EXHIBIT 10.19.2
FIFTH AMENDMENT TO LOAN
AGREEMENT
This Fifth Amendment to Loan
Agreement (this “Agreement”) dated as of
December 12, 2008, is entered into among Lithia Motors, Inc.,
an Oregon corporation (“Borrower”); the lenders which
are from time to time parties to the Loan Agreement (each a
“Lender” and any two or more “Lenders”);
and U.S. Bank National Association, as agent for the Lenders (in
such capacity, “Agent”).
R E C I T A L S
A. Borrower, the Lenders and Agent
have entered into a Loan Agreement dated as of August 31,
2006, which has been amended by amendments dated as of
June 29, 2007, February 13,
2008, March 17, 2008 and August 15, 2008
(collectively, the “Loan Agreement”).
B. The parties wish to modify the
terms and conditions of the Loan Agreement, as set forth
below.
For valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the
parties agree as follows:
1. Amendments to Loan
Agreement.
1.1 Changed Definition. The
following defined term in Section 1.1 of the Loan Agreement is
deleted and replaced with the following:
“Total Revolving Loan
Commitment” means (a) (i) $200,000,000 through
September 29, 2008, (ii) $175,000,000 from
September 30, 2008 through December 30, 2008, and
(iii) $150,000,000 on and after December 31, 2008, minus
(b) in any case, the aggregate amount of all required
reductions in the Total Revolving Loan Commitment required by
Section 12.1.2 hereof.
1.2 Approved Sales.
Section 12.1.2 of the Loan Agreement is deleted and replaced
with the following:
12.1.2 Notwithstanding the
provisions of Section 12.1.1, Borrower or any Subsidiary may
sell all or substantially all of the assets (including Equity
Interests) of any Dealership or other Subsidiary (or of any
business unit or franchise of a Dealership or other Subsidiary) for
not less than fair market value, if no Default shall exist
immediately prior to or upon giving effect to any such sale,
and
(a) the sale is included on the
Schedule of Approved Sales attached hereto (which shall replace the
Schedule of Approved Sales attached to the Fourth Amendment to Loan
Agreement dated August 15, 2008) (each such sale, a
“Pre-approved Sale”) and either (i) the total of
the Allocated Amounts for all Pre-approved Sales occurring on or
after July 1,
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2008 does not exceed $150,000,000 or
(ii) if, after giving effect to the applicable Pre-approved
Sale, the total of the Allocated Amounts for all Pre-approved Sales
exceeds $150,000,000, the Total Revolving Loan Commitment shall be
automatically reduced on the first Business Day of the month
following the closing of such Pre-approved Sale by an amount equal
to 100% of the net proceeds of such Pre-approved Sale (determined
in accordance with GAAP; provided, however that with respect to
sales of real property any debt secured by such real property and
repaid with the sales proceeds shall be deducted in determining net
proceeds), or
(b) Required Lenders have consented
in writing to the sale and Borrower has complied with all terms and
conditions of such consent, it being acknowledged that Required
Lenders have consented to the sales of facilities in Issaquah,
Washington and Burlingame, California which occurred in August,
2008.
As used herein, the “Allocated
Amount” for the sale of any asset listed on the Schedule of
Approved Sales is the amount set forth for such sale under
“Total Net Assets” in the Schedule of Approved Sales
(Original) section of such schedule or under “Total
Assets” in the Assets for Sale with Lender Approval or Assets
for Sale Pending Lender Approval sections of such
schedule.
12.1.3 Notwithstanding the
provisions of Sections 12.1.1 and 12.1.2, any Subsidiary that no
longer has assets (or that has assets with an aggregate book value
less than $25,000) may discontinue operations and dissolve or
liquidate unless such action would constitute a Material Adverse
Effect or any Default shall exist immediately prior to or upon
giving effect thereto.
12.1.4 Borrower shall provide to
Agent such information and supporting documentation from Borrower
or any other Person as Agent or any Lender requests to determine
the net proceeds of any Pre-approved Sale if such determination is
required by Section 12.1.2 (a) (ii). If such information
is not provided to Agent within fifteen (15) Business Days
after the closing of any Pre-approved Sale (or if earlier, the
first Business Day of the month following the closing of the sale),
the Total Revolving Loan Commitment shall be automatically reduced
on the date set forth in Section 12.1.2(a)(ii) by the greater
of (a) the amount determined by Agent as the net proceeds of
such Pre-approved Sale or (b) an amount equal to (i) the
Allocated Amount for such Pre-approved Sale minus the Total
Liabilities for such Pre-approved Sale (as shown on the Schedule of
Approved Sales), or (ii) if greater, the Estimated Net
Proceeds as set forth on the Schedule of Approved Sales; provided,
however, the Revolving Loan Commitment shall thereafter be adjusted
when Borrower provides the information required by this
Section 12.1.4.
2. Conditions Precedent . The
effectiveness of this Agreement is subject to satisfaction of each
of the following conditions:
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(a) Agent has received executed
originals of this Agreement and such other Loan Documents as Agent
requires and Borrower and each Guarantor have provided such
information and satisfied such requirements as Agent reasonably
requires.
(b) Immediately upon giving effect
to the amendments set forth in Section 1 of this Agreement, no
Default shall have occurred and be continuing under the Loan
Agreement.
(c) All representations and
warranties in the Loan Agreement and in this Agreement are true and
correct as of the date of this Agreement.
3. Defined Terms. Capitalized
terms not otherwise defined herein shall have the meanings given to
such terms in the Loan Agreement.
4. Reaffirmation; Release. By
signing this Agreement or the attached Acknowledgment:
(a) Borrower and each Guarantor
(each, a “Loan Party”) affirm that the representations
and warranties in each of the existing Loan Documents are and will
be true, correct and complete as of the date hereof, and agree that
(i) except as amended previously or in connection herewith,
each Loan Document is and shall remain valid and enforceable in
accordance with its terms and (ii) such Borrower or Guarantor
has no claims, defenses, setoffs, counterclaims or claims for
recoupment against Agent, the Lenders, or the indebtedness and
obligations represented by the Notes, Guaranties, Security
Documents and other Loan Documents.
(b) Each Loan Party hereby releases,
acquits, and forever discharges Agent, each Lender, their parent
corporations, affiliates, subsidiaries, employees, successors,
agents, assigns, representatives, and attorneys (collectively,
“Lenders’ Agents”), and each of them, of and from
any and all liability, claims, demands, damages, causes of action,
defenses, counterclaims, setoffs, or claims for recoupment of
whatsoever nature,
