EIGHTH SUPPLEMENTAL INDENTURE
Exhibit 4.5
EIGHTH SUPPLEMENTAL INDENTURE (this “Supplemental Indenture”), dated as of November 16, 2010, among Xxxxxx Automotive Group, Inc., a Delaware corporation (the “Company”), the Guarantors (as defined in the Indenture referred to herein) and The Bank of New York Mellon (formerly known as The Bank of New York), as trustee under the Indenture referred to below (the “Trustee”).
W I T N E S S E T H
WHEREAS, the Company has heretofore executed and delivered to the Trustee an indenture, dated as of December 23, 2003 (as amended through the date hereof, the “Indenture”), pursuant to which the Company issued $200,000,000 aggregate principal amount of 8% Senior Subordinated Notes due 2014 (the “Notes”), $179,430,000 of which are outstanding as of the date hereof;
WHEREAS, the Company has offered to purchase for cash any and all of the outstanding Notes (the “Tender Offer”) and requested that Holders of the Notes deliver their consents (the “Consents”) to eliminate substantially all of the restrictive covenants and modify or eliminate certain events of default contained in the Indenture pursuant to the Offer to Purchase and Consent Solicitation Statement, dated November 1, 2010, and the related Letter of Transmittal and Consent;
WHEREAS, Section 9.02 of the Indenture provides that the Company and the Trustee may amend or supplement the Indenture, the Notes and the Subsidiary Guarantees with the consent of the Holders of at least a majority in aggregate principal amount of the then-outstanding Notes voting as a single class (including, consents obtained in connection with a tender offer, or exchange offer for, or purchase of, Notes);
WHEREAS, Holders of at least a majority in aggregate principal amount of the Notes outstanding (determined as provided for by the Indenture) have duly consented to the proposed amendments set forth in this Supplemental Indenture in accordance with Section 9.02 of the Indenture and all other conditions precedent provided under the Indenture to permit the Company, the Guarantors and the Trustee to enter into this Supplemental Indenture have been satisfied;
WHEREAS, this Supplemental Indenture is effective as of the date upon which the conditions set forth in Section 3 hereof are satisfied, and the amendments effected by this Supplemental Indenture shall become operative with respect to the Notes on the Initial Payment Date (as defined herein); and
WHEREAS, pursuant to Section 9.02 of the 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 Guarantors 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. AMENDMENTS.
(a) Amendment of Article 4. Subject to Section 3 hereof, the Indenture is hereby amended by deleting the following Sections of Article 4 of the Indenture and all references thereto: 4.03, 4.04(a), 4.05, 4.06, 4.07, 4.08, 4.09, 4.10, 4.11, 4.12, 4.13, 4.14, 4.15, 4.17, 4.18 and 4.19, in each case in its entirety, and replacing each such Section with the following: “Intentionally omitted.”
(b) Amendment of Article 5. Subject to Section 3 hereof, the Indenture is hereby amended by (A) deleting the comma and replacing it with “and” immediately preceding the phrase “(ii) the Successor Company” in the first sentence of Section 5.01 of the Indenture, and deleting the comma and replacing it with a period at the end of clause (ii), (B) deleting clause (iii) and clause (iv) of the first sentence of Section 5.01 of the Indenture, in each case in its entirety, (C) deleting the second sentence of Section 5.01 of the Indenture.
(c) Amendment of Article 6. Subject to Section 3 hereof, the Indenture is hereby amended by deleting Section 6.01 in its entirety, together with any references to subsections thereof in the Indenture that, as provided below, are being replaced with the words “intentionally omitted,” and replacing such Section 6.01 with the following:
“An “Event of Default” occurs if:
(a) the Company defaults in the payment when due of interest on, or Special Interest, if any, with respect to, the Notes and such default continues for a period of 30 days, whether or not such payment shall be prohibited by Article 10 hereof;
(b) the Company defaults in the payment when due of principal of, or premium, if any, on, the Notes when the same becomes due and payable at maturity, upon redemption (including in connection with an offer to purchase) or otherwise, whether or not such payment shall be prohibited by Article 10 hereof;
(c) the Company fails to comply with any of the provisions of Section 5.01 hereof;
(d) intentionally omitted;
(e) intentionally omitted;
(f) intentionally omitted;
(g) intentionally omitted;
(h) intentionally omitted;
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(i) the Company:
(i) commences a voluntary case,
(ii) consents to the entry of an order for relief against it in an involuntary case,
(iii) consents to the appointment of a custodian of it or for all or substantially all of its property,
(iv) makes a general assignment for the benefit of its creditors, or
(v) generally is not paying its debts as they become due; or
(j) a court of competent jurisdiction enters an order or decree under any Bankruptcy Law that:
(i) is for relief against the Company in an involuntary case;
(ii) appoints a custodian of the Company or for all or substantially all of the property of the Company ; or
(iii) orders the liquidation of the Company;
and the order or decree remains unstayed and in effect for 60 consecutive days.”
(d) Amendment of Notes. Subject to Section 3 hereof, any of the terms or provisions present in the Notes that relate to any of the provisions of the Indenture as amended by this Supplemental Indenture shall also be amended so as to be consistent with the amendments made by this Supplemental Indenture.
(e) Amendment of Definitions. Subject to Section 3 hereof, any defined terms present in the Indenture, the Notes or the Subsidiary Guarantees but no longer used as a result of the amendments made by this Supplemental Indenture are hereby eliminated in the Indenture. The definition of any defined term used in the Indenture, the Notes or the Subsidiary Guarantees where such definition is set forth in any of the sections or subsections of the Indenture that are eliminated by this Supplemental Indenture and the term it defines is still used in the Indenture, the Notes or the Subsidiary Guarantees after the amendments hereby become operative shall be deemed to become part of, and defined in, Section 1.01 of the Indenture. Such defined terms are to be in alphanumeric order within Section 1.01 of the Indenture.
3. EFFECT AND OPERATION OF SUPPLEMENTAL INDENTURE. This Supplemental Indenture shall be effective and binding immediately upon its execution by the Company, the Guarantors and the Trustee, and thereupon this Supplemental Indenture shall form a part of the Indenture for all purposes, and every Note and Subsidiary Guarantee heretofore or hereafter authenticated and delivered under the Indenture shall be bound hereby; provided however, notwithstanding anything in the Indenture or this Supplemental Indenture to the
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contrary, the amendments set forth in Section 2 of this Supplemental Indenture shall become operative only upon and simultaneously with, and shall have no force and effect prior to, the Company’s acceptance and initial payment for Notes validly tendered (and not validly withdrawn) pursuant to the Tender Offer and representing at least a majority in aggregate principal amount of the then-outstanding Notes (such date of payment, the “Initial Payment Date”). If the Tender Offer is terminated or withdrawn, or the Company does not accept for purchase, and pay for, the Notes for any reason, this Supplemental Indenture shall not become operative. Except as modified and amended by this Supplemental Indenture, all provisions of the Indenture shall remain in full force and effect.
4. INDENTURE AND SUPPLEMENTAL INDENTURE CONSTRUED TOGETHER. This Supplemental Indenture is an indenture supplemental to, and in implementation of, the Indenture, and the Indenture and this Supplemental Indenture shall henceforth be read and construed together.
5. TRUST INDENTURE ACT CONTROLS. If any provision of the Indenture, as amended by this Supplemental Indenture, limits, qualifies or conflicts with the duties imposed by TIA § 318(c), the imposed duties shall control.
6. NO PERSONAL LIABILITY OF DIRECTORS, OFFICERS, EMPLOYEES AND STOCKHOLDERS. No past, present or future director, officer, employee, incorporator or stockholder of the Company or any Guarantor, as such, shall have any liability for any obligations of the Company or such Guarantor under the Notes, the Subsidiary Guarantees, the Indenture, as amended by this Supplemental Indenture, or for any claim based on, in respect of, or by reason of, such obligations or their creation. Each Holder by accepting a Note waives and releases all such liability. The waiver and release are part of the consideration for issuance of the Notes.
7. GOVERNING LAW. THE INTERNAL LAW OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED TO CONSTRUE THIS SUPPLEMENTAL INDENTURE, THE NOTES AND THE SUBSIDIARY GUARANTEES.
8. SEVERABILITY. In case any provision in this Supplemental Indenture or in the Notes shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
9. COUNTERPARTS. This Supplemental Indenture may be executed in two or more separate counterparts. Each executed counterpart shall be an original, but all of them together represent the same agreement.
10. HEADINGS. The Headings of the Sections of this Supplemental Indenture have been inserted for convenience of reference only, are not to be considered a part of this Supplemental Indenture and shall in no way modify or restrict any of the terms or provisions hereof.
11. THE TRUSTEE. The Trustee shall not be responsible in any manner whatsoever for or in respect of the validity or sufficiency of this Supplemental Indenture or for or in respect of
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the recitals contained herein, all of which recitals are made solely by the Company and the Guarantors.
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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.
| XXXXXX AUTOMOTIVE GROUP, INC. | ||||
| By: |
/s/ Xxxxx X. Xxxxxxxx | |||
| Name: |
Xxxxx X. Xxxxxxxx | |||
| Title: |
Senior Vice President and Chief Financial Officer | |||
| Xxxxxx Automotive Group L.L.C., as Guarantor | ||||
| By: |
/s/ Xxxxx X. Xxxxxxxx | |||
| Name: |
Xxxxx X. Xxxxxxxx | |||
| Title: |
Senior Vice President and Chief Financial Officer | |||
| AF Motors, L.L.C. ALM Motors, L.L.C. Arkansas Automotive Services, L.L.C. Xxxxxx AR Xxxx L.L.C. Xxxxxx Atlanta AC L.L.C. Xxxxxx Atlanta AU L.L.C. Xxxxxx Atlanta BM L.L.C. Xxxxxx Atlanta Chevrolet L.L.C. Xxxxxx Atlanta Hon L.L.C. Xxxxxx Atlanta Inf L.L.C. Xxxxxx Atlanta Infiniti L.L.C. Xxxxxx Atlanta Jaguar L.L.C. Xxxxxx Atlanta Lex L.L.C. Xxxxxx Atlanta Xxx L.L.C. Xxxxxx Atlanta Toy L.L.C. Xxxxxx Atlanta VL L.L.C. Xxxxxx Automotive Arkansas Dealership Holdings L.L.C. Xxxxxx Automotive Arkansas L.L.C. Xxxxxx Automotive Atlanta II L.L.C. Xxxxxx Automotive Atlanta L.L.C. Xxxxxx Automotive Central Florida, L.L.C. Xxxxxx Automotive Deland, L.L.C. Xxxxxx Automotive Fresno L.L.C. Xxxxxx Automotive Jacksonville GP L.L.C. | ||||
| Xxxxxx Automotive Jacksonville GP L.L.C., as general partner of Xxxxxx Automotive Jacksonville, X.X. Xxxxxx Automotive Mississippi L.L.C. Xxxxxx Automotive North Carolina Dealership Holdings, L.L.C. Xxxxxx Automotive North Carolina L.L.C. Xxxxxx Automotive North Carolina Management L.L.C. Xxxxxx Automotive North Carolina Real Estate Holdings, L.L.C. Xxxxxx Automotive Oregon L.L.C. Xxxxxx Automotive Southern California L.L.C. Xxxxxx Automotive St. Xxxxx XX L.L.C. Xxxxxx Automotive St. Louis L.L.C. Xxxxxx Automotive Tampa GP L.L.C. Xxxxxx Automotive Tampa GP L.L.C., as general partner of Xxxxxx Automotive Tampa, X.X. Xxxxxx Automotive Texas L.L.C. Xxxxxx Automotive Texas Real Estate Holdings, L.L.C. Xxxxxx Xxxxxx Imports 2, L.L.C. Xxxxxx Fresno Imports L.L.C. Xxxxxx Jax AC, LLC Xxxxxx Jax Hon L.L.C. Xxxxxx Jax K L.L.C. Xxxxxx Jax Management L.L.C. Xxxxxx Jax Management L.L.C., as general partner of ANL, L.P., Xxxxxx Jax Holdings, L.P., Avenues Motors, Ltd., Bayway Financial Services, L.P., C&O Properties, Ltd., CFP Motors, Ltd., CH Motors, Ltd., CHO Partnership, Ltd., CN Motors, Ltd., Xxxxxx Management, L.P. and CP-GMC Motors, Ltd. Xxxxxx Jax VW, L.L.C. Xxxxxx MS Chev L.L.C. Xxxxxx XX Xxxx-Xxxxxxx L.L.C. Xxxxxx No Xxx Xxxx L.L.C. Xxxxxx Sacramento Imports L.L.C. Xxxxxx SC JPV, L.L.C. Xxxxxx SC LEX L.L.C. Xxxxxx SC Toy L.L.C. Xxxxxx So Cal DC L.L.C. Xxxxxx So Cal Hon L.L.C. Xxxxxx So Xxx Xxxx L.L.C. Xxxxxx St. Louis Cadillac L.L.C. |
| Xxxxxx St. Xxxxx FSKR, L.L.C. Xxxxxx St. Xxxxx Xxx L.L.C. Xxxxxx St. Louis LR L.L.C. Xxxxxx St. Xxxxx M, L.L.C. Xxxxxx Tampa Management L.L.C. Xxxxxx Tampa Management L.L.C., as general partner of Xxxxxx Automotive Brandon, L.P., Tampa Hund, L.P., Tampa Kia, L.P., Tampa LM, L.P., Tampa Mit, L.P., WMZ Motors, L.P. and WTY Motors, X.X. Xxxxxx Texas D FSKR, L.L.C. Xxxxxx Texas H FSKR, L.L.C. Xxxxxx-Xxxxxx Imports, L.L.C. Atlanta Real Estate Holdings L.L.C. BFP Motors L.L.C. Camco Finance II L.L.C. CK Chevrolet L.L.C. CK Motors LLC Xxxxxx Automotive Corp. Xxxxxx Cars L.L.C. Xxxxxx Chevrolet L.L.C. Crown Acura/Nissan, LLC Crown CHH L.L.C. Crown CHO L.L.C. Crown CHV L.L.C. Crown FDO L.L.C. Crown FFO Holdings L.L.C. Crown FFO L.L.C. Crown GAC L.L.C. Crown GBM L.L.C. Crown GCA L.L.C. Crown GDO L.L.C. Crown GHO L.L.C. Crown GNI L.L.C. Crown GPG L.L.C. Crown GVO L.L.C. Crown Honda, LLC Crown Motorcar Company L.L.C. Crown PBM L.L.C. Crown RIA L.L.C. Crown RIB L.L.C. Crown SJC L.L.C. Crown SNI L.L.C. CSA Imports L.L.C. Escude-NN L.L.C. Escude-NS L.L.C. |
| Escude-T L.L.C., Florida Automotive Services L.L.C. HFP Motors L.L.C. JC Dealer Systems, LLC KP Motors L.L.C. XxXxxxx Xxxxxx-Acra, L.L.C. XxXxxxx Frisco-Hon, L.L.C. XxXxxxx Grande, L.L.C. XxXxxxx Houston-Hon, L.L.C. XxXxxxx Xxxxxxx-Xxxx, L.L.C. XxXxxxx Xxxxxx-Hon, L.L.C. XxXxxxx Outfitters, L.L.C. XxXxxxx Plano-Acra, L.L.C. Mid-Atlantic Automotive Services, L.L.C. Mississippi Automotive Services, L.L.C. Missouri Automotive Services, L.L.C. NP FLM L.L.C. NP MZD L.L.C. NP VKW L.L.C. Plano Lincoln-Mercury, Inc. Precision Computer Services, Inc. Precision Enterprises Tampa, Inc. Precision Infiniti, Inc. Precision Motorcars, Inc. Precision Nissan, Inc. Premier NSN L.L.C. Premier Pon L.L.C. Prestige Bay L.L.C. Prestige TOY L.L.C. Southern Atlantic Automotive Services, L.L.C. Texas Automotive Services, L.L.C. Xxxxxxxx Auto Credit Northwest, Inc. Xxxxxxxx DAM L.L.C. Xxxxxxxx FRD L.L.C. Xxxxxxxx Hund L.L.C. Xxxxxxxx Pontiac-GMC L.L.C., as Guarantors |
| By: | /s/ Xxxxx X. Xxxxxxxx | |||
| Name: |
Xxxxx X. Xxxxxxxx | |||
| Title: |
Vice President | |||
| Xxxxxx Automotive Management L.L.C., as Guarantor | ||||
| By: | /s/ Xxxxx X. Xxxxxxxx | |||
| Name: |
Xxxxx X. Xxxxxxxx | |||
| Title: |
Vice President and Treasurer | |||
[Signature Page to 2014 Notes Supplemental Indenture]
| THE BANK OF NEW YORK MELLON, as Trustee | ||||
| By: | /s/ Xxxxxx X. Xxxxx | |||
| Name: | Xxxxxx X. Xxxxx | |||
| Title: | Associate | |||
[Signature Page to 2014 Notes Supplemental Indenture]
