MODIFICATION NUMBER TWO TO MASTER LOAN AGREEMENT
Exhibit 10.1
MODIFICATION NUMBER TWO
THIS MODIFICATION NUMBER TWO TO MASTER LOAN AGREEMENT (the “Agreement”), dated as of May 7, 2009, effective as of April 29, 2009 (the “Effective Date”) between NP FLM L.L.C., a Delaware limited liability company, PREMIER NSN L.L.C., a Delaware limited liability company, XXXXXX ATLANTA JAGUAR L.L.C., a Delaware limited liability company, XXXXXX ATLANTA LEX L.L.C., a Delaware limited liability company, CN MOTORS, LTD., a Florida limited partnership, C&O PROPERTIES, LTD., a Florida limited partnership, CFP MOTORS, LTD., a Florida limited partnership, AVENUES MOTORS, LTD., a Florida limited partnership, AF MOTORS, L.L.C., a Delaware limited liability company, ALM MOTORS, L.L.C., a Delaware limited liability company, XXXXXX-XXXXXX IMPORTS, L.L.C., a Delaware limited liability company, XXXXXX CHEVROLET L.L.C., a Delaware limited liability company, XXXXXX CARS L.L.C., a Delaware limited liability company, CH MOTORS, LTD., a Florida limited partnership, HFP MOTORS L.L.C., a Delaware limited liability company, CROWN GPG L.L.C., a Delaware limited liability company, CROWN CHV L.L.C., a Delaware limited liability company, CROWN GHO L.L.C., a Delaware limited liability company, CROWN GDO L.L.C., a Delaware limited liability company, CROWN RIB L.L.C., a Delaware limited liability company, CROWN MOTORCAR COMPANY L.L.C., a Delaware limited liability company, XXXXXX AUTOMOTIVE ATLANTA L.L.C., a Delaware limited liability company, XXXXXXX XXXXXX-HON, L.L.C., a Delaware limited liability company, XXXXXXX PLANO-ACRA, L.L.C., a Delaware limited liability company, XXXXXXX XXXXXX-ACRA, L.L.C., a Delaware limited liability company, XXXXXXX HOUSTON-HON, L.L.C., a Delaware limited liability company, XXXXXXX XXXXXXX-XXXX, L.L.C., a Delaware limited liability company and XXXXXX AUTOMOTIVE TEXAS REAL ESTATE HOLDINGS L.L.C., a Delaware limited liability company (each referred to herein individually and collectively as “Borrower”), and WACHOVIA BANK, NATIONAL ASSOCIATION, a national banking association (together with its successors and assigns, “WBNA”) and WACHOVIA FINANCIAL SERVICES, INC., a North Carolina corporation (together with its successors and assigns, “WFSI”) (WBNA and WFSI referred to herein individually and collectively as “Lender”).
RECITALS
A. Lender is the holder of certain Notes, as modified from time to time, executed and delivered by Borrower and certain other loan documents, including without limitation, a Master Loan Agreement, dated as of June 4, 2008, as modified from time to time (the “Loan Agreement”).
B. Borrower and Lender have agreed to modify the terms of the Loan Agreement as set forth herein.
In consideration of Lender’s continued extension of credit and the agreements contained herein, the parties agree as follows:
AGREEMENT
ACKNOWLEDGMENT OF BALANCE. Borrower acknowledges that the most recent Commercial Loan Invoices sent to Borrower with respect to the Obligations under each Note is correct.
DEFINITIONS. Terms used in this Agreement which are capitalized and not otherwise defined herein shall have the meanings ascribed to such terms in the Loan Agreement.
MODIFICATIONS.
1. Section 1.1 “Defined Terms” of the Loan Agreement is hereby amended by deleting the definition of “Revolving Credit Agreement” in its entirety and substituting the following new definition of “Revolving Credit Facility” in lieu thereof:
“‘Revolving Credit Facility’ means that certain senior credit facility evidenced in part by that Credit Agreement, dated as of September 26, 2008, among Xxxxxx Automotive Group, Inc., certain lenders and Bank of America, N.A., as Administrative Agent, Swing Line Lender and L/C Issuer, as modified, renewed or extended from time to time and that certain Subsidiary Guaranty Agreement, dated as of September 26, 2008, by and among certain subsidiaries of Xxxxxx Automotive Group, Inc. (including Borrower) and Bank of America, N.A., as Administrative Agent.”
2. Section 5.15 of the Loan Agreement is hereby deleted in its entirety and the following new Section 5.15 is hereby substituted in lieu thereof:
“5.15 Subordination. Borrower shall cause all debt and other obligations now or hereafter owed to any Affiliate (other than Guarantor), other than trade payables incurred and receivables established in the ordinary course of business, to be subordinated in right of payment and security to the Obligations in accordance with subordination agreements satisfactory to Lender.”
3. Section 6.1 of the Loan Agreement is hereby amended by deleting the phrase “Revolving Credit Agreement” throughout and replacing it with the phrase “Revolving Credit Facility.”
4. Section 8.1.8 of the Loan Agreement is hereby deleted in its entirety and the following new Section 8.1.8 is hereby substituted in lieu thereof:
“8.1.8 Default under the Revolving Credit Facility. There shall occur any default under the Revolving Credit Facility, which is not cured within any applicable grace period, if any; or”.
5. The Loan Agreement is hereby amended by deleting Exhibit 5.15 in its entirety.
FACILITY FEE. In connection with the modification of the Loans, Borrower shall pay to Lender contemporaneously with the execution hereof a non-refundable, fully earned facility fee in the aggregate amount of $140,000.
ACKNOWLEDGMENTS AND REPRESENTATIONS. Borrower acknowledges and represents that the Note, the Loan Agreement and other Loan Documents, as amended hereby, are in full force and effect without any defense, counterclaim, right or claim of set-off; that, after giving effect to this
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Agreement, no Event of Default under the Loan Documents has occurred, all representations and warranties contained in the Loan Documents are true and correct as of the Effective Date, all necessary action to authorize the execution and delivery of this Agreement has been taken; and this Agreement is a modification of an existing obligation and is not a novation.
COLLATERAL. Borrower acknowledges and confirms that there have been no changes in the ownership of any Collateral since the Collateral was originally pledged; Borrower acknowledges and confirms that the Lender has existing, valid first priority security interests and liens in the Collateral; and that such security interests and liens shall secure Borrower’s Obligations, including any modification of the Note or Loan Agreement, if any, and all future modifications, extensions, renewals and/or replacements of the Loan Documents.
MISCELLANEOUS. This Agreement shall be construed in accordance with and governed by the laws of the Jurisdiction as originally provided in the Loan Documents, without reference to the Jurisdiction’s conflicts of law principles. This Agreement and the other Loan Documents constitute the sole agreement of the parties with respect to the subject matter thereof and supersede all oral negotiations and prior writings with respect to the subject matter thereof. No amendment of this Agreement, and no waiver of any one or more of the provisions hereof shall be effective unless set forth in writing and signed by the parties hereto. The illegality, unenforceability or inconsistency of any provision of this Agreement shall not in any way affect or impair the legality, enforceability or consistency of the remaining provisions of this Agreement or the other Loan Documents. This Agreement and the other Loan Documents are intended to be consistent. However, in the event of any inconsistencies among this Agreement and any of the Loan Documents, the terms of this Agreement, and then the Loan Agreement, shall control. This Agreement may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which when so executed and delivered shall be deemed an original and all of which when taken together shall constitute but one and the same instrument. Any signature delivered by a party by facsimile transmission shall be deemed to be an original signature hereto. LIMITATION ON LIABILITY; WAIVER OF PUNITIVE DAMAGES. EACH OF THE PARTIES HERETO, INCLUDING LENDER BY ACCEPTANCE HEREOF, AGREES THAT IN ANY JUDICIAL, MEDIATION OR ARBITRATION PROCEEDING OR ANY CLAIM OR CONTROVERSY BETWEEN OR AMONG THEM (A “DISPUTE”) THAT MAY ARISE OUT OF OR BE IN ANY WAY CONNECTED WITH THIS AGREEMENT, THE LOAN DOCUMENTS OR ANY OTHER AGREEMENT OR DOCUMENT BETWEEN OR AMONG THEM OR THE OBLIGATIONS EVIDENCED HEREBY OR RELATED HERETO, IN NO EVENT SHALL ANY PARTY HAVE A REMEDY OF, OR BE LIABLE TO THE OTHER FOR, (A) INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES OR (B) PUNITIVE OR EXEMPLARY DAMAGES. EACH OF THE PARTIES HEREBY EXPRESSLY WAIVES ANY RIGHT OR CLAIM TO PUNITIVE OR EXEMPLARY DAMAGES THEY MAY HAVE OR WHICH MAY ARISE IN THE FUTURE IN CONNECTION WITH ANY SUCH PROCEEDING, CLAIM OR CONTROVERSY, WHETHER THE DISPUTE IS RESOLVED BY ARBITRATION, MEDIATION, JUDICIALLY OR OTHERWISE. Final Agreement. This Agreement and the other Loan Documents represent the final agreement between the parties and may not be contradicted by evidence of prior, contemporaneous or subsequent oral agreements of the parties. There are no unwritten oral agreements between the parties.
ARBITRATION. Upon demand of any party hereto, whether made before or after institution of any judicial proceeding, any claim or controversy arising out of or relating to the Loan Documents
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between parties hereto shall be resolved by binding arbitration conducted under and governed by the Commercial Financial Disputes Arbitration Rules (the “Arbitration Rules”) of the American Arbitration Association (the “AAA”) and the Federal Arbitration Act. Disputes may include, without limitation, tort claims, counterclaims, a dispute as to whether a matter is subject to arbitration, or claims arising from documents executed in the future, but shall specifically exclude claims brought as or converted to class actions. A judgment upon the award may be entered in any court having jurisdiction. Notwithstanding the foregoing, this arbitration provision does not apply to disputes under or related to swap agreements. Special Rules. All arbitration hearings shall be conducted in Charlotte, North Carolina. A hearing shall begin within 90 days of demand for arbitration and all hearings shall conclude within 120 days of demand for arbitration. These time limitations may not be extended unless a party shows cause for extension and then for no more than a total of 60 days. The expedited procedures set forth in Rule 51 et seq. of the Arbitration Rules shall be applicable to claims of less than $1,000,000.00. Arbitrators shall be licensed attorneys selected from the Commercial Financial Dispute Arbitration Panel of the AAA. The parties do not waive applicable Federal or state substantive law except as provided herein. Preservation and Limitation of Remedies. Notwithstanding the preceding binding arbitration provisions, the parties agree to preserve, without diminution, certain remedies that any party may exercise before or after an arbitration proceeding is brought. The parties shall have the right to proceed in any court of proper jurisdiction or by self-help to exercise or prosecute the following remedies, as applicable: (a) all rights to foreclose against any real or personal property or other security by exercising a power of sale or under applicable law by judicial foreclosure including a proceeding to confirm the sale; (b) all rights of self-help including peaceful occupation of real property and collection of rents, set-off, and peaceful possession of personal property; (c) obtaining provisional or ancillary remedies including injunctive relief, sequestration, garnishment, attachment, appointment of receiver and filing an involuntary bankruptcy proceeding; and (d) when applicable, a judgment by confession of judgment. Any claim or controversy with regard to any party’s entitlement to such remedies is a Dispute. Waiver of Jury Trial. THE PARTIES ACKNOWLEDGE THAT BY AGREEING TO BINDING ARBITRATION THEY HAVE IRREVOCABLY WAIVED ANY RIGHT THEY MAY HAVE TO JURY TRIAL WITH REGARD TO A DISPUTE.
[Signatures on following page]
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IN WITNESS WHEREOF, the parties hereto have caused this Modification Number Two to Master Loan Agreement to be duly executed under seal as of the day and year first above written.
| Property 1 | CH MOTORS, LTD., a Florida limited partnership | |||
| By: | /s/ Xxxxx X. Xxxxxxxx | |||
| Xxxxx Xxxxxxxx, its Vice President | ||||
| Property 2 | CN MOTORS, LTD., a Florida limited partnership | |||
| By: | /s/ Xxxxx X. Xxxxxxxx | |||
| Xxxxx Xxxxxxxx, its Vice President | ||||
| Property 3 BRIDGE |
C&O PROPERTIES, LTD., a Florida limited partnership | |||
| By: | /s/ Xxxxx X. Xxxxxxxx | |||
| Xxxxx Xxxxxxxx, its Vice President | ||||
| Property 4 | XXXXXX CARS L.L.C., a Delaware limited liability company | |||
| By: | /s/ Xxxxx X. Xxxxxxxx | |||
| Xxxxx Xxxxxxxx, its Vice President | ||||
| Property 5 | XXXXXX CHEVROLET L.L.C., a Delaware limited liability company | |||
| By: | /s/ Xxxxx X. Xxxxxxxx | |||
| Xxxxx Xxxxxxxx, its Vice President | ||||
| Property 6 | AVENUES MOTORS, LTD., a Florida limited partnership | |||
| By: | /s/ Xxxxx X. Xxxxxxxx | |||
| Xxxxx Xxxxxxxx, its Vice President | ||||
[Signatures continue on following page]
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| Property 7 | AF MOTORS, L.L.C., a Delaware limited liability company | |||
| By: | /s/ Xxxxx X. Xxxxxxxx | |||
| Xxxxx Xxxxxxxx, its Vice President | ||||
| And | ||||
| ALM MOTORS, L.L.C., a Delaware limited liability company | ||||
| By: | /s/ Xxxxx X. Xxxxxxxx | |||
| Xxxxx Xxxxxxxx, its Vice President | ||||
| Property 8 | XXXXXX-XXXXXX IMPORTS, L.L.C., a Delaware limited liability company | |||
| By: | /s/ Xxxxx X. Xxxxxxxx | |||
| Xxxxx Xxxxxxxx, its Vice President | ||||
| Property 9 | HFP MOTORS L.L.C., a Delaware limited liability company | |||
| By: | /s/ Xxxxx X. Xxxxxxxx | |||
| Xxxxx Xxxxxxxx, its Vice President | ||||
| Property 10 | CFP MOTORS, LTD., a Florida limited partnership | |||
| By: | /s/ Xxxxx X. Xxxxxxxx | |||
| Xxxxx Xxxxxxxx, its Vice President | ||||
| Property 11 | CROWN GHO L.L.C., a Delaware limited liability company | |||
| By: | /s/ Xxxxx X. Xxxxxxxx | |||
| Xxxxx Xxxxxxxx, its Vice President | ||||
[Signatures continue on following page]
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| Property 12 | CROWN GDO L.L.C., a Delaware limited liability company | |||
| By: | /s/ Xxxxx X. Xxxxxxxx | |||
| Xxxxx Xxxxxxxx, its Vice President | ||||
| Property 13 | CROWN GPG L.L.C., a Delaware limited liability company | |||
| By: | /s/ Xxxxx X. Xxxxxxxx | |||
| Xxxxx Xxxxxxxx, its Vice President | ||||
| Property 14 BRIDGE |
CROWN CHV L.L.C., a Delaware limited liability company | |||
| By: | /s/ Xxxxx X. Xxxxxxxx | |||
| Xxxxx Xxxxxxxx, its Vice President | ||||
| Property 15 | CROWN RIB L.L.C., a Delaware limited liability company | |||
| By: | /s/ Xxxxx X. Xxxxxxxx | |||
| Xxxxx Xxxxxxxx, its Vice President | ||||
| Property 16 | CROWN MOTORCAR COMPANY L.L.C., a Delaware limited liability company | |||
| By: | /s/ Xxxxx X. Xxxxxxxx | |||
| Xxxxx Xxxxxxxx, its Vice President | ||||
| Property 00 | XXXXXX XXXXXXX LEX L.L.C., a Delaware limited liability company | |||
| By: | /s/ Xxxxx X. Xxxxxxxx | |||
| Xxxxx Xxxxxxxx, its Vice President | ||||
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| Property 00 | XXXXXX XXXXXXX JAGUAR L.L.C., a Delaware limited liability company | |||
| By: | /s/ Xxxxx X. Xxxxxxxx | |||
| Xxxxx Xxxxxxxx, its Vice President | ||||
| Property 19 | PREMIER NSN L.L.C., a Delaware limited liability company | |||
| By: | /s/ Xxxxx X. Xxxxxxxx | |||
| Xxxxx Xxxxxxxx, its Vice President | ||||
| Property 20 | NP FLM L.L.C., a Delaware limited liability company | |||
| By: | /s/ Xxxxx X. Xxxxxxxx | |||
| Xxxxx Xxxxxxxx, its Vice President | ||||
| Property 21 | XXXXXX AUTOMOTIVE ATLANTA L.L.C., a Delaware limited liability company | |||
| By: | /s/ Xxxxx X. Xxxxxxxx | |||
| Xxxxx Xxxxxxxx, its Vice President | ||||
| Property 22 and 23 | XXXXXXX XXXXXX-HON, L.L.C., a Delaware limited liability company | |||
| By: | /s/ Xxxxx X. Xxxxxxxx | |||
| Xxxxx Xxxxxxxx, its Vice President | ||||
| Property 24 | XXXXXX AUTOMOTIVE TEXAS REAL ESTATE HOLDINGS L.L.C., a Delaware limited liability company | |||
| By: | /s/ Xxxxx X. Xxxxxxxx | |||
| Xxxxx Xxxxxxxx, its Vice President | ||||
[Signatures continue on following page]
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| Property 25 | XXXXXXX PLANO-ACRA, L.L.C., a Delaware limited liability company | |||
| By: | /s/ Xxxxx X. Xxxxxxxx | |||
| Xxxxx Xxxxxxxx, its Vice President | ||||
| Property 26, 30, 31 and 32 | XXXXXXX HOUSTON-HON, L.L.C., a Delaware limited liability company | |||
| By: | /s/ Xxxxx X. Xxxxxxxx | |||
| Xxxxx Xxxxxxxx, its Vice President | ||||
| Property 27 and 29 | XXXXXXX XXXXXXX-XXXX, L.L.C., a Delaware limited liability company | |||
| By: | /s/ Xxxxx X. Xxxxxxxx | |||
| Xxxxx Xxxxxxxx, its Vice President | ||||
| Property 28 | XXXXXXX XXXXXX-ACRA, L.L.C., a Delaware limited liability company | |||
| By: | /s/ Xxxxx X. Xxxxxxxx | |||
| Xxxxx Xxxxxxxx, its Vice President | ||||
| Accepted in Winston-Salem, North Carolina: | ||||
| WACHOVIA BANK, NATIONAL ASSOCIATION | ||||
| By: | /s/ Xxxxx Xxxxxx | |||
| Xxxxx Xxxxxx, Vice President | ||||
| WACHOVIA FINANCIAL SERVICES, INC. | ||||
| By: | /s/ Xxxxx Xxxxxx | |||
| Xxxxx Xxxxxx, Vice President | ||||
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