SECOND AMENDMENT TO CREDIT AGREEMENT
EXHIBIT
10.22
SECOND
AMENDMENT TO CREDIT AGREEMENT
THIS
SECOND AMENDMENT TO CREDIT AGREEMENT (this “Amendment”)
dated
as of August 3, 2007 is by and among AUTOZONE, INC., a
Nevada
corporation (the “Borrower”),
the
Lenders party hereto, BANK OF AMERICA, N.A., as
Administrative Agent, and WACHOVIA BANK, NATIONAL ASSOCIATION, as Co-Syndication
Agent.
WITNESSETH
WHEREAS,
a $300,000,000 term loan has been established pursuant to the terms of that
certain Credit Agreement dated as of December 23, 2004 (as amended by that
certain First Amendment to Credit Agreement dated as of May 5, 2006 and as
otherwise amended, restated, modified or supplemented from time to time, the
“Credit
Agreement”)
among
the Borrower, the Lenders from time to time party thereto, the Administrative
Agent and the Co-Syndication Agent;
WHEREAS,
the Borrower has requested that the Lenders amend the Credit Agreement to modify
certain provisions contained therein; and
WHEREAS,
the Lenders have agreed to amend the Credit Agreement on the terms and subject
to the conditions set forth herein.
NOW,
THEREFORE, IN CONSIDERATION of the premises and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
the
parties hereto agree as follows:
1. Defined
Terms.
Capitalized terms used herein but not otherwise defined herein shall have the
meanings provided to such terms in the Credit Agreement.
2. Amendments.
Effective upon the satisfaction of the conditions precedent set forth in Section
3 hereof, the Credit Agreement is hereby amended by deleting Schedule
1.1(a)
thereto
in its entirety and replacing it with Schedule
1.1(a)
attached
hereto as Exhibit
A.
3. Condition
Precedent.
This
Amendment shall become effective as of the date hereof (the “Second
Amendment Effective Date”)
upon
receipt by the Administrative Agent of the following:
(a) Amendment.
Counterparts of this Amendment duly executed by the Borrower and the
Lenders;
(b) Fees.
Any
fees required to be paid on or before the Second Amendment Effective Date shall
have been paid.
(c) Attorney
Costs.
Unless
waived by the Administrative Agent, the Borrower shall have paid all costs
and
expenses of Xxxxx & Xxx Xxxxx PLLC, outside counsel to the Administrative
Agent, incurred pursuant to Section 6 of this Amendment to the extent invoiced
prior to or on the Second Amendment Effective Date, plus
such
additional amounts as shall constitute its reasonable estimate of such costs
and
expenses incurred or to be incurred by it through the closing proceedings
(provided that such estimate shall not thereafter preclude a final settling
of
accounts between the Borrower and the Administrative Agent).
(d) Accuracy
of Representations and Warranties.
The
representations and warranties of the Borrower and each other Loan Party
contained in Section 4 hereof shall be true and correct on and as of the Second
Amendment Effective Date.
(e) No
Default.
No
Default shall exist and be continuing as of the Second Amendment Effective
Date.
4. Representations
and Warranties.
The
Borrower hereby
represents and warrants that (a) it has the requisite organizational power
and
authority to execute, deliver and perform this Amendment, (b) it is duly
authorized to, and has been authorized by all necessary organizational action
to, execute, deliver and perform this Amendment, (c) no
consent, approval, authorization or order of, or filing, registration or
qualification with, any court or governmental authority or third party is
required in connection with the execution, delivery or performance by it of
this
Amendment, (d) the execution, delivery and performance by it of this Amendment
do not and will not conflict with, result in a breach of or constitute a default
under the articles of incorporation, bylaws or other organizational documents
of
the Borrower or any of its Subsidiaries or any indenture or other material
agreement or instrument to which any such Person is a party or by which any
of
its properties may be bound or the approval of any Governmental Authority
relating to such Person except as could not reasonably be expected to have
a
Material Adverse Effect, (e)
the
representations and warranties contained in Article
V
of the
Credit Agreement are true and correct in all material respects on and as of
the
date hereof as though made on and as of such date (except for those which
expressly relate to an earlier date) and (f) after giving effect to this
Amendment, no Default or Event of Default exists under the Credit Agreement
on
and as of the date hereof or will occur as a result of the transactions
contemplated hereby.
5. No
Other Changes; Ratification.
Except
as expressly modified hereby, all of the terms and provisions of the Credit
Agreement (including schedules, amendments and exhibits thereto) and the other
Credit Documents shall remain in full force and effect. The term “this
Agreement” or “Credit Agreement” and all similar references as used in each of
the Credit Documents shall hereafter mean the Credit Agreement as amended by
this Amendment. Except as herein specifically agreed, the Credit Agreement
is
hereby ratified and confirmed and shall remain in full force and effect
according to its terms.
6. Costs
and Expenses.
The
Borrower agrees to pay all reasonable costs and expenses of the Administrative
Agent in connection with the preparation, execution and delivery of this
Amendment, including without limitation the reasonable fees and expenses of
Xxxxx & Xxx Xxxxx, PLLC.
7. Counterparts;
Facsimile.
This
Amendment 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 Amendment to produce or account for more than one such
counterpart. Delivery of an executed counterpart of this Amendment by telecopy
or electronic mail by any party hereto shall be effective as such party’s
original executed counterpart.
8. Governing
Law.
This
Amendment shall be deemed to be a contract made under, and for all purposes
shall be construed in accordance with, the laws of the State of New
York.
9. Entirety.
This
Amendment and the other Credit Documents embody the entire agreement between
the
parties and supersede all prior agreements and understandings, if any, relating
to the subject matter hereof. This Amendment and the other Credit Documents
represent the final agreement between the parties and may not be contradicted
by
evidence of prior, contemporaneous or subsequent oral agreements of the parties.
There are no oral agreements between the parties.
[SIGNATURE
PAGES FOLLOW]
IN
WITNESS WHEREOF, each of the parties hereto has caused a counterpart of this
Amendment to be duly executed and delivered as of the date first above
written.
BORROWER: | AUTOZONE, INC. | |
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|
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By: | /s/ Xxxxx X. Xxxxxxxx | |
Name:
Xxxxx X. Xxxxxxxx
Title:
Vice President & Treasurer
|
||
By: | /s/ Xxxxxxx X. Xxxxx | |
Name:
Xxxxxxx X. Xxxxx
Title:
Executive Vice President &
CFO
|
ADMINISTRATIVE
AGENT:
|
BANK OF AMERICA, N.A., | |
as
Administrative Agent
|
||
|
|
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By: | /s/ Xxxxxx Xxxxxxxxx | |
Name:
Xxxxxx Xxxxxxxxx
Title:
Vice President
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||
LENDERS: | BANK OF AMERICA, N.A., | |
as a Lender | ||
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|
|
By: | /s/ Xxxxxx Xxxxxxxxx | |
Name:
Xxxxxx Xxxxxxxxx
Title:
Vice President
|
||
Wachovia Bank, National Association | ||
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By: | /s/ Xxxxxxx X. Xxxxxxx | |
Name:
Xxxxxxx X. Xxxxxxx
Title:
Director
|
||
BNP PARIBAS | ||
|
|
|
By: | /s/ Xxxxxx Xxxxxxxx | |
Name:
Xxxxxx Xxxxxxxx
Title
:Director
|
||
Regions Bank | ||
|
|
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By: | /s/ Xxxxx X. Xxxx | |
Name:
Xxxxx X. Xxxx
Title:
Senior Vice President
|
||
Mizuho Corporate Bank, Ltd. | ||
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|
By: | /s/ Xxxxxx Xxxxxx | |
Name:
Xxxxxx Xxxxxx
Title:
Deputy General Manager
|
||
[Calyon New York Branch] | ||
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By: | /s/ Xxxxxx Xxxx | |
Name:
Xxxxxx Xxxx
Title:
Managing Director / Region Head
|
||
By: | /s/ Xxxxx Xxxxx | |
Name:
Xxxxx Xxxxx
Title:
Managing Director
|
||
Union
Bank of California, N.A.
|
||
|
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By: | /s/ Xxxxx X. Xxxxxxxxx | |
Name:
Xxxxx X. Xxxxxxxxx
Title:
Investment Banking Officer
|
Fifth Third Bank, N.A. | ||
|
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By: | /s/ Xxxx X. Xxxxx | |
Name:
Xxxx X. Xxxxx
Title:
Vice President
|
||
U.S. Bank N.A. | ||
|
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By: | /s/ Xxxxxxx X. Xxxxxxx | |
Name:
Xxxxxxx X. Xxxxxxx
Title:
Vice President
U.S. Bank, N.A.
|
||
The
Bank of Tokyo-Mitsubishi UFJ, Ltd.
|
||
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By: | /s/ Xxxx Xxxxxxx | |
Name:
Xxxx Xxxxxxx
Title:
Manager, Southwest Corporate
|
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National
City Bank
|
||
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By: | /s/ Xxxxxxxx Xxxxx | |
Name:
Xxxxxxxx Xxxxx
Title:
Portfolio Manager
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THE
CHIBA BANK, LTD., NEW YORK BRANCH
as
a Lender
|
||
|
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By: | /s/ Morio Tsumita | |
Name:
Morio Tsumita
Title:
General Manager
|
||
Comerica
Bank
|
||
|
|
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By: | /s/ Xxxxxxx X. Xxxxxxx | |
Name:
Xxxxxxx X. Xxxxxxx
Title:
Vice President
|
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EXHIBIT
A
Schedule
1.1(a)
APPLICABLE
PERCENTAGE
Pricing
Level
|
|
S&P/Xxxxx’x
Rating
|
|
Applicable
Margin
for
Eurodollar
Loans
|
|
Applicable
Margin
for Base Rate Loans |
Level
I
|
A-/A3
or above
|
30.0
bps
|
0
|
|||
Level
II
|
BBB+/Baa1
|
35.0
bps
|
0
|
|||
Level
III
|
BBB/Baa2
|
45.0
bps
|
0
|
|||
Level
IV
|
BBB-/Baa3
|
62.5
bps
|
0
|
|||
Level
V
|
Below
BBB-/Baa3
|
90.0
bps
|
0
|
The
Applicable Percentage shall be based on the applicable Pricing Level
corresponding to the Rating(s) then in effect. In the event of a Split Rating,
the applicable Pricing Level shall be based on the higher Rating. In the event
of a Double Split Rating, the applicable Pricing Level shall be based on the
Pricing Level which is one above that corresponding to the lower Rating. If
no
Rating exists, the applicable Pricing Level shall be based on Pricing Level
V
until the earlier of (A) such time as S&P and/or Xxxxx’x provides another
Rating or (B) the Required Lenders have agreed to an alternative pricing grid
or
other method for determining Pricing Levels pursuant to an effective amendment
to this Credit Agreement.
As
used
herein:
"Rating"
means
the senior unsecured (non-credit enhanced) long term debt rating of the
Borrower, as published by S&P and/or Xxxxx’x.
"Split
Rating"
means
the ratings of S&P and Xxxxx’x would indicate different Pricing Levels, but
the Pricing Levels are not more than one Pricing Level apart.
"Double
Split Rating"
means
the ratings of S&P and Xxxxx’x would indicate different Pricing Levels, but
the Pricing Levels are two or more Pricing Levels apart.