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EXHIBIT 10.3
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REIMBURSEMENT AGREEMENT
between
ANC RENTAL CORPORATION,
as Borrower,
and
AUTONATION, INC., as Lender,
Dated as of June 30, 2000
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REIMBURSEMENT AGREEMENT, dated as of June 30, 2000 , between ANC RENTAL
CORPORATION, a Delaware corporation (the "Borrower") and AUTONATION, INC., a
Delaware corporation (the "Lender").
W I T N E S S E T H:
WHEREAS, the Lender intends to distribute to its shareholders through a
spin-off (the "Spin-Off") 100% of the shares of common stock of the Borrower;
WHEREAS, after giving effect to the Spin-Off, the Borrower will need
credit support to provide for the continuation of existing obligations incurred
in respect of the Borrower's rental car business; and
WHEREAS, the Lender is willing to provide such credit support upon and
subject to the terms and conditions hereinafter set forth;
NOW, THEREFORE, for Ten Dollars ($10.00) and other good and valuable
considerations, the receipt and sufficiency of which is hereby conclusively
acknowledged, and in consideration of the premises and the agreements
hereinafter set forth, the parties hereto hereby agree as follows:
SECTION 1
DEFINITIONS
1.1 Defined Terms. As used in this Agreement, the terms listed in
this Section 1.1 shall have the respective meanings set forth in this Section
1.1.
"Affiliate": as to any Person, any other Person that, directly or
indirectly, is in control of, is controlled by, or is under common control with,
such Person. For purposes of this definition, "control" of a Person means the
power, directly or indirectly, either to (a) vote 10% or more of the securities
having ordinary voting power for the election of directors (or persons
performing similar functions) of such Person or (b) direct or cause the
direction of the management and policies of such Person, whether by contract or
otherwise; provided that, for purposes of this Agreement Lender and its
Affiliates (after giving effect to the Spin-Off) shall not be deemed Affiliates
of the Loan Parties.
"Accommodation Fees": as defined in Section 2.2.
"Accommodation Obligation Amount": at any time, an amount equal to the
sum in U.S. Dollars (determined with respect to any obligation denominated in
any foreign currency, at the U.S. Dollar Equivalent of such obligation), of the
aggregate then unpaid amounts (including principal and interest) underlying any
Lender Accommodation Obligation, whether or not due and payable and whether or
not demand upon Lender has been made therefore.
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"Agreement": this Reimbursement Agreement (including all exhibits and
schedules attached hereto), as amended, restated, supplemented or otherwise
modified, and any agreement substituted therefor, from time to time.
"Asset Sale": an Asset Sale as defined under the Interim Facility Loan
Agreement.
"Borrower": as defined in the preamble hereto.
"Business Day": a day other than a Saturday, Sunday or other day on
which commercial banks in New York City are authorized or required by law to
close.
"Capital Lease Obligations": as defined in the Interim Facility Loan
Agreement.
"Capital Stock": any and all shares, interests, participations or other
equivalents (however designated) of capital stock of a corporation, any and all
equivalent ownership interests in a Person (other than a corporation) and any
and all warrants, rights or options to purchase any of the foregoing.
"Cash Equivalents": as defined in the Interim Facility Loan Agreement.
"Change of Control": a Change of Control as defined under the Interim
Facility Loan Agreement.
"Closing Date": the date on which the conditions precedent set forth in
Section 4.1 shall have been satisfied, which date shall be not later than July
31, 2000.
"Code": the Internal Revenue Code of 1986, as amended from time to
time.
"Commonly Controlled Entity": an entity, whether or not incorporated,
that is under common control with the Borrower within the meaning of Section
4001 of ERISA or is part of a group that includes the Borrower and that is
treated as a single employer under Section 414 of the Code.
"Continuing Obligations: means all obligations of the Borrower and its
Subsidiaries, currently existing or entered into in the future, including
reimbursement, indemnification and loan obligations under:
(i) the Credit Agreement, as amended and restated on March 26
1999, among Republic Industries Autovermietung GmbH,
Commerzbank AG, Bremen Branch and the other parties thereto
("German Credit Facility");
(ii) the Loan Note Instrument, dated October 15, 1997, by Republic
Industries (UK) PLC, with respect to Floating Rate Guaranteed
Unsecured Loan Notes 2003 ("EuroDollar Note");
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(iii) the leases, dated as of July 8, 1997, between Value
Rent-A-Car, Inc., as tenant, and Mitsubishi Motor Sales of
America, Inc., as landlord ("Mitsubishi Property Leases");
(iv) the Motor Vehicle Lease Agreement, dated as of July 1997,
between Mitsubishi Motor Sales of America, Inc., Value
Rent-A-Car, Inc., Alamo Rent-A-Car, Inc. National Car Rental
System, Inc., Spirit Rent-A-Car, Inc. and Republic Industries,
Inc. ("Mitsubishi Fleet Lease");
(v) the Amended and Restated GM Series 1999-2 Support
Reimbursement Agreement of even date herewith, the Amended and
Restated Series 1999-2 Letter of Credit Agreement of even date
herewith, or any other agreement or instrument, as amended,
supplemented or superseded, with respect to the GM Supported
Letters of Credit; and
(vi) any other Indebtedness, liability or obligation of Borrower or
its subsidiaries for which there exists a Lender Accommodation
Obligation;
each as amended through and as in effect on the date of this Agreement.
"Contractual Obligation": as to any Person, any provision of any
security issued by such Person or of any agreement, instrument or other
undertaking to which such Person is a party or by which it or any of its
Property is bound.
"Default": any of the events specified in Section 7, whether or not any
requirement for the giving of notice, the lapse of time, or both, has been
satisfied.
"Dispose": with respect to any Property, to sell, lease, sell and lease
back, assign, convey, transfer or otherwise dispose thereof; and the term
"Disposed of" shall have correlative meaning.
"Dollars" and "$": lawful currency of the United States.
"ERISA": the Employee Retirement Income Security Act of 1974, as
amended from time to time.
"Event of Default": any of the events specified in Section 7, provided,
that any requirement for the giving of notice, the lapse of time, or both, has
been satisfied.
"Extensions of Credit": an amount equal to the sum of (a) the aggregate
principal amount of all Loans made by the Lender then outstanding and (b) the
Accommodation Obligation Amount then outstanding.
"Form 10 Registration Statement": the Borrower's Registration Statement
on Form 10 (Registration No. 1-15421) as filed with the SEC, as amended.
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"GAAP": generally accepted accounting principles in the United States
of America as in effect from time to time.
"GM Supported Letters of Credit": any letters of credit, up to an
aggregate face amount of $60,000,000 issued by Deutsche Bank, West LB or other
financial institutions for the benefit of The Bank of New York, as Enhancement
Agent or as Trustee, or its successors, or any replacements thereof, which are
supported in whole or in part by the credit of GM, including that certain
$45,000,000 Irrevocable Letter of Credit No. 22703100606WLB, as amended, which
is supported by that certain GM Series 1999-2 Support Agreement from GM in favor
of West LB dated June 30, 2000.
"GM": General Motors Corporation and any affiliate thereof.
"Governmental Authority": any nation or government, any state or other
political subdivision thereof and any entity exercising executive, legislative,
judicial, regulatory or administrative functions of or pertaining to government.
"Guarantee Obligation": as to any Person (the "guaranteeing person"),
any obligation of (a) the guaranteeing person or (b) another Person (including,
without limitation, any bank under any letter of credit), if to induce the
creation of such obligation of such other Person the guaranteeing person has
issued a reimbursement, counter indemnity or similar obligation, in either case
guaranteeing or in effect guaranteeing any Indebtedness, leases, dividends or
other obligations (the "primary obligations") of any other third Person (the
"primary obligor") in any manner, whether directly or indirectly, including,
without limitation, any obligation of the guaranteeing person, whether or not
contingent, (i) to purchase any such primary obligation or any Property
constituting direct or indirect security therefor, (ii) to advance or supply
funds (A) for the purchase or payment of any such primary obligation or (B) to
maintain working capital or equity capital of the primary obligor or otherwise
to maintain the net worth or solvency of the primary obligor, (iii) to purchase
Property, securities or services primarily for the purpose of assuring the owner
of any such primary obligation of the ability of the primary obligor to make
payment of such primary obligation or (iv) otherwise to assure or hold harmless
the owner of any such primary obligation against loss in respect thereof;
provided, however, that the term Guarantee Obligation shall not include
endorsements of instruments for deposit or collection in the ordinary course of
business. The amount of any Guarantee Obligation of any guaranteeing person
shall be deemed to be the lower of (a) an amount equal to the stated or
determinable amount of the primary obligation in respect of which such Guarantee
Obligation is made and (b) the maximum amount for which such guaranteeing person
may be liable pursuant to the terms of the instrument embodying such Guarantee
Obligation, unless such primary obligation and the maximum amount for which such
guaranteeing person may be liable are not stated or determinable, in which case
the amount of such Guarantee Obligation shall be such guaranteeing person's
maximum reasonably anticipated liability in respect thereof as determined by the
Borrower in good faith.
"Hedging Obligations": as defined in the Interim Facility Loan
Agreement.
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"Indebtedness": with respect to any Person at any date, without
duplication, and whether or not contingent, (a) all indebtedness of such Person
for borrowed money, (b) all obligations of such Person for the deferred purchase
price of Property or services (other than trade payables incurred in the
ordinary course of such Person's business), (c) all obligations of such Person
evidenced by notes, bonds, debentures or other similar instruments, (d) all
indebtedness created or arising under any conditional sale or other title
retention agreement with respect to Property acquired by such Person (even
though the rights and remedies of the seller or lender under such agreement in
the event of default are limited to repossession or sale of such Property), (e)
all Capital Lease Obligations of such Person, (f) all obligations of such
Person, contingent or otherwise, as an account party or applicant under
acceptance, letter of credit or similar facilities, (g) all obligations of such
Person, contingent or otherwise, to purchase, redeem, retire or otherwise
acquire for value any Capital Stock of such Person, (h) all Guarantee
Obligations of such Person in respect of obligations of the kind referred to in
clauses (a) through (g) above; (i) all obligations of the kind referred to in
clauses (a) through (h) above secured by (or for which the holder of such
obligation has an existing right, contingent or otherwise, to be secured by) any
Lien on Property (including, without limitation, accounts and contract rights)
owned by such Person, whether or not such Person has assumed or become liable
for the payment of such obligation and (j) for the purposes of Section 7(c)
only, all obligations of such Person in respect of Hedging Obligations.
"Indemnified Liabilities": as defined in Section 8.5.
"Indemnitee": as defined in Section 8.5.
"Insolvency": with respect to any Multiemployer Plan, the condition
that such Plan is insolvent within the meaning of Section 4245 of ERISA.
"Interest Payment Date": the last day of each March, June, September
and December to occur while any Loan is outstanding, and the Maturity Date.
"Interim Facility Loan Agreement": the Senior Loan Agreement, dated as
of May 26, 2000, entered into by the Borrower in connection with the Interim
Loan Facility, as the same may be amended, supplemented or otherwise modified
from time to time and any Indenture under which Exchange Notes (as defined in
such Senior Loan Agreement) are issued.
"Interim Facility Loan Documentation": the Interim Facility Loan
Agreement, together with all instruments and other agreements entered into by
the Borrower and certain of its Subsidiaries in connection therewith, as the
same may be amended, supplemented or otherwise modified from time to time.
"Interim Loan Facility": the $225,000,000 credit facility to be
provided to the Borrower pursuant to the Interim Facility Loan Documentation,
and any refinancings, refundings, renewals or extensions thereof (without any
increase in the principal amount thereof), including, without limitation, any
such refinancing with the issuance of senior notes (which may be sold in a
public offering or private placement) or other refinancing, in each case on
terms no less favorable to the Loan Parties and the Lender than the terms under
the Interim Loan Facility Agreement.
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"Interim Loan Initial Maturity Date": The earlier of June 30, 2001 or
the date the Interim Loan Facility is paid in full.
"Investments": as defined in Section 6.6.
"Lender": as defined in the preamble hereto.
"Lender Accommodation Obligations": the following obligations, if any,
of Lender:
(i) any direct obligation of, or Guarantee Obligation from Lender
in respect of the German Credit Facility (as defined under the
definition for "Continuing Obligations");
(ii) any direct obligation of, or Guarantee Obligation from Lender
in respect of the EuroDollar Note (as defined under the
definition for "Continuing Obligations");
(iii) any direct obligation of, or Guarantee Obligation from Lender
in respect of the Mitsubishi Property Leases (as defined under
the definition for "Continuing Obligations");
(iv) any direct obligation of, or Guarantee Obligation from Lender
in respect of the Mitsubishi Fleet Lease (as defined under the
definition for "Continuing Obligations");
(v) any direct obligation of, or Guarantee Obligation from Lender
in respect of the GM Supported Letters of Credit (whether to
GM or to Deutsche Bank or to West LB or any other Person); and
(vi) any other direct obligation or liability of, or Guarantee
Obligation from, Lender in respect of or related to any other
Indebtedness, obligation or liability of Borrower or its
subsidiaries;
"Lien": as defined in the Interim Facility Loan Agreement.
"Loan": any loan made by Lender pursuant to Section 2.3 of this
Agreement.
"Loan Documents": this Agreement and the Notes.
"Material Adverse Effect": a material adverse effect on (a) the
business, assets, property, condition (financial or otherwise) or prospects of
the Borrower and its Subsidiaries taken as a whole; (b) the validity or
enforceability of this Agreement or any of the other Loan Documents or the
rights or remedies of the Lender hereunder or thereunder; or (c) the ability of
the Borrower to repay the Obligations or of the Borrower to perform its
Obligations under this Agreement or any of the other Loan Documents.
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"Maturity Date": as defined in Section 2.3(b).
"Multiemployer Plan": a Plan that is a multiemployer plan as defined in
Section 4001(a)(3) of ERISA.
"Net Proceeds": as defined in the Interim Facility Loan Agreement.
"Non-Excluded Taxes": as defined in Section 2.9(a).
"Note": any promissory note evidencing any Loan.
"Obligations": the unpaid principal of and interest on (including,
without limitation, interest accruing after the maturity of the Loans and
Reimbursement Obligations and interest accruing after the filing of any petition
in bankruptcy, or the commencement of any insolvency, reorganization or like
proceeding, relating to the Borrower, whether or not a claim for post-filing or
post-petition interest is allowed in such proceeding) the Loans, the
Reimbursement Obligations and all other obligations and liabilities of the
Borrower to the Lender whether direct or indirect, absolute or contingent, due
or to become due, or now existing or hereafter incurred, which may arise under,
out of, or in connection with, this Agreement, any other Loan Document, the
Lender Accommodation Obligations, or any other document made, delivered or given
in connection herewith or therewith, whether on account of principal, interest,
reimbursement obligations, fees, indemnities, costs, expenses (including,
without limitation, all fees, charges and disbursements of counsel to the Lender
that are required to be paid by the Borrower pursuant hereto) or otherwise.
"Other Taxes": any and all present or future stamp or documentary taxes
or any other excise or property taxes, charges or similar levies arising from
any payment made hereunder or from the execution, delivery or enforcement of, or
otherwise with respect to, this Agreement or any other Loan Document.
"PBGC": the Pension Benefit Guaranty Corporation established pursuant
to Subtitle A of Title IV of ERISA (or any successor).
"Person": an individual, partnership, corporation, limited liability
company, business trust, joint stock company, trust, unincorporated association,
joint venture, Governmental Authority or other entity of whatever nature.
"Plan": at a particular time, any employee benefit plan that is covered
by ERISA and in respect of which the Borrower or a Commonly Controlled Entity is
(or, if such plan were terminated at such time, would under Section 4069 of
ERISA be deemed to be) an "employer" as defined in Section 3(5) of ERISA.
"Property": any right or interest in or to property of any kind
whatsoever, whether real, personal or mixed and whether tangible or intangible,
including, without limitation, Capital Stock.
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"Reimbursement Obligation": the obligation of the Borrower to reimburse
the Lender pursuant to Section 2.3 for amounts paid by Lender under any Lender
Accommodation Obligation.
"Reorganization": with respect to any Multiemployer Plan, the condition
that such plan is in reorganization within the meaning of Section 4241 of ERISA.
"Reportable Event": any of the events set forth in Section 4043(c) of
ERISA, other than those events as to which the thirty day notice period is
waived under subsections .22, .23, .27, .28, .29, .30, .31, .32, .34 or .35 of
PBGC Reg. ss. 4043.
"Requirement of Law": as to any Person, the Certificate of
Incorporation and By-Laws or other organizational or governing documents of such
Person, and any law, treaty, rule or regulation or determination of an
arbitrator or a court or other 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.
"Responsible Officer": the chief executive officer, president, chief
financial officer, controller, assistant controller or treasurer of the
Borrower, but in any event, with respect to financial matters, the chief
financial officer, controller, assistant controller or treasurer of the
Borrower.
"Restricted Payments": as defined in Section 6.5.
"Restricted Subsidiary": as defined in the Interim Facility Loan
Agreement.
"Revolving Credit Facility": the $175,000,000 credit facility provided
to the Borrower pursuant to the Revolving Credit Facility Loan Documentation,
and any refinancings, refundings, renewals or extensions thereof (without any
increase in the principal amount thereof or any shortening of the maturity of
any principal amount thereof).
"Revolving Credit Facility Loan Agreement": the Credit Agreement dated
as of May 26, 2000 entered into by the Borrower in connection with the Revolving
Credit Facility, as the same may be amended, supplemented or otherwise modified
from time to time.
"Revolving Credit Facility Loan Documentation": the Revolving Credit
Facility Loan Agreement, together with all instruments and other agreements
entered into by the Borrower and certain of its Subsidiaries in connection
therewith, as the same may be amended, supplemented or otherwise modified from
time to time.
"Revolving Credit Facility Termination Date": The earlier of June 30,
2003 and the date all revolving credit commitments are terminated under the
Revolving Credit Facility.
"SEC": the Securities and Exchange Commission (or successors thereto or
an analogous Governmental Authority).
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"Significant Subsidiary": any Subsidiary of Borrower that is a
"significant subsidiary" as that term is defined under Rule 405 of the
Securities Act of 1933.
"Single Employer Plan": any Plan that is covered by Title IV of ERISA,
but which is not a Multiemployer Plan.
"Spin-Off": as defined in the recitals to this Agreement.
"Spin-Off Date": the date, on or before July 31, 2000, upon which the
Spin-Off occurs.
"Spin-Off Documents" the Separation and Distribution Agreement, Tax
Sharing Agreement, Benefits Agreement and Transitional Services Agreement, each
as of the date hereof, as amended or modified from time to time, and all
agreements between Lender and Borrower with respect to the Spin-Off.
"Subsidiary": as to any Person, a corporation, partnership, limited
liability company or other entity of which shares of stock or other ownership
interests having ordinary voting power (other than stock or such other ownership
interests having such power only by reason of the happening of a contingency) to
elect a majority of the board of directors or other managers of such
corporation, partnership or other entity are at the time owned, or the
management of which is otherwise controlled, directly or indirectly through one
or more intermediaries, or both, by such Person. Unless otherwise qualified, all
references to a "Subsidiary" or to "Subsidiaries" in this Agreement shall refer
to a Subsidiary or Subsidiaries of the Borrower.
"Supplemental Credit Facility": the $40,000,000 credit facility to be
provided to the Borrower pursuant to the Supplemental Credit Facility
Documentation, and any refinancings, renewals, or extensions thereof (without
any increase in the principal amount thereof or any shortening of the maturity
of any principal amount thereof).
"Supplemental Credit Facility Documentation": the Credit Agreement,
dated as of May 26, 2000, entered into by the Borrower in connection with the
Supplemental Credit Facility, together with all instruments and other agreements
entered into by the Borrower and certain of its Subsidiaries in connection
therewith, as the same may be amended, supplemented or otherwise modified from
time to time.
"Supplemental Credit Facility Termination Date": the Revolving Credit
Termination Date as defined in the Supplemental Credit Facility Documentation.
"United States": the United States of America.
"U.S. Dollar Equivalent": on any date with respect to an amount
denominated in any currency other than Dollars, the equivalent on such date in
Dollars of such amount determined by the Lender by reference to such
publicly-available sources as the Lender shall reasonably select.
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"Vehicle": any motor vehicle used by the Borrower and its Subsidiaries
in the ordinary course of their motor vehicle rental businesses.
"Voting Stock": of any Person as of any date, the Capital Stock of such
Person that is at the time entitled to vote in the election of the board of
directors of such Person.
"West LB": Westdeudsche Landesbank Girozentrale, New York Branch.
1.2 Other Definitional Provisions.
(a) Unless otherwise specified therein, all terms defined
in this Agreement shall have the defined meanings when used in the other Loan
Documents or any certificate or other document made or delivered pursuant hereto
or thereto.
(b) As used herein and in the other Loan Documents, and
any certificate or other document made or delivered pursuant hereto or thereto,
accounting terms relating to the Borrower and its Subsidiaries not defined in
Section 1.1 and accounting terms partly defined in Section 1.1, to the extent
not defined, shall have the respective meanings given to them under GAAP.
(c) The words "hereof", "herein" and "hereunder" and
words of similar import when used in this Agreement shall refer to this
Agreement as a whole and not to any particular provision of this Agreement, and
Section, Schedule and Exhibit references are to this Agreement unless otherwise
specified.
(d) The meanings given to terms defined herein shall be
equally applicable to both the singular and plural forms of such terms.
(e) Unless otherwise specified herein or therein, any
definition of or reference to any agreement, instrument or other document herein
shall be construed as referring to such agreement, instrument or other document,
as from time to time amended, supplemented or modified (subject to any
restrictions on such amendments, supplements or modifications contained herein).
SECTION 2
LOANS
2.1 Lender Accommodation Obligations.
(a) As of the Spin-Off Date, the Lender may continue to
be subject to one or more Lender Accommodation Obligations.
(b) The Borrower may request that the Lender deliver or
cause to be delivered, in which event the Lender agrees to deliver, a renewal of
its guaranty or other credit support in respect of the GM Letter of Credit until
the date which is one year after the Spin-off Date. Lender shall have no
obligation whatsoever to deliver such renewal of its guaranty or other credit
support
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in respect of the GM Letter of Credit or any replacement letter of credit
therefor after the date which is one year after the Spin-off Date. To the extent
that Lender provides its guaranty or other credit support in respect of the GM
Letter of Credit or any replacement letter of credit therefor, the same shall be
deemed a Lender Accommodation Obligation hereunder.
(c) All Lender Accommodation Obligations shall expire no
later than the first anniversary of the Spin-Off Date, except for Lender
Accommodation Obligations related to the EuroDollar Note, the Mitsubishi
Property Leases and the Mitsubishi Fleet Lease. Subject to Section 2.1(b),
Lender shall have the right, but not the obligation, to at any time obtain
alternative credit support reasonably acceptable to Borrower and in compliance
with its outstanding Indebtedness in lieu of any of the Lender Accommodation
Obligations; provided, however, that Borrower shall not incur any incremental
costs (including as part of costs for such purposes, the Accommodation Fees
described in Section 2.2 below) as a result of Lender's efforts to obtain such
alternative credit support, and that Borrower's obligations under the Continuing
Obligations are not materially adversely affected thereby.
2.2 Fees and Other Charges.
(a) The Borrower shall pay to Lender the Accommodation
Fees in respect of all outstanding Lender Accommodation Obligations in
accordance with Schedule 2.2 hereof, in the amounts and on the dates set forth
in Schedule 2.2 hereof (the "Accommodation Fees").
(b) In addition to the Accommodation Fees, the Borrower
shall pay or reimburse the Lender for such normal and customary costs and
expenses as are incurred by the Lender in issuing, negotiating, effecting
payment under or amending any Lender Accommodation Obligation after the Spin-off
Date.
2.3 Reimbursement Obligation of the Borrower; Loans; Evidence of
Debt.
(a) The Borrower agrees to reimburse the Lender, on
demand (subject to the provisions of Section 2.3(b) hereof) on each date on
which the Lender notifies the Borrower of the date and amount demanded under any
Lender Accommodation Obligation, for the amount (i) so demanded and (ii) except
to the extent excluded from the Borrower's payment obligation under Section 2.9,
any taxes, levies, imports, duties, fees, charges, deductions, withholdings, and
other costs or expenses incurred by the Lender in connection with such payment
(the amounts described in the foregoing clauses (i) and (ii), collectively, the
"Payment Amount"). The Borrower's obligation to pay the Payment Amount under
this Section 2.3(a) shall be a Reimbursement Obligation immediately due and
payable hereunder. Each Reimbursement Obligation shall be paid to Lender at its
address for notices specified herein in lawful money of the United States of
America and in immediately available funds.
(b) Notwithstanding anything contained in Section 2.3(a)
hereof, if any of the Revolving Credit Facility, the Interim Loan Facility or
the Supplemental Credit Facility shall be in effect as of the date of Lender's
demand for any Payment Amount, the portion of the demanded Payment Amount set
forth under Section 2.3(a)(i) shall become a Loan hereunder (with the
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remaining portion continuing as a Reimbursement Obligation). All Loans shall
mature on September 29, 2003 ("Maturity Date"). Borrower shall pay the principal
amount of all Loans, plus any accrued and unpaid interest thereon, on the
Maturity Date.
(c) Interest shall be payable on each Reimbursement
Obligation and each Loan from the date of the applicable funding until payment
in full at the rate and at such time as set forth in Section 2.7 hereof.
(d) The Lender shall maintain an account or accounts
evidencing Indebtedness of the Borrower to Lender resulting from each
Reimbursement Obligation and each Loan from time to time, including the amounts
of principal and interest payable and paid to Lender from time to time under
this Agreement. The accounts of Lender maintained pursuant to this Section
2.3(d) shall, to the extent permitted by applicable law, be prima facie evidence
of the existence and amounts of the Obligations of the Borrower therein
recorded; provided, however, that the failure of the Lender to maintain any such
account, or any error therein, shall not in any manner affect the obligation of
the Borrower to repay (with applicable interest) any and all Obligations of the
Borrower to the Lender.
(e) The Borrower agrees that, upon the request of the
Lender, the Borrower will promptly execute and deliver to Lender outside the
State of Florida a promissory note of the Borrower evidencing any Loans
substantially in the form of Exhibit A, with appropriate insertions as to date
and principal amount; together with such affidavits of out-of-state execution
and delivery as shall be reasonably required by Lender.
(f) The Borrower and the Lender shall, substantially
simultaneously with the execution and delivery of this Agreement, execute and
deliver, to each other and to the lenders of the Interim Loan Facility, the
Revolving Credit Facility and the Supplemental Credit Facility, a Subordination
Agreement substantially in the form of Exhibit B.
2.4 Obligations Absolute. (a) The Borrower's obligations under
this Section 2 shall be absolute and unconditional under any and all
circumstances and irrespective of any set-off, counterclaim or defense to
payment that the Borrower may have or have had against Lender, any beneficiary
of a Lender Accommodation Obligation or any other Person. The Borrower also
agrees with Lender that Lender shall not be responsible for, and the Borrower's
Obligations under Section 2 shall not be affected by, among other things, any
dispute between or among the Borrower and any beneficiary of any Lender
Accommodation Obligation or any other party to which any Lender Accommodation
Obligation may be transferred or any claims whatsoever of the Borrower against
any beneficiary of such Lender Accommodation Obligation or any such transferee.
(b) The Borrower shall indemnify and hold the Lender
harmless from and against any and all losses, claims, damages, liabilities,
costs and expenses (including reasonable attorneys fees and paralegal fees
incurred, whether or not suit be brought, and in all appeals and in all
bankruptcy proceedings), which the Lender may suffer or incur in connection with
any Lender Accommodation Obligation and any documents relating thereto
("Losses"), except such Losses directly resulting from the gross negligence or
wilful misconduct of the Lender as determined pursuant to a final,
non-appealable order of a court of competent jurisdiction. The Borrower assumes
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all risks with respect to the acts or omissions of the beneficiary of any Lender
Accommodation Obligation. The provisions of this Section 2 shall survive the
payment of Obligations and the termination or non-renewal of this Agreement.
2.5 Optional Prepayments. The Borrower may at any time and from
time to time prepay the Loans, in whole or in part, without premium or penalty,
upon irrevocable notice delivered to the Lender and at least one Business Day
prior thereto, which notice shall specify the date and amount of such
prepayment.
2.6 Mandatory Prepayments.
(a) On the 91st day immediately following the occurrence
of a Change of Control, the Borrower shall, without notice or demand,
immediately prepay all Loans, replace outstanding Lender Accommodation
Obligations or cash collateralize such Lender Accommodation Obligations, and
cause all Lender Accommodation Obligations to be terminated by the beneficiaries
thereof.
(b) If the Borrower or any of its Subsidiaries shall
receive any Net Proceeds from any Asset Sale (other than Net Proceeds that are
permitted to be reinvested in Borrower's business as set forth in Section 6.5 of
the Interim Facility Loan Agreement) or from issuance of debt securities or
equity securities (other than equity securities that may be issued without
prepaying Loans pursuant to Section 2.5(b) of the Interim Facility Loan
Agreement), then, to the extent such Net Proceeds are not required to be applied
to any amounts owed under the Revolving Credit Facility, the Interim Loan
Facility or the Supplemental Credit Facility, such Net Proceeds shall be used to
the extent permitted under such Facilities to extinguish or prepay or otherwise
cash collateralize the Continuing Obligations for the purpose of obtaining the
release of Lender from, or to mitigate the Lender's exposure under, any of its
related Lender Accommodation Obligations.
2.7 Interest Rates and Payment Dates.
(a) Each Reimbursement Obligation and each Loan shall
bear interest for each day on which it is outstanding at a rate per annum equal
to the lesser of (i) 18% per annum; and (ii) the highest annual rate permitted
by applicable law.
(b) If all or a portion of any interest payable on any
Loan or Reimbursement Obligation or any commitment fee or other amount payable
hereunder shall not be paid when due (whether at the stated maturity, by
acceleration or otherwise), such overdue interest amount shall bear interest at
a rate per annum equal to the lesser of (i) 18% per annum; and (ii) the highest
annual rate permitted by applicable law, from the date of such non-payment until
such amount is paid in full.
(c) Accrued interest hereunder (up to 14% per annum)
shall be payable in arrears quarterly; provided, however, that all interest
accruing pursuant to paragraph (b) of this Section 2.7, and all interest
accruing pursuant to paragraph (a) of this Section 2.7 on principal that is due
but unpaid, shall be due and payable from time to time on demand by the Lender.
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(d) Accrued interest in excess of 14% per annum shall be
paid by capitalizing such interest quarterly in arrears as additional Loans,
which additional Loans shall thereafter bear interest in accordance with this
Section 2.7 and be payable on the Maturity Date, with or without demand by the
Lender.
2.8 Computation of Interest and Fees. Interest and fees payable
pursuant hereto shall be calculated on the basis of a 365-day year (or 366, as
the case may be) for the actual days elapsed.
2.9 Taxes.
(a) All payments made by the Borrower under this
Agreement shall be made free and clear of, and without deduction or withholding
for or on account of, any present or future income, stamp or other taxes,
levies, imposts, duties, charges, fees, deductions or withholdings, now or
hereafter imposed, levied, collected, withheld or assessed by any Governmental
Authority, excluding franchise taxes and taxes imposed on or measured by net
income, receipts or capital imposed by reason of any connection between, as
applicable, the Lender, any Assignee or Participant or other recipient and the
relevant taxing jurisdiction, including, without limitation, a connection
arising from such Person being or having been a citizen, domiciliary, or
resident of such jurisdiction, being organized in such jurisdiction, or having
or having had a permanent establishment or fixed place of business therein, but
excluding a connection arising solely from such Person having executed,
delivered, performed its obligations or received any payment under this
Agreement. If any such non-excluded taxes, levies, imposts, duties, charges,
fees, deductions or withholdings ("Non- Excluded Taxes") or any Other Taxes are
required to be withheld from any amounts payable to the Lender hereunder, the
amounts so payable to the Lender shall be increased to the extent necessary to
yield to Lender (after payment of all Non-Excluded Taxes and Other Taxes)
interest or any such other amounts payable hereunder at the rates or in the
amounts specified in this Agreement.
(b) In addition, the Borrower shall pay any Other Taxes
to the relevant Governmental Authority in accordance with applicable law.
(c) Whenever any Non-Excluded Taxes or Other Taxes are
payable by the Borrower, as promptly as possible thereafter the Borrower shall
send to the Lender, a certified copy of an original official receipt received by
the Borrower showing payment thereof. If the Borrower fails to pay any
Non-Excluded Taxes or Other Taxes when due to the appropriate taxing authority
or fails to remit to the Lender the required receipts or other required
documentary evidence, the Borrower shall indemnify the Lender for any
incremental taxes, interest or penalties that may become payable by Lender as a
result of any such failure. The agreements in this Section shall survive the
termination of this Agreement and the payment of the Loans and all other amounts
payable hereunder.
(d) If the Lender receives a refund or offset in respect
of Non-Excluded Taxes or Other Taxes (a "Refund") paid by the Borrower, which in
the reasonable judgment of Lender is allocable to such Non-Excluded Taxes or
Other Taxes paid by the Borrower, it shall promptly pay such Refund, together
with any other amounts paid by the Borrower in connection with such Refunded
Taxes or Other Taxes, to the Borrower, net of all out-of-pocket expenses of the
Lender
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incurred in obtaining such Refund, provided, however, that the Borrower agrees
to promptly return such Refund to the Lender, as the case may be, if it receives
notice from the Lender that Lender is required to repay such Refund.
2.10 Lender Accommodation Obligations Payable in Foreign
Currencies. Notwithstanding any other provision of this Section 2, in the event
that any Lender Accommodation Obligation is payable in any foreign currency, the
amount of the Reimbursement Obligation or Loan pursuant to Section 2 in respect
of such Lender Accommodation Obligation shall bear interest as provided in
Section 2.7 with respect to amounts owing in Dollars; provided, that Lender
shall reasonably determine the U.S. Dollar Equivalent of the amount of such
Reimbursement Obligation or Loan as of the date it was funded by reference to
such publicly available sources as the Lender shall reasonably select, and the
Borrower's obligation to repay such Reimbursement or Loan Obligation shall be
converted to such U.S. Dollar Equivalent as of the date of such funding.
SECTION 3
TERMINATION OF CERTAIN COVENANTS
3.1 Termination of Certain Covenants. Notwithstanding any other
provision of any of the Loan Documents, effective upon the date on which the
only remaining outstanding Lender Accommodation Obligations are in respect of
the EuroDollar Note, the Mitsubishi Property Leases and the Mitsubishi Fleet
Lease, and all other Lender Accommodation Obligations have been paid, satisfied
and discharged in full, or have terminated or expired, or have been waived by
all of the respective beneficiaries of such Lender Accommodation Obligations,
such that the Lender shall have no obligations or liability whatsoever in
respect thereof, the covenants of the Borrower set forth in Sections 6.1, 6.2,
6.3, 6.4, 6.5, 6.6, 6.8, and 6.9 of this Agreement shall lapse and terminate,
and have no further force nor effect. Except to the extent and under the
circumstances set forth in this Section 3.1, all provisions of Section 6 of this
Agreement shall remain in full force and effect in accordance with the
respective terms thereof.
SECTION 4
CONDITIONS PRECEDENT
4.1 Conditions to Closing Date. The Closing Date shall be the date
on which the following conditions precedent shall have been fulfilled or waived
in writing by Lender:
(a) Loan Documents. The Lender shall have received (i)
this Agreement, executed and delivered by a duly authorized officer of the
Borrower, and (ii) a Note with respect to each Loan made by Lender prior to the
Spin-off Date.
(b) Related Agreements and Documents. The Lender shall
have received, true and correct copies, certified as to authenticity by the
Borrower, of (i) Revolving Credit Facility Loan Documentation, (ii) the Interim
Facility Loan Documentation, and (iii) the Supplemental Credit
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Facility Documentation, which shall not be different in any material respect
from the forms thereof delivered to the Lender prior to the Closing Date.
(c) Consummation of Spin-Off. The Spin-Off shall have
been consummated substantially in accordance with the description thereof set
forth in the Form 10 Registration Statement. Lender shall have no obligation
whatsoever to cause the Spin-Off to occur; and may determine for any reason or
no reason in its sole and absolute discretion not to cause the Spin-Off to occur
or to cease efforts to effect the Spin-Off.
(d) Legal Opinion. The Lender shall have received the
legal opinion of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, general counsel of the Borrower and its
Subsidiaries, as to the due authorization, execution and delivery of, and the
enforceability of, the Loan Documents, in form and substance reasonably
acceptable to Lender. Such legal opinion shall cover such other matters incident
to the transactions contemplated by this Agreement as the Lender may reasonably
require.
SECTION 5
AFFIRMATIVE COVENANTS
The Borrower hereby agrees that, so long as any Lender Accommodation
Obligation remains outstanding or any Loan or other amount is owing to the
Lender, the Borrower shall, and shall cause each of its Subsidiaries to:
5.1 Financial Statements. Furnish to each Lender:
(a) as soon as available, but in any event within 90 days
after the end of each fiscal year of the Borrower, a copy of the audited
consolidated balance sheet of the Borrower and its consolidated Subsidiaries as
at the end of such year and the related audited consolidated statements of
income and of cash flows for such year, setting forth in each case in
comparative form the figures as of the end of and for the previous year,
reported on without a "going concern" or like qualification or exception, or
qualification arising out of the scope of the audit, by independent certified
public accountants of nationally recognized standing; provided, however, that
delivery to Lender of the Borrower's annual reports on Form 10-K as filed timely
with and in accordance with the regulations of the SEC shall be deemed to
satisfy the requirements of this Section 5.1(a);
(b) as soon as available, but in any event not later than
45 days after the end of each of the first three quarterly periods of each
fiscal year of the Borrower, the unaudited consolidated balance sheet of the
Borrower and its consolidated Subsidiaries as at the end of such quarter and the
related unaudited consolidated statements of income and of cash flows for such
quarter and the portion of the fiscal year through the end of such quarter,
setting forth in each case in comparative form the figures as of the end of and
for the corresponding period in the previous year, certified by a Responsible
Officer as being fairly stated in all material respects (subject to normal
year-end audit adjustments); provided, however, that delivery to Lender of the
Borrower's quarterly reports on Form 10-Q as filed timely with and in accordance
with the regulations of the SEC shall be deemed to satisfy the requirements of
this Section 5.1(b); and
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(c) from and after the Closing Date until the Lender
Accommodation Obligations with respect to the GM Letter of Credit (or any
replacement letter of credit therefor) and the German Credit Facility are
terminated or extinguished, as soon as available, but in any event not later
than 15 days after the end of each month, the unaudited consolidated balance
sheets of the Borrower and its Subsidiaries as at the end of such month and the
related unaudited consolidated statements of income and of cash flows for such
month and the portion of the fiscal year through the end of such month, setting
forth in each case in comparative form the figures as of the end of and for the
corresponding period in the previous year, certified by a Responsible Officer as
being fairly stated in all material respects (subject to normal year-end audit
adjustments);
all such financial statements to be prepared in reasonable detail and in
accordance with GAAP applied consistently throughout the periods reflected
therein and with prior periods (except as approved by such accountants or
officer, as the case may be, and disclosed therein).
5.2 Certificates; Other Information. Furnish to the Lender:
(a) concurrently with the delivery of the financial
statements referred to in Section 5.1(a), a certificate of the independent
certified public accountants reporting on such financial statements stating that
in making the examination necessary therefor no knowledge was obtained of any
Default or Event of Default, except as specified in such certificate (it being
understood that such certificate shall be limited to the items that independent
certified public accountants are permitted to cover in such certificates
pursuant to their professional standards and customs of the profession);
(b) concurrently with the delivery of any financial
statements pursuant to Section 5.1, (i) a certificate of a Responsible Officer
stating that, to the best of such Responsible Officer's knowledge, each Loan
Party during such period has observed or performed all of its covenants and
other agreements, and satisfied every condition, contained in this Agreement and
the other Loan Documents to which it is a party to be observed, performed or
satisfied by it, and that such Responsible Officer has obtained no knowledge of
any Default or Event of Default except as specified in such certificate.
(c) promptly upon the effectiveness thereof, copies of
substantially final drafts of any proposed amendment, supplement, waiver or
other modification with respect to the Revolving Credit Facility Loan
Documentation, the Interim Facility Loan Documentation, the Supplemental Credit
Facility Documentation or any documentation underlying any Continuing
Obligations;
(d) within five days after the same are sent, copies of
all financial statements and reports that the Borrower sends to the holders of
any class of its debt securities or public equity securities and, within five
days after the same are filed, copies of all financial statements and reports
that the Borrower may make to, or file with, the SEC;
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(e) promptly, notice of any development, event, or
condition that, individually or in the aggregate with other developments, events
or conditions, has had or could reasonably be expected to result in a Material
Adverse Effect;
(f) promptly, such additional financial and other
information as Lender may from time to time reasonably request.
5.3 Payment of Obligations. Pay, discharge or otherwise satisfy at
or before maturity or before they become delinquent, as the case may be, all its
material obligations of whatever nature, except where the amount or validity
thereof is currently being contested in good faith by appropriate proceedings
and reserves in conformity with GAAP with respect thereto have been provided on
the books of the Borrower or its Subsidiaries, as the case may be.
5.4 Conduct of Business and Maintenance of Existence, etc. (a)(i)
Preserve, renew and keep in full force and effect its corporate, limited
liability company or partnership existence and (ii) take all reasonable action
to maintain all rights, privileges and franchises necessary or desirable in the
normal conduct of its business, except, in each case, as otherwise permitted by
Section 6.3 and except, in the case of clause (ii) above, to the extent that
failure to do so could not reasonably be expected to have a Material Adverse
Effect; and (b) comply with all Contractual Obligations and Requirements of Law,
except to the extent that failure to comply therewith could not, in the
aggregate, reasonably be expected to have a Material Adverse Effect.
5.5 Maintenance of Property; Insurance. (a) Keep all Property and
systems useful and necessary in its business in good working order and
condition, ordinary wear and tear excepted and (b) maintain with financially
sound and reputable insurance companies insurance on all its Property in at
least such amounts and against at least such risks (but including in any event
public liability, product liability and business interruption) as are usually
insured against in the same general area by companies engaged in the same or a
similar business.
5.6 Inspection of Books and Records; Discussions. From the Closing
Date until satisfaction or termination of all Lender Accommodation Obligations
in respect of the GM Letter of Credit and the Geman Credit Facility, (a) keep
proper books of records and account in which full, true and correct entries in
conformity with GAAP and all Requirements of Law shall be made of all dealings
and transactions in relation to its business and activities and (b) permit
representatives of the Lender (at the expense of the Lender unless an Event of
Default has occurred and is continuing, in which case, at the expense of the
Borrower) to examine and make abstracts from any of its books and records, at
any reasonable time and as often as may reasonably be desired and to discuss the
business, operations, prospects and financial and other condition of the
Borrower and its Subsidiaries with officers and employees of the Borrower and
its Subsidiaries and with its independent certified public accountants (subject
to the confidentiality provisions contained in Section 8.14).
5.7 Notices. Promptly give notice to the Lender of:
(a) the occurrence of any Default or Event of Default;
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(b) any (i) default or event of default under any
material Contractual Obligation of the Borrower or any of its Subsidiaries or
(ii) litigation, investigation or proceeding which may exist at any time between
the Borrower or any of its Subsidiaries and any Governmental Authority, that in
either case, if not cured or if adversely determined, as the case may be, could
reasonably be expected to have a Material Adverse Effect;
(c) any litigation or proceeding affecting the Borrower
or any of its Subsidiaries in which the amount involved is $5,500,000 or more
and not covered by insurance or in which injunctive or similar relief is sought;
(d) the following events, as soon as possible and in any
event within 30 days after the Borrower knows or has reason to know thereof: (i)
the occurrence of any Reportable Event with respect to any Plan, a failure to
make any required contribution to a Plan, the creation of any Lien in favor of
the PBGC or a Plan or any withdrawal from, or the termination, Reorganization or
Insolvency of, any Multiemployer Plan or (ii) the institution of proceedings or
the taking of any other action by the PBGC or the Borrower or any Commonly
Controlled Entity or any Multiemployer Plan with respect to the withdrawal from,
or the termination, Reorganization or Insolvency of, any Plan that, in either
case could reasonably be expected to result in liability in excess of
$5,500,000; and
(e) any development or event that has had or could
reasonably be expected to have a Material Adverse Effect.
Each notice pursuant to this Section 5.7 shall be accompanied by a statement of
a Responsible Officer setting forth details of the occurrence referred to
therein and stating what action the Borrower or the relevant Subsidiary proposes
to take with respect thereto.
5.8 Further Assurances. From time to time execute and deliver, or
cause to be executed and delivered, such additional instruments, certificates or
documents, and take such actions, as the Lender may reasonably request for the
purposes of implementing or effectuating the provisions of this Agreement and
the other Loan Documents.
5.9 Refinancing Plan. If the Borrower identifies additional
sources of liquidity which were not identified in the projections delivered to
the Agents prior to May 26, 2000, or if the Borrower otherwise generates excess
cash from its operations, in each case prior to October 4, 2000, which
individually or together provide the Borrower with cash and other liquidity
which a majority of the disinterested members of Borrower's Board of Directors,
in the good faith exercise of their reasonable business judgment, determine is
more than sufficient to allow Borrower to operate in the ordinary course of
business, then Borrower shall apply such excess cash or liquidity (including by
borrowing up to $60 million under the Revolving Credit Facility, or as much
thereof as Borrower may borrow without borrowing under the Supplemental Credit
Facility) to cash collateralize the GM Letter of Credit or any replacement
letter of credit therefor or the underlying obligations supported by the GM
Letter of Credit such that the Lender Accommodation Obligations with respect to
the GM Letter of Credit or any replacement letter of credit therefor can be
terminated (the "Re-Financing
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Plan"). Borrower shall provide written reports to Lender at the end of each
month, following the Spin-Off, with respect to its efforts and progress in
obtaining and closing the Re-Financing Plan.
SECTION 6
NEGATIVE COVENANTS
The Borrower hereby agrees that, so long as any Extension of Credit
remains outstanding or any other amount is owing to the Lender hereunder, the
Borrower shall not, and shall not permit any of its Subsidiaries to, directly or
indirectly (provided that nothing contained herein shall limit the ability of
the Borrower and its subsidiaries to enter into and consummate the Spin-Off and
transactions that are set forth in or permitted by the Spin-Off Documents, and
that, for the purposes of this Section 6, the term "Indebtedness" shall have the
definition of such term under the Interim Facility Loan Agreement):
6.1 Limitation on Indebtedness. Create, incur or assume any
Indebtedness, to the extent that such Indebtedness would contravene any covenant
in the Interim Facility Loan Documentation. Borrower and its subsidiaries shall
not incur Indebtedness under the Revolving Credit Facility, the Interim Loan
Facility and the Supplemental Credit Facility in the aggregate principal amount
in excess of $400,000,000 plus any PIK Interest Amount.
6.2 Limitation on Liens. Create, or cause to exist any consensual
Lien upon any of its Property, whether now owned or hereafter acquired, except
for Liens permitted under the Interim Facility Loan Documentation.
6.3 Limitation on Fundamental Changes. Enter into any merger,
consolidation or amalgamation, or liquidate, wind up or dissolve itself (or
suffer any liquidation or dissolution), or Dispose of any of its Property or
business, (including, without limitation, receivables and leasehold interests),
whether now owned or hereafter acquired, except as permitted under the Interim
Facility Loan Documentation.
6.4 Limitation on Disposition of Subsidiary. Issue or sell any
shares of any Subsidiary's Capital Stock to any Person, except as permitted
under the Interim Facility Loan Documentation.
6.5 Limitation on Restricted Payments. Declare or pay any dividend
on, or make any payment on account of, the purchase, redemption, defeasance,
retirement or other acquisition of, any Capital Stock of the Borrower or any
Subsidiary, whether now or hereafter outstanding, or make any other distribution
in respect thereof, either directly or indirectly, whether in cash or property
or in obligations of the Borrower or any Subsidiary, or enter into any
derivatives or other transaction with any financial institution, commodities or
stock exchange or clearinghouse (a "Derivatives Counterparty") obligating the
Borrower or any Subsidiary to make payments to such Derivatives Counterparty as
a result of any change in market value of any such Capital Stock (collectively,
"Restricted Payments"), except as permitted by the Revolving Credit Facility
Loan Documentation or the Interim Facility Loan Documentation.
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6.6 Limitation on Investments. Make any advance, loan, extension
of credit (by way of guaranty or otherwise) or capital contribution to, or
purchase any Capital Stock, bonds, notes, debentures or other debt securities
of, or any assets constituting an ongoing business from, or make any other
investment in, any other Person (all of the foregoing, "Investments"), except as
permitted by the Interim Facility Loan Documentation.
6.7 Limitation on Transactions with Affiliates. Enter into any
transaction, including, without limitation, any purchase, sale, lease or
exchange of Property, the rendering of any service or the payment of any
management, advisory or similar fees, with any Affiliate (other than the
Borrower or any Subsidiary) unless such transaction is (a) otherwise permitted
under this Agreement, (b) in the ordinary course of business of the Borrower or
such Subsidiary, as the case may be, and (c) upon fair and reasonable terms no
less favorable to the Borrower or such Subsidiary, as the case may be, than it
would obtain in a comparable arm's length transaction with a Person that is not
an Affiliate except, in any case under this Section 6.7, as permitted by the
Interim Facility Loan Documentation.
6.8 Limitation on Restrictions on Subsidiary Distributions. Create
or cause to exist or become effective any consensual encumbrance or restriction
on the ability of any Subsidiary to (a) pay dividends or make distributions in
respect of any Capital Stock of such Subsidiary held by, or pay any Indebtedness
owed to, the Borrower or any other Subsidiary, (b) make loans or advances to the
Borrower or any other Subsidiary or (c) transfer any of its properties or assets
to the Borrower or any other Subsidiary, except in each case as permitted by the
Interim Facility Loan Documentation.
6.9 Limitation on Lines of Business. Engage in any business,
either directly or through any Subsidiary, except as permitted under the Interim
Facility Loan Documentation.
SECTION 7
EVENTS OF DEFAULT
If any of the following events shall occur and be continuing:
(a) The Borrower shall fail to pay any principal of any
Loan or Reimbursement Obligation when due in accordance with the terms hereof;
or the Borrower shall fail to pay any interest on any Loan or Reimbursement
Obligation, or any other amount payable hereunder or under any other Loan
Document, in each case within five days after any such interest or other amount
becomes due in accordance with the terms hereof or thereof; or
(b) The Borrower shall default (other than as provided in
paragraph (a) of this Section 7) in the observance or performance of any
agreement contained in this Agreement or any other Loan Document to the extent
such agreement is in effect as of such time, and such other default (except
under Section 5.7(a)) shall continue unremedied for a period of 45 days after
written notice to the Borrower by the Lender; or
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(c) The Borrower or any of its Subsidiaries shall default
in the payment of or with respect to, or the observance or performance of any
agreement or condition relating to, any Indebtedness or contained in any
instrument or agreement evidencing, securing or relating thereto, which default
has resulted in such Indebtedness being declared due prior to its stated
maturity, except to the extent such default is rescinded; provided, that a
default, event or condition described in this paragraph (c) shall not at any
time constitute an Event of Default unless, at such time, one or more defaults,
events or conditions of the type described in this paragraph (c) shall have
occurred and be continuing with respect to Indebtedness the outstanding
principal amount of which exceeds in the aggregate $10,000,000 ($25,000,000
after the first anniversary of this Agreement); or
(d) (i) The Borrower or any of its Significant
Subsidiaries shall commence any case, proceeding or other action (A) under any
existing or future law of any jurisdiction, domestic or foreign, relating to
bankruptcy, insolvency, reorganization or relief of debtors, seeking to have an
order for relief entered with respect to it, or seeking to adjudicate it a
bankrupt or insolvent, or seeking reorganization, arrangement, adjustment,
winding-up, liquidation, dissolution, composition or other relief with respect
to it or its debts, or (B) seeking appointment of a receiver, trustee,
custodian, conservator or other similar official for it or for all or any
substantial part of its assets, or the Borrower or any of its Significant
Subsidiaries shall make a general assignment for the benefit of its creditors;
or (ii) there shall be commenced against the Borrower or any of its Significant
Subsidiaries any case, proceeding or other action of a nature referred to in
clause (i) above that (A) results in the entry of an order for relief or any
such adjudication or appointment or (B) remains undismissed, undischarged or
unbonded for a period of 60 days; or (iii) there shall be commenced against the
Borrower or any of its Significant Subsidiaries any case, proceeding or other
action seeking issuance of a warrant of attachment, execution, distraint or
similar process against all or any substantial part of its assets that results
in the entry of an order for any such relief that shall not have been vacated,
discharged, or stayed or bonded pending appeal within 60 days from the entry
thereof; or (iv) the Borrower or any of its Significant Subsidiaries shall take
any action in furtherance of, or indicating its consent to, approval of, or
acquiescence in, any of the acts set forth in clause (i), (ii), or (iii) above;
or (v) the Borrower or any of its Significant Subsidiaries shall generally not,
or shall be unable to, or shall admit in writing its inability to, pay its debts
as they become due; or
(e) (i) Any Person shall engage in any "prohibited
transaction" (as defined in Section 406 of ERISA or Section 4975 of the Code)
involving any Plan, (ii) any "accumulated funding deficiency" (as defined in
Section 302 of ERISA), whether or not waived, shall exist with respect to any
Plan, or any Lien in favor of the PBGC or a Plan shall arise on the assets of
the Borrower or any Commonly Controlled Entity, (iii) a Reportable Event shall
occur with respect to, or proceedings shall commence to have a trustee
appointed, or a trustee shall be appointed, to administer or to terminate, any
Single Employer Plan, which Reportable Event or commencement of proceedings or
appointment of a trustee is, in the reasonable opinion of the Lender, likely to
result in the termination of such Plan for purposes of Title IV of ERISA, (iv)
any Single Employer Plan shall terminate for purposes of Title IV of ERISA, (v)
the Borrower or any Commonly Controlled Entity shall, or in the reasonable
opinion of the Lender shall be likely to, incur any liability in connection with
a withdrawal from, or the Insolvency or Reorganization of, a Multiemployer Plan
or (vi) any other event or condition shall occur or exist with respect to a
Plan; and in each case in
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clauses (i) through (vi) above, such event or condition, together with all other
such events or conditions, if any, could, reasonably be expected to have a
Material Adverse Effect; or
(f) One or more judgments or decrees shall be entered
against the Borrower or any of its Subsidiaries involving for the Borrower and
its Subsidiaries taken as a whole a liability (not paid or fully covered by
insurance) of $10,000,000 ($25,000,000 after the first anniversary of this
Agreement) or more, and all such judgments or decrees shall not have been
vacated, discharged, stayed or bonded pending appeal within 60 days from the
entry thereof;
then, and in any such event, (A) if such event is an Event of Default specified
in clause (i) or (ii) of paragraph (e) above with respect to the Borrower,
automatically the Loans (with accrued interest thereon) and all other amounts
owing under this Agreement and the other Loan Documents (including, without
limitation, all Accommodation Obligation Amounts, whether or not the
beneficiaries of the then outstanding Lender Accommodation Obligations shall
have made demand therefore) shall immediately become due and payable, and (B) if
such event is any other Event of Default, the Lender, may, by notice to the
Borrower, declare the Loans hereunder (with accrued interest thereon) and all
other amounts owing under this Agreement and the other Loan Documents
(including, without limitation, all Accommodation Obligation Amounts, whether or
not the beneficiaries of the then outstanding Lender Accommodation Obligations
shall have made demand therefore) to be due and payable forthwith, whereupon the
same shall immediately become due and payable.
SECTION 8
MISCELLANEOUS
8.1 Amendments and Waivers. (a) Neither this Agreement or any
other Loan Document, nor any terms hereof or thereof may be amended,
supplemented or modified except in pursuant to written agreement signed by both
Lender and Borrower.
(b) Notwithstanding anything to the contrary provided in
this provision or elsewhere in this Agreement, the Lender agrees that, to the
extent Section 5, 6 or 7 of the Interim Facility Loan Agreement (and/or related
definitions) is amended, modified or deleted, and/or compliance with the Interim
Facility Loan Agreement is waived pursuant to and in accordance with the
provisions of the Interim Facility Loan Agreement, and copies of any such
amendment, modification or waiver are delivered to the Lender promptly after the
execution thereof, then Section 5, 6 or 7 hereof (and/or related definitions),
as the case may be, shall be deemed respectively so amended, modified or
deleted, and/or compliance with such sections shall be deemed so waived, in the
same manner and to the same extent as the provision is amended, modified or
deleted, or compliance waived, by the parties to the Interim Facility Loan
Agreement (even if the wording in Sections 5, 6 and 7 of those Agreements differ
in form, but not in substance, before such amendment modification, deletion or
waiver). In the event of the final termination of the Interim Facility Loan
Agreement, then, at such time, all references in this Agreement and the other
Loan Documents to the "Interim Facility Loan Agreement" or the "Interim Facility
Loan Documentation" in Sections 1 (other than in the definitions of those terms
in this Agreement), 2, 6, and this Section 8.1(b) (other than this sentence)
shall be deemed to refer instead to the "Revolving Credit Facility Loan
Agreement" or the "Revolving Credit
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Facility Loan Documentation," respectively (with appropriate changes in the
numbering of section references within the respective documents). The Lender and
the Borrower shall sign any and all amendments, modifications and/or waivers
necessary in order to effectuate the preceding sentence.
8.2 Notices. All notices, requests and demands to or upon the
respective parties hereto to be effective shall be in writing (including by
telecopy), and shall be deemed to have been duly given or made when delivered,
or, in the case of telecopy notice, when received, addressed, as follows:
The Borrower: ANC Rental Corporation
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
The Lender: AutoNation, Inc.
▇▇▇ ▇.▇. ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
8.3 No Waiver; Cumulative Remedies. No failure to exercise and no
delay in exercising, on the part of the Lender, any right, remedy, power or
privilege hereunder or under the other Loan Documents shall operate as a waiver
thereof; nor shall any single or partial exercise of any right, remedy, power or
privilege hereunder preclude any other or further exercise thereof or the
exercise of any other right, remedy, power or privilege. The rights, remedies,
powers and privileges herein provided are cumulative and not exclusive of any
rights, remedies, powers and privileges provided by law.
8.4 Survival of Representations and Warranties. All
representations and warranties made in any document, certificate or statement
delivered pursuant hereto or in connection herewith shall survive the execution
and delivery of this Agreement and the making of the Loans and other extensions
of credit hereunder.
8.5 Payment of Expenses. The Borrower agrees (a) to pay or
reimburse the Lender for all its reasonable costs and expenses incurred in
connection with the enforcement or preservation of any rights under this
Agreement, the other Loan Documents and any other documents prepared in
connection herewith or therewith, including, without limitation, the reasonable
fees and disbursements of counsel to the Lender (rates from time to time of New
York counsel to the Borrower being deemed reasonable rates), whether or not suit
be brought, and in all appeals and bankruptcy proceedings, (b) to pay,
indemnify, or reimburse the Lender for, and hold the Lender harmless from, any
and all recording and filing fees and any and all liabilities with respect to,
or resulting from any delay in paying, stamp, excise and other taxes, if any,
which may be payable or
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determined to be payable in connection with the execution and delivery of, or
consummation or administration of any of the transactions contemplated by, or
any amendment, supplement or modification of, or any waiver or consent under or
in respect of, this Agreement, the other Loan Documents and any such other
documents, and (c) to pay, indemnify or reimburse the Lender, its respective
affiliates, and its respective officers, directors, trustees, employees,
advisors, agents and controlling persons (each, an "Indemnitee") for, and hold
each Indemnitee harmless from and against any and all other liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind or nature whatsoever with respect to the
execution, delivery, enforcement, performance and administration of this
Agreement, the other Loan Documents and any such other documents, including,
without limitation, any of the foregoing relating to the use of proceeds of the
Loans and the fees and disbursements and other charges of legal counsel in
connection with claims, actions or proceedings by any Indemnitee against the
Borrower hereunder (all the foregoing in this clause (d), collectively, the
"Indemnified Liabilities"); provided, however, that the Borrower shall have no
obligation hereunder to any Indemnitee with respect to Indemnified Liabilities
to the extent such Indemnified Liabilities have resulted from the gross
negligence or willful misconduct of such Indemnitee. Without limiting the
foregoing, and to the extent permitted by applicable law, the Borrower agrees
not to assert and to cause its Subsidiaries not to assert, and hereby waives and
agrees to cause its Subsidiaries so to waive, all rights for contribution or any
other rights of recovery with respect to all claims, demands, penalties, fines,
liabilities, settlements, damages, costs and expenses of whatever kind or
nature, arising from the use by unauthorized Persons of information or other
materials sent through electronic, telecommunications or other information
transmission systems that are intercepted by such Persons, or in connection with
the Lender Accommodation Obligations, that any of them might have by statute or
otherwise against any Indemnitee. All amounts due under this Section shall be
payable not later than 30 days after written demand therefor. Statements payable
by the Borrower pursuant to this Section shall be submitted to the address of
the Borrower set forth in Section 8.2, or to such other Person or address as may
be hereafter designated by the Borrower in a notice to the Lender. The
agreements in this Section shall survive repayment of the Loans and all other
amounts payable hereunder.
8.6 Successors and Assigns; Participations and Assignments.
(a) This Agreement shall be binding upon and inure to the
benefit of the Borrower and the Lender and their respective successors and
assigns, except that the Borrower may not assign or transfer any of its rights
or obligations under this Agreement without the prior written consent of the
Lender, which shall not be unreasonably withheld.
(b) The Lender may, without the consent of the Borrower,
in accordance with applicable law, at any time sell to one or more banks,
financial institutions or other entities (each, a "Participant") participating
interests in any Loan owing to the Lender, or any other interest of the Lender
hereunder and under the other Loan Documents. In the event of any such sale by
the Lender of a participating interest to a Participant, the Lender's
obligations under this Agreement to the Borrower shall remain unchanged, Lender
shall remain solely responsible for its performance of this Agreement, the
Lender shall remain the holder of any such Loan for all purposes under this
Agreement and the other Loan Documents, and the Borrower shall continue to deal
solely and directly with the Lender in connection with the Lender's rights and
obligations under this Agreement
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and the other Loan Documents. The Borrower agrees that if amounts outstanding
under this Agreement and the Loans are due or unpaid, or shall have been
declared or shall have become due and payable upon the occurrence of an Event of
Default, each Participant shall, to the maximum extent permitted by applicable
law, be deemed to have the right of set-off in respect of its participating
interest in amounts owing under this Agreement to the same extent as if the
amount of its participating interest were owing directly to it as the Lender
under this Agreement; provided, however, that, in purchasing such participating
interest, such Participant shall be deemed to have agreed to share with the
Lender and any other Participant or Assignee the proceeds thereof as provided in
Section 8.7 fully as if such Participant were the Lender hereunder.
(c) The Lender may, in accordance with applicable law, at
any time and from time to time, assign to any Affiliate of the Lender, to any
bank, financial institution or other entity (an "Assignee") all or any part of
its rights and obligations under this Agreement without the consent of the
Borrower; provided, however, that no such assignment to an Assignee shall be in
an aggregate principal amount of less than $5,000,000 (other than in the case of
an assignment of all of the Lender's interests under this Agreement), unless
otherwise agreed by the Borrower. Upon such execution, delivery, acceptance and
recording, from and after the effective date determined pursuant to any
assignment and acceptance, (x) the Assignee thereunder shall be a party hereto
and, to the extent provided in any such assignment and acceptance, have the
rights and obligations of the Lender hereunder, and (y) the Lender shall, to the
extent provided in such assignment and acceptance, be released from its
obligations under this Agreement (and, in the case of an assignment and
acceptance covering all of an Assignor's rights and obligations under this
Agreement, the Lender shall cease to be a party hereto except as to Section 8.5
in respect of the period prior to such effective date). Notwithstanding any
provision of this Section 8.6(c), the consent of the Borrower shall not be
required for any assignment that occurs at any time when any Event of Default
shall have occurred and be continuing.
(d) For avoidance of doubt, the parties to this Agreement
acknowledge that the provisions of this Section 8.6(c) concerning assignments of
Loans relate only to absolute assignments and that such provisions do not
prohibit assignments creating security interests in Loans and Notes, including,
without limitation, any pledge or assignment by the Lender of any Loan or Note.
8.7 Set-off.
(a) Subsequent to any partial assignment hereunder, if
the Lender shall at any time receive any payment of all or part of the
Obligations owing to it, or receive any collateral in respect thereof (whether
voluntarily or involuntarily, by set-off, pursuant to events or proceedings of
the nature referred to in Section 7(d), or otherwise), in a greater proportion
than any such payment to or collateral received by the Assignee, if any, in
respect of such Assignee's Obligations, the Lender shall purchase for cash from
the Assignee a participating interest in such portion of each Assignee's
Obligations, or shall provide the Assignees with the benefits of any such
collateral, as shall be necessary to cause the Lender to share the excess
payment or benefits of such collateral ratably with each of the Assignees;
provided, however, that if all or any portion of such excess
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payment or benefits is thereafter recovered from the Lender, such purchase shall
be rescinded, and the purchase price and benefits returned, to the extent of
such recovery, but without interest.
(b) In addition to any rights and remedies of the Lender
provided by law, the Lender shall have the right, without prior notice to the
Borrower, any such notice being expressly waived by the Borrower to the extent
permitted by applicable law, upon any amount becoming due and payable by the
Borrower hereunder (whether at the stated maturity, by acceleration or
otherwise), to set off and appropriate and apply against such amount any and all
deposits (general or special, time or demand, provisional or final), in any
currency, and any other credits, indebtedness or claims, in any currency, in
each case whether direct or indirect, absolute or contingent, matured or
unmatured, at any time held or owing by the Lender or any branch or agency
thereof to or for the credit or the account of the Borrower. Each Lender agrees
promptly to notify the Borrower and any other Lender after any such set-off and
application made by such Lender; provided, however, that the failure to give
such notice shall not affect the validity of such set-off and application.
8.8 Counterparts. This Agreement may be executed by one or more of
the parties to this Agreement on any number of separate counterparts, and all of
said counterparts taken together shall be deemed to constitute one and the same
instrument. Delivery of an executed signature page of this Agreement by
facsimile transmission shall be effective as delivery of a manually executed
counterpart hereof.
8.9 Severability. Any provision of this Agreement that is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
8.10 Integration. This Agreement and the other Loan Documents
represent the entire agreement of the Borrower and the Lender with respect to
the subject matter hereof and thereof, and there are no promises, undertakings,
representations or warranties by the Lender relative to subject matter hereof
not expressly set forth or referred to herein or in the other Loan Documents.
8.11 GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS
OF THE PARTIES UNDER THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
8.12 Submission To Jurisdiction; Waivers. The Borrower hereby
irrevocably and unconditionally:
(a) submits for itself and its Property in any legal
action or proceeding relating to this Agreement and the other Loan Documents to
which it is a party, or for recognition and enforcement of any judgment in
respect thereof, to the non-exclusive general jurisdiction of the courts of the
State of Florida, the courts of the United States of America for the Southern
District of Florida, and appellate courts from any thereof;
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(b) consents that any such action or proceeding may be
brought in such courts and waives any objection that it may now or hereafter
have to the venue of any such action or proceeding in any such court or that
such action or proceeding was brought in an inconvenient court and agrees not to
plead or claim the same;
(c) agrees that service of process in any such action or
proceeding may be effected by mailing a copy thereof by registered or certified
mail (or any substantially similar form of mail), postage prepaid, to the
Borrower at its address set forth in Section 8.2 or at such other address of
which the Lender shall have been notified pursuant thereto;
(d) agrees that nothing herein shall affect the right to
effect service of process in any other manner permitted by law or shall limit
the right to ▇▇▇ in any other jurisdiction; and
(e) waives, to the maximum extent not prohibited by law,
any right it may have to claim or recover in any legal action or proceeding
referred to in this Section 8.12 any special, exemplary, punitive or
consequential damages.
8.13 Acknowledgments. The Borrower hereby acknowledges that:
(a) it has been advised by counsel in the negotiation,
execution and delivery of this Agreement and the other Loan Documents;
(b) Lender has no fiduciary relationship with or duty to
the Borrower arising out of or in connection with this Agreement or any of the
other Loan Documents, and the relationship between the Lender, on one hand, and
the Borrower, on the other hand, in connection herewith or therewith is solely
that of debtor and creditor; and
(c) no joint venture is created hereby or by the other
Loan Documents or otherwise exists by virtue of the transactions contemplated
hereby between the Borrower and the Lender.
8.14 Confidentiality. The Lender agrees to keep confidential all
non-public information provided to it by any Loan Party pursuant to this
Agreement that is designated by such Loan Party as confidential; provided,
however, that nothing herein shall prevent the Lender from disclosing any such
information (a) to any Participant or Assignee (each, a "Transferee") or
prospective Transferee that agrees to comply with the provisions of this Section
8.14, (b) to any of its employees, directors, agents, attorneys, accountants and
other professional advisors, (c) to any agent, manager or advisor and their
advisors in connection with any proposed debt or equity financing of the Lender
or to any existing creditor of the Lender (so long as such parties agree to be
bound by the provisions of this Section 8.14), (d) upon the request or demand of
any Governmental Authority having jurisdiction over it, (e) in response to any
order of any court or other Governmental Authority or as may otherwise be
required pursuant to any Requirement of Law, (f) in connection with any
litigation or similar proceeding, (g) that has been publicly disclosed other
than in breach of this Section 8.14, (h) to any nationally recognized rating
agency that requires access to information about the Lender
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investment portfolio in connection with ratings issued with respect to the
Lender or (i) in connection with the exercise of any remedy hereunder or under
any other Loan Document.
8.15 Usury. The Lender does not intend to violate any applicable
usury laws. Accordingly, all agreements between the Borrower and the Lender are
expressly limited so that in no contingency or event whatsoever, whether by
reason of acceleration of maturity of the unpaid Loans hereof, or otherwise,
shall the amount paid or agreed to be paid to the Lender for the use,
forbearance or detention of the money to be advanced hereunder (including all
interest hereunder and under the Notes, and the aggregate of all other amounts
taken, reserved or charged pursuant to the Loan Documents, which, under
applicable laws is or may be deemed to be interest) exceed the maximum rate
allowed by applicable law. If, from any circumstances whatsoever, fulfillment of
any obligation of the Loan Documents, at the time performance of such obligation
shall be due, shall cause the effective rate of interest upon the sums evidenced
hereby to exceed the maximum rate of interest allowed by applicable law, then,
the obligation to be fulfilled shall be reduced automatically to the extent
necessary to prevent that effective rate of interest from exceeding the maximum
rate allowable under applicable law, and to the extent that the Lender shall
receive any sum which would constitute excessive interest, such sum shall be
applied to the reduction of the unpaid principal balance due hereunder and not
to the payment of interest or, if such excessive interest exceeds the unpaid
balance of principal, the excess shall be refunded to the Borrower.
8.16 WAIVERS OF JURY TRIAL. THE BORROWER AND THE LENDER HEREBY
IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY LEGAL ACTION OR
PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT AND FOR ANY
COUNTERCLAIM THEREIN.
(signatures appear on next page)
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered by their proper and duly authorized officers as of
the day and year first above written.
ANC RENTAL CORPORATION, as Borrower
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Treasurer
AUTONATION, INC., as Lender
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Treasurer
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