Exhibit
10.1
EXECUTION COPY
FIRST AMENDMENT
FIRST AMENDMENT, dated as of April 12, 2006 (this “
Amendment”), to the FIVE-YEAR
CREDIT AGREEMENT, dated as of July 14, 2005, among AUTONATION, INC., a Delaware corporation (the
“
Borrower”), the lenders party thereto (the “
Lenders”), X.X. XXXXXX SECURITIES INC.
(“
JPMorgan”) and BANC OF AMERICA SECURITIES LLC, as co-lead arrangers and joint
bookrunners, BANK OF AMERICA, N.A., as syndication agent, WACHOVIA BANK, NATIONAL ASSOCIATION, BNP
PARIBAS and TOYOTA MOTOR CREDIT CORPORATION, as documentation agents, and JPMORGAN CHASE BANK,
N.A., as administrative agent (in such capacity, the “
Administrative Agent”) (as amended,
supplemented or otherwise modified from time to time, the “
Credit Agreement”).
W I T N E S S E T H
:
WHEREAS, pursuant to the
Credit Agreement, the Lenders have agreed to make, and have made,
certain loans and other extensions of credit to the Borrower;
WHEREAS, the Borrower intends to (i) tender for shares of its common stock, and (ii) purchase
up to $323,513,000 principal amount of outstanding senior notes of the Borrower (collectively, the
“Transaction”).
WHEREAS, the Borrower has requested certain amendments to the
Credit Agreement as more fully
set forth herein;
WHEREAS, the Lenders have agreed to such amendments but only on the terms and conditions
contained in this Amendment.
NOW, THEREFORE, the parties hereto hereby agree as follows:
SECTION 1.
Defined Terms. Unless otherwise defined herein, terms defined in the
Credit Agreement and used herein shall have the meanings given to them in the
Credit Agreement (as
proposed to be amended).
SECTION 2.
Amendments. Effective as of the date on which all the conditions precedent
set forth in Section 3 shall be satisfied (such date, the “
Effective Date”), the
Credit
Agreement, including all exhibits and schedules thereto, shall be amended to read in its entirety
as set forth in
Exhibit A to this Amendment.
SECTION 3.
Lender Addendum. By executing this Amendment on or prior to the Effective
Date, each institution not a party to the
Credit Agreement prior to the Effective Date agrees to
and shall, as of the Effective Date, join the
Credit Agreement (as amended pursuant to this
Amendment) as a Lender.
SECTION 4. Conditions to Effectiveness. This Amendment shall become effective upon
the date on which each of the following shall have been received, each in form and substance
satisfactory to the applicable recipient:
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(i) the Administrative Agent shall have received this Amendment, executed and delivered by a
duly authorized officer of (a) the Borrower, (b) the Administrative Agent, (c) each Lender (as
defined prior to giving effect to this Amendment) and (d) each Term Lender (as defined in the
Credit Agreement after giving effect to this Amendment), together with all schedules and exhibits
hereto;
(ii) the Administrative Agent shall have received an acknowledgment and consent
(“Acknowledgment and Consent”), substantially in the form of Exhibit B hereto, duly
executed and delivered by each Guarantor;
(iii) the Administrative Agent shall have received the favorable written opinion or opinions
with respect to the Amendment and related Loan Documents and the transactions contemplated thereby
of (A) in-house legal counsel to the Borrower and (B) Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP,
special counsel to the Borrower and Guarantors, in each case dated the Effective Date, addressed to
the Administrative Agent and the Lenders and reasonably satisfactory to the Administrative Agent,
substantially in the form of Exhibits I-1 and I-2 to the Credit Agreement;
(iv) the Administrative Agent shall have received resolutions of the boards of directors or
other appropriate governing body (or of the appropriate committee thereof) of the Borrower and each
Guarantor certified by its secretary or assistant secretary as of the Effective Date, approving
this Amendment, including, without limitation, the addition of the Term Facility effected hereby,
and adopting the Loan Documents to be executed by such Person, and authorizing the execution and
delivery thereof;
(v) the Administrative Agent shall have received specimen signatures of officers or other
appropriate representatives executing the Loan Documents on behalf of the Borrower and each
Guarantor, certified by the secretary or assistant secretary of such Borrower or Guarantor;
(vi) the Administrative Agent shall have received any changes to the Organizational Documents
of the Borrower and each Guarantor since the Closing Date certified as true and correct by its
secretary or assistant secretary;
(vii) the Administrative Agent shall have received any changes to the Operating Documents of
the Borrower and each Guarantor since the Closing Date certified as of the Effective Date as true
and correct by its secretary or assistant secretary;
(viii) the Administrative Agent shall have received certificates issued as of a recent date by
the Secretaries of State of the respective jurisdictions of formation of the Borrower and each
Guarantor as to the due existence and good standing of such Person;
(ix) the Administrative Agent shall have received a Borrowing Notice in respect of the
Revolving Credit Loans and a borrowing notice in respect of the Term Loans in each case requested
to be made on the First Amendment Effective Date in accordance with the Credit Agreement (after
giving effect to this Amendment), and, if elected by the Borrower, Interest Rate Selection Notice;
provided, that the Borrowing Notice for any Eurodollar Loans shall have been received at
least three Business Days prior to the First Amendment Effective Date and shall, in the case of
requested Term Loans that are Eurodollar Loans, include a funding indemnity side letter by the
Borrower for the benefit of the Administrative Agent and each Term
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Lender reasonably satisfactory to each thereof, and in case such notices and side letter are
not so received by such time, the Borrower shall be deemed to have requested Base Rate Loans in
lieu of such Eurodollar Loans.
(x) the Administrative Agent shall have received evidence that all fees payable by the
Borrower on the Effective Date to the Administrative Agent, JPMorgan and the Lenders required
pursuant to Section 5 herein have been paid in full, including the fees and expenses of counsel to
the Administrative Agent to the extent invoiced three Business Days prior to or on the Effective
Date (which may include amounts constituting reasonable estimates of such fees and expenses
incurred or to be incurred in connection with the transaction; provided that no such estimate shall
thereafter preclude the final settling of accounts as to such fees and expenses); and
(xi) the Administrative Agent shall have received evidence that (A) the Transaction shall have
been consummated, (B) the sources and uses of funding for the Transaction shall be substantially
consistent with the table attached to the Commitment Letter dated March 6, 2006 among the Borrower,
JPMorgan and the Administrative Agent and the terms of such funding sources shall be substantially
consistent with the terms thereof or otherwise reasonably satisfactory to JPMorgan and (C) all
material governmental and third party approvals necessary in connection with the Transaction and
the financing thereof shall have been obtained and there shall not exist any action, investigation,
litigation or proceeding pending or threatened against the Borrower or any of its Subsidiaries in
any court or before any arbitrator or governmental authority that (x) materially and adversely
affects the Borrower and its Subsidiaries, taken as a whole, or (y) materially and adversely
affects the Transaction, the financing thereof or any of the other transactions contemplated hereby
or any other Loan Document or the ability of the Borrower and its Subsidiaries to perform their
respective obligations under the Loan Documents.
(xii) the Administrative Agent shall have received (i) audited consolidated financial
statements of the Borrower for the three most recent fiscal years and (ii) all other financial
statements for completed or pending acquisitions that may be required under Regulation S-X of the
Securities Act of 1933, as amended (“Regulation S-X”).
(xiii) the Administrative Agent shall have received a pro forma consolidated balance sheet of
the Borrower as at the date of the most recent balance sheet delivered pursuant to the preceding
paragraph and a pro forma statement of operations for the 12-month period ending on such date, in
each case adjusted to give effect to the consummation of the Transaction and the financings
contemplated hereby as if such transactions had occurred on such date or on the first day of such
period, as applicable, prepared in accordance with Regulation S-X and consistent in all material
respects with information previously provided by the Borrower.
(xiv) the Administrative Agent shall have received projections through 2010.
(xv) An indicative rating from both Xxxxx’x and S&P with respect to the Term Facility shall
have been given to the Lenders not later than 20 days prior to the Effective Date.
SECTION 5. Representations and Warranties. The Borrower hereby represents and
warrants to the Administrative Agent and each Lender that (before and after giving effect to this
Amendment):
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(a) Each Loan Party has the power and authority to execute, deliver and perform this Amendment
and the Acknowledgement and Consent (the “Amendment Documents”) to which it is a party and,
in the case of the Borrower, to borrow under the Credit Agreement as amended by this Amendment (the
“Amended Credit Agreement”). Each Loan Party has taken all necessary corporate or other
action to authorize the execution, delivery and performance of the Amendment Documents to which it
is a party and, in the case of the Borrower, to authorize the borrowings under the Amended Credit
Agreement. No material consent, approval or authorization of or filing, registration or
qualification with, any Governmental Authority or other authority or any other Person on the part
of the Borrower or any Subsidiary is required as a condition to the execution, delivery,
performance or consummation of the transactions contemplated by this Amendment or the
Acknowledgement and Consent, except consents, approvals, filings, registrations or qualifications
which have been obtained or effected, as the case may be and are in full force and effect. Each
Amendment Document has been duly executed and delivered on behalf of each Loan Party that is a
party thereto. Each Amendment Document constitutes a legal, valid and binding obligation of each
Loan Party that is a party thereto, enforceable against each such Loan Party in accordance with its
terms, except as enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement of creditors’ rights generally
and by general equitable principles (whether enforcement is sought by proceedings in equity or at
law).
(b) The execution, delivery and performance of the Amendment Documents will not violate any
applicable law, rule or regulation or conflict with any material indenture, agreement or other
instrument to which the Borrower is a party, or by which the properties or assets of the Borrower
is bound and will not result in the creation or imposition of any Lien, charge or encumbrance of
any nature whatsoever upon any of the properties or assets of the Borrower pursuant to any such
agreement.
(c) Each of the representations and warranties made by any Loan Party herein or in the Loan
Documents as amended by this Amendment is true and correct on and as of the Effective Date, as if
made on and as of such date (except that any representation or warranty which by its terms is made
as of an earlier date shall be true and correct as of such earlier date).
(d) There does not exist any Default or Event of Default.
SECTION 6. Payment of Expenses. The Borrower agrees to pay or reimburse the
Administrative Agent for all of its reasonable and documented out-of-pocket costs and expenses
incurred in connection with this Amendment, any other documents prepared in connection herewith and
the transactions contemplated hereby, including, without limitation, the reasonable fees and
disbursements of counsel to the Administrative Agent, but in each case only to the extent agreed
upon in the Commitment Letter, dated March 6, 2006, between the Administrative Agent, JPMorgan and
the Borrower.
SECTION 7.
No Other Amendment or Waivers; Confirmation. Except as expressly provided
hereby, all of the terms and provisions of the Credit Agreement, the Facility Guaranties and the
other Loan Documents are and shall remain in full force and effect. The amendments contained
herein shall not be construed as an amendment of any other provision of
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the Credit Agreement, the Facility Guaranties or the other Loan Documents or for any purpose
except as expressly set forth herein or a consent to any further or future action on the part of
the Borrower that would require the waiver or consent of the Administrative Agent or the Lenders.
SECTION 8.
GOVERNING LAW; MISCELLANEOUS. (a)
THIS AMENDMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES UNDER THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
(b) On and after the Effective Date, each reference in the Credit Agreement to “this
Agreement”, “hereunder”, “hereof”, “herein”, or words of like import referring to the Credit
Agreement, and each reference in the other Loan Documents to the “Credit Agreement”, “thereunder”,
“thereof”, or words of like import referring to the Credit Agreement shall mean and be a reference
to the Amended Credit Agreement.
(c) This Amendment may be executed by one or more of the parties to this Agreement on any
number of separate counterparts, and all of said counterparts taken together shall be deemed to
constitute one and the same instrument. A set of the copies of this Amendment and the
Acknowledgement and Consent signed by all the parties shall be lodged with the Borrower and the
Administrative Agent. This Amendment may be delivered by facsimile transmission of the relevant
signature pages hereof.
(d) The Administrative Agent shall give notice to the Borrower promptly upon the occurrence of
the “Effective Date.”
(e) The execution and delivery of this Amendment by any Lender shall be binding upon each of
its successors and assigns (including assignees of its Loans in whole or in part prior to
effectiveness hereof).
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed and
delivered by their respective proper and duly authorized officers as of the day and year first
above written.
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AUTONATION, INC.
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By: |
/s/ Xxxxx X. Xxxxxx
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Name: |
Xxxxx X. Xxxxxx |
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Title: |
Vice President & Treasurer |
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JPMORGAN CHASE BANK, N.A.,
as Administrative Agent and as Lender
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By: |
/s/ Xxxxxx X. Xxxxxxx
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Name: |
Xxxxxx X. Xxxxxxx |
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Title: |
Vice President |
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[Signature Page to First Amendment]
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Name of Institution: Bank of America, N.A.
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By: |
/s/ M. Xxxxxxxx Xxx
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Name: |
M. Xxxxxxxx Xxx |
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Title: |
Senior Vice President |
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Name of Institution: BNP PARIBAS
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By: |
/s/ Xxxx Xxxxx
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Name: |
Xxxx Xxxxx |
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Title: |
Vice President |
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By: |
/s/ Xxxxxx Xxxxxx
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Name: |
Xxxxxx Xxxxxx |
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Title: |
Vice President |
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Name of Institution: Toyota Motor Credit Corporation
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By: |
/s/ X. Xxxx Xxxxxx
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Name: |
X. Xxxx Xxxxxx |
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Title: |
National Accounts Manager |
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Name of Institution: Wachovia Bank, National Association
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By: |
/s/ Xxxxxxx X. Xxxxx
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Name: |
Xxxxxxx X. Xxxxx |
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Title: |
Director |
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Name of Institution: Comerica Bank
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By: |
/s/ Xxxxxx X. Xxxxxxxx
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Name: |
Xxxxxx X. Xxxxxxxx |
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Title: |
First Vice President |
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Name of Institution: SUNTRUST BANK
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By: |
/s/ Xxxxxxxx X. Xxxxx
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Name: |
Xxxxxxxx X. Xxxxx |
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Title: |
Director |
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[Signature Page to First Amendment]
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Name of Institution: Sovereign Bank
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By: |
/s/ Xxxxxxx Xxxxxxx
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Name: |
Xxxxxxx Xxxxxxx |
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Title: |
Vice President |
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Name of Institution: Sumitomo Mitsui Banking Corporation
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By: |
/s/ Xxxxx xx Xxxxxxxxxxxx
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Name: |
Xxxxx xx Xxxxxxxxxxxx |
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Title: |
General Manager |
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Name of Institution: Xxxxx Fargo Bank, N.A.
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By: |
/s/ Xxxxxxx X. Xxxxxxxxx
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Name: |
Xxxxxxx X. Xxxxxxxxx |
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Title: |
Vice President |
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Name of Institution: Fifth Third Bank
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By: |
/s/ Xxxx X. Xxxxxx
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Name: |
Xxxx X. Xxxxxx |
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Title: |
Vice President |
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Name of Institution: Union Bank of California, N.A.
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By: |
/s/ Xxxxxxxxx Xxxxx
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Name: |
Xxxxxxxxx Xxxxx |
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Title: |
Vice President |
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Name of Institution: The Bank of New York
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By: |
/s/ Xxxxx X. Xxxxxx
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Name: |
Xxxxx X. Xxxxxx |
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Title: |
Vice President |
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[Signature Page to First Amendment]
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Name of Institution: CALYON NEW YORK BRANCH
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By: |
/s/ Xxxxx Xxxxxxx
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Name: |
Xxxxx Xxxxxxx |
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Title: |
Director |
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By: |
/s/ Xxx X. Xxxxx
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Name: |
Xxx X. Xxxxx |
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Title: |
Managing Director, Deputy Manager |
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Name of Institution: LaSalle Bank, N.A.
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By: |
/s/ Xxxx X. Xxxxxx
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Name: |
Xxxx X. Xxxxxx |
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Title: |
Vice President |
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Name of Institution: Mizuho Corporate Bank, Ltd.
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By: |
/s/ Xxxxxxx Xxxx
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Name: |
Xxxxxxx Xxxx |
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Title: |
Senior Vice President & Team Leader |
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Name of Institution: REGIONS BANK
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By: |
/s/ Xxxxxx X. Xxxxxx
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Name: |
Xxxxxx X. Xxxxxx |
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Title: |
Senior Vice President |
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Name of Institution: E.Sun
Commercial Bank, Ltd., Los Angeles
Branch
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By: |
/s/ Teddy Mou
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Name: |
Teddy Mou |
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Title: |
V.P. & Deputy General Manager |
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[Signature Page to First Amendment]
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Name of Institution: The Bank of
East Asia, Ltd., New York Branch
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By: |
/s/ Xxxxxxx X. Xxxx
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Name: |
Xxxxxxx X. Xxxx |
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Title: |
Senior Vice President & Chief Lending Officer |
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By: |
/s/ Xxxxxxx Xxxxx
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Name: |
Xxxxxxx Xxxxx |
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Title: |
Senior Vice President & Chief Credit Officer |
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Name of Institution: Bank of Taiwan, New York Agency
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By: |
/s/ Xxxx Xxxx
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Name: |
Xxxx Xxxx |
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Title: |
AVP & Deputy General Manager |
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Name of Institution: Xxxxx Xxxx Bank
Co., Ltd., New York
Agency
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By: |
/s/ Chun-Kai Hu
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Name: |
Chun-Kai Hu |
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Title: |
VP & Acting General Manager |
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Name of Institution: First Commercial Bank, New York Agency
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By: |
/s/ Xxxxx X.X. Xx
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Name: |
Xxxxx X.X. Xx |
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Title: |
VP & General Manager |
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Name of Institution: Xxxxx Xxx
Commercial Bank Ltd., New York Branch
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By: |
/s/ Xxx X.X. Xxxx
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Name: |
Xxx X.X. Xxxx |
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Title: |
VP & General Manager |
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[Signature Page to First Amendment]
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Name of Institution: Israel Discount Bank of New York
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By: |
/s/ Xxxxx Xxxxxx
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Name: |
Xxxxx Xxxxxx |
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Title: |
Senior Vice President
Regional Manager for Florida |
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By: |
/s/ Xxxxxx X. Xxxxxx
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Name: |
Xxxxxx X. Xxxxxx |
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Title: |
Senior Vice President |
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[Signature Page to First Amendment]
EXECUTION COPY
FIVE-YEAR
CREDIT AGREEMENT
by and among
AUTONATION, INC.,
as Borrower,
JPMORGAN CHASE BANK, N.A.,
as Administrative Agent and as Lender,
and
BANK OF AMERICA, N.A.,
as Syndication Agent and as Lender,
and
WACHOVIA BANK, NATIONAL ASSOCIATION, SUNTRUST BANK and
TOYOTA MOTOR CREDIT CORPORATION,
as Documentation Agents and as Lenders,
and
THE LENDERS PARTY HERETO FROM TIME TO TIME
July 14, 2005
As amended pursuant to the First Amendment, dated April 12, 2006
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X.X. XXXXXX SECURITIES INC.
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BANC OF AMERICA SECURITIES LLC |
Co-Lead Arrangers and Joint Bookrunners
TABLE OF CONTENTS
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Page |
ARTICLE I
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DEFINITIONS
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1.1
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Definitions
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1 |
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1.2
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Rules of Interpretation
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25 |
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1.3
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Accounting for Permitted Acquisitions
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26 |
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1.4
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Accounting for Derivatives
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26 |
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1.5
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Accounting and Financial Determinations
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26 |
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ARTICLE II
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THE LOANS
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2.1
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Term Commitments
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2.2
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Procedure for Term Loan Borrowing
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27 |
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2.3
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Repayment of Term Loans
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28 |
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2.4
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Revolving Credit Commitments
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28 |
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2.5
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Competitive Bid Loans
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30 |
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2.6
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Payment of Interest
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34 |
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2.7
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Payment of Principal
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35 |
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2.8
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Non-Conforming Payments
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35 |
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2.9
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Pro Rata Payments
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36 |
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2.10
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Reductions and Prepayment
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36 |
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2.11
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Decrease in Amounts
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37 |
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2.12
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Conversions and Elections of Subsequent Interest Periods
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37 |
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2.13
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Fees
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38 |
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2.14
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Deficiency Advances; Failure to Purchase Participations
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39 |
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2.15
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Intraday Funding
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39 |
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2.16
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Use of Proceeds
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2.17
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Swing Line
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2.18
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Increased Amounts
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ARTICLE III
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LETTERS OF CREDIT
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3.1
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Letters of Credit
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44 |
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3.2
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Reimbursement and Participations
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44 |
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3.3
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Governmental Action
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47 |
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3.4
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Letter of Credit Fee
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48 |
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3.5
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Administrative Fees
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48 |
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ARTICLE IV
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CHANGE IN CIRCUMSTANCES
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4.1
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Increased Cost and Reduced Return
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48 |
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4.2
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Limitation on Types of Loans
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50 |
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4.3
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Illegality
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50 |
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4.4
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Treatment of Affected Loans
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51 |
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4.5
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Compensation
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51 |
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4.6
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Taxes
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4.7
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Replacement Lenders
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54 |
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|
ARTICLE V
|
|
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|
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|
CONDITIONS TO MAKING LOANS AND ISSUING LETTERS OF CREDIT
|
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5.1
|
|
Conditions of Initial Advance
|
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|
55 |
|
5.2
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|
Conditions of Loans
|
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|
56 |
|
5.3
|
|
Supplements to Schedules
|
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57 |
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|
ARTICLE VI
|
|
|
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|
REPRESENTATIONS AND WARRANTIES |
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6.1
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|
Representations and Warranties
|
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58 |
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ARTICLE VII |
|
|
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|
AFFIRMATIVE COVENANTS |
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7.1
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|
Financial Reports, Etc.
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63 |
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7.2
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|
Maintain Properties
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65 |
|
7.3
|
|
Existence, Qualification, Etc.
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65 |
|
7.4
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|
Regulations and Taxes
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65 |
|
7.5
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|
Insurance
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65 |
|
7.6
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|
True Books
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|
65 |
|
7.7
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|
Right of Inspection
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65 |
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7.8
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|
Observe all Laws
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66 |
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7.9
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|
Governmental Licenses
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66 |
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7.10
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|
Covenants Extending to Subsidiaries
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66 |
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7.11
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|
Officer’s Knowledge of Default
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66 |
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7.12
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|
Suits or Other Proceedings
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66 |
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7.13
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|
Notice of Discharge of Hazardous Material or Environmental Complaint
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66 |
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7.14
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|
Environmental Compliance
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67 |
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7.15
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|
Employee Benefit Plans
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67 |
|
7.16
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|
Continued Operations
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68 |
|
7.17
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|
Use of Proceeds
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68 |
|
ii
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Page |
7.18
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|
New Subsidiaries
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68 |
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|
ARTICLE VIII |
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|
NEGATIVE COVENANTS |
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8.1
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Financial Covenants
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68 |
|
8.2
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|
Indebtedness
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69 |
|
8.3
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|
Liens
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69 |
|
8.4
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|
Merger, Consolidation or Fundamental Changes
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70 |
|
8.5
|
|
Transactions with Affiliates
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71 |
|
8.6
|
|
Compliance with ERISA, the Code and Foreign Benefit Laws
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|
71 |
|
8.7
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|
Fiscal Year
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72 |
|
8.8
|
|
Change in Control
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72 |
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8.9
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|
Limitations on Upstreaming
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72 |
|
8.10
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|
Subsidiary Guaranties
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|
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72 |
|
8.11
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|
Manufacturer Consents
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|
72 |
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|
ARTICLE IX |
|
|
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|
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|
|
EVENTS OF DEFAULT AND ACCELERATION |
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9.1
|
|
Events of Default
|
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73 |
|
9.2
|
|
Administrative Agent to Act
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75 |
|
9.3
|
|
Cumulative Rights
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75 |
|
9.4
|
|
No Waiver
|
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76 |
|
9.5
|
|
Allocation of Proceeds
|
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|
76 |
|
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|
ARTICLE X |
|
|
|
|
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|
|
THE ADMINISTRATIVE AGENT |
|
|
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10.1
|
|
Appointment
|
|
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76 |
|
10.2
|
|
Delegation of Duties
|
|
|
77 |
|
10.3
|
|
Exculpatory Provisions
|
|
|
77 |
|
10.4
|
|
Reliance by Administrative Agent
|
|
|
77 |
|
10.5
|
|
Notice of Default
|
|
|
78 |
|
10.6
|
|
Non-Reliance on Agents and Other Lenders
|
|
|
78 |
|
10.7
|
|
Indemnification
|
|
|
79 |
|
10.8
|
|
Agent in its Individual Capacity
|
|
|
79 |
|
10.9
|
|
Successor Administrative Agent
|
|
|
79 |
|
10.10
|
|
Other Agents, etc.
|
|
|
80 |
|
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|
|
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|
|
ARTICLE XI |
|
|
|
|
|
|
|
MISCELLANEOUS |
|
|
|
|
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|
11.1
|
|
Assignments and Participations
|
|
|
80 |
|
iii
|
|
|
|
|
|
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|
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|
Page |
11.2
|
|
Notices
|
|
|
83 |
|
11.3
|
|
Right of Set-off; Adjustments
|
|
|
84 |
|
11.4
|
|
Survival
|
|
|
85 |
|
11.5
|
|
Expenses
|
|
|
85 |
|
11.6
|
|
Amendments and Waivers
|
|
|
85 |
|
11.7
|
|
Counterparts; Facsimile Signatures
|
|
|
86 |
|
11.8
|
|
Termination
|
|
|
87 |
|
11.9
|
|
Indemnification; Limitation of Liability
|
|
|
87 |
|
11.10
|
|
Severability
|
|
|
88 |
|
11.11
|
|
Entire Agreement
|
|
|
88 |
|
11.12
|
|
Agreement Controls
|
|
|
88 |
|
11.13
|
|
Usury Savings Clause
|
|
|
88 |
|
11.14
|
|
Governing Law; Waiver of Jury Trial
|
|
|
89 |
|
11.15
|
|
Confidentiality
|
|
|
90 |
|
11.16
|
|
Releases of Facility Guarantees
|
|
|
91 |
|
11.17
|
|
MANUFACTURER CONSENTS
|
|
|
91 |
|
11.18
|
|
USA Patriot Act Notice
|
|
|
91 |
|
|
|
|
EXHIBIT A
|
|
Commitment Percentages |
EXHIBIT B
|
|
Form of Assignment and Assumption |
EXHIBIT C
|
|
Notice of Appointment (or Revocation) of Authorized Representative |
EXHIBIT D-1
|
|
Form of Borrowing Notice—Revolving Credit Facility |
EXHIBIT D-2
|
|
Form of Borrowing Notice — Term Facility |
EXHIBIT D-3
|
|
Form of Borrowing Notice—Swing Line |
EXHIBIT E
|
|
Compliance Certificate |
EXHIBIT F
|
|
Form of Interest Rate Selection Notice |
EXHIBIT G
|
|
Form of Competitive Bid Quote Request |
EXHIBIT H
|
|
Form of Competitive Bid Quote |
EXHIBIT I-1
|
|
Form of Opinion of Borrower’s In-House Counsel |
EXHIBIT I-2
|
|
Form of Opinion of Borrower’s Special Counsel |
EXHIBIT J
|
|
Form of Facility Guaranty |
EXHIBIT K
|
|
Form of Commitment Increase Agreement |
EXHIBIT L
|
|
Form of Added Lender Agreement |
Schedule 1.1(a)
|
|
Existing Issuing Banks and Existing Letters of Credit |
Schedule 1.1(b)
|
|
Manufacturer Consents |
Schedule 1.1(c)
|
|
Existing Vehicle Lenders |
Schedule 6.1(c)
|
|
Subsidiaries and Investments in Other Persons |
Schedule 6.1(g)
|
|
Litigation |
Schedule 6.1(k)
|
|
Consenting Manufacturers |
Schedule 6.1(l)
|
|
ERISA |
Schedule 6.1(n)
|
|
Environmental Issues |
Schedule 7.5
|
|
Insurance |
Schedule 8.3
|
|
Existing Liens |
Schedule 8.9
|
|
Limitations on Upstreaming |
iv
FIVE-YEAR CREDIT AGREEMENT
THIS FIVE-YEAR CREDIT AGREEMENT, dated as of July 14, 2005 (the “Agreement”), is made by and
among:
AUTONATION, INC., a Delaware corporation (the “Borrower”); and
JPMORGAN CHASE BANK, N.A., a national banking association organized and existing under the
laws of the United States of America (“JPMorgan Chase Bank”), each other lender signatory hereto on
the Closing Date, each Person which may hereafter execute and deliver an Assignment and Assumption
with respect to this Agreement pursuant to Section 11.1 and each Person which hereafter
becomes an Added Lender pursuant to Section 2.18 (hereinafter JPMorgan Chase Bank and such
other lenders and Added Lenders may be referred to individually as a “Lender” or collectively as
the “Lenders”); and
JPMORGAN CHASE BANK, N.A., in its capacity as administrative agent for the Lenders (in such
capacity, the “Administrative Agent”);
W I T N E S S E T H:
WHEREAS, the Borrower has requested that the Lenders make available a revolving credit
facility of $600,000,000, with a sublimit of $200,000,000 for the issuance of standby letters of
credit and a sublimit of $25,000,000 for swing line loans; and
WHEREAS, the Borrower has requested that the Lenders make available a term loan facility of
$600,000,000; and
WHEREAS, the Lenders are willing to make such revolving credit facility and term loan facility
available to the Borrower upon the terms and conditions set forth herein;
NOW, THEREFORE, the Borrower, the Lenders and the Administrative Agent hereby agree as
follows:
ARTICLE I
Definitions
1.1 Definitions. For the purposes of this Agreement, in addition to the definitions
set forth above, the following terms shall have the respective meanings set forth below:
“Absolute Rate” has the meaning assigned to such term in Section 2.5(c)(ii)(C)
hereof.
“Acquisition” means the acquisition of (i) a controlling equity interest in another
Person (including the purchase of an option, warrant or convertible or similar type security
to acquire such a controlling interest at the time it is exercised by the holder thereof),
whether by purchase of such equity interest or upon exercise of an option or
warrant for, or conversion of securities into, such equity interest, or (ii) assets of
another
2
Person which constitute all or substantially all of the assets of such Person or of
a line or lines of business conducted by such Person.
“Acquisition Adjustments” means with respect to any Permitted Acquisition the
adjustments provided for in Section 1.3.
“Added Commitments” has the meaning assigned to such term in Section 2.18
hereof.
“Added Lender” has the meaning assigned to such term in Section 2.18 hereof.
“Adjusted Consolidated EBITDA” means Consolidated EBITDA minus any Consolidated
Interest Expense related to Vehicle Secured Indebtedness.
“Administrative Agent” has the meaning assigned to such term in the preamble hereto.
“Advance” means a borrowing under (i) the Revolving Credit Facility, consisting of the
aggregate principal amount of a Base Rate Loan or a Eurodollar Loan, as the case may be,
(ii) the Swing Line consisting of a Base Rate Loan or a Swing Line Loan bearing interest at
a rate equal to the Base Rate plus the Applicable Base Rate Margin, (iii) the Competitive
Bid Facility consisting of a Competitive Bid Loan or (iv) the Term Facility, consisting of
the aggregate principal amount of a Base Rate Loan or a Eurodollar Loan, as the case may be.
“Affiliate” means, with respect to any Person, any other Person (i) which directly or
indirectly through one or more intermediaries controls, or is controlled by, or is under
common control with such Person; (ii) which beneficially owns or holds 5% or more of any
class of the outstanding Voting Securities of such Person; or (iii) 5% or more of any class
of the outstanding Voting Securities of which is beneficially owned or held by such Person.
The term “control” means the possession, directly or indirectly, of the power to direct or
cause the direction of the management and policies of a Person, whether through ownership of
voting stock, by contract or otherwise.
“Agent-Related Persons” means the Administrative Agent (including any successor
administrative agent), together with its Affiliates (including, in the case of JPMorgan
Chase Bank in its capacity as the Administrative Agent, X.X. Xxxxxx Securities Inc.), and
the officers, directors, employees and attorneys-in-fact of such Persons and Affiliates.
“Agents” means the collective reference to the Administrative Agent and the Syndication
Agent and Documentation Agents referred to on the cover page hereof.
“Agreement” has the meaning assigned to such term in the preamble hereto, as amended,
restated, supplemented or otherwise modified from time to time.
“Aggregate Exposure” means, with respect to any Lender at any time, an amount equal to
(a) until the First Amendment Effective Date, the aggregate amount of such Lender’s
Revolving Commitments at such
time and (b) thereafter, the sum of (i) the aggregate then
unpaid principal amount of such
3
Lender’s Term Loans and (ii) the amount of such Lender’s
Revolving Credit Commitment then in effect or, if the Revolving Credit Commitments have been
terminated, the amount of such Lender’s Outstanding Revolving Credit Obligations then in
effect.
“Aggregate Exposure Percentage” means, with respect to any Lender at any time, the
ratio (expressed as a percentage) of such Lender’s Aggregate Exposure at such time to the
Aggregate Exposure of all Lenders at such time.
“Applicable Base Rate Margin” means, for any Facility, that number of basis points per
annum set forth in the Pricing Grid under the heading “Applicable Base Rate Margin” with
respect to such Facility which shall be based upon the Borrower’s Rating as set forth in the
Pricing Grid.
“Applicable Eurodollar Margin” means, for any Facility, that number of basis points per
annum set forth on the Pricing Grid under the heading “Applicable Eurodollar Margin” for
such Facility which shall be based upon the Borrower’s Rating as set forth on the Pricing
Grid.
“Applicable Facility Fee” for each Revolving Credit Lender means (a) that number of
basis points per annum set forth on the Pricing Grid under the heading “Applicable Facility
Fee”, which shall be based upon the Borrower’s Rating as set forth on the Pricing Grid,
multiplied times (b) such Lender’s Revolving Credit Commitment.
“Applicable Lending Office” means, for each Lender and for each Type of Loan, the
“Lending Office” of such Lender (or of an Affiliate of such Lender) designated for such Type
of Loan on the signature pages hereof or such other office of such Lender (or an Affiliate
of such Lender) as such Lender may from time to time specify to the Administrative Agent and
the Borrower by written notice in accordance with the terms hereof as the office by which
its Loans of such Type are to be made and maintained.
“Applicable Margin” means the Applicable Base Rate Margin or Applicable Eurodollar
Margin, as applicable.
“Applications and Agreements for Letters of Credit” means, collectively, the
Applications and Agreements for Letters of Credit executed by the Borrower from time to time
and delivered to the applicable Issuing Bank to support the issuance of Letters of Credit.
“Assignment and Assumption” shall mean an Assignment and Assumption substantially in
the form of Exhibit B (with blanks appropriately filled in) delivered to the
Administrative Agent in connection with an assignment of a Lender’s interest under this
Agreement pursuant to Section 11.1.
“Authorized Representative” means any of the Chairman, Vice Chairmen, President,
Executive Vice Presidents or Vice Presidents of the Borrower and, with respect to financial
matters, the Treasurer or Chief Financial Officer of the Borrower or any other
4
person expressly designated by the Board of Directors of the Borrower (or the appropriate committee
thereof) as an Authorized Representative of the Borrower, as set forth from time to time in
a certificate in the form attached hereto as Exhibit C.
“Automobile Retailing Activities” means new and used vehicle retailing, renting,
leasing, financing, servicing, repairing and related or complementary activities, including
but not limited to the selling of finance and insurance related products and other
aftermarket parts and accessories.
“Base Rate” means the sum of:
(a) the greater of (i) the sum of the Federal Funds Rate plus one-half of one
percent (1/2%), or (ii) the Prime Rate
plus
(b) the Applicable Base Rate Margin.
“Base Rate Loan” means a Loan for which the rate of interest is determined by reference
to the Base Rate.
“Base Rate Refunding Loan” means a Base Rate Revolving Credit Loan or Swing Line Loan
made either to (i) satisfy Reimbursement Obligations arising from a drawing under a Letter
of Credit or (ii) pay JPMorgan Chase Bank in respect of Swing Line Outstandings.
“Board” means the Board of Governors of the Federal Reserve System (or any successor
body).
“Borrower” has the meaning assigned to such term in the preamble hereto.
“Borrowing Notice” means the notice delivered by an Authorized Representative in
connection with an Advance under the Revolving Credit Facility, the Term Facility or the
Swing Line, in the forms attached hereto as Exhibits X-0, X-0 and
D-3 respectively.
“Business Day” means (i) with respect to any Eurodollar Loan or any Competitive Bid
Loan at the Eurodollar Competitive Rate, any day which is a Business Day, as described
below, and on which the relevant international financial markets are open for the
transaction of business contemplated by this Agreement in
New York City and in the relevant
interbank eurodollar market, and (ii) with respect to any other Loan and for any other
purposes hereof, any day which is not a Saturday, Sunday or a day on which banks in the
State of New York are authorized or obligated by law, executive order or governmental decree
to be closed.
“Capital Leases” means all leases which have been or should be capitalized in
accordance with GAAP (including Statement No. 13 of the Financial Accounting Standards
Board) applied on a Consistent Basis.
5
“Change in Control” means (i) if any Person or group of Persons acting in concert,
other than the Permitted Investors, shall own or control, directly or indirectly, more than
35% of the outstanding securities (on a fully diluted basis and taking into account any
Voting Securities or contract rights exercisable, exchangeable or convertible into equity
securities) of the Borrower having voting rights in the election of directors; or (ii) the
replacement or resignation (other than by reason of death, illness or incapacity), within
any two-year period, of a majority of the members of the Board of Directors of the Borrower
(the “Board”) or a change in the size of the Board, within any two-year period, which
results in members of the Board who were in office at the beginning of such two-year period
constituting less than a majority of the members of the Board (unless such replacement,
resignation or change in size of the Board shall have been effected or initiated by a
majority of the members of the Board in office at the beginning of such two-year period or
whose Board nomination or appointment were previously so approved).
“Closing Date” means the date as of which this Agreement is executed by the Borrower,
the Lenders and the Administrative Agent and on which the conditions set forth in
Section 5.1 have been satisfied or waived.
“Code” means the Internal Revenue Code of 1986, as amended, any successor provision or
provisions and any regulations promulgated thereunder.
“Commitment” means, as to any Lender, the sum of the Revolving Credit Commitment and
the Term Commitment of such Lender.
“Competitive Bid Borrowing” has the meaning assigned to such term in Section
2.5(b) hereof.
“Competitive Bid Facility” means the facility described in Section 2.5 hereof
providing for Competitive Bid Loans to the Borrower.
“Competitive Bid Loans” means the Loans bearing interest at an Absolute Rate or a
Eurodollar Competitive Rate provided for in Section 2.5 hereof.
“Competitive Bid Quote” means an offer in accordance with Section 2.5 hereof by
a Revolving Credit Lender to make a Competitive Bid Loan with one single specified interest
rate.
“Competitive Bid Quote Request” has the meaning assigned to such term in Section
2.5(b) hereof.
“Compliance Certificate” means a certificate in the form of Exhibit E furnished
to the Administrative Agent and Lenders by the Borrower pursuant to Section 7.1
hereof.
“Consenting Manufacturers” means the Manufacturers listed on Schedule 6.1(l).
“Consistent Basis” in reference to the application of GAAP means the accounting
principles (including interpretations of GAAP) observed in the period referred to are
6
comparable in all material respects to those observed in the preparation of the audited
financial statements of the Borrower referred to in Section 6.1(e)(i) hereof.
“Consolidated Capitalization Ratio” means the ratio of (a) the sum of
Consolidated Funded Indebtedness plus Vehicle Secured Indebtedness to (b) the sum of
Consolidated Total Capitalization plus Vehicle Secured Indebtedness.
“Consolidated EBITDA” means, with respect to the Borrower and its Subsidiaries for any
period of computation thereof during such period, the sum of, without duplication, (i)
Consolidated Net Income, plus (ii) Consolidated Interest Expense during such period, plus
(iii) taxes on income during such period, plus (iv) amortization during such period, plus
(v) depreciation during such period (with the exclusion of any depreciation related to
Vehicles), plus (vi) non-cash charges arising from share-based payments (as defined in
accordance with GAAP) to employees and directors, determined on a consolidated basis in
accordance with GAAP applied on a Consistent Basis subject to the Acquisition Adjustments.
“Consolidated Funded Indebtedness” means Funded Indebtedness of the Borrower and its
Subsidiaries, determined on a consolidated basis in accordance with GAAP applied on a
Consistent Basis.
“Consolidated Interest Expense” means, with respect to any period of computation
thereof, the gross interest expense of the Borrower and its Subsidiaries, including without
limitation (i) the amortization of debt discounts, (ii) the amortization of all fees payable
in connection with the incurrence of Indebtedness to the extent included in interest expense
and (iii) the portion of any liabilities incurred in connection with Capital Leases
allocable to interest expense, all determined on a consolidated basis in accordance with
GAAP applied on a Consistent Basis, subject to the Acquisition Adjustments.
“Consolidated Leverage Ratio” means, as at the date of computation thereof, the ratio
of Consolidated Funded Indebtedness (determined as at such date) to Adjusted Consolidated
EBITDA (for the Four-Quarter Period ending on (or most recently ended prior to) such date).
“Consolidated Net Income” means, for any period of computation thereof, the net income
from continuing operations of the Borrower and its Subsidiaries, but excluding all
extraordinary gains or losses, all as determined in accordance with GAAP applied on a
Consistent Basis, subject to Acquisition Adjustments.
“Consolidated Shareholders’ Equity” means at any time as of which the amount thereof is
to be determined, the sum of the following in respect of the Borrower and its Subsidiaries
(determined on a consolidated basis and excluding intercompany items among the Borrower and
its Subsidiaries and any upward adjustment after December 31,
2004 due to revaluation of assets): (i) the amount of issued and outstanding share
capital, plus (ii) the amount of additional paid-in capital and retained income (or, in the
case of a deficit, minus the amount of such deficit), minus (iii) the amount of any foreign
currency
7
translation adjustment which is included in the equity section of the consolidated
balance sheet (whether positive or negative), minus (iv) the absolute value of any treasury
stock and the absolute value of any stock subscription receivables, as determined in
accordance with GAAP applied on a Consistent Basis.
“Consolidated Tangible Assets” means Consolidated Total Assets minus the book value of
all Intangible Assets of the Borrower and its Subsidiaries.
“Consolidated Tangible Unencumbered Assets” means Consolidated Tangible Assets
excluding assets encumbered by a Lien (other than a Lien permitted by Section
8.3(ii), (iii), (v), (viii) or (x)).
“Consolidated Total Assets” means assets of the Borrower and its Subsidiaries as
determined in accordance with GAAP applied on a Consistent Basis.
“Consolidated Total Capitalization” means, as at any time as of which the amount
thereof is to be determined, the sum of Consolidated Funded Indebtedness plus Consolidated
Shareholders’ Equity.
“Contingent Obligation” of any Person means all contingent liabilities required (or
which, upon the creation or incurring thereof, would be required) to be included in the
consolidated financial statements (including footnotes) of such Person in accordance with
GAAP applied on a Consistent Basis, including Statement No. 5 of the Financial Accounting
Standards Board, and any Guaranty Obligation.
With respect to Contingent Obligations (such as litigation and pension plan
liabilities), such liabilities shall be computed at the amount which, in light of all the
facts and circumstances existing at the time, represent the present value of the amount
which can reasonably be expected to become an actual or matured liability.
“Continue”, “Continuation”, and “Continued” shall refer to the continuation pursuant to
Section 2.12 hereof of a Loan of one Type as a Loan of the same Type from one
Interest Period to the next Interest Period.
“Control Investment Affiliate” means, as to any Person, any other Person that (a)
directly or indirectly, is in control of, is controlled by, or is under common control with,
such Person and (b) is organized by such Person primarily for the purpose of making equity
or debt investments in one or more companies. For purposes of this definition, “control” of
a Person means the power, directly or indirectly, to direct or cause the direction of the
management and policies of such Person whether by contract or otherwise.
“Convert”, “Conversion”, and “Converted” shall refer to a conversion pursuant to
Section 2.12 of one Type of Loan into another Type of Loan.
“Default” means any event or condition which, with the giving or receipt of notice or
lapse of time or both, would constitute an Event of Default hereunder.
8
“Default Rate” means an interest rate equal to (a) with respect to a Base Rate Loan
under the Revolving Credit Facility, the Base Rate otherwise applicable to such Loan
plus 2% per annum; (b) with respect to a Eurodollar Loan under the Revolving Credit
Facility, the Eurodollar Rate otherwise applicable to such Loan plus 2% per annum;
(c) with respect to a Base Rate Loan under the Term Facility, the Base Rate otherwise
applicable to such Loan plus 2% per annum; (d) with respect to a Eurodollar Loan
under the Term Facility, the Eurodollar Rate otherwise applicable to such Loan plus
2% per annum; and (e) with respect to a Competitive Bid Loan under the Revolving Credit
Facility, the Absolute Rate or Eurodollar Competitive Rate otherwise applicable to such Loan
plus 2% per annum; in each case to the fullest extent permitted by applicable law.
“Dollars” and the symbol “$” means dollars constituting legal tender for the payment of
public and private debts in the United States of America.
“Eligible Special Purpose Entity” means any Person which is or is not a Subsidiary of
the Borrower which has been formed by or for the benefit of the Borrower or any Subsidiary
for the purpose of (i) financing or refinancing, leasing, selling or securitizing Vehicles
or related receivables and which finances, refinances or securitizes Vehicles or related
receivables of, leases Vehicles to or purchases Vehicles or related receivables from the
Borrower or any Subsidiary; or (ii) financing or refinancing consumer receivables, leases,
loans or retail installment contracts; provided that AutoNation Financial Services Corp.
shall not be deemed an Eligible Special Purpose Entity.
“Employee Benefit Plan” means (i) any employee benefit plan, including any Pension
Plan, within the meaning of Section 3(3) of ERISA which (A) is maintained for employees of
the Borrower or any of its ERISA Affiliates, or any Subsidiary or is assumed by the Borrower
or any of its ERISA Affiliates, or any Subsidiary in connection with any Acquisition or (B)
has at any time within the last six (6) years been maintained for the employees of the
Borrower, any current or former ERISA Affiliate, or any Subsidiary and (ii) any plan,
arrangement, understanding or scheme maintained by the Borrower or any Subsidiary that
provides retirement, deferred compensation, employee or retiree medical or life insurance,
severance benefits or any other benefit covering any employee or former employee and which
is administered under any Foreign Benefit Law or regulated by any Governmental Authority
other than the United States of America.
“Environmental Laws” means, collectively, the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended, the Superfund Amendments and
Reauthorization Act of 1986, the Resource Conservation and Recovery Act, the Toxic
Substances Control Act, as amended, the Clean Air Act, as amended, the Clean Water Act, as
amended, any other “Superfund” or “Superlien” law or any other applicable statute, law,
ordinance, code, rule, regulation, order or decree, of the United States or any foreign
nation or any province, territory, state, protectorate or other political
subdivision thereof, regulating, relating to, or imposing liability or standards of
conduct concerning, any hazardous, toxic or dangerous waste, substance or material.
9
“ERISA” means, at any date, the Employee Retirement Income Security Act of 1974, as
amended, and the regulations thereunder, all as the same shall be in effect at such date.
“ERISA Affiliate”, as applied to the Borrower, means any Person or trade or business
which is a member of a group which is under common control with the Borrower, who together
with the Borrower, is treated as a single employer within the meaning of Section 414(b) and
(c) of the Code.
“Eurodollar Competitive Rate” means, for the Interest Period for any Competitive Bid
Loan at a Eurodollar Competitive Rate, the rate of interest per annum determined pursuant to
the following formula:
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Interbank Offered Rate |
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Eurodollar
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1 — Reserve Requirement
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+ or -
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a margin |
Competitive
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=
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applicable to such |
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Rate
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Competitive Bid Loan |
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“Eurodollar Loan” or “Eurodollar Rate Loan” means a Loan for which the rate of interest
is determined by reference to the Eurodollar Rate.
“Eurodollar Rate” means, for the Interest Period for any Eurodollar Loan, the rate of
interest per annum determined pursuant to the following formula:
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Interbank Offered Rate |
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Eurodollar
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1 — Reserve Requirement
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Applicable |
Rate =
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applicable to such
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+
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Eurodollar |
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Eurodollar Loan
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Margin |
“Event of Default” means any of the occurrences set forth as such in Section
9.1 hereof, provided that any requirement for notice or lapse of time, or both, has been
satisfied.
“Excluded Subsidiaries” means, collectively, (a) all Eligible Special Purpose Entities,
(b) each Subsidiary organized solely for the purpose of engaging in the insurance business,
(c) Rosecrans Holdings, L.L.C. and Auto By Internet, Inc. and (d) any Subsidiary organized
or incorporated outside of the United States.
“Executive Officer” means the President, Chief Executive Officer, Treasurer, Chief
Financial Officer or General Counsel of the Borrower.
“Existing Issuing Banks” means those financial institutions which have issued the
Existing Letters of Credit, as described on Schedule 1.1(a) attached hereto.
10
“Existing Letters of Credit” means those Letters of Credit issued by the Existing
Issuing Banks, which are outstanding on the Closing Date and which are described in
Schedule 1.1 (a) attached hereto.
“Existing Loan Documents” means, collectively, (i) the Multi-Year Credit Agreement,
dated as of August 10, 2001, among the Borrower, the lenders party thereto and certain other
parties and the Amended and Restated 364 Day Credit Agreement, dated as of August 6, 2004,
among the Borrower, the lenders party thereto and certain other parties (collectively, the
“Existing Credit Agreements”), and (ii) all instruments, documents and agreements executed
and delivered or issued in connection with the Existing Credit Agreements, as any of such
documents have been amended, supplemented or otherwise modified.
“Existing Vehicle Lenders” means those financial institutions listed on Schedule
1.1(c).
“Existing Vehicle Secured Indebtedness” means Indebtedness arising under floorplan
arrangements with the Existing Vehicle Lenders described on Schedule 1.1(c).
“Facility” means each of the Revolving Credit Facility and the Term Facility, as
applicable.
“Facility Guaranty” means each Guaranty Agreement between one or more Guarantors and
the Administrative Agent for the benefit of the Administrative Agent and the Lenders,
delivered as of the Closing Date and otherwise pursuant to Section 7.18, as the same
may be amended, modified or supplemented.
“Facility Termination Date” means such date as all of the following shall have
occurred: (a) termination of the Revolving Credit Facility, the Term Facility, the Letter
of Credit Facility, the Competitive Bid Facility and the Swing Line and payment in full of
all Revolving Credit Outstandings, all Term Loan Outstandings, the outstanding principal of
all Competitive Bid Loans, all Swing Line Outstandings and, except as provided in clause
(b), all Letter of Credit Outstandings, together with all accrued and unpaid interest and
fees thereon, (b) the undrawn portion of Letters of Credit and all letter of credit fees
relating thereto accruing after such date to the respective expiry dates of the Letters of
Credit (which fees shall be payable solely for the account of the applicable Issuing Bank
and shall be computed based on interest rates and the Applicable Eurodollar Margin then in
effect) shall be fully cash collateralized in a manner consistent with the terms of
Section 9.1(B) or otherwise provided for pursuant to arrangements satisfactory to
the applicable Issuing Bank; and (c) the Borrower shall have fully, finally and irrevocably
paid and satisfied in full all other Obligations then due and owing (except for Obligations
consisting of continuing indemnities and other contingent Obligations of the Borrower
or any Guarantor that may be owing to any Agent-Related Person or any Lender pursuant to the
Loan Documents that expressly survive termination of this Agreement).
“FASB 133” means Statement of Financial Accounting Standards No. 133.
11
“FASB 142” means Statement of Financial Accounting Standards No. 142.
“Federal Funds Rate” means, for any day, the weighted average of the rates on overnight
federal funds transactions with members of the Federal Reserve System arranged by federal
funds brokers, as published on the next succeeding Business Day by the Federal Reserve Bank
of New York, or, if such rate is not so published for any day that is a Business Day, the
average of the quotations for the day of such transactions received by JPMorgan Chase Bank
from three federal funds brokers of recognized standing selected by it.
“Fiscal Year” means the period of the Borrower beginning on the first day of January of
each calendar year and ending on December 31 of such calendar year.
“First Amendment” means the First Amendment, dated as of April 12, 2006, to this
Agreement.
“First Amendment Documents” means the First Amendment and the Acknowledgment and
Consent executed by certain Subsidiaries in accordance with the First Amendment.
“First Amendment Effective Date” means the Effective Date as defined in Section 2 of
the First Amendment.
“Foreign Benefit Law” means any applicable statute, law, ordinance, code, rule,
regulation, order or decree of any foreign nation or any province, state, territory,
protectorate or other political subdivision thereof regulating, relating to, or imposing
liability or standards of conduct concerning, any Employee Benefit Plan.
“Four-Quarter Period” means a period of four full consecutive fiscal quarterly periods,
taken together as one accounting period.
“Funded Indebtedness” means, with respect to the Borrower and its Subsidiaries, without
duplication, all indebtedness in respect of money borrowed, including without limitation all
Capital Leases and the deferred purchase price of any property or asset, evidenced by a
promissory note, bond or similar written obligation for the payment of money (including, but
not limited to, conditional sales or similar title retention agreements), all determined in
accordance with GAAP applied on a Consistent Basis, and all undrawn amounts of letters of
credit, Guaranty Obligations (excluding Guaranty Obligations with respect to obligations of
Subsidiaries that are not Funded Indebtedness), Synthetic Lease Obligations and any
reimbursement obligations under letters of credit, provided, Vehicle Secured
Indebtedness and Vehicle Receivables Indebtedness shall be excluded from the calculation of
Funded Indebtedness.
“GAAP” means those principles of accounting set forth in pronouncements of the
Financial Accounting Standards Board, the American Institute of Certified Public Accountants
or which have other substantial authoritative support and are applicable in the
circumstances as of the date of a report, as such principles are from time to time
supplemented and amended.
12
“Government Securities” means direct obligations of, or obligations the timely payment
of principal and interest on which are fully and unconditionally guaranteed by, the United
States of America.
“Governmental Authority” shall mean any Federal, state, municipal, national or other
governmental department, commission, board, bureau, agency or instrumentality or political
subdivision thereof or any entity or officer exercising executive, legislative or judicial,
regulatory or administrative functions of or pertaining to any government, any court or any
arbitrator, in each case whether a state of the United States, the United States or foreign
nation, state, province or other governmental instrumentality.
“Guarantors” means, at any date, the Subsidiaries which are required to be parties to a
Facility Guaranty at such date.
“Guaranty Obligation” means, as to any Person, any (a) guaranty by such Person of
Indebtedness of, or other obligation payable by, any other Person or (b) assurance,
agreement, letter of responsibility, letter of awareness, undertaking or arrangement given
by such Person to an obligee of any other Person with respect to the payment of an
obligation by, or the financial condition of, such other Person, whether direct or indirect
or contingent, including any purchase or repurchase agreement covering such obligation or
any collateral security therefor, any agreement to provide funds (by means of loans, capital
contributions or otherwise) to such other Person, any agreement to support the solvency or
level of any balance sheet item of such other Person or any “keep-well” or other arrangement
of whatever nature given for the purpose of assuring or holding harmless such obligee
against loss with respect to any obligation of such other Person; provided,
however, that the term Guaranty Obligation shall not include endorsements of
instruments for deposit or collection in the ordinary course of business. The amount of any
Guaranty Obligation shall be computed at the amount which, in the light of all facts and
circumstances existing at the time, represents the present value of the amount which can
reasonably be expected to become an actual or matured liability.
“Hazardous Material” means and includes any pollutant, contaminant, or hazardous, toxic
or dangerous waste, substance or material (including without limitation petroleum products,
asbestos-containing materials and lead), the generation, handling, storage, transportation,
disposal, treatment, release, discharge or emission of which is subject to any Environmental
Law.
“Increased Commitment Date” has the meaning assigned to such term in Section
2.18 hereof.
“Increasing Lender” has the meaning assigned to such term in Section 2.18
hereof.
“Indebtedness” means with respect to any Person, without duplication, (a) all
obligations of such Person for borrowed money or with respect to deposits or advances of any
kind, including all Funded Indebtedness, all Vehicle Secured Indebtedness, all Vehicle
Receivables Indebtedness, and all Rate Hedging Obligations (but excluding any
13
premiums, fees
and deposits received in the ordinary course of business), (b) all obligations of such
Person evidenced by bonds, debentures, notes or similar instruments, (c) all obligations of
such Person under conditional sale or other title retention agreements relating to property
acquired by such Person, (d) all obligations of such Person in respect of the deferred
purchase price of property or services (excluding current accounts payable or other like
obligations incurred in the ordinary course of business), (e) all Indebtedness of others
secured by (or for which the holder of such Indebtedness has an existing right, contingent
or otherwise, to be secured by) any Lien on property owned or acquired by such Person,
whether or not the Indebtedness secured thereby has been assumed, (f) all Guaranty
Obligations of such Person with respect to Indebtedness of others, (g) all Capital Lease
obligations of such Person, (h) all obligations, contingent or otherwise, of such Person as
an account party in respect of letters of credit and (i) all obligations, contingent or
otherwise, of such Person in respect of bankers’ acceptances.
“Indemnified Liabilities” has the meaning therefor provided in Section 11.9.
“Intangible Assets” means all assets of the Borrower and its Subsidiaries which would
be treated as intangible assets, such as (without limitation) goodwill (whether representing
the excess of cost over book value of assets acquired or otherwise), capitalized debt cost
and expenses, unamortized debt discount and expense, consignment inventory rights, patents,
trademarks, trade names, copyrights, franchises and licenses, all as determined in
accordance with GAAP applied on a Consistent Basis.
“Interbank Offered Rate” means, with respect to any Eurodollar Rate Loan or any
Competitive Bid Loan at a Eurodollar Competitive Rate, with respect to each day during each
Interest Period pertaining thereto, the rate per annum determined on the basis of the rate
for deposits in Dollars for a period equal to such Interest Period commencing on the first
day of such Interest Period appearing on Page 3750 of the Telerate screen as of 11:00 A.M.,
London time, two Business Days prior to the beginning of such Interest Period. In the event
that such rate does not appear on Page 3750 of the Telerate screen (or otherwise on such
screen), the “Interbank Offered Rate” shall be determined by reference to such other
comparable publicly available service for displaying eurodollar rates as may be selected by
the Administrative Agent or, in the absence of such availability, by reference to the rate
at which the Administrative Agent is offered Dollar deposits at or about 11:00 A.M., New
York City time, two Business Days prior to the beginning of such Interest Period in the
interbank eurodollar market where its eurodollar and foreign currency and exchange
operations are then being conducted for delivery on the first day of such Interest Period
for the number of days comprised therein.
“Interest Period” (a) for each Eurodollar Loan means a period commencing on the date
such Eurodollar Loan is made or Converted or Continued and each subsequent period commencing
on the last day of the immediately preceding Interest Period for such Eurodollar Loan, and
ending, at the Borrower’s option, on the date one, three or six months thereafter or,
subject to market availability to all Lenders, one week, two months or twelve months
thereafter, as notified to the Administrative Agent by the Authorized Representative three
(3) Business Days prior to the beginning of such Interest Period; provided, that,
14
(i) if the Authorized Representative fails to notify the Administrative Agent
of the length of an Interest Period three (3) Business Days prior to the first day
of such Interest Period, the Loan for which such Interest Period was to be
determined shall be deemed to be a Base Rate Loan bearing interest at the Base Rate,
as of the first day thereof;
(ii) if an Interest Period for a Eurodollar Loan would end on a day which is
not a Business Day such Interest Period shall be extended to the next Business Day
(unless such extension would cause the applicable Interest Period to end in the
succeeding calendar month, in which case such Interest Period shall end on the next
preceding Business Day); and
(iii) on any day, with respect to all Revolving Credit Loans, Term Loans and
Competitive Bid Loans, there shall not be in effect (x) more than ten (10) Interest
Periods, or (y) more than one (1) Interest Period having a term of one (1) week;
(b) for each Competitive Bid Loan at an Absolute Rate means the period commencing on
the date of such Loan and ending on such date as may be mutually agreed upon by the Borrower
and the Lender or Lenders making such Competitive Bid Loan or Loans, as the case may be,
comprising such Competitive Bid Loan; provided that no Interest Period for a
Competitive Bid Loan at an Absolute Rate shall be for a period of less than seven (7) or
greater than 90 days; and
(c) for each Competitive Bid Loan at a Eurodollar Competitive Rate means the period
commencing on the date such Competitive Bid Loan is made and ending, at the Borrower’s
option, on the date one week or one, two, three, six or (to the extent available) twelve
months thereafter as notified by the Borrower to such Lender by the Authorized
Representative three (3) Business Days prior to the beginning of such Interest Period;
provided that if an Interest Period for such Loan would end on a day which is not a
Business Day, such Interest Period shall be extended to the next Business Day (unless such
extension would cause the applicable Interest Period to end in the succeeding calendar
month, in which case such Interest Period shall end in the next preceding Business Day).
“Interest Rate Selection Notice” means the written notice delivered by an Authorized
Representative in connection with the election of a subsequent Interest Period for any
Eurodollar Loan or Competitive Bid Loan bearing interest at a Eurodollar
Competitive Rate or the Conversion of any Eurodollar Rate Loan or Competitive Bid Loan
bearing interest at a Eurodollar Competitive Rate into a Base Rate Loan or the Conversion of
any Base Rate Loan into a Eurodollar Rate Loan or Competitive Bid Loan bearing interest at a
Eurodollar Competitive Rate, in the form of Exhibit F.
“Issuing Banks” means the Lenders who agree from time to time (upon the request of
Borrower) to issue (provided that no Lender shall be obligated to do so) Letters of Credit
(including the Existing Issuing Banks) in accordance with Section 3.1 and “Issuing
Bank” means any one of such Issuing Banks. On any date of determination, no
15
more than four
(4) Lenders (including any Existing Issuing Banks) may be Issuing Banks hereunder.
“JPMorgan Chase Bank” shall have the meaning assigned to such term in the preamble
hereto.
“Lender” shall as of any date have the meaning assigned to such term in the preamble
hereto so long as such Lender still holds a Term Loan, a Revolving Credit Loan or a
Revolving Credit Commitment as of such date.
“Letter of Credit” means (i) a standby letter of credit issued by an Issuing Bank for
the account of the Borrower in favor of a Person advancing credit or securing an obligation
on behalf of the Borrower or any of its Subsidiaries and (ii) each of the Existing Letters
of Credit.
“Letter of Credit Commitment” means with respect to each Revolving Credit Lender, the
obligation of such Lender to acquire Letter of Credit Participations up to an aggregate
stated amount at any one time outstanding equal to such Lender’s Revolving Percentage of the
Total Letter of Credit Commitment as the same may by increased or decreased from time to
time pursuant to this Agreement.
“Letter of Credit Facility” means the facility described in Article III hereof
providing for the issuance by the Issuing Banks for the account of the Borrower of Letters
of Credit in an aggregate stated amount at any time outstanding not exceeding the Total
Letter of Credit Commitment.
“Lien” means any interest in property securing any obligation owed to, or a claim by, a
Person other than the owner of the property, whether such interest is based on the common
law, statute or contract, and including but not limited to the lien or security interest
arising from a mortgage, encumbrance, pledge, security agreement, conditional sale or trust
receipt or a lease, consignment or bailment for security purposes. For the purposes of this
Agreement, the Borrower and its Subsidiaries shall be deemed to be the owners of any
property which either of them have acquired or hold subject to a conditional sale agreement,
financing lease, or other arrangement pursuant to which title to the property has been
retained by or vested in some other Person for security purposes.
“Loan” or “Loans” means any of the Revolving Credit Loans, Term Loans, Competitive Bid
Loans or Swing Line Loans.
“Loan Documents” means this Agreement, the Notes, the Applications and Agreements for
Letters of Credit, the Facility Guaranties and all other instruments and documents
heretofore or hereafter executed or delivered to and in favor of any Lender or the
Administrative Agent in connection with the Loans or the Letters of Credit made, issued or
created under this Agreement, as the same may be amended, modified or supplemented from time
to time.
“Loan Parties” means the collective reference to the Borrower and the Guarantors.
16
“Manufacturer” means a vehicle manufacturer or distributor which is party to a dealer
agreement, franchise agreement or framework agreement with, or binding upon, the Borrower or
any Retail Subsidiary.
“Manufacturer Consents” means, collectively, (a) those consent letters described on
Schedule 1.1(b) attached hereto on the date hereof, and (b) any additional written
consent by a Manufacturer to the Loan Documents and the transactions contemplated thereby
which consent is added to Schedule 1.1(b) and is in form and substance reasonably
acceptable to the Administrative Agent.
“Material Adverse Effect” means a material adverse effect on (i) the business,
properties, operations, business prospects, or condition, financial or otherwise, of the
Borrower and its Subsidiaries, taken as a whole, (ii) the ability of the Borrower to pay or
perform its obligations, liabilities and indebtedness under the Loan Documents as such
payment or performance becomes due in accordance with the terms thereof, or (iii) the
rights, powers and remedies of the Administrative Agent or any Lender under any Loan
Document or the validity, legality or enforceability thereof.
“Moody’s” means Xxxxx’x Investors Service, Inc., a Delaware corporation.
“Mortgage Facilities” means one or more debt facilities with banks, manufacturers
and/or other entities providing for borrowings by the Borrower or a Subsidiary secured
primarily by real estate, in each case as such facilities are amended, modified or
supplemented from time to time.
“Multiemployer Plan” means a “multiemployer plan” as defined in Section 4001(a)(3) of
ERISA to which the Borrower or any ERISA Affiliate is making, or is accruing an obligation
to make, contributions or has made, or been obligated to make, contributions within the
preceding six (6) Fiscal Years.
“Notes”: the collective reference to any promissory note evidencing Loans.
“Obligations” means the obligations, liabilities and Indebtedness of the Borrower with
respect to (i) the principal and interest on the Loans, (ii) the Reimbursement Obligations
and (iii) the payment and performance of all other obligations, liabilities and Indebtedness
of the Borrower hereunder, under any one or more of the other Loan Documents or with respect
to the Loans.
“Operating Documents” means with respect to any corporation, limited liability company,
partnership, limited partnership, limited liability partnership or other legally authorized
incorporated or unincorporated entity, the bylaws, operating agreement, partnership
agreement, limited partnership agreement or other applicable documents relating to the
operation, governance or management of such entity.
“Organizational Action” means with respect to any corporation, limited liability
company, partnership, limited partnership, limited liability partnership or other legally
authorized incorporated or unincorporated entity, any corporate, organizational or
17
partnership action (including any required shareholder, member or partner action), or other
similar action, as applicable, taken by such entity.
“Organizational Documents” means with respect to any corporation, limited liability
company, partnership, limited partnership, limited liability partnership or other legally
authorized incorporated or unincorporated entity, the articles of incorporation, certificate
of incorporation, articles of organization, certificate of limited partnership, certificate
of formation or other applicable organizational or charter documents relating to the
creation of such entity.
“Outstanding Letters of Credit” means all undrawn amounts of Letters of Credit plus
Reimbursement Obligations.
“Outstanding Revolving Credit Obligations” means the sum of (i) the Revolving Credit
Outstandings, (ii) Outstanding Letters of Credit, (iii) Swing Line Outstandings, and (iv)
outstanding Competitive Bid Loans, all as at the date of determination thereof.
“Participation” means, with respect to any Revolving Credit Lender (other than JPMorgan
Chase Bank with respect to a Swing Line Loan, and other than the applicable Issuing Bank
with respect to a Letter of Credit), the extension of credit represented by the
participation of such Lender hereunder in (a) the rights of JPMorgan Chase Bank in respect
of a Swing Line Loan made or (b) the liability of the applicable Issuing Bank in respect of
Letters of Credit issued, and the rights of the applicable Issuing Bank in respect of
Reimbursement Obligations, all in accordance with the terms hereof.
“PBGC” means the Pension Benefit Guaranty Corporation and any successor thereto.
“Pension Plan” means any employee pension benefit plan within the meaning of Section
3(2) of ERISA, other than a Multiemployer Plan, which is subject to the provisions of Title
IV of ERISA or Section 412 of the Code and which (i) is maintained for employees of the
Borrower or any of its ERISA Affiliates or is assumed by the Borrower or any of its ERISA
Affiliates in connection with any Acquisition or (ii) has at any time during the last six
(6) years been maintained for the employees of the Borrower or any current or former ERISA
Affiliate.
“Permitted Acquisition” means an Acquisition effected with the consent and approval of
the Board of Directors (or the appropriate committee thereof) or other applicable governing
body of such Person being acquired and the duly obtained approval
of such shareholders or other holders of equity interests in such Person as may be
required to be obtained under applicable law, the charter documents of or any shareholder
agreements or similar agreements pertaining to such Person, which Person derives the
majority of its revenues from Automobile Retailing Activities.
“Permitted Indebtedness” means (i) the endorsement of negotiable instruments for
deposit or collection or similar transactions in the ordinary course of business and (ii)
Indebtedness owing to the Borrower or a Subsidiary.
18
“Permitted Investor” means (a) any Person that, on the Closing Date, owns more than 10%
of the outstanding securities of the Borrower having voting rights in the election of
directors and (b) any Control Investment Affiliate of any such Person.
“Person” means an individual, partnership, corporation, limited liability company,
trust, unincorporated organization, association, joint venture or a government or agency or
political subdivision thereof.
“Pricing Grid” means the table set forth below setting forth the Rating and the number
of basis points to be utilized in calculating each of (i) the Applicable Eurodollar Margin
with respect to Revolving Credit Loans and Swing Line Loans, (ii) the Applicable Base Rate
Margin with respect to Revolving Credit Loans and Swing Line Loans, (iii) the Applicable
Eurodollar Margin with respect to Term Loans, (iv) the Applicable Base Rate Margin with
respect to Term Loans, and (v) the Applicable Facility Fee. Any change in the Applicable
Eurodollar Margin with respect to Revolving Credit Loans and Swing Line Loans, Applicable
Base Rate Margin with respect to Revolving Credit Loans and Swing Line Loans, Applicable
Eurodollar Margin with respect to Term Loans, Applicable Base Rate Margin with respect to
Term Loans or Applicable Facility Fee shall become effective on and as of the date of any
public announcement by any Rating Agency of any Rating that indicates a different Applicable
Eurodollar Margin with respect to Revolving Credit Loans and Swing Line Loans, Applicable
Base Rate Margin with respect to Revolving Credit Loans and Swing Line Loans, Applicable
Eurodollar Margin with respect to Term Loans, Applicable Base Rate Margin with respect to
Term Loans or Applicable Facility Fee.
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Applicable |
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|
Applicable |
|
|
|
|
|
|
|
Applicable |
|
|
Applicable Base |
|
|
Eurodollar |
|
|
Base Rate |
|
|
|
|
|
|
|
Eurodollar Margin |
|
|
Rate Margin |
|
|
Margin |
|
|
Margin |
|
|
|
Applicable |
|
|
(Revolving and |
|
|
(Revolving and |
|
|
(Term |
|
|
(Term |
|
Ratings |
|
Facility Fee |
|
|
Swing Line Loans) |
|
|
Swing Line Loans) |
|
|
Loans) |
|
|
Loans) |
|
Baa1 / BBB+ or
higher |
|
|
10.0 |
|
|
|
40.0 |
|
|
|
0 |
|
|
|
100.0 |
|
|
|
0 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Baa2 / BBB |
|
|
12.5 |
|
|
|
50.0 |
|
|
|
0 |
|
|
|
100.0 |
|
|
|
0 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Baa3 / BBB- |
|
|
15.0 |
|
|
|
60.0 |
|
|
|
0 |
|
|
|
100.0 |
|
|
|
0 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Ba1 / BB+ |
|
|
20.0 |
|
|
|
80.0 |
|
|
|
0 |
|
|
|
125.0 |
|
|
|
25.0 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Ba2 / BB |
|
|
37.5 |
|
|
|
87.5 |
|
|
|
0 |
|
|
|
150.0 |
|
|
|
50.0 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Ba3 / BB- or lower |
|
|
50.0 |
|
|
|
125.0 |
|
|
|
25.0 |
|
|
|
200.0 |
|
|
|
100.0 |
|
If the Ratings from the Rating Agencies fall within different levels: (i) if one Rating
is one level higher than the other Rating, the Pricing Grid level will be based on the
higher
19
Rating and (ii) otherwise, the Pricing Grid level will be based on the Rating that is
one level higher than the lower Rating.
“Prime Rate” means the rate of interest per annum publicly announced from time to time
by JPMorgan Chase Bank as its prime rate in effect at its principal office in New York City
(the Prime Rate not being intended to be the lowest rate of interest charged by JPMorgan
Chase Bank in connection with extensions of credit to debtors).
“Principal Office” means the office of the Administrative Agent at JPMorgan Chase Bank,
N.A., Loan & Agency, 0000 Xxxxxx Xxxxxx, 00xx Xxxxx, Xxxxxxx, Xxxxx 00000, Attention: Xxxxxx
Xxxxxx or such other office and address as the Administrative Agent may from time to time
designate.
“Quotation Date” has the meaning assigned to such term in Section (b)2.5(b)
hereof.
“Rate Hedge Value” means, with respect to each contract, instrument or other
arrangement creating a Rate Hedging Obligation, the net obligations of the Borrower or any
Subsidiary thereunder equal to the termination value thereof as determined in accordance
with its provisions (if such Rate Hedging Obligation has been terminated) or the xxxx to
market value thereof as determined on the basis of available quotations from any recognized
dealer in, or from Bloomberg or other similar service providing market quotations for, the
applicable Rate Hedging Obligation (if such Rate Hedging Obligation has not been
terminated).
“Rate Hedging Obligations” means, without duplication, any and all obligations of the
Borrower or any Subsidiary, whether absolute or contingent and howsoever and whensoever
created, arising, evidenced or acquired (including all renewals, extensions and
modifications thereof and substitutions therefor), under (i) any and all agreements, devices
or arrangements designed to protect at least one of the parties thereto from the
fluctuations of interest rates, exchange rates or forward rates applicable to such party’s
assets, liabilities or exchange transactions, including, but not limited to,
Dollar-denominated or cross-currency interest rate exchange agreements, forward currency
exchange agreements, interest rate cap or collar protection agreements, forward rate
currency or interest rate options, puts, warrants and those commonly known as interest rate
“swap” agreements; (ii) all other “derivative instruments” as defined in FASB 133 and which
are subject to the reporting requirements of FASB 133; and (iii) any and all cancellations,
buybacks, reversals, terminations or assignments of any of the foregoing.
For purposes of any computation hereunder, each Rate Hedging Obligation shall be valued
at the Rate Hedge Value thereof.
“Rating” means the rating assigned by any Rating Agency to the Loans.
“Rating Agencies” means S&P and Moody’s.
“Reimbursement Obligation” shall mean at any time, the obligation of the Borrower with
respect to any Letter of Credit to reimburse the applicable Issuing Bank and the Revolving
Credit Lenders to the extent of their respective Participations
20
(including by the receipt by
such Issuing Bank of proceeds of Revolving Credit Loans pursuant to Section 3.2) for
amounts theretofore paid by such Issuing Bank or the Lenders pursuant to a drawing under
such Letter of Credit;
“Required Lenders” means, as of any date, the holders of more than 50% of the sum of
(i) the Term Loan Outstandings and (ii) the Total Revolving Credit Commitments then in
effect or, if the Revolving Credit Commitments have been terminated, the Outstanding
Revolving Credit Obligations.
“Reserve Requirement” means, for any day as applied to any Eurodollar Loan or
Competitive Rate Loan bearing interest at a Eurodollar Competitive Rate during any Interest
Period, the reserve percentage (expressed as a decimal, rounded upward to the next 1/100th
of 1%), if any, in effect on such day with respect to such Eurodollar Loan or Competitive
Rate Loan under regulations issued from time to time by the Board for determining the
maximum reserve requirement (including any emergency, supplemental or other marginal reserve
requirement) with respect to Eurocurrency funding (currently referred to as “Eurocurrency
liabilities”). The Eurodollar Rate for each outstanding Eurodollar Rate Loan and the
Eurodollar Competitive Rate for each outstanding Competitive Bid Loan bearing interest at a
Eurodollar Competitive Rate shall be adjusted automatically as of the effective date of any
change in the Reserve Requirement.
“Retail Subsidiary” means a Subsidiary which is engaged in the sale or distribution of
new or used motor vehicles, or both, and/or parts and accessories used in connection with
motor vehicles.
“Revolving Credit Commitment” means with respect to each Revolving Credit Lender, the
obligation of such Lender to make Revolving Credit Loans to the Borrower and purchase
Participations up to an aggregate principal amount at any one time outstanding, determined
with reference to such Lender’s Revolving Percentage as set forth on Exhibit A
attached hereto of the Total Revolving Credit Commitment as the same may be increased or
decreased from time to time pursuant to this Agreement.
“Revolving Credit Facility” means the facility described in Section 2.4(a)
hereof providing for Revolving Credit Loans to the Borrower by the Revolving Credit Lenders
in the aggregate principal amount of the Total Revolving Credit Commitment less the
aggregate amount of Swing Line Outstandings, Outstanding Letters of Credit and outstanding
Competitive Bid Loans.
“Revolving Credit Lender” means each Lender that has a Revolving Credit Commitment or
that holds Revolving Credit Loans.
“Revolving Credit Loan” means a Loan made pursuant to the Revolving Credit Facility.
“Revolving Credit Outstandings” means, as of any date of determination, the aggregate
principal amount of all Revolving Credit Loans then outstanding.
21
“Revolving Credit Termination Date” means (i) the Stated Termination Date, (ii) such
earlier date of termination of Lenders’ obligations pursuant to Section 9.1 upon the
occurrence of an Event of Default, or (iii) such date as the Borrower may voluntarily
permanently terminate the Revolving Credit Facility, the Swing Line, the Letter of Credit
Facility and the Competitive Bid Facility by payment in full of all Obligations with respect
to the Revolving Credit Facility (including the discharge of all Obligations of JPMorgan
Chase Bank, the Issuing Banks and the Revolving Credit Lenders with respect to Letters of
Credit, Participations, Swing Line Loans and Competitive Bid Loans) other than contingent
indemnification Obligations with respect to the Revolving Credit Facility and other
contingent Obligations with respect to the Revolving Credit Facility that expressly survive
termination of this Agreement.
“Revolving Percentage”: as to any Revolving Credit Lender at any time, the percentage
which such Lender’s Revolving Credit Commitment (which Revolving Credit Commitment for each
Lender as of the First Amendment Effective Date is as set forth in Exhibit A attached hereto
and incorporated herein by this reference) then constitutes of the Total Revolving Credit
Commitment (or, at any time after the Revolving Credit Commitments shall have expired or
terminated, the percentage which the aggregate principal amount of such Lender’s Revolving
Credit Loans then outstanding constitutes of the Revolving Credit Outstandings);
provided that each Revolving Percentage of each Revolving Credit Lender shall be
increased or decreased to reflect any assignments to or by such Lender effected in
accordance with Section 11.1 hereof and any voluntary or mandatory reductions in
such committed amounts.
“S&P” means Standard & Poor’s Rating Group, a division of The XxXxxx-Xxxx Companies.
“Senior Note Guaranty” means each Guaranty Agreement delivered by the Guarantors to the
Trustee for the benefit of the holders of the Senior Notes.
“Senior Note Indenture” means the Indenture dated August 10, 2001 among the Borrower,
the guarantors party thereto and the Trustee pursuant to which the Borrower has issued the
Senior Notes as amended, restated, supplemented or otherwise modified from time to time.
“Senior Notes” means the Borrower’s 9% Senior Notes due August 1, 2008 issued pursuant
to the Senior Note Indenture and shall include the notes issued in exchange therefor (as
contemplated by the Senior Note Indenture and the registration
rights agreement described therein), as amended, restated, supplemented or otherwise
modified from time to time.
“Stated Termination Date” means July 14, 2010.
“Subsidiary” means any corporation or other entity in which more than 50% of its
outstanding voting stock or more than 50% of all equity interests is owned directly or
indirectly by the Borrower and/or by one or more of the Borrower’s Subsidiaries.
22
“Subsidiary Securities” means the shares of capital stock or the other equity interests
issued by or equity participations in any Subsidiary, whether or not constituting a
“security” under Article 8 of the Uniform Commercial Code as in effect in any jurisdiction.
“Swing Line” means the revolving line of credit established by JPMorgan Chase Bank in
favor of the Borrower pursuant to Section 2.17.
“Swing Line Loan” means a Loan made by JPMorgan Chase Bank to the Borrower pursuant to
Section 2.17.
“Swing Line Outstandings” means, as of any date of determination, the aggregate
principal amount of all Swing Line Loans then outstanding.
“Synthetic Lease Obligations” means all monetary obligations of a lessee under any tax
retention or other synthetic leases which is treated as an operating lease under GAAP but
the liabilities under which are or would be characterized as indebtedness of such Person for
tax purposes or upon the insolvency of such Person. The amount of Synthetic Lease
Obligations in respect of any synthetic lease at any date of determination thereof shall be
equal to the aggregate purchase price of any property subject to such lease less the
aggregate amount of payments of rent theretofore made which reduce the lessee’s obligations
under such synthetic lease and which are not the financial equivalent of interest.
“Term Commitment” means, as to any Lender, the obligation of such Lender, if any, to
make a Term Loan to the Borrower in a principal amount not to exceed the amount set forth
under the heading “Term Commitment” opposite such Lender’s name on Exhibit A
attached hereto. The original aggregate amount of the Term Commitments is $600,000,000.
“Term Facility” means the Term Commitments and the Term Loans made
thereunder.
“Term Percentage” means, as to any Term Lender at any time, the percentage which such
Lender’s Term Commitment then constitutes of the aggregate Term Commitments (or, at any time
after the First Amendment Effective Date, the percentage which the aggregate principal
amount of such Lender’s Term Loans then outstanding constitutes of the aggregate principal
amount of the Term Loans then outstanding); provided, that each Term Percentage of
each Term Lender shall be increased or decreased
to reflect any assignments to or by such Lender effected in accordance with Section
11.1 hereof.
“Term Lender” means each Lender that has a Term Commitment or that holds a Term Loan.
“Term Loan” has the meaning assigned to such term in Section 2.1.
23
“Term Loan Outstandings” means, as of any date of determination, the aggregate
principal amount of all Term Loans then outstanding.
“Termination Event” means: (i) a “Reportable Event” described in Section 4043 of ERISA
and the regulations issued thereunder (other than an event for which the 30-day notice
requirement has been waived by applicable regulation); or (ii) the withdrawal of the
Borrower or any ERISA Affiliate from a Pension Plan during a plan year in which it was a
“substantial employer” as defined in Section 4001(a)(2) of ERISA or was deemed such under
Section 4062(e) of ERISA; or (iii) the termination of a Pension Plan, the filing of a notice
of intent to terminate a Pension Plan or the treatment of a Pension Plan amendment as a
termination under Section 4041 of ERISA; or (iv) the institution of proceedings to terminate
a Pension Plan by the PBGC; or (v) any other event or condition which would constitute
grounds under Section 4042(a) of ERISA for the termination of, or the appointment of a
trustee to administer, any Pension Plan; or (vi) the partial or complete withdrawal of the
Borrower or any ERISA Affiliate from a Multiemployer Plan; or (vii) the imposition of a Lien
pursuant to Section 412 of the Code or Section 302 of ERISA; or (viii) any event or
condition which results in the reorganization or insolvency of a Multiemployer Plan under
Section 4241 or Section 4245 of ERISA, respectively; or (ix) any event or condition which
results in the termination of a Multiemployer Plan under Section 4041A of ERISA or the
institution by the PBGC of proceedings to terminate a Multiemployer Plan under Section 4042
of ERISA; or (x) any event or condition with respect to any Employee Benefit Plan which is
regulated by any Foreign Benefit Law that results in the termination of such Employee
Benefit Plan or the revocation of such Employee Benefit Plan’s authority to operate under
the applicable Foreign Benefit Law.
“Total Letter of Credit Commitment” means an amount not to exceed $200,000,000.
“Total Revolving Credit Commitment” means $600,000,000, as increased from time to time
in accordance with Section 2.18 and as reduced from time to time in accordance with
Section 2.10 and Section 2.11, which shall be made available by the Lenders
to the Borrower during the period from the date hereof until the Revolving Credit
Termination Date.
“Transaction” has the meaning assigned to such term in the First Amendment.
“Trustee” means Xxxxx Fargo Bank Minnesota, National Association, as trustee under the
Senior Note Indenture for the holders of the Senior Notes.
“Type” shall mean any type of Loan (i.e., a Base Rate Loan or a Eurodollar Loan).
“Vehicle Receivables Indebtedness” means Indebtedness incurred by any Eligible Special
Purpose Entity to finance, refinance or guaranty the financing or refinancing of consumer
receivables, leases, loans or retail installment contracts incurred in the sale, transfer or
lease of Vehicles; provided (x) such Indebtedness shall in accordance with
24
GAAP on
a Consistent Basis not appear as an asset or liability on the balance sheet of the Borrower
or any of its Subsidiaries; (y) no assets other than the Vehicles, consumer receivables,
leases, loans, retail installment contracts or related proceeds (including, without
limitation, proceeds from insurance, Vehicles and other obligations under such receivables,
leases, loans or retail installment contracts) to be so financed or refinanced secure such
Indebtedness; and (z) neither the Borrower nor any of its Subsidiaries other than such
Eligible Special Purpose Entity shall incur any liability with respect to such Indebtedness
other than liability arising by reason of (1) a breach of a representation or warranty or
customary indemnities in each case contained in any instrument relating to such Indebtedness
or (2) customary interests retained by the Borrower or its Subsidiaries in such assets or
Indebtedness.
“Vehicle Secured Indebtedness” means, collectively, (a) the Existing Vehicle Secured
Indebtedness and (b) Indebtedness incurred by the Borrower, any Subsidiary or any Eligible
Special Purpose Entity to lease, finance or refinance or guaranty the leasing, financing or
refinancing of Vehicles or related receivables, which Indebtedness in the case of this
clause (b) is secured by the Vehicles or related receivables so financed and (but only to
the extent permitted by the last sentence of this definition) other assets, to the extent,
at any date of determination thereof, the amount of such Indebtedness does not exceed the
depreciated book value of the Vehicles so financed or the book value of such related
receivables, in each case plus the book value of any other assets securing such Indebtedness
(in the aggregate, “Security Book Value”) as determined in accordance with GAAP applied on a
Consistent Basis. It is understood that, to the extent the amount of such Indebtedness
exceeds the associated Security Book Value, such excess amount shall not constitute “Vehicle
Secured Indebtedness” and, accordingly, shall constitute “Funded Indebtedness”. On the date
any Vehicle Secured Indebtedness is incurred and on any date any lien is granted securing
such Indebtedness, the percentage of Security Book Value contributed by Vehicles and related
receivables financed thereby shall not be less than 85% of the total Security Book Value
with respect to such Indebtedness.
“Vehicles” means all now existing or hereafter acquired new and used automobiles, sport
utility vehicles, trucks and vans of all types and descriptions, whether held for sale,
lease, rental or operational purposes, which relate to the Borrower’s or any Subsidiary’s
Automobile Retailing Activities.
“Voting Securities” means shares of capital stock issued by a corporation, or
equivalent interests in any other Person, the holders of which are ordinarily, in the
absence of contingencies, entitled to vote for the election of directors (or persons
performing similar functions) of such Person, even if the right so to vote has been
suspended by the happening of such a contingency.
“Year 2006 Senior Note Guaranty” means each Guaranty Agreement delivered by the
Guarantors to the Trustee for the benefit of the holders of the Year 2006 Senior Notes.
“Year 2006 Senior Note Indenture” means the Indenture dated April 12, 2006 among the
Borrower, the guarantors party thereto and the Xxxxx Fargo Bank, N.A.
25
pursuant to which the
Borrower has issued the Year 2006 Senior Notes as amended, restated, supplemented or
otherwise modified from time to time.
“ Year 2006 Senior Notes” means the Borrower’s 7% Senior Notes due April 15, 2014 and
the Floating Rate Senior Notes due April 15, 2013 issued pursuant to the Year 2006 Senior
Note Indenture and shall include the notes issued in exchange therefor (as contemplated by
the Year 2006 Senior Note Indenture and the registration rights agreement described
therein), as amended, restated, supplemented or otherwise modified from time to time.
1.2 Rules of Interpretation.
(a) The headings, subheadings and table of contents used herein or in any other Loan
Document are solely for convenience of reference and shall not constitute a part of any such
document or affect the meaning, construction or effect of any provision thereof.
(b) Except as otherwise expressly provided, references in any Loan Document to
articles, sections, paragraphs, clauses, annexes, appendices, exhibits and schedules are
references to articles, sections, paragraphs, clauses, annexes, appendices, exhibits and
schedules in or to such Loan Document.
(c) All definitions set forth herein or in any other Loan Document shall apply to the
singular as well as the plural form of such defined term, and all references to the
masculine gender shall include reference to the feminine or neuter gender, and vice versa,
as the context may require.
(d) When used herein or in any other Loan Document, words such as “hereunder”,
“hereto”, “hereof” and “herein” and other words of like import shall, unless the context
clearly indicates to the contrary, refer to the whole of the applicable document and not to
any particular article, section, subsection, paragraph or clause thereof.
(e) References to “including” means including without limiting the generality of any
description preceding such term, and such term shall not limit a general statement to
matters similar to those specifically mentioned.
(f) Except as otherwise expressly provided, all dates and times of day specified herein
shall refer to such dates and times at New York City.
(g) Whenever interest rates or fees are established in whole or in part by reference to
a numerical percentage expressed as “___%”, such arithmetic expression shall be interpreted
in accordance with the convention that 1% = 100 basis points.
(h) Each of the parties to the Loan Documents and their counsel have reviewed and
revised, or requested (or had the opportunity to request) revisions to, the Loan Documents,
and any rule of construction that ambiguities are to be resolved against the drafting party
shall be inapplicable in the construing and interpretation of the Loan Documents and all
exhibits, schedules and appendices thereto.
26
(i) Any reference to an officer of the Borrower or any other Person by reference to the
title of such officer shall be deemed to refer to each other officer of such Person, however
titled, exercising the same or substantially similar functions.
(j) All references to any agreement or document as amended, modified or supplemented,
or words of similar effect, shall mean such document or agreement, as the case may be, as
amended, modified or supplemented from time to time only as and to the extent permitted
therein and not prohibited by the Loan Documents.
(k) Whenever in this Agreement any of the parties hereto is referred to, such reference
shall be deemed to include the successors and permitted assigns of such party and all
covenants, provisions and agreements by or on behalf of the Borrower which are contained in
the Loan Documents shall inure to the benefit of the successors and permitted assigns of the
Administrative Agent, the Lenders, or any of them.
1.3 Accounting for Permitted Acquisitions. With respect to any Permitted Acquisition
consummated on or after the Closing Date and prior to the Revolving Credit Termination Date, the
following shall apply:
For each Four-Quarter Period that includes the date of a Permitted Acquisition,
Consolidated EBITDA and Consolidated Interest Expense shall include the results of
operations of the Person or assets so acquired, which amounts shall be determined on a
historical pro forma basis and which may include such adjustments as are permitted under
Regulation S-X of the Securities and Exchange Commission; provided, however,
Consolidated Interest Expense shall be adjusted on a historical pro forma basis to (i)
eliminate interest expense accrued during such period on any Indebtedness repaid in
connection with such Permitted Acquisition and (ii) include interest expense on any
Indebtedness (including Indebtedness hereunder) incurred, acquired or assumed in connection
with such Permitted Acquisition (“Incremental Debt”) calculated (x) as if all such
Incremental Debt had been incurred as of the first day of such Four-Quarter Period and (y)
at the following interest rates: (I) for all periods subsequent to the date of the Permitted
Acquisition and for Incremental Debt assumed or acquired in the Permitted Acquisition and in
effect prior to the date of Permitted Acquisition, at the actual rates of interest
applicable thereto, and (II) for all periods prior to the actual incurrence of such
Incremental Debt, equal to the rate of interest actually applicable to such Incremental
Debt hereunder or under other financing documents applicable thereto as at the end of
each affected Four-Quarter Period.
1.4 Accounting for Derivatives. In making any computation under Section 8.1,
all adjustments to such computation or amount resulting from the application of FASB 133 shall be
disregarded.
1.5 Accounting and Financial Determinations. Except as provided in Section
1.3, where the character or amount of any asset or liability or item of income or expense is
required to be determined, or any accounting computation is required to be made, for the purpose of
this Agreement, such determination or calculation shall, to the extent applicable, be made in
accordance with GAAP applied on a Consistent Basis except insofar as:
27
(a) the Borrower shall have elected (with the concurrence of its independent public
accountant and upon prior written notification to the Lenders) to adopt more recently
promulgated GAAP (which election shall continue to be effective for subsequent years); and
(b) the Administrative Agent and the Required Lenders shall have consented to such
election (it being understood that such consent may be conditioned upon the implementation
of such changes to Article VIII as are appropriate to reflect such adoption of more
recently promulgated GAAP and it being further understood that such consent shall be deemed
to have been given upon the implementation of such changes).
Upon a change in GAAP which becomes effective after the Closing Date which would have a
material effect on the Borrower’s consolidated financial statements and the assets and liabilities
reflected therein or otherwise affect the calculation or the application of the covenants contained
in Article VIII hereof, such change shall not be given effect for purposes hereof until
sixty (60) days from the otherwise effective date of such change. Prior to such effectiveness the
Administrative Agent, the Lenders and the Borrower shall in good faith negotiate to amend the
pertinent provisions of this Agreement to account for such change to the extent appropriate to
effect the substance thereof as of the Closing Date. If such an amendment is not entered into with
respect to any such change, such change shall not be given effect for purposes hereof. The
Borrower shall provide to the Administrative Agent and the Lenders, upon request, comfort from its
accountants that, without giving effect to such change in GAAP, upon their review of the
calculations set forth in the Compliance Certificate prepared on a Consistent Basis, nothing has
come to their attention that would lead them to believe the Borrower was not in compliance with the
financial covenants contained in this Agreement.
ARTICLE II
The Loans
2.1 Term Commitments. Subject to the terms and conditions hereof, each Term Lender severally agrees to make a
term loan (a “Term Loan”) to the Borrower on the First Amendment Effective Date in an
amount not to exceed the amount of the Term Commitment of such Lender. The Term Loans may from
time to time be Eurodollar Loans or Base Rate Loans, as determined by the Borrower and notified to
the Administrative Agent in accordance with Sections 2.2 and 2.12.
2.2 Procedure for Term Loan Borrowing. The Borrower shall give the Administrative
Agent irrevocable notice in the form of a borrowing notice (which notice shall be substantially in
the form of a Borrowing Notice for Revolving Credit Loans, mutatis mutandis, and
(1) for each Term Loan that is a Eurodollar Loan shall have been received by the Administrative
Agent prior to 12:00 Noon, New York City time, three (3) Business Days prior to the proposed
borrowing date and (2) for each Term Loan that is a Base Rate Loan shall have been received by the
Administrative Agent prior to 12:00 Noon, New York City time, one Business Day prior to the
proposed borrowing date) requesting that the Term Lenders make the Term Loans on the First
Amendment Effective Date and specifying the amount to be borrowed. Upon receipt of such notice the
Administrative Agent shall promptly notify each Term Lender thereof. Not later than
28
10:30 A.M.,
New York City time, on the First Amendment Effective Date each Term Lender shall, pursuant to the
terms and subject to the conditions of this Agreement, make available to the Administrative Agent
at the Principal Office an amount in immediately available funds equal to the Term Loan or Term
Loans to be made by such Lender. The Administrative Agent shall credit the account of the Borrower
on the books of such office of the Administrative Agent with the aggregate of the amounts made
available to the Administrative Agent by the Term Lenders in immediately available funds.
2.3 Repayment of Term Loans. The Term Loan of each Term Lender shall mature on the
Stated Termination Date in an amount equal to such Lender’s Term Percentage multiplied by the
amount of the Term Loan Outstandings.
2.4 Revolving Credit Commitments.
(a) Commitments. Subject to the terms and conditions of this Agreement, each
Revolving Credit Lender severally agrees to make Advances to the Borrower, from time to time from
the Closing Date until the Revolving Credit Termination Date, on a pro rata basis as to the total
borrowing requested by the Borrower under the Revolving Credit Facility on any day determined by
its Revolving Percentage up to but not exceeding the Revolving Credit Commitment of such Lender,
provided, however, that the Revolving Credit Lenders will not be required and shall have no
obligation to make any Advance (i) so long as not all of the conditions under Section 5.2
hereof have been fulfilled, (ii) so long as a Default or an Event of Default has occurred and is
continuing or (iii) if the Administrative Agent has accelerated the maturity of the Revolving
Credit Loans as a result of an Event of Default in accordance with Section 9.1 hereof;
provided further, however, that immediately after giving effect to each such Advance, the
principal amount of Outstanding Revolving Credit Obligations shall not exceed the Total
Revolving Credit Commitment. Within such limits, the Borrower may borrow, repay and reborrow
hereunder, on any Business Day, from the Closing Date until, but (as to borrowings and
reborrowings) not including, the Revolving Credit Termination Date; provided, however, that
(x) no Eurodollar Loan that is a Revolving Credit Loan shall be made which has an Interest Period
that extends beyond the Revolving Credit Termination Date and (y) each Revolving Credit Loan that
is a Eurodollar Loan may, subject to the provisions of Section 2.12, be repaid only on the
last day of the Interest Period with respect thereto unless the Borrower has paid any amounts due
pursuant to Section 4.5 hereof.
(b) Amounts. The aggregate unpaid principal amount of the Outstanding Revolving
Credit Obligations shall not exceed at any time an amount equal to the Total Revolving Credit
Commitment. Each Loan under the Revolving Credit Facility, other than a Swing Line Loan or a Base
Rate Refunding Loan, and each Conversion thereof under Section 2.12 shall be in a principal
amount of (i) at least $10,000,000, and, if greater than $10,000,000, an integral multiple of
$1,000,000, in the case of Eurodollar Loans, or (ii) at least $5,000,000 and, if greater than
$5,000,000, an integral multiple of $1,000,000, in the case of Base Rate Loans.
(c) Advances and Rate Selection. (i) An Authorized Representative shall give the
Administrative Agent (1) at least three (3) Business Days’ irrevocable telephonic notice of each
Revolving Credit Loan that is a Eurodollar Loan (whether representing an additional
29
borrowing
hereunder or the Conversion of borrowing hereunder from Base Rate Loans or other Eurodollar Loans
to Eurodollar Loans) prior to 12:00 Noon; and (2) irrevocable telephonic notice of each Revolving
Credit Loan that is a Base Rate Loan (other than Base Rate Refunding Loans to the extent the same
are effective without notice pursuant to Section 2.4(c)(iv)) representing an additional
borrowing hereunder prior to 12:00 noon on the day of such proposed Base Rate Loan. Each such
borrowing notice, which shall be effective upon receipt by the Administrative Agent, shall specify
the amount of the borrowing, the Type of Loan, the date of borrowing and, if a Eurodollar Loan, the
Interest Period to be used in the computation of interest. The Authorized Representative shall
provide the Administrative Agent written confirmation of each such telephonic notice on the same
day by telefacsimile transmission in the form of a Borrowing Notice, for additional Advances, or in
the form attached hereto as Exhibit F as to selection or Conversion of interest rates as to
outstanding Revolving Credit Loans, in each case with appropriate insertions, but failure to
provide such confirmation shall not affect the validity of such telephonic notice. The duration of
the initial Interest Period for each Revolving Credit Loan that is a Eurodollar Loan shall be as
specified in the initial Borrowing Notice. The Borrower shall have the option to elect the
duration of subsequent Interest Periods and to Convert the Revolving Credit Loans (other than Swing
Line Loans) in accordance with Section 2.12 hereof. If the Administrative Agent does not
receive a notice of election of duration of an Interest Period or to Convert by the time prescribed
hereby and by Section 2.12 hereof, the Borrower shall be deemed to have elected as to any
Revolving Credit Loan, to Convert such Loan to (or Continue such Loan as) a Base Rate Loan bearing
interest at the Base Rate until the Borrower notifies the Administrative Agent in accordance with
this Section and Section 2.12.
(ii) Notice of receipt of each Borrowing Notice shall be provided by the Administrative Agent
to each Revolving Credit Lender by telefacsimile or telephonic notice with
reasonable promptness on the same day as Administrative Agent’s receipt of such Borrowing
Notice.
(iii) Not later than 3:00 P.M. on the date specified for each Advance under the Revolving
Credit Facility, each Revolving Credit Lender shall, pursuant to the terms and subject to the
conditions of this Agreement, make the amount of the Loan or Loans to be made by it on such day
available to the Administrative Agent, by depositing or transferring the proceeds thereof in
immediately available funds at the Principal Office. The amount so received by the Administrative
Agent shall, subject to the terms and conditions of this Agreement, be made available to the
Borrower by delivery of the proceeds thereof as shall be directed in the applicable Borrowing
Notice by the Authorized Representative.
(iv) If a drawing is made under any Letter of Credit, the Borrower shall reimburse the
Issuing Bank for such drawing by paying to the Administrative Agent an amount equal to such drawing
not later than 2:00 P.M. on (A) the Business Day (which may be the date such drawing is made) that
the Borrower receives notice of such drawing, if the Borrower shall have received such notice prior
to 10:00 a.m., or (B) the Business Day immediately following the day that the Borrower receives
such notice, if such notice is received by the Borrower on a day other than a Business Day or after
10:00 a.m. on a Business Day. Notwithstanding the foregoing, if a drawing is made under any Letter
of Credit, such drawing is honored by the Issuing Bank thereunder prior to the Revolving Credit
Termination Date, and the Borrower shall not immediately fully reimburse such Issuing Bank in
respect of such drawing, (y) provided that the
30
conditions to making a Revolving Credit Loan as
herein provided shall then be satisfied, the Reimbursement Obligation arising from such drawing
shall be paid to such Issuing Bank by the Administrative Agent without the requirement of notice to
or from the Borrower from immediately available funds which shall be advanced as a Base Rate
Refunding Loan by each Lender under the Revolving Credit Facility in an amount determined with
reference to such Revolving Credit Lender’s Revolving Percentage of such Reimbursement Obligation,
and (z) if the conditions to making a Revolving Credit Loan as herein provided shall not then be
satisfied, each of the Revolving Credit Lenders shall fund by payment to the Administrative Agent
(for the benefit of the Issuing Bank) in immediately available funds the purchase from such Issuing
Bank of their respective Participations in the related Reimbursement Obligation based on their
respective Revolving Percentages of the Total Letter of Credit Commitment. If a drawing is
presented under any Letter of Credit in accordance with the terms thereof and the Borrower shall
not immediately reimburse the Issuing Bank thereunder in respect thereof as provided above, then
notice of such drawing shall be provided promptly by such Issuing Bank to the Administrative Agent
and the Administrative Agent shall provide notice to each Revolving Credit Lender by telephone or
telefacsimile transmission. If notice to the Revolving Credit Lenders of a drawing under any
Letter of Credit is given by the Administrative Agent at or before 2:00 P.M. on any Business Day,
each Revolving Credit Lender shall, pursuant to the conditions specified in this Section
2.4(c)(iv), either make a Base Rate Refunding Loan or fund the purchase of its Participation in
the amount of such Lender’s Revolving Percentage of such drawing or payment and shall pay such
amount to the Administrative Agent for the account of the Issuing Bank at the Principal Office in
Dollars and in immediately available funds before 2:30 P.M. on the same Business Day. If notice to
the Revolving Credit Lenders of a drawing under a Letter of Credit is given by the Administrative
Agent after 2:00 P.M. on any Business Day, each Revolving Credit Lender shall, pursuant to the
conditions specified in this Section
2.4(c)(iv), either make a Base Rate Refunding Loan or fund the purchase of its
Participation in the amount of such Lender’s Revolving Percentage of such drawing and shall pay
such amount to the Administrative Agent for the account of the Issuing Bank at the Principal Office
in Dollars and in immediately available funds before 2:00 P.M. on the next following Business Day.
Any such Base Rate Refunding Loans shall be advanced as, and shall continue as, a Base Rate Loan
unless and until the Borrower Converts such Base Rate Loan in accordance with the terms of
Section 2.12.
2.5 Competitive Bid Loans.
(a) In addition to Revolving Credit Loans, at any time prior to the Revolving Credit
Termination Date and provided no Default or Event of Default exists hereunder, the Borrower may, as
set forth in this Section 2.5, request the Revolving Credit Lenders to make offers to make
Competitive Bid Loans to the Borrower in Dollars. The Revolving Credit Lenders may, but shall have
no obligation to, make such offers and the Borrower may, but shall have no obligation to, accept
any such offers in the manner set forth in this Section 2.5. There may be no more than ten
(10) Interest Periods, and no more than one (1) one-week Interest Periods, for all Revolving Credit
Loans and Competitive Bid Loans outstanding at the same time (for which purpose Interest Periods
for each Eurodollar Revolving Credit Loan and each Competitive Bid Loan shall be deemed to be
different Interest Periods even if they are coterminous). The aggregate principal
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amount of all
Outstanding Revolving Credit Obligations shall not exceed the Total Revolving Credit Commitment at
any time. The aggregate principal amount of all outstanding Competitive Bid Loans shall not exceed
one hundred percent (100%) of the Total Revolving Credit Commitment at any time.
(b) When the Borrower wishes to request offers to make Competitive Bid Loans, it shall give
the Administrative Agent and the Revolving Credit Lenders notice (a “Competitive Bid Quote
Request”) to be received no later than 12:00 Noon on (A) the fourth Business Day prior to the date
of borrowing proposed therein, in the case of a Competitive Bid Quote Request for Competitive Bid
Loans at the Eurodollar Competitive Rate or (B) the Business Day prior to the date of borrowing
proposed therein, in the case of a Competitive Bid Quote Request for Competitive Bid Loans at the
Absolute Rate (or, in any such case, such other time and date as the Borrower and the
Administrative Agent may agree). The Borrower may request offers to make Competitive Bid Loans for
up to three (3) different Interest Periods in a single notice; provided that the request
for each separate Interest Period shall be deemed to be a separate Competitive Bid Quote Request
for a separate borrowing (a “Competitive Bid Borrowing”) and there shall not be outstanding at any
one time more than four (4) Competitive Bid Borrowings. Each such Competitive Bid Quote Request
shall be substantially in the form of Exhibit G attached hereto and shall specify as to
each Competitive Bid Borrowing:
(i) the proposed date of such borrowing, which shall be a Business Day;
(ii) the aggregate amount of such Competitive Bid Borrowing, which shall be at least
$10,000,000 (or in increments of $1,000,000 in excess thereof) but shall not cause the
limits specified in Section 2.5(a) hereof to be violated;
(iii) the duration of the Interest Period applicable thereto;
(iv) whether the Competitive Bid Quote Request for a particular Interest Period is
seeking quotes for Competitive Bid Loans at the Absolute Rate or the Eurodollar Competitive
Rate;
(v) whether the Borrower shall have the right to prepay a requested Competitive Bid
Loan; and
(vi) the date on which the Competitive Bid Quotes are to be submitted if it is before
the proposed date of borrowing (the date on which such Competitive Bid Quotes are to be
submitted is called the “Quotation Date”).
Except as otherwise provided in this Section 2.5(b), no more than two (2) Competitive Bid
Quote Requests shall be given within five (5) Business Days (or such other number of days as the
Borrower and the Administrative Agent may agree) of any other Competitive Bid Quote Request.
(c) (i) Each Revolving Credit Lender may submit one or more Competitive Bid Quotes, each
containing an offer to make a Competitive Bid Loan in response to any Competitive Bid Quote
Request; provided that, if the Borrower’s request under Section 2.5(b) hereof specified
more than one Interest Period, such Lender may make a single submission containing one or more
Competitive Bid Quotes for each such Interest Period. Each Competitive Bid Quote must be submitted
to the Borrower not later than 9:30 A.M. on (A) the
32
third Business Day prior to the proposed date
of borrowing, in the case of a Competitive Bid Quote Request for Competitive Bid Loans at the
Eurodollar Competitive Rate or (B) the Quotation Date, in the case of a Competitive Bid Quote
Request for Competitive Bid Loans at the Absolute Rate (or, in any such case, such other time and
date as the Borrower and the Administrative Agent may agree) provided that if JPMorgan
Chase Bank is receiving quotes as provided in Section 2.5(g), any Competitive Bid Quote may
be submitted by JPMorgan Chase Bank (or its applicable Lending Office) only if JPMorgan Chase Bank
(or such applicable Lending Office) notifies the Borrower of the terms of the offer contained
therein not later than 9:15 A.M. on the Quotation Date. Any Competitive Bid Quote so made shall be
irrevocable except with the consent of the Administrative Agent given on the instructions of the
Borrower.
(ii) Each Competitive Bid Quote shall be substantially in the form of Exhibit H
attached hereto and shall specify:
(A) the proposed date of borrowing and the Interest Period therefor;
(B) the principal amount of the Competitive Bid Loan for which each such offer
is being made, which principal amount shall be at least $5,000,000 (or in increments
of $1,000,000 in excess thereof); provided that the aggregate principal
amount of all Competitive Bid Loans for which a Lender submits Competitive Bid
Quotes may not exceed the principal amount of the Competitive Bid Borrowing for a
particular Interest Period for which offers were requested;
(C) in the case of a Competitive Bid Quote for Competitive Bid Loans at an
Absolute Rate, the rate of interest per annum (rounded upwards, if necessary, to the
nearest 1/10,000th of 1%) offered for each such Competitive Bid Loan (the “Absolute
Rate”);
(D) in the case of a Competitive Bid Quote for Competitive Bid Loans at the
Eurodollar Competitive Rate, the positive or negative margin to be added to or
deducted from the Interbank Offered Rate; and
(E) the identity of the quoting Lender.
Unless otherwise agreed by the Administrative Agent and the Borrower, no Competitive Bid Quote
shall contain qualifying, conditional or similar language or propose terms other than or in
addition to those set forth in the applicable Competitive Bid Quote Request and, in particular, no
Competitive Bid Quote may be conditioned upon acceptance by the Borrower of all (or some specified
minimum) of the principal amount of the Competitive Bid Loan for which such Competitive Bid Quote
is being made. Any subsequent Competitive Bid Quote submitted by a Revolving Credit Lender that
amends, modifies or is otherwise inconsistent with a previous Competitive Bid Quote submitted by
such Lender with respect to the same Competitive Bid Quote Request shall be disregarded by the
Borrower unless such subsequent Competitive Bid Quote is submitted solely to correct a manifest
error in such former Competitive Bid Quote.
(d) The Borrower shall as promptly as practicable after the Competitive Bid Quote is submitted
(but in any event not later than 12:00 Noon on (A) in the case of a Competitive Bid Loan at an
Absolute Rate, the Quotation Date (or such other time and date as
33
the Borrower and the
Administrative Agent may agree) or (B) in the case of a Competitive Bid Loan at a Eurodollar
Competitive Rate, the third Business Day prior to the proposed date of borrowing) notify the
Administrative Agent and Revolving Credit Lenders of (x) the aggregate principal amount of the
Competitive Bid Borrowing for which Competitive Bid Quotes have been received as well as the ranges
of bids submitted for each Interest Period requested, (y) the respective principal amounts and
Absolute Rates or Eurodollar Competitive Rates, as the case may be, so offered by each Revolving
Credit Lender (identifying the Lender that made each Competitive Bid Quote), and (z) its acceptance
or nonacceptance of the Competitive Bid Quotes. In the case of acceptance, such notice shall
specify the aggregate principal amount of offers for each Interest Period that are accepted. The
Borrower may accept any Competitive Bid Quote in whole or in part (provided that any
Competitive Bid Quote accepted in part shall be at least $5,000,000 or in increments of $1,000,000
in excess thereof); provided that:
(i) the aggregate principal amount of each Competitive Bid Borrowing may not exceed the
applicable amount set forth in the related Competitive Bid Quote Request;
(ii) the aggregate principal amount of each Competitive Bid Borrowing shall be at least
$5,000,000 (or an increment of $1,000,000 in excess thereof) but shall not cause the limits
specified in Section 2.5(a) hereof to be violated;
(iii) except as provided below, acceptance of Competitive Bid Quotes for any Interest
Period may be made only in ascending order of Absolute Rates or Eurodollar Competitive
Rates, as the case may be, beginning with the lowest rate so offered; and
(iv) the Borrower may not accept any Competitive Bid Quote where such Competitive Bid
Quote fails to comply with Section 2.5(c)(ii) hereof or otherwise fails to comply
with the requirements of this Agreement (including, without limitation, Section
2.5(a) hereof).
Any of the conditions above notwithstanding, the Borrower may, in its sole discretion, accept a
Competitive Bid Quote that does not contain the lowest Absolute Rate or Eurodollar Competitive
Rates, as the case may be, where acceptance of the Competitive Bid Quote containing the lowest
Absolute Rate or Eurodollar Competitive Rate, as the case may be, would be less favorable to the
Borrower or would cause the principal amount of Outstanding Revolving Credit Obligations to exceed
the Total Revolving Credit Commitment.
If Competitive Bid Quotes are made by two or more Revolving Credit Lenders with the same
Absolute Rates or Eurodollar Competitive Rates, as the case may be, for a greater aggregate
principal amount than the amount in respect of which Competitive Bid Quotes are accepted for the
related Interest Period after the acceptance of all Competitive Bid Quotes, if any, of all lower
Absolute Rates or Eurodollar Competitive Rates, as the case may be, offered by any Revolving Credit
Lender for such related Interest Period, the principal amount of Competitive Bid Loans in respect
of which such Competitive Bid Quotes are accepted shall be allocated by the Borrower among such
Lenders as nearly as possible (in amounts of at least $1,000,000 or in increments of $100,000 in
excess thereof) in proportion to the aggregate principal amount of such Competitive Bid Quotes.
Determinations by the Borrower of the
34
amounts of Competitive Bid Loans and the lowest bid after
adjustment as provided in Section 2.5(d)(iii) shall be conclusive in the absence of
manifest error.
(e) Any Revolving Credit Lender whose offer to make any Competitive Bid Loan has been accepted
shall, not later than 1:00 P.M. on the date specified for the making of such Loan, make the amount
of such Loan available to the Borrower as shall be directed by the Authorized Representative in
Dollars and in immediately available funds.
(f) From time to time, the Borrower shall furnish such information to the Administrative Agent
as the Administrative Agent may request relating to the making of Competitive Bid Loans, including
the amounts, interest rates, dates of borrowings and maturities thereof.
(g) The Borrower may request the Administrative Agent to receive the Competitive Bid Quotes,
in which event the Administrative Agent shall (A) in the case of a Competitive Bid Loan at the
Absolute Rate, as promptly as practicable after the Competitive Bid Quote is submitted (but in no
event later than 10:00 A.M. on the Quotation Date) or (B) in the case of a Competitive Bid Loan at
the Eurodollar Competitive Rate, by 10:00 A.M. on the date a Competitive Quote is submitted, notify
the Borrower of the terms of any Competitive Bid Quote submitted by a Revolving Credit Lender that
is in accordance with Section 2.5(c) hereof. The Administrative Agent’s notice to the
Borrower shall specify (A) the aggregate principal amount
of the Competitive Bid Borrowing for which Competitive Bid Quotes have been received and (B)
the respective principal amounts and Absolute Rates or Eurodollar Competitive Rate, as the case may
be, offered by each Revolving Credit Lender (identifying the Lender that made each Competitive Bid
Quote). Not later than 12:00 Noon on (A) the third Business Day prior to the proposed date of
borrowing, in the case of Competitive Bid Loans at the Eurodollar Competitive Rate or (B) the
Quotation Date (or, in any such case, such other time and date as the Borrower and the
Administrative Agent may agree), the Borrower shall notify the Administrative Agent of their
acceptance or nonacceptance of the Competitive Bid Quotes so notified to it (and the failure of the
Borrower to give such notice by such time shall constitute nonacceptance) and the Administrative
Agent shall promptly notify each affected Lender. Together with each notice of a request for
Competitive Bid Quotes which the Borrower requires the Administrative Agent to issue pursuant to
this paragraph (g), the Borrower shall pay to the Administrative Agent for the account of the
Administrative Agent a bid administration fee of $1,500.00.
2.6 Payment of Interest. (a) The Borrower shall pay interest (i) to the
Administrative Agent at the Principal Office for the account of each Lender on the outstanding and
unpaid principal amount of each Revolving Credit Loan and each Term Loan made by such Lender for
the period commencing on the date of such Loan until such Loan shall be due at the Eurodollar Rate
or the Base Rate, as elected or deemed elected by the Borrower or otherwise applicable to such Loan
as herein provided, (ii) to each Revolving Credit Lender making a Competitive Bid Loan at its
Applicable Lending Office, at the applicable Absolute Rate or Eurodollar Competitive Rate, as the
case may be, and (iii) to the Administrative Agent in the case of each Swing Line Loan, at the Base
Rate; provided, however, that if any amount shall not be paid when due (at
maturity, by acceleration or otherwise), all amounts outstanding hereunder shall bear interest
thereafter at a fluctuating interest rate per annum equal to the Default Rate, or (in each
35
case)
the maximum rate permitted by applicable law, whichever is lower, from the date such amount was due
and payable until the date such amount is paid in full.
(a) Interest on the outstanding principal balance of each Loan shall be computed on the basis
of (x) in the case of Loans, other than Loans bearing interest based on the Prime Rate, a year of
360 days and calculated for the actual number of days elapsed and (y) in the case of Loans bearing
interest based on the Prime Rate, a year of 365-366 days and calculated for the actual number of
days elapsed. Interest on the outstanding principal balance of each Loan shall be paid (a)
quarterly in arrears, such payment to be made not later than the third (3rd) Business Day of each
April, July, October and January commencing on the third (3rd) Business Day of October 2005, on
each Base Rate Loan, (b) on the last day of the applicable Interest Period for each Eurodollar Loan
and Competitive Bid Loan, but in no event less frequently than at the end of each three month
period and (c) upon payment in full of the principal amount of such Loan at the Revolving Credit
Termination Date.
2.7 Payment of Principal. The principal amount of the Revolving Credit Outstandings
and all Swing Line Outstandings shall be due and payable to the Administrative Agent for the
benefit of each applicable Lender in full on the Revolving Credit Termination Date, or earlier as
herein
expressly provided. The principal amount of all Competitive Bid Loans shall be due and
payable to the Lender making such Competitive Bid Loan in full on the last day of the Interest
Period therefor, or earlier as herein expressly provided. The principal amount of all Term Loans
shall be due and payable to each Term Lender making such Term Loan as provided in Section
2.3, or earlier as herein expressly provided. Prepayments of Term Loans may not be reborrowed.
The principal amount of Eurodollar Loans may only be prepaid at the end of the applicable Interest
Period, unless the Borrower shall pay to the applicable Lenders the amounts, if any, required under
Section 4.5. The principal amount of Competitive Bid Loans may only be prepaid at the end
of the applicable Interest Period, unless (i) the Borrower shall have retained in the Competitive
Bid Quote Request with respect to such Competitive Bid Loans the right of prepayment, and (ii) the
Borrower shall have paid to the Lender making such Competitive Bid Loans which bear interest at a
Eurodollar Competitive Rate or to the Administrative Agent, as applicable, the amounts, if any,
required under Section 4.5. The Borrower shall furnish the Administrative Agent telephonic
notice of its intention to make a principal payment (including Competitive Bid Loans) prior to
12:00 noon on the date of such payment. All payments of principal on Loans other than Competitive
Bid Loans and Swing Line Loans shall be in the amount of (i) $10,000,000, or such greater amount
which is an integral multiple of $1,000,000, in the case of Eurodollar Loans, or (ii) $5,000,000,
or such greater amount which is an integral multiple of $1,000,000, in the case of Base Rate Loans.
Optional prepayments of Term Loans shall be applied to the outstanding balance of the Term Loans.
2.8 Non-Conforming Payments. (a) Each payment of principal (including any
prepayment) and payment of interest (other than principal and interest on Competitive Bid Loans
which shall be paid to the Lender making such Loans) shall be made to the Administrative Agent at
the Principal Office, for the account of each applicable Lender’s Applicable Lending Office, in
Dollars and in immediately available funds before 2:00 P.M. on the date such payment is due. The
Administrative Agent may, but shall not be obligated to, debit the amount of any such payment which
is not made by such time to any ordinary deposit account, if any, of the Borrower with the
Administrative Agent.
36
(b) The Administrative Agent shall deem any payment by or on behalf of the Borrower hereunder
that is not made both (a) in Dollars and in immediately available funds and (b) prior to 2:00 P.M.
on the date payment is due to be a non-conforming payment. Any such payment shall not be deemed to
be received by the Administrative Agent until the time such funds become available funds. The
Administrative Agent shall give prompt telephonic notice to the Authorized Representative and each
of the applicable Lenders (confirmed in writing) if any payment is non-conforming. Interest shall
continue to accrue on any principal as to which a non-conforming payment is made until such funds
become available funds (but in no event less than the period from the date of such payment to the
next succeeding Business Day) at the applicable rate of interest per annum specified in Section
2.6(a) until the date such amount is paid in Dollars and in immediately available funds.
(c) In the event that any payment hereunder becomes due and payable on a day other than a
Business Day, then such due date shall be extended to the next succeeding
Business Day; provided that interest shall continue to accrue during the period of any
such extension.
2.9 Pro Rata Payments. Except as otherwise provided herein, (a) each payment and
prepayment on account of the principal of and interest on the Revolving Credit Loans and the fee
described in Section 2.13(a) hereof shall be made to the Administrative Agent in the
aggregate amount payable to the Revolving Credit Lenders for the account of the Revolving Credit
Lenders pro rata based on their Revolving Percentages, (b) each payment and prepayment on account
of the principal of and interest on the Term Loans shall be made to the Administrative Agent in the
aggregate amount payable to the Term Lenders for the account of the Term Lenders pro rata based on
their Term Percentages and each principal prepayment of the Term Loans shall be applied to reduce
the Term Loans pro rata based upon the respective then remaining principal amounts
thereof, (c) each payment of principal and interest on the Competitive Bid Loans shall be made to
(i) the Administrative Agent for the account of the respective Lender making such Competitive Bid
Loan if the Borrower has elected that the Administrative Agent act under Section 2.5(g)
hereof and (ii) otherwise directly to the Lender making such Competitive Bid Loan, (d) each payment
of principal and interest on Swing Line Loans shall be made to the Administrative Agent for the
account of JPMorgan Chase Bank, (e) all payments to be made by the Borrower for the account of each
of the Lenders on account of principal, interest and fees, shall be made without set-off or
counterclaim except as provided in Section 4.6, and (f) the Administrative Agent will
distribute such payments when received to the Lenders as provided for herein and subject to
Section 4.6.
2.10 Reductions and Prepayment. (a) Reductions. The Borrower shall, by
notice from an Authorized Representative, have the right from time to time (but not more frequently
than twice during each Fiscal Year), upon not less than three (3) Business Days irrevocable written
notice to the Administrative Agent to reduce the Total Revolving Credit Commitment without premium
or penalty. The Administrative Agent shall give each Revolving Credit Lender, within one (1)
Business Day of receipt of such notice from the Borrower, telephonic notice (confirmed in writing)
of such reduction. Each such reduction shall be in the aggregate amount of $10,000,000 or such
greater amount which is in an integral multiple of $1,000,000, and shall permanently reduce the
Total Revolving Credit Commitment of the Revolving Credit Lenders pro rata. No such reduction
shall be permitted that results in the payment of any Eurodollar Loan
37
other than on the last day of
the Interest Period of such Loan unless such prepayment is accompanied by amounts due, if any,
under Section 4.5. Each reduction of the Total Revolving Credit Commitment shall be
accompanied by payment of the Revolving Credit Loans to the extent that the aggregate principal
amount of Outstanding Revolving Credit Obligations exceeds the Total Revolving Credit Commitment
after giving effect to such reduction, together with accrued and unpaid interest on the amounts
prepaid. In no event shall the Borrower be entitled to reduce the Total Revolving Credit
Commitment if, as a result of and after giving effect to such reduction, the Outstanding Revolving
Credit Obligations exceed the Total Revolving Credit Commitment.
(b) Optional Prepayments. The Borrower may at any time and from time to time, subject
to Section 2.7, prepay the Loans, in whole or in part, without premium or penalty, upon
irrevocable prior notice which notice may be given by telephone (to be promptly confirmed in
writing, including by facsimile) delivered to the Administrative Agent no later than 12:00 Noon,
New York City time, three Business Days prior thereto in the case of Eurodollar Rate Loans and no
later than 12:00 Noon, New York City time, one Business Day prior thereto in the case of Base Rate
Loans, which notice shall specify the date and amount of prepayment and whether the prepayment is
of Eurodollar Rate Loans or Base Rate Loans. Upon receipt of any such notice the Administrative
Agent shall promptly notify each relevant Lender thereof. If any such notice is given, the amount
specified in such notice shall be due and payable on the date specified therein, together with
(except in the case of Revolving Credit Loans that are Base Rate Loans and Swingline Loans) accrued
interest to such date on the amount prepaid.
2.11 Decrease in Amounts. The amount of the Total Revolving Credit Commitment which
shall be available to the Borrower shall be reduced by the aggregate amount of all Swing Line
Outstandings, all Outstanding Letters of Credit and all outstanding Competitive Bid Loans.
2.12 Conversions and Elections of Subsequent Interest Periods. Subject to the
limitations set forth below and in Article IV hereof, the Borrower may:
(a) upon notice to the Administrative Agent on or before 12:00 noon on any Business Day
Convert all or a part of Eurodollar Loans to Base Rate Loans on the last day of the Interest
Period for such Eurodollar Loans; and
(b) provided that no Default or Event of Default shall have occurred and be continuing
and on three (3) Business Days’ notice to the Administrative Agent on or before 12:00 noon:
(i) elect a subsequent Interest Period for all or a portion of Eurodollar Loans
to begin on the last day of the current Interest Period for such Eurodollar Loans;
or
(ii) Convert Base Rate Loans (other than Swing Line Loans) to Eurodollar Loans
on any Business Day.
Notice of any such elections or Conversions shall specify the effective date of such election
or Conversion and, with respect to Eurodollar Loans, the Interest Period to be applicable to the
Loan as Continued or Converted. Each election and Conversion pursuant to this Section
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2.12
shall be subject to the limitations on Eurodollar Loans set forth in the definition of “Interest
Period” herein and in Article IV hereof. All such Continuations or Conversions of Loans
shall be effected pro rata based on the Revolving Percentages or Term Percentages of the applicable
Lenders, as the case may be.
2.13 Fees. (a) Facility Fee. For the period beginning on the Closing Date and ending on the
Revolving Credit Termination Date (or such earlier date on which the Revolving Credit Facility has
terminated), the Borrower agrees to pay to the Administrative Agent, for the benefit of each
Revolving Credit Lender based on such Lender’s Revolving Credit Commitment, the quarterly portion
of the Applicable Facility Fee for such Lender. Such payments of fees provided for in this
Section 2.13(a) shall be payable quarterly in arrears, such payments to be made not later
than the third (3rd) Business Day of each April, July, October and January beginning on the third
(3rd) Business Day of October 2005 to and on the Revolving Credit Termination Date (or such earlier
date on which the Revolving Credit Facility has terminated). Notwithstanding the foregoing, so
long as any Lender fails to make available any portion of its Revolving Credit Commitment when
requested, such Lender shall not be entitled to receive payment of its pro rata share of such fee
until such Lender shall make available such portion. Such fee shall be calculated on the basis of
a year of 360 days for the actual number of days elapsed.
(b) Utilization Fee. For the period beginning on the Closing Date and ending on the
later of (i) the Revolving Credit Termination Date (or such earlier date on which the Revolving
Credit Facility has terminated) and (ii) the date on which no Revolving Credit Loans, Swing Line
Loans, Competitive Bid Loans or Letters of Credit (other than Letters of Credit (“Covered Letters
of Credit”) that have been cash collateralized in an amount of at least 105% of the face amount
thereof or covered by a “back-to-back” letter of credit, in each case in a manner reasonably
satisfactory to the Administrative Agent) remain outstanding, the Borrower agrees to pay to the
Administrative Agent, for the benefit of each Revolving Credit Lender based on such Lender’s
Revolving Credit Commitment, a utilization fee for each day Utilization is greater than 50%. The
utilization fee for any day shall be an amount equal to 0.125% per annum times the sum of the
actual outstanding principal balance of each Lender’s Revolving Credit Loans on such day and such
Lender’s participating interest in the then outstanding Swing Line Loans and Letters of Credit.
Such payments of fees provided for in this Section 2.13(b) shall be payable quarterly in
arrears, such payments to be made not later than the third (3rd) Business Day of each April, July,
October and January beginning on the third (3rd) Business Day of October 2005 to and on the later
of (i) the Revolving Credit Termination Date (or such earlier date on which the Revolving Credit
Revolving Credit Facility has terminated) and (ii) the date on which no Revolving Credit Loans,
Swing Line Loans, Competitive Bid Loans or Letters of Credit (other than Covered Letters of Credit)
remain outstanding. For the purposes hereof, “Utilization” means, for any day, a
percentage equal to the actual aggregate principal amount of Loans (other than Term Loans) under
this Agreement outstanding during each day, divided by the aggregate Revolving Credit Commitments
as of the end of such day. If any Revolving Credit Loans, Swing Line Loans, Competitive Bid Loans
or Letters of Credit remain outstanding after the Revolving Credit Commitments have been
terminated, Utilization shall be determined based on the aggregate Revolving Credit Commitments
immediately prior to such termination.
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(c) Agent Fees. The Borrower agrees to pay to the Administrative Agent, for the
Administrative Agent’s individual account, an annual Administrative Agent’s fee to be payable in
advance and annually thereafter on the anniversary of the Closing Date such amounts as agreed to by
the Administrative Agent and the Borrower in writing.
2.14 Deficiency Advances; Failure to Purchase Participations. No Lender shall be responsible for any default of any other Lender in respect of such other
Lender’s obligation to make any Loan or Advance hereunder nor shall the Revolving Credit Commitment
or Term Commitment of any Lender hereunder be increased as a result of such default of any other
Lender. Without limiting the generality of the foregoing or the provisions of Section
2.15, in the event any Lender shall fail to advance funds to the Borrower as herein provided,
the Administrative Agent may in its discretion, but shall not be obligated to, advance to the
Borrower all or any portion of such amount or amounts (each, a “deficiency advance”) and shall
thereafter be entitled to payments of principal of and interest on such deficiency advance in the
same manner and at the same interest rate or rates to which such other Lender would have been
entitled had it made such Advance; provided that, (i) such defaulting Lender shall not be entitled
to receive payments of principal, interest or fees with respect to such deficiency advance until
such deficiency advance (together with interest thereon as provided in clause (ii)) shall be paid
by such Lender and (ii) upon payment to the Administrative Agent from such other Lender of the
entire outstanding amount of each such deficiency advance, together with accrued and unpaid
interest thereon, from the most recent date or dates interest was paid to the Administrative Agent
by the Borrower on each Loan comprising the deficiency advance at the Federal Funds Rate, then such
payment shall be credited in full payment of such deficiency advance and the Borrower shall be
deemed to have borrowed the amount of such deficiency advance from such other Lender as of the most
recent date or dates, as the case may be, upon which any payments of interest were made by the
Borrower thereon.
2.15 Intraday Funding. Without limiting the provisions of Section 2.14,
unless the Borrower or any Lender has notified the Administrative Agent not later than 12:00 Noon
of the Business Day before the date any payment (including in the case of Lenders any Advance) to
be made by it is due, that it does not intend to remit such payment, the Administrative Agent may,
in its discretion, assume that Borrower or each Lender, as the case may be, has timely remitted
such payment in the manner required hereunder and may, in its discretion and in reliance thereon,
make available such payment (or portion thereof) to the Person entitled thereto as otherwise
provided herein. If such payment was not in fact remitted to the Administrative Agent in the
manner required hereunder, then:
(i) if Borrower failed to make such payment, each applicable Lender shall forthwith on
demand repay to the Administrative Agent the amount of such assumed payment made available
to such Lender, together with interest thereon in respect of each day from and including the
date such amount was made available by the Administrative Agent to such Lender to the date
such amount is repaid to the Administrative Agent at the Federal Funds Rate; and
(ii) if any Lender failed to make such payment, the Administrative Agent shall be
entitled to recover such corresponding amount forthwith upon the Administrative Agent’s
demand therefor, the Administrative Agent promptly shall notify the Borrower,
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and the
Borrower shall promptly pay such corresponding amount to the Administrative Agent in
immediately available funds upon receipt of such demand. The Administrative Agent also
shall be entitled to recover interest on such corresponding amount in respect of each day
from the date such corresponding amount was made available by the
Administrative Agent to the Borrower to the date such corresponding amount is recovered
by the Administrative Agent, (A) from such Lender at a rate per annum equal to the daily
Federal Funds Rate or (B) from the Borrower, at a rate per annum equal to the interest rate
applicable to the Loan which includes such corresponding amount. Until the Administrative
Agent shall recover such corresponding amount together with interest thereon, such
corresponding amount shall constitute a deficiency advance within the meaning of Section
2.14. Nothing herein shall be deemed to relieve any Lender from its obligation to
fulfill its commitments hereunder or to prejudice any rights which the Administrative Agent
or the Borrower may have against any Lender as a result of any default by such Lender
hereunder.
2.16 Use of Proceeds. The proceeds of the Loans made pursuant to the Revolving Credit
Facility, the Competitive Bid Facility, the Swing Line and the Letters of Credit issued pursuant to
the Letter of Credit Facility shall be used by the Borrower and its Subsidiaries to finance a
portion of the Transaction and to repay indebtedness, finance acquisitions and for working capital,
capital expenditures, share repurchases and other general corporate purposes of the Borrower and
its Subsidiaries. The proceeds of the Term Loans shall be used to finance a portion of the
Transaction and to pay related fees and expenses.
2.17 Swing Line. (a) Notwithstanding any other provision of this Agreement to the
contrary, in order to administer the Revolving Credit Facility in an efficient manner and to
minimize the transfer of funds between the Administrative Agent and the Revolving Credit Lenders,
JPMorgan Chase Bank, in its individual capacity and not as Administrative Agent, and subject to the
provisions of Section 2.17(c), shall make available Swing Line Loans to the Borrower prior
to the Revolving Credit Termination Date. JPMorgan Chase Bank shall not make any Swing Line Loan
pursuant hereto (i) if to the actual knowledge of JPMorgan Chase Bank the Borrower is not in
compliance with all the conditions to the making of Loans set forth in this Agreement, (ii) if
after giving effect to such Swing Line Loan, the Swing Line Outstandings exceed $25,000,000, or
(iii) if after giving effect to such Swing Line Loan, the principal amount of Outstanding Revolving
Credit Obligations exceeds the Total Revolving Credit Commitment. Swing Line Loans shall be
limited to Base Rate Loans unless JPMorgan Chase Bank and the Borrower shall agree otherwise. The
Borrower may borrow, repay and reborrow under this Section 2.17. Unless notified to the
contrary by JPMorgan Chase Bank, borrowings under the Swing Line shall be made in the minimum
amount of $1,000,000 or, if greater, in amounts which are integral multiples of $100,000, or in the
amount necessary to effect a Base Rate Refunding Loan, upon irrevocable telephonic notice, by an
Authorized Representative of Borrower made to JPMorgan Chase Bank not later than 12:30 P.M. on the
Business Day of the requested borrowing. The Borrower shall provide the Administrative Agent
written confirmation of each such telephonic notice on the same day by telefacsimile transmission
in the form of a Borrowing Notice. Each such Borrowing Notice shall specify the amount of the
borrowing and the date of borrowing, and shall be in the form of Exhibit D-3, with
appropriate insertions. Unless notified to the contrary by JPMorgan Chase Bank, each repayment of
a Swing Line Loan shall be in an amount which is an integral multiple of $100,000
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or the aggregate
amount of all Swing Line
Outstandings. If the Borrower instructs JPMorgan Chase Bank to debit any demand deposit
account of the Borrower in the amount of any payment with respect to a Swing Line Loan, or JPMorgan
Chase Bank otherwise receives repayment, after 2:00 P.M. on a Business Day, such payment shall be
deemed received on the next Business Day.
(b) Swing Line Loans shall bear interest at the Base Rate applicable to Revolving Credit Loans
or at any rate otherwise mutually agreed upon by JPMorgan Chase Bank and the Borrower. The
interest payable on Swing Line Loans is solely for the account of JPMorgan Chase Bank, and all
accrued and unpaid interest on Swing Line Loans shall be payable on the dates and in the manner
provided in Section 2.6 with respect to interest on Base Rate Loans.
(c) Upon the making of a Swing Line Loan, each Revolving Credit Lender shall be deemed to have
purchased from JPMorgan Chase Bank a Participation therein in an amount determined with reference
to such Lender’s Revolving Percentage of such Swing Line Loan. Upon demand made by JPMorgan Chase
Bank, each Revolving Credit Lender shall, according to its Revolving Percentage of such Swing Line
Loan, promptly provide to JPMorgan Chase Bank its purchase price therefor in an amount equal to its
Participation therein. Any Advance made by a Revolving Credit Lender pursuant to demand of
JPMorgan Chase Bank of the purchase price of its Participation shall be deemed (i) provided that
the conditions to making Revolving Credit Loans shall be satisfied, a Base Rate Refunding Loan
under Section 2.4 until the Borrower converts such Base Rate Loan in accordance with the
terms of Section 2.12, and (ii) in all other cases, the funding by each Revolving Credit
Lender of the purchase price of its Participation in such Swing Line Loan. The obligation of each
Revolving Credit Lender to so provide its purchase price to JPMorgan Chase Bank shall be absolute
and unconditional and shall not be affected by the occurrence of a Default, an Event of Default or
any other occurrence or event. Simultaneously with the making of each such payment by a Revolving
Credit Lender to JPMorgan Chase Bank to fund such Lender’s purchase price of a Participation in
such Swing Line Loan pursuant to clause (ii) of this paragraph, such Lender shall, automatically
and without any further action on the part of JPMorgan Chase Bank or such Lender, have the right to
enforce its Participation in an amount equal to such payment (excluding the portion thereof
constituting interest accrued prior to the date the Revolving Credit Lender made its payment) in
the related rights of JPMorgan Chase Bank with respect to obligations of the Borrower as to such
Swing Line Loan.
The Borrower, at its option and subject to the terms hereof, may request an Advance pursuant
to Section 2.4 in an amount sufficient to repay Swing Line Outstandings on any date and the
Administrative Agent shall provide from the proceeds of such Advance to JPMorgan Chase Bank the
amount necessary to repay such Swing Line Outstandings (which JPMorgan Chase Bank shall then apply
to such repayment) and credit any balance of the Advance in immediately available funds in the
manner directed by the Borrower pursuant to Section 2.4(c)(iii). The proceeds of such
Advances shall be paid to JPMorgan Chase Bank for application to the Swing Line Outstandings and
the Revolving Credit Lenders shall then be deemed to have made Revolving Credit Loans in the amount
of such Advances. The Swing Line shall continue in effect until the Revolving Credit Termination
Date, at which time all Swing Line Outstandings and accrued interest thereon shall be due and
payable in full. Notwithstanding the foregoing, the Swing Line Outstandings shall be immediately
due and
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payable at any time upon notice by JPMorgan Chase Bank or the Administrative Agent to the
Borrower. In the event the Revolving Credit Lenders have funded Participations in any Swing Line
Loan, then at the time payment (in fully collected, immediately available funds) of any principal
amount of, or interest on, such Swing Line Loan, in whole or in part, is received by JPMorgan Chase
Bank or the Administrative Agent, JPMorgan Chase Bank or the Administrative Agent (as applicable)
shall promptly pay to each Revolving Credit Lender an amount equal to its Revolving Percentage of
such payment from the Borrower.
2.18 Increased Amounts. (a) The Borrower shall have the right from time to time,
without the consent of the Lenders, subject to the terms of this Section 2.18 and provided
that the Borrower has obtained any required consents of third parties, to effectuate during the
period commencing on the Closing Date and ending on the date of any voluntary reduction of the
Total Revolving Credit Commitment, an increase in the Total Revolving Credit Commitment under this
Agreement by adding to this Agreement one or more Persons acceptable to the Borrower and reasonably
acceptable to the Administrative Agent, who shall, upon completion of the requirements of this
Section 2.18, constitute a “Revolving Credit Lender” or “Revolving Credit Lenders”
hereunder (each an “Added Lender”), or by allowing one or more Revolving Credit Lenders in their
sole discretion to increase their respective Revolving Credit Commitments hereunder (each an
“Increasing Lender”), so that such increased Revolving Credit Commitments shall equal the aggregate
increase in the Total Revolving Credit Commitment effectuated pursuant to this Section
2.18; provided that (i) the aggregate addition of or increase in the Revolving Credit
Commitment of any Lender to be effected under this Section 2.18 (collectively, the “Added
Commitments”) shall be in an amount not less than $5,000,000, and, if greater than $5,000,000, an
integral multiple of $1,000,000, (ii) no increase in or added Revolving Credit Commitments pursuant
to this Section 2.18 shall result in the sum of the Total Revolving Credit Commitment
hereunder exceeding $800,000,000, (iii) no Lender’s Revolving Credit Commitment shall be increased
under this Section 2.18 without the consent of such Lender, and (iv) there shall not exist
any Default or Event of Default immediately prior to and immediately after giving effect to any
such Added Commitment. The Borrower shall deliver or pay, as applicable, to the Administrative
Agent not later than five (5) Business Days prior to any such increase in the Total Revolving
Credit Commitment each of the following items with respect to each Added Lender and Increasing
Lender:
(i) a written notice of Borrower’s intention to increase the Total Revolving Credit
Commitment pursuant to this Section 2.18, which shall specify each Added Lender and
Increasing Lender, the proposed effective date for the increase in Revolving Credit
Commitments, the amounts of the Added Commitments of each such Lender that will result
(which amounts shall be subject to confirmation by the Administrative Agent), and such other
information as is reasonably requested by the Administrative Agent;
(ii) documents in the form of Exhibit K or Exhibit L, as may be
required by the Administrative Agent, executed and delivered by each Added Lender and each
Increasing Lender, pursuant to which it becomes a party hereto or increases its Revolving
Credit Commitment; and
(iii) a non-refundable processing fee of $3,500 with respect to each Added Lender or
Increasing Lender for the sole account of the Administrative Agent.
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(b) Upon receipt of any notice referred to in clause (a)(i) above, the Administrative Agent
shall promptly notify each Lender thereof and shall distribute an amended Exhibit A (which
shall be deemed effective as of the Increased Commitment Date referred to below and thereupon
incorporated into this Agreement) to reflect any changes therein resulting from such increase.
Upon execution and delivery of the documents and the payment of the fee as described above, and
upon delivery to the Administrative Agent by each Added Lender and Increasing Lender for further
delivery to the Borrower or other Revolving Credit Lenders (as applicable) of immediately
available, freely transferable funds in an amount equal to, for each Added Lender, such Added
Lender’s Revolving Percentage (after giving effect to all Added Commitments) of Revolving Credit
Outstandings and funded Participations and, for each Increasing Lender, the product of the increase
in such Increasing Lender’s Revolving Percentage (after giving effect to all Added Commitments)
multiplied by the sum of Revolving Credit Outstandings and funded Participations, as applicable
(the “Increased Commitment Date”), (x) each such Added Lender shall constitute a “Revolving Credit
Lender” for all purposes under this Agreement and related documents without any acknowledgment by
or the consent of the other Lenders, with a Revolving Credit Commitment as specified in such
documents and revised Exhibit A, (y) each such Increasing Lender’s Revolving Credit
Commitment shall increase as specified in such documents and revised Exhibit A, and each
other Lender’s Revolving Percentage shall be adjusted to reflect the Added Commitments and shall be
specified in such revised Exhibit A, as the case may be. As of the Increased Commitment
Date, (i) the respective Revolving Percentages of the Lenders shall be deemed modified as
appropriate to correspond to such Added Commitments, and (ii) on the Increased Commitment Date, to
the extent necessary to keep all outstanding Revolving Credit Loans and funded Participations
ratable among all Revolving Credit Lenders in accordance with any revised Revolving Percentages
arising from any Added Commitments under this Section 2.18, all Interest Periods then
outstanding shall be deemed to be terminated without further action or consent of the Borrower and
the Borrower shall pay any additional amounts required pursuant to Section 4.5 in
connection therewith). In addition, if there are at such time outstanding any Revolving Credit
Outstandings and funded Participations, each Revolving Credit Lender whose Revolving Percentage has
been decreased as a result of the increase in the Total Revolving Credit Commitment shall be deemed
to have assigned, without recourse, to each Added Lender and Increasing Lender such portion of such
Lender’s Revolving Credit Outstandings or funded Participations as shall be necessary to effectuate
such adjustment in Revolving Percentages. Each Increasing Lender and Added Lender (i) shall be
deemed to have assumed such portion of such Revolving Credit Outstandings and funded Participations
and (ii) shall fund to each other Revolving Credit Lender on the Increased Commitment Date the
amount of Revolving Credit Outstandings and funded Participations assigned to it by such Lender.
The Borrower agrees to pay to the Revolving Credit Lenders on demand any and all amounts required
pursuant to Section 4.5 resulting from any such assignment of Revolving Credit
Outstandings.
(c) This Section 2.18 shall supersede any provisions in Section 11.1 and
11.6 to the contrary.
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ARTICLE III
Letters of Credit
3.1 Letters of Credit. The Issuing Banks agree, subject to the terms and conditions
of this Agreement, upon request of the Borrower, to issue from time to time for the account of the
Borrower Letters of Credit upon delivery to the applicable Issuing Bank of an Application and
Agreement for Letter of Credit relating thereto in form and content acceptable to such Issuing
Bank; provided, that (i) no Issuing Bank shall issue (or renew) any Letter of Credit if it
has been notified by the Administrative Agent or has actual knowledge that a Default or Event of
Default has occurred and is continuing, (ii) the Outstanding Letters of Credit shall not exceed the
Total Letter of Credit Commitment and (iii) no Letter of Credit shall be issued (or renewed) if,
after giving effect thereto, Outstanding Letters of Credit plus Revolving Credit Outstandings plus
Swing Line Outstandings plus outstanding Competitive Bid Loans shall exceed the Total Revolving
Credit Commitment. No Letter of Credit shall have an expiry date (including all rights of the
Borrower or any beneficiary named in such Letter of Credit to require renewal, but not any renewal
options that are subject to the approval of the Issuing Bank) or payment date occurring later than
the earlier to occur of one year after the date of its issuance or the fifth Business Day prior to
the Revolving Credit Termination Date. Each request by the Borrower for the issuance or renewal of
a Letter of Credit, whether pursuant to an Application and Agreement for Letter of Credit or
otherwise, shall constitute its certification that the conditions specified in Section 5.2
with respect to such issuance or renewal have been satisfied. At any one time during the term of
this Agreement, not more than four (4) different Revolving Credit Lenders (including any Existing
Issuing Banks) shall be allowed to act as an Issuing Bank.
3.2 Reimbursement and Participations.
(a) The Borrower hereby unconditionally agrees to pay to the applicable Issuing Bank
immediately on demand at its Applicable Lending Office all amounts required to pay all drafts drawn
under any Letters of Credit and all reasonable expenses incurred by an Issuing Bank in connection
with the Letters of Credit, and in any event and without demand to place in possession of the
applicable Issuing Bank (which shall include Advances under the Revolving Credit Facility if
permitted by Section 2.4 and Swing Line Loans if permitted by Section 2.17)
sufficient funds to pay all debts and liabilities arising under any Letter of Credit. The
Borrower’s obligations to pay an Issuing Bank under this Section 3.2, and such Issuing
Bank’s right to receive the same, shall be absolute and unconditional and shall not be affected by
any circumstance whatsoever. Each Issuing Bank agrees to give the Borrower prompt notice of any
request for a draw under a Letter of Credit, but failure to provide such notice shall not affect
the parties’ Obligations with respect thereto. Each Issuing Bank may charge any account the
Borrower may have with it for any and all amounts such Issuing Bank pays under a Letter of Credit,
plus reasonable charges and reasonable expenses as from time to time agreed to by such Issuing Bank
and the Borrower; provided that to the extent permitted by Section 2.4(c)(iv) and
Section 2.17, such amounts shall be paid pursuant to Advances under the Revolving Credit
Facility or, if the Borrower shall elect, by Swing Line Loans. The Borrower agrees that an
Issuing Bank may, in its sole discretion, accept or pay, as complying with the terms of any Letter
of Credit, any drafts or other documents otherwise in order which may be signed or issued by an
administrator, executor, trustee in bankruptcy, debtor in possession, assignee for the benefit of
45
creditors, liquidator, receiver, attorney in fact or other legal representative of a party who is
authorized under such Letter of Credit to draw or issue any drafts or other documents. The
Borrower agrees to pay an Issuing Bank interest on any Reimbursement Obligations not paid when due
hereunder at the Default Rate.
(b) In accordance with the provisions of Section 2.4(c), each Issuing Bank shall
notify the Administrative Agent (and shall also notify the Borrower) of any drawing under any
Letter of Credit as promptly as practicable following the receipt by the Issuing Bank of such
drawing, but failure to provide such notice shall not affect the parties’ Obligations with respect
thereto.
(c) Each Revolving Credit Lender (other than the applicable Issuing Bank) shall automatically
acquire on the date of issuance thereof, a Participation in the liability of such Issuing Bank in
respect of each Letter of Credit in an amount equal to such Lender’s Revolving Percentage of such
liability, and to the extent that the Borrower is obligated to pay such Issuing Bank under
Section 3.2(a), each Revolving Credit Lender (other than the Issuing Bank) thereby shall
absolutely, unconditionally and irrevocably assume, and shall be unconditionally obligated to pay
to such Issuing Bank, its Revolving Percentage of the liability of such Issuing Bank under such
Letter of Credit in the manner and with the effect provided in Section 2.4(c)(iv). With
respect to drawings under any of the Letters of Credit, each Revolving Credit Lender, upon receipt
from the Administrative Agent of notice of a drawing in the manner described in Section
2.4(c)(iv), shall promptly pay to the Administrative Agent for the account of the applicable
Issuing Bank, prior to the applicable time set forth in Section 2.4(c)(iv), its Revolving
Percentage of such drawing. Simultaneously with the making of each such payment by a Revolving
Credit Lender to an Issuing Bank, such Lender shall, automatically and without any further action
on the part of such Issuing Bank or such Lender, acquire a Participation in an amount equal to such
payment (excluding the portion thereof constituting interest accrued prior to the date such Lender
made its payment) in the related Reimbursement Obligation of the Borrower. The Reimbursement
Obligations of the Borrower shall be immediately due and payable upon notice to the Borrower,
whether in Advances made in accordance with Section 2.4(c)(iv) or otherwise. Each
Revolving Credit Lender’s obligation to make payment to the Administrative Agent for the account of
an Issuing Bank pursuant to Section 2.4(c)(iv) and this Section 3.2(c), and the
right of such Issuing Bank to receive the same, shall be absolute and unconditional, shall not be
affected by any circumstance whatsoever and shall be made without any offset, abatement,
withholding or reduction whatsoever. In the event the Revolving Credit Lenders have purchased
Participations in any Reimbursement Obligation as set forth above, then at any time payment (in
fully collected, immediately available funds) of such Reimbursement Obligation, in whole or in
part, is received by the applicable Issuing Bank or the Administrative Agent from the Borrower,
such Issuing Bank or Administrative Agent shall promptly pay to each Revolving Credit Lender an
amount equal to its Revolving Percentage of such payment from the Borrower. If any Revolving
Credit Lender is obligated to pay but does not pay amounts to the Administrative Agent for the
account of an Issuing Bank in full upon such request as required by this Section 3.2(c),
such Lender shall, on demand, pay to the Administrative Agent for the account of such
Issuing Bank interest on the unpaid amount for each day during the period commencing on the
date of notice given to such Lender pursuant to Section 2.4(c) until such Lender pays such
amount to the Administrative Agent for the account of such Issuing Bank in full at the Federal
Funds Rate.
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(d) As soon as practical following the issuance of a Letter of Credit, the applicable Issuing
Bank shall notify the Administrative Agent, and the Administrative Agent shall notify each
Revolving Credit Lender, of the date of issuance of such Letter of Credit, the stated amount and
the expiry date of such Letter of Credit. Promptly following the end of each calendar quarter,
each Issuing Bank shall deliver to the Administrative Agent a notice describing the aggregate
undrawn amount of all Letters of Credit at the end of such quarter. Upon the request of any
Revolving Credit Lender from time to time, each Issuing Bank shall deliver to the Administrative
Agent, and the Administrative Agent shall deliver to such Lender, any other information reasonably
requested by such Lender with respect to each Outstanding Letter of Credit.
(e) Each issuance by an Issuing Bank of a Letter of Credit shall, in addition to the
conditions precedent set forth in Article V, be subject to the conditions that (x) such
Letter of Credit be in such form and contain such terms as shall be reasonably satisfactory to the
Issuing Bank consistent with the then current practices and procedures of such Issuing Bank with
respect to similar letters of credit, (y) the issuance of such Letter of Credit shall not violate
any written policy of the Issuing Bank, and (z) the Borrower shall have executed and delivered such
other instruments and agreements relating to such Letters of Credit as the Issuing Bank shall have
reasonably requested consistent with such practices and procedures. Except as otherwise provided
therein, all Letters of Credit shall be governed by the rules of the “International Standby
Practices 1998” published by the Institute of International Banking Law & Practice (or such later
version thereof as may be in effect at the time of issuance).
(f) Without limiting the generality of the provisions of Section 11.9, the Borrower
hereby agrees to indemnify and hold harmless each Issuing Bank, each other Revolving Credit Lender
and the Administrative Agent from and against any and all claims and damages, losses, liabilities,
and reasonable costs and expenses which such Issuing Bank, such other Revolving Credit Lender or
the Administrative Agent may incur (or which may be claimed against such Issuing Bank, such other
Revolving Credit Lender or the Administrative Agent) by any Person by reason of or in connection
with the issuance or transfer of or payment or failure to pay under any Letter of Credit; provided
that the Borrower shall not be required to indemnify an Issuing Bank, any other Revolving Credit
Lender or the Administrative Agent for any claims, damages, losses, liabilities, costs or expenses
to the extent, but only to the extent, (i) caused by the willful misconduct or gross negligence of
the party to be indemnified or (ii) caused by the failure of an Issuing Bank to pay under any
Letter of Credit after the presentation to it of a request for payment strictly complying with the
terms and conditions of such Letter of Credit, unless such payment is prohibited by any law,
regulation, court order or decree or failure to pay is permitted under the terms of the Applicable
Letter of Credit. The indemnification and hold harmless provisions of this Section 3.2(f)
shall survive repayment of the Obligations, occurrence of the Revolving Credit Termination Date,
the Facility Termination Date and expiration or termination of this Agreement.
(g) Without limiting the provisions of Section 3.2(f), the obligation of the Borrower
to immediately reimburse an Issuing Bank for drawings made under Letters of Credit and each Issuing
Bank’s right to receive such payment shall be absolute, unconditional and irrevocable, and such
obligations of the Borrower shall be performed strictly in accordance with the terms of this
Agreement and such Letters of Credit and the related Application and
47
Agreement for any Letter of
Credit, under all circumstances whatsoever, including the following circumstances:
(i) any lack of validity or enforceability of the Letter of Credit, the
obligation supported by the Letter of Credit or any other agreement or instrument
relating thereto (collectively, the “Related LC Documents”);
(ii) any amendment or waiver of or any consent to or departure from all or any
of the Related LC Documents;
(iii) the existence of any claim, setoff, defense (other than the defense of
payment in accordance with the terms of this Agreement) or other rights which the
Borrower may have at any time against any beneficiary or any transferee of a Letter
of Credit (or any persons or entities for whom any such beneficiary or any such
transferee may be acting), the Administrative Agent, the Lenders or any other
Person, whether in connection with the Loan Documents, the Related LC Documents or
any unrelated transaction;
(iv) any breach of contract or other dispute between the Borrower and any
beneficiary or any transferee of a Letter of Credit (or any persons or entities for
whom such beneficiary or any such transferee may be acting), the Administrative
Agent, the Lenders or any other Person;
(v) any draft, statement or any other document presented under the Letter of
Credit proving to be forged, fraudulent, invalid or insufficient in any respect or
any statement therein being untrue or inaccurate in any respect whatsoever so long
as any such document appeared to comply with the terms of the Letter of Credit;
(vi) any delay, extension of time, renewal, compromise or other indulgence or
modification granted or agreed to by the Administrative Agent, with or without
notice to or approval by the Borrower in respect of any of Borrower’s Obligations;
or
(vii) any other circumstance or happening whatsoever where the applicable
Issuing Bank has acted in good faith, whether or not similar to any of the
foregoing;
provided, however, that nothing contained herein shall be deemed to release an
Issuing Bank or any other Lender of any liability for actual loss arising as a result of its gross
negligence or willful misconduct or out of the wrongful dishonor by an Issuing Bank of a proper
demand for payment made under and strictly complying with the terms of any Letter of Credit.
3.3 Governmental Action. No Issuing Bank shall be under any obligation to issue any
Letter of Credit if any order, judgment or decree of any Governmental Authority or arbitrator shall
by its terms purport to enjoin or restrain such Issuing Bank from issuing such Letter of Credit, or
any law applicable to such Issuing Bank or any request or directive (whether or not having the
force of law) from any Governmental Authority with jurisdiction over such Issuing
48
Bank shall
prohibit, or request that such Issuing Bank refrain from, the issuance of letters of credit
generally or such Letter of Credit in particular or shall impose upon such Issuing Bank with
respect to such Letter of Credit any restriction, reserve or capital requirement (for which such
Issuing Bank is not otherwise compensated hereunder) not in effect on the Closing Date, or shall
impose upon the Letter of Credit any unreimbursed loss, cost or expense which was not applicable on
the Closing Date and which such Issuing Bank in good xxxxx xxxxx material to it, unless the
Borrower agrees to compensate the Issuing Bank for such restriction, reserve, capital requirement,
loss, cost or expense on terms satisfactory to the Issuing Bank.
3.4 Letter of Credit Fee. The Borrower agrees to pay (i) to the Administrative Agent,
for the pro rata benefit of the Revolving Credit Lenders based on their Revolving Percentages, a
fee on the aggregate amount available to be drawn on each Outstanding Letter of Credit at a rate
equal to the Applicable Eurodollar Margin with respect to the Revolving Credit Facility as in
effect from time to time, and (ii) to the applicable Issuing Bank, as issuer of each Letter of
Credit, an issuance fee in such amount as may be agreed by such Issuing Bank and the Borrower from
time to time. Such payments of fees provided for in this Section 3.4 shall be due with
respect to each Letter of Credit quarterly in arrears, such payment to be made not later than the
third (3rd) Business Day of each April, July, October and January, commencing on the first such
date following the issuance of a Letter of Credit under this Agreement. Such fees shall be
calculated on the basis of a year of 360 days for the actual number of days elapsed.
3.5 Administrative Fees. The Borrower shall pay to any Issuing Bank such standard
administrative fee and other standard fees, if any, in connection with the Letters of Credit in
such amounts and at such times as such Issuing Bank and the Borrower shall agree from time to time.
ARTICLE IV
Change in Circumstances
4.1 Increased Cost and Reduced Return.
(a) If, after the date hereof with respect to each Revolving Credit Lender, and, after the
First Amendment Effective Date, with respect to each Term Lender, the adoption of any applicable
law, rule, or regulation, or any change in any applicable law, rule, or regulation, or any change
in the interpretation or administration thereof by any governmental authority, central
bank, or comparable agency charged with the interpretation or administration thereof, or
compliance by any Lender (or its Applicable Lending Office) with any request or directive (whether
or not having the force of law) of any such governmental authority, central bank, or comparable
agency:
(i) shall subject such Lender (or its Applicable Lending Office) to any increase in the
cost (other than Taxes and Other Taxes as to which Section 4.6 shall govern, and
other than the Reserve Requirement utilized in the determination of the Eurodollar Rate or
Eurodollar Competitive Rate) of making or maintaining any Eurodollar Loans, any Competitive
Bid Loans bearing interest at a Eurodollar Competitive Rate or its obligation to make
Eurodollar Loans or Competitive Bid Loans at the Eurodollar Competitive Rate, or change the
basis of taxation of any amounts payable
49
to such Lender (or its Applicable Lending Office)
under this Agreement in respect of any Eurodollar Rate Loans or Competitive Bid Loans at the
Eurodollar Competitive Rate (other than taxes imposed on the income, assets, receipts or
branch profits of such Lender, franchise taxes, or taxes described in Sections
4.6(iii)-(v) by the jurisdiction in which such Lender has its principal office or such
Applicable Lending Office);
(ii) shall impose, modify, or deem applicable any reserve, special deposit, assessment
or similar requirement (other than the Reserve Requirement utilized in the determination of
the Eurodollar Rate or Eurodollar Competitive Rate) relating to any extensions of credit or
other assets of, or any deposits with or other liabilities or commitments of, such Lender
(or its Applicable Lending Office), including the Revolving Credit Commitment of such Lender
hereunder; or
(iii) shall impose on such Lender (or its Applicable Lending Office) or on the London
interbank market any other condition affecting this Agreement or any of such extensions of
credit or liabilities or commitments;
and the result of any of the foregoing is to increase the cost to such Lender (or its Applicable
Lending Office) of making, Converting into, Continuing, or maintaining any Loans or to reduce any
sum received or receivable by such Lender (or its Applicable Lending Office) under this Agreement
in each case with respect to any Eurodollar Rate Loans or any Competitive Bid Loans bearing
interest at a Eurodollar Competitive Rate, then, within five (5) Business Days of the Borrower’s
receipt of a request certifying in reasonable detail calculations of such amount and the basis
therefor, the Borrower shall pay to such Lender such amount or amounts as will compensate such
Lender for such increased cost or reduction, provided, that no Lender shall be entitled to
claim any such amount or amounts for such increased cost or reduction incurred more than six months
prior to the delivery of such request and, with respect to each Term Lender, prior to the First
Amendment Effective Date. If any Lender requests compensation by the Borrower under this
Section 4.1(a), the Borrower may, by notice to such Lender (with a copy to the
Administrative Agent), suspend the obligation of such Lender to make or Continue Loans of the Type
with respect to which such compensation is requested, or to Convert Loans of any other Type into
Loans of such Type, until the event or condition giving rise to such request ceases to be in effect
(in which case the provisions of Section 4.4 shall be applicable); provided that such
suspension shall not affect the right of such Lender to receive the compensation so requested.
(b) If, after the date hereof with respect to each Revolving Credit Lender, and, after the
First Amendment Effective Date, with respect to each Term Lender, any Lender shall have determined
that the adoption of any applicable law, rule, or regulation regarding capital adequacy or any
change therein or in the interpretation or administration thereof by any governmental authority,
central bank, or comparable agency charged with the interpretation or administration thereof, or
any request or directive made or issued after the date hereof with respect to each Revolving Credit
Lender, and, after the First Amendment Effective Date, with respect to each Term Lender, regarding
capital adequacy (whether or not having the force of law) of any such governmental authority,
central bank, or comparable agency, has or would have the effect of reducing the rate of return on
the capital of such Lender or any corporation controlling such Lender as a consequence of such
Lender’s obligations hereunder to a level below that which such Lender or such corporation could
have achieved but for such adoption, change,
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request, or directive (taking into consideration its
policies with respect to capital adequacy), then, within five (5) Business Days of the Borrower’s
receipt of a request certifying in reasonable detail calculations of such amount and the basis
therefor, the Borrower shall pay to such Lender such additional amount or amounts as will
compensate such Lender for such reduction, provided, that no Lender shall be entitled to
claim any such amount or amounts for such increased cost incurred more than six months prior to the
delivery of such request and, with respect to each Term Lender, prior to the First Amendment
Effective Date.
(c) Each Lender shall promptly notify the Borrower and the Administrative Agent of any event
of which it has knowledge, occurring after the date hereof, which will entitle such Lender to
compensation pursuant to this Section 4.1 and will designate a different Applicable Lending
Office if such designation will avoid the need for, or reduce the amount of, such compensation and
will not, in the judgment of such Lender, be otherwise disadvantageous to it. Any Lender claiming
compensation under this Section 4.1 shall furnish to the Borrower and the Administrative
Agent a statement setting forth the additional amount or amounts to be paid to it hereunder which
shall be conclusive in the absence of manifest error. In determining such amount, such Lender may
use any reasonable averaging and attribution methods.
(d) The provisions of this Section 4.1 shall continue in effect notwithstanding the
Facility Termination Date.
4.2 Limitation on Types of Loans. If on or prior to the first day of any Interest
Period for any Eurodollar Rate Loan or Competitive Bid Loan bearing interest at a Eurodollar
Competitive Rate:
(a) the Administrative Agent reasonably determines (which determination shall be
conclusive) that by reason of circumstances affecting the relevant market, adequate and
reasonable means do not exist for ascertaining the Eurodollar Rate or Eurodollar Competitive
Rate, as the case may be, for such Interest Period; or
(b) the Required Lenders determine in good faith (which determination shall be
conclusive) and notify the Administrative Agent that the Eurodollar Rate or Eurodollar
Competitive Rate, as the case may be, will not adequately and fairly reflect the cost to the
Lenders of funding Eurodollar Rate Loans or Competitive Bid Loan bearing interest at a
Eurodollar Competitive Rate for such Interest Period;
then the Administrative Agent shall give the Borrower prompt notice thereof specifying the relevant
Type of Loans and the relevant amounts or periods, and so long as such condition remains in effect,
the Lenders shall be under no obligation to make additional Loans of such Type, Continue Loans of
such Type, or to Convert Loans of any other Type into Loans of such Type and the Borrower shall, on
the last day(s) of the then current Interest Period(s) for the outstanding Loans of the affected
Type, either prepay such Loans or Convert such Loans into another Type of Loan in accordance with
the terms of this Agreement.
4.3 Illegality. Notwithstanding any other provision of this Agreement, in the event
that it becomes unlawful for any Lender or its Applicable Lending Office to make, maintain, or fund
Eurodollar Rate Loans or Competitive Bid Loans bearing interest at the Eurodollar
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Competitive Rate
hereunder, then such Lender shall promptly notify the Borrower thereof and such Lender’s obligation
to make or Continue Eurodollar Rate Loans or Competitive Bid Loans bearing interest at the
Eurodollar Competitive Rate and to Convert other Types of Loans into Eurodollar Rate Loans or
Competitive Bid Loans bearing interest at the Eurodollar Competitive Rate shall be suspended until
such time as such Lender may again make, maintain, and fund Eurodollar Rate Loans (in which case
the provisions of Section 4.4 shall be applicable).
4.4 Treatment of Affected Loans. If the obligation of any Lender to make a Eurodollar
Rate Loan or a Competitive Bid Loan bearing interest at a Eurodollar Competitive Rate or to
Continue, or to Convert Loans of any other Type into, Loans of a particular Type shall be suspended
pursuant to Section 4.1 or 4.3 hereof (Loans of such Type being herein called
“Affected Loans” and such Type being herein called the “Affected Type”), such Lender’s Affected
Loans shall be automatically Converted into Base Rate Loans on the last day(s) of the then current
Interest Period(s) for Affected Loans (or, in the case of a Conversion required by Section
4.3 hereof, on such earlier date as such Lender may specify to the Borrower with a copy to the
Administrative Agent) and, unless and until such Lender gives notice as provided below that the
circumstances specified in Section 4.1 or 4.3 hereof that gave rise to such
Conversion no longer exist:
(a) to the extent that such Lender’s Affected Loans have been so Converted, all
payments and prepayments of principal that would otherwise be applied to such Lender’s
Affected Loans shall be applied instead to its Base Rate Loans; and
(b) all Loans that would otherwise be made or Continued by such Lender as Loans of the
Affected Type shall be made or Continued instead as Base Rate Loans, and all Loans of such
Lender that would otherwise be Converted into Loans of the Affected Type shall be Converted
instead into (or shall remain as) Base Rate Loans.
If such Lender gives notice to the Borrower (with a copy to the Administrative Agent) that the
circumstances specified in Section 4.1 or 4.3 hereof that gave rise to the
Conversion of such Lender’s Affected Loans pursuant to this Section 4.4 no longer exist
(which such Lender agrees
to do promptly upon such circumstances ceasing to exist) at a time when Loans of the Affected Type
made by other Lenders are outstanding, such Lender’s Base Rate Loans shall be automatically
Converted, on the first day(s) of the next succeeding Interest Period(s) for such outstanding Loans
of the Affected Type, to the extent necessary so that, after giving effect thereto, all Loans held
by the Lenders holding Loans of the Affected Type and by such Lender are held pro rata (as to
principal amounts, Types, and Interest Periods) in accordance with their respective Revolving
Credit Commitments or Term Commitments, as applicable.
4.5 Compensation. Upon demand of any Lender (with a copy to the Administrative Agent)
from time to time, the Borrower shall promptly compensate such Lender for and hold such Lender
harmless from any loss, cost or expense incurred by it as a result of:
(a) any continuation, conversion, payment or prepayment of any Eurodollar Rate Loan or
Competitive Bid Loan on a day other than the last day of the Interest Period for such Loan
(whether voluntary, mandatory, automatic, by reason of acceleration, or otherwise); or
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(b) any failure by the Borrower (for a reason other than the failure of such Lender to
make a Loan notwithstanding satisfaction of all conditions precedent thereto) to prepay,
borrow, Continue (including by reason of any prepayment) or Convert any Eurodollar Rate Loan
on the date or in the amount notified by the Borrower;
including any loss of anticipated profits and any loss or expense arising from the liquidation or
reemployment of funds obtained by it to maintain such Loan or from fees payable to terminate the
deposits from which such funds were obtained. The Borrower shall also pay any customary
administrative fees charged by such Lender in connection with the foregoing.
For purposes of calculating amounts payable by the Borrower to the Lenders under this
Section 4.5, each Lender shall be deemed to have funded each Eurodollar Rate Loan or
Competitive Bid Loan made by it at the Interbank Offered Rate used in determining the Eurodollar
Rate or Eurodollar Competitive Rate for such Loan by a matching deposit or other borrowing in the
applicable offshore Dollar interbank market for a comparable amount and for a comparable period,
whether or not such Eurodollar Rate Loan was in fact so funded.
The provisions of this Section 4.5 shall continue in effect notwithstanding the
Facility Termination Date.
4.6 Taxes. (a) Subject to Sections 4.6(d) and 4.6(e), any and all
payments by the Borrower to or for the account of any Lender or the Administrative Agent hereunder
or under any other Loan Document shall be made free and clear of and without deduction for any and
all present or future taxes, duties, levies, imposts, deductions, charges or withholdings, and all
liabilities with respect thereto, excluding, in the case of each Lender and the Administrative
Agent, (i) taxes imposed on its assets, income, receipts or branch profits, (ii) franchise taxes
imposed on it, by the jurisdiction under the laws of which such Lender (or its Applicable Lending
Office) or the Administrative Agent (as the case may be) is organized or any political subdivision
thereof, (iii) any taxes (other than withholding taxes) that would not be imposed but for a
connection between a Lender or the Administrative Agent and the jurisdiction imposing such taxes
(other than a connection arising solely by virtue of the activities of such Lender or the
Administrative Agent pursuant to or in respect of this Agreement or any other Loan Document), (iv)
any withholding
taxes payable with respect to payments hereunder or under any other Loan Document under laws
(including, without limitation, any statute, treaty, ruling, determination or regulation) in
effect, with respect to any Lender or the Administrative Agent, on the date such Lender or
Administrative Agent became a Lender or the Administrative Agent (as applicable), and (v) any taxes
arising after the Closing Date solely as a result of or attributable to Lender changing its
designated lending office after the date such Lender becomes a party hereto (all such non-excluded
taxes, duties, levies, imposts, deductions, charges, withholdings, and liabilities being
hereinafter referred to as “Taxes”). If the Borrower shall be required by law to deduct any Taxes
from or in respect of any sum payable under this Agreement or any other Loan Document to any Lender
or the Administrative Agent, (i) the sum payable shall be increased as necessary so that after
making all required deductions (including deductions applicable to additional sums payable under
this Section 4.6) such Lender or the Administrative Agent receives an amount equal to the
sum it would have received had no such deductions been made, (ii) the Borrower shall make such
deductions, (iii) the Borrower shall pay the full amount deducted to the relevant taxation
authority or other authority in accordance with applicable law,
53
and (iv) the Borrower shall furnish
to the Administrative Agent, at its address referred to in Section 11.2, the original or a
certified copy of a receipt or other reasonably acceptable documentation evidencing payment
thereof.
(b) In addition, the Borrower agrees to pay any and all present or future stamp or documentary
taxes and any other excise or property taxes or charges or similar levies which arise from any
payment made under this Agreement or any other Loan Document or from the execution or delivery of,
or otherwise with respect to, this Agreement or any other Loan Document (hereinafter referred to as
“Other Taxes”).
(c) The Borrower agrees to indemnify each Lender and the Administrative Agent for the full
amount of Taxes and Other Taxes (including, without limitation, any Taxes or Other Taxes imposed or
asserted by any jurisdiction on amounts payable under this Section 4.6) paid by such Lender
or the Administrative Agent (as the case may be) and any liability (including penalties, interest,
and expenses) arising therefrom or with respect thereto.
(d) Each Lender organized under the laws of a jurisdiction outside the United States, on or
prior to the date of its execution and delivery of this Agreement in the case of each Lender listed
on the signature pages hereof and on or prior to the date on which it becomes a Lender in the case
of each other Lender shall provide the Borrower and the Administrative Agent two duly signed
completed copies of either IRS Form W-8BEN or any successor thereto (relating to such Person and
entitling it to an exemption from, or (in the case of a Lender consented to by the Borrower)
reduction of, United States backup withholding tax and exemption from, or (in the case of a Lender
consented to by the Borrower) reduction of, other withholding tax on all payments to be made to
such Person by the Borrower pursuant to this Agreement) or IRS Form W-8ECI or any successor thereto
(relating to all payments to be made to such Person by the Borrower pursuant to this Agreement) or
such other evidence satisfactory to the Borrower and the Administrative Agent that such Person is
entitled to an exemption from, or (in the case of a Lender consented to by the Borrower) reduction
of, U.S. withholding tax. Thereafter and from time to time, each such Person shall (a) promptly
submit to the Administrative Agent such additional duly completed and signed copies of one of such
forms (or such successor forms as shall be adopted from time to time by the relevant United States
taxing authorities) as may then
be available under then current United States laws and regulations to avoid, or such evidence
as is satisfactory to the Borrower and the Administrative Agent of any available exemption from or
reduction of, United States withholding taxes in respect of all payments to be made to such Person
by the Borrower pursuant to this Agreement, (b) promptly notify the Administrative Agent of any
change in circumstances which would modify or render invalid any claimed exemption or reduction,
and (c) take such steps as shall not be materially disadvantageous to it, in the reasonable
judgment of such Lender, and as may be reasonably necessary (including the re-designation of its
lending office) to avoid any requirement of applicable laws that the Borrower make any deduction or
withholding for taxes from amounts payable to such Person. If such Person fails to deliver the
above forms or other documentation, then the Administrative Agent may withhold from any interest
payment to such Person an amount equivalent to the applicable withholding tax imposed by Sections
1441 and 1442 of the Code, without reduction. If any Governmental Authority asserts that the
Administrative Agent or the Borrower did not properly withhold any tax or other amount from
payments made in respect of such Person, such Person shall indemnify the Administrative Agent or
the Borrower therefor, including all
54
penalties and interest, any taxes imposed by any jurisdiction
on the amounts payable to the Administrative Agent or the Borrower under this Section, and costs
and expenses (including the reasonable fees and expenses of counsel (including the allocated cost
of internal counsel)) of the Administrative Agent or the Borrower. The obligation of the Lenders
under this Section shall survive the resignation or replacement of the Administrative Agent and
shall continue in effect notwithstanding the Facility Termination Date.
(e) For any period with respect to which a Lender has failed to provide the Borrower and the
Administrative Agent with the appropriate form pursuant to Section 4.6(d) (unless such
failure is due to an inability or restriction caused by a change in treaty, law, or regulation
occurring subsequent to the date on which a form originally was required to be provided), such
Lender shall not be entitled to indemnification under Section 4.6(a) or 4.6(b) with
respect to Taxes imposed by the United States; provided, however, that should a
Lender, which is otherwise exempt from or subject to a reduced rate of withholding tax, become
subject to Taxes because of its failure to deliver a form required hereunder, the Borrower shall
take such steps as such Lender shall reasonably request to assist such Lender to recover such
Taxes.
(f) If the Borrower is required to pay additional amounts to or for the account of any Lender
pursuant to this Section 4.6, then such Lender will agree to use reasonable efforts to
change the jurisdiction of its Applicable Lending Office so as to eliminate or reduce any such
additional payment which may thereafter accrue if such change, in the reasonable judgment of such
Lender, is not otherwise disadvantageous to such Lender.
(g) Within thirty (30) days after the date of any payment of Taxes, the Borrower shall furnish
to the Administrative Agent the original or certified copy of a receipt or other reasonably
acceptable documentation evidencing such payment.
(h) The provisions of this Section 4.6 shall continue in effect notwithstanding the
Facility Termination Date.
4.7 Replacement Lenders. The Borrower may, in its sole discretion, on ten (10) Business Days’ prior written notice
to the Administrative Agent and a Lender, cause a Lender that is or may become entitled to receive
any indemnification payment, additional amount or other compensation under this Article IV
or that fails to make Loans for the reasons provided in this Article IV to (and such Lender
shall) assign pursuant to Section 11.1 hereof, all of its rights and obligations under this
Agreement to another Lender, an Affiliate of another Lender or a Person reasonably acceptable to
the Administrative Agent and designated by the Borrower which is willing to become a Lender for a
purchase price equal to the outstanding principal amount of the Loans payable to such Lender,
together with any accrued but unpaid interest on such Loans, any accrued but unpaid fees with
respect to such Lender’s Revolving Credit Commitment and any other amounts payable to such Lender
under this Agreement; provided, that any expenses or other amounts which would be owing to
such Lender pursuant to any indemnification provision hereunder shall be payable by the Borrower to
such Lender. The replacement Lender under this Section shall pay the applicable processing fee
under Section 11.1.
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ARTICLE V
Conditions to Making Loans and Issuing Letters of Credit
5.1 Conditions of Initial Advance. The obligation of the Lenders to make the initial
Advance under the Revolving Credit Facility, and of the Issuing Banks to issue Letters of Credit
(if any) on the Closing Date, is subject to the conditions precedent that:
(a) the Administrative Agent shall have received on the Closing Date, in form and
substance satisfactory to the Administrative Agent and Lenders, the following:
(i) executed originals of each of this Agreement, the initial Facility
Guaranties and the other Loan Documents, together with all schedules and exhibits
thereto;
(ii) the favorable written opinion or opinions with respect to the Loan
Documents and the transactions contemplated thereby of (A) in-house counsel to the
Borrower and (B) Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, special counsel to the
Borrower and Guarantors, in each case dated the Closing Date, addressed to the
Administrative Agent and the Lenders and satisfactory to the Administrative Agent,
substantially in the form of Exhibits I-1 — I-2;
(iii) resolutions of the boards of directors or other appropriate governing
body (or of the appropriate committee thereof) of the Borrower and each Guarantor
certified by its secretary or assistant secretary as of the Closing Date, approving
and adopting the Loan Documents to be executed by such Person, and authorizing the
execution and delivery thereof;
(iv) specimen signatures of officers or other appropriate representatives
executing the Loan Documents on behalf of the Borrower and each Guarantor, certified
by the secretary or assistant secretary of such Borrower or Guarantor;
(v) the Organizational Documents of the Borrower and each Guarantor certified
as true and correct by its secretary or assistant secretary;
(vi) Operating Documents of the Borrower and each Guarantor certified as of the
Closing Date as true and correct by its secretary or assistant secretary;
(vii) certificates issued as of a recent date by the Secretaries of State of
the respective jurisdictions of formation of the Borrower and each Guarantor as to
the due existence and good standing of such Person;
(viii) notice of appointment of the initial Authorized Representative(s);
(ix) certificate of an Authorized Representative dated the Closing Date
demonstrating compliance with the financial covenants contained in Section
8.1 as of the end of the fiscal quarter most recently ended prior to the Closing
Date
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for which financial statements have been delivered to the Lenders pursuant to
Section 6.1(e) or Section 7.1, substantially in the form of
Exhibit E;
(x) an initial Borrowing Notice, if any, and, if elected by the Borrower,
Interest Rate Selection Notice;
(xi) evidence that all fees payable by the Borrower on the Closing Date to the
Administrative Agent, X.X. Xxxxxx Securities Inc. and the Lenders have been paid in
full, including the fees and expenses of counsel for the Administrative Agent to the
extent invoiced prior to or on the Closing Date (which may include amounts
constituting reasonable estimates of such fees and expenses incurred or to be
incurred in connection with the transaction; provided that no such estimate shall
thereafter preclude the final settling of accounts as to such fees and expenses);
and
(xii) evidence of payment in full of all obligations arising under the Existing
Loan Documents and termination thereof; and
(b) In the good faith judgment of the Administrative Agent and the Lenders:
(i) there shall not have occurred a material adverse change since December 31,
2004 in the business, assets, liabilities, operations, condition (financial or
otherwise) of the Borrower and its Subsidiaries taken as a whole;
(ii) there shall not exist any action, suit, investigation or proceeding
pending or threatened in any court or before any arbitrator or governmental
authority that: (x) materially and adversely affects the Borrower or its
Subsidiaries taken as a whole or (y) materially affects any transaction contemplated
hereby or the ability of the Borrower and its Subsidiaries to perform their
respective obligations under the Loan Documents; and
(iii) the Borrower and Guarantors shall have received all approvals, consents
and waivers, and shall have made or given all necessary filings and notices as shall
be required to consummate the transactions contemplated hereby without the
occurrence of any default under, conflict with or violation of (A) any applicable
law, rule, regulation, order or decree of any Governmental Authority or arbitral
authority or (B) any agreement, document or instrument to which any of the Borrower
and Guarantors is a party or by which any of them or their properties is bound.
5.2 Conditions of Loans. The obligations of the Lenders to make any Loans, and of the
Issuing Banks to issue Letters of Credit, hereunder on or subsequent to the Closing Date are
subject to the satisfaction of the following conditions:
(a) the Administrative Agent shall have received a Borrowing Notice if required by
Article II;
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(b) the representations and warranties of the Borrower and Guarantors set forth in
Article VI and in each of the other Loan Documents shall be true and correct in all
material respects on and as of the date of such Advance or issuance of such Letters of
Credit with the same effect as though such representations and warranties had been made on
and as of such date, except to the extent that such representations and warranties expressly
relate to an earlier date and except that the financial statements referred to in
Section 6.1(e)(i) shall be deemed (solely for the purpose of the representation and
warranty contained in such Section 6.1(e)(i) but not for the purpose of any cross
reference to such Section 6.1(e)(i) or to the financial statements described therein
contained in any other provision of Section 6.1(e) or elsewhere in Article
VI) to be those financial statements most recently delivered to the Administrative Agent
and the Lenders pursuant to Section 7.1;
(c) in the case of the issuance of a Letter of Credit, the Borrower shall have executed
and delivered to the applicable Issuing Bank an Application and Agreement for Letter of
Credit in form and content acceptable to such applicable Issuing Bank together with such
other instruments and documents as it shall request;
(d) immediately after giving effect to a Swing Line Loan, the aggregate Swing Line
Outstandings shall not exceed $25,000,000;
(e) at the time of (and after giving effect to) each Advance, Swing Line Loan or
issuance of each Letter of Credit, no Default or Event of Default shall have occurred and be
continuing; and
(f) immediately after giving effect to:
(i) a Loan or Letter of Credit, the aggregate principal balance of all
outstanding Loans (other than Term Loans) and Participations for each Lender
shall not exceed, respectively, such Lender’s Revolving Credit Commitment or
Letter of Credit Commitment; and
(ii) a Loan or Letter of Credit, the Outstanding Revolving Credit Obligations
shall not exceed the Total Revolving Credit Commitment.
5.3 Supplements to Schedules. The Borrower may, from time to time, amend or
supplement the Schedules, other than Schedules 1.1(a), 1.1(b) and 8.3 to
this Agreement by delivering (effective upon receipt) to the Administrative Agent and each Lender a
copy of such revised Schedule or Schedules which shall (i) be dated the date of delivery, (ii) be
certified by an Authorized Representative as true, complete and correct as of such date and as
delivered in replacement for the corresponding Schedule or Schedules previously in effect, and
(iii) show in reasonable detail (by blacklining or other appropriate graphic means) the changes
from each such corresponding predecessor Schedule. Notwithstanding anything to the contrary
contained herein or in any of the other Loan Documents, in the event that the Required Lenders
determine based upon such revised Schedule (whether individually or in the aggregate or
cumulatively) that there has been a material adverse change since the First Amendment Effective
Date which could
58
reasonably be expected to have a Material Adverse Effect, the Lenders shall have
no further obligation to fund additional Advances hereunder.
ARTICLE VI
Representations and Warranties
6.1 Representations and Warranties. The Borrower represents and warrants with respect
to itself and to its Subsidiaries (which representations and warranties shall survive the delivery
of the documents mentioned herein and the making of Loans and issuance of Letters of Credit), that:
(a) Organization and Authority.
(i) the Borrower and each Subsidiary is a corporation, limited liability
company or partnership duly organized and validly existing under the laws of the
jurisdiction of its incorporation or creation;
(ii) the Borrower and each Subsidiary (x) has the requisite power and authority
to own its properties and assets and to carry on its business as now being conducted
and as contemplated in the Loan Documents, and (y) is qualified to do business in
every jurisdiction in which failure so to qualify would have a Material Adverse
Effect;
(iii) the Borrower has the power and authority to execute, deliver and perform
this Agreement, and to borrow hereunder, and to execute, deliver and perform each of
the other Loan Documents to which it is a party;
(iv) each Guarantor has the power and authority to execute, deliver and perform
the Facility Guaranty and each of the other Loan Documents to which it is a party;
and
(v) when executed and delivered, each of the Loan Documents to which the
Borrower or any Guarantor is a party will be the legal, valid and binding obligation
or agreement of the Borrower or such Guarantor, as the case may be, enforceable
against the Borrower or such Guarantor in accordance with its terms, subject to the
effect of any applicable bankruptcy, moratorium, insolvency, reorganization or other
similar law affecting the enforceability of creditors’ rights generally and to the
effect of general principles of equity which may limit the availability of equitable
remedies (whether in a proceeding at law or in equity).
(b) Loan Documents. The execution, delivery and performance by the Borrower
and each Guarantor of each of the Loan Documents to which such Person is a party:
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(i) have been duly authorized by all Organizational Action of the Borrower or
such Guarantor, as the case may be, required for the lawful execution, delivery and
performance thereof;
(ii) do not violate any provisions of (1) any applicable law, rule or
regulation, (2) any judgment, writ, order, determination, decree or arbitral award
of any Governmental Authority or arbitral authority binding on the Borrower or such
Guarantor or its properties, or (3) the Organizational Documents or Operating
Documents of the Borrower or such Guarantor;
(iii) do not and will not be in conflict with, result in a breach of or
constitute an event of default, or an event which, with notice or lapse of time, or
both, would constitute an event of default, under any material indenture, agreement
or other instrument to which the Borrower is a party, or by which the properties or
assets of the Borrower is bound; and
(iv) do not and will not result in the creation or imposition of any Lien,
charge or encumbrance of any nature whatsoever upon any of the properties or assets
of the Borrower.
(c) Subsidiaries and Stockholders. As of the First Amendment Effective Date,
the Borrower has no Subsidiaries other than those Persons listed as Subsidiaries on
Schedule 6.1(c)) hereto; Schedule 6.1(c) to this Agreement states as of the
First Amendment Effective Date the capitalization of each Subsidiary listed thereon, the
number of shares or other equity interests of each class of capital stock or interest issued
and outstanding of each such Subsidiary and the number and/or percentage of outstanding
shares or other equity interest (including options, warrants and other rights to acquire any
interest) of each such class of capital stock or equity interest owned by the Borrower or by
any such Subsidiary, whether such Subsidiary is an Eligible Special Purpose Entity or
a Subsidiary engaged solely in the insurance business or otherwise; as of the First
Amendment Effective Date, the outstanding shares or other equity interests of each such
Subsidiary which is a corporation have been duly authorized and validly issued and are fully
paid and nonassessable; and, as of the First Amendment Effective Date, the Borrower and each
such Subsidiary owns beneficially and of record all the shares and other interests it is
listed as owning in Schedule 6.1(c), free and clear of any Lien other than the Liens
permitted under Section 8.3.
(d) Ownership Interests. As of the First Amendment Effective Date, the
Borrower owns no interest in any Person having an aggregate book value of $1,000,000 or more
other than the Persons listed in Schedule 6.1(c) hereto.
(e) Financial Condition. (i) The Borrower has prior to the First Amendment
Effective Date furnished to each Lender an audited consolidated balance sheet of the
Borrower and its Subsidiaries as at December 31, 2005 and the notes thereto and the related
consolidated statements of operations, cash flows, and changes in stockholders’ equity and
the notes thereto for the Fiscal Year then ended as examined and certified by KPMG LLP.
Except as set forth therein (including, in the case of such audited balance
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sheet, the notes thereto), such financial statements (including, in the case of such audited balance sheet,
the notes thereto) present fairly the financial condition of the Borrower and its
Subsidiaries as of the end of such Fiscal Year and such interim period and results of their
operations and the changes in their stockholders’ equity for the Fiscal Year and interim
period then ended, all in conformity with GAAP applied on a Consistent Basis (except for,
with respect to interim financial statements, normal year-end adjustments); and
(ii) since the later of (i) December 31, 2005 or (ii) the date of the audited financial
statements most recently delivered pursuant to Section 7.1(a) hereof, there has been
no material adverse change in the condition, financial or otherwise, of the Borrower and its
Subsidiaries or in the businesses, properties and operations of the Borrower and its
Subsidiaries, considered as a whole.
(f) Taxes. The Borrower and its Subsidiaries have filed or caused to be filed
all federal, state, local and foreign tax returns which are required to be filed by them and
except for taxes and assessments being contested in good faith and against which reserves
satisfactory to the Borrower’s independent certified public accountants have been
established, and have paid or caused to be paid all taxes as shown on said returns or on any
assessment received by them, to the extent that such taxes have become due except, with
respect to any of the foregoing, where any failure to do so could not reasonably be expected
to have a Material Adverse Effect.
(g) Litigation. Except as set forth in Schedule 6.1(g) attached
hereto, there is no action, suit or proceeding at law or in equity or by or before any
governmental instrumentality or agency or arbitral body pending, or, to the knowledge of the
Borrower, threatened by or against the Borrower or any Subsidiary or affecting the Borrower
or any Subsidiary or any properties or rights of the Borrower or any Subsidiary, which could
reasonably be expected to have a Material Adverse Effect.
(h) Margin Stock. No part of the proceeds of any Loan will be used in
violation of Regulation U, as amended (12 C.F.R. Part 221), of the Board; and the Borrower
and each of the Subsidiaries will comply with Regulation U at all times. The proceeds of
the borrowings made pursuant to Article II hereof will be used by the Borrower and
its Subsidiaries only for the purposes set forth in Section 2.16 hereof.
(i) Investment Company. Neither the Borrower nor any Subsidiary is an
“investment company,” or an “affiliated person” of, or “promoter” or “principal underwriter”
for, an “investment company,” as such terms are defined in the Investment Company Act of
1940, as amended (15 U.S.C. § 80a-1, et seq.).
(j) No Untrue Statement. Neither this Agreement nor any other Loan Document or
certificate or document executed and delivered by or on behalf of the Borrower or any
Subsidiary in accordance with or pursuant to any Loan Document, nor any statement,
representation or warranty provided to the Administrative Agent in writing in connection
with the negotiation or preparation of (i) the Loan Documents (other than the First
Amendment Documents) through the Closing Date or (ii) the First Amendment
61
Documents through
the First Amendment Effective Date, contains any misrepresentation or untrue statement of
material fact or omits to state a material fact necessary, in light of the circumstance
under which it was made, in order to make any such representation or statement contained
herein or therein not misleading in any material respect.
(k) No Consents, Etc. Neither the respective businesses or properties of the
Borrower or any Subsidiary, nor any relationship between the Borrower or any Subsidiary and
any other Person, nor any circumstance in connection with the execution, delivery and
performance of the Loan Documents and the transactions contemplated thereby is such as to
require a material consent, approval or authorization of, or filing, registration or
qualification with, any Governmental Authority or other authority or any other Person on the
part of the Borrower or any Subsidiary as a condition to the execution, delivery and
performance of, or consummation of the transactions contemplated by, this Agreement or the
other Loan Documents or if so, such material consent, approval, authorization, filing,
registration or qualification has been obtained or effected, as the case may be and is in
full force and effect. As of the First Amendment Effective Date, and subject to Section
11.17, the Borrower and its Subsidiaries have obtained the consent of the Manufacturers
set forth on Schedule 6.1(k) to the Borrower’s or such Subsidiary’s execution,
delivery and performance of the Loan Documents.
(l) Employee Benefit Plans.
(i) The Borrower and each ERISA Affiliate is in material compliance with all
applicable provisions of ERISA and the regulations and published interpretations
thereunder and in material compliance with all Foreign Benefit Laws with respect to
all Employee Benefit Plans except for any required amendments for which the remedial
amendment period as defined in Section 401(b) of the Code has not yet expired. Each
Employee Benefit Plan that is intended to be qualified under Section 401(a) of the
Code has been determined or the Borrower or its Subsidiaries is in the process of
obtaining a determination by
the Internal Revenue Service to be so qualified, each trust related to such
plan has been determined to be exempt under Section 501(a) of the Code, and each
Employee Benefit Plan subject to any Foreign Benefit Law has received the required
approvals by any Governmental Authority regulating such Employee Benefit Plan or the
Borrower or its Subsidiaries is in the process of obtaining such determination or
approvals. No material liability has been incurred by the Borrower or any ERISA
Affiliate which remains unsatisfied for any taxes or penalties with respect to any
Employee Benefit Plan or any Multiemployer Plan;
(ii) Neither the Borrower nor any ERISA Affiliate has (a) engaged in a
nonexempt prohibited transaction described in Section 4975 of the Code or Section
406 of ERISA affecting any of the Employee Benefit Plans or the trusts created
thereunder which could subject any such Employee Benefit Plan or trust to a material
tax or penalty on prohibited transactions imposed under Internal Revenue Code
Section 4975 or ERISA, (b) incurred any accumulated funding deficiency with respect
to any Employee Benefit Plan, whether or not waived, or any other liability to the
PBGC which remains outstanding other than the payment
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of premiums and there are no
premium payments which are due and unpaid, (c) failed to make a material required
contribution or payment to a Multiemployer Plan, (d) failed to make a required
installment or other required payment under Section 412 of the Code, Section 302 of
ERISA or the terms of such Employee Benefit Plan, or (e) failed to make a required
contribution or payment, or otherwise failed to operate in compliance with any
Foreign Benefit Law regulating any Employee Benefit Plan;
(iii) No Termination Event has occurred or is reasonably expected to occur with
respect to any Pension Plan or Multiemployer Plan, and neither the Borrower nor any
ERISA Affiliate has incurred any unpaid withdrawal liability with respect to any
Multiemployer Plan;
(iv) Except as provided in Schedule 6.1(l), the present value of all
vested accrued benefits under each Employee Benefit Plan which is subject to Title
IV of ERISA, or the funding of which is regulated by any Foreign Benefit Law did
not, as of the most recent valuation date for each such plan, exceed the then
current value of the assets of such Employee Benefit Plan allocable to such
benefits;
(v) To the best of the Borrower’s knowledge, each Employee Benefit Plan which
is subject to Title IV of ERISA or the funding of which is regulated by any Foreign
Benefit Law, maintained by the Borrower or any ERISA Affiliate, has been
administered in accordance with its terms in all material respects and is in
compliance in all material respects with all applicable requirements of ERISA,
applicable Foreign Benefit Law and other applicable laws, regulations and rules;
(vi) Assuming that none of the Lenders is, is acting on behalf of, or is an
entity the assets of which constitute the assets of an “employee benefit plan” (as
defined in Section 3(3) of ERISA) or a “plan” (as defined in Section 4975 of
the Code) with respect to which the Borrower is a “party in interest” (as
defined in Section 3(14) of ERISA) or a “disqualified person” (as defined in Section
4975 of the Code), the consummation of the Loans and the issuance of the Letters of
Credit provided for herein will not involve any prohibited transaction under ERISA
which is not subject to a statutory or administrative exemption; and
(vii) No material proceeding, claim, lawsuit and/or investigation exists or, to
the best knowledge of the Borrower after due inquiry, is threatened concerning or
involving any Employee Benefit Plan.
(m) No Default. There does not exist any Default or Event of Default.
(n) Environmental Laws. Except as listed on Schedule 6.1(n) and except
as would not have a Material Adverse Effect, the Borrower and each Subsidiary is in
compliance with all applicable Environmental Laws and has been issued and currently
maintains all required federal, state and local permits, licenses, certificates and
approvals. Except as listed on Schedule 6.1(n) and except as would not have a
Material Adverse
63
Effect, neither the Borrower nor any Subsidiary has been notified of any
pending or threatened action, suit, proceeding or investigation, and neither the Borrower
nor any Subsidiary is aware of any facts, which (a) calls into question, or could reasonably
be expected to call into question, compliance by the Borrower or any Subsidiary with any
Environmental Laws, (b) seeks, or could reasonably be expected to form the basis of a
meritorious proceeding, to suspend, revoke or terminate any license, permit or approval
necessary for the operation of the Borrower’s or any Subsidiary’s business or facilities or
for the generation, handling, storage, treatment or disposal of any Hazardous Materials, or
(c) seeks to cause, or could reasonably be expected to form the basis of a meritorious
proceeding to cause, any property of the Borrower or any Subsidiary to be subject to any
restrictions on ownership, use, occupancy or transferability under any Environmental Law.
ARTICLE VII
Affirmative Covenants
Until the Facility Termination Date, unless the Required Lenders shall otherwise consent in
writing, the Borrower will, and where applicable will cause each Subsidiary to:
7.1 Financial Reports, Etc. (a) as soon as practical and in any event within 90 days
after the end of each Fiscal Year of the Borrower, deliver or cause to be delivered to the
Administrative Agent and each Lender (i) the consolidated balance sheets of the Borrower and its
Subsidiaries, with the notes thereto, the related consolidated statements of operations, cash
flows, and shareholders’ equity and the respective notes thereto for such Fiscal Year, setting
forth comparative financial statements for the preceding Fiscal Year, all prepared in accordance
with GAAP applied on a Consistent Basis and containing opinions of KPMG LLP, or other such
independent certified public accountants selected by the Borrower and approved by the
Administrative Agent (such
approval not to be unreasonably withheld), which are unqualified as to the scope of the audit
performed and as to the “going concern” status of the Borrower; and (ii) a Compliance Certificate
of an Authorized Representative as to the existence of any Default or Event of Default and
demonstrating compliance with Section 8.1 of this Agreement;
(b) as soon as practical and in any event within 55 days after the end of each quarterly
period (except the last reporting period of the Fiscal Year), deliver to the Administrative Agent
and each Lender (i) the consolidated balance sheet of the Borrower and its Subsidiaries as of the
end of such reporting period, the related consolidated statements of operations, cash flows, and
shareholders’ equity for such reporting period and for the period from the beginning of the Fiscal
Year through the end of such reporting period, accompanied by a certificate of an Authorized
Representative to the effect that such financial statements present fairly the financial position
of the Borrower and its Subsidiaries as of the end of such reporting period and the results of
their operations and the changes in their financial position for such reporting period, in
conformity with the standards set forth in Section 6.1(e)(i) with respect to interim
financials, and (ii) a Compliance Certificate of an Authorized Representative as to the existence
of any Default or Event of Default and containing computations for such quarter comparable to that
required pursuant to Section 7.1(a)(ii);
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(c) with respect to any financial statements required by Section 7.1(a)(i), either
(i) include a footnote in such financial statements stating that, as at the end of the
Fiscal Year covered by such financial statements, the Borrower was in compliance with all
financial covenants set forth in this Agreement, or if the Borrower was in default under any
such financial covenant, describing such default, and specifying the nature and period of
existence thereof; or
(ii) deliver to the Administrative Agent and each Lender (together with the delivery of
such financial statements) a letter from the Borrower’s accountants specified in Section
7.1(a)(i) stating that in performing the audit necessary to render an opinion on the
financial statements delivered under Section 7.1(a)(i), they obtained no knowledge
of any default by the Borrower in complying with the financial covenants set forth in this
Agreement; or if the accountants have obtained knowledge of such default, a statement
specifying the nature and period of existence thereof;
(d) promptly upon their becoming available to the Borrower, the Borrower shall deliver to the
Administrative Agent and each Lender a copy of (i) all regular or special reports or effective
registration statements which the Borrower or any Subsidiary shall file with the Securities and
Exchange Commission (or any successor thereto) or any securities exchange, (ii) any proxy statement
distributed by the Borrower to its shareholders, bondholders or the financial community in general,
and (iii) any management letter or other report submitted to the Borrower or any of its
Subsidiaries by independent accountants in connection with any annual, interim or special audit of
the Borrower or any of its Subsidiaries;
(e) promptly upon an Executive Officer obtaining actual knowledge thereof, deliver to the
Administrative Agent notice of any announcement by any Rating Agency of any change in any Rating or
other announcement as to the Borrower; and
(f) promptly, from time to time, deliver or cause to be delivered to the Administrative Agent
and each Lender such other information regarding Borrower’s and any Subsidiary’s operations,
business affairs and financial condition as the Administrative Agent or such Lender may reasonably
request.
The Administrative Agent and the Lenders are hereby authorized to deliver a copy of any such
financial or other information delivered hereunder to the Lenders (or any Affiliate of any Lender)
or to the Administrative Agent, to any Governmental Authority having jurisdiction over the
Administrative Agent or any of the Lenders pursuant to any written request therefor or in the
ordinary course of examination of loan files, or to any other Person who shall acquire or consider
the assignment of, or acquisition of any participation interest in, any Obligation permitted by
this Agreement, subject to Section 11.15.
Financial statements required to be delivered by the Borrower pursuant to clauses (a)(i) and
(b)(i) of this Section 7.1 shall be deemed to have been delivered on the date on which the
Borrower causes such financial statements, or reports containing such financial statements, to be
posted on the Internet at xxx.xxx.xxx or at such other website identified by the Borrower in a
65
notice to the Administrative Agent and the Lenders and that is accessible by the Lenders without
charge.
7.2 Maintain Properties. Maintain all properties necessary to its operations in good
working order and condition (ordinary wear and tear excepted), make all needed repairs,
replacements and renewals to such properties, and maintain free from Liens (other than Liens
permitted by Section 8.3) all trademarks, trade names, patents, copyrights, trade secrets,
know-how, and other intellectual property and proprietary information (or adequate licenses
thereto), in each case as are reasonably necessary to conduct its business as currently conducted
or as contemplated hereby, all in accordance with prudent business practices.
7.3 Existence, Qualification, Etc. Do or cause to be done all things necessary to
preserve and keep in full force and effect its existence and all material rights and franchises,
trade names, trademarks and permits, except to the extent conveyed or permitted in connection with
a transaction permitted under Section 8.4 hereof, and maintain its license or qualification
to do business as a foreign corporation and good standing in each jurisdiction in which its
ownership or lease of property or the nature of its business makes such license or qualification
necessary, except, with respect to any of the foregoing, where any failure to do so could not
reasonably be expected to have a Material Adverse Effect.
7.4 Regulations and Taxes. Comply in all material respects with all statutes and governmental regulations and pay all
taxes, assessments, governmental charges, claims for labor, supplies, rent and any other obligation
which, if unpaid, might become a Lien against any of its properties except liabilities being
contested in good faith and against which adequate reserves have been established and except, with
respect to any of the foregoing, where any failure to do so could not reasonably be expected to
have a Material Adverse Effect.
7.5 Insurance. (i) Keep all of its insurable properties adequately insured at all
times with responsible insurance carriers or self-insured against loss or damage by fire and other
hazards as are customarily insured against by similar businesses owning such properties similarly
situated, (ii) maintain general public liability insurance at all times with responsible insurance
carriers or self-insured against liability on account of damage to persons and property having such
limits, deductibles, exclusions and co-insurance and other provisions providing coverage similar to
that specified in Schedule 7.5 attached hereto, such insurance policies to be in form
reasonably satisfactory to the Administrative Agent, and (iii) maintain insurance under all
applicable workers’ compensation laws (or in the alternative, maintain required reserves if
self-insured for workers’ compensation purposes).
7.6 True Books. Keep true books of record and account in which full, true and correct
entries will be made of all of its dealings and transactions in accordance with customary business
practices, and set up on its books such reserves as may be required by GAAP with respect to
doubtful accounts and all taxes, assessments, charges, levies and claims and with respect to its
business in general, and include such reserves in interim as well as year-end financial statements.
7.7 Right of Inspection. Permit any Person designated by any Lender or the
Administrative Agent at the Lender’s or Administrative Agent’s expense, as the case may be, to
66
visit and inspect any of the properties, corporate books and financial reports of the Borrower and
its Subsidiaries, and to discuss their respective affairs, finances and accounts with their
principal officers and independent certified public accountants, all at reasonable times, at
reasonable intervals and with reasonable prior notice.
7.8 Observe all Laws. Conform to and duly observe in all material respects all laws,
rules and regulations and all other valid requirements of any Governmental Authority (including
Environmental Laws) with respect to the conduct of its business the non-compliance with which could
reasonably be expected to have a Material Adverse Effect.
7.9 Governmental Licenses. Obtain and maintain all licenses, permits, certifications
and approvals of all applicable Governmental Authorities as are required for the conduct of its
business as currently
conducted and as contemplated by the Loan Documents, except where the failure to do so could
not reasonably be expected to have a Material Adverse Effect.
7.10 Covenants Extending to Subsidiaries. Cause each of its Subsidiaries to do with
respect to itself, its business and its assets, each of the things required of the Borrower in
Sections 7.2 through 7.9, inclusive to the extent the failure to do so could
reasonably be expected to have a Material Adverse Effect.
7.11 Officer’s Knowledge of Default. Upon any Executive Officer of the Borrower
obtaining knowledge of any Default or Event of Default hereunder or under any other obligation of
the Borrower or any Subsidiary to any Lender, or any event, development or occurrence which could
reasonably be expected to have a Material Adverse Effect, cause such officer or an Authorized
Representative to promptly notify the Administrative Agent of the nature thereof, the period of
existence thereof, and what action the Borrower or any Subsidiary proposes to take with respect
thereto.
7.12 Suits or Other Proceedings. Upon any Executive Officer of the Borrower obtaining
knowledge of any litigation or other proceedings being instituted against the Borrower or any
Subsidiary, or any attachment, levy, execution or other process being instituted against any assets
of the Borrower or any Subsidiary that could reasonably be expected to result in a Material Adverse
Effect, promptly deliver to the Administrative Agent written notice thereof stating the nature and
status of such litigation, dispute, proceeding, levy, execution or other process.
7.13 Notice of Discharge of Hazardous Material or Environmental Complaint. Promptly
provide to the Administrative Agent true, accurate and complete copies of any and all notices,
complaints, orders, directives, claims, or citations received by the Borrower or any Subsidiary
relating to any (a) violation or alleged violation by the Borrower or any Subsidiary of any
applicable Environmental Laws or OSHA; (b) release or threatened release by the Borrower or any
Subsidiary of any Hazardous Material, except where occurring legally; or (c) liability or alleged
liability of the Borrower or any Subsidiary for the costs of cleaning up, removing, remediating or
responding to a release of Hazardous Materials, which violation, alleged violation, release,
threatened release, actual liability or threatened liability described in clause (a), (b) or (c)
could reasonably be expected to result in a Material Adverse Effect.
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7.14 Environmental Compliance. If the Borrower or any Subsidiary shall receive notice
from any Governmental Authority that the Borrower or any Subsidiary has violated any applicable
Environmental Laws in any respect that could reasonably be expected to result in a Material Adverse
Effect, the Borrower shall promptly (and in any event within the time period permitted by the
applicable Governmental Authority) remove or remedy, or the Borrower shall cause the applicable
Subsidiary to remove or remedy, such violation.
7.15 Employee Benefit Plans.
(a) With reasonable promptness, and in any event within thirty (30) days thereof, give notice
to the Administrative Agent of (i) the establishment of any new Pension Plan (which notice shall
include a copy of such plan), (ii) the commencement of contributions to any funded Employee Benefit
Plan to which the Borrower or any of its ERISA Affiliates was not previously contributing, (iii)
any material increase in the benefits of any existing funded Employee Benefit Plan, (iv) each
funding waiver request filed with respect to any Pension Plan and all communications received or
sent by the Borrower or any ERISA Affiliate with respect to such request and (v) the failure of the
Borrower or any ERISA Affiliate to make a required installment or payment under Section 302 of
ERISA or Section 412 of the Code (in the case of Employee Benefit Plans regulated by the Code or
ERISA) or under any Foreign Benefit Law (in the case of Employee Benefit Plans regulated by any
Foreign Benefit Law) by the due date;
(b) Promptly and in any event within fifteen (15) days of becoming aware of the occurrence or
forthcoming occurrence of any (a) Termination Event or (b) nonexempt “prohibited transaction,” as
such term is defined in Section 406 of ERISA or Section 4975 of the Code, in connection with any
Employee Benefit Plan or any trust created thereunder, deliver to the Administrative Agent a notice
specifying the nature thereof, what action the Borrower or any ERISA Affiliate has taken, is taking
or proposes to take with respect thereto and, when known, any action taken or threatened by the
Internal Revenue Service, the Department of Labor or the PBGC with respect thereto; and
(c) With reasonable promptness but in any event within fifteen (15) days for purposes of
clauses (a), (b) and (c), deliver to the Administrative Agent copies of (a) any unfavorable
determination letter from the Internal Revenue Service regarding the qualification of an Employee
Benefit Plan under Section 401(a) of the Code, (b) all notices received by the Borrower or any
ERISA Affiliate of the PBGC’s or any Governmental Authority’s intent to terminate any Pension Plan
or to have a trustee appointed to administer any Pension Plan, (c) each Schedule B (Actuarial
Information) to the annual report (Form 5500 Series) filed by the Borrower or any ERISA Affiliate
with the Internal Revenue Service with respect to each Employee Benefit Plan and (d) all notices
received by the Borrower or any ERISA Affiliate from a Multiemployer Plan sponsor concerning the
imposition or amount of withdrawal liability pursuant to Section 4202 of ERISA. The Borrower will
notify the Administrative Agent in writing within five (5) Business Days of the Borrower or any
ERISA Affiliate obtaining knowledge or reason to know that the Borrower or any ERISA Affiliate has
filed or intends to file a notice of intent to terminate any Pension Plan under a distress
termination within the meaning of Section 4041(c) of ERISA.
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7.16 Continued Operations. Continue at all times (i) to conduct its business and
engage principally in the same or complementary line or lines of business substantially as
heretofore conducted (subject to the right to make Permitted Acquisitions) and (ii) preserve,
protect and maintain free from Liens (other than Liens permitted under Section 8.3 hereof)
its material patents, copyrights, licenses,
trademarks, trademark rights, trade names, trade name rights, trade secrets and know-how
necessary or reasonably required in the conduct of its operations.
7.17 Use of Proceeds. Use the proceeds of the Loans solely for the purposes specified
in Section 2.16 hereof.
7.18 New Subsidiaries. Cause to be delivered to the Administrative Agent each of the
following (by the earlier of (I) the date that any Subsidiary guarantees any obligations under the
Senior Notes or the Year 2006 Senior Notes or the Senior Note Indenture or the Year 2006 Senior
Note Indenture and (II) the date that is thirty (30) days after the acquisition or creation of any
Subsidiary other than an Excluded Subsidiary):
(a) a Facility Guaranty executed by such Subsidiary substantially in the form of
Exhibit J;
(b) an opinion of counsel to the Subsidiary dated as of the date of delivery of the
Facility Guaranty provided for in this Section 7.18 and addressed to the
Administrative Agent and the Lenders, in form and substance reasonably acceptable to the
Administrative Agent (which opinion shall include opinions regarding such Subsidiary and
Facility Guaranty substantially similar to the opinions of counsel delivered pursuant to
Section 5.1(a), and which opinion may include assumptions and qualifications of
similar effect to those contained in the opinions of counsel delivered pursuant to
Section 5.1(a)); and
(c) current copies of the Organizational Documents and Operating Documents of such
Subsidiary, minutes of duly called and conducted meetings (or duly effected consent actions)
of the Board of Directors, partners, or appropriate committees thereof (and, if required by
such Organizational Documents, Operating Documents or applicable law, of the shareholders,
members or partners) of such Subsidiary authorizing the actions and the execution and
delivery of documents described in this Section 7.18.
ARTICLE VIII
Negative Covenants
Until the Facility Termination Date unless the Required Lenders shall otherwise consent in
writing, the Borrower will not, nor will it permit any Subsidiary to:
8.1 Financial Covenants.
(a) Consolidated Leverage Ratio. Permit the Consolidated Leverage Ratio as at the
last day of any Four-Quarter Period to be greater than 2.75 to 1.00.
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(b) Consolidated Total Capitalization. Permit at any time the Consolidated
Capitalization Ratio to be greater than 0.65 to 1.00.
8.2 Indebtedness. Incur, create or assume any Funded Indebtedness (other than
Permitted Indebtedness) unless, after giving pro forma effect thereto, the Borrower shall be in
compliance with Section 8.1 (with Consolidated EBITDA, for such purpose, being calculated
in respect of the most recent period of four consecutive fiscal quarters for which financial
statements are available).
8.3 Liens. Incur, create or permit to exist any Lien of any nature whatsoever with
respect to any property or assets now owned or hereafter acquired by the Borrower or any of its
Subsidiaries, other than
(i) Liens existing as of the First Amendment Effective Date and as set forth in
Schedule 8.3 attached hereto;
(ii) Liens imposed by law for taxes, assessments or charges of any Governmental
Authority for claims not yet due or, Liens for judgments or levies, in each case which are
being contested in good faith by appropriate proceedings diligently pursued and with respect
to which adequate reserves or other appropriate provisions are being maintained in
accordance with GAAP;
(iii) statutory Liens of landlords and Liens of carriers, warehousemen, mechanics,
materialmen, laborers, employees or suppliers and other Liens imposed by law or created in
the ordinary course of business and in existence less than 120 days from the date of
creation thereof for amounts not yet due or which are being contested in good faith by
appropriate proceedings and with respect to which adequate reserves or other appropriate
provisions are being maintained in accordance with GAAP;
(iv) Liens incurred or deposits made in the ordinary course of business (including,
without limitation, surety bonds and appeal bonds) in connection with workers’ compensation,
unemployment insurance and other types of social security benefits or to secure the
performance of tenders, bids, leases, contracts (other than for the repayment of
Indebtedness), self insurance general liability insurance programs, public or statutory
obligations, surety and appeal bonds posted in the ordinary course of business, letters of
credit issued in the ordinary course of business and other similar obligations or arising as
a result of progress payments under government contracts;
(v) easements (including, without limitation, reciprocal easement agreements and
utility agreements), licenses, rights of others for rights-of-way, utilities, sewers,
electric lines, telephone or telegraph lines and similar purposes, covenants, consents,
reservations, encroachments, variations and zoning and other restrictions, charges or
encumbrances (whether or not recorded), which do not interfere materially with the ordinary
conduct of the business of the Borrower or any Subsidiary and which do not
materially detract from the value of the property to which they attach or materially
impair the use thereof to the Borrower or any Subsidiary;
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(vi) Liens on real property and improvements securing (A) Mortgage Facilities of the
Borrower or any Guarantor in an aggregate principal amount not to exceed $500,000,000 at any
time outstanding and (B) Rate Hedging Obligations related to such Mortgage Facilities (which
Rate Hedging Obligations are owed to any of the respective lenders under such Mortgage
Facilities and secured by the same assets as such Mortgage Facilities), provided that the
amount of Indebtedness under any Mortgage Facility does not exceed eighty-five percent (85%)
of the fair market value of the real property and improvements securing such Indebtedness as
of the date such Liens are granted on such real property and improvements;
(vii) Liens to secure the refinancing of any Indebtedness described on Schedule
8.3 to the extent such Liens encumber substantially the same assets in substantially the
same manner as the Liens securing the debt being refinanced or to the extent such Liens
constitute Liens permitted under this Section 8.3; and any extension, renewal,
refinancing or replacement in whole or in part of any Lien described in the foregoing
clauses (i) through (vi) so long as no additional collateral is granted as security;
(viii) Liens on claims of the Borrower or any Subsidiary against Persons renting or
leasing Vehicles, Persons damaging Vehicles or Persons issuing applicable insurance coverage
for such Persons, which claims relate to damage to Vehicles, to the extent that such damage
exceeds the renter’s or lessee’s collision damage waiver limitation or insurance deductible;
(ix) Liens securing Vehicle Receivables Indebtedness and Vehicle Secured Indebtedness
and Rate Hedging Obligations related to such Indebtedness, which Rate Hedging Obligations
are owed to any of the respective lenders of such Indebtedness and secured by the same
assets as such Indebtedness; and
(x) Liens not otherwise permitted hereby securing Indebtedness of the Borrower and its
Subsidiaries so long as, on the date any such Lien is granted or any such Indebtedness is
incurred, after giving effect thereto, the aggregate principal amount of Indebtedness
described in this clause (x) shall not exceed 15% of Consolidated Tangible Unencumbered
Assets (calculated using Consolidated Tangible Unencumbered Assets as of the most recently
ended fiscal quarter of the Borrower for which financial statements are available).
8.4 Merger, Consolidation or Fundamental Changes. (a) Sell, lease, transfer or
otherwise dispose of all or a majority of the assets of the Borrower and its Subsidiaries (taken as
a whole), (b) consolidate with or merge into any other Person, or (c) permit any other Person to
merge into it or (d) in the case of the Borrower, liquidate, wind-up or dissolve; provided,
however, (i) any Subsidiary of the Borrower may merge or transfer all or substantially all of its
assets into or consolidate with any other Subsidiary of the Borrower (which, for the avoidance of
doubt, shall be the case so long as the surviving or
continuing entity shall be a Subsidiary and, if not a corporation, directly or indirectly
controlled by the Borrower, upon consummation of such merger, transfer or consolidation), (ii) any
Person may merge with the Borrower if the Borrower shall be the survivor thereof and such merger
shall not cause, create or result in the occurrence of any Default or Event of Default hereunder,
(iii) any Subsidiary may merge with or transfer
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substantially all of its assets to or consolidate
with any other Person so long as such merger, transfer or consolidation does not constitute a sale,
lease, transfer or other disposition of all or a majority of the assets of the Borrower and its
Subsidiaries (taken as a whole) to such other Person and (iv) any Person (other than the Borrower)
may consolidate with or merge into any Subsidiary.
8.5 Transactions with Affiliates. Other than transactions (x) permitted under
Section 8.4 hereof, (y) between or among one or more Loan Parties or (z) share repurchases
of the Borrower’s common stock and the repurchases of the Senior Notes in connection with the
Transaction, enter into any transaction after the date hereof, including, without limitation, the
purchase, sale, leasing or exchange of property, real or personal, or the rendering of any service,
with any Affiliate of the Borrower, except (a) that such Persons may render services to the
Borrower or its Subsidiaries for compensation at the same rates generally paid by Persons engaged
in the same or similar businesses for the same or similar services and (b) in the ordinary course
of the Borrower’s (or any Subsidiary’s) business and upon fair and reasonable terms no less
favorable to the Borrower (or any Subsidiary) than would be obtained in a comparable arm’s-length
transaction with a Person not an Affiliate, provided, that share repurchases of the
Borrower’s common stock shall not be restricted to the ordinary course of the Borrower’s business.
8.6 Compliance with ERISA, the Code and Foreign Benefit Laws. With respect to any
Pension Plan, Employee Benefit Plan or Multiemployer Plan:
(a) permit the occurrence of any Termination Event which is reasonably likely to result
in a liability on the part of the Borrower or any ERISA Affiliate to the PBGC or to any
Governmental Authority; or
(b) except as provided in Schedule 6.1(l), permit the present value of all
benefit liabilities under all Pension Plans to exceed the current value of the assets of
such Pension Plans allocable to such benefit liabilities by a material amount; or
(c) except as provided in Schedule 6.1(l), permit any accumulated funding
deficiency (as defined in Section 302 of ERISA and Section 412 of the Code) with respect to
any Pension Plan, whether or not waived; or
(d) fail to make any material contribution or payment to any Multiemployer Plan which
the Borrower or any ERISA Affiliate may be required to make under any agreement relating to
such Multiemployer Plan, or any law pertaining thereto; or
(e) engage, or permit any Borrower or any ERISA Affiliate to engage, in any prohibited
transaction under Section 406 of ERISA or Sections 4975 of the Code for
which a civil penalty pursuant to Section 502(I) of ERISA or a tax pursuant to Section
4975 of the Code may be imposed; or
(f) permit the establishment of any Employee Benefit Plan providing post-retirement
welfare benefits or establish or amend any Employee Benefit Plan which establishment or
amendment could result in liability to the Borrower or any ERISA Affiliate or increase the
obligation of the Borrower or any ERISA Affiliate, in each case,
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to a Multiemployer Plan
which annual liability or increase, individually or together with all similar liabilities
and increases, is in excess of $500,000; or
(g) fail, or permit the Borrower or any ERISA Affiliate to fail, to establish, maintain
and operate each Employee Benefit Plan in compliance in all material respects with the
provisions of ERISA, the Code, all applicable Foreign Benefit Laws and all other applicable
laws and the regulations and interpretations thereof.
8.7 Fiscal Year. Change the Borrower’s Fiscal Year.
8.8 Change in Control. Permit at any time a Change in Control.
8.9 Limitations on Upstreaming. Enter into any agreement restricting or limiting the
payment of dividends or other distributions from any Subsidiary to the Borrower or to any other
Subsidiary owning Subsidiary Securities of such Subsidiary; provided that the foregoing
shall not apply to restrictions or conditions (i) imposed by law or any Loan Document, (ii)
existing on the date hereof identified on Schedule 8.9, (iii) customarily contained in
agreements relating to the sale of a Subsidiary pending such sale, provided such restrictions and
conditions apply only to the Subsidiary that is to be sold and such sale is permitted hereunder,
(iv) in existence at the time a Person becomes a Subsidiary and not incurred in connection with, or
in contemplation of, such Person becoming a Subsidiary, (v) contained in (A) any agreement in
respect of Vehicle Secured Indebtedness or Vehicle Receivables Indebtedness or (B) any other
agreement of an entity or related to assets acquired by or merged into or consolidated with the
Borrower or any Subsidiary so long (in the case of clause (B)) as such encumbrance or restriction
was not entered into in connection with, or in contemplation of, such acquisition, merger or
consolidation, (vi) customary provisions restricting subletting or assignment of any lease
governing any leasehold interest of the Borrower or any Subsidiary, or (vii) covenants in franchise
agreements and/or framework agreements with Manufacturers customary for franchise agreements and/or
framework agreements in the automobile retailing industry.
8.10 Subsidiary Guaranties. Permit any Subsidiary to enter into any guaranty
agreement, or incur any Guaranty Obligation, with respect to any Indebtedness unless such
Subsidiary has executed and delivered a Facility Guaranty to the Administrative Agent.
8.11 Manufacturer Consents.
(a) Terminate, revoke or violate the terms of any Manufacturer Consent or amend or modify the
terms of any Manufacturer consent in any manner adverse to the interests of the Lenders.
(b) Authorize any Manufacturer to amend, modify, terminate, revoke or violate the terms of
any Manufacturer Consent or to amend or modify the terms of any Manufacturer consent in each case
in any manner adverse to the interests of the Lenders.
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ARTICLE IX
Events of Default and Acceleration
9.1 Events of Default. If any one or more of the following events (herein called
“Events of Default”) shall occur for any reason whatsoever (and whether such occurrence shall be
voluntary or involuntary or come about or be effected by operation of law or pursuant to or in
compliance with any judgment, decree or order of any court or any order, rule or regulation of any
administrative or governmental body), that is to say:
(a) if default shall be made in the due and punctual payment of the principal of any
Loan or Reimbursement Obligation, when and as the same shall be due and payable whether
pursuant to any provision of Article II or Article III hereof, at maturity,
by acceleration or otherwise; or
(b) if default shall be made in the due and punctual payment of any amount of interest
on any Loan or of any fees or other amounts payable to the Lenders, the Administrative
Agent, any Issuing Banks or JPMorgan Chase Bank under the Loan Documents on the date on
which the same shall be due and payable and such failure to pay shall continue for a period
of three Business Days (after receipt of written notice from the Administrative Agent with
respect to amounts other than interest); or
(c) if default shall be made in the performance or observance of any covenant set forth
in Sections 7.7, 7.11, 7.17, 7.18 or Article VIII
hereof; or
(d) if a default shall be made in the performance or observance of, or shall occur
under, any covenant, agreement or provision contained in any Loan Document (other than as
described in clauses (a), (b) or (c) above) and such default shall continue for 30 or more
days after the earlier of receipt of notice of such default by an Authorized Representative
from the Administrative Agent or the Borrower becomes aware of such default, or if any Loan
Document ceases to be in full force and effect (other than by reason of any action by the
Administrative Agent), or if without the written consent of the
Administrative Agent and the Lenders, this Agreement or any other Loan Document shall
be disaffirmed by the Borrower or any of its Subsidiaries or shall terminate, be terminable
or be terminated or become void or unenforceable for any reason whatsoever (other than in
accordance with its terms in the absence of default or by reason of any action by the
Administrative Agent or any Lender); or
(e) if a default shall occur, which is not waived, (i) in the payment of any principal,
interest, premium or other amounts with respect to any Indebtedness (other than the Loans)
of the Borrower or of any Subsidiary in an outstanding aggregate amount not less than
$20,000,000, or (ii) in the performance, observance or fulfillment of any term or covenant
contained in any agreement or instrument under or pursuant to which any such Indebtedness
described in clause (i) above may have been issued, created, assumed, guaranteed or secured
by the Borrower or any Subsidiary, and in the case of each of clauses (i) and (ii) such
default shall continue for more than the period of grace, if
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any, therein specified, and if
such default shall permit the holder of any such Indebtedness to accelerate the maturity
thereof; or
(f) if any representation, warranty or other statement of fact contained herein or any
other Loan Document or in any writing, certificate, report or statement at any time
furnished to the Administrative Agent or any Lender by or on behalf of the Borrower or any
Subsidiary pursuant to or in connection with this Agreement or the other Loan Documents, or
otherwise, shall be false or misleading in any material respect when given or made or deemed
given or made; or
(g) if the Borrower or any Subsidiary shall be unable to pay its debts generally as
they become due; file a petition to take advantage of any insolvency, reorganization,
bankruptcy, receivership or similar law, domestic or foreign; make an assignment for the
benefit of its creditors; commence a proceeding for the appointment of a receiver, trustee,
liquidator or conservator of itself or of the whole or any substantial part of its property;
file a petition or answer seeking reorganization or arrangement or similar relief under the
federal bankruptcy laws or any other applicable law or statute, federal, state or foreign;
or
(h) if a court of competent jurisdiction shall enter an order, judgment or decree
appointing a custodian, receiver, trustee, liquidator or conservator of the Borrower or any
Subsidiary or of the whole or any substantial part of its properties and such order,
judgment or decree continues unstayed and in effect for a period of sixty (60) days, or
approve a petition filed against the Borrower or any Subsidiary seeking reorganization or
arrangement or similar relief under the federal bankruptcy laws or any other applicable law
or statute of the United States of America or any state or foreign country, province or
other political subdivision, which petition is not dismissed within sixty (60) days; or if,
under the provisions of any other law for the relief or aid of debtors, a court of competent
jurisdiction shall assume custody or control of the Borrower or any Subsidiary or of the
whole or any substantial part of its properties, which control is not relinquished within
sixty (60) days; or if there is commenced against the Borrower or any Subsidiary any
proceeding or petition seeking reorganization, arrangement or similar relief under the
federal bankruptcy laws or any other applicable law or statute of the United States of
America or any state or foreign country, province or other political subdivision which
proceeding or petition remains undismissed for a period of thirty (30) days; or if the
Borrower or any Subsidiary takes any action to indicate its consent to or approval of any
such proceeding or petition; or
(i) if (i) any judgments where the aggregate amount not covered by insurance (or the
amount as to which the insurer denies liability) is in excess of $10,000,000 are rendered
against the Borrower or any Subsidiary, or (ii) there are attachments, injunctions or
executions against any of the Borrower’s or any Subsidiary’s properties for an aggregate
amount in excess of $10,000,000; and such judgments, attachments, injunctions or executions
referred to in clauses (i) and (ii) above remain unpaid, unstayed, undischarged, unbonded or
undismissed for a period of thirty (30) days;
then, and in any such event and at any time thereafter, if such Event of Default or any other Event
of Default shall be continuing,
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(A) either or both of the following actions may be taken: (i) the
Administrative Agent may with the consent of the Required Lenders, and at the
direction of the Required Lenders shall, declare any obligation of the Lenders to
make further Loans or of the Issuing Banks to issue Letters of Credit terminated,
whereupon the obligation of each Lender to make further Loans or of the Issuing
Banks to issue Letters of Credit hereunder shall terminate immediately, and (ii) the
Administrative Agent shall at the direction of the Required Lenders, at their
option, declare by notice to the Borrower any or all of the Obligations to be
immediately due and payable, and the same, including all interest accrued thereon
and all other obligations of the Borrower to the Administrative Agent, the Lenders
and the Issuing Banks, shall forthwith become immediately due and payable without
presentment, demand, protest, notice or other formality of any kind, all of which
are hereby expressly waived, anything contained herein or in any instrument
evidencing the Obligations to the contrary notwithstanding; provided,
however, that notwithstanding the above, if there shall occur an Event of
Default under clause (g) or (h) above with respect to the Borrower, then the
obligation of the Lenders to lend and of the Issuing Banks to issue Letters of
Credit hereunder shall automatically terminate and any and all of the Obligations
shall be immediately due and payable without the necessity of any action by the
Administrative Agent or the Required Lenders or notice to the Administrative Agent
or the Lenders;
(B) at any time after the Administrative Agent has received the consent or
direction of the Required Lenders to take action under clause (A)(i) or (A)(ii)
above (or if an Event of Default described under clause (g) or (h) has occurred with
respect to the Borrower) the Borrower shall, upon demand of the Administrative Agent
or the Required Lenders, deposit cash with the Administrative Agent in an amount
equal to the amount of any Letters of Credit remaining undrawn or unpaid, as
collateral security for the repayment of any future drawings or payments under such
Letters of Credit and the Borrower shall forthwith deposit and pay such amounts and
such amounts shall be held by the
Administrative Agent as cash collateral for the Borrower’s obligations in
respect thereof; and
(C) the Administrative Agent and the Lenders shall have all of the rights and
remedies available under the Loan Documents or under any applicable law.
9.2 Administrative Agent to Act. In case any one or more Events of Default shall
occur and be continuing, the Administrative Agent may, and at the direction of the Required Lenders
shall, proceed to protect and enforce their rights or remedies either by suit in equity or by
action at law, or both, whether for the specific performance of any covenant, agreement or other
provision contained herein or in any other Loan Document, or to enforce the payment of the
Obligations or any other legal or equitable right or remedy.
9.3 Cumulative Rights. No right or remedy herein conferred upon the Lenders or the
Administrative Agent is intended to be exclusive of any other rights or remedies contained herein
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or in any other Loan Document, and every such right or remedy shall be cumulative and shall be in
addition to every other such right or remedy contained herein and therein or now or hereafter
existing at law or in equity or by statute, or otherwise.
9.4 No Waiver. No course of dealing between the Borrower and any Lender or the
Administrative Agent or any failure or delay on the part of any Lender or the Administrative Agent
in exercising any rights or remedies under any Loan Document or otherwise available to it shall
operate as a waiver of any rights or remedies and no single or partial exercise of any rights or
remedies shall operate as a waiver or preclude the exercise of any other rights or remedies
hereunder or of the same right or remedy on a future occasion.
9.5 Allocation of Proceeds. If an Event of Default has occurred and is continuing and
the maturity of the Loans has been accelerated pursuant to Article X hereof, all payments
received by the Administrative Agent hereunder, in respect of any principal of or interest on the
Obligations or any other amounts payable by the Borrower hereunder (other than amounts deposited
with the Administrative Agent pursuant to Section 9.1(B), which shall be applied to repay
any unreimbursed drawings or payments under the Letters of Credit) shall be applied by the
Administrative Agent in the following order:
(i) amounts due to the Issuing Banks, JPMorgan Chase Bank and the Lenders pursuant to
Sections 2.13, 3.4 and 11.5 hereof;
(ii) amounts due to (A) any Issuing Bank pursuant to Section 3.5 hereof, and
(B) the Administrative Agent pursuant to Section 2.13(c) hereof;
(iii) payments of interest on Loans, to be applied for the ratable benefit of the
Lenders;
(iv) payments of principal on Loans, to be applied for the ratable benefit of the
Lenders;
(v) payment of cash amounts to the Administrative Agent in respect of Outstanding
Letters of Credit pursuant to Section 9.1(B) hereof;
(vi) payments of all remaining Obligations, if any, to be applied for the ratable
benefit of the Lenders; and
(vii) any surplus remaining after application as provided for herein, to the Borrower
or otherwise as may be required by applicable law.
ARTICLE X
The Administrative Agent
10.1 Appointment. Each Lender hereby irrevocably designates and appoints the
Administrative Agent as the agent of such Lender under this Agreement and the other Loan Documents,
and each such Lender irrevocably authorizes the Administrative Agent, in such capacity, to take
such action on its behalf under the provisions of this Agreement and the other
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Loan Documents and
to exercise such powers and perform such duties as are expressly delegated to the Administrative
Agent by the terms of this Agreement and the other Loan Documents, together with such other powers
as are reasonably incidental thereto. Notwithstanding any provision to the contrary elsewhere in
this Agreement, the Administrative Agent shall not have any duties or responsibilities, except
those expressly set forth herein, or any fiduciary relationship with any Lender, and no implied
covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this
Agreement or any other Loan Document or otherwise exist against the Administrative Agent.
10.2 Delegation of Duties. The Administrative Agent may execute any of its duties
under this Agreement and the other Loan Documents by or through agents or attorneys in fact and
shall be entitled to advice of counsel concerning all matters pertaining to such duties. The
Administrative Agent shall not be responsible for the negligence or misconduct of any agents or
attorneys in fact selected by it with reasonable care.
10.3 Exculpatory Provisions. Neither any Agent nor any of their respective officers,
directors, employees, agents, attorneys in fact or affiliates shall be (i) liable for any action
lawfully taken or omitted to be taken by it or such Person under or in connection with this
Agreement or any other Loan Document (except to the extent that any of the foregoing are found by a
final and nonappealable
decision of a court of competent jurisdiction to have resulted from its or such Person’s own
gross negligence or willful misconduct) or (ii) responsible in any manner to any of the Lenders for
any recitals, statements, representations or warranties made by any Loan Party or any officer
thereof contained in this Agreement or any other Loan Document or in any certificate, report,
statement or other document referred to or provided for in, or received by the Agents under or in
connection with, this Agreement or any other Loan Document or for the value, validity,
effectiveness, genuineness, enforceability or sufficiency of this Agreement or any other Loan
Document or for any failure of any Loan Party a party thereto to perform its obligations hereunder
or thereunder. The Agents shall not be under any obligation to any Lender to ascertain or to
inquire as to the observance or performance of any of the agreements contained in, or conditions
of, this Agreement or any other Loan Document, or to inspect the properties, books or records of
any Loan Party.
10.4 Reliance by Administrative Agent. (a) The Administrative Agent shall be
entitled to rely, and shall be fully protected in relying, upon any instrument, writing,
resolution, notice, consent, certificate, affidavit, letter, telecopy, telex or teletype message,
statement, order or other document or conversation believed by it to be genuine and correct and to
have been signed, sent or made by the proper Person or Persons and upon advice and statements of
legal counsel (including counsel to the Borrower), independent accountants and other experts
selected by the Administrative Agent. The Administrative Agent may deem and treat the payee of any
Note as the owner thereof for all purposes unless a written notice of assignment, negotiation or
transfer thereof shall have been filed with the Administrative Agent. The Administrative Agent
shall be fully justified in failing or refusing to take any action under this Agreement or any
other Loan Document unless it shall first receive such advice or concurrence of the Required
Lenders (or, if so specified by this Agreement, all Lenders) as it deems appropriate or it shall
first be indemnified to its satisfaction by the Lenders against any and all liability and expense
that may be incurred by it by reason of taking or continuing to take any such action. The
Administrative Agent shall in all cases be fully protected in acting, or in refraining from acting,
under this
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Agreement and the other Loan Documents in accordance with a request of the Required
Lenders (or, if so specified by this Agreement, all Lenders), and such request and any action taken
or failure to act pursuant thereto shall be binding upon all the Lenders and all future holders of
the Loans.
(b) For purposes of determining compliance with the conditions specified in Section
5.1, each Lender shall be deemed to have consented to, approved or accepted or to be satisfied
with, each document or other matter either sent by the Administrative Agent to such Lender for
consent, approval, acceptance or satisfaction, or required thereunder to be consented to or
approved by or acceptable or satisfactory to a Lender.
10.5 Notice of Default. The Administrative Agent shall not be deemed to have
knowledge or notice of the occurrence of any Default or Event of Default unless the Administrative
Agent has received notice from a Lender or the Borrower referring to this Agreement, describing
such Default or Event of Default and stating that such notice is a “notice of default”. In the
event that the Administrative Agent receives such a notice, the Administrative Agent shall give
notice thereof
to the Lenders. The Administrative Agent shall take such action with respect to such Default
or Event of Default as shall be reasonably directed by the Required Lenders (or, if so specified by
this Agreement, all Lenders); provided that unless and until the Administrative Agent shall
have received such directions, the Administrative Agent may (but shall not be obligated to) take
such action, or refrain from taking such action, with respect to such Default or Event of Default
as it shall deem advisable in the best interests of the Lenders.
10.6 Non-Reliance on Agents and Other Lenders. Each Lender expressly acknowledges
that neither the Agents nor any of their respective officers, directors, employees, agents,
attorneys in fact or affiliates have made any representations or warranties to it and that no act
by any Agent hereafter taken, including any review of the affairs of a Loan Party or any affiliate
of a Loan Party, shall be deemed to constitute any representation or warranty by any Agent to any
Lender. Each Lender represents to the Agents that it has, independently and without reliance upon
any Agent or any other Lender, and based on such documents and information as it has deemed
appropriate, made its own appraisal of and investigation into the business, operations, property,
financial and other condition and creditworthiness of the Loan Parties and their affiliates and
made its own decision to make its Loans hereunder and enter into this Agreement. Each Lender also
represents that it will, independently and without reliance upon any Agent or any other Lender, and
based on such documents and information as it shall deem appropriate at the time, continue to make
its own credit analysis, appraisals and decisions in taking or not taking action under this
Agreement and the other Loan Documents, and to make such investigation as it deems necessary to
inform itself as to the business, operations, property, financial and other condition and
creditworthiness of the Loan Parties and their affiliates. Except for notices, reports and other
documents expressly required to be furnished to the Lenders by the Administrative Agent hereunder,
the Administrative Agent shall not have any duty or responsibility to provide any Lender with any
credit or other information concerning the business, operations, property, condition (financial or
otherwise), prospects or creditworthiness of any Loan Party or any affiliate of a Loan Party that
may come into the possession of the Administrative Agent or any of its officers, directors,
employees, agents, attorneys in fact or affiliates.
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10.7 Indemnification. The Lenders agree to indemnify each Agent in its capacity as
such (to the extent not reimbursed by the Borrower and without limiting the obligation of the
Borrower to do so to the extent required by Section 11.9 hereof), ratably according to
their respective Aggregate Exposure Percentages in effect on the date on which indemnification is
sought under this Section (or, if indemnification is sought after the date upon which the
Commitments shall have terminated and the Loans shall have been paid in full, ratably in accordance
with such Aggregate Exposure Percentages immediately prior to such date), from and against any and
all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind whatsoever that may at any time (whether before or after the
payment of the Loans) be imposed on, incurred by or asserted against such Agent in any way relating
to or arising out of, the Commitments, this Agreement, any of the other Loan Documents or any
documents contemplated by or referred to herein or therein or the transactions contemplated hereby
or thereby or any action taken or omitted by such Agent under or in connection with any
of the foregoing; provided that no Lender shall be liable for the payment of any
portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements that are found by a final and nonappealable decision of a court of
competent jurisdiction to have resulted from such Agent’s gross negligence or willful misconduct.
The agreements in this Section shall survive the payment of the Loans and all other amounts payable
hereunder.
10.8 Agent in its Individual Capacity. Each Agent and its affiliates may make loans
to, accept deposits from and generally engage in any kind of business with any Loan Party as though
such Agent were not an Agent. With respect to its Loans made or renewed by it and with respect to
any Letter of Credit issued or participated in by it, each Agent shall have the same rights and
powers under this Agreement and the other Loan Documents as any Lender and may exercise the same as
though it were not an Agent, and the terms “Lender” and “Lenders” shall include each Agent in its
individual capacity.
10.9 Successor Administrative Agent. The Administrative Agent may resign as
Administrative Agent upon 30 days’ notice to the Lenders and the Borrower. If the Administrative
Agent shall resign as Administrative Agent under this Agreement and the other Loan Documents, then
the Required Lenders shall appoint from among the Lenders a successor agent for the Lenders, which
successor agent shall (unless an Event of Default under Section 9.1(g) or (h) with
respect to the Borrower shall have occurred and be continuing) be subject to approval by the
Borrower (which approval shall not be unreasonably withheld or delayed), whereupon such successor
agent shall succeed to the rights, powers and duties of the Administrative Agent, and the term
“Administrative Agent” shall mean such successor agent effective upon such appointment and
approval, and the former Administrative Agent’s rights, powers and duties as Administrative Agent
shall be terminated, without any other or further act or deed on the part of such former
Administrative Agent or any of the parties to this Agreement or any holders of the Loans. If no
successor agent has accepted appointment as Administrative Agent by the date that is 30 days
following a retiring Administrative Agent’s notice of resignation, the retiring Administrative
Agent’s resignation shall nevertheless thereupon become effective, and the Lenders shall assume and
perform all of the duties of the Administrative Agent hereunder until such time, if any, as the
Required Lenders appoint a successor agent as provided for above. After any retiring
Administrative Agent’s resignation as Administrative Agent, the
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provisions of this Article
X shall inure to its benefit as to any actions taken or omitted to be taken by it while it was
Administrative Agent under this Agreement and the other Loan Documents.
10.10 Other Agents, etc. None of the Lenders or other Persons identified on the cover
page or signature pages of this Agreement as a “Syndication Agent,” “Documentation Agent,” “Co-Lead
Arranger” or “Joint Bookrunner” shall have any right, power, obligation, liability, responsibility
or duty under this Agreement other than those applicable to all Lenders as such. Without limiting
the foregoing, none of the Lenders so identified shall have or be deemed to have any
fiduciary relationship with any Lender. Each Lender acknowledges that it has not relied, and
will not rely, on any of the Lenders so identified in deciding to enter into this Agreement or in
taking or not taking action hereunder.
ARTICLE XI
Miscellaneous
11.1 Assignments and Participations. (a) The provisions of this Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective successors and
assigns permitted hereby, except that (i) the Borrower may not assign or otherwise transfer any of
its rights or obligations hereunder without the prior written consent of each Lender (and any
attempted assignment or transfer by the Borrower without such consent shall be null and void) and
(ii) no Lender may assign or otherwise transfer its rights or obligations hereunder except in
accordance with this Section.
(b) (i) Subject to the conditions set forth in paragraph (b)(ii) below, any Lender may
assign to one or more assignees (each, an “Assignee”) all or a portion of its rights and
obligations under this Agreement (including all or a portion of its Commitments and the
Loans at the time owing to it) with the prior written consent (such consent not to be
unreasonably withheld or delayed) of:
(A) the Borrower, provided that no consent of the Borrower shall be
required for an assignment to a Lender, an affiliate of a Lender, an Approved Fund
(as defined below) or, if an Event of Default has occurred and is continuing, any
other Person (in which case the Borrower shall instead be promptly notified of such
assignment by the assigning Lender unless the Assignee is an Affiliate of such
assigning Lender); and
(B) the Administrative Agent, provided that no consent of the
Administrative Agent shall be required for an assignment to a Lender, an affiliate
of a Lender or an Approved Fund (as defined below).
(ii) Assignments shall be subject to the following additional conditions:
(A) except in the case of an assignment to a Lender, an affiliate of a Lender
or an Approved Fund or an assignment of the entire remaining amount of the assigning
Lender’s Commitments or Loans under any Facility, the amount of the Commitments or
Loans of the assigning Lender subject to each such assignment (determined as of the
date the Assignment and Assumption with
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respect to such assignment is delivered to
the Administrative Agent) shall not be less than $5,000,000 unless each of the
Borrower and the Administrative Agent otherwise consent, provided that (1)
no such consent of the Borrower shall be required if an Event of Default has
occurred and is continuing and (2) such amounts shall be aggregated in respect of
each Lender and its affiliates or Approved Funds, if any;
(B) the parties to each assignment shall execute and deliver to the
Administrative Agent an Assignment and Assumption, together with a processing and
recordation fee of $3,500 (which fee shall not be reimbursed by the Borrower); and
(C) the Assignee, if it shall not be a Lender, shall deliver to the
Administrative Agent an administrative questionnaire.
For the purposes of this Section 11.1, “Approved Fund” means any Person (other than
a natural person) that is engaged in making, purchasing, holding or investing in bank loans
and similar extensions of credit in the ordinary course of its business and that is
administered or managed by (a) a Lender, (b) an affiliate of a Lender or (c) an entity or an
affiliate of an entity that administers or manages a Lender.
(iii) Subject to acceptance and recording thereof pursuant to paragraph (b)(iv) below,
from and after the effective date specified in each Assignment and Assumption the Assignee
thereunder shall be a party hereto and, to the extent of the interest assigned by such
Assignment and Assumption, have the rights and obligations of a Lender under this Agreement,
and the assigning Lender thereunder shall, to the extent of the interest assigned by such
Assignment and Assumption, be released from its obligations under this Agreement (and, in
the case of an Assignment and Assumption covering all of the assigning Lender’s rights and
obligations under this Agreement, such Lender shall cease to be a party hereto but shall
continue to be entitled to the benefits of Sections 4.1, 4.5, 4.6
and 11.9). Any assignment or transfer by a Lender of rights or obligations under
this Agreement that does not comply with this Section 11.1 shall be treated for
purposes of this Agreement as a sale by such Lender of a participation in such rights and
obligations in accordance with paragraph (c) of this Section.
(iv) The Administrative Agent, acting for this purpose as an agent of the Borrower,
shall maintain at one of its offices a copy of each Assignment and Assumption delivered to
it and a register for the recordation of the names and addresses of the Lenders, and the
Commitments of, and principal amount of the Loans and Reimbursement Obligations owing to,
each Lender pursuant to the terms hereof from time to time (the “Register”). The entries in
the Register shall be conclusive, and the Borrower, the Administrative Agent, the Issuing
Banks and the Lenders may treat each Person whose name is recorded in the Register pursuant
to the terms hereof as a Lender hereunder for all purposes of this Agreement,
notwithstanding notice to the contrary.
(v) Upon its receipt of a duly completed Assignment and Assumption executed by an
assigning Lender and an Assignee, the Assignee’s completed
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administrative questionnaire
(unless the Assignee shall already be a Lender hereunder), the processing and recordation
fee referred to in paragraph (b) of this Section and any written consent to such assignment
required by paragraph (b) of this Section, the Administrative Agent shall accept such
Assignment and Assumption and record the information contained therein in the Register. No
assignment shall be effective for purposes of this Agreement unless it has been recorded in
the Register as provided in this paragraph.
(c) (i) Any Lender may, without the consent of or notice to the Borrower or the
Administrative Agent, sell participations to one or more banks or other entities (a
“Participant”) in all or a portion of such Lender’s rights and obligations under this
Agreement (including all or a portion of its Commitments and the Loans owing to it);
provided that (A) such Lender’s obligations under this Agreement shall remain
unchanged, (B) such Lender shall remain solely responsible to the other parties hereto for
the performance of such obligations, (C) the Borrower, the Administrative Agent, the Issuing
Lender and the other Lenders shall continue to deal solely and directly with such Lender in
connection with such Lender’s rights and obligations under this Agreement and (D) such
participations shall be in a minimum amount equal to the lesser of $5,000,000 or the
remaining portion of a Lender’s rights and obligations hereunder which are not subject to a
pre-existing participation. Any agreement pursuant to which a Lender sells such a
participation shall provide that such Lender shall retain the sole right to enforce this
Agreement and to approve any amendment, modification or waiver of any provision of this
Agreement; provided that such agreement may provide that such Lender will not,
without the consent of the Participant, agree to any amendment, modification or waiver that
(1) requires the consent of each Lender directly affected thereby pursuant to Section
11.6(a) or (b) and (2) directly affects such Participant. Subject to paragraph
(c)(ii) of this Section, the Borrower agrees that each Participant shall be entitled to the
benefits of Sections 4.1, 4.5 and 4.6 to the same extent as if it
were a Lender and had acquired its interest by assignment pursuant to paragraph (b) of this
Section. To the extent permitted by law, each Participant also shall be entitled to the
benefits of Section 11.3(b) as though it were a Lender, provided such Participant
shall be subject to Section 11.3(a) as though it were a Lender.
(ii) A Participant shall not be entitled to receive any greater payment under
Section 4.1, 4.5 or 4.6 than the applicable Lender would have been
entitled to receive with respect to the participation sold to such Participant, unless the
sale of the participation to such Participant is made with the Borrower’s prior written
consent. Any Participant that is organized under the laws of a jurisdiction outside the
United States shall not be entitled to the benefits of Section 4.6 unless such
Participant complies with Section 4.6(d).
(d) Any Lender may at any time pledge or assign a security interest in all or any portion of
its rights under this Agreement to secure obligations of such Lender, including any pledge or
assignment to secure obligations to a Federal Reserve Bank, and this Section shall not apply to any
such pledge or assignment of a security interest; provided that no such pledge or
assignment of a security interest shall release a Lender from any of its obligations hereunder or
substitute any such pledgee or Assignee for such Lender as a party hereto. The Borrower, upon
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receipt of written notice from the relevant Lender, agrees to issue a Note to any Lender requiring
such Note to facilitate transactions of the type described in this paragraph (d).
(e) Notwithstanding anything to the contrary herein, no Lender will assign or sell
participations in all or a portion of its Loans or Commitments to any Person who is (i) listed on
the Specially Designated Nationals and Blocked Persons List maintained by the U.S. Department of
Treasury Office of Foreign Assets Control (“OFAC”) and/or on any other similar list maintained by
the OFAC pursuant to any authorizing statute, Executive Order or regulation
or (ii) either (A) included within the term “designated national” as defined in the Cuban
Assets Control Regulations, 31 C.F.R. Part 515, or (B) designated under Sections 1(a), 1(b), 1(c)
or 1(d) of Executive Order No. 13224, 66 Fed. Reg. 49079 (published September 25, 2001) or
similarly designated under any related enabling legislation or any other similar Executive Orders.
11.2 Notices. Any notice shall be conclusively deemed to have been received by any
party hereto and be effective (i) on the day on which delivered (including hand delivery by
commercial courier service) to such party (against receipt therefor), (ii) on the date of
transmission to such party, in the case of notice by telefacsimile (where the proper transmission
of such notice is either acknowledged by the recipient or electronically confirmed by the
transmitting device), or (iii) on the fifth Business Day after the day on which mailed to such
party, if sent prepaid by certified or registered mail, return receipt requested, in each case
delivered, transmitted or mailed, as the case may be, to the address or telefacsimile number, as
appropriate, set forth below or such other address or number as such party shall specify by notice
hereunder:
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(a)
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if to the Borrower: |
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AutoNation, Inc. |
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000 Xxxxxxxxx 0xx Xxxxxx, 00xx Xxxxx |
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Xx. Xxxxxxxxxx, Xxxxxxx 00000 |
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Attn: Treasurer |
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Telephone: (000)000-0000 |
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Telefacsimile: (000) 000-0000 |
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with a copy to: |
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AutoNation, Inc. |
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000 Xxxxxxxxx 0xx Xxxxxx, 00xx Xxxxx |
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Xx. Xxxxxxxxxx, Xxxxxxx 00000 |
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Attn: General Counsel |
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Telephone: (000) 000-0000 |
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Telefacsimile: (000) 000-0000 |
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(b)
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if to the Administrative Agent: |
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JPMorgan Chase Bank, N.A. |
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Loan & Agency |
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0000 Xxxxxx Xxxxxx, 00xx Xxxxx |
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Xxxxxxx, Xxxxx 00000 |
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Attn: Xxxx Xxx Xxx |
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Telephone: (000) 000-0000 |
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Telefacsimile: (000) 000-0000 |
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Email: XxxxXxx.X.Xxx@XXXXxxxx.xxx |
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with a copy to: |
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JPMorgan Chase Bank, N.A. |
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000 Xxxx Xxxxxx |
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Xxx Xxxx, XX 00000 |
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Attn: Xxxxxxx Xxxxxxxxx |
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Telephone: (000) 000-0000 |
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Telefacsimile: (000) 000-0000 |
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Email: Xxxxxxx.Xxxxxxxxx@XXXxxxxx.xxx |
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(c)
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if to the Lenders: |
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At the addresses set forth in administrative questionnaires furnished by the
Lenders to the Administrative Agent; |
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(d)
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if to any Guarantor, at the address set forth in (a) above. |
11.3 Right of Set-off; Adjustments. (a) Upon the occurrence and during the
continuance of any Event of Default, each Lender is hereby authorized at any time and from time to
time, to the fullest extent permitted by law, to set off and apply any and all deposits (general or
special, time or demand, provisional or final) at any time held and other indebtedness at any time
owing by such Lender to or for the credit or the account of the Borrower against any and all of the
obligations of the Borrower now or hereafter existing under this Agreement held by such Lender.
Each Lender agrees promptly to notify the Borrower after any such set-off and application made by
such Lender; provided, however, that the failure to give such notice shall not
affect the validity of such set-off and application. The rights of each Lender under this
Section 11.3 are in addition to other rights and remedies (including, without limitation,
other rights of set-off) that such Lender may have.
(b) If any Lender (a “benefitted Lender”) shall at any time receive any payment of all or part
of the Loans owing to it, or interest thereon, or receive any collateral in respect thereof
(whether voluntarily or involuntarily, by set-off, or otherwise), in a greater proportion than any
such payment to or collateral received by any other Lender, if any, in respect of such other
Lender’s Loans owing to it, or interest thereon, such benefitted Lender shall purchase for cash
from the other Lenders a participating interest in such portion of each such other Lender’s Loans
owing to it, or shall provide such other Lenders with the benefits of any such collateral, or the
proceeds thereof, as shall be necessary to cause such benefitted Lender to
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share the excess payment
or benefits of such collateral or proceeds ratably with each of the Lenders; provided,
however, that if all or any portion of such excess payment or benefits is thereafter
recovered from such benefitted Lender or is repaid in whole or in part by such benefitted Lender in
good faith settlement of a pending or threatened avoidance claim, such purchase shall be rescinded,
and the purchase price and benefits returned, to the extent of such recovery or settlement payment,
but without interest. The Borrower agrees that any Lender so purchasing a participation from a
Lender pursuant to this Section 11.3 may, to the fullest extent permitted by law, exercise
all of its rights of payment (including the right of set-off) with respect to such participation as
fully as if such Person were the direct creditor of the Borrower in the amount of such
participation.
11.4 Survival. All covenants, agreements, representations and warranties made herein
shall survive the making by the Lenders of the Loans and the issuance of the Letters of Credit and
the execution and delivery to the Lenders of this Agreement and shall continue in full force and
effect until the Facility Termination Date, subject to Section 11.8.
11.5 Expenses. The Borrower agrees to pay on demand all reasonable out-of-pocket
costs and expenses of the Administrative Agent in connection with the syndication, preparation,
execution, delivery, administration, modification, and amendment of this Agreement, the other Loan
Documents, and the other documents to be delivered hereunder, including, without limitation, the
reasonable fees and expenses of counsel for the Administrative Agent with respect thereto and with
respect to advising the Administrative Agent as to its rights and responsibilities under the Loan
Documents. The Borrower further agrees to pay on demand all costs and expenses of the
Administrative Agent and, during the continuance of any Event of Default, the Lenders, if any
(including, without limitation, reasonable attorneys’ fees and expenses), in connection with the
enforcement (whether through negotiations, legal proceedings, or otherwise) of the Loan Documents
and the other documents to be delivered hereunder.
11.6 Amendments and Waivers. Any provision of this Agreement or any other Loan
Document may be amended or waived if, but only if, such amendment or waiver is in writing and is
signed (or consented to in writing) by the Borrower or other applicable Loan Party party to such
Loan Document and (except as provided in clauses (a) and (b) below) either the Required Lenders or
(as to Loan Documents other than this Agreement) the Administrative Agent with the consent of the
Required Lenders (and, if Article X hereof or the rights or duties of the Administrative
Agent are affected thereby, by the Administrative Agent); provided that
(a) no such amendment or waiver shall, unless signed by each Lender directly affected
thereby, (i) (except as provided in Section 2.18) increase the Revolving Credit
Commitments of such Lender or the Total Revolving Credit Commitment, (ii) reduce (x) the
principal of or rate of interest on any Revolving Credit Loan, Term Loan or Competitive Bid
Loan made by such Lender, (y) the amounts of any Reimbursement Obligations owed to such
Lender hereunder or (z) any fees payable to such Lender hereunder, except that only the
consent of the Required Lenders shall be necessary to amend the definition of “Default Rate”
hereunder or to waive any obligation of the Borrower to pay interest at the Default Rate,
(iii) postpone any date scheduled for the payment of principal, interest or fees payable to
such Lender hereunder or for termination of any Revolving Credit Commitment of such Lender,
(iv) adversely change any pro rata
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provisions of Section 2.9 or (v) reduce the specified
percentage amount below 50% in the definition of Required Lenders or the percentage of the
Revolving Credit Commitments or outstanding Loans held by any Lender, as applicable, which
shall be required for the Lenders or any of them to take any action under this Section
11.6(a); and provided, further, that no such amendment or waiver that
affects the rights, privileges or obligations
of JPMorgan Chase Bank as provider of Swing Line Loans, shall be effective unless
signed in writing by JPMorgan Chase Bank or that affects the rights, privileges or
obligations of any Issuing Bank as issuer of Letters of Credit, shall be effective unless
signed in writing by such Issuing Bank; and
(b) no such amendment or waiver shall, unless signed by each Lender directly affected
thereby, release any Guarantor (unless such Person is simultaneously released from its
Senior Note Guaranty and Year 2006 Senior Note Guaranty), subordinate any Facility Guaranty
of any Guarantor (unless the Senior Note Guaranty and Year 2006 Senior Note Guaranty of such
Person is subordinated or substantially the same terms), release all or substantially all of
the Guarantors, or subordinate all or substantially all of the Facility Guaranties, except
as otherwise provided in this Agreement or as contemplated in the applicable Loan Documents.
In addition, notwithstanding the foregoing, this Agreement may be amended with only the
written consent of the Administrative Agent (not to be unreasonably withheld), the Borrower and the
Lenders providing the relevant Replacement Term Loans (as defined below) (but not any other Lender)
to permit the refinancing, replacement or modification of all outstanding Term Loans (“Replaced
Term Loans”) with a replacement term loan tranche hereunder (“Replacement Term Loans”),
provided that (a) the aggregate principal amount of such Replacement Term Loans shall not
exceed the aggregate principal amount of such Replaced Term Loans, (b) the Applicable Margin for
such Replacement Term Loans shall not be higher than the Applicable Margin for such Replaced Term
Loans and (c) the weighted average life to maturity of such Replacement Term Loans shall not be
shorter than the weighted average life to maturity of such Replaced Term Loans at the time of such
refinancing.
Any such waiver and any such amendment or modification pursuant to this Section 11.6
shall be binding upon the Borrower, the Guarantors, the Lenders, the Administrative Agent and all
future holders of the Loans. Except as otherwise set forth in such waiver, any Default or Event of
Default that is waived pursuant to this Section 11.6 shall not be deemed to be a Default or
Event of Default during the period of such waiver.
No notice to or demand on the Borrower in any case shall entitle the Borrower to any other or
further notice or demand in similar or other circumstances, except as otherwise expressly provided
herein. No delay or omission on any Lender’s or the Administrative Agent’s part in exercising any
right, remedy or option shall operate as a waiver of such or any other right, remedy or option or
of any Default or Event of Default.
11.7 Counterparts; Facsimile Signatures. This Agreement may be executed in any number
of counterparts, each of which when so executed and delivered shall be deemed an original, and it
shall not be necessary in making proof of this Agreement to produce or account for more than one
such fully-executed counterpart. Signatures on communications and other
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documents may be transmitted by facsimile only with the consent of the Administrative Agent in its sole and absolute
discretion in each instance. The effectiveness of any such signatures accepted by the
Administrative Agent shall, subject to applicable law, have the same force and effect as manual
signatures and shall be binding on all parties. The Administrative Agent may also require that any such signature be
confirmed by a manually-signed hard copy thereof. Each party hereto hereby adopts as an original
executed signature page each signature page hereafter furnished by such party to the Administrative
Agent (or an agent of the Administrative Agent) bearing (with the consent of the Administrative
Agent) a facsimile signature by or on behalf of such party. Nothing contained in this Section
shall limit the provisions of Section 10.4.
11.8 Termination. This Agreement shall terminate on the Facility Termination Date,
except that (x) those provisions which by the express terms thereof continue in effect
notwithstanding the Facility Termination Date, and (y) obligations in the nature of continuing
indemnities or expense reimbursement obligations not yet due and payable, shall continue in effect.
Notwithstanding the foregoing, if after receipt of any payment of all or any part of the
Obligations, the Administrative Agent, any Issuing Bank or any Lender (including the Swing Line
lender) is for any reason compelled to surrender such payment to any Person because such payment is
determined to be void or voidable as a preference, impermissible setoff, a diversion of trust funds
or for any other reason or elects to repay any such amount in good faith settlement of a pending or
threatened avoidance claim, (i) this Agreement (including the provisions pertaining to
Participations in Letters of Credit, Reimbursement Obligations and Swing Line Loans) shall continue
in full force (or be reinstated, as the case may be) and the Borrower shall be liable to, and shall
indemnify and hold the Administrative Agent, such Issuing Bank or such Lender harmless for, the
amount of such payment surrendered until the Administrative Agent, such Issuing Bank or such Lender
shall have been finally paid in full, and (ii) in the event any portion of any amount so required
to be surrendered by the Administrative Agent or any Issuing Bank or the Swing Line lender shall
have been distributed to the Lenders, the Lenders shall promptly repay such amounts to the
Administrative Agent or such Issuing Bank or the Swing Line lender on demand therefor. The
provisions of the foregoing sentence shall be and remain effective notwithstanding any contrary
action which may have been taken by the Administrative Agent, any Issuing Bank or the Lenders in
reliance upon such payment, and any such contrary action so taken shall be without prejudice to the
Administrative Agent’s, any Issuing Bank’s or the Lenders’ rights under this Agreement and shall be
deemed to have been conditioned upon such payment having become final and irrevocable.
11.9 Indemnification; Limitation of Liability. (a) Whether or not the transactions
contemplated hereby are consummated, the Borrower agrees to indemnify and hold harmless each
Agent-Related Person and each Lender and each of their Affiliates and their respective officers,
directors, employees, agents, and advisors (each, an “Indemnified Party”) from and against any and
all claims, damages, losses, liabilities, and reasonable out-of-pocket costs and expenses
(including, without limitation, reasonable attorneys’ fees) that may be incurred by or awarded
against any Indemnified Party, in each case arising out of or in connection with or by reason of
(including, without limitation, in connection with any investigation, litigation, or proceeding or
preparation of defense in connection therewith) the Loan Documents or the First Amendment or the
actual or proposed use of the proceeds of the Loans or the Letters of Credit (all of the foregoing,
collectively, the “Indemnified Liabilities”), except to the extent such claim, damage, loss,
liability, cost, or
expense resulted from such Indemnified Party’s gross negligence
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or willful misconduct. In the
case of an investigation, litigation or other proceeding to which the indemnity in this Section
11.9 applies, such indemnity shall be effective whether or not such investigation, litigation
or proceeding is brought by the Borrower, its directors, shareholders or creditors or an
Indemnified Party or any other Person or any Indemnified Party is otherwise a party thereto and
whether or not the transactions contemplated hereby are consummated. The Borrower agrees that no
Indemnified Party shall have any liability (whether direct or indirect, in contract or tort or
otherwise) to it, any of its Subsidiaries, any Guarantor, or any security holders or creditors
thereof arising out of, related to or in connection with the transactions contemplated herein,
except to the extent that such liability resulted from such Indemnified Party’s gross negligence or
willful misconduct. The Borrower agrees not to assert any claim against any Agent-Related Person,
any Lender, any of their Affiliates, or any of their respective directors, officers, employees,
attorneys, agents, and advisers, on any theory of liability, for special, indirect, consequential,
or punitive damages arising out of or otherwise relating to the Loan Documents, any of the
transactions contemplated herein or the First Amendment or the actual or proposed use of the
proceeds of the Loans.
(b) The agreements and obligations of the Borrower contained in this Section 11.9
shall continue in effect notwithstanding the Facility Termination Date.
11.10 Severability. If any provision of this Agreement or the other Loan Documents
shall be determined to be illegal or invalid as to one or more of the parties hereto, then such
provision shall remain in effect with respect to all parties, if any, as to whom such provision is
neither illegal nor invalid, and in any event all other provisions hereof shall remain effective
and binding on the parties hereto.
11.11 Entire Agreement. This Agreement, together with the other Loan Documents,
constitutes the entire agreement among the parties with respect to the subject matter hereof and
supersedes all previous proposals, negotiations, representations, commitments and other
communications between or among the parties, both oral and written, with respect thereto (except
that those provisions (if any) which by the express terms of (i) the commitment letter dated as of
June 6, 2005, executed by JPMorgan Chase Bank, X.X. Xxxxxx Securities Inc., Bank of America, N.A.
and Banc of America Securities LLC and accepted by the Borrower or (ii) the commitment letter,
dated as of March 6, 2006, executed by JPMorgan Chase Bank, N.A. and X.X. Xxxxxx Securities Inc.
and accepted by the Borrower, survive the closing of the Revolving Credit Facility, the Term
Facility or Letter of Credit Facility, as applicable, shall survive and continue in effect).
11.12 Agreement Controls. In the event that any term of any of the Loan Documents
other than this Agreement conflicts with any express term of this Agreement, the terms and
provisions of this Agreement shall control to the extent of such conflict.
11.13 Usury Savings Clause. Notwithstanding any other provision herein, the aggregate interest rate charged hereunder,
including all charges or fees in connection therewith deemed in the nature of interest under
applicable law shall not exceed the Highest Lawful Rate (as such term is defined below). If the
rate of interest (determined without regard to the preceding sentence) under this Agreement at any
time exceeds the Highest Lawful Rate (as defined below), the outstanding amount of the Loans made
hereunder shall bear interest at the Highest Lawful
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Rate until the total amount of interest due
hereunder equals the amount of interest which would have been due hereunder if the stated rates of
interest set forth in this Agreement had at all times been in effect. In addition, if when the
Loans made hereunder are repaid in full the total interest due hereunder (taking into account the
increase provided for above) is less than the total amount of interest which would have been due
hereunder if the stated rates of interest set forth in this Agreement had at all times been in
effect, then to the extent permitted by law, the Borrower shall pay to the Administrative Agent an
amount equal to the difference between the amount of interest paid and the amount of interest which
would have been paid if the Highest Lawful Rate had at all times been in effect. Notwithstanding
the foregoing, it is the intention of the Lenders and the Borrower to conform strictly to any
applicable usury laws. Accordingly, if any Lender contracts for, charges, or receives any
consideration which constitutes interest in excess of the Highest Lawful Rate, then any such excess
shall be cancelled automatically and, if previously paid, shall at such Lender’s option be applied
to the outstanding amount of the Loans made hereunder or be refunded to the Borrower. As used in
this paragraph, the term “Highest Lawful Rate” means the maximum lawful interest rate, if any, that
at any time or from time to time may be contracted for, charged, or received under the laws
applicable to such Lender which are presently in effect or, to the extent allowed by law, under
such applicable laws which may hereafter be in effect and which allow a higher maximum nonusurious
interest rate than applicable laws now allow.
11.14 Governing Law; Waiver of Jury Trial.
(a) THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
(b) THE BORROWER HEREBY EXPRESSLY AND IRREVOCABLY AGREES AND CONSENTS THAT ANY SUIT,
ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT AND THE TRANSACTIONS
CONTEMPLATED HEREIN MAY BE INSTITUTED IN ANY STATE OR FEDERAL COURT SITTING IN THE XXXXXX XX
XXX XXXX, XXXXX XX XXX XXXX, XXXXXX XXXXXX OF AMERICA AND, BY THE EXECUTION AND DELIVERY OF
THIS AGREEMENT, THE BORROWER EXPRESSLY WAIVES ANY OBJECTION THAT IT MAY NOW OR HEREAFTER
HAVE TO THE LAYING OF VENUE IN, OR TO THE EXERCISE OF JURISDICTION OVER IT AND ITS PROPERTY
BY, ANY SUCH COURT IN ANY SUCH SUIT, ACTION OR PROCEEDING, AND THE BORROWER HEREBY
IRREVOCABLY SUBMITS GENERALLY AND UNCONDITIONALLY TO THE JURISDICTION OF ANY SUCH COURT IN
ANY SUCH SUIT, ACTION OR PROCEEDING.
(c) THE BORROWER AGREES THAT SERVICE OF PROCESS MAY BE MADE BY PERSONAL SERVICE OF A
COPY OF THE SUMMONS AND COMPLAINT OR OTHER LEGAL PROCESS IN ANY SUCH SUIT, ACTION OR
PROCEEDING, OR BY REGISTERED OR CERTIFIED MAIL (POSTAGE PREPAID) TO THE ADDRESS OF THE
BORROWER PROVIDED IN SECTION
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11.2, OR BY ANY OTHER METHOD OF SERVICE PROVIDED FOR
UNDER THE APPLICABLE LAWS IN EFFECT IN THE STATE OF NEW YORK.
(d) NOTHING CONTAINED IN SUBSECTIONS (b) OR (c) HEREOF SHALL PRECLUDE
THE ADMINISTRATIVE AGENT OR ANY LENDER FROM BRINGING ANY SUIT, ACTION OR PROCEEDING ARISING
OUT OF OR RELATING TO ANY LOAN DOCUMENT IN THE COURTS OF ANY JURISDICTION WHERE THE BORROWER
OR ANY GUARANTOR OR ANY OF THE BORROWER’S OR ANY GUARANTOR’S PROPERTY OR ASSETS MAY BE FOUND
OR LOCATED. TO THE EXTENT PERMITTED BY THE APPLICABLE LAWS OF ANY SUCH JURISDICTION, THE
BORROWER HEREBY IRREVOCABLY SUBMITS TO THE JURISDICTION OF ANY SUCH COURT AND EXPRESSLY
WAIVES, IN RESPECT OF ANY SUCH SUIT, ACTION OR PROCEEDING, OBJECTION TO THE EXERCISE OF
JURISDICTION OVER IT AND ITS PROPERTY BY ANY SUCH OTHER COURT OR COURTS OF ANY JURISDICTION
WHERE THE BORROWER OR ANY GUARANTOR OR ANY OF THE BORROWER’S OR ANY GUARANTOR’S PROPERTY OR
ASSETS MAY BE FOUND OR LOCATED.
(e) IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY RIGHTS OR REMEDIES UNDER OR
RELATED TO ANY LOAN DOCUMENT OR ANY AMENDMENT, INSTRUMENT, DOCUMENT OR AGREEMENT DELIVERED
OR THAT MAY IN THE FUTURE BE DELIVERED IN CONNECTION THEREWITH, OR IN ANY WAY CONNECTED WITH
OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO OR ANY OF THEM WITH RESPECT TO ANY LOAN
DOCUMENT, WHETHER NOW EXISTING OR HEREAFTER ARISING, THE BORROWER, THE ADMINISTRATIVE AGENT
AND THE LENDERS HEREBY AGREE, TO THE EXTENT PERMITTED BY APPLICABLE LAW, THAT ANY SUCH
ACTION, SUIT OR PROCEEDING SHALL BE TRIED BEFORE A COURT AND NOT BEFORE A JURY AND HEREBY
IRREVOCABLY WAIVE, TO THE EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT SUCH PERSON MAY HAVE
TO TRIAL BY JURY IN ANY SUCH ACTION, SUIT OR PROCEEDING. ANY PARTY TO THIS AGREEMENT MAY
FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS SECTION WITH ANY COURT AS WRITTEN EVIDENCE OF
THE CONSENT OF THE SIGNATORIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.
(f) THE BORROWER HEREBY EXPRESSLY WAIVES ANY OBJECTION IT MAY HAVE THAT ANY COURT TO
WHOSE JURISDICTION IT HAS SUBMITTED PURSUANT TO THE TERMS HEREOF IS AN INCONVENIENT FORUM.
11.15 Confidentiality. Each of the Administrative Agent and each Lender (together,
the “Lending Parties”, and individually a “Lending Party”) agrees to keep confidential any
information furnished or made available to it by the Borrower or any of its Subsidiaries pursuant
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to this Agreement; provided that nothing herein shall prevent any Lending Party from disclosing
such information (a) to any other Lending Party or any Affiliate of any Lending Party, or any
officer, director, employee, agent, or advisor of any Lending Party or Affiliate of any Lending
Party, (b) to any other Person if reasonably incidental to the administration of the credit
facility provided herein so long as such Person is bound by the provisions of this Section
11.15, (c) as required by any law, rule, or regulation, (d) upon the order of any court or
administrative agency, (e) upon the request or demand of any regulatory agency or authority, (f)
that is or becomes available to the public or that is or becomes available to any Lending Party
other than as a result of a disclosure by any Lending Party prohibited by this Agreement, (g) in
connection with any litigation to which such Lending Party 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) to any actual or proposed participant or assignee that is subject
to provisions substantially similar to those contained in this Section 11.15.
11.16 Releases of Facility Guarantees. Notwithstanding anything to the contrary
contained herein or in any other Loan Document, the Administrative Agent is hereby irrevocably
authorized by each Lender (without requirement of notice to or consent of any Lender except as
expressly required by Section 11.6) to take any action requested by the Borrower, at the
Borrower’s expense, having the effect of releasing any Facility Guaranty to the extent necessary to
permit consummation of any transaction not prohibited by any Loan Document or that has been
consented to in accordance with Section 11.6.
11.17 MANUFACTURER CONSENTS. IT IS ACKNOWLEDGED, UNDERSTOOD AND AGREED THAT (EXCEPT
TO THE EXTENT THE RESPECTIVE MANUFACTURER WAIVES ANY OF THE TERMS OF A MANUFACTURER CONSENT OR A
MANUFACTURER CONSENT IS TERMINATED OR CEASES TO BE IN EFFECT): (A) THE EXERCISE BY THE
ADMINISTRATIVE AGENT OR ANY LENDER (WHETHER THROUGH THE ADMINISTRATIVE AGENT OR OTHERWISE) OF
REMEDIES UNDER THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT WILL BE SUBJECT TO THE TERMS OF THE
MANUFACTURER CONSENTS, (B) IN THE EVENT OF ANY CONFLICT BETWEEN THE TERMS OF THE MANUFACTURER
CONSENTS AND THE TERMS OF THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, THE TERMS OF THE MANUFACTURER
CONSENTS WILL CONTROL, (C) THE ADMINISTRATIVE AGENT AGREES TO FURNISH SUCH NOTICES AS IT IS
REQUIRED TO FURNISH UNDER SUCH MANUFACTURER CONSENTS, AND (D) THE MANUFACTURERS PROVIDING
SUCH MANUFACTURER CONSENTS SHALL BE THIRD PARTY BENEFICIARIES OF THIS SECTION. PARTICIPATION
BY AN AFFILIATE OR SUBSIDIARY OF A MANUFACTURER AS A LENDER SHALL NOT CONSTITUTE A WAIVER OF THE
TERMS OF ANY MANUFACTURER CONSENT GRANTED BY SUCH MANUFACTURER.
11.18 USA Patriot Act Notice. Each Lender and the Administrative Agent (for itself
and not on behalf of any Lender) hereby notifies the Borrower that pursuant to the requirements of
the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the “Act”),
it is required to obtain, verify and record information that identifies the Borrower, which
information includes the name and address of the Borrower and other information that will allow
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such Lender or the Administrative Agent, as applicable, to identify the Borrower in accordance with
the Act.
[Signatures on following pages]
IN WITNESS WHEREOF, the parties hereto have caused this instrument to be made, executed and
delivered by their duly authorized officers as of the day and year first above written.
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AUTONATION, INC. |
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S-1
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JPMORGAN CHASE BANK, N.A., |
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as Administrative Agent for the Lenders |
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JPMORGAN CHASE BANK, N.A. |
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BANK OF AMERICA, N.A. |
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BNP PARIBAS |
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TOYOTA MOTOR CREDIT CORPORATION |
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WACHOVIA BANK, NATIONAL |
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ASSOCIATION |
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S-2
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SOVEREIGN BANK |
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COMERICA BANK |
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SUMITOMO MITSUI BANKING |
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CORPORATION, NEW YORK |
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SUNTRUST BANK |
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XXXXX FARGO BANK, N.A. |
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FIFTH THIRD BANK |
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S-3
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THE BANK OF NEW YORK |
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XXXXXXX SACHS PARTNERS L.P. |
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S-4