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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported): May 12, 1999
GROUP 1 AUTOMOTIVE, INC.
(Exact name of Registrant as specified in its charter)
Delaware 76-0506313
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
950 Echo Lane, Suite 350
Houston, Texas 77024
(Address of principal executive offices) (Zip code)
(713) 467-6268
(Registrant's telephone number including area code)
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ITEM 5. OTHER EVENTS
On May 12, 1999, the Company closed an amendment to its Revolving
Credit Agreement. The amendment increased the facility to a total of $500
million. The facility consists of two tranches: the floorplan tranche and the
acquisition tranche. The floorplan tranche capacity totals $390 million and the
acquisition tranche capacity totals $110 million.
ITEM 7. EXHIBITS
(c) 10.1 Third Amended and Restated Revolving Credit Agreement, dated
as of May 12, 1999.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned, thereunto duly authorized.
Group 1 Automotive, Inc.
May 25, 1999 By: /s/ Scott L. Thompson
- ------------------- -----------------------------------------------
Date Scott L. Thompson, Senior Vice President, Chief
Financial Officer and Treasurer
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INDEX TO EXHIBIT
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
- ------- -----------
<S> <C>
10.1 Third Amended and Restated Revolving Credit Agreement, dated as of May 12, 1999.
</TABLE>
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EXHIBIT 10.1
================================================================================
THIRD AMENDED AND RESTATED
REVOLVING CREDIT AGREEMENT
DATED AS OF
MAY 12, 1999
AMONG
GROUP 1 AUTOMOTIVE, INC.,
ITS SUBSIDIARY BORROWERS LISTED HEREIN
THE BANKS LISTED HEREIN,
CHASE BANK OF TEXAS, N.A.,
FORMERLY KNOWN AS TEXAS COMMERCE BANK
NATIONAL ASSOCIATION
AS ADMINISTRATIVE AGENT
COMERICA BANK
AS FLOOR PLAN AGENT,
NATIONSBANK, N.A., DBA BANK OF AMERICA, N.A.
AS DOCUMENTATION AGENT,
AND
U. S. BANK NATIONAL ASSOCIATION, BANK ONE TEXAS, N.A., AND
BANKBOSTON, N.A.,
AS CO-AGENTS
================================================================================
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THIS THIRD AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT dated as of
May 12, 1999, is entered into among GROUP 1 AUTOMOTIVE, 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 shall become parties to this Agreement (the Company and the
Subsidiaries are sometimes referred to herein as, individually, a "Borrower,"
and collectively, the "Borrowers"), the Banks listed on the signature pages
hereof (the "Banks"), CHASE BANK OF TEXAS, N.A., a national banking association,
formerly known as Texas Commerce Bank National Association, as Administrative
Agent for the Banks (in such capacity together with any successor in such
capacity pursuant to Section 12.6, the "Agent"), COMERICA BANK, a Michigan
banking association, as Floor Plan Agent for the Banks (in such capacity
together with any successor in such capacity pursuant to Section 12.13, the
"Floor Plan Agent").
RECITALS
WHEREAS, on December 31, 1997, the Borrowers, the Banks, the Agent and
the Floor Plan Agent entered into the Revolving Credit Agreement (the "Initial
Agreement"), whereby upon the terms and conditions therein stated, the Banks
agreed to make loans to the Borrowers up to the aggregate amount of
$125,000,000, to be used by the Borrowers for the purposes set forth in Section
9.9 of the Initial Agreement; and
WHEREAS, on, June 19, 1998, the Borrowers, the Banks, the Agent and the
Floor Plan Agent amended the Initial Agreement and entered into an Amended and
Restated Revolving Credit Agreement (hereinafter called the "Amended and
Restated Agreement") whereby, upon the terms and conditions therein stated, the
Banks agreed to make loans to the Borrowers up to the aggregate amount of
$345,000,000 to be used by the Borrowers for the purposes set forth in Section
9.9 of the Amended and Restated Agreement; and
WHEREAS, on, November 10, 1998, the Borrowers, the Banks, the Agent and
the Floor Plan Agent amended the Amended and Restated Agreement and entered into
the Second Amended and Restated Revolving Credit Agreement (hereinafter called
the "Second Amended and Restated Agreement") whereby, upon the terms and
conditions therein stated, the Banks agreed to make loans to the Borrowers up to
the aggregate amount of $425,000,000 to be used by the Borrowers for the
purposes set forth in Section 9.9 of the Second Amended and Restated Agreement;
and
WHEREAS, the Borrowers, the Banks, the Agent and the Floor Plan Agent
mutually desire to amend certain aspects of the Second Amended and Restated
Agreement;
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained, the parties hereto agree as follows:
THIRD AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
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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 comprised of Alternate Base Rate
Loans.
"Accounts" means any and all rights of the Company or any of its
Subsidiaries to payment for goods and services sold or leased, including any
such right evidenced by chattel paper, whether due or to become due, whether or
not it has been earned by performance, and whether now or hereafter acquired or
arising in the future, including accounts receivable from Affiliates.
"Acquisition" means the acquisition by the Company or any of its wholly
owned Subsidiaries of (i) not less than one hundred percent (100%) of the
capital stock or other evidence of equity ownership of an Auto Dealer, or (ii)
all or substantially all of the assets of an Auto Dealer.
"Acquisition Loan" has the meaning specified in Section 3.1.
"Acquisition Loan Advance Limit" means as of any Borrowing Date of an
Acquisition Loan, for the Company and its Subsidiaries on a consolidated basis,
calculated as of the last day of the most recently ended fiscal quarter or year
for which financial statements have been delivered under either Section 7.5 or
9.5, an amount equal to the lesser of (i) $110,000,000 MINUS the amount, if any,
of any portion of the Acquisition Loan Commitment allocated to Floor Plan
Borrowings or the Floor Plan Loan Commitment, or (ii) the sum of (y) the
aggregate amount for all Qualifying Subsidiaries of two (2) times the difference
between Pro Forma EBITDA of each such Qualifying Subsidiary MINUS Pro Forma
Interest Expense of each such Qualifying Subsidiary PLUS (z) the lesser of (A)
the aggregate amount for all Qualifying Ford Subsidiaries of two (2) times the
difference between Pro Forma EBITDA of each such Qualifying Ford Subsidiary
MINUS Pro Forma Interest Expense of each such Qualifying Ford Subsidiary, or (B)
the amount derived under clause (x) of the definition of the Ford Borrower
Liability Amount and such amount shall not include the Pro Forma EBITDA of any
of the GM Borrowers. If the purpose of any Borrowing of an Acquisition Loan is
to make a Permitted Acquisition, then the foregoing amounts shall be calculated
to give effect to such Permitted Acquisition as if such Acquisition had been
consummated on or before the last day of the fiscal quarter immediately
preceding such Borrowing Date.
"Acquisition Loan Commitment" means for each Bank, its obligation to
make Acquisition Loans to the Company up to the amount set forth opposite such
Bank's name on Schedule I under the caption "Acquisition Loan Commitments" (as
the same may be permanently terminated or reduced or increased from time to time
pursuant to the applicable provisions in Sections 2.3(g)(iii),
THIRD AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
2
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3.4, 5.5, or 11.1 and as such amount may be increased or decreased from time to
time by assignment or assumption pursuant to Section 13.3(b)).
"Acquisition Loan Worksheet" has the meaning specified in Section
9.16(a)(viii).
"Addendum" means the form of Addendum substantially in the form of
Exhibit A.
"Adjusted Indebtedness" means as of any date of determination, for the
Company and its Subsidiaries, on a consolidated basis, the difference between
(i) Indebtedness minus (ii) the sum of (x) Floor Plan Loans outstanding, (y)
Retail Loan Guaranties not in excess of ten percent (10%) of Stockholder's
Equity and (z) Subordinated Indebtedness.
"Adjusted Total Indebtedness" means as of any date of determination,
for the Company and its Subsidiaries, on a consolidated basis, the difference
between (i) Indebtedness minus (ii) the sum of (y) Floor Plan Loans outstanding,
and (z) Retail Loan Guaranties not in excess of ten percent (10%) of
Stockholders' Equity.
"Adjustment Period" means the period of time commencing on a Floor Plan
Adjustment Date and ending on the next succeeding Floor Plan Adjustment Date.
"Administrative Questionnaire" means an Administrative Questionnaire in
the form of Exhibit B hereto, which each Bank shall complete and provide to the
Agent.
"Affiliate" means any Person (including any member of the immediate
family of any such natural 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 the Company 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" 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 Third Amended and Restated Revolving Credit
Agreement.
"Alternate Base Rate" means, for any day, a fluctuating rate per annum
(rounded upwards to the next highest one-eighth (1/8) of one percent (1%) if not
already an integral multiple of one-eighth (1/8) of one percent (1%)) equal to
the greater of (a) the Prime Rate in effect on such day, or (b) the Federal
Funds Effective Rate in effect on such day plus one-half (1/2) of one percent
(1%). "Prime Rate" shall mean, as of a particular date, the prime rate most
recently announced by Chase
THIRD AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
3
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and thereafter entered in the minutes of Chase's Loan and Discount Committee,
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, 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 Interest Rate" means the LIBO Rate, the Alternate Base
Rate, or the Comerica Prime-based Rate, as selected by the Company from time to
time subject to the terms and conditions of this Agreement.
"Applicable Margin" means, on any date, with respect to Eurodollar
Loans which are Acquisition Loans or to Alternate Base Rate Loans, as the case
may be, the applicable percentages set forth below based upon the Total Leverage
Ratio as in effect as of such date.
<TABLE>
<CAPTION>
Total Leverage Eurodollar Alternate Base
Ratio Margin Rate Margin
----- ------ -----------
<S> <C> <C> <C>
Category 1 x > 2.50 3.25% 1.75%
Category 2 1.75 < x <= 2.50 3.00% 1.50%
Category 3 1.25 < x <= 1.75 2.50% 1.00%
Category 4 1.00 < x <= 1.25 2.00% .50%
Category 5 x <= 1.00 1.75% .25%
</TABLE>
Each change in the Applicable Margin shall apply to all Eurodollar
Loans that are outstanding at any time 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.
THIRD AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
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"Applicable Lending Office" means, with respect to each Bank, such
Bank's Domestic Lending Office in the case of a Comerica Prime Rate Loan and an
Alternate Base Rate Loan and such Bank's Eurodollar Lending Office in the case
of a Eurodollar Loan.
"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.
"Banks" has the meaning specified in the introduction to this
Agreement, and Bank(s) shall include the Swing Line Bank unless the context
otherwise requires.
"Board" means the Board of Governors of the Federal Reserve System of
the United States.
"Book Value" means the wholesale value set forth in the most recent
edition of the National Automotive Dealers Association ("N.A.D.A.") Official
Used Car Guide Retail Edition.
"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 Banks 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 each Bank are open for
business, 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, in New York City, New York, Detroit, Michigan and in Houston, Texas.
"Capital Lease" means any lease required to be accounted for as a
capital lease under generally accepted accounting principles.
"Cash Collateral Account" has the meaning specified in Section 6.8(a).
"Cash Receipted" means, in connection with the sale of a Motor Vehicle,
that cash has been received upon the sale thereof.
"Change of Control" will be deemed to have occurred if either (a) the
shares of the Company shall cease to be publicly traded or (b) at any time after
the Closing Date, individuals who were directors of the Company on the Closing
Date shall cease to constitute a majority of the members of the board of
directors of the Company.
THIRD AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
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"Chase" means Chase Bank of Texas, N.A. and its successors and assigns
as permitted in this Agreement.
"Closing Date" means the earliest date upon which all of the following
shall have occurred: counterparts of this Agreement and all of the Loan
Documents shall have been executed by each Borrower, each Bank, the Agent and
the Floor Plan Agent and the Agent shall have received counterparts hereof which
taken together, bear the signature of all such signatories and all of the other
conditions to the initial Borrowing or the issuance of any Letters of Credit set
forth in Section 8.1 hereof shall have been satisfied.
"Code" means the Internal Revenue Code of 1986 and any successor
statute of similar import, together with the regulations thereunder, in each
case as in effect from time to time. References to sections of the Code shall be
construed to also refer to any successor sections.
"Collateral" means the collateral described in each of the Loan
Documents including the Security Documents and shall include (a) the proceeds
(net of cash taxes and other expenses associated with such disposition) from the
disposition of the capital stock and any other equity interests of all
Subsidiaries of the Company or other Borrowers, now or hereafter existing, and
(b) with respect each of the Borrowers, (i) all inventory, including without
limitation, Motor Vehicles, (ii) all Accounts, (iii) all equipment, machinery,
furniture and fixtures, and (iv) all real estate owned or leased by any Phase 1
Borrower upon which a Lien has been granted as of the Closing Date.
"Comerica Alternate Base Rate" shall mean, for any day, an interest
rate per annum equal to the Federal Funds Effective Rate in effect on such day,
plus one percent (1%).
"Comerica Prime-based Rate" shall mean, for any day, that rate of
interest which is equal to (a) the greater of (i) the Comerica Prime Rate and
(ii) the Comerica Alternate Base Rate minus (b) 0.50%.
"Comerica Prime Rate" shall mean the per annum rate of interest
announced by the Floor Plan Agent, at its main office from time to time as its
"prime rate" (it being acknowledged that such announced rate may not necessarily
be the lowest rate charged by the Floor Plan Agent to any of its customers),
which rate shall change simultaneously with any change in such announced rate.
"Comerica Prime Rate Loan" or "Comerica Prime Rate Borrowing" means any
Loan with respect to which the Company shall have selected an interest rate
based on the Comerica Prime-based Rate in accordance with the provisions of
this Agreement.
"Commitment" means (a) for each Bank (or, as to any Person who becomes
a Bank after the Closing Date), the sum of (i) such Bank's Acquisition Loan
Commitment, plus (ii) such Bank's Floor Plan Loan Commitment; and (b) for the
Swing Line Bank, its obligation to make Swing Line Loans to the Floor Plan
Borrowers up to the amount of the Swing Line Commitment as the same may be
increased or decreased pursuant to the provisions of Sections 2.3(g)(iii), 3.4
or 5.5.
THIRD AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
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"Commitment Fees" means, collectively, the Floor Plan Loan Commitment
Fees and the Acquisition Loan Commitment Fees as such terms are defined in
Section 5.4(a).
"Communications" has the meaning specified in Section 13.1.
"Company" has the meaning specified in the introduction to this
Agreement.
"Confidential Information Memorandum" means the Confidential
Information Memorandum dated April, 1998 furnished by Chase Securities Inc., as
Arranger on behalf of the Agent, the Floor Plan Agent and the Banks, relating to
the credit facilities evidenced by this Agreement as the same may be updated or
amended from time to time.
"Consolidated EBITDA" means, for any period for which the amount
thereof is to be determined, Consolidated Net Income for such period, plus, to
the extent deducted in the determination of Consolidated Net Income and without
duplication with items included in the adjustments under generally accepted
accounting principles to net income in the determination of Consolidated Net
Income, (a) provisions for income taxes, (b) Interest Expense, (c) depreciation
and amortization expense, and (d) other non-cash income or charges.
"Consolidated Net Income" means for any period for which the amount
thereof is to be determined, the Net Income of the Company in accordance with
generally accepted accounting principles.
"Consolidated Pro Forma EBITDA" means, Pro Forma EBITDA of the Company
and its Subsidiaries, determined on a consolidated basis.
"Current Ratio" means, as of any date of determination, for the Company
and its Subsidiaries on a consolidated basis, the quotient of (a) current assets
as of such date divided by (b) the sum of (without duplication) current
liabilities and the outstanding balance of all Floor Plan Indebtedness as of
such date.
"Curtailment Date" means (a) with respect to a new Motor Vehicle, one
year after the date it is Deemed Floored, (b) with respect to a Fleet Motor
Vehicle, thirty (30) days from the date it is Deemed Floored, (c) with respect
to a Demonstrator, two hundred ten (210) days from the date it is Deemed
Floored, (d) with respect to a Used Motor Vehicle, one hundred twenty (120) days
from the date it is Deemed Floored, (v) with respect to a Program Car, one
hundred eighty (180) days from the date it is Deemed Floored and (vi) with
respect to a Rental Motor Vehicle the first to occur of (y) two (2) years from
the date it is Deemed Floored or (z) the introduction by the Manufacturer of the
third model year for such Motor Vehicle.
"Dealer Franchise Agreement" has the meaning specified in Section 7.20.
THIRD AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
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"Deemed Floored" means with respect to a Motor Vehicle, the earlier of
(a) the date a Floor Plan Loan Borrowing is deemed by the Floor Plan Agent in
its sole discretion to be advanced by the Floor Plan Agent; or (b) thirty (30)
days after an advance is made on a Floor Plan Loan with respect to 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 new Motor Vehicle with mileage resulting from
customer test drives or use of such Motor Vehicle by dealership personnel.
"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 Bank, the office
of such Bank specified as its "Domestic Lending Office" on such Bank's signature
page to this Agreement or, as to any Person who becomes a Bank after the Closing
Date, on the signature page of the Assignment and Acceptance executed by such
Person or such other office of such Bank as such Bank may hereafter designate
from time to time as its "Domestic Lending Office" by notice to the Company and
the Agent.
"Draft" means a draft on a Floor Plan Borrower's account at the Floor
Plan Agent made by a Manufacturer in accordance with the terms of a Drafting
Agreement by and among the Floor Plan Agent, the Manufacturer and/or any of the
Borrowers.
"Drafting Agreement" means an agreement (whether or not issued in the
form of a letter of credit) by and between the Floor Plan Agent 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 Plan Agent (via ACH
electronic transfer or otherwise) for payment of invoices identifying Motor
Vehicles delivered or shipped to the applicable Floor Plan Borrower, such
agreements to be substantially in the form of the existing Drafting Agreements
identified in Schedule II hereto or otherwise on terms and conditions consistent
with the usual customs and practices in effect from time to time for the floor
plan industry.
"EBITDA" means, for any Person, for any period for which the amount
thereof is to be determined, 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 generally accepted accounting principles to
Net Income in the determination of net income, (a) provisions for income taxes,
(b) Interest Expense, (c) depreciation and amortization expense and (d) other
non-cash income or charges.
THIRD AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
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"Earnings Available for Fixed Charges" means, for any period for which
the amount thereof is to be determined, Consolidated EBITDA plus (a) lease
expense of the Company and its Subsidiaries on a consolidated basis minus (b)
the cash income taxes of the Company and its Subsidiaries, determined on a
consolidated basis as reported in the annual audited and the quarterly unaudited
financial statements.
"Eligible Assignee" means (a) any Bank or any Affiliate of any Bank (b)
a commercial bank organized under the laws of the United States, or any state
there of, and having total assets in excess of One Billion Dollars
($1,000,000,000) or its equivalent in any other currency and having deposits
that rated in either of the two highest generic letter rating categories
(without regard to subcategories) from either S&P or Moody's or a comparable
nationally recognized national or international rating agency; (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 or agency 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; or (e) any other Person approved by the Agent and the Company, (if such
consent is required pursuant to Section 13.3) whose consent shall not be
unreasonably withheld.
"ERISA" means the Employee Retirement Income Security Act of 1974, and
any successor statute of similar import, 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 of ERISA.
"Escrow and Security Agreement" means an Escrow and Security Agreement
substantially in the form of Exhibit D attached hereto, executed by the Company
and certain other Borrowers in favor of the Agent for the benefit of the Banks
with respect to all of the capital stock and other equity interests of the
Company's direct and indirect Subsidiaries with respect to which the Company or
such other Borrower is not prohibited by a Manufacturer from being a party
thereto.
"Eurodollar Borrowing" means a Borrowing comprised of Eurodollar Loans.
"Eurodollar Lending Office" means, with respect to each Bank, the
branches or Affiliates of such Bank which such Bank has designated as its
"Eurodollar Lending Office" on such Bank's signature page to this Agreement or,
as to any Person who becomes a Bank after the Closing Date, on the signature
page of the Assignment and Acceptance executed by such Person or such other
office of such Bank as such Bank may hereafter designate from time to time as
its "Eurodollar Lending Office" by notice to the Company and the Agent.
THIRD AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
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"Eurodollar Loan" means 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" has the meaning specified in Section 11.1.
"Excess/Payments in Process" means as of any date of determination the
funds transferred from any Floor Plan Borrower to the Floor Plan Agent in
payment of Floor Plan Loans which have at such time not yet been applied on a
VIN specific basis.
"Federal Funds Effective Rate" has the meaning specified in the
definition of "Alternate Base Rate."
"Fixed Charges" means, for any period for which the amount thereof is
to be determined, the sum of Interest Expense, lease expense, principal
payments, cash dividends, and capital expenditures (other than capital
expenditures on Property which is or will be within six (6) months of the date
of such expenditures the subject of a Qualified Sale/Leaseback Transaction), in
each case, for the Company and its Subsidiaries, determined on a consolidated
basis.
"Fixed Charge Coverage Ratio" means the quotient of (a) Earnings
Available for Fixed Charges divided by (b) Fixed Charges.
"Fleet Motor Vehicle" means one of a large group of new Motor Vehicles
sold to a purchaser (e.g., a rental car agency) which purchases vehicles for
short term use.
"Floor Plan Adjustment Date" means each of (a) the last Business Day of
each calendar month, and (b) the first Business Day after two (2) Business Days
prior written notice from the Swing Line Bank to the Agent requesting therein a
Floor Plan Adjustment Date, but in any event not less frequently than once each
calendar month.
"Floor Plan Advance Limit" means (a) with respect to new Motor
Vehicles, Demonstrators, and Rental Motor Vehicles the wholesale purchase price
charged by a Manufacturer as reflected in the invoice to the Company or any
other Floor Plan Borrower for such Motor Vehicles, and (b) with respect to Used
Motor Vehicles and Program Cars, the cost of such Motor Vehicles to the Company
or any other Floor Plan Borrower; provided, however, with respect to
Demonstrators, Used Motor Vehicles, Program Cars, and Rental Motor Vehicles, (w)
the aggregate amount of Floor Plan Loans outstanding at any time in connection
with Used Motor Vehicles may not exceed an amount equal to fifty-five percent
(55%) of the aggregate Book Value of all Used Motor Vehicles of the Floor Plan
Borrowers, as reflected in their current Manufacturer/Dealer Statement, (x) the
aggregate amount of Floor Plan Loans outstanding at any time in connection with
Used Motor Vehicles and Program Cars may not exceed Forty-Five Million Dollars
($65,000,000), (y) the aggregate amount of Floor Plan Loans outstanding at any
time in connection with Demonstrators may not exceed Twenty Million Dollars
($20,000,000) and (z) the aggregate amount of Floor Plan Loans outstanding at
any time in connection with Rental Motor Vehicles may not exceed Six Million
Dollars ($10,000,000).
THIRD AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
10
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"Floor Plan Agency Fee" has the meaning specified in Section 5.4(c).
"Floor Plan Borrowers" shall mean the Company and/or any Floor Plan
Subsidiaries.
"Floor Plan Indebtedness" means (without duplication) all Indebtedness
of the Borrowers secured by 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 Loan" has the meaning specified in Section 2.1.
"Floor Plan Loan Commitment" means for each Bank, its obligation to
make Floor Plan Loans to the Floor Plan Borrowers up to the amount set forth
opposite such Bank's name on Schedule I under the caption "Floor Plan Loan
Commitments" (as the same may be increased, permanently terminated, reduced or
increased from time to time pursuant to the applicable provisions of Sections
2.3(g)(iii), 3.4, 5.5 or 11.1 and as such amount may be increased or decreased
from time to time by assignment or assumption pursuant to Section 13.3(b)).
"Floor Plan Subsidiary" means any Subsidiary of the Company which has
granted a Lien to the Agent for the benefit of the Banks on its Property in the
manner required by the Loan Documents.
"Ford Borrower Liability Amount" means, at any time, an amount equal to
the lesser of (i) all Obligations owed to the Banks by the Company and/or any of
the Ford Borrowers or (ii) at any time of determination thereof, (w) an amount
equal to all Floor Plan Loans outstanding to ANY Ford Borrower, PLUS (x) an
amount equal to the greater of (A) $25,000,000 or (B) all cash consideration
paid by the Company or any of its Subsidiaries in connection with the
acquisition of the stock or other equity interest, or assets of any Auto Dealer
engaged in the sale of new Motor Vehicles manufactured by Ford Motor Company
PLUS (y) an amount equal to all reasonable costs and expenses associated with
the collection and enforcement of the obligations of any Ford Borrower arising
under the Loan Documents including attorneys fees PLUS (z) an amount equal to
all capital contributions and expenditures for capital or fixed assets, made by
the Company or any of its Subsidiaries on behalf of any Ford Borrower.
"Ford Borrower" means any Subsidiary of the Company engaged in the sale
of new Motor Vehicles manufactured by any division of the Ford Motor Company.
"Fronting Fees" has the meaning specified in Section 6.7(b).
"GM Borrower" means the Borrowers set forth in Schedule XV and any
other Subsidiary of the Company engaged in the sale of new Motor Vehicles
manufactured by any division of General Motors Corporation.
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"GM Borrower Guaranty" means the Form of Guaranty Agreement
substantially in the form of Exhibit L.
"GM Borrower Liability Amount" means, at any time, the sum of (y) an
amount equal to the Floor Plan Borrowings of all GM Borrowers and (z) all
reasonable costs and expenses associated with the collection and enforcement of
the obligations of any GM Borrower arising under the Loan Documents including
attorneys fees and expenses in connection with Floor Plan Loans of any GM
Borrower.
"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,
and any corporation or other entity owned or controlled, through stock or
capital ownership or otherwise, by any of the foregoing.
"Guaranties" 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,
any Indebtedness, dividend or other obligation of any other Person (the "primary
obligor") in any manner, whether directly or indirectly, including all
obligations incurred through an agreement, contingent or otherwise, by such
Person:
(a) to purchase such Indebtedness or obligation or any
property or assets constituting security therefor,
(b) to advance or supply funds (a) for the purchase or payment
of such Indebtedness or obligation, (b) to maintain working capital or other
balance sheet condition or otherwise to advance or make available 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 of the Company 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 the Indebtedness or the
obligation of the primary obligor against loss in respect thereof.
For the purposes of all computations made under this Agreement, a Guaranty in
respect of any Indebtedness for borrowed money shall be deemed to be
Indebtedness equal to the principal amount of such Indebtedness for borrowed
money which has been guaranteed, and a Guaranty in respect of
THIRD AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
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any other obligation or liability or any dividend shall be deemed to be
Indebtedness equal to the maximum aggregate amount of such obligation, liability
or dividend.
"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 with the Agent, any Bank, or any affiliate of the Agent, or
any Bank or any option with respect to any such transaction.
"Highest Lawful Rate" means, as to any Bank, the maximum nonusurious
rate of interest, if any, that at any time or from time to time may be
contracted for, taken, reserved, charged or received on the aggregate principal
amount of all Loans under the laws of the United States of America and/or the
laws of the State of Texas as may be applicable thereto that are presently in
effect or, to the extent allowed under such applicable law, which may hereafter
be in effect and which allow a higher maximum non-usurious interest rate than
applicable law now allows. To the extent, if any, that the maximum non-usurious
rate is determined with reference to the laws of the State of Texas, the Highest
Lawful Rate shall be the "weekly" rate ceiling as defined in Chapter 1D of
Subtitle 1 of Title 79, Texas Revised Civil Statutes (as amended) (the "Act"),
calculated on the basis of a 365/366 day year; provided, however, that to the
extent permitted by the Act, the Agent may at its election or at the request of
the Required Banks substitute for the "weekly" rate ceiling the "annual" or
"quarterly" ceiling, as those terms are defined in the Act, upon the giving of
notices provided for by the Act and effective upon the giving of such notices.
"Honor Date" has the meaning specified in Section 6.3(b).
"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 or
other similar debt instruments, and
(b) any obligation of such Person on account of deposits or
advances,
(c) all obligations of such Person under conditional sale or
other title retention agreements relating to property purchased by such Person,
(d) any obligation of such Person for the deferred purchase
price of any property or services, except accounts payable arising in the
ordinary course of such Person's business,
(e) rentals in respect of Capital Leases of such Person,
(f) Guaranties by such Person to the extent required pursuant
to the definition thereof,
(g) 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, and
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(h) any Indirect Indebtedness of such Person.
"Indemnitee" has the meaning specified in Section 13.4(b).
"Indirect Indebtedness" means preferred stock of a Person having a
mandatory redemption prior to the Maturity 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, marshalling 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.
"Interest Coverage Ratio" means for any period the quotient of (a)
Consolidated EBITDA for such period divided by (b) Interest Expense of the
Company for such period.
"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 Floor Plan Loans
(other than Swing Line Loans and Swing Line Overdraft Loans), the last day of
the Interest Period applicable to each such Loan (and, in addition, in the case
of any Interest Period more than 30 days' duration, the day that would have been
the Interest Payment Date of such Interest Period if such Interest Period had
been of one month or 30 days' duration), (b) with respect to Acquisition Loans
which are Eurodollar Loans, the last day of the Interest Period applicable to
each such Loan (and in addition, in the case of any Interest Period of six
months or 180 days' duration, the day that would have been the Interest Payment
Date of such Interest Period if such Interest Period had been of three months'
or 90 days' duration), (c) with respect to Alternate Base Rate Loans, on the
first Business Day of each January, April, July and October of each year,
commencing July 1, 1999 and with respect to Swing Line Loans, Swing Line
Overdraft Loans and Comerica Prime Rate Loans, on the fifth (5th) Business Day
of each month.
"Interest Period" means: with respect to:
(a) Floor Plan Loans and Swing Line Loans (i) as to any Eurodollar
Loan, 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) in the calendar month
that is fourteen (14) days or one month thereafter, as the Company may
elect, and (ii) as to any Comerica Prime Rate Loan, the period
commencing on the date of such
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Comerica Prime Rate Loan and ending on the date such Loan is repaid; or
converted into a Eurodollar Loan in accordance with the terms of
Section 5.15(b); provided, however, that (A) 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 unless,
with respect to Eurodollar Loans only, such next succeeding Business
Day would fall in the next calendar month, in which case such Interest
Period shall end on the next preceding Business Day, (B) no Interest
Period shall end later than the Maturity Date and (C) interest shall
accrue from and including the first day of an Interest Period to but
excluding the last day of such Interest Period; and
(b) Acquisition Loans (i) as to any Eurodollar Loan, 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) in the calendar month that is one,
two, three or six months thereafter, as the Company may elect and (ii)
as to any Alternate Base Rate Loan, a period commencing on the date of
such Loan and ending on the date such Loan is repaid or converted into
a Eurodollar Loan in accordance with the terms of Section 5.15(a);
provided, however, that (A) 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 unless, with respect to
Eurodollar Loans only, such next succeeding Business Day would fall in
the next calendar month, in which case such Interest Period shall end
on the next preceding Business Day, (B) no Interest Period shall end
later than the Maturity Date and (C) interest shall accrue from and
including the first day of an Interest Period to but excluding the last
day of such Interest Period.
"Inventory Detail Report" means a report delivered pursuant to Section
9.5(f) by the Company and the other Floor Plan Borrowers (on an individual and
consolidated basis) which breaks out in detail the new Motor Vehicles, Used
Motor Vehicles, Demonstrators, and Program Vehicles held by such Floor Plan
Borrower as reflected in its Manufacturer/Dealer Statements.
"Investment" means, as to any Person, any investment so classified
under generally accepted accounting principles made by stock purchase, capital
contribution, loan or advance or by purchase of property or otherwise, but in
any event shall include as an investment in any other Person the amount of all
Indebtedness owed by such other Person and all Accounts from such other Person
which are not current assets or did not arise from services rendered or sales to
such other Person in the ordinary course of business.
"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.
"Issuing Bank" means Chase Bank of Texas, N.A., formerly known as Texas
Commerce Bank National Association, 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.
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"Letter of Credit" means any letter of credit issued by the Issuing
Bank pursuant to Article VI.
"Letter of Credit Advance" means each Bank's participation in any
Letter of Credit Borrowing in accordance with its Pro Rata Share of Acquisition
Loan Commitments.
"Letter of Credit Application" and "Letter of Credit Amendment
Application" means an application form for Issuance of, and for amendment of,
Letters of Credit as shall at any time be in use at the Issuing Bank, as the
Issuing Bank shall request.
"Letter of Credit Borrowing" means an extension of credit resulting
from a drawing under any Letter of Credit which shall not have been reimbursed
on the date when made from proceeds of a Borrowing of Acquisition Loans under
Section 6.3(b).
"Letter of Credit Commitment" means the obligation of the Issuing Bank
to Issue, and the obligation of the Banks 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 Five Million Dollars
($5,000,000); provided that the Letter of Credit Commitment of each Bank is a
part of its Acquisition 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 Letter of Credit Borrowings.
"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 for documents for Letter of Credit Issuances.
"Letter of Credit Termination Date" has the meaning provided in Section
6.1(a).
"Leverage Ratio" means as of any date of determination, for the
Company, the quotient of (a) Adjusted Indebtedness as of such date divided by
(b) (y) Consolidated Pro Forma EBITDA as of such date, minus (z) Pro Forma Floor
Plan Interest Expense of the Company and its Subsidiaries, determined on a
consolidated basis and after having given effect to any proposed Acquisition, as
of such date.
"LIBO Rate" means with respect to a Borrowing the rate (rounded to the
nearest one-sixteenth (1/16) of one percent (1%) or, if there is no nearest
one-sixteenth (1/16) of one percent (1%), the next higher one-sixteenth (1/16)
of one percent (1%) at which dollar deposits
THIRD AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
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approximately equal in principal amount of such Borrowing and for a maturity
equal to the applicable Interest Period are offered in immediately available
funds to the principal office of the Agent in London, England (or if the Agent
does not at the time any such determination is made, maintain an office in
London, England, the principal office of any Affiliate of the Agent in London,
England) by leading banks in the London interbank market for Eurodollars at
approximately 11:00 A.M., LONDON, ENGLAND TIME, two Business Days prior to the
commencement of such Interest Period.
"Lien" means any mortgage, pledge, hypothecation, judgment lien or
similar legal process, title retention lien, or other lien or security interest,
including the interest of a vendor under any conditional sale or other title
retention agreement and the interest of a lessor under any Capital Lease.
"Loan" means an Alternate Base Rate Loan, a Comerica Prime Rate Loan, a
Eurodollar Loan, an Acquisition Loan, a Floor Plan Loan, a Swing Line Loan, or a
Swing Line Overdraft 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 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 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
monthly basis.
"Manufacturer's Certificate" means any Manufacturer's Statement of
Origin, Manufacturer's Certificate, MSO, Certificate of Origin or any other
document evidencing the ownership or transfer of ownership of a new Motor
Vehicle from a Manufacturer to any Borrower.
"Margin Stock" has the meaning specified in Regulation U.
"Material Adverse Effect" means, relative to any occurrence of whatever
nature (including any adverse determination in any litigation, arbitration or
governmental investigation or proceeding), (i) a material adverse effect on the
financial condition, business, operations, assets or prospects of the Company
and its Subsidiaries, on a consolidated basis, (ii) a material impairment of the
ability of the Company and its Subsidiaries on a consolidated basis or the Floor
Plan Subsidiaries as a group, 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 December 31, 2001, or the earlier termination of
the Commitments under Sections 5.5 and 11.1 unless extended pursuant to Section
5.16.
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"Maximum Permissible Rate" has the meaning specified in Section 13.8.
"Motor Vehicle" means an automobile, truck, van or any other motor
vehicle, including, without limitation, new Motor Vehicles, Used Motor Vehicles,
Program Cars, Fleet Motor Vehicles, Rental Motor Vehicles and Demonstrators.
"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
generally accepted accounting principles 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 Subsidiary) 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 is non-recurring, extraordinary or
attributable to discontinued operations, (v) income resulting from the write-up
of any assets, and (vi) any portion of the net income of any Subsidiaries which
is not available for distribution.
"Non-Recourse Real Estate Debt" means Indebtedness of a Subsidiary of
the Company existing as of the Closing Date and described in Schedule XII or
incurred in connection with an Acquisition, provided that such Indebtedness is
non-recourse to such Borrower and secured solely by real estate of such Borrower
used in the day-to-day operations of its business.
"Note" and "Notes" mean each of the Promissory Notes substantially in
the form of Exhibit C-1 duly executed by all of the Borrowers each payable and
delivered to each of the respective Banks in the aggregate principal face amount
of the respective Bank's Commitment.
"Obligations" means all advances, debts, liabilities, obligations,
covenants and duties, arising under any Loan Document or arising under any
Hedging Agreement owing by any Borrower to any Bank, 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).
THIRD AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
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"Out of Balance" means (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 and (ii) with respect to a
Floor Plan Loan, the outstanding balance thereof has not been paid in accordance
with the terms of this Agreement; provided, however, that so long as the
outstanding balance of (y) Cash Receipted Motor Vehicles shall have been
received within five (5) days of the sale thereof and (z) Sale Dated Motor
Vehicles shall have been received within ten (10) days of the sale thereof, such
Loans shall not be considered Out of Balance.
"Out of Balance Amount" has the meaning specified in Section 9.12(b).
"PBGC" means the Pension Benefit Guaranty Corporation and any entity
succeeding to any or all of its functions under ERISA.
"Performance Letter of Credit" has the meaning specified in Section
6.2.
"Permitted Acquisition" means (a) an Acquisition by the Company
pursuant to which (i) the total consideration (exclusive of stock or other
equity consideration) is less than or equal to Twenty Million Dollars
($20,000,000) and (ii) not less than one hundred percent (100%) of the capital
stock or other evidence of equity ownership (other than director qualifying
shares) of the target entity is acquired, and that satisfies all the
requirements for a Permitted Acquisition set forth in Section
9.16(a)(i)(ii)(v)(viii)(ix) and Section 9.16(b); or (b) an Acquisition by the
Company pursuant to which (i) the total consideration (exclusive of stock or
other equity consideration) is greater than Twenty Million Dollars
($20,000,000), and (ii) not less than one hundred percent (100%) of the capital
stock or other evidence of equity ownership (other than director qualifying
shares) of the target entity is acquired, and that satisfies all the
requirements for a Permitted Acquisition set forth in Section 9.16(a) and
Section 9.16(b).
"Permitted Acquisition Notice" has the meaning specified in Section
9.16(a)(ii).
"Permitted Liens" means those Liens described in Section 10.2.
"Person" means any natural person, corporation, business trust,
association, company, limited liability company, joint venture, partnership or
government or any agency or political subdivision thereof.
"Phase 1 Borrower" means a Borrower which as of the Closing Date has
granted to the Agent for the benefit of the Banks, a Lien on any of its real
property including any leasehold estate as security for the Obligations.
"Plan" means a "pension plan," as such term is defined in 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.
THIRD AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
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"Prime Rate" has the meaning specified in the definition of the term
"Alternate Base Rate."
"Pro Forma EBITDA" means, for any Person, as of any date of
determination, based upon the immediately preceding four fiscal quarters, for
any period for which the amount thereof is to be determined, EBITDA of such
Person plus (or minus), without duplication, the EBITDA for such four quarter
period of any Person acquired during such period.
"Pro Forma Floor Plan Interest Expense" means, for any Person, as of
any date of determination, based upon the immediately preceding four fiscal
quarters of such Person, Floor Plan Interest Expense of such Person plus (or
minus), without duplication, the Floor Plan Interest Expense for such period of
any Person acquired during such period.
"Pro Forma Interest Expense" means Pro Forma Floor Plan Interest
Expense plus pro forma Interest Expense of other permitted Indebtedness of the
Borrowers.
"Pro Rata Share of Acquisition Loan Commitments" means, at any time,
with respect to any Bank, the percentage corresponding to the fraction, the
numerator of which shall be the amount of the Acquisition Loan Commitment of
such Bank and the denominator of which shall be the aggregate amount of the
Acquisition Loan Commitments of all of the Banks.
"Pro Rata Share of Floor Plan Loan Commitments" means, at any time,
with respect to any Bank, the percentage corresponding to the fraction, the
numerator of which shall be the amount of the Floor plan Loan Commitment of such
Bank and the denominator of which shall be the aggregate amount of the Floor
Plan Loan Commitments of all the Banks.
"Pro Rata Share of Total Commitments" means, at any time, with respect
to any Bank, the percentage corresponding to the fraction, the numerator of
which is such Bank's Commitment and the denominator of which shall be the
aggregate amount of the Commitments of all the Banks.
"Program Car" means a Motor Vehicle in the current or immediately
preceding model year in readily saleable condition, previously used by a car
rental company as a part of its rental fleet or previously driven by an
executive of a Manufacturer before being offered for sale to the Company or any
other Floor Plan Borrower at a Manufacturer sponsored auction.
"Qualified Sale/Lease back Transaction" means the sale by any of the
Borrowers of real property and related fixtures and accessories thereto used in
ordinary course of business, 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 of any of the provisions of Sections 10.14, 10.15, 10.16 or 10.17 or
any other provision of this Agreement.
"Qualifying Ford Subsidiary" means a Ford Borrower (i) which is a Floor
Plan Subsidiary, (ii) which has granted a general Lien and security interest in
favor of the Agent for the benefit of the
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Banks in substantially all of the Property subject only to Permitted Liens,
(iii) which is a co-maker of the Notes with joint and several liability with all
other Ford Borrowers for all the Obligations to the extent of the Ford Borrower
Liability Amount, except as limited by Section 13.13 of this Agreement, (iv)
which has no Indebtedness except as permitted pursuant to Sections 10.1(a), (f),
(g), (l) and (m), and (v) which is in all other respects in compliance with the
terms of this Agreement.
"Qualifying Subsidiary" means a wholly-owned (other than director
qualifying shares) Subsidiary of the Company (i) which is a Floor Plan
Subsidiary, (ii) which has granted a general Lien and security interest in favor
of the Agent for the benefit of the Banks on substantially all of its Property,
subject only to Permitted Liens, (iii) which is a co-maker of the Notes with
joint and several liability with all other Borrowers for all the Obligations
except as limited by Section 13.13 of this Agreement, (iv) which has no
Indebtedness except as permitted pursuant to Section 10.1(a), (f), (g) (l) and
(m), and (v) which is in all other respects in compliance with the terms of this
Agreement.
"Quoted Rate" shall mean the lesser of (i) rate of interest per annum
offered by Swing Line Bank in its sole discretion with respect to a Swing Line
Loan or a Swing Line Overdraft Loan, such rate to be derived from the LIBO Rate
(or other cost of funds, as selected by Swing Line Bank) on the applicable date
of determination, plus 1.5% and (ii) the Highest Lawful Rate.
"Refunded Swing Line Loans" has the meaning specified in Section
4.5(a).
"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.
"Reportable Event" means a Reportable Event as defined in Section
4043(b) of ERISA.
"Rental Motor Vehicle" means a Motor Vehicle owned by a Floor Plan
Subsidiary and purchased directly from a Manufacturer as a new Motor Vehicle
which is less than two years old and which is used as a service loaner vehicle
or is periodically subject to a rental contract with customers of the Floor Plan
Subsidiary for loaner or rental periods of up to thirty (30) consecutive days.
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"Request for Borrowing" means, in connection with a Floor Plan Loan, a
Swing Line Loan, or a Swing Line Overdraft Loan, a Request for Borrowing
substantially in the form attached hereto as Exhibit E-1, and in the case of an
Acquisition Loan, a Request for Borrowing substantially in the form attached
hereto as Exhibit E-2.
"Required Banks" means, at any time, Banks holding 66-2/3% of the
aggregate principal amount of the Loans and the Letter of Credit Obligations at
the time outstanding, as of the immediately preceded Floor Plan Adjustment Date
provided that, for purposes of determining Required Banks hereunder, Swing Line
Loans shall be allocated among the Banks based upon their respective Pro Rata
Share of the Floor Plan Loan Commitments, or if no such principal amount is
outstanding, Banks having in the aggregate a Pro Rata Share of the Total
Commitments equal to sixty-six and two-thirds percent (66-2/3%) of the Total
Commitment.
"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 the Person or
any of its property or to which the 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.
"Retail Loan Guarantees" means any Guaranty by the Company or any of
its Subsidiaries in favor of any Person of retail installment contracts or other
retail payment obligations in respect of Motor Vehicles sold to a customer.
"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.
"Security Agreement" means a Security Agreement substantially in the
form of Exhibit F attached hereto, executed by each of the Borrowers in favor of
the Agent for the benefit of the Banks covering all assets of the Borrowers
described therein.
"Security Documents" means this Agreement, the Escrow and Security
Agreement, the Security Agreements, the agreements or instruments described or
referred to in Section 8.1(b) and any and all other agreements or instruments
now or hereafter executed and delivered by any
THIRD AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
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Borrower or any other Person in connection with, or as security for, the
payments or performance of any of the Obligations.
"Stockholders' Equity" means the consolidated stockholders' equity of
the Company and its Subsidiaries after eliminating all intercompany items and
after deducting from stockholders' equity such portion thereof as is properly
attributable to minority interests in such Subsidiaries.
"Subordinated Indebtedness" means (i) Indebtedness of any Borrower
having maturities and terms, and which is subordinated to payment of the Notes,
and approved in writing by the Agent and the Required Banks which in the
aggregate, is less than twenty percent (20%) of Stockholders' Equity and (ii)
unsecured subordinated Indebtedness of the Company (which may be guaranteed by
the Subsidiaries of the Company on an unsecured basis) provided that such
Indebtedness (x) is subordinated to payment of the Notes as approved in writing
by the Agent, (y) does not have a maturity before the Maturity Date, and (z) has
terms that are no more restrictive than the terms of the Loan Documents and
further provided that, after giving effect to the issuance of such Indebtedness,
no Default or Event of Default shall have occurred or be continuing or would
occur as a result thereof.
"Subsidiary" means any Person of which or in which any other Person
(the "Parent") and the other Subsidiaries of the Parent own directly or
indirectly fifty percent (50%) or more of:
(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.
The term Subsidiary (or Subsidiaries), as used in the introduction to
this Agreement, means a Subsidiary (or the Subsidiaries) of the Company.
"Swing Line Bank" means Comerica Bank and its successors and assignees
as provided in this Agreement.
"Swing Line Commitment" means, for the Swing Line Bank, its obligation
to make Swing Line Loans to the Floor Plan Borrowers up to the amount equal to
the greater of (i) $50,000,000, or (ii) in the sole determination of the Swing
Line Bank after five (5) Business Days' notice to the Agent, from time to time
an amount equal to $75,000,000, or such lesser amount (not less than
$50,000,000) as the Floor Plan Agent shall determine in its sole discretion;
provided that, subject
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to the provisions of Article IV, the Swing Line Commitment is a part of the
Floor Plan Loan Commitment rather than a separate, independent commitment.
"Swing Line Loan" has the meaning specified in Section 4.1.
"Swing Line Minimum Amount" means the amount of Swing Line Loans which
in the mutual determination of the Borrowers and the Floor Plan Agent shall
remain outstanding as of each Floor Plan Adjustment Date, which amount may
change from time to time as the Borrowers and the Floor Plan Agent shall
mutually agree; provided, however, the Swing Line Minimum Amount shall in any
event not be in excess of Ten Million Dollars ($10,000,000).
"Swing Line Note" means the Swing Line Note substantially in the form
of Exhibit C-2, duly executed by all of the Floor Plan Borrowers and payable to
and delivered to the Swing Line Bank, in the principal face amount of the Swing
Line Commitment.
"Swing Line Overdraft Borrowing Request" has the meaning specified in
Section 2.3(g)(iii).
"Swing Line Overdraft Loan" has the meaning specified in Section
2.3(g)(iii).
"Taxes" has the meaning specified in Section 5.14(a).
"Total Commitments" means, at any time, the aggregate amount of the
Commitments of all the Banks, as in effect at such time.
"Total Leverage Ratio" means as of any date of determination, for the
Company, the quotient of (a) Adjusted Total Indebtedness as of such date divided
by (b) (y) Consolidated Pro Forma EBITDA as of such date, minus (z) Pro Forma
Floor Plan Interest Expense of the Company and its Subsidiaries, determined on a
consolidated basis and after having given effect to any proposed Acquisition, as
of such date.
"Transferee" has the meaning specified in Section 5.14(a).
"Type" means any type of Loan determined with respect to the interest
option applicable thereto, i.e., a Eurodollar Loan, an Alternate Base Rate Loan
or Comerica Prime Rate Loan.
"UCC" means the Uniform Commercial Code as adopted and in effect in the
State of Texas from time to time.
"Used Motor Vehicle" means a Motor Vehicle in the current or any of the
four preceding model years which is in readily saleable condition.
"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:
THIRD AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
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(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.
"Working Capital" means, as of any date of determination, the
difference between (i) the current assets of the Company and its Subsidiaries
determined on a consolidated basis plus the unused, available portion (as
determined in accordance with Section 9.16) of the Acquisition Loan Commitments
MINUS (ii) current liabilities of the Company and its Subsidiaries determined on
a consolidated basis plus the outstanding balance of all Floor Plan Loans.
SECTION 1.2 Accounting Terms. Except as otherwise herein specifically
provided, each accounting term used herein shall have the meaning given it under
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 and applied on a consistent basis.
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 each 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 individually, provided that
nothing in this clause (iv) is intended to authorize any
assignment not otherwise permitted by this Agreement;
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<PAGE> 27
(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 Bank severally and not jointly agrees, on the terms and
conditions set forth herein, to make revolving credit loans (each such loan, a
"Floor Plan Loan") to any Floor Plan Borrower 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 outstanding such Bank's Floor Plan Loan
Commitment; provided, however, that after giving effect to all Floor Plan Loans
and Swing Line Loans requested on any date, the aggregate principal amount of
all outstanding Floor Plan Loans, all outstanding Swing Line Loans, all
outstanding Acquisition Loans, and all outstanding Letter of Credit Obligations
shall not at any time exceed the Total Commitment and subject to the other terms
and conditions hereof, any Floor Plan Borrower may borrow, prepay and reborrow
Floor Plan Loans under this Section 2.1.
SECTION 2.2 Floor Plan Loans.
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(a) Each Floor Plan Loan Borrowing made to any of the Floor
Plan Borrowers by the Banks on the Closing Date or on any Floor Plan Adjustment
Date shall be in the minimum aggregate principal amount of One Million Dollars
($1,000,000) and in integral multiples of One Million Dollars ($1,000,000);
provided that a Comerica Prime Rate Loan or a Floor Plan Loan resulting from a
Draft may be in any amount and shall consist of Floor Plan Loans of the same
Type made ratably by the Banks in accordance with their respective Pro Rata
Share of Floor Plan Loan Commitments; provided, however, that the failure of any
Bank to make any Floor Plan Loan shall not relieve any other Bank of its
obligation to lend hereunder.
(b) Each Floor Plan Loan Borrowing shall be a Comerica Prime
Rate Borrowing or a Eurodollar Borrowing as any of the Floor Plan Borrowers may
request pursuant to Section 2.3. Each Bank may fulfill its obligation to make
Floor Plan Loans with respect to any Eurodollar Loan by causing, at its option,
any domestic or foreign branch or Affiliate of such Bank to make such Loan,
provided that 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.
(c) Not later than 10:00 A.M., HOUSTON, TEXAS TIME on the
Closing Date any one or more of the Floor Plan Borrowers shall deliver a Request
for Borrowing to the Floor Plan Agent. Not later than 11:00 A.M. HOUSTON, TEXAS
TIME of the same day, the Floor Plan Agent shall notify the Agent of the Type of
Borrowing requested and the aggregate amount of Floor Plan Loans being requested
by the Floor Plan Borrowers as of the Closing Date, less an amount equal to the
initial Swing Line Loan Minimum Amount. Upon receipt of such notice, the Agent
shall notify each Bank of the contents thereof and the amount of the Floor Plan
Loan required to be advanced by such Bank.
(d) Each Bank shall, upon request from the Agent, from time to
time as herein provided, advance the amount 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 the same day not later than 3:00 P.M., HOUSTON,
TEXAS TIME, and, subject to satisfaction of the conditions set forth in Article
VIII, 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 Banks. 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 Borrower.
(e) Unless the Agent shall have received notice from a Bank
prior to the date of any such Floor Plan Loan Borrowing that such Bank will not
make available to the Agent such Bank's portion of such Borrowing, the Agent may
assume that such Bank has made such portion available to the Agent on the date
of such Floor Plan Loan Borrowing in accordance with this
THIRD AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
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<PAGE> 29
Section 2.2(e) and the Agent may, in reliance upon such assumption, make
available to the Floor Plan Agent on such date a corresponding amount. If, and
to the extent that such Bank shall not have made such portion available to the
Agent, such Bank and the applicable Floor Plan Borrowers severally agree to
repay 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 Floor Plan Agent until the date such amount is repaid to the Agent (i) in
the case of the Floor Plan Borrowers, at the Applicable Interest Rate at the
time to the Loans comprising such Borrowing and (ii) in the case of such Bank,
at the Federal Funds Effective Rate. If such Bank shall repay to the Agent such
corresponding amount, such amount shall constitute such Bank's Loan as part of
such Borrowing for purposes of this Agreement.
(f) A Floor Plan Subsidiary shall not be entitled to request a
Floor Plan Borrowing hereunder until it (i) has executed and delivered to the
Banks, as aforesaid, the Notes, and to the Swing Line Bank, a Swing Line Note,
(ii) has become a party to this Agreement by execution and delivery of an
Addendum, and (iii) has become a party to the Security Documents, accompanied in
each case by authority documents, legal opinions and other supporting documents
as required by Agent, Floor Plan Agent and the Required Banks hereunder and has
otherwise complied with the provisions of Section 9.15.
SECTION 2.3 Floor Plan Borrowing Procedure. Any Floor Plan Borrower may
request a Floor Plan Loan, (i) subject to Sections 2.8 through 2.12, inclusive,
in the case of a Draft by a Manufacturer, if such Draft is delivered in
accordance with the express terms of a Drafting Agreement and (ii) in the case
of Floor Plan Loans requested directly by a Floor Plan Borrower, only after
delivery to the Floor Plan Agent of a written Request for Borrowing executed by
a Person authorized by such Floor Plan Borrower to make such requests on behalf
of such Floor Plan Borrower. Floor Plan Loan Borrowings are subject to the
following and to the remaining provisions hereof:
(a) each such Request for Borrowing shall set forth the
following information:
(i) the proposed date of such Borrowing, which must
be a Business Day;
(ii) the aggregate amount of such requested
Borrowing;
(iii) whether such Floor Plan Borrowing is to be
a Comerica Prime Rate Loan or a Eurodollar Loan, or in the
case of a Swing Line Loan, a Loan at the Quoted Rate
(provided, however, that all Drafts shall be deemed to be
requested at the Quoted Rate) and the Interest Period
applicable thereto;
(iv) a description of the Motor Vehicle(s)
purchased or to be purchased with the proceeds of such
Borrowing, including for each Motor Vehicle, its vehicle
identification number, make, model and purchase price, and
whether such Motor
THIRD AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
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<PAGE> 30
Vehicle is a new Motor Vehicle, Used Motor Vehicle, Program
Car or Demonstrator; and
(v) if requested by the Floor Plan Agent, in the
case of a Request for Borrowing requested directly by a Floor
Plan Borrower to fund the purchase of Used Motor Vehicles,
such Borrower shall deliver a current Manufacturer/Dealer
Statement with appropriate inventory breakout as required by
the Floor Plan Agent with the first such Request for Borrowing
in any month.
(b) each such Request for Borrowing shall be delivered to the
Floor Plan Agent (i) in the case of a Draft by a Manufacturer, by 11:00 A.M.,
HOUSTON, TEXAS TIME one (1) Business Day prior to the Borrowing Date of a
proposed Borrowing, (ii) in the case of a Eurodollar Borrowing, not later than
10:00 A.M., HOUSTON, TEXAS TIME, three (3) Days prior to the Borrowing Date of a
proposed Borrowing, and (iii) in the case of a Comerica Prime Rate Borrowing,
not later than 11:00 A.M., HOUSTON, TEXAS TIME on the Borrowing Date of a
proposed Borrowing.
(c) the aggregate principal amount of such Borrowing shall not
exceed the aggregate Floor Plan Advance Limit for the Motor Vehicles described
in such Request for Borrowing;
(d) subject to Section 2.3(g) hereof, the aggregate principal
amount of such requested Borrowing, plus the principal amount of all Floor Plan
Loans then outstanding plus the aggregate principal amount of all Swing Line
Loans then outstanding shall not exceed the Floor Plan Loan Commitment;
(e) the aggregate principal amount of such requested
Borrowing, plus the principal amount of all Floor Plan Loans then outstanding
hereunder plus the aggregate principal amount of all Swing Line Loans (but minus
the amount of any Swing Line Loans to be refunded with the proceeds of such
Borrowing) then outstanding plus the aggregate principal amount of all
Acquisition Loans then outstanding plus all outstanding Letter of Credit
Obligations shall not exceed the Total Commitment;
(f) each Request for Borrowing shall be irrevocable and shall
constitute a certification as to itself by the applicable Floor Plan Borrower as
of the date thereof that:
(i) both before and after such Borrowing, the
obligations of the Company and its Subsidiaries under this
Agreement and the other Loan Documents to which it is a party,
as applicable, are valid, binding, and enforceable obligations
of such Person;
(ii) to the best knowledge of the Company and the
applicable Borrower, all conditions to such Borrowing have
been satisfied;
THIRD AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
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(iii) there is no Default or Event of Default in
existence, and none will exist upon the making of such Floor
Plan Loan;
(iv) the representations and warranties contained
in this Agreement and the other Loan Documents are true and
correct in all material respects and shall be true and correct
in all material aspects as of and immediately after the making
of such Floor Plan Loan; and
(v) such Borrowing will not violate the material
terms and conditions of any material contract, agreement or
other Borrowing of the Company and such applicable Borrower,
or any of its Subsidiaries.
(g) Notwithstanding the foregoing,
(i) if the Floor Plan Agent has, at the request
of the Required Banks 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 subject to the
terms of any such Drafting Agreements, the Floor Plan Agent
shall not fund the amount of such Draft; and
(ii) if on any day the requirements set forth in
Section 2.3(f) have been satisfied and the aggregate principal
amount of a Request for Borrowing of a Floor Plan Loan, plus
(A) the aggregate principal amount of all other Floor Plan
Loans then outstanding plus (B) the aggregate principal amount
of all Swing Line Loans (but minus the amount of any Swing
Line Loans to be refunded with the proceeds of such Borrowing)
then outstanding exceeds the aggregate principal amount of
such Loans outstanding as of the immediately preceding Floor
Plan Adjustment Date and is less than the Swing Line
Commitment, then such Request for Borrowing shall be deemed
for all purposes a Request for Borrowing of a Swing Line Loan
and the Borrowing to be disbursed in connection therewith
shall constitute a Swing Line Loan, and shall be disbursed in
accordance with the provisions of Article IV hereof; and
(iii) if on any day the requirements set forth in
Section 2.3(f) have been satisfied and the aggregate principal
amount of a Request for Borrowing of a Floor Plan Loan
consists of a Draft, 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
Swing Line Loans (but minus the amount of any Swing Line Loan
to be refunded with the proceeds of such Borrowing) 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 Floor Plan Loan Commitment, as of such
day, and the Company fails to either immediately reduce
THIRD AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
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<PAGE> 32
any pending Request for a Borrowing 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 such Floor Plan Loan Commitment,
then, in such event:
(1) the Company may request an
increase in the Floor Plan Loan Commitment
pursuant to Section 5.5(b), and such Request
for Borrowing shall be funded to the extent
of the increased Floor Plan Loan Commitment
(if any), or
(2) if the Company does not elect to
act under clause (1) above and if pursuant
to Section 3.4 there is a Reserve Commitment
available, then the Floor Plan Loan
Commitment shall be deemed to be irrevocably
increased by the amount of such Reserve
Commitment, and the Request for Borrowings
of Floor Plan Loans shall be funded to the
extent of the Floor Plan Loan Commitment as
increased by the Reserve Commitment, or
(3) if there is no Reserve
Commitment available, such Request for
Borrowing shall be deemed for all purposes a
Swing Line Overdraft Loan Borrowing Request
(each a "Swing Line Overdraft Borrowing
Request") and such Borrowing shall
constitute a Swing Line Overdraft Loan
(each, a "Swing Line Overdraft Loan") to be
disbursed and subject to the provisions of
Section 4.6.
(h) The Floor Plan Agent, acting on behalf of the Banks, may,
at its option make Loans under this Article II upon the irrevocable telephone
request of a duly authorized officer of any Floor Plan Borrower and, in the
event the Floor Plan Agent, acting on behalf of the Banks, makes any such Loan
upon a telephone request, the requesting officer of such Floor Plan Borrower
shall, if so requested by the Floor Plan Agent, deliver (including via fax) to
the Floor Plan Agent, on the same day as such telephone request, a written
Request for Borrowing. Each of the Floor Plan Borrowers hereby authorizes the
Floor Plan Agent to disburse Floor Plan Loans under this Section 2.3 pursuant to
the telephone 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 telephone request. Each Request for
Floor Plan Loan Borrowing made via telephone as hereunder provided shall
constitute a certification of the matters set forth in Section 2.3(f) of this
Agreement.
(i) If at any time during an Adjustment Period the payment of
all of a Swing Line Loan would cause the outstanding balance of all Swing Line
Loans to be fully repaid, the Company may elect to cause such funds to be
invested in overnight funds or other securities held
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by Comerica Securities, Inc. and acceptable to the Floor Plan Agent and the
Banks, which investments shall be subject to the first priority security
interest of the Floor Plan Agent for the benefit of the Banks to secure the
outstanding balance of the Obligations. The Floor Plan Agent and any of the
Floor Plan Borrowers may enter into an agreement from time to time to facilitate
the investment of such funds.
SECTION 2.4 Notice of Types of Floor Plan Loans and Interest Periods.
(a) On or before 10:00 A.M. HOUSTON, TEXAS TIME, three (3)
Business Days prior to each Floor Plan Adjustment Date, the Company shall
provide written (including via fax) Request for Borrowing to the Floor Plan
Agent designating the Type of Floor Plan Loans which will be outstanding
commencing on the Floor Plan Adjustment Date immediately following such notice
until the next succeeding Floor Plan Adjustment Date. If, for any reason, the
Company does not deliver the Request for Borrowing as herein provided,
including, without limitation providing for three (3) Business Days' notice, the
Company shall be deemed to have delivered the Request for Borrowing and
requested that on the Floor Plan Adjustment Date all Floor Plan Loans be
Comerica Prime Rate Borrowings.
(b) On or before 11:00 A.M. HOUSTON, TEXAS TIME on each Floor
Plan Adjustment Date, the Floor Plan Agent shall provide written (including via
fax) notice to the Agent of the amount of (i) Floor Plan Loans outstanding, plus
(ii) Swing Line Loans (plus Swing Line Overdraft Loans, if any) outstanding in
excess of the Swing Line Minimum Amount (if any), plus (iii) the amount of Floor
Plan Loans being requested pursuant to any Request for Borrowing of Floor Plan
Loans, as of 10:00 A.M., HOUSTON, TEXAS TIME on such date. Upon receipt of such
notice, the Agent shall provide prompt written (including via fax) notice to the
Banks advising them (A) that the amount of Floor Plan Loans required pursuant to
(i), (ii) and (iii) above is greater than the amount required as of the
immediately preceding Floor Plan Adjustment Date and, with respect to each Bank,
the amount of additional Floor Plan Loans to be advanced by such Bank, (B) that
the amount of Floor Plan Loans required pursuant to (i), (ii) and (iii) above,
has decreased since the immediately preceding Floor Plan Adjustment Date and,
with respect to each Bank, the amount of such repayment to be made to such Bank,
or (C) that there is no change in the amount of Floor Plan Loans required
pursuant to (i), (ii) and (iii) above since the immediately preceding Floor Plan
Adjustment Date. Such notice shall also advise the Banks of the Type of Floor
Plan Loans the Floor Plan Borrowers have selected for the period of time from
the next Floor Plan Adjustment Date to the next succeeding Floor Plan Adjustment
Date.
(c) On each Floor Plan Adjustment Date (i) if Swing Line Loans
(plus Swing Line Overdraft Loans, if any) outstanding are greater than the Swing
Line Minimum Amount, the Swing Line Overdraft Loans shall be repaid and the
Swing Line Loans shall be reduced to the Swing Line Minimum Amount with proceeds
advanced by the Banks pursuant to notices from the Floor Plan Agent given to the
Agent as provided in Section 2.2(e) hereof; in such event the Agent shall remit
the proceeds of such Floor Plan Loans to the Floor Plan Agent for application to
the Swing Line Loans (and to the Swing Line Overdraft Loans, if any) outstanding
in excess of the Swing Line Minimum Amount, or (ii) if Swing Line Loans are less
than the Swing Line Minimum Amount, the
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Swing Line Bank shall make a Swing Line Loan to the Floor Plan Borrowers in an
amount required to cause the total amount of Swing Line Loans outstanding to
equal the Swing Line Minimum Amount; in such event the Floor Plan Agent shall
remit the proceeds of such Swing Line Loan to the Agent, and the Agent shall
promptly remit such proceeds to the Banks.
SECTION 2.5 Payments.
(a) Subject to the provisions of Section 2.3(i), each Floor
Plan Borrower shall, on the Curtailment Date of a Motor Vehicle, pay in full the
Floor Plan Advance Limit with respect to such Motor Vehicle.
(b) Subject to the provisions of Section 2.3(i), upon the sale
of any Motor Vehicle by a Floor Plan Borrower, such Floor Plan Borrower shall
pay in full the Floor Plan Advance Limit with respect to such Motor Vehicle (i)
with respect to Cash Receipted Motor Vehicles, immediately upon receipt of
payment, (ii) with respect to Sale Dated Motor Vehicles, within ten (10) days of
the date of such Motor Vehicle was sold and (iii) with respect to Fleet Motor
Vehicles, within thirty (30) days of the date of sale.
(c) Subject to the provisions of Section 2.3(i) and Section
4.6(c), payments required to be made by any Floor Plan Borrower as set forth in
Sections 2.5(a) and 2.5(b) shall be applied first to the outstanding principal
balance of Swing Line Overdraft Loans, next to the outstanding principal balance
of Swing Line Loans and then, only if no Swing Line Overdraft Loans or Swing
Line Loans are then outstanding, to the outstanding principal balance of Floor
Plan Loans.
(d) Each Floor Plan Borrower shall cause all proceeds from the
sale of Motor Vehicles to be deposited directly into an account of the
applicable Borrower with its local financial institution which proceeds shall be
transferred to the Excess/Payments in Process for payment of the Loans as
provided in Section 2.5(b).
(e) An amount equal to two percent (2%) of the original
principal amount of Floor Plan Loans (or any portion thereof) attributable to
each Rental Motor Vehicle shall be payable on the fifteenth (15th) day of each
month after the date such Motor Vehicle is Deemed Floored.
SECTION 2.6 Title Documents. All original Manufacturer's invoices and
title documents evidencing the Floor Plan Borrowers' ownership of all of their
Motor Vehicles, including, without limitation, the Manufacturer's Certificate,
shall be maintained in safekeeping by the Floor Plan Borrowers in a manner
acceptable to the Floor Plan Agent, unless and until an Event of Default has
occurred and is continuing, within three (3) Business Days of the request by the
Floor Plan Agent, the Floor Plan Borrowers shall deliver or cause to be
delivered all such original Manufacturer's invoices and title documents whether
at the time of such request or thereafter, to the Floor Plan Agent and the Floor
Plan Agent shall retain or hold all such original Manufacturer's invoices and
title documents received by the Floor Plan Agent after such request. Thereafter,
for so long as such Event of Default shall be continuing, all original
Manufacturer's Certificates and title
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documents shall remain in the Floor Plan Agent's possession until the Floor Plan
Loan Borrowing in connection therewith or such ratable portion thereof in
respect of a Motor Vehicle sold by any Floor Plan Borrower in the ordinary
course of business has been paid and performed in full; provided that, upon the
happening of an Event of Default and during the continuance thereof, the Floor
Plan Agent may transfer, as applicable, title documents delivered to it pursuant
to this Section 2.6 in connection with the sale of Motor Vehicles in accordance
with its rights provided for in this Agreement or the other Loan Documents.
SECTION 2.7 Power of Attorney. For the purpose of expediting the
financing of Motor Vehicles under the terms of this Agreement and for other
purposes relating to such financing transaction, each of the Floor Plan
Borrowers irrevocably constitutes and appoints the Floor Plan Agent and any of
its officers, and each of them, severally, as its true and lawful
attorneys-in-fact or attorney-in-fact with full authority to act on behalf of,
and in the name of, place, and stead of, each such Floor Plan Borrower,
regardless of whether or not an Event of Default shall have occurred hereunder,
to prepare, execute, and deliver any and all instruments, documents, and
agreements required to be executed and delivered by each such Floor Plan
Borrower necessary to evidence Floor Plan Loan Borrowings (and if outstanding,
Swing Line Overdraft Loans) hereunder and/or after the occurrence and during the
continuance of an Event of Default, to evidence, perfect, or realize upon the
security interest granted by this Agreement, and/or any of the Loan Documents,
including, without limitation, the Notes, requests for advances, security
agreements, financing statements, other instruments for the payment of money,
receipts, manufacturer's certificates of origin, certificates of origin,
certificates of title, applications for certificates of title, other basic
evidences of ownership, dealer reassignments of any of the foregoing,
affidavits, and acknowledgments. The foregoing power of attorney shall be
coupled with an interest, and shall be irrevocable so long as this Agreement
remains in effect, any Drafting Agreement remains in effect or any Obligations
(including Letter of Credit Obligations and Swing Line Overdraft Loans) remain
outstanding under this Agreement or any of the Notes. Each of said
attorneys-in-fact shall have the power to act hereunder with or without the
other. The Floor Plan Agent may, but shall not be obligated to, notify the Floor
Plan Borrowers of any such instruments or documents the Floor Plan Agent has
executed on any Borrower's behalf prior to such execution.
SECTION 2.8 Issuance of Drafting Agreements. Subject to the terms and
conditions of this Agreement, 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, countersigned by the Company, accompanied by applications,
letter of credit agreements and/or such other documentation related thereto as
the Floor Plan Agent may require, issue Drafting Agreements for the account of
the applicable Floor Plan Borrower.
SECTION 2.9 Conditions to Issuance. The Floor Plan Agent shall not be
obligated to enter into or issue a Drafting Agreement unless, as of the date of
issuance of such Drafting Agreement:
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(a) 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 issuance
(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 and otherwise be
satisfactory to Floor Plan Agent;
(b) the obligations of the Company and its Subsidiaries set
forth in this Agreement and the other Loan Documents to which each is a party
are valid, binding and enforceable obligations of such parties and the valid,
binding and enforceable nature of this Agreement and the other Loan Documents
has not been disputed by any of the Company or any of its Subsidiaries;
(c) the representations and warranties contained in this
Agreement or any other Loan Documents are true in all material respects as if
made on such date (unless limited to an earlier date), and both immediately
before and immediately after issuance of the Drafting Agreement so requested, no
Default or Event of Default has occurred and is continuing;
(d) No order, judgment or decree of any Governmental Authority
or arbitrator shall by its terms purport to enjoin or restrain the Floor Plan
Agent from entering into or issuing such Drafting Agreement; no Requirement of
Law applicable to the Floor Plan Agent and no request or directive (whether or
not having the force of law) from any Governmental Authority with jurisdiction
over the Floor Plan Agent 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 with respect to such Drafting Agreement any restriction,
reserve or capital requirement (for which the Floor Plan Agent is not otherwise
compensated hereunder) 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 (relating to Drafts and Drafting Agreements); and
(e) The Floor Plan Agent does not receive written notice from
any Bank, the Agent or any Floor Plan Borrower, on or prior to the Business Day
prior to the requested date of issuance or entry into such Drafting Agreement
that one or more of the applicable conditions contained in Article VIII (or in
this Section 2.9) has not been satisfied or that a Default or Event of Default
has occurred and is continuing.
Each application for a Drafting Agreement issued by a Borrower hereunder shall
constitute certification by each of the Company of the matters set forth in
subparagraphs (a) through (d) hereof, and Floor Plan Agent shall be entitled to
rely on such certification without any duty of inquiry. Immediately upon the
issuance or entering into by the Floor Plan Agent of each Drafting Agreement
(except in respect of any Drafting Agreement issued or entered into by the Floor
Plan Agent after
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it has obtained actual knowledge that an Event of Default has occurred and is
continuing), each Bank shall be deemed to, and subject to Section 4.6 (relating
to a Swing Line Overdraft Loan) hereby irrevocably and unconditionally agrees to
purchase from the Floor Plan Agent a participation in such Drafting Agreement
and each Draft thereunder in an amount equal to the product of (i) the Pro Rata
Share of Floor Plan Loan Commitments of such Bank and (ii) the amount of each
Draft presented by a Manufacturer.
Notwithstanding the foregoing, the Floor Plan Agent shall take such action as
necessary to terminate and suspend all Drafting Agreements effective ten days
prior to the Maturity Date then in effect.
SECTION 2.10 Notice of Issuance of or Entering into Manufacturers
Drafting Letters. The Floor Plan Agent shall give notice, substantially in the
form attached to this Agreement as Exhibit G, to each Bank of the issuance of or
entering into each Drafting Agreement not later than five (5) Business Days
after issuance of or entering into each such Drafting Agreement, attaching a
copy of such Drafting Agreement, as issued or entered into.
SECTION 2.11 Drafts Under Manufacturers Drafting Letters.
(a) In accordance with Sections 2.3, 4.3 and 4.6 hereof, each
Draft submitted by a Manufacturer pursuant to a Drafting Agreement shall
constitute a Request for Borrowing of a Floor Plan Loan, a Swing Line Loan, or a
Swing Line Overdraft Loan, as the case may be, and upon the funding of each
Draft presented by a Manufacturer under a Drafting Agreement, the Floor Plan
Agent shall be deemed to have disbursed or on behalf of the applicable Floor
Plan Borrower and the applicable Floor Plan Borrower shall be deemed to have
elected to substitute for its respective reimbursement obligations in respect of
such Draft, an advance of a Floor Plan Loan, a Swing Line Loan, or a Swing Line
Overdraft Loan, as the case may be, bearing interest at the Applicable Interest
Rate. Each of the Floor Plan Borrowers shall be irrevocably obligated to
reimburse Floor Plan Agent on demand for the amount of any Draft presented by a
Manufacturer under the terms of any Drafting Agreement; provided however that
such reimbursement obligation shall be deemed satisfied by the funding of a Loan
in respect thereto.
(b) Notwithstanding the obligation (if any) of the Floor Plan
Agent to fund a Draft drawn under a Drafting Agreement, (i) if at any time any
of the Floor Plan Borrowers has failed to satisfy the conditions precedent for
the Floor Plan Agent to make a Floor Plan Loan, or the Swing Line Bank to make a
Swing Line Loan or a Swing Line Overdraft Loan, (ii) if at any time the amount
of such Draft would cause the aggregate amount of Floor Plan Loans to exceed the
Floor Plan Loan Commitment, or (iii) after 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, commitment, Default or
Event of Default or otherwise any manner whatsoever affect the rights, and
remedies available to the Floor Plan Agent, the Agent, the Swing Line Bank or
any of the Banks hereunder. In any such event, the Floor Plan Borrowers shall
remain obligated to pay the amount of any Swing Line Overdraft Loan forthwith as
set forth herein and shall have all other duties and obligations applicable to
the Floor Plan Borrowers under this Agreement.
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Notwithstanding anything to the contrary contained herein, each of the Floor
Plan Borrowers shall bear all risk of loss resulting from the payment of any
Draft, or any resulting disbursements of the Floor Plan Loans, Swing Line Loans
or Swing Line Overdraft 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 4.6 hereof, each Bank shall be
obligated to fund Floor Plan Loans resulting from the presentation of Drafts by
Manufacturers under the Drafting Agreements, 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; provided, however, that if
for any reason the Floor Plan Agent is prohibited from making a Floor Plan Loan
in respect of any such Draft, each such Bank shall be deemed to and
unconditionally agrees to purchase from the Floor Plan Agent a participation
interest in the amount of such Draft (in the amount of its Pro Rata Share of
Floor Plan Loan Commitments), subject only to Section 4.6 hereof.
Notwithstanding the amount of the Floor Plan Loan Commitment in effect from time
to time, except with respect to the notices terminating or suspending drafting
privileges to be given pursuant Section 4.6(d) or Section 11.1 hereof or any
other notices given by the Floor Plan Agent in response to the written direction
of the Required Banks, the Floor Plan Agent shall not be obligated to terminate
or suspend the drafting privileges of any Manufacturer under the Drafting
Agreements even though the aggregate amount of Drafts which may be presented by
Manufacturers under the Drafting Agreements may exceed the amount of the Floor
Plan Loan Commitment in effect from time to time. Furthermore, (i) any
limitations contained in any of the Drafting Agreements (whether in respect of
daily Drafts to be presented or otherwise) are for informational purposes only
and Floor Plan Agent shall not be obligated to monitor or limit the amount of
Drafts presented or honored on the basis of any such limitations and (ii) any
right of the Floor Plan Agent, acting in its discretion and not at the direction
or with the concurrence of the Required Banks, to terminate or suspend drafting
privileges of any Manufacturer or otherwise exercise any right or remedy shall
be for the sole benefit and protection of the Floor Plan Agent, and Floor Plan
Agent shall not owe any duty to any of the other Banks with respect to such
rights or remedies or be required to exercise such rights or remedies to protect
any of the other Banks.
SECTION 2.12 Obligations Absolute. The Obligations of the Floor Plan
Borrowers under this Agreement and any of the other Loan Documents to reimburse
the Floor Plan Agent for Drafts presented by a Manufacturer under a Drafting
Agreement, and to repay any Swing Line Loans, the Floor Plan Loans or the Swing
Line Overdraft Loans, as the case may be, funded to pay a Draft shall be
unconditional and irrevocable, and 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 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 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
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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 or
claims arising out of the gross negligence, bad faith or willful misconduct of
the Floor Plan Agent or the Swing Line Bank; (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; or any loss or delay in the
transmission or otherwise of any document required in order to make a Draft
under any Drafting Agreement; (e) 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; or 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; (f) 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 Borrower in respect of any Drafting
Agreement; or (g) any other circumstance that might otherwise constitute a
defense available to, or discharge of, any Borrower other than the defense of
payment or claims arising out of the gross negligence, bad faith or willful
misconduct of the Floor Plan Agent or the Swing Line Bank.
ARTICLE III
ACQUISITION LOANS
SECTION 3.1 General. Subject to the terms and conditions and relying
upon the representations and warranties of the Company herein set forth, each
Bank severally and not jointly agrees on the terms and conditions set forth
herein to make revolving credit loans to the Company, (each such loan, an
"Acquisition 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 outstanding such Bank's Pro Rata Share of the lesser of (a) the
Acquisition Loan Advance Limit, or (b) the aggregate amount of the Acquisition
Loan Commitments of all the Banks; provided, however, that, after giving effect
to any Acquisition Loan Borrowing, the aggregate amount of all outstanding
Acquisition Loans, all outstanding Floor Plan Loans, all outstanding Swing Line
Loans and all outstanding Letter of Credit Obligations, shall not at any time
exceed the Total Commitment and subject to the other terms and conditions
hereof, the Company may borrow, prepay and reborrow Acquisition Loans under this
Section 3.1.
SECTION 3.2 Acquisition Loans.
(a) Each Acquisition Loan Borrowing made by the Banks to the
Company on any Borrowing Date 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 Acquisition Loan
Commitments, if less) and an integral multiple of One Million Dollars
($1,000,000) and shall consist of Acquisition Loans of the same Type made by the
Banks in
THIRD AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
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accordance with their respective Pro Rata Share of Acquisition Loan Commitments;
provided, however, that the failure of any Bank to make any Acquisition Loan
shall not relieve any other Bank of its obligation to lend hereunder.
(b) Each Acquisition Loan Borrowing 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. Each Bank may fulfill its
Acquisition Loan Commitment with respect to any Eurodollar Loan by causing, at
its option, any domestic or foreign branch or Affiliate of such Bank 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. Subject to the provisions of Section 3.3 and Section 5.9, Acquisition
Loan Borrowings of more than one Type may be outstanding at the same time.
(c) Each Bank shall make Acquisition Loans equal to its Pro
Rata Share of the Acquisition Loan Commitments by paying the amount required to
the Agent in Houston, Texas in U.S. Dollars and in immediately available funds
not later than 1:00 P.M., HOUSTON, TEXAS TIME, on the proposed Borrowing Date
and, subject to satisfaction of the conditions set forth in Article VIII, the
Agent shall promptly and in any event on the same day, credit the amounts so
received to the general deposit account of the Company, with the Agent, or 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 Banks. Unless the Agent shall have received notice from a Bank prior
to the date of any Acquisition Loan Borrowing that such Bank will not make
available to the Agent such Bank's portion of such Acquisition Loan Borrowing,
the Agent may assume that such Bank has made such portion available to the Agent
on the date of such Acquisition Borrowing in accordance with this Section 3.2
and the Agent may, in reliance upon such assumption, make available to the
Company on such date a corresponding amount. If, and to the extent that such
Bank shall not have made such portion available to the Agent, such Bank and the
Company jointly and severally agree to repay 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 Company until the date such amount is
repaid to the Agent (i) in the case of the Company at the interest rate
applicable at the time to the Loans comprising such Borrowing and (ii) in the
case of such Bank, at the Federal Funds Effective Rate. If such Bank shall repay
to the Agent such corresponding amount, such amount shall constitute such Banks'
portion of the Acquisition Loan as part of such Acquisition Loan Borrowing for
purposes of this Agreement.
SECTION 3.3 Notice of Acquisition Loan Borrowings.
(a) In order to obtain an Acquisition Loan, the Company shall
make an irrevocable written request therefor (or 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., HOUSTON, TEXAS TIME, one (1) Business Day before the
Borrowing Date of a proposed Acquisition Loan Borrowing, and (ii) in the case of
a Eurodollar
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Borrowing, not later than 11:00 A.M., HOUSTON, TEXAS TIME, three (3) Business
Days before the Borrowing Date of a proposed Acquisition Loan Borrowing. Each
Request for Loan Borrowing shall be irrevocable and shall in each case refer to
this Agreement and specify (1) whether the Request for Borrowing then being
requested is to be an ABR Borrowing or a Eurodollar Borrowing, (2) the Borrowing
Date of such Acquisition Loan Borrowing (which shall be a Business Day) and (3)
the aggregate amount thereof (which shall not be less than One Million Dollars
($1,000,000) or an integral multiple of One Million Dollars ($1,000,000) in
excess thereof), and (4) the Interest Period or Interest Periods with respect
thereto. If no election as to the Type of Acquisition Loan Borrowing is
specified in any such Request for Borrowing by the Company, such Acquisition
Loan Borrowing shall be an ABR Borrowing. If no Interest Period with respect to
any Borrowing is specified in any such Request for Borrowing, the Company shall
be deemed to have selected an Interest Period of one (1) month's duration. The
Agent shall promptly advise the Banks of any Request for Borrowing given by the
Company pursuant to this Section 3.3 and of each Bank's portion of the requested
Acquisition Loan Borrowing.
(b) No more than eight (8) Acquisition Loans may be
outstanding at any time. For purposes of the foregoing, Borrowings comprised of
Acquisition Loans having different Interest Periods, regardless of whether they
commence on the same date, shall be considered separate Borrowings.
SECTION 3.4 Reserve Commitment; Suspension of Acquisition Loans.
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) Swing Line Loans, plus (c) Requests for Floor Plan Loan
Borrowings exceeds ninety-five percent (95%) of the Floor Plan Loan Commitment
as of such date, then (i) a portion of the Acquisition Loan Commitment (the
"Reserve Commitment") in an amount equal to the lesser of (ii) Five Million
Dollars ($5,000,000) and (iii) the entire remaining unused portion of the
Acquisition Loan Commitment as of such date shall be reserved and shall no
longer be available for funding Acquisition Loans, and (d) no further
Acquisition Loan Borrowings (after giving effect to the Reserve Commitment in
clause (a) hereof) shall be available to the Company until the next Business Day
on which such condition no longer exists.
ARTICLE IV
SWING LINE LOANS
SECTION 4.1 Swing Line Commitments.
(a) The Swing Line Bank shall, on the terms and subject to the
conditions hereinafter set forth (including Section 4.3), make one or more
advances (each such advance being a "Swing Line Loan") to any Floor Plan
Borrower from time to time on any Business Day during the period from the
Closing Date to the Maturity Date in an aggregate principal amount not to exceed
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at any time (not including Swing Line Overdraft Loans) the aggregate amount of
the Swing Line Commitment as such amount may change from time to time; and
(b) The Swing Line Bank may on the terms and subject to the
conditions hereinafter set forth (including Section 4.3) make one or more Swing
Line Loans to any Floor Plan Borrower from time to time on any Business Day
during the period from the Closing Date to the Maturity Date in an aggregate
principal amount greater than the Swing Line Commitment but not to exceed at any
time (not including Swing Line Overdraft Loans) the aggregate amount of the
Floor Plan Loan Commitments of all the Banks; provided, however, that after
giving effect to all Borrowings of Swing Line Loans, Floor Plan Loans and all
Floor Plan Loans requested on any date, the sum of the aggregate principal
amount of all outstanding Floor Plan Loans and Swing Line Loans (but excluding
Swing Line Overdraft Loans) shall not exceed the aggregate amount of the then
applicable aggregate Floor Plan Loan Commitments. All Swing Line Loans
(including the Swing Line Overdraft Loans) shall be evidenced by the Swing Line
Note, under which advances, repayments and readvances may be made, subject to
the terms and conditions of this Agreement. Each Swing Line Loan shall mature
and the principal amount thereof shall be due and payable by the applicable
Floor Plan Borrower, as the case may be, on the last day of the Interest Period
applicable thereto. In no event whatsoever shall any outstanding Swing Line Loan
be deemed to reduce, modify or affect any Bank's obligation to make Floor Plan
Loans based upon its Pro Rata Share of Floor Plan Loan Commitments.
SECTION 4.2 Accrual of Interest; Margin Adjustments. Each Swing Line
Loan shall, from time to time after the date of such Loan, bear interest at its
Applicable Interest Rate. The amount and date of each Swing Line Loan, its
Applicable Interest Rate, its Interest Period, 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, however, that 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.
SECTION 4.3 Requests for Swing Line Loans.
(a) On the Closing Date, subject to the terms and conditions
hereunder set forth, the Swing Line Bank shall make a Swing Line Loan to one or
more of the Floor Plan Borrowers pursuant to a Request for Borrowing given by
such Floor Plan Borrowers in the manner specified in Section 4.3(b) and at the
Applicable Interest Rate in the aggregate amount of the Swing Line Minimum
Amount.
(b) On any day that a Request for Borrowing constitutes a
Request for Borrowing of a Swing Line Loan pursuant to Section 2.3(g)(ii), the
applicable Floor Plan Borrower shall be deemed to have delivered to Swing Line
Bank a Request for Borrowing in connection therewith, subject to the following
and to the remaining provisions of this Section 4.3:
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(i) the aggregate principal amount of such
requested Swing Line Loan Borrowing, plus the aggregate
principal amount of all other Swing Line Loans then
outstanding shall not exceed the Swing Line Commitment;
(ii) each such Request for Borrowing of a Swing
Line Loan once delivered to the Swing Line Bank, shall not be
revocable by the applicable Floor Plan Borrower, as the case
may be, and shall constitute and include a certification to
the extent applicable, by the Company of the provisions of
Section 2.3(f); and
(iii) the Swing Line Bank may, at its option,
make Swing Line Loans under this Section 4.3 upon the
irrevocable telephone request of a duly authorized officer of
any Floor Plan Borrower and, in the event the Swing Line Bank
makes any such Swing Line Loan upon a telephone request, the
requesting officer of such Floor Plan Borrower shall, if so
requested by the Swing Line Bank, deliver (including via fax)
to the Swing Line Bank on the same day as such telephone
request, a written Request for Borrowing of a Swing Line Loan.
Each of the Floor Plan Borrowers hereby authorizes the Swing
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
each such Floor Plan Borrower to make Requests for Borrowings
of Swing Line Loans on behalf of such Floor Plan Borrowers.
Notwithstanding the foregoing, each of the Floor Plan
Borrowers acknowledges and agrees that such Floor Plan
Borrower shall bear all risk of loss resulting from
disbursements made upon any telephone request. Each telephone
request for a Swing Line Loan Borrowing shall constitute a
certification of the matters set forth in Section 2.3(f) of
this Agreement.
SECTION 4.4 Disbursement of Swing Line Loans. Subject to receipt by the
Swing Line Bank of a Request for Borrowing of a Swing Line Loan by any Floor
Plan Borrower without exceptions noted in the compliance certifications in
connection therewith, and to the other terms and conditions of this Agreement,
the Swing Line Bank shall make available to any Floor Plan Borrower the amount
so requested, in same day funds, not later than 1:00 P.M., HOUSTON, TEXAS TIME
on the Borrowing Date of such Swing Line Loan, by credit to an account of the
applicable Floor Plan Borrower maintained with the Swing Line Bank or to such
other account or third party as such Floor Plan Borrower may reasonably direct.
The Swing Line Bank shall promptly notify the Floor Plan Agent of any Swing Line
Loan by telephone or telecopier.
SECTION 4.5 Refunding of or Participation Interest in Swing Line Loans.
(a) On any Floor Plan Adjustment Date the Swing Line Bank
shall, and upon the occurrence and during the continuance of an Event of
Default, the Swing Line Bank in its sole and absolute discretion, may:
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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 fax)
request to the Floor Plan Agent, requesting the Banks (including the Swing Line
Bank in its capacity as a Bank) to make Floor Plan Loans in an amount equal to
the outstanding principal amount of the Swing Line Loans in accordance with each
Bank's respective Pro Rata Share of Floor Plan Loan Commitments (including, but
only if an Event of Default shall have occurred and is continuing, the portion
thereof which constitutes the Swing Line Minimum Amount and excluding Swing Line
Overdraft Loans; provided that no such request shall require any Bank to make
Floor Plan Loans in excess of such Bank's Floor Plan Loan Commitment) (the
"Refunded Swing Line Loans") on the date such request is made; provided however,
unless an Event of Default has occurred and is continuing, Refunded Swing Line
Loans shall not be subject to the indemnification provisions of Section 5.10,
and no losses, costs or expenses may be assessed by the Swing Line Bank against
the applicable Floor Plan Borrower or the other Banks as a consequence thereof.
Unless an Event of Default described in Section 11.1(f) or 11.1(g) shall have
occurred (in which event the procedures of paragraph (b) of this Section 4.5
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, each Bank
shall upon request by the Agent in the manner specified in Section 2.4 thereof
make the proceeds of its Floor Plan Loan available to the Floor Plan Agent for
the benefit of the Swing Line Bank.
(b) If, prior to the Banks' making of Floor Plan Loans
pursuant to the provisions in paragraph (a) of this Section 4.5, an Event of
Default described in Section 11.1(f) or 11.1(g) shall have occurred, the Banks
shall, in the manner provided in Section 2.11 (b) and (c), on the date such
Floor Plan Loan was to have been made, purchase from the Swing Line Bank, in
accordance with each Bank's respective Pro Rata Share of Floor Plan Loan
Commitments, participation interests in the Refunded Swing Line Loan; provided,
however, except for any Borrowing which occurs as a result of a Draft made prior
to the effective suspension or termination of the Drafting Agreement pursuant to
which such Borrowing occurred which Borrowing is subject to Section 2.11 hereof,
no Bank shall be obligated to purchase a participation interest in a Refunded
Swing Line Loan to the extent such Loan was made by the Swing Line Bank
notwithstanding the failure of the Floor Plan Borrower to which such Loan was
made to satisfy the requirements of Section 2.3(f).
(c) Each Bank's obligation to make Floor Plan Loans and to
purchase participation interests in accordance with Section 4.5(a) and Section
4.5(b) 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 Bank may have against the Swing
Line Bank, any Floor Plan 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 Floor Plan Borrower or any other Person; (iv) any breach of this Agreement
by any Floor Plan Borrower or any other Person; (v) any inability of any Floor
Plan Borrower to satisfy the conditions precedent to a Borrowing set forth in
this Agreement on the date upon which such Floor Plan Loan is required to be
made or such participating interest is to be
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purchased; or (vi) any other circumstance, happening or event whatsoever,
whether or not similar to any of the foregoing. If any Bank does not make
available to the Floor Plan 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 Bank, 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.
(d) Refunded Swing Line Loans which are funded by the Banks
after two (2) Business Days notice as provided in subsection 4.5(a) shall
thereafter become Floor Plan Loans and subject to any right of acceleration
herein provided, shall remain outstanding until the next succeeding Floor Plan
Adjustment Date. Such Loans shall accrue interest in favor of the Banks in
accordance with each Bank's respective Pro Rata Share of Floor Plan Loan
Commitments at the Comerica Prime-based Rate. 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(b).
SECTION 4.6 Swing Line Overdraft Loans.
(a) On any day that a Request for Borrowing of a Floor Plan
Loan constitutes a Swing Line Overdraft Borrowing Request pursuant to Section
2.3(g)(iii), the applicable Floor Plan Borrower shall be deemed to have
delivered to the Swing Line Bank a Swing Line Overdraft Borrowing Request, and
each such Swing Line Overdraft Borrowing Request shall not be revocable by the
applicable Floor Plan Borrower, as the case may be, and shall constitute and
include a certification as to itself and its Subsidiaries, to the extent
applicable, by such Floor Plan Borrower of the provisions of Section 2.3(f).
(b) Each Swing Line Overdraft Loan shall bear interest at the
Applicable Interest Rate. The amount and date of each Swing Line Overdraft Loan,
the Applicable Interest Rate, the Interest Period, and the amounts and dates of
any repayment shall be noted on the Swing Line Bank's records, which records
will be conclusive evidence thereof, absent manifest error; provided however,
that any failure by the Swing Line Bank to record any such information shall not
affect the applicable Floor Plan Borrower's obligation under the terms of this
Agreement and the Loan Documents.
(c) Swing Line Overdraft Loans shall be made only by the Swing
Line Bank, solely for its own account and shall not be subject to the provisions
of Section 4.5; provided, however, at any time a Swing Line Overdraft Loan is
outstanding, the payment of principal and interest with respect to all Loans
shall be subordinated in right of payment and priority to the prior payment in
full of the Swing Line Overdraft Loans and the Floor Plan Agent, the Agent and
the Banks, as the case may be, shall remit to the Swing Line Bank, and the Swing
Line Bank shall have the right to receive, all payments of principal and
interest made by any Borrower in respect of any Loan and all other proceeds of
Collateral securing the Loans for application and reduction of the aggregate
principal amount of outstanding Swing Line Overdraft Loans.
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(d) If at any time the aggregate outstanding principal amount
of all (i) Floor Plan Loans, plus (ii) Swing Line Loans, plus (iii) Swing Line
Overdraft Loans, plus (iv) Requests for Borrowings of Floor Plan Loans exceeds
(A) one hundred ten percent (110%) of the aggregate Floor Plan Loan Commitments
as of such date and such condition exists for two (2) consecutive Business Days
or (B) the aggregate Floor Plan Loan Commitments by any amount for any fifteen
(15) days out of any thirty (30) day period, then, in such event, the Floor Plan
Agent shall give prompt written notice to the Agent and the Agent shall give
prompt written notice to the Banks and the Floor Plan Agent acting in its sole
discretion may, and upon the election of the Required Banks shall (y) take any
and all actions reasonably necessary to suspend and/or terminate Drafts pursuant
to the Drafting Agreements and (z) elect by written notice to the Company to
terminate the Commitments and to deem such occurrence as constituting an Event
of Default.
ARTICLE V
ALL LOANS
SECTION 5.1 Notes: Repayment of Loans.
(a) All Loans made hereunder shall be evidenced by the Notes
or the Swing Line Note, as the case may be, shall be payable as therein
provided, dated the Closing Date, and shall be in an aggregate principal amount
equal to the Total Commitments on such date. All Borrowers agree, jointly and
severally, to pay the outstanding principal balance of such Loans and all
interest thereon and all the obligations, as evidenced by the Notes, 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 Bank, the Agent or the Floor Plan Agent and the Swing
Line Bank, on its behalf, and the Swing Line Bank shall, and is hereby
authorized by each Borrower to, endorse on the schedule attached to the Notes
delivered to each Bank (or a continuation of such schedule attached to such
Notes and made a part thereof), or otherwise record in such Bank's 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, however, that the failure of any Bank, Agent or the Floor Plan Agent,
or the Swing Line Bank to make such a notation or any error in such a notation
shall not affect the obligations of all Borrowers hereunder or under the Notes
or the Swing Line Note.
SECTION 5.2 Interest on Loans.
(a) Subject to the provisions of Section 5.3, each Alternate
Base Rate Loan shall bear interest at a rate per annum, equal to the lesser of
(i) the Alternate Base Rate plus the Applicable Margin for ABR Loans and (ii)
the Highest Lawful 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
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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, each Comerica
Prime Rate Loan 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
lesser of (i) the Comerica Prime-based Rate for the Interest Period in effect
for such Loan and (ii) the Highest Lawful Rate.
(c) Subject to the provisions of Section 5.3, (i) each
Eurodollar Loan which is an Acquisition Loan 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 lesser of (1) the LIBO Rate for the Interest Period in
effect for such Loan plus the Applicable Margin for Eurodollar Acquisition Loans
and (2) the Highest Lawful Rate; and (ii) each Eurodollar Loan which is a Floor
Plan Loan 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 lesser of
(1) the LIBO Rate for the Interest Period in effect for such Loan plus 1.25% and
(2) the Highest Lawful Rate.
(d) Interest on each Acquisition 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 each Swing Line
Loan and Swing Line Overdraft Loan shall be payable in arrears on each Interest
Payment Date applicable to such Loan except as otherwise provided in this
Agreement. The applicable LIBO Rate, and the Alternate Base Rate shall be
determined by the Agent, and the Comerica Prime Rate shall be determined by the
Floor Plan Agent, and such determination shall be conclusive absent demonstrable
error. The Agent shall promptly advise the Borrowers and each Bank of each such
determination.
SECTION 5.3 Interest on Overdue Amounts. If any Borrower shall default
in the payment of the principal of or interest on any Loan or any other amount
due hereunder, by acceleration or otherwise, such Borrower shall on demand from
time to time pay interest, to the extent permitted by law, on such defaulted
amount up to (but not including) the date of actual payment (after as well as
before judgment) at a rate per annum (computed on the basis of the actual number
of days elapsed over a period of 360 days) equal to the lesser of (a) the
Highest Lawful Rate and (b) the Alternate Base Rate plus two percent (2%) per
annum.
SECTION 5.4 Fees.
(a) The Company shall pay each Bank, through the Agent, on the
last day of each March, June, September and December, and on the Maturity Date,
in immediately available funds, (i) a Floor Plan Loan Commitment fee (such
Bank's "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 Commitment of such Bank, during the immediately preceding fiscal quarter
(or shorter portion thereof) just ended; (ii) an Acquisition Loan Commitment fee
(such Bank's "Acquisition Loan Commitment Fee") equal to thirty-seven and
one-half one-hundredths of
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one percent (0.375%) per annum times the average unused amount of the
Acquisition Loan Commitment of such Bank during the immediately preceding fiscal
quarter (or shorter period thereof) just ended; and (iii) subject to Section
13.8, at any time Acquisition Loans are equal to or greater than $100,000,000, a
usage fee ("Usage Fee") equal to twelve and one-half one-hundredths of one
percent (0.125%) per annum times the outstanding principal balance of
Acquisition Loans owing to each such Bank (computed on the basis of the actual
number of days such condition exists). All Commitment Fees and Usage 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. All Usage Fees under
this Section 5.4(a) shall be computed on the basis of the actual Acquisition
Loans outstanding during the applicable period. The Floor Plan Loan Commitment
Fees, the Acquisition Loan Commitment Fees, and Usage Fees due to each Bank
shall commence to accrue on the Closing Date and cease to accrue on the earlier
of the Maturity Date or the termination of the Commitments of such Bank pursuant
to Section 5.5 or 13.3 (b).
(b) The Company shall pay the Agent and Chase Securities Inc.
the fees (the "Agency Fees") in such amount and on such dates as may be agreed
between the Company, the Agent and Chase Securities Inc. pursuant to that
certain letter agreement dated April 5, 1999 herewith among the Company, the
Agent, and Chase Securities Inc. (the "Agent's Letter").
(c) The Company shall pay the Floor Plan Agent a Floor Plan
Agency Fee ("Floor Plan Agency Fee") in such amount on such dates as may be
agreed between the Company and the Floor Plan Agent (the "Floor Plan Agent's
Letter").
(d) The Company shall pay the Agent for the benefit of the
Banks, according to their Pro Rata Share of Floor Plan Loan Commitments, a fee
in the amount of $750.00 for each day any Swing Line Overdraft Loan is
outstanding; and such amount (if any) shall be payable on the last Business Day
of each month.
(e) The Company shall pay to each of the Banks on the Closing
Date the amendment fee and the participation fee payable to each of the Banks as
provided in the letter dated April 7, 1999 from the Agent to each of the Banks,
respectively.
SECTION 5.5 Termination, Reduction or Conversion of Commitments. The
Commitment of a Bank shall be deemed "unused" to the extent and in the amount
such Bank is obligated to fund future Loans or Letter of Credit Obligations of
any Borrower.
(a) Subject to Section 3.4, upon at least three (3) Business
Days' prior written notice to the Agent, the Company may at any time, in whole,
permanently terminate, or from time to time, permanently reduce, the Total
Commitments, ratably among the Banks in accordance with (i) their respective Pro
Rata Share of Floor Plan Loan Commitments, and (ii) their respective Pro Rata
Share of Acquisition Loan Commitments; provided, however, that (x) any such
partial reduction of the Total Commitments shall be in minimum aggregate
increments of Five Million Dollars ($5,000,000) and the Total Commitments may
not be reduced to less than an aggregate
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amount of One Hundred Million Dollars ($100,000,000) unless the Total
Commitments are terminated in whole; (y) any such partial reduction shall be
made ratably between the Floor Plan Loan Commitments and the Acquisition Loan
Commitments of each Bank, respectively, and (z) no reduction shall reduce the
amount of the Acquisition Loan Commitments to an amount which is less than the
Letter of Credit Obligations outstanding at such time; provided further, the
Floor Plan Agent in its sole discretion may, or at the direction of the Required
Banks, shall suspend and/or terminate all or any portion of the then outstanding
Drafting Agreements.
(b) At any time there exists any unused portion of the
Acquisition Loan Commitments, the Company may request the Agent to convert such
unused portion of the Acquisition Loan Commitments to the Floor Plan Loan
Commitments and thereafter the Acquisition Loan Commitments shall be in an
aggregate amount equal to (i) the sum of all Acquisition Loans then outstanding,
plus (ii) all Letter of Credit Obligations then outstanding, plus (iii) the
remaining unused portion of the Acquisition Loan Commitments after subtracting
the amount thereof converted to the Floor Plan Loan Commitments; in such event,
the Floor Plan Loan Commitments shall, upon such request, be irrevocably
increased by the amount so requested by the Company, such amount together with
the Acquisition Loan Commitments not to exceed the Total Commitment. 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 Acquisition Loan Commitments shall be restored, as applicable, in the
respective amounts so requested by the Company.
(c) At the time the Commitments of any Bank are terminated or
reduced pursuant to Section 5.5, the Company shall pay to the Agent for the
account of each such Bank, the Floor Plan Loan Commitment Fees and the
Acquisition Loan Commitment Fees on the amount of the Commitments so terminated
or reduced owed through the date of such termination or reduction.
(d) Each of the Commitments shall automatically and
permanently terminate on the Maturity Date.
SECTION 5.6 Alternate Rate of Interest. In the event, and on each
occasion, that on the day two (2) Business Days prior to the commencement of any
Interest Period for a Eurodollar Borrowing, the Agent shall have determined
(which determination shall be conclusive and binding upon the Borrowers) that:
(a) dollar deposits in the amount set forth in such 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 Bank 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 Banks 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 (i) if such Borrowing is a Floor Plan
Loan Borrowing, Comerica Prime Rate Loans, and (ii) if such Borrowing is an
Acquisition Loan
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Borrowing, Alternate Base Rate Loans. Each determination of the Agent hereunder
shall be conclusive absent demonstrable error.
SECTION 5.7 Prepayment of Loans; Mandatory Reduction of Indebtedness.
(a) So long as no Swing Line Overdraft Loans are outstanding,
each Acquisition Loan Borrowing and each Floor Plan Loan Borrowing may be
prepaid at any time and from time to time, in whole or in part, subject to the
requirements of Section 5.10, but otherwise without premium or penalty, upon at
least thee (3) Business Days' prior written or telex notice to the Agent.
(b) On the date of any termination or reduction of the Total
Commitments pursuant to Section 5.5(a) or (e), each of the Borrowers shall
prepay so much of its Loans (up to the amount by which the Commitments are 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 specify the prepayment
date and the principal amount of each Loan (or portion thereof) to be prepaid,
which notice shall be irrevocable and shall commit the Borrower making such
notice to prepay such Loan by the amount stated therein on the date stated
therein. 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(g)(iii), if at
any time and for any reason:
(i) the aggregate principal amount of all (y)
Floor Plan Loans outstanding, plus (z) Swing Line Loans
outstanding shall exceed the amount of Floor Plan Loan
Commitment at such time, or
(ii) the aggregate principal amount of all (y)
Acquisition Loans, plus (z) Letter of Credit Obligation's
shall exceed the amount of the Acquisition Loan Commitment, or
(iii) the aggregate principal amount of all (w)
Floor Plan Loans outstanding, (x) Swing Line Loans
outstanding, plus (y) Acquisition Loans outstanding, plus (z)
Letter of Credit Obligations outstanding shall exceed the
Total Commitments,
the Borrowers shall immediately pay to the Agent (for application in the manner
directed by the Company) an amount of such Obligations equal to such excess,
provided, however, that Borrowers shall have the right to direct such repayment
first to prepay such portion of the Indebtedness not subject to the
indemnification provisions of this Agreement in Section 5.10.
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SECTION 5.8 Reserve Requirements; Change in Circumstances.
(a) It is understood that the cost to each Bank 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
each of the Banks from time to time such amounts as shall be necessary to
compensate such Bank for the portion of the cost of making or maintaining
Eurodollar Loans resulting from any increase in such reserve requirements
provided for in Regulation D 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 Banks 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 Bank of the
principal of or interest on any Eurodollar Loan made by such Bank or any other
fees or amounts payable hereunder (other than taxes imposed on the overall net
income of such Bank by the jurisdiction in which such Bank 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 Bank or shall impose on such Bank or the
London interbank market any other condition affecting this Agreement or
Eurodollar Loans made by such Bank and the result of any of the foregoing shall
be to increase the cost to such Bank of making or maintaining any Eurodollar
Loan or to reduce the amount of any sum received or receivable by such Bank
hereunder (whether of principal, interest or otherwise) in respect thereof, by
an amount deemed by such Bank 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 Bank for such additional costs or reduction will
be paid to such Bank with respect to the Eurodollar Loans.
(c) If any Bank shall have determined that the applicability
of any law, rule, regulation or guideline adopted pursuant to or arising out of
the July 1988 report of the Basle Committee on Banking Regulations and
Supervisory Practices entitled "International Convergence of Capital Measurement
and Capital Standards," or the adoption after the date hereof of any other 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
Bank (or any lending office of such Bank) or any Bank's holding company 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 Bank's capital or on the
capital of such Bank's holding company, if any, as a
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consequence of this Agreement or the Loans made by such Bank pursuant hereto to
a level below that which such Bank or such Bank's holding company could have
achieved but for such adoption, change or compliance (taking into consideration
such Bank's policies and the policies of such Bank's holding company with
respect to capital adequacy) by an amount deemed by such Bank to be material,
then the Borrowers shall pay as required to Section 5.8(d) to such Bank such
additional amount or amounts as will compensate such Bank or such Bank's holding
company for any such reduction suffered.
(d) A certificate of each Bank 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 such Bank
(or participating banks or other entities pursuant to Article XIII) as specified
in paragraph (a), (b) or (c) above 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 Bank is
entitled to receive. The Borrowers shall pay such Bank the amount shown as due
on any such certificate within ten (10) days after its receipt of the same.
(e) Any demand for compensation pursuant to this Section 5.8
must be made on or before one (1) year after the Bank incurs the expense, cost
or economic loss referred to or such Bank shall be deemed to have waived the
right to such compensation. The protection of this Section 5.8 shall be
available to each Bank 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 Bank for compensation.
(f) Nothing in this Section 5.8 shall entitle any Bank to
receive interest at a rate per annum in excess of the Highest Lawful Rate.
(g) The term "Bank" or "Banks" as used in this Section 5.8
shall include the Swing Line Bank and the provisions hereof, when applicable,
shall apply to the Swing Line Bank.
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 Bank to make or maintain any Eurodollar Loan or
to give effect to its obligations in respect of any Eurodollar Borrowing
contemplated hereby, then, by written notice to the Agent, such Bank may:
(i) declare that Eurodollar Loans will not
thereafter be made by such Bank hereunder, whereupon any
request by any Borrower for a Eurodollar Borrowing shall, as
to such Bank only, be deemed a request for an Alternate Base
or the Comerica Prime Rate, as applicable, Rate Loan unless
such declaration shall be subsequently withdrawn; and
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(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 if Acquisition Loans
and to Comerica Prime Rate Loans if Floor Plan Loans, as of
the effective date of such notice as provided in paragraph (b)
below.
In the event any Bank 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 that would have been made by such Bank or the
converted Eurodollar Loans of such Bank shall instead be applied to repay the
Alternate Base Rate Loans if Acquisition Loans and to Comerica Prime Rate Loans
if Floor Plan Loans, made by such Bank in lieu of, or resulting from the
conversion of, such Eurodollar Loans; provided, however, the Alternate Base Rate
Loans or Comerica Prime Rate Loans resulting from the conversion of such
Eurodollar Loans shall be prepayable only at the times the converted Eurodollar
Loans would have been prepayable, notwithstanding the provisions of Section
5.7(a).
(b) For purposes of Section 5.9(a), a notice to the Agent by
any Bank shall be effective as to each Eurodollar Loan, if lawful, on the last
day of the then-current Interest Period or, if there are then two (2) or more
current Interest Periods, on the last day of each such Interest Period,
respectively; otherwise, such notice shall be effective on the date of receipt
by the Agent.
(c) The term "Bank" or "Banks" as used in this Section 5.9
shall include the Swing Line Bank and the provisions hereof, when applicable,
shall apply to the Swing Line Bank.
SECTION 5.10 Indemnity.
(a) The Borrowers shall indemnify each Bank against any loss
or expense which such Bank 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 notice of conversion or continuation has been given pursuant
to Sections 2.4, 3.3 and 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 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 Bank 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
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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
(as reasonably determined by such Bank) that could be realized by such Bank in
reemploying during such period the funds so paid, prepaid or converted or not
borrowed. A certificate of each Bank setting forth in reasonable detail
calculations (together with the basis and assumptions therefore) to establish
any amount or amounts which such Bank 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 Bank is entitled to receive.
Nothing in this Section 5.10 shall entitle any Bank to receive interest at a
rate per annum in excess of the Highest Lawful Rate.
(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, or any investigation made by or on
behalf of any Bank; provided demand for compensation pursuant to Section 5.08
must be made on or before one (1) year after the Bank incurs the expense, cost
or economic loss referred to or such Bank 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.
(c) The term "Bank" or "Banks" as used in this Section 5.10
shall include the Swing Line Bank and the provisions hereof, when applicable,
shall apply to the Swing Line Bank.
SECTION 5.11 Pro Rata Treatment. Subject to Section 4.6(c) hereof, and
except as permitted under Section 5.8, 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 Bank's
respective (i) Pro Rata Share of Floor Plan Loan Commitments, and (ii) Pro Rata
Share of Acquisition Loan Commitments.
SECTION 5.12 Payments.
(a) The Company and/or any of the Borrowers shall make all
payments of principal and interest on any Swing Line Loan and any Swing Line
Overdraft Loan, any curtailment payment, and payments of the proceeds of the
sale of any Motor Vehicle to the Floor Plan Agent on the date when due in
dollars to the Floor Plan Agent at its offices in Detroit Michigan, and except
as otherwise provided in this Agreement, the Company and/or any of the Borrowers
shall make all payments (including principal of or interest on any Borrowing,
Agency Fee, or any other fees or other amounts) payable hereunder and under any
other Loan Document not later than 1:00 P.M., HOUSTON, TEXAS TIME, on the date
when due in dollars to the Agent at its offices at 707 Travis Street, Houston,
Texas 77002, in immediately available funds, without setoff or counterclaim.
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(b) Subject to the provisos contained in subclauses (A) of the
definition of "Interest Period", 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 may be made on the next succeeding Business
Day, and such extension of time shall in such case be included in the
computation of interest or fees, if applicable.
SECTION 5.13 Sharing of Setoffs. Except as otherwise provided in
Section 4.6(c) in connection with the payment of Swing Line Overdraft Loans,
each Bank 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 Bank 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 Bank, it shall be deemed to have simultaneously purchased from such other
Bank a participation in the Note held by such other Bank, so that the aggregate
unpaid principal amount of the Note and participations in Notes held by each
Bank 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, however, 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. The Borrowers expressly
consent to the foregoing arrangements and agree that any Person holding a
participation in a Note under this Section 5.13 deemed to have been so purchased
may exercise any and all rights of banker's lien, setoff or counterclaim with
respect to any and all moneys owing by any such Borrower to such Bank as fully
as if such Bank had made a Loan directly to such Borrower in the amount of such
participation.
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, the Swing Line Bank's or any Bank's or any transferee's or assignee's,
excluding a 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 Bank (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 Banks (or any Transferee), the Agent, the Floor Plan Agent or
the Swing Line Bank (i) the sum payable
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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 Bank (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(a) (hereinafter referred to as "Other Taxes").
(c) The Borrowers will indemnify each Bank (or Transferee),
the Swing Line Bank, the Agent and/or 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 Bank (or
Transferee), the Swing Line Bank, the Agent and/or 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 Bank (or Transferee), the Agent, the
Swing Line Bank, and/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 Bank (or Transferee), the Swing Line
Bank, the Agent and/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
Bank (or Transferee) the Swing Line Bank, the Agent, and/or the Floor Plan
Agent, the 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.
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(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 Bank, the Swing Line
Bank and each Transferee each represents that 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 Bank (or Transferee) which is
organized outside the United States shall, on the date it becomes a signatory
hereto, deliver to the Company such certificates, documents or other evidence,
as required by the Code or Treasury Regulations issued pursuant thereto,
including Internal Revenue Service Form 1001 or Form 4224 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 Bank (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 Bank (or Transferee)
of a trade or business in the United States or (ii) totally 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 Bank (or Transferee) or assignee organized
under the laws of a jurisdiction outside the United States.
(g) The Borrowers shall not be required to pay any additional
amounts to any Bank (or Transferee) in respect of United States withholding tax
pursuant to paragraph (a) or (c) above 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 Bank (or Transferee) to comply
with the provisions of paragraph (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 (and, in the case of a Transferee, after the
date of assignment or transfer).
(h) Any Bank (or Transferee) claiming any additional amounts
payable pursuant to 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 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
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would not, in the sole determination of such Bank, be otherwise disadvantageous
to such Bank (or Transferee).
(i) If any Bank (or Transferee) requests compensation pursuant
to this Section 5.14, the Company may give notice to such Bank (with a copy to
the Agent) that they wish to seek one or more Eligible Assignees (which may be
one or more of the Banks) to assume the Commitments of such Bank and to purchase
its outstanding Loans and Note. Each Bank (or Transferee) requesting
compensation pursuant to this Section 5.14 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 Bank (or Transferee) hereunder
calculated, in each case, to the date such Commitment, Loans and Note are
purchased, whereupon such Bank (or Transferee) shall thereafter have no other
Commitments or other obligation to the Floor Plan Borrowers hereunder or under
any Note.
SECTION 5.15 Conversion and Continuation of Acquisition Loan Borrowings
and Floor Plan Borrowings.
(a) The Company shall have the right with respect to
Acquisition Loan Borrowings, on behalf of any Borrower, at any time upon prior
irrevocable notice to the Agent (x) not later than 10:00 A.M., HOUSTON, TEXAS
TIME, on the date of conversion, to convert any Eurodollar Borrowing into an ABR
Borrowing, (y) not later than 11:00 A.M., HOUSTON, TEXAS 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., HOUSTON, TEXAS
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
permissible Interest Period subject in each case to the following:
(i) each conversion or continuation shall be made
among the Banks, in accordance (y) with each Bank's Pro Rata Share of
Acquisition Loan Commitments, and (z) with the respective principal
amounts of the Acquisition Loans comprising the converted or continued
Acquisition Loan Borrowing;
(ii) if less than all the outstanding principal
amount of any such Acquisition Loan Borrowing shall be converted or
continued, the aggregate principal amount of such Acquisition Loan
Borrowing 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);
(iii) if any Eurodollar Borrowing is converted at a
time other than the end of the Interest Period applicable thereto, the
Company shall pay, upon demand, any amounts due, if any, to the Banks
under Section 5.10;
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(iv) any portion of a Borrowing maturing or required
to be repaid in less than one month may not be converted into or
continued as a Eurodollar Borrowing;
(v) any portion of a Eurodollar Borrowing which
cannot be converted into or continued as a Eurodollar Borrowing by
reason of clause (iv) above shall be automatically converted at the end
of the Interest Period in effect for such Acquisition Loan Borrowing
into an ABR Borrowing;
(vi) no Interest Period may be selected for any
Eurodollar Borrowing that would end later than the Maturity Date; and
(vii) accrued interest on an Acquisition 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(a) shall be irrevocable and
shall refer to this Agreement and specify (w) the identity and amount of the
Acquisition Loan Borrowing that the Company requests to be converted or
continued, (x) whether such Acquisition 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 Acquisition 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 Banks of any notice given pursuant to this
Section 5.15(a) and of each Bank's portion of any converted or continued
Borrowing. If the Company shall not have given written notice in accordance with
this Section 5.15(a) 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(a) to convert such Acquisition Loan Borrowing), such
Acquisition Loan Borrowing shall, at the end of the Interest Period applicable
thereto (unless repaid pursuant to the terms hereof), automatically be converted
into as an ABR Borrowing.
(b) The Company shall have the right with respect to Floor
Plan Loan Borrowings, on behalf of any Floor Plan Borrower, at any time upon
prior irrevocable notice to the Agent (x) not later than 10:00 A.M., HOUSTON,
TEXAS TIME, on the date of conversion, to convert any Eurodollar Borrowing into
a Comerica Prime Rate Borrowing, (y) not later than 11:00 A.M., HOUSTON, TEXAS
TIME, three Business Days prior to conversion or continuation, to convert all or
any portion of any Comerica Prime Rate Borrowing into a Eurodollar Borrowing or
to continue all or any portion of any Eurodollar Borrowing of any Floor Plan
Borrower as a Eurodollar Borrowing for an additional Interest Period, and (z)
not later than 11:00 A.M., HOUSTON, TEXAS 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 permissible Interest Period subject in each
case to the following:
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(i) each conversion or continuation shall be made
pro rata among the Banks, in accordance (y) with each Bank's Pro Rata
Share of Floor Plan Loan Commitments, and (z) with the respective
principal amounts of the Floor Plan Loans comprising the converted or
continued Floor Plan Loan Borrowing;
(ii) if less than all the outstanding principal
amount of any such Floor Plan Loan Borrowing shall be converted or
continued, the aggregate principal amount of such Floor Plan Loan
Borrowing 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);
(iii) if any Eurodollar Borrowing is converted at a
time other than the end of the Interest Period applicable thereto, the
Company shall pay, upon demand, any amounts due, if any, to the Banks
under Section 5.10;
(iv) any portion of a Borrowing maturing or required
to be repaid in less than one month may not be converted into or
continued as a Eurodollar Borrowing;
(v) any portion of a Eurodollar Borrowing which
cannot be converted into or continued as a Eurodollar Borrowing by
reason of clause (iv) above shall be automatically converted at the end
of the Interest Period in effect for such Floor Plan Loan Borrowing
into a Comerica Prime Rate Borrowing;
(vi) no Interest Period may be selected for any
Eurodollar Borrowing that would end later than the Maturity Date; and
(vii) accrued interest on an Floor Plan 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(b) shall be irrevocable and
shall refer to this Agreement and specify (w) the identity and amount of the
Floor Plan Loan Borrowing that the Company requests to be converted or
continued, (x) whether such Floor Plan Loan Borrowing is to be converted to or
continued as a Eurodollar Borrowing or a Comerica Prime Rate Borrowing, (y) if
such notice requests a conversion, the date of such conversion (which shall be a
Business Day) and (z) if such Floor Plan 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 Banks of any notice given pursuant to this
Section 5.15(b) and of each Bank's portion of any converted or continued
Borrowing. If the Company shall not have given written notice in accordance with
this Section 5.15(b) 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(b) to convert such Floor Plan Loan Borrowing), such Floor
Plan Loan Borrowing shall,
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at the end of the Interest Period applicable thereto (unless repaid pursuant to
the terms hereof), automatically be converted into a Comerica Prime Rate
Borrowing.
SECTION 5.16 Extension of Maturity Date.
(a) Provided that no Default or Event of Default has occurred
and is continuing, the Company may, by written notice to Agent (with sufficient
copies for each Bank) (which notice shall be irrevocable and which shall not be
deemed effective unless actually received by Agent) prior to November 1, but not
before October 1, of each fiscal year, request that the Banks extend the then
applicable Maturity Date to a date that is one year later than the Maturity
Date, then in effect (each such request, a "Request"). Each Bank shall, not
later than November 30th of such fiscal year, give written notice to the Agent
stating whether such Bank is willing to extend the Maturity Date as requested.
If Agent has received the aforesaid written approvals of such Request from each
of the Banks, then, effective upon the date of Agent's receipt of all such
written approvals from the Banks, as aforesaid, the Maturity Date shall be so
extended for an additional one year period, the term Maturity Date shall mean
such extended date and Agent shall promptly notify the Company that such
extension has occurred.
(b) If (i) any Bank gives the Agent written notice that it is
unwilling to extend the Maturity Date as requested or (ii) any Bank fails to
provide written approval to Agent of such a Request on or before November 30 of
such fiscal year, then, (w) the Banks shall be deemed to have declined to extend
the Maturity Date, (x) the then-current Maturity Date shall remain in effect
(with no further right on the part of the Company to request extensions thereof
under this Section 2.9), and (y) the Floor Plan Loan Commitments and the
Acquisition Loan Commitments of each of the Banks shall terminate on the
Maturity Date then in effect, the Floor Plan Agent shall take such action as
necessary to terminate and suspend all Drafting Agreements effective ten (10)
days prior to the Maturity Date then in effect, and Agent shall promptly notify
Company thereof.
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 last Business Day thirty (30) days prior to the Maturity
Date (the "Letter of Credit Termination Date") to issue Letters of Credit for
the account of any Borrower, and to amend or renew Letters of Credit previously
issued by it, in accordance with Section 6.2; and (ii) the Banks severally agree
to participate in Letters of Credit Issued for the account of the Borrowers;
provided, that the Issuing Bank shall not be obligated to Issue, and no Bank
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 Five Million
Dollars ($5,000,000) or (z) the aggregate principal amount of Acquisition Loans
outstanding plus the Letter of
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Credit Obligations outstanding as of such day shall exceed the Acquisition Loan
Commitments of all the Banks; further, the aggregate principal amount of all
Letter of Credit Obligations outstanding, plus the aggregate principal amount of
all Acquisition Loans outstanding, plus the aggregate principal amount of all
Swing Line Loans outstanding plus the aggregate principal amount of all Floor
Plan Loans outstanding shall not at any time exceed the Total Commitments.
Within the foregoing limits, and subject to the other terms and conditions
hereof, the ability of the Borrowers 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 or arbitrator 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 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, or shall impose upon the Issuing Bank any unreimbursed loss, cost
or expense which was not applicable on the Closing Date and which the Issuing
Bank in good faith deems material to it; (ii) the Issuing Bank has received
written notice from any Bank, the Agent or any Borrower, on or prior to the
Business Day prior to the requested date of Issuance of such Letter of Credit,
that one or more of the applicable conditions contained in Article VIII 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 does not provide for drafts, or is not
otherwise in form and substance acceptable to the Issuing Bank, or the Issuance
of a Letter of Credit shall violate any applicable policies of the Issuing Bank,
or the Issuance of a Letter of Credit is for an amount less than One Hundred
Thousand Dollars ($100,000) or to be denominated in a currency other than U.S.
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) days (or such shorter time as the
Issuing Bank may agree in a particular instance in its sole discretion) prior to
the proposed date of Issuance. Each such request for Issuance of a Letter of
Credit shall be by facsimile, confirmed immediately in an original writing, in
the form of a Letter of Credit Application, and shall specify in form and detail
satisfactory to the Issuing Bank such matters as the Issuing Bank may require.
Each Letter of Credit (i) will be for the account of such Borrower, (ii) will be
a (A) nontransferable standby letter of credit to support certain performance
obligations of such Borrower, or (B) non-transferable standby letter of credit
to support certain
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payment obligations of such Borrower that are not prohibited by this Agreement,
(iii) will be for purposes reasonably satisfactory to the Issuing Bank and (iv)
will contain such terms and provisions as may be customarily required by the
Issuing Bank.
(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 any Borrower and, if not, the Issuing Bank will
provide the Agent with a copy thereof. Unless the Issuing Bank has received
notice prior to its 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 Article VIII 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 such Borrower 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 any Borrower received by the Issuing Bank (with a copy
sent by the Borrower to the Agent) at least three (3) days (or such shorter time
as the Issuing Bank may agree in particular instance in its sole discretion)
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. 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 Letter of Credit in its amended form 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 Banks 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 renew, and the
Borrowers and the Banks 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 Banks), 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.
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(g) This Agreement shall control in the event of any conflict
with any Letter of Credit-Related Document.
(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 Banks shall be deemed to, and hereby irrevocably and unconditionally agree
to, purchase from the Issuing Bank participation interests in such Letters of
Credit and each drawing thereunder, ratably in amounts equal to the product of
(i) each such Bank's Pro Rata Share of Acquisition Loan Commitments, and (ii)
the maximum amount available to be drawn under such Letter of Credit and the
amount of such drawing respectively. Each Issuance of a Letter of Credit shall
be deemed to utilize the Acquisition Loan Commitment of each Bank 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 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 Honor Date. The Company shall reimburse the Issuing Bank prior to
11:00 A.M., HOUSTON, TEXAS TIME, on each date that any amount is paid by the
Issuing Bank under any Letter of Credit (each such date, an "Honor Date") in an
amount equal to the amount so paid by the Issuing Bank. In the event the Company
fails to reimburse the Issuing Bank for the full amount of any drawing under any
Letter of Credit by 11:00 A.M., HOUSTON, TEXAS TIME, on the Honor Date, the
Issuing Bank will promptly notify the Agent and the Agent will promptly notify
each Bank thereof, and the Company shall be deemed to have requested an
Alternate Base Rate Loan be made by the Banks to be disbursed on the Honor Date
under such Letter of Credit, subject to the amount of the unutilized portion of
the Acquisition Loan Commitment and subject to the conditions set forth in
Article VIII. 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) The Banks shall, in accordance with their respective Pro
Rata Share of Acquisition Loan Commitments, upon any notice pursuant to Section
6.3(b) 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 Banks shall each be deemed to have made an Acquisition
Loan consisting of an Alternate Base Rate Loan to the applicable Borrower in
that amount. If any Bank 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,
HOUSTON, TEXAS TIME, on the Honor Date, then interest shall accrue on such
Bank's obligation to make such payment, from the Honor Date to the
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date such Bank makes such payment, at the rate per annum equal to the Federal
Funds Rate in effect from time to time during such period. The Agent will
promptly give notice to each Bank of the occurrence of the Honor Date, but
failure of the Agent to give any such notice on the Honor Date or in sufficient
time to enable any Bank to effect such payment on such date shall not relieve
such Bank from its obligations under this Section 6.3.
(d) With respect to any unreimbursed drawing that is not
converted into an Alternate Base Rate Loan to the Company in whole or in part,
because of failure of the Company to satisfy the conditions set forth in Article
VIII or for any other reason, the Company shall be deemed to have incurred from
the Issuing Bank a Letter of Credit Borrowing in the amount of such drawing,
which Letter of Credit Borrowing 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 two percent (2%) per annum, and each Bank's payment to
the Issuing Bank pursuant to Section 6.3(b) shall be deemed payment in respect
of its participation in such Letter of Credit Borrowing and shall constitute a
Letter of Credit Advance from such Bank in satisfaction of its participation
obligation under this Section 6.3.
(e) Each Bank's obligation in accordance with this Agreement
to make Acquisition Loans or Letter of Credit Advances, as contemplated by this
Section 6.3, as a result of a drawing under the 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 Bank 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; provided, however, that each
Bank's obligation to make Acquisition Loans under this Section 6.3 is subject to
the conditions set forth in Article VIII.
SECTION 6.4 Repayment of Participation.
(a) When the Agent receives (and only if the Agent receives),
for the account of the Issuing Bank, immediately available funds from the
Borrowers (i) in respect of which any Bank has paid the Agent for the account of
the Issuing Bank for such Bank's participation in the Letter of Credit Advance
pursuant to Section 6.3 or (ii) in payment of interest thereon, the Agent will
pay to each Bank, 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
Bank and the Issuing Bank shall receive and retain the amount of such funds
attributable to any Bank 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 Borrowers to the Agent for the account of the Issuing Bank pursuant to
Section 6.4(a) in reimbursement of a payment made under the Letter of Credit
Advance or interest thereon, each of the Banks shall, on demand of the Agent, in
accordance with each Bank's
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Pro Rata Share of Acquisition Loan Commitments, forthwith return to the Agent or
the Issuing Bank the amount so returned by the Agent or the Issuing Bank plus
interest thereon from the date such demand is made to the date such amounts are
returned by such Bank to the Agent or the Issuing Bank, at a rate per annum
equal to the Federal Funds Rate in effect from time to time.
SECTION 6.5 Role of the Issuing Bank.
(a) Each Bank and each Borrower agree that, in paying any
drawing under a Letter of Credit, the Issuing Bank shall not have any
responsibility to obtain any document (other than any sight draft, certificates
and other documents, if any, expressly required by the Letter of Credit) or to
ascertain or inquire as to the validity or accuracy of any such document or the
authority of the Person executing or delivering any such document.
(b) Neither the Issuing Bank nor any of its correspondents,
participants or assignees shall be liable to any Bank for: (i) any action taken
or omitted in connection herewith at the request or with the approval of the
Banks (including the Required Banks, as applicable); (ii) any action taken or
omitted in the absence of gross negligence or willful misconduct; or (iii) the
due execution, effectiveness, validity or enforceability of any Letter of
Credit-Related Document.
(c) The Borrowers hereby assume all risks of the acts or
omissions of any beneficiary or transferee with respect to its use of any Letter
of Credit; provided, however, that this assumption is not intended to, and shall
not, preclude any Borrower from pursuing such rights and remedies as it may have
against the beneficiary or transferee at law or under any other agreement or
assume risks or losses arising out of the gross negligence, bad faith or wilful
misconduct of the Issuing Bank. Neither the Issuing Bank, nor any
correspondents, participants or assignees of the Issuing Bank, shall be liable
or responsible for any of the matters described in clauses (i) through (vii) of
Section 6.6; provided, however, that any Borrower may have a claim against the
Issuing Bank, and the Issuing Bank may be liable to such Borrower, to the
extent, but only to the extent, of any direct, as opposed to consequential or
exemplary, damages suffered or incurred by such Borrower(s) which are caused by
the Issuing Bank's willful misconduct or gross negligence (i) in failing to pay
under any Letter of Credit after the presentation to it by the beneficiary of a
sight draft, certificate(s) and any other documents, if any, strictly complying
with the terms and conditions of such Letter of Credit, (ii) in its paying under
a Letter of Credit against presentation of a sight draft, certificate(s) or
other documents not complying with the terms of such Letter of Credit or (iii)
its failure to comply with the obligations imposed upon it, as an issuing bank,
under applicable state law; provided, however, that (y) the Issuing Bank may
accept documents that appear on their face to be in order, without
responsibility for further investigation, regardless of any notice or
information to the contrary, and (z) the Issuing Bank shall not be responsible
for the validity or sufficiency of any instrument transferring or assigning or
purporting to transfer or assign a Letter of Credit or the rights or benefits
thereunder or proceeds thereof, in whole or in part, which may prove to be
invalid or ineffective for any reason, provided that any such instrument appears
on its face to be in order.
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SECTION 6.6 Obligations Absolute. The Obligations of the Borrowers
under this Agreement and any Letter of Credit-Related Document to reimburse the
Issuing Bank for a drawing under a Letter of Credit, and to repay any Letter of
Credit Borrowing and any drawing under a Letter of Credit converted into an
Acquisition Loan, shall be unconditional and irrevocable, and shall be paid
strictly in accordance with the terms of this Agreement and each such other
Letter of Credit-Related Document under all circumstances, including the
following: (i) any lack of validity or enforceability of this Agreement or any
Letter of Credit-Related Document; (ii) 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
Borrower in respect of any Letter of Credit, (iii) the existence of any claim,
set-off, defense or other right that any Borrower may have at any time against
any beneficiary or any such transferee of any Letter of Credit (or any Person
for whom any such beneficiary or any such transferee may be acting), the Issuing
Bank or any other Person, whether in connection with this Agreement, the
transactions contemplated hereby or by the Letter of Credit-Related Documents or
any unrelated transaction other than the defense of payment or claims arising
out of the gross negligence, bad faith or wilful misconduct of the Floor Plan
Agent or the Swing Line Bank; (iv) any draft, demand, certificate or other
document presented under any Letter of Credit proving to be forged, fraudulent,
invalid or insufficient in any respect or any statement therein being untrue or
inaccurate in any respect; or any loss or delay in the transmission or otherwise
of any document required in order to make a drawing under any Letter of Credit;
(v) any payment by the Issuing Bank under any Letter of Credit against
presentation of a draft or certificate that does not strictly comply with the
terms of any Letter of Credit; or any payment made by the Issuing Bank under any
Letter of Credit 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 Letter of Credit,
including any arising in connection with any Insolvency Proceeding; (vi) any
exchange, release or non-perfection of any Collateral, or any release or
amendment or waiver of or consent to departure from any other guarantee, for all
or any of the Obligations of any Borrower in respect of any Letter of Credit; or
(vii) any other circumstance that might otherwise constitute a defense available
to, or discharge of, any Borrower.
SECTION 6.7 Letter of Credit Fees.
(a) Letter of Credit Fees. The Company shall pay to the Agent
for the account of each of the Banks a letter of credit fee (the "Letter of
Credit Fees") with respect to outstanding Letters of Credit equal to the greater
of: (i) $500, or (ii) the Applicable Margin for Eurodollar Loans which are
Acquisition Loans multiplied by the average daily maximum amount available to be
drawn on such outstanding Letters of Credit.
(b) Fronting Fees. The Company shall pay to the Issuing Bank
for its own account a letter of credit fronting fee (the "Fronting Fees") for
each Letter of Credit Issued by the Issuing Bank equal to one hundred
twenty-five-one-thousandths percent (0.125%) per annum multiplied by the average
daily maximum amount available to be drawn on such outstanding Letters of
Credit.
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(c) Calculation of Fees. The Letter of Credit Fees and the
Fronting Fees each shall be computed on a quarterly basis in arrears on the last
Business Day of each calendar quarter based upon Letters of Credit outstanding
for that quarter as calculated by the Agent (computed on the basis of the actual
number of days elapsed over a year of 360 days). Such fees shall be due and
payable quarterly in arrears on the last Business Day of each calendar quarter
during which Letters of Credit are outstanding, commencing on the first such
quarterly date to occur after the Closing Date, through the Maturity Date, with
the final payment to be made on the Maturity Date.
(d) Other. The Company shall pay to the Issuing Bank from time
to time on demand the normal issuance, presentation, amendment and other
processing fees, and other standard costs and charges of the Issuing Bank
relating to Letters of Credit as from time to time in effect.
SECTION 6.8 Cash Collateralization.
(a) If any Event of Default shall occur and be continuing, or
the Acquisition Loan Commitment is terminated or reduced to an amount
insufficient to fund the outstanding Letter of Credit Obligations, the Company
agrees that it shall on the Business Day it receives notice from the Agent,
acting upon instructions of the Required Banks, deposit in an account (the "Cash
Collateral Account") held by the Agent, for the benefits of the Banks, an amount
of cash equal to the Letter of Credit Obligations as of such date. Such deposit
shall be held by the Agent as Collateral for the payment and performance of the
Obligations. The Agent shall have exclusive dominion and control, including
exclusive right of withdrawal, over such account. Cash Collateral shall be held
in a blocked, interest-bearing account held by the Agent upon such terms and in
such type of account as customary at the depository institution. The Company
shall pay any fees charged by the Agent which fees are of the type customarily
charged by such institution with respect to such accounts. Moneys in such
account shall (i) be applied by the Agent to the payment of Letter of Credit
Borrowings and interest thereon, (ii) be held for the satisfaction of the
reimbursement Obligations of the Borrowers in respect of Letters of Credit, and
(iii) in the event the maturity of the Loans has been accelerated, with the
consent of the Required Banks, be applied to satisfy the Obligations. If the
Company shall provide Cash Collateral under this Section 6.08(a) or shall prepay
any Letter of Credit and thereafter either (i) drafts or other demands for
payment complying with the terms of such Letters of Credit are not made prior to
the respective expiration dates thereof, or (ii) such Event of Default shall
have been waived or cured, then the Agent, the Floor Plan Agent, the Swing Line
Bank and the Banks agree that the Agent is hereby authorized, without further
action by any other Person, to release the Lien in such cash and will direct the
Agent to remit to the Company amounts for which the contingent obligations
evidenced by such Letters of Credit have ceased.
(b) As security for the payment of all Obligations, each
Borrower hereby grants, conveys, assigns, pledges, sets over and transfers to
the Agent, and creates in the Agent's favor a Lien on, and security interest in,
all money, instruments and securities at any time held in or acquired in
connection with the Cash Collateral Account, together with all proceeds thereof.
At any time and from time to time, upon the Agent's request, each Borrower
promptly shall execute and deliver any and all such further instruments and
documents as may be reasonably necessary, appropriate or desirable in the
Agent's judgment to obtain the full benefits (including perfection and
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priority) of the security interest created or intended to be created by this
Section 6.8(b) and of the rights and powers herein granted.
ARTICLE VII
REPRESENTATIONS AND WARRANTIES
The Company, as to itself and as to all of the other Borrowers and each
of the Borrowers other than the Company, as to itself and its Subsidiaries only,
represent and warrant to the Agent, the Floor Plan Agent, the Swing Line Bank
and the Banks as follows:
SECTION 7.1 Organization; Corporate Powers. The Company and each of its
Subsidiaries is duly organized, validly existing and in good standing under the
laws of the state of its respective incorporation or organization, has the
requisite power and authority, governmental licenses, consents and approvals to
own its property and assets and to carry on its business as now conducted and is
qualified to do business in every jurisdiction where such qualification is
required and is in compliance with all Requirements of Law except where the
failure to so qualify or comply could not reasonably be expected to have a
Material Adverse Effect. Each Borrower and each of their Subsidiaries has the
corporate power to execute, deliver and perform its Obligations under this
Agreement and the other Loan Documents to which it is a party, to borrow
hereunder and to execute and deliver the Notes and the Swing Ling Note.
SECTION 7.2 Authorization. The execution, delivery and performance of
this Agreement and the Loan Documents, the Borrowings hereunder, and the
execution and delivery of the Notes and the Swing Line Note by the Borrowers,
the issuance of Letters of Credit and Drafting Agreements hereunder and the use
of the proceeds of the Borrowings (a) have been duly authorized by all requisite
corporate and, if required, stockholder action on the part of the Company and
each Subsidiary and (b) will not (i) violate (A) any provision of law, statute,
rule or regulation or the certificate of incorporation or the bylaws of the
Company or any Subsidiary, (B) any order of any court, or any rule, regulation
or order of any other agency of government binding upon the Company or any
Subsidiary or (C) any provisions of any indenture, agreement or other instrument
to which the Company or any of its Subsidiaries is a party, or by which the
Company or any Subsidiary or any of their respective properties or assets are or
may be bound which violation could reasonably be expected to have a Material
Adverse Effect, (ii) be in conflict with, result in a breach of or constitute
(alone or with notice or lapse of time or both) a default under any indenture,
agreement or other instrument referred to in (b)(i)(C) above which violation
could reasonably be expected to have a Material Adverse Effect or (iii) result
in the creation or imposition of any Lien whatsoever upon any property or assets
of the Company or any of its Subsidiaries.
SECTION 7.3 Governmental Approval. No registration with, or consent or
approval of, or other action by, any federal, state or other Governmental
Authority is or will be required in connection with the execution, delivery and
performance of this Agreement, any other Loan
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Document, the execution and delivery of the Notes and the Swing Line Note or
repayment of the Borrowings hereunder.
SECTION 7.4 Enforceability. This Agreement and each of the Loan
Documents have been duly executed and delivered by each of the Borrowers and
each of their Subsidiaries which is a party thereto and constitute legal, valid
and binding obligations of the Borrowers and such Subsidiaries, and the Notes,
and the Swing Line Note, when duly executed and delivered by each applicable
Borrower, will constitute legal, valid and binding Obligations of such
Borrower(s), in each case enforceable in accordance with their respective terms
(subject, as to the enforcement of remedies, to applicable bankruptcy,
reorganization, insolvency, moratorium and similar laws affecting creditors'
rights generally and general principles of equity).
SECTION 7.5 Financial Statements.
(a) The audited consolidated financial statements of the
Company and each of its Subsidiaries, as of December 31, 1998, copies of which
have been furnished to the Banks, have been prepared in conformity with
generally accepted accounting principles applied on a basis consistent with that
of the preceding fiscal year, and present fairly the financial condition of the
Company and each of its Subsidiaries, as at such date and the consolidated
results of the operations of the Company and each of its Subsidiaries for the
period then ended.
(b) The Form 10-K of the Company for the fiscal year ended
December 31, 1998, copies of which have been furnished to the Banks, have been
prepared in accordance with all applicable rules, regulations and guidelines of
the Securities and Exchange Commission and present fairly the financial
condition of the Company and each of its Subsidiaries, as at such dates and the
results of their operations for the periods then ended, subject to year-end
audit adjustments.
SECTION 7.6 No Material Adverse Change. There has been no material
adverse change in the businesses, assets, operations, prospects or condition,
financial or otherwise, as determined on a consolidated basis, of the Company or
any of its Subsidiaries, since December 31, 1998.
SECTION 7.7 Title to Properties; Security Documents.
(a) Each Borrower and each of their respective Subsidiaries
has good and marketable title to, or valid leasehold interests in, all its
properties and assets, including, without limitation, those properties and
assets which constitute real property as specified in Schedule IV (which
Schedule specifies the owner of, current leases (if any) of, and general
description of each individual property or asset listed therein), except for (i)
such properties as are no longer used or useful in the conduct of its business
or as have been disposed of in the ordinary course of business, (ii) Liens
permitted by Section 7.16, Section 10.2, and Section 10.19, and (iii) minor
defects in title that do not interfere with the ability of such Borrower or such
Subsidiary to conduct its business as now conducted.
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(b) The Security Documents contain descriptions of the
Collateral sufficient to grant to the Agent for the benefit of Banks, perfected
Liens therein pursuant to applicable law and the terms, provisions and
conditions of this Agreement.
SECTION 7.8 Litigation; Compliance with Laws; Etc.
(a) There are no actions, suits or proceedings, except as
specified in Schedule V, at law or in equity or by or before any Governmental
Authority now pending or, to the knowledge of any of the Borrowers or any of
their respective Subsidiaries, threatened against or affecting any of the
Borrowers or any of their respective Subsidiaries or the business, assets or
rights of any of the Borrowers or any of their respective Subsidiaries as to
which there is a reasonable possibility of an adverse determination and which,
if adversely determined, could, individually or in the aggregate, reasonably to
be expected to have a Material Adverse Effect.
(b) None of the Borrowers and none of their respective
Subsidiaries is (i) in violation of any law, the breach or consequence of which
could reasonably be expected to have a Material Adverse Effect and to the best
knowledge of the Company and its Subsidiaries after due investigation, the
Company and each of its Subsidiaries are in material compliance with all
statutes and governmental rules and regulations applicable to them, or (ii) in
default under any material order, writ, injunction, award or decree of any
Governmental Authority binding upon it or its assets or any material indenture,
mortgage, contract, agreement or other undertaking or instrument to which it is
a party or by which any of its properties may be bound, which default could
reasonably be expected to have a Material Adverse Effect, and nothing has
occurred which would materially and adversely affect the ability of any Borrower
to carry on its business as now conducted or perform its obligations under any
such order, writ, injunction, award or decree or any such material indenture,
mortgage, contract, agreement or other undertaking or instrument.
SECTION 7.9 Agreements; No Default.
(a) None of the Borrowers and none of their respective
Subsidiaries is a party to any agreement or instrument or subject to any
corporate restriction reasonably to be expected to have a Material Adverse
Effect.
(b) No Event of Default has occurred and is continuing.
SECTION 7.10 Federal Reserve Regulations.
(a) Neither the Company nor any of its Subsidiaries is engaged
principally, or as one of its important activities, in the business of extending
credit for the purpose of purchasing or carrying Margin Stock.
(b) No part of the proceeds of the Loans will be used, whether
directly or indirectly, and whether immediately, incidentally or ultimately, (i)
to purchase or carry Margin Stock
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or to extend credit to others for the purpose of purchasing or carrying Margin
Stock or to refund indebtedness originally incurred for such purpose, or (ii)
for any purpose which entails a violation of, or which is inconsistent with, the
provisions of the Regulations of the Board, including Regulations T, U or X;
provided, however, the Company may acquire Margin Stock if, upon the acquisition
of such Margin Stock, twenty-five percent (25%) or less of the Company's total
assets subject to the restrictions set forth in Section 10.1 would then be
composed of Margin Stock, and the Company shall furnish to the Agent upon its
request, a statement in conformity with the requirements of Federal Reserve Form
U-1 referred to in Regulation U.
SECTION 7.11 Taxes. The Company and each of its Subsidiaries has filed
all tax returns which are required to have been filed and has paid, or made
adequate provisions for the payment of, all of its taxes which are due and
payable, except such taxes, if any, as are being contested in good faith and by
appropriate proceedings and as to which such reserves or other appropriate
provisions as may be required by generally accepted accounting principles have
been maintained. Neither the Company nor any of its Subsidiaries is aware of any
proposed assessment against it for additional taxes (or any basis for any such
assessment) which might be material to the Company or such Subsidiary.
SECTION 7.12 Pension and Welfare Plans. Each Plan complies in all
respects with all applicable statutes and governmental rules and regulations
except where the failure to comply could not reasonably be expected to have a
Material Adverse Effect, and: (a) no Reportable Event has occurred and is
continuing with respect to any Plan, (b) since December 31, 1998, neither the
Company nor any ERISA Affiliate has withdrawn from any Plan or instituted steps
to do so, except as listed on Schedule VI and (c) since December 31, 1998, no
steps have been instituted to terminate any Plan, except as listed on Schedule
VI. No condition exists or event or transaction has occurred in connection with
any Plan which could result in the incurrence by the Company or any ERISA
Affiliate of any liability, fine or penalty which could reasonably be expected
to have a Material Adverse Effect. Neither the Company nor any ERISA Affiliate
is a member of, or contributes to, any multiple employer Plan as described in
Section 4064 of ERISA. None of the Borrowers has any contingent liability with
respect to any post-retirement "welfare benefit plans," as such term is defined
in ERISA.
SECTION 7.13 No Material Misstatements. Neither this Agreement, the
other Loan Documents, the Confidential Information Memorandum nor any other
document delivered by or on behalf of the Company or any Subsidiary in
connection with any Loan Document or included therein contained or contains any
material misstatement of fact or omitted or omits to state any material fact
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading.
SECTION 7.14 Investment Company Act; Public Utility Holding Company
Act. Neither the Company nor any of its Subsidiaries is an "investment company"
or company "controlled" by an investment company as defined in, or subject to
regulation under, the Investment Company Act of
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1940. Neither the Company nor any of its Subsidiaries is a "holding company" as
defined in, or subject to regulation under, the Public Utility Holding Company
Act of 1935.
SECTION 7.15 Maintenance of Insurance. The Company and each of its
Subsidiaries agree to maintain insurance to such extent and against such hazards
and liabilities as is commonly maintained by companies similarly situated.
SECTION 7.16 Existing Liens. None of the assets of the Company or any
Subsidiary is subject to any Lien, except:
(a) Liens for current taxes not delinquent or taxes being
contested in good faith and by appropriate proceedings and as to which such
reserves or other appropriate provisions as may be required by generally
accepted accounting principles are being maintained;
(b) carriers', warehousemen's, mechanics', materialmen's and
other like statutory Liens arising in the ordinary course of business securing
obligations which are not overdue for a period of more than ninety (90) days or
which are being contested in good faith and by appropriate proceedings and as to
which such reserves or other appropriate provisions as may be required by
generally accepted accounting principles are being maintained;
(c) pledges or deposits in connection with workers'
compensation, unemployment insurance and other social security legislation;
(d) deposits to secure the performance of bids, trade
contracts, leases, statutory obligations, and other obligations of a like nature
incurred in the ordinary course of business, and Liens securing reimbursement
obligations created by open letters of credit for the purchase of inventory;
(e) Liens granted by a Subsidiary of the Company to secure
such Subsidiary's Indebtedness to the Company or to any other Subsidiary of the
Company;
(f) Liens, if any, disclosed in the financial statements
referred to in Section 7.5; and
(g) Liens listed on Schedule VII as permitted by Section 10.2.
SECTION 7.17 Environmental Matters. Each Borrower has complied in all
respects with all applicable federal, state, local and other statutes,
ordinances, orders, judgments, rulings and regulations relating to environmental
pollution or to environmental regulation or control except where the failure to
comply could not reasonably be expected to have a Material Adverse Effect.
Neither the Company nor any of its Subsidiaries has received notice of any
failure so to comply which alone or together with any other such failure could
reasonably be expected to have a Material Adverse Effect. Neither the Company,
any of its Subsidiaries nor any of its facilities manages any
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hazardous wastes, hazardous substances, hazardous materials, toxic substances or
toxic pollutants, as those terms are used in the Resource Conservation and
Recovery Act, the Comprehensive Environmental Response Compensation and
Liability Act, the Hazardous Materials Transportation Act, the Toxic Substance
Control Act, the Clean Air Act or the Clean Water Act, in violation of any
regulations promulgated pursuant thereto or in any other applicable law where
such violation could reasonably be expected to have, individually or together
with other violations, a Material Adverse Effect.
SECTION 7.18 Subsidiaries. As of the Closing Date, the Company has no
Subsidiaries, and no Subsidiary has a Subsidiary other than those specifically
disclosed in part (a) of Schedule VIII, and neither the Company nor any
Subsidiary has any equity investments in any other corporation or entity other
than those specifically disclosed in part (b) of Schedule VIII. The state of
incorporation, address, principal place of business and a list of other business
locations for each Subsidiary is specified in part (a) of Schedule VIII. The
Company and/or each of its Subsidiaries is the owner, directly or indirectly,
free and clear of all Liens (except for Liens in favor of the Agent and the
Banks and transfer restrictions contained in the Dealer Franchise Agreements),
of all of the issued and outstanding voting stock of each Subsidiary disclosed
on Schedule VIII (except where ownership of less than one hundred percent (100%)
is indicated on Schedule VIII). All shares of such stock have been validly
issued and are fully paid and nonassessable, and no rights to subscribe to
additional shares have been granted or exist.
SECTION 7.19 Engaged in Motor Vehicle Sales. The Floor Plan Borrowers
are engaged in the business of selling new and/or Used Motor Vehicles; all such
Motor Vehicles consist solely of goods held by the Borrowers for sale; no sales
or other transactions involving such Motor Vehicles are and will not become
subject to set-off, counterclaim, defense, allowance, or adjustment (other than
warranty claims, the aggregate amount of which shall not be material); except as
set forth in Schedule VII, as of the Closing Date, there is no financing
statement, or similar statement or instrument of registration under the laws of
any jurisdiction, covering or purporting to cover any interest of any kind in
all such Motor Vehicles or their proceeds on file or registered in any public
office other than a financing statement in favor of the Agent for the benefit of
the Banks covering all such Motor Vehicles; except as set forth in Schedule VII,
as of the Closing Date, there is no other floor plan or other financing
arrangement with any party other than the Agent for the benefit of the Banks
with respect to all such Motor Vehicles; and except as set forth in Schedule
VII, as of the Closing Date, none of the Borrowers has made any other verbal or
written contract or arrangement of any kind, the performance of which by the
other party thereto would give rise to a Lien against any such Motor Vehicle, or
the proceeds thereof; all such Motor Vehicles are free from damage caused by
fire or other casualty, unless covered by insurance, subject to customary
deductibles. The locations (and addresses) set forth in Schedule IV are the
locations at which the Company and its Subsidiaries keep the Motor Vehicles held
as inventory, except when such Motor Vehicles may be in transit between
locations, in transit for 'dealer swaps' or being test driven by potential
customers. The addresses set forth in Schedule IV are each Floor Plan Borrower's
place of business if such Person has only one such place of business; or a Floor
Plan Borrower's chief executive office if it has more than one place of
business. All of each Floor Plan Borrower's books and records with
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regard to all Motor Vehicles are maintained and kept at the address(es) of such
Floor Plan Borrower set forth in Schedule IV.
SECTION 7.20 Dealer Franchise Agreements. As of the Closing Date, none
of the Borrowers is a party to any dealer franchise agreements ("Dealer
Franchise Agreements") other than those specifically disclosed in Schedule IX,
which schedule shows the Manufacturer and the Borrower which is a party to each
such agreement, the date such agreement was entered into and the expiration date
(if any) of each such agreement. Each of the Dealer Franchise Agreements is
currently in full force and effect, and no Borrower has received any notice of
termination with respect to any such agreements; and, except as disclosed on
Schedule IX, no Borrower is aware of any event which with notice, lapse of time,
or both would allow any Manufacturer which is a party to any of the Dealer
Franchise Agreements to terminate any such agreements. There exists no actual or
threatened termination, cancellation, or limitation of, or any modification or
change in, the business relationship between any Borrower and any customer or
any group of customers whose purchases individually or in the aggregate are
material to the business of such Borrower, or with any material Manufacturer,
and there exists no present condition or state of facts or circumstances which
could reasonably be expected to have a Material Adverse Effect.
SECTION 7.21 Year 2000 Requirement. Any reprogramming required to
permit the proper functioning, in and following the year 2000, of (i) the
Borrowers' computer systems and (ii) equipment containing embedded microchips
(including systems and equipment supplied by others or with which Borrowers'
systems interface) and the testing of all such systems and equipment, as so
reprogrammed, will be completed by October 1, 1999. The cost to the Borrowers of
such reprogramming and testing and of the reasonably foreseeable consequences of
year 2000 to the Borrowers (including, without limitation, reprogramming errors
and the failure of others' systems or equipment) will not result in a Default or
a Material Adverse Effect. Except for such of the reprogramming referred to in
the preceding sentence as may be necessary, the computer and management
information systems of the Borrowers are and, with ordinary course upgrading and
maintenance, will continue for the term of this Agreement to be, sufficient to
permit the Borrowers to conduct their businesses without Material Adverse
Effect.
ARTICLE VIII
CONDITIONS OF LENDING
SECTION 8.1 Conditions Precedent to Closing Date. The Closing Date
shall be deemed to have occurred when the following conditions precedent shall
have occurred and the Agent shall have received on or before such date the
following, each dated (unless otherwise indicated) the Closing Date and, with
respect to all such documents referred to in Section 8.1(a), Section 8.1(c),
Section 8.1(d), Section 8.1(e), Section 8.1(f), Section 8.1(g), Section 8.1(h)
and Section 8.1(i) in sufficient copies for each Bank:
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(a) A counterpart of this Agreement (to which all of the
Exhibits and Schedules have been attached) executed by the Borrowers, the Agent,
the Floor Plan Agent, the Swing Line Bank and the Banks.
(i) Notes of the Borrowers dated the Closing
Date, properly executed by the Borrowers to the order of the
Banks, respectively.
(ii) The Swing Line Note, dated the Closing Date,
properly executed by the Floor Plan Borrowers to the order of
the Swing Line Bank.
(b) Counterparts of each of the following:
(i) a Security Agreement substantially in the
form set forth in Exhibit F, dated as of the Closing Date or
an earlier date;
(ii) an Escrow and Security Agreement in the form
set forth in Exhibit D, dated as of the Closing Date or an
earlier date;
(iii) if required by Agent, Landlord Lien Waivers
in substantially the form set forth in Exhibit N, with respect
to all real property leased by any of the Borrowers other than
Phase 1 Borrowers;
(iv) GM Borrower Guaranty, in substantially the
form set forth in Exhibit L dated as of the Closing Date or an
earlier date, properly executed by each of the GM Borrowers.
(v) Any other necessary Security Documents in the
form satisfactory to the Agent and its Counsel;
each of which, if required by this Agreement, shall be duly executed by the
parties thereto; provided, however, the Obligations secured by the Security
Documents executed by the GM Borrowers and the Ford Borrowers and the Collateral
described therein may be limited, respectively, to the GM Borrower Liability
Amount and the Ford Borrower Liability Amount.
(c) The Agent shall have received from Bob Howard
Automotive-East, Inc., Mike Smith Motors, Inc., Sunshine Buick Pontiac GMC
Truck, Inc., Mike Smith Imports, Inc., Group 1 Realty, Inc., GPI Atlanta, Inc.
and Mike Smith Autoplex-A, Inc. (collectively, the "Addendum Borrowers"), the
following: (i) a certificate of existence of each Addendum Borrower and a
certificate of authority to do business as a foreign corporation in each state
in which the Addendum Borrower maintains activities which require such
certification, certified by the Secretary of State of such state, and a
certificate as to the good standing of each Addendum Borrower from the
Comptroller or other official state official responsible for the delivery of
such certification; (ii) a certificate of the Secretary, Assistant Secretary, or
General Partner, as applicable, of each Addendum
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Borrower, dated the Closing Date and certifying (A) that attached thereto is a
true and complete copy of its articles of incorporation or certificate of
limited partnership, and amendments thereto, and bylaws or partnership
agreement, and amendments thereto, as in effect on the date of such certificate,
(B) that attached thereto is a true and complete copy of resolutions or
unanimous consent duly adopted by its Board of Directors or Partners authorizing
the execution, delivery and performance of the Agreement, Notes, the Swing Line
Note and/or Loan Documents to which it is a party or any other document
delivered in connection herewith or therewith on or prior to the Closing Date,
and that such resolutions have not been modified, rescinded or amended and are
in full force and effect, and (C) as to the incumbency and specimen signature of
each officer of each Addendum Borrower executing this Agreement, the Notes, the
Swing Line Note, any of the Loan Documents or any other document delivered in
connection herewith or therewith on or prior to the Closing Date; (iii) a
certificate of another officer of each Borrower, which is a party to this
Agreement, the Notes, the Swing Line Note and/or any of the Loan Documents as to
the incumbency and specimen signature of the Secretary or such Assistant
Secretary of such Person; and (iv) such other documents as Jackson Walker
L.L.P., special counsel for the Agent, may reasonably request including the
following:
(i) Lease Agreement between Bob Howard
Automotive-East, Inc. and Taco Properties, L.L.C.
(ii) Lease Agreement between Jim Tidwell Ford,
Inc. and James J. Tidwell.
(iii) Leasehold Deed of Trust duly executed by
Jim Tidwell Ford, Inc.
(d) The Banks shall have received from each Borrower, other
than the Addendum Borrowers, (i) a certificate of the Secretary or an Assistant
Secretary of the Company and each of its Subsidiaries, other than the Addendum
Borrowers, dated the Closing Date, certifying that (A) the certificate of
incorporation or certificate of limited partnership and by-laws or partnership
agreement, as applicable, of the Company and each of its Subsidiaries Borrower,
other than the Addendum Borrowers, delivered to the Bank in connection with the
Second Amended and Restated Credit Agreement have not been amended, (B) attached
thereto is a true and complete copy of resolutions or unanimous consent duly
adopted by its Board of Directors or partners authorizing the execution,
delivery and performance of this Agreement, the Notes, the Swing Line Note
and/or Loan Documents to which it is a party, and that such resolutions have not
been modified, rescinded or amended and are in full force and effect, and (C) as
to the incumbency and specimen signature of each officer of each Borrower
executing this Agreement, the Notes, the Swing Line Note, any of the Loan
Documents or any other document delivered in connection herewith or therewith;
(ii) a certificate of another officer of each Borrower, which is a party to this
Agreement, the Notes, the Swing Line Note and/or any of the Loan Documents as to
the incumbency and specimen signature of the Secretary or such Assistant
Secretary of such Person; and (iii) such other documents as Jackson Walker
L.L.P., special counsel for the Agent, may reasonably request.
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(e) A certificate of a Senior Vice President, an Executive
Vice President or a Vice President of each Borrower dated the Closing Date
certifying (i) the truth of the representations and warranties made by such
Borrower in this Agreement, and (ii) the absence of the occurrence and
continuance of any Default or Event of Default.
(f) The Agent shall have received the Agent's Letter duly
executed by the Company.
(g) The Floor Plan Agent shall have received the Floor Plan
Agent's Letter duly executed by the Company.
(h) The opinion of counsel to the Borrowers and any Subsidiary
which signs any of the Loan Documents, dated the Closing Date, addressed to the
Agent and the Banks and in the form of Exhibit H hereto.
(i) An Administrative Questionnaire completed by each Bank
and, if required, the tax forms set forth in Section 5.14.
(j) The fees and disbursements required to be paid by the
Company pursuant to Section 5.4 and 13.4 on the Closing Date shall have been
paid.
(k) UCC Filings. All UCC-1 filings and other Liens not
permitted pursuant to this Agreement which are existing or reflected in searches
performed by the Agent or its counsel as of the Closing Date shall have been
released and/or terminated to the satisfaction of the Agent and its counsel.
SECTION 8.2 Conditions Precedent to Initial Borrowing.
(a) The date on which the obligation of each Bank to make the
initial Acquisition Loans, or of the Issuing Bank to issue any Letter of Credit
(the "Acquisition Funding Date")to the Company shall be deemed to have occurred
and is subject to the conditions precedent that:
(i) Each document (including, without limitation,
any UCC financing statement) required by the Security
Documents or under law or requested by Agent to be filed,
registered or recorded in order to create, in favor of Agent,
for the benefit of Banks, a perfected first Lien (subject to
any Permitted Liens) on the Collateral owned by the Company
shall have been properly filed, registered or recorded in each
jurisdiction in which the filing, registration or recordation
thereof is so required or requested, and the Agent, as herein
provided, shall have received an acknowledgment copy, or other
evidence satisfactory to it, of each such filing,
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registration or recordation and satisfactory evidence of the
payment of any necessary fee, tax or expense relating thereto;
and
(ii) Such other and further conditions shall have
been fulfilled as the Agent, or its counsel shall have
reasonably determined.
(b) The date on which the obligation of each Bank to make the
initial Floor Plan Loans or of the Swing Line Bank to make the initial Swing
Line Loan, or of the Floor Plan Agent to issue any Drafting Agreement ("each, a
Floor Plan Funding Date") to any Floor Plan Borrower shall be deemed to have
occurred and is subject to the condition precedent that :
(i) Each document (including, without limitation,
any UCC financing statement) required by the Security
Documents or under law or requested by Agent or the Floor Plan
Agent to be filed, registered or recorded in order to create,
in favor of Agent, for the benefit of Banks, a perfected first
Lien on the Collateral owned by such Floor Plan Borrower shall
have been properly filed, registered or recorded in each
jurisdiction in which the filing, registration or recordation
thereof is so required or requested, and the Agent or Floor
Plan Agent, as herein provided, shall have received an
acknowledgment copy, or other evidence satisfactory to it, of
each such filing, registration or recordation and satisfactory
evidence of the payment of any necessary fee, tax or expense
relating thereto;
(ii) The Floor Plan Agent shall have completed to
its' satisfaction any and all audits of Motor Vehicles owned
by or in transit to each such Floor Plan Borrower; and
(iii) The Company shall have delivered to the
Agent copies of substantially all Dealer Franchise Agreements
between Manufacturers and its Subsidiaries, which Dealer
Franchise Agreements have been duly executed between a
Manufacturer and such Subsidiary. For purposes of this
subsection, the term "substantially all" shall mean that the
Agent and the Floor Plan Agent shall be satisfied in their
sole determination that a sufficient amount of duly executed
Dealer Franchise Agreements have been delivered by the
Company.
(c) Such other and further conditions shall have been
fulfilled as the Agent, the Floor Plan Agent or its counsel shall have
reasonably determined.
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SECTION 8.3 Conditions Precedent to Each Borrowing. The obligation of
each Bank to make a Loan on the occasion of any Borrowing (including the initial
Acquisition Borrowing and the initial Floor Plan Borrowing) and the obligation
of the Issuing Bank to issue Letters of Credit and the obligation of the Swing
Line Bank to make Swing Line Loans and the obligation of the Floor Plan Bank to
issue Drafting Agreements shall be subject to the further conditions precedent
that on the Borrowing Date of such Borrowing or Issuance the Company shall
execute and deliver to the Agent a Borrowing Request and the following
statements shall be true (and the acceptance by any Borrower of the proceeds of
such Borrowing shall constitute a representation and warranty by the Company
that on the date of such Borrowing such statements are true):
(a) The representations and warranties contained in Article
VII are correct on and as of the date of such Borrowing, before and after giving
effect to such Borrowing and to the application of the proceeds therefrom, as
though made on and as of such date;
(b) No event has occurred and is continuing, or would result
from such Borrowing or from the application of the proceeds therefrom, which
constitutes either a Default or an Event of Default; and
(c) Following the making of such Borrowing or Issuance of any
Letter of Credit and all other Borrowings to be made on the same day under this
Agreement, except as may otherwise be permitted hereunder (i) if such Borrowing
is a Floor Plan Loan Borrowing, the aggregate principal amount of all Floor Plan
Loans outstanding plus all Swing Line Loans outstanding shall not exceed the
Floor Plan Loan Commitments of all the Banks, (ii) if such Borrowing is an
Acquisition Loan Borrowing, the aggregate principal amount of all Acquisition
Loans outstanding plus Letters of Credit Obligations outstanding shall not
exceed the Acquisition Loan Commitments of all the Banks, (iii) if such
Borrowing is a Swing Line Loan Borrowing, the aggregate principal amount of all
Swing Line Loans outstanding shall not exceed the Swing Line Commitment, (iv) if
a Letter of Credit is issued, the total amount of Letter of Credit outstanding
plus the aggregate principal amount of all Acquisition Loans outstanding shall
not exceed the Acquisition Loan Commitments of all the Banks, and (v) the
aggregate principal amount of all Loans and Letter of Credit Obligations then
outstanding shall not exceed the Total Commitments.
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SECTION 8.4 Conditions Precedent to Conversions and Continuations. The
obligation of the Banks to convert any existing Borrowing into a Eurodollar
Borrowing or to continue any existing Borrowing as a Eurodollar Borrowing is
subject to the condition precedent that on the date of such conversion or
continuation each of the conditions to Borrowing set forth in Section 8.3 shall
have been satisfied, and no Default or Event of Default shall have occurred and
be continuing or would result from the making of such conversion or
continuation. The acceptance of the benefits of each such conversion and
continuation shall constitute a representation and warranty by the Company to
each of the Banks that no Default or Event of Default shall have occurred and be
continuing or would result from the making of such conversion or continuation.
ARTICLE IX
AFFIRMATIVE COVENANTS
So long as this Agreement shall remain in effect or the principal of or
interest on any Note, the Swing Line Note, any Commitment Fees or any other fee,
expense or amount payable hereunder shall be unpaid and until the Commitments of
all the Banks shall expire or terminate, until no Letter of Credit Obligations
are outstanding, and until all Drafting Agreements are terminated, the Company,
as to itself and as to all of the other Borrowers and each of the Borrowers
other than the Company, as to itself and its Subsidiaries only, covenant and
agree with the Agent, the Floor Plan Agent, the Swing Line Bank and each Bank
that:
SECTION 9.1 Existence. The Company will maintain and preserve, and
except as permitted by Section 10.3, will cause each Subsidiary to maintain and
preserve, its respective existence and good standing under the laws of its state
of jurisdiction, as a corporation or other form of business organization, as the
case may be, and all rights, privileges, licenses, patents, patent rights,
copyrights, trademarks, trade names, franchises and other authority to the
extent material and necessary for the conduct of their respective businesses in
the ordinary course as conducted from time to time.
SECTION 9.2 Repair. The Company will maintain, preserve and keep, and
will cause each of its Subsidiaries to maintain, preserve and keep, all of its
properties in good repair, working order and condition (ordinary wear and tear
excepted), and the Company will make, and will cause each of the Subsidiaries to
make, all necessary and proper repairs, renewals, replacements, additions,
betterments and improvements thereto so that at all times the efficiency thereof
shall be fully preserved and maintained; the Company will at all times do or
cause to be done all things necessary to preserve, renew and keep in full force
and effect, and will cause each Subsidiary to do or cause to be done all things
necessary to preserve, renew and keep in full force and effect, the rights,
licenses, permits, franchises, patents, copyrights, trademarks and trade names
material to the conduct of its businesses; the Company and each of its
Subsidiaries will maintain and operate such businesses in substantially the
manner in which they are presently conducted and operated (subject to changes in
the ordinary course of business); the Company and each of its Subsidiaries will
comply with all laws and regulations applicable to the operation of such
businesses whether now in effect
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or hereafter enacted and with all other applicable laws and regulations except
where the failure to comply could not reasonably be expected to have a Material
Adverse Effect; and the Company and each of its Subsidiaries will take all
action which may be required to obtain, preserve, renew and extend all licenses,
permits and other authorizations which may be material to the operation of such
businesses.
SECTION 9.3 Insurance. The Company will maintain, on a consolidated
basis, insurance to such extent and against such hazards and liabilities as is
commonly maintained by companies similarly situated or as may be required in the
Security Documents including, without limitation with respect to Motor Vehicles
owned by Floor Plan Borrowers, naming the Agent, for the benefit of the Banks,
as Mortgagee (in connection with any real estate collateral), lender loss payee
and additional loss payee.
WARNING
UNLESS EACH BORROWER PROVIDES THE AGENT WITH EVIDENCE OF THE INSURANCE COVERAGE
AS REQUIRED BY THE AGREEMENT OR ANY OTHER LOAN DOCUMENT, THE AGENT (AT ITS
DISCRETION, OR ACTING AT THE REQUEST OF THE FLOOR PLAN AGENT) MAY PURCHASE
INSURANCE AT THE BORROWER'S EXPENSE TO PROTECT THE BANKS' INTEREST. THIS
INSURANCE MAY, BUT NEED NOT, ALSO PROTECT THE BORROWER'S INTEREST. IF THE
COLLATERAL BECOMES DAMAGED, THE COVERAGE THE AGENT PURCHASES MAY NOT PAY ANY
CLAIM ANY BORROWER MAKES OR ANY CLAIM MADE AGAINST THE BORROWER. EACH BORROWER
MAY LATER CANCEL THIS COVERAGE BY PROVIDING EVIDENCE THAT THE BORROWER HAS
OBTAINED PROPERTY COVERAGE ELSEWHERE.
EACH BORROWER IS RESPONSIBLE FOR THE COST OF ANY INSURANCE PURCHASED BY
THE AGENT. THE COST OF THIS INSURANCE MAY BE ADDED TO THE OBLIGATIONS. IF THE
COST IS ADDED TO THE OBLIGATIONS, THE INTEREST RATE PROVIDED IN SECTION 5.3
SHALL APPLY TO SUCH ADDED AMOUNT. THE EFFECTIVE DATE OF COVERAGE MAY BE THE DATE
ANY BORROWER'S PRIOR COVERAGE LAPSED OR THE DATE THE BORROWER FAILED TO PROVIDE
PROOF OF COVERAGE.
THE COVERAGE THE AGENT PURCHASES MAY BE CONSIDERABLY MORE EXPENSIVE
THAN INSURANCE ANY BORROWER CAN OBTAIN ON ITS OWN AND MAY NOT SATISFY ANY NEED
FOR PROPERTY DAMAGE COVERAGE OR ANY MANDATORY LIABILITY INSURANCE REQUIREMENTS
IMPOSED BY APPLICABLE LAW.
SECTION 9.4 Obligations and Taxes. The Company will pay and discharge
and will cause each of its Subsidiaries to pay and discharge, when due, all
taxes, assessments and governmental charges or levies imposed upon the Company
or such Subsidiary, as the case may be, as well as all lawful claims for labor,
materials and supplies or otherwise unless and only to the extent that the
Company or such Subsidiary, as the case may be, is contesting such taxes,
assessments and governmental charges, levies or claims in good faith and by
appropriate proceedings and the Company or such Subsidiary has set aside on its
books such reserves or other appropriate provisions therefor as may be required
by generally accepted accounting principles.
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SECTION 9.5 Financial Statements; Reports. The Company will furnish to
the Agent and each Bank:
(a) Annual Audit Reports. Within 120 days after the end of
each fiscal year of the Company, a copy of the annual audit report of the
Company and its Subsidiaries prepared on a consolidated and consolidating basis
in conformity with generally accepted accounting principles consistently applied
and certified by Arthur Andersen or another independent certified public
accountant of recognized national standing;
(b) Quarterly Financial Statements. Within 60 days after the
end of each quarter (except the last quarter) of each fiscal year of the
Company, a copy of the Form 10-Q of the Company, for such quarter, prepared in
accordance with the rules, regulations and guidelines of the Securities and
Exchange Commission and including therein the consolidated and consolidating
financial statement of the Company, subject to normal year end audit
adjustments;
(c) Officer's Certificate. Together with the financial
statements furnished by the Company under the preceding clauses (a) and (b), a
compliance certificate in the form of Exhibit J executed by the Company's Chief
Financial Officer or Vice President and Treasurer dated the date of such annual
audit report or such quarterly financial statement, as the case may be, and
including therewith the calculations (and supporting documentation and/or backup
in for such calculations) for all financial covenants set forth in Article X
hereof, and notices of all Hedging Agreements to which it is a party as of the
date of such certificate;
(d) SEC and Other Reports. Copies of each filing and report
made by the Company or any of its Subsidiaries with or to any securities
exchange or the Securities and Exchange Commission and each communication from
the Company or any of its Subsidiaries to shareholders generally, promptly upon
the making thereof;
(e) Manufacturer/Dealer Statements. As soon as available, but
in any event within thirty (30) days after the end of each month, copies of each
Manufacturer/Dealer Statement of each Floor Plan Borrower delivered during such
month;
(f) Inventory Detail Report. Upon request of the Floor Plan
Agent, the Agent or any Bank, copies of the Inventory Detail Report of each
Floor Plan Borrower individually and on a consolidated basis;
(g) Availability Analysis. Together with the financial
statements furnished by the Company under the preceding clauses (a) and (b), a
completed Availability Analysis in the form of Exhibit M, and such other
information as the Agent may have reasonably requested to determine the accuracy
of such calculation, calculated as of the end of the preceding fiscal quarter;
provided, however, in the case of calculations based on financial statements of
any Acquisition consummated in the preceding fiscal quarter not audited by a
nationally recognized accounting firm
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reasonably acceptable to the Agent, the Agent shall be satisfied that the
consolidated EBITDA of the Auto Dealer so acquired pursuant to the proposed
Acquisition exceeded zero for such period; and
(h) Requested Information. Promptly, from time to time, such
other reports or information as the Agent, the Floor Plan Agent or any Bank may
reasonably request.
SECTION 9.6 Litigation and Other Notices. The Company will notify the
Agent and the Banks in writing of any of the following immediately upon learning
of the occurrence thereof, describing the same and, if applicable, the steps
being taken by the Person(s) affected with respect thereto:
(a) Judgment. The entry of any judgment or decree against the
Company and/or any of its other Subsidiaries if the aggregate amount of such
judgment or decree exceeds $500,000 (after deducting the amount with respect to
which the Company or such Subsidiary is insured and with respect to which the
insurer has assumed responsibility in writing);
(b) Suits and Proceedings. The filing or commencement of any
action, suit or proceeding, whether at law or in equity or by or before any
court or any Governmental Authority as to which there is a reasonable
possibility of an adverse determination and which, if adversely determined,
could reasonably be expected to have a Material Adverse Effect;
(c) Default. The occurrence of any Event of Default or
Default;
(d) Material Adverse Change. The occurrence of any event which
could reasonably be expected to have a Material Adverse Effect.
(e) Pension and Welfare Plans. The occurrence of a Reportable
Event with respect to any Plan; the institution of any steps by the Company, any
of its Subsidiaries or any ERISA Affiliate, the PBGC or any other Person to
terminate any Plan; the institution of any steps by the Company, or any of its
Subsidiaries or any ERISA Affiliate to withdraw from any Plan; or the incurrence
of any material increase in the contingent liability of the Company or any of
its Subsidiaries with respect to any post-retirement welfare benefits; and
(f) Other Events. The occurrence of such other events as the
Agent or the Required Banks may reasonably specify from time to time.
SECTION 9.7 ERISA. Each Borrower will comply with the applicable
provisions of ERISA except where the failure to comply could not reasonably be
expected to have a Material Adverse Effect.
SECTION 9.8 Books, Records and Access. Each Borrower will maintain
complete and accurate books and records in which full and correct entries in
conformity with generally accepted accounting principles shall be made of all
dealings and transactions in relation to the business and activities of such
Borrowers. Each Borrower will permit reasonable access by the Agent and each
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Bank, upon reasonable request, to the books and records relating to such
Borrower during normal business hours, to permit or cause to be permitted, the
Agent and each Bank to make extracts from such books and records and permit, or
cause to be permitted, upon reasonable request, any authorized representative
designated by any Bank to discuss the affairs, finances and condition of such
Borrower with such Person's principal financial officers and principal
accounting officers and such other officers as such Borrower shall deem
appropriate.
SECTION 9.9 Use of Proceeds. The Borrowers shall use the proceeds of
the Loans for only the following purposes:
(a) Floor Plan Loans. The proceeds of the Floor Plan Loans may
be used only to finance the purchase of Motor Vehicles for resale in the
ordinary course of business of the Floor Plan Borrowers.
(b) Acquisition Loans. The proceeds of the Acquisition Loans
may be used only for the following purposes: (i) for working capital and general
corporate purposes, including, without limitation, the issuance of Letters of
Credit and to pay outstanding Floor Plan Loans; and (ii) to make Permitted
Acquisitions.
(c) Swing Line Loans. The proceeds of the Swing Line Loans may
be used only to finance the purchase of Motor Vehicles for resale in the
ordinary course of business of the Borrowers.
(d) All Loans. No Loans shall be used for any purpose which
would be in contravention of any Requirement of Law.
SECTION 9.10 Nature of Business. The Borrowers will engage in
substantially the same field of business as they are engaged in on the date
hereof, and except as permitted in Section 10.5(k), will refrain from engaging
in, establishing or becoming in any way involved as a lender in the business of
automobile financing, sub-prime automobile financing or any other credit
transactions related to automobiles other than Retail Loan Guarantees.
SECTION 9.11 Compliance. The Borrowers will comply with all statutes
and governmental rules and regulations applicable to them including all such
statutes and government rules and regulations relating to environmental
pollution or to environmental regulation and control except where the failure to
comply could not reasonably be expected to have a Material Adverse Effect.
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SECTION 9.12 Audits
(a) Entry on Premises. Each Floor Plan Borrower shall permit a
duly authorized representative of the Floor Plan Agent to enter upon such
Borrower's premises during regular business hours to perform audits of Motor
Vehicles in a manner satisfactory to the Agent, provided that the Floor Plan
Agent or its representative shall not perform an audit of such Motor Vehicles
prior to the occurrence of an Event of Default without having given the
applicable Borrower reasonable prior notice; and provided, further, however, the
Floor Plan Agent shall not be required to make more than six (6) such audits in
any fiscal year of any Floor Plan Borrower. Each Floor Plan Borrower shall
assist the Floor Plan Agent, and its representatives, in whatever way necessary
to make the inspections and audits provided for herein.
(b) Excess/Payments in Process. The Borrowers shall maintain
as of the last Business Day of each calendar month, Excess/Payments in Process
in an amount of not less than Three Million Dollars ($3,000,000), which amount
may be increased or decreased from time to time in the sole reasonable
determination of the Floor Plan Agent (the "Out of Balance Amount"). If and to
the extent audits performed from time to time by the Floor Plan Agent as
provided in Section 9.12(a) reveal that any Motor Vehicles of the Floor Plan
Borrowers are for any such calendar month Out of Balance in an aggregate amount
equal to or greater than the Out of Balance Amount, the Floor Plan Agent shall
so notify the Company. The Company shall, or shall cause the other applicable
Floor Plan Borrowers to, deliver by the next Business Day after receipt of such
notice, sufficient funds so as to cause the Borrowings with respect to any such
Motor Vehicles and/or Floor Plan Loans which are Out of Balance to be in
compliance with the Floor Plan Advance Limits. If the Company or such other
Floor Plan Borrowers fail to deliver such funds, or any of them notifies the
Floor Plan Agent that such funds will not be delivered, the Floor Plan Agent
shall, and the Floor Plan Borrowers hereby authorize the Floor Plan Agent to,
apply sufficient funds from such Excess/Payments in Process to cause the
Borrowings with respect to any such Motor Vehicles and/or Floor Plan Loans which
are Out of Balance to be in compliance with the Floor Plan Advance Limits. The
Floor Plan Agent shall provide written notice (including via fax) to the Company
on each Business Day Excess/Payments in Process are so applied and the Floor
Plan Borrowers shall, on or before the next following Business Day, deposit
sufficient funds to restore the balance thereof back to the Out of Balance
Amount then in effect.
(c) Within thirty (30) days after the end of each quarter of
each fiscal year of the Company, commencing the second fiscal quarter of 1999,
the Floor Plan Agent shall deliver to the Agent a summary of the audits of Motor
Vehicles of each of the Floor Plan Borrowers performed by the Floor Plan Agent
during the fiscal quarter just ended, setting forth therein a spread sheet
reflecting for all Floor Plan Borrowers all Motor Vehicles Out of Balance at any
time during such fiscal quarter and the number of days, if any, each such Motor
Vehicle was Out of Balance. The Agent shall promptly deliver a copy of such
report to each Bank.
SECTION 9.13 Demonstration, Service Rental or Loaner Vehicles. The
Floor Plan Agent may from time to time limit the number of Motor Vehicles which
may be placed in service as
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Demonstrators and Rental Motor Vehicles and establish other requirements for
Demonstrators and Rental Motor Vehicles as the Floor Plan Agent may reasonably
determine. Each Borrower shall maintain records at the premises where the Motor
Vehicles are kept evidencing which Motor Vehicles are being used as
Demonstrators and Rental Motor Vehicles.
SECTION 9.14 Disbursement Account. Subject to the terms and conditions
of this Agreement, including Sections 2.1 and 5.7 hereof, a Floor Plan Borrower
may prepay, in whole or in part, from time to time, outstanding Floor Plan
Loans, Swing Line Loans or Swing Line Overdraft Loans and may reborrow Floor
Plan Loans and Swing Line Loans.
Any or all of the Floor Plan Borrowers and the Floor Plan Agent, at
various times, may be parties to a corporate cash management service agreement
(the "Service Agreement") providing for a controlled disbursement account (the
"Disbursement Account") between such Floor Plan Borrower and the Floor Plan
Agent. Subject to the terms and conditions of this Agreement, each such Floor
Plan Borrower authorizes the Floor Plan Agent to fund the Disbursement Account,
on a daily basis if necessary, by advancing Loans under this Agreement to the
extent of availability under the aggregate Floor Plan Loan Commitments. Each
such Floor Plan Borrower acknowledges and agrees that any requests for funding
from the Disbursement Account will not be paid unless funds in an amount
sufficient to pay such requests are then available for reborrowing in compliance
with the terms and conditions of this Agreement, including Section 2.1 hereof to
enable Floor Plan Agent to advance those funds to the Disbursement Account.
Floor Plan Agent agrees that any requests to be submitted for payment through
the Disbursement Account will not be made unless sufficient funds are available
and such request is made in compliance with the terms and conditions of this
Agreement to pay all such requests. Each Floor Plan Borrower at all times is
responsible for having sufficient available funds in Excess/Payments in Process
to pay all requests to be paid through the Disbursement Account, whether these
funds are advances under this Agreement or otherwise. Each Floor Plan Borrower
acknowledges and agrees that the Service Agreement relating to the Disbursement
Account may be canceled by the Floor Plan Agent at any time upon written notice
to the applicable Floor Plan Borrower, notwithstanding anything to the contrary
in the Service Agreement. A copy of the form of Service Agreement may be
attached to this Agreement by the Floor Plan Agent at any time a Service
Agreement is in effect between a Floor Plan Borrower and the Floor Plan Agent,
although the failure to attach it shall not affect its validity or the
effectiveness of this Agreement.
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SECTION 9.15 Further Assurances.
(a) The Company shall and shall cause each of the Borrowers to
the extent applicable to execute, acknowledge, deliver, and record or file such
further instruments, including, without limitation, further security agreements,
financing statements, and continuation statements, and do such further acts as
may be reasonably necessary, desirable, or proper to carry out more
effectively the purposes of this Agreement, including, without limitation, (i)
causing any additions, substitutions, replacements, or appurtenances to the
Motor Vehicles to be covered by and subject to the Liens created in this
Agreement or the Documents to which any Floor Plan Borrower is a party; and (ii)
with respect to any Motor Vehicles which are or are required to be subject to
Liens created in this Agreement or any other Loan Document to which any Floor
Plan Borrower is a party, execute, acknowledge, endorse, deliver, procure, and
record or file any document or instrument, including, without limitation, any
financing statement, certificate of title, manufacturer's statement of origin,
certificate of origin, and dealer reassignment of any of the foregoing which are
evidences of ownership of such Motor Vehicles, deemed advisable by the Agent or
the Floor Plan Agent to protect the Liens granted in this Agreement or the Loan
Documents to which any of them respectively is a party and against the rights or
interests of third persons, and will pay all reasonable costs connected with any
of the foregoing;
(b) The Company shall cause all of its Subsidiaries which
become Subsidiaries after the Closing Date to execute the Addendum to Credit
Agreement and Notes, and if applicable, to execute such other Security Documents
as the Agent and/or the Floor Plan Agent shall reasonably request to establish
Liens on the assets of such Subsidiary consistent with those in place on the
Closing Date.
(c) In the event the Dealer Franchise Agreement or other
written agreements with Manufacturers to which any Borrower is subject shall
prohibit or restrict the Company or any Subsidiary of the Company from entering
into the Escrow and Security Agreement, the Company and/or such affected
Subsidiary shall not be required to be a party thereto.
SECTION 9.16 Permitted Acquisitions.
(a) Subject to the remaining provisions of this Section 9.16
applicable thereto and the requirements contained in the definition of Permitted
Acquisition, the Company may, from time to time after the Closing Date, effect
Permitted Acquisitions, as long as with respect thereto each of the following
conditions are satisfied:
(i) no Default or Event of Default is in
existence at the time of the consummation of such proposed
Acquisition or would exist after giving effect thereto, all
representations and warrants contained herein and in the other
Loan Documents shall be true and correct in all material
respects with the same effect as though such representations
and warranties were made on and as of the date of such
proposed Acquisition (both before and after giving effect
thereto), and no other
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agreement, contract or instrument to which any Borrower is a
party restricts such proposed Acquisition;
(ii) the Company shall have given the Agent and
the Banks at least 30 days (or ten Business Days, in the case
of clause (B) below) prior written notice of any such proposed
Acquisition (each of such notices, a "Permitted Acquisition
Notice"), which notice shall (A) contain the estimated date
such proposed Acquisition is scheduled to be consummated, (B)
attach a true and correct copy of the draft purchase
agreement, letter of intent, description of material terms or
similar agreements executed by the parties thereto in
connection with such proposed Acquisition, (C) contain the
estimated aggregate purchase price of such proposed
Acquisition and the amount of related costs and expenses and
the intended method of financing thereof, and (D) contain the
estimated amount of Acquisition Loans required to effect such
proposed Acquisition;
(iii) the Company shall have provided the Agent
and the Banks with all information related to the Auto Dealer
being acquired and the proposed Acquisition as required in the
form of Acquisition Information worksheet attached hereto as
Exhibit K, and such additional information as the Agent shall
reasonably request, including, without limitation, delivery of
the expert reports (if any) prepared by accounting,
environmental, and/or other experts which the Company has
obtained as the Agent shall reasonably request;
(iv) (A) as soon as available but not less than
the earlier of three (3) days after the execution thereof, a
copy of the executed purchase agreement and all related
agreements, schedules and exhibits with respect to such
proposed Acquisition and (B) at the time of delivery of the
purchase agreement, certification from the Company as to the
purchase price for the acquisition (or a formula therefor) and
the estimated amount of all related costs, fees and expenses
and that, except as described, there are no other amounts
which will be payable in connection with the respective
proposed Acquisition;
(v) the Company shall have given the Agent and
the Banks, at least ten (10) Business Days prior to the
closing date of the proposed Acquisition, a good faith
estimate made by the Company of its Consolidated Pro Forma
EBITDA and Consolidated Pro Forma Floor Plan Interest Expense,
the calculations for which, the Company shall have furnished
to the Agent together with audited statements from an auditor,
satisfactory to the Agent, supporting such calculations for
Pro Forma Floor Plan Interest Expense (except in the case of
an Acquisition, the total consideration exclusive of stock or
other equity consideration is $10,000,000 or less, in which
event audited statements shall not be required);
(vi) INTENTIONALLY DELETED
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(vii) the Company shall have delivered updated
Schedules of the Agreement to the Agent and the Banks; and
(viii) prior to the consummation of the
respective proposed Acquisition, the Company shall furnish the
Agent and the Banks an officer's certificate executed by the
chief financial officer of the Company, certifying as to
compliance with the requirements of the applicable preceding
clauses (i) through (vii), containing the calculations
required in this Section 9.16(a). The consummation of each
Permitted Acquisition shall be deemed to be a representation
and warranty by the Company that all conditions thereto have
been satisfied and that same is permitted in accordance with
the terms of this Agreement, which representation and warranty
shall be deemed to be a representation and warranty for all
purposes hereunder.
(ix) For each Permitted Acquisition involving the
acquisition or creation of a direct or indirect Subsidiary of
the Company, (i) not less than 100% of the capital stock or
other equity interest of such Subsidiary shall be directly
owned by the Company or another Borrower, and (ii) the
Acquisition will not have the effect of causing or requiring
any Subsidiary of the Company to have any direct or indirect
Subsidiary engaged in the sale of new Motor Vehicles by a
Manufacturer which is different than the Manufacturer whose
new Motor Vehicles such Subsidiary was authorized to sell
prior to the Acquisition.
(x) The Required Banks shall have consented in
writing to the proposed Acquisition prior to the closing
thereof; provided, however, such consent shall be deemed to
have been granted if the Required Banks shall not have given
written notice of consent or rejection of such consent to the
Agent within thirty (30) days after receipt by the Agent of
the Permitted Acquisition Notice.
(b) The Company shall cause each Subsidiary (other than Group
1 Reinsurance Ltd.) that is created, or is otherwise acquired pursuant to a
Permitted Acquisition to execute and deliver an Addendum, if applicable, and the
other applicable Loan Documents, with the documentation to be in form and
substance reasonably satisfactory to the Agent. Each such Subsidiary shall also
grant to the Agent, for the benefit of the Banks, first priority perfected
security interests in all personal or movable property of such Subsidiary
subject only to Liens permitted by Section 10.2 acquired in connection with the
Permitted Acquisition, and such Subsidiary shall take all actions requested by
the Agent or the Required Banks including, without limitation, the obtaining of
UCC-1's and the filing of UCC-1's in connection with the granting of such
security interests. All security interests required to be granted pursuant to
this Section 9.16(b) shall be granted pursuant to such security documentation
(which shall be substantially similar to the analogous Security Documents
already executed and satisfactory in form and substance to the Agent) and shall
(except as otherwise consented to by the Agent and the Required Banks)
constitute valid and enforceable perfected security interests prior to the
rights of all third Persons and subject to no other Liens, except Liens
permitted under Section 10.2. The security documents and other instruments
related
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thereto shall be duly recorded or filed in such manner and in such places as are
required by law to establish, perfect, preserve and protect the Liens, in favor
of the Agent for the benefit of the Banks, required to be granted pursuant to
such additional Security Documents and all taxes, fees and other charges payable
in connection therewith shall be paid in full by the Company. At the time of the
execution and delivery of such additional Security Documents, the Company and
the applicable Borrower shall cause to be delivered to the Agent such documents
as may be reasonably requested by the Agent to assure that this Section 9.16(b)
has been complied with. Notwithstanding the foregoing, the Company shall have a
grace period of thirty (30) days from the date the Permitted Acquisition is
effected within which to pay off the existing floor plan facility and all other
actions required to be taken by this Section 9.16(b) with respect to the
additional Collateral shall be completed no later than thirty (30) days after
the date on which the Permitted Acquisition is effected.
SECTION 9.17 Ford Borrower and GM Borrower Dividends. On or before the
last Business Day of each fiscal quarter of the Company, the Company shall cause
all GM Borrowers and Ford Borrowers to make cash transfers to the Company or to
their respective parent with a view toward making an ultimate and concurrent
cash transfers to the Company of all pre-tax profits in excess of working
capital reasonably required in the day to day operations of such Borrower or
such amounts as may be required pursuant to a Dealer Franchise Agreement or
other agreements with Manufacturers to which such Borrower is a party.
ARTICLE X
NEGATIVE COVENANTS
So long as this Agreement shall remain in effect or the principal of or
interest on any Note, the Swing Line Note, any Commitment Fees or any other
expense or amount payable hereunder shall be unpaid and until the Commitments of
all the Banks shall expire or terminate, the Letter of Credit Obligations are
paid in full and all Drafting Agreements are terminated, the Company, as to
itself and as to all of the other Borrowers and each of the Borrowers other than
the Company, as to itself only covenants and agrees with the Agent, the Floor
Plan Agent, the Swing Line Bank and each Bank that:
SECTION 10.1 Indebtedness. No Borrower will incur, create, assume or
suffer to exist any Indebtedness, except:
(a) The Notes, the Swing Line Note, and Indebtedness and
Obligations under this Agreement and the other Loan Documents;
(b) Indebtedness of any Borrower existing at the Closing Date
which is reflected in Schedule X hereto and all renewals and extensions thereof;
(c) Indebtedness created under leases which, in accordance
with generally accepted accounting principles, have been recorded and/or should
have been recorded on the books
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of the applicable Borrower as Capital Leases which, when combined with
Indebtedness described in Section 10.1(d), is less than Ten Million Dollars
($10,000,000);
(d) Indebtedness which is permitted in connection with the
purchase of property, provided that the aggregate amount of such Indebtedness
shall not exceed $3,000,000;
(e) Subordinated Indebtedness;
(f) accounts payable (for the deferred purchase price of
Property or services) from time to time incurred in the ordinary course of
business and which are not in excess of ninety (90) days past the invoice or
billing date;
(g) Non-Recourse Real Estate Debt and any Guaranties by the
Company of such Indebtedness;
(h) INTENTIONALLY DELETED
(i) Indebtedness of any Subsidiary of the Company in existence
(but not incurred or created in connection with such acquisition) on the date on
which such Subsidiary is acquired by the Company and for which Indebtedness
neither the Company nor any of its other Subsidiaries has any obligation and
with respect to which Indebtedness none of the properties of the Company or any
of its other Subsidiaries is bound;
(j) Indebtedness secured by Liens upon any property hereafter
acquired by the Company or any of its Subsidiary to secure Indebtedness in
existence on the date of such acquisition (but not incurred or created in
connection with such acquisition), which Indebtedness is assumed by such Person
simultaneously with such acquisition, which Liens extend only to such Property
so acquired and with respect to which Indebtedness none of the Company or any of
its Subsidiaries (other than the acquiring Person) has any obligation;
(k) Indebtedness owed by the Company or any of its
Subsidiaries to the Company or to any other Subsidiary; provided, however,
Indebtedness of the GM Borrowers and Ford Borrowers owed to the Company or to
any of its other Subsidiaries shall not exceed an amount required to be in
compliance with capital maintenance requirements pursuant to the Dealer
Franchise Agreement of any GM Borrower or any Ford Borrower, as applicable, or
such working capital as may be required from time to time in the ordinary course
of business;
(l) any Retail Loan Guaranties; provided that the sum of (i)
the aggregate principal amount of all Retail Loan Guaranties plus (ii)
Investments in seller financed notes in connection with Motor Vehicles shall not
exceed twenty percent (20%) of Stockholders' Equity; and
(m) Indebtedness arising under any Service Agreement as such
term is defined in Section 9.14.
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SECTION 10.2 Liens. No Borrower will incur, create, assume or permit to
exist any Lien on any of its property or assets, whether owned at the date
hereof or hereafter acquired, or assign or convey any rights to or security
interests in any future revenues, except:
(a) Liens securing payment of the Obligations;
(b) (i) Liens securing Indebtedness permitted by Sections
10.1(c) or (d), but only on the property subject to such Capital Lease or
purchase-money arrangement, or (ii) securing Indebtedness permitted by Sections
10.1(i), (j) and (k);
(c) Liens referred to in Section 7.16;
(d) Liens securing Non-Recourse Real Estate Debt;
(e) extensions, renewals and replacements of Liens referred to
in paragraphs (a) through (d) of this Section 10.2 provided, that any such
extension, renewal or replacement Lien shall be limited to the property or
assets covered by the Lien extended, renewed or replaced and that the
Indebtedness secured by any such extension, renewal or replacement lien shall be
in an amount not greater than the amount of the Indebtedness secured by the Lien
extended, renewed or replaced;
(f) rights of set off which any Manufacturer may have on
Investments permitted under Section 10.5(i); and
(g) Liens existing under Qualified Sale/Leaseback Transaction,
but only on the Property subject of such transaction.
SECTION 10.3 Consolidations and Mergers. No Borrower shall merge,
consolidate with or into, or convey, transfer, lease or otherwise dispose of
(whether in one transaction or in a series of transactions) all or substantially
all of its assets (whether now owned or hereafter acquired) to or in favor of
any Person, except:
(a) any of its Subsidiaries may merge with the Company,
provided that the Company shall be the continuing or surviving corporation, or
with any one or more such Subsidiaries, provided that if any such transaction
shall be between Subsidiaries, one hundred percent (100%) of the capital stock
of which is a Wholly Owned Subsidiary and one of its Subsidiaries which is not a
Wholly Owned Subsidiary, the Wholly Owned Subsidiary shall be the continuing or
surviving corporation;
(b) any Subsidiary of the Company may sell all or
substantially all of its assets (upon voluntary liquidation or otherwise) to the
Company or a Wholly-Owned Subsidiary); and
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(c) any Subsidiary of the Company or the Company may merge or
consolidate with another Person; if (x) the Company or such Subsidiary involved
in the merger or the consolidation is the surviving corporation, and (y)
immediately prior to and after giving effect to such merger or consolidation,
there exists no Default or Event of Default.
SECTION 10.4 Disposition of Assets. Each Borrower agrees that it shall
not permit any Disposition (whether in one or a series of transactions) of any
property or assets (including Accounts, notes receivable, and/or chattel paper,
with or without recourse) or enter into any agreement so to do, except:
(a) Dispositions of Motor Vehicles and dispositions of other
inventory in the ordinary course of business;
(b) Dispositions of assets, properties or businesses by the
Company or any of its Subsidiaries or Affiliates to any other Subsidiary or to
the Company provided, however, other than dispositions to newly created
Subsidiaries which become Borrowers for purposes of complying with Dealer
Franchise Agreements, any such disposition made to a Ford Borrower or a GM
Borrower shall be made on an arms-length basis for fair market value for cash
and only in the ordinary course of business.
(c) Dispositions of property in connection with any
consolidation or merger permitted by Schedule XIII hereof;
(d) Dispositions of the property described in Schedule XIV
attached hereto;
(e) Dispositions of equipment and other property which is
obsolete, worn out or no longer used or useful in such Person's business, all in
the ordinary course of business;
(f) Dispositions occurring as the result of a casualty event,
condemnation or expropriation; and
(g) Dispositions of any property, assets (including capital
stock of its Subsidiaries and Affiliates) or businesses of the Company not
otherwise permitted by clauses (a) through (g) of this Section 10.4; provided,
that the aggregate book value of all such property, assets or businesses sold,
leased or otherwise disposed of during the term of this Agreement shall not at
any time exceed the greater of (i) Five Million Dollars ($5,000,000) or (ii) ten
percent (10%) of the total book value of the assets of the Company and each of
its Subsidiaries, (determined on a consolidated basis in accordance with
generally accepted accounting principles, as of the end of the immediately
preceding fiscal quarter), and provided, further, that for any such property,
assets or business other than capital stock that is sold, leased or otherwise
disposed of, for purposes of determining compliance with this Section 10.4, the
value of any such property, asset or business shall be equal to the book value
of such property, asset or business as of the date of such Disposition; and
provided, further, that for purposes of determining compliance with this Section
10.4, the value
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of any capital stock sold or disposed of shall be determined by multiplying the
number of shares of such capital stock sold by the net book value per share of
such capital stock; and provided, further, that this Section 10.4 does not
authorize Disposition of any Accounts, notes receivable and/or Chattel Paper
with or without recourse; and
(h) Dispositions pursuant to Qualified Sale/Leaseback
Transactions.
SECTION 10.5 Investments. No Borrower will make or permit to exist any
Investment in any Person, except for:
(a) Permitted Acquisitions;
(b) extensions of credit in the nature of Accounts receivable
or notes receivable and/or chattel paper arising from the sale of goods and
services in the ordinary course of business;
(c) shares of stock, obligations or other securities received
in settlement of claims arising in the ordinary course of business;
(d) Investments in securities, maturing within two (2) years
and issued or fully guaranteed or insured by the United States of America or any
agency thereof;
(e) Investments in commercial paper, maturing in two hundred
seventy (270) days or less from the date of issuance, rated in the highest or
second highest grade by a nationally recognized credit rating agency;
(f) Investments in United States Dollar denominated and
Eurodollar denominated time deposits, maturing within two (2) years from the
date of such Investment and issued by a bank or trust company having capital,
surplus and undivided profits aggregating at least One Hundred Million Dollars
($100,000,000) and whose unsecured long-term debt is rated in the highest or
second highest grade by a nationally recognized credit rating agency;
(g) Investments outstanding on the date hereof in Subsidiaries
by the Company and its Subsidiaries;
(h) Investments in negotiable instruments held by Comerica
Securities, Inc. which are acceptable to the Floor Plan Agent not to exceed the
amounts required to be invested pursuant to Section 2.3(i);
(i) INTENTIONALLY DELETED
(j) Investments in capital assets, subject to the limitations
set forth in Section 10.11; and
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(k) Investments in seller financed notes in connection with
Motor Vehicles; provided that the sum of (i) the aggregate amount of all seller
financed notes of the Borrowers in connection with Motor Vehicles plus (ii) the
aggregate amount of all Retail Loan Guaranties, shall not exceed twenty percent
(20%) of Stockholders' Equity.
SECTION 10.6 Transactions with Affiliates. No Borrower will enter into
any transaction with any Affiliate except in the ordinary course of business and
upon fair and reasonable terms no less favorable than the applicable Borrower
could obtain or could become entitled to in an arm's-length transaction with a
Person which was not an Affiliate.
SECTION 10.7 Other Agreements. No Borrower will enter into any
agreement containing any provision which would be violated or breached by such
Borrower's performance of its Obligations hereunder or under any instrument or
document delivered or to be delivered by the Borrowers hereunder or in
connection herewith if the effect of such violation or breach could reasonably
be expected to have a Material Adverse Effect.
SECTION 10.8 Fiscal Year; Accounting. No Borrower will change its
fiscal year without prior notification to the Agent or change its method of
accounting (other than immaterial changes and methods and changes authorized by
generally accepted accounting principles).
SECTION 10.9 Credit Standards. No Borrower will modify in any material
way and which is inconsistent with normal industry practice, the credit
standards and procedures, the collection policies or the loss recognition
procedures with respect to the creation or collection of Accounts, notes
received and/or chattel paper.
SECTION 10.10 Pension Plans. No Borrower will permit any condition to
exist in connection with any Plan which might constitute grounds for the PBGC to
institute proceedings to have such Plan terminated or a trustee appointed to
administer such Plan, or engage in, or permit to exist or occur any other
condition, event or transaction with respect to any Plan which could reasonably
be expected to have Material Adverse Effect.
SECTION 10.11 Capital Expenditures. The Borrowers will not make
expenditures for capital or fixed assets or improvements in any consecutive
twelve (12) month period in an aggregate amount in excess of the aggregate
amount equal to ten percent (10%) of Stockholders' Equity as at the most recent
fiscal year end of the Company. However, if a capital or fixed asset or
improvement is sold by the Company, then the aggregate amount of the capital
expenditures the Company is permitted to make shall be increased by the amount
of proceeds received from the sale of such Property, except for such Property
which is or will be the subject of a Qualified Sale/Leaseback Transaction.
SECTION 10.12 Stockholders' Equity. The Company will not at any time
permit its Stockholders' Equity to be less than an amount equal to the sum of
(x) $85,000,000 plus (y) seventy-five percent (75%) of Consolidated Net Income,
computed on a cumulative basis, for the period
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beginning on December 31, 1997 and ending on the date of determination (provided
that no negative adjustment will be made in the event that Consolidated Net
Income is a deficit figure for such period), plus (z) one hundred percent (100%)
of the net proceeds (cash or non-cash) realized from the issuance of any equity
securities by the Company (or other capital contributions made to the Company)
after December 31, 1997.
SECTION 10.13 Restricted Payments. Each Borrower agrees that it shall
not declare or make any Restricted Payment, except that any Borrower may make
the following Restricted Payments provided that immediately prior to and after
giving effect to the declaration of any dividend, and immediately prior to and
after giving effect to the payment of any Restricted Payment, there exists no
Default or Event of Default:
(a) any Borrower may declare and make dividend payments or
other distributions payable solely in its capital stock;
(b) any Subsidiaries of the Company may declare and make
Restricted Payments to the Company or its parent company for the purpose of such
parent company making a Restricted Payment to the Company;
(c) the Company may declare and pay cash dividends on its
capital stock, provided (i) no Default or Event of Default has occurred, is
continuing or would be created thereby and (ii) that the aggregate cash
dividends paid by the Company shall not exceed an amount equal to thirty-three
and three-one-hundredths percent (33.3%) of the aggregate Consolidated Net
Income for the period commencing on December 31, 1997 and ending on the date of
determination taken as a single accounting period; and
(d) the Company may purchase shares of its capital stock (i)
to sell to employees of the Company pursuant to a Company sponsored employee
stock purchase plan, provided that such sales price is not less than 85% of the
Company's cost, and (ii) from directors, officers and employees, provided that
the aggregate amount of such purchases under this clause (ii) does not exceed
$1,000,000 in any consecutive twelve (12) month period.
SECTION 10.14 Fixed Charge Coverage Ratio. The Company will not permit
(as of the end of any fiscal quarter) its Fixed Charge Coverage Ratio to be less
than 1.25 to 1, such ratio to be calculated as of the end of each fiscal quarter
of the Company based upon the four fiscal quarters immediately preceding such
date of determination.
SECTION 10.15 Interest Coverage Ratio. The Company will not permit (as
of the end of any fiscal quarter) its Interest Coverage Ratio to be less than
2.50 to 1, such ratio to be calculated as of the end of each fiscal quarter of
the Company based upon the four fiscal quarters immediately preceding such date
of determination.
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SECTION 10.16 Leverage Ratio and Total Leverage Ratio. The Company
shall not, at any time permit (a) its Leverage Ratio to be greater than 2.0 to 1
and (b) its Total Leverage Ratio to be greater than 3.0 to 1.
SECTION 10.17 Current Ratio. The Company shall not, at any time, permit
its Current Ratio to be less than 1.05 to 1.
SECTION 10.18 Working Capital. The Company will not at any time permit
its Working Capital to be less than Twenty-Five Million Dollars ($25,000,000).
SECTION 10.19 Alternative Floor Plan Financing. Notwithstanding the
provisions of Section 10.1 and 10.2, the existence of Indebtedness owed to any
lender providing floor plan financing to the Borrowers (other than Borrowers who
as of the Closing Date were Floor Plan Borrowers) other than the Banks as of the
Closing Date and the Liens securing such Indebtedness shall not be prohibited if
at any time the Company provides written notice to the Agent that (i) the
conditions precedent for imposition of the Reserve Commitment exist as of the
date of such notice, and requesting therein a reasonable increase in the Floor
Plan Loan Commitment, and the Banks shall not, within twenty (20) Business Days
after the date of such notice, have provided for such increase in the Floor Plan
Loan Commitment, or (ii) in connection with a Permitted Acquisition, the Floor
Plan Loan Commitment will not, in the reasonable determination of the Company,
be adequate for the floor plan funding requirements of the Auto Dealer(s) to be
acquired and the Banks shall not, within twenty (20) Business Days after the
date of such notice have agreed to increase the Floor Plan Loan Commitments in
the amounts reasonably requested by the Company upon closing of the acquisition
of such Auto Dealers.
ARTICLE XI
EVENTS OF DEFAULT
SECTION 11.1 Events of Default. In case of the happening of any of the
following events (herein called "Events of Default"):
(a) any representation or warranty made or deemed made in or
in connection with this Agreement, the Notes, the Swing Line Note, any of the
Loan Documents or any of the Borrowings hereunder or in any report, certificate,
financial statement or other instrument furnished in connection with this
Agreement or the execution and delivery of the Notes, the Swing Line Note or any
of the Loan Documents or the making of any of the Borrowings hereunder shall
prove to have been false or misleading in any material respect when made or
deemed made;
(b) Default shall be made in the payment of any principal of
any Loan when and as the same shall become due and payable pursuant to the terms
of this Agreement, whether at the due date thereof or at a date fixed for
prepayment thereof or by acceleration thereof or otherwise;
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(c) Default shall be made in the payment of any interest on
any Loan or any Commitment Fees or any other amount due under this Agreement,
when and as the same shall become due and payable which shall remain unremedied
for a period of five (5) days;
(d) Default shall be made in the due observance or performance
of any covenant, condition or agreement contained in Sections 6.3 [Risk
Participations, Drawings and Reimbursements], 9.1 [Existence], 9.3 [Insurance],
9.5[ Financial Statements; Reports], 9.6 [Litigation and Other Notices], 9.8
[Books, Records and Access], 9.10 [Nature of Business], 9.13 [Demonstration,
Service Rental or Loaner Vehicles] or in Article X [Negative Covenants];
(e) except as provided in Sections 11.1(a) through (d),
inclusive, Default shall be made in the due observance or performance of any
other covenant, condition or agreement to be observed or performed pursuant to
this Agreement or any of the Loan Documents and such Default shall continue
unremedied for thirty (30) days after the earlier to occur of (i) any Borrower
obtaining knowledge thereof or (ii) written notice thereof having been given to
the Company;
(f) any Borrower shall (i) voluntarily commence any proceeding
or file any petition seeking relief under Title 11 of the United States Code or
any other federal or state bankruptcy, insolvency, liquidation or similar law,
(ii) consent to the institution of, or fail to contravene in a timely and
appropriate manner, any such proceeding or the filing of any such petition,
(iii) apply for or consent to the appointment of a receiver, trustee, custodian,
sequestrator or similar official for such Borrower or for a substantial part of
such Borrower's property or assets, (iv) file an answer admitting the material
allegations of a petition filed against it in any such proceeding, (v) make a
general assignment for the benefit of creditors, (vi) become unable, admit in
writing its inability or fail generally to pay its debts as they become due or
(vii) take any corporate or other action for the purpose of effecting any of the
foregoing;
(g) an involuntary proceeding shall be commenced or an
involuntary petition shall be filed in a court of competent jurisdiction seeking
(i) relief in respect of any Borrower, or of a substantial part of the property
or assets of any Borrower, under Title 11 of the United States Code or any other
federal or state bankruptcy, insolvency, receivership or similar law, (ii) the
appointment of a receiver, trustee, custodian, sequestrator or similar official
for any Borrower or for a substantial part of the property of any Borrower or
(iii) the winding-up or liquidation of any Borrower; and such proceeding or
petition shall continue undismissed for sixty (60) days or an order or decree
approving or ordering any of the foregoing shall continue unstayed and in effect
for sixty (60) days;
(h) default or defaults (other than defaults in the payment of
principal or interest) shall be made with respect to any Indebtedness of any
Borrower, if the total amount of such Indebtedness in default exceeds in the
aggregate, an amount equal to Two Million Dollars ($2,000,000) and if the effect
of any such default or defaults shall be to accelerate, or to permit the holder
or obligee of any such Indebtedness (or any trustee on behalf of such holder or
obligee) to accelerate (with or without notice or lapse of time or both), the
maturity of any such Indebtedness; or any payment of principal or interest,
regardless of amount, on any Indebtedness of the Borrowers which exceeds in the
aggregate, an amount equal to Two Million Dollars ($2,000,000) shall not be
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paid when due, whether at maturity, by acceleration or otherwise (after giving
effect to any period of grace as specified in the instrument evidencing or
governing such Indebtedness);
(i) a Reportable Event or Reportable Events shall have
occurred with respect to any Plan or Plans that reasonably could be expected to
result in a Material Adverse Effect.
(j) there shall be entered against the Company or any of its
Subsidiaries one or more judgments or decrees in excess of Five Million Dollars
($5,000,000) in the aggregate at any one time outstanding for the Company and
all such Subsidiaries and all such judgments or decrees in the amount of such
excess shall not have been vacated, discharged, stayed or bonded pending appeal
within sixty (60) days from the entry thereof, excluding those judgments or
decrees for and to the extent which the Company or any such Subsidiary is
insured and with respect to which the insurer has assumed responsibility in
writing or for and to the extent which the Company or any such Subsidiary is
otherwise indemnified if the terms of such indemnification are satisfactory to
the Required Banks;
(k) there shall occur any material loss or change to any
Dealer Franchise Agreement between any Borrower and a Manufacturer, which has a
Material Adverse Effect;
(l) there occurs any Material Adverse Effect;
(m) any of the Loan Documents shall cease to be legal, valid
and binding agreements enforceable against the Person executing the same in
accordance with the respective terms thereof except as permitted by the terms
hereof or thereof shall in any way be terminated or become or be declared
ineffective or inoperative or shall in any way whatsoever cease to give or
provide the respective Liens, security interests, rights, titles, interests,
remedies, powers or privileges intended to be created thereby;
(n) an audit performed by the Floor Plan Agent pursuant to the
provisions of Section 9.12(a), reveals that Motor Vehicles have, for a period of
thirty consecutive (30) days been Out of Balance in an amount equal to or
greater than the Out of Balance Amount and none of the Floor Plan Borrowers has
delivered sufficient funds to restore Excess/Payments in Process to an amount
not less than the Out of Balance Amount;
(o) an audit performed by the Floor Plan Agent pursuant to the
provisions of Section 9.12(a) identifies any specific motor vehicle by vehicle
identification number as an exception to the payment requirements of Section
2.5, and the Loan advanced to fund such Motor Vehicle has not been repaid within
thirty (30) days (except in the case of Fleet Motor Vehicles, which shall be
sixty (60) days) of such audit and the aggregate amount of all such unpaid Loans
exceeds $300,000; or
(p) a Change of Control occurs.
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then, and in any such event (other than an event with respect to the Company
described in paragraph (f) or (g) above), and at any time thereafter during the
continuance of such event, (i) the Agent may, and at the request of the Required
Banks shall, by written or telegraphic notice to the Company, take any of the
following actions at the same or different times: (x) terminate forthwith the
Commitments of the Banks hereunder (if not theretofore terminated) and any such
termination shall automatically constitute a termination of the Swing Line
Commitment, (y) declare the Notes then outstanding to be forthwith due and
payable and any such declaration shall automatically constitute a declaration
that the Swing Line Note is due and payable, whereupon the principal of the
Notes, and the Swing Line Note, together with accrued and unpaid interest
thereon and any unpaid accrued Commitment Fees and all other liabilities of the
Borrowers accrued hereunder, shall become forthwith due and payable both as to
principal and interest, without presentment, demand, protest, notice of protest,
notice of intent to accelerate, notice of acceleration or any other notice of
any kind, all of which are hereby expressly waived by the Borrowers, anything
contained herein or in any Note, the Swing Line Note or other Loan Document to
the contrary notwithstanding, or (z) pursue and enforce any of the rights and
remedies of the Agent on behalf of the Banks as provided in any of the Loan
Documents or as otherwise provided in the UCC or other applicable law and (ii)
the Floor Plan Agent in its sole discretion may, and at the request of the
Required Banks shall (and, to the extent the Commitments have been terminated,
such request shall be deemed to have been made), suspend and terminate all
Drafting Agreements; and in any event with respect to a Borrower described in
paragraph (f) or (g) above, the Commitments of the Banks shall automatically
terminate (if not theretofore terminated) and any such termination shall
automatically constitute a termination of the Swing Line Commitment, and the
Notes and the Swing Line Note shall automatically become due and payable, both
as to principal and interest, without presentment, demand, protest, notice of
intent to accelerate, notice of acceleration or other notice of any kind, all of
which are hereby expressly waived by the Borrowers, anything contained herein or
in any Note, the Swing Line Note or other Loan Document to the contrary
notwithstanding and the Company and the other Borrowers shall immediately
deliver cash collateral to the Agent in such amounts as are acceptable to the
Agent to be held by the Agent, for the benefit of the Swing Line Bank and the
Banks as Collateral for the payment and performance of Drafting Agreements until
all such Drafting Agreements are terminated according to their terms.
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ARTICLE XII
THE AGENT AND FLOOR PLAN AGENT
SECTION 12.1 Authorization and Action of the Agent; Rights and Duties
Regarding Collateral.
(a) In order to expedite the various transactions contemplated
by this Agreement, each Bank, the Floor Plan Agent and the Swing Line Bank
hereby irrevocably appoints and authorizes Chase to act as Agent on its behalf.
Each of the Banks, the Floor Plan Agent and the Swing Line Bank and each
subsequent holder of any Note or the Swing Line Note by its acceptance thereof,
hereby irrevocably authorizes and directs the Agent to take such action on its
behalf and to exercise such powers hereunder as are specifically delegated to or
required of the Agent by the terms and provisions hereof, together with such
powers as are reasonably incidental thereto. The Agent may perform any of its
duties hereunder by or through its agents and employees. The duties of the Agent
shall be mechanical and administrative in nature; the Agent shall not have by
reason of this Agreement or any other Loan Document a fiduciary relationship in
respect of any Bank, the Floor Plan Agent or the Swing Line Bank; and nothing in
this Agreement or any other Loan Document, expressed or implied, is intended to,
or shall be so construed as to, impose upon the Agent any obligations in respect
of this Agreement or any other Loan Document except as expressly set forth
herein or therein. The Agent is hereby expressly authorized on behalf of the
Banks, the Floor Plan Agent and the Swing Line Bank, without hereby limiting any
implied authority, (i) to receive on behalf of each of the Banks any payment of
principal of or interest on the Notes outstanding hereunder and all other
amounts accrued hereunder paid to the Agent, and promptly to distribute to each
Bank its proper share of all payments so received; (ii) to give notice within a
reasonable time on behalf of each of the Banks and the Swing Line Bank to the
Borrowers of any Default or Event of Default specified in this Agreement of
which the Agent has actual knowledge as provided in Section 12.7; (iii) to
distribute to each Bank and the Swing Line Bank copies of all notices,
agreements and other material as provided for in this Agreement as received by
the Agent; (iv) to distribute to the Borrowers any and all requests, demands and
approvals received by the Agent or from the Banks, and (v) to distribute and
receive all notices, agreements and other material as provided in this Agreement
with respect to Floor Plan Loans and to deal with the Floor Plan Agent to the
fullest extent required or contemplated by the terms of their Agreement or any
other Loan Document. As to any matters not expressly provided for by this
Agreement, the Notes, the Swing Line Note or the other Loan Documents (including
enforcement or collection of the Notes or the Swing Line Note), the Agent shall
not be required to exercise any discretion or take any action, but shall be
required to act or to refrain from acting (and shall be fully protected in so
acting or refraining from acting) upon the instructions of the Required Banks,
and such instructions shall be binding upon all Banks and all holders of Notes,
the Swing Line Note and the Loans, the Floor Plan Agent and the Swing Line Bank;
provided, however, that the Agent shall not be required to take any action which
exposes the Agent to personal liability or which is contrary to this Agreement
or applicable law.
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(b) The Agent shall hold all of the Collateral along with all
payments and proceeds arising therefrom, for the benefit of all Banks and the
Swing Line Bank as security for the payment of all the Obligations. Upon payment
in full of all the Obligations, the Agent shall release all of the Collateral to
the Borrowers. Except as otherwise expressly provided for in Section 13.5, the
Agent, in its own name or in the name of the Borrowers, may enforce any of the
Security Documents or the security therefor by any mode provided under the Loan
Documents or by applicable law, and may collect, receive and receipt for all
proceeds receivable on account of the Collateral.
(c) To the extent that the Collateral includes notes or other
instruments evidencing any monetary obligation to, or interest of any Borrower,
such Borrowers shall, if requested by the Agent, deliver to the Agent letters,
executed by such Borrower and approved by counsel for the Agent, notifying the
obligors to make payments directly to the Agent, such letters to be held by the
Agent and sent to such obligors at its discretion in accordance with Section
12.1(d) below. All payments and proceeds of every kind from the Collateral, when
directly received by the Agent pursuant to Section 12.1(d) (whether from
payments on or with respect to the Collateral, from foreclosure and sale to
third parties, from sale of Collateral subsequent to a foreclosure at which the
Agent or another Bank was the purchaser, or otherwise) shall be held by it as a
part of the Collateral and, except as otherwise expressly provided hereinafter,
shall be applied to the Obligations in the manner set forth in Section 12.1(d).
(d) Upon the occurrence of an Event of Default, and pursuant
to the procedures among the Banks set forth in Section 12.1(e), the Agent, after
giving written notice to the Borrowers and to all Banks and the Swing Line Bank
of the action(s) to be taken, may at any time or times thereafter (i) deliver
the various letters required by Section 12.1(c) hereof and receive directly, for
the benefit of the Banks and Swing Line Bank and for reduction of the
Obligations as provided hereafter in this Section 12.1(d), all payments and
proceeds related to the Collateral and/or (ii) sell, assign and deliver all of
the Collateral or any part thereof, or any substitution therefor or any
additions thereto as provided hereafter. Any such sale or assignment may be at
any broker's board or at any public or private sale, at the option of the Agent
or of any officer or representative acting on behalf of the Agent, without
advertisement or any notice to the Borrowers or any other Person except those
required by applicable law (the Borrowers hereby agreeing that ten (10) days'
notice constitutes "reasonable notice"); and each Bank (including the Agent),
its officers and assigns, may bid and become purchasers at any such sale, if
public, or at any broker's board if the Collateral is of a type customarily sold
in a recognized market or is of a type which is the subject of widely
distributed standard price quotations. Sales hereunder may be at such time or
times, place or places, for cash or credit, and upon such terms and conditions
as the Agent may determine in its sole discretion. Upon the completion of any
sale, the Agent shall execute all instruments of transfer necessary to vest in
the purchaser(s) title to the property sold, and shall deliver to such
purchaser(s) any of the property so sold which may be in the possession of the
Agent.
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In the case of any sale of Collateral, the purchase money
proceeds and avails, and all other proceeds which then may be held or recovered
by the Agent or the Floor Plan Agent for the benefit of the Banks and the Swing
Line Bank, shall be applied in the following order:
(i) First, to the payment of the reasonable costs
and expenses of such sale and of the collection or enforcement
of such Collateral, and of all reasonable expenses (including
attorneys fees) and liabilities incurred and advances made by
the Banks in connection therewith;
(ii) Second, to the payment of any amounts due to
Swing Line Bank in the form of Swing Line Overdraft Loans;
(iii) Third, to the payment ratably of the
amounts due to the Banks for principal of and interest on all
Floor Plan Loans other than Swing Line Overdraft Loans then
outstanding, without preference or priority of such
indebtedness owing to one Bank over another, or of principal
over interest, or of interest over principal; and
(iv) Fourth, to the payment ratably of the
amounts due to the Banks for principal of and interest on (x)
all Acquisition Loans then outstanding, without preference or
priority of such indebtedness owing to one Bank over another,
or of principal over interest, or of interest over principal,
(y) all Obligations arising under any Hedging Agreement
existing on the Closing Date with respect to or covering Loans
under this Agreement in an aggregate amount for all such
covered Loans not to exceed at any time $75 Million and (z)
Obligations arising under any other Hedging Agreement covering
Loans under this Agreement; provided that the Bank entering
into such Hedging Agreement has delivered a written request
for approval of such Hedging Agreement to the Agent and each
of the Banks and the Required Banks approve such Hedging
Agreement (and the failure of any Bank to object in writing to
such request within five (5) business days of receipt of such
request shall be deemed approval) but excluding for the
purposes of this Section 12.1(d)(iv) all Obligations arising
under any Hedging Agreements which do not meet the
requirements of subclauses (y) or (z) above (the "Excess
Hedging Agreement Liability"); and
(v) Fifth, to the payment of Excess Hedging
Agreement Liability owing to any of the Banks without
preference or priority of such indebtedness owing to one Bank
over another; and
(vi) Sixth, to the payment of the surplus, if
any, to the Borrowers, their successors or assigns, or to
whomsoever may be lawfully entitled to receive the same, or as
a court of competent jurisdiction may direct.
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(e) After the occurrence and during the continuance of a
Default or an Event of Default, the Required Banks shall meet to establish
written procedures to be taken by the Agent for the protection, collection and
enforcement of the Collateral. The Agent shall not act with respect to the
Collateral except in accordance with the written procedures as established by
the Required Banks; however, if the Required Banks fail to agree upon and
establish such procedures, and the exigency of the circumstances requires, the
Agent, in its sole discretion and in good faith, may (but is not required to)
take whatever action it deems necessary to protect and enforce the Collateral or
the rights of the Banks and the Swing Line Bank under the Loan Documents. The
Borrowers shall acquire no rights or defenses under this Section 12.1(e).
(f) No Bank or the Swing Line Bank may enforce, or demand
enforcement of, any rights or Liens with respect to the Collateral except upon
the terms and conditions elsewhere stated in this Agreement.
SECTION 12.2 Agent's Reliance, Etc.
(a) Neither the Agent nor any of its directors, officers,
agents or employees shall be liable for any action taken or omitted to be taken
by it or them under or in connection with this Agreement, the Notes, the Swing
Line Note or any of the other Loan Documents (i) with the consent or at the
request of the Required Banks or (ii) in the absence of its or their own gross
negligence or willful misconduct (it being the express intention of the parties
hereto that the Agent and its directors, officers, agents and employees shall
have no liability for actions and omissions under this Section 12.2 resulting
from their sole ordinary or contributory negligence).
(b) Without limitation of the generality of the foregoing, the
Agent: (i) may treat the payee of each Note, the Swing Line Note and the
Obligations of each Borrower hereunder and the Swing Line Bank, respectively, as
the holder thereof until the Agent receives written notice of the assignment or
transfer thereof signed by such payee and in form satisfactory to the Agent;
(ii) may consult with legal counsel (including counsel for any Borrower),
independent public accountants and other experts selected by it and shall not be
liable for any action taken or omitted to be taken in good faith by it in
accordance with the advice of such counsel, accountants or experts; (iii) makes
no warranty or representation to any Bank, the Swing Line Bank, or the Floor
Plan Agent and shall not be responsible to any Bank, the Swing Line Bank, or the
Floor Plan Agent for any statements, warranties or representations made in or in
connection with this Agreement, any Note, the Swing Line Note or any other Loan
Document; (iv) except as otherwise expressly provided herein, shall not have any
duty to ascertain or to inquire as to the performance or observance of any of
the terms, covenants or conditions of this Agreement, any Note, the Swing Line
Note or any other Loan Document or to inspect the property (including the books
and records) of any Borrower; (v) shall not be responsible to any Bank, the
Swing Line Bank or the Floor Plan Agent for the due execution, legality,
validity, enforceability, collectibility, genuineness, sufficiency or value of
this Agreement, any Note, the Swing Line Note, any other Loan Document or any
other instrument or document furnished pursuant hereto or thereto; (vi) shall
not be responsible to any Bank, the Swing Line Bank or the Floor Plan Agent for
the perfection or priority of any Lien securing the Loans; and
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(vii) shall incur no liability under or in respect of this Agreement, any Note,
the Swing Line Note or any other Loan Document by acting upon any notice,
consent, certificate or other instrument or writing (which may be by telegram,
telecopier, cable or telex) reasonably believed by it to be genuine and signed
or sent by the proper party or parties.
SECTION 12.3 Agent and Affiliates; Chase and Affiliates. Without
limiting the right of any other Bank or the Swing Line Bank to engage in any
business transactions with any Borrower or any of its Affiliates, with respect
to their Commitments, the Loans, if any, made by them, the Notes, and the Swing
Line Note, if any, issued to them, Chase shall have the same rights and powers
under this Agreement, any Note, the Swing Line Note or any of the other Loan
Documents as any other Bank and may exercise the same as though it were not the
Agent; and the term "Bank" or "Banks" shall, unless otherwise expressly
indicated, include Chase in its individual capacity. Chase and its Affiliates
may be engaged in, or may hereafter engage in, one or more loan, letter of
credit, leasing or other financing activities not the subject of the Loan
Documents (collectively, the "Other Financings") with any of Borrowers or any of
their Affiliates, or may act as trustee on behalf of, or depositary for, or
otherwise engage in other business transactions with any of the Borrowers or any
of their Affiliates (all Other Financings and other such business transactions
being collectively, the "Other Activities") with no responsibility to account
therefor to the Banks or the Floor Plan Agent. Without limiting the rights and
remedies of the Banks, the Swing Line Bank, or the Floor Plan Agent specifically
set forth in the Loan Documents, no other Bank, the Swing Line Bank, nor the
Floor Plan Agent shall have any interest in (a) any Other Activities, (b) any
present or future guarantee by or for the account of any Borrower not
contemplated or included in the Loan Documents, (c) any present or future offset
exercised by the Agent in respect of any such Other Activities, (d) any present
or future property taken as security for any such Other Activities or (e) any
property now or hereafter in the possession or control of the Agent which may be
or become security for the Obligations of any Borrower under the Loan Documents
by reason of the general description of indebtedness secured, or of property
contained in any other agreements, documents or instruments related to such
Other Activities; provided, however, that if any payment in respect of such
guarantees or such property or the proceeds thereof shall be applied to
reduction of the Obligations evidenced hereunder and by the Notes, then each
Bank, the Swing Line Bank and the Floor Plan Agent shall be entitled to share in
such application according to its equitable portion of such Obligations.
SECTION 12.4 Agent's Indemnity.
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(a) The Agent shall not be required to take any action
hereunder or to prosecute or defend any suit in respect of this Agreement, the
Notes, the Swing Line Note or any other Loan Document unless indemnified to the
Agent's satisfaction by the Banks and the Swing Line Bank against loss, cost,
liability and expense. If any indemnity furnished to the Agent shall become
impaired, the Agent may call for additional indemnity and cease to do the acts
indemnified against until such additional indemnity is given. In addition, the
Banks and the Swing Line Bank agree to indemnify the Agent (to the extent not
reimbursed by the Borrowers), ratably according to the respective aggregate
principal amounts of the Notes and the Swing Line Note then held by each of them
(or if no Notes are at the time outstanding, ratably according to the respective
Pro Rata Share of Total Commitments, or if no Commitments are outstanding, the
respective Pro Rata Share of Total Commitments immediately prior to the time the
Total Commitments ceased to be outstanding), from and against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind or nature whatsoever which may be
imposed on, incurred by, or asserted against the Agent (or either of them) in
any way relating to or arising out of this Agreement or any action taken or
omitted by the Agent under this Agreement, the Notes, the Swing Line Note and
the other Loan Documents (including any action taken or omitted under Article II
of this Agreement). Without limitation of the foregoing, each Bank and the Swing
Line Bank agrees to reimburse the Agent promptly upon demand for its respective
Pro Rata Share of the Total Commitments of any out-of-pocket expenses (including
reasonable counsel fees) incurred by the Agent in connection with the
preparation, execution, administration, or enforcement of, or legal advice in
respect of rights or responsibilities under, this Agreement, the Notes, the
Swing Line Note and the other Loan Documents to the extent that the Agent is not
reimbursed for such expenses by the Borrowers. The provisions of this Section
12.4 shall survive the termination of this Agreement, the payment of the Loans
and/or the assignment of any of the Notes and the Swing Line Note.
(b) Notwithstanding the foregoing, no Bank or the Swing Line
Bank shall be liable under this Section 12.4 to the Agent for any portion of
such liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements due to the Agent resulting from the
Agent's gross negligence or willful misconduct. Each Bank and the Swing Line
Bank agrees, however, that it expressly intends, under this Section 12.4, to
indemnify the Agent ratably as aforesaid for all such liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses and
disbursements arising out of or resulting from the Agent's sole ordinary or
contributory negligence.
SECTION 12.5 Bank Credit Decision. Each Bank and the Swing Line Bank
acknowledges that it has, independently and without reliance upon the Agent, the
Floor Plan Agent or any other Bank or the Swing Line Bank and based on the
financial statements most recently delivered under either referred to in Section
7.5 or Section 9.5 and such other documents and information as it has deemed
appropriate, made its own credit analysis and decision to enter into this
Agreement. Each Bank and the Swing Line Bank also acknowledges that it will,
independently and without reliance upon the Agent, the Floor Plan Agent or any
other Bank and based on such documents and information as it shall deem
appropriate at the time, continue to make its own
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decisions in taking or not taking action under or based upon this Agreement, the
other Loan Documents, any related agreement or any document furnished hereunder.
SECTION 12.6 Successor Agent. Subject to the appointment and acceptance
of a successor Agent as provided herein, the Agent may resign at any time by
giving thirty (30) days written notice thereof to the Banks, the Swing Line
Bank, the Floor Plan Agent and the Company. Upon any such resignation, the
Required Banks shall have the right to appoint a successor Agent, subject to the
approval of the Company, which approval shall not be unreasonably withheld. If
no successor Agent shall have been so appointed by the Required Banks, approved
by the Company and shall have accepted such appointment, all within thirty (30)
calendar days after the retiring Agent's giving of notice of resignation, then
the retiring Agent may, on behalf of the Banks, appoint a successor Agent, which
shall be a commercial bank organized or licensed under the laws of the United
States or of any state thereof and having a combined capital and surplus of at
least Five Hundred Million Dollars ($500,000,000). Upon the acceptance of any
appointment as Agent hereunder and under the Notes by a successor Agent, such
successor Agent shall thereupon succeed to and become vested with all the
rights, powers, privileges and duties of the retiring Agent, and the retiring
Agent shall be discharged from its duties and obligations under this Agreement
and the Notes. After any retiring Agent's resignation as the Agent hereunder and
under the Notes, the provisions of this Article XII and Section 13.4 shall inure
to its benefit as to any actions taken or omitted to be taken by it while it was
Agent under this Agreement and the Notes.
SECTION 12.7 Notice of Default. The Agent shall not be deemed to have
knowledge or notice of the occurrence of any Default or Event of Default
hereunder unless the Agent shall have received notice from a Bank, the Swing
Line Bank, the Floor Plan Agent or the Borrowers referring to this Agreement,
describing such Default or Event of Default and stating that such notice is a
"notice of default" or "notice of event of default," as applicable. If the Agent
receives such a notice, the Agent shall give notice thereof to the Banks, the
Swing Line Bank and the Floor Plan Agent and, if such notice is received from a
Bank, the Swing Line Bank or the Floor Plan Agent, the Agent shall give notice
thereof to the other Banks, the Swing Line Bank and the Company. The Agent shall
be entitled to take action or refrain from taking action with respect to such
Default or Event of Default as provided in Section 12.1 and Section 12.2.
SECTION 12.8 Authorization and Action of the Floor Plan Agent.
(a) In order to expedite the various transactions contemplated
by this Agreement, each Bank, the Swing Line Bank and the Agent hereby
irrevocably appoint and authorize Comerica Bank to act as Floor Plan Agent on
its behalf. Each of the Banks, the Swing Line Bank and the Agent, and each
subsequent holder of any Note or the Swing Line Note by its acceptance thereof,
hereby irrevocably authorizes and directs the Floor Plan Agent to take such
action and to exercise such powers hereunder as are specifically delegated to or
required of the Floor Plan Agent by the terms and provisions hereof, together
with such powers as are reasonably incidental thereto. The Floor Plan Agent may
perform any of its duties hereunder by or through its agents and employees. The
duties of the Floor Plan Agent shall be mechanical and administrative
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in nature; the Floor Plan Agent shall not have by reason of this Agreement or
any other Loan Document a fiduciary relationship in respect of any Bank, the
Swing Line Bank or the Agent; and nothing in this Agreement or any other Loan
Document, expressed or implied, is intended to, or shall be so construed as to,
impose upon the Floor Plan Agent any obligations in respect of this Agreement or
any other Loan Document except as expressly set forth herein or therein. The
Floor Plan Agent is hereby expressly authorized on behalf of the Banks to (i)
receive and distribute funds, (ii) to receive and distribute all notices and
agreements and other material and (iii) to take all actions and perform such
duties and make such determinations, all as provided in this Agreement. As to
any matters not expressly provided for by this Agreement or any Loan Document,
the Floor Plan Agent shall not be required to exercise any discretion or take
any action, but shall not be required to act or to refrain from acting (and
shall be fully protected in so acting or refraining from acting) upon the
instructions of the Required Banks, and such instructions shall be binding upon
all Banks, the Swing Line Bank, the Agent and all holders of Notes and the Swing
Line Note and the Loans and the Floor Plan Agent; provided, however, that the
Floor Plan Agent shall not be required to take any action which exposes it to
personal liability or which is contrary to this Agreement or applicable law.
(b) To the extent that any proceeds of the Motor Vehicles
includes notes or other instruments evidencing any monetary obligation to, or
interest of, any Borrower, such Borrower shall deliver or cause to be delivered
to the Floor Plan Agent letters, executed by such Borrower and approved by
counsel for the Floor Plan Agent, notifying the obligors to make payments
directly to the Floor Plan Agent, such letters to be held by the Floor Plan
Agent and sent to such obligors at its discretion. All payments and proceeds of
every kind from such Motor Vehicles, when directly received by the Floor Plan
Agent (whether from payments on or with respect to proceeds of Motor Vehicles,
from foreclosure and sale to third parties, from sale of Motor Vehicles
subsequent to a foreclosure at which the Floor Plan Agent or another Bank was
the purchaser, or otherwise) shall be, except as otherwise expressly provided
hereinafter, applied to the Obligations in the manner set forth in Section
12.1(d).
SECTION 12.9 Floor Plan Agent's Reliance, Etc.
(a) Neither the Floor Plan Agent nor any of its directors,
officers, agents or employees shall be liable for any action taken or omitted to
be taken by it or them under or in connection with this Agreement (i) with the
consent or at the request of the Required Banks acting by and through the Agent
or (ii) in the absence of its or their own gross negligence or willful
misconduct (it being the express intention of the parties hereto that the Floor
Plan Agent and its directors, officers, agents and employees shall have no
liability for actions and omissions under this Section 12.9 resulting from their
sole ordinary or contributory negligence).
(b) Without limitation of the generality of the foregoing, the
Floor Plan Agent: (i) may treat the Agent as Agent hereunder until the Floor
Plan Agent receives written notice of the appointment of a successor Agent as
provided in Section 12.6; (ii) may consult with legal counsel (including counsel
for the Borrowers), independent public accountants and other experts selected by
it and shall not be liable for any action taken or omitted to be taken in good
faith by it
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in accordance with the advice of such counsel, accountants or experts; (iii)
makes no warranty or representation to any Bank, the Swing Line Bank or the
Agent and shall not be responsible to any Bank, the Swing Line Bank or the Agent
for any statements, warranties or representations made in or in connection with
this Agreement; (iv) except as otherwise expressly provided herein, shall not
have any duty to ascertain or to inquire as to the performance or observance of
any of the terms, covenants or conditions of this Agreement, or to inspect the
property (including the books and records) of any Borrower; (v) shall not be
responsible to any Bank, the Swing Line Bank or the Agent for the due execution,
legality, validity, enforceability, collectability, genuineness, sufficiency or
value of this Agreement, or any other instrument or document furnished pursuant
hereto or thereto; (vi) except as otherwise expressly provided herein shall not
be responsible to any Bank, the Swing Line Bank or the Agent for the perfection
or priority of any Lien securing the Loans; and (vii) shall incur no liability
under or in respect of this Agreement, by acting upon any notice, consent,
certificate or other instrument or writing (which may be by telegram,
telecopier, cable or telex) reasonably believed by it to be genuine and signed
or sent by the proper party or parties.
SECTION 12.10 Floor Plan Agent and Affiliates; Comerica Bank and
Affiliates. Without limiting the right of any other Bank, the Swing Line Bank or
the Agent to engage in any business transactions with any Borrower or any of its
Affiliates, with respect to their Commitments, the Loans, if any, made by them
and the Notes, if any, issued to them, Comerica Bank shall have the same rights
and powers under this Agreement, any Note, the Swing Line Note or any of the
other Loan Documents as any other Bank and may exercise the same as though it
were not the Floor Plan Agent; and the term "Bank" or "Banks" shall, unless
otherwise expressly indicated, include Comerica Bank in its individual capacity.
Unless prohibited hereby, Comerica Bank and its Affiliates may be engaged in, or
may hereafter engage in, one or more Other Financings with the Company, any
other Borrower or any of their Affiliates, or may act as trustee on behalf of,
or depositary for, or otherwise engage in Other Activities with no
responsibility to account therefor to the Banks or the Agent. Without limiting
the rights and remedies of the Banks or the Agent specifically set forth in the
Loan Documents, no other Bank nor the Agent shall have any interest in (a) any
Other Activities, (b) any present or future guarantee by or for the account of
any of the Borrowers not contemplated or included in the Loan Documents, (c) any
present or future offset exercised by the Floor Plan Agent in respect of any
such Other Activities, (d) any present or future property taken as security for
any such Other Activities or (e) any property now or hereafter in the possession
or control of the Floor Plan Agent which may be or become security for the
Obligations of the Borrowers under the Loan Documents by reason of the general
description of indebtedness secured, or of property contained in any other
agreements, documents or instruments related to such Other Activities; provided,
however, that if any payment in respect of such guarantees or such property or
the proceeds thereof shall be applied to reduction of the Obligations evidenced
hereunder and by the Notes or the Swing Line Note, then each Bank and the Swing
Line Bank shall be entitled to share in such application according to its
equitable portion of such Obligations.
SECTION 12.11 Floor Plan Agent's Indemnity.
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(a) The Floor Plan Agent shall not be required to take any
action hereunder or to prosecute or defend any suit in respect of this
Agreement, the Notes, the Swing Line Note, or any other Loan Document unless
indemnified to the Floor Plan Agent's satisfaction by the Banks and the Swing
Line Bank, against loss, cost, liability and expense. If any indemnity furnished
to the Floor Plan Agent shall become impaired, it may call for additional
indemnity and cease to do the acts indemnified against until such additional
indemnity is given. In addition, the Banks and the Swing Line Bank agree to
indemnify the Floor Plan Agent (to the extent not reimbursed by the Borrowers),
ratably according to the respective aggregate principal amounts of the Notes
then held by each of them (or if no Notes are at the time outstanding, ratably
according to the respective Pro Rata Share of Total Commitments, or if no
Commitments are outstanding, the respective Pro Rata Share of Total Commitments
immediately prior to the time the Total Commitments ceased to be outstanding),
from and against any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of any
kind or nature whatsoever which may be imposed on, incurred by, or asserted
against the Floor Plan Agent in any way relating to or arising out of this
Agreement or any action taken or omitted by the Floor Plan Agent under this
Agreement, the Notes, the Swing Line Note and the other Loan Documents
(including action taken or omitted under Article II or Article IV of this
Agreement). Without limitation of the foregoing, each Bank and the Swing Line
Bank agrees to reimburse the Floor Plan Agent promptly upon demand for its
respective Pro Rata Share of the Total Commitments of any out-of-pocket expenses
(including reasonable counsel fees) incurred by the Floor Plan Agent in
connection with the preparation, execution, administration, or enforcement of,
or legal advice in respect of rights or responsibilities under, this Agreement,
the Notes, the Swing Line Note and the other Loan Documents to the extent that
the Floor Plan Agent is not reimbursed for such expenses by the Borrowers. The
provisions of this Section 12.11 shall survive the termination of this
Agreement, the payment of the Loans and/or the assignment of any of the Notes or
the Swing Line Note.
(b) Notwithstanding the foregoing, no Bank nor the Swing Line
Bank shall be liable under this Section 12.11 to the Floor Plan Agent for any
portion of such liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements due to the Floor Plan Agent
resulting from the Floor Plan Agent's gross negligence or willful misconduct.
Each Bank and the Swing Line Bank agrees, however, that it expressly intends,
under this Section 12.11, to indemnify the Floor Plan Agent ratably as aforesaid
for all such liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses and disbursements arising out of or resulting
from the Floor Plan Agent's sole ordinary or contributory negligence.
SECTION 12.12 Bank Credit Decision. Each Bank acknowledges that it has,
independently and without reliance upon the Floor Plan Agent, the Agent or any
other Bank and based on the financial statements referred to in Section 7.5 and
Section 9.5 and such other documents and information as it has deemed
appropriate, made its own credit analysis and decision to enter into this
Agreement. Each Bank and the Swing Line Bank also acknowledges that it will,
independently and without reliance upon the Floor Plan Agent, the Swing Line
Bank, the Agent or any other Bank and based on such documents and information as
it shall deem appropriate at the time, continue to
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make its own decisions in taking or not taking action under or based upon this
Agreement, the other Loan Documents, any related agreement or any document
furnished hereunder.
SECTION 12.13 Successor Floor Plan Agent. Subject to the appointment
and acceptance of a successor Floor Plan Agent as provided herein, the Floor
Plan Agent may resign at any time by giving written thirty (30) days notice
thereof to the Banks, the Agent and the Company. Prior to the effectiveness of
the termination of the existing Floor Plan Agent, the Floor Plan Agent shall
also be terminated as Swing Line Bank and all Swing Line Loans, Swing Line
Overdraft Loans outstanding as of such date and all amounts funded by the Floor
Plan Agent pursuant to Section 2.11 hereof shall be purchased by the Successor
Floor Plan Agent, and all of the obligations of the Floor Plan Agent pursuant to
any drafting agreements issued by the Floor Plan Agent pursuant to Section 2.8
hereof shall have been irrevocably assumed by the Successor Floor Plan Agent,
and the Successor Floor Plan Agent shall have agreed to indemnify the existing
Floor Plan Agent in connection with any costs, liabilities or obligations
arising out of, or in any way connected with, the transfer of such drafting
agreements to the Successor Floor Plan Agent. Upon any such resignation or
termination, the Required Banks shall have the right to appoint a successor
Floor Plan Agent, subject to the approval of the Company, which approval shall
not be unreasonably withheld. If no successor Floor Plan Agent shall have been
so appointed by the Required Banks, approved by the Company and shall have
accepted such appointment, all within thirty (30) calendar days after the
resignation or termination of the Floor Plan Agent, then the Agent shall, on
behalf of the Banks, appoint a successor Floor Plan Agent, which shall be a
commercial bank organized or licensed under the laws of the United States or of
any state thereof and having a combined capital and surplus of at least Five
Hundred Million Dollars ($500,000,000). Upon the acceptance of any appointment
as Floor Plan Agent hereunder, such successor Floor Plan Agent shall thereupon
succeed to and become vested with all the rights, powers, privileges and duties
of the retiring Floor Plan Agent, and the retiring Floor Plan Agent shall be
discharged from its duties and obligations under this Agreement. After any
retiring Floor Plan Agent's resignation as the Floor Plan Agent hereunder, the
provisions of this Article XII and Section 13.4 shall inure to its benefit as to
any actions taken or omitted to be taken by it while it was Floor Plan Agent
under this Agreement.
SECTION 12.14 Notice of Default. The Floor Plan Agent shall not be
deemed to have knowledge or notice of the occurrence of any Default or Event of
Default hereunder unless the Floor Plan Agent shall have received notice from a
Borrower, a Bank or the Swing Line Bank, stating that such Default or Event of
Default has occurred and stating that such notice is a "notice of default or
"notice of event of default", as applicable. If the Floor Plan Agent receives
such a notice, the Floor Plan Agent shall give notice thereof to the Banks, the
Swing Line Bank and the Agent. If the Floor Plan Agent receives such a notice,
the Floor Plan Agent shall be entitled to take action or refrain from taking
action with respect to such Default or Event of Default as provided in Sections
12.8 and 12.9.
SECTION 12.15 Documentation Agent; Co-Agent. None of the Banks
identified on the facing page or signature pages of this Agreement as
Documentation Agent or Co-Agent shall have any right, power, obligation,
liability or responsibility or duty under this Agreement other than those
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applicable to all Banks as such. Without limiting the foregoing, none of the
Banks so identified shall have or be deemed to have any fiduciary relations with
any Bank. Each Bank acknowledges that it has not relied, and will not rely, on
any of the Banks so identified in deciding to enter into this Agreement or in
taking any action hereunder.
ARTICLE XIII
MISCELLANEOUS
SECTION 13.1 Notices, Etc. The Agent, any Bank, or the holder of any of
the Notes or Loans, the Floor Plan Agent, and the Swing Line Bank giving consent
or notice or making any request of the Company or any of the other Borrowers
provided for hereunder, shall notify each Bank, the Floor Plan Agent and the
Agent thereof. In the event that the holder of any Note (including any Bank)
shall transfer such Note, it shall promptly so advise the Agent which shall be
entitled to assume conclusively that no transfer of any Note has been made by
any holder (including any Bank) unless and until the Agent receives written
notice to the contrary. All notices, consents, requests, approvals, demands and
other communications (collectively, "Communications") provided for herein shall
be in writing (including telecopy Communications) and mailed, telecopied or
delivered:
(a) if to the Company, at 950 Echo Lane, Suite #350, Houston,
Texas 77024, Attention of Scott Thompson, Chief Financial Officer (Telecopy No.
(713) 467-6468);
(b) if to the Borrowers, or any individual Borrower, at the
address of the Company specified in Section 13.1(a) above;
(c) if to the Agent, at 712 Travis Street, 5-CBBE-78, Houston,
Texas 77002, Attention of James R. Dolphin, Vice President (Telecopy No. (713)
216-6004) with a copy to Chase Securities, Inc., 707 Travis Street, 8-TCBN-96,
Houston, Texas 77002, Attention of Manager, Syndications (Telecopy No. (713)
216-2291);
(d) if to any Bank, as specified on the signature page for
such Bank hereto or, in the case of any Person who becomes a Bank after the date
hereof, as specified on the Assignment and Acceptance executed by such Person or
in the Administrative Questionnaire delivered by such Person or;
(e) in the case of any party hereto, such other address or
telecopy number as such party may hereafter specify for such purpose by notice
to the other parties;
(f) if to the Floor Plan Agent, at Comerica Bank National
Dealer Services, 1920 Main Street, Suite 1150 Irvine, California 92614,
Attention of Bruce Nowel, (Telecopy No. 949-476-1222) with a copy to Comerica
Bank, Attention: Chris Stearns (Telecopy No. 313-222- 9419).
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All Communications shall, when mailed, telecopied or delivered, be effective
when (i) mailed by certified mail, return receipt requested to any party at its
address specified above, on the signature page hereof or on the signature page
of such Assignment and Acceptance (or other address designated by such party in
a Communication to the other parties hereto), or (ii) telecopied to any party to
the telecopy number set forth above, on the signature page hereof or on the
signature page of such Assignment and Acceptance (or other telecopy number
designated by such party in a Communication to the other parties hereto) and
confirmed by a transmission report verifying the correct telecopier number and
number of pages and that such transmission was well transmitted, or (iii)
delivered personally to any party at its address specified above, on the
signature page hereof or on the signature page of such Assignment and Acceptance
(or other address designated by such party in a Communication to the other
parties hereto); provided, however, Communications to the Agent pursuant to
Article VI or Article XI shall not be effective until received by the Agent.
SECTION 13.2 Survival of Agreement. All covenants, agreements,
representations and warranties made by the Borrowers herein and in the other
Loan Documents and in the certificates or other instruments prepared or
delivered in connection with this Agreement shall be considered to have been
relied upon by the Banks and shall survive the making by the Banks of the Loans
and the execution and delivery to the Banks of the Notes evidencing such Loans
and shall continue in full force and effect as long as the principal of or any
accrued interest on any Note or any Commitment Fees or any other fee or amount
payable under the Notes or this Agreement is outstanding and unpaid and so long
as the Commitments of the Banks have not been terminated.
SECTION 13.3 Successors and Assigns; Participations.
(a) Whenever in this Agreement any of the parties hereto is
referred to, such reference shall be deemed to include the successors and
assigns of such party; and all covenants, promises and agreements by or on
behalf of the Borrowers, the Agent, the Floor Plan Agent or the Banks that are
contained in this Agreement shall bind and inure to the benefit of their
respective successors and assigns. Except as permitted by Section 10.3, no
Borrower may assign or transfer any of its rights or Obligations hereunder
without the prior written consent of all the Banks.
(b) Each Bank may assign to one or more Eligible Assignees all
or a portion of its interests, rights and obligations under this Agreement
(including a portion of its Commitment and the same portion of the Loans at the
time owing to it and the Note held by it); provided, however, that (i) except in
the case of an assignment to a Bank or an Affiliate of a Bank, the Company
(except during the continuance of an Event of Default) and the Agent must give
their prior written consent by countersigning the Assignment and Acceptance
(which consent shall not be unreasonably withheld), (ii) each such assignment
shall be of a constant, and not a varying, percentage of all the assigning
Bank's rights and obligations to this Agreement, and be pro rata between the
Acquisition Loan Commitment of such Bank and the Floor Plan Loan Commitment of
such Bank, (iii) the amount of the Commitment of the assigning Bank subject to
each such
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assignment (determined as of the date the Assignment and Acceptance with respect
to such assignment is delivered to the Agent) shall (A) be equal to the entire
amount of the Commitment of the assigning Bank or (B) if not equal to the entire
amount of the Commitment of the assigning Bank, in no event be less than Five
Million Dollars ($5,000,000) and shall be in an amount which is an integral
multiple of One Million Dollars ($1,000,000); provided, however, for purposes of
this Section 13.3(b)(iii)(B), that the retained Commitment of the assigning Bank
may not be less than Five Million Dollars ($5,000,000), (iv) the parties to each
such assignment shall execute and deliver to the Agent, for its acceptance and
recording in the Register, an Assignment and Acceptance substantially in the
form of Exhibit I hereto (an "Assignment and Acceptance"), together with any
Note subject to such assignment and the assignor shall pay a processing and
recordation fee of Three Thousand Dollars ($3,000) payable by the Bank's
assignor thereunder, and (v) the assignee shall deliver to the Agent an
Administrative Questionnaire. Upon such execution, delivery, acceptance and
recording, from and after the effective date specified in each Assignment and
Acceptance, which effective date shall be no later than five (5) Business Days
after the execution thereof unless otherwise agreed to by the assigning Bank,
the Eligible Assignee thereunder and the Agent, (x) the assignee thereunder
shall be a party hereto and under the other Loan Documents and, to the extent
provided in such Assignment and Acceptance, have the rights and obligations of a
Bank hereunder and under the other Loan Documents and (y) the Bank thereunder
shall, to the extent provided in such Assignment and Acceptance, be released
from its obligations under this Agreement.
(c) By executing and delivering an Assignment and Acceptance,
the assigning Bank thereunder and the assignee thereunder confirm to and agree
with each other and the other parties hereto as follows: (i) other than the
representation and warranty contained in Section 5.14 and that it is the legal
and beneficial owner of the interest being assigned thereby free and clear of
any adverse claim, such assigning Bank makes no representation or warranty and
assumes no responsibility with respect to any statements, warranties or
representations made in or in connection with the Agreement or the execution,
legality, validity, enforceability, genuineness, sufficiency or value of this
Agreement, any other Loan Document or any other instrument or document furnished
pursuant hereto; (ii) such assigning Bank makes no representation or warranty
and assumes no responsibility with respect to the financial condition of any of
the Borrowers or the performance or observance by any of the Borrowers of any of
their Obligations under this Agreement, the other Loan Documents or any other
instrument or document furnished pursuant hereto or thereto; (iii) such assignee
confirms that it has received a copy of this Agreement, together with copies of
the financial statements most recently delivered under either in Section 7.5 or
Section 9.5 and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into such
Assignment and Acceptance; (iv) such assignee will, independently and without
reliance upon the Agent, such Bank's assignor or any other Bank and based on
such documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action under
this Agreement; (v) such assignee confirms that it is an Eligible Assignee and
can make the representation contained in Section 5.14 and has, to the extent
required, complied with the covenants contained therein; (vi) such assignee
appoints and authorizes the Agent and the Floor Plan Agent to take such action
as agent on its behalf and to exercise such powers under this Agreement as are
delegated to the Agent and the Floor Plan Agent by the terms hereof, together
with such powers as are reasonably incidental thereto; and (vii) such assignee
agrees that it will
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perform in accordance with their terms all of the obligations which by the terms
of this Agreement are required to be performed by it as a Bank.
(d) The Agent shall maintain at its address referred to in
Section 13.1 a copy of each Assignment and Acceptance delivered to it and a
register for the recordation of the names and addresses of the Banks and the
Commitments of, and principal amount of the Loans owing to, each Bank from time
to time (the "Register"). The entries in the Register shall be conclusive, in
the absence of demonstrable error, and the Borrowers and the Banks may treat
each Person whose name is recorded in the Register as a Bank hereunder for all
purposes of this Agreement and the Loan Documents. The Register shall be
available for inspection by the Borrowers or any Bank at any reasonable time and
from time to time upon reasonable prior notice.
(e) Upon its receipt of an Assignment and Acceptance executed
by an assigning Bank and an Eligible Assignee together with the Note subject to
such assignment, the processing and recordation fee referred to in paragraph (b)
above and, if required, the Company's written consent to such assignment, the
Agent shall (subject to the consent of the Company to such assignment, if
required), if such Assignment and Acceptance has been completed and is in the
form of Exhibit I, (i) accept such Assignment and Acceptance, (ii) record the
information contained therein in the Register and (iii) give prompt notice
thereof to the Company and the Banks. Within five (5) Business Days after
receipt of notice, the Company, at its own expense, shall execute and deliver
and shall cause each of the other Borrowers to execute and deliver to the Agent
in exchange for the surrendered Note a new Note to the order of such Eligible
Assignee in an amount equal to the assigning Bank's Commitment assumed by it
pursuant to such Assignment and Acceptance, and a new Note to the order of the
assigning Bank in an amount equal to the portion of its Commitment retained by
the assigning Bank hereunder. Such new Notes shall be in an aggregate principal
amount equal to the aggregate principal amount of such surrendered Note, shall
be dated the effective date of such Assignment and Acceptance and shall
otherwise be in substantially the form of Exhibit C-1 or C-2 hereto, as
applicable. Each canceled Note shall be promptly returned to the Company.
(f) Each Bank may without the consent of any Borrower or the
Agent sell participations to one or more banks or other entities in all or a
portion of its rights and obligations under this Agreement (including all or a
portion of its Commitment and the Loans owing to it and the Note held by it);
provided, however, that (i) such Bank's obligations under this Agreement shall
remain unchanged, (ii) such Bank shall remain solely responsible to the other
parties hereto for the performance of such obligations, (iii) the participating
banks or other entities shall be entitled to the cost protection provisions and
Tax indemnities contained in Article V only to the same extent that the Bank
from which such participating bank or other entity acquired its participation
would be entitled to the benefit of such cost protection provisions and Tax
indemnities and (iv) the Borrowers, the Agent and the other Banks shall continue
to deal solely and directly with such Bank in connection with such Bank's rights
and obligations under this Agreement, and such Bank shall retain the sole right
to enforce the Obligations of any of the Borrowers relating to the Loans and to
approve any amendment, modification or waiver of any provision of this Agreement
(other than amendments, modifications or waivers with respect to any fees
payable hereunder or the amount of principal of
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or the rate at which interest is payable on the Loans, or the dates fixed for
payments of principal of or interest on the Loans).
(g) Any Bank or participant may, in connection with any
assignment or participation or proposed assignment or participation pursuant to
this Section 13.3, disclose to the assignee or participant or proposed assignee
or participant, any information relating to any Borrower furnished to such Bank
by or on behalf of any of the Borrowers; provided that prior to any such
disclosure, each such assignee or participant or proposed assignee or
participant shall agree (subject to customary exceptions) to preserve the
confidentiality of any confidential information relating to any Borrower
received from such Bank.
(h) Anything in this Section 13.3 to the contrary
notwithstanding, any Bank may at any time, without the consent of any Borrower
or the Agent, assign and pledge all or any portion of its Commitment and the
Loans owing to it to any Federal Reserve Bank (and its transferees) as
collateral security pursuant to Regulation A of the Board and any Operating
Circular issued by such Federal Reserve Bank. No such assignment shall release
the assigning Bank from its obligations hereunder.
(i) All transfers of any interest in any Note hereunder shall
be in compliance with all federal and state securities laws, if applicable.
Notwithstanding the foregoing sentence, however, the parties to this Agreement
do not intend that any transfer under this Section 13.3 be construed as a
"purchase" or "sale" of a "security" within the meaning of any applicable
federal or state securities laws.
SECTION 13.4 Expenses of the Banks; Indemnity.
(a) The Borrowers agree to pay all reasonable out-of-pocket
expenses reasonably incurred by the Agent and the Floor Plan Agent in connection
with the preparation of this Agreement, the Notes and the other Loan Documents
or with any amendments, modifications or waivers of the provisions hereof
(whether or not the transactions hereby contemplated shall be consummated) or
reasonably incurred by the Agent, the Floor Plan Agent or any Bank in connection
with the enforcement or protection of their rights in connection with this
Agreement or with the Loans made or the Notes issued hereunder, including the
reasonable fees and disbursements of Jackson Walker L.L.P., special counsel for
the Agents and Bodman, Longley & Dahling, LLP, special counsel for the Floor
Plan Agent, and, in connection with such enforcement or protection, the
reasonable fees and disbursements of other counsel for any Bank, including
allocated staff counsel costs for any Bank that elects to use the services of
staff counsel in lieu of outside counsel. The Borrowers agree to indemnify the
Banks from and hold them harmless against any documentary taxes, assessments or
charges made by any Governmental Authority by reason of the execution and
delivery of this Agreement or any of the Notes or other Loan Documents.
(b) THE BORROWERS EACH AGREE TO INDEMNIFY THE AGENT, THE FLOOR
PLAN AGENT AND THE BANKS AND THEIR AFFILIATES, DIRECTORS, OFFICERS, EMPLOYEES
AND AGENTS (EACH SUCH PERSON BEING
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CALLED AN "INDEMNITEE") AGAINST, AND TO HOLD THE BANKS AND SUCH OTHER INDEMNITEE
HARMLESS FROM, ANY AND ALL LOSSES, CLAIMS, DAMAGES, LIABILITIES AND RELATED
EXPENSES, INCLUDING REASONABLE COUNSEL FEES AND EXPENSES, INCURRED BY OR
ASSERTED AGAINST ANY INDEMNITEE ARISING OUT OF, IN ANY WAY CONNECTED WITH, OR AS
A RESULT OF (I) THE EXECUTION AND DELIVERY OF THIS AGREEMENT AND THE OTHER LOAN
DOCUMENTS CONTEMPLATED HEREBY, THE PERFORMANCE BY THE PARTIES HERETO AND THERETO
OF THEIR RESPECTIVE OBLIGATIONS HEREUNDER AND THEREUNDER (INCLUDING THE MAKING
OF THE COMMITMENT OF EACH BANK) AND CONSUMMATION OF THE TRANSACTIONS
CONTEMPLATED HEREBY AND THEREBY, (II) THE USE OF PROCEEDS OF THE LOANS OR (III)
ANY CLAIM, LITIGATION, INVESTIGATION OR PROCEEDING RELATING TO ANY OF THE
FOREGOING, WHETHER OR NOT ANY INDEMNITEE IS A PARTY THERETO; PROVIDED THAT SUCH
INDEMNITY SHALL NOT, AS TO ANY BANK, APPLY TO ANY SUCH LOSSES, CLAIMS, DAMAGES,
LIABILITIES OR RELATED EXPENSES THAT ARE DETERMINED BY A COURT OF COMPETENT
JURISDICTION BY FINAL AND NONAPPEALABLE JUDGMENT TO HAVE RESULTED FROM THE GROSS
NEGLIGENCE OR WILLFUL MISCONDUCT OF SUCH INDEMNITEE. THE BORROWERS AGREE,
HOWEVER, THAT THEY EXPRESSLY INTEND TO INDEMNIFY EACH INDEMNITEE FROM AND HOLD
EACH OF THEM HARMLESS AGAINST ANY AND ALL LOSSES, LIABILITIES, CLAIMS, DAMAGES
OR EXPENSES ARISING OUT OF THE ORDINARY SOLE OR CONTRIBUTORY NEGLIGENCE OF SUCH
INDEMNITEE, BUT NOT THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF SUCH
INDEMNITEE OR TO ANY OF THE FOREGOING ARISING SOLELY BY REASON OF CLAIMS BETWEEN
THE LENDERS OR ANY LENDER AND THE AGENT OR THE FLOOR PLAN AGENT.
(c) The provisions of this Section 13.4 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, or any investigation made by or on
behalf of any Bank. All amounts due under this Section 13.4 shall be payable
within ten (10) days following receipt by the Company of a detailed invoice or
statement setting forth in reasonable detail the basis of such claim and the
amounts so expended or lost or the amount of damages so incurred.
(d) No Indemnitee may settle any claim to be indemnified
without prior written notice to the Company; provided however, failure to
provide such prior written notice shall in no way affect the settlement of such
claims.
(e) In the case of any indemnification hereunder, the
Indemnitee shall give notice to the Company of any such claim or demand being
made against the Indemnitee and the
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Company may participate in such proceeding at its own expense if legal counsel
to the Company is acceptable to the Agent.
SECTION 13.5 Right of Setoff. If an Event of Default shall have
occurred and be continuing, each Bank and the Swing Line Bank are hereby
authorized at any time and from time to time, to the fullest extent permitted by
law, to set off and apply any and all deposits (general or special, time or
demand, provisional or final) at any time held and other indebtedness at any
time owing by such Bank, the Swing Line Bank or any branch Subsidiary or
Affiliate thereof to or for the credit or the account of the Borrowers against
any of and all the Obligations of the Borrowers now or hereafter existing under
this Agreement and the Note held by such Bank and the Swing Line Bank,
respectively, according to their respective rights as otherwise provided herein,
irrespective of whether or not such Bank shall have made any demand under this
Agreement or such Note and although such Obligations may be unmatured. Each Bank
and the Swing Line Bank agree promptly to notify the Borrowers after any such
setoff and application, but the failure to give such notice shall not affect the
validity of such setoff and application. The rights of each Bank and the Swing
Line Bank under this Section 13.5 are in addition to other rights and remedies
(including other rights of setoff) which such Bank and the Swing Line Bank may
have under applicable law.
SECTION 13.6 Governing Law; Jurisdiction.
(a) This Agreement, the Notes, the other Loan Documents and
all other documents executed in connection herewith, shall be deemed to be
contracts and agreements executed by the Borrowers, the Agent, the Floor Plan
Agent and the Banks under the laws of the State of Texas and of the United
States of America and for all purposes shall be governed by, and construed and
interpreted in accordance with, the laws of said state and of the United States
of America. Without limitation of the foregoing, nothing in this Agreement, the
Notes or the other Loan Documents shall be deemed to constitute a waiver of any
rights which any Bank may have under applicable federal legislation relating to
the amount of interest which such Bank may contract for, take, receive, or
charge in respect of any Loans, including any right to contract for, take,
receive, reserve and charge interest at the rate allowed by the law of the state
where such Bank is located. If and to the extent the laws of the State of Texas
are applicable for purposes of determining the Highest Lawful Rate, such term
shall mean the "weekly ceiling" from time to time in effect under Chapter 1D of
the Texas Credit Title, as amended (the "Act"), or, if permitted by applicable
law and effective upon the giving of the notices required by the Act (or
effective upon any other date otherwise specified by applicable law), the
"monthly", "quarterly" or "annualized" ceiling from time to time in effect under
the Act, whichever Agent shall elect to substitute for the "weekly ceiling," and
vice versa, each such substitution to have the effect provided in the Act, and
Agent shall be entitled to make such election from time to time one or more
times and, without notice to Borrower, to leave any such substitute rate in
effect for subsequent periods in accordance with the Act. The provisions of
Chapter 346, Texas Finance Code, as amended, do not apply to this Agreement or
any Note issued hereunder.
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(b) Each Borrower hereby irrevocably submits generally and
unconditionally for itself and in respect of its property to the non-exclusive
jurisdiction of any Texas state court, or any United States federal court,
sitting in the City of Houston or County of Harris, Texas, and to the
non-exclusive jurisdiction of any state or United States federal court sitting
in the state in which any of the Collateral is located, over any suit, action or
proceeding arising out of or relating to this Agreement or the Obligations. Each
Borrower hereby agrees and consents that, in addition to any methods of service
of process provided for under applicable law, all service of process in any such
suit, action or proceeding in any Texas state court, or any United States
federal court, sitting in the City of Houston or County of Harris, Texas may be
made by certified or registered mail, return receipt requested, directed to such
Borrower at its address stated in Section 13.1, or at a subsequent address of
which Administrative Agent received actual notice from such Borrower in
accordance with this Agreement, and service so made shall be complete five (5)
days after the same shall have been so mailed.
SECTION 13.7 Waivers; Amendments.
(a) No failure or delay of the Agent, the Floor Plan Agent or
any Bank in exercising any power or right hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of any such right or power, or
any abandonment or discontinuance of steps to enforce such a right or power,
preclude any other or further exercise thereof or the exercise of any other
right or power. The rights and remedies of the Agent, the Floor Plan Agent and
the Banks hereunder are cumulative and not exclusive of any rights or remedies
which they would otherwise have. No waiver of any provision of this Agreement,
the Notes or the other Loan Documents or consent to any departure by the
Borrowers therefrom shall in any event be effective unless the same shall be
authorized as provided in paragraph (b) below, and then such waiver or consent
shall be effective only in the specific instance and for the purpose for which
given. No notice or demand on the Borrowers in any case shall entitle the
Borrowers to any other or further notice or demand in similar or other
circumstances. Each holder of any Note shall be bound by any amendment,
modification, waiver or consent authorized as provided herein, whether or not
such Note shall have been marked to indicate such amendment, modification,
waiver or consent.
(b) Neither this Agreement, any Loan Document nor any
provision hereof or thereof may be waived, amended or modified except pursuant
to an agreement or agreements in writing entered into by the Borrowers and the
Required Banks; provided, however, that no such agreement shall (i) change the
principal amount of, or extend or advance the maturity of or any date for the
payment of any principal of or interest on, any Loan, or waive or excuse any
such payment or any part thereof, or, except as provided in this Agreement,
change the rate of interest on any Loan, or the amount of any fees payable to
any Bank without the written consent of each Bank affected thereby, (ii) change
the Commitment of any Bank without the written consent of such Bank or change
the Commitment Fees of any Bank without the written consent of each Bank, or
change the amount of the Total Commitment without the consent of each Bank,
(iii) release or defer the granting or perfecting of a Lien in any Collateral or
release any guaranty or similar undertaking provided by any Person or modify any
indemnity provided to the Banks hereunder or under the other Loan Documents
without the written consent of each Bank; provided however the Agent or the
Floor Plan Agent, as the case may be, shall be entitled to release any
Collateral or any guaranty which a Borrower is permitted to sell or transfer or
otherwise release under the terms of this Agreement or any Loan
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Document without notice to or any further action or consent of the Banks; or
(iv) amend or modify the provisions of this Section 13.7, Section 13.3, Section
4.6(c), Section 12.1(d), Section 6.7(a) or the definition of the "Required
Banks," without the written consent of each Bank; and provided further that no
such agreement shall amend, modify, waive or otherwise affect the rights or
duties of the Agent or the Floor Plan Agent hereunder without the written
consent of the Agent or the Floor Plan Agent, respectively. Each Bank and each
holder of any Note shall be bound by any modification or amendment authorized by
this Section 13.7 regardless of whether its Note shall be marked to make
reference thereto, and any consent by any Bank or holder of a Note pursuant to
this Section 13.7 shall bind any Person subsequently acquiring a Note from it,
whether or not such Note shall be so marked.
SECTION 13.8 Interest. Each provision in this Agreement and each other
Loan Document is expressly limited so that in no event whatsoever shall the
amount contracted for, charged, paid, or otherwise agreed to be paid, or
received to the Agent or any Bank for the use, forbearance or detention of the
money to be loaned under this Agreement or any Loan Document or otherwise
(including any sums paid as required by any covenant or obligation contained
herein or in any other Loan Document which is for the use, forbearance or
detention of such money), exceed that amount of money which would cause the
effective rate of interest to exceed the Highest Lawful Rate, and all amounts
owed under this Agreement and each other Loan Document shall be held to be
subject to reduction to the effect that such amounts so paid or agreed to be
paid which are for the use, forbearance or detention of money under this
Agreement or such Loan Document shall in no event exceed that amount of money
which would cause the effective rate of interest to exceed the Highest Lawful
Rate. Anything in this Agreement or any Note or any other Loan Document to the
contrary notwithstanding, none of the Borrowers shall ever be required to pay
unearned interest on any Note and shall never be required to pay interest on
such Note at a rate in excess of the Highest Lawful Rate, and if the effective
rate of interest which would otherwise be payable under this Agreement, such
Note and the other Loan Documents would exceed the Highest Lawful Rate, or if
the holder of such Note shall receive any unearned interest or shall receive
monies that are deemed to constitute interest which would increase the effective
rate of interest payable by the Borrowers under this Agreement and such Note to
a rate in excess of the Highest Lawful Rate, then (a) the amount of interest
which would otherwise be payable by the Borrowers under this Agreement, such
Note or any Loan Document shall be reduced to the amount allowed under
applicable law, and (b) any unearned interest paid by the Borrowers or any
interest paid by the Borrowers in excess of the Highest Lawful Rate shall be
credited on the principal of such Note (or, if the principal amount of such Note
shall have been paid in full, refunded to the Borrowers). It is further agreed
that, without limitation of the foregoing, all calculations of the rate of
interest contracted for, charged or received by any Bank under the Notes held by
it, or under this Agreement, are made for the purpose of determining whether
such rate exceeds the Highest Lawful Rate applicable to such Bank (such Highest
Lawful Rate being such Bank's "Maximum Permissible Rate"), and shall be made, to
the extent permitted by usury laws applicable to such Bank (now or
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hereafter enacted), by amortizing, prorating and spreading in equal parts during
the period of the full stated term of the Loans evidenced by said Notes all
interest at any time contracted for, charged or received by such Bank in
connection therewith. If at any time and from time to time (i) the amount of
interest payable to any Bank on any date shall be computed at such Bank's
Maximum Permissible Rate pursuant to this Section 13.8 and (ii) in respect of
any subsequent interest computation period the amount of interest otherwise
payable to such Bank would be less than the amount of interest payable to such
Bank computed at such Bank's Maximum Permissible Rate, then the amount of
interest payable to such Bank in respect of such subsequent interest computation
period shall continue to be computed at such Bank's Maximum Permissible Rate
until the total amount of interest payable to such Bank shall equal the total
amount of interest which would have been payable to such Bank if the total
amount of interest had been computed without giving effect to this Section 13.8.
SECTION 13.9 Severability; Conflicts.
(a) In the event any one or more of the provisions contained
in this Agreement, the Notes or any other Loan Document should be held invalid,
illegal or unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions contained herein or therein shall not
in any way be affected or impaired thereby. The parties shall endeavor in good
faith negotiations to replace the invalid, illegal or unenforceable provisions
with valid provisions, the economic effect of which comes as close as possible
to that of the invalid, illegal or unenforceable provisions.
(b) In the event any of the terms and provisions of any other
Loan Document are inconsistent with the terms and provisions set forth in this
Agreement, the terms and provisions set forth in this Agreement shall prevail.
SECTION 13.10 Counterparts. This Agreement may be executed in two or
more counterparts, each of which shall constitute an original but all of which
when taken together shall constitute but one contract, and shall become
effective as provided in Section 13.11.
SECTION 13.11 Binding Effect. This Agreement shall become effective on
the Closing Date, and thereafter shall be binding upon and inure to the benefit
of each Borrower, the Agent, the Floor Plan Agent and each Bank and their
respective successors and assigns, except that no Borrower shall have the right
to assign its rights hereunder or any interest herein except as provided in
Section 13.3(a).
SECTION 13.12 Further Assurances. Each Borrower shall make, execute or
endorse, and acknowledge and deliver or file or cause the same to be done, all
such vouchers, invoices, notices, certifications and additional agreements,
undertakings, conveyances, deeds of trust, mortgages, transfers, assignments,
financing statements or other assurances, and take any and all such other
action, as the Agent or the Floor Plan Agent may, from time to time, deem
reasonably necessary or proper in connection with any of the Loan Documents, the
Obligations of the Borrowers thereunder or for better assuring and confirming
unto the Banks all or any part of the security for any of such Obligations.
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SECTION 13.13 Subsidiary Solvency Savings Clause. Each of the Borrowers
acknowledges the receipt and acceptance of valuable consideration as of the
Closing Date and thereafter in connection with this Agreement; and each such
Borrower further acknowledges and agrees that the direct benefits and enrichment
it derives from being a party to this Agreement constitute a reasonably
equivalent value to it in exchange for the joint and several liability it has
incurred pursuant to this the Agreement. Further, each of the Borrowers
acknowledges the interdependence by and among the other Borrowers in
successfully carrying out their business operations. Each of the Borrowers
represents that it is solvent prior to entering into this Agreement and that the
transactions completed hereby will not render it insolvent and will not cause it
to become financially non-viable in the future; provided, however in the event
that the Indebtedness incurred by any Borrower pursuant to this Agreement or the
transactions contemplated hereby would constitute a "fraudulent transfer"as to
any such Borrower under Section 548 of the Federal Bankruptcy Code or pursuant
to any applicable state law governing "fraudulent transfers" because such
Borrower is deemed to have become insolvent as a result of incurring such
Indebtedness, then, in such event, the liability of any such Borrower hereunder
shall be deemed for all purposes to be equal to one dollar less than that amount
of Indebtedness which would not render such Borrower insolvent.
SECTION 13.14 Joint and Several Liability and Related Matters.
(a) Each of Floor Plan Borrowers other than the Company
authorizes the Company with full power and authority as attorney-in-fact, to
execute and deliver Requests for Borrowings, requests for issuance of Letters of
Credit and each other instrument, certificate and report to be delivered by any
Floor Plan Borrower to the Agent, the Floor Plan Agent and the Banks pursuant to
this Agreement or any Loan Document. Each of the Floor Plan Borrowers other than
the Company agrees that it shall be bound by any action taken by the Company on
its behalf pursuant to such appointment.
(b) The obligations of each of the Ford Borrowers under this
Agreement and the Loan Documents shall be joint and several only with all other
Ford Borrowers and the liability of each of the Ford Borrowers shall be limited
to an amount equal to the Ford Borrower Liability Amount and the Collateral of
all Ford Borrowers granted or pledged to the Agent for the benefit of the Banks
to secure the Obligations shall secure only that portion of the Obligations
attributable to all of the Ford Borrowers as hereinabove provided. The
obligations of each of the GM Borrowers under this Agreement and the Loan
Documents shall be joint and several with all the Borrowers and (except as
provided in the GM Borrower Guaranty executed by each of the GM Borrowers) the
liability of each of the GM Borrowers shall be limited to an amount equal to the
GM Borrower Liability Amount and the Collateral of all GM Borrowers granted or
pledged to the Agent for the benefit of the Banks to secure the Obligations
shall secure only that portion of the Obligations attributable to all of the GM
Borrowers as hereinabove provided. The obligations of all other Borrowers under
this Agreement and the other Loan Documents are joint and several and not
limited in any way whatsoever.
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(c) Except as herein provided, each Borrower acknowledges and
agrees that it is the intent of the parties that each Borrower be primarily
liable for the obligations as a joint and several obligor. It is the intention
of the parties that, except as herein provided, with respect to liability of any
Borrower hereunder arising solely by reason of its being jointly and severally
liable for Loans and Letter of Credit Obligations and other extensions of credit
taken by other Borrowers, the obligations of such Borrower shall be absolute,
unconditional and irrevocable irrespective of:
(i) any lack of validity, legality or
enforceability of this Agreement, any Note or any Loan
Document as to any other Borrower;
(ii) the failure of any Bank or any holder of any
Note:
(A) to enforce any right or remedy
against any Borrower or any other Person
(including any surety) under the
provisions of this Agreement, such Note
or otherwise, or
(B) to exercise any right or remedy
against any surety of, or Collateral
securing, any obligations;
(iii) any change in the time, manner or place of
payment of, or in any other term of, all or any of the
Obligations, or any other extension, compromise or renewal of
any Obligations;
(iv) any reduction, limitation, impairment or
termination of any Obligations with respect to any other
Borrower for any reason, including any claim of waiver,
release, surrender, alteration or compromise, and shall not be
subject to (and each Borrower hereby waives any right to or
claim of) any defense (other than the defense of payment in
full of the Obligations) or setoff, counterclaim, recoupment
or termination whatsoever by reason of the invalidity,
illegality, nongenuineness, irregularity, compromise,
unenforceability of, or any other event or occurrence
affecting, any Obligations with respect to any other Borrower;
(v) any addition, exchange, release, surrender or
nonperfection of any Collateral, or any amendment to or waiver
or release or addition of, or consent to departure from, any
guaranty, held by any Bank or any holder of the Notes securing
any of the Obligations; or
(vi) any other circumstance which might otherwise
constitute a defense (other than the defense of payment in
full of the Obligations) available to, or a legal or equitable
discharge of, any other Borrower, any surety or any guarantor.
THIRD AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
123
<PAGE> 125
(d) Each Borrower agrees that its liability hereunder
including, without limitation, any joint and several liability of such Borrower,
shall continue to be effective or be reinstated, as the case may be, if at any
time any payment (in whole or in part) of any of the Obligations is rescinded or
must be restored by any Bank or any holder of any Note, upon the insolvency,
bankruptcy or reorganization of any Borrower as though such payment had not been
made.
(e) Each Borrower hereby expressly waives: (i) notice of the
Banks' acceptance of this Agreement; (ii) notice of the existence or creation or
non payment of all or any of the Obligations other than notices expressly
provided for in this Agreement; (iii) presentment, demand, notice of dishonor,
protest, and all other notices whatsoever other than notices expressly provided
for in this Agreement; and (iv) all diligence in collection or protection of or
realization upon the Obligations or any part thereof, any obligation hereunder,
or any security for or guaranty of any of the foregoing, subject, however, in
the case of Collateral in the possession of the Agent or a Bank to such Person's
duty to use reasonable care in the custody and preservation of such Collateral.
(f) No delay on any of the Banks' part in the exercise of any
right or remedy shall operate as a waiver thereof, and no single or partial
exercise by any of the Banks of any right or remedy shall preclude other or
further exercise thereof or the exercise of any other right or remedy. No action
of any of the Banks permitted hereunder shall in any way affect or impair any
such Banks' rights or any Borrower's Obligations under this Agreement.
(g) Each Borrower hereby represents and warrants to each of
the Banks that it now has and will continue to have independent means of
obtaining information concerning the Borrowers' affairs, financial condition and
business. Banks shall not have any duty or responsibility to provide any
Borrower with any credit or other information concerning the Borrowers' affairs,
financial condition or business which may come into the Banks' possession.
SECTION 13.15 WAIVER OF JURY TRIAL. THE BANKS, THE AGENT, THE FLOOR
PLAN AGENT AND EACH OF THE BORROWERS AFTER CONSULTING OR HAVING HAD THE
OPPORTUNITY TO CONSULT WITH COUNSEL, KNOWINGLY, VOLUNTARILY AND INTENTIONALLY
WAIVE ANY RIGHT ANY OF THEM MAY HAVE TO A TRIAL BY JURY IN ANY LITIGATION BASED
UPON OR ARISING OUT OF THIS AGREEMENT OR ANY LOAN DOCUMENT OR ANY OF THE
TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT OR ANY COURSE OF CONDUCT, DEALING,
STATEMENTS (WHETHER ORAL OR WRITTEN) OR ACTION OF ANY OF THEM. NEITHER THE
BANKS, THE AGENT, FLOOR PLAN AGENT NOR ANY OF THE BORROWERS SHALL SEEK TO
CONSOLIDATE, BY COUNTERCLAIM OR OTHERWISE, ANY SUCH ACTION IN WHICH A JURY TRIAL
HAS BEEN WAIVED WITH ANY OTHER ACTION IN WHICH A JURY TRIAL CANNOT BE OR HAS NOT
BEEN WAIVED. THESE PROVISIONS SHALL NOT BE DEEMED TO HAVE BEEN MODIFIED IN ANY
RESPECT OR RELINQUISHED BY THE BANKS, THE AGENT, THE
THIRD AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
124
<PAGE> 126
FLOOR PLAN AGENT OR ANY OF THE BORROWERS EXCEPT BY A WRITTEN INSTRUMENT EXECUTED
BY ALL OF THEM.
SECTION 13.16 Loans Under Prior Credit Agreement. On the Closing Date:
(a) The Company shall pay all accrued and unpaid commitment
fees outstanding under the Second Amended and Restated Agreement for the account
of each "lender" under the Prior Credit Agreement;
(b) each Loan under the Second Amended and Restated Agreement
shall be renewed and extended and shall on the Closing Date constitute a Loan of
the same Type as under the Second Amended and Restated Agreement and each such
Loan that is a Eurodollar Loan having an Interest Period extending beyond the
Closing Date shall be deemed to be renewed and extended under the same LIBO Rate
and Interest Period applicable thereto and the Interest Period for each such
Loan shall not be terminated solely as a result of the execution and delivery by
the Borrowers of this Agreement, the Notes and the other Loan Documents;
(c) each Letter of Credit outstanding under the Second Amended
and Restated Agreement shall be deemed to have been issued under the Second
Amended and Restated Agreement as amended by this Agreement without further
consideration or any fees under the Second Amended and Restated Agreement; and
(d) the Second Amended and Restated Agreement and the
Commitments thereunder shall terminate and be superseded by this Agreement.
SECTION 13.17 FINAL AGREEMENT OF THE PARTIES. THIS WRITTEN AGREEMENT
(INCLUDING THE EXHIBITS AND SCHEDULES HERETO), THE NOTES, THE AGENT'S LETTER,
THE FLOOR PLAN AGENT'S LETTER AND THE OTHER LOAN DOCUMENTS CONSTITUTE A "LOAN
AGREEMENT" AS DEFINED IN SECTION 26.2(a) OF THE TEXAS BUSINESS AND COMMERCE
CODE, AND REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES RELATING TO THE
SUBJECT MATTER HEREOF AND THEREOF AND MAY NOT BE CONTRADICTED BY EVIDENCE OF
PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE
NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES RELATING TO THE SUBJECT MATTER
HEREOF AND THEREOF. Any previous agreement among the parties with respect to the
subject matter hereof is superseded by this Agreement. Nothing in this
Agreement, expressed or implied, is intended to confer upon any party other than
the parties hereto any rights, remedies, obligations or liabilities under or by
reason of this Agreement.
* * *
Signatures following on succeeding pages
THIRD AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
125
<PAGE> 127
IN WITNESS HEREOF, the Borrowers, the Banks listed on the signature
pages hereto, the Agent and the Floor Plan Agent have caused this Agreement to
be duly executed by their respective authorized officers as of the day and year
first above written.
BORROWERS: GROUP 1 AUTOMOTIVE, INC.,
a Delaware corporation
By:
--------------------------------------------
Name: Scott Thompson
Title: Senior Vice President
COURTESY NISSAN, INC., a Texas corporation; FOYT
MOTORS, INC., a Texas corporation; BOB HOWARD
AUTOMOTIVE-H, INC., an Oklahoma corporation; BOB
HOWARD DODGE, INC., an Oklahoma corporation; BOB
HOWARD MOTORS, INC., an Oklahoma corporation;
HOWARD PONTIAC-GMC, INC., an Oklahoma corporation;
ROUND ROCK NISSAN, INC., a Texas corporation; SMC
LUXURY CARS, INC., a Texas corporation; MIKE SMITH
AUTOPLAZA, INC., a Texas corporation; SMITH, LIU &
CORBIN, INC., a Texas corporation; SMITH, LIU &
KUTZ, INC., a Texas corporation; SOUTHWEST TOYOTA,
INC., a Texas corporation; TOWN NORTH IMPORTS,
INC., a Texas corporation; TOWN NORTH NISSAN, INC.,
a Texas corporation; TOWN NORTH SUZUKI, INC., a
Texas corporation; COURTESY FORD, INC., a Florida
corporation; GROUP 1 FORD, INC., a Texas
corporation; BOB HOWARD NISSAN, INC., an Oklahoma
corporation; KOONS FORD, INC., a Florida
corporation; PERIMETER FORD, INC., a Delaware
corporation; MIKE SMITH AUTOMOTIVE-N, INC., a Texas
corporation; MIKE SMITH AUTOPLEX, INC., a Texas
corporation; MIKE SMITH AUTOPLEX BUICK, INC., a
Texas corporation; MIKE SMITH AUTOPLEX DODGE, INC.,
a Texas corporation; MIKE SMITH AUTOPLEX-GERMAN
IMPORTS, INC., a Texas corporation; MIKE SMITH
AUTOPLEX-V, INC., a Texas corporation; CASA
CHRYSLER PLYMOUTH JEEP, INC., a New Mexico
corporation; CASA CHEVROLET, INC., a New Mexico
corporation; FLAMINGO FORD, INC., a Florida
THIRD AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
<PAGE> 128
corporation; HIGHLAND AUTOPLEX, INC., a Texas
corporation; SMITH AUTOMOTIVE GROUP, INC., a Texas
corporation; WORLD AUTOMOTIVE GROUP, INC., a
Florida corporation; MMK INTERESTS, INC., a Texas
corporation; BOB HOWARD CHEVROLET, INC., an
Oklahoma corporation; HOWARD AUTOMOTIVE GROUP,
INC., an Oklahoma corporation; MIKE SMITH L/M,
INC., a Delaware corporation; MIKE SMITH GM, INC.,
a Delaware corporation; MCKINNEY DODGE, INC., a
Texas corporation; LUBY CHEVROLET CO., a Delaware
corporation; MAXWELL TEXAS MANAGEMENT, INC., a
Texas corporation; BOB HOWARD AUTOMOTIVE-EAST,
INC., an Oklahoma corporation; MIKE SMITH MOTORS,
INC., a Texas corporation; SUNSHINE BUICK PONTIAC
GMC TRUCK, INC., a New Mexico corporation; MIKE
SMITH IMPORTS, INC., a Texas corporation; GROUP 1
REALTY, INC., a Delaware corporation; GPI ATLANTA,
INC., a Delaware corporation; KUTZ AUTO GROUP,
INC., a Texas corporation; MIKE SMITH AUTOMOTIVE-H,
INC., a Texas corporation; KINGWOOD MOTORS-H, INC.,
a Texas corporation; LUBBOCK MOTORS, INC., a Texas
corporation; BOB HOWARD AUTOMOTIVE-A, INC., an
Oklahoma corporation; BOB HOWARD AUTOMOTIVE-J,
INC., an Oklahoma corporation; BOB HOWARD GERMAN
IMPORTS, INC., an Oklahoma corporation; BOB HOWARD
AUTOMOTIVE-V, INC., an Oklahoma corporation; MCCALL
AUTOMOTIVE GROUP, INC., a Delaware corporation;
LUBBOCK AUTOMOTIVE-M, INC., a Delaware corporation;
JOHNS AUTOMOTIVE GROUP, INC., a New Mexico
corporation
By:
---------------------------------------------
Name: Scott Thompson
Title: Vice President
MAXWELL CHRYSLER, PLYMOUTH, DODGE, JEEP, EAGLE,
LTD., a Texas limited partnership; PRESTIGE
CHRYSLER PLYMOUTH SOUTH, LTD., a Texas limited
partnership; PRESTIGE CHRYSLER PLYMOUTH NORTHWEST,
LTD., a Texas limited partnership; HIGHLAND
AUTOPLEX II, LTD., a Texas limited partnership
THIRD AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
<PAGE> 129
By: MMK INTERESTS, INC., a Texas corporation
By:
---------------------------------------------
Name: Scott Thompson
Title: Vice President
MAXWELL FORD, LTD.,
a Texas limited partnership
By: MAXWELL TEXAS MANAGEMENT, INC., a Texas
corporation
By:
---------------------------------------------
Name: Scott Thompson
Title: Vice President
COLONIAL CHRYSLER-PLYMOUTH, LTD., a Texas limited
partnership; CHAPERRAL DODGE, LTD., a Texas limited
partnership
By: KUTZ AUTO GROUP, INC., a Texas corporation
By:
---------------------------------------------
Name: Scott Thompson
Title: Assistant Vice President
THIRD AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
<PAGE> 130
LUBBOCK MOTORS-F, LTD., a Texas limited
partnership; LUBBOCK MOTORS-T, LTD., a Texas
limited partnership; ROCKWALL AUTOMOTIVE-F, LTD., a
Texas limited partnership; AMARILLO MOTORS-C, LTD.,
a Texas limited partnership; AMARILLO MOTORS-J,
LTD., a Texas limited partnership; AMARILLO
MOTORS-F, LTD., a Texas limited partnership
By: LUBBOCK MOTORS, INC., a Texas corporation
By:
---------------------------------------------
Name: Scott Thompson
Title: President
THIRD AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
<PAGE> 131
PRESTIGE MAXWELL, INC., a Delaware corporation;
MAXWELL HOLDINGS, INC., a Delaware corporation;
GROUP 1 HOLDINGS, INC., a Delaware corporation
By:
---------------------------------------------
Name: Robert E. Howard II
Title: President
DELAWARE ACQUISITION-CC, L.L.C., a Delaware
limited liability company
By: PRESTIGE MAXWELL, INC., a Delaware
corporation
By:
---------------------------------------------
Name: Robert E. Howard II
Title: President
DELAWARE ACQUISITION-GM, L.L.C., a Delaware
limited liability company
By: GROUP 1 HOLDINGS-GM, a Delaware
corporation
By:
---------------------------------------------
Name: Robert E. Howard II
Title: President
THIRD AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
<PAGE> 132
DELAWARE ACQUISITION-T, L.L.C., a Delaware limited
liability company
By: GROUP 1 HOLDINGS-T, a Delaware corporation
By:
---------------------------------------------
Name: Robert E. Howard II
Title: President
DELAWARE ACQUISITION-F, L.L.C., a Delaware limited
liability company
By: MAXWELL HOLDINGS, INC., a Delaware
corporation
By:
---------------------------------------------
Name: Robert E. Howard II
Title: President
THIRD AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
<PAGE> 133
AGENT AND ISSUING BANK: CHASE BANK OF TEXAS, N.A.
By:
---------------------------------------------
Name: James R. Dolphin
Title: Vice President
THIRD AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
<PAGE> 134
FLOOR PLAN AGENT COMERICA BANK
AND SWING LINE BANK
By:
---------------------------------------------
Name: Joseph A. Moran
Title: Senior Vice President
THIRD AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
<PAGE> 135
BANKS: NATIONSBANK, N.A., DBA
BANK OF AMERICA, N.A.
By:
---------------------------------------------
Name: Bruce Clay
Title: Vice President
Address: 140 Cypress Station #208
Houston, Texas 77090
Telecopy No.: 281-537-3246
Domestic Lending Office
Attention: Bruce Clay
Eurodollar Lending Office
Attention: Bruce Clay
THIRD AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
<PAGE> 136
COMERICA BANK
By:
---------------------------------------------
Name: Joseph A. Moran
Title: Senior Vice President
THIRD AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
<PAGE> 137
U.S. BANK NATIONAL ASSOCIATION
By:
---------------------------------------------
Name: Michael Slonski
Title: Vice President
Address: 10800 N.E. 8th Street, Suite 900
Bellevue, Washington 98004
Telecopy No.: (425) 450-5762
Domestic Lending Office
Attention:
-------------------------------
Eurodollar Lending Office
Attention:
-------------------------------
THIRD AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
<PAGE> 138
CHASE BANK OF TEXAS, N.A.
By:
----------------------------------------------
Name: James R. Dolphin
Title: Vice President
Address: 712 Main Street
5-CBBE-78
Houston, Texas 77002
Telecopy No.: (713) 216-6004
Domestic Lending Office
Attention: Gale Manning
Eurodollar Lending Office
Attention: Gale Manning
THIRD AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
<PAGE> 139
BANKBOSTON, N.A.
By:
----------------------------------------------
Name: Mark Mazmanian
Title: Vice President
Address: 100 Rust Kraft Road
MS: MA EAS 77-01-14
Dedham, MA 02026
Telecopy No.: (781) 320-2880
Domestic Lending Office
Attention:
-----------------------------
Eurodollar Lending Office
Attention:
-----------------------------
THIRD AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
<PAGE> 140
BANK ONE TEXAS, N.A.
By:
-----------------------------------------------
Name: Jeff Edge
Title: Vice President
Address: 1424 E. North Belt
Suite 100
Houston, TX 77032
Telecopy No.: (281) 985-2931
Domestic Lending Office
Attention:
--------------------------------
Eurodollar Lending Office
Attention:
--------------------------------
THIRD AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
<PAGE> 141
NATIONAL CITY BANK OF KENTUCKY
By:
----------------------------------------------
Name: Tom Gurbach
Title: Vice President
Address: National City Tower, 37th Floor
101 S. Fifth Street
Louisville, KY 40202
Telecopy No.: (502) 581-5122
Domestic Lending Office
Attention:
--------------------------------
Eurodollar Lending Office
Attention:
--------------------------------
THIRD AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
<PAGE> 142
WORLD OMNI FINANCIAL CORP.
By:
----------------------------------------------
Name: Bruce Wohlleb
Title: Vice President
Address: 120 NW 12th Avenue
Deerfield Beach, FL 33442
Telecopy No.: (800) 422-6704
Domestic Lending Office
Attention:
------------------------------
Eurodollar Lending Office
Attention:
------------------------------
THIRD AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
<PAGE> 143
THE BANK OF NOVA SCOTIA
By:
----------------------------------------------
Name: Brian Allen
Title: Senior Relationship Manager
Address: One Liberty Plaza, 26th Floor
New York, NY 10006
Telecopy No.: (212) 225-5090
Domestic Lending Office
Attention:
------------------------------
Eurodollar Lending Office
Attention:
------------------------------
THIRD AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
<PAGE> 144
BANK OF OKLAHOMA, N.A.
By:
----------------------------------------------
Name: Laura Christofferson
Title: Vice President
Address: 201 Robert S. Kerr
Oklahoma City, Oklahoma 73102
Telecopy No.: (405) 272-2588
Domestic Lending Office
Attention:
-------------------------------
Eurodollar Lending Office
Attention:
-------------------------------
THIRD AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
<PAGE> 145
FORD MOTOR CREDIT COMPANY
By:
----------------------------------------------
Name: Bill Van Horn
Title:
-------------------------------------------
Address: The American Road
Dearborn, Michigan 48121
Telecopy No.: (313) 390-5459
Domestic Lending Office
Attention:
-------------------------------
Eurodollar Lending Office
Attention:
-------------------------------
THIRD AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
<PAGE> 146
TOYOTA MOTOR CREDIT CORPORATION
By:
---------------------------------------------
Name: Joseph Steib
Title:
------------------------------------------
Address: 19001 S. Western Ave.
Torrance, California 90509-2958
Telecopy No.: (800) 643-9811
Domestic Lending Office
Attention:
-------------------------------
Eurodollar Lending Office
Attention:
-------------------------------
THIRD AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
