SECOND AMENDMENT
to
SEVENTH AMENDED AND RESTATED
REVOLVING CREDIT AGREEMENT
THIS SECOND AMENDMENT (this
“ Amendment ”) TO SEVENTH AMENDED AND
RESTATED REVOLVING CREDIT AGREEMENT dated effective
March 19, 2007 (as amended by the First Amendment to Seventh
Amended and Restated Revolving Credit Agreement dated effective
January 16, 2008, the “ Credit Agreement
”), which Amendment is dated effective as of January 1,
2009 (the “ Effective Date ”), is entered
into among GROUP 1 AUTOMOTIVE, INC. , a Delaware corporation
(the “ Company ”), each of the
Subsidiaries of the Company listed on the signature pages hereof
and such other Subsidiaries of the Company which hereafter shall
become parties to the Credit Agreement (the Company and the
Subsidiaries are sometimes referred to herein as, individually, a
“ Borrower ,” and collectively, the
“ Borrowers ”), the lenders listed on the
signature pages hereof (the “ Lenders ”),
JPMORGAN CHASE BANK, N.A. , as Administrative Agent for the
Lenders (in such capacity together with any successor, the “
Agent ”), COMERICA BANK , as Floor Plan
Agent for the Lenders (in such capacity, together with any
successor, the “ Floor Plan Agent ”), and
BANK OF AMERICA, N.A. , as Syndication Agent (in such
capacity, together with any successor the “ Syndication
Agent ” and together with the Agent and the Floor
Plan Agent, the “ Agents ”).
R E C I T A L
S:
The Company, each of the other
Borrowers, the Agents and the Lenders are parties to the Credit
Agreement, pursuant to which the Lenders agreed to make loans to
and extensions of credit on behalf of the Borrowers; and
The Company, the Borrowers, the
Agents and the Lenders desire to amend the Credit Agreement as
hereinafter provided.
NOW, THEREFORE, in consideration of
the premises and the mutual covenants herein contained, the parties
hereto agree as follows:
ARTICLE I.
DEFINITIONS
Section 1.1 Terms Defined
Above. As used in this Amendment, each of the terms defined in
the opening paragraph shall have the meaning assigned to such terms
therein.
Section 1.2 Terms Defined in
Credit Agreement . Each term defined in the Credit Agreement
and used herein without definition shall have the meaning assigned
to such term in the Credit Agreement, unless expressly provided to
the contrary.
Section 1.3 Other
Definitional Provisions .
(a) The words
“hereby”, “herein”,
“hereinafter”, “hereof”,
“hereto” and “hereunder” when used in this
Amendment shall refer to this Amendment as a whole and not to any
particular Article, Section, subsection or provision of this
Amendment.
(b) Section, subsection and
Exhibit references herein are to such Sections, subsections and
Exhibits to this Amendment unless otherwise specified.
ARTICLE II.
AMENDMENT TO CREDIT AGREEMENT
The Company, each of the Borrowers,
the Agents and the Lenders agree that the Credit Agreement is
hereby amended, effective as of the Effective Date, in the
following particulars.
Section 2.1 Amendment to
Section 1.1 . Section 1.1 of the Credit Agreement is
hereby amended to restate the definitions of “Interest
Expense”, “Consolidated EBITDA” and
“EBITDA” in their entirety as follows:
“‘ Interest Expense ’ means, for any
Person, determined on a consolidated basis, the sum of all interest
on Indebtedness paid or payable (including the portion of rents
payable under Capital Leases allocable to interest, but excluding
interest allowances from Manufacturers).”
“‘ Consolidated EBITDA’ means, for any
period for which the amount thereof is to be determined,
Consolidated Net Income for such period, plus, to the extent
deducted in the determination of Consolidated Net Income and
without duplication with items included in the adjustments to Net
Income under GAAP in the determination of Consolidated Net Income,
(a) provisions for income taxes, (b) interest expense
(calculated in accordance with GAAP), (c) depreciation and
amortization expense, and (d) other non-cash income or
charges.”
“‘ EBTIDA ’ means, for any Person, for any
period, Net Income for such period, plus, to the extent deducted in
the determination of Net Income and without duplication with items
included in the adjustments under GAAP to Net Income in the
determination of net income, (a) provisions for income taxes,
(b) interest expense (calculated in accordance with GAAP),
(c) depreciation and amortization expense, and (d) other
non-cash income or charges.”
Section 2.2 Amendment to
Section 1.2 . Section 1.2 of the Credit Agreement is
hereby amended to be restated in its entirety as follows:
“Section 1.2. Accounting Terms .
(a) Except as otherwise herein specifically provided, each
accounting term used herein shall have the meaning given to it
under GAAP.
(b) If at any time any change in GAAP would affect the
computation of any financial ratio or requirement set forth in any
Loan Document, and either the Company or the Required Lenders shall
so request, the Agent, the Lenders and the Company shall negotiate
in good faith to amend such ratio or requirement to preserve the
original intent thereof in light of such change in GAAP (subject to
the approval of the Required Lenders); provided that, until so
amended, (i) such ratio or requirement shall continue to be
computed in accordance with GAAP prior to such change therein and
(ii) the Company shall provide to the Agent and the Lenders
such calculations, financial statements and other documents
required under this Agreement or as reasonably requested hereunder
setting forth a reconciliation between calculations of such ratio
or requirement made before and after giving effect to such change
in GAAP. Notwithstanding the foregoing, with respect to the changes
in GAAP as they apply to Accounting Principles Bulletin 14-1, the
Company shall (i) calculate the financial covenants set forth
in Sections 10.11 , 10.13 , 10.14 and
10.15 without giving effect to such changes and
(ii) provide to the Agent and the Lenders such calculations,
financial statements and other documents as reasonably requested
hereunder setting forth a reconciliation between calculations of
such financial covenants made before and after giving effect to
such changes in GAAP.”
ARTICLE III.
CONDITIONS
The effectiveness of this Amendment
is subject to the satisfaction of the following conditions
precedent:
Section 3.1 Loan
Documents . The Agent shall have received counterparts of this
Amendment executed and delivered by a duly authorized officer of
the Company and each of the Borrowers and the Required Lenders.
Section 3.2 Representations
and Warranties . Except as affected by the transactions
contemplated in the Credit Agreement and this Amendment, each of
the representations and warranties made by the Company and the
other Borrowers in or pursuant to the Loan Documents shall be true
and correct in all material respects as of the Effective Date, as
if made on and as of such date, except to the extent that such
representations and warranties are limited to an earlier date or
period in which case they shall be limited to such earlier date or
period.
Section 3.3 Other Instruments
or Documents . The Agent shall receive such other instruments
or documents as it may reasonably request.
Section 3.4 Payment of Fees
and Expenses . The Agent shall have received payment of all its
fees and expenses in connection with this Amendment, including,
without limitation, any legal expenses billed as of the time of
closing.
ARTICLE IV. MISCELLANEOUS
Section 4.1 Adoption,
Ratification and Confirmation of Credit Agreement . The
Company, each of the Borrowers, the Agents and the Lenders do
hereby adopt, ratify and confirm the Credit Agreement, as amended
hereby, and the Security Documents, and acknowledges and agrees
that the Credit Agreement, as amended hereby, and each of the
Security Documents, are and remain in full force and effect.
Section 4.2 Successors and
Assigns . This Amendment shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and
assigns permitted pursuant to the Credit Agreement.
Section 4.3 Counterparts
. This Amendment may be executed by one or more of the parties
hereto in any number of separate counterparts, and may be delivered
in original or facsimile form, and all of such counterparts taken
together shall be deemed to constitute one and the same instrument
and shall be enforceable as of the Effective Date upon the
execution of one or more counterparts hereof by the Company, the
other Borrowers, the Agents and the Required Lenders. In this
regard, each of the parties hereto acknowledges that a counterpart
of this Amendment containing a set of counterpart execution pages
reflecting the execution of each party hereto shall be sufficient
to reflect the execution of this Amendment by each necessary party
hereto and shall constitute one instrument.
Section 4.4 Number and
Gender . Whenever the context requires, reference herein made
to the single number shall be understood to include the plural; and
likewise, the plural shall be understood to include the singular.
Words denoting sex shall be construed to include the masculine,
feminine and neuter, when such construction is appropriate; and
specific enumeration shall not exclude the general but shall be
construed as cumulative. Definitions of terms defined in the
singular or plural shall be equally applicable to the plural or
singular, as the case may be, unless otherwise indicated.
Section 4.5 Invalidity .
In the event that any one or more of the provisions contained in
this Amendment shall for any reason be held invalid, illegal or
unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provision of this
Amendment.
Section 4.6 Titles of
Articles, Sections and Subsections . All titles or headings to
Articles, Sections, subsections or other divisions of this
Amendment or the exhibits hereto, if any, are only for the
convenience of the parties and shall not be construed to have any
effect or meaning with respect to the other content of such
Articles, Sections, subsections, other divisions or exhibits, such
other content being controlling as the agreement among the parties
hereto.
Section 4.7 Release and
Indemnity .
(a) The Company and each of the
other Borrowers do hereby release and indemnify the Agents and each
Lender and each Affiliate thereof and their respective directors,
officers, employees and agents from, and release and hold each of
them harmless from any and all losses, liabilities, claims or
damages (including reasonable legal fees and expenses) to which any
of them may become subject, insofar as such losses, liabilities,
claims or damages arise out of or result from the Loan Documents or
the transactions contemplated thereby (including any threatened
investigation or proceeding), or the actions or inactions of any
Person in regard thereto, including any Person hereby released, and
the Company and each of the other Borrowers shall reimburse each
Lender and each Affiliate thereof and their respective directors,
officers, employees and agents, upon demand, for any expenses
(including legal fees) reasonably incurred in connection with any
investigation or proceeding involving such matters (the “
Indemnified Obligations ”). Without prejudice
to the survival of any other obligations of the Company and the
other Borrowers hereunder and under the other Loan Documents, such
release and indemnity shall survive the termination of the Credit
Agreement or this Amendment and the other Loan Documents, the
payment of the Obligations, or the assignment of the Notes.
(b) Without limiting any
provision of this Amendment, it is the express intention of the
parties hereto that each Person to be indemnified hereunder shall
be indemnified and held harmless against any and all Indemnified
Obligations arising out of or resulting from the ordinary sole or
contributory negligence of such Person or imposed upon said party
under any theory of strict liability. Without prejudice to the
survival of any other obligations of the Borrowers hereunder and
under the other Loan Documents, the obligations of the Borrowers
under this Section shall survive the termination of this Amendment,
the Credit Agreement and the other Loan Documents and the payment
of t
