SC 13D/A

Number of

Shares

Beneficially

Owned by

Each

Reporting

Person

With

Sole Voting Power

50,893,014⁽¹⁾

Shared Voting Power

25,586,021⁽²⁾

Sole Dispositive Power

50,893,014⁽¹⁾

Shared Dispositive Power

25,586,021⁽²⁾

0001193125-22-134240.txt : 20220429 0001193125-22-134240.hdr.sgml : 20220429 20220429171214 ACCESSION NUMBER: 0001193125-22-134240 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 20220429 DATE AS OF CHANGE: 20220429 GROUP MEMBERS: ECG II SPE, LLC GROUP MEMBERS: VERDE INVESTMENTS, INC. SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: CARVANA CO. CENTRAL INDEX KEY: 0001690820 STANDARD INDUSTRIAL CLASSIFICATION: RETAIL-AUTO DEALERS & GASOLINE STATIONS [5500] IRS NUMBER: 814549921 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-89974 FILM NUMBER: 22877388 BUSINESS ADDRESS: STREET 1: 1930 W. RIO SALADO PARKWAY CITY: TEMPE STATE: AZ ZIP: 85281 BUSINESS PHONE: (480) 719-8809 MAIL ADDRESS: STREET 1: 1930 W. RIO SALADO PARKWAY CITY: TEMPE STATE: AZ ZIP: 85281 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: GARCIA ERNEST C. II CENTRAL INDEX KEY: 0001017608 FILING VALUES: FORM TYPE: SC 13D/A MAIL ADDRESS: STREET 1: 100 CRESCENT COURT STREET 2: SUITE 1100 CITY: DALLAS STATE: TX ZIP: 75201 FORMER COMPANY: FORMER CONFORMED NAME: GARCIA ERNEST C II DATE OF NAME CHANGE: 19960626 SC 13D/A 1 d193123dsc13da.htm SC 13D/A SC 13D/A

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

SCHEDULE 13D

Under the Securities Exchange Act of 1934

(Amendment No. 27)*

Carvana Co.

(Name of Issuer)

Class A Common Stock, par value $0.001 per share

(Title of Class of Securities)

146869 102

(CUSIP Number)

Ernest C. Garcia II

c/o Verde Investments, Inc.

100 Crescent Court, Suite 1100

Dallas, Texas 75201

(469) 564-4800

(Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications)

April 26, 2022

(Date of Event which Requires Filing of this Statement)

If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of §§240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box. ☐

*	The remainder of this cover page shall be filled out for a reporting person’s initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page.

The information required on the remainder of this cover page shall not be deemed to be “filed” for the purpose of Section 18 of the Securities Exchange Act of 1934 (the “Act”) or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act.

CUSIP No. 146869 102


1.		Names of Reporting Persons Ernest C. Garcia II
2.		Check the Appropriate Box if a Member of a Group (See Instructions) (a) ☐ (b) ☐
3.		SEC Use Only
4.		Source of Funds (See Instructions) PF, AF
5.		Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e)
6.		Citizenship or Place of Organization United States of America

Note: All share numbers on these cover pages are presented as shares of Class A common stock, par value $0.001 per share (the “Class A Shares”) of Carvana Co., a Delaware corporation (the “Issuer”), on an as-converted basis from Class A common units (“Class A Units”) of Carvana Group, LLC, a Delaware limited liability company (“Carvana Group”) and subsidiary of the Issuer, as further described herein.

(1)

This number is comprised of the Class A Shares held by: (i) Ernest C. Garcia II (“Mr. Garcia”) (42,299,958 shares, including 38,937,458 shares on an as-converted basis); (ii) Verde Investments, Inc. (“Verde”) (593,056 shares), which Mr. Garcia wholly owns and controls; and (iii) ECG II SPE, LLC (“E-SPE”) (8,000,000 shares on an as-converted basis), which Mr. Garcia wholly owns and controls.

(2)

Mr. Garcia may be considered to have shared voting and dispositive power with respect to the Class A Shares held by: (i) the Ernest Irrevocable 2004 Trust III (the “2004 Trust”) (12,684,021 shares, including 11,834,021 shares on an as-converted basis), of which Mr. Garcia is a non-voting co-trustee and Mr. Garcia’s son, Ernie Garcia III, is the sole beneficiary; and (ii) the Ernest C. Garcia III Multi-Generational Trust III (the “Multi-Generational Trust”) (12,902,000 shares, including 11,952,000 shares on an as-converted basis), of which Mr. Garcia is a non-voting co-trustee and Ernie Garcia III and his children are the sole beneficiaries.

(3)	Based on 105,726,588 Class A Shares outstanding as of April 25, 2022, and assuming the conversion of all Class A Units of Carvana Group held by Mr. Garcia into Class A Shares, in accordance with Rule 13d-3 of the Act.

CUSIP No. 146869 102


1.		Names of Reporting Persons Verde Investments, Inc.
2.		Check the Appropriate Box if a Member of a Group (See Instructions) (a) ☐ (b) ☐
3.		SEC Use Only
4.		Source of Funds (See Instructions) WC
5.		Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e)
6.		Citizenship or Place of Organization Arizona

Note: All share numbers on these cover pages presented as Class A Shares on an as-converted basis from Class A Units of Carvana Group, as further described herein.

(1)	Beneficial ownership of the Class A Shares owned by Verde is also attributable to Mr. Garcia as the sole shareholder and director of Verde, and is therefore reported by more than one reporting person pursuant to Rule 13d-3 under the Act.

(2)	Based on 105,726,588 Class A Shares outstanding as of April 25, 2022 and determined in accordance with Rule 13d-3 under the Act.

CUSIP No. 146869 102


1.		Names of Reporting Persons ECG II SPE, LLC
2.		Check the Appropriate Box if a Member of a Group (See Instructions) (a) ☐ (b) ☐
3.		SEC Use Only
4.		Source of Funds (See Instructions) AF
5.		Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e)
6.		Citizenship or Place of Organization Arizona

Note: All share numbers on these cover pages presented as Class A Shares on an as-converted basis from Class A Units of Carvana Group, as further described herein.

(1)	Beneficial ownership of the Class A Shares owned by E-SPE is also attributable to Mr. Garcia, as the sole member of E-SPE, and is therefore reported by more than one reporting person pursuant to Rule 13d-3 under the Act.

(2)	Based on 105,726,588 Class A Shares outstanding as of April 25, 2022, and assuming the conversion of all Class A Units of Carvana Group owned by E-SPE into Class A Shares, in accordance with Rule 13d-3 of the Act.

EXPLANATORY NOTE

This Amendment No. 27 (“Amendment No. 27”) to Schedule 13D is filed jointly by Mr. Garcia, Verde and E-SPE (collectively, the “Reporting Persons”) with respect to the Class A Shares, pursuant to their Joint Filing Agreement dated as of May 12, 2017, as amended and restated on September 27, 2018 and on April 3, 2020 (the “Joint Filing Agreement”), filed as an exhibit to the Schedule 13D originally filed on behalf of the Reporting Persons with the United States Securities and Exchange Commission (the “SEC”) on May 12, 2017 and subsequently amended on May 9, 2018, May 23, 2018, September 17, 2018, September 28, 2018, October 22, 2018, November 8, 2018, March 15, 2019, April 1, 2019, May 20, 2019, June 26, 2019, April 3, 2020, June 16, 2020, November 6, 2020, December 9, 2020, January 7, 2021, January 28, 2021, February 24, 2021, March 16, 2021, April 14, 2021, May 12, 2021, May 27, 2021, June 22, 2021, July 13, 2021, August 2, 2021, August 26, 2021, and February 7, 2022 (the “Original Schedule 13D”). Capitalized terms used but not otherwise defined herein shall have the meanings ascribed to them in the Original Schedule 13D. Except as specifically provided herein, this Amendment No. 27 does not modify any of the information previously reported in the Original Schedule 13D.

Item 1. Security and Issuer

The second paragraph of Item 1 of the Original Schedule 13D is hereby amended and restated in its entirety as follows:

The address of the Issuer’s principal executive offices is 1930 W. Rio Salado Parkway, Tempe. Arizona 85281.

Item 3. Source and Amount of Funds or Other Consideration

Item 3 of the Original Schedule 13D is hereby amended and supplemented to include the following information:

On April 26, 2022, in connection with a public offering of the Issuer: (i) Mr. Garcia purchased 3,362,500 Class A Shares; (ii) Verde purchased 37,500 Class A Shares; (iii) the 2004 Trust purchased 850,000 Class A Shares; and (iv) the Multi-Generational Trust purchased 850,000 Class A Shares, in each case, at a purchase price of $80 per share.

Funding for the purchase of the Class A Shares by Mr. Garcia was from Mr. Garcia’s personal funds and the source of Verde’s funding was its working capital. Funding for the purchases of Class A Shares by the 2004 Trust and the Multi-Generational Trust was from the cash on hand of each trust and personal loans from Mr. Garcia to each trust, as described below.

On January 1, 2022, Mr. Garcia entered into a Multiple Advance Revolving Promissory Note with the 2004 Trust in an aggregate principal amount of up to $60,000,000 (the “2004 Trust Note”). The 2004 Trust made a net loan draw from the 2004 Trust Note in the principal amount of $51,200,000 to fund the 2004 Trust’s purchase of 850,000 Class A Shares. The outstanding balance of the loan, pursuant to the 2004 Trust Note, will bear interest at a rate of 1.3% per annum, with payments of interest annually. The loan matures on December 31, 2031.

On January 1, 2022, Mr. Garcia entered into a second Multiple Advance Revolving Promissory Note with the Multi-Generational Trust (the “MG Trust Note”). The Multi-Generational Trust made a net loan draw from the MG Trust Note in the principal amount of $50,500,000 to fund the Multi-Generational Trust’s purchase of 850,000 Class A Shares. The outstanding balance of the loan, pursuant to the MG Trust Note, will bear interest at a rate of 1.3% per annum, with payments of interest annually. The loan matures on December 31, 2031.

The foregoing descriptions of the 2004 Trust Note and MG Trust Note do not purport to be complete and are qualified in their entirety by reference to the copies of the 2004 Trust Note and MG Trust Note included as Exhibits 7.7 and 7.8 to this Schedule 13D.

Item 4. Purpose of Transaction

Item 4 of the Original Schedule 13D is hereby amended and restated in its entirety as follows:

The Reporting Persons acquired, and presently hold, the Class A Shares, the Class B Shares, and the Class A Units for investment purposes.

The Issuer and the Class A Unitholders entered into the Carvana Group LLC Agreement and the Exchange Agreement, pursuant to which the Class A Unitholders are entitled from time to time at their option to exchange Class A Units (together with their corresponding Class B Shares) for Class A Shares on a five-to-four basis (or, at the Issuer’s option, for cash).

The Reporting Persons have agreed, pursuant to lock-up agreements with the underwriters to the Issuer’s public offering (the “Lock-up Agreements”), that through 75 days after the date of the preliminary prospectus supplement filed by the Issuer with the SEC in connection with the public offering, subject to limited exceptions, the Reporting Persons will not, without the prior written consent of the underwriters, offer, pledge, assign, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract

to sell, grant any option, right or warrant to purchase, lend or otherwise transfer or dispose of the Class A Shares or Class B Shares, or any securities convertible into or exercisable or exchangeable for Class A Shares or Class B Shares, including units.

Except as disclosed in this Item 4, the Reporting Persons do not have any current plans or proposals that relate to or would result in any of the events described in clauses (a) through (j) of the instructions to Item 4 of Schedule 13D. The Reporting Persons, however, will take such actions with respect to the Reporting Persons’ investments in the Issuer as deemed appropriate in light of existing circumstances from time to time and reserve the right to acquire or dispose of securities of the Issuer, to enter into hedging or lending relationships with respect to such securities, or to formulate other purposes, plans, or proposals in the future depending on market conditions and/or other factors.

Item 5. Interest in Securities of the Issuer

Item 5 of the Original Schedule 13D is hereby amended and supplemented to include the following information:

The information set forth in Item 3 and on the cover pages of this Schedule 13D is incorporated by reference in its entirety into this Item 5.

(c) The transactions effected by the Reporting Persons in respect of Class A Shares since the most recent filing of the Reporting Persons on Schedule 13D are set forth on the following table.

Reporting Person

Transaction Date

Price Per Share

Price Per Share Range

Number of Shares⁽¹⁾

Ernest C. Garcia II

4/26/2022

80.00

N/A

5,062,500

⁽²⁾

Verde Investments, Inc.

4/26/2022

80.00

N/A

37,500

⁽³⁾

⁽¹⁾

The reported purchases were made by each Reporting Person above in a registered direct offering of Class A Shares by the Issuer. The Class A Shares were offered and sold by the Issuer pursuant to an automatically effective shelf registration statement on Form S-3, which was originally filed on April 20, 2022. The Issuer filed a final prospectus supplement with the Securities and Exchange Commission in connection with the sale of the Class A Shares on April 25, 2022 (File No. 333-231606).

⁽²⁾	This number includes the Class A Shares purchased by: (i) Mr. Garcia (3,362,500 shares); (ii) the 2004 Trust (850,000 shares); and (iii) the Multi-generational Trust (850,000 shares).

⁽³⁾	Beneficial ownership of the Class A Shares purchased by Verde is also attributable to Mr. Garcia as the sole shareholder and director of Verde.

(d) Other persons have the right to receive or the power to direct the receipt of dividends from, or the proceeds from the sale of, certain of the Class A Shares that are beneficially owned by the Reporting Persons. Specifically, but without limitation, Ernie Garcia III is a voting co-trustee of the 2004 Trust and shares dispositive power over the Class A Shares held by the 2004 Trust. He also is the sole beneficiary of the 2004 Trust. Ernie Garcia III is a voting co-trustee of the Multi-Generational Trust and shares dispositive power over the Class A Shares held by the Multi-Generational Trust. He and his children also have the right to receive distributions from the Multi-Generational Trust in respect of their status as beneficiaries thereof.

(e) Not applicable.

Item 6. Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the Issuer

Item 6 of the Original Schedule 13D is hereby amended and supplemented to include the following information:

Pursuant to the Lock-Up Agreements, the Reporting Persons have agreed that for 75 days after the date of the preliminary prospectus supplement filed by the Issuer with the SEC in connection with the public offering, subject to limited exceptions, they will not, without the prior written consent of the underwriters, transfer, dispose of, or hedge any of the shares of Class A Shares, Class B Shares, units, or other securities convertible into or exchangeable for, or that represent the right to receive, Class A Shares, Class B Shares, or units.

The descriptions of the 2004 Trust Note and MG Trust Note in Item 3 are hereby incorporated into this Item 6 by reference and are qualified in their entirety by reference to the copies of the 2004 Trust Note and MG Trust Note included as Exhibits 7.7 and 7.8 to this Schedule 13D.

Item 7. Materials to Be Filed as Exhibits

Item 7 of the Original Schedule 13D is hereby amended and supplemented to include the following exhibits:

7.7	Multiple Advance Revolving Promissory Note dated January 1, 2022, by and between Mr. Garcia and the Ernest Irrevocable 2004 Trust III.

7.8	Multiple Advance Revolving Promissory Note dated January 1, 2022, by and between Mr. Garcia and the Ernest C. Garcia III Multi-Generational Trust III.

SIGNATURE

After reasonable inquiry and to the best of my knowledge and belief, each of the undersigned certifies that the information set forth in the Statement is true, complete and correct.

Date: April 29, 2022


/s/ Ernest C. Garcia II
Ernest C. Garcia II

Verde Investments, Inc.

By:		/s/ Ernest C. Garcia II
		Ernest C. Garcia II
		President

ECG II SPE, LLC

By:		/s/ Ernest C. Garcia II
		Ernest C. Garcia II
		President

EX-7.7 2 d193123dex77.htm EX-7.7 EX-7.7

Exhibit 7.7

THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE SECURITIES LAWS AND MAY NOT BE OFFERED FOR SALE, SOLD, TRANSFERRED, OR ASSIGNED (I) IN THE ABSENCE OF (A) AN EFFECTIVE REGISTRATION STATEMENT FOR THIS NOTE UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR (B) AN OPINION OF COUNSEL, IN A GENERALLY ACCEPTABLE FORM, THAT REGISTRATION IS NOT REQUIRED UNDER SUCH ACT AND APPLICABLE STATE SECURITIES LAWS OR (II) UNLESS SOLD PURSUANT TO RULE 144(K) UNDER SUCH ACT.

MULTIPLE ADVANCE REVOLVING

PROMISSORY NOTE


$60,000,000.00		January 1, 2022

FOR VALUE RECEIVED, Ernest C Garcia III Multi-Generational Trust III (“Borrower”), hereby promises to pay to the order of Ernest C Garcia II, a resident of Texas (“Lender”), the principal sum of Sixty Million Dollars ($60,000,000.00) or so much thereof as may be advanced from time to time (“Principal”), and interest thereon at a fixed rate per annum described herein (“Interest”), all in United States currency. All payments under this Promissory Note shall be made to Lender at 100 Crescent Court, Suite 1100, Dallas, TX 75201 or at such other address as Lender may designate from time to time.

1. Loan. This Promissory Note evidences a multiple advance revolving line of credit loan extended by Lender to Borrower (the “Loan”).

2. Loan Advances. The Loan is a multiple advance loan. Advances may be made in amounts and at times requested by Borrower not less than five days prior to the date of the advance. The total of all advances shall not exceed $60,000,000.00) without Lender’s express written consent, which consent may be granted or denied in Lender’s sole discretion. All Advances shall be included in the Principal. The Loan is a revolving loan and Principal borrowed and repaid to Lender during the term of the Loan may be reborrowed during the term of the Loan, but not thereafter. The term of the Loan shall expire on December 1, 2031 (the “Maturity Date”). The Maturity Date may be extended only with the written consent of Lender and Borrower.

3. Interest. Interest shall accrue on Principal amounts advanced and outstanding at a per annum rate equal to the Applicable Federal Rate as of the date hereof, which rate is one and three-tenths percent (1.30%) (“Interest Rate”). Interest shall be computed on a per annum basis of a year of 365 days and for the actual number of days elapsed.

4. Payments. This Promissory Note shall be payable in annual installments of Interest only. On the last day of each calendar year, Borrower shall pay all accrued and unpaid Interest by either (a) payment to Lender or (b) advance of the Loan in the amount of all accrued and unpaid Interest. If on the last day of a calendar year Lender does not receive payment of Interest, then on the next day Lender, at Lender’s option, may make an advance in the amount of all accrued and unpaid Interest and such advance shall be added to the Principal. If the due date of any payment is on a day other than a business day, such payment shall be due and made on the next succeeding business day but such extension of time for payment shall not constitute a waiver of any Interest. All Principal and all accrued and unpaid Interest shall be due and payable no later than the Maturity Date. Principal may be prepaid at any time. In the event any payment becoming due hereunder is not made in full within 10 days after receipt of notice from Lender that such payment is late, then without prejudice to any other remedy available to the Lender, Borrower shall immediately pay to Lender a charge of five percent of the amount due and not paid to compensate Lender for the delay and inconvenience caused by the late payment (the “Late Charge”). The Late Charge shall not be applied to but shall be in addition to Principal and Interest.

VI.Commercial Loans:MG Trust

5. Events of Default. Each of the following events shall constitute a material default under this Promissory Note (“Events of Default”).

(a) The Borrower fails to pay any amount or perform any obligation under this Promissory Note and does not cure that failure within 10 days after written notice from the Lender; or

(b) The Borrower shall apply for, consent to, or allow, the appointment of a trustee, receiver, sequestrator or other custodian for the Borrower, or make a general assignment for the benefit of creditors; or

(c) The Borrower shall permit or suffer to exist the commencement of bankruptcy, reorganization, debt arrangement or other case or proceeding under any bankruptcy or insolvency law, except for any involuntary proceeding initiated or consented to by the Lender, or any dissolution, winding up or liquidation proceeding in respect of the Borrower; or

(d) Borrower breaches any representation, warranty or covenant of Borrower stated in this Promissory Note and Borrower has not cured such breach within 30 days, or any longer cure period provided herein, after written notice from Lender.

6. Remedies. Upon the occurrence of an Event of Default, Lender shall have the following rights and remedies.

(a) Interest shall automatically accrue at the rate of 6.0% per annum (the “Default Interest”) and the outstanding Principal, all accrued and unpaid Interest, all unpaid Late Charges and all other amounts payable pursuant hereto shall then accrue Default Interest from the date of occurrence of the Event of Default until the Event of Default is fully cured or, if payment of all amounts due hereunder has been accelerated, then until this Promissory Note is paid in full.

(b) Lender may accelerate the Maturity Date and demand immediate payment of all amounts due under the Promissory Note, all without additional notice, demand or cure period.

(c) Lender may, but shall not be required to, perform any obligation and or pay any amount that Lender determines is reasonably required to cure any or all defaults of Borrower, and all amounts paid and costs incurred by Lender in curing any and all defaults of Borrower shall be included in this Promissory Note and shall be payable by Borrower, together with Default Interest until paid.

(d) Lender may exercise all other rights and remedies of Lender at law or in equity and this Promissory Note is a full recourse obligation enforceable by Lender against Borrower.

7. Representations, Warranties and Covenants of Borrower. As of the date hereof and at all times until all amounts payable hereunder are paid in full, Borrower represents, warrants and covenants unto Lender as follows:

(a) Borrower is a trust duly organized and validly existing under the laws of the State of Arizona.

VI.Commercial Loans:MG Trust

(b) The execution, delivery and performance of this Promissory Note are within the Borrower’s powers and have been duly authorized by all necessary action of Borrower. .

(c) This Promissory Note has been duly executed and delivered by Borrower and is a legally valid and binding obligation of Borrower enforceable against Borrower in accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency, reorganization, or similar laws affecting creditor’s rights generally and by general principals of equity.

8. Governing Law. This Promissory Note is governed by the laws of the State of Arizona.

9. No Waiver. If the Lender delays in exercising or fails to exercise any of its rights under this Promissory Note, such delay or failure shall not constitute a waiver of any of the Lender’s rights, or of any breach, default or failure of condition of or under this Promissory Note. No waiver by the Lender of any of its rights, or of any such breach, default or failure of condition shall be effective, unless the waiver is expressly stated in a writing signed by the Lender. All of the Lender’s remedies in connection with this Promissory Note or under applicable law shall be cumulative, and the Lender’s exercise of any one or more of those remedies shall not constitute an election of remedies.

10. Binding Effect. This Promissory Note inures to the benefit of, and binds, the respective successors and assigns of the Borrower and the Lender.

11. Attorney’s Fees and Costs. Upon the occurrence of any Event of Default, if an attorney is retained by Lender to enforce this Promissory Note or to represent Lender in any legal action relating to this Promissory Note or Borrower, then Borrower shall pay to Lender all reasonable attorney’s fees and costs incurred by Lender, whether or not any judicial proceeding has been commenced.

12. Notice. Any notice to Borrower provided for in this Promissory Note shall be given by personal delivery, by mailing such notice by certified mail addressed to Borrower at the address stated below or by “overnight” delivery service. Notices shall be deemed delivered and received upon actual receipt in the case of personal delivery, within three (3) days after deposit into the Untied States mail or within twenty-four (24) hours after delivery to an “overnight” delivery service.

13. Time. Time is of the essence of each term of this Promissory Note.

14. Modification and Assignment. This Promissory Note may not be amended and no obligation hereunder shall be discharged or waived unless such amendment, discharge or waiver is evidenced by a written instrument signed by any of the entities constituting Lender.


Borrower:	Ernest C Garcia III Multi-Generational Trust III
	1720 W. Rio Salado Parkway, Tempe, AZ 85281

	By:
		Steven P. Johnson
		Co-Administrative Trustee

VI.Commercial Loans:MG Trust

EX-7.8 3 d193123dex78.htm EX-7.8 EX-7.8

Exhibit 7.8

MULTIPLE ADVANCE REVOLVING

PROMISSORY NOTE


$60,000,000.00				January 1, 2022

FOR VALUE RECEIVED, Ernest Irrevocable 2004 Trust III (“Borrower”), hereby promises to pay to the order of Ernest C Garcia II, a resident of Texas (“Lender”), the principal sum of Sixty Million Dollars ($60,000,000.00) or so much thereof as may be advanced from time to time (“Principal”), and interest thereon at a fixed rate per annum described herein (“Interest”), all in United States currency. All payments under this Promissory Note shall be made to Lender at 100 Crescent Court, Suite 1100, Dallas, TX 75201, or at such other address as Lender may designate from time to time.

1. Loan. This Promissory Note evidences a multiple advance revolving line of credit loan extended by Lender to Borrower (the “Loan”).

VI.Commercial Loans:ECG Irrev. Trust

5. Events of Default. Each of the following events shall constitute a material default under this Promissory Note (“Events of Default”).

(a)The Borrower fails to pay any amount or perform any obligation under this Promissory Note and does not cure that failure within 10 days after written notice from the Lender; or

(b)The Borrower shall apply for, consent to, or allow, the appointment of a trustee, receiver, sequestrator or other custodian for the Borrower, or make a general assignment for the benefit of creditors; or

(c)The Borrower shall permit or suffer to exist the commencement of bankruptcy, reorganization, debt arrangement or other case or proceeding under any bankruptcy or insolvency law, except for any involuntary proceeding initiated or consented to by the Lender, or any dissolution, winding up or liquidation proceeding in respect of the Borrower; or

(d)Borrower breaches any representation, warranty or covenant of Borrower stated in this Promissory Note and Borrower has not cured such breach within 30 days, or any longer cure period provided herein, after written notice from Lender.

6. Remedies. Upon the occurrence of an Event of Default, Lender shall have the following rights and remedies.

(a)Interest shall automatically accrue at the rate of 6.0% per annum (the “Default Interest”) and the outstanding Principal, all accrued and unpaid Interest, all unpaid Late Charges and all other amounts payable pursuant hereto shall then accrue Default Interest from the date of occurrence of the Event of Default until the Event of Default is fully cured or, if payment of all amounts due hereunder has been accelerated, then until this Promissory Note is paid in full.

(b)Lender may accelerate the Maturity Date and demand immediate payment of all amounts due under the Promissory Note, all without additional notice, demand or cure period.

(c)Lender may, but shall not be required to, perform any obligation and or pay any amount that Lender determines is reasonably required to cure any or all defaults of Borrower, and all amounts paid and costs incurred by Lender in curing any and all defaults of Borrower shall be included in this Promissory Note and shall be payable by Borrower, together with Default Interest until paid.

(d) Lender may exercise all other rights and remedies of Lender at law or in equity and this Promissory Note is a full recourse obligation enforceable by Lender against Borrower.

(a)Borrower is a trust duly organized and validly existing under the laws of the State of Arizona.

VI.Commercial Loans:ECG Irrev. Trust

(b)The execution, delivery and performance of this Promissory Note are within the Borrower’s powers and have been duly authorized by all necessary action of Borrower. .

(c)This Promissory Note has been duly executed and delivered by Borrower and is a legally valid and binding obligation of Borrower enforceable against Borrower in accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency, reorganization, or similar laws affecting creditor’s rights generally and by general principals of equity.

8. Governing Law. This Promissory Note is governed by the laws of the State of Arizona.

10. Binding Effect. This Promissory Note inures to the benefit of, and binds, the respective successors and assigns of the Borrower and the Lender.

13. Time. Time is of the essence of each term of this Promissory Note.

VI.Commercial Loans:ECG Irrev. Trust