EXHIBIT 4.4
SECOND AMENDMENT
THIS SECOND AMENDMENT dated as of May 9, 2006 (this "Amendment") is to the
Second Amended and Restated Credit Agreement (the "Credit Agreement") dated as
of September 8, 2004 among UNITED AUTO GROUP, INC. (the "Company"), various
financial institutions (the "Lenders") and DAIMLERCHRYSLER FINANCIAL SERVICES
AMERICAS LLC (formerly DaimlerChrysler Services North America LLC), as agent for
the Lenders (the "Agent"), as previously amended. 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;
WHERAS, the parties hereto agree that the terms of this Amendment shall be
effective as of March 31, 2006;
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 AMENDMENT. Effective as of March 31, 2006, the definition of
"Suretyship Liabilities" in Section 1.1 of the Credit Agreement shall be amended
to read in its entirety as follows:
Suretyship Liability means any agreement, undertaking or arrangement
by which any Person guarantees, endorses or otherwise becomes or is
contingently liable upon (by direct or indirect agreement, contingent or
otherwise, to provide funds for payment, to supply funds to or\ otherwise
to invest in a debtor, or otherwise to assure a creditor against loss) any
indebtedness, obligation or other liability of any other Person (other than
by endorsements of instruments in the course of collection), or guarantees
the payment of dividends or other distributions upon the shares of any
other Person. The amount of any Person's obligation in respect of any
Suretyship Liability shall (subject to any limitation set forth therein) be
deemed to be the principal amount of the debt, obligation or other
liability supported thereby and shall in all cases exclude any guarantees
by the Company or any Subsidiary of an operating lease of the Company or
any Subsidiary.
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 date hereof with the same effect as if made on and as of the date
hereof (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 amendment set forth in Section 1 above shall
become effective as of the date hereof 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. Any previously existing breach
of the Amended Credit Agreement due to existing or previously existing operating
leases guaranteed by the Company or any Subsidiary shall be hereby waived.
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. 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
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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 FINANCIAL SERVICES
AMERICAS LLC, as Agent, as Issuing
Lender and as a Lender
By: /s/ Xxxxxxx Xxxxx
------------------------------------
Title: Credit Director of National
Accounts
TOYOTA MOTOR CREDIT CORPORATION,
as a Lender
By: /s/ Xxxxxxx Xxxxx
------------------------------------
Title: National Dealer Credit Manager
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EXHIBIT A
FORM OF REAFFIRMATION
as of May __, 2006
DaimlerChrysler Financial Services
Americas LLC, as Agent
and the Lenders party
to the Second Amended and Restated Credit Agreement
referred to below
00000 Xxxxxxx Xxxx
Xxxxxxxxxx Xxxxx, Xxxxxxxx 00000
Attn: Xxxxxxx Xxxxx
RE: REAFFIRMATION OF LOAN DOCUMENTS
Ladies and Gentlemen:
Please refer to:
(a) The Second Amended and Restated Security Agreement dated as of
September 8, 2004 (the "Security Agreement") among United Auto Group, Inc. (the
"Company"), its subsidiaries and DaimlerChrysler Financial Services Americas LLC
(formerly DaimlerChrysler Services North America LLC) in its capacity as Agent
(in such capacity, the "Agent"), as previously amended;
(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 First Amendment (the "Amendment") to the Second Amended
and Restated Credit Agreement dated as of September 8, 2004 (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.
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 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 Amendment.
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DaimlerChrysler Financial Services
Americas LLC, as Agent
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.
ATLANTIC AUTO FUNDING CORPORATION
ATLANTIC AUTO SECOND FUNDING CORPORATION
ATLANTIC AUTO THIRD FUNDING CORPORATION
AUTO MALL PAYROLL SERVICES, INC.
XXXXX XXXXXX CHEVROLET-GEO, INC.
CJNS, LLC
CLASSIC AUTO GROUP, INC.
CLASSIC IMPORTS, INC.
CLASSIC MANAGEMENT COMPANY, INC.
CLASSIC TURNERSVILLE, INC.
XXXXXXXXX XXXX DODGE, INC.
XXX XXXXX CHEVROLET, INC.
DIFEO PARTNERSHIP, LLC
EUROPA AUTO IMPORTS, INC.
FLORIDA CHRYSLER-PLYMOUTH, INC.
FRN OF TULSA, LLC
XXXX XXXX CHEVROLET, INC.
GMG MOTORS, INC.
XXXXXXX NORTH, LLC
XXXXXXX PONTIAC GMC, LLC
XXXXXXX SPRING BRANCH, LLC
HBL, LLC
HT AUTOMOTIVE, LTD.
JS IMPORTS, LLC
KMPB, LLC
KMT/UAG, INC.
XXXXXXX AUTO SALES, LLC
XXXXXXX BUICK-PONTIAC, INC.
XXXXXXX FORD NORTH, INC.
XXXXXXX NISSAN, LLC
XXXXXXX UNITED AUTO GROUP NO. 2, INC.
LATE ACQUISITION I, LLC
LATE ACQUISITION II, LLC
LMNS, LLC
LRP, LTD.
XXXXXXX CHEVROLET-OLDSMOBILE, INC.
MOTORCARS ACQUISITION II, LLC
MOTORCARS ACQUISITION III, LLC
MOTORCARS ACQUISITION IV, LLC
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DaimlerChrysler Financial Services
Americas LLC, as Agent
MOTORCARS ACQUISITION V, LLC
MOTORCARS ACQUISITION VI, LLC
MOTORCARS ACQUISITION, LLC
NISSAN OF NORTH OLMSTED, LLC
PALM AUTO PLAZA, LLC
PEACHTREE NISSAN, INC.
PMRC, LLC
XXXX-XXXXXXX CHEVROLET, INC.
RELENTLESS PURSUIT ENTERPRISES, INC.
SA AUTOMOTIVE, LTD.
SAU AUTOMOTIVE, LTD.
SCOTTSDALE FERRARI, LLC
SCOTTSDALE JAGUAR, LTD.
SCOTTSDALE MANAGEMENT GROUP, LTD.
SIGMA MOTORS INC.
SK MOTORS, LTD.
SL AUTOMOTIVE, LTD.
SOMERSET MOTORS, INC.
SUN MOTORS, LTD.
THE NEW GRACELAND DODGE, INC.
TRI-CITY LEASING, INC.
UAG ATLANTA IV MOTORS, INC.
UAG BOSTON BENTLEY, LLC
UAG BOSTON FMB, LLC
UAG BOSTON FML, LLC
UAG BOSTON FMM, LLC
UAG BOSTON FMR, LLC
UAG CAPITOL, INC.
UAG CAROLINA, INC.
UAG CENTRAL FLORIDA MOTORS, LLC
UAG CENTRAL NJ, LLC
UAG CENTRAL REGION MANAGEMENT, LLC
UAG CERRITOS, LLC
UAG CHCC, INC.
UAG CHEVROLET, INC.
UAG CLASSIC, INC.
UAG CLOVIS, INC.
UAG CONNECTICUT I, LLC
UAG CONNECTICUT, LLC
UAG DULUTH, INC.
UAG EAST, LLC
UAG ESCONDIDO A1, INC.
UAG ESCONDIDO H1, INC.
UAG ESCONDIDO M1, INC.
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DaimlerChrysler Financial Services
Americas LLC, as Agent
UAG FAIRFIELD CA, LLC
UAG FAIRFIELD CM, LLC
UAG FAIRFIELD CP, LLC
UAG FAYETTEVILLE I, LLC
UAG FAYETTEVILLE II, LLC
UAG FAYETTEVILLE III, LLC
UAG FINANCE COMPANY, INC.
UAG GD, LTD.
UAG GN, LTD.
UAG GP, LTD
UAG GRACELAND II, INC.
UAG GW, LTD.
UAG HOUSTON ACQUISITION, LTD.
UAG XXXXXX, INC.
UAG INTERNATIONAL HOLDINGS, INC.
UAG KISSIMMEE MOTORS, INC.
UAG XXXXXXX SPRINGDALE, LLC
UAG LOS GATOS, INC.
UAG MARIN, INC.
UAG MEMPHIS II, INC.
UAG MEMPHIS MANAGEMENT, INC.
UAG MEMPHIS IV, INC.
UAG MENTOR ACQUISITION, LLC
UAG MICHIGAN CADILLAC, LLC
UAG MICHIGAN H1, LLC
UAG MICHIGAN H2, LLC
UAG MICHIGAN HOLDINGS, INC.
UAG MICHIGAN PONTIAC-GMC, LLC
UAG MICHIGAN T1, LLC
UAG MICHIGAN TMV, LLC
UAG MINNEAPOLIS B1, LLC
UAG NANUET I, LLC
UAG NANUET II, LLC
UAG NEVADA LAND, LLC
UAG NORTHEAST BODY SHOP, INC.
UAG NORTHEAST, LLC
UAG OLDSMOBILE OF INDIANA, LLC
UAG PHOENIX VC, LLC
UAG REALTY, LLC
UAG ROYAL PALM, LLC
UAG SAN DIEGO A1, INC.
UAG SAN DIEGO H1, INC.
UAG SAN DIEGO JA, INC.
UAG SOUTHEAST, INC.
UAG SPRING, LLC
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DaimlerChrysler Financial Services
Americas LLC, as Agent
UAG STEVENS CREEK II, INC.
UAG SUNNYVALE, INC.
UAG TEXAS II, INC.
UAG TEXAS, LLC
UAG TORRANCE, INC.
UAG TULSA HOLDINGS, LLC
UAG TULSA VC, LLC
UAG TURNERSVILLE MOTORS, LLC
UAG TURNERSVILLE REALTY, LLC
UAG XX XX, LLC
UAG VK, LLC
UAG WEST BAY AM, LLC
UAG XXXX XXX XX, XXX
XXX XXXX XXX XX, LLC
UAG WEST BAY IAU, LLC
UAG WEST BAY IB, LLC
UAG XXXX XXX XX, XXX
XXX XXXX XXX XX, LLC
UAG WEST BAY IM, LLC
UAG WEST BAY IP, LLC
UAG WEST BAY IV, LLC
UAG WEST BAY IW, LLC
UAG WEST, LLC
UAG YOUNG II, INC.
UAG-CARIBBEAN, INC.
UNITED AUTO GROUP, INC.
UNITED AUTO LICENSING, LLC
UNITED AUTOCARE PRODUCTS, LLC
UNITED AUTO SCOTTSDALE PROPERTY
HOLDINGS, LLC
UNITED NISSAN, INC., A GEORGIA
CORPORATION
UNITED NISSAN, INC., A TENNESSEE
CORPORATION
UNITED RANCH AUTOMOTIVE, LLC
UNITEDAUTO DODGE OF SHREVEPORT, INC.
UNITEDAUTO FIFTH FUNDING INC.
UNITEDAUTO FINANCE INC.
UNITEDAUTO FOURTH FUNDING INC.
WEST PALM AUTO MALL, INC.
WEST PALM NISSAN, LLC
WESTBURY SUPERSTORE, LTD.
WTA MOTORS, LTD.
YOUNG MANAGEMENT GROUP, INC.
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DaimlerChrysler Financial Services
Americas LLC, as Agent
UAG TULSA JLM, LLC
UNITED FORD SOUTH, LLC
UNITED FORD NORTH, LLC
UNITED FORD BROKEN ARROW, LLC
DEALER ACCESSORIES, LLC
UAG WEST BAY IN, LLC
UAG SAN DIEGO AU, INC.
UAG SAN DIEGO MANAGEMENT, INC.
By:
------------------------------------
Title:
---------------------------------
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DaimlerChrysler Financial Services
Americas LLC, as Agent
CLASSIC MOTOR SALES, LLC
CLASSIC ENTERPRISES, LLC
By: United Auto Group, Inc.
Member
By:
------------------------------------
Title: Executive Vice President -
Finance
CLASSIC NISSAN OF TURNERSVILLE, LLC
By: Classic Management Company, Inc.
Member
By:
------------------------------------
Title: Assistant Treasurer
XXX XXXXX MOTORS, LLC
By: XXX XXXXX CHEVROLET, INC.
Member
By:
------------------------------------
Title: Assistant Treasurer
XXXXXXX AUTOMOTIVE, LTD.
By: UAG TEXAS, LLC
a general partner
By:
------------------------------------
Title: Treasurer
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DaimlerChrysler Financial Services
Americas LLC, as Agent
UAG CITRUS MOTORS, LLC
By: United Auto Group, Inc.
Member
By:
------------------------------------
Title: Executive Vice President -
Finance
YOUNG AUTOMOTIVE HOLDINGS, LLC
UAG YOUNG AUTOMOTIVE GROUP, LLC
X. XXXXX CHEVROLET, LLC
By: United Auto Group, Inc., Member
By:
------------------------------------
Title: Executive Vice President -
Finance
XXXXXXX FORD, INC
NATIONAL CITY FORD, INC.
CENTRAL FORD CENTER, INC.
UAG/PFS, INC.
By:
------------------------------------
Title: Assistant Treasurer
COUNTY AUTO GROUP PARTNERSHIP
DANBURY AUTO PARTNERSHIP
DIFEO CHRYSLER PLYMOUTH JEEP
EAGLE PARTNERSHIP
DIFEO HYUNDAI PARTNERSHIP
DIFEO LEASING PARTNERSHIP
DIFEO NISSAN PARTNERSHIP
DIFEO TENAFLY PARTNERSHIP
XXXXXX MOTOR PARTNERSHIP
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DaimlerChrysler Financial Services
Americas LLC, as Agent
OCT PARTNERSHIP
SOMERSET MOTORS PARTNERSHIP
By: DIFEO PARTNERSHIP, INC.
a general partner
By:
------------------------------------
Title: Assistant Treasurer
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DaimlerChrysler Financial Services
Americas LLC, as Agent
ACKNOWLEDGED AND AGREED
as of the date first written above
DAIMLERCHRYSLER FINANCIAL SERVICES
AMERICAS, LLC, as Agent
By:
---------------------------------
Title:
------------------------------
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