EXHIBIT 10.1.19.8
SECOND AMENDMENT
THIS SECOND AMENDMENT dated as of February 8, 2002 (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:
DCSNA means DaimlerChrysler Services North America LLC.
Second Amendment Effective Date means the "Amendment Effective
Date" under and as defined in the Second Amendment to this Agreement
dated as of February 8, 2002.
U.K. Acquisition means the acquisition by the U.K. Subsidiary
of not less than 75% of the shares of the U.K. Target in accordance
with the U.K. Acquisition Offer.
U.K. Acquisition Offer means the offer made by Xxxxxxxxx & Co.
International LLP, as financial advisor to the U.K. Subsidiary, on
behalf of the U.K. Subsidiary, to acquire all of the U.K. Target's
ordinary shares on the terms and subject to the conditions set forth in
the press release issued on or about the Second Amendment Effective
Date, announcing that such financial advisor, on behalf of the U.K.
Subsidiary, will make an offer to holders of the U.K. Target's ordinary
shares on the terms and conditions set forth therein and as disclosed
to the Lenders in connection with the Second Amendment hereto dated as
of February 8, 2002 except that the Company may waive the requirement
that the U.K. Subsidiary has received acceptances of at least 90% of
the shares of the U.K. Target so long as the U.K. Subsidiary has
received acceptances of at least 75% of the shares of the U.K. Target.
U.K. Target means Sytner Group, plc, an English public limited
company.
U.K. Subsidiary means UAG U.K. Holdings Limited, an entity
incorporated under the laws of England.
1.2 Section 6.3(b) of the Credit Agreement shall be amended by
inserting the following "(x) from the Second Amendment Effective Date until 4:00
p.m. (Detroit time) on February 13, 2002, $350,000,000 and (y) at all other
times," immediately prior to the figure "$300,000,000" where it appears in such
Section.
1.3 Section 9.7 of the Credit Agreement shall be amended by (x)
deleting all text in such Section immediately following the semi-colon at the
end of clause (j) thereof and (y) substituting the following therefor:
(k) Floor Plan Financings of the U.K. Target and its
Subsidiaries (with the floor plan providers that are extending Floor
Plan Financing to the U.K. Target and its Subsidiaries in the ordinary
course of business at the time the U.K. Acquisition became effective,
which Floor Plan Financings were not created in anticipation of the
U.K. Acquisition);
(l) loan notes issued by the U.K. Subsidiary to a holder of
U.K. Target's shares in connection with the U.K. Acquisition;
(m) Indebtedness of the U.K. Target and its Subsidiaries
existing at the time the U.K. Target becomes a Subsidiary (other than
Floor Plan Financings), if not incurred by the U.K. Target or any
Subsidiary thereof in anticipation or contemplation of such Person
becoming a Subsidiary of the Company, and Refinancing Debt of the U.K.
Target and its Subsidiaries in respect thereof; and
(n) other Debt, in addition to the Debt listed above, in an
aggregate amount not any time exceeding $20,000,000.
1.4 Section 9.8 of the Credit Agreement shall be amended by (i)
deleting the word "and" following clause (h) of such Section and (ii) inserting
the following at the end of such Section:
(j) Liens securing Debt permitted by Section 9.7(m), provided
that (i) such Liens secured such Debt at the time of and prior to the
effectiveness of the U.K. Acquisition and were not granted in
connection with, or in anticipation or contemplation of, the U.K.
Acquisition and (ii) such Liens do not extend to or cover any assets or
properties of the Company and its Subsidiaries other than the property
or assets that secured the related Debt immediately prior to the
effectiveness of the U.K. Acquisition; and
(k) Liens securing Debt permitted by Section 9.7(l), provided
that such Liens are limited to assets of the U.K. Subsidiary and its
Subsidiaries.
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1.5 Section 9.19 of the Credit Agreement shall be amended by (x)
deleting all text in such Section immediately following the semi-colon at the
end of clause (i) thereof and (y) substituting the following therefor:
(j) one or more Investments, in an aggregate amount not to
exceed $152,000,000 (or the equivalent thereof in British pounds
sterling), in the U.K. Subsidiary, upon consummation of the U.K.
Acquisition;
(k) Investments held by the U.K. Target and its Subsidiaries
at the time the U.K. Target becomes a Subsidiary (provided that such
Investments were not made in anticipation or in contemplation of the
U.K. Acquisition); and
(l) such other Investments consented to by the Agent in its
sole discretion;
provided that (x) any Investment which when made complies with the
requirements of the definition of the term "Cash Equivalent Investment
" may continue to be held notwithstanding that such Investment if made
thereafter would not comply with such requirements; (y) no Investment
otherwise permitted by clause (b), (c), (g) or (i) or (j) shall be
permitted to be made if, immediately before or after giving effect
thereto, any Event of Default or Unmatured Event of Default exists; and
(z) other than expressly provided for in clause (j), no Foreign
Investment shall be permitted to be made after the Second Amendment
Effective Date (provided that any Foreign Investment made with the
proceeds of any offering of equity securities or Subordinated Debt of
the Company shall be permitted after the Second Amendment Effective
Date).
1.6 Section 9.20 of the Credit Agreement shall be amended and
restated in its entirety to read as follows:
9.20 Restriction of Amendments to Certain Documents. Not amend
or otherwise modify, or waive any rights under, either Subordinated
Notes Indenture, the Subordinated Notes or the Approved Swap Documents,
in any case, if such amendment, modification or waiver could reasonably
be expected to be adverse to the Lenders in any respect; not take any
action to terminate any Approved Swap Document if it is a condition to
such termination that the Company make any payment to the counterparty
under such Approved Swap Document, or if a consequence of such
termination would permit such counterparty to retain or sell any
collateral or to demand any payment from the Company; and not amend or
otherwise modify, or waive any rights under, the U.K. Acquisition Offer
without the prior written consent of the Lenders other than the
condition that requires that the U.K. Subsidiary has received
acceptances of at least 90% of the shares of the U.K. Target so long as
the U.K. Subsidiary has received acceptances of at least 75% of the
shares of the U.K. Target and other than amendments, modifications and
waivers of the U.K. Acquisition Offer that are not adverse to the
Lenders.
1.7 The definition of "Permitted Restriction" in Section 1.1 of
the Credit Agreement shall be amended by adding the following at the end of such
definition:
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; or (vi) pursuant to any agreements or arrangements in effect on the
date the U.K. Target becomes a Subsidiary to the extent such
restrictions relate solely to the U.K. Target and its Subsidiaries, and
any amendment, modification or replacement of any such agreement or
arrangement that is not materially more restrictive than those
contained in the agreements or arrangements in effect on the date the
U.K. Target becomes a Subsidiary.
1.8 The Credit Agreement shall be amended by substituting
"DaimlerChrysler Services North America LLC (formerly Chrysler Financial Company
L.L.C.)" and "DCSNA" for each reference to "Chrysler Financial Company L.L.C."
and "CFC" (as applicable) therein.
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 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 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.
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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. After 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, 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
-------------------------------------
Title: Executive Vice President - Finance
-----------------------------------
DAIMLERCHRYSLER SERVICES NORTH
AMERICA LLC (formerly Chrysler Financial
Company L.L.C.), as Agent, as Issuing Lender and
as a Lender
By: /s/ X. X. Xxxxxx
--------------------------------------
Title: Vice President
-----------------------------------
TOYOTA MOTOR CREDIT CORPORATION,
as a Lender
By: /s/ Xxxxxx X. Xxxxxxxx
--------------------------------------
Title: National Accts. Development Mgr.
-----------------------------------
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EXHIBIT A
FORM OF REAFFIRMATION OF
LOAN DOCUMENTS
February 8, 2002
DaimlerChrysler Services North
America LLC, as Agent
and the Lenders party
to the Amended and Restated Credit Agreement
referred to below
00000 Xxxxxxxx Xxxx, 00xx Xxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxxx Xxxxx
RE: REAFFIRMATION OF LOAN DOCUMENTS
Ladies and Gentlemen:
Please refer to:
(a) The Amended and Restated Security Agreement dated as of
December 23, 1999 (the "Security Agreement") among United Auto Group, Inc. (the
"Company"), its subsidiaries and Chrysler Financial Company L.L.C. in its
capacity as Agent (in such capacity, the "Agent");
(b) The Guaranty dated as of October 8, 1999 (the "Guaranty")
executed in favor of the Agent and various other parties by all subsidiaries of
the Company; and
(c) The Pledge Agreement dated as of October 8, 1999 (the "Pledge
Agreement") executed by the Company and certain of its subsidiaries.
Each of the undersigned acknowledges that the Company, the Lenders and
the Agent have executed the Second Amendment (the "Second Amendment") to the
Amended and Restated Credit Agreement dated as of December 22, 2000 (as amended,
supplemented or otherwise modified from time to time, the "Credit Agreement").
Capitalized terms not otherwise defined herein have the meanings given in the
Credit Agreement.
DaimlerChrysler Services North
America LLC, as Agent
February 8, 2002
Each of the undersigned hereby confirms that the Security Agreement,
the Guaranty, the Pledge Agreement and each other Loan Document to which such
undersigned is a party remains in full force and effect after giving effect to
the effectiveness of the Second Amendment and that, upon such effectiveness, all
references in each Loan Document to the "Credit Agreement" shall be references
to the Credit Agreement, as amended by the Second Amendment.
This letter agreement may be signed in counterparts and by the various
parties on separate counterparts. This letter agreement shall be governed by the
laws of the State of New York applicable to contracts made and to be performed
entirely within such State.
UAG NORTHEAST, INC.
DIFEO PARTNERSHIP, INC.
UAG XXXXXX, INC.
SOMERSET MOTORS INC.
UAG NORTHEAST BODY SHOP, INC.
XXXXXXX AUTO SALES, INC.
XXXXXXX UNITED AUTO GROUP NO. 2, INC.
XXXXXXX UNITED AUTO GROUP NO. 6, INC.
XXXXXXX BUICK-PONTIAC, INC.
XXXXXXX FORD NORTH, INC.
UNITED AUTO GROUP, INC.
UAG SOUTHEAST, INC.
UAG DULUTH, INC.
UNITED NISSAN, INC. (GA)
UNITED NISSAN, INC. (NV)
UNITED NISSAN, INC. (TN)
PEACHTREE NISSAN, INC.
UAG WEST, INC.
SA AUTOMOTIVE, LTD.
SL AUTOMOTIVE, LTD.
SPA AUTOMOTIVE, LTD.
LRP, LTD.
SUN MOTORS, LTD.
SCOTTSDALE MANAGEMENT GROUP, LTD.
SAU AUTOMOTIVE, LTD.
SK MOTORS, LTD.
KMT/UAG, INC.
RELENTLESS PURSUIT ENTERPRISES, INC.
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TRI-CITY LEASING, INC.
HT AUTOMOTIVE LTD.
UAG TEXAS, INC.
UAG TEXAS II, INC.
UAG EAST, INC.
WESTBURY SUPERSTORE, LTD.
PALM AUTO PLAZA, INC.
FLORIDA CHRYSLER PLYMOUTH, INC.
WEST PALM NISSAN, INC.
WEST PALM INFINITI, INC.
NORTHLAKE AUTO FINISH, INC.
JS IMPORTS, INC.
WEST PALM AUTO MALL, INC.
AUTO MALL PAYROLL SERVICES, INC.
UAG CAROLINA, INC.
XXXX-XXXXXXX CHEVROLET, INC.
XXXXXXX CHEVROLET-OLDSMOBILE, INC.
XXXX XXXX CHEVROLET, INC.
UNITEDAUTO DODGE OF SHREVEPORT,
INC.
XXXXXXXXX PIKE DODGE, INC.
THE NEW GRACELAND DODGE, INC.
UAG GRACELAND II, INC.
UAG MEMPHIS II, INC.
UAG MEMPHIS IV, INC.
UAG MEMPHIS V, INC.
UAG-CARIBBEAN, INC.
XXX XXXXX CHEVROLET INC.
YOUNG MANAGEMENT GROUP, INC.
UAG YOUNG II, INC.
UAG PARAMOUNT MOTORS, INC.
UAG KISSIMMEE MOTORS, INC.
UAG CLASSIC, INC.
CLASSIC AUTO GROUP, INC.
UAG CHCC, INC.
CLASSIC MANAGEMENT COMPANY, INC.
UAG CHEVROLET, INC.
CLASSIC IMPORTS, INC.
UNITED AUTOCARE, INC.
UNITED AUTOCARE PRODUCTS, INC.
UNITEDAUTO FOURTH FUNDING INC.
UNITEDAUTO FIFTH FUNDING INC.
UAG FINANCE COMPANY, INC.
CLASSIC MOTOR SALES LLC
X. XXXXX CHEVROLET LLC
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XXX XXXXX MOTORS LLC
UAG YOUNG AUTOMOTIVE GROUP LLC
YOUNG AUTOMOTIVE HOLDINGS LLC
EUROPA AUTO IMPORTS, INC.
UAG LAKE XXXXXX, LLC
UAG INDIANAPOLIS, LLC
MOTORCARS ACQUISITION, LLC
MOTORCARS ACQUISITION II, LLC
MOTORCARS ACQUISITION III, LLC
SCOTTSDALE FERRARI, LLC
UAG OLDSMOBILE OF INDIANA, LLC
ATLANTIC AUTO FUNDING CORPORATION
ATLANTIC AUTO SECOND FUNDING
CORPORATION
ATLANTIC AUTO THIRD FUNDING
CORPORATION
XXXXXXX NORTH, LLC
XXXXXXX PONTIAC GMC, LLC
XXXXXXX SPRING BRANCH, LLC
PIONEER FORD WEST, LLC
UAG CERRITOS, LLC
UAG CONNECTICUT, LLC
UAG CONNECTICUT I, LLC
UAG FAIRFIELD CA, LLC
UAG FAIRFIELD CM, LLC
UAG FAIRFIELD CP, LLC
UAG FAIRFIELD CV, LLC
UAG HOUSTON ACQUISITION, LLC
UAG INTERNATIONAL HOLDINGS, INC.
UAG XXXXXXX SPRINGDALE, LLC
UAG MENTOR ACQUISITION, LLC
UAG MICHIGAN CADILLAC, LLC
UAG MICHIGAN PONTIAC-GMC, LLC
UAG ATLANTA IV MOTORS, INC.
UAG MICHIGAN T1, LLC
UAG MICHIGAN TMV, LLC
UAG PHOENIX VC, LLC
UAG REALTY, LLC
UAG SPRING, LLC
UNITED AUTO FINANCE, INC.
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UNITED RANCH AUTOMOTIVE, LLC
XXXXX XXXXXX CHEVROLET -- GEO, INC.
H.B.L., INC.
MOTORCARS ACQUISITION IV, LLC
UAG NANUET I, LLC
UAG NANUET II, LLC
NISSAN OF NORTH OLMSTED, LLC
XXXXXXX NISSAN, LLC
UAG TULSA HOLDINGS, LLC
UAG FAYETTEVILLE I, LLC
UAG FAYETTEVILLE II, LLC
UAG FAYETTEVILLE III, LLC
By: /s/ Xxxxx X. Xxxxxxxx
------------------------------------
Title: Asst. Treasurer
------------------------------
DIFEO HYUNDAI PARTNERSHIP
DIFEO NISSAN PARTNERSHIP
DIFEO CHRYSLER PLYMOUTH JEEP EAGLE
PARTNERSHIP
DIFEO LEASING PARTNERSHIP
DANBURY AUTO PARTNERSHIP
DIFEO TENAFLY PARTNERSHIP
OCT PARTNERSHIP
XXXXXX MOTORS PARTNERSHIP
COUNTY AUTO GROUP PARTNERSHIP
SOMERSET MOTORS PARTNERSHIP
By: DIFEO PARTNERSHIP, INC.
a general partner
By: /s/ Xxxxx X. Xxxxxxxx
------------------------------------
Title: Asst. Treasurer
------------------------------
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XXXXXXX AUTOMOTIVE, LTD.
By: UAG TEXAS, INC.
a general partner
By: /s/ Xxxxx X. Xxxxxxxx
----------------------------------
Title: Asst. Treasurer
--------------------------------
UAG CITRUS MOTORS, LLC
By: UAG CITRUS, INC.
Member
By: /s/ Xxxxx X. Xxxxxxxx
----------------------------------
Title: Asst. Treasurer
--------------------------------
CLASSIC ENTERPRISES, LLC
CLASSIC NISSAN OF TURNERSVILLE, LLC
By: UAG CLASSIC, INC.
Member
By: /s/ Xxxxx X. Xxxxxxxx
----------------------------------
Title: Asst. Treasurer
--------------------------------
XXXXXXX FORD, INC
NATIONAL CITY FORD, INC.
CENTRAL FORD CENTER, INC.
PIONEER FORD SALES, INC.
By: /s/ Xxxxx X. Xxxxxxxx
----------------------------------
Title: Asst. Treasurer
--------------------------------
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ACKNOWLEDGED AND AGREED
as of the date first written above
DAIMLERCHRYSLER SERVICES NORTH
AMERICA, LLC, as Agent
By: /s/ X. X. Xxxxxx
----------------------------------
Title: Vice President
-----------------------------
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