Exhibit 10.58
WAIVER AND SECOND AMENDMENT TO
REVOLVING CREDIT AGREEMENT
THIS WAIVER AND SECOND AMENDMENT TO REVOLVING CREDIT AGREEMENT dated
as of March 27, 1998 (this "AMENDMENT"), by and between Cross-Continent Auto
Retailers, Inc., a Delaware corporation (the "PARENT"), the other Borrowers
identified on the signature pages hereto (together with the Parent,
collectively, the "BORROWERS"), the financial institutions listed on the
signature pages hereto (the "BANKS"), and Chase Bank of Texas, National
Association, formerly known as Texas Commerce Bank National Association, a
national banking association, in its capacity as Agent (the "AGENT") and in its
individual capacity as a Bank hereunder ("CBT").
WHEREAS, the Borrowers, the Banks and the Agent have entered into that
certain Revolving Credit Agreement dated as of June 26, 1997, as amended by that
certain First Amendment to Revolving Credit Agreement dated July 1, 1997
(together with any and all amendments and modifications thereof, the
"CREDIT AGREEMENT"; capitalized terms used herein and not otherwise defined
herein shall have the meanings set forth in the Credit Agreement); and
WHEREAS, the Borrowers have requested that the Banks (i) waive the
Borrowers' compliance with Section 10.1(b) and Section 10.1(c) of the Credit
Agreement for the Borrowers' fiscal quarterly period ending December 31, 1997,
and (ii) amend the Credit Agreement in several respects as provided for herein;
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. WAIVER. The Banks hereby waive the Borrowers'
compliance with Section 10.1(b) of the Credit Agreement and Section 10.1(c) of
the Credit Agreement for the period ending December 31, 1997, and any rights and
remedies the Banks may have in respect of the provisions waived pursuant to this
Amendment.
SECTION 2. AMENDMENTS TO THE CREDIT AGREEMENT.
(a) "Exhibit A" to the Credit Agreement is hereby amended by
inserting the following definitions in their proper alphabetical order:
"ADJUSTED LEVERAGE RATIO" shall mean the ratio of (i) Adjusted
Indebtedness to (ii) the difference between (a) Pro Forma Consolidated
EBITDA (calculated quarterly on a rolling four-quarter basis) MINUS
(b) Pro Forma Floor Plan Interest Expense (calculated quarterly on a
rolling four-quarter basis). For purposes of calculating Adjusted
Leverage Ratio, an amount equal to the annualized rent payments
resulting from the Sale and Leaseback Transaction shall be deducted,
without duplication of other amounts included in the determination of Pro
Forma Consolidated EBITDA, from Pro Forma Consolidated EBITDA.
"FLOOR PLAN LENDERS" shall mean those manufacturer captive
finance companies, commercial banks, or other parties providing Floor
Plan Financings to the Borrowers.
"RESTRUCTURING CHARGE" shall mean the charge made by the
Borrowers in the first fiscal quarter of 1998 related to the
Borrowers' restructuring, in an amount not to exceed $2,500,000.00.
"SALE AND LEASEBACK TRANSACTION" shall mean that certain Real
Property Purchase Agreement, dated as of December 31, 1997, between
the Parent and Capital Automotive LP, a non-affiliated real estate
investment trust.
(b) The definition of "Consolidated Fixed Charges" is hereby amended
by inserting at the end thereof the following provision:
"; PROVIDED, HOWEVER, for the period ending March 31, 1998, the
calculation of Consolidated Fixed Charges shall exclude the scheduled
principal payments in respect of the Debt allowed under Section
10.3(ix) hereof."
(c) The definition of "Interest Expense" is hereby amended by
inserting after the phrase "Capital Leases," the phrase "net of all interest
income attributable to investments with Floor Plan Lenders,"
(d) The definition of "EBITDA" is hereby amended by inserting at the
end thereof the following provision:
"; PROVIDED, HOWEVER, the calculation of EBITDA shall exclude the
Restructuring Charge."
(e) The definition of "Interest Coverage Ratio" is hereby amended by
inserting at the end thereof the following provision:
"; PROVIDED, HOWEVER, for purposes of calculating Interest
Coverage Ratio for the period ending March 31, 1998, and all
subsequent applicable periods, an amount equal to the annualized rent
payments resulting from the Sale and Leaseback Transaction shall be
deducted, without duplication of other amounts included in the
determination of Consolidated EBITDA, from Consolidated EBITDA, and
for purposes of calculating Interest Coverage Ratio for the period
ending March 31, 1998, and all subsequent applicable periods, an
amount equal to the reduction in interest expense attributable to any
repayment of the Debt related to any real estate
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financings otherwise permitted by Section 10.3 hereof shall be deducted
from Interest Expense."
(f) Section 10.23 of the Credit Agreement is hereby amended in its
entirety to provide as follows:
ACQUISITIONS. The Parent will not, and will not permit any
Subsidiary to, acquire by purchase, merger or consolidation (a) the
power to direct or cause the direction of the management and policies
of any other Person (the "Acquisition Target"), directly or
indirectly, whether through the ownership of voting securities or by
contract or otherwise or (b) more than 20% of the Capital Stock or
other equity interest of any such other Person or all or substantially
all of the assets or Properties of any such other Person (the events
described in clauses (a) and (b) of this Section 10.23 herein referred
to as "Acquisitions").
However, the Parent or any Subsidiary may make such
Acquisitions if:
(i) prior to and immediately after making such Acquisition, no
Default or Event of Default has occurred and is continuing or would exist;
and
(ii) at least 30 days prior to the making of any such Acquisition
proposed by the Parent or any Subsidiary, Parent shall deliver to the Agent
written calculations demonstrating: (A) the Borrowers' compliance with all
financial covenants contained in Section 10.1 hereof, PROVIDED, HOWEVER,
that for the purposes of such calculations, an amount equal to the
annualized rent payments resulting from the Sale and Leaseback Transaction
shall be deducted, without duplication of other amounts included in the
determination of Consolidated EBITDA, from Consolidated EBITDA; and (B) the
Borrowers' projected compliance, subsequent to the completion of such
proposed Acquisition, with all financial covenants contained in Section
10.1 hereof, PROVIDED, HOWEVER, that for the purposes of such calculations,
an amount equal to the annualized rent payments resulting from the Sale and
Leaseback Transaction shall be deducted, without duplication of other
amounts included in the determination of Consolidated EBITDA, from
Consolidated EBITDA; and
(iii) the Adjusted Leverage Ratio shall not be less than (A)
2.75 to 1.00 for periods ending prior to or on December 31, 1998; and
(B) 2.50 to 1.00 thereafter; and
(iv) the Parent or any Subsidiary obtains the prior written consent of
the Majority Banks for any such proposed Acquisition;
PROVIDED, HOWEVER, that Sections 10.23(ii), 10.23(iii), and 10.23(iv)
shall apply only to Acquisitions to be completed or closed after March
27, 1998.
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SECTION 3. CONDITIONS TO EFFECTIVENESS. This Amendment shall
become effective as of March 27, 1998 upon the Agent's receipt of original
execution copies of this Amendment, executed and delivered by the parties
hereto.
SECTION 4. RATIFICATION OF LOAN DOCUMENTS. The Credit Agreement,
as amended hereby, and each other Loan Document is hereby ratified and confirmed
to be in full force and effect. Each reference in a Loan Document to the
"Credit Agreement" shall be deemed a reference to the Credit Agreement as
amended hereby.
SECTION 5. LIMITATIONS. The amendments set forth herein are
limited precisely as written and shall not be deemed to (a) be a consent to, or
waiver or modification of, any other term or condition of the Credit Agreement
or any of the Loan Documents, or (b) prejudice any right or rights which the
Agent and the Banks may now have or may have in the future under or in
connection with the Credit Agreement, the Loan Documents or any of the other
documents referred to therein. Except as expressly modified hereby, the terms
and provisions of the Credit Agreement, the Notes and any other Loan Documents
or any other documents or instruments executed in connection with any of the
foregoing are and shall remain in full force and effect. In the event of a
conflict between the Amendment and any of the foregoing documents, the terms of
this Amendment shall be controlling.
SECTION 6. REPRESENTATIONS AND WARRANTIES; NO DEFAULT. The
Borrowers hereby represent and warrant that on and as of the date hereof, and
after giving effect hereto: (i) the representations and warranties of the
Borrowers made in Section 7 of the Credit Agreement (other than those
representations and warranties limited by their terms to a specific date) shall
be true and correct; and (ii) no Default or Event of Default shall have occurred
and be continuing.
SECTION 7. PAYMENT OF EXPENSES. The Borrowers jointly and
severally agree, whether or not the transactions hereby contemplated shall be
consummated, to reimburse and save the Agent and the Banks harmless from and
against liability for the payment of all reasonable out-of-pocket costs and
expenses arising in connection with the preparation, execution, delivery, waiver
and enforcement of, or the preservation of any rights under this Amendment. The
provisions of this Section 8 shall survive the termination of the Credit
Agreement and the repayment of the Loans.
SECTION 8. CHOICE OF LAW. The Amendment and the rights and
obligations of the parties hereunder and under the Credit Agreement shall be
construed in accordance with and be governed by the laws of the State of Texas
and the United States of America. This Amendment is a Loan Document.
SECTION 9. DESCRIPTIVE HEADINGS. The descriptive headings of the
several Sections of this Amendment are inserted for convenience only and shall
not be deemed to affect the meaning or construction of any of the provisions
hereof.
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SECTION 10. ENTIRE AGREEMENT. The Amendment and the documents
referred to herein represent the entire understanding of the parties hereto
regarding the subject matter hereof and supersede all prior and contemporaneous
oral and written agreements of the parties hereto with respect to the subject
matter hereof.
SECTION 11. COUNTERPARTS. This Amendment may be executed in any
number of counterparts and by parties hereto on separate counterparts, each
counterpart, when so executed and delivered, constitute an original instrument,
and all such counterparts shall constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed and authorized by their respective officers as of March 27,
1998.
Borrowers: CROSS-CONTINENT AUTO
--------- RETAILERS, INC.
By:
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Name: Xxxx Xxxxxx
Title: Vice President - Finance and
Treasurer
QUALITY NISSAN, INC.
By:
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Name: Xxxx Xxxxxx
Title: Treasurer
MIDWAY CHEVROLET, INC.
By:
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Name: Xxxx Xxxxxx
Title: Treasurer
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PLAINS CHEVROLET, INC.
By:
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Name: Xxxx Xxxxxx
Title: Treasurer
WESTGATE CHEVROLET, INC.
By:
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Name: Xxxx Xxxxxx
Title: Treasurer
WORKING MAN'S CREDIT PLAN, INC.
By:
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Name: Xxxx Xxxxxx
Title: Treasurer
ALLIED 2000 COLLISION CENTER, INC.
By:
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Name: Xxxx Xxxxxx
Title: Treasurer
CROSS-COUNTRY DODGE, INC.
By:
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Name: Xxxx Xxxxxx
Title: Treasurer
C-CAR AUTO WHOLESALERS, INC.
By:
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Name: Xxxx Xxxxxx
Title: Treasurer
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XXXXXXX MOTORS, INC.
By:
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Name: Xxxx Xxxxxx
Title: Treasurer
T- WEST SALES & SERVICE, INC.
By:
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Name: Xxxx Xxxxxx
Title: Treasurer
SAHARA IMPORTS, INC.
By:
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Name: Xxxx Xxxxxx
Title: Treasurer
SAHARA NISSAN, INC.
By:
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Name: Xxxx Xxxxxx
Title: Treasurer
CHASE BANK OF TEXAS,
NATIONAL ASSOCIATION, as a
Bank and as Agent
By:
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Name:
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Title:
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AMARILLO NATIONAL BANK
By:
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Name:
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Title:
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THE BANK OF TOKYO-MITSUBISHI, LTD.,
HOUSTON AGENCY
By:
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Name:
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Title:
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U.S. BANK
By:
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Name:
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Title:
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