EXHIBIT 4.1.2
AMENDMENT NO. 1
TO
SECURITIES PURCHASE AGREEMENT
This Amendment No. 1 to Securities Purchase Agreement (this
"Amendment") dated as of January 9, 1998 is entered into by and among each of
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the New Subsidiaries (as defined below) and each of the parties to the
Securities Purchase Agreement dated as of July 11, 1997 (the "Securities
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Purchase Agreement") by and among FirstAmerica Automotive, Inc., a Delaware
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corporation (the "Company"), the Guarantors (as defined therein) and the
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purchasers listed on the signature pages thereto.
WHEREAS, the parties hereto desire to amend certain provisions of the
Securities Purchase Agreement and to add each of the New Subsidiaries (as
defined below) as a party thereto, in the capacity as a Guarantor.
NOW, THEREFORE, in consideration of the foregoing, and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
Section 1. Definitions. For all purposes of this Amendment:
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(a) Capitalized terms used but not defined herein shall have the
respective meanings assigned to such terms in the Securities Purchase
Agreement; and
(b) The terms "hereby," "hereto," "hereof" and "herewith" and other
words of similar import refer to this Amendment.
Section 2. New Subsidiary Guarantors.
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(a) In accordance with the provisions of Section 10.3 of the
Securities Purchase Agreement, each of FAA Capitol N, Inc., a California
corporation, and FAA Auto Factory, Inc., a California corporation, (each, a
"New Subsidiary" and collectively, the "New Subsidiaries") is hereby joined
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as a party to the Securities Purchase Agreement and agrees that by its
execution hereof (i) it shall be deemed to have executed the Securities
Purchase Agreement, and is a Guarantor thereunder for all purposes thereof,
(ii) it hereby makes the Subsidiary Guaranty contained in the Securities
Purchase Agreement, and undertakes, covenants and agrees to all of the
obligations, agreements, waivers and other provisions under the Securities
Purchase Agreement as a Guarantor thereunder and (iii) it hereby affirms
and makes all of the representations and warranties made by each Guarantor
under the Securities Purchase Agreement. All references in the Securities
Purchase Agreement and in the Notes to a Guarantor shall hereafter include
each of the New Subsidiaries.
(b) For value received, each of the New Subsidiaries hereby
unconditionally guarantees to the Holders of the Notes (i) the due and
punctual payment, on the basis set forth in the Securities Purchase
Agreement pursuant to which the Notes and this guaranty were issued, of the
principal of, premium (if any) and interest on such Notes when and as the
same shall become due and payable for any reason according to the terms of
such Notes and Section 10 of the Securities Purchase Agreement, and (ii)
that all other obligations of the Company under the Securities Purchase
Agreement or the Notes will be promptly paid in full or performed in
accordance with the terms of the Securities Purchase Agreement and the
Notes.
(c) Each of the New Subsidiaries hereby acknowledges that its
execution of this Amendment satisfies the requirements of and constitutes
compliance with the terms of Section 10 of the Securities Purchase
Agreement (including without limitation Section 10.3 thereof).
(d) Each of the Company and each of its Subsidiaries (including
without limitation each of the New Subsidiaries) represents and warrants to
the Holders that this Amendment has been duly authorized, executed and
delivered, by it and constitutes its legal, valid and binding obligation,
enforceable against it in accordance with its terms.
Section 3. Used Vehicle Financing. In order to allow the Company and its
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Subsidiaries to incur a limited amount of Indebtedness in connection with the
financing of the purchase of Used Vehicles (as defined in the Loan Agreement as
in effect on the Closing Date), the parties hereto agree to the following
amendments to the Securities Purchase Agreement:
(a) Section 5.5 of the Securities Purchase Agreement is hereby
amended and restated in its entirety to read as follows:
5.5 Limitation on Additional Indebtedness and Issuance of Disqualified Stock.
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(a) The Company will not, and will not permit any of its
Subsidiaries (including without limitation, upon the creation or
acquisition of such Subsidiary) to, directly or indirectly,
create, incur, issue, assume, guarantee or otherwise become
directly or indirectly liable with respect to (collectively,
"incur") any Indebtedness or issue any Disqualified Stock,
provided that the Company may incur Indebtedness and may issue
Disqualified Stock if:
(i) no Default or Event of Default shall have
occurred and be continuing at the time or would occur as a
consequence of the incurrence of such Indebtedness or the
issuance of such Disqualified Stock;
(ii) the Consolidated Interest Expense Coverage Ratio
of the Company for the four fiscal quarters immediately
preceding the date on which such Indebtedness is incurred or
Disqualified Stock is issued would have been at least 2.5 to
1 (determined on a pro forma basis as if such additional
Indebtedness had been incurred (or Disqualified Stock had
been issued) at the beginning of such four-fiscal quarter
period);
(iii) such Indebtedness shall be Subordinated
Indebtedness and the maturity and the Weighted Average Life
to Maturity of such Subordinated Indebtedness are both
greater than the maturity and the Weighted Average Life to
Maturity of the Notes; and
(iv) the Company shall have successfully completed a
Company IPO.
(b) The foregoing limitations will not apply to:
(i) the incurrence by the Company or any of its
Subsidiaries of Indebtedness under the Loan Agreement;
provided that such Indebtedness is incurred for the purpose
of acquiring new car inventory in the ordinary course of
business and is secured by a purchase money security
interest in such inventory; provided, further that the
aggregate principal amount of such Indebtedness at any one
time outstanding (including loans, the nominal amount of
outstanding letters of credit and all unused commitments)
shall not exceed the difference between (1) the lesser
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of the New Vehicle Advance Rate and $130,000,000 and (2) any
permanent reductions in the credit available to the Company
and its Subsidiaries under the Loan Agreement in accordance
with the provisions of Section 5.8 hereof;
(ii) the incurrence by the Company or any of its
Subsidiaries of Acquisition Indebtedness under the Loan
Agreement; provided, that the aggregate principal amount at
any one time outstanding (including loans, the nominal
amount of outstanding letters of credit and all unused
commitments) of such Indebtedness shall not exceed the
difference between (1) the lesser of the Revolver Advance
Rate and $35,000,000 and (2) any permanent reductions in the
credit available to the Company and its Subsidiaries under
the Loan Agreement in accordance with the provisions of
Section 5.8 hereof;
(iii) the incurrence by the Company or any of its
Subsidiaries of Indebtedness under the Loan Agreement;
provided, that such Indebtedness is incurred for the purpose
of acquiring Program Vehicles (as defined in the Loan
Agreement as in effect on the Closing Date) inventory in the
ordinary course of business and is secured by a purchase
money security interest in such inventory; provided,
further, that the aggregate principal amount of such
Indebtedness at any one time outstanding (including loans,
the nominal amount of outstanding letters of credit and all
unused commitments) shall not exceed the difference between
(1) the lesser of the Program Vehicle Advance Rate and
$15,000,000 and (2) any permanent reductions in the credit
available to the Company and its Subsidiaries under the Loan
Agreement in accordance with the provisions of Section 5.8
hereof;
(iv) the incurrence by the Company of the Indebtedness
represented by the Notes;
(v) the incurrence by the Company of Permitted
Refinancing Indebtedness in exchange for, or the net
proceeds of which are used to extend, refinance, renew,
replace, defease or refund other Indebtedness of the Company
incurred pursuant to clause (a) above;
(vi) Indebtedness of the Company or its Subsidiaries
in an amount not to exceed $2,000,000 at any time
outstanding representing a Capitalized Lease Obligation or
Purchase Money Indebtedness;
(vii) Subordinated Indebtedness of the Company to any
Wholly Owned Subsidiary of the Company or Indebtedness of
any Wholly Owned Subsidiary of the Company solely to the
Company or to any Wholly Owned Subsidiary of the Company
provided that neither the Company nor any Subsidiary of the
Company shall become liable pursuant to such Indebtedness,
to any Person other than the Company or another Wholly Owned
Subsidiary of the Company;
(viii) Seller Indebtedness in an aggregate amount not to
exceed $3,000,000 at any time outstanding; and
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(ix) the incurrence by the Company or any of its
Subsidiaries of Indebtedness under the Loan Agreement;
provided that such Indebtedness is incurred for the purpose
of acquiring Used Vehicles (as defined in the Loan Agreement
as in effect on the Closing Date) inventory in the ordinary
course of business and is secured by a purchase money
security interest in such inventory; provided, further that
the aggregate principal amount of such Indebtedness at any
one time outstanding (including loans, the nominal amount of
outstanding letters of credit and all unused commitments)
shall not exceed the difference between (1) the lesser of
the Used Vehicle Advance Rate and $5,000,000 and (2) any
permanent reductions in the credit available to the Company
and its Subsidiaries under the Loan Agreement in accordance
with the provisions of Section 5.8 hereof.
(b) Section 9.1 of the Securities Purchase Agreement is hereby amended
by inserting the following definition immediately after the definition of
the term "U.S. Government Obligations" and immediately before the
definition of the term "U.S. Legal Tender":
"Used Vehicle Advance Rate" means the amount permitted to be
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advanced to the Subsidiaries of the Company pursuant to Section II.G of the Loan
Agreement (as in effect on the date of, and after giving effect to the
provisions of, the Second Amendment to the Loan Agreement dated as of January 9,
1998).
Section 4. Miscellaneous.
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(a) THIS AMENDMENT AND ALL ISSUES HEREUNDER SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF CALIFORNIA
(WITHOUT REFERENCE TO PRINCIPLES OF CONFLICTS OF LAW).
(b) Upon the execution and delivery of this Amendment, the Securities
Purchase Agreement shall be amended in accordance herewith and this Amendment
shall form a part of the Securities Purchase Agreement for all purposes, and the
parties hereto and every Holder shall be bound by the Securities Purchase
Agreement, as so amended.
(c) This Amendment may be executed in as many counterparts as may be
deemed necessary and convenient, and by the different parties hereto on separate
counterparts each of which, when so executed, shall be deemed an original, but
all such counterparts shall constitute one and the same instrument.
(d) The Section headings of this Amendment are for convenience of
reference only and shall not be deemed to modify, explain, restrict, alter or
affect the meaning or interpretation of any provision hereof.
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IN WITNESS WHEREOF, this Amendment has been duly executed by the
parties set forth below as of the date first written above.
Company:
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FIRSTAMERICA AUTOMOTIVE, INC.
By: _____________________________
Name:____________________________
Title:___________________________
Guarantors:
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FAA SAN BRUNO, INC. FAA STEVENS CREEK, INC.
By:____________________________ By:_______________________________
Name:__________________________ Name:____________________________
Title:_________________________ Title:___________________________
SMART NISSAN, INC. FAA DEALER SERVICES, INC.
By:____________________________ By:_____________________________
Name:__________________________ Name:___________________________
Title:_________________________ Title:__________________________
TRANSCAR LEASING, INC. FAA CONCORD H, INC.
By:____________________________ By:_____________________________
Name:__________________________ Name:___________________________
Title:_________________________ Title:__________________________
FAA CONCORD N, INC. FAA POWAY D, INC.
By:____________________________ By:_____________________________
Name:__________________________ Name:___________________________
Title:_________________________ Title:__________________________
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FAA POWAY T, INC. FAA POWAY H, INC.
By:_____________________________ By:_____________________________
Name:___________________________ Name:___________________________
Title:__________________________ Title:__________________________
FAA DUBLIN VWD, INC. FAA DUBLIN N, INC.
By:_____________________________ By:_____________________________
Name:___________________________ Name:___________________________
Title:__________________________ Title:__________________________
FAA SERRAMONTE L, INC. FAA SERRAMONTE, INC.
By:_____________________________ By:_____________________________
Name:___________________________ Name:___________________________
Title:__________________________ Title:__________________________
FAA CAPITOL N, INC. FAA AUTO FACTORY, INC.
By:_____________________________ By:_____________________________
Name:___________________________ Name:___________________________
Title:__________________________ Title:__________________________
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Holders:
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TCW/CRESCENT MEZZANINE PARTNERS, L.P.
TCW/CRESCENT MEZZANINE TRUST
TCW/CRESCENT MEZZANINE INVESTMENT PARTNERS
By: TCW/CRESCENT MEZZANINE, L.L.C.,
its general partner or managing owner
By: /s/ Jean-Marc Chapus
________________________________
Jean-Marc Chapus
Managing Director
By: /s/ John C. Rocchio
________________________________
John C. Rocchio
Senior Vice President
TCW LEVERAGED INCOME TRUST, L.P.
By: TCW ADVISORS (BERMUDA), LIMITED,
as General Partner
By:__________________________________
Name:________________________________
Title:_______________________________
By: TCW INVESTMENT MANAGEMENT
COMPANY, as Investment Advisor
By:__________________________________
Name:________________________________
Title:_______________________________
CRESCENT/MACH I PARTNERS, L.P.
By: TCW ASSET MANAGEMENT COMPANY,
as investment manager and attorney-in-fact
By: /s/ Jean-Marc Chapus
_____________________________________
Jean-Marc Chapus
Managing Director
By: /s/ John C. Rocchio
_____________________________________
John C. Rocchio
Senior Vice President
TCW SHARED OPPORTUNITY FUND II, L.P.
By: TCW INVESTMENT MANAGEMENT
COMPANY, its investment advisor
By: /s/ Jean-Marc Chapus
_____________________________________
Jean-Marc Chapus
Managing Director
By: /s/ John C. Rocchio
_____________________________________
John C. Rocchio
Senior Vice President