NOTE
Exhibit 10.9
NOTE
February 17, 2006
FOR VALUE RECEIVED, each of the undersigned (each a “Borrower” and collectively the “Borrowers”) hereby promises, jointly and severally, to pay to FIFTH THIRD BANK or registered assigns (the “Lender”), in accordance with the provisions of the Credit Agreement (as hereinafter defined), the principal amount of each Revolving Loan from time to time made by the Lender to Sonic Automotive, Inc. (the “Company”) under the Credit Agreement, the principal amount of each New Vehicle Floorplan Loan from time to time made by the Lender to the Company or any New Vehicle Borrower under the Credit Agreement, and the principal amount of each Used Vehicle Floorplan Loan from time to time made by the Lender to the Company under that certain Credit Agreement, dated as of February 17, 2006 (as amended, restated, extended, supplemented or otherwise modified in writing from time to time, the “Credit Agreement”, the terms defined therein being used herein as therein defined), among the Company, certain Subsidiaries of the Company from time to time party thereto, the Lenders from time to time party thereto, and Bank of America, N.A., as Administrative Agent, L/C Issuer, Revolving Swing Line Lender, New Vehicle Swing Line Lender, and Used Vehicle Swing Line Lender.
Each Borrower promises, jointly and severally, to pay interest on the unpaid principal amount of each Loan from the date of such Revolving Loan, New Vehicle Floorplan Loan or Used Vehicle Floorplan Loan until such principal amount is paid in full, at such interest rates and at such times as provided in the Credit Agreement. Except as otherwise provided in Section 2.04(f) of the Credit Agreement with respect to Revolving Swing Line Loans, Section 2.08(h) with respect to New Vehicle Floorplan Swing Line Loans, and Section 2.13(f) with respect to Used Vehicle Floorplan Swing Line Loans, all payments of principal and interest shall be made to the Administrative Agent for the account of the Lender in Dollars in immediately available funds at the Administrative Agent’s Office. If any amount is not paid in full when due hereunder, such unpaid amount shall bear interest, to be paid upon demand, from the due date thereof until the date of actual payment (and before as well as after judgment) computed at the per annum rate set forth in the Credit Agreement.
This Note is one of the Notes referred to in the Credit Agreement, is entitled to the benefits thereof and may be prepaid in whole or in part subject to the terms and conditions provided therein. This Note is also entitled to the benefits of the Guaranties and is secured by the Collateral. Upon the occurrence and continuation of one or more of the Events of Default specified in the Credit Agreement, all amounts then remaining unpaid on this Note shall (if required by the Credit Agreement) become, or may be declared to be, immediately due and payable all as provided in the Credit Agreement. Revolving Loans, New Vehicle Floorplan Loans and Used Vehicle Floorplan Loans made by the Lender shall be evidenced by one or more loan accounts or records maintained by the Lender in the ordinary course of business. The Lender may also attach schedules to this Note and endorse thereon the date, amount and maturity of its Revolving Loans, New Vehicle Floorplan Loans and Used Vehicle Floorplan Loans and payments with respect thereto.
Each Borrower, for itself, its successors and assigns, hereby waives diligence, presentment, protest and demand and notice of protest, demand, dishonor and non-payment of this Note.
THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NORTH CAROLINA.
| SONIC AUTOMOTIVE, INC. | ||
| By: | /s/ Xxxx Xxxxx | |
| Name: | Xxxx Xxxxx | |
| Title: | Vice President/Chief Accounting Officer | |
| AVALON FORD, INC. | ||
| CAPITOL CHEVROLET AND IMPORTS, INC. | ||
| FAA AUTO FACTORY, INC. | ||
| FAA XXXXXXX HILLS, INC. | ||
| FAA CAPITOL N, INC. | ||
| FAA CONCORD H, INC. | ||
| FAA CONCORD T, INC. | ||
| FAA DUBLIN N, INC. | ||
| FAA DUBLIN VWD, INC. | ||
| FAA LAS VEGAS H, INC. | ||
| FAA POWAY T, INC. | ||
| FAA SAN BRUNO, INC. | ||
| FAA SANTA XXXXXX V, INC. | ||
| FAA SERRAMONTE, INC. | ||
| FAA SERRAMONTE H, INC. | ||
| FAA SERRAMONTE L, INC. | ||
| FAA STEVENS CREEK, INC. | ||
| FORT XXXXX COLLISION CENTER, LLC | ||
| FRANCISCAN MOTORS, INC. | ||
| XXXXXX MOTORS INCORPORATED | ||
| XXXXXX XXXXX CORPORATION | ||
| MOUNTAIN STATES MOTORS CO., INC. | ||
| ONTARIO L, LLC | ||
| XXXXXXXX MOTORS, LTD. | ||
| RIVERSIDE NISSAN, INC. | ||
| SANTA XXXXX IMPORTED CARS, INC. | ||
| SONIC AUTOMOTIVE – 0000 XXXXXXXX XXXXX, XXXXXXXX, INC. | ||
| By: | /s/ Xxxxxx X’Xxxxxx | |
| Name: | Xxxxxx X’Xxxxxx | |
| Title: | Assistant Treasurer | |
| SONIC AUTOMOTIVE – 0000 XXXXXXXX XXXXX, XXXXXXXX, INC. SONIC AUTOMOTIVE – 0000 XXXXXXXX XXXXX, XXXXXXXX, INC. SONIC AUTOMOTIVE 0000 XXXXXXXXX XXXXXXXXXX XXXX., LLC SONIC AUTOMOTIVE – 0000 X. XXXX XXXXX, XX, INC. SONIC AUTOMOTIVE – 0000 X. XXXXXXXXXXXX, XX, LLC SONIC ADVANTAGE PA, L.P. SONIC – XXX ARBOR IMPORTS, INC. SONIC – XXXXXXX H, INC. SONIC – BUENA PARK H, INC. SONIC – CADILLAC D, L.P. SONIC – CALABASAS A, INC. SONIC – CALABASAS V, INC. SONIC – CAPITOL IMPORTS, INC. SONIC – CARROLLTON V, L.P. SONIC – CLEAR LAKE VOLKSWAGEN, L.P. SONIC – CREST H, LLC SONIC – DENVER T, INC. SONIC – XXXXXX CADILLAC, INC. SONIC – ENGLEWOOD M, INC. SONIC – FM VW, INC. SONIC – FORT WORTH T, L.P. SONIC – XXXXXXXX, INC. SONIC – HARBOR CITY H, INC. SONIC – HOUSTON V, L.P SONIC – JERSEY VILLAGE VOLKSWAGEN, L.P. SONIC – LAKE XXXXXX XXXXX, LLC SONIC – XXXXX NISSAN, INC. SONIC – XXXX XXXXX, L.P. SONIC – MANHATTAN FAIRFAX, INC. SONIC – XXXXXX CHEVROLET, INC. SONIC – MESQUITE HYUNDAI, L.P. SONIC MOMENTUM JVP, L.P. SONIC MOMENTUM VWA, L.P. SONIC XXXXXXXXXX B, INC. | ||
| By: | /s/ Xxxxxx X’Xxxxxx | |
| Name: | Xxxxxx X’Xxxxxx | |
| Title: | Assistant Treasurer | |
| SONIC – XXXXXXX OF XXXXXXXX, INC. SONIC – NORTH CHARLESTON, INC. SONIC – OKLAHOMA T, INC. SONIC – ROCKVILLE IMPORTS, INC. SONIC – ROCKVILLE MOTORS, INC. SONIC – SERRAMONTE I, INC. SONIC – XXXXXXXXXXX, INC. SONIC – STEVENS CREEK B, INC. SONIC – UNIVERSITY PARK A, L.P. SONIC – VOLVO LV, LLC SONIC – WEST COVINA T, INC. SONIC – XXXXXXXX BUICK, INC. SONIC – XXXXXXXX IMPORTS, INC. SONIC – XXXXXXXX MOTORS, LLC SONIC – 0000 XXXXXXX XX., XXXXXXXXXXX, XXX XXXXXXXX CHEVROLET, INC. VILLAGE IMPORTED CARS, INC. WINDWARD, INC. WRANGLER INVESTMENTS, INC. | ||
| By: | /s/ Xxxxxx X’Xxxxxx | |
| Name: | Xxxxxx X’Xxxxxx | |
| Title: | Assistant Treasurer | |
ACKNOWLEDGEMENT OF EXECUTION ON BEHALF OF
Certain Subsidiaries of Sonic Automotive, Inc.
STATE OF North Carolina
COUNTY OF Mecklenburg
Before me, the undersigned, a Notary Public in and for said County and State on this 15th day of February, 2006, personally appeared Xxxxxx X’Xxxxxx, known to be the Assistant Treasurer of each of the entities listed on Exhibit A hereto (collectively, the “Companies”), who is personally known to me or who has produced as identification, being by me duly sworn, and that by authority duly given by, and as the act of, each of the Companies, the foregoing Note was signed by him as said Assistant Treasurer on behalf of each of the Companies.
Witness my hand and official seal this 15th day of February, 2006.
| /s/ Xxxxx Xxxxxxxx-Xxxx |
| Notary Public |
(NOTARY SEAL)
My commission expires: June 17, 2008
NOTE
Notary Page
EXHIBIT A
AVALON FORD, INC.
CAPITOL CHEVROLET AND IMPORTS, INC.
FAA AUTO FACTORY, INC.
FAA XXXXXXX HILLS, INC.
FAA CAPITOL N, INC.
FAA CONCORD H, INC.
FAA CONCORD T, INC.
FAA DUBLIN N, INC.
FAA DUBLIN VWD, INC.
FAA LAS VEGAS H, INC.
FAA POWAY T, INC.
FAA SAN BRUNO, INC.
FAA SANTA XXXXXX V, INC.
FAA SERRAMONTE, INC.
FAA SERRAMONTE H, INC.
FAA SERRAMONTE L, INC.
FAA STEVENS CREEK, INC.
FORT XXXXX COLLISION CENTER, LLC
FRANCISCAN MOTORS, INC.
XXXXXX MOTORS INCORPORATED
XXXXXX XXXXX CORPORATION
MOUNTAIN STATES MOTORS CO., INC.
ONTARIO L, LLC
XXXXXXXX MOTORS, LTD.
RIVERSIDE NISSAN, INC.
SANTA XXXXX IMPORTED CARS, INC.
SONIC AUTOMOTIVE – 0000 XXXXXXXX XXXXX, XXXXXXXX, INC.
SONIC AUTOMOTIVE – 0000 XXXXXXXX XXXXX, XXXXXXXX, INC.
SONIC AUTOMOTIVE – 0000 XXXXXXXX XXXXX, XXXXXXXX, INC.
SONIC AUTOMOTIVE 0000 XXXXXXXXX XXXXXXXXXX XXXX., XXX
SONIC AUTOMOTIVE – 0000 X. XXXX XXXXX, XX, INC.
SONIC AUTOMOTIVE – 0000 X. XXXXXXXXXXXX, XX, LLC
SONIC ADVANTAGE PA, L.P.
SONIC – XXX ARBOR IMPORTS, INC.
SONIC – XXXXXXX H, INC.
SONIC – BUENA PARK H, INC.
SONIC – CADILLAC D, L.P.
SONIC – CALABASAS A, INC.
SONIC – CALABASAS V, INC.
SONIC – CAPITOL IMPORTS, INC.
SONIC – CARROLLTON V, L.P.
SONIC – CLEAR LAKE VOLKSWAGEN, L.P.
SONIC – CREST H, LLC
SONIC – DENVER T, INC.
SONIC – XXXXXX CADILLAC, INC.
SONIC – ENGLEWOOD M, INC.
SONIC – FM VW, INC.
SONIC – FORT WORTH T, L.P.
SONIC – XXXXXXXX, INC.
SONIC – HARBOR CITY H, INC.
SONIC – HOUSTON V, L.P
SONIC – JERSEY VILLAGE VOLKSWAGEN, L.P.
SONIC – LAKE XXXXXX XXXXX, LLC
SONIC – XXXXX NISSAN, INC.
SONIC – XXXX XXXXX, L.P.
SONIC – MANHATTAN FAIRFAX, INC.
SONIC – XXXXXX CHEVROLET, INC.
SONIC – MESQUITE HYUNDAI, L.P.
SONIC MOMENTUM JVP, L.P.
SONIC MOMENTUM VWA, L.P.
SONIC XXXXXXXXXX B, INC.
SONIC – XXXXXXX OF XXXXXXXX, INC.
SONIC – NORTH CHARLESTON, INC.
SONIC – OKLAHOMA T, INC.
SONIC – ROCKVILLE IMPORTS, INC.
SONIC – ROCKVILLE MOTORS, INC.
SONIC – SERRAMONTE I, INC.
SONIC – XXXXXXXXXXX, INC.
SONIC – STEVENS CREEK B, INC.
SONIC – UNIVERSITY PARK A, L.P.
SONIC – VOLVO LV, LLC
SONIC – WEST COVINA T, INC.
SONIC – XXXXXXXX BUICK, INC.
SONIC – XXXXXXXX IMPORTS, INC.
SONIC – XXXXXXXX MOTORS, LLC
SONIC – 0000 XXXXXXX XX., XXXXXXXXXXX, LLC
SPEEDWAY CHEVROLET, INC.
VILLAGE IMPORTED CARS, INC.
WINDWARD, INC.
WRANGLER INVESTMENTS, INC.
ACKNOWLEDGEMENT OF EXECUTION ON BEHALF OF
Certain Subsidiaries of Sonic Automotive, Inc.
STATE OF Texas
COUNTY OF Tarrant
Before me, the undersigned, a Notary Public in and for said County and State on this 16th day of February, 2006, personally appeared Xxxx Xxxxx, known to be the Vice President/Chief Accounting Officer of Sonic Automotive, Inc., who is personally known to me or who has produced Drivers License as identification, being by me duly sworn, and that by authority duly given by, and as the act of, Sonic Automotive, Inc., the foregoing Note was signed by him as said Vice President/Chief Accounting Officer on behalf of Sonic Automotive, Inc.
Witness my hand and official seal this 16th day of February, 2006.
| /s/ Xxxxx Xxxxxxxx |
| Notary Public |
(NOTARY SEAL)
My commission expires: 6/18/08
NOTE
Notary Page
