Second Amended & Restated Credit Agreement

EX-4.4 6 k05171exv4w4.txt SECOND AMENDED & RESTATED CREDIT AGREEMENT EXHIBIT 4.4 SECOND AMENDMENT THIS SECOND AMENDMENT dated as of May 9, 2006 (this "Amendment") is to the Second Amended and Restated Credit Agreement (the "Credit Agreement") dated as of September 8, 2004 among UNITED AUTO GROUP, INC. (the "Company"), various financial institutions (the "Lenders") and DAIMLERCHRYSLER FINANCIAL SERVICES AMERICAS LLC (formerly DaimlerChrysler Services North America LLC), as agent for the Lenders (the "Agent"), as previously amended. Unless otherwise defined herein, terms defined in the Credit Agreement are used herein as defined in the Credit Agreement. WHEREAS, the parties hereto desire to amend the Credit Agreement in certain respects; WHERAS, the parties hereto agree that the terms of this Amendment shall be effective as of March 31, 2006; NOW, THEREFORE, in consideration of the premises and for other good and valuable consideration (the receipt and sufficiency of which are hereby acknowledged), the parties hereto agree as follows: SECTION 1 AMENDMENT. Effective as of March 31, 2006, the definition of "Suretyship Liabilities" in Section 1.1 of the Credit Agreement shall be amended to read in its entirety as follows: Suretyship Liability means any agreement, undertaking or arrangement by which any Person guarantees, endorses or otherwise becomes or is contingently liable upon (by direct or indirect agreement, contingent or otherwise, to provide funds for payment, to supply funds to or\ otherwise to invest in a debtor, or otherwise to assure a creditor against loss) any indebtedness, obligation or other liability of any other Person (other than by endorsements of instruments in the course of collection), or guarantees the payment of dividends or other distributions upon the shares of any other Person. The amount of any Person's obligation in respect of any Suretyship Liability shall (subject to any limitation set forth therein) be deemed to be the principal amount of the debt, obligation or other liability supported thereby and shall in all cases exclude any guarantees by the Company or any Subsidiary of an operating lease of the Company or any Subsidiary. SECTION 2 REPRESENTATIONS AND WARRANTIES. The Company represents and warrants to the Agent and the Lenders that: (a) the representations and warranties made in Section 8 of the Credit Agreement are true and correct on and as of the date hereof with the same effect as if made on and as of the date hereof (except to the extent relating solely to an earlier date, in which case they were true and correct as of such earlier date); (b) no Event of Default or Unmatured Event of Default exists or will result from the execution of this Amendment; (c) no event or circumstance has occurred since the Effective Date that has resulted, or would reasonably be expected to result, in a Material Adverse Effect; (d) the execution and delivery by the Company of this Amendment and the performance by the Company of its obligations under the Credit Agreement as amended hereby (as so amended, the "Amended Credit Agreement") (i) are within the corporate powers of the Company, (ii) have been duly authorized by all necessary corporate action, (iii) have received all necessary approval from any governmental authority and (iv) do not and will not contravene or conflict with any provision of any law, rule or regulation or any order, decree, judgment or award which is binding on the Company or any of its Subsidiaries or of any provision of the certificate of incorporation or bylaws or other organizational documents of the Company or of any agreement, indenture, instrument or other document which is binding on the Company or any of its Subsidiaries; and (e) the Amended Credit Agreement is the legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency or similar laws affecting the enforcement of creditors' rights generally or by equitable principles relating to enforceability. SECTION 3 EFFECTIVENESS. The amendment set forth in Section 1 above shall become effective as of the date hereof when the Agent shall have received (a) a counterpart of this Amendment executed by the Company and the Required Lenders (or, in the case of any party other than the Company from which the Agent has not received a counterpart hereof, facsimile confirmation of the execution of a counterpart hereof by such party) and (b) each of the following documents, each in form and substance satisfactory to the Agent. Any previously existing breach of the Amended Credit Agreement due to existing or previously existing operating leases guaranteed by the Company or any Subsidiary shall be hereby waived. 3.1 Reaffirmation. A counterpart of the Reaffirmation of Loan Documents, substantially in the form of Exhibit A, executed by each Loan Party other than the Company. 3.2 Other Documents. Such other documents as the Agent or any Lender may reasonably request. SECTION 4 MISCELLANEOUS. 4.1 Continuing Effectiveness, etc. As hereby amended, the Credit Agreement shall remain in full force and effect and is hereby ratified and confirmed in all respects. All references in the Credit Agreement, the Notes, each other Loan Document and any similar document to the "Credit Agreement" or similar terms shall refer to the Amended Credit Agreement. 4.2 Counterparts. This Amendment may be executed in any number of counterparts and by the different parties on separate counterparts, and each such counterpart shall be deemed to be an original but all such counterparts shall together constitute one and the same Amendment. 4.3 Expenses. The Company agrees to pay the reasonable costs and expenses of the Agent (including reasonable fees and disbursements of counsel, including, without duplication, the allocable costs of internal legal services and all disbursements of internal legal counsel) in connection with the preparation, execution and delivery of this Amendment. 4.4 Governing Law. This Amendment shall be a contract made under and governed by the laws of the State of New York applicable to contracts made and to be wholly performed within the State of New York. 4.5 Successors and Assigns. This Amendment shall be binding upon the Company, the Lenders and the Agent and their respective successors and assigns, and shall inure to the 2 benefit of the Company, the Lenders and the Agent and the successors and assigns of the Lenders and the Agent. [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK] 3 Delivered as of the day and year first above written. UNITED AUTO GROUP, INC. By: /s/ James R. Davidson ------------------------------------ Title: Executive Vice President - Finance DAIMLERCHRYSLER FINANCIAL SERVICES AMERICAS LLC, as Agent, as Issuing Lender and as a Lender By: /s/ Michele Nowak ------------------------------------ Title: Credit Director of National Accounts TOYOTA MOTOR CREDIT CORPORATION, as a Lender By: /s/ William Shiao ------------------------------------ Title: National Dealer Credit Manager 4 EXHIBIT A FORM OF REAFFIRMATION as of May __, 2006 DaimlerChrysler Financial Services Americas LLC, as Agent and the Lenders party to the Second Amended and Restated Credit Agreement referred to below 27777 Inkster Road Farmington Hills, Michigan 48334 Attn: Michele Nowak RE: REAFFIRMATION OF LOAN DOCUMENTS Ladies and Gentlemen: Please refer to: (a) The Second Amended and Restated Security Agreement dated as of September 8, 2004 (the "Security Agreement") among United Auto Group, Inc. (the "Company"), its subsidiaries and DaimlerChrysler Financial Services Americas LLC (formerly DaimlerChrysler Services North America LLC) in its capacity as Agent (in such capacity, the "Agent"), as previously amended; (b) The Guaranty dated as of October 8, 1999 (the "Guaranty") executed in favor of the Agent and various other parties by all subsidiaries of the Company; and (c) The Pledge Agreement dated as of October 8, 1999 (the "Pledge Agreement") executed by the Company and certain of its subsidiaries. Each of the undersigned acknowledges that the Company, the Lenders and the Agent have executed the First Amendment (the "Amendment") to the Second Amended and Restated Credit Agreement dated as of September 8, 2004 (as amended, supplemented or otherwise modified from time to time, the "Credit Agreement"). Capitalized terms not otherwise defined herein have the meanings given in the Credit Agreement. Each of the undersigned hereby confirms that the Security Agreement, the Guaranty, the Pledge Agreement and each other Loan Document to which such undersigned is a party remains in full force and effect after giving effect to the effectiveness of the Amendment and that, upon such effectiveness, all references in each Loan Document to the "Credit Agreement" shall be references to the Credit Agreement, as amended by the Amendment. A-1 DaimlerChrysler Financial Services Americas LLC, as Agent This letter agreement may be signed in counterparts and by the various parties on separate counterparts. This letter agreement shall be governed by the laws of the State of New York applicable to contracts made and to be performed entirely within such State. ATLANTIC AUTO FUNDING CORPORATION ATLANTIC AUTO SECOND FUNDING CORPORATION ATLANTIC AUTO THIRD FUNDING CORPORATION AUTO MALL PAYROLL SERVICES, INC. BRETT MORGAN CHEVROLET-GEO, INC. CJNS, LLC CLASSIC AUTO GROUP, INC. CLASSIC IMPORTS, INC. CLASSIC MANAGEMENT COMPANY, INC. CLASSIC TURNERSVILLE, INC. COVINGTON PIKE DODGE, INC. DAN YOUNG CHEVROLET, INC. DIFEO PARTNERSHIP, LLC EUROPA AUTO IMPORTS, INC. FLORIDA CHRYSLER-PLYMOUTH, INC. FRN OF TULSA, LLC GENE REED CHEVROLET, INC. GMG MOTORS, INC. GOODSON NORTH, LLC GOODSON PONTIAC GMC, LLC GOODSON SPRING BRANCH, LLC HBL, LLC HT AUTOMOTIVE, LTD. JS IMPORTS, LLC KMPB, LLC KMT/UAG, INC. LANDERS AUTO SALES, LLC LANDERS BUICK-PONTIAC, INC. LANDERS FORD NORTH, INC. LANDERS NISSAN, LLC LANDERS UNITED AUTO GROUP NO. 2, INC. LATE ACQUISITION I, LLC LATE ACQUISITION II, LLC LMNS, LLC LRP, LTD. MICHAEL CHEVROLET-OLDSMOBILE, INC. MOTORCARS ACQUISITION II, LLC MOTORCARS ACQUISITION III, LLC MOTORCARS ACQUISITION IV, LLC A-2 DaimlerChrysler Financial Services Americas LLC, as Agent MOTORCARS ACQUISITION V, LLC MOTORCARS ACQUISITION VI, LLC MOTORCARS ACQUISITION, LLC NISSAN OF NORTH OLMSTED, LLC PALM AUTO PLAZA, LLC PEACHTREE NISSAN, INC. PMRC, LLC REED-LALLIER CHEVROLET, INC. RELENTLESS PURSUIT ENTERPRISES, INC. SA AUTOMOTIVE, LTD. SAU AUTOMOTIVE, LTD. SCOTTSDALE FERRARI, LLC SCOTTSDALE JAGUAR, LTD. SCOTTSDALE MANAGEMENT GROUP, LTD. SIGMA MOTORS INC. SK MOTORS, LTD. SL AUTOMOTIVE, LTD. SOMERSET MOTORS, INC. SUN MOTORS, LTD. THE NEW GRACELAND DODGE, INC. TRI-CITY LEASING, INC. UAG ATLANTA IV MOTORS, INC. UAG BOSTON BENTLEY, LLC UAG BOSTON FMB, LLC UAG BOSTON FML, LLC UAG BOSTON FMM, LLC UAG BOSTON FMR, LLC UAG CAPITOL, INC. UAG CAROLINA, INC. UAG CENTRAL FLORIDA MOTORS, LLC UAG CENTRAL NJ, LLC UAG CENTRAL REGION MANAGEMENT, LLC UAG CERRITOS, LLC UAG CHCC, INC. UAG CHEVROLET, INC. UAG CLASSIC, INC. UAG CLOVIS, INC. UAG CONNECTICUT I, LLC UAG CONNECTICUT, LLC UAG DULUTH, INC. UAG EAST, LLC UAG ESCONDIDO A1, INC. UAG ESCONDIDO H1, INC. UAG ESCONDIDO M1, INC. A-3 DaimlerChrysler Financial Services Americas LLC, as Agent UAG FAIRFIELD CA, LLC UAG FAIRFIELD CM, LLC UAG FAIRFIELD CP, LLC UAG FAYETTEVILLE I, LLC UAG FAYETTEVILLE II, LLC UAG FAYETTEVILLE III, LLC UAG FINANCE COMPANY, INC. UAG GD, LTD. UAG GN, LTD. UAG GP, LTD UAG GRACELAND II, INC. UAG GW, LTD. UAG HOUSTON ACQUISITION, LTD. UAG HUDSON, INC. UAG INTERNATIONAL HOLDINGS, INC. UAG KISSIMMEE MOTORS, INC. UAG LANDERS SPRINGDALE, LLC UAG LOS GATOS, INC. UAG MARIN, INC. UAG MEMPHIS II, INC. UAG MEMPHIS MANAGEMENT, INC. UAG MEMPHIS IV, INC. UAG MENTOR ACQUISITION, LLC UAG MICHIGAN CADILLAC, LLC UAG MICHIGAN H1, LLC UAG MICHIGAN H2, LLC UAG MICHIGAN HOLDINGS, INC. UAG MICHIGAN PONTIAC-GMC, LLC UAG MICHIGAN T1, LLC UAG MICHIGAN TMV, LLC UAG MINNEAPOLIS B1, LLC UAG NANUET I, LLC UAG NANUET II, LLC UAG NEVADA LAND, LLC UAG NORTHEAST BODY SHOP, INC. UAG NORTHEAST, LLC UAG OLDSMOBILE OF INDIANA, LLC UAG PHOENIX VC, LLC UAG REALTY, LLC UAG ROYAL PALM, LLC UAG SAN DIEGO A1, INC. UAG SAN DIEGO H1, INC. UAG SAN DIEGO JA, INC. UAG SOUTHEAST, INC. UAG SPRING, LLC A-4 DaimlerChrysler Financial Services Americas LLC, as Agent UAG STEVENS CREEK II, INC. UAG SUNNYVALE, INC. UAG TEXAS II, INC. UAG TEXAS, LLC UAG TORRANCE, INC. UAG TULSA HOLDINGS, LLC UAG TULSA VC, LLC UAG TURNERSVILLE MOTORS, LLC UAG TURNERSVILLE REALTY, LLC UAG VC II, LLC UAG VK, LLC UAG WEST BAY AM, LLC UAG WEST BAY FM, LLC UAG WEST BAY IA, LLC UAG WEST BAY IAU, LLC UAG WEST BAY IB, LLC UAG WEST BAY II, LLC UAG WEST BAY IL, LLC UAG WEST BAY IM, LLC UAG WEST BAY IP, LLC UAG WEST BAY IV, LLC UAG WEST BAY IW, LLC UAG WEST, LLC UAG YOUNG II, INC. UAG-CARIBBEAN, INC. UNITED AUTO GROUP, INC. UNITED AUTO LICENSING, LLC UNITED AUTOCARE PRODUCTS, LLC UNITED AUTO SCOTTSDALE PROPERTY HOLDINGS, LLC UNITED NISSAN, INC., A GEORGIA CORPORATION UNITED NISSAN, INC., A TENNESSEE CORPORATION UNITED RANCH AUTOMOTIVE, LLC UNITEDAUTO DODGE OF SHREVEPORT, INC. UNITEDAUTO FIFTH FUNDING INC. UNITEDAUTO FINANCE INC. UNITEDAUTO FOURTH FUNDING INC. WEST PALM AUTO MALL, INC. WEST PALM NISSAN, LLC WESTBURY SUPERSTORE, LTD. WTA MOTORS, LTD. YOUNG MANAGEMENT GROUP, INC. A-5 DaimlerChrysler Financial Services Americas LLC, as Agent UAG TULSA JLM, LLC UNITED FORD SOUTH, LLC UNITED FORD NORTH, LLC UNITED FORD BROKEN ARROW, LLC DEALER ACCESSORIES, LLC UAG WEST BAY IN, LLC UAG SAN DIEGO AU, INC. UAG SAN DIEGO MANAGEMENT, INC. By: ------------------------------------ Title: --------------------------------- A-6 DaimlerChrysler Financial Services Americas LLC, as Agent CLASSIC MOTOR SALES, LLC CLASSIC ENTERPRISES, LLC By: United Auto Group, Inc. Member By: ------------------------------------ Title: Executive Vice President - Finance CLASSIC NISSAN OF TURNERSVILLE, LLC By: Classic Management Company, Inc. Member By: ------------------------------------ Title: Assistant Treasurer DAN YOUNG MOTORS, LLC By: DAN YOUNG CHEVROLET, INC. Member By: ------------------------------------ Title: Assistant Treasurer SHANNON AUTOMOTIVE, LTD. By: UAG TEXAS, LLC a general partner By: ------------------------------------ Title: Treasurer A-7 DaimlerChrysler Financial Services Americas LLC, as Agent UAG CITRUS MOTORS, LLC By: United Auto Group, Inc. Member By: ------------------------------------ Title: Executive Vice President - Finance YOUNG AUTOMOTIVE HOLDINGS, LLC UAG YOUNG AUTOMOTIVE GROUP, LLC D. YOUNG CHEVROLET, LLC By: United Auto Group, Inc., Member By: ------------------------------------ Title: Executive Vice President - Finance LANDERS FORD, INC NATIONAL CITY FORD, INC. CENTRAL FORD CENTER, INC. UAG/PFS, INC. By: ------------------------------------ Title: Assistant Treasurer COUNTY AUTO GROUP PARTNERSHIP DANBURY AUTO PARTNERSHIP DIFEO CHRYSLER PLYMOUTH JEEP EAGLE PARTNERSHIP DIFEO HYUNDAI PARTNERSHIP DIFEO LEASING PARTNERSHIP DIFEO NISSAN PARTNERSHIP DIFEO TENAFLY PARTNERSHIP HUDSON MOTOR PARTNERSHIP A-8 DaimlerChrysler Financial Services Americas LLC, as Agent OCT PARTNERSHIP SOMERSET MOTORS PARTNERSHIP By: DIFEO PARTNERSHIP, INC. a general partner By: ------------------------------------ Title: Assistant Treasurer A-9 DaimlerChrysler Financial Services Americas LLC, as Agent ACKNOWLEDGED AND AGREED as of the date first written above DAIMLERCHRYSLER FINANCIAL SERVICES AMERICAS, LLC, as Agent By: --------------------------------- Title: ------------------------------ A-10