0001031203
false
0001031203
2024-04-30
2024-04-30
UNITED STATES
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):
April 30, 2024
Group 1 Automotive, Inc
.
(Exact name of Registrant as specified in its charter)
Delaware 1-13461 76-0506313
(State or other jurisdiction of (Commission (I.R.S. Employer
incorporation or organization) File Number) Identification No.)
800 Gessner
,
Suite 500
Houston
,
Texas
77024
(Address of principal executive offices, including zip code)
Registrant's telephone number, including area code (
713
)
647-5700
N/A
(Former name or former address, if changed since last report)
Check the appropriate box below if the Form 8-K filing is intended to
simultaneously satisfy the filing obligation of the registrant under any of
the following provisions (see General Instructions A.2. below):
Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 40.14d-2(b))
Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
Securities registered pursuant to Section 12(b) of the Act:
Title of each class Ticker symbol(s) Name of exchange on which registered
Common stock, par value $0.01 per share GPI New York Stock Exchange
Indicate by check mark whether the registrant is an emerging growth company as
defined in Rule 405 of the Securities Act of 1933 ((s) 230.405 of this
chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 ((s) 240.12b-2
of this chapter).
Emerging growth company
If an emerging growth company, indicate by check mark if the registrant has
elected not to use the extended transition period for complying with any new
or revised financial accounting standards provided pursuant to Section 13(a)
of the Exchange Act.
..
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Item 1.01 Entry into a Material Definitive Agreement.
Effective April 30, 2024 (the "Closing Date"), Group 1 Automotive, Inc. (the
"Company") and certain subsidiaries of the Company entered into an amendment
(together with certain commitment increase agreements entered into in
connection therewith, collectively, the "Increase Documents") to the Company's
existing twelfth amended and restated revolving credit agreement (the "Credit
Agreement" and the revolving credit facility established thereby, the "Credit
Facility"), which Increase Documents increased the total commitments under the
Credit Facility by $500.0 million and allow for future increases of up to an
additional $500.0 million, for an aggregate maximum borrowing amount of $2.5
billion as of the Closing Date and a total Credit Facility size of up to $3.0
billion. The description of the Credit Facility set forth above does not
purport to be complete and is qualified in its entirety by reference to the
provisions of the Credit Facility, which is filed hereto as Exhibit 10.1 and
is incorporated herein by reference.
Item 2.03 Creation of a Direct Financial Obligation or an Obligation under
an Off-Balance Sheet Arrangement of a Registrant.
The information provided in Item 1.01 of this Current Report on Form 8-K is
incorporated herein by reference.
Item 7.01 Regulation FD Disclosure.
On April 30, 2024 the Company issued a press release announcing that it had
completed a $500.0 million increase to its revolving syndicated credit
facility.
The information, including the press release, furnished under this Item 7.01
shall not be deemed "filed" for the purposes of Section 18 of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), or otherwise subject to
the liabilities of that section, and shall not be deemed incorporated by
reference into any other filing by the Company under the Exchange Act or the
Securities Act of 1933, as amended, except as otherwise expressly stated in
such filing.
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits.
Exhibit No. Description
10.1+ Third Amendment to Twelfth Amended and Restated Revolving
Credit Agreement dated effective as of April 30, 2024.
99.1 Press release of Group 1 Automotive,
Inc., dated as of April 30, 2024.
104 Cover Page Interactive Data File (embedded
within the Inline XBRL document)
+ Exhibit omitted certain immaterial schedules and exhibits pursuant to Item
601(a)(5) of Regulation S-K and will be furnished to the Securities and
Exchange Commission upon request.
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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.
Date: May 1, 2024 By: /s/ Gillian A. Hobson
Name: Gillian A. Hobson
Title: Senior Vice President
Exhibit 10.1
THIRD AMENDMENT TO
TWELFTH AMENDED AND RESTATED
REVOLVING CREDIT AGREEMENT
THIS THIRD AMENDMENT TO TWELFTH AMENDED AND RESTATED REVOLVING CREDIT
AGREEMENT (this "
Amendment
") is made and entered into and effective as of April 30, 2024 (the "
Third Amendment Effective Date
"), by and among
GROUP 1 AUTOMOTIVE, INC.
, a Delaware corporation (the "
Company
"), each of the Subsidiaries of the Company listed on the signature pages
hereof (the Company and such Subsidiaries of the Company are sometimes
referred to herein as, individually, a "
Borrower
," and collectively, the "
Borrowers
"), the lenders listed on the signature pages hereof (the "
Lenders
"),
U.S. BANK NATIONAL ASSOCIATION
, as Administrative Agent for the Lenders (in such capacity, the "
Agent
"), and
COMERICA BANK
, as Floor Plan Agent for the Lenders (in such capacity, the "
Floor Plan Agent
").
WITNESSETH:
WHEREAS, the Company, the Borrowers, the Lenders, the Agent and the Floor Plan
Agent are parties to that certain Twelfth Amended and Restated Revolving
Credit Agreement dated effective as of March 9, 2022, as amended by that
certain First Amendment to Twelfth Amended and Restated Revolving Credit
Agreement dated as of August 18, 2022 and that certain Second Amendment to
Twelfth Amended and Restated Revolving Credit Agreement dated as of December
8, 2023 (as the same may be further amended, modified, extended, renewed or
restated from time to time, the "
Credit Agreement
;" all capitalized terms used and not otherwise defined in this Amendment
shall have the respective meanings ascribed to them in the Credit Agreement as
amended by this Amendment);
WHEREAS, immediately prior to the effectiveness of this Amendment, the
Borrowers exercised their right pursuant to
Section 5.18(a)
of the Credit Agreement, and one or more of the Lenders fully subscribed, to
increase the Total Commitment in the aggregate amount of $400,000,000 (the "
Initial Exercise
");
WHEREAS, following the Initial Exercise, the Borrowers have requested to modify
Section 5.18
of the Credit Agreement to allow for additional increases in the Total
Commitment in an aggregate amount not to exceed $600,000,000;
WHEREAS, the Company has requested that the Required Lenders, the Agent and
the Floor Plan Agent agree to the amendments to the Credit Agreement in the
manner hereinafter set forth; and
WHEREAS, concurrently with the effectiveness of this Amendment, the Borrowers
desire to exercise their right pursuant to
Section 5.18(a)
of the Credit Agreement (as amended), to increase the Total Commitment in the
additional aggregate amount of $100,000,000 (the "
Additional Exercise
");
WHEREAS, the Lenders that are signatories to this Amendment, constituting the
Required Lenders under the Credit Agreement, have agreed to the amendments to
the Credit Agreement in the manner hereinafter set forth.
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Company, the other Borrowers, the Lenders, the Agent and the
Floor Plan Agent hereby agree as follows:
32291017
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1.
From and after the Third Amendment Effective Date, the Credit Agreement is
amended pursuant to this Amendment to delete the stricken text (indicated
textually in the same manner as the following example:
stricken text
) and to add the double-underlined text (indicated textually in the same
manner as the following example:
double-underlined text
) as set forth in the pages of the amended Credit Agreement attached as
Annex A
to this Amendment.
2.
The Lenders hereby waive, solely with respect to the Initial Exercise and the
Additional Exercise, the requirement that the Company deliver Commitment
Increase Notices to the Agent pursuant to
Section 5.18(a)
of the Credit Agreement. Such waiver is limited solely to the Initial Exercise
and the Additional Exercise, and the Borrowers should not expect or anticipate
any similar or other waiver of such required notice for any other exercise of
their rights under
Section 5.18
of the Credit Agreement in the future.
3.
The Agent, the Floor Plan Agent, the Lenders and the Borrowers hereby
acknowledge and agree as follows:
(a) pursuant to the Initial Exercise, which occurred on the Third Amendment
Effective Date prior to the effectiveness of this Amendment, the Total
Commitment increased by the aggregate amount of $400,000,000;
(b) pursuant to the Additional Exercise, the Total Commitment will further
increase on the Third Amendment Effective Date by the aggregate amount of
$100,000,000, for a combined increase of the Total Commitment in the aggregate
amount of $500,000,000 (the "
Combined Commitment Increase
");
(c) the Lenders have fully subscribed to the Initial Exercise and the
Additional Exercise; and
(d) each Lender that is increasing its Commitment pursuant to the Initial
Exercise and/or the Additional Exercise (an "
Increasing Lender
") shall enter into a Commitment Increase Agreement with the Borrowers and the
Agent which shall apply to such Increasing Lender's portion of the Combined
Commitment Increase, whether pursuant to the Initial Exercise or the
Additional Exercise.
4.
Pursuant to the provisions of
Section 5.18(c)
of the Credit Agreement and in order to reflect the increase in the Lenders'
Commitments following the Initial Exercise and the Additional Exercise,
Schedule 1.1(a)
to the Credit Agreement is hereby amended in its entirety as set forth in
Schedule 1.1(a)
attached to this Amendment and incorporated herein and therein by reference.
5.
Attached as
Annex B
is a list of all of the Borrowers to the Credit Agreement as of the Third
Amendment Effective Date, which list includes all of the information required
pursuant to
Section 9.19
of the Credit Agreement.
6.
Each of the Borrowers hereby agrees to reimburse the Agent for all reasonable
out-of-pocket costs and expenses incurred by the Agent in the preparation,
negotiation and execution of this Amendment and any and all other agreements,
documents and/or instruments relating to this Amendment, including, without
limitation, reasonable attorneys' fees and expenses, as provided in
Section 13.4
of the Credit Agreement.
2
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7.
On and after the Third Amendment Effective Date (a) all references in the
Credit Agreement to "this Agreement" and any other references of similar
import shall henceforth mean the Credit Agreement as amended by this Amendment
and as the same may from time to time be further amended, modified, extended,
renewed or restated and (b) all references in the other Loan Documents to the
Credit Agreement and any other references of similar import shall henceforth
mean the Credit Agreement as amended by this Amendment and as the same may
from time to time be further amended, modified, extended, renewed or restated.
8.
Except to the extent specifically amended by this Amendment, all of the terms,
provisions, conditions, covenants, representations and warranties contained in
the Credit Agreement and the other Loan Documents shall be and remain in full
force and effect and the same are hereby ratified and confirmed. This
Amendment is not a novation of the Credit Agreement or of any credit facility
or guaranty provided thereunder or in respect thereof. Notwithstanding that
the cover page of the Credit Agreement is dated "effective as of March 9,
2022" and
Section 8.1
and
Section 8.2
of the Credit Agreement attached hereto contain those conditions which were
applicable to the initial Closing Date of March 9, 2022 and the initial
Borrowings, the changes to the Credit Agreement effected by this Amendment
shall be effective upon the satisfaction of the conditions to effectiveness
set forth in
Section 16
of this Amendment. The signature pages and any Schedules, Exhibits or Annexes
contained in the Credit Agreement may be left off of the Credit Agreement
attached hereto unless specifically amended hereby.
9.
This Amendment shall be binding upon and inure to the benefit of the Company,
the other Borrowers, the Lenders, the Agent and the Floor Plan Agent and their
respective successors and assigns, except that, except as permitted by the
Credit Agreement, Borrowers may not assign, transfer or delegate any of their
respective rights or obligations under the Credit Agreement as amended by this
Amendment.
10.
Each of the Borrowers hereby represents and warrants to the Agent, the Floor
Plan Agent and each Lender that:
(a) the execution and delivery of this Amendment and the performance by
each Borrower of this Amendment and the other Loan Documents are within the
corporate, partnership or limited liability company powers, as applicable, of
such Borrower, have been duly authorized by all necessary corporate,
partnership or limited liability company action, as applicable, on the part of
such Borrower and require no action by or in respect of, consent of or filing
or recording with, any governmental or regulatory body, instrumentality,
authority, agency or official or any other Person;
(b) the execution and delivery of this Amendment and the performance by
each Borrower of this Amendment and the other Loan Documents 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 Borrower, (B)
any order of any court, or any rule, regulation or order of any other agency
of government binding upon the Company or any other Borrower or (C) any
provisions of any indenture, agreement or other instrument to which the
Company or any other Borrower is a party, or by which the Company or any other
Borrower 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 other Borrower other than under the Loan
Documents;
3
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(c) this Amendment has been duly executed and delivered by each Borrower
and constitutes the legal, valid and binding obligation of each such Borrower
enforceable against each such Borrower in accordance with its terms, except as
such enforceability may be limited by (i) applicable bankruptcy, insolvency or
similar laws affecting the enforcement of creditors' rights generally and (ii)
general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law);
(d) all of the representations and warranties made by any Borrower and/or
any other Loan Party in the Credit Agreement and/or in any other Loan Document
are true and correct in all material respects on and as of the date of this
Amendment as if made on and as of the date of this Amendment (except to the
extent that such representation or warranty is made as of an earlier date, in
which case such representation or warranty is true and correct in all material
respects as of such earlier date); and
(e) as of the date of this Amendment and after giving effect to this
Amendment, no Default or Event of Default under or within the meaning of the
Credit Agreement has occurred and is continuing.
11.
Each of the GM Borrowers hereby consents to the terms, provisions and
conditions contained in this Amendment. Each of the GM Borrowers hereby
acknowledges and agrees that (a) the execution and delivery of this Amendment
by the Borrowers to the Agent, the Floor Plan Agent and the Lenders will not
adversely affect or impair any of its obligations to the Agent, the Floor Plan
Agent and/or the Lenders under the GM Borrower Guaranty executed by each of
the undersigned, in favor of the Agent, the Floor Plan Agent and the Lenders
with respect to the indebtedness of Borrowers to the Agent, the Floor Plan
Agent and the Lenders, (b) all references in the GM Borrower Guaranty to the
"Credit Agreement", shall henceforth be deemed to refer to the Credit
Agreement, as amended by this Amendment, (c) payment of all of the "Guaranteed
Obligations" (as defined in the GM Borrower Guaranty) is guaranteed to the
Agent, the Floor Plan Agent and the Lenders by such undersigned pursuant to
the terms of the GM Borrower Guaranty, and (d) the GM Borrower Guaranty is in
full force and effect on the date hereof and the same is hereby ratified and
confirmed.
12.
In the event of any inconsistency or conflict between this Amendment and the
Credit Agreement with respect to the matters set forth herein, the terms,
provisions and conditions contained in this Amendment shall govern and
control; provided, however, to the extent the terms and provisions of this
Amendment do not contradict or conflict with the terms and provisions of the
Credit Agreement, then the Credit Agreement, as amended by this Amendment,
shall remain in and have its intended full force and effect, and the Borrowers
and Lenders hereby affirm, confirm and ratify the same.
13.
This Amendment shall be governed by and construed in accordance with the
substantive laws of the State of Texas.
4
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14.
THIS AMENDMENT (INCLUDING ANNEX A HERETO), THE CREDIT AGREEMENT, 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 26.02(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 Amendment. Nothing in this Amendment, 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 Amendment.
15.
This Amendment may be executed in two or more counterparts, which may be
delivered in original, electronic or facsimile form, and each of which shall
constitute an original, but all of which when taken together shall constitute
but one contract.
16.
Notwithstanding any provision contained in this Amendment to the contrary,
this Amendment shall not be effective unless and until the Agent shall have
received:
(a) this Amendment, duly executed by each Borrower, the Agent, the Floor
Plan Agent and Lenders constituting the Required Lenders;
(b) a Commitment Increase Agreement for each Increasing Lender, duly
executed by each Borrower, the Agent and such Increasing Lender;
(c) an opinion of counsel to the Borrowers, addressed to the Agent and the
Lenders and in form and substance reasonably satisfactory to the Agent;
(d) from each Borrower (i) a certificate of the Secretary or an Assistant
Secretary of said Borrower, certifying that (A) attached are true and complete
copies of its constituent documents or that such documents have been provided,
(B) attached thereto is a true and complete copy of resolutions or unanimous
consent duly adopted by its Board of Directors, members or partners
authorizing (1) the increase of the Total Commitment pursuant to
Section 5.18
of the Credit Agreement up to the aggregate amount of the Combined Commitment
Increase and (2) the execution, delivery and performance of this Amendment
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, or
that such documents have been provided, and (C) as to the incumbency and
specimen signature of each officer of each Borrower executing this Amendment,
any of the Loan Documents or other documents delivered in connection herewith
or therewith; (ii) a status or good standing certificate demonstrating its due
organization, valid existence, qualification to do business and good standing;
and (iii) such other documents as the Agent may reasonably request; and
(e) payment by Borrowers of all costs, expenses and fees of the Agent and
the Floor Plan Agent which are presently due and payable under this Amendment,
the Credit Agreement and the other Loan Documents.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK -
SIGNATURE PAGES FOLLOW]
5
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IN WITNESS WHEREOF, the Company, the other Borrowers, the Lenders, the Agent
and the Floor Plan Agent have executed this Amendment as of the day and year
first written above.
BORROWERS: GROUP 1 AUTOMOTIVE, INC.,
a Delaware corporation
By:
Name: Daniel J. McHenry
Title: Senior Vice President
Advantagecars.com, Inc.
, a Delaware corporation
Amarillo Motors-F, Inc.
, a Delaware corporation
Bob Howard Automotive-East, Inc.
, an Oklahoma corporation
Bob Howard Chevrolet, Inc.
, an Oklahoma corporation
Bob Howard Dodge, Inc.
, an Oklahoma corporation
Bob Howard Motors, Inc.
, an Oklahoma corporation
Bob Howard Nissan, Inc.
, an Oklahoma corporation
Caliber Motors Inc.
, a California corporation
Chaperral Dodge, Inc.
, a Delaware corporation
Danvers-S, Inc.
, a Delaware corporation
Danvers-SB, Inc.
, a Delaware corporation
Danvers-T, Inc.
, a Delaware corporation
Danvers-TII, Inc.
, a Delaware corporation
Danvers-TIV, Inc.,
a Massachusetts corporation
Danvers-TL, Inc.
, a Delaware corporation
Danvers-TV, Inc.,
a Massachusetts corporation
GPI AL-N, Inc.
, a Delaware corporation
GPI CA-H, Inc.
, a California corporation
GPI CA-HSC, Inc.
, a California corporation
GPI CA-SV, Inc.
, a Delaware corporation
GPI CA-TII, Inc.
, a Delaware corporation
GPI CC, Inc.
, a Delaware corporation
GPI GA Holdings, Inc.
, a Delaware corporation
GPI KS-SB, Inc.
, a Delaware corporation
GPI KS-SK, Inc.
, a Delaware corporation
GPI MA-AII, Inc.
, a Massachusetts corporation
GPI MA-DM, Inc.
, a Massachusetts corporation
GPI MA-DMII, Inc.
, a Massachusetts corporation
GPI MA-F, Inc.
, a Massachusetts corporation
GPI MA-FM, Inc.
, a Massachusetts corporation
[Continued on following page]
Signature page to Third Amendment to Twelfth Amended and Restated Revolving Credit Agreement
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GPI MA-FV, Inc.
, a Massachusetts corporation
GPI MA-GM, Inc.
, a Massachusetts corporation
GPI MA-H, Inc.
, a Massachusetts corporation
GPI MA-HA, Inc.
, a Massachusetts corporation
GPI MA-HII, Inc.
, a Massachusetts corporation
GPI MA-LR, Inc.
, a Massachusetts corporation
GPI MA-P, Inc.
, a Massachusetts corporation
GPI MA-SB, Inc.
, a Massachusetts corporation
GPI MA-SBII, Inc.
, a Massachusetts corporation
GPI MA-SV, Inc.
, a Massachusetts corporation
GPI MA-TVI, Inc.
, a Massachusetts corporation
GPI MD Holdings, Inc.
, a Maryland corporation
GPI ME-DC, Inc.
, a Maine corporation
GPI ME-DM, Inc.
, a Maine corporation
GPI ME-F, Inc.
, a Maine corporation
GPI ME-H, Inc.
, a Maine corporation
GPI ME-SV, Inc.
, a Maine corporation
GPI ME-T, Inc.
, a Maine corporation
GPI MS-H, Inc.
, a Delaware corporation
GPI MS-N, Inc.
, a Delaware corporation
GPI MS-SK, Inc.,
a Delaware corporation
GPI NH-DM, Inc.
, a New Hampshire corporation
GPI NH-SU, Inc.
, a New Hampshire corporation
GPI NH-T, Inc.
, a Delaware corporation
GPI NH-TL, Inc.
, a Delaware corporation
GPI NJ-DC, Inc.
, a New Jersey corporation
GPI NJ-SU, Inc.
, a New Jersey corporation
GPI NM-J, Inc.,
a New Mexico corporation
GPI NM-LRII, Inc.,
a New Mexico corporation
GPI NM-SB, Inc.,
a New Mexico corporation
GPI NM-SBII, Inc.,
a New Mexico corporation
GPI NM-T, Inc.
, a New Mexico corporation
GPI NM-TL, Inc.
, a New Mexico corporation
GPI NY Holdings, Inc.
, a Nevada corporation
GPI OK-HII, Inc.
, a Nevada corporation
GPI OK-SH, Inc.
, a Delaware corporation
GPI SAC-T, Inc.
, a Delaware corporation
GPI SC, Inc.
, a Delaware corporation
GPI SC Holdings, Inc.
, a Delaware corporation
GPI TX-A, Inc.
, a Nevada corporation
GPI TX-AII, Inc.
, a Texas corporation
GPI TX-AIII, Inc.
, a Texas corporation
GPI TX-ARGMIII, Inc.
, a Nevada corporation
[Continued on following page]
Signature page to Third Amendment to Twelfth Amended and Restated Revolving Credit Agreement
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GPI TX-DCIV, Inc.
, a Texas corporation
GPI TX-DMII, Inc.
, a Nevada corporation
GPI TX-DMIII, Inc.
, a Nevada corporation
GPI TX-DMIV, Inc.
, a Nevada corporation
GPI TX-EPGM, Inc.
, a Delaware corporation
GPI TX-F, Inc.
, a Delaware corporation
GPI TX-FMII, Inc.
, a Texas corporation
GPI TX-G, Inc.
, a Texas corporation
GPI TX-GII, Inc.
, a Texas corporation
GPI TX-GIII, Inc.
, a Texas corporation
GPI TX-HAII, Inc.
, a Nevada corporation
GPI TX-HGM, Inc.
, a Delaware corporation
GPI TX-HGMII, Inc.
, a Nevada corporation
GPI TX-HGMIV, Inc.
, a Nevada corporation
GPI TX-HIII, Inc.
, a Texas corporation
GPI TX-NVI, Inc.
, a Nevada corporation
GPI TX-P, Inc.,
a Texas corporation
GPI TX-SBII, Inc.
, a Delaware corporation
GPI TX-SBIII, Inc.
, a Nevada corporation
GPI TX-SBIV, Inc.
, a Texas corporation
GPI TX-SHII, Inc.
, a Delaware corporation
GPI TX-SK, Inc.
, a Delaware corporation
GPI TX-SKII, Inc.
, a Nevada corporation
GPI TX-SKIII, Inc.
, a Texas corporation
GPI TX-SMGEN, Inc.
, a Texas corporation
GPI TX-SU, Inc.,
a Texas corporation
GPI TX-SVII, Inc.
, a Delaware corporation
GPI TX-SVIII, Inc.
, a Delaware corporation
GPI TX-TIV, Inc.
, a Texas corporation
Group 1 Associates, Inc.
, a Delaware corporation
Group 1 FL Holdings, Inc.
, a Delaware corporation
Group 1 Funding, Inc.
, a Delaware corporation
Group 1 LP Interests-DC, Inc.
, a Delaware corporation
Group 1 Realty, Inc.
, a Delaware corporation
Howard-GM II, Inc.
, a Delaware corporation
Howard-GM, Inc.
, a Delaware corporation
Howard-H, Inc.
, a Delaware corporation
Howard-HA, Inc.
, a Delaware corporation
Howard-SB, Inc.
, a Delaware corporation
HRI Procurement, Inc.,
a Texas corporation
Kutz-N, Inc.
, a Delaware corporation
Lubbock Motors-F, Inc.
, a Delaware corporation
Lubbock Motors-GM, Inc.
, a Delaware corporation
[Continued on following page]
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Lubbock Motors-S, Inc.
, a Delaware corporation
Lubbock Motors-SH, Inc.
, a Delaware corporation
Lubbock Motors-T, Inc.
, a Delaware corporation
Maxwell Ford, Inc.
, a Delaware corporation
Maxwell-GMII, Inc.
, a Delaware corporation
Maxwell-N, Inc.
, a Delaware corporation
Maxwell-NII, Inc.
, a Delaware corporation
McCall-F, Inc.
, a Delaware corporation
McCall-H, Inc.
, a Delaware corporation
McCall-HA, Inc.
, a Delaware corporation
McCall-N, Inc.
, a Delaware corporation
McCall-SB Inc.
, a Delaware corporation
McCall-T, Inc.
, a Delaware corporation
McCall-TII, Inc.
, a Delaware corporation
McCall-TL, Inc.
, a Delaware corporation
Mike Smith Automotive-H, Inc.
, a Delaware corporation
Mike Smith Automotive-N, Inc.
, a Texas corporation
Mike Smith Autoplaza, Inc.
, a Texas corporation
Mike Smith Autoplex Dodge, Inc.
, a Texas corporation
Mike Smith Autoplex, Inc.
, a Texas corporation
Mike Smith Autoplex-German Imports, Inc.
, a Texas corporation
Mike Smith Imports, Inc.
, a Texas corporation
Miller-DM, Inc.
, a Delaware corporation
NJ-H, Inc.
, a Delaware corporation
NJ-HAII, Inc.
, a Delaware corporation
NJ-SV, Inc.
, a Delaware corporation
Rockwall Automotive-F, Inc.
, a Delaware corporation
By:
Name: Gillian A. Hobson
Title: Vice President of each of the above-named corporations
[Continued on following page]
Signature page to Third Amendment to Twelfth Amended and Restated Revolving Credit Agreement
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3670 Oceanside Realty, LLC,
a Delaware limited liability company
510 Sunrise Realty, LLC,
a Delaware limited liability company
AMR Real Estate Holdings, LLC
, a Delaware limited liability company
By: Group 1 Realty NE, LLC
, a Massachusetts limited liability company, its Sole Member
By: Group 1 Realty, Inc.
, a Delaware corporation, its Sole Member
Baron Leasehold, LLC
, a Kansas limited liability company
By: Baron Development Company, LLC
, a Kansas limited liability company, its Sole Member
Baron Development Company, LLC
, a Kansas limited liability company
G1R CA, LLC
, a California limited liability company
G1R Clear Lake, LLC
, a Texas limited liability company
G1R Florida, LLC
, a Delaware limited liability company
G1R Mass, LLC
, a Delaware limited liability company
GPI SC-SBII, LLC,
a Delaware limited liability company
Group 1 Realty NE, LLC
, a Massachusetts limited liability company
Ivory Auto Properties of South Carolina, LLC
, a South Carolina limited liability company
Tate CG, L.L.C.
, a Maryland limited liability company
By: Group 1 Realty, Inc.
, a Delaware corporation, its Sole Member
GPI MD-H Greenbelt, LLC
, a Maryland limited liability company
GPI MD-HII, LLC
, a Maryland limited liability company
GPI MD-HY, LLC
, a Maryland limited liability company
GPI MD-K, LLC
, a Maryland limited liability company
GPI MD-SB, LLC
, a Delaware limited liability company
GPI MD-T, LLC
, a Maryland limited liability company
By: GPI MD Holdings, Inc.
, a Maryland corporation, its sole member
Harvey Ford, LLC
, a Delaware limited liability company
By: Bohn-FII, LLC
, a Delaware limited liability company, its Sole Member
By:
Name: Gillian A. Hobson
Title: Vice President of each of the above-named entities
[Continued on following page]
Signature page to Third Amendment to Twelfth Amended and Restated Revolving Credit Agreement
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Bohn-FII, LLC
, a Delaware limited liability company
GPI CA-LXI, LLC
, a California limited liability company
GPI LA-DM, LLC
, a Louisiana limited liability company
GPI LA-FII, LLC
, a Delaware limited liability company
GPI LA-H, LLC
, a Louisiana limited liability company
GPI LA-J, LLC
, a Louisiana limited liability company
GPI LA-V, LLC
, a Louisiana limited liability company
Harvey GM, LLC
, a Delaware limited liability company
Harvey Operations-T, LLC
, a Delaware limited liability company
By: Bohn Holdings, LLC
, a Delaware limited liability company, its Sole Member
GPI CA-DMIII, LLC
, a California limited liability company
By: Group 1 Holdings-DC, L.L.C.
, a Delaware limited liability company, its Sole Member
Bohn Holdings, LLC
, a Delaware limited liability company
Danvers-SU, LLC
, a Delaware limited liability company
By: Group 1 Holdings-S, L.L.C.
, a Delaware limited liability company, its Sole Member
By: GROUP 1 AUTOMOTIVE, INC.
,
a Delaware corporation, the sole member of Bohn Holdings, LLC and Group 1
Holdings-DC, L.L.C. and Group 1 Holdings-S, L.L.C.
By:
Name: Gillian A. Hobson
Title: Senior Vice President
[Continued on following page]
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GPI AL-SB, LLC
, a Delaware limited liability company
By: GPI AL-N, Inc.
, a Delaware corporation, its Sole Member
GPI FL-A, LLC,
a Nevada limited liability company
GPI FL-H, LLC
, a Delaware limited liability company
GPI FL-VW, LLC
, a Delaware limited liability company
By: Group 1 FL Holdings, Inc.
, a Delaware corporation, its Sole Member
GPI GA Liquidation, LLC
, a Delaware limited liability company
GPI GA-CC, LLC
, a Georgia limited liability company
GPI GA-CGM, LLC
, a Nevada limited liability company
GPI GA-DM, LLC
, a Delaware limited liability company
GPI GA-FII, LLC
, a Delaware limited liability company
GPI GA-FIII, LLC
, a Delaware limited liability company
GPI GA-SU, LLC
, a Nevada limited liability company
GPI GA-T, LLC
, a Delaware limited liability company
GPI GA-TII, LLC
, a Nevada limited liability company
By: GPI GA Holdings, Inc.,
a Delaware corporation, its
Sole Member
GPI NJ-HA, LLC,
a Nevada limited liability company
GPI NJ-HII, LLC
, a Nevada limited liability company
By: NJ-H, Inc.
, a Delaware corporation, its Sole Member
GPI NJ-SB, LLC
, a Nevada limited liability company
By: NJ-SV, Inc.
, a Delaware corporation, its Sole Member
GPI NM-SC, LLC,
a New Mexico limited liability company
By: GPI NM-SB, Inc.
, a New Mexico corporation, its Sole Member
GPI NM-SCII, LLC,
a New Mexico limited liability company
By: GPI NM-SBII, Inc.
, a New Mexico corporation, its Sole Member
LHM ATO, LLC,
a Utah limited liability company
By: GPI NM-T, Inc.
, a New Mexico corporation, its Sole Member
[Continued on following page]
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GPI SC-DM, LLC
, a South Carolina limited liability company
GPI SC-H, LLC
, a South Carolina limited liability company
GPI SC-SB, LLC
, a Delaware limited liability company
GPI SC-T, LLC
, a Delaware limited liability company
By: GPI SC Holdings, Inc.
, a Delaware corporation, its Sole Member
GPI NY-GM, LLC
, a New York limited liability company
GPI NY-GMII, LLC
, a New York limited liability company
GPI NY-SU, LLC
, a New York limited liability company
By: GPI NY Holdings, Inc.
, a Nevada corporation, its Sole Member
Ira Automotive Group, LLC
, a Delaware limited liability company
By: Danvers-T, Inc.
, a Delaware corporation, its Sole Member
By:
Name: Gillian A. Hobson
Title: Vice President of each of the above-named entities
GPI, Ltd.
, a Texas limited partnership
Rockwall Automotive-DCD, Ltd.
, a Texas limited partnership
By: Group 1 Associates, Inc.
, a Delaware corporation, its General Partner
By:
Name: Gillian A. Hobson
Title: Vice President of Group 1 Associates, Inc.
[Continued on following page]
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GPI FL-G, LLC
, a Florida limited liability company
Group 1 Holdings-DC, L.L.C.
, a Delaware limited liability company
Group 1 Holdings-F, L.L.C.
, a Delaware limited liability company
Group 1 Holdings-GM, L.L.C.
, a Delaware limited liability company
Group 1 Holdings-H, L.L.C.
, a Delaware limited liability company
Group 1 Holdings-N, L.L.C.
, a Delaware limited liability company
Group 1 Holdings-S, L.L.C.
, a Delaware limited liability company
Group 1 Holdings-T, L.L.C.
, a Delaware limited liability company
Howard-DCIII, LLC
, a Delaware limited liability company
Key Ford, LLC
, a Delaware limited liability company
By: GROUP 1 AUTOMOTIVE, INC.
,
a Delaware corporation, the sole member of the above listed companies
By:
Name: Gillian A. Hobson
Title: Senior Vice President
Signature page to Third Amendment to Twelfth Amended and Restated Revolving
Credit Agreement
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AGENT, ISSUING BANK AND U.S. BANK NATIONAL ASSOCIATION
LENDER:
By:
Name:
Title:
Signature page to Third Amendment to Twelfth Amended and Restated Revolving
Credit Agreement
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LENDER: JPMORGAN CHASE BANK, N.A.
By:
Name:
Title:
Signature page to Third Amendment to Twelfth Amended and Restated Revolving
Credit Agreement
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LENDER: BANK OF AMERICA, N.A.
By:
Name:
Title:
Signature page to Third Amendment to Twelfth Amended and Restated Revolving
Credit Agreement
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LENDER: WELLS FARGO BANK,
NATIONAL ASSOCIATION
By:
Name:
Title:
Signature page to Third Amendment to Twelfth Amended and Restated Revolving
Credit Agreement
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LENDER: PNC BANK, NATIONAL ASSOCIATION
By:
Name:
Title:
Signature page to Third Amendment to Twelfth Amended and Restated Revolving
Credit Agreement
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LENDER: MERCEDES-BENZ FINANCIAL
SERVICES USA LLC
By:
Name:
Title:
Signature page to Third Amendment to Twelfth Amended and Restated Revolving
Credit Agreement
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LENDER: TOYOTA MOTOR CREDIT CORPORATION
By:
Name:
Title:
Signature page to Third Amendment to Twelfth Amended and Restated Revolving
Credit Agreement
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LENDER: BMW FINANCIAL SERVICES NA, LLC
By:
Name:
Title:
By:
Name:
Title:
Signature page to Third Amendment to Twelfth Amended and Restated Revolving
Credit Agreement
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LENDER: AMERICAN HONDA
FINANCE CORPORATION
By:
Name:
Title:
Signature page to Third Amendment to Twelfth Amended and Restated Revolving
Credit Agreement
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LENDER: TD BANK, N.A.
By:
Name:
Title:
Signature page to Third Amendment to Twelfth Amended and Restated Revolving
Credit Agreement
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LENDER: VW CREDIT, INC.
By:
Name:
Title:
Signature page to Third Amendment to Twelfth Amended and Restated Revolving
Credit Agreement
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FLOOR PLAN AGENT, SWING COMERICA BANK
LINE BANK AND LENDER:
By:
Name:
Title:
Signature page to Third Amendment to Twelfth Amended and Restated Revolving
Credit Agreement
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LENDER: TRUIST BANK
By:
Name:
Title:
Signature page to Third Amendment to Twelfth Amended and Restated Revolving
Credit Agreement
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LENDER: SANTANDER BANK, N.A.
By:
Name:
Title:
Signature page to Third Amendment to Twelfth Amended and Restated Revolving
Credit Agreement
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LENDER: ALLY BANK
By:
Name:
Title:
Signature page to Third Amendment to Twelfth Amended and Restated Revolving
Credit Agreement
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LENDER: FLAGSTAR SPECIALTY FINANCE
COMPANY, LLC
By:
Name:
Title:
Signature page to Third Amendment to Twelfth Amended and Restated Revolving
Credit Agreement
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LENDER: BARCLAYS BANK PLC
By:
Name:
Title:
Signature page to Third Amendment to Twelfth Amended and Restated Revolving
Credit Agreement
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LENDER: ZIONS BANCORPORATION, N.A.
DBA AMEGY BANK
By:
Name:
Title:
Signature page to Third Amendment to Twelfth Amended and Restated Revolving
Credit Agreement
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LENDER: HYUNDAI CAPITAL AMERICA
By:
Name:
Title:
Signature page to Third Amendment to Twelfth Amended and Restated Revolving
Credit Agreement
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LENDER: BOKF, NA d/b/a BANK OF OKLAHOMA
By:
Name:
Title:
Signature page to Third Amendment to Twelfth Amended and Restated Revolving
Credit Agreement
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SCHEDULE 1.1(a)
Lenders and Commitments
Lender Floor Plan Loan Commitment Acquisition Alternative Total Commitment
Loan Commitment Currency Sublimit
U.S. Bank National $117,000,000.00 $78,000,000.00 $19,180,327.87 $195,000,000.00
Association
JPMorgan Chase Bank, N.A. $117,000,000.00 $78,000,000.00 $19,180,327.87 $195,000,000.00
Bank of America, N.A. $117,000,000.00 $78,000,000.00 $19,180,327.87 $195,000,000.00
Wells Fargo Bank, $117,000,000.00 $78,000,000.00 $19,180,327.87 $195,000,000.00
National Association
PNC Bank, National $117,000,000.00 $78,000,000.00 $19,180,327.87 $195,000,000.00
Association
Toyota Motor $117,000,000.00 $78,000,000.00 $195,000,000.00
Credit Corporation
BMW Financial $117,000,000.00 $78,000,000.00 $195,000,000.00
Services NA, LLC
American Honda $117,000,000.00 $78,000,000.00 $195,000,000.00
Finance Corporation
Mercedes-Benz Financial $114,000,000.00 $76,000,000.00 $190,000,000.00
Services USA LLC
TD Bank, N.A. $84,000,000.00 $56,000,000.00 $13,770,491.80 $140,000,000.00
VW Credit, Inc. $78,000,000.00 $52,000,000.00 $130,000,000.00
Comerica Bank $66,000,000.00 $44,000,000.00 $10,819,672.13 $110,000,000.00
Truist Bank $51,000,000.00 $34,000,000.00 $8,360,655.74 $85,000,000.00
Santander Bank, N.A. $36,000,000.00 $24,000,000.00 $5,901,639.34 $60,000,000.00
Ally Bank $36,000,000.00 $24,000,000.00 $5,901,639.34 $60,000,000.00
NYCB Specialty Finance $24,000,000.00 $16,000,000.00 $40,000,000.00
Company, LLC (n/k/a
Flagstar Specialty
Finance Company, LLC)
Barclays Bank PLC $24,000,000.00 $16,000,000.00 $3,934,426.23 $40,000,000.00
Zions Bancorporation, $21,000,000.00 $14,000,000.00 $3,442,622.95 $35,000,000.00
N.A. dba Amegy Bank
Hyundai Capital $18,000,000.00 $12,000,000.00 $30,000,000.00
America, Inc.
BOKF, NA d/b/a $12,000,000.00 $8,000,000.00 $1,967,213.11 $20,000,000.00
Bank of Oklahoma
TOTAL $1,500,000,000.00 $1,000,000,000.00 $150,000,000.00 $2,500,000,000.00
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ANNEX A
Twelfth Amended and Restated Revolving Credit Agreement
[see attached]
-------------------------------------------------------------------------------
ANNEX B
List of All of the Borrowers
[intentionally omitted]
-------------------------------------------------------------------------------
ANNEX A
Conformed through
Second
Third
Amendment to Twelfth Amended and Restated Revolving Credit Agreement
TWELFTH AMENDED AND RESTATED
REVOLVING CREDIT AGREEMENT
Effective as of March 9, 2022
among
GROUP 1 AUTOMOTIVE, INC.,
the Subsidiary Borrowers Listed Herein,
THE LENDERS LISTED HEREIN,
U.S. BANK NATIONAL ASSOCIATION,
as Administrative Agent,
COMERICA BANK,
as Floor Plan Agent,
JPMORGAN CHASE BANK, N.A.,
BANK OF AMERICA, N.A.
WELLS FARGO BANK, N.A.
and
PNC BANK, NATIONAL ASSOCIATION
as Syndication Agents
and
TRUIST BANK,
as Documentation Agent
* * * * *
U.S. BANK NATIONAL ASSOCIATION,
JPMORGAN CHASE BANK, N.A.,
BANK OF AMERICA, N.A.
WELLS FARGO SECURITIES, LLC,
and
PNC CAPITAL MARKETS LLC
as Co-Lead Arrangers and Joint Bookrunners
Thompson Coburn LLP
Counsel for Administrative Agent
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TABLE OF CONTENTS
ARTICLE I CERTAIN DEFINED TERMS, ACCOUNTING TERMS AND CONSTRUCTION..............
............................................ 3
Section 1.1
Certain Defined Terms.......................... 3
Section 1.2
Accounting Terms............................... 45
Section 1.3
Interpretation...................................... 45
Section 1.4
Divisions............................................. 46
Section 1.5
SOFR Notification; Alternative Currency Conforming Changes.......... 46
ARTICLE II THE FLOOR PLAN LOANS....................................... 47
Section 2.1
Floor Plan Loan Commitments.......... 47
Section 2.2
Floor Plan Loans................................. 47
Section 2.3
Floor Plan Borrowing Procedure........ 48
Section 2.4
Notice of Floor Plan Loans................. 50
Section 2.5
Payments; Application of Payments
50
51
Section 2.6
Title Documents................................. 51
Section 2.7
Power of Attorney...........................
51
52
Section 2.8
Issuance of Drafting Agreements....... 52
Section 2.9
Conditions to Issuance........................ 52
Section 2.10
Drafts Under Manufacturers Drafting Letters.....................................
............ 53
Section 2.11
Obligations Absolute.......................... 54
ARTICLE III ACQUISITION LOANS.............................................. 55
Section 3.1
Acquisition Loan Commitments........ 55
Section 3.2
Acquisition Loans............................... 56
Section 3.3
Acquisition Loan Borrowing Procedure
56
57
S
ection 3.4
Reserve Commitment; Reduction of Acquisition Loan Advance Limit....... 57
Section 3.5
Monthly Calculation of Outstanding Loans in Alternative Currencies......... 57
ARTICLE IV SWING LINE LOANS................................................ 58
Section 4.1
Swing Line Commitments.................. 58
Section 4.2
Accrual of Interest; Margin Adjustments.........................................
................... 58
Section 4.3
Requests for Swing Line Loans......
58
59
Section 4.4
Disbursement of Swing Line Loans... 59
Section 4.5
Refunding of or Participation Interest in Swing Line Loans......................
......... 59
Section 4.6
Swing Line Overdraft Loans.............. 60
ARTICLE V ALL LOANS.............................................................
.... 61
Section 5.1
Notes; Advancement and Repayment of Loans.......................................
........... 61
Section 5.2
Interest on Loans; Offset Provisions; Interest Generally........................
....... 61
Section 5.3
Interest on Overdue Amounts............. 63
Section 5.4
Fees..................................................... 63
Section 5.5
Termination, Reduction or Conversion of Commitments.............................
.... 64
Section 5.6
Availability of Types of Borrowings; Benchmark Replacement....................
66
Section 5.7
Prepayment of Loans; Mandatory Reduction of Indebtedness................. 68
Section 5.8
Reserve Requirements; Change in Circumstances...................................
.. 69
Section 5.9
Change in Legality............................. 71
Section 5.10
Breakage Costs and Related Matters.. 71
Section 5.11
Pro Rata Treatment............................. 72
Section 5.12
Place of Payments............................... 73
Section 5.13
Sharing of Setoffs............................... 74
Section 5.14
Taxes................................................... 74
Section 5.15
Applicable Interest Rate..................... 78
Section 5.16
Extension of Maturity Date................ 80
Section 5.17
Mitigation Obligations; Replacement Lenders.....................................
.......... 80
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Section 5.18
Increase of Commitments................... 82
Section 5.19
Cash Collateral................................... 83
Section 5.20
Defaulting Lenders............................. 84
ARTICLE VI LETTERS OF CREDIT............................................... 87
Section 6.1
General............................................... 87
Section 6.2
Issuance, Amendment and Renewal of Letters of Credit............................
...... 88
Section 6.3
Risk Participations, Drawings and Reimbursements................................
. 89
Section 6.4
Repayment of Participation................ 91
Section 6.5
Role of the Issuing Bank.................... 91
Section 6.6
Obligations Absolute.......................... 92
Section 6.7
Letter of Credit Fees........................... 92
Section 6.8
Cash Collateralization........................ 93
ARTICLE VII REPRESENTATIONS AND WARRANTIES........... 94
Section 7.1
Organization; Corporate Powers........ 94
Section 7.2
Authorization...................................... 94
Section 7.3
Governmental Approval..................... 95
Section 7.4
Enforceability..................................... 95
Section 7.5
Financial Statements........................... 95
Section 7.6
No Material Adverse Change............. 95
Section 7.7
Title to Properties; Security Documents.........................................
................... 95
Section 7.8
Litigation; Compliance with Laws; Etc...........................................
................. 96
Section 7.9
Agreements; No Default..................... 96
Section 7.10
Federal Reserve Regulations.............. 96
Section 7.11
Taxes................................................... 97
Section 7.12
Pension and Welfare Plans................. 97
Section 7.13
No Material Misstatements................ 97
Section 7.14
Investment Company Act................... 97
Section 7.15
Maintenance of Insurance.................. 98
Section 7.16
Existing Liens..................................... 98
Section 7.17
Environmental Matters....................... 98
Section 7.18
Subsidiaries......................................... 99
Section 7.19
Engaged in Motor Vehicle Sales......... 99
Section 7.20
Dealer Franchise Agreements and Manufacturer Framework Agreements...............
............................................. 99
Section 7.21
Use of Proceeds................................ 100
Section 7.22
Sanctions; Anti-Corruption Laws..... 100
Section 7.23
Affected Financial Institutions......... 100
ARTICLE VIII CONDITIONS OF LENDING............................... 101
Section 8.1
Conditions Precedent to Closing Date............................................
.............. 101
Section 8.2
Conditions Precedent to Initial Borrowings......................................
. 102
Section 8.3
Conditions Precedent to Each Borrowing.........................................
103
Section 8.4
Conditions Precedent to Conversions and Continuations...........................
.. 104
ARTICLE IX AFFIRMATIVE COVENANTS................................ 104
Section 9.1
Existence........................................... 105
Section 9.2
Maintenance of Properties, Licenses and Permits; Compliance with Laws 105
Section 9.3
Insurance........................................... 105
Section 9.4
Obligations and Taxes...................... 106
Section 9.5
Financial Statements; Reports.......... 106
Section 9.6
Litigation and Other Notices............ 107
Section 9.7
ERISA............................................... 108
Section 9.8
Books, Records and Access.............. 108
Section 9.9
Use of Proceeds................................ 109
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Section 9.10
Nature of Business............................ 109
Section 9.11
Compliance....................................... 109
Section 9.12
Audits................................................ 110
Section 9.13
Demonstrators and Rental Motor Vehicles.........................................
.... 110
Section 9.14
Reserved........................................... 110
Section 9.15
Further Assurances........................... 110
Section 9.16
Permitted Acquisitions; New Subsidiary Requirements.............................
....... 111
Section 9.17
Ford Borrower and GM Borrower Dividends.........................................
. 113
Section 9.18
Segregated Bank Accounts............... 113
Section 9.19
Designation of Dual Subsidiaries..... 113
Section 9.20
Conversion of Dual Subsidiary......... 115
Section 9.21
Dissolution and Termination of Borrowers........................................
. 115
ARTICLE X NEGATIVE COVENANTS........................................ 116
Section 10.1
Indebtedness..................................... 116
Section 10.2
Liens................................................. 120
Section 10.3
Consolidations and Mergers............. 121
Section 10.4
Disposition of Assets..................
122
121
Section 10.5
Investments....................................... 122
Section 10.6
Transactions with Affiliates.............. 123
Section 10.7
Other Agreements............................. 123
Section 10.8
Fiscal Year; Accounting..............
124
123
Section 10.9
Credit Standards.........................
124
123
Section 10.10
Pension Plans.................................... 124
Section 10.11
Restricted Payments......................... 124
Section 10.12
Fixed Charge Coverage Ratio....
127
126
Section 10.13
Total Adjusted Leverage Ratio......... 127
ARTICLE XI EVENTS OF DEFAULT AND REMEDIES............. 127
Section 11.1
Acquisition Events of Default.......... 127
Section 11.2
Acquisition Remedies....................... 129
Section 11.3
Floor Plan Events of Default......
130
129
Section 11.4
Floor Plan Remedies......................... 132
Section 11.5
Overdrawing of Floor Plan Loans.... 133
Section 11.6
Application of Collateral............
134
133
ARTICLE XII THE AGENT, FLOOR PLAN AGENT AND THE COLLATERAL......................
........................................
136
135
Section 12.1
Reserved.....................................
136
135
Section 12.2
Authorization and Action of the Agent; Rights and Duties Regarding Collateral,
Priority of Distributions.................... 136
Section 12.3
Agent's Reliance............................... 137
Section 12.4
Agent and Affiliates; U.S. Bank and Affiliates..................................
...
138
137
Section 12.5
Lenders' Indemnity of Agent............ 138
Section 12.6
Lender Credit Decision.................... 139
Section 12.7
Resignation of Agent; Successor Agent...........................................
............... 139
Section 12.8
Notice of Default........................
140
139
Section 12.9
Authorization and Action of the Floor Plan Agent................................
........ 140
Section 12.10
Floor Plan Agent's Reliance............. 141
Section 12.11
Floor Plan Agent and Affiliates; Comerica and Affiliates.................... 141
Section 12.12
Floor Plan Agent's Indemnity........... 142
Section 12.13
Lender Credit Decision..............
143
142
Section 12.14
Resignation of Floor Plan Agent; Successor Floor Plan Agent.............. 143
Section 12.15
Notice of Default........................
144
143
Section 12.16
Certain ERISA Matters..................... 144
- iii -
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Section 12.17
Erroneous Payments......................... 145
ARTICLE XIII MISCELLANEOUS............................................... 146
Section 13.1
Notices, Etc....................................... 146
Section 13.2
Survival of Agreement...................... 147
Section 13.3
Successors and Assigns; Participations
148
147
Section 13.4
Expenses of the Agents and Lenders; Indemnity...................................
....... 151
Section 13.5
Right of Setoff.................................. 153
Section 13.6
Governing Law; Jurisdiction......
154
153
Section 13.7
Waivers; Amendments...................... 154
Section 13.8
Interest........................................
156
155
Section 13.9
Severability; Conflicts................
157
156
Section 13.10
Counterparts..................................... 157
Section 13.11
Binding Effect.................................. 157
Section 13.12
Further Assurances........................... 157
Section 13.13
Subsidiary Solvency Savings Clause 157
Section 13.14
Joint and Several Liability and Related Matters; Keepwell......................
158
157
Section 13.15
USA Patriot Act................................ 160
Section 13.16
Loans Under Prior Credit Agreement..............................................
............ 160
Section 13.17
Exiting Lenders...........................
161
160
Section 13.18
Final Agreement of the Parties......... 161
Section 13.19
Confidentiality............................
162
161
Section 13.20
Waiver of Jury Trial.......................... 162
Section 13.21
Acknowledgement and Consent to Bail-In of Affected Financial Institutions
163
162
Section 13.22
Judgment Currency........................... 163
Section 13.23
Acknowledgement Regarding Any Supported QFCs.........................
164
163
Section 13.24
Electronic Execution of Assignment and Acceptance...............................
..
165
164
Section 13.25
Document Imaging; Telecopy and PDF Signatures; Electronic Signatures
165
164
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THIS TWELFTH AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
dated effective as of March 9, 2022, 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 wholly-owned Restricted
Subsidiaries of the Company are sometimes referred to herein as, individually,
a "
Borrower
," and collectively, the "
Borrowers
"), the lenders listed on the signature pages hereof or that become party
hereto pursuant to
Section 5.18
or
Section 13.3
(the "
Lenders
"),
U.S. BANK NATIONAL ASSOCIATION
, as Administrative Agent for the Lenders (in such capacity together with any
successor in such capacity pursuant to
Section 12.7
, the "
Agent
"),
COMERICA BANK
, as Floor Plan Agent for the Lenders (in such capacity together with any
successor in such capacity pursuant to
Section 12.14
, the "
Floor Plan Agent
"),
JPMORGAN CHASE BANK, N.A.,
BANK OF AMERICA, N.A.
,
WELLS FARGO BANK, N.A.
and
PNC BANK, NATIONAL ASSOCIATION
, as Syndication Agents and
TRUIST BANK
, as Documentation Agent.
R E C I T A L S
WHEREAS
, on December 31, 1997, the Borrowers, the lenders party thereto, JPMorgan
Chase Bank, N.A., in its capacity as the prior administrative agent for the
Lenders (the "
Prior Agent
") and the Floor Plan Agent entered into the Revolving Credit Agreement (the "
Initial Agreement
"), whereby, upon the terms and conditions therein stated, such lenders 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 lenders party thereto, the Prior 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, such lenders 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 lenders party thereto, the Prior
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, such lenders 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
, on May 12, 1999, the Borrowers, the lenders party thereto, the Prior Agent
and the Floor Plan Agent amended the Second Amended and Restated Agreement and
entered into the Third Amended and Restated Revolving Credit Agreement
(hereinafter called the "
Third Amended and Restated Agreement
") whereby, upon the terms and conditions therein stated, such lenders agreed
to make loans to the Borrowers up to the aggregate amount of $500,000,000 to
be used by the Borrowers for the purposes set forth in Section 9.9 of the
Third Amended and Restated Agreement; and
-------------------------------------------------------------------------------
WHEREAS
, on October 15, 1999 and effective as of November 1, 1999, the Borrowers, the
lenders party thereto, the Prior Agent and the Floor Plan Agent amended the
Third Amended and Restated Agreement and entered into the Fourth Amended and
Restated Revolving Credit Agreement (as subsequently amended, hereinafter
called the "
Fourth Amended and Restated Agreement
") whereby, upon the terms and conditions therein stated, such lenders agreed
to make loans to the Borrowers up to the aggregate amount of $1,000,000,000 to
be used by the Borrowers for the purposes set forth in Section 9.9 of the
Fourth Amended and Restated Agreement; and
WHEREAS
, on June 2, 2003, the Borrowers, the lenders party thereto, the Prior Agent
and the Floor Plan Agent amended the Fourth Amended and Restated Agreement and
entered into the Fifth Amended and Restated Revolving Credit Agreement (as
subsequently amended, hereinafter called the "
Fifth Amended and Restated Agreement
") whereby, upon the terms and conditions therein stated, such lenders agreed
to make loans to the Borrowers up to the aggregate amount of $775,000,000 to
be used by the Borrowers for the purposes set forth in Section 9.9 of the
Fifth Amended and Restated Agreement; and
WHEREAS
, on December 16, 2005, the Borrowers, the lenders party thereto, the Prior
Agent and the Floor Plan Agent amended the Fifth Amended and Restated
Agreement and entered into the Sixth Amended and Restated Revolving Credit
Agreement (as subsequently amended, hereinafter called the "
Sixth Amended and Restated Agreement
") whereby, upon the terms and conditions therein stated, such lenders agreed
to make loans to the Borrowers up to the aggregate amount of $950,000,000 to
be used by the Borrowers for the purposes set forth in Section 9.9 of the
Sixth Amended and Restated Agreement; and
WHEREAS
, on March 19, 2007, the Borrowers, the lenders party thereto, the Prior Agent
and the Floor Plan Agent amended the Sixth Amended and Restated Agreement and
entered into the Seventh Amended and Restated Revolving Credit Agreement (as
subsequently amended, hereinafter called the "
Seventh Amended and Restated Agreement
") whereby, upon the terms and conditions therein stated, such lenders agreed
to make loans to the Borrowers up to the aggregate amount of $1,350,000,000 to
be used by the Borrowers for the purposes set forth in Section 9.9 of the
Seventh Amended and Restated Agreement; and
WHEREAS
, on July 1, 2011, the Borrowers, the lenders party thereto, the Prior Agent
and the Floor Plan Agent amended the Seventh Amended and Restated Agreement
and entered into the Eighth Amended and Restated Revolving Credit Agreement
(as subsequently amended, hereinafter called the "
Eighth Amended and Restated Agreement
") whereby, upon the terms and conditions therein stated, such lenders agreed
to make loans to the Borrowers up to the aggregate amount of $1,350,000,000 to
be used by the Borrowers for the purposes set forth in Section 9.9 of the
Eighth Amended and Restated Agreement; and
WHEREAS
, on June 20, 2013, the Borrowers, the lenders party thereto, the Prior Agent
and the Floor Plan Agent amended the Eighth Amended and Restated Agreement and
entered into the Ninth Amended and Restated Revolving Credit Agreement (as
subsequently amended, hereinafter called the "
Ninth Amended and Restated Agreement
") whereby, upon the terms and conditions therein stated, such lenders agreed
to make loans to the Borrowers up to the aggregate amount of $1,700,000,000 to
be used by the Borrowers for the purposes set forth in Section 9.9 of the
Ninth Amended and Restated Agreement; and
- 2 -
-------------------------------------------------------------------------------
WHEREAS
, on June 17, 2016, the Borrowers, the lenders party thereto, the Prior Agent
and the Floor Plan Agent amended the Ninth Amended and Restated Agreement and
entered into the Tenth Amended and Restated Revolving Credit Agreement (as
subsequently amended, hereinafter called the "
Tenth Amended and Restated Agreement
") whereby, upon the terms and conditions therein stated, such lenders agreed
to make loans to the Borrowers up to the aggregate amount of $1,800,000,000 to
be used by the Borrowers for the purposes set forth in Section 9.9 of the
Tenth Amended and Restated Agreement; and
WHEREAS
, on June 27, 2019, the Borrowers, the lenders party thereto, the Agent and
the Floor Plan Agent amended the Tenth Amended and Restated Agreement and
entered into the Eleventh Amended and Restated Revolving Credit Agreement (as
subsequently amended, hereinafter called the "
Eleventh Amended and Restated Agreement
" and together with the Initial Agreement and the First, Second, Third,
Fourth, Fifth, Sixth, Seventh, Eighth, Ninth and Tenth Amended and Restated
Agreements, the "
Prior Agreements
") whereby, upon the terms and conditions therein stated, such lenders agreed
to make loans to the Borrowers up to the aggregate amount of $1,800,000,000 to
be used by the Borrowers for the purposes set forth in Section 9.9 of the
Eleventh Amended and Restated Agreement; and
WHEREAS
, the Borrowers, the Lenders, the Agent and the Floor Plan Agent mutually
desire to amend certain aspects of the Eleventh Amended and Restated Agreement;
NOW, THEREFORE
, in consideration of the mutual covenants and agreements herein contained,
the parties hereto agree as follows:
ARTICLE I
CERTAIN DEFINED TERMS, ACCOUNTING TERMS AND CONSTRUCTION
Section 1.1
Certain Defined Terms
. As used in this Agreement, the following terms shall have the following
meanings:
"
2020-4.000% Indenture
" means the Indenture dated as of August 17, 2020 among the Company, the
guarantors party thereto and Wells Fargo Bank, National Association, as
trustee, as in effect on the Closing Date. To the extent any defined term used
herein is defined by reference to the 2020-4.000% Indenture, such defined term
shall be as defined under the 2020-4.000% Indenture as in effect on the
Closing Date.
"
2020-4.000% Notes
" means, collectively, the 4.000% Senior Notes due 2028 issued pursuant to the
2020-4.000%
Indenture and any additional notes issued pursuant thereto.
"
ABR Borrowing
" means a Borrowing consisting of one or more Alternate Base Rate Loans.
"
Account
" means any "account" as such term is defined in the UCC, now or hereafter
owned by the Company or any of its Subsidiaries.
"
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 (but excluding director qualifying shares) of an
Auto Dealer, or (ii) all or substantially all of the assets of an Auto Dealer.
"
Acquisition Event of Default
" means the occurrence of one of the events specified in
Section 11.1
.
"
Acquisition Loan
" has the meaning specified in
Section 3.1
.
- 3 -
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"
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 for which an Availability Analysis has been
delivered, an amount equal to the lesser of (i) the Total Acquisition Loan
Commitment and (ii) the Acquisition Loan Borrowing Base, less, in each case,
any applicable Reserve Commitment measured in Dollars.
"
Acquisition Loan Borrowing Base
" means for the Company and its Subsidiaries, on a consolidated basis, the
positive difference between:
(a) the sum of the following items, without duplication, on which the Agent
holds a valid and perfected Lien (except with respect to clause (ix) below):
(i) 100% of the wholesale purchase price of New Motor Vehicles and
Demonstrators less 100% of the wholesale purchase price of New Motor Vehicles
and Demonstrators where the Agent's Lien is subordinated;
(ii) 85% of the Book Value of Used Motor Vehicles and Rental Motor Vehicles
where the Agent's Lien is a first priority Lien (subject only to carriers',
warehousemen's and landlords' Liens described in
Section 7.16(b)
);
(iii) 100% of the amount of contracts in transit in which the Agent's Lien
is a first priority Lien, including, without limitation, all accounts, chattel
paper and agreements of third parties to pay the purchase price of vehicles
sold to customers, which agreements are not yet funded;
(iv) 80% of Eligible Accounts;
(v) 65% of the Book Value of parts Inventory where the Agent's Lien is a
first priority Lien (subject only to carriers', warehousemen's and landlords'
Liens described in
Section 7.16(b)
);
(vi) 50% of the cash deposits in all deposit accounts (other than the
Offset Account); provided, such cash deposits will be included only for
deposit accounts in which the Agent's Lien is a first priority Lien (subject
only to Liens described in
Section 7.16(i)
);
(vii) 50% of the market value of the Cash Equivalents held in securities
accounts in which the Agent's Lien is a first priority Lien (subject only to
Liens described in
Section 7.16(i)
);
(viii) 40% of the net book value of all Equipment in which the Agent's Lien
is a first priority Lien (subject only to Liens described in
Section 7.16(a)
and
(b)
); and
(ix) 75% of the appraised or tax assessed value of Eligible Borrowing Base
Real Property;
provided
that the aggregate amount added to the Acquisition Loan Borrowing Base
pursuant to this clause (ix) shall not exceed 40% of the aggregate Acquisition
Loan Commitments at any time;
and
- 4 -
-------------------------------------------------------------------------------
(b) (i) 100% of all Floor Plan Loans and Swing Line Loans
plus
(ii) the excess, if any, of the amount of Floor Plan Loans attributable to New
Motor Vehicles and Demonstrators where the Agent's Lien is subordinated over
100% of the wholesale purchase price of New Motor Vehicles and Demonstrators
where the Agent's Lien is subordinated,
minus
(iii) 100% of the Offset Amount as of the last day of the fiscal quarter for
which the Acquisition Loan Borrowing Base is to be determined.
"
Acquisition Loan Commitment
" means for each Acquisition Loan Lender, its obligation to make Acquisition
Loans to the Company in the designated currency and to acquire participations
in Letters of Credit up to the amount set forth opposite such Lender's name on
Schedule 1.1(a)
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 of
Section 2.3(c)(iii)
,
Section 3.4
,
Section 5.5
,
Section 5.18
or
Section 11.2
or as such amount may be increased or decreased from time to time by an
Assignment and Acceptance pursuant to
Section 5.17
or
Section 13.3(b)
).
"
Acquisition Loan Lender
" means any Lender specified in
Schedule 1.1(a)
as having an Acquisition Loan Commitment.
"
Acquisition Notes
" means each of the Notes substantially in the form of
Exhibit 1.1E
, duly issued by the Company to each Lender in the aggregate principal face
amount of such Lender's Acquisition Loan Commitment.
"
Addendum
" means the form of Addendum and Joinder Agreement substantially in the form of
Exhibit 1.1A
.
"
Adjusted Net Indebtedness
" means, as of any date of determination, for the Company and its Restricted
Subsidiaries, on a consolidated basis, the difference between (a) Indebtedness
(excluding (v) letters of credit other than letters of credit that support
Indebtedness of Unrestricted Subsidiaries and (w) obligations in respect of
Bank Products)
minus
the aggregate amount as of the date of determination of cash and/or Cash
Equivalents held in (i) domestic accounts on the consolidated balance sheet of
the applicable Person and its Restricted Subsidiaries as of such date to the
extent the use thereof for application to payment of Indebtedness is not
prohibited by law or any contract to which any such Person is a party and (ii)
accounts established as an offset to Floor Plan Loans on the consolidated
balance sheet of the applicable Person and its Restricted Subsidiaries as of
such date; provided that the aggregate amount of cash and Cash Equivalents
under clauses (i) and (ii) for purposes of this calculation shall in no event
exceed $75,000,000,
plus
an amount equal to six times Rental Expense during the preceding four quarter
period (excluding Rental Expense with respect to real property purchased
during such four quarter period but including Rental Expense for any real
property disposed of and leased back to the Company or its Subsidiaries during
such four quarter period as if such sale-leaseback transaction had occurred,
and such associated rental payments began, on the first day of such applicable
four quarter period) and (b) the sum of (i) Floor Plan Loans outstanding, (ii)
Permitted New Vehicle Floor Plan Indebtedness, (iii) Permitted Dual Subsidiary
Indebtedness, (iv) Indebtedness permitted pursuant to
Section 10.1(r)
, (v) Retail Loan Guarantees not in excess of ten percent (10%) of
Stockholders' Equity and (vi) Guarantees of Indebtedness of Unrestricted
Subsidiaries (floor plan or other) in an amount not to exceed $75,000,000 in
the aggregate.
"
Administrative Questionnaire
" means an Administrative Questionnaire in the form of
Exhibit 1.1B
hereto, which each Lender shall complete and provide to the Agent on or prior
to the Closing Date or which is delivered by any new Lenders after the Closing
Date pursuant to
Section 13.3(b)
.
- 5 -
-------------------------------------------------------------------------------
"
Affected Financial Institution
" means (a) any EEA Financial Institution or (b) any UK Financial Institution.
"
Affiliate
" of any Person means any other Person who directly or indirectly beneficially
owns or controls five percent (5%) or more of the total voting power of shares
of capital stock of such Person having the right to vote for directors under
ordinary circumstances, any Person controlling, controlled by or under common
control with any such Person (within the meaning of Rule 405 under the
Securities Act of 1933), and any director or executive officer of such Person.
"
Affiliated Finance Company
" means a finance company affiliated with a Manufacturer.
"
Agency Fee(s)
" has the meaning specified in
Section 5.4(b)
.
"
Agent
" has the meaning specified in the introduction to this Agreement.
"
Agent's Letter
" has the meaning specified in
Section 5.4(b)
.
"
Agreement
" means this Twelfth Amended and Restated Revolving Credit Agreement.
"
Alternate Base Rate
" means, for any day, a fluctuating rate per annum equal to the greater of (a)
the Prime Rate in effect on such day, (b) the FRBNY Rate in effect on such day
plus one half (1/2) of one percent (1%), (c) the Term SOFR Rate (without
giving effect to the Applicable Margin) for a one-month Interest Period on
such day (or if such day is not a Business Day or if the Term SOFR Rate for
such Business Day is not published due to a holiday or other circumstance that
the Agent deems in its sole discretion to be temporary, the immediately
preceding Business Day) for Dollars plus one and one-half percent (1.5%) and
(d) zero. Any change in the Alternate Base Rate due to a change in the Prime
Rate, the FRBNY Rate or the Term SOFR Rate shall be effective on the effective
date of such change in the Prime Rate, the FRBNY Rate or the Term SOFR Rate,
respectively. If the Alternate Base Rate is being used when Term SOFR
Borrowings are unavailable pursuant to Section 5.6, then the Alternate Base
Rate shall be the highest of clauses (a), (b) and (d) above, without reference
to clause (c).
"
Alternate Base Rate Loan
" means any Floor Plan Loan or Swing Line Loan for which the applicable
interest rate is the Alternate Base Rate plus the Applicable Margin as set
forth in this Agreement and any Acquisition Loan requested in Dollars 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.
"
Alternative Currency
" means Euros or Pounds Sterling, at the option of the Company.
"
Alternative Currency Agent
" means U.S. Bank.
- 6 -
-------------------------------------------------------------------------------
"
Alternative Currency Conforming Changes
" means, with respect to the use, administration of or any conventions
associated with the Pounds Sterling Rate, the Eurocurrency Rate or any
proposed Benchmark Replacement for an Alternative Currency, any conforming
changes to the definitions of "SONIA", "Interest Period", "Pounds Sterling
Rate" and "Eurocurrency Rate" timing and frequency of determining rates and
making payments of interest and other technical, administrative or operational
matters (including, for the avoidance of doubt, the definition of "Business
Day", timing of borrowing requests or prepayment, conversion or continuation
notices and length of lookback periods) as may be appropriate, in the
reasonable discretion of the Agent with the consent of the Borrowers, to
reflect the adoption and implementation of such applicable rate(s) and to
permit the administration thereof by the Agent in a manner substantially
consistent with then-prevailing market practice for such Alternative Currency
(or, if the Agent determines that adoption of any portion of such market
practice is not administratively feasible or that no market practice for the
administration of such rate for such Alternative Currency exists, in such
other manner of administration as the Agent determines, with the consent of
the Borrowers, is reasonably necessary in connection with the administration
of this Agreement and any other Loan Document).
"
Alternative Currency Sublimit
" has the meaning set forth in
Section 3.1(b)
.
"
Anti-Corruption Laws
" means the Foreign Corrupt Practices Act of 1977, as amended, and the rules
and regulations thereunder, and any other anti-corruption law applicable to
the Company and its Subsidiaries.
"
Applicable Lending Office
" means, with respect to a Lender, such Lender's Domestic Lending Office in
the case of an Alternate Base Rate Loan or SOFR Loan and such Lender's
Facility Office in the case of a Eurocurrency or Pounds Sterling Loan.
"
Applicable Margin
" means, on any date, with respect to SOFR Loans, Eurocurrency Loans, Pounds
Sterling Loans or Alternate Base Rate Loans, the applicable percentages set
forth below based upon the Total Adjusted Leverage Ratio for the most recently
ended four quarter period with respect to which the Company is required to
have delivered an annual audit report or financial statements pursuant to
Section 9.5(a)
or
(b)
, as applicable (as such Total Adjusted Leverage Ratio is reflected in the
compliance certificate delivered under
Section 9.5(c)
in connection with such annual audit report or financial statements):
SOFR
Eurocurrency
Total Adjusted Pounds Sterling Alternate Base Commitment Fee
Leverage Ratio
Margin
Rate Margin
Rate
Category 1 x
4.50 2.00% 0.50% 0.40%
Category 2 4.00 d x < 4.50 1.75% 0.25% 0.30%
Category 3 3.50 d x < 4.00 1.50% 0.00% 0.25%
Category 4 2.50 d x < 3.50 1.25% 0.00% 0.20%
Category 5 x < 2.50 1.00% 0.00% 0.15%
- 7 -
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Each change in the Applicable Margin shall take effect on each date on which
such annual report or financial statements and compliance certificate are
required to be delivered pursuant to
Section 9.5(a)
or
(b)
, as applicable, and
(c)
, commencing with the date on which the financial statements and required
compliance certificate are required to be delivered for the four-quarter
period ending March 31, 2022. Notwithstanding the foregoing, for the period
from the Closing Date through the date the financial statements and related
compliance certificate are required to be delivered pursuant to
Section 9.5(b)
and
(c)
for the four quarter period ending March 31, 2022, the Total Adjusted Leverage
Ratio shall be deemed to be in Category 5 under the above table. If the
Company fails to deliver the annual audit report, financial statements or the
related compliance certificate required to be delivered by it pursuant to
Section 9.5(a)
,
(b)
or
(c)
, as applicable, then effective as of the date such annual audit report,
financial statements or associated compliance certificate were required to be
delivered pursuant to
Section 9.5(a)
,
(b)
or
(c)
, as applicable, the Total Adjusted Leverage Ratio shall be deemed to be in
Category 1 and shall be deemed to remain at such Category until such annual
audit report, financial statements and related compliance certificate are so
delivered by the Company. In the event that any annual audit report, financial
statement or compliance certificate delivered pursuant to
Section 9.5(a)
,
(b)
or
(c)
, as applicable, is shown to be inaccurate when delivered (regardless of
whether this Agreement or the Commitments are in effect when such inaccuracy
is discovered, but in no event more than two years after the date of such
delivery) and such inaccuracy, if corrected, would have led to the application
of a higher Applicable Margin for any period (an "
Applicable Period
") than the Applicable Margin applied for such Applicable Period, and only in
such case, then the Company shall immediately (i) deliver to the Agent
corrected financial statements for such Applicable Period, (ii) determine the
Applicable Margin for such Applicable Period based upon the corrected
financial statements and (iii) immediately pay to the Agent the accrued
additional interest and Acquisition Loan Commitment Fees (after giving effect
to any credits resulting from a lower Applicable Margin in other affected
periods) owing as a result of such increased Applicable Margin for such
Applicable Period. This provision is in addition to the rights of the Agent
and Lenders with respect to
Section 5.3
and their other respective rights under this Agreement and shall not limit the
rights of the Agent to declare an Event of Default.
"
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, in the case of New Motor Vehicles, a franchise or licensing
agreement with a Manufacturer and related operations.
"
Available Tenor
" means, as of any date of determination and with respect to the then-current
Benchmark, as applicable, (x) if the then-current Benchmark is a term rate,
any tenor for such Benchmark that is or may be used for determining the length
of an Interest Period or (y) otherwise, any payment period for interest
calculated with reference to such Benchmark, as applicable, pursuant to this
Agreement as of such date.
"
Availability Analysis
" means the calculations required by
Exhibit 9.5(h)
, which calculations shall include a calculation of the Acquisition Loan
Borrowing Base.
"
Bail-In Action
" means the exercise of any Write-Down and Conversion Powers by the applicable
Resolution Authority in respect of any liability of an Affected Financial
Institution.
- 8 -
-------------------------------------------------------------------------------
"
Bail-In Legislation
" means (a) with respect to any EEA Member Country implementing Article 55 of
Directive 2014/59/EU of the European Parliament and of the Council of the
European Union, the implementing law, regulation rule or requirement for such
EEA Member Country from time to time which is described in the EU Bail-In
Legislation Schedule and (b) with respect to the United Kingdom, Part I of the
United Kingdom Banking Act 2009 (as amended from time to time) and any other
law, regulation or rule applicable in the United Kingdom relating to the
resolution of unsound or failing banks, investment firms or other financial
institutions or their affiliates (other than through liquidation,
administration or other insolvency proceedings).
"
Bank Products
" means each and any of the following bank services provided to the Company or
any Restricted Subsidiary by a Lender or any of its Affiliates: (a) commercial
credit cards, (b) commercial checking accounts, (c) stored value cards and (d)
treasury management services (including, without limitation, controlled
disbursements, automated clearinghouse transactions, return items, overdrafts,
immediate credit extended on dealer drafts sent or refused for collection,
letters guaranteeing payment of checks issued for payment of tax, title,
licensing, auto auctions, etc. and interstate depository network services).
"
Benchmark
" means, initially, (a) for Loans denominated in Dollars, Daily Simple SOFR
and Term SOFR, as applicable, (b) for Loans denominated in Euros, EURIBOR, and
(c) for Loans denominated in Pounds Sterling, SONIA;
provided
that if a Benchmark Transition Event and its related Benchmark Replacement
Date have occurred with respect to Daily Simple SOFR, Term SOFR, EURIBOR,
SONIA or the then-current Benchmark, then "Benchmark" means the applicable
Benchmark Replacement, to the extent that such Benchmark Replacement has
become effective pursuant to Section 5.6(b).
"
Benchmark Replacement
" means, for any Available Tenor, with respect to any Benchmark Transition
Event, the sum of: (a) the alternate benchmark rate that has been selected by
the Agent and the Company as the replacement for the then-current Benchmark
for the applicable Corresponding Tenor giving due consideration to (i) any
selection or recommendation of a replacement benchmark rate or the mechanism
for determining such a rate by the Relevant Governmental Body or (ii) any
evolving or then-prevailing market convention for determining a benchmark rate
as a replacement for the then-current Benchmark for U.S. dollar-denominated
syndicated credit facilities or the applicable Alternative Currency and (b)
the related Benchmark Replacement Adjustment;
provided
that, if such Benchmark Replacement as so determined would be less than zero,
such Benchmark Replacement will be deemed to be zero for the purposes of this
Agreement and the other Loan Documents.
"
Benchmark Replacement Adjustment
"
means, with respect to any replacement of the then-current Benchmark with an
Unadjusted Benchmark Replacement for any applicable Available Tenor, the
spread adjustment, or method for calculating or determining such spread
adjustment (which may be a positive or negative value or zero), that has been
selected by the Agent and the Company for the applicable Corresponding Tenor
giving due consideration to (a) any selection or recommendation of a spread
adjustment, or method for calculating or determining such spread adjustment,
for the replacement of such Benchmark with the applicable Unadjusted Benchmark
Replacement by the Relevant Governmental Body on the applicable Benchmark
Replacement Date or (b) any evolving or then-prevailing market convention for
determining a spread adjustment, or method for calculating or determining such
spread adjustment, for the replacement of such Benchmark with the applicable
Unadjusted Benchmark Replacement for U.S. dollar-denominated syndicated credit
facilities or in the applicable Alternative Currency.
- 9 -
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"
Benchmark Replacement Conforming Changes
"
means, with respect to any Benchmark Replacement, any technical, administrative
or operational changes (including changes to the definitions of "Borrowing,"
"Alternate Base Rate," "Business Day," "Interest Period" or any similar or
analogous definition, timing and frequency of determining rates and making
payments of interest, timing of borrowing requests or prepayment, conversion
or continuation notices, length of lookback periods, the applicability of any
breakage provisions, and other technical, administrative or operational
matters) that the Agent decides may be appropriate to reflect the adoption and
implementation of such Benchmark Replacement and to permit the administration
thereof by the Agent in a manner substantially consistent with market practice
(or, if the Agent decides that adoption of any portion of such market practice
is not administratively feasible or if the Agent determines that no market
practice for the administration of such Benchmark Replacement exists, in such
other manner of administration as the Agent decides is reasonably necessary in
connection with the administration of this Agreement and the other Loan
Documents).
"
Benchmark Replacement Date
"
means, with respect to any then-current Benchmark, the earliest to occur of
the following events with respect to such Benchmark:
(1) in the case of clause (1) or (2) of the definition of "Benchmark
Transition Event," the later of (a) the date of the public statement or
publication of information referenced therein and (b) the date on which the
administrator of such Benchmark (or the published component used in the
calculation thereof) permanently or indefinitely ceases to provide all
Available Tenors of such Benchmark (or such component thereof); or
(2) in the case of clause (3) of the definition of "Benchmark Transition
Event," the date of the public statement or publication of information
referenced therein.
For the avoidance of doubt, (i) if the event giving rise to the Benchmark
Replacement Date occurs on the same day as, but earlier than, the Reference
Time in respect of any determination, the Benchmark Replacement Date will be
deemed to have occurred prior to the Reference Time for such determination and
(ii) the "Benchmark Replacement Date" will be deemed to have occurred in the
case of clause (1) or (2) with respect to any Benchmark upon the occurrence of
the applicable event or events set forth therein with respect to all
then-current Available Tenors of such Benchmark (or the published component
used in the calculation thereof).
"
Benchmark Transition Event
" means, with respect to any then-current Benchmark, the occurrence of one or
more of the following events with respect to such Benchmark:
(1) a public statement or publication of information by or on behalf of the
administrator of such Benchmark (or the published component used in the
calculation thereof) announcing that such administrator has ceased or will
cease to provide all Available Tenors of such Benchmark (or such component
thereof), permanently or indefinitely,
provided
that, at the time of such statement or publication, there is no successor
administrator that will continue to provide any Available Tenor of such
Benchmark (or such component thereof);
- 10 -
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(2) a public statement or publication of information by the regulatory
supervisor for the administrator of such Benchmark (or the published component
used in the calculation thereof), the Board of Governors of the Federal
Reserve System, the FRBNY, an insolvency official with jurisdiction over the
administrator for such Benchmark (or such component), a resolution authority
with jurisdiction over the administrator for such Benchmark (or such
component) or a court or an entity with similar insolvency or resolution
authority over the administrator for such Benchmark (or such component), in
each case, which states that the administrator of such Benchmark (or such
component) has ceased or will cease to provide all Available Tenors of such
Benchmark (or such component thereof) permanently or indefinitely,
provided
that, at the time of such statement or publication, there is no successor
administrator that will continue to provide any Available Tenor of such
Benchmark (or such component thereof); or
(3) a public statement or publication of information by the regulatory
supervisor for the administrator of such Benchmark (or the published component
used in the calculation thereof) announcing that all Available Tenors of such
Benchmark (or such component thereof) are no longer representative.
For the avoidance of doubt, a "Benchmark Transition Event" will be deemed to
have occurred with respect to any Benchmark if a public statement or
publication of information set forth above has occurred with respect to each
then-current Available Tenor of such Benchmark (or the published component
used in the calculation thereof).
"
Benchmark Unavailability Period
"
means, with respect to any then-current Benchmark, the period (if any) (x)
beginning at the time that a Benchmark Replacement Date has occurred if, at
such time, no Benchmark Replacement has replaced such Benchmark for all
purposes hereunder and under any Loan Document in accordance with Section
5.6(b) and (y) ending at the time that a Benchmark Replacement has replaced
the then-current Benchmark for all purposes hereunder and under any Loan
Document in accordance with Section 5.6(b).
"
Beneficial Ownership Certification
" means a certification regarding beneficial ownership as required by the
Beneficial Ownership Regulation substantially in the form of the Certification
Regarding Beneficial Owners of Legal Entity Customers included as Appendix A
to the Beneficial Ownership Regulation.
"
Beneficial Ownership Regulation
" means 31 C.F.R. (s) 1010.230.
"
Benefit Plan
" means any of (a) an "employee benefit plan" (as defined in ERISA) that is
subject to Title I of ERISA, (b) a "plan" as defined in and subject to Section
4975 of the Code or (c) any Person whose assets include (for purposes of ERISA
Section 3(42) or otherwise for purposes of Title I of ERISA or Section 4975 of
the Code) the assets of any such "employee benefit plan" or "plan."
"
Board
" means the Board of Governors of the Federal Reserve System of the United
States.
"
Book Value
" means the net book value of an asset determined in accordance with GAAP.
"
Borrower
" or "
Borrowers
" has the meaning specified in the introduction to this Agreement, provided,
however, that a Restricted Subsidiary shall cease to be a Borrower from and
after the time (if ever) the Loan Documents permit the release of such
Restricted Subsidiary in accordance with
Section 9.21
of this Agreement.
- 11 -
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"
Borrower Termination Agreement
" means the form of Borrower Termination Agreement substantially in the form of
Exhibit 1.1G
.
"
Borrowing
" means a Loan or a group of Loans of a single Type made by the Lenders on a
single date and, with respect to Term SOFR Borrowings and/or Eurocurrency
Borrowings, 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.
"
Builder Basket Amount
" means the sum of:
(a) 50% of cumulative Consolidated Net Income (as defined in the
2020-4.000% Indenture) (or in the case Consolidated Net Income (as defined in
the 2020-4.000% Indenture) shall be negative, less 100% of such deficit) of
the Company since July 1, 2020 through the last day of the last full fiscal
quarter ending immediately preceding the date of the subject Restricted
Payment for which quarterly or annual financial statements are publicly
available (taken as a single accounting period);
plus
(b) (i) 100% of the aggregate net cash proceeds, and the Fair Market Value
of property other than cash, in each case received by the Company or a
Restricted Subsidiary (as defined in the 2020-4.000% Indenture) after August
17, 2020 from contributions of capital or the issuance and sale (other than to
a Subsidiary of the Company) of Capital Stock (other than Redeemable Stock) of
the Company or any options, warrants or other rights to acquire Capital Stock
(other than Redeemable Stock) of the Company, or any net payment received by
the Company in connection with the termination or settlement of options
relating to its Capital Stock, (ii) 100% of the aggregate net cash proceeds
received by the Company after August 17, 2020 from the issuance and sale of
convertible or exchangeable Debt (as defined in the 2020-4.000% Indenture) of
the Company that has been converted into or exchanged for Capital Stock (other
than Redeemable Stock and other than by or from a Subsidiary of the Company)
of the Company,
provided
that any such net proceeds received by the Company from an employee stock
ownership plan financed by loans from the Company or a Subsidiary of the
Company shall be included only to the extent such loans have been repaid with
cash on or prior to the date of determination, and (iii) without duplication,
any reduction of Debt (as defined in the 2020-4.000% Indenture) on the balance
sheet of the Company to the extent such Debt is converted into or exchanged
for Capital Stock of the Company (other than Redeemable Stock) after August
17, 2020;
plus
(c) in the case of a disposition, liquidation or repayment (including by
way of dividends) of Specified Investments by the Company and its Restricted
Subsidiaries (as defined in the 2020-4.000% Indenture), subsequent to August
17, 2020, an amount (to the extent not included in Consolidated Net Income (as
defined in the 2020-4.000% Indenture)) equal to the lesser of the return on
capital with respect to such Specified Investment and the initial amount of
such Specified Investment, in either case, less the cost of the disposition of
such Specified Investment and net of taxes;
plus
(d) in the case of a designation of an Unrestricted Subsidiary as a
Restricted Subsidiary (in each case as such terms are defined in the
2020-4.000% Indenture) pursuant to the 2020-4.000% Indenture, the Fair Market
Value of the Company's interest in such Subsidiary;
plus
(e) $146,700,000.
- 12 -
-------------------------------------------------------------------------------
"
Business Day
" means a day (other than a Saturday or Sunday) on which banks generally are
open in New York and London for the conduct of substantially all of their
commercial lending activities, interbank wire transfers can be made on the
Fedwire system and dealings in Dollars and the other Alternative Currencies
are carried on in the London interbank market (and, if the Loans which are the
subject of such Borrowing, payment or rate selection are denominated in Euros,
a day which is a TARGET Day);
provided
that, when used in connection with any SOFR Rate, the term "Business Day"
excludes any day on which the Securities Industry and Financial Markets
Association (SIFMA) recommends that the fixed income departments of its
members be closed for the entire day for purposes of trading in United States
government securities.
"
Capital Lease
" means, subject to
Section 1.2
, any lease required to be accounted for as a financial lease under GAAP, and
shall exclude any "right of use" lease under FASB ASC 842 (Leases).
"
Capital Stock
" of any Person means any and all shares, interests, participations, right in
or other equivalents (however designated) of corporate stock or other equity
participations, including partnership interests, whether general or limited,
of such Person, but in each case excluding any debt security that is
convertible or exchangeable for Capital Stock.
"
Cash Collateralize
" means, to pledge and deposit with or deliver to the Agent, for the benefit
of one or more of the Issuing Banks, the Swing Line Bank or the Lenders (as
applicable), as collateral for Letter of Credit Exposure or Swing Line
Exposure or obligations of Lenders to fund participations in respect of
Letters of Credit or Swing Line Loans, cash or deposit account balances or, if
the Agent and each applicable Issuing Bank or the Swing Line Bank, as
applicable, shall agree in their sole discretion, other credit support, in
each case pursuant to documentation in form and substance reasonably
satisfactory to (a) the Agent and (b) each applicable Issuing Bank or the
Swing Line Bank, as applicable. "
Cash Collateral
" shall have a meaning correlative to the foregoing and shall include the
proceeds of such cash collateral and other credit support.
"
Cash Collateral Account
" has the meaning specified in Section 6.8(a).
"
Cash Equivalents
" means Investments of the type permitted under
Section 10.5(d)
,
(e)
and
(f)
.
"
Change of Control
" will be deemed to have occurred if any of the following shall occur: (a) the
direct or indirect sale, transfer, conveyance or other disposition, in one or
a series of related transactions, of the voting stock in the Company, the
result of which is that a Person becomes the beneficial owner, directly or
indirectly, of more than 40% of the voting stock of the Company, measured by
voting power rather than number of shares, (b) the shares of the Company cease
to be publicly traded, (c) at any time after the Closing Date, individuals who
were either directors of the Company on the Closing Date or directors approved
(by recommendation, nomination, election or otherwise) by a majority of the
directors cease to constitute a majority of the members of the board of
directors of the Company, or (d) a "change of control" or "change of
ownership" (or any term substantially equivalent to any of the foregoing
phrases in this clause (d)) (in each case, as such term or phrase is defined
in any indenture or other agreement evidencing or relating to any
Indebtedness) occurs.
- 13 -
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"
Change in Law
" means the occurrence, after the Closing Date, of any of the following: (a)
the adoption or taking effect of any Law, rule, regulation or treaty, (b) any
change in any Law, rule, regulation or treaty or in the administration,
interpretation, implementation or application thereof by any Governmental
Authority, or (c) the making or issuance of any request, rule, guideline or
directive (whether or not having the force of Law) by any Governmental
Authority;
provided
, that notwithstanding anything herein to the contrary, (i) the Dodd-Frank
Wall Street Reform and Consumer Protection Act and all requests, rules,
guidelines or directives thereunder or issued in connection therewith and (ii)
all requests, rules, guidelines or directives promulgated by the Bank for
International Settlements, the Basel Committee on Banking Supervision (or any
successor or similar authority) or the United States or foreign regulatory
authorities, in each case pursuant to Basel III, shall in each case be deemed
to be a "Change in Law", regardless of the date enacted, adopted or issued.
"
Closing Date
" means the date hereof.
"
Code
" means the Internal Revenue Code of 1986, as amended from time to time.
"
Collateral
" means the collateral described in each of the Security Documents.
"
Commitment
" means at any time (a) for each Lender, the sum of (i) such Lender's
Acquisition Loan Commitment and (ii) such Lender's Floor Plan Loan Commitment,
each as in effect at such time, as shown on
Schedule 1.1(a)
and as the same may be increased or decreased pursuant to the provisions of
Section 2.3(c)(iii)
,
Section 3.4
,
Section 5.5
or
Section 5.18
, 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.
"
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)
.
"
Commitment Increase Agreement
" has the meaning specified in
Section 5.18(c)
.
"
Commitment Increase Notice
" has the meaning specified in
Section 5.18(a)
.
"
Commodity Exchange Act
" means the Commodity Exchange Act (7 U.S.C. (s) 1 et. seq.), as amended from
time to time, and any successor statute.
"
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 February 2022 furnished
by U.S. Bank as Co-Lead Arranger relating to the credit facilities evidenced
by this Agreement.
"
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 to Net Income under GAAP in the determination of
Consolidated Net Income, (a) provisions for income taxes, (b) Interest
Expense, (c) depreciation and amortization expense, (d) non-recurring
expenses, (e) losses resulting from force majeure events that are not
reimbursed by insurance and (f) other non-cash income or charges;
provided
that the aggregate amount of add-backs permitted pursuant to clauses (d) and
(e) above shall not exceed ten percent (10%) of Consolidated EBITDA for the
applicable four-quarter period (calculated after giving effect to any such
add-backs).
- 14 -
-------------------------------------------------------------------------------
"
Consolidated Net Income
" means the Net Income (or net losses) of the Company and its Restricted
Subsidiaries on a consolidated basis.
"
Consolidated Pro Forma EBITDA
" means the Pro Forma EBITDA of the Company and its Restricted Subsidiaries,
determined on a consolidated basis.
"
Controlled Foreign Subsidiary
" means any Subsidiary of the Company that is a "controlled foreign
corporation" within the meaning of Section 957 of the Code.
"
Corresponding Tenor
"
with respect to any Available Tenor means, as applicable, either a tenor
(including overnight) or an interest payment period having approximately the
same length (disregarding business day adjustment) as such Available Tenor.
"
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, and (d) with
respect to a Rental Motor Vehicle the first to occur of (i) two (2) years from
the date it is Deemed Floored or (ii) the introduction by the Manufacturer of
the third model year for such Motor Vehicle.
"
Daily Simple SOFR
"
means, for any day (a "
Daily SOFR Interest Day
"), an interest rate per annum equal to Daily SOFR for the day that is five
Business Days prior to (a) if such Daily SOFR Interest Day is a Business Day,
such Daily SOFR Interest Day or (b) if such Daily SOFR Interest Day is not a
Business Day, the Business Day immediately preceding such Daily SOFR Interest
Day. Any change in Daily Simple SOFR due to a change in Daily SOFR shall be
effective from and including the effective date of such change in Daily SOFR
without notice to the Borrowers. For purposes of determining any interest rate
hereunder or under any Loan Document which is based on Daily Simple SOFR, such
interest rate shall change as and when Daily Simple SOFR shall change.
"
Daily Simple SOFR Rate
" means for any day, a rate per annum equal to the greater of (a) Daily Simple
SOFR for such day
plus
a spread adjustment in the amount of 0.10% (10 basis points) and (b) zero
percent (0.0%).
"
Daily SOFR
"
means, with respect to any Business Day, a rate per annum equal to the secured
overnight financing rate for such Business Day published by the Daily SOFR
Administrator on the Daily SOFR Administrator's Website at approximately 8:00
a.m. (New York City time), or in the case of an update to such rate by the
Daily SOFR Administrator, at approximately 2:30 p.m. (New York City time), on
the immediately succeeding Business Day.
"
Daily SOFR Administrator
"
means the FRBNY (or a successor administrator of the secured overnight
financing rate).
"
Daily SOFR Administrator's Website
"
means the website of the FRBNY, currently at http://www.newyorkfed.org, or any
successor source for the secured overnight financing rate identified as such
by the Daily SOFR Administrator from time to time.
"
Daily SOFR Borrowing
" means a Borrowing comprised of one or more Daily SOFR Loans.
"
Daily SOFR Interest Day
" is defined in the definition of "Daily Simple SOFR".
- 15 -
-------------------------------------------------------------------------------
"
Daily SOFR Loan
" means any Loan with respect to which the Borrowers shall have selected an
interest rate based on the Daily Simple SOFR Rate in accordance with the
provisions of this Agreement.
"
Dealer/Manufacturer Agreement
" has the meaning specified in
Section 7.20
.
"
Dealership
" means any physical site or group of related physical sites at which any
Restricted Subsidiary of the Company operates Motor Vehicle dealerships. Such
sites may include showrooms, storage lots and repair and/or service facilities.
"
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 Lenders, 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.
- 16 -
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"
Defaulting Lender
" means, subject to
Section 5.20(b)
, any Lender that (a) has failed to (i) fund all or any portion of its Loans
within two Business Days of the date such Loans were required to be funded
hereunder unless such Lender notifies the Agent and the Company in writing
that such failure is the result of such Lender's determination that a
condition precedent to funding (each of which conditions precedent, together
with any applicable default, shall be specifically identified in such writing)
has not been satisfied or (ii) pay to the Agent, the Floor Plan Agent, any
Issuing Bank, the Swing Line Bank or any other Lender any other amount
required to be paid by it hereunder (including in respect of its participations
in Letters of Credit or Swing Line Loans) within two Business Days of the date
when due, (b) has notified the Company, the Agent, the Floor Plan Agent, any
Issuing Bank, the Swing Line Bank or any Lender in writing that it does not
intend to comply with its funding obligations hereunder or has made a public
statement to that effect (unless such writing or public statement relates to
such Lender's obligation to fund a Loan hereunder and indicates that such
position is based upon such Lender's determination that a condition precedent
to funding (which condition precedent, together with any applicable default,
shall be specifically identified in such writing or public statement) cannot
be satisfied), (c) has failed, within three Business Days after written
request by the Agent or the Company, to confirm in writing to the Agent and
the Company that it will comply with its prospective funding obligations
hereunder (provided that such Lender shall cease to be a Defaulting Lender
pursuant to this clause (c) upon receipt of such written confirmation by the
Agent and the Company) or (d) has, or has a direct or indirect parent company
that has, (i) become the subject of a proceeding under the Bankruptcy Code of
the United States of America, or any other liquidation, conservatorship,
bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement,
receivership, insolvency, reorganization or similar debtor relief law of the
United States or other applicable jurisdiction from time to time in effect,
(ii) had appointed for it a receiver, conservator, trustee, administrator,
assignee for the benefit of creditors, custodian or similar Person charged
with reorganization or liquidation of its business or assets, including the
Federal Deposit Insurance Corporation or any other state or federal regulatory
authority acting in such a capacity or (iii) become the subject of a Bail-In
Action;
provided
that a Lender shall not be a Defaulting Lender solely by virtue of any
ownership or acquisition of any Equity Interest in such Lender or any direct
or indirect parent company thereof by a Governmental Authority so long as such
ownership interest does not result in or provide such Lender with immunity
from the jurisdiction of courts within the United States or from the
enforcement of judgments or writs of attachment on its assets or permit such
Lender (or such Governmental Authority) to reject, repudiate, disavow or
disaffirm any contracts or agreements made by such Lender. Any determination
by the Agent that a Lender is a Defaulting Lender under any one or more of
clauses (a) through (d) above shall be conclusive and binding absent manifest
error, and such Lender shall be deemed to be a Defaulting Lender (subject to
Section 5.20(b)
) upon delivery of written notice of such determination to the Company, the
Floor Plan Agent, each Issuing Bank, the Swing Line Bank and each Lender.
"
Demonstrator
" means a Motor Vehicle not previously titled, which Motor Vehicle is from the
Manufacturer with which the Person owning said Motor Vehicle has an executed
Dealer/Manufacturer Agreement and with mileage resulting from customer test
drives or use of such Motor Vehicle by dealership personnel. For the avoidance
of doubt, a Demonstrator is not a New Motor Vehicle.
"
Disposition
" means the sale, lease, conveyance or other disposition of property.
"
Dollars
" and the symbol "$" mean the lawful currency of the United States of America.
"
Domestic Lending Office
" means, with respect to any Lender, the office of such Lender specified as
its "Domestic Lending Office" in its Administrative Questionnaire or such
other office as such Lender may hereafter designate from time to time as its
"Domestic Lending Office" by written notice to the Company and the Agent.
- 17 -
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"
Draft
" means a draft on a Floor Plan Borrower's account with the Floor Plan Agent
or the Swing Line Bank made by a Manufacturer in accordance with the terms of
a Drafting Agreement.
"
Drafting Agreement
" means an agreement (whether or not issued in the form of a letter of credit)
by and among the Floor Plan Agent and/or Swing Line Bank 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 and/or Swing
Line Bank (via ACH electronic transfer or otherwise) for payment of invoices
identifying one or more Motor Vehicles delivered or shipped to such Floor Plan
Borrower, on terms and conditions consistent with the usual customs and
practices in effect from time to time for the automobile industry.
"
Dual Subsidiary
" means any Restricted Subsidiary that is a Floor Plan Borrower (other than a
Ford Borrower) that enters into a separate floorplan financing arrangement
with at least one Dual Subsidiary Lender and has been designated by the
Company as a Dual Subsidiary in accordance with
Section 9.19
.
"
Dual Subsidiary Financing Commencement Date
" means, with respect to any Dual Subsidiary, the date that such Dual
Subsidiary begins to finance (x) New Motor Vehicles only or (y) (i) New Motor
Vehicles and (ii) Demonstrators and/or Rental Motor Vehicles, through
Permitted Dual Subsidiary Indebtedness as permitted by
Section 10.1(s)
.
"
Dual Subsidiary Lender
" means a Manufacturer or an Affiliated Finance Company providing VIN-specific
floorplan financing arrangements to a Floor Plan Borrower to finance Vehicles
acquired from such Manufacturer pursuant to
Section 10.1(s)
.
"
Earnings Available for Fixed Charges
" means, for any period of determination, an amount equal to (a) Consolidated
EBITDA
plus
(b) Rental Expense
minus
the sum of (c) cash income taxes, (d) cash dividends paid by the Company and
(e) Maintenance Capital Expenditures, in each case for the Company and its
Restricted Subsidiaries, determined on a consolidated basis as reported in the
annual audited and the quarterly unaudited financial statements of the Company
provided in accordance with
Section 9.5(b)
.
"
EBITDA
" means, for any Person, for any period, Net Income for such period, plus, to
the extent deducted in the determination of Net Income and without duplication
with items included in the adjustments under GAAP to Net Income in the
determination of net income, (a) provisions for income taxes, (b) Interest
Expense, (c) depreciation and amortization expense and (d) other non-cash
income or charges.
"
EEA Financial Institution
" means (a) any credit institution or investment firm established in any EEA
Member Country which is subject to the supervision of an EEA Resolution
Authority, (b) any entity established in an EEA Member Country which is a
parent of an institution described in clause (a) of this definition, or (c)
any financial institution established in an EEA Member Country which is a
subsidiary of an institution described in clauses (a) or (b) of this
definition and is subject to consolidated supervision with its parent.
"
EEA Member Country
" means any of the member states of the European Union, Iceland, Liechtenstein,
and Norway.
"
EEA Resolution Authority
" means any public administrative authority or any Person entrusted with
public administrative authority of any EEA Member Country (including any
delegee) having responsibility for the resolution of any EEA Financial
Institution.
- 18 -
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"
Electronic Signature
" means an electronic sound, symbol, or process attached to, or associated
with, a contract or other record and adopted by a Person with the intent to
sign, authenticate or accept such contract or record.
"
Eligible Accounts
" means the amount of all of the Accounts of the Company and its Subsidiaries
on which the Agent holds a perfected, first priority Lien, each of which
Accounts meet the following criteria on the date of determination:
(a) such Account arises from: (i) the sale or lease of inventory and such
Inventory has been shipped or delivered in conformity with any contract
therefor to the Person obligated on such Account or (ii) the performance of
services and such services have been fully rendered;
(b) such Account is owned by the Company or such Subsidiary free and clear
of all Liens or rights of others other than the Liens and rights of the Agent
under the Security Documents;
(c) except for amounts due from Manufacturers, the payment due date of such
Account (or portion of such Account to be included in Eligible Accounts) is
not more than ninety (90) days from the date of the original invoice;
(d) such Account is evidenced by an invoice or other statement rendered to
the responsible Account debtor or by chattel paper in favor of the Company or
one of its Subsidiaries that is a Floor Plan Borrower;
(e) such Account is the valid obligation of the Account debtor, enforceable
in accordance with its terms and neither the Company nor any of its
Subsidiaries has received notice that such Account is subject to any set-off,
counterclaim, defense, allowance or adjustment or that there is a material
dispute, objection or complaint by the Account debtor concerning its liability
for the Account, and the vehicle or other goods, the sale of which gave rise
to the Account, have not been returned, rejected, lost or damaged;
(f) no notice of an Insolvency Proceeding with respect to the Account
debtor has been received by the Company or the applicable Subsidiary;
(g) such Account is denominated in Dollars and the relevant Account debtor
is domiciled in the United States;
(h) such Account together with all other Accounts due from any one Account
debtor, other than any Manufacturer, do not comprise more than twenty percent
(20%) of the aggregate Eligible Accounts, unless otherwise approved in writing
by the Required Lenders; and
(i) the Account is not due from an Affiliate, a Subsidiary of the Company
or any Subsidiary thereof or employee of any of the foregoing.
- 19 -
-------------------------------------------------------------------------------
"
Eligible Assignee
" means (a) any Lender or any Affiliate of such Lender other than an Affiliate
of a Lender engaged in the business of automotive dealerships; (b) a
commercial bank organized under the laws of the United States, or any state
thereof, and having total assets in excess of one billion Dollars
($1,000,000,000) and having deposits that are rated in either of the two
highest generic letter rating categories (without regard to subcategories)
from either S&P Global Ratings, a division of SP Global Inc. ("
S&P
") or Moody's Investor's Service, Inc. ("
Moody's
") or a comparable nationally recognized national or international rating
agency if S&P and Moody's are not then rating such banks; (c) a commercial
bank organized under the laws of any other country which is a member of the
OECD, or a political subdivision of any such country, having total assets in
excess of one billion Dollars ($1,000,000,000) or its equivalent in any other
currency, provided that such bank is acting through a branch located in the
country in which it is organized or another country which is also a member of
the OECD; (d) the central bank of any country which is a member of the OECD;
(e) an Affiliated Finance Company; or (f) any other Person approved by the
Agent, the Floor Plan Agent, the Issuing Banks, the Swing Line Banks and the
Company (in each case if such consent is required pursuant to
Section 13.3
), which approval shall not be unreasonably withheld or delayed.
"
Eligible Borrowing Base Real Property
" means any real property of a Borrower;
provided
that Eligible Borrowing Base Real Property shall not include any real property
unless:
(a) the property is owned in fee simple by a Borrower;
(b) the property is not subject to any Liens or encumbrances (other than
easements, rights of way, zoning restrictions and other minor Liens and
encumbrances and title exceptions) and such Borrower shall not have entered
into any agreement prohibiting or limiting its ability to grant a Lien on such
property to the Agent to secure the Obligations;
provided
,
that, except for (i) tax liens securing obligations that are not yet due and
payable or that are being contested in good faith by appropriate proceedings,
or (ii) carriers', warehousemen's, mechanics', materialmen's, workmen's,
repairmen's or other like liens arising or incurred in the ordinary course of
business or amounts that are not delinquent and which are not, individually or
in the aggregate, material to the business of such Borrower, any Lien securing
debt for borrowed money shall not be considered a minor Lien or encumbrance;
(c) the property is utilized as a Dealership;
(d) the owner name, address, tenant, valuation, valuation type (appraisal
or tax assessed value) and date of valuation included for such Eligible
Borrowing Base Real Property are detailed in the quarterly Availability
Analysis delivered to the Agent and each Lender;
(e) the property is located in a state within the United States or in the
District of Columbia; and
(f) after the occurrence of an Event of Default, the Company shall deliver
to the Agent, promptly after the Agent's written request, any of the following
so requested with respect to any Eligible Borrowing Base Real Property: (i) a
new or updated FIRREA-conforming appraisal, evaluation, or report as of such
date as the Agent requires to determine the value of such property, (ii) a
Phase I (or if necessary, Phase II) environmental report and such other
environmental audits, assessments, studies and reports as the Agent requires,
prepared by a geotechnical engineer or other qualified Person acceptable to
the Agent, (iii) a title report, and (iv) flood hazard certificates, and if
applicable, evidence of flood insurance coverage;
provided
that if the Agent deems such real property not to be acceptable or able to be
mortgaged, the Agent shall notify the Company and such real property shall
cease to be Eligible Borrowing Base Real Property ninety (90) days after
delivery of such notice.
- 20 -
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"
EMU
" means the economic and monetary union of the European Union provided for in
the Maastricht Treaty, effective January 1, 1993, among the participating
member states party thereto.
"
Equipment
" has the meaning set forth in the UCC.
"
Equity Interests
" means all shares, interests or other equivalents, however designated, of or
in a corporation, limited liability company, or partnership, whether or not
voting, including but not limited to common stock, member interests,
partnership interests, warrants, preferred stock, convertible debentures, and
all agreements, instruments and documents convertible, in whole or in part,
into any one or more or all of the foregoing.
"
Equivalent Amount
" means as at any date the amount of Euros or Pounds Sterling into which an
amount of Dollars may be converted, or the amount of Dollars into which an
amount of Euros or Pounds Sterling may be converted, in either case by the
Agent at the mid-point noon spot rate of exchange for such date in Brussels or
London at approximately 11:00 a.m., local time on such date.
"
ERISA
" means the Employee Retirement Income Security Act of 1974, together with the
regulations thereunder, in each case as in effect from time to time.
References to sections of ERISA shall be construed to also refer to any
successor sections.
"
ERISA Affiliate
" means any corporation, trade or business that is, along with the Company, a
member of a controlled group of corporations or a controlled group of trades
or businesses, as described in Sections 414(b) and 414(c), respectively, of
the Code or Section 4001(a)(14) of ERISA.
"
ERISA Event
" means (a) any Reportable Event; (b) the failure with respect to any Plan to
satisfy the "minimum funding standard" (as defined in Section 412 of the Code
or Section 302 of ERISA), whether or not waived; (c) the filing pursuant to
Section 412(c) of the Code or Section 302(c) of ERISA of an application for a
waiver of the minimum funding standard with respect to any Plan; (d) the
incurrence by any Borrower or any of its ERISA Affiliates of any liability
under Title IV of ERISA with respect to the termination of any Plan; (e) the
receipt by any Borrower or any ERISA Affiliate from the PBGC or a plan
administrator of any notice relating to an intention to terminate any Plan or
Plans or to appoint a trustee to administer any Plan; (f) the incurrence by
any Borrower or any of its ERISA Affiliates of any liability with respect to
the withdrawal or partial withdrawal of such Borrower or any of its ERISA
Affiliates from any Plan or Multiemployer Plan; or (g) the receipt by any
Borrower or any ERISA Affiliate of any notice, or the receipt by any
Multiemployer Plan from any Borrower or any ERISA Affiliate of any notice,
concerning the imposition upon any Borrower or any of its ERISA Affiliates of
withdrawal liability under Section 4201 of ERISA or a determination that a
Multiemployer Plan is, or is expected to be, insolvent, within the meaning of
Title IV of ERISA.
"
Erroneous Payment
" is defined in
Section 12.17(a)
.
"
Escrow and Security Agreement
" means that certain Second Amended and Restated Escrow and Security Agreement
dated as of the Closing Date executed by the Company and certain other
Borrowers in favor of the Agent for the benefit of the Secured Parties 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.
"
E-SIGN
" means the Federal Electronic Signatures in Global and National Commerce Act,
as amended from time to time, and any successor statute, and any regulations
promulgated thereunder from time to time.
- 21 -
-------------------------------------------------------------------------------
"
EU
" means the European Union.
"
EU Bail-In Legislation Schedule
" means the EU Bail-In Legislation Schedule published by the Loan Market
Association (or any successor Person), as in effect from time to time.
"
Euro
", "Euros" and "" mean the currency of the participating member states of the
EMU.
"
Eurocurrency Borrowing
" means a Borrowing comprised of one or more Eurocurrency Loans.
"
Eurocurrency Loan
" means an Acquisition Loan requested in Euros with respect to which the
Company shall have elected an interest rate based on the Eurocurrency Rate.
"
Eurocurrency Rate
" means, with respect to a Eurocurrency Loan, the rate per annum determined by
the Alternative Currency Agent to be the current rate (rounded upwards to the
nearest 1/100 of 1%) of the Banking Federation of the European Union for the
Reuters (Telerate) Screen - Page 248 as of 11:00 a.m., Continental European
Time, two (2) Business Days prior to the beginning of such Interest Period;
provided
that if such rate shall be less than zero, such rate shall be deemed to be
zero for purposes of this Agreement. In the event that such rate does not
appear thereon (or otherwise on such service), the "Eurocurrency Rate" for
purposes of this definition shall be determined by: (i) reference to such
other comparable publicly available service for displaying EURIBOR rates as
may be reasonably selected by the Alternative Currency Agent or (ii) at its
option, the rate at which Euros approximately equal in principal amount to
such Borrowing and for a maturity equal to the applicable Interest Period are
offered in immediately available funds to the principal office of the
Alternative Currency Agent in Minneapolis, Minnesota by leading banks in the
European Market for Euros at approximately 11:00 a.m., Minneapolis, Minnesota
time, two (2) Business Days prior to the commencement of such Interest Period;
provided
that if such rate shall be less than zero, such rate shall be deemed to be
zero for purposes of this Agreement.
"
Event of Default
" means either a Floor Plan Event of Default or an Acquisition Event of Default.
"
Excluded Taxes
" means any of the following Taxes imposed on or with respect to a Recipient
or required to be withheld or deducted from a payment to a Recipient: (a)
Taxes imposed on or measured by net income (however denominated), franchise
Taxes, and branch profits Taxes, in each case, (i) imposed as a result of such
Recipient being organized under the laws of, or having its principal office
or, in the case of any Lender, its lending office located in, the jurisdiction
imposing such Tax (or any political subdivision thereof) or (ii) that are
Other Connection Taxes, (b) in the case of a Lender, U.S. federal withholding
Taxes imposed on amounts payable to or for the account of such Lender with
respect to an applicable interest in a Loan or Commitment pursuant to a law in
effect on the date on which (i) such Lender acquires such interest in the Loan
or Commitment (other than pursuant to an assignment requested by the Company
under
Section 5.17
) or (ii) such Lender changes its lending office, except in each case to the
extent that, pursuant to Section 5.14, amounts with respect to such Taxes were
payable either to such Lender's assignor immediately before such Lender became
a party hereto or to such Lender immediately before it changed its lending
office, (c) Taxes attributable to such Recipient's failure to comply with
Section 5.14(f)
and (d) any withholding taxes imposed under FATCA.
"
Existing Letters of Credit
" means the Letters of Credit listed on
Schedule 1.1(d)
.
"
Facility Office
" means the office of a Lender, or of the Affiliate of a Lender, designated by
such Lender as its lending office for Eurocurrency or Pounds Sterling Loans.
- 22 -
-------------------------------------------------------------------------------
"
Fair Market Value
" means, with respect to any asset or property, the sale value that would be
obtained in an arm's-length free market transaction between an informed and
willing seller under no compulsion to sell and an informed and willing buyer
under no compulsion to buy, determined in good faith by senior management or
the Board of Directors of the Company, whose determination will be conclusive
for all purposes under this Agreement.
"
FATCA
" means Section 1471 through 1474 of the Code as of the Closing Date (or any
amended or successor version that is substantively comparable and not
materially more onerous to comply with), any current or future regulations or
official interpretations thereof, any agreements entered into pursuant to
Section 1471(b)(1) of the Code and any fiscal or regulatory legislation, rules
or practices adopted pursuant to any intergovernmental agreement treaty or
convention among Governmental Authorities entered into in connection with the
implementation of the foregoing.
"
Federal Funds Effective Rate
" means, for any day, means, for any day, the greater of (a) zero percent
(0.0%) and (b) the rate calculated by the FRBNY based on such day's federal
funds transaction by depositary institutions (as determined in such manner as
the FRBNY shall set forth on its public website from time to time) and
published on the next succeeding Business Day by the FRBNY as the federal
funds effective rate, or, if such rate is not so published for any day which
is a Business Day, the average of the quotations at approximately 10:00 a.m.
(Central time) on such day on such transactions received by the Agent from
three (3) Federal funds brokers of recognized standing selected by the Agent
in its sole discretion.
"
Fixed Charge Coverage Ratio
" means the ratio of (a) Earnings Available for Fixed Charges minus Floor Plan
Interest Expense to (b) Fixed Charges minus Floor Plan Interest Expense.
"
Fixed Charges
" means, for any period of determination, without duplication, the sum of (a)
Interest Expense, (b) Rental Expense and (c) scheduled principal payments but
excluding any balloon payments due under this Agreement or any Indebtedness
permitted hereunder, in each case, for the Company and its Restricted
Subsidiaries, determined on a consolidated basis.
"
Fleet Motor Vehicle
" means one of a large group of New Motor Vehicles sold to a Person (e.g., a
rental car agency) which purchases in excess of ten (10) vehicles per month
for commercial use.
"
Floor Plan Adjustment Date
" means each of (a) the first Business Day of each week and (b) the first
Business Day after two (2) Business Days prior written notice from the Swing
Line Bank to the Floor Plan Agent requesting therein a particular date to be a
Floor Plan Adjustment Date.
"
Floor Plan Advance Limit
" means (a) with respect to New Motor Vehicles, Rental Motor Vehicles and
Demonstrators (other than, for the avoidance of doubt, any New Motor Vehicles,
Rental Motor Vehicles and Demonstrators financed with Permitted New Vehicle
Floor Plan Indebtedness, Permitted Dual Subsidiary Indebtedness or
Indebtedness incurred pursuant to Section 10.1(r)), the wholesale purchase
price invoiced by a Manufacturer to the Floor Plan Borrower, and (b) with
respect to Used Motor Vehicles and Program Cars, the cost of such vehicles to
the applicable Floor Plan Borrower;
provided
that, with respect to Used Motor Vehicles and Program Cars, the aggregate
amount of Floor Plan Loans outstanding at any time may not exceed an amount
equal to eighty-five percent (85%) of the aggregate Book Value of all Used
Motor Vehicles and Program Cars owned by the Floor Plan Borrowers on a non-VIN
specific basis (such amount to be included on the Used Borrowing Base
Calculation delivered pursuant to
Section 9.5(i)
).
"
Floor Plan Agent
" has the meaning specified in the introduction to this Agreement.
- 23 -
-------------------------------------------------------------------------------
"
Floor Plan Agent's Letter
" has the meaning specified in
Section 5.4(c)
.
"
Floor Plan Borrower
" means the Company and any Restricted Subsidiary of the Company that is an
Auto Dealer party to this Agreement, and has granted a first priority Lien to
the Agent for the benefit of the Secured Parties on certain of its property
that is Collateral in accordance with the Security Documents, subject only to
Permitted Liens.
"
Floor Plan Event of Default
" means the occurrence of one of the events specified in
Section 11.3
.
"
Floor Plan Indebtedness
" means all secured Indebtedness of the Borrowers incurred to finance Motor
Vehicles.
"
Floor Plan Interest Expense
" means that component of the Company and its Restricted Subsidiaries'
aggregate Interest Expense, determined on a consolidated basis, attributable
to Floor Plan Indebtedness.
"
Floor Plan Lenders
" means all Lenders having a Floor Plan Loan Commitment.
"
Floor Plan Loan
" has the meaning specified in
Section 2.1
.
"
Floor Plan Loan Borrowing
" means a Borrowing of Floor Plan Loans.
"
Floor Plan Loan Commitment
" means for each Floor Plan Lender, its obligation to make Floor Plan Loans to
the Floor Plan Borrowers up to the amount set forth opposite such Lender's
name on
Schedule 1.1(a)
under the caption "Floor Plan Loan Commitments" (as the same may be
permanently terminated, reduced or increased from time to time pursuant to the
applicable provisions of
Section 2.3(c)(iii)
,
Section 3.4
,
Section 5.5
,
Section 5.18
or
Section 11.4
and as such amount may be increased or decreased from time to time by an
Assignment and Acceptance pursuant to
Section 5.17
or
Section 13.3(b)
).
"
Floor Plan Note
" means each of the Notes substantially in the form of
Exhibit 1.1C
, duly issued by the Floor Plan Borrowers to each Lender in the aggregate
principal face amount of such Lender's Floor Plan Loan Commitment.
"
Floor Plan Tranche Amount
" has the meaning specified in
Section 2.4(a)
.
"
Ford Borrower
" means the Borrowers set forth on
Schedule 1.1(b)
and any other Restricted Subsidiary of the Company engaged in the sale of New
Motor Vehicles manufactured by any division of the Ford Motor Company pursuant
to a Dealer/Manufacturer Agreement with the Ford Motor Company.
"
Ford Borrower Liability Amount
" means, at any time, an amount equal to the lesser of (a) all Obligations
owed to the Lenders by the Company and/or any of the Ford Borrowers or (b) the
sum of (i) an amount equal to all Floor Plan Loans outstanding to any Ford
Borrower, and (ii) an amount equal to the greater of (y) $25,000,000 or (z)
all cash consideration ever paid by the Company or any of its Subsidiaries in
connection with the acquisition of the stock or other Equity Interest in, or
assets of, any Auto Dealer engaged in the sale of New Motor Vehicles
manufactured by Ford Motor Company, and (iii) 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, and (iv) 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.
- 24 -
-------------------------------------------------------------------------------
"
Foreign Lender
" means a Lender that is not a U.S. Person.
"
FRBNY
" means the Federal Reserve Bank of New York.
"
FRBNY Rate
" means, for any day, the greater of (a) the Federal Funds Effective Rate in
effect on such day and (b) the Overnight Bank Funding Rate in effect on such
day (or for any day that is not a Business Day, for the immediately preceding
Business Day);
provided
that if none of such rates are published for any day that is a Business Day,
the term "FRBNY Rate" means the rate for a federal funds transaction quoted at
11:00 a.m. on such day received by the Agent from a federal funds broker of
recognized standing selected by it;
provided
,
further
, that if any of the aforesaid rates shall be less than zero, such rate shall
be deemed to be zero for purposes of this Agreement.
"
Fronting Exposure
" means, at any time there is a Defaulting Lender, (a) with respect to any
Issuing Bank, such Defaulting Lender's Pro Rata Share of Acquisition Loan
Commitments multiplied by the outstanding Letter of Credit Exposure with
respect to Letters of Credit issued by such Issuing Bank other than Letter of
Credit Exposure as to which such Defaulting Lender's participation obligation
has been reallocated to other Lenders or Cash Collateralized in accordance
with the terms hereof, and (b) with respect to the Swing Line Bank, such
Defaulting Lender's Pro Rata Share of Floor Plan Loan Commitments multiplied
by the outstanding Swing Line Loans other than Swing Line Loans as to which
such Defaulting Lender's participation obligation has been reallocated to
other Lenders or Cash Collateralized in accordance with the terms hereof.
"
Fronting Fees
" has the meaning specified in
Section 6.7(b)
.
"
FSHCO
" means any Subsidiary of the Company (a) that is organized under the laws of
the United States, any state thereof or the District of Columbia and (b) that
owns no material assets other than Equity Interests and/or Indebtedness of one
or more Controlled Foreign Subsidiaries or FSHCOs.
"
GAAP
" means generally accepted accounting principles as in effect, as of the
applicable date of determination thereof, from time to time as set forth in
the opinions, statements and pronouncements of the Accounting Principles Board
of the American Institute of Certified Public Accountants and the Financial
Accounting Standards Board applied on a consistent basis.
"
GM Borrowers
" means the Borrowers set forth on
Schedule 1.1(c)
and any other Subsidiary of the Company engaged in the sale of New Motor
Vehicles manufactured by any division of General Motors Corporation pursuant
to a Dealer/Manufacturer Agreement with General Motors Corporation.
"
GM Borrower Guaranty
" means that certain Second Amended and Restated Guaranty Agreement dated as
of the Closing Date executed by the GM Borrowers in favor of the Agent for the
benefit of the Secured Parties.
"
GM Borrower Liability Amount
" means, at any time, the sum of (a) an amount equal to the Floor Plan
Borrowings of all GM Borrowers and (b) an amount equal to 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.
"
GM Financial
" means AmeriCredit Financial Services, Inc. dba GM Financial.
- 25 -
-------------------------------------------------------------------------------
"
Governmental Authority
" means any nation or government, any state or other political subdivision
thereof, any central bank (or similar monetary or regulatory authority)
thereof, and any entity exercising executive, legislative, judicial,
regulatory or administrative functions of, or pertaining to, government
(including any supra-national bodies such as the European Union or the
European Central Bank).
"
Guarantee
" by any Person means all obligations (other than endorsements in the ordinary
course of business of negotiable instruments for deposit or collection) of
such Person guaranteeing, or in effect guaranteeing, 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) (i) to advance or supply funds for the purchase or payment of such
Indebtedness or obligation or (ii) to maintain working capital or other
balance sheet condition or otherwise to maintain funds for the purchase or
payment of such Indebtedness or obligation,
(c) to lease property under a Capital Lease or any other lease, the lessee
under which is a Person other than the Company or a Wholly Owned Subsidiary or
to purchase securities or other property or services primarily for the purpose
of assuring the owner of such Indebtedness or obligation of the ability of the
Primary Obligor to make payment of such Indebtedness or perform such
obligation, or
(d) otherwise to assure the owner of such Indebtedness or such obligation
of the Primary Obligor against loss in respect thereof.
"
Hedging Agreement
" means any interest rate or currency swap, rate cap, rate floor, rate collar,
forward agreement, or other exchange or rate protection agreement or any
option with respect to any such transaction that is entered into in the
ordinary course of business for risk management purposes and not for
speculative purposes.
"
Highest Lawful Rate
" means, as to any Lender, the maximum non-usurious 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 and as applied in accordance with
Section 13.6
and 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.
"
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, letter of
credit reimbursement agreements or other similar debt instruments,
(b) all obligations of such Person under conditional sale or other title
retention agreements relating to property purchased by such Person, regardless
of whether any personal liability exists in respect thereof,
- 26 -
-------------------------------------------------------------------------------
(c) any obligation of such Person for the deferred purchase price of any
property or services, regardless of whether any personal liability exists in
respect thereof, except accounts payable from time to time incurred in the
ordinary course of such Person's business and which are not in excess of
ninety (90) days past invoice or billing date,
(d) obligations in respect of Capital Leases of such Person,
(e) all Guarantees by such Person;
provided
,
however
, that a Guarantee will not be considered Indebtedness if the underlying
obligation secured by such Guarantee would not constitute Indebtedness under
this Agreement,
(f) any Indebtedness of another Person secured by a Lien on any asset of
such first Person, whether or not such Indebtedness is assumed by such first
Person,
(g) any Indebtedness consisting of preferred stock of a Person having a
mandatory redemption date prior to the Maturity Date; and
(h) amounts owed by such Person under any Hedging Agreement, provided that
(except for amounts owed that are Indebtedness pursuant to clauses (a) through
(g) above), such amounts will not be considered Indebtedness for the purposes
of determining the Fixed Charge Coverage Ratio and the Total Adjusted Leverage
Ratio.
"
Indemnified Taxes
" means (a) Taxes, other than Excluded Taxes, imposed on or with respect to
any payment made by or on account of any obligation of a Borrower under any
Loan Document and (b) to the extent not otherwise described in (a), Other
Taxes.
"
Indemnitee
" has the meaning specified in
Section 13.4(b)
.
"
Indirect Swap Obligation
" means, with respect to any Borrower, any obligation to pay or perform under
any Lender Hedging Agreement to which another Borrower or a Restricted
Subsidiary of any Borrower is party, to the extent such Lender Hedging
Agreement constitutes a "swap" within the meaning of section 1a(47) of the
Commodity Exchange Act.
"
Insolvency Proceeding
" means (a) any case, action or proceeding relating to bankruptcy,
reorganization, insolvency, liquidation, receivership, dissolution, winding-up
or relief of debtors, or (b) any general assignment for the benefit of
creditors, composition, marshaling of assets for creditors, or other similar
arrangements in respect of its creditors generally or any substantial portion
of a Person's creditors, undertaken under federal law.
"
Intercreditor Agreement
" mean an intercreditor agreement, in form and substance reasonably
satisfactory to the Agent, the Floor Plan Agent and the Required Lenders,
executed in connection with or pursuant to this Agreement between the Agent
and the applicable Required Intercreditor Counterparty.
"
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 (other than Rental Expense) allocable to
interest, but excluding interest allowances from Manufacturers).
- 27 -
-------------------------------------------------------------------------------
"
Interest Payment Date
" means, (a) with respect to Daily SOFR and Pounds Sterling Loans, the third
(3rd) Business Day of each month, (b) with respect to Term SOFR and
Eurocurrency Loans, the last day of the Interest Period applicable to each
such Loan, and (c) with respect to Alternate Base Rate Loans, on the first
Business Day of each January, April, July and October of each year, commencing
April 1, 2022.
"
Interest Period
" means, with respect to a Term SOFR Borrowing or a Eurocurrency Borrowing, a
period of one month (in each case, subject to the availability thereof)
commencing on a Business Day selected by the Company pursuant to this
Agreement and ending on the day that corresponds numerically to such date one
month thereafter; provided that
(a) any Interest Period that would otherwise end on a day that is not a
Business Day shall be extended to the next succeeding Business Day unless such
succeeding Business Day falls in a new calendar month, in which case such
Interest Period shall end on the immediately preceding Business Day;
(b) any Interest Period that commences on the last Business Day of a
calendar month (or on a day for which there is no numerically corresponding
day in the calendar month at the end of such Interest Period) shall end on the
last Business Day of the calendar month at the end of such Interest Period;
(c) no Interest Period shall extend beyond the Maturity Date; and
(d) no tenor that has been removed from this definition pursuant to Section
5.6(b)(iv) may be available for selection by the Company.
"
Inventory
" has the meaning set forth in the UCC.
"
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, Rental
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 in any other Person, whether by
means of a purchase of capital stock or other evidence of equity ownership or
debt securities, capital contribution, loan, guarantee, time deposit or
otherwise (but not including any demand deposit), excluding, however, any
issuance by the Company of its capital stock to any Person.
"
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 each of U.S. Bank, JPMorgan Chase Bank, N.A., Bank of America, N.A.,
Wells Fargo Bank, N.A., PNC Bank, National Association and any Lender that is
an issuing bank with respect to an Existing Letter of Credit, each 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. Any Issuing Bank may, in its discretion, arrange for one or more
Letters of Credit to be issued by Affiliates of such Issuing Bank, in which
case the term "Issuing Bank" shall include any such Affiliate with respect to
Letters of Credit issued by such Affiliate.
- 28 -
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"
Laws
" means, collectively, all international, foreign, federal, state and local
statutes, treaties, rules, guidelines, regulations, ordinances, codes and
administrative or judicial precedents or authorities, including the
interpretation or administration thereof by any Governmental Authority charged
with the enforcement, interpretation or administration thereof, and all
applicable administrative orders, directed duties, requests, licenses,
authorizations and permits of, and agreements with, any Governmental
Authority, in each case whether or not having the force of law.
"
Lender Hedging Agreement
" means any Hedging Agreement between the Company or any Restricted Subsidiary
and any Lender or any Affiliate of any Lender which is in existence on the
Closing Date or which is entered into while such Person is a Lender or an
Affiliate of a Lender even if such Person ceases to be a Lender or an
Affiliate of a Lender after entering into such Hedging Agreement. The term
"Lender Hedging Agreement" shall not include any Hedge Agreement that is
Permitted Real Estate Debt.
"
Lender Party
" is defined in
Section 12.17(a)
.
"
Lenders
" has the meaning specified in the introduction to this Agreement, and
Lender(s) shall include the Floor Plan Lenders, the Acquisition Loan Lenders
and the Swing Line Bank unless the context otherwise requires.
"
Letter of Credit
" means any letter of credit issued pursuant to
Article VI
and each Existing Letter of Credit.
"
Letter of Credit Advance
" means each Lender'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 in the then standard form promulgated by the relevant Issuing Bank.
"
Letter of Credit Commitment
" means the several commitment of each Issuing Bank to Issue Letters of Credit
in an aggregate amount for all Issuing Banks not to exceed on any date the
lesser of (a) the aggregate Letter of Credit Commitments of all Issuing Banks
at such time, which Commitments, as of the Closing Date, are equal to
$100,000,000, and (b) the Total Acquisition Loan Commitment at such time. The
initial amount of each Issuing Bank's Letter of Credit Commitment is set forth
on
Schedule 1.1(e)
.
"
Letter of Credit Exposure
" means, at any time, the sum of (a) the aggregate undrawn amount of all
outstanding Letters of Credit at such time
plus
(b) the aggregate amount of all unreimbursed drawings under all Letters of
Credit that have not been converted into Acquisition Loans pursuant to
Section 6.3
. The Letter of Credit Exposure of any Lender shall be equal to such Lender's
Pro Rata Share of Acquisition Loan Commitments multiplied by the total Letter
of Credit Exposure.
"
Letter of Credit Fees
" has the meaning specified in
Section 6.7(a)
.
"
Letter of Credit Obligations
" means at any time the sum of (a) the aggregate undrawn amount of all Letters
of Credit then outstanding, plus (b) the amount of all unreimbursed drawings
under all Letters of Credit, including all outstanding Loans outstanding under
Section 6.3(b)
or
Section 6.3(c)
.
- 29 -
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"
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 relevant Issuing Bank's standard documents for
issuance of Letters of Credit.
"
Letter of Credit Termination Date
" has the meaning provided in
Section 6.1(a)
.
"
Lien
" means any mortgage, pledge, hypothecation, judgment lien or similar legal
process, conditional sale, title retention or other security interest, or any
lease in the nature thereof.
"
Loan
" means an Alternate Base Rate Loan, a SOFR Loan, an Acquisition Loan, a
Pounds Sterling Loan, a Eurocurrency 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,
the Floor Plan Agent's Letter, the GM Borrower Guaranty, the Intercreditor
Agreements and all other documents and instruments executed by the Borrowers
or any other Person in connection with this Agreement and the Loans.
"
Maintenance Capital Expenditures
" means an amount equal to $100,000 per year per Dealership.
"
Manufacturer
" means the manufacturer or a manufacturer appointed wholesale distributor of
a Motor Vehicle.
"
Manufacturer/Dealer Statement
" means a financial statement prepared by a Floor Plan Borrower for a
Manufacturer and delivered to the Manufacturer on a periodic basis as required
by the Manufacturer.
"
Manufacturer's Certificate
" means any Manufacturer's statement of origin, certificate of origin or any
other document evidencing the ownership or transfer of ownership of a New
Motor Vehicle, Demonstrator or Rental Motor Vehicle from a Manufacturer to a
Borrower.
"
Margin Stock
" has the meaning specified in Regulation U.
"
Material Adverse Effect
" means, relative to any occurrence of whatever nature (including any 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 Restricted
Subsidiaries, on a consolidated basis, (ii) a material impairment of the
ability of the Company and its Restricted Subsidiaries on a consolidated basis
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 the fifth anniversary of the Closing Date or the earlier termination
of the Commitments under
Section 5.5
,
Section 11.2
and
Section 11.4
unless extended pursuant to
Section 5.16
.
"
Maximum Permissible Rate
" has the meaning specified in
Section 13.8
.
"
Motor Vehicle
" means any motorized vehicle approved for highway use by any State of the
United States.
"
Multiemployer Plan
" means a "multiemployer plan" as defined in Section 4001(a)(3) of ERISA.
- 30 -
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"
Net Income
" means for any Person, for any period of determination, the net income (or
net losses) of such Person and its Subsidiaries on a consolidated basis as
determined in accordance with GAAP after deducting, to the extent included in
computing said net income and without duplication, (i) the income (or deficit)
of any Person (other than a Wholly Owned Subsidiary of such Person), in which
such Person or any of its Subsidiaries has any ownership interest, except to
the extent that any such income has been actually received by such Person or
such Subsidiary in the form of cash dividends or similar cash distribution,
(ii) any income (or deficit) of any other Person accrued prior to the date it
becomes a Subsidiary of such Person or merges into or consolidates with such
Person, (iii) the gain or loss (net of any tax effect) resulting from the sale
of any capital assets, (iv) any gains or losses or other income which are
non-recurring or extraordinary, (v) any portion of the net income of any
Subsidiaries which is not available for distribution, (vi) any gains or losses
realized from the repurchase by any Person of such Person's Indebtedness at a
discount or premium, (vii) non-cash impairment charges (net of any tax effect)
or asset write-offs or write-downs (net of any tax effect), (viii) non-cash
gains or losses (net of any tax effect) directly relating to the mark to
market of any Hedging Agreement required by FASB Statement No. 133 and (ix)
any non-cash expense (net of any tax effect) relating to stock-based
compensation required under FASB Statement No. 123(R).
"
New Lender
" has the meaning specified in
Section 5.18(b)
.
"
New Lender Agreement
" has the meaning specified in
Section 5.18(b)
.
"
New Motor Vehicle
" means any Motor Vehicle not previously titled and which Motor Vehicle is
purchased from the Manufacturer with which the Person owning said Motor
Vehicle has an executed Dealer/Manufacturer Agreement. For the avoidance of
doubt, neither a Demonstrator, a Rental Motor Vehicle nor a Program Car is a
New Motor Vehicle.
"
New Vehicle Floor Plan Loans
" has the meaning specified in
Section 5.2(d)
.
"
New Vehicle Swing Line Loans
" has the meaning specified in
Section 5.2(e)
.
"
Non-Defaulting Lender
" means, at any time, each Lender that is not a Defaulting Lender at such time.
"
Note
" and "
Notes
" mean each of the Acquisition Notes, the Floor Plan Notes and the Swing Line
Note.
"
Obligations
" means all advances, debts (whether of principal, interest (including
post-petition interest) or any other amounts), liabilities, obligations,
covenants and duties arising under any Loan Document, any Lender Hedging
Agreement or any Bank Product owing by any Borrower or any Restricted
Subsidiary to any Lender, the Agent, the Floor Plan Agent, the Swing Line Bank
or the Issuing Bank (or, with respect to any Lender Hedging Agreement, to such
other Person described in the definition of "Lender Hedging Agreement" or,
with respect to any Bank Product, to any Affiliate of a Lender) and all
obligations in respect of Bank Products, in each case, 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.
"
OFAC
" means the U.S. Department of the Treasury's Office of Foreign Assets
Control, and any successor thereto.
"
Offset Account
" has the meaning specified in
Section 5.2(f)
.
- 31 -
-------------------------------------------------------------------------------
"
Offset Amount
" has the meaning specified in
Section 5.2(f)
.
"
Other Activities
" has the meaning specified in
Section 12.4
.
"
Other Connection Taxes
" means, with respect to any Recipient, Taxes imposed as a result of a present
or former connection between such Recipient and the jurisdiction imposing such
Tax (other than connections arising from such Recipient having executed,
delivered, become a party to, performed its obligations under, received
payments under, received or perfected a security interest under, engaged in
any other transaction pursuant to or enforced any Loan Document, or sold or
assigned an interest in any Loan or Loan Document).
"
Other Financings
" has the meaning specified in
Section 12.4
.
"
Other Taxes
" means all present or future stamp, court or documentary, intangible,
recording, filing or similar Taxes that arise from any payment made under,
from the execution, delivery, performance, enforcement or registration of,
from the receipt or perfection of a security interest under, or otherwise with
respect to, any Loan Document, except any such Taxes that are Other Connection
Taxes imposed with respect to an assignment (other than an assignment made
pursuant to
Section 5.17(b)
).
"
Out of Balance
" means that (i) with respect to a Motor Vehicle, the outstanding balance of
the Floor Plan Loan pursuant to which such Motor Vehicle was purchased exceeds
the Floor Plan Advance Limit 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) Motor Vehicles for
which cash has been received upon the sale thereof shall have been received
within five (5) calendar days of the sale thereof and (z) Sale Dated Motor
Vehicles shall have been received within fifteen (15) calendar days of the
sale thereof, such Loans shall not be considered Out of Balance.
"
Overage Amount
" has the meaning specified in
Section 9.12(b)
.
"
Overnight Bank Funding Rate
" means, for any day, the rate comprised of both overnight federal funds and
overnight eurodollar borrowings by U.S.-managed banking offices of depository
institutions (as such composite rate shall be determined by the FRBNY as set
forth on its public website from time to time) and published on the next
succeeding Business Day by the FRBNY as an overnight bank funding rate.
"
Participant Register
" has the meaning specified in
Section 13.3(f)
.
"
Payment Recipient
" is defined in
Section 12.17(a)
.
"
PBGC
" means the Pension Benefit Guaranty Corporation and any entity succeeding to
any or all of its functions under ERISA.
"
Permitted Acquisition
" has the meaning specified in
Section 9.16(a)
.
"
Permitted Dual Subsidiary Guaranty
" means, with respect to any Permitted Dual Subsidiary Indebtedness provided
by any Dual Subsidiary Lender, the guaranty of such Permitted Dual Subsidiary
Indebtedness by (a) the Company or (b) any Dual Subsidiary that operates one
or more Dealerships with respect to which Permitted Dual Subsidiary
Indebtedness is provided by such Dual Subsidiary Lender.
"
Permitted Dual Subsidiary Indebtedness
" has the meaning specified in
Section 10.1(s)
.
- 32 -
-------------------------------------------------------------------------------
"
Permitted Liens
" means those Liens described in
Section 10.2
.
"
Permitted New Vehicle Floor Plan Indebtedness
" has the meaning specified in
Section 10.1(q)
.
"
Permitted Real Estate Debt
" means (i) Indebtedness of a Subsidiary existing as of the Closing Date or
incurred in connection with a Permitted Acquisition,
provided
that such Indebtedness is secured solely by real estate, improvements,
fixtures, leases, rents and related real property rights of such Subsidiary
used in the day-to-day operations of its business and (ii) other Indebtedness
and related interest rate swap agreements of a Subsidiary, provided that such
Indebtedness is secured solely by such real estate, improvements, fixtures,
leases, rents and related real property rights of such Subsidiary and
further
provided
that the amount of such indebtedness does not exceed 95% of the fair market
value of the real estate collateral securing such Indebtedness.
"
Person
" means any natural person, corporation, trust, business trust, association,
company, limited liability company, joint venture, partnership or Governmental
Authority.
"
Plan
" means a "pension plan," as such term is defined in Section 3(2)(A) of ERISA
(other than a Multiemployer Plan), established or maintained by the Company or
any of its Subsidiaries or any ERISA Affiliate or as to which the Company or
any of its Subsidiaries or any ERISA Affiliate contributes or is a member or
otherwise may have any liability.
"
Platform
" means the Floor Plan Agent's electronic flooring platform system as in
effect from time to time.
"
Pounds Sterling
" and the symbol means pounds sterling, the official currency of the United
Kingdom.
"
Pounds Sterling Borrowing
" means a Borrowing comprised of one or more Pounds Sterling Loans.
"
Pounds Sterling Loan
" means an Acquisition Loan requested in Pounds Sterling with respect to which
the Company shall have selected an interest rate based on the Pounds Sterling
Rate.
"
Pounds Sterling Rate
" means, for any day, with respect to a Pounds Sterling Loan, the rate per
annum, equal to SONIA determined pursuant to the definition thereof plus the
SONIA Adjustment;
provided
that if such rate shall be less than zero, such rate shall be deemed to be
zero for purposes of this Agreement. Any change in the Pounds Sterling Rate
due to a change in SONIA shall be effective from and including the effective
date of such change in SONIA without notice to the Borrowers. For purposes of
determining any interest rate hereunder or under any Loan Document which is
based on the Pounds Sterling Rate, such interest rate shall change as and when
SONIA shall change.
"
Prime Rate
" means the rate of interest per annum publicly announced from time to time by
U.S. Bank or its parent as its prime rate in effect (which is not necessarily
the lowest rate charged to any customer); each change in the Prime Rate shall
be effective from and including the date such change is publicly announced as
being effective.
- 33 -
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"
Pro Forma EBITDA
" means, for any Person, for any period of determination, EBITDA of such
Person for the immediately preceding four fiscal quarters plus (or minus),
without duplication, the EBITDA for such four quarter period of any Person
acquired during such period as if such acquisition had occurred on the first
day of such four quarter period,
provided
, if a calculation of Pro Forma EBITDA results in an increase in the Company's
Consolidated EBITDA by 10% or more from the most recent date of determination,
no such increase above 10% shall be considered a part of any computation
hereunder unless the applicable calculations of Pro Forma EBITDA are based on
supporting calculations and such other information as the Agent may reasonably
request to determine the accuracy of such calculation.
"
Pro Forma Floor Plan Interest Expense
" means, for any Person, as of any period of determination, Floor Plan
Interest Expense of such Person for the immediately preceding four fiscal
quarters plus, without duplication, the Floor Plan Interest Expense for such
period of any Person acquired during such period, as if acquired on the first
day of such period.
"
Pro Forma Rental Expense
" means, for any Person, as of any period of determination, Rental Expense of
such Person for the immediately preceding four quarters plus, without
duplication, rental expense for such period of any Person acquired during such
period as if acquired on the first day of such four quarter period.
"
Pro Rata Share
" means Pro Rata Share of Acquisition Loan Commitments, Pro Rata Share of
Floor Plan Loan Commitments or Pro Rata Share of Total Commitments as the
context shall indicate.
"
Pro Rata Share of Acquisition Loan Commitments
" means, at any time, with respect to any Acquisition Loan Lender, the
percentage corresponding to a fraction, the numerator of which shall be the
amount of the Acquisition Loan Commitment of such Lender and the denominator
of which shall be the Total Acquisition Loan Commitment;
provided
, that in the case of
Section 5.20
when a Defaulting Lender shall exist, such Defaulting Lender's Acquisition
Loan Commitment shall be disregarded for purposes of determining the Total
Acquisition Loan Commitment.
"
Pro Rata Share of Floor Plan Loan Commitments
" means, at any time, with respect to any Floor Plan Lender, the percentage
corresponding to a fraction, the numerator of which shall be the amount of the
Floor Plan Loan Commitment of such Lender and the denominator of which shall
be the Total Floor Plan Loan Commitment;
provided
, that in the case of
Section 5.20
when a Defaulting Lender shall exist, such Defaulting Lender's Floor Plan Loan
Commitment shall be disregarded for purposes of determining the Total Floor
Plan Loan Commitment.
"
Pro Rata Share of Total Commitments
" means, at any time, with respect to any Lender, the percentage corresponding
to a fraction, the numerator of which is such Lender's Commitment and the
denominator of which shall be the aggregate amount of the Total Commitment;
provided
, that in the case of
Section 5.20
when a Defaulting Lender shall exist, such Defaulting Lender's Commitment
shall be disregarded for purposes of determining the Total Commitment.
"
Program Car
" means any 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. For the avoidance of doubt,
a Program Car is not a New Motor Vehicle.
"
PTE
" means a prohibited transaction class exemption issued by the U.S. Department
of Labor, as any such exemption may be amended from time to time.
- 34 -
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"
Qualified ECP Borrower
" means, in respect of any Indirect Swap Obligation, each Borrower that has
total assets exceeding $10,000,000 at the time the relevant liability or grant
of relevant security interest becomes effective with respect to such Indirect
Swap Obligation or such other person as constitutes an "eligible contract
participant" under the Commodity Exchange Act or any regulations promulgated
thereunder and can cause another person to qualify as an "eligible contract
participant" at such time by entering into a keepwell under Section
1a(18)(A)(v)(II) of the Commodity Exchange Act.
"
Qualified Sale/Leaseback Transaction
" means a sale by any of the Borrowers of real property and related fixtures
and accessories used in the 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 under any of the
provisions of this Agreement.
"
Quoted Rate
" means a rate of interest per annum offered by the Swing Line Bank with
respect to Swing Line Loans and Swing Line Overdraft Loans that shall be equal
to the rate of interest then applicable to Floor Plan Loans whether such Floor
Plan Loans are SOFR Loans or Alternate Base Rate Loans and including as
applicable, the margins for Floor Plan Loans that are SOFR Loans set forth in
Section 5.2(d) hereof and the Applicable Margin for Alternate Base Rate Loans,
provided, however, (i) that any amendment or modification to the Floor Plan
Loan interest rate shall not amend the Quoted Rate unless the Swing Line Bank
so agrees in writing and (ii) the Swing Line Bank and the Borrowers (without
the consent of the other Lenders) may agree in writing to a different Quoted
Rate than as provided here.
"
Re-Allocation Date
" has the meaning specified in
Section 5.18(e)
.
"
Recipient
" means (a) the Agent, (b) the Floor Plan Agent, (c) the Swing Line Bank, (d)
any Lender or (e) any Issuing Bank, as applicable.
"
Redeemable Stock
" of any Person means any Capital Stock of such Person that by its terms (or
by the terms of any security into which it is convertible or for which it is
exchangeable) or otherwise (including upon the occurrence of an event) matures
or is required to be redeemed (other than in exchange for Capital Stock of the
Company that is not Redeemable Stock) or is convertible into or exchangeable
for Indebtedness or is redeemable at the option of the holder thereof (other
than in exchange for Capital Stock of the Company that is not Redeemable
Stock), in whole or in part, at any time prior to the final stated maturity of
the 2020-4.000% Notes. Notwithstanding the preceding sentence, any Capital
Stock that would constitute Redeemable Stock solely because the holders
thereof have the right to require the Company to repurchase such Capital Stock
upon the occurrence of a change of control or an asset sale shall not
constitute Redeemable Stock if the terms of such Capital Stock provide that
the Company may not repurchase or redeem any such Capital Stock pursuant to
such provisions unless such repurchase or redemption complies with Section 4.7
of the 2020-4.000% Indenture.
"
Reference Time
" with respect to any setting of the then-current Benchmark means (a) if such
Benchmark is Daily Simple SOFR, then 3:00 p.m. (New York City time) four
Business Days prior to such setting, (b) if such Benchmark is Term SOFR, 10:00
a.m. (Central time) on the day that is two Business Days before the date of
such setting and (c) if such Benchmark is not Daily Simple SOFR or Term SOFR,
then the time determined by the Agent in accordance with the Benchmark
Replacement Conforming Changes.
"
Refunded Swing Line Loans
" has the meaning specified in
Section 4.5(a)
.
"
Register
" has the meaning specified in
Section 13.3(d)
.
- 35 -
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"
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.
"
Relevant Governmental Body
"
means the Federal Reserve Board and/or the Federal Reserve Bank of New York,
or a committee officially endorsed or convened by the Federal Reserve Board
and/or the Federal Reserve Bank of New York or any successor thereto.
"
Rental Expense
" means, for any period, the aggregate amount of rental expense according to
GAAP with respect to leases of real and personal property (but excluding
obligations in respect of Capital Leases) for such period.
"
Rental Motor Vehicle
" means a Motor Vehicle less than two years old owned by a Floor Plan Borrower
and purchased directly from a Manufacturer as a New Motor Vehicle and used as
a service loaner vehicle or is periodically subject to a rental contract with
customers of the Floor Plan Borrower for loaner or rental periods of up to
thirty (30) consecutive days or is used by dealership personnel in connection
with parts and service operations. For the avoidance of doubt, a Rental Motor
Vehicle is not a New Motor Vehicle.
"
Reportable Event
" means a Reportable Event as referenced in Section 4043(b)(3) of ERISA, other
than an event for which the 30-day notice requirement under ERISA has been
waived in regulations issued by the PBGC.
"
Request for Borrowing
" means (a) as to Floor Plan Loans and Swing Line Loans (i) a notice (which
notice may be delivered in writing by e-mail or facsimile, by telephonic
request promptly confirmed in writing or via the Platform) requesting a Floor
Plan Loan, Swing Line Loan or Swing Line Overdraft Loan in form and substance
reasonably acceptable to the Floor Plan Agent or the Swing Line Bank as
applicable, accompanied by such supporting information as the Floor Plan Agent
or Swing Line Bank may reasonably request, which notice shall be irrevocable
unless the Floor Plan Agent or Swing Line Bank, as applicable otherwise agrees
or (ii) a Draft and includes a Swing Line Overdraft Borrowing Request and (b)
as to Acquisition Loans, a Request for Borrowing substantially in the form
attached hereto as
Exhibit 1.1D
.
"
Required Intercreditor Counterparty
" means, with respect to an Intercreditor Agreement or any joinder thereto
(a)(i) relating to Permitted Dual Subsidiary Indebtedness, each Dual
Subsidiary Lender providing such Permitted Dual Subsidiary Indebtedness or
(ii) with respect to Permitted New Vehicle Floor Plan Indebtedness or
Indebtedness permitted pursuant to
Section 10.1(r)
, the Person providing such Indebtedness, or an agent authorized to act on
behalf of such Person with respect to such Indebtedness, and (b) if reasonably
required by the Agent or if required by the applicable Intercreditor Agreement
or joinder thereto, the Company and/or each Subsidiary that is a borrower or
guarantor of such Permitted Dual Subsidiary Indebtedness, Permitted New
Vehicle Floor Plan Indebtedness or such other Indebtedness.
- 36 -
-------------------------------------------------------------------------------
"
Required Lenders
" means, at any time, Lenders holding more than fifty percent (50%) of the
Total Commitment in Dollars as shown on
Schedule 1.1(a)
or, after all of the Commitments have terminated, more than fifty percent
(50%) of the Indebtedness outstanding under the Loan Documents,
provided
that any Swing Line Loans shall be allocated among the Floor Plan Lenders pro
rata. The Commitments (or, after all of the Commitments have been terminated,
the Indebtedness outstanding under the Loan Documents) of any Defaulting
Lender shall be disregarded in determining Required Lenders at any time.
"
Requirement of Law
" means, as to any Person, any law (statutory or common), treaty, rule or
regulation or determination of any arbitrator or of a Governmental Authority,
in each case applicable to or binding upon such Person or any of its property
or to which such Person or any of its property is subject.
"
Reserve Commitment
" has the meaning specified in
Section 3.4
.
"
Resolution Authority
" means an EEA Resolution Authority or, with respect to any UK Financial
Institution, a UK Resolution Authority.
"
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. Notwithstanding
the foregoing, the repurchase of Indebtedness that is convertible into common
stock shall not be considered a Restricted Payment.
"
Restricted Subsidiary
" means any direct or indirect Subsidiary of the Company organized under the
laws of the United States or any state, territory or other political
subdivision thereof and is directly owned by the Company or another Restricted
Subsidiary, provided that such Subsidiary is not a FSHCO.
"
Retail Loan Guarantees
" means any Guarantee by the Company or any of its Restricted 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.
"
Sanctions
" means sanctions administered or enforced from time to time by the U.S.
government, including those administered by OFAC, the U.S. Department of
State, the United Nations Security Council, the European Union, His Majesty's
Treasury or other relevant sanctions authority.
"
Second Amendment Effective Date
" means December 8, 2023.
"
Secured Parties
" means the Agent, the Floor Plan Agent, any Lender, the Issuing Bank, the
Swing Line Bank and each other Person to whom any of the Obligations are owed.
"
Security Agreement
" means that certain Second Amended and Restated Security Agreement dated as
of the Closing Date, executed by each of the Borrowers in favor of the Agent
for the benefit of the Secured Parties covering the assets of the Borrowers
described therein.
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"
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(a)(iv) to (vii)
and any and all other agreements or instruments now or hereafter executed and
delivered by any Borrower or any other Person in connection with, or as
security for, the payments or performance of any of the Obligations.
"
SOFR Borrowing
" means, as the context may require, a Daily SOFR Borrowing or a Term SOFR
Borrowing.
"
SOFR Loan
" means a Loan that bears interest at a rate based on Daily Simple SOFR or
Term SOFR.
"
SOFR Rate
" means, as the context may require, the Daily Simple SOFR Rate, the Term SOFR
Rate or any other Benchmark based on or determined by reference to SOFR.
"
SONIA
" means, with respect to any applicable determination date, the Sterling
Overnight Index Average Reference Rate published on the fifth Business Day
preceding such date on the applicable Reuters screen page (or such other
commercially available source providing such quotations as may be designated
by the Agent from time to time);
provided
however that if such determination date is not a Business Day, SONIA means
such rate that applied on the first Business Day immediately prior thereto.
"
SONIA Adjustment
" means, with respect to SONIA, 0.0326% per annum.
"
Specified Investments
" means any Investment (as such term is defined in the 2020-4.000% Indenture)
in any Person, other than a Permitted Investment (as such term is defined in
the 2020-4.000% Indenture).
"
Specified Subordinated Debt Prepayments
" means the redemption, repurchase, defeasance, prepayment or other
acquisition or retirement for value, prior to any scheduled maturity,
repayment or sinking fund payment, of any Indebtedness of the Company or a
Restricted Subsidiary that is expressly subordinated or junior in right of
payment to the 2020-4.000% Notes or a subsidiary guarantee thereof, as
appropriate, pursuant to a written agreement to that effect (other than
Indebtedness owed by the Company or any Restricted Subsidiary to another
Restricted Subsidiary or the Company, or any such payment on Indebtedness due
within one year of the date of redemption, repurchase, defeasance, prepayment,
decrease or other acquisition or retirement).
"
Stockholders' Equity
" means, as of any date of determination, the consolidated stockholders'
equity of the Company and its Restricted Subsidiaries determined in accordance
with GAAP, after eliminating all intercompany items and after deducting from
stockholders' equity such portion thereof as is properly attributable to
minority interests in Subsidiaries as reflected in the financial statements
most recently delivered.
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"
Subordinated Indebtedness
" means (i) Indebtedness of any Borrower having maturities and terms, and
which is expressly subordinated to payment of the Notes by written agreement,
and approved (with respect to the maturity and subordination terms only, but
approval of the Agent and Floor Plan Agent shall not be required for the
incurrence of such Indebtedness generally) in writing by the Agent and the
Floor Plan Agent and which, in the aggregate, is less than ten percent (10%)
of Stockholders' Equity (measured as of the date such Indebtedness is incurred
based upon the most recently delivered financial statements) and (ii)
unsecured subordinated Indebtedness of the Company (which may be Guaranteed by
the Restricted Subsidiaries of the Company on an unsecured basis)
provided
that such Indebtedness (x) is expressly subordinated to payment of the Notes
by written agreement that is approved in writing by the Agent (which approval
of subordination terms (including any description of "senior" debt) shall be
required for any such Indebtedness), (y) does not have a maturity before the
Maturity Date as of the date such Indebtedness is incurred, and (z) has terms
that are no more restrictive than the terms of the Loan Documents (taken as a
whole in each case) 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
") or any other Subsidiary of the Parent owns 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.
"
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 sum of (a) $150,000,000 plus (b) the Offset
Amount as of the date of determination;
provided
that, subject to the provisions of
Article IV
, the Swing Line Commitment is a part of the Total Floor Plan Loan Commitment
rather than a separate, independent commitment.
"
Swing Line Exposure
" means, at any time, the aggregate principal amount of all Swing Line Loans
outstanding at such time. The Swing Line Exposure of any Lender shall be equal
to such Lender's Pro Rata Share of Floor Plan Loan Commitments multiplied by
the total Swing Line Exposure.
"
Swing Line Loan
" has the meaning specified in
Section 4.1(a)
.
"
Swing Line Note
" means the Note substantially in the form of
Exhibit 1.1F
, 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(c)(iii)(D)
.
"
Swing Line Overdraft Loan
" has the meaning specified in
Section 2.3(c)(iii)(D)
.
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"
TARGET
T2
" means
Trans-European Automated Real-time
the real time
G
g
ross
S
s
ettlement
Express Transfer payment
system operated by the Eurosystem, or any successor
system.
"
TARGET Day
" means any day on
which the TARGET payment system
T2
is open for the settlement of payments in Euros.
"
Term SOFR
" means the rate per annum determined by the Agent as the forward-looking term
rate based on SOFR.
"
Term SOFR Administrator
" means CME Group Benchmark Administration Ltd. (or a successor administrator
of Term SOFR).
"
Term SOFR Administrator's Website
" means https://www.cmegroup.com/market-data/cme-group-benchmark-administration/
term-sofr, or any successor source for Term SOFR identified as such by the
Term SOFR Administrator from time to time.
"
Term SOFR Base Rate
" means, for the relevant Interest Period, the Term SOFR rate quoted by the
Agent from the Term SOFR Administrator's Website or the applicable Bloomberg
screen (or other commercially available source providing such quotations as
may be selected by the Agent from time to time) (the "Term SOFR
Screen") for such Interest Period, which shall be the Term SOFR rate published
two Business Days before the first day of such Interest Period (such Business
Day, the "Determination Date"). If as of 5:00 p.m. (New York time) on any
Determination Date, the Term SOFR rate has not been published by the Term SOFR
Administrator or on the Term SOFR Screen, then the rate used will be that as
published by the Term SOFR Administrator or on the Term SOFR Screen for the
first preceding Business Day for which such rate was published on such Term
SOFR Screen so long as such first preceding Business Day is not more than
three (3) Business Days prior to such Determination Date.
"
Term SOFR Borrowing
" means a Borrowing that bears interest at the applicable Term SOFR Rate.
"
Term SOFR Rate
" means, for the relevant Interest Period, the greater of (a) the sum of (i)
the Term SOFR Base Rate applicable to such Interest Period
plus
(ii) a spread adjustment in the amount of 0.10% (10 basis points) for an
Interest Period of one-month's duration, and (b) zero percent (0.0%).
"
Term SOFR Loan
" means a Loan that bears interest at the applicable Term SOFR Rate.
"
Term SOFR Screen
" has the meaning provided in the definition of Term SOFR Base Rate.
"
Taxes
" means all present or future taxes, levies, imposts, duties, deductions,
withholdings (including backup withholding), assessments, fees or other
charges imposed by any Governmental Authority, including any interest,
additions to tax or penalties applicable thereto.
"
Third Amendment Closing Date
" means April [____], 2024.
"
Total Acquisition Loan Commitment
" means, at any time, the aggregate amount of the Acquisition Loan Commitments
of all Lenders, as in effect at such time in accordance with this Agreement,
which Commitments, as of the
Third Amendment
Closing Date, equal the Dollar equivalent of $
349,000,000
960,000,000
, whether designated partly in Dollars and partly in one or more Alternative
Currencies. Notwithstanding anything to the contrary contained herein, the
Total Acquisition Loan Commitment shall not at any time exceed forty percent
(40%) of the Total Commitment.
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"
Total Adjusted Leverage Ratio
" means, as of any date of determination, for the Company and its Restricted
Subsidiaries on a consolidated basis, the ratio on such date of (a) Adjusted
Net Indebtedness to (b) the difference between (i) Consolidated Pro Forma
EBITDA plus Pro Forma Rental Expense and (ii) Pro Forma Floor Plan Interest
Expense of the Company and its Restricted Subsidiaries, determined on a
consolidated basis and after having given effect to any proposed Acquisition,
as of such date.
"
Total Commitment
" means, at any time, the aggregate amount of the Commitments of all Lenders,
as in effect at such time in accordance with this Agreement, which
Commitments, as of the
Third Amendment
Closing Date, equal the Dollar equivalent of $
2,000,000,000
2,400,000,000
, whether designated all in Dollars or partly in Dollars and partly in one or
more Alternative Currencies.
"
Total Floor Plan Loan Commitment
" means, at any time, the aggregate amount of the Floor Plan Loan Commitments
of all Lenders, as in effect at such time in accordance with this Agreement,
which Commitments, as of the
Third Amendment
Closing Date, equal $
1,651,000,000
1,440,000,000
.
"
Tranche Notice
" shall have the meaning set forth in Section 2.4 hereof.
"
Type
" means any type of Loan determined with respect to the currency and/or the
interest rate option applicable thereto.
"
UCC
" means the Uniform Commercial Code as adopted and in effect in the State of
Texas from time to time.
"
UETA
" means the Uniform Electronic Transactions Act as in effect in the State of
Texas, as amended from time to time, and any successor statute, and any
regulations promulgated thereunder from time to time.
"
UK Financial Institution
" means any BRRD Undertaking (as such term is defined under the PRA Rulebook
(as amended form time to time) promulgated by the United Kingdom Prudential
Regulation Authority) or any person falling within IFPRU 11.6 of the FCA
Handbook (as amended from time to time) promulgated by the United Kingdom
Financial Conduct Authority, which includes certain credit institutions and
investment firms, and certain affiliates of such credit institutions or
investment firms.
"
UK Resolution Authority
" means the Bank of England or any other public administrative authority
having responsibility for the resolution of any UK Financial Institution.
"
Unadjusted Benchmark Replacement
"
means the applicable Benchmark Replacement excluding the related Benchmark
Replacement Adjustment.
"
Unrestricted Subsidiary
" means any direct or indirect Subsidiary of the Company that is not a
Restricted Subsidiary and any Subsidiary of an Unrestricted Subsidiary.
"
U.S. Bank
" means U.S. Bank National Association, a national banking association.
"
U.S. Person
" means any Person that is a "United States Person" as defined in Section
7701(a)(30) of the Code.
"
U.S. Tax Compliance Certificate
" has the meaning specified in
Section 5.14(f)
.
"
USA PATRIOT Act
" has the meaning specified in
Section 13.15
.
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"
Used Borrowing Base Calculation
" means the calculations required by
Exhibit 9.5(i)
, which calculations shall include a calculation of the Floor Plan Advance
Limit in respect of Used Motor Vehicles and Program Cars.
"
Used Vehicle Borrowing Base
" means the Floor Plan Advance Limit in respect of Used Motor Vehicles and
Program Cars, as set forth in the most recent Used Borrowing Base Calculation
delivered pursuant to
Section 9.5(i)
.
"
Used Motor Vehicle
" means a Motor Vehicle that is in the current or preceding four (4) model
years and that is not a New Motor Vehicle, a Demonstrator or a Rental Motor
Vehicle and has been previously titled.
"
Wholly Owned Subsidiary
" means any Person of which the Company or its other Wholly Owned Subsidiaries
own directly or indirectly one hundred percent (100%) of:
(a) the issued and outstanding shares of stock (except shares required as
directors' qualifying shares and shares constituting less than two percent
(2%) of the issued and outstanding shares);
(b) the capital interest or profits interest of such Person, if it is a
partnership, joint venture or similar entity;
(c) the beneficial interest of such Person, if it is a trust, association
or other unincorporated organization; or
(d) any Foreign Subsidiary that is required by the applicable laws and
regulations of such foreign jurisdiction to be partially owned by the
government of such foreign jurisdiction or individual or corporate citizens of
such foreign jurisdiction, provided that the Company, directly or indirectly,
owns the remaining Equity Interests in such Subsidiary and, by contract or
otherwise, controls the management and business of such Subsidiary and derives
economic benefits of ownership of such Subsidiary to substantially the same
extent as if such Subsidiary were a Wholly-Owned Subsidiary.
"
Withholding Agent
" means any Borrower, the Agent or the Floor Plan Agent.
"
Write-Down and Conversion Powers
" means, (a) with respect to any EEA Resolution Authority, the write-down and
conversion powers of such EEA Resolution Authority from time to time under the
Bail-In Legislation for the applicable EEA Member Country, which write-down
and conversion powers are described in the EU Bail-In Legislation Schedule,
and (b) with respect to the United Kingdom, any powers of the applicable
Resolution Authority under the Bail-In Legislation to cancel, reduce, modify
or change the form of a liability of any UK Financial Institution or any
contract or instrument under which that liability arises, to convert all or
part of that liability into shares, securities or obligations of that person
or any other person, to provide that any such contract or instrument is to
have effect as if a right had been exercised under it or to suspend any
obligation in respect of that liability or any of the powers under that
Bail-In Legislation that are related to or ancillary to any of those powers.
Section 1.2
Accounting Terms
.
(a) Except as otherwise herein specifically provided, each accounting term
used herein shall have the meaning given it under GAAP.
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(b) If at any time any change in GAAP would affect the computation of any
financial ratio or requirement set forth in any Loan Document, and either the
Company or the Required Lenders shall so request, the Agent, the Lenders and
the Company shall negotiate in good faith to amend such ratio or requirement
to preserve the original intent thereof in light of such change in GAAP
(subject to the approval of the Required Lenders);
provided
that, until so amended, (i) such ratio or requirement shall continue to be
computed in accordance with GAAP prior to such change therein and (ii) the
Company shall provide to the Agent and the Lenders such calculations,
financial statements and other documents required under this Agreement or as
reasonably requested hereunder setting forth a reconciliation between
calculations of such ratio or requirement made before and after giving effect
to such change in GAAP. Notwithstanding the foregoing, for purposes of
determining compliance with any covenant (including the computation of any
financial covenant) contained herein, (a) Indebtedness of the Company and its
Restricted Subsidiaries shall be deemed to be carried at 100% of the
outstanding principal amount thereof, and the effects of FASB ASC 825 and FASB
ASC 470-20 on financial liabilities, Interest Expense and Net Income shall be
disregarded and (b) the determination of whether a lease is to be treated an
operating lease or a capital lease shall be made without giving effect to any
change in accounting for leases pursuant to GAAP resulting from the
implementation of FASB ASC 842 (Leases).
Section 1.3
Interpretation
.
(a) In this Agreement, unless a clear contrary intention appears:
(i) the singular number includes the plural number and vice versa;
(ii) reference to any gender includes the other gender;
(iii) the words "herein," "hereof" and "hereunder" and other words of
similar import refer to this Agreement as a whole and not to any particular
Article, Section or other subdivision;
(iv) reference to any Person includes such Person's successors and assigns
but, if applicable, only if such successors and assigns are permitted by this
Agreement, and reference to a Person in a particular capacity excludes such
Person in any other capacity or individually,
provided
that nothing in this clause (iv) is intended to authorize any assignment not
otherwise permitted by this Agreement;
(v) reference to any agreement (including this Agreement), document or
instrument means such agreement, document or instrument as amended,
supplemented or modified and in effect from time to time in accordance with
the terms thereof and, if applicable, the terms hereof, and reference to any
Note includes any note issued pursuant hereto in extension or renewal thereof
and in substitution or replacement therefor;
(vi) unless the context indicates otherwise, reference to any Article,
Section, Schedule or Exhibit means such Article or Section hereof or such
Schedule or Exhibit hereto;
(vii) the word "including" (and with correlative meaning "include") means
including, without limiting the generality of any description preceding such
term;
(viii) with respect to the determination of any period of time, the word
"from" means "from and including" and the word "to" means "to but excluding";
and
(ix) reference to any law means such law as amended, modified, codified or
reenacted, in whole or in part, and in effect from time to time.
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(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.
Section 1.4 Divisions. For all purposes under the Loan Documents, in
connection with any division or plan of division under Delaware law (or any
comparable event under a different jurisdiction's laws): (a) if any asset,
right, obligation or liability of any Person becomes the asset, right,
obligation or liability of a different Person, then it shall be deemed to have
been transferred from the original Person to the subsequent Person, and (b) if
any new Person comes into existence, such new Person shall be deemed to have
been organized on the first date of its existence by the holders of its Equity
Interests at such time.
Section 1.5
SOFR Notification; Alternative Currency Conforming Changes
. The Agent does not warrant or accept responsibility for, and shall not have
any liability with respect to the administration of, submission of or any
other matter related to any SOFR Rate, any component definition thereof or
rates referenced in the definition thereof or any alternative, comparable or
successor rate thereto (including any then-current Benchmark or any Benchmark
Replacement), including whether the composition or characteristics of any such
alternative, comparable or successor rate (including any Benchmark
Replacement) will be similar to, or produce the same value or economic
equivalence of, or have the same volume or liquidity as, such SOFR Rate or any
other Benchmark.
With respect to any Alternative Currency, the Agent, with the consent of the
Borrowers, will have the right to make Alternative Currency Conforming Changes
from time to time and, notwithstanding anything to the contrary herein or in
any other Loan Document, any amendments implementing such Alternative Currency
Conforming Changes will become effective without any further action or consent
of any other party to this Agreement or any other Loan Document;
provided
that, with respect to any such amendment effected, the Agent shall post each
such amendment implementing such Alternative Currency Conforming Changes to
the Borrowers and the Lenders reasonably promptly after such amendment becomes
effective.
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ARTICLE II
THE FLOOR PLAN LOANS
Section 2.1
Floor Plan Loan Commitments
. Subject to the terms and conditions and relying upon the representations and
warranties of the Borrowers herein set forth, each Floor Plan Lender severally
and not jointly agrees to make revolving credit loans (each such loan, a "
Floor Plan Loan
") to any Floor Plan Borrower from time to time on any Business Day during the
period from the Closing Date to the Maturity Date in an aggregate amount not
to exceed at any time such Lender's Pro Rata Share of Floor Plan Loan
Commitments;
provided
,
however
, that, subject to
Section 2.3(c)(iii)
, 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 and Swing Line Loans shall not at any time exceed the Total Floor Plan
Loan Commitment and,
further
provided
that the aggregate principal amount of all outstanding Floor Plan Loans, Swing
Line Loans, Acquisition Loans and Letter of Credit Obligations shall not at
any time exceed the Total Commitment. 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
. The failure of any Floor Plan Lender to make any Floor Plan Loan shall not
relieve any other Floor Plan Lender of its obligations to lend hereunder.
Section 2.2
Floor Plan Loans
.
(a) Each Floor Plan Loan Borrowing may be in any amount.
(b) Each Floor Plan Loan Borrowing shall be a SOFR Borrowing (unless (i)
the Alternate Base Rate is in effect in accordance with Article V hereof, in
which case the Borrowing shall be made as an ABR Borrowing or (ii) initially
resulting from a Draft in which case it shall be made as a Quoted Rate
Borrowing). Each Floor Plan Lender may fulfill its obligation to make Floor
Plan Loans with respect to any SOFR Loan by causing, at its option, any
domestic or foreign branch or Affiliate of such Floor Plan Lender 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) A Floor Plan Borrower shall not be entitled to request a Floor Plan
Borrowing hereunder until it (i) has executed and delivered to the Floor Plan
Lenders, as aforesaid, the Notes and to the Swing Line Bank, a Swing Line
Note, or has joined such Notes by execution and delivery of an Addendum, (ii)
has become a party to this Agreement by execution and delivery of this
Agreement or 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 Lenders hereunder and has otherwise complied with the provisions of
Section 9.16(b)
.
(d) A Floor Plan Borrower that becomes a Dual Subsidiary shall not be
entitled to request a New Vehicle Floor Plan Loan or a New Vehicle Swing Line
Loan from and after the Dual Subsidiary Financing Commencement Date with
respect to such Floor Plan Borrower unless and until such time as such Floor
Plan Borrower ceases to be a Dual Subsidiary (as notified in writing to the
Agent).
Section 2.3
Floor Plan Borrowing Procedure
.
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(a) Any Floor Plan Borrower may request a Floor Plan Loan by either
delivery of a Request for Borrowing (that is not a Draft) to the Floor Plan
Agent no later than 10:00 a.m., Houston, Texas time, one (1) Business Day
prior to the Borrowing Date or by delivery of a Draft to the Floor Plan Agent
in accordance with the terms of the applicable Drafting Agreement. Delivery of
a Request for Borrowing by a Floor Plan Borrower (other than a Draft) shall be
deemed a certification that the conditions precedent set forth in
Section 8.3
hereof have been satisfied as of such proposed Borrowing Date.
(b) The aggregate principal amounts requested from time to time under
Section 2.3(a)
shall not exceed the Floor Plan Advance Limit for applicable type of Motor
Vehicles being financed.
(c) Notwithstanding the foregoing,
(i) Intentionally omitted;
(ii) if, in the case of a Request for Borrowing which is not a Draft, on
any day the conditions precedent set forth in
Section 8.3
have been satisfied or, in the case of a Request for Borrowing which is a
Draft, on any day: (A) the sum of (x) the aggregate principal amount of a
Request for Borrowing of a Floor Plan Loan,
and
(y) the aggregate principal amount of all other Floor Plan Loans then
outstanding exceeds the Floor Plan Tranche Amount and (B) such Request for
Borrowing is less than the available Swing Line Commitment, then that excess
portion of the Borrowing shall constitute a Swing Line Loan and shall be
disbursed in accordance with the provisions of
Article IV
; and
(iii) if a Draft is presented for payment, the payment of which would cause
(x) the aggregate principal amount of all Floor Plan Loans then outstanding,
plus (y) the aggregate principal amount of all Swing Line Loans then
outstanding, plus (z) the aggregate principal amount of all Requests for
Borrowings of Floor Plan Loans outstanding as of such day to exceed the
aggregate Floor Plan Loan Commitments as of such day, then, in such event:
(A) the Company may either immediately reduce any pending Request for
Borrowing or make a payment of principal on the outstanding Floor Plan Loans
and/or Swing Line Loans in an amount which would prevent the aggregate amounts
described in (x), (y) and (z) of this clause (iii) from exceeding the
aggregate Floor Plan Loan Commitments; or
(B) the Company may request an increase in the aggregate Floor Plan Loan
Commitments by converting a portion of the unused Acquisition Loan Commitments
pursuant to
Section 5.5(b)
or by reversing a prior conversion of the Floor Plan Loan Commitments pursuant
to
Section 5.5(c)
, and, in either case, such Request for Borrowing shall be funded to the
extent of such increase; or
(C) if the Company does not elect to act under clause (A) or (B) above and
if there is a Reserve Commitment available under
Section 3.4
, then the aggregate Floor Plan Loan Commitments shall be increased by the
amount of such Reserve Commitment, and such Draft shall be funded to the
extent of such increase; or
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(D) if there is no Reserve Commitment available, such Draft 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
.
(iv) if a Draft has been submitted it shall constitute a Request for
Borrowing and shall be funded as a Floor Plan Loan, a Swing Line Loan or a
Swing Line Overdraft Loan as described above, regardless of whether any
conditions or requirements to the making of a Loan under this Agreement,
including but not limited to the requirements set forth in Article VIII
hereof, have been satisfied unless the Floor Plan Agent and/or Swing Line Bank
have suspended or terminated the Drafting Agreement to which such Draft
relates in accordance with this Agreement.
(v) each Floor Plan Lender shall be obligated to fund Floor Plan Loans
resulting from the presentation of Drafts in the same manner as any other
Request for Borrowing under this Article II regardless of whether any
conditions or requirements to the making of a Floor Plan Loan under this
Agreement, including but not limited to the requirements set forth in Article
VIII hereof, have been satisfied except as to that portion of a Floor Plan
Loan resulting from a Draft issued under a Drafting Agreement which was
previously suspended or terminated in accordance with this Agreement;
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 Floor
Plan Lender shall be deemed to and unconditionally agrees to have purchased
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).
(d) Each of the Floor Plan Borrowers hereby authorizes the Floor Plan Agent
to disburse Floor Plan Loans and the Swing Line Bank to disburse Swing Line
Loans and Swing Line Overdraft Loans pursuant to Requests for Borrowing
received by the Floor Plan Agent and/or the Swing Line Bank as set forth
above, including but not limited to Requests for Borrowing received via
telephone, the Platform or a Draft. 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 from Requests for Borrowing
received by the Floor Plan Agent or the Swing Line Bank via the telephone, the
Platform or a Draft.
Section 2.4
Notice of Floor Plan Loans
.
(a) On or before 10:00 a.m. Houston, Texas time, two (2) Business Days
before each Floor Plan Adjustment Date, the Company shall provide an
irrevocable written notice (which may be made by e-mail or facsimile) (each a "
Tranche Notice
") to the Agent designating the amount (the "
Floor Plan Tranche Amount
") of Floor Plan Loans which will be outstanding commencing on the Floor Plan
Adjustment Date immediately following such Tranche Notice until the next
succeeding Floor Plan Adjustment Date. If, for any reason, the Company does
not deliver the Tranche Notice as herein provided, the Company shall be deemed
to have requested that on such Floor Plan Adjustment Date the Floor Plan
Tranche Amount be equal to the Floor Plan Tranche Amount as of the immediately
preceding Floor Plan Adjustment Date.
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(b) Upon receipt of such notice from the Company, the Agent shall provide
prompt written notice (which may be made by e-mail or facsimile) to the Floor
Plan Lenders advising them (i) that the amount of the Floor Plan Tranche
Amount is greater than the amount of the Floor Plan Tranche Amount as of the
immediately preceding Floor Plan Adjustment Date and, with respect to each
Floor Plan Lender, the amount of additional Floor Plan Loans to be advanced by
such Floor Plan Lender, (ii) that the amount of the Floor Plan Tranche Amount
is less than the amount of the Floor Plan Tranche Amount as of the immediately
preceding Floor Plan Adjustment Date and, with respect to each Floor Plan
Lender, the amount of such repayment to be made by the Floor Plan Borrowers to
such Floor Plan Lender, or (iii) that there is no change in the amount of the
Floor Plan Tranche Amount since the immediately preceding Floor Plan
Adjustment Date. On any Floor Plan Adjustment Date, upon the prior request of
the Agent, the Floor Plan Agent shall provide written notice (which may be
made by e-mail or facsimile) to the Agent of the amount outstanding on such
Floor Plan Adjustment Date of (A) Floor Plan Loans, (B) Swing Line Loans and
Swing Line Overdraft Loans, if any, (C) requested but not yet funded Floor
Plan Loans as of 10:00 a.m., Houston, Texas time on such date and (D) the
Offset Amount, if any.
(c) Each Floor Plan Lender shall, upon request from the Agent (which the
Agent shall make at the request of the Floor Plan 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 (i) the same day as the proposed date for such
Floor Plan Loan Borrowing (if not a Floor Plan Adjustment Date) or (ii) on
each Floor Plan Adjustment Date, as applicable, not later than 1:00 p.m.,
Houston, Texas time. Subject to satisfaction of the terms, provisions and
conditions set forth in
Section 2.3
and
Section 4.3
, the Agent shall promptly and in any event on the same day, credit the
amounts so received to the account of the Floor Plan Agent, or, if a Floor
Plan Loan Borrowing shall not occur on such date because any condition
precedent herein specified shall not have been met, return the amounts so
received to the respective Floor Plan Lenders or to the extent
Section 2.10
otherwise applies, credit the account of the Floor Plan Agent. Upon receipt of
such funds the Floor Plan Agent shall promptly and in any event on the same
day, credit the amount so received to the account of the applicable Floor Plan
Borrower.
Section 2.5
Payments; Application of Payments
.
(a) Each Floor Plan Borrower shall, on the Curtailment Date of a Motor
Vehicle financed hereunder, pay in full the Floor Plan Advance Limit with
respect to such Motor Vehicle.
(b) 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 immediately upon the earliest to occur of: (i) with respect
to Motor Vehicles for which cash has been received upon the sale thereof,
within five (5) calendar days of receipt of cash, (ii) with respect to Sale
Dated Motor Vehicles, within fifteen (15) calendar days of the date of such
Motor Vehicle was sold and (iii) with respect to Fleet Motor Vehicles, within
thirty (30) calendar days of the date of sale.
(c) Payments required to be made by any Floor Plan Borrower as set forth in
Section 2.5(a), Section 2.5(b) and Section 2.5(d) shall be applied in the
following order: (i) first, to the outstanding principal balance of Swing Line
Overdraft Loans, (ii) second, to the outstanding principal balance of Swing
Line Loans, (iii) third, only if no Swing Line Overdraft Loans or Swing Line
Loans are then outstanding, to the outstanding principal balance of Floor Plan
Loans that were funded from the Reserve Commitment, and (iv) finally, only if
no Swing Line Overdraft Loans or Swing Line Loans are then outstanding and
none of the outstanding principal balance of the Floor Plan Loans has been
funded from the Reserve Commitment, to the remaining principal balance of the
Floor Plan Loans.
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(d) 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 (15
th
) 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 financed
hereunder, 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 a Floor Plan Event of
Default has occurred and is continuing. After the occurrence and during the
continuance of a Floor Plan Event of Default, the Floor Plan Agent may request
and the Floor Plan Borrowers shall deliver or cause to be delivered within
three (3) Business Days of such request, all such original Manufacturer's
invoices and title documents being maintained by the Floor Plan Borrowers at
the time of such request and, immediately, all such original Manufacturer's
invoices and title documents that later come into the possession of the Floor
Plan Borrowers, to the Floor Plan Agent, and the Floor Plan Agent shall retain
or hold all such original Manufacturer's invoices and title documents so
received. Thereafter, for so long as such Floor Plan Event of Default shall be
continuing, all such original Manufacturer's Certificates and title documents
shall remain in the Floor Plan Agent's possession or with the applicable Floor
Plan Borrowers, as the Floor Plan Agent may elect, 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 has been paid in full;
provided
that, upon the occurrence of a Floor Plan 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, Swing Line Loans and/or 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 Floor Plan 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 until such time as the Obligations have
been paid in full in cash, all outstanding Letters of Credit have been cash
collateralized in accordance with this Agreement, this Agreement has been
terminated and all commitments to extend credit under this Agreement, any of
the other Loan Documents and any Drafting Agreement have been terminated. 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.
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Section 2.8
Issuance of Drafting Agreements
. Subject to the terms and conditions of this Agreement, the Floor Plan Agent
shall, at any time and from time to time from and after the Closing Date until
thirty (30) Business Days prior to the Maturity Date, upon the written request
of the Company or the applicable Floor Plan Borrower, 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:
(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 conditions precedent set forth in
Section 8.3
are satisfied;
(c) no order, judgment or decree of any Governmental Authority 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
(d) the Floor Plan Agent has not received written notice from any Lender,
the Agent or any Floor Plan Borrower, on or prior to the Business Day
immediately prior to the requested date of issuance or entry into such
Drafting Agreement, that (i) a Lender is a Defaulting Lender, (ii) one or more
of the applicable conditions contained in
Article VIII
or in this
Section 2.9
has not been satisfied or (iii) that a Default (relating to a Floor Plan Event
of Default) or Floor Plan Event of Default has occurred and is continuing.
Each application for a Drafting Agreement issued by a Floor Plan Borrower
hereunder shall constitute certification by each of the Company and the
applicable Floor Plan Borrower of the matters set forth in
Section 2.9(a)
and
(b)
, 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 it has obtained
actual knowledge (as provided in
Section 12.15
) that a Floor Plan Event of Default has occurred and is continuing), each
Floor Plan Lender, subject to
Section 4.6
(relating to a Swing Line Overdraft Loan), hereby irrevocably and
unconditionally agrees to, and does hereby, 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 Floor Plan Lender and (ii) the amount of each Draft
presented by a Manufacturer.
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Notwithstanding the foregoing, 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, and none of the Borrowers shall be entitled
to borrow under any Drafting Agreement after the date that is ten (10) days
prior to the Maturity Date. Provided, however, the immediately foregoing
sentence is intended only as a limitation to the Borrowers' ability to borrow
under Drafting Agreements and not as an enlargement of the Floor Plan Agent's
obligations hereunder.
Section 2.10
Drafts Under Manufacturers Drafting Letters
.
(a) The Floor Plan Agent and/or the Swing Line Bank may take all actions
reasonably necessary to suspend and/or terminate Drafts in accordance with
this Agreement, including but not limited to
Section 11.4
.
(b) If at any time (i) 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) subject to
Section 2.3(c)(iii)
, the amount of such Draft would cause the aggregate amount of Floor Plan
Loans to exceed the Total Floor Plan Loan Commitment, or (iii) a Default
(relating to a Floor Plan Event of Default) or a Floor Plan Event of Default
has occurred and is continuing, then the funding of a Draft shall not
constitute a waiver of any such condition, Default or Event of Default or
otherwise in any manner whatsoever affect the rights and remedies available to
the Floor Plan Agent, the Agent, the Swing Line Bank or any of the Floor Plan
Lenders or the Lenders hereunder. In any such event, the Floor Plan Borrowers
shall remain obligated to pay the amount of any Draft forthwith as set forth
herein and shall have all other duties and obligations applicable to the Floor
Plan Borrowers under this Agreement. Notwithstanding anything to the contrary
contained herein, each of the Floor Plan Borrowers shall bear all risk of loss
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) Notwithstanding the amount of the aggregate Floor Plan Loan Commitments
in effect from time to time, except with respect to the notices terminating or
suspending drafting privileges to be given pursuant
Section 11.1
or
Section 11.4
or any other notices given by the Floor Plan Agent and/or the Swing Line Bank
in response to the written direction of the Required Lenders, the Floor Plan
Agent and/or the Swing Line Bank 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
Total 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 and the Swing Line Bank 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
and/or the Swing Line Bank, acting in its discretion and not at the direction
or with the concurrence of the Required Lenders, to terminate or suspend
drafting privileges of any Manufacturer or otherwise exercise any right or
remedy shall be for the sole benefit and protection of the Floor Plan Agent
and the Swing Line Bank, and the Floor Plan Agent and the Swing Line Bank
shall not owe any duty to any of the other Lenders with respect to such rights
or remedies or be required to exercise such rights or remedies to protect any
of the other Lenders.
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Section 2.11
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, the Swing Line
Bank and the Lenders for Drafts presented by a Manufacturer under a Drafting
Agreement and to repay any Swing Line Loans, Floor Plan Loans or the Swing
Line Overdraft Loans, as the case may be, funded to pay a Draft shall be
unconditional and irrevocable. Such obligations 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 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; (e) any loss or delay in the
transmission or otherwise of any document required in order to make a Draft
under any Drafting Agreement; (f) any payment by the Floor Plan Agent or the
Swing Line Bank under any Drafting Agreement against presentation of a draft
or certificate that does not strictly comply with the terms of any Drafting
Agreement; (g) any payment made by the Floor Plan Agent or the Swing Line Bank
under any Drafting Agreement to any trustee in bankruptcy, debtor in
possession, assignee for the benefit of creditors, liquidator, receiver or
other representative of a successor to any beneficiary or any transferee of
any Drafting Agreement, including any arising in connection with any
Insolvency Proceeding; (h) any exchange, release or non-perfection of any
Collateral, or any release or amendment or waiver of or consent to departure
from all or any of the obligations of any Borrower in respect of any Drafting
Agreement; or (i) 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, as applicable.
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ARTICLE III
ACQUISITION LOANS
Section 3.1
Acquisition Loan Commitments
.
(a) Subject to the terms and conditions and relying upon the representations
and warranties of the Company herein set forth, each Acquisition Loan Lender
severally and not jointly agrees 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 Lender's pro rata share of the Acquisition Loan Advance Limit;
provided
,
however
, that, after giving effect to any Acquisition Loan Borrowing, the aggregate
amount of all outstanding Acquisition Loans and all outstanding Letter of
Credit Obligations shall not at any time exceed the Acquisition Loan Advance
Limit. Subject to the other terms and conditions hereof, the Company may
borrow, prepay and reborrow Acquisition Loans under this
Section 3.1(a)
.
(b) Notwithstanding paragraph (a) above, Acquisition Loans may, at the
option of the Company, be requested in or converted into one of the
Alternative Currencies rather than Dollars in an amount up to the Equivalent
Amount of not more than the lesser of (i) the then available amount under the
Acquisition Loan Advance Limit and (ii) $150,000,000 (the "
Alternative Currency Sublimit
") calculated as of the date such Loans are requested. If so requested, only
those Acquisition Loan Lenders designated on
Schedule 1.1(a)
as having Acquisition Loan Commitments in an Alternative Currency shall
participate in making such Loans, notwithstanding that this results in such
Lenders having amounts owing by the Company on a non pro rata basis. Following
the advance of an Acquisition Loan in an Alternative Currency, the provisions
of
Section 3.2(c)(ii)
shall apply to subsequent Borrowings requested under the Acquisition Loan.
Section 3.2
Acquisition Loans
.
(a) Each Acquisition Loan Borrowing shall be in the minimum aggregate
principal amount of $1,000,000 or Equivalent Amount in an Alternative Currency
(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
thereof, and shall consist of Acquisition Loans of the same Type made by the
applicable Acquisition Loan Lenders in accordance with their respective Pro
Rata Share of Acquisition Loan Commitments except as otherwise set forth in
Section 3.1(b)
, above;
provided
,
however
, that the failure of any Lender to make any Acquisition Loan shall not
relieve any other Lender of its obligation to lend hereunder.
(b) Each Acquisition Loan Borrowing requested in Dollars shall be an ABR
Borrowing or a SOFR Borrowing, and each Acquisition Loan Borrowing requested
in Euros or Pounds Sterling shall be a Eurocurrency Borrowing or Pounds
Sterling Borrowing, respectively, as the Company may request, in a Request for
Borrowing delivered to the Agent in accordance with
Section 3.3
. Each Acquisition Loan Lender may fulfill its Acquisition Loan Commitment
with respect to any SOFR, Eurocurrency or Pounds Sterling Loan by causing, at
its option, any domestic or foreign branch or Affiliate of such Lender to make
such Loan, provided that the exercise of such option shall not affect the
obligation of the Company to repay such Loan in accordance with the terms
hereof. Subject to the provisions of
Section 3.3(b)
and
Section 5.9
, Acquisition Loan Borrowings of more than one Type may be outstanding at the
same time.
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(c) (i) Each applicable Acquisition Loan Lender shall make Acquisition
Loans equal to its then Pro Rata Share of the Acquisition Loan Commitments, if
any, by paying the amount required to the Agent in at its office in
Minneapolis, Minnesota in U.S. Dollars or, if in an Alternative Currency, to
the Alternative Currency Agent in Minneapolis, Minnesota and in immediately
available funds not later than 1:00 p.m., Houston, Texas time, or Minneapolis,
Minnesota time, as applicable, on the proposed Borrowing Date and, subject to
satisfaction of the conditions set forth in
Article VIII
, the Agent or the Alternative Currency 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 said 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 Lenders.
(ii) If a Borrowing under the Acquisition Loan is made in an Alternative
Currency, subsequent Acquisition Borrowings requested in Dollars, or continued
as, or converted into, Acquisition Borrowings in Dollars, shall be advanced
first by Acquisition Loan Lenders that do not have Acquisition Loan
Commitments in an Alternative Currency until such time as the amount owing to
each of the Acquisition Loan Lenders under the Acquisition Loan is equal to
its Pro Rata Share of Acquisition Loan Commitments.
Section 3.3
Acquisition Loan Borrowing Procedure
.
(a) In order to obtain an Acquisition Loan, the Company shall make an
irrevocable written request (including via facsimile or email) therefor (or,
with respect to ABR and SOFR Borrowings only, irrevocable telephone notice
thereof, confirmed as soon as practicable by written request) in the form of a
Request for Borrowing (i) in the case of an ABR Borrowing, to the Agent not
later than 11:00 a.m., Houston, Texas time, on the Borrowing Date, (ii) in the
case of a SOFR Borrowing, to the Agent not later than 11:00 a.m., Houston,
Texas time, three (3) Business Days before the Borrowing Date, and (iii) in
the case of any Borrowing in an Alternative Currency, to the Alternative
Currency Agent not later than 11:00 a.m., Minneapolis, Minnesota time, three
(3) Business Days before the Borrowing Date. Each Request for Borrowing shall
be irrevocable and specify (1) whether the Loan then being requested is to be
an ABR, Eurocurrency, Pounds Sterling, Daily SOFR or Term SOFR Borrowing, (2)
the Borrowing Date (which shall be a Business Day), (3) the aggregate amount
thereof and (4) if a Term SOFR or Eurocurrency Loan is being requested, the
Interest Period or Interest Periods with respect thereto. If no election as to
the Type of Acquisition Loan Borrowing is specified for Dollar denominated
Loans, such Borrowing shall be an ABR Borrowing. If, with respect to Term SOFR
or Eurocurrency Loans, no Interest Period is specified, the Company shall be
deemed to have selected an Interest Period of one (1) month's duration. The
Agent shall promptly advise the Lenders of any Request for Borrowing given by
the Company pursuant to this
Section 3.3
and of each Lender's portion of the requested Acquisition Loan Borrowing.
(b) No more than eight (8) Acquisition Borrowings may be outstanding at any
time. For purposes of the foregoing, Term SOFR or Eurocurrency Borrowings
comprised of Acquisition Loans having different Interest Periods (if
applicable), regardless of whether they commence on the same date, shall be
considered separate Borrowings.
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Section 3.4
Reserve Commitment; Reduction of Acquisition Loan Advance Limit
. 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-seven and one-half percent (97.5%)
of the Total Floor Plan Loan Commitment as of such date, then (i) a portion of
the Total Acquisition Loan Commitment (the "
Reserve Commitment
") in an amount equal to the lesser of (y) $5,000,000 or (z) the entire
remaining unused portion of the Total Acquisition Loan Commitment as of such
date, shall be reserved and shall no longer be available for funding
Acquisition Loans, and (ii) the Acquisition Loan Advance Limit shall be
reduced by the amount by which the (x) Floor Plan Loans, plus (y) Swing Line
Loans plus (z) Requests for Floor Plan Loan Borrowings exceeds ninety-seven
and one-half percent (97.5%) of the Total Floor Plan Loan Commitment until the
next Business Day on which such condition no longer exists.
Section 3.5
Monthly Calculation of Outstanding Loans in Alternative Currencies
. On the first Business Day of each month, the Agent shall calculate the
Equivalent Amount of the then aggregate principal amount of all Loans in
Alternative Currencies for the purposes of determining if (a) the Company has
availability under (i) the Alternative Currency Sublimit to request additional
Loans in or conversions of existing Loans into one or more of the Alternative
Currencies during such month and (ii) the Acquisition Loan Advance Limit to
request additional Acquisition Loans, and (b) any prepayments of the
Obligations are due and payable by the Borrowers during such month pursuant to
Section 5.7(d)
as a result of such calculation of the Equivalent Amount of the then aggregate
principal amount of all Loans in Alternative Currencies.
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 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. After giving effect to all Borrowings of Swing Line Loans
and 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 Total Floor Plan Loan
Commitment.
(b) All Swing Line Loans and all 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.
In no event whatsoever shall any outstanding Swing Line Loan be deemed to
reduce, modify or affect any Lender's obligation to make Floor Plan Loans
based upon its Pro Rata Share of Floor Plan Loan Commitments.
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(c) Immediately upon the making of a Swing Line Loan by the Swing Line
Bank, the Swing Line Bank shall be deemed to have sold and transferred to each
Lender and each Lender shall be deemed to have purchased and received from the
Swing Line Bank, without any further action by any party, an undivided
participating interest in each Swing Line Loan in an amount equal to such
Lender's Pro Rata Share; provided, however, that (a) no Lender shall be
required to fund its participation in any Swing Line Loan except as set forth
in
Section 4.5
, and (b) no Lender shall be entitled to share in any payments of principal or
interest in respect of its participation except, with respect to any
participation funded by such Lender, as set forth herein. Such participation
shall be subject to the terms and conditions of this Agreement
Section 4.2
Accrual of Interest; Margin Adjustments
. Each Swing Line Loan and each Swing Line Overdraft Loan shall, from time to
time after the date of such Loan, bear interest as provided in
Section 5.2(e)
. The amount and date of each such Swing Line Loan and each such Swing Line
Overdraft Loan, the Quoted Rate applicable thereto, its Interest Period (if
applicable), 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
. On any day that a Request for Borrowing (including but not limited to a
Request for Borrowing made in the form of a Draft) constitutes a Request for
Borrowing of a Swing Line Loan pursuant to
Section 2.3(c)(ii)
, the applicable Floor Plan Borrower shall be deemed to have delivered to
Swing Line Bank a Request for Borrowing for a Swing Line Loan in connection
therewith.
Section 4.4
Disbursement of Swing Line Loans
. Subject to receipt of a Request for Borrowing of a Swing Line Loan and to
the other terms and conditions of this Agreement, the Swing Line Bank shall
make available to 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 via the funding of Drafts (if
such Request for Borrowing takes the form of a Draft) in accordance with the
terms of the applicable Drafting Agreements.
Section 4.5
Refunding of or Participation Interest in Swing Line Loans
.
(a) (i) Upon the request of the Swing Line Bank, the Agent from time to
time shall, on behalf of the Floor Plan Borrowers (and each Floor Plan
Borrower hereby irrevocably authorizes the Agent to so act on its behalf)
request each Floor Plan Lender (including Swing Line Bank in its capacity as a
Floor Plan Lender) to make a Floor Plan Loan to the Floor Plan Borrowers,
which shall be applied to repay all or a portion of the outstanding principal
balance of the Swing Line Loans (each such Floor Plan Loan, a "
Refunding Floor Plan Loan
"), in an amount equal to that Lender's Pro Rata Share of all or a portion of
the then outstanding principal balance of the Swing Line Loans.
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(ii) Without limiting the foregoing, each Floor Plan Lender agrees that the
Agent may and shall, at the request of the Swing Line Bank, request the Floor
Plan Lenders to make Floor Plan Loans at any time if (A) a Default or Event of
Default has occurred and is continuing, or (B) in the judgment of Swing Line
Bank, taking into account the outstanding principal balance of the Swing Line
Loans, the anticipated usage of the Swing Line Loans, such Refunding Floor
Plan Loans are reasonably necessary to ensure that the outstanding principal
balance of the Swing Line Loans will not at any time exceed the Swing Line
Commitment (it being understood that in order to attain such objective, Swing
Line Bank may request refunding of the Swing Line Loans even though the
principal balance of the Swing Line Loans at the time of such request is less
than the Swing Line Commitment).
(iii) If the Agent makes a request for funding hereunder by 1:00 pm
Minneapolis, Minnesota time on any Business Day, the Floor Plan Lenders will
deliver the required amount to the Agent no later than 1:00 pm Minneapolis,
Minnesota time on the next Business Day after such request. The proceeds of
all Refunding Floor Plan Loans shall be paid by the Agent to the Swing Line
Bank in repayment of the outstanding principal balance of the applicable Swing
Line Loans.
(b) In addition to the right of the Swing Line Bank to request refunding of
the Swing Line Loans as set forth above, upon the request of the Swing Line
Bank, the Agent shall request each Floor Plan Lender (including Swing Line
Bank in its capacity as a Lender) to fund its participation in the Swing Line
Loans by paying to the Agent, for the account of the Swing Line Bank, its Pro
Rata Share of the principal amount of the Swing Line Loans. If the Agent makes
such request by 1:00 pm Minneapolis, Minnesota time on any Business Day, the
Floor Plan Lenders will deliver such amount to the Agent no later than 1:00 pm
Minneapolis, Minnesota time on the next Business Day after such request. If
any payment paid to any Floor Plan Lender with respect to its participating
interest in any Swing Line Loan is thereafter recovered from or must be
returned or paid over by Swing Line Bank for any reason, such Floor Plan
Lender will pay to the Agent for the account of the Swing Line Bank, such
Floor Plan Lender's Pro Rata Share of such amount and of any interest and
other amounts paid or payable by the Swing Line Bank with respect to such
amount. The Swing Line Bank and the Agent agree not to request any funding of
the Floor Plan Lender's participations in the Swing Line Loans under this
Section at any time that such participations may be legally repaid using
advances of the Floor Plan Loans.
(c) All payments of principal and interest on the Swing Line Loans shall be
paid by the Agent solely to the Swing Line Bank except that (i) payments made
in respect of a participation in a Swing Line Loan which is funded by a Floor
Plan Lender shall be made to such Lender (including Swing Line Bank in its
capacity as Lender) and (ii) each Lender shall be entitled to receive its Pro
Rata Share of payments of (A) principal on such Swing Line Loans and (B)
interest on such Swing Line Loans only for the period following the date such
participation is funded.
(d) The obligation of each Floor Plan Lender to make Floor Plan Loans to
repay Swing Line Loans pursuant as set forth in clause (a) above or to fund
its participation interests in Swing Line Loans pursuant to clause (b) above
shall be absolute and unconditional and shall not be affected by the
occurrence of a Default or Event of Default, the fact that any one or more of
the conditions in Article VIII is not satisfied, the termination of the
availability of Loans, the fact that such Floor Plan Loan is made after the
Maturity Date to fund a Draft or to refinance Swing Line Loans made prior to
the Maturity Date, any defense, setoff, counterclaim or claim for recoupment
of any Lender against Floor Plan Agent or Swing Line Bank or any other
circumstance, whether or not similar to the foregoing. Notwithstanding the
foregoing, the Floor Plan Lenders shall not be required to refinance or fund
any participation in any Swing Line Overdraft Loan.
Section 4.6
Swing Line Overdraft Loans
.
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(a) On any day that a Request for Borrowing constitutes a Swing Line
Overdraft Borrowing Request pursuant to
Section 2.3(c)(iii)
, the applicable Floor Plan Borrower shall be deemed to have delivered a Swing
Line Overdraft Borrowing Request.
(b) 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.
Swing Line Overdraft Loans shall bear interest in accordance with
Section 5.2(e)
. At any time a Swing Line Overdraft Loan is outstanding, all funds received
from any source (other than deposits already in the Cash Collateral Account)
in respect of this Agreement shall be applied first to the payment in full of
the Swing Line Overdraft Loans; and the Floor Plan Agent, the Agent and the
Lenders, 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 (including any
prepayments) 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.
ARTICLE V
ALL LOANS
Section 5.1
Notes; Advancement and Repayment of Loans
.
(a) All Loans made hereunder may be advanced by each Lender, at its option,
from its primary place of business or its Applicable Lending Office, which
locations may change from time to time (subject to the provisions of
Section 5.14
) during the term hereof, and shall be evidenced by the Notes and payable as
therein provided, which Notes shall be dated the Closing Date, and shall be in
an aggregate principal amount equal to the Total Commitment on such date. The
outstanding principal balance of such Loans and all interest thereon shall be
due and payable in the currency in which said Loan was made in accordance with
the terms and provisions of this Agreement and on the Maturity Date. Each Loan
shall bear interest from its date on the outstanding principal balance thereof
as provided in
Section 5.2
.
(b) Each Lender or the Agent, on its behalf, and the Swing Line Bank is
hereby authorized by each Borrower to endorse on a schedule attached to the
Notes delivered to it (or a computer generated supplement thereto, which
supplement shall be deemed to be a part thereof), or otherwise record in such
Lender's or Agent's, as the case may be, internal records, an appropriate
notation evidencing the date and amount of each Loan, as well as the date and
amount of each payment and prepayment with respect thereto;
provided
, that the failure of any Lender or the Agent or the Swing Line Bank to make
such a notation or any error in such a notation shall not affect the
Obligations of any Borrower hereunder or under the Notes.
Section 5.2
Interest on Loans; Offset Provisions; Interest Generally
.
(a)
Alternate Base Rate Loans
. 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
Alternate Base Rate Loans, and each change in the Applicable Margin shall
apply to all such Loans that are outstanding during the period commencing on
the effective date of such change and ending on the date immediately preceding
the effective date of the next such change, and (ii) the Highest Lawful Rate
(computed on the basis of the actual number of days elapsed over a year of 365
or 366 days).
(b) [Reserved]
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(c)
SOFR, Eurocurrency and Pounds Sterling Loans that are Acquisition Loans
. Subject to the provisions of
Section 5.3
, each SOFR, Eurocurrency or Pounds Sterling Loan that 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 for Eurocurrency and SOFR Loans
and 365 days for Pounds Sterling Loans) equal to the lesser of (i) the SOFR
Rate, Eurocurrency Rate or Pounds Sterling Rate, respectively, in effect for
such Loan plus the Applicable Margin for such Loans, and each change in the
Applicable Margin shall apply to all such Loans that are outstanding during
the period commencing on the effective date of such change and ending on the
date immediately preceding the effective date of the next such change, even if
the effective date occurs in the middle of an Interest Period (if applicable)
and (ii) the Highest Lawful Rate.
(d)
Floor Plan Loans
. Subject to the provisions of paragraph (f) below and the provisions of
Section 5.3
, each SOFR Loan that 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 (i) the SOFR Rate in effect for such Loan
plus: (A) 1.10% if such Loan is to finance any Motor Vehicle other than Used
Motor Vehicles or Program Cars (such Floor Plan Loans hereinafter referred to
as "
New Vehicle Floor Plan Loans
") or (B) 1.40% if such Loan is to finance Used Motor Vehicles or Program Cars
(such Floor Plan Loans hereinafter referred to as "
Used Vehicle Floor Plan Loans
") and (ii) the Highest Lawful Rate.
(e)
Swing Line Loans and Swing Line Overdraft Loans
. Subject to the provisions of paragraph (f) below and the provisions of
Section 5.3
, each Swing Line Loan and each Swing Line Overdraft Loan shall bear interest
at the lesser of (i) the Quoted Rate and (ii) the Highest Lawful Rate. Swing
Line Loans used to finance Used Motor Vehicles or Program Cars are referred to
herein as "
Used Vehicle Swing Line Loans
" and Swing Line Loans used to finance all other Motor Vehicles are referred
to herein as "
New Vehicle Swing Line Loans
".
(f)
Offset Provisions
. From time to time, the Floor Plan Borrowers may establish one or more
general ledger accounts with the Swing Line Bank (collectively, the "
Offset Accounts
") into which payments may be made and other funds may be deposited (the
aggregate amount of such payments and funds credited to the Offset Accounts at
any time herein referred to as the "
Offset Amount
"). At any time the Floor Plan Borrowers have established one or more Offset
Accounts and any Offset Amount is credited to such Offset Accounts, solely for
purposes of calculating interest pursuant to paragraph (d) above, for each day
for which interest is to be calculated hereunder:
(i) the principal amount of any outstanding Used Vehicle Floor Plan Loans
and Used Vehicle Swing Line Loans shall be reduced by the Offset Amount (first
reducing any Used Vehicle Swing Line Loans, if any and next reducing any Used
Vehicle Floor Plan Loans);
(ii) if any Offset Amount remains after application in accordance with
clause (i), such Offset Amount shall reduce the New Vehicle Floor Plan Loans
and the New Vehicle Swing Line Loans (first reducing any New Vehicle Swing
Line Loans and next reducing any New Vehicle Floor Plan Loans).
No reduction shall result in the principal amount of the Used Vehicle Swing
Line Loans, Used Vehicle Floor Plan Loans, New Vehicle Swing Line Loans or New
Vehicle Floor Plan Loans being less than zero. On the first Business Day of
each month and from time to time upon request by the Agent, the Swing Line
Bank shall provide the then current Offset Amount as well as the requested
historical amounts thereof to the Agent.
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(g)
Interest Generally
. Interest on each Acquisition Loan, each Swing Line Loan, each Swing Line
Overdraft Loan and each Floor Plan Loan shall be payable in arrears on each
Interest Payment Date applicable to such Loan and as otherwise provided in
this Agreement. The applicable SOFR Rate, Eurocurrency Rate or Pounds Sterling
Rate and the Alternate Base Rate shall be determined by the Agent (which
determination shall be conclusive absent manifest error) and the Quoted Rate
shall be determined by the Swing Line Bank. The Agent shall provide prompt
notice of the SOFR Rate and the Alternate Base Rate to the Floor Plan Agent
and the Swing Line Bank. The Agent shall promptly advise the Borrowers and
each Lender 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
365/366 days) equal to the lesser of (a) the Highest Lawful Rate and (b) (i)
the then applicable rate plus two percent (2%) per annum in the case of any
Loans denominated in Dollars, and (ii) the then applicable rate plus three
percent (3%) per annum in the case of any Loans denominated in Euros or Pounds
Sterling.
Section 5.4
Fees
.
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(a) The Company shall pay to the Agent, within three (3) Business Days
after the last day of each March, June, September and December and on the
Maturity Date, in immediately available funds, (i) for the pro rata benefit of
the Floor Plan Lenders, a Floor Plan Loan Commitment fee (the "
Floor Plan Loan Commitment Fee
") equal to fifteen one-hundredths of one percent (0.15%) per annum times the
average unused amount of the Floor Plan Loan Commitments during the
immediately preceding fiscal quarter (or shorter portion thereof) just ended
(including any unused portion of the Acquisition Loan Commitments that has
been reallocated or converted to the Floor Plan Loan Commitment in accordance
with the terms hereof); (ii) for the benefit of the Acquisition Loan Lenders,
ratably in accordance with the actual amount of such Lender's available
Acquisition Loan Commitment (after giving effect to all outstanding Loans
thereunder) an Acquisition Loan Commitment fee (the "
Acquisition Loan Commitment Fee
") equal to the sum of (x) the average unused amount of the Acquisition Loan
Commitments times the applicable Commitment Fee Rate set forth in the table
contained in the definition of Applicable Margin and (y) to the extent that
the average Acquisition Loan Commitments, after giving effect to any
reallocation of Acquisition Loan Commitments to the Floor Plan Loan
Commitments in accordance with the terms hereof, is less than $50,000,000, an
amount equal to the unused portion of the Acquisition Loan Commitments that
has been reallocated or converted to the Floor Plan Loan Commitment in
accordance with the terms hereof and that reduces the Acquisition Loan
Commitments below $50,000,000 times the difference between the applicable
Commitment Fee Rate set forth in the table contained in the definition of
Applicable Margin and fifteen one-hundredths of one percent (0.15%) per annum
in each such case during the immediately preceding fiscal quarter (or shorter
period thereof) just ended. All Commitment Fees under this
Section 5.4(a)
shall be computed on the basis of the actual number of days elapsed in a year
of 365 or 366 days, as the case may be. The Commitment of a Lender shall be
deemed "unused" to the extent and in the amount such Lender is obligated to
fund future Loans or Letter of Credit Obligations of any Borrower regardless
of whether or not any amounts are outstanding under any Swing Line Loan. For
purposes of calculating the "unused" amount of the Acquisition Commitments,
Acquisitions Loans made in Alternate Currencies shall be deemed to be
outstanding in the Equivalent Amount, calculated as of the date each
Acquisition Loan was made. The Floor Plan Loan Commitment Fees and the
Acquisition Loan Commitment Fees due to each Lender shall commence to accrue
on the Closing Date and cease to accrue on the earlier of the Maturity Date
and the termination of the Commitments of such Lender pursuant to
Section 5.5
or
Section 13.3(b)
.
(b) The Company shall pay the Agent the fees (the "
Agency Fees
") in such amount and on such dates as may be agreed among the Company and the
Agent for its account as set forth in that certain letter agreement dated
February 11, 2022 among said parties, as amended, restated or otherwise
modified from time to time (the "
Agent's Letter
").
(c) The Company shall pay the Floor Plan Agent the floor plan agency fees ("
Floor Plan Agency Fees
") in such amount and on such dates as may be agreed among the Company and the
Floor Plan Agent pursuant to that certain letter agreement between said
parties dated February 25, 2022, as amended, restated or otherwise modified
from time to time (the "
Floor Plan Agent's Letter
").
(d) The Company shall pay the Agent for the benefit of the Floor Plan
Lenders, 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 the Agent for the benefit of the Lenders on
the Closing Date the fees payable to the Lenders as provided in the Agent's
Letter.
Section 5.5
Termination, Reduction or Conversion of Commitments
.
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(a) Upon at least three (3) Business Days' prior written notice to the
Agent, subject to the terms and provisions of this
Section 5.5
, the Company may at any time, in whole or in part, permanently terminate or
permanently reduce the Total Commitment, among the Lenders in accordance with
(i) their respective Pro Rata Share of Floor Plan Loan Commitments, and (ii)
their respective Pro Rata Share of Acquisition Loan Commitments;
provided
(x) any such partial reduction of the Total Commitment shall be in minimum
aggregate increments of $5,000,000; (y) any such partial reduction shall be
made ratably between the Total Floor Plan Loan Commitment and the Total
Acquisition Loan Commitment respectively, and pro rata among the Lenders
within each type of Commitment, and (z) no reduction shall reduce the amount
of the Total Acquisition Loan Commitment to an amount which is less than the
Letter of Credit Obligations outstanding at such time and no reduction shall
reduce the amount of the Total Floor Plan Loan Commitment to an amount which
is less than the Swing Line. In connection with any such reduction, the Floor
Plan Agent in its sole discretion may, or at the direction of the Required
Lenders shall, suspend and/or terminate all or any portion of the then
outstanding Drafting Agreements. In addition, no such reduction shall cause
the Total Acquisition Loan Commitment to exceed 40% of the Total Commitment.
Subject to the Company's right to subsequent terminations and reductions under
this paragraph (a), each notice delivered by the Company pursuant to this
paragraph (a) shall be irrevocable for such individual election notice.
(b) Subject to the terms and provisions of this
Section 5.5
, at any time there exists any unused portion of the Acquisition Loan
Commitments, the Company may request in writing the Agent to convert all or a
part of such unused portion of the Acquisition Loan Commitments into Floor
Plan Loan Commitments,
provided
, following such conversion, the total of the Acquisition Loan Commitments
shall not be less than an amount equal to (i) the sum of all Acquisition Loans
then outstanding, plus (ii) all Letter of Credit Obligations then outstanding,
plus (iii) any Reserve Commitment; and in such event and following five (5)
Business Days prior written notice from the Company to the Agent, the Floor
Plan Loan Commitments shall be 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 and following five (5) Business Days prior written notice from the
Company to the Agent, the Floor Plan Loan Commitments and the Acquisition Loan
Commitments shall be restored, as applicable, in the respective amounts so
requested by the Company. Upon any such conversion of Acquisition Loan
Commitments into Floor Plan Loan Commitments or vice versa, the Floor Plan
Loan Commitments shall be increased or decreased, as the case may be, pro rata
among the Floor Plan Lenders, and the Acquisition Loan Commitments shall be
increased or decreased, as the case may be, in an aggregate amount of the
corresponding increase or decrease in the Floor Plan Loan Commitments, which
increase or decrease in the Acquisition Loan Commitments shall be allocated
among the Acquisition Loan Lenders based on their Pro Rata Share of
Acquisition Loan Commitments. Subject to the Company's right to subsequent
conversions under this paragraph (b), each notice delivered by the Company
pursuant to this paragraph (b) shall be irrevocable for such individual
election notice.
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(c) Subject to the terms and provisions of this
Section 5.5
, at any time there exists any unused portion of the Floor Plan Loan
Commitments, the Company may request in writing the Agent to convert up to
$151,000,000 of such unused portion of the Floor Plan Loan Commitments into
Acquisition Loan Commitments;
provided
, following such conversion, the total of the Floor Plan Loan Commitments
shall not be less than an amount equal to (i) the sum of all Floor Plan Loans
then outstanding, plus (ii) the sum of all Swing Line Loans then outstanding;
and in such event and following five (5) Business Days prior written notice
from the Company to the Agent, the Acquisition Loan Commitments shall be
increased by the amount so requested by the Company, such amount together with
the Floor Plan Loan Commitments not to exceed the Total Commitment. At any
time there exists any unused amount of a converted portion of the Acquisition
Loan Commitments, the Company may request the Agent to reverse any such
portion thereof, in whole or in part, and in such event and following five (5)
Business Days prior written notice from the Company to the Agent, the
Acquisition Loan Commitments and the Floor Plan Loan Commitments shall be
restored, as applicable, in the respective amounts so requested by the
Company. Upon any such conversion of Floor Plan Loan Commitments into
Acquisition Loan Commitments or vice versa, the Acquisition Loan Commitments
shall be increased or decreased, as the case may be, pro rata among the
Acquisition Loan Lenders, and the Floor Plan Loan Commitments shall be
increased or decreased, as the case may be, in an aggregate amount of the
corresponding increase or decrease in the Acquisition Loan Commitments, which
increase or decrease in the Floor Plan Loan Commitments shall be allocated
among the Floor Plan Lenders based on their Pro Rata Share of Floor Plan Loan
Commitments. Subject to the Company's right to subsequent conversions under
this paragraph (c), each notice delivered pursuant this paragraph (c) shall be
irrevocable for such individual election notice.
(d) The Borrowers shall not be required to deliver replacement Notes to any
Lender in connection with any conversion of the Acquisition Loan Commitments
or Floor Plan Loan Commitments or any reversal of any such conversion, in each
case, under
Section 5.5(b)
or
(c)
. Following any such conversion or reversal, the amount of each Lender's
Acquisition Loan Commitment and Floor Plan Loan Commitment shall be noted on
the Agent's records, which records will be conclusive evidence thereof, absent
manifest error;
provided
,
however
, that any failure by the Agent to record any such information shall not
affect the obligations of the Borrowers with respect thereto in accordance
with the terms of this Agreement and the Loan Documents.
(e) After giving effect to any reduction, conversion or reversal thereof
pursuant to the terms of this
Section 5.5
, the Total Acquisition Loan Commitment shall not exceed 40% of the Total
Commitment.
(f) At the time the Commitments of any Lender are terminated or reduced
pursuant to
Section 5.5(a)
, the Company shall pay to the Agent for the account of each such Lender, the
Floor Plan Loan Commitment Fees and the Acquisition Loan Commitment Fees on
the amount of such terminated or reduced Commitments owed to the date of such
termination or reduction.
(g) Each of the Commitments shall automatically and permanently terminate
on the Maturity Date.
Section 5.6 Availability
of Types of Borrowings; Benchmark Replacement
.
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(a)
Unavailability
(i)
Unavailability of SOFR
. If the Agent determines (which determination shall be conclusive absent
manifest error) that "Daily Simple SOFR" or "Term SOFR" cannot be determined
pursuant to the definition thereof other than as a result of a Benchmark
Transition Event, then the Agent will promptly so notify the Company and each
Lender. Upon notice thereof by the Agent to the Company, (i) any obligation of
the Lenders to make or continue SOFR Loans or to convert Alternate Base Rate
Loans to Term SOFR Loans shall be suspended, (ii) all SOFR Loans shall be
immediately converted to Alternate Base Rate Loans, and (iii) the component of
the Alternate Base Rate based upon SOFR will not be used in any determination
of the Alternate Base Rate, in each case, until the Agent revokes such notice.
Upon receipt of such notice, the Borrowers may revoke any pending request for
a borrowing of, conversion to or continuation of SOFR Loans or, failing that,
will be deemed to have converted such request into a request for Alternate
Base Rate Loans in the amount specified therein.
(ii)
Unavailability of EURIBOR or SONIA.
If the Agent determines (which determination shall be conclusive and binding
absent manifest error) that "EURIBOR" or "SONIA" cannot be determined pursuant
to the definition thereof other than as a result of a Benchmark Transition
Event, then the Agent will promptly so notify the Company and each Lender.
Upon notice thereof by the Agent to the Company, (i) any obligation of the
Lenders to make or continue Eurocurrency Loans or Pounds Sterling Loans, as
the case may be, or to convert Alternate Base Rate Loans to Eurocurrency Loans
or Pounds Sterling Loans, as the case may be, shall be suspended and (ii) all
Eurocurrency Loans or Pounds Sterling Loans, as the case may be, shall be
immediately converted to Alternate Base Rate Loans. Upon receipt of such
notice, the Borrowers may revoke any pending request for a borrowing of,
conversion to or continuation of Eurocurrency Loans or Pounds Sterling Loans,
as the case may be or, failing that, will be deemed to have converted such
request into a request for Alternate Base Rate Loans in the amount specified
therein.
(b)
Benchmark Replacement
.
(i)
Benchmark Transition Event
. Notwithstanding anything to the contrary herein or in any other Loan
Document, upon the occurrence of a Benchmark Transition Event, the Agent and
the Borrowers may amend this Agreement to replace the then-current Benchmark
with a Benchmark Replacement. Any such amendment with respect to a Benchmark
Transition Event will become effective at or after 5:00 p.m. (New York City
time) on the fifth Business Day after the Agent has posted such proposed
amendment to all Lenders and the Borrowers
without any amendment to, or further action or consent of any other party to,
this Agreement or any other Loan Document so long as the Agent has not
received, by such time, written notice of objection to such amendment from
Lenders comprising the Required Lenders.
(ii)
Benchmark Replacement Conforming Changes
.
In connection with the implementation of a Benchmark Replacement, the Agent
will have the right to make Benchmark Replacement Conforming Changes from time
to time and, notwithstanding anything to the contrary herein or in any other
Loan Document, any amendments implementing such Benchmark Replacement
Conforming Changes will become effective without any further action or consent
of any other party to this Agreement or any other Loan Document.
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(iii)
Notices; Standards for Decisions and Determinations
. The Agent will promptly notify the Borrowers and the Lenders of (A) any
occurrence of a Benchmark Transition Event and its related Benchmark
Replacement Date, (B) the implementation of any Benchmark Replacement, (C) the
effectiveness of any Benchmark Replacement Conforming Changes, (D) the removal
or reinstatement of any tenor of a Benchmark pursuant to clause (iv) below and
(E) the commencement or conclusion of any Benchmark Unavailability Period. Any
determination, decision or election that may be made by the Agent or, if
applicable, any Lender (or group of Lenders) pursuant to this Section 5.6(b),
including any determination with respect to a tenor, rate or adjustment or of
the occurrence or non-occurrence of an event, circumstance or date and any
decision to take or refrain from taking any action or any selection, will be
conclusive and binding absent manifest error and may be made in its or their
sole discretion and without consent from any other party to this Agreement or
any other Loan Document, except, in each case, as expressly required pursuant
to this Section 5.6(b).
(iv)
Unavailability of Tenor of Benchmark
. Notwithstanding anything to the contrary herein or in any other Loan
Document, at any time (including in connection with the implementation of a
Benchmark Replacement), (A) if the then-current Benchmark is a term rate and
either (1) any tenor for such Benchmark is not displayed on a screen or other
information service that publishes such rate from time to time as selected by
the Agent in its reasonable discretion or (2) the regulatory supervisor for
the administrator of such Benchmark has provided a public statement or
publication of information announcing that any tenor for such Benchmark is or
will be no longer representative, then the Agent may modify the definition of
"Interest Period" (or analogous term) for any Benchmark settings at or after
such time to remove such unavailable or non-representative tenor and (B) if a
tenor that was removed pursuant to clause (A) above either (1) is subsequently
displayed on a screen or information service for a Benchmark (including a
Benchmark Replacement) or (2) is not, or is no longer, subject to an
announcement that it is or will no longer be representative for a Benchmark
(including a Benchmark Replacement), then the Agent may modify the definition
of "Interest Period" (or analogous term) for all Benchmark settings at or
after such time to reinstate such previously removed tenor.
(v)
Benchmark Unavailability Period
. Upon notice to the Borrowers by the Agent in accordance with Section 13.1 of
the commencement of a Benchmark Unavailability Period and until a Benchmark
Replacement is determined in accordance with this Section 5.6(b) for such
Benchmark, the Borrowers may revoke any request for a Borrowing utilizing such
Benchmark, or any request for the conversion or continuation of a Borrowing
utilizing such Benchmark to be made, converted or continued during any
Benchmark Unavailability Period and, failing that, the Borrowers will be
deemed to have converted any such request into a request for a ABR Borrowing
or conversion to a ABR Borrowing. During any Benchmark Unavailability Period
or at any time that a tenor for the then-current Benchmark is not an Available
Tenor, the component of the Alternate Base Rate based upon the then-current
Benchmark, SOFR or such tenor for such Benchmark, as applicable, will not be
used in any determination of the Alternate Base Rate.
Section 5.7
Prepayment of Loans; Mandatory Reduction of Indebtedness
.
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(a) So long as no Swing Line Overdraft Loans are outstanding, each
Acquisition Loan Borrowing, each Floor Plan Loan Borrowing and each Swing Line
Loan may be prepaid at any time and from time to time, in whole or in part,
subject, in the case of Acquisition Loan Borrowings, to the requirements of
Section 5.10
, but otherwise without premium or penalty, upon at least three (3) Business
Days' prior written or facsimile notice to the Agent. Each Swing Line
Overdraft 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. Any prepayments of Acquisition
Loans shall be made in the currency in which the Acquisition Loan being repaid
was made.
(b) On the date of any termination or reduction of the Total Commitment
pursuant to
Section 5.5(a)
, each of the Borrowers shall prepay the Loans in an amount equal to the
amount by which the Total Commitment is being so terminated or reduced, as
shall be necessary in order that the aggregate principal amount of the Loans
and Letter of Credit Obligations outstanding will not exceed the Total
Commitment following such termination or reduction. All prepayments of
Acquisition Loans under this paragraph shall be subject to
Section 5.10
.
(c) Each notice of prepayment shall be irrevocable and shall specify the
prepayment date and the principal amount of each Loan (or portion thereof) and
the Type of Loan to be prepaid. All prepayments shall be accompanied by
accrued interest on the principal amount being prepaid to the date of
prepayment.
(d) Subject to the provisions of
Section 2.3(c)(iii)
, if at any time and for any reason:
(i) the aggregate principal amount of (y) all Floor Plan Loans outstanding,
plus (z) all Swing Line Loans outstanding shall exceed the Total Floor Plan
Loan Commitment at such time, or
(ii) the aggregate principal amount of all Loans in Alternative Currencies
shall exceed the Alternative Currency Sublimit by an amount greater than five
percent (5%) of the Alternative Currency Sublimit, or
(iii) the aggregate principal amount of all (x) Acquisition Loans, plus (y)
Letter of Credit Obligations shall exceed the amount of the Acquisition Loan
Advance Limit, or
(iv) the aggregate principal amount of all (w) Floor Plan Loans
outstanding, plus (x) Swing Line Loans outstanding, plus (y) Acquisition Loans
outstanding, plus (z) Letter of Credit Obligations outstanding shall exceed
the Total Commitment,
the Borrowers shall immediately, upon demand, pay to the Agent for payment to
the Lenders an amount of such Obligations equal to such excess and, to the
extent such payment relates to the Floor Plan Loans and/or the Swing Line
Loans, the Agent shall transfer such monies to the Floor Plan Agent.
(e) If any Floor Plan Borrower becomes a Dual Subsidiary in accordance with
Section 9.19 at such time as such Floor Plan Borrower has outstanding any New
Vehicle Floor Plan Loan or New Vehicle Swing Line Loan, then such Floor Plan
Borrower shall repay in full each outstanding New Vehicle Floor Plan Loan and
each New Vehicle Swing Line Loan prior to or on the Dual Subsidiary Financing
Commencement Date.
Section 5.8
Reserve Requirements; Change in Circumstances
.
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(a) It is understood that the cost to each Lender of making or maintaining
any of the SOFR, Eurocurrency or Pounds Sterling 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 Closing Date. The Borrowers
agree to pay to such Lender from time to time such amounts as shall be
necessary to compensate such Lender for the portion of the cost of making or
maintaining SOFR, Eurocurrency or Pounds Sterling Loans resulting from any
increase in such reserve requirements provided for in Regulation D (or any
successor regulation or ruling issued in respect thereof) from those as in
effect on the Closing Date, it being understood that the rates of interest
applicable to such Loans have been determined on the assumption that no such
reserve requirements exist or will exist and that such rates do not reflect
costs imposed on the Lenders in connection with such reserve requirements.
(b) Notwithstanding any other provision herein, if any Change in Law shall
(i) subject any Recipient to any Taxes (other than (A) Indemnified Taxes, (B)
Taxes described in clauses (b) through (d) of the definition of Excluded Taxes
and (C) Other Connection Taxes that are imposed on or measured by net income
(however denominated) or that are franchise Taxes or branch profits Taxes) on
its loans, loan principal, letters of credit, commitments or other
obligations, or its deposits, reserves other liabilities or capital
attributable thereto, (ii) impose, modify or deem applicable any reserve,
special deposit, compulsory loan, insurance charge or similar requirement
against assets of, deposits with or for the account of, or credit extended or
participated in by, any Lender (other than any amounts described in paragraph
(a) above) or (iii) impose on any Lender or any Issuing Bank or the London
interbank market any other condition, cost or expense (other than Taxes)
affecting this Agreement or SOFR, Eurocurrency or Pounds Sterling Loans made
by such Lender or any Letter of Credit or participation therein; and the
result of any of the foregoing shall be to increase the cost to such Lender or
such other Recipient of making, converting to, continuing or maintaining any
SOFR, Eurocurrency or Pounds Sterling Loan or of maintaining its obligation to
make any such Loan, or to increase the cost to such Lender or such other
Recipient of participating in, issuing or maintaining any Letter of Credit (or
of maintaining its obligation to participate in or to issue any Letter of
Credit) or to reduce the amount of any sum received or receivable by such
Lender or such other Recipient hereunder (whether of principal, interest or
otherwise) in respect thereof, by an amount deemed by such Lender or such
other Recipient in its sole discretion to be material, then the Borrowers
shall pay as required in
Section 5.8(d)
such additional amount or amounts as will compensate such Lender or such other
Recipient for such additional costs incurred or reduction suffered.
(c) If any Lender or any Issuing Bank shall have determined that any Change
in Law affecting such Lender or such Issuing Bank or any lending office of
such Lender or such Lender's or such Issuing Bank's holding company, if any,
regarding capital or liquidity requirements, has or would have the effect of
reducing the rate of return on such Lender's or such Issuing Bank's capital or
on the capital of such Lender's or such Issuing Bank's holding company, if
any, as a consequence of this Agreement, the Commitments of such Lender or the
Loans made by, or participations in Letters of Credit or Swing Line Loans held
by, such Lender, or the Letters of Credit issued by such Issuing Bank, to a
level below that which such Lender or such Issuing Bank or such Lender's or
such Issuing Bank's holding company could have achieved but for such Change in
Law (taking into consideration such Lender's or such Issuing Bank's policies
and the policies of such Lender's or such Issuing Bank's holding company with
respect to capital adequacy) by an amount deemed by such Lender or such
Issuing Bank in its sole discretion to be material, then the Borrowers shall
pay as required to
Section 5.8(d)
to such Lender or such Issuing Bank such additional amount or amounts as will
compensate such Lender or such Issuing Bank or such Lender's or such Issuing
Bank's holding company for any such reduction suffered.
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(d) A certificate of a Lender or an Issuing 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 without duplication such Lender (or participating banks or other
entities pursuant to
Section 13.3
subject to the limitations set forth therein) or such Issuing Bank or its
holding company, as the case may be, under
Section 5.8(a)
,
Section 5.8(b)
or
Section 5.8(c)
shall be delivered to the Agent which shall promptly deliver the same to the
Company and such certificate shall be rebuttably presumptive evidence of the
amount or amounts which such Lender or such Issuing Bank is entitled to
receive. The Borrowers shall pay such Lender or such Issuing 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 Lender or Issuing Bank incurs
the expense, cost or economic loss referred to or such Lender or Issuing Bank
shall be deemed to have waived the right to such compensation. The protection
of this
Section 5.8
shall be available to each Lender and Issuing 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 Lender or Issuing
Bank for compensation.
(f) Nothing in this
Section 5.8
shall entitle any Lender to receive interest at a rate per annum in excess of
the Highest Lawful Rate.
Section 5.9
Change in Legality
.
(a) Notwithstanding anything to the contrary herein contained, if any
Change in Law shall make it unlawful for any Lender to make or maintain any
SOFR, Eurocurrency or Pounds Sterling Loan, then, by written notice to the
Agent, such Lender may:
(i) declare that SOFR, Eurocurrency or Pounds Sterling Loans will not
thereafter be made by such Lender hereunder, whereupon any request by any
Borrower for a SOFR, Eurocurrency or Pounds Sterling Borrowing in such
unlawful currency shall, as to such Lender only, not be available, unless such
declaration shall be subsequently withdrawn; and
(ii) require that all outstanding SOFR Loans made by it be converted to
Alternate Base Rate Loans, in which event all such SOFR Loans shall be
automatically converted to Alternate Base Rate Loans or, if Eurocurrency or
Pounds Sterling Loans, repaid, in each case, as of the effective date of such
notice as provided in
Section 5.9(b)
.
In the event any Lender shall exercise its rights under (i) or (ii) above, all
payments and prepayments of principal which would otherwise have been applied
to repay the SOFR Loans made by such Lender or the converted SOFR Loans of
such Lender shall instead be applied to repay the Alternate Base Rate Loans
made by such Lender in lieu of, or resulting from the conversion of, such SOFR
Loans.
(b) For purposes of
Section 5.9(a)
, a notice to the Agent by any Lender shall be effective as to each Term SOFR
and Eurocurrency Loan on the last day of each applicable Interest Period.
Section 5.10
Breakage Costs and Related Matters
.
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(a) The Borrowers shall indemnify each Lender against any loss or expense
which such Lender may sustain or incur as a consequence of (i) any failure by
the Company to fulfill on the date of any Acquisition Loan Borrowing hereunder
the applicable conditions set forth in
Article VIII
, (ii) any failure by the Company to borrow, convert or continue hereunder
after delivery of a Request for Borrowing for an Acquisition Loan Borrowing,
including a notice of conversion or continuation that has been given pursuant
to
Section 3.3
or
Section 5.15(a)
, (iii) any payment, prepayment or conversion of an Acquisition Loan that is a
Term SOFR or Eurocurrency 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 Acquisition 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
Acquisition Loan or any part thereof as a SOFR, Eurocurrency or Pounds
Sterling Loan. Such loss or reasonable expense shall include an amount equal
to the excess, if any, as reasonably determined by each Lender of (A) its cost
of obtaining the funds for the Acquisition Loan being paid, prepaid or
converted or not borrowed (based on the Term SOFR Rate or Eurocurrency Rate
applicable thereto) for the period from the date of such payment, prepayment
or conversion or failure to borrow to the last day of the Interest Period for
such Loan (or, in the case of a failure to borrow, the Interest Period for
such Loan which would have commenced on the date of such failure to borrow)
over (B) the amount of interest (as reasonably determined by such Lender) that
could be realized by such Lender in reemploying during such period the funds
so paid, prepaid or converted or not borrowed. A certificate of each Lender
setting forth in reasonable detail calculations (together with the basis and
assumptions therefore) to establish any amount or amounts which such Lender is
entitled to receive pursuant to this
Section 5.10
shall be delivered to the Agent which shall promptly deliver the same to the
Company and such certificate shall be rebuttably presumptive evidence of the
amount or amounts which such Lender is entitled to receive. Nothing in this
Section 5.10
shall entitle any Lender to receive interest 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 Acquisition 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 Lender;
provided
demand for compensation pursuant to this
Section 5.10
must be made on or before one (1) year after the Lender incurs the expense,
cost or economic loss referred to or such Lender shall be deemed to have
waived the right to such compensation. All amounts due under this
Section 5.10
shall be payable within ten (10) days after receipt of demand therefor.
(c) Notwithstanding anything to the contrary contained herein, Floor Plan
Loans or Requests for Borrowing in respect of Floor Plan Loans shall not be
subject to the indemnification provisions of this
Section 5.10
, and no losses, costs or expenses may be asserted by the Floor Plan Agent or
any Floor Plan Lender against any Floor Plan Borrower as a consequence of any
action or failure contemplated in
Section 5.10(a)
in respect of any Floor Plan Loans or any Requests for Borrowing in respect of
Floor Plan Loans.
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Section 5.11
Pro Rata Treatment
. Except for (a) Borrowings advanced under the Acquisition Loan Commitments in
Alternative Currencies, (b) the repayment of such Borrowings (which shall be
pro rata for the benefit of the Lenders advancing same), (c) subsequent
Borrowings under the Acquisition Loan in Dollars to bring each Lender
thereunder back into compliance with such Lender's Pro Rata Share of
Acquisition Loan Commitments, (d) payment on the Swing Line Loans or the Swing
Line Overdraft Loans or (e) as otherwise provided herein, each Borrowing, each
payment or prepayment of principal of the Notes, each payment of interest on
such Notes, each other reduction of the principal or interest outstanding
under such Notes, however achieved, each payment of the Commitment Fees and
each reduction of the Commitments shall be made, as applicable, in accordance
with each Lender's respective (i) Pro Rata Share of Floor Plan Loan
Commitments and (ii) Pro Rata Share of Acquisition Loan Commitments.
Section 5.12
Place of Payments
.
(a) The Borrowers shall make all payments of principal and interest on any
Floor Plan Loan, Swing Line Loan and any Swing Line Overdraft Loan or of the
proceeds of the sale of any Motor Vehicle, on the date when due in Dollars to
the Floor Plan Agent at the office specified by the Floor Plan Agent. The
Borrowers shall make all payments of principal and interest on any Acquisition
Loan denominated in Dollars on the date when due in Dollars to the Agent at
U.S. Bank, 800 Nicollet Mall, Minneapolis, Minnesota, or by wire transfer to
U.S. Bank, ABA#091000022, for credit to account #0006854-2160600, reference:
Group 1 Automotive, Inc., Attn: Syndication Services. The Borrowers shall make
all payments of principal and interest on any Acquisition Loans denominated in
an Alternative Currency to the Alternative Currency Agent at the place
designated by said Agent in its notice therefor. Except as otherwise provided
in this Agreement, the Borrowers shall make all payments (including principal
of or interest on any Borrowing, the Agency Fee, or any other fees or other
amounts) payable hereunder and under any other Loan Document not later than
1:00 p.m., Houston, Texas time if being paid to the Agent or the Floor Plan
Agent, and Minneapolis, Minnesota time if being paid to the Alternative
Currency Agent and, in each case, in immediately available funds, without
setoff or counterclaim. The Agent, the Floor Plan Agent or the Alternative
Currency Agent, as the case may be, shall distribute any such payments
received by it for the account of any other Person to the appropriate
recipient promptly following receipt thereof.
(b) Whenever any payment (including principal of or interest on any
Borrowing or any fees or other amounts) hereunder or under any other Loan
Document shall become due, or otherwise would occur, on a day that is not a
Business Day, such payment shall be made on the next succeeding Business Day,
and such extension of time shall in such case be included in the computation
of interest and fees, if applicable;
provided
, all payments must be made on or before the Maturity Date.
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(c) Unless the Agent shall have received notice from a Lender prior to the
date of a Borrowing that such Lender will not make available to the Agent its
portion of such Borrowing, the Agent may assume that such Lender has made such
portion available to the Agent on the date of such Borrowing. The Agent may,
in reliance upon such assumption, make available to the appropriate Person on
such date a corresponding amount. If, and to the extent that a Lender shall
not have made its portion of a Borrowing available to the Agent, such Lender
and the Borrowers severally, agree to pay to the Agent forthwith on demand
such corresponding amount together with interest thereon, for each day from
the date such amount is made available to the Agent until the date such amount
is repaid to the Agent (i) in the case of the Borrowers, (A) at the Alternate
Base Rate for Acquisition Loans made in Dollars and Floor Plan Loans and (B)
at the Pounds Sterling Rate or Eurocurrency Rate, as applicable for
Eurocurrency or Pounds Sterling Loans, and (ii) in the case of such Lender, at
the Federal Funds Effective Rate for all Dollar denominated Loans and at the
Eurocurrency Rate or Pounds Sterling Rate, as applicable, for all Alternative
Currency denominated Loans. If such Lender shall repay to the Agent such
corresponding amount, such amount shall constitute such Lender's portion of
such Borrowing for purposes of this Agreement.
Section 5.13
Sharing of Setoffs
. Except as otherwise provided in
Section 4.6(b)
in connection with the payment of Swing Line Overdraft Loans, each Lender
agrees that if it shall, in any manner, including through the exercise of a
right of banker's lien, setoff or counterclaim against any Borrower, or
pursuant to a secured claim under Section 506 of Title 11 of the United States
Code or other security or interest arising from, or in lieu of, such secured
claim, received by such Lender under any Insolvency Proceeding or otherwise,
obtain payment (voluntary or involuntary) in respect of the Note held by it as
a result of which the unpaid principal portion of the Note held by it shall be
proportionately less than the unpaid principal portion of the Note held by any
other Lender, it shall be deemed to have simultaneously purchased from such
other Lender a participation in the Note held by such other Lender, so that
the aggregate unpaid principal amount of the Note and participations in Notes
held by each Lender shall be in the same proportion to the aggregate unpaid
principal amount of all Notes then outstanding as the principal amount of the
Note held by it prior to such exercise of banker's lien, setoff or
counterclaim was to the principal amount of all Notes outstanding prior to
such exercise of banker's lien, setoff or counterclaim;
provided
, that if any such purchase or purchases or adjustments shall be made pursuant
to this
Section 5.13
and the payment giving rise thereto shall thereafter be recovered, such
purchase or purchases or adjustments shall be rescinded to the extent of such
recovery and the purchase price or prices or adjustment restored without
interest. The Borrowers expressly consent to the foregoing arrangements and
agree that any Person holding a participation in a Note under this
Section 5.13
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 Lender as
fully as if such Lender had made a Loan directly to such Borrower in the
amount of such participation.
Section 5.14
Taxes
.
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(a) Any and all payments by or on account of the Borrowers under any Loan
Document shall be made without deduction or withholding for any Taxes, except
as required by applicable law. If any applicable law (as determined in the
good faith discretion of an applicable Withholding Agent) requires the
deduction or withholding of any Tax from or in respect of any sum payable by a
Withholding Agent then the applicable Withholding Agent shall be entitled to
make such deduction or withholding and shall timely pay the full amount
deducted or withheld to the relevant Governmental Authority in accordance with
applicable law and, if such Tax is an Indemnified Tax, the sum payable by the
applicable Borrower shall be increased by the amount necessary so that after
making all required deductions and withholdings (including deductions and
withholdings applicable to additional sums payable under this
Section 5.14
) the applicable Recipient shall receive an amount equal to the sum it would
have received had no such deductions or withholding been made.
(b) The Borrowers shall timely pay to the relevant Governmental Authority
in accordance with applicable law, or at the option of the Agent timely
reimburse it for the payment of, any Other Taxes.
(c) The Borrowers shall indemnify each Recipient, within thirty (30) days
after demand therefor, for the full amount of any Indemnified Taxes (including
any Indemnified Taxes imposed or asserted on or attributable to amounts
payable under this
Section 5.14
) payable or paid by such Recipient or required to be withheld or deducted
from a payment to such Recipient and any reasonable expenses arising therefrom
or with respect thereto, whether or not such Indemnified Taxes were correctly
or legally imposed or asserted by the relevant Governmental Authority. A
certificate setting forth the amount of such payment or liability (including
all assumptions and the basis therefor) delivered to the Company by a Lender
(with a copy to the Agent), or by the Agent on its own behalf or on behalf of
any Lender, shall be conclusive absent manifest error.
(d) Each Lender shall severally indemnify the Agent and the Floor Plan
Agent, within thirty (30) days after demand therefor, for (i) any Indemnified
Taxes attributable to such Lender (but only to the extent that the Borrowers
have not already indemnified the Agent or the Floor Plan Agent for such
Indemnified Taxes and without limiting the obligation of the Borrowers to do
so), (ii) any Taxes attributable to such Lender's failure to comply with the
provisions of
Section 13.3(f)
relating to the maintenance of a Participant Register and (iii) any Excluded
Taxes attributable to such Lender, in each case, that are payable or paid by
the Agent or the Floor Plan Agent in connection with any Loan Document, and
any reasonable expenses arising therefrom or with respect thereto, whether or
not such Taxes were correctly or legally imposed or asserted by the relevant
Governmental Authority. A certificate as to the amount of such payment or
liability delivered to any Lender by the Agent shall be conclusive absent
manifest error. Each Lender hereby authorizes each of the Agent and the Floor
Plan Agent to set off and apply any and all amounts at any time owing to such
Lender under any Loan Document against any amount due to the Agent or the
Floor Plan Agent under this paragraph (d).
(e) Within thirty (30) days after the date of any payment of Taxes by a
Borrower to a Governmental Authority pursuant to this
Section 5.14
, such Borrower shall deliver to the Agent a certified copy of a receipt
evidencing such payment, a copy of the return reporting such payment or other
evidence of such payment reasonably satisfactory to the Agent.
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(f) (i) Any Lender that is entitled to an exemption from or reduction of
withholding Tax with respect to payments made under any Loan Document shall
deliver to the Company and the Agent, at the time or times reasonably
requested by the Company or the Agent, such properly completed and executed
documentation reasonably requested by the Company or the Agent as will permit
such payments to be made without withholding or at a reduced rate of
withholding. In addition, any Lender, if reasonably requested by the Company
or the Agent, shall deliver such other documentation prescribed by applicable
law or reasonably requested by the Company or the Agent as will enable the
Company or the Agent to determine whether or not such Lender is subject to
backup withholding or information reporting requirements. Notwithstanding
anything to the contrary in the preceding two sentences, the completion,
execution and submission of such documentation (other than such documentation
set forth in
(f)(ii)(A)
,
(ii)(B)
and
(ii)(D)
below) shall not be required if in the Lender's reasonable judgment such
completion, execution or submission would subject such Lender to any material
unreimbursed cost or expense or would materially prejudice the legal or
commercial position of such Lender.
(ii) Without limiting the generality of the foregoing,
(A) any Lender that is a U.S. Person shall deliver to the Company and the
Agent on or prior to the date on which such Lender becomes a Lender under this
Agreement (and from time to time thereafter upon the reasonable request of the
Company or the Agent), executed copies of IRS Form W-9 certifying that such
Lender is exempt from U.S. federal backup withholding tax;
(B) any Foreign Lender shall, to the extent it is legally entitled to do
so, deliver to the Company and the Agent (in such number of copies as shall be
requested by the recipient) on or prior to the date on which such Foreign
Lender becomes a Lender under this Agreement (and from time to time thereafter
upon the reasonable request of the Company or the Agent), whichever of the
following is applicable:
(1) in the case of a Foreign Lender claiming the benefits of an income tax
treaty to which the United States is a party (x) with respect to payments of
interest under any Loan Document, executed copies of IRS Form W-8BEN-E or IRS
Form W-8BEN (or any successor form) establishing an exemption from, or
reduction of, U.S. federal withholding Tax pursuant to the "interest" article
of such tax treaty and (y) with respect to any other applicable payments under
any Loan Document, IRS Form W-8BEN-E or IRS Form W-8BEN (or any successor
form) establishing an exemption from, or reduction of, U.S. federal
withholding Tax pursuant to the "business profits" or "other income" article
of such tax treaty;
(2) executed copies of IRS Form W-8ECI (or any successor form);
(3) in the case of a Foreign Lender claiming the benefits of the exemption
for portfolio interest under Section 881(c) of the Code, (x) a certificate
substantially in the form of
Exhibit 5.14-1
to the effect that such Foreign Lender is not a "bank" within the meaning of
Section 881(c)(3)(A) of the Code, a "10 percent shareholder" of such Borrower
within the meaning of Section 881(c)(3)(B) of the Code, or a "controlled
foreign corporation" described in Section 881(c)(3)(C) of the Code (a "
U.S. Tax Compliance Certificate
") and (y) executed copies of IRS Form W-8BEN-E or IRS Form W-8BEN (or any
successor form); or
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(4) to the extent a Foreign Lender is not the beneficial owner, executed
copies of IRS Form W-8IMY (or any successor form), accompanied by IRS Form
W-8ECI, IRS Form W-8BEN-E, IRS Form W-8BEN (or any successor form), a U.S. Tax
Compliance Certificate substantially in the form of
Exhibit 5.14-2
or
Exhibit 5.14-3
, IRS Form W-9, and/or other certification documents from each beneficial
owner, as applicable; provided that if the Foreign Lender is a partnership and
one or more direct or indirect partners of such Foreign Lender are claiming
the portfolio interest exemption, such Foreign Lender may provide a U.S. Tax
Compliance Certificate substantially in the form of
Exhibit 5.14-4
on behalf of each such direct and indirect partner;
(C) any Foreign Lender shall, to the extent it is legally entitled to do
so, deliver to the Company and the Agent (in such number of copies as shall be
requested by the recipient) on or prior to the date on which such Foreign
Lender becomes a Lender under this Agreement (and from time to time thereafter
upon the reasonable request of the Company or the Agent), executed copies of
any other form prescribed by applicable law as a basis for claiming exemption
from or a reduction in U.S. federal withholding Tax, duly completed, together
with such supplementary documentation as may be prescribed by applicable law
to permit the relevant Borrower or the Agent to determine the withholding or
deduction required to be made; and
(D) if a payment made to a Lender under any Loan Document would be subject
to U.S. federal withholding Tax imposed by FATCA if such Lender were to fail
to comply with the applicable reporting requirements of FATCA (including those
contained in Section 1471(b) or 1472(b) of the Code, as applicable), such
Lender shall deliver to the Company and the Agent at the time or times
prescribed by law and at such time or times reasonably requested by the
Company or the Agent such documentation prescribed by applicable law
(including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such
additional documentation reasonably requested by the Company or the Agent as
may be necessary for the Company and the Agent to comply with their
obligations under FATCA and to determine that such Lender has complied with
such Lender's obligations under FATCA or to determine the amount to deduct and
withhold from such payment. Solely for purposes of this clause (D), "FATCA"
shall include any amendments made to FATCA after the date of this Agreement.
Each Lender agrees that if any form or certification it previously delivered
expires or becomes obsolete or inaccurate in any respect, it shall update such
form or certification or promptly notify the relevant Borrower and the Agent
in writing of its legal inability to do so.
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(g) If any party determines, in its sole discretion exercised in good
faith, that it has received a refund of any Taxes as to which it has been
indemnified pursuant to this
Section 5.14
(including by the payment of additional amounts pursuant to this
Section 5.14
), it shall pay to the indemnifying party an amount equal to such refund (but
only to the extent of indemnity payments made under this Section with respect
to the Taxes giving rise to such refund), net of all related out-of-pocket
expenses (including Taxes) of such indemnified party and without interest
(other than any interest paid by the relevant Governmental Authority with
respect to such refund). Such indemnifying party, upon the request of such
indemnified party, shall repay to such indemnified party the amount paid over
pursuant to this paragraph
(g)
(plus any penalties, interest or other charges imposed by the relevant
Governmental Authority) in the event that such indemnified party is required
to repay such refund to such Governmental Authority. Notwithstanding anything
to the contrary in this paragraph
(g)
, in no event will the indemnified party be required to pay any amount to an
indemnifying party pursuant to this paragraph
(g)
the payment of which would place the indemnified party in a less favorable net
after-Tax position than the indemnified party would have been in if the Tax
subject to indemnification and giving rise to such refund had not been
deducted, withheld or otherwise imposed and the indemnification payments or
additional amounts with respect to such Tax had never been paid. This
paragraph shall not be construed to require any indemnified party to make
available its Tax returns (or any other information relating to its Taxes that
it deems confidential) to the indemnifying party or any other Person.
(h) For purposes of this
Section 5.14
, the term "Lender" includes any Issuing Bank and the term "applicable law"
includes FATCA.
(i) Each party's obligations under this
Section 5.14
shall survive the resignation or replacement of the Agent or the Floor Plan
Agent or any assignment of rights by, or the replacement of, a Lender, the
termination of the Commitments and the repayment, satisfaction or discharge of
all obligation under any Loan Document.
Section 5.15
Applicable Interest Rate
.
(a) The Company shall have the right with respect to Acquisition Loan
Borrowings, 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 Term SOFR Borrowing into an ABR Borrowing, (y) not later than
11:00 a.m., Houston, Texas time, three (3) Business Days prior to conversion
or continuation, to convert all or any portion of any ABR Borrowing into a
Term SOFR Borrowing, to continue all or any portion of any Term SOFR Borrowing
as a Term SOFR Borrowing for an additional Interest Period, or to select
another Interest Period therefor, and (z) not later than 11:00 a.m.,
Minneapolis, Minnesota time, four (4) Business Days prior to continuation, to
continue all or any portion of any Eurocurrency Borrowing for an additional
Interest Period, subject, in each case, to the following:
(i) each conversion or continuation shall be made among the Lenders, in
accordance with each Lender's Pro Rata Share of Acquisition Loan Commitments
subject to the provisions of
Section 3.1(b)
and
Section 3.2(c)(ii)
hereof;
(ii) if less than all the outstanding principal amount of any such
Acquisition Loan shall be converted or continued, the aggregate principal
amount of such Acquisition Loan converted or continued shall be an integral
multiple of $1,000,000, and not less than 1,000,000 Dollars, Euros or Pounds
Sterling as appropriate;
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(iii) if any Term SOFR or Eurocurrency Loan is converted at a time other
than the end of the Interest Period applicable thereto, the Company shall pay
any amounts due to the Lenders under
Section 5.10
;
(iv) any portion of a Borrowing required to be repaid in less than one
month may not be converted into or continued as a Term SOFR Borrowing,
Eurocurrency Borrowing or Pounds Sterling Borrowing, as the case may be;
(v) (A) any portion of a Term SOFR Borrowing that cannot be converted into
or continued as a Term SOFR 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 and (B) any portion of a
Eurocurrency Borrowing or Pounds Sterling Borrowing that cannot be continued
as such by reason of clause (iv) above shall be converted into a Borrowing at
a rate determined by the Alternative Currency Agent, in its sole discretion,
to be the then approximate equivalent of the rate previously being charged on
said Borrowing; and
(vi) 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 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 SOFR, Eurocurrency or Pounds Sterling 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 Term SOFR or Eurocurrency
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 Term SOFR or Eurocurrency Borrowing, the Company shall be deemed to have
selected an Interest Period of one (1) month's duration. The Agent or
Alternative Currency Agent, as applicable, shall promptly advise the other
Lenders of any notice given pursuant to this
Section 5.15(a)
and of each Lender's portion of any converted or continued Borrowing and the
applicable interest rate. If the Company shall not have given written notice
in accordance with this
Section 5.15(a)
to continue any Term SOFR or Eurocurrency 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 be automatically continued for an identical Interest Period to the one
expiring.
(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 (including via facsimile or email) to the Agent not later
than 11:00 a.m., Houston, Texas time, one Business Day prior to conversion or
continuation, to continue all or any portion of any Term SOFR Borrowing of any
Floor Plan Borrower as a Term SOFR Borrowing for an additional Interest
Period, unless a Floor Plan Event of Default has occurred and is continuing,
in which case, at its option, the Agent may require conversion to the
Alternate Base Rate subject in each case to the following:
(i) each conversion or continuation shall be made pro rata among the
Lenders, in accordance with each Lender's Pro Rata Share of Floor Plan Loan
Commitments;
(ii) intentionally omitted;
(iii) any portion of a Term SOFR Borrowing maturing or required to be
repaid in less than seven (7) days may not be converted into or continued as a
Term SOFR Borrowing;
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(iv) any portion of a Term SOFR Borrowing which cannot be converted into or
continued as a Term SOFR Borrowing by reason of clause (iii) above shall be
automatically converted at the end of the Interest Period in effect for such
Floor Plan Loan Borrowing into an Alternate Base Rate Loan; and
(v) 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 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
Term SOFR 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 Term SOFR 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 Term
SOFR Borrowing, the Company shall be deemed to have selected an Interest
Period of one (1) month's duration. The Agent shall promptly advise the other
Lenders of any notice given pursuant to this
Section 5.15(b)
and of each Lender'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 Term SOFR 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, at the end of the Interest Period applicable thereto
(unless repaid pursuant to the terms hereof), automatically be continued as a
Term SOFR Borrowing for an identical Interest Period to the one expiring.
Section 5.16
Extension of Maturity Date
.
(a) If no Default or Event of Default has occurred and is then continuing,
the Company may, by written notice to Agent (with sufficient copies for each
Lender) (which notice shall be irrevocable and which shall not be effective
unless actually received by Agent) prior to April 1, but not before March 1,
of each fiscal year, request that the Lenders extend the then applicable
Maturity Date to a date that is one year later than the Maturity Date then in
effect. Each Lender shall, no
t
later than April 30th of such fiscal year, give written notice to the Agent
stating whether such Lender is willing to extend the Maturity Date as
requested. If Agent has received the written approvals of such request from
each of the Lenders, then, effective upon the date of the Agent's receipt of
all such written approvals from the Lenders, the Maturity Date shall be so
extended for an additional one year period, the term "
Maturity Date
" means such extended date and the Agent shall promptly notify the Company and
the Lenders that such extension has occurred.
(b) If (i) any Lender gives the Agent written notice that it is unwilling
to extend the Maturity Date as requested or (ii) any Lender fails to provide
written approval to Agent of such a request on or before April 30 of such
fiscal year, then, subject to
Section 5.17(b)(iv)
, the Lenders shall be deemed to have declined to extend the Maturity Date,
and the then-current Maturity Date shall remain in effect.
Section 5.17
Mitigation Obligations; Replacement Lenders
.
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(a) Any Lender claiming any additional amounts payable pursuant to
Section 5.8
or
Section 5.14
or an illegality under
Section 5.9
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 or remove such illegality which may thereafter accrue
and would not, in the sole determination of such Lender, be otherwise
disadvantageous to such Lender. The Borrowers hereby agree to pay all
reasonable costs and expenses incurred by any Lender in connection with the
making of such a filing or change.
(b) If any Lender (i) makes a demand for compensation pursuant to
Section 5.8(a)
,
Section 5.8(b)
or
Section 5.8(c)
, (ii) notifies the Agent of the unlawfulness of such Lender making or
maintaining SOFR, Eurocurrency or Pounds Sterling Loans as provided in
Section 5.9
, (iii) requests the Borrowers to make payments for Taxes pursuant to
Section 5.14
, (iv) gives the Agent notice as provided in
Section 5.16(b)
that it is unwilling to extend the Maturity Date or fails to provide approval
of such extension or fails to approve any amendment, consent or waiver
requiring the approval of all Lenders but which has been approved by Lenders
having at least 80% of the Pro Rata Share of Total Commitments or (v) is a
Defaulting Lender, then in any such event the Company may, unless such Lender
has notified the Company that the circumstances giving rise to such event no
longer apply, terminate, in whole but not in part, the Commitments of such
Lender (the "
Terminated Lender
") at any time upon five Business Days' prior written notice to the Terminated
Lender and the Agent (such notice referred to herein as a "
Notice of Termination
").
(c) In order to effect the termination of the Commitments of a Terminated
Lender, the Company shall (i) obtain an agreement with one or more Lenders to
increase their Commitments, (ii) request any one or more other Persons to
become a "Lender" in place and instead of such Terminated Lender and agree to
accept its Commitments subject to the terms hereof or (iii) request a
reduction under
Section 5.5(a)
;
provided
, such one or more other such Persons are Eligible Assignees reasonably
acceptable to the Agent (such acceptance not to be unreasonably withheld or
delayed) and become parties by executing an Assignment and Acceptance (the
Lenders or other Persons that agree to accept in whole or in part the
Commitments being referred to herein as the "
Replacement Lenders
"), such that the aggregate increased and/or accepted Commitments of the
Replacement Lenders under clauses (i) and (ii) above equal the Commitments of
the Terminated Lenders;
provided
,
further
, that (A) in the case of any assignment to a Replacement Lender resulting
from a claim for compensation under
Section 5.8
or payments required to be made pursuant to
Section 5.14
, such assignment will result in a reduction in such compensation or payments
thereafter and (B) in the case of any assignment to a Replacement Lender
resulting from the circumstances described in
Section 5.17(b)(iv)
, such Replacement Lender shall have consented to the applicable extension,
amendment, consent or waiver.
(d) The Notice of Termination shall include the name of the Terminated
Lender, the date the termination will occur (the "
Termination Date
"), the Replacement Lender or Replacement Lenders to which the Terminated
Lender will assign its Commitments, and, if there will be more than one
Replacement Lender, the portion of the Terminated Lender's Commitments to be
assigned to each Replacement Lender.
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(e) On the Termination Date: (i) the Terminated Lender shall by execution
and delivery of an Assignment and Acceptance assign its Commitments to the
Replacement Lender or Replacement Lenders (pro rata, if there is more than one
Replacement Lender, in proportion to the portion of the Terminated Lender's
Commitments to be assigned to each Replacement Lender) indicated in the Notice
of Termination and shall assign to the Replacement Lender or Replacement
Lenders its then outstanding Loans so assigned then outstanding (pro rata as
aforesaid), (ii) the Terminated Lender shall endorse its applicable Note(s),
payable without recourse, representation or warranty to the Replacement Lender
or Replacement Lenders (pro rata as aforesaid), (iii) the Replacement Lender
or Replacement Lenders shall purchase the Note(s) held by the Terminated
Lender (pro rata as aforesaid) at a price equal to the unpaid principal amount
thereof plus interest and fees accrued and unpaid to the Termination Date,
(iv) the Company and each Borrower shall, upon request, execute and deliver,
at its own expense, new Notes to the Replacement Lenders in accordance with
their respective interests, (v) the Company shall, upon request, pay any
compensation or other amounts due to the Terminated Lender hereunder and (vi)
the Replacement Lender or Replacement Lenders will thereupon (pro rata as
aforesaid) succeed to and be substituted in all respects for the Terminated
Lender to the extent of such assignment from and after such date with the like
effect as if becoming a Lender pursuant to the terms of
Section 13.3
. To the extent not in conflict, the terms of
Section 13.3
shall supplement the provisions of this
Section 5.17
.
Section 5.18
Increase of Commitments
.
(a) At any time
on or
after the
Third Amendment
Closing Date, provided that no Event of Default shall have occurred and be
continuing, the Company may request an increase of the Total Commitment by
notice thereof to the Agent in writing (such notice, a "
Commitment Increase Notice
"), in an amount not less than $25,000,000 nor more than $
400,000,000
600,000,000
in the aggregate. The Agent will provide the Lenders with notice of such
Commitment Increase Notice. Such increase shall be allocated between the Total
Floor Plan Loan Commitment and Total Acquisition Loan Commitment as requested
by Borrower,
provided
, following any such increase, the Total Acquisition Loan Commitment shall not
exceed 40% of the Total Commitment. Any such Commitment Increase Notice shall
be in a form reasonably satisfactory to the Agent, and must offer each Lender
the opportunity to subscribe for its pro rata share of each increased
Commitment. If the Company does not receive either telephonic or written
notice from the Agent that all of the increased Commitment is subscribed for
by the Lenders within fifteen (15) Business Days after the delivery of the
Commitment Increase Notice, the Company may, in its sole discretion, but with
the consent of the Agent as to any Person that is not at such time a Lender,
offer to any existing Lender or to one or more additional banks or financial
institutions the opportunity to participate in all or a portion of such
unsubscribed portion of the increased Commitments pursuant to
Section 5.18(b)
or
Section 5.18(c)
, as applicable.
(b) Any additional bank or financial institution that the Company selects
to offer participation in the increased Commitments, and that elects to become
a party to this Agreement with the Company and the Agent (a "
New Lender
"), by the execution of an agreement (a "
New Lender Agreement
") substantially in the form of
Exhibit 5.18(b)
, shall become a Lender for all purposes and to the same extent as if
originally a party hereof and shall be bound by and entitled to the benefits
of this Agreement. The Commitment of any such New Lender shall be in an amount
not less than $10,000,000, and such Commitment must be comprised of both a
Floor Plan Loan Commitment and an Acquisition Loan Commitment, both in the
same ratio with respect to the Total Floor Plan Loan Commitment and the Total
Acquisition Loan Commitment. Upon delivery to the Agent of one or more New
Lender Agreements, the Agent shall enter such New Lender and its Commitment in
the Register and distribute a new
Schedule 1.1(a)
reflecting the Commitment of such New Lender and the Total Commitment, as
increased.
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(c) Any Lender that accepts an offer by the Company to increase its
Commitment pursuant to this
Section 5.18
shall, in each case, execute an agreement whereby it agrees to be bound by,
and accept the benefits of, this Agreement and the other Loan Documents (a "
Commitment Increase Agreement
") substantially in the form of
Exhibit 5.18(c)
, with the
Company
Borrowers
and the Agent. Upon delivery to the Agent of one or more Commitment Increase
Agreements, the Agent shall enter such Lender's increased Commitment in the
Register and distribute a new
Schedule 1.1(a)
reflecting the increased Commitment of such Lender and the Total Commitment,
as increased.
(d) The effectiveness of any Commitment Increase Agreement
or New Lender Agreement
shall be contingent upon receipt by the Agent of such corporate resolutions of
the Company and legal opinions of counsel to the Company as the Agent shall
reasonably request with respect thereto, in each case in form and substance
reasonably satisfactory to the Agent.
(e) Additional Loans made on or after the date that any bank or financial
institution becomes a New Lender pursuant to
Section 5.18(b)
or any Lender's Commitment is increased pursuant to
Section 5.18(c)
(the "
Re-Allocation Date
") shall be made pro rata based on the Lenders' respective Commitments in
effect on or after such Re-Allocation Date (except to the extent that any such
pro rata borrowings would result in any Lender making an aggregate principal
amount of Loans in excess of its Commitment, in which case such excess amount
will be allocated to, and made by, such New Lender and/or Lenders with such
increased Commitments to the extent of, and pro rata based on, their
respective Commitments), and continuations of any Loans subject to an Interest
Period outstanding on such Re-Allocation Date shall be effected by repayment
of such Loans on the last day of the Interest Period applicable thereto and
the making of new Loans pro rata based on the respective Commitments in effect
on and after such Re-Allocation Date. In the event that on any such
Re-Allocation Date there is an unpaid principal amount of any Loans subject to
an Interest Period, such Loans shall remain outstanding with the respective
holders thereof until the expiration of their respective Interest Periods
(unless the Company elects to prepay any thereof in accordance with the
applicable provisions of this Agreement), and interest on and repayments of
such Loans will be paid thereon to the respective Lenders holding such Loans
pro rata based on the respective principal amounts thereof outstanding.
(f) Notwithstanding anything to the contrary in this
Section 5.18
, (i) no Lender shall have any obligation to increase its Commitment unless it
agrees to do so in its sole discretion and (ii) after giving effect to any
increase in the Commitments pursuant to this
Section 5.18
, the aggregate amount of the Commitments shall not exceed $
2,400,000,000
3,000,000,000
.
(g)
The
On or following a Re-Allocation Date, the
Company shall execute and deliver
a Note or
Notes to
each
any
New Lender and replacement Notes to
any
Lender
s
signing a Commitment Increase Agreement in the amount of said Persons'
Commitments
, if requested by such Person
.
Section 5.19
Cash Collateral
. At any time that there shall exist a Defaulting Lender, within one Business
Day following the written request of the Agent or any Issuing Bank (with a
copy to the Agent) the Company shall Cash Collateralize the Issuing Bank's
Fronting Exposure with respect to such Defaulting Lender (determined after
giving effect to
Section 5.20(a)(iv)
and any Cash Collateral provided by such Defaulting Lender) in an amount equal
to the Fronting Exposure at such time. In the event the Company Cash
Collateralizes the Swing Line Bank's Fronting Exposure with respect to such
Defaulting Lender as contemplated by
Section 5.20(a)(v)
, the provisions of this
Section 5.19
shall apply equally to such Cash Collateral for the benefit of the Swing Line
Bank and its Fronting Exposure with respect to such Defaulting Lender.
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(a) The Company, and to the extent provided by any Defaulting Lender, such
Defaulting Lender, hereby grants to the Agent, for the benefit of the Issuing
Banks, and agrees to maintain, a first priority security interest in all such
Cash Collateral as security for the Defaulting Lenders' obligation to fund
participations in respect of Letters of Credit, to be applied pursuant to
clause
(b)
below. If at any time the Agent determines that Cash Collateral is subject to
any right or claim of any Person other than the Agent and the Issuing Banks as
herein provided, or that the total amount of such Cash Collateral is less than
the Fronting Exposure as of such date, the Company will, promptly upon demand
by the Agent, pay or provide to the Agent additional Cash Collateral in an
amount sufficient to eliminate such deficiency (after giving effect to any
Cash Collateral provided by the Defaulting Lender).
(b)
Application
. Notwithstanding anything to the contrary contained in this Agreement, Cash
Collateral provided under this
Section 5.19
or
Section 5.20
in respect of Letters of Credit shall be applied to the satisfaction of the
Defaulting Lender's obligation to fund participations in respect of Letters of
Credit (including, as to Cash Collateral provided by a Defaulting Lender, any
interest accrued on such obligation) for which the Cash Collateral was so
provided, prior to any other application of such property as may otherwise be
provided for herein.
(c)
Termination of Requirement
. Cash Collateral (or the appropriate portion thereof) provided to reduce any
Issuing Bank's Fronting Exposure shall no longer be required to be held as
Cash Collateral pursuant to this
Section 5.19
following (i) the elimination of the applicable Fronting Exposure (including
by the termination of Defaulting Lender status of the applicable Lender), or
(ii) the determination by the Agent and each Issuing Bank that there exists
excess Cash Collateral;
provided
that, subject to
Section 5.20
, the Person providing Cash Collateral and each Issuing Bank may agree that
Cash Collateral shall be held to support future anticipated Fronting Exposure
or other obligations.
Section 5.20
Defaulting Lenders
.
(a)
Defaulting Lender Adjustments
. Notwithstanding anything to the contrary contained in this Agreement, if any
Lender becomes a Defaulting Lender, then, until such time as such Lender is no
longer a Defaulting Lender, to the extent permitted by applicable Law:
(i)
Waivers and Amendments
. Such Defaulting Lender's right to approve or disapprove any amendment,
waiver or consent with respect to this Agreement shall be restricted as set
forth in the definitions of Pro Rata Share of Acquisition Loan Commitments,
Pro Rata Share of Floor Plan Loan Commitments, Pro Rata Share of Total
Commitments and Required Lenders and the last sentence of
Section 13.7(b)
.
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(ii)
Defaulting Lender Waterfall
. Any payment of principal, interest, fees or other amounts received by the
Agent or the Floor Plan Agent for the account of such Defaulting Lender
(whether voluntary or mandatory, at maturity, pursuant to
Article XI
or otherwise) or received by the Agent from a Defaulting Lender pursuant to
Section 13.5
shall be applied at such time or times as may be determined by the Agent as
follows:
first
, to the payment of any amounts owing by such Defaulting Lender to the Agent
and the Floor Plan Agent hereunder;
second
, to the payment on a pro rata basis of any amounts owing by such Defaulting
Lender to any Issuing Bank or the Swing Line Bank hereunder;
third
, to Cash Collateralize the Issuing Banks' Fronting Exposure with respect to
such Defaulting Lender in accordance with
Section 5.19
;
fourth
, as the Company may request (so long as no Default or Event of Default
exists), to the funding of any Loan in respect of which such Defaulting Lender
has failed to fund its portion thereof as required by this Agreement, as
determined by the Agent;
fifth
, if so determined by the Agent and the Company, to be held in a deposit
account and released pro rata in order to (x) satisfy such Defaulting Lender's
potential future funding obligations with respect to Loans under this
Agreement and (y) Cash Collateralize the Issuing Banks' future Fronting
Exposure with respect to such Defaulting Lender with respect to future Letters
of Credit issued under this Agreement, in accordance with
Section 5.19
;
sixth
, to the payment of any amounts owing to the Lenders, the Issuing Banks or the
Swing Line Bank as a result of any judgment of a court of competent
jurisdiction obtained by any Lender, any Issuing Bank or the Swing Line Bank
against such Defaulting Lender as a result of such Defaulting Lender's breach
of its obligations under this Agreement;
seventh
, so long as no Default or Event of Default exists, to the payment of any
amounts owing to the Company as a result of any judgment of a court of
competent jurisdiction obtained by the Company against such Defaulting Lender
as a result of such Defaulting Lender's breach of its obligations under this
Agreement; and
eighth
, to such Defaulting Lender or as otherwise directed by a court of competent
jurisdiction;
provided
that if (x) such payment is a payment of the principal amount of any Loans in
respect of which such Defaulting Lender has not fully funded its appropriate
share or Letter of Credit Advances in respect of which such Defaulting Lender
has not funded the appropriate amount, and (y) such Loans were made or the
related Letters of Credit were issued at a time when the conditions set forth
in
Section 8.3
were satisfied or waived, such payment shall be applied solely to pay the
Loans of, and Letter of Credit Advances owed to, all Non-Defaulting Lenders on
a pro rata basis prior to being applied to the payment of any Loans of, or
Letter of Credit Advances owed to, such Defaulting Lender until such time as
all Loans and funded and unfunded participations in Letters of Credit and
Swing Line Loans are held by the Lenders pro rata in accordance with the
respective Commitments without giving effect to
Section 5.20(a)(iv)
. Any payments, prepayments or other amounts paid or payable to a Defaulting
Lender that are applied (or held) to pay amounts owed by a Defaulting Lender
or to post Cash Collateral pursuant to this
Section 5.20
shall be deemed paid to and redirected by such Defaulting Lender, and each
Lender irrevocably consents hereto.
(iii)
Certain Fees
.
(A) No Defaulting Lender shall be entitled to receive any Commitment Fees
pursuant to
Section 5.4(a)
for any period during which that Lender is a Defaulting Lender (and the
Company shall not be required to pay any such fee that otherwise would have
been required to have been paid to that Defaulting Lender).
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(B) Each Defaulting Lender shall be entitled to receive Letter of Credit
Fees pursuant to
Section 6.7(a)
for any period during which that Lender is a Defaulting Lender only to the
extent allocable to its pro rata share of the stated amount of Letters of
Credit for which it has provided Cash Collateral pursuant to
Section 5.19
.
(C) With respect to any Letter of Credit Fee not required to be paid to any
Defaulting Lender pursuant to clause (B) above, the Company shall (x) pay to
each Non-Defaulting Lender that portion of any such fee otherwise payable to
such Defaulting Lender with respect to such Defaulting Lender's participation
in Letters of Credit or Swing Line Loans that has been reallocated to such
Non-Defaulting Lender pursuant to clause (iv) below, (y) pay to each Issuing
Bank and the Swing Line Bank, as applicable, the amount of any such fee
otherwise payable to such Defaulting Lender to the extent allocable to such
Issuing Bank's or the Swing Line Bank's Fronting Exposure to such Defaulting
Lender, and (z) not be required to pay the remaining amount of any such fee.
(iv)
Reallocation of Participations to Reduce Fronting Exposure
. All or any part of such Defaulting Lender's Letter of Credit Exposure and
Swing Line Exposure shall be reallocated among the Non-Defaulting Lenders in
accordance with (A) their respective Pro Rata Shares of Acquisition Loan
Commitments in the case of such Letter of Credit Exposure and (B) their
respective Pro Rata Shares of Floor Plan Loan Commitments in the case of such
Swing Line Exposure (in each case, calculated without regard to such
Defaulting Lender's Commitments) but only to the extent that such reallocation
does not cause (1) the sum of all Non-Defaulting Lenders' outstanding Loans,
Swing Line Exposure and Letter of Credit Exposure plus such Defaulting
Lender's Swing Line Exposure and Letter of Credit Exposure to exceed the total
of all Non-Defaulting Lenders' Commitments and (2) any Non-Defaulting Lender's
outstanding Loans, Swingline Exposure and Letter of Credit Exposure to exceed
such Non-Defaulting Lender's Commitment. Subject to Section
13.21
, no reallocation hereunder shall constitute a waiver or release of any claim
of any party hereunder against a Defaulting Lender arising from that Lender
having become a Defaulting Lender, including any claim of a Non-Defaulting
Lender as a result of such Non-Defaulting Lender's increased exposure
following such reallocation.
(v)
Cash Collateral; Repayment of Swing Line Loans
. If the reallocation described in clause (iv) above cannot, or can only
partially, be effected, the Company shall, within one Business Day following
notice by the Agent (at its discretion, or acting at the request of the Swing
Line Bank or any Issuing Bank), without prejudice to any right or remedy
available to it hereunder or under law, (x) first, Cash Collateralize or
prepay Swing Line Loans in an amount equal to the Swing Line Bank's Fronting
Exposure and (y) second, Cash Collateralize the Issuing Banks' Fronting
Exposure in accordance with the procedures set forth in
Section 5.19
.
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(b)
Defaulting Lender Cure
. If the Company, the Agent, the Floor Plan Agent, the Swing Line Bank and
each Issuing Bank agree in writing that a Lender is no longer a Defaulting
Lender, the Agent will so notify the parties hereto, whereupon as of the
effective date specified in such notice and subject to any conditions set
forth therein (which may include arrangements with respect to any Cash
Collateral), that Lender will, to the extent applicable, purchase at par that
portion of outstanding Loans of the other Lenders or take such other actions
as the Agent may determine to be necessary to cause the Loans, Letter of
Credit Exposure and Swing Line Exposure to be held pro rata by the Lenders in
accordance with the respective Commitments (without giving effect to
Section 5.20(a)(iv)
), whereupon such Lender will cease to be a Defaulting Lender;
provided
that no adjustments will be made retroactively with respect to fees accrued or
payments made by or on behalf of the Company while that Lender was a
Defaulting Lender; and
provided
,
further
, that except to the extent otherwise expressly agreed by the affected
parties, no change hereunder from Defaulting Lender to Lender will constitute
a waiver or release of any claim of any party hereunder arising from that
Lender's having been a Defaulting Lender.
(c)
New Swing Line Loans/Letters of Credit
. So long as any Lender is a Defaulting Lender, (i) the Swing Line Bank shall
not be required to fund any Swing Line Loans unless it is satisfied that it
will have no Fronting Exposure with respect to such Defaulting Lender, after
giving effect to such Swing Line Loan and (ii) no Issuing Bank shall be
required to issue, extend, renew or increase any Letter of Credit unless it is
satisfied that it will have no Fronting Exposure with respect to such
Defaulting Lender after giving effect thereto.
ARTICLE VI
LETTERS OF CREDIT
Section 6.1
General
.
(a) On the terms and conditions set forth herein (i) each Issuing Bank
severally agrees from time to time on any Business Day during the period from
the Closing Date to the Business Day which is thirty (30) days prior to the
Maturity Date (the "
Letter of Credit Termination Date
") to Issue one or more Letter or Letters of Credit for the account of any
Borrower; and (ii) the Acquisition Loan Lenders severally agree to participate
in such Letters of Credit;
provided
, that no Issuing Bank shall be obligated to Issue, and no Lender shall be
obligated to participate in, any Letter of Credit if, as of the date of
request of such Letter of Credit, after giving effect to the maximum amount
payable under such Letter of Credit, (A) the aggregate principal amount of all
Letter of Credit Obligations outstanding shall at any time exceed the
aggregate Letter of Credit Commitments of all Issuing Banks, (B) the aggregate
principal amount of all Letter of Credit Obligations outstanding in respect of
Letters of Credit Issued by such Issuing Bank shall at any time exceed such
Issuing Bank's Letter of Credit Commitment or (C) the aggregate principal
amount of Acquisition Loans outstanding, plus the Letter of Credit Obligations
outstanding as of such day, shall exceed the Acquisition Loan Advance Limit.
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, prior to the Letter of
Credit Termination Date, obtain Letters of Credit to replace Letters of Credit
which have expired or which have been drawn upon and reimbursed.
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(b) No Issuing Bank is under any obligation to Issue any Letter of Credit
if: (i) any order, judgment or decree of any Governmental Authority shall by
its terms purport to enjoin or restrain such Issuing Bank from Issuing such
Letter of Credit, or any Requirement of Law applicable to such Issuing Bank or
any request or directive (whether or not having the force of law) from any
Governmental Authority with jurisdiction over such Issuing Bank shall prohibit
such Issuing Bank, or request that such Issuing Bank refrain, from the
Issuance of Letters of Credit generally or such Letter of Credit in particular
or shall impose upon such Issuing Bank with respect to such Letter of Credit
any restriction, reserve or capital requirement (for which such Issuing Bank
is not otherwise compensated hereunder) not in effect on the Closing Date, or
shall impose upon such Issuing Bank any unreimbursed loss, cost or expense
(for which such Issuing Bank is not otherwise compensated hereunder) which was
not applicable on the Closing Date and which such Issuing Bank in good faith
deems material to it; (ii) such Issuing Bank has received written notice from
any Lender, the Agent or any Borrower, on or before the Business Day prior to
the requested date of Issuance of such Letter of Credit, that one or more of
the conditions contained in
Section 8.3
in respect of Acquisition Loans is not then satisfied; (iii) the expiration
date of any requested Letter of Credit is more than one (1) year from the date
of Issuance thereof or after the Maturity Date; or (iv) any requested Letter
of Credit is not in form and substance reasonably acceptable to such Issuing
Bank, or the Issuance of such Letter of Credit shall violate any applicable
policies of such Issuing Bank or, the Issuance of a Letter of Credit is for an
amount less than $100,000 or to be denominated in a currency other than
Dollars.
Section 6.2
Issuance, Amendment and Renewal of Letters of Credit
.
(a) Each Letter of Credit shall be issued upon the irrevocable written
request of the Company received by the relevant Issuing Bank (with a copy sent
by any Borrower to the Agent) at least three (3) Business Days (or such
shorter time as the relevant 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 writing, in the form of a Letter of Credit Application. Each
Letter of Credit (i) will be for the account of such Borrower, (ii) will be a
non-transferable standby letter of credit to support certain payment or
performance obligations of such Borrower, (iii) will be for purposes
reasonably satisfactory to the relevant Issuing Bank and (iv) will contain
such terms and provisions as may be customarily required by the relevant
Issuing Bank.
(b) Prior to the Issuance of any Letter of Credit, the relevant 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, such Issuing Bank will
provide the Agent with a copy thereof. Unless the relevant Issuing Bank (i)
has received notice prior to its Issuance of a requested Letter of Credit from
the Agent (A) directing such Issuing Bank not to Issue such Letter of Credit
because such Issuance is not then permitted under this
Section 6.2
, or (B) that one or more conditions specified in
Article VIII
are not then satisfied or waived or (ii) is otherwise not obligated to issue
such Letter of Credit under
Section 6.1
, then, subject to the terms and conditions hereof, such Issuing Bank shall,
on the requested date, Issue a Letter of Credit for the account of such
Borrower in accordance with such Issuing Bank's usual and customary business
practices.
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(c) From time to time while a Letter of Credit is outstanding and prior to
the Letter of Credit Termination Date, the relevant Issuing Bank will, upon
the written request of any Borrower received by such Issuing Bank (with a copy
sent by the Borrower to the Agent) at least three (3) Business Days (or such
shorter time as such 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
relevant Issuing Bank shall require. No Issuing Bank shall be under any
obligation to amend or extend the expiry date any Letter of Credit if: (i)
such 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 relevant Issuing Bank, the Agent will
promptly notify the Lenders of the Issuance of a Letter of Credit and any
amendment or extension thereto.
(e) If any outstanding Letter of Credit shall provide that it shall be
automatically renewed unless the beneficiary thereof receives notice from the
relevant Issuing Bank that such Letter of Credit shall not be renewed, the
relevant Issuing Bank shall be permitted to allow such Letter of Credit to
renew, and the Borrowers and the Lenders hereby authorize such renewal. The
relevant Issuing Bank shall not be obligated to allow such Letter of Credit to
renew if such Issuing Bank would have no obligation at such time to Issue or
amend such Letter of Credit under the terms of this Agreement.
(f) Any Issuing Bank may, at its election (or as required by the Agent at
the direction of the Required Lenders), deliver any notices of termination or
other communications to any Letter of Credit beneficiary or transferee, and
take any other action as necessary or appropriate, at any time and from time
to time, in order to cause the expiration date of any Letter of Credit to be a
date not later than the Maturity Date.
(g) This Agreement shall control in the event of any conflict with any
Letter of Credit Related Document.
(h) Each 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 Acquisition
Loan Lenders hereby irrevocably and unconditionally agree to, and hereby,
purchase from the relevant Issuing Bank participation interests in such
Letters of Credit and each drawing thereunder, ratably in amounts equal to the
product of (i) each such Lender'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 Acquisition Loan Lender by an amount equal to the amount of such
participation (including for the purpose of calculating fees payable pursuant
to
Section 5.4
).
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(b) In the event of any request for a drawing under a Letter of Credit by
the beneficiary or transferee thereof, the relevant 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 relevant
Issuing Bank will give such notice to the Company at least one Business Day
prior to the Honor Date. The Company shall reimburse the relevant Issuing Bank
prior to 11:00 a.m., Houston, Texas time, on each date that any amount is paid
by such Issuing Bank under any Letter of Credit (each such date, an "
Honor Date
") in an amount equal to the amount so paid by such Issuing Bank. In the event
the Company fails to reimburse the relevant 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, such Issuing Bank will promptly notify the Agent and the
Agent will promptly notify each Lender thereof, and the Company shall be
deemed to have requested an Alternate Base Rate Loan that is an Acquisition
Loan be made by the Lenders 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. Any notice given by an 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 Acquisition Loan Lenders shall, subject to the conditions set forth
in
Article VII
, 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 relevant Issuing Bank an
amount in Dollars and in immediately available funds equal to the amount of
the drawing, whereupon the Lenders shall each be deemed to have made an
Acquisition Loan consisting of an Alternate Base Rate Loan to the applicable
Borrower in that amount. If any Acquisition Loan Lender so notified fails to
make available to the Agent for the account of the relevant Issuing Bank said
amount by no later than 12:00 noon, Houston, Texas time, on the Honor Date,
then interest shall accrue on such Lender's obligation to make such payment,
from the Honor Date to the date such Lender makes such payment, at the rate
per annum equal to the Federal Funds Effective Rate in effect from time to
time during such period. The Agent will promptly give notice to each Lender of
the occurrence of any Honor Date, but failure of the Agent to give any such
notice on the Honor Date or in sufficient time to enable any Lender to effect
such payment on such date shall not relieve such Lender from its obligations
under this
Section 6.3
.
(d) With respect to any unreimbursed drawing that is not converted into an
Alternate Base Rate Loan 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
relevant 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 Lender's
payment to such Issuing Bank pursuant to
Section 6.3(b)
shall constitute payment in respect of its participation in such Letter of
Credit Borrowing and shall constitute a Letter of Credit Advance from such
Lender in satisfaction of its participation obligation under this
Section 6.3
.
(e) Each Acquisition Loan Lender'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 relevant Issuing Bank and shall not
be affected by any circumstance, including (i) any set-off, counterclaim,
recoupment, defense or other right which such Lender may have against such
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.
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Section 6.4
Repayment of Participation
.
(a) When the Agent receives (and only if the Agent receives), for the
account of an Issuing Bank, immediately available funds from the Borrowers (i)
in respect of which any Acquisition Loan Lender has paid the Agent for the
account of such Issuing Bank for such Lender'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 Lender, in
the same funds as those received by the Agent for the account of such Issuing
Bank, the amount of such funds attributable to each such Lender and such
Issuing Bank shall receive and retain the amount of such funds attributable to
any Lender that did not so pay the Agent for the account of such Issuing Bank.
(b) If the Agent or an 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 such 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 Acquisition Loan Lenders shall, on demand of the
Agent, in accordance with each Lender's Pro Rata Share of Acquisition Loan
Commitments, forthwith return to the Agent or such Issuing Bank the amount so
returned by the Agent or such Issuing Bank plus interest thereon from the date
such demand is made to the date such amounts are returned by such Lender to
the Agent or such Issuing Bank, at a rate per annum equal to the Federal Funds
Effective Rate in effect from time to time.
Section 6.5
Role of the Issuing Bank
.
(a) Each Lender and each Borrower agree that, in paying any drawing under a
Letter of Credit, the relevant 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) No Issuing Bank, nor any of its correspondents, participants or
assignees shall be liable to any Lender for: (i) any action taken or omitted
in connection herewith at the request or with the approval of the Lenders
(including the Required Lenders, 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.
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(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 willful misconduct
of an Issuing Bank. No Issuing Bank, nor any correspondents, participants or
assignees of any 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 an Issuing Bank, and an 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 such 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) each 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) no Issuing
Bank shall 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.
Section 6.6
Obligations Absolute
. The Obligations of the Borrowers under this Agreement and any Letter of
Credit Related Document to reimburse the relevant 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: (a) any lack of
validity or enforceability of this Agreement or any Letter of Credit Related
Document; (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
Letter of Credit; (c) 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), such 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 willful misconduct of such Issuing Bank;
(d) 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; (e) any payment by such
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 such 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; (f) 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 (g) any
other circumstance that might otherwise constitute a defense available to, or
discharge of, any Borrower.
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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
Acquisition Loan Lenders 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) (A) the lesser of (x) the Applicable Margin for SOFR Loans that
are Acquisition Loans or (y) one and one half percent (1.50%) per annum
multiplied by the average daily maximum amount potentially available to be
drawn on such outstanding Letters of Credit at any time during the term
thereof up to an aggregate face amount of $15,000,000, and (B) the Applicable
Margin for SOFR Loans that are Acquisition Loans for the daily average face
amount available in excess of $15,000,000.
(b)
Fronting Fees
. The Company shall pay to each Issuing Bank for its own account a letter of
credit fronting fee (the "
Fronting Fees
") for each Letter of Credit Issued by such Issuing Bank equal to one hundred
twenty-five-one-thousandths percent (0.125%) per annum multiplied by the
maximum amount potentially available to be drawn on such outstanding Letters
of Credit at any time during the term thereof.
(c)
Calculation of Fees
. The Letter of Credit Fees and the Fronting Fees each shall be computed on a
quarterly basis in arrears within three Business Days after the last 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 each Issuing Bank from time to time on demand the
normal issuance, presentation, amendment and other processing fees, and other
standard costs and charges of such Issuing Bank relating to Letters of Credit
Issued by such Issuing Bank as from time to time in effect.
Section 6.8
Cash Collateralization
.
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(a) If any Event of Default shall occur and be continuing, or the Total
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 Lenders, it will immediately repay in full all
Swing Line Overdraft Loans and, after making such payment, deposit in an
account (the "
Cash Collateral Account
") held by the Agent, for the benefit of the Acquisition Loan Lenders, 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. Funds in
the Cash Collateral Account 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 outstanding reimbursement Obligations
in respect of Letters of Credit and interest thereon, (ii) be held for the
satisfaction of future 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 Lenders, be applied to
satisfy the Obligations. If the Company shall provide Cash Collateral under
this
Section 6.8(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 Lenders 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 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.
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ARTICLE VII
REPRESENTATIONS AND WARRANTIES
The Company, as to itself and as to each of its Subsidiaries 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 Lenders as follows:
Section 7.1
Organization; Corporate Powers
. The Company and each of its Subsidiaries is duly organized only under the
laws of the state (or in the case of Unrestricted Subsidiaries, the country)
of its incorporation and each Restricted Subsidiary is 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 Restricted 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 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 other Borrower 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 Borrower, (B)
any order of any court, or any rule, regulation or order of any other agency
of government binding upon the Company or any other Borrower or (C) any
provisions of any indenture, agreement or other instrument to which the
Company or any other Borrower is a party, or by which the Company or any other
Borrower 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 other Borrower other than under the Loan
Documents.
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 Document, the execution and delivery of the Notes 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, 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
.
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(a) The audited consolidated financial statement of the Company and its
Subsidiaries, as of December 31, 2021, a copy of which has been furnished to
the Lenders, has been prepared in conformity with GAAP applied on a basis
consistent with that of the preceding fiscal year, and presents fairly in all
material respects the financial condition of the Company and its Subsidiaries,
as at such date, and the consolidated results of the operations of the Company
and its Subsidiaries for the period then ended.
(b) The Form 10-K of the Company for the fiscal year ended December 31,
2021, a copy of which has been furnished to the Lenders, has been prepared in
accordance with all applicable rules, regulations and guidelines of the
Securities and Exchange Commission and presents fairly in all material
respects the financial condition of the Company and its Subsidiaries, as at
such date, and the results of their operations for the periods then ended.
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, 2021.
Section 7.7
Title to Properties; Security Documents
.
(a) Each Borrower has good and marketable title to, or valid leasehold
interests in, all its properties and assets, 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) Permitted Liens, and
(iii) minor defects in title that do not interfere with the ability of such
Borrower to conduct its business as now conducted.
(b) The Security Documents contain descriptions of the Collateral
sufficient to grant to the Agent for the benefit of the Secured Parties,
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 7.8(a)
, at law or in equity or by or before any Governmental Authority now pending
or, to the knowledge of any of the Borrowers, threatened against or affecting
any of the Borrowers or the business, assets or rights of any of the Borrowers
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) (i) None of the Borrowers is in violation of any law, the breach or
consequence of which could reasonably be expected to have a Material Adverse
Effect, (ii) to the best knowledge of the Borrowers after due investigation,
the Borrowers are in material compliance with all statutes and governmental
rules and regulations applicable to them, and (iii) none of the Borrowers is
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.
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.
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Section 7.9
Agreements; No Default
.
(a) None of the Borrowers 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 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 GAAP 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 could reasonably be expected to have a
Material Adverse Effect.
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Section 7.12
Pension and Welfare Plans
. Except for matters that could not reasonably be expected to have a Material
Adverse Effect: (a) each Plan complies in all respects with all applicable
statutes and governmental rules and regulations; (b) no Reportable Event has
occurred and is continuing with respect to any Plan; (c) since December 31,
2009, neither the Company nor any ERISA Affiliate has withdrawn from any
Multiemployer Plan or instituted steps to do so, except as listed on
Schedule 7.12
; and (d) since December 31, 2009, no steps have been instituted to terminate
any Plan, except as listed on
Schedule 7.12
. 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. Except for circumstances that could not
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 which could reasonably be expected to
have a Material Adverse Effect. Except for matters that could not reasonably
be expected to have a Material Adverse Effect, neither the Company nor any
ERISA Affiliate has any liability under Section 4201 or 4243 of ERISA for any
withdrawal, partial withdrawal, reorganization or other event under any
Multiemployer Plan.. No ERISA Event has occurred or is reasonably expected to
occur that, when taken together with all other such ERISA Events for which
liability is reasonably expected to occur, could reasonably be expected to
result in a Material Adverse Effect.
Section 7.13
No Material Misstatements
. As of the Closing Date, 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
. 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 1940.
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 Borrower 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 GAAP are being maintained;
(b) carriers', warehousemen's, mechanics', materialmen's, landlord's and
other like statutory or contractual 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 GAAP are being maintained;
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(c) pledges or deposits in connection with workers' compensation,
unemployment insurance and other social security legislation and to secure
performance of tenders, statutory obligations, surety and appeal bonds and
similar obligations;
(d) deposits to secure the performance of bids, trade contracts, statutory
obligations, lease 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) zoning, easements and restrictions on the use of real property that do
not materially impair the use for such property;
(f) 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;
(g) Liens, if any, disclosed in the financial statements referred to in
Section 7.5
;
(h) Liens listed on
Schedule 7.16(h)
and Liens permitted by
Section 10.2
; and
(i) Liens arising by virtue of statutory, common law or contractual
provisions relating to banker's liens, rights of set-off or similar rights and
remedies and burdening only deposit, brokerage and similar accounts (or funds,
securities or other assets maintained therein) with a creditor depository or
similar institution.
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
Restricted 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 Restricted
Subsidiaries nor any of its facilities manages any 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.
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Section 7.18
Subsidiaries
. As of the Closing Date, (i) the Company has no Restricted Subsidiaries, and
no Restricted Subsidiary has a Restricted Subsidiary other than those
specifically disclosed in part (a) of
Schedule 7.18
, (ii) neither the Company nor any Restricted Subsidiary has any equity
investments in any other Person other than those specifically disclosed in
part (b) of
Schedule 7.18
, and (iii) all of the Restricted Subsidiaries of the Company (other than
those listed in
Section 9.16(c)
) are parties hereto and fully liable hereunder to the extent set forth
herein. The state of incorporation or formation, the address, principal place
of business and a list of other business locations where a material portion of
its Motor Vehicles are located for each Restricted Subsidiary are specified in
part (a) of
Schedule 7.18
. The Company and/or each of its Restricted Subsidiaries is the owner,
directly or indirectly, free and clear of all Liens (except for Liens in favor
of the Agent and the Lenders and transfer restrictions contained in the
Dealer/Manufacturer Agreements), of all of the issued and outstanding voting
stock of each Restricted Subsidiary disclosed on
Schedule 7.18
(except where ownership of less than one hundred percent (100%) is indicated on
Schedule 7.18
). All shares of such stock of corporate entities 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 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 claims the aggregate amount of which
shall not be material). Except as permitted by
Section 7.16(h)
, 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
Secured Parties covering all such Motor Vehicles. 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 7.18
are the primary locations at which the Company and each other Borrower keep
the Motor Vehicles held as inventory, except off-site storage or parking and
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 7.18
are each Floor Plan Borrower's place of business and the Company and each
other Borrower is formed or incorporated only in the state shown for it on
Schedule 7.18
hereto. All of each Floor Plan Borrower's books and records with regard to all
Motor Vehicles are maintained and kept at the address(es) of such Floor Plan
Borrower set forth in
Schedule 7.18
.
Section 7.20
Dealer Franchise Agreements and Manufacturer Framework Agreements
. As of the Closing Date, none of the Borrowers is a party to any dealer
franchise agreements, manufacturer framework agreements, or any other similar
agreements, including any master agreements between the Borrowers and any
Manufacturer ("
Dealer/Manufacturer Agreements
") other than those specifically disclosed in
Schedule 7.20
, 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/Manufacturer
Agreements is currently in full force and effect as of the Closing Date, and
no such agreement has been terminated by a final non-appealable decision by a
court of competent jurisdiction. 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.
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Section 7.21
Use of Proceeds
. The proceeds of the Loans shall be used to support the issuance of Letters
of Credit, for working capital and general corporate purposes and for
acquisitions and capital expenditures, all in accordance with the provisions of
Section 9.9
. Neither Agent nor any Lender shall have any responsibility as to the use of
any Letter of Credit or any proceeds of the Loans. The Borrowers represent and
warrant to the Lenders and the Agent that all Loans will be for business,
commercial, investment or other similar purpose and not primarily for
personal, family, household or agricultural use, as such terms are used in the
Texas Finance Code.
Section 7.22
Sanctions; Anti-Corruption Laws
. The Company has implemented and maintains in effect policies and procedures
designed to ensure compliance by the Company, its Subsidiaries and their
respective directors, officers, employees and agents with Anti-Corruption Laws
and applicable Sanctions, and the Company and its Subsidiaries and their
respective officers and directors and to the knowledge of the Company its
employees and agents, are in compliance with Anti-Corruption Laws and
applicable Sanctions in all material respects. None of (a) the Company, any
Subsidiary or to the knowledge of the Company or such Subsidiary any of their
respective directors, officers or employees, or (b) to the knowledge of the
Company, any agent of the Company or any Subsidiary that will act in any
capacity in connection with or benefit from the credit facility established
hereby, is an individual or entity that is, or is 50% or more owned
(individually or in the aggregate, directly or indirectly) or controlled by
individuals or entities (including any agency, political subdivision or
instrumentality of any government) that are (a) the target of any Sanctions or
(b) located, organized or resident in a country or territory that is the
subject of Sanctions (currently Crimea, Cuba, Iran, North Korea, Syria, the
so-called Donetsk People's Republic, the so-called Luhansk People's Republic,
the Kherson Region of Ukraine, and the Zaporizhzhia Region of Ukraine). No
Borrowing or Letter of Credit, use of proceeds or other transaction
contemplated by this Agreement will violate any Anti-Corruption Law or
applicable Sanctions. For purposes of determining whether or not a
representation is true or a covenant is being complied with under this
Section 7.22
, the Company shall not be required to make any investigation into (a) the
ownership of publicly traded stock or other publicly traded securities or (b)
the beneficial ownership of any collective investment fund.
Section 7.23
Affected Financial Institutions
. Neither the Company nor any Restricted Subsidiary is an Affected Financial
Institution.
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ARTICLE VIII
CONDITIONS OF LENDING
Section 8.1
Conditions Precedent to Closing Date
. The conditions precedent to closing on the Closing Date shall be the
execution, where applicable, and delivery to the Agent of the items described
in this
Section 8.1
, each dated (unless otherwise indicated) the Closing Date and, with
sufficient copies for each Lender:
(a) from each Borrower:
(i) 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, the Issuing Banks and the Lenders;
(ii) Notes properly executed by the Borrowers to the Lenders, respectively;
and
(iii) the Swing Line Note properly executed by the Borrowers to the Swing
Line Bank;
(iv) the Security Agreement;
(v) the Escrow and Security Agreement;
(vi) the GM Borrower Guaranty; and
(vii) 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.
(b) from each Borrower (i) a certificate of the Secretary or an Assistant
Secretary of said Borrower, certifying that (A) attached are true and complete
copies of its constituent documents or that such documents have been provided,
(B) attached thereto is a true and complete copy of resolutions or unanimous
consent duly adopted by its Board of Directors, members or partners
authorizing the execution, delivery and performance of this Agreement, the
Notes 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,
or that such documents have been provided, and (C) as to the incumbency and
specimen signature of each officer of each Borrower executing this Agreement,
the Notes, any of the Loan Documents or other documents delivered in
connection herewith or therewith; and (ii) such other documents as the Agent
may reasonably request.
(c) from each Borrower a certificate of a President, Senior Vice President,
an Executive Vice President or a Vice President of each Borrower 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.
(d) the Agent's Letter duly executed by the Company.
(e) the Floor Plan Agent's Letter duly executed by the Company.
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(f) an opinion of counsel to the Borrowers and any Subsidiary which signs
any of the Loan Documents, addressed to the Agent and the Lenders and in form
and substance reasonably satisfactory to the Agent.
(g) an Administrative Questionnaire completed by each Lender and, if
required, the tax forms set forth in
Section 5.14
.
(h) an intercreditor agreement, reasonably satisfactory to the Agent, the
Floor Plan Agent and the Required Lenders (which shall evidence their
satisfaction by execution of this Agreement), setting forth the respective
rights of each party in the assets of the Company and the Borrowers executed
with, and received from, Ford Motor Credit Company, LLC.
(i) evidence that the fees and disbursements required to be paid by the
Company pursuant to
Section 5.4
and
Section 13.4
on the Closing Date have been paid.
(j) evidence that all UCC-1 filings and other Liens that are not permitted
pursuant to this Agreement and which are existing or reflected in searches
performed by the Agent or its counsel as of the Closing Date have been
released and/or terminated to the reasonable satisfaction of the Agent and its
counsel.
(k) evidence of insurance required by
Section 9.3
.
(l) all documentation and other information requested by the Agent to
satisfy the requirements of bank regulatory authorities under applicable "know
your customer" and anti-money laundering rules and regulations, including the
USA PATRIOT Act.
(m) At least five days prior to the Closing Date, if any Borrower qualifies
as a "legal entity customer" under the Beneficial Ownership Regulation, such
Borrower must deliver a Beneficial Ownership Certification in relation such
Borrower.
Section 8.2
Conditions Precedent to Initial Borrowings
.
(a) In addition to the conditions listed in
Section 8.1
above, the obligation of each Acquisition Loan Lender to make the initial
Acquisition Loans, or of the Issuing Bank to issue any Letter of Credit, is
subject to the further 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 Lenders, a perfected first Lien (subject to any
Permitted Liens) on the Collateral owned by the Company or any other 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
(ii) such other and further conditions shall have been fulfilled as the
Agent, or its counsel shall have reasonably determined.
(b) In addition to the conditions listed in
Section 8.1
above, the obligation of each Floor Plan Lender 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 execute any Drafting Agreement is subject to the
conditions precedent that with respect to the Floor Plan Borrower requesting
such Loans:
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(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 Lenders, a perfected first Lien
(subject to Permitted Liens) 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
(ii) such other and further conditions shall have been fulfilled as the
Agent, the Floor Plan Agent or its counsel shall have reasonably determined.
Section 8.3
Conditions Precedent to Each Borrowing
. The obligation of each Lender to make a Loan (other than a Loan requested
via delivery of a Draft under a Drafting Agreement which has not been
suspended and/or terminated in accordance with the terms of this Agreement) on
the occasion of any Borrowing (including the initial Acquisition Loan and the
initial Floor Plan Loan) and the obligation of each 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 Agent to execute Drafting
Agreements shall be subject to the further conditions precedent that on the
Borrowing Date of such Borrowing or Issuance:
(a) the representations and warranties contained in
Article VII
are correct on and as of the date of such Borrowing, upon giving effect to
such Borrowing and to the application of the proceeds therefrom, as though
made on and as of such date (unless expressly limited to an earlier date, in
which case, it shall be true 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
(i) a Material Adverse Effect, (ii) in the case of Acquisition Loan
Borrowings, a Default or an Event of Default and which has not been waived or
amended in accordance with the provisions set forth in
Section 13.7
or (iii) in the case of Floor Plan Borrowings (including Swing Line Loans),
(A) no Floor Plan Event of Default exists with respect to the Floor Plan
Borrower that is requesting the Borrowing, (B) no Floor Plan Event of Default
under
Section 11.3(c)
,
Section 11.3(f)
or
Section 11.3(g)
exists, (C) no Floor Plan Event of Default under any other subsection of
Section 11.3
has continued for sixty (60) days or more, and (D) there are no two concurrent
Floor Plan Events of Default under any other subsection of
Section 11.3
;
(c) each Request for Borrowing (other than a Request for Borrowing taking
the form of a Draft) shall constitute a certification, representation and
warranty by the Company that on the date of such Borrowing the statements
contained in this
Section 8.3
are true;
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(d) 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 Total Floor Plan Loan Commitment, such Floor Plan Loan
Borrowings shall not exceed the Floor Plan Advance Limit, and the Agent shall
have a first priority lien (subject only to carriers', warehousemen's and
landlords' Liens described in
Section 7.16(b)
and Liens described in
Section 10.2(f)
) on the Motor Vehicles that are being purchased with such Floor Plan Loan
Borrowing after giving effect to such Borrowing, (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 Advance Limit, (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, (A) the total amount of Letter of Credit Obligations
outstanding plus the aggregate principal amount of all Acquisition Loans
outstanding shall not exceed the Acquisition Loan Advance Limit, (B) the total
amount of Letter of Credit Obligations outstanding shall not exceed the
aggregate Letter of Credit Commitments of all Issuing Banks and (C) the total
amount of Letter of Credit Obligations outstanding in respect of Letters of
Credit Issued by the relevant Issuing Bank shall not exceed such Issuing
Bank's Letter of Credit Commitment, and (v) the aggregate principal amount of
all Loans and Letter of Credit Obligations then outstanding shall not exceed
the Total Commitment; and
(e) no party (other than the Agent, the Floor Plan Agent or a Lender) to
any Intercreditor Agreement has disputed or contested the contractual
subordination provision thereof in whole or in part or has otherwise breached
its material obligations thereunder which dispute, contest or breach involves
$1,000,000 or more in collateral, and such dispute, contest or breach has not
been waived, resolved or remedied within thirty (30) days after delivery of a
notice from the Agent or the Floor Plan Agent to such other party and the
Company.
Section 8.4
Conditions Precedent to Conversions and Continuations
. The obligation of the Lenders to convert any existing Borrowing into a Term
SOFR Borrowing or to continue any existing Borrowing as a Term SOFR 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 neither (a) an Acquisition Event of Default
(other than an Acquisition Event of Default under
Section 11.1(n)
), nor (b) any Floor Plan Event of Default with respect to which the remedies
described in
Section 11.4(c)
may be exercised 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 Lenders that no Default or Event of
Default shall have occurred and be continuing or would result from the making
of such conversion or continuation.
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ARTICLE IX
AFFIRMATIVE COVENANTS
So long as this Agreement shall remain in effect or the principal of or
interest on any Note, any Commitment Fees or any other fee, expense or amount
payable hereunder shall be unpaid and until the Commitments of all the Lenders
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 each of its Subsidiaries, 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, each Issuing Bank and
each Lender that:
Section 9.1
Existence
. The Company will maintain and preserve, and except as permitted by
Section 10.3
, will cause each other Borrower 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
Maintenance of Properties, Licenses and Permits; Compliance with Laws
. The Company will maintain, preserve and keep, and will cause each other
Borrower to maintain, preserve and keep, all of its properties in good repair,
working order and condition (ordinary wear and tear excepted). The Company
will make, and will cause each other Borrower 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 other Borrower 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
other Borrower 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 other Borrower will
comply with all laws and regulations applicable to the operation of such
businesses whether now in effect or hereafter enacted and with all other
applicable laws and regulations, including, without limitation, such laws and
regulations applicable to the making of Investments permitted in
Section 10.5
, except where the failure to comply could not reasonably be expected to have
a Material Adverse Effect; and the Company and each other Borrower 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 and financed under this Agreement, naming the Agent, for the
benefit of the Lenders, as additional loss payee.
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(a) Unless the Company 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 Company's expense to protect the Lenders' interest.
This insurance may, but need not, also protect the Company's interest. If the
Collateral becomes damaged, the coverage the Agent purchases may not pay any
claim the Company or any of its Subsidiaries makes or any claim made against
the Company or any of its Subsidiaries. The Company may later cancel this
coverage by providing evidence that the Company has obtained property coverage
elsewhere.
(b) The Company 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 the Company's prior coverage lapsed or the date the Company failed to
provide proof of coverage.
(c) The Company acknowledges that the coverage the Agent purchases may be
considerably more expensive than insurance the Company 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 other Borrower to pay
and discharge, when due, all taxes, assessments and governmental charges or
levies imposed upon the Company or such Borrower, 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 Borrower, 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 Borrower
has set aside on its books such reserves or other appropriate provisions
therefor as may be required by GAAP.
Section 9.5
Financial Statements; Reports
. The Company will furnish to the Agent and each Lender:
(a)
Annual Audit Reports
. Within one hundred twenty (120) days after the end of each fiscal year of
the Company, to the extent not filed with the Securities and Exchange
Commission, a copy of the annual audit report of the Company and its
Subsidiaries prepared on a consolidated basis in conformity with GAAP and
certified by an independent certified public accountant of recognized national
standing and, to the extent any Unrestricted Subsidiaries exist, consolidating
financial statements for each of said Unrestricted Subsidiaries.
(b)
Quarterly Financial Statements
. Within sixty (60) days after the end of each quarter (except the last
quarter) of each fiscal year of the Company, to the extent not filed with the
Securities and Exchange Commission, 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 financial statements of the Company and its Subsidiaries, and, to
the extent any Unrestricted Subsidiaries exist, consolidating financial
statements for each of such Unrestricted Subsidiaries, subject to normal year
end audit adjustments in each case.
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(c)
Officer's Certificate
. Together with the financial statements furnished by the Company under
Section 9.5(a)
and
Section 9.5(b)
, a compliance certificate substantially in the form of
Exhibit 9.5(c)
executed by the Company's Chief Financial Officer or 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.
(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, to the extent
such filings and reports are not available on the Company's website.
(e)
Manufacturer/Dealer Statements
. Promptly upon request by the Agent, the Floor Plan Agent or the Required
Lenders, 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 Lender, copies of the
Inventory Detail Report of each Floor Plan Borrower individually and on a
consolidated basis.
(g)
Permitted Floor Plan Indebtedness Information
. Promptly upon the request of any Lender, all floor plan audit reports,
summaries and all related information received from (i) any applicable lender
providing Permitted New Vehicle Floor Plan Indebtedness, (ii) Dual Subsidiary
Lenders in connection with Permitted Dual Subsidiary Indebtedness or (iii) any
applicable lender providing financing of Indebtedness permitted pursuant to
Section 10.1(r)
, and copies of all internal audits prepared by or on behalf of the Company or
any Borrower that are related to Permitted New Vehicle Floor Plan
Indebtedness, Permitted Dual Subsidiary Indebtedness or any Indebtedness
permitted pursuant to
Section 10.1(r)
.
(h)
Availability Analysis
. Together with the financial statements furnished by the Company under
Section 9.5(a)
and
Section 9.5(b)
, a completed Availability Analysis in the form of
Exhibit 9.5(h)
, 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 quarter.
(i)
Used Borrowing Base Calculation
. Within thirty (30) days after the end of each month, a completed Used
Borrowing Base Calculation in the form of
Exhibit 9.5(i)
, 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 month.
(j)
Beneficial Ownership Certification
. If any Borrower or any Subsidiary becomes subject to the Beneficial
Ownership Regulation, such Borrower or such Subsidiary shall notify Agent
promptly following such Borrower's or such Subsidiary's knowledge of such
change and deliver to Agent a Beneficial Ownership Certification in relation
to such Borrower or such Subsidiary.
(k)
Requested Information
. Promptly, from time to time, such other reports or information as the Agent,
the Floor Plan Agent or any Lender may reasonably request.
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Section 9.6
Litigation and Other Notices
. The Company will notify the Agent and the Lenders 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 Restricted Subsidiaries if the aggregate amount of such judgment or
decree exceeds $10,000,000 (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, including, without
limitation, any notices of default or acceleration received by any Borrower
from the provider of any Permitted New Vehicle Floor Plan Indebtedness,
Permitted Dual Subsidiary Indebtedness or any Indebtedness permitted pursuant
to
Section 10.1(r)
, together with a written explanation of the facts and circumstances
associated therewith;
(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 an ERISA Event with respect to any Plan that could
reasonably be expected to have a Material Adverse Effect; 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 if such termination could
reasonably be expected to result in a Material Adverse Effect; the institution
of any steps by the Company, or any of its Subsidiaries or any ERISA Affiliate
to withdraw from any Multiemployer Plan if such withdrawal could reasonably be
expected to result in a Material Adverse Effect; 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 that could
reasonably be expected to have a Material Adverse Effect; or the incurrence by
the Company or any ERISA Affiliate of any liability under Section 4201 or 4243
of ERISA for any withdrawal, partial withdrawal, reorganization or other event
under any Multiemployer Plan that could reasonably be expected to have a
Material Adverse Effect; or
(f)
Other Events
. The occurrence of such other events as the Agent or the Required Lenders 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.
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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 GAAP 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 Lender, 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
Lender to make extracts from such books and records, including, to the extent
permissible without the relevant Borrower being in breach thereof, Master
Franchise Agreements. Each Borrower will also permit, or cause to be
permitted, upon reasonable request, any authorized representative designated
by any Lender 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;
provided
, the proceeds of any Acquisition Loan requested in an Alternative Currency
shall be used solely in connection with the funding of the Acquisition of or
Investment in Unrestricted Subsidiaries;
(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; and
(d)
All Loans
. No Loans shall be used for any purpose which would be in contravention of
any Requirement of Law. No Borrower will request any Borrowing or Letter of
Credit, and no Borrower shall use, or permit its Subsidiaries and its or their
respective directors, officers, employees to use, the proceeds of any
Borrowing or Letter of Credit (i) in furtherance of an offer, payment, promise
to pay, or authorization of the payment or giving of money, or anything else
of value, to any Person in violation of any Anti-Corruption Laws or (ii)(A) to
fund any activities or business of or with any Person, or in any country or
territory, that, at the time of such funding, is the subject of Sanctions, or
(B) in any other manner that would result in a violation of Sanctions by any
Person (including any Person participating in the Loans or Letters of Credit,
whether as Agent, Arranger, Issuing Bank, Lender, underwriter, advisor,
investor, or otherwise).
Section 9.10
Nature of Business
. The Borrowers will engage in substantially the same field of business as
they are engaged in on the Closing Date, and except as permitted in
Section 10.5(h)
, 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.
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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, Anti-Corruption Laws and applicable Sanctions, except
where the failure to comply could not reasonably be expected to have a
Material Adverse Effect. The Company will maintain in effect and enforce
policies and procedures designed to ensure compliance by the Company, its
Subsidiaries and their respective directors, officers and employees with
Anti-Corruption Laws and applicable Sanctions. The Borrowers will not use or
allow any tenants or subtenants to use, or permit any Subsidiary to use or
allow any tenants or subtenants to use, its Property for any business activity
that violates any applicable federal or state law or that supports a business
that violates any federal or state law. The Company will, and will cause each
Subsidiary to, provide such information and take such actions as are
reasonably requested by the Agent or any Lender in order to assist the Agent
and the Lenders in maintaining compliance with anti-money laundering laws and
regulations.
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 constituting collateral in
a manner satisfactory to the Floor Plan Agent;
provided
,
however
, the Floor Plan Agent shall not be required to make more than four (4) 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)
Overage Amount
. If 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 by more than $5,000,000 in the aggregate (the "
Overage Amount
"), then the Floor Plan Agent shall so notify the Company and, within two (2)
Business Days of receipt of such notice, the Company shall deposit, or shall
cause other Floor Plan Borrowers to deposit, into an account with the Floor
Plan Agent, 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. At such time as the Out of
Balance condition is less than $5,000,000 in the aggregate, such deposited
amount shall be returned to the Company.
(c)
Delivery of Audits
. Within thirty (30) days after the end of each fiscal quarter of the Company,
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 each such Motor Vehicle was Out
of Balance. The Agent shall promptly deliver a copy of such report to each
Lender.
Section 9.13
Demonstrators and Rental Motor Vehicles
. 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
Reserved
.
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Section 9.15
Further Assurances
. The Company shall, and shall cause each of the Borrowers to, to the extent
applicable, 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 financed hereunder to be covered by and subject to the Liens
created in this Agreement or the Loan 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 the Company will pay all reasonable costs
connected with any of the foregoing.
Section 9.16
Permitted Acquisitions; New Subsidiary Requirements
.
(a) Subject to the remaining provisions of this
Section 9.16
applicable thereto, the Company may, from time to time after the Closing Date,
make Acquisitions, as long as with respect thereto each of the following
conditions are satisfied (a "
Permitted Acquisition
"):
(i) at least 20 days prior to the closing date of a proposed Acquisition
(or such later date as may be agreed to by Agent in its reasonable
discretion), the Company shall give the Agent (A) written notice of the
proposed Acquisition and (B) a copy of the purchase agreement relating to the
proposed Acquisition;
(ii) 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, and no other agreement, contract or instrument to which any Borrower
is a party restricts such proposed Acquisition; and
(iii) for each Acquisition involving the acquisition or establishment of a
direct or indirect Restricted Subsidiary of the Company, such Subsidiary shall
be a Wholly-Owned Subsidiary.
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(b) Promptly after the formation or acquisition (including pursuant to a
Permitted Acquisition) of any new Restricted Subsidiary of the Company (a "
New Restricted Subsidiary
"), but in any event within 30 days after the date such Person (1) becomes a
Restricted Subsidiary and (2) has any assets (or such later date as may be
agreed by the Agent in writing in its sole discretion), the Company shall
cause such New Restricted Subsidiary to join this Agreement and the other Loan
Documents as a Borrower. Such joinder shall become effective upon the date on
which each of the following requirements is satisfied (such date, the "
Joinder Effective Date
"):
(i) at least 20 days prior to the Joinder Effective Date (or such shorter
period of time as may be agreed by the Agent in writing acting in its sole
discretion), the Agent shall have received from the Company the following
documents regarding such New Restricted Subsidiary: (A) its organizational
documents, (B) a status or good standing certificate demonstrating its due
organization, valid existence, qualification to do business and good standing,
and (C) verification of its tax identification number (which documents the
Agent shall provide to the Lenders within a reasonable period after receipt);
(ii) the Agent and the Lenders shall have received, no later than five (5)
Business Days prior to the Joinder Effective Date, to the extent requested in
writing delivered by the Agent to the Company no later than eight (8) Business
Days prior to the Joinder Effective Date, such additional information and
documentation as the Agent or the Lenders may request in order to comply with
the requirements of bank regulatory authorities under applicable "know your
customer" and anti-money laundering rules and regulations, including the USA
PATRIOT Act;
(iii) such New Restricted Subsidiary shall have executed an Addendum and
accompanying Schedules and any other documents reasonably required by the
Agent (and consistent with the documentation provided by the existing
Borrowers on the Closing Date), including without limitation resolutions or
other authorizations authorizing such New Restricted Subsidiary's joinder as a
Borrower hereunder and under the other Loan Documents;
(iv) such New Restricted Subsidiary shall have granted to the Agent, for
the benefit of the Secured Parties, first priority perfected security
interests on all Collateral (as defined in the Security Agreement) owned by
such New Restricted Subsidiary, subject only to Permitted Liens and except as
otherwise consented to by the Agent and the Required Lenders in writing, and
such New Restricted Subsidiary shall have taken all actions requested by the
Agent or the Required Lenders 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, in each case, pursuant to Security Documents substantially
similar to the analogous Security Documents already executed by the existing
Borrowers and satisfactory in form and substance to the Agent. Such additional
Security Documents and other instruments related 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 Secured Parties, required to be granted pursuant to such
Security Documents and all taxes, fees and other charges payable in connection
therewith shall be paid in full by the Company; and
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(v) if such New Restricted Subsidiary shall be (or shall become) a Dual
Subsidiary as of the Joinder Effective Date, then the Company and such New
Restricted Subsidiary shall have complied with the provisions of
Section 9.19
as of the Joinder Effective Date;
provided
that, notwithstanding anything to the contrary contained in this
Section 9.16
, to the extent that such New Restricted Subsidiary desires to borrow any
Floor Plan Loans at the closing of a Permitted Acquisition, such New
Restricted Subsidiary must be joined as a Borrower prior to or substantially
simultaneously with the closing of such Permitted Acquisition in order to make
such borrowing.
(c) Notwithstanding anything to the contrary contained herein or in any
other Loan Document:
(i) in the event the Dealer/Manufacturer 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;
(ii) the provisions of this
Section 9.16
shall not apply to (A) GPI Associates Holdings, LLC, (B) Group 1 Automotive
Reinsurance Two, Ltd., (C) Group 1 Reinsurance Ltd., (D) Sequoia Realty LLC,
(E) any other Subsidiary formed for purposes of reinsurance, and (F) any
dormant Subsidiaries having retained equity of less than $50,000 (provided
that such exclusion shall only apply to (1) GPI Associates Holdings, LLC to
the extent that it does not acquire any assets or incur any Indebtedness other
than those assets (including additional interests in existing or similar
assets) and Indebtedness in place on the Closing Date or (2) Sequoia Realty
LLC so long as its assets do not exceed $1,000,000 in the aggregate); and
(iii) the Company and each New Restricted Subsidiary shall have a grace
period of 30 days after the date an Acquisition occurs within which to pay off
any existing floor plan facility encumbering the Collateral so acquired.
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 transfer 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/Manufacturer Agreement or other agreements with Manufacturers to which
such Borrower is a party.
Section 9.18
Segregated Bank Accounts
. Upon request by the Agent or the Required Lenders following the occurrence
of (i) an Acquisition Event of Default (other than an Acquisition Event of
Default under
Section 11.1(n)
) or (ii) any Floor Plan Event of Default with respect to which the remedies
described in
Section 11.4(c)
may be exercised, the Company will immediately establish segregated bank
accounts sufficient, in the reasonable judgment of the Agent and the Floor
Plan Agent, to separate the proceeds of the Collateral from other sources of
cash flow including, without limitation, all cash flow generated from the sale
of assets originally purchased by any Borrower with the proceeds of Permitted
New Vehicle Floor Plan Indebtedness and Permitted Dual Subsidiary Indebtedness.
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Section 9.19
Designation of Dual Subsidiaries
. The Company may designate any other Floor Plan Borrower (other than a Ford
Borrower) as a Dual Subsidiary in order to finance (x) New Motor Vehicles only
or (y) (i) New Motor Vehicles and (ii) Demonstrators and/or Rental Motor
Vehicles, through Permitted Dual Subsidiary Indebtedness so long as:
(a) the Company shall have (i) designated such Subsidiary as a Dual
Subsidiary to the Agent in writing and (ii) caused such Subsidiary to execute
and deliver acknowledgements (in form and substance reasonably acceptable to
the Agent) of such Subsidiary's continuing Obligations under the Loan
Documents (including pursuant to the Security Documents) as requested by the
Agent;
(b) except with respect to the Subsidiaries that are borrowers under the
Permitted Dual Subsidiary Indebtedness to be entered into with GM Financial on
or around the Second Amendment Effective Date, such Subsidiary shall have been
either (i) acquired by the Company, directly or indirectly, through a
Permitted Acquisition that closed within one hundred eighty (180) days prior
to the Company so designating such Floor Plan Borrower as a Dual Subsidiary or
(ii) formed or incorporated within one hundred eighty (180) days prior to the
Company so designating such Floor Plan Borrower as a Dual Subsidiary;
(c) such Subsidiary otherwise qualifies as a "Dual Subsidiary" entitled to
incur Permitted Dual Subsidiary Indebtedness pursuant to the terms of this
Agreement at the time of such designation;
(d) all representations and warranties in this Agreement shall be true and
correct in all material respects as of the date of such designation unless
such representation or warranty refers to another date and except as
previously disclosed to and accepted by the Agent in writing, and no Default
shall have occurred and be continuing or will exist after giving effect to
such designation;
(e)
if the applicable Dual Subsidiary will finance any Demonstrators or Rental
Motor Vehicles with Permitted Dual Subsidiary Indebtedness or will grant a
Lien in any Demonstrator or Rental Motor Vehicle to a Dual Subsidiary Lender,
the Company shall have provided to the Agent a compliance certificate
substantially in the form of
Exhibit 9.5(c)
executed by the Company's Chief Financial Officer or Treasurer
, together with a completed Availability Analysis in the form of
Exhibit 9.5(h)
,
as of the date of and after giving effect to such designation of such
Restricted Subsidiary as a Dual Subsidiary
and deduction of all Demonstrators and Rental Motor Vehicles of such Dual
Subsidiary from the Acquisition Loan Borrowing Base
;
(f) such Floor Plan Borrower shall repay all outstanding New Vehicle
Floorplan Loans and New Vehicle Swing Line Loans with respect to such Floor
Plan Borrower in accordance with
Section 5.7(e)
;
(g) prior to or concurrently with the initial incurrence of Permitted Dual
Subsidiary Indebtedness by any such Dual Subsidiary from a Dual Subsidiary
Lender, cause to be delivered to the Agent an Intercreditor Agreement, or a
joinder to an existing Intercreditor Agreement, executed by each Required
Intercreditor Counterparty, along with any applicable revised exhibits
thereto; and
(h) the Company shall have delivered to the Agent an updated list of all of
the Borrowers to the Credit Agreement that (A) includes each Borrower's state
of incorporation or formation, tax identification number and the addresses of
its principal place of business and any other business locations where a
material portion of its Motor Vehicles are located and (B) indicates each
Borrower that is a Dual Subsidiary and the applicable Manufacturer.
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Upon satisfaction of the conditions set forth in this
Section 9.19
with respect to the applicable designated Subsidiary, then such Subsidiary
shall become a Dual Subsidiary under this Agreement. The Lenders party hereto
hereby consent to the Agent entering into each Intercreditor Agreement (and
any joinder or supplement thereof) described in
Section 9.19
above on behalf of the Lenders.
Section 9.20
Conversion of Dual Subsidiary
. In the event that any Dual Subsidiary shall desire to cease being a Dual
Subsidiary, the Company shall so notify the Agent in writing. Such Floor Plan
Borrower (the "
Converting Dual Subsidiary
") shall cease being a Dual Subsidiary effective on the date on which each of
the following requirements is satisfied (the "
Dual Subsidiary Conversion Date
"):
(a) all representations and warranties in this Agreement shall be true and
correct in all material respects as of the Dual Subsidiary Conversion Date
unless such representation or warranty refers to another date and except as
previously disclosed to and accepted by the Agent in writing, and no Default
shall have occurred and be continuing or will exist after giving effect to
such conversion;
(b) the Company shall provide evidence to Agent, in form and substance
reasonably satisfactory to Agent, that (i) the Converting Dual Subsidiary has
repaid all outstanding Permitted Dual Subsidiary Indebtedness owing to the
applicable Dual Subsidiary Lender, and (ii) such Dual Subsidiary Lender has
terminated all Liens granted by the Converting Dual Subsidiary in any Motor
Vehicle or other Collateral to such Dual Subsidiary Lender to secure the
applicable Permitted Dual Subsidiary Indebtedness;
(c)
if the Converting Dual Subsidiary will finance any Demonstrators or Rental
Motor Vehicles with Floor Plan Loans after the Dual Subsidiary Conversion
Date, then
the Company shall have provided to the Agent a compliance certificate
substantially in the form of
Exhibit 9.5(c)
executed by the Company's Chief Financial Officer or Treasurer
as of the Dual Subsidiary Conversion
, together with a completed Availability Analysis in the form of
Exhibit 9.5(h)
, as of the
D
d
ate
of
and after giving effect to such conversion
and addition of all Demonstrators and Rental Motor Vehicles to be financed
with Floor Plan Loans to the Acquisition Loan Borrowing Base
; and
(d) the Company shall deliver to the Agent an updated list of all of the
Borrowers to the Credit Agreement that complies with
Section 9.19(h)
.
Upon satisfaction of the conditions set forth in this
Section 9.20
, then the Converting Dual Subsidiary shall cease to be a Dual Subsidiary
under this Agreement and shall be entitled to request New Vehicle Floor Plan
Loans or New Vehicle Swing Line Loans from and after the Dual Subsidiary
Conversion Date in accordance with the terms of this Agreement.
Section 9.21
Dissolution and Termination of Borrowers
.
(a) Notwithstanding the provisions of this Agreement (including
Sections 9.1
,
9.2
and
9.10
), any Borrower (other than the Company) that (i) no longer has assets or (ii)
has assets that will be distributed entirely and solely to the Company or a
Subsidiary pursuant to
Section 10.4(b)
(the "
Dissolving Borrower
"), may discontinue operations and dissolve or liquidate so long as each of
the following requirements are satisfied:
(i) such action would not constitute a Material Adverse Effect and no
Default shall have occurred and be continuing or will exist after giving
effect to such action;
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(ii) the Dissolving Borrower shall have ceased all Floor Plan Loan
Borrowing under this Agreement; and
(iii) the Company or the Dissolving Borrower shall have repaid in full the
Floor Plan Advance Limit, together with accrued and unpaid interest thereon,
with respect to all Motor Vehicles of the Dissolving Borrower financed with a
Floor Plan Loan in accordance with the provisions of this Agreement.
(b) Following dissolution of a Dissolving Borrower, the Company shall
promptly provide to Agent evidence of the Dissolving Borrower's (i) filing of
a certificate of dissolution or its equivalent with the appropriate
governmental authority in the Dissolving Borrower's state of incorporation or
organization and (ii) if applicable, filing of a certificate of withdrawal in
each state in which the Dissolving Borrower was qualified to do business
immediately prior to such dissolution. From and after the Company's delivery
of such certificates, the Dissolving Borrower shall not be entitled to request
Floor Plan Loans.
(c) The Dissolving Borrower shall cease to be a Borrower under the Loan
Documents upon satisfaction of the requirements set forth in clauses (a) and
(b) of this
Section 9.21
and delivery to the Agent, for its acceptance, of a Borrower Termination
Agreement, duly executed by the Company, the Dissolving Borrower and the other
Borrowers. Upon the Agent's acceptance of the Borrower Termination Agreement,
the Agent, for and on behalf of the Lenders, shall release the Lenders'
security interests in and liens on any assets of the Dissolving Borrower. The
Lenders party hereto hereby consent to the Agent, for and on behalf of the
Lenders, releasing such security interests and liens as provided in this
Section.
ARTICLE X
NEGATIVE COVENANTS
So long as this Agreement shall remain in effect or the principal of or
interest on any Note, any Commitment Fees or any other expense or amount
payable hereunder shall be unpaid, and until the Commitments of all the
Lenders shall expire or terminate, the Letter of Credit Obligations are paid
in full and all Drafting Agreements are terminated, (i) the Company, as to
itself and as to each of its Subsidiaries, and (ii) each Borrower other than
the Company, as to itself and its Subsidiaries only covenants and agrees with
the Agent, the Floor Plan Agent, the Swing Line Bank, each Issuing Bank and
each Lender that:
Section 10.1
Indebtedness
. Neither the Company nor any Subsidiary will incur, create, assume or suffer
to exist any Indebtedness, except:
(a) the Obligations;
(b) Indebtedness of any Borrower existing at the Closing Date which is
reflected in
Schedule 10.1(b)
hereto (and does not fall within any other category in this
Section 10.1
) and all renewals and extensions thereof on substantially the same terms;
(c) Indebtedness created under leases which, in accordance with GAAP, have
been recorded and/or should have been recorded on the books of the applicable
Subsidiary as Capital Leases;
(d) Indebtedness in connection with the purchase of personal property other
than Motor Vehicles;
(e) Subordinated Indebtedness;
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(f) accounts payable (for the deferred purchase price of property or
services) which are 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) (i) Permitted Real Estate Debt, (ii) any Guarantees by the Company of
such Indebtedness, and (iii) any Guaranties by any Subsidiary of such
Indebtedness incurred by any Restricted Subsidiary;
(h) Indebtedness of any Subsidiary of the Company in existence (but not
incurred or created in connection with a Permitted Acquisition) on the date on
which such Subsidiary is acquired by the Company,
provided
(i) neither the Company nor any of its other Subsidiaries has any obligation
with respect to such Indebtedness, (ii) none of the properties of the Company
or any of its other Subsidiaries is bound with respect to such Indebtedness,
(iii) the aggregate amount of all such Subsidiary Indebtedness does not exceed
10% of Stockholders' Equity (measured as of the date such Indebtedness is
incurred based upon the most recently delivered financial statements), and
(iv) such Indebtedness may be prepaid only upon the payment of prepayment
penalties or premiums in excess of 5% of the principal amount of such
Indebtedness;
(i) Indebtedness secured by Liens upon any property hereafter acquired by
the Company or any of its Subsidiaries to secure Indebtedness in existence on
the date of a Permitted Acquisition (but not incurred or created in connection
with such Permitted Acquisition), which Indebtedness is assumed by such Person
simultaneously with such Permitted Acquisition, which Liens extend only to
such property so acquired (and not to any after-acquired property) and with
respect to which Indebtedness neither the Company nor any of its Subsidiaries
(other than the acquiring Person) has any obligation;
(j) Indebtedness owed by the Company or any of its Subsidiaries to the
Company or to any other Subsidiary;
(k) any Retail Loan Guarantees;
provided
that the sum of (i) the aggregate principal amount of all Retail Loan
Guarantees plus (ii) Investments in seller financed notes in connection with
Motor Vehicles shall not exceed ten percent (10%) of Stockholders' Equity
(measured as of the date such Indebtedness is incurred based upon the most
recently delivered financial statements);
(l) contingent obligations (including Guarantees) by the Company of (x) any
Indebtedness of the Restricted Subsidiaries permitted hereunder unless
otherwise provided herein and (y) any Indebtedness of any Unrestricted
Subsidiary or joint venture if such contingent obligation (including
Guarantees) is an Investment permitted by
Section 10.5(j)
(as if such Investment were made on the date such Guarantee is issued);
(m) Guarantees of Indebtedness of Unrestricted Subsidiaries (floor plan or
other) in an amount not to exceed $75,000,000 in the aggregate;
(n) Indebtedness of Unrestricted Subsidiaries to non-Affiliated Persons not
secured by Liens on any property of, and not Guaranteed by, any Restricted
Subsidiary;
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(o) Indebtedness that constitutes a renewal, refinancing, replacement or
extension of Indebtedness of Borrowers otherwise permitted hereunder;
provided
that the principal amount of any such Indebtedness renewed, refinanced,
replaced or extended shall not materially exceed the amount outstanding
immediately prior to such renewal, refinancing replacement or extension, and,
further
provided
, in the case of Subordinated Indebtedness, no such renewal, refinancing,
replacement or extension may shorten the maturity to a date that is earlier
than six (6) months after the Maturity Date as of the date such Indebtedness
is incurred or change any of the subordination provisions in a manner adverse
to the Lenders without the consent of Required Lenders;
(p) Unsecured Indebtedness of the Company and Guarantees of such
Indebtedness by the Restricted Subsidiaries,
provided
that (i) at the time of such incurrence of such Indebtedness and after giving
effect thereto, there exists no Default or Event of Default and (ii) at the
time of the incurrence of such Indebtedness and any concurrent repayment of
Indebtedness or immediately after giving effect thereto, the Company and its
Restricted Subsidiaries are and will otherwise in compliance with the
financial covenants set forth in
Sections 10.12
and
10.13
;
(q) Indebtedness of the Company or any Restricted Subsidiary consisting of
floor plan financing for New Motor Vehicles provided by Manufacturer affiliate
or affiliate finance companies to Floor Plan Borrowers ("
Permitted New Vehicle Floor Plan Indebtedness
"),
provided
that (i) to the extent same is incurred by any Restricted Subsidiary, such
financing applies only to New Motor Vehicles sold to such Subsidiary by the
Manufacturer affiliated or allied with said finance company and that have
never been and are not subject to a security interest in favor of the Agent
other than as contemplated in an intercreditor agreement as described below in
this
Section 10.1(q)
, (ii) such Indebtedness is secured solely by a Lien on said New Motor
Vehicles sold and the proceeds thereof, except that any such Indebtedness with
Ford Motor Credit Company may also be secured by one or more cash collateral
accounts maintained with Ford Motor Credit Company and (iii) if incurred by a
Floor Plan Borrower, (A) such Indebtedness is at dealerships that own Ford
franchises, (B) the above referenced cash collateral account is maintained
with Ford Motor Credit Company in an amount not more than $4,000,000, and (C)
the Agent shall have executed with said company an intercreditor agreement,
reasonably satisfactory to the Agent, the Floor Plan Agent and the Required
Lenders, setting forth the respective rights of each party in the assets of
the Company and such dealerships;
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(r) Indebtedness (other than Permitted New Vehicle Floor Plan Indebtedness
and/or Permitted Dual Subsidiary Indebtedness) of any Borrower that is an Auto
Dealer and that is not a Floor Plan Borrower as of the Closing Date,
provided
the Company has given 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 Lenders 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 Lenders 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, provided with respect to clauses (i) and
(ii) above, that (A) such financing is VIN-specific floorplan financing that
applies only to New Motor Vehicles that have never been and are not subject to
a security interest in favor of the Agent other than as contemplated in an
Intercreditor Agreement as described below in this
Section 10.1(r)
, (B) such Indebtedness is secured solely by a Lien on said New Motor Vehicles
and the proceeds thereof and such other Collateral as agreed by Agent and the
Required Lenders all as further described in the Intercreditor Agreement, and
(C) the Agent shall have executed with the applicable Required Intercreditor
Counterparties an Intercreditor Agreement, setting forth the respective rights
of each party in the assets of such Subsidiary;
(s) Indebtedness (including Permitted Dual Subsidiary Guaranties but
excluding Indebtedness provided pursuant to this Agreement or pursuant to
clauses (q) or (r) of this
Section 10.1
) incurred from time to time by any Dual Subsidiary consisting of VIN-specific
floorplan financing for (1) New Motor Vehicles only or (2) (A) New Motor
Vehicles and (B) Demonstrators and/or Rental Motor Vehicles, provided by a
Dual Subsidiary Lender to the Company and/or one or more Dual Subsidiaries ("
Permitted Dual Subsidiary Indebtedness
"),
provided
that:
(i) such financing applies only to New Motor Vehicles, Demonstrators and/or
Rental Motor Vehicles, as applicable, sold to such Dual Subsidiary by a Dual
Subsidiary Lender that have never been and are not subject to a security
interest in favor of the Agent other than as contemplated in an Intercreditor
Agreement as described below in this
Section 10.1(s)
;
(ii) such Indebtedness is secured solely by a Lien on said New Motor
Vehicles, Demonstrators and Rental Motor Vehicles sold, accessions thereto,
the proceeds thereof and such other assets as may be agreed in writing by
Agent and the Required Lenders; and
(iii) the Agent shall have executed with the Required Intercreditor
Counterparties an Intercreditor Agreement setting forth the respective rights
of each party thereto in the assets of the Company and such Dual Subsidiary;
(t) Indebtedness of any Floor Plan Borrower to a Manufacturer or Affiliated
Finance Company for the purchase of Motor Vehicles and related tools parts,
accessories or equipment while in transit for which payment has not been
received by the applicable Manufacturer or Affiliated Finance Company,
consistent with the Company's existing business practices and in the ordinary
course of business;
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(u) Indebtedness of any Floor Plan Borrower to a Manufacturer or Affiliated
Finance Company for any Motor Vehicles acquired or obtained by such Floor Plan
Borrower resulting from the foreclosure, return, abandonment, surrender,
repossession, revocation or rescission of a financing transaction involving
leases, chattel paper, retail installment contracts, credit sales contracts
and other financing arrangements or recourse agreements purchased from a Floor
Plan Borrower by a Manufacturer or an Affiliated Finance Company relating to
the sale or lease of such Motor Vehicles by a Floor Plan Borrower;
(v) Indebtedness of any Borrower created under a qualified service loaner
or Demonstrator program with the Affiliated Finance Company of the
Manufacturer of the Motor Vehicles to be provided to such Borrower under such
service loaner or Demonstrator program; and
(w) obligations (contingent or otherwise) of the Company or any Restricted
Subsidiary existing or arising under any Hedging Agreement.
Section 10.2
Liens
. Neither the Company nor any Restricted Subsidiary will incur, create, assume
or permit to exist any Lien on any of its property or assets, whether owned at
the Closing Date 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) Liens securing Indebtedness permitted by
Section 10.1(b)
,
Section 10.1(c)
,
Section 10.1(d)
(which Liens extend only to property so purchased),
Section 10.1(h)
,
Section 10.1(i)
,
Section 10.1(n)
,
Section 10.1(q)
,
Section 10.1(r)
,
Section 10.1(s)
,
Section 10.1(t)
(which Liens extend only to the property so purchased),
Section 10.1(u)
(which Liens extend only to such Motor Vehicles) or
Section 10.1(v)
(which Liens extend only to property under such qualified service loaner or
Demonstrator program);
(c) Purchase money security interests (which Liens extend only to property
so purchased) of a Manufacturer or Affiliated Finance Company in Motor
Vehicles and related tools parts, accessories or equipment for which payment
has not been received by the applicable Manufacturer or Affiliated Finance
Company, consistent with the Company's existing business practices and in the
ordinary course of business (which Liens extend only to property so purchased);
(d) Liens in (i) Motor Vehicles acquired, obtained or resulting from the
foreclosure, return, abandonment, surrender, repossession, revocation or
rescission of a financing transaction involving leases, chattel paper, retail
installment contracts, credit sales contracts and other financing arrangements
or recourse agreements purchased by a Manufacturer or an Affiliated Finance
Company relating to the sale or lease of such Motor Vehicles by a Borrower ("
Sale Contracts
") and (ii) Sale Contracts purchased by a Manufacturer or an Affiliated
Finance Company, consistent with the Company's existing business practices and
in the ordinary course of business (which Liens extend only to such Motor
Vehicles and Sale Contracts);
(e) Liens referred to in
Section 7.16
;
(f) Liens securing Permitted Real Estate Debt and permitted guarantees
thereof;
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(g) extensions, renewals and replacements of Liens referred to in
Section 10.2(a)
,
(b)
,
(c)
,
(d)
and
(f)
;
provided
, that any such extension, renewal or replacement Lien shall be limited to the
property or assets covered by the Lien being 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 original Lien extended, renewed or replaced;
(h) Certain rights of set-off in favor of a Manufacturer on amounts owing
in connection with Motor Vehicles purchased from such Manufacturer and in
favor of suppliers and retail finance institutions consistent with the
Company's existing business practices and in the ordinary course of business;
and
(i) Liens existing under Qualified Sale/Leaseback Transactions, 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) Dispositions of all or substantially all of a Borrower's assets if such
Disposition is permitted in
Section 10.4(h)
;
(b) any Borrower may merge with the Company,
provided
that the Company shall be the continuing or surviving Person, or with any one
or more such Borrowers,
provided
that if any such transaction shall be between Borrowers, one of which is a
Wholly Owned Subsidiary and one Borrower which is not a Wholly Owned
Subsidiary, the Wholly Owned Subsidiary shall be the continuing or surviving
Person;
(c) any Borrower may sell all or substantially all of its assets (upon
voluntary liquidation or otherwise) to the Company or a Wholly Owned
Subsidiary that is a party to the Security Documents; and
(d) any Borrower may merge or consolidate with another Person (that is not
the Company or any of its Subsidiaries) if (x) the Borrower involved in the
merger or the consolidation is the surviving Person or the Person who is the
survivor becomes a Wholly Owned Subsidiary as a result thereof 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 other Inventory in the ordinary
course of business;
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(b) Dispositions of assets, properties or businesses by the Company or any
of its Subsidiaries 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/Manufacturer 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 Equipment and other property which is obsolete, worn
out or no longer used in or useful to such Person's business, all in the
ordinary course of business;
(d) Dispositions occurring as the result of a casualty event, condemnation
or expropriation;
(e) Dispositions pursuant to Qualified Sale/Leaseback Transactions;
(f) Dispositions of chattel paper and Cash Equivalents to third parties
pursuant to arm's length transactions for fair value in the ordinary course of
business;
(g) Dispositions as permitted in
Section 10.3(c)
; and
(h) Dispositions in any year of other 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 proceeds realized from such Disposition in any applicable year in
excess of ten percent (10%) of the tangible assets of the Company as of the
beginning of such year are either reinvested within one (1) year in similar
assets or used to repay senior Indebtedness of the Company after satisfaction
of any currently due Obligations.
Section 10.5
Investments
. Neither the Company nor any Restricted Subsidiary 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 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 state or
agency thereof;
(e) Investments in commercial paper maturing two hundred seventy (270) days
or less from the date of acquisition thereof and having, at such date of
acquisition, a credit rating of at least A-1 from S&P and P-1 from Moody's;
(f) Investments in certificates of deposit, banker's acceptances and time
deposits maturing within two (2) years from the date of acquisition thereof
issued or guaranteed by or placed with, and money market deposit accounts
issued or offered by, any domestic office of any commercial bank organized
under the laws of the United States of America or any State thereof that has a
combined capital and surplus and undivided profits of not less than
$100,000,000 and whose credit rating is at least A-1 from S&P and P-1 from
Moody's, or any Lender;
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(g) Investments in the form of Guarantees of Indebtedness permitted by
Section 10.1
(including, for the avoidance of doubt, any Permitted Dual Subsidiary
Guaranties);
(h) 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 Guarantees shall not exceed ten percent (10%) of Stockholders'
Equity (measured as of the date such Investment is made based upon the most
recently delivered financial statements);
(i) Investments in Wholly Owned Subsidiaries of the Company that are
Restricted Subsidiaries;
(j) Investments in Unrestricted Subsidiaries and joint ventures made after
the Closing Date and not permitted by any other clause of this
Section 10.5
in an aggregate amount of up to thirty (30%) of Stockholders' Equity (measured
as of the date such Investment is made based upon the most recently delivered
financial statements);
provided
that Investments in joint ventures shall not exceed an aggregate amount of ten
percent (10%) of Stockholders' Equity (measured as of the date such Investment
is made based upon the most recently delivered financial statements);
(k) Investments constituting Indebtedness permitted by
Section 10.1(m)
;
(l) Capital expenditures otherwise permitted hereunder that constitute an
Investment; and
(m) Investments existing on the Closing Date, including Investments of the
type existing on the Closing Date with Affiliated Finance Companies.
Section 10.6
Transactions with Affiliates
. No Borrower will enter into any transaction with any Affiliate except upon
terms no less favorable than the applicable Borrower could obtain 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 or required by GAAP).
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 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 a Material Adverse Effect. No Borrower will take any action
or fail to take any action the result of which could be a past due liability
to a Multiemployer Plan that could reasonably be expected to have a Material
Adverse Effect.
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Section 10.11
Restricted Payments
.
(a) The Company and its Restricted Subsidiaries will not declare or make
any Restricted Payment, except that:
(i) any Restricted Subsidiary may declare and make Restricted Payments to
the Company or any other Restricted Subsidiary at any time;
(ii) any Restricted Subsidiary may pay dividends ratably to its
shareholders (or on a basis more favorable to the Company);
(iii) the Company may declare or make any Restricted Payments payable
solely in shares of its Capital Stock (other than Redeemable Stock) or in
options, warrants or other rights to acquire its Capital Stock (other than
Redeemable Stock);
(iv) the Company may declare and make additional Restricted Payments;
provided that (x) no Event of Default or Default has occurred and is
continuing or would result from such Restricted Payment, (y) after giving pro
forma effect to such Restricted Payment as if such Restricted Payment had been
made at the beginning of the applicable four fiscal quarter period, the
Company could Incur (as defined in the 2020-4.000% Indenture) at least $1.00
of additional Debt (as defined in the 2020-4.000% Indenture) pursuant to
Section 4.9(a) of the 2020-4.000% Indenture, and (z) upon giving effect to
such Restricted Payment, the aggregate of all Restricted Payments declared or
made by the Company pursuant to this clause (iv) on or after October 30, 2020
(other than pursuant to clauses (ii) and (iv) through (xi) of
Section 10.11(b)
), when combined with the sum of Specified Investments and Specified
Subordinated Debt Prepayments, in each case, made on or after the Closing
Date, does not exceed the Builder Basket Amount.
(b) Notwithstanding the foregoing,
Section 10.11(a)
will not prohibit:
(i) payment of any dividend on Capital Stock of any class within 60 days
after the declaration thereof, or redemption of any Subordinated Debt (as
defined in the 2020-4.000% Indenture) within 30 days after giving notice of
redemption thereof, if, on the date when the dividend was declared or such
notice of redemption given, the Company or such Restricted Subsidiary could
have paid such dividend or redeemed such Subordinated Indebtedness in
accordance with this
Section 10.11
;
(ii) repayment or refinancing of any Subordinated Debt with Permitted
Refinancing Debt (as defined in the 2020-4.000% Indenture), or any Restricted
Payment made in exchange for, by conversion into or out of the net proceeds of
the substantially concurrent sale (other than from or to a Subsidiary of the
Company or from or to an employee stock ownership plan financed by loans from
the Company or a Subsidiary of the Company) of shares of Capital Stock (other
than Redeemable Stock) of the Company;
(iii) the payment of dividends on the Company's shares of Common Stock (as
defined in the 2020-4.000% Indenture) in the aggregate amount per fiscal year
equal to $1.20 per share for each share of Common Stock (or any securities
convertible into Common Stock to the extent they are entitled to such a
dividend) of the Company outstanding as of the applicable record date for such
dividends (as such $1.20 shall be adjusted for specified changes in the
capitalization of the Company upon recapitalizations, reclassifications, stock
splits, stock dividends, reverse stock splits, stock consolidations and
similar transactions);
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(iv) the acquisition of shares of Capital Stock in connection with (x) the
exercise of employee or director stock options or stock appreciation rights by
way of cashless exercise and (y) the withholding of a portion of such Capital
Stock to pay taxes associated therewith, and the purchase of fractional shares
of Capital Stock of the Company or any Restricted Subsidiary arising out of
stock dividends, splits or combinations or business combinations;
(v) the acquisition of shares of the Company's Capital Stock pursuant to
equity repurchases from future, present or former directors, officers or
employees in an amount of up to $10,000,000 per calendar year (and any portion
of such $10,000,000 not used in any calendar year may be carried forward to
the next succeeding calendar year);
(vi) dividends on Redeemable Stock of the Company or a Restricted
Subsidiary, or dividends on preferred stock of a Restricted Subsidiary, in
each case incurred in compliance with Section 4.9 of the 2020-4.000% Indenture;
(vii) the payment of cash in lieu of the issuance of Capital Stock in
connection with the conversion, retirement, repurchase or redemption of any
series of convertible debt securities of the Company or its Restricted
Subsidiaries;
(viii) upon the occurrence of a Change of Control (as defined in the
2020-4.000% Indenture) or an Asset Disposition (as defined in the 2020-4.000%
Indenture) and after the completion of the Offer to Purchase under Section
4.10 or 4.13 of the 2020-4.000% Indenture (including the purchase of all Notes
(as defined in the 2020-4.000% Indenture) tendered and required to be
purchased), any purchase, repurchase, redemption, defeasance, acquisition or
other retirement for value of Subordinated Debt (as defined in the 2020-4.000%
Indenture) required under the terms thereof as a result of such Change of
Control or Asset Disposition at a purchase or redemption price not to exceed
101% (in the case of a Change of Control) or 100% (in the case of an Asset
Disposition) of the outstanding principal amount thereof, plus accrued and
unpaid interest thereon, if any; provided that, in the case of an Asset
Disposition, such purchase, repurchase, redemption, defeasance, acquisition or
other retirement for value of Subordinated Debt does not exceed the Net
Available Proceeds from such Asset Disposition;
(ix) the payment of the deferred purchase price or earn-outs, including
holdbacks (and the receipt of any corresponding consideration therefor), or
payments with respect to fractional shares, in each case in connection with an
acquisition to the extent such payment would have been permitted by the
2020-4.000% Indenture at the time of such acquisition;
(x) Restricted Payments in an aggregate amount not to exceed $30,000,000
per calendar year so long as, after giving pro forma effect thereto, the Total
Leverage Ratio (as defined in the 2020-4.0000% Indenture) of the Company would
not exceed 3.25 to 1.00; and
(xi) other Restricted Payments in an aggregate amount not to exceed
$50,000,000;
provided, however
, that at the time of, and after giving effect to, any Restricted Payment
permitted under
clauses (i), (iii), (v), (vi), (viii), (x)
and
(xi)
no Default or Event of Default shall have occurred and be continuing or would
otherwise occur as a consequence thereof.
The amount of net proceeds from any exchange for, conversion into or sale of
Capital Stock of the Company pursuant to clause (ii) of this
Section 10.11(b)
shall be excluded from the calculation of the amount available for Restricted
Payments pursuant to
Section 10.11(a)(iv)
.
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(c) For purposes of determining compliance with the covenant set forth in
this
Section 10.11
, if a Restricted Payment meets the criteria of more than one of the types of
Restricted Payments described in clauses
(b)(i)
through
(b)(xi)
of
Section 10.11(b)
or pursuant to
Section 10.11(a)
, the Company, in its sole discretion, may order and classify, and
subsequently reorder and reclassify, such Restricted Payment in any manner in
compliance with this
Section 10.11
.
(d) For purposes of this
Section 10.11
, if a particular Restricted Payment involves a non-cash payment, including a
distribution of assets, then such Restricted Payment shall be deemed to be an
amount equal to the cash portion of such Restricted Payment, if any, plus an
amount equal to the Fair Market Value of the non-cash portion of such
Restricted Payment. The Fair Market Value of any assets or securities that are
required to be valued for purposes of this
Section 10.11
will be determined by, in the case of amounts under $50,000,000, an Officer
(as hereinafter defined) of the Company and, in the case of amounts greater
than or equal to $50,000,000, the Board of Directors of the Company whose
resolution with respect thereto will be delivered to the Agent. For purposes
of this paragraph (d), "
Officer
" means any of the following of the Company: the Chairman of the Board of
Directors, the Chief Executive Officer, the Chief Financial Officer, the
President, any Vice President, the Treasurer or the Secretary.
Section 10.12
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 1.20 to 1.0, 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 10.13
Total Adjusted Leverage Ratio
. The Company shall not, at any time permit its Total Adjusted Leverage Ratio
to be greater than 5.75 to 1.0, 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.
ARTICLE XI
EVENTS OF DEFAULT AND REMEDIES
Section 11.1
Acquisition Events of Default
. The following events shall constitute Acquisition Events of Default (herein
called "
Acquisition Events of Default
"):
(a) any representation or warranty made or deemed made in or in connection
with this Agreement, the Notes, 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 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
Acquisition 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;
(c) default shall be made in the payment of any interest on any Acquisition
Loan or any Commitment Fees or any other amount due under this Agreement other
than principal of any Acquisition Loan or any amount described in
Section 11.3(a)
or
Section 11.3(b)
, when and as the same shall become due and payable which shall remain
unremedied for a period of five (5) days from the date due;
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(d) default shall be made in the due observance or performance of any
covenant, condition or agreement contained in
Section 9.1
,
Section 9.6
,
Section 9.9
,
Section 9.10
,
Section 9.12
or in
Article X
;
(e) except as provided in
Section 11.1(a)
through
Section 11.1(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 other Loan Documents and such default shall
continue unremedied for thirty (30) days after the earlier to occur of (i) any
Borrower obtaining knowledge thereof and (ii) written notice thereof having
been given to the Company;
(f) (i) the Company or any Restricted Subsidiary shall (A) 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, (B) consent to the institution of, or fail to
contravene in a timely and appropriate manner to any such proceeding or the
filing of any such petition, (C) 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, (D)
file an answer admitting the material allegations of a petition filed against
it in any such proceeding, (E) make a general assignment for the benefit of
creditors, or (F) become unable, admit in writing its inability or fail
generally to pay its debts as they become due or (ii) the board of directors
(or similar governing body) of the Company or any Restricted Subsidiary shall
adopt a resolution authorizing the Company or any Restricted Subsidiary to
take any of the foregoing actions;
(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 the Company or any Restricted Subsidiary, or of a substantial part
of the property or assets of any such Person, 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 the Company or any Restricted Subsidiary
or for a substantial part of the property of any such Person or (iii) the
winding-up or liquidation of the Company or any Restricted Subsidiary; 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 (other than a default in the payment of principal or interest)
shall occur with respect to any Indebtedness of the Company or any Restricted
Subsidiary, if the total amount of such Indebtedness in default exceeds in the
aggregate, an amount equal to $25,000,000 and if the effect of any such
default 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 Company or any Restricted Subsidiary, which
Indebtedness exceeds in the aggregate an amount equal to $25,000,000, shall
not be 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) an ERISA Event shall have occurred that, when taken together with all
other ERISA Events that have occurred, could reasonably be expected to have a
Material Adverse Effect;
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(j) there shall be entered against the Company or any Restricted Subsidiary
one or more judgments or decrees in excess of $25,000,000 in the aggregate at
any one time outstanding for the Company and all Restricted 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 Restricted Subsidiary is insured and with
respect to which the insurer has assumed responsibility in writing (subject to
usual deductibles) or for and to the extent which the Company or any such
Restricted Subsidiary is otherwise indemnified if the terms of such
indemnification are satisfactory to the Required Lenders;
(k) there shall occur any material loss of or change to any Dealer/Manufactur
er Agreement between any Borrower and a Manufacturer, which has had a Material
Adverse Effect;
(l) any of the Loan Documents shall cease to be legal, valid and binding
agreements enforceable against any Person other than the Agent or any Lender
executing the same in accordance with the respective terms thereof except as
permitted by the terms hereof or thereof or 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;
(m) a Change of Control; or
(n) a Floor Plan Event of Default shall occur and be continuing.
Section 11.2
Acquisition Remedies
.
(a) Upon the occurrence of any Acquisition Event of Default (other than an
event with respect to the Company described in
Section 11.1(f)
or
Section 11.1(g)
), and at any time thereafter during the continuance of such event, the Agent
may, and at the request of the Required Lenders shall, by written or facsimile
notice to the Company, take any of the following actions at the same or
different times: (x) terminate the Total Acquisition Loan Commitment, (y)
declare the Acquisition Notes then outstanding to be immediately due and
payable, whereupon the principal of the Acquisition Notes, together with
accrued and unpaid interest thereon and any unpaid accrued Commitment Fees and
all other liabilities of the Borrowers accrued hereunder with respect to the
Acquisition Loans, shall become immediately 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 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 Lenders as provided in any of the Loan
Documents or as otherwise provided in the UCC or other applicable law;
(b) With respect to the events described in
Section 11.1(f)
or
Section 11.1(g)
, the Total Acquisition Loan Commitment shall automatically terminate (if not
theretofore terminated) and the Acquisition Notes 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 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
Lenders as Collateral for the payment and performance of Drafting Agreements
until all such Drafting Agreements are terminated according to their terms; or
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(c) Notwithstanding the above, with respect to an Acquisition Event of
Default described in
Section 11.1(n)
, if such is caused solely by the occurrence of a single Event of Default
occurring under
Section 11.3(a)
,
Section 11.3(b)
,
Section 11.3(d)
,
Section 11.3(e)
,
Section 11.3(h)
,
Section 11.3(i)
,
Section 11.3(j)
, or
Section 11.3(k)
and affects only one Floor Plan Borrower (other than the Company) and no other
Event of Default has occurred and is continuing, the Agent shall not be
entitled to accelerate the Acquisition Notes for a period of sixty (60) days
from the date of such Floor Plan Event of Default.
Section 11.3
Floor Plan Events of Default
. The following events shall constitute Floor Plan Events of Default hereunder
in respect of any one or more Floor Plan Borrowers (herein called "
Floor Plan Events of Default
"):
(a) (i) Default shall be made in the payment of any principal of any Floor
Plan Loan (including but not limited to any Swing Line Loan or Swing Line
Overdraft 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, (ii) the
Company shall fail to cure any Out of Balance condition, which condition in
each case shall remain unremedied for a period of five (5) days following
notice thereof by the Agent to the Company, or (iii) the Company shall fail to
deposit or cause to be deposited sufficient funds to comply with the
provisions of
Section 9.12(b)
;
(b) Default shall be made in the payment of any interest on any Floor Plan
Loan or in the payment of any fees or any other amount payable by any Floor
Plan Borrower (other than principal) pursuant to the Loan Documents which
default continues until the earlier of: (i) ten (10) days after the due date
thereof and (ii) three (3) Business Days following notice thereof by the Agent
to the Company;
(c) (i) the Acquisition Loans shall be accelerated, (ii) unless the
Acquisition Loans shall have been heretofore accelerated pursuant to clause
(i), the Company shall fail to pay the principal or interest on the
Acquisition Loans within sixty (60) days of the due date thereof, (iii) the
Acquisition Loan Commitments shall be terminated pursuant to
Section 11.2
and the Acquisition Event of Default that provided the basis for such
termination shall continue for sixty (60) days thereafter, or (iv) an event
shall occur that would have constituted an Acquisition Event of Default (but
for the fact that prior thereto the Total Acquisition Loan Commitment shall
have been voluntarily terminated pursuant to
Section 5.5
) and such event shall continue for sixty (60) days after notice thereof from
the Required Lenders to the Company;
(d) (i) such Floor Plan Borrower shall (A) 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, (B) 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, (C) apply for or consent to the appointment of a receiver, trustee,
custodian, sequestrator or similar official for such Floor Plan Borrower or
for a substantial part of such Floor Plan Borrower's property or assets, (D)
file an answer admitting the material allegations of a petition filed against
it in any such proceeding, (E) make a general assignment for the benefit of
creditors or (F) become unable, admit in writing its inability or fail
generally to pay its debts as they become due or (ii) the board of directors
(or similar governing body) of such Floor Plan Borrower shall adopt a
resolution authorizing such Floor Plan Borrower to take any of the foregoing
actions;
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(e) 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 such Floor Plan Borrower, or of a substantial part of the property
or assets of such Floor Plan 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 such Floor Plan Borrower or for a
substantial part of the property of such Floor Plan Borrower or (iii) the
winding-up or liquidation of such Floor Plan 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;
(f) the Company 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 the Company or for a
substantial part of its 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, or (vi) become
unable, admit in writing its inability or fail generally to pay its debts as
they become due;
(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 the Company, or of a substantial part of the property or assets of
the Company, 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 the Company or for a substantial part of its property or (iii)
the winding-up or liquidation of the Company; 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 (other than a default in the payment of principal or interest)
shall occur with respect to any Indebtedness of such Floor Plan Borrower, if
the total amount of such Indebtedness in default exceeds in the aggregate, an
amount equal to $25,000,000 and if the effect of any such default 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 such Floor Plan Borrower which Indebtedness exceeds in
the aggregate, an amount equal to $25,000,000 shall not be 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) there shall be entered against such Floor Plan Borrower one or more
judgments or decrees in excess of $25,000,000 in the aggregate at any one time
outstanding 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 such Floor Plan Borrower is insured and
with respect to which the insurer has assumed responsibility in writing
(subject to usual deductibles) or for and to the extent to which such Floor
Plan Borrower is otherwise indemnified if the terms of such indemnification
are reasonably satisfactory to the Required Lenders;
(j) there shall occur a termination of such Floor Plan Borrower's
Dealer/Manufacturer Agreement with a Manufacturer and the related Floor Plan
Loans are not promptly repaid;
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(k) any of the Loan Documents or Security Documents in respect of such
Floor Plan Borrower shall cease to be in full force and effect or in any way
be terminated (excluding termination caused by the Agent or Lenders) or become
or be declared ineffective or inoperative or shall in any way whatsoever cease
to give or provide the respective first priority Liens, intended to be created
thereby (subject only to Permitted Liens), and such cessation or failure to
give or provide such first priority Liens continues for ten (10) days after
the first to occur of (i) the Company obtaining knowledge thereof and (ii)
written notice thereof having been given to the Company;
(l) the aggregate outstanding principal balance of all (i) Floor Plan Loans
(including Requests for Borrowings of Floor Plan Loans), plus (ii) Swing Line
Loans, plus (iii) Swing Line Overdraft Loans, plus (iv) Drafts presented for
payment exceeds (1) one hundred ten percent (110%) of the Total Floor Plan
Loan Commitment and such condition exists for two (2) consecutive Business
Days or (2) the Total Floor Plan Loan Commitment by any amount for fifteen
(15) days out of any thirty (30) day period; or
(m) the Company fails to promptly pay following written demand therefor any
payments described in
Section 11.3(a)
and
Section 11.3(b)
that are due and payable by a Floor Plan Borrower during the continuance of a
Floor Plan Event of Default described in
Section 11.3(d)
or
Section 11.3(e)
with respect to such Floor Plan Borrower.
Section 11.4
Floor Plan Remedies
.
(a) Upon the occurrence of a Floor Plan Event of Default under
Section 11.3(a)
,
Section 11.3(b)
,
Section 11.3(d)
,
Section 11.3(e)
,
Section 11.3(h)
,
Section 11.3(i)
,
Section 11.3(j)
,
Section 11.3(k)
, or
Section 11.3(l)
the Agent may, and at the direction of the Required Lenders or the Swing Line
Bank, shall instruct the Floor Plan Agent to (i) make no further Loans to such
Floor Plan Borrower (other than Floor Plan Loans and/or Swing Line Loans
and/or Swing Line Overdraft Loans made due to the funding of Drafts of such
Floor Plan Borrower prior to the suspension and/or termination of the Drafting
Agreements of such Floor Plan Borrower in accordance with clause (ii) hereof
or any Refunding Floor Plan Loans) during the continuance of such Floor Plan
Event of Default, and/or (ii) suspend and/or terminate all or certain of the
Drafting Agreements with respect to such Floor Plan Borrower during the
continuance of such Floor Plan Event of Default. Notwithstanding the
foregoing, the Lenders shall continue to make Floor Plan Loans available to
all Floor Plan Borrowers with respect to which no Floor Plan Event of Default
has occurred until otherwise provided in
Section 11.4(c)
below.
(b) During the sixty (60) day grace period specified by
Section 11.3(c)
above, the interest rate applicable to Floor Plan Loans, Swing Line Loans and
Swing Line Overdraft Loans made during such grace period shall increase by two
percent (2%).
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(c) Immediately upon the occurrence of a Floor Plan Event of Default under
Section 11.3(c)
,
Section 11.3(f)
,
Section 11.3(g)
or
Section 11.3(m)
, or sixty (60) days after the occurrence of any Floor Plan Event of Default
under
Section 11.3(a)
,
Section 11.3(b)
,
Section 11.3(d)
,
Section 11.3(e)
,
Section 11.3(h)
,
Section 11.3(i)
,
Section 11.3(j)
, or
Section 11.3(k)
, that is continuing and immediately upon the occurrence of a second,
concurrent Floor Plan Event of Default under
Section 11.3(a)
,
Section 11.3(b)
,
Section 11.3(d)
,
Section 11.3(e)
,
Section 11.3(h)
,
Section 11.3(i)
,
Section 11.3(j)
, or
Section 11.3(k)
, no further Loans shall be made (other than Floor Plan Loans and/or Swing
Line Loans and/or Swing Line Overdraft Loans made due to the funding of Drafts
of such Floor Plan Borrower prior to the suspension and/or termination of the
Drafting Agreements as described below or any Refunding Floor Plan Loans), and
(i) the Agent may, and at the request of the Required Lenders shall, by
written or facsimile notice to the Company, take any of the following actions
at the same or different times: (x) terminate immediately the Total Floor Plan
Loan Commitment and the Total Acquisition Loan Commitment hereunder, and any
such termination shall automatically terminate the Swing Line Commitment
(provided, that all Drafts funded prior to the completion of the suspension
and/or termination of Drafting Agreements as provided in clause (ii) hereof
shall be deemed Floor Plan Loans and/or Swing Line Loans, as applicable in
accordance with Section 2.3 hereof regardless of the termination of any
commitment under this clause (x) and the Lenders' obligation to comply with
the requirements of Section 4.5 of this Agreement shall survive until the
suspension and/or termination of Drafting Agreements as provided in clause
(ii) hereof), (y) declare the Acquisition Notes and the Floor Plan Notes then
outstanding to be immediately due and payable, whereupon the principal of the
Acquisition Notes, the Floor Plan Notes, together with accrued and unpaid
interest thereon and any unpaid accrued Commitment Fees and all other
liabilities of the Borrowers hereunder and under all of the Loan Documents
shall become immediately 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 or other Loan Document to the contrary notwithstanding, or (z)
pursue and enforce any of the rights and remedies of the Agent or the Floor
Plan Agent on behalf of the Lenders 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 and/or Swing Line Bank in its sole discretion may, and at the
request of the Required Lenders or the Agent shall (and, to the extent the
Commitments have been terminated and the Floor Plan Agent has received notice
of such termination, such request shall be deemed to have been made), take all
actions reasonably necessary to suspend and/or terminate all Drafting
Agreements, and the Floor Plan Agent and/or the Swing Line Bank shall have all
remedies available to it at law or in equity or as contained in any of the
Loan Documents.
Section 11.5
Overdrawing of Floor Plan Loans
. If at any time the aggregate outstanding principal amount of (i) all Floor
Plan Loans (including Requests for Borrowings of Floor Plan Loans), plus (ii)
all Swing Line Loans, plus (iii) all Swing Line Overdraft Loans, plus (iv) all
Drafts presented for payment exceeds (a) 110% of the Total Floor Plan Loan
Commitment and such condition exists for two (2) consecutive Business Days or
(b) the Total Floor Plan Loan Commitment by any amount for fifteen (15) days
out of any 30-day period, then, in such event, the Floor Plan Agent and/or
Swing Line Bank acting in its sole discretion may, and upon election of the
Required Lenders, shall (y) take any and all actions reasonably necessary to
suspend and/or terminate Drafting Agreements and (z) elect by written notice
to the Company to terminate the Floor Plan Loan Commitments and to deem such
occurrence as constituting an Acquisition Event of Default.
Section 11.6
Application of Collateral
.
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(a) Upon the exercise of remedies by the Agent in accordance with this
Article XI
and pursuant to the procedures among the Lenders set forth in
Section 11.6(b)
, the Agent, after giving written notice to the Borrowers and to all Lenders,
all Issuing Banks and the Swing Line Bank of the action(s) to be taken, may at
any time or times thereafter (i) receive directly, for the benefit of the
Secured Parties and for application to the then outstanding Obligations as
provided hereafter in this
Section 11.6(a)
, all payments and proceeds related to the Collateral and/or (ii) in
accordance with the Security Documents 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 Lender (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.
In the case of any sale or other liquidation of Collateral (other than amounts
already in the Cash Collateral Account, which amount shall be applied as set
forth in
Section 6.8
), 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 Secured Parties, shall be applied in the following order:
(i)
First
, to pay all incurred and unpaid fees, costs and expenses of the Agent, the
Swing Line Bank and/or the Floor Plan Agent under the Loan Documents and any
protective advances made by the Agent or the Floor Plan Agent with respect to
the Collateral under or pursuant to the terms of any Loan Document;
(ii)
Second
, to the payment of interest and then principal due to Swing Line Bank in
connection with any outstanding Swing Line Overdraft Loans;
(iii)
Third
, to the payment of interest and then principal due to Swing Line Bank in
connection with any outstanding Swing Line Loans held by the Swing Line Bank;
(iv)
Fourth
, to the payment ratably of the amounts due to the Lenders for interest and
then principal on all Floor Plan Loans then outstanding that were funded from
the Reserve Commitment without preference or priority of such Indebtedness
owing to one Lender over another;
(v)
Fifth
, to the payment ratably of the amounts due to the Lenders for interest and
fees and then principal on all Floor Plan Loans not previously paid, without
preference or priority of such Indebtedness owing to one Lender over another;
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(vi)
Sixth
, to the payment ratably on actual amounts outstanding of (i) the amounts due
to the Lenders for interest and then principal on all Acquisition Loans (which
include all unreimbursed drawings under all Letter of Credit Obligations)
first to Acquisition Loan Lenders that have Acquisition Loan Commitments in an
Alternative Currency until such time as the amount owing to each of the
Acquisition Loan Lenders under the Acquisition Loan is equal to its Pro Rata
Share of Acquisition Loan Commitments and (ii) a Cash Collateral Account equal
to the aggregate undrawn amount of all outstanding Letters of Credit, which
account shall be subject to the provisions of
Section 6.8(a)
;
(vii)
Seventh
, to the payment ratably of the amounts due, without preference or priority of
such Indebtedness, for all Obligations arising under Lender Hedging Agreements
and Bank Products;
(viii)
Eighth
, to the payment ratably of all other amounts due with respect to any other
Obligations not otherwise described above; and
(ix)
Ninth
, 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.
(b) Notwithstanding anything to the contrary contained herein or in the
Security Documents, all Lenders making Floor Plan Loans and all Lenders making
Acquisition Loans acknowledge that any proceeds resulting from the sale or
other realization of any Collateral (other than amounts already in the Cash
Collateral Account) shall be applied in the order described in
Section 11.6(a)
, above, such that all Swing Line Overdraft Loans shall be paid before Floor
Plan Loans, all Floor Plan Loans shall be paid before Acquisition Loans, and
all Acquisition Loans will be paid before any liabilities under any Lender
Hedging Agreement or Bank Product. Such application will be made by the Agent
or the Floor Plan Agent based on either of their calculations of all of such
Indebtedness and the various classifications of any Loans made hereunder,
which calculations shall be conclusive, absent manifest error. The intent of
such classification shall be to create a priority of payments in the order
stated notwithstanding that all of said Indebtedness is secured as a group by
the Security Documents and the Collateral described therein.
(c) The Agent is not required to act with respect to the Collateral except
in accordance with the written procedures as established by the Required
Lenders; however, if the Required Lenders 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 Secured Parties under the Loan Documents.
(d) No Lender 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.
ARTICLE XII
THE AGENT, FLOOR PLAN AGENT AND THE COLLATERAL
Section 12.1
Reserved
.
Section 12.2
Authorization and Action of the Agent; Rights and Duties Regarding Collateral,
Priority of Distributions
.
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(a) In order to expedite the various transactions contemplated by this
Agreement, each Lender (on its own behalf and on behalf of any of its
Affiliates from time to time party to any Lender Hedging Agreement or Bank
Product), the Floor Plan Agent and the Swing Line Bank hereby irrevocably
appoints and authorizes U.S. Bank to act as Agent on its behalf. Each of the
Lenders (on its own behalf and on behalf of any of its Affiliates from time to
time party to any Lender Hedging Agreement or Bank Product), the Floor Plan
Agent and the Swing Line Bank and each subsequent holder of any 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 Lender, 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 Lenders, the Floor Plan
Agent and the Swing Line Bank, without hereby limiting any implied authority,
(i) to receive on behalf of each of the Lenders and the Swing Line Bank 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 Lender its proper share of all payments so received; (ii) to give
notice within a reasonable time on behalf of each of the Lenders 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 12.8
; (iii) to distribute to each Lender 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 Lenders, 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 or the other Loan
Documents (including enforcement or collection of the Notes), 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
Lenders, and such instructions shall be binding upon all Lenders and all
holders of Notes and the Loans, the Floor Plan Agent and the Swing Line Bank;
provided
, 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.
(b) The Agent shall hold all of the Collateral along with all payments and
proceeds arising therefrom, for the benefit of all Secured Parties as security
for the payment of all the Obligations subject to the provisions of
Section 11.6(a)
. Upon payment in full of all the Obligations and termination of the
Commitments, 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 rights provided for in the Security Documents and may collect, receive
and receipt for all proceeds receivable on account of the Collateral.
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(c) All payments and proceeds of every kind from the Collateral, when
directly received by the Agent pursuant to
Section 11.6(a)
(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 Lender 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 11.6(a)
.
Section 12.3
Agent's Reliance
.
(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 or any of the other
Loan Documents (i) with the consent or at the request of the Required Lenders
or (ii) in the absence of its or their own gross negligence or willful
misconduct as determined in a final, nonappealable judgment by a court of
competent jurisdiction
(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 12.3
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, respectively, as the holder of such Note
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 Lender, the Swing Line Bank, or the Floor Plan Agent and
shall not be responsible to any Lender, 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 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 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 Lender, the Swing Line Bank or
the Floor Plan Agent for the due execution, legality, validity, enforceability,
collectability, genuineness, sufficiency or value of this Agreement, any Note,
any other Loan Document or any other instrument or document furnished pursuant
hereto or thereto; (vi) shall not be responsible to any Lender, the Swing Line
Bank or the Floor Plan 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, any Note or any other Loan Document by acting upon any notice,
consent, certificate or other instrument or writing (which may be by
facsimile) reasonably believed by it to be genuine and signed or sent by the
proper party or parties.
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Section 12.4
Agent and Affiliates; U.S. Bank and Affiliates
. Without limiting the right of any other Lender 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
and the Notes, if any, issued to them, U.S. Bank shall have the same rights
and powers under this Agreement, any Note or any of the other Loan Documents
as any other Lender and may exercise the same as though it were not the Agent;
and the term "Lender" or "Lenders" shall, unless otherwise expressly
indicated, include U.S. Bank in its individual capacity. U.S. Bank 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 the Borrowers or any of their Affiliates, or may act as trustee
on behalf of, or depository 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 Lenders or the Floor Plan
Agent. Without limiting the rights and remedies of the Lenders, the Swing Line
Bank, or the Floor Plan Agent specifically set forth in the Loan Documents, no
other Lender, 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
, 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 Lender, 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 12.5
Lenders' Indemnity of Agent
.
(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 or any
other Loan Document unless indemnified to the Agent's satisfaction by the
Lenders 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 Lenders and the Swing
Line Bank agree to indemnify the Agent (to the extent not reimbursed by the
Borrowers), 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 Commitment
ceased to be outstanding held by each of them, 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 and the other
Loan Documents (including any action taken or omitted under
Article II
of this Agreement). Without limitation of the foregoing, each Lender 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 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 12.5
shall survive the termination of this Agreement, the payment of the
Obligations and/or the assignment of any of the Notes.
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(b) Notwithstanding the foregoing, no Lender or the Swing Line Bank shall
be liable under this
Section 12.5
to the Agent for any portion of such liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or
disbursements resulting from the Agent's gross negligence or willful
misconduct as determined in a final, nonappealable judgment by a court of
competent jurisdiction.
Each Lender and the Swing Line Bank agrees, however, that it expressly
intends, under this
Section 12.5
, 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 12.6
Lender Credit Decision
. Each Lender and the Swing Line Bank acknowledges that it has, independently
and without reliance upon the Agent, the Floor Plan Agent or any other Lender
or the Swing Line Bank and based on the financial statements 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 Lender
and the Swing Line Bank also acknowledges that it will, independently and
without reliance upon the Agent, the Floor Plan Agent or any other Lender and
based on such documents and information as it shall deem appropriate at the
time, continue to make its own 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 12.7
Resignation of Agent; 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 Lenders, the Swing Line Bank, the Floor Plan Agent and
the Company. Upon any such resignation, the Required Lenders shall have the
right to appoint a successor Agent, subject to the approval of the Company,
prior to the occurrence and continuance of an Event of Default, which approval
shall not be unreasonably withheld. If within thirty (30) calendar days after
the retiring Agent's giving of notice of resignation no successor Agent shall
have been so appointed by the Required Lenders, approved by the Company, prior
to the occurrence and continuance of a Default or an Event of Default and
shall have accepted such appointment, then the retiring Agent may, on behalf
of the Lenders, 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 $500,000,000.
Upon the acceptance of any appointment as Agent by a successor Agent hereunder
and under the Notes, 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 12.8
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 Lender, 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 Lenders, the Swing Line Bank and the
Floor Plan Agent and, if such notice is received from a Lender, the Swing Line
Bank or the Floor Plan Agent, the Agent shall give notice thereof to the other
Lenders, 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 11.2
and
Section 11.4
.
Section 12.9
Authorization and Action of the Floor Plan Agent
.
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(a) In order to expedite the various transactions contemplated by this
Agreement, each Lender, 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 Lenders, the Swing Line Bank and the Agent, and each subsequent
holder of any 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 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 Lender, 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 Lenders to (i)
receive and distribute funds, (ii) to receive and distribute all Communications
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 Lenders, and such instructions
shall be binding upon all Lenders, the Swing Line Bank, the Agent and all
holders of Notes and the Loans and the Floor Plan Agent;
provided
, 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 constituting
Collateral 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 Motor Vehicles constituting
Collateral, when directly received by the Floor Plan Agent (whether from
payments on or with respect to proceeds of Motor Vehicles constituting
Collateral, from foreclosure and sale to third parties, from sale of Motor
Vehicles constituting Collateral subsequent to a foreclosure at which the
Floor Plan Agent or another Lender was the purchaser, or otherwise) shall be,
except as otherwise expressly provided hereinafter, applied to the Obligations
in the manner set forth in
Section 11.6(a)
.
Section 12.10
Floor Plan Agent's Reliance
.
(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 Lenders acting by and through the Agent or (ii) in
the absence of its or their own gross negligence or willful misconduct as
determined in a final, nonappealable judgment by a court of competent
jurisdiction
(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 12.10
resulting from their sole ordinary or contributory negligence)
.
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(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 12.7
; (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 in
accordance with the advice of such counsel, accountants or experts; (iii)
makes no warranty or representation to any Lender, the Swing Line Bank or the
Agent and shall not be responsible to any Lender, 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 Lender, 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 Lender,
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 facsimile) reasonably believed by it to
be genuine and signed or sent by the proper party or parties.
Section 12.11
Floor Plan Agent and Affiliates; Comerica and Affiliates
. Without limiting the right of any other Lender, 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 or any of the other Loan
Documents as any other Lender and may exercise the same as though it were not
the Floor Plan Agent; and the term "Lender" or "Lenders" 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 depository for, or otherwise engage in Other Activities with
no responsibility to account therefor to the Lenders or the Agent. Without
limiting the rights and remedies of the Lenders or the Agent specifically set
forth in the Loan Documents, no other Lender 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
, 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 Lender and the Swing Line Bank shall be
entitled to share in such application according to its equitable portion of
such Obligations.
Section 12.12
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 or
any other Loan Document unless indemnified to the Floor Plan Agent's
satisfaction by the Lenders 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 Lenders 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 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 Commitment ceased to be outstanding
held by each of them, 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 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 Lender 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 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 12.12
shall survive the termination of this Agreement, the payment of the Loans
and/or the assignment of any of the Notes.
(b) Notwithstanding the foregoing, no Lender nor the Swing Line Bank shall
be liable under this
Section 12.12
to the Floor Plan Agent for any portion of such liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements resulting from the Floor Plan Agent's gross negligence or
willful misconduct as determined in a final, nonappealable judgment by a court
of competent jurisdiction.
Each Lender and the Swing Line Bank agrees however, that it expressly intends,
under this
Section 12.12
, 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 12.13
Lender Credit Decision
. Each Lender acknowledges that it has, independently and without reliance
upon the Floor Plan Agent, the Agent or any other Lender 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 Lender
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 Lender and based on such documents and information as it shall deem
appropriate at the time, continue to 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.
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Section 12.14
Resignation of Floor Plan Agent; 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 thirty
(30) days written notice thereof to the Lenders, 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 2.10
hereof shall be purchased by the successor Floor Plan Agent or the Lenders,
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 Lenders 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 Lenders, 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 Lenders, 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
$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 12.15
Notice of Default
. Neither the Agent nor the Floor Plan Agent shall be deemed to have knowledge
or notice of the occurrence of any Default or Event of Default hereunder
unless the Agent and the Floor Plan Agent shall have received notice from a
Borrower, a Lender 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
Lenders, 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
Section 12.9
and
Section 12.10
.
Section 12.16
Certain ERISA Matters
.
(a) Each Lender (x) represents and warrants, as of the date such Person
became a Lender party hereto, to, and (y) covenants, from the date such Person
became a Lender party hereto to the date such Person ceases being a Lender
party hereto, for the benefit of, the Agent and not to or for the benefit of
any Borrower or any of its Affiliates, that at least one of the following is
and will be true:
(i) such Lender is not using "plan assets" (within the meaning of Section
3(42) of ERISA or otherwise) of one or more Benefit Plans with respect to such
Lender's entrance into, participation in, administration of and performance of
the Loans, the Letters of Credit, the Commitments or this Agreement,
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(ii) the transaction exemption set forth in one or more PTEs, such as PTE
84-14 (a class exemption for certain transactions determined by independent
qualified professional asset managers), PTE 95-60 (a class exemption for
certain transactions involving insurance company general accounts), PTE 90-1
(a class exemption for certain transactions involving insurance company pooled
separate accounts), PTE 91-38 (a class exemption for certain transactions
involving bank collective investment funds) or PTE 96-23 (a class exemption
for certain transactions determined by in-house asset managers), is applicable
with respect to such Lender's entrance into, participation in, administration
of and performance of the Loans, the Letters of Credit, the Commitments and
this Agreement,
(iii) (A) such Lender is an investment fund managed by a "Qualified
Professional Asset Manager" (within the meaning of Part VI of PTE 84-14), (B)
such Qualified Professional Asset Manager made the investment decision on
behalf of such Lender to enter into, participate in, administer and perform
the Loans, the Letters of Credit, the Commitments and this Agreement, (C) the
entrance into, participation in, administration of and performance of the
Loans, the Letters of Credit, the Commitments and this Agreement satisfies the
requirements of sub-sections (b) through (g) of Part I of PTE 84-14 and (D) to
the best knowledge of such Lender, the requirements of subsection (a) of Part
I of PTE 84-14 are satisfied with respect to such Lender's entrance into,
participation in, administration of and performance of the Loans, the Letters
of Credit, the Commitments and this Agreement, or
(iv) such other representation, warranty and covenant as may be agreed in
writing between the Agent, in its sole discretion, and such Lender.
(b) In addition, unless either (1) sub-clause (i) in the immediately
preceding clause (a) is true with respect to a Lender or (2) a Lender has
provided another representation, warranty and covenant in accordance with
sub-clause (iv) in the immediately preceding clause (a), such Lender further
(x) represents and warrants, as of the date such Person became a Lender party
hereto, to, and (y) covenants, from the date such Person became a Lender party
hereto to the date such Person ceases being a Lender party hereto, for the
benefit of, the Agent and not to or for the benefit of any Borrower or any of
its Affiliates, that the Agent is not a fiduciary with respect to the assets
of such Lender involved in such Lender's entrance into, participation in,
administration of and performance of the Loans, the Letters of Credit, the
Commitments and this Agreement (including in connection with the reservation
or exercise of any rights by the Agent under this Agreement, any Loan Document
or any documents related hereto or thereto).
Section 12.17
Erroneous Payments
.
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(a) If the Agent notifies a Lender, Issuing Bank or other holder of any
Obligations (each, a "
Lender Party
"), or any Person who has received funds on behalf of a Lender Party (any such
Lender Party or other recipient, a "
Payment Recipient
"), that the Agent has determined in its sole discretion (whether or not after
receipt of any notice under
Section 12.17(b)
) that any funds received by such Payment Recipient from the Agent or any of
its Affiliates were erroneously transmitted to, or otherwise erroneously
received by, such Payment Recipient (whether or not such error is known to any
Payment Recipient) (any such funds, whether received as a payment, prepayment
or repayment of principal, interest, fees, distribution or otherwise,
individually and collectively, an "
Erroneous Payment
") and demands the return of such Erroneous Payment (or a portion thereof),
such Erroneous Payment shall at all times remain the property of the Agent and
shall be segregated by the Payment Recipient and held in trust for the benefit
of the Agent, and such Payment Recipient shall promptly, but in no event later
than one Business Day thereafter, return to the Agent the amount of any such
Erroneous Payment (or portion thereof) as to which such a demand was made, in
same day funds (in the currency so received), together with interest thereon
in respect of each day from and including the date such Erroneous Payment (or
portion thereof) was received by such Payment Recipient to the date such
amount is repaid to the Agent in same day funds at the greater of the Federal
Funds Effective Rate and a rate determined by the Agent in accordance with
banking industry rules on interbank compensation from time to time in effect.
A notice of the Agent to any Payment Recipient under this clause (a) shall be
conclusive, absent manifest error.
(b) Without limiting
Section 12.17(a)
, if any Payment Recipient receives a payment, prepayment or repayment
(whether received as a payment, prepayment or repayment of principal,
interest, fees, distribution or otherwise) from the Agent (or any of its
Affiliates) that (x) is in a different amount than, or on a different date
from, that specified in a notice of payment, prepayment or repayment sent by
the Agent (or any of its Affiliates) with respect to such payment, prepayment
or repayment, (y) was not preceded or accompanied by a notice of payment,
prepayment or repayment sent by the Agent (or any of its Affiliates), or (z)
such Payment Recipient otherwise becomes aware was transmitted, or received,
in error (in whole or in part):
(i) (A) in the case of immediately preceding clause (x) or (y), an error
shall be presumed to have been made (absent written confirmation from the
Agent to the contrary) or (B) in the case of immediately preceding clause (z),
an error has been made, in each case, with respect to such payment, prepayment
or repayment; and
(ii) such Payment Recipient shall promptly (and, in all events, within one
Business Day of its knowledge of such error) notify the Agent of its receipt
of such payment, prepayment or repayment, the details thereof (in reasonable
detail) and that it is so notifying the Agent pursuant to this
Section 12.17(b)
.
(c) Each Lender Party hereby authorizes the Agent to set off, net and apply
any and all amounts at any time owing to such Lender Party under any Loan
Document, or otherwise payable or distributable by the Agent to such Lender
Party from the Obligations, against any amount due to the Agent under
Section 12.17(a)
or under the indemnification provisions of this Agreement.
(d) An Erroneous Payment shall not pay, prepay, repay, discharge or
otherwise satisfy any Obligations, except to the extent such Erroneous Payment
comprises funds received by the Agent from a Borrower for the purpose of
making such Erroneous Payment.
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(e) To the extent permitted by applicable law, each Payment Recipient
hereby agrees not to assert any right or claim to an Erroneous Payment, and
hereby waives, and is deemed to waive, any claim, counterclaim, defense or
right of set-off or recoupment, including without limitation any defense based
on "discharge for value" or any similar doctrine, with respect to any demand,
claim or counterclaim by the Agent for the return of any Erroneous Payment.
(f) Each party's agreements under this
Section 12.17
shall survive the resignation or replacement of the Agent, any transfer of
rights or obligations by, or the replacement of, a Lender or Issuing Bank, the
termination of the Commitments, or the repayment, satisfaction or discharge of
any or all Obligations.
ARTICLE XIII
MISCELLANEOUS
Section 13.1
Notices, Etc
. The Agent, any Lender, 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 Lender, the Floor Plan Agent and the Agent thereof. In the
event that the holder of any Note (including any Lender) 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 Lender) 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 facsimile) and mailed,
faxed or delivered:
(a) if to the Company, at 800 Gessner, Suite 500, Houston, TX 77024,
Attention: the Chief Financial Officer and the Treasurer, Facsimile No. (713)
647-5858, Telephone No. 713-647-5700, with a copy to the General Counsel,
Facsimile No. (713) 647-5869, Telephone No. (713) 647-5700;
(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 800 Nicollet Mall, Minneapolis, Minnesota 55402,
Attention: Lauren Wenger, Facsimile No. 866-721-7062, Telephone No.
503-464-4701;
a copy to U.S. Bank National Association, 800 Nicollet Mall, Minneapolis,
Minnesota 55402, Attention: Syndication Services, Facsimile No. 866-721-7062,
Telephone No. 503-464-4701, and for matters relating to Letters of Credit,
with a copy to Syndication Services, Email: agencyserviceslcmshared@usbank.com;
and
in the case of Borrowings denominated in Alternative Currencies, to U.S. Bank
National Association, 800 Nicollet Mall, Minneapolis, Minnesota 55402,
Attention: Keith Baas; Email NWLSComplexCreditsOshkosh@usbank.com;
(d) if to any Lender, as specified on the signature page for such Lender
hereto or, in the case of any Person who becomes a Lender after the Closing
Date, as specified on the Assignment and Acceptance executed by such Person or
in the Administrative Questionnaire delivered by such Person;
(e) in the case of any party hereto, such other address or facsimile number
as such party may hereafter specify for such purpose by notice to the other
parties;
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(f) if to the Floor Plan Agent, at Comerica Bank, National Dealer Services,
2900 North Loop West, Suite 700, Houston, Texas 77092, Attention: W. Cody
Brackeen, Facsimile No. (713) 507-2879, Telephone No. (713) 507-1319.
All Communications shall 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) faxed to any party to the facsimile number
set forth above, on the signature page hereof or on the signature page of such
Assignment and Acceptance (or other facsimile number designated by such party
in a Communication to the other parties hereto) and confirmed by a
transmission report verifying the correct facsimile 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 Lenders and shall survive
the making by the Lenders of the Loans and the execution and delivery to the
Lenders 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 as long as the Commitments of the
Lenders 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 Lenders 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 Lenders.
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(b) Each Lender 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
, that (i) no such assignment shall be made unless such assignment and
assignee have been approved by the Agent, the Floor Plan Agent, the Issuing
Banks and the Swing Line Bank and, so long as no Event of Default exists, the
Company, such approvals not to be unreasonably withheld or delayed,
provided
that such approval of the Company shall not be required if the assignee is a
Lender or an Affiliate of a Lender,
provided
further
, that the Company shall be deemed to have consented to any such assignment
unless it shall object thereto by written notice to the Agent within five
Business Days after having received written notice thereof, (ii) each such
assignment shall be of a constant, and not a varying, percentage of all the
assigning Lender's rights and obligations to this Agreement, and be pro rata
between the Acquisition Loan Commitment of such Lender and the Floor Plan Loan
Commitment of such Lender, (iii) the amount of the Commitment of the assigning
Lender subject to each such 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 Lender or (B) if not equal to the entire amount of the Commitment of
the assigning Lender, in no event be less than $5,000,000 and shall be in an
amount which is an integral multiple of $1,000,000;
provided
, for purposes of this
Section 13.3(b)
, that the retained Commitment of the assigning Lender may not be less than
$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 13.3(b)
hereto (an "
Assignment and Acceptance
"), together with any Note subject to such assignment and the assignor shall
pay to the Agent a processing and recordation fee of $3,000 payable by the
Lender's assignor thereunder, (v) the assignee shall deliver to the Agent an
Administrative Questionnaire and (vi) no such assignment shall be made to (A)
the Company or any of its Affiliates or Subsidiaries, (B) any Defaulting
Lender or any of its Subsidiaries, or a Person who, upon becoming a Lender
hereunder, would constitute a Defaulting Lender or a Subsidiary thereof or (C)
a natural Person (or a holding company, investment vehicle or trust for, or
owned and operated for the primary benefit of, a natural Person). 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 Lender, the Eligible Assignee thereunder
and the Agent, (x) the assignee thereunder shall become 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 Lender hereunder and
under the other Loan Documents and (y) the Lender thereunder shall, to the
extent provided in such Assignment and Acceptance, be released from its
obligations under this Agreement.
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(c) By executing and delivering an Assignment and Acceptance, the assigning
Lender 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 that it is the legal and beneficial owner of the
interest being assigned thereby free and clear of any adverse claim, such
assigning Lender 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 Lender 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
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 Lender's assignor or any other Lender and based on such
documents and information as it shall deem appropriate at the time, continue
to make its own credit decisions in taking or not taking action under this
Agreement; (v) such assignee confirms that it is an Eligible Assignee and has,
to the extent required, complied with the covenants contained in
Section 5.14
; (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 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 Lender.
(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 Lenders and the Commitments
of, and principal amounts (and stated interest) of the Loans owing to, each
Lender 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 Lenders shall treat each Person
whose name is recorded in the Register as a Lender hereunder for all purposes
of this Agreement and the Loan Documents. The Register shall be available for
inspection by the Borrowers or any Lender at any reasonable time and from time
to time upon reasonable prior notice. Upon request, the Agent will send a copy
of the Register to the Company.
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(e) Upon its receipt of an Assignment and Acceptance executed by an
assigning Lender and an Eligible Assignee together with the Note subject to
such assignment, the processing and recordation fee referred to in
Section 13.3(b)
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 13.3(b)
, (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 Lenders. 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 such Eligible Assignee in an
amount equal to the assigning Lender's Commitment assumed by it pursuant to
such Assignment and Acceptance, and a new Note to the assigning Lender in an
amount equal to the portion of its Commitment retained by the assigning Lender
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 1.1C
or
Exhibit 1.1E
, as applicable. Each canceled Note shall be promptly returned to the Company.
(f) Each Lender 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 Notes held by it);
provided
, that (i) such Lender's obligations under this Agreement shall remain
unchanged, (ii) such Lender 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
(subject to the requirements and limitations therein, including the
requirements under
Section 5.14(f)
(it being understood that the documentation required under
Section 5.14(f)
shall be delivered to the participating Lender)) only to the same extent that
the Lender 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
Lenders shall continue to deal solely and directly with such Lender in
connection with such Lender's rights and obligations under this Agreement, and
such Lender 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 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). To
the extent permitted by law, each participant shall also be entitled to the
benefits of
Section 13.5
as though it were a Lender;
provided
that such participant agrees to be subject to
Section 5.13
as though it were a Lender. Each Lender that sells a participation shall,
acting solely for this purpose as a non-fiduciary agent of the Borrowers,
maintain a register on which it entered the name and address of each
participant and the principal amounts (and stated interest) of each
participant's interest in the Loans or other obligations under the Loan
Documents (the "
Participant Register
");
provided
that no Lender shall have any obligation to disclose all or any portion of the
Participant Register (including the identity of any participant or any
information relating to a participant's interest in any commitments, loans,
letters of credit or its other obligations under any Loan Document) to any
Person except to the extent that such disclosure is necessary to establish
that such commitment, loan, letter of credit or other obligation is in
registered form under Section 5f.103-1(c) of the United States Treasury
Regulations. The entries in the Participant Register shall be conclusive
absent manifest error, and such Lender shall treat each Person whose name is
recorded in the Participant Register as the owner of such participation for
all purposes of this Agreement notwithstanding any notice to the contrary. The
Agent (in its capacity as Agent) shall have no responsibility for maintaining
a Participant Register.
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(g) Any Lender 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 Lender 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,
including without limitation the provisions of
Section 13.19
) to preserve the confidentiality of any confidential information relating to
any Borrower received from such Lender.
(h) Anything in this
Section 13.3
to the contrary notwithstanding, any Lender 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 or other
central bank (and its transferees) as collateral security pursuant to
Regulation A of the Board and any Operating Circular issued by such Federal
Reserve Bank or central bank. No such assignment shall release the assigning
Lender 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 13.13
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 Agents and Lenders; 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 Lender 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 the counsel for the Agent
and the Floor Plan Agent, and, in connection with such enforcement or
protection, the reasonable fees and disbursements of other counsel for any
Lender and costs and fees associated with floor plan audits, to the extent not
previously paid by Borrowers. The Borrowers agree to indemnify the Lenders
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.
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(b)
THE BORROWERS EACH AGREE TO INDEMNIFY THE AGENT, THE FLOOR PLAN AGENT, THE
ISSUING BANKS, THE LENDERS AND THEIR RESPECTIVE AFFILIATES AND THE RESPECTIVE
DIRECTORS, OFFICERS, EMPLOYEES, ADVISORS AND AGENTS OF SUCH PERSON AND SUCH
PERSON'S AFFILIATES (EACH SUCH PERSON BEING CALLED AN "
INDEMNITEE
") AGAINST, AND TO HOLD THE LENDERS AND SUCH OTHER INDEMNITEES 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 LENDER) AND CONSUMMATION OF THE
TRANSACTIONS CONTEMPLATED HEREBY AND THEREBY, (II) THE USE OF PROCEEDS OF THE
LOANS OR (III) ANY ACTUAL OR PROSPECTIVE CLAIM, LITIGATION, INVESTIGATION OR
PROCEEDING RELATING TO ANY OF THE FOREGOING, WHETHER BASED ON CONTRACT, TORT
OR ANY OTHER THEORY, WHETHER BROUGHT BY A THIRD PARTY OR BY ANY BORROWER,
WHETHER OR NOT ANY INDEMNITEE IS A PARTY THERETO;
PROVIDED
THAT SUCH INDEMNITY SHALL NOT, AS TO ANY INDEMNITEE, APPLY TO ANY SUCH LOSSES,
CLAIMS, DAMAGES, LIABILITIES OR RELATED EXPENSES THAT (I) 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 OR
(II) ARISE FROM ANY DISPUTE SOLELY AMONG INDEMNITEES (OTHER THAN ANY CLAIMS
AGAINST THE AGENT, THE FLOOR PLAN AGENT, THE SWING LINE BANK OR ANY ISSUING
BANK, IN EACH CASE, IN ITS CAPACITY AS SUCH) NOT INVOLVING AN ACT OR OMISSION
BY THE COMPANY OR ITS AFFILIATES. THE BORROWERS AGREE 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 AS DETERMINED IN
A FINAL AND NONAPPEALABLE JUDGMENT BY A COURT OF COMPETENT JURISDICTION. THIS
SECTION 13.4(b)
SHALL NOT APPLY WITH RESPECT TO TAXES OTHER THAN ANY TAXES THAT REPRESENT
LOSSES, CLAIMS, DAMAGES, ETC. ARISING FROM ANY NON-TAX CLAIM.
(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 Obligations, 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 Lender. 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.
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(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 Company may participate in such proceeding at its own
expense if legal counsel to the Company is acceptable to the Agent.
(f) To the fullest extent permitted by applicable law, no party to this
Agreement shall assert, and each party hereto hereby waives, any claim against
any other party to this Agreement, on any theory of liability, for special,
indirect, consequential or punitive damages (as opposed to direct or actual
damages) arising out of, in connection with, or as a result of, this
Agreement, any other Loan Document or any agreement or instrument contemplated
hereby, the transactions contemplated hereby or thereby, any Loan or Letter of
Credit or the use of proceeds thereof;
provided
that nothing in this paragraph (f) shall relieve the Company or any other
Borrower of any obligation it may have to indemnify an Indemnitee against
special, indirect, consequential or punitive damages asserted against such
Indemnitee by a third party to the extent such Indemnitee would otherwise be
entitled to indemnification hereunder.
Section 13.5
Right of Setoff
. If either (i) an Acquisition Event of Default (other than an Acquisition
Event of Default under
Section 11.1(n)
) or (ii) a Floor Plan Event of Default with respect to which the remedies
described in
Section 11.4(c)
may be exercised shall have occurred and be continuing, each Lender 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 Lender, 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 Lender and the Swing Line Bank, respectively, according to their
respective rights as otherwise provided herein, irrespective of whether or not
such Lender shall have made any demand under this Agreement or such Note and
although such Obligations may be unmatured; provided that in the event that
any Defaulting Lender shall exercise any such right of setoff, (x) all amounts
so set off shall be paid over to immediately to the Agent for further
application in accordance with the provisions of
Section 5.20
and, pending such payment, shall be segregated by such Defaulting Lender from
its other funds and deemed held in trust for the benefit of the Agent, the
Issuing Banks and the Lenders and (y) the Defaulting Lender shall provide
promptly to the Agent a statement describing in reasonable detail the
Obligations owed to such Defaulting Lender as to which it exercised such right
of setoff. Each Lender 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 Lender 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 Lender and the Swing Line Bank may have under applicable
law. Each Lender hereby specifically agrees that in order to ensure that it
has control over said deposit accounts (as defined in the UCC), it will act in
accordance with the instructions from the Agent in regard to the disposition
of the funds in said deposit accounts without further consent from any
Borrower. The Lenders agree to indemnify each other (to the extent not
reimbursed by the Borrowers), ratably according to their 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 Commitment ceased to be outstanding held by each of them, 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
any Lender in any way relating to or arising out of any action taken or
omitted by such Lender in connection with its exercise of set off rights for
credit to any or all of the Obligations.
Section 13.6
Governing Law; Jurisdiction
.
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(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
Lenders 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 Lender may have under applicable federal
legislation relating to the amount of interest which such Lender 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 Lender 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 means the "weekly ceiling" from time to time in
effect under Section 303 of the Texas Finance Code, 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 of the Texas Finance
Code, as amended, do not apply to this Agreement or any Note issued hereunder.
(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 the 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. Each
Borrower, to the extent it is not qualified to do business in Texas, hereby
irrevocably designates, appoints and empowers the Company, with offices at 800
Gessner, Suite 500, Houston, Texas 77024, as its designee, appointee and agent
to receive, accept and acknowledge for and on its behalf, and in respect of
its property, service of any and all legal process, summons, notices and
documents which may be served in any such action or proceedings.
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Section 13.7
Waivers; Amendments
.
(a) No failure or delay of the Agent, the Floor Plan Agent, the Swing Line
Bank or any Lender 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, the Swing Line Bank and the Lenders 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
Section 13.7(b)
, 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.
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(b) Neither this Agreement, any Note, any Loan Document nor any provision
hereof or thereof may be waived, amended or modified except pursuant to a
written agreement or agreements entered into by the Borrowers and the Required
Lenders;
provided
, that no such agreement shall (i) change the principal amount of, or extend
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, decrease the rate of interest on any
Loan, or the amount of any fees payable to any Lender without the written
consent of each Lender affected thereby, (ii) change or extend the Commitment
of any Lender without the written consent of such Lender or change or postpone
the payment of the Commitment Fees payable to any Lender without the written
consent of each Lender, or increase the amount of the Total Commitment without
the consent of each Lender (except in accordance with
Section 5.18
), (iii) release or defer the granting or perfecting of a Lien in any
Collateral or release any Guarantee or similar undertaking provided by any
Person or modify any indemnity provided to the Lenders hereunder or under the
other Loan Documents without the written consent of each Lender;
provided
, the Agent or the Floor Plan Agent, as the case may be, shall be entitled to
release any Collateral or any Guarantee which a Borrower is permitted to sell
or transfer or otherwise release under the terms of this Agreement or any Loan
Document without notice to or any further action or consent of the Lenders;
(iv) amend or modify the provisions of this
Section 13.7
,
Section 13.3(a)
,
Section 4.6(b)
,
Section 5.11
,
Section 12.2(c)
,
Section 10.1(q)
, or
Section 11.6(a)
, the definition of the "
Required Lenders
" without the written consent of each Lender or (v) amend or modify the
provisions of
Section 5.20
or the definition of "
Defaulting Lender
" without the written consent of each Lender; and
provided
further
that (1) no such agreement shall amend, modify, waive or otherwise affect the
rights or duties of the Agent, the Floor Plan Agent or the Swing Line Bank
hereunder without the written consent of the affected Person, (2) no amendment
will affect the interest rate or any fees applicable to the Swing Line Loans
or the Swing Line Overdraft Loans without the consent of the Swing Line Bank,
and (3) the Borrowers and the Swing Line Bank may agree, without the consent
of the Floor Plan Agent, the Agent or any of the other Lenders to amend or
otherwise modify the interest rate or any fees (including the addition of
fees) applicable to the Swing Line Loans or the Swing Line Overdraft Loans.
Notwithstanding the foregoing, the Agent may execute and deliver to any
Borrower releases of chattel paper sold to any provider of Permitted New
Vehicle Floor Plan Indebtedness in accordance with the terms of the
Intercreditor Agreement executed in connection therewith between the Agent and
any such provider. Each Lender 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 Lender 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. Notwithstanding anything to the contrary
contained herein, no Defaulting Lender shall have any right to approve or
disapprove any amendment, waiver or consent hereunder, except that the
Commitments of such Defaulting Lender may not be increased or extended, the
principal amount of any Loan made by such Defaulting Lender may not be reduced
(other than by payment) and the maturity of any Loan made by such Defaulting
Lender may not be extended, in each case, without the consent of such
Defaulting Lender.
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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
Lender 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, 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, such Note or Loan Document 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 Lender 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 Lender
(such Highest Lawful Rate being such Lender's "
Maximum Permissible Rate
"), and shall be made, to the extent permitted by usury laws applicable to
such Lender (now or 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 Lender in connection therewith. If at any time and from time
to time (i) the amount of interest payable to any Lender on any date shall be
computed at such Lender'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 Lender would be less than the amount of
interest payable to such Lender computed at such Lender's Maximum Permissible
Rate, then the amount of interest payable to such Lender in respect of such
subsequent interest computation period shall continue to be computed at such
Lender's Maximum Permissible Rate until the total amount of interest payable
to such Lender shall equal the total amount of interest which would have been
payable to such Lender 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.
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(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, which may be
delivered in original, electronic or facsimile form, and 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 Lender 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, 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 Lenders all or any part of the security for any of
such Obligations.
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 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 liability
it has incurred pursuant to this Agreement. Further, each of the Borrowers
acknowledge 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;
provided
, in the event that the Indebtedness incurred by any Borrower pursuant to this
Agreement or the transactions contemplated hereby would constitute a
"fraudulent transfer" 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 automatically 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; Keepwell
.
(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 Lenders pursuant to
this Agreement or any Loan Document. Each of the Floor Plan Borrowers agrees
that it shall be bound by any action taken by the Company on its behalf
pursuant to such appointment.
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(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
Secured Parties 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 Secured
Parties to secure the Obligations shall secure only that portion of the
Obligations attributable to all of the GM Borrowers as hereinabove provided.
Subject to
Section 13.13
, the Obligations of all other Borrowers under this Agreement and the other
Loan Documents or otherwise are joint and several and not limited in any way
whatsoever.
(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 Lender 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 Lender or any holder of
the Notes securing any of the Obligations; or
- 156 -
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(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.
(d) Each Borrower agrees that its liability hereunder and its liability
under any of the Loan Documents 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 Lender
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 Lenders'
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, acceleration and the notice of intent to accelerate 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 Guarantee of any of the foregoing, subject,
however, in the case of Collateral in the possession of the Agent or a Lender
to such Person's duty to use reasonable care in the custody and preservation
of such Collateral.
(f) No delay on any of the Lenders' 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 Lenders 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 Lenders permitted hereunder shall in any way affect or impair any
such Lenders' rights or any Borrower's Obligations under this Agreement or the
other Loan Documents.
(g) Each Borrower hereby represents and warrants to each of the Lenders
that it now has and will continue to have independent means of obtaining
information concerning the Borrowers' affairs, financial condition and
business. The Lenders 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 Lenders'
possession.
(h) Each Qualified ECP Borrower hereby jointly and severally absolutely,
unconditionally and irrevocably undertakes to provide such funds and other
support as may be needed from time to time by each other Borrower to honor all
of its obligations under this Agreement in respect of Indirect Swap
Obligations (provided, however, that each Qualified ECP Borrower shall only be
liable under this
Section 13.14(h)
for the maximum amount of such liability that can be hereby incurred without
rendering its obligations under this
Section 13.14
, or otherwise under this Agreement, voidable under applicable law relating to
fraudulent conveyance or fraudulent transfer, and not for any greater amount).
The obligations of each Qualified ECP Borrower under this Section shall remain
in full force and effect so long as this Agreement shall remain in effect or
any Obligations shall be unpaid and until the Commitments of all the Lenders
shall expire or terminate, until no Letter of Credit Obligations are
outstanding and until all Drafting Agreements are terminated. Each Qualified
ECP Borrower intends that this
Section 13.14(h)
constitute, and this
Section 13.14(h)
shall be deemed to constitute, a "keepwell, support or other agreement" for
the benefit of each other Borrower for all purposes of Section 1a(18)(A)(v)(II)
of the Commodity Exchange Act.
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Section 13.15
USA Patriot Act
. Each Lender that is subject to the requirements of the USA Patriot Act
(Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (as amended
from time to time, the "
USA PATRIOT Act
") hereby notifies the Borrowers that pursuant to the requirements of the USA
PATRIOT Act, it is required to obtain, verify and record information that
identifies the Borrowers and their Subsidiaries, which information includes
the name and address of the Borrowers and their Subsidiaries, and other
information that will allow such Lender to identify the Borrowers and their
Subsidiaries in accordance with the USA PATRIOT Act.
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 Eleventh Amended and Restated Agreement for the account
of each "Lender" under the Eleventh Amended and Restated Agreement;
(b) each Letter of Credit outstanding under the Eleventh Amended and
Restated Agreement shall be deemed to have been issued under this Agreement
without further consideration or any fees under the Eleventh Amended and
Restated Agreement or this Agreement;
(c) each Drafting Agreement outstanding under the Prior Agreements shall be
deemed to have been issued under this Agreement;
(d) each of the Borrowers hereto acknowledges and affirms the security
interests and Liens granted by it under each of the Security Documents to
which it is a party; and
(e) the Eleventh Amended and Restated Agreement and the Commitments
thereunder shall be superseded in their entirety by this Agreement.
The Obligations of the Company hereunder are in restatement, amendment,
renewal and extension of the obligations and indebtedness of the Company under
the Prior Agreements.
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Section 13.17
Exiting Lenders
. Amarillo National Bank, MassMutual Asset Finance LLC and KeyBank National
Association, as a "Lender" under the Eleventh Amended and Restated Agreement
(the "
Exiting Lender
"), hereby sells, assigns, transfers and conveys to the Lenders hereto, and
each of the Lenders hereto hereby purchases and accepts, so much of the
aggregate commitments under, and loans outstanding under, the Eleventh Amended
and Restated Agreement such that, after giving effect to this Agreement (a)
the Exiting Lender shall (i) be paid in full for all amounts owing under the
Prior Agreements as agreed and calculated by the Exiting Lender and the Agent
in accordance with the Eleventh Amended and Restated Agreement, (ii) cease to
be a "Lender" under the Eleventh Amended and Restated Agreement and the "Loan
Documents" as defined therein and (iii) relinquish its rights (provided that
it shall still be entitled to any rights of indemnification in respect of any
circumstance or event or condition arising prior to the Effective Date) and be
released from its obligations under the Eleventh Amended and Restated
Agreement and the other "Loan Documents" as defined therein and (b) the
Commitments of each Lender shall be as set forth on
Schedule 1.1(a)
hereto. The foregoing assignments, transfers and conveyances are without
recourse to the Exiting Lenders and without any warranties whatsoever by the
Agent, the Floor Plan Agent, the Issuing Banks, the Swing Line Bank or the
Exiting Lender as to title, enforceability, collectability, documentation or
freedom from liens or encumbrances, in whole or in part, other than the
warranty of the Exiting Lender that it has not previously sold, transferred,
conveyed or encumbered such interests. The assignee Lenders and the Agent
shall make all appropriate adjustments in payments under the Eleventh Amended
and Restated Agreement, the "Notes" and the other "Loan Documents" thereunder
for periods prior to the adjustment date among themselves. The Exiting Lender
is executing this Agreement for the sole purpose of evidencing its agreement
to this Section 13.17 only and for no other purpose.
Section 13.18
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 26.02(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.
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Section 13.19
Confidentiality
. In the event that any of the Borrowers provides to the Agent, the Floor Plan
Agent or any Lender, written confidential information belonging to any of the
Borrowers that is denominated in writing as "confidential," the Agent, the
Floor Plan Agent, and the Lenders shall thereafter maintain such information
in confidence in accordance with the standards of care and diligence that each
utilizes in maintaining its own confidential information, including without
limitation, non-disclosure of such information to any of such Agent's, Floor
Plan Agent's or Lender's Affiliates who may be competitors of any of the
Borrowers in the business of acquiring and/or consolidating automotive
dealerships. The obligation of confidence under this
Section 13.19
shall not apply to such portions of the information which (i) are in the
public domain, (ii) hereafter become part of the public domain without the
Agent, the Floor Plan Agent or any Lender breaching its obligation of
confidence hereunder, (iii) are previously known by such Agent, Floor Plan
Agent or Lender from some source other than the Company, (iv) are hereafter
obtained by or available to such Agent, Floor Plan Agent or Lender from a
third party who owes no obligation of confidence to any of the Borrowers with
respect to such information or through any other means other than through
disclosure by any of the Borrowers, (v) must be disclosed either pursuant to
any requirement of any Governmental Authority or to Persons regulating or
claiming regulatory authority over the activities of such Agent, Floor Plan
Agent or Lender, or (vi) as may be required by law or regulation or order of
any Governmental Authority in any judicial, arbitration, or governmental
proceeding. Further, the Agent, the Floor Plan Agent and the Lenders may
disclose any such information (i) to any other Lender, (ii) to participants
and prospective assignees and participants or any actual or prospective party
to any swap, derivative or other transaction under which payments are to be
made by reference to any Borrower and its obligations, this Agreement or
payments hereunder, in each case, so long as such Person agrees to be bound by
the terms of this
Section 13.19
, (iii) to Affiliates of such Lender who are not competitors of any of the
Borrowers in the business of acquiring and/or consolidating automotive
dealerships and (iv) to any agents, advisors, independent certified public
accountants or legal counsel employed by such Person in connection with this
Agreement or any other Loan Document, including without limitation, in
connection with the enforcement or exercise of any rights and remedies
hereunder or thereunder;
provided
, that the Agent, the Floor Plan Agent or such Lender imposes on the Person to
whom such information is disclosed the same obligation to maintain the
confidentiality of such information as is imposed upon it hereunder.
Section 13.20
Waiver of Jury Trial
.
THE LENDERS, 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 LENDERS, THE AGENT, THE 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
LENDERS, THE AGENT, THE FLOOR PLAN AGENT OR ANY OF THE BORROWERS EXCEPT BY A
WRITTEN INSTRUMENT EXECUTED BY ALL OF THEM.
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Section 13.21
Acknowledgement and Consent to Bail-In of Affected Financial Institutions
. Notwithstanding anything to the contrary in any Loan Document or in any
other agreement, arrangement or understanding among any such parties, each
party hereto acknowledges that any liability of any Affected Financial
Institution arising under any Loan Document, to the extent such liability is
unsecured, may be subject to the write-down and conversion powers of the
applicable Resolution Authority and agrees and consents to, and acknowledges
and agrees to be bound by:
the application of any Write-Down and Conversion Powers by the applicable
Resolution Authority to any such liabilities arising hereunder that may be
payable to it by any party hereto that is an Affected Financial Institution;
and
the effects of any Bail-In Action on any such liability, including, if
applicable:
(1) a reduction in full or in part or cancellation of any such liability;
(2) a conversion of all, or a portion of, such liability into shares or other
instruments of ownership in such Affected Financial Institution, its parent
undertaking, or a bridge institution that may be issued to it or otherwise
conferred on it, and that such shares or other instruments of ownership will
be accepted by it in lieu of any rights with respect to any such liability
under this Agreement or any other Loan Document; or
(3) the variation of the terms of such liability in connection with the
exercise of the write-down and conversion powers of the applicable Resolution
Authority.
Section 13.22
Judgment Currency
. If for the purposes of obtaining judgment in any court it is necessary to
convert a sum due from any Borrower hereunder in the currency expressed to be
payable herein (the "
specified currency
") into another currency, the parties hereto agree, to the fullest extent that
they may effectively do so, that the rate of exchange used shall be that at
which in accordance with normal banking procedures the Agent could purchase
the specified currency with such other currency at the Agent's principal New
York City office on the Business Day preceding that on which final,
non-appealable judgment is given. The obligations of each Borrower in respect
of any sum due to any Lender or the Agent hereunder shall, notwithstanding any
judgment in a currency other than the specified currency, be discharged only
to the extent that on the Business Day following receipt by such Lender or the
Agent (as the case may be) of any sum adjudged to be so due in such other
currency such Lender or the Agent (as the case may be) may in accordance with
normal, reasonable banking procedures purchase the specified currency with
such other currency. If the amount of the specified currency so purchased is
less than the sum originally due to such Lender or the Agent, as the case may
be, in the specified currency, each Borrower agrees, to the fullest extent
that it may effectively do so, as a separate obligation and notwithstanding
any such judgment, to indemnify such Lender or the Agent, as the case may be,
against such loss, and if the amount of the specified currency so purchased
exceeds (a) the sum originally due to any Lender, any Issuing Bank or the
Agent, as the case may be, in the specified currency and (b) any amounts
shared with other Lenders as a result of allocations of such excess as a
disproportionate payment to such Lender under
Section 5.13
, such Lender or the Agent, as the case may be, agrees to remit such excess to
the relevant Borrowers.
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Section 13.23
Acknowledgement Regarding Any Supported QFCs
. To the extent that the Loan Documents provide support, through a guarantee
or otherwise, for Hedging Agreements or any other agreement or instrument that
is a QFC (such support, "
QFC Credit Support
" and each such QFC a "
Supported QFC
"), the parties acknowledge and agree as follows with respect to the
resolution power of the Federal Deposit Insurance Corporation under the
Federal Deposit Insurance Act and Title II of the Dodd-Frank Wall Street
Reform and Consumer Protection Act (together with the regulations promulgated
thereunder, the "
U.S. Special Resolution Regimes
") in respect of such Supported QFC and QFC Credit Support (with the
provisions below applicable notwithstanding that the Loan Documents and any
Supported QFC may in fact be stated to be governed by the laws of the State of
New York and/or of the United States or any other state of the United States):
(a) In the event a Covered Entity that is party to a Supported QFC (each, a "
Covered Party
") becomes subject to a proceeding under a U.S. Special Resolution Regime, the
transfer of such Supported QFC and the benefit of such QFC Credit Support (and
any interest and obligation in or under such Supported QFC and such QFC Credit
Support, and any rights in property securing such Supported QFC or such QFC
Credit Support) from such Covered Party will be effective to the same extent
as the transfer would be effective under the U.S. Special Resolution Regime if
the Supported QFC and such QFC Credit Support (and any such interest,
obligation and rights in property) were governed by the laws of the United
States or a state of the United States. In the event a Covered Party or a BHC
Act Affiliate of a Covered Party becomes subject to a proceeding under a U.S.
Special Resolution Regime, Default Rights under the Loan Documents that might
otherwise apply to such Supported QFC or any QFC Credit Support that may be
exercised against such Covered Party are permitted to be exercised to no
greater extent than such Default Rights could be exercised under the U.S.
Special Resolution Regime if the Supported QFC and the Loan Documents were
governed by the laws of the United States or a state of the United States.
Without limitation of the foregoing, it is understood and agreed that rights
and remedies of the parties with respect to a Defaulting Lender shall in no
event affect the rights of any Covered Party with respect to a Supported QFC
or any QFC Credit Support.
(b) As used in this Section 13.23, the following terms have the following
meanings:
"
BHC Act Affiliate
" of a party means an "affiliate" (as such term is defined under, and
interpreted in accordance with, 12 U.S.C. 1841(k)) of such party.
"
Covered Entity
" means any of the following: (i) a "covered entity" as that term is defined
in, and interpreted in accordance with, 12 C.F.R. (s) 252.82(b); (ii) a
"covered bank" as that term is defined in, and interpreted in accordance with,
12 C.F.R. (s) 47.3(b); or (iii) a "covered FSI" as that term is defined in,
and interpreted in accordance with, 12 C.F.R. (s) 382.2(b).
"
Default Right
" has the meaning assigned to that term in, and shall be interpreted in
accordance with, 12 C.F.R. (s)(s) 252.81, 47.2 or 382.1, as applicable.
"
QFC
" has the meaning assigned to the term "qualified financial contract" in, and
shall be interpreted in accordance with, 12 U.S.C. 5390(c)(8)(D).
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Section 13.24
Electronic Execution of Assignment and Acceptance
. The words "execution," "signed," "signature," and words of like import in
any Assignment and Acceptance shall be deemed to include Electronic Signatures
or the keeping of records in electronic form (including deliveries by
telecopy, emailed PDF or any other electronic means that reproduces an image
of an actual executed signature page), each of which shall be of the same
legal effect, validity or enforceability as a manually executed signature or
the use of a paper-based recordkeeping system, as the case may be, to the
extent and as provided for in any Applicable Law, including E-SIGN, the New
York State Electronic Signatures and Records Act, or any other similar state
laws based on UETA.
Section 13.25
Document Imaging; Telecopy and PDF Signatures; Electronic Signatures
. Without notice to or consent of any Borrower, the Agent and each Lender may
create electronic images of any Loan Documents and destroy paper originals of
any such imaged documents. Such images have the same legal force and effect as
the paper originals and are enforceable against the Borrowers and any other
parties thereto. The Agent and each Lender may convert any Loan Document into
a "transferrable record" as such term is defined under, and to the extent
permitted by, UETA, with the image of such instrument in the Agent's or such
Lender's possession constituting an "authoritative copy" under UETA. If the
Agent agrees, in its sole discretion, to accept delivery by telecopy, PDF or
any other electronic means that reproduces an image of an actual executed
signature page or an executed counterpart of a signature page of any Loan
Document or other document required to be delivered under the Loan Documents,
such delivery will be valid and effective as delivery of an original manually
executed counterpart of such document for all purposes. If the Agent agrees,
in its sole discretion, to accept any Electronic Signatures of any Loan
Document or other document required to be delivered under the Loan Documents,
the words "execution," "signed," and "signature," and words of like import, in
or referring to any document so signed will deemed to include Electronic
Signatures and/or the keeping of records in electronic form, which will be of
the same legal effect, validity and enforceability as a manually executed
signature and/or the use of a paper-based recordkeeping system, to the extent
and as provided for in any applicable law, including UETA, E-SIGN, or any
other state laws based on, or similar in effect to, such acts. The Agent and
each Lender may rely on any such electronic signatures without further inquiry.
* * *
Signatures on Separate Pages
- 163 -
Exhibit 99.1
FOR IMMEDIATE RELEASE
Group 1 Automotive Upsizes Revolving Credit Facility to $2.5 Billion
HOUSTON, TX, April 30, 2024 -
Group 1 Automotive, Inc.
(NYSE: GPI)
("Group 1" or the "Company"), a Fortune 300 automotive retailer with 203
dealerships located in the U.S. and U.K., today announced that it has
completed a $500 million upsize in its revolving syndicated credit facility to
$2.5 billion with 20 financial institutions, which will expire in March 2027
and can be expanded to $3.0 billion total availability.
Lenders in the syndicated facility include six manufacturer-affiliated finance
companies and 14 commercial banks. The six manufacturer-affiliated finance
companies are: Mercedes-Benz Financial Services USA LLC; Toyota Motor Credit
Corporation; BMW Financial Services NA, LLC; American Honda Finance
Corporation; VW Credit, Inc.; and Hyundai Capital America, Inc. The 14
commercial banks are: U.S. Bank National Association; Bank of America, N.A.;
JPMorgan Chase Bank, N.A.; Wells Fargo Bank, National Association; PNC Bank,
National Association; Comerica Bank; Truist Bank; TD Bank, N.A.; Ally Bank;
NYCB Specialty Finance Company, LLC; Barclays Bank PLC; Zions Bancorporation,
N.A. (dba Amegy Bank); Santander Bank, N.A.; and BOKF, NA (dba Bank of
Oklahoma). The syndication was arranged through U.S. Bank National
Association, JPMorgan Chase Bank N.A., BofA Securities, Inc., PNC Capital
Markets LLC, and Wells Fargo Securities, LLC.
"The expanded revolving facility further strengthens Group 1's balance sheet
by locking in additional capacity of reasonably priced capital for vehicle
financing and acquisition growth," said Daniel McHenry, Group 1's senior vice
president and chief financial officer. "The commitments made by our lenders
are a testament to the strong relationships we have established and we want to
thank them for their continued support."
ABOUT GROUP 1 AUTOMOTIVE, INC.
Group 1 owns and operates
203
automotive dealerships,
265
franchises, and
43
collision centers in the United States and the United Kingdom that offer
35
brands of automobiles. Through its dealerships and omni-channel platform, the
Company sells new and used cars and light trucks; arranges related vehicle
financing; sells service and insurance contracts; provides automotive
maintenance and repair services; and sells vehicle parts.
Group 1 discloses additional information about the Company, its business, and
its results of operations at
www.group1corp.com
,
www.group1auto.com
,
www.group1collision.com
,
www.acceleride.com
,
www.facebook.com/group1auto
, and
www.twitter.com/group1auto
.
1
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FORWARD-LOOKING STATEMENTS
This press release contains "forward-looking statements" within the meaning of
the Private Securities Litigation Reform Act of 1995, which are statements
related to future, not past, events and are based on our current expectations
and assumptions regarding our business, the economy and other future
conditions. In this context, the forward-looking statements may include
statements relating to the credit facility, future financial flexibility and
other initiatives and future business strategy. While management believes that
these forward-looking statements are reasonable as and when made, there can be
no assurance that future developments affecting us will be those that we
anticipate. Any such forward-looking statements are not assurances of future
performance and involve risks and uncertainties that may cause actual results
to differ materially from those set forth in the statements. These risks and
uncertainties include, among other things, (a) general economic and business
conditions, (b) the level of manufacturer incentives, (c) the future
regulatory environment, (d) our ability to obtain an inventory of desirable
new and used vehicles, (e) our relationship with our automobile manufacturers
and the willingness of manufacturers to approve future acquisitions, (f) our
cost of financing and the availability of credit for consumers, (g) our
ability to complete acquisitions and dispositions, on a timely basis, if at
all and the risks associated therewith, (h) foreign exchange controls and
currency fluctuations, (i) the armed conflicts in Ukraine and the Middle East,
(j) the impacts of any potential global recession, (k) our ability to maintain
sufficient liquidity to operate, and (l) our ability to successfully integrate
recent and future acquisitions. For additional information regarding known
material factors that could cause our actual results to differ from our
projected results, please see our filings with the Securities and Exchange
Commission, including our Annual Report on Form 10-K, Quarterly Reports on
Form 10-Q and Current Reports on Form 8-K. Readers are cautioned not to place
undue reliance on forward-looking statements, which speak only as of the date
hereof. We undertake no obligation to publicly update or revise any
forward-looking statements after the date they are made, whether as a result
of new information, future events or otherwise.
SOURCE: Group 1 Automotive, Inc.
Investor contacts:
Terry Bratton
Manager, Investor Relations
Group 1 Automotive, Inc.
ir@group1auto.com
Media contacts:
Pete DeLongchamps
Senior Vice President, Manufacturer Relations, Financial Services and Public
Affairs
Group 1 Automotive, Inc.
pdelongchamps@group1auto.com
or
Clint Woods
Pierpont Communications, Inc.
713-627-2223
cwoods@piercom.com
2
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