EXHIBIT 10.1
SEVENTH AMENDMENT
THIS SEVENTH AMENDMENT dated as of May 1, 2003 (this "Amendment") is to
the Amended and Restated Credit Agreement (as heretofore amended, the "Credit
Agreement") dated as of December 22, 2000 among UNITED AUTO GROUP, INC. (the
"Company"), various financial institutions (the "Lenders") and DAIMLERCHRYSLER
SERVICES NORTH AMERICA LLC (formerly Chrysler Financial Company L.L.C.), as
agent for the Lenders (the "Agent"). Unless otherwise defined herein, terms
defined in the Credit Agreement are used herein as defined in the Credit
Agreement.
WHEREAS, the parties hereto desire to amend the Credit Agreement in
certain respects;
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration (the receipt and sufficiency of which are hereby
acknowledged), the parties hereto agree as follows:
SECTION 1 AMENDMENTS. Effective on (and subject to the occurrence of)
the Amendment Effective Date (as defined below):
1.1 The following definitions shall be added to Section 1.1 of the
Credit Agreement, each in its appropriate alphabetical position:
Non-Designated Acquisition B Loans -- see Section 9.12(b).
Working Capital Sublimit -- see Section 6.3(e).
1.2 Section 5.2 of the Credit Agreement shall be amended by
substituting the term "Acquisition B Loans" for the term "Loans" therein.
1.3 Section 6.3 of the Credit Agreement shall be amended by adding the
following clause (e):
(e) If at any time the aggregate principal amount of Revolving
Loans (other than Revolving Loans used to finance the purchase price of
an Acquisition) plus the aggregate principal amount of Non-Designated
Acquisition B Loans plus the Stated Amount of all Letters of Credit
exceeds $125,000,000 (the "Working Capital Sublimit"), the Company
shall immediately prepay Revolving Loans and/or Acquisition B Loans in
an amount and/or Cash Collateralize Letters of Credit sufficient to
eliminate such excess. For the avoidance of doubt, all such prepayments
shall be deemed applied to prepay Revolving Loans (other than those
used to finance the purchase price of an Acquisition) and/or
Non-Designated Acquisition B Loans, as applicable.
1.4 Section 9.12(b) shall be amended and restated in its entirety to
read as follows:
(b) Use the proceeds of Acquisition B Loans solely for (x)
Acquisitions permitted by Section 9.10 and (y) working capital (all
such Acquisition B Loans used to finance working capital,
"Non-Designated Acquisition B Loans").
1.5 Section 10.3 of the Credit Agreement shall be amended and restated
in its entirety to read as follows:
10.3 Further Conditions to Acquisition Loans and Acquisition B
Loans.
10.3.1 Acquisition Loans. In addition to the conditions set
forth in Sections 10.1 and 10.2, the obligation of each Lender to make
each Acquisition Loan is subject to the following further conditions
precedent that:
(a) all of the proceeds of each such Acquisition Loan shall be
used to consummate an Acquisition;
(b) the Agent shall have received evidence of compliance by
the Person to be acquired in such Acquisition with all auto
manufacturers' working capital requirements; and
(c) the Agent shall have received a certificate from the Chief
Financial Officer of the Company to the effect that (i) no Event of
Default or Unmatured Event of Default shall exist after giving effect
to the consummation of such Acquisition and (ii) confirming the matters
set forth in clause (a) above.
10.3.2 Acquisition B Loans. In addition to the conditions set
forth in Sections 10.1 and 10.2, the obligation of each Lender to make
each Acquisition B Loan is subject to the following further conditions
precedent that:
(a) all of the proceeds of each such Acquisition B Loan shall
be used (x) to consummate an Acquisition or (y) for working capital;
(b) in the case of Acquisition B Loans other than
Non-Designated Acquisition B Loans, the Agent shall have received
evidence of compliance by the Person to be acquired in such Acquisition
with all auto manufacturers' working capital requirements; and
(c) in the case of Acquisition B Loans other than
Non-Designated Acquisition B Loans, the Agent shall have received a
certificate from the Chief Financial Officer of the Company to the
effect that (i) no Event of Default or Unmatured Event of Default shall
exist after giving effect to the consummation of such Acquisition and
(ii) all of the proceeds of such Acquisition B Loans shall be used to
consummate an Acquisition.
SECTION 2 REPRESENTATIONS AND WARRANTIES. The Company represents and
warrants to the Agent and the Lenders that: (a) the representations and
warranties made in Section 8 of the Credit Agreement are true and correct on and
as of the Amendment Effective Date (as defined below) with the same effect as if
made on and as of the Amendment Effective Date (except to the extent relating
solely to an earlier date, in which case they were true and correct as of such
earlier date); (b) no Event of Default or Unmatured Event of Default exists or
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will result from the execution of this Amendment; (c) no event or circumstance
has occurred since the Effective Date that has resulted, or would reasonably be
expected to result, in a Material Adverse Effect; (d) the execution and delivery
by the Company of this Amendment and the performance by the Company of its
obligations under the Credit Agreement as amended hereby (as so amended, the
"Amended Credit Agreement") (i) are within the corporate powers of the Company,
(ii) have been duly authorized by all necessary corporate action, (iii) have
received all necessary approval from any governmental authority and (iv) do not
and will not contravene or conflict with any provision of any law, rule or
regulation or any order, decree, judgment or award which is binding on the
Company or any of its Subsidiaries or of any provision of the certificate of
incorporation or bylaws or other organizational documents of the Company or of
any agreement, indenture, instrument or other document which is binding on the
Company or any of its Subsidiaries; and (e) the Amended Credit Agreement is the
legal, valid and binding obligation of the Company, enforceable against the
Company in accordance with its terms, except as enforceability may be limited by
applicable bankruptcy, insolvency or similar laws affecting the enforcement of
creditors' rights generally or by equitable principles relating to
enforceability.
SECTION 3 EFFECTIVENESS. The amendments set forth in Section 1 above
shall become effective on such date (the "Amendment Effective Date") when the
Agent shall have received (a) a counterpart of this Amendment executed by the
Company and the Required Lenders (or, in the case of any party other than the
Company from which the Agent has not received a counterpart hereof, facsimile
confirmation of the execution of a counterpart hereof by such party) and (b)
each of the following documents, each in form and substance satisfactory to the
Agent:
3.1 Reaffirmation. A counterpart of the Reaffirmation of Loan
Documents, substantially in the form of Exhibit A, executed by each Loan Party
other than the Company.
3.2 Other Documents. Such other documents as the Agent or any Lender
may reasonably request.
SECTION 4 MISCELLANEOUS.
4.1 Continuing Effectiveness, etc. As hereby amended, the Credit
Agreement shall remain in full force and effect and is hereby ratified and
confirmed in all respects. As of the Amendment Effective Date, all references in
the Credit Agreement, the Notes, each other Loan Document and any similar
document to the "Credit Agreement" or similar terms shall refer to the Amended
Credit Agreement.
4.2 Counterparts. This Amendment may be executed in any number of
counterparts and by the different parties on separate counterparts, and each
such counterpart shall be deemed to be an original but all such counterparts
shall together constitute one and the same Amendment.
4.3 Expenses. The Company agrees to pay the reasonable costs and
expenses of the Agent (including reasonable fees and disbursements of counsel,
including, without duplication,
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the allocable costs of internal legal services and all disbursements of internal
legal counsel) in connection with the preparation, execution and delivery of
this Amendment.
4.4 Governing Law. This Amendment shall be a contract made under and
governed by the laws of the State of New York applicable to contracts made and
to be wholly performed within the State of New York.
4.5 Successors and Assigns. This Amendment shall be binding upon the
Company, the Lenders and the Agent and their respective successors and assigns,
and shall inure to the benefit of the Company, the Lenders and the Agent and the
successors and assigns of the Lenders and the Agent.
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Delivered as of the day and year first above written.
UNITED AUTO GROUP, INC.
By: /s/ Xxxxx X. Xxxxxxxx
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Title: EVP
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DAIMLERCHRYSLER SERVICES NORTH
AMERICA LLC, as Agent, as Issuing
Lender and as a Lender
By: /s/ X.X. Xxxxxx
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Title: V.P. of Credit
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TOYOTA MOTOR CREDIT CORPORATION,
as a Lender
By: /s/ Xxxxx Xxxxxxxxxxx
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Title: Group Vice President
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