Exhibit 10.50
LIMITED WAIVER
This Limited Waiver (this “
Agreement ”) dated as of March 12, 2009 is made
by and among ASBURY AUTOMOTIVE GROUP, INC., a Delaware corporation
(the “ Borrower ”), BANK OF AMERICA, N.A., in
its capacity as administrative agent for the Lenders (as defined in
the Credit Agreement referred to below) (in such capacity, the
“ Administrative Agent ”), and as Swing Line
Lender and L/C Issuer, each of the Lenders under such Credit
Agreement signatory hereto, and each of the Subsidiary Guarantors
(as defined in the Credit Agreement) signatory hereto.
W I T N E S S E T
H :
WHEREAS , the Borrower, Bank of America, N.A., as
Administrative Agent, Swing Line Lender and L/C Issuer and the
Lenders have entered into that certain Credit Agreement dated as of
September 26, 2008 (as hereby amended and as from time to time
further amended, modified, supplemented, restated, or amended and
restated, the “ Credit Agreement ”; capitalized
terms used in this Amendment and not otherwise defined herein shall
have the respective meanings given thereto in the Credit
Agreement), pursuant to which the Lenders have made available to
the Borrower a revolving credit facility, including a letter of
credit facility and a swing line facility; and
WHEREAS , each of the Subsidiary Guarantors has entered
into a Subsidiary Guaranty pursuant to which it has guaranteed the
payment and performance of certain or all of the obligations of the
Borrower under the Credit Agreement and the other Loan Documents,
and the Borrower and the Subsidiary Guarantors have entered into
various Security Instruments to secure their respective obligations
and liabilities in respect the Loan Documents; and
WHEREAS , the Borrower has advised the Administrative
Agent and the Lenders that Deloitte & Touche LLP will
include a “going concern” qualification (the “
Going Concern Qualification ”) in its audit opinion
delivered with respect to the financial statements of the Borrower
and its Subsidiaries for the fiscal year ended December 31,
2008 (the “ 2008 Audited Financial Statements
”); and
WHEREAS , the Borrower’s delivery to the
Administrative Agent of 2008 Audited Financial Statements
accompanied by an auditor’s report containing the Going
Concern Qualification would violate Section 6.05(a) of
the Credit Agreement and may result in a Default or Event of
Default under Section 8.01(d) of the Credit Agreement;
and
WHEREAS , the Borrower has requested that the Lenders
waive any Default or Event of Default arising from such violation
of Section 6.05(a) , and the Administrative Agent and
Lenders signatory hereto are willing to make such waiver on the
terms and conditions contained in this Agreement;
NOW, THEREFORE
, in consideration of the premises
and further valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the parties hereto agree as
follows:
1. Waivers . Subject to the
terms and conditions set forth herein, the Lenders signatory hereto
hereby waive any Default or Event of Default arising solely from
the Borrower’s delivery of an audit report containing the
Going Concern Qualification with respect to the 2008 Audited
Financial Statements.
The waiver set forth in this
Section 1 (the “ Default Waiver ”)
is limited to the extent specifically set forth above and no other
terms, covenants or provisions of the Credit Agreement or any other
Loan Document are intended to be effected hereby. The Default
Waiver is granted only with respect to the Going Concern
Qualification relating to the 2008 Audited Financial Statements,
and shall not apply to any financial statements for any other
fiscal year, any other violation of Section 6.05 of the Credit
Agreement, or any actual or prospective default or
violation of any other provision of the Loan
Agreement or any other Loan Document. The Default Waiver shall not
in any manner create a course of dealing or otherwise impair the
future ability of the Administrative Agent or the Lenders to
declare a Default or Event of Default under or otherwise enforce
the terms of the Credit Agreement or any other Loan Document with
respect to any matter other than those specifically and expressly
waived in the Default Waiver.
2. Conditions Precedent . The
effectiveness of this Agreement, and the effectiveness of the
waiver provided in Paragraph 1 , are subject to the
satisfaction of the following conditions precedent:
(a) The Administrative Agent shall
have received each of the following documents or instruments in
form and substance reasonably acceptable to the Administrative
Agent:
(i) counterparts of this Agreement,
duly executed by the Borrower, each Subsidiary Guarantor, and such
Lenders as are necessary to constitute the Required
Lenders;
(ii) an irrevocable notice pursuant
to Section 2.06 of the Credit Agreement, providing for
the reduction of the Aggregate Commitments from $200,000,000 to
$175,000,000 on a date (the “ Reduction Effectiveness
Date ”) that is 16 days after the date of this Agreement
(such reduction to be allocated to each Lender according to its
Applicable Percentage on the Reduction Effectiveness Date, as set
forth in Section 2.06 ); and
(iii) such other documents,
instruments, opinions, certifications, undertakings, further
assurances and other matters as the Administrative Agent shall
reasonably request; and
(b) all fees and expenses payable to
the Administrative Agent and the Lenders (including the fees and
expenses of counsel to the Administrative Agent) accrued to date
shall have been paid in full to the extent invoiced prior to the
date hereof, but without prejudice to the later payment of accrued
fees and expenses not so invoiced.
The continuing effectiveness of the
waiver provided in Paragraph 1 is subject to the further
condition that that the reduction in the Aggregate Commitments
contemplated by Clause 2(a)(ii) above shall occur on the
Reduction Effectiveness Date
3. Consent of the Subsidiary
Guarantors . Each Subsidiary Guarantor hereby consents,
acknowledges and agrees to the waiver set forth herein and hereby
confirms and ratifies in all respects the Subsidiary Guaranty to
which such Subsidiary Guarantor is a party (including without
limitation the continuation of such Subsidiary Guarantor’s
payment and performance obligations thereunder upon and after the
effectiveness of this Agreement and the waiver contemplated hereby)
and the enforceability of such Subsidiary Guaranty against such
Subsidiary Guarantor in accordance with its terms.
4. Representations and
Warranties . In order to induce the Lenders party hereto to
enter into this Agreement, each Loan Party represents and warrants
to the Administrative Agent and such Lenders as follows:
(a) The representations and
warranties made by or with respect to each Loan Party in Article
V of the Credit Agreement and in each of the other Loan
Documents to which such Loan Party is a party are true and correct
on and as of the date hereof, except to the extent that such
representations and warranties expressly relate to an earlier date
in which case they are true and correct as of such earlier
date;
(b) The Persons appearing as
Subsidiary Guarantors on the signature pages to this Agreement
constitute all Persons who are required to be Subsidiary Guarantors
pursuant to the terms of the Credit Agreement and the other Loan
Documents, including without limitation all Persons who became
Subsidiaries or were otherwise required to become Subsidiary
Guarantors after the Closing Date, and each such Person has
executed and delivered a Subsidiary Guaranty; and
2
(c) After giving effect to the
waiver contained in this Agreement, no Default or Event of Default
has occurred and is continuing either immediately prior to or
immediately after the effectiveness of this Agreement.
5. Entire Agreement . This
Agreement, together with all the Loan Documents (collectively, the
“ Relevant Documents ”), sets forth the entire
understanding and agreement of the parties hereto in relation to
the subject matter hereof and supersedes any prior negotiations and
agreements among the parties relative to such subject matter. No
promise, condition, representation or warranty, express or implied,
not herein set forth shall bind any party hereto, and not one of
them has relied on any such promise, condition, representation or
warranty. Each of the parties hereto acknowledges that, except as
otherwise expressly stated in the Relevant Documents, no
representations, warranties or commitments, express or implied,
have been made by any party to the other. None of the terms or
conditions of this Agreement may be changed, modified, waived or
canceled orally or otherwise, except as permitted pursuant to
Section 10.01 of the Credit Agreement.
6. Full Force and Effect of
Agreement . After giving effect to this Agreement and the
waiver contained herein, the Credit Agreement and all other Loan
Documents are hereby confirmed and ratified in all respects by each
party hereto and shall be and remain in full force and effect
according to their respective terms.
7. Counterparts . This
Agreement may be executed in any number of counterparts, each of
which shall be deemed an original as against any party whose
signature appears thereon, and all of which shall together
constitute one and the same instrument. Delivery of an executed
counterpart of a signature page of this Agreement by telecopy or
electronic delivery (including by .pdf) shall be effective as
delivery of a manually executed counterpart of this
Agreement.
8. Governing Law . This
Agreement shall in all respects be governed by, and construed in
accordance with, the laws of the State of New York applicable to
contracts executed and to be performed entirely within such State,
and shall be further subject to the provisions of
Section 10.14 of the Credit Agreement.
9. Enforceability . Should
any one or more of the provisions of this Agreement be determined
to be illegal or unenforceable a
