**Exhibit 10.3**

 

***EXECUTION VERSION***

 

 

 

****

 

**CREDIT AGREEMENT**

 

 

dated as of October 31, 2010

 

among

 

**TITAN MACHINERY INC.**a Delaware corporation**,**

as Borrower,

 

**THE SUBSIDIARIES OF BORROWER PARTY HERETO,**

as Subsidiary Guarantors,

 

**THE FINANCIAL INSTITUTIONS PARTY HERETO,**

as Lenders,

 

**BANK OF AMERICA, N.A.**

as Co-Documentation Agent

 

**COBANK,  ACB**

as Co-Documentation Agent

 

and

 

**WELLS FARGO BANK, NATIONAL ASSOCIATION**,

as Administrative Agent,

Swing Line Lender and L/C Issuer

 

 

**WELLS FARGO SECURITIES, LLC**

Sole Lead Arranger and Sole Book Runner

 

 

 

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**TABLE OF CONTENTS**

 
| **ARTICLE I**   | **CERTAIN DEFINED TERMS; CERTAIN RULES OF CONSTRUCTION** | **1**                                                                               |
|----------------------|----------------------------------------------------------------------------------------|-------------------------------------------------------------------------------------|
|                 |                                                                                   |                                                                                |   |
| SECTION 1.01    |                                                                                   | CERTAIN DEFINED TERMS                                                               | 1 |
| SECTION 1.02    |                                                                                   | CERTAIN RULES OF CONSTRUCTION                                                       | 33 |
|                 |                                                                                   |                                                                                |   |
| **ARTICLE II**  | **CREDIT EXTENSIONS**                                                                  | **35**                                                                              |
|                 |                                                                                   |                                                                                |   |
| SECTION 2.01    |                                                                                   | WORKING CAPITAL LOANS; FLOORPLAN LOANS                                              | 35 |
| SECTION 2.02    |                                                                                   | PROCEDURES FOR BORROWING                                                            | 36 |
| SECTION 2.03    |                                                                                   | LETTERS OF CREDIT                                                                   | 38 |
| SECTION 2.04    |                                                                                   | SWING LINE LOANS                                                                    | 45 |
| SECTION 2.05    |                                                                                   | PAYMENTS AND PREPAYMENTS                                                            | 49 |
| SECTION 2.06    |                                                                                   | TERMINATION OR REDUCTION OF AGGREGATE COMMITMENTS                                   | 51 |
| SECTION 2.07    |                                                                                   | FINAL REPAYMENT OF LOANS                                                            | 52 |
| SECTION 2.08    |                                                                                   | INTEREST; APPLICABLE RATES                                                          | 52 |
| SECTION 2.09    |                                                                                   | FEES                                                                                | 54 |
| SECTION 2.10    |                                                                                   | COMPUTATIONS OF INTEREST AND FEES                                                   | 55 |
| SECTION 2.11    |                                                                                   | EVIDENCE OF DEBT                                                                    | 55 |
| SECTION 2.12    |                                                                                   | PAYMENTS GENERALLY; RIGHT OF ADMINISTRATIVE AGENT TO MAKE  DEDUCTIONS AUTOMATICALLY | 55 |
| SECTION 2.13    |                                                                                   | SHARING OF PAYMENTS                                                                 | 57 |
| SECTION 2.14    |                                                                                   | INCREASE IN AGGREGATE COMMITMENTS                                                   | 58 |
| SECTION 2.15    |                                                                                   | SECURITY FOR THE OBLIGATIONS                                                        | 60 |
| SECTION 2.16    |                                                                                   | EXTENSION OF MATURITY DATE                                                          | 60 |
|                 |                                                                                   |                                                                                |   |
| **ARTICLE III** | **TAXES, YIELD PROTECTION AND ILLEGALITY**                                             | **61**                                                                              |
|                 |                                                                                   |                                                                                |   |
| SECTION 3.01    |                                                                                   | TAXES                                                                               | 61 |
| SECTION 3.02    |                                                                                   | ILLEGALITY                                                                          | 63 |
| SECTION 3.03    |                                                                                   | INABILITY TO DETERMINE RATES                                                        | 63 |
| SECTION 3.04    |                                                                                   | INCREASED COSTS                                                                     | 64 |
| SECTION 3.05    |                                                                                   | COMPENSATION FOR LOSSES                                                             | 65 |
| SECTION 3.06    |                                                                                   | MITIGATION OBLIGATIONS; ADDITIONAL L/C ISSUER                                  | 66 |
| SECTION 3.07    |                                                                                   | REMOVAL OR REPLACEMENT OF LENDERS                                                   | 66 |
| SECTION 3.08    |                                                                                   | SURVIVAL                                                                            | 68 |
|                 |                                                                                   |                                                                                |   |
| **ARTICLE IV**  | **CONDITIONS PRECEDENT**                                                               | **68**                                                                              |
|                 |                                                                                   |                                                                                |   |
| SECTION 4.01    |                                                                                   | CONDITIONS TO EFFECTIVENESS AND INITIAL CREDIT EXTENSION                            | 68 |
| SECTION 4.02    |                                                                                   | CONDITIONS TO ALL CREDIT EXTENSIONS                                                 | 71 |
|                 |                                                                                   |                                                                                |   |
| **ARTICLE V**   | **REPRESENTATIONS AND WARRANTIES**                                                     | **72**                                                                              |
|                 |                                                                                   |                                                                                |   |
| SECTION 5.01    |                                                                                   | CORPORATE EXISTENCE AND POWER                                                       | 72 |
| SECTION 5.02    |                                                                                   | CORPORATE AUTHORIZATION; NO CONTRAVENTION                                           | 72 |
| SECTION 5.03    |                                                                                   | GOVERNMENTAL AUTHORIZATION; COMPLIANCE WITH LAWS                                    | 72 |
| SECTION 5.04    |                                                                                   | BINDING EFFECT                                                                      | 73 |

 

1

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| SECTION 5.05    |                      | LITIGATION                                                       | 73     |
|----------------------|---------------------------|------------------------------------------------------------------|--------|
| SECTION 5.06    |                      | NO DEFAULTS                                                      | 73     |
| SECTION 5.07    |                      | EMPLOYEE BENEFIT PLANS                                           | 74     |
| SECTION 5.08    |                      | USE OF PROCEEDS                                                  | 74     |
| SECTION 5.09    |                      | TITLE TO PROPERTIES                                              | 74     |
| SECTION 5.10    |                      | TAXES                                                            | 74     |
| SECTION 5.11    |                      | FINANCIAL CONDITION                                              | 75     |
| SECTION 5.12    |                      | ENVIRONMENTAL MATTERS                                            | 75     |
| SECTION 5.13    |                      | MARGIN REGULATIONS; REGULATED ENTITIES                           | 75     |
| SECTION 5.14    |                      | SWAP OBLIGATIONS                                                 | 76     |
| SECTION 5.15    |                      | INTELLECTUAL PROPERTY                                            | 76     |
| SECTION 5.16    |                      | EQUITY INTERESTS HELD BY BORROWER; EQUITY INTERESTS IN  BORROWER | 76     |
| SECTION 5.17    |                      | INSURANCE                                                        | 76     |
| SECTION 5.18    |                      | COLLATERAL AND COLLATERAL DOCUMENTS                              | 77     |
| SECTION 5.19    |                      | LABOR RELATIONS                                                  | 77     |
| SECTION 5.20    |                      | SOLVENCY                                                         | 78     |
| SECTION 5.21    |                      | FULL DISCLOSURE                                                  | 78     |
|                 |                      |                                                             |   |
| **ARTICLE VI**  | **AFFIRMATIVE COVENANTS** | **78**                                                           |
|                 |                      |                                                             |   |
| SECTION 6.01    |                      | FINANCIAL STATEMENTS                                             | 78     |
| SECTION 6.02    |                      | CERTIFICATES; OTHER INFORMATION                                  | 79     |
| SECTION 6.03    |                      | NOTICES                                                          | 80     |
| SECTION 6.04    |                      | PAYMENT OF CERTAIN OBLIGATIONS                                   | 81     |
| SECTION 6.05    |                      | PRESERVATION OF  EXISTENCE, ETC.                            | 81     |
| SECTION 6.06    |                      | MAINTENANCE OF PROPERTIES                                        | 82     |
| SECTION 6.07    |                      | MAINTENANCE OF INSURANCE                                         | 82     |
| SECTION 6.08    |                      | COMPLIANCE WITH LAWS                                             | 82     |
| SECTION 6.09    |                      | BOOKS AND RECORDS                                                | 82     |
| SECTION 6.10    |                      | INSPECTION RIGHTS                                                | 83     |
| SECTION 6.11    |                      | USE OF PROCEEDS                                                  | 83     |
| SECTION 6.12    |                      | FINANCIAL COVENANTS                                              | 83     |
| SECTION 6.13    |                      | COLLATERAL VALUATIONS; COLLATERAL AUDITS                         | 83     |
| SECTION 6.14    |                      | FURTHER ASSURANCES                                               | 84     |
| SECTION 6.15    |                      | LANDLORDS’ AGREEMENTS, MORTGAGEE AGREEMENTS, BAILEE LETTERS | 84     |
| SECTION 6.16    |                      | CONTROL AGREEMENTS                                               | 85     |
|                 |                      |                                                             |   |
| **ARTICLE VII** | **NEGATIVE COVENANTS**    | **85**                                                           |
|                 |                      |                                                             |   |
| SECTION 7.01    |                      | LIENS                                                            | 85     |
| SECTION 7.02    |                      | INVESTMENTS                                                      | 87     |
| SECTION 7.03    |                      | DEBT                                                             | 88     |
| SECTION 7.04    |                      | FUNDAMENTAL CHANGES                                              | 90     |
| SECTION 7.05    |                      | DISPOSITIONS                                                     | 91     |
| SECTION 7.06    |                      | RESTRICTED PAYMENTS                                              | 91     |
| SECTION 7.07    |                      | CAPITAL EXPENDITURES                                             | 92     |
| SECTION 7.08    |                      | TRANSACTIONS WITH AFFILIATES                                     | 92     |
| SECTION 7.09    |                      | BURDENSOME AGREEMENTS                                            | 92     |

 

2

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| SECTION 7.10     |                               | USE OF PROCEEDS                                        | 93     |
|-----------------------|------------------------------------|--------------------------------------------------------|--------|
| SECTION 7.11     |                               | CERTAIN GOVERNMENTAL REGULATIONS                       | 93     |
| SECTION 7.12     |                               | AMENDMENT OF MATERIAL DOCUMENTS                        | 93     |
| SECTION 7.13     |                               | DISQUALIFIED EQUITY INTERESTS                          | 93     |
| SECTION 7.14     |                               | TRANSPORTATION SOLUTIONS                               | 93     |
|                  |                               |                                                   |   |
| **ARTICLE VIII** | **EVENTS OF DEFAULT AND REMEDIES** | **94**                                                 |
|                  |                               |                                                   |   |
| SECTION 8.01     |                               | EVENTS OF DEFAULT                                      | 94     |
| SECTION 8.02     |                               | REMEDIES UPON EVENT OF DEFAULT                         | 96     |
| SECTION 8.03     |                               | APPLICATION OF FUNDS                                   | 96     |
|                  |                               |                                                   |   |
| **ARTICLE IX**   | **ADMINISTRATIVE AGENT**           | **97**                                                 |
|                  |                               |                                                   |   |
| SECTION 9.01     |                               | APPOINTMENT AND AUTHORIZATION OF ADMINISTRATIVE AGENT  | 97     |
| SECTION 9.02     |                               | RIGHTS AS A LENDER                                     | 97     |
| SECTION 9.03     |                               | EXCULPATORY PROVISIONS                                 | 98     |
| SECTION 9.04     |                               | RELIANCE BY ADMINISTRATIVE AGENT                       | 99     |
| SECTION 9.05     |                               | DELEGATION OF DUTIES                                   | 99     |
| SECTION 9.06     |                               | RESIGNATION OF ADMINISTRATIVE AGENT                    | 99     |
| SECTION 9.07     |                               | NON-RELIANCE ON ADMINISTRATIVE AGENT AND OTHER LENDERS | 100    |
| SECTION 9.08     |                               | NO OTHER DUTIES, ETC.                             | 100    |
| SECTION 9.09     |                               | ADMINISTRATIVE AGENT MAY FILE PROOFS OF CLAIM     | 101    |
| SECTION 9.10     |                               | GUARANTY MATTERS                                       | 101    |
| SECTION 9.11     |                               | COLLATERAL MATTERS                                     | 101    |
|                  |                               |                                                   |   |
| **ARTICLE X**    | **GENERAL PROVISIONS**             | **103**                                                |
|                  |                               |                                                   |   |
| SECTION 10.01    |                               | AMENDMENTS, ETC.                                  | 103    |
| SECTION 10.02    |                               | NOTICES; EFFECTIVENESS; ELECTRONIC COMMUNICATIONS      | 106    |
| SECTION 10.03    |                               | NO WAIVER; CUMULATIVE REMEDIES                         | 108    |
| SECTION 10.04    |                               | EXPENSES; INDEMNITY; DAMAGE WAIVER                     | 108    |
| SECTION 10.05    |                               | PAYMENTS SET ASIDE                                     | 110    |
| SECTION 10.06    |                               | SUCCESSORS AND ASSIGNS                                 | 110    |
| SECTION 10.07    |                               | TREATMENT OF CERTAIN INFORMATION; CONFIDENTIALITY      | 113    |
| SECTION 10.08    |                               | RIGHT OF SETOFF                                        | 114    |
| SECTION 10.09    |                               | INTEREST RATE LIMITATION                               | 114    |
| SECTION 10.10    |                               | COUNTERPARTS; INTEGRATION; EFFECTIVENESS               | 114    |
| SECTION 10.11    |                               | SURVIVAL OF REPRESENTATIONS AND WARRANTIES             | 115    |
| SECTION 10.12    |                               | SEVERABILITY                                           | 115    |
| SECTION 10.13    |                               | USA PATRIOT ACT NOTICE                                 | 115    |
| SECTION 10.14    |                               | GUARANTY BY SUBSIDIARIES                               | 115    |
| SECTION 10.15    |                               | TIME OF THE ESSENCE                                    | 122    |
| SECTION 10.16    |                               | GOVERNING LAW; JURISDICTION; ETC.                      | 122    |
| SECTION 10.17    |                               | WAIVER OF RIGHT TO JURY TRIAL                          | 123    |

 

3

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| **SCHEDULES** |                                                               |   |
|---------------|--------------------------------------------------------------------|--------|
|          |                                                               |   |
| 1.01-A        | Applicable  Rates                                                  |   |
| 1.01-B        | Existing  Facilities to be Paid Off                                |   |
| 1.01-C        | Existing  Letters of Credit                                        |   |
| 2.01          | Lenders;  Commitments; Percentage Shares                           |   |
| 5.05          | Litigation                                                         |   |
| 5.12          | Environmental  Matters                                             |   |
| 5.16          | Equity  Interests Held by Borrower; Equity Interests in Borrower   |   |
| 5.17          | Insurance                                                          |   |
| 5.18          | Applicable  Filing Offices                                         |   |
| 5.19          | Labor  Issues                                                      |   |
| 7.01          | Existing  Liens                                                    |   |
| 7.03          | Existing  Debt                                                     |   |
| 7.13          | Assets  of Transportation Solutions                                |   |
| 10.02         | Administrative  Agent’s Office; Certain Addresses for Notices |   |
|          |                                                               |   |
| **EXHIBITS**  |                                                               |   |
|          |                                                               |   |
| A             | Form of  Assignment and Assumption                            |   |
| B             | Form of  Compliance Certificate                               |   |
| C             | Form of  Joinder Agreement                                    |   |
| D             | Form of  Loan Notice                                          |   |
| E             | Form of  Notes                                                |   |
| F             | Form of  Swing Line Notice                                    |   |
| G             | Form of  Security Agreement                                   |   |
| H             | Borrowing  Base Certificate                                        |   |

 

4

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**CREDIT AGREEMENT**

 

This**CREDIT AGREEMENT**, dated as of October 31,2010, is among **TITAN MACHINERY INC.**, a Delawarecorporation (“***Borrower***”), the SubsidiaryGuarantors party hereto, the several financial institutions party to thisAgreement as Lenders, **BANK OF AMERICA, N.A.**and**COBANK,  ACB**, asCo-Documentation Agents and **WELLS FARGO BANK, NATIONALASSOCIATION**, a national banking association, as AdministrativeAgent, Swing Line Lender and L/C Issuer.

 

**RECITALS**

 

WHEREASBorrower and Guarantors have requested that Lenders, Swing Line Lender andL/C Issuer make available to Borrower the extensions of credit referencedherein on the terms and conditions contained herein; and

 

WHEREASLenders, Swing Line Lender and L/C Issuer have agreed severally to makeavailable to Borrower the extensions of credit referenced herein on the termsand conditions contained herein; and

 

NOW,THEREFORE, in consideration of the mutual agreements, provisions and covenantscontained herein and for other good and valuable consideration (the receipt andsufficiency of which are hereby acknowledged), the parties agree as follows:

 

**AGREEMENT**

 

**ARTICLE ICERTAIN DEFINED TERMS; CERTAIN RULES OF CONSTRUCTION**

 

**SECTION 1.01****                              ****CERTAINDEFINED TERMS.**

 

Asused herein:

 

“***Acquiree****”*has the meaning ascribed thereto in the definition of “***PermittedAcquisition***” contained herein.

 

“***Acquisition***” means any transactionor series of related transactions resulting, directly or indirectly, in:  (a) the acquisition by any Personof:  (i) all or substantially all ofthe assets of another Person; or (ii) any business unit or division ofanother Person; (b) the acquisition by any Person of in excess of 50.00%of the Equity Interests of any other Person, or otherwise causing any otherPerson to become a Subsidiary of such Person; or (c) a merger orconsolidation, or any other combination, of any Person with another Person(other than a Person that is a wholly-owned Subsidiary) in which Borrower or aSubsidiary of Borrower is the surviving Person.

 

“***Act***” means the USA Patriot Act(Title III of Pub. L. 107-56 (signed into law October 26, 2001)).

 

----

 

“***Additional Commitment Documentation***”has the meaning ascribed thereto in **Section 2.14(c)**.

 

“***Additional Commitments Effective Date***”has the meaning ascribed thereto in **Section 2.14(b)**.

 

“***Additional Floorplan Commitment***”means the commitment of an Additional Floorplan Lender to make AdditionalFloorplan Loans pursuant to **Section 2.14**.

 

“***Additional Floorplan Lender***” means,at any time, any lender providing an Additional Floorplan Commitment.

 

“***Additional Floorplan Loans***” meansany loans made in respect of Additional Floorplan Commitments.

 

“***Additional Working Capital Commitment***”means the commitment of an Additional Working Capital Lender to make AdditionalWorking Capital Loans pursuant to **Section 2.14**.

 

“***Additional Working Capital Lender***”means, at any time, any lender providing an Additional Working CapitalCommitment.

 

“***Additional Working Capital Loans***”means any loans made in respect of Additional Working Capital Commitments.

 

“***Administrative Agent***” means, at anytime, the administrative agent for the Lending Parties under each of the LoanDocuments (which, initially, shall be Wells Fargo).

 

“***Administrative Agent’s Office***” meansAdministrative Agent’s address and, as appropriate, account as set forth on **Schedule 10.02**, or such other address or account asAdministrative Agent may from time to time notify Borrower, Guarantors and eachLending Party.

 

“***Administrative Detail Form***” means anadministrative detail form in a form supplied by, or otherwise acceptable to,Administrative Agent.

 

“***Affiliate***” means, with respect toany Person, another Person that directly, or indirectly through one or moreintermediaries, Controls or is Controlled by or is under common Control withthe Person specified.

 

“***Aggregate Commitments***” means, at anytime, the sum of: (a) the Aggregate Working Capital Commitments; *plus* (b) the Aggregate Floorplan Commitments.

 

“***Aggregate Floorplan Commitments***”means, at any time, the combined Floorplan Commitments of all FloorplanLenders.

 

“***Aggregate Working Capital Commitments***”means, at any time, the combined Working Capital Commitments of all WorkingCapital Lenders.

 

“***Agreement***” means this CreditAgreement.

 

2

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“***Applicable Base Rate Margin***” means,at any time, the applicable percentage per annum (expressed in basis points)set forth on **Schedule 1.01-A**for****Base Rate Loans.

 

“***Applicable LIBOR Margin***” means, atany time, the applicable percentage per annum (expressed in basis points) setforth on **Schedule 1.01-A**for EurodollarRate Loans.

 

“***Applicable Rate***” means, at any time,the applicable percentage per annum (expressed in basis points) set forth on **Schedule 1.01-A**, each such percentage being based,subject to **Section 2.08(d)**, upon theConsolidated Leverage Ratio as set forth in the most recent ComplianceCertificate received by Administrative Agent pursuant to **Section 4.01(a)(xii) **or**Section 6.02(b),** as applicable.  If the Borrower fails to provide theCompliance Certificate as required by **Section 6.02(b)**,the Consolidated Leverage Ratio shall be deemed to be 2.01:1.00 from the dateon which such Compliance Certificate was due, as applicable, until such time assuch Compliance Certificate is delivered to the Administrative Agent, asapplicable.  Notwithstanding theforegoing, in the event that a Compliance Certificate delivered pursuant to **Section 6.02(b) **is inaccurate (regardless ofwhether (i) this Agreement is in effect, or (ii) the Working CapitalCommitments are in effect, (iii) the Floorplan Commitments are in effector (iv) any Credit Extension is outstanding when such inaccuracy isdiscovered or such Compliance Certificate was delivered), and such inaccuracy,if corrected, would have led to the application of a higher Applicable Rate forany period (an “***Applicable Period***”) than theApplicable Rate applied for such Applicable Period, then (x) the Borrowershall immediately deliver to the Administrative Agent a corrected ComplianceCertificate for such Applicable Period, (y) the Applicable Rate for suchApplicable Period shall be determined as if the Consolidated Leverage Ratio inthe corrected Compliance Certificate were applicable for such ApplicablePeriod, and (z) the Borrower shall immediately pay to the AdministrativeAgent the accrued additional interest and fees owing as a result of suchincreased Applicable Rate for such Applicable Period, which payment shall bepromptly applied by the Administrative Agent in accordance with **Section 2.12**. Nothing in this paragraph shall limit the rights of the AdministrativeAgent and Lenders with respect to **Section 2.08(b) **and**Section 8.01**, provided thatpayment of any amounts due under the previous sentence shall cure any Defaultand Event of Default resulting from any such inaccurate Compliance Certificate(but not any underlying financial covenant or other default).

 

“***Arranger***” means Wells FargoSecurities, LLC as sole lead arranger and sole book runner for the transactionscontemplated by the Loan Documents.

 

“***Asset Sale****”*means any direct or indirect Disposition (whether in one transaction or aseries of related transactions) by Borrower or any Subsidiary thereof to anyPerson other than Borrower or any wholly-owned Subsidiary thereof of:  (a) any Equity Interests of anySubsidiary of Borrower; or (b) any other property of Borrower or anySubsidiary thereof; *provided* that “*Asset Sale*” shall not include:  (i) any Disposition by Borrower or anySubsidiary thereof of Investments of the type described in **Section 7.02**other than **Section 7.02(h)**; (ii) anyDisposition that is governed by and complies with **Section 7.05**other than Section 7.05(e); or (iii) any issuance by Borrower ofperpetual common Equity Interests.

 

“***Assignment and Assumption***” means anassignment and assumption entered into by a Lending Party and an EligibleAssignee (with the consent of any party whose consent is required by **Section 10.06(b)**), and accepted by AdministrativeAgent, in substantially the form of **Exhibit A**or any other form approved by Administrative Agent.

 

3

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“***Attributable Debt***” means, on anydate of determination:  (a) inrespect of any capital lease of any Person, the capitalized amount thereof thatwould appear on a balance sheet of such Person prepared as of such date inaccordance with GAAP; and (b) in respect of any Synthetic LeaseObligation, the capitalized amount of the remaining lease payments under therelevant lease that would appear on a balance sheet of such Person prepared asof such date in accordance with GAAP if such lease were accounted for as acapital lease.

 

“***Audited Financial Statements***” meansthe audited consolidated balance sheet for Borrower for the fiscal year ended January 31,2010, and the related consolidated statements of income or operations,shareholders’ equity and cash flows for such fiscal year of Borrower, includingthe notes thereto, together with the opinion issued thereon by the independentaccountants that audited such financial statements.

 

“***Automatic Extension Letter of Credit***”means a Letter of Credit that has automatic extension provisions.

 

“***Bankruptcy Code***” means the federalBankruptcy Reform Act of 1978 (11 U.S.C. Sections 101 *et seq*.).

 

“***Bankruptcy Laws***” means,collectively:  (a) the BankruptcyCode; and (b) all other liquidation, conservatorship, bankruptcy,assignment for the benefit of creditors, moratorium, rearrangement,receivership, insolvency, reorganization, or similar debtor relief Laws of theUnited States or other applicable jurisdictions from time to time in effect andaffecting the rights of creditors generally.

 

“***Base Rate***” means, for anyday, a fluctuating rate per annum equal to the higher of:  (a) the Federal Funds Rate *plus* 100.00 basis points per annum; (b) the Daily LIBORRate; or (c) the per annum rate of interest in effect for such day aspublicly announced from time to time by Wells Fargo as its “***Prime Rate***,” such rate being therate of interest most recently announced within Wells Fargo at its principaloffice as its “***Prime Rate***,” with theunderstanding that Wells Fargo’s “***Prime Rate***”is one of Wells Fargo’s base rates and serves as the basis upon which effectiverates of interest are calculated for those loans making reference thereto, andis evidenced by the recording thereof after its announcement in such internalpublication or publications as Wells Fargo may designate.  Any change in Wells Fargo’s “***Prime Rate***” as announced by WellsFargo shall take effect at the opening of business on the day specified in thepublic announcement of such change.  ThePrime Rate is not intended to be lowest rate of interest charged by Wells Fargoin connection with extensions of credit to borrowers.

 

“***Base Rate Loan***” means a Loan thatbears interest as set forth in **Section 2.08(a)(ii)**.

 

“***Borrower Extension Notice***” has themeaning ascribed thereto in **Section 2.16**.

 

“***Borrowing***” means a Working CapitalBorrowing, a Floorplan Borrowing or a Swing Line Borrowing, as the context mayrequire.

 

“***Borrowing Base Certificate***” shallmean a certificate, in substantially the form of **Exhibit H**attached hereto and made a part hereof, setting forth the Working CapitalBorrowing Base and the Floorplan Borrowing Base and the component calculationsthereof.

 

4

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“***Business Day***” means any day otherthan a Saturday, Sunday or other day on which commercial banks are authorizedto close under the Laws of, or are in fact closed in, New York, New York or thecity and state where Administrative Agent’s Office is located; *provided* that, if any such day relates to the EurodollarRate or any Eurodollar Rate Loan, such day must also be a day on which dealingsin Dollar deposits are conducted by and between banks in the London interbankoffered market.

 

“***Capital Expenditures***” means allexpenditures (whether paid in cash or other consideration or accrued as aliability and including that portion of capital leases that is capitalized onthe balance sheet of such Person including in connection with a sale-leasebacktransaction) by such Person for the acquisition or leasing of fixed or capitalassets or additions to equipment (including replacements, capitalized repairsand improvements during such period) that are required to be capitalized underGAAP on a balance sheet of such Person, *but specifically excluding*any Equipment purchased by a Loan Party for lease or rental to others.  For purposes of this definition:  (a) the purchase price of equipment thatis purchased simultaneously with the trade-in of existing equipment owned bysuch Person thereof or with insurance proceeds shall be included in CapitalExpenditures only to the extent of the gross amount of such purchase price *minus*the credit granted by the seller of such equipment forsuch equipment being traded in at such time, or the amount of such proceeds, asthe case may be; and (b) neither an acquisition to the extent made withthe proceeds of a Disposition in accordance with **Section 2.05(c)(i) **noran Acquisition complying with **Section 7.02(e) **shallconstitute a “***Capital Expenditure***.”

 

“***Cash Collateral***” means allCollateral that has, in accordance with the provisions hereof, been pledged toCash Collateralize: (a) L/C Obligations; (b) at Borrower’s option inaccordance with **Section 2.05(c)(vi)**, WorkingCapital Loans that are Eurodollar Rate Loans; or (c) at Borrower’s optionin accordance with **Section 2.05(c)(vii)**,Floorplan Loans that are Eurodollar Rate Loans.

 

“***Cash Collateralize***” means to pledgeand deposit with or deliver to Administrative Agent, for the benefit of (a) L/C Issuerand Working Capital Lenders, as collateral for the L/C Obligations, (b) atBorrower’s option in accordance with **Section 2.05(c)(vi)**,Working Capital Lenders, as collateral for Working Capital Loans that are EurodollarRate Loans, cash or deposit account balances pursuant to documents in form andsubstance satisfactory to Administrative Agent and L/C Issuer (whichdocuments are hereby consented to by L/C Issuer and Working CapitalLenders) or (c) at Borrower’s option in accordance with **Section 2.05(c)(vii)**, Floorplan Lenders, as collateralfor Floorplan Loans that are Eurodollar Rate Loans, cash or deposit accountbalances pursuant to documents in form and substance satisfactory toAdministrative Agent (which documents are hereby consented to by FloorplanLenders).

 

“***Cash Equivalents***” means, as to anyPerson:  (a) securities issued ordirectly and fully guaranteed or insured by the United States or any agency orinstrumentality thereof (but only so long as the full faith and credit of theUnited States is pledged in support thereof) having maturities of not more thantwelve months from the date of acquisition; (b) securities issued by anystate of the United States or any political subdivision of any such state orany public instrumentality thereof having maturities of not more than ninetydays from the date of acquisition and having one of the two highest ratingsfrom either Standard & Poor’s Corporation or Moody’s Investors Service, Inc.;(c) domestic and Eurodollar certificates of deposit, time or demanddeposits or bankers’ acceptances maturing within six months after the date ofacquisition issued or guaranteed by or placed with, and money market depositaccounts issued or offered by: (i) any Lender; and (ii) any commercial bank organized underthe laws of the United States or any state thereof or the District of Columbiahaving combined capital and surplus of not less

 

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than$250,000,000; (d) repurchase obligations with a term of not more thanthirty days for underlying securities of the types described in clause (a) and(b) of this definition entered into with any bank meeting thequalifications specified in clause (c) of this definition;(e) commercial paper issued by the parent corporation of any Lender or anycommercial bank (provided that the parent corporation and the bank are bothincorporated in the United States) having capital and surplus in excess of $250,000,000and commercial paper issued by any Person incorporated in the United States,which commercial paper is rated at least A-1 or the equivalent thereof byStandard & Poor’s Corporation or at least P-1 or the equivalentthereof by Moody’s Investors Service, Inc., and in each case maturing notmore than ninety days after the date of acquisition by such Person; and(f) investments in money market funds substantially all the assets ofwhich are comprised of securities of the types described in clauses (a) through(e) of this definition.

 

“***Change in Law***” means any of thefollowing having general applicability occurring after the date of thisAgreement:  (a) the adoption ortaking effect of any law, rule, regulation or treaty; (b) any change inany law, rule, regulation or treaty or in the administration, interpretation orapplication thereof by any Governmental Authority; or (c) the making orissuance of any request, guideline or directive (whether or not having theforce of law) by any Governmental Authority.

 

“***Change of Control***” means (a) anevent or series of events by which any “person” or “group” (as such terms areused in Sections 13(d) and 14(d) of the Exchange Act, butexcluding any employee benefit plan of such person or its subsidiaries, and anyperson or entity acting in its capacity as trustee, agent or other fiduciary oradministrator of any such plan) becomes the “beneficial owner” (as defined inRules 13d-3 and 13d-5 under the Exchange Act, except that a person orgroup shall be deemed to have “beneficial ownership” of all securities thatsuch person or group has the right to acquire, whether such right isexercisable immediately or only after the passage of time (such right, an “*option right*”)), directly or indirectly, of 35.00% or moreof the Equity Interests of Borrower entitled to vote for members of the boardof directors or equivalent governing body of Borrower on a fully-diluted basis(and taking into account all such securities that such person or group has theright to acquire pursuant to any option right), (b) the failure of amajority of the seats (other than vacant seats) on the board of directors ofBorrower to be occupied by persons who were nominated by the board of directorsof Borrower or appointed by directors so nominated, (c) after taking anyto account any modification or waiver thereunder, the occurrence of any changein control (or similar event, however denominated) with respect to Borrower orany of its Subsidiaries shall occur under and as defined in any indenture oragreement to which Borrower or any of its Subsidiaries is a party, or (d) thefailure of Borrower to own directly or indirectly, beneficially and of record,100% of the aggregate ordinary voting power and economic interests representedby the issued and outstanding Equity Interests of each Subsidiary (or suchlesser percentage as may be owned, directly or indirectly, as of the ClosingDate or the later acquisition thereof) except where such failure is as a resultof a transaction permitted by the Loan Documents.

 

“***Closing Date***” means the first dateon which all of the conditions precedent in **Section 4.01**are satisfied (or waived in accordance with **Section 10.01**).

 

“***CNH Intercreditor Agreement***” meansan Intercreditor Agreement among CNH America LLC, CNH Capital America LLC, andWells Fargo Bank, National Association.

 

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“***CNH Parts Reserve***” means an amountestablished by the Administrative Agent to reflect the amount of proceeds ofCase New Holland parts which, in accordance with the terms of the CNHIntercreditor Agreement, CNH Capital America LLC is entitled to receive.

 

“***Code***” means the Internal RevenueCode of 1986.

 

“***Collateral***” means all property andinterests in property and proceeds thereof now owned or hereafter acquired byBorrower or any Subsidiary thereof in or upon which a Lien now or hereafterexists in favor of Administrative Agent, for the benefit of itself and eachLending Party (or any of the foregoing), whether under this Agreement or underany other Loan Document.

 

“***Collateral Documents***” means,collectively, the Guaranties, the Security Documents and all other securityagreements, mortgages, deeds of trust, patent, trademark and copyrightassignments, lease assignments and other similar documents between Borrower orany Subsidiary thereof and Administrative Agent, for the benefit of itself andeach Lending Party (or any of the foregoing), now or hereafter delivered toAdministrative Agent pursuant to or in connection with the transactionscontemplated hereby, and all financing statements (or comparable documents nowor hereafter filed in accordance with the Uniform Commercial Code or othercomparable Law) against Borrower or any Subsidiary thereof as debtor in favorof Administrative Agent, for the benefit of itself and each Lending Party (orany of the foregoing), as secured party.

 

“***Commitment***” means, as to any Lender,such Lender’s Working Capital Commitment, Floorplan Commitment or Swing LineCommitment, as applicable.

 

“***Compliance Certificate***” means a certificatesubstantially in the form of **Exhibit B**.

 

“***Consolidated EBITDAR***” means, for anyperiod, for Borrower and its Subsidiaries on a consolidated basis, the sum of(without duplication): (a) Consolidated Net Income for such period; *plus*(b) Consolidated Interest Expense (net of interest income) for such periodto the extent included in the determination of such Consolidated Net Income; *plus*(c) and all amounts treated as expenses for suchperiod for depreciation and amortization, but in each case only to the extentincluded in the determination of such Consolidated Net Income; *plus* (d) Consolidated Rent Expense *plus*(e) income tax expense related to income made by the Borrower and itsSubsidiaries; *provided* that Consolidated NetIncome shall be computed for all of the foregoing purposes without givingeffect to extraordinary gains or extraordinary losses.

 

“***Consolidated Fixed Charge Coverage Ratio***”means, as of the last day of a fiscal quarter, for the period consisting of thefour consecutive Fiscal Periods ending on such date, subject to **Section 1.02(h)**, the ratio of:  (a) the sum for such period of (withoutduplication):  (i) ConsolidatedEBITDAR; *minus* (ii) all payments in cash fortaxes related to income made by Borrower and its Subsidiaries; *minus* (iii) Capital Expenditures actually made in cashby Borrower and its Subsidiaries (net of any insurance proceeds, condemnationawards or proceeds relating to any financing with respect to suchexpenditures); *minus* (iv) RestrictedPayments paid in cash by Borrower; *to* (b) of:  (i) Consolidated Interest Expense; *plus* (ii) Consolidated Rent Expense; *plus* (iii) without duplication, all current maturitiesof long-term Debt (including with respect to Debt that is a capital lease).

 

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“***Consolidated Interest Expense***”means, for any period, for Borrower and its Subsidiaries on a consolidatedbasis, the sum of (without duplication): (a) all interest, premium payments, debt discount, fees, chargesand related expenses in connection with borrowed money (including capitalizedinterest) or in connection with the deferred purchase price of assets duringsuch period; *plus*(b) all payments madeunder interest rate Swap Contracts during such period to the extent notincluded in clause (a) of this definition; *minus*(c) all payments received under interest rate Swap Contracts during suchperiod; *plus*(d) the portion of rentexpense with respect to such period under capital leases that is treated asinterest in accordance with GAAP.

 

“***Consolidated Leverage Ratio***” means,as of any date of determination, the ratio of: (a)  Consolidated Total Liabilities; *to*(b) Consolidated Tangible Net Worth.

 

“***Consolidated Net Income***” means forany period, the sum of net income (or loss) for such period of the Borrower andits Subsidiaries on a consolidated basis determined in accordance with GAAP,but excluding any income of any Person if such Person is not a Subsidiary,except that the Borrower’s direct or indirect equity in the net income of anysuch person for such period shall be included in such Consolidated Net Incomein accordance with GAAP.

 

“***Consolidated Rent Expense***” means forsuch period, total rental expenses attributable to operating leases of theBorrower and its Subsidiaries for real property on a consolidated basis.

 

“***Consolidated Tangible Net Worth***”means, as of any date of determination, for Borrower and its Subsidiaries on aconsolidated basis, the sum of (without duplication):  (a) stockholders’ equity; *minus* (b) treasury stock; *minus*(c) all intangible assets, including goodwill, patents, trademarks, tradenames, organization expense, unamortized debt discount and expense, capitalizedor deferred research and development costs, deferred marketing expenses, andother like intangibles.

 

“***Consolidated Total Assets***” means asof any date, the value of the assets reflected on the consolidated balancesheet of the Borrower and its Subsidiaries as of such date prepared inaccordance with GAAP.

 

“***Consolidated Total Liabilities***”means as of any date, total liabilities reflected on the consolidated balancesheet of the Borrower and its Subsidiaries as of such date prepared inaccordance with GAAP.

 

“***Contractual Obligation***” means, as toany Person, any document or other agreement or undertaking to which such Personis a party or by which it or any of its property is bound.

 

“***Control***” means the possession,directly or indirectly, of the power to direct or cause the direction of themanagement or policies of a Person, whether through the ability to exercisevoting power, by contract or otherwise. The terms “***Controlling***” and “***Controlled***” have meaningscorrelative thereto.  Without limitingthe generality of the foregoing, a Person shall be deemed to be Controlled byanother Person if such other Person possesses, directly or indirectly, thepower to vote 12.50% or more of the securities having ordinary voting power forthe election of directors, managing general partners or the equivalent.  It is agreed that Dealer Sites, LLC shall notbe deemed to be under common control with Borrower or other Loan Parties.

 

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“***Credit Extension***” means each of thefollowing: (a) a Borrowing; and (b) an L/C Credit Extension.

 

“***Daily LIBOR***” means, for any day, therate of interest equal to LIBOR then in effect for delivery for a one (1) monthperiod.   When interest is determined inrelation to Daily LIBOR, each change in the interest rate shall becomeeffective each Business Day that Administrative Agent determines that DailyLIBOR has changed.

 

“***Daily LIBOR Rate***” means, for anyday, a fluctuating rate per annum equal to Daily LIBOR for such day (determinedon a daily basis) *plus* 100.00 basis points perannum, *provided* if for any reason Daily LIBORis unavailable and/or the Administrative Agent is unable to determine DailyLIBOR for any period, the Administrative Agent may, at its discretion, either: (a) selecta replacement index based on the arithmetic mean of the quotations, if any, ofthe interbank offered rate by first class banks in London or New York fordeposits with comparable maturities or (b) accrue interest at a rate perannum equal to Wells Fargo’s “***Prime Rate***”during any period which Daily LIBOR is unavailable or cannot be determined,such “***Prime Rate***,” being the rateof interest most recently announced within Wells Fargo at its principal officeas its “***Prime Rate***,” with theunderstanding that Wells Fargo’s “***Prime Rate***”is one of Wells Fargo’s base rates and serves as the basis upon which effectiverates of interest are calculated for those loans making reference thereto, andis evidenced by the recording thereof after its announcement in such internalpublication or publications as Wells Fargo may designate.  Any change in Wells Fargo’s “***Prime Rate***” as announced by WellsFargo shall take effect at the opening of business on the day specified in thepublic announcement of such change.  ThePrime Rate is not intended to be lowest rate of interest charged by Wells Fargoin connection with extensions of credit to borrowers.

 

“***Debt***” means, as to any Person as ofany date of determination, without duplication, all of the following, whetheror not included as indebtedness or liabilities in accordance with GAAP:  (a) all obligations of such Person forborrowed money and all obligations of such Person evidenced by bonds,debentures, notes, loan agreements or other similar instruments; (b) alldirect or contingent obligations of such Person arising under letters of credit(including standby and commercial letters of credit), bankers’ acceptances,bank guaranties, surety bonds and similar instruments; (c) the SwapTermination Value under all Swap Contracts to which such Person is a party;(d) all obligations of such Person to pay the deferred purchase price ofproperty or services (other than trade accounts payable in the ordinary courseof business not past due for more than sixty days); (e) indebtedness(excluding prepaid interest thereon) secured by a Lien on property owned orbeing purchased by such Person (including indebtedness arising underconditional sales or other title retention agreements), whether or not suchindebtedness shall have been assumed by such Person or is limited in recourse;(f) the amount of Attributable Debt in respect of all capital leaseobligations and Synthetic Lease Obligations of such Person; (g) allobligations of such Person to purchase, redeem, retire, defease or otherwisemake a payment in respect of Disqualified Equity Interests valued, in the caseof a redeemable preferred interest, at the greater of its voluntary orinvoluntary liquidation preference *plus* accruedand unpaid dividends; and (h) all Guarantees of such Person in respect ofany of the foregoing.  For all purposeshereof, the Debt of any Person shall include the Debt of any partnership orjoint venture (other than a joint venture that is itself a corporation orlimited liability company) in which such Person is a general partner or a jointventurer, unless such Debt is expressly made non-recourse to such Person.

 

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“***Default***” means any Event of Defaultor any event or condition that, with the giving of notice, the passage of time,or both, would constitute an Event of Default.

 

“***Default Rate***” means:  (a) when used with respect to Obligationsother than L/C Fees, a per annum interest rate equal to the sum of:  (i) the Base Rate; *plus*(ii) the Applicable Rate, if any, applicable to Base Rate Loans; *plus* (iii) 200.00 basis points per annum; *provided* that, with respect to a Eurodollar Rate Loan, theDefault Rate shall be a per annum interest rate equal to the sum of:  (A) the interest rate (including anyApplicable Rate) otherwise applicable to such Loan; *plus*(B) 200.00 basis points per annum; and (b) when used with respect toL/C Fees, a per annum interest rate equal to the sum of (i) theApplicable Rate *plus* (ii) 200.00 basispoints per annum.

 

“***Defaulting Lender***” means any Lenderthat:  (a) has failed to fund anyportion of the Working Capital Loans, any portion of the Floorplan Loans, any participationsin L/C Obligations or any participations in Swing Line Loans required tobe funded by it hereunder within one Business Day of the date required to befunded by it hereunder; (b) has otherwise failed to pay to AdministrativeAgent or any Lending Party, as the case may be, any other amount required to bepaid by it hereunder within one Business Day of the date when due, unless thesubject of a good faith dispute; or (c) has been deemed insolvent orbecome the subject of a proceeding under any Bankruptcy Law.

 

“***Disqualified Equity Interest***” meansany Equity Interest of any Person that, by its terms (or by the terms of anysecurity into which it is convertible or for which it is exchangeable at theoption of the holder thereof), or upon the happening of any event, matures oris mandatorily redeemable, pursuant to a sinking fund obligation or otherwise,or is redeemable at the option of the holder thereof, in whole or in part, orrequires or mandates payments or distributions in cash, on or prior to the datethat is one year after the last to occur of the Working Capital Maturity Dateand Floorplan Maturity Date.  The term “DisqualifiedEquity Interest” shall also include any options, warrants or other rights thatare convertible into Disqualified Equity Interest or that are redeemable at theoption of the holder, or required to be redeemed, prior to the date that is oneyear after the last to occur of the Working Capital Maturity Date and FloorplanMaturity Date.

 

“***Disposition***” means the sale, assignmenttransfer, conveyance, license, lease or other disposition (including any saleand leaseback transaction) of any property by any Person, including any sale,assignment, transfer, conveyance or other disposal, with or without recourse,of any notes or accounts receivable or any rights and claims associatedtherewith.  The term “*Dispose*” has a meaning correlative thereto.

 

“***Dollar***” and “***$***”mean lawful money of the United States.

 

“***Domestic Subsidiary***” means aSubsidiary incorporated or organized under the laws of the United States, anyState thereof or the District of Columbia.

 

“***Electronic Platform***” means anelectronic system for the delivery of information (including documents), suchas DXSyndicateTM, that may or may not be provided or administered by AdministrativeAgent or an Affiliate thereof.

 

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“***Eligible Accounts***” means all unpaidAccounts of the Loan Parties,net of any credits, but excluding any such Accounts having any of the followingcharacteristics:

 

(a)           That portion of Accounts unpaid 90 days or moreafter the invoice date;

 

(b)           That portion of Accounts related to goods orservices with respect to which a Loan Party has received written notice of aclaim or dispute, which are subject to a claim of offset or a contra account,or which reflect a reasonable reserve for warranty claims or returns;

 

(c)           That portion of Accounts not yet earned by the finaldelivery of goods or that portion of Accounts not yet earned by thefinal rendition of services by a Loan Party to the account debtor, includingwith respect to both goods and services, progress billings, and that portion ofAccounts for which an invoice has not been sent to the applicable accountdebtor;

 

(d)           Accounts constituting (i) proceeds of copyrightablematerial unless such copyrightable material shall have been registered with theUnited States Copyright Office, or (ii) proceeds of patentable inventionsunless such patentable inventions have been registered with the United StatesPatent and Trademark Office;

 

(e)           Accounts owed by any unit of the United Statesfederal government or any foreign government;

 

(f)            Accounts denominated in any currency other thanUnited States dollars;

 

(g)           Accounts owed by an account debtor located outsidethe United States or Canada (excludingthe provinces of Newfoundland and Quebec, the Northwest Territories and theTerritory of Nunavut) which are not (i) backed by a bank letter ofcredit naming the Administrative Agent as beneficiary or assigned to theAdministrative Agent, in the Administrative Agent’s possession or control, andwith respect to which a control agreement concerning the letter-of-creditrights is in effect, and acceptable to the Administrative Agent in allrespects, in its sole discretion, or (ii) covered by a foreign receivablesinsurance policy acceptable to the Administrative Agent in its sole discretion;

 

(h)           Accounts owed by an account debtor for which a LoanParty has received notice that such account debtor is insolvent, the subject ofbankruptcy proceedings or has gone out of business;

 

(i)            Accounts owed by a Subsidiary, Affiliate, officer oremployee of the Borrower or any Subsidiary of Borrower;

 

(j)            Accounts not subject to a duly perfected securityinterest in the Administrative Agent’s favor;

 

(k)           Accounts which are subject to any Lien in favor ofany Person other than the Administrative Agent, unless such Account issubject to a duly perfected first priority security 

 

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interest in the Administrative Agent’s favor pursuant to anintercreditor agreement acceptable to Administrative Agent with each otherPerson holding a Lien in such Account;

 

(l)            That portion of Accounts that has been restructured,extended, amended or modified, other than Accounts extended as a result ofmarketing campaigns entered into in the ordinary course of business;

 

(m)          Accounts owed by an account debtor, regardless ofwhether otherwise eligible, to the extent that the aggregate balance of suchAccounts exceeds twenty percent (20%) of the aggregate amount of all EligibleAccounts; and

 

(n)           Accounts owed by an account debtor, regardless ofwhether otherwise eligible, if twenty percent (20%) or more of the total amountof Accounts due from such debtor is ineligible hereunder.

 

“***Eligible Assignee***” means any of thefollowing:  (a) a Lender;(b) an Affiliate of a Lender; (c) any Person (other than a naturalperson) that is (or will be) engaged in making, purchasing, holding orotherwise investing in commercial loans and similar extensions of credit in theordinary course of business to the extent such Person is administered ormanaged by:  (i) a Lender;(ii) an Affiliate of a Lender; or (iii) a Person or an Affiliate of aPerson that administers or manages a Lender; and (d) any other Person(other than a natural person) approved by Administrative Agent, Swing LineLender and L/C Issuer and Borrower as provided in this Agreement; *provided* that, notwithstanding the foregoing, “***Eligible Assignee***” shall not includeany Affiliates of Borrower or any competitor of Borrower or any of itsSubsidiaries or any of such Person’s Affiliates.

 

“***Eligible Inventory***” means Inventoryowned by any Loan Party; but excluding any Inventory having any of thefollowing characteristics:

 

(a)           Inventory that is: not subject to a duly perfectedfirst priority security interest in the Administrative Agent’s favor; coveredby any negotiable or non-negotiable warehouse receipt, bill of lading or otherdocument of title; on consignment from any Person; on consignment to any Personor subject to any bailment unless such consignee or bailee has executed anagreement with the Administrative Agent;

 

(b)           Packaging, raw materials, parts, sample Inventory,or customer supplied parts or Inventory and other items not held for sale;

 

(c)           Work-in-process Inventory;

 

(d)           Inventory that is materially damaged, defective,obsolete, slow moving or not currently saleable in the normal course of theLoan Parties’ operations, or the amount of such Inventory that has been reducedby shrinkage;

 

(e)           Inventory that a Loan Party has returned;

 

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(f)            Inventory manufactured by a Loan Party pursuant to alicense unless the applicable licensor has agreed in writing to permit theAdministrative Agent to exercise its rights and remedies against suchInventory;

 

(g)           Inventory that is not covered by casualty insurancereasonably acceptable to Administrative Agent;

 

(h)           Inventory that is subject to a Lien in favor of anyPerson other than the Administrative Agent unless such Inventory issubject to a duly perfected first priority security interest in theAdministrative Agent’s favor pursuant to an intercreditor agreement acceptableto Administrative Agent with each other Person holding a Lien in suchInventory; and

 

(i)            Inventory that is in-transit, unless the in-transitInventory is Eligible Rental Equipment or other Inventory in-transit betweenthe Loan Party’s locations.

 

“***Eligible New Equipment Inventory***”means all Inventory owned by a Loan Party which is (a) Eligible Inventoryin all respects and (b) Inventory which consists of new Equipment held bya Loan Party for sale to others.

 

“***Eligible Parts and Attachments Inventory***”means Inventory owned by a Loan Party which is parts held by a Loan Party forsale to others, valued at the lower of cost or market in accordance with GAAP;but excluding any Inventory which is parts having any of the followingcharacteristics:

 

(a)           Inventory that is: notsubject to a duly perfected first priority security interest in theAdministrative Agent’s favor, *except**for* Case New Holland parts if Administrative Agent’ssecurity interest is adequately addressed in a CNH Intercreditor Agreementacceptable to Administrative Agent;

 

(b)           Inventory that is: coveredby any negotiable or non-negotiable warehouse receipt, bill of lading or otherdocument of title; on consignment from any Person; on consignment to any Personor subject to any bailment unless such consignee or bailee has executed anagreement with the Administrative Agent;

 

(c)           Packaging, raw materials, sample Inventory, orcustomer supplied parts or Inventory and other items not held for sale;

 

(d)           Work-in-process Inventory;

 

(e)           Inventory that is materially damaged, defective,obsolete or not currently saleable in the normal course of the Loan Parties’operations, or the amount of such Inventory that has been reduced by shrinkage;

 

(f)            Inventory that a Loan Party has returned;

 

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(g)           Inventory manufactured by a Loan Party pursuant to alicense unless the applicable licensor has agreed in writing to permit theAdministrative Agent to exercise its rights and remedies against suchInventory;

 

(h)           Inventory that is not covered by casualty insurancereasonably acceptable to Administrative Agent;

 

(i)            Inventory that is subject to a Lien in favor of anyPerson other than the Administrative Agent**unlesssuch Inventory is subject to a duly perfected first priority security interestin the Administrative Agent’s favor pursuant to an intercreditor agreementacceptable to Administrative Agent with each other Person holding a Lien insuch Inventory;

 

(j)            Inventory that is in-transit, unless the in-transitInventory is in-transit between the Loan Party’s locations, and

 

(k)           Inventory not subject to a buy-back and held byBorrower for more than three (3) years which exceeds an aggregate value of$1,000,000.

 

“***Eligible Rental Equipment***” means allEquipment owned by a Loan Party which is (a) Eligible Inventory in allrespects and (b) consists of Equipment held by a Loan Party for lease orrental to others.

 

“***Eligible Used Equipment Inventory***”means all Inventory owned by a Loan Party which is (a) Eligible Inventoryin all respects, (b) Inventory which consists of used Equipment held by aLoan Party for sale to others and (c) not held by Borrower for more thanthree (3) years.

 

“***Eligible Work In Process Inventory***”means all Inventory owned by a Loan Party which is Eligible Inventory orEligible Parts and Attachments Inventory in all respects except for the factthat such Inventory is work in process inventory (for clarity, Eligible Work inProcess Inventory includes, without limitation, parts and services).

 

“***Environmental Laws***” means any andall Federal, state, local, and foreign statutes, laws, regulations, ordinances,rules, judgments, orders, decrees, permits, concessions, grants, franchises,licenses, agreements or governmental restrictions relating to pollution, theprotection of the environment or the release of any materials into theenvironment, including those related to Hazardous Materials or wastes, airemissions and discharges to waste or public systems.

 

“***Environmental Liability***” means anyliability, contingent or otherwise (including any liability for damages, costsof environmental remediation, fines, penalties or indemnities), of Borrower,any other Loan Party or any of their respective Subsidiaries directly orindirectly resulting from or based upon: (a) violation of any Environmental Law; (b) the generation,use, handling, transportation, storage, treatment or disposal of any HazardousMaterials; (c) exposure to any Hazardous Materials; (d) the releaseor threatened release of any Hazardous Materials into the environment; or(e) any contract, agreement or other consensual arrangement pursuant towhich liability is assumed or imposed with respect to any of the foregoing.

 

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“***Environmental Permit***” means anypermit, approval, authorization, certificate, license, variance, filing orpermission required by or from any Governmental Authority pursuant to anyEnvironmental Law.

 

“***Equipment***” means whole goods (andnot attachments) held for resale, lease or rental.

 

“***Equity Interests***” means, withrespect to any Person, all of the shares of capital stock of (or otherownership or profit interests in) such Person, all of the warrants, options orother rights for the purchase or acquisition from such Person of shares ofcapital stock of (or other ownership or profit interests in) such Person, allof the securities convertible into or exchangeable for shares of capital stockof (or other ownership or profit interests in) such Person or warrants, rightsor options for the purchase or acquisition from such Person of such shares (orsuch other interests), and all of the other ownership or profit interests insuch Person (including partnership, member or trust interests therein), whethervoting or nonvoting, and whether or not such shares, warrants, options, rightsor other interests are outstanding on any date of determination.

 

“***ERISA***” means the Employee RetirementIncome Security Act of 1974.

 

“***ERISA Affiliate***” means any trade orbusiness (whether or not incorporated) under common control with Borrower orany Subsidiary thereof within the meaning of Section 414(b) or (c) ofthe Code (and Sections 414(m) and (o) of the Code forpurposes of provisions relating to Section 412 of the Code).

 

“***ERISA Event***” means any of thefollowing:  (a) a Reportable Eventwith respect to a Pension Plan; (b) the incurrence by Borrower or an ERISAAffiliate of any liability with respect to a withdrawal by Borrower or anyERISA Affiliate from a Pension Plan subject to Section 4063 of ERISAduring a plan year in which it was a substantial employer (as defined in Section 4001(a)(2) ofERISA) or a cessation of operations that is treated as such a withdrawal underSection 4062(e) of ERISA; (c) the incurrence by Borrower or anyERISA Affiliate of any liability with respect to a complete or partialwithdrawal by Borrower or any ERISA Affiliate from a Multiemployer Plan or thereceipt by Borrower or an ERISA Affiliate of notification that a MultiemployerPlan is in reorganization; (d) the filing of a notice of intent toterminate, the treatment of a Plan amendment as a termination underSections 4041 or 4041A of ERISA, or the commencement of proceedings by thePBGC to terminate a Pension Plan or Multiemployer Plan; (e) an event orcondition that constitutes grounds under Section 4042 of ERISA for thetermination of, or the appointment of a trustee to administer, any Pension Planor Multiemployer Plan; (f) the imposition of any liability underTitle IV of ERISA, other than for PBGC premiums due but not delinquentunder Section 4007 of ERISA, upon Borrower or any ERISA Affiliate.

 

“***Eurodollar Rate***” means for anyInterest Period, with respect to a Eurodollar Rate Loan, a rate per annum(rounded upwards, as necessary, to the nearest one one-hundredth of 1.00%)obtained by dividing:  (a) the rateper annum determined by Administrative Agent at approximately 11:00 a.m.(London time) on the date that is two Business Days prior to the beginning ofsuch Interest Period by reference to the British Bankers’ Association “InterestSettlement Rates” for deposits in Dollars (as set forth by any service(including Bloomberg, Reuters and Thomson Financial) selected by AdministrativeAgent that has been nominated by the British Bankers’ Association as anauthorized information vendor for the purpose of displaying such rates) in anamount approximately equal to the principal amount to which such InterestPeriod applies (for delivery on the first day of such Interest Period) with aterm

 

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equivalentto such Interest Period; *provided* that,if an interest rate is not ascertainable pursuant to the foregoing provisionsof this definition, then “*Eurodollar Rate*”shall be the interest rate per annum determined by Administrative Agent to bethe average of the rates per annum at which deposits in Dollars in an amountapproximately equal to the principal amount to which such Interest Periodapplies (for delivery on the first day of such Interest Period) with a termequivalent to such Interest Period are offered for such Interest Period byWells Fargo to major banks in the London interbank offered market in London,England at approximately 11:00 a.m. (London time) on the date that is twoBusiness Days prior to the beginning of such Interest Period; *by* (b) the sum of: (i) one; *minus*(ii) the stated maximum rate (rounded upwards, as necessary, to thenearest one one-hundredth of 1.00%), as in effect on the date of thedetermination of any “*Eurodollar Rate*”in accordance with clause (a) of this definition, of all reserverequirements (including any marginal, emergency, supplemental, special or otherreserves) applicable on such date to any member bank of the Federal ReserveSystem in respect of “Eurocurrency liabilities” as defined in Regulation D (orany successor category of liabilities under Regulation D) of the FRB as ineffect on such day, whether or not applicable to any Lending Party.  Each determination by Administrative Agentpursuant to this definition shall be conclusive absent manifest error.

 

“***Eurodollar Rate Loan***” means a Loanthat bears interest based upon the Eurodollar Rate.

 

“***Event of Default***” has the meaningascribed thereto in **Section 8.01**.

 

“***Event of Loss***” means, with respectto any property, any of the following: (a) any loss, destruction or damage of such property; or(b) any actual condemnation, seizure or taking, by exercise of the powerof eminent domain or otherwise, of such property, or confiscation of suchproperty or the requisition of the use of such property.

 

“***Exchange Act***” means the SecuritiesExchange Act of 1934.

 

“***Excluded Taxes***” means, with respectto Administrative Agent, any Lending Party or any other recipient of anypayment to be made by or on account of any obligation of Borrower or anyGuarantor hereunder or under any Loan Document, any taxes on or measured byoverall net income (however denominated), franchise taxes (in lieu of netincome taxes) and branch profits taxes, in each case imposed on it by thejurisdiction (or any political subdivision thereof) under the laws of whichsuch recipient is organized or in which its principal office is located or, inthe case of any Lending Party, in which its applicable Lending Office islocated.

 

“***Existing Facilities to be Paid Off***”means, collectively, the credit facilities identified on **Schedule 1.01-B**.

 

“***Existing Guaranteed Obligations***” hasthe meaning ascribed thereto in **Section 10.14(j)**.

 

“***Existing Letters of Credit***” meansthe letters of credit identified on **Schedule 1.01-C.**

 

“***Federal Funds Rate***” means, for anyday, the rate per annum equal to the weighted average of the rates on overnightFederal funds transactions with members of the Federal Reserve System arrangedby Federal funds brokers on such day, as published by the Federal Reserve Bankof New York on the Business Day next succeeding such day; *provided*that:  (a) if such day is not aBusiness Day, then the 

 

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FederalFunds Rate for such day shall be such rate on such transactions on the nextpreceding Business Day as so published on the next succeeding Business Day; and(b) if no such rate is so published on such next succeeding Business Day,then the Federal Funds Rate for such day shall be the average rate (roundedupward, if necessary, to a whole multiple of one one-hundredth of 1.00%)charged to Wells Fargo on such day on such transactions as determined byAdministrative Agent.

 

“***Fee Letter***” means the letteragreement, dated September 1, 2010, among Borrower, the Arranger and theAdministrative Agent regarding certain fees to be paid by the Borrower to theArranger, Administrative Agent and L/C Issuer.

 

“***Fiscal Period***” means, as of any dateof determination with respect to Borrower or any Subsidiary thereof, eachfiscal quarter occurring during each of Borrower’s fiscal years.

 

“***Floorplan Availability***” means, atany time, the lesser of (a) the Aggregate Floorplan Commitments at suchtime or (b) the Floorplan Borrowing Base at such time.

 

“***Floorplan Availability Period***” meansthe period from the Closing Date to the Floorplan Maturity Date.

 

“***Floorplan Borrowing***” means aborrowing consisting of simultaneous Floorplan Loans of the same Type and, inthe case of Eurodollar Rate Loans, having the same Interest Period made by eachFloorplan Lender pursuant to **Section 2.01(b)**.

 

“***Floorplan******BorrowingBase***” means as of any date of calculation, an amount, as setforth on the most current Borrowing Base Certificate delivered to theAdministrative Agent, equal to the sum of:

 

(a)                                  90% of the netbook value of Eligible New Equipment Inventory; *plus*

 

(b)                                 85% of the netbook value of Eligible Used Equipment Inventory; *minus*

 

(c)                                  the FloorplanBorrowing Base Reserve.

 

TheBorrower, Administrative Agent and the Lenders acknowledge and agree that(i) the advance rates set forth in this definition are solely to establishthe parameters for Availability, and (ii) this definition does notconstitute nor shall it be deemed to constitute an express or impliedrepresentation or determination by Lenders that the recovery in a forced liquidationscenario would be equal to the advance rates established herein.

 

“***FloorplanBorrowing Base Reserve***” means, as of any date of determination,such amounts (expressed as either a specified amount or as a percentage of aspecified category or item) as the Administrative Agent may from time to timeestablish and adjust in reducing Floorplan Availability acting in its PermittedDiscretion (a) to the extent to reasonably reflect events, conditions,contingencies or risks that materially adversely affect (i) the value ofthe Collateral consisting of that which is taken into account in determiningthe Floorplan Borrowing Base, or (ii) the security interests and otherrights of the Administrative Agent or Lenders in such Collateral (including theenforceability, perfection and priority thereof), or (b) to the extent toreasonably reflect any collateral report or financial information

 

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furnished by or on behalf of the Borrower to theLenders that is or was incomplete, inaccurate or misleading in any materialrespect that affects such Collateral’s value that has not been cured after 10days prior written notice thereof to the Borrower, or (c) in respect ofany Default or an Event of Default during the continuation thereof; providedthat (x) any such required reserves shall continue only for so long as theevents, conditions, contingencies or risks giving rise thereto continue, (y) theAdministrative Agent shall give Borrower the lesser of 45 days notice (or if 45days notice would cause such reserve not to be reflected on the secondBorrowing Base Certificate required to be delivered after the date thereof, thenumber of days which would cause such reserve to be so reflected) of anyincrease in any such reserves under clause (a)(i), and (z) in the case ofreserves required under clause (a)(i), upon delivery of notice to Borrower, asprovided above, the Administrative Agent shall be available to discuss theproposed reserve, and Borrower may take such action as may be required so thatthe event, condition or matter that is the basis for such reserve no longerexists in a manner and to the extent reasonably satisfactory to theAdministrative Agent in the exercise of its Permitted Discretion.

 

“***Floorplan Commitment***” means, as toeach Floorplan Lender at any time any determination thereof is to be made, itsobligation to do the following pursuant to the terms hereof (a) makeFloorplan Loans to Borrower; and (b) purchase participations in Swing LineLoans; all in an aggregate principal amount at any one time outstanding not toexceed the amount set forth opposite such Lender’s name on **Schedule 2.01**or in the Assignment and Assumption pursuant to which such Lender became aparty hereto, as applicable, as such amount may be adjusted from time to timein accordance with this Agreement.

 

“***Floorplan Lender***” means,collectively, (a) initially, each Lender designated on **Schedule 2.01****asa “Floorplan Lender” and (b) each Lender that assumes a FloorplanCommitment pursuant to an Assignment and Assumption or pursuant to theapplicable Additional Commitment Documentation or which otherwise holds aFloorplan Commitment, a Floorplan Loan or a risk participation in a Swing LineLoan.

 

“***Floorplan Loan***” has the meaningascribed thereto in **Section 2.01(b)**.

 

“***Floorplan Maturity Date***” means theearliest of:  (a) October 31,2014, or if applicable, any extension thereof pursuant to **Section 2.16**;(b) the date of the termination of the Aggregate Floorplan Commitmentspursuant to **Section 2.06**; and (c) thedate of the termination of the Aggregate Floorplan Commitments.

 

“***Floorplan Percentage Share***” means asto any Floorplan Lender at any time, the percentage (expressed as a decimalcarried out to the ninth decimal place) of the Aggregate Floorplan Commitmentsrepresented by such Lender’s Floorplan Commitment at such time; *provided* that, if the commitment of each Floorplan Lender tomake Floorplan Loans have been terminated pursuant to **Section 8.02**or if the Aggregate Floorplan Commitments have expired, then the FloorplanPercentage Share of each Floorplan Lender shall be determined based upon suchLender’s Floorplan Percentage Share most recently in effect, giving effect toany subsequent assignments.  The initialFloorplan Percentage Share of each Floorplan Lender is set forth opposite thename of such Lender on **Schedule 2.01**or in the Assignment and Assumption or the Additional Commitment Documentationpursuant to which such Lender became a party hereto, as applicable.

 

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“***Foreign Pledge Agreement***” means, apledge agreement, in form and substance satisfactory to the AdministrativeAgent, pursuant to which a Loan Party grants a security interest to theAdministrative Agent, for the ratable benefit of the Secured Parties, in 100%of the non-voting and 65% of the voting Equity Interests in a first tierForeign Subsidiary, which pledge agreement is governed by the laws of thejurisdiction of organization of such Material First Tier Foreign Subsidiary.

 

“***Foreign Subsidiary***” means anySubsidiary of the Borrower that is not a Domestic Subsidiary.

 

“***FRB***” means the Board of Governors ofthe Federal Reserve System of the United States.

 

“***GAAP***” means generally acceptedaccounting principles in the United States set forth in the opinions andpronouncements of the Accounting Principles Board and the American Institute ofCertified Public Accountants and statements and pronouncements of the FinancialAccounting Standards Board or such other principles as may be approved by asignificant segment of the accounting profession in the United States, that areapplicable to the circumstances as of the date of determination, consistentlyapplied.

 

“***Governmental Authority***” means thegovernment of the United States or any other nation, or of any politicalsubdivision thereof, whether state or local, and any agency, authority,instrumentality, regulatory body, court, central bank or other entityexercising executive, legislative, judicial, taxing, regulatory oradministrative powers or functions of or pertaining to government (includingany supra-national bodies such as the European Union or the European CentralBank).

 

“***Guarantee***” means, as to any Person,any obligation, contingent or otherwise, of such Person guaranteeing or havingthe economic effect of guaranteeing any Debt or other obligation payable orperformable by another Person (the “***primary obligor***”)in any manner, whether directly or indirectly, and including any obligation ofsuch Person, direct or indirect: (a) to purchase or pay (or advance or supply funds for the purchaseor payment of) such Debt or other obligation; (b) to purchase or leaseproperty, securities or services for the purpose of assuring the obligee inrespect of such Debt or other obligation of the payment or performance of suchDebt or other obligation; (c) to maintain working capital, equity capitalor any other financial statement condition or liquidity or level of income orcash flow of the primary obligor so as to enable the primary obligor to pay suchDebt or other obligation; or (d) entered into for the purpose of assuringin any other manner the obligee in respect of such Debt or other obligation ofthe payment or performance thereof or to protect such obligee against loss inrespect thereof (in whole or in part). The amount of any Guarantee shall be deemed to be an amount equal to thestated or determinable amount of the related primary obligation, or portionthereof, in respect of which such Guarantee is made or, if not stated ordeterminable, the maximum reasonably anticipated liability in respect thereofas determined by the guaranteeing Person in good faith.  The term “***Guarantee***”as a verb has a corresponding meaning.

 

“***Guaranteed Obligations***” has themeaning ascribed thereto in **Section 10.14(a)**.

 

“***Guarantors***” means,collectively:  (a) each SubsidiaryGuarantor (including each Subsidiary of Borrower who executes a JoinderAgreement following the date hereof); and (b) each other Person who,following the date hereof, is required pursuant to the terms hereof to be aguarantor of the Obligations.

 

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“***Guaranty***” means any guaranty, inform and substance acceptable to Administrative Agent, made by a Guarantor forthe benefit of Administrative Agent and Lending Parties and includes theguaranty set forth in **Section 10.14**.

 

“***Hazardous Materials***” means allexplosive or radioactive substances or wastes and all hazardous or toxicsubstances, wastes or other pollutants, including petroleum or petroleumdistillates, asbestos or asbestos-containing materials, polychlorinatedbiphenyls, radon gas, infectious or medical wastes and all other substances orwastes of any nature regulated pursuant to any Environmental Law.

 

“***Honor Date***” means, with respect toany Letter of Credit, the date of any payment by L/C Issuer thereunder.

 

“***Indemnified Taxes***” means Taxes otherthan Excluded Taxes.

 

“***Indemnitees***” means, collectively,Administrative Agent (and any sub-agent thereof), each Lending Party and eachRelated Party of any of the foregoing Persons.

 

“***Intercreditor Agreement***” means anintercreditor agreement executed by a creditor in favor of and acceptable tothe Administrative Agent and Lenders and acknowledged by the Borrower.

 

“***Interest Payment Date***” means:  (a) with respect to:  (i) a Eurodollar Rate Loan, the last dayof each Interest Period applicable thereto and, in the case of a EurodollarRate Loan with an Interest Period of more than three months’ duration, each dayprior to the last day of such Interest Period that occurs at intervals of threemonths’ duration after the first day of such Interest Period, (ii) a BaseRate Loan (other than a Swing Line Loan), the last Business Day of eachcalendar month; and (iii) a Swing Line Loan, the last Business Day of eachcalendar month; and (b) (i) in the case of Working Capital Loans, theWorking Capital Maturity Date and (ii) in the case of Floorplan Loans andSwing Line Loans, the Floorplan Maturity Date.

 

“***Interest Period***” means, as to eachEurodollar Rate Loan, the period commencing on the date such Eurodollar RateLoan is disbursed or converted to or continued as a Eurodollar Rate Loan andending on the date one, two, three or six months thereafter, as selected byBorrower in its related Loan Notice; *provided*that:  (a) any Interest Period thatwould otherwise end on a day that is not a Business Day shall be extended tothe next succeeding Business Day unless such Business Day falls in anothercalendar month, in which case such Interest Period shall end on the nextpreceding Business Day; (b) any Interest Period that begins on the lastBusiness Day of a calendar month (or on a day for which there is no numericallycorresponding day in the calendar month at the end of such Interest Period)shall end on the last Business Day of the calendar month at the end of suchInterest Period; (c) no Interest Period for:  (i) any Working Capital Loan shallextend beyond the Working Capital Maturity Date; and (ii) any FloorplanLoan shall extend beyond the Floorplan Maturity Date.

 

“***Investment***” means, as to any Person,any direct or indirect acquisition or investment by such Person in anotherPerson, whether by means of: (a) the purchase or other acquisition of Equity Interests or othersecurities of another Person; (b) a loan, advance or capital contributionto, Guarantee or assumption of debt of, or purchase or other acquisition of anyother debt or equity participation or interest in, another Person, includingany partnership or limited liability company interest in such other

 

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Personand any arrangement pursuant to which the investor Guarantees Debt of suchother Person; or (c) the purchase or other acquisition (in one transactionor a series of transactions) of assets of another Person that constitute abusiness unit.  For purposes of covenantcompliance, the amount of any Investment shall be the amount actually invested,without adjustment for subsequent increases or decreases in the value of such Investment.

 

“***IRS***” means the United StatesInternal Revenue Service.

 

“***ISP***” means, with respect to anyLetter of Credit, the “International Standby Practices 1998” published by theInstitute of International Banking Law & Practice (or, if the L/CIssuer shall agree at the time of issuance, such later version thereof as maybe in effect at the time of issuance).

 

“***Issuer Documents***” means, withrespect to any Letter of Credit, the L/C Application relating thereto andany other document entered into by L/C Issuer and Borrower or in favor ofL/C Issuer and relating to any such Letter of Credit.

 

“***Joinder Agreement***” means anagreement entered into by a Subsidiary of Borrower following the date hereof tojoin in the Guaranty set forth in **Section 10.14**,in substantially the form of **Exhibit C**or any other form approved by Administrative Agent.

 

“***Laws***” means, collectively, allinternational, foreign, Federal, state and local statutes, treaties, rules,guidelines, regulations, ordinances, codes and administrative or judicialprecedents or authorities, including the interpretation or administrationthereof by any Governmental Authority charged with the enforcement,interpretation or administration thereof, and all applicable administrativeorders, directed duties, requests, licenses, authorizations and permits of, andagreements with, any Governmental Authority, in each case whether or not havingthe force of law.

 

“***L/C Advance***” means a WorkingCapital Lender’s funding of its participation in an L/C Borrowing inaccordance with its Working Capital Percentage Share.

 

“***L/C Application***” means anapplication and agreement for the issuance or amendment of a Letter of Creditin the form from time to time in use by L/C Issuer.

 

“***L/C Borrowing***” means anextension of credit resulting from a drawing under any Letter of Credit thathas not been reimbursed on the date when made or refinanced as a WorkingCapital Borrowing.

 

“***L/C Credit Extension***” means,with respect to any Letter of Credit, the issuance thereof, the extension ofthe expiry date thereof or the increase of the amount thereof.

 

“***L/C Expiration Date***” means theday that is ten days prior to the Working Capital Maturity Date then in effect(or, if such day is not a Business Day, the next preceding Business Day).

 

“***L/C Fee***” has the meaningascribed thereto in **Section 2.03(i)**.

 

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“***L/C Issuer***” means, at any time,the issuer of Letters of Credit hereunder (which, initially, shall be WellsFargo).

 

“***L/C Obligations***” means, at anytime, the sum of:  (a) the aggregateamount available to be drawn under all outstanding Letters of Credit; *plus* (b) the aggregate of all Unreimbursed Amounts,including all L/C Borrowings.  Forpurposes of computing the amount available to be drawn under any Letter ofCredit, the amount of such Letter of Credit shall be determined in accordancewith **Section 1.02(i)**.  For all purposes of this Agreement, if at anytime of determination a Letter of Credit has expired by its terms but anyamount may still be drawn thereunder by reason of the operation ofRule 3.14 of the ISP, such Letter of Credit shall be deemed to be “outstanding”in an amount equal to the amount remaining available to be drawn.

 

“***L/C Sublimit***” means an amountequal to $5,000,000.  TheL/C Sublimit is part of, and not in addition to, the Aggregate WorkingCapital Commitments.

 

“***Lender***” means, as applicable, aWorking Capital Lender or a Floorplan Lender.

 

“***Lending Office***” means, as to anyLender, the office or offices of such Lender described as such in such Lender’sAdministrative Detail Form, or such other office or offices as a Lender mayfrom time to time notify Borrower, Administrative Agent and Lending Parties.

 

“***Lending Parties***” means,collectively, Lenders, Swing Line Lender and L/C Issuer.

 

“***Letter of Credit***” means any standbyletter of credit issued hereunder and shall include the Existing Letters ofCredit.

 

“***Lien***” means any mortgage, pledge,hypothecation, assignment, deposit arrangement, encumbrance, lien (statutory orother), charge, or preference, priority or other security interest orpreferential arrangement in the nature of a security interest of any kind ornature whatsoever (including any conditional sale or other title retentionagreement and any easement, right of way or other encumbrance on title to realproperty).

 

“***Loan***” means any Working CapitalLoan, Floorplan Loan or Swing Line Loan.

 

“***Loan Documents***” means, collectively,this Agreement, each Note, each Issuer Document, each Collateral Document, theTreasury Management Service Documents and the Fee Letter.

 

“***Loan Notice***” means a notice,pursuant to **Section 2.02(a)**, of:  (a) a borrowing of Loans; (b) aconversion of Loans from one Type to the other; or (c) a continuation ofEurodollar Rate Loans; which, if in writing, shall be substantially in the formof **Exhibit D**.

 

“***Loan Parties***” means, collectively,Borrower and all Guarantors.

 

“***Material Adverse Effect***” means anyof the following:  (a) a materialadverse change in, or material adverse effect upon, the business, condition(financial or otherwise), operations, performance, properties or prospects ofeither:  (i) Borrower; or(ii) the Loan Parties taken as a whole; (b) a material 

 

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impairmentof the ability of either Borrower or the Loan Parties, taken as a whole, toperform their respective obligations under the Loan Documents; or (c) amaterial adverse effect upon: (i) the legality, validity, binding effect or enforceability of anyLoan Document to which any Loan Party is a party against either:  (A) Borrower; or (B) the LoanParties taken as a whole; or (ii) the rights and remedies ofAdministrative Agent or any Lending Party under or in respect of any LoanDocument.

 

*“**Maximum Rate***” means, at anytime, the maximum rate of non-usurious interest permitted by applicable Law.

 

“***Multiemployer Plan***” means anyemployee benefit plan of the type described in Section 4001(a)(3) ofERISA to which Borrower or any ERISA Affiliate makes or is obligated to makecontributions, or during the preceding five plan years, has made or beenobligated to make contributions.

 

“***Net Proceeds***” means, in respect ofany Disposition or Event of Loss, the proceeds in cash or Cash Equivalentsreceived by Borrower or any Subsidiary thereof with respect to or on account ofsuch Disposition or Event of Loss, net of: (a) in the case of a Disposition, the direct costs of suchDisposition then payable by the recipient of such proceeds, or, in the case ofan Event of Loss, the direct costs of collecting insurance or other proceeds,in each case excluding amounts payable to Borrower or any Affiliate ofBorrower; (b) sales, use and other taxes paid or payable by such recipientas a result thereof; and (c) amounts required to be applied to repayprincipal, interest and prepayment premiums and penalties on Debt secured by aPermitted Lien on the properties subject to such Disposition.

 

“***Note***” means any promissory noteexecuted by Borrower in favor of a Lender pursuant to **Section 2.11**in substantially the form of **Exhibit E**.

 

“***Obligations***” means all advances, debts,liabilities, obligations, covenants and duties, including treasury managementobligations, of any Loan Party to Administrative Agent or any Lending Partyunder or in respect of any Loan Document or otherwise, whether with respect toany Loan or Letter of Credit, whether direct or indirect (including thoseacquired by assumption), absolute or contingent, due or to become due, nowexisting or hereafter arising and including interest and fees that accrue afterthe commencement by or against any Loan Party or any Affiliate thereof of anyproceeding under any Bankruptcy Law naming such Person as the debtor in suchproceeding, regardless of whether such interest and fees are allowed claims insuch proceeding.

 

“***Organizational Documents***”means:  (a) with respect to anycorporation, the certificate or articles of incorporation and the bylaws (orequivalent or comparable constitutive documents with respect to any non-U.S.jurisdiction) of such Person; (b) with respect to any limited liabilitycompany, the certificate or articles of formation or organization and operatingagreement of such Person; and (c) with respect to any partnership, jointventure, trust or other form of business entity, the partnership, joint ventureor other applicable agreement of formation or organization of such Person andany agreement, instrument, filing or notice with respect thereto filed inconnection with such Person’s formation or organization with the applicableGovernmental Authority in the jurisdiction of its formation or organizationand, if applicable, any certificate or articles of formation or organization ofsuch Person.

 

“***Other Taxes***” means all present orfuture stamp, intangible or documentary taxes or any other excise or propertytaxes, charges or similar levies arising from any payment made hereunder orunder any 

 

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otherLoan Document or from the execution, delivery or enforcement of, or otherwisewith respect to, this Agreement or any other Loan Document.

 

“***Outstanding Amount***” means:  (a) with respect to any Loans on anydate, the aggregate outstanding principal amount thereof after giving effect toany Borrowings and prepayments or repayments of such Loans, as the case may be,occurring on such date; and (b) with respect to any L/C Obligationson any date, the amount of such L/C Obligations on such date after givingeffect to any L/C Credit Extension occurring on such date and any otherchanges in the aggregate amount of the L/C Obligations as of such date,including as a result of any reimbursements by Borrower of UnreimbursedAmounts.

 

“***Participant***” means any Person otherthan (i) a natural person, (ii) Borrower or any of Borrower’sAffiliates or (iii) any competitor of Borrower or any of its Subsidiariesor any of such Person’s Affiliates.

 

“***PBGC***” means the Pension BenefitGuaranty Corporation.

 

“***Pension Plan***” means any “employeepension benefit plan” (as that term is defined in Section 3(2) ofERISA), other than a Multiemployer Plan, that is subject to Title IV ofERISA and is sponsored or maintained by Borrower or any ERISA Affiliate or towhich Borrower or any ERISA Affiliate contributes or has an obligation tocontribute, or in the case of a multiple employer or other plan described inSection 4064(a) of ERISA, has made contributions at any time duringthe immediately preceding five plan years.

 

***“Percentage Share***” means, as toany Lender, its Working Capital Percentage Share or Floorplan Percentage Share,as applicable.

 

“***Perfection Certificate***” shall meanthe Perfection Certificate substantially in the form of **Exhibit A**to the Security Agreement.

 

“***Permitted Acquisition***” means anyAcquisition so long as:  (a) suchAcquisition is undertaken in accordance with all applicable Laws; (b) noDefault exists immediately prior to, or would exist immediately after, givingeffect to such Acquisition; (c) in connection with such Acquisition,Borrower has obtained, effective written consent of the board of directors orequivalent governing body of the Person or business so acquired (the “***Acquiree***”) if required underapplicable corporate/company law or the Borrower’s Organizational Documents;(d) the Acquiree (or the business unit or division of the Acquiree to beacquired) shall be engaged principally in the same business as Borrower or theSubsidiary of Borrower proposing to effect such Acquisition or a RelatedBusiness; (e) the aggregate cash and non-cash consideration to be paid byBorrower and any Subsidiary thereof (whether in one or a series oftransactions) for such Acquisition does not exceed (i) 10% of the Borrower’sConsolidated Total Assets for any one Acquisition or (ii) 20% of theBorrower’s Consolidated Total Assets for all Acquisitions in each fiscal year;(f) upon the closing of such Acquisition in the case of a PermittedMaterial Acquisition, a Responsible Officer of Borrower delivers toAdministrative Agent and Lenders: (i) a certificate to the effect that each of clauses (a) through(e), inclusive, of this definition has been satisfied; (ii) a copy of theresolutions or consent required to be obtained by (c); (iii) a certificatedetailing pro forma compliance with all financial covenants set forth in **Section 6.12**for each of the Fiscal Periods whichremain in such 

 

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fiscalyear following the consummation of such Acquisition; (iv) the consolidatedearnings before interest, taxes, depreciation and amortization of the LoanParties, including the Acquiree (or the business unit or division of theAcquiree to be acquired), must be positive on a *pro forma*basis for each of the Fiscal Periods which remain in such fiscal year followingthe consummation of such Acquisition; and (v) a three year financialforecast for the Acquiree; and (g) within 30 days after the closing ofsuch Acquisition in the case of any other Acquisition that is not a PermittedMaterial Acquisition, a Responsible Officer of Borrower delivers toAdministrative Agent and Lenders: (i) a certificate to the effect thateach of clauses (a) through (e), inclusive, of this definition has beensatisfied; and (ii) a copy of the resolutions or consent required to beobtained by (c).

 

“***Permitted Debt***” mean any Debtpermitted by **Section 7.03**.

 

“***Permitted Discretion***” shall mean theAdministrative Agent’s commercially reasonable judgment, exercised in goodfaith in accordance with customary business practices for asset-basedlending transactions; provided that any standard of eligibility orreserve established or modified by the Administrative Agent shall have areasonable relationship to circumstances, conditions, events or contingencieswhich are the basis for such standard of eligibility or reserve, as reasonablydetermined, without duplication and for so long as they continue, by theAdministrative Agent in good faith.

 

“***Permitted Floorplan Debt***” means thefloorplan Debt permitted pursuant to **Section 7.03(i)**.

 

“***Permitted Liens***” has the meaningascribed thereto in **Section 7.01**.

 

“***Permitted Material Acquisition***”means an Acquisition that is otherwise a Permitted Acquisition under clauses (a) through(f) of the definition thereof and which the aggregate cash and non-cashconsideration to be paid by Borrower and any Subsidiary thereof (whether in oneor a series of transactions) for such Acquisition exceeds 5% of the Borrower’sConsolidated Total Assets.

 

*“**Permitted Shortline Debt**”*means**floorplan facilities with short line manufacturers, orfacilities arranged by short line manufacturers for their products and serviceswith third party financing sources,  inthe ordinary course of business.

 

“***Permitted Subordinated Debt***” meansany Debt that has been subordinated to the Obligations on terms and conditions,and pursuant to documents, satisfactory to Administrative Agent and RequiredLenders.

 

“***Person***” means any natural person,corporation, limited liability company, trust, joint venture, association,company, partnership, Governmental Authority or other entity.

 

“***Plan***” means any “employee benefitplan” (as such term is defined in Section 3(3) of ERISA) establishedby Borrower or, with respect to any such plan that is subject toSection 412 of the Code or Title IV of ERISA, any ERISA Affiliate.

 

“***Register***” means a register for therecordation of the names and addresses of Lenders and, as applicable, theCommitments of, and Outstanding Amounts of the Loans and L/C Obligationsowing to, each Lender pursuant to the terms hereof from time to time.

 

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“***Related Business***” shall mean anybusiness that is the same, similar or otherwise reasonably related, ancillaryor complementary to the businesses of the Borrower and its Subsidiaries on theClosing Date.

 

“***Related Parties***” means, with respectto any Person, such Person’s Affiliates and the partners, members, directors,officers, employees, agents and advisors of such Person and of such Person’sAffiliates, and specifically includes, in the case of Wells Fargo, Wells Fargoin its capacity as Administrative Agent, Arranger, Swing Line Lender andL/C Issuer.

 

“***Replacement Lender***” has the meaningascribed thereto in **Section 3.07(a)(iii)**.

 

“***Reportable Event***” means any of theevents set forth in Section 4043(c) of ERISA, other than events forwhich the thirty-day notice period has been waived.

 

“***Request for Credit Extension***”means:  (a) with respect to aBorrowing, conversion or continuation of Working Capital Loans or FloorplanLoans, a Loan Notice; (b) with respect to an L/C Credit Extension, anL/C Application; and (c) with respect to a Swing Line Loan, a SwingLine Loan Notice.

 

“***Required Floorplan Lenders***” means,at any time:  (a) three or moreFloorplan Lenders holding in excess of 50.00% of the then Total FloorplanOutstandings; or (b) if there are no Total Floorplan Outstandings, threeor more Floorplan Lenders holding in excess of 50.00% of the AggregateFloorplan Commitments; *provided* thatthe Floorplan Commitment of, and the portion of the Total FloorplanOutstandings held or deemed held by, any Defaulting Lender shall be excludedfor purposes of making a determination of Required Floorplan Lenders. *provided further*, at any time there is only one FloorplanLender, “*Required Floorplan Lenders*” shall meanthe sole Floorplan Lender.

 

“***Required Lenders***” means:  (a) at any time that Loans areoutstanding and the Aggregate Working Capital Commitments and AggregateFloorplan Commitments are in effect, three or more Lenders holding in excess of50.00% of the sum of:  (i) theAggregate Working Capital Commitments; *plus*(ii) the Aggregate Floorplan Commitments; (b) at any time that Loansare outstanding but the Aggregate Working Capital Commitments have beenterminated, three or more Lenders holding in excess of 50.00% of the aggregateOutstanding Amount of the Loans; (c) at any time that Loans areoutstanding but the Aggregate Floorplan Commitments have been terminated, threeor more Lenders holding in excess of 50.00% of the aggregate Outstanding Amountof the Loans; (d) at any time on or prior to the Closing Date that noLoans are outstanding, three or more Lenders holding in excess of 50.00% of theAggregate Commitments; and (e) at any time following the Closing Date thatno Loans are outstanding, three or more Lenders holding in excess of 50.00% ofthe Aggregate Commitments; *provided* thatthe Working Capital Commitment and/or Floorplan Commitment of, and the portionof the Total Outstandings held or deemed held by, any Defaulting Lender shallbe excluded for purposes of making a determination of Required Lenders.

 

“***Required Working Capital Lenders***”means, at any time:  (a) three ormore Working Capital Lenders holding in excess of 50.00% of the then TotalWorking Capital Outstandings; or (b) if there are no Total Working CapitalOutstandings, three or more Working Capital Lenders holding in excess of 50.00%of the Aggregate Working Capital Commitments; *provided*that the Working Capital 

 

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Commitmentof, and the portion of the Total Working Capital Outstandings held or deemedheld by, any Defaulting Lender shall be excluded for purposes of making adetermination of Required Working Capital Lenders.

 

“***Responsible Officer***” means:  (a) with respect to the Borrower inconnection with any Request for Credit Extension, any Compliance Certificate orany other certificate or notice pertaining to any financial informationrequired to be delivery by Borrower hereunder, the chief financial officer,treasurer or controller of Borrower; and (b) otherwise, with respect to Borroweror any other Loan Party, the chief executive officer, president, chieffinancial officer, vice president of finance, treasurer or controller of suchPerson.

 

“***Restricted Payment***” means, as to anyPerson, (a) any dividend or other distribution by such Person (whether incash, securities or other property) with respect to any Equity Interests ofsuch Person, (b) any payment (whether in cash, securities or otherproperty), including any sinking fund or similar deposit, on account of thepurchase, redemption, retirement, acquisition, cancellation or termination ofany such Equity Interest, (c) any payment of principal or interest or anypurchase, redemption, retirement, acquisition or defeasance with respect to anyDebt of such Person, which is subordinated to the payment of the Obligationpursuant to a Subordination Agreement acceptable to the Administrative Agent,in violation of any subordination provisions applicable thereto (it beingacknowledged that payments that are not restricted by the subordination provisionsapplicable thereto are not Restricted Payments), (d) the acquisition forvalue by such Person of any Equity Interests issued by such Person or any otherPerson that Controls such Person and (e) with respect to clauses (a) through(d), any transaction that has a substantially similar effect.

 

“***Secured Parties***” shall have themeaning assigned to such term in any applicable Collateral Document.

 

“***Security Documents***” means,collectively:  (a) the SecurityAgreement, dated as of the Closing Date, executed by Borrower and Guarantors infavor of Administrative Agent, substantially in the form of **Exhibit G**; (b) each deposit account controlagreement or securities account control agreement, each in form and substancesatisfactory to the Administrative Agent; (c) with respect to each ForeignSubsidiary of a Loan Party, a Foreign Pledge Agreement, (d) eachintellectual property assignment or security agreement, each in form andsubstance satisfactory to the Administrative Agent; and (e) any similardocument executed thereafter pursuant to the terms hereof or otherwise inconnection herewith after the Closing Date.

 

“***Solvent***” means, as to any Person atany time, that:  (a) the fair valueof the property of such Person on a going concern basis is greater than theamount of such Person’s liabilities (including contingent liabilities), as suchvalue is established and such liabilities are evaluated for purposes ofSection 101(32) of the Bankruptcy Code and, in the alternative, forpurposes of the Uniform Fraudulent Transfer Act or any similar state statuteapplicable to Borrower or any Subsidiary thereof; (b) the present fairsalable value of the property of such Person is not less than the amount thatwill be required to pay the probable liability of such Person on its debts asthey become absolute and matured; (c) such Person is able to realize uponits property and pay its debts and other liabilities (including contingentliabilities) as they mature in the normal course of business; (d) suchPerson does not intend to, and does not believe that it will, incur debts orliabilities beyond such Person’s ability to pay as such debts and liabilities

 

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mature;and (e) such Person is not engaged in business or a transaction, and isnot about to engage in business or a transaction, for which such Person’sproperty would constitute unreasonably small capital.

 

“***Specified Lender***” means, at anytime, any Lender:  (a) that hasrequested compensation under **Section 3.04**and has not rescinded such request within five Business Days of the makingthereof; (b) to whom Borrower must pay an additional amount (or on whosebehalf Borrower must pay an additional amount to a Governmental Authority)pursuant to **Section 3.01**; (c) thatgives a notice pursuant to **Section 3.02**;(d) that is a Defaulting Lender; or (e) that is a Lender that may,but does not, provide its consent to any matter as to which Required Lenders,Required Working Capital Lenders or Required Floorplan Lenders, as applicable, maygive and have given their consent pursuant to **Section 10.01**;or (f) that is the sole Lender that may but does not provide its consentto any matter as to which all other Lenders may give and have given theirconsent pursuant to **Section 10.01**.

 

“***Specified Materials***” means,collectively, all materials or information provided by or on behalf of Borroweror any Subsidiary thereof, as well as documents and other written materialsrelating to Borrower, the Loan Parties or any of their respective Subsidiaries orAffiliates or any other materials or matters relating to the Loan Documents(including any amendments or waivers of the terms thereof or supplementsthereto).

 

“***Subordinated Creditor***” means eachPerson now or in the future who agrees to subordinate indebtedness of theBorrower held by that Person to the payment of the Obligations.

 

“***Subordination Agreement***” means asubordination agreement executed by a Subordinated Creditor in favor of andacceptable to the Administrative Agent and Lenders and acknowledged by theBorrower.

 

“***Subsidiary***” of a Person means acorporation, partnership, joint venture, limited liability company or otherbusiness entity of which a majority of the shares of securities or otherinterests having ordinary voting power for the election of directors or othergoverning body (other than securities or interests having such power only byreason of the happening of a contingency) are at the time beneficially owned,or the management of which is otherwise Controlled, directly, or indirectly throughone or more intermediaries, or both, by such Person, provided that Subsidiariesof Borrower shall be limited to such entities whose financial statements areconsolidated with the Borrower’s financial statements in accordance with GAAPor with respect to which more than 50.00% of the Equity Interests therein areowned directly or indirectly by Borrower. Unless otherwise specified, all references herein to a “*Subsidiary*” or to “*Subsidiaries*”shall refer to a Subsidiary or Subsidiaries of Borrower.

 

“***Subsidiary Guarantor***” has themeaning ascribed thereto in **Section 10.14(a)**.

 

“***Subsidiary Guarantor Subordinated Debt***”has the meaning ascribed thereto in **Section 10.14(i)**.

 

“***Subsidiary Guarantor Subordinated Debt Payments***”has the meaning ascribed thereto in **Section 10.14(i)**.

 

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“***Supermajority Floorplan Lenders***”means, at any time:  (a) three ormore Floorplan Lenders holding in excess of 66.67% of the then Total FloorplanOutstandings; or (b) if there are no Total Floorplan Outstandings, threeor more Floorplan Lenders holding in excess of 66.67% of the AggregateFloorplan Commitments; *provided* thatthe Floorplan Commitment of, and the portion of the Total FloorplanOutstandings held or deemed held by, any Defaulting Lender shall be excludedfor purposes of making a determination of Required Floorplan Lenders. *provided further*, at any time there is only one FloorplanLender, “*Required Floorplan Lenders*” shall meanthe sole Floorplan Lender.

 

“***Supermajority Working Capital Lenders***”means, at any time:  (a) three ormore Working Capital Lenders holding in excess of 66.67% of the then TotalWorking Capital Outstandings; or (b) if there are no Total Working CapitalOutstandings, three or more Working Capital Lenders holding in excess of 66.67%of the Aggregate Working Capital Commitments; *provided*that the Working Capital Commitment of, and the portion of the Total WorkingCapital Outstandings held or deemed held by, any Defaulting Lender shall beexcluded for purposes of making a determination of Required Working CapitalLenders.

 

“***Swap Contract***” means:  (a) any and all rate swap transactions,basis swaps, credit derivative transactions, forward rate transactions,commodity swaps, commodity options, forward commodity contracts, equity orequity index swaps or options, bond or bond price or bond index swaps oroptions or forward bond or forward bond price or forward bond indextransactions, interest rate options, forward foreign exchange transactions, captransactions, floor transactions, collar transactions, currency swaptransactions, cross-currency rate swap transactions, currency options, spotcontracts, or any other similar transactions or any combination of any of theforegoing (including any options to enter into any of the foregoing), whetheror not any such transaction is governed by or subject to any master agreement;and (b) any and all transactions of any kind, and the relatedconfirmations, that are subject to the terms and conditions of, or governed by,any form of master agreement published by the International Swaps andDerivatives Association, Inc., any International Foreign Exchange MasterAgreement, or any other master agreement including any such obligations orliabilities under any such master agreement (in each case, together with anyrelated schedules).

 

“***Swap Obligations***” means allliabilities and obligations of any Loan Party to Administrative Agent or anyLending Party under a swap contract applicable to Borrowings advanced under theCredit Agreement.

 

“***Swap Termination Value***” means, inrespect of any one or more Swap Contracts, after taking into account the effectof any legally enforceable netting agreement relating to such SwapContracts:  (a) for any date on orafter the date such Swap Contracts have been closed out and termination value(s) determinedin accordance therewith, such termination value(s); and (b) for any dateprior to the date referenced in clause (a) of this definition, theamount(s) determined as the mark-to-market value(s) for such SwapContracts, as determined based upon one or more mid-market or other readilyavailable quotations provided by any recognized dealer in such Swap Contracts(which may include a Lender or any Affiliate of a Lender).

 

“***Swing Line***” means the revolvingcredit facility made available by Swing Line Lender pursuant to **Section 2.04**.

 

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“***Swing Line Borrowing***” means aborrowing of a Swing Line Loan pursuant to **Section 2.04**.

 

“***Swing Line Lender***” means, at any time,the provider of the Swing Line hereunder (which, initially, shall be WellsFargo).

 

“***Swing Line Loan***” has the meaningascribed thereto in **Section 2.04(a)**.

 

“***Swing Line Loan Notice***” means anotice of a Swing Line Borrowing pursuant to **Section 2.04(b)**,which, if in writing, shall be substantially in the form of **Exhibit F**.

 

“***Swing Line Sublimit***” means an amountequal to the lesser of: (a) $15,000,000; and (b) the Aggregate FloorplanCommitments.  The Swing Line Sublimit isa part of, but is not in addition to, the Aggregate Floorplan Commitments.

 

“***Synthetic Lease Obligation***” meansthe monetary obligation of a Person under either:  (a) a so-called synthetic, off-balancesheet or tax retention lease; or (b) an agreement for the use orpossession of property creating obligations that do not appear on the balancesheet of such Person but which, upon the insolvency or bankruptcy of suchPerson, would be characterized as the indebtedness of such Person (withoutregard to accounting treatment).

 

“***Taxes***” means all present or futuretaxes, levies, imposts, duties, deductions, withholdings, assessments, fees orother charges imposed by any Governmental Authority, including any interest,additions to tax or penalties applicable thereto.

 

“***Threshold Amount***” means $5,000,000.00.

 

“***Total Floorplan Outstandings***” means,at any time, the sum of: (a) Outstanding Amount of all Floorplan Loans; *plus*(b) the Outstanding Amount of all Swing Line Loans.

 

“***Total Outstandings***” means, at anytime, the sum of:  (a) Total WorkingCapital Outstandings; *plus*(b) the Total Floorplan Outstandings.

 

“***Total Working Capital Outstandings***”means, at any time, the sum of: (a) the aggregate Outstanding Amount of all Working Capital Loans; *plus* (b) the Outstanding Amount of allL/C Obligations.

 

“***Transactions***” means on the ClosingDate (i) the execution, delivery and performance by each Loan Party ofeach Loan Document to which it is a party, (ii) the borrowing of the Loansand the issuance of the Letters of Credit, and (iii) the use of the proceedsof the Loans and the Letters of Credit.

 

“***Transportation Solutions***” meansTransportation Solutions LLC, a North Dakota limited liability company.

 

“***Treasury Management Service Documents***”means, at any time, the Master Agreement for Treasury Management Servicesbetween Borrower and Wells Fargo, the related Acceptance of Services, 

 

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ServiceDescriptions, and any other documents or agreements now in effect or hereafterentered into with respect to treasury management services provided to Borrowerby Wells Fargo.

 

“***Type***” means, with respect to anyLoan, its character as a Base Rate Loan or a Eurodollar Rate Loan.

 

“***Uniform Commercial Code***” means theUniform Commercial Code as in effect in any applicable jurisdiction.

 

“***United States***” and “***U.S.***” mean the United States ofAmerica.

 

“***Unreimbursed Amount***” means, withrespect to any Letter of Credit, any amount drawn thereunder that Borrower hasfailed to reimburse to L/C Issuer by 11:00 a.m. on the related HonorDate.

 

“***Wells Fargo***” means WELLS FARGO BANK,NATIONAL ASSOCIATION, a national banking association.

 

“***Withdrawal Liability***” shall meanliability to a Multiemployer Plan as a result of a complete or partialwithdrawal from such Multiemployer Plan, as such terms are defined in Part Iof Subtitle E of Title IV of ERISA.

 

“***Working Capital Availability***” means,at any time, the lesser of (a) the Aggregate Working Capital Commitmentsat such time or (b) the Working Capital Borrowing Base at such time.

 

“***Working Capital Availability Period***”means the period from the Closing Date to the Working Capital Maturity Date.

 

“***Working Capital Borrowing***” means aborrowing consisting of simultaneous Working Capital Loans of the same Typeand, in the case of Eurodollar Rate Loans, having the same Interest Period madeby each Working Capital Lender pursuant to **Section 2.01(a)**.

 

“***Working Capital Borrowing Base***”means as of any date of calculation, an amount, as set forth on the mostcurrent Borrowing Base Certificate delivered to the Administrative Agent, equalto the sum of:

 

(a)                                  80% of EligibleAccounts; *plus*

 

(b)                                 85% of the netbook value of Eligible Rental Equipment; *plus*

 

(c)                                  75% of (i) EligibleParts and Attachments Inventory *minus* (ii) theCNH Parts Reserve; *plus*

 

(d)                                 50% of EligibleWork in Process Inventory; *minus*

 

(e)                                  the WorkingCapital Borrowing Base Reserve.

 

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TheBorrower, Administrative Agent and the Lenders acknowledge and agree that(i) the advance rates set forth in this definition are solely to establishthe parameters for Availability, and (ii) this definition does notconstitute nor shall it be deemed to constitute an express or impliedrepresentation or determination by Lenders that the recovery in a forced liquidationscenario would be equal to the advance rates established herein.

 

“***WorkingCapital Borrowing Base Reserve***” means, as of any date ofdetermination, such amounts (expressed as either a specified amount or as apercentage of a specified category or item) as the Administrative Agent mayfrom time to time establish and adjust in reducing Working Capital Availabilityacting in its Permitted Discretion (a) to the extent to reasonably reflectevents, conditions, contingencies or risks that materially adversely affect (i) thevalue of the Collateral consisting of that which is taken into account indetermining the Working Capital Borrowing Base, or (ii) the securityinterests and other rights of the Administrative Agent or Lenders in suchCollateral (including the enforceability, perfection and priority thereof), or (b) tothe extent to reasonably reflect any collateral report or financial informationfurnished by or on behalf of the Borrower to the Lenders that is or wasincomplete, inaccurate or misleading in any material respect that affects suchCollateral’s value that has not been cured after 10 days prior written noticethereof to the Borrower, or (c) in respect of any Default or an Event ofDefault during the continuation thereof; provided that (x) any suchrequired reserves shall continue only for so long as the events, conditions,contingencies or risks giving rise thereto continue, (y) theAdministrative Agent shall give Borrower the lesser of 45 days notice (or if 45days notice would cause such reserve not to be reflected on the secondBorrowing Base Certificate required to be delivered after the date thereof, thenumber of days which would cause such reserve to be so reflected) of anyincrease in any such reserves under clause (a)(i), and (z) in the case ofreserves required under clause (a)(i), upon delivery of notice to Borrower, asprovided above, the Administrative Agent shall be available to discuss theproposed reserve, and Borrower may take such action as may be required so thatthe event, condition or matter that is the basis for such reserve no longerexists in a manner and to the extent reasonably satisfactory to theAdministrative Agent in the exercise of its Permitted Discretion.

 

“***Working Capital Commitment***” means,as to each Working Capital Lender at any time any determination thereof is tobe made, its obligation to do the following pursuant to the terms hereof:  (a) make Working Capital Loans toBorrower; and (b) purchase participations in L/C Obligations; all inan aggregate principal amount at any one time outstanding not to exceed theamount set forth opposite such Lender’s name on **Schedule 2.01**or in the Assignment and Assumption pursuant to which such Lender became aparty hereto or pursuant to the applicable Additional Commitment Documentation,as applicable, as such amount may be adjusted from time to time in accordancewith this Agreement.

 

“***Working Capital Lender***” means,collectively, (a) initially, each Lender designated on **Schedule 2.01****asa “Working Capital Lender” and (b) each Lender that assumes a WorkingCapital Commitment pursuant to an Assignment and Assumption or pursuant to theapplicable Additional Commitment Documentation or which otherwise holds aWorking Capital Commitment, a Working Capital Loan or a participation in aLetter of Credit or a L/C Borrowing.

 

“***Working Capital Loan***” has themeaning ascribed thereto in **Section 2.01(a)**.

 

“***Working Capital Maturity Date***” meansthe earliest of:  (a) October 31,2014 or if applicable, any extension thereof pursuant to **Section 2.16**;(b) the date of the termination of the Aggregate Working 

 

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CapitalCommitments pursuant to **Section 2.06**;and (c) the date of the termination of the Aggregate Working CapitalCommitments and of the obligation of L/C Issuer to make L/C CreditExtensions pursuant to **Section 8.02**.

 

“***Working Capital Percentage Share***”means as to any Working Capital Lender at any time, the percentage (expressedas a decimal carried out to the ninth decimal place) of the Aggregate WorkingCapital Commitments represented by such Lender’s Working Capital Commitment atsuch time; *provided* that, if the commitment of eachWorking Capital Lender to make Working Capital Loans and the obligation ofL/C Issuer to make L/C Credit Extensions have been terminatedpursuant to **Section 8.02** or if theAggregate Working Capital Commitments have expired, then the Working CapitalPercentage Share of each Working Capital Lender shall be determined based uponsuch Lender’s Working Capital Percentage Share most recently in effect, givingeffect to any subsequent assignments. The initial Working Capital Percentage Share of each Working CapitalLender is set forth opposite the name of such Lender on **Schedule 2.01**or in the Assignment and Assumption or the Additional Commitment Documentationpursuant to which such Lender became a party hereto, as applicable.

 

Whenused in this Agreement, each of the following terms shall have the respectivemeaning ascribed thereto by the Uniform Commercial Code:  “***Account***”, “***Account Debtor***”, “***Certificated Securities***”, “***Chattel Paper***”, “***Commercial Tort Claim***”, “***Deposit Account***”, “***Document***”, “***Equipment***”,“***General Intangibles***”, “***Goods***”, “***Instrument***”,“***Inventory***”, “***InvestmentProperty***”, “***Letter of Credit Right***”,“***Proceeds***”, “***Record***”,“***Secured Party***”, “***Security***”, “***SecurityCertificate***”, and “***Supporting Obligation***”.

 

**SECTION 1.02****                              ****CERTAINRULES OF CONSTRUCTION.**

 

**(a)           General Rules.**

 

(i)            Unless the contextotherwise clearly requires, the meaning of a defined term is applicable equallyto the singular and plural forms thereof.

 

(ii)           The words “***hereof***,” “***herein***,”“***hereunder***” and similar words referto this Agreement as a whole and not to any particular provision of thisAgreement.

 

(iii)          The word “***documents***” includes instruments, documents,agreements, certificates, indentures, notices and other writings, howeverevidenced.

 

(iv)          The words “***include***” and “***including***”are not limiting and the word “or” is not exclusive.

 

(v)           In the computationof periods of time from a specified date to a later specified date, the word “***from***” means “***fromand including***”; the words “***to***” and “***until***” each mean “***to but excluding***” and the word “***through***” means “***toand including***.”

 

(vi)          Unless the contextotherwise clearly requires, the words “***property***,” “***properties***,” “***asset***”and “***assets***” refer to both personalproperty (whether tangible or intangible) and real property.

 

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(vii)         Unless the contextotherwise clearly requires: (A) Article, Section, subsection, clause, Schedule and Exhibit referencesare to this Agreement; (B) references to documents (including thisAgreement) shall be deemed to include all subsequent amendments and othermodifications thereto, but only to the extent such amendments and other modificationsare not prohibited by the terms of any Loan Document; (C) references toany statute or regulation are to be construed as including all statutory andregulatory provisions consolidating, amending, replacing, supplementing orinterpreting the statute or regulation; and (D) references to any Personshall be deemed to include such Person’s successors and assigns.

 

**(b)           Time and Fiscal YearReferences.**  Unless thecontext otherwise clearly requires: (i) all references herein to times of day shall be references toPacific time (daylight or standard, as applicable); and (ii) allreferences herein to “*fiscal year*”refer to the fiscal year of Borrower.

 

**(c)           Captions. **The captions and headings ofthis Agreement are for convenience of reference only and shall not affect theinterpretation of this Agreement.

 

**(d)           Cumulative Nature ofCertain Provisions.**  ThisAgreement and the other Loan Documents may use several different limitations,tests or measurements to regulate the same or similar matters.  All such limitations, tests and measurementsare cumulative and shall be performed in accordance with their respectiveterms.

 

**(e)           No ConstructionAgainst Any Party.**  ThisAgreement and the other Loan Documents are the result of negotiations among,and have been reviewed by counsel to, the Loan Parties, Administrative Agentand Lending Parties and are the products of all parties.  Accordingly, they shall not be construedagainst Administrative Agent or any Lending Party merely because of theinvolvement of any or all of the preceding Persons in their preparation.

 

**(f)            GAAP.**  Unless the context otherwise clearlyrequires, all accounting terms not expressly defined herein shall be construed,and all financial computations required under this Agreement shall be made, inaccordance with GAAP. ** **If at any time any change in GAAPwould affect the computation of any financial ratio or requirement set forth inany Loan Document, and either Borrower or Required Lenders shall so request,Administrative Agent, Lending Parties and Borrower shall negotiate in goodfaith to amend such ratio or requirement to preserve the original intentthereof in light of such change in GAAP (subject to the approval of RequiredLenders); *provided* that, until so amended:  (i) such ratio or requirement shallcontinue to be computed in accordance with GAAP prior to such change therein;and (ii) Borrower shall provide to Administrative Agent and LendingParties financial statements and other documents required under this Agreementor as reasonably requested hereunder setting forth a reconciliation betweencalculations of such ratio or requirement made before and after giving effectto such change in GAAP.

 

**(g)           Rounding.**  Any financial ratios required to bemaintained by the Loan Parties or any of them pursuant to the Loan Documentsshall be calculated by dividing the appropriate component by the othercomponent, carrying the result to one place more than the number of places bywhich such ratio is expressed herein and rounding the result up or down to the nearestnumber using the common — or symmetric arithmetic — method of rounding (inother words, rounding-up if there is no nearest number).

 

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**(h)           Computations ofCertain Financial Covenants.**  For purposes of computing the ConsolidatedFixed Charge Coverage Ratio as of any date, following an Acquisition, Borrowershall compute components of such ratios, financial results (without duplicationof amounts) attributable to any business or assets the subject of any suchAcquisition by Borrower or any Subsidiary thereof effected during such periodin the same manner that Borrower accounts for such Acquisition for purposes ofcomplying with applicable securities laws and regulations (including, ifapplicable, pursuant to SX Rule 3-05).

 

**(i)            Calculations withRespect to Letters of Credit.**  Unless otherwise specified herein the amountof a Letter of Credit at any time shall be deemed to be the stated amount ofsuch Letter of Credit in effect at such time; *provided*that, with respect to any Letter of Credit that, by its terms or the terms ofany Issuer Document related thereto, provides for one or more automaticincreases in the stated amount thereof, the amount of such Letter of Creditshall be deemed to be the maximum stated amount of such Letter of Credit aftergiving effect to all such increases, whether or not such maximum stated amountis in effect at such time.

 

**(j)            Documents Executedby Responsible Officers.**   Anydocument delivered hereunder that is signed by a Responsible Officer of a LoanParty shall be conclusively presumed to have been authorized by all necessarycorporate or other organizational action on the part of such Loan Party andsuch Responsible Officer shall be conclusively presumed to have acted on behalfof such Loan Party.

 

**ARTICLE IICREDIT EXTENSIONS**

 

**SECTION 2.01****                              ****WORKINGCAPITAL LOANS; FLOORPLAN LOANS.**

 

Subjectto the terms and conditions set forth herein:

 

**(a)              Working CapitalLoans.**  Each Working Capital Lenderseverally agrees to make loans (each such loan, a “***WorkingCapital Loan***”) to Borrower, from time to time on any BusinessDay during the Working Capital Availability Period, in an aggregate outstandingamount not to exceed at any time such Lender’s Working Capital Commitment, *provided* that, after giving effect to any Working CapitalBorrowing:  (i) the Total WorkingCapital Outstandings shall not exceed Working Capital Availability; and(ii) the aggregate Outstanding Amount of the Working Capital Loans of anyWorking Capital Lender, *plus* suchLender’s Working Capital Percentage Share *multiplied by*the Outstanding Amount of all L/C Obligations.  Within the limits of each Working CapitalLender’s Working Capital Commitment, and subject to the other terms andconditions hereof, Borrower may borrow under this **Section 2.01**,prepay under **Section 2.05**, and reborrowunder this **Section 2.01**.  Working Capital Loans may be Base Rate Loansor Eurodollar Rate Loans, as further provided herein.

 

**(b)           Floorplan Loans.**  Each Floorplan Lender severally agrees tomake loans (each such loan, a “***Floorplan Loan***”)to Borrower, from time to time on any Business Day during the FloorplanAvailability Period, in an aggregate outstanding amount not to exceed at anytime such Lender’s Floorplan Commitment, *provided* that,after giving effect to any Floorplan Borrowing: (i) the Total Floorplan Outstandings shall not exceed FloorplanAvailability; and (ii) the aggregate Outstanding

 

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Amountof the Floorplan Loans of any Floorplan Lender *plus*such Lender’s Floorplan Percentage Share *multiplied by*the Outstanding Amount of all Swing Line Loans shall not exceed such Lender’sFloorplan Commitment .  Within the limitsof each Floorplan Lender’s Floorplan Commitment, and subject to the other termsand conditions hereof, Borrower may borrow under this **Section 2.01**,prepay under **Section 2.05**, and reborrowunder this **Section 2.01**.  Floorplan Loans may be Base Rate Loans orEurodollar Rate Loans, as further provided herein.

 

**(c)****          ****IntentionallyOmitted.**

 

**(d)****          ****Repaymentof Existing Facilities to be Paid Off.**  Borrower confirms and acknowledges itsobligation to pay all amounts due under the Existing Facilities to be Paid Offand covenants and agrees that the proceeds of the initial Credit Extensionsunder this Agreement shall be used to pay all principal and accrued interest(if any) and all other amounts due under the Existing Facilities to be Paid Offon the Closing Date.

 

**(e)****          ****LoansGenerally.**  Each Loanshall be made as part of a Borrowing consisting of Loans made by the Lendersratably in accordance with their applicable Working Capital Commitments orFloorplan Commitments, *provided*, *however*, that the failure of any Lender to make any Loanshall not in itself relieve any other Lender of its obligation to lendhereunder (it being understood, however, that no Lender shall be responsiblefor the failure of any other Lender to make any Loan required to be made bysuch other Lender).

 

**SECTION 2.02****                              ****PROCEDURESFOR BORROWING.**

 

**(a)****          ****Noticesof Borrowing, Conversion and Continuation.**  Each Borrowing (other than a Swing LineBorrowing), each conversion of Loans from one Type to the other and eachcontinuation of Eurodollar Rate Loans shall be made upon Borrower’s irrevocablenotice to Administrative Agent, which may, subject to the provisions of **Section 10.02(b) **and **Section 10.02(d)**,be given by telephone or by approved electronic communication.  Each such notice must be received byAdministrative Agent not later than 11:00 a.m.:  (i) three Business Days prior to therequested date of any Borrowing (other than a Swing Line Borrowing) of,conversion to or continuation of Eurodollar Rate Loans or of any conversion ofEurodollar Rate Loans to Base Rate Loans; and (ii) one Business Day priorto the requested date of any Borrowing (other than a Swing Line Borrowing) ofBase Rate Loans.  Notwithstandinganything to the contrary contained herein, but subject to the provisions of **Section 10.02(b) **and **Section 10.02(d)**,any telephonic notice or other electronic communication by Borrower pursuant tothis **Section 2.02(a) **may be givenby an individual who has been authorized in writing to do so by an appropriateResponsible Officer of Borrower.  Eachsuch telephonic notice or other electronic communication must be confirmedpromptly by delivery to Administrative Agent of a written Loan Notice,appropriately completed and signed by an appropriate Responsible Officer ofBorrower.

 

**(b)****          ****Amountof Borrowing, Conversion or Continuation.**  Each Borrowing (other than a Swing LineBorrowing) of, conversion to or continuation of Eurodollar Rate Loans shall bein a principal amount of $1,000,000.00 or a whole multiple of $500,000.00 inexcess thereof.  Except as provided in **Sections 2.03(c) **and **Section 2.04(c)**,each Borrowing of or conversion to Base Rate Loans shall be in a principalamount of $500,000.00 or a whole multiple of $100,000.00 in excess thereof.

 

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**(c)****          ****LoanNotices Generally.**  Each LoanNotice (whether telephonic or written) shall specify:  (i) whether Borrower is requesting:  (A) a Working Capital Borrowing or aFloorplan Borrowing; (B) a conversion of outstanding Loans from one Typeto the other; or (C) a continuation of Eurodollar Rate Loans;(ii) the requested date (which shall be a Business Day) of such Borrowing,conversion or continuation, as the case may be; (iii) the principal amountof the Loans to be borrowed, converted or continued; (iv) the Type of Loansto be borrowed or to which existing Loans are to be converted; and (v) ifapplicable, the duration of the Interest Period with respect thereto.  If Borrower fails to specify a Type of Loanin a Loan Notice or if Borrower fails to give a timely notice requesting a conversionor continuation, then the applicable Loan(s) shall be made as, orconverted to, Base Rate Loans using the Daily LIBOR Rate.  Any such automatic conversion to Base RateLoans shall be effective as of the last day of the Interest Period then ineffect with respect to the applicable Eurodollar Rate Loans.  If Borrower requests a Borrowing of,conversion to, or continuation of Eurodollar Rate Loans in any such LoanNotice, but fails to specify an Interest Period, it will be deemed to havespecified an Interest Period of one month.

 

**(d)****          ****ProceduresConcerning the Making of Loans.**  Following receipt of a Loan Notice,Administrative Agent shall promptly notify each applicable Lender of the amountof its Applicable Percentage Share of the requested Borrowings.  If Borrower does not timely provide notice ofa conversion or continuation, then Administrative Agent shall notify eachapplicable Lender of the details of any automatic conversion to Base Rate Loansdescribed in the preceding subsection. Each Lender shall make the amount of its applicable Loan available toAdministrative Agent in immediately available funds at Administrative Agent’sOffice not later than 1:00 p.m. on the Business Day specified in theapplicable Loan Notice.  Uponsatisfaction of the applicable conditions set forth in **Section 4.02**(and, if such Borrowing is the initial Credit Extension, **Section 4.01**),Administrative Agent shall make all funds so received available to Borrower inlike funds as received by Administrative Agent either by:  (i) crediting the account of Borrower onthe books of Wells Fargo with the amount of such funds; or (ii) wiretransfer of such funds, in each case in accordance with instructions providedto (and reasonably acceptable to) Administrative Agent by Borrower; *provided* that, if, on the date the Loan Notice with respectto such Borrowing is given by Borrower, there are L/C Borrowingsoutstanding, then the proceeds of such Borrowing shall be applied, *first*, to the payment in full of any suchL/C Borrowings and, *second*, toBorrower as provided in this subsection.

 

**(e)****          ****SpecialProvisions Applicable to Continuation or Conversions of Eurodollar RateLoans. **Except as otherwise providedherein, a Eurodollar Rate Loan may be continued or converted only on the lastday of an Interest Period for such Eurodollar Rate Loan.  During the existence of an Event ofDefault:  (i) no Loans may berequested as, converted to or continued as Eurodollar Rate Loans without theconsent of Required Lenders; and (ii) Required Working Capital Lenders maydemand that any or all of the then outstanding Working Capital Loans that areEurodollar Rate Loans be converted immediately to Base Rate Loans, whereuponBorrower shall pay any amounts due under **Section 3.05**in accordance with the terms thereof due to any such conversion.

 

**(f)****           ****Notificationof Interest Rate.** Administrative Agent shall promptly notify Borrower and the applicableLenders of the interest rate applicable to any Interest Period for EurodollarRate Loans upon determination of such interest rate.

 

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**(g)****          ****Limitationon Interest Periods.**  After givingeffect to all Borrowings, all conversions of Loans from one Type to the other,and all continuations of Loans as the same Type, there shall not be more thanfive (5) Interest Periods in effect with respect to Working Capital Loansand Floorplan Loans.

 

**SECTION 2.03****                              ****LETTERSOF CREDIT.**

 

**(a)****          ****Letterof Credit Subfacility.** Subject to the terms and conditions set forth herein:

 

(i)            L/C Issueragrees, in reliance upon the agreements of the Working Capital Lenders setforth in this **Section 2.03**:  (A) from time to time on any BusinessDay during the period from the Closing Date until the L/C Expiration Date,to issue Letters of Credit for the account of Borrower, and to amend or extendLetters of Credit previously issued by it, in accordance with subsection(b) of this **Section 2.03**; and (B) tohonor drawings under the Letters of Credit. All Existing Letters of Credit shall be deemed to have been issuedpursuant hereto and, from and after the Closing Date, shall be subject to andgoverned by the terms and conditions hereof.

 

(ii)           Each WorkingCapital Lender severally agrees to participate in Letters of Credit issued byL/C Issuer and any drawings thereunder; *provided*that, after giving effect to any L/C Credit Extension with respect to anyLetter of Credit:  (A) the TotalWorking Capital Outstandings shall not exceed Working Capital Availability;(B) the aggregate Outstanding Amount of the Working Capital Loans of anyWorking Capital Lender, *plus* an amountequal to such Lender’s Working Capital Percentage Share *multipliedby* the Outstanding Amount of all L/C Obligations shall notexceed such Lender’s Working Capital Commitment; or (C) the OutstandingAmount of the L/C Obligations shall not exceed the L/C Sublimit.  Each request by Borrower for the issuance oramendment of a Letter of Credit shall be deemed to be a representation byBorrower that the requested L/C Credit Extension complies with the conditionsset forth in the proviso to the preceding sentence.  Within the foregoing limits, and subject tothe terms and conditions hereof, Borrower’s ability to obtain Letters of Creditshall be fully revolving, and, accordingly, Borrower may, during the foregoingperiod, obtain Letters of Credit to replace Letters of Credit that have expiredor that have been drawn upon and reimbursed.

 

(iii)          Subject to **Section 2.03(b)(iv)**, L/C Issuer shall not issueany Letter of Credit, if:  (A) theexpiry date of such requested Letter of Credit would occur more than twelvemonths after the date of issuance or last extension, unless Required WorkingCapital Lenders shall have approved such expiry date; or (B) the expirydate of such requested Letter of Credit would occur after theL/C Expiration Date, unless all Working Capital Lenders shall haveapproved such expiry date.

 

(iv)          L/C Issuershall not have any obligation to issue a Letter of Credit if:

 

(A)          any order, judgment or decree of any GovernmentalAuthority or arbitrator shall by its terms purport to enjoin or restrainL/C Issuer from issuing such Letter of Credit, or any Law applicable toL/C Issuer or any request or directive (whether or not having the force oflaw) from any Governmental Authority with jurisdiction over L/C Issuershall prohibit, or request that L/C Issuer refrain from, the issuance ofletters of 

 

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creditgenerally or such Letter of Credit in particular or shall impose uponL/C Issuer with respect to such Letter of Credit any restriction, reserveor capital requirement (for which L/C Issuer is not otherwise compensatedhereunder) not in effect on the Closing Date, or shall impose uponL/C Issuer any unreimbursed loss, cost or expense that was not applicableon the Closing Date and which L/C Issuer in good faith deems material toit;

 

(B)           the issuance of such Letter of Credit would violateone or more policies of L/C Issuer;

 

(C)           such Letter of Credit:  (1) is to be denominated in a currencyother than Dollars; or (2) is a commercial letter of credit;

 

(D)          any Working Capital Lender is in default of itsobligation to fund under **Section 2.03(d) **orany Working Capital Lender is at such time a Defaulting Lender hereunder,unless L/C Issuer has entered into satisfactory arrangements with Borroweror such Working Capital Lender to eliminate L/C Issuer’s risk with respectto such Lender; or

 

(E)           unless specifically provided for in this Agreement,such Letter of Credit contains any provisions for automatic reinstatement ofthe stated amount after any drawing thereunder.

 

(v)           L/C Issuershall not amend any Letter of Credit if L/C Issuer would not be permittedat such time to issue such Letter of Credit in its amended form under the termshereof.

 

(vi)          L/C Issuershall not have any obligation to amend any Letter of Credit if:   (A) L/C Issuer would have noobligation at such time to issue such Letter of Credit in its amended formunder the terms hereof; or (B) the beneficiary of such Letter of Creditdoes not accept the proposed amendment to such Letter of Credit.

 

(vii)         L/C Issuershall act on behalf of all Working Capital Lenders with respect to any Lettersof Credit issued by it and the documents associated therewith, andL/C Issuer shall have all of the benefits and immunities:  (A) provided to Administrative Agent in **Article IX** with respect to any acts taken or omissionssuffered by L/C Issuer in connection with Letters of Credit issued by itor proposed to be issued by it and Issuer Documents pertaining to such Lettersof Credit as fully as if the term “***Administrative Agent***”as used in **Article IX** includedL/C Issuer with respect to such acts or omissions; and (B) asadditionally provided herein with respect to L/C Issuer.

 

**(b)****          ****Proceduresfor Issuance and Amendment of Letters of Credit; Automatic Extensions ofLetters of Credit.**

 

(i)            Each Letter ofCredit shall be issued or amended, as the case may be, upon the request ofBorrower delivered to L/C Issuer (with a copy to Administrative Agent) inthe form of an L/C Application, appropriately completed and signed by aResponsible Officer of Borrower.  

 

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SuchL/C Application must be received by L/C Issuer and AdministrativeAgent not later than 11:00 a.m. at least two Business Days (or such laterdate and time as may be agreed to by each of Administrative Agent andL/C Issuer, each in its sole discretion) prior to the proposed issuancedate or date of amendment, as the case may be. In the case of a request for an initial issuance of a Letter of Credit,such L/C Application shall specify in form and detail satisfactory toL/C Issuer:  (A) the proposedissuance date of the requested Letter of Credit (which shall be a BusinessDay); (B) the amount thereof; (C) the expiry date thereof;(D) the name and address of the beneficiary thereof; (E) thedocuments to be presented by such beneficiary in case of any drawingthereunder; (F) the full text of any certificate to be presented by suchbeneficiary in case of any drawing thereunder; and (G) such other mattersas L/C Issuer may require.  In thecase of a request for an amendment of any outstanding Letter of Credit, suchL/C Application shall specify in form and detail satisfactory toL/C Issuer:  (1) the Letter ofCredit to be amended; (2) the proposed date of the amendment thereof(which shall be a Business Day); (3) the nature of the proposed amendment;and (4) such other matters as L/C Issuer may require.  Additionally, Borrower shall furnish toL/C Issuer and Administrative Agent such other documents and informationpertaining to such requested Letter of Credit issuance or amendment, includingany Issuer Documents, as L/C Issuer or Administrative Agent may require.

 

(ii)           Promptly afterreceipt of any L/C Application at the address provided for pursuant to **Section 10.02** for receiving L/C Applications andrelated correspondence, L/C Issuer will confirm with Administrative Agent(by telephone or in writing) that Administrative Agent has received a copy ofsuch L/C Application from Borrower and, if not, L/C Issuer willprovide Administrative Agent with a copy thereof.  Unless L/C Issuer has received writtennotice from any Working Capital Lender, Administrative Agent or any Loan Partyat least one Business Day prior to the requested date of issuance or amendmentof the applicable Letter of Credit that one or more applicable conditions in **Article IV** shall not then be satisfied, then, subjectto the terms and conditions hereof, L/C Issuer shall, on the requesteddate, issue the Letter of Credit requested by Borrower or enter into theapplicable amendment, as the case may be, in each case in accordance withL/C Issuer’s usual and customary business practices.  Immediately upon the issuance of each Letterof Credit, each Working Capital Lender shall be deemed to, and herebyirrevocably and unconditionally agrees to, purchase from L/C Issuer a riskparticipation in such Letter of Credit equal to such Lender’s Working CapitalPercentage Share *multiplied by* the face amount ofsuch Letter of Credit.

 

(iii)          Promptly afterits delivery of any Letter of Credit or any amendment to a Letter of Credit toan advising bank with respect thereto or to the beneficiary thereof,L/C Issuer will also deliver to Borrower and Administrative Agent a trueand complete copy of such Letter of Credit or amendment.

 

(iv)          If Borrowerspecifically requests in any applicable L/C Application, L/C Issuermay issue an Automatic Extension Letter of Credit.  Unless otherwise directed by L/C Issuer,Borrower shall not be required to make a specific request to L/C Issuerfor any such extension.  Once anAutomatic Extension Letter of Credit has been issued, Working Capital Lendersshall be deemed to have authorized (but may not require) L/C Issuer topermit the extension of such Letter of Credit at any time to an expiry date notlater than the L/C Expiration Date; *provided* thatL/C Issuer shall not permit any such extension if:  (A) L/C Issuer has determined thatit

 

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wouldnot be permitted, or would have no obligation, at such time to issue suchLetter of Credit in its revised form (as extended) under the terms hereof (byreason of the provisions of **Section 2.03(a) **orotherwise); or (B) L/C Issuer has received notice (which may be bytelephone or in writing) on or before the day that is thirty days before anydate provided for in such Automatic Extension Letter of Credit as the last dayby which notice of the non-extension thereof must be given: (1) fromAdministrative Agent that Required Working Capital Lenders have elected not topermit such extension; or (2) from Administrative Agent, any WorkingCapital Lender or Borrower that one or more of the applicable conditionsspecified in **Section 4.02** is not thensatisfied, and in each such case directing L/C Issuer not to permit suchextension.

 

**(c)****          ****Drawingsand Reimbursements; Funding of Participations.**

 

(i)            Upon receiptfrom the beneficiary of any Letter of Credit of any drawing under such Letterof Credit (or any notice thereof), L/C Issuer shall notify Borrower andAdministrative Agent thereof.  IfL/C Issuer shall make any payment in respect of a Letter of Credit,Borrower shall reimburse L/C Issuer the amount of such payment not later than1:00 p.m. on the related Honor Date if Borrower shall have received noticeof such payment prior to 11:00 a.m. on the Honor Date, or, if such noticehas not been received by Borrower prior to such time on such Honor Date, thennot later than 10:00 a.m. on the Business Day immediately following the daythat Borrower receives such notice.  IfBorrower fails to so reimburse L/C Issuer, then Administrative Agent shallpromptly notify each Working Capital Lender of the related Honor Date, theUnreimbursed Amount and the amount of such Lender’s Working Capital PercentageShare of such Unreimbursed Amount.  Insuch event, Borrower shall be deemed to have requested a Working CapitalBorrowing consisting of Base Rate Loans to be disbursed on such Honor Date inan amount equal to such Unreimbursed Amount, without regard to the minimum andmultiples specified in **Section 2.02**for the principal amount of Base Rate Loans, but subject to the amount of theunutilized portion of the Aggregate Working Capital Commitments and theconditions set forth in **Section 4.02**(other than the delivery of a Loan Notice). Any notice given by L/C Issuer or Administrative Agent pursuant tothis **Section 2.03(c)(i) **may begiven by telephone if immediately confirmed in writing; *provided*that the lack of such an immediate confirmation shall not affect theconclusiveness or binding effect of such notice.

 

(ii)           Each WorkingCapital Lender shall, upon any notice pursuant to **Section 2.03(c)(i)**,make funds available to Administrative Agent for the account of L/C Issuerat the Administrative Agent’s Office in an amount equal to such Lender’sWorking Capital Percentage Share *multiplied by*the Unreimbursed Amount not later than 1:00 p.m. on the Business Dayspecified in such notice by Administrative Agent, whereupon, subject to theprovisions of **Section 2.03(c)(iii)**, eachWorking Capital Lender that so makes funds available shall be deemed to havemade a Working Capital Loan that is a Base Rate Loan to Borrower in such amounton the Honor Date.  Administrative Agentshall remit the funds so received to L/C Issuer.

 

(iii)          With respect toany Unreimbursed Amount that is not fully refinanced by a Working CapitalBorrowing consisting of Base Rate Loans because the conditions set forth in **Section 4.02** cannot be satisfied or for any otherreason, Borrower shall be deemed to have incurred from L/C Issuer anL/C Borrowing on the Honor Date in the amount of the 

 

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UnreimbursedAmount that is not so refinanced, which L/C Borrowing shall be due andpayable on demand (together with interest) and shall bear interest at theDefault Rate.  In such event, eachWorking Capital Lender’s payment to Administrative Agent for the account ofL/C Issuer pursuant to **Section 2.03(c)(ii) **shallbe deemed payment in respect of its participation in such L/C Borrowingand shall constitute an L/C Advance from such Lender in satisfaction ofits participation obligation under this **Section 2.03**.

 

(iv)          Until eachWorking Capital Lender funds its Working Capital Loan or L/C Advancepursuant to this **Section 2.03(c) **toreimburse L/C Issuer for any amount drawn under any Letter of Credit,interest in respect of the amount of such Lender’s Working Capital PercentageShare of such amount shall be solely for the account of L/C Issuer.

 

(v)           Each WorkingCapital Lender’s obligation to make Working Capital Loans or L/C Advancesto reimburse L/C Issuer for amounts drawn under Letters of Credit, ascontemplated by this **Section 2.03(c)**,shall be absolute and unconditional and shall not be affected by any circumstance,including:  (A) any setoff,counterclaim, recoupment, defense or other right that such Lender may haveagainst L/C Issuer, Borrower or any other Person for any reasonwhatsoever; (B) the occurrence or continuance of a Default; or(C) any other occurrence, event or condition, whether or not similar toany of the foregoing; *provided* thateach Working Capital Lender’s obligation to make Working Capital Loans pursuantto this **Section 2.03(c) **is subject tothe conditions set forth in **Section 4.02**(other than delivery by Borrower of a Loan Notice).  No such making of an L/C Advance shallrelieve or otherwise impair the obligation of Borrower to reimburseL/C Issuer for the amount of any payment made by L/C Issuer under anyLetter of Credit, together with interest as provided herein.

 

(vi)          If any WorkingCapital Lender fails to make available to Administrative Agent for the accountof L/C Issuer any amount required to be paid by such Lender pursuant tothe foregoing provisions of this **Section 2.03(c) **bythe time specified in **Section 2.03(c)(ii)**,L/C Issuer shall be entitled to recover from such Lender (acting throughAdministrative Agent), on demand, such amount with interest thereon for theperiod from the date such payment is required to the date on which such paymentis immediately available to L/C Issuer at a rate per annum equal to thegreater of the Federal Funds Rate and a rate determined by L/C Issuer inaccordance with banking industry rules on interbank compensation, *plus* any administrative, processing or similar feescustomarily charged by L/C Issuer in connection with the foregoing.  A certificate of L/C Issuer submitted toany Working Capital Lender (through Administrative Agent) with respect to anyamounts owing under this clause (vi) shall be conclusive absent manifesterror.

 

**(d)****          ****Repaymentof Participations.**

 

(i)            If, at any timeafter L/C Issuer has made a payment under any Letter of Credit and hasreceived from any Working Capital Lender such Lender’s L/C Advance inrespect of such payment in accordance with **Section 2.03(c)**,Administrative Agent receives for the account of L/C Issuer any payment inrespect of the related Unreimbursed Amount or interest thereon (whetherdirectly from Borrower or otherwise, including proceeds of Cash Collateralapplied thereto by Administrative Agent), Administrative Agent will distributeto such Lender an amount 

 

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thatequals its Working Capital Percentage Share thereof (appropriately adjusted, inthe case of interest payments, to reflect the period of time during which suchLender’s L/C Advance was outstanding) in the same funds as those receivedby Administrative Agent.

 

(ii)           If any paymentreceived by Administrative Agent for the account of L/C Issuer pursuant to**Section 2.03(c)(i) **isrequired to be returned under any of the circumstances described in **Section 10.05** (including pursuant to any settlemententered into by L/C Issuer in its discretion), each Working Capital Lendershall pay to Administrative Agent for the account of L/C Issuer an amountequal to its Working Capital Percentage Share thereof on the demand ofAdministrative Agent, *plus* interestthereon from the date of such demand to the date such amount is returned bysuch Lender, at a rate per annum equal to the Federal Funds Rate from time totime in effect.  The obligations ofWorking Capital Lenders under this clause shall survive the payment in full ofthe Obligations and the termination of this Agreement.

 

**(e)****          ****ObligationsAbsolute.**  The obligationof Borrower to reimburse L/C Issuer for each drawing under each Letter ofCredit and to repay each L/C Borrowing are absolute, unconditional andirrevocable and shall be paid strictly in accordance with the terms of thisAgreement under all circumstances, including the following:

 

(i)            any lack ofvalidity or enforceability of such Letter of Credit, this Agreement, or anyother Loan Document;

 

(ii)           the existenceof any claim, counterclaim, setoff, defense or other right that Borrower or anyother Loan Party may have at any time against any beneficiary or any transfereeof such Letter of Credit (or any Person for whom any such beneficiary or anysuch transferee may be acting), L/C Issuer or any other Person, whether inconnection with this Agreement, the transactions contemplated hereby or by suchLetter of Credit or any agreement or instrument relating thereto, or anyunrelated transaction;

 

(iii)          any draft,demand, certificate or other document presented under such Letter of Creditproving to be forged, fraudulent, invalid or insufficient in any respect or anystatement therein being untrue or inaccurate in any respect; or any loss ordelay in the transmission or otherwise of any document required in order tomake a drawing under such Letter of Credit;

 

(iv)          any payment byL/C Issuer under such Letter of Credit against presentation of a draft orcertificate that does not strictly comply with the terms of such Letter ofCredit; or any payment made by L/C Issuer under such Letter of Credit toany Person purporting to be a trustee in bankruptcy, debtor-in-possession,assignee for the benefit of creditors, liquidator, receiver or otherrepresentative of or successor to any beneficiary or any transferee of suchLetter of Credit, including any arising in connection with any proceeding underany Bankruptcy Law; or

 

(v)           any othercircumstance or happening whatsoever, whether or not similar to any of theforegoing, including any other circumstance that might otherwise constitute adefense available to, or a discharge of, Borrower or any other Loan Party.

 

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Borrowershall promptly examine a copy of each Letter of Credit and each amendmentthereto that is delivered to it and, in the event of any claim of noncompliancewith Borrower’s instructions or other irregularity, Borrower will immediatelynotify L/C Issuer in writing. Borrower shall be conclusively deemed to have waived any such claimagainst L/C Issuer and its correspondents unless such notice is given asaforesaid.

 

**(f)****           ****Role ofL/C Issuer.**  Each WorkingCapital Lender and Borrower agree that, in paying any drawing under a Letter ofCredit, L/C Issuer shall not have any responsibility to obtain anydocument (other than any sight draft, certificates and documents expresslyrequired by the Letter of Credit) or to ascertain or inquire as to the validityor accuracy of any such document or the authority of the Person executing ordelivering any such document.  None ofL/C Issuer, Administrative Agent, any of their respective Related Partiesand any correspondent, participant or assignee of L/C Issuer shall beliable to any Lender for:  (i) anyaction taken or not taken, at the request or with the approval of Lenders or RequiredLenders, as applicable, in connection with a Letter of Credit or any IssuerDocument; (ii) in the absence of gross negligence or willful misconduct,any action taken or not taken in connection with a Letter of Credit or anyIssuer Document; or (iii) the due execution, effectiveness, validity or enforceabilityof any document related to any Letter of Credit or Issuer Document.  As between Borrower and L/C Issuer,Borrower hereby assumes all risks of the acts or omissions of any beneficiaryor transferee with respect to its use of any Letter of Credit; *provided* that this assumption is not intended to, and shallnot, preclude Borrower from pursuing such rights and remedies as it may haveagainst the beneficiary or transferee at law or under any other agreement.  None of L/C Issuer, Administrative Agent,any of their respective Related Parties and any correspondent, participant orassignee of L/C Issuer shall be liable or responsible for any of thematters described in clauses (i) through (v) of **Section 2.03(e)**;*provided* that, notwithstanding anythingto the contrary contained in such clauses, Borrower may have a claim againstL/C Issuer, and L/C Issuer may be liable to Borrower, to the extent,but only to the extent, of any direct, as opposed to consequential orexemplary, damages suffered by Borrower that Borrower proves were caused byL/C Issuer’s willful misconduct or gross negligence or L/C Issuer’swillful failure to pay under any Letter of Credit after the presentation to itby the beneficiary of a sight draft and certificate(s) strictly complyingwith the terms and conditions of a Letter of Credit.  In furtherance and not in limitation of theforegoing, L/C Issuer may accept documents that appear on their face to bein order, without responsibility for further investigation, regardless of anynotice or information to the contrary, and L/C Issuer shall not beresponsible for the validity or sufficiency of any document transferring orassigning or purporting to transfer or assign a Letter of Credit or the rightsor benefits thereunder or proceeds thereof, in whole or in part, that may proveto be invalid or ineffective for any reason.

 

**(g)****          ****CashCollateral.**  Upon therequest of Administrative Agent, if L/C Issuer has honored any full orpartial drawing request under any Letter of Credit and such drawing hasresulted in an L/C Borrowing that remains outstanding after paymentthereof is due from Borrower, or if, on or after the L/C Expiration Date,any L/C Obligation remains outstanding for any reason without the consentof all Lenders, then Borrower shall, in each such case, immediately CashCollateralize the then Outstanding Amount of all L/C Obligations with anamount equal to 102.00% of such Outstanding Amount.  **Section 2.05**and **Section 8.02(c) **set forthcertain additional requirements to deliver Cash Collateral hereunder.  Borrower hereby grants to AdministrativeAgent, for the benefit of L/C Issuer and Working Capital Lenders, asecurity interest in all such cash, deposit accounts and all balances thereinand all proceeds of the foregoing.

 

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**(h)****          ****Applicabilityof ISP.**  Unless otherwise expresslyagreed by L/C Issuer and Borrower when a standby Letter of Credit isissued (including any such agreement applicable to an Existing Letter ofCredit), the rules of the ISP shall apply to such Letter of Credit.

 

**(i)****           ****L/C Fees.**  Borrower shall pay to Administrative Agentfor the account of each Working Capital Lender in accordance with its WorkingCapital Percentage Share a fee (the “***L/C Fee***”)equal to the Applicable Rate *multiplied* bythe actual daily amount available to be drawn under all Letters of Credit.  For purposes of computing the actual dailyamount available to be drawn under all Letters of Credit, the amount of eachLetter of Credit shall be determined in accordance with **Section 1.02(i)**.  L/C Fees shall be:  (i) computed on a quarterly basis inarrears and (ii) due and payable on the last Business Day of each March,June, September and December (in each case for the calendar quarterthen ending), commencing with the first such date to occur after the issuanceof such Letter of Credit, on the L/C Expiration Date and thereafter ondemand.  If there is any change in theApplicable Rate during any quarter, then the actual daily amount available tobe drawn under all Letters of Credit shall be computed and *multiplied*by the Applicable Rate separately for each period during such quarter that suchApplicable Rate was in effect. Notwithstanding anything to the contrary contained herein, while anyEvent of Default exists, upon written notice to Borrower from Required WorkingCapital Lenders, all L/C Fees shall accrue at the Default Rate.

 

**(j)****           ****Fees ofL/C Issuer.**  Borrowershall pay directly to L/C Issuer for its own account such fees withrespect to each Letter of Credit as are set forth in the Fee Letter and anyother customary fees.

 

**(k)****          ****Conflictwith Issuer Documents.**  If aconflict exists between the terms hereof and the terms of any Issuer Document,the terms hereof shall control.

 

**SECTION 2.04****                              ****SWINGLINE LOANS.**

 

**(a)****          ****TheSwing Line.**  Subject tothe terms and conditions set forth herein, Swing Line Lender agrees, inreliance upon the agreements of the Floorplan Lenders set forth in this **Section 2.04**, to make loans (each such loan, a “***Swing Line Loan***”) to Borrower fromtime to time on any Business Day from the Closing Date through the tenth (10th) Business Day immediatelypreceding the last day of the Floorplan Availability Period in an aggregateamount not to exceed at any time outstanding the amount of the Swing LineSublimit, notwithstanding the fact that such Swing Line Loans, when aggregatedwith the Floorplan Percentage Share of the Outstanding Amount of FloorplanLoans acting as Swing Line Lender, may exceed the amount of such Lender’sFloorplan Commitment; *provided* that,after giving effect to any Swing Line Loan: (i) the Total Floorplan Outstandings shall not exceed FloorplanAvailability; and (ii) the aggregate Outstanding Amount of the FloorplanLoans of any Floorplan Lender (other than the Swing Line Lender in suchcapacity), *plus* such other Lender’s FloorplanPercentage Share of the Outstanding Amount of all Swing Line Loans shall notexceed such Lender’s Floorplan Commitment. Each Swing Line Loan shall be a Base Rate Loan.  Immediately upon the making of a Swing LineLoan, each Floorplan Lender shall be deemed to, and hereby irrevocably andunconditionally agrees to, purchase from Swing Line Lender a risk participationin such Swing Line Loan in an amount equal to the such Lender’s FloorplanPercentage Share *multiplied by* the amount of suchSwing Line Loan.  Notwithstanding theforegoing, (i) the Swing Line Lender shall not be obligated to make aSwing Line Loan to refinance an outstanding Swing Line Loan, and (ii) theSwing Line Lender shall not be

 

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requiredto make a Swing Line Loan if (A) priorthereto or simultaneously therewith the Borrower shall not have borrowedFloorplan Loans or (B) any FloorplanLender shall be a Defaulting Lender.

 

**(b)****          ****SwingLine Borrowing Procedures.**  Unless the Swing Line has been terminated orsuspended by Swing Line Lender as provided in subsection (a) of this **Section 2.04**, each Swing Line Borrowing shall be madeupon Borrower’s irrevocable notice to Swing Line Lender and AdministrativeAgent, which may be given by telephone. Each such notice must be received by Swing Line Lender andAdministrative Agent not later than 1:00 p.m. on the requested borrowingdate, and must specify:  (i) theamount to be borrowed, which shall be a minimum of $100,000.00 or a wholemultiple of $50,000.00 in excess thereof; (ii) the requested borrowingdate, which must be a Business Day.  Eachsuch telephonic notice must be confirmed promptly by delivery to Swing LineLender and Administrative Agent of a written Swing Line Loan Notice, appropriatelycompleted and signed by a Responsible Officer of Borrower.  Promptly after receipt by Swing Line Lenderof any telephonic Swing Line Loan Notice, Swing Line Lender will confirm withAdministrative Agent (by telephone or in writing) that Administrative Agent hasalso received such Swing Line Loan Notice and, if not, Swing Line Lender willnotify Administrative Agent (by telephone or in writing) of the contentsthereof.  Unless (A) the Swing Linehas been terminated or suspended by Swing Line Lender, or (B) Swing LineLender has received notice (by telephone or in writing) from AdministrativeAgent (including at the request of any Floorplan Lender) prior to 2:00 p.m.on the date of the proposed Swing Line Borrowing (1) directing Swing LineLender not to make such Swing Line Loan as a result of the limitations setforth in the proviso to the first sentence of **Section 2.04(a)**,or (2) that at least one of the applicable conditions specified in **Article IV** is not then satisfied, then, subject to theterms and conditions hereof, Swing Line Lender will, not later than 3:00 p.m.on the borrowing date specified in the related Swing Line Loan Notice, make theamount of its Swing Line Loan available to Borrower at its office by creditingthe account of Borrower on the books of Swing Line Lender in immediatelyavailable funds.  Floorplan Lenders agreethat Swing Line Lender may agree to modify the borrowing procedures used inconnection with the Swing Line in its discretion and without affecting any ofthe obligations of Floorplan Lenders hereunder other than notifyingAdministrative Agent of a Swing Line Loan Notice.

 

**(c)****          ****Refinancingof Swing Line Loans.**

 

(i)            Swing LineLender at any time in its sole and absolute discretion may request, on the 15th day of each month (or, if such day is not aBusiness Day, the immediately preceding Business Day) and on the last BusinessDay of each month during the term hereof shall request, on behalf of Borrower(which hereby irrevocably authorizes Swing Line Lender to so request on itsbehalf), that each Floorplan Lender make a Floorplan Loan that is a Base RateLoan in an amount equal to such Lender’s Floorplan Percentage Share *multiplied by* the aggregate Outstanding Amount of Swing LineLoans as of the close of business on the immediately preceding Friday (or, ifsuch day is not a Business Day, the immediately preceding Business Day).  Such request shall be made in writing (whichwritten request shall be deemed to be a Loan Notice for purposes hereof) and inaccordance with the requirements of **Section 2.02**,without regard to the minimum and multiples specified therein for the principalamount of Base Rate Loans, but subject to the unutilized portion of theAggregate Floorplan Commitments and the conditions set forth in **Section 4.02**.  SwingLine Lender shall furnish Borrower with a copy of the applicable Loan Noticepromptly after delivering such notice to Administrative Agent.  Each Floorplan Lender shall make an amountequal to its Floorplan Percentage Share *multiplied by*the 

 

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aggregateamount of the requested Floorplan Loans specified in such Loan Notice availableto Administrative Agent in immediately available funds for the account of SwingLine Lender at the Administrative Agent’s Office not later than 1:00 p.m.on the day specified in such Loan Notice, whereupon, subject to **Section 2.04(c)(ii)**, each Floorplan Lender that somakes funds available shall be deemed to have made a Floorplan Loan that is aBase Rate Loan to Borrower in such amount. Administrative Agent shall promptly remit the funds so received to SwingLine Lender.

 

(ii)           If for anyreason the outstanding amount of all Swing Line Loans cannot be refinanced bysuch a Floorplan Borrowing in accordance with **Section 2.04(c)(i)**,then the request for Floorplan Loans that are Base Rate Loans submitted bySwing Line Lender as set forth herein shall be deemed to be a request by SwingLine Lender that each Floorplan Lender fund its risk participation in therelevant Swing Line Loan and each Floorplan Lender’s payment to AdministrativeAgent for the account of Swing Line Lender pursuant to **Section 2.04(c)(i) **shallbe deemed payment in respect of such participation.

 

(iii)          If anyFloorplan Lender fails to make available to Administrative Agent for theaccount of Swing Line Lender any amount required to be paid by such Lenderpursuant to the foregoing provisions of this **Section 2.04(c) **bythe time specified in **Section 2.04(c)(i)**,Swing Line Lender shall be entitled to recover from such Lender (acting throughAdministrative Agent), on demand, such amount with interest thereon for theperiod from the date such payment is required to the date on which such paymentis immediately available to Swing Line Lender at a rate per annum equal to thegreater of the Federal Funds Rate and a rate determined by Swing Line Lender inaccordance with banking industry rules on interbank compensation, *plus* any administrative, processing or similar feescustomarily charged by Swing Line Lender in connection with the foregoing.  A certificate of Swing Line Lender submittedto any Floorplan Lender (through Administrative Agent) with respect to anyamounts owing under this clause (iii) shall be conclusive absentmanifest error.

 

(iv)          Each FloorplanLender’s obligation to make Floorplan Loans or to purchase and fund riskparticipations in Swing Line Loans pursuant to this **Section 2.04(c) **shallbe absolute and unconditional and shall not be affected by any circumstance,including:  (A) any setoff,counterclaim, recoupment, defense or other right that such Lender may haveagainst Swing Line Lender, Borrower or any other Person for any reasonwhatsoever; (B) the occurrence or continuance of a Default; or(C) any other occurrence, event or condition, whether or not similar toany of the foregoing; *provided* thateach Floorplan Lender’s obligation to make Floorplan Loans pursuant to this **Section 2.04(c) **is subject to the conditions setforth in **Section 4.02**.  No such funding of risk participations shallrelieve or otherwise impair the obligation of Borrower to repay Swing LineLoans together with interest as provided herein.

 

**(d)****          ****Repaymentof Participations.**

 

(i)            If, at any timeafter any Floorplan Lender has purchased and funded a risk participation in aSwing Line Loan, Swing Line Lender receives any payment on account of suchSwing Line Loan, then Swing Line Lender will distribute to such Lender anamount equal to its Floorplan Percentage Share *multipliedby* such payment (appropriately adjusted, in the case of 

 

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interestpayments, to reflect the period of time during which such Lender’s riskparticipation was funded) in the same funds as those received by Swing LineLender.

 

(ii)           If any paymentreceived by Swing Line Lender in respect of principal or interest on any SwingLine Loan is required to be returned by Swing Line Lender under any of thecircumstances described in **Section 10.05**(including pursuant to any settlement entered into by Swing Line Lender in itsdiscretion), each Floorplan Lender shall pay to Swing Line Lender an amountequal to its Floorplan Percentage Share *multiplied by*the amount to be returned on demand of Administrative Agent, *plus* interest thereon from the date of such demand to thedate such amount is returned, at a rate per annum equal to the Federal FundsRate.  Administrative Agent will makesuch demand upon the request of Swing Line Lender.  The obligations of Floorplan Lenders underthis clause shall survive the payment in full of the Obligations and thetermination of this Agreement.

 

**(e)****          ****Interestfor Account of Swing Line Lender.**  Swing Line Lender shall be responsible forinvoicing Borrower for interest on Swing Line Loans.  Until each Floorplan Lender funds itsFloorplan Loan that is a Base Rate Loan or risk participation pursuant to this **Section 2.04** to refinance such Lender’s FloorplanPercentage Share of any Swing Line Loan, interest in respect of suchproportionate share shall be solely for the account of Swing Line Lender.

 

**(f)****           ****PaymentsDirectly to Swing Line Lender.**  Borrower shall make all payments of principaland interest in respect of Swing Line Loans directly to Swing Line Lender.

 

**(g)**           **TreasuryManagement Borrowings and Payments**.  Unless the Swing Line has been terminated orsuspended by Swing Line Lender as provided in subsection (a) of this **Section 2.04** and so long as the Treasury ManagementService Documents are effective between Swing Line Lender and Borrower, SwingLine Borrowings may be made and repaid by Borrower pursuant to the TreasuryManagement Service Documents.  Swing LineLender shall have no obligation to make a Swing Line Loan pursuant to theTreasury Management Service Documents if (A) the Swing Line has beenterminated or suspended by Swing Line Lender as provided in this Agreement, or(B) Swing Line Loans are not available (1) as a result of thelimitations set forth in the proviso to the first sentence of **Section 2.04(a)**, or (2) because at least one ofthe applicable conditions specified in **Article IV**is not then satisfied.  Revolving CreditLenders agree that Swing Line Lender may agree to modify the TreasuryManagement Service Documents and the borrowing procedures set forth thereinused in connection with the Swing Line in its discretion and without affecting anyof the obligations of Revolving Credit Lenders hereunder.

 

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**SECTION 2.05****         ****PAYMENTS AND PREPAYMENTS.**

 

**(a)****          ****SwingLine Repayments. **The Borrowershall repay each Swing Line Loan on the earlier to occur of (i) the datefive (5) Business Days after such Swing Line Loan is made or (ii) theFloorplan Maturity Date.

 

**(b)****          ****VoluntaryPrepayments.**

 

(i)            Borrower may,upon notice to Administrative Agent, at any time or from time to timevoluntarily prepay Working Capital Loans in whole or in part without premium orpenalty; *provided* that:  (A) such notice must be received byAdministrative Agent not later than 11:00 a.m.:  (1) three Business Days prior to anydate of prepayment of Working Capital Loans that are Eurodollar Rate Loans; and(2) one Business Day prior to the date of prepayment of Working CapitalLoans that are Base Rate Loans; and (B) any prepayment of any WorkingCapital Loans of a given Type shall be in a principal amount of $1,000,000.00or a whole multiple of $500,000.00 in excess thereof for Eurodollar Rate Loansand $500,000.00 or a whole multiple of $100,000.00 in excess thereof for BaseRate Loans, or, if less, the entire principal amount thereof thenoutstanding.  Each such notice shallspecify the date and amount of such prepayment and the Type(s) of WorkingCapital Loans to be prepaid. Administrative Agent will promptly notify each Working Capital Lender ofits receipt of each such notice and of the amount of such Lender’s WorkingCapital Percentage Share thereof.  IfBorrower gives such notice, then Borrower’s prepayment obligation shall beirrevocable, and Borrower shall make such prepayment and the payment amountspecified in such notice shall be due and payable on the date specifiedtherein.  Any prepayment of a WorkingCapital Loan that is a Eurodollar Rate Loan shall be accompanied by all accruedinterest on the amount prepaid, together with any additional amounts requiredpursuant to **Section 3.05**.  Each such prepayment shall be applied to theWorking Capital Loans of the Working Capital Lenders in accordance with theirrespective Working Capital Percentage Shares.

 

(ii)           Borrower may,upon notice to Swing Line Lender (with a copy to Administrative Agent), at anytime or from time to time, voluntarily prepay Swing Line Loans in whole or inpart without premium or penalty; *provided*that:  (A) such notice must bereceived by Swing Line Lender and Administrative Agent not later than 1:00 p.m.on the date of the prepayment; and (B) any such prepayment shall be in aminimum principal amount of $100,000.00 or a whole multiple of $50,000.00 inexcess thereof or, if the aggregate Outstanding Amount of Swing Line Loans isless, the entire Outstanding Amount thereof. Each such notice shall specify the date and amount of suchprepayment.  If Borrower gives such anotice, then Borrower’s prepayment obligation shall be irrevocable, andBorrower shall make such prepayment and the payment amount specified in suchnotice shall be due and payable on the date specified therein.

 

(iii)          Borrower may,upon notice to Administrative Agent, at any time or from time to timevoluntarily prepay Floorplan Loans in whole or in part without premium orpenalty; *provided* that:  (A) such notice must be received byAdministrative Agent not later than 11:00 a.m. one Business Day prior tothe date of prepayment of Floorplan Loans; and (B) any prepayment of anyFloorplan Loans shall be in a principal amount of $500,000.00 or a wholemultiple of $100,000.00 in excess thereof, or, if less, the entire principalamount thereof then 

 

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outstanding.  Each such notice shall specify the date andamount of such prepayment. Administrative Agent will promptly notify each Floorplan Lender of its receiptof each such notice and of the amount of such Lender’s Floorplan PercentageShare thereof.  If Borrower gives suchnotice, then Borrower’s prepayment obligation shall be irrevocable, andBorrower shall make such prepayment and the payment amount specified in suchnotice shall be due and payable on the date specified therein.  Each such prepayment shall be applied to theFloorplan Loans of the Floorplan Lenders in accordance with their respectiveFloorplan Percentage Shares.

 

**(c)****          ****MandatoryPrepayments.**

 

(i)            Upon any(A) Event of Loss, or (B) Disposition or series of Dispositions byBorrower or any Subsidiary thereof undertaken within any fiscal year other thanDispositions permitted under **Section 7.05**,Borrower shall prepay the Loans in an amount equal to 100.00% of the NetProceeds of each such Event of Loss or each such Disposition; in each case, tothe extent that the Net Proceeds generated by such Event of Loss or Disposition(s) exceed$5,000,000 in the aggregate for all such Events of Loss or Dispositions, as thecase may be, in any fiscal year; *provided* thatno such prepayment shall be required if the Administrative Agent provideswritten consent for the Borrower or any Subsidiary thereof to purchasereplacement property or restore the property affected by such Event of Loss.

 

(ii)           Upon receipt byBorrower or any Subsidiary thereof, Borrower shall prepay the Loans in anamount equal to 100.00% of the proceeds (net of underwriting discounts andcommissions or placement fees, investment banking fees, legal fees, accountingfees, and other customary fees, commissions, expenses and costs associatedtherewith) of any incurrence of Debt, other than Permitted Debt by Borrower orany Subsidiary thereof.  Any prepaymentpursuant to this **Section 2.05(c)(ii) **shallnot be subject to the minimum amount provisions of **Section 2.05(b)**.

 

(iii)          IntentionallyOmitted.

 

(iv)          If, on any dateand for any reason, the Outstanding Amount of L/C Obligations exceeds theL/C Sublimit, then Borrower shall Cash Collateralize on such dateL/C Obligations in an amount equal to such excess.

 

(v)           IntentionallyOmitted.

 

(vi)          Subject to **Article IV**, if on any date the Total Working CapitalOutstandings *minus* the amount of anyL/C Obligations Cash Collateralized on such date pursuant to the precedingclause (iv), exceeds Working Capital Availability, then Borrower shallimmediately, and without notice or demand, prepay the outstanding principalamount of the Working Capital Loans, Swing Line Loans and L/C Borrowingsby an amount equal to the applicable excess. Any such prepayment shall be applied, *first*,to any L/C Borrowings and/or Cash Collateralize L/C Obligations, *second*, to any Working Capital Loans constituting Base RateLoans or matured Eurodollar Rate Loans, as selected by Borrower, and, *third*, at Borrower’s option, to Cash CollateralizeEurodollar Rate Loans (which Cash Collateral shall be applied on the maturitydate of their respective Interest Periods in the order of the maturities oftheir respective Interest 

 

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Periods)or to prepay Eurodollar Rate Loans (in the order of the maturity of theirrespective Interest Periods).

 

(vii)         Subject to **Article IV**, if on any date the Total FloorplanOutstandings exceeds Floorplan Availability, then Borrower shall immediately,and without notice or demand, prepay the outstanding principal amount of theFloorplan Loans and Swing Line Loans by an amount equal to the applicableexcess.  Any such prepayment shall beapplied, *first*, to prepay Swing Line Loans, *second*, to any Floorplan Loans constituting Base Rate Loansor matured Eurodollar Rate Loans, as selected by Borrower, and, *third*, at Borrower’s option, to Cash CollateralizeEurodollar Rate Loans (which Cash Collateral shall be applied on the maturitydate of their respective Interest Periods in the order of the maturities oftheir respective Interest Periods) or to prepay Eurodollar Rate Loans (in theorder of the maturity of their respective Interest Periods).

 

(viii)        If, followingany reduction of the Aggregate Commitments pursuant to **Section** **2.06**, the aggregate Outstanding Amount of Swing Line Loanswould exceed the Swing Line Sublimit (including as reduced by such reduction),Borrower shall prepay on the reduction date the Outstanding Amount of SwingLine Loans by an amount equal to the amount by which such Outstanding Amountexceeds the Swing Line Sublimit.

 

(ix)           If, followingany reduction of the Aggregate Commitments pursuant to **Section** **2.06**, the L/C Obligations would exceed the L/C Sublimit(including as reduced by such reduction), Borrower shall Cash Collateralizesuch L/C Obligations.

 

**(d)****          ****IntentionallyOmitted.**

 

**SECTION 2.06****         ****TERMINATION OR REDUCTION OFAGGREGATE COMMITMENTS.**

 

**(a)****          ****VoluntaryReductions; Termination.**

 

(i)            Borrower may, uponnotice to Administrative Agent, terminate the Aggregate Working CapitalCommitments, or from time to time permanently reduce the Aggregate WorkingCapital Commitments; *provided*that:  (A) any such notice shall beirrevocable and received by Administrative Agent not later than 11:00 a.m.three Business Days prior to the date of termination or reduction; (B) anysuch partial reduction shall be in an aggregate amount of $1,000,000.00 or anywhole multiple of $1,000,000.00 in excess thereof; (C) Borrower shall notterminate or reduce the Aggregate Working Capital Commitments if, after givingeffect thereto and to any concurrent prepayments hereunder, the Total WorkingCapital Outstandings would exceed the Aggregate Working Capital Commitments;and (D) if, after giving effect to any reduction of the Aggregate WorkingCapital Commitments, the sum of the L/C Sublimit exceeds the amount of theAggregate Working Capital Commitments, such sublimit(s) shall beautomatically reduced by the amount of such excess.  Administrative Agent will promptly notifyLenders of any such notice of termination or reduction of the Aggregate WorkingCapital Commitments.  Any reduction ofthe Aggregate Working Capital Commitments shall be applied to the commitment ofeach Working Capital Lender according to its Working Capital Percentage Sharethereof.  All fees payable under **Sections 2.03(i) **and **(j) **and**2.09** accrued until the

 

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effectivedate of any termination of the Aggregate Working Capital Commitments shall bepaid on the effective date of such termination.

 

(ii)           Borrower may,upon notice to Administrative Agent, terminate the Aggregate FloorplanCommitments, or from time to time permanently reduce the Aggregate FloorplanCommitments; *provided* that:  (A) any such notice shall be irrevocableand received by Administrative Agent not later than 11:00 a.m. threeBusiness Days prior to the date of termination or reduction; (B) any suchpartial reduction shall be in an aggregate amount of $1,000,000.00 or any wholemultiple of $1,000,000.00 in excess thereof; and (C) Borrower shall notterminate or reduce the Aggregate Floorplan Commitments if, after giving effectthereto and to any concurrent prepayments hereunder, the Total Floorplan Outstandingswould exceed the Aggregate Floorplan Commitments; and (D) if, after givingeffect to any reduction of the Aggregate Floorplan Commitments, the sum of theSwing Line Sublimit exceeds the amount of the Aggregate Floorplan Commitments,such sublimit(s) shall be automatically reduced by the amount of suchexcess.  Administrative Agent willpromptly notify Lenders of any such notice of termination or reduction of theAggregate Floorplan Commitments.  Anyreduction of the Aggregate Floorplan Commitments shall be applied to thecommitment of each Floorplan Lender according to its Floorplan Percentage Sharethereof.  All fees payable under **Sections 2.03(i) **and **(j) **and**2.09** accrued until the effective dateof any termination of the Aggregate Floorplan Commitments shall be paid on theeffective date of such termination.

 

**(b)****          ****Reserved.**

 

**SECTION 2.07****         ****FINAL REPAYMENT OF LOANS.**

 

**(a)****          ****PaymentsDue on Working Capital Maturity Date.**  On the Working Capital Maturity Date,Borrower shall repay to Working Capital Lenders in full the aggregateOutstanding Amount of all Working Capital Loans.

 

**(b)****          ****PaymentsDue on Floorplan Maturity Date.**  On the Floorplan Maturity Date, Borrowershall repay:  (i) to FloorplanLenders in full the aggregate Outstanding Amount of all Floorplan Loans; and(ii) to Swing Line Lender in full the aggregate Outstanding Amount of allSwing Line Loans.

 

**(c)****          ****IntentionallyOmitted.**

 

**(d)****          ****IntentionallyOmitted.**

 

**SECTION 2.08****         ****INTEREST; APPLICABLE RATES.**

 

**(a)****          ****InterestGenerally.**  Subject tothe provisions of subsection **Section 2.08(b)**:  (i) each Eurodollar Rate Loan shall bearinterest on the outstanding principal amount thereof for each Interest Periodat a rate per annum equal to the Eurodollar Rate for such Interest Period *plus* the Applicable Rate; and (ii) each Base Rate Loan(including a Swing Line Loan) shall bear interest on the outstanding principalamount thereof from the applicable borrowing date at a rate per annum equal to (A) theBase 

 

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Rateor the Daily LIBOR Rate, as designated by Borrower *plus*(B) the Applicable Rate for Base Rate Loans.

 

**(b)****          ****DefaultRate.**

 

(i)            If an Event ofDefault occurs because any amount of principal of any Loan is not paid when due(without regard to any applicable grace periods), whether at stated maturity,by acceleration or otherwise, such amount shall thereafter bear interest whilesuch Event of Default exists at a fluctuating interest rate per annum at alltimes equal to the Default Rate to the fullest extent permitted by applicableLaws.

 

(ii)           If an Event ofDefault occurs because any amount (other than principal of any Loan) payable byBorrower under any Loan Document is not paid when due (without regard to anyapplicable grace periods), whether at stated maturity, by acceleration orotherwise, then upon written notice to Borrower from Required Lenders, suchamount shall thereafter bear interest until the related Event of Default nolonger exists at a fluctuating interest rate per annum at all times equal tothe Default Rate to the fullest extent permitted by applicable Laws.

 

(iii)          Upon writtennotice to Borrower from Required Lenders, while any Event of Default exists,Borrower shall pay interest on the principal amount of all outstandingObligations hereunder at a fluctuating interest rate per annum at all timesequal to the Default Rate to the fullest extent permitted by applicable Lawsuntil such Event of Default no longer exists.

 

(iv)          Accrued andunpaid interest on past due amounts (including interest on past due interest)shall be due and payable upon demand.

 

**(c)****          ****PaymentDates; Accrual of Interest.**  Interest on each Loan shall be due andpayable in arrears on each Interest Payment Date applicable thereto and at suchother times as may be specified herein. Interest hereunder shall be due and payable in accordance with the termshereof both before and after judgment, and both before and after thecommencement of any proceeding under any Bankruptcy Law.

 

**(d)****          ****Increasesand Decreases of Applicable Rates.**  Any increase or decrease in any ApplicableRate resulting from a change in the Consolidated Leverage Ratio shall becomeeffective as of the date that is the earlier of:  (i) the last date by which Borrower isotherwise required to deliver a Compliance Certificate in accordance with **Section 6.02(b) **with reference to **Section 6.01** for a given period (each such date, a “***calculation date***”); and(ii) the date that is two Business Days after the date on which Borroweractually delivers a Compliance Certificate in accordance with **Section 6.02(b) **with reference to **Section 6.01** for such period; *provided*that the Applicable Rates in effect from the Closing Date to the date that istwo Business Days following receipt by Administrative Agent of a timelydelivered Compliance Certificate with respect to the Fiscal Period ended October 31,2010 shall be set at Tier III (as indicated on **Schedule 1.01-A**);*provided further* that, if any ComplianceCertificate required to be delivered in accordance with **Section 6.02(b) **withreference to **Section 6.01** for any givenperiod is not delivered to Administrative Agent on or before the relatedcalculation date, then Tier 1 (as indicated on **Schedule 1.01-A**)shall apply, effective on the related calculation date until two Business Daysafter such Compliance Certificate is actually received by Administrative Agent.

 

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Notwithstandingthe foregoing and for the avoidance of doubt, if, for any period and for anyreason, the actual Consolidated Leverage Ratio is higher than that reported inthe related Compliance Certificate delivered for such period, then Borrowershall immediately, without the requirement of notice or demand from any Person,pay to Lending Parties an amount equal to the excess of:  (A) the amount of interest or fees thatwould have accrued had the Applicable Rates for such period been based upon theactual Consolidated Leverage Ratio for such period rather than the ConsolidatedLeverage Ratio reported in the Compliance Certificate delivered for suchperiod; *over* (B) the amount of interest orfees that was actually paid by Borrower based upon the Consolidated LeverageRatio reported in the Compliance Certificate delivered for such period.

 

**SECTION 2.09****         ****FEES.**

 

Inaddition to certain fees described in subsections (i) and (j) of **Section 2.03**:

 

**(a)****          ****WorkingCapital Commitment Fee.** Borrower shall pay to Administrative Agent for the account of eachWorking Capital Lender in accordance with its Working Capital Percentage Share,a commitment fee (the “***Working Capital CommitmentFee***”) equal to the Applicable Rate *multiplied**by* the actual daily amount by which theAggregate Working Capital Commitments exceed the sum of the Total WorkingCapital Outstandings.  The WorkingCapital Commitment Fee shall accrue at all times during the Working CapitalAvailability Period, including at any time during which one or more of theconditions in **Article IV** is not met, andshall be due and payable quarterly in arrears on the last Business Day of eachMarch, June, September and December, commencing with the first such dateto occur after the Closing Date, and on the Working Capital Maturity Date.  The Working Capital Commitment Fee shall becalculated quarterly in arrears, and if there is any change in the ApplicableRate during any quarter, the actual daily amount shall be computed and *multiplied by* the Applicable Rate separately for each periodduring such quarter that such Applicable Rate was in effect.

 

**(b)****          ****AdministrativeAgent’s Fees.**  Borrowershall pay to Administrative Agent for Administrative Agent’s own account, suchfees as are specified as owing to such Person in the Fee Letter.

 

**(c)****          ****FloorplanCommitment Fee.**  Borrowershall pay to Administrative Agent for the account of each Floorplan Lender inaccordance with its Floorplan Percentage Share, a commitment fee (the “***Floorplan Commitment Fee***”) equal tothe Applicable Rate *multiplied**by* the actual daily amount by which the Aggregate FloorplanCommitments exceed the sum of the Total Floorplan Outstandings (less the OutstandingAmount of Swing Line Loans).  TheFloorplan Commitment Fee shall accrue at all times during the FloorplanAvailability Period, including at any time during which one or more of theconditions in **Article IV** is not met, andshall be due and payable quarterly in arrears on the last Business Day of eachMarch, commencing with the first such date to occur after the Closing Date, andon the Floorplan Maturity Date.  TheFloorplan Commitment Fee shall be calculated quarterly in arrears, and if thereis any change in the Applicable Rate during any quarter, the actual dailyamount shall be computed and *multiplied by*the Applicable Rate separately for each period during such quarter that suchApplicable Rate was in effect.

 

**(d)****          ****Collateral Exam Fees**.  The Borrower shall pay the AdministrativeAgent fees in connection with any collateral exams, audits or inspectionsconducted by or on behalf of the

 

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AdministrativeAgent of any Collateral or of the Borrower’s operations or business at therates established from time to time by the Administrative Agent, together withany related out-of-pocket costs and expenses incurred by the AdministrativeAgent**.**

 

**SECTION 2.10****         ****COMPUTATIONS OF INTEREST ANDFEES.**

 

Allcomputations of interest for Base Rate Loans shall be made on the basis of ayear of 360 days and actual days elapsed. All other computations of interest and fees hereunder shall be made onthe basis of a year of 360 days and actual days elapsed.  Interest shall accrue on each Loan for theday on which the Loan is made, and shall not accrue on a Loan, or any portionthereof, for the day on which the Loan or such portion is paid, *provided* that any Loan that is repaid on the same day onwhich it is made shall, subject to **Section 2.12(a)**,bear interest for one day.  Eachdetermination by Administrative Agent of an interest rate or fee hereundershall be conclusive and binding for all purposes, absent manifest error.

 

**SECTION 2.11****         ****EVIDENCE OF DEBT.**

 

**(a)****          ****Evidenceof Payments.**  The CreditExtensions made by each Lender shall be evidenced by one or more accounts orrecords maintained by such Lender and by Administrative Agent in the ordinarycourse of business.  The accounts orrecords maintained by Administrative Agent and each Lender shall be conclusiveabsent manifest error of the amount of the Credit Extensions made by Lenders toBorrower and the interest and payments thereon. Any failure to so record or any error in doing so shall not, however,limit or otherwise affect the obligation of Borrower hereunder to pay anyamount owing with respect to the Obligations. If any conflict exists between the accounts and records maintained byany Lender and the accounts and records of Administrative Agent in respect ofsuch matters, the accounts and records of Administrative Agent shall control inthe absence of manifest error.  Upon therequest of any Lender made through Administrative Agent, Borrower shall executeand deliver to such Lender (through Administrative Agent) a Note, which shallevidence such Lender’s Loans in addition to such accounts or records.  Each Lender may attach schedules to its Noteand endorse thereon the date, Type (if applicable), amount and maturity of itsLoans and payments with respect thereto.

 

**(b)****          ****Evidenceof Certain Participations.**  In addition to the accounts and recordsreferred to in **Section 2.11(a)**, each Lenderand Administrative Agent shall maintain in accordance with its usual practiceaccounts or records evidencing the purchases and sales by such Lender ofparticipations in Letters of Credit and Swing Line Loans.  If any conflict exists between the accountsand records maintained by Administrative Agent and the accounts and records ofany Lender in respect of such matters, the accounts and records ofAdministrative Agent shall control in the absence of manifest error.

 

**SECTION 2.12****         ****PAYMENTS GENERALLY; RIGHT OFADMINISTRATIVE AGENT TO MAKE DEDUCTIONS AUTOMATICALLY.**

 

**(a)****          ****PaymentsGenerally.**

 

(i)            All payments tobe made by Borrower shall be made without condition or deduction for anycounterclaim, defense, recoupment or setoff. Except as otherwise expressly provided herein, all payments by Borrowerhereunder shall be made to Administrative Agent, for

 

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theaccount of the respective Lenders to which such payment is owed, at theAdministrative Agent’s Office in Dollars and in immediately available funds notlater than 12:00 noon on the date specified herein.  Administrative Agent will promptly distributeto each Lender its applicable Percentage Share (or other applicable share asprovided herein) of such payment in like funds as received by wire transfer tosuch Lender’s Lending Office.  Allpayments received by Administrative Agent after 12:00 noon shall be deemedreceived on the next succeeding Business Day and any applicable interest or feeshall continue to accrue.  If any paymentto be made by Borrower shall come due on a day other than a Business Day,payment shall be made on the next following Business Day, and such extension oftime shall be reflected in computing interest or fees, as the case may be.

 

(ii)           Borrower herebyauthorizes Administrative Agent: (A) to deduct automatically all principal, interest or fees whendue hereunder or under any Note from any account of Borrower maintained withAdministrative Agent; and (B) if and to the extent any payment ofprincipal, interest or fees under this Agreement or any Note is not made whendue to deduct any such amount from any or all of the accounts of Borrowermaintained at Administrative Agent. Administrative Agent agrees to provide written notice to Borrower of anyautomatic deduction made pursuant to this **Section 2.12(a)(ii) **showingin reasonable detail the amounts of such deduction.  Each Lender agrees to reimburse Borrowerbased on its applicable Percentage Share for any amounts deducted from suchaccounts in excess of amount due hereunder and under any other Loan Documents.

 

**(b)****          ****Fundingsby Lenders, Payments by Borrower and Presumptions by Administrative Agent.**

 

(i)            UnlessAdministrative Agent shall have received notice from a Lender prior to theproposed date of any Borrowing that such Lender will not make available toAdministrative Agent such Lender’s share of such Borrowing, Administrative Agentmay assume that such Lender has made such share available on such date inaccordance with **Section 2.02** and may, inreliance upon such assumption, make available to Borrower a correspondingamount.  In such event, if a Lender hasnot in fact made its share of the applicable Borrowing available toAdministrative Agent, then the applicable Lender, on the one hand, andBorrower, on the other hand, each severally agrees to pay to AdministrativeAgent forthwith on demand such corresponding amount in immediately availablefunds with interest thereon, for each day from the date such amount is madeavailable to Borrower to the date of payment to Administrative Agent, at:  (A) in the case of a payment to be madeby such Lender, the greater of the Federal Funds Rate and a rate determined byAdministrative Agent in accordance with banking industry rules oninterbank compensation, plus any administrative, processing or similar feescustomarily charged by Administrative Agent in connection with the foregoing;and (B) in the case of a payment to be made by Borrower, the interest rateapplicable to Working Capital Loans that are Base Rate Loans.  If Borrower and such Lender shall pay suchinterest to Administrative Agent for the same or an overlapping period,Administrative Agent shall promptly remit to Borrower the amount of suchinterest paid by Borrower for such period. If such Lender pays its share of the applicable Borrowing toAdministrative Agent, then the amount so paid shall constitute such Lender’sLoan included in such Borrowing.  Anypayment by Borrower shall be without

 

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prejudiceto any claim Borrower may have against a Lender that shall have failed to makesuch payment to Administrative Agent.

 

(ii)           UnlessAdministrative Agent shall have received notice from Borrower prior to the dateon which any payment is due hereunder to Administrative Agent for the accountof Lenders or L/C Issuer that Borrower will not make such payment,Administrative Agent may assume that Borrower has made such payment on suchdate in accordance herewith and may, in reliance upon such assumption,distribute to Lenders or L/C Issuer, as the case may be, the amountdue.  In such event, if Borrower has notin fact made such payment, then Lenders and L/C Issuer, as the case maybe, each severally agrees to repay to Administrative Agent forthwith on demandthe amount so distributed to such Lenders or L/C Issuer, as the case maybe, in immediately available funds with interest thereon, for each day from thedate such amount is distributed to it to the date of payment to AdministrativeAgent, at the greater of the Federal Funds Rate and a rate determined byAdministrative Agent in accordance with banking industry rules oninterbank compensation.  A notice ofAdministrative Agent to any Lender or Borrower with respect to any amount owingunder this subsection (b) shall be conclusive, absent manifest error.

 

**(c)****          ****Failureto Satisfy Conditions Precedent.**  If any Lender makes available to AdministrativeAgent funds for any Loan to be made by such Lender as provided in the foregoingprovisions of this **Article II**,and such funds are not made available to Borrower by Administrative Agentbecause the conditions to the applicable Credit Extension set forth in **Article IV** are not satisfied or waived in accordancewith the terms hereof, Administrative Agent shall return such funds (in likefunds as received from such Lender) to such Lender, without interest.

 

**(d)****          ****Obligationsof Lenders Several.**  The obligationsof Lenders hereunder to make Loans, to fund participations in Letters of Creditand Swing Line Loans and to make payments under **Section 10.04(c) **areseveral and not joint.  The failure ofany Lender to make any Loan, to fund any such participation or to make anypayment under **Section 10.04(c) **on anydate required hereunder shall not relieve any other Lender of its correspondingobligation to do so on such date, and no Lender shall be responsible for thefailure of any other Lender to so make its Loan, purchase its participation orto make its payment under **Section 10.04(c)**.

 

**(e)****          ****FundingSources.**  Nothingherein shall be deemed to obligate any Lender to obtain the funds for any Loanin any particular place or manner or to constitute a representation by anyLender that it has obtained or will obtain the funds for any Loan in anyparticular place or manner.

 

**SECTION 2.13****         ****SHARING OF PAYMENTS.**

 

Ifany Lender shall, by exercising any right of setoff or counterclaim orotherwise, obtain payment in respect of any principal of or interest on any ofthe Loans made by it, or the participations in L/C Obligations or in SwingLine Loans held by it, resulting in such Lender receiving payment of aproportion of the aggregate amount of such Loans or participations and accruedinterest thereon greater than its Percentage Share (or other applicable shareas provided herein) thereof as provided herein, then the Lender receiving suchgreater proportion shall: (a) notify Administrative Agent of such fact; and (b) purchase(for cash at face value) participations in the Loans and subparticipations inL/C Obligations

 

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andSwing Line Loans of the other Lenders, or make such other adjustments as shallbe equitable, so that the benefit of all such payments shall be shared byLenders ratably in accordance with the aggregate amount of principal of andaccrued interest on their respective Loans and other amounts owing them; *provided* that: (i) if any such participations or subparticipations are purchasedand all or any portion of the payment giving rise thereto is recovered, suchparticipations or subparticipations shall be rescinded and the purchase pricerestored to the extent of such recovery, without interest; and (ii) theprovisions of this **Section 2.13**shallnot be construed to apply to: (A) any payment made by Borrower pursuant to and in accordance withthe express terms of this Agreement; or (B) any payment obtained by aLender as consideration for the assignment of or sale of a participation in anyof its Loans or subparticipations in L/C Obligations or Swing Line Loansto any assignee or participant, other than to Borrower or any Subsidiarythereof (as to which the provisions of this **Section 2.13**shall apply).

 

EachLoan Party consents to the foregoing and agrees, to the extent it mayeffectively do so under applicable Law, that any Lender acquiring aparticipation pursuant to the foregoing arrangements may exercise against suchLoan Party rights of setoff and counterclaim with respect to such participationas fully as if such Lender were a direct creditor of such Loan Party in theamount of such participation.

 

**SECTION 2.14****         ****INCREASE IN AGGREGATECOMMITMENTS.**

 

**(a)****          ****Increasein Aggregate Commitments Generally.**  So long as no Default has occurred and iscontinuing or would result therefrom and the Aggregate Commitments have notbeen voluntarily reduced, upon notice to Administrative Agent, at any timeafter the Closing Date but prior to the Working Capital Maturity Date, Borrowermay request one or more Additional Working Capital Commitments or one or moreAdditional Floorplan Commitments; *provided*that:  (i) after giving effect toany such addition, the maximum aggregate amount of Additional Working CapitalCommitments and Additional Floorplan Commitments that have been added pursuantto this Section 2.14 shall not exceed $50,000,000; (ii) any suchaddition shall be in an aggregate amount of $15,000,000.00 or any wholemultiple of $1,000,000.00 in excess thereof (*provided*that such amount may be less than $15,000,000.00 if such amount represents allremaining availability under the aggregate limit in respect of AdditionalWorking Capital Commitments and Additional Floorplan Commitments set forth inclause (i) of this proviso); (iii) Borrower may request amaximum total of three (3) increases under this section and (iv) noLender shall be required to participate in the Additional Working CapitalCommitments or Additional Floorplan Commitments.

 

**(b)****          ****CertainProvisions Regarding Increase of Aggregate Commitments.**  If any Additional Working Capital Commitmentsor Additional Floorplan Commitments are added in accordance with this **Section 2.14**, Administrative Agent and Borrower shalldetermine the effective date (the “***Additional Commitments EffectiveDate***”) of such addition and the amount of, and the Persons whowill provide, such Additional Working Capital Commitments or AdditionalFloorplan Commitments, as applicable; *provided*thatno existing Lender shall have any obligation to provide all or any portion ofsuch Additional Working Capital Commitments or Additional FloorplanCommitments.  Administrative Agent shallpromptly notify Borrower and Lending Parties (which may, in the case ofAdditional Working Capital Commitments, include Persons reasonably acceptableto Administrative Agent and Borrower that were not Lenders prior to theAdditional Commitments Effective Date) of the final amount of such addition andthe Additional Commitments Effective Date, as well as in the case of eachnotice to any Working Capital Lender, the respective interests in such WorkingCapital Lender’s

 

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WorkingCapital Loans, in each case subject to the assignments contemplated by this **Section 2.14**.  Asconditions precedent to such addition: (i) the representations and warranties contained in **Article V** and the other Loan Documents (including alldocuments required pursuant to **Section 2.14(c)**)shall be true and correct on and as of the Additional Commitments Effective Date,except to the extent that such representations and warranties specificallyrefer to an earlier date, in which case they shall have been true and correctas of such earlier date, and except that, for purposes of this **Section 2.14(b)**, the representations and warrantiescontained in **Section 5.11(a) **and **Section 5.11(b) **shall be deemed to refer to themost recent financial statements furnished pursuant to **Section 6.01(a) **and**Section 6.01(b)**, respectively;(ii) no Default shall exist immediately before or immediately after givingeffect to such addition; without limiting the generality of the foregoing,Borrower shall be in compliance with the financial covenants set forth in **Section 6.12** after giving pro forma effect to themaking of Additional Working Capital Loans or Additional Floorplan Loans, asapplicable, in connection with such addition; (iii) Borrower,Administrative Agent and Lending Parties (including any new Lending Partiesbeing added in connection with such addition) shall have entered into all documentsrequired pursuant to **Section 2.14(c)**,and Borrower shall have complied with all of the conditions precedent to theeffectiveness of such addition as provided in such documents (including anyrequirement to pay fees and expenses to any or all of Administrative Agent,Arranger and Lending Parties, including any new Lending Parties); and(iv) Borrower shall have delivered to Administrative Agent a certificatedated as of the Additional Commitments Effective Date signed by a ResponsibleOfficer of Borrower, certifying as to the truth, accuracy and correctness ofthe matters set forth in the immediately preceding clauses (i) and(ii).  On each Additional CommitmentsEffective Date, each applicable Lender, Eligible Assignee or other Person whois providing an Additional Working Capital Commitment or an AdditionalFloorplan Commitment:  (A) in thecase of any Additional Working Capital Commitment, shall become a “***Working Capital Lender***” for allpurposes of this Agreement and the other Loan Documents; and (B) in thecase of any Additional Floorplan Commitment, shall become a “***Floorplan Lender***” for all purposesof this Agreement and the other Loan Documents. Any Additional Working Capital Loan shall be a “***WorkingCapital Loan***” and the other Loan Documents and any AdditionalFloorplan Loan shall be a “***Floorplan Loan***”for all purposes of this Agreement and the other Loan Documents.  In furtherance of the foregoing, on anyAdditional Commitments Effective Date on which Additional Working CapitalCommitments are made, subject to the satisfaction of the other terms andconditions contained in this **Section 2.14**:  (1) each of the existing Working CapitalLenders shall assign to each Person providing an Additional Working CapitalCommitment, and each such Person shall purchase from each of the existingWorking Capital Lenders, in an amount equal to the Outstanding Amount thereof(together with accrued but unpaid interest thereon), such interests in theWorking Capital Loans outstanding on such date as shall be necessary in orderthat, after giving effect to all such assignments and purchases, such WorkingCapital Loans will be held by existing Working Capital Lenders and the Personmaking the Additional Working Capital Commitments ratably in accordance withtheir Working Capital Percentage Shares after giving effect to the addition ofsuch Additional Working Capital Commitments to the existing Working CapitalCommitments; and (2) each Person making an Additional Working CapitalCommitment shall be deemed for all purposes to have a Working CapitalCommitment and each Additional Working Capital Loan shall be deemed, for allpurposes, a Working Capital Loan.  Infurtherance of the foregoing, on any Additional Commitments Effective Date onwhich Additional Floorplan Commitments are made, subject to the satisfaction ofthe other terms and conditions contained in this **Section 2.14**:  (1) each of the existing FloorplanLenders shall assign to each Person providing an Additional FloorplanCommitment, and each such Person shall purchase from each of the existingFloorplan Lenders, in an amount equal to the Outstanding Amount thereof(together with accrued but unpaid interest thereon), such interests in the

 

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FloorplanLoans outstanding on such date as shall be necessary in order that, aftergiving effect to all such assignments and purchases, such Floorplan Loans willbe held by existing Floorplan Lenders and the Person making the AdditionalFloorplan Commitments ratably in accordance with their Floorplan PercentageShares after giving effect to the addition of such Additional FloorplanCommitments to the existing Floorplan Commitments; and (2) each Personmaking an Additional Floorplan Commitment shall be deemed for all purposes tohave a Floorplan Commitment and each Additional Floorplan Loan shall be deemed,for all purposes, a Floorplan Loan.

 

**(c)****          ****Termsand Documentation.**  Any otherterms of and documentation entered into in respect of any Additional WorkingCapital Commitments made or any Additional Floorplan Commitments provided ineach case pursuant to this **Section 2.14**(collectively, the “***Additional Commitment Documentation***”)shall be consistent with the Working Capital Commitments and FloorplanCommitments (including with respect to voluntary and mandatoryprepayments).  Any Additional WorkingCapital Commitments or Additional Floorplan Loans, as applicable, made orprovided pursuant to this **Section 2.14**shall be evidenced by one or more entries in the Register maintained by AdministrativeAgent in accordance with the provisions set forth in **Section 10.06(c)**.

 

**(d)****          ****Conflictswith Other Provisions.**  This **Section 2.14** shall supersede any provisions in **Section 10.01** to the contrary.  Notwithstanding any other provision of anyLoan Document, the Loan Documents may be amended by Administrative Agent andthe Loan Parties, if necessary, to provide for terms applicable to eachAdditional Working Capital Commitment or Additional Floorplan Commitments, asthe case may be.

 

**SECTION 2.15****         ****SECURITY FOR THE OBLIGATIONS.**

 

Exceptas otherwise specifically provided in any Loan Document, all Obligations shallbe secured pursuant to the terms of the Collateral Documents.  All Cash Collateral required to secure theObligations (or any portion thereof) shall be maintained in blocked, interestbearing deposit accounts at Wells Fargo or invested in such other CashEquivalents as directed by Borrower and for which Borrower shall have providedevidence reasonably satisfactory to Administrative Agent that AdministrativeAgent possesses a perfected, first priority security interest in such CashCollateral.

 

**SECTION 2.16****         ****EXTENSION OF MATURITY DATE .**

 

(a)           The Borrower may requestthat the Floorplan Maturity Date and the Working Capital Maturity Date beextended for additional terms of twelve (12) months each.  Each of the following conditions must besatisfied in a manner acceptable to Administrative Agent as a conditionprecedent to extension of the Floorplan Maturity Date and the Working CapitalMaturity Date, as applicable:

 

(i)             the Borrower delivers written notice toAdministrative Agent not less than ninety (90) days prior to the FloorplanMaturity Date and the Working Capital Maturity Date, advising that the Borrowerrequests the extension (the “***Borrower Extension Notice***”);

 

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(ii)            theAdministrative Agent and each Lender has consented in writing to suchextension, which consent may be granted or withheld in the Administrative Agent’sand/or each Lender’s sole and absolute discretion; and

 

(iii)           the Borrower, Administrative Agent and each Lendersshall have entered into an amendment to this Agreement which amendment shallconfirm the extension of the Floorplan Maturity Date and the Working CapitalMaturity Date and otherwise be in a form reasonably acceptable to Borrower andLender;

 

(iv)          no Default or Event of Default exists (i) as ofthe date of the Borrower Extension Notice and (ii) if such extension isapproved by Administrative Agent and each Lender commencement date as of theeffective date of such extension term; and

 

(v)           the Borrower has reimbursed the Administrative Agentfor all costs reasonably incurred by the Administrative Agent in processing theextension request, including, without limitation, reasonable legal fees andexpenses.

 

(b)           Within 30 days of a BorrowerExtension Notice being posted to the Electronic Platform, the AdministrativeAgent and each Lender by its signature hereto, agrees to respond to Borrower inwriting stating its consent and approval or its rejection of the then proposedextension of the Floorplan Maturity Date and the Working Capital Maturity Date(“***Lender Party Response***”).  As to any such extension to which a Lenderconsents and approves in a Lender Party Response, such Lender agrees to executeany amendment to this Agreement evidencing such extension promptly upon therequest of Borrower and Administrative Agent.

 

**ARTICLE IIITAXES, YIELD PROTECTION AND ILLEGALITY**

 

**SECTION 3.01****         ****TAXES.**

 

**(a)****          ****PaymentsFree of Taxes.**  Any and allpayments by Borrower to or on account of any obligation of Borrower hereunderor under any other Loan Document shall be made free and clear of and withoutreduction or withholding for any Indemnified Taxes or Other Taxes, *provided* that, if Borrower shall be required by anyapplicable law to deduct any Indemnified Taxes (including any Other Taxes) fromsuch payments, then:  (i) the sumpayable shall be increased as necessary so that after making all requireddeductions (including deductions applicable to additional sums payable underthis **Section 3.01**), AdministrativeAgent, Lender or L/C Issuer, as the case may be, receives an amount equalto the sum it would have received had no such deductions been made;(ii) Borrower shall make such deductions; and (iii) Borrower shalltimely pay the full amount deducted to the relevant Governmental Authority inaccordance with applicable law.

 

**(b)****          ****Paymentof Other Taxes by Borrower.**  Without limiting the provisions of **Section 3.01(a)**, Borrower shall timely pay any OtherTaxes to the relevant Governmental Authority in accordance with applicable law.

 

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**(c)****          ****Indemnificationby Borrower.**  Borrowershall indemnify Administrative Agent and each Lending Party, within ten daysafter written demand therefor, for the full amount of any Indemnified Taxes orOther Taxes (including Taxes imposed or asserted on or attributable to amountspayable under this **Section 3.01**)paid by Administrative Agent or such Lending Party, as the case may be, and anypenalties, interest and reasonable expenses arising therefrom or with respectthereto, whether or not such Indemnified Taxes or Other Taxes were correctly orlegally imposed or asserted by the relevant Governmental Authority.  A certificate as to the amount of suchpayment or liability delivered to Borrower by any Lending Party (with a copy toAdministrative Agent), or by Administrative Agent on its own behalf or onbehalf of a Lending Party, shall be conclusive absent manifest error.

 

**(d)****          ****Evidenceof Payments.**  If requestedin writing by Administrative Agent, Borrower shall deliver to AdministrativeAgent, as soon as practicable after any payment of Indemnified Taxes or OtherTaxes by Borrower to a Governmental Authority, the original or a certified copyof a receipt issued by such Governmental Authority evidencing such payment, acopy of the return reporting such payment or other evidence of such paymentreasonably satisfactory to Administrative Agent.

 

**(e)****          ****ForeignLenders.**  Each LendingParty that is not a “United States person” (as such term is defined inSection 7701(a)(30) of the Code) shall submit to Borrower andAdministrative Agent on or before the date such financial institution becomes aparty hereto, two duly signed completed copies of either IRS Form W-8BENor any successor thereto (relating to such Person and entitling it to anexemption from, or reduction of, withholding tax on all payments to be made tosuch Person by Borrower pursuant to this Agreement) or IRS Form W-8ECI orany successor thereto (relating to all payments to be made to such Person byBorrower pursuant to this Agreement) or such other evidence satisfactory toBorrower and Administrative Agent that such Person is entitled to an exemptionfrom, or reduction of, United States withholding tax.  Thereafter and from time to time, each suchPerson shall:  (i) promptly submitto Administrative Agent and Borrower such additional duly completed and signedcopies of one of such forms (or such successor forms as shall be adopted from timeto time by the relevant United States taxing authorities) as may then beavailable under then current United States laws and regulations to avoid, orsuch evidence as is satisfactory to Borrower and Administrative Agent of anyavailable exemption from or reduction of, United States withholding taxes inrespect of all payments to be made to such Person by Borrower or AdministrativeAgent pursuant to this Agreement; (ii) promptly notify AdministrativeAgent and Borrower of any change in circumstances that would modify or renderinvalid any claimed exemption or reduction; and (iii) take such steps asshall not be materially disadvantageous to it, in the reasonable judgment ofsuch Person, and as may be reasonably necessary (including the re-designationof its lending office) to avoid any requirement of applicable Laws thatBorrower or Administrative Agent make any deduction or withholding for taxesfrom amounts payable to such Person.  Ifsuch Person fails to deliver the forms referred to in this subsection or otherdocumentation, then Administrative Agent may withhold from any interest paymentto such Person an amount equivalent to the applicable withholding tax imposedby Sections 1441 and 1442 of the Code, without reduction.  If any Governmental Authority asserts thatAdministrative Agent did not properly withhold any tax or other amount frompayments made in respect of such Person, such Person shall indemnifyAdministrative Agent therefor, including all penalties and interest, any taxesimposed by any jurisdiction on the amounts payable to Administrative Agentunder this **Section 3.01**, and costs andexpenses (including reasonable attorneys’ fees) of Administrative Agent.  The obligation of Lenders under this **Section 3.01**shall survive the termination of the AggregateCommitments, repayment of all Obligations and the resignation or replacement ofAdministrative Agent.

 

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**(f)****           ****Treatmentof Certain Refunds.**  IfAdministrative Agent or any Lending Party receives a refund of any Taxes orOther Taxes as to which it has been indemnified by Borrower or with respect towhich Borrower has paid additional amounts pursuant to this **Section 3.01**, it shall pay to Borrower an amount equalto such refund (but only to the extent of indemnity payments made, oradditional amounts paid, by Borrower under this **Section 3.01**with respect to the Taxes or Other Taxes giving rise to suchrefund), net of all out-of-pocket expenses of Administrative Agent or suchLending Party, as the case may be, and without interest (other than anyinterest paid by the relevant Governmental Authority with respect to suchrefund); *provided* that Borrower, upon the requestof Administrative Agent or such Lending Party, as applicable, agrees to repaythe amount paid over to Borrower (*plus* anypenalties, interest or other charges imposed by the relevant GovernmentalAuthority) to Administrative Agent or such Lending Party, as applicable, in theevent Administrative Agent or such Lending Party, as applicable is required torepay such refund to such Governmental Authority.  This subsection (f) shall not beconstrued to require Administrative Agent or any Lending Party to makeavailable its tax returns (or any other information relating to its taxes thatit deems confidential) to Borrower or any other Person.

 

**SECTION 3.02****         ****ILLEGALITY.**

 

Ifany Lender determines that any Law has made it unlawful, or that anyGovernmental Authority has asserted that it is unlawful, for any Lender or itsapplicable Lending Office to make, maintain or fund Eurodollar Rate Loans, orto determine or charge interest rates based upon the Eurodollar Rate, or anyGovernmental Authority has imposed material restrictions on the authority ofsuch Lender to purchase or sell, or to take deposits of, Dollars in the Londoninterbank offered market, then, on notice thereof by such Lender to Borrowerthrough Administrative Agent, any obligation of such Lender to make or continueEurodollar Rate Loans or to convert Working Capital Loans that are Base Rate Loansto Eurodollar Rate Loans shall be suspended until such Lender notifiesAdministrative Agent and Borrower that the circumstances giving rise to suchdetermination no longer exist.  Uponreceipt of such notice, Borrower shall, upon demand from such Lender (with acopy to Administrative Agent), prepay or, if applicable, convert all EurodollarRate Loans of such Lender to Base Rate Loans, either on the last day of theInterest Period therefor, if such Lender may lawfully continue to maintain suchEurodollar Rate Loans to such day, or immediately, if such Lender may notlawfully continue to maintain such Eurodollar Rate Loans.  Upon any such prepayment or conversion,Borrower shall also pay accrued interest on the amount so prepaid or convertedand all amounts due under **Section 3.05**in accordance with the terms thereof due to such prepayment or conversion.

 

**SECTION 3.03****         ****INABILITY TO DETERMINE RATES.**

 

If(a) Administrative Agent determines in connection with any request for aBorrowing or continuation of, or a conversion to, Eurodollar Rate Loan that(i) Dollar deposits are not being offered to banks in the London interbankoffered market for the applicable amount and Interest Period of such EurodollarRate Loan or (ii) adequate and reasonable means do not exist fordetermining the Eurodollar Base Rate for any requested Interest Period withrespect to a proposed Eurodollar Rate Loan, or (b) Required Lendersdetermine in connection with any request for a Borrowing or continuation of, ora conversion to, a Eurodollar Rate Loan that the Eurodollar Base Rate for anyrequested Interest Period with respect to a proposed Eurodollar Rate Loan doesnot adequately and fairly reflect the cost to such Lenders of funding suchLoan, then Administrative Agent will promptly so notify Borrower and each

 

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Lenderin writing.  Thereafter, the obligationof Lenders to make or maintain Eurodollar Rate Loans shall be suspended untilAdministrative Agent (upon the instruction of Required Lenders) revokes suchnotice.  Upon receipt of such notice,Borrower may revoke any pending request for a Borrowing of, conversion to orcontinuation of Eurodollar Rate Loans or, failing that, will be deemed to haveconverted such request into a request for a Working Capital Borrowingconsisting of Base Rate Loans in the amount specified therein.

 

**SECTION 3.04****         ****INCREASED COSTS.**

 

**(a)****          ****IncreasedCosts Generally.**  If anyChange in Law shall:

 

(i)              impose, modify or deem applicable any reserve,special deposit, compulsory loan, insurance charge or similar requirementagainst assets of, deposits with or for the account of, or credit extended orparticipated in by, any Lending Party (except any reserve requirement reflectedin the Eurodollar Rate);

 

(ii)             subject any Lending Party to any tax of any kindwhatsoever with respect to this Agreement, any Letter of Credit, anyparticipation in a Letter of Credit or any Eurodollar Rate Loan made by it, orchange the basis of taxation of payments to such Lending Party in respectthereof (except for Indemnified Taxes or Other Taxes covered by **Section 3.01** and the imposition of, or any change inthe rate of, any Excluded Tax payable by such Lending Party); or

 

(iii)            impose on any Lender or L/C Issuer or theLondon interbank offered market any other condition, cost or expense affectingthis Agreement or Eurodollar Rate Loans made by such Lender or any Letter ofCredit or participation therein;

 

andthe result of any of the foregoing shall be to increase the cost to such Lenderof making or maintaining any Eurodollar Rate Loan (or of maintaining itsobligation to make any such Loan), or to increase the cost to such Lender orL/C Issuer of participating in, issuing or maintaining any Letter ofCredit (or of maintaining its obligation to participate in or to issue anyLetter of Credit), or to reduce the amount of any sum received or receivable bysuch Lending Party hereunder (whether of principal, interest or any otheramount), then, upon request of such applicable Lending Party, Borrower will payto such Lending Party such additional amount or amounts as will compensate suchLending Party for such additional costs incurred or reduction suffered.

 

**(b)****          ****CapitalRequirements.**  If anyLender or L/C Issuer determines that any Change in Law affecting suchLender or L/C Issuer or the Lending Office of such Lender or such Lender’sor L/C Issuer’s holding company, if any, regarding capital requirementshas or would have the effect of reducing the rate of return on such Lender’s orL/C Issuer’s capital or on the capital of such Lender’s or L/C Issuer’sholding company, if any, as a consequence of this Agreement, the Commitments ofsuch Lender or the Loans made by, or participations in Letters of Credit heldby, such Lender, or the Letters of Credit issued by L/C Issuer, to a levelbelow that which such Lender or L/C Issuer or such Lender’s orL/C Issuer’s holding company could have achieved but for such Change inLaw (taking into consideration such Lender’s or L/C Issuer’s policies andthe policies of such Lender’s or L/C Issuer’s holding company with respectto capital adequacy), then from time to time Borrower will pay to such Lenderor L/C Issuer, as the case may be, such additional amount or amounts aswill compensate such

 

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Lenderor L/C Issuer or such Lender’s or L/C Issuer’s holding company forany such reduction suffered.  It isacknowledged that this Agreement is being entered into by the Lenders on theunderstanding that the Lenders will not be required to maintain capital againsttheir Working Capital Commitment, the Swing Line Sublimit or the L/C Sublimit,as applicable, under applicable current Laws and regulatory guidelines.  In the event the Lenders shall be advised byany Governmental Authority after the date hereof or shall otherwise determineon the basis of pronouncements of any Governmental Authority after the datehereof that such understanding is incorrect, it is agreed that the Lenders willbe entitled to make claims under this Section (each such claim to be madewithin a reasonable period of time after the Lenders are so advised or have sodetermined).

 

**(c)****          ****Certificatesfor Reimbursement.**  Acertificate of a Lender or L/C Issuer setting forth the amount or amountsnecessary to compensate such Lender or L/C Issuer or its holding company,as the case may be, as specified in subsection (a) or (b) of this **Section 3.04**, as well as the basis for determining suchamount or amounts, and delivered to Borrower shall be conclusive absent manifesterror.  Borrower shall pay such Lender orL/C Issuer, as the case may be, the amount shown as due on any suchcertificate within ten days after receipt thereof.

 

**(d)****          ****Delayin Requests.**  Failure ordelay on the part of any Lender or L/C Issuer to demand compensationpursuant to the foregoing provisions of this **Section 3.04**shall not constitute a waiver of such Lender’s or L/C Issuer’sright to demand such compensation, *provided* thatBorrower shall not be required to compensate a Lender or L/C Issuer pursuantto the foregoing provisions of this **Section 3.04**forany increased costs incurred or reductions suffered more than nine months priorto the date that such Lender or L/C Issuer, as the case may be, notifiesBorrower of the Change in Law giving rise to such increased costs or reductionsand of such Lender’s or L/C Issuer’s intention to claim compensationtherefor (except that, if the Change in Law giving rise to such increased costsor reductions is retroactive, then the nine-month period referred to in thissubsection (d) shall be extended to include the period of retroactiveeffect thereof).

 

**SECTION 3.05****         ****COMPENSATION FOR LOSSES.**

 

Upondemand of any Lender (with a copy to Administrative Agent) from time to time,Borrower shall promptly compensate such Lender for and hold such Lenderharmless from any loss, cost or expense incurred by it as a result of:  (a) any continuation, conversion,payment or prepayment of any Eurodollar Rate Loan on a day other than the lastday of the Interest Period for such Loan (whether voluntary, mandatory,automatic, by reason of acceleration, or otherwise); (b) any failure byBorrower (for a reason other than the failure of such Lender to make a Loan),to prepay (including any failure to prepay pursuant to **Section 2.05(b)(v)**),borrow, continue or convert any Loan other than to continue a Loan as, or toconvert a Loan to, a Base Rate Loan, on the date or in the amount notified byBorrower; or (c) any assignment of a Eurodollar Rate Loan other than onthe last day of the Interest Period applicable thereto as a result of a requestby Borrower pursuant to **Section 2.14**or**Section 3.06**; including, in each of the foregoingcases, any loss of anticipated profits and any loss or expense arising from theliquidation or reemployment of funds obtained by it to maintain such Loan orfrom fees payable to terminate the deposits from which such funds wereobtained.  Borrower shall also pay anycustomary administrative fees charged by such Lender in connection with theforegoing.  For purposes of calculatingamounts payable by Borrower to Lenders under this **Section 3.05**,each Lender shall be deemed to have funded each Eurodollar Rate Loan made by itat the Eurodollar Base Rate used in determining the Eurodollar

 

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Ratefor such Loan by a matching deposit or other borrowing in the London interbankoffered market for a comparable amount and for a comparable period, whether ornot such Eurodollar Rate Loan was in fact so funded.

 

**SECTION 3.06****         ****MITIGATION OBLIGATIONS; ADDITIONALL/C ISSUER.**

 

Notwithstandinganything to the contrary contained in **Section 10.01**:

 

**(a)****          ****Mitigationby Lenders.**  If anyLender requests compensation under **Section 3.04**,or Borrower is required to pay any additional amount to any Lender or any GovernmentalAuthority for the account of any Lender pursuant to **Section 3.01**,or if any Lender gives a notice pursuant to **Section 3.02**,then such Lender, at the request of Borrower, shall use reasonable efforts todesignate a different Lending Office for funding or booking its Loans hereunderor to assign its rights and obligations hereunder to another of its offices,branches or affiliates, if, in the reasonable judgment of such Lender, suchdesignation or assignment:  (i) wouldeliminate or reduce amounts payable pursuant to **Section 3.01**or **Section 3.04**, as the case may be,in the future, or eliminate the need for the notice pursuant to **Section 3.02**, as applicable; and (ii) in eachcase, would not subject such Lender to any unreimbursed cost or expense and wouldnot otherwise be disadvantageous to such Lender as reasonably determined bysuch Lender.  Borrower hereby agrees topay all reasonable costs and expenses incurred by any Lender in connection withany such designation or assignment.

 

**(b)****          ****AdditionalL/C Issuer.**  IfL/C Issuer may not issue Letters of Credit as a result of the limitationsset forth in **Section 2.03(a)(iv)(A)**, thenBorrower may, if no Default exists and with the prior written consent ofAdministrative Agent (which consent shall not be unreasonably withheld ordelayed):  (i) request one of theother Working Capital Lenders (with such other Working Capital Lender’sconsent) to issue Letters of Credit; or (ii) designate a supplemental bankor financial institution, which is an Eligible Assignee and otherwisesatisfactory to Administrative Agent, to issue Letters of Credit and become anadditional “***L/C Issuer***” hereunder.

 

**SECTION 3.07****         ****REMOVAL OR REPLACEMENT OFLENDERS.**

 

Notwithstandinganything to the contrary contained in **Section 10.01**:

 

**(a)****          ****Removalor Replacement of Lenders Generally.**  Borrower may with respect to any SpecifiedLender:

 

(i)            remove suchSpecified Lender by terminating such Specified Lender’s Commitments;

 

(ii)           request one ormore of the other Lenders to acquire and assume all of such Specified Lender’sLoans (including participations in L/C Obligations and in Swing LineLoans) and Commitments, which Lender or Lenders shall have the right, but notthe obligation, to so acquire and assume such Specified Lender’s Loans(including participations in L/C Obligations and in Swing Line Loans) andCommitments pursuant to the procedures set forth in **Section 10.06(b)**;or

 

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(iii)          with the priorwritten consent of Administrative Agent and L/C Issuer (which consentshall not be unreasonably withheld or delayed), designate a replacement bank orfinancial institution that is an Eligible Assignee (a “***ReplacementLender***”), which Replacement Lender shall assume all of the Loans(including participations in L/C Obligations and in Swing Line Loans) andCommitments of such Specified Lender pursuant to the procedures set forth in **Section 10.06(b)**;

 

*provided* that Borrower may not remove such Specified Lender,or require such Specified Lender to make any assignment and delegation,pursuant to the immediately preceding clauses (i), (ii) or (iii), asapplicable, if:  (1) a Default thenexists; (2) prior to the effectiveness of any such action, such SpecifiedLender is no longer a Specified Lender as a result of it no longer being aDefaulting Lender; or (3) Borrower has not concurrently taken an actionunder clause (i), clause (ii) or clause (iii) of thissubsection (a) with respect to all other Lenders who at the time areSpecified Lenders.

 

Any removal of, or assignment and delegation by, a Specified Lenderpursuant to this **Section 3.07(a) **shall besubject to **Section 3.05** and to paymentto such Specified Lender of the aggregate Outstanding Amount of all of itsLoans (including participations in L/C Obligations and in Swing LineLoans) at the time owing to it, all accrued and unpaid interest thereon, allaccrued and unpaid fees and all other amounts payable to it hereunder, whichamounts shall be paid to such Specified Lender by:  (A) in the case of a removal of suchSpecified Lender, Borrower; or (B) in the case of an assignment anddelegation by such Specified Lender, the applicable assignee (to the extent ofall such outstanding principal and accrued and unpaid interest and fees) andBorrower (to the extent of all such other amounts).

 

**(b)****          ****CertainActions Incident to Removal.**  In the case of the removal of any SpecifiedLender pursuant to **Section 3.07(a)(i)**,Borrower shall also:  (i) provideappropriate assurances and indemnities (which may include letters of credit) toL/C Issuer and such Specified Lender as L/C Issuer and such Specified Lendermay reasonably require with respect to any continuing obligation to purchaseparticipation interests in any L/C Obligations then outstanding; and(ii) release such Specified Lender from its obligations under the LoanDocuments.  Each Lender hereby grants toAdministrative Agent a power of attorney (which power of attorney, beingcoupled with an interest, is irrevocable) to execute and deliver, on behalf ofsuch Lender, as assignor, any Assignment and Assumption necessary to effectuateany assignment of such Lender’s interests hereunder in circumstancescontemplated by this **Section 3.07**.

 

**(c)****          ****CertainRights as a Lender.**  Upon theprepayment of all amounts owing to any Specified Lender and the termination ofsuch Lender’s Commitments pursuant to this **Section 3.07**,such Specified Lender shall no longer constitute a “***Lender***”for purposes hereof; *provided*thatany rights of such Specified Lender to indemnification hereunder shall surviveas to such Specified Lender.

 

**(d)****          ****Evidenceof Removal or Replacement.**  Promptly following the removal or replacementof any Affected Lender in accordance with this **Section 3.07**,Administrative Agent shall distribute an amended **Schedule 2.01**,which shall be deemed incorporated into this Agreement, to reflect changes inthe identities of Lenders and adjustments of their respective Commitments orPercentage Shares, as applicable, resulting from any such removal orreplacement.

 

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**SECTION 3.08****         ****SURVIVAL.**

 

Allobligations of Borrower under this **Article III**shall survive termination of the Aggregate Commitments and repayment of allother Obligations.

 

**ARTICLE IVCONDITIONS PRECEDENT**

 

**SECTION 4.01****         ****CONDITIONS TO EFFECTIVENESS ANDTO INITIAL CREDIT EXTENSION.**

 

ThisAgreement shall become binding on the parties hereto upon, and the obligationof each Lending Party to make its initial Credit Extension hereunder is subjectto, the satisfaction of the following conditions precedent (all Loan Documentsand other documents to be delivered to Administrative Agent or any LendingParty pursuant to this **Section 4.01**shall be subject to prior approval as to form and substance (including as toresults) by Lending Parties and Administrative Agent, with delivery by aLending Party or Administrative Agent of its signature page to thisAgreement evidencing such Person’s acknowledgement that the conditions setforth in this **Section 4.01** have beensatisfied, unless otherwise waived in writing):

 

**(a)****          ****Receiptof Certain Documents.** Administrative Agent shall have received the following, each of whichshall be in form and substances satisfactory to the Administrative Agent andeach of which shall be, unless otherwise specified herein or otherwise requiredby Administrative Agent, originals (or telefacsimiles or portable documentformat versions thereof (in either such case, promptly followed by originalsthereof), each, to the extent to be executed by a Loan Party, properly executedby a Responsible Officer of such Loan Party, each dated the Closing Date (or,in the case of certificates of governmental officials, a recent date before theClosing Date), all in sufficient number as Administrative Agent shallseparately identify (including, if specified by Administrative Agent, forpurposes of the distribution thereof to Administrative Agent, Lending Partiesand Borrower):

 

(i)            counterparts of thisAgreement, executed by each of the parties hereto;

 

(ii)           if requested by Swing LineLender or any Lender, a Note or Notes (as the case may be) executed by Borrowerin favor of such Lending Party evidencing, as applicable, the Working CapitalLoans, Floorplan Loans or Swing Line Loans to be made by such Lending Party toBorrower;

 

(iii)          counterparts of the otherLoan Documents (including all applicable Collateral Documents, executed by eachof the parties thereto, together with:

 

(A)          any certificated securities representing shares ofEquity Interests owned by or on behalf of any Loan Party constitutingCollateral as of the Closing Date after giving effect to the Transactionstogether with undated stock powers with respect thereto executed in blank;

 

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(B)           any promissory notes and other instruments evidencingall loans, advances and other debt owed or owing to any Loan Party constitutingCollateral as of the Closing Date after giving effect to the Transactionstogether with undated instruments of transfer with respect thereto executed inblank;

 

(C)           all instruments and other documents, including UCCfinancing statements, required by law or reasonably requested by theAdministrative Agent to be filed, registered or recorded to create or perfectthe Liens intended to be created under the Security Agreement; and

 

(D)          a Perfection Certificate with respect to the LoanParties, dated the Closing Date and duly executed by a Responsible Officer ofBorrower together with results of a search of the UCC (or equivalent) filingsmade and tax and judgment lien searches with respect to the Loan Parties in thejurisdictions contemplated by the Security Agreement and copies of thefinancing statements (or similar documents) disclosed by such search andevidence reasonably satisfactory to the Administrative Agent that the Liensindicated by such financing statements (or similar documents) are permitted by **Section 7.01** or have been released.

 

(iv)          such certificates ofresolutions or other action, incumbency certificates or other certificates ofResponsible Officers of each Loan Party as Administrative Agent may reasonablyrequire evidencing the identity, authority and capacity of each ResponsibleOfficer thereof authorized to act as a Responsible Officer in connection withthe Loan Documents to which such Loan Party is a party;

 

(v)           such documents andcertifications as Administrative Agent may reasonably require to evidence thateach Loan Party is duly organized or formed, and that each Loan Party isvalidly existing, in good standing and qualified to engage in business in:  (A) the State of North Dakota; and(B) each jurisdiction where its ownership, lease or operation ofproperties or the conduct of its business requires such qualification, exceptto the extent that failure to do so could not reasonably be expected to have aMaterial Adverse Effect;

 

(vi)          Intercreditor Agreements asAdministrative Agent may require for the Permitted Floorplan Debt;

 

(vii)         favorable opinions ofcounsel to the Loan Parties reasonably acceptable to Administrative Agentaddressed to Administrative Agent and each Lending Party, as to such matters asare reasonably required by Administrative Agent or any Lending Party withrespect to the Loan Parties and the Loan Documents;

 

(viii)        a certificate of aResponsible Officer of each Loan Party either: (A) attaching copies of all consents, licenses and approvalsrequired in connection with the execution, delivery and performance by suchLoan Party and the validity against such Loan Party of the Loan Documents towhich it is a party, and such consents, licenses and approvals shall be in fullforce and effect; or (B) stating that no such consents, licenses orapprovals are so required;

 

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(ix)           a certificate signed by aResponsible Officer of each Loan Party certifying that:  (A) the conditions specified in **Section 4.02(a) **and **Section 4.02(b) **havebeen satisfied; and (B) there has been no event or circumstance since thedate of the Audited Financial Statements that has had or could be reasonablyexpected to have, either individually or in the aggregate, a Material AdverseEffect;

 

(x)            a landlord consentagreement, in form and substance satisfactory to the Administrative Agent, fromeach lessor of real property with respect to which a Loan Party is a lessee(other than real property designated by the Administrative Agent in its solediscretion), provided that a landlord consent agreement shall not be requiredif the Administrative Agent, in its sole discretion, does not require the same;

 

(xi)           evidence that all insurancerequired to be maintained pursuant to the Loan Documents has been obtained andis in effect;

 

(xii)          a duly completed ComplianceCertificate as of the last day of the Fiscal Period of Borrower ended July 31,2010, signed by an appropriate Responsible Officer of Borrower;

 

(xiii)         a copy,certified by an appropriate Responsible Officer of Borrower, of the financialstatements of Borrower referred to in **Section 5.11**;

 

(xiv)        evidence that:(A) all commitments under the Existing Facilities to be Paid Off and anysecured facilities not otherwise permitted under **Section 7.02**have been terminated not later than the Closing Date, and all outstandingamounts thereunder paid in full; and (B) all Liens securing obligationsunder the Existing Facilities to be Paid Off and any secured facilities nototherwise permitted under **Section 7.02**have been released and terminated not later than the Closing Date; and

 

(xv)         waivers, in theform and substance required by **Section 6.15**,for either 75% of Borrower’s locations or for locations where not less that 75%of the Collateral which is Equipment and Inventory is located, or such lesserpercentage as is agreed to by Administrative Agent, but no less than 50%.

 

(xvi)        such other assurances,certificates, documents, consents, reports or opinions as Administrative Agentor any Lending Party may reasonably require.

 

(xvii)       Others TBD.

 

**(b)**           **[Reserved].**

 

**(c)****          ****Paymentof Fees.**  Borrowershall have paid:  (i) all feesrequired to be paid to Administrative Agent and any Lending Party on or beforethe Closing Date; and (ii) unless Administrative Agent shall have agreedin writing to any delay in such payment, all fees, charges and disbursements ofcounsel to Administrative Agent to the extent invoiced prior to or on theClosing Date, *plus* such additional amounts ofsuch fees, charges and disbursements as shall constitute its reasonableestimate of such fees, charges and disbursements incurred or to be incurred byit through the closing

 

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proceedings(*provided* that such estimate shall notthereafter preclude a final billing by the Administrative Agent to Borrower).

 

Notwithstandinganything to the contrary contained herein, this Agreement shall not becomeeffective or be binding on any party hereto unless all of the conditionsprecedent to the effectiveness of this Agreement as specified in this **Section 4.01(a) **are satisfied at or before 1:00 p.m.on October 27, 2010.  AdministrativeAgent shall promptly notify each Loan Party and each Lending Party of theoccurrence of the Closing Date, and such notice shall be conclusive and bindingon all parties hereto.  For purposes ofdetermining compliance with the conditions specified in this **Section 4.01** (but without limiting the generality ofthe provisions of **Section 9.04**),each Lending Party that has signed this Agreement shall be deemed to haveconsented to, approved or accepted or become satisfied with, each document orother matter required hereunder to be consented to or approved by or to be acceptableor satisfactory to a Lending Party unless Administrative Agent shall havereceived notice from such Lending Party prior to the proposed Closing Datespecifying its objection thereto.

 

**SECTION 4.02****         ****CONDITIONS TO ALL CREDITEXTENSIONS.**

 

Theobligation of each Lending Party to make any Credit Extension (including itsinitial Credit Extension) hereunder or to honor any Request for CreditExtension is subject to the following conditions precedent:

 

**(a)****          ****Truthand Correctness of Representations and Warranties.**  The representations and warranties ofBorrower and each other Loan Party contained in **Article V**or any other Loan Document, or that are contained in any document furnished atany time under or in connection herewith or therewith, shall be true and correcton and as of the date of such Credit Extension, except to the extent that suchrepresentations and warranties specifically refer to an earlier date, in whichcase they shall be true and correct as of such earlier date, and except thatfor purposes of this **Section 4.02**,the representations and warranties contained in subsections (a) and (b) of**Section 5.11** shall be deemed torefer to each of the Audited Financial Statements and the most recentstatements furnished pursuant to subsections (a) and (b), respectively,of **Section 6.01**.

 

**(b)****          ****NoDefault.**  No Defaultshall then exist, or shall result from, such proposed Credit Extension or fromthe application of the proceeds thereof or from the honoring of any Request forCredit Extension.

 

**(c)****          ****Requestsfor Credit Extensions.** Administrative Agent and, if applicable, Swing Line Lender orL/C Issuer shall have received the applicable Request for CreditExtension; *provided* that no L/C Applicationsshall be required in connection with the Existing Letters of Credit becomingLetters of Credit issued hereunder pursuant to the last sentence of **Section 2.03(a)(i)**.

 

**(d)****          ****OtherMatters. **Administrative Agent shallhave received, in form and substance satisfactory to it, such other assurances,documents or consents related to the foregoing as Administrative Agent orRequired Lenders may reasonably require.

 

EachRequest for Credit Extension submitted by Borrower shall be deemed to be arepresentation and warranty that the conditions specified in **Section 4.02(a) **and **Section 4.02(b) **havebeen satisfied on

 

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andas of the date of the making of the applicable Credit Extension or the honoringof the applicable Request for Credit Extension.

 

**ARTICLE VREPRESENTATIONS AND WARRANTIES**

 

Borrowerrepresents and warrants to Administrative Agent and each Lending Party that:

 

**SECTION 5.01****         ****CORPORATE EXISTENCE AND POWER.**

 

Eachof the Loan Parties and their respective Subsidiaries:  (a) is a corporation, partnership orlimited liability company duly organized, validly existing and in good standingunder the laws of the jurisdiction of its incorporation, organization orformation (subject to such changes after the date hereof as are permitted underthe Loan Documents); (b) has the power and authority and all governmentallicenses, authorizations, consents and approvals:  (i) to own its assets and carry on itsbusiness, except to the extent that any failure to have any of the foregoingcould not reasonably be expected to have a Material Adverse Effect; and(ii) to execute, deliver, and perform its obligations under the LoanDocuments to which each is a party; and (c) is duly qualified as a foreigncorporation, partnership or limited liability company, as applicable, and islicensed and in good standing under the laws of each jurisdiction where itsownership, leasing or operation of property or the conduct of its businessrequires such qualification or license, except to the extent that the failureto do so could not reasonably be expected to have a Material Adverse Effect.

 

**SECTION 5.02****         ****CORPORATE AUTHORIZATION; NOCONTRAVENTION.**

 

Theexecution and delivery by each of the Loan Parties and their respectiveSubsidiaries, and the performance by each of the Loan Parties and theirrespective Subsidiaries of its obligations under, each Loan Document to whichsuch Person is party have been duly authorized by all necessary corporate orother organizational action, and do not and will not:  (a) contravene the terms of any of suchPerson’s Organizational Documents; (b) conflict with or result in anybreach or contravention of, or the creation of any Lien under, or require anypayment to be made under:  (i) anyContractual Obligation to which such Person is a party or affecting such Personor the properties of such Person or any Subsidiary thereof which couldreasonable be expected to have a Material Adverse Effect or (ii) anyorder, injunction, writ or decree of any Governmental Authority or any arbitralaward to which such Person or its property is subject; or (c) violate anyLaw.  Each of the Loan Parties and theirrespective Subsidiaries are in compliance with all Contractual Obligationsreferred to in clause (b)(i), except to the extent that any failure to bein compliance could not reasonably be expected to have a Material AdverseEffect.  No Loan Party or any Subsidiarythereof is a party to or is bound by any Contractual Obligation, or is subjectto any restriction in any Organizational Document, or any requirement of Law,which could reasonably be expected to have a Material Adverse Effect.

 

**SECTION 5.03****         ****GOVERNMENTAL AUTHORIZATION;COMPLIANCE WITH LAWS.**

 

**(a)****          ****GovernmentalAuthorizations.**  No approval,consent, exemption, authorization, or other action by, or notice to, or filingwith, any Governmental Authority is necessary or required in

 

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connectionwith the execution and delivery by any Loan Party (or any Subsidiary thereof)of, or the performance by any Loan Party (or any Subsidiary thereof) of itsobligations under, any Loan Document to which it is a party other than (i) suchas have been obtained or made and are in full force and effect, (ii) filingsnecessary to perfect Liens created by the Loan Documents or (iii) filingswith the SEC.

 

**(b)****          ****Compliancewith Laws.**  Each LoanParty and each Subsidiary thereof are in compliance in all material respectswith the requirements of all Laws and all orders, writs, injunctions anddecrees applicable to it or to its properties, except in such instances inwhich:  (i) such requirement of Lawor order, writ, injunction or decree is being contested in good faith byappropriate proceedings diligently conducted; or (ii) the failure tocomply therewith, either individually or in the aggregate, could not reasonablybe expected to have a Material Adverse Effect, subject to limitations as toenforceability which might result from bankruptcy, insolvency, moratorium andother similar laws affecting creditors rights generally to limitations on theavailability of equitable remedies.

 

**SECTION 5.04****         ****BINDING EFFECT.**

 

ThisAgreement has been, and each other Loan Document (when delivered hereunder)will have been, duly executed and delivered by each Loan Party that is partythereto.  This Agreement and each otherLoan Document to which any Loan Party is a party constitute the legal, validand binding obligations of such Loan Party, enforceable against such Loan Partyin accordance with their respective terms.

 

**SECTION 5.05****         ****LITIGATION.**

 

Exceptas specifically disclosed on **Schedule 5.05**,there are no actions, suits, proceedings, claims or disputes pending, or to thebest knowledge of Borrower, threatened or contemplated, at law, in equity, inarbitration or before any Governmental Authority, against any Loan Party or anySubsidiary of any Loan Party that:  (a) purportto affect or pertain to any Loan Document, or any of the transactionscontemplated thereby; or (b) could reasonably be expected to have aMaterial Adverse Effect.  No injunction,writ, temporary restraining order or any order of any nature has been issued byany court or other Governmental Authority purporting to enjoin or restrain theexecution, delivery or performance of this any Loan Document, or directing thatthe transactions provided for therein not be consummated as thereinprovided.  Since the Closing Date, therehas been no change in the status of the any matters disclosed on **Schedule 5.05** that, individually or in the aggregate,has resulted in, or materially increased the likelihood of, a Material AdverseEffect.

 

**SECTION 5.06****         ****NO DEFAULTS.**

 

NoDefault exists or would result from the incurring of any Obligations byBorrower or from the grant and perfection of the Liens upon the Collateral infavor of Administrative Agent.  As of theClosing Date, none of Borrower, any other Loan Party or any Subsidiary of anyLoan Party is in default under or with respect to any Contractual Obligation inany respect that, individually or together with all such defaults, couldreasonably be expected to have a Material Adverse Effect, or that would, ifsuch default had occurred after the Closing Date, create an Event of Defaultunder **Section 8.01(e)**.

 

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**SECTION 5.07****         ****EMPLOYEE BENEFIT PLANS.**

 

**(a)****          ****Compliancewith ERISA Generally.**  As ofthe Closing Date, each Plan is in compliance with the applicable provisions ofERISA, the Code and other federal or state law except to the extent to whichthe failure to so comply could not reasonably be expected to have a MaterialAdverse Effect.  Each Plan which isintended to qualify under subsection 401(a) of the Code has receiveda favorable determination letter from the IRS and, to the best knowledge ofBorrower, nothing has occurred that would cause the loss of suchqualification.  As of the Closing Date,Borrower and each ERISA Affiliate have made all required contributions to anyPlan subject to Section 412 of the Code, and no application for a fundingwaiver or an extension of any amortization period pursuant to Section 412of the Code has been made with respect to any Plan.

 

**(b)****          ****NoActions.**  As of theClosing Date:  (i) there are nopending or, to the best knowledge of Borrower, threatened claims, actions orlawsuits, or action by any Governmental Authority, with respect to any Planthat has resulted or could reasonably be expected to result in a MaterialAdverse Effect; and (ii) there has been no prohibited transaction orviolation of the fiduciary responsibility rules with respect to any Planthat has resulted or could reasonably be expected to result in a MaterialAdverse Effect.

 

**(c)****          ****CertainEvents.**  As of the Closing Date:  (i) no ERISA Event has occurred or isreasonably expected to occur; and (ii) no event or circumstance hasoccurred or exists that, if such event or circumstance had occurred or arisen afterthe Closing Date, would create an Event of Default under **Section 8.01(i)**.

 

**SECTION 5.08****         ****USE OF PROCEEDS.**

 

Borrowerwill use the Letters of Credit and the proceeds of the Loans solely for thepurposes set forth in and as permitted by **Section 6.11**and **Section 7.10**.

 

**SECTION 5.09****         ****TITLE TO PROPERTIES.**

 

EachLoan Party and each Subsidiary thereof have good record and marketable title infee simple to, or valid leasehold interests in, or valid rights to use(including easements) all real property necessary to the ordinary conduct oftheir respective businesses, except for such defects in title as could not,individually or in the aggregate, reasonably be expected to have a MaterialAdverse Effect.  As of the Closing Date,the properties of each Loan Party and each Subsidiary thereof are subject to noLiens other than Permitted Liens.

 

**SECTION 5.10****         ****TAXES.**

 

EachLoan Party and each Subsidiary thereof have filed all Federal and othermaterial tax returns and reports required to be filed, and have paid prior to delinquencyall Federal and other material taxes, assessments, fees and other governmentalcharges levied or imposed upon them or their properties, income or assetsotherwise due and payable, except those that are being contested in good faithby appropriate proceedings timely instituted and diligently conducted and forwhich such Person has set

 

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asideadequate reserves, if any, on its financial statements in accordance withGAAP.  There is no proposed tax assessmentagainst any Loan Party or any Subsidiary thereof that would, if made, have aMaterial Adverse Effect.

 

**SECTION 5.11****         ****FINANCIAL CONDITION.**

 

**(a)****          ****FinancialStatements.**

 

(i)            The AuditedFinancial Statements:  (A) wereprepared in accordance with GAAP consistently applied throughout the periodcovered thereby, except as otherwise expressly noted therein; (B) fairlypresent the consolidated financial condition of Borrower as of the date thereofand its consolidated results of operations for the period covered thereby inaccordance with GAAP consistently applied throughout the period coveredthereby, except as otherwise expressly noted therein; and (C) show, on aconsolidated basis, all material indebtedness and other material liabilities,direct or contingent, of Borrower as of the date thereof, including liabilitiesfor taxes, material commitments and Debt required under GAAP.

 

(ii)           The unauditedconsolidated balance sheet of Borrower July 31, 2010, and the relatedconsolidated statements of income or operations and cash flows for the FiscalPeriod ended on such date:  (i) wereprepared in accordance with GAAP consistently applied throughout the periodcovered thereby, except as otherwise expressly noted therein; and(ii) fairly present the consolidated financial condition of Borrower as ofthe date thereof and their results of operations for the period coveredthereby, subject, in the case of clauses (i) and (ii), to the absence offootnotes and to normal year-end adjustments.

 

**(b)****          ****NoMaterial Adverse Effect.**  Sincethe date of the Audited Financial Statements, there has been no event orcircumstance, either individually or in the aggregate, that has had or couldreasonably be expected to have a Material Adverse Effect.

 

**SECTION 5.12****         ****ENVIRONMENTAL MATTERS.**

 

EachLoan Party conducts in the ordinary course of business a review of the effectof existing Environmental Laws and existing Environmental Claims on itsbusiness, operations and properties, and as a result thereof each Loan Partyhas reasonably concluded that, except as specifically disclosed on **Schedule 5.12**, such Environmental Laws andEnvironmental Claims could not, individually or in the aggregate, reasonably beexpected to have a Material Adverse Effect. Since the date hereof, there has been no change in the status of thematters disclosed on **Schedule 5.12**that,individually or in the aggregate, has resulted in, or materially increased thelikelihood of, a Material Adverse Effect.

 

**SECTION 5.13****         ****MARGIN REGULATIONS; REGULATEDENTITIES.**

 

NeitherBorrower nor any Subsidiary thereof is engaged or will engage, principally oras one of its important activities, in the business of purchasing or carryingmargin stock (within the meaning of Regulation U issued by the FRB), orextending credit for the purpose of purchasing or carrying margin stock.  None of Borrower, any Subsidiary thereof orany Person controlling Borrower is an “investment

 

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company”within the meaning of the Investment Company Act of 1940.  Borrower is not subject to regulation underthe Federal Power Act, any state public utilities code or any other Federal orstate statute or regulation limiting its ability to incur Debt.

 

**SECTION 5.14****         ****SWAP OBLIGATIONS.**

 

NeitherBorrower nor any Subsidiary thereof has incurred any outstanding obligationsunder any Swap Contracts, other than obligations under Swap Contracts expresslypermitted hereby.  Borrower hasvoluntarily entered into each Swap Contract to which it is a party based uponits own independent assessment of its consolidated assets, liabilities andcommitments, in each case as an appropriate means of mitigating and managingrisks associated with such matters, and has not relied on any swap counterpartyor any Affiliate of any swap counterparty in determining whether to enter intoany Swap Contract.

 

**SECTION 5.15****         ****INTELLECTUAL PROPERTY.**

 

Borrowerand each Subsidiary thereof own or are licensed or otherwise have the right touse all of the patents, trademarks, service marks, trade names, copyrights,contractual franchises, authorizations and other rights that are reasonablynecessary for the operation of their respective businesses, except for thosethe failure of which to own or license could not, individually or in theaggregate, reasonably be expected to have a Material Adverse Effect.  The use of such intellectual property byBorrower and its Subsidiaries and the operation of their respective businessesdo not infringe any valid and enforceable intellectual property rights of anyother Person, except to the extent any such infringement could not,individually or in the aggregate, reasonably be expected to have a MaterialAdverse Effect.  No slogan or otheradvertising device, product, process, method, substance, part or other materialnow employed, or now contemplated to be employed, by Borrower or any Subsidiarythereof infringes upon any rights held by any other Person, except to theextent any such infringement could not, individually or in the aggregate,reasonably be expected to have a Material Adverse Effect.  Except as specifically disclosed on **Schedule 5.05**, no claim or litigation regarding any ofthe foregoing is pending or, to Borrower’s knowledge, threatened, and no patent,invention, device, application, principle or any statute, law, rule,regulation, standard or code is pending or, to Borrower’s knowledge, proposed,which could, individually or in the aggregate, reasonably be expected to have aMaterial Adverse Effect.

 

**SECTION 5.16****         ****EQUITY INTERESTS HELD BYBORROWER; EQUITY INTERESTS IN BORROWER.**

 

Asof the Closing Date:  (a) the onlySubsidiaries of Borrower are those listed on **Schedule 5.16**;and (b) Borrower holds no Equity Interests in any other Person other than thosespecifically disclosed on **Schedule 5.16**.  All of the outstanding Equity Interests inBorrower and in each Subsidiary thereof have been validly issued and are fullypaid and nonassessable.

 

**SECTION 5.17****         ****INSURANCE.**

 

Theproperties of each Loan Party and each Subsidiary thereof are insured withfinancially sound and reputable insurance companies that are not Affiliates ofany of the Loan Parties, in such amounts,

 

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withsuch deductibles and covering such risks as are customarily carried bycompanies engaged in similar businesses and owning similar properties inlocalities where such Loan Party or its Subsidiary operates.

 

**SECTION 5.18****         ****COLLATERAL AND COLLATERALDOCUMENTS.**

 

**(a)****          ****Enforceableand Perfected Security Interest.**

 

(i)            The SecurityAgreement creates in favor of the Administrative Agent, for the benefit of theSecured Parties, a legal, valid and enforceable security interest in theCollateral (as defined in the Security Agreement) and the proceeds thereof (the“***Security Interest***”) and (i) whenthe Pledged Collateral (as defined in the Security Agreement) are delivered tothe Administrative Agent together with the proper endorsements, the SecurityInterest therein shall be perfected, (ii) when each financing statement inthe form attached to the Perfection Certificate (each a “***FinancingStatement***”) is filed in the applicable office set forth in **Schedule 5.18**, the Security Interest (other than withrespect to Intellectual Property, as defined in the Security Agreement) shallbe perfected to the extent the Security Interest may be perfected by the filingof a UCC financing statement.

 

(ii)           Upon therecordation of the Security Agreement (or a short-form security agreement inform and substance reasonably satisfactory to Borrower and the AdministrativeAgent) with the United States Patent and Trademark Office and the United StatesCopyright Office, and the filing of each Financing Statement in the officeindicated therein, the Security Interest in the Intellectual Property shall beperfected.

 

(iii)          Each depositaccount control agreement and securities account deposit account controlagreement perfects the Security Interest in each deposit account and securitiesaccount, respectively, subject thereto.

 

**(b)****          ****Truthand Correctness of Representations and Warranties.**  To the best knowledge after due inquiry ofany Responsible Officer of Borrower, all representations and warranties of eachLoan Party in each Collateral Document are true and correct in all materialrespects except to the extent they relate to a prior date.

 

**SECTION 5.19****         ****LABOR RELATIONS.**

 

Thereare no strikes, lockouts or other material labor disputes against Borrower orany Subsidiary thereof, or to Borrower’s knowledge, threatened against oraffecting Borrower or any Subsidiary thereof, and no significant unfair laborpractice complaint is pending against Borrower or any Subsidiary thereof or, tothe knowledge of Borrower, threatened against any of them before anyGovernmental Authority.  Except as setforth on **Schedule 5.19**:  (a) Borrower is not a party to anycollective bargaining agreements or contracts; and (b) no unionrepresentation exists and, to the knowledge of Borrower, no union organizingactivities are taking place.

 

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**SECTION 5.20****         ****SOLVENCY.**

 

Borrower,as well as each Subsidiary thereof, is Solvent.

 

**SECTION 5.21****         ****FULL DISCLOSURE.**

 

Tothe best knowledge after due inquiry of any Responsible Officer of Borrower,none of the representations or warranties made by any Loan Party in the LoanDocuments as of the date such representations and warranties are made or deemedmade, and no statements contained in any exhibit, report, statement orcertificate furnished by or on behalf of any Loan Party in connection with theLoan Documents (including the offering and disclosure materials delivered by oron behalf of any Loan Party to Administrative Agent and Lending Parties (or anyof the foregoing Persons) prior to the Closing Date), contains any untrue statementof a material fact or omits any material fact required to be stated therein ornecessary to make the statements made therein, in light of the circumstancesunder which they are made, not misleading as of the time when made ordelivered; *provided* that with respect to projectedfinancial information, Borrower represents only that such information wasprepared in good faith based upon assumptions believed to be reasonable at thetime.

 

**ARTICLE VIAFFIRMATIVE COVENANTS**

 

Solong as any Lender shall have any Commitment hereunder, any Loan or otherObligation (other than unasserted contingent indemnification obligations andother hedging obligations not related to this Credit Facility) shall remainunpaid or unsatisfied or any Letter of Credit shall remain outstanding:

 

**SECTION 6.01****         ****FINANCIAL STATEMENTS.**

 

Tothe extent not available publicly on EDGAR, Borrower shall deliver toAdministrative Agent a sufficient number of copies for delivery byAdministrative Agent to each Lender, in form and detail satisfactory toAdministrative Agent and Required Lenders:

 

**(a)****          ****AnnualFinancial Statements.**  Assoon as available, but in any event within ninety (90) days after the end ofeach fiscal year of Borrower, a consolidated balance sheet for Borrower and itsSubsidiaries as at the end of such fiscal year, and the related consolidatedstatements of income or operations, shareholders’ equity and cash flows forsuch fiscal year, setting forth, in each case in comparative form, the figuresfor the previous fiscal year, all in reasonable detail and prepared inaccordance with GAAP, such consolidated statements to be audited andaccompanied by a report and opinion of an independent certified publicaccountant of nationally recognized standing reasonably acceptable to Required Lenders,which report and opinion shall be prepared in accordance with generallyaccepted auditing standards and shall not be subject to any “going concern” orlike qualification or exception or any qualification or exception as to thescope of such audit;

 

**(b)****          ****FiscalPeriod Financial Statements.**  As soon as available, but in any event withinforty-five (45) days after the end of each of the first three Fiscal Periods ineach fiscal year, the financial statements filed with the SEC for such FiscalPeriod;

 

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**(c)****          ****Reserved;**

 

**(d)****          ****Forecasts.**  As soon as available, but in any event nolater than the later of forty-five (45) days after the end of each fiscal yearof Borrower or five days following review and approval thereof by the Board ofDirectors (or similar entity) of Borrower, forecasts prepared by the managementof Borrower, in form satisfactory to Administrative Agent and Required Lenders,of consolidated balance sheets and statements of income or operations and cashflows for Borrower and its Subsidiaries for the immediately following fiscalyear (including for the fiscal year immediately following the fiscal year inwhich the Working Capital Maturity Date and/or Floorplan Maturity Date occurs);

 

**(e)**           **BorrowingBase Certificates.**  As soon asavailable, but in any event no later than thirty (30) days after the end ofeach month (or more frequently during the continuance of an Event of Default,upon request of Administrative Agent), a Borrowing Base Certificate prepared asof the last day of such month; and

 

**(f)****           ****Monthly Reports**.  No later than thirty (30) days after the lastday of each month or more frequently during the continuance of an Event ofDefault if the Lender so requires with respect to each Borrower; (i) amonthly trial balance showing Accounts outstanding aged from invoice date asfollows: 1 to 30 days, 31 to 60 days, 61 to 90 days and 91 days or more, (ii) accountspayable, aged from invoice date as follows: 1 to 30 days, 31 to 60 days, 61 to90 days and 91 days or more (iii) a detailed inventory report whichincludes a summary of Inventory by type with a supporting perpetual inventoryreport, a designation as to whether each such item of Inventory is subject to alien other than that of the Administrative Agent, an inventory certificationreport, as at the end of such month, in each case accompanied by suchsupporting detail and documentation as shall be requested by AdministrativeAgent in its reasonable discretion.

 

**SECTION 6.02****         ****CERTIFICATES; OTHER INFORMATION.**

 

Tothe extent not available publically on EDGAR, Borrower shall deliver toAdministrative Agent a sufficient number of copies for Administrative Agent todeliver to each Lender (and, to the extent not also a Lender, Swing Line Lenderand L/C Issuer), in form and detail satisfactory to Administrative Agentand Required Lenders:

 

**(a)****          ****Accountants’Certificate.**  Concurrentlywith the delivery of the financial statements referred to in **Section 6.01(a)**, a certificate of its independentcertified public accountants certifying such financial statements and statingthat, in connection with their audit, nothing came to their attention thatcaused them to believe that Borrower failed to comply with the terms,covenants, provisions or conditions of **Section 6.12**,insofar as such terms, covenants, provisions or conditions relate to financialand accounting matters, but also noting that their audit was not directedprimarily toward obtaining knowledge of or noncompliance with **Section 6.12**;

 

**(b)****          ****ComplianceCertificate.**  Concurrentlywith the delivery of the financial statements referred to in subsections (a) and(b) of **Section 6.01,** a duly completedCompliance Certificate signed by an appropriate Responsible Officer ofBorrower;

 

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**(c)****          ****AdditionalAccountant Reports.**  Promptlyafter any request by Administrative Agent or any Lending Party, copies of anydetailed audit reports, management letters or recommendations submitted to theboard of directors (or the audit committee of the board of directors) ofBorrower by independent accountants in connection with the accounts or books ofBorrower or any Subsidiary thereof, or any audit of any of them;

 

**(d)****          ****EquityInterest Holder Reports and Certain Public Filings.**  Promptly after the same are available, copiesof each annual report, proxy or financial statement or other report orcommunication sent to the holders of Equity Interests of Borrower and copies ofall annual, regular, periodic and special reports and registration statementsthat Borrower may file or be required to file with the Securities and ExchangeCommission under Section 13 or Section 15(d) of the ExchangeAct, and, in each case, not otherwise required to be delivered toAdministrative Agent pursuant hereto;

 

**(e)****          ****DebtHolder Reports.**  Upon requestfrom time to time of Administrative Agent, promptly after the furnishingthereof, copies of any statement or report furnished to any holder of debtsecurities of any Loan Party or any Subsidiary thereof pursuant to the terms ofany indenture, loan or credit or similar agreement that are not otherwiserequired to be furnished to Administrative Agent and Lenders pursuant to **Section 6.01** or any other clause of this **Section 6.02**;

 

**(f)****           ****Materialsfrom Governmental Authorities.**  Promptly, and in any event within fiveBusiness Days after receipt thereof by any Loan Party or any Subsidiarythereof, copies of each material notice or other correspondence received fromany Governmental Authority concerning any investigation or possibleinvestigation or other inquiry by such agency regarding any material financialor other material operational results of any Loan Party or any Subsidiarythereof; and

 

**(g)****          ****AdditionalInformation.**  Promptly,such additional information regarding the business, financial or corporateaffairs of any Loan Party or any Subsidiary thereof or compliance with theterms of the Loan Documents, as Administrative Agent or any Lending Party mayfrom time to time reasonably request.

 

**SECTION 6.03****         ****NOTICES.**

 

Borrowershall promptly notify Administrative Agent and each Lender (and, to the extentnot also a Lender, Swing Line Lender and L/C Issuer) of:

 

**(a)****          ****Defaults.**  The occurrence of any Default;

 

**(b)****          ****MattersInvolving a Material Adverse Effect.**  Any matter that has resulted or couldreasonably be expected to result in a Material Adverse Effect, including anysuch matter arising from:  (i) anybreach or non-performance of, or any default under, a Contractual Obligation ofany Loan Party or any Subsidiary thereof; (ii) any dispute, litigation,investigation, proceeding or suspension between any Loan Party or anySubsidiary thereof and any Governmental Authority; or (iii) thecommencement of, or any material development in, any litigation or proceedingaffecting any Loan Party or any Subsidiary thereof, including pursuant to anyapplicable Environmental Laws;

 

**(c)****          ****ERISAEvents.**  The occurrence of any ERISAEvent;

 

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**(d)****          ****CertainAcquisitions.**  AnyAcquisition, or the incurrence of any Contractual Obligations with respect toany Acquisition, by Borrower or any Subsidiary thereof, which notice shallidentify the related Acquiree(s), the anticipated or actual closing date ofsuch Acquisition and the aggregate cash and non-cash consideration (includingassumption of Debt) to be paid or paid in connection with such Acquisition;

 

**(e)****          ****CertainAsset Sales.**  Any AssetSale, or the incurrence of any Contractual Obligations with respect to anyAsset Sale, by Borrower or any Subsidiary thereof if the aggregate cash andnon-cash consideration (including assumption of Debt) in connection with suchAsset Sale is (or could reasonably be expected to become) $5,000,000 or more,which notice shall identify the related purchaser(s), the anticipated closingdate of such Asset Sale and the aggregate cash and non-cash consideration(including assumption of Debt) to be paid in connection with such Asset Sale;

 

**(f)****           ****SwapContracts.**  Uponreasonable request from time to time of Administrative Agent, the Swap TerminationValues, together with a description of the method by which such values weredetermined, relating to any then-outstanding Swap Contracts to which any LoanParty is a party;

 

**(g)****          ****LaborControversies.**  Any materiallabor controversy resulting in or to Borrower’s knowledge threatening to resultin any strike, work stoppage, boycott, shutdown or other labor disruptionagainst or involving any Loan Party or any Subsidiary thereof; and

 

**(h)****          ****FinancialMatters.**  Any materialchange in accounting policies or financial reporting practices by Borrower orany Subsidiary thereof.

 

Eachnotice pursuant to this **Section 6.03**shallbe accompanied by a statement of a Responsible Officer of Borrower settingforth details of the occurrence referred to therein and stating what action, ifany, Borrower (or the other applicable Person) has taken or proposes to takewith respect thereto (if applicable). Each notice given pursuant to **Section 6.03(a) **shalldescribe with particularity any and all provisions of this Agreement and anyother Loan Document that have been (or could reasonably be expected to be)breached or violated.

 

**SECTION 6.04****         ****PAYMENT OF CERTAIN OBLIGATIONS.**

 

Borrowershall and shall cause each of its Subsidiaries to pay and discharge prior todelinquency all material tax liabilities, assessments and governmental chargesor levies upon their respective properties, unless the same are being contestedin good faith by appropriate proceedings timely instituted and diligentlyconducted by the applicable Person and such Person has set aside adequatereserves, if any, on its financial statements in accordance with GAAP.

 

**SECTION 6.05****         ****PRESERVATION OF EXISTENCE, ETC.**

 

Borrowershall and shall cause each of its Subsidiaries to:  (a) preserve, renew and maintain in fullforce and effect their respective legal existence and good standing under theLaws of the jurisdiction of their organization except in a transactionpermitted by **Section 7.04** or **Section 7.05**; (b) take all reasonable action tomaintain all rights, privileges, permits, licenses and franchises necessary ordesirable

 

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inthe normal conduct of their respective businesses, except to the extent thatthe failure to do so could not reasonably be expected to have a MaterialAdverse Effect; and (c) preserve or renew all of their respectiveregistered patents, trademarks, trade names and service marks and otherintellectual property, the non-preservation of which could reasonably beexpected to have a Material Adverse Effect.

 

**SECTION 6.06****         ****MAINTENANCE OF PROPERTIES.**

 

Borrowershall and shall cause each of its Subsidiaries to:  (a) maintain, preserve and protect allof their respective material properties and equipment necessary to theoperation of their respective businesses in good working order and condition,ordinary wear and tear excepted; and (b) make all necessary repairsthereto and renewals and replacements thereof; in each of the foregoingclauses (a) and (b), except where the failure to do so could not,individually or in the aggregate, reasonably be expected to have a MaterialAdverse Effect.

 

**SECTION 6.07****         ****MAINTENANCE OF INSURANCE.**

 

(a)           Borrower shall at all timesmaintain insurance with insurers acceptable to Administrative Agent, in suchamounts and on such terms (including deductibles) and against such risks asAdministrative Agent in its sole discretion may require from time to time andincluding, as applicable and without limitation, business interruptioninsurance (including force majeure coverage), hazard coverage on an “all risks”basis for all tangible Collateral, theft and physical damage coverage forCollateral consisting of motor vehicles, commercial general liability and suchother risks and in such amounts as the Administrative Agent may reasonably request.  All insurance policies must contain anappropriate lender’s interest endorsement or clause, and name AdministrativeAgent, on behalf of itself and Lenders as an additional insured.

 

(b)           Borrower shall provide toAdministrative Agent, in a form and substance reasonably acceptable toAdministrative Agent, endorsements to (i) all hazard and businessinterruption insurance naming Administrative Agent, on behalf of itself andLenders as loss payee and (ii) all general liability and other liabilitypolicies naming Administrative Agent, on behalf of itself and Lenders asadditional insured.

 

**SECTION 6.08****         ****COMPLIANCE WITH LAWS.**

 

Borrowershall and shall cause each of its Subsidiaries to comply in all materialrespects with the requirements of all Laws and all orders, writs, injunctionsand decrees applicable to them or to their respective properties or businesses,except in such instances in which (a) such requirement of Law or order,writ, injunction or decree is being contested in good faith by appropriate proceedingstimely instituted and diligently conducted; or (b) the failure to complytherewith could not reasonably be expected to have a Material Adverse Effect.

 

**SECTION 6.09****         ****BOOKS AND RECORDS.**

 

Borrowershall and shall cause each of its Subsidiaries to:  (a) maintain proper books of record andaccount, in which full, true and correct (in all material respects) entries inconformity with GAAP

 

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consistentlyapplied are made of all financial transactions and matters involving theirrespective properties and businesses; and (b) maintain such books ofrecord and account in material conformity with all applicable requirements ofany Governmental Authority having regulatory jurisdiction over them, as thecase may be.

 

**SECTION 6.10****         ****INSPECTION RIGHTS.**

 

(a)           Borrower shall and shallcause each of its Subsidiaries to permit representatives and independentcontractors of Administrative Agent and each Lender to visit and inspect any oftheir respective properties, to examine their corporate, financial andoperating records, and make copies thereof or abstracts therefrom, and todiscuss their respective affairs, finances and accounts with their respectivedirectors, officers, members, managers and independent public accountants, atsuch reasonable times during normal business hours and as often as may bereasonably desired, upon reasonable advance notice to Borrower; *provided* that, when an Event of Default exists,Administrative Agent or any Lender (or any of their respective representativesor independent contractors) may do any of the foregoing at the expense ofBorrower at any time during normal business hours and without advance noticeand as many times as Administrative Agent or any Lender may require.

 

(b)           Borrower shall and shallcause each of its Subsidiaries to permit representatives and independentcontractors of Administrative Agent and each Lender to visit and inspect any oftheir respective properties, to examine and inspect any Collateral, Inventoryor any other property of the Borrower at any time during ordinary businesshours.

 

**SECTION 6.11****         ****USE OF PROCEEDS.**

 

Borrowershall use the proceeds of the Working Capital Borrowings solely:  (a) on the Closing Date, to repay infull all Debt outstanding under or in respect of the Existing Facilities to bePaid Off; (b) to pay the costs associated with preparing and closing thisCredit Agreement; and (c) otherwise, for working capital and generalcorporate purposes not in contravention of any Law or of any Loan Document.  Borrower shall use the proceeds of theFloorplan Borrowings solely to provide working capital to finance Inventory andEquipment held by a Loan Party for sale or lease to others.

 

**SECTION 6.12****         ****FINANCIAL COVENANTS.**

 

**(a)****          ****ConsolidatedLeverage Ratio.**  Borrowershall maintain, as at the end of each Fiscal Period ending after the ClosingDate, a Consolidated Leverage Ratio not greater than 2.50 : 1.00.

 

**(b)****          ****ConsolidatedFixed Charge Coverage Ratio.**  Borrower shall maintain, as at the end ofeach Fiscal Period ending after the Closing Date, a Consolidated Fixed ChargeCoverage Ratio not less than 1.25 : 1.00 for the then trailing twelve monthperiod.

 

**SECTION 6.13****    ****COLLATERAL VALUATIONS; COLLATERALAUDITS.**

 

**(a)**           Borrower shalland shall cause each of its Subsidiaries to permit Administrative Agent toobtain appraisals or other valuations of Collateral from time to time, in formand substance acceptable to

 

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AdministrativeAgent and at Borrower’s expense; *provided* asof the Closing Date, Administrative Agent or a third party designated byAdministrative Agent shall conduct at least an annual collateral exam once eachcalendar year and inventory inspections no less than each quarter.

 

**(b)**           Borrower shalland shall cause each of its Subsidiaries to permit representatives andindependent contractors of Administrative Agent to audit and examine theirbooks, records, journals, orders, receipts and any correspondence and otherdata relating to the Collateral or the business of Borrower and itsSubsidiaries.

 

**SECTION 6.14****         ****FURTHER ASSURANCES.**

 

Promptlyupon the written request by Administrative Agent or Required Lenders, Borrowershall and shall cause each of its Subsidiaries to take such further acts(including the acknowledgement, execution, delivery, recordation, filing andregistering of documents) as may reasonably be required from time to timeto:  (a) carry out more effectivelythe purposes of this Agreement or any other Loan Document; (b) subject tothe Liens created by any of the Collateral Documents any of the properties,rights or interests covered by any of the Collateral Documents or any otherproperties, rights or interests (including real property) acquired by Borroweror any Subsidiary thereof following the Closing Date; (c) perfect andmaintain the validity, effectiveness and priority of the Liens created orintended to be created by any of the Loan Documents; and (d) betterassure, convey, grant, assign, transfer, preserve, protect and confirm to AdministrativeAgent and Lending Parties the rights, remedies and privileges existing orgranted or now or hereafter intended to be granted to such Persons under anyLoan Document or other document executed in connection therewith.  Without limiting the generality of theforegoing, Borrower hereby agrees that: (A) withinten (10) Business Days after any Person becomes a Subsidiary of Borrowerfollowing the Closing Date, Borrower shall cause such Subsidiary to(1) enter into a Joinder Agreement or otherwise deliver a Guaranty; and(2) enter into such Collateral Documents as shall be required byAdministrative Agent so as to create, perfect and protect a Lien in favor ofAdministrative Agent in all of the properties of such Person which constituteCollateral; (B) within thirty (30)days after any Person becomes a Foreign Subsidiary following the Closing Date,Borrower shall cause each Loan Party owning Equity Interests therein to pledge100% of the non-voting and 65% of the voting Equity Interests therein pursuantto a Foreign Pledge Agreement, in form and substance satisfactory to theAdministrative Agent and (C) inconnection with the matters described in clauses (A) and (B) above,Borrower shall deliver or cause to be delivered to the Administrative Agent,such opinions, certificates and other documents as the Administrative Agentshall require.

 

**SECTION 6.15**     **LANDLORDS’ AGREEMENTS, MORTGAGEEAGREEMENTS, BAILEE LETTERS; REAL ESTATE PURCHASES**.

 

Within30 days of the Closing Date, Borrower shall obtain a landlord’s agreement, mortgageeagreement or bailee letter, as applicable, from the lessor of each leasedproperty, mortgagee of owned property or bailee with respect to 90% of Borrower’slocations or for locations where not less that 90% of the Collateral which isEquipment and Inventory is stored or located, which agreement or letter shallcontain a waiver or subordination of all Liens or claims that the landlord,mortgagee or bailee may assert against the Collateral at that location, andshall otherwise be reasonably satisfactory in form and substance acceptable toAdministrative Agent.  As to any location for which a waiver is notdelivered pursuant to the preceding sentence, Borrower shall use itscommercially reasonable best efforts to obtain

 

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suchwaivers, in the form and substance set forth in the preceding sentence, foreach other location where Collateral is stored or located.  With respectto such locations or warehouse space leased or owned as of the Closing Date andthereafter, if Administrative Agent has not received a landlord or mortgageeagreement or bailee letter as of 30 days after the Closing Date (or, if later,as of the date such location is acquired or leased), Borrowers’ Collateral atthat location shall, in Administrative Agent and Required Lender’s discretion,be excluded from the Floorplan Borrowing Base or Working Capital BorrowingBase, as applicable, or be subject to such reserves as may be established byAdministrative Agent and Required Lender in their s reasonable credit judgment(which exclusion shall be the sole remedy for failure to meet Borrower’sobligations under this **Section 6.15**).

 

**SECTION 6.16**     **CONTROL AGREEMENTS**.

 

Within60 days of the Closing Date, Borrower shall obtain a control agreement in favorof Administrative Agent and in form and substance acceptable to AdministrativeAgent with respect to 80% of the bank accounts maintained by Borrower.  As to any bank account for which a controlagreement is not delivered pursuant to the preceding sentence or for bankaccounts opened by Borrower after the Closing Date, Borrower shall use itscommercially reasonable best efforts to obtain such control agreements, in formand substance to Administrative Agent.

 

**ARTICLE VIINEGATIVE COVENANTS**

 

Solong as any Lender shall have any Commitment hereunder, any Loan or otherObligation (other than unasserted contingent indemnification obligations andother hedging obligations not related to this Credit Facility) hereunder shallremain unpaid or unsatisfied or any Letter of Credit shall remain outstanding,Borrower shall not and shall not permit any Subsidiary of Borrower directly orindirectly to:

 

**SECTION 7.01****         ****LIENS.**

 

Create,incur, assume or suffer to exist any Lien upon any of its property, assets orrevenues, whether now owned or hereafter acquired, other than any of thefollowing (collectively, “***Permitted Liens***”):

 

**(a)****          **any Liencreated under any Loan Document;

 

**(b)****          **any Lienexisting on the date hereof and listed on **Schedule 7.01**and any renewals or extensions thereof, *provided*that:  (i) the property coveredthereby is not changed; (ii) the amount secured or benefited thereby isnot increased; (iii) the direct or any contingent obligor with respectthereto is not changed; and (iv) and any renewal or extension of theobligations secured or benefited thereby is permitted by **Section 7.03(b)**;

 

**(c)****          **any Lien fortax liabilities, assessments and governmental charges or levies not yet due orto the extent that non-payment thereof is permitted by **Section 6.04**;*provided* that no notice of lien has beenfiled or recorded under the Code;

 

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**(d)****          **any landlord’s,grower’s, supplier’s, producer’s, carrier’s, warehouseman’s, mechanic’s,materialman’s, repairman’s or other like Lien arising in the ordinary course ofbusiness that is not overdue for a period of more than thirty days or that isbeing contested in good faith and by appropriate proceedings timely institutedand diligently conducted, if adequate reserves with respect thereto, if any, inaccordance with GAAP are set aside on the financial statements of theapplicable Person;

 

**(e)****          **any pledge ordeposit in the ordinary course of business in connection with workers’compensation, unemployment insurance and other social security legislation,other than any Lien imposed by ERISA;

 

**(f)****           **any deposit tosecure the performance of bids, trade contracts or leases (other than Debt),statutory obligations, surety bonds (other than bonds related to judgments orlitigation), performance bonds and other obligations of a like nature, in eachcase incurred in the ordinary course of business;

 

**(g)****          **any lease, sublease,easement, right-of-way, encroachment, restriction or other similar encumbranceaffecting real property that, when aggregated with all other such Liens, is notsubstantial in amount, and that does not in any case materially detract fromthe value of the property subject thereto or materially interfere with theordinary conduct of the business of the applicable Person;

 

**(h)****          **any Liensecuring a judgment for the payment of money not constituting an Event ofDefault under **Section 8.01(h) **orsecuring an appeal or other surety bond related to any such judgment;

 

**(i)****           **any Lienexisting on any property prior to the acquisition thereof by Borrower or anySubsidiary thereof or existing on any property of any Person that becomes aSubsidiary of Borrower after the date hereof prior to the time such Personbecomes a Subsidiary of Borrower; *provided*that:  (i) such Lien is not createdin contemplation of or in connection with such acquisition or such Personbecoming a Subsidiary of Borrower, as the case may be; (ii) such Lienshall not apply to any other property or assets of Borrower or any Subsidiarythereof; and (iii) such Lien shall secure only those obligations which itsecures on the date of such acquisition or the date such Person becomes aSubsidiary of Borrower, as the case may be;

 

**(j)****           **any Liensecuring obligations in respect of a capital lease on the assets subject tosuch lease; *provided* that such capital lease isotherwise permitted hereunder;

 

**(k)****          **any Lienarising solely by virtue of any statutory or common law provision relating tobanker’s liens, rights of set-off or similar rights and remedies as to depositaccounts or other funds maintained with a creditor depository institution; *provided* that: (i) such deposit account is not a dedicated cash collateral accountand is not subject to restrictions against access by Borrower or any Subsidiarythereof in excess of those set forth by regulations promulgated by the FRB; and(ii) such deposit account is not intended by Borrower or any Subsidiarythereof to provide collateral to the depository institution;

 

**(l)****           **any Liensecuring Debt permitted under:  (i) **Section 7.03(c) **(but only to the extent a Lien isotherwise permitted hereunder for the underlying Debt); or (ii) **Section 7.03(d)**;

 

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**(m)****         **the right of alicensee under a license agreement entered into by Borrower or any Subsidiarythereof, as licensor, in the ordinary course of business for the use ofintellectual property or other intangible assets of Borrower or any suchSubsidiary; *provided* that, in the case of any suchlicense granted by Borrower or any such Subsidiary on an exclusive basis:  (i) such Person shall have determined inits reasonable business judgment that such intellectual property or otherintangible assets are no longer useful in the ordinary course of business;(ii) such license is for the use of intellectual property or otherintangible assets in geographic regions in which Borrower or any Subsidiarythereof does not have material operations or in connection with theexploitation of any product not then produced or planned to be produced byBorrower or any Subsidiary thereof; (iii) such license is granted inconnection with a transaction otherwise permitted by this Agreement in which a thirdparty acquires the right to manufacture or sell any product covered by suchintellectual property or other intangible assets from Borrower or suchSubsidiary; *provided further* that, in the case ofclauses (ii) and (iii) of this subsection (m), Borrower orsuch Subsidiary has determined that it is in its best economic interest togrant such license, or (iv) such license is for use in connection withfinancing provided for the benefit of Borrower’s or its Subsidiaries’customers;

 

**(n)****          **any Liensecuring Debt permitted under **Section 7.03(f)(iii)**;*provided* that:  (i) any such Lien does not at any timeencumber any property other than the property financed by the related Debt andthe related products and proceeds thereof; and (ii) the Debt securedthereby does not exceed the cost or fair market value, whichever is lower, ofthe property being acquired on the date of the acquisition thereof;

 

**(o)****          **any Liensecuring Permitted Shortline Debt;

 

**(p)****          **any Liensecuring Permitted Subordinated Debt; and

 

**(q)****          **any Lien securingPermitted Floorplan Debt.

 

**SECTION 7.02****         ****INVESTMENTS.**

 

Makeany Investments, except:

 

**(a)****          **Investments incash and Cash Equivalents; *provided* thatthe aggregate amount thereof outstanding at any time shall not exceed$10,000,000.00, unless the excess thereof is deposited with AdministrativeAgent or invested in cash or other Cash Equivalents for which Borrower or suchSubsidiary shall have provided evidence satisfactory to Administrative Agentthat Administrative Agent shall have a perfected, first priority securityinterest in such Collateral;

 

**(b)****          **Investmentsarising from transactions by Borrower or any Subsidiary thereof with customersor suppliers in the ordinary course of business, including Investments(including debt obligations) received in connection with the bankruptcy orreorganization of customers and suppliers and in settlement of delinquentobligations of, and other disputes with, customers or suppliers arising in theordinary course of business;

 

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**(c)****          **advances toofficers, directors, employees, shareholders, partners or members of Borroweror any Subsidiary thereof for travel, entertainment, relocation and analogousordinary business purposes in a maximum aggregate amount at any time outstandingnot to exceed $500,000.

 

**(d)****          **(i) Investmentsof Borrower in any Subsidiary Guarantor; (ii) Investments of anySubsidiary Guarantor in any other Subsidiary Guarantor; (iii) Investmentsof any Subsidiary in Borrower; (iv) Investments of Borrower or anywholly-owned Subsidiary thereof consisting of Equity Interests disclosed on **Schedule 5.16**; and (v) Investments permitted under**Section 7.03(k)**.

 

**(e)****          **any PermittedAcquisition;

 

**(f)****           **Investmentsmade for the benefit of employees of Borrower or any Subsidiary thereof for thepurposes of deferred compensation;

 

**(g)****          **Guaranteespermitted by **Section 7.03(c)**;

 

**(h)****          **Investmentsconsisting of Swap Contracts permitted by **Section 7.03(d)**;

 

**(i)****           **Investmentsconsisting of Capital Expenditures permitted by **Section 7.07**;

 

**(j)****           **Investmentsexisting on the date hereof listed on **Schedule 7.02**;and

 

**(k)****          **Otherinvestments in an aggregate amount outstanding at any time not to exceed$10,000,000.

 

**SECTION 7.03****         ****DEBT.**

 

Create,incur, assume or suffer to exist any Debt, except:

 

**(a)****          **Debt under theLoan Documents;

 

**(b)****          **Debtoutstanding on the date hereof and listed on **Schedule 7.03**and any refinancings, refundings, renewals or extensions thereof; *provided* that: (i) the amount of such Debt is not increased at the time of suchrefinancing, refunding, renewal or extension except by an amount equal to areasonable premium or other reasonable amount paid, and fees and expensesreasonably incurred, in connection with such refinancing and by an amount equalto any existing commitments unutilized thereunder; and (ii) the termsrelating to principal amount, amortization, maturity, collateral (if any) andsubordination (if any), and other material terms taken as a whole, of any suchrefinancing, refunding, renewing or extending Debt, and of any agreemententered into and of any instrument issued in connection therewith, are no lessfavorable in any material respect to the Loan Parties or Lenders than the termsof any agreement or instrument governing the Debt being refinanced, refunded,renewed or extended and the interest rate applicable to any such refinancing,refunding, renewing or extending Debt does not exceed the then applicablemarket interest rate;

 

**(c)****          **Guarantees byBorrower or any Subsidiary thereof of Debt (other than Debt under the LoanDocuments) otherwise permitted hereunder of Borrower or any wholly-ownedSubsidiary thereof;

 

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**(d)****          **Swap Contractssolely to the extent such Swap Contracts: (i) are (or were) entered into by such Person in the ordinarycourse of business for the purpose of directly mitigating risks associated withliabilities, commitments, investments, assets, or property held or reasonablyanticipated by such Person, or changes in the value of securities issued bysuch Person, and not for purposes of speculation or taking a “market view”; and(ii) do not contain any provision exonerating the non-defaulting partyfrom its obligation to make payments on outstanding transactions to thedefaulting party;

 

**(e)****          **(i) withoutduplication, existing unsecured Debt, or secured to the extent permitted under **Section 7.01(i)**, of an Acquiree outstanding at the timeof the Acquisition of such Acquiree otherwise permitted under **Section 7.02(e)**; *provided* thatsuch Debt is not created in contemplation of or in connection with suchAcquisition or such Person becoming a Subsidiary, as the case may be; and(ii) without duplication, unsecured Debt incurred by Borrower or anySubsidiary thereof in connection with any Acquisition otherwise permitted under**Section 7.02(e)**,****consisting of Debt owed to the seller(s) in aPermitted Acquisition representing the deferred purchase price for suchAcquisition;

 

**(f)****           **Debt in respectof:  (i) capital leases;(ii) Synthetic Lease Obligations; and (iii) purchase moneyobligations for fixed or capital assets within the limitations set forth in **Section 7.01(n)**;

 

**(g)****          **PermittedShortline Debt;

 

**(h)****          **PermittedSubordinated Debt;

 

**(i)****           **Debt subject toan Intercreditor Agreement acceptable to Administrative Agent and which is (i) afloorplan facility from CNH Capital America, LLC and (ii) floorplanfacility from Agricredit Acceptance, LLC not to exceed $125 million (or areplacement thereof).

 

**(j)****           **Debt in respectof:  (i) workers’ compensationclaims or obligations in respect of health, disability or other employeebenefits; (ii) property, casualty or liability insurance orself-insurance; (iii) completion, bid, performance, appeal or surety bondsissued for the account of Borrower or any Subsidiary thereof; or (iv) bankers’acceptances and other similar obligations not constituting Debt for borrowedmoney; in each of the foregoing cases, to the extent incurred in the ordinarycourse of business;

 

**(k)**           IntercompanyDebt of the Borrower or any Subsidiary owing to and held by the Borrower or anySubsidiary; *provided* that (i) if the Borroweror any Subsidiary Guarantor is the obligor on such Debt and any Subsidiary(other than a Subsidiary Guarantor) is the obligee thereof, such Debt must beunsecured and expressly subordinated to the prior payment in full in cash ofall Obligations (including, with respect to any Subsidiary Guarantor, itsobligations under **Section 10.14**,and (ii) Debt owed to the Borrower or any Subsidiary Guarantor must beevidenced by an unsubordinated promissory note pledged to the AdministrativeAgent under the applicable Collateral Document;

 

**(l)****           **Unsecured Debtnot otherwise permitted under subsections (a) through (f) inclusiveof this **Section 7.03** in an aggregateoutstanding principal amount not in excess of $5,000,000 but only to the extentthe incurrence or maintenance of such Debt would not otherwise result in anEvent of Default; or

 

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(m)          Guarantees in connectionwith private label credit cards of the Borrower’s customers and lease residualsin an aggregate amount not to exceed $5,000,0000.

 

**SECTION 7.04****         ****FUNDAMENTAL CHANGES.**

 

**(a)****          **Engage in anymaterial line of business substantially different from those lines of businessconducted by Borrower and its Subsidiaries on the date hereof or any businesssubstantially related or incidental thereto regardless of geographic location;or

 

**(b)****          **Merge,dissolve, liquidate, consolidate with or into another Person, or Dispose of(whether in one transaction or in a series of transactions) all orsubstantially all of its assets (whether now owned or hereafter acquired) to orin favor of any Person, except that:

 

(i)            any Subsidiaryof Borrower may merge with: (A) Borrower, *provided* thatBorrower shall be the continuing or surviving Person; or (B) any one ormore other Subsidiaries of Borrower, *provided* that,when any wholly-owned Subsidiary of Borrower is merging with another Subsidiaryof Borrower, the wholly-owned Subsidiary of Borrower shall be the continuing orsurviving Person;

 

(ii)           any Subsidiaryof Borrower may Dispose of all or substantially all of its assets (uponvoluntary liquidation or otherwise) to Borrower or to another Subsidiary ofBorrower; *provided* that if the transferor in sucha transaction is a wholly-owned Subsidiary of Borrower, then the transfereemust either be Borrower or a wholly-owned Subsidiary of Borrower; and

 

(iii)          Borrower or anySubsidiary thereof may consummate any Acquisition permitted under **Section 7.02(e)**; or

 

**(c)****          **With respect toany Debt where the total amount of such Debt exceeds $5,000,000.00 (as to suchDebt and not in the aggregate), other than Debt arising under the LoanDocuments or in connection with buyback obligations of equipment in theordinary course of business and other than with respect to Permitted ShortlineDebt and Permitted Floorplan Debt****(unlessotherwise provided in any Subordination Agreement or Intercreditor Agreementapplicable thereto), (i) make any voluntary, optional payment orprepayment on account of, or optional redemption or acquisition for value ofany portion of, any such Debt, provided that in the case of Debt permittedunder **Section 7.03(e)**, any such paymentsor prepayments may be made on such Debt within 90 days after the closing of therelated Acquisition; or (ii) otherwise agree to amend, modify or otherwisealter: (A) the payment terms (including any provisions regarding interestrates, principal or interest payment or prepayment amounts, total principalamounts or similar or related terms and provisions) of or subordinationprovisions respecting any such Debt (including Permitted Subordinated Debt); or(B) any other provision of such Debt (including Permitted SubordinatedDebt) except to the extent that:  (1) noDefault exists at the time or results by virtue of any such amendment,modification or other alteration; or (2) such amendment, modification orother alternation could not reasonably be expected to have a Material AdverseEffect.

 

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**SECTION 7.05****         ****DISPOSITIONS.**

 

Makeany Disposition or enter into any agreement to make any Disposition, except:

 

**(a)****          **Dispositions ofused, obsolete, surplus or worn out property, whether now owned or hereafteracquired, in the ordinary course of business and the abandonment or otherDisposition of intellectual property that is, in the reasonable judgment ofBorrower, no longer economically practicable to maintain or useful in theconduct of the business of Borrower and its Subsidiaries, taken as a whole;

 

**(b)****          **Dispositions ofinventory in the ordinary course of business;

 

**(c)****          **Dispositions ofequipment or real property to the extent that: (i) such property is exchanged for credit against the purchaseprice of similar replacement property; or (ii) the proceeds of suchDisposition are reasonably promptly applied to the purchase price of suchreplacement property;

 

**(d)****          **Dispositions ofproperty by Borrower or any Subsidiary thereof to Borrower or to a wholly-ownedSubsidiary of Borrower; *provided* that,if the transferor of such property is a Guarantor, the transferee thereof mustbe Borrower or a Guarantor;

 

**(e)****          **Dispositionspermitted by **Section 7.04(b)(i) **or **Section 7.04(b)(ii)**, or Dispositions of Investmentspermitted under **Section 7.02(j) **or under**Section 7.02(k)**;

 

**(f)****           **Dispositions consistingof sale and leaseback transactions which (i) are completed on arms-lengthterms, (ii) for fair market value and (iii) do not exceed$10,000,0000 for a transaction or series of related transactions, or$20,000,000 in the aggregate in a calendar year;

 

**(g)**           (i) theunwinding of any Swap Contract; (ii) to the extent permitted hereunder,Restricted Payments; and (iii) to the extent permitted hereunder andotherwise constituting Dispositions, Investments;

 

**(h)**           Dispositions ofcash and Cash Equivalents; and

 

**(i)**            Dispositions ofaccounts receivable in connection with the compromise, settlement or collectionthereof in the ordinary course of business;

 

*provided* that anyDisposition pursuant to any of the foregoing subsections of this **Section 7.05**shall be for not less than fair marketvalue.

 

**SECTION 7.06****         ****RESTRICTED PAYMENTS.**

 

Declareor make, directly or indirectly, any Restricted Payment, or incur anyobligation (contingent or otherwise) to do so, except that:  (a) each Subsidiary may make RestrictedPayments to Borrower and to wholly-owned Subsidiaries (and, in the case of aRestricted Payment by a non-wholly-owned Subsidiary, to Borrower and anySubsidiary and to each other owner of Equity Interests of such Subsidiary on apro rata basis based on their relative ownership interests); (b) Borrowerand each Subsidiary may declare and make dividend payments or otherdistributions payable solely in 

 

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commonEquity Interests of such Person; (c) Borrower and each Subsidiary maypurchase, redeem or otherwise acquire shares of its common Equity Interests orwarrants or options to acquire any such common Equity Interests with theproceeds received from the substantially concurrent issue of new shares of itscommon Equity Interests; (d) so long as no Default or Event of Defaultexists prior to or immediately following such action or otherwise results fromsuch action, Borrower may declare or pay cash dividends to its holders ofEquity Interests in an amount not to exceed 50% of Consolidated Net Income forthe then trailing four (4) quarters; and (e) in lieu of issuing stockto participants in the Borrower’s restricted stock plan, pay the associated taxliability with other stock issued.

 

**SECTION 7.07****         ****CAPITAL EXPENDITURES.**

 

Make(whether in one transaction or a series of transactions) Capital Expendituresin an aggregate amount for Borrower and its Subsidiaries in excess of:  (a) $9,000,000 for the period from theClosing Date through the end of the fiscal year 2011; and (b) with respectto any fiscal year thereafter, $18,000,000; *provided*thatthe amount of Capital Expenditures permitted to be made by Borrower and itsSubsidiaries hereunder during any fiscal year commencing with fiscal year 2011shall be subject to increase by an amount equal to the lesser of:  (i) the difference between the maximumamount of Capital Expenditures permitted for the previous fiscal year (withoutgiving effect to any increase thereto by virtue of this proviso) and theaggregate amount of all Capital Expenditures actually made during such previousfiscal year and (ii) $5,000,000.

 

**SECTION 7.08****         ****TRANSACTIONS WITH AFFILIATES.**

 

Enterinto any transaction of any kind with any Affiliate of Borrower, irrespectiveof whether in the ordinary course of business, other than on fair andreasonable terms substantially as favorable to Borrower or a Subsidiary ofBorrower as would be obtainable by such Person at the time in a comparable arm’s-lengthtransaction with a Person other than an Affiliate, *provided*that the foregoing restriction shall not apply to:  (a) transactions between or amongBorrower and any Guarantor or between or among Guarantors; (b) RestrictedPayments permitted hereunder; and (c) Guarantees permitted by **Section 7.03(c)**.

 

**SECTION 7.09****         ****BURDENSOME AGREEMENTS.**

 

Enterinto any Contractual Obligation (other than this Agreement or any other LoanDocument) that:  (a) limits theability:  (i) of any Subsidiary ofBorrower to make Restricted Payments to Borrower or to otherwise transferproperty to Borrower; (ii) of any Subsidiary of Borrower to Guarantee theDebt of Borrower; or (iii) of Borrower or any Subsidiary thereof tocreate, incur, assume or suffer to exist Liens on property of such Person; *provided* that this subclause (iii) shall not prohibitany negative pledge incurred or provided in favor of any holder of Debtpermitted under **Section 7.03(b), Section 7.03(e),Section 7.03(g), Section 7.03(h) **and**Section 7.03(f) **solely to the extent that anysuch negative pledge relates to the property financed by or the subject of suchDebt; or (b) requires the grant of a Lien to secure an obligation of suchPerson if a Lien is granted to secure another obligation of such Person.

 

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**SECTION 7.10****         ****USE OF PROCEEDS.**

 

Usethe proceeds of any Credit Extension, whether directly or indirectly, andwhether immediately, incidentally or ultimately, to purchase or carry marginstock (within the meaning of Regulation U of the FRB) or to extend creditto others for the purpose of purchasing or carrying margin stock or to refundindebtedness originally incurred for such purpose.

 

**SECTION 7.11****         ****CERTAIN GOVERNMENTAL REGULATIONS.**

 

Borrowerwill not, and will not permit any Subsidiary to, (a) be or become subjectat any time to any law, regulation, or list of any government agency (includingthe United States Office of Foreign Asset Control list) that prohibits orlimits any Lender from making any loans or extension of credit (including theLoans and the Letters of Credit) to any Loan Party or from otherwise conductingbusiness with any Loan Party, or (b) fail to provide documentary and otherevidence of any Loan Party’s identity as may be requested by any Lender or theL/C Issuer at any time to enable such Lender or the L/C Issuer to verify anyLoan Party’s identity or to comply with any applicable law or regulation,including Section 326 of the Act.

 

**SECTION 7.12****         ****AMENDMENT OF MATERIAL DOCUMENTS.**

 

Borrowerwill not, and will not permit any of the Subsidiaries to, amend, modify orwaive any of its rights under (a) any material agreements, contracts orlicenses or (b) its Organizational documents, other than in each caseamendments, modifications or waivers that could not reasonably be expected tomaterially adversely affect the Administrative Agent or the Lender Parties; *provided* to the extent requested by the Administrative Agentfor time to time, the Borrower shall deliver or cause to be delivered to theAdministrative Agent and each Lender a copy of each such amendment, modificationor waiver promptly after the execution and delivery thereof.

 

**SECTION 7.13****         ****DISQUALIFIED EQUITY INTERESTS.**

 

Borrowerwill not, and will not permit any Subsidiary to, (a) issue anyDisqualified Equity Interests, or (b) be or become liable in respect of anyobligation (contingent or otherwise) to purchase, redeem, retire, acquire ormake any other payment in respect of any Equity Interests of Borrower or anySubsidiary, except as permitted under **Section 7.06**.

 

**SECTION 7.14****         ****TRANSPORTATION SOLUTIONS.**

 

TransportationSolutions shall not own any assets other than assets used for or incidental toproviding transportation services to the Loan Parties, including, withoutlimitation, the assets set forth on **Schedule 7.13**hereto.

 

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**ARTICLE VIIIEVENTS OF DEFAULT AND REMEDIES**

 

**SECTION 8.01****         ****EVENTS OF DEFAULT.**

 

Eachof the following shall constitute an event of default hereunder (each, an “***Event of Default***”):

 

**(a)****          ****Non-Payment.**  Borrower or any other Loan Party fails topay:  (i) within five Business Dayswhen and as required to be paid herein, any amount of principal of any Loan orany L/C Obligation; (ii) within five Business Days after the samebecomes due, any interest on any Loan or on any L/C Obligation, or any feedue hereunder; or (iii) within five Business Days after the same becomesdue, any other amount payable hereunder or under any other Loan Document; or

 

**(b)****          ****SpecificCovenants.**  Borrowerfails to perform or observe any term, covenant or agreement contained in any of**Section 6.01**, **Section 6.02**,**Section 6.03**, **Section 6.05**,**Section 6.10**, **Section 6.11**,**Section 6.12** or **Article VII**, or any Guarantor fails to perform orobserve any term, covenant or agreement contained in its Guaranty; or

 

**(c)****          ****Representationsand Warranties.**  Anyrepresentation, warranty, certification or statement of fact made or deemedmade by or on behalf of Borrower or any other Loan Party herein, in any otherLoan Document or in any document delivered in connection herewith or therewithshall be incorrect or misleading in any material respect when made or deemedmade; or

 

**(d)****          ****OtherDefaults.**  Any LoanParty fails to perform or observe any other covenant or agreement (notspecified in **Section 8.01(a)**, **Section 8.01(b) **or **Section 8.01(c)**)contained in any Loan Document on its part to be performed or observed and suchfailure continues for thirty days; or

 

**(e)****          ****Cross-Default.**  (i) Borrower or any Subsidiarythereof:  (A) fails to make anypayment when due (whether by scheduled maturity, required prepayment,acceleration, demand, or otherwise but after giving affect to any cure periodor waivers with respect thereto) in respect of any Debt (other than Debthereunder and Debt under Swap Contracts) having an aggregate principal amount(including undrawn committed or available amounts and including amounts owingto all creditors under any combined or syndicated credit arrangement) of morethan the Threshold Amount; or (B) fails to observe or perform (within thecure period applicable thereto and any waivers with respect thereto) any otheragreement or condition relating to any such other Debt or contained in anydocument evidencing, securing or relating to any of the foregoing, or any otherdefault or event occurs, the effect of which default or other event is tocause, or to permit the holder or holders of such Debt (or a trustee or agenton behalf of such holder or holders) to cause, with the giving of notice ifrequired, such Debt to be demanded or to become due or to be repurchased,prepaid, defeased or redeemed (automatically or otherwise), or an offer torepurchase, prepay, defease or redeem such Debt to be made, prior to its statedmaturity; or (ii) there occurs under any Swap Contract an EarlyTermination Date (as defined in such Swap Contract) resulting from:  (A) any event of default under such SwapContract as to which Borrower or any Subsidiary thereof is the Defaulting Party(as defined in such Swap Contract); or (B) any Termination Event (as sodefined) under such Swap Contract as to which Borrower or any Subsidiary 

 

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thereofis an Affected Party (as so defined) and, in either event, the Swap TerminationValue owed by Borrower or any such Subsidiary as a result thereof is greaterthan the Threshold Amount; or

 

**(f)****           ****InsolvencyProceedings, Etc.**  AnyLoan Party or any Subsidiary thereof institutes or consents to the institutionof any proceeding under any Bankruptcy Law, or makes an assignment for thebenefit of creditors; or applies for or consents to the appointment of anyreceiver, trustee, custodian, conservator, liquidator, rehabilitator or similarofficer for it or for all or any material part of its property; or anyreceiver, trustee, custodian, conservator, liquidator, rehabilitator or similarofficer is appointed without the application or consent of such Person and theappointment continues undischarged or unstayed for sixty calendar days; or anyproceeding under any Bankruptcy Law relating to any such Person or to all orany material part of its property is instituted without the consent of suchPerson and continues undismissed or unstayed for sixty calendar days, or anorder for relief is entered in any such proceeding; or

 

**(g)****          ****Inabilityto Pay Debts; Attachment.** (i) Any Loan Party or any Subsidiary thereof becomes unable oradmits in writing its inability or fails generally to pay its debts as theybecome due; or (ii) any writ or warrant of attachment or execution orsimilar process is issued or levied against all or any material part of theproperty of any such Person and is not released, vacated or fully bonded withinthirty days after its issue or levy; or

 

**(h)****          ****Judgments.**  There is entered against any Loan Party orany Subsidiary thereof:  (i) a finaljudgment or order for the payment of money in an aggregate amount exceeding theThreshold Amount (to the extent not covered by independent third-partyinsurance as to which the insurer does not dispute coverage); or (ii) anyone or more non-monetary final judgments that have, or could reasonably beexpected to have, individually or in the aggregate, a Material Adverse Effectand, in either case: (A) enforcement proceedings are commenced by any creditor upon suchjudgment or order; or (B) there is a period of thirty consecutive daysduring which a stay of enforcement of such judgment, by reason of a pendingappeal or otherwise, is not in effect; or

 

**(i)****           ****ERISA.**  (i) An ERISA Event occurs with respectto a Pension Plan or Multiemployer Plan which has resulted or could reasonablybe expected to result in liability of Borrower under Title IV of ERISA tothe Pension Plan, Multiemployer Plan or the PBGC in an aggregate amount inexcess of the Threshold Amount; or (ii) Borrower or any ERISA Affiliatefails to pay when due, after the expiration of any applicable grace period, anyinstallment payment with respect to its Withdrawal Liability underSection 4201 of ERISA under a Multiemployer Plan in an aggregate amount inexcess of the Threshold Amount; or

 

**(j)****           ****Invalidityof Loan Documents.**  Any LoanDocument or any provision thereof, at any time after its execution and deliveryand for any reason other than as expressly permitted hereunder or thereunder orsatisfaction in full of all the Obligations, ceases to be in full force andeffect; or any Loan Party contests in any manner the validity or enforceabilityof any Loan Document or any provision thereof; or any Loan Party denies that ithas any or further liability or obligation under any Loan Document, or purportsto revoke, terminate or rescind any Loan Document or any provision thereof; or

 

**(k)****          ****Liens**. Any Lienpurported to be created under any Collateral Document shall cease to be, orshall be asserted by any Loan Party not to be, a valid and perfected Lien onany Collateral, with the

 

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priorityrequired by the applicable Collateral Document, except (a) as a result ofthe sale or other disposition of the applicable Collateral in a transactionpermitted under the Loan Documents or (b) as a result of theAdministrative Agent’s failure to maintain possession of any stockcertificates, promissory notes or other instruments delivered to it under theSecurity Agreement; or

 

**(l)****           ****Changeof Control.**  There occursa Change of Control.

 

**SECTION 8.02****        ****REMEDIES UPON EVENT OF DEFAULT.**

 

Ifany Event of Default occurs and is continuing, Administrative Agent shall, atthe request of, or may, with the consent of, Required Lenders, take any or allof the following actions:

 

**(a)****          ****Terminationof Commitments, Etc.** Declare, by written notice to Borrower, the commitment of each Lender tomake Loans and any obligation of L/C Issuer to make L/C CreditExtensions to be terminated, whereupon such commitments and obligation shall beterminated;

 

**(b)****          ****Accelerationof Obligations.**  Declare theunpaid principal amount of all outstanding Loans, all interest accrued andunpaid thereon and all other amounts owing or payable hereunder or under anyother Loan Document to be immediately due and payable, without presentment,demand, protest or other notice of any kind, all of which are hereby expresslywaived by Borrower;

 

**(c)****          ****CashCollateralization of L/C Obligations.**  Require that Borrower Cash Collateralize theL/C Obligations in an amount equal to 102.00% of the then OutstandingAmount thereof; and

 

**(d)****          ****Exerciseof Rights and Remedies.** Exercise on behalf of itself and Lenders all rights and remediesavailable to it and Lenders under the Loan Documents;

 

*provided* that, upon theoccurrence of an actual or deemed entry of an order for relief with respect toBorrower under any Bankruptcy Law, the obligation of each Lender to make Loansand any obligation of L/C Issuer to make L/C Credit Extensions shallautomatically terminate, the unpaid principal amount of all outstanding Loansand all interest and other amounts as aforesaid shall automatically become dueand payable, and the obligation of Borrower to Cash Collateralize theL/C Obligations in an amount equal to 102.00% of the then OutstandingAmount thereof shall automatically become effective, in each case, withoutfurther act of Administrative Agent or any Lender.

 

**SECTION 8.03****        ****APPLICATION OF FUNDS.**

 

Followingthe occurrence of an Event of Default or any exercise of remedies provided forin **Section 8.02** (or after the Loanshave automatically become immediately due and payable and theL/C Obligations have automatically been required to be Cash Collateralizedas set forth in the proviso to **Section 8.02**),any amounts received on account of the Obligations shall be applied byAdministrative Agent in the following order (on a *pro rata*basis within each level of priority):

 

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**(a)****          ****First,** to pay allcosts and expenses incident to the enforcement of the Loan Documents orotherwise owing to Administrative Agent hereunder, including all attorneys’fees and costs and all compensation to any agents, sub-agents and contractorsof Administrative Agent and Lending Parties;

 

**(b)****          ****Second,** to pay allaccrued but unpaid interest on the Loans and L/C Obligations and allaccrued but unpaid letter of credit and commitment fees hereunder;

 

**(c)****          ****Third**:  (i) to pay the Total Outstandings, theOutstanding Amount of all Swing Line Loans; (ii) to Cash Collateralize allL/C Obligations up to the Outstanding Amount thereof; (iii) to pay alltreasury management obligations owing to Administrative Agent and (iv) topay the total amount of Swap Obligations;

 

**(d)****          ****Fourth,** to pay allother Obligations; and

 

**(e)****          ****Fifth,** to pay theremainder, if any, to Borrower or to whomever may be lawfully entitled toreceive such remainder.

 

Notwithstandinganything to the contrary contained in this **Section 8.03: **(i) Cash Collateral forEurodollar Rate Loans shall be applied on the maturity date of their respectiveInterest Periods to repay such Eurodollar Rate Loans; and (ii) subject to **Section 2.03(c)**, amounts used to Cash Collateralize theaggregate undrawn amount of Letters of Credit pursuant to clause **Third****of this **Section 8.03**shall be applied to satisfy drawings undersuch Letters of Credit as they occur; if any amount remains on deposit as CashCollateral after all Letters of Credit have either been fully drawn or expired,such remaining amount shall be applied to the other Obligations, if any, in theorder set forth in this **Section 8.03**.

 

**ARTICLE IXADMINISTRATIVE AGENT**

 

**SECTION 9.01****        ****APPOINTMENT AND AUTHORIZATION OFADMINISTRATIVE AGENT.**

 

EachLending Party hereby irrevocably appoints Wells Fargo to act on its behalf asAdministrative Agent hereunder and under the other Loan Documents andauthorizes Administrative Agent to take such actions on its behalf and toexercise such powers as are delegated to Administrative Agent by the termshereof and thereof, together with such actions and powers as are reasonablyincidental thereto.  The provisions ofthis **Article IX** are solely for the benefitof Administrative Agent and Lending Parties, and neither Borrower nor any otherLoan Party shall have rights as a third party beneficiary of any of suchprovisions.

 

**SECTION 9.02****        ****RIGHTS AS A LENDER.**

 

Ifthe Person serving as Administrative Agent hereunder is also “***Swing Line Lender***,” “***L/C Issuer***” or a “***Lender***,” such Person shall have thesame rights and powers in such capacity(ies) as any other Person in suchcapacity(ies) and may exercise the same as though it were not AdministrativeAgent.  Such Person and its Affiliatesmay accept deposits from, lend money to, act as the financial advisor or in anyother advisory capacity for and generally engage in any kind of business withBorrower 

 

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orany Subsidiary or Affiliate of Borrower as if such Person were notAdministrative Agent hereunder and without any duty to account therefor to anyother Lending Party.

 

**SECTION 9.03****        ****EXCULPATORY PROVISIONS.**

 

AdministrativeAgent shall not have any duties or obligations except those expressly set forthherein and in the other Loan Documents. Without limiting the generality of the foregoing, Administrative Agent:

 

**(a)****          ****NoFiduciary Duties.**  Shall not besubject to any fiduciary or other implied duties, regardless of whether aDefault has occurred and is continuing;

 

**(b)****          ****NoObligations Regarding Certain Actions.**  Shall not have any duty to take anydiscretionary action or exercise any discretionary powers, except discretionaryrights and powers expressly contemplated hereby or by the other Loan Documentsthat Administrative Agent is required to exercise as directed in writing byRequired Lenders (or such other number or percentage of Lenders as shall beexpressly provided for herein or in any other Loan Documents, Swing Line Lenderor L/C Issuer, as applicable; *provided* thatAdministrative Agent shall not be required to take any action that, in itsopinion or the opinion of its counsel, may expose Administrative Agent toliability or that is contrary to any Loan Document or applicable Law; and

 

**(c)****          ****DisclosureObligations.**  Shall not,except as expressly set forth herein and in the other Loan Documents, have anyduty to disclose, and shall not be liable for the failure to disclose, anyinformation relating to Borrower or any of its Affiliates that is communicatedto or obtained by the Person serving as Administrative Agent or any of itsAffiliates in any capacity.

 

**(d)****          ****Limitationon Liability.**  Shall not beliable for any action taken or not taken by it: (i) with the consent or at the request of Required Lenders (or suchother number or percentage of Lenders as shall be necessary, or asAdministrative Agent shall believe in good faith shall be necessary, under thecircumstances as provided in **Section 8.02**and **Section 10.01**); or (ii) inthe absence of its own gross negligence or willful misconduct.  Administrative Agent shall be deemed not tohave knowledge of any Default, unless and until Borrower, a Loan Party, or aLending Party provides written notice to Administrative Agent describing suchDefault.  Administrative Agent shall notbe responsible for or have any duty to ascertain or inquire into:  (A) any statement, warranty orrepresentation made in or in connection with this Agreement or any other LoanDocument; (B) the contents of any certificate, report or other documentdelivered hereunder or thereunder or in connection herewith or therewith;(C) the performance or observance of any of the covenants, agreements orother terms or conditions set forth herein or therein or the occurrence of anyDefault; (D) the validity, enforceability, effectiveness or genuineness ofthis Agreement, any other Loan Document or any other agreement, instrument ordocument; or (E) the satisfaction of any condition set forth in **Article IV** or elsewhere herein, other than to confirmreceipt of items expressly required to be delivered to Administrative Agent.

 

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**SECTION 9.04****        ****RELIANCE BY ADMINISTRATIVE AGENT.**

 

AdministrativeAgent shall be entitled to rely upon, and shall not incur any liability forrelying upon, any notice, request, certificate, consent, statement, instrument,document or other writing (including any electronic message, Internet orintranet website posting or other distribution) believed by it to be genuineand to have been signed, sent or otherwise authenticated by the properPerson.  Administrative Agent also mayrely upon any statement made to it orally or by telephone and believed by it tohave been made by the proper Person and shall not incur any liability forrelying thereon.  In determiningcompliance with any condition hereunder to the making of a Loan, or theissuance of a Letter of Credit, that by its terms must be fulfilled to the satisfactionof a specified Lending Party, Administrative Agent may presume that suchcondition is satisfactory to such Lending Party, unless Administrative Agentshall have received notice to the contrary from such Lending Party prior to themaking of such Loan or the issuance of such Letter of Credit.  Administrative Agent may consult with legalcounsel (who may be counsel for Borrower), independent accountants and otherexperts it selects and shall not be liable for any action it takes or does nottake in accordance with the advice of any such counsel, accountants or experts.

 

**SECTION 9.05****        ****DELEGATION OF DUTIES.**

 

AdministrativeAgent may perform any and all of its duties and exercise its rights and powershereunder or under any other Loan Document by or through any one or moresub-agents it appoints.  AdministrativeAgent and any such sub-agent may perform any and all of its duties and exerciseits rights and powers by or through their respective Related Parties.  The exculpatory provisions of this **Article IX** shall apply to any such sub-agent and to theRelated Parties of Administrative Agent and any such sub-agent and shall applyto their respective activities in connection with the syndication of the creditfacilities provided for herein, as well as activities as Administrative Agent.  The Administrative Agent shall not be liablefor the actions or inactions of any sub-agent

 

**SECTION 9.06****        ****RESIGNATION OF ADMINISTRATIVEAGENT.**

 

AdministrativeAgent may at any time give notice of its resignation to Lending Parties andBorrower.  Upon receipt of any suchnotice of resignation, Required Lenders shall have the right, with, unless anEvent of Default exists, the consent of Borrower (which consent shall not beunreasonably withheld), to appoint a successor, which shall be a bank with anoffice in the United States, or an Affiliate of any such bank with an office inthe United States.  If no such successorshall have been so appointed by Required Lenders and shall have accepted suchappointment within thirty days after the retiring Administrative Agent gives noticeof its resignation, then the retiring Administrative Agent may on behalf ofLending Parties, appoint a successor Administrative Agent meeting thequalifications set forth in this **Section 9.06**;*provided* that, if Administrative Agentshall notify Lending Parties and Borrower that no qualifying Person hasaccepted such appointment, then such resignation shall nonetheless becomeeffective in accordance with such notice and (a) the retiringAdministrative Agent shall be discharged from its duties and obligationshereunder and under the other Loan Documents solely in its capacity asAdministrative Agent (except that in the case of any collateral security heldby Administrative Agent on behalf of any Lending Party under any of the LoanDocuments, the retiring Administrative Agent shall continue to hold suchcollateral security until such time as a successor 

 

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AdministrativeAgent is appointed) and (b) all payments, communications anddeterminations provided to be made by, to or through Administrative Agent shallinstead be made by or to each Lending Party directly, until such time asRequired Lenders appoint a successor Administrative Agent as provided for inthis **Section 9.06**.  Upon the acceptance of a successor’sappointment as Administrative Agent hereunder, such successor shall succeed toand become vested with all of the rights, powers, privileges and duties of theretiring (or retired) Administrative Agent, and the retiring AdministrativeAgent shall be discharged from all of its duties and obligations hereunder orunder the other Loan Documents solely in its capacity as Administrative Agent(if not already discharged therefrom as provided in this **Section 9.06**).  The fees payable by Borrower to a successor AdministrativeAgent shall be the same as those payable to its predecessor unless otherwiseagreed between Borrower and such successor. After the retiring Administrative Agent’s resignation hereunder andunder the other Loan Documents, the provisions of this **Article IX**and **Section 10.04** shall continue ineffect for the benefit of such retiring Administrative Agent, its sub-agentsand their respective Related Parties in respect of any actions taken or omittedto be taken by any of them while the retiring Administrative Agent was actingas Administrative Agent.

 

Anyresignation by Wells Fargo as Administrative Agent pursuant to this **Section 9.06**shall also constitute its resignation asL/C Issuer and Swing Line Lender. Upon the acceptance of a successor’s appointment as Administrative Agenthereunder:  (i) such successor shallsucceed to and become vested with all of the rights, powers, privileges andduties of the retiring L/C Issuer and Swing Line Lender; (ii) theretiring L/C Issuer and Swing Line Lender shall be discharged from all oftheir respective duties and obligations hereunder or under the other LoanDocuments; (iii) the successor L/C Issuer shall issue letters ofcredit in substitution for the Letters of Credit, if any, outstanding at thetime of such succession or make other arrangements satisfactory to the retiringL/C Issuer to effectively assume the obligations of the retiringL/C Issuer with respect to such Letters of Credit and (iv) thesuccessor Swing Line Lender shall purchase the outstanding Swing Lines Loans ofthe resigning Swing Line Lender at par.

 

**SECTION 9.07****        ****NON-RELIANCE ON ADMINISTRATIVEAGENT AND OTHER LENDERS.**

 

EachLending Party acknowledges that it has, independently and without reliance uponAdministrative Agent, any other Lending Party or any of their Related Partiesand based on such documents and information as it has deemed appropriate, madeits own credit analysis and decision to enter into this Agreement.  Each Lending Party also acknowledges that itwill, independently and without reliance upon Administrative Agent, any otherLending Party or any of their Related Parties and based on such documents andinformation as it shall from time to time deem appropriate, continue to makeits own decisions in taking or not taking action under or based upon thisAgreement, any other Loan Document or any related agreement or any documentfurnished hereunder or thereunder.

 

**SECTION 9.08****        ****NO OTHER DUTIES, ETC.**

 

Notwithstandinganything to the contrary contained herein, no Person identified herein or onthe facing page or signature pages hereof as a “Co-DocumentationAgent,” “Co-Agent,” “Book Manager,” “Book Runner,” “Arranger,” “Lead Arranger,”“Co-Lead Arranger” or “Co-Arranger,” if any, shall have or be deemed to haveany right, power, obligation, liability, responsibility or duty under thisAgreement or the other Loan Documents, other than in such Person’s capacityas:  (a) Administrative Agent, aLender, Swing Line Lender or L/C Issuer hereunder; and (b) anIndemnitee hereunder.

 

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**SECTION 9.09****        ****ADMINISTRATIVE AGENT MAY FILEPROOFS OF CLAIM.**

 

Incase of the pendency of any receivership, insolvency, liquidation, bankruptcy,reorganization, arrangement, adjustment, composition or other judicialproceeding relative to any Loan Party, Administrative Agent (irrespective ofwhether the principal of any Loan or L/C Obligation shall then be due andpayable as herein expressed or by declaration or otherwise and irrespective ofwhether Administrative Agent shall have made any demand on Borrower) shall beentitled and empowered, by intervention in such proceeding or otherwise:  (a) to file and prove a claim for thewhole amount of the principal and interest owing and unpaid in respect of theLoans, L/C Obligations and all other Obligations that are owing and unpaidand to file such other documents as may be necessary or advisable in order tohave the claims of Lending Parties and Administrative Agent (including anyclaim for the reasonable compensation, expenses, disbursements and advances ofLending Parties and Administrative Agent and their respective agents andcounsel and all other amounts due Lending Parties and Administrative Agentunder **Sections 2.03(i)**, **Section 2.09** and **Section 10.04**)allowed in such judicial proceeding; and (b) to collect and receive anymonies or other property payable or deliverable on any such claims and todistribute the same; and any custodian, receiver, assignee, trustee,liquidator, sequestrator or other similar official in any such judicialproceeding is hereby authorized by each Lending Party to make such payments toAdministrative Agent and, in the event that Administrative Agent shall consentto the making of such payments directly to Lending Parties, to pay to AdministrativeAgent any amount due for the reasonable compensation, expenses, disbursementsand advances of Administrative Agent and its agents and counsel, and any otheramounts due Administrative Agent under **Section 2.09**and **Section 10.04**.  Nothing contained herein shall be deemed toauthorize Administrative Agent to authorize or consent to or accept or adopt onbehalf of any Lending Party any plan of reorganization, arrangement, adjustmentor composition affecting the Obligations or the rights of any Lending Party orto authorize Administrative Agent to vote in respect of the claim of anyLending Party in any such proceeding.

 

**SECTION 9.10****        ****GUARANTY MATTERS**

 

EachLending Party hereby: (a) irrevocably authorizes Administrative Agent, at its option andin its discretion, to release any Guarantor from its obligations under aGuaranty if such Person ceases to be a Subsidiary as a result of a transactionpermitted hereunder; and (b) agrees that, upon request by AdministrativeAgent at any time, it will confirm in writing Administrative Agent’s authorityto release any such Guarantor pursuant to this **Section 9.10**.

 

**SECTION 9.11****        ****COLLATERAL MATTERS**

 

**(a)****          ****Directionsby Lending Parties.**  Each LendingParty hereby, irrevocably authorizes and directs Administrative Agent:  (i) to enter into the CollateralDocuments for the benefit of such Person; (ii) without the necessity ofany notice to or further consent from any such Person from time to time priorto an Event of Default, to take any action with respect to any Collateral or CollateralDocuments that may be necessary to perfect and maintain perfected the Liensupon the Collateral granted pursuant to the Collateral Documents; (iii) torelease any Lien on any property granted to or held by Administrative Agentunder any Loan Document:  (A) upontermination of the Aggregate Commitments and payment in full of all Obligations(other than unasserted contingent indemnification obligations); (B) thatis sold or 

 

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tobe sold as part of or in connection with any Asset Sale or other Dispositionpermitted hereunder or under any other Loan Document; (C) subject to **Section 10.01**, if approved, authorized or ratified inwriting by Required Lenders; or (D) in connection with any foreclosure saleor other disposition of Collateral after the occurrence of an Event of Default;and (iv) to subordinate any Lien on any property granted to or held byAdministrative Agent under any Loan Document to the holder of any Lien on suchproperty that is permitted by this Agreement or any other Loan Document.  Upon request by Administrative Agent at anytime, each Lending Party will confirm in writing Administrative Agent’sauthority to release or subordinate its interest in particular types or itemsof Collateral pursuant to this **Section 9.11**.

 

**(b)****          ****CertainActions by Administrative Agent.**  Subject to **Section 9.11(a)(iii) **and**Section 9.11(a)(iv)**,Administrative Agent shall (and is hereby irrevocably authorized by eachLending Party to) execute such documents as may be necessary to evidence therelease or subordination of Liens granted to Administrative Agent herein orpursuant hereto upon the applicable Collateral; *provided*that:  (i) Administrative Agentshall not be required to execute any such document on terms that, inAdministrative Agent’s opinion, would expose Administrative Agent to or createany liability or entail any consequence other than the release or subordinationof such Liens without recourse or warranty; and (ii) such release orsubordination shall not in any manner discharge, affect or impair theObligations or any Liens upon (or obligations of Borrower or any other LoanParty in respect of) all interests retained by Borrower or any other LoanParty, including the proceeds of the sale, all of which shall continue toconstitute part of the Collateral.  Inthe event of any sale or transfer of Collateral, or any foreclosure withrespect to any of the Collateral, Administrative Agent shall be authorized todeduct all expenses reasonably incurred by Administrative Agent from theproceeds of any such sale, transfer or foreclosure.

 

**(c)****          ****NoObligations Regarding Certain Actions.**  Administrative Agent shall have no obligationwhatsoever to any Lending Party or any other Person to assure that theCollateral exists or is owned by Borrower or any other Loan Party or is caredfor, protected or insured or that the Liens granted to Administrative Agentherein or in any of the Collateral Documents or pursuant hereto or thereto havebeen properly or sufficiently or lawfully created, perfected, protected orenforced or are entitled to any particular priority, or to exercise or tocontinue exercising at all or in any manner or under any duty of care,disclosure or fidelity any of the rights, authorities and powers granted oravailable to Administrative Agent in this **Section 9.11**or in any of the Collateral Documents, it being understood and agreed that inrespect of the Collateral, or any act, omission or event related thereto,Administrative Agent may act in any manner it may deem appropriate, in its solediscretion, given Administrative Agent’s own interest in the Collateral as oneof the Lenders, as Swing Line Lender and as L/C Issuer.

 

**(d)****          ****Appointmentof Lending Parties as Agents.**  Each Lending Party hereby appoints each othersuch Person as agent for the purpose of perfecting Administrative Agent’s orsuch Person’s security interest in assets that, in accordance withArticle 9 or Division 9 (as applicable) of the Uniform CommercialCode, can be perfected only by possession. Should any such Person (other than Administrative Agent) obtainpossession of any such Collateral, such Person shall notify AdministrativeAgent thereof, and, promptly upon Administrative Agent’s request therefor,shall deliver such Collateral to Administrative Agent or in accordance withAdministrative Agent’s instructions.

 

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**ARTICLE X**

**GENERAL PROVISIONS**

 

**SECTION 10.01****      ****AMENDMENTS, ETC.**

 

Noamendment or waiver of any provision of this Agreement or any other LoanDocument, and no consent to any departure by Borrower or any other Loan Partytherefrom, shall be effective unless in writing signed by Required Lenders (orAdministrative Agent at the written request of Required Lenders) and Borroweror the applicable Loan Party, as the case may be, with receipt acknowledged byAdministrative Agent, and each such waiver or consent shall be effective onlyin the specific instance and for the specific purpose for which given; *provided* that no such amendment, waiver or consent shall:

 

**(a)****          ****MattersInvolving Each Working Capital Lender.**  Unless in writing and signed by Borrower,with receipt acknowledged by Administrative Agent, do any of the following:

 

(i)            increase, orextend the expiry of, the Working Capital Commitment of any Working CapitalLender without the written consent of such Working Capital Lender, or increaseor extend the Swing Line Sublimit (or reinstate any such Commitment or theSwing Line Sublimit to the extent terminated pursuant to **Section 8.02**)without the written consent of all Working Capital Lenders; or

 

(ii)           postpone ordelay any date fixed by this Agreement or any other Loan Document for anypayment of principal, interest, fees or other amounts due to any WorkingCapital Lender hereunder or under any other Loan Document, including anyprepayments specified under **Section 2.05**,****or reduce the amount due to any Working Capital Lender onany such date, in each case without the written consent of such Working CapitalLender; or

 

(iii)          reduce the principalof, or the rate of interest or commitment fee specified herein on, any WorkingCapital Loan or any Working Capital Commitment or other amounts payable to anyWorking Capital Lender hereunder or under any other Loan Document, in each casewithout the written consent of such Working Capital Lender; or

 

(iv)          amend anyprovision herein providing for consent or other action by all Working CapitalLenders, without the written consent of all Working Capital Lenders; or

 

(v)           amend thedefinition of or “***Working Capital Maturity Date***”contained in **Section 1.01** without thewritten consent of Working Capital Lenders holding in excess of 50% of theAggregate Working Capital Commitments, provided that the amended definition of “***Working Capital Maturity Date***” shallnot extend the Working Capital Commitment of any Working Capital Lender notconsenting to the amended definition; or

 

(vi)          amend thedefinition of “***Required Working Capital Lenders***”contained in **Section 1.01**without thewritten consent of all Working Capital Lenders; and

 

**(b)****          ****MattersInvolving Each Floorplan Lender.**  Unless in writing and signed by Borrower,with receipt acknowledged by Administrative Agent, do any of the following:

 

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(i)            increase, or extendthe expiry of, the Floorplan Commitment of any Floorplan Lender (or reinstateany such Commitment to the extent terminated pursuant to **Section 8.02**)without the written consent of such Floorplan Lender; or

 

(ii)           postpone ordelay any date fixed by this Agreement or any other Loan Document for anypayment of principal, interest, fees or other amounts due to any FloorplanLender hereunder or under any other Loan Document, including any prepaymentsand scheduled reductions specified under **Sections 2.05**,**2.06(b) **and**2.06(c)**,****or reduce the amount due to any Floorplan Lender on anysuch date, in each case without the written consent of such Floorplan Lender;or

 

(iii)          reduce theprincipal of, or the rate of interest or commitment fee specified herein on,any Floorplan Loan or any Floorplan Commitment or other amounts payable to anyFloorplan Lender hereunder or under any other Loan Document, in each casewithout the written consent of such Floorplan Lender; or

 

(iv)          amend anyprovision herein providing for consent or other action by all FloorplanLenders, without the written consent of all Floorplan Lenders;

 

(v)           amend thedefinition of “***Floorplan Maturity Date***”contained in **Section 1.01** without thewritten consent of Floorplan Lenders holding in excess of 50% of the AggregateFloorplan Commitments, provided that the amended definition of “***Floorplan Maturity Date***” shall notextend the Floorplan Commitment of any Floorplan Lender not consenting to theamended definition; or

 

(v)           amend thedefinition of “***Required Floorplan Lenders***”contained in **Section 1.01**without thewritten consent of all Floorplan Lenders; and

 

**(c)****          ****MattersInvolving Required Working Capital Lenders. **No such waiver, amendment or consent to any representation, warranty,covenant, Event of Default or other provision of any Loan Document shall beeffective for purposes of **Section 4.02**withrespect to the making of Working Capital Loans, Swing Line Loans or L/C CreditExtensions after the Closing Date unless in writing and signed by RequiredWorking Capital Lenders and Borrower, with receipt acknowledged byAdministrative Agent;

 

**(d)****          ****MattersInvolving Required Floorplan Lenders. **No such waiver,amendment or consent to any representation, warranty, covenant, Event ofDefault or other provision of any Loan Document shall be effective for purposesof **Section 4.02**with respect to themaking of Floorplan Loans after the Closing Date unless in writing and signedby Required Floorplan Lenders and Borrower, with receipt acknowledged byAdministrative Agent;

 

**(e)****          ****MattersInvolving Specific Lenders. **Unless inwriting and signed by Required Working Capital Lenders, Required FloorplanLenders and Borrower, with receipt acknowledged by Administrative Agent, amendor waive any of the terms and provisions contained in **Section 2.05**,it being understood that any waiver, amendment or consent to **Section 2.05**shall also be subject to subsections (a) and(b) of this **Section 10.01**, if applicable;

 

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**(f)****           ****MattersInvolving All Lenders. **Unless inwriting and signed by all Lenders and Borrower, with receipt acknowledged byAdministrative Agent, do any of the following:

 

(i)            amend this **Section 10.01**, or **Section 2.13**,or any provision herein providing for consent or other action by all Lenders;or

 

(ii)           release all ora substantial portion of the Collateral, except as otherwise expressly providedherein or in any of the Collateral Documents, or amend the definition of theobligations secured by any of the Collateral Documents; or

 

(iii)          except ascontemplated by **Section 2.14**, increase theAggregate Commitments;

 

(iv)          release orterminate any of the Guaranties except as otherwise expressly provided hereinor in any of the Loan Documents;

 

(v)           amend thedefinition of “***Required Lenders***” containedin **Section 1.01**;

 

(vi)          amend thedefinition of “***Supermajority Floorplan Lenders***”contained in **Section 1.01**; or

 

(vii)         amend thedefinition of “***Supermajority Working Capital Lenders***”contained in **Section 1.01**;

 

**(g)****          ****MattersInvolving Supermajority Floorplan Lenders. **Unless in writing and signed by Supermajority Floorplan Lenders andBorrower, with receipt acknowledged by Administrative Agent, (i) increaseany advance rate set forth in the Floorplan Borrowing Base or (ii) amendor waive any of the terms and provisions contained in **Section 8.03**;

 

**(h)****          ****MattersInvolving Supermajority Working Capital Lenders. **Unless in writing and signedby Supermajority Working Capital Lenders and Borrower, with receiptacknowledged by Administrative Agent, (i) increase any advance rate setforth in the Working Capital Borrowing Base or (ii) amend or waive any ofthe terms and provisions contained in **Section 8.03**;

 

*provided**further* that: (i) no amendment, waiver or consent shall, unless in writing andsigned by L/C Issuer in addition to such Lenders as are otherwise requiredby this **Section 10.01**, affect the rightsor duties of L/C Issuer under this Agreement or any Issuer Documentrelating to any Letter of Credit issued or to be issued by it; (ii) noamendment, waiver or consent shall, unless in writing and signed by Swing LineLender in addition to such Lenders as are otherwise required by this **Section 10.01**, affect the rights or duties of SwingLine Lender under this Agreement; (iii) no amendment, waiver or consentshall, unless in writing and signed by Administrative Agent in addition to suchLenders as are otherwise required by this **Section 10.01**,affect the rights or duties of Administrative Agent under this Agreement or anyother Loan Document; (iv) the Fee Letter and the Fee Letter may beamended, or rights or privileges thereunder waived, in a writing executed onlyby the parties thereto; and Notwithstanding anything to the contrary herein, noLender who is at the time a Defaulting Lender shall have any right to approveor disapprove any amendment, waiver or consent hereunder, except that theCommitment of such Lender may not be increased or extended without the consentof such Lender.

 

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**SECTION 10.02****      ****NOTICES; EFFECTIVENESS;ELECTRONIC COMMUNICATIONS.**

 

**(a)****          ****NoticesGenerally.**  Except inthe case of notices and other communications expressly permitted to be given bytelephone (and except as provided in **Section 10.02(b)**),all notices and other communications provided for herein shall be in writingand shall be delivered by hand or overnight courier service, mailed bycertified or registered mail, sent by telefacsimile transmission or sent byapproved electronic communication in accordance with **Section 10.02(b)**,and all notices and other communications expressly permitted to be given bytelephone shall be made to the applicable telephone number, as follows:

 

(i)            if to Borrower,any Guarantor, Administrative Agent, L/C Issuer or Swing Line Lender, tothe address, telefacsimile number, e-mail address or telephone number specifiedfor such Person on **Schedule 10.02**;and

 

(ii)           if to anyLender, to the address, telefacsimile number, e-mail address or telephonenumber specified in its Administrative Detail Form.

 

Noticessent by hand or overnight courier service, or mailed by certified or registeredmail, shall be deemed to have been given when received, and notices sent bytelefacsimile transmission or by means of approved electronic communicationshall be deemed to have been given when sent (except that, if not given duringnormal business hours for the recipient, shall be deemed to have been given atthe opening of business on the next business day for the recipient); *provided* that notices delivered through electroniccommunications to the extent provided by **Section 10.02(b) **shallbe effective as provided in such subsection (b).

 

**(b)****          ****ElectronicCommunications.**

 

(i)            Each LendingParty agrees that notices and other communications to it hereunder may be deliveredor furnished by electronic communication (including e-mail and Internet orintranet websites) pursuant to procedures approved by Administrative Agent; *provided* that the foregoing shall not apply to notices toany Lending Party pursuant to **Article II**if such Lending Party has notified Administrative Agent that it is incapable ofreceiving notices under **Article II**by electronic communication; *provided further*that, as of the date hereof, each Lending Party who is a party hereto confirmsthat it is capable of receiving notices under **Article II**by electronic communication.  Infurtherance of the foregoing, each Lending Party hereby agrees to notifyAdministrative Agent in writing, on or before the date such Lending Partybecomes a party to this Agreement, of such Lending Party’s e-mail address towhich a notice may be sent (and from time to time thereafter to ensure thatAdministrative Agent has on record an effective e-mail address for such LendingParty).  Each of Administrative Agent andBorrower may, in its discretion, agree to accept notices and othercommunications to it hereunder by means of electronic communication pursuant toprocedures approved by it; *provided* thatapproval of such procedures may be limited to particular notices orcommunications.

 

Unless Administrative Agent otherwise prescribes:  (A) notices and other communicationssent to an e-mail address shall be deemed received upon the sender’s receipt ofan acknowledgement from the intended recipient (such as by the “return receiptrequested” 

 

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function,as available, return e-mail or other written acknowledgement); *provided* that, if such notice or other communication is notsent during the normal business hours of the recipient, such notice orcommunication shall be deemed to have been sent at the opening of business onthe next business day for the recipient; and (B) notices or communicationsposted to an Internet or intranet website shall be deemed received upon thedeemed receipt by the intended recipient at its e-mail address as described inthe foregoing clause (A) of notification that such notice orcommunication is available and identifying the website address therefor.

 

(ii)           Borrower herebyacknowledges that:  (A) AdministrativeAgent may make available to Lending Parties Specified Materials by posting someor all of the Specified Materials on an Electronic Platform; (B) thedistribution of materials and information through an electronic medium is notnecessarily secure and that there are confidentiality and other risksassociated with any such distribution, the Electronic Platform is provided andused on an “AS IS,” “AS AVAILABLE” basis; and (C) neither AdministrativeAgent nor any of its Affiliates warrants the accuracy, completeness,timeliness, sufficiency or sequencing of the Specified Materials posted on theElectronic Platform.  ADMINISTRATIVEAGENT, ON BEHALF OF ITSELF AND ITS AFFILIATES, EXPRESSLY AND SPECIFICALLYDISCLAIMS, WITH RESPECT TO THE ELECTRONIC PLATFORM, DELAYS IN POSTING ORDELIVERY, OR PROBLEMS ACCESSING THE SPECIFIED MATERIALS POSTED ON THEELECTRONIC PLATFORM, AND ANY LIABILITY FOR ANY LOSSES, COSTS, EXPENSES ORLIABILITIES THAT MAY BE SUFFERED OR INCURRED IN CONNECTION WITH THEELECTRONIC PLATFORM.  NO WARRANTY OF ANYKIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OFMERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSES, NON-INFRINGEMENT OF THIRDPARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS, IS MADE BYADMINISTRATIVE AGENT OR ANY OF ITS AFFILIATES IN CONNECTION WITH THE ELECTRONICPLATFORM.

 

Each Lending Party hereby agrees that notice to it in accordance with **Section 10.02(b)(i) **specifying that any SpecifiedMaterials have been posted to the Electronic Platform shall, for purposes ofthis Agreement, constitute effective delivery to such Lending Party of suchSpecified Materials.

 

EACH LENDING PARTY: (1) ACKNOWLEDGES THAT THE SPECIFIED MATERIALS, INCLUDINGINFORMATION FURNISHED TO IT BY ANY LOAN PARTY OR ADMINISTRATIVE AGENT PURSUANTTO, OR IN THE COURSE OF ADMINISTERING, THE LOAN DOCUMENTS, MAY INCLUDEMATERIAL, NON-PUBLIC INFORMATION CONCERNING THE LOAN PARTIES AND THEIRRESPECTIVE SUBSIDIARIES OR AFFILIATES OR THEIR RESPECTIVE SECURITIES; AND(2) CONFIRMS THAT:  (I) IT HASDEVELOPED COMPLIANCE PROCEDURES REGARDING THE USE OF MATERIAL, NON-PUBLICINFORMATION; (II) IT WILL HANDLE SUCH MATERIAL, NON-PUBLIC INFORMATION INACCORDANCE WITH SUCH PROCEDURES AND APPLICABLE LAWS, INCLUDE FEDERAL ANDSTATE SECURITIES LAWS; AND (III) IT HAS IDENTIFIED IN ITS ADMINISTRATIVEDETAIL FORM A CONTACT PERSON WHO MAY RECEIVE SPECIFIED MATERIALS THATMAY CONTAIN MATERIAL, NON-PUBLIC INFORMATION IN ACCORDANCE WITH ITSCOMPLIANCE PROCEDURES AND APPLICABLE LAWS.

 

**(c)****          ****Changeof Address, Etc.** Borrower, Administrative Agent, Swing Line Lender and L/C Issuermay change their respective address(es), telefacsimile number(s), telephonenumber(s) or 

 

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e-mailaddress(es) for notices and other communications hereunder by notice to theother parties hereto.  Each Lender maychange its address(es), telefacsimile number(s), telephone number(s) ore-mail address(es) for notices and other communications hereunder by notice toBorrower, Administrative Agent, Swing Line Lender and L/C Issuer.

 

**(d)****          ****Relianceby Administrative Agent and Lending Parties.**  Administrative Agent and Lending Partiesshall be entitled to rely and act upon any notices (including telephonic orelectronically delivered Requests for Credit Extension) purportedly given by oron behalf of Borrower even if: (i) such notices were not made in a manner specified herein, wereincomplete or were not preceded or followed by any other form of noticespecified herein; or (ii) the terms thereof, as understood by therecipient, varied from any confirmation thereof.  Borrower shall indemnify Administrative Agentand each Lending Party and their respective Related Parties from all losses,costs, expenses and liabilities resulting from the reliance by such Person oneach notice purportedly given by or on behalf of Borrower.  All telephonic notices to and othertelephonic communications with Administrative Agent may be recorded byAdministrative Agent, and each of the parties hereto hereby consents to suchrecording.

 

**SECTION 10.03****      ****NO WAIVER; CUMULATIVE REMEDIES.**

 

Nofailure by Administrative Agent or any Lending Party to exercise, and no delayby any such Person in exercising, any right, remedy, power or privilegehereunder shall operate as a waiver thereof; no single or partial exercise ofany right, remedy, power or privilege hereunder shall preclude any other orfurther exercise thereof or the exercise of any other right, remedy, power orprivilege.  The rights, remedies, powers andprivileges herein provided are cumulative and not exclusive of any rights,remedies, powers and privileges provided by law.

 

**SECTION 10.04****      ****EXPENSES; INDEMNITY; DAMAGEWAIVER.**

 

**(a)****          ****Costsand Expenses.**  Borrowershall pay:  (i) all reasonableout-of-pocket expenses incurred by Administrative Agent, Arranger and theirrespective Affiliates (including the reasonable fees, charges and disbursementsof counsel for Administrative Agent), in connection with the syndication of thecredit facilities provided for herein, the preparation, negotiation, execution,delivery and administration of this Agreement and the other Loan Documents orany amendments, modifications or waivers of the provisions hereof or thereof(whether or not the transactions contemplated hereby or thereby shall beconsummated); (ii) all reasonable out-of-pocket expenses incurred byL/C Issuer in connection with the issuance, amendment, renewal orextension of any Letter of Credit or any demand for payment thereunder; and(iii) all out-of-pocket expenses incurred by Administrative Agent or anyLending Party (including the fees, charges and disbursements of any counsel forAdministrative Agent or any Lending Party), and shall pay all fees and timecharges for attorneys, who may be employees of Administrative Agent or anyLending Party, in connection with the enforcement or protection of itsrights:  (A) in connection with thisAgreement and the other Loan Documents, including its rights under this **Section 10.04**; or (B) in connection with the Loansmade or Letters of Credit issued hereunder, including all such out-of-pocketexpenses incurred during any workout or restructuring (or negotiations inconnection with the foregoing) in respect of such Loans or Letters of Credit.

 

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**(b)****          ****Indemnificationby Borrower.**  Borrowershall indemnify each Indemnitee against, and hold each Indemnitee harmlessfrom, any and all losses, claims, damages, liabilities and related expenses(including the fees, charges and disbursements of any counsel for any Indemnitee),and shall indemnify and hold harmless each Indemnitee from all fees and timecharges and disbursements for attorneys, who may be employees of anyIndemnitee, incurred by any Indemnitee or asserted against any Indemnitee byany third party or by Borrower or any other Loan Party arising out of, inconnection with, or as a result of: (i) the execution or delivery of this Agreement, any other LoanDocument or any document contemplated hereby or thereby, the performance by theparties hereto of their respective obligations hereunder or thereunder or theconsummation of the transactions contemplated hereby or thereby; (ii) anyLoan or Letter of Credit or the use or proposed use of the proceeds therefrom(including any refusal by L/C Issuer to honor a demand for payment under aLetter of Credit if the documents presented in connection with such demand donot strictly comply with the terms of such Letter of Credit); (iii) anyactual or alleged presence or release of Hazardous Materials on or from any propertyowned or operated by Borrower, any Subsidiary thereof or any other Loan Party,or any Environmental Claim or Environmental Liability related in any way toBorrower, any Subsidiary thereof or any other Loan Party; or (iv) anyactual or prospective claim, litigation, investigation or proceeding relatingto any of the foregoing, whether based on contract, tort or any other theory,whether brought by a third party or by Borrower, any Subsidiary thereof or anyother Loan Party, and regardless of whether any Indemnitee is a party thereto,in all cases, whether or not caused by or arising, in whole or in part, out ofthe comparative, contributory or sole negligence of the Indemnitee; *provided* that such indemnity shall not, as to anyIndemnitee, be available to the extent that such losses, claims, damages,liabilities or related expenses result from the gross negligence or willfulmisconduct of such Indemnitee.

 

**(c)****          ****Reimbursementby Lenders.**  If Borrowerfor any reason fails to pay when due any amount that it is required to payunder **Section 10.04(a) **or **Section 10.04(b) **to Administrative Agent (or anysub-agent thereof), Swing Line Lender, L/C Issuer or any Related Party ofany of the foregoing, each Lender severally agrees to pay to AdministrativeAgent (or any such sub-agent), Swing Line Lender, L/C Issuer or suchRelated Party, as the case may be, such Lender’s pro rata share (based on itsPercentage Shares (determined as of the time that the applicable unreimbursedexpense or indemnity payment is sought) of such unpaid amount; *provided* that the unreimbursed expense or indemnified loss,claim, damage, liability or related expense, as the case may be, was incurredby or asserted against Administrative Agent (or any such sub-agent), Swing LineLender, L/C Issuer or any Related Party of any of the foregoing acting forAdministrative Agent (or any such sub-agent), Swing Line Lender orL/C Issuer in connection with such capacity.  The obligations of Lenders under thissubsection (c) are subject to the provisions of **Section 2.12(d)**.

 

**(d)****          ****Waiverof Consequential Damages, Etc.**  To the fullest extent permitted by applicablelaw, each Loan Party shall not assert, and hereby waives, any claim against anyIndemnitee, on any theory of liability, for special, indirect, consequential orpunitive damages (as opposed to direct or actual damages) arising out of, inconnection with, or as a result of, this Agreement, any other Loan Document orany document contemplated hereby, the transactions contemplated hereby orthereby, any Loan or Letter of Credit or the use of the proceeds thereof.  No Indemnitee referred to in **Section 10.04(b) **shall be liable for any damagesarising from the use by unintended recipients of any information or othermaterials distributed by it through telecommunications, electronic or otherinformation transmission systems in connection with this Agreement or the otherLoan Documents or the transactions contemplated hereby or thereby.

 

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**(e)****          ****Payments.**  All amounts due under this **Section 10.04****shall bepayable not later than three Business Days after demand therefor.

 

**(f)****           ****Survival.**  The agreements in this **Section** **10.04** shall survive the resignation of Administrative Agent,Swing Line Lender and L/C Issuer, the replacement of any Lender, thetermination of the Aggregate Commitments and the repayment, satisfaction ordischarge of all other Obligations.

 

**SECTION 10.05****      ****MARSHALLING; PAYMENTS SET ASIDE.**

 

NeitherAdministrative Agent nor any other Lending Party shall be under any obligationto marshal any asset in favor of Borrower or any other Person or against or inpayment of any or all of the Obligations. To the extent that any payment by or on behalf of Borrower is made toAdministrative Agent or any Lending Party, or Administrative Agent or anyLending Party exercises its right of setoff, and such payment or the proceedsof such setoff or any part thereof is subsequently invalidated, declared to befraudulent or preferential, set aside or required (including pursuant to anysettlement entered into by Administrative Agent or any Lending Party in suchPerson’s discretion) to be repaid to a trustee, receiver or any other party, inconnection with any proceeding under any Bankruptcy Law or otherwise,then:  (a) to the extent of suchrecovery, the obligation or part thereof originally intended to be satisfiedshall be revived and continued in full force and effect as if such payment hadnot been made or such setoff had not occurred; and (b) each Lending Partyseverally agrees to pay to Administrative Agent upon demand its applicableshare (without duplication) of any amount so recovered from or repaid byAdministrative Agent *plus* interestthereon from the date of such demand to the date such payment is made at a rateper annum equal to the Federal Funds Rate. The obligations of each Lending Party under clause (b) of thepreceding sentence shall survive the payment in full of the Obligations and thetermination of this Agreement.

 

**SECTION 10.06****      ****SUCCESSORS AND ASSIGNS.**

 

**(a)****          ****Successorsand Assigns Generally.**  Theprovisions of this Agreement shall be binding upon and inure to the benefit ofthe parties hereto and their respective successors and assigns permittedhereby, except that neither Borrower nor any other Loan Party may assign orotherwise transfer any of its rights or obligations hereunder without the priorwritten consent of Administrative Agent and each Lending Party, and neitherSwing Line Lender nor any Lender may assign or otherwise transfer any of itsrights or obligations hereunder except: (i) to an Eligible Assignee in accordance with the provisions ofsubsection (b) of this **Section 10.06**;(ii) by way of participation in accordance with the provisions ofsubsection (d) of this **Section 10.06**;or (iii) by way of pledge or assignment of a security interest subject tothe restrictions of subsection (f) of this **Section 10.06**(and any other attempted assignment or transfer by any party heretoshall be null and void).  Nothing in thisAgreement, expressed or implied, shall be construed to confer upon any Person(other than the parties hereto, their respective successors and assignspermitted hereby, Participants to the extent provided in subsection (d) ofthis **Section 10.06**and, to the extentexpressly contemplated hereby, the Related Parties of each of AdministrativeAgent and each Lending Party) any legal or equitable right, remedy or claimunder or by reason of this Agreement.

 

**(b)****          ****Assignmentsby Swing Line Lender or any Lender.**  Swing Line Lender or any Lender may at anytime assign to one or more Eligible Assignees all or a portion of its rightsand obligations 

 

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underthis Agreement (including all or a portion of its Commitment(s) and theLoans (including for purposes of this subsection (b), participations inL/C Obligations and in Swing Line Loans, as applicable) at the time owingto it); *provided* that (i) except in thecase of an assignment of the entire remaining amount of the assigning Lender’sCommitment(s) and Loans at the time owing to it or in the case of anassignment to a Lender or an Affiliate of a Lender, the aggregate amount of theCommitment(s) (which for this purpose includes Loans outstandingthereunder) or, if any Commitment is not then in effect, the Outstanding Amountof the Loans of the assigning Swing Line Lender or Lender subject to each suchassignment, determined as of the date the Assignment and Assumption withrespect to such assignment is delivered to Administrative Agent or, if a “tradedate” is specified in the Assignment and Assumption, as of such trade date,shall not be less than $5,000,000.00 unless each of Administrative Agent and,so long as no Event of Default has occurred and is continuing, Borrowerotherwise consents (each such consent not to be unreasonably withheld ordelayed); (ii) each partial assignment shall be made as an assignment of aproportionate part of all the assigning Lender’s rights and obligations underthis Agreement with respect to the Loans or the Commitment assigned, exceptthat this clause (ii) shall not apply to rights in respect of SwingLine Loans; (iii) any assignment of a Commitment must be approved byAdministrative Agent, L/C Issuer and Swing Line Lender, unless the Personthat is the proposed assignee is itself a Lender (whether or not the proposedassignee would otherwise qualify as an Eligible Assignee); (iv) theEligible Assignee, if it is not then a Lender, shall deliver to AdministrativeAgent an Administrative Detail Form; and (v) the parties to each assignmentshall execute and deliver to Administrative Agent an Assignment and Assumption,together with a processing and recordation fee of $3,500.00; *provided* that Administrative Agent hereby waives suchprocessing and recordation fee in connection with any assignment effectedpursuant to **Section 3.07(a)**; and(vi) so long as an Event of Default does not then exist, any assignmentshall require the prior written consent of Borrower (which shall not beunreasonably withheld or delayed) unless the Person that is the proposedassignee is an Eligible Assignee. Subject to acceptance and recording thereof by Administrative Agentpursuant to subsection (c) of this **Section 10.06**,from and after the effective date specified in each Assignment and Assumption,the Eligible Assignee thereunder shall be a party to this Agreement and, to theextent of the interest assigned by such Assignment and Assumption, have therights and obligations of Swing Line Lender or a Lender, as applicable, underthis Agreement, and the assigning Swing Line Lender or Lender, as applicable,thereunder shall, to the extent of the interest assigned by such Assignment andAssumption, be released from its obligations under this Agreement (and, in thecase of an Assignment and Assumption covering all of the assigning LendingParty’ rights and obligations under this Agreement, such Lending Party shallcease to be a party hereto) but shall continue to be entitled to the benefitsof **Section 3.01**, **Section 3.04**,**Section 3.05** and **Section 10.04** with respect to facts and circumstancesoccurring prior to the effective date of such assignment.  Upon request, Borrower (at its expense) shallexecute and deliver Notes to the assignee Lending Party.  Any assignment or transfer by Swing LineLender or a Lender of rights or obligations under this Agreement that does notcomply with this subsection shall be treated for purposes of this Agreement asa sale by such Lending Party of a participation in such rights and obligationsin accordance with subsection (d) of this **Section 10.06**.

 

**(c)****          ****Register.**  Administrative Agent, acting solely for thispurpose as an agent of Borrower, shall maintain at the Administrative Agent’sOffice a copy of each Assignment and Assumption delivered to it and aRegister.  The entries in the Registershall be conclusive, and Borrower, Administrative Agent and Lending Parties maytreat each Person whose name is recorded in the Register pursuant to the termshereof as a Lender hereunder for all purposes of this Agreement,notwithstanding notice to the contrary. The Register shall be available for inspection by each of Borrower,Swing Line 

 

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Lenderand L/C Issuer, at any reasonable time and from time to time uponreasonable prior notice.  In addition, atany time that a request for a consent for a material or substantive change tothe Loan Documents is pending, any Lender wishing to consult with other Lendersin connection therewith may request and receive from Administrative Agent acopy of the Register.

 

**(d)****          ****Participations.**  Swing Line Lender or any Lender may at anytime, without the consent of, or notice to, Borrower or Administrative Agent,sell participations to any Participant in all or a portion of such Person’srights and/or obligations under this Agreement (including all or a portion ofits Commitment(s) and/or the Loans (including such Lender’s participationsin L/C Obligations and/or Swing Line Loans) owing to it); *provided* that: (i) such Person’s obligations under this Agreement shall remainunchanged; (ii) such Person shall remain solely responsible to the otherparties hereto for the performance of such obligations; and(iii) Borrower, Administrative Agent and Lending Parties shall continue todeal solely and directly with such Person in connection with such Person’srights and obligations under this Agreement. Any document pursuant to which Swing Line Lender or a Lender sells sucha participation shall provide that such Person shall retain the sole right toenforce this Agreement and the other Loan Documents and to approve anyamendment, modification or waiver of any provision of this Agreement and theother Loan Documents; *provided* thatsuch document may provide that such Person will not, without the consent of theParticipant, agree to any amendment, waiver or other modification described inthe first proviso to **Section 10.01**that affects such Participant.  Subjectto subsection (e) of this **Section 10.06**,Borrower agrees that each Participant shall be entitled to the benefits of **Section 3.01**, **Section 3.04**and **Section 3.05** to the same extent asif it were a Lending Party hereunder and had acquired its interest byassignment pursuant to subsection (b) of this **Section 10.06**.  To the extent permitted by law, eachParticipant also shall be entitled to the benefits of **Section 10.08**as though it were a Lending Party, as long as such Participant agrees to besubject to **Section 2.13** as though itwere a Lending Party.

 

**(e)****          ****Limitationsupon Participant Rights.**  AParticipant shall not be entitled to receive any greater payment under **Section 3.01** or **Section 3.04**than the applicable Lender would have been entitled to receive with respect tothe participation sold to such Participant, unless the sale of theparticipation to such Participant is made with Borrower’s prior writtenconsent.

 

**(f)****           ****CertainPledges.**  Any Lendermay at any time pledge or assign a security interest in all or any portion ofits rights under this Agreement (including under its Note, if any) to secureobligations of such Lender, including any pledge or assignment to secureobligations to a Federal Reserve Bank; *provided* thatno such pledge or assignment shall release such Lender from any of itsobligations hereunder or substitute any such pledgee or assignee for suchLender as a party hereto.

 

**(g)****          ****ElectronicExecution of Assignments.**  Thewords “***execution***,” “***signed***,” “***signature***,”and words of like import in any Assignment and Assumption shall be deemed toinclude electronic signatures or the keeping of records in electronic form,each of which shall be of the same legal effect, validity or enforceability asa manually executed signature or the use of a paper-based recordkeeping system,as the case may be, to the extent and as provided for in any applicable Law,including the Federal Electronic Signatures in Global and National CommerceAct, the New York State Electronic Signatures and Records Act, or any othersimilar state laws based on the Uniform Electronic Transactions Act.

 

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**(h)****          ****Resignationas L/C Issuer or Swing Line Lender.**  Notwithstanding anything to the contrarycontained herein, if at any time Wells Fargo assigns all of its Commitments andLoans pursuant to subsection (b) of this **Section 10.06**,Wells Fargo may do either or both of the following:  (i) upon thirty days’ notice to Borrowerand all Lenders, resign as L/C Issuer; or (ii) upon thirty days’notice to Borrower, resign as Swing Line Lender.  In the event of any such resignation asL/C Issuer or Swing Line Lender, Borrower shall be entitled to appointfrom among Lenders a successor L/C Issuer or Swing Line Lender; *provided* that no failure by Borrower to appoint any suchsuccessor shall affect the resignation of Wells Fargo as L/C Issuer orSwing Line Lender, as the case may be. If Wells Fargo resigns as L/C Issuer, it shall retain all therights and obligations of L/C Issuer hereunder with respect to all Lettersof Credit outstanding as of the effective date of its resignation asL/C Issuer and all L/C Obligations with respect thereto (includingthe right to require Lenders to make Working Capital Loans that are Base RateRevolving Loans or fund risk participations in Unreimbursed Amounts pursuant to**Section 2.03(c)**).  If Wells Fargo resigns as Swing Line Lender,it shall retain all the rights of Swing Line Lender provided for hereunder withrespect to Swing Line Loans made by it and outstanding as of the effective dateof such resignation, including the right to require Lenders to make WorkingCapital Loans that are Base Rate Loans or fund risk participations inoutstanding Swing Line Loans pursuant to **Section 2.04(c)**.

 

**SECTION 10.07****      ****TREATMENT OF CERTAIN INFORMATION;CONFIDENTIALITY.**

 

AdministrativeAgent and each Lending Party each agrees to maintain the confidentiality of theInformation, except that Information may be disclosed:  (a) to its Affiliates and to its and itsAffiliates’ respective partners, directors, officers, employees, agents,advisors and representatives (it being understood that the Persons to whom suchdisclosure is made will be informed of the confidential nature of suchInformation and agree to keep such Information confidential on the same termsas provided herein); (b) to the extent requested by any regulatoryauthority, purporting to have jurisdiction over it (including anyself-regulatory authority, such as the National Association of InsuranceCommissioners); (c) to the extent required by applicable laws orregulations or by any subpoena or similar legal process; (d) to any otherparty hereto; (e) in connection with the exercise of any remedieshereunder or under any other Loan Document or any action or proceeding relatingto this Agreement or any other Loan Document or the enforcement of rightshereunder or thereunder; (f) to Gold Sheets and other similar banktrade publications, such information to consist of deal terms and otherinformation customarily found in such publications, (g) unless an Event ofDefault has occurred and is continuing, subject to an agreement containingprovisions substantially the same as those of this **Section 10.07**to:  (i) any assignee ofor Participant in, or any prospective assignee of or Participant in, any of itsrights or obligations under this Agreement; or (ii) any actual orprospective counterparty (or its advisors) to any swap or derivativetransaction relating to any Loan Party; (h) with the consent of Borrower;or (i) to the extent such Information: (i) becomes publicly available other than as a result of a breachof this **Section 10.07**; or(ii) becomes available to Administrative Agent, any Lending Party or anyof their respective Affiliates on a non-confidential basis from a source otherthan Borrower or any Subsidiary thereof and not in contravention of this **Section 10.07**. For purposes of this **Section 10.07**,“***Information***” means all information(including financial information) received from Borrower or any Subsidiariesthereof relating to Borrower or any Subsidiary thereof or any of theirrespective businesses, other than any such information that is available to AdministrativeAgent or any Lending Party on a nonconfidential basis, and not in contraventionof this **Section 10.07**, prior to disclosureby Borrower or any Subsidiary thereof. Any Person required to maintain the confidentiality of Information asprovided in this **Section 10.07**:  (A) shall be considered to have compliedwith its obligation to do so if such Person has exercised the 

 

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samedegree of care to maintain the confidentiality of such Information as suchPerson would accord to its own confidential information; and (B) shall notdisclose any financial information concerning Borrower, any Subsidiary thereofor their respective businesses (including any information based on any suchfinancial information) or use any such financial information for commercialpurposes without the prior written consent of Borrower.

 

**SECTION 10.08****      ****RIGHT OF SETOFF.**

 

Ifan Event of Default shall have occurred and be continuing, each of LendingParties and their respective Affiliates is hereby authorized at any time andfrom time to time, to the fullest extent permitted by applicable law, to setoff and apply any and all deposits (general or special, time or demand,provisional or final, in whatever currency) at any time held and otherobligations (in whatever currency) at any time owing by such Lending Party toor for the credit or the account of Borrower or any other Loan Party againstany and all of the Obligations to such Lending Party or such Affiliate,irrespective of whether or not such Lending Party shall have made any demandunder this Agreement or any other Loan Document and although such obligationsof Borrower or such Loan Party may be contingent or unmatured or are owed to abranch or office of such Lending Party different from the branch or officeholding such deposit or obligated on such obligations.  The rights of each Lending Party and itsAffiliates under this **Section 10.08**arein addition to other rights and remedies (including other rights of setoff)that such Lending Party or its Affiliates may have.  Each Lending Party agrees to notify Borrowerand Administrative Agent promptly after any such setoff and application; *provided* that the failure to give such notice shall notaffect the validity of such setoff and application.  NOTWITHSTANDING THE FOREGOING, NO LENDINGPARTY SHALL EXERCISE, OR ATTEMPT TO EXERCISE, ANY RIGHT OF SET-OFF, BANKER’SLIEN, OR THE LIKE, AGAINST ANY DEPOSIT ACCOUNT OR PROPERTY OF BORROWER OR ANYSUBSIDIARY THEREOF HELD OR MAINTAINED BY SUCH LENDING PARTY WITHOUT THE PRIORWRITTEN CONSENT OF ADMINISTRATIVE AGENT.

 

**SECTION 10.09****      ****INTEREST RATE LIMITATION.**

 

Notwithstandinganything to the contrary contained in any Loan Document, the interest paid oragreed to be paid under the Loan Documents shall not exceed the MaximumRate.  If Administrative Agent or anyLender shall receive interest in an amount that exceeds the Maximum Rate, theexcess interest shall be applied to the principal of the Loans or, if it exceedssuch unpaid principal, refunded to Borrower. In determining whether the interest contracted for, charged, or receivedby Administrative Agent or a Lender exceeds the Maximum Rate, such Person may,to the extent permitted by applicable Law: (a) characterize any payment that is not principal as an expense,fee, or premium rather than interest; (b) exclude voluntary prepaymentsand the effects thereof; and (c) amortize, prorate, allocate, and spreadin equal or unequal parts the total amount of interest throughout thecontemplated term of the Obligations hereunder.

 

**SECTION 10.10****      ****COUNTERPARTS; INTEGRATION;EFFECTIVENESS.**

 

ThisAgreement may be executed in counterparts (and by different parties hereto indifferent counterparts), each of which shall constitute an original, but all ofwhich when taken together shall constitute a single contract.  This Agreement and the other Loan Documentsconstitute the entire 

 

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agreementamong the parties relating to the subject matter hereof and supersede any andall previous documents, agreements and understandings, oral or written,relating to the subject matter hereof. Except as provided in **Section 4.01**,this Agreement shall become effective when it shall have been executed anddelivered by Administrative Agent and when Administrative Agent shall havereceived counterparts hereof that, when taken together, bear the signatures ofeach of the other parties hereto. Delivery of an executed counterpart of a signature page of thisAgreement by telecopy shall be effective as delivery of a manually executedcounterpart of this Agreement.

 

**SECTION 10.11****      ****SURVIVAL OF REPRESENTATIONS ANDWARRANTIES.**

 

Allrepresentations and warranties made hereunder and in any other Loan Document orother document delivered pursuant hereto or thereto or in connection herewithor therewith shall survive the execution and delivery hereof and thereof.  Such representations and warranties have beenor will be relied upon by Administrative Agent and each Lender, regardless ofany investigation made by Administrative Agent or any Lender or on their behalfand notwithstanding that Administrative Agent or any Lender may have had noticeor knowledge of any Default at the time of any Credit Extension, and shallcontinue in full force and effect as long as any Loan or any other Obligation(other than unasserted contingent indemnification obligations) hereunder shallremain unpaid or unsatisfied or any Letter of Credit shall remain outstanding.

 

**SECTION 10.12****      ****SEVERABILITY.**

 

Ifany provision of this Agreement or the other Loan Documents is held to beillegal, invalid or unenforceable, (a) the legality, validity andenforceability of the remaining provisions of this Agreement and the other LoanDocuments shall not be affected or impaired thereby and (b) the partiesshall endeavor in good faith negotiations to replace the illegal, invalid orunenforceable provisions with valid provisions the economic effect of whichcomes as close as possible to that of the illegal, invalid or unenforceableprovisions.  The invalidity of aprovision in a particular jurisdiction shall not invalidate or renderunenforceable such provision in any other jurisdiction.

 

**SECTION 10.13****      ****USA PATRIOT ACT NOTICE.**

 

EachLending Party that is subject to the Act and Administrative Agent (for itselfand not on behalf of any Lending Party) hereby notify Borrower that, pursuantto the requirements of the Act, they are each required to obtain, verify andrecord information that identifies Borrower and each other Loan Party, whichinformation includes the name and address of Borrower and each other Loan Partyand other information that will allow such Lending Party or AdministrativeAgent, as applicable, to identify Borrower and each other Loan Party inaccordance with the Act.

 

**SECTION 10.14****      ****GUARANTY BY SUBSIDIARIES.**

 

**(a)****          ****Guaranty.**  Each Subsidiary of Borrower party hereto(each, a “***Subsidiary Guarantor***”)unconditionally and irrevocably guarantees to Administrative Agent and LendingParties the full and prompt payment when due (whether at stated maturity, byrequired prepayment, declaration, acceleration, demand or otherwise) andperformance of**the Obligations (the “***Guaranteed Obligations***”).  The

 

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GuaranteedObligations include interest that, but for a proceeding under any BankruptcyLaw, would have accrued on such Guaranteed Obligations, whether or not a claimis allowed against Borrower for such interest in any such proceeding.

 

**(b)****          ****SeparateObligation.**  EachSubsidiary Guarantor acknowledges and agrees that:  (i) the Guaranteed Obligations areseparate and distinct from any Debt arising under or in connection with any otherdocument, including under any provision of this Agreement other than this **Section 10.14**, executed at any time by such SubsidiaryGuarantor in favor of Administrative Agent or any Lending Party; and(ii) such Subsidiary Guarantor shall pay and perform all of the GuaranteedObligations as required under this **Section 10.14**,and Administrative Agent and Lending Parties may enforce any and all of theirrespective rights and remedies hereunder, without regard to any other document,including any provision of this Agreement other than this **Section 10.14**,at any time executed by such Subsidiary Guarantor in favor of AdministrativeAgent or any Lending Party, irrespective of whether any such other document, orany provision thereof or hereof, shall for any reason become unenforceable orany of the Debt thereunder shall have been discharged, whether by performance,avoidance or otherwise.  Each SubsidiaryGuarantor acknowledges that, in providing benefits to Borrower, AdministrativeAgent and Lending Parties are relying upon the enforceability of this **Section 10.14** and the Guaranteed Obligations asseparate and distinct Debt of such Subsidiary Guarantor, and each SubsidiaryGuarantor agrees that Administrative Agent and Lending Parties would be deniedthe full benefit of their bargain if at any time this **Section 10.14**or the Guaranteed Obligations were treated any differently.  The fact that the guaranty is set forth inthis Agreement rather than in a separate guaranty document is for theconvenience of Borrower and Subsidiary Guarantors and shall in no way impair oradversely affect the rights or benefits of Administrative Agent and LendingParties under this **Section 10.14**.  Each Subsidiary Guarantor agrees to executeand deliver a separate document, immediately upon request at any time ofAdministrative Agent or any Lending Party, evidencing such Subsidiary Guarantor’sobligations under this **Section 10.14**.  Upon the occurrence of any Event of Default,a separate action or actions may be brought against such Subsidiary Guarantor,whether or not Borrower, any other Subsidiary Guarantor or any other Person isjoined therein or a separate action or actions are brought against Borrower,any such other Subsidiary Guarantor or any such other Person.

 

**(c)****          ****Limitationof Guaranty.**  To theextent that any court of competent jurisdiction shall impose by final judgmentunder applicable law (including the Uniform Fraudulent Transfer Act andSections 544 and 548 of the Bankruptcy Code) any limitations on the amountof any Subsidiary Guarantor’s liability with respect to the GuaranteedObligations that Administrative Agent or any Lending Party can enforce underthis **Section 10.14**, AdministrativeAgent and Lending Parties by their acceptance hereof accept such limitation onthe amount of such Subsidiary Guarantor’s liability hereunder to the extentneeded to make this **Section 10.14**fully enforceable and nonavoidable.

 

**(d)****          ****Liabilityof Subsidiary Guarantors.**  Theliability of any Subsidiary Guarantor under this **Section 10.14**shall be irrevocable, absolute, independent and unconditional, and shall not beaffected by any circumstance that might constitute a discharge of a surety orguarantor other than the indefeasible payment and performance in full of allGuaranteed Obligations.  In furtheranceof the foregoing and without limiting the generality thereof, each SubsidiaryGuarantor agrees as follows:

 

(i)            such SubsidiaryGuarantor’s liability hereunder shall be the immediate, direct, and primaryobligation of such Subsidiary Guarantor and shall not be contingent upon 

 

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AdministrativeAgent’s or any Lending Party’s exercise or enforcement of any remedy it mayhave against Borrower or any other Person, or against any collateral or othersecurity for any Guaranteed Obligations;

 

(ii)           this Guarantyis a guaranty of payment when due and not merely of collectibility;

 

(iii)          AdministrativeAgent and Lending Parties may enforce this **Section 10.14**upon the occurrence of an Event of Default notwithstanding the existence of anydispute among Administrative Agent and Lending Parties, on the one hand, andBorrower or any other Person, on the other hand, with respect to the existenceof such Event of Default;

 

(iv)          such SubsidiaryGuarantor’s payment of a portion, but not all, of the Guaranteed Obligationsshall in no way limit, affect, modify or abridge such Subsidiary Guarantor’sliability for any portion of the Guaranteed Obligations remaining unsatisfied;and

 

(v)           such SubsidiaryGuarantor’s liability with respect to the Guaranteed Obligations shall remainin full force and effect without regard to, and shall not be impaired oraffected by, nor shall such Subsidiary Guarantor be exonerated or dischargedby, any of the following events:

 

(A)          any proceeding under any Bankruptcy Law;

 

(B)          any limitation, discharge, or cessation of theliability of Borrower or any other Person for any Guaranteed Obligations due toany statute, regulation or rule of law, or any invalidity orunenforceability in whole or in part of any of the Guaranteed Obligations orthe Loan Documents;

 

(C)          any merger, acquisition, consolidation or change instructure of any Company or any other guarantor or Person, or any sale, lease,transfer or other disposition of any or all of the assets or shares of Borroweror any other Person;

 

(D)          any assignment or other transfer, in whole or inpart, of Administrative Agent’s or any Lending Party’s interests in and rightsunder this Agreement (including this **Section 10.14**)****or the other Loan Documents;

 

(E)           any claim, defense, counterclaim or setoff, otherthan that of prior performance, that Borrower, such Subsidiary Guarantor, anyother Guarantor or any other Person may have or assert, including any defenseof incapacity or lack of corporate or other authority to execute any of theLoan Documents;

 

(F)           Administrative Agent’s or any Lending Party’samendment, modification, renewal, extension, cancellation or surrender of anyLoan Document or any Guaranteed Obligations;

 

(G)          Administrative Agent’s or any Lending Party’sexercise or non-exercise of any power, right or remedy with respect to anyGuaranteed Obligations or any collateral;

 

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(H)          Administrative Agent’s or any Lending Party’s vote,claim, distribution, election, acceptance, action or inaction in any proceedingunder any Bankruptcy Law; or

 

(I)            any other guaranty, whether by such SubsidiaryGuarantor or any other Person, of all or any part of the Guaranteed Obligationsor any other indebtedness, obligations or liabilities of Borrower toAdministrative Agent or any Lending Party.

 

**(e)****          ****Consentsof Subsidiary Guarantors.**  EachSubsidiary Guarantor hereby unconditionally consents and agrees that, withoutnotice to or further assent from such Subsidiary Guarantor:

 

(i)            the principalamount of the Guaranteed Obligations may be increased or decreased andadditional indebtedness or obligations of Borrower under the Loan Documents maybe incurred and the time, manner, place or terms of any payment under any LoanDocument may be extended or changed, by one or more amendments, modifications,renewals or extensions of any Loan Document or otherwise;

 

(ii)           the time forBorrower’s (or any other Person’s) performance of or compliance with any term,covenant or agreement on its part to be performed or observed under any LoanDocument may be extended, or such performance or compliance waived, or failurein or departure from such performance or compliance consented to, all in suchmanner and upon such terms as Administrative Agent and Lending Parties (asapplicable under the relevant Loan Documents) may deem proper;

 

(iii)          AdministrativeAgent and Lending Parties may request and accept other guaranties and may takeand hold security as collateral for the Guaranteed Obligations, and may, fromtime to time, in whole or in part, exchange, sell, surrender, release,subordinate, modify, waive, rescind, compromise or extend such other guarantiesor security and may permit or consent to any such action or the result of anysuch action, and may apply such security and direct the order or manner of salethereof; and

 

(iv)          AdministrativeAgent or Lending Parties may exercise, or waive or otherwise refrain fromexercising, any other right, remedy, power or privilege even if the exercisethereof affects or eliminates any right of subrogation or any other right ofsuch Subsidiary Guarantor against Borrower.

 

**(f)****           ****SubsidiaryGuarantor’s Waivers.**  EachSubsidiary Guarantor waives and agrees not to assert:

 

(i)            any right torequire Administrative Agent or any Lending Party to proceed against Borrower,any other Guarantor or any other Person, or to pursue any other right, remedy,power or privilege of Administrative Agent or any Lending Party whatsoever;

 

(ii)           the defense ofthe statute of limitations in any action hereunder or for the collection orperformance of the Guaranteed Obligations;

 

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(iii)          any defensearising by reason of any lack of corporate or other authority or any otherdefense of Borrower, such Guarantor or any other Person;

 

(iv)          any defense basedupon Administrative Agent’s or any Lending Party’s errors or omissions in theadministration of the Guaranteed Obligations;

 

(v)           any rights toset-offs and counterclaims;

 

(vi)          withoutlimiting the generality of the foregoing, to the fullest extent permitted bylaw, any defenses or benefits that may be derived from or afforded byapplicable law limiting the liability of or exonerating guarantors or sureties,or that may conflict with the terms of this **Section 10.14**;and

 

(vii)         any and allnotice of the acceptance of this guaranty, and any and all notice of thecreation, renewal, modification, extension or accrual of the GuaranteedObligations, or the reliance by Administrative Agent and Lending Parties uponthis Guaranty, or the exercise of any right, power or privilege hereunder.  The Guaranteed Obligations shall conclusivelybe deemed to have been created, contracted, incurred and permitted to exist inreliance upon this Guaranty.  EachSubsidiary Guarantor waives promptness, diligence, presentment, protest, demandfor payment, notice of default, dishonor or nonpayment and all other notices toor upon Borrower, each Guarantor or any other Person with respect to theGuaranteed Obligations.

 

**(g)****          ****FinancialCondition of Borrower.**  NoSubsidiary Guarantor shall have any right to require Administrative Agent orany Lending Party to obtain or disclose any information with respect to:  the financial condition or character ofBorrower or the ability of Borrower to pay and perform the GuaranteedObligations; the Guaranteed Obligations; any collateral or other security forany or all of the Guaranteed Obligations; the existence or nonexistence of anyother guarantees of all or any part of the Guaranteed Obligations; any actionor inaction on the part of Administrative Agent or any Lending Party or anyother Person; or any other matter, fact or occurrence whatsoever.  Each Subsidiary Guarantor hereby acknowledgesthat it has undertaken its own independent investigation of the financialcondition of Borrower and all other matters pertaining to this Guaranty andfurther acknowledges that it is not relying in any manner upon anyrepresentation or statement of Administrative Agent or any Lending Party withrespect thereto.

 

**(h)****          ****Subrogation.**  Until the Guaranteed Obligations shall besatisfied in full and the Aggregate Commitments shall be terminated, eachSubsidiary Guarantor shall not have, and shall not directly or indirectlyexercise:  (i) any rights that itmay acquire by way of subrogation under this **Section 10.14**,by any payment hereunder or otherwise; (ii) any rights of contribution,indemnification, reimbursement or similar suretyship claims arising out of this**Section 10.14**; or (iii) anyother right that it might otherwise have or acquire (in any way whatsoever)that could entitle it at any time to share or participate in any right, remedyor security of Administrative Agent or any Lending Party as against anyBorrower or other Guarantors or any other Person, whether in connection withthis **Section 10.14**, any of the otherLoan Documents or otherwise.  If anyamount shall be paid to any Subsidiary Guarantor on account of the foregoingrights at any time when all the Guaranteed Obligations shall not have been paidin full, such amount shall be held in trust for the benefit of AdministrativeAgent and Lending Parties and 

 

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shallforthwith be paid to Administrative Agent to be credited and applied to theGuaranteed Obligations, whether matured or unmatured, in accordance with theterms of the Loan Documents.

 

**(i)****           ****Subordination.**  All payments on account of all indebtedness,liabilities and other obligations of Borrower to any Subsidiary Guarantor or toany other Subordinated Guarantor, whether now existing or hereafter arising,and whether due or to become due, absolute or contingent, liquidated orunliquidated, determined or undetermined (the “***SubsidiaryGuarantor Subordinated Debt***”) shall be subject, subordinate andjunior in right of payment and exercise of remedies, to the extent and in themanner set forth herein, to the prior payment in full in cash or cashequivalents of the Guaranteed Obligations. As long as any of the Guaranteed Obligations (other than unassertedcontingent indemnification obligations) shall remain outstanding and unpaid,each Subsidiary Guarantor shall not accept or receive any payment ordistribution by or on behalf of Borrower or any other Subsidiary Guarantor,directly or indirectly, or assets of Borrower or any other SubsidiaryGuarantor, of any kind or character, whether in cash, property or securities,including on account of the purchase, redemption or other acquisition ofSubsidiary Guarantor Subordinated Debt, as a result of any collection, sale orother disposition of collateral, or by setoff, exchange or in any other manner,for or on account of the Subsidiary Guarantor Subordinated Debt (“***Subsidiary Guarantor Subordinated Debt Payments***”),except that, so long as an Event of Default does not then exist, any SubsidiaryGuarantor shall be entitled to accept and receive payments on its SubsidiaryGuarantor Subordinated Debt, in accordance with past business practices of suchSubsidiary Guarantor and Borrower (or any other applicable SubsidiaryGuarantor) and not in contravention of any Law or the terms of the LoanDocuments it being understood that any payments pursuant to the section are not“Restricted Payments” hereunder.  .

 

Ifany Subsidiary Guarantor Subordinated Debt Payments shall be received incontravention of this **Section 10.14**,such Subsidiary Guarantor Subordinated Debt Payments shall be held in trust forthe benefit of Administrative Agent and Lending Parties and shall be paid overor delivered to Administrative Agent for application to the payment in full incash or cash equivalents of all Guaranteed Obligations remaining unpaid to theextent necessary to give effect to this **Section 10.14**aftergiving effect to any concurrent payments or distributions to AdministrativeAgent and Lending Parties in respect of the Guaranteed Obligations.

 

**(j)****           ****ContinuingGuaranty.**  ThisGuaranty is a continuing guaranty and agreement of subordination and shallcontinue in effect and be binding upon each Subsidiary Guarantor untiltermination of the Aggregate Commitments and payment and performance in full ofthe Guaranteed Obligations, including Guaranteed Obligations which may existcontinuously or which may arise from time to time under successivetransactions, and each Subsidiary Guarantor expressly acknowledges that thisguaranty shall remain in full force and effect notwithstanding that there maybe periods in which no Guaranteed Obligations exist.  This Guaranty shall continue in effect and bebinding upon each Subsidiary Guarantor until actual receipt by AdministrativeAgent of written notice from such Subsidiary Guarantor of its intention todiscontinue this Guaranty as to future transactions (which notice shall not beeffective until noon on the day that is five Business Days following suchreceipt); *provided* that no revocation ortermination of this guaranty shall affect in any way any rights ofAdministrative Agent, or any Lending Party hereunder with respect to anyGuaranteed Obligations arising or outstanding on the date of receipt of suchnotice, including any subsequent continuation, extension, or renewal thereof,or change in the terms or conditions thereof, or any Guaranteed Obligationsmade or created after such date to the extent made or created pursuant to alegally binding commitment of any Lending Party in existence 

 

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asof the date of such revocation (collectively, “***ExistingGuaranteed Obligations***”), and the sole effect of such noticeshall be to exclude from this Guaranty Guaranteed Obligations thereafterarising which are unconnected to any Existing Guaranteed Obligations.

 

**(k)****          ****Reinstatement.**  This Guaranty shall continue to be effectiveor shall be reinstated and revived, as the case may be, if, for any reason, anypayment of the Guaranteed Obligations by or on behalf of Borrower (or receiptof any proceeds of collateral) shall be rescinded, invalidated, declared to befraudulent or preferential, set aside, voided or otherwise required to berepaid to Borrower, its estate, trustee, receiver or any other Person(including under any Bankruptcy Law), or must otherwise be restored byAdministrative Agent or any Lending Party, whether as a result of proceedingsunder any Bankruptcy Law or otherwise. All losses, damages, costs and expenses that Administrative Agent, orany Lending Party may suffer or incur as a result of any voided or otherwiseset aside payments shall be specifically covered by the indemnity in favor ofAdministrative Agent and Lending Parties contained in **Section 10.04**.

 

**(l)****           ****SubstantialBenefits.**  The CreditExtensions provided to or for the benefit of Borrower hereunder by LendingParties have been and are to be contemporaneously used for the benefit ofBorrower and each Subsidiary Guarantor. It is the position, intent and expectation of the parties that Borrowerand each Subsidiary Guarantor have derived and will derive significant andsubstantial benefits from the Credit Extensions to be made available by LendingParties under the Loan Documents.  EachSubsidiary Guarantor has received at least “reasonably equivalent value” (assuch phrase is used in Section 548 of the Bankruptcy Code, in the UniformFraudulent Transfer Act and in comparable provisions of other applicable law)and more than sufficient consideration to support its obligations hereunder inrespect of the Guaranteed Obligations. Immediately prior to and after and giving effect to the incurrence ofeach Subsidiary Guarantor’s obligations under this Guaranty, such SubsidiaryGuarantor will be solvent.

 

**(m)****         ****KNOWINGAND EXPLICIT WAIVERS.**  EACHSUBSIDIARY GUARANTOR ACKNOWLEDGES THAT IT EITHER HAS OBTAINED THE ADVICE OFLEGAL COUNSEL OR HAS HAD THE OPPORTUNITY TO OBTAIN SUCH ADVICE IN CONNECTIONWITH THE TERMS AND PROVISIONS OF THIS **SECTION 10.14**.  EACH SUBSIDIARY GUARANTOR ACKNOWLEDGES ANDAGREES THAT EACH OF THE WAIVERS AND CONSENTS SET FORTH HEREIN IS MADE WITH FULLKNOWLEDGE OF ITS SIGNIFICANCE AND CONSEQUENCES, THAT ALL SUCH WAIVERS ANDCONSENTS HEREIN ARE EXPLICIT AND KNOWING AND THAT EACH SUBSIDIARY GUARANTOREXPECTS SUCH WAIVERS AND CONSENTS TO BE FULLY ENFORCEABLE.

 

If,while any Subsidiary Guarantor Subordinated Debt is outstanding, any proceedingunder any Bankruptcy Law is commenced by or against Borrower or its property,Administrative Agent, when so instructed by L/C Issuer, Swing Line Lenderand Required Lenders, is hereby irrevocably authorized and empowered (in thename of Lending Parties or in the name of any Subsidiary Guarantor orotherwise), but shall have no obligation, to demand, sue for, collect andreceive every payment or distribution in respect of all Subsidiary GuarantorSubordinated Debt and give acquittances therefor and to file claims and proofsof claim and take such other action (including voting the Subsidiary GuarantorSubordinated Debt) as it may deem necessary or advisable for the exercise orenforcement of any of the rights or interests of Administrative Agent andLending Parties; and each Subsidiary Guarantor shall promptly take such actionas Administrative Agent (on instruction from L/C Issuer, Swing Line Lenderand Required Lenders) may reasonably request: (A) to collect theSubsidiary Guarantor Subordinated Debt 

 

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forthe account of the Lending Parties and to file appropriate claims or proofs ofclaim in respect of the Subsidiary Guarantor Subordinated Debt; (B) toexecute and deliver to Administrative Agent such powers of attorney,assignments and other instruments as it may request to enable it to enforce anyand all claims with respect to the Subsidiary Guarantor Subordinated Debt; and(C) to collect and receive any and all Subsidiary Guarantor SubordinatedDebt Payments.

 

**SECTION 10.15****      ****TIME OF THE ESSENCE.**

 

Timeis of the essence of the Loan Documents.

 

**SECTION 10.16****      ****GOVERNING LAW; JURISDICTION; ETC.**

 

**(a)****          ****GOVERNINGLAW.**  THIS AGREEMENT SHALL BEGOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEWYORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW OTHER THAN NEW YORKGENERAL OBLIGATIONS LAW 5-1401 AND 5-1402).

 

**(b)****          ****SUBMISSIONTO JURISDICTION.**  BORROWER ANDEACH OTHER LOAN PARTY PARTY HERETO EACH IRREVOCABLY AND UNCONDITIONALLYSUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE NONEXCLUSIVE JURISDICTION OF THECOURTS OF THE SUPREME COURT OF THE STATE OF NEW YORK SITTING IN NEW YORK COUNTYIN THE BOROUGH OF MANHATTAN AND OF THE UNITED STATES DISTRICT COURT FOR THESOUTHERN DISTRICT OF NEW YORK, AND ANY APPELLATE COURT FROM ANY THEREOF, INANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANYOTHER LOAN DOCUMENT TO WHICH EACH IS A PARTY, OR FOR RECOGNITION OR ENFORCEMENTOF ANY JUDGMENT, AND EACH OF THE PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLYAGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION OR PROCEEDING MAY BEHEARD AND DETERMINED IN SUCH STATE COURTS OR, TO THE FULLEST EXTENT PERMITTEDBY APPLICABLE LAW, IN SUCH FEDERAL COURTS. EACH OF THE PARTIES HERETO AGREES THAT A FINAL JUDGMENT IN ANY SUCHACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHERJURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BYLAW.  NOTHING IN THIS AGREEMENT OR IN ANYOTHER LOAN DOCUMENT SHALL AFFECT ANY RIGHT THAT ADMINISTRATIVE AGENT OR ANYLENDING PARTY MAY OTHERWISE HAVE TO BRING ANY ACTION OR PROCEEDINGRELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT AGAINST ANY LOAN PARTY ORANY OF ITS PROPERTIES IN THE COURTS OF ANY OTHER JURISDICTION.

 

**(c)****          ****WAIVEROF VENUE.**  BORROWER ANDEACH OTHER LOAN PARTY PARTY HERETO EACH IRREVOCABLY AND UNCONDITIONALLY WAIVES,TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION THAT IT MAY NOWOR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY ACTION OR PROCEEDING ARISINGOUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT IN ANY COURTREFERRED TO IN SUBSECTION (B) OF THIS **SECTION 10.16**.  EACH OF THE PARTIES HERETO HEREBY IRREVOCABLYWAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE DEFENSE OF ANINCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION OR PROCEEDING IN ANY SUCHCOURT.

 

**(d)****          ****SERVICEOF PROCESS.**  BORROWER ANDEACH OTHER LOAN PARTY PARTY HERETO IRREVOCABLY CONSENTS TO SERVICE OF PROCESSIN THE MANNER PROVIDED FOR NOTICES IN 

 

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**SECTION 10.02**.  NOTHING IN THIS AGREEMENT WILL AFFECT THERIGHT OF ANY PARTY HERETO TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BYAPPLICABLE LAW.

 

**SECTION 10.17****      ****WAIVER OF RIGHT TO JURY TRIAL.**

 

TOTHE EXTENT PERMITTED BY APPLICABLE LAW, EACH OF THE PARTIES HERETO HEREBYWAIVES ITS RIGHT TO A JURY TRIAL OF ANY CLAIM. EACH OF THE PARTIES HERETO REPRESENTS THAT EACH HAS REVIEWED THIS WAIVERAND EACH KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWINGCONSULTATION WITH LEGAL COUNSEL ON SUCH MATTERS.

 

[SIGNATURE PAGES FOLLOW.]

 

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INWITNESS WHEREOF, the parties hereto have caused this Agreement to be dulyexecuted as of the date first written above.

 

**BORROWER:**

 
| TITAN  MACHINERY INC.,  |                       |
|-------------------------|----------------------------|
| a  Delaware corporation |                       |
|                    |                       |
| By:                     | /s/  Ted O. Christianson   |   |
| Name:                   | Ted  O. Christianson       |   |
| Title:                  | Vice  President of Finance |   |

 

----

 
| **ADMINISTRATIVE  AGENT, L/C ISSUER AND SWING LINE LENDER:**                                |                   |
|---------------------------------------------------------------------------------------------|------------------------|
| ** **                                                                                  |                   |
| WELLS  FARGO BANK, NATIONAL ASSOCIATION,                                                    |                   |
| a  national banking association, as Administrative Agent, L/C Issuer and Swing  Line Lender |                   |
|                                                                                        |                   |
|                                                                                        |                   |
| By:                                                                                         | /s/  Mark T. Lundquist |   |   |
| Name:                                                                                       | Mark  T. Lundquist     |   |   |
| Title:                                                                                      | Vice  President        |   |   |
|                                                                                        |                   |   |
|                                                                                        |                   |
| WELLS  FARGO BANK, NATIONAL ASSOCIATION,                                                    |                   |
| a  national banking association, as a Lender                                                |                   |
|                                                                                        |                   |
|                                                                                        |                   |
| By:                                                                                         | /s/  Mark T. Lundquist |   |   |
| Name:                                                                                       | Mark  T. Lundquist     |   |   |
| Title:                                                                                      | Vice  President        |   |   |
|                                                                                        |                   |

 
| WORKING CAPITAL COMMITMENT: |   | $ | 17,777,777.78 |   |
|-----------------------------|--------|---|---------------|--------|
| FLOORPLAN COMMITMENT:       |   | $ | 62,222,222.22 |   |

 

----

 

 

 
| **LENDER:**      |                           |
|------------------|--------------------------------|
| ** **       |                           |
| **COBANK,  ACB** |                           |
|             |                           |
|             |                           |
| By:              | /s/  Lois Timkovich            |   |
| Name:            | Lois  Timkovich                |   |
| Title:           | Assistant  Corporate Secretary |   |

 

 
| WORKING CAPITAL COMMITMENT: |   | $ | 8,888,888.89  |   |
|-----------------------------|--------|---|---------------|--------|
| FLOORPLAN COMMITMENT:       |   | $ | 31,111,111.11 |   |

 

----

 
| **LENDER:**               |                  |
|---------------------------|-----------------------|
| ** **                |                  |
| **BANK OF AMERICA, N.A.** |                  |
|                      |                  |
|                      |                  |
| By:                       | /s/ Don Stafford      |   |
| Name:                     | Don Stafford          |   |
| Title:                    | Senior Vice President |   |

 

 
| WORKING CAPITAL COMMITMENT: |   | $ | 8,888,888.89  |   |
|-----------------------------|--------|---|---------------|--------|
| FLOORPLAN COMMITMENT:       |   | $ | 31,111,111.11 |   |

 

----

 
| **LENDER:**                        |                |
|------------------------------------|---------------------|
| ** **                         |                |
| **U.S. BANK NATIONAL ASSOCIATION** |                |
|                               |                |
|                               |                |
| By:                                | /s/ Magnus McDowell |   |
| Name:                              | Magnus McDowell     |   |
| Title:                             | Vice President      |   |

 

 
| WORKING CAPITAL COMMITMENT: |   | $ | 6,666,666.67  |   |
|-----------------------------|--------|---|---------------|--------|
| FLOORPLAN COMMITMENT:       |   | $ | 23,333,333.33 |   |

 

----

 
| **LENDER:**                       |                  |
|-----------------------------------|-----------------------|
| ** **                        |                  |
| **BANK OF THE WEST**              |                  |
| a California banking  corporation |                  |
|                              |                  |
|                              |                  |
| By:                               | /s/ Michael Lax       |   |
| Name:                             | Michael Lax           |   |
| Title:                            | Senior Vice President |   |

 

 
| WORKING CAPITAL COMMITMENT: |   | $ | 4,444,444.44  |   |
|-----------------------------|--------|---|---------------|--------|
| FLOORPLAN COMMITMENT:       |   | $ | 15,555,555.56 |   |

 

----

 
| **LENDER:**           |                          |
|-----------------------|-------------------------------|
| ** **            |                          |
| **BREMER BANK, N.A.** |                          |
|                  |                          |
|                  |                          |
| By:                   | /s/ Wesley Well               |   |
| Name:                 | Wesley Well                   |   |
| Title:                | President — Lisbon, N.D. |   |

 

 
| WORKING CAPITAL COMMITMENT: |   | $ | 3,333,333.33  |   |
|-----------------------------|--------|---|---------------|--------|
| FLOORPLAN COMMITMENT:       |   | $ | 11,666,666.67 |   |

 

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SCHEDULE 1.01-A

 

APPLICABLE RATES

 

WORKING CAPITAL LOANS

 
| **Tier** | ** ** | **Consolidated Leverage  Ratio** | ** ** | **Applicable  LIBOR Margin** | ** ** | **Applicable  Base Rate  Margin** | ** ** | **Applicable  Working  Capital  Commitment  Fee Margin** | ** ** | **Applicable L/C  Margin** | ** ** |
|----------|------------|---------------------------------------|------------|-----------------------------------|------------|----------------------------------------|------------|---------------------------------------------------------------|------------|---------------------------------|------------|
| 1        |       | <1.50                              |       | 1.5000                            | %          | 0.5000                                 | %          | 0.2000                                                        | %          | 1.5000                          | %          |
| 2        |       | >1.50 but <2.00                 |       | 1.7500                            | %          | 0.7500                                 | %          | 0.3000                                                        | %          | 1.7500                          | %          |
| 3        |       | >2.00                              |       | 2.0000                            | %          | 1.0000                                 | %          | 0.4000                                                        | %          | 2.0000                          | %          |

 

FLOORPLAN LOANS

 
| **Tier** | ** ** | **Consolidated Leverage  Ratio** | ** ** | **Applicable  LIBOR Margin** | ** ** | **Applicable   Base Rate   Margin** | ** ** | **Applicable  Floorplan  Commitment  Fee Margin** | ** ** |
|----------|------------|---------------------------------------|------------|-----------------------------------|------------|----------------------------------------------------|------------|--------------------------------------------------------|------------|
| 1        |       | <1.50                              |       | 1.5000                            | %          | 0.5000                                             | %          | 0.2000                                                 | %          |
| 2        |       | >1.50 but <2.00                 |       | 1.7500                            | %          | 0.7500                                             | %          | 0.3000                                                 | %          |
| 3        |       | >2.00                              |       | 2.0000                            | %          | 1.0000                                             | %          | 0.4000                                                 | %          |

 

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