Exhibit 10.1


 


SECOND AMENDMENT
TO

CREDIT AGREEMENT


 


This SECOND AMENDMENT TO CREDIT AGREEMENT (this
“Amendment”), effective as of August 1, 2006, is entered into by and
among Asbury Automotive Group, Inc. (the “Company”), each of the
subsidiaries of the Company listed on the signature pages hereof (the “Floor
Plan Borrowers”), 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”), JPMorgan Chase Bank, N.A., as Floor Plan
Agent for the Lenders (the “Floor Plan Agent”) and Bank of America, N.A., as Syndication
Agent.


 


PRELIMINARY
STATEMENT


 


WHEREAS,
the Company, the Floor Plan Borrowers, the Lenders, the Agent, the Floor Plan
Agent and the Syndication Agent entered into that certain Revolving Credit
Agreement dated March 23, 2005 (as amended, the “Credit Agreement”),
under the terms of which such Lenders agreed to make available to the Company
(a) a revolving credit commitment not to exceed at any time $150,000,000.00 and
(b) a floor plan loan commitment not to exceed $650,000,000.00; and


 


WHEREAS,
pursuant to the First Amendment to Credit Agreement and Waiver, effective March 1,
2006, all the parties thereto agreed to reduce the revolving credit commitment
to $125,000,000 and the floor plan commitment to $425,000,000; and


 


WHEREAS,
the Company and the Floor Plan Borrowers have requested the Lenders, the Agent
and the Floor Plan Agent to amend certain provisions of the Credit Agreement;
and


 


WHEREAS,
the Lenders, the Agent and the Floor Plan Agent have agreed to do so to the
extent reflected in this Amendment.


 


NOW,
THEREFORE, in consideration of the premises and for other
good and valuable consideration and the mutual benefits, covenants and
agreements herein expressed, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as follows:


 


1.     Defined
Terms. All capitalized terms used in this Amendment and not otherwise
defined herein shall have the meanings ascribed to such terms in the Credit
Agreement.


 


2.     Amendment
to Section 1.1. Section 1.1 of the Credit Agreement is hereby
amended by restating the definition of “Applicable Margin” contained therein to
decrease the Eurodollar Margin and the Alternate Base Rate Margin applicable to
Revolving Credit Loans, to read as follows:


 


“Applicable Margin”
means, on any date, with respect to Eurodollar Loans or Alternate Base Rate
Loans that are Revolving


 

















 


Credit Loans, the applicable percentages set forth below based upon the
Total Leverage Ratio in effect as of such date.


 




	
   

  	
   

  	
  Total Leverage

  Ratio

  	
   

  	
  Eurodollar

  Margin

  	
   

  	
  Alternate Base

  Rate Margin

  	
   

  	
  Commitment

  Fee Rate

  	
   

  
	
  Level 1

  	
   

  	
  x > 4.00

  	
   

  	
  2.75

  	
  %

  	
  1.25

  	
  %

  	
  .375

  	
  %

  
	
  Level 2

  	
   

  	
  3.50 < x <
  4.00

  	
   

  	
  2.50

  	
  %

  	
  1.00

  	
  %

  	
  .375

  	
  %

  
	
  Level 3

  	
   

  	
  3.00 < x <
  3.50

  	
   

  	
  2.25

  	
  %

  	
  0.75

  	
  %

  	
  .375

  	
  %

  
	
  Level 4

  	
   

  	
  2.50 < x <
  3.00

  	
   

  	
  2.00

  	
  %

  	
  0.50

  	
  %

  	
  .375

  	
  %

  
	
  Level 5

  	
   

  	
  x < 2.50

  	
   

  	
  1.75

  	
  %

  	
  0.25

  	
  %

  	
  .375

  	
  %

  






 


3.     Amendment
to Section 5.2(b)(ii). Section 5.2(b)(ii) of the Credit
Agreement is amended and restated in its entirety to decrease the Margin applicable
to Eurodollar Loans that are Floor Plan Loans, to read as follows:


 


“(ii) each Eurodollar Loan which is a Floor Plan Loan
(excluding Swing Line Loans) shall bear interest at a rate per annum (computed
on the basis of the actual number of days elapsed over a year of 360 days)
equal to the LIBO Rate for the Interest Period in effect for such Loan plus:
(A) 1.00% if such Loan is to finance New Motor Vehicles or Demonstrators
and (B) 1.125% if such Loan is to finance Used Motor Vehicles or Rental
Motor Vehicles.”


 


4.     Amendment
to Section 5.4(a)(i). Section 5.4(a)(i) of the Credit Agreement is amended to
reduce the Floor Plan Loan Commitment Fee by replacing the reference to “twenty-five-one-hundredths
of one percent (0.25%)” with “twenty-one-hundredths of one percent (0.20%)”.


 


5.     Ratification.
The Company and each of the Floor Plan Borrowers 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 Amendment. Nothing in
this Amendment extinguishes, novates or releases any right, claim, lien,
security interest or entitlement of any of the Lenders, the Agent or the Floor
Plan Agent created by or contained in any of such documents nor is the Company
nor any Floor Plan Borrower released from any covenant, warranty or obligation
created by or contained herein or therein.


 


6.     Representations
and Warranties. The Company and each of the Floor Plan Borrowers hereby
represents and warrants to the Administrative Agent and the Lenders that
(a) this Amendment has been duly executed and delivered on behalf of the
Company and each of the Floor Plan Borrowers, (b) this Amendment
constitutes a valid and legally binding agreement enforceable against the
Company and each of the Floor Plan Borrowers 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 contained in the Credit Agreement and the Loan Documents are
true and correct on and as of the date hereof in all material respects as
though made as of the date hereof, except as heretofore otherwise disclosed in
writing to the Agent, (d) no Default or Event of Default exists under the
Credit Agreement or under any Loan Document and (e) the execution,
delivery and performance of this Amendment has been duly authorized by the
Company and each of the Floor Plan Borrowers.


 


7.     Conditions
to Effectiveness. This Amendment shall be effective upon the execution and
delivery hereof by all parties to the Agent and receipt by the Agent of the
following in form satisfactory to the Agent:


 


(a)   this
Amendment;


 


(b)   a
certificate of an officer and of the secretary or an assistant secretary of
each of the Company, and each Floor Plan Borrower certifying, inter alia, (i) copies of each of the
articles or certificate of incorporation or organization, as amended and in
effect, of such Person, the bylaws or Operating Agreement or regulations, as
amended and in effect, of such Person (or a statement that such documents have
not changed) and the resolutions adopted by the Board of Directors or Managers
of such Person (A) authorizing the execution, delivery and performance by
such Person of the Loan Documents to which it is or will be a party, and (B) approving
the form of this Amendment and (ii) the incumbency and specimen signatures
of the officers of such Person executing any documents on its behalf;


 


(c)   the
payment to the Agent of all fees and expenses (including the fees and
disbursements of Andrews Kurth LLP) and all fees payable to the Lenders in
connection with this Amendment;


 


(d)   such
other consents, approvals, opinions or documents as the Agent or the Lenders
may reasonably request.


 


8.     Release
and Indemnity. (a) The Company does hereby release and forever discharge
the Agent, Floor Plan Agent and each of the Lenders and each affiliate thereof
and each of their respective employees, officers, directors, trustees, agents,
attorneys, successors, assigns or other representatives from any and all
claims, demands, damages, actions, cross-actions, causes of action, costs and
expenses (including legal expenses), of any kind or nature whatsoever, whether
based on law or equity, which any of said parties has held or may now or in the
future own or hold, whether known or unknown, for or because of any matter or
thing done, omitted or suffered to be done on or before the actual date upon
which this Amendment is signed by any of such parties (a) arising directly or
indirectly out of the Loan Documents, or any other documents, instruments or
any other transactions relating thereto and/or (b) relating directly or
indirectly to all transactions by and between the Company, the Floor Plan Borrowers,
or their representatives and the Agent, the Floor Plan Agent and each Lender or
any of their respective directors, officers, agents, employees, attorneys or
other representatives. Such release, waiver, acquittal and discharge shall and
does include, without limitation, any claims of usury, fraud,


 

















 


duress, misrepresentation, lender liability, control, exercise of
remedies and all similar items and claims, which may, or could be, asserted by
the Company or any Floor Plan Borrower.


 


(b)   The
Company and each Floor Plan Borrower hereby ratifies the indemnification
provisions contained in the Loan Documents, including, without limitation, Section
13.4 of the Credit Agreement, and agrees that this Amendment and losses,
claims, damages and expenses related thereto shall be covered by such
indemnities.


 


9.     Counterparts.
This Amendment may be signed in any number of counterparts, which may be
delivered in original or facsimile form each of which shall be construed as an
original, but all of which together shall constitute one and the same
instrument.


 


10.   Governing
Law. This Amendment, all Notes, the other Loan
Documents and all other documents executed in connection herewith shall be
deemed to be contracts and agreements under the laws of the State of New York
and of the United States of America and for all purposes shall be construed in
accordance with, and governed by, the laws of New York and of the United
States.


 


11.   Final
Agreement of the Parties. Any previous agreement
among the parties with respect to the subject matter hereof is superseded by
the Credit Agreement, as amended by this Amendment. Nothing in this Amendment,
express or implied is intended to confer upon any party other than the parties
hereto any rights, remedies, obligations or liabilities under or by reason of
this Amendment.


 


[Signatures on
Separate Pages]