UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant
to Section 13 or 15(d)
of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): September 16, 2015
AutoNation, Inc.
(Exact
name of Registrant as Specified in Charter)
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Delaware |
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1-13107 |
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73-1105145 |
(State or Other Jurisdiction
of Incorporation) |
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(Commission
File Number) |
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(IRS Employer
Identification No.) |
200 SW 1st Ave
Ft. Lauderdale, Florida 33301
(Address of principal executive offices, including zip code)
Registrants telephone number, including area code (954) 769-6000
Not Applicable
(Former
Name or Former Address, if Changed Since Last Report)
Check the appropriate box below
if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
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Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
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Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
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Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
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Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Item 1.01 Entry into a Material Definitive Agreement.
On September 21, 2015, AutoNation, Inc. (the Company) closed its sale of $300.0 million aggregate principal amount of 3.350% Senior Notes due
2021 (the 2021 Notes) and $450.0 million aggregate principal amount of 4.500% Senior Notes due 2025 (the 2025 Notes and together with the 2021 Notes, the Notes), pursuant to an underwriting agreement (the
Underwriting Agreement), entered into on September 16, 2015, by and among the Company, the Companys subsidiary guarantors named therein (the Guarantors) and J.P. Morgan Securities LLC, Merrill Lynch, Pierce,
Fenner & Smith Incorporated, Wells Fargo Securities, LLC and SunTrust Robinson Humphrey, Inc., and the other several underwriters listed in Schedule A thereto. The 2021 Notes were issued at 99.998% of the aggregate principal amount,
representing a yield to maturity of 3.351%, and the 2025 Notes were issued at 99.663% of the aggregate principal amount, representing a yield to maturity of 4.542%. The Notes were sold pursuant to the Companys registration statement on Form
S-3 (File No. 333-193972) filed with the U.S. Securities and Exchange Commission (the SEC).
Certain affiliates of each of the
underwriters act as agents or lenders under the revolving credit facilities of the Companys credit agreement. In addition, certain affiliates of the underwriters act as agents or lenders for certain of the Companys vehicle floorplan
facilities. Some of the underwriters and their affiliates have engaged in, and may in the future engage in, investment banking and other commercial dealings in the ordinary course of business with the Company or its affiliates. They have received,
or may in the future receive, customary fees and commissions for these transactions.
The Notes were issued under a senior indenture, dated as of
April 14, 2010 (the Base Indenture), between the Company and Wells Fargo Bank, National Association, as trustee (the Trustee), as amended and supplemented, with respect to the 2021 Notes, by a supplemental indenture
entered into on September 21, 2015 by and among the Company, the Trustee and the Guarantors (the 2021 Notes Supplemental Indenture and together with the Base Indenture, the 2021 Notes Indenture) and, as amended and
supplemented, with respect to the 2025 Notes, by a supplemental indenture entered into on September 21, 2015 by and among the Company, the Trustee and the Guarantors (the 2025 Notes Supplemental Indenture and together with the Base
Indenture, the 2025 Notes Indenture). The 2021 Notes Indenture and the 2025 Notes Indenture are referred to collectively as the Indentures.
The 2021 Notes will mature on January 15, 2021 and bear interest at a rate equal to 3.350% per year, payable on January 15 and July 15 of
each year, beginning on January 15, 2016. The 2025 Notes will mature on October 1, 2025 and bear interest at a rate equal to 4.500% per year, payable on April 1 and October 1 of each year, beginning on April 1, 2016.
The interest rate payable on the Notes is subject to adjustment upon the occurrence of certain credit rating events as provided in the Indentures. The Notes are guaranteed by substantially all of the Companys subsidiaries. Such subsidiary
guarantees may be released in certain circumstances as set forth in the Indentures. The Indentures contain certain restrictive covenants that, among other things, limit the ability of the Company to incur liens, enter into sale and leaseback
transactions and merge, consolidate or transfer all or substantially all of its assets.
The Underwriting Agreement, the Base Indenture, the 2021
Supplemental Indenture (which includes the Form of 3.350% Senior Notes due 2021) and the 2025 Supplemental
Indenture (which includes the Form of 4.500% Senior Notes due 2025) are exhibits hereto, and each is incorporated herein by reference. The descriptions of the provisions of the Underwriting
Agreement and the Indentures are summary in nature and are qualified in their entirety by reference to the provisions of such agreements.
Item 2.03 Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant.
The information provided in Item 1.01 with respect to the Companys issuance of the Notes is incorporated by reference herein.
Item 9.01 Financial Statements and Exhibits.
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Exhibit
Number |
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Description |
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1.1 |
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Underwriting Agreement, dated September 16, 2015, by and among the Company, the Companys subsidiary guarantors named therein and J.P. Morgan Securities LLC, Merrill Lynch, Pierce, Fenner & Smith Incorporated, Wells Fargo
Securities, LLC and SunTrust Robinson Humphrey, Inc., and the other several underwriters listed in Schedule A thereto. |
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4.1 |
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Indenture, dated as of April 14, 2010, between AutoNation, Inc. and Wells Fargo Bank, National Association, as trustee (incorporated by reference to Exhibit 4.1 to the Current Report on Form 8-K filed on April 15, 2010). |
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4.2 |
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2021 Notes Supplemental Indenture, dated as of September 21, 2015. |
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4.3 |
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2025 Notes Supplemental Indenture, dated as of September 21, 2015. |
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5.1 |
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Opinion of Skadden, Arps, Slate, Meagher & Flom LLP. |
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5.2 |
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Opinion of C. Coleman G. Edmunds. |
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23.1 |
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Consent of Skadden, Arps, Slate, Meagher & Flom LLP (included in Exhibit 5.1). |
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23.2 |
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Consent of C. Coleman G. Edmunds (included in Exhibit 5.2). |
Certain of the agreements listed as exhibits to this Form 8-K (including the schedules and exhibits to such agreements), which
are being filed to provide investors with information regarding their terms, contains various representations, warranties and covenants of the Company and the other parties thereto. They are not intended to provide any factual information about any
of the parties thereto or any subsidiaries of the parties thereto. The assertions embodied in those representations, warranties and covenants were made for
purposes of each of the agreements, solely for the benefit of the parties thereto. In addition, certain representations and warranties were made as of a specific date, may be subject to a
contractual standard of materiality different from what a security holder might view as material, or may have been made for purposes of allocating contractual risk among the parties rather than establishing matters as facts. Investors should not
view the representations, warranties and covenants in the agreements (or any description thereof) as disclosures with respect to the actual state of facts concerning the business, operations or condition of any of the parties to the agreements (or
their subsidiaries) and should not rely on them as such. In addition, information in any such representations, warranties or covenants may change after the dates covered by such provisions, which subsequent information may or may not be fully
reflected in the public disclosures of the parties. In any event, investors should read the agreements together with the other information concerning the Company contained in reports and statements that it files with the SEC.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by
the undersigned hereunto duly authorized.
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Date: September 21, 2015 |
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AUTONATION, INC. |
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By: |
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/s/ Jonathan P. Ferrando |
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Name: |
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Jonathan P. Ferrando |
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Title: |
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Executive Vice President - General
Counsel, Corporate Development and Human Resources |
EXHIBIT INDEX
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Exhibit
Number |
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Description |
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1.1 |
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Underwriting Agreement, dated September 16, 2015, by and among the Company, the Companys subsidiary guarantors named therein and J.P. Morgan Securities LLC, Merrill Lynch, Pierce, Fenner & Smith Incorporated, Wells Fargo
Securities, LLC and SunTrust Robinson Humphrey, Inc., and the other several underwriters listed in Schedule A thereto. |
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4.1 |
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Indenture, dated as of April 14, 2010, between AutoNation, Inc. and Wells Fargo Bank, National Association, as trustee (incorporated by reference to Exhibit 4.1 to the Current Report on Form 8-K filed on April 15, 2010). |
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4.2 |
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2021 Notes Supplemental Indenture, dated as of September 21, 2015. |
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4.3 |
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2025 Notes Supplemental Indenture, dated as of September 21, 2015. |
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5.1 |
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Opinion of Skadden, Arps, Slate, Meagher & Flom LLP. |
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5.2 |
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Opinion of C. Coleman G. Edmunds. |
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23.1 |
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Consent of Skadden, Arps, Slate, Meagher & Flom LLP (included in Exhibit 5.1). |
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23.2 |
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Consent of C. Coleman G. Edmunds (included in Exhibit 5.2). |
Exhibit 1.1
Execution Version
AutoNation, Inc.
UNDERWRITING AGREEMENT
dated September 16, 2015
J.P. Morgan Securities LLC
Merrill Lynch, Pierce, Fenner & Smith Incorporated
Wells Fargo Securities, LLC
SunTrust Robinson Humphrey, Inc.
Underwriting Agreement
September 16, 2015
J.P. MORGAN SECURITIES
LLC
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
WELLS FARGO SECURITIES, LLC
As Representatives of the several Underwriters
c/o J.P. Morgan Securities LLC
383 Madison Avenue
New York, New York 10179
Merrill Lynch, Pierce,
Fenner & Smith
Incorporated
One
Bryant Park
New York, New York 10036
Wells Fargo
Securities, LLC
550 South Tryon Street
Charlotte, North
Carolina 28202
SunTrust Robinson Humphrey, Inc.
3333
Peachtree Road NE, 11th Floor
Atlanta, Georgia 30326
Ladies and Gentlemen:
Introductory.
AutoNation, Inc., a Delaware corporation (the Company), proposes to issue and sell to the several underwriters named in Schedule A hereto (the Underwriters), for whom you (the
Representatives) are acting as representatives, $300,000,000 principal amount of its 3.350% Senior Notes due 2021 (the 2021 Notes) and $450,000,000 principal amount of its 4.500% Senior Notes due 2025 (the
2025 Notes and, together with the 2021 Notes, the Notes). The Notes will be guaranteed (collectively, the Guarantees) by each of the subsidiary guarantors named in Schedule B hereto
(the Guarantors). The Notes and the Guarantees are collectively referred to herein as the Securities. The Securities will be issued pursuant to an indenture dated as of April 14, 2010 (as defined in
Section 4 hereof) (the Base Indenture), among the Company, the Guarantors and Wells Fargo Bank, N.A., as trustee (the Trustee). Certain terms of the Securities will be established pursuant to supplemental
indentures dated as of the Closing Date (the Supplemental Indentures) to the Base Indenture (together with the Base Indenture, the Indenture). To the extent there are no additional underwriters listed on
Schedule A other than you, the term Representatives as used herein shall mean you as the Underwriters, and the terms Representatives and Underwriters shall mean either the singular or plural as the context requires. The use of the
neuter in this Underwriting Agreement (the Agreement) shall include the feminine and masculine wherever appropriate.
1. Representations and Warranties. The Company and each Guarantor, jointly and severally,
represent and warrant to, and agree with, each of the Underwriters as of the date hereof that:
(a) The Company has prepared and
filed with the Securities and Exchange Commission (the Commission) a registration statement on Form S-3 (File No. 333-193972), which contains a base prospectus (the Base
Prospectus), to be used in connection with the public offering and sale of the Securities. Such registration statement, as amended, including the financial statements, exhibits and schedules thereto, at each time of effectiveness under the
Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder (collectively, the Securities Act), including any required information deemed to be a part thereof at the time of effectiveness pursuant to
Rule 430B or 430C under the Securities Act or the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder (collectively, the Exchange Act), is called the Registration
Statement. Any preliminary prospectus supplement relating to the Securities that is filed with the Commission pursuant to Rule 424(b), together with the Base Prospectus, is hereafter called a Preliminary Prospectus. The
term Prospectus shall mean the final prospectus supplement relating to the Securities that is first filed pursuant to Rule 424(b) after the date and time that this Agreement is executed and delivered by the parties hereto,
including the Base Prospectus. Any reference herein to the Registration Statement, any Preliminary Prospectus or the Prospectus shall be deemed to refer to and include the documents incorporated by reference therein pursuant to Item 12 of Form S-3 under the Securities Act; any reference to any amendment or supplement to any Preliminary Prospectus or the Prospectus shall be deemed to refer to and include any documents filed after the date of such
Preliminary Prospectus or Prospectus, as the case may be, under the Exchange Act, and incorporated by reference in such Preliminary Prospectus or Prospectus, as the case may be; and any reference to any amendment to the Registration Statement shall
be deemed to refer to and include any annual report of the Company filed pursuant to Section 13(a) or 15(d) of the Exchange Act after the effective date of the Registration Statement that is incorporated by reference in the Registration
Statement.
(b) Compliance with Registration Requirements. The Company meets the requirements for use of Form S-3 under the Securities Act. The Registration Statement has become effective upon filing with the Commission under the Securities Act. No stop order suspending the effectiveness of the Registration Statement is in
effect, the Commission has not issued any order or notice preventing or suspending the use of the Registration Statement, any Preliminary Prospectus or the Prospectus and no proceedings for such purpose or pursuant to Section 8A of the
Securities Act have been instituted or are pending or, to the knowledge of the Company and the Guarantors, are contemplated or threatened by the Commission.
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Each of the Preliminary Prospectus and the Prospectus when filed complied in all material
respects with the Securities Act. Each of the Registration Statement and any post-effective amendment thereto, at each time of effectiveness, at the date hereof and at the Closing Date, complied and will comply in all material respects with the
Securities Act and did not and will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading. The Preliminary Prospectus as
of the time of filing pursuant to Rule 424(b) and the Prospectus, as amended or supplemented, as of its date, at the time of any filing pursuant to Rule 424(b) and, at the Closing Date, did not and will not contain any untrue statement of a material
fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The representations and warranties set forth in the two immediately preceding
sentences do not apply to statements in or omissions from the Registration Statement or any post-effective amendment thereto, or the Preliminary Prospectus or the Prospectus, or any amendments or supplements thereto, made in reliance upon and in
conformity with information relating to any Underwriter furnished to the Company in writing by the Representatives expressly for use therein, it being understood and agreed that the only such information furnished by the Representatives consists of
the information described as such in Section 8(b) hereof.
The documents incorporated by reference in the Registration Statement, the
Disclosure Package (as defined herein) and the Prospectus, when they were filed with the Commission conformed in all material respects to the requirements of the Exchange Act. Any further documents so filed and incorporated by reference in the
Registration Statement, the Disclosure Package and the Prospectus or any further amendment or supplement thereto, when such documents are filed with the Commission will conform in all material respects to the requirements of the Exchange Act. All
documents incorporated or deemed to be incorporated by reference in the Registration Statement, the Disclosure Package and the Prospectus, as of their respective dates, when taken together with the other information in the Disclosure Package, at the
Applicable Time and, when taken together with the other information in the Prospectus, at the Closing Date, did not or will not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not misleading.
(c) Well-Known Seasoned Issuer.
(i) At the time of filing the Registration Statement, (ii) at the time of the most recent amendment thereto for the purposes of complying with Section 10(a)(3) of the Securities Act (whether such amendment was by post-effective
amendment, incorporated report filed pursuant to Section 13 or 15(d) of the Exchange Act or form of prospectus), (iii) at the time the Company or any person acting on its behalf (within the meaning, for this clause only, of
Rule 163(c) of the Securities Act) made any offer relating to the Securities in reliance on the exemption of Rule 163 of the Securities Act, and (iv) at the Applicable Time (as defined herein) (with such date and time being used
as the determination date for purposes of this clause (iv)), the Company was and is a well-known seasoned issuer as defined in Rule 405 of the Securities Act. The Registration Statement is an
automatic shelf registration statement, as defined in Rule 405 of the Securities Act that has been filed with the Commission not earlier than three years prior to the Closing Date; the Company has not received from the Commission
any notice pursuant to Rule 401(g)(2) of the Securities Act objecting to use of the automatic shelf registration statement form; and the Company has not otherwise ceased to be eligible to use the automatic shelf registration form.
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(d) Disclosure Package. The term Disclosure
Package shall mean (i) the Base Prospectus, including any Preliminary Prospectus, as amended or supplemented, (ii) the issuer free writing prospectuses as defined in Rule 433 of the Securities Act (each, an Issuer Free
Writing Prospectus), if any, identified in Schedule C hereto, (iii) any other free writing prospectus that the parties hereto shall hereafter expressly agree in writing to treat as part of the Disclosure Package and
(iv) the Final Term Sheet (as defined herein), which also shall be identified in Schedule C hereto. As of 5:00 p.m. (New York City time) on the date of this Agreement (the Applicable Time), the Disclosure Package
did not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The preceding sentence does
not apply to statements in or omissions from the Disclosure Package based upon and in conformity with written information furnished to the Company by any Underwriter through the Representatives specifically for use therein, it being understood and
agreed that the only such information furnished by or on behalf of any Underwriter consists of the information described as such in Section 8(b) hereof.
(e) Company Not Ineligible Issuer. (i) At the earliest time after the filing of the Registration Statement relating to the
Securities that the Company or another offering participant made a bona fide offer (within the meaning of Rule 164(h)(2) of the Securities Act and (ii) as of the Applicable Time (with such date being used as the determination date for
purposes of this clause (ii)), the Company was not and is not an ineligible issuer (as defined in Rule 405 of the Securities Act), without taking account of any determination by the Commission pursuant to Rule 405 of the Securities Act
that it is not necessary that the Company be considered an ineligible issuer.
(f) Issuer Free Writing Prospectuses.
Each Issuer Free Writing Prospectus, as of its issue date and at all subsequent times through the completion of the offering of Securities under this Agreement or until any earlier date that the Company notified or notifies the Representatives
as described in the next sentence, did not, does not and will not include any information that conflicted, conflicts or will conflict with the information contained in the Registration Statement, the Disclosure Package or the Prospectus. If at any
time following issuance of an Issuer Free Writing Prospectus there occurred or occurs an event or development as a result of which such Issuer Free Writing Prospectus conflicted or would conflict with the information contained in the Registration
Statement, the Disclosure Package or the Prospectus, the Company has promptly notified or will promptly notify the Representatives and has promptly amended or supplemented or will promptly amend or supplement, at its own expense, such Issuer Free
Writing Prospectus to eliminate or correct such conflict. Any Issuer Free Writing Prospectus not identified on Schedule C, when taken together with the Disclosure Package, did not, and at the Closing Date will not, contain any untrue
statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The foregoing three sentences do not apply to statements
in or omissions from any Issuer Free Writing Prospectus based upon and in conformity with written information furnished to the Company by any Underwriter through the Representatives specifically for use therein, it being understood and agreed that
the only such information furnished by any Underwriter consists of the information described as such in Section 8(b) hereof.
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(g) Distribution of Offering Material by the Company and the Guarantors. Neither
the Company nor any Guarantor has distributed or will distribute, prior to the later of the Closing Date and the completion of the Underwriters distribution of the Securities, any offering material in connection with the offering and sale of
the Securities other than the Preliminary Prospectus, the Prospectus and any Issuer Free Writing Prospectus reviewed and consented to by the Representatives.
(h) Registration Rights. There are no holders of securities (debt or equity) of the Company or any Guarantor, or holders of
rights (including, without limitation, preemptive rights), warrants or options to obtain securities of the Company or any Guarantor, who in connection with the issuance, sale and delivery of the Notes and the Guarantees, and the execution, delivery
and performance of this Agreement, have the right to request the Company or any Guarantor to register securities held by them under the Securities Act.
(i) No Material Adverse Change in Business. Since the respective dates as of which information is given in the Disclosure Package
and the Prospectus (exclusive of any amendment or supplement thereto), except as otherwise stated therein, (A) there has been no material adverse change in the condition, financial or otherwise, or in the earnings or business affairs of the
Company and its subsidiaries considered as one enterprise or any development or event involving a prospective change with respect to the foregoing (a Material Adverse Effect), whether or not arising in the ordinary
course of business, (B) there have been no transactions entered into by the Company or any of its subsidiaries, other than those in the ordinary course of business, which are material with respect to the Company and its subsidiaries considered
as one enterprise, and (C) there has been no dividend or distribution of any kind declared, paid or made by the Company on any class of its capital stock.
(j) Good Standing of the Company. The Company has been duly organized and is validly existing as a corporation in good standing
under the laws of the State of Delaware and has corporate power and authority to own, lease and operate its assets and properties and to conduct its business as described in the Disclosure Package and the Prospectus and to enter into and perform its
obligations under this Agreement; and the Company is duly qualified as a foreign corporation to transact business and is in good standing in each other jurisdiction in which such qualification is required, whether by reason of the ownership or
leasing of property or the conduct of business, except where the failure so to qualify or to be in good standing would not result in a Material Adverse Effect.
(k) Good Standing of Subsidiaries. Each subsidiary of the Company is a corporation, limited liability company or partnership, as the
case may be, duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization, has corporate, limited liability company or partnership, as the case may be, power and authority to own, lease and operate its
assets and properties and to conduct its business as described in the Disclosure Package and the Prospectus and is duly qualified as a foreign corporation, limited liability
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company or partnership, as the case may be, to transact business and is in good standing in each jurisdiction in which such qualification is required, whether by reason of the ownership or
leasing of property or the conduct of business, except where the failure so to qualify or to be in good standing would not result in a Material Adverse Effect; except as otherwise disclosed in the Disclosure Package and the Prospectus, all of the
issued and outstanding capital stock or interests, as the case may be, of each subsidiary has been duly authorized and validly issued, is fully paid and non-assessable and is owned by the Company, directly or through subsidiaries, free and clear of
any security interest, mortgage, pledge, lien, encumbrance, claim or equity; none of the outstanding shares of capital stock or interests, as the case may be, of the subsidiaries was issued in violation of any preemptive or similar rights of any
securityholder of such subsidiary. The Company does not own a majority equity interest in or control, directly or indirectly, any corporation, association or other entity other than the subsidiaries listed in Exhibit 21 to the Companys Annual
Report on Form 10-K for the fiscal year ended December 31, 2014.
(l) Guarantors. Each subsidiary which is
or will be a Guarantor of the Securities is listed on Schedule B hereto and each of the Guarantors has all requisite corporate, limited liability company or partnership, as the case may be, power and authority to enter into and perform its
respective obligations under this Agreement, the Notes and the Indenture (including the Guarantees) (together, the Transaction Documents) to which it is a party.
(m) Capitalization. The shares of issued and outstanding capital stock of the Company have been duly authorized and validly
issued and are fully paid and non-assessable; and none of the outstanding shares of capital stock of the Company was issued in violation of the preemptive or other similar rights of any securityholder of the Company.
(n) Authorization of the Notes and the Guarantees. The Notes have been duly authorized by the Company and the Company has all requisite
corporate power and authority to execute, issue and deliver the Notes and to incur and perform its obligations provided for therein; the Guarantees have been duly authorized by each of the Guarantors and each of the Guarantors has all requisite
corporate, limited liability company or partnership, as the case may be, power and authority to execute, issue and deliver the Guarantees and to incur and perform its obligations provided for therein. At the Closing Date, the Notes will have been
duly executed by the Company and, when authenticated, issued and delivered in the manner provided for in the Indenture and delivered against payment of the purchase price therefor as provided in this Agreement, will constitute valid and binding
obligations of the Company, enforceable against the Company in accordance with their terms, except as the enforcement thereof may be limited by bankruptcy, insolvency (including, without limitation, all laws relating to fraudulent transfers),
reorganization, moratorium or similar laws affecting enforcement of creditors rights generally and except as enforcement thereof is subject to general principles of equity (regardless of whether enforcement is considered in a proceeding in
equity or at law), and will be in the form contemplated by, and entitled to the benefits of, the Indenture. At the Closing Date, the Guarantees of each Guarantor will have been duly endorsed on the Notes by each such Guarantor and, when the Notes
are authenticated, issued and delivered in the manner provided for in the Indenture and delivered against payment of the purchase price therefor as provided in this Agreement, upon such endorsement, the Guarantees will constitute valid and binding
obligations
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of the Guarantors, enforceable against the Guarantors in accordance with their terms, except as the enforcement thereof may be limited by bankruptcy, insolvency (including, without limitation,
all laws relating to fraudulent transfers), reorganization, moratorium or similar laws affecting enforcement of creditors rights generally and except as enforcement thereof is subject to general principles of equity (regardless of whether
enforcement is considered in a proceeding in equity or at law), and will be in the form contemplated by, and entitled to the benefits of, the Indenture.
(o) Authorization of the Indenture. The Base Indenture has been duly authorized, executed and delivered by the Company, the
Supplemental Indentures have been duly authorized by the Company and each of the Guarantors and, when the Supplemental Indentures are executed and delivered by the Company and each of the Guarantors and the Trustee, each of the Base Indenture and
the Supplemental Indentures will constitute valid and binding agreements of the Company and each of the Guarantors, enforceable against the Company and each of the Guarantors in accordance with its terms, except as the enforcement thereof may be
limited by bankruptcy, insolvency (including, without limitation, all laws relating to fraudulent transfers), reorganization, moratorium or similar laws affecting enforcement of creditors rights generally and except as enforcement thereof is
subject to general principles of equity (regardless of whether enforcement is considered in a proceeding in equity or at law). The Indenture has been duly qualified under the Trust Indenture Act of 1939, as amended (the Trust
Indenture Act).
(p) Description of the Notes, the Guarantees and the Indenture. The Notes, the
Guarantees and the Indenture conform in all material respects to the respective statements relating thereto contained in the Disclosure Package and the Prospectus under the caption Description of the Notes.
(q) Regulations T, U and X. None of the transactions contemplated by this Agreement (including, without limitation, the use of
the proceeds from the sale of the Securities) will violate or result in a violation of Section 7 of the Exchange Act, or any regulation promulgated thereunder, including, without limitation, Regulations T, U, and X of the Board of Governors of
the Federal Reserve System.
(r) Absence of Defaults and Conflicts. Neither the Company nor any of its subsidiaries is
(A) in violation of its charter or by-laws or similar organizational documents, except for such violations with respect to the Companys subsidiaries that would not result in a Material Adverse Effect, (B) in default in the
performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company or any of its
subsidiaries is a party or by which any of them may be bound or to which any of the property or assets of the Company or any of its subsidiaries is subject (collectively, Agreements and Instruments), except for such defaults that would
not result in a Material Adverse Effect, or (C) in violation of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over
the Company or any of the subsidiaries or any of their assets or properties, except for such violations that would not result in a Material Adverse Effect. The execution, delivery and
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performance of the Transaction Documents and any other agreement or instrument entered into or issued or to be entered into or issued by the Company or any of the Guarantors in connection with
the transactions contemplated hereby or thereby or in the Disclosure Package and the Prospectus and the consummation of the transactions contemplated herein and in the Disclosure Package and the Prospectus, as the case may be (including the issuance
and sale of the Notes, the issuance of the Guarantees, and the use of the proceeds from the sale of the Securities as described in the Disclosure Package and the Prospectus under the caption Use of Proceeds) and compliance by each of the
Company and the Guarantors with its respective obligations hereunder have been duly authorized by all necessary corporate, limited liability or partnership action, as the case may be, and do not and will not, whether with or without the giving of
notice or passage of time or both, conflict with or constitute a breach of, or default or a Repayment Event (as defined below) under, or, except as referred to in the Disclosure Package and the Prospectus, result in the creation or imposition of any
lien, charge or encumbrance upon any property or assets of the Company or any of its subsidiaries pursuant to, the Agreements and Instruments except for such conflicts, breaches or defaults or liens, charges or encumbrances that, singly or in the
aggregate, would not result in a Material Adverse Effect, nor will such action result in any violation of the provisions of the charter or by-laws or similar organizational documents of the Company or any of its subsidiaries or, in any material
respect, any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company or any of its subsidiaries or any of their
assets, properties or operations. As used herein, a Repayment Event means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holders behalf) the
right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company or any of its subsidiaries.
(s) Absence of Further Requirements. No filing with, or authorization, approval, consent, license, order, registration,
qualification or decree of, any court or governmental authority or agency is necessary or required for the performance by the Company and the Guarantors of their respective obligations hereunder, in connection with the offering, the issuance or sale
of the Notes, the issuance of the Guarantees hereunder or the consummation of the transactions contemplated by, or for the due execution, delivery or performance of, the Transaction Documents or any other agreement or instrument entered into or
issued or to be entered into or issued by the Company or any of its subsidiaries in connection with the consummation of the transactions contemplated herein and in the Disclosure Package and the Prospectus (including the issuance and sale of the
Securities and the use of the proceeds from the sale of the Securities as described in the Disclosure Package and the Prospectus under the caption Use of Proceeds), except (i) such as have already been obtained or made or
(ii) such as may be required pursuant to Rule 424 and Rule 433 under the Securities Act, under state securities laws or the rules of the Financial Industry Regulatory Authority, Inc. (FINRA), (iii) where
the failure to make or obtain any such filing, authorization, approval, consent, license, order, registration, qualification or decree would not materially adversely affect the consummation of the transactions contemplated by this Agreement or the
performance by the Company and the Guarantors of their obligations under the Transaction Documents or reasonably be expected to result in a Material Adverse Effect.
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(t) Absence of Proceedings. Except as disclosed in the Disclosure Package and the
Prospectus, there is no action, suit, proceeding, inquiry or investigation before or brought by any court or governmental agency or body, domestic or foreign, now pending, or, to the knowledge of the Company and the Guarantors, threatened, against
or affecting the Company or any of its subsidiaries which would reasonably be expected to result in a Material Adverse Effect, or which would reasonably be expected to materially and adversely affect the properties or assets of the Company or any of
its subsidiaries or the consummation of the transactions contemplated by this Agreement or the performance by the Company and the Guarantors of their obligations under the Transaction Documents. The aggregate of all pending legal or governmental
proceedings to which the Company or any of its subsidiaries is a party or of which any of their respective property or assets is the subject which are not described in the Disclosure Package and the Prospectus including ordinary routine litigation
incidental to the business, would not reasonably be expected to result in a Material Adverse Effect.
(u) Reporting
Company. The Company is subject to and in compliance in all material respects with the reporting requirements of Section 13 or Section 15(d) of the Exchange Act.
(v) Independent Accountants. KPMG LLP, which expressed its opinion with respect to the financial statements (including the
related notes thereto) and supporting schedules filed with the Commission and included or incorporated by reference in the Registration Statement, the Disclosure Package and the Prospectus, are independent public accountants with respect to the
Company and its subsidiaries within the meaning of Regulation S-X under the Securities Act with respect to the Company, the Guarantors and their respective subsidiaries within the applicable rules and regulations adopted by the Commission and the
Public Accounting Oversight Board (United States) and as required by the Securities Act.
(w) Financial Statements. The
financial statements, together with the related schedules and notes, filed with the Commission as a part of or incorporated by reference in the Registration Statement and included or incorporated by reference in the Disclosure Package and the
Prospectus present fairly the financial position of the Company and its consolidated subsidiaries at the dates indicated and the results of operations, stockholders equity and cash flows of the Company and its consolidated subsidiaries for the
periods specified; said financial statements comply as to form with the applicable accounting requirements of Regulation S-X and have been prepared in conformity with generally accepted accounting principles (GAAP) applied on a
consistent basis throughout the periods involved. The supporting schedules, if any, included in or incorporated by reference in each of the Registration Statement, the Disclosure Package and the Prospectus present fairly in accordance with GAAP the
information required to be stated therein. The selected financial data and the summary historical financial information included or incorporated by reference in each of the Preliminary Prospectus and the Prospectus present fairly the information
shown therein and have been compiled on a basis consistent with that of the audited financial statements included or incorporated by reference in the Registration Statement. The Companys ratios of earnings to fixed charges set forth in each of
the Preliminary Prospectus and the Prospectus under the captions Ratio of Earnings to Fixed Charges and in Exhibit 12 to the Registration Statement have been calculated in compliance in
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all material respects with the requirements of Item 503(d) of Regulation S-K under the Securities Act. The interactive data in eXtensible Business Reporting Language included or incorporated
by reference in the Registration Statement, the Disclosure Package and the Prospectus fairly presents the information called for in all material respects and has been prepared in accordance with the Commissions rules and guidelines applicable
thereto.
(x) Agreement. This Agreement has been duly authorized, executed and delivered by the Company and each
Guarantor.
(y) Possession of Intellectual Property. The Company and its subsidiaries own or possess, or can acquire
on reasonable terms, adequate patents, patent rights, licenses, inventions, copyrights, know-how (including trade secrets and other unpatented and/or unpatentable proprietary or confidential information, systems or procedures), trademarks, service
marks, trade names or other intellectual property (collectively, Intellectual Property) necessary to carry on the business now operated by them, and neither the Company nor any of its subsidiaries has received any
notice or is otherwise aware of any infringement of or conflict with asserted rights of others with respect to any Intellectual Property or of any facts or circumstances which would render any Intellectual Property invalid or inadequate to protect
the interest of the Company or any of its subsidiaries therein, and which infringement or conflict (if the subject of any unfavorable decision, ruling or finding) or invalidity or inadequacy, singly or in the aggregate, would reasonably be expected
to result in a Material Adverse Effect.
(z) Possession of Licenses and Permits. The Company and its subsidiaries
possess such permits, licenses, approvals, consents and other authorizations (collectively, Governmental Licenses) issued by the appropriate federal, state, local or foreign regulatory agencies or bodies necessary to
conduct the business now operated by them; the Company and its subsidiaries are in compliance with the terms and conditions of all such Governmental Licenses, except where the failure so to possess or comply would not, singly or in the aggregate,
have a Material Adverse Effect; all of the Governmental Licenses are valid and in full force and effect, except where the invalidity of such Governmental Licenses or the failure of such Governmental Licenses to be in full force and effect would not
have a Material Adverse Effect; and neither the Company nor any of its subsidiaries has received any notice of proceedings relating to the revocation or modification of any such Governmental Licenses which, singly or in the aggregate, would
reasonably be expected to result in a Material Adverse Effect.
(aa) Title to Property. The Company and its subsidiaries have
good and marketable title to all real property owned by the Company and its subsidiaries and good title to all other properties owned by them, in each case, free and clear of all mortgages, pledges, liens, security interests, claims, restrictions or
encumbrances of any kind except such as are (a) described in the Disclosure Package and the Prospectus or (b) not, singly or in the aggregate, material to the business of the Company and its subsidiaries, considered as one enterprise.
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(bb) Tax Returns. All United States federal income tax returns of the Company and its
subsidiaries required by law to be filed have been filed and all taxes shown by such returns or pursuant to any assessment received by the Company or any subsidiary, which are due and payable, have been paid, except assessments against which appeals
have been or will be promptly taken and as to which adequate reserves have been provided. The Company and its subsidiaries have filed all other tax returns that are required to have been filed by them pursuant to applicable foreign, federal, state,
local or other law, except insofar as the failure to file such returns would not reasonably be expected to result in a Material Adverse Effect, and have paid all taxes due pursuant to such returns or pursuant to any assessment received by the
Company or any of its subsidiaries, except for such taxes, if any, as are being contested in good faith and as to which adequate reserves have been provided. The charges, accruals and reserves on the books of the Company in respect of all federal,
state, local and foreign tax liabilities of the Company and each subsidiary for any years not finally determined are adequate to meet any assessments or re-assessments for additional income tax for any years not finally determined, except to the
extent of any inadequacy that would not result in a Material Adverse Effect.
(cc) Investment Company Act. None of the
Company or the Guarantors is, and upon the issuance and sale of the Securities as herein contemplated and the application of the net proceeds therefrom as described in the Disclosure Package and the Prospects, none will be, an investment
company or an entity controlled by an investment company as such terms are defined in the Investment Company Act of 1940, as amended (the 1940 Act).
(dd) Insurance. The Company and its subsidiaries carry or are entitled to the benefits of insurance, with financially sound and
reputable insurers, or are self-insured with adequate reserves, in such amounts, with such limits, subject to such deductions and covering such risks as is generally maintained by companies of established repute engaged in the same or similar
business, and all such insurance is in full force and effect. The Company has no reason to believe that it or any subsidiary will not be able (i) to renew its existing insurance coverage as and when such policies expire or (ii) to obtain
comparable coverage from similar institutions as may be necessary or appropriate to conduct its business as now conducted and at a cost that would not result in a Material Adverse Effect.
(ee) No Restrictions on Dividends. No subsidiary of the Company is currently prohibited, directly or indirectly, from paying any
dividends to the Company, from making any other distribution on such subsidiarys shares of capital stock or other ownership interests, from repaying to the Company any loans or advances to such subsidiary from the Company, except as described
in or contemplated by the Disclosure Package and the Prospectus.
(ff) Stabilization or Manipulation. Neither the
Company nor any Guarantor has taken, directly or indirectly, any action designed to cause or to result in, or that has constituted or which might reasonably be expected to constitute, the stabilization or manipulation of the price of any security of
the Company or any Guarantor in order to facilitate the sale or resale of the Notes or the Guarantees.
(gg) Related Party
Transactions. To the Companys knowledge based on responses received from its directors and officers pursuant to director and officer questionnaires, no relationship, direct or indirect, exists between or among any of the Company, the
Guarantors or any affiliates of the Company or the Guarantors, on the one hand, and any director, officer,
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stockholder, customer or supplier of any of them, on the other hand, which is required by the Securities Act or by the rules and regulations enacted thereunder to be described in the Preliminary
Prospectus or the Prospectus which is not so described or is not described as required (including by means of incorporation by reference).
(hh) Disclosure Controls. The Company and its subsidiaries maintain an effective system of disclosure controls and
procedures (as defined in Rule 13a-15(e) of the Exchange Act) that is designed to provide reasonable assurance that information required to be disclosed by the Company in reports that it files or submits under the Exchange Act is recorded,
processed, summarized and reported within the time periods specified in the Commissions rules and forms, including controls and procedures designed to ensure that such information is accumulated and communicated to the Companys
management as appropriate to allow timely decisions regarding required disclosure. The Company and its subsidiaries have carried out evaluations of the effectiveness of their disclosure controls and procedures as required by Rule 13a-15 of the
Exchange Act.
(ii) Accounting Controls. The Company and its subsidiaries maintain systems of internal control
over financial reporting (as defined in Rule 13a-15(f) of the Exchange Act) that comply with the requirements of the Exchange Act and have been designed by, or under the supervision of, their respective principal executive and principal
financial officers, or persons performing similar functions, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with GAAP. Each of the
Company, the Guarantors and their subsidiaries maintains a system of internal accounting controls sufficient to provide reasonable assurance that (1) transactions are executed in accordance with managements general or specific
authorizations; (2) transactions are recorded as necessary to permit preparation of financial statements in conformity with GAAP and to maintain asset accountability; (3) access or disposal of assets is permitted only in accordance with
managements general or specific authorization; (4) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences except, in each case,
which inadequacy, singly or in the aggregate, would not reasonably be expected to result in a Material Adverse Effect; and (5) the interactive data in eXtensible Business Reporting Language included or incorporated by reference in the
Registration Statement, the Disclosure Package and the Prospectus fairly presents the information called for in all material respects and is prepared in accordance with the Commissions rules and guidelines applicable thereto.
(jj) No Material Weakness in Internal Controls. Since the end of the Companys most recent fiscal year, there has been (i) no
material weakness in the Companys internal control over financial reporting (whether or not remediated) and (ii) no change in the Companys internal control over financial reporting that has materially affected, or is reasonably
likely to materially affect, the Companys internal control over financial reporting.
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(kk) No Unlawful Contributions or Other Payments. Neither the Company nor any of its
subsidiaries nor, to the knowledge of the Company and the Guarantors, any director, officer, agent, employee or affiliate of the Company or any of its subsidiaries is aware of or has taken any action, directly or indirectly, that would result in a
violation by such persons of the FCPA (as defined below), including, without limitation, making use of the mails or any means or instrumentality of interstate commerce corruptly in furtherance of an offer, payment, promise to pay or authorization of
the payment of any money, or other property, gift, promise to give, or authorization of the giving of anything of value to any foreign official (as such term is defined in the FCPA) or any foreign political party or official thereof or
any candidate for foreign political office, in contravention of the FCPA, and the Company, its subsidiaries and, to the knowledge of the Company and the Guarantors, its affiliates have conducted their businesses in compliance with the FCPA and have
instituted and maintain policies and procedures designed to ensure, and which are reasonably expected to continue to ensure, continued compliance therewith. FCPA means the Foreign Corrupt Practices Act of 1977, as amended, and the
rules and regulations thereunder.
(ll) No Conflict with Money Laundering Laws. The operations of the Company and its
subsidiaries are and have been conducted at all times in compliance in all material respects with applicable financial recordkeeping and reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970, as amended, the money
laundering statutes of all applicable jurisdictions, the rules and regulations thereunder and any related or similar rules, regulations or guidelines issued, administered or enforced by any governmental agency (collectively, the
Money Laundering Laws) and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or any of its subsidiaries with respect to the Money
Laundering Laws is pending or, to the knowledge of the Company and the Guarantors, threatened.
(mm) No Conflict with
Sanctions Laws. None of the Company, any of its subsidiaries or, to the knowledge of the Company and the Guarantors, any director, officer, agent, employee or affiliate of the Company or any of its subsidiaries is currently the subject or target
of any sanctions administered or enforced by the United States Government, including, without limitation, the U.S. Department of the Treasurys Office of Foreign Assets Control (OFAC), the United Nations
Security Council (UNSC), the European Union, Her Majestys Treasury (HMT), or other relevant sanctions authority (collectively, Sanctions), nor
is the Company or any of its subsidiaries located, organized or resident in a country or territory that is the subject of Sanctions; and the Company will not, directly or indirectly, use the proceeds of the sale of the Securities, or lend,
contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other person, (i) to fund any activities of or business with any person, or in any country or territory, that, at the time of such funding, is the
subject of Sanctions or (ii) in any other manner that will result in a violation by any person (including any person participating in the transaction, whether as underwriter, advisor, investor or otherwise) of Sanctions.
(nn) Suppliers. No supplier of merchandise to the Company or any of the subsidiaries has ceased shipments of merchandise to the
Company or any of the subsidiaries, other than in the normal and ordinary course of business consistent with past practices, which cessation would not result in a Material Adverse Effect.
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(oo) Environmental Laws. Except as described in the Disclosure
Package and the Prospectus and except for such matters as would not, singly or in the aggregate, reasonably be expected to result in a Material Adverse Effect, (A) neither the Company nor any of its subsidiaries is in violation of any federal,
state, local or foreign statute, law, rule, regulation, ordinance, code, policy or rule of common law or any judicial or administrative interpretation thereof, including any judicial or administrative order, consent, decree or judgment, relating to
pollution or protection of human health, the environment (including, without limitation, ambient air, surface water, groundwater, land surface or subsurface strata) or wildlife, including, without limitation, laws and regulations relating to the
release or threatened release of chemicals, pollutants, contaminants, wastes, toxic substances, hazardous substances, petroleum or petroleum products (collectively, Hazardous Materials) or to the manufacture, processing,
distribution, use, treatment, storage, disposal, transport or handling of Hazardous Materials (collectively, Environmental Laws), (B) the Company and its subsidiaries have all permits, licenses, authorizations and approvals
required for their respective businesses under any applicable Environmental Laws and are each in compliance with their requirements, (C) there are no pending or, to the knowledge of the Company and the Guarantors, threatened administrative,
regulatory or judicial actions, suits, demands, demand letters, claims, liens, notices of noncompliance or violation, investigations or proceedings relating to any Environmental Law against the Company or any of its subsidiaries and (D) there
are no events, facts or circumstances that might reasonably be expected to form the basis of an order for clean-up or remediation, or an action, suit or proceeding by any private party or governmental body or agency, against or affecting the Company
or any of the subsidiaries relating to any Hazardous Materials or Environmental Laws.
(pp) Absence of Labor Dispute.
No labor dispute with the employees of the Company or any of its subsidiaries exists or, to the knowledge of the Company and the Guarantors, is imminent, which would reasonably be expected to result in a Material Adverse Effect.
(qq) Brokers. Other than the underwriting discount pursuant to Section 2 of this Agreement, there is no broker, finder or
other party that is entitled to receive from the Company any brokerage or finders fee or other fee or commission as a result of any transactions contemplated by this Agreement.
(rr) Sarbanes-Oxley Compliance. The Company, the Guarantors and their respective directors and officers, in their capacities as
such, are in compliance in all material respects with the applicable provisions of the Sarbanes-Oxley Act of 2002, as amended, and the rules and regulations promulgated in connection therewith (the Sarbanes-Oxley
Act), including Section 402 related to loans and Sections 302 and 906 related to certifications.
(ss)
Statistical and Market Related Data. Nothing has come to the attention of the Company that has caused the Company to believe that the statistical and market related data included in each of the Disclosure Package and the Prospectus are not
based on or derived from sources that are reliable and accurate in all material respects.
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(tt) Franchise Agreements. Each franchise agreement, in each case between a
subsidiary of the Company and the applicable manufacturer, has been duly authorized by the Company and such subsidiaries, and, as of the Closing Date, the Company shall have obtained all consents, authorizations and approvals from the manufacturers
required to consummate the Offering, except where the failure to obtain any such consents, authorizations and approvals would not reasonably be expected (x) to have a Material Adverse Effect and (y) to materially and adversely affect the
consummation of the transactions contemplated by this Agreement or the performance by the Company of its obligations under the Transaction Documents.
(uu) Officers Certificates. Any certificate signed by any officer of any of the Company, the Guarantors or any of their
respective subsidiaries delivered to the Representatives or to counsel for the Underwriters shall be deemed a representation and warranty by each of the Company and the Guarantors to each Underwriter as to the matters covered thereby.
2. Purchase and Sale. The Company agrees to issue and sell to the several Underwriters the Notes upon the terms herein set forth and, on
the basis of the representations, warranties and agreements and upon the terms but subject to the conditions herein set forth, the Underwriters agree, severally and not jointly, to purchase from the Company the respective aggregate principal amount
of Notes set forth opposite their names on Schedule A. The purchase price per 2021 Note to be paid by the several Underwriters to the Company shall be equal to 99.398% of the principal amount thereof and the purchase price per 2025 Note to be
paid by the several Underwriters to the Company shall be equal to 99.013% of the principal amount thereof].
3. Delivery and Payment;
Representations and Warranties and Covenants of the Underwriters.
(a) Delivery of certificates for the Notes to be purchased by
the Underwriters and payment therefor shall be made at the offices of Simpson Thacher & Bartlett LLP, 425 Lexington Avenue, New York, New York 10017 (or such other place as may be agreed to by the Company and the Representatives) at 9:00
a.m., New York time, on September 21, 2015, or such other time and date not later than 1:30 p.m., New York time, on October 6, 2015, as the Representatives shall designate by notice to the Company (the time and date of such closing are
called the Closing Date). Delivery of the Securities shall be made through the facilities of The Depository Trust Company (DTC) unless the Representatives shall otherwise instruct.
(b) Public Offering of the Notes. The Representatives hereby advise the Company that the Underwriters intend to offer for sale to
the public, as described in the Disclosure Package and the Prospectus, their respective portions of the Notes as soon after this Agreement has been executed the Representatives, in their sole judgment, have determined is advisable and
practicable.
(c) Payment for the Notes. Payment for the Notes shall be made on the Closing Date by wire transfer of
immediately available funds to the order of the Company.
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It is understood that the Representatives have been authorized, for their own account and the
accounts of the several Underwriters, to accept delivery of and receipt for, and make payment of the purchase price for, the Notes.
(d) Delivery of the Notes. Delivery of the Notes shall be made through the facilities of DTC unless the Representatives shall
otherwise instruct. Time shall be of the essence, and delivery at the time and place specified in this Agreement is a further condition to the obligations of the Underwriters.
(e) Delivery of Prospectus to the Underwriters. Not later than 10:00 a.m. (New York City time) on the second business day
following the date the Notes are first released by the Underwriters for sale to the public, the Company shall deliver or cause to be delivered, copies of the Prospectus in such quantities and at such places as the Representatives shall reasonably
request.
4. Covenants. The Company and the Guarantors, jointly and severally, covenant and agree with each of the
Underwriters as follows:
(a) Representatives Review of Proposed Amendments and Supplements. During the period beginning at
the Applicable Time and ending on the later of the Closing Date or such date, as in the opinion of counsel for the Underwriters, the Prospectus is no longer required by law to be delivered in connection with sales by an Underwriter or dealer,
including in circumstances where such requirement may be satisfied pursuant to Rule 172 (the Prospectus Delivery Period), prior to amending or supplementing the Registration Statement, the Disclosure Package or the
Prospectus, the Company shall furnish to the Representatives for review a copy of each such proposed amendment or supplement, and the Company shall not file or use any such proposed amendment or supplement to which the Representatives reasonably
object.
(b) Securities Act Compliance. After the date of this Agreement and during the Prospectus Delivery Period, the
Company shall promptly advise the Representatives in writing (i) when the Registration Statement, if not effective at the Applicable Time, shall have become effective, (ii) of the receipt of any comments of, or requests for additional or
supplemental information from, the Commission, (iii) of the time and date of any filing of any post-effective amendment to the Registration Statement or any amendment or supplement to any Preliminary Prospectus or the Prospectus, (iv) of
the time and date that any post-effective amendment to the Registration Statement becomes effective, and (v) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order or
notice preventing or suspending the use of the Registration Statement, any Preliminary Prospectus or the Prospectus, or of any receipt by the Company of any notification with respect to the suspension of the qualification of the Notes for sale in
any jurisdiction or of the threatening or initiation of any proceedings for any of such purposes (including any notice or order pursuant to Section 8A or Rule 401(g)(2) of the Securities Act). The Company shall use commercially reasonable
efforts to prevent the issuance of any such stop order or notice of prevention or suspension of such use. If the Commission shall enter any such stop order or issue
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any such notice at any time, the Company will use commercially reasonable efforts to obtain the lifting or reversal of such order or notice at the earliest possible moment, or, subject to
Section 4(a), will file an amendment to the Registration Statement or will file a new registration statement and use its best efforts to have such amendment or new registration statement declared effective as soon as practicable. Additionally,
the Company agrees that it shall comply with the provisions of Rules 424(b) and 430B, as applicable, under the Securities Act, including with respect to the timely filing of documents thereunder, and will use commercially reasonable efforts to
confirm that any filings made by the Company under such Rule 424(b) were received in a timely manner by the Commission.
(c)
Exchange Act Compliance. During the Prospectus Delivery Period, the Company will file all documents required to be filed with the Commission and the New York Stock Exchange pursuant to Section 13, 14 or 15 of the Exchange Act in the
manner and within the time periods required by the Exchange Act.
(d) Final Term Sheet. The Company will prepare a
final term sheet in a form approved by the Representatives, and will file such term sheet pursuant to Rule 433(d) under the Securities Act within the time required by such rule (such term sheet, the Final Term
Sheet).
(e) Permitted Free Writing Prospectuses. The Company represents that it has not made, and
agrees that, unless it obtains the prior written consent of the Representatives, it will not make, any offer relating to the Notes that constitutes or would constitute an Issuer Free Writing Prospectus or that otherwise constitutes or would
constitute a free writing prospectus (as defined in Rule 405 of the Securities Act) or a portion thereof required to be filed by the Company with the Commission or retained by the Company under Rule 433 of the Securities Act;
provided that the prior written consent of the Representatives hereto shall be deemed to have been given in respect of the Free Writing Prospectuses included in Schedule C hereto and any electronic road show. Any such free writing
prospectus consented to by the Representatives is hereinafter referred to as a Permitted Free Writing Prospectus. The Company agrees that (i) it has treated and will treat, as the case may be, each Permitted
Free Writing Prospectus as an Issuer Free Writing Prospectus, and (ii) has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 of the Securities Act applicable to any Permitted Free Writing Prospectus,
including in respect of timely filing with the Commission, legending and record keeping. The Company consents to the use by any Underwriter of a free writing prospectus that (a) is not an issuer free writing prospectus as defined in
Rule 433, or (b) contains only (1) information describing the preliminary terms of the Securities or their offering, (2) information that describes the final terms of the Securities or their offering and that is included in the
Final Term Sheet of the Company contemplated in Section 1(d) or (3) information permitted under Rule 134 under the Securities Act; provided that each Underwriter severally covenants with the Company not to take any action without
the Companys consent which consent shall be confirmed in writing that would result in the Company being required to file with the Commission under Rule 433(d) under the Securities Act a free writing prospectus prepared by or on behalf of such
Underwriter that otherwise would not be required to be filed by the Company thereunder, but for the action of the Underwriter.
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(f) Amendments and Supplements to the Registration Statement, Disclosure Package and
Prospectus and Other Securities Act Matters. If, during the Prospectus Delivery Period, any event or development shall occur or condition exist as a result of which the Disclosure Package or the Prospectus as then amended or supplemented would
include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein in the light of the circumstances under which they were made or then prevailing, as the case may be, not misleading,
or if it shall be necessary to amend or supplement the Disclosure Package or the Prospectus, or to file under the Exchange Act any document incorporated by reference in the Disclosure Package or the Prospectus, in order to make the statements
therein, in the light of the circumstances under which they were made or then prevailing, as the case may be, not misleading, or if in the opinion of the Company or the Representatives it is otherwise necessary to amend or supplement the
Registration Statement, the Disclosure Package or the Prospectus, or to file under the Exchange Act any document incorporated by reference in the Disclosure Package or the Prospectus, or to file a new registration statement containing the
Prospectus, in order to comply with law, including in connection with the delivery of the Prospectus, the Company agrees to (i) notify the Representatives of any such event or condition and (ii) promptly prepare (subject to
Section 4(a) and 4(e) hereof), file with the Commission (and use its reasonable efforts to have any amendment to the Registration Statement or any new registration statement to be declared effective) and furnish at its own expense to the
Underwriters and to dealers, amendments or supplements to the Registration Statement, the Disclosure Package or the Prospectus, or any new registration statement, necessary in order to make the statements in the Disclosure Package or the Prospectus
as so amended or supplemented, in the light of the circumstances under which they were made or then prevailing, as the case may be, not misleading or so that the Registration Statement, the Disclosure Package or the Prospectus, as amended or
supplemented, will comply with law.
(g) Copies of Any Amendments and Supplements to the Prospectus. The Company
agrees to furnish to the Representatives, without charge, during the Prospectus Delivery Period, as many copies of the Prospectus and any amendments and supplements thereto (including any documents incorporated or deemed incorporated by reference
therein) and the Disclosure Package as the Representatives may request.
(h) Copies of the Registration Statement and the
Prospectus. The Company will furnish to the Representatives and counsel for the Underwriters a conformed copy of the Registration Statement as originally filed and of each amendment thereto (excluding exhibits) and, during the Prospectus
Delivery Period, as many copies of each Preliminary Prospectus, the Prospectus and any supplement thereto and the Disclosure Package as the Representatives may reasonably request.
(i) Blue Sky Compliance. The Company and the Guarantors shall cooperate with the Representatives and counsel for the Underwriters to
qualify or register the Securities for sale under (or obtain exemptions from the application of) the state securities or blue sky laws or Canadian provincial securities laws or other foreign laws of those jurisdictions designated by the
Representatives and consented to by the Company, and the Company and the Guarantors shall
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comply in all material respects with such laws and shall continue such qualifications, registrations and exemptions in effect so long as required for the distribution of the Securities. Neither
the Company nor any Guarantor shall be required to (i) qualify as a foreign corporation or other entity or as a dealer in securities in any such jurisdiction where it would not otherwise be required to so qualify, (ii) file any general
consent to service of process in any such jurisdiction or (iii) subject itself to taxation in any such jurisdiction if it is not otherwise so subject. The Company and the Guarantors will advise the Representatives promptly of the suspension of
the qualification or registration of (or any such exemption relating to) the Securities for offering, sale or trading in any jurisdiction or any initiation or threat of any proceeding for any such purpose, and in the event of the issuance of any
order suspending such qualification, registration or exemption, the Company and the Guarantors shall use their best efforts to obtain the withdrawal thereof at the earliest possible moment.
(j) Use of Proceeds. The Company shall apply the net proceeds from the sale of the Securities sold by it in the manner described
under the caption Use of Proceeds in each of the Disclosure Package and the Prospectus.
(k) Agreement Not to
Offer to Sell Additional Securities. From and including the date of this Agreement through and including the Closing Date, the Company will not, without the prior written consent of the Representatives, directly or indirectly issue, offer,
pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option or right to sell or otherwise transfer or dispose of any debt securities of or guaranteed by the Company, that are
similar to the Notes (other than the Notes issued under this Agreement) or any securities convertible into or exercisable or exchangeable for any debt securities of or guaranteed by the Company, that are similar to the Notes; provided, however, the
Company may issue commercial paper notes pursuant to its commercial paper program and incur borrowings under its revolving credit facility and floorplan facilities.
(l) DTC. The Company shall use commercially reasonable efforts to obtain the approval of DTC to permit the Notes to be eligible
for book-entry transfer and settlement through the facilities of DTC, and agrees to comply with all of its agreements set forth in the representation letters of the Company to DTC relating to the approval of the Notes by DTC for
book-entry transfer.
(m) Earnings Statement. The Company will make generally available to its securityholders
and to the Representatives (which may be satisfied by filing with the Commissions Electronic Data, Gathering, Analysis and Retrieval System (EDGAR)) as soon as practicable, an earnings statement (which need not be audited)
covering a period of at least twelve months beginning with the first fiscal quarter of the Company occurring after the effective date (as defined in Rule 158 under the Securities Act) of the Registration Statement.
(n) Periodic Reporting Obligations. During the Prospectus Delivery Period the Company shall file, on a timely basis, with the Commission
and the New York Stock Exchange all reports and documents required to be filed under the Exchange Act.
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(o) Filing Fees. The Company agrees to pay the required Commission filing fees
relating to the Securities within the time required by Rule 456(b)(1) of the Securities Act without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) of the Securities Act.
(p) Compliance with Sarbanes-Oxley Act. During the Prospectus Delivery Period, the Company will comply with all applicable securities
and other laws, rules and regulations, including, without limitation, the Sarbanes-Oxley Act, and use its best efforts to cause the Companys directors and officers, in their capacities as such, to comply with such laws, rules and regulations,
including, without limitation, the provisions of the Sarbanes-Oxley Act.
(q) Future Reports to the Representatives. During
the period of two years hereafter the Company will furnish to the Representatives (i) to the extent not available on the Commissions EDGAR filing system, as soon as practicable after the end of each fiscal year, copies of the Annual
Report of the Company containing the balance sheet of the Company as of the close of such fiscal year and statements of income, stockholders equity and cash flows for the year then ended and the opinion thereon of the Companys
independent public or certified public accountants; and (ii) to the extent not available on the Commissions EDGAR filing system, as soon as practicable after the filing thereof, copies of each proxy statement, Annual Report on Form 10-K, Quarterly Report on Form 10-Q, Current Report on Form 8-K or other report filed by the Company with the Commission, FINRA or any
securities exchange.
(r) No Manipulation of Price. Neither the Company nor the Guarantors will take, directly or
indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, under the Exchange Act or otherwise, the stabilization or manipulation of the price of any securities of the Company to
facilitate the sale or resale of the Securities.
(s) Investment Limitation. The Company shall not invest, or
otherwise use the proceeds received by the Company from its sale of the Notes in such a manner as would require the Company or any of its subsidiaries to register as an investment company under the Investment Company Act.
(t) Notice of Inability to Use Automatic Shelf Registration Statement Form. If at any time during the Prospectus Delivery Period, the
Company receives from the Commission a notice pursuant to Rule 401(g)(2) or otherwise ceases to be eligible to use the automatic shelf registration statement form, the Company will (i) promptly notify the Representatives,
(ii) promptly file a new registration statement or post-effective amendment on the proper form relating to the Notes, in a form satisfactory to the Representatives, (iii) use its best efforts to
cause such registration statement or post-effective amendment to be declared effective and (iv) promptly notify the Representatives of such effectiveness. The Company will take all other action necessary
or appropriate to permit the public offering and sale of the Notes to continue as contemplated in the registration statement that was the subject of the Rule 401(g)(2) notice or for which the Company has otherwise become ineligible. References
herein to the Registration Statement shall include such new registration statement or post-effective amendment, as the case may be.
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5. Payment of Expenses. The Company and the Guarantors, jointly and severally,
agree to pay all costs, fees and expenses incurred in connection with the performance of their obligations hereunder and in connection with the transactions contemplated hereby, including without limitation (i) all expenses incident to the
issuance and delivery of the Securities (including all printing and engraving costs), (ii) all necessary issue, transfer and other stamp taxes in connection with the issuance and sale of the Securities to the Underwriters, (iii) all fees
and expenses of the Companys and the Guarantors counsel, independent public or certified public accountants and other advisors, (iv) all costs and expenses incurred in connection with the preparation, printing, filing, shipping and
distribution of the Registration Statement (including financial statements, exhibits, schedules, consents and certificates of experts), each Issuer Free Writing Prospectus, each Preliminary Prospectus and the Prospectus, and all amendments and
supplements thereto, and the mailing and delivering of copies thereof to the Underwriters and dealers, this Agreement, the Indenture, the DTC Agreement and the Securities, (v) all filing fees, attorneys fees and expenses incurred by the
Company, the Guarantors or the Underwriters in connection with qualifying or registering (or obtaining exemptions from the qualification or registration of) all or any part of the Securities for offer and sale under the securities laws of the
several states of the United States, the provinces of Canada or other jurisdictions designated by the Underwriters (including, without limitation, the cost of preparing, printing and mailing preliminary and final blue sky or legal investment
memoranda), (vi) the fees and expenses of the Trustee, including the fees and disbursements of counsel for the Trustee in connection with the Indenture and the Securities, (vii) any fees payable in connection with the rating of the
Securities with the ratings agencies, (viii) all fees and expenses (including reasonable fees and expenses of counsel) of the Company and the Guarantors in connection with approval of the Securities by DTC for book-entry transfer,
and the performance by the Company and the Guarantors of their respective other obligations under this Agreement, (ix) all expenses incurred by the Company in connection with any road show presentation to potential investors,
(x) all expenses and application fees incurred in connection with any filing with, and clearance of the offering by, FINRA and (xi) all other fees, costs and expenses referred to in Item 14 of Part II of the Registration Statement. It
is understood, however, that, except as provided in this Section 5, Section 7, Section 8, Section 9 and Section 11 hereof, the Underwriters will pay all of their own costs and expenses, including the fees and expenses of
their counsel.
6. Conditions to the Obligations of the Underwriters. The obligations of the Underwriters hereunder shall be
subject, in their discretion, to the condition that all representations and warranties of the Company and each Guarantor herein are true and correct at and as of the date hereof and the Closing Date, the condition that the Company and each Guarantor
shall have performed all of their respective obligations hereunder theretofore to be performed, and the following additional conditions:
(a) Accountants Comfort Letter. On the date hereof, the Underwriters shall have received from KPMG LLP, independent public
accountants for the Company, a letter dated the date hereof addressed to the Underwriters, in form and substance satisfactory to the Representatives, covering certain financial information included in or incorporated by reference in the Disclosure
Package and other customary information.
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(b) Compliance with Registration Requirements; No Stop Order. For the period from and
after effectiveness of this Agreement and prior to the Closing Date and, with respect to the Securities:
(i) the Company
shall have filed the Prospectus with the Commission (including the information required by Rules 430A, 430B and 430C under the Securities Act) in the manner and within the time period required by Rule 424(b) under the Securities Act;
(ii) the Final Term Sheet, and any other material required to be filed by the Company pursuant to Rule 433(d) under the
Securities Act shall have been filed with the Commission within the applicable time periods prescribed for such filings under such Rule 433; and
(iii) no stop order suspending the effectiveness of the Registration Statement, or any post-effective amendment to the
Registration Statement, shall be in effect and no proceedings for such purpose or pursuant to Section 8A of the Securities Act shall have been instituted or threatened by the Commission; and the Company shall not have received from the
Commission any notice pursuant to Rule 401(g)(2) of the Securities Act objecting to use of the automatic shelf registration statement form.
(c) No Material Adverse Change or Ratings Agency Change. For the period from and after the date of this Agreement and prior to
the Closing Date:
(i) there shall not have occurred any Material Adverse Effect that makes it, in the reasonable
judgment of the Representatives, impractical or inadvisable to proceed with the offering, sale or delivery of the Securities as contemplated by this Agreement, the Disclosure Package and the Prospectus; and
(ii) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential
downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded the Company or any of its subsidiaries by any nationally recognized statistical rating organization as
such term is defined for purposes of Section 3(a)(62) of the Exchange Act, and no such organization shall have publicly announced that it has under surveillance or review, with possible negative implications, any such rating.
(d) Opinion of Counsel for the Company. On the Closing Date, the Underwriters shall have received the favorable opinion of
(i) Skadden, Arps, Slate, Meagher & Flom LLP, counsel for the Company, and (ii) C. Coleman G. Edmunds, Senior Vice President, Deputy General Counsel and Assistant Secretary of the Company dated as of such Closing Date, the forms
of which are attached as Exhibit A-1 and A-2.
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(e) Opinion of Counsel for the Underwriters. On the Closing Date, the Underwriters
shall have received the favorable opinion of Simpson Thacher & Bartlett LLP, counsel for the Underwriters, dated as of such Closing Date, in form and substance satisfactory to, and addressed to, the Underwriters, with respect to the
issuance and sale of the Notes, the Registration Statement, the Prospectus (together with any supplement thereto), the Disclosure Package and other related matters as the Representatives may reasonably require, and the Company shall have furnished
to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
(f)
Officers Certificate. On the Closing Date, the Representatives shall have received a written certificate executed by the Chairman of the Board, Chief Executive Officer, President or General Counsel of the Company and the Chief Financial
Officer or Chief Accounting Officer of the Company, dated as of the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Prospectus and any amendment or
supplement thereto, any Issuer Free Writing Prospectus and any amendment or supplement thereto and this Agreement, to the effect set forth in subsections (b)(iii) and (c)(ii) of this Section 6, and further to the effect that:
(i) for the period from and after the date of this Agreement and prior to the Closing Date, there has not occurred any Material
Adverse Effect;
(ii) the representations and warranties of the Company and the Guarantors set forth in Section 1 of
this Agreement are true and correct on and as of the Closing Date with the same force and effect as though expressly made on and as of the Closing Date; and
(iii) the Company and the Guarantors have complied with all the agreements hereunder and satisfied all the conditions on its
part to be performed or satisfied hereunder at or prior to the Closing Date.
(g) Bring-down Comfort Letter. On the Closing
Date, the Underwriters shall have received from KPMG LLP, independent public accountants for the Company, a letter dated such date, in form and substance reasonably satisfactory to the Representatives, to the effect that they reaffirm the statements
made in the letter furnished by them pursuant to subsection (a) of this Section 6, except that (i) it shall cover certain financial information included in or incorporated by reference to the Prospectus and any amendment or supplement
thereto and (ii) the specified date referred to therein for the carrying out of procedures shall be no more than three business days prior to the Closing Date, as the case may be.
(h) Form of Securities and Indenture. The Securities and the Indenture shall be executed by the Company, or the Guarantors, as
the case may be, in form and substance reasonably satisfactory to the Representatives and the Trustee.
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(i) Closing Documents. At the Closing Date, the Company and the Guarantors shall have
furnished counsel for the Company, the Guarantors or the Underwriters, as the case may be, such documents as they reasonably require for the purpose of enabling them to pass upon the issuance and sale of the Securities as herein contemplated, or in
order to evidence the accuracy of any of the representations or warranties or fulfillment of any of the conditions herein contained.
If
any condition specified in this Section 6 is not satisfied when and as required to be satisfied, this Agreement may be terminated by the Representatives by notice to the Company at any time on or prior to the Closing Date, which termination
shall be without liability on the part of any party to any other party, except that Section 5, Section 7, Section 8, Section 9, Section 13 and Section 17 shall at all times be effective and shall survive such
termination.
7. Reimbursement of Underwriters Expenses. If this Agreement is terminated by the Representatives pursuant to
Section 6 or Section 11, or if the sale to the Underwriters of the Notes on the Closing Date is not consummated because of any refusal, inability or failure on the part of the Company or any Guarantor to perform any agreement herein or to
comply with any provision hereof, the Company and the Guarantors, jointly and severally, agree to reimburse the Representatives and the other Underwriters (or such Underwriters as have terminated this Agreement with respect to themselves),
severally, upon demand for all out-of-pocket expenses that shall have been reasonably incurred by the Representatives and the Underwriters in connection with the proposed purchase and the offering and sale of the Securities, including but not
limited to fees and disbursements of counsel, printing expenses, travel expenses, postage, facsimile and telephone charges.
8.
Indemnification.
(a) Indemnification of the Underwriters. The Company and the Guarantors agree, jointly and severally, to
indemnify and hold harmless each Underwriter, its directors, officers, employees, agents and affiliates, and each person, if any, who controls any Underwriter within the meaning of the Securities Act and the Exchange Act against any loss, claim,
damage, liability or expense, as incurred, to which such Underwriter or such controlling person may become subject, insofar as such loss, claim, damage, liability or expense (or actions in respect thereof as contemplated below) arises out of or is
based (i) upon any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, or any amendment thereto, including any information deemed to be a part thereof pursuant to Rule 430B or 430C under the
Securities Act, or the omission or alleged omission therefrom of a material fact required to be stated therein or necessary to make the statements therein not misleading; or (ii) upon any untrue statement or alleged untrue statement of a
material fact contained in any Issuer Free Writing Prospectus, any Preliminary Prospectus or the Prospectus (or any amendment or supplement thereto), or the omission or alleged omission therefrom of a material fact, in each case, necessary in order
to make the statements therein, in the light of the circumstances under which they were made, not misleading, and to reimburse each Underwriter, its officers, directors, employees, affiliates, agents and each such controlling person for any and all
expenses (including, subject to Section 8(c), the fees and disbursements of counsel chosen by
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the Representatives) as such expenses are reasonably incurred by such Underwriter, or its officers, directors, employees, affiliates and agents or such controlling person in connection with
investigating, defending, settling, compromising or paying any such loss, claim, damage, liability, expense or action; provided, however, that the foregoing indemnity agreement shall not apply to any loss, claim, damage, liability or
expense to the extent, but only to the extent, arising out of or based upon any untrue statement or alleged untrue statement or omission or alleged omission made in reliance upon and in conformity with written information furnished to the Company by
the Representatives expressly for use in the Registration Statement, any Issuer Free Writing Prospectus, any Preliminary Prospectus or the Prospectus (or any amendment or supplement thereto). The indemnity agreement set forth in this
Section 8(a) shall be in addition to any liabilities that the Company may otherwise have.
(b) Indemnification of the Company and
the Guarantors, Directors and Officers. Each Underwriter agrees, severally and not jointly, to indemnify and hold harmless the Company and the Guarantors, each of their respective directors and their respective officers who signed the
Registration Statement and each person, if any, who controls the Company or any of the Guarantors within the meaning of the Securities Act or the Exchange Act, against any loss, claim, damage, liability or expense, as incurred, to which the Company,
or any such director, officer or controlling person may become subject, insofar as such loss, claim, damage, liability or expense (or actions in respect thereof as contemplated below) arises out of or is based (i) upon any untrue statement or
alleged untrue statement of a material fact contained in the Registration Statement, or any amendment thereto, including any information deemed to be a part thereof pursuant to Rule 430B or 430C under the Securities Act, or the omission or alleged
omission therefrom of a material fact required to be stated therein or necessary to make the statements therein not misleading; or (ii) upon any untrue statement or alleged untrue statement of a material fact contained in any Issuer Free
Writing Prospectus, any Preliminary Prospectus or the Prospectus (or any amendment or supplement thereto), or the omission or alleged omission therefrom of a material fact, in each case, necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading, in each case to the extent, and only to the extent, that such untrue statement or alleged untrue statement or omission or alleged omission was made in the Registration Statement,
any Issuer Free Writing Prospectus, any Preliminary Prospectus or the Prospectus (or any amendment or supplement thereto), in reliance upon and in conformity with written information furnished to the Company by any Underwriter through the
Representatives expressly for use therein; and to reimburse the Company and the Guarantors, or any such director, officer or controlling person for any legal and other expense reasonably incurred by the Company and the Guarantors, or any such
director, officer or controlling person in connection with investigating, defending, settling, compromising or paying any such loss, claim, damage, liability, expense or action. The Company and the Guarantors hereby acknowledge that the only
information that the Underwriters have furnished to the Company through the Representatives expressly for use in the Registration Statement, any Issuer Free Writing Prospectus, any Preliminary Prospectus or the Prospectus (or any amendment or
supplement thereto) are the statements set forth in the fifth paragraph, the third sentence of the seventh paragraph and the ninth and tenth paragraphs under the caption Underwriting (Conflicts of Interest) in the Prospectus. The
indemnity agreement set forth in this Section 8(b) shall be in addition to any liabilities that each Underwriter may otherwise have.
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(c) Notifications and Other Indemnification Procedures. Promptly after receipt by an
indemnified party under this Section 8 of notice of the commencement of any action, such indemnified party will, if a claim in respect thereof is to be made against an indemnifying party under this Section 8, notify the indemnifying party
in writing of the commencement thereof; but the failure to so notify the indemnifying party (i) will not relieve it from liability under paragraph (a) or (b) above unless and to the extent it did not otherwise learn of such action and
such failure results in the forfeiture by the indemnifying party of substantial rights and defenses and (ii) will not, in any event, relieve the indemnifying party from any obligations to any indemnified party other than the indemnification
obligation provided in paragraph (a) or (b) above. In case any such action is brought against any indemnified party and such indemnified party seeks or intends to seek indemnity from an indemnifying party, the indemnifying party will be
entitled to participate in, and, to the extent that it shall elect, jointly with all other indemnifying parties similarly notified, by written notice delivered to the indemnified party promptly after receiving the aforesaid notice from such
indemnified party, to assume the defense thereof with counsel reasonably satisfactory to such indemnified party; provided, however, if the defendants in any such action include both the indemnified party and the indemnifying party and
the indemnified party shall have reasonably concluded that a conflict may arise between the positions of the indemnifying party and the indemnified party in conducting the defense of any such action or that there may be legal defenses available to
it and/or the other indemnified parties that are different from or additional to those available to the indemnifying party, the indemnified party or parties shall have the right to select separate counsel to assume such legal defenses and to
otherwise participate in the defense of such action on behalf of such indemnified party or parties. Upon receipt of notice from the indemnifying party to such indemnified party of such indemnifying partys election so to assume the defense of
such action and approval by the indemnified party of counsel, the indemnifying party will not be liable to such indemnified party under this Section 8 for any legal or other expenses subsequently incurred by such indemnified party in connection
with the defense thereof unless (i) the indemnified party shall have employed separate counsel in accordance with the proviso to the preceding sentence (it being understood, however, that the indemnifying party shall not be liable for the
expenses of more than one separate counsel (other than local counsel), reasonably approved by the indemnifying party (or by the Representatives in the case of Section 8(b)), representing all indemnified parties who are parties to such action);
or (ii) the indemnifying party shall not have employed counsel satisfactory to the indemnified party to represent the indemnified party within a reasonable time after notice of commencement of the action, in each of which cases the fees and
expenses of counsel shall be at the expense of the indemnifying party.
(d) Settlements. The indemnifying party under this
Section 8 shall not be liable for any settlement of any proceeding effected without its written consent, which shall not be withheld unreasonably, but if settled with such consent or if there be a final judgment for the plaintiff, the
indemnifying party agrees to indemnify the indemnified party against any loss, claim, damage, liability or expense by reason of such settlement or judgment. Notwithstanding the foregoing sentence, if at any time an indemnified party shall have
requested an indemnifying party to reimburse the indemnified party for fees and expenses of counsel as contemplated by Section 8(c) hereof, the indemnifying party agrees that it shall be liable for any settlement of any
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proceeding effected without its written consent if (i) such settlement is entered into more than 45 days after receipt by such indemnifying party of the aforesaid request, (ii) such
indemnifying party shall have received notice of the terms of such settlement at least 30 days prior to such settlement being entered into and (iii) such indemnifying party shall not have reimbursed the indemnified party in accordance with such
request prior to the date of such settlement. No indemnifying party shall, without the prior written consent of the indemnified party, effect any settlement, compromise or consent to the entry of judgment in any pending or threatened action, suit or
proceeding in respect of which any indemnified party is or could have been a party and indemnity was or could have been sought hereunder by such indemnified party, unless such settlement, compromise or consent (i) includes an unconditional
release of such indemnified party from all liability on claims that are the subject matter of such action, suit or proceeding and (ii) does not include a statement as to or an admission of fault, culpability or a failure to act, by or on behalf
of any indemnified party.
9. Contribution. If the indemnification provided for in Section 8 is for any reason unavailable to
or otherwise insufficient to hold harmless an indemnified party in respect of any losses, claims, damages, liabilities or expenses referred to therein, then each indemnifying party shall contribute to the aggregate amount paid or payable by such
indemnified party, as incurred, as a result of any losses, claims, damages, liabilities or expenses referred to therein (i) in such proportion as is appropriate to reflect the relative benefits received by the Company and the Guarantors, on the
one hand, and the Underwriters, on the other hand, from the offering of the Securities pursuant to this Agreement or (ii) if the allocation provided by clause (i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the Company and the Guarantors, on the one hand, and the Underwriters, on the other hand, in connection with the statements or
omissions or inaccuracies in the representations and warranties herein which resulted in such losses, claims, damages, liabilities or expenses, as well as any other relevant equitable considerations. The relative benefits received by the Company and
the Guarantors, on the one hand, and the Underwriters, on the other hand, in connection with the offering of the Securities pursuant to this Agreement shall be deemed to be in the same respective proportions as the total net proceeds from the
offering of the Securities pursuant to this Agreement (before deducting expenses) received by the Company and the Guarantors, and the total underwriting discount received by the Underwriters, in each case as set forth on the front cover page of the
Prospectus bear to the aggregate initial public offering price of the Securities as set forth on such cover. The relative fault of the Company and the Guarantors, on the one hand, and the Underwriters, on the other hand, shall be determined by
reference to, among other things, whether any such untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact or any such inaccurate or alleged inaccurate representation or warranty relates to
information supplied by the Company and the Guarantors, on the one hand, or the Underwriters, on the other hand, and the parties relative intent, knowledge, access to information and opportunity to correct or prevent such statement or
omission.
The amount paid or payable by a party as a result of the losses, claims, damages, liabilities and expenses referred to above
shall be deemed to include, subject to the limitations set forth in Section 8(c), any legal or other fees or disbursements reasonably incurred by such party in connection with investigating or defending any action or claim.
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The Company and the Underwriters agree that it would not be just and equitable if contribution
pursuant to this Section 9 were determined by pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation which does not take account of the equitable considerations referred
to in this Section 9.
Notwithstanding the provisions of this Section 9, no Underwriter shall be required to contribute any
amount in excess of the underwriting commissions received by such Underwriter in connection with the Securities underwritten by it and distributed to the public. No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The Underwriters obligations to contribute pursuant to this Section 9 are several, and
not joint, in proportion to their respective underwriting commitments as set forth opposite their names in Schedule A. For purposes of this Section 9, each director, officer, employee, affiliates and agent of an Underwriter and each
person, if any, who controls an Underwriter within the meaning of the Securities Act and the Exchange Act shall have the same rights to contribution as such Underwriter, and each director of the Company or a Guarantor, each officer of the Company or
a Guarantor who signed the Registration Statement and each person, if any, who controls the Company or a Guarantor within the meaning of the Securities Act and the Exchange Act shall have the same rights to contribution as the Company and the
Guarantors.
10. Default of One or More of the Several Underwriters. If, on the Closing Date, any one or more of the several
Underwriters shall fail or refuse to purchase Securities that it or they have agreed to purchase hereunder on such date, and the aggregate principal amount of Securities which such defaulting Underwriter or Underwriters agreed but failed or refused
to purchase does not exceed 10% of the aggregate principal amount of the Securities to be purchased on such date, the other Underwriters shall be obligated, severally, in the proportions that the principal amount of Securities to be purchased set
forth opposite their respective names on Schedule A bears to the aggregate principal amount of Securities set forth opposite the names of all such non-defaulting Underwriters, or in such other proportions as may be specified by the
Representatives with the consent of the non-defaulting Underwriters, to purchase the Securities which such defaulting Underwriter or Underwriters agreed but failed or refused to purchase on such date. If, on the Closing Date, any one or more of the
Underwriters shall fail or refuse to purchase Securities and the principal amount of Securities with respect to which such default occurs exceeds 10% of the principal amount of Securities to be purchased on such date, and arrangements satisfactory
to the Representatives and the Company for the purchase of such Securities are not made within 48 hours after such default, this Agreement shall terminate without liability of any party to any other party except that the provisions of
Section 5, Section 7, Section 8, Section 9, Section 13 and Section 17 shall at all times be effective and shall survive such termination. In any such case either the Representatives or the Company shall have the right
to postpone the Closing Date, but in no event for longer than seven days in order that the required changes, if any, to the Registration Statement, any Issuer Free Writing Prospectus, the
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Preliminary Prospectus or the Prospectus or any other documents or arrangements may be effected. As used in this Agreement, the term Underwriter shall be deemed to include any person
substituted for a defaulting Underwriter under this Section 10. Any action taken under this Section 10 shall not relieve any defaulting Underwriter from liability in respect of any default of such Underwriter under this Agreement.
11. Termination of this Agreement. Prior to the Closing Date this Agreement may be terminated by the Representatives by notice given to
the Company if at any time (i) trading in any of the Companys securities shall have been suspended or limited by the Commission or by the New York Stock Exchange, (ii) trading in securities generally on the New York Stock Exchange or
the Nasdaq Stock Market, Inc. shall have been suspended or limited, or minimum or maximum prices shall have been generally established on any of such stock exchanges by the Commission ; (iii) a general banking moratorium shall have been
declared by federal or New York authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States has occurred; or (iv) there shall have occurred any outbreak or escalation of
national or international hostilities or any crisis or calamity, or any change in the United States or international financial markets, or any substantial change or development involving a prospective substantial change in United States or
international political, financial or economic conditions, as in the judgment of the Representatives is material and adverse and makes it impracticable or inadvisable to proceed with the offering, sales or delivery of the Securities in the manner
and on the terms described in the Disclosure Package or the Prospectus or to enforce contracts for the sale of securities. Any termination pursuant to this Section 11 shall be without liability on the part of (a) the Company or any
Guarantor to any Underwriter, except that the Company shall be obligated to reimburse the expenses of the Representatives and the Underwriters pursuant to Sections 5, 7, 8 and 9 hereof or (b) any Underwriter to the Company.
12. No Advisory or Fiduciary Responsibility. The Company and each Guarantor acknowledge and agree that: (i) the purchase and
sale of the Securities pursuant to this Agreement, including the determination of the public offering price of the Securities and any related discounts and commissions, is an arms-length commercial transaction between the Company and such
Guarantor, on the one hand, and the several Underwriters, on the other hand, and the Company and such Guarantor are capable of evaluating and understanding and understand and accept the terms, risks and conditions of the transactions contemplated by
this Agreement; (ii) in connection with each transaction contemplated hereby and the process leading to such transaction each Underwriter is and has been acting solely as a principal and is not the advisor, agent or fiduciary of the Company,
the Guarantors or any of their respective affiliates, stockholders, creditors or employees or any other party; (iii) no Underwriter has assumed or will assume an advisory, agency or fiduciary responsibility in favor of the Company or such
Guarantor with respect to any of the transactions contemplated hereby or the process leading thereto (irrespective of whether such Underwriter has advised or is currently advising the Company or such Guarantor on other matters) and no Underwriter
has any obligation to the Company or such Guarantor with respect to the offering contemplated hereby except the obligations expressly set forth in this Agreement; (iv) the several Underwriters and their respective affiliates may be engaged in a
broad range of transactions that involve interests that
-29-
differ from those of the Company and the Guarantors and that the several Underwriters have no obligation to disclose any of such interests by virtue of any advisory, agency or fiduciary
relationship; and (v) the Underwriters have not provided any legal, accounting, regulatory or tax advice with respect to the offering contemplated hereby and the Company and the Guarantors have consulted their own legal, accounting, regulatory
and tax advisors to the extent they deemed appropriate.
This Agreement supersedes all prior agreements and understandings (whether
written or oral) between the Company, the Guarantors and the several Underwriters, or any of them, with respect to the subject matter hereof. The Company and each Guarantor hereby waive and release, to the fullest extent permitted by law, any claims
that the Company or such Guarantor may have against the several Underwriters with respect to any breach or alleged breach of agency or fiduciary duty.
13. Representations and Indemnities to Survive Delivery. The respective indemnities, agreements, representations, warranties and other
statements of the Company and the Guarantors, of their respective officers and of the several Underwriters set forth in or made pursuant to this Agreement will remain operative and in full force and effect, regardless of any (A) investigation,
or statement as to the results thereof, made by or on behalf of any Underwriter, the officers or employees of any Underwriter, or any person controlling the Underwriter or (B) acceptance of the Securities and payment for them hereunder. The
provisions of Section 5, Section 7, Section 8, Section 9, this Section 13 and Section 17 hereof shall survive the termination or cancellation of this Agreement.
14. Notices. All communications hereunder shall be in writing and shall be mailed, hand delivered or telecopied and confirmed to the
parties hereto as follows:
If to the Representatives:
J.P. Morgan Securities LLC
383
Madison Avenue
New York, New York 10179
Facsimile: (212) 834-6081
Attention: Investment Grade Syndicate Desk 3rd Floor
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
50 Rockefeller Plaza
NY1-050-12-02
New York, NY 10020
Facsimile: (646) 855-5958
Attention: High Grade Transaction Management/Legal
-30-
Wells Fargo Securities, LLC
550 South Tryon Street
Charlotte, North Carolina 28202
Facsimile: (704) 410-0326
Attention: Transaction Management
SunTrust Robinson Humphrey, Inc.
3333 Peachtree Road NE, 11th Floor
Atlanta, Georgia 30326
Attn:
Investment Grade Capital Markets
and:
Simpson Thacher & Bartlett LLP
425 Lexington Avenue
New York,
New York 10017
Facsimile: (212) 455-2502
Attention: John Lobrano
If to
the Company:
AutoNation, Inc.
200 SW 1st Avenue
Fort Lauderdale, Florida 33301
Facsimile: (954) 769-6340
Attention: Jonathan P. Ferrando
and:
Skadden, Arps, Slate,
Meagher & Flom LLP
155 N. Wacker Drive
Chicago, Illinois 60606-1720
Facsimile: (312) 407-8504
Attention: Gary P. Cullen
Any
party hereto may change the address for receipt of communications by giving written notice to the others.
15. Successors and
Assigns. This Agreement will inure to the benefit of and be binding upon the parties hereto, including any substitute Underwriters pursuant to Section 10 hereof, and to the benefit of (i) the Company and the Guarantors, their
respective directors, any person who controls the Company or any of the Guarantors within the meaning of the Securities Act and the Exchange Act and any officer of the Company or any Guarantor who signed the Registration Statement, (ii) the
Underwriters, the officers, directors, employees, affiliates and agents of the Underwriters, and each person, if any, who controls any Underwriter within the meaning of the Securities Act and the Exchange Act, and (iii) the respective
successors and assigns of any of the above, all as and to the extent provided in this Agreement, and no other person shall acquire or have any right under or by virtue of this Agreement. The term successors and assigns shall not include
a purchaser of any of the Securities from any of the several Underwriters merely because of such purchase.
-31-
16. Partial Unenforceability. The invalidity or unenforceability of any Section,
paragraph or provision of this Agreement shall not affect the validity or enforceability of any other Section, paragraph or provision hereof. If any Section, paragraph or provision of this Agreement is for any reason determined to be invalid or
unenforceable, there shall be deemed to be made such minor changes (and only such minor changes) as are necessary to make it valid and enforceable.
17. Governing Law Provisions. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF
THE STATE OF NEW YORK.
(a) Consent to Jurisdiction. Any legal suit, action or proceeding arising out of or based upon this
Agreement or the transactions contemplated hereby (Related Proceedings) may be instituted in the federal courts of the United States of America located in the City and County of New York or the courts of the State of
New York in each case located in the City and County of New York (collectively, the Specified Courts), and each party irrevocably submits to the exclusive jurisdiction (except for suits, actions, or proceedings
instituted in regard to the enforcement of a judgment of any Specified Court in a Related Proceeding (a Related Judgment), as to which such jurisdiction is non-exclusive) of the Specified Courts in any Related
Proceeding. Service of any process, summons, notice or document by mail to such partys address set forth above shall be effective service of process for any Related Proceeding brought in any Specified Court. The parties irrevocably and
unconditionally waive any objection to the laying of venue of any Related Proceeding in the Specified Courts and irrevocably and unconditionally waive and agree not to plead or claim in any Specified Court that any Related Proceeding brought in any
Specified Court has been brought in an inconvenient forum.
(b) Waiver of Immunity. With respect to any Related
Proceeding, each party irrevocably waives, to the fullest extent permitted by applicable law, all immunity (whether on the basis of sovereignty or otherwise) from jurisdiction, service of process, attachment (both before and after judgment) and
execution to which it might otherwise be entitled in the Specified Courts, and with respect to any Related Judgment, each party waives any such immunity in the Specified Courts or any other court of competent jurisdiction, and will not raise or
claim or cause to be pleaded any such immunity at or in respect of any such Related Proceeding or Related Judgment, including, without limitation, any immunity pursuant to the United States Foreign Sovereign Immunities Act of 1976, as amended.
(c) Waiver of Jury Trial. Each of the parties hereto hereby waives any right to trial by jury in any suit or proceeding
arising out of or relating to this Agreement.
-32-
18. General Provisions. This Agreement constitutes the entire agreement of the
parties to this Agreement and supersedes all prior written or oral and all contemporaneous oral agreements, understandings and negotiations with respect to the subject matter hereof. This Agreement may be executed in two or more counterparts, each
one of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument. Delivery of an executed counterpart of a signature page to this Agreement by telecopier, facsimile, email or other
electronic transmission (i.e., pdf or tif) shall be effective as delivery of a manually executed counterpart of this Agreement. This Agreement may not be amended or modified unless in writing by all of the parties
hereto, and no condition herein (express or implied) may be waived unless waived in writing by each party whom the condition is meant to benefit. The Section headings herein are for the convenience of the parties only and shall not affect the
construction or interpretation of this Agreement.
Each of the parties hereto acknowledges that it is a sophisticated business person who
was adequately represented by counsel during negotiations regarding the provisions hereof, including, without limitation, the indemnification provisions of Section 8 and the contribution provisions of Section 9, and is fully informed
regarding said provisions. Each of the parties hereto further acknowledges that the provisions of Sections 8 and 9 hereto fairly allocate the risks in light of the ability of the parties to investigate the Company, its affairs and its business in
order to assure that adequate disclosure has been made in the Registration Statement, the Disclosure Package and the Prospectus (and any amendments and supplements thereto), as required by the Securities Act and the Exchange Act.
-33-
If the foregoing is in accordance with your understanding of our agreement, kindly sign and
return to the Company the enclosed copies hereof, whereupon this instrument, along with all counterparts hereof, shall become a binding agreement in accordance with its terms.
|
|
|
|
|
Very truly yours, |
|
AUTONATION, INC. |
|
|
By: |
|
/s/ C. Coleman G. Edmunds |
|
|
Name: |
|
C. Coleman G. Edmunds |
|
|
Title: |
|
Senior Vice President, Deputy General
Counsel and Assistant Secretary |
|
THE GUARANTORS NAMED IN SCHEDULE B ATTACHED HERETO |
|
|
All by: |
|
/s/ C. Coleman G. Edmunds |
|
|
Name: |
|
C. Coleman G. Edmunds |
|
|
Title: |
|
Authorized Signatory |
-34-
The foregoing Agreement is hereby confirmed and accepted by the Representatives as of the date
first above written.
|
|
|
|
|
J.P. MORGAN SECURITIES LLC |
MERRILL LYNCH, PIERCE, FENNER & SMITH |
INCORPORATED |
WELLS FARGO SECURITIES, LLC |
SUNTRUST ROBINSON HUMPHREY, INC. |
|
For themselves and as Representatives of the several Underwriters named in the attached Schedule A |
|
|
By: |
|
J.P. Morgan Securities LLC |
|
|
|
By: |
|
/s/ Som Bhattacharyya |
|
|
Name: |
|
Som Bhattacharyya |
|
|
Title: |
|
Vice President |
|
|
By: |
|
Merrill Lynch, Pierce, Fenner & Smith |
|
|
Incorporated |
|
|
By: |
|
/s/ Happy Hazelton |
|
|
Name: |
|
Happy Hazelton |
|
|
Title: |
|
Managing Director |
|
|
By: |
|
Wells Fargo Securities, LLC |
|
|
By: |
|
/s/ Carolyn Hurley |
|
|
Name: |
|
Carolyn Hurley |
|
|
Title: |
|
Director |
|
|
By: |
|
SunTrust Robinson Humphrey, Inc. |
|
|
By: |
|
/s/ Robert Nordlinger |
|
|
Name: |
|
Robert Nordlinger |
|
|
Title: |
|
Director |
-35-
SCHEDULE A
|
|
|
|
|
|
|
|
|
Underwriters
|
|
Principal Amount of 2021 Notes To Be Purchased |
|
|
Principal Amount of 2025 Notes To Be Purchased |
|
J.P. Morgan Securities LLC |
|
$ |
66,000,000 |
|
|
$ |
99,000,000 |
|
Merrill Lynch, Pierce, Fenner & Smith
Incorporated |
|
|
66,000,000 |
|
|
|
99,000,000 |
|
Wells Fargo Securities, LLC |
|
|
66,000,000 |
|
|
|
99,000,000 |
|
SunTrust Robinson Humphrey, Inc. |
|
|
45,000,000 |
|
|
|
67,500,000 |
|
Mitsubishi UFJ Securities (USA), Inc. |
|
|
16,500,000 |
|
|
|
24,750,000 |
|
Mizuho Securities USA Inc. |
|
|
16,500,000 |
|
|
|
24,750,000 |
|
BB&T Capital Markets,
a division of BB&T Securities, LLC |
|
|
3,000,000 |
|
|
|
4,500,000 |
|
BBVA Securities Inc. |
|
|
3,000,000 |
|
|
|
4,500,000 |
|
Comerica Securities, Inc. |
|
|
3,000,000 |
|
|
|
4,500,000 |
|
Fifth Third Securities, Inc. |
|
|
3,000,000 |
|
|
|
4,500,000 |
|
KeyBanc Capital Markets Inc. |
|
|
3,000,000 |
|
|
|
4,500,000 |
|
Regions Securities LLC |
|
|
3,000,000 |
|
|
|
4,500,000 |
|
TD Securities (USA) LLC |
|
|
3,000,000 |
|
|
|
4,500,000 |
|
U.S. Bancorp Investments, Inc. |
|
|
3,000,000 |
|
|
|
4,500,000 |
|
|
|
|
|
|
|
|
|
|
Total |
|
$ |
300,000,000 |
|
|
$ |
450,000,000 |
|
SCHEDULE B
Guarantors
|
7 Rod Real Estate North, a Limited Liability Company |
7 Rod Real Estate South, a Limited Liability Company |
Abraham Chevrolet-Miami, Inc. |
Abraham Chevrolet-Tampa, Inc. |
ACER Fiduciary, Inc. |
AL F-L Motors, LLC |
Albert Berry Motors, Inc. |
Allison Bavarian |
Allison Bavarian Holding, LLC |
All-State Rent A Car, Inc. |
American Way Motors, Inc. |
AN Cadillac of WPB, LLC |
AN Central Region Management, LLC |
AN ChevroletArrowhead, Inc. |
AN CJ Valencia, Inc. |
AN Collision Center FTL South, Inc. |
AN Collision Center of Addison, Inc. |
AN Collision Center of Las Vegas, Inc. |
AN Collision Center of North Houston, Inc. |
AN Collision Center of Sarasota, Inc. |
AN Collision Center of Tempe, Inc. |
AN Corporate Management Payroll Corp. |
AN Corpus Christi GP, LLC |
AN Corpus Christi Imports Adv. GP, LLC |
AN Corpus Christi Imports Adv., LP |
AN Corpus Christi Imports GP, LLC |
AN Corpus Christi Imports II GP, LLC |
AN Corpus Christi Imports II, LP |
AN Corpus Christi Imports, LP |
AN Corpus Christi Motors, Inc. |
AN Corpus Christi T. Imports GP, LLC |
AN Corpus Christi T. Imports, LP |
AN County Line Ford, Inc. |
AN Dealership Holding Corp. |
AN F. Imports of Atlanta, LLC |
|
AN F. Imports of Hawthorne Holding, LLC |
AN F. Imports of Hawthorne, LLC |
AN F. Imports of North Denver, LLC |
AN F. Imports of North Phoenix, Inc. |
AN F. Imports of Roseville Holding, LLC |
AN F. Imports of Roseville, Inc. |
AN Florida Region Management, LLC |
AN Fort Myers Imports, LLC |
AN Fremont Luxury Imports, Inc. |
AN H. Imports of Atlanta, LLC |
AN Imports of Ft. Lauderdale, Inc. |
AN Imports of Seattle, Inc. |
AN Imports of Spokane, Inc. |
AN Imports of Stevens Creek Holding, LLC |
AN Imports of Stevens Creek, Inc. |
AN Imports on Weston Road, Inc. |
AN Luxury Imports GP, LLC |
AN Luxury Imports Holding, LLC |
AN Luxury Imports of Coconut Creek, Inc. |
AN Luxury Imports of Marietta, LLC |
AN Luxury Imports of Palm Beach, Inc. |
AN Luxury Imports of Pembroke Pines, Inc. |
AN Luxury Imports of Phoenix, Inc. |
AN Luxury Imports of San Diego, Inc. |
AN Luxury Imports of Sanford, LLC |
AN Luxury Imports of Sarasota, Inc. |
AN Luxury Imports of Spokane, Inc. |
AN Luxury Imports of Tucson, Inc. |
AN Luxury Imports, Ltd. |
AN Motors of Brooksville, Inc. |
AN Motors of Dallas, Inc. |
AN Motors of Delray Beach, Inc. |
AN Motors of Englewood, Inc. |
AN Motors of Ft. Lauderdale, Inc. |
AN Motors of Memphis, Inc. |
AN Motors of Pembroke, LLC |
AN Motors of Scottsdale, LLC |
AN Motors on Federal Highway, LLC |
AN Motors on South Padre, Ltd. |
AN Pontiac GMC Houston North GP, LLC |
AN Pontiac GMC Houston North, LP |
AN San Jose Luxury Imports Holdings, LLC
AN San Jose Luxury Imports, Inc.
AN Seattle Motors, Inc.
AN Subaru Motors, Inc.
AN T. Imports of Atlanta, LLC
AN Texas Region Management, Ltd.
AN Tucson Imports, LLC
AN Valencia Auto Imports, Inc.
AN West Central Region
Management, LLC
AN Western Region Management, LLC
AN/CF
Acquisition Corp.
AN/GMF, Inc.
AN/KPBG Motors, Inc.
AN/MF Acquisition Corp
AN/MNI Acquisition Corp.
AN/PF Acquisition Corp.
Anderson Chevrolet
Anderson Chevrolet Los Gatos, Inc.
Anderson Cupertino, Inc.
Appleway Chevrolet, Inc.
Atrium Restaurants, Inc.
Auto Ad Agency, Inc.
Auto Car Holding, LLC
Auto Car, Inc.
Auto Company IX, Inc.
Auto Company VI, Inc.
Auto Company VII, Inc.
Auto Company VIII, Inc.
Auto Company X, Inc.
Auto Company XI, Inc.
Auto Company XII, Inc.
Auto Company XIII, Inc.
Auto Company XIV, Inc.
Auto Company XIX, Inc.
Auto Company XL, Inc.
Auto Company XLI, Inc.
Auto Company XLII, Inc.
Auto Company XLIII, Inc.
Auto Company XLIV, Inc.
Auto Company XLV, Inc.
Auto Company XVII, Inc.
Auto Company XVIII, Inc.
Auto Company XXI, Inc.
Auto Company XXII, Inc.
Auto Company XXIII, Inc.
Auto Company XXIV, Inc.
Auto Company XXIX, Inc.
Auto Company XXV, Inc.
Auto Company XXVI, Inc.
Auto Company XXVII, Inc.
Auto Company XXVIII, Inc.
Auto Company XXX, Inc.
Auto Company XXXI, Inc.
Auto Company XXXII, Inc.
Auto Company XXXIII, Inc.
Auto Company XXXIV, Inc.
Auto Company XXXIX, Inc.
Auto Company XXXV, Inc.
Auto Company XXXVI, Inc.
Auto Company XXXVII, Inc.
Auto Company XXXVIII, Inc.
Auto Dealership III, LLC
Auto Dealership IV, LLC
Auto Dealership IX, LLC
Auto Dealership V, LLC
Auto Dealership VI, LLC
Auto Dealership VII, LLC
Auto Dealership VIII, LLC
Auto Dealership X, LLC
Auto Dealership XIX, LLC
Auto Dealership XX, LLC
Auto Dealership XXI, LLC
Auto Dealership XXII, LLC
Auto Dealership XXIII, LLC
Auto Dealership XXIV, LLC
Auto Dealership XXIX, LLC
Auto Dealership XXV, LLC
Auto Dealership XXVI, LLC
Auto Dealership XXVII, LLC
Auto Dealership XXVIII, LLC
Auto Dealership XXX, LLC
Auto Holding, LLC
Auto Mission Holding, LLC
Auto Mission Ltd.
Auto West, Inc.
Autohaus Holding, Inc.
AutoNation Benefits Company, Inc.
AutoNation Corporate Management, LLC
AutoNation Direct Nevada,
Inc.
AutoNation Enterprises Incorporated
AutoNation
Financial Services, LLC
AutoNation Fort Worth Motors, Ltd.
AutoNation GM GP, LLC
AutoNation Holding Corp.
AutoNation Imports of Katy GP, LLC
AutoNation Imports of Katy,
L.P.
AutoNation Imports of Lithia Springs, LLC
AutoNation
Imports of Longwood, Inc.
AutoNation Imports of Palm Beach, Inc.
AutoNation Imports of Winter Park, Inc.
AutoNation Motors
Holding Corp.
AutoNation Motors of Lithia Springs, Inc.
AutoNation North Texas Management GP, LLC
AutoNation Northwest
Management, LLC
AutoNation Orlando Venture Holdings, Inc.
AutoNation Realty Corporation
AutoNation USA of Perrine, Inc.
AutoNation V. Imports of Delray Beach, LLC
AutoNation.com,
Inc.
Bankston Auto, Inc.
Bankston Chrysler Jeep of Frisco,
L.P.
Bankston CJ GP, LLC
Bankston Ford of Frisco, Ltd. Co.
Bankston Nissan in Irving, Inc.
Bankston Nissan Lewisville
GP, LLC
Bankston Nissan Lewisville, Ltd.
Bargain Rent-A-Car
Batfish, LLC
BBCSS, Inc.
Beach City Chevrolet Company, Inc.
Beach City Holding, LLC
Beacon Motors, Inc.
Bell Motors, LLC
Bellevue Automotive, Inc.
Bengal Motor Company, Ltd.
Bengal Motors, Inc.
Bill Ayares Chevrolet, LLC
Bledsoe Dodge, LLC
Bob Townsend Ford, Inc.
Body Shop Holding Corp.
BOSC Automotive Realty, Inc.
Brown & Brown Chevrolet -
Superstition Springs, LLC
Brown & Brown Chevrolet, Inc.
Brown & Brown Nissan Mesa, LLC
Brown & Brown Nissan,
Inc.
Buick Mart Limited Partnership
Bull Motors, LLC
C. Garrett, Inc.
Carlisle Motors, LLC
Carwell Holding, LLC
Carwell, LLC
Centennial Automotive, LLC
Cerritos Body Works Holding, LLC
Cerritos Body Works, Inc.
Champion Chevrolet Holding, LLC
Champion Chevrolet, LLC
Champion Ford, Inc.
Charlie Hillard, Inc.
Charlie Thomas Chevrolet GP, LLC
Charlie Thomas Chevrolet, Ltd.
Charlie Thomas Chrysler-Plymouth,
Inc.
Charlie Thomas Courtesy GP, LLC
Charlie Thomas
Courtesy Leasing, Inc.
Charlie Thomas F. GP, LLC
Charlie
Thomas Ford, Ltd.
Charlie Thomas Courtesy Ford, Ltd.
Chesrown Auto, LLC
Chesrown Chevrolet, LLC
Chesrown Collision Center, Inc.
Chesrown Ford, Inc.
Chevrolet World, Inc.
Chuck Clancy Ford of Marietta, LLC
CJ Valencia Holding, LLC
Coastal Cadillac, Inc.
Consumer Car Care Corporation
Contemporary Cars, Inc.
Cook-Whitehead Ford, Inc.
Corporate Properties Holding, Inc.
Corpus Christi Collision
Center, Inc.
Costa Mesa Cars Holding, LLC
Costa Mesa Cars,
Inc.
Courtesy Auto Group, Inc.
Courtesy Broadway, LLC
Covington Pike Motors, Inc.
CT Intercontinental GP, LLC
CT Intercontinental, Ltd.
CT Motors, Inc.
D/L Motor Company
Deal Dodge of Des Plaines, Inc.
Dealership Properties, Inc.
Dealership Realty Corporation
Desert Buick-GMC Trucks, L.L.C.
Desert Chrysler-Plymouth, Inc.
Desert Dodge, Inc.
Desert GMC, L.L.C.
Dobbs Ford of Memphis, Inc.
Dobbs Ford, Inc.
Dobbs Mobile Bay, Inc.
Dobbs Motors of Arizona, Inc.
Don Mealey Chevrolet, Inc.
Don Mealey Imports, Inc.
Don-A-Vee Jeep Eagle, Inc.
Drivers Mart Worldwide, Inc.
Eastgate Ford, Inc.
Ed Mullinax Ford, LLC
Edgren Motor Company, Inc.
Edgren Motor Holding, LLC
El Monte Imports Holding, LLC
El Monte Imports, Inc.
El Monte Motors Holding, LLC
El Monte Motors, Inc.
Emich Subaru West, LLC
Empire Services Agency, Inc.
Financial Services GP, LLC
Financial Services, Ltd.
First Team Automotive Corp.
First Team Ford of Manatee, Ltd.
First Team Ford, Ltd
First Team Jeep Eagle, Chrysler-Plymouth, Ltd.
First Team
Management, Inc.
Fit Kit Holding, LLC
Fit Kit, Inc.
Florida Auto Corp.
Ford of Kirkland, Inc.
Fox Chevrolet, LLC
Fox Motors, LLC
Fred Oakley Motors, Inc.
Fremont Luxury Imports Holding, LLC
Ft. Lauderdale Nissan, Inc.
G.B. Import Sales & Service
Holding, LLC
G.B. Import Sales & Service, LLC
GA CDJR
Motors, LLC
GA Columbus Imports, LLC
GA F Imports, LLC
GA H Imports, LLC
GA HY Imports, LLC
Gene Evans Ford, LLC
George Sutherlin Nissan, LLC
Government Boulevard Motors, Inc.
Gulf Management, Inc.
Hayward Dodge, Inc.
Hillard Auto Group, Inc.
Hollywood Imports Limited, Inc.
Hollywood Kia, Inc.
Horizon Chevrolet, Inc.
House of Imports Holding, LLC
House of Imports, Inc.
Houston Auto M. Imports Greenway, Ltd.
Houston Auto M. Imports North, Ltd.
Houston Imports
Greenway GP, LLC
Houston Imports North GP, LLC
HV
Collision, LLC
HVA Imports, LLC
HVM Imports, LLC
HVS Motors, LLC
HVVW Motors, LLC
|
Irvine Imports Holding, LLC |
Irvine Imports, Inc. |
Irvine Toyota/Nissan/Volvo Limited Partnership |
Jemautco, Inc. |
Jerry Gleason Chevrolet, Inc. |
Jerry Gleason Dodge, Inc. |
Jim Quinlan Chevrolet Co. |
Joe MacPherson Ford |
Joe MacPherson Imports No. I |
Joe MacPherson Infiniti |
Joe MacPherson Infiniti Holding, LLC |
Joe MacPherson Oldsmobile |
John M. Lance Ford, LLC |
J-R Advertising Company |
J-R Motors Company North |
J-R Motors Company South |
JRJ Investments, Inc. |
Kenyon Dodge, Inc. |
Kings Crown Ford, Inc. |
Kirkland Motors, Inc. |
L.P. Evans Motors WPB, Inc. |
L.P. Evans Motors, Inc. |
Lance Children, Inc. |
Leesburg Imports, LLC |
Leesburg Motors, LLC |
Les Marks Chevrolet, Inc. |
Lew Webb`s Ford, Inc. |
Lew Webbs Irvine Nissan Holding, LLC |
Lew Webbs Irvine Nissan, Inc. |
Lewisville Imports GP, LLC |
Lewisville Imports, Ltd. |
Lot 4 Real Estate Holdings, LLC |
Luxury Orlando Imports, Inc. |
MacHoward Leasing |
MacHoward Leasing Holding, LLC |
MacPherson Enterprises, Inc. |
Magic Acquisition Corp. |
Magic Acquisition Holding, LLC |
Maitland Luxury Imports, Inc. |
Marks Family Dealerships, Inc. |
Marks Transport, Inc. |
|
MC/RII, LLC |
Mealey Holdings, Inc. |
Metro Chrysler Jeep, Inc. |
Midway Chevrolet, Inc. |
Mike Hall Chevrolet, Inc. |
Mike Shad Chrysler Plymouth Jeep Eagle, Inc. |
Mike Shad Ford, Inc. |
Miller-Sutherlin Automotive, LLC |
Mission Blvd. Motors, Inc. |
Mr. Wheels Holding, LLC |
Mr. Wheels, Inc. |
Mullinax East, LLC |
Mullinax Ford North Canton, Inc. |
Mullinax Ford South, Inc. |
Mullinax Lincoln-Mercury, Inc. |
Mullinax Used Cars, Inc. |
Naperville Imports, Inc. |
Newport Beach Cars Holding, LLC |
Newport Beach Cars, LLC |
Nichols Ford, Ltd. |
Nichols GP, LLC |
Nissan of Brandon, Inc. |
Northpoint Chevrolet, LLC |
Northwest Financial Group, Inc. |
Ontario Dodge, Inc. |
Oxnard Venture Holdings, Inc. |
Payton-Wright Ford Sales, Inc. |
Pembroke Motors, Inc. |
Peyton Cramer Automotive |
Peyton Cramer Automotive Holding, LLC |
Peyton Cramer F. Holding, LLC |
Peyton Cramer Ford |
Peyton Cramer Infiniti |
Peyton Cramer Infiniti Holding, LLC |
Peyton Cramer Jaguar |
Peyton Cramer Lincoln-Mercury |
Peyton Cramer LM Holding, LLC |
Pierce Automotive Corporation |
Pierce, LLC |
Pitre Chrysler-Plymouth-Jeep of Scottsdale, Inc. |
Plains Chevrolet GP, LLC |
|
Plains Chevrolet, Ltd. |
PMWQ, Inc. |
PMWQ, Ltd. |
Port City Imports, Inc. |
Prime Auto Resources, Inc. |
Quality Nissan GP, LLC |
Quality Nissan, Ltd. |
Quinlan Motors, Inc. |
R. Coop Limited |
R.L. Buscher II, Inc. |
R.L. Buscher III, Inc. |
Real Estate Holdings, Inc. |
Renton H Imports, Inc. |
Republic DM Property Acquisition Corp. |
Republic Resources Company |
Republic Risk Management Services, Inc. |
Resources Aviation, Inc. |
RI Merger Corp. |
RI/BB Acquisition Corp. |
RI/BBNM Acquisition Corp. |
RI/BRC Real Estate Corp. |
RI/DM Acquisition Corp. |
RI/Hollywood Nissan Acquisition Corp. |
RI/LLC Acquisition Corp. |
RI/RMC Acquisition GP, LLC |
RI/RMC Acquisition, Ltd. |
RI/RMP Acquisition Corp. |
RI/RMT Acquisition GP, LLC |
RI/RMT Acquisition, Ltd. |
RI/WFI Acquisition Corporation |
RKR Motors, Inc. |
Roseville Motor Corporation |
Roseville Motor Holding, LLC |
Sahara Imports, Inc. |
Sahara Nissan, Inc. |
Saul Chevrolet Holding, LLC |
SCM Realty, Inc. |
Shamrock F. Holding, LLC |
Shamrock Ford, Inc. |
Six Jays LLC |
SMI Motors Holding, LLC |
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SMI Motors, Inc. |
South Broadway Motors, LLC |
Southwest Motors of Denver, LLC |
Spitfire Properties, Inc. |
Star Motors, LLC |
Steakley Chevrolet GP, LLC |
Steakley Chevrolet, Ltd. |
Steeplechase Motor Company |
Steve Moore Chevrolet Delray, LLC |
Steve Moore Chevrolet, LLC |
Steve Moores Buy-Right Auto Center, Inc. |
Stevens Creek Holding, LLC |
Stevens Creek Luxury Imports Holding, LLC |
Stevens Creek Luxury Imports, Inc. |
Stevens Creek Motors, Inc. |
Sunrise Nissan of Jacksonville, Inc. |
Sunrise Nissan of Orange Park, Inc. |
Sunset Pontiac-GMC Truck South, Inc. |
Sunset Pontiac-GMC, Inc. |
Superior Nissan, Inc. |
Sutherlin Chrysler-Plymouth Jeep-Eagle, LLC |
Sutherlin H. Imports, LLC |
Sutherlin Imports, LLC |
Sutherlin Nissan, LLC |
Sutherlin Town Center, Inc. |
Tartan Advertising, Inc. |
Tasha Incorporated |
Terry York Motor Cars Holding, LLC |
Terry York Motor Cars, Ltd. |
Texan Ford Sales, Ltd. |
Texan Ford, Inc. |
Texan Sales GP, LLC |
Texas Management Companies LP, LLC |
The Consulting Source, Inc. |
The Pierce Corporation II, Inc. |
Tinley Park A. Imports, Inc. |
Tinley Park J. Imports, Inc. |
Tinley Park V. Imports, Inc. |
TN CDJR Motors, LLC |
TN F Imports, LLC |
Torrance Nissan Holding, LLC |
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Torrance Nissan, LLC |
Tousley Ford, Inc. |
Toyota Cerritos Limited Partnership |
Triangle Corporation |
T-West Sales & Service, Inc. |
Valencia Auto Imports Holding, LLC |
Valencia B. Imports Holding, LLC |
Valencia B. Imports, Inc. |
Valencia Dodge |
Valencia Dodge Holding, LLC |
Valencia H. Imports Holding, LLC |
Valencia H. Imports, Inc. |
Valley Chevrolet, LLC |
Vanderbeek Motors Holding, LLC |
Vanderbeek Motors, Inc. |
Vanderbeek Olds/GMC Truck, Inc. |
Vanderbeek Truck Holding, LLC |
Village Motors, LLC |
Vince Wiese Chevrolet, Inc. |
Vince Wiese Holding, LLC |
W.O. Bankston Nissan, Inc. |
Wallace Dodge, LLC |
Wallace Ford, LLC |
Wallace Lincoln-Mercury, LLC |
Wallace Nissan, LLC |
Webb Automotive Group, Inc. |
West Colorado Motors, LLC |
West Colton Cars, Inc. |
West Side Motors, Inc. |
Westgate Chevrolet GP, LLC |
Westgate Chevrolet, Ltd. |
Westmont A. Imports, Inc. |
Westmont B. Imports, Inc. |
Westmont M. Imports, Inc. |
Woody Capital Investment Company II |
Woody Capital Investment Company III |
Working Man`s Credit Plan, Inc. |
SCHEDULE C
Issuer Free Writing Prospectuses
Pricing Term Sheet, dated September 16, 2015, relating to the Securities approved by the Representatives and filed with the Commission pursuant to Rule
433
Exhibit A-1
Form of Opinion of Counsel for the Company
Opinion of counsel for the Company and the Guarantors to be delivered pursuant to Section 6(d) of the Underwriting Agreement.
References to the Prospectus in this Exhibit A include any supplements thereto at the Closing Date.
1. |
Based solely on our review of the Delaware Certificate, the Company is duly incorporated and is validly existing and in good standing under the DGCL. |
2. |
Based solely on our review of the Foreign Qualification Certificate, the Company has the status identified on Schedule II hereto set forth opposite the jurisdiction identified on such Schedule, as of the date identified
on such Schedule. |
3. |
The Company has the corporate power and authority to execute and deliver each of the Transaction Agreements and to consummate the issuance and sale of the Notes contemplated thereby under the DGCL. |
4. |
The Underwriting Agreement has been duly authorized, executed and delivered by all requisite corporate action on the part of the Company under the DGCL and duly executed and delivered by the Company under the laws of
the State of New York to the extent that such execution and delivery is governed by the laws of the State of New York. |
5. |
The Indenture has been duly authorized, executed and delivered by all requisite corporate action on the part of the Company under the DGCL and constitutes the valid and binding obligation of the Company and the
Guarantors, enforceable against the Company and the Guarantors in accordance with its terms under the laws of the State of New York. |
6. |
Neither the execution and delivery by the Company of the Transaction Agreements nor the consummation by the Company of the issuance and sale of the Notes contemplated thereby: (i) conflicts with the Organizational
Documents, (ii) constitutes a violation of, or a default under, any Scheduled Contract or (iii) violates any law, rule or regulation under the DGCL, the State of New York or the United States of America. |
7. |
Neither the execution and delivery by the Company of the Transaction Agreements nor the consummation by the Company of the issuance and sale of the Notes contemplated thereby requires the consent, approval, licensing or
authorization of, or any filing, recording or registration with, any governmental authority under any law, rule or regulation of the State of Delaware, the State of New York or the United States of America except for those consents, approvals,
licenses and authorizations already obtained and those filings, recordings and registrations already made. |
8. |
The Note Certificate has been duly authorized by all requisite corporate action on the part of the Company and duly executed by the Company under the DGCL, and when duly authenticated by the Trustee and issued and
delivered by the Company against payment therefor in accordance with the terms of the Underwriting Agreement and the Indenture, the Note Certificate will constitute a valid and binding obligation of the Company, entitled to the benefits of the
Indenture and enforceable against the Company in accordance with its terms under the laws of the State of New York. |
9. |
The statements in the Prospectus and the General Disclosure Package under the caption Description of the Notes, (other than Book-entry Issuance) insofar as such statements purport to
summarize certain provisions of the Indenture and the Note Certificate, fairly summarize such provisions in all material respects. |
10. |
The Company is not and, solely after giving effect to the offering and sale of the Notes and the application of the proceeds thereof as described in the Prospectus and the General Disclosure Package under the caption
Use of Proceeds, will not be an investment company as such term is defined in the Investment Company Act of 1940, as amended. |
11. |
That under current U.S. federal income tax law, although the discussion set forth in the Preliminary Prospectus and the Prospectus under the heading U.S. Federal Income Tax Considerations does not purport to
discuss all possible U.S. federal income tax consequences of the ownership or disposition of the Securities by a non-U.S. holder (as defined therein), such discussion constitutes, in all material respects, a fair and accurate summary of the U.S.
federal income tax consequences that are anticipated to be material to non-U.S. holders who purchase the Securities. |
Counsel shall also advise that, assuming the accuracy of the representations and warranties of the Company set forth in Section 1(c) of
the Underwriting Agreement, the Registration Statement became effective upon filing with the Commission pursuant to Rule 462 of the Rules and Regulations and, pursuant to Section 309 of the Trust Indenture Act of 1939, the Indenture has been
qualified under the Trust Indenture Act of 1939, and to our knowledge, based solely upon our review of the Commissions website, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for
that purpose have been instituted or are pending or threatened by the Commission.
In addition, counsel shall state substantially as
follow: we have participated in conferences with officers and other representatives of the Company, representatives of the independent registered public accountants of the Company, representatives of the Underwriters and counsel for the Underwriters
at which the contents of the Registration Statement, the Prospectus, the Disclosure Package (as defined below) and related matters were discussed. We did not participate in the preparation of the Incorporated Documents but have, however, reviewed
such documents and discussed the business and affairs of the Company with officers and other representatives of the Company. We do not pass upon, or assume any responsibility for, the accuracy, completeness or fairness of the statements contained or
incorporated by reference in the Registration Statement, the Prospectus or the Disclosure Package and have made no independent check or verification thereof (except to the limited extent referred to (i) in paragraph 9 of our opinion, in our
capacity as special counsel to the Company, to you dated the date hereof and (ii) in our opinion, in our capacity as special tax counsel to the Company, to you dated the date hereof).
On the basis of the foregoing, (i) the Registration Statement, at the Effective Time (as
defined below) and the Prospectus, as of the date of the Prospectus Supplement, appeared on their face to be appropriately responsive in all material respects to the requirements of the Securities Act and the Rules and Regulations (except that in
each case we do not express any view as to the financial statements, schedules and other financial information included or incorporated by reference therein or excluded therefrom or the Statement of Eligibility on Form
T-1 (the Form T-1)) and (ii) no facts have come to our attention that have caused us to believe that the Registration Statement, at the Effective Time,
contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, or that the Prospectus, as of the date of the Prospectus Supplement and as
of the date hereof contained or contains an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not
misleading (except that in each case we do not express any view as to the financial statements, schedules and other financial information included or incorporated by reference therein or excluded therefrom, the report of managements assessment
of the effectiveness of internal controls over financial reporting or the auditors report on the effectiveness of the Companys internal controls over financial reporting, or the statements contained in the exhibits to the Registration
Statement, including the Form T-1). In addition, on the basis of the foregoing, no facts have come to our attention that have caused us to believe that the Disclosure Package, as of the Applicable Time (as
defined below), contained an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading (except that we do
not express any view as to the financial statements, schedules and other financial information included or incorporated by reference therein or excluded therefrom, the report of managements assessment of the effectiveness of internal controls
over financial reporting or the auditors report on the effectiveness of the Companys internal controls over financial reporting, or the statements contained in the exhibits to the Registration Statement, including the Form T-1, to the extent included or incorporated by reference therein).
Exhibit A-2
Form of Opinion of In-House Counsel for the Company
1. |
The Company and each of the Guarantors has been duly incorporated or organized, as the case may be, and each of the Guarantors is validly existing in good standing under the laws of its respective state of incorporation
or organization, with corporate, limited liability company or partnership, as the case may be, power and authority to own, lease and operate its assets and properties and conduct its business to the extent described in the General Disclosure Package
and the Prospectus. |
2. |
Each of the Company and the Guarantors has the corporate, limited liability company or partnership, as the case may be, power and authority to execute and deliver each of the Transaction Documents to which it is a party
and to consummate the issuance and sale of the Securities contemplated thereby. |
3. |
Each of the Guarantors is duly qualified as a foreign corporation, limited liability company or partnership, as the case may be, to transact business and is in good standing in each jurisdiction in which such
qualification is required, whether by reason of the ownership or leasing of property or the conduct of business, except where the failure so to qualify or to be in good standing would not result in a Material Adverse Effect. |
4. |
No Governmental Approval, which has not been obtained or taken and is not in full force and effect, is required to authorize, or is required for, the execution or delivery of each of the Transaction Documents by the
Guarantors or the consummation by the Guarantors of the issuance of the Guarantees contemplated thereby. |
5. |
To my knowledge, neither the Company nor any of its Subsidiaries is in violation of its charter or by-laws and, except where such defaults would not result in a Material Adverse Effect, no default by the Company or any
of its Subsidiaries exists in the due performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, loan agreement, note, lease or other agreement or instrument that is described or
referred to in each of the General Disclosure Package or Prospectus or incorporated by reference therein. |
6. |
The Underwriting Agreement has been duly authorized, executed and delivered by all requisite corporate, limited liability or partnership, as applicable, action on the part of the Guarantors. |
7. |
The Indenture has been duly authorized, executed and delivered by all requisite corporate, limited liability or partnership, as applicable, action on the part of the Guarantors and constitutes the valid and binding
obligation of each of the Guarantors, enforceable against each of the Guarantors in accordance with its terms. |
8. |
The Guarantees are in the form contemplated by the Indenture and have been duly authorized and executed by each of the Guarantors and, when executed and delivered by each of the Guarantors in accordance with the
provisions of the Indenture, each Guarantee will constitute the valid and binding obligation of each of the Guarantors, enforceable against each of the Guarantors in accordance with its terms. |
9. |
The documents incorporated by reference in each of the General Disclosure Package and the Prospectus (other than the financial statements and supporting schedules therein, as to which no opinion is being rendered), when
they were filed with the Commission complied as to form in all material respects with the requirements of the Exchange Act and the rules and regulations of the Commission thereunder. |
10. |
To my knowledge, there is not pending or threatened any action, suit, proceeding, inquiry or investigation, to which the Company or any Subsidiary is a party, or to which the assets or property of the Company or any
Subsidiary thereof is subject, before or brought by any court or governmental agency or body, which might reasonably be expected to result in a Material Adverse Effect, or which might reasonably be expected to materially and adversely affect the
properties or assets thereof or the consummation of the transactions contemplated in the Underwriting Agreement or the performance by the Company of its obligations thereunder or the transactions contemplated by each of the General Disclosure
Package or the Prospectus. |
11. |
Neither the execution and delivery by the Guarantors of each of the Transaction Documents nor the consummation by the Guarantors of the issuance of the Guarantees, will (i) conflict with the Certificate of
Incorporation or Bylaws of the Guarantors, (ii) constitute a violation of, or breach or default under, the terms of any Applicable Contract or (iii) violate or conflict with, or result in any contravention of, any Applicable Law. I do not
express any opinion, however, as to whether the execution, delivery and performance by the Guarantors of each of the Transaction Documents will constitute a violation of, or a default under, any covenant, restriction or provision with respect to
financial ratios or tests or any aspect of the financial condition or results of operations of the Guarantors or any of their subsidiaries. |
In addition, I have participated in conferences with officers and other representatives of the Company, counsel for the Company,
representatives of the independent registered public accountants of the Company, representatives of the Underwriters and counsel for the Underwriters at which the contents of the Registration Statement, the Prospectus, the Disclosure Package (as
defined below) and related matters were discussed. I do not pass upon, or assume any responsibility for, the accuracy, completeness or fairness of the statements contained or incorporated by reference in the Registration Statement, the Prospectus or
the Disclosure Package and have made no independent check or verification thereof.
On the basis of the foregoing, (i) the
Registration Statement, at the Effective Time (as defined below) and the Prospectus, as of the date of the Prospectus Supplement, appeared on their face to be appropriately responsive in all material respects to the requirements of the Securities
Act and the Rules and Regulations (except that in each case I do not express any view as to the financial statements, schedules and other financial information included or incorporated by reference therein or excluded therefrom or the Statement of
Eligibility on Form T 1 (the Form T 1)) and (ii) no facts have come to my attention that have caused me to believe that the Registration Statement, at
the Effective Time, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading,
or that the Prospectus, as of the date of the Prospectus Supplement and as of the date hereof contained or contains an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not misleading (except that in each case I do not express any view as to the financial statements, schedules and other financial information included or incorporated by reference
therein or excluded therefrom, the report of managements assessment of the effectiveness of internal controls over financial reporting or the auditors report on the effectiveness of the Companys internal controls over financial
reporting, or the statements contained in the exhibits to the Registration Statement, including the Form T 1). In addition, on the basis of the foregoing, no facts have come to my attention that have caused me to believe that the Disclosure Package,
as of the Applicable Time (as defined below), contained an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not
misleading (except that I do not express any view as to the financial statements, schedules and other financial information included or incorporated by reference therein or excluded therefrom, the report of managements assessment of the
effectiveness of internal controls over financial reporting or the auditors report on the effectiveness of the Companys internal controls over financial reporting, or the statements contained in the exhibits to the Registration
Statement, including the Form T 1, to the extent included or incorporated by reference therein).
Exhibit 4.2
AutoNation, Inc., as Issuer
The Guarantors Party Hereto, as Guarantors
and
Wells Fargo Bank,
National Association, as Trustee
Supplemental Indenture
Dated as of September 21, 2015
to Indenture
Dated as of
April 14, 2010
Establishing a series of Securities designated
3.350% Senior Notes due 2021
TABLE OF CONTENTS
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Page |
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ARTICLE I |
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DEFINITIONS AND INCORPORATION BY REFERENCE |
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SECTION 1.01 |
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Relation to Base Indenture |
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1 |
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SECTION 1.02 |
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Definitions |
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1 |
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ARTICLE II |
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CREATION, FORMS, TERMS AND CONDITIONS OF THE SECURITIES |
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SECTION 2.01 |
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Creation of the Notes |
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10 |
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SECTION 2.02 |
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Form of the Notes |
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10 |
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SECTION 2.03 |
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Terms and Conditions of the Notes |
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11 |
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SECTION 2.04 |
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Ranking |
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15 |
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SECTION 2.05 |
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Sinking Fund |
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15 |
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SECTION 2.06 |
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Place of Payment |
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15 |
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SECTION 2.07 |
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Transfer and Exchange |
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15 |
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SECTION 2.08 |
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Cancellation and/or Adjustment of Global Notes |
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16 |
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ARTICLE III |
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REDEMPTION OF THE NOTES |
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SECTION 3.01 |
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Optional Redemption by Company |
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16 |
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ARTICLE IV |
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CHANGE OF CONTROL |
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SECTION 4.01 |
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Repurchase at the Option of Holders Upon Change of Control Repurchase Event |
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17 |
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ARTICLE V |
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COVENANTS |
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SECTION 5.01 |
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Limitation on Liens |
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18 |
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SECTION 5.02 |
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Limitations on Sale and Leaseback Transactions |
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21 |
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SECTION 5.03 |
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Limitation on Issuances of Guarantees of Indebtedness |
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21 |
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SECTION 5.04 |
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Merger, Consolidation or Sale of Assets |
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22 |
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SECTION 5.05 |
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Compliance Certificate |
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23 |
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ARTICLE VI |
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DEFAULTS AND REMEDIES |
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SECTION 6.01 |
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Events of Default |
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24 |
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ARTICLE VII |
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DEFEASANCE AND COVENANT DEFEASANCE; DISCHARGE |
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SECTION 7.01 |
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Option to Effect Legal Defeasance or Covenant Defeasance |
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25 |
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SECTION 7.02 |
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Defeasance and Discharge |
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25 |
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SECTION 7.03 |
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Covenant Defeasance |
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26 |
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SECTION 7.04 |
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Conditions to Defeasance or Covenant Defeasance |
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26 |
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Page |
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SECTION 7.05 |
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Deposited Money and U.S. Government Obligations to Be Held in Trust; Other Miscellaneous Provisions |
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27 |
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SECTION 7.06 |
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Repayment to the Company |
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28 |
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SECTION 7.07 |
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Reinstatement |
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28 |
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SECTION 7.08 |
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Discharge |
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28 |
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ARTICLE VIII |
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AMENDMENT, SUPPLEMENT AND WAIVER |
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SECTION 8.01 |
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Without Consent of Holders of Notes |
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29 |
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SECTION 8.02 |
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With Consent of Holders of Notes |
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30 |
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SECTION 8.03 |
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Revocation and Effect of Consents |
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31 |
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SECTION 8.04 |
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Notation on or Exchange of Notes |
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32 |
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SECTION 8.05 |
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Trustee to Sign Amendments, etc. |
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32 |
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ARTICLE IX |
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GUARANTEES |
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SECTION 9.01 |
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Guarantee |
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32 |
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SECTION 9.02 |
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Limitation on Guarantor Liability |
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33 |
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SECTION 9.03 |
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Execution and Delivery of Guarantee |
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33 |
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SECTION 9.04 |
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Release of Guarantor |
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34 |
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SECTION 9.05 |
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Acknowledgement of Manufacturers Letter Agreements |
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35 |
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SECTION 9.06 |
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Certain California Law Waivers |
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35 |
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ARTICLE X
MISCELLANEOUS PROVISIONS |
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SECTION 10.01 |
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Ratification of Base Indenture |
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36 |
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SECTION 10.02 |
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Conflict with Trust Indenture Act |
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36 |
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SECTION 10.03 |
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Conflict with Base Indenture |
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36 |
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SECTION 10.04 |
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Effect of Headings |
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36 |
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SECTION 10.05 |
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Successors and Assigns |
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36 |
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SECTION 10.06 |
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Separability Clause |
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36 |
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SECTION 10.07 |
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Governing Law |
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36 |
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SECTION 10.08 |
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Waiver of Jury Trial |
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36 |
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SECTION 10.09 |
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Counterparts |
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36 |
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EXHIBITS |
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EXHIBIT A |
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Form of Note |
EXHIBIT B |
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Form of Guarantee |
EXHIBIT C |
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Form of Supplemental Indenture Evidencing Future Guarantors |
EXHIBIT D |
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Form of Affidavit of Out-of-State Execution |
EXHIBIT E |
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Form of Affidavit of Out-of-State Receipt and Acceptance |
ii
SUPPLEMENTAL INDENTURE, dated as of September 21, 2015 (this Supplemental
Indenture), by and among AutoNation, Inc., a Delaware corporation (the Company), the Guarantors (as defined below), and Wells Fargo Bank, National Association, a national banking association, as trustee (the Trustee).
RECITALS OF THE COMPANY
WHEREAS, the Company and the Trustee have heretofore executed and delivered an Indenture, dated as of April 14, 2010 (the Base
Indenture and, together with this Supplemental Indenture, the Indenture), providing for the issuance from time to time of the Companys debentures, notes or other evidences of Indebtedness (herein and therein called the
Securities), to be issued in one or more series as provided in the Base Indenture;
WHEREAS, Section 14.01 of the Base
Indenture permits the Company and the Trustee to enter into a supplemental indenture to the Base Indenture to establish the form and terms of any series of Securities;
WHEREAS, Section 2.01 of the Base Indenture permits the form of Securities of any series to be established in a supplemental indenture to
the Base Indenture;
WHEREAS, Section 3.01 of the Base Indenture permits certain terms of any series of Securities to be established
pursuant to a supplemental indenture to the Base Indenture;
WHEREAS, pursuant to Sections 2.01 and 3.01 of the Base Indenture, the
Company desires to provide for the establishment of a new series of Securities in an initial aggregate principal amount of $300,000,000 to be designated the 3.350% Senior Notes due 2021 (hereinafter called the Notes) under
the Base Indenture, the form and substance of such Notes and the terms, provisions and conditions thereof to be set forth as provided in the Base Indenture and this Supplemental Indenture; and
WHEREAS, all things necessary to make this Supplemental Indenture a valid agreement of the Company and the Guarantors, in accordance with its
terms, have been done;
NOW, THEREFORE, for and in consideration of the foregoing and the purchase of the Notes established by this
Supplemental Indenture by the Holders (as defined below) thereof, it is mutually agreed, for the equal and proportionate benefit of all such Holders, as follows:
ARTICLE I
DEFINITIONS
AND INCORPORATION BY REFERENCE
SECTION 1.01 Relation to Base Indenture. This Supplemental Indenture constitutes a part of
the Base Indenture (the provisions of which, as modified by this Supplemental Indenture, shall apply to the Notes) in respect of the Notes but shall not modify, amend or otherwise affect the Base Indenture insofar as it relates to any other series
of Securities or modify, amend or otherwise affect in any manner the terms and conditions of the Securities of any other series.
SECTION 1.02 Definitions. For all purposes of this Supplemental Indenture, the capitalized terms used herein (i) which are
defined in this Section 1.02 have the respective meanings assigned hereto in this Section 1.02 and (ii) which are defined in the Base Indenture (and which are not defined in this Section 1.02) have the respective meanings
assigned thereto in the Base Indenture. For all purposes of this Supplemental Indenture:
(a) Unless otherwise indicated or the context
otherwise requires, any reference to an Article or Section refers to an Article or Section, as the case may be, of this Supplemental Indenture;
(b) The words herein, hereof and hereunder and words of
similar import refer to this Supplemental Indenture as a whole and not to any particular Article, Section or other subdivision;
(c)
Headings are for convenience or reference only and do not affect interpretations; and
(d) The terms defined in this Section 1.02(d)
have the meanings assigned to them in this Section and include the plural as well as the singular:
Affiliate means, as to any
Person, any other Person who, directly or indirectly, through one or more intermediaries, controls, or is controlled by, or is under common control with, the first referred to Person. The term control means the possession, directly or
indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract or otherwise.
Applicable Procedures has the meaning set forth in Section 2.07(a).
Attributable Debt means, with respect to any Sale and Leaseback Transaction, at the time of determination, the total obligation
(discounted to the present value at the imputed rate of interest as determined in good faith by the Company) of the lessee for rental payments (other than amounts required to be paid on account of taxes, assessments, maintenance, repairs, insurance,
water rates or similar charges required to be paid by such lessee thereunder and other items which do not constitute payments for property rights or any amount required to be paid by lessee thereunder contingent upon the amount of maintenance,
repairs, insurance, taxes, assessments, water charges or similar charges) during the remaining portion of the initial term of the lease included in such Sale and Leaseback Transaction. In the case of any lease which is terminable by the lessee upon
the payment of a penalty, such rental payments shall be the lesser of (x) the amount determined assuming termination upon the first date such lease may be terminated (in which case the amount shall also include the amount of the penalty, but
shall not include any rent that would be required to be paid under such lease subsequent to the first date upon which it may be so terminated) or (y) the amount determined assuming no such termination.
Automobile Retailing Activities means vehicle retailing, wholesaling, leasing, financing, servicing and related activities.
Bankruptcy Law means Title 11, United States Bankruptcy Code of 1978, or any similar United States federal or state law or foreign
law relating to the bankruptcy, insolvency, receivership, winding up, liquidation, reorganization or relief of debtors or any amendment to, succession to or change in any such law.
Base Indenture has the meaning given to such term in the recitals hereof.
Capital Lease Obligation of any Person means all monetary obligations of such Person and its Subsidiaries on a consolidated basis
under any capital lease of (or other agreement conveying the right to use) real or personal property which, in accordance with GAAP, is required to be recorded as a capitalized lease obligation.
2
Capital Stock of any Person means any and all shares, interests, participations,
rights in or other equivalents (however designated) of such Persons capital stock, other equity interests whether now outstanding or issued after the date of the Base Indenture, partnership interests (whether general or limited), limited
liability company interests, any other interest or participation that confers on a Person that right to receive a share of the profits and losses of, or distributions of assets of, the issuing Person, including any Preferred Stock, and any rights
(other than debt securities convertible into Capital Stock), warrants or options exchangeable for or convertible into such Capital Stock.
Change of Control shall occur if:
(1) any Person or group (as such terms are used in Sections 13(d)(3) and 14(d)(2) of the Exchange Act), is or becomes
the beneficial owner (as defined in Rules 13d-3 and 13d-5 under the Exchange Act, except that for purposes of this clause (1) such Person shall be deemed to have beneficial ownership of all shares that any such Person
has the right to acquire, whether such right is exercisable immediately or only after the passage of time), directly or indirectly, of more than 50% of the total outstanding Voting Stock of the Company;
(2) the Company consolidates with or merges with or into any Person, or any Person consolidates with or merges into or with the Company, in
any such event pursuant to a transaction in which the outstanding Voting Stock of the Company is converted into or exchanged for cash, securities or other property, other than any such transaction where the outstanding Voting Stock of the Company is
converted into or exchanged for Voting Stock of such surviving Person representing a majority of the voting power of all Voting Stock of such surviving Person immediately after giving effect to such issuance;
(3) the sale, lease, transfer, conveyance or other disposition (other than by way of merger or consolidation), in one or a series of related
transactions, of all or substantially all of the assets of the Company and its Subsidiaries taken as a whole to any Person or group (as such terms are used in Section 13(d) and 14(d) of the Exchange Act) other than to
the Company or one of the Companys Subsidiaries; or
(4) the Company is liquidated or dissolved or adopts a plan of liquidation or
dissolution other than in a transaction which complies with Section 5.04.
Change of Control Offer has the meanings set
forth in Section 4.01(b).
Change of Control Repurchase Event means the occurrence of both a Change of Control and a
Ratings Event.
Commodity Price Protection Agreement means any forward contract, commodity swap, commodity option or other
similar financial agreement or arrangement relating to, or the value which is dependent upon, fluctuations in commodity prices.
Company has the meaning given to such term in the preamble hereof.
Comparable Treasury Issue means the United States Treasury security selected by an Independent Investment Banker as having a
maturity comparable to the remaining term (as measured from the date of redemption) of the Notes that would be utilized, at the time of selection and in accordance with customary financial practice, in pricing new issues of corporate debt securities
of comparable maturity to the remaining term of the Notes.
3
Comparable Treasury Price means, with respect to any Redemption Date, (i) the
average of the Reference Treasury Dealer Quotations obtained by the Company for such Redemption Date, after excluding the highest and lowest of such Reference Treasury Dealer Quotations, (ii) if the Company is unable to obtain at least four
such Reference Treasury Dealer Quotations, the average of all Reference Treasury Dealer Quotations obtained by the Company or (iii) if the Company can only obtain one Reference Treasury Dealer Quotation, such quotation.
Consolidated Net Tangible Assets means, of any Person as of any date, the total assets of such Person and its Subsidiaries as of
the most recent fiscal quarter end for which a consolidated balance sheet of such Person and its Subsidiaries is available as of that date, minus (i) all current liabilities of such Person and its Subsidiaries reflected on such balance sheet
(excluding any current liabilities for borrowed money having a maturity of less than 12 months but by its terms being renewable or extendible beyond 12 months from such date at the option of the borrower) and (ii) all goodwill, tradenames,
trademarks, patents, unamortized debt discount (to the extent included in total assets) and expense and other like intangible assets of such Person and its Subsidiaries reflected on such balance sheet, all calculated on a consolidated basis in
accordance with GAAP.
Covenant Defeasance has the meaning set forth in Section 7.03 hereof.
Credit Agreement means the amended and restated credit agreement providing for revolving credit and term loan borrowings, among
the Company, as borrower, JPMorgan Chase Bank, N.A., as administrative agent, the syndication agent and documentation agents named therein, and the lenders party thereto from time to time, dated as of December 3, 2014, as amended as of the
Issue Date, as such agreement, in whole or in part, in one or more instances, may be amended, renewed, extended, substituted, refinanced, restructured, replaced, supplemented or otherwise modified from time to time (including, without limitation,
any successive renewals, extensions, substitutions, refinancings, restructurings, replacements, supplements or other modifications of the foregoing).
Currency Agreement means in respect of a Person any foreign exchange contract, currency swap agreement or other similar agreement
or arrangements designed to protect such Person against fluctuations in currency values.
Debt Facilities means one or more
debt facilities or commercial paper facilities, in each case with banks or other financial institutions or institutional lenders, or other Persons which provide, originate or arrange debt or commercial paper facilities, providing for revolving
credit loans, term loans, receivables financing or letters of credit, including the Credit Agreement, and/or one or more indentures relating to debt securities, in each case in existence from time to time as such facilities, in whole or in part, in
one or more instances, may be amended, renewed, extended, substituted, refinanced, restructured, replaced, supplemented or otherwise modified from time to time (including, without limitation, any successive renewals, extensions, substitutions,
refinancings, restructurings, replacements, supplements or other modifications of the foregoing).
Defeasance has the meaning
set forth in Section 7.02 hereof.
Definitive Notes means certificated Notes registered in the name of the Holder thereof
and issued in accordance with Section 2.02 hereof, substantially in the form of Exhibit A hereto, except that such Security shall not bear the Global Note Legend.
4
Depositary means, with respect to Global Notes issued under this Supplemental
Indenture, DTC.
Dollar and $ means the lawful currency of the United States of America.
Domestic Subsidiary means a Subsidiary of the Company that is organized or existing under the laws of the United States, any state
thereof, the District of Columbia or any territory thereof.
DTC means The Depository Trust Company, its nominees and their
successors and assigns.
Eligible Special Purpose Entity means any Person which is or is not a Subsidiary of the Company which
has been formed by or for the benefit of the Company or any Subsidiary of the Company for the purpose of (i) financing or refinancing, leasing, selling or securitizing Vehicles or related receivables and which finances, refinances or
securitizes Vehicles or related receivables of, leases Vehicles to or purchases Vehicles or related receivables from the Company or any Subsidiary of the Company; or (ii) financing or refinancing consumer receivables, leases, loans or retail
installment contracts.
Exchange Act means the Securities Exchange Act of 1934, as amended, or any successor statute, and the
rules and regulations promulgated by the Securities and Exchange Commission thereunder.
Generally Accepted Accounting
Principles or GAAP means generally accepted accounting principles and interpretations thereof in the United States, consistently applied, which are in effect as of the date hereof.
Global Note means a single permanent fully-registered global note in book-entry form, without coupons, substantially in the form
of Exhibit A attached hereto.
Global Note Legend means a legend containing substantially the legend set forth in the
form of Note attached as Exhibit A hereto.
Guarantee means any obligation, contingent or otherwise, of any Person
directly or indirectly guaranteeing any Indebtedness of any other Person and any obligation, direct or indirect, contingent or otherwise, of such Person (1) to purchase or pay (or advance or supply funds for the purchase or payment of) such
Indebtedness of such other Person (whether arising by virtue of partnership arrangements, or by agreement to keep well, to purchase assets, goods, securities or services, to take or pay or to maintain financial statement conditions or otherwise) or
(2) entered into for purposes of assuring in any other manner the obligee of such Indebtedness of the payment thereof or to protect such obligee against loss in respect thereof (in whole or in part); provided, however, that the
term guarantee will not include endorsements for collection or deposit in the ordinary course of business. The term guarantee, when used as a verb, has a correlative meaning.
Guarantors means each Domestic Subsidiary of the Company that executes a Subsidiary Guarantee in accordance with the provisions of
this Supplemental Indenture, and their respective successors and assigns.
Hedging Obligations means the obligations of any
Person pursuant to any Interest Rate Agreement or Currency Agreement.
5
Holder means the Person in whose name a Note is registered on the Register.
Incur means issue, assume, guarantee or otherwise become liable for Indebtedness.
Indebtedness means, with respect to any Person, obligations of such Person for borrowed money (including, without limitation,
Indebtedness for borrowed money evidenced by notes, bonds, debentures or similar instruments), excluding any trade payables and other current liabilities arising in the ordinary course of business.
Indenture has the meaning given to such term in the recitals hereof.
Independent Investment Banker means J.P. Morgan Securities LLC, Merrill Lynch, Pierce, Fenner & Smith Incorporated, Wells
Fargo Securities, LLC or SunTrust Robinson Humphrey, Inc., or, if such firms are unwilling or unable to select the applicable Comparable Treasury Issue, an independent investment banking institution of national standing appointed by the Company.
Indenture Obligations means the obligations of the Company and any other obligor under the Indenture or under the Notes,
including any Guarantor, to pay principal of, premium, if any, and interest when due and payable, and all other amounts due or to become due under or in connection with this Indenture, the Notes and the performance of all other obligations to the
Trustee and the holders under this Indenture and the Notes, according to the respective terms thereof.
Indirect Participant
means a Person who holds a beneficial interest in a Global Note through a Participant.
Interest Payment Date has the meaning
set forth in Section 2.03(c).
Interest Rate Agreement means, in respect of a Person, any interest rate swap agreement,
interest rate cap agreement or other financial agreement or arrangement designed to protect such Person against fluctuations in interest rates.
Interest Rate Rating Agency and Interest Rate Rating Agencies have the meanings set forth in Section 2.03(c).
Investment Grade means a rating of Baa3 or better by Moodys (or its equivalent under any successor rating categories of
Moodys) and a rating of BBB- or better by S&P (or its equivalent under any successor rating categories of S&P) or the equivalent Investment Grade credit rating from any additional Rating Agency or Rating Agencies selected by the
Company.
Issue Date means September 21, 2015.
Lien means any mortgage or deed of trust, charge, pledge, lien (statutory or otherwise), privilege, security interest, assignment,
deposit, arrangement, easement, hypothecation, claim, preference, priority or other encumbrance upon or with respect to any property of any kind (including any conditional sale, capital lease or other title retention agreement, any leases in the
nature thereof, and any agreement to give any security interest), real or personal, movable or immovable, now owned or hereafter acquired. A Person will be deemed to own subject to a Lien any property which it has acquired or holds subject to the
interest of a vendor or lessor under any conditional sale agreement, Capital Lease Obligation or other title retention agreement.
6
Manufacturer means a vehicle manufacturer which is a party to a dealership agreement
with the Company or any Subsidiary of the Company.
Manufacturers Letter Agreements means each of the following:
(i) that certain letter dated January 30, 2006 to Mr. Kevin Flynn of Toyota Motor Sales USA, which was confirmed and agreed by Ms. Nancy Davies on behalf of Toyota Motor Sales, U.S.A., Inc., (ii) that certain letter dated
January 30, 2006 to Ms. Olga Reisler of Nissan North America, Inc., which was confirmed and agreed by Ms. Reisler on behalf of Nissan North America, Inc., (iii) that certain letter dated January 30, 2006 to Mr. Alex
Larkin of Kia Motors America, Inc., which was confirmed and agreed by Mr. Larkin on behalf of Kia Motors America, Inc., (iv) that certain letter dated January 30, 2006 to Ms. Jennifer Moneagle of Ford Motor Company, which was
confirmed and agreed by R. Erik Peterson on behalf of Ford Motor Company and (v) that certain letter dated February 23, 2006 to Ms. Donna Parlapiano, Vice President, Regional Operations & Industry Relations, of the Company,
from BMW of North America, LLC.
Maturity means, when used with respect to the Notes, the date on which the principal of the
Notes becomes due and payable as therein provided or as provided in the Indenture, whether at Stated Maturity or the Redemption Date and whether by declaration of acceleration, Change of Control Offer in respect of a Change of Control Repurchase
Event, call for redemption or otherwise.
Maturity Date has the meaning set forth in Section 2.03(b) hereof.
Moodys means Moodys Investors Service Inc., a subsidiary of Moodys Corporation, and its successors.
Mortgage Facilities means one or more debt facilities in each case with banks, manufacturers and/or other entities providing for
borrowings secured primarily by real property in each case as amended, restated, modified, renewed, refunded, replaced or refinanced in whole or in part from time to time; provided, that the value of the security securing such debt facilities
shall not, at the time such debt facilities are entered into, exceed 100% of the aggregate principal amount of the Indebtedness in respect of such debt facilities.
Notes has the meaning given to such term in the recitals hereof.
Participant means, with respect to the Depositary, a Person who has an account with the Depositary.
Person means any individual, corporation, limited liability company, partnership, joint venture, association, joint-stock company,
trust, unincorporated organization or government or any agency or political subdivision thereof.
Preferred Stock means, with
respect to any Person, any Capital Stock of any class or classes (however designated) which is preferred as to the payment of dividends or distributions, or as to the distribution of assets upon any voluntary or involuntary liquidation or
dissolution of such Person, over the Capital Stock of any other class in such Person.
Principal Property means any building,
structure or other facility located within the United States (other than its territories and possessions) and owned by the Company or any Domestic Subsidiary, the book value of which is not less than 0.5% of the Companys Consolidated Net
Tangible Assets. For purposes of this definition, book value will be measured at the time the relevant Lien is being created or, in the case of any Lien incurred pursuant to Section 5.01(c), at the time the relevant secured Indebtedness is
deemed to be Incurred. The term Principal Property does not include any building, structure or other facility that the Board of Directors declares by resolution not to be of material importance to the total business conducted by the
Company and its Domestic Subsidiaries taken as a whole.
7
Prospectus Supplement means the prospectus supplement of the Company dated
September 16, 2015, relating to the Notes.
Rating Agency means (1) each of Moodys and S&P; and
(2) if either of Moodys or S&P ceases to rate the Notes or fails to make a rating of the Notes publicly available for reasons outside of the control of the Company, a nationally recognized statistical rating organization
within the meaning of Section 3(a)(62) of the Exchange Act, selected by the Company as a replacement agency for Moodys or S&P, or both of them, as the case may be.
Rating Date means the date that is 60 days prior to the earlier of (i) a Change of Control or (ii) public notice of the
occurrence of a Change of Control or of the intention by the Company to affect a Change of Control.
Ratings Event means the
occurrence of the events described in (a) or (b) of this definition on, or within 60 days after the earlier of, (i) the occurrence of a Change of Control or (ii) public notice of the occurrence of a Change of Control or the
intention by the Company to effect a Change of Control (which period shall be extended so long as the rating of the Notes is under publicly announced consideration for a possible downgrade by any of the Rating Agencies): (a) if the Notes are
rated by one or both Rating Agencies on the Rating Date as Investment Grade, the rating of the Notes shall be reduced so that the Notes are rated below Investment Grade by both Rating Agencies or (b) if the Notes are rated below Investment
Grade by both Rating Agencies on the Rating Date, the rating of the Notes shall remain below Investment Grade by both Rating Agencies.
Redemption Date means the Business Day on which Notes are redeemed by the Company pursuant to Section 3.01 hereof.
Reference Treasury Dealer means J.P. Morgan Securities LLC, Merrill Lynch, Pierce, Fenner & Smith Incorporated, a Primary
Treasury Dealer (as defined herein) selected by Wells Fargo Securities, LLC or a Primary Treasury Dealer selected by SunTrust Robinson Humphrey, Inc., and their respective successors, and at least one other primary U.S. government securities dealers
in New York City (each, a Primary Treasury Dealer) selected by the Independent Investment Banker; provided, however, that if any of the foregoing shall cease to be a Primary Treasury Dealer, the Company shall substitute therefor
another Primary Treasury Dealer.
Reference Treasury Dealer Quotation means, with respect to each Reference Treasury Dealer
and any Redemption Date for the Notes, an average, as determined by the Company, of the bid and asked prices for the Comparable Treasury Issue for the Notes, expressed in each case as a percentage of its principal amount, quoted in writing to the
Company by such Reference Treasury Dealer at 3:30 p.m., New York City time, on the third Business Day preceding such Redemption Date.
Regular Record Date has the meaning set forth in Section 2.03(c).
Registered Securities means any Securities which are registered in the Register.
S&P means Standard & Poors, a division of The McGraw-Hill Companies, Inc., and its successors.
8
Sale and Leaseback Transaction means an arrangement by the Company or any of its
Domestic Subsidiaries with any other Person pursuant to which the Company or any of its Domestic Subsidiaries leases any Principal Property that has been or is to be sold or transferred by the Company or any Domestic Subsidiary to such other Person
with the intention of taking back a lease, whether now owned or hereafter acquired.
Securities has the meaning given to such
term in the recitals hereof.
Significant Subsidiary means any Subsidiary which is a significant subsidiary within
the meaning of Rule 405 under the Securities Act.
Stated Maturity means, when used with respect to any Indebtedness or any
installment of interest thereon, the dates specified in such Indebtedness as the fixed date on which the principal of such Indebtedness or such installment of interest, as the case may be, is due and payable.
Subsidiary means, with respect to any Person (the parent) at any date, any corporation, limited liability company,
partnership, association or other entity of which a majority of the shares or securities or other interests having ordinary voting power for the election of directors or another governing body (other than securities or interests having such power
only by reason of the happening of a contingency) are at the time beneficially owned directly or indirectly through one or more intermediaries, or both, by the parent.
Subsidiary Guarantee means the guarantee by any Guarantor of the Companys Indenture Obligations.
Substitute Rating Agency means a nationally recognized statistical rating organization within the meaning of
Section 3(a)(62) of the Exchange Act selected by the Company (pursuant to a resolution of the Companys Board of Directors) as a replacement agency for Moodys or S&P, or both of them, as the case may be.
Treasury Yield means, with respect to any Redemption Date applicable to the Notes, the rate per annum equal to the semi-annual
equivalent yield to maturity, computed as of the third Business Day immediately preceding the Redemption Date, of the Comparable Treasury Issue, assuming a price for the Comparable Treasury Issue, expressed as a percentage of its principal amount,
equal to the applicable Comparable Treasury Price for such Redemption Date.
Trustee has the meaning given to such term in the
preamble hereof.
Vehicle Inventory Indebtedness means Indebtedness (including pursuant to a commercial paper program)
Incurred by the Company, any Subsidiary of the Company or any Eligible Special Purpose Entity to purchase, lease, finance or refinance or guaranty the purchasing, leasing, financing or refinancing of Vehicles in the ordinary course of business of
the Company and its Subsidiaries or related receivables, which Indebtedness (x) is secured by the Vehicles or related receivables so financed, to the extent, at any date of determination thereof, the amount of such Indebtedness does not exceed
the depreciated book value of such Vehicles or the book value of such related receivables determined in accordance with GAAP applied on a consistent basis or (y) is unsecured and provides for a borrowing base which may not exceed 85% of the
value of such Vehicles.
Vehicle Receivables Indebtedness means Indebtedness (including pursuant to a commercial paper
program) Incurred by any Eligible Special Purpose Entity to finance, refinance or guaranty the financing or refinancing of consumer receivables, leases, loans or retail
9
installment contracts incurred in the sale, transfer or lease of Vehicles; provided (x) no assets other than the Vehicles, consumer receivables, leases, loans, retail installment
contracts or related proceeds (including, without limitation, proceeds from insurance, Vehicles and other obligations under such receivables, leases, loans or retail installment contracts) to be financed or refinanced secure such Indebtedness; and
(y) neither the Company nor any of its other Subsidiaries shall incur any liability with respect to such Indebtedness other than liability arising by reason of (1) a breach of a representation or warranty or customary indemnities, in each
case contained in any instrument relating to such Indebtedness or (2) customary interests retained by the Company and/or its Domestic Subsidiaries in such Indebtedness.
Vehicles means all now existing or hereafter acquired new and used automobiles, sport utility vehicles, trucks and vans of all
types and descriptions, whether held for sale, lease, rental or operational purposes, which relate to the Companys or any of its Subsidiarys Automobile Retailing Activities.
Voting Stock of any specified person (as that term is used in Section 13(d)(3) of the Exchange Act) as of any
date means the Capital Stock of such person that is at the time entitled to vote generally in the election of the board of directors of such person.
ARTICLE II
CREATION,
FORMS, TERMS AND CONDITIONS OF THE SECURITIES
SECTION 2.01 Creation of the Notes. The Notes are hereby authorized and are
designated the 3.350% Senior Notes due 2021, unlimited in aggregate principal amount. In accordance with Sections 2.01 and 3.01 of the Base Indenture, the Company hereby creates the Notes as a separate series of its Securities issued pursuant to the
Indenture. The Notes shall be issued on the date hereof initially in an aggregate principal amount of $300,000,000, which amount shall be set forth in the written order of the Company for the authentication and delivery of the Notes pursuant to
Section 3.03 of the Base Indenture. In addition, the Company may issue, from time to time in accordance with the provisions of the Indenture, additional Notes having the same terms and conditions as the Notes issued on the date hereof in all
respects (except for the payment of interest accruing prior to the issue date of such additional Notes), so that such additional Notes shall be consolidated and form a single series with the Notes issued on the Issue Date and shall be governed by
the terms of the Indenture; provided, however, that if any additional Notes are not fungible for U.S. federal income tax purposes with the Notes issued under the terms of this Indenture, such additional Notes shall be issued under a
separate CUSIP number.
SECTION 2.02 Form of the Notes. The Notes shall each be issued in the form of a Global Note, duly
executed by the Company and authenticated by the Trustee, which shall be deposited with the Trustee as custodian for DTC and registered in the name of Cede & Co., as the nominee of DTC. The Notes shall be substantially in the
form of Exhibit A attached hereto (including the Global Note Legend thereon). Notes issued in definitive certificated form in accordance with the terms of the Base Indenture and this Supplemental Indenture, if any, shall be substantially in
the form of Exhibit A attached hereto (but without the Global Note Legend thereon). So long as DTC, or its nominee, is the registered owner of a Global Note, DTC or its nominee, as the case may be, shall be considered the sole owner or Holder
of the Notes represented by such Global Note for all purposes under the Indenture. Ownership of beneficial interests in such Global Note shall be shown on, and transfers thereof shall be effected only through, records maintained by DTC (with respect
to beneficial interests of participants) or by participants or Persons that hold interests through participants (with respect to beneficial interests
10
of beneficial owners). In addition, the following provisions of clauses (1), (2), and (3) below shall apply only to Global Notes:
(1) Notwithstanding any other provision in the Indenture, no Global Note may be exchanged in whole or in part for Securities registered, and
no transfer of a Global Note in whole or in part may be registered, in the name of any Person other than the Depositary for such Global Note or a nominee thereof unless (A) such Depositary has notified the Company that it is unwilling or unable
to continue as Depositary for such Global Note or has ceased to be a clearing agency registered under the Exchange Act, and the Company has not appointed a successor Depositary within 90 days of receipt of such notice (B) there shall have
occurred and be continuing an Event of Default with respect to the Notes or (C) the Company (subject to the procedures of the Depositary) so directs the Trustee by Company Order. Beneficial interests in Global Notes may be exchanged for
Definitive Notes of the same series upon request upon prior written notice given to the Trustee by us or behalf of the Depositary in accordance with customary procedures.
(2) Subject to clause (1) above, any exchange of a Global Note for other Definitive Notes may be made in whole or in part, and all
Definitive Notes issued in exchange for a Global Note or any portion thereof shall be registered in such names as the Depositary for such Global Note shall direct.
(3) Every Definitive Note authenticated and delivered upon registration of transfer of, or in exchange for or in lieu of, a Global Note or any
portion thereof, shall be authenticated and delivered in the form of, and shall be, a Global Note, unless such note is registered in the name of a Person other than the Depositary for such Global Note or a nominee thereof.
SECTION 2.03 Terms and Conditions of the Notes. The Notes shall be governed by all the terms and conditions of the Base Indenture,
as supplemented by this Supplemental Indenture. In particular, the following provisions shall be terms of the Notes:
(a) Title and
Aggregate Principal Amount. The title of the Notes shall be as specified in the Recitals of the Company; and the aggregate principal amount of the Notes shall be as specified in Section 2.01 of this Article II and this Section 2.03,
except as permitted by Sections 3.04, 3.06 or 3.07 of the Base Indenture.
(b) Stated Maturity. The Notes shall mature, and the
unpaid principal thereon shall be payable, on January 15, 2021 (the Maturity Date), subject to the provisions of the Base Indenture and Articles III and IV below.
(c) Interest. The rate per annum at which interest shall be payable on the Notes shall be 3.350%, subject to adjustment under this
Section 2.03. Interest on the Notes shall be payable semi-annually in arrears on each January 15 and July 15, commencing on January 15, 2016 (each, an Interest Payment Date), to the Persons in whose names the
applicable Notes are registered in the Register applicable to the Notes at the close of business on the immediately preceding January 1 or July 1, respectively, prior to the applicable Interest Payment Date regardless of whether such day
is a Business Day (each, a Regular Record Date). Interest on the Notes shall be computed on the basis of a 360-day year consisting of twelve 30-day months. Interest on the Notes issued on the Issue Date shall accrue from and including
September 21, 2015 or the most recent Interest Payment Date on which interest was paid. If an Interest Payment Date or the Maturity Date falls on a day that is not a Business Day, the payment shall be made on the next Business Day as if it were
made on the date the payment was due, and no interest shall accrue on the amount so payable for the period from and after that Interest Payment Date or the
11
Maturity Date, as the case may be, to the date the payment is made. Interest payments shall include accrued interest from and including the Issue Date or from and including the last date in
respect to which interest has been paid, as the case may be, to, but excluding, the Interest Payment Date or the Maturity Date, as the case may be.
(i) The interest rate payable on the Notes will be subject to adjustments from time to time if either Moodys or S&P, or in either
case, a Substitute Rating Agency thereof, downgrades (or subsequently upgrades) the rating assigned to such Notes, in the manner described below. Each of Moodys, S&P and any Substitute Rating Agency is an Interest Rate Rating
Agency, and together they are Interest Rate Rating Agencies.
If the rating of the Notes from one or both of
Moodys or S&P (or, if applicable, any Substitute Rating Agency) is decreased to a rating set forth in either of the immediately following tables, the interest rate on the Notes will increase from the interest rate payable on the Notes on
the Issue Date by an amount equal to the sum of the percentages per annum set forth in the following tables opposite those ratings:
|
|
|
|
|
Moodys Rating* |
|
Percentage Points |
|
Ba1 |
|
|
0.25 |
|
Ba2 |
|
|
0.50 |
|
Ba3 |
|
|
0.75 |
|
B1 or below |
|
|
1.00 |
|
* |
Including the equivalent ratings of any Substitute Rating Agency. |
|
|
|
|
|
S&P Rating* |
|
Percentage Points |
|
BB+ |
|
|
0.25 |
|
BB |
|
|
0.50 |
|
BB- |
|
|
0.75 |
|
B+ or below |
|
|
1.00 |
|
* |
Including the equivalent ratings of any Substitute Rating Agency. |
(ii) For purposes of
making adjustments to the interest rate on the Notes, the following rules of interpretation will apply:
1) if at any
time less than two Interest Rate Rating Agencies provide a rating on the Notes for reasons not within the Companys control (i) the Company will use commercially reasonable efforts to obtain a rating on the Notes from a Substitute Rating
Agency for purposes of determining any increase or decrease in the interest rate on the Notes pursuant to the tables above, (ii) such Substitute Rating Agency will be substituted for the last Interest Rate Rating Agency to provide a rating on
the Notes but which has since ceased to provide such rating, (iii) the relative ratings scale used by such Substitute Rating Agency to assign ratings to senior unsecured debt will be determined in good faith by an independent investment banking
institution of national standing appointed by us and, for purposes of determining the applicable ratings included in the applicable table above with respect to such Substitute Rating Agency, such ratings shall be deemed to be the equivalent ratings
used by Moodys or S&P, as applicable, in such table, and (iv) the interest rate on the Notes will increase or decrease, as the case may be, such that the interest rate equals the interest rate with respect to the Notes set forth on
the cover page of this prospectus supplement plus the appropriate percentage, if any, set forth opposite the rating from such Substitute Rating Agency in the applicable table above (taking into account the provisions of clause (iii) above)
(plus any applicable percentage resulting from a decreased rating by the other Interest Rate Rating Agency);
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2) for so long as only one Interest Rate Rating Agency provides a rating on the
Notes, any increase or decrease in the interest rate on the Notes of any series necessitated by a reduction or increase in the rating by that Interest Rate Rating Agency shall be twice the applicable percentage set forth in the applicable table
above;
3) if both Interest Rate Rating Agencies cease to provide a rating of the Notes for any reason, and no Substitute
Rating Agency has provided a rating on the Notes, the interest rate on the Notes will increase to, or remain at, as the case may be, 2.00% per annum above the interest rate on the Notes prior to any such adjustment;
4) if Moodys or S&P ceases to rate the Notes or make a rating of the Notes publicly available for reasons within our
control, the Company will not be entitled to obtain a rating from a Substitute Rating Agency and the increase or decrease in the interest rate on the Notes shall be determined in the manner described above as if either only one or no Interest Rate
Rating Agency provides a rating on the Notes, as the case may be;
5) each interest rate adjustment required by any
decrease or increase in a rating as set forth above, whether occasioned by the action of Moodys or S&P (or, in either case, any Substitute Rating Agency), shall be made independently of (and in addition to) any and all other interest rate
adjustments occasioned by the action of the other Interest Rate Rating Agency;
6) in no event will (i) the interest
rate on the Notes be reduced to below the interest rate on the Notes prior to any adjustment or (ii) the total increase in the interest rate on the Notes exceed 2.00% above the interest rate payable on the Notes on the date of their initial
issuance; and
7) subject to clauses (3) and (4) above, no adjustment in the interest rate on the Notes shall be
made solely as a result of an Interest Rate Rating Agency ceasing to provide a rating of the Notes.
(iii) If at any time the interest
rate of the Notes has been adjusted upward and either of the Interest Rate Rating Agencies subsequently increases its rating of the Notes, the interest rate on the Notes will again be adjusted (and decreased, if appropriate) such that the interest
rate on the Notes equals the interest rate on the Notes prior to any such adjustment plus (if applicable) an amount equal to the sum of the percentages per annum set forth opposite the ratings in the tables above with respect to the ratings assigned
to the Notes (or deemed assigned) at that time, all calculated in accordance with the rules of interpretation set forth above. If Moodys or any Substitute Rating Agency subsequently increases its rating on the Notes to Baa3 (or its
equivalent if with respect to any Substitute Rating Agency) or higher and S&P or any Substitute Rating Agency subsequently increases its rating on the Notes to BBB- (or its equivalent if with respect to any Substitute Rating Agency)
or higher, the interest rate on such Notes will be decreased to the interest rate on the Notes prior to any adjustments made pursuant to this Section 2.03(c);
(iv) Any interest rate increase or decrease described above will take effect from the first day of the interest period following the period
in which a rating change occurs requiring an adjustment in the interest rate. If either Interest Rate Rating Agency changes its rating of the Notes more than once during any particular interest period, the last such change by such Interest Rate
Rating Agency to occur will control in the event of a conflict for purposes of any increase or decrease in the interest rate with respect to the Notes.
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(v) The interest rate of Notes will permanently cease to be subject to any adjustment described
above (notwithstanding any subsequent decrease in the ratings by either Interest Rate Rating Agency) if such Notes become rated Baa1 or higher by Moodys (or its equivalent if with respect to any Substitute Rating Agency) and
BBB+ or higher by S&P (or its equivalent if with respect to any Substitute Rating Agency), in each case with a stable or positive outlook.
(vi) The Trustee will have no responsibility whatsoever to monitor whether the interest rate on the Notes is at any time subject to any
adjustment under this Section 2.03. The Company will promptly notify the Trustee in writing if at any time the interest rate payable on the Notes becomes subject to such adjustment.
(d) Registration and Form. The Notes shall be issuable as Registered Securities as provided in Section 2.02 of this Article II.
The Notes shall be issued and may be transferred only in minimum denominations of $2,000 and integral multiples of $1,000 above that amount. All payments of principal, the price payable on redemption, the repurchase price payable pursuant to any
Change of Control Offer and interest in respect of the Notes shall be made by the Company in immediately available funds.
(e) Further
Issues. Notwithstanding anything to the contrary contained herein or in the Base Indenture, the Company may, from time to time, without the consent of or notice to the Holders, create and issue further securities having the same ranking and
terms and conditions as the Notes in all respects, except for issue date, the public offering price and, in some cases, the first Interest Payment Date. Additional Notes issued in this manner shall be consolidated with and shall form a single series
with the previously Outstanding Notes. Notice of any such issuance shall be given to the Trustee and a new supplemental indenture shall be executed in connection with the issuance of such additional Notes.
(f) Merger, Consolidation or Sale of Assets. The provisions regarding merger, consolidation or sale of assets contained in
Section 6.04 of the Base Indenture are deleted and replaced in their entirety by the provisions of Section 5.04 of this Supplemental Indenture with respect to the Notes.
(g) Compliance Certificate. The provisions for furnishing the Trustee certificates regarding compliance contained in Sections 6.05 and
6.07 of the Base Indenture are deleted and replaced in their entirety by the provisions of Section 5.05 of this Supplemental Indenture with respect to the Notes.
(h) Defeasance and Covenant Defeasance; Discharge. The provisions regarding Defeasance, Covenant Defeasance and Discharge contained in
Article XII of the Base Indenture are deleted and replaced in their entirety by the provisions of Article VII of this Supplemental Indenture with respect to the Notes.
(i) Amendment, Supplement and Waiver. The provisions regarding amendment, supplement and waiver contained in Article XIV of the Base
Indenture are deleted and replaced in their entirety by the provisions of Article VIII of this Supplemental Indenture with respect to the Notes.
(j) Guarantee. The full and punctual payment by the Company of the principal of, premium, if any, and interest on the Notes is fully
and unconditionally guaranteed on a joint and several senior unsecured basis by each of the Guarantors as provided in Article IX of this Supplemental Indenture.
(k) Other Terms and Conditions. The Notes shall have such other terms and conditions as provided in the form thereof attached as
Exhibit A.
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SECTION 2.04 Ranking. The Notes shall be general unsecured obligations of the
Company. The Notes shall rank pari passu in right of payment with all unsecured and unsubordinated indebtedness, including, without limitation, any unsecured senior indebtedness, of the Company and senior in right of payment to all
subordinated indebtedness of the Company.
SECTION 2.05 Sinking Fund. The Notes shall not be entitled to any sinking fund.
SECTION 2.06 Place of Payment. The Place of Payment in respect of the Notes will be at the office or agency of the Company
in The City of New York, State of New York or at the office or agency of the Paying Agent in The City of New York, State of New York.
SECTION 2.07 Transfer and Exchange.
(a) The transfer and exchange of beneficial interests in the Global Notes shall be effected through the Depositary, in accordance with the
provisions of the Base Indenture, this Supplemental Indenture and the then applicable procedures of the Depositary (the Applicable Procedures). In connection with all transfers and exchanges of beneficial interests, the transferor of
such beneficial interest must deliver to the Trustee either (A)(1) a written order from a Participant or an Indirect Participant given to the Depositary in accordance with the Applicable Procedures directing the Depositary to credit or cause to be
credited a beneficial interest in another Global Note in an amount equal to the beneficial interest to be transferred or exchanged and (2) instructions given in accordance with the Applicable Procedures containing information regarding the
Participant account to be credited with such increase or, if Definitive Notes are at such time permitted to be issued pursuant to this Supplemental Indenture and the Base Indenture, (B)(1) a written order from a Participant or an Indirect
Participant given to the Depositary in accordance with the Applicable Procedures directing the Depositary to cause to be issued a Definitive Note in an amount equal to the beneficial interest to be transferred or exchanged and (2) instructions
given by the Depositary to the Registrar containing information regarding the Person in whose name such Definitive Note shall be registered to effect the transfer or exchange referred to in (1) above. Upon satisfaction of all of the
requirements for transfer or exchange of beneficial interests in Global Notes contained in the Base Indenture, this Supplemental Indenture and the Notes, the Registrar shall adjust the principal amount of the relevant Global Notes pursuant to
Section 2.08 hereof.
(b) Upon written request by a Holder of Definitive Notes and such Holders compliance
with the provisions of this Section 2.07(b), the Registrar shall register the transfer or exchange of Definitive Notes. Prior to such registration of transfer or exchange, the requesting Holder shall present or surrender to the Trustee the
Definitive Notes duly endorsed or accompanied by a written instruction of transfer in form satisfactory to the Registrar duly executed by such Holder or by its attorney, duly authorized in writing. The Trustee shall cancel any such Definitive Notes
so surrendered, and the Company shall execute and, upon receipt of a Company Order pursuant to Section 3.03 of the Base Indenture, the Trustee shall authenticate and deliver to the Person designated in the instructions a new Definitive Note in
the appropriate principal amount. Any Definitive Note issued pursuant to this Section 2.07(b) shall be registered in such name or names and in such authorized denomination or denominations as the Holder of such beneficial interest shall
instruct the Registrar through instructions from the Depositary and the Participant or Indirect Participant. The Trustee shall deliver such Definitive Notes to the Persons in whose names such Definitive Notes are so registered. In addition, the
requesting Holder shall provide any additional certifications, documents and information, as applicable, required pursuant to Section 3.06 of the Base Indenture.
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SECTION 2.08 Cancellation and/or Adjustment of Global Notes. At such time as all
beneficial interests in a particular Global Note have been exchanged for Definitive Notes or a particular Global Note has been redeemed, repurchased or cancelled in whole and not in part, each such Global Note shall be returned to or retained and
cancelled by the Trustee in accordance with Section 3.09 of the Base Indenture. At any time prior to such cancellation, if any beneficial interest in a Global Note is exchanged for or transferred to a Person who will take delivery thereof in
the form of a beneficial interest in another Global Note or for Definitive Notes, the principal amount of Securities represented by such Global Note shall be reduced accordingly and an endorsement shall be made on such Global Note by the Trustee or
by the Depositary at the direction of the Trustee to reflect such reduction; and if the beneficial interest is being exchanged for or transferred to a Person who will take delivery thereof in the form of a beneficial interest in another Global Note,
such other Global Note shall be increased accordingly and an endorsement shall be made on such Global Note by the Registrar or by the Depositary at the direction of the Registrar to reflect such increase.
ARTICLE III
REDEMPTION
OF THE NOTES
SECTION 3.01 Optional Redemption by Company.
(a) The Company may redeem the Notes at any time in whole, or from time to time in part, at a redemption price equal to the greater of:
(i) 100% of the principal amount of the Notes to be redeemed; and
(ii) the sum of the present values of the remaining scheduled payments of principal and interest on the Notes to be redeemed, exclusive of
interest accrued to the date of redemption, discounted to the date of redemption on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) at the applicable Treasury Yield, plus 30 basis points plus, accrued and unpaid
interest thereon to, but not including, the Redemption Date; provided, however, that at any time on or after December 15, 2020, the Company may redeem the Notes, at its option, in whole, or from time to time in part, at a redemption
price equal to 100% of the principal amount of the Notes to be redeemed, plus accrued and unpaid interest thereon to, but not including, the Redemption Date.
(b) Notwithstanding subsection (a) above, installments of interest on the Notes that are due and payable on any Interest Payment Date
falling on or prior to a Redemption Date shall be payable on such Interest Payment Date to the registered Holders as of the close of business on the relevant Regular Record Date according to the terms of the Notes and the Indenture. Unless the
Company defaults in payment of the amount payable on redemption, on and after the Redemption Date, interest shall cease to accrue on the Notes or portions thereof that are called for redemption.
(c) The Notes called for redemption become due on the date fixed for redemption. Notices of redemption shall be mailed by first-class mail at
least thirty (30) but not more than sixty (60) days before such Redemption Date to each Holder of the Notes to be redeemed at its registered address (with a copy to the Trustee). At the Companys request, the Trustee shall give the
notice of redemption in the Companys name and at its expense; provided, however, that the Company shall have delivered to the Trustee, at least 45 days prior to the Redemption Date, an Officers Certificate requesting that
the Trustee give such notice and setting forth the information to be stated in such notice. The Company shall calculate the amount payable on redemption and shall deliver an Officers Certificate to the Trustee setting forth the amount payable
on redemption no later than two (2) Business Days prior to the Redemption Date.
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(d) If less than all the Notes are to be redeemed at any time, the Notes to be redeemed shall be
selected by lot by DTC, in the case of Global Notes, or by the Trustee by a method the Trustee deems to be fair and appropriate, in the case of Notes that are not represented by a Global Note. No Notes of $2,000 in principal amount or less shall be
redeemed in part. If any Note is to be redeemed in part only, the notice of redemption relating to such Note will state the portion of the principal amount to be redeemed. A new Note in principal amount equal to the unredeemed portion will be issued
upon cancellation of the original Note.
ARTICLE IV
CHANGE OF CONTROL
SECTION 4.01 Repurchase at the Option of Holders Upon Change of Control Repurchase Event.
(a) If a Change of Control Repurchase Event occurs, unless the Company has exercised its right to redeem the Notes pursuant to
Section 3.01 of this Supplemental Indenture, the Company shall be required to make an offer to each Holder of the Notes to repurchase all or any part (in minimum denominations of $2,000 and integral multiples of $1,000 above that amount) of
that Holders Notes at a repurchase price in cash equal to 101% of the aggregate principal amount of the Notes repurchased plus any accrued and unpaid interest on the Notes repurchased to, but not including, the date of
repurchase; provided that after giving effect to the purchase, any Notes that remain outstanding shall have a denomination of $2,000 and integral multiples of $1,000 above that amount.
(b) Within thirty (30) days following any Change of Control Repurchase Event or, at the option of the Company, prior to any Change of
Control, but after the public announcement of the transaction that constitutes or may constitute the Change of Control, the Company shall mail a notice (a Change of Control Offer) to each Holder, with a copy to the Trustee, describing
the transaction or transactions that constitute or may constitute the Change of Control Repurchase Event and offering to repurchase the Notes on the payment date specified in the notice, which date shall be no earlier than thirty (30) days and
no later than sixty (60) days from the date such notice is mailed. The notice shall, if mailed prior to the date of consummation of the Change of Control, state that the Change of Control Offer is conditioned on a Change of Control Repurchase
Event occurring on or prior to the payment date specified in the notice.
(c) The Company shall comply with the requirements of Rule 14e-1
under the Exchange Act, and any other securities laws and regulations thereunder, to the extent those laws and regulations are applicable in connection with the repurchase of the Notes as a result of a Change of Control Repurchase Event. To the
extent that the provisions of any securities laws or regulations conflict with the Change of Control Repurchase Event provisions of the Notes, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to
have breached its obligations under the Change of Control Repurchase Event provisions of the Notes or the Indenture by virtue of such conflict.
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(d) On the repurchase date following a Change of Control Repurchase Event, the Company shall, to
the extent lawful:
(i) accept for payment all the Notes or portions of the Notes (in minimum denominations of $2,000 and integral
multiples of $1,000 above that amount) properly tendered pursuant to the applicable Change of Control Offer;
(ii) deposit with the
Paying Agent an amount equal to the aggregate purchase price in respect of all the Notes or portions of the Notes properly tendered pursuant to the applicable Change of Control Offer; and
(iii) deliver or cause to be delivered to the Trustee the Notes properly accepted, together with an Officers Certificate stating the
aggregate principal amount of Notes being purchased by the Company.
(e) The Trustee shall promptly mail, or cause the Paying Agent to
promptly mail, to each Holder of Notes properly tendered, the purchase price for the Notes, and the Trustee shall promptly, upon the receipt of a Company Order, authenticate and mail (or cause to be transferred by book-entry) to each Holder a new
Note equal in principal amount to any unpurchased portion of any Notes surrendered; provided, that each new Note shall be in a minimum principal amount of $2,000 or an integral multiple of $1,000 above that amount.
(f) The Company shall not be required to make an offer to repurchase the Notes upon a Change of Control Repurchase Event if a third party
makes such an offer in the manner, at the times and otherwise in compliance with the requirements for an offer made by the Company and such third party purchases all Notes properly tendered and not withdrawn under its offer.
(g) If Holders of not less than 95% in aggregate principal amount of the Outstanding Notes validly tender and do not withdraw such Notes in a
Change of Control Offer and the Company, or any third party making a Change of Control Offer in lieu of the Company, as described in Section 4.01(f) of this Supplemental Indenture, purchases all of the Notes validly tendered and not withdrawn
by such Holders, the Company will have the right, upon not less than thirty (30) nor more than sixty (60) days prior notice, given not more than thirty (30) days following such purchase pursuant to the Change of Control Offer
described in this Section 4.01, to redeem all Notes that remain Outstanding following such purchase at a redemption price in cash equal to 101% of the principal amount thereof, plus accrued and unpaid interest, if any, to the date of
redemption.
ARTICLE V
COVENANTS
SECTION 5.01 Limitation on Liens.
(a) The Company shall not, and shall not permit any of its Domestic Subsidiaries to, create, incur, assume or permit to exist any Lien on
(a) any Principal Property or (b) the Capital Stock of any Subsidiary of the Company, in each case to secure Indebtedness of the Company, any Subsidiary of the Company or any other Person, unless prior to or at the same time, the Notes
(together with, at the option of the Company, any other Indebtedness of the Company or any Subsidiary ranking equally in right of payment with the Notes) are equally and ratably secured with or, at the option of the Company, prior to, such
Indebtedness. Any Lien created for the benefit of the Holders of the Notes pursuant to this Section 5.01(a) shall provide by its terms that such Lien shall be automatically and unconditionally released and discharged upon the release and
discharge of such Lien that gave rise to the obligation to secure the Notes under this Section 5.01(a).
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(b) The restrictions set forth in Section 5.01(a) shall not apply, with respect to any
Person, to any of the following:
(i) any Lien existing on the Issue Date;
(ii) any Lien arising by reason of:
1) any judgment, decree or order of any court, so long as such Lien is adequately bonded or with respect to which adequate
reserves or other appropriate provisions are being maintained in accordance with GAAP and any appropriate legal proceedings which may have been duly initiated for the review of such judgment, decree or order shall not have been finally terminated or
the period within which such proceedings may be initiated shall not have expired;
2) taxes, governmental assessments or
similar governmental charges or levies not yet delinquent or which are being contested in good faith;
3) security for
payment of workers compensation, unemployment insurance and other governmental insurance or benefits and/or other insurance arrangements (including, without limitation, pledges or deposits securing liability under self-insurance general
liability insurance programs);
4) good faith deposits in connection with bids, tenders, statutory obligations, leases and
contracts (other than contracts for the payment of money);
5) zoning and other restrictions, charges or encumbrances
(whether or not recorded), easements (including, without limitation, reciprocal easement agreements and utility agreements) licenses, reservations, title defects, rights of others for rights of way, utilities, sewers, electric lines, telephone or
telegraph lines, and other similar purposes, provisions, covenants, consents, conditions, waivers, variations, encroachments, restrictions on the use of property or minor irregularities of title (and with respect to leasehold interests, mortgages,
obligations, liens and other encumbrances incurred, created assumed or permitted to exist and arising by, through or under a landlord or owner of the leased property, with or without consent of the lessee), none of which materially impairs the use
of any parcel of property material to the operation of the business of the Company or any of its Subsidiaries or the value of such property for the purpose of such business;
6) deposits to secure public, statutory or similar obligations, or in lieu of surety or appeal bonds or Liens incurred or
deposits made as a result of progress payments under government contracts;
7) Liens incurred or deposits made in
connection with letters of credit issued in the ordinary course of business; or
8) operation of law in favor of
mechanics, carriers, warehousemen, landlords, materialmen, laborers, employees, suppliers or other similar Persons, incurred in the ordinary course of business for sums which are not yet delinquent or are being contested in good faith by
negotiations or by appropriate proceedings which suspend the collection thereof;
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(iii) any Lien to secure the performance bids, trade contracts, leases (including, without
limitation, statutory and common law landlords liens), statutory obligations, surety and appeal bonds, letters of credit and other obligations of a like nature and incurred in the ordinary course of business of the Company or any of its
Subsidiaries;
(iv) Liens securing Indebtedness Incurred to finance the construction, purchase or lease of, or repairs, improvements or
additions to, property, plant or equipment of such Person; provided, however, that the Lien may not extend to any other property owned by such Person at the time the Lien is incurred (other than assets and property affixed or
appurtenant thereto), and the Indebtedness (other than any interest thereon) secured by the Lien may not be Incurred more than 180 days after the later of the acquisition, completion of construction, repair, improvement, addition or commencement of
full operation of the property subject to the Lien;
(v) Liens on property or shares of Capital Stock of another Person at the time such
other Person becomes a Subsidiary of such Person; provided, however, that the Liens may not extend to any other property owned by such Person (other than assets and property affixed or appurtenant thereto);
(vi) Liens on property at the time such Person or any of its Subsidiaries acquires the property, including any acquisition by means of a
merger or consolidation with or into such Person or a Subsidiary of such Person; provided, however, that the Liens may not extend to any other property owned by such Person (other than assets and property affixed or appurtenant
thereto);
(vii) Liens in favor of the Company or any of its Subsidiaries;
(viii) any Lien securing any Vehicle Inventory Indebtedness and/or Vehicle Receivables Indebtedness;
(ix) Liens securing Indebtedness under Mortgage Facilities in an aggregate principal amount not to exceed $500.0 million Incurred and
outstanding after the Issue Date;
(x) Liens securing Indebtedness under Debt Facilities in an aggregate principal amount not to exceed
$2,300.0 million at any one time outstanding;
(xi) Liens securing Indebtedness under Interest Rate Agreements, Currency
Agreements or Commodity Price Protection Agreements or otherwise Incurred to hedge interest rate risk or currency or commodity pricing risk;
(xii) Liens to secure any refinancing (or successive refinancings) as a whole, or in part, of any Indebtedness secured by any Lien referred
to in the foregoing clauses (i), (iv), (v), (vi) or (xi); provided, however, that: (a) such new Lien shall be limited to all or part of the same property and assets that secured or, under the written agreements pursuant to
which the original Lien arose, could secure the original Lien (plus improvements and accessions to, such property or proceeds or distributions thereof); and (b) the Indebtedness secured by such Lien at such time is not increased to any amount
greater than the sum of (x) the outstanding principal amount or, if greater, committed amount of the Indebtedness described in clauses (i), (iv), (v), (vi) or (xi) at the time the original Lien became a Lien permitted under the
Indenture and (y) an amount necessary to pay any fees and expenses, including premiums, related to such refinancing, refunding, extension, renewal or replacement; and
(xiii) Liens on assets subject to a Sale and Leaseback Transaction securing Attributable Debt permitted to be Incurred pursuant to
Section 5.02 of this Supplemental Indenture.
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(c) Notwithstanding the restrictions contained in subsections (a) and (b) of this
Section 5.01, the Company and its Subsidiaries shall be permitted to Incur Indebtedness secured by a Lien which would otherwise be subject to the restrictions contained in subsections (a) and (b) of this Section 5.01 without
equally and ratably securing the Notes, if any, provided that, after giving effect to such Indebtedness, the aggregate amount of all Indebtedness secured by Liens (not including Liens permitted under clauses (i) through (xiii) of
Section 5.01(b)), together with all Attributable Debt outstanding pursuant to Section 5.02(b), does not exceed 15% of the Consolidated Net Tangible Assets of the Company calculated as of the date of the creation or incurrence of the Lien.
The Company and its Subsidiaries also may, without equally and ratably securing the Notes, create or incur Liens that extend, renew, substitute or replace (including successive extensions, renewals, substitutions or replacements), in whole or in
part, any Lien permitted pursuant to the preceding sentence.
SECTION 5.02 Limitations on Sale and Leaseback Transactions.
(a) The Company shall not, and shall not permit any of its Domestic Subsidiaries to, directly or indirectly, enter into any Sale and
Leaseback Transaction, unless:
(i) such transaction with respect to a Principal Property if a binding commitment with respect thereto is
entered into within one year after the later of (x) the Issue Date or (y) the date such Principal Property was acquired;
(ii)
the Sale and Leaseback Transaction is solely with the Company or any of its Domestic Subsidiaries;
(iii) the lease is for a period not
in excess of 36 months, including renewals;
(iv) the Company would (at the time of entering into such arrangement) be entitled to Incur
Indebtedness secured by a Lien with respect to such Sale and Leaseback Transaction, without equally and ratably securing the Notes then Outstanding under the Indenture, pursuant to Section 5.01(c) of this Supplemental Indenture; or
(v) leases where the proceeds from the sale of the subject Principal Property are at least equal to the fair market value (as determined in
good faith by the Company) of the subject Principal Property and the Company applies an amount equal to the net proceeds from the sale of such Principal Property to the purchase of other property or assets used or useful in its business or to the
retirement of long-term Indebtedness within 365 days of the effective date of any such Sale and Leaseback Transaction; provided that, in lieu of applying such amount to the retirement of long-term Indebtedness, the Company may deliver Notes
to the Trustee for cancellation.
(b) Notwithstanding the restrictions set forth in subsection (a) of this Section 5.02, the
Company and its Subsidiaries may enter into any Sale and Leaseback Transaction which would otherwise be subject to such restrictions, if after giving effect thereto the aggregate amount of all Attributable Debt with respect to such transactions,
together with all Indebtedness outstanding pursuant to Section 5.01(c) of this Supplemental Indenture, does not exceed 15% of the Consolidated Net Tangible Assets of the Company calculated as of the closing date of the Sale and Leaseback
Transaction.
SECTION 5.03 Limitation on Issuances of Guarantees of Indebtedness.
(a) The Company shall not cause or permit any Domestic Subsidiary (which is not a Guarantor), directly or indirectly, to guarantee, assume or
in any other manner become
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liable with respect to any Indebtedness of the Company or any Domestic Subsidiary unless such Domestic Subsidiary simultaneously executes and delivers a supplemental indenture to the Indenture
providing for a Subsidiary Guarantee of the Notes on the same terms as the guarantee of such Indebtedness except that (A) such guarantee need not be secured unless required pursuant to Section 5.01 of this Supplemental Indenture and
(B) if such Indebtedness is by its terms expressly subordinated to the Notes, any such assumption, guarantee or other liability of such Domestic Subsidiary with respect to such Indebtedness shall be subordinated to such Domestic
Subsidiarys Subsidiary Guarantee of the Notes at least to the same extent as such Indebtedness is subordinated to the Notes; provided that no such Subsidiary Guarantee will be required if the Companys Credit Agreement is no longer
guaranteed by Domestic Subsidiaries and the debt guaranteed by such Domestic Subsidiary does not exceed $75,000,000.
The obligation to
provide Subsidiary Guarantees set forth in the preceding paragraph will not be applicable to any Guarantees of any Domestic Subsidiary given to a bank or trust company or any commercial banking institution that is a member of the U.S. Federal
Reserve System (or any branch, Subsidiary or Affiliate thereof), in connection with the operation of cash management programs established for its benefit or that of any other Domestic Subsidiary.
(b) Notwithstanding subsection (a) of this Section 5.03, any Subsidiary Guarantee by a Domestic Subsidiary of the Notes shall
provide by its terms that it (and all Liens securing the same) shall be automatically and unconditionally released and discharged upon (i) any sale, exchange or transfer, to any Person not an Affiliate of the Company, of all of the
Companys Capital Stock in, or all or substantially all the assets of, such Domestic Subsidiary, which transaction is in compliance with the terms of the Indenture and such Domestic Subsidiary is released from all Guarantees, if any, by it of
other Indebtedness of the Company or any Domestic Subsidiary, (ii) with respect to any Subsidiary Guarantee created after the Issue Date, the release by the holders of the Indebtedness of the Company described in subsection (a) of this
Section 5.03 of their Guarantee by such Domestic Subsidiary (including any deemed release upon payment in full of all obligations under such Indebtedness), at such time as (A) no other Indebtedness of the Company has been guaranteed by
such Domestic Subsidiary or (B) the holders of all such other Indebtedness which is guaranteed by such Domestic Subsidiary also release their Guarantee by such Domestic Subsidiary (including any deemed release upon payment in full of all
obligations under such Indebtedness), and (iii) the Companys Domestic Subsidiaries ceasing to guarantee the Companys Credit Agreement and no Domestic Subsidiary guaranteeing any Indebtedness of the Company or any other Domestic
Subsidiary in an amount exceeding $75,000,000 (other than the Notes).
SECTION 5.04 Merger, Consolidation or Sale of Assets.
(a) The Company shall not, in a single transaction or through a series of related transactions, consolidate or merge with or into any
other Person, or, directly or indirectly, sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets to another Person, or permit any Person to merge with or into it, unless:
(i) the Company is the continuing Person or the successor Person formed by or surviving any such consolidation or merger (if other than the
Company) or to which such sale, assignment, transfer, lease or conveyance or other disposition has been made is a corporation organized and existing under the laws of the United States of America, any State thereof or the District of Columbia;
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(ii) the Person formed by or surviving any such consolidation or merger (if other than the
Company) or the Person to which such sale, assignment, transfer, lease, conveyance or other disposition has been made assumes all the obligations of the Company under the Indenture, including payment of the principal of and interest on the Notes,
and the performance and observance of all of the covenants and conditions of the Indenture to be performed by the Company, by a supplemental indenture, executed and delivered to the Trustee;
(iii) immediately after giving effect to such transaction, no Default or Event of Default shall have occurred and be continuing;
(iv) at the time of such transaction, the Company or the surviving Person shall have delivered, or caused to be delivered, to the Trustee, in
form and substance reasonably satisfactory to the Trustee, an Officers Certificate and an Opinion of Counsel, each to the effect that such consolidation, merger, sale, assignment, transfer, lease or conveyance or other transaction and the
supplemental indenture in respect thereof comply with the Indenture and that all conditions precedent therein provided for relating to such transaction have been complied with; and
(v) at the time of the transaction, each Guarantor, unless it is the other party to the transaction described above, shall have by
supplemental indenture confirmed that its Subsidiary Guarantee shall apply to such Persons obligations under the Indenture and the Notes.
In the event of any transaction (other than a lease) described in and complying with the conditions listed in the immediately preceding
paragraph in which the Company is not the continuing corporation, the successor Person formed or remaining or to which such transfer is made shall succeed to, and be substituted for, and may exercise every right and power of, the Company and the
Company will be discharged from all obligations and covenants under the Indenture and the Notes.
(b) Each Guarantor (other than any
Guarantor whose Subsidiary Guarantee is to be released in accordance with the terms of its Subsidiary Guarantee and the Indenture in connection with the sale, exchange or transfer to any Person (other than an Affiliate of the Company) of all of the
Capital Stock of such Guarantor) shall not, and the Company shall not cause or permit any Guarantor to, consolidate with or merge with or into any Person other than the Company or any other Guarantor unless:
(i) such Guarantor is the surviving corporation or the Person formed by or surviving any such consolidation or merger (if other than the
Guarantor) is a corporation organized and existing under the laws of the United States of America, any State thereof or the District of Columbia and such Person assumes by supplemental indenture all of the obligations of the Guarantor on its
Subsidiary Guarantee; and
(ii) immediately after giving effect to such transaction, no Default or Event of Default shall have occurred
and be continuing.
The successor Guarantor shall succeed to, and except in the case of a lease, be substituted for, such Guarantor under
the Indenture and such Guarantors Subsidiary Guarantee.
SECTION 5.05 Compliance Certificate. The Company shall furnish,
so long as any of the Notes are Outstanding, to the Trustee annually, within 120 days after the end of each fiscal year in which the Notes are Outstanding, a certificate from the principal executive officer, principal financial officer or principal
accounting officer as to his or her knowledge of the Companys compliance with all conditions and covenants under the Indenture (which compliance
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shall be determined without regard to any period of grace or requirement of notice provided under the Indenture). The Company shall, so long as any of the Notes are Outstanding, also deliver to
the Trustee, as soon as possible, but in no event later than five (5) Business Days after the principal executive officer, principal financial officer or principal accounting officer becomes aware of any Default or Event of Default, a
certificate specifying such Default or Event of Default. Such certificates need not comply with Section 16.01 of the Base Indenture.
ARTICLE VI
DEFAULTS AND
REMEDIES
SECTION 6.01 Events of Default.
(a) In addition to those specified in Section 7.01 of the Base Indenture, each of the following is an Event of Default with
respect to the Notes:
(i) failure by the Company to comply with the provisions of Section 4.01 or Section 5.04 of this
Supplemental Indenture;
(ii) default under any Indebtedness of the Company or any of its Subsidiaries having an aggregate amount of at
least $50.0 million constituting a default either (a) of payment of principal when due and payable (whether at scheduled maturity, upon acceleration, redemption or otherwise) or (b) which results in acceleration of the Indebtedness, and in
each case after the Company has received written notice (with a copy to the Trustee if sent by the Holders) of the default from the Trustee or from the Holders of at least 25% of the aggregate principal amount of Notes then Outstanding and
thereafter do not cure the default within 30 days;
(iii) failure by the Company or any of its Subsidiaries to pay final judgments
aggregating in excess of $50.0 million above available insurance coverage or indemnity coverage, which judgments are not paid, discharged or stayed for a period of 60 days; and
(iv) except as permitted by the Indenture, any Subsidiary Guarantee of a Significant Subsidiary of the Company is held in any judicial
proceeding to be unenforceable or invalid.
(b) Clause (c) of Section 7.01 of the Base Indenture shall not apply to the Notes.
(c) Clauses (d), (e) and (f) of Section 7.01 of the Base Indenture are deleted and replaced in their entirety by the
following:
(d) failure by the Company to comply with any of the agreements contained in the Indenture or the Notes (other than an
agreement, a default in the performance of which, is specifically handled elsewhere in this Section 6.01(a) or Section 7.01 of the Base Indenture) for 30 days after written notice is received by the Company from the Trustee or by the
Company and the Trustee from the Holders of at least 25% of the aggregate principal amount of Notes then Outstanding specifying the default (and demanding that such default be remedied);
(e) there shall have been the entry by a court of competent jurisdiction of (a) a decree or order for relief in respect of the
Company or any of its Significant Subsidiaries in an involuntary case or proceeding under any applicable Bankruptcy Law or (b) a decree or order adjudging the Company or any of its Significant Subsidiaries bankrupt or insolvent, or seeking
reorganization, arrangement, adjustment or composition of or in respect of the Company or any of its Significant Subsidiaries under any applicable federal or state law, or appointing a
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custodian, receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of the Company or any of its Significant Subsidiaries or of any substantial party of their respective
properties, or ordering the winding up or liquidation of their affairs, and any such decree or order for relief shall continue to be in effect, or any such other decree or order shall be unstayed and in effect, for a period of 60 consecutive
days;
(f) (i) the Company or any of its Significant Subsidiaries commences a voluntary case or proceeding under any
applicable Bankruptcy Law or any other case or proceeding to be adjudicated bankrupt or insolvent,
(ii) the Company or any of its
Significant Subsidiaries consents to the entry of a decree or order for relief in respect of the Company or such Significant Subsidiary in an involuntary case or proceeding under any applicable Bankruptcy Law or to the commencement of any bankruptcy
or insolvency case or proceeding against it,
(iii) the Company or any of its Significant Subsidiaries files a petition or answer or
consent seeking reorganization or relief under any applicable federal or state law,
(iv) the Company or any of its Significant
Subsidiaries (1) consents to the filing of such petition or the appointment of, or taking possession by, a custodian, receiver, liquidator, assignee, trustee, sequestrator or similar official of the Company or such Significant Subsidiary or of
any substantial part of their respective properties, (2) makes an assignment for the benefit of creditors or (3) admits in writing its inability to pay its debts generally as they become due, or
(v) the Company or any of its Significant Subsidiaries takes any corporate action in furtherance of any such actions described in this clause
(f);
ARTICLE VII
DEFEASANCE AND COVENANT DEFEASANCE; DISCHARGE
SECTION 7.01 Option to Effect Legal Defeasance or Covenant Defeasance. The Company may, at the option of its Board of Directors
evidenced by a resolution set forth in an Officers Certificate, at any time, elect to have either Section 7.02 or 7.03 of this Supplemental Indenture be applied to all Outstanding Notes and Subsidiary Guarantees upon compliance with the
conditions set forth below in this Article VII.
SECTION 7.02 Defeasance and Discharge. Upon the Companys exercise under
Section 7.01 of the option applicable to this Section 7.02, the Company shall, subject to the satisfaction of the conditions set forth in Section 7.04, be deemed to have been discharged from its obligations with respect to all
Outstanding Notes and the related Subsidiary Guarantees on the date the conditions set forth below are satisfied (hereinafter, Defeasance). For this purpose, Defeasance means that the Company, a Guarantor, if applicable, and any other
obligor under the Indenture shall be deemed to have paid and discharged the entire Indebtedness represented by the Outstanding Notes being defeased, which shall thereafter be deemed to be Outstanding only for the purposes of
Section 7.05 and the other Sections of the Indenture referred to in (a) and (b) below, and to have satisfied all its other obligations under such Notes and the Indenture (and the Trustee, on written demand of and at the expense of the
Company, shall execute proper instruments acknowledging the same), except for the following provisions which shall survive until otherwise terminated or discharged hereunder: (a) the rights of Holders of such Outstanding Notes to receive,
solely from the trust fund described in Section 7.04, and as more fully set forth
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in such Section 7.04, payments in respect of the principal of, premium, if any, and interest on such Notes when such payments are due, (b) the Companys obligations with respect to
such Notes under Article II of the Supplemental Indenture and Article III and Section 6.02 of the Base Indenture, (c) the rights, powers, trusts, duties and immunities of the Trustee hereunder and the Companys obligations in
connection therewith and (d) this Article VII. Subject to compliance with this Article VII, the Company may exercise its option under this Section 7.02 notwithstanding the prior exercise of its option under Section 7.03.
SECTION 7.03 Covenant Defeasance. Upon the Companys exercise under Section 7.01 hereof of the option applicable to this
Section 7.03, the Company and each Guarantor shall, subject to the satisfaction of the conditions set forth in Section 7.04 hereof, be released from their obligations under the covenants contained in Sections 4.01, 5.01, 5.02, 5.03, 5.04
and 5.05 of this Supplemental Indenture with respect to the Outstanding Notes, and the Events of Default set forth in Sections 6.01(a)(i), 6.01(a)(ii), 6.01(a)(iii) and 6.01(a)(iv) of this Supplemental Indenture shall cease to apply, in each case,
on and after the date the conditions set forth in Section 7.04 are satisfied (hereinafter, Covenant Defeasance), and the Notes shall thereafter be deemed not Outstanding for the purposes of any direction, waiver, consent
or declaration or act of Holders (and the consequences of any thereof) in connection with such covenants, but shall continue to be deemed Outstanding for all other purposes hereunder (it being understood that the Notes shall not be
deemed Outstanding for accounting purposes). For this purpose, Covenant Defeasance means that, with respect to the Outstanding Notes, the Company and each Guarantor may omit to comply with and shall have no liability in respect of any term,
condition or limitation set forth in any such covenant, whether directly or indirectly, by reason of any reference elsewhere herein to any such covenant or by reason of any reference in any such covenant to any other provision herein or in any other
document and such omission to comply shall not constitute a Default or an Event of Default under Section 6.01 of this Supplemental Indenture or Section 7.01 of the Base Indenture with respect to the Notes, but, except as specified above,
the remainder of the Indenture and such Notes shall be unaffected thereby.
SECTION 7.04 Conditions to Defeasance or Covenant
Defeasance. The following shall be the conditions to the application of either Section 7.02 or 7.03 of this Supplemental Indenture to the Outstanding Notes:
(a) the Company must irrevocably deposit or cause to be deposited with the Trustee, in trust, for the benefit of the Holders of such Notes,
cash in United States dollars, U.S. Government Obligations, or a combination thereof, in such amounts as will be sufficient, in the opinion of a nationally recognized firm of independent public accountants or a nationally recognized investment
banking firm, to pay and discharge the principal of, premium, if any, and interest on such Outstanding Notes on the Stated Maturity;
(b)
in the case of an election under Section 7.02 of this Supplemental Indenture, the Company shall have delivered to the Trustee an Opinion of Counsel from independent counsel in the United States stating that (A) the Company has received
from, or there has been published by, the Internal Revenue Service a ruling, or (B) since the Issue Date, there has been a change in the applicable U.S. federal income tax law, in either case to the effect that, and based thereon such Opinion
of Counsel from independent counsel in the United States shall confirm that, the beneficial owners of such Outstanding Notes will not recognize income, gain or loss for U.S. federal income tax purposes as a result of such Defeasance and will be
subject to U.S. federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Defeasance had not occurred;
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(c) in the case of an election under Section 7.03, the Company shall have delivered to the
Trustee an Opinion of Counsel from independent counsel in the United States to the effect that the beneficial owners of such Outstanding Notes will not recognize income, gain or loss for U.S. federal income tax purposes as a result of such Covenant
Defeasance and will be subject to U.S. federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Covenant Defeasance had not occurred;
(d) no Default or Event of Default shall have occurred and be continuing with respect to such Notes either (a) on the date of such
deposit (other than a Default or Event of Default solely resulting from the borrowing of funds to be applied to such deposit); or (b) insofar as clauses (e) and (f) of Section 7.01 of the Base Indenture (as amended pursuant to
Section 6.01(c) of this Supplemental Indenture) are concerned, at any time during the period ending on the 91st day after the date of deposit;
(e) such Defeasance or Covenant Defeasance shall not result in a breach or violation of, or constitute a Default under, the Indenture or any
other material agreement or instrument (other than, to the extent set forth in clause (d) above, the Indenture) to which the Company or any Guarantor is a party or by which it is bound;
(f) such Defeasance or Covenant Defeasance shall not result in the trust arising from such deposit constituting an investment company within
the meaning of the Investment Company Act of 1940, as amended, unless such trust shall be registered under such Act or exempt from registration thereunder;
(g) the Company shall have delivered to the Trustee an Opinion of Counsel from independent counsel in the United States to the effect that
after the 91st day following the date of deposit, the trust funds will not be subject to the effect of any applicable bankruptcy, insolvency, reorganization or similar laws affecting creditors rights generally;
(h) the Company shall have delivered to the Trustee an Officers Certificate stating that the deposit was not made by the Company with
the intent of preferring the Trustee, Holders of such Notes or any Subsidiary Guarantee over the other creditors of the Company or any Guarantor with the intent of defeating, hindering, delaying or defrauding creditors of the Company or any
Guarantor or others; and
(i) the Company shall have delivered to the Trustee an Officers Certificate and an Opinion of Counsel from
independent counsel in the United States, each stating that all conditions precedent relating to either the Defeasance or the Covenant Defeasance, as the case may be, have been complied with.
SECTION 7.05 Deposited Money and U.S. Government Obligations to Be Held in Trust; Other Miscellaneous Provisions.
Subject to Section 7.06 of this Supplemental Indenture, all money and non-callable U.S. Government Obligations (including the proceeds
thereof) deposited with the Trustee (or other qualifying trustee, collectively for purposes of this Section 7.05, the Trustee) pursuant to Section 7.04 of this Supplemental Indenture in respect of the Outstanding Notes being
defeased shall be held in trust and applied by the Trustee, in accordance with the provisions of such Notes and the Indenture, to the payment, either directly or through any Paying Agent (including the Company acting as Paying Agent) to the Holders
of such Notes of all sums due and to become due thereon in respect of principal, premium, if any, and interest, but such money need not be segregated from other funds except to the extent required by law.
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The Company shall pay and indemnify the Trustee against any tax, fee or other charge imposed on
or assessed against the cash or non-callable U.S. Government Obligations deposited pursuant to Section 7.04 of this Supplemental Indenture or the principal and interest received in respect thereof other than any such tax, fee or other charge
which by law is for the account of the Holders of the Outstanding Notes being defeased.
Anything in this Article VII to the contrary
notwithstanding, the Trustee shall deliver or pay to the Company from time to time upon the written request of the Company any money or non-callable U.S. Government Obligations held by it as provided in Section 7.04 of this Supplemental
Indenture which, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee (which may be the opinion delivered under Section 7.04(a) of this
Supplemental Indenture), are in excess of the amount thereof that would then be required to be deposited to effect an equivalent Defeasance or Covenant Defeasance.
SECTION 7.06 Repayment to the Company. Subject to applicable laws relating to abandoned property, any money deposited with the
Trustee or any Paying Agent, or then held by the Company, in trust for the payment of the principal of, premium, if any, or interest on any Note and remaining unclaimed for two years after such principal, and premium, if any, or interest has become
due and payable shall be paid to the Company on its written request or (if then held by the Company) shall be discharged from such trust; and the Holder of such Note shall thereafter, as a secured creditor, look only to the Company for payment
thereof, and all liability of the Trustee or such Paying Agent with respect to such trust money, and all liability of the Company as trustee thereof, shall thereupon cease.
SECTION 7.07 Reinstatement. If the Trustee or Paying Agent is unable to apply any United States dollars or non-callable U.S.
Government Obligations in accordance with Section 7.02 or 7.03 of this Supplemental Indenture, as the case may be, by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such
application, then the Companys obligations under the Indenture and the Notes theretofore defeased shall be revived and reinstated as though no deposit had occurred pursuant to Section 7.02 or 7.03 of this Supplemental Indenture until such
time as the Trustee or Paying Agent is permitted to apply all such money in accordance with such Section 7.02 or 7.03, as the case may be; provided, however, that, if the Company makes any payment of principal of, premium, if any,
or interest on any Note following the reinstatement of its obligations, the Company shall be subrogated to the rights of the Holders of such Notes to receive such payment from the money held by the Trustee or Paying Agent.
SECTION 7.08 Discharge. The Indenture will be discharged and will cease to be of further effect (except as to surviving rights of
registration of transfer or exchange of the Notes as expressly provided for in the Indenture) and the Trustee, at the expense and written direction of the Company, will execute proper instruments acknowledging satisfaction and discharge of the
Indenture as to all Outstanding Notes under the Indenture when:
(a) either:
(i) all such Notes theretofore authenticated and delivered (except lost, stolen or destroyed Notes which have been replaced or paid or Notes
whose payment has been deposited in trust or segregated and held in trust by the Company and thereafter repaid to the Company or discharged from such trust as provided for in the Indenture) have been delivered to the Trustee for cancellation, or
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(ii) all such Notes not theretofore delivered to the Trustee for cancellation (a) have
become due and payable, (b) will become due and payable at their Stated Maturity within one year or (c) are to be called for redemption within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption
by the Trustee in the name, and at the expense, of the Company;
(b) the Company or any Guarantor has irrevocably deposited or caused to
be deposited with the Trustee as trust funds in trust an amount in United States dollars sufficient to pay and discharge the entire Indebtedness on such Notes not theretofore delivered to the Trustee for cancellation, including principal of,
premium, if any, and accrued interest at such Maturity, Stated Maturity or redemption date;
(c) no Default or Event of Default shall have
occurred and be continuing on the date of such deposit or shall occur as a result of such deposit and such deposit will not result in a breach or violation of, or constitute a default under, any other material agreement to which the Company or any
Guarantor is a party or by which the Company or any Guarantor is bound;
(d) the Company or any Guarantor has paid or caused to be paid
all sums payable under the Indenture by the Company and any Guarantor;
(e) the Company has delivered irrevocable instructions to the
Trustee to apply such funds to the payment of the Notes at Maturity or redemption, as the case may be; and
(f) the Company has delivered
to the Trustee an Officers Certificate and an Opinion of Counsel each stating that all conditions precedent under the Indenture relating to the satisfaction and discharge of such Indenture have been complied with.
ARTICLE VIII
AMENDMENT,
SUPPLEMENT AND WAIVER
SECTION 8.01 Without Consent of Holders of Notes. Notwithstanding Section 8.02 of this
Supplemental Indenture, the Company, the Guarantors and the Trustee may amend or supplement the Indenture or the Notes without notice to or the consent of any Holder of a Note:
(1) to cure any ambiguity, defect or inconsistency in the Indenture or the Notes;
(2) to provide for uncertificated Notes in addition to or in place of certificated Notes;
(3) to provide for the assumption of the Companys obligations to Holders of Notes in the case of a merger or consolidation or sale of
all or substantially all of the Companys assets;
(4) to make any change that, in the good faith opinion of the Board of Directors
of the Company, would provide any additional rights or benefits to the Holders of Notes or that does not adversely affect the legal rights under the Indenture of any such Holder;
(5) to secure the Notes or to add additional Guarantors;
(6) to comply with the requirements of the SEC in order to effect or maintain the qualification of the Indenture under the Trust Indenture
Act;
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(7) to conform the text of the Indenture or the Notes to any provision of the Description
of the Notes in the Prospectus Supplement to the extent that such provision in the Description of the Notes in the Prospectus Supplement was intended to be a verbatim recitation of the Indenture, the Subsidiary Guarantees or the
Notes;
(8) to remove a Guarantor which, in accordance with the terms of the Indenture, ceases to be liable in respect of its Subsidiary
Guarantee;
(9) to add to the covenants of the Company or any Guarantor for the benefit of the Holders of Notes or to surrender any right
or power conferred upon the Company or any Guarantor;
(10) to provide for the issuance of additional Notes in accordance with the
limitations set forth in the Indenture as of the Issue Date;
(11) to comply with the provisions of the DTC or the Trustee with respect to
the provisions in the Indenture and the Notes relating to transfer and exchanges of Notes or beneficial interests in Notes; and
(12)
evidence and provide for the acceptance of appointment by a successor trustee.
SECTION 8.02 With Consent of Holders of Notes.
Except as provided below in this Section 8.02, the Company, the Guarantors and the Trustee may amend or supplement the Indenture or
the Notes and/or any Subsidiary Guarantees may be amended or supplemented (including, without limitation, consents obtained in connection with a purchase of, tender offer or exchange offer for, Notes) of the holders of at least a majority in
aggregate principal amount of Outstanding Notes affected by such modifications or amendments; and, subject to Section 7.06 of the Base Indenture, any existing Default or Event of Default (other than a Default or Event of Default in the payment
of the principal of, premium, if any, or interest on the Notes, except a payment default resulting from an acceleration that has been rescinded) or compliance with any provision of the Indenture, the Notes or the Subsidiary Guarantees may be waived
with the consent of the Holders of a majority in principal amount of the then Outstanding Notes (including consents obtained in connection with a purchase of, tender offer or exchange offer for, Notes).
Upon the written request of the Company accompanied by a resolution of its Board of Directors authorizing the execution of any such amended or
supplemental Indenture, and upon the filing with the Trustee of evidence satisfactory to the Trustee of the consent of the Holders of Notes as aforesaid, and upon receipt by the Trustee of any document requested by it pursuant to
Section 11.02(e) of the Base Indenture, the Trustee shall join with the Company and the Guarantors in the execution of such amended or supplemental Indenture and to make any further appropriate agreements and stipulations that may be therein
contained, unless such amended or supplemental Indenture directly affects the Trustees own rights, duties or immunities under the Indenture or otherwise, in which case the Trustee may in its discretion, but shall not be obligated to, enter
into such amended or supplemental Indenture.
It shall not be necessary for the consent of the Holders of Notes under this
Section 8.02 to approve the particular form of any proposed amendment or waiver, but it shall be sufficient if such consent approves the substance thereof.
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After an amendment, supplement or waiver under this Section 8.02 becomes effective, the
Company shall mail to the Holders of Notes affected thereby a notice briefly describing the amendment, supplement or waiver. Any failure of the Company to mail such notice, or any defect therein, shall not, however, in any way impair or affect the
validity of any such amended or supplemental Indenture or waiver. Subject to Section 7.06, the Holders of a majority in aggregate principal amount of the Notes then Outstanding voting as a single class may waive compliance in a particular
instance by the Company and/or the Guarantors with any provision of this Indenture, the Notes or the Subsidiary Guarantees. However, without the consent of each Holder affected, an amendment or waiver under this Section 8.02 may not (with
respect to any Notes held by a non-consenting Holder):
(1) reduce the principal amount of Notes whose Holders must consent to an
amendment, supplement or waiver;
(2) reduce the principal of or change the fixed maturity of any Note or alter the provisions with
respect to the redemption of Notes (other than provisions relating to the covenants described in Section 4.01 of this Supplemental Indenture);
(3) reduce the rate of interest on any Note other than as expressly contemplated by the Indenture or change the time for payment of interest
on any Note;
(4) waive a Default or Event of Default in the payment of principal of and interest on the Notes (except a rescission of
acceleration of the Notes by the Holders of at least a majority in aggregate principal amount of the Outstanding Notes and a waiver of the payment default that resulted from such acceleration);
(5) make any Note payable in money other than that stated in the Notes;
(6) make any change in the provisions of the Indenture relating to waivers of past Defaults or the rights of Holders of Notes to receive
payments of principal of or interest on the Notes;
(7) waive a redemption payment with respect to any Note (other than a payment required
by one of the covenants described in Section 4.01 of this Supplemental Indenture);
(8) make any change in the foregoing amendment
and waiver provisions;
(9) modify, without the written consent of the Trustee, the rights, duties or immunities of the Trustee; or
(10) release any Guarantor that is a Significant Subsidiary from its Subsidiary Guarantee, except as provided in the Indenture.
SECTION 8.03 Revocation and Effect of Consents. Until an amendment, supplement or waiver becomes effective, a consent to it by a
Holder of a Note is a continuing consent by the Holder of a Note and every subsequent Holder of a Note or portion of a Note that evidences the same debt as the consenting Holders Note, even if notation of the consent is not made on any Note.
However, any such Holder of a Note or subsequent Holder of a Note may revoke the consent as to its Note if the Trustee receives written notice of revocation before the date the waiver, supplement or amendment becomes effective. An amendment,
supplement or waiver becomes effective in accordance with its terms and thereafter binds every Holder.
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SECTION 8.04 Notation on or Exchange of Notes. The Trustee may place an appropriate
notation about an amendment, supplement or waiver on any affected Note thereafter authenticated. The Company in exchange for all affected Notes may issue and the Trustee shall, upon receipt of an authentication order, authenticate new Notes that
reflect the amendment, supplement or waiver. Failure to make the appropriate notation or issue a new Note shall not affect the validity and effect of such amendment, supplement or waiver.
SECTION 8.05 Trustee to Sign Amendments, etc. The Trustee shall sign any amended or supplemental Indenture authorized pursuant to
this Article VIII if the amendment or supplement does not in the judgment of the Trustee adversely affect the rights, duties, liabilities or immunities of the Trustee. The Company may not sign an amendment or supplemental Indenture until its Board
of Directors approves it. In executing any amended or supplemental indenture, the Trustee shall receive and (subject to Section 11.01 of the Base Indenture) shall be fully protected in conclusively relying upon an Officers Certificate and
an Opinion of Counsel stating that the execution of such amended or supplemental Indenture is authorized or permitted by this Indenture.
ARTICLE IX
GUARANTEES
SECTION 9.01 Guarantee.
Subject to this Article IX, each of the Guarantors hereby, jointly and severally, unconditionally guarantees to each Holder of a Note
authenticated and delivered by the Trustee and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of the Indenture, the Notes or the obligations of the Company hereunder or thereunder, that: (a) the
principal of, premium, if any, and interest on the Notes will be promptly paid by the Company in full when due, whether at Maturity, by acceleration, redemption or otherwise, and interest on the overdue principal of, premium, if any, and interest on
the Notes, if any, if lawful, and all other obligations of the Company to the Holders or the Trustee hereunder or thereunder will be promptly paid by the Company in full or performed by the Company, all in accordance with the terms hereof and
thereof; and (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that same will be promptly paid by the Company in full when due or performed by the Company in accordance with the terms of
the extension or renewal, whether at Stated Maturity, by acceleration or otherwise. Failing payment when due by the Company of any amount so guaranteed or any performance so guaranteed which failure continues for ten (10) days after demand
therefor is made to the Company for whatever reason, the Guarantors shall be jointly and severally obligated to pay the same immediately. Each Guarantor agrees that this is a Guarantee of payment and not a Guarantee of collection.
The Guarantors hereby agree that their obligations hereunder shall be unconditional, irrespective of the validity, regularity or
enforceability of the Notes or the Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions hereof or thereof, the recovery of any judgment against the Company, any
action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a Guarantor. Each Guarantor hereby waives diligence, presentment, demand of payment (except as specifically provided
in the preceding paragraph), filing of claims with a court in the event of insolvency or bankruptcy of the Company, any right to require a proceeding first against the Company, protest, notice and all demands (except as specifically provided in the
preceding paragraph) whatsoever and covenant
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that this Subsidiary Guarantee shall not be discharged except by complete performance of the obligations contained in the Notes and the Indenture. Each Guarantor also expressly waives, without
any requirement of any notice to or further assent by such Guarantor, to the fullest extent permitted by applicable law, the benefit of all principles or provisions of applicable law which are or might be in conflict with the terms hereof,
including, without limitation, Section 10-7-23 and Section 10-7-24 of the Official Code of Georgia Annotated.
If any Holder or
the Trustee is required by any court or otherwise to return to the Company, the Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to either the Company or the Guarantors, any amount paid by either to the
Trustee or such Holder, this Subsidiary Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect.
Each Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any obligations
guaranteed hereby until payment in full of all obligations guaranteed hereby. Each Guarantor further agrees that, as between the Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the
obligations guaranteed hereby may be accelerated as provided in Article VII of the Base Indenture and Article VI of this Supplemental Indenture for the purposes of this Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition
preventing such acceleration in respect of the obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such obligations as provided in Article VII of the Base Indenture and Article VI of this Supplemental
Indenture, such obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantors for the purpose of this Subsidiary Guarantee, failing payment when due by the Company which failure continues for ten
(10) days after demand therefor is made to the Company. The Guarantors shall have the right to seek contribution from any non-paying Guarantor so long as the exercise of such right does not impair the rights of the Holders under the Subsidiary
Guarantee.
SECTION 9.02 Limitation on Guarantor Liability. Each Guarantor, and by its acceptance of Notes, each Holder,
hereby confirms that it is the intention of all such parties that the Subsidiary Guarantee of such Guarantor not constitute a fraudulent transfer or conveyance for purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform
Fraudulent Transfer Act or any similar federal or state law to the extent applicable to any Subsidiary Guarantee. To effectuate the foregoing intention, the Trustee, the Holders and the Guarantors hereby irrevocably agree that the obligations of
such Guarantor under its Subsidiary Guarantee and this Article IX shall be limited to the maximum amount as will, after giving effect to such maximum amount and all other contingent and fixed liabilities of such Guarantor that are relevant under
such laws, and after giving effect to any collections from, rights to receive contribution from or payments made by or on behalf of any other Guarantor in respect of the obligations of such other Guarantor under this Article IX, result in the
obligations of such Guarantor under its Subsidiary Guarantee not constituting a fraudulent transfer or conveyance.
SECTION 9.03
Execution and Delivery of Guarantee.
To evidence the Subsidiary Guarantees set forth in Section 9.01 of this Supplemental
Indenture, the Company hereby agrees to cause a notation of such Subsidiary Guarantee substantially in the form of Exhibit B hereto to be endorsed by manual or facsimile signature by an officer of each Guarantor on each Note authenticated and
delivered by the Trustee. The Company shall cause all future Guarantors to execute a supplemental indenture substantially in the form of Exhibit C hereto.
33
Each Guarantor hereby agrees that its Subsidiary Guarantee set forth in Section 9.01 of this
Supplemental Indenture and in any subsequent supplemental indentures shall remain in full force and effect notwithstanding any failure to endorse on each Note a notation of such Subsidiary Guarantee.
If an officer whose signature is on any supplemental indenture or on the Subsidiary Guarantee no longer holds that office at the time the
Trustee authenticates the Note on which a Subsidiary Guarantee is endorsed, the Subsidiary Guarantee shall be valid and obligatory nevertheless.
The delivery of any Note by the Trustee, after the authentication thereof hereunder, shall constitute due delivery of the Subsidiary Guarantee
set forth in this Supplemental Indenture on behalf of the Guarantors.
In the event that the Company creates or acquires any new Domestic
Subsidiaries subsequent to the date of this Supplemental Indenture, if required by Section 5.03 of this Supplemental Indenture, the Company shall cause such Domestic Subsidiaries to execute supplemental indentures to the Indenture and
Subsidiary Guarantees in accordance with Section 5.03 of this Supplemental Indenture and this Article IX, to the extent applicable; provided that no such Subsidiary Guarantee will be required if the Companys Credit Agreement is no longer
guaranteed by Domestic Subsidiaries and the debt guaranteed by such Domestic Subsidiary does not exceed $75,000,000.
SECTION 9.04
Release of Guarantor. The Subsidiary Guarantee of a Guarantor will be released:
(a) upon any sale, exchange or transfer, to any
Person not an Affiliate of the Company, of all of the Companys Capital Stock in, or all or substantially all the assets of, such Domestic Subsidiary, which transaction is in compliance with the terms of the Indenture and such Domestic
Subsidiary is released from all guarantees, if any, by it of other Indebtedness of the Company or any Domestic Subsidiary;
(b) either
Defeasance or Covenant Defeasance occurs with respect to such Notes in compliance with Article VII of this Supplemental Indenture;
(c)
with respect to any Subsidiary Guarantees created after the Issue Date, the release by the holders of the Indebtedness of the Company described in Section 5.03(a) of this Supplemental Indenture of their Guarantee by such Domestic Subsidiary
(including any deemed release upon payment in full of all obligations under such Indebtedness), at such time as (A) no other Indebtedness of the Company has been guaranteed by such Domestic Subsidiary or (B) the holders of all such other
Indebtedness which is guaranteed by such Domestic Subsidiary also release their Guarantee by such Domestic Subsidiary (including any deemed release upon payment in full of all obligations under such Indebtedness); or
(d) upon the Companys Domestic Subsidiaries ceasing to guarantee the Companys Credit Agreement and no Domestic Subsidiary
guaranteeing any Indebtedness of the Company or any other Domestic Subsidiary in an amount exceeding $75,000,000 (other than the Notes).
The Trustee, at the expense and written direction of the Company, will execute proper instruments acknowledging the termination of such
Subsidiary Guarantee as reasonably required by the representative of such Guarantor.
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Any Guarantor not released from its obligations under its Subsidiary Guarantee shall remain
liable for the full amount of principal and premium, if any, of and interest on the Notes and for the other obligations of any Guarantor under the Indenture as provided in this Article IX.
SECTION 9.05 Acknowledgement of Manufacturers Letter Agreements. It is hereby acknowledged that the enforcement of certain
rights with respect to the Subsidiary Guarantees is subject to the terms and conditions of the Manufacturers Letter Agreements.
SECTION 9.06 Certain California Law Waivers. As used in this Section 9.06, any reference to the principal
includes the Company, and any reference to the creditor includes the Holders. In accordance with Section 2856 of the California Civil Code:
(a) each Guarantor agrees (i) to waive any and all rights of subrogation and reimbursement against the Company or against any collateral
or security granted by the Company for any of the Guarantors obligations and (ii) to withhold the exercise of any and all rights of contribution against any other guarantor of any of the Guarantors obligations and against any
collateral or security granted by any such other guarantor for any of the Guarantors obligations until the Guarantors obligations shall have been indefeasibly paid in full;
(b) each Guarantor waives any and all other rights and defenses available to the Guarantor by reason of Sections 2787 to 2855, inclusive, 2899
and 3433 of the California Civil Code, including any and all rights or defenses Guarantor may have by reason of protection afforded to the principal with respect to any of the Guarantors obligations, or to any other guarantor of any of the
Guarantors obligations with respect to any of such guarantors obligations under its guaranty, in either case pursuant to the antideficiency or other laws of the State of California limiting or discharging the principals
indebtedness or such guarantors obligations, including Section 580a, 580b, 580d, or 726 of the California Code of Civil Procedure; and
(c) each Guarantor waives all rights and defenses arising out of an election of remedies by the creditor, even though that election of
remedies, such as a nonjudicial foreclosure with respect to security for any Subsidiary Guarantee obligation, has destroyed Guarantors rights of subrogation and reimbursement against the principal by the operation of Section 580d of the
Code of Civil Procedure or otherwise; and even though that election of remedies by the creditor, such as nonjudicial foreclosure with respect to security for an obligation of any other guarantor of any of the Guarantors obligations, has
destroyed Guarantors rights of contribution against such other guarantor.
No other provision of this Article IX shall be construed
as limiting the generality of any of the covenants and waivers set forth in this Section 9.06. In accordance with Section 10.06 of this Supplemental Indenture, the Subsidiary Guarantees shall be governed by, and shall be construed and
enforced in accordance with, the internal laws of the State of New York. This Section 9.06 is included solely out of an abundance of caution, and shall not be construed to mean that any of the above-referenced provisions of California law are
in any way applicable to the Subsidiary Guarantees or to any of the Guarantors obligations.
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ARTICLE X
MISCELLANEOUS PROVISIONS
SECTION 10.01 Ratification of Base Indenture. This Supplemental Indenture is executed and shall be construed as an indenture
supplemental to the Base Indenture, and as supplemented and modified hereby, the Base Indenture is in all respects ratified and confirmed, and the Base Indenture and this Supplemental Indenture shall be read, taken and construed as one and the same
instrument.
SECTION 10.02 Conflict with Trust Indenture Act. If any provision hereof limits, qualifies or conflicts with
another provision hereof, or with a provision of the Base Indenture, which is required to be included in this Supplemental Indenture, or in the Base Indenture, respectively, by any of the provisions of the Trust Indenture Act, such required
provision shall control to the extent it is applicable.
SECTION 10.03 Conflict with Base Indenture. To the extent not
previously amended or modified by this Supplemental Indenture, the Base Indenture shall remain in full force and effect. If any provision of this Supplemental Indenture relating to the Notes is inconsistent with any provision of the Base Indenture,
the provision of this Supplemental Indenture shall control.
SECTION 10.04 Effect of Headings. The Article and Section
headings herein are for convenience only and shall not affect the construction hereof.
SECTION 10.05 Successors and Assigns.
All covenants and agreements in this Supplemental Indenture by the Company shall bind its successors and assigns, whether so expressed or not.
SECTION 10.06 Separability Clause. In case any one or more of the provisions contained in this Supplemental Indenture or in the
Notes shall for any reason be held to be invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
SECTION 10.07 GOVERNING LAW. THIS SUPPLEMENTAL INDENTURE, THE NOTES AND THE SUBSIDIARY GUARANTEES SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
SECTION 10.08 WAIVER OF JURY TRIAL. THE COMPANY, EACH
GUARANTOR AND THE TRUSTEE EACH HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY SUIT, ACTION OR OTHER PROCEEDING ARISING OUT OF OR RELATING TO THE
INDENTURE, THE NOTES, THE SUBSIDIARY GUARANTEES OR THE TRANSACTIONS CONTEMPLATED HEREBY.
SECTION 10.09 Counterparts. This
Supplemental Indenture may be executed in any number of counterparts, and each of such counterparts shall for all purposes be deemed to be an original, but all such counterparts shall together constitute one and the same instrument. The exchange of
copies of this Supplemental Indenture and of signature pages by facsimile or PDF transmission shall constitute effective execution and delivery of this Supplemental Indenture as to the parties hereto and may be used in lieu of the original Indenture
for all purposes. Signatures of the parties hereto transmitted by facsimile or PDF shall be deemed to be their original signatures for all purposes.
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[Signature page follows]
37
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly
executed, all as of the day and year first above written.
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AUTONATION, INC. |
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By: |
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/s/ Cheryl Miller |
Name: |
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Cheryl Miller |
Title: |
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Executive Vice President and Chief Financial
Officer |
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THE GUARANTORS NAMED IN SCHEDULE 1 HERETO |
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By: |
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/s/ C. Coleman G. Edmunds |
Name: |
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C. Coleman G. Edmunds |
Title: |
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Authorized Signatory |
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WELLS FARGO BANK, NATIONAL ASSOCIATION, as Trustee |
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By: |
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/s/ Stefan Victory |
Name: |
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Stefan Victory |
Title: |
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Vice President |
EXHIBIT A
[GLOBAL NOTE LEGEND]
[THIS
GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE SUPPLEMENTAL INDENTURE GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES EXCEPT THAT
(I) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAYBE REQUIRED PURSUANT TO SECTION 4.06 OF THE BASE INDENTURE, (II) THIS GLOBAL NOTE MAYBE EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 4.06 OF THE BASE INDENTURE, (III) THIS GLOBAL
NOTE MAYBE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO SECTION 3.07 OF THE BASE INDENTURE AND (IV) THIS GLOBAL NOTE MAYBE TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF THE COMPANY.
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (DTC), TO
THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BYAN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF,
CEDE & CO., HAS AN INTEREST HEREIN.]*
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Legend to be included only for Global Notes |
A-1
[FORM OF FACE OF NOTE]
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No. |
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$[ ] |
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CUSIP No. 05329WAL6
ISIN: US05329WAL63 |
3.350% Senior Notes due 2021
AutoNation, Inc., a Delaware corporation, promises to pay to [ ], or registered assigns, the
principal sum of [ ] Dollars ($[ ]) on January 15, 2021, unless earlier redeemed or repurchased.
Interest Payment Dates: January 15 and July 15, commencing January 15, 2016.
Record Dates: January 1 and July 1.
Additional provisions of this Note are set forth on the other side of this Note.
IN WITNESS HEREOF, the Company has caused this instrument to be duly executed
Dated:
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AUTONATION, INC. |
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By: |
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Name: |
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Title: |
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A-2
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Dated: |
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TRUSTEES CERTIFICATE OF AUTHENTICATION |
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WELLS FARGO BANK, NATIONAL ASSOCIATION
as Trustee, certifies that this is one of the Global Notes referred to in the within mentioned Indenture. |
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By: |
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Authorized Signatory |
A-3
[FORM OF REVERSE SIDE OF NOTE]
3.350% Senior Notes due 2021
Capitalized terms used herein shall have the meanings assigned to them in the Indenture referred to below unless otherwise indicated.
AutoNation, Inc. (such corporation, and its successors and assigns under the
Indenture hereinafter referred to, being herein called the Company), promises to pay interest on the principal amount of this Note at the rate per annum shown above, subject to adjustment as provided in the Indenture. The Company shall
pay interest semi-annually in arrears on January 15 and July 15 of each year, or, if such date is not a Business Day, on the next succeeding Business Day (each, an Interest Payment Date), commencing January 15, 2016.1 Interest on the Notes shall accrue from the most recent Interest Payment Date to which interest has been paid or, if no interest has been paid, from September 21, 2015.2 The Company shall pay interest on overdue principal and premium, if any, and interest on overdue installments of interest, to the extent lawful, at the interest rate for the Notes. Interest shall be
computed on the basis of a 360-day year comprised of twelve 30-day months.
The Company shall pay interest on the Notes to the Persons who are
registered Holders of Notes at the close of business on the January 1 or July 1 immediately preceding the relevant Interest Payment Date, even if such Notes are canceled after such record date and on or before such Interest Payment Date,
except with respect to defaulted interest. The Notes shall be payable as to principal, premium and interest at the office or agency of the Company maintained for such purpose within or without the City and State of New York, or, at the option of the
Company, payment of interest may be made by check mailed to the Holders at their addresses set forth in the register of Holders, and provided that payment by wire transfer of immediately available funds shall be required with respect to principal of
and interest and premium on all Global Notes and all other Notes the Holders of which shall have provided wire transfer instructions no later than 30 days immediately preceding the relevant due date for payment (or such other date as the Trustee may
accept in its judgment), to the Company or the Paying Agent. Such payment shall be in such coin or currency of the United States of America at the time of payment is legal tender for payment of public and private debts.
3. |
Paying Agent and Registrar |
Initially, Wells Fargo Bank, National Association, the
Trustee under the Indenture, shall act as Paying Agent and Registrar. The Company may appoint and change any Paying Agent or Registrar without notice to any holder. The Company or any of its Subsidiaries may act as Paying Agent or Registrar.
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In the case of Notes issued on the Issue Date. |
2 |
In the case of Notes issued on the Issue Date. |
A-4
The Company issued the Notes under an Indenture dated as of April 14,
2010 (the Base Indenture), as supplemented by that Supplemental Indenture dated as of September 21, 2015 (the Supplemental Indenture and, together with the Base Indenture, the Indenture), each among the
Company, the Guarantors and the Trustee. The terms of the Notes include those stated in the Indenture and those made part of the Indenture by reference to the Trust Indenture Act of 1939, as amended (15 U.S.C. § § 77aaa-77bbbb) (the
Trust Indenture Act). Terms defined in the Indenture and not defined herein have the meanings ascribed thereto in the Indenture. The Notes are subject to all such terms, and Holders are referred to the Indenture and the Trust Indenture
Act for a statement of those terms.
The Company shall be entitled, subject to its compliance with Section 2.03(e) of the
Supplemental Indenture, to create and issue further securities having the same ranking and terms and conditions as the Notes in all respects, except for the issue date, the public offering price and, in some cases, the first Interest Payment Date.
The Notes initially issued on the Issue Date and any additional Notes shall be treated as a single class for all purposes under the Indenture.
Except as described below, the Notes will not be redeemable by the
Company prior to Maturity.
The Company shall have the right to redeem the Notes at any time in whole, or from time to time, in part at a
redemption price (the Redemption Price) equal to the greater of: (i) 100% of the principal amount of the Notes to be redeemed; and (ii) the sum of the present values of the remaining scheduled payments of principal and interest
on the Notes to be redeemed, exclusive of interest accrued to the date of redemption, discounted to the date of redemption on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Yield, plus 30 basis
points, plus accrued and unpaid interest to, but not including, the date of redemption.; provided, however, that at any time on or after December 15, 2020, the Company may redeem the Notes, at its option, in whole, or from time to time
in part, at a redemption price equal to 100% of the principal amount of the Notes to be redeemed, plus accrued and unpaid interest thereon to, but not including, the date of redemption.
The Notes called for redemption become due on the date fixed for
redemption. Notice of redemption (with a copy to the Trustee) shall be mailed at least 30 days but not more than 60 days before the Redemption Date to each Holder to be redeemed at his or her registered address.
7. |
Repurchase at Option of Holder Upon Change of Control Repurchase Event |
If a Change of
Control Repurchase Event occurs, unless the Company has exercised its right to redeem the Notes pursuant to the Indenture, the Company shall be required to make an offer to each Holder of the Notes to repurchase all or a portion of such
Holders Notes (the Change of Control Offer), at a purchase price equal to 101% of the aggregate principal amount thereof plus accrued interest, if any, to the date of purchase (subject to the right of holders of record on the
relevant record date to receive interest due on an interest payment date that is on or prior to the date fixed for redemption). Within 30 days following the date upon which the Change of Control Repurchase Event occurred, the Company must send (with
a copy to the Trustee), by first class mail, a notice to each Holder, which notice shall govern the terms of the Change of Control Offer and shall be in compliance with the Indenture.
A-5
Holders electing to have a Note purchased pursuant to a Change of Control Offer shall be required to surrender the Note, with the form entitled Option of Holder to Elect Purchase on
the reverse of the Note completed, to the Paying Agent at the address specified in the notice.
8. |
Denominations; Transfer; Exchange |
The Notes are in registered form without coupons in
minimum denominations of $2,000 principal and integral multiples of $1,000 in excess thereof. A Holder may register, transfer or exchange Notes in accordance with the Indenture. The Registrar may require a Holder, among other things, to furnish
appropriate endorsements or transfer documents and to pay any taxes and fees required by law or permitted by the Indenture. The Registrar need not register the transfer of or exchange any Notes selected for redemption (except, in the case of a Note
to be redeemed in part, the portion of the Note not to be redeemed) or any Notes for a period of 15 days before a selection of Notes to be redeemed.
The registered Holder of this Note may be treated as the owner
of it for all purposes.
10. |
Discharge and Defeasance |
Subject to certain conditions set forth in the Indenture, the
Company at any time shall be entitled to terminate some or all of its and the Guarantors obligations under the Notes and the Indenture if the Company deposits with the Trustee money or U.S. Government Obligations for the payment of principal,
premium, if any, and interest on the Notes to redemption or maturity, as the case may be.
The Indenture, the Subsidiary Guarantees or the Notes may be amended
or supplemented as provided in the Indenture.
12. |
Defaults and Remedies |
If any Event of Default (as defined in the Indenture) occurs and
is continuing, the Trustee or the Holders of at least 25% in principal amount of the then Outstanding Notes may declare all the Notes to be due and payable by notice in writing to the Company and the Trustee (if declared by the Holders) specifying
the respective Event of Default and that it is a notice of acceleration, and the same shall become immediately due and payable. Holders may not enforce the Indenture or the Notes except as provided in the Indenture and the Trust
Indenture Act. Subject to certain limitations, Holders of a majority in principal amount of the then Outstanding Notes may direct the Trustee in its exercise of any trust or power. However, the Trustee may refuse to follow any direction that
conflicts with law or the Indenture or that the Trustee determines may be unduly prejudicial to the rights of other Holders of Notes or that may involve the Trustee in personal liability. The Company is required to deliver to the Trustee annually a
statement regarding compliance with the Indenture, and the Company is required upon becoming aware of any Default or Event of Default, to deliver to the Trustee a statement specifying such Default or Event of Default.
A-6
The full and punctual payment by the Company of the principal of, premium,
if any, and interest on the Notes is fully and unconditionally guaranteed on a joint and several senior unsecured basis by each of the Guarantors. Reference is hereby made to the Indenture for a statement of the respective rights, limitations of
rights, duties and obligations thereunder of the Guarantors, the Trustee and the Holders.
14. |
Trustee Dealings with the Company |
Subject to certain limitations imposed by the Trust
Indenture Act, the Trustee under the Indenture, in its individual or any other capacity, may become the owner or pledgee of Notes and may otherwise deal with and collect obligations owed to it by the Company or its Affiliates and may make loans to,
accept deposits from, and perform services for the Company or its Affiliates, and may otherwise deal with the Company or its Affiliates, as if it were not the Trustee.
15. |
No Recourse Against Others |
Any past, present, or future director, officer, employee,
incorporator or stockholder, as such, of the Company, any Guarantors or the Trustee shall not have any liability for any obligations of the Company or any Guarantor under the Notes, the Indenture, the Subsidiary Guarantees or for any claim based on,
in respect of or by reason of such obligations or their creation. By accepting a Note, each Holder waives and releases all such liability. The waiver and release are part of the consideration for the issue of the Notes.
This Note shall not be valid until an authorized signatory of the
Trustee (or an authenticating agent) signs the certificate of authentication on the other side of this Note.
Customary abbreviations may be used in the name of a Holder or an
assignee, such as TEN COM (=tenants in common), TEN ENT (=tenants by the entireties), JT TEN (=joint tenants with rights of survivorship and not as tenants in common), CUST (=custodian), and U/G/M/A (=Uniform Gift to Minors Act).
18. |
CUSIP and ISIN Numbers |
Pursuant to a recommendation promulgated by the Committee on
Uniform Security Identification Procedures the Company has caused CUSIP and ISIN numbers to be printed on the Notes and has directed the Trustee to use CUSIP and ISIN numbers in notices of redemption as a convenience to Holders. No representation is
made as to the accuracy of such numbers either as printed on the Notes or as contained in any notice of redemption and reliance may be placed only on the other identification numbers placed thereon.
THE LAWS OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED TO CONSTRUE
THIS NOTE.
A-7
The Company shall furnish to any Holder upon written request and without charge to the Holder a
copy of the Indenture. Requests may be made to:
AutoNation, Inc.
200 SW 1st Ave
Fort Lauderdale, FL 33301
Attention: Legal Department
Facsimile No.: 954-769-6340
A-8
ASSIGNMENT FORM
To assign this Note, fill in the form below:
(I) or (we)
assign and transfer this Note to
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(Insert assignees soc. sec. or tax I.D. No.) |
and irrevocably, appoint
agent to transfer this Note on the books of the Company. The agent may substitute another to act for him.
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Date: |
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Your Signature: |
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(Sign exactly as your name appears on the other side of this Note.) |
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Signature |
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Signature Guarantee: |
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Signature must be guaranteed |
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(Signatures must be guaranteed by a participant in a recognized Signature Medallion Program or other signature
guarantor program reasonably acceptable to the Trustee.)
A-9
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Company pursuant to Section 4.01 of the Supplemental Indenture check the
box: ¨
If you want to elect to have only part of this Note purchased by the
Company pursuant to Section 4.01 of the Supplemental Indenture, state the amount you elect to have purchased: $
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Dated: |
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Your Signature: |
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(Sign exactly as your name appears
on the other side of this Note.) |
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Signature Guarantee: |
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(Signature must be guaranteed) |
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(Signatures must be guaranteed by a participant in a recognized Signature Medallion Program or other signature
guarantor program reasonably acceptable to the Trustee.)
A-10
[TO BE ATTACHED TO GLOBAL NOTES]
SCHEDULE OF EXCHANGES OR INTERESTS IN GLOBAL NOTE
The following increases or decreases in this Global Note have been made:
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Date of
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Amount of
decrease in Principal
amount of this Global Note |
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Amount of
increase in Principal
amount of this Global Note |
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Principal amount
of this Global Note
following such decrease or
increase |
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Signature of
authorized signatory
of Trustee or Custodian |
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A-11
EXHIBIT B
FORM OF GUARANTEE
For
value received, each Guarantor (which term includes any successor Person under the Indenture), jointly and severally, unconditionally guarantees, to the extent set forth in and subject to the provisions in the Indenture, dated as of April 14,
2010 (the Base Indenture), as supplemented by that Supplemental Indenture dated as of September 21, 2015 (the Supplemental Indenture and together with the Base Indenture, the Indenture), among AutoNation,
Inc., as issuer (the Company), the Guarantors from time to time party thereto and Wells Fargo Bank, National Association, as trustee (the Trustee), (a) the full and punctual payment of the principal of and interest on
the Notes when due, whether at maturity, by acceleration, redemption or otherwise, and all other monetary obligations of the Company under the Indenture and the Notes and (b) the full and punctual performance within applicable grace periods of
all other obligations of the Company under the Indenture and the Notes (all the foregoing being hereinafter collectively called the Guaranteed Obligations). Each Guarantor further agrees that the Guaranteed Obligations may be extended or
renewed, in whole or in part, without notice or further assent from such Guarantor and that such Guarantor shall remain bound hereunder notwithstanding any extension or renewal of any Guaranteed Obligation.
The obligations of the Guarantors to the Holders of Notes and to the Trustee pursuant to the Guarantee and the Indenture are expressly set
forth in Article IX of the Supplemental Indenture and reference is hereby made such provisions for the precise terms of the Guarantee. Each Holder, by accepting the same agrees to and shall be bound by such provisions. This Guarantee is subject to
release as and to the extent set forth in Sections 7.02, 7.08 and 9.04 of the Supplemental Indenture. The terms of the Indenture, including, without limitation, Article IX of the Supplemental Indenture, are incorporated herein by reference. The laws
of the State of New York shall govern and be used to construe this Guarantee. Capitalized terms used herein and not defined are used herein as so defined in the Indenture.
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[GUARANTOR] |
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By: |
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B-1
EXHIBIT C
FORM OF SUPPLEMENTAL INDENTURE
SUPPLEMENTAL INDENTURE (this Supplemental Indenture), dated as of
, among AutoNation, Inc., a Delaware corporation (the Company),
(the Guaranteeing Subsidiary), a subsidiary of AutoNation, Inc. (or its permitted successor) and Wells Fargo
Bank, National Association, as trustee under the indenture referred to below (the Trustee).
W I T N E S S E T H
WHEREAS, the Company and the Guarantors named therein have heretofore executed and delivered to the Trustee the Indenture, dated as of
April 14, 2010 (the Base Indenture), as supplemented by that Supplemental Indenture dated as of September 21, 2015 (the Supplemental Indenture and, together with the Base Indenture, the Indenture),
providing for the issuance of 3.350% Senior Notes due 2021 (the Notes);
WHEREAS, the Indenture provides that the Guaranteeing
Subsidiary shall execute and deliver to the Trustee a supplemental indenture pursuant to which the Guaranteeing Subsidiary shall unconditionally guarantee all of the Companys obligations under the Notes and the Indenture on the terms and
conditions set forth herein (the Guarantee); and
WHEREAS, pursuant to Section 8.01 of the Supplemental Indenture, the
Trustee is authorized to execute and deliver this Supplemental Indenture.
NOW THEREFORE, in consideration of the foregoing and for other
good and valuable consideration, the receipt of which is hereby acknowledged, the Company, the Guaranteeing Subsidiary and the Trustee mutually covenant and agree for the equal and ratable benefit of the Holders of the Notes as follows:
1. Capitalized Terms. Capitalized terms used herein without definition shall have the meanings assigned to them in the Indenture.
2. Agreement to Guarantee. The Guaranteeing Subsidiary hereby agrees as follows:
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(a) |
To jointly and severally Guarantee to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of the Indenture,
the Notes or the obligations of the Company hereunder or thereunder, that: |
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(i) |
the principal of and interest on the Notes shall be promptly paid by the Company in full when due, whether at maturity, by acceleration, redemption or otherwise, and interest on the overdue principal of and interest on
the Notes, if any, if lawful, and all other obligations of the Company to the Holders or the Trustee hereunder or thereunder shall be promptly paid by the Company in full or performed by the Company, all in accordance with the terms hereof and
thereof; and |
C-1
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(ii) |
in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that same shall be promptly paid by the Company in full when due or performed by the Company in accordance with the
terms of the extension or renewal, whether at stated maturity, by acceleration or otherwise. Failing payment when due by the Company of any amount so guaranteed or any performance so guaranteed which failure continues for three days after demand
therefor is made to the Company for whatever reason, the Guarantors shall be jointly and severally obligated to pay the same immediately. Each Guarantor agrees that this is a guarantee of payment and not a guarantee of collection. |
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(b) |
The obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or the Indenture, the absence of any action to enforce the same, any waiver or consent by any
Holder of the Notes with respect to any provisions hereof or thereof, the recovery of any judgment against the Company, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or
defense of a Guarantor. |
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(c) |
The following is hereby waived: diligence, presentment, demand of payment (except as specifically provided in (a) above), filing of claims with a court in the event of insolvency or bankruptcy of the Company, any
right to require a proceeding first against the Company, protest, notice and all demands (except as specifically provided in (a) above) whatsoever. |
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(d) |
This Guarantee shall not be discharged except (i) by complete performance of the obligations contained in the Notes and the Indenture. Each Guarantor also expressly waives, without any requirement of any notice to
or further assent by such Guarantor, to the fullest extent permitted by applicable law, the benefit of all principles or provisions of applicable law which are or might be in conflict with the terms hereof, including, without limitation,
Section 10-7-23 and Section 10-7-24 of the Official Code of Georgia Annotated. |
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(e) |
If any Holder or the Trustee is required by any court or otherwise to return to the Company, the Guarantors, or any Custodian, Trustee, liquidator or other similar official acting in relation to either the Company or
the Guarantors, any amount paid by either to the Trustee or such Holder, this Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect. |
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(f) |
The Guaranteeing Subsidiary shall not be entitled to any right of subrogation in relation to the Holders in respect of any obligations guaranteed hereby until payment in full of all obligations guaranteed hereby.
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(g) |
As between the Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the obligations guaranteed
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hereby may be accelerated as provided in Article VII of the Base Indenture for the purposes of this Guarantee, notwithstanding any stay, injunction or other prohibition preventing such
acceleration in respect of the obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such obligations as provided in Article VII of the Base Indenture, such obligations (whether or not due and payable) shall
forthwith become due and payable by the Guarantors for the purpose of this Guarantee, failing payment when due by the Company which failure continues for three days after demand therefor is made to the Company. |
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(h) |
The Guarantors shall have the right to seek contribution from any non-paying Guarantor so long as the exercise of such right does not impair the rights of the Holders under the Guarantee. |
3. Guaranteeing Subsidiary May Consolidate, Etc. on Certain Terms. Each Guaranteeing Subsidiary agrees that, unless its Guarantee is
being concurrently released in conformity with Section 9.04 of the Supplemental Indenture, it may not consolidate with or merge with or into any Person other than the Company or any other Guarantor unless (a) the Guaranteeing Subsidiary
will be the surviving corporation or the Person formed by or surviving any such consolidation or merger (if other than the Guarantor) is a corporation organized and existing under the laws of the United States of America, any State thereof or the
District of Columbia and such Person assumes by supplemental indenture all of the obligations of the Guaranteeing Subsidiary on its Guarantee and (b) immediately after giving effect to such transaction, no Default or Event of Default shall have
occurred and be continuing.
4. Execution and Delivery. Each Guaranteeing Subsidiary agrees that the Guarantees shall remain in
full force and effect notwithstanding any failure to endorse on each Note a notation of such Guarantee.
5. Releases. The Guarantee
of the Guaranteeing Subsidiary shall be released in accordance with the provisions set forth in the Indenture, including, without limitation, Section 9.04 of the Supplemental Indenture. The Trustee, at the expense and written direction of the
Company, will execute proper instruments acknowledging the termination of such Subsidiary Guarantee as reasonably required by the representative of such Guarantor. Any Guarantor not released from its obligations under its Guarantee shall remain
liable for the full amount of principal of and interest on the Notes and for the other obligations of any Guarantor under the Indenture as provided in Article IX of the Supplemental Indenture.
6. No Recourse Against Others. No director, officer, employee, incorporator, stockholder or agent of the Guaranteeing Subsidiary, as
such, shall have any liability for any obligations of the Company or any Guaranteeing Subsidiary under the Notes, the Indenture, any Guarantees or this Supplemental Indenture or for any claim based on, in respect of, or by reason of, such
obligations or their creation. Each Holder of Notes by accepting a Note waives and releases all such liability. The waiver and release are part of the consideration for issuance of the Notes. Such waiver may not be effective to waive liabilities
under the federal securities laws.
7. NEW YORK LAW TO GOVERN. THE INTERNAL LAW OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED
TO CONSTRUE THIS SUPPLEMENTAL INDENTURE.
8. WAIVER OF JURY TRIAL. THE COMPANY, THE GUARANTEEING SUBSIDIARY AND THE TRUSTEE EACH
HEREBY IRREVOCABLE WAIVES, TO THE FULLEST
C-3
EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY SUIT, ACTION, OR OTHER PROCEEDING ARISING OUT OF OR RELATING TO THIS SUPPLEMENTAL INDENTURE,
THE GUARANTEE OF THE GUARANTEEING SUBSIDIARY OR THE TRANSACTIONS CONTEMPLATED HEREBY.
9. Counterparts. The parties may sign any
number of copies of this Supplemental Indenture. Each signed copy shall be an original, but all of them together represent the same agreement. The exchange of copies of this Supplemental Indenture and of signature pages by facsimile or PDF
transmission shall constitute effective execution and delivery of this Supplemental Indenture as to the parties hereto and may be used in lieu of the original Supplemental Indenture for all purposes. Signatures of the parties hereto transmitted by
facsimile or PDF shall be deemed to be their original signatures for all purposes.
10. Effect of Headings. The Section headings
herein are for convenience only and shall not affect the construction hereof.
11. The Trustee. The Trustee shall not be
responsible in any manner whatsoever for or in respect of the validity, legality or sufficiency of this Supplemental Indenture or for or in respect of the recitals contained herein, all of which recitals are made solely by the Guaranteeing
Subsidiary and the Company.
C-4
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly
executed and attested, all as of the date first above written.
Dated:
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[GUARANTEEING SUBSIDIARY] |
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By: |
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Name: |
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Title: |
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AUTONATION, INC. |
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By: |
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Name: |
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Title: |
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WELLS FARGO BANK, National Association, as Trustee |
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By: |
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Name: |
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Title |
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C-5
EXHIBIT D
FORM OF AFFIDAVIT OF OUT-OF-STATE EXECUTION
STATE OF NEW YORK
COUNTY OF NEW YORK
I hereby certify that on this day of ,
, before me, an officer duly authorized in the County and State aforesaid to take acknowledgments, personally appeared [Name], as [Title] of AutoNation, Inc., a Delaware
corporation (the Company), and as [Title] or authorized signatory of each of the subsidiaries of the Company party to the hereinafter defined Indenture (the Guarantors), who is personally known to me or who has produced
as identification, who did/did not take an oath, who is known to me to be the person who executed the Supplemental
Indenture, dated as of September 21, 2015 (the Supplemental Indenture), by and among the Company, the Guarantors and Wells Fargo Bank, National Association., as trustee (the Trustee), to which this Affidavit is attached
on behalf of the Company and on behalf of each of the Guarantors in New York, New York, and who acknowledged before me that be executed the same. As used herein, Indenture has the meaning set forth in the Supplemental Indenture.
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Notary Public |
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Print Name |
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D-1
EXHIBIT E
FORM OF AFFIDAVIT OF OUT OF STATE RECEIPT AND ACCEPTANCE
STATE OF NEW YORK)
COUNTY OF NEW YORK)
Before me this day personally appeared
(Affiant), who being personally sworn, deposes and says that:
1. Affiant is a [Title] of Wells Fargo Bank, National Association, as trustee (the Trustee) under the Indenture, dated as of
April 14, 2010 (the Base Indenture), as supplemented by that Supplemental Indenture, dated as of September 21, 2015 (the Supplemental Indenture and, together with the Base Indenture, the Indenture), by
and among AutoNation, Inc., a Delaware corporation (the Company), the subsidiaries of the Company party thereto (the Guarantors) and the Trustee.
2. The Supplemental Indenture was executed in the City of New York, and the State of New York by [Name] as [Title] of the Company and as
[Title] or authorized signatory of each of the Guarantors.
3. On the date hereof, Affiant received delivery of and accepted the
Supplemental Indenture on behalf of the Trustee and on behalf of the Underwriters within the City of New York, and the State of New York.
FURTHER AFFIANT
SAYETH NOT.
Dated: ,
20
E-1
THE FOREGOING instrument was acknowledged before me this day of
, , by
, who is personally known to me or who has produced
as identification and who did/did not take an oath.
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Notary Public |
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My Commission Expires: |
This should be included only if the Note is issued in global form.
E-2
Schedule I
Guarantors
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7 Rod Real Estate North, a Limited Liability Company |
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7 Rod Real Estate South, a Limited Liability Company |
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Abraham Chevrolet-Miami, Inc. |
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Abraham Chevrolet-Tampa, Inc. |
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ACER Fiduciary, Inc. |
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AL F-L Motors, LLC |
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Albert Berry Motors, Inc. |
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Allison Bavarian |
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Allison Bavarian Holding, LLC |
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All-State Rent A Car, Inc. |
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American Way Motors, Inc. |
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AN Cadillac of WPB, LLC |
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AN Central Region Management, LLC |
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AN Chevrolet - Arrowhead, Inc. |
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AN CJ Valencia, Inc. |
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AN Collision Center FTL South, Inc. |
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AN Collision Center of Addison, Inc. |
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AN Collision Center of Las Vegas, Inc. |
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AN Collision Center of North Houston, Inc. |
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AN Collision Center of Sarasota, Inc. |
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AN Collision Center of Tempe, Inc. |
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AN Corporate Management Payroll Corp. |
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AN Corpus Christi GP, LLC |
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AN Corpus Christi Imports Adv. GP, LLC |
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AN Corpus Christi Imports Adv., LP |
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AN Corpus Christi Imports GP, LLC |
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AN Corpus Christi Imports II GP, LLC |
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AN Corpus Christi Imports II, LP |
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AN Corpus Christi Imports, LP |
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AN Corpus Christi Motors, Inc. |
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AN Corpus Christi T. Imports GP, LLC |
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AN Corpus Christi T. Imports, LP |
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AN County Line Ford, Inc. |
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AN Dealership Holding Corp. |
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AN F. Imports of Atlanta, LLC |
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AN F. Imports of Hawthorne Holding, LLC |
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AN F. Imports of Hawthorne, LLC |
AN F. Imports of North Denver, LLC
AN F. Imports of North Phoenix, Inc.
AN F. Imports of Roseville
Holding, LLC
AN F. Imports of Roseville, Inc.
AN Florida
Region Management, LLC
AN Fort Myers Imports, LLC
AN
Fremont Luxury Imports, Inc.
AN H. Imports of Atlanta, LLC
AN Imports of Ft. Lauderdale, Inc.
AN Imports of Seattle, Inc.
AN Imports of Spokane, Inc.
AN Imports of Stevens Creek
Holding, LLC
AN Imports of Stevens Creek, Inc.
AN Imports
on Weston Road, Inc.
AN Luxury Imports GP, LLC
AN Luxury
Imports Holding, LLC
AN Luxury Imports of Coconut Creek, Inc.
AN Luxury Imports of Marietta, LLC
AN Luxury Imports of Palm
Beach, Inc.
AN Luxury Imports of Pembroke Pines, Inc.
AN
Luxury Imports of Phoenix, Inc.
AN Luxury Imports of San Diego, Inc.
AN Luxury Imports of Sanford, LLC
AN Luxury Imports of Sarasota,
Inc.
AN Luxury Imports of Spokane, Inc.
AN Luxury Imports
of Tucson, Inc.
AN Luxury Imports, Ltd.
AN Motors of
Brooksville, Inc.
AN Motors of Dallas, Inc.
AN Motors of
Delray Beach, Inc.
AN Motors of Englewood, Inc.
AN Motors
of Ft. Lauderdale, Inc.
AN Motors of Memphis, Inc.
AN
Motors of Pembroke, LLC
AN Motors of Scottsdale, LLC
AN
Motors on Federal Highway, LLC
AN Motors on South Padre, Ltd.
AN Pontiac GMC Houston North GP, LLC
AN Pontiac GMC Houston
North, LP
AN San Jose Luxury Imports Holdings, LLC
AN San
Jose Luxury Imports, Inc.
AN Seattle Motors, Inc.
AN Subaru Motors, Inc.
AN T. Imports of Atlanta, LLC
AN Texas Region Management, Ltd.
AN Tucson Imports, LLC
AN Valencia Auto Imports, Inc.
AN West Central Region
Management, LLC
AN Western Region Management, LLC
AN/CF
Acquisition Corp.
AN/GMF, Inc.
AN/KPBG Motors, Inc.
AN/MF Acquisition Corp
AN/MNI Acquisition Corp.
AN/PF Acquisition Corp.
Anderson Chevrolet
Anderson Chevrolet Los Gatos, Inc.
Anderson Cupertino, Inc.
Appleway Chevrolet, Inc.
Atrium Restaurants, Inc.
Auto Ad Agency, Inc.
Auto Car Holding, LLC
Auto Car, Inc.
Auto Company IX, Inc.
Auto Company VI, Inc.
Auto Company VII, Inc.
Auto Company VIII, Inc.
Auto Company X, Inc.
Auto Company XI, Inc.
Auto Company XII, Inc.
Auto Company XIII, Inc.
Auto Company XIV, Inc.
Auto Company XIX, Inc.
Auto Company XL, Inc.
Auto Company XLI, Inc.
Auto Company XLII, Inc.
Auto Company XLIII, Inc.
Auto Company XLIV, Inc.
Auto Company XLV, Inc.
Auto Company XVII, Inc.
Auto Company XVIII, Inc.
Auto Company XXI, Inc.
Auto Company XXII, Inc.
Auto Company XXIII, Inc.
Auto Company XXIV, Inc.
Auto Company XXIX, Inc.
Auto Company XXV, Inc.
Auto Company XXVI, Inc.
Auto Company XXVII, Inc.
Auto Company XXVIII, Inc.
Auto Company XXX, Inc.
Auto Company XXXI, Inc.
Auto Company XXXII, Inc.
Auto Company XXXIII, Inc.
Auto Company XXXIV, Inc.
Auto Company XXXIX, Inc.
Auto Company XXXV, Inc.
Auto Company XXXVI, Inc.
Auto Company XXXVII, Inc.
Auto Company XXXVIII, Inc.
Auto Dealership III, LLC
Auto Dealership IV, LLC
Auto Dealership IX, LLC
Auto Dealership V, LLC
Auto Dealership VI, LLC
Auto Dealership VII, LLC
Auto Dealership VIII, LLC
Auto Dealership X, LLC
Auto Dealership XIX, LLC
Auto Dealership XX, LLC
Auto Dealership XXI, LLC
Auto Dealership XXII, LLC
Auto Dealership XXIII, LLC
Auto Dealership XXIV, LLC
Auto Dealership XXIX, LLC
Auto Dealership XXV, LLC
Auto Dealership XXVI, LLC
Auto Dealership XXVII, LLC
Auto Dealership XXVIII, LLC
Auto Dealership XXX, LLC
Auto Holding, LLC
Auto Mission Holding, LLC
Auto Mission Ltd.
Auto West, Inc.
Autohaus Holding, Inc.
AutoNation Benefits Company, Inc.
AutoNation Corporate Management, LLC
AutoNation Direct Nevada,
Inc.
AutoNation Enterprises Incorporated
AutoNation
Financial Services, LLC
AutoNation Fort Worth Motors, Ltd.
AutoNation GM GP, LLC
AutoNation Holding Corp.
AutoNation Imports of Katy GP, LLC
AutoNation Imports of Katy,
L.P.
AutoNation Imports of Lithia Springs, LLC
AutoNation
Imports of Longwood, Inc.
AutoNation Imports of Palm Beach, Inc.
AutoNation Imports of Winter Park, Inc.
AutoNation Motors
Holding Corp.
AutoNation Motors of Lithia Springs, Inc.
AutoNation North Texas Management GP, LLC
AutoNation Northwest
Management, LLC
AutoNation Orlando Venture Holdings, Inc.
AutoNation Realty Corporation
AutoNation USA of Perrine, Inc.
AutoNation V. Imports of Delray Beach, LLC
AutoNation.com,
Inc.
Bankston Auto, Inc.
Bankston Chrysler Jeep of Frisco,
L.P.
Bankston CJ GP, LLC
Bankston Ford of Frisco, Ltd. Co.
Bankston Nissan in Irving, Inc.
Bankston Nissan Lewisville
GP, LLC
Bankston Nissan Lewisville, Ltd.
Bargain Rent-A-Car
Batfish, LLC
BBCSS, Inc.
Beach City Chevrolet Company, Inc.
Beach City Holding, LLC
Beacon Motors, Inc.
Bell Motors, LLC
Bellevue Automotive, Inc.
Bengal Motor Company, Ltd.
Bengal Motors, Inc.
Bill Ayares Chevrolet, LLC
Bledsoe Dodge, LLC
Bob Townsend Ford, Inc.
Body Shop Holding Corp.
BOSC Automotive Realty, Inc.
Brown & Brown Chevrolet -
Superstition Springs, LLC
Brown & Brown Chevrolet, Inc.
Brown & Brown Nissan Mesa, LLC
Brown & Brown
Nissan, Inc.
Buick Mart Limited Partnership
Bull Motors,
LLC
C. Garrett, Inc.
Carlisle Motors, LLC
Carwell Holding, LLC
Carwell, LLC
Centennial Automotive, LLC
Cerritos Body Works Holding, LLC
Cerritos Body Works, Inc.
Champion Chevrolet Holding, LLC
Champion Chevrolet, LLC
Champion Ford, Inc.
Charlie Hillard, Inc.
Charlie Thomas Chevrolet GP, LLC
Charlie Thomas Chevrolet, Ltd.
Charlie Thomas Chrysler-Plymouth,
Inc.
Charlie Thomas Courtesy GP, LLC
Charlie Thomas
Courtesy Leasing, Inc.
Charlie Thomas F. GP, LLC
Charlie
Thomas Ford, Ltd.
Charlie Thomas` Courtesy Ford, Ltd.
Chesrown Auto, LLC
Chesrown Chevrolet, LLC
Chesrown Collision Center, Inc.
Chesrown Ford, Inc.
Chevrolet World, Inc.
Chuck Clancy Ford of Marietta, LLC
CJ Valencia Holding, LLC
Coastal Cadillac, Inc.
Consumer Car Care Corporation
Contemporary Cars, Inc.
Cook-Whitehead Ford, Inc.
Corporate Properties Holding, Inc.
Corpus Christi Collision
Center, Inc.
Costa Mesa Cars Holding, LLC
Costa Mesa Cars,
Inc.
Courtesy Auto Group, Inc.
Courtesy Broadway, LLC
Covington Pike Motors, Inc.
CT Intercontinental GP, LLC
CT Intercontinental, Ltd.
CT Motors, Inc.
D/L Motor Company
Deal Dodge of Des Plaines, Inc.
Dealership Properties, Inc.
Dealership Realty Corporation
Desert Buick-GMC Trucks, L.L.C.
Desert Chrysler-Plymouth, Inc.
Desert Dodge, Inc.
Desert GMC, L.L.C.
Dobbs Ford of Memphis, Inc.
Dobbs Ford, Inc.
Dobbs Mobile Bay, Inc.
Dobbs Motors of Arizona, Inc.
Don Mealey Chevrolet, Inc.
Don Mealey Imports, Inc.
Don-A-Vee Jeep Eagle, Inc.
Driver`s Mart Worldwide, Inc.
Eastgate Ford, Inc.
Ed Mullinax Ford, LLC
Edgren Motor Company, Inc.
Edgren Motor Holding, LLC
El Monte Imports Holding, LLC
El Monte Imports, Inc.
El Monte Motors Holding, LLC
El Monte Motors, Inc.
Emich Subaru West, LLC
Empire Services Agency, Inc.
Financial Services GP, LLC
Financial Services, Ltd.
First Team Automotive Corp.
First Team Ford of Manatee, Ltd.
First Team Ford, Ltd
First Team Jeep Eagle, Chrysler-Plymouth, Ltd.
First Team
Management, Inc.
Fit Kit Holding, LLC
Fit Kit, Inc.
Florida Auto Corp.
Ford of Kirkland, Inc.
Fox Chevrolet, LLC
Fox Motors, LLC
Fred Oakley Motors, Inc.
Fremont Luxury Imports Holding, LLC
Ft. Lauderdale Nissan, Inc.
G.B. Import Sales &
Service Holding, LLC
G.B. Import Sales & Service, LLC
GA CDJR Motors, LLC
GA Columbus Imports, LLC
GA F Imports, LLC
GA H Imports, LLC
GA HY Imports, LLC
Gene Evans Ford, LLC
George Sutherlin Nissan, LLC
Government Boulevard Motors, Inc.
Gulf Management, Inc.
Hayward Dodge, Inc.
Hillard Auto Group, Inc.
Hollywood Imports Limited, Inc.
Hollywood Kia, Inc.
Horizon Chevrolet, Inc.
House of Imports Holding, LLC
House of Imports, Inc.
Houston Auto M. Imports Greenway, Ltd.
Houston Auto M. Imports
North, Ltd.
Houston Imports Greenway GP, LLC
Houston
Imports North GP, LLC
HV Collision, LLC
HVA Imports, LLC
HVM Imports, LLC
HVS Motors, LLC
HVVW Motors, LLC
Irvine Imports Holding, LLC
Irvine Imports, Inc.
Irvine Toyota/Nissan/Volvo Limited Partnership
Jemautco, Inc.
Jerry Gleason Chevrolet, Inc.
Jerry Gleason Dodge, Inc.
Jim Quinlan Chevrolet Co.
Joe MacPherson Ford
Joe MacPherson Imports No. I
Joe MacPherson Infiniti
Joe MacPherson Infiniti Holding, LLC
Joe MacPherson Oldsmobile
John M. Lance Ford, LLC
J-R Advertising Company
J-R Motors Company North
J-R Motors Company South
JRJ Investments, Inc.
Kenyon Dodge, Inc.
Kings Crown Ford, Inc.
Kirkland Motors, Inc.
L.P. Evans Motors WPB, Inc.
L.P. Evans Motors, Inc.
Lance Children, Inc.
Leesburg Imports, LLC
Leesburg Motors, LLC
Les Marks Chevrolet, Inc.
Lew Webbs Ford, Inc.
Lew Webbs Irvine Nissan Holding, LLC
Lew Webbs
Irvine Nissan, Inc.
Lewisville Imports GP, LLC
Lewisville
Imports, Ltd.
Lot 4 Real Estate Holdings, LLC
Luxury
Orlando Imports, Inc.
MacHoward Leasing
MacHoward Leasing
Holding, LLC
MacPherson Enterprises, Inc.
Magic Acquisition
Corp.
Magic Acquisition Holding, LLC
Maitland Luxury
Imports, Inc.
Marks Family Dealerships, Inc.
Marks
Transport, Inc.
MC/RII, LLC
Mealey Holdings, Inc.
Metro Chrysler Jeep, Inc.
Midway Chevrolet, Inc.
Mike Hall Chevrolet, Inc.
Mike Shad Chrysler Plymouth Jeep Eagle, Inc.
Mike Shad Ford,
Inc.
Miller-Sutherlin Automotive, LLC
Mission Blvd. Motors,
Inc.
Mr. Wheels Holding, LLC
Mr. Wheels, Inc.
Mullinax East, LLC
Mullinax Ford North Canton, Inc.
Mullinax Ford South, Inc.
Mullinax Lincoln-Mercury, Inc.
Mullinax Used Cars, Inc.
Naperville Imports, Inc.
Newport Beach Cars Holding, LLC
Newport Beach Cars, LLC
Nichols Ford, Ltd.
Nichols GP, LLC
Nissan of Brandon, Inc.
Northpoint Chevrolet, LLC
Northwest Financial Group, Inc.
Ontario Dodge, Inc.
Oxnard Venture Holdings, Inc.
Payton-Wright Ford Sales, Inc.
Pembroke Motors, Inc.
Peyton Cramer Automotive
Peyton Cramer Automotive Holding, LLC
Peyton Cramer F. Holding,
LLC
Peyton Cramer Ford
Peyton Cramer Infiniti
Peyton Cramer Infiniti Holding, LLC
Peyton Cramer Jaguar
Peyton Cramer Lincoln-Mercury
Peyton Cramer LM Holding, LLC
Pierce Automotive Corporation
Pierce, LLC
Pitre Chrysler-Plymouth-Jeep of Scottsdale, Inc.
Plains
Chevrolet GP, LLC
Plains Chevrolet, Ltd.
PMWQ, Inc.
PMWQ, Ltd.
Port
City Imports, Inc.
Prime Auto Resources, Inc.
Quality
Nissan GP, LLC
Quality Nissan, Ltd.
Quinlan Motors, Inc.
R. Coop Limited
R.L. Buscher II, Inc.
R.L. Buscher III, Inc.
Real Estate Holdings, Inc.
Renton H Imports, Inc.
Republic DM Property Acquisition Corp.
Republic Resources Company
Republic Risk Management
Services, Inc.
Resources Aviation, Inc.
RI Merger Corp.
RI/BB Acquisition Corp.
RI/BBNM Acquisition Corp.
RI/BRC Real Estate Corp.
RI/DM Acquisition Corp.
RI/Hollywood Nissan Acquisition Corp.
RI/LLC Acquisition Corp.
RI/RMC Acquisition GP, LLC
RI/RMC Acquisition, Ltd.
RI/RMP Acquisition Corp.
RI/RMT Acquisition GP, LLC
RI/RMT Acquisition, Ltd.
RI/WFI Acquisition Corporation
RKR Motors, Inc.
Roseville Motor Corporation
Roseville Motor Holding, LLC
Sahara Imports, Inc.
Sahara Nissan, Inc.
Saul Chevrolet Holding, LLC
SCM Realty, Inc.
Shamrock F. Holding, LLC
Shamrock Ford, Inc.
Six Jays LLC
SMI Motors Holding, LLC
SMI Motors, Inc.
South Broadway Motors, LLC
Southwest Motors of Denver, LLC
Spitfire Properties, Inc.
Star Motors, LLC
Steakley Chevrolet GP, LLC
Steakley Chevrolet, Ltd.
Steeplechase Motor Company
Steve Moore Chevrolet Delray, LLC
Steve Moore Chevrolet, LLC
Steve Moores Buy-Right
Auto Center, Inc.
Stevens Creek Holding, LLC
Stevens Creek
Luxury Imports Holding, LLC
Stevens Creek Luxury Imports, Inc.
Stevens Creek Motors, Inc.
Sunrise Nissan of Jacksonville, Inc.
Sunrise Nissan of Orange Park, Inc.
Sunset Pontiac-GMC
Truck South, Inc.
Sunset Pontiac-GMC, Inc.
Superior Nissan,
Inc.
Sutherlin Chrysler-Plymouth Jeep-Eagle, LLC
Sutherlin
H. Imports, LLC
Sutherlin Imports, LLC
Sutherlin Nissan,
LLC
Sutherlin Town Center, Inc.
Tartan Advertising, Inc.
Tasha Incorporated
Terry York Motor Cars Holding, LLC
Terry York Motor Cars, Ltd.
Texan Ford Sales, Ltd.
Texan Ford, Inc.
Texan Sales GP, LLC
Texas Management Companies LP, LLC
The Consulting Source, Inc.
The Pierce Corporation II, Inc.
Tinley Park A. Imports,
Inc.
Tinley Park J. Imports, Inc.
Tinley Park V. Imports,
Inc.
TN CDJR Motors, LLC
TN F Imports, LLC
Torrance Nissan Holding, LLC
Torrance Nissan, LLC
Tousley Ford, Inc.
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Toyota Cerritos Limited Partnership |
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Triangle Corporation |
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T-West Sales & Service, Inc. |
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Valencia Auto Imports Holding, LLC |
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Valencia B. Imports Holding, LLC |
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Valencia B. Imports, Inc. |
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Valencia Dodge |
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Valencia Dodge Holding, LLC |
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Valencia H. Imports Holding, LLC |
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Valencia H. Imports, Inc. |
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Valley Chevrolet, LLC |
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Vanderbeek Motors Holding, LLC |
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Vanderbeek Motors, Inc. |
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Vanderbeek Olds/GMC Truck, Inc. |
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Vanderbeek Truck Holding, LLC |
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Village Motors, LLC |
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Vince Wiese Chevrolet, Inc. |
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Vince Wiese Holding, LLC |
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W.O. Bankston Nissan, Inc. |
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Wallace Dodge, LLC |
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Wallace Ford, LLC |
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Wallace Lincoln-Mercury, LLC |
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Wallace Nissan, LLC |
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Webb Automotive Group, Inc. |
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West Colorado Motors, LLC |
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West Colton Cars, Inc. |
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West Side Motors, Inc. |
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Westgate Chevrolet GP, LLC |
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Westgate Chevrolet, Ltd. |
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Westmont A. Imports, Inc. |
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Westmont B. Imports, Inc. |
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Westmont M. Imports, Inc. |
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Woody Capital Investment Company II |
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Woody Capital Investment Company III |
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Working Mans Credit Plan, Inc. |
Exhibit 4.3
AutoNation, Inc., as Issuer
The Guarantors Party Hereto, as Guarantors
and
Wells Fargo Bank,
National Association, as Trustee
Supplemental Indenture
Dated as of September 21, 2015
to Indenture
Dated as of
April 14, 2010
Establishing a series of Securities designated
4.500% Senior Notes due 2025
TABLE OF CONTENTS
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Page |
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ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE |
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SECTION 1.01 |
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Relation to Base Indenture |
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1 |
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SECTION 1.02 |
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Definitions |
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1 |
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ARTICLE II
CREATION, FORMS, TERMS AND CONDITIONS OF THE SECURITIES |
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SECTION 2.01 |
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Creation of the Notes |
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10 |
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SECTION 2.02 |
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Form of the Notes |
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10 |
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SECTION 2.03 |
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Terms and Conditions of the Notes |
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11 |
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SECTION 2.04 |
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Ranking |
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15 |
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SECTION 2.05 |
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Sinking Fund |
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15 |
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SECTION 2.06 |
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Place of Payment |
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15 |
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SECTION 2.07 |
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Transfer and Exchange |
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15 |
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SECTION 2.08 |
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Cancellation and/or Adjustment of Global Notes |
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16 |
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ARTICLE III
REDEMPTION OF THE NOTES |
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SECTION 3.01 |
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Optional Redemption by Company |
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16 |
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ARTICLE IV
CHANGE OF CONTROL |
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SECTION 4.01 |
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Repurchase at the Option of Holders Upon Change of Control Repurchase Event |
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17 |
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ARTICLE V
COVENANTS |
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SECTION 5.01 |
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Limitation on Liens |
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18 |
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SECTION 5.02 |
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Limitations on Sale and Leaseback Transactions |
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21 |
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SECTION 5.03 |
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Limitation on Issuances of Guarantees of Indebtedness |
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21 |
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SECTION 5.04 |
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Merger, Consolidation or Sale of Assets |
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22 |
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SECTION 5.05 |
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Compliance Certificate |
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23 |
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ARTICLE VI
DEFAULTS AND REMEDIES |
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SECTION 6.01 |
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Events of Default |
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24 |
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ARTICLE VII |
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DEFEASANCE AND COVENANT DEFEASANCE; DISCHARGE |
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SECTION 7.01 |
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Option to Effect Legal Defeasance or Covenant Defeasance |
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25 |
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SECTION 7.02 |
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Defeasance and Discharge |
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25 |
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SECTION 7.03 |
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Covenant Defeasance |
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26 |
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SECTION 7.04 |
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Conditions to Defeasance or Covenant Defeasance |
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26 |
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Page |
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SECTION 7.05 |
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Deposited Money and U.S. Government Obligations to Be Held in Trust; Other Miscellaneous Provisions |
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27 |
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SECTION 7.06 |
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Repayment to the Company |
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28 |
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SECTION 7.07 |
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Reinstatement |
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28 |
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SECTION 7.08 |
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Discharge |
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28 |
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ARTICLE VIII
AMENDMENT, SUPPLEMENT AND WAIVER |
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SECTION 8.01 |
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Without Consent of Holders of Notes |
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29 |
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SECTION 8.02 |
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With Consent of Holders of Notes |
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30 |
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SECTION 8.03 |
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Revocation and Effect of Consents |
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31 |
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SECTION 8.04 |
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Notation on or Exchange of Notes |
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32 |
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SECTION 8.05 |
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Trustee to Sign Amendments, etc. |
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32 |
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ARTICLE IX
GUARANTEES |
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SECTION 9.01 |
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Guarantee |
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32 |
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SECTION 9.02 |
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Limitation on Guarantor Liability |
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33 |
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SECTION 9.03 |
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Execution and Delivery of Guarantee |
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33 |
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SECTION 9.04 |
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Release of Guarantor |
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34 |
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SECTION 9.05 |
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Acknowledgement of Manufacturers Letter Agreements |
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35 |
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SECTION 9.06 |
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Certain California Law Waivers |
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35 |
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ARTICLE X
MISCELLANEOUS PROVISIONS |
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SECTION 10.01 |
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Ratification of Base Indenture |
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36 |
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SECTION 10.02 |
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Conflict with Trust Indenture Act |
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36 |
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SECTION 10.03 |
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Conflict with Base Indenture |
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36 |
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SECTION 10.04 |
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Effect of Headings |
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36 |
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SECTION 10.05 |
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Successors and Assigns |
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36 |
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SECTION 10.06 |
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Separability Clause |
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36 |
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SECTION 10.07 |
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Governing Law |
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36 |
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SECTION 10.08 |
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Waiver of Jury Trial |
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36 |
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SECTION 10.09 |
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Counterparts |
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36 |
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EXHIBITS |
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EXHIBIT A |
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Form of Note |
EXHIBIT B |
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Form of Guarantee |
EXHIBIT C |
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Form of Supplemental Indenture Evidencing Future Guarantors |
EXHIBIT D |
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Form of Affidavit of Out-of-State Execution |
EXHIBIT E |
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Form of Affidavit of Out-of-State Receipt and Acceptance |
ii
SUPPLEMENTAL INDENTURE, dated as of September 21, 2015 (this Supplemental
Indenture), by and among AutoNation, Inc., a Delaware corporation (the Company), the Guarantors (as defined below), and Wells Fargo Bank, National Association, a national banking association, as trustee (the Trustee).
RECITALS OF THE COMPANY
WHEREAS, the Company and the Trustee have heretofore executed and delivered an Indenture, dated as of April 14, 2010 (the Base
Indenture and, together with this Supplemental Indenture, the Indenture), providing for the issuance from time to time of the Companys debentures, notes or other evidences of Indebtedness (herein and therein called the
Securities), to be issued in one or more series as provided in the Base Indenture;
WHEREAS, Section 14.01 of the Base
Indenture permits the Company and the Trustee to enter into a supplemental indenture to the Base Indenture to establish the form and terms of any series of Securities;
WHEREAS, Section 2.01 of the Base Indenture permits the form of Securities of any series to be established in a supplemental indenture to
the Base Indenture;
WHEREAS, Section 3.01 of the Base Indenture permits certain terms of any series of Securities to be established
pursuant to a supplemental indenture to the Base Indenture;
WHEREAS, pursuant to Sections 2.01 and 3.01 of the Base Indenture, the
Company desires to provide for the establishment of a new series of Securities in an initial aggregate principal amount of $450,000,000 to be designated the 4.500% Senior Notes due 2025 (hereinafter called the Notes) under
the Base Indenture, the form and substance of such Notes and the terms, provisions and conditions thereof to be set forth as provided in the Base Indenture and this Supplemental Indenture; and
WHEREAS, all things necessary to make this Supplemental Indenture a valid agreement of the Company and the Guarantors, in accordance with its
terms, have been done;
NOW, THEREFORE, for and in consideration of the foregoing and the purchase of the Notes established by this
Supplemental Indenture by the Holders (as defined below) thereof, it is mutually agreed, for the equal and proportionate benefit of all such Holders, as follows:
ARTICLE I
DEFINITIONS
AND INCORPORATION BY REFERENCE
SECTION 1.01 Relation to Base Indenture. This Supplemental Indenture constitutes a part of
the Base Indenture (the provisions of which, as modified by this Supplemental Indenture, shall apply to the Notes) in respect of the Notes but shall not modify, amend or otherwise affect the Base Indenture insofar as it relates to any other series
of Securities or modify, amend or otherwise affect in any manner the terms and conditions of the Securities of any other series.
SECTION 1.02 Definitions. For all purposes of this Supplemental Indenture, the capitalized terms used herein (i) which are
defined in this Section 1.02 have the respective meanings assigned hereto in this Section 1.02 and (ii) which are defined in the Base Indenture (and which are not defined in this Section 1.02) have the respective meanings
assigned thereto in the Base Indenture. For all purposes of this Supplemental Indenture:
(a) Unless otherwise indicated or the context
otherwise requires, any reference to an Article or Section refers to an Article or Section, as the case may be, of this Supplemental Indenture;
(b) The words herein, hereof and hereunder and words of
similar import refer to this Supplemental Indenture as a whole and not to any particular Article, Section or other subdivision;
(c)
Headings are for convenience or reference only and do not affect interpretations; and
(d) The terms defined in this Section 1.02(d)
have the meanings assigned to them in this Section and include the plural as well as the singular:
Affiliate means, as to any
Person, any other Person who, directly or indirectly, through one or more intermediaries, controls, or is controlled by, or is under common control with, the first referred to Person. The term control means the possession, directly or
indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract or otherwise.
Applicable Procedures has the meaning set forth in Section 2.07(a).
Attributable Debt means, with respect to any Sale and Leaseback Transaction, at the time of determination, the total obligation
(discounted to the present value at the imputed rate of interest as determined in good faith by the Company) of the lessee for rental payments (other than amounts required to be paid on account of taxes, assessments, maintenance, repairs, insurance,
water rates or similar charges required to be paid by such lessee thereunder and other items which do not constitute payments for property rights or any amount required to be paid by lessee thereunder contingent upon the amount of maintenance,
repairs, insurance, taxes, assessments, water charges or similar charges) during the remaining portion of the initial term of the lease included in such Sale and Leaseback Transaction. In the case of any lease which is terminable by the lessee upon
the payment of a penalty, such rental payments shall be the lesser of (x) the amount determined assuming termination upon the first date such lease may be terminated (in which case the amount shall also include the amount of the penalty, but
shall not include any rent that would be required to be paid under such lease subsequent to the first date upon which it may be so terminated) or (y) the amount determined assuming no such termination.
Automobile Retailing Activities means vehicle retailing, wholesaling, leasing, financing, servicing and related activities.
Bankruptcy Law means Title 11, United States Bankruptcy Code of 1978, or any similar United States federal or state law or foreign
law relating to the bankruptcy, insolvency, receivership, winding up, liquidation, reorganization or relief of debtors or any amendment to, succession to or change in any such law.
Base Indenture has the meaning given to such term in the recitals hereof.
Capital Lease Obligation of any Person means all monetary obligations of such Person and its Subsidiaries on a consolidated basis
under any capital lease of (or other agreement conveying the right to use) real or personal property which, in accordance with GAAP, is required to be recorded as a capitalized lease obligation.
2
Capital Stock of any Person means any and all shares, interests, participations,
rights in or other equivalents (however designated) of such Persons capital stock, other equity interests whether now outstanding or issued after the date of the Base Indenture, partnership interests (whether general or limited), limited
liability company interests, any other interest or participation that confers on a Person that right to receive a share of the profits and losses of, or distributions of assets of, the issuing Person, including any Preferred Stock, and any rights
(other than debt securities convertible into Capital Stock), warrants or options exchangeable for or convertible into such Capital Stock.
Change of Control shall occur if:
(1) any Person or group (as such terms are used in Sections 13(d)(3) and 14(d)(2) of the Exchange Act), is or becomes
the beneficial owner (as defined in Rules 13d-3 and 13d-5 under the Exchange Act, except that for purposes of this clause (1) such Person shall be deemed to have beneficial ownership of all shares that any such Person
has the right to acquire, whether such right is exercisable immediately or only after the passage of time), directly or indirectly, of more than 50% of the total outstanding Voting Stock of the Company;
(2) the Company consolidates with or merges with or into any Person, or any Person consolidates with or merges into or with the Company, in
any such event pursuant to a transaction in which the outstanding Voting Stock of the Company is converted into or exchanged for cash, securities or other property, other than any such transaction where the outstanding Voting Stock of the Company is
converted into or exchanged for Voting Stock of such surviving Person representing a majority of the voting power of all Voting Stock of such surviving Person immediately after giving effect to such issuance;
(3) the sale, lease, transfer, conveyance or other disposition (other than by way of merger or consolidation), in one or a series of related
transactions, of all or substantially all of the assets of the Company and its Subsidiaries taken as a whole to any Person or group (as such terms are used in Section 13(d) and 14(d) of the Exchange Act) other than to
the Company or one of the Companys Subsidiaries; or
(4) the Company is liquidated or dissolved or adopts a plan of liquidation or
dissolution other than in a transaction which complies with Section 5.04.
Change of Control Offer has the meanings set
forth in Section 4.01(b).
Change of Control Repurchase Event means the occurrence of both a Change of Control and a
Ratings Event.
Commodity Price Protection Agreement means any forward contract, commodity swap, commodity option or other
similar financial agreement or arrangement relating to, or the value which is dependent upon, fluctuations in commodity prices.
Company has the meaning given to such term in the preamble hereof.
Comparable Treasury Issue means the United States Treasury security selected by an Independent Investment Banker as having a
maturity comparable to the remaining term (as measured from the date of redemption) of the Notes that would be utilized, at the time of selection and in accordance with customary financial practice, in pricing new issues of corporate debt securities
of comparable maturity to the remaining term of the Notes.
3
Comparable Treasury Price means, with respect to any Redemption Date, (i) the
average of the Reference Treasury Dealer Quotations obtained by the Company for such Redemption Date, after excluding the highest and lowest of such Reference Treasury Dealer Quotations, (ii) if the Company is unable to obtain at least four
such Reference Treasury Dealer Quotations, the average of all Reference Treasury Dealer Quotations obtained by the Company or (iii) if the Company can only obtain one Reference Treasury Dealer Quotation, such quotation.
Consolidated Net Tangible Assets means, of any Person as of any date, the total assets of such Person and its Subsidiaries as of
the most recent fiscal quarter end for which a consolidated balance sheet of such Person and its Subsidiaries is available as of that date, minus (i) all current liabilities of such Person and its Subsidiaries reflected on such balance sheet
(excluding any current liabilities for borrowed money having a maturity of less than 12 months but by its terms being renewable or extendible beyond 12 months from such date at the option of the borrower) and (ii) all goodwill, tradenames,
trademarks, patents, unamortized debt discount (to the extent included in total assets) and expense and other like intangible assets of such Person and its Subsidiaries reflected on such balance sheet, all calculated on a consolidated basis in
accordance with GAAP.
Covenant Defeasance has the meaning set forth in Section 7.03 hereof.
Credit Agreement means the amended and restated credit agreement providing for revolving credit and term loan borrowings, among
the Company, as borrower, JPMorgan Chase Bank, N.A., as administrative agent, the syndication agent and documentation agents named therein, and the lenders party thereto from time to time, dated as of December 3, 2014, as amended as of the
Issue Date, as such agreement, in whole or in part, in one or more instances, may be amended, renewed, extended, substituted, refinanced, restructured, replaced, supplemented or otherwise modified from time to time (including, without limitation,
any successive renewals, extensions, substitutions, refinancings, restructurings, replacements, supplements or other modifications of the foregoing).
Currency Agreement means in respect of a Person any foreign exchange contract, currency swap agreement or other similar agreement
or arrangements designed to protect such Person against fluctuations in currency values.
Debt Facilities means one or more
debt facilities or commercial paper facilities, in each case with banks or other financial institutions or institutional lenders, or other Persons which provide, originate or arrange debt or commercial paper facilities, providing for revolving
credit loans, term loans, receivables financing or letters of credit, including the Credit Agreement, and/or one or more indentures relating to debt securities, in each case in existence from time to time as such facilities, in whole or in part, in
one or more instances, may be amended, renewed, extended, substituted, refinanced, restructured, replaced, supplemented or otherwise modified from time to time (including, without limitation, any successive renewals, extensions, substitutions,
refinancings, restructurings, replacements, supplements or other modifications of the foregoing).
Defeasance has the meaning
set forth in Section 7.02 hereof.
Definitive Notes means certificated Notes registered in the name of the Holder thereof
and issued in accordance with Section 2.02 hereof, substantially in the form of Exhibit A hereto, except that such Security shall not bear the Global Note Legend.
4
Depositary means, with respect to Global Notes issued under this Supplemental
Indenture, DTC.
Dollar and $ means the lawful currency of the United States of America.
Domestic Subsidiary means a Subsidiary of the Company that is organized or existing under the laws of the United States, any state
thereof, the District of Columbia or any territory thereof.
DTC means The Depository Trust Company, its nominees and their
successors and assigns.
Eligible Special Purpose Entity means any Person which is or is not a Subsidiary of the Company which
has been formed by or for the benefit of the Company or any Subsidiary of the Company for the purpose of (i) financing or refinancing, leasing, selling or securitizing Vehicles or related receivables and which finances, refinances or
securitizes Vehicles or related receivables of, leases Vehicles to or purchases Vehicles or related receivables from the Company or any Subsidiary of the Company; or (ii) financing or refinancing consumer receivables, leases, loans or retail
installment contracts.
Exchange Act means the Securities Exchange Act of 1934, as amended, or any successor statute, and the
rules and regulations promulgated by the Securities and Exchange Commission thereunder.
Generally Accepted Accounting
Principles or GAAP means generally accepted accounting principles and interpretations thereof in the United States, consistently applied, which are in effect as of the date hereof.
Global Note means a single permanent fully-registered global note in book-entry form, without coupons, substantially in the form
of Exhibit A attached hereto.
Global Note Legend means a legend containing substantially the legend set forth in the
form of Note attached as Exhibit A hereto.
Guarantee means any obligation, contingent or otherwise, of any Person
directly or indirectly guaranteeing any Indebtedness of any other Person and any obligation, direct or indirect, contingent or otherwise, of such Person (1) to purchase or pay (or advance or supply funds for the purchase or payment of) such
Indebtedness of such other Person (whether arising by virtue of partnership arrangements, or by agreement to keep well, to purchase assets, goods, securities or services, to take or pay or to maintain financial statement conditions or otherwise) or
(2) entered into for purposes of assuring in any other manner the obligee of such Indebtedness of the payment thereof or to protect such obligee against loss in respect thereof (in whole or in part); provided, however, that the
term guarantee will not include endorsements for collection or deposit in the ordinary course of business. The term guarantee, when used as a verb, has a correlative meaning.
Guarantors means each Domestic Subsidiary of the Company that executes a Subsidiary Guarantee in accordance with the provisions of
this Supplemental Indenture, and their respective successors and assigns.
Hedging Obligations means the obligations of any
Person pursuant to any Interest Rate Agreement or Currency Agreement.
5
Holder means the Person in whose name a Note is registered on the Register.
Incur means issue, assume, guarantee or otherwise become liable for Indebtedness.
Indebtedness means, with respect to any Person, obligations of such Person for borrowed money (including, without limitation,
Indebtedness for borrowed money evidenced by notes, bonds, debentures or similar instruments), excluding any trade payables and other current liabilities arising in the ordinary course of business.
Indenture has the meaning given to such term in the recitals hereof.
Independent Investment Banker means J.P. Morgan Securities LLC, Merrill Lynch, Pierce, Fenner & Smith Incorporated, Wells
Fargo Securities, LLC or SunTrust Robinson Humphrey, Inc., or, if such firms are unwilling or unable to select the applicable Comparable Treasury Issue, an independent investment banking institution of national standing appointed by the Company.
Indenture Obligations means the obligations of the Company and any other obligor under the Indenture or under the Notes,
including any Guarantor, to pay principal of, premium, if any, and interest when due and payable, and all other amounts due or to become due under or in connection with this Indenture, the Notes and the performance of all other obligations to the
Trustee and the holders under this Indenture and the Notes, according to the respective terms thereof.
Indirect Participant
means a Person who holds a beneficial interest in a Global Note through a Participant.
Interest Payment Date has the meaning
set forth in Section 2.03(c).
Interest Rate Agreement means, in respect of a Person, any interest rate swap agreement,
interest rate cap agreement or other financial agreement or arrangement designed to protect such Person against fluctuations in interest rates.
Interest Rate Rating Agency and Interest Rate Rating Agencies have the meanings set forth in Section 2.03(c).
Investment Grade means a rating of Baa3 or better by Moodys (or its equivalent under any successor rating categories of
Moodys) and a rating of BBB- or better by S&P (or its equivalent under any successor rating categories of S&P) or the equivalent Investment Grade credit rating from any additional Rating Agency or Rating Agencies selected by the
Company.
Issue Date means September 21, 2015.
Lien means any mortgage or deed of trust, charge, pledge, lien (statutory or otherwise), privilege, security interest, assignment,
deposit, arrangement, easement, hypothecation, claim, preference, priority or other encumbrance upon or with respect to any property of any kind (including any conditional sale, capital lease or other title retention agreement, any leases in the
nature thereof, and any agreement to give any security interest), real or personal, movable or immovable, now owned or hereafter acquired. A Person will be deemed to own subject to a Lien any property which it has acquired or holds subject to the
interest of a vendor or lessor under any conditional sale agreement, Capital Lease Obligation or other title retention agreement.
6
Manufacturer means a vehicle manufacturer which is a party to a dealership agreement
with the Company or any Subsidiary of the Company.
Manufacturers Letter Agreements means each of the following:
(i) that certain letter dated January 30, 2006 to Mr. Kevin Flynn of Toyota Motor Sales USA, which was confirmed and agreed by Ms. Nancy Davies on behalf of Toyota Motor Sales, U.S.A., Inc., (ii) that certain letter dated
January 30, 2006 to Ms. Olga Reisler of Nissan North America, Inc., which was confirmed and agreed by Ms. Reisler on behalf of Nissan North America, Inc., (iii) that certain letter dated January 30, 2006 to Mr. Alex
Larkin of Kia Motors America, Inc., which was confirmed and agreed by Mr. Larkin on behalf of Kia Motors America, Inc., (iv) that certain letter dated January 30, 2006 to Ms. Jennifer Moneagle of Ford Motor Company, which was
confirmed and agreed by R. Erik Peterson on behalf of Ford Motor Company and (v) that certain letter dated February 23, 2006 to Ms. Donna Parlapiano, Vice President, Regional Operations & Industry Relations, of the Company,
from BMW of North America, LLC.
Maturity means, when used with respect to the Notes, the date on which the principal of the
Notes becomes due and payable as therein provided or as provided in the Indenture, whether at Stated Maturity or the Redemption Date and whether by declaration of acceleration, Change of Control Offer in respect of a Change of Control Repurchase
Event, call for redemption or otherwise.
Maturity Date has the meaning set forth in Section 2.03(b) hereof.
Moodys means Moodys Investors Service Inc., a subsidiary of Moodys Corporation, and its successors.
Mortgage Facilities means one or more debt facilities in each case with banks, manufacturers and/or other entities providing for
borrowings secured primarily by real property in each case as amended, restated, modified, renewed, refunded, replaced or refinanced in whole or in part from time to time; provided, that the value of the security securing such debt facilities
shall not, at the time such debt facilities are entered into, exceed 100% of the aggregate principal amount of the Indebtedness in respect of such debt facilities.
Notes has the meaning given to such term in the recitals hereof.
Participant means, with respect to the Depositary, a Person who has an account with the Depositary.
Person means any individual, corporation, limited liability company, partnership, joint venture, association, joint-stock company,
trust, unincorporated organization or government or any agency or political subdivision thereof.
Preferred Stock means, with
respect to any Person, any Capital Stock of any class or classes (however designated) which is preferred as to the payment of dividends or distributions, or as to the distribution of assets upon any voluntary or involuntary liquidation or
dissolution of such Person, over the Capital Stock of any other class in such Person.
Principal Property means any building,
structure or other facility located within the United States (other than its territories and possessions) and owned by the Company or any Domestic Subsidiary, the book value of which is not less than 0.5% of the Companys Consolidated Net
Tangible Assets. For purposes of this definition, book value will be measured at the time the relevant Lien is being created or, in the case of any Lien incurred pursuant to Section 5.01(c), at the time the relevant secured Indebtedness is
deemed to be Incurred. The term Principal Property does not include any building, structure or other facility that the Board of Directors declares by resolution not to be of material importance to the total business conducted by the
Company and its Domestic Subsidiaries taken as a whole.
7
Prospectus Supplement means the prospectus supplement of the Company dated
September 16, 2015, relating to the Notes.
Rating Agency means (1) each of Moodys and S&P; and
(2) if either of Moodys or S&P ceases to rate the Notes or fails to make a rating of the Notes publicly available for reasons outside of the control of the Company, a nationally recognized statistical rating organization
within the meaning of Section 3(a)(62) of the Exchange Act, selected by the Company as a replacement agency for Moodys or S&P, or both of them, as the case may be.
Rating Date means the date that is 60 days prior to the earlier of (i) a Change of Control or (ii) public notice of the
occurrence of a Change of Control or of the intention by the Company to affect a Change of Control.
Ratings Event means the
occurrence of the events described in (a) or (b) of this definition on, or within 60 days after the earlier of, (i) the occurrence of a Change of Control or (ii) public notice of the occurrence of a Change of Control or the
intention by the Company to effect a Change of Control (which period shall be extended so long as the rating of the Notes is under publicly announced consideration for a possible downgrade by any of the Rating Agencies): (a) if the Notes are
rated by one or both Rating Agencies on the Rating Date as Investment Grade, the rating of the Notes shall be reduced so that the Notes are rated below Investment Grade by both Rating Agencies or (b) if the Notes are rated below Investment
Grade by both Rating Agencies on the Rating Date, the rating of the Notes shall remain below Investment Grade by both Rating Agencies.
Redemption Date means the Business Day on which Notes are redeemed by the Company pursuant to Section 3.01 hereof.
Reference Treasury Dealer means J.P. Morgan Securities LLC, Merrill Lynch, Pierce, Fenner & Smith Incorporated, a Primary
Treasury Dealer (as defined herein) selected by Wells Fargo Securities, LLC or a Primary Treasury Dealer selected by SunTrust Robinson Humphrey, Inc., and their respective successors, and at least one other primary U.S. government securities dealers
in New York City (each, a Primary Treasury Dealer) selected by the Independent Investment Banker; provided, however, that if any of the foregoing shall cease to be a Primary Treasury Dealer, the Company shall substitute therefor
another Primary Treasury Dealer.
Reference Treasury Dealer Quotation means, with respect to each Reference Treasury Dealer
and any Redemption Date for the Notes, an average, as determined by the Company, of the bid and asked prices for the Comparable Treasury Issue for the Notes, expressed in each case as a percentage of its principal amount, quoted in writing to the
Company by such Reference Treasury Dealer at 3:30 p.m., New York City time, on the third Business Day preceding such Redemption Date.
Regular Record Date has the meaning set forth in Section 2.03(c).
Registered Securities means any Securities which are registered in the Register.
S&P means Standard & Poors, a division of The McGraw-Hill Companies, Inc., and its successors.
8
Sale and Leaseback Transaction means an arrangement by the Company or any of its
Domestic Subsidiaries with any other Person pursuant to which the Company or any of its Domestic Subsidiaries leases any Principal Property that has been or is to be sold or transferred by the Company or any Domestic Subsidiary to such other Person
with the intention of taking back a lease, whether now owned or hereafter acquired.
Securities has the meaning given to such
term in the recitals hereof.
Significant Subsidiary means any Subsidiary which is a significant subsidiary within
the meaning of Rule 405 under the Securities Act.
Stated Maturity means, when used with respect to any Indebtedness or any
installment of interest thereon, the dates specified in such Indebtedness as the fixed date on which the principal of such Indebtedness or such installment of interest, as the case may be, is due and payable.
Subsidiary means, with respect to any Person (the parent) at any date, any corporation, limited liability company,
partnership, association or other entity of which a majority of the shares or securities or other interests having ordinary voting power for the election of directors or another governing body (other than securities or interests having such power
only by reason of the happening of a contingency) are at the time beneficially owned directly or indirectly through one or more intermediaries, or both, by the parent.
Subsidiary Guarantee means the guarantee by any Guarantor of the Companys Indenture Obligations.
Substitute Rating Agency means a nationally recognized statistical rating organization within the meaning of
Section 3(a)(62) of the Exchange Act selected by the Company (pursuant to a resolution of the Companys Board of Directors) as a replacement agency for Moodys or S&P, or both of them, as the case may be.
Treasury Yield means, with respect to any Redemption Date applicable to the Notes, the rate per annum equal to the semi-annual equivalent yield to maturity, computed as of the third Business Day immediately preceding the Redemption Date, of the Comparable Treasury Issue, assuming a price for the Comparable Treasury Issue,
expressed as a percentage of its principal amount, equal to the applicable Comparable Treasury Price for such Redemption Date.
Trustee has the meaning given to such term in the preamble hereof.
Vehicle Inventory Indebtedness means Indebtedness (including pursuant to a commercial paper program) Incurred by the Company, any
Subsidiary of the Company or any Eligible Special Purpose Entity to purchase, lease, finance or refinance or guaranty the purchasing, leasing, financing or refinancing of Vehicles in the ordinary course of business of the Company and its
Subsidiaries or related receivables, which Indebtedness (x) is secured by the Vehicles or related receivables so financed, to the extent, at any date of determination thereof, the amount of such Indebtedness does not exceed the depreciated book
value of such Vehicles or the book value of such related receivables determined in accordance with GAAP applied on a consistent basis or (y) is unsecured and provides for a borrowing base which may not exceed 85% of the value of such Vehicles.
Vehicle Receivables Indebtedness means Indebtedness (including pursuant to a commercial paper program) Incurred by any
Eligible Special Purpose Entity to finance, refinance or guaranty the financing or refinancing of consumer receivables, leases, loans or retail
9
installment contracts incurred in the sale, transfer or lease of Vehicles; provided (x) no assets other than the Vehicles, consumer receivables, leases, loans, retail installment
contracts or related proceeds (including, without limitation, proceeds from insurance, Vehicles and other obligations under such receivables, leases, loans or retail installment contracts) to be financed or refinanced secure such Indebtedness; and
(y) neither the Company nor any of its other Subsidiaries shall incur any liability with respect to such Indebtedness other than liability arising by reason of (1) a breach of a representation or warranty or customary indemnities, in each
case contained in any instrument relating to such Indebtedness or (2) customary interests retained by the Company and/or its Domestic Subsidiaries in such Indebtedness.
Vehicles means all now existing or hereafter acquired new and used automobiles, sport utility vehicles, trucks and vans of all
types and descriptions, whether held for sale, lease, rental or operational purposes, which relate to the Companys or any of its Subsidiarys Automobile Retailing Activities.
Voting Stock of any specified person (as that term is used in Section 13(d)(3) of the Exchange Act) as of any
date means the Capital Stock of such person that is at the time entitled to vote generally in the election of the board of directors of such person.
ARTICLE II
CREATION,
FORMS, TERMS AND CONDITIONS OF THE SECURITIES
SECTION 2.01 Creation of the Notes. The Notes are hereby authorized and are
designated the 4.500% Senior Notes due 2025, unlimited in aggregate principal amount. In accordance with Sections 2.01 and 3.01 of the Base Indenture, the Company hereby creates the Notes as a separate series of its Securities issued pursuant to the
Indenture. The Notes shall be issued on the date hereof initially in an aggregate principal amount of $450,000,000, which amount shall be set forth in the written order of the Company for the authentication and delivery of the Notes pursuant to
Section 3.03 of the Base Indenture. In addition, the Company may issue, from time to time in accordance with the provisions of the Indenture, additional Notes having the same terms and conditions as the Notes issued on the date hereof in all
respects (except for the payment of interest accruing prior to the issue date of such additional Notes), so that such additional Notes shall be consolidated and form a single series with the Notes issued on the Issue Date and shall be governed by
the terms of the Indenture; provided, however, that if any additional Notes are not fungible for U.S. federal income tax purposes with the Notes issued under the terms of this Indenture, such additional Notes shall be issued under a
separate CUSIP number.
SECTION 2.02 Form of the Notes. The Notes shall each be issued in the form of a Global Note, duly
executed by the Company and authenticated by the Trustee, which shall be deposited with the Trustee as custodian for DTC and registered in the name of Cede & Co., as the nominee of DTC. The Notes shall be substantially in the
form of Exhibit A attached hereto (including the Global Note Legend thereon). Notes issued in definitive certificated form in accordance with the terms of the Base Indenture and this Supplemental Indenture, if any, shall be substantially in
the form of Exhibit A attached hereto (but without the Global Note Legend thereon). So long as DTC, or its nominee, is the registered owner of a Global Note, DTC or its nominee, as the case may be, shall be considered the sole owner or Holder
of the Notes represented by such Global Note for all purposes under the Indenture. Ownership of beneficial interests in such Global Note shall be shown on, and transfers thereof shall be effected only through, records maintained by DTC (with respect
to beneficial interests of participants) or by participants or Persons that hold interests through participants (with respect to beneficial interests
10
of beneficial owners). In addition, the following provisions of clauses (1), (2), and (3) below shall apply only to Global Notes:
(1) Notwithstanding any other provision in the Indenture, no Global Note may be exchanged in whole or in part for Securities registered, and
no transfer of a Global Note in whole or in part may be registered, in the name of any Person other than the Depositary for such Global Note or a nominee thereof unless (A) such Depositary has notified the Company that it is unwilling or unable
to continue as Depositary for such Global Note or has ceased to be a clearing agency registered under the Exchange Act, and the Company has not appointed a successor Depositary within 90 days of receipt of such notice (B) there shall have
occurred and be continuing an Event of Default with respect to the Notes or (C) the Company (subject to the procedures of the Depositary) so directs the Trustee by Company Order. Beneficial interests in Global Notes may be exchanged for
Definitive Notes of the same series upon request upon prior written notice given to the Trustee by us or behalf of the Depositary in accordance with customary procedures.
(2) Subject to clause (1) above, any exchange of a Global Note for other Definitive Notes may be made in whole or in part, and all
Definitive Notes issued in exchange for a Global Note or any portion thereof shall be registered in such names as the Depositary for such Global Note shall direct.
(3) Every Definitive Note authenticated and delivered upon registration of transfer of, or in exchange for or in lieu of, a Global Note or any
portion thereof, shall be authenticated and delivered in the form of, and shall be, a Global Note, unless such note is registered in the name of a Person other than the Depositary for such Global Note or a nominee thereof.
SECTION 2.03 Terms and Conditions of the Notes. The Notes shall be governed by all the terms and conditions of the Base Indenture,
as supplemented by this Supplemental Indenture. In particular, the following provisions shall be terms of the Notes:
(a) Title and
Aggregate Principal Amount. The title of the Notes shall be as specified in the Recitals of the Company; and the aggregate principal amount of the Notes shall be as specified in Section 2.01 of this Article II and this Section 2.03,
except as permitted by Sections 3.04, 3.06 or 3.07 of the Base Indenture.
(b) Stated Maturity. The Notes shall mature, and the
unpaid principal thereon shall be payable, on October 1, 2025 (the Maturity Date), subject to the provisions of the Base Indenture and Articles III and IV below.
(c) Interest. The rate per annum at which interest shall be payable on the Notes shall be 4.500%, subject to adjustment under this
Section 2.03. Interest on the Notes shall be payable semi-annually in arrears on each April 1 and October 1, commencing on April 1, 2016 (each, an Interest Payment Date), to the Persons in whose names the applicable
Notes are registered in the Register applicable to the Notes at the close of business on the immediately preceding March 15 and September 15, respectively, prior to the applicable Interest Payment Date regardless of whether such day is a
Business Day (each, a Regular Record Date). Interest on the Notes shall be computed on the basis of a 360-day year consisting of twelve 30-day months. Interest on the Notes issued on the Issue Date shall accrue from and including
September 21, 2015 or the most recent Interest Payment Date on which interest was paid. If an Interest Payment Date or the Maturity Date falls on a day that is not a Business Day, the payment shall be made on the next Business Day as if it were
made on the date the payment was due, and no interest shall accrue on the amount so payable for the period from and after that Interest Payment
11
Date or the Maturity Date, as the case may be, to the date the payment is made. Interest payments shall include accrued interest from and including the Issue Date or from and including the last
date in respect to which interest has been paid, as the case may be, to, but excluding, the Interest Payment Date or the Maturity Date, as the case may be.
(i) The interest rate payable on the Notes will be subject to adjustments from time to time if either Moodys or S&P, or in either
case, a Substitute Rating Agency thereof, downgrades (or subsequently upgrades) the rating assigned to such Notes, in the manner described below. Each of Moodys, S&P and any Substitute Rating Agency is an Interest Rate Rating
Agency, and together they are Interest Rate Rating Agencies.
If the rating of the Notes from one or both of
Moodys or S&P (or, if applicable, any Substitute Rating Agency) is decreased to a rating set forth in either of the immediately following tables, the interest rate on the Notes will increase from the interest rate payable on the Notes on
the Issue Date by an amount equal to the sum of the percentages per annum set forth in the following tables opposite those ratings:
|
|
|
|
|
Moodys Rating* |
|
Percentage Points |
|
Ba1 |
|
|
0.25 |
|
Ba2 |
|
|
0.50 |
|
Ba3 |
|
|
0.75 |
|
B1 or below |
|
|
1.00 |
|
* |
Including the equivalent ratings of any Substitute Rating Agency. |
|
|
|
|
|
S&P Rating* |
|
Percentage Points |
|
BB+ |
|
|
0.25 |
|
BB |
|
|
0.50 |
|
BB- |
|
|
0.75 |
|
B+ or below |
|
|
1.00 |
|
* |
Including the equivalent ratings of any Substitute Rating Agency. |
(ii) For purposes of
making adjustments to the interest rate on the Notes, the following rules of interpretation will apply:
1) if at any time
less than two Interest Rate Rating Agencies provide a rating on the Notes for reasons not within the Companys control (i) the Company will use commercially reasonable efforts to obtain a rating on the Notes from a Substitute Rating Agency
for purposes of determining any increase or decrease in the interest rate on the Notes pursuant to the tables above, (ii) such Substitute Rating Agency will be substituted for the last Interest Rate Rating Agency to provide a rating on the
Notes but which has since ceased to provide such rating, (iii) the relative ratings scale used by such Substitute Rating Agency to assign ratings to senior unsecured debt will be determined in good faith by an independent investment banking
institution of national standing appointed by us and, for purposes of determining the applicable ratings included in the applicable table above with respect to such Substitute Rating Agency, such ratings shall be deemed to be the equivalent ratings
used by Moodys or S&P, as applicable, in such table, and (iv) the interest rate on the Notes will increase or decrease, as the case may be, such that the interest rate equals the interest rate with respect to the Notes set forth on
the cover page of this prospectus supplement plus the appropriate percentage, if any, set forth opposite the rating from such Substitute Rating Agency in the applicable table above (taking into account the provisions of clause (iii) above)
(plus any applicable percentage resulting from a decreased rating by the other Interest Rate Rating Agency);
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2) for so long as only one Interest Rate Rating Agency provides a rating on the
Notes, any increase or decrease in the interest rate on the Notes of any series necessitated by a reduction or increase in the rating by that Interest Rate Rating Agency shall be twice the applicable percentage set forth in the applicable table
above;
3) if both Interest Rate Rating Agencies cease to provide a rating of the Notes for any reason, and no Substitute
Rating Agency has provided a rating on the Notes, the interest rate on the Notes will increase to, or remain at, as the case may be, 2.00% per annum above the interest rate on the Notes prior to any such adjustment;
4) if Moodys or S&P ceases to rate the Notes or make a rating of the Notes publicly available for reasons within our
control, the Company will not be entitled to obtain a rating from a Substitute Rating Agency and the increase or decrease in the interest rate on the Notes shall be determined in the manner described above as if either only one or no Interest Rate
Rating Agency provides a rating on the Notes, as the case may be;
5) each interest rate adjustment required by any
decrease or increase in a rating as set forth above, whether occasioned by the action of Moodys or S&P (or, in either case, any Substitute Rating Agency), shall be made independently of (and in addition to) any and all other interest rate
adjustments occasioned by the action of the other Interest Rate Rating Agency;
6) in no event will (i) the interest
rate on the Notes be reduced to below the interest rate on the Notes prior to any adjustment or (ii) the total increase in the interest rate on the Notes exceed 2.00% above the interest rate payable on the Notes on the date of their initial
issuance; and
7) subject to clauses (3) and (4) above, no adjustment in the interest rate on the Notes shall be
made solely as a result of an Interest Rate Rating Agency ceasing to provide a rating of the Notes.
(iii) If at any time the interest
rate of the Notes has been adjusted upward and either of the Interest Rate Rating Agencies subsequently increases its rating of the Notes, the interest rate on the Notes will again be adjusted (and decreased, if appropriate) such that the interest
rate on the Notes equals the interest rate on the Notes prior to any such adjustment plus (if applicable) an amount equal to the sum of the percentages per annum set forth opposite the ratings in the tables above with respect to the ratings assigned
to the Notes (or deemed assigned) at that time, all calculated in accordance with the rules of interpretation set forth above. If Moodys or any Substitute Rating Agency subsequently increases its rating on the Notes to Baa3 (or its
equivalent if with respect to any Substitute Rating Agency) or higher and S&P or any Substitute Rating Agency subsequently increases its rating on the Notes to BBB- (or its equivalent if with respect to any Substitute Rating Agency)
or higher, the interest rate on such Notes will be decreased to the interest rate on the Notes prior to any adjustments made pursuant to this Section 2.03(c);
(iv) Any interest rate increase or decrease described above will take effect from the first day of the interest period following the period
in which a rating change occurs requiring an adjustment in the interest rate. If either Interest Rate Rating Agency changes its rating of the Notes more than once during any particular interest period, the last such change by such Interest Rate
Rating Agency to occur will control in the event of a conflict for purposes of any increase or decrease in the interest rate with respect to the Notes.
13
(v) The interest rate of Notes will permanently cease to be subject to any adjustment described
above (notwithstanding any subsequent decrease in the ratings by either Interest Rate Rating Agency) if such Notes become rated Baa1 or higher by Moodys (or its equivalent if with respect to any Substitute Rating Agency) and
BBB+ or higher by S&P (or its equivalent if with respect to any Substitute Rating Agency), in each case with a stable or positive outlook.
(vi) The Trustee will have no responsibility whatsoever to monitor whether the interest rate on the Notes is at any time subject to any
adjustment under this Section 2.03. The Company will promptly notify the Trustee in writing if at any time the interest rate payable on the Notes becomes subject to such adjustment.
(d) Registration and Form. The Notes shall be issuable as Registered Securities as provided in Section 2.02 of this Article II.
The Notes shall be issued and may be transferred only in minimum denominations of $2,000 and integral multiples of $1,000 above that amount. All payments of principal, the price payable on redemption, the repurchase price payable pursuant to any
Change of Control Offer and interest in respect of the Notes shall be made by the Company in immediately available funds.
(e) Further
Issues. Notwithstanding anything to the contrary contained herein or in the Base Indenture, the Company may, from time to time, without the consent of or notice to the Holders, create and issue further securities having the same ranking and
terms and conditions as the Notes in all respects, except for issue date, the public offering price and, in some cases, the first Interest Payment Date. Additional Notes issued in this manner shall be consolidated with and shall form a single series
with the previously Outstanding Notes. Notice of any such issuance shall be given to the Trustee and a new supplemental indenture shall be executed in connection with the issuance of such additional Notes.
(f) Merger, Consolidation or Sale of Assets. The provisions regarding merger, consolidation or sale of assets contained in
Section 6.04 of the Base Indenture are deleted and replaced in their entirety by the provisions of Section 5.04 of this Supplemental Indenture with respect to the Notes.
(g) Compliance Certificate. The provisions for furnishing the Trustee certificates regarding compliance contained in Sections 6.05 and
6.07 of the Base Indenture are deleted and replaced in their entirety by the provisions of Section 5.05 of this Supplemental Indenture with respect to the Notes.
(h) Defeasance and Covenant Defeasance; Discharge. The provisions regarding Defeasance, Covenant Defeasance and Discharge contained in
Article XII of the Base Indenture are deleted and replaced in their entirety by the provisions of Article VII of this Supplemental Indenture with respect to the Notes.
(i) Amendment, Supplement and Waiver. The provisions regarding amendment, supplement and waiver contained in Article XIV of the Base
Indenture are deleted and replaced in their entirety by the provisions of Article VIII of this Supplemental Indenture with respect to the Notes.
(j) Guarantee. The full and punctual payment by the Company of the principal of, premium, if any, and interest on the Notes is fully
and unconditionally guaranteed on a joint and several senior unsecured basis by each of the Guarantors as provided in Article IX of this Supplemental Indenture.
(k) Other Terms and Conditions. The Notes shall have such other terms and conditions as provided in the form thereof attached as
Exhibit A.
14
SECTION 2.04 Ranking. The Notes shall be general unsecured obligations of the
Company. The Notes shall rank pari passu in right of payment with all unsecured and unsubordinated indebtedness, including, without limitation, any unsecured senior indebtedness, of the Company and senior in right of payment to all
subordinated indebtedness of the Company.
SECTION 2.05 Sinking Fund. The Notes shall not be entitled to any sinking fund.
SECTION 2.06 Place of Payment. The Place of Payment in respect of the Notes will be at the office or agency of the Company
in The City of New York, State of New York or at the office or agency of the Paying Agent in The City of New York, State of New York.
SECTION 2.07 Transfer and Exchange.
(a) The transfer and exchange of beneficial interests in the Global Notes shall be effected through the Depositary, in accordance with the
provisions of the Base Indenture, this Supplemental Indenture and the then applicable procedures of the Depositary (the Applicable Procedures). In connection with all transfers and exchanges of beneficial interests, the transferor of
such beneficial interest must deliver to the Trustee either (A)(1) a written order from a Participant or an Indirect Participant given to the Depositary in accordance with the Applicable Procedures directing the Depositary to credit or cause to be
credited a beneficial interest in another Global Note in an amount equal to the beneficial interest to be transferred or exchanged and (2) instructions given in accordance with the Applicable Procedures containing information regarding the
Participant account to be credited with such increase or, if Definitive Notes are at such time permitted to be issued pursuant to this Supplemental Indenture and the Base Indenture, (B)(1) a written order from a Participant or an Indirect
Participant given to the Depositary in accordance with the Applicable Procedures directing the Depositary to cause to be issued a Definitive Note in an amount equal to the beneficial interest to be transferred or exchanged and (2) instructions
given by the Depositary to the Registrar containing information regarding the Person in whose name such Definitive Note shall be registered to effect the transfer or exchange referred to in (1) above. Upon satisfaction of all of the
requirements for transfer or exchange of beneficial interests in Global Notes contained in the Base Indenture, this Supplemental Indenture and the Notes, the Registrar shall adjust the principal amount of the relevant Global Notes pursuant to
Section 2.08 hereof.
(b) Upon written request by a Holder of Definitive Notes and such Holders compliance with the provisions
of this Section 2.07(b), the Registrar shall register the transfer or exchange of Definitive Notes. Prior to such registration of transfer or exchange, the requesting Holder shall present or surrender to the Trustee the Definitive Notes duly
endorsed or accompanied by a written instruction of transfer in form satisfactory to the Registrar duly executed by such Holder or by its attorney, duly authorized in writing. The Trustee shall cancel any such Definitive Notes so surrendered, and
the Company shall execute and, upon receipt of a Company Order pursuant to Section 3.03 of the Base Indenture, the Trustee shall authenticate and deliver to the Person designated in the instructions a new Definitive Note in the appropriate
principal amount. Any Definitive Note issued pursuant to this Section 2.07(b) shall be registered in such name or names and in such authorized denomination or denominations as the Holder of such beneficial interest shall instruct the Registrar
through instructions from the Depositary and the Participant or Indirect Participant. The Trustee shall deliver such Definitive Notes to the Persons in whose names such Definitive Notes are so registered. In addition, the requesting Holder shall
provide any additional certifications, documents and information, as applicable, required pursuant to Section 3.06 of the Base Indenture.
15
SECTION 2.08 Cancellation and/or Adjustment of Global Notes. At such time as all
beneficial interests in a particular Global Note have been exchanged for Definitive Notes or a particular Global Note has been redeemed, repurchased or cancelled in whole and not in part, each such Global Note shall be returned to or retained and
cancelled by the Trustee in accordance with Section 3.09 of the Base Indenture. At any time prior to such cancellation, if any beneficial interest in a Global Note is exchanged for or transferred to a Person who will take delivery thereof in
the form of a beneficial interest in another Global Note or for Definitive Notes, the principal amount of Securities represented by such Global Note shall be reduced accordingly and an endorsement shall be made on such Global Note by the Trustee or
by the Depositary at the direction of the Trustee to reflect such reduction; and if the beneficial interest is being exchanged for or transferred to a Person who will take delivery thereof in the form of a beneficial interest in another Global Note,
such other Global Note shall be increased accordingly and an endorsement shall be made on such Global Note by the Registrar or by the Depositary at the direction of the Registrar to reflect such increase.
ARTICLE III
REDEMPTION
OF THE NOTES
SECTION 3.01 Optional Redemption by Company.
(a) The Company may redeem the Notes at any time in whole, or from time to time in part, at a redemption price equal to the greater of:
(i) 100% of the principal amount of the Notes to be redeemed; and
(ii) the sum of the present values of the remaining scheduled payments of principal and interest on the Notes to be redeemed, exclusive of
interest accrued to the date of redemption, discounted to the date of redemption on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) at the applicable Treasury Yield, plus 35 basis points plus, accrued and unpaid
interest thereon to, but not including, the Redemption Date; provided, however, that at any time on or after July 1, 2025, the Company may redeem the Notes, at its option, in whole, or from time to time in part, at a redemption price
equal to 100% of the principal amount of the Notes to be redeemed, plus accrued and unpaid interest thereon to, but not including, the Redemption Date.
(b) Notwithstanding subsection (a) above, installments of interest on the Notes that are due and payable on any Interest Payment Date
falling on or prior to a Redemption Date shall be payable on such Interest Payment Date to the registered Holders as of the close of business on the relevant Regular Record Date according to the terms of the Notes and the Indenture. Unless the
Company defaults in payment of the amount payable on redemption, on and after the Redemption Date, interest shall cease to accrue on the Notes or portions thereof that are called for redemption.
(c) The Notes called for redemption become due on the date fixed for redemption. Notices of redemption shall be mailed by first-class mail at
least thirty (30) but not more than sixty (60) days before such Redemption Date to each Holder of the Notes to be redeemed at its registered address (with a copy to the Trustee). At the Companys request, the Trustee shall give the
notice of redemption in the Companys name and at its expense; provided, however, that the Company shall have delivered to the Trustee, at least 45 days prior to the Redemption Date, an Officers Certificate requesting that
the Trustee give such notice and setting forth the information to be stated in such notice. The Company shall calculate the amount payable on redemption and shall deliver an Officers Certificate to the Trustee setting forth the amount payable
on redemption no later than two (2) Business Days prior to the Redemption Date.
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(d) If less than all the Notes are to be redeemed at any time, the Notes to be redeemed shall be
selected by lot by DTC, in the case of Global Notes, or by the Trustee by a method the Trustee deems to be fair and appropriate, in the case of Notes that are not represented by a Global Note. No Notes of $2,000 in principal amount or less shall be
redeemed in part. If any Note is to be redeemed in part only, the notice of redemption relating to such Note will state the portion of the principal amount to be redeemed. A new Note in principal amount equal to the unredeemed portion will be issued
upon cancellation of the original Note.
ARTICLE IV
CHANGE OF CONTROL
SECTION 4.01 Repurchase at the Option of Holders Upon Change of Control Repurchase Event.
(a) If a Change of Control Repurchase Event occurs, unless the Company has exercised its right to redeem the Notes pursuant to
Section 3.01 of this Supplemental Indenture, the Company shall be required to make an offer to each Holder of the Notes to repurchase all or any part (in minimum denominations of $2,000 and integral multiples of $1,000 above that amount) of
that Holders Notes at a repurchase price in cash equal to 101% of the aggregate principal amount of the Notes repurchased plus any accrued and unpaid interest on the Notes repurchased to, but not including, the date of
repurchase; provided that after giving effect to the purchase, any Notes that remain outstanding shall have a denomination of $2,000 and integral multiples of $1,000 above that amount.
(b) Within thirty (30) days following any Change of Control Repurchase Event or, at the option of the Company, prior to any Change of
Control, but after the public announcement of the transaction that constitutes or may constitute the Change of Control, the Company shall mail a notice (a Change of Control Offer) to each Holder, with a copy to the Trustee, describing
the transaction or transactions that constitute or may constitute the Change of Control Repurchase Event and offering to repurchase the Notes on the payment date specified in the notice, which date shall be no earlier than thirty (30) days and
no later than sixty (60) days from the date such notice is mailed. The notice shall, if mailed prior to the date of consummation of the Change of Control, state that the Change of Control Offer is conditioned on a Change of Control Repurchase
Event occurring on or prior to the payment date specified in the notice.
(c) The Company shall comply with the requirements of Rule 14e-1
under the Exchange Act, and any other securities laws and regulations thereunder, to the extent those laws and regulations are applicable in connection with the repurchase of the Notes as a result of a Change of Control Repurchase Event. To the
extent that the provisions of any securities laws or regulations conflict with the Change of Control Repurchase Event provisions of the Notes, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to
have breached its obligations under the Change of Control Repurchase Event provisions of the Notes or the Indenture by virtue of such conflict.
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(d) On the repurchase date following a Change of Control Repurchase Event, the Company shall, to
the extent lawful:
(i) accept for payment all the Notes or portions of the Notes (in minimum denominations of $2,000 and integral
multiples of $1,000 above that amount) properly tendered pursuant to the applicable Change of Control Offer;
(ii) deposit with the
Paying Agent an amount equal to the aggregate purchase price in respect of all the Notes or portions of the Notes properly tendered pursuant to the applicable Change of Control Offer; and
(iii) deliver or cause to be delivered to the Trustee the Notes properly accepted, together with an Officers Certificate stating the
aggregate principal amount of Notes being purchased by the Company.
(e) The Trustee shall promptly mail, or cause the Paying Agent to
promptly mail, to each Holder of Notes properly tendered, the purchase price for the Notes, and the Trustee shall promptly, upon the receipt of a Company Order, authenticate and mail (or cause to be transferred by book-entry) to each Holder a new
Note equal in principal amount to any unpurchased portion of any Notes surrendered; provided, that each new Note shall be in a minimum principal amount of $2,000 or an integral multiple of $1,000 above that amount.
(f) The Company shall not be required to make an offer to repurchase the Notes upon a Change of Control Repurchase Event if a third party
makes such an offer in the manner, at the times and otherwise in compliance with the requirements for an offer made by the Company and such third party purchases all Notes properly tendered and not withdrawn under its offer.
(g) If Holders of not less than 95% in aggregate principal amount of the Outstanding Notes validly tender and do not withdraw such Notes in a
Change of Control Offer and the Company, or any third party making a Change of Control Offer in lieu of the Company, as described in Section 4.01(f) of this Supplemental Indenture, purchases all of the Notes validly tendered and not withdrawn
by such Holders, the Company will have the right, upon not less than thirty (30) nor more than sixty (60) days prior notice, given not more than thirty (30) days following such purchase pursuant to the Change of Control Offer
described in this Section 4.01, to redeem all Notes that remain Outstanding following such purchase at a redemption price in cash equal to 101% of the principal amount thereof, plus accrued and unpaid interest, if any, to the date of
redemption.
ARTICLE V
COVENANTS
SECTION 5.01 Limitation on Liens.
(a) The Company shall not, and shall not permit any of its Domestic Subsidiaries to, create, incur, assume or permit to exist any Lien on
(a) any Principal Property or (b) the Capital Stock of any Subsidiary of the Company, in each case to secure Indebtedness of the Company, any Subsidiary of the Company or any other Person, unless prior to or at the same time, the Notes
(together with, at the option of the Company, any other Indebtedness of the Company or any Subsidiary ranking equally in right of payment with the Notes) are equally and ratably secured with or, at the option of the Company, prior to, such
Indebtedness. Any Lien created for the benefit of the Holders of the Notes pursuant to this Section 5.01(a) shall provide by its terms that such Lien shall be automatically and unconditionally released and discharged upon the release and
discharge of such Lien that gave rise to the obligation to secure the Notes under this Section 5.01(a).
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(b) The restrictions set forth in Section 5.01(a) shall not apply, with respect to any
Person, to any of the following:
(i) any Lien existing on the Issue Date;
(ii) any Lien arising by reason of:
1) any judgment, decree or order of any court, so long as such Lien is adequately bonded or with respect to which adequate
reserves or other appropriate provisions are being maintained in accordance with GAAP and any appropriate legal proceedings which may have been duly initiated for the review of such judgment, decree or order shall not have been finally terminated or
the period within which such proceedings may be initiated shall not have expired;
2) taxes, governmental assessments or
similar governmental charges or levies not yet delinquent or which are being contested in good faith;
3) security for
payment of workers compensation, unemployment insurance and other governmental insurance or benefits and/or other insurance arrangements (including, without limitation, pledges or deposits securing liability under self-insurance general
liability insurance programs);
4) good faith deposits in connection with bids, tenders, statutory obligations, leases and
contracts (other than contracts for the payment of money);
5) zoning and other restrictions, charges or encumbrances
(whether or not recorded), easements (including, without limitation, reciprocal easement agreements and utility agreements) licenses, reservations, title defects, rights of others for rights of way, utilities, sewers, electric lines, telephone or
telegraph lines, and other similar purposes, provisions, covenants, consents, conditions, waivers, variations, encroachments, restrictions on the use of property or minor irregularities of title (and with respect to leasehold interests, mortgages,
obligations, liens and other encumbrances incurred, created assumed or permitted to exist and arising by, through or under a landlord or owner of the leased property, with or without consent of the lessee), none of which materially impairs the use
of any parcel of property material to the operation of the business of the Company or any of its Subsidiaries or the value of such property for the purpose of such business;
6) deposits to secure public, statutory or similar obligations, or in lieu of surety or appeal bonds or Liens incurred or
deposits made as a result of progress payments under government contracts;
7) Liens incurred or deposits made in
connection with letters of credit issued in the ordinary course of business; or
8) operation of law in favor of
mechanics, carriers, warehousemen, landlords, materialmen, laborers, employees, suppliers or other similar Persons, incurred in the ordinary course of business for sums which are not yet delinquent or are being contested in good faith by
negotiations or by appropriate proceedings which suspend the collection thereof;
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(iii) any Lien to secure the performance bids, trade contracts, leases (including, without
limitation, statutory and common law landlords liens), statutory obligations, surety and appeal bonds, letters of credit and other obligations of a like nature and incurred in the ordinary course of business of the Company or any of its
Subsidiaries;
(iv) Liens securing Indebtedness Incurred to finance the construction, purchase or lease of, or repairs, improvements or
additions to, property, plant or equipment of such Person; provided, however, that the Lien may not extend to any other property owned by such Person at the time the Lien is incurred (other than assets and property affixed or
appurtenant thereto), and the Indebtedness (other than any interest thereon) secured by the Lien may not be Incurred more than 180 days after the later of the acquisition, completion of construction, repair, improvement, addition or commencement of
full operation of the property subject to the Lien;
(v) Liens on property or shares of Capital Stock of another Person at the time such
other Person becomes a Subsidiary of such Person; provided, however, that the Liens may not extend to any other property owned by such Person (other than assets and property affixed or appurtenant thereto);
(vi) Liens on property at the time such Person or any of its Subsidiaries acquires the property, including any acquisition by means of a
merger or consolidation with or into such Person or a Subsidiary of such Person; provided, however, that the Liens may not extend to any other property owned by such Person (other than assets and property affixed or appurtenant
thereto);
(vii) Liens in favor of the Company or any of its Subsidiaries;
(viii) any Lien securing any Vehicle Inventory Indebtedness and/or Vehicle Receivables Indebtedness;
(ix) Liens securing Indebtedness under Mortgage Facilities in an aggregate principal amount not to exceed $500.0 million Incurred and
outstanding after the Issue Date;
(x) Liens securing Indebtedness under Debt Facilities in an aggregate principal amount not to exceed
$2,300.0 million at any one time outstanding;
(xi) Liens securing Indebtedness under Interest Rate Agreements, Currency Agreements or
Commodity Price Protection Agreements or otherwise Incurred to hedge interest rate risk or currency or commodity pricing risk;
(xii)
Liens to secure any refinancing (or successive refinancings) as a whole, or in part, of any Indebtedness secured by any Lien referred to in the foregoing clauses (i), (iv), (v), (vi) or (xi); provided, however, that: (a) such
new Lien shall be limited to all or part of the same property and assets that secured or, under the written agreements pursuant to which the original Lien arose, could secure the original Lien (plus improvements and accessions to, such property or
proceeds or distributions thereof); and (b) the Indebtedness secured by such Lien at such time is not increased to any amount greater than the sum of (x) the outstanding principal amount or, if greater, committed amount of the Indebtedness
described in clauses (i), (iv), (v), (vi) or (xi) at the time the original Lien became a Lien permitted under the Indenture and (y) an amount necessary to pay any fees and expenses, including premiums, related to such refinancing,
refunding, extension, renewal or replacement; and
(xiii) Liens on assets subject to a Sale and Leaseback Transaction securing
Attributable Debt permitted to be Incurred pursuant to Section 5.02 of this Supplemental Indenture.
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(c) Notwithstanding the restrictions contained in subsections (a) and (b) of this
Section 5.01, the Company and its Subsidiaries shall be permitted to Incur Indebtedness secured by a Lien which would otherwise be subject to the restrictions contained in subsections (a) and (b) of this Section 5.01 without
equally and ratably securing the Notes, if any, provided that, after giving effect to such Indebtedness, the aggregate amount of all Indebtedness secured by Liens (not including Liens permitted under clauses (i) through (xiii) of
Section 5.01(b)), together with all Attributable Debt outstanding pursuant to Section 5.02(b), does not exceed 15% of the Consolidated Net Tangible Assets of the Company calculated as of the date of the creation or incurrence of the Lien.
The Company and its Subsidiaries also may, without equally and ratably securing the Notes, create or incur Liens that extend, renew, substitute or replace (including successive extensions, renewals, substitutions or replacements), in whole or in
part, any Lien permitted pursuant to the preceding sentence.
SECTION 5.02 Limitations on Sale and Leaseback Transactions.
(a) The Company shall not, and shall not permit any of its Domestic Subsidiaries to, directly or indirectly, enter into any Sale and
Leaseback Transaction, unless:
(i) such transaction with respect to a Principal Property if a binding commitment with respect thereto is
entered into within one year after the later of (x) the Issue Date or (y) the date such Principal Property was acquired;
(ii)
the Sale and Leaseback Transaction is solely with the Company or any of its Domestic Subsidiaries;
(iii) the lease is for a period not
in excess of 36 months, including renewals;
(iv) the Company would (at the time of entering into such arrangement) be entitled to Incur
Indebtedness secured by a Lien with respect to such Sale and Leaseback Transaction, without equally and ratably securing the Notes then Outstanding under the Indenture, pursuant to Section 5.01(c) of this Supplemental Indenture; or
(v) leases where the proceeds from the sale of the subject Principal Property are at least equal to the fair market value (as determined in
good faith by the Company) of the subject Principal Property and the Company applies an amount equal to the net proceeds from the sale of such Principal Property to the purchase of other property or assets used or useful in its business or to the
retirement of long-term Indebtedness within 365 days of the effective date of any such Sale and Leaseback Transaction; provided that, in lieu of applying such amount to the retirement of long-term Indebtedness, the Company may deliver Notes
to the Trustee for cancellation.
(b) Notwithstanding the restrictions set forth in subsection (a) of this Section 5.02, the
Company and its Subsidiaries may enter into any Sale and Leaseback Transaction which would otherwise be subject to such restrictions, if after giving effect thereto the aggregate amount of all Attributable Debt with respect to such transactions,
together with all Indebtedness outstanding pursuant to Section 5.01(c) of this Supplemental Indenture, does not exceed 15% of the Consolidated Net Tangible Assets of the Company calculated as of the closing date of the Sale and Leaseback
Transaction.
SECTION 5.03 Limitation on Issuances of Guarantees of Indebtedness.
(a) The Company shall not cause or permit any Domestic Subsidiary (which is not a Guarantor), directly or indirectly, to guarantee, assume or
in any other manner become
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liable with respect to any Indebtedness of the Company or any Domestic Subsidiary unless such Domestic Subsidiary simultaneously executes and delivers a supplemental indenture to the Indenture
providing for a Subsidiary Guarantee of the Notes on the same terms as the guarantee of such Indebtedness except that (A) such guarantee need not be secured unless required pursuant to Section 5.01 of this Supplemental Indenture and
(B) if such Indebtedness is by its terms expressly subordinated to the Notes, any such assumption, guarantee or other liability of such Domestic Subsidiary with respect to such Indebtedness shall be subordinated to such Domestic
Subsidiarys Subsidiary Guarantee of the Notes at least to the same extent as such Indebtedness is subordinated to the Notes; provided that no such Subsidiary Guarantee will be required if the Companys Credit Agreement is no longer
guaranteed by Domestic Subsidiaries and the debt guaranteed by such Domestic Subsidiary does not exceed $75,000,000.
The obligation to
provide Subsidiary Guarantees set forth in the preceding paragraph will not be applicable to any Guarantees of any Domestic Subsidiary given to a bank or trust company or any commercial banking institution that is a member of the U.S. Federal
Reserve System (or any branch, Subsidiary or Affiliate thereof), in connection with the operation of cash management programs established for its benefit or that of any other Domestic Subsidiary.
(b) Notwithstanding subsection (a) of this Section 5.03, any Subsidiary Guarantee by a Domestic Subsidiary of the Notes shall
provide by its terms that it (and all Liens securing the same) shall be automatically and unconditionally released and discharged upon (i) any sale, exchange or transfer, to any Person not an Affiliate of the Company, of all of the
Companys Capital Stock in, or all or substantially all the assets of, such Domestic Subsidiary, which transaction is in compliance with the terms of the Indenture and such Domestic Subsidiary is released from all Guarantees, if any, by it of
other Indebtedness of the Company or any Domestic Subsidiary, (ii) with respect to any Subsidiary Guarantee created after the Issue Date, the release by the holders of the Indebtedness of the Company described in subsection (a) of this
Section 5.03 of their Guarantee by such Domestic Subsidiary (including any deemed release upon payment in full of all obligations under such Indebtedness), at such time as (A) no other Indebtedness of the Company has been guaranteed by
such Domestic Subsidiary or (B) the holders of all such other Indebtedness which is guaranteed by such Domestic Subsidiary also release their Guarantee by such Domestic Subsidiary (including any deemed release upon payment in full of all
obligations under such Indebtedness), and (iii) the Companys Domestic Subsidiaries ceasing to guarantee the Companys Credit Agreement and no Domestic Subsidiary guaranteeing any Indebtedness of the Company or any other Domestic
Subsidiary in an amount exceeding $75,000,000 (other than the Notes).
SECTION 5.04 Merger, Consolidation or Sale of Assets.
(a) The Company shall not, in a single transaction or through a series of related transactions, consolidate or merge with or into any
other Person, or, directly or indirectly, sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets to another Person, or permit any Person to merge with or into it, unless:
(i) the Company is the continuing Person or the successor Person formed by or surviving any such consolidation or merger (if other than the
Company) or to which such sale, assignment, transfer, lease or conveyance or other disposition has been made is a corporation organized and existing under the laws of the United States of America, any State thereof or the District of Columbia;
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(ii) the Person formed by or surviving any such consolidation or merger (if other than the
Company) or the Person to which such sale, assignment, transfer, lease, conveyance or other disposition has been made assumes all the obligations of the Company under the Indenture, including payment of the principal of and interest on the Notes,
and the performance and observance of all of the covenants and conditions of the Indenture to be performed by the Company, by a supplemental indenture, executed and delivered to the Trustee;
(iii) immediately after giving effect to such transaction, no Default or Event of Default shall have occurred and be continuing;
(iv) at the time of such transaction, the Company or the surviving Person shall have delivered, or caused to be delivered, to the Trustee, in
form and substance reasonably satisfactory to the Trustee, an Officers Certificate and an Opinion of Counsel, each to the effect that such consolidation, merger, sale, assignment, transfer, lease or conveyance or other transaction and the
supplemental indenture in respect thereof comply with the Indenture and that all conditions precedent therein provided for relating to such transaction have been complied with; and
(v) at the time of the transaction, each Guarantor, unless it is the other party to the transaction described above, shall have by
supplemental indenture confirmed that its Subsidiary Guarantee shall apply to such Persons obligations under the Indenture and the Notes.
In the event of any transaction (other than a lease) described in and complying with the conditions listed in the immediately preceding
paragraph in which the Company is not the continuing corporation, the successor Person formed or remaining or to which such transfer is made shall succeed to, and be substituted for, and may exercise every right and power of, the Company and the
Company will be discharged from all obligations and covenants under the Indenture and the Notes.
(b) Each Guarantor (other than any
Guarantor whose Subsidiary Guarantee is to be released in accordance with the terms of its Subsidiary Guarantee and the Indenture in connection with the sale, exchange or transfer to any Person (other than an Affiliate of the Company) of all of the
Capital Stock of such Guarantor) shall not, and the Company shall not cause or permit any Guarantor to, consolidate with or merge with or into any Person other than the Company or any other Guarantor unless:
(i) such Guarantor is the surviving corporation or the Person formed by or surviving any such consolidation or merger (if other than the
Guarantor) is a corporation organized and existing under the laws of the United States of America, any State thereof or the District of Columbia and such Person assumes by supplemental indenture all of the obligations of the Guarantor on its
Subsidiary Guarantee; and
(ii) immediately after giving effect to such transaction, no Default or Event of Default shall have occurred
and be continuing.
The successor Guarantor shall succeed to, and except in the case of a lease, be substituted for, such Guarantor under
the Indenture and such Guarantors Subsidiary Guarantee.
SECTION 5.05 Compliance Certificate. The Company shall furnish,
so long as any of the Notes are Outstanding, to the Trustee annually, within 120 days after the end of each fiscal year in which the Notes are Outstanding, a certificate from the principal executive officer, principal financial officer or principal
accounting officer as to his or her knowledge of the Companys compliance with all conditions and covenants under the Indenture (which compliance
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shall be determined without regard to any period of grace or requirement of notice provided under the Indenture). The Company shall, so long as any of the Notes are Outstanding, also deliver to
the Trustee, as soon as possible, but in no event later than five (5) Business Days after the principal executive officer, principal financial officer or principal accounting officer becomes aware of any Default or Event of Default, a
certificate specifying such Default or Event of Default. Such certificates need not comply with Section 16.01 of the Base Indenture.
ARTICLE VI
DEFAULTS AND
REMEDIES
SECTION 6.01 Events of Default.
(a) In addition to those specified in Section 7.01 of the Base Indenture, each of the following is an Event of Default with
respect to the Notes:
(i) failure by the Company to comply with the provisions of Section 4.01 or Section 5.04 of this
Supplemental Indenture;
(ii) default under any Indebtedness of the Company or any of its Subsidiaries having an aggregate amount of at
least $50.0 million constituting a default either (a) of payment of principal when due and payable (whether at scheduled maturity, upon acceleration, redemption or otherwise) or (b) which results in acceleration of the Indebtedness, and in
each case after the Company has received written notice (with a copy to the Trustee if sent by the Holders) of the default from the Trustee or from the Holders of at least 25% of the aggregate principal amount of Notes then Outstanding and
thereafter do not cure the default within 30 days;
(iii) failure by the Company or any of its Subsidiaries to pay final judgments
aggregating in excess of $50.0 million above available insurance coverage or indemnity coverage, which judgments are not paid, discharged or stayed for a period of 60 days; and
(iv) except as permitted by the Indenture, any Subsidiary Guarantee of a Significant Subsidiary of the Company is held in any judicial
proceeding to be unenforceable or invalid.
(b) Clause (c) of Section 7.01 of the Base Indenture shall not apply to the Notes.
(c) Clauses (d), (e) and (f) of Section 7.01 of the Base Indenture are deleted and replaced in their entirety by the
following:
(d) failure by the Company to comply with any of the agreements contained in the Indenture or the Notes (other than an
agreement, a default in the performance of which, is specifically handled elsewhere in this Section 6.01(a) or Section 7.01 of the Base Indenture) for 30 days after written notice is received by the Company from the Trustee or by the
Company and the Trustee from the Holders of at least 25% of the aggregate principal amount of Notes then Outstanding specifying the default (and demanding that such default be remedied);
(e) there shall have been the entry by a court of competent jurisdiction of (a) a decree or order for relief in respect of the
Company or any of its Significant Subsidiaries in an involuntary case or proceeding under any applicable Bankruptcy Law or (b) a decree or order adjudging the Company or any of its Significant Subsidiaries bankrupt or insolvent, or seeking
reorganization, arrangement, adjustment or composition of or in respect of the Company or any of its Significant Subsidiaries under any applicable federal or state law, or appointing a
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custodian, receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of the Company or any of its Significant Subsidiaries or of any substantial party of their respective
properties, or ordering the winding up or liquidation of their affairs, and any such decree or order for relief shall continue to be in effect, or any such other decree or order shall be unstayed and in effect, for a period of 60 consecutive
days;
(f) (i) the Company or any of its Significant Subsidiaries commences a voluntary case or proceeding under any
applicable Bankruptcy Law or any other case or proceeding to be adjudicated bankrupt or insolvent,
(ii) the Company or any of its
Significant Subsidiaries consents to the entry of a decree or order for relief in respect of the Company or such Significant Subsidiary in an involuntary case or proceeding under any applicable Bankruptcy Law or to the commencement of any bankruptcy
or insolvency case or proceeding against it,
(iii) the Company or any of its Significant Subsidiaries files a petition or answer or
consent seeking reorganization or relief under any applicable federal or state law,
(iv) the Company or any of its Significant
Subsidiaries (1) consents to the filing of such petition or the appointment of, or taking possession by, a custodian, receiver, liquidator, assignee, trustee, sequestrator or similar official of the Company or such Significant Subsidiary or of
any substantial part of their respective properties, (2) makes an assignment for the benefit of creditors or (3) admits in writing its inability to pay its debts generally as they become due, or
(v) the Company or any of its Significant Subsidiaries takes any corporate action in furtherance of any such actions described in this clause
(f);
ARTICLE VII
DEFEASANCE AND COVENANT DEFEASANCE; DISCHARGE
SECTION 7.01 Option to Effect Legal Defeasance or Covenant Defeasance. The Company may, at the option of its Board of Directors
evidenced by a resolution set forth in an Officers Certificate, at any time, elect to have either Section 7.02 or 7.03 of this Supplemental Indenture be applied to all Outstanding Notes and Subsidiary Guarantees upon compliance with the
conditions set forth below in this Article VII.
SECTION 7.02 Defeasance and Discharge. Upon the Companys exercise under
Section 7.01 of the option applicable to this Section 7.02, the Company shall, subject to the satisfaction of the conditions set forth in Section 7.04, be deemed to have been discharged from its obligations with respect to all
Outstanding Notes and the related Subsidiary Guarantees on the date the conditions set forth below are satisfied (hereinafter, Defeasance). For this purpose, Defeasance means that the Company, a Guarantor, if applicable, and any other
obligor under the Indenture shall be deemed to have paid and discharged the entire Indebtedness represented by the Outstanding Notes being defeased, which shall thereafter be deemed to be Outstanding only for the purposes of
Section 7.05 and the other Sections of the Indenture referred to in (a) and (b) below, and to have satisfied all its other obligations under such Notes and the Indenture (and the Trustee, on written demand of and at the expense of the
Company, shall execute proper instruments acknowledging the same), except for the following provisions which shall survive until otherwise terminated or discharged hereunder: (a) the rights of Holders of such Outstanding Notes to receive,
solely from the trust fund described in Section 7.04, and as more fully set forth
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in such Section 7.04, payments in respect of the principal of, premium, if any, and interest on such Notes when such payments are due, (b) the Companys obligations with respect to
such Notes under Article II of the Supplemental Indenture and Article III and Section 6.02 of the Base Indenture, (c) the rights, powers, trusts, duties and immunities of the Trustee hereunder and the Companys obligations in
connection therewith and (d) this Article VII. Subject to compliance with this Article VII, the Company may exercise its option under this Section 7.02 notwithstanding the prior exercise of its option under Section 7.03.
SECTION 7.03 Covenant Defeasance. Upon the Companys exercise under Section 7.01 hereof of the option applicable to this
Section 7.03, the Company and each Guarantor shall, subject to the satisfaction of the conditions set forth in Section 7.04 hereof, be released from their obligations under the covenants contained in Sections 4.01, 5.01, 5.02, 5.03, 5.04
and 5.05 of this Supplemental Indenture with respect to the Outstanding Notes, and the Events of Default set forth in Sections 6.01(a)(i), 6.01(a)(ii), 6.01(a)(iii) and 6.01(a)(iv) of this Supplemental Indenture shall cease to apply, in each case,
on and after the date the conditions set forth in Section 7.04 are satisfied (hereinafter, Covenant Defeasance), and the Notes shall thereafter be deemed not Outstanding for the purposes of any direction, waiver, consent
or declaration or act of Holders (and the consequences of any thereof) in connection with such covenants, but shall continue to be deemed Outstanding for all other purposes hereunder (it being understood that the Notes shall not be
deemed Outstanding for accounting purposes). For this purpose, Covenant Defeasance means that, with respect to the Outstanding Notes, the Company and each Guarantor may omit to comply with and shall have no liability in respect of any term,
condition or limitation set forth in any such covenant, whether directly or indirectly, by reason of any reference elsewhere herein to any such covenant or by reason of any reference in any such covenant to any other provision herein or in any other
document and such omission to comply shall not constitute a Default or an Event of Default under Section 6.01 of this Supplemental Indenture or Section 7.01 of the Base Indenture with respect to the Notes, but, except as specified above,
the remainder of the Indenture and such Notes shall be unaffected thereby.
SECTION 7.04 Conditions to Defeasance or Covenant
Defeasance. The following shall be the conditions to the application of either Section 7.02 or 7.03 of this Supplemental Indenture to the Outstanding Notes:
(a) the Company must irrevocably deposit or cause to be deposited with the Trustee, in trust, for the benefit of the Holders of such Notes,
cash in United States dollars, U.S. Government Obligations, or a combination thereof, in such amounts as will be sufficient, in the opinion of a nationally recognized firm of independent public accountants or a nationally recognized investment
banking firm, to pay and discharge the principal of, premium, if any, and interest on such Outstanding Notes on the Stated Maturity;
(b)
in the case of an election under Section 7.02 of this Supplemental Indenture, the Company shall have delivered to the Trustee an Opinion of Counsel from independent counsel in the United States stating that (A) the Company has received
from, or there has been published by, the Internal Revenue Service a ruling, or (B) since the Issue Date, there has been a change in the applicable U.S. federal income tax law, in either case to the effect that, and based thereon such Opinion
of Counsel from independent counsel in the United States shall confirm that, the beneficial owners of such Outstanding Notes will not recognize income, gain or loss for U.S. federal income tax purposes as a result of such Defeasance and will be
subject to U.S. federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Defeasance had not occurred;
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(c) in the case of an election under Section 7.03, the Company shall have delivered to the
Trustee an Opinion of Counsel from independent counsel in the United States to the effect that the beneficial owners of such Outstanding Notes will not recognize income, gain or loss for U.S. federal income tax purposes as a result of such Covenant
Defeasance and will be subject to U.S. federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Covenant Defeasance had not occurred;
(d) no Default or Event of Default shall have occurred and be continuing with respect to such Notes either (a) on the date of such
deposit (other than a Default or Event of Default solely resulting from the borrowing of funds to be applied to such deposit); or (b) insofar as clauses (e) and (f) of Section 7.01 of the Base Indenture (as amended pursuant to
Section 6.01(c) of this Supplemental Indenture) are concerned, at any time during the period ending on the 91st day after the date of deposit;
(e) such Defeasance or Covenant Defeasance shall not result in a breach or violation of, or constitute a Default under, the Indenture or any
other material agreement or instrument (other than, to the extent set forth in clause (d) above, the Indenture) to which the Company or any Guarantor is a party or by which it is bound;
(f) such Defeasance or Covenant Defeasance shall not result in the trust arising from such deposit constituting an investment company within
the meaning of the Investment Company Act of 1940, as amended, unless such trust shall be registered under such Act or exempt from registration thereunder;
(g) the Company shall have delivered to the Trustee an Opinion of Counsel from independent counsel in the United States to the effect that
after the 91st day following the date of deposit, the trust funds will not be subject to the effect of any applicable bankruptcy, insolvency, reorganization or similar laws affecting creditors rights generally;
(h) the Company shall have delivered to the Trustee an Officers Certificate stating that the deposit was not made by the Company with
the intent of preferring the Trustee, Holders of such Notes or any Subsidiary Guarantee over the other creditors of the Company or any Guarantor with the intent of defeating, hindering, delaying or defrauding creditors of the Company or any
Guarantor or others; and
(i) the Company shall have delivered to the Trustee an Officers Certificate and an Opinion of Counsel from
independent counsel in the United States, each stating that all conditions precedent relating to either the Defeasance or the Covenant Defeasance, as the case may be, have been complied with.
SECTION 7.05 Deposited Money and U.S. Government Obligations to Be Held in Trust; Other Miscellaneous Provisions.
Subject to Section 7.06 of this Supplemental Indenture, all money and non-callable U.S. Government Obligations (including the proceeds
thereof) deposited with the Trustee (or other qualifying trustee, collectively for purposes of this Section 7.05, the Trustee) pursuant to Section 7.04 of this Supplemental Indenture in respect of the Outstanding Notes being
defeased shall be held in trust and applied by the Trustee, in accordance with the provisions of such Notes and the Indenture, to the payment, either directly or through any Paying Agent (including the Company acting as Paying Agent) to the Holders
of such Notes of all sums due and to become due thereon in respect of principal, premium, if any, and interest, but such money need not be segregated from other funds except to the extent required by law.
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The Company shall pay and indemnify the Trustee against any tax, fee or other charge imposed on
or assessed against the cash or non-callable U.S. Government Obligations deposited pursuant to Section 7.04 of this Supplemental Indenture or the principal and interest received in respect thereof other than any such tax, fee or other charge
which by law is for the account of the Holders of the Outstanding Notes being defeased.
Anything in this Article VII to the contrary
notwithstanding, the Trustee shall deliver or pay to the Company from time to time upon the written request of the Company any money or non-callable U.S. Government Obligations held by it as provided in Section 7.04 of this Supplemental
Indenture which, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee (which may be the opinion delivered under Section 7.04(a) of this
Supplemental Indenture), are in excess of the amount thereof that would then be required to be deposited to effect an equivalent Defeasance or Covenant Defeasance.
SECTION 7.06 Repayment to the Company. Subject to applicable laws relating to abandoned property, any money deposited with the
Trustee or any Paying Agent, or then held by the Company, in trust for the payment of the principal of, premium, if any, or interest on any Note and remaining unclaimed for two years after such principal, and premium, if any, or interest has become
due and payable shall be paid to the Company on its written request or (if then held by the Company) shall be discharged from such trust; and the Holder of such Note shall thereafter, as a secured creditor, look only to the Company for payment
thereof, and all liability of the Trustee or such Paying Agent with respect to such trust money, and all liability of the Company as trustee thereof, shall thereupon cease.
SECTION 7.07 Reinstatement. If the Trustee or Paying Agent is unable to apply any United States dollars or non-callable U.S.
Government Obligations in accordance with Section 7.02 or 7.03 of this Supplemental Indenture, as the case may be, by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such
application, then the Companys obligations under the Indenture and the Notes theretofore defeased shall be revived and reinstated as though no deposit had occurred pursuant to Section 7.02 or 7.03 of this Supplemental Indenture until such
time as the Trustee or Paying Agent is permitted to apply all such money in accordance with such Section 7.02 or 7.03, as the case may be; provided, however, that, if the Company makes any payment of principal of, premium, if any,
or interest on any Note following the reinstatement of its obligations, the Company shall be subrogated to the rights of the Holders of such Notes to receive such payment from the money held by the Trustee or Paying Agent.
SECTION 7.08 Discharge. The Indenture will be discharged and will cease to be of further effect (except as to surviving rights of
registration of transfer or exchange of the Notes as expressly provided for in the Indenture) and the Trustee, at the expense and written direction of the Company, will execute proper instruments acknowledging satisfaction and discharge of the
Indenture as to all Outstanding Notes under the Indenture when:
(a) either:
(i) all such Notes theretofore authenticated and delivered (except lost, stolen or destroyed Notes which have been replaced or paid or Notes
whose payment has been deposited in trust or segregated and held in trust by the Company and thereafter repaid to the Company or discharged from such trust as provided for in the Indenture) have been delivered to the Trustee for cancellation, or
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(ii) all such Notes not theretofore delivered to the Trustee for cancellation (a) have
become due and payable, (b) will become due and payable at their Stated Maturity within one year or (c) are to be called for redemption within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption
by the Trustee in the name, and at the expense, of the Company;
(b) the Company or any Guarantor has irrevocably deposited or caused to
be deposited with the Trustee as trust funds in trust an amount in United States dollars sufficient to pay and discharge the entire Indebtedness on such Notes not theretofore delivered to the Trustee for cancellation, including principal of,
premium, if any, and accrued interest at such Maturity, Stated Maturity or redemption date;
(c) no Default or Event of Default shall have
occurred and be continuing on the date of such deposit or shall occur as a result of such deposit and such deposit will not result in a breach or violation of, or constitute a default under, any other material agreement to which the Company or any
Guarantor is a party or by which the Company or any Guarantor is bound;
(d) the Company or any Guarantor has paid or caused to be paid
all sums payable under the Indenture by the Company and any Guarantor;
(e) the Company has delivered irrevocable instructions to the
Trustee to apply such funds to the payment of the Notes at Maturity or redemption, as the case may be; and
(f) the Company has delivered
to the Trustee an Officers Certificate and an Opinion of Counsel each stating that all conditions precedent under the Indenture relating to the satisfaction and discharge of such Indenture have been complied with.
ARTICLE VIII
AMENDMENT,
SUPPLEMENT AND WAIVER
SECTION 8.01 Without Consent of Holders of Notes. Notwithstanding Section 8.02 of this
Supplemental Indenture, the Company, the Guarantors and the Trustee may amend or supplement the Indenture or the Notes without notice to or the consent of any Holder of a Note:
(1) to cure any ambiguity, defect or inconsistency in the Indenture or the Notes;
(2) to provide for uncertificated Notes in addition to or in place of certificated Notes;
(3) to provide for the assumption of the Companys obligations to Holders of Notes in the case of a merger or consolidation or sale of
all or substantially all of the Companys assets;
(4) to make any change that, in the good faith opinion of the Board of Directors
of the Company, would provide any additional rights or benefits to the Holders of Notes or that does not adversely affect the legal rights under the Indenture of any such Holder;
(5) to secure the Notes or to add additional Guarantors;
(6) to comply with the requirements of the SEC in order to effect or maintain the qualification of the Indenture under the Trust Indenture
Act;
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(7) to conform the text of the Indenture or the Notes to any provision of the Description
of the Notes in the Prospectus Supplement to the extent that such provision in the Description of the Notes in the Prospectus Supplement was intended to be a verbatim recitation of the Indenture, the Subsidiary Guarantees or the
Notes;
(8) to remove a Guarantor which, in accordance with the terms of the Indenture, ceases to be liable in respect of its Subsidiary
Guarantee;
(9) to add to the covenants of the Company or any Guarantor for the benefit of the Holders of Notes or to surrender any right
or power conferred upon the Company or any Guarantor;
(10) to provide for the issuance of additional Notes in accordance with the
limitations set forth in the Indenture as of the Issue Date;
(11) to comply with the provisions of the DTC or the Trustee with respect to
the provisions in the Indenture and the Notes relating to transfer and exchanges of Notes or beneficial interests in Notes; and
(12)
evidence and provide for the acceptance of appointment by a successor trustee.
SECTION 8.02 With Consent of Holders of Notes.
Except as provided below in this Section 8.02, the Company, the Guarantors and the Trustee may amend or supplement the Indenture or
the Notes and/or any Subsidiary Guarantees may be amended or supplemented (including, without limitation, consents obtained in connection with a purchase of, tender offer or exchange offer for, Notes) of the holders of at least a majority in
aggregate principal amount of Outstanding Notes affected by such modifications or amendments; and, subject to Section 7.06 of the Base Indenture, any existing Default or Event of Default (other than a Default or Event of Default in the payment
of the principal of, premium, if any, or interest on the Notes, except a payment default resulting from an acceleration that has been rescinded) or compliance with any provision of the Indenture, the Notes or the Subsidiary Guarantees may be waived
with the consent of the Holders of a majority in principal amount of the then Outstanding Notes (including consents obtained in connection with a purchase of, tender offer or exchange offer for, Notes).
Upon the written request of the Company accompanied by a resolution of its Board of Directors authorizing the execution of any such amended or
supplemental Indenture, and upon the filing with the Trustee of evidence satisfactory to the Trustee of the consent of the Holders of Notes as aforesaid, and upon receipt by the Trustee of any document requested by it pursuant to
Section 11.02(e) of the Base Indenture, the Trustee shall join with the Company and the Guarantors in the execution of such amended or supplemental Indenture and to make any further appropriate agreements and stipulations that may be therein
contained, unless such amended or supplemental Indenture directly affects the Trustees own rights, duties or immunities under the Indenture or otherwise, in which case the Trustee may in its discretion, but shall not be obligated to, enter
into such amended or supplemental Indenture.
It shall not be necessary for the consent of the Holders of Notes under this
Section 8.02 to approve the particular form of any proposed amendment or waiver, but it shall be sufficient if such consent approves the substance thereof.
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After an amendment, supplement or waiver under this Section 8.02 becomes effective, the
Company shall mail to the Holders of Notes affected thereby a notice briefly describing the amendment, supplement or waiver. Any failure of the Company to mail such notice, or any defect therein, shall not, however, in any way impair or affect the
validity of any such amended or supplemental Indenture or waiver. Subject to Section 7.06, the Holders of a majority in aggregate principal amount of the Notes then Outstanding voting as a single class may waive compliance in a particular
instance by the Company and/or the Guarantors with any provision of this Indenture, the Notes or the Subsidiary Guarantees. However, without the consent of each Holder affected, an amendment or waiver under this Section 8.02 may not (with
respect to any Notes held by a non-consenting Holder):
(1) reduce the principal amount of Notes whose Holders must consent to an
amendment, supplement or waiver;
(2) reduce the principal of or change the fixed maturity of any Note or alter the provisions with
respect to the redemption of Notes (other than provisions relating to the covenants described in Section 4.01 of this Supplemental Indenture);
(3) reduce the rate of interest on any Note other than as expressly contemplated by the Indenture or change the time for payment of interest
on any Note;
(4) waive a Default or Event of Default in the payment of principal of and interest on the Notes (except a rescission of
acceleration of the Notes by the Holders of at least a majority in aggregate principal amount of the Outstanding Notes and a waiver of the payment default that resulted from such acceleration);
(5) make any Note payable in money other than that stated in the Notes;
(6) make any change in the provisions of the Indenture relating to waivers of past Defaults or the rights of Holders of Notes to receive
payments of principal of or interest on the Notes;
(7) waive a redemption payment with respect to any Note (other than a payment required
by one of the covenants described in Section 4.01 of this Supplemental Indenture);
(8) make any change in the foregoing amendment
and waiver provisions;
(9) modify, without the written consent of the Trustee, the rights, duties or immunities of the Trustee; or
(10) release any Guarantor that is a Significant Subsidiary from its Subsidiary Guarantee, except as provided in the Indenture.
SECTION 8.03 Revocation and Effect of Consents. Until an amendment, supplement or waiver becomes effective, a consent to it by a
Holder of a Note is a continuing consent by the Holder of a Note and every subsequent Holder of a Note or portion of a Note that evidences the same debt as the consenting Holders Note, even if notation of the consent is not made on any Note.
However, any such Holder of a Note or subsequent Holder of a Note may revoke the consent as to its Note if the Trustee receives written notice of revocation before the date the waiver, supplement or amendment becomes effective. An amendment,
supplement or waiver becomes effective in accordance with its terms and thereafter binds every Holder.
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SECTION 8.04 Notation on or Exchange of Notes. The Trustee may place an appropriate
notation about an amendment, supplement or waiver on any affected Note thereafter authenticated. The Company in exchange for all affected Notes may issue and the Trustee shall, upon receipt of an authentication order, authenticate new Notes that
reflect the amendment, supplement or waiver. Failure to make the appropriate notation or issue a new Note shall not affect the validity and effect of such amendment, supplement or waiver.
SECTION 8.05 Trustee to Sign Amendments, etc. The Trustee shall sign any amended or supplemental Indenture authorized pursuant to
this Article VIII if the amendment or supplement does not in the judgment of the Trustee adversely affect the rights, duties, liabilities or immunities of the Trustee. The Company may not sign an amendment or supplemental Indenture until its Board
of Directors approves it. In executing any amended or supplemental indenture, the Trustee shall receive and (subject to Section 11.01 of the Base Indenture) shall be fully protected in conclusively relying upon an Officers Certificate and
an Opinion of Counsel stating that the execution of such amended or supplemental Indenture is authorized or permitted by this Indenture.
ARTICLE IX
GUARANTEES
SECTION 9.01 Guarantee.
Subject to this Article IX, each of the Guarantors hereby, jointly and severally, unconditionally guarantees to each Holder of a Note
authenticated and delivered by the Trustee and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of the Indenture, the Notes or the obligations of the Company hereunder or thereunder, that: (a) the
principal of, premium, if any, and interest on the Notes will be promptly paid by the Company in full when due, whether at Maturity, by acceleration, redemption or otherwise, and interest on the overdue principal of, premium, if any, and interest on
the Notes, if any, if lawful, and all other obligations of the Company to the Holders or the Trustee hereunder or thereunder will be promptly paid by the Company in full or performed by the Company, all in accordance with the terms hereof and
thereof; and (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that same will be promptly paid by the Company in full when due or performed by the Company in accordance with the terms of
the extension or renewal, whether at Stated Maturity, by acceleration or otherwise. Failing payment when due by the Company of any amount so guaranteed or any performance so guaranteed which failure continues for ten (10) days after demand
therefor is made to the Company for whatever reason, the Guarantors shall be jointly and severally obligated to pay the same immediately. Each Guarantor agrees that this is a Guarantee of payment and not a Guarantee of collection.
The Guarantors hereby agree that their obligations hereunder shall be unconditional, irrespective of the validity, regularity or
enforceability of the Notes or the Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions hereof or thereof, the recovery of any judgment against the Company, any
action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a Guarantor. Each Guarantor hereby waives diligence, presentment, demand of payment (except as specifically provided
in the preceding paragraph), filing of claims with a court in the event of insolvency or bankruptcy of the Company, any right to require a proceeding first against the Company, protest, notice and all demands (except as specifically provided in the
preceding paragraph) whatsoever and covenant
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that this Subsidiary Guarantee shall not be discharged except by complete performance of the obligations contained in the Notes and the Indenture. Each Guarantor also expressly waives, without
any requirement of any notice to or further assent by such Guarantor, to the fullest extent permitted by applicable law, the benefit of all principles or provisions of applicable law which are or might be in conflict with the terms hereof,
including, without limitation, Section 10-7-23 and Section 10-7-24 of the Official Code of Georgia Annotated.
If any Holder or
the Trustee is required by any court or otherwise to return to the Company, the Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to either the Company or the Guarantors, any amount paid by either to the
Trustee or such Holder, this Subsidiary Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect.
Each Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any obligations
guaranteed hereby until payment in full of all obligations guaranteed hereby. Each Guarantor further agrees that, as between the Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the
obligations guaranteed hereby may be accelerated as provided in Article VII of the Base Indenture and Article VI of this Supplemental Indenture for the purposes of this Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition
preventing such acceleration in respect of the obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such obligations as provided in Article VII of the Base Indenture and Article VI of this Supplemental
Indenture, such obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantors for the purpose of this Subsidiary Guarantee, failing payment when due by the Company which failure continues for ten
(10) days after demand therefor is made to the Company. The Guarantors shall have the right to seek contribution from any non-paying Guarantor so long as the exercise of such right does not impair the rights of the Holders under the Subsidiary
Guarantee.
SECTION 9.02 Limitation on Guarantor Liability. Each Guarantor, and by its acceptance of Notes, each Holder,
hereby confirms that it is the intention of all such parties that the Subsidiary Guarantee of such Guarantor not constitute a fraudulent transfer or conveyance for purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform
Fraudulent Transfer Act or any similar federal or state law to the extent applicable to any Subsidiary Guarantee. To effectuate the foregoing intention, the Trustee, the Holders and the Guarantors hereby irrevocably agree that the obligations of
such Guarantor under its Subsidiary Guarantee and this Article IX shall be limited to the maximum amount as will, after giving effect to such maximum amount and all other contingent and fixed liabilities of such Guarantor that are relevant under
such laws, and after giving effect to any collections from, rights to receive contribution from or payments made by or on behalf of any other Guarantor in respect of the obligations of such other Guarantor under this Article IX, result in the
obligations of such Guarantor under its Subsidiary Guarantee not constituting a fraudulent transfer or conveyance.
SECTION 9.03
Execution and Delivery of Guarantee.
To evidence the Subsidiary Guarantees set forth in Section 9.01 of this Supplemental
Indenture, the Company hereby agrees to cause a notation of such Subsidiary Guarantee substantially in the form of Exhibit B hereto to be endorsed by manual or facsimile signature by an officer of each Guarantor on each Note authenticated and
delivered by the Trustee. The Company shall cause all future Guarantors to execute a supplemental indenture substantially in the form of Exhibit C hereto.
33
Each Guarantor hereby agrees that its Subsidiary Guarantee set forth in Section 9.01 of this
Supplemental Indenture and in any subsequent supplemental indentures shall remain in full force and effect notwithstanding any failure to endorse on each Note a notation of such Subsidiary Guarantee.
If an officer whose signature is on any supplemental indenture or on the Subsidiary Guarantee no longer holds that office at the time the
Trustee authenticates the Note on which a Subsidiary Guarantee is endorsed, the Subsidiary Guarantee shall be valid and obligatory nevertheless.
The delivery of any Note by the Trustee, after the authentication thereof hereunder, shall constitute due delivery of the Subsidiary Guarantee
set forth in this Supplemental Indenture on behalf of the Guarantors.
In the event that the Company creates or acquires any new Domestic
Subsidiaries subsequent to the date of this Supplemental Indenture, if required by Section 5.03 of this Supplemental Indenture, the Company shall cause such Domestic Subsidiaries to execute supplemental indentures to the Indenture and
Subsidiary Guarantees in accordance with Section 5.03 of this Supplemental Indenture and this Article IX, to the extent applicable; provided that no such Subsidiary Guarantee will be required if the Companys Credit Agreement is no longer
guaranteed by Domestic Subsidiaries and the debt guaranteed by such Domestic Subsidiary does not exceed $75,000,000.
SECTION 9.04
Release of Guarantor. The Subsidiary Guarantee of a Guarantor will be released:
(a) upon any sale, exchange or transfer, to any
Person not an Affiliate of the Company, of all of the Companys Capital Stock in, or all or substantially all the assets of, such Domestic Subsidiary, which transaction is in compliance with the terms of the Indenture and such Domestic
Subsidiary is released from all guarantees, if any, by it of other Indebtedness of the Company or any Domestic Subsidiary;
(b) either
Defeasance or Covenant Defeasance occurs with respect to such Notes in compliance with Article VII of this Supplemental Indenture;
(c)
with respect to any Subsidiary Guarantees created after the Issue Date, the release by the holders of the Indebtedness of the Company described in Section 5.03(a) of this Supplemental Indenture of their Guarantee by such Domestic Subsidiary
(including any deemed release upon payment in full of all obligations under such Indebtedness), at such time as (A) no other Indebtedness of the Company has been guaranteed by such Domestic Subsidiary or (B) the holders of all such other
Indebtedness which is guaranteed by such Domestic Subsidiary also release their Guarantee by such Domestic Subsidiary (including any deemed release upon payment in full of all obligations under such Indebtedness); or
(d) upon the Companys Domestic Subsidiaries ceasing to guarantee the Companys Credit Agreement and no Domestic Subsidiary
guaranteeing any Indebtedness of the Company or any other Domestic Subsidiary in an amount exceeding $75,000,000 (other than the Notes).
The Trustee, at the expense and written direction of the Company, will execute proper instruments acknowledging the termination of such
Subsidiary Guarantee as reasonably required by the representative of such Guarantor.
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Any Guarantor not released from its obligations under its Subsidiary Guarantee shall remain
liable for the full amount of principal and premium, if any, of and interest on the Notes and for the other obligations of any Guarantor under the Indenture as provided in this Article IX.
SECTION 9.05 Acknowledgement of Manufacturers Letter Agreements. It is hereby acknowledged that the enforcement of certain
rights with respect to the Subsidiary Guarantees is subject to the terms and conditions of the Manufacturers Letter Agreements.
SECTION 9.06 Certain California Law Waivers. As used in this Section 9.06, any reference to the principal
includes the Company, and any reference to the creditor includes the Holders. In accordance with Section 2856 of the California Civil Code:
(a) each Guarantor agrees (i) to waive any and all rights of subrogation and reimbursement against the Company or against any collateral
or security granted by the Company for any of the Guarantors obligations and (ii) to withhold the exercise of any and all rights of contribution against any other guarantor of any of the Guarantors obligations and against any
collateral or security granted by any such other guarantor for any of the Guarantors obligations until the Guarantors obligations shall have been indefeasibly paid in full;
(b) each Guarantor waives any and all other rights and defenses available to the Guarantor by reason of Sections 2787 to 2855, inclusive, 2899
and 3433 of the California Civil Code, including any and all rights or defenses Guarantor may have by reason of protection afforded to the principal with respect to any of the Guarantors obligations, or to any other guarantor of any of the
Guarantors obligations with respect to any of such guarantors obligations under its guaranty, in either case pursuant to the antideficiency or other laws of the State of California limiting or discharging the principals
indebtedness or such guarantors obligations, including Section 580a, 580b, 580d, or 726 of the California Code of Civil Procedure; and
(c) each Guarantor waives all rights and defenses arising out of an election of remedies by the creditor, even though that election of
remedies, such as a nonjudicial foreclosure with respect to security for any Subsidiary Guarantee obligation, has destroyed Guarantors rights of subrogation and reimbursement against the principal by the operation of Section 580d of the
Code of Civil Procedure or otherwise; and even though that election of remedies by the creditor, such as nonjudicial foreclosure with respect to security for an obligation of any other guarantor of any of the Guarantors obligations, has
destroyed Guarantors rights of contribution against such other guarantor.
No other provision of this Article IX shall be construed
as limiting the generality of any of the covenants and waivers set forth in this Section 9.06. In accordance with Section 10.06 of this Supplemental Indenture, the Subsidiary Guarantees shall be governed by, and shall be construed and
enforced in accordance with, the internal laws of the State of New York. This Section 9.06 is included solely out of an abundance of caution, and shall not be construed to mean that any of the above-referenced provisions of California law are
in any way applicable to the Subsidiary Guarantees or to any of the Guarantors obligations.
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ARTICLE X
MISCELLANEOUS PROVISIONS
SECTION 10.01 Ratification of Base Indenture. This Supplemental Indenture is executed and shall be construed as an indenture
supplemental to the Base Indenture, and as supplemented and modified hereby, the Base Indenture is in all respects ratified and confirmed, and the Base Indenture and this Supplemental Indenture shall be read, taken and construed as one and the same
instrument.
SECTION 10.02 Conflict with Trust Indenture Act. If any provision hereof limits, qualifies or conflicts with
another provision hereof, or with a provision of the Base Indenture, which is required to be included in this Supplemental Indenture, or in the Base Indenture, respectively, by any of the provisions of the Trust Indenture Act, such required
provision shall control to the extent it is applicable.
SECTION 10.03 Conflict with Base Indenture. To the extent not
previously amended or modified by this Supplemental Indenture, the Base Indenture shall remain in full force and effect. If any provision of this Supplemental Indenture relating to the Notes is inconsistent with any provision of the Base Indenture,
the provision of this Supplemental Indenture shall control.
SECTION 10.04 Effect of Headings. The Article and Section
headings herein are for convenience only and shall not affect the construction hereof.
SECTION 10.05 Successors and Assigns.
All covenants and agreements in this Supplemental Indenture by the Company shall bind its successors and assigns, whether so expressed or not.
SECTION 10.06 Separability Clause. In case any one or more of the provisions contained in this Supplemental Indenture or in the
Notes shall for any reason be held to be invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
SECTION 10.07 GOVERNING LAW. THIS SUPPLEMENTAL INDENTURE, THE NOTES AND THE SUBSIDIARY GUARANTEES SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
SECTION 10.08 WAIVER OF JURY TRIAL. THE COMPANY, EACH
GUARANTOR AND THE TRUSTEE EACH HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY SUIT, ACTION OR OTHER PROCEEDING ARISING OUT OF OR RELATING TO THE
INDENTURE, THE NOTES, THE SUBSIDIARY GUARANTEES OR THE TRANSACTIONS CONTEMPLATED HEREBY.
SECTION 10.09 Counterparts. This
Supplemental Indenture may be executed in any number of counterparts, and each of such counterparts shall for all purposes be deemed to be an original, but all such counterparts shall together constitute one and the same instrument. The exchange of
copies of this Supplemental Indenture and of signature pages by facsimile or PDF transmission shall constitute effective execution and delivery of this Supplemental Indenture as to the parties hereto and may be used in lieu of the original Indenture
for all purposes. Signatures of the parties hereto transmitted by facsimile or PDF shall be deemed to be their original signatures for all purposes.
36
[Signature page follows]
37
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly
executed, all as of the day and year first above written.
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AUTONATION, INC. |
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By: |
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/s/ Cheryl Miller |
Name: |
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Cheryl Miller |
Title: |
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Executive Vice President and Chief Financial
Officer |
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THE GUARANTORS NAMED IN SCHEDULE 1 HERETO |
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By: |
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/s/ C. Coleman G. Edmunds |
Name: |
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C. Coleman G. Edmunds |
Title: |
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Authorized Signatory |
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WELLS FARGO BANK, NATIONAL ASSOCIATION, as Trustee |
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By: |
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/s/ Stefan Victory |
Name: |
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Stefan Victory |
Title: |
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Vice President |
EXHIBIT A
[GLOBAL NOTE LEGEND]
[THIS
GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE SUPPLEMENTAL INDENTURE GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES EXCEPT THAT
(I) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAYBE REQUIRED PURSUANT TO SECTION 4.06 OF THE BASE INDENTURE, (II) THIS GLOBAL NOTE MAYBE EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 4.06 OF THE BASE INDENTURE, (III) THIS GLOBAL
NOTE MAYBE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO SECTION 3.07 OF THE BASE INDENTURE AND (IV) THIS GLOBAL NOTE MAYBE TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF THE COMPANY.
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (DTC), TO
THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BYAN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF,
CEDE & CO., HAS AN INTEREST HEREIN.]*
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Legend to be included only for Global Notes |
A-1
[FORM OF FACE OF NOTE]
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No. |
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$[ ] |
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CUSIP No. 05329WAM4
ISIN: US05329WAM47 |
4.500% Senior Notes due 2025
AutoNation, Inc., a Delaware corporation, promises to pay to [ ], or registered assigns, the
principal sum of [ ] Dollars ($[ ]) on October 1, 2025, unless earlier redeemed or repurchased.
Interest Payment Dates: April 1 and October 1, commencing April 1, 2016.
Record Dates: March 15 and September 15.
Additional provisions of this Note are set forth on the other side of this Note.
IN WITNESS HEREOF, the Company has caused this instrument to be duly executed
Dated:
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AUTONATION, INC. |
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By: |
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Name: |
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Title: |
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Dated:
TRUSTEES CERTIFICATE OF AUTHENTICATION
WELLS FARGO BANK, NATIONAL ASSOCIATION
as Trustee, certifies that this is one of the Global Notes referred to in the within
mentioned Indenture. |
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By: |
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Authorized Signatory |
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[FORM OF REVERSE SIDE OF NOTE]
4.500% Senior Notes due 2025
Capitalized terms used herein shall have the meanings assigned to them in the Indenture referred to below unless otherwise indicated.
AutoNation, Inc. (such corporation, and its successors and assigns under the
Indenture hereinafter referred to, being herein called the Company), promises to pay interest on the principal amount of this Note at the rate per annum shown above, subject to adjustment as provided in the Indenture. The Company shall
pay interest semi-annually in arrears on April 1 and October 1 of each year, or, if such date is not a Business Day, on the next succeeding Business Day (each, an Interest Payment Date), commencing April 1, 2016.1 Interest on the Notes shall accrue from the most recent Interest Payment Date to which interest has been paid or, if no interest has been paid, from September 21, 2015.2 The Company shall pay interest on overdue principal and premium, if any, and interest on overdue installments of interest, to the extent lawful, at the interest rate for the Notes. Interest shall be
computed on the basis of a 360-day year comprised of twelve 30-day months.
The Company shall pay interest on the Notes to the Persons who are
registered Holders of Notes at the close of business on the March 15 and September 15 immediately preceding the relevant Interest Payment Date, even if such Notes are canceled after such record date and on or before such Interest Payment
Date, except with respect to defaulted interest. The Notes shall be payable as to principal, premium and interest at the office or agency of the Company maintained for such purpose within or without the City and State of New York, or, at the option
of the Company, payment of interest may be made by check mailed to the Holders at their addresses set forth in the register of Holders, and provided that payment by wire transfer of immediately available funds shall be required with respect to
principal of and interest and premium on all Global Notes and all other Notes the Holders of which shall have provided wire transfer instructions no later than 30 days immediately preceding the relevant due date for payment (or such other date as
the Trustee may accept in its judgment), to the Company or the Paying Agent. Such payment shall be in such coin or currency of the United States of America at the time of payment is legal tender for payment of public and private debts.
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Paying Agent and Registrar |
Initially, Wells Fargo Bank, National Association, the
Trustee under the Indenture, shall act as Paying Agent and Registrar. The Company may appoint and change any Paying Agent or Registrar without notice to any holder. The Company or any of its Subsidiaries may act as Paying Agent or Registrar.
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In the case of Notes issued on the Issue Date. |
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In the case of Notes issued on the Issue Date. |
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The Company issued the Notes under an Indenture dated as of April 14,
2010 (the Base Indenture), as supplemented by that Supplemental Indenture dated as of September 21, 2015 (the Supplemental Indenture and, together with the Base Indenture, the Indenture), each among the
Company, the Guarantors and the Trustee. The terms of the Notes include those stated in the Indenture and those made part of the Indenture by reference to the Trust Indenture Act of 1939, as amended (15 U.S.C. § § 77aaa-77bbbb) (the
Trust Indenture Act). Terms defined in the Indenture and not defined herein have the meanings ascribed thereto in the Indenture. The Notes are subject to all such terms, and Holders are referred to the Indenture and the Trust Indenture
Act for a statement of those terms.
The Company shall be entitled, subject to its compliance with Section 2.03(e) of the
Supplemental Indenture, to create and issue further securities having the same ranking and terms and conditions as the Notes in all respects, except for the issue date, the public offering price and, in some cases, the first Interest Payment Date.
The Notes initially issued on the Issue Date and any additional Notes shall be treated as a single class for all purposes under the Indenture.
Except as described below, the Notes will not be redeemable by the
Company prior to Maturity.
The Company shall have the right to redeem the Notes at any time in whole, or from time to time, in part at a
redemption price (the Redemption Price) equal to the greater of: (i) 100% of the principal amount of the Notes to be redeemed; and (ii) the sum of the present values of the remaining scheduled payments of principal and interest
on the Notes to be redeemed, exclusive of interest accrued to the date of redemption, discounted to the date of redemption on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Yield, plus 35 basis
points, plus accrued and unpaid interest to, but not including, the date of redemption.; provided, however, that at any time on or after July 1, 2025, the Company may redeem the Notes, at its option, in whole, or from time to time in
part, at a redemption price equal to 100% of the principal amount of the Notes to be redeemed, plus accrued and unpaid interest thereon to, but not including, the date of redemption.
The Notes called for redemption become due on the date fixed for
redemption. Notice of redemption (with a copy to the Trustee) shall be mailed at least 30 days but not more than 60 days before the Redemption Date to each Holder to be redeemed at his or her registered address.
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Repurchase at Option of Holder Upon Change of Control Repurchase Event |
If a Change of
Control Repurchase Event occurs, unless the Company has exercised its right to redeem the Notes pursuant to the Indenture, the Company shall be required to make an offer to each Holder of the Notes to repurchase all or a portion of such
Holders Notes (the Change of Control Offer), at a purchase price equal to 101% of the aggregate principal amount thereof plus accrued interest, if any, to the date of purchase (subject to the right of holders of record on the
relevant record date to receive interest due on an interest payment date that is on or prior to the date fixed for redemption). Within 30 days following the date upon which the Change of Control Repurchase Event occurred, the Company must send (with
a copy to the Trustee), by first class mail, a notice to each Holder, which notice shall govern the terms of the Change of Control Offer and shall be in compliance with the Indenture.
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Holders electing to have a Note purchased pursuant to a Change of Control Offer shall be required to surrender the Note, with the form entitled Option of Holder to Elect Purchase on
the reverse of the Note completed, to the Paying Agent at the address specified in the notice.
8. |
Denominations; Transfer; Exchange |
The Notes are in registered form without coupons in
minimum denominations of $2,000 principal and integral multiples of $1,000 in excess thereof. A Holder may register, transfer or exchange Notes in accordance with the Indenture. The Registrar may require a Holder, among other things, to furnish
appropriate endorsements or transfer documents and to pay any taxes and fees required by law or permitted by the Indenture. The Registrar need not register the transfer of or exchange any Notes selected for redemption (except, in the case of a Note
to be redeemed in part, the portion of the Note not to be redeemed) or any Notes for a period of 15 days before a selection of Notes to be redeemed.
The registered Holder of this Note may be treated as the owner
of it for all purposes.
10. |
Discharge and Defeasance |
Subject to certain conditions set forth in the Indenture, the
Company at any time shall be entitled to terminate some or all of its and the Guarantors obligations under the Notes and the Indenture if the Company deposits with the Trustee money or U.S. Government Obligations for the payment of principal,
premium, if any, and interest on the Notes to redemption or maturity, as the case may be.
The Indenture, the Subsidiary Guarantees or the Notes may be amended
or supplemented as provided in the Indenture.
12. |
Defaults and Remedies |
If any Event of Default (as defined in the Indenture) occurs and
is continuing, the Trustee or the Holders of at least 25% in principal amount of the then Outstanding Notes may declare all the Notes to be due and payable by notice in writing to the Company and the Trustee (if declared by the Holders) specifying
the respective Event of Default and that it is a notice of acceleration, and the same shall become immediately due and payable. Holders may not enforce the Indenture or the Notes except as provided in the Indenture and the Trust
Indenture Act. Subject to certain limitations, Holders of a majority in principal amount of the then Outstanding Notes may direct the Trustee in its exercise of any trust or power. However, the Trustee may refuse to follow any direction that
conflicts with law or the Indenture or that the Trustee determines may be unduly prejudicial to the rights of other Holders of Notes or that may involve the Trustee in personal liability. The Company is required to deliver to the Trustee annually a
statement regarding compliance with the Indenture, and the Company is required upon becoming aware of any Default or Event of Default, to deliver to the Trustee a statement specifying such Default or Event of Default.
A-6
The full and punctual payment by the Company of the principal of, premium,
if any, and interest on the Notes is fully and unconditionally guaranteed on a joint and several senior unsecured basis by each of the Guarantors. Reference is hereby made to the Indenture for a statement of the respective rights, limitations of
rights, duties and obligations thereunder of the Guarantors, the Trustee and the Holders.
14. |
Trustee Dealings with the Company |
Subject to certain limitations imposed by the Trust
Indenture Act, the Trustee under the Indenture, in its individual or any other capacity, may become the owner or pledgee of Notes and may otherwise deal with and collect obligations owed to it by the Company or its Affiliates and may make loans to,
accept deposits from, and perform services for the Company or its Affiliates, and may otherwise deal with the Company or its Affiliates, as if it were not the Trustee.
15. |
No Recourse Against Others |
Any past, present, or future director, officer, employee,
incorporator or stockholder, as such, of the Company, any Guarantors or the Trustee shall not have any liability for any obligations of the Company or any Guarantor under the Notes, the Indenture, the Subsidiary Guarantees or for any claim based on,
in respect of or by reason of such obligations or their creation. By accepting a Note, each Holder waives and releases all such liability. The waiver and release are part of the consideration for the issue of the Notes.
This Note shall not be valid until an authorized signatory of the
Trustee (or an authenticating agent) signs the certificate of authentication on the other side of this Note.
Customary abbreviations may be used in the name of a Holder or an
assignee, such as TEN COM (=tenants in common), TEN ENT (=tenants by the entireties), JT TEN (=joint tenants with rights of survivorship and not as tenants in common), CUST (=custodian), and U/G/M/A (=Uniform Gift to Minors Act).
18. |
CUSIP and ISIN Numbers |
Pursuant to a recommendation promulgated by the Committee on
Uniform Security Identification Procedures the Company has caused CUSIP and ISIN numbers to be printed on the Notes and has directed the Trustee to use CUSIP and ISIN numbers in notices of redemption as a convenience to Holders. No representation is
made as to the accuracy of such numbers either as printed on the Notes or as contained in any notice of redemption and reliance may be placed only on the other identification numbers placed thereon.
THE LAWS OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED TO CONSTRUE
THIS NOTE.
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The Company shall furnish to any Holder upon written request and without charge to the Holder a
copy of the Indenture. Requests may be made to:
AutoNation, Inc.
200 SW 1st Ave
Fort Lauderdale, FL 33301
Attention: Legal Department
Facsimile No.: 954-769-6340
A-8
ASSIGNMENT FORM
To assign this Note, fill in the form below:
(I) or (we)
assign and transfer this Note to
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(Print or type assignees name, address and zip code) |
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(Insert assignees soc. sec. or tax I.D. No.) |
and irrevocably, appoint agent
to transfer this Note on the books of the Company. The agent may substitute another to act for him.
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Date: |
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Your Signature: |
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(Sign exactly as your name appears on the other side of this Note.) |
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Signature |
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Signature Guarantee: |
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Signature must be guaranteed |
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(Signatures must be guaranteed by a participant in a recognized Signature Medallion Program or other signature
guarantor program reasonably acceptable to the Trustee.)
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OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Company pursuant to Section 4.01 of the Supplemental Indenture check the
box: ¨
If you want to elect to have only part of this Note purchased by the
Company pursuant to Section 4.01 of the Supplemental Indenture, state the amount you elect to have purchased: $
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Dated: |
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Your Signature: |
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(Sign exactly as your name appears on the other side of this Note.) |
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Signature Guarantee: |
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(Signature must be guaranteed) |
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(Signatures must be guaranteed by a participant in a recognized Signature Medallion Program or other signature
guarantor program reasonably acceptable to the Trustee.)
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[TO BE ATTACHED TO GLOBAL NOTES]
SCHEDULE OF EXCHANGES OR INTERESTS IN GLOBAL NOTE
The following increases or decreases in this Global Note have been made:
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Date of
Exchange |
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Amount of
decrease in Principal
amount of this Global Note |
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Amount of
increase in Principal
amount of this Global Note |
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Principal amount
of this Global Note
following such decrease or
increase |
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Signature of
authorized signatory
of Trustee or Custodian |
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A-11
EXHIBIT B
FORM OF GUARANTEE
For
value received, each Guarantor (which term includes any successor Person under the Indenture), jointly and severally, unconditionally guarantees, to the extent set forth in and subject to the provisions in the Indenture, dated as of April 14,
2010 (the Base Indenture), as supplemented by that Supplemental Indenture dated as of September 21, 2015 (the Supplemental Indenture and together with the Base Indenture, the Indenture), among AutoNation,
Inc., as issuer (the Company), the Guarantors from time to time party thereto and Wells Fargo Bank, National Association, as trustee (the Trustee), (a) the full and punctual payment of the principal of and interest on
the Notes when due, whether at maturity, by acceleration, redemption or otherwise, and all other monetary obligations of the Company under the Indenture and the Notes and (b) the full and punctual performance within applicable grace periods of
all other obligations of the Company under the Indenture and the Notes (all the foregoing being hereinafter collectively called the Guaranteed Obligations). Each Guarantor further agrees that the Guaranteed Obligations may be extended or
renewed, in whole or in part, without notice or further assent from such Guarantor and that such Guarantor shall remain bound hereunder notwithstanding any extension or renewal of any Guaranteed Obligation.
The obligations of the Guarantors to the Holders of Notes and to the Trustee pursuant to the Guarantee and the Indenture are expressly set
forth in Article IX of the Supplemental Indenture and reference is hereby made such provisions for the precise terms of the Guarantee. Each Holder, by accepting the same agrees to and shall be bound by such provisions. This Guarantee is subject to
release as and to the extent set forth in Sections 7.02, 7.08 and 9.04 of the Supplemental Indenture. The terms of the Indenture, including, without limitation, Article IX of the Supplemental Indenture, are incorporated herein by reference. The laws
of the State of New York shall govern and be used to construe this Guarantee. Capitalized terms used herein and not defined are used herein as so defined in the Indenture.
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[GUARANTOR] |
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By: |
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Name: |
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Title: |
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EXHIBIT C
FORM OF SUPPLEMENTAL INDENTURE
SUPPLEMENTAL INDENTURE (this Supplemental Indenture), dated as of
, among AutoNation, Inc., a Delaware corporation (the Company),
(the Guaranteeing Subsidiary), a subsidiary of AutoNation, Inc. (or its permitted successor) and Wells Fargo
Bank, National Association, as trustee under the indenture referred to below (the Trustee).
W I T N E S S E T H
WHEREAS, the Company and the Guarantors named therein have heretofore executed and delivered to the Trustee the Indenture, dated as of
April 14, 2010 (the Base Indenture), as supplemented by that Supplemental Indenture dated as of September 21, 2015 (the Supplemental Indenture and, together with the Base Indenture, the Indenture),
providing for the issuance of 4.500% Senior Notes due 2025 (the Notes);
WHEREAS, the Indenture provides that the Guaranteeing
Subsidiary shall execute and deliver to the Trustee a supplemental indenture pursuant to which the Guaranteeing Subsidiary shall unconditionally guarantee all of the Companys obligations under the Notes and the Indenture on the terms and
conditions set forth herein (the Guarantee); and
WHEREAS, pursuant to Section 8.01 of the Supplemental Indenture, the
Trustee is authorized to execute and deliver this Supplemental Indenture.
NOW THEREFORE, in consideration of the foregoing and for other
good and valuable consideration, the receipt of which is hereby acknowledged, the Company, the Guaranteeing Subsidiary and the Trustee mutually covenant and agree for the equal and ratable benefit of the Holders of the Notes as follows:
1. Capitalized Terms. Capitalized terms used herein without definition shall have the meanings assigned to them in the Indenture.
2. Agreement to Guarantee. The Guaranteeing Subsidiary hereby agrees as follows:
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(a) |
To jointly and severally Guarantee to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of the Indenture,
the Notes or the obligations of the Company hereunder or thereunder, that: |
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(i) |
the principal of and interest on the Notes shall be promptly paid by the Company in full when due, whether at maturity, by acceleration, redemption or otherwise, and interest on the overdue principal of and interest on
the Notes, if any, if lawful, and all other obligations of the Company to the Holders or the Trustee hereunder or thereunder shall be promptly paid by the Company in full or performed by the Company, all in accordance with the terms hereof and
thereof; and |
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(ii) |
in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that same shall be promptly paid by the Company in full when due or performed by the Company in accordance with the
terms of the extension or renewal, whether at stated maturity, by acceleration or otherwise. Failing payment when due by the Company of any amount so guaranteed or any performance so guaranteed which failure continues for three days after demand
therefor is made to the Company for whatever reason, the Guarantors shall be jointly and severally obligated to pay the same immediately. Each Guarantor agrees that this is a guarantee of payment and not a guarantee of collection. |
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The obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or the Indenture, the absence of any action to enforce the same, any waiver or consent by any
Holder of the Notes with respect to any provisions hereof or thereof, the recovery of any judgment against the Company, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or
defense of a Guarantor. |
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(c) |
The following is hereby waived: diligence, presentment, demand of payment (except as specifically provided in (a) above), filing of claims with a court in the event of insolvency or bankruptcy of the Company, any
right to require a proceeding first against the Company, protest, notice and all demands (except as specifically provided in (a) above) whatsoever. |
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This Guarantee shall not be discharged except (i) by complete performance of the obligations contained in the Notes and the Indenture. Each Guarantor also expressly waives, without any requirement of any notice to
or further assent by such Guarantor, to the fullest extent permitted by applicable law, the benefit of all principles or provisions of applicable law which are or might be in conflict with the terms hereof, including, without limitation,
Section 10-7-23 and Section 10-7-24 of the Official Code of Georgia Annotated. |
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(e) |
If any Holder or the Trustee is required by any court or otherwise to return to the Company, the Guarantors, or any Custodian, Trustee, liquidator or other similar official acting in relation to either the Company or
the Guarantors, any amount paid by either to the Trustee or such Holder, this Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect. |
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The Guaranteeing Subsidiary shall not be entitled to any right of subrogation in relation to the Holders in respect of any obligations guaranteed hereby until payment in full of all obligations guaranteed hereby.
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(g) |
As between the Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the obligations guaranteed
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hereby may be accelerated as provided in Article VII of the Base Indenture for the purposes of this Guarantee, notwithstanding any stay, injunction or other prohibition preventing such
acceleration in respect of the obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such obligations as provided in Article VII of the Base Indenture, such obligations (whether or not due and payable) shall
forthwith become due and payable by the Guarantors for the purpose of this Guarantee, failing payment when due by the Company which failure continues for three days after demand therefor is made to the Company. |
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The Guarantors shall have the right to seek contribution from any non-paying Guarantor so long as the exercise of such right does not impair the rights of the Holders under the Guarantee. |
3. Guaranteeing Subsidiary May Consolidate, Etc. on Certain Terms. Each Guaranteeing Subsidiary agrees that, unless its Guarantee is
being concurrently released in conformity with Section 9.04 of the Supplemental Indenture, it may not consolidate with or merge with or into any Person other than the Company or any other Guarantor unless (a) the Guaranteeing Subsidiary
will be the surviving corporation or the Person formed by or surviving any such consolidation or merger (if other than the Guarantor) is a corporation organized and existing under the laws of the United States of America, any State thereof or the
District of Columbia and such Person assumes by supplemental indenture all of the obligations of the Guaranteeing Subsidiary on its Guarantee and (b) immediately after giving effect to such transaction, no Default or Event of Default shall have
occurred and be continuing.
4. Execution and Delivery. Each Guaranteeing Subsidiary agrees that the Guarantees shall remain in
full force and effect notwithstanding any failure to endorse on each Note a notation of such Guarantee.
5. Releases. The Guarantee
of the Guaranteeing Subsidiary shall be released in accordance with the provisions set forth in the Indenture, including, without limitation, Section 9.04 of the Supplemental Indenture. The Trustee, at the expense and written direction of the
Company, will execute proper instruments acknowledging the termination of such Subsidiary Guarantee as reasonably required by the representative of such Guarantor. Any Guarantor not released from its obligations under its Guarantee shall remain
liable for the full amount of principal of and interest on the Notes and for the other obligations of any Guarantor under the Indenture as provided in Article IX of the Supplemental Indenture.
6. No Recourse Against Others. No director, officer, employee, incorporator, stockholder or agent of the Guaranteeing Subsidiary, as
such, shall have any liability for any obligations of the Company or any Guaranteeing Subsidiary under the Notes, the Indenture, any Guarantees or this Supplemental Indenture or for any claim based on, in respect of, or by reason of, such
obligations or their creation. Each Holder of Notes by accepting a Note waives and releases all such liability. The waiver and release are part of the consideration for issuance of the Notes. Such waiver may not be effective to waive liabilities
under the federal securities laws.
7. NEW YORK LAW TO GOVERN. THE INTERNAL LAW OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED
TO CONSTRUE THIS SUPPLEMENTAL INDENTURE.
8. WAIVER OF JURY TRIAL. THE COMPANY, THE GUARANTEEING SUBSIDIARY AND THE TRUSTEE EACH
HEREBY IRREVOCABLE WAIVES, TO THE FULLEST
C-3
EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY SUIT, ACTION, OR OTHER PROCEEDING ARISING OUT OF OR RELATING TO THIS SUPPLEMENTAL INDENTURE,
THE GUARANTEE OF THE GUARANTEEING SUBSIDIARY OR THE TRANSACTIONS CONTEMPLATED HEREBY.
9. Counterparts. The parties may sign any
number of copies of this Supplemental Indenture. Each signed copy shall be an original, but all of them together represent the same agreement. The exchange of copies of this Supplemental Indenture and of signature pages by facsimile or PDF
transmission shall constitute effective execution and delivery of this Supplemental Indenture as to the parties hereto and may be used in lieu of the original Supplemental Indenture for all purposes. Signatures of the parties hereto transmitted by
facsimile or PDF shall be deemed to be their original signatures for all purposes.
10. Effect of Headings. The Section headings
herein are for convenience only and shall not affect the construction hereof.
11. The Trustee. The Trustee shall not be
responsible in any manner whatsoever for or in respect of the validity, legality or sufficiency of this Supplemental Indenture or for or in respect of the recitals contained herein, all of which recitals are made solely by the Guaranteeing
Subsidiary and the Company.
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IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly
executed and attested, all as of the date first above written.
Dated:
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[GUARANTEEING SUBSIDIARY] |
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By: |
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Name: |
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Title: |
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AUTONATION, INC. |
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By: |
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Name: |
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Title: |
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WELLS FARGO BANK, National Association, as Trustee |
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By: |
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Name: |
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Title |
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EXHIBIT D
FORM OF AFFIDAVIT OF OUT-OF-STATE EXECUTION
STATE OF NEW YORK
COUNTY OF NEW YORK
I hereby certify that on this day of
, , before me, an officer duly authorized in the County and State aforesaid to take acknowledgments, personally
appeared [Name], as [Title] of AutoNation, Inc., a Delaware corporation (the Company), and as [Title] or authorized signatory of each of the subsidiaries of the Company party to the hereinafter defined Indenture (the
Guarantors), who is personally known to me or who has produced as identification, who did/did not take an
oath, who is known to me to be the person who executed the Supplemental Indenture, dated as of September 21, 2015 (the Supplemental Indenture), by and among the Company, the Guarantors and Wells Fargo Bank, National Association., as
trustee (the Trustee), to which this Affidavit is attached on behalf of the Company and on behalf of each of the Guarantors in New York, New York, and who acknowledged before me that be executed the same. As used herein,
Indenture has the meaning set forth in the Supplemental Indenture.
D-1
EXHIBIT E
FORM OF AFFIDAVIT OF OUT OF STATE RECEIPT AND ACCEPTANCE
STATE OF NEW YORK)
COUNTY OF NEW YORK)
Before me this day personally appeared
(Affiant), who being personally sworn, deposes and says that:
1. Affiant is a [Title] of Wells Fargo Bank, National Association, as trustee (the Trustee) under the Indenture, dated as of
April 14, 2010 (the Base Indenture), as supplemented by that Supplemental Indenture, dated as of September 21, 2015 (the Supplemental Indenture and, together with the Base Indenture, the Indenture), by
and among AutoNation, Inc., a Delaware corporation (the Company), the subsidiaries of the Company party thereto (the Guarantors) and the Trustee.
2. The Supplemental Indenture was executed in the City of New York, and the State of New York by [Name] as [Title] of the Company and as
[Title] or authorized signatory of each of the Guarantors.
3. On the date hereof, Affiant received delivery of and accepted the
Supplemental Indenture on behalf of the Trustee and on behalf of the Underwriters within the City of New York, and the State of New York.
FURTHER AFFIANT
SAYETH NOT.
Dated: , 20
E-1
THE FOREGOING instrument was acknowledged before me this day of
, , by
, who is personally known to me or who has produced
as identification and who did/did not take an oath.
This should be included only if the Note is issued in global form.
E-2
Schedule I
Guarantors
7 Rod Real Estate North, a
Limited Liability Company
7 Rod Real Estate South, a Limited Liability Company
Abraham Chevrolet-Miami, Inc.
Abraham Chevrolet-Tampa, Inc.
ACER Fiduciary, Inc.
AL F-L Motors, LLC
Albert Berry Motors, Inc.
Allison Bavarian
Allison Bavarian Holding, LLC
All-State Rent A Car, Inc.
American Way Motors, Inc.
AN Cadillac of WPB, LLC
AN Central Region Management, LLC
AN Chevrolet - Arrowhead, Inc.
AN CJ Valencia, Inc.
AN Collision Center FTL South, Inc.
AN Collision Center of Addison, Inc.
AN Collision Center of
Las Vegas, Inc.
AN Collision Center of North Houston, Inc.
AN Collision Center of Sarasota, Inc.
AN Collision Center of
Tempe, Inc.
AN Corporate Management Payroll Corp.
AN Corpus
Christi GP, LLC
AN Corpus Christi Imports Adv. GP, LLC
AN
Corpus Christi Imports Adv., LP
AN Corpus Christi Imports GP, LLC
AN Corpus Christi Imports II GP, LLC
AN Corpus Christi Imports
II, LP
AN Corpus Christi Imports, LP
AN Corpus Christi
Motors, Inc.
AN Corpus Christi T. Imports GP, LLC
AN Corpus
Christi T. Imports, LP
AN County Line Ford, Inc.
AN
Dealership Holding Corp.
AN F. Imports of Atlanta, LLC
AN
F. Imports of Hawthorne Holding, LLC
AN F. Imports of Hawthorne, LLC
AN F. Imports of North Denver, LLC
AN F. Imports of North Phoenix, Inc.
AN F. Imports of Roseville
Holding, LLC
AN F. Imports of Roseville, Inc.
AN Florida
Region Management, LLC
AN Fort Myers Imports, LLC
AN
Fremont Luxury Imports, Inc.
AN H. Imports of Atlanta, LLC
AN Imports of Ft. Lauderdale, Inc.
AN Imports of Seattle, Inc.
AN Imports of Spokane, Inc.
AN Imports of Stevens Creek
Holding, LLC
AN Imports of Stevens Creek, Inc.
AN Imports
on Weston Road, Inc.
AN Luxury Imports GP, LLC
AN Luxury
Imports Holding, LLC
AN Luxury Imports of Coconut Creek, Inc.
AN Luxury Imports of Marietta, LLC
AN Luxury Imports of Palm
Beach, Inc.
AN Luxury Imports of Pembroke Pines, Inc.
AN
Luxury Imports of Phoenix, Inc.
AN Luxury Imports of San Diego, Inc.
AN Luxury Imports of Sanford, LLC
AN Luxury Imports of Sarasota,
Inc.
AN Luxury Imports of Spokane, Inc.
AN Luxury Imports
of Tucson, Inc.
AN Luxury Imports, Ltd.
AN Motors of
Brooksville, Inc.
AN Motors of Dallas, Inc.
AN Motors of
Delray Beach, Inc.
AN Motors of Englewood, Inc.
AN Motors
of Ft. Lauderdale, Inc.
AN Motors of Memphis, Inc.
AN
Motors of Pembroke, LLC
AN Motors of Scottsdale, LLC
AN
Motors on Federal Highway, LLC
AN Motors on South Padre, Ltd.
AN Pontiac GMC Houston North GP, LLC
AN Pontiac GMC Houston
North, LP
AN San Jose Luxury Imports Holdings, LLC
AN San
Jose Luxury Imports, Inc.
AN Seattle Motors, Inc.
AN Subaru Motors, Inc.
AN T. Imports of Atlanta, LLC
AN Texas Region Management, Ltd.
AN Tucson Imports, LLC
AN Valencia Auto Imports, Inc.
AN West Central Region
Management, LLC
AN Western Region Management, LLC
AN/CF
Acquisition Corp.
AN/GMF, Inc.
AN/KPBG Motors, Inc.
AN/MF Acquisition Corp
AN/MNI Acquisition Corp.
AN/PF Acquisition Corp.
Anderson Chevrolet
Anderson Chevrolet Los Gatos, Inc.
Anderson Cupertino, Inc.
Appleway Chevrolet, Inc.
Atrium Restaurants, Inc.
Auto Ad Agency, Inc.
Auto Car Holding, LLC
Auto Car, Inc.
Auto Company IX, Inc.
Auto Company VI, Inc.
Auto Company VII, Inc.
Auto Company VIII, Inc.
Auto Company X, Inc.
Auto Company XI, Inc.
Auto Company XII, Inc.
Auto Company XIII, Inc.
Auto Company XIV, Inc.
Auto Company XIX, Inc.
Auto Company XL, Inc.
Auto Company XLI, Inc.
Auto Company XLII, Inc.
Auto Company XLIII, Inc.
Auto Company XLIV, Inc.
Auto Company XLV, Inc.
Auto Company XVII, Inc.
Auto Company XVIII, Inc.
Auto Company XXI, Inc.
Auto Company XXII, Inc.
Auto Company XXIII, Inc.
Auto Company XXIV, Inc.
Auto Company XXIX, Inc.
Auto Company XXV, Inc.
Auto Company XXVI, Inc.
Auto Company XXVII, Inc.
Auto Company XXVIII, Inc.
Auto Company XXX, Inc.
Auto Company XXXI, Inc.
Auto Company XXXII, Inc.
Auto Company XXXIII, Inc.
Auto Company XXXIV, Inc.
Auto Company XXXIX, Inc.
Auto Company XXXV, Inc.
Auto Company XXXVI, Inc.
Auto Company XXXVII, Inc.
Auto Company XXXVIII, Inc.
Auto Dealership III, LLC
Auto Dealership IV, LLC
Auto Dealership IX, LLC
Auto Dealership V, LLC
Auto Dealership VI, LLC
Auto Dealership VII, LLC
Auto Dealership VIII, LLC
Auto Dealership X, LLC
Auto Dealership XIX, LLC
Auto Dealership XX, LLC
Auto Dealership XXI, LLC
Auto Dealership XXII, LLC
Auto Dealership XXIII, LLC
Auto Dealership XXIV, LLC
Auto Dealership XXIX, LLC
Auto Dealership XXV, LLC
Auto Dealership XXVI, LLC
Auto Dealership XXVII, LLC
Auto Dealership XXVIII, LLC
Auto Dealership XXX, LLC
Auto Holding, LLC
Auto Mission Holding, LLC
Auto Mission Ltd.
Auto West, Inc.
Autohaus Holding, Inc.
AutoNation Benefits Company, Inc.
AutoNation Corporate Management, LLC
AutoNation Direct Nevada,
Inc.
AutoNation Enterprises Incorporated
AutoNation
Financial Services, LLC
AutoNation Fort Worth Motors, Ltd.
AutoNation GM GP, LLC
AutoNation Holding Corp.
AutoNation Imports of Katy GP, LLC
AutoNation Imports of Katy,
L.P.
AutoNation Imports of Lithia Springs, LLC
AutoNation
Imports of Longwood, Inc.
AutoNation Imports of Palm Beach, Inc.
AutoNation Imports of Winter Park, Inc.
AutoNation Motors
Holding Corp.
AutoNation Motors of Lithia Springs, Inc.
AutoNation North Texas Management GP, LLC
AutoNation Northwest
Management, LLC
AutoNation Orlando Venture Holdings, Inc.
AutoNation Realty Corporation
AutoNation USA of Perrine, Inc.
AutoNation V. Imports of Delray Beach, LLC
AutoNation.com,
Inc.
Bankston Auto, Inc.
Bankston Chrysler Jeep of Frisco,
L.P.
Bankston CJ GP, LLC
Bankston Ford of Frisco, Ltd. Co.
Bankston Nissan in Irving, Inc.
Bankston Nissan Lewisville
GP, LLC
Bankston Nissan Lewisville, Ltd.
Bargain Rent-A-Car
Batfish, LLC
BBCSS, Inc.
Beach City Chevrolet Company, Inc.
Beach City Holding, LLC
Beacon Motors, Inc.
Bell Motors, LLC
Bellevue Automotive, Inc.
Bengal Motor Company, Ltd.
Bengal Motors, Inc.
Bill Ayares Chevrolet, LLC
Bledsoe Dodge, LLC
Bob Townsend Ford, Inc.
Body Shop Holding Corp.
BOSC Automotive Realty, Inc.
Brown & Brown Chevrolet -
Superstition Springs, LLC
Brown & Brown Chevrolet, Inc.
Brown & Brown Nissan Mesa, LLC
Brown & Brown
Nissan, Inc.
Buick Mart Limited Partnership
Bull Motors,
LLC
C. Garrett, Inc.
Carlisle Motors, LLC
Carwell Holding, LLC
Carwell, LLC
Centennial Automotive, LLC
Cerritos Body Works Holding, LLC
Cerritos Body Works, Inc.
Champion Chevrolet Holding, LLC
Champion Chevrolet, LLC
Champion Ford, Inc.
Charlie Hillard, Inc.
Charlie Thomas Chevrolet GP, LLC
Charlie Thomas Chevrolet, Ltd.
Charlie Thomas Chrysler-Plymouth,
Inc.
Charlie Thomas Courtesy GP, LLC
Charlie Thomas
Courtesy Leasing, Inc.
Charlie Thomas F. GP, LLC
Charlie
Thomas Ford, Ltd.
Charlie Thomas` Courtesy Ford, Ltd.
Chesrown Auto, LLC
Chesrown Chevrolet, LLC
Chesrown Collision Center, Inc.
Chesrown Ford, Inc.
Chevrolet World, Inc.
Chuck Clancy Ford of Marietta, LLC
CJ Valencia Holding, LLC
Coastal Cadillac, Inc.
Consumer Car Care Corporation
Contemporary Cars, Inc.
Cook-Whitehead Ford, Inc.
Corporate Properties Holding, Inc.
Corpus Christi Collision
Center, Inc.
Costa Mesa Cars Holding, LLC
Costa Mesa Cars,
Inc.
Courtesy Auto Group, Inc.
Courtesy Broadway, LLC
Covington Pike Motors, Inc.
CT Intercontinental GP, LLC
CT Intercontinental, Ltd.
CT Motors, Inc.
D/L Motor Company
Deal Dodge of Des Plaines, Inc.
Dealership Properties, Inc.
Dealership Realty Corporation
Desert Buick-GMC Trucks, L.L.C.
Desert Chrysler-Plymouth, Inc.
Desert Dodge, Inc.
Desert GMC, L.L.C.
Dobbs Ford of Memphis, Inc.
Dobbs Ford, Inc.
Dobbs Mobile Bay, Inc.
Dobbs Motors of Arizona, Inc.
Don Mealey Chevrolet, Inc.
Don Mealey Imports, Inc.
Don-A-Vee Jeep Eagle, Inc.
Driver`s Mart Worldwide, Inc.
Eastgate Ford, Inc.
Ed Mullinax Ford, LLC
Edgren Motor Company, Inc.
Edgren Motor Holding, LLC
El Monte Imports Holding, LLC
El Monte Imports, Inc.
El Monte Motors Holding, LLC
El Monte Motors, Inc.
Emich Subaru West, LLC
Empire Services Agency, Inc.
Financial Services GP, LLC
Financial Services, Ltd.
First Team Automotive Corp.
First Team Ford of Manatee, Ltd.
First Team Ford, Ltd
First Team Jeep Eagle, Chrysler-Plymouth, Ltd.
First Team
Management, Inc.
Fit Kit Holding, LLC
Fit Kit, Inc.
Florida Auto Corp.
Ford of Kirkland, Inc.
Fox Chevrolet, LLC
Fox Motors, LLC
Fred Oakley Motors, Inc.
Fremont Luxury Imports Holding, LLC
Ft. Lauderdale Nissan, Inc.
G.B. Import Sales &
Service Holding, LLC
G.B. Import Sales & Service, LLC
GA CDJR Motors, LLC
GA Columbus Imports, LLC
GA F Imports, LLC
GA H Imports, LLC
GA HY Imports, LLC
Gene Evans Ford, LLC
George Sutherlin Nissan, LLC
Government Boulevard Motors, Inc.
Gulf Management, Inc.
Hayward Dodge, Inc.
Hillard Auto Group, Inc.
Hollywood Imports Limited, Inc.
Hollywood Kia, Inc.
Horizon Chevrolet, Inc.
House of Imports Holding, LLC
House of Imports, Inc.
Houston Auto M. Imports Greenway, Ltd.
Houston Auto M. Imports
North, Ltd.
Houston Imports Greenway GP, LLC
Houston
Imports North GP, LLC
HV Collision, LLC
HVA Imports, LLC
HVM Imports, LLC
HVS Motors, LLC
HVVW Motors, LLC
Irvine Imports Holding, LLC
Irvine Imports, Inc.
Irvine Toyota/Nissan/Volvo Limited Partnership
Jemautco, Inc.
Jerry Gleason Chevrolet, Inc.
Jerry Gleason Dodge, Inc.
Jim Quinlan Chevrolet Co.
Joe MacPherson Ford
Joe MacPherson Imports No. I
Joe MacPherson Infiniti
Joe MacPherson Infiniti Holding, LLC
Joe MacPherson Oldsmobile
John M. Lance Ford, LLC
J-R Advertising Company
J-R Motors Company North
J-R Motors Company South
JRJ Investments, Inc.
Kenyon Dodge, Inc.
Kings Crown Ford, Inc.
Kirkland Motors, Inc.
L.P. Evans Motors WPB, Inc.
L.P. Evans Motors, Inc.
Lance Children, Inc.
Leesburg Imports, LLC
Leesburg Motors, LLC
Les Marks Chevrolet, Inc.
Lew Webb`s Ford, Inc.
Lew Webbs Irvine Nissan Holding, LLC
Lew Webbs
Irvine Nissan, Inc.
Lewisville Imports GP, LLC
Lewisville
Imports, Ltd.
Lot 4 Real Estate Holdings, LLC
Luxury
Orlando Imports, Inc.
MacHoward Leasing
MacHoward Leasing
Holding, LLC
MacPherson Enterprises, Inc.
Magic Acquisition
Corp.
Magic Acquisition Holding, LLC
Maitland Luxury
Imports, Inc.
Marks Family Dealerships, Inc.
Marks
Transport, Inc.
MC/RII, LLC
Mealey Holdings, Inc.
Metro Chrysler Jeep, Inc.
Midway Chevrolet, Inc.
Mike Hall Chevrolet, Inc.
Mike Shad Chrysler Plymouth Jeep Eagle, Inc.
Mike Shad Ford,
Inc.
Miller-Sutherlin Automotive, LLC
Mission Blvd. Motors,
Inc.
Mr. Wheels Holding, LLC
Mr. Wheels, Inc.
Mullinax East, LLC
Mullinax Ford North Canton, Inc.
Mullinax Ford South, Inc.
Mullinax Lincoln-Mercury, Inc.
Mullinax Used Cars, Inc.
Naperville Imports, Inc.
Newport Beach Cars Holding, LLC
Newport Beach Cars, LLC
Nichols Ford, Ltd.
Nichols GP, LLC
Nissan of Brandon, Inc.
Northpoint Chevrolet, LLC
Northwest Financial Group, Inc.
Ontario Dodge, Inc.
Oxnard Venture Holdings, Inc.
Payton-Wright Ford Sales, Inc.
Pembroke Motors, Inc.
Peyton Cramer Automotive
Peyton Cramer Automotive Holding, LLC
Peyton Cramer F. Holding,
LLC
Peyton Cramer Ford
Peyton Cramer Infiniti
Peyton Cramer Infiniti Holding, LLC
Peyton Cramer Jaguar
Peyton Cramer Lincoln-Mercury
Peyton Cramer LM Holding, LLC
Pierce Automotive Corporation
Pierce, LLC
Pitre Chrysler-Plymouth-Jeep of Scottsdale, Inc.
Plains
Chevrolet GP, LLC
Plains Chevrolet, Ltd.
PMWQ, Inc.
PMWQ, Ltd.
Port
City Imports, Inc.
Prime Auto Resources, Inc.
Quality
Nissan GP, LLC
Quality Nissan, Ltd.
Quinlan Motors, Inc.
R. Coop Limited
R.L. Buscher II, Inc.
R.L. Buscher III, Inc.
Real Estate Holdings, Inc.
Renton H Imports, Inc.
Republic DM Property Acquisition Corp.
Republic Resources Company
Republic Risk Management
Services, Inc.
Resources Aviation, Inc.
RI Merger Corp.
RI/BB Acquisition Corp.
RI/BBNM Acquisition Corp.
RI/BRC Real Estate Corp.
RI/DM Acquisition Corp.
RI/Hollywood Nissan Acquisition Corp.
RI/LLC Acquisition Corp.
RI/RMC Acquisition GP, LLC
RI/RMC Acquisition, Ltd.
RI/RMP Acquisition Corp.
RI/RMT Acquisition GP, LLC
RI/RMT Acquisition, Ltd.
RI/WFI Acquisition Corporation
RKR Motors, Inc.
Roseville Motor Corporation
Roseville Motor Holding, LLC
Sahara Imports, Inc.
Sahara Nissan, Inc.
Saul Chevrolet Holding, LLC
SCM Realty, Inc.
Shamrock F. Holding, LLC
Shamrock Ford, Inc.
Six Jays LLC
SMI Motors Holding, LLC
SMI Motors, Inc.
South Broadway Motors, LLC
Southwest Motors of Denver, LLC
Spitfire Properties, Inc.
Star Motors, LLC
Steakley Chevrolet GP, LLC
Steakley Chevrolet, Ltd.
Steeplechase Motor Company
Steve Moore Chevrolet Delray, LLC
Steve Moore Chevrolet, LLC
Steve Moores Buy-Right
Auto Center, Inc.
Stevens Creek Holding, LLC
Stevens Creek
Luxury Imports Holding, LLC
Stevens Creek Luxury Imports, Inc.
Stevens Creek Motors, Inc.
Sunrise Nissan of Jacksonville, Inc.
Sunrise Nissan of Orange Park, Inc.
Sunset Pontiac-GMC
Truck South, Inc.
Sunset Pontiac-GMC, Inc.
Superior Nissan,
Inc.
Sutherlin Chrysler-Plymouth Jeep-Eagle, LLC
Sutherlin
H. Imports, LLC
Sutherlin Imports, LLC
Sutherlin Nissan,
LLC
Sutherlin Town Center, Inc.
Tartan Advertising, Inc.
Tasha Incorporated
Terry York Motor Cars Holding, LLC
Terry York Motor Cars, Ltd.
Texan Ford Sales, Ltd.
Texan Ford, Inc.
Texan Sales GP, LLC
Texas Management Companies LP, LLC
The Consulting Source, Inc.
The Pierce Corporation II, Inc.
Tinley Park A. Imports,
Inc.
Tinley Park J. Imports, Inc.
Tinley Park V. Imports,
Inc.
TN CDJR Motors, LLC
TN F Imports, LLC
Torrance Nissan Holding, LLC
Torrance Nissan, LLC
Tousley Ford, Inc.
Toyota Cerritos Limited Partnership
Triangle Corporation
T-West Sales & Service, Inc.
Valencia Auto Imports Holding, LLC
Valencia B. Imports Holding,
LLC
Valencia B. Imports, Inc.
Valencia Dodge
Valencia Dodge Holding, LLC
Valencia H. Imports Holding, LLC
Valencia H. Imports, Inc.
Valley Chevrolet, LLC
Vanderbeek Motors Holding, LLC
Vanderbeek Motors, Inc.
Vanderbeek Olds/GMC Truck, Inc.
Vanderbeek Truck Holding, LLC
Village Motors, LLC
Vince Wiese Chevrolet, Inc.
Vince Wiese Holding, LLC
W.O. Bankston Nissan, Inc.
Wallace Dodge, LLC
Wallace Ford, LLC
Wallace Lincoln-Mercury, LLC
Wallace Nissan, LLC
Webb Automotive Group, Inc.
West Colorado Motors, LLC
West Colton Cars, Inc.
West Side Motors, Inc.
Westgate Chevrolet GP, LLC
Westgate Chevrolet, Ltd.
Westmont A. Imports, Inc.
Westmont B. Imports, Inc.
Westmont M. Imports, Inc.
Woody Capital Investment Company II
Woody Capital Investment Company III
Working Mans
Credit Plan, Inc.
Exhibit 5.1
[Letterhead of Skadden, Arps, Slate, Meagher & Flom LLP]
September 21, 2015
AutoNation, Inc.
200 SW 1st Avenue
Fort Lauderdale, FL 33301
Registration Statement on
Form S-3 (File No. 333-193972)
Ladies and Gentlemen:
We have acted as special counsel to AutoNation, Inc., a Delaware corporation (the Company), in connection with the public
offering of (i) $300,000,000 aggregate principal amount of the Companys 3.350% Senior Notes due 2021 (the 2021 Notes), including the guarantees thereof (the 2021 Notes Guarantees) by the subsidiary
guarantors of the Company listed on Schedule I hereto (the Guarantors), which will be issued under the Indenture, dated as of April 14, 2010 (the Base Indenture), between the Company and Wells Fargo Bank,
National Association, as trustee (the Trustee), as supplemented and amended, with respect to the 2021 Notes, by the Supplemental Indenture, dated as of the date hereof, by and among the Company, the Guarantors and the Trustee (the
2021 Notes Supplemental Indenture and, together with the Base Indenture, the 2021 Notes Indenture) and (ii) $450,000,000 aggregate principal amount of the Companys 4.500% Senior Notes due 2025 (the
2025 Notes and, together with the 2021 Notes, the Notes), including the guarantees thereof (together with the 2021 Guarantees, the Guarantees) by the Guarantors, which will be issued under the Base
Indenture, as supplemented and amended, with respect to the 2025 Notes, by the Supplemental Indenture, dated as of the date hereof, by and among the Company, the Guarantors and the Trustee (the 2025 Notes Supplemental Indenture
and, together with the Base Indenture, the 2025 Notes Indenture and, together with the 2021 Notes Indenture, the Indentures). The Notes and the Guarantees are collectively referred to herein as the
Securities).
This opinion is being furnished in accordance with the requirements of Item 601(b)(5) of Regulation
S-K under the Securities Act of 1933 (the Securities Act).
AutoNation, Inc.
September 21, 2015
Page 2
In rendering the opinions stated herein, we have examined and relied upon the following:
(a) the registration statement on Form S-3 (File No. 333-193972) of the Company relating to the Securities and other securities of the
Company filed with the Securities and Exchange Commission (the Commission) on February 14, 2014 under the Securities Act allowing for delayed offerings pursuant to Rule 415 of the General Rules and Regulations under the
Securities Act (the Rules and Regulations), including information deemed to be a part of the registration statement pursuant to Rule 430B of the Rules and Regulations (such registration statement being hereinafter referred to as
the Registration Statement);
(b) executed copies of the Indentures;
(c) the certificate of Andrew Wamser, Treasurer and Vice President Investor Relations of the Company, dated the date hereof, setting forth the
terms of the Securities issued under the Indenture;
(d) an executed copy of the Underwriting Agreement, dated September 16, 2015
(the Underwriting Agreement), among the Company, the Guarantors and J.P. Morgan Securities LLC, Merrill Lynch, Pierce, Fenner & Smith Incorporated, Wells Fargo Securities LLC and SunTrust Robinson Humphrey, Inc., as
representatives of the several underwriters named therein;
(e) the forms of global certificates evidencing the Notes (the Note
Certificates) included in the Indentures;
(f) a copy of the Certificate of Incorporation of the Company, certified by the
Secretary of State of the State of Delaware as of August 18, 2015, and by the Assistant Secretary of the Company;
(g) a copy of the
Bylaws of the Company, as amended and in effect as of the date hereof, as certified by the Assistant Secretary of the Company; and
(h)
copies of certain resolutions of the Board of Directors of the Company, dated February 11, 2014 and September 11, 2015, and resolutions of the Pricing Committee thereof, dated September 16, 2015, as certified by the Assistant
Secretary of the Company.
We have also examined originals or copies, certified or otherwise identified to our satisfaction, of such
records of the Company and the Guarantors and such agreements, certificates and receipts of public officials, certificates of officers or other representatives of the Company and the Guarantors and others, and such other documents as we have deemed
necessary or appropriate as a basis for the opinions stated below.
In our examination, we have assumed the genuineness of all signatures,
including endorsements, the legal capacity and competency of all natural persons, the authenticity of all documents submitted to us as originals, the conformity to original documents of all documents submitted to us as facsimile, electronic,
certified or photostatic copies, and the authenticity of the originals of such copies. As to any facts relevant to the opinions stated herein that we did not independently establish or verify, we have relied upon statements and representations of
officers and other representatives of the Company, the Guarantors and others and of public officials.
AutoNation, Inc.
September 21, 2015
Page 3
We do not express any opinion with respect to the laws of any jurisdiction other than
(i) the laws of the State of New York and (ii) only with respect to the Company, the General Corporation Law of the State of Delaware, and to the extent that judicial or regulatory orders or decrees or consents, approvals, licenses,
authorizations, validations, filings, recordings or registrations with governmental authorities are relevant, to those required under such laws (all of the foregoing being referred to as Opined on Law). We do not express any
opinion as to the effect of any law (other than Opined on Law) on the opinions stated herein. Insofar as the opinions expressed herein relate to matters governed by laws other than Opined on Law, we have assumed, without having made any independent
investigation, that such laws do not affect the opinions set forth herein. The opinions expressed herein are based on laws in effect on the date hereof, which laws are subject to change with possible retroactive effect, and we disclaim any
undertaking to advise you of any subsequent changes in the facts stated or assumed herein or of any subsequent changes in applicable laws.
The Indentures and the Note Certificates are referred to herein together as the Transaction Agreements.
Based upon the foregoing and subject to the qualifications and assumptions stated herein, we are of the opinion that:
1. When the Note Certificates are duly authenticated by the Trustee and issued and delivered by the Company against payment therefor in
accordance with the terms of the Underwriting Agreement and the Indentures, the Notes will constitute the valid and binding obligations of the Company, enforceable against the Company in accordance with their terms under the laws of the State of New
York.
2. When the Note Certificates are issued and delivered by the Company against payment therefor in accordance with the terms of the
Underwriting Agreement and the Indentures, the Guarantees will constitute the valid and binding obligations of the Guarantors, enforceable against the Guarantors in accordance with their terms under the laws of the State of New York.
The opinions stated herein are subject to the following qualifications:
(a) the opinions stated herein are limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer, preference
and other similar laws affecting creditors rights generally, and by general principles of equity (regardless of whether enforcement is sought in equity or at law);
(b) except to the extent expressly stated in the opinions contained herein, we do not express any opinion with respect to the effect on the
opinions stated herein of (i) the
AutoNation, Inc.
September 21, 2015
Page 4
compliance or noncompliance of any party to any of the Transaction Agreements with any laws, rules or regulations applicable to such party or (ii) the legal status or legal capacity of any
party to any of the Transaction Agreements;
(c) except to the extent expressly stated in the opinions contained herein, we have assumed
that each of the Transaction Agreements constitutes the valid and binding obligation of each party to such Transaction Agreements, enforceable against such party in accordance with its terms;
(d) we do not express any opinion with respect to the enforceability of Section 9.01 of the 2021 Notes Supplemental Indenture or
Section 9.01 of the 2025 Notes Supplemental Indenture to the extent that such sections provide that the obligations of the Guarantors are absolute and unconditional irrespective of the enforceability or genuineness of the 2021 Notes Indenture
or the 2025 Notes Indenture, as applicable, or the effect thereof on the opinions herein stated;
(e) we do not express any opinion with
respect to the enforceability of the provisions contained in Section 9.02 of the 2021 Notes Supplemental Indenture or Section 9.02 of the 2025 Notes Supplemental Indenture to the extent that such provisions limit the obligation of the
Guarantors under the 2021 Notes Indenture or the 2025 Notes Indenture, as applicable, or any right of contribution of any party with respect to the obligations under the 2021 Notes Indenture or the 2025 Notes Indenture, as applicable;
(f) in rendering the opinion set forth in paragraph 1 above, we have assumed that the Trustees certificate of authentication of the Note
Certificates have been manually signed by one of the Trustees authorized officers and that the Note Certificates conform to the specimens thereof examined by us; and
(g) to the extent that any opinion relates to the enforceability of the choice of New York law and choice of New York forum provisions
contained in any Transaction Agreement, the opinions stated herein are subject to the qualification that such enforceability may be subject to, in each case, (i) the exceptions and limitations in New York General Obligations Law sections 5-1401
and 5-1402 and (ii) principles of comity or constitutionality.
In addition, in rendering the foregoing opinions we have assumed
that:
(a) each Guarantor (i) is duly incorporated or formed, as applicable, and is validly existing and in good standing,
(ii) has requisite legal status and legal capacity under the laws of the jurisdiction of its organization or formation, as applicable, and (iii) has complied and will comply with all aspects of the laws of the jurisdiction of its
organization or formation, as applicable, in connection with the transactions contemplated by, and the performance of its obligations under, the Transaction Agreements to which such Guarantor is a party;
AutoNation, Inc.
September 21, 2015
Page 5
(b) each Guarantor has the corporate, limited liability company or limited partnership, as
applicable, power and authority to execute, deliver and perform all its obligations under each of the Transaction Agreements to which such Guarantor is a party;
(c) each of the Transaction Agreements to which each Guarantor is party has been duly authorized, executed and delivered by all requisite
corporate, limited liability company or limited partnership, as applicable, action on the part of such Guarantor;
(d) except to the
extent expressly stated in the opinions contained herein with respect to the Company or the Guarantors, neither the execution and delivery by the Company or the Guarantors of the Transaction Agreements nor the performance by the Company or the
Guarantors of its obligations under each of the Transaction Agreements: (i) conflicts or will conflict with the Organizational Documents of the Company or the organizational documents of any Guarantors, (ii) constitutes or will constitute
a violation of, or a default under, any lease, indenture, instrument or other agreement to which the Company or any Guarantor or its property is subject, (iii) contravenes or will contravene any order or decree of any governmental authority to
which the Company or any Guarantor or its property is subject, or violates or will violate any law, rule or regulation to which the Company or any Guarantor or its property is subject; and
(e) except to the extent expressly stated in the opinions contained herein with respect to the Company or the Guarantors, neither the
execution and delivery by the Company or the Guarantors of the Transaction Agreements nor the nor the enforceability of each of the Transaction Agreements against the Company or the Guarantors requires or will require the consent, approval,
licensing or authorization of, or any filing, recording or registration with, any governmental authority under any law, rule or regulation of any jurisdiction.
We hereby consent to the filing of this opinion with the Commission as an exhibit to the Companys Current Report on Form 8-K being filed
on the date hereof and incorporated by reference into the Registration Statement. We also hereby consent to the use of our name under the heading Legal Matters in the prospectus forming a part of the Registration Statement. In giving
this consent, we do not thereby admit that we are within the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Commission promulgated thereunder.
Very truly yours,
/s/ Skadden, Arps, Slate, Meagher & Flom LLP
SCHEDULE I
GUARANTORS
7 Rod Real Estate North, a
Limited Liability Company
7 Rod Real Estate South, a Limited Liability Company
Abraham Chevrolet-Miami, Inc.
Abraham Chevrolet-Tampa, Inc.
ACER Fiduciary, Inc.
AL F-L Motors, LLC
Albert Berry Motors, Inc.
Allison Bavarian
Allison Bavarian Holding, LLC
All-State Rent A Car, Inc.
American Way Motors, Inc.
AN Cadillac of WPB, LLC
AN Central Region Management, LLC
AN ChevroletArrowhead,
Inc.
AN CJ Valencia, Inc.
AN Collision Center FTL South,
Inc.
AN Collision Center of Addison, Inc.
AN Collision
Center of Las Vegas, Inc.
AN Collision Center of North Houston, Inc.
AN Collision Center of Sarasota, Inc.
AN Collision Center of
Tempe, Inc.
AN Corporate Management Payroll Corp.
AN Corpus
Christi GP, LLC
AN Corpus Christi Imports Adv. GP, LLC
AN
Corpus Christi Imports Adv., LP
AN Corpus Christi Imports GP, LLC
AN Corpus Christi Imports II GP, LLC
AN Corpus Christi Imports
II, LP
AN Corpus Christi Imports, LP
AN Corpus Christi
Motors, Inc.
AN Corpus Christi T. Imports GP, LLC
AN Corpus
Christi T. Imports, LP
AN County Line Ford, Inc.
AN Dealership Holding Corp.
AN F. Imports of Atlanta, LLC
AN F. Imports of Hawthorne
Holding, LLC
AN F. Imports of Hawthorne, LLC
AN F. Imports
of North Denver, LLC
AN F. Imports of North Phoenix, Inc.
AN F. Imports of Roseville Holding, LLC
AN F. Imports of
Roseville, Inc.
AN Florida Region Management, LLC
AN Fort
Myers Imports, LLC
AN Fremont Luxury Imports, Inc.
AN H.
Imports of Atlanta, LLC
AN Imports of Ft. Lauderdale, Inc.
AN Imports of Seattle, Inc.
AN Imports of Spokane, Inc.
AN Imports of Stevens Creek Holding, LLC
AN Imports of Stevens
Creek, Inc.
AN Imports on Weston Road, Inc.
AN Luxury
Imports GP, LLC
AN Luxury Imports Holding, LLC
AN Luxury
Imports of Coconut Creek, Inc.
AN Luxury Imports of Marietta, LLC
AN Luxury Imports of Palm Beach, Inc.
AN Luxury Imports of
Pembroke Pines, Inc.
AN Luxury Imports of Phoenix, Inc.
AN
Luxury Imports of San Diego, Inc.
AN Luxury Imports of Sanford, LLC
AN Luxury Imports of Sarasota, Inc.
AN Luxury Imports of
Spokane, Inc.
AN Luxury Imports of Tucson, Inc.
AN Luxury
Imports, Ltd.
AN Motors of Brooksville, Inc.
AN Motors of
Dallas, Inc.
AN Motors of Delray Beach, Inc.
AN Motors of
Englewood, Inc.
AN Motors of Ft. Lauderdale, Inc.
AN Motors
of Memphis, Inc.
AN Motors of Pembroke, LLC
AN Motors of Scottsdale, LLC
AN Motors on Federal Highway, LLC
AN Motors on South Padre, Ltd.
AN Pontiac GMC Houston North
GP, LLC
AN Pontiac GMC Houston North, LP
AN San Jose Luxury
Imports Holdings, LLC
AN San Jose Luxury Imports, Inc.
AN
Seattle Motors, Inc.
AN Subaru Motors, Inc.
AN T. Imports
of Atlanta, LLC
AN Texas Region Management, Ltd.
AN Tucson
Imports, LLC
AN Valencia Auto Imports, Inc.
AN West Central
Region Management, LLC
AN Western Region Management, LLC
AN/CF Acquisition Corp.
AN/GMF, Inc.
AN/KPBG Motors, Inc.
AN/MF Acquisition Corp
AN/MNI Acquisition Corp.
AN/PF Acquisition Corp.
Anderson Chevrolet
Anderson Chevrolet Los Gatos, Inc.
Anderson Cupertino, Inc.
Appleway Chevrolet, Inc.
Atrium Restaurants, Inc.
Auto Ad Agency, Inc.
Auto Car Holding, LLC
Auto Car, Inc.
Auto Company IX, Inc.
Auto Company VI, Inc.
Auto Company VII, Inc.
Auto Company VIII, Inc.
Auto Company X, Inc.
Auto Company XI, Inc.
Auto Company XII, Inc.
Auto Company XIII, Inc.
Auto Company XIV, Inc.
Auto Company XIX, Inc.
Auto Company XL, Inc.
Auto Company XLI, Inc.
Auto Company XLII, Inc.
Auto Company XLIII, Inc.
Auto Company XLIV, Inc.
Auto Company XLV, Inc.
Auto Company XVII, Inc.
Auto Company XVIII, Inc.
Auto Company XXI, Inc.
Auto Company XXII, Inc.
Auto Company XXIII, Inc.
Auto Company XXIV, Inc.
Auto Company XXIX, Inc.
Auto Company XXV, Inc.
Auto Company XXVI, Inc.
Auto Company XXVII, Inc.
Auto Company XXVIII, Inc.
Auto Company XXX, Inc.
Auto Company XXXI, Inc.
Auto Company XXXII, Inc.
Auto Company XXXIII, Inc.
Auto Company XXXIV, Inc.
Auto Company XXXIX, Inc.
Auto Company XXXV, Inc.
Auto Company XXXVI, Inc.
Auto Company XXXVII, Inc.
Auto Company XXXVIII, Inc.
Auto Dealership III, LLC
Auto Dealership IV, LLC
Auto Dealership IX, LLC
Auto Dealership V, LLC
Auto Dealership VI, LLC
Auto Dealership VII, LLC
Auto Dealership VIII, LLC
Auto Dealership X, LLC
Auto Dealership XIX, LLC
Auto Dealership XX, LLC
Auto Dealership XXI, LLC
Auto Dealership XXII, LLC
Auto Dealership XXIII, LLC
Auto Dealership XXIV, LLC
Auto Dealership XXIX, LLC
Auto Dealership XXV, LLC
Auto Dealership XXVI, LLC
Auto Dealership XXVII, LLC
Auto Dealership XXVIII, LLC
Auto Dealership XXX, LLC
Auto Holding, LLC
Auto Mission Holding, LLC
Auto Mission Ltd.
Auto West, Inc.
Autohaus Holding, Inc.
AutoNation Benefits Company, Inc.
AutoNation Corporate Management, LLC
AutoNation Direct Nevada,
Inc.
AutoNation Enterprises Incorporated
AutoNation
Financial Services, LLC
AutoNation Fort Worth Motors, Ltd.
AutoNation GM GP, LLC
AutoNation Holding Corp.
AutoNation Imports of Katy GP, LLC
AutoNation Imports of Katy,
L.P.
AutoNation Imports of Lithia Springs, LLC
AutoNation
Imports of Longwood, Inc.
AutoNation Imports of Palm Beach, Inc.
AutoNation Imports of Winter Park, Inc.
AutoNation Motors
Holding Corp.
AutoNation Motors of Lithia Springs, Inc.
AutoNation North Texas Management GP, LLC
AutoNation Northwest
Management, LLC
AutoNation Orlando Venture Holdings, Inc.
AutoNation Realty Corporation
AutoNation USA of Perrine, Inc.
AutoNation V. Imports of Delray
Beach, LLC
AutoNation.com, Inc.
Bankston Auto, Inc.
Bankston Chrysler Jeep of Frisco, L.P.
Bankston CJ GP, LLC
Bankston Ford of Frisco, Ltd. Co.
Bankston Nissan in Irving,
Inc.
Bankston Nissan Lewisville GP, LLC
Bankston Nissan
Lewisville, Ltd.
Bargain Rent-A-Car
Batfish, LLC
BBCSS, Inc.
Beach City Chevrolet Company, Inc.
Beach City Holding, LLC
Beacon Motors, Inc.
Bell Motors, LLC
Bellevue Automotive, Inc.
Bengal Motor Company, Ltd.
Bengal Motors, Inc.
Bill Ayares Chevrolet, LLC
Bledsoe Dodge, LLC
Bob Townsend Ford, Inc.
Body Shop Holding Corp.
BOSC Automotive Realty, Inc.
Brown & Brown Chevrolet -
Superstition Springs, LLC
Brown & Brown Chevrolet, Inc.
Brown & Brown Nissan Mesa, LLC
Brown & Brown
Nissan, Inc.
Buick Mart Limited Partnership
Bull Motors,
LLC
C. Garrett, Inc.
Carlisle Motors, LLC
Carwell Holding, LLC
Carwell, LLC
Centennial Automotive, LLC
Cerritos Body Works Holding, LLC
Cerritos Body Works, Inc.
Champion Chevrolet Holding, LLC
Champion Chevrolet, LLC
Champion Ford, Inc.
Charlie Hillard, Inc.
Charlie Thomas Chevrolet GP, LLC
Charlie Thomas Chevrolet, Ltd.
Charlie Thomas Chrysler-Plymouth,
Inc.
Charlie Thomas Courtesy GP, LLC
Charlie Thomas
Courtesy Leasing, Inc.
Charlie Thomas F. GP, LLC
Charlie
Thomas Ford, Ltd.
Charlie Thomas Courtesy Ford, Ltd.
Chesrown Auto, LLC
Chesrown Chevrolet, LLC
Chesrown Collision Center, Inc.
Chesrown Ford, Inc.
Chevrolet World, Inc.
Chuck Clancy Ford of Marietta, LLC
CJ Valencia Holding, LLC
Coastal Cadillac, Inc.
Consumer Car Care Corporation
Contemporary Cars, Inc.
Cook-Whitehead Ford, Inc.
Corporate Properties Holding, Inc.
Corpus Christi Collision Center, Inc.
Costa Mesa Cars
Holding, LLC
Costa Mesa Cars, Inc.
Courtesy Auto Group,
Inc.
Courtesy Broadway, LLC
Covington Pike Motors, Inc.
CT Intercontinental GP, LLC
CT Intercontinental, Ltd.
CT Motors, Inc.
D/L Motor Company
Deal Dodge of Des Plaines, Inc.
Dealership Properties, Inc.
Dealership Realty Corporation
Desert Buick-GMC Trucks, L.L.C.
Desert Chrysler-Plymouth, Inc.
Desert Dodge, Inc.
Desert GMC, L.L.C.
Dobbs Ford of Memphis, Inc.
Dobbs Ford, Inc.
Dobbs Mobile Bay, Inc.
Dobbs Motors of Arizona, Inc.
Don Mealey Chevrolet, Inc.
Don Mealey Imports, Inc.
Don-A-Vee Jeep Eagle, Inc.
Drivers Mart Worldwide, Inc.
Eastgate Ford, Inc.
Ed Mullinax Ford, LLC
Edgren Motor Company, Inc.
Edgren Motor Holding, LLC
El Monte Imports Holding, LLC
El Monte Imports, Inc.
El Monte Motors Holding, LLC
El Monte Motors, Inc.
Emich Subaru West, LLC
Empire Services Agency, Inc.
Financial Services GP, LLC
Financial Services, Ltd.
First Team Automotive Corp.
First Team Ford of Manatee, Ltd.
First Team Ford, Ltd
First Team Jeep Eagle, Chrysler - Plymouth, Ltd.
First Team
Management, Inc.
Fit Kit Holding, LLC
Fit Kit, Inc.
Florida Auto Corp.
Ford of Kirkland, Inc.
Fox Chevrolet, LLC
Fox Motors, LLC
Fred Oakley Motors, Inc.
Fremont Luxury Imports Holding, LLC
Ft. Lauderdale Nissan, Inc.
G.B. Import Sales & Service Holding, LLC
G.B.
Import Sales & Service, LLC
GA CDJR Motors, LLC
GA
Columbus Imports, LLC
GA F Imports, LLC
GA H Imports, LLC
GA HY Imports, LLC
Gene Evans Ford, LLC
George Sutherlin Nissan, LLC
Government Boulevard Motors, Inc.
Gulf Management, Inc.
Hayward Dodge, Inc.
Hillard Auto Group, Inc.
Hollywood Imports Limited, Inc.
Hollywood Kia, Inc.
Horizon Chevrolet, Inc.
House of Imports Holding, LLC
House of Imports, Inc.
Houston Auto M. Imports Greenway, Ltd.
Houston Auto M. Imports
North, Ltd.
Houston Imports Greenway GP, LLC
Houston
Imports North GP, LLC
HV Collision, LLC
HVA Imports, LLC
HVM Imports, LLC
HVS Motors, LLC
HVVW Motors, LLC
Irvine Imports Holding, LLC
Irvine Imports, Inc.
Irvine Toyota/Nissan/Volvo Limited
Partnership
Jemautco, Inc.
Jerry Gleason Chevrolet, Inc.
Jerry Gleason Dodge, Inc.
Jim Quinlan Chevrolet Co.
Joe MacPherson Ford
Joe MacPherson Imports No. I
Joe MacPherson Infiniti
Joe MacPherson Infiniti Holding, LLC
Joe MacPherson Oldsmobile
John M. Lance Ford, LLC
J-R Advertising Company
J-R Motors Company North
J-R Motors Company South
JRJ Investments, Inc.
Kenyon Dodge, Inc.
Kings Crown Ford, Inc.
Kirkland Motors, Inc.
L.P. Evans Motors WPB, Inc.
L.P. Evans Motors, Inc.
Lance Children, Inc.
Leesburg Imports, LLC
Leesburg Motors, LLC
Les Marks Chevrolet, Inc.
Lew Webbs Ford, Inc.
Lew Webbs Irvine Nissan
Holding, LLC
Lew Webbs Irvine Nissan, Inc.
Lewisville
Imports GP, LLC
Lewisville Imports, Ltd.
Lot 4 Real Estate
Holdings, LLC
Luxury Orlando Imports, Inc.
MacHoward
Leasing
MacHoward Leasing Holding, LLC
MacPherson
Enterprises, Inc.
Magic Acquisition Corp.
Magic Acquisition
Holding, LLC
Maitland Luxury Imports, Inc.
Marks Family
Dealerships, Inc.
Marks Transport, Inc.
MC/RII, LLC
Mealey Holdings, Inc.
Metro Chrysler Jeep, Inc.
Midway Chevrolet, Inc.
Mike Hall Chevrolet, Inc.
Mike Shad Chrysler Plymouth Jeep
Eagle, Inc.
Mike Shad Ford, Inc.
Miller-Sutherlin
Automotive, LLC
Mission Blvd. Motors, Inc.
Mr. Wheels
Holding, LLC
Mr. Wheels, Inc.
Mullinax East, LLC
Mullinax Ford North Canton, Inc.
Mullinax Ford South, Inc.
Mullinax Lincoln-Mercury, Inc.
Mullinax Used Cars, Inc.
Naperville Imports, Inc.
Newport Beach Cars Holding, LLC
Newport Beach Cars, LLC
Nichols Ford, Ltd.
Nichols GP, LLC
Nissan of Brandon, Inc.
Northpoint Chevrolet, LLC
Northwest Financial Group, Inc.
Ontario Dodge, Inc.
Oxnard Venture Holdings, Inc.
Payton-Wright Ford Sales, Inc.
Pembroke Motors, Inc.
Peyton Cramer Automotive
Peyton Cramer Automotive Holding, LLC
Peyton Cramer F. Holding, LLC
Peyton Cramer Ford
Peyton Cramer Infiniti
Peyton Cramer Infiniti Holding, LLC
Peyton Cramer Jaguar
Peyton Cramer Lincoln-Mercury
Peyton Cramer LM Holding, LLC
Pierce Automotive Corporation
Pierce, LLC
Pitre Chrysler-Plymouth-Jeep of Scottsdale, Inc.
Plains Chevrolet GP, LLC
Plains Chevrolet, Ltd.
PMWQ, Inc.
PMWQ, Ltd.
Port City Imports, Inc.
Prime Auto Resources, Inc.
Quality Nissan GP, LLC
Quality Nissan, Ltd.
Quinlan Motors, Inc.
R. Coop Limited
R.L. Buscher II, Inc.
R.L. Buscher III, Inc.
Real Estate Holdings, Inc.
Renton H Imports, Inc.
Republic DM Property Acquisition Corp.
Republic Resources Company
Republic Risk Management
Services, Inc.
Resources Aviation, Inc.
RI Merger Corp.
RI/BB Acquisition Corp.
RI/BBNM Acquisition Corp.
RI/BRC Real Estate Corp.
RI/DM Acquisition Corp.
RI/Hollywood Nissan Acquisition Corp.
RI/LLC Acquisition Corp.
RI/RMC Acquisition GP, LLC
RI/RMC Acquisition, Ltd.
RI/RMP Acquisition Corp.
RI/RMT Acquisition GP, LLC
RI/RMT Acquisition, Ltd.
RI/WFI Acquisition Corporation
RKR Motors, Inc.
Roseville Motor Corporation
Roseville Motor Holding, LLC
Sahara Imports, Inc.
Sahara Nissan, Inc.
Saul Chevrolet Holding, LLC
SCM Realty, Inc.
Shamrock F. Holding, LLC
Shamrock Ford, Inc.
Six Jays LLC
SMI Motors Holding, LLC
SMI Motors, Inc.
South Broadway Motors, LLC
Southwest Motors of Denver, LLC
Spitfire Properties, Inc.
Star Motors, LLC
Steakley Chevrolet GP, LLC
Steakley Chevrolet, Ltd.
Steeplechase Motor Company
Steve Moore Chevrolet Delray, LLC
Steve Moore Chevrolet, LLC
Steve Moores Buy-Right Auto Center, Inc.
Stevens
Creek Holding, LLC
Stevens Creek Luxury Imports Holding, LLC
Stevens Creek Luxury Imports, Inc.
Stevens Creek Motors, Inc.
Sunrise Nissan of Jacksonville, Inc.
Sunrise Nissan of
Orange Park, Inc.
Sunset Pontiac-GMC Truck South, Inc.
Sunset Pontiac-GMC, Inc.
Superior Nissan, Inc.
Sutherlin Chrysler-Plymouth Jeep-Eagle, LLC
Sutherlin H.
Imports, LLC
Sutherlin Imports, LLC
Sutherlin Nissan, LLC
Sutherlin Town Center, Inc.
Tartan Advertising, Inc.
Tasha Incorporated
Terry York Motor Cars Holding, LLC
Terry York Motor Cars, Ltd.
Texan Ford Sales, Ltd.
Texan Ford, Inc.
Texan Sales GP, LLC
Texas Management Companies LP, LLC
The Consulting Source, Inc.
The Pierce Corporation II, Inc.
Tinley Park A. Imports, Inc.
Tinley Park J. Imports, Inc.
Tinley Park V. Imports, Inc.
TN CDJR Motors, LLC
TN F Imports, LLC
Torrance Nissan Holding, LLC
Torrance Nissan, LLC
Tousley Ford, Inc.
Toyota Cerritos Limited Partnership
Triangle Corporation
T-West Sales & Service, Inc.
Valencia Auto Imports
Holding, LLC
Valencia B. Imports Holding, LLC
Valencia B.
Imports, Inc.
Valencia Dodge
Valencia Dodge Holding, LLC
Valencia H. Imports Holding, LLC
Valencia H. Imports, Inc.
Valley Chevrolet, LLC
Vanderbeek Motors Holding, LLC
Vanderbeek Motors, Inc.
Vanderbeek Olds/GMC Truck, Inc.
Vanderbeek Truck Holding, LLC
Village Motors, LLC
Vince Wiese Chevrolet, Inc.
Vince Wiese Holding, LLC
W.O. Bankston Nissan, Inc.
Wallace Dodge, LLC
Wallace Ford, LLC
Wallace Lincoln-Mercury, LLC
Wallace Nissan, LLC
Webb Automotive Group, Inc.
West Colorado Motors, LLC
West Colton Cars, Inc.
West Side Motors, Inc.
Westgate Chevrolet GP, LLC
Westgate Chevrolet, Ltd.
Westmont A. Imports, Inc.
Westmont B. Imports, Inc.
Westmont M. Imports, Inc.
Woody Capital Investment Company II
Woody Capital Investment Company III
Working Mans
Credit Plan, Inc.
Exhibit 5.2
September 21, 2015
AutoNation, Inc.
200 SW 1st Avenue
Fort Lauderdale, FL 33301
Registration Statement on Form S 3 (File No. 333-193972)
Ladies and Gentlemen:
I am Senior Vice
President, Deputy General Counsel and Assistant Secretary of AutoNation, Inc., a Delaware corporation (the Company), and in such capacity have acted as counsel to the Company and the subsidiary guarantors of the Company listed on
Schedule I hereto (each such subsidiary, a Guarantor), in connection with the public offering of (i) $300,000,000 aggregate principal amount of the Companys 3.350% Senior Notes due 2021 (the 2021
Notes), including the guarantees thereof (the 2021 Notes Guarantees) by the subsidiary guarantors of the Company listed on Schedule I hereto (the Guarantors), which will be issued under the Indenture,
dated as of April 14, 2010 (the Base Indenture), between the Company and Wells Fargo Bank, National Association, as trustee (the Trustee), as supplemented and amended, with respect to the 2021 Notes, by the
Supplemental Indenture, dated as of the date hereof, by and among the Company, the Guarantors and the Trustee (the 2021 Notes Supplemental Indenture and, together with the Base Indenture, the 2021 Notes
Indenture) and (ii) $450,000,000 aggregate principal amount of the Companys 4.500% Senior Notes due 2025 (the 2025 Notes and, together with the 2021 Notes, the Notes), including the
guarantees thereof (together with the 2021 Guarantees, the Guarantees) by the Guarantors, which will be issued under the Base Indenture, as supplemented and amended, with respect to the 2025 Notes, by the Supplemental Indenture,
dated as of the date hereof, by and among the Company, the Guarantors and the Trustee (the 2025 Notes Supplemental Indenture and, together with the Base Indenture, the 2025 Notes Indenture and, together with the
2021 Notes Indenture, the Indentures). The Notes and the Guarantees are collectively referred to herein as the Securities). The Underwriting Agreement (as defined below), the Indentures, and the Note
Certificates (as defined below) are referred to herein collectively as the Transaction Documents).
This opinion is
being furnished in accordance with the requirements of Item 601(b)(5) of Regulation S-K under the Securities Act of 1933 (the Securities Act).
In rendering the opinions stated herein, I have examined or caused to be examined the following:
(a) the registration statement on Form S-3 (File No. 333-193972) of the Company relating to the Securities and other securities of the
Company filed with the Securities and Exchange Commission (the Commission) on February 14, 2014 under the Securities Act allowing for delayed offerings pursuant to Rule 415 of the General Rules and Regulations under the
Securities Act (the Rules and Regulations), including information deemed to be a part of the registration statement pursuant to Rule 430B of the Rules and Regulations (such registration statement being hereinafter referred to as
the Registration Statement);
(b) an executed copy of the 2021 Notes Indenture, including Article IX of the 2021 Notes
Supplemental Indenture containing the guaranty obligations of the Guarantors with respect to the 2021 Notes;
(c) an executed copy of the
2025 Notes Indenture, including Article IX of the 2025 Notes Supplemental Indenture containing the guaranty obligations of the Guarantors with respect to the 2025 Notes;
(d) an executed copy of the Underwriting Agreement, dated September 16, 2015 (the Underwriting Agreement), among the
Company, the Guarantors and J.P. Morgan Securities LLC, Merrill Lynch, Pierce, Fenner & Smith Incorporated, Wells Fargo Securities LLC and SunTrust Robinson Humphrey, Inc., as representatives of the several underwriters named therein;
(e) the forms of global certificates evidencing the Notes (the Note Certificates) included in the Indentures;
(f) the Certificate of Incorporation of the Company, as certified by the Secretary of State of the State of Delaware;
(g) the certificate of incorporation, or similar organizational document, of each of the Guarantors, as certified by an authorized official of
each Guarantors respective state of incorporation or organization;
(h) the Bylaws of the Company as currently in effect (the
Companys Bylaws);
(i) the Bylaws, or similar organizational document, of each of the Guarantors, as currently in effect;
(j) copies of certain resolutions of the directors, managers, general partners, stockholders and/or members, as applicable, of each of the
Guarantors, dated February 13, 2014; and
(k) copies of certain resolutions of the Board of Directors of the Company, dated
February 11, 2014 and September 11, 2015, and resolutions of the Pricing Committee thereof, dated September 16, 2015, as certified by the Assistant Secretary of the Company.
I have also examined originals or copies, certified or otherwise identified to my satisfaction, of such records of the Company and the
Guarantors and such agreements, certificates and receipts of public officials, certificates of officers or other representatives of the Company and the Guarantors and others, and such other documents as I have deemed necessary or appropriate as a
basis for the opinions stated below.
In my examination, I have assumed the genuineness of all signatures, including endorsements, the
legal capacity and competency of all natural persons, the authenticity of all documents submitted to me as originals, the conformity to original documents of all
documents submitted to me as facsimile, electronic, certified or photostatic copies, and the authenticity of the originals of such copies. As to any facts relevant to the opinions stated herein
that I did not independently establish or verify, I have relied upon statements and representations of officers and other representatives of the Company, the Guarantors and others and of public officials.
I am a member of the Florida Bar and express no opinion as to the laws of any jurisdiction other than (i) the laws of the State of
Florida, (ii) the corporate and limited liability company statutes listed on Schedule II hereto, (iii) the limited partnership statutes set forth on Schedule III hereto, and (iv) the general partnership statutes set forth on Schedule
IV hereto, and to the extent that judicial or regulatory orders or decrees or consents, approvals, licenses, authorizations, validations, filings, recordings or registrations with governmental authorities are relevant, to those required under such
laws (all of the foregoing being referred to as Opined on Law). The opinions expressed herein is based on laws in effect on the date hereof, which laws are subject to change without possible retroactive effect. I do not express
any opinion as to the effect of any law (other than Opined on Law) on the opinions stated herein. Insofar as the opinions expressed herein relate to matters governed by laws other than Opined on Law, I have assumed, without having made any
independent investigation, that such laws do not affect the opinions set forth herein.
Based upon the foregoing and subject to the
qualifications and assumptions stated herein, I am of the opinion that:
|
1. |
The Company and each of the Guarantors is duly incorporated or organized, as the case may be, and each of the Guarantors is validly existing in good standing under the laws of its respective state of incorporation or
organization. |
|
2. |
Each of the Company and the Guarantors has the corporate, limited liability company or partnership, as the case may be, power and authority to execute and deliver each of the Transaction Documents to which it is a party
and to consummate the issuance and sale of the Securities contemplated thereby. |
The opinions stated herein are limited by
applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer, preference and other similar laws affecting creditors rights generally, and by general principles of equity (regardless of whether enforcement is sought in
equity or at law).
I hereby consent to the filing of this opinion with the Commission as an exhibit to the Companys Current Report
on Form 8-K being filed on the date hereof and incorporated by reference into the Registration Statement. I also hereby consent to the use of my name under the heading Legal Matters in the prospectus forming a part of the Registration
Statement. In giving this consent, I do not thereby admit that I am within the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Commission promulgated thereunder.
Very truly yours,
/s/ C. Coleman G. Edmunds
C. Coleman G. Edmunds
Senior Vice President, Deputy General
Counsel and Assistant Secretary of
AutoNation, Inc.
Schedule I
Guarantors
7 Rod Real Estate North, a
Limited Liability Company
7 Rod Real Estate South, a Limited Liability Company
Abraham Chevrolet-Miami, Inc.
Abraham Chevrolet-Tampa, Inc.
ACER Fiduciary, Inc.
AL F-L Motors, LLC
Albert Berry Motors, Inc.
Allison Bavarian
Allison Bavarian Holding, LLC
All-State Rent A Car, Inc.
American Way Motors, Inc.
AN Cadillac of WPB, LLC
AN Central Region Management, LLC
AN Chevrolet - Arrowhead, Inc.
AN CJ Valencia, Inc.
AN Collision Center FTL South, Inc.
AN Collision Center of Addison, Inc.
AN Collision Center of
Las Vegas, Inc.
AN Collision Center of North Houston, Inc.
AN Collision Center of Sarasota, Inc.
AN Collision Center of
Tempe, Inc.
AN Corporate Management Payroll Corp.
AN Corpus
Christi GP, LLC
AN Corpus Christi Imports Adv. GP, LLC
AN
Corpus Christi Imports Adv., LP
AN Corpus Christi Imports GP, LLC
AN Corpus Christi Imports II GP, LLC
AN Corpus Christi Imports
II, LP
AN Corpus Christi Imports, LP
AN Corpus Christi
Motors, Inc.
AN Corpus Christi T. Imports GP, LLC
AN Corpus
Christi T. Imports, LP
AN County Line Ford, Inc.
AN
Dealership Holding Corp.
AN F. Imports of Atlanta, LLC
AN F. Imports of Hawthorne Holding, LLC
AN F. Imports of
Hawthorne, LLC
AN F. Imports of North Denver, LLC
AN F.
Imports of North Phoenix, Inc.
AN F. Imports of Roseville Holding, LLC
AN F. Imports of Roseville, Inc.
AN Florida Region Management,
LLC
AN Fort Myers Imports, LLC
AN Fremont Luxury Imports,
Inc.
AN H. Imports of Atlanta, LLC
AN Imports of Ft.
Lauderdale, Inc.
AN Imports of Seattle, Inc.
AN Imports of
Spokane, Inc.
AN Imports of Stevens Creek Holding, LLC
AN
Imports of Stevens Creek, Inc.
AN Imports on Weston Road, Inc.
AN Luxury Imports GP, LLC
AN Luxury Imports Holding, LLC
AN Luxury Imports of Coconut Creek, Inc.
AN Luxury Imports of
Marietta, LLC
AN Luxury Imports of Palm Beach, Inc.
AN
Luxury Imports of Pembroke Pines, Inc.
AN Luxury Imports of Phoenix, Inc.
AN Luxury Imports of San Diego, Inc.
AN Luxury Imports of
Sanford, LLC
AN Luxury Imports of Sarasota, Inc.
AN Luxury
Imports of Spokane, Inc.
AN Luxury Imports of Tucson, Inc.
AN Luxury Imports, Ltd.
AN Motors of Brooksville, Inc.
AN Motors of Dallas, Inc.
AN Motors of Delray Beach, Inc.
AN Motors of Englewood, Inc.
AN Motors of Ft. Lauderdale, Inc.
AN Motors of Memphis, Inc.
AN Motors of Pembroke, LLC
AN Motors of Scottsdale, LLC
AN Motors on Federal Highway, LLC
AN Motors on South Padre, Ltd.
AN Pontiac GMC Houston North GP, LLC
AN Pontiac GMC Houston
North, LP
AN San Jose Luxury Imports Holdings, LLC
AN San
Jose Luxury Imports, Inc.
AN Seattle Motors, Inc.
AN Subaru
Motors, Inc.
AN T. Imports of Atlanta, LLC
AN Texas Region
Management, Ltd.
AN Tucson Imports, LLC
AN Valencia Auto
Imports, Inc.
AN West Central Region Management, LLC
AN
Western Region Management, LLC
AN/CF Acquisition Corp.
AN/GMF, Inc.
AN/KPBG Motors, Inc.
AN/MF Acquisition Corp
AN/MNI Acquisition Corp.
AN/PF Acquisition Corp.
Anderson Chevrolet
Anderson Chevrolet Los Gatos, Inc.
Anderson Cupertino, Inc.
Appleway Chevrolet, Inc.
Atrium Restaurants, Inc.
Auto Ad Agency, Inc.
Auto Car Holding, LLC
Auto Car, Inc.
Auto Company IX, Inc.
Auto Company VI, Inc.
Auto Company VII, Inc.
Auto Company VIII, Inc.
Auto Company X, Inc.
Auto Company XI, Inc.
Auto Company XII, Inc.
Auto Company XIII, Inc.
Auto Company XIV, Inc.
Auto Company XIX, Inc.
Auto Company XL, Inc.
Auto Company XLI, Inc.
Auto Company XLII, Inc.
Auto Company XLIII, Inc.
Auto Company XLIV, Inc.
Auto Company XLV, Inc.
Auto Company XVII, Inc.
Auto Company XVIII, Inc.
Auto Company XXI, Inc.
Auto Company XXII, Inc.
Auto Company XXIII, Inc.
Auto Company XXIV, Inc.
Auto Company XXIX, Inc.
Auto Company XXV, Inc.
Auto Company XXVI, Inc.
Auto Company XXVII, Inc.
Auto Company XXVIII, Inc.
Auto Company XXX, Inc.
Auto Company XXXI, Inc.
Auto Company XXXII, Inc.
Auto Company XXXIII, Inc.
Auto Company XXXIV, Inc.
Auto Company XXXIX, Inc.
Auto Company XXXV, Inc.
Auto Company XXXVI, Inc.
Auto Company XXXVII, Inc.
Auto Company XXXVIII, Inc.
Auto Dealership III, LLC
Auto Dealership IV, LLC
Auto Dealership IX, LLC
Auto Dealership V, LLC
Auto Dealership VI, LLC
Auto Dealership VII, LLC
Auto Dealership VIII, LLC
Auto Dealership X, LLC
Auto Dealership XIX, LLC
Auto Dealership XX, LLC
Auto Dealership XXI, LLC
Auto Dealership XXII, LLC
Auto Dealership XXIII, LLC
Auto Dealership XXIV, LLC
Auto Dealership XXIX, LLC
Auto Dealership XXV, LLC
Auto Dealership XXVI, LLC
Auto Dealership XXVII, LLC
Auto Dealership XXVIII, LLC
Auto Dealership XXX, LLC
Auto Holding, LLC
Auto Mission Holding, LLC
Auto Mission Ltd.
Auto West, Inc.
Autohaus Holding, Inc.
AutoNation Benefits Company, Inc.
AutoNation Corporate
Management, LLC
AutoNation Direct Nevada, Inc.
AutoNation
Enterprises Incorporated
AutoNation Financial Services, LLC
AutoNation Fort Worth Motors, Ltd.
AutoNation GM GP, LLC
AutoNation Holding Corp.
AutoNation Imports of Katy GP, LLC
AutoNation Imports of Katy, L.P.
AutoNation Imports of Lithia
Springs, LLC
AutoNation Imports of Longwood, Inc.
AutoNation Imports of Palm Beach, Inc.
AutoNation Imports of
Winter Park, Inc.
AutoNation Motors Holding Corp.
AutoNation Motors of Lithia Springs, Inc.
AutoNation North Texas
Management GP, LLC
AutoNation Northwest Management, LLC
AutoNation Orlando Venture Holdings, Inc.
AutoNation Realty
Corporation
AutoNation USA of Perrine, Inc.
AutoNation V.
Imports of Delray Beach, LLC
AutoNation.com, Inc.
Bankston
Auto, Inc.
Bankston Chrysler Jeep of Frisco, L.P.
Bankston
CJ GP, LLC
Bankston Ford of Frisco, Ltd. Co.
Bankston
Nissan in Irving, Inc.
Bankston Nissan Lewisville GP, LLC
Bankston Nissan Lewisville, Ltd.
Bargain Rent-A-Car
Batfish, LLC
BBCSS, Inc.
Beach City Chevrolet Company, Inc.
Beach City Holding, LLC
Beacon Motors, Inc.
Bell Motors, LLC
Bellevue Automotive, Inc.
Bengal Motor Company, Ltd.
Bengal Motors, Inc.
Bill Ayares Chevrolet, LLC
Bledsoe Dodge, LLC
Bob Townsend Ford, Inc.
Body Shop Holding Corp.
BOSC Automotive Realty, Inc.
Brown & Brown Chevrolet - Superstition Springs, LLC
Brown & Brown Chevrolet, Inc.
Brown & Brown
Nissan Mesa, LLC
Brown & Brown Nissan, Inc.
Buick
Mart Limited Partnership
Bull Motors, LLC
C. Garrett, Inc.
Carlisle Motors, LLC
Carwell Holding, LLC
Carwell, LLC
Centennial Automotive, LLC
Cerritos Body Works Holding, LLC
Cerritos Body Works, Inc.
Champion Chevrolet Holding, LLC
Champion Chevrolet, LLC
Champion Ford, Inc.
Charlie Hillard, Inc.
Charlie Thomas Chevrolet GP, LLC
Charlie Thomas Chevrolet, Ltd.
Charlie Thomas Chrysler-Plymouth, Inc.
Charlie Thomas
Courtesy GP, LLC
Charlie Thomas Courtesy Leasing, Inc.
Charlie Thomas F. GP, LLC
Charlie Thomas Ford, Ltd.
Charlie Thomas Courtesy Ford,
Ltd.
Chesrown Auto, LLC
Chesrown Chevrolet, LLC
Chesrown Collision Center, Inc.
Chesrown Ford, Inc.
Chevrolet World, Inc.
Chuck Clancy Ford of Marietta, LLC
CJ Valencia Holding, LLC
Coastal Cadillac, Inc.
Consumer Car Care Corporation
Contemporary Cars, Inc.
Cook-Whitehead Ford, Inc.
Corporate Properties Holding, Inc.
Corpus Christi Collision Center, Inc.
Costa Mesa Cars
Holding, LLC
Costa Mesa Cars, Inc.
Courtesy Auto Group,
Inc.
Courtesy Broadway, LLC
Covington Pike Motors, Inc.
CT Intercontinental GP, LLC
CT Intercontinental, Ltd.
CT Motors, Inc.
D/L Motor Company
Deal Dodge of Des Plaines, Inc.
Dealership Properties, Inc.
Dealership Realty Corporation
Desert Buick-GMC Trucks, L.L.C.
Desert Chrysler-Plymouth, Inc.
Desert Dodge, Inc.
Desert GMC, L.L.C.
Dobbs Ford of Memphis, Inc.
Dobbs Ford, Inc.
Dobbs Mobile Bay, Inc.
Dobbs Motors of Arizona, Inc.
Don Mealey Chevrolet, Inc.
Don Mealey Imports, Inc.
Don-A-Vee Jeep Eagle, Inc.
Drivers Mart Worldwide, Inc.
Eastgate Ford, Inc.
Ed Mullinax Ford, LLC
Edgren Motor Company, Inc.
Edgren Motor Holding, LLC
El Monte Imports Holding, LLC
El Monte Imports, Inc.
El Monte Motors Holding, LLC
El Monte Motors, Inc.
Emich Subaru West, LLC
Empire Services Agency, Inc.
Financial Services GP, LLC
Financial Services, Ltd.
First Team Automotive Corp.
First Team Ford of Manatee, Ltd.
First Team Ford, Ltd
First Team Jeep Eagle,
Chrysler-Plymouth, Ltd.
First Team Management, Inc.
Fit Kit
Holding, LLC
Fit Kit, Inc.
Florida Auto Corp.
Ford of Kirkland, Inc.
Fox Chevrolet, LLC
Fox Motors, LLC
Fred Oakley Motors, Inc.
Fremont Luxury Imports Holding, LLC
Ft. Lauderdale Nissan, Inc.
G.B. Import Sales & Service Holding, LLC
G.B.
Import Sales & Service, LLC
GA CDJR Motors, LLC
GA
Columbus Imports, LLC
GA F Imports, LLC
GA H Imports, LLC
GA HY Imports, LLC
Gene Evans Ford, LLC
George Sutherlin Nissan, LLC
Government Boulevard Motors, Inc.
Gulf Management, Inc.
Hayward Dodge, Inc.
Hillard Auto Group, Inc.
Hollywood Imports Limited, Inc.
Hollywood Kia, Inc.
Horizon Chevrolet, Inc.
House of Imports Holding, LLC
House of Imports, Inc.
Houston Auto M. Imports Greenway, Ltd.
Houston Auto M. Imports North, Ltd.
Houston Imports
Greenway GP, LLC
Houston Imports North GP, LLC
HV
Collision, LLC
HVA Imports, LLC
HVM Imports, LLC
HVS Motors, LLC
HVVW Motors, LLC
Irvine Imports Holding, LLC
Irvine Imports, Inc.
Irvine Toyota/Nissan/Volvo Limited Partnership
Jemautco, Inc.
Jerry Gleason Chevrolet, Inc.
Jerry Gleason Dodge, Inc.
Jim Quinlan Chevrolet Co.
Joe MacPherson Ford
Joe MacPherson Imports No. I
Joe MacPherson Infiniti
Joe MacPherson Infiniti Holding, LLC
Joe MacPherson Oldsmobile
John M. Lance Ford, LLC
J-R Advertising Company
J-R Motors Company North
J-R Motors Company South
JRJ Investments, Inc.
Kenyon Dodge, Inc.
Kings Crown Ford, Inc.
Kirkland Motors, Inc.
L.P. Evans Motors WPB, Inc.
L.P. Evans Motors, Inc.
Lance Children, Inc.
Leesburg Imports, LLC
Leesburg Motors, LLC
Les Marks Chevrolet, Inc.
Lew Webbs Ford, Inc.
Lew Webbs Irvine Nissan Holding, LLC
Lew Webbs
Irvine Nissan, Inc.
Lewisville Imports GP, LLC
Lewisville
Imports, Ltd.
Lot 4 Real Estate Holdings, LLC
Luxury
Orlando Imports, Inc.
MacHoward Leasing
MacHoward Leasing
Holding, LLC
MacPherson Enterprises, Inc.
Magic Acquisition
Corp.
Magic Acquisition Holding, LLC
Maitland Luxury
Imports, Inc.
Marks Family Dealerships, Inc.
Marks
Transport, Inc.
MC/RII, LLC
Mealey Holdings, Inc.
Metro Chrysler Jeep, Inc.
Midway Chevrolet, Inc.
Mike Hall Chevrolet, Inc.
Mike Shad Chrysler Plymouth Jeep
Eagle, Inc.
Mike Shad Ford, Inc.
Miller-Sutherlin
Automotive, LLC
Mission Blvd. Motors, Inc.
Mr. Wheels
Holding, LLC
Mr. Wheels, Inc.
Mullinax East, LLC
Mullinax Ford North Canton, Inc.
Mullinax Ford South, Inc.
Mullinax Lincoln-Mercury, Inc.
Mullinax Used Cars, Inc.
Naperville Imports, Inc.
Newport Beach Cars Holding, LLC
Newport Beach Cars, LLC
Nichols Ford, Ltd.
Nichols GP, LLC
Nissan of Brandon, Inc.
Northpoint Chevrolet, LLC
Northwest Financial Group, Inc.
Ontario Dodge, Inc.
Oxnard Venture Holdings, Inc.
Payton-Wright Ford Sales, Inc.
Pembroke Motors, Inc.
Peyton Cramer Automotive
Peyton Cramer Automotive Holding, LLC
Peyton Cramer F. Holding,
LLC
Peyton Cramer Ford
Peyton Cramer Infiniti
Peyton Cramer Infiniti Holding, LLC
Peyton Cramer Jaguar
Peyton Cramer Lincoln-Mercury
Peyton Cramer LM Holding, LLC
Pierce Automotive Corporation
Pierce, LLC
Pitre Chrysler-Plymouth-Jeep of Scottsdale, Inc.
Plains
Chevrolet GP, LLC
Plains Chevrolet, Ltd.
PMWQ, Inc.
PMWQ, Ltd.
Port City Imports, Inc.
Prime Auto Resources, Inc.
Quality Nissan GP, LLC
Quality Nissan, Ltd.
Quinlan Motors, Inc.
R. Coop Limited
R.L. Buscher II, Inc.
R.L. Buscher III, Inc.
Real Estate Holdings, Inc.
Renton H Imports, Inc.
Republic DM Property Acquisition Corp.
Republic Resources Company
Republic Risk Management
Services, Inc.
Resources Aviation, Inc.
RI Merger Corp.
RI/BB Acquisition Corp.
RI/BBNM Acquisition Corp.
RI/BRC Real Estate Corp.
RI/DM Acquisition Corp.
RI/Hollywood Nissan Acquisition Corp.
RI/LLC Acquisition Corp.
RI/RMC Acquisition GP, LLC
RI/RMC Acquisition, Ltd.
RI/RMP Acquisition Corp.
RI/RMT Acquisition GP, LLC
RI/RMT Acquisition, Ltd.
RI/WFI Acquisition Corporation
RKR Motors, Inc.
Roseville Motor Corporation
Roseville Motor Holding, LLC
Sahara Imports, Inc.
Sahara Nissan, Inc.
Saul Chevrolet Holding, LLC
SCM Realty, Inc.
Shamrock F. Holding, LLC
Shamrock Ford, Inc.
Six Jays LLC
SMI Motors Holding, LLC
SMI Motors, Inc.
South Broadway Motors, LLC
Southwest Motors of Denver, LLC
Spitfire Properties, Inc.
Star Motors, LLC
Steakley Chevrolet GP, LLC
Steakley Chevrolet, Ltd.
Steeplechase Motor Company
Steve Moore Chevrolet Delray, LLC
Steve Moore Chevrolet, LLC
Steve Moores Buy-Right Auto Center, Inc.
Stevens
Creek Holding, LLC
Stevens Creek Luxury Imports Holding, LLC
Stevens Creek Luxury Imports, Inc.
Stevens Creek Motors, Inc.
Sunrise Nissan of Jacksonville, Inc.
Sunrise Nissan of
Orange Park, Inc.
Sunset Pontiac-GMC Truck South, Inc.
Sunset Pontiac-GMC, Inc.
Superior Nissan, Inc.
Sutherlin Chrysler-Plymouth Jeep-Eagle,
LLC
Sutherlin H. Imports, LLC
Sutherlin Imports, LLC
Sutherlin Nissan, LLC
Sutherlin Town Center, Inc.
Tartan Advertising, Inc.
Tasha Incorporated
Terry York Motor Cars Holding, LLC
Terry York Motor Cars, Ltd.
Texan Ford Sales, Ltd.
Texan Ford, Inc.
Texan Sales GP, LLC
Texas Management Companies LP, LLC
The Consulting Source, Inc.
The Pierce Corporation II, Inc.
Tinley Park A. Imports, Inc.
Tinley Park J. Imports, Inc.
Tinley Park V. Imports, Inc.
TN CDJR Motors, LLC
TN F Imports, LLC
Torrance Nissan Holding, LLC
Torrance Nissan, LLC
Tousley Ford, Inc.
Toyota Cerritos Limited Partnership
Triangle Corporation
T-West Sales & Service, Inc.
Valencia Auto Imports
Holding, LLC
Valencia B. Imports Holding, LLC
Valencia B.
Imports, Inc.
Valencia Dodge
Valencia Dodge Holding, LLC
Valencia H. Imports Holding, LLC
Valencia H. Imports, Inc.
Valley Chevrolet, LLC
Vanderbeek Motors Holding, LLC
Vanderbeek Motors, Inc.
Vanderbeek Olds/GMC Truck, Inc.
Vanderbeek Truck Holding, LLC
Village Motors, LLC
Vince Wiese Chevrolet, Inc.
Vince Wiese Holding, LLC
W.O. Bankston Nissan, Inc.
Wallace Dodge, LLC
Wallace Ford, LLC
Wallace Lincoln-Mercury, LLC
Wallace Nissan, LLC
Webb Automotive Group, Inc.
West Colorado Motors, LLC
West Colton Cars, Inc.
West Side Motors, Inc.
Westgate Chevrolet GP, LLC
Westgate Chevrolet, Ltd.
Westmont A. Imports, Inc.
Westmont B. Imports, Inc.
Westmont M. Imports, Inc.
Woody Capital Investment Company II
Woody Capital Investment Company III
Working Mans
Credit Plan, Inc.
Schedule II
Corporate and Limited Liability Company Statutes
Alabama Business Corporation Act, 2 Corporation Statutes (Aspen Law & Bus.).
Arizona Business Corporation Act, 2 Corporation Statutes (Aspen Law & Bus.).
Arizona Limited Liability Company Act, 2 Corporation Statutes (Aspen Law & Bus.).
California General Corporation Law, 2 Corporation Statutes (Aspen Law & Bus.).
Colorado Business Corporation Act, 2 Corporation Statutes (Aspen Law & Bus.).
Colorado Limited Liability Company Act, 2 Corporation Statutes (Aspen Law & Bus.).
Delaware General Corporation Law, 3 Corporation Statutes (Aspen Law & Bus.).
Delaware Limited Liability Company Act, 3 Corporation Statutes (Aspen Law & Bus.).
Florida Business Corporation Act, 3 Corporation Statutes (Aspen Law & Bus.).
Georgia Business Corporation Code, 3 Corporation Statutes (Aspen Law & Bus.).
Illinois Business Corporation Act, 3 Corporation Statutes (Aspen Law & Bus.).
Maryland General Corporation Law, 4 Corporation Statutes (Aspen Law & Bus.).
Michigan Business Corporation Act, 5 Corporation Statutes (Aspen Law & Bus.).
Minnesota Business Corporation Act, 5 Corporation Statutes (Aspen Law & Bus.).
Nevada General Corporation Law, 6 Corporation Statutes (Aspen Law & Bus.).
North Carolina Business Corporation Act, 6 Corporation Statutes (Aspen Law & Bus.).
Ohio General Corporation Law, 7 Corporation Statutes (Aspen Law & Bus.).
Ohio Limited Liability Company Act, 7 Corporation Statutes (Aspen Law & Bus.).
Tennessee Business Corporation Act, 7 Corporation Statutes (Aspen Law & Bus.).
Texas Business Corporation Act, 8 Corporation Statutes (Aspen Law & Bus.).
Texas Limited Liability Company Act, 8 Corporation Statutes (Aspen Law & Bus.).
Virginia Stock Corporation Act, 8 Corporation Statutes (Aspen Law & Bus.).
Washington Business Corporation Act, 8 Corporation Statutes (Aspen Law & Bus.).
Wyoming Limited Liability Company Act. 8 Corporation Statutes (Aspen Law & Bus.).
Schedule III
Limited Partnership Statutes
California
Uniform Limited Partnership Act, 1 State Limited Partnership Laws (Prentice Hall Law & Bus.).
Delaware Revised Uniform Limited Partnership Act, 2
State Limited Partnership Laws (Aspen Law & Bus.).
Florida Revised Uniform Limited Partnership Act, 2 State Limited Partnership Laws (Aspen
Law & Bus.).
Georgia Revised Uniform Limited Partnership Act, 2 State Limited Partnership Laws (Aspen Law & Bus.).
Illinois Uniform Limited Partnership Act, 2 State Limited Partnership Laws (Aspen Law & Bus.).
Texas Revised Limited Partnership Act, 6 State Limited Partnership Laws (Aspen Law & Bus.).
Schedule IV
General Partnership Statutes
Colorado
Uniform Partnership Law, 2 Colorado Revised Statutes 2000 (Bradford Publishing Co.).
Delaware Revised Uniform Partnership Act, 2 State Limited Partnership
Laws (Aspen Law & Bus.).
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