EXHIBIT 10.1
FIFTH AMENDMENT TO
AMENDED AND RESTATED LOAN AGREEMENT
AND AMENDMENT TO PROMISSORY NOTES
DATED:
As of June 30, 2005
PARTIES:
Lithia Financial Corporation
("LFC")
Lithia Motors, Inc.
("LMI")
Lithia Aircraft, Inc.
("LAI")
AND:
U.S. Bank National Association
("Lender")
This Agreement amends (a) the Amended and Restated Loan Agreement between the
parties and Lithia Salmir, Inc. dated as of December 28, 2001, as amended by
agreements dated April 2, 2003, February 6, 2004, and December 22, 2004,
(collectively, the "Loan Agreement"); (b) the promissory note dated December 22,
2004, executed by LFC and LAI (i) in the principal amount of $35,000,000.00; and
(ii) in the principal amount of $15,000,000.00 (each, a "Note" and collectively,
"Notes").
For valuable consideration, the parties agree as follows:
1.
AMENDMENT TO LOAN AGREEMENT.
A.
SECTION 3.3.3 OF THE LOAN AGREEMENT IS
DELETED AND REPLACED WITH THE FOLLOWING:
3.3.3
Principal Payments.
The principal balance of the
New Revolving Note shall be due and payable on May 1, 2007.
2.
AMENDMENT TO NOTE.
SECTION 6(A) OF EACH
OF THE NOTES IS DELETED AND REPLACED WITH THE FOLLOWING:
(a)
Principal.
Principal is payable on May 1,
2007 ("Maturity Date").
3.
CONDITIONS PRECEDENT.
THE EFFECTIVENESS
OF THIS AGREEMENT IS SUBJECT TO SATISFACTION OF EACH OF THE FOLLOWING
CONDITIONS:
A.
LENDER HAS RECEIVED EXECUTED ORIGINALS
OF THIS AGREEMENT AND SUCH OTHER LOAN DOCUMENTS AS LENDER REQUIRES AND EACH LOAN
PARTY HAS PROVIDED SUCH INFORMATION AND SATISFIED SUCH REQUIREMENTS AS LENDER
REASONABLY REQUIRES.
B.
NO DEFAULT HAS OCCURRED AND IS
CONTINUING.
1
C.
ALL REPRESENTATIONS AND WARRANTIES IN
THE LOAN AGREEMENT ARE TRUE AND CORRECT AS OF THE DATE OF THIS AGREEMENT.
4.
DEFINED TERMS.
CAPITALIZED TERMS NOT
OTHERWISE DEFINED HEREIN SHALL HAVE THE MEANINGS GIVEN TO SUCH TERMS IN THE LOAN
AGREEMENT.
5.
REAFFIRMATION.
EACH LOAN PARTY
REAFFIRMS THE REPRESENTATIONS AND WARRANTIES IN EACH OF THE EXISTING LOAN
DOCUMENTS AND AGREES THAT (A) EXCEPT AS AMENDED PREVIOUSLY OR IN CONNECTION
HEREWITH, EACH LOAN DOCUMENT IS AND SHALL REMAIN VALID AND ENFORCEABLE IN
ACCORDANCE WITH ITS TERMS AND (B) SUCH LOAN PARTY HAS NO CLAIMS, DEFENSES,
SETOFFS, COUNTERCLAIMS OR CLAIMS FOR RECOUPMENT AGAINST LENDER OR THE
INDEBTEDNESS AND OBLIGATIONS REPRESENTED BY THE NOTES, GUARANTIES, LC
AGREEMENTS, LETTER OF CREDIT, AND OTHER LOAN DOCUMENTS.
6.
EXPENSES.
BORROWER SHALL PAY ALL COSTS,
FEES AND EXPENSES INCURRED BY LENDER IN CONNECTION WITH THE PREPARATION,
NEGOTIATION, EXECUTION, AND DELIVERY OF THIS AGREEMENT AND ANY OTHER DOCUMENT
REQUIRED TO BE FURNISHED HEREWITH, INCLUDING WITHOUT LIMITATION THE CHARGES OF
LENDER'S LEGAL COUNSEL.
7.
COUNTERPARTS.
THIS AGREEMENT 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.
8.
COPIES.
EACH LOAN PARTY ACKNOWLEDGES
RECEIPT OF A COPY OF THIS AMENDMENT.
THE LOAN AGREEMENT AND NOTES, TOGETHER
WITH ALL AMENDMENTS THERETO FROM TIME TO TIME, ARE "TRANSFERABLE RECORDS" AS
DEFINED IN APPLICABLE LAW RELATING TO ELECTRONIC TRANSACTIONS.
THEREFORE,
LENDER MAY, ON BEHALF OF BORROWER,