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REVOLVING CREDIT AGREEMENT
Dated as of March 23, 2005
Among
Asbury Automotive Group, Inc.
The Subsidiary Borrowers Listed Herein,
As Borrowers
The Lenders Listed Herein
JPMorgan Chase Bank, N.A.,
As Administrative Agent and
As Floor Plan Agent
and
Bank of America, N.A.,
As Syndication Agent
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J.P. Morgan Securities Inc. Banc of America Securities LLC
As Joint Bookrunners and Co-Lead Arrangers
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ARTICLE I. CERTAIN DEFINED TERMS, ACCOUNTING TERMS AND
CONSTRUCTION............1
Section 1.1 Certain Defined
Terms......................................1
Section 1.2 Accounting
Terms..........................................22
Section 1.3
Interpretation............................................22
ARTICLE II. THE FLOOR PLAN
LOANS..............................................23
Section 2.1 Floor Plan Loan
Commitments...............................23
Section 2.2 Floor Plan Loans
Generally................................23
Section 2.3 Floor Plan Borrowing
Procedure............................24
Section 2.4 Floor Plan Adjustment Date
Mechanics......................26
Section 2.5 Payments; Application of
Payments.........................27
Section 2.6 Issuance of Drafting
Agreements...........................28
Section 2.7 Conditions to Execution of Drafting
Agreements............28
Section 2.8 Notice of Issuance of or Entering into
Manufacturers Drafting Letters............................29
Section 2.9 Drafts Under Manufacturer's Drafting
Letters..............29
Section 2.10 Obligations
Absolute......................................30
Section 2.11 Dealer Access
System......................................31
ARTICLE III. REVOLVING CREDIT
LOANS...........................................31
Section 3.1 Revolving Credit Loan
Commitments.........................31
Section 3.2 Revolving Credit
Loans....................................31
Section 3.3 Notice of Revolving Credit Loan Borrowings and
Borrowing Procedures......................................32
Section 3.4 Reserve Commitment; Suspension of Revolving Credit
Loan...33
Section 3.5 Obligations
Absolute......................................33
ARTICLE IV. SWING LINE
LOANS..................................................33
Section 4.1 Swing Line Commitments and
Payments.......................33
Section 4.2 Accrual of Interest; Margin
Adjustments...................34
Section 4.3 Requests for Swing Line
Loans.............................34
Section 4.4 Disbursement of Swing Line
Loans..........................35
Section 4.5 Refunding of and Participation Interest in Swing
Line Loans................................................35
ARTICLE V. ALL
LOANS..........................................................37
Section 5.1 Notes: Repayment of
Loans.................................37
Section 5.2 Interest on
Loans.........................................37
Section 5.3 Interest on Overdue
Amounts...............................38
Section 5.4
Fees......................................................38
Section 5.5 Termination, Reduction or Conversion of
Commitments.......39
Section 5.6 Alternate Rate of
Interest................................40
Section 5.7 Prepayment of Loans; Mandatory Reduction of
Indebtedness..41
Section 5.8 Reserve Requirements; Change in
Circumstances.............41
Section 5.9 Change in
Legality........................................43
Section 5.10 Breakage Costs and Related
Matters........................43
Section 5.11 Pro Rata
Treatment........................................44
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Section 5.12 Place of
Payments.........................................44
Section 5.13 Sharing of
Setoffs........................................45
Section 5.14 Payments Free of
Taxes....................................45
Section 5.15 Applicable Interest
Rate..................................48
Section 5.16 Extension of Maturity
Date................................49
Section 5.17 Replacement
Lenders.......................................50
Section 5.18 Increase of
Commitments...................................51
ARTICLE VI. LETTERS OF
CREDIT.................................................52
Section 6.1
General...................................................52
Section 6.2 Issuance, Amendment and Renewal of Letters of
Credit......53
Section 6.3 Risk Participations, Drawings and
Reimbursements..........54
Section 6.4 Repayment of
Participation................................56
Section 6.5 Role of the Issuing
Bank..................................56
Section 6.6 Obligations
Absolute......................................57
Section 6.7 Letter of Credit
Fees.....................................58
Section 6.8 Cash
Collateralization....................................58
ARTICLE VII. REPRESENTATIONS AND
WARRANTIES...................................59
Section 7.1 Organization; Corporate
Powers............................59
Section 7.2
Authorization.............................................59
Section 7.3 Governmental
Approval.....................................60
Section 7.4
Enforceability............................................60
Section 7.5 Financial
Statements......................................60
Section 7.6 No Material Adverse
Change................................60
Section 7.7 Title to Properties; Security
Documents...................60
Section 7.8 Litigation; Compliance with Laws;
Etc.....................61
Section 7.9 No
Default................................................61
Section 7.10 Use of Proceeds/Federal Reserve
Regulations...............61
Section 7.11
Taxes.....................................................61
Section 7.12 Pension and Welfare
Plans.................................62
Section 7.13 No Material
Misstatements.................................62
Section 7.14 Investment Company Act; Public Utility Holding
Company Act...............................................62
Section 7.15 Maintenance of
Insurance..................................62
Section 7.16 Existing
Liens............................................62
Section 7.17 Environmental
Matters.....................................63
Section 7.18
Subsidiaries..............................................63
Section 7.19 Engaged in Business of Motor Vehicle Sales and
Related Businesses........................................64
Section 7.20 Franchise
Agreements......................................64
ARTICLE VIII. CONDITIONS OF
LENDING...........................................64
Section 8.1 Conditions Precedent to Closing
Date......................64
Section 8.2 Conditions Precedent to Initial
Borrowings................66
Section 8.3 Conditions Precedent to Each
Borrowing....................67
Section 8.4 Conditions Precedent to Conversions and
Continuations.....68
ARTICLE IX. AFFIRMATIVE
COVENANTS.............................................69
Section 9.1
Existence.................................................69
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Section 9.2
Repair....................................................69
Section 9.3
Insurance.................................................69
Section 9.4 Obligations and
Taxes.....................................70
Section 9.5 Financial Statements;
Reports.............................70
Section 9.6 Litigation and Other
Notices..............................71
Section 9.7
ERISA.....................................................72
Section 9.8 Books, Records and
Access.................................72
Section 9.9 Use of
Proceeds...........................................72
Section 9.10 Nature of
Business........................................73
Section 9.11
Compliance................................................73
Section 9.12
Audits....................................................73
Section 9.13 Demonstrators and Rental Motor Vehicles; Title
Documents.................................................73
Section 9.14 Cash Management
System....................................73
Section 9.15 Further
Assurances........................................74
Section 9.16 Permitted
Acquisitions....................................74
Section 9.17 Title
Documents...........................................74
Section 9.18 Additional
Subsidiaries...................................75
Section 9.19 Updated Control
Agreements................................76
Section 9.20 Final Lien Releases; Termination of Security
Interests....76
ARTICLE X. NEGATIVE
COVENANTS.................................................76
Section 10.1
Indebtedness..............................................76
Section 10.2
Liens.....................................................79
Section 10.3 Consolidations and
Mergers................................79
Section 10.4 Disposition of
Assets.....................................80
Section 10.5
Investments...............................................81
Section 10.6 Transactions with
Affiliates..............................82
Section 10.7 Other
Agreements..........................................82
Section 10.8 Fiscal Year;
Accounting...................................83
Section 10.9 Pension
Plans.............................................82
Section 10.10 Restricted Payments and
Distributions.....................82
Section 10.11 Adjusted Net
Worth........................................83
Section 10.12 Fixed Charge Coverage
Ratio...............................83
Section 10.13 Total Leverage
Ratio......................................83
Section 10.14 Current
Ratio.............................................83
Section 10.15 Deposit and Security
Accounts.............................83
ARTICLE XI. EVENTS OF DEFAULT AND
REMEDIES....................................83
Section 11.1 Revolving Credit Events of
Default........................83
Section 11.2 Revolving Credit
Remedies.................................85
Section 11.3 Floor Plan Events of
Default..............................86
Section 11.4 Floor Plan
Remedies.......................................88
Section 11.5 Overdrawing of Floor Plan
Loans...........................89
Section 11.6 Application of
Collateral.................................90
ARTICLE XII. THE AGENT, FLOOR PLAN AGENT AND THE
COLLATERAL...................91
Section 12.1 Authorization and Action of the Agent; Funding
During Transition Period; Rights and Duties
Regarding Collateral, Priority of Distributions...........91
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Section 12.2 Agent's
Reliance..........................................93
Section 12.3 Agent and Affiliates; JPMorgan Chase and
Affiliates.......93
Section 12.4 Lenders' Indemnity of
Agent...............................94
Section 12.5 Lender Credit
Decision....................................95
Section 12.6 Resignation of Agent; Successor
Agent.....................95
Section 12.7 Notice of
Default.........................................95
Section 12.8 Authorization and Action of the Floor Plan
Agent;
Quarterly Audits..........................................96
Section 12.9 Floor Plan Agent's
Reliance...............................96
Section 12.10 Floor Plan Agent and Affiliates; JPMorgan Chase
Bank,
N.A. and Affiliates.......................................97
Section 12.11 Floor Plan Agent's
Indemnity..............................97
Section 12.12 Lender Credit
Decision....................................98
Section 12.13 Resignation of Floor Plan Agent; Successor
Floor Plan Agent..........................................98
Section 12.14 Notice of
Default.........................................99
Section 12.15 Syndication
Agent.........................................99
ARTICLE XIII.
MISCELLANEOUS...................................................99
Section 13.1 Notices,
Etc..............................................99
Section 13.2 Survival of
Agreement....................................101
Section 13.3 Successors and Assigns;
Participations...................101
Section 13.4 Expenses of the Agents and Lenders;
Indemnity............104
Section 13.5 Right of
Setoff..........................................106
Section 13.6 Governing Law;
Jurisdiction..............................106
Section 13.7 Waivers;
Amendments......................................107
Section 13.8 Interest Rate
Limitation.................................108
Section 13.9 Severability;
Conflicts..................................108
Section 13.10
Counterparts.............................................108
Section 13.11 Binding
Effect...........................................109
Section 13.12 Subsidiary Solvency Savings
Clause.......................109
Section 13.13 Joint and Several Liability and Related
Matters..........109
Section 13.14 Power of
Attorney........................................110
Section 13.15 USA Patriot
Act..........................................111
Section 13.16
Confidentiality..........................................111
Section 13.17 WAIVER OF JURY
TRIAL.....................................111
Section 13.18 FINAL AGREEMENT OF THE
PARTIES...........................112
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Exhibits:
EXHIBIT 1.1A FORM OF ADDENDUM AND JOINDER AGREEMENT TO REVOLVING
CREDIT
AGREEMENT AND NOTE
EXHIBIT 1.1B FORM OF ADMINISTRATIVE QUESTIONNAIRE
EXHIBIT 1.1C FORM OF FLOOR PLAN PROMISSORY NOTE
EXHIBIT 1.1D FORM OF REQUEST FOR BORROWING (Floor Plan
Loans/Swing Line
Loans)
EXHIBIT 1.1E FORM OF REQUEST FOR BORROWING (Revolving Credit
Loans/Swing
Line Loans)
EXHIBIT 1.1F FORM OF REVOLVING CREDIT PROMISSORY NOTE
EXHIBIT 1.1G FORM OF SECURITY AGREEMENT
EXHIBIT 1.1H FORM OF SECURITY AGREEMENT (TOYOTA/LEXUS
INVENTORY)
EXHIBIT 1.1I FORM OF SECURITY AGREEMENT (TOYOTA/LEXUS
NON-INVENTORY)
EXHIBIT 1.1J FORM OF GUARANTY AGREEMENT
EXHIBIT 2.8 FORM OF NOTICE OF DRAFTING AGREEMENT
EXHIBIT 5.18(b) FORM OF NEW LENDER AGREEMENT
EXHIBIT 5.18(c) FORM OF COMMITMENT INCREASE AGREEMENT
EXHIBIT 8.1(f) FORM OF LEGAL OPINION [TO COME]
EXHIBIT 9.5(c) FORM OF COMPLIANCE CERTIFICATE
EXHIBIT 9.5(g) FORM OF AVAILABILITY ANALYSIS
EXHIBIT 9.18 FORM OF NEW ACQUISITION REPORT
EXHIBIT 13.3(b) FORM OF ASSIGNMENT AND ACCEPTANCE
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Schedules:
SCHEDULE 1.1(a) CONCENTRATION ACCOUNTS
SCHEDULE 1.1(b) LENDERS AND COMMITMENTS
SCHEDULE 1.1(c) PLATFORM ACCOUNTS
SCHEDULE 1.1(d) ENTITIES ENGAGED IN TRUCK OPERATIONS
SCHEDULE 1.1(e) PLATFORM SUBSIDIARIES
SCHEDULE 7.8(a) LITIGATION
SCHEDULE 7.16(g) EXISTING LIENS
SCHEDULE 7.18 SUBSIDIARIES
SCHEDULE 7.19 LOCATIONS OF INVENTORY
SCHEDULE 7.20 DEALER FRANCHISE AGREEMENTS
SCHEDULE 10.1(b) EXISTING INDEBTEDNESS
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THIS CREDIT AGREEMENT dated as of March 23, 2005, is entered
into among
ASBURY AUTOMOTIVE GROUP, INC., a Delaware corporation (the
"Company"), each of
the Subsidiaries of the Company listed on the signature pages
hereof and such
other Subsidiaries of the Company which hereafter may become
parties to this
Agreement (the "Floor Plan Borrowers"; the Company and the Floor
Plan Borrowers
are sometimes referred to herein as, individually, a "Borrower,"
and
collectively, the "Borrowers"), each of the lenders listed on
the signature
pages hereof or that may become party hereto pursuant to Section
5.17 or Section
13.3 (the "Lenders"), JPMORGAN CHASE BANK, N.A., as
Administrative Agent for the
Lenders (in such capacity, together with any successor in such
capacity pursuant
to Section 12.6, the "Agent"), JPMORGAN CHASE BANK, N.A., as
Floor Plan Agent
for the Lenders (in such capacity, together with any successor
in such capacity
pursuant to Section 12.13, the "Floor Plan Agent"), and BANK OF
AMERICA, N.A.,
as Syndication Agent.
R E C I T A L S
WHEREAS, the Company and each of the other Borrowers have
requested the
Lenders, the Agent and the Floor Plan Agent to enter into this
Credit Agreement
and extend the loans herein described, and said parties have
agreed to do so
pursuant to the terms hereof;
NOW, THEREFORE, in consideration of the mutual covenants and
agreements
herein contained, the parties hereto agree as follows:
ARTICLE I.
CERTAIN DEFINED TERMS, ACCOUNTING TERMS AND CONSTRUCTION
Section 1.1 Certain Defined Terms. As used in this Agreement,
the
following terms shall have the following meanings:
"ABR Borrowing" means a Borrowing consisting of one or more
Alternate
Base Rate Loans.
"Account" means any "account" as such term is defined in the
UCC, now
or hereafter owned by the Company or any of its Subsidiaries ,
including rights
to payment for goods and services sold or leased, whether now in
existence or
hereafter arising in the future.
"Addendum" means the form of Addendum and Joinder Agreement
substantially in the form of Exhibit 1.1A.
"Adjusted Net Worth" means, for any date of determination,
Stockholders' Equity minus (i) fifty percent (50%) of the Net
Income of the
Company and its Subsidiaries on a consolidated basis (but only
to the extent
such amount is positive) subsequent to December 31, 2003 and
(ii) 100% of the
net proceeds (cash and non-cash) from the issuance of equity
subsequent to
December 31, 2003, and plus, to the extent deducted from
Stockholders' Equity
subsequent to December 31, 2003, the amount of any non-cash
impairment charges
related to goodwill, other intangible or long-lived assets.
"Adjusted Total Indebtedness" means, for any date of
determination, on
a consolidated basis, Indebtedness of the Company and its
Subsidiaries, minus
Floor Plan Indebtedness.
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"Administrative Questionnaire" means an Administrative
Questionnaire in
the form of Exhibit 1.1B hereto, which each Lender shall
complete and provide to
the Agent on or prior to the Closing Date or delivered by any
new Lenders after
the Closing Date pursuant to Section 13.3.
"Affiliate" of any Person means any other Person who directly
or
indirectly beneficially owns or controls five percent (5%) or
more of the total
voting power of shares of capital stock of such Person having
the right to vote
for directors under ordinary circumstances, any Person
controlling, controlled
by or under common control with any such Person (within the
meaning of Rule 405
under the Securities Act of 1933), and any director or executive
officer of such
Person.
"Agency Fee(s)" has the meaning specified in Section 5.4(b).
"Agent" has the meaning specified in the introduction to
this
Agreement.
"Agent's Letter" has the meaning specified in Section
5.4(b).
"Agreement" shall mean this Revolving Credit Agreement.
"Alternate Base Rate" means, for any day, a fluctuating rate per
annum
(rounded upwards to the next highest one-eighth (?) of one
percent (1%) if not
already an integral multiple of one-eighth (?) of one percent
(1%)) equal to the
greater of (a) the Prime Rate in effect on such day, and (b) the
Federal Funds
Effective Rate in effect on such day plus one-half (1/2) of one
percent (1%).
"Prime Rate" means, for any day, the rate most recently
announced by JPMorgan
Chase Bank, N.A., as its prime lending rate for unsecured
commercial loans in
the U.S., as in effect from time to time, automatically
fluctuating upward and
downward with and, at the time specified in each such
announcement, without
notice to any Borrower or any other Person, which prime rate may
not necessarily
represent the lowest or best rate actually charged to a
customer. "Federal Funds
Effective Rate" shall mean, for any day, an interest rate per
annum equal to the
weighted average of the rates on overnight federal funds
transactions with
members of the Federal Reserve System arranged by federal funds
brokers on such
day, as published for such day (or, if such day is not a
Business Day, for the
next preceding Business Day) by the Federal Reserve Bank of New
York, or, if
such rate is not so published for any day which is a Business
Day, the average
of the quotations for such day on such transactions received by
the Agent from
three federal funds brokers of recognized standing selected by
it. Any change in
the Alternate Base Rate due to a change in the Prime Rate or the
Federal Funds
Effective Rate shall be effective on the effective date of such
change in the
Prime Rate, or the Federal Funds Effective Rate,
respectively.
"Alternate Base Rate Loan" means any Loan with respect to which
the
Company shall have selected an interest rate based on the
Alternate Base Rate in
accordance with the provisions of this Agreement.
"Applicable Lending Office" means, with respect to a Lender,
such
Lender's Domestic Lending Office in the case of an Alternate
Base Rate Loan and
such Lender's Eurodollar Lending Office in the case of a
Eurodollar Loan.
"Applicable Margin" means, on any date, with respect to
Eurodollar
Loans or Alternate Base Rate Loans that are Revolving Credit
Loans, the
applicable percentages set forth below based upon the Total
Leverage Ratio in
effect as of such date.
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Total Leverage Eurodollar Alternate Base Commitment
Ratio Margin Rate Margin Fee Rate
Level 1 x > 4.00 3.00% 1.50% .375%
Level 2 3.50 < x < 4.00 2.75% 1.25% .375%
-
Level 3 3.00 < x < 3.50 2.50% 1.00% .375%
-
Level 4 2.50 < x < 3.00 2.25% .75% .375%
-
Level 5 x < 2.50 2.00% .50% .375%
-
"Assignment and Acceptance" has the meaning specified in
Section
13.3(b).
"Auto Dealer" means a Person engaged in the sale of New and/or
Used
Motor Vehicles pursuant to a franchise or licensing agreement
with a
Manufacturer and related operations.
"Availability Analysis" means the calculations required by
Exhibit
9.5(g), which shall include a calculation of the Revolving
Credit Loan Advance
Limit.
"Board" means the Board of Governors of the Federal Reserve
System of
the United States.
"Book Value" means the net book value of an asset pursuant to
GAAP.
"Borrower" or "Borrowers" has the meaning specified in the
introduction
to this Agreement.
"Borrowing" means a Loan or a group of Loans of a single Type
made by
the Lenders on a single date and as to which a single Interest
Period is in
effect.
"Borrowing Date" means, with respect to each Borrowing, the
Business
Day upon which the proceeds of such Borrowing are made available
to any
Borrower.
"Business Day" means a day when the Agent and banking
institutions
generally are open for business in New York, New York and in
Houston, Texas, and
if the applicable Business Day relates to any Eurodollar Loan, a
day on which
dealings are carried on in the London interbank market and
commercial banks are
open for domestic or international business in London,
England.
"Capital Lease" means any lease required to be accounted for as
a
capital lease under GAAP.
"Cash Collateral Account" has the meaning specified in Section
6.8(a).
"Change of Control" means (i) the direct or indirect sale,
transfer,
conveyance or other disposition, in one or a series of related
transactions, of
(x) the voting stock in the Company, the result of which is that
a Person other
than a Permitted Holder becomes the beneficial owner, directly
or indirectly of
more than 50% of the voting stock of the Company, measured by
voting power
rather than number of shares or (y) all or substantially all of
the assets of
the Company, or (ii) a Change of Control as defined in the
Indenture. As used
herein, "Permitted Holder" means those direct and indirect
beneficial owners of
the voting stock of the Company as of the Closing Date. As used
herein, voting
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stock of any Person as of any date means the capital stock of
such Person that
at such date is entitled to vote in the election of the Board of
Directors of
such Person.
"Closing Date" means the Business Day on which all of the
following
shall have occurred: (a) counterparts of this Agreement and all
of the Loan
Documents shall have been executed and delivered by each
Borrower, each Lender
and the Agent and (b) all of the other conditions set forth in
Section 8.1 shall
have been satisfied or waived.
"Code" means the Internal Revenue Code of 1986, as amended from
time to
time.
"Collateral" means the collateral described in each of the
Security
Documents.
"Commitment" means at any time (a) for each Lender, the sum of
(i) such
Lender's Revolving Credit Loan Commitment plus (ii) such
Lender's Floor Plan
Loan Commitment, each as in effect at such time; and (b) for the
Swing Line
Bank, its obligation to make Swing Line Loans to the Company up
to the amount of
the Revolver Swing Line Commitment and to the Floor Plan
Borrowers up to the
amount of the Floor Plan Swing Line Commitment, as the same may
be increased or
decreased pursuant to the provisions of Section 2.3(d)(ii),
Section 3.4, Section
5.5 or Section 5.18.
"Commitment Fees" means, collectively, the Floor Plan Loan
Commitment
Fees and the Revolving Credit Loan Commitment Fees as such terms
are defined in
Section 5.4(a).
"Commitment Increase Agreement" has the meaning specified in
Section
5.18(c).
"Commitment Increase Notice" has the meaning specified in
Section
5.18(a).
"Communications" has the meaning specified in Section 13.1.
"Company" has the meaning specified in the introduction to
this
Agreement.
"Concentration Accounts" means the bank accounts in the name of
the
Company or one of its Subsidiaries and described on Schedule
1.1(a) hereto (as
such may be supplemented or changed from time to time), and into
which bank
accounts the cash from the Floor Plan Borrower Dealership
Accounts or the
Platform Accounts, as the case may be, is swept on a regular
basis in accordance
with the Company's cash management system.
"Confidential Information Memorandum" means the Confidential
Information Memorandum dated December, 2004 furnished by J.P.
Morgan Securities
Inc. and Banc of America Securities LLC, as Joint Bookrunners
and Co-Lead
Arrangers relating to the credit facilities evidenced by this
Agreement.
"Consolidated EBITDA" means EBITDA of the Company and its
Subsidiaries,
determined on a consolidated basis.
"Consolidated Pro Forma EBITDA" means the Pro Forma EBITDA of
the
Company and its Subsidiaries, determined on a consolidated
basis.
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"Current Ratio" means, as of any date of determination, for the
Company
and its Subsidiaries on a consolidated basis, the ratio of (a)
current assets as
of such date plus the then undrawn amounts of the Revolving
Credit Loan Advance
Limit to (b) the sum of current liabilities plus (to the extent
not otherwise
included in current liabilities) the then outstanding balance of
all Floor Plan
Indebtedness as of such date.
"Curtailment Date" means (a) with respect to a New Motor
Vehicle, three
hundred sixty-five (365) days from the date it is Deemed
Floored, (b) with
respect to a Rental Motor Vehicle, three hundred sixty-five
(365) days from the
date it is Deemed Floored, (c) with respect to a Demonstrator,
the earlier of
(i) three hundred sixty-five (365) days from the date it is
Deemed Floored and
(ii) the date that such Motor Vehicle no longer qualifies as a
Demonstrator, and
(d) with respect to a Used Motor Vehicle, one hundred twenty
(120) days from the
date it is Deemed Floored.
"Dealer Access System" has the meaning specified in Section
2.11.
"Dealer Franchise Agreement" has the meaning specified in
Section 7.20.
"Dealer Location" means any physical site at which any
Subsidiary of
the Company operates a Motor Vehicle dealership, repair or
service facility.
"Deemed Floored" means with respect to a Motor Vehicle, the date
a
Floor Plan Loan Borrowing is advanced by the Floor Plan Agent
for such Motor
Vehicle.
"Default" means any event or condition which, with the lapse of
time or
giving of notice or both, would constitute an Event of
Default
"Demonstrator" means a Motor Vehicle that (i) has not been
previously
titled (other than to a Floor Plan Borrower in accordance with
applicable law),
(ii) is the current model year or last model year, (iii) has an
odometer reading
of less than 7,500 miles and (iv) is designated by the
applicable Auto Dealer as
such.
"Disposition" means the sale, lease, conveyance or other
disposition of
property.
"Dollars" and the symbol "$" mean the lawful currency of the
United
States of America.
"Domestic Lending Office" means, with respect to any Lender, the
office
of such Lender specified as its "Domestic Lending Office" in its
Administrative
Questionnaire or such other office as such Lender may hereafter
designate from
time to time as its "Domestic Lending Office" by written notice
to the Company
and the Agent.
"Draft" means a draft on a Floor Plan Borrower's account with
the Floor
Plan Agent made by a Manufacturer in accordance with the terms
of a Drafting
Agreement or in a form commonly used by the applicable Floor
Plan Borrower.
"Drafting Agreement" means an agreement (whether or not issued
in the
form of a letter of credit) by and among the Floor Plan Agent, a
Floor Plan
Borrower and a Manufacturer, entered into for the account of a
Floor Plan
Borrower (and in some cases acknowledged or countersigned by a
Floor Plan
Borrower) under which a Manufacturer is entitled to submit
Drafts to the Floor
5
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Plan Agent (via ACH electronic transfer or otherwise) for
payment of invoices
identifying one or more Motor Vehicles delivered or shipped to
such Floor Plan
Borrower, on terms and conditions consistent with the usual
customs and
practices in effect from time to time for the automobile
industry.
"Earnings Available for Fixed Charges" means, for any period
of
determination, an amount equal to (a) Consolidated EBITDA plus
(b) lease
expenses of the Company and its Subsidiaries on a consolidated
basis minus (c)
capital expenditures in an amount equal to $200,000 per year for
each Dealer
Location from which a Floor Plan Borrower, Silo Borrower or
other Subsidiary
engaged in Truck Operations, sells Motor Vehicles, determined on
a consolidated
basis as reported in the annual audited and the quarterly
unaudited financial
statements of the Company.
"EBITDA" means, for any Person, for any period, Net Income for
such
period, plus, to the extent deducted in the determination of Net
Income and
without duplication with items included in the adjustments under
GAAP to Net
Income in the determination of net income, (a) provisions for
income taxes, (b)
Interest Expense, other than Floor Plan Interest Expense, and
(c) non-cash
income or charges, including depreciation and amortization
expenses.
"Eligible Accounts" means the consolidated net value of all of
the
Accounts of the Company and its Subsidiaries on which the Agent
holds a
perfected, first priority Lien, each of which Accounts meet the
following
criteria on the date of determination:
(a) such Account arises from: (i) the sale or lease of inventory
and
such inventory has been shipped or delivered in conformity with
any
contract therefor to the Person obligated on such Account or
(ii) the
performance of services and such services have been fully
rendered, in each
case, subject to non-material contests;
(b) such Account is owned by the Company or such Subsidiary free
and
clear of all Liens or rights of others other than the Liens and
rights of
the Agent under the Security Documents;
(c) except for amounts due from Manufacturers, the payment due
date of
such Account (or portion of such Account to be included in
Eligible
Accounts) is not more than ninety (90) days from the date of the
original
invoice;
(d) such Account is evidenced by an invoice or other
statement
rendered to the responsible Account debtor or by chattel paper
in favor of
the Company or one of its Subsidiaries that is a Floor Plan
Borrower;
(e) such Account is the valid obligation of the Account
debtor,
enforceable in accordance with its terms and neither the Company
nor any of
its Subsidiaries has received notice that such Account is
subject to any
set-off, counterclaim, defense, allowance or adjustment or that
there is a
dispute, objection or complaint by the Account debtor concerning
its
liability for the Account, and the vehicle or other goods, the
sale of
which gave rise to the Account, have not been returned,
rejected, lost or
damaged;
(f) no notice of an Insolvency Proceeding with respect to the
Account
debtor has been received by the Company or the applicable
Subsidiary;
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<PAGE>
(g) such Account is denominated in Dollars and the relevant
Account
debtor is domiciled in the United States;
(h) such Account together with all other Accounts due from any
one
Account debtor, other than any Manufacturer, do not comprise
more than
twenty percent (20%) of the aggregate Eligible Accounts, unless
otherwise
approved in writing by the Required Lenders;
(i) no more than twenty percent (20%) of the Accounts from one
Account
debtor are ineligible under subparagraph (c) above, in which
case all
Accounts from such Account debtor shall be ineligible; and
(j) the Account is not due from an Affiliate, a Subsidiary of
the
Company or any Subsidiary thereof or employee of any of the
foregoing.
"Eligible Assignee" means (a) any Lender or any Affiliate of
such
Lender other than an Affiliate of a Lender engaged in the
business of automotive
dealerships; (b) a commercial bank organized under the laws of
the United
States, or any state thereof, and having total assets in excess
of one billion
Dollars ($1,000,000,000) and having deposits that are rated in
either of the two
highest generic letter rating categories (without regard to
subcategories) from
either Standard & Poor's Rating Services, a division of The
McGraw-Hill
Companies, Inc. ("S&P") or Moody's Investor's Service, Inc.
("Moody's") or a
comparable nationally recognized national or international
rating agency if S&P
and Moody's are not then rating such banks; (c) a commercial
bank organized
under the laws of any other country which is a member of the
OECD, or a
political subdivision of any such country, and having total
assets in excess of
one billion Dollars ($1,000,000,000) or its equivalent in any
other currency,
provided that such bank is acting through a branch located in
the country in
which it is organized or another country which is also a member
of the OECD; (d)
the central bank of any country which is a member of the OECD;
(e) the finance
subsidiary of a Manufacturer; (f) a fund that engages in making,
purchasing,
holding or investing in, inter alia, bank loans and similar
credits in the
ordinary course of its business; or (g) any other Person
approved by the Agent
and the Company (if such consent is required pursuant to Section
13.3) which
approval, in respect of the Company, shall not be unreasonably
withheld.
"ERISA" means the Employee Retirement Income Security Act of
1974,
together with the regulations thereunder, in each case as in
effect from time to
time. References to sections of ERISA shall be construed to also
refer to any
successor sections.
"ERISA Affiliate" means any corporation, trade or business that
is,
along with the Company, a member of a controlled group of
corporations or a
controlled group of trades or businesses, as described in
Sections 414(b) and
414(c), respectively, of the Code or Section 4001(a)(14) of
ERISA.
"Eurodollar Borrowing" means a Borrowing comprised of one or
more
Eurodollar Loans.
"Eurodollar Lending Office" means, with respect to each Lender,
the
office of such Lender which such Lender has designated as its
"Eurodollar
Lending Office" in its Administrative Questionnaire or such
other office of such
Lender as such Lender may hereafter designate from time to time
as its
"Eurodollar Lending Office" by notice to the Company and the
Agent.
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<PAGE>
"Eurodollar Loan" means any Floor Plan Loan or any Loan with
respect to
which the Company shall have selected an interest rate based on
the LIBO Rate in
accordance with the provisions of this Agreement.
"Event of Default" means either a Floor Plan Event of Default or
a
Revolving Credit Event of Default.
"Federal Funds Effective Rate" has the meaning specified in
the
definition of "Alternate Base Rate."
"Fixed Charge Coverage Ratio" means the ratio of (a) Earnings
Available
for Fixed Charges to (b) Fixed Charges.
"Fixed Charges" means, for any period of determination, the sum
of (i)
Interest Expense minus interest paid on Floor Plan Indebtedness,
(ii) scheduled
amortization of the principal portion of all funded
Indebtedness, (iii) lease
expenses, and (iv) the cash portion of income taxes, in each
case, for the
Company and its Subsidiaries, determined on a consolidated
basis.
"Fleet Motor Vehicles" means one of a large group of New Motor
Vehicles
sold to a Person (e.g., a rental car agency) which purchases
significant volumes
of vehicles for short-term use.
"Floor Plan Adjustment Date" means the first Business Day of
each
calendar month.
"Floor Plan Advance Limit" means (a) with respect to New
Motor
Vehicles, Rental Motor Vehicles purchased from a Manufacturer
with which the
purchasing Floor Plan Borrower has a signed Dealer Franchise
Agreement and
Demonstrators, the wholesale purchase price invoiced by a
Manufacturer to the
Floor Plan Borrower, and (b) with respect to Used Motor Vehicles
and Rental
Motor Vehicles other than those described in (a) above, the Book
Value of such
vehicles to such Floor Plan Borrower; provided, (i) with respect
to Used Motor
Vehicles, the aggregate amount of Floor Plan Loans outstanding
at any time may
not exceed an amount equal to seventy percent (70%) of the
aggregate Book Value
of all Used Motor Vehicles owned by the Floor Plan Borrowers,
and (ii) with
respect to Rental Motor Vehicles and Demonstrators, the
aggregate amount of
Floor Plan Loans outstanding at any time may not exceed
Twenty-Five Million and
No/100 Dollars ($25,000,000).
"Floor Plan Agent" has the meaning specified in the introduction
to
this Agreement.
"Floor Plan Borrower" means any Wholly-Owned Subsidiary of the
Company
(excluding any entity engaged in Truck Operations) that is an
Auto Dealer party
to this Agreement, and has granted a first priority Lien to the
Agent for the
benefit of the Lenders on certain of its property that is
Collateral in
accordance with the Security Documents, subject only to
Permitted Liens.
"Floor Plan Borrower Dealership Account" means, with respect to
a Floor
Plan Borrower, the bank account of such Floor Plan Borrower into
which are
deposited the proceeds paid to such Floor Plan Borrower from the
sale, lease or
servicing of vehicles or spare parts.
"Floor Plan Event of Default" means the occurrence of one of the
events
specified in Section 11.3.
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<PAGE>
"Floor Plan Indebtedness" means all secured Indebtedness of the
Company
and its Subsidiaries incurred to finance Motor Vehicles.
"Floor Plan Interest Expense" means that component of the
Company's
aggregate Interest Expense, determined on a consolidated basis,
attributable to
Floor Plan Indebtedness.
"Floor Plan Lenders" shall mean all Lenders having a Floor Plan
Loan
Commitment.
"Floor Plan Loan" has the meaning specified in Section 2.1.
"Floor Plan Loan Commitment" means for each Floor Plan Lender,
its
obligation to make Floor Plan Loans to the Floor Plan Borrowers
up to the amount
set forth opposite such Lender's name on Schedule 1.1(b) under
the caption
"Floor Plan Loan Commitments" (as the same may be permanently
terminated,
reduced or increased from time to time pursuant to the
applicable provisions of
Section 2.3(d)(ii), Section 3.4, Section 5.5, Section 5.18 or
Section 11.4 and
as such amount may be increased or decreased from time to time
by an Assignment
and Acceptance pursuant to Section 5.17 or Section 13.3(b)).
"Floor Plan New Swing Rate" means, for a Borrowing, the rate
of
interest per annum equal to the LIBO Rate in effect on the third
Business Day of
the month in which such Borrowing is made plus 1.25%.
"Floor Plan Note" means each of the Notes substantially in the
form of
Exhibit 1.1C, duly issued by the Floor Plan Borrowers to each
Lender in the
aggregate principal face amount of such Lender's Floor Plan Loan
Commitment.
"Floor Plan Swing Line Commitment" means, for the Swing Line
Bank, its
obligation to make Swing Line Loans to the Floor Plan Borrowers
in (i) any
amount requested by the Company (not to exceed the Total Floor
Plan Loan
Commitments) to finance Motor Vehicles prior to the end of the
Transition
Period, and, (ii) thereafter, in an amount not to exceed
$75,000,000, as
determined by the Swing Line Bank in its sole discretion,
provided, the Swing
Line Bank, in its sole discretion, for the purpose of funding
intra-month
advances of Floor Plan Swing Line Loans to finance Motor
Vehicles acquired
pursuant to a Permitted Acquisition, may waive said $75,000,000
limit for up to
thirty (30) days; provided further, the Swing Line Bank shall
provide the Agent
and the Floor Plan Lenders notice of any increase in the Floor
Plan Swing Line
Commitment under this clause (ii) immediately when made; and
provided further,
subject to the provisions of Article IV, the Floor Plan Swing
Line Commitment
shall be a part of the Floor Plan Loan Commitment rather than a
separate,
independent commitment.
"Floor Plan Swing Line Loan" means a Floor Plan Loan made by the
Swing
Line Bank to a Floor Plan Borrower under the Floor Plan Swing
Line Commitment.
"Floor Plan Used Swing Rate" means, for a Borrowing, the rate
of
interest per annum equal to the LIBO Rate in effect on the third
Business Day of
the month in which such Borrowing is made plus 1.375%.
"Fronting Fees" has the meaning specified in Section 6.7(b).
9
<PAGE>
"GAAP" means generally accepted accounting principles as in
effect, as
of the applicable date of determination thereof, from time to
time as set forth
in the opinions, statements and pronouncements of the Accounting
Principles
Board of the American Institute of Certified Public Accountants
and the
Financial Accounting Standards Board applied on a consistent
basis.
"Governmental Authority" means any nation or government, any
state or
other political subdivision thereof, any central bank (or
similar monetary or
regulatory authority) thereof, any entity exercising executive,
legislative,
judicial, regulatory or administrative functions of, or
pertaining to,
government.
"Guarantee" by any Person means all obligations (other than
endorsements in the ordinary course of business of negotiable
instruments for
deposit or collection) of such Person guaranteeing, or in effect
guaranteeing,
in any manner, directly or indirectly, any Indebtedness or other
obligation of
any other Person (the "Primary Obligor"):
(a) to purchase such Indebtedness or obligation or any
property or assets constituting security therefor,
(b) (i) to advance or supply funds for the purchase or
payment
of such Indebtedness or obligation or (ii) to maintain working
capital
or other balance sheet condition or otherwise to maintain funds
for the
purchase or payment of such Indebtedness or obligation,
(c) to lease property under a Capital Lease or any other
lease, the lessee under which is a Person other than the Company
or
Wholly-Owned Subsidiary or to purchase securities or other
property or
services primarily for the purpose of assuring the owner of
such
Indebtedness or obligation of the ability of the Primary Obligor
to
make payment of such Indebtedness or perform such obligation,
or
(d) otherwise to assure the owner of such Indebtedness or
such
obligation of the Primary Obligor against loss in respect
thereof.
"Guarantor" means the Company and all Subsidiaries of the
Company,
other than the Toyota/Lexus Floor Plan Borrowers, that are
parties to the
Guaranty Agreement.
"Guaranty Agreement" means each Guaranty Agreement,
substantially in
the form of Exhibit 1.1J, executed by the Guarantors (other than
the
Toyota/Lexus Floor Plan Borrowers).
"Hedging Agreement" shall mean any interest rate or currency
swap, rate
cap, rate floor, rate collar, forward agreement, or other
exchange or rate
protection agreement entered into in the ordinary course of
business for risk
prevention purposes and not for speculative purposes.
"Honor Date" has the meaning specified in Section 6.3(b).
10
<PAGE>
"Indebtedness" of any Person means, without duplication:
(a) any obligation of such Person for borrowed money,
including any obligation of such Person evidenced by bonds,
debentures,
notes, letter of credit reimbursement agreements or other
similar debt
instruments,
(b) all obligations of such Person under conditional sale or
other title retention agreements relating to property purchased
by such
Person, regardless of whether any personal liability exists in
respect
thereof,
(c) any obligation of such Person for the deferred purchase
price of any property or services, regardless of whether any
personal
liability exists in respect thereof,
(d) obligations in respect of Capital Leases of such Person,
(e) all Guarantees by such Person, provided however, that a
Guarantee will not be considered Indebtedness if the
underlying
obligation secured by such Guarantee would not constitute
Indebtedness
under this Agreement,
(f) any Indebtedness of another Person secured by a Lien on
any asset of such first Person, whether or not such Indebtedness
is
assumed by such first Person,
(g) any Indebtedness consisting of preferred stock of a
Person
having a mandatory redemption prior to the Maturity Date,
and
(h) any cash liability with respect to Hedging Agreements.
For purposes of this definition, the term "Indebtedness" shall
not
include the following direct and/ or contingent obligations: (i)
credit
facilities providing immediate credit on deposited dealer
drafts; (ii) check
guarantee letters for payment of sales tax, title, license and
other taxes or
fees; and (iii) direct or contingent obligations for risk
products associated
with the Company's depository, treasury, merchant processing and
other similar
products and services incurred in the ordinary course of
business
"Indemnitee" has the meaning specified in Section 13.4(b).
"Indenture" means the Indenture governing those certain
$200,000,000,
8% Senior Subordinated Notes due 2014, issued by the Company, in
the form as it
exists on the Closing Date.
"Insolvency Proceeding" means (a) any case, action or
proceeding
relating to bankruptcy, reorganization, insolvency, liquidation,
receivership,
dissolution, winding-up or relief of debtors, or (b) any general
assignment for
the benefit of creditors, composition, marshaling of assets for
creditors, or
other similar arrangements in respect of its creditors generally
or any
substantial portion of a Person's creditors, undertaken under
federal law.
"Intercreditor Agreements" mean those certain intercreditor
agreements,
reasonably satisfactory to the Agent, the Floor Plan Agent and
the Required
Lenders, executed in connection herewith between the Agent and
certain parties
providing (i) Permitted New Vehicle Floor Plan Indebtedness to
Silo Borrowers,
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<PAGE>
(ii) Indebtedness described in Section 10.1(p) and (iii) floor
plan financing to
entities engaged in Truck Operations.
"Interest Expense" means, for any Person, determined on a
consolidated
basis, the sum of all interest on Indebtedness paid or payable
(including the
portion of rents payable under Capital Leases allocable to
interest, but
excluding interest allowances from Manufacturers) plus all
original issue
discount and other interest expense associated with Indebtedness
amortized or
required to be amortized in accordance with GAAP.
"Interest Payment Date" means, (a) with respect to any Floor
Plan Loan
that is a Eurodollar Loan (including Floor Plan Swing Line
Loans), the fifth
(5th) Business Day of each month in arrears, (b) with respect to
Revolving
Credit Loans that are Eurodollar Loans, the last Business Day of
the Interest
Period applicable to each such Loan (and in addition, in the
case of any
Interest Period of six months, the day that would have been the
Interest Payment
Date of such Interest Period if such Interest Period had been
three months), (c)
with respect to Revolving Credit Loans that are Alternate Base
Rate Loans, on
the first Business Day of each January, April, July and October
of each year in
arrears, commencing April 1, 2005, and (d) with respect to
Revolving Credit
Swing Line Loans on the date said Loan is due and payable.
"Interest Period" means: with respect to:
(a) Floor Plan Loans (other than Swing Line Loans) that are
Eurodollar Loans, the period commencing on the date of such
Eurodollar
Loan and ending on the numerically corresponding day (or, if
there is
no numerically corresponding day, on the last day) of the
following
month; provided, that (i) if any Interest Period would end on a
day
that shall not be a Business Day, such Interest Period shall
be
extended to the next succeeding Business Day and (ii) no
Interest
Period shall end later than the Maturity Date; and
(b) Revolving Credit Loans (other than Swing Line Loans)
that
are Eurodollar Loans, the period commencing on the date of
such
Eurodollar Loan and ending on the numerically corresponding day
(or, if
there is no numerically corresponding day, on the last day) of
the
calendar month that is one, two, three or six months thereafter,
as the
Company may elect; provided, that (i) if any Interest Period
would end
on a day that shall not be a Business Day, such Interest Period
shall
be extended to the next succeeding Business Day, and (ii) no
Interest
Period shall end later than the Maturity Date;
"Inventory Detail Report" means a report delivered pursuant to
Section
9.5(f) by the Company and the Floor Plan Borrowers (on an
individual basis)
which breaks out in detail the New Motor Vehicles, Rental Motor
Vehicles, Used
Motor Vehicles and Demonstrators held by such Floor Plan
Borrower.
"Investment" means, as to any Person, any investment so
classified
under GAAP.
"Issue" means, with respect to any Letter of Credit, to issue or
to
extend the expiration date of, or to renew or increase the
amount of, such
Letter of Credit; and the terms "Issued," "Issuing" and
"Issuance" have
corresponding meanings.
12
<PAGE>
"Issuing Bank" means JPMorgan Chase Bank, N.A., in its capacity
as
issuer of one or more Letters of Credit hereunder, together with
any successor
letter of credit issuer and any replacement letter of credit
issuer.
"Lenders" has the meaning specified in the introduction to
this
Agreement, and Lender(s) shall include the Floor Plan Lenders,
the Revolving
Credit Loan Lenders and the Swing Line Bank unless the context
otherwise
requires.
"Letter of Credit" means any letter of credit issued by the
Issuing
Bank pursuant to Article VI.
"Letter of Credit Application" and "Letter of Credit
Amendment
Application" means an application form for Issuance of, and for
amendment of,
Letters of Credit in the then-standard form promulgated by the
Issuing Bank.
"Letter of Credit Commitment" means the obligation of the
Issuing Bank
to Issue, and the obligation of the Lenders severally to
participate in, Letters
of Credit from time to time Issued or outstanding under Article
VI in an
aggregate amount not to exceed on any date the amount of Fifteen
Million and
No/100 Dollars ($15,000,000.00); provided that the Letter of
Credit Commitment
of each Lender is a part of its Revolving Credit Loan
Commitment, rather than a
separate, independent commitment.
"Letter of Credit Fees" has the meaning specified in Section
6.7(a).
"Letter of Credit Obligations" means at any time the sum of (a)
the
aggregate undrawn amount of all Letters of Credit then
outstanding, plus (b) the
amount of all unreimbursed drawings under all Letters of Credit,
including all
outstanding Loans outstanding under Section 6.3(b) or (c).
"Letter of Credit Related Documents" means the Letters of
Credit, the
Letter of Credit Applications, the Letter of Credit Amendment
Applications and
any other document relating to any Letter of Credit, including
any of the
Issuing Bank's standard documents for issuance of Letters of
Credit.
"Letter of Credit Termination Date" has the meaning provided in
Section
6.1(a).
"LIBO Rate" shall mean, with respect to any Eurodollar Borrowing
for
any Interest Period, the rate per annum determined by the Agent
at approximately
11:00 a.m., London time, on the Quotation Day for such Interest
Period by
reference to the British Bankers' Association Interest
Settlement Rates for
deposits in the currency of such Borrowing (as reflected on the
applicable
Telerate screen page), for a period equal to such Interest
Period; provided
that, to the extent that an interest rate is not ascertainable
pursuant to the
foregoing provisions of this definition, the "LIBO Rate" shall
be the average
(rounded upward, if necessary, to the next 1/100 of 1%) of the
respective
interest rates per annum at which deposits in the currency of
such Borrowing are
offered for such Interest Period to major banks in the London
interbank market
by JPMorgan Chase Bank, N.A. at approximately 11:00 a.m., London
time, on the
Quotation Day for such Interest Period.
"Lien" means any mortgage, pledge, hypothecation, judgment lien
or
similar legal process, conditional sale, title retention or
other security
interest or any lease in the nature thereof.
13
<PAGE>
"Loan" means an Alternate Base Rate Loan, a Eurodollar Loan,
a
Revolving Credit Loan, a Floor Plan Loan, or a Swing Line Loan;
and "Loans"
means all such Loans made pursuant to this Agreement.
"Loan Documents" means this Agreement, the Notes, the
Security
Documents, the Agent's Letter, the Administrative Fee Letter,
the Guaranty
Agreement, the Intercreditor Agreements and all other documents
and instruments
executed by the Borrowers or any other Person in connection with
this Agreement
and the Loans.
"Manufacturer" means the manufacturer or a manufacturer
appointed
wholesale distributor of a Motor Vehicle.
"Manufacturer/Dealer Statement" means a financial statement
prepared by
a Floor Plan Borrower for a Manufacturer and delivered to the
Manufacturer on a
periodic basis as required by the Manufacturer.
"Manufacturer's Certificate" means any Manufacturer's statement
of
origin, certificate of origin or any other document evidencing
the ownership or
transfer of ownership of a New Motor Vehicle from a Manufacturer
to a Borrower.
"Margin Stock" has the meaning specified in Regulation U.
"Material Adverse Effect" means, relative to any occurrence of
whatever
nature (including any determination in any litigation,
arbitration or
governmental investigation or proceeding), (i) a material
adverse effect on the
financial condition, business, operations or assets of the
Company and its
Subsidiaries, on a consolidated basis, (ii) a material
impairment of the ability
of the Company or any of its Subsidiaries to perform their
Obligations under the
Loan Documents or (iii) a material impairment of the validity or
enforceability
of the Loan Documents.
"Maturity Date" means March 23, 2008, or the earlier termination
of the
Commitments under Section 5.5, Section 11.2 and Section 11.4
unless extended
pursuant to Section 5.16.
"Maximum Rate" has the meaning specified in Section 13.8.
"Motor Vehicle" means any motorized vehicle approved for highway
use by
any State of the United States.
"Net Income" means for any Person for any period for which the
amount
thereof is to be determined, the net income (or net losses) of
such Person and
its Subsidiaries on a consolidated basis as determined in
accordance with GAAP
after deducting, to the extent included in computing said net
income and without
duplication, (i) the income (or deficit) of any Person (other
than a
wholly-owned Subsidiary of such Person), in which such Person or
any of its
Subsidiaries has any ownership interest, except to the extent
that any such
income has been actually received by such Person or such
Subsidiary in the form
of cash dividends or similar cash distribution, (ii) any income
(or deficit) of
any other Person accrued prior to the date it becomes a
Subsidiary of such
Person or merges into or consolidates with such entity, (iii)
the gain or loss
(net of any tax effect) resulting from the sale of any capital
assets, (iv) any
gains or losses or other income which are non-recurring,
extraordinary or
attributable to discontinued operations, (v) gains or losses
resulting from the
14
<PAGE>
write-up or write-down of any assets, and (vi) any portion of
the net income of
any Subsidiaries which is not available for distribution.
"New Lender" has the meaning specified in Section 5.18(b).
"New Lender Agreement" has the meaning specified in Section
5.18(b).
"New Motor Vehicle" means any Motor Vehicle not previously
titled and
which Motor Vehicle is from the Manufacturer with which the
Person owning said
Motor Vehicle has an executed Dealer Franchise Agreement,
excluding
Demonstrators and Rental Motor Vehicles.
"Note" and "Notes" mean each of the Revolving Credit Notes and
the
Floor Plan Notes.
"Obligations" means all advances, debts, liabilities,
obligations,
covenants and duties, arising under any Loan Document or any
Hedging Agreement
owing by any Borrower or any Subsidiary of any Borrower to any
Lender, the
Agent, the Floor Plan Agent, the Swing Line Bank or the Issuing
Bank, whether
direct or indirect (including those acquired by assignment),
absolute or
contingent, due or to become due, now existing or hereafter
arising.
"OECD" means the Organization for Economic Cooperation and
Development.
"Other Activities" has the meaning specified in Section
12.3.
"Other Financings" has the meaning specified in Section
12.3.
"Other Taxes" has the meaning specified in Section 5.14(b).
"Out of Balance" means that (i) with respect to a Motor Vehicle,
the
outstanding balance of the Floor Plan Loan pursuant to which
such Motor Vehicle
was purchased exceeds the Floor Plan Advance Limit for the
category of such
Motor Vehicle (ii) with respect to Used Motor Vehicles, Rental
Motor Vehicles
and Demonstrators, the aggregate amount of the Floor Plan Loans
outstanding with
respect to such Motor Vehicles exceeds the aggregate Floor Plan
Advance Limit
applicable to such Motor Vehicles or (iii) with respect to a
Floor Plan Loan,
the outstanding balance thereof has not been paid in accordance
with Section
2.5.
"Overage Amount" has the meaning specified in Section
2.3(d)(ii)(4).
"PBGC" means the Pension Benefit Guaranty Corporation and any
entity
succeeding to any or all of its functions under ERISA.
"Permitted Acquisition" has the meaning specific in Section
9.16.
"Permitted Liens" means those Liens described in Section
10.2.
"Permitted New Vehicle Floor Plan Indebtedness" has the
meaning
specified in Section 10.1(o).
"Permitted Real Estate Debt" means Indebtedness of a Borrower
(i)
secured solely by real estate owned by such Borrower, the amount
of which does
not exceed eighty-five percent (85%) of the value of the real
estate securing
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such Indebtedness (determined on a per loan basis), as evidenced
by an appraisal
of the real estate ordered in connection with obtaining such
Indebtedness, and
(ii) for which no Person other than the obligor of such
Indebtedness or the
Company has any liability with respect to such Indebtedness.
"Person" means any natural person, corporation, trust, business
trust,
association, company, limited liability company, joint venture,
partnership or
Governmental Authority.
"Plan" means a "pension plan," as such term is defined in
Section
3(2)(A) of ERISA, established or maintained by the Company or
any of its
Subsidiaries or any ERISA Affiliate or as to which the Company
or any of its
Subsidiaries or any ERISA Affiliate contributes or is a member
or otherwise may
have any liability.
"Platform Account" means a bank account described on Schedule
1.1(c)
hereto (as such may be supplemented or changed from time to
time), which bank
account is held in the name of a Platform Subsidiary and into
which bank account
the cash from the Floor Plan Borrower Dealership Accounts is
swept on a regular
basis in accordance with the Company's cash management
system.
"Platform Subsidiary" means a Subsidiary of the Company listed
on
Schedule 1.1(e) that owns one or more other Subsidiaries that
are Auto Dealers.
"Prime Rate" has the meaning specified in the definition of the
term
"Alternate Base Rate."
"Pro Forma EBITDA" means, for any Person, for any period of
determination, EBITDA of such Person for the immediately
preceding four fiscal
quarters plus (or minus), without duplication, the EBITDA for
such four quarter
period of any Person acquired during such period as if such
acquisition had
occurred on the first day of such four quarter period, provided,
if a
calculation of Pro Forma EBITDA results in an increase in the
Company's
Consolidated EBITDA by 10% or more from the most recent date of
determination,
no such increase above 10% shall be considered a part of any
computation
hereunder unless the applicable calculations of Pro Forma EBITDA
are based on:
(i) audited financial statements from independent auditors
satisfactory to the
Agent, with said calculations being supported by such audited
statements and
(ii) such other information as the Agent may reasonably request
to assist in the
determination of such calculation.
"Pro Forma Floor Plan Interest Expense" means, for any Person,
as of
any period of determination, Floor Plan Interest Expense of such
Person for the
immediately preceding four fiscal quarters plus (or minus),
without duplication,
the Floor Plan Interest Expense for such period of any Person
acquired during
such period, as if acquired on the first day of such period.
"Pro Rata Share of Floor Plan Loan Commitments" means, at any
time,
with respect to any Floor Plan Lender, the percentage
corresponding to a
fraction, the numerator of which shall be the amount of the
Floor Plan Loan
Commitment of such Lender and the denominator of which shall be
the aggregate
amount of the Floor Plan Loan Commitments of all Lenders.
"Pro Rata Share of Revolving Credit Loan Commitments" means, at
any
time, with respect to any Revolving Credit Loan Lender, the
percentage
corresponding to a fraction, the numerator of which shall be the
amount of the
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Revolving Credit Loan Commitment of such Lender and the
denominator of which
shall be the aggregate amount of the Revolving Credit Loan
Commitments of all
Lenders.
"Pro Rata Share of Total Commitments" means, at any time, with
respect
to any Lender, the percentage corresponding to a fraction, the
numerator of
which is such Lender's Commitment and the denominator of which
shall be the
aggregate amount of the Commitments of all Lenders.
"Qualified Sale/Leaseback Transaction" means a sale by any of
the
Borrowers of personal property or real property and related
fixtures and
accessories used in the ordinary course of business, which
property does not
include any Collateral and which property is, in a concurrent
transaction,
leased by such Borrower from the purchaser thereof under a lease
agreement, the
terms of which, as of the date of such transaction, based upon
the immediately
preceding four fiscal quarters of the Company, would not cause
the Company to be
in Default under any of the provisions of this Agreement.
"Quotation Day" shall mean, with respect to any Eurodollar
Borrowing
and any Interest Period, the day on which it is market practice
in the relevant
interbank market for prime banks to give quotations for deposits
in the currency
of such Borrowing for delivery on the first day of such Interest
Period. If such
quotations would normally be given by prime banks on more than
one day, the
Quotation Day will be the last of such days.
"Re-Allocation Date" has the meaning specified in Section
5.18(e).
"Register" has the meaning specified in Section 13.3(d).
"Regulation D" means Regulation D of the Board, as the same is
from
time to time in effect, and all official rulings and
interpretations thereunder
or thereof.
"Regulation T" means Regulation T of the Board, as the same is
from
time to time in effect, and all official rulings and
interpretations thereunder
or thereof.
"Regulation U" means Regulation U of the Board, as the same is
from
time to time in effect, and all official rulings and
interpretations thereunder
or thereof.
"Regulation X" means Regulation X of the Board, as the same is
from
time to time in effect, and all official rulings and
interpretations thereunder
or thereof.
"Rental Motor Vehicle" means a Motor Vehicle less than two years
old
owned by a Floor Plan Borrower and purchased directly from a
Manufacturer as a
New Motor Vehicle and used as a service loaner vehicle or is
periodically
subject to a rental contract with customers of the Floor Plan
Borrower for
loaner or rental periods of up to thirty (30) consecutive days
or is used by
dealership personnel in connection with parts and service
operations.
"Reportable Event" means a Reportable Event as referenced in
Section
4043(b)(3) of ERISA.
"Request for Borrowing" means, in connection with a Floor Plan
Loan or
a Swing Line Loan, under the Floor Plan Commitment, a Request
for Borrowing
substantially in the form attached hereto as Exhibit 1.1D, and
in the case of a
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Revolving Credit Loan or a Swing Line Loan under the Revolving
Credit
Commitment, a Request for Borrowing substantially in the form
attached hereto as
Exhibit 1.1E.
"Required Lenders" means, at any time, Lenders holding 50.1% of
the
Total Commitments or, after all of the Commitments have
terminated, 50.1% of the
Indebtedness outstanding under the Loan Documents, provided that
any Swing Line
Loans shall be allocated among the Lenders pro rata.
"Requirement of Law" means, as to any Person, any law (statutory
or
common), treaty, rule or regulation or determination of any
arbitrator or of a
Governmental Authority, in each case applicable to or binding
upon such Person
or any of its property or to which such Person or any of its
property is
subject.
"Reserve Commitment" has the meaning specified in Section
3.4.
"Restricted Payment" means, as to any Person, any dividend or
other
distribution of assets, properties, cash, rights, obligations or
securities made
by such Person or any Subsidiary of such Person on account of
shares of such
Person's capital stock, or any partnership interest or similar
ownership
interest in such Person, or any purchase, retirement, redemption
or other
acquisition made by such Person or any Subsidiary of such Person
of any of such
Person's capital stock, partnership interest or similar
ownership interest or
warrants, rights or options evidencing a right to acquire such
shares or
interests.
"Revolver Swing Line Commitment" means, for the Swing Line Bank,
its
obligation to make Swing Line Loans to the Company up to an
amount equal to Five
Million and No/100 Dollars ($5,000,000.00), which commitment is
a part of the
Revolving Credit Loan Commitment rather than a separate,
independent commitment.
"Revolving Credit Borrowing Base" means for the Company and
its
Subsidiaries, excluding Toyota/Lexus Floor Plan Borrowers, on a
consolidated
basis the positive difference between:
(i) the sum of the following items, without duplication,
on which the Administrative Agent holds a valid and
perfected first priority Lien:
(a) 100% of the wholesale purchase price of New Motor
Vehicles and Demonstrators that are part of the
Collateral;
(b) 75% of the Book Value of Used Motor Vehicles and
Rental Motor Vehicles that are part of the
Collateral;
(c) 100% of the amount of contracts in transit,
including, without limitation, all accounts, chattel
paper and agreements of third parties to pay the
purchase price of vehicles sold to customers, which
agreements are not yet funded;
(d) 80% of Eligible Accounts, excluding those
described in (c) above;
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(e) 60% of the Book Value of parts inventory;
(f) 50% of the cash deposits in the Concentration
Accounts, Platform Accounts and Floor Plan Borrower
Dealership Accounts and all other deposit accounts in
which the Lenders have a perfected security interest
evidenced by a control agreement with the depository
bank for each such account; and
(g) 50% of the market value of the securities held in
securities accounts in which the Lenders have a
perfected security interest evidenced by a control
agreement with the securities intermediary for each
such account.
and
(ii) 100% of all Floor Plan Loans and Floor Plan Swing Line
Loans.
"Revolving Credit Event of Default" has the meaning specified
in
Section 11.1.
"Revolving Credit Loan" has the meaning specified in Section
3.1.
"Revolving Credit Loan Advance Limit" means, as of any Borrowing
Date
of a Revolving Credit Loan, for the Company and its Subsidiaries
on a
consolidated basis, calculated as of the last day of the most
recently ended
month for which an Availability Analysis has been delivered
under Section
9.5(g), an amount equal to the lesser of (i) the Revolving
Credit Loan
Commitment and (ii) the Revolving Credit Borrowing Base minus,
in each case, the
amount of the Reserve Commitment, if any, in existence at the
time of
determination.
"Revolving Credit Loan Commitment" means for each Revolving
Credit Loan
Lender, its obligation to make Revolving Credit Loans to the
Company up to the
amount set forth opposite such Lender's name on Schedule 1.1(b)
under the
caption "Revolving Credit Loan Commitments" (as the same may be
permanently
terminated or reduced or increased from time to time pursuant to
the applicable
provisions in Section 2.3(d)(ii), Section 3.4, Section 5.5,
Section 5.18 or
Section 11.2 or as such amount may be increased or decreased
from time to time
by an Assignment and Acceptance pursuant to Section 5.17 or
Section 13.3(b)).
"Revolving Credit Loan Lender" shall mean any Lender specified
in
Schedule 1.1(b) as having an Revolving Credit Loan
Commitment.
"Revolving Credit Notes" means each of the Notes substantially
in the
form of Exhibit 1.1F, duly issued by the Company to each Lender
in the aggregate
principal face amount of such Lender's Revolving Credit Loan
Commitment.
"Revolving Credit Swing Line Loan" means a Swing Line Loan made
by the
Swing Line Bank under the Revolver Swing Line Commitment.
"Sale Dated" means, in connection with the sale of a Motor
Vehicle,
that closing of the sale of such Motor Vehicle is pending
financing or other
contingencies.
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"Security Agreement" means the Security and Pledge Agreement
substantially in the form of Exhibit 1.1G hereto, executed by
each of the
Borrowers (other than the Toyota/Lexus Floor Plan Borrowers),
the Platform
Subsidiaries and all other Subsidiaries of the Company in favor
of the Agent for
the benefit of the Lenders covering the Collateral described
therein, as
amended, restated or otherwise modified from time to time.
"Security Agreement (Toyota/Lexus Inventory)" means the Security
and
Pledge Agreement substantially in the form of Exhibit 1.1H
hereto, executed by
each of the Toyota/Lexus Floor Plan Borrowers in favor of the
Agent for the
benefit of the Lenders covering the Collateral of the
Toyota/Lexus Floor Plan
Borrowers described therein.
"Security Agreement (Toyota/Lexus Non-Inventory)" means the
Security
and Pledge Agreement substantially in the form of Exhibit 1.1F,
executed by each
of the Toyota/Lexus Floor Plan Borrowers in favor of the Agent
for the benefit
of the Lenders covering the Collateral of the Toyota/Lexus Floor
Plan Borrowers
described therein.
"Security Documents" means the Security Agreement, the
Security
Agreement (Toyota/Lexus Inventory), the Security Agreement
(Toyota/Lexus
Non-Inventory) any deposit account control agreements and
securities account
control agreements that are required by the Security Agreement
or the Security
Agreement (Toyota/Lexus Non-Inventory), the Intercreditor
Agreements, and any
and all other agreements or instruments now or hereafter
executed and delivered
by any Borrower or any other Person in connection with, or as
security for, the
payments or performance of any of the Obligations.
"Silo Borrowers" means those Subsidiaries engaged in the sale of
New
Motor Vehicles manufactured by Ford Motor Company (including
Mazda) or General
Motors Corporation or any of their subsidiaries, pursuant to a
Dealer Franchise
Agreement with such Manufacturers.
"Stockholders' Equity" means, as of any date of determination,
the
consolidated stockholders' equity of the Company and its
Subsidiaries determined
in accordance with GAAP, after eliminating all intercompany
items and after
deducting from stockholders' equity such portion thereof as is
properly
attributable to minority interests in Subsidiaries as reflected
in the financial
statements most recently delivered.
"Subordinated Indebtedness" means unsecured subordinated
Indebtedness
of the Company (which may be guaranteed by the Subsidiaries of
the Company on an
unsecured basis) provided, such Indebtedness (a) is subordinated
to payment of
the Obligations on terms that are, in the aggregate, no less
favorable to the
holders of the senior indebtedness in any material respect than
the
subordination provisions contained in the Indenture, (b) does
not have a
maturity earlier than the Maturity Date, and (c) has terms that
are no more
restrictive than the terms of the Loan Documents, and further
provided, after
giving effect to the issuance of such Indebtedness, no Event of
Default shall
have occurred and be continuing or would occur as a result
thereof.
"Subsidiary" means any Person of which or in which any other
Person
(the "Parent") or any other Subsidiary of the Parent owns
directly or indirectly
fifty percent (50%) or more of:
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(a) the combined voting power of all classes of stock having
general voting power under ordinary circumstances to elect a
majority
of the board of directors of such Person, if it is a
corporation;
(b) the capital interest or profits interest of such Person,
if it is a partnership, joint venture or similar entity; or
(c) the beneficial interest of such Person, if it is a
trust,
association or other unincorporated organization.
"Swing Line Bank" means JPMorgan Chase Bank, N.A. and its
successors
and assignees as provided in this Agreement.
"Swing Line Loan" has the meaning specified in Section
4.1(a).
"Swing Line Minimum Amount" means Ten Million and No/100
Dollars
($10,000,000), which shall be the minimum amount remaining
outstanding as of
each Floor Plan Adjustment Date, and which amount may change
from time to time
as the Company and the Floor Plan Agent shall mutually
agree.
"Syndication Agent" has the meaning specified in the
introduction to
this Agreement.
"Taxes" has the meaning specified in Section 5.14(a).
"Total Commitment" means, at any time, the aggregate amount of
the
Commitments of all Lenders, as in effect at such time in
accordance with this
Agreement, which Commitments, as of the Closing Date, shall
equal $800,000,000.
"Total Floor Plan Loan Commitments" means at any time, the
aggregate
amount of the Floor Plan Loan Commitments of all Lenders, as in
effect at such
time in accordance with this Agreement, which Commitments, as of
the Closing
Date, shall equal $650,000,000.
"Total Leverage Ratio" means, as of any date of determination,
for the
Company, the ratio on such date of (a) Adjusted Total
Indebtedness to (b)
Consolidated Pro Forma EBITDA.
"Total Revolving Credit Commitment" means at any time, the
aggregate
amount of the Revolving Credit Loan Commitments of all Lenders,
as in effect at
such time in accordance with this Agreement, which, as of the
Closing Date,
equals $150,000,000.
"Toyota/Lexus Floor Plan Borrowers" means Floor Plan Borrowers
engaged
in the sale of New Motor Vehicles manufactured by Toyota or
Lexus pursuant to a
Dealer Franchise Agreement or licensing agreement with such
Manufacturers.
"Transferee" has the meaning specified in Section 5.14(a).
"Transition Period" has the meaning specified in Section
8.1.
"Truck Financing" means the Indebtedness of any entity engaged
in Truck
Operations to finance the acquisition or purchase of heavy
trucks.
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"Truck Operations" means operations of the entities listed on
Schedule
1.1(d), which are engaged primarily in the sale or service of
Motor Vehicles
with a gross vehicle weight of 16,000 pounds or more.
"Type" means any type of Loan determined with respect to the
interest
option applicable thereto, i.e., a Eurodollar Loan or an
Alternate Base Rate
Loan.
"UCC" means the Uniform Commercial Code as adopted and in effect
in the
State of New York from time to time.
"Used Motor Vehicle" means a Motor Vehicle that is in the
current or
preceding three (3) model years and that is not a New Motor
Vehicle, a
Demonstrator or a Rental Motor Vehicle and either (i) has been
previously titled
or (ii) was previously a Demonstrator and now has an odometer
reading of more
than 7,500 miles.
"Wholly-Owned Subsidiary" means any Person of which the Company
or its
other Wholly-Owned Subsidiaries own directly or indirectly one
hundred percent
(100%) of:
(a) the issued and outstanding shares of stock (except
shares
required as directors' qualifying shares and shares constituting
less
than two percent (2%) of the issued and outstanding shares);
(b) the capital interest or profits interest of such Person,
if it is a partnership, joint venture or similar entity; or
(c) the beneficial interest of such Person, if it is a
trust,
association or other unincorporated organization.
Section 1.2 Accounting Terms. Except as otherwise herein
specifically
provided, each accounting term used herein and calculations
required hereunder
shall have the meaning given it under GAAP.
Section 1.3 Interpretation.
(a) In this Agreement, unless a clear contrary intention
appears:
(i) the singular number includes the plural number and vice
versa;
(ii) reference to any gender includes the other gender;
(iii) the words "herein," "hereof" and "hereunder" and other
words of similar import refer to this Agreement as a
whole and not to any particular Article, Section or
other subdivision;
(iv) reference to any Person includes such Person's
successors and assigns but, if applicable, only if such
successors and assigns are permitted by this Agreement,
and reference to a Person in a particular capacity
excludes such Person in any other capacity or
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<PAGE>
individually, provided that nothing in this clause (iv)
is intended to authorize any assignment not otherwise
permitted by this Agreement;
(v) reference to any agreement (including this Agreement),
document or instrument means such agreement, document
or instrument as amended, supplemented or modified and
in effect from time to time in accordance with the
terms thereof and, if applicable, the terms hereof, and
reference to any Note includes any note issued pursuant
hereto in extension or renewal thereof and in
substitution or replacement therefor;
(vi) unless the context indicates otherwise, reference to
any Article, Section, Schedule or Exhibit means such
Article or Section hereof or such Schedule or Exhibit
hereto;
(vii) the word "including" (and with correlative meaning
"include") means including, without limiting the
generality of any description preceding such term;
(viii) with respect to the determination of any period of
time, the word "from" means "from and including" and
the word "to" means "to but excluding"; and
(ix) reference to any law means such law as amended,
modified, codified or reenacted, in whole or in part,
and in effect from time to time.
(b) The Article and Section headings herein and the Table of
Contents are for convenience only and shall not affect the
construction hereof.
(c) No provision of this Agreement shall be interpreted or
construed against any Person solely because that Person or its
legal
representative drafted such provision.
ARTICLE II.
THE FLOOR PLAN LOANS
Section 2.1 Floor Plan Loan Commitments. Subject to the terms
and
conditions and relying upon the representations and warranties
of the Borrowers
herein set forth, each Floor Plan Lender severally and not
jointly agrees to
make revolving credit loans (each such loan, a "Floor Plan
Loan") to any Floor
Plan Borrower from time to time during the period from the
Closing Date to the
Maturity Date in an aggregate amount not to exceed at any time
such Lender's Pro
Rata Share of Floor Plan Loan Commitments; provided that,
subject to Section
2.3(d)(ii), after giving effect to all Floor Plan Loans,
including all Floor
Plan Swing Line Loans requested on any date, the aggregate
principal amount of
all outstanding Floor Plan Loans and Floor Plan Swing Line Loans
shall not at
any time exceed the Floor Plan Loan Commitments and, further
that the aggregate
principal amount of all outstanding Floor Plan Loans, Swing Line
Loans,
Revolving Credit Loans and Letter of Credit Obligations shall
not at any time
exceed the Total Commitment. Subject to the terms and conditions
hereof, any
Floor Plan Borrower may borrow, prepay and reborrow Floor Plan
Loans under this
Section 2.1.
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Section 2.2 Floor Plan Loans Generally.
(a) Each Floor Plan Loan Borrowing shall be in the minimum
aggregate
principal amount of Five Million and No/100 Dollars
($5,000,000.00) and in
integral multiples of One Million and No/100 Dollars
($1,000,000.00); provided,
a Swing Line Loan under the Floor Plan Loan Commitment may be in
any amount, and
provided, further, that the failure of any Floor Plan Lender to
make any Floor
Plan Loan shall not relieve any other Floor Plan Lender of its
obligations
hereunder.
(b) Each Floor Plan Loan Borrowing shall be a Eurodollar
Borrowing.
Subject to Section 5.14(h), each Floor Plan Lender may fulfill
its obligation to
make Floor Plan Loans by causing, at its option, any domestic or
foreign branch
or Affiliate of such Floor Plan Lender to make such Loan,
provided, the exercise
of such option shall not affect the obligation of the applicable
Floor Plan
Borrower to repay such Loan in accordance with the terms of the
applicable Note.
Section 2.3 Floor Plan Borrowing Procedure.
(a) All Borrowings under the Floor Plan Commitment
(including Floor Plan Swing Line Loans) may be requested by:
(i) a Floor Plan Borrower by means of the Floor Plan
Agent's Dealer Access System, or
(ii) a Manufacturer or other seller of a Motor Vehicle by
means of a Draft, whether pursuant to a Drafting
Agreement or otherwise.
(iii) a Floor Plan Borrower by means of a Request for
Borrowing substantially in the form of Exhibit 1.1D,
containing the information shown thereon;
(b) (i) Drafts, if presented prior to 2:30 P.M., New York
time, will be paid by the end of the next Business Day,
(ii) requests for Floor Plan Borrowings, either in writing
or by means of the Dealer Access System, if presented
prior to 2:30 P.M., New York time, will be funded by
the end of the next Business Day.
(c) The aggregate principal amount of each such Borrowing
including Floor Plan Swing Line Loans shall not exceed the Floor
Plan
Advance Limit for the Motor Vehicles described in any request
for
Borrowing under Section 2.3(a).
(d) Notwithstanding the foregoing,
(i) if the Floor Plan Agent has, at the request of the
Required Lenders or acting in its discretion according
to the terms hereof, taken action to suspend or
terminate Drafts pursuant to one or more Drafting
Agreements and such Drafting Agreements have in fact
been suspended or terminated in accordance with their
respective terms, then the Floor Plan Agent shall not
fund the amount of such Draft; and
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<PAGE>
(ii) if on any day the conditions precedent set forth in
Section 8.3 have been satisfied and a Draft is
presented for payment, the payment of which would cause
(A) the aggregate principal amount of all Floor Plan
Loans then outstanding, plus (B) the aggregate
principal amount of all Floor Plan Swing Line Loans
then outstanding, plus (C) the aggregate principal
amount of all requests for Borrowings of Floor Plan
Loans outstanding as of such day to exceed the Total
Floor Plan Loan Commitments as of such day, then, in
such event:
(1) the Company may either immediately reduce any
pending request for Borrowing (if any) of a Floor Plan Loan
which does not consist of a Draft or make a payment of
principal on Floor Plan Loans and/or Swing Line Loans in an
amount which would prevent the aggregate amounts described
in (A), (B) and (C) above from exceeding the Total Floor
Plan Loan Commitments; or
(2) the Company may request an increase in the
aggregate Floor Plan Loan Commitments pursuant to Section
5.18, and such Draft shall be funded to the extent of such
increase in accordance with said Section; or
(3) if the Company does not elect to act under clause
(1) or (2) above and if there is a Reserve Commitment
available under Section 3.4, then the Total Floor Plan Loan
Commitments shall be increased by the amount of such Reserve
Commitment, and such Draft shall be funded to the extent of
such increase; or
(4) if there is no Reserve Commitment available, the
Floor Plan Agent may, but shall not be obligated to, fund
the payment of such Draft in whole or in part (the amount of
any such funding made by the Floor Plan Agent, the "Overage
Amount"). Nothing in this Agreement shall be construed as a
commitment by or as requiring the Floor Plan Agent to fund
any such Overage Amount. The Floor Plan Agent will notify
the Agent upon the funding of any Overage Amount that is
advanced, and the Agent will then notify the Lenders of any
such Overage Amount.
(e) Each request for Borrowing for a Floor Plan Loan, once
given, shall be irrevocable. Each of the Floor Plan Borrowers
hereby
authorizes the Floor Plan Agent or the Swing Line Bank as
applicable,
to disburse Floor Plan Loans under this Section 2.3 pursuant to
the
instructions of any Person purporting to be a Person identified
by
name on a written list of Persons authorized by each such Floor
Plan
Borrower to make a request for Borrowing for Floor Plan Loans
on
behalf of such Borrower(s). Notwithstanding the foregoing, each
of the
Floor Plan Borrowers acknowledges and agrees that the applicable
Floor
Plan Borrower shall bear all risk of loss resulting from
disbursements
made upon any request.
(f) If at any time between Floor Plan Adjustment Dates, the
repayment of all of a Swing Line Loan would cause the
outstanding
balance of all Swing Line Loans outstanding under the Floor Plan
Loan
Commitments to be paid in full, then such payment shall be
applied to
outstanding Floor Plan Loans and shall be subject to Section
5.10.
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<PAGE>
Section 2.4 Floor Plan Adjustment Date Mechanics.
(a) At or before 11:00 a.m. New York, New York time on each
Floor Plan
Adjustment Date, the Floor Plan Agent shall provide written
(including via
facsimile) notice to the Company of the amount, as of the last
day of the
immediately preceding period since the last Floor Plan
Adjustment Date, of (i)
Floor Plan Loans outstanding, (ii) Swing Line Loans outstanding
under the Floor
Plan Loan Commitments in excess of the Swing Line Minimum
Amount, (iii) all
interest that has accrued on the Floor Plan Loans and Swing Line
Loans under the
Floor Plan Swing Line Commitment during such period and (iv) the
principal
amounts due pursuant to Section 2.5(a) in respect of Motor
Vehicles for which
Curtailment Dates have occurred since the last Floor Plan
Adjustment Date.
(b) At or before 3:00 p.m., New York, New York time, on each
Floor
Plan Adjustment Date, the Company may provide a written
(including via
facsimile) Request for Borrowing to the Floor Plan Agent
designating the amount
of Swing Line Loans under the Floor Plan Swing Line Commitment
in excess of the
Swing Line Minimum Amount, if any, it wishes to remain
outstanding as Swing Line
Loans, how much thereof will bear interest at the Floor Plan New
Swing Rate and
how much thereof will bear interest at the Floor Plan Used Swing
Rate. If, for
any reason, the Company does not deliver the Request for
Borrowing; the Company
shall be deemed to have requested that on such Floor Plan
Adjustment Date, all
Swing Line Loans outstanding under the Floor Plan Commitment in
excess of the
Swing Line Minimum Amount be converted to Floor Plan Loans and
that a portion of
remaining Floor Plan Swing Line Loans shall bear interest at the
Floor Plan New
Swing Rate and the remainder of the Floor Plan Swing Line Loans
shall bear
interest at the Floor Plan Used Swing Rate; the amounts of the
Floor Plan Swing
Line Loans bearing interest at each rate shall be in the same
relative
proportion that existed during the immediately preceding
month.
(c) At or before 12:00 p.m. New York, New York time on the
second
Business Day following each Floor Plan Adjustment Date, the
Floor Plan Agent
shall provide prompt written (including facsimile) notice to the
Administrative
Agent who shall provide prompt written (including facsimile)
notice to the Floor
Plan Lenders advising them of the LIBO Rate that will be in
effect for the Floor
Plan Loans for the following period and (A) that the amount of
Floor Plan Loans
required pursuant to Section 2.4(a) and Section 2.4(b) above is
greater than the
amount required as of the immediately preceding Floor Plan
Adjustment Date and,
with respect to each Floor Plan Lender, the amount of additional
Floor Plan
Loans to be advanced by such Floor Plan Lender, or (B) that the
amount of Floor
Plan Loans required pursuant to Section 2.4(a) and Section
2.4(b) above, has
decreased since the immediately preceding Floor Plan Adjustment
Date and, with
respect to each Floor Plan Lender, the amount of repayment to be
made to such
Floor Plan Lender, or (C) that there is no change in the amount
of Floor Plan
Loans required pursuant to Section 2.4(a) and Section 2.4(b)
above since the
immediately preceding Floor Plan Adjustment Date. If no Request
for Borrowing
has been received, then the Notice shall advise the Lenders of
the amounts and
terms deemed requested pursuant to Section 2.4(b).
(d) At or before 12:00 p.m., New York, New York time, on the
fourth
Business Day of each month, the Floor Plan Agent shall initiate
automatic debits
by ACH transfer from the accounts of the Floor Plan Borrowers in
the amount of
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the interest owed by such Floor Plan Borrower described in
Section 2.4(a)(iii)
above and the amount of principal to be paid pursuant to Section
2.5(a)(iv)
below.
(e) On the fifth Business Day of each month, in accordance with
the
Floor Plan Agent's notice under Section 2.4(c), each Floor Plan
Lender shall,
advance any amounts required in connection with each such Floor
Plan Loan
Borrowing by paying to the Agent in U.S. Dollars and in
immediately available
funds on such day not later than 1:00 p.m., New York, New York
time. Subject to
satisfaction of the conditions set forth in Article VIII,
insofar as it applies
to Floor Plan Loans, and the terms, provisions and conditions
set forth in
Section 2.3 and Section 4.3, the Agent shall promptly and in any
event on the
same day, credit the amounts so received to the account of the
Floor Plan Agent,
or, if a Floor Plan Loan Borrowing shall not occur on such date
because any
condition precedent herein specified shall not have been met,
return the amounts
so received to the respective Floor Plan Lenders. Upon receipt
of such funds the
Floor Plan Agent shall promptly and in any event on the same
day, credit the
amount so received to the account of the applicable Floor Plan
Borrower. On the
same day, the Floor Plan Agent shall credit all amounts received
pursuant to
Section 2.4(d) to the Agent, and the Agent shall pay to the
Lenders their
respective pro rata portion of such amounts.
Section 2.5 Payments; Application of Payments.
(a) Each Floor Plan Borrower shall pay in full an amount equal
to the
Floor Plan Advance Limit with respect to any Motor Vehicle that
has been sold
immediately upon the earliest to occur of: (i) with respect to
Motor Vehicles
other than those described in (ii) and (iii) below, five (5)
Business Days after
the sale thereof, (ii) with respect to Sale Dated Motor Vehicles
or Motor
Vehicles financed by a retail installment contract, consumer
lease agreement or
loan arranged by the Floor Plan Borrower, within ten (10) days
of the date of
such Motor Vehicle was sold (or possession of the Motor Vehicle
transferred to
the buyer, if earlier), (iii) with respect to Fleet Motor
Vehicles, within
thirty (30) days of the date of sale and, (iv) in all cases, one
(1) Business
Day following receipt of payment in full from the sale thereof.
With respect to
Motor Vehicles that are not sold, each Floor Plan Borrower shall
pay in full an
amount equal to the Floor Plan Loan with respect to any Motor
Vehicle on the
fifth Business Day of the month following the Curtailment Date
of such Motor
Vehicle, to the extent payment has not earlier been made. Upon
the funding
thereof, any Overage Amount shall be due and payable by the
Floor Plan Borrower
or Borrowers on whose account or accounts such Overage Amount
was funded in
connection with a Draft under Section 2.3(d)(ii)(4) by the next
Business Day.
(b) Subject to the provisions of Section 2.3(f), payments
required to
be made by any Floor Plan Borrower as set forth in Section
2.5(a) shall be
applied in the following order: (i) first, to the outstanding
principal balance
and then to accrued interest on any Overage Amount, (ii) second,
to the
outstanding principal balance of Floor Plan Swing Line Loans,
(iii) third, to
the outstanding principal balance of Floor Plan Loans funded
from the Reserve
Commitment, and (iv) finally, to the remaining outstanding
principal balance of
the Floor Plan Loans.
(c) Each Floor Plan Borrower shall cause all proceeds from the
sale of
Motor Vehicles financed hereunder to be deposited directly into
the applicable
Floor Plan Borrower Dealership Account.
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Section 2.6 Issuance of Drafting Agreements. Subject to the
terms and
conditions of this Agreement, the Floor Plan Agent shall, at any
time and from
time to time from and after the Closing Date until thirty (30)
Business Days
prior to the Maturity Date, upon the written request of the
Company or the
applicable Floor Plan Borrower, which may be countersigned by
the Company,
accompanied by such other customary documentation related
thereto as the Floor
Plan Agent may reasonably require, issue Drafting Agreements for
the account of
the applicable Floor Plan Borrower.
Section 2.7 Conditions to Execution of Drafting Agreements. (a)
The Floor
Plan Agent shall enter into Drafting Agreements upon request, if
the following
conditions are satisfied, as of the date of issuance of such
Drafting Agreement:
(i) the Company or the applicable Floor Plan Borrower requesting
the
Drafting Agreement shall have delivered to the Floor Plan
Agent
not less than ten (10) Business Days prior to the requested
date
for acceptance of Drafts (or such shorter time as the Floor
Plan
Agent in its sole discretion may permit), a written
application
and such other documentation (including without limitation a
letter of credit agreement if the Drafting Agreement is to
be
issued in the form of a letter of credit) and the terms of
such
documents and of the proposed Drafting Agreement shall
satisfy
the terms hereof;
(ii) the satisfaction of the conditions precedent set forth in
Section
8.3;
(iii) no order, judgment or decree of any Governmental Authority
shall
by its terms purport to enjoin or restrain the Floor Plan
Agent
or any other Person that is a party thereto from entering into
or
issuing such Drafting Agreement; no Requirement of Law
applicable
to the Floor Plan Agent or any other Person that is a party
thereto and no request or directive (whether or not having
the
force of law) from any Governmental Authority with
jurisdiction
over the Floor Plan Agent or any other Person that is a
party
thereto shall prohibit the Floor Plan Agent, or request that
the
Floor Plan Agent refrain, from issuing or entering into
drafting
agreements generally or such Drafting Agreement in particular
or
shall impose upon the Floor Plan Agent any additional
restriction, reserve or capital requirement not in effect on
the
Closing Date, or shall impose upon the Floor Plan Agent any
unreimbursed loss, cost or expense which was not applicable
on
the Closing Date and which the Floor Plan Agent in good
faith
deems material to it; and
(iv) the Floor Plan Agent does not receive written notice from
any
Lender, the Agent or any Borrower, on or prior to the
Business
Day immediately preceding the requested date of entry into
such
Drafting Agreement that one or more of the applicable
conditions
contained in Article VIII insofar as it applies to Floor
Plan
Loans (or in this Section 2.7) has not been satisfied or that
an
Event of Default has occurred and is continuing.
(b) Each application for a Drafting Agreement made by a Floor
Plan
Borrower hereunder shall constitute certification by each of the
Company and
such Floor Plan Borrower of the matters set forth in Section
2.7(a)(i) and
Section 2.7(a)(ii), and the Floor Plan Agent shall be entitled
to rely on such
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certification without any duty of inquiry. Immediately upon the
issuance or
entering into by the Floor Plan Agent of each Drafting
Agreement, each Floor
Plan Lender hereby irrevocably and unconditionally agrees to,
and does hereby,
purchase from the Floor Plan Agent a participation in such
Drafting Agreement in
an amount equal to the product of (i) the Pro Rata Share of
Floor Plan Loan
Commitments of such Floor Plan Lender and (ii) the amount of the
Draft presented
by a Manufacturer under the Drafting Agreement.
(c) The Floor Plan Agent shall take such action as necessary
to
terminate and suspend all Drafting Agreements effective twelve
(12) days prior
to the Maturity Date, and none of the Borrowers shall be
entitled to borrow
under any Drafting Agreement after the date that is ten (10)
days prior to the
Maturity Date, provided, the immediately foregoing is intended
only as a
limitation to the Borrowers' ability to borrow under Drafting
Agreements and not
as an enlargement of the Floor Plan Agent's obligations
hereunder.
Section 2.8 Notice of Issuance of or Entering into Manufacturers
Drafting
Letters. The Floor Plan Agent shall give notice, substantially
in the form of
Exhibit 2.8, to each Floor Plan Lender of the issuance of or
entering into each
Drafting Agreement not later than five (5) Business Days after
issuance of or
entering into such Drafting Agreement, attaching a copy of such
Drafting
Agreement.
Section 2.9 Drafts Under Manufacturer's Drafting Letters.
(a) The applicable Floor Plan Borrower shall be liable for
the
repayment of each Draft submitted by a Manufacturer pursuant to
a Drafting
Agreement. Upon its submission to the Floor Plan Agent, the
Floor Plan Agent
shall request that the Swing Line Bank pay such Draft, unless
such payment would
cause all Floor Plan Loans plus Floor Plan Swing Line Loans to
exceed the Total
Floor Plan Loan Commitments (in which case the provisions of
Section
2.3(d)(ii)(4) shall apply), unless the Drafting Agreement
pursuant to which such
Draft was presented has been terminated or suspended. Such
funding shall
constitute a Floor Plan Swing Line Loan. Notwithstanding the
foregoing, subject
to the terms and conditions of Article XII hereof, the Floor
Plan Agent may take
all actions reasonably necessary to suspend and/or terminate
Drafts in
accordance with Section 11.4 following the occurrence of any
Floor Plan Event of
Default allowing the exercise of remedies under Section
11.4(c).
(b) Notwithstanding the obligation of the Floor Plan Agent or
the
Swing Line Bank to fund a Draft, (i) if at any time any Floor
Plan Borrower has
failed to satisfy the conditions precedent for the Floor Plan
Agent to make a
Floor Plan Loan or for the Swing Line Bank to make a Swing Line
Loan, (ii)
subject to Section 2.3(d)(ii), if at any time the amount of such
Draft would
cause the aggregate amount of Floor Plan Loans plus Floor Plan
Swing Line Loans
to exceed the Total Floor Plan Loan Commitments, or (iii) if a
Default or an
Event of Default has occurred and is continuing, then in any
such event, the
funding of such Draft shall not constitute a waiver of any such
condition,
Default or Event of Default or otherwise in any manner
whatsoever affect the
rights, and remedies available to the Floor Plan Agent, the
Agent, the Swing
Line Bank or any of the Lenders hereunder. In any such event,
the Floor Plan
Borrowers shall remain obligated to pay the amount of any Draft
as set forth
herein and shall have all other duties and obligations
applicable to the Floor
Plan Borrowers under this Agreement. Notwithstanding anything to
the contrary
contained herein, each of the Floor Plan Borrowers shall bear
all risk of loss
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resulting from the payment of any Draft, or any resulting
disbursements of the
Floor Plan Loans or Swing Line Loans, as the case may be,
whether or not due to
the gross negligence, willful misconduct or fraud of any
Manufacturer.
(c) Subject to Section 11.5 hereof, each Floor Plan Lender shall
be
obligated to fund Floor Plan Loans to reimburse the Swing Line
Bank for Floor
Plan Swing Line Loans by making available their respective Pro
Rata Share of
Floor Plan Loan Commitments of the amounts so advanced, all in
accordance with
Section 2.2 hereof; furthermore, any right of the Floor Plan
Agent, acting in
its discretion and not at the direction or with the concurrence
of the Required
Lenders, to terminate or suspend drafting privileges of any
Manufacturer or
otherwise exercise any right or remedy under the terms of this
Agreement shall
be for the sole benefit and protection of the Floor Plan Agent,
and the Floor
Plan Agent shall not owe any duty to any of the other Lenders
with respect to
such rights or remedies or be required to exercise such rights
or remedies to
protect any of the other Lenders. Notwithstanding the foregoing,
the Floor Plan
Lenders shall not be obligated to purchase any portion of any
Overage Amount.
Section 2.10 Obligations Absolute. The Obligations of a Floor
Plan Borrower
under this Agreement and any of the other Loan Documents to
reimburse the Floor
Plan Agent or the Swing Line Bank for Floor Plan Loans and Floor
Plan Swing Line
Loans shall be unconditional and irrevocable. Such obligation
shall be paid
strictly in accordance with the terms of this Agreement and each
such other Loan
Document under all circumstances, including the following: (a)
any lack of
validity or enforceability of such Drafting Agreement or any of
the other Loan
Documents; (b) any change in the time, manner or place of
payment of, or in any
other term of, all or any of the Obligations of any other
Borrower in respect of
any Draft or any Drafting Agreement or any other amendment or
waiver of or any
consent to departure from all or any of the applicable/related
Loan Documents;
(c) the existence of any claim, set-off, defense or other right
that any other
Floor Plan Borrower may have at any time against any
Manufacturer or any other
beneficiary or transferee of any Drafting Agreement (or any
Person for whom any
such beneficiary or such transferee may be acting), the Floor
Plan Agent or any
other Person, whether in connection with this Agreement, the
transactions
contemplated hereby or by the related Loan Documents or any
unrelated
transaction other than the defense of payment; (d) any Draft,
demand,
certificate or other document presented under a Drafting
Agreement proving to be
forged, fraudulent, invalid or insufficient in any respect or
any statement
therein being untrue or inaccurate in any respect; (e) any loss
or delay in the
transmission or otherwise of any document required in order to
make a Draft
under any Drafting Agreement; (f) any payment by the Floor Plan
Agent under any
Drafting Agreement against presentation of a draft or
certificate that does not
strictly comply with the terms of any Drafting Agreement; (g)
any payment made
by the Floor Plan Agent under any Drafting Agreement to any
trustee in
bankruptcy, debtor in possession, assignee for the benefit of
creditors,
liquidator, receiver or other representative of a successor to
any beneficiary
or any transferee of any Drafting Agreement, including any
arising in connection
with any Insolvency Proceeding; (h) any exchange, release or
non-perfection of
any Collateral, or any release or amendment or waiver of or
consent to departure
from all or any of the Obligations of any other Borrower in
respect of any
Drafting Agreement; or (i) any other circumstance that might
otherwise
constitute a defense available to, or discharge of, any other
Borrower other
than the defense of payment. Nothing contained in this Section
shall constitute
a waiver by any Floor Plan Borrower of any claims arising out of
the gross
negligence, bad faith or willful misconduct of the Agent, the
Floor Plan Agent
or the Swing Line Bank.
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Section 2.11 Dealer Access System. The Floor Plan Borrowers may
request
Floor Plan Loans electronically by access to the Floor Plan
Agent's web based
Dealer Access System (the "Dealer Access System"). Requests for
Borrowing
through the Dealer Access System shall be processed by the Floor
Plan Agent in
accordance with and subject to the terms and conditions of this
Agreement. The
Floor Plan Borrowers have requested access to the Dealer Access
System to permit
the Floor Plan Borrowers to access certain account information
relating to the
Floor Plan Loans and to facilitate the making of any payments on
the Floor Plan
Loans by authorizing the Floor Plan Agent to debit any one or
more of the Floor
Plan Borrowers' deposit accounts with the Floor Plan Agent or
with such other
financial institutions as indicated by the Floor Plan Borrowers.
In
consideration for the Floor Plan Agent's granting to the Floor
Plan Borrowers
access to the Dealer Access System to view loan account
information and make
payments, the Floor Plan Borrowers acknowledge responsibility
for the security
of such Floor Plan Borrowers' passwords and other information
necessary for
access to the Dealer Access System, and the Company and each
Floor Plan Borrower
fully, finally, and forever releases and discharges the Agent
and the Floor Plan
Agent and their employees, agents, and representatives from any
and all causes
of action, claims, debts, demands, and liabilities, of whatever
kind or nature,
in law or equity that the Company or any Floor Plan Borrower may
now or
hereafter have, in any way relating to the Company or any Floor
Plan's
Borrower's access to, or use of, the Dealer Access System, other
than those
arising out of the gross negligence, bad faith or willful
misconduct of the
Floor Plan Agent or the Swing Line Bank.
ARTICLE III.
REVOLVING CREDIT LOANS
Section 3.1 Revolving Credit Loan Commitments. Subject to the
terms and
conditions hereof and relying upon the representations and
warranties of the
Company herein set forth, each Revolving Credit Loan Lender
severally and not
jointly agrees to make revolving credit loans to the Company
(each such loan, a
"Revolving Credit Loan") from time to time on any Business Day
during the period
from the Closing Date to the Maturity Date in an aggregate
amount not to exceed
at any time such Lender's pro rata share of the Revolving Credit
Loan Advance
Limit; provided, after giving effect to any Revolving Credit
Loan, the aggregate
amount of all outstanding Revolving Credit Loans, all Revolving
Credit Swing
Line Loans and all outstanding Letter of Credit Obligations
shall not at any
time exceed the Total Revolving Credit Commitments, and further
provided that
the aggregate principal amount of all outstanding Revolving
Credit Loans, Floor
Plan Loans, Swing Line Loans and Letter of Credit Obligations
shall not at any
time exceed the Total Commitment. Subject to the other terms and
conditions
hereof, the Company may, at any time and from time to time,
borrow, prepay and
reborrow Revolving Credit Loans under this Section 3.1.
Section 3.2 Revolving Credit Loans.
(a) Each Revolving Credit Loan Borrowing shall be in the
minimum
aggregate principal amount of One Million Dollars ($1,000,000)
(or the amount of
a Letter of Credit Borrowing or the remaining balance of the
aggregate Revolving
Credit Loan Commitments, if less) and an integral multiple of
One Million
Dollars ($1,000,000) (provided, a Swing Line Loan under the
Revolver Swing Line
Commitment may be in any amount) and shall consist of Revolving
Credit Loans of
the same Type, made by the Revolving Credit Loan Lenders in
accordance with
their respective Pro Rata Share of Revolving Credit Loan
Commitments; provided,
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the failure of any Lender to make any Revolving Credit Loan
shall not relieve
any other Lender of its obligation to lend hereunder.
(b) Each Revolving Credit Loan Borrowing (other than a Swing
Line
Loan under the Revolving Credit Loan Commitment) shall be an ABR
Borrowing or a
Eurodollar Borrowing as the Company may request in a Request for
Borrowing
delivered to the Agent in accordance with Section 3.3. Subject
to Section
5.14(h), each Revolving Credit Loan Lender may fulfill its
Revolving Credit Loan
Commitment with respect to any Eurodollar Loan by causing, at
its option, any
domestic or foreign branch or Affiliate of such Lender to make
such Loan,
provided that the exercise of such option shall not affect the
obligation of the
Company to repay such Loan in accordance with the terms hereof.
Revolving Credit
Loan Borrowings of more than one Type may be outstanding at the
same time.
(c) Each Revolving Credit Loan Lender shall make Revolving
Credit Loans
equal to its then Pro Rata Share of the Revolving Credit Loan
Commitments by
paying the amount required to the Agent in New York, New York in
U.S. Dollars
and in immediately available funds not later than 1:00 p.m., New
York, New York
time, on the proposed Borrowing Date and, subject to
satisfaction of the
conditions set forth in Article VIII, insofar as same applies to
Revolving
Credit Loans, the Agent shall promptly and in any event on the
same Business
Day, credit the amounts so received to the general deposit
account of the
Company maintained with the Agent, or to such other depository
account as shall
be designated by the Company or, if a Borrowing shall not occur
on such date
because any condition precedent herein specified shall not have
been met, return
the amounts so received to the respective Lenders.
Section 3.3 Notice of Revolving Credit Loan Borrowings and
Borrowing
Procedures.
(a) In order to obtain a Revolving Credit Loan, the Company
shall
make an irrevocable written request therefor (or give
irrevocable telephone
notice thereof, confirmed as soon as practicable by written
request) to the
Agent, in the form of a Request for Borrowing (i) in the case of
an ABR
Borrowing, not later than 11:00 a.m., New York, New York time,
one (1) Business
Day before the Borrowing Date of a proposed Revolving Credit
Loan Borrowing,
(ii) in the case of a Eurodollar Borrowing, not later than 11:00
a.m., New York,
New York time, three (3) Business Days before the Borrowing Date
of a proposed
Revolving Credit Loan Borrowing, (iii) and, in the case of a
Swing Line Loan,
not later than 11:00 a.m., New York, New York time on the
Business Day said Loan
is requested. Each Request for Loan Borrowing shall specify (1)
whether the Loan
then being requested is to be an ABR Borrowing or a Eurodollar
Borrowing, or a
Swing Line Loan under the Revolver Swing Line Loan Commitment at
the Alternate
Base Rate, (2) the Borrowing Date (which shall be a Business
Day) and (3) the
aggregate amount thereof and (4) if a Eurodollar Loan is being
requested, the
Interest Period or Interest Periods with respect thereto. If no
election as to
the Type of Revolving Credit Loan Borrowing is specified, such
Borrowing shall
be an ABR Borrowing. If no Interest Period is specified, the
Company shall be
deemed to have selected an Interest Period of one (1) month's
duration. The
Agent shall promptly advise the Lenders of any Request for
Borrowing given by
the Company on the same day such Request for Borrowing is
received pursuant to
this Section 3.3 and of each Lender's pro rata share of the
requested Revolving
Credit Loan Borrowing.
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(b) No more than twelve (12) Revolving Credit Loans may be
outstanding
at any time. For purposes of the foregoing, Borrowings comprised
of Revolving
Credit Loans having different Interest Periods, regardless of
whether they
commence on the same date, shall be considered separate
Loans.
Section 3.4 Reserve Commitment; Suspension of Revolving Credit
Loan.
Notwithstanding the foregoing provisions of this Article III, in
the event that
on any day the aggregate outstanding principal amount of all (a)
Floor Plan
Loans, plus (b) Floor Plan Swing Line Loans, plus (c) requests
for Floor Plan
Loan Borrowings pursuant to Section 2.3(a) exceeds ninety-five
percent (95%) of
the aggregate Floor Plan Loan Commitments as of such date, then
(i) a portion of
the Revolving Credit Loan Commitment (the "Reserve Commitment")
in an amount
equal to the lesser of (y) Ten Million and No/100 Dollars
($10,000,000.00) and
(z) the entire remaining unused portion of the Revolving Credit
Loan Commitment
as of such date, less the Revolving Credit Loan Commitment of
any Revolving
Credit Lender that is not also a Floor Plan Lender, shall be
reserved and shall
no longer be available for funding Revolving Credit Loans but
shall be available
under Section 2.3(d)(ii)(3), and (ii) no further Revolving
Credit Loan
Borrowings (after giving effect to the Reserve Commitment in
clause (i) hereof)
shall be available to the Company until the first Business Day
on which such
condition no longer exists.
Section 3.5 Obligations Absolute. The Obligations of the Company
under this
Agreement and any of the other Loan Documents to repay any Swing
Line Loans
under the Revolving Credit Loan Commitments or the Revolving
Credit Loans, as
the case may be, shall be unconditional and irrevocable. Such
obligation shall
be paid strictly in accordance with the terms of this Agreement
and each such
other Loan Document under all circumstances, including the
following: (a) any
lack of validity or enforceability of this Agreement or any of
the other Loan
Documents; (b) any change in the time, manner or place of
payment of, or in any
other term of all or any of the Obligations of any other
Borrower, or other
amendment or waiver of or any consent to departure from all or
any of the
applicable/related Loan Documents; (c) the existence of any
other claim that the
Company may then have against the Agent or any other Lender in
connection with
this Agreement or the transactions contemplated hereby or by the
related Loan
Documents, other than the defense of payment; (d) any other
circumstance that
might otherwise constitute a defense available to, or discharge
of, any other
Borrower other than the defense of payment. Nothing contained in
this Section
3.5 shall constitute a waiver by the Company of any claims
arising out of the
gross negligence, bad faith or willful misconduct of the Agent
or the Swing Line
Bank.
ARTICLE IV.
SWING LINE LOANS
Section 4.1 Swing Line Commitments and Payments.
(a) The Swing Line Bank shall, on the terms and subject to
the
conditions set forth in Section 2.7(c) and Section 4.3, make one
or more
advances (each such advance being a "Swing Line Loan") to any
Floor Plan
Borrower under the Floor Plan Swing Line Commitments and to the
Company under
the Revolver Swing Line Commitment from time to time on any
Business Day during
the term hereof, in amounts not to exceed at any time (i) the
aggregate amount
of the Floor Plan Swing Line Commitment with respect to Floor
Plan Swing Line
Loans, (ii) the Floor Plan Advance Limit with respect to Motor
Vehicles financed
under Floor Plan Swing Line Loans, or (iii) the aggregate amount
of the Revolver
Swing Line Commitment with respect to Revolving Credit Swing
Line Loans.
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(b) All Revolving Credit Swing Line Loans shall be due and
payable
ten (10) days after same are made. All Floor Plan Swing Line
Loans shall be due
and payable pursuant to the provisions of Section 2.4 and
Section 4.5.
Section 4.2 Accrual of Interest; Margin Adjustments. Each Swing
Line Loan
shall bear interest at the rate set forth in Section 5.2. The
amount and date of
each such Swing Line Loan, the Alternate Base Rate, the Floor
Plan New Swing
Rate, the Floor Plan Used Swing Rate, and the amount and date of
any repayment
shall be noted on the Swing Line Bank's records, which records
will be
conclusive evidence thereof, absent manifest error; provided,
any failure by the
Swing Line Bank to record any such information shall not affect
the obligations
of the applicable Floor Plan Borrower with respect thereto in
accordance with
the terms of this Agreement and the Loan Documents, and, further
provided, upon
the occurrence and during the continuance of an Event of
Default, each Swing
Line Loan shall bear interest at the rate otherwise applicable
thereto, plus
three percent (3%).
Section 4.3 Requests for Swing Line Loans.
(a) On any day that a Floor Plan Swing Line Loan is requested
pursuant
to Section 2.3 or a Revolving Credit Swing Line Loan is
requested pursuant to
Section 3.3(a), the applicable Floor Plan Borrower with respect
to Floor Plan
Swing Line Loans or the Company with respect to Revolving Credit
Swing Line
Loans shall be deemed to have delivered to the Swing Line Bank a
Request for
Borrowing in connection therewith, subject to the following and
to the remaining
provisions of this Section 4.3:
(i) in the case of Floor Plan Loan Commitments, the
aggregate
principal amount of such requested Swing Line Loan Borrowing
under the
Floor Plan Loan Commitments, plus the aggregate principal amount
of
all other Swing Line Loans then outstanding under the Floor Plan
Loan
Commitments shall not exceed the Floor Plan Swing Line
Commitment, and
any Borrowing under the Floor Plan Loan Commitments shall not
exceed
the Floor Plan Advance Limit;
(ii) in the case of the Revolving Credit Loan Commitments,
the
aggregate principal amount of such requested Swing Line Loan
Borrowing
under the Revolving Credit Loan Commitments, plus the
aggregate
principal amount of all other Swing Line Loans then outstanding
under
the Revolving Credit Loan Commitments shall not exceed the
Revolver
Swing Line Commitment;
(iii) such request for Borrowing shall be irrevocable and if
it
is a request for a Borrowing under the Revolving Credit
Commitment,
shall constitute a certification by the Company of the
provisions of
Section 8.3; and
(iv) such request may be in writing (including via facsimile)
or
by telephone (if promptly confirmed in writing) or, if for Floor
Plan
Swing Line Loans, pursuant to the provisions of Section 2.3.
Each of
the Company and the Floor Plan Borrowers hereby authorizes the
Swing
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Line Bank to disburse Swing Line Loans pursuant to the
telephone
instructions of any Person purporting to be a Person identified
by
name on a written list of Persons authorized by the Company or
each
such Floor Plan Borrower to make requests for Swing Line Loans
on
behalf of the Company or such Floor Plan Borrowers.
Notwithstanding
the foregoing, each of the Company and the Floor Plan
Borrowers
acknowledges and agrees that each Borrower shall bear all risk
of loss
resulting from disbursements made upon any telephone
request.
Section 4.4 Disbursement of Swing Line Loans.
(a) In the case of Revolving Credit Swing Line Loans, subject
to
receipt of a Request for Borrowing of a Swing Line Loan and to
the other terms
and conditions of this Agreement, the Swing Line Bank shall make
available to
the Company the amount so requested, in same day funds, not
later than 1:00 p.m.
New York, New York time on the Borrowing Date for such Swing
Line Loan, by
credit to an account of the Company maintained with the Swing
Line Bank or to
such other account or third party as the Company may direct.
(b) Floor Plan Swing Line Loans shall be disbursed in accordance
with
the provisions of Section 2.3.
Section 4.5 Refunding of and Participation Interest in Swing
Line Loans.
(a) Upon the occurrence and during the continuance of an Event
of
Default other than those described in paragraph (c) below, the
Swing Line Bank,
in its sole and absolute discretion, may, on behalf of any Floor
Plan Borrower
(each of whom hereby irrevocably directs the Swing Line Bank to
act on its
behalf), make a written (including via facsimile) request to the
Agent,
requesting the Floor Plan Lenders to make Floor Plan Loans in an
amount equal to
the outstanding principal amount of the Floor Plan Swing Line
Loans in
accordance with each Floor Plan Lender's respective Pro Rata
Share of Floor Plan
Loan Commitments (including the portion thereof which
constitutes the Swing Line
Minimum Amount). Any such Swing Line Loans shall be made by the
Lenders pursuant
to the provisions of Section 2.4; provided, that no such request
shall require
any Floor Plan Lender to make Floor Plan Loans in excess of such
Floor Plan
Lender's Floor Plan Loan Commitment on the date such request is
made. Unless an
Event of Default described in Section 11.3(d), Section 11.3(e),
Section 11.3(f),
or Section 11.3(g), shall have occurred (in which event the
procedures of
Section 4.5(c) shall apply) and regardless of whether the
conditions precedent
set forth in this Agreement to the making of a Floor Plan Loan
are then
satisfied or were satisfied at the time the Swing line Bank
advanced such Floor
Plan Swing Line Loans, each Floor Plan Lender shall upon request
by the Agent in
the manner specified in Section 2.4 make the proceeds of its
Floor Plan Loan
available to the Floor Plan Agent for the benefit of the Swing
Line Bank.
(b) At any time that a Revolving Credit Swing Line Loan is
outstanding
for more than ten (10) days and, in any event, upon the
occurrence and during
the continuance of an Event of Default, the Swing Line Bank in
its sole and
absolute discretion, may, on behalf of the Company (who hereby
irrevocably
directs the Swing Line Bank to act on its behalf), make a
written (including via
facsimile) request to the Agent, requesting the Revolving Credit
Loan Lenders
(including the Swing Line Bank in its capacity as a Revolving
Credit Loan
Lender) to make Revolving Credit Loans in an amount equal to the
outstanding
principal amount of the Swing Line Loans outstanding under the
Revolving Credit
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Loan Commitments in accordance with each Revolving Credit Loan
Lender's
respective Pro Rata Share of Revolving Credit Loan Commitments.
Such loans shall
accrue interest at the Alternate Base Rate, provided, no such
request shall
require any Revolving Credit Loan Lender to make Revolving
Credit Loans in
excess of such Revolving Credit Loan Lender's Pro Rata Share of
the Total
Revolving Credit Commitment on the date such request is made.
Unless an Event of
Default described in Section 11.1(f) or Section 11.1(g) shall
have occurred (in
which event the procedures of Section 4.5(c) shall apply) and
only if the
conditions precedent set forth in this Agreement to the making
of such Revolving
Credit Swing Line Loan were satisfied at the time the Swing Line
Lender advanced
such Loan, but regardless of whether the conditions precedent
set forth in this
Agreement to the making of a Revolving Credit Loan are then
satisfied, each
Revolving Credit Loan Lender shall immediately upon request by
the Agent in the
manner specified in Section 3.3 make the proceeds of its
Revolving Credit Loan
available to the Agent for the benefit of the Swing Line
Bank.
(c) If, prior to making of a Floor Plan Loan pursuant to
Section
4.5(a) or a Revolving Credit Loan pursuant to Section 4.5(b), an
Event of
Default described in Section 11.1(f) or Section 11.1(g) or
Section 11.3(d),
Section 11.3(e), Section 11.3(f), or Section 11.3(g), shall have
occurred and be
continuing, each Lender shall, in the manner provided for
herein, on the date
such Loan was to have been made, purchase from the Swing Line
Bank participation
interests in the Swing Line Loans under the Floor Plan Loan
Commitments and
under the Revolving Credit Loan Commitments equal to such
Lender's Pro Rata
Share of such Commitments.
(d) Subject to Section 4.5(c) above, each Lender's obligation to
make
Loans pursuant to this Section and to purchase participation
interests shall be
absolute and unconditional and shall not be affected by any
circumstance,
including, without limitation, (i) any setoff counterclaim,
recoupment, defense
or other right which such Lender may have against the Swing Line
Bank, any
Borrower or any other Person for any reason whatsoever; (ii) the
occurrence or
continuance of any Default or Event of Default; (iii) any
adverse change in the
condition (financial or otherwise) of any Borrower or any other
Person; (iv) any
breach of this Agreement by any Borrower or any other Person;
(v) any inability
of any Borrower to satisfy the conditions precedent to a
Borrowing set forth in
this Agreement on the date upon which such Loan is required to
be made or such
participating interest is to be purchased; or (vi) any other
circumstance,
happening or event whatsoever, whether or not similar to any of
the foregoing.
If any Lender does not make available to the applicable Agent
the amount
required pursuant to Section 4.5(a) or Section 4.5(b), as the
case may be, the
Swing Line Bank shall be entitled to recover such amount on
demand from such
Lender, together with interest thereon for each day from the
date of non-payment
until such amount is paid in full at the Federal Funds Effective
Rate.
(e) Loans made to refund Floor Plan Swing Line Loans as provided
in
Section 4.5(a) shall be Floor Plan Loans and shall bear interest
at the
Alternate Base Rate plus three percent (3%) per annum (in
accordance with
Section 5.3) until any such Event of Default is cured or waived,
and then at the
Alternate Base Rate until the fifth (5th) Business Day of the
first month
following the cure or waiver of the applicable Event of Default.
On the next
succeeding Floor Plan Adjustment Date such Loans shall be
treated as all other
Floor Plan Loans outstanding in accordance with the provisions
of Section
2.4(a).
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ARTICLE V.
ALL LOANS
Section 5.1 Notes: Repayment of Loans.
(a) All Loans made hereunder shall be evidenced by the Notes
payable
as therein provided, which Notes shall be dated the Closing
Date, and shall be
in an aggregate principal amount equal to the Total Commitments
on such date.
The outstanding principal balance of such Loans and all interest
thereon and all
the Obligations, as evidenced by the Notes, shall be due and
payable in
accordance with the terms and provisions of this Agreement, and
on the Maturity
Date. Each Note shall bear interest from its date on the
outstanding principal
balance thereof as provided in Section 5.2.
(b) Each Lender or the Agent, on its behalf, is hereby
authorized by
each Borrower to, endorse on a schedule attached to the Notes
delivered to it
(or a computer generated supplement thereto, which supplement
shall be deemed to
be a part thereof), or otherwise record in such Lender's or
Agent's, as the case
may be, internal records, an appropriate notation evidencing the
date and amount
of each Loan, as well as the date and amount of each payment and
prepayment with
respect thereto; provided, that the failure of any Lender or the
Agent to make
such a notation or any error in such a notation shall not affect
the Obligations
of any Borrower hereunder or under the Notes.
Section 5.2 Interest on Loans.
(a) Subject to the provisions of Section 5.3, each Alternate
Base Rate
Loan which is a Revolving Credit Loan (excluding in each case
Swing Line Loans)
shall bear interest at a rate per annum, equal to the Alternate
Base Rate plus
the Applicable Margin for Alternate Base Rate Loans (if the
Alternate Base Rate
is based on the Prime Rate, computed on the basis of the actual
number of days
elapsed over a year of 365 or 366 days, as the case may be; or
if the Alternate
Base Rate is based on the Federal Funds Effective Rate, computed
on the basis of
the actual number of days elapsed over a year of 360 days).
(b) Subject to the provisions of Section 5.3, (i) each
Eurodollar Loan
which is a Revolving Credit Loan (excluding Swing Line Loans)
shall bear
interest at a rate per annum (computed on the basis of the
actual number of days
elapsed over a year of 360 days) equal to the LIBO Rate for the
Interest Period
in effect for such Loan plus the Applicable Margin for
Eurodollar Revolving
Credit Loans, and each change in the Applicable Margin shall
apply to all
Eurodollar Loans that are outstanding during the period
commencing on the
effective date of such change and ending on the date immediately
preceding the
effective date of the next such change, even if the effective
date occurs in the
middle of an Interest Period; and (ii) each Eurodollar Loan
which is a Floor
Plan Loan (excluding Swing Line Loans) shall bear interest at a
rate per annum
(computed on the basis of the actual number of days elapsed over
a year of 360
days) equal to the LIBO Rate for the Interest Period in effect
for such Loan
plus: (A) 1.25% if such Loan is to finance New Motor Vehicles or
Demonstrators
and (B) 1.375% if such Loan is to finance Used Motor Vehicles or
Rental Motor
Vehicles.
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(c) Floor Plan Swing Line Loans shall bear interest at a rate
per
annum (computed on the basis of the actual number of days
elapsed over a year of
360 days) equal to the Floor Plan New Swing Rate for Swing Line
Loans to finance
New Motor Vehicles or Demonstrators or the Floor Plan Used Swing
Rate for Swing
Line Loans to finance Used Motor Vehicles or Rental Motor
Vehicles.
(d) Revolving Credit Swing Line Loans shall bear interest at a
rate
per annum equal to the Alternate Base Rate (if the Alternate
Base Rate is based
on the Prime Rate, computed on the basis of the actual number of
days elapsed
over a year of 365 or 366 days, as the case may be; or if the
Alternate Base
Rate is based on the Federal Funds Effective Rate, computed on
the basis of the
actual number of days elapsed over a year of 360 days).
(e) Any Overage Amount shall bear interest at the Alternate Base
Rate
plus three percent (3.0%) per annum.
(f) Interest on each Revolving Credit Loan, each Swing Line Loan
and
each Floor Plan Loan shall be payable in arrears on each
Interest Payment Date
applicable to such Loan except as otherwise provided in this
Agreement. Interest
on any Overage Amount shall be payable upon demand. The
applicable LIBO Rate,
and the Alternate Base Rate shall be determined by the Agent,
and the Floor Plan
New Swing Rate and the Floor Plan Used Swing Rate shall be
determined by the
Swing Line Bank and such determinations shall be conclusive
absent manifest
error. The Agent or Floor Plan Agent, as applicable shall
promptly advise the
Borrowers and each Lender of each such determination.
Section 5.3 Interest on Overdue Amounts. Upon the occurrence
and
continuance of an Event of Default, the Company or the
defaulting Borrower shall
on demand pay interest, to the extent permitted by applicable
law, on all Loans
outstanding up to (but not including) the date of actual payment
at a rate per
annum (computed on the basis of the actual number of days
elapsed over a year of
360 days) equal to the interest rate otherwise applicable
thereto, plus three
percent (3%) per annum (after as well as before judgment) and,
if such Loan is a
Eurodollar Loan, such Loan shall be converted to an Alternate
Base Rate Loan at
the end of the applicable Interest Period. Any such loan that is
so converted
shall bear interest upon conversion at the Alternate Base Rate
plus the
Applicable Margin plus three percent (3%) per annum.
Section 5.4 Fees.
(a) The Company shall pay to the Agent, on the last day of each
March,
June, September and December and on the Maturity Date, in
immediately available
funds, (i) for the pro rata benefit of the Floor Plan Lenders, a
Floor Plan Loan
Commitment fee (the "Floor Plan Loan Commitment Fee") equal
to
twenty-five-one-hundredths of one percent (0.25%) per annum
times the average
unused amount of the Floor Plan Loan Commitments during the
immediately
preceding fiscal quarter (or shorter portion thereof) just ended
(excluding any
unused portion of the Revolving Credit Loan Commitments that has
been
reallocated or converted to the Floor Plan Loan Commitment in
accordance with
the terms hereof); (ii) for the pro rata benefit of the
Revolving Credit Loan
Lenders, a Revolving Credit Loan Commitment fee (the "Revolving
Credit Loan
Commitment Fee") equal to three-hundred
seventy-five-one-thousandths of one
percent (0.375%) per annum times the average unused amount of
the Revolving
Credit Loan Commitments (including any portion of Revolving
Credit Loan
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<PAGE>
Commitments that has been reallocated or converted to the Floor
Plan Loan
Commitment in accordance with the terms hereof and remains
unused thereunder)
during the immediately preceding fiscal quarter (or shorter
period thereof) just
ended. All Commitment Fees under this Section 5.4(a) shall be
computed on the
basis of the actual number of days elapsed in a year of 365 or
366 days, as the
case may be. The Commitment of a Lender shall be deemed "unused"
to the extent
and in the amount such Lender is obligated to fund future Loans
or Letter of
Credit Obligations of any Borrower regardless of whether or not
any amounts are
outstanding under any Swing Line Loan. The Floor Plan Loan
Commitment Fees and
the Revolving Credit Loan Commitment Fees due to each Lender
shall commence to
accrue on the Closing Date and cease to accrue on the earlier of
the Maturity
Date and the termination of the Commitments of such Lender
pursuant to Section
5.5 or Section 13.3(b).
(b) The Company shall pay the Agent, J.P. Morgan Securities
Inc., Bank
of America, N.A. and Banc of America Securities LLC, the fees
(the "Agency
Fees") in such amount and on such dates as may be agreed among
the Company, the
Agent, J.P. Morgan Securities Inc., Bank of America, N.A. and
Banc of America
Securities LLC, for their account and for the account of the
Lenders, as
applicable, as set forth in that certain letter agreement dated
October 28, 2004
among said parties (the "Agent's Letter").
(c) The Company shall pay the Agent and the Floor Plan Agent
the
agency and floor plan agency fees ("Administrative Fees") in
such amount and on
such dates as may be agreed among the Company, the Agent, and
the Floor Plan
Agent pursuant to that certain letter agreement between said
parties dated March
___, 2004 among said parties (the "Administrative Fee
Letter").
(d) The Company shall pay to the Agent for the benefit of the
Lenders
on the Closing Date the fees payable to the Lenders as provided
in the Agent's
Letter.
Section 5.5 Termination, Reduction or Conversion of
Commitments.
(a) Upon at least three (3) Business Days' prior written notice
to the
Agent, the Company may at any time, in whole, permanently
terminate or
permanently reduce the Total Commitments, among the Lenders in
accordance with
(i) their respective Pro Rata Share of Floor Plan Loan
Commitments, and (ii)
their respective Pro Rata Share of Revolving Credit Loan
Commitments; provided
(x) any such partial reduction of the Total Commitments shall be
in minimum
aggregate increments of Five Million Dollars ($5,000,000); (y)
no reduction
shall reduce the amount of the Revolving Credit Loan Commitments
to an amount
which is less than the Letter of Credit Obligations outstanding
at such time,
plus any Reserve Commitment required pursuant to Section 3.4;
and (z) following
any such reduction, the Revolving Credit Loan Commitment shall
not exceed twenty
percent (20%) of the Total Commitment. In connection with any
such reduction,
the Floor Plan Agent in its discretion may suspend and/or
terminate all or a
portion of the then outstanding Drafting Agreements selected by
the Company, in
an amount that corresponds to the size of said reduction.
(b) Subject to Section 5.5(a) above and the provisions contained
in
this paragraph (b), at any time there exists any unused portion
of the Revolving
Credit Loan Commitments, the Company may request in writing the
Agent to convert
all or a part of such unused portion of the Revolving Credit
Loan Commitments
into Floor Plan Loan Commitments, provided, following such
conversion, the total
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<PAGE>
of the Revolving Credit Loan Commitments shall never be less
than an amount
equal to (i) the sum of all Revolving Credit Loans then
outstanding, plus (ii)
all Letter of Credit Obligations then outstanding, plus (iii)
any Reserve
Commitment; and in such event and following five (5) days prior
written notice
from the Company to the Agent, the Floor Plan Loan Commitments
shall, upon such
request, be increased by the amount so requested by the Company,
such amount
together with the Revolving Credit Loan Commitments not to
exceed the Total
Commitment, and, further provided, that the Revolving Credit
Loan Commitment of
any Revolving Credit Loan Lender that is not also a Floor Plan
Lender may not be
so converted. At any time there exists any unused amount of a
converted portion
of the Floor Plan Loan Commitments, the Company may request the
Agent to reverse
any such portion thereof, in whole or in part, and in such event
the Floor Plan
Loan Commitments and the Revolving Credit Loan Commitments shall
be restored, as
applicable, in the respective amounts so requested by the
Company.
(c) Upon any such conversion of Revolving Credit Loan
Commitments into
Floor Plan Loan Commitments or vice versa, the Floor Plan Loan
Commitments shall
be increased or decreased, as the case may be, pro rata among
the Floor Plan
Lenders, and the Revolving Credit Loan Commitments shall be
increased or
decreased, as the case may be, in an aggregate amount of the
corresponding
increase or decrease in the Floor Plan Loan Commitments, which
increase or
decrease in the Revolving Credit Loan Commitments shall be
allocated among the
Revolving Credit Loan Lenders (other than any Revolving Credit
Loan Lender that
is not also a Floor Plan Lender) based on their Pro Rata Share
of Revolving
Credit Loan Commitments.
(d) At the time the Commitments of any Lender are terminated
or
reduced pursuant to Section 5.5(a), the Company shall pay to the
Agent for the
account of each such Lender, the Floor Plan Loan Commitment Fees
and the
Revolving Credit Loan Commitment Fees on the amount of such
terminated or
reduced Commitments owed to the date of such termination or
reduction.
(e) Each of the Commitments shall automatically and
permanently
terminate on the Maturity Date.
Section 5.6 Alternate Rate of Interest. If on the day two (2)
Business Days
prior to the commencement of any Interest Period for a
Eurodollar Borrowing, the
Agent shall have determined that: (a) Dollar deposits in the
amount set forth in
the request for Borrowing are not generally available in the
London interbank
market or that the rate at which Dollar deposits are being
offered will not
adequately and fairly reflect the cost to any Lender or the
Swing Line Bank of
making or maintaining the principal amount of its Eurodollar
Loan comprising
such Borrowing during such Interest Period, or (b) reasonable
means do not exist
for ascertaining the LIBO Rate, then the Agent shall as soon as
practicable
thereafter give written notice of such determination to the
Company, the Lenders
and/or the Swing Line Bank; and any request by a Borrower for
the making of a
Eurodollar Borrowing shall, until the circumstances giving rise
to such notice
no longer exist, be deemed to be a request for a Borrowing to be
comprised of
Alternate Base Rate Loans. Each determination of the Agent
hereunder shall be
conclusive, absent manifest error.
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<PAGE>
Section 5.7 Prepayment of Loans; Mandatory Reduction of
Indebtedness.
(a) Each Revolving Credit Loan Borrowing, each Floor Plan
Loan
Borrowing and each Swing Line Loan may be prepaid at any time
and from time to
time prior to its respective date due in accordance herewith, in
whole or in
part, subject to the requirements of Section 5.10, but otherwise
without premium
or penalty, upon at least three (3) Business Days' prior written
or facsimile
notice to the Agent.
(b) On the date of any termination or reduction of the Total
Commitments pursuant to Section 5.5(a), each of the Borrowers
shall prepay the
Loans in an amount equal to the amount by which the Commitments
are being so
terminated or reduced, as shall be necessary in order that the
aggregate
principal amount of the Loans and Letter of Credit Obligations
outstanding will
not exceed the Total Commitments following such termination or
reduction. All
prepayments under this paragraph shall be subject to Section
5.10.
(c) Each notice of prepayment shall be irrevocable and shall
specify
the prepayment date and the principal amount of each Loan (or
portion thereof)
and the Type of Loan to be prepaid. All prepayments shall be
accompanied by
accrued interest on the principal amount being prepaid to the
date of
prepayment.
(d) Subject to the provisions of Section 2.3(d)(ii), if at any
time
and for any reason:
(i) the aggregate principal amount of all (y) Floor Plan
Loans
outstanding, plus (z) Floor Plan Swing Line Loans shall exceed
the
Total Floor Plan Loan Commitments at such time, or
(ii) the aggregate principal amount of all (x) Revolving
Credit
Loans, plus (y) Swing Line Loans outstanding under the
Revolving
Credit Loan Commitments, plus (z) Letter of Credit Obligations
shall
exceed the amount of the Revolving Credit Loan Advance Limit,
or
(iii) the aggregate principal amount of all (w) Floor Plan
Loans
outstanding, plus (x) Swing Line Loans outstanding, plus (y)
Revolving
Credit Loans outstanding, plus (z) Letter of Credit
Obligations
outstanding shall exceed the Total Commitments,
the Borrowers shall immediately, upon demand, pay to the Agent
an amount of such
Obligations equal to such excess, provided, Borrowers shall have
the right to
direct such repayment first to prepay such portion of the
Indebtedness not
subject to the provisions of Section 5.10.
Section 5.8 Reserve Requirements; Change in Circumstances.
(a) It is understood that the cost to each Lender of making
or
maintaining any of the Eurodollar Loans may fluctuate as a
result of the
applicability of reserve requirements imposed by the Board at
the ratios
provided for in Regulation D on the date hereof. The Borrowers
agree to pay to
such Lender from time to time such amounts as shall be necessary
to compensate
such Lender for the portion of the cost of making or maintaining
Eurodollar
Loans resulting from any increase in such reserve requirements
provided for in
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Regulation D (or any successor regulation or ruling issued in
respect thereof)
from those as in effect on the date hereof, it being understood
that the rates
of interest applicable to Eurodollar Loans have been determined
on the
assumption that no such reserve requirements exist or will exist
and that such
rates do not reflect costs imposed on the Lenders in connection
with such
reserve requirements.
(b) Notwithstanding any other provision herein, if after the
date of
this Agreement any change in applicable law or regulation or in
the
interpretation or administration thereof by any Governmental
Authority charged
with the interpretation or administration thereof (whether or
not having the
force of law) shall change the basis of taxation of payments to
any Lender of
the principal of or interest on any Eurodollar Loan made by such
Lender or any
other fees or amounts payable hereunder (other than taxes
imposed on the overall
net income or profits of such Lender by the jurisdiction in
which such Lender or
its applicable lending office has its principal office or is
located or by any
political subdivision or taxing authority therein), or shall
impose, modify or
deem applicable any reserve, special deposit or similar
requirement against
assets of, deposits with or for the account of, or credit
extended by, such
Lender or shall impose on such Lender or the London interbank
market any other
condition affecting this Agreement or Eurodollar Loans made by
such Lender and
the result of any of the foregoing shall be to increase the cost
to such Lender
of making or maintaining any Eurodollar Loan or to reduce the
amount of any sum
received or receivable by such Lender hereunder (whether of
principal, interest
or otherwise) in respect thereof, by an amount deemed by such
Lender in its sole
discretion to be material, then the Borrowers shall pay as
required in Section
5.8(d) such additional amount or amounts as will compensate such
Lender for such
additional costs or an amount equal to such reduction will be
paid to such
Lender with respect to the Eurodollar Loans, as the case may
be.
(c) If any Lender shall have determined that the applicability
of any
law, rule, regulation or guideline regarding capital adequacy,
or any change in
any of the foregoing or in the interpretation or administration
of any of the
foregoing by any governmental authority, central bank or
comparable agency
charged with the interpretation or administration thereof, or
compliance by any
Lender (or any Applicable Lending Office of such Lender) with
any request or
directive regarding capital adequacy (whether or not having the
force of law) of
any such authority, central bank or comparable agency, has or
would have the
effect of reducing the rate of return on such Lender's capital,
if any, as a
consequence of this Agreement or the Loans made by such Lender
pursuant hereto
to a level below that which such Lender could have achieved but
for such
adoption, change or compliance (taking into consideration such
Lender's policies
with respect to capital adequacy) by an amount deemed by such
Lender to be
material, then the Borrowers shall pay as required to Section
5.8(d) to such
Lender such additional amount or amounts as will compensate such
Lender for any
such reduction.
(d) A certificate of each Lender setting forth in reasonable
detail
calculations (together with the basis and assumptions therefor)
to establish
such amount or amounts as shall be necessary to compensate
without duplication
such Lender (or participating banks or other entities pursuant
to Section 13.3
subject to the limitations set forth therein) under Section
5.8(a), Section
5.8(b) or Section 5.8(c) shall be delivered to the Agent which
shall promptly
deliver the same to the Company and such certificate shall be
rebuttably
presumptive evidence of the amount or amounts which such Lender
is entitled to
receive. The Borrowers shall pay such Lender the amount shown as
due on any such
certificate within ten (10) days after its receipt of the
same.
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(e) Any demand for compensation pursuant to this Section 5.8
must be
made no later than ninety (90) days after the later of (i) the
date on which the
Lender first incurs the expense, cost or economic loss referred
to and (ii) the
date on which the Lender first has knowledge that it is liable
for such expense,
cost or economic loss, or such Lender shall be deemed to have
waived the right
to such compensation. The protection of this Section 5.8 shall
be available to
each Lender regardless of any possible contention of the
invalidity or
inapplicability of any law, regulation or other condition which
shall give rise
to any demand by such Lender for compensation; provided, if any
such contention
is undertaken by any Lender, in its sole discretion, and same
results in any
refund to such Lender of any amounts paid by any Borrower under
this Section
5.8, Lender shall promptly refund such payment to the Company,
without interest.
Section 5.9 Change in Legality.
(a) Notwithstanding anything to the contrary herein contained,
if any
change in any law or regulation or in the interpretation thereof
by any
Governmental Authority charged with the administration or
interpretation thereof
shall make it unlawful for any Lender to make or maintain any
Eurodollar Loan,
then, by written notice to the Agent, such Lender may:
(i) declare that Eurodollar Loans will not thereafter be made
by
such Lender hereunder, whereupon any request by any Borrower for
a
Eurodollar Borrowing shall, as to such Lender only, be deemed
a
request for an Alternate Base Rate Loan, as applicable unless
such
declaration shall be subsequently withdrawn; and
(ii) require that all outstanding Eurodollar Loans made by it
be
converted to Alternate Base Rate Loans, in which event all
such
Eurodollar Loans shall be automatically converted to Alternate
Base
Rate Loans, as of the effective date of such notice as provided
in
Section 5.9(b).
In the event any Lender shall exercise its rights under (i) or
(ii) above, all
payments and prepayments of principal which would otherwise have
been applied to
repay the Eurodollar Loans made by such Lender or the converted
Eurodollar Loans
of such Lender shall instead be applied to repay the Alternate
Base Rate Loans,
made by such Lender in lieu of, or resulting from the conversion
of, such
Eurodollar Loans.
(b) For purposes of Section 5.9(a), a notice to the Agent by
any
Lender shall be effective as to each Eurodollar Loan on the last
day of each
applicable Interest Period.
Section 5.10 Breakage Costs and Related Matters.
(a) The Borrowers shall indemnify each Lender against any loss
or
expense which such Lender may sustain or incur as a consequence
of (i) any
failure by any Borrower to fulfill on the date of any Borrowing
hereunder the
applicable conditions set forth in Article VIII, (ii) any
failure by any
Borrower to borrow, convert or continue hereunder after delivery
of a Request
for Borrowing or a request for Borrowing pursuant to Section
2.3(a) or a notice
of conversion or continuation has been given pursuant to Section
2.4, Section
3.3 or Section 5.15, (iii) any payment, prepayment or conversion
of a Eurodollar
Loan required by any other provision of this Agreement or
otherwise made on a
date other than the last day of the applicable Interest Period,
(iv) any default
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in payment or prepayment of the principal amount of any Loan or
any part thereof
or interest accrued thereon, as and when due and payable (at the
due date
thereof, by irrevocable notice of prepayment or otherwise), or
(v) the
occurrence of any Event of Default, including, but not limited
to, any loss or
reasonable expense sustained or incurred or to be sustained or
incurred in
liquidating or employing deposits from third parties acquired to
effect or
maintain such Loan or any part thereof as a Eurodollar Loan.
Such loss or
reasonable expense shall include an amount equal to the excess,
if any, as
reasonably determined by each Lender of (A) its cost of
obtaining the funds for
the Loan being paid, prepaid or converted or not borrowed (based
on the LIBO
Rate applicable thereto) for the period from the date of such
payment,
prepayment or conversion or failure to borrow to the last day of
the Interest
Period for such Loan (or, in the case of a failure to borrow,
the Interest
Period for such Loan which would have commenced on the date of
such failure to
borrow) over (B) the amount of interest that could be realized
by such Lender in
reemploying during such period the funds so paid, prepaid or
converted or not
borrowed. A certificate of each Lender setting forth in
reasonable detail
calculations (together with the basis and assumptions therefore)
to establish
any amount or amounts which such Lender is entitled to receive
pursuant to this
Section 5.10 shall be delivered to the Agent which shall
promptly deliver the
same to the Company and such certificate shall be rebuttably
presumptive
evidence of the amount or amounts which such Lender is entitled
to receive.
(b) The provisions of this Section 5.10 shall remain operative
and in
full force and effect regardless of the expiration of the term
of this
Agreement, the consummation of the transactions contemplated
hereby, the
repayment of any of the Loans, the invalidity or
unenforceability of any term or
provision of this Agreement or any Note; provided, demand for
compensation
pursuant to Section 5.8 must be made on or before ninety (90)
days after the
later of (i) the first date on which the Lender incurs the
expense, cost or
economic loss referred to and (ii) the first date on which the
Lender first has
knowledge that it is liable for such expense, cost or economic
loss, or such
Lender shall be deemed to have waived the right to such
compensation. All
amounts due under this Section 5.10 shall be payable within ten
(10) days after
receipt of demand therefor.
Section 5.11 Pro Rata Treatment. Except as otherwise provided
herein, each
Borrowing, each payment or prepayment of principal of the Notes,
each payment of
interest on such Notes, each other reduction of the principal or
interest
outstanding under such Notes, however achieved, each payment of
the Commitment
Fees and each reduction of the Commitments shall be made, as
applicable, in
accordance with each Lender's respective (i) Pro Rata Share of
Floor Plan Loan
Commitments and (ii) Pro Rata Share of Revolving Credit Loan
Commitments.
Section 5.12 Place of Payments.
(a) The Floor Plan Borrowers shall make all payments of
principal and
interest on any Floor Plan Swing Line Loan and any Floor Plan
Loan , including
payments pursuant to Section 2.5 or of the proceeds of the sale
of any Motor
Vehicle, on the date when due in Dollars to the Floor Plan Agent
at the office
specified by the Floor Plan Agent. The Company shall make all
payments of
principal and interest on any Revolving Credit Swing Line Loan
and any Revolving
Credit Loan on the date when due in Dollars to the Agent at
JPMorgan Chase Bank,
712 Main Street, Lobby, Houston, Texas 77002, or by wire
transfer to JPMorgan
Chase Bank, ABA#021000021, for credit to account #304-259-322,
reference: Asbury
Automotive, Attn: Agency Services Angelica Castillo. Except as
otherwise
provided in this Agreement, the Company and/or any of the Floor
Plan Borrowers
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shall make all payments (including principal of or interest on
any Borrowing,
the Agency Fee, or any other fees or other amounts) payable
hereunder and under
any other Loan Document not later than 1:00 p.m., New York time
in immediately
available funds, without setoff or counterclaim.
(b) Whenever any payment (including principal of or interest on
any
Borrowing or any fees or other amounts) hereunder or under any
other Loan
Document shall become due, or otherwise would occur, on a day
that is not a
Business Day, such payment shall be made on the next succeeding
Business Day,
and such extension of time shall in such case be included in the
computation of
interest and fees, if applicable; provided, all payments must be
made on or
before the Maturity Date.
(c) Unless the Agent shall have received notice from a Lender
prior
to the date of a Borrowing that such Lender will not make
available to the Agent
its portion of such Borrowing, the Agent may assume that such
Lender has made
such portion available to the Agent on the date of such
Borrowing. The Agent
may, in reliance upon such assumption, make available to the
appropriate Person
on such date a corresponding amount. If, and to the extent that
a Lender shall
not have made its portion of a Borrowing available to the Agent,
such Lender and
the Borrowers severally, but without duplication, agree to pay
to the Agent
forthwith on demand such corresponding amount together with
interest thereon,
for each day from the date such amount is made available to the
Agent until the
date such amount is repaid to the Agent (i) in the case of the
Borrowers, at the
applicable rate in respect of the affected Loan and (ii) in the
case of such
Lender, at the Federal Funds Effective Rate. If such Lender
shall repay to the
Agent such corresponding amount, such amount shall constitute
such Lender's
portion of such Borrowing for purposes of this Agreement.
Section 5.13 Sharing of Setoffs. Each Lender agrees that if it
shall, in
any manner, including through the exercise of a right of
banker's lien, setoff
or counterclaim against any Borrower, or pursuant to a secured
claim under
Section 506 of Title 11 of the United States Code or other
security or interest
arising from, or in lieu of, such secured claim, received by
such Lender under
any Insolvency Proceeding or otherwise, obtain payment
(voluntary or
involuntary) in respect of the Note held by it as a result of
which the unpaid
principal portion of the Note held by it shall be
proportionately less than the
unpaid principal portion of the Note held by any other Lender,
it shall be
deemed to have simultaneously purchased from such other Lender a
participation
in the Note held by such other Lender, so that the aggregate
unpaid principal
amount of the Note and participations in Notes held by each
Lender shall be in
the same proportion to the aggregate unpaid principal amount of
all Notes then
outstanding as the principal amount of the Note held by it prior
to such
exercise of banker's lien, setoff or counterclaim was to the
principal amount of
all Notes outstanding prior to such exercise of banker's lien,
setoff or
counterclaim; provided, that if any such purchase or purchases
or adjustments
shall be made pursuant to this Section 5.13 and the payment
giving rise thereto
shall thereafter be recovered, such purchase or purchases or
adjustments shall
be rescinded to the extent of such recovery and the purchase
price or prices or
adjustment restored without interest.
Section 5.14 Payments Free of Taxes.
(a) Any and all payments by the Borrowers hereunder shall be
made free
and clear of and without deduction for any and all present or
future taxes,
levies, imposts, deductions, charges or withholdings, and all
liabilities with
respect thereto, excluding taxes imposed on the Agent's, the
Floor Plan Agent's,
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the Swing Line Bank's or any Lender's or any transferee's,
assignee's or
participation holder's (any such entity a "Transferee") net
income and franchise
taxes imposed on the Agent, the Floor Plan Agent, the Swing Line
Bank or any
Lender (or Transferee) by the United States or any jurisdiction
under the laws
of which it is organized or any political subdivision thereof
(all such
non-excluded taxes, levies, imposts, deductions, charges,
withholdings and
liabilities being hereinafter referred to as "Taxes"). If the
Borrowers shall be
required by law to deduct any Taxes from or in respect of any
sum payable
hereunder to the Lenders (or any Transferee), the Agent, the
Floor Plan Agent or
the Swing Line Bank then: (i) the sum payable shall be increased
by the amount
necessary so that after making all required deductions
(including deductions
applicable to additional sums payable under this Section 5.14)
such Lender (or
Transferee) or the Agent, the Floor Plan Agent or the Swing Line
Bank (as the
case may be) shall receive an amount equal to the sum it would
have received had
no such deductions been made, (ii) the Borrowers shall make such
deductions and
(iii) the Borrowers shall pay the full amount deducted to the
relevant taxing
authority or other Governmental Authority in accordance with
applicable law.
(b) In addition, the Borrowers agree to pay any present or
future
stamp or documentary taxes or any other excise or property
taxes, charges or
similar levies which arise from any payment made hereunder or
from the
execution, delivery or registration of, or otherwise with
respect to, this
Agreement or any other Loan Document which are not excluded
under Section 5.14
(hereinafter referred to as "Other Taxes").
(c) The Borrowers will indemnify each Lender (or Transferee),
the
Swing Line Bank, the Agent and the Floor Plan Agent for the full
amount of Taxes
and Other Taxes (including any Taxes or Other Taxes imposed by
any jurisdiction
on amounts payable under this Section 5.14) paid by such Lender
(or Transferee),
the Swing Line Bank, the Agent and the Floor Plan Agent, as the
case may be, and
any liability (including penalties, interest and expenses)
arising therefrom or
with respect thereto, whether or not such Taxes or Other Taxes
were correctly or
legally asserted by the relevant taxing authority or other
Governmental
Authority. Such indemnification shall be made within thirty (30)
days after the
date any such Person indemnified hereunder makes written demand
therefor, such
demand to contain a certificate setting forth the calculations
(including all
assumptions and the basis therefor) to establish the amount for
which indemnity
is claimed. If a Lender (or Transferee), the Agent, the Swing
Line Bank, or the
Floor Plan Agent shall become aware that it is entitled to
receive a refund in
respect of Taxes or Other Taxes, it shall promptly notify the
Company of the
availability of such refund and shall, within thirty (30) days
after receipt of
a request by the Borrowers, apply for such refund at the
Company's expense. If
any Lender (or Transferee), the Swing Line Bank, the Agent or
the Floor Plan
Agent receives a refund in respect of any Taxes or Other Taxes
for which such
Person has received payment from any of the Borrowers, it shall
promptly notify
the Company of such refund and shall, within thirty (30) days
after receipt of a
request by any of the Borrowers (or promptly upon receipt, if
any of the
Borrowers has requested application for such refund pursuant
hereto), repay such
refund to the Company, net of all out-of-pocket expenses of such
Person and
without interest; provided that the Borrowers, upon the request
of such Person,
agree to return such refund (plus penalties, interest or other
charges) to such
Person in the event such Person is required to repay such
refund.
(d) Within thirty (30) days after the date of any payment of
Taxes or
Other Taxes withheld by the Borrowers in respect of any payment
to any Lender
(or Transferee), the Swing Line Bank, the Agent or the Floor
Plan Agent, the
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Borrowers will furnish to such Person, at its address referred
to in Section
13.1, the original or a certified copy of a receipt evidencing
payment thereof
to the extent available.
(e) Without prejudice to the survival of any other agreement
contained
herein, the agreements and obligations contained in this Section
5.14 shall
survive the payment in full of the principal of and interest on
all Loans made
hereunder.
(f) The Agent, the Floor Plan Agent, each Lender, the Swing Line
Bank
and each Transferee each represents that it is either (i) a
corporation
organized under the laws of the United States of America or any
state thereof or
(ii) it is entitled to complete exemption from United States
withholding tax
imposed on or with respect to any payments, including fees, to
be made to it
pursuant to this Agreement (y) under an applicable provision of
a tax convention
to which the United States of America is a party or (z) because
it is acting
through a branch, agency or office in the United States of
America and any
payment to be received by it hereunder is effectively connected
with a trade or
business in the United States of America. Each Lender (or
Transferee) which is
organized outside the United States shall, on the date it
becomes a signatory
hereto, deliver to the Company and the Agent such certificates,
documents or
other evidence, as required by the Code or Treasury Regulations
issued pursuant
thereto, including Internal Revenue Service Form W-8 BEN or Form
W-8 ECI and any
other certificate or statement of exemption required by Treasury
Regulation
Section 1.1441-1(a) or Section 1.1441-6(c) or any subsequent
version thereof,
properly completed and duly executed by such Lender (or
Transferee) establishing
such payments to it are (i) not subject to withholding under the
Code because
such payment is effectively connected with the conduct by such
Lender (or
Transferee) of a trade or business in the United States or (ii)
exempt from
United States tax under a provision of an applicable tax treaty.
Unless the
Company and the Agent have received forms or other documents
satisfactory to
them indicating that payments hereunder or under the Notes are
not subject to
United States withholding tax or are subject to such tax at a
rate reduced by an
applicable tax treaty, the Borrowers, the Agent, the Swing Line
Bank and/or the
Floor Plan Agent shall withhold taxes from such payments at the
applicable
statutory rate in the case of payments to or for any Lender (or
Transferee) or
assignee organized under the laws of a jurisdiction outside the
United States.
The Borrowers hereby waive any cause of action against the
Agent, the Floor Plan
Agent, the Swingline Bank, any Transferee or any of the Lenders
resulting from a
breach of any obligation contained in this Section 5.14(f) or
the
representations contained in this Section 5.14(f) being
untrue.
(g) The Borrowers shall not be required to pay any additional
amounts
to any Lender (or Transferee) in respect of United States
withholding tax
pursuant to Section 5.14(a) or Section 5.14(c) if the obligation
to pay such
additional amounts would not have arisen but for the failure of
the
representation in Section 5.14(f) to be true or a failure by
such Lender (or
Transferee) to comply with the provisions of Section 5.14(f)
above unless such
failure results from (i) a change in applicable law, regulation
or official
interpretation thereof or (ii) an amendment, modification or
revocation of any
applicable tax treaty or a change in official position regarding
the application
or interpretation thereof, in each case after the Closing
Date.
(h) Any Lender (or Transferee) claiming any additional amounts
payable
pursuant to Section 5.8 or this Section 5.14 shall use
reasonable efforts
(consistent with legal and regulatory restrictions) to file any
certificate or
document requested by the Company or to change the jurisdiction
of its
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Applicable Lending Office if the making of such a filing or
change would avoid
the need for or reduce the amount of any such additional amounts
which may
thereafter accrue and would not, in the sole determination of
such Lender, be
otherwise disadvantageous to such Lender (or Transferee).
(i) If any Lender (or Transferee) requests compensation pursuant
to
this Section 5.14, or is unable to make a Eurodollar Loan, as
contemplated in
Section 5.7 when other Lenders are able to do so, the Company
may give notice to
such Lender (with a copy to the Agent) that they wish to seek
one or more
Eligible Assignees (which may be one or more of the Lenders) to
assume the
Commitments of such Lender and to purchase its outstanding Loans
and Note. Each
affected Lender (or Transferee) hereto agrees to sell all of its
Commitments,
its Loans and its Note pursuant to Section 13.3 to any such
Eligible Assignee
for an amount equal to the sum of the outstanding unpaid
principal of and
accrued interest on such Loans and Note plus all Commitment Fees
and other fees
and amounts due such Lender (or Transferee) hereunder
calculated, in each case,
to the date such Commitment, Loans and Note are purchased,
whereupon such Lender
(or Transferee) shall thereafter have no other Commitments or
other obligation
to the Company or the Floor Plan Borrowers hereunder or under
any Note.
Section 5.15 Applicable Interest Rate. The Company shall have
the right
with respect to Revolving Credit Loan Borrowings, at any time
upon prior
irrevocable notice to the Agent (x) not later than 10:00 a.m.,
New York, New
York time, on the date of conversion, to convert any Eurodollar
Borrowing into
an ABR Borrowing, (y) not later than 11:00 a.m., New York, New
York time, three
Business Days prior to conversion or continuation, to convert
all or any portion
of any ABR Borrowing into a Eurodollar Borrowing or to continue
all or any
portion of any Eurodollar Borrowing of any Borrower as a
Eurodollar Borrowing
for an additional Interest Period, and (z) not later than 11:00
a.m., New York
time, three Business Days prior to conversion, to convert all or
any portion of
the Interest Period with respect to any Eurodollar Borrowing to
another Interest
Period subject, in each case, to the following:
(a) each conversion or continuation shall be made among the
Lenders,
in accordance with each Lender's Pro Rata Share of Revolving
Credit Loan
Commitments;
(b) if less than all the outstanding principal amount of any
such
Revolving Credit Loan shall be converted or continued, the
aggregate principal
amount of such Revolving Credit Loan converted or continued
shall be an integral
multiple of One Million Dollars ($1,000,000) and not less than
One Million
Dollars ($1,000,000);
(c) if any Eurodollar Borrowing is converted at a time other
than the
end of the Interest Period applicable thereto, the Company shall
pay any
amounts due to the Lenders under Section 5.10;
(d) any portion of a Borrowing required to be repaid in less
than one
month may not be converted into or continued as a Eurodollar
Borrowing;
(e) any portion of a Eurodollar Borrowing which cannot be
converted
into or continued as a Eurodollar Borrowing by reason of clause
(d) above shall
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be automatically converted at the end of the Interest Period in
effect for such
Revolving Credit Loan Borrowing into an ABR Borrowing; and
(f) accrued interest on an Revolving Credit Loan (or portion
thereof)
being converted or continued shall be paid by the Company at the
time of
conversion or continuation.
Each notice pursuant to this Section 5.15 shall be irrevocable
and specify (w)
the identity and amount of the Revolving Credit Loan Borrowing
that the Company
requests to be converted or continued, (x) whether such
Revolving Credit Loan
Borrowing is to be converted to or continued as a Eurodollar
Borrowing or an ABR
Borrowing, (y) if such notice requests a conversion, the date of
such conversion
(which shall be a Business Day) and (z) if such Revolving Credit
Loan Borrowing
is to be converted to or continued as a Eurodollar Borrowing,
the Interest
Period with respect thereto. If no Interest Period is specified
in any such
notice with respect to any conversion to or continuation as a
Eurodollar
Borrowing, the Company shall be deemed to have selected an
Interest Period of
one (1) month's duration. The Agent shall promptly advise the
other Lenders of
any notice given pursuant to this Section 5.15 and of each
Lender's portion of
any converted or continued Borrowing and the applicable interest
rate. If the
Company shall not have given written notice in accordance with
this Section 5.15
to continue any Eurodollar Borrowing into a subsequent Interest
Period (and
shall not otherwise have given written notice in accordance with
this Section
5.15 to convert such Revolving Credit Loan Borrowing), such
Revolving Credit
Loan Borrowing shall, at the end of the Interest Period
applicable thereto
(unless repaid pursuant to the terms hereof), automatically be
extended as a
Eurodollar Loan with an Interest Period of one (1) month's
duration.
Section 5.16 Extension of Maturity Date.
(a) If no Event of Default has occurred and is then continuing,
the
Company may, by irrevocable written notice to Agent with a copy
to each Lender
prior to April 1, but not before March 1, of each fiscal year
beginning in 2007,
request that the Lenders extend the then applicable Maturity
Date to a date that
is one year later than the Maturity Date then in effect. Each
Lender shall, not
later than April 30 of such fiscal year, give written notice to
the Agent
stating whether such Lender is willing to extend the Maturity
Date as requested.
If the Agent has received the written approvals of such request
from the
Required Lenders, then, effective upon the date of the Agent's
receipt of all
such written approvals from the Required Lenders, the Maturity
Date shall be so
extended for an additional one year period, the term "Maturity
Date" shall mean
such extended date and the Agent shall promptly notify the
Company and the
Lenders that such extension has occurred, provided, if less than
all of the
Lenders have approved the extension, (i) the Total Commitment
shall be reduced
by the amount of any non-consenting Lenders, and the Commitments
of any
non-consenting Lenders shall be terminated (ii) any Obligations
outstanding
above the amount of the reduced Total Commitment shall be repaid
as a condition
to such extension following such reduction, together with all
other amounts
owing any non-consenting Lender pursuant to any Loan Document
and (iii) the
revised Revolving Credit Loan Commitment shall not exceed twenty
percent (20%)
of the revised Total Commitment as a condition to such
extension.
(b) If (i) any Lender gives the Agent written notice that it
is
unwilling to extend the Maturity Date as requested or (ii) any
Lender fails to
provide written approval to Agent of such a request on or before
April 30 of
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such fiscal year, then, (y) subject to Section 5.17(a)(iv) such
Lender shall be
deemed to have declined to extend the Maturity Date, and (z) the
then-current
Maturity Date shall remain in effect in respect of such
Lender.
Section 5.17 Replacement Lenders.
(a) If any Lender (i) makes a demand for compensation pursuant
to
Section 5.8(a), Section 5.8(b) or Section 5.8(c), (ii) notifies
the Agent of the
unlawfulness of such Lender making or maintaining Eurodollar
Loans as provided
in Section 5.9, (iii) requests the Borrowers to make payments
for Taxes or Other
Taxes pursuant to Section 5.14, or (iv) gives the Agent notice
as provided in
Section 5.16(b) that it is unwilling to extend the Maturity Date
or fails to
provide approval of such extension, then in any such event the
Company may,
unless such Lender has notified the Company that the
circumstances giving rise
to such event no longer apply, terminate, in whole but not in
part, the
Commitments of such Lender (the "Terminated Lender") at any time
upon five
Business Days' prior written notice to the Terminated Lender and
the Agent (such
notice referred to herein as a "Notice of Termination").
(b) In order to effect the termination of the Commitments of
a
Terminated Lender, the Company shall (i) obtain an agreement
with one or more
Lenders to increase their Commitments or (ii) request any one or
more other
Persons to become a "Lender" in place and instead of such
Terminated Lender and
agree to accept its Commitments subject to the terms hereof or
(iii) a reduction
under Section 5.5(a); provided, such one or more other such
Persons are Eligible
Assignees and become parties by executing an Assignment and
Acceptance and (the
Lenders or other Persons that agree to accept in whole or in
part the
Commitments being referred to herein as the "Replacement
Lenders"), such that
the aggregate increased and/or accepted Commitments of the
Replacement Lenders
under clauses (i) and (ii) above equal the Commitments of the
Terminated
Lenders.
(c) The Notice of Termination shall include the name of the
Terminated
Lender, the date the termination will occur (the "Termination
Date"), the
Replacement Lender or Replacement Lenders to which the
Terminated Lender will
assign its Commitments, and, if there will be more than one
Replacement Lender,
the portion of the Terminated Lender's Commitments to be
assigned to each
Replacement Lender.
(d) The Termination Date shall not occur until all of the
following
shall have been satisfied: (i) the Terminated Lender shall by
execution and
delivery of an Assignment and Acceptance assign its Commitments
to the
Replacement Lender or Replacement Lenders (pro rata, if there is
more than one
Replacement Lender, in proportion to the portion of the
Terminated Lender's
Commitments to be assigned to each Replacement Lender) indicated
in the Notice
of Termination and shall assign to the Replacement Lender or
Replacement Lenders
its then outstanding Loans so assigned then outstanding (pro
rata as aforesaid),
(ii) the Terminated Lender shall endorse its applicable Note(s),
payable without
recourse, representation or warranty to the order of the
Replacement Lender or
Replacement Lenders (pro rata as aforesaid), (iii) the
Replacement Lender or
Replacement Lenders shall purchase the Note(s) held by the
Terminated Lender
(pro rata as aforesaid) at a price equal to the unpaid principal
amount thereof
plus interest and fees accrued and unpaid to the Termination
Date, (iv) the
Company and each of its Subsidiaries shall, upon request,
execute and deliver,
at its own expense, new Notes to the Replacement Lenders in
accordance with
their respective interests, which new Notes will be in
replacement of and not in
addition to the Notes assigned and endorsed to the Replacement
Lenders by the
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Terminated Lender (v) the Company shall, upon request, pay any
compensation due
to the Terminated Lender under Section 5.17(a) to the extent not
previously paid
to the Agent or Floor Plan Agent and (vi) the Replacement Lender
or Replacement
Lenders will thereupon (pro rata as aforesaid) succeed to and be
substituted in
all respects for the Terminated Lender to the extent of such
assignment from and
after such date with the like effect as if becoming a Lender
pursuant to the
terms of Section 13.3. To the extent not in conflict, the terms
of Section 13.3
shall supplement the provisions of this Section 5.17.
Section 5.18 Increase of Commitments.
(a) At any time after the date hereof, provided that no Event
of
Default shall have occurred and be continuing, the Company may
request an
increase of the aggregate Commitments by notice thereof to the
Agent in writing
(such notice, a "Commitment Increase Notice"), in an amount not
less than
$25,000,000 nor more than $100,000,000 in the aggregate. The
Agent will provide
the Lenders with notice of such Commitment Increase Notice. Such
increase shall
be allocated between Floor Plan Loan Commitments and Revolving
Credit Loan
Commitments as requested by Borrower, provided, following any
such increase, the
Revolving Credit Loan Commitment shall not exceed twenty percent
(20%) of the
Total Commitment. Any such Commitment Increase Notice shall be
in a form
reasonably satisfactory to the Agent, and must offer each Lender
the opportunity
to subscribe for its pro rata share of each increased
Commitment. If the Company
does not receive either telephonic or written notice from the
Agent that all of
the increased Commitment is subscribed for by the Lenders within
fifteen (15)
Business Days after the delivery of the Commitment Increase
Notice, the Company
may, in its sole discretion, but with the consent of the Agent
as to any Person
that is not at such time a Lender, offer to any existing Lender
or to one or
more additional banks or financial institutions the opportunity
to participate
in all or a portion of such unsubscribed portion of the
increased Commitments
pursuant to Section 5.18(b) or Section 5.18(c), as
applicable.
(b) Any additional bank or financial institution that the
Company
selects to offer participation in the increased Commitments, and
that elects to
become a party to this Agreement with the Company and the Agent
(a "New
Lender"), by the execution of an agreement (a "New Lender
Agreement")
substantially in the form of Exhibit 5.18(b), shall become a
Lender for all
purposes and to the same extent as if originally a party hereof
and shall be
bound by and entitled to the benefits of this Agreement. The
Commitment of any
such New Lender shall be in an amount not less than $10,000,000,
and such
Commitment must be comprised of both a Floor Plan Loan
Commitment and a
Revolving Credit Loan Commitment on a pro rata basis.
(c) Any Lender that accepts an offer by the Company to increase
its
Commitment pursuant to this Section 5.18 shall, in each case,
execute an
agreement whereby it agrees to be bound by, and accept the
benefits of, this
Agreement and the other Loan Documents (a "Commitment Increase
Agreement")
substantially in the form of Exhibit 5.18(c), with the Company
and the Agent.
Upon delivery to the Agent of one or more Commitment Increase
Agreements, the
Agent shall enter such New Lender and its Commitment in the
Register and
distribute a new Schedule 1.1(a) reflecting the Commitment of
such New Lender
and the Total Commitments, as increased.
(d) The effectiveness of any Commitment Increase Agreement shall
be
contingent upon receipt by the Agent of such corporate
resolutions of the
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Company and legal opinions of counsel to the Company as the
Agent shall
reasonably request with respect thereto, in each case in form
and substance
reasonably satisfactory to the Agent.
(e) Additional Loans made on or after the date that any bank
or
financial institution becomes a New Lender pursuant to Section
5.18(b) or any
Lender's Commitment is increased pursuant to Section 5.18(c),
(the
"Re-Allocation Date") shall be made pro rata based on their
respective Floor
Plan Loan Commitments in effect on or after such Re-Allocation
Date (except to
the extent that any such pro rata borrowings would result in any
Lender making
an aggregate principal amount of Loans in excess of its
Commitment, in which
case such excess amount will be allocated to, and made by, such
New Lender
and/or Lenders with such increased Commitments to the extent of,
and pro rata
based on, their respective Commitments), and continuations of
Eurodollar Loans
outstanding on such Re-Allocation Date shall be effected by
repayment of such
Eurodollar Loans on the last day of the Interest Period
applicable thereto and
the making of new Eurodollar Loans pro rata based on the
respective Commitments
in effect on and after such Re-Allocation Date. In the event
that on any such
Re-Allocation Date there is an unpaid principal amount of
Eurodollar Loans, such
Eurodollar Loans shall remain outstanding with the respective
holders thereof
until the expiration of their respective Interest Periods
(unless the Company
elects to prepay any thereof in accordance with the applicable
provisions of
this Agreement), and interest on and repayments of such
Eurodollar Loans will be
paid thereon to the respective Lenders holding such Eurodollar
Loans pro rata
based on the respective principal amounts thereof
outstanding.
(f) Notwithstanding anything to the contrary in this Section
5.18,
(i) no Lender shall have any obligation to increase its
Commitment unless it
agrees to do so in its sole discretion and (ii) after giving
effect to any
increase in the Commitments pursuant to this Section 5.18, the
aggregate amount
of the Commitments shall not exceed $900,000,000.
(g) The Company shall execute and deliver a Note or Notes to
each New
Lender and replacement Notes to Lenders signing a Commitment
Increase Agreement
in the amount of said Persons' Commitments.
ARTICLE VI.
LETTERS OF CREDIT
Section 6.1 General.
(a) On the terms and conditions set forth herein (i) the Issuing
Bank
agrees from time to time on any Business Day during the period
from the Closing
Date to the Business Day which is thirty (30) days prior to the
Maturity Date
(the "Letter of Credit Termination Date") to issue one or more
Letter or Letters
of Credit for the account of the Company; and (ii) the Revolving
Credit Loan
Lenders severally agree to participate in such Letters of
Credit; provided, that
the Issuing Bank shall not be obligated to Issue, and no Lender
shall be
obligated to participate in, any Letter of Credit if, as of the
date of request
of such Letter of Credit, after giving effect to the maximum
amount payable
under such Letter of Credit, (y) the aggregate principal amount
of all Letter of
Credit Obligations outstanding shall at any time exceed the
Letter of Credit
Commitment or (z) the aggregate principal amount of Revolving
Credit Loans
outstanding, plus Swing Line Loans outstanding under the
Revolving Credit Loan
Commitments, plus the Letter of Credit Obligations outstanding
as of such day
shall exceed the Revolving Credit Loan Commitments of all the
Lenders. Within
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the foregoing limits, and subject to the other terms and
conditions hereof, the
ability of the Company to obtain Letters of Credit shall be
fully revolving,
and, accordingly, the Borrowers may, during the foregoing
period, obtain Letters
of Credit to replace Letters of Credit which have expired or
which have been
drawn upon and reimbursed.
(b) The Issuing Bank is under no obligation to Issue any Letter
of
Credit if: (i) any order, judgment or decree of any Governmental
Authority shall
by its terms purport to enjoin or restrain the Issuing Bank from
Issuing such
Letter of Credit, or any Requirement of Law applicable to the
Issuing Bank or
any request or directive (whether or not having the force of
law) from any
Governmental Authority with jurisdiction over the Issuing Bank
shall prohibit
the Issuing Bank, or request that the Issuing Bank refrain, from
the Issuance of
Letters of Credit generally or such Letter of Credit in
particular or shall
impose upon the Issuing Bank with respect to such Letter of
Credit any
restriction, reserve or capital requirement (for which the
Issuing Bank is not
otherwise compensated hereunder) not in effect on the Closing
Date; (ii) the
Issuing Bank has received written notice from any Lender, the
Agent or any
Borrower, on or before the Business Day prior to the requested
date of Issuance
of such Letter of Credit, that one or more of the conditions
contained in
Section 8.3 in respect of Revolving Credit Loans is not then
satisfied; (iii)
the expiration date of any requested Letter of Credit is more
than one (1) year
from the date of Issuance thereof or after the Maturity Date;
(iv) any requested
Letter of Credit is not in form and substance reasonably
acceptable to the
Issuing Bank, or the Issuance of such Letter of Credit shall
violate any
applicable policies of the Issuing Bank or shall be denominated
in a currency
other than Dollars.
Section 6.2 Issuance, Amendment and Renewal of Letters of
Credit.
(a) Each Letter of Credit shall be issued upon the irrevocable
written
request of the Company received by the Issuing Bank (with a copy
sent by the
Company to the Agent) at least three (3) Business Days prior to
the proposed
date of Issuance. Each such request for Issuance of a Letter of
Credit shall be
by facsimile, confirmed immediately in writing, in the form of a
Letter of
Credit Application. Each Letter of Credit (i) will be for the
account of the
Company, (ii) will be a non-transferable standby letter of
credit to support
certain payment or performance obligations of the Company.
(b) Prior to the Issuance of any Letter of Credit, the Issuing
Bank
will confirm with the Agent (by telephone or in writing) that
the Agent has
received a copy of the Letter of Credit Application or Letter of
Credit
Amendment Application from the Company and, if not, the Issuing
Bank will
provide the Agent with a copy thereof. Unless the Issuing Bank
has received
notice prior to the Issuance of a requested Letter of Credit
from the Agent (i)
directing the Issuing Bank not to Issue such Letter of Credit
because such
Issuance is not then permitted under this Section 6.2, or (ii)
that one or more
conditions specified in Section 8.3 in respect of Revolving
Credit Loans are not
then satisfied or waived; then, subject to the terms and
conditions hereof, the
Issuing Bank shall, on the requested date, Issue a Letter of
Credit for the
account of the Company in accordance with the Issuing Bank's
usual and customary
business practices.
(c) From time to time while a Letter of Credit is outstanding
and
prior to the Letter of Credit Termination Date, the Issuing Bank
will, upon the
written request of the Company received by the Issuing Bank
(with a copy sent by
the Company to the Agent) at least three (3) Business Days (or
such shorter time
as the Issuing Bank may agree in a particular instance in its
sole discretion)
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prior to the proposed date of amendment or extension, amend any
Letter of Credit
Issued by it or extend the expiry date. Each such request for
amendment or
extension of a Letter of Credit shall be made by facsimile,
confirmed
immediately in an original writing, made in such form as the
Issuing Bank shall
require in accordance with its usual and customary business
practices. The
Issuing Bank shall be under no obligation to amend or extend the
expiry date any
Letter of Credit if: (i) the Issuing Bank would have no
obligation at such time
to Issue such amended Letter of Credit under the terms of this
Agreement; or
(ii) the beneficiary of any such Letter of Credit does not
accept the proposed
amendment to the Letter of Credit.
(d) Upon receipt of notice from the Issuing Bank, the Agent
will
promptly notify the Lenders of the Issuance of a Letter of
Credit and any
amendment or extension thereto.
(e) If any outstanding Letter of Credit shall provide that it
shall be
automatically renewed unless the beneficiary thereof receives
notice from the
Issuing Bank that such Letter of Credit shall not be renewed,
the Issuing Bank
shall be permitted to allow such Letter of Credit to be renewed
subject to the
terms of Section 6.1(b), and the Company and the Lenders hereby
authorize such
renewal. The Issuing Bank shall not be obligated to allow such
Letter of Credit
to renew if the Issuing Bank would have no obligation at such
time to Issue or
amend such Letter of Credit under the terms of this
Agreement.
(f) The Issuing Bank may, at its election (or as required by
the
Agent at the direction of the Required Lenders), deliver any
notices of
termination or other communications to any Letter of Credit
beneficiary or
transferee, and take any other action as necessary or
appropriate, at any time
and from time to time, in order to cause the expiration date of
any Letter of
Credit to be a date not later than the Maturity Date.
(g) As among the Issuing Bank, the Lenders and the Company,
this
Agreement shall control in the event of any conflict with any
documents
executed in connection with a Letter of Credit issued
hereunder.
(h) The Issuing Bank will also deliver to the Agent,
concurrently or
promptly following its delivery of a Letter of Credit, or
amendment or extension
to a Letter of Credit, to an advising bank or a beneficiary, a
true and complete
copy of each such Letter of Credit, amendment or extension to a
Letter of
Credit.
Section 6.3 Risk Participations, Drawings and
Reimbursements.
(a) Immediately upon the Issuance of each Letter of Credit,
the
Revolving Credit Loan Lenders hereby irrevocably and
unconditionally agree to,
and hereby, purchase from the Issuing Bank participation
interests in such
Letters of Credit or each drawing thereunder, ratably in amounts
equal to the
product of (i) each such Lender's Pro Rata Share of Revolving
Credit Loan
Commitments, and (ii) the maximum amount available to be drawn
under such Letter
of Credit. Each Issuance of a Letter of Credit shall be applied
to utilize the
Revolving Credit Loan Commitment of each Revolving Credit Loan
Lender by an
amount equal to the amount of such participation.
(b) In the event of any request for a drawing under a Letter
of
Credit by the beneficiary or transferee thereof, the Issuing
Bank will promptly
notify the Company. In the case of Letters of Credit under which
drawings are
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payable one or more Business Days after the drawing is made, the
Issuing Bank
will give such notice to the Company at least one Business Day
prior to the date
any such drawing is payable. In each such instance, the Company
shall reimburse
the Issuing Bank prior to 11:00 a.m., New York, New York time,
on each date that
any amount is paid by the Issuing Bank under any Letter of
Credit in an amount
equal to the amount so paid by the Issuing Bank. In the case of
Letters of
Credit under which drawings are payable on the same Business Day
as presentment
of such Letter of Credit, the Issuing Bank will give such notice
to the Company
on the date that such drawing is paid by the Issuing Bank. In
each such
instance, the Company shall reimburse the Issuing Bank prior to
2:00 p.m., New
York, New York time if the Company receives notice prior to
12:00 p.m., New
York, New York time, otherwise by 11:00 a.m., New York, New York
time on the
next Business Day. In the event the Company fails to reimburse
the Issuing Bank
for the full amount of any drawing under any Letter of Credit in
accordance with
this Section 6.3(b), the Issuing Bank will promptly notify the
Agent and the
Agent will promptly notify each Lender thereof, and the Company
shall be deemed
to have requested the Lenders to make a Revolving Credit Loan
that is an ABR
Borrowing to be disbursed on the date payment is due from the
Company (the
"Honor Date") under such Letter of Credit, subject to the amount
of the
unutilized portion of the Revolving Credit Loan Commitment. Any
notice given by
the Issuing Bank or the Agent pursuant to this Section 6.3(b)
may be oral if
immediately confirmed in writing (including by facsimile);
provided that the
lack of such an immediate confirmation shall not affect the
conclusiveness or
binding effect of such notice.
(c) Upon any notice pursuant to Section 6.3(b), the Revolving
Credit
Loan Lenders shall, subject to the conditions set forth in
Section 8.3, in
accordance with their respective Pro Rata Share of Revolving
Credit Loan
Commitments, make available to the Agent for the account of the
Issuing Bank an
amount in Dollars and in immediately available funds equal to
the amount of the
drawing, whereupon the Lenders shall each be deemed to have made
a Revolving
Credit Loan that is an ABR Borrowing to the applicable Borrower
in that amount.
If any Revolving Credit Loan Lender so notified fails to make
available to the
Agent for the account of the Issuing Bank said amount by no
later than 12:00
noon, New York, New York time, on the Honor Date, then interest
shall accrue on
such Lender's obligation to make such payment, from the Honor
Date to the date
such Lender makes such payment, at the rate per annum equal to
the Federal Funds
Effective Rate in effect from time to time during such period.
The Agent will
promptly give notice to each Lender of the occurrence of any
Honor Date, but
failure of the Agent to give any such notice on the Honor Date
or in sufficient
time to enable any Lender to effect such payment on such date
shall not relieve
such Lender from its obligations under this Section 6.3.
(d) Any drawing under a Letter of Credit not reimbursed by the
Company
when due and not repaid by a Revolving Credit Loan pursuant to
Section 6.3(b)
because of a failure of the Company to satisfy the conditions
set forth in
Section 8.3 or for any other reason, shall be due and payable on
demand
(together with interest) and shall bear interest at a rate per
annum equal to
the Alternate Base Rate plus the Applicable Margin plus two
percent (2%) per
annum, and, only if the conditions precedent to issuance of such
Letter of
Credit in Section 6.2(b) were satisfied at the time of issuance
or renewal of
such Letter of Credit, each Lender shall purchase a pro rata
portion of such
unreimbursed drawing from the Issuing Bank.
(e) Each Revolving Credit Loan Lender's obligation in accordance
with
this Agreement to make Revolving Credit Loans or participate in
Letters of
Credit, as contemplated by this Section 6.3, as a result of a
drawing under the
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Letter of Credit, shall be absolute and unconditional and
without recourse to
the Issuing Bank and shall not be affected by any circumstance,
including (i)
any set-off, counterclaim, recoupment, defense or other right
which such Lender
may have against the Issuing Bank, any Borrower or any other
Person for any
reason whatsoever, (ii) the occurrence or continuance of a
Default, an Event of
Default or a Material Adverse Effect, or (iii) any other
circumstance, happening
or event whatsoever, whether or not similar to any of the
foregoing.
Section 6.4 Repayment of Participation.
(a) If the Agent receives immediately available funds from the
Company
for the account of the Issuing Bank to pay any unreimbursed
drawing under a
Letter of Credit, in respect of which any Revolving Credit Loan
Lender has paid
the Agent for the account of the Issuing Bank for such Lender's
participation in
an unreimbursed drawing under a Letter of Credit pursuant to
Section 6.3, the
Agent will pay to each Lender, in the same funds as those
received by the Agent
for the account of the Issuing Bank, the amount of such funds
attributable to
each such Lender, and the Issuing Bank shall receive and retain
the amount of
such funds attributable to any Lender that did not so pay the
Agent for the
account of the Issuing Bank. (b) If the Agent or the Issuing
Bank is required at
any time to return to the Borrowers or to a trustee, receiver,
liquidator,
custodian, or any official in an Insolvency Proceeding, any
portion of the
payments made by the Company to the Agent for the account of the
Issuing Bank
pursuant to Section 6.4(a) in reimbursement of a payment made
under a Letter of
Credit, or interest thereon, each of the Revolving Credit Loan
Lenders shall, on
demand of the Agent, in accordance with each Lender's Pro Rata
Share of
Revolving Credit Loan Commitments, forthwith return to the Agent
or the Issuing
Bank the amount so returned by the Agent or the
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