EXHIBIT 10.1
AMENDMENT TO LOAN AGREEMENT
This amendment
(“Amendment”) dated as of December 19, 2012, is entered into among Lithia Motors, Inc., an Oregon corporation (the
“Company”), each of the Subsidiaries of the Company listed on the signature pages of this Amendment (together with
the Company, each a “Borrower” and any two or more “Borrowers”), the lenders which are from time to time
parties to the Loan Agreement (each a “Lender” and any two or more, “Lenders”); and U.S. Bank National
Association, as Agent for the Lenders (in such capacity, “Agent”).
RECITALS:
A.
Borrower, certain of its Subsidiaries, the Lenders and Agent have entered into a Loan Agreement
dated as of April 17, 2012 (the “Loan Agreement”).
B.
Pursuant to Section 6.12 of the Loan Agreement, the Company has requested an increase in the
Aggregate New Vehicle Floorplan Commitment and Aggregate Revolving Loan Commitment. The Company has also requested a decrease in
the Aggregate Used Vehicle Floorplan Commitment.
C.
The parties have agreed to modify the Commitments as sets forth below.
For valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
1.
Definitions. The definitions of the following defined
terms in Section 1.1 of the Loan Agreement are deleted and replaced with the following defined terms:
“Aggregate
New Vehicle Floorplan Commitment” means an amount equal to $575,000,000.00.
“Aggregate
Revolving Loan Commitment” means an amount equal to $145,000,000.00.
“Aggregate Used Vehicle Floorplan
Commitment” means an amount equal to $80,000,000.00.
“Letter
of Credit Commitment” (which is a sublimit of the Revolving Loan Commitment) means an amount equal to $7,000,000.00.
2.
Increase Option. Section 6.12.1 of the Loan Agreement
is deleted and replaced with the following:
6.12.1
The Company may from time to time request an increase in the Aggregate New Vehicle Floorplan Commitment, Aggregate Used Vehicle
Floorplan Commitment and/or Aggregate Revolving Loan Commitment, in minimum increments of $25,000,000.00 or such lower amount as
is agreed to between the Company and Agent, so long as, after giving effect thereto, (a) the aggregate amount of all such increases
(including any increases prior to the date
Page 1 – AMENDMENT TO LOAN AGREEMENT
of the requested increase) does
not exceed $150,000,000.00, (b) the Aggregate Commitment does not exceed $800,000,000.00, (c) the Aggregate Revolving Loan Commitment
does not exceed $145,000,000.00, and (d) the Aggregate Used Vehicle Floorplan Commitment is not more than 20% of the sum of the
Aggregate New Vehicle Floorplan Commitment plus the Aggregate Used Vehicle Floorplan Commitment.
3.
Schedule 1. Schedule 1 to the Loan Agreement is deleted
and replaced with the Schedule 1 attached hereto.
4.
Conditions Precedent. The effectiveness of this Amendment
is subject to satisfaction of each of the following conditions:
4.1.
Agent shall have received executed originals of this Amendment signed by Agent and each Borrower, Guarantor, and Lender, an
Increasing Lender Agreement from each Lender, such promissory notes as any Lender requires, and such other Loan Documents as Agent
requires and each Borrower and Guarantor shall have provided such information and satisfied such conditions as are required by
Agent.
4.2.
All conditions set forth in Section 6.12.3 of the Loan Agreement have been satisfied, including without limitation delivery
to Lender of the certificate required by Section 6.12.3(a)(iv).
4.3.
No Default shall have occurred and be continuing under the Loan Agreement, or will exist after giving effect to the transactions
contemplated hereby and the amendments made by this Amendment.
4.4.
All representations and warranties in the Loan Agreement and in this Amendment shall be true and correct in all material respects
as of the date of this Amendment.
5.
Defined Terms. Capitalized terms not otherwise defined
herein shall have the meanings given to such terms in the Loan Agreement.
6.
Reaffirmation; Release. By signing this Amendment
or the attached Acknowledgment:
6.1. Each
Loan Party affirms that the representations and warranties in each of the existing Loan Documents are and will be true, correct
and complete in all material respects as of the date hereof, and agree that (i) except as amended previously or in connection herewith,
each Loan Document is and shall remain valid and enforceable in accordance with its terms and (ii) such Loan Party has no claims,
defenses, setoffs, counterclaims or claims for recoupment against Agent, the Lenders, the other Indemnified Persons or the indebtedness
and obligations represented by the Notes, Guaranties, Collateral Documents and other Loan Documents.
6.2.
Each Loan Party hereby releases, acquits, and forever discharges Agent,
each Lender, their respective parent corporations, affiliates, subsidiaries, successors,
Page 2 – AMENDMENT TO LOAN AGREEMENT
assigns,
officers, directors, employees, agents, attorneys and advisors (collectively, “Indemnified Persons”), and each of them,
of and from any and all liability, claims, demands, damages, actions, causes of action, defenses, counterclaims, setoffs, or claims
for recoupment of whatsoever nature, whether known or unknown, whether in contract or tort or otherwise, arising directly or indirectly
from, or in any way related to the Loan Agreement, this Amendment, the Notes, Collateral Documents and the other Loan Documents,
any other indebtedness or obligations of any Loan Party to Agent or any one or more of the Lenders or to the relationship between
any Loan Party and Agent, any Lender, or the Indemnified Persons.
7.
References. On and after the effective date of this
Amendment, all references in the Loan Agreement and the other Loan Documents to the Loan Agreement shall be deemed to refer to
the Loan Agreement as amended hereby.
8.
Representations and Warranties. By signing this Amendment
or the attached Acknowledgment, each Loan Party represents and warrants to Agent and the Lenders as follows:
8.1. Authorization.
(a) It has all requisite power and authority to enter into this Amendment and to carry out the transactions contemplated by,
and perform its obligations under, the Loan Agreement as amended by this Amendment (the “Amended Agreement”), (b) its
execution, delivery and performance of this Amendment and the other Loan Documents to be executed, delivered or performed by it
have been duly authorized by all necessary entity action, do not require the approval of any governmental agency or other Person,
do not contravene any law, regulation, rule, order, or restriction of any Governmental Body binding on it or its articles of incorporation
or other organizational documents, and do not contravene the provisions of or constitute a default under any agreement or instrument
to which it is a party or by which it may be bound or affected, and (c) this Amendment has been duly executed and delivered by
each Loan Party and this Amendment and the Amended Agreement are the legally valid and binding obligations of each Loan Party,
enforceable against such Loan Party in accordance with their respective terms, except as may be limited by bankruptcy, insolvency,
reorganization, moratorium, fraudulent transfer or similar laws relating to or limiting creditors’ rights generally or by
equitable principles.
8.2.
Absence of Default. No Default or Event of Default has occurred and is continuing or will exist after giving effect to the
transactions contemplated by this Amendment.
9.
Expenses. Borrowers shall pay all reasonable costs,
fees and expenses (including without limitation, reasonable attorney fees of Agent’s counsel) incurred by Agent in connection
with the preparation, negotiation, execution, and delivery of this Amendment and any other document required to be furnished herewith.
10.
Recitals. The Recitals are hereby incorporated herein.
Page 3 – AMENDMENT TO LOAN AGREEMENT
11. Counterparts.
This Amendment may be executed in any number of counterparts, each of which shall be deemed to be an original, and all of said
counterparts taken together shall be deemed to constitute but one document.
[Signature pages follow]
Page 4 – AMENDMENT TO LOAN AGREEMENT
12. Disclosure.
Under Oregon law, most agreements promises and commitments made by lender concerning loans and other credit
extensions which are not for personal, family or household purposes or secured solely by the borrower’s residence must be
in writing, express consideration and be signed by the lender to be enforceable.
Lithia Motors, Inc.
By: /s/ Chris Holzshu
Name: Chris Holzshu
Title: SR VP & CFO
By: /s/ John North
Name: John North
Title: VP Fin & Corp Cont
LITHIA IMPORTS OF ANCHORAGE,
INC.
LITHIA NA,
INC.
LITHIA OF ANCHORAGE,
INC.
LITHIA OF FAIRBANKS,
INC.
LITHIA OF SOUTH CENTRAL
AK, INC.
LITHIA CIMR, INC.
LITHIA FMF,
INC.
LITHIA FRESNO,
INC.
LITHIA JEF, INC.
LITHIA MMF,
INC.
LITHIA NF, INC.
LITHIA OF
EUREKA, INC.
LITHIA OF SANTA
ROSA, INC.
LITHIA SEA
P, INC.
LITHIA SEASIDE, INC.
LITHIA TR,
INC.
LITHIA ACDM, INC.
LITHIA HDM,
INC.
LITHIA MBDM,
INC.
LITHIA NDM,
INC.
LITHIA OF DES MOINES,
INC.
LITHIA VAUDM,
INC.
LITHIA CCTF, INC.
LITHIA FORD
OF BOISE, INC.
LITHIA OF POCATELLO,
INC.
LITHIA OF TF, INC.
Page 5 – AMENDMENT TO LOAN AGREEMENT
LITHIA
POCA-HON, INC.
LITHIA
CDH, INC.
LITHIA
HGF, INC.
LITHIA
OF BILLINGS II, LLC
LITHIA
OF BILLINGS, INC.
LITHIA
OF GREAT FALLS, INC.
LITHIA
OF HELENA, INC.
LITHIA
OF MISSOULA, INC.
LITHIA
ND ACQUISITION CORP. #1
LITHIA
ND ACQUISITION CORP. #3
LITHIA
ND ACQUISITION CORP. #4
LITHIA
CJDSF, INC.
LDLC,
LLC
LITHIA
RENO SUB-HYUN, INC.
LITHIA
SALMIR, INC.
HUTCHINS
EUGENE NISSAN, INC.
HUTCHINS
IMPORTED MOTORS, INC.
LGPAC,
INC.
LITHIA
DE, INC.
LITHIA
DM, INC.
LITHIA
KLAMATH, INC.
LITHIA
MEDFORD HON, INC.
LITHIA
MTLM, INC.
LITHIA
OF BEND #1, LLC
LITHIA
OF BEND #2, LLC
LITHIA
OF ROSEBURG, INC.
LITHIA
ROSE-FT, INC.
LITHIA
SOC, INC.
LBMP,
LLC
LFKF,
LLC
LMBP,
LLC
LMBW,
INC.
LITHIA
BRYAN TEXAS, INC,
LITHIA
CJDO, INC.
LITHIA
CJDSA, INC.
LITHIA
CM, INC.
LITHIA
CO, INC.
LITHIA
CSA, INC.
LITHIA
DMID, INC.
LITHIA
HMID, INC.
LITHIA
NSA, INC.
LITHIA
OF ABILENE, INC.
LITHIA
OF CORPUS CHRISTI, INC.
LITHIA
OF MIDLAND, INC.
LITHIA
TA, INC.
LITHIA TO, INC.
Page 6 – AMENDMENT TO LOAN AGREEMENT
CAMP
AUTOMOTIVE, INC.
LITHIA
DODGE OF TRI-CITIES, INC..
LITHIA
OF BELLINGHAM, LLC
LITHIA
OF SEATTLE, INC.
LITHIA
OF SPOKANE, INC.
LITHIA
OF EUGENE, LLC
LITHIA
OF KILLEEN, LLC
LMBB,
LLC
LITHIA
OF MISSOULA II, LLC
LMOP. LLC
By: /s/ Chris Holzshu
Name: Chris Holzshu
Title: Authorized Agent
By: /s/ John North
Name: John North
Title: Authorized Agent
U.S. Bank National Association, as
Agent, Lender, Swing Line Lender, and LC Issuer
By: __________________________________
Name: ________________________________
Title: _________________________________
Page 7 – AMENDMENT TO LOAN AGREEMENT
CAMP
AUTOMOTIVE, INC.
LITHIA
DODGE OF TRI-CITIES, INC..
LITHIA
OF BELLINGHAM, LLC
LITHIA
OF SEATTLE, INC.
LITHIA
OF SPOKANE, INC.
LITHIA
OF EUGENE, LLC
LITHIA
OF KILLEEN, LLC
LMBB,
LLC
LITHIA
OF MISSOULA II, LLC
LMOP, LLC
By: __________________________________
Name: ________________________________
Title: _________________________________
By: __________________________________
Name: ________________________________
Title: _________________________________
U.S. Bank National Association, as
Agent, Lender, Swing Line Lender, and LC Issuer
By: /s/U.S. Bank National Association
Page 7 – AMENDMENT TO LOAN AGREEMENT
JPMORGAN CHASE BANK, N.A., as Lender
By: /s/ JPMORGAN CHASE BANK, N.A.
Page 8 – AMENDMENT TO LOAN AGREEMENT
MERCEDES-BENZ FINANCIAL SERVICES
USA LLC, as Lender
By: /s/ MERCEDES-BENZ FINANCIAL SERVICES USA LLC
Page 9 – AMENDMENT TO LOAN AGREEMENT
TOYOTA MOTOR CREDIT
CORPORATION, as Lender
By: /s/ TOYOTA MOTOR CREDIT CORPORATION
Page 10 – AMENDMENT TO LOAN AGREEMENT
BMW FINANCIAL SERVICES NA, LLC, as
Lender
By: /s/ BMW FINANCIAL SERVICES NA, LLC
Page 11 – AMENDMENT TO LOAN AGREEMENT
BANK OF AMERICA, NA, as Lender
By: /s/ BANK OF AMERICA, NA
Page 12 – AMENDMENT TO LOAN AGREEMENT
WELLS FARGO BANK, NA, as Lender
By: /s/ WELLS FARGO BANK, NA
Page 13 – AMENDMENT TO LOAN AGREEMENT
BANK OF THE WEST, as Lender
By: /s/ BANK OF THE WEST
Page 14 – AMENDMENT TO LOAN AGREEMENT
KEYBANK NATIONAL ASSOCIATION, as
Lender
By: /s/ KEYBANK NATIONAL ASSOCIATION
Page 15 – AMENDMENT TO LOAN AGREEMENT
NISSAN MOTOR ACCEPTANCE
CORPORATION, as Lender
By: /s/ NISSAN MOTOR ACCEPTANCE CORPORATION
Page 16 – AMENDMENT TO LOAN AGREEMENT
ACKNOWLEDGMENT AND CONSENT OF GUARANTORS
Each undersigned Guarantor hereby
acknowledges, consents, and agrees to all terms and conditions of the foregoing amendment.
HUTCHINS EUGENE NISSAN, INC.
HUTCHINS IMPORTED MOTORS, INC.
LAD ADVERTISING, INC.
LGPAC, INC.
LITHIA AUTO SERVICES, INC.
LITHIA BNM, INC.
LITHIA DE, INC.
LITHIA DM, INC.
LITHIA FINANCIAL CORPORATION
LITHIA AIRCRAFT, INC.
LITHIA HPI, INC.
LITHIA KLAMATH, INC.
L2 AUTO, INC.
LITHIA MEDFORD HON, INC.
LITHIA MOTORS SUPPORT SERVICES, INC.
LITHIA MTLM, INC.
LITHIA OF ROSEBURG, INC.
LITHIA REAL ESTATE, INC.
LITHIA ROSE-FT, INC.
LITHIA SOC, INC.
LITHIA IMPORTS OF ANCHORAGE, INC.
LITHIA NA, INC.
LITHIA OF ANCHORAGE, INC.
LITHIA OF FAIRBANKS, INC.
LITHIA OF SOUTH CENTRAL AK, INC.
LITHIA CIMR, INC.
LITHIA DC, INC.
LITHIA FMF, INC.
LITHIA JEF, INC.
LITHIA MMF, INC.
LITHIA NF, INC.
LITHIA OF EUREKA, INC.
LITHIA SEASIDE, INC.
LITHIA SEA P, INC.
LITHIA OF SANTA ROSA, INC.
LITHIA TR, INC.
LITHIA CCTF, INC.
LITHIA FORD OF BOISE, INC.
LITHIA OF CALDWELL, INC.
LITHIA OF POCATELLO, INC.
Page 17 – AMENDMENT TO LOAN AGREEMENT
LITHIA POCA-HON, INC.
LITHIA OF TF, INC.
LITHIA MBDM, INC.
LITHIA OF DES MOINES, INC.
LITHIA CDH, INC.
LITHIA HGF, INC.
LITHIA OF BILLINGS, INC.
LITHIA OF GREAT FALLS, INC.
LITHIA OF HELENA, INC.
LITHIA OF MISSOULA, INC.
LITHIA CJDSF, INC.
LITHIA RENO SUB-HYUN, INC.
LITHIA SALMIR, INC.
LITHIA ND ACQUISITION CORP. #1
LITHIA ND ACQUISITION CORP.
#3
LITHIA ND ACQUISITION CORP. #4
LITHIA AUTOMOTIVE, INC.
CAMP AUTOMOTIVE, INC.
LITHIA DC OF RENTON, INC.
LITHIA DODGE OF TRI-CITIES, INC.
LITHIA HYR, INC.
LITHIA OF SEATTLE, INC.
LITHIA OF SPOKANE, INC.
LITHIA OF CEDAR RAPIDS #1, INC.
LITHIA OF CEDAR RAPIDS #3,
INC.
LITHIA ACDM, INC.
LITHIA HDM, INC.
LITHIA NDM, INC.
LITHIA VAUDM, INC.
LITHIA BRYAN TEXAS, INC.
LITHIA CJDO, INC.
LITHIA CJDSA, INC.
LITHIA CM, INC.
LITHIA CO, INC.
LITHIA CSA, INC.
LITHIA DMID, INC.
LITHIA HMID, INC.
LITHIA NSA, INC.
LITHIA OF ABILENE, INC.
LITHIA OF CORPUS CHRISTI, INC.
LITHIA OF MIDLAND, INC.
LITHIA TA, INC.
LITHIA TO, INC.
L2 AUTO OF COLORADO, INC.
LITHIA OF TEXAS, INC.
L2 AUTO OF IDAHO, INC.
Page 18 – AMENDMENT TO LOAN AGREEMENT
L2 AUTO OF OREGON, LLC
LITHIA FRESNO, INC.
LITHIA OF BEND #1, LLC
LITHIA OF BEND #2, LLC
LITHIA OF BILLINGS II LLC
LBMP, LLC
LMBP, LLC
LMBW,
INC.
LMBB,
LLC
LFKF, LLC
LITHIA OF BELLINGHAM, LLC
LDLC,
LLC
LITHIA OF EUGENE, LLC
LITHIA OF KILLEEN, LLC
LITHIA OF MISSOULA II, LLC
LMOP,
LLC
SOUTHERN CASCADES FINANCE
CORPORATION
By: /s/ Chris Holzshu
Name: Chris Holzshu
Title: Authorized Agent
By: /s/ John North
Name: John North
Title: Authorized Agent
Page 19 – AMENDMENT TO LOAN AGREEMENT
