2,600,000 and the payment of interest thereon is current. No dispute, right of setoff, counterclaim or defense exists with respect to such Surplus Debenture. 7. AFFIRMATIVE COVENANTS. Pledgor will comply with the covenants contained in this Section at all times during the period of time this Agreement is effective unless Secured Party shall otherwise consent in writing. (a) Ownership and Liens. Pledgor will maintain good and indefeasible title to all Collateral free and clear of all liens, security interests, encumbrances or adverse claims, except for the security interest created by this Agreement and the security interests and other encumbrances expressly permitted by the other Loan Documents. Pledgor will not permit any dispute, right of setoff, counterclaim or defense to exist with respect to all or any part of the Collateral. Pledgor will cause any financing statement or other security instrument with respect to the Collateral to be terminated, except as may exist or as may have been filed in favor of Secured Party. Pledgor will defend at its expense Secured Party's right, title and security interest in and to the Collateral against the claims of any third party. (b) Inspection of Books and Records. Pledgor will keep adequate records concerning the Collateral and will permit Secured Party and all representatives and agents appointed by Secured Party to inspect Pledgor's books and records of or relating to the Collateral at any time during normal business hours, to make and take away photocopies, photographs and printouts thereof and to write down and record any such information. (c) Adverse Claim. Pledgor covenants and agrees to promptly notify Secured Party of any claim, action or proceeding affecting title to the Collateral, or any part thereof, or the security interest created hereunder and, at Pledgor's expense, defend Secured Party's security interest in the Collateral against the claims of any third party. Pledgor also covenants and agrees to promptly deliver to Secured Party a copy of all written notices received by Pledgor with respect to the Collateral, including without limitation, notices received from the issuer of any securities pledged hereunder as Collateral. (d) Delivery of Instruments and/or Certificates. Contemporaneously herewith, Pledgor covenants and agrees to deliver to Secured Party any certificates, documents or instruments representing or evidencing the Collateral, together with Pledgor's endorsement thereon and/or accompanied by proper instruments of transfer and assignment duly executed in blank with, if requested by Secured Party, signatures guaranteed by a bank or member firm of the New York Stock Exchange, all in form and substance satisfactory to Secured Party. If required by Secured Party, Pledgor also covenants and agrees to cooperate with Secured Party in registering the pledge of the securities pledged as Collateral with the issuer of such securities. (e) Further Assurances. Pledgor will from time to time at its expense promptly execute and deliver all further instruments and documents and take all further action necessary or appropriate or that Secured Party may request in order (i) to perfect and protect the security interest created or purported to be created hereby and the first priority of such security interest, (ii) to enable Secured Party to exercise and enforce its rights and remedies hereunder in respect of the Collateral, and (iii) to otherwise effect the purposes of this Agreement, including without limitation, executing and filing such financing or continuation statements, or any amendments thereto. PLEDGE AGREEMENT - PAGE 4 - ---------------- GAINSCO, INC. 5 (f) Chattel Paper, Documents and Instruments. Pledgor will take such action as may be requested by Secured Party in order to cause any chattel paper, documents or instruments to be valid and enforceable and will cause all chattel paper to have only one original counterpart. Upon request by Secured Party, Pledgor will deliver to Secured Party all originals of chattel paper, documents or instruments and will mark all chattel paper with a legend indicating that such chattel paper is subject to the security interest granted hereunder. 8. NEGATIVE COVENANTS. Pledgor will comply with the covenants contained in this Section at all times during the period of time this Agreement is effective, unless Secured Party shall otherwise consent in writing. (a) Transfer or Encumbrance. Pledgor will not (i) sell, assign (by operation of law or otherwise) or transfer Pledgor's rights in any of the Collateral, (ii) grant a lien or security interest in or execute, file or record any financing statement or other security instrument with respect to the Collateral to any party other than Secured Party, or (iii) deliver actual or constructive possession of any certificate, instrument or document evidencing and/or representing any of the Collateral to any party other than Secured Party. (b) Impairment of Security Interest. Pledgor will not take or fail to take any action which would in any manner impair the value or enforceability of Secured Party's security interest in any Collateral. (c) Dilution of Ownership. As to any securities pledged as Collateral (other than securities of a class which are publicly traded), Pledgor will not consent to or approve of the issuance of (i) any additional shares of any class of securities of such issuer (unless immediately upon issuance additional securities are pledged and delivered to Secured Party pursuant to the terms hereof to the extent necessary to give Secured Party a security interest after such issuance in at least the same percentage of such issuer's outstanding securities as Secured Party had before such issuance), (ii) any instrument convertible voluntarily by the holder thereof or automatically upon the occurrence or non-occurrence of any event or condition into, or exchangeable for, any such securities, or (iii) any warrants, options, contracts or other commitments entitling any third party to purchase or otherwise acquire any such securities. (d) Restrictions on Securities. Pledgor will not enter into any agreement creating, or otherwise permit to exist, any restriction or condition upon the transfer, voting or control of any securities pledged as Collateral, except as consented to in writing by Secured Party. 9. RIGHTS OF SECURED PARTY. Secured Party shall have the rights contained in this Section at all times during the period of time this Agreement is effective. (a) Power of Attorney. Pledgor hereby irrevocably appoints Secured Party as Pledgor's attorney-in-fact, such power of attorney being coupled with an interest, with full authority in the place and stead of Pledgor and in the name of Pledgor or otherwise, to take any action and to execute any instrument which Secured Party may from time to time in Secured Party's discretion deem necessary or appropriate to accomplish the purposes of this Agreement, including without limitation, the following action: (i) subject to any applicable Insurance Holding Company Laws, transfer any securities, instruments, documents or certificates pledged as Collateral in the name of Secured Party or its nominee; (ii) use any interest, premium or principal payments, conversion or redemption proceeds or other cash proceeds received in connection with any Collateral to reduce any of the Indebtedness; (iii) exchange any of the securities pledged as Collateral for any other property upon any merger, consolidation, reorganization, recapitalization or other readjustment of the issuer thereof, and, in connection therewith, to deposit and deliver any and all of such securities with any committee, depository, transfer agent, registrar or other designated agent upon such terms and conditions as Secured Party may deem necessary or appropriate; (iv) exercise or comply with any conversion, exchange, redemption, subscription or any other right, privilege or option pertaining to any securities pledged as Collateral; provided, however, except as provided herein, Secured Party shall not have a duty to exercise or comply with any such right, privilege or option (whether conversion, redemption or otherwise) and shall not be responsible for any delay or failure to do so; and (v) file any claims or take any action or institute any PLEDGE AGREEMENT - PAGE 5 - ---------------- GAINSCO, INC. 6 proceedings which Secured Party may deem necessary or appropriate for the collection and/or preservation of the Collateral or otherwise to enforce the rights of Secured Party with respect to the Collateral. (b) Performance by Secured Party. If Pledgor fails to perform any agreement or obligation provided herein, Secured Party may itself perform, or cause performance of, such agreement or obligation, and the expenses of Secured Party incurred in connection therewith shall be a part of the Indebtedness, secured by the Collateral and payable by Pledgor on demand. (c) Notification of Account Debtors and Other Rights. With respect to chattel paper or instruments which are Collateral, Secured Party, without notice to Pledgor, shall have the right at any time and from time to time after the occurrence and during the continuation of an Event of Default to notify and direct the account debtor or obligor thereon to thereafter make all payments on such Collateral directly to Secured Party, regardless of whether Pledgor was previously making collections thereon. Each account debtor and obligor making payment to Secured Party hereunder shall be fully protected in relying on the written statement of Secured Party that it then holds a security interest which entitles it to receive such payment, and the receipt of Secured Party for such payment shall be full acquittance therefor to the party making such payment. Payments received by Secured Party shall be held or disposed of by it in accordance with the terms of this Agreement. Secured Party shall, however, never be obligated to collect, or use any effort to collect, any such payments, its sole liability to the Pledgor being to account for payments, if any, actually received. Notwithstanding any other provision herein to the contrary, Secured Party does not have any duty to exercise or continue to exercise any of the foregoing rights and shall not be responsible for any failure to do so or for any delay in doing so. 10. EVENTS OF DEFAULT. Each of the following constitutes an "Event of Default" under this Agreement: (a) Non-Performance of Covenants. The failure of Pledgor or any Obligated Party to timely and properly observe, keep or perform (i) any covenant, agreement, warranty or condition contained in Sections 7(a), 7(e) or 8 or (ii) any other covenant, agreement, warranty or condition required herein and, in the case of (ii), such failure shall continue for fifteen (15) days; or (b) Default Under other Credit Agreement. The occurrence of an Event of Default under Article 8 of the Credit Agreement; or (c) False Representation. Any representation contained herein or in any of the other Loan Documents made by Borrower or any Obligated Party is false or misleading in any material respect; or (d) Execution on Collateral. The Collateral or any portion thereof is taken on execution or other process of law in any action against Pledgor; or (e) Abandonment. Pledgor abandons the Collateral or any portion thereof; or (f) Action by Other Lienholder. The holder of any lien or security interest on any of the Collateral (without hereby implying the consent of Secured Party to the existence or creation of any such lien or security interest on the Collateral), declares a default thereunder or institutes foreclosure or other proceedings for the enforcement of its remedies thereunder; or (g) Dilution of Ownership. The issuer of any securities (other than securities of a class which are publicly traded) constituting Collateral hereafter issues any shares of any class of capital stock (unless immediately upon issuance, additional securities are pledged and delivered to Secured Party pursuant to the terms hereof to the extent necessary to give Secured Party a security interest after such issuance in at least the same percentage of such issuer's outstanding securities as Secured Party had before such issuance) or any options, warrants or other rights to purchase any such capital stock. PLEDGE AGREEMENT - PAGE 6 - ---------------- GAINSCO, INC. 7 11. REMEDIES AND RELATED RIGHTS. If an Event of Default shall have occurred, and without limiting any other rights and remedies provided herein, under any of the other Loan Documents or otherwise available to Secured Party, Secured Party may exercise one or more of the rights and remedies provided in this Section. (a) Remedies. Secured Party may from time to time at its discretion, subject to compliance with any applicable Insurance Holding Company Laws, without limitation and without notice except as expressly provided in any of the Loan Documents: (i) exercise in respect of the Collateral all the rights and remedies of a secured party under the Code (whether or not the Code applies to the affected Collateral); (ii) reduce its claim to judgment or foreclose or otherwise enforce, in whole or in part, the security interest granted hereunder by any available judicial procedure; (iii) sell or otherwise dispose of, at its office, on the premises of Pledgor or elsewhere, the Collateral, as a unit or in parcels, by public or private proceedings, and by way of one or more contracts (it being agreed that the sale or other disposition of any part of the Collateral shall not exhaust Secured Party's power of sale, but sales or other dispositions may be made from time to time until all of the Collateral has been sold or disposed of or until the Indebtedness has been paid and performed in full), and at any such sale or other disposition it shall not be necessary to exhibit any of the Collateral; (iv) buy the Collateral, or any portion thereof, at any public sale; (v) buy the Collateral, or any portion thereof, at any private sale if the Collateral is of a type customarily sold in a recognized market or is of a type which is the subject of widely distributed standard price quotations; (vi) apply for the appointment of a receiver for the Collateral, and Pledgor hereby consents to any such appointment; and (vii) at its option, retain the Collateral in satisfaction of the Indebtedness whenever the circumstances are such that Secured Party is entitled to do so under the Code or otherwise. Pledgor agrees that in the event Pledgor is entitled to receive any notice under the Uniform Commercial Code, as it exists in the state governing any such notice, of the sale or other disposition of any Collateral, reasonable notice shall be deemed given five (5) days after such notice is deposited in a depository receptacle under the care and custody of the United States Postal Service, postage prepaid, at Pledgor's address set forth on the signature page hereof, ten (10) days prior to the date of any public sale, or after which a private sale, of any of such Collateral is to be held. Secured Party shall not be obligated to make any sale of Collateral regardless of notice of sale having been given. Secured Party may adjourn any public or private sale from time to time by announcement at the time and place fixed therefor, and such sale may, without further notice, be made at the time and place to which it was so adjourned. Pledgor further acknowledges and agrees that the redemption by Secured Party of any certificate of deposit pledged as Collateral shall be deemed to be a commercially reasonable disposition under Section 9.504(c) of the Code. (b) Private Sale of Securities. Pledgor recognizes that Secured Party may be unable to effect a public sale of all or any part of the securities pledged as Collateral because of restrictions in applicable federal and state securities laws and that Secured Party may, therefore, determine to make one or more private sales of any such securities to a restricted group of purchasers who will be obligated to agree, among other things, to acquire such securities for their own account, for investment and not with a view to the distribution or resale thereof. Pledgor acknowledges that each any such private sale may be at prices and other terms less favorable PLEDGE AGREEMENT - PAGE 7 - ---------------- GAINSCO, INC. 8 then what might have been obtained at a public sale and, notwithstanding the foregoing, agrees that each such private sale shall be deemed to have been made in a commercially reasonable manner and that Secured Party shall have no obligation to delay the sale of any such securities for the period of time necessary to permit the issuer to register such securities for public sale under any federal or state securities laws. Pledgor further acknowledges and agrees that any offer to sell such securities which has been made privately in the manner described above to not less than five (5) bona fide offerees shall be deemed to involve a "public sale" for the purposes of Section 9.504(c) of the Code, notwithstanding that such sale may not constitute a "public offering" under any federal or state securities laws and that Secured Party may, in such event, bid for the purchase of such securities. (c) Application of Proceeds. If any Event of Default shall have occurred, Secured Party may at its discretion apply or use any cash held by Secured Party as Collateral, and any cash proceeds received by Secured Party in respect of any sale or other disposition of, collection from, or other realization upon, all or any part of the Collateral as follows in such order and manner as Secured Party may elect: (i) to the repayment or reimbursement of the reasonable costs and expenses (including, without limitation, reasonable attorneys' fees and expenses) incurred by Secured Party in connection with (A) the administration of the Loan Documents, (B) the custody, preservation, use or operation of, or the sale of, collection from, or other realization upon, the Collateral, and (C) the exercise or enforcement of any of the rights and remedies of Secured Party hereunder; (ii) to the payment or other satisfaction of any liens and other encumbrances upon the Collateral; (iii) to the satisfaction of the Indebtedness; (iv) by holding such cash and proceeds as Collateral; (v) to the payment of any other amounts required by applicable law (including without limitation, Section 9.504(a)(3) of the Code or any other applicable statutory provision); and (vi) by delivery to Pledgor or any other party lawfully entitled to receive such cash or proceeds whether by direction of a court of competent jurisdiction or otherwise. (d) Deficiency. In the event that the proceeds of any sale of, collection from, or other realization upon, all or any part of the Collateral by Secured Party are insufficient to pay all amounts to which Secured Party is legally entitled, Borrower and any party who guaranteed or is otherwise obligated to pay all or any portion of the Indebtedness shall be liable for the deficiency, together with interest thereon as provided in the Loan Documents. (e) Non-Judicial Remedies. In granting to Secured Party the power to enforce its rights hereunder without prior judicial process or judicial hearing, Pledgor expressly waives, renounces and knowingly relinquishes any legal right which might otherwise require Secured Party to enforce its rights by judicial process. Pledgor recognizes and concedes that non-judicial remedies are consistent with the usage of trade, are responsive to commercial necessity and are the result of a bargain at arm's length. Nothing herein is intended to prevent Secured Party or Pledgor from resorting to judicial process at either party's option. (f) Other Recourse. Pledgor waives any right to require Secured Party to proceed against any third party, exhaust any Collateral or other security for the Indebtedness, or to have any third party joined with Pledgor in any suit arising out of the Indebtedness or any of the Loan Documents, or pursue any other remedy available to Secured Party. Pledgor further waives any and all notice of acceptance of this Agreement and of the creation, modification, rearrangement, renewal or extension of the Indebtedness. Pledgor further waives PLEDGE AGREEMENT - PAGE 8 - ---------------- GAINSCO, INC. 9 any defense arising by reason of any disability or other defense of any third party or by reason of the cessation from any cause whatsoever of the liability of any third party. Until all of the Indebtedness shall have been paid in full, Pledgor shall have no right of subrogation and Pledgor waives the right to enforce any remedy which Secured Party has or may hereafter have against any third party, and waives any benefit of and any right to participate in any other security whatsoever now or hereafter held by Secured Party. Pledgor authorizes Secured Party, and without notice or demand and without any reservation of rights against Pledgor and without affecting Pledgor's liability hereunder or on the Indebtedness, to (i) take or hold any other property of any type from any third party as security for the Indebtedness, and exchange, enforce, waive and release any or all of such other property, (ii) apply such other property and direct the order or manner of sale thereof as Secured Party may in its discretion determine, (iii) renew, extend, accelerate, modify, compromise, settle or release any of the Indebtedness or other security for the Indebtedness, (iv) waive, enforce or modify any of the provisions of any of the Loan Documents executed by any third party, and (v) release or substitute any third party. (g) Voting Rights. Upon the occurrence of an Event of Default, Pledgor will not exercise any voting rights with respect to securities pledged as Collateral. Pledgor hereby irrevocably appoints Secured Party as Pledgor's attorney-in-fact (such power of attorney being coupled with an interest) and proxy to exercise, subject to compliance with any applicable Insurance Holding Company Laws, any voting rights with respect to Pledgor's securities pledged as Collateral upon the occurrence of an Event of Default. (h) Dividend Rights and Interest Payments. Upon the occurrence of an Event of Default: (i) all rights of Pledgor to receive and retain the dividends and interest payments which it would otherwise be authorized to receive and retain pursuant to Section 3 shall automatically cease, and all such rights shall thereupon become vested with Secured Party which shall thereafter have the sole right to receive, hold and apply as Collateral such dividends and interest payments; and (ii) all dividend and interest payments which are received by Pledgor contrary to the provisions of clause (i) of this Subsection shall be received in trust for the benefit of Secured Party, shall be segregated from other funds of Pledgor, and shall be forthwith paid over to Secured Party in the exact form received (properly endorsed or assigned if requested by Secured Party), to be held by Secured Party as Collateral. (i) Insurance Holding Company Laws. Because of laws and regulations governing change of control of insurance companies that may be applicable (collectively, the "Insurance Holding Company Laws"), certain purchasers of the Collateral at foreclosure may be required to obtain regulatory approval prior to a final and binding acquisition of the Collateral. The Pledgor acknowledges that such laws and regulations may adversely affect the purchase price to be paid by a purchaser of the Collateral, or any part thereof, at a private or public foreclosure sale, and that the Bank may (and is hereby authorized by the Pledgor to) modify the notices, advertisements, terms and procedures of any foreclosure sale of the Collateral in order to comply with Insurance Holding Company Laws. Without limiting the foregoing, the Pledgor acknowledges that the Bank may accept bids at foreclosure sale on a provisional basis, pending receipt by the successful bidder of necessary regulatory approvals under the Insurance Holding Company Laws. In addition, the Pledgor acknowledges that the Bank may (but shall not be required to) limit bidding at foreclosure sales to those parties which have demonstrated an ability to comply with requirements of the Insurance Holding Company Laws. Moreover, the Pledgor acknowledges that the Bank may require the successful bidder at a foreclosure sale to execute a purchase agreement, deposit a portion of the purchase price, and take other actions reflecting the requirements of the Insurance Holding Company Laws and the resulting delay in consummating a foreclosure sale. 12. INDEMNITY. Pledgor hereby indemnifies and agrees to hold harmless Secured Party, and its officers, directors, employees, agents and representatives (each an "Indemnified Person") from and against any and all liabilities, PLEDGE AGREEMENT - PAGE 9 - ---------------- GAINSCO, INC. 10 obligations, claims, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature (collectively, the "Claims") which may be imposed on, incurred by, or asserted against, any Indemnified Person (whether or not caused by any Indemnified Person's sole, concurrent or contributory negligence) arising in connection with the Loan Documents, the Indebtedness or the Collateral (including without limitation, the enforcement of the Loan Documents and the defense of any Indemnified Person's actions and/or inactions in connection with the Loan Documents), except to the limited extent the Claims against an Indemnified Person are proximately caused by such Indemnified Person's gross negligence or willful misconduct. If Pledgor or any third party ever alleges such gross negligence or willful misconduct by any Indemnified Person, the indemnification provided for in this Section shall nonetheless be paid upon demand, subject to later adjustment or reimbursement, until such time as a court of competent jurisdiction enters a final judgment as to the extent and effect of the alleged gross negligence or willful misconduct. The indemnification provided for in this Section shall survive the termination of this Agreement and shall extend and continue to benefit each individual or entity who is or has at any time been an Indemnified Person hereunder. 13. MISCELLANEOUS. (a) Entire Agreement. This Agreement contains the entire agreement of Secured Party and Pledgor with respect to the Collateral. If the parties hereto are parties to any prior agreement, either written or oral, relating to the Collateral, the terms of this Agreement shall amend and supersede the terms of such prior agreements as to transactions on or after the effective date of this Agreement, but all security agreements, financing statements, guaranties, other contracts and notices for the benefit of Secured Party shall continue in full force and effect to secure the Indebtedness unless Secured Party specifically releases its rights thereunder by separate release. (b) Amendment. No modification, consent or amendment of any provision of this Agreement or any of the other Loan Documents shall be valid or effective unless the same is in writing and signed by the party against whom it is sought to be enforced. (c) Actions by Secured Party. The lien, security interest and other security rights of Secured Party hereunder shall not be impaired by (i) any renewal, extension, increase or modification with respect to the Indebtedness, (ii) any surrender, compromise, release, renewal, extension, exchange or substitution which Secured Party may grant with respect to the Collateral, or (iii) any release or indulgence granted to any endorser, guarantor or surety of the Indebtedness. The taking of additional security by Secured Party shall not release or impair the lien, security interest or other security rights of Secured Party hereunder or affect the obligations of Pledgor hereunder. (d) Waiver by Secured Party. Secured Party may waive any Event of Default without waiving any other prior or subsequent Event of Default. Secured Party may remedy any default without waiving the Event of Default remedied. Neither the failure by Secured Party to exercise, nor the delay by Secured Party in exercising, any right or remedy upon any Event of Default shall be construed as a waiver of such Event of Default or as a waiver of the right to exercise any such right or remedy at a later date. No single or partial exercise by Secured Party of any right or remedy hereunder shall exhaust the same or shall preclude any other or further exercise thereof, and every such right or remedy hereunder may be exercised at any time. No waiver of any provision hereof or consent to any departure by Pledgor therefrom shall be effective unless the same shall be in writing and signed by Secured Party and then such waiver or consent shall be effective only in the specific instances, for the purpose for which given and to the extent therein specified. No notice to or demand on Pledgor in any case shall of itself entitle Pledgor to any other or further notice or demand in similar or other circumstances. (e) Costs and Expenses. Pledgor will upon demand pay to Secured Party the amount of any and all costs and expenses (including without limitation, attorneys' fees and expenses), which Secured Party may incur in connection with (i) the transactions which give rise to the Loan Documents, (ii) the preparation of this Agreement and the perfection and preservation of the security interests granted under the Loan Documents, (iii) the administration of the Loan Documents, (iv) the custody, preservation, use or operation of, or the sale of, collection from, or other realization upon, the Collateral, (v) the exercise or enforcement of any PLEDGE AGREEMENT - PAGE 10 - ---------------- GAINSCO, INC. 11 of the rights of Secured Party under the Loan Documents, or (vi) the failure by Pledgor to perform or observe any of the provisions hereof. (f) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS AND APPLICABLE FEDERAL LAWS, EXCEPT TO THE EXTENT PERFECTION AND THE EFFECT OF PERFECTION OR NON-PERFECTION OF THE SECURITY INTEREST GRANTED HEREUNDER, IN RESPECT OF ANY PARTICULAR COLLATERAL, ARE GOVERNED BY THE LAWS OF A JURISDICTION OTHER THAN THE STATE OF TEXAS. (g) Venue. This Agreement has been entered into in the county in Texas where Bank's address for notice purposes is located, and it shall be performable for all purposes in such county. Courts within the State of Texas shall have jurisdiction over any and all disputes arising under or pertaining to this Agreement and venue for any such disputes shall be in the county or judicial district where this Agreement has been executed and delivered. (h) Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be illegal, invalid or unenforceable under present or future laws, such provision shall be fully severable, shall not impair or invalidate the remainder of this Agreement and the effect thereof shall be confined to the provision held to be illegal, invalid or unenforceable. (i) No Obligation. Nothing contained herein shall be construed as an obligation on the part of Secured Party to extend or continue to extend credit to Borrower. (j) Notices. All notices, requests, demands or other communications required or permitted to be given pursuant to this Agreement shall be in writing and given by (i) personal delivery, (ii) expedited delivery service with proof of delivery, or (iii) United States mail, postage prepaid, registered or certified mail, return receipt requested, sent to the intended addressee at the address set forth on the signature page hereof or to such different address as the addressee shall have designated by written notice sent pursuant to the terms hereof and shall be deemed to have been received either, in the case of personal delivery, at the time of personal delivery, in the case of expedited delivery service, as of the date of first attempted delivery at the address and in the manner provided herein, or in the case of mail, five (5) days after deposit in a depository receptacle under the care and custody of the United States Postal Service. Either party shall have the right to change its address for notice hereunder to any other location within the continental United States by notice to the other party of such new address at least thirty (30) days prior to the effective date of such new address. (k) Binding Effect and Assignment. This Agreement (i) creates a continuing security interest in the Collateral, (ii) shall be binding on Pledgor and the heirs, executors, administrators, personal representatives, successors and assigns of Pledgor, and (iii) shall inure to the benefit of Secured Party and its successors and assigns. Without limiting the generality of the foregoing, Secured Party may pledge, assign or otherwise transfer the Indebtedness and its rights under this Agreement and any of the other Loan Documents to any other party, subject to any rights of Pledgor hereunder. Pledgor's rights and obligations hereunder may not be assigned or otherwise transferred without the prior written consent of Secured Party. (l) Termination. It is contemplated by the parties hereto that from time to time there may be no outstanding Indebtedness, but notwithstanding such occurrences, this Agreement shall remain valid and shall be in full force and effect as to subsequent outstanding Indebtedness. Upon (i) the satisfaction in full of the Indebtedness, (ii) the termination or expiration of any commitment of Secured Party to extend credit to Borrower, (iii) written request for the termination hereof delivered by Pledgor to Secured Party, and (iv) written release delivered by Secured Party to Pledgor, this Agreement and the security interests created hereby shall terminate. Upon termination of this Agreement and Pledgor's written request, Secured Party will, at Pledgor's sole cost and expense, return to Pledgor such of the Collateral as shall not have been sold or otherwise disposed of or applied pursuant to the terms hereof and execute and deliver to Pledgor such documents as Pledgor shall reasonably request to evidence such termination. PLEDGE AGREEMENT - PAGE 11 - ---------------- GAINSCO, INC. 12 (m) JURY TRIAL WAIVER. PLEDGOR AND BANK EACH HEREBY WAIVE ANY RIGHT TO A JURY TRIAL WITH RESPECT TO ANY MATTER ARISING OR RELATING TO THIS AGREEMENT OR THE OTHER LOAN DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY. (n) Cumulative Rights. All rights and remedies of Secured Party hereunder are cumulative of each other and of every other right or remedy which Secured Party may otherwise have at law or in equity or under any of the other Loan Documents, and the exercise of one or more of such rights or remedies shall not prejudice or impair the concurrent or subsequent exercise of any other rights or remedies. (o) Gender and Number. Within this Agreement, words of any gender shall be held and construed to include the other gender, and words in the singular number shall be held and construed to include the plural and words in the plural number shall be held and construed to include the singular, unless in each instance the context requires otherwise. (p) Descriptive Headings. The headings in this Agreement are for convenience only and shall in no way enlarge, limit or define the scope or meaning of the various and several provisions hereof. [SIGNATURE PAGE FOLLOWS] PLEDGE AGREEMENT - PAGE 12 - ---------------- GAINSCO, INC. 13 EXECUTED as of the date first written above. Pledgor's Address: PLEDGOR: 500 Commerce Street GAINSCO, INC. Fort Worth, Texas 76102 By: /s/ GLENN W. ANDERSON ------------------------------------- Glenn W. Anderson, President and Chief Executive Officer Secured Party's Address: Bank One, Texas, N.A. 1717 Main Street Dallas, Texas 75201 PLEDGE AGREEMENT - PAGE 13 - ---------------- GAINSCO, INC. 14 SCHEDULE A TO PLEDGE AGREEMENT BY GAINSCO, INC. The following property is a part of the Collateral as defined in Subsection 1(c): (a) All shares of capital stock of GAINSCO Service Corp., a Texas corporation, owned by Pledgor, including without limitation 1,000 shares of common stock evidenced by share certificate no. 2 issued in the name of Pledgor. (b) All shares of capital stock of Agents Processing Systems, Inc., a Texas corporation, owned by Pledgor, including without limitation 50,000 shares of common stock evidenced by share certificate nos. 1 and 2 issued in the name of Pledgor. (c) All shares of capital stock of General Agents Insurance Company of America, Inc., an Oklahoma corporation, owned by Pledgor, including without limitation 3,000,000 shares of common stock evidenced by share certificate nos. 1-5 issued in the name of Pledgor. (d) All shares of capital stock of General Agents Premium Finance Company, a Texas corporation, owned by Pledgor, including without limitation 1,000 shares of common stock evidenced by share certificate no. 1 issued in the name of Pledgor. (e) All shares of capital stock of Risk Retention Administrators, Inc., a Nevada corporation, owned by Pledgor, including without limitation 10,000 shares of common stock evidenced by share certificate no. 1 issued in the name of Pledgor. (f) All shares of capital stock of National Specialty Lines, Inc., a Florida corporation, owned by Pledgor, including without limitation 21.0526 shares of common stock evidenced by share certificate no. 8 issued in the name of Pledgor. (g) All shares of capital stock of De La Torre Insurance Adjusters, Inc., a Florida corporation, owned by Pledgor, including without limitation 228.57099 shares of common stock evidenced by share certificate no. 9 issued in the name of Pledgor. (h) All shares of capital stock of Lalande Financial Group, Inc., a Florida corporation, owned by Pledgor, including without limitation 200 shares of common stock evidenced by share certificate no. 5 issued in the name of Pledgor. EX-10.54 6 PLEDGE AGREEMENT BY GAINSCO SERVICE CORP 1 EXHIBIT 10.54 SCHEDULE A TO PLEDGE AGREEMENT BY GAINSCO SERVICE CORP. The following property is a part of the Collateral as defined in Subsection 1(c): (a) All shares of capital stock of MGA Premium Finance Company, a Texas corporation, owned by Pledgor, including without limitation 25,000 shares of common stock, as evidenced by share certificate no. 2 issued in the name of Pledgor. (b) Surplus Debenture dated December 16, 1996 in the principal amount of $2,600,000 payable by GAINSCO County Mutual Insurance Company to the order of Pledgor. -----END PRIVACY-ENHANCED MESSAGE-----