Exhibit 10.49
LIMITED WAIVER
This LIMITED WAIVER (this
“ Agreement ”), effective as of March 12,
2009, is entered into by and among Asbury Automotive Group,
Inc. (the “ Borrower ”), each of the
subsidiaries of the Borrower listed on the signature pages hereof
(the “ Guarantors ”), each of the Lenders listed
on the signature pages hereof (the “ Lenders ”),
JPMorgan Chase Bank, N.A. , as Administrative Agent for the
Lenders (the “ Agent ”).
PRELIMINARY STATEMENT
WHEREAS , the Borrower, the Lenders, and the Agent,
entered into that certain Revolving Credit Agreement dated as of
October 29, 2008, (as amended from time to time, the “
Credit Agreement ”), under the terms of which such
Lenders agreed to make available to the Borrower a revolving credit
commitment not to exceed at any time $75,000,000.00. All
capitalized terms used in this Agreement and not otherwise defined
herein shall have the meanings ascribed to such terms in the Credit
Agreement; and
WHEREAS , each of the Guarantors has entered into a
Guaranty Agreement 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 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 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 Agent of
2008 Audited Financial Statements accompanied by an auditor’s
report containing the Going Concern Qualification would violate
Section 5.5(a) of the Credit Agreement and may result
in a Default or Event of Default under Section 7.1(e)
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 5.5(a) , and the 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 5.5(a) 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
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.
1
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 Agent shall have received
each of the following documents or instruments in form and
substance reasonably acceptable to the Agent:
(i) counterparts of this Agreement,
duly executed by the Borrower, each Guarantor, and the
Lenders;
(ii) an irrevocable notice pursuant
to Section 2.9 of the Credit Agreement, providing for
the reduction of the Commitments from $75,000,000 to $50,000,000 on
a date (the “ Reduction Effectiveness Date ”)
that is 1 Business Day after the date of this Agreement (such
reduction to be allocated to each Lender according to its Pro Rata
Share of Commitments on the Reduction Effectiveness Date, as set
forth in Section 2.9 ); and
(iii) such other documents,
instruments, opinions, certifications, undertakings, further
assurances and other matters as the Agent shall reasonably request;
and
(b) all fees and expenses payable to
the Agent and the Lenders (including the fees and expenses of
counsel to the 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 the reduction in the Commitments contemplated by
Clause 2(a)(ii) above shall occur on the Reduction
Effectiveness Date.
3. Ratification . Each
Guarantor hereby consents, acknowledges and agrees to the waiver
set forth herein. The Borrower and each of the Guarantors hereby
ratify all of its Obligations under the Credit Agreement and each
of the Loan Documents to which it is a party, and agrees and
acknowledges that the Credit Agreement and each of the Loan
Documents to which it is a party are and shall continue to be in
full force and effect as amended and modified by this Agreement.
Nothing in this Agreement extinguishes, novates or releases any
right, claim, lien, security interest or entitlement of any of the
Lenders or the Agent created by or contained in any of such
documents nor is the Borrower nor any Guarantor released from any
covenant, warranty or obligation created by or contained herein or
therein.
4. Representations and
Warranties . The Borrower and each of the Guarantors hereby
represents and warrants to the Agent and the Lenders that
(a) this Agreement has been duly executed and delivered on
behalf of the Borrower and each of the Guarantors, (b) this
Agreement constitutes a valid and legally binding agreement
enforceable against the Borrower and each of the Guarantors in
accordance with its terms, subject to applicable bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium or
other laws affecting creditors’ rights generally and subject
to general principles of equity, regardless of whether considered
in a proceeding in equity or at law, (c) the representations
and warranties made by it in the Credit Agreement and the Loan
Documents to which it is a party are true and correct on and as of
the date hereof in all material respects as though made 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, (d) after giving
effect to this Agreement, no Default or Event of Default exists
under the Credit Agreement or under any Loan Document, (e) the
Persons appearing as Guarantors on the signature pages to this
Agreement constitute all Persons who are required to be Guarantors
pursuant to the terms of the Credit Agreement and the other Loan
Documents, including without limitation all Persons who became
Subsidiaries or we
