THIRD AMENDMENT

EX-4.1 2 g12923exv4w1.htm EX-4.1 THIRD AMENDMENT TO FIVE-YEAR CREDIT AGREEMENT EX-4.1 Third Amendment to Five-Year Credit Agreeme

Exhibit 4.1

EXECUTION COPY

THIRD AMENDMENT

THIRD AMENDMENT, dated as of March 26, 2008 (this “Amendment”), to the FIVE-YEAR CREDIT AGREEMENT, dated as of July 14, 2005, as amended by the First Amendment thereto dated as of April 12, 2006 and the Second Amendment thereto dated as of July 18, 2007, among AUTONATION, INC., a Delaware corporation (the “Borrower”), the Lenders party thereto, J.P. MORGAN SECURITIES INC. and BANC OF AMERICA SECURITIES LLC, as co-lead arrangers and joint bookrunners, BANK OF AMERICA, N.A., as syndication agent, JPMORGAN CHASE BANK, N.A., as administrative agent (in such capacity, the “Administrative Agent”), and the other agents party thereto (as amended, supplemented or otherwise modified from time to time, the “Credit Agreement”).

W I T N E S S E T H:

WHEREAS, the Borrower has requested an amendment to the Credit Agreement as more fully set forth herein; and

WHEREAS, the Lenders party hereto have agreed to such amendment but only on the terms and conditions contained in this Amendment;

NOW, THEREFORE, the parties hereto hereby agree as follows:

SECTION 1. Defined Terms. Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall have the meanings given to them in the Credit Agreement.

SECTION 2. Amendment. Effective as of the date on which all the conditions precedent set forth in Section 3 hereof shall be satisfied (such date, the “Effective Date”), the Credit Agreement shall be amended by replacing the definition of “Consolidated EBITDA” with the following:

“Consolidated EBITDA” means, with respect to the Borrower and its Subsidiaries for any period of computation thereof during such period, (a) the sum of, without duplication, (i) Consolidated Net Income, plus (ii) Consolidated Interest Expense during such period, plus (iii) taxes on income during such period, plus (iv) amortization during such period, plus (v) depreciation during such period (with the exclusion of any depreciation related to Vehicles), plus (vi) non-cash charges arising from share-based payments (as defined in accordance with GAAP) to employees and directors, plus (vii) to the extent reflected as a charge in the statement of Consolidated Net Income for such period, any non-cash impairment charge or asset write-off of the Borrower and its Subsidiaries pursuant to Financial Accounting Standards Board Statement No. 142 “Goodwill and Other Intangible Assets” or Financial Accounting Standards Board Statement No. 144 “Accounting for the Impairment or Disposal of Long-Lived Assets” and the amortization of intangibles arising pursuant to Financial Accounting Standards Board Statement No. 141 or No. 141 (revised 2007) “Business Combinations” minus (b) any cash payments made during such period in respect of items described in clause (vii) above subsequent to the fiscal quarter in which the relevant non-cash charges were reflected as a charge in the statement of Consolidated Net Income; the foregoing to be determined on a consolidated basis in accordance with GAAP applied on a Consistent Basis subject to the Acquisition Adjustments.

SECTION 3. Conditions to Effectiveness. This Amendment shall become effective upon the date on which each of the following conditions shall have been satisfied:

(a) the Administrative Agent shall have received this Amendment, executed and delivered by a duly authorized officer of (i) the Borrower, (ii) the Administrative Agent and (iii) the Required Lenders; and

(b) the Administrative Agent shall have received evidence that all fees payable by the Borrower on the Effective Date to the Administrative Agent required pursuant to Section 5 hereof have been paid in full.

SECTION 4. Representations and Warranties. The Borrower hereby represents and warrants to the Administrative Agent and each Lender that:

(a) The Borrower has the power and authority to execute, deliver and perform this Amendment and to borrow under the Amended Credit Agreement. The Borrower has taken all necessary corporate or other action to authorize the execution, delivery and performance of this Amendment and to authorize the borrowings under the Amended Credit Agreement. No material consent, approval or authorization of or filing, registration or qualification with, any Governmental Authority or other authority or any other Person on the part of the Borrower or any Subsidiary is required as a condition to the execution, delivery, performance or consummation of the transactions contemplated by this Amendment, except consents, approvals, filings, registrations or qualifications which have been obtained or effected, as the case may be and are in full force and effect. This Amendment has been duly executed and delivered on behalf of the Borrower. This Amendment constitutes a legal, valid and binding obligation of the Borrower, enforceable against the Borrower in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforcement of creditors’ rights generally and by general equitable principles (whether enforcement is sought by proceedings in equity or at law).

(b) The execution, delivery and performance of this Amendment will not violate any applicable law, rule or regulation or conflict with any material indenture, agreement or other instrument to which the Borrower is a party, or by which the properties or assets of the Borrower is bound and will not result in the creation or imposition of any Lien, charge or encumbrance of any nature whatsoever upon any of the properties or assets of the Borrower pursuant to any such agreement.

(c) Each of the representations and warranties made by any Loan Party herein or in the Loan Documents as amended by this Amendment is true and correct on and as of the Effective Date, as if made on and as of such date (except that any representation or warranty which by its terms is made as of an earlier date shall be true and correct as of such earlier date); and

(d) There does not exist any Default or Event of Default.

SECTION 5. Payment of Expenses. The Borrower agrees to pay or reimburse the Administrative Agent for all of its reasonable and documented out-of-pocket costs and expenses incurred in connection with this Amendment and the transactions contemplated hereby, including the reasonable fees and expenses of counsel to the Administrative Agent to the extent invoiced prior to or on the Effective Date (which may include amounts constituting reasonable estimates of such fees and expenses incurred or to be incurred in connection with this Amendment; provided that no such estimate shall thereafter preclude the final settling of accounts as to such fees and expenses).

SECTION 6. No Other Amendments or Waivers; Confirmation. Except as expressly provided hereby, all of the terms and provisions of the Credit Agreement and the other Loan Documents are and shall remain in full force and effect. The amendments contained herein shall not be construed as an amendment of any other provision of the Credit Agreement or the other Loan Documents or for any purpose except as expressly set forth herein or a consent to any further or future action on the part of the Borrower that would require the waiver or consent of the Administrative Agent or the Lenders.

SECTION 7. GOVERNING LAW; MISCELLANEOUS. (a) THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.

(b) On and after the Effective Date, each reference in the Credit Agreement to “this Agreement”, “hereunder”, “hereof”, “herein”, or words of like import referring to the Credit Agreement, and each reference in the other Loan Documents to the “Credit Agreement”, “thereunder”, “thereof”, or words of like import referring to the Credit Agreement shall mean and be a reference to the Credit Agreement as amended by this Amendment.

(c) This Amendment may be executed by one or more of the parties to this Agreement on any number of separate counterparts, and all of said counterparts taken together shall be deemed to constitute one and the same instrument. A set of the copies of this Amendment signed by all the parties shall be lodged with the Borrower and the Administrative Agent. This Amendment may be delivered by facsimile transmission of the relevant signature pages hereof.

(d) The Administrative Agent shall give notice to the Borrower promptly upon the occurrence of the “Effective Date.”

(e) The execution and delivery of this Amendment by any Lender shall be binding upon each of its successors and assigns (including assignees of its Loans or Revolving Credit Commitments in whole or in part prior to effectiveness hereof).

IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed and delivered by their respective proper and duly authorized officers as of the day and year first above written.


AUTONATION, INC.
By:	/s/ James J. Teufel
	Name:	James J. Teufel
	Title:	Vice President and Treasurer


JPMORGAN CHASE BANK, N.A., as Administrative Agent and as Lender
By:	/s/ Robert P. Kellas
	Name:	Robert P. Kellas
	Title:	Executive Director