exv10w1



 






Exhibit 10.1




AMENDMENT NO. 1 TO REVOLVING CREDIT

AND TERM LOAN AGREEMENT




      This AMENDMENT NO. 1 TO REVOLVING CREDIT AND TERM LOAN AGREEMENT (this “Amendment”) is made as
of May 10, 2005 by and among CAPITAL AUTOMOTIVE L.P. (“Borrower”), a Delaware limited partnership,
CAPITAL AUTOMOTIVE REIT, a Maryland real estate investment trust (the “Guarantor”), the lenders
party hereto and JPMORGAN CHASE BANK, N.A. (formerly known as JPMorgan Chase Bank), as
Administrative Agent for the Lenders (the “Administrative Agent”), as Swingline Lender and as
Issuing Bank.



      WHEREAS, the Borrower, the Guarantor, the Lenders and the Administrative Agent are parties to
a Revolving Credit and Term Loan Agreement dated as of August 20, 2004 (the “Credit Agreement”),
pursuant to which the Lenders have agreed to make loans and extend credit to the Borrowers on the
terms and conditions set forth therein;



      WHEREAS, the Borrower has requested that the Lenders modify the interest rate as it applies to
the Term Loan (as defined in the Credit Agreement);



      WHEREAS, in connection with the interest rate modification, the Borrower has agreed to pay a
prepayment penalty with respect to prepayments of the Term Loan; and



      WHEREAS, the Lenders with Term Loan Exposures (as defined in the Credit Agreement) are willing
to so amend the interest rate provisions and the prepayment section contained in the Credit
Agreement on the terms and conditions set forth herein;



      NOW, THEREFORE, in consideration of the foregoing premises, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, and fully intending to
be legally bound by this Amendment, the parties hereto agree as follows:



      1. Definitions. Capitalized terms used herein without definition shall have the
meanings assigned to such terms in the Credit Agreement.



      2. Amendments to Credit Agreement. As of the Effective Date (as defined in §4 hereof)
the Credit Agreement is hereby amended as follows:




      2.1. Definition of Applicable Rate. The definition of “Applicable Rate” set
forth in Section 1.1 of the Credit Agreement is amended and restated in its entirety as
follows:



      “Applicable Rate” means, for any day, with respect to any Eurodollar Loan, or with
respect to the facility fees payable hereunder, as the case may be, the applicable rate per annum



1








 






set forth below under the captions “Eurodollar Spread”, or “Facility Fee Rate”, as the case
may be, based upon:




	(a)  	if, with respect to any Revolving Borrowing and any Term Loan Borrowing, neither the
Borrower nor the Guarantor has at least two Applicable Credit Ratings in effect (including at
least one from Moody’s or S&P), the Eurodollar Spread shall be determined based on the range
into which the Leverage Ratio then falls as follows:





	 	 	 	 	 	 	 
	 	 	Leverage	 	Eurodollar
	Categories	 	Ratio	 	Spread
	1

	 	< 45%
	 	 	1.100	%
	2

	 	3 45% but < 50%
	 	 	1.250	%
	3

	 	3 50% but < 55%
	 	 	1.450	%
	4

	 	3 55% but < 60%
	 	 	1.550	%
	5

	 	3 60%
	 	 	1.750	%







	(b)  	if, with respect to any Revolving Borrowing, either (i) the Borrower has at least two
Applicable Credit Ratings in effect (including at least one from Moody’s or S&P) or (ii) the
Guarantor has at least two Applicable Credit Ratings in effect (including at least one from
Moody’s or S&P), the Eurodollar Spread and the Facility Fee Rate shall be determined based
upon the lowest Applicable Credit Rating of (A) the Borrower, if the Borrower has at least two
Applicable Credit Ratings in effect and the Guarantor does not, (B) the Guarantor, if the
Guarantor has at least two Applicable Credit Ratings in effect and the Borrower does not, or
(C) if both the Borrower and the Guarantor have at least two Applicable Credit Ratings in
effect, the Credit Party with the highest Applicable Credit Ratings (including at least one
from Moody’s or S&P), in each case as of the most recent Calculation Date in the table below;
provided that in the event that if either or both Credit Parties receive more than two
Applicable Credit Ratings and such Applicable Credit Ratings are not equivalent, the
Applicable Margin shall be determined by the lower of the two highest Applicable Credit
Ratings of the applicable Credit Party under clauses (A), (B) or (C) above, provided
that at least one of such two highest Applicable Credit Ratings shall be from S&P or Moody’s;
provided further, that if neither of the two highest Applicable Credit Ratings
were issued by S&P or Moody’s, the Applicable Margin shall be determined by the highest
Applicable Credit Rating of the applicable Credit Party from S&P or Moody’s:





2








 





	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	S&P	 	Moody’s	 	 	 	 
	 	 	Applicable	 	Applicable	 	Eurodollar	 	Facility Fee
	Categories:	 	Credit Rating	 	Credit Rating	 	Spread	 	Rate
	1

	 	BBB+ or better
	 	Baa1 or better
	 	 	0.75	%	 	 	0.15	%
	2

	 	BBB
	 	Baa2
	 	 	0.85	%	 	 	0.15	%
	3

	 	BBB-
	 	Baa3
	 	 	0.95	%	 	 	0.20	%
	4

	 	BB+
	 	Ba1
	 	 	1.05	%	 	 	0.20	%
	5

	 	Below BB+
	 	Below Ba1
	 	 	1.25	%	 	 	0.25	%







      Additionally, if the Applicable Credit Ratings are changed (other than as a result of a
change in the rating system of the Rating Agencies), such change shall be effective as of
the date on which it is first announced by the applicable Rating Agency, irrespective of
when notice of such change shall have been furnished by the Borrower to the Administrative
Agent and the Lenders pursuant to SECTION 5.1 or otherwise. Each change in the Applicable
Rate shall apply 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. If the
rating system of any of the Rating Agencies shall change, or if either such Rating Agency
shall cease to be in the business of rating corporate debt obligations, the Borrower and the
Lenders shall negotiate in good faith to amend this definition to reflect such changed
rating system or the unavailability of ratings from such rating agency and, pending the
effectiveness of any such amendment, the Applicable Rate shall be determined by reference to
the rating most recently in effect prior to such change or cessation.




	(c)  	if, with respect to any Term Loan Borrowing, either (i) the Borrower has at least two
Applicable Credit Ratings in effect (including at least one from Moody’s or S&P) or (ii) the
Guarantor has at least two Applicable Credit Ratings in effect (including at least one from
Moody’s or S&P), the Eurodollar Spread shall be determined based upon the lowest Applicable
Credit Rating of (A) the Borrower, if the Borrower has at least two Applicable Credit Ratings
in effect and the Guarantor does not, (B) the Guarantor, if the Guarantor has at least two
Applicable Credit Ratings in effect and the Borrower does not, or (C) if both the Borrower and
the Guarantor have at least two Applicable Credit Ratings in effect, the Credit
Party with the highest Applicable Credit Ratings (including at least one from Moody’s or





3








 






	   	S&P), in each case as of the most recent Calculation Date in the table below; provided that in the
event that if either or both Credit Parties receive more than two Applicable Credit Ratings and
such Applicable Credit Ratings are not equivalent, the Applicable Margin shall be determined by
the lower of the two highest Applicable Credit Ratings of the applicable Credit Party under
clauses (A), (B) or (C) above, provided that at least one of such two highest Applicable
Credit Ratings shall be from S&P or Moody’s; provided further, that if neither
of the two highest Applicable Credit Ratings were issued by S&P or Moody’s, the Applicable
Margin shall be determined by the highest Applicable Credit Rating of the applicable Credit
Party from S&P or Moody’s:





	 	 	 	 	 	 	 	 	 
	 	 	S&P	 	Moody’s	 	 
	 	 	Applicable	 	Applicable	 	Eurodollar
	Categories:	 	Credit Rating	 	Credit Rating	 	Spread
	1

	 	BBB+ or better
	 	Baa1 or better
	 	 	0.70	%
	2

	 	BBB
	 	Baa2
	 	 	0.80	%
	3

	 	BBB-
	 	Baa3
	 	 	0.875	%
	4

	 	BB+
	 	Ba1
	 	 	0.95	%
	5

	 	Below BB+
	 	Below Ba1
	 	 	1.15	%







      Additionally, if the Applicable Credit Ratings are changed (other than as a result of a
change in the rating system of the Rating Agencies), such change shall be effective as of
the date on which it is first announced by the applicable Rating Agency, irrespective of
when notice of such change shall have been furnished by the Borrower to the Administrative
Agent and the Lenders pursuant to SECTION 5.1 or otherwise. Each change in the Applicable
Rate shall apply 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. If the
rating system of any of the Rating Agencies shall change, or if either such Rating Agency
shall cease to be in the business of rating corporate debt obligations, the Borrower and the
Lenders shall negotiate in good faith to amend this definition to reflect such changed
rating system or the unavailability of ratings from such rating agency and, pending the
effectiveness of any such amendment, the Applicable Rate shall be determined by reference to
the rating most recently in effect prior to such change or cessation.



4








 





      The Applicable Rate shall be determined and adjusted on the date (each a “Calculation Date”)
(i) if the Applicable Rate is determined pursuant to clause (a) above, five Business Days after the
date on which the Borrower provides the officer’s certificate in accordance with the provisions of
SECTION 5.1(c); provided that if the Borrower fails to provide the officer’s certificate
required by SECTION 5.1(c) on or before the date required by SECTION 5.1(c), the Applicable Rate
from such date shall be based on Category 5 in clause (a) above until such time that an appropriate
officer’s certificate is provided whereupon the Applicable Rate shall be determined by the then
current Leverage Ratio, or (ii) if the Applicable Rate is determined pursuant to clauses (b) or (c)
above, the date the Borrower or Guarantor obtains an Applicable Credit Rating from at least two
Rating Agencies or the date there is a change in any Applicable Credit Rating that would cause a
change in the Applicable Rate pursuant to clauses (b) or (c) above, in each case promptly after the
Administrative Agent receives notice regarding such Applicable Credit Rating. Each Applicable Rate
shall be effective from one Calculation Date until the next Calculation Date. Any adjustment in the
Applicable Rate shall be applicable both to new Revolving Loans made and to all existing Loans.



      The Borrower shall promptly deliver to the Administrative Agent (x) any notice it receives
from a Rating Agency regarding a change in the Applicable Credit Ratings or (y) any information
that might reasonably be expected by the Borrower to change the Leverage Ratio, and in each case
that would change the existing category for the Applicable Rate as set forth above.




      2.3. Prepayment of Loans. Section 2.11(a) of the Credit Agreement is amended
and restated in its entirety as follows:




      “(a) The Borrower shall have the rights at any time and from time to time to
prepay any Borrowing in whole or in part, subject to prior notice in accordance with
paragraph (b) of this SECTION 2.11 and any prepayment premium in accordance with
paragraph (d) of this SECTION 2.11.”




      2.4. Prepayment of Loans. Section 2.11 of the Credit Agreement is amended by
adding the following paragraph (d) after paragraph (c) thereof:




      “(d) Any prepayment of all or any portion of the Term Loan on or prior to
October 1, 2005 shall be accompanied by a prepayment premium equal to 0.75% of the
principal amount of any repayments made on such date. Any prepayment of all or any
portion of the Term Loan made after such date shall not be subject to a prepayment
premium.”



      3. Provisions Of General Application.




      3.1. Representations and Warranties. Each of the Borrower and Guarantor hereby
represents and warrants as of the date hereof that (a) each of the representations and
warranties contained in the Credit Agreement, the other Credit



5








 






Documents or in any document or instrument delivered pursuant to or in connection with
the Credit Agreement or this Amendment are true as of the date as of which they were made
and are true at and as of the date of this Amendment (except to the extent that such
representations and warranties expressly speak as of a different date, in which case such
respresentations and warranties shall have been true as of the date made), (b) no Event of
Default or Default exists on the date hereof, (c) the organizational documents of the
Borrower attached to the Secretary’s Certificate dated as of August 20, 2004 remain in full
force and effect and such organizational documents have not been amended, annulled,
rescinded or revoked since August 20, 2004, (d) the organizational documents of the
Guarantor attached to the Trustee’s Certificate dated as of August 20, 2004 remain in full
force and effect and such organizational documents have not been amended, annulled,
rescinded or revoked since August 20, 2004, and (e) this Amendment has been duly authorized,
executed and delivered by the Borrower and the Guarantor and is in full force and effect as
of the Effective Date (as defined below), and the agreements and obligations of the Borrower
and the Guarantor contained herein constitute the legal, valid and binding obligations of
the Borrower and the Guarantor, enforceable against them in accordance with their respective
terms, except to the extent that the enforcement thereof or the availability of equitable
remedies may be limited by applicable bankruptcy, reorganization, insolvency, moratorium,
fraudulent transfer, fraudulent conveyance or similar laws now or hereafter in effect
relating to or affecting creditors’ rights generally or by general principles of equity, or
by the discretion of any court in awarding equitable remedies, regardless of whether such
enforcement is considered in a preceding in equity or at law.




      3.2. No Other Changes. Except as otherwise expressly provided or contemplated
by this Amendment, all of the terms, conditions and provisions of the Credit Agreement
remain unaltered and in full force and effect. The Credit Agreement and this Amendment
shall be read and construed as one agreement. The making of the amendments in this
Amendment does not imply any obligation or agreement by the Administrative Agent or any
Lender to make any other amendment, waiver, modification or consent as to any matter on any
subsequent occasion.




      3.3. Governing Law. This Amendment shall be deemed to be a contract under the
laws of the State of New York. This Amendment and the rights and obligations of each of the
parties hereto are contracts under the laws of the State of New York and shall for all
purposes be construed in accordance with and governed by the laws of such State (excluding
the laws applicable to conflicts or choice of law).




      3.4. Assignment. This Amendment shall be binding upon and inure to the benefit
of each of the parties hereto and their respective permitted successors and assigns.



6








 






      3.5. Counterparts. This Amendment may be executed in any number of
counterparts, but all such counterparts shall together constitute but one and the same
agreement. In making proof of this Amendment, it shall not be necessary to produce or
account for more than one counterpart thereof signed by each of the parties hereto.



      4. Effectiveness of this Amendment. This Amendment shall become effective on the date
on which the following conditions precedent are satisfied (such date being hereinafter referred to
as the “Effective Date”):




      (a) execution and delivery to the Administrative Agent by each Lender with any Term
Loan Exposure, the Borrower, the Guarantor, and the Administrative Agent of this Amendment;




      (b) execution and delivery to the Administrative Agent by the Guarantor of a
Reaffirmation of Guaranty in form and substance satisfactory to the Administrative Agent;




      (c) delivery to the Administrative Agent by the Borrowers of resolutions of the
governing board of the Borrowers authorizing this Amendment;




      (d) delivery to the Administrative Agent of an opinion of counsel to the Borrower and
the Guarantor with respect to this Amendment in form and substance satisfactory to the
Administrative Agent; and




      (e) payment by the Borrowers of the fees and expenses described in the Fee Letter,
dated as of May 4, 2005, by and among JPMorgan Chase Bank, N.A., J.P. Morgan Securities
Inc., and the Borrower, with respect to this Amendment.



[Remainder of page left blank intentionally]




7








 





      IN WITNESS WHEREOF, the undersigned have duly executed and delivered this Amendment as of the
date first set forth above.


	 	 	 	 	 
	BORROWER:  	CAPITAL AUTOMOTIVE L.P., a 

Delaware limited partnership

 	 
	 	By:  	Capital Automotive REIT, a Maryland real 	 
	 	 	estate investment trust, its general partner 	 
	 



	 	 	 	 	 
	 	 	 
	 	By:  	/s/ David S. Kay
 	 
	 	 	David S. Kay 	 
	 	 	Senior Vice President,
Chief Financial Officer and Treasurer 	 
	 



	 	 	 	 	 
	GUARANTOR:  	CAPITAL AUTOMOTIVE REIT, a 

Maryland real estate investment trust

 	 
	 	By:  	/s/ David S. Kay
 	 
	 	 	David S. Kay 	 
	 	 	Senior Vice President,
Chief Financial Officer and Treasurer 	 
	 





 








 





	 	 	 	 	 
	LENDERS:  	JPMORGAN CHASE BANK, N.A.

(f/k/a JPMorgan Chase Bank), as Administrative Agent,
Swingline Lender, Issuing Bank, and individually as a
Lender

 	 
	 	By:  	/s/ Marc E. Costantino
 	 
	 	 	Marc E. Costantino 	 
	 	 	Vice President 	 
	 




 








 





	 	 	 	 	 
	 	BANK OF AMERICA, N.A.

 	 
	 	By:  	/s/ M. Patricia Kay
 	 
	 	Name:  	M. Patricia Kay 	 
	 	Title:  	SVP 	 
	 




Signature Page to Amendment No. 1 to Credit Agreement








 





	 	 	 	 	 
	 	WACHOVIA BANK, NATIONAL ASSOCIATION

 	 
	 	By:  	/s/ Cynthia A. Bean
 	 
	 	Name:  	Cynthia A. Bean 	 
	 	Title:  	Vice President 	 
	 





Signature Page to Amendment No. 1 to Credit Agreement









 





	 	 	 	 	 
	 	WELLS FARGO BANK, NATIONAL ASSOCIATION

 	 
	 	By:  	/s/ Laura Waites
 	 
	 	Name:  	Laura Waites 	 
	 	Title:  	Vice President 	 
	 





Signature Page to Amendment No. 1 to Credit Agreement









 





	 	 	 	 	 
	 	ROYAL BANK OF CANADA

 	 
	 	By:  	/s/ Suzanne Kaicher
 	 
	 	Name:  	Suzanne Kaicher 	 
	 	Title:  	Attorney-In-Fact 	 
	 





Signature Page to Amendment No. 1 to Credit Agreement









 





	 	 	 	 	 
	 	CREDIT SUISSE FIRST BOSTON, acting through its Cayman
Islands Branch

 	 
	 	By:  	/s/ William O’Daly
 	 
	 	Name:  	William O’Daly 	 
	 	Title:  	Director 	 
	 



	 	 	 	 	 
	 	 	 
	 	By:  	                       /s/ Cassandra Droogan
 	 
	 	Name:  	Cassandra Droogan 	 
	 	Title:  	Associate 	 
	 





Signature Page to Amendment No. 1 to Credit Agreement









 





	 	 	 	 	 
	 	CITICORP NORTH AMERICA, INC.

 	 
	 	By:  	/s/ Blake R. Gronich
 	 
	 	Name:  	Blake R. Gronich 	 
	 	Title:  	Vice President 	 
	 





Signature Page to Amendment No. 1 to Credit Agreement









 





	 	 	 	 	 
	 	MANUFACTURERS AND TRADERS TRUST COMPANY

 	 
	 	By:  	/s/ Matthew Lind
 	 
	 	Name:  	Matthew Lind 	 
	 	Title:  	Vice President 	 
	 





Signature Page to Amendment No. 1 to Credit Agreement









 





	 	 	 	 	 
	 	TOYOTA MOTOR CREDIT CORPORATION

 	 
	 	By:  	/s/ P. Reid Boozer
 	 
	 	Name:  	P. Reid Boozer 	 
	 	Title:  	National Development Manager 	 
	 





Signature Page to Amendment No. 1 to Credit Agreement









 





	 	 	 	 	 
	 	BRANCH BANKING AND TRUST COMPANY

 	 
	 	By:  	/s/ Ronald P. Gudbrandsen 	 
	 	Name:  	Ronald P. Gudbrandsen 	 
	 	Title:  	Senior Vice President 	 
	 





Signature Page to Amendment No. 1 to Credit Agreement









 





	 	 	 	 	 
	 	CHEVY CHASE BANK, F.S.B.

 	 
	 	By:  	/s/ Frederick H. Denecke
 	 
	 	Name:  	Frederick H. Denecke 	 
	 	Title:  	Vice President 	 
	 





Signature Page to Amendment No. 1 to Credit Agreement









 





	 	 	 	 	 
	 	COMERICA BANK

 	 
	 	By:  	/s/ Charles Weddell
 	 
	 	Name:  	Charles Weddell 	 
	 	Title:  	Vice President 	 
	 





Signature Page to Amendment No. 1 to Credit Agreement









 





	 	 	 	 	 
	 	FIRST HORIZON BANK, a division of First Tennessee Bank N.A.

 	 
	 	By:  	/s/ J. Jordan O’Neill, III
 	 
	 	Name:  	J. Jordan O’Neill, III 	 
	 	Title:  	Senior Vice President 	 
	 





Signature Page to Amendment No. 1 to Credit Agreement









 





	 	 	 	 	 
	 	UFJ BANK LIMITED

 	 
	 	By:  	/s/ Jesse McDonald
 	 
	 	Name:  	Jesse McDonald 	 
	 	Title:  	Vice President 	 
	 





Signature Page to Amendment No. 1 to Credit Agreement









 





	 	 	 	 	 
	 	ALLIED IRISH BANKS, p.l.c.

 	 
	 	By:  	/s/ Anthony O’Reilly 	 
	 	Name:  	Anthony O’Reilly 	 
	 	Title:  	Vice President

Investment Advisor to

AIB Debt Management, Limited 	 
	 



	 	 	 	 	 
	 	 	 
	 	By:  	/s/ Denise Magyer 	 
	 	Name:  	Denise Magyer 	 
	 	Title:  	Vice President

Investment Advisor to

AIB Debt Management, Limited 	 
	 




 








 





	 	 	 	 	 
	 	AIB DEBT MANAGEMENT LTD.

 	 
	 	By:  	/s Anthony O’Reilly 	 
	 	Name:  	Anthony O’Reilly 	 
	 	Title:  	Vice President

Investment Advisor to

AIB Debt Management, Limited 	 
	 



	 	 	 	 	 
	 	 	 
	 	By:  	                    /s/ Denise Magyer
 	 
	 	Name:  	Denise Magyer 	 
	 	Title:  	Vice President

Investment Advisor to

AIB Debt Management, Limited