EXHIBIT 4.9
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AMENDMENT NO. 3
TO
SECURITIES PURCHASE AGREEMENT
This Amendment No. 3 to Securities Purchase Agreement (this
"Amendment") dated as of October 13, 1998 is entered into by and among the New
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Subsidiary (as defined below) and each of the parties to the Securities Purchase
Agreement dated as of July 11, 1997 (the "Securities Purchase Agreement") by and
among FirstAmerica Automotive, Inc., a Delaware Corporation (the "Company"), the
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Guarantors (as defined therein) and the purchasers listed on the signatures
pages thereto, as amended.
WHEREAS, the parties hereto desire to add the New Subsidiary (as
defined below) as a party to the Securities Purchase Agreement, in the capacity
as a Guarantor.
NOW, THEREFORE, in consideration of the foregoing, and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
Section 1. Definitions. For all purposes of this Amendment:
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(a) Capitalized terms used but not defined herein shall have the
respective meanings assigned to such terms in the Securities Purchase
Agreement; and
(b) The terms "hereby," "hereto," and "herewith" and other words
of similar import refer to this Amendment.
Section 2. New Subsidiary Guarantor.
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(a) In accordance with the provisions of Section 10.3 of the
Securities Purchase Agreement, FAA Concord T, Inc., a California
corporation, (the "New Subsidiary"), is hereby joined as a party to the
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Securities Purchase Agreement and agrees that by its execution hereof (i)
it shall be deemed to have executed the Securities Purchase Agreement, and
is a Guarantor thereunder for all purposes thereof, (ii) it hereby makes
the Subsidiary Guaranty contained in the Securities Purchase Agreement, and
undertakes, covenants and agrees to all of the obligations, agreements,
waivers and other provisions under the Securities Purchase Agreement as a
Guarantor thereunder, and (iii) it hereby affirms and makes all of the
representations and warranties made by each Guarantor under the Securities
Purchase Agreement. All references in the Securities Purchase Agreement
and in the Notes to a Guarantor shall hereafter include the New Subsidiary.
(b) For value received, the New Subsidiary hereby unconditionally
guarantees to the Holders of the Notes (i) the due and punctual payment, on
the basis set forth in the Securities Purchase Agreement pursuant to which
the Notes and this guaranty were issued, of the principal of, premium (if
any) and interest on such Notes when and as the same shall become due and
payable for any reason according to the terms of such Notes and Section 10
of the Securities Purchase Agreement, and (ii) that all other obligations
of the Company under the Securities Purchase Agreement or the Notes will be
promptly paid in full or performed in accordance with the terms of the
Securities Purchase Agreement and the Notes.
(c) Each of the Company and each of its Subsidiaries (including
without limitation the New Subsidiary) hereby acknowledges that its
execution of this Amendment satisfies the requirements of and constitutes
compliance with the terms of Section 10 of the Securities Purchase
Agreement (including without limitation Section 10.3 thereof).
(d) Each of the Company and each of its Subsidiaries (including
without limitation the New Subsidiary) hereby represents and warrants to
the Holders that this Amendment has been duly authorized, executed and
delivered, by it and constitutes its legal, valid and binding obligation,
enforceable against it in accordance with its terms.
Section 3. New Purchase Price Allocable To The Additional Common Shares.
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Notwithstanding the provisions of the Securities Purchase
Agreement (including without limitation Section 1.2(c) thereof), the
purchase price allocable to the Additional Common Shares shall be $2.00 per
share.
Section 4. Miscellaneous.
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(a) THIS AMENDMENT AND ALL ISSUES HEREUNDER SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF
CALIFORNIA (WITHOUT REFERENCE TO PRINCIPLES OF CONFLICTS OF LAW).
(b) Upon the execution and delivery of this Amendment, the
Securities Purchase Agreement shall be amended in accordance herewith and
this Amendment shall form a part of the Securities Purchase Agreement for
all purposes, and the parties hereto and every Holder shall be bound by the
Securities Purchase Agreement, as so amended.
(c) This Amendment may be executed in as many counterparts as may
be deemed necessary and convenient, and by the different parties hereto on
separate counterparts each of which, when so executed, shall be deemed an
original, but all such counterparts shall constitute one and the same
instrument.
(d) The Section headings of this Amendment are for convenience of
reference only and shall not be deemed to modify, explain, restrict, alter
or affect the meaning or interpretation of any provision hereof.
[Signatures Follow]
IN WITNESS WHEREOF, this Amendment has been duly executed by the
parties set forth below as of the date first written above.
Company:
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FIRSTAMERICA AUTOMOTIVE, INC.
By: /s/ Xxxxxx X. Price
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Name: Xxxxxx X. Price
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Title: President
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Guarantors:
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FAA SAN BRUNO, INC. FAA STEVENS CREEK, INC.
By: /s/ Xxxxxx X. Price By: /s/ Xxxxxx X. Price
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Name: Xxxxxx X. Price Name: Xxxxxx X. Price
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Title: President Title: President
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SMART NISSAN, INC. FAA DEALER SERVICES, INC.
By: /s/ Xxxxxx X. Price By: /s/ Xxxxxx X. Price
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Name: Xxxxxx X. Price Name: Xxxxxx X. Price
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Title: President Title: President
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TRANSCAR LEASING, INC. FAA CONCORD H, INC.
By: /s/ Xxxxxx X. Price By: /s/ Xxxxxx X. Price
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Name: Xxxxxx X. Price Name: Xxxxxx X. Price
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Title: President Title: President
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FAA CONCORD N, INC. FAA POWAY D, INC.
By: /s/ Xxxxxx X. Price By: /s/ Xxxxxx X. Price
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Name: Xxxxxx X. Price Name: Xxxxxx X. Price
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Title: President Title: President
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FAA POWAY T, INC. FAA POWAY H, INC.
By: /s/ Xxxxxx X. Price By: /s/ Xxxxxx X. Price
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Name: Xxxxxx X. Price Name: Xxxxxx X. Price
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Title: President Title: President
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FAA DUBLIN VWD, INC. FAA DUBLIN N, INC.
By: /s/ Xxxxxx X. Price By: /s/ Xxxxxx X. Price
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Name: Xxxxxx X. Price Name: Xxxxxx X. Price
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Title: President Title: President
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FAA SERRAMONTE L, INC. FAA SERRAMONTE, INC.
By: /s/ Xxxxxx X. Price By: /s/ Xxxxxx X. Price
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Name: Xxxxxx X. Price Name: Xxxxxx X. Price
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Title: President Title: President
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FAA CAPITOL N, INC. FAA AUTO FACTORY, INC.
By: /s/ Xxxxxx X. Price By: /s/ Xxxxxx X. Price
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Name: Xxxxxx X. Price Name: Xxxxxx X. Price
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Title: President Title: President
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FAA SERRAMONTE H, INC. FAA POWAY G, INC.
By: /s/ Xxxxxx X. Price By: /s/ Xxxxxx X. Price
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Name: Xxxxxx X. Price Name: Xxxxxx X. Price
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Title: President Title: President
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FAA XXXXXXX HILLS, INC. FAA CONCORD T, INC.
By: /s/ Xxxxxx X. Price By: /s/ Xxxxxx X. Price
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Name: Xxxxxx X. Price Name: Xxxxxx X. Price
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Title: President Title: President
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