MODIFICATION NUMBER THREE TO MASTER LOAN AGREEMENT

THIS MODIFICATION NUMBER THREE TO MASTER LOAN AGRE EMENT (the “Agreement”), dated July 2, 2009, effective as of June 30, 2009 (the “Effective Date”) between NP FLM L.L.C., a Delaware limited liability company, Premier NSN L.L.C., a Delaware limited liability company, Asbury Atlanta Jaguar L.L.C., a Delaware limited liability company, Asbury Atlanta LEX L.L.C., a Delaware limited liability company, CN Motors, LTD., a Florida limited partnership, C&O PROPERTIES, LTD., a Florida limited partnership, CFP Motors, LTD., a Florida limited partnership, Avenues Motors, Ltd., a Florida limited partnership, AF Motors, L.L.C., a Delaware limited liability company, ALM Motors, L.L.C., a Delaware limited liability company, Asbury-Deland Imports, L.L.C., a Delaware limited liability company, Coggin Chevrolet L.L.C., a Delaware limited liability company, Coggin Cars L.L.C., a Delaware limited liability company, CH Motors, Ltd., a Florida limited partnership, HFP Motors L.L.C., a Delaware limited liability company, Crown GPG L.L.C., a Delaware lim ited liability company, CROWN CHV L.L.C., a Delaware limited liability company, Crown GHO L.L.C., a Delaware limited liability company, Crown GDO L.L.C., a Delaware limited liability company, Crown RIB L.L.C., a Delaware limited liability company, Crown Motorcar Company L.L.C., a Delaware limited liability company, Asbury Automotive Atlanta L.L.C., a Delaware limited liability company, McDavid Irving-Hon, L.L.C., a Delaware limited liability company, McDavid Plano-Acra, L.L.C., a Delaware limited liability company, McDavid Austin-Acra, L.L.C., a Delaware limited liability company, McDavid Houston-Hon, L.L.C., a Delaware limited liability company, McDavid Houston-Niss, L.L.C., a Delaware limited liability company and ASBURY AUTOMOTIVE TEXAS REAL ESTATE HOLDINGS L.L.C., a Delaware limited liability company (each referred to herein individually and collectively as “Borrower&rd quo;), and WACHOVIA BANK, NATIONAL ASSOCIATION, a national banking association (together with its successors and assigns, “WBNA”) and WACHOVIA FINANCIAL SERVICES, INC., a North Carolina corporation (together with its successors and assigns, “WFSI”) (WBNA and WFSI referred to herein individually and collectively as “Lender”).

 

A.Lender is the holder of certain Notes, as modified from time to time, executed and delivered by Borrower and certain other loan documents, including without limitation, a Master Loan Agreement, dated as of June 4, 2008, as modified from time to time (the “Loan Agreement”).

B.Borrower and Lender have agreed to modify the terms of the Loan Agreement as set forth herein.

 

In consideration of Lender's continued extension of credit and the agreements contained herein, the parties agree as follows:

 

DEFINITIONS. Terms used in this Agreement which are capitalized and not otherwise defined herein shall have the meanings ascribed to such terms in the Loan Agreement.

 

1.Section 1.1 “Defined Terms” of the Loan Agreement is hereby amended as follows:

(a)The definition of “Bridge Loan Maturity Date” is hereby deleted in its entirety and the following new definition of “Bridge Loan Maturity Date” is hereby substituted in lieu thereof:

“'Bridge Loan Maturity Date' means September 4, 2009.”

(b)The definition of “Collateral” is hereby deleted in its entirety and the following new definition of “Col lateral” is hereby substituted in lieu thereof:

“'Collateral' means the Property, all Fixtures of the Property and all Personal Property Collateral pledged by a Borrower to Lender as security for Borrower's Loan.”

(c)The definition of “Loan Documents” is hereby deleted in its entirety and the following new definition of “Loan Documents” is hereby substituted in lieu thereof:

“'Loan Documents' means this Agreement, each Mortgage, Security Agreement, Note, Guaranty Agreement, UCC-1 financing statements and all other documents and instruments now or hereafter evidencing, describing, guaranteeing or securing the Obligations contemplated hereby or delivered in connection herewith, as they may be modified, amended, extended, renewed or substituted from time to time, but does not include Swap Agreements.”

(d)The following new definition of “Personal Property Collateral” i s hereby added:

“'Personal Property Collateral' means the personal property pledged by a Borrower to Lender as security for Borrower's Loan pursuant to a Security Agreement.”

(e)The following new definition of “Security Agreement” is hereby added:

“'Security Agreement' means each security agreement or similar instrument now or hereafter executed by Borrower or other Person granting Lender a security interest in any Personal Property Collateral to secure the Obligations.”

2.Section 2.1.3 of the Loan Agreement is hereby deleted in its entirety and the following new Section 2.1.3 is hereby substituted in lieu thereof:

“2.1.3    Bridge Loan Collateral. On the Closing Date, each Bridge Loan Borrower shall execute and deliver to WBNA a Mortgage as to each Bridge Loan Borrower's Property set forth on Exhibit A-3 attached hereto and made a part hereof (each, a 'Bridge Loan Property'). On July 2, 2009, each Bridge Loan Borrower shall execute and deliver to WBNA a Security Agreement, effective as of June 30, 2009, as to each Bridge Loan Borrower's Personal Property Collateral.”

3.Section 4.8 of the Loan Agreement is hereby deleted in its entirety and the following new Section 4.8 is hereby substituted in lieu thereof:

4.Section 6.5 of the Loan Agreement is hereby amended by adding the phrase “or permit the change

of location of any Personal Property Collateral” at the end thereof.

5.The following new Section 7.3 is hereby added to the Loan Agreement:

7.3    Deposit Accounts. Commencing as of June 30, 2009 and at all times thereafter that its respective Bridge Loan is outstanding, each of Crown CHV L.L.C. and Asbury Automotive Texas Real Estate Holdings L.L.C. shall maintain a Deposit Account with WBNA with a balance equal to 100% of the principal amount outstanding of such Bridge Loan Borrower's Bridge Loan.”

PAYM ENT OF FEES. In connection with the modification of the Loans, Borrower shall pay contemporaneously with the execution hereof all of Lender's fees and costs in connection with this modification, including, without limitation, the Lender's reasonable attorneys' fees and expenses.

ACKNOWLEDGMENTS AND REPRESENTATIONS. Borrower acknowledges and represents that the Note, the Loan Agreement and other Loan Documents, as amended hereby, are in full force and effect without any defense, counterclaim, right or claim of set-off; that, after giving effect to this Agreement, no Event of Default under the Loan Documents has occurred, all representations and warranties contained in the Loan Documents are true and correct as of the Effective Date, al l necessary action to authorize the execution and delivery of this Agreement has been taken; and this Agreement is a modification of an existing obligation and is not a novation.

COLLATERAL. Borrower acknowledges and confirms that there have been no changes in the ownership of any Collateral since the Collateral was originally pledged; Borrower acknowledges and confirms that the Lender has existing, valid first priority security interests and liens in the Collateral; and that such security interests and liens shall secure Borrower's Obligations, including any modification of the Note or Loan Agreement, if any, and all future modifications, extensions, renewals and/or replacements of the Loan Documents.

MISCELLANEOUS. This Agreement shall be construed in accordance with and governed by the laws of the Jurisdiction as originally provided in the Loan Documents, without reference to the Jurisdiction's conflicts of law principles. This Agreement and the other Loan Documents constitute the sole agreement of the parties with respect to the subject matter thereof and supersede all oral negotiations and prior writings with respect to the subject matter thereof. No amendment of this Agreement, and no waiver of any one or more of the provisions hereof shall be effective unless set forth in writing and signed by the parties hereto. The illegality, unenforceability or inconsistency of any provision of this Agreement shall not in any way affect or impair the legality, enforceability or consistency of the remaining provisions of this Agreement or the other Loan Documents. This Agreement and t he other Loan Documents are intended to be consistent. However, in the event of any inconsistencies among this Agreement and any of the Loan Documents, the terms of this Agreement, and then the Loan Agreement, shall control. This Agreement may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which when so executed and delivered shall be deemed an original and all of which when taken together shall constitute but one and the same instrument. Any signature delivered by a party by facsimile transmission shall be deemed to be an original signature hereto. LIMITATION ON LIABILITY; WAIVER OF PUNITIVE DAMAGES. EACH OF THE PARTIES HERETO, INCLUDING LENDER BY ACCEPTANCE HEREOF, AGREES THAT IN ANY JUDICIAL, MEDIATION OR ARBITRATION PROCEEDING OR ANY CLAIM OR CONTROVERSY BETWEEN OR AMONG THEM (A “DISPUTE”) THAT MAY A RISE OUT OF OR BE IN ANY WAY CONNECTED WITH THIS AGREEMENT, THE LOAN DOCUMENTS OR ANY OTHER AGREEMENT OR DOCUMENT BETWEEN OR AMONG THEM OR THE OBLIGATIONS EVIDENCED HEREBY OR RELATED HERETO, IN NO EVENT SHALL ANY PARTY HAVE A REMEDY OF, OR BE LIABLE TO THE OTHER FOR, (A) INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES OR (B) PUNITIVE OR EXEMPLARY DAMAGES. EACH OF THE PARTIES HEREBY

EXPRESSLY WAIVES ANY RIGHT OR CLAIM TO PUNITIVE OR EXEMPLARY DAMAGES THEY MAY HAVE OR WHICH MAY ARISE IN THE FUTURE IN CONNECTION WITH ANY SUCH PROCEEDIN G, CLAIM OR CONTROVERSY, WHETHER THE DISPUTE IS RESOLVED BY ARBITRATION, MEDIATION, JUDICIALLY OR OTHERWISE. Final Agreement. This Agreement and the other Loan Documents represent the final agreement between the parties and may not be contradicted by evidence of prior, contemporaneous or subsequent oral agreements of the parties. There are no unwritten oral agreements between the parties.

ARBITRATION. Upon demand of any party hereto, whether made before or after institution of any judicial proceeding, any claim or controversy arising out of or relating to the Loan Documents between parties hereto shall be resolved by binding arbitration conducted under and g overned by the Commercial Financial Disputes Arbitration Rules (the “Arbitration Rules”) of the American Arbitration Association (the “AAA”) and the Federal Arbitration Act. Disputes may include, without limitation, tort claims, counterclaims, a dispute as to whether a matter is subject to arbitration, or claims arising from documents executed in the future, but shall specifically exclude claims brought as or converted to class actions. A judgment upon the award may be entered in any court having jurisdiction. Notwithstanding the foregoing, this arbitration provision does not apply to disputes under or related to swap agreements. Special Rules. All arbitration hearings shall be conducted in Charlotte, North Carolina. A hearing shall begin within 90 days of demand for arbitration and all hearings shall conclude within 120 days of demand for arbitration . These time limitations may not be extended unless a party shows cause for extension and then for no more than a total of 60 days. The expedited procedures set forth in Rule 51 et seq. of the Arbitration Rules shall be applicable to claims of less than $1,000,000.00. Arbitrators shall be licensed attorneys selected from the Commercial Financial Dispute Arbitration Panel of the AAA. The parties do not waive applicable Federal or state substantive law except as provided herein. Preservation and Limitation of Remedies. Notwithstanding the preceding binding arbitration provisions, the parties agree to preserve, without diminution, certain remedies that any party may exercise before or after an arbitration proceeding is brought. The partie s shall have the right to proceed in any court of proper jurisdiction or by self-help to exercise or prosecute the following remedies, as applicable: (a) all rights to foreclose against any real or personal property or other security by exercising a power of sale or under applicable law by judicial foreclosure including a proceeding to confirm the sale; (b) all rights of self-help including peaceful occupation of real property and collection of rents, set-off, and peaceful possession of personal property; (c) obtaining provisional or ancillary remedies including injunctive relief, sequestration, garnishment, attachment, appointment of receiver and filing an involuntary bankruptcy proceeding; and (d) when applicable, a judgment by confession of judgment. Any claim or controversy with regard to any party's entitlement to such remedies is a Dispute. Waiver of Jury Trial. THE PART IES ACKNOWLEDGE THAT BY AGREEING TO BINDING ARBITRATION THEY HAVE IRREVOCABLY WAIVED ANY RIGHT THEY MAY HAVE TO JURY TRIAL WITH REGARD TO A DISPUTE.

IN WITNESS WHEREOF, the parties hereto have caused this Modification Number Three to Master Loan Agreement to be duly executed under seal as of the day and year first above written.