Exhibit 10.4
FORM OF FOURTH AMENDMENT dated as of
January 1, 2002 (this "Amendment"), to the THIRD
AMENDED AND RESTATED LIMITED LIABILITY COMPANY
AGREEMENT dated as of February 1, 2000 (the "Restated
LLC Agreement"), of ▇▇▇▇▇▇ AUTOMOTIVE GROUP L.L.C.
(formerly known as ▇▇▇▇▇▇ Automotive Oregon L.L.C.),
a Delaware limited liability company (the "Company").
Capitalized terms used herein have the respective
meanings set forth in the Restated LLC Agreement.
WHEREAS pursuant to Section 13.02 of the Restated LLC Agreement, the
Board of Directors may amend or modify the Restated LLC Agreement at any time
and from time to time without the consent of any Member in order to effect any
issuance of Interests (or options to acquire Interests) or any adjustment to the
Percentage Interests pursuant to Article IV thereof;
WHEREAS the Company has hired ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ("▇▇▇▇▇▇") and ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇ ("▇▇▇▇▇▇▇▇") as senior management employees and agreed to sell
Interests in the Company to such employees (the "Management Interests");
WHEREAS the Company has agreed to sell Interests in the Company to
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ("Umbriano") and ▇▇▇▇▇ ▇▇▇▇▇ ("▇▇▇▇▇") in exchange for their
respective minority interests in certain majority owned subsidiaries of ▇▇▇▇▇▇
Automotive Jacksonville, L.P. (the "Jacksonville Interests");
WHEREAS ▇▇▇▇▇▇ ▇▇▇▇▇ ("▇▇▇▇▇"), a member of the Company, has sold all
of his Interests in the Company to ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ("▇▇▇▇▇▇▇▇") (the "▇▇▇▇▇▇▇▇
Transfer");
WHEREAS the Company has agreed to issue a Carried Interest to ▇▇▇▇▇▇
▇▇▇▇▇▇ ("▇▇▇▇▇▇") of 0.48 percent (the "▇▇▇▇▇▇ Carried Interest");
WHEREAS, ▇▇▇▇▇▇ Automotive Holdings L.L.C. (formerly known as ▇▇▇▇▇▇
Automotive Group L.L.C.), a Delaware limited liability company ("AAH"), has
agreed to transfer to ▇▇▇▇▇▇ a portion of its Interest representing a percentage
interest in the Company of 0.08% effective as of September 1, 2001 (the "▇▇▇▇▇▇
Transfer").
NOW, THEREFORE, the Board of Directors deems it necessary and
appropriate to amend the Restated LLC Agreement as follows in order to give
effect to the issuance of the Management Interests, the Jacksonville Interests,
the ▇▇▇▇▇▇▇▇ Transfer, the ▇▇▇▇▇▇ Carried Interest and the ▇▇▇▇▇▇ Transfer:
ARTICLE I
AMENDMENTS
SECTION 1.01. AMENDMENTS TO SCHEDULE II. (a) Schedule II is hereby
amended, effective as of September 1, 2001, to reflect the transfer of Interests
from AAH to ▇▇▇▇▇▇ as follows:
Percentage
Effective Initial Interest as
Date of Capital of Issuance
Member Issuance Account Date
------ -------- ------- ----
▇▇▇▇▇▇
▇▇▇▇▇▇ September 1, 2001 $308,310 0.08%
A revised Schedule II, reflecting the ▇▇▇▇▇▇ Transfer effective as of September
1, 2001, is set forth on Exhibit I to this Amendment.
(b) Schedule II is hereby amended, effective as of December 31, 2001,
to reflect the issuance of Interests to Umbriano and ▇▇▇▇▇ and the transfer of
Interests from ▇▇▇▇▇ to ▇▇▇▇▇▇▇▇ as follows:
Percentage
Effective Initial Interest as
Date of Capital of Issuance
Member Issuance Account Date
------ -------- ------- ----
▇▇▇▇▇▇ July 1, 2001 $110,765 0.0287%
Umbriano
▇▇▇▇▇ ▇▇▇▇▇ July 1, 2001 $366,765 0.0952%
▇▇▇▇▇ December 31, 2001 Capital Account Interest
▇▇▇▇▇▇▇▇ owned by ▇▇▇▇▇ owned by
as of December ▇▇▇▇▇
31, 2001 as of
December 31,
2001
A revised Schedule II reflecting the issuances of the Jacksonville Interests an
the ▇▇▇▇▇▇▇▇ Transfer effective as of December 31, 2001 is set forth on Exhibit
II to this Amendment.
(c) Schedule II is hereby amended, effective as of January 1, 2002, to
reflect the issuance of Interests to ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇ as follows:
Percentage
Effective Initial Interest as
Date of Capital of Issuance
Member Issuance Account Date
------ -------- ------- ----
▇▇▇▇▇▇ ▇. January 1, 2002 $ 500,000 0.1295%
▇▇▇▇▇▇
▇▇▇▇▇▇ G. January 1, 2002 $ 300,000 0.0777%
▇▇▇▇▇▇▇▇
A revised Schedule II, reflecting issuances of the Management Interests
effective as of January 1, 2002, is set forth on Exhibit III to this Amendment.
(d) Each of Gilman, McCollum, Dennis, Umbriano, ▇▇▇▇▇ and ▇▇▇▇▇▇▇▇
shall be admitted as a "Member" of the Company for all purposes of the Restated
LLC Agreement. Each of Umbriano, ▇▇▇▇▇ and ▇▇▇▇▇▇▇▇ shall be designated as
a "Dealer" and a "Dealer Member". Each of ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ shall be
designated as a "Manager" for all purposes of the Restated LLC Agreement.
SECTION 1.02. AMENDMENTS TO ARTICLE I. Section 1.01 is hereby amended,
effective as of September 1, 2001, as follows:
(a) The following new definitions are hereby added:
"▇▇▇▇▇▇" means ▇▇▇▇▇▇ ▇▇▇▇▇▇, as an individual.
"▇▇▇▇▇▇ PERCENTAGE" means 0.48%.
(b) The definition of "Residual Percentage" is hereby amended and
restated in its entirety to read as follows:
"RESIDUAL PERCENTAGE" means 100%, less the ▇▇▇▇▇▇ Percentage and the
▇▇▇▇▇▇▇▇ Percentage."
SECTION 1.03. AMENDMENTS TO ARTICLE VI. Section 6.01(b)(ii) is hereby
amended and restated, effective as of September 1, 2001, in its entirety to read
as follows:
"(ii) SECOND, the balance of such distribution shall be apportioned to
each Member in accordance with their respective Percentage Interests
and:
(A) the amount so apportioned to ▇▇▇▇▇▇ shall be distributed
to ▇▇▇▇▇▇, the amount so apportioned to ▇▇▇▇▇▇▇▇ shall be distributed
to ▇▇▇▇▇▇▇▇; and
(B) the amount so apportioned to any Member other than ▇▇▇▇▇▇
and ▇▇▇▇▇▇▇▇ shall be distributed to ▇▇▇▇▇▇ in accordance with the
▇▇▇▇▇▇ Percentage, to ▇▇▇▇▇▇▇▇ in accordance with the ▇▇▇▇▇▇▇▇
Percentage and to such Member in accordance with the Residual
Percentage."
ARTICLE II
MISCELLANEOUS
SECTION 2.01. RESTATED LLC AGREEMENT. Except as amended hereby, the
provisions of the Restated LLC Agreement shall remain in full force and effect
and be unaffected hereby.
SECTION 2.02. ENTIRE AGREEMENT. This Amendment and the Restated LLC
Agreement set forth the entire understanding among the parties relating to the
subject matter contained herein and merges all prior discussions among them.
SECTION 2.03. SEVERABILITY. If any one or more of the provisions
contained in this Amendment or in any document executed in connection herewith
shall be invalid, illegal or unenforceable in any respect under any applicable
law, the validity, legality and enforceability of the remaining provisions
contained herein shall not in any way be affected or impaired; PROVIDED,
HOWEVER, that in such case the Board of Directors shall endeavor to amend or
modify this Amendment (subject to the terms, conditions and requirements set
forth in Section 13.02 of the Restated LLC Agreement) to achieve to the extent
reasonably practicable the purpose of the invalid provision.
SECTION 2.04. GOVERNING LAW. THIS AMENDMENT AND ALL ACTIONS
CONTEMPLATED HEREBY SHALL BE GOVERNED BY AND CONSTRUED AND ENFORCED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF
DELAWARE (WITHOUT REGARD TO CONFLICT OF
LAWS PRINCIPLES).
IN WITNESS HEREOF, this Amendment has been be duly adopted by the Board
of Directors of the Company as of the day and year first written above.
▇▇▇▇▇▇ AUTOMOTIVE GROUP L.L.C.
by
---------------------------
Name:
Title:
SCHEDULE II TO THE RESTATED LLC
AGREEMENT AS OF SEPTEMBER 1, 2001
SCHEDULE II TO THE RESTATED LLC
AGREEMENT AS OF DECEMBER 31, 2001
EXHIBIT II
SCHEDULE II TO THE RESTATED LLC
AGREEMENT AS OF JANUARY 1, 2002