Exhibit 10.31.1
AMENDMENT TO CREDIT AGREEMENT
(Acquisition Revolving Line of Credit)
THIS AMENDMENT TO CREDIT AGREEMENT (this "Amendment"), dated December 1,
1999, is by and between LITHIA MOTORS, INC., an Oregon corporation ("Borrower"),
whose address is 000 Xxxx Xxxxxxx Xxxxxx, Xxxxxxx, Xxxxxx 00000, and FORD MOTOR
CREDIT COMPANY, a Delaware corporation ("Lender"), whose address is 00000 X.X.
00xx Xxxxxx, Xxxxx 000, Xxxxxxxx, Xxxxxxxxxx 00000 ("Lender's Address").
WHEREAS, pursuant to the terms of a certain Credit Agreement (the
"Agreement") dated November 23, 1998, Lender made a loan to Borrower in the
original principal amount of $75,000,000.00 (the "Original Loan"); and
WHEREAS, the Original Loan is evidenced by a certain Promissory Note dated
November 23, 1998, made by Borrower to the order of Lender in the original
principal amount of $75,000,000.00 (the "Original Note"); and
WHEREAS, Borrower has requested an increase in the principal balance of
the Original Loan to $115,000,000.00 to provide financing for Borrower's
Permitted Acquisition of Dealership Guarantors (as defined herein) and a renewal
of the Original Loan, pursuant to the terms of a certain Amended & Restated
Promissory Note in the principal amount of $115,000,000.00 dated as of even date
herewith and made by Borrower to the order of Lender (the "Amended Note" and
with the Original Note collectively referred to as the "Note"); and
WHEREAS, Lender is willing to increase the Original Loan if and only if
(i) Borrower executes this Amendment and the Amended Note, (ii) each Dealership
Guarantor reaffirms its obligations under its Dealership Guaranty and Dealership
Security Agreement and under the Contribution Agreement (each as defined in the
Agreement), and (iii) the Loan continues to be cross-collateralized and
cross-defaulted with other Indebtedness of Borrower and Dealership Guarantors.
NOW THEREFORE, in consideration of the premises and for other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the Agreement is hereby amended as follows:
1. Except as modified herein, all capitalized terms used herein and in the
foregoing recitals have the meanings set forth in the Agreement and the Note.
The following amendments are effective as of December 1, 1999.
2. The term "Loan" shall mean the Original Loan as amended by this
Amendment.
3. Section 1.1(z) of the Agreement, entitled "Commitment" is hereby
deleted in its entirety and the following is substituted therefor:
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"(z) "Commitment" means the lessor of (i) $115,000,000.00 minus the
amount of any Decision Reserve in effect from time to time or (ii) any lower
amount Borrower may have elected pursuant to Section 2.3 hereof."
4. Section 1.1(ff) of the Agreement, entitled "Contribution Agreement" is
hereby deleted in its entirety and the following is substituted therefor:
"(ff) "Contribution Agreement" means collectively, that certain
Contribution Agreement dated November 23, 1998, as amended by the Amended &
Restated Contribution Agreement dated _________________, 2000, as it may be
amended, restated or otherwise modified and in effect from time to time, and
each of those certain Binding Acknowledgments dated as of various dates and
executed by Dealership Guarantors acquired pursuant to Permitted Acquisitions,
and any future Binding Acknowledgments executed by Dealership Guarantors
acquired pursuant to any future Permitted Acquisitions."
5. Section 1.1(rrr) of the Agreement, entitled "Note" is hereby deleted in
its entirety and the following is substituted therefor:
"(rrr) "Note" means collectively, that certain Promissory Note dated
November 23, 1998, from Borrower to the order of Lender in the principal amount
of $75,000,000.00, as amended by the Amended & Restated Promissory Note dated
_______________, 2000 in the principal amount of $115,000,000.00, as it may be
amended, restated or otherwise modified and in effect from time to time."
6. Section 1.1(vvvv) of the Agreement, entitled "Termination Date" is
hereby deleted in its entirety and the following is substituted therefor:
"(vvvv) "Termination Date" means the earlier of (a) December 1, 2002
or (b) the date of termination of the Commitment pursuant to either of Section
2.3 or Section 7.1 hereof."
7. Section 3.3 of the Agreement, entitled "Condition Precedent to
Additional Advance" is hereby deleted in its entirety and the following is
substituted therefor:
"3.3 Condition Precedent to Additional Advance. Notwithstanding anything
to the contrary in this Agreement, the Lender shall be under no obligation to
make an Advance to the Borrower hereunder until and unless the following
requirements shall have been satisfied:
(i) There shall exist no liens on the Collateral other than Permitted
Existing Liens, liens permitted under Section 5.3 (c) hereof, and those
Permitted Existing Liens appearing on Schedule 1.1.3 marked with an
asterisk shall have been released and or terminated, and the Borrower
shall have confirmed delivery of such releases, UCC-3 termination
statements or other documentation reasonably requested by the Lender
evidencing such release or termination;
(ii) The loss payable endorsements referenced in Section 5.2(g) shall have
been delivered to the Lender."
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8. Section 4.2 of the Agreement is hereby deleted in its entirety and the
following is substituted therefor:
"(b) Each of the Transaction Documents to which the Borrower or any of its
Subsidiaries is a party has been duly executed, delivered or filed, as the case
may be, by it and constitutes its legal, valid and binding obligation,
enforceable against it in accordance with its terms, is in full force and effect
and no material term or condition thereof has been amended, modified or waived
without the prior written consent of the Lender (notwithstanding the foregoing,
Transaction Documents that are not Loan Documents may be amended or modified
without Lender's prior written consent provided that Borrower provides Lender
with copies of any such amendment or modification in a timely manner after the
making of any such amendment or modification), and the Borrower and its
Subsidiaries have, and, to the best of the Borrower's and its Subsidiaries'
knowledge, all other parties thereto have, performed and complied with all the
material terms, provisions, agreements and conditions set forth therein and
required to be performed or complied with by such parties on or before the date
hereof, and no unmatured default, default or breach of any material covenant by
any such party exists thereunder."
9. Section 5.3 (a) (xv) of the Agreement is hereby deleted in its entirety
and the following is substituted therefor in order to correct a typographical
error:
"(xv) Indebtedness not in excess of $250,000 in connection with the liens
set forth in Section 5.3(c)(ix)."
10. Section 5.3 (b) (vi) is hereby added to the Agreement to read in its
entirety as follows:
"(vi) transfers from one Dealership Guarantor to another Dealership
Guarantor or to Borrower."
11. Section 5.3 (l) of the Agreement is hereby amended and restated in its
entirety to read as follows:
"(l) Issuance of Equity Interests. The Borrower shall not issue any Equity
Interests if as a result of such issuance a Change of Control shall occur.
Except as permitted in connection with a Majority Acquisition or as required to
comply with the terms of the relevant franchise agreement with a particular
automotive manufacturer, none of the Borrower's Subsidiaries shall issue any
Equity Interests other than to the Borrower or to a wholly owned Subsidiary of
Borrower."
12. Section 5.3 (c) (x) is hereby added to the Agreement to read in its
entirety as follows:
"(x) previously existing Liens which encumber Equipment acquired in
connection with a Permitted Acquisition."
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13. Section 5.3 (h) of the Agreement is hereby deleted in its entirety and
the following is substituted therefor in order to correct a typographical error:
"(h) Restriction on Fundamental Change. Neither the Borrower nor any of
its Subsidiaries shall enter into any merger or consolidation, or liquidate,
wind-up or dissolve (or suffer any liquidation or dissolution), or convey,
lease, sell, transfer or otherwise dispose of, in one transaction or series of
transactions, all or substantially all of the Borrower's or any such
Subsidiary's business or property, whether now or hereafter acquired, except (i)
transactions permitted under Sections 5.3(b) or 5.3(g) (ii) the merger of a
Subsidiary of the Borrower into or with a Person acquired or being acquired in
connection with a Permitted Acquisition; (iii) the merger of a wholly-owned
Subsidiary of the Borrower with and into the Borrower; and (iv) the merger of a
Subsidiary of the Borrower with another Subsidiary of the Borrower; provided,
however, (i) with respect to any such permitted mergers involving any Dealership
Guarantor, the surviving corporation in the merger shall also be or become a
Dealership Guarantor; and (ii) after the consummation of any such transaction,
the Borrower shall be in compliance with the provisions of Sections 5.2(l) and
5.3(f)."
14. Schedule 4.8 attached hereto (i) contains a description as of the date
of this Amendment of the corporate structure of the Borrower and its
Subsidiaries and any other Person in which the Borrower or any of its
Subsidiaries holds an Equity Interest; and (ii) accurately sets forth as of the
date of this Amendment (A) the correct legal name, the jurisdiction of
incorporation or formation and the jurisdictions in which each of the Borrower
and the Subsidiaries of the Borrower is qualified to transact business as a
foreign corporation or other foreign entity and (B) a summary of the direct and
indirect partnership, joint venture, or other Equity Interests, if any, of the
Borrower and each Subsidiary of the Borrower in any Person that is not a
corporation.
15. Borrower hereby reaffirms each representation and warranty made in the
Agreement and represents that no Event of Default or Unmatured Default exists.
16. The security interest granted by Borrower to Lender under the Borrower
Security Agreement and the terms and conditions of the Borrower Security
Agreement shall apply equally to the indebtedness evidenced by the Note, and the
covenants of the Borrower Security Agreement and the Agreement, as amended by
this Amendment shall remain in full force and effect until the Principal Balance
of the Note and interest thereon is paid in full and all of the obligations of
Borrower to Lender under the Agreement, as amended, and the Note are fully
performed and observed. Except as otherwise amended in this Amendment, the terms
and conditions of the Agreement shall remain in full force and effect in
accordance with the provisions thereof. The Loan may be further renewed or
extended only upon such terms and conditions and at such rate of interest as the
parties hereby may agree upon in writing. Furthermore, Borrower hereby reaffirms
its obligations under the Borrower Guaranty.
NOTICE: UNDER OREGON LAW, MOST AGREEMENTS, PROMISES AND COMMITMENTS MADE
BY US AFTER OCTOBER 3, 1989, CONCERNING LOANS AND OTHER CREDIT EXTENSIONS WHICH
ARE NOT FOR PERSONAL, FAMILY OR HOUSEHOLD PURPOSES OR SECURED SOLELY BY THE
BORROWER'S RESIDENCE MUST BE IN WRITING, EXPRESS CONSIDERATION AND BE SIGNED BY
US TO BE ENFORCEABLE.
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IN WITNESS WHEREOF, Borrower and Lender have executed this Amendment as of
the date set forth above intending to be legally bound hereby.
FORD MOTOR CREDIT COMPANY, a
Delaware corporation
By _________________________________________
X. X. Xxxxx, National Account Manager
LITHIA MOTORS, INC.,
an Oregon corporation
By _________________________________________
M. L. Xxxx Xxxxxxx, President
Attest: _____________________________________
Xxxxxx X. XxXxxx, Secretary
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