EXHIBIT 10.32.1
FIRST AMENDMENT TO REVOLVING CREDIT AGREEMENT
THIS FIRST AMENDMENT TO REVOLVING CREDIT AGREEMENT dated as of
August 7, 1997 (this "AMENDMENT"), by and between Cross-Continent Auto
Retailers, Inc., a Delaware corporation (the "PARENT"), the other Borrowers
identified on the signature pages hereto (collectively, the "BORROWERS"), the
financial institutions listed on the signature pages hereto (the "BANKS"),
and 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 ("TCB"). For good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
SECTION 1. DEFINITIONS. Capitalized terms used herein and not
otherwise defined herein shall have the meanings set forth in that certain
Revolving Credit Agreement dated as of June 26, 1997 by and among the
Borrowers, the Banks and the Agent (as amended, the "CREDIT AGREEMENT").
SECTION 2. AMENDMENTS TO THE CREDIT AGREEMENT. Subject to
Section 5 hereof, the Credit Agreement is hereby amended as follows:
(a) Section 9.6 is hereby amended by inserting the following sentence
at the end thereof:
"Upon the occurrence and during the continuance of
a Default or Event of Default, any expenses incurred by
the Agent or any Bank pursuant to this Section 9.6
shall be for the account of the Borrowers."
(b) Section 13.3 is hereby amended by inserting the following
sentence after the first sentence thereof:
"Upon the occurrence and during the continuance of
a Default or Event of Default, the Borrowers shall also
reimburse the Banks for any such type of fees and
expenses incurred by any Bank."
(c) "Exhibit A" to the Credit Agreement is hereby amended by
including therein in proper alphabetical order the following
definition:
"FRANCHISE AGREEMENTS" shall mean the dealer sales
and service agreement(s) entered into by and between
the manufacturer(s) and the Borrower(s), as amended
from time to time.
(d) "Exhibit E" to the Credit Agreement is hereby amended in its
entirety to provide as set forth on "Exhibit E" attached hereto.
(e) "Exhibit F" to the Credit Agreement is hereby amended in its
entirety to provide as set forth on "Exhibit F" attached hereto.
SECTION 4. COMMITMENTS.
(a) Subject to Section 5 hereof, from the date hereof the financial
institutions listed on the signature pages hereto are the "Banks"
with the respective Commitments listed opposite their signatures.
(b) All notices in connection with the Credit Agreement shall be
given in accordance with SECTION 13.4 of the Credit Agreement.
The address of the Banks for notices hereunder and thereunder,
together with payment instructions for amounts to be paid by the
Agent to each Bank under the Credit Agreement, shall be initially
as set forth on the signature pages hereof.
(c) Commitment Fees accrued to the date hereof are for the account of
TCB and such fees accruing from and including the date hereof are
for the account of the Banks, based upon their Pro Rata
Percentage of the aggregate Commitment.
(d) All payments of principal of and accrued interest on the Loans
and fees are to be made by the Borrowers to the Agent; the Agent
shall divide such payments among the Banks as their interests may
appear, with all interest accruing on the Loans and fees of the
Assignor prior to the date hereof to belong to TCB. Each Bank
hereby agrees that if it receives any amount from the Borrowers
under the Loan Documents which is for the account of the other
party hereto, it shall receive the same for the account of such
other party to the extent of such other party's interest therein
and shall promptly pay the same to such other party.
SECTION 5. CONDITIONS TO EFFECTIVENESS. This Amendment shall
become effective as of August 7, 1997 upon the satisfaction of the following
conditions precedent:
(a) the Agent shall receive original execution copies of this
Amendment, executed and delivered by the parties hereto;
(b) the Borrowers shall have executed and delivered to each Bank a
Note in the respective amount of such Bank's Commitment;
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(c) each Bank (other than TCB) shall deliver to TCB, in immediately
available funds, such Bank's Pro Rata Percentage of the
Commitment of the outstanding principal balance of the Loans; and
(d) to the extent set forth in SECTION 13.11(c) of the Credit
Agreement, this Amendment is conditioned upon the payment of the
assignment fees to the Agent.
SECTION 6. 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 7. 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 8. 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 9. 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 9 shall survive the termination of
the Credit Agreement and the repayment of the Loans.
SECTION 10. 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.
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SECTION 11. 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.
SECTION 12. 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 13. 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 August 7,
1997.
CROSS-CONTINENT AUTO
RETAILERS, INC.
By:
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Chief Financial Officer
QUALITY NISSAN, INC.
By:
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Chief Financial Officer
MIDWAY CHEVROLET, INC.
By:
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Chief Financial Officer
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PLAINS CHEVROLET, INC.
By:
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Chief Financial Officer
WESTGATE CHEVROLET, INC.
By:
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Chief Financial Officer
WORKING MAN'S CREDIT PLAN, INC.
By:
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Chief Financial Officer
ALLIED 2000 COLLISION CENTER, INC.
By:
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Chief Financial Officer
CROSS-COUNTRY DODGE, INC.
By:
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Chief Financial Officer
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C-CAR AUTO WHOLESALERS, INC.
By:
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Chief Financial Officer
▇▇▇▇▇▇▇ TOYOTA, INC.
By:
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Chief Financial Officer
TOYOTA WEST SALES & SERVICE, INC.
By:
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Chief Financial Officer
SAHARA IMPORTS, INC.
By:
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Chief Financial Officer
SAHARA NISSAN, INC.
By:
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Chief Financial Officer
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COMMITMENT: TEXAS COMMERCE BANK
NATIONAL ASSOCIATION, as a
$22,500,000 Bank and as Agent
By:
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Name:
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Title:
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$7,500,000.00 AMARILLO NATIONAL BANK
By:
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Name:
-------------------------------------------
Title:
------------------------------------------
Address:
4th and ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
Telefax: (▇▇▇) ▇▇▇-▇▇▇▇
Send payments to:
Amarillo National Bank
ABA#: 111 300 958
For Credit To: Commercial Loan # ▇▇▇▇▇▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
Reference: Cross-Continent Auto Retailers, Inc.
$5,000,000.00 THE BANK OF TOKYO-MITSUBISHI, LTD.,
HOUSTON AGENCY
By:
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Name:
-------------------------------------------
Title:
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Address:
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇
Telefax: (▇▇▇) ▇▇▇-▇▇▇▇
Send payments to:
The Bank of Tokyo-Mitsubishi, Ltd.,
New York Branch
▇▇▇ ▇▇▇▇▇ ▇▇▇# ▇▇▇▇
BTM Houston CHIPS UID# 251015
via FED ABA# ▇▇▇▇▇▇▇▇▇
For Credit To: The Bank of Tokyo-Mitsubishi,
Ltd., Houston Agency A/C # 30001710.
$5,000,000.00 U.S. BANK
By:
---------------------------------------------
Name:
-------------------------------------------
Title:
------------------------------------------
Address:
▇▇▇▇▇ ▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Telefax: (▇▇▇) ▇▇▇-▇▇▇▇
Send payments to:
U.S. Bank
ABA#: 5418-0010 Acct. # 4183 1111079
For Credit To: Cross-Continent Auto
Retailers, Inc.
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (▇▇▇) ▇▇▇-▇▇▇▇
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EXHIBIT "E"
ASSIGNMENT AND ACCEPTANCE AGREEMENT
This Assignment and Acceptance Agreement (this "Agreement") dated as
of ___________, 199___, among _________________ (the "Assignor");
______________________ (the "Assignee"); and TEXAS COMMERCE BANK NATIONAL
ASSOCIATION, as Agent under the Revolving Credit Agreement (herein referred
to as the "Agent");
W I T N E S S E T H:
WHEREAS, the Agent, the financial institutions then or thereafter
party thereto (collectively, the "Banks") and the Borrowers have executed and
delivered that certain Revolving Credit Agreement (as amended, modified,
supplemented and restated, the "Credit Agreement") dated as of June 26, 1997;
WHEREAS, the Assignor has agreed to make Loans to the Borrowers and
participate in Letters of Credit issued for the account of the Borrowers in
accordance with the terms of the Credit Agreement, with the maximum aggregate
amount of such Loans and Letter of Credit participations made by Assignor
outstanding not to exceed the Assignor's Pro Rata Percentage of the
Commitment; and
WHEREAS, the Assignor proposes to sell and assign to the Assignee,
and the Assignee proposes to buy and accept from the Assignor, an interest
(the "Assigned Interest") in all rights and obligations of the Assignor under
the Loan Documents with the effect that, effective upon such sale and
assignment, the Assignee will have a Commitment of $________________, and a
Pro Rata Percentage of the Commitment of __________%;
NOW, THEREFORE, in consideration of the foregoing and the mutual
agreements contained herein, the parties hereto agree as follows:
SECTION 1. DEFINITIONS. Any term defined in the Credit Agreement
and used in this Agreement shall have the meaning ascribed to it in the
Credit Agreement.
SECTION 2. ASSIGNMENTS. The Assignor hereby assigns and sells,
without recourse or warranty except as specifically set forth herein, to the
Assignee the Assigned Interest in all rights and obligations of the Assignor
under the Loan Documents. The Assignee hereby purchases and accepts from the
Assignor all of such rights and obligations of the Assignor, including the
corresponding portion of the principal amount of the Loans and the principal
amount of Letter of Credit participations made by the Assignor outstanding on
the date hereof. As of the date hereof, and after giving effect to the sale
and assignment of the Assigned Interest to the Assignee, the Assignee's
outstanding principal balance of such Loans and Letter of Credit
participations is
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$__________. Subject to the execution and delivery hereof by the Assignor,
the Assignee, and the Agent, on the date hereof (a) the Assignee shall
succeed to the rights and be obligated to perform the obligations of a Bank
under the Loan Documents with a Pro Rata Percentage of the Commitment of
____________%, and shall be considered a Bank for all purposes; (b) the
Assignee shall deliver to the Assignor, in immediately available funds, the
Assignee's Pro Rata Percentage of the Commitment of the outstanding principal
balance of the Loans, and (c) the Pro Rata Percentage of the Commitment of
the Assignor as of the date hereof shall be reduced by the Pro Rata
Percentage of the Commitment acquired by the Assignee and the Assignor shall
be released from its obligations under the Loan Documents which have been so
assigned to and accepted by the Assignor.
SECTION 3. PAYMENTS. Commitment Fees and Letter of Credit Fees
accrued to the date hereof with respect to the Assignor's Pro Rata Percentage
of the Commitments pursuant to SECTIONS 5.1 AND 5.3 of the Credit Agreement
are for the account of the Assignor and such fees accruing from and including
the date hereof with respect to the Assigned Interest are for the account of
the Assignee. All payments of principal of and accrued interest on the Loans
are to be made by the Borrowers to the Agent; the Agent shall divide such
payments among the Banks as their interests may appear, with all interest
accruing on the Loans of the Assignor prior to the date hereof to belong to
the Assignor. Each of the Assignor and the Assignee hereby agrees that if it
receives any amount from the Borrowers under the Loan Documents which is for
the account of the other party hereto, it shall receive the same for the
account of such other party to the extent of such other party's interest
therein and shall promptly pay the same to such other party. The rights of
the Assignor and the Assignee under this Section 3 are in addition to other
rights and remedies which the Assignor, the Assignee or any other Bank may
have.
SECTION 4. CONSENT OF THE AGENT; PROCEDURE. To the extent set forth
in SECTION 13.11(c) of the Credit Agreement, this Agreement is conditioned
upon the consent of the Agent and the Parent and the payment of an assignment
fee to the Agent. The execution of this Agreement by the Agent and the
Parent is evidence of this consent and payment of the assignment fee.
Pursuant to SECTION 13.11(f) of the Credit Agreement, the Assignor agrees to
deliver its current Notes to the Parent, marked "Replaced" or its equivalent
for the purposes therein provided.
SECTION 5. THE ASSIGNOR. The Assignor (a) represents and warrants
to the Assignee that it is the legal and beneficial owner of the interest
being assigned by the Assignor to the Assignee hereunder and (b) makes no
representation or warranty and assumes no responsibility with respect to (1)
any statements, warranties or representations made in or in connection with
any Loan Document or the execution, legality, validity, enforceability,
genuineness, sufficiency or value of any Loan Document and (2) the financial
condition of the Borrowers or the performance or observance by any Borrower
of any of its obligations under any Loan Document.
SECTION 6. THE ASSIGNEE. The Assignee (a) confirms that it has
received a copy of the Credit Agreement, together with copies of the
financial statements referred to in the Credit Agreement and such other
documents and information as it has deemed appropriate to make its own credit
analysis and decision to enter into this Agreement; (b) agrees that it will,
independently and
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without reliance upon the Agent, the Assignor or any other Bank and based on
such documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action
under the Loan Documents; (c) appoints and authorizes the Agent to take such
action as agent on behalf of the Assignee and to exercise such powers under
the Loan Documents as are delegated to the Agent by the terms thereof,
together with such powers as are reasonably incidental thereto; and (d)
agrees that it will perform in accordance with their terms all of the
obligations which by the terms of the Loan Documents are required to be
performed by it as a Bank.
SECTION 7. NOTICES AND PAYMENT INSTRUCTIONS. All notices in
connection herewith shall be given in accordance with SECTION 13.4 of the
Credit Agreement. The address of the Assignee for notices hereunder and
thereunder, together with payment instructions for amounts to be paid to the
Assignee under the Credit Agreement, shall be initially as set forth on the
signature pages hereof.
SECTION 8. MISCELLANEOUS. This Agreement (a) shall be binding upon
and inure to the benefit of the Assignor, the Assignee, all of the Banks
(whether now or hereafter party to the Credit Agreement), and the Agent, and
their respective successors, assigns, receivers and trustees; (b) may be
modified or amended only by a writing signed by each of the parties hereto;
(c) shall be governed by and construed in accordance with the laws of the
State of Texas and the United States of America; (d) may be executed in
several counterparts, and by the parties hereto on separate counterparts, and
each counterpart, when so executed and delivered, shall constitute an
original agreement, and all such separate counterparts shall constitute but
one and the same agreement; (e) embodies the entire agreement and
understanding between the parties with respect to the subject matter hereof
and supersedes all prior agreements, consents and understandings relating to
such subject matter, and (f) is a Loan Document. The headings herein shall
be accorded no significance in interpreting this Agreement.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed and delivered by their duly authorized officers as of the date first
above written.
ASSIGNOR:
[ ]
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By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
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ASSIGNEE:
[ ]
---------------------
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Address:
----------------------------------------
----------------------------------------
----------------------------------------
Attention:
-----------------------------
Telefax:
-------------------------------
Send payments to:
----------------------------------------
----------------------------------------
ABA#
-----------------------------------
For Credit To:
-------------------------
Attention:
-----------------------------
Reference:
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FOR PURPOSES OF SECTION 4 ONLY:
TEXAS COMMERCE BANK
NATIONAL ASSOCIATION, as Agent
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
CROSS-CONTINENT AUTO RETAILERS, INC.
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
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EXHIBIT "F"
LETTER OF CREDIT REQUEST
_______________, 19__
Texas Commerce Bank National Association, as Agent
▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: _______________
Gentlemen:
Reference is made to that certain Revolving Credit Agreement dated
as of June 26, 1997 (as amended, the "Credit Agreement") executed by and
among Texas Commerce Bank National Association, individually and as Agent,
the other banks or financial institutions which are or may become a party
thereto in accordance with the terms thereof (collectively, the "Banks"), and
the Borrowers. Capitalized terms which are used but not defined herein shall
have the respective meanings assigned to such terms in the Credit Agreement.
The Parent (on behalf of the Borrowers) hereby requests the issuance
of a Letter of Credit under the Credit Agreement, and in that connection sets
forth below the information relating to such Letter of Credit ("Proposed
Letter of Credit") as required by Section 2.4 of the Credit Agreement. As
more fully set forth in the Application for Irrevocable Stand-by Letter of
Credit attached hereto as EXHIBIT I, the Proposed Letter of Credit must be
issued:
(a) on or before _______________, 19__(1);
(b) for the benefit of __________________;
(c) in the amount of $_____________(2);
(d) having an expiry date of __________, 19__(3); and which is
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(1) Which must be not later than 30 days prior to the scheduled Maturity Date
and not less than five (5) Business Days after notice is given to the
Agent.;
(2) Which must not be less than $50,000.;
(3) Which shall not be a date later than 12 months from the issuance
date.
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(e) subject to the conditions set forth in the Application attached
hereto.
OR
The Parent hereby refers to Letter of Credit Number _____ (the
"Expiring Letter of Credit") which has an existing expiry date of __________.
The Parent (on behalf of the Borrowers) hereby requests that [the expiry date of
the Expiring Letter of Credit be extended to __________3]. [The Banks permit
the expiry date of the Expiring Letter of Credit to be extended to
_____________3].
The Parent hereby certifies that after giving effect to the
[issuance of the Proposed Letter of Credit] or
[the extension of the Expiring Letter of Credit]:
(a) the Stated Amount of such Letter of Credit shall not be greater
than an amount which when added to the Letter of Credit Outstandings at
such time and the aggregate principal amount of all Loans then outstanding
(after giving effect to the principal amount of all Loans repaid and all
Unpaid Drawings reimbursed prior to or concurrently with the issuance of
such Letter of Credit) would exceed the Commitments of all the Banks (after
giving effect to any reductions to the Commitments of all the Banks on such
date); and
(b) the Stated Amount of such Letter of Credit shall not be greater
than an amount which when added to the Letter of Credit Outstandings at
such time (after giving effect to all Unpaid Drawings reimbursed prior to
or concurrently with the issuance of such Letter of Credit), would exceed
the Letter of Credit Limit.
The Parent hereby further certifies that:
(a) on the date hereof all applicable conditions to the [issuance of
the Proposed Letter of Credit] [extension of the Expiring Letter of Credit]
set forth in the Credit Agreement have been satisfied and that the
[Proposed Letter of Credit] [the Expiring Letter of Credit as extended]
complies with the terms of the Credit Agreement;
(b) as of the date hereof and as a result of the [issuance of the
Proposed Letter of Credit] [the extension of the Expiring Letter of
Credit], there does not and will not exist any Default or Event of Default;
(c) the representations and warranties of the Borrowers contained in
the Loan Documents (other than those representations and warranties limited
by their terms to a specific date) are true and correct in all material
respects as of the date hereof and shall be true and correct upon the
[issuance of the Proposed Letter of Credit] [the extension of the Expiring
Letter of Credit], with the same force and effect as though made on and as
of the date hereof and thereof; and
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(d) no event has occurred since the date of the most recent financial
statements provided to the Agent dated as of __________, 199_ that has
caused a Material Adverse Effect.
Upon the [issuance of the Proposed Letter of Credit]
[extension of the Expiring Letter of Credit], the Parent will be deemed to
have recertified the foregoing on such issuance date or extension date, as
the case may be.
EXECUTED AND DELIVERED this _____ day of __________, 199_.
CROSS-CONTINENT AUTO RETAILERS, INC.
By:
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Name:
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Title:
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