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EXHIBIT 10.1.19.3
SECOND AMENDMENT
THIS SECOND AMENDMENT dated as of December 23, 1999 (this "Amendment")
is to the Credit Agreement (as heretofore amended, the "Credit Agreement") dated
as of August 3, 1999 among UNITED AUTO GROUP, INC., a Delaware corporation (the
"Company"), various financial institutions (the "Lenders") and 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 (a) The following definitions in Section 1.1 of the Credit
Agreement shall be amended and restated in their entireties to read as follows:
Commitment means, as to any Lender, such Lender's commitment
to make Loans, and to issue or participate in Letters of Credit, under
this Agreement. The initial amount of each Lender's Pro Rata Share of
the Revolving Commitment Amount, the Acquisition Commitment Amount and
the Term Commitment Amount is set forth on Schedule 2.1.
Funded Debt means all Debt of the Company and its
Subsidiaries, determined on a consolidated basis, excluding (i)
contingent obligations in respect of Suretyship Liabilities (except to
the extent constituting Suretyship Liabilities in respect of Debt of a
Person other than the Company or any Subsidiary), (ii) Hedging
Obligations, (iii) Debt of the Company to Subsidiaries and Debt of
Subsidiaries to the Company or to other Subsidiaries and (iv) an amount
equal to 25% of the Loans outstanding at the time of calculation the
proceeds of which were used to repurchase, redeem, repay or defease the
Subordinated Notes.
Issuing Lender means CFC in its capacity as the issuer of
Letters of Credit hereunder and its successors and assigns in such
capacity.
L/C Application means, with respect to any request for the
issuance of a Letter of Credit, a letter of credit application in the
form being used by the Issuing Lender at the time of such request for
the type of letter of credit requested.
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Lender - see the Preamble. References to the "Lenders" shall
include the Issuing Lender; for purposes of clarification only, to the
extent that CFC (or any successor Issuing Lender) may have any rights
or obligations in addition to those of the other Lenders due to its
status as Issuing Lender, its status as such will be specifically
referenced.
Letter of Credit - see Section 2.1.3.
Loans means Acquisition Loans, Revolving Loans and Term Loans.
Loan Documents means this Agreement, the Notes, the Guaranty,
the Letters of Credit and the Collateral Documents.
Revolving Commitment Amount means $125,000,000, as reduced
from time to time pursuant to Section 6.1; provided that if the Company
elects pursuant to Section 2.1.4 to convert Revolving Loans to Term
Loans, the Revolving Commitment Amount shall automatically be reduced
by the principal amount of the Revolving Loans so converted; provided,
further, however, that if, following repayment in full of $110,000,000
of Term Loans and reduction of the Term Commitment Amount to zero and
prior to the Revolving Termination Date, the Company shall pay any Term
Loan, the Revolving Loan Commitment shall be increased by the amount of
such payment.
(b) The following definitions shall be added to Section 1.1 of the
Credit Agreement, each in its appropriate alphabetical position:
Net Cash Proceeds means, with respect to any issuance of Debt,
the aggregate cash proceeds received by the Company or any Subsidiary
pursuant to such issuance, net of the direct costs of such issuance.
Revolving Termination Date means the earlier to occur of (a)
August 3, 2005 or (b) such other date on which the Commitments
terminate pursuant to Section 6 or 11.
Term Commitment Amount means $110,000,000, as reduced from
time to time pursuant to Section 6.1 or 6.3; provided that the Term
Commitment Amount shall be automatically and permanently reduced by the
amount of any Term Loan made hereunder (other than Term Loans arising
out of the conversion of Revolving Loans pursuant to the proviso to the
definition of "Revolving Commitment Amount").
Term Commitment Termination Date means the earlier to occur of
(a) December 23, 2007 and (b) such other date on which the Commitments
terminate pursuant to Section 6 or 11.
Term Loan Termination Date means December 23, 2007.
Term Loans - see Section 2.1.4
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(c) The following definitions shall be deleted from Section 1.1 of the
Credit Agreement: Excluded Property, Issuer, LC Guaranty, LC Reimbursement
Agreement, Reimbursement Obligation and Termination Date.
(d) The definition of "Interest Rate" in Section 1.1 of the Credit
Agreement shall be amended by deleting clause (b)(x) of the first sentence of
such definition and inserting the following in lieu thereof: "(b)(x) three
percent (3.00%) per annum on all Term Loans and, if the Company uses the
proceeds of any Revolving Loans to repurchase, redeem, repay or defease the
Subordinated Notes but has not converted such Revolving Loans to Term Loans
pursuant to Section 2.1.4, then, with respect to such Revolving Loans, three
percent (3.00%) per annum".
1.2 The lead in paragraph to Section 2.1 of the Credit Agreement shall
be amended and restated to read in its entirety as follows:
2.1 Commitments. On and subject to the terms and conditions of
this Agreement, each of the Lenders, severally and for itself alone,
agrees to make Loans to, and to issue or participate in Letters of
Credit for the account of, the Company as follows:
1.3 Sections 2.1.1, 2.1.2, 3.1 and 5.1 shall be amended by inserting
the word "Revolving" in front of the words "Termination Date" each place where
such words appear in such Sections.
1.4 Section 2.1.3 of the Credit Agreement shall be amended and restated
to read in its entirety as follows:
2.1.3 L/C Commitment. (a) The Issuing Lender will issue
letters of credit, in each case containing such terms and conditions as
are permitted by this Agreement and are reasonably satisfactory to the
Issuing Lender (each a "Letter of Credit"), at the request of and for
the account of the Company from time to time before the date which is
30 days prior to the Revolving Termination Date and (b) as more fully
set forth in Section 2.3.2, each Lender agrees to purchase a
participation in each such Letter of Credit; provided that (i) the
aggregate Stated Amount of all Letters of Credit shall not at any time
exceed $10,000,000 and (ii) the Revolving Outstandings will not at any
time exceed the Revolving Commitment Amount.
1.5 The following Section 2.1.4 shall be added to the Credit Agreement:
2.1.4 Term Loan Commitment. Each Lender agrees to make loans
to the Company (each such loan, a "Term Loan") on a Business Day before
the Term Commitment Termination Date in such Lender's Pro Rata Share of
such amount as the Company shall request from all Lenders; provided
that the aggregate amount of Term Loans requested by the Company
pursuant to this sentence shall not exceed the Term Commitment Amount.
In addition, at any time when the Term Commitment Amount is zero, if
the Company elects by delivering written notice of such election to the
Agent, it
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may convert up to $78,000,000 of Revolving Loans to Term Loans
notwithstanding that such election may cause the aggregate amount of
Term Loans to exceed the Term Commitment Amount; provided that the
aggregate amount of Revolving Loans converted into Term Loans shall not
exceed the aggregate amount of Revolving Loans borrowed at any time the
proceeds of which were used to repurchase, redeem, repay or defease the
Subordinated Notes. No amount paid or prepaid with respect to any Term
Loan may be reborrowed.
1.6 Section 2.3 of the Credit Agreement shall be amended and restated
to read in its entirety as follows:
2.3 Letter of Credit Procedures.
2.3.1 L/C Applications. The Company shall give notice to the
Agent and the Issuing Lender of the proposed issuance of each Letter of
Credit on a Business Day which is at least three Business Days (or such
lesser number of days as the Agent and the Issuing Lender shall agree
in any particular instance in their sole discretion) prior to the
proposed date of issuance of such Letter of Credit. Each such notice
shall be accompanied by an L/C Application, duly executed by the
Company and in all respects reasonably satisfactory to the Agent and
the Issuing Lender, together with such other documentation as the Agent
or the Issuing Lender may reasonably request in support thereof, it
being understood that each L/C Application shall specify, among other
things, the date on which the proposed Letter of Credit is to be
issued, the expiration date of such Letter of Credit (which shall not
be later than the earlier to occur of (x) one year after the date of
issuance thereof and (y) thirty days prior to the scheduled Revolving
Termination Date) and whether such Letter of Credit is to be
transferable in whole or in part. So long as the Issuing Lender has not
received written notice that the conditions precedent set forth in
Section 10 with respect to the issuance of such Letter of Credit have
not been satisfied, the Issuing Lender shall issue such Letter of
Credit on the requested issuance date. The Issuing Lender shall
promptly advise the Agent of the issuance of each Letter of Credit and
of any amendment thereto, extension thereof or event or circumstance
changing the amount available for drawing thereunder. In the event of
any inconsistency between the terms of any L/C Application and the
terms of this Agreement, the terms of this Agreement shall control.
2.3.2 Participations in Letters of Credit. Concurrently with
the issuance of each Letter of Credit, the Issuing Lender shall be
deemed to have sold and transferred to each other Lender, and each
other Lender shall be deemed irrevocably and unconditionally to have
purchased and received from the Issuing Lender, without recourse or
warranty, an undivided interest and participation, to the extent of
such other Lender's Pro Rata Share, in such Letter of Credit and the
Company's reimbursement obligations with respect thereto. For the
purposes of this Agreement, the unparticipated portion of each Letter
of Credit shall be deemed to be the Issuing Lender's "participation"
therein. The Issuing Lender hereby agrees, upon request of the Agent or
any Lender, to deliver to the Agent or such Lender a list of all
outstanding Letters of Credit issued by the Issuing
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Lender, together with such information related thereto as the Agent or
such Lender may reasonably request.
2.3.3 Reimbursement Obligations. The Company hereby
unconditionally and irrevocably agrees to reimburse the Issuing Lender
for each payment or disbursement made by the Issuing Lender under any
Letter of Credit honoring any demand for payment made by the
beneficiary thereunder, in each case on the date that such payment or
disbursement is made. Any amount not reimbursed on the date of such
payment or disbursement shall bear interest from the date of such
payment or disbursement to the date that the Issuing Lender is
reimbursed by the Company therefor, payable on demand, at a rate per
annum equal to the Interest Rate from time to time in effect plus,
beginning on the third Business Day after receipt of notice from the
Issuing Lender of such payment or disbursement, 2%. The Issuing Lender
shall notify the Company and the Agent whenever any demand for payment
is made under any Letter of Credit by the beneficiary thereunder;
provided that the failure of the Issuing Lender to so notify the
Company shall not affect the rights of the Issuing Lender or the
Lenders in any manner whatsoever.
2.3.4 Limitation on Obligations of Issuing Lender. In
determining whether to pay under any Letter of Credit, the Issuing
Lender shall not have any obligation to the Company or any Lender other
than to confirm that any documents required to be delivered under such
Letter of Credit appear to have been delivered and appear to comply on
their face with the requirements of such Letter of Credit. Any action
taken or omitted to be taken by the Issuing Lender under or in
connection with any Letter of Credit, if taken or omitted in the
absence of gross negligence and willful misconduct, shall not impose
upon the Issuing Lender any liability to the Company or any Lender and
shall not reduce or impair the Company's reimbursement obligations set
forth in Section 2.3.3 or the obligations of the Lenders pursuant to
Section 2.3.5.
2.3.5 Funding by Lenders to Issuing Lender. If the Issuing
Lender makes any payment or disbursement under any Letter of Credit and
the Company has not reimbursed the Issuing Lender in full for such
payment or disbursement by 10:00 A.M., Detroit time, on the date of
such payment or disbursement, or if any reimbursement received by the
Issuing Lender from the Company is or must be returned or rescinded
upon or during any bankruptcy or reorganization of the Company or
otherwise, each other Lender shall be obligated to pay to the Agent for
the account of the Issuing Lender, in full or partial payment of the
purchase price of its participation in such Letter of Credit, its Pro
Rata Share of such payment or disbursement (but no such payment shall
diminish the obligations of the Company under Section 2.3.3), and, upon
notice from the Issuing Lender, the Agent shall promptly notify each
other Lender thereof. Each other Lender irrevocably and unconditionally
agrees to so pay to the Agent in immediately available funds for the
Issuing Lender's account the amount of such other Lender's Pro Rata
Share of such payment or disbursement. If and to the extent any Lender
shall not have made such amount available to the Agent by 2:00 P.M.,
Detroit time, on the Business Day on which such Lender receives notice
from the Agent of such payment or disbursement (it being understood
that any such notice received after noon, Detroit time, on any Business
Day shall
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be deemed to have been received on the next following Business Day),
such Lender agrees to pay interest on such amount to the Agent for the
Issuing Lender's account forthwith on demand, for each day from the
date such amount was to have been delivered to the Agent to the date
such amount is paid, at a rate per annum equal to (a) for the first
three days after demand, the Federal Funds Rate from time to time in
effect and (b) thereafter, the Interest Rate from time to time in
effect. Any Lender's failure to make available to the Agent its Pro
Rata Share of any such payment or disbursement shall not relieve any
other Lender of its obligation hereunder to make available to the Agent
such other Lender's Pro Rata Share of such payment, but no Lender shall
be responsible for the failure of any other Lender to make available to
the Agent such other Lender's Pro Rata Share of any such payment or
disbursement.
1.7 Section 2.5 of the Credit Agreement shall be amended and restated
to read in its entirety as follows:
2.5 Certain Conditions. Notwithstanding any other provision of
this Agreement, no Lender shall have an obligation to make any Loan and
the Issuing Lender shall not have any obligation to issue any Letter of
Credit, if an Event of Default or Unmatured Event of Default has
occurred and is continuing.
1.8 Section 3.1 of the Credit Agreement shall be amended and restated
to read in its entirety as follows:
3.1 Notes. The Loans of each Lender shall be evidenced by a
promissory note (each a "Note") substantially in the form set forth in
Exhibit A, with appropriate insertions, payable to the order of such
Lender as follows:
(a) each Revolving Loan and Acquisition Loan of such Lender
shall be paid in full on the Revolving Termination Date; and
(b) each Term Loan of such Lender shall be paid in
installments equal to such Lender's Pro Rata Share of the aggregate
principal amount of the installments of the Term Loans to be paid on
the following dates:
Payment Date Payment Amount
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December 23, 2001 $20,000,000 (or, if less, the aggregate amount of all
Term Loans then outstanding)
December 23, 2003 $20,000,000 (or, if less, the aggregate amount of all
Term Loans then outstanding)
December 23, 2005 $20,000,000 (or, if less, the aggregate amount of all
Term Loans then outstanding)
Term Loan Termination Date The aggregate amount of all Term Loans then
outstanding.
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1.9 Section 6.1 of the Credit Agreement shall be amended by (i)
deleting the words "LC Guaranties" where they appear in clause (a) and inserting
in lieu thereof the words "Letters of Credit", (ii) deleting clause (c) of such
Section in its entirety and (iii) adding the following clauses (c) and (d):
(c) The Company may from time to time by written notice to the
Agent (which shall promptly advise each Lender thereof) permanently
reduce the Term Commitment Amount to an amount not less than the
aggregate principal amount of all Term Loans then outstanding.
(d) All reductions of the Revolving Commitment Amount, the
Acquisition Commitment Amount and the Term Commitment Amount shall
reduce the Commitments pro rata among the Lenders according to their
respective Pro Rata Shares.
1.10 Section 6.2 of the Credit Agreement shall be amended by adding the
following sentence at the end thereof:
All such prepayments of the Term Loans shall be applied to the
remaining installments thereof in inverse order of maturity.
1.11 The following Sections 6.3 and 6.4 shall be added to the Credit
Agreement:
6.3 Mandatory Reduction of Term Commitment Amount. If the
Subordinated Notes shall be refunded or refinanced using the proceeds
of any Debt (other than Loans hereunder), the Term Commitment Amount
shall automatically and permanently be reduced by an amount equal to
the principal amount of Subordinated Notes so refunded or refinanced.
6.4 Mandatory Prepayments. If the Company or any Subsidiary
shall receive any Net Cash Proceeds from the issuance of any
Subordinated Debt (other than Seller Subordinated Debt and other than
Refinancing Debt in respect of any portion of the Subordinated Notes
that has not been repurchased, redeemed, defeased or otherwise repaid
with the proceeds of Loans) or any other Debt that is not permitted by
Section 9.7, the Company shall, concurrently with such receipt, make a
prepayment of the Term Loans in an amount equal to 100% of such Net
Cash Proceeds. Each such prepayment of the Term Loans shall be applied
to the remaining installments thereof in inverse order of maturity.
1.12 Section 7.5 of the Credit Agreement shall be amended by (i)
deleting the words "LC Guaranty" where they appear and inserting in lieu thereof
the words "Letter of Credit" and (ii) deleting the words "LC Guaranties" where
they appear and inserting in lieu thereof the words "Letters of Credit."
1.13 Section 9.8 of the Credit Agreement shall be amended by deleting
clause (d) thereof in its entirety and substituting the following therefor:
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(d) (i) Liens arising in connection with Capital Leases (and
attaching only to the property being leased), (ii) Liens existing on
property at the time of the acquisition thereof by the Company or any
Subsidiary (and not created in contemplation of such acquisition) and
(iii) Liens that constitute purchase money security interests on any
property securing Debt incurred for the purpose of financing all or any
part of the cost of acquiring such property, provided that any such
Lien attaches to such property within 60 days of the acquisition
thereof and attaches solely to the property so acquired;
1.14 Section 9.9 of the Credit Agreement shall be amended and restated
to read in its entirety as follows:
9.9 Restricted Payments. Not, and not permit any Subsidiary
to, (a) make any distribution to any of its shareholders, (b) purchase
or redeem any of its capital stock or other equity interests or any
warrants, options or other rights in respect thereof, (c) pay any
management fees or similar fees to any of its shareholders or any
Affiliate thereof, (d) make any redemption, prepayment, defeasance or
repurchase of any Subordinated Debt or (e) set aside funds for any of
the foregoing. Notwithstanding the foregoing, (i)(i) any Subsidiary
may pay dividends or make other distributions to the Company or another
Subsidiary and (ii) so long as no Event of Default or Unmatured Event
of Default has occurred and is continuing or would result therefrom,
the Company and its Subsidiaries may (w) pay dividends to its
stockholders and purchase or redeem its capital stock, (x) pay
management fees to Young Automotive Group, LLC, an Indiana limited
liability company ("YAG"), and its Affiliates (collectively, "Young")
in connection with joint ventures formed by the Company and its
Subsidiaries pursuant to that certain Joint Venture Formation
Agreement, dated as of January 31, 1998, among the Company, YAG and
certain other parties (the "Xxxxx XX Agreement"), in an amount not to
exceed 30% of the annual pre-tax income of all Persons in which
Investments are made pursuant to the Xxxxx XX Agreement, (y)
repurchase, redeem, defease or otherwise repay all or any of the
Subordinated Notes using the proceeds of the Term Loans and/or the
proceeds of up to $78,000,000 of Revolving Loans and (z) repurchase,
redeem, defease or otherwise repay all or any of the Subordinated Notes
using the proceeds of an offering of equity securities, which equity
securities are issued by the Company.
1.15 Section 9.12 of the Credit Agreement shall be amended and restated
to read in its entirety as follows:
9.12 Use of Proceeds. Use the proceeds of the Revolving Loans
and Acquisition Loans, and the Letters of Credit, solely for working
capital, for Acquisitions permitted by Section 9.10, for capital
expenditures, to repurchase, redeem, defease or otherwise repay all or
any of the Subordinated Notes (to the extent permitted by Section 9.9)
to make Investments permitted hereunder, to repurchase capital stock
and for other general corporate purposes (including, in the case of
Revolving Loans, to pay Term Loans); use the proceeds of the Term Loans
solely to repurchase, redeem, defease or otherwise repay all or any of
the Subordinated Notes; and not use
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or permit any proceeds of any Loan to be used, either directly or
indirectly, for the purpose, whether immediate, incidental or ultimate,
of "purchasing or carrying" any Margin Stock.
1.16 Section 9.13 of the Credit Agreement shall be amended by (i)
deleting the parenthetical phrase in clause (a)(i) thereof and inserting in lieu
thereof the following "(other than property in which the Company is prohibited
from granting a security interest, pledge or assignment pursuant to a Permitted
Restriction)" and (ii) deleting the first parenthetical phrase in clause (b)
thereof and inserting in lieu thereof the following "(other than property in
which such Subsidiary is prohibited from granting a security interest, pledge or
assignment pursuant to a Permitted Restriction)."
1.17 The lead in paragraph of Section 10 shall be amended and restated
to read in its entirety as follows:
The obligation of each Lender to make its Loans and of the
Issuing Lender to issue Letters of Credit is subject to the following
conditions precedent:
1.18 Section 10.1 of the Credit Agreement shall be amended by deleting
the words "CFC to issue its initial LC Guaranty" where they appear and inserting
in lieu thereof the words "the Issuing Lender to issue its initial Letter of
Credit."
1.19 The lead in paragraph to Section 10.2 of the Credit Agreement
shall be amended and restated to read in its entirety as follows:
10.2 Conditions. The obligation (a) of each Lender to make
each Loan and (b) of the Issuing Lender to issue each Letter of Credit
is subject to the following further conditions precedent that:
1.20 Section 10.2.1 of the Credit Agreement shall be amended by (i)
deleting the word "and" following clause (b) thereof, (ii) amending and
restating clause (c) thereof to read in its entirety as follows
(c) unless the proceeds of such borrowing are to be used to
repurchase, redeem or repay all outstanding Subordinated Notes, for so
long as either Subordinated Notes Indenture is in effect (unless the
obligations of the Company with respect to all Subordinated Notes
thereunder have been, or are concurrently with such borrowing to be,
defeased in accordance with the terms of such Subordinated Notes
Indenture), if after giving effect to such borrowing or the issuance of
such Letter of Credit, the sum of the aggregate principal amount of all
outstanding Loans plus the Stated Amount of all Letters of Credit would
exceed the maximum amount of Debt permitted under each of Section
4.04(ii) of the Series A Subordinated Notes Indenture or Section
4.4(ii) of the Series B Subordinated Notes Indenture, the Agent shall
be satisfied that such borrowing or such issuance of a Letter of Credit
will not violate either Subordinated Notes Indenture (or any
Refinancing Agreement) and that the Company's obligations to the Agent
and the Lenders in respect of such
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borrowing or Letter of Credit are "Senior Debt" under and as defined in
each Subordinated Notes Indenture that is in effect at the time of such
borrowing; and
and (iii) adding the following clause (d)
(d) (i) if the proceeds of any borrowing are to be used to
finance a tender offer for Subordinated Notes, (x) all terms and
conditions of any such tender offer shall be satisfactory to the Agent
(including the maximum tender price and all fees and commissions paid
to any information agent, solicitation agent, dealer manager or Person
performing any similar role) and each such tender offer shall comply
with the offer documents applicable thereto and all applicable laws
(including Rule 14e-1 under the Securities Exchange Act of 1934 and
other Federal and state securities laws and regulations) and (y) there
shall have been delivered to the Agent true and correct copies of all
offer documents applicable thereto, all of which shall be in form and
substance reasonably satisfactory to the Agent (the Agent agrees to
review any such documents received by it reasonably promptly following
receipt) and (ii) if the proceeds of any borrowing are to be used in
connection with any solicitation of consents to amend any Subordinated
Notes Indenture, all terms and conditions of each such consent
solicitation shall be reasonably satisfactory to the Agent (the Agent
agrees to review any such documents received by it reasonably promptly
following receipt).
1.21 The following Section 10.4 shall be added to the Credit Agreement:
10.4 Conditions to Term Loans. The obligation of each Lender
to make Term Loans is subject to the following further conditions
precedent that:
10.4.1 Filings, Registrations and Recordings. The Agent shall
have received each document (including Uniform Commercial Code
financing statements) required by the Collateral Documents or under law
or reasonably requested by the Agent to be filed, registered or
recorded in order to create in favor of the Agent, for the benefit of
the Lenders, a perfected Lien in all equipment of the Company and its
Subsidiaries (other than Foreign Subsidiaries), prior and superior to
any other Person, in proper form for filing, registration or recording.
10.4.2 Subordinated Note Repurchase. The Agent shall be
satisfied that the proceeds of such borrowing are to be used to
repurchase, redeem, defease or otherwise repay the Subordinated Notes.
1.22 The last two sentences of Section 11.2 of the Credit Agreement
shall be deleted and the following inserted in lieu thereof:
Any cash collateral delivered hereunder shall be held by the Agent
(without liability for interest thereon) and applied to reimbursement
obligations under the Letters of Credit. After the expiration or
termination of the Letters of Credit, such cash collateral shall be
applied by the Agent to any
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remaining obligations hereunder and any excess shall be delivered to
the Company or as a court of competent jurisdiction may direct.
1.23 Section 12.1(b) of the Credit Agreement shall be amended and
restated in its entirety to read as follows:
(b) The Issuing Lender shall act on behalf of the Lenders with
respect to any Letters of Credit issued by it and the documents
associated therewith. The Issuing Lender shall have all of the benefits
and immunities (i) provided to the Agent in this Section 12 with
respect to any acts taken or omissions suffered by the Issuing Lender
in connection with Letters of Credit issued by it or proposed to be
issued by it and the applications and agreements for letters of credit
pertaining to such Letters of Credit as fully as if the term "Agent",
as used in this Section 12, included the Issuing Lender with respect to
such acts or omissions and (ii) as additionally provided in this
Agreement with respect to the Issuing Lender.
1.24 Section 13.1 of the Credit Agreement shall be amended by (i)
deleting clause (i) of the penultimate sentence and inserting the following in
lieu thereof "(i) increase the Revolving Commitment Amount, the Acquisition
Commitment Amount or the Term Commitment Amount" and (ii) deleting the final
sentence and inserting the following in lieu thereof:
No provision of this Agreement relating to the rights or duties of the
Issuing Lender in its capacity as such shall be amended, modified or
waived without the consent of the Issuing Lender.
1.25 Section 13.9.1 of the Credit Agreement shall be amended by (i)
deleting the word "CFC" where it appears and inserting in lieu thereof the words
"the Issuing Lender" and (ii) adding he following to clause (i) of the first
sentence thereof "plus the unpaid amount of such Lender's Term Loans."
1.26 Schedule 2.1 to the Credit Agreement is replaced by Schedule 2.1
hereto.
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) 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
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bylaws of the Company or of any agreement, indenture, instrument or other
document which is binding on the Company or any of its Subsidiaries; and (d) 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 and (b) each of the following documents, each
in form and substance reasonably satisfactory to the Agent:
3.1 Reaffirmation. A Reaffirmation of Loan Documents in the form
attached hereto as Exhibit A executed by each Loan Party other than the Company.
3.2 Security Agreement. A counterpart of the Amended and Restated
Security Agreement in substantially the form attached hereto as Exhibit B
executed by the Company and each Subsidiary (other than Foreign Subsidiaries).
3.3 Opinion of Counsel. An opinion of counsel or counsels reasonably
satisfactory to the Agent.
3.4 Other Documents. Such other documents as the Agent or any Lender
may reasonably request.
SECTION 4 MISCELLANEOUS.
4.1 Continuing Effectiveness, etc. As herein 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.
Delivered as of the day and year first above written.
-12-
13
UNITED AUTO GROUP, INC.
By
---------------------------
Title
------------------------
CHRYSLER FINANCIAL
COMPANY, L.L.C., as
Agent and as a Lender
By
---------------------------
Title
-----------------------
-13-
14
EXHIBIT A
REAFFIRMATION OF
LOAN DOCUMENTS
December 23, 1999
Chrysler Financial Company, L.L.C., as Agent
and the other parties
to the Credit Agreement
referred to below
RE: REAFFIRMATION OF LOAN DOCUMENTS
Ladies and Gentlemen:
Please refer to:
1. The Pledge Agreement dated as of October 8, 1999 (the
"Pledge Agreement") among United Auto Group, Inc. ("UAG"), various of
its subsidiaries and Chrysler Financial Company, L.L.C., in its
capacity as Agent (in such capacity, the "Agent");
2. The Guaranty dated as of October 8, 1999 (the "Guaranty")
executed in favor of the Agent and various other parties by all
subsidiaries of UAG; and
3. The Security Agreement dated as of October 8, 1999 (the
"Security Agreement") among UAG, its subsidiaries and the Agent.
The Guaranty, the Pledge Agreement, the Security Agreement and the
Credit Agreement referred to below are collectively referred to herein as the
"Loan Documents". Capitalized terms not otherwise defined herein will have the
meanings given in the Credit Agreement referred to below.
Each of the undersigned acknowledges that the Company, the Lenders and
the Agent have executed the Second Amendment (the "Amendment") to the Credit
Agreement dated as of August 3, 1999 (as heretofore amended, as so amended and
as the same may be further amended, supplemented or otherwise modified from time
to time, the "Credit Agreement").
Each of the undersigned hereby (i) consents and agrees to the
amendments to the Loan Documents to which such undersigned is a party contained
in the Amendment and (ii) confirms that each Loan
15
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 such Loan Document to the "Credit Agreement"
shall be references to the Credit Agreement as amended by the Amendment.
-2-
16
The letter agreement may be signed in counterparts and by the various
parties as herein 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.
DIFEO PARTNERSHIP HCT, INC.
DIFEO PARTNERSHIP SCT, INC.
DIFEO PARTNERSHIP RCT, INC.
DIFEO PARTNERSHIP RCM, INC.
DIFEO PARTNERSHIP VIII, INC.
DIFEO PARTNERSHIP IX, INC.
DIFEO PARTNERSHIP X, INC.
UAG XXXXXX, INC.
SOMERSET MOTORS INC.
UAG NORTHEAST BODY SHOP, INC.
UAG NORTHEAST (NY), INC.
UNITED XXXXXXX, INC.
XXXXXXX AUTO SALES, INC.
XXXXXXX UNITED AUTO GROUP NO. 2, INC.
XXXXXXX UNITED AUTO GROUP, INC.
XXXXXXX UNITED AUTO GROUP NO. 3, INC.
XXXXXXX UNITED AUTO GROUP NO. 4, INC.
XXXXXXX BUICK-PONTIAC, INC.
UNITED AUTO GROUP, INC.
UAG ATLANTA, INC.
UAG DULUTH, INC.
UAG ATLANTA II, INC.
UNITED NISSAN, INC. (GA)
UNITED NISSAN, INC. (NY)
UNITED NISSAN, INC. (TN)
UAG ATLANTA III, INC.
PEACHTREE NISSAN, INC.
UAG ATLANTA IV, INC.
UAG ATLANTA IV MOTORS, INC.
UAG ATLANTA V, INC.
XXXXXXX NISSAN, INC.
UAG ATLANTA VI, INC.
UNITED JEEP CHRYSLER PLYMOUTH OF
STONE MOUNTAIN, INC.
UNITED MAZDA, INC.
-3-
17
UAG TENNESSEE, 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.
TRI-CITY LEASING, INC.
HT AUTOMOTIVE LTD.
UAG NEVADA, INC.
UAG TEXAS, INC.
UAG TEXAS II, INC.
UAG EAST, INC.
WESTBURY SUPERSTORE, LTD.
WESTBURY NISSAN LTD.
PALM AUTO PLAZA, INC.
FLORIDA CHRYSLER PLYMOUTH, INC.
WEST PALM NISSAN, INC.
WEST PALM INFINITI, INC.
NORTHLAKE AUTO FINISH, INC.
J & S AUTO REFINISHING, LTD.
J&S IMPORTS, INC.
WEST PALM AUTO MALL, INC.
AUTO MALL PAYROLL SERVICES, INC.
AUTO MALL STORAGE, INC.
AMITY AUTO PLAZA, LTD.
AMITY NISSAN OF MASSAPEQUA, LTD.
UAG CAROLINA, INC.
XXXX-XXXXXXX CHEVROLET, INC.
XXXXXXX CHEVROLET-OLDSMOBILE, INC.
XXXX XXXX CHEVROLET, INC.
UNITEDAUTO DODGE OF SHREVEPORT,
INC.
UAG MEMPHIS, INC.
XXXXXXXXX PIKE DODGE, INC.
UAG GRACELAND, INC.
-4-
18
THE NEW GRACELAND DODGE, INC.
UAG GRACELAND II, INC.
UAG MEMPHIS II, INC.
UAG MEMPHIS III, INC.
UAG MEMPHIS IV, INC.
UAG MEMPHIS V, INC.
UAG KNOXVILLE, INC.
UAG KNOXVILLE II, INC.
UAG-CARIBBEAN, INC.
UAG YOUNG, INC.
XXX XXXXX INC.
XXX XXXXX CHEVROLET INC.
YOUNG MANAGEMENT GROUP, INC.
PARKWAY CHEVROLET, INC.
UAG YOUNG II, INC.
UAG CENTURY MOTORS, INC.
UAG PARAMOUNT MOTORS, INC.
UAG KISSIMMEE MOTORS, INC.
UAG CITRUS, INC.
UAG CLASSIC, INC.
CLASSIC AUTO GROUP, INC.
CHERRY HILL CLASSIC CARS, INC.
CLASSIC OF CHERRY HILL, INC.
CLASSIC MANAGEMENT COMPANY, INC.
CLASSIC CHEVROLET, INC.
CLASSIC ENTERPRISE, INC.
CLASSIC AUTO GROUP HOLDINGS, INC.
CLASSIC IMPORTS, INC.
UNITEDAUTO ENTERPRISES, INC.
UNITED AUTOCARE, INC.
UNITED AUTOCARE PRODUCTS, INC.
UNITEDAUTO FOURTH FUNDING INC.
UNITEDAUTO FIFTH FUNDING INC.
AUTO LEASING CORPORATION
UAG FINANCE COMPANY, INC.
6725 DEALERSHIP LTD.
CHERRY HILL CLASSIC CARS
CLASSIC MOTOR SALES LLC
X. XXXXX CHEVROLET LLC
XXX XXXXX MOTORS LLC
XXX XXXXX XXXXXX LLC
UAG YOUNG AUTOMOTIVE GROUP LLC
-5-
19
UAG XXXXXXX, INC.
YOUNG AUTOMOTIVE HOLDINGS LLC
UAG LAKE XXXXXX LLC
By:
----------------------------------
Title:
-------------------------------
DIFEO HYUNDAI PARTNERSHIP
DIFEO NISSAN PARTNERSHIP
DIFEO CHRYSLER PLYMOUTH JEEP
EAGLE PARTNERSHIP
DIFEO LEASING PARTNERSHIP
DIFEO CHEVROLET-GEO PARTNERSHIP
J&F OLDSMOBILE PARTNERSHIP
DANBURY AUTO PARTNERSHIP
FAIR HYUNDAI PARTNERSHIP
FAIR CHEVROLET-GEO PARTNERSHIP
DANBURY CHRYSLER PLYMOUTH PARTNERSHIP
DIFEO TENAFLY PARTNERSHIP
By: DIFEO PARTNERSHIP, INC.
a general partner
By:
----------------------------------
Title:
-------------------------------
OCT PARTNERSHIP
By: DIFEO PARTNERSHIP VIII, INC.
a general partner
By:
----------------------------------
Title:
-------------------------------
-6-
20
OCM PARTNERSHIP
By: DIFEO PARTNERSHIP IX, INC.
a general partner
By:
----------------------------------
Title:
-------------------------------
XXXXXX MOTORS PARTNERSHIP
By: DIFEO PARTNERSHIP HCT, INC.
a general partner
By:
----------------------------------
Title:
-------------------------------
COUNTY AUTO GROUP PARTNERSHIP
By: DIFEO PARTNERSHIP RCT, INC.
a general partner
By:
----------------------------------
Title:
-------------------------------
SOMERSET MOTORS PARTNERSHIP
By: DIFEO PARTNERSHIP SCT, INC.
a general partner
By:
----------------------------------
Title:
-------------------------------
-7-
21
ROCKLAND MOTORS PARTNERSHIP
By: DIFEO PARTNERSHIP RCM, INC.
a general partner
By:
----------------------------------
Title:
-------------------------------
6725 AGENT PARTNERSHIP
By: SAU AUTOMOTIVE, LTD.
a general partner
By:
----------------------------------
Title:
-------------------------------
XXXXXXX AUTOMOTIVE, LTD.
By: UAG TEXAS, INC.
a general partner
By:
----------------------------------
Title:
-------------------------------
XXX XXXXX XXXXXX, LLC
By: XXX XXXXX, INC.
Member
By:
----------------------------------
Title:
-------------------------------
-8-
22
YOUNG AUTOMOTIVE HOLDINGS, LLC
UAG YOUNG AUTOMOTIVE GROUP, LLC
X. XXXXX CHEVROLET, LLC
By: UAG YOUNG, INC.
Member
By:
----------------------------------
Title:
-------------------------------
XXX XXXXX MOTORS LLC
By: XXX XXXXX CHEVROLET, INC.
Member
By:
----------------------------------
Title:
-------------------------------
UAG CITRUS MOTORS, LLC
By: UAG CITRUS, INC.
Member
By:
----------------------------------
Title:
-------------------------------
CLASSIC MOTOR SALES, LLC
CLASSIC ENTERPRISES, LLC
By: UAG CITRUS, INC.
Member
By:
----------------------------------
Title:
-------------------------------
-9-
23
CLASSIC NISSAN OF TURNERSVILLE, LLC
By: Xxxxxx X. Xxxxxxx
Member
----------------------------------
-10-
24
SCOTTSDALE JAGUAR, LTD.
By:
----------------------------------
Title:
-------------------------------
-11-
25
XXXXXXX UNITED AUTO GROUP NO. 5, INC.
BPT HOLDINGS, INC.
XXXXXXX FORD, INC
NATIONAL CITY FORD, INC.
CENTRAL FORD CENTER, INC.
PIONEER FORD SALES, INC.
By:
----------------------------------
Title:
-------------------------------
ACKNOWLEDGED AND AGREED
as of the date first written above
CHRYSLER FINANCIAL COMPANY, L.L.C.,
as Agent
By:
----------------------------------
Title:
-------------------------------
-12-
