REGISTRATION RIGHTS AGREEMENT
Exhibit 4.1
This Registration Rights Agreement (the “Agreement”) is made and entered into this 12th day of
March, 2010, among Sonic Automotive, Inc., a Delaware corporation (the “Company”), the guarantors
set forth on the signature page hereto (each a “Guarantor” and collectively, the “Guarantors”) and
Banc of America Securities LLC, as Representative (the “Representative”) of the several Initial
Purchasers listed on Schedule A to the Purchase Agreement (collectively, the “Initial Purchasers”).
This Agreement is made pursuant to the Purchase Agreement, dated March 9, 2010 among the
Company, the Guarantors and the Initial Purchasers (the “Purchase Agreement”), which provides for
the sale by the Company to the Initial Purchasers of an aggregate of $210 million principal amount
of the Company’s 9.0% Senior Subordinated Notes due 2018, Series A, and related guarantees
(collectively, the “Securities”). In order to induce the Initial Purchasers to enter into the
Purchase Agreement, the Company has agreed to provide to the Initial Purchasers and their direct
and indirect transferees the registration rights set forth in this Agreement. The execution of
this Agreement is a condition to the closing under the Purchase Agreement.
In consideration of the foregoing, the parties hereto agree as follows:
1. Definitions.
As used in this Agreement, the following capitalized defined terms shall have the following
meanings:
“1933 Act” shall mean the Securities Act of 1933, as amended from time to time.
“1934 Act” shall mean the Securities Exchange Act of l934, as amended from time
to time.
“Affiliate” shall mean, with respect to any specified Person, any entity
controlled by or under common control with or that controls such Person.
“Closing Date” shall mean the Closing Date as defined in the Purchase
Agreement.
“Company” shall have the meaning set forth in the preamble and shall also
include the Company’s successors.
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“Depositary” shall mean The Depository Trust Company, or any other depositary
appointed by the Company, provided, however, that such depositary must have an address in
the Borough of Manhattan, in the City of New York.
“Exchange Offer” shall mean the exchange offer by the Company of Exchange
Securities for Registrable Securities pursuant to Section 2.1 hereof.
“Exchange Offer Registration” shall mean a registration under the 1933 Act
effected pursuant to Section 2.1 hereof.
“Exchange Offer Registration Statement” shall mean an exchange offer
registration statement on Form S-4 (or, if applicable, on another appropriate form), and all
amendments and supplements to such registration statement, including the Prospectus
contained therein, all exhibits thereto and all documents incorporated by reference therein.
“Exchange Period” shall have the meaning set forth in Section 2.1 hereof.
“Exchange Securities” shall mean (i) the 9.0% Senior Subordinated Notes due
2018, Series B, issued by the Company and (ii) the related guarantees issued by the
Guarantors, in each case under the Indenture containing terms identical to the Securities in
all material respects (except for references to certain interest rate provisions,
restrictions on transfers and restrictive legends), to be offered to Holders of Securities
in exchange for Registrable Securities pursuant to the Exchange Offer.
“Holder” shall mean an Initial Purchaser, for so long as it owns any
Registrable Securities, and each of its successors, assigns and direct and indirect
transferees who become registered owners of Registrable Securities under the Indenture and
each Participating Broker-Dealer that holds Exchange Securities for so long as such
Participating Broker-Dealer is required to deliver a prospectus meeting the requirements of
the 1933 Act in connection with any resale of such Exchange Securities.
“Indenture” shall mean the Indenture relating to the Securities, the Exchange
Securities and the Private Exchange Securities, dated as of March 12, 2010 between the
Company, the Guarantors and U.S. Bank National Association, as trustee, as the same may be
amended, supplemented, waived or otherwise modified from time to time in accordance with the
terms thereof.
“Initial Purchasers” shall have the meaning set forth in the preamble.
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“Majority Holders” shall mean the Holders of a majority of the aggregate
principal amount of Outstanding (as defined in the Indenture) Registrable Securities;
provided that whenever the consent or approval of Holders of a specified percentage of
Registrable Securities is required hereunder, Registrable Securities held by the Company and
other obligors on the Securities or any affiliate (as defined in the Indenture) of the
Company shall be disregarded in determining whether such consent or approval was given by
the Holders of such required percentage amount.
“Participating Broker-Dealer” shall mean any of Banc of America Securities LLC,
X.X. Xxxxxx Securities Inc. and Comerica Securities, Inc. and any other broker-dealer which
makes a market in the Securities and exchanges Registrable Securities in the Exchange Offer
for Exchange Securities.
“Person” shall mean an individual, partnership (general or limited),
corporation, limited liability company, trust or unincorporated organization, or a
government or agency or political subdivision thereof.
“Private Exchange” shall have the meaning set forth in Section 2.1 hereof.
“Private Exchange Securities” shall have the meaning set forth in Section 2.1
hereof.
“Prospectus” shall mean the prospectus included in a Registration Statement,
including any preliminary prospectus, and any such prospectus as amended or supplemented by
any prospectus supplement, including any such prospectus supplement with respect to the
terms of the offering of any portion of the Registrable Securities covered by a Shelf
Registration Statement, and by all other amendments and supplements to a prospectus,
including post-effective amendments, and in each case including all material incorporated by
reference therein.
“Purchase Agreement” shall have the meaning set forth in the preamble.
“Registrable Securities” shall mean the Securities and, if issued, the Private
Exchange Securities; provided, however, that the Securities and, if issued, the Private
Exchange Securities, shall cease to be Registrable Securities upon the earliest to occur of
(i) a Registration Statement with respect to such Securities and, if issued, such Private
Exchange Securities, shall have been declared effective under the 1933 Act and such
Securities or Private Exchange Securities, as the case may be, shall have been disposed of
pursuant to such Registration Statement, (ii) such Securities and, if issued, such Private
Exchange Securities have been sold
to the public pursuant to Rule l44 (or any similar provision then in force, but not
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Rule 144A) under the 1933 Act, (iii) such Securities or Private Exchange Securities, as the
case may be, shall have ceased to be outstanding or (iv) the Exchange Offer is consummated
(except in the case of Securities purchased from the Company and continued to be held by the
Initial Purchasers).
“Registration Expenses” shall mean any and all expenses incident to performance
of or compliance by the Company with this Agreement, including without limitation: (i) all
SEC, stock exchange or the Financial Industry Regulatory Authority, Inc. (“FINRA”)
registration and filing fees, including, if applicable, the fees and expenses of any
“qualified independent underwriter” (and the reasonable fees and expenses of its counsel)
that is required to be retained by any holder of Registrable Securities in accordance with
the rules and regulations of FINRA, (ii) all fees and expenses incurred in connection with
compliance with state securities or blue sky laws and compliance with the rules of FINRA
(including reasonable fees and disbursements of counsel for any underwriters or Holders in
connection with blue sky qualification of any of the Exchange Securities or Registrable
Securities and any filings with FINRA), (iii) all expenses of any Persons in preparing or
assisting in preparing, word processing, printing and distributing any Registration
Statement, any Prospectus, any amendments or supplements thereto, any underwriting
agreements, securities sales agreements and other documents relating to the performance of
and compliance with this Agreement, (iv) all fees and expenses incurred in connection with
the listing, if any, of any of the Registrable Securities on any securities exchange or
exchanges, (v) all rating agency fees, (vi) the fees and disbursements of counsel for the
Company and of the independent public accountants of the Company, including the expenses of
any special audits or “cold comfort” letters required by or incident to such performance and
compliance, (vii) the fees and expenses of the Trustee, and any escrow agent or custodian,
(viii) the reasonable fees and expenses of the Initial Purchasers in connection with the
Exchange Offer, including the reasonable fees and expenses of Fried, Frank, Harris, Xxxxxxx
& Xxxxxxxx LLP in connection therewith and (ix) any fees and disbursements of the
underwriters customarily required to be paid by issuers or sellers of securities and the
fees and expenses of any special experts retained by the Company in connection with any
Registration Statement, but excluding underwriting discounts and commissions and transfer
taxes, if any, relating to the sale or disposition of Registrable Securities by a Holder.
“Registration Statement” shall mean any registration statement of the Company
which covers any of the Exchange Securities or Registrable Securities pursuant to the
provisions of this Agreement, and all amendments and supplements
to any such Registration Statement, including post-effective
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amendments, in each case
including the Prospectus contained therein, all exhibits thereto and all material
incorporated by reference therein.
“SEC” shall mean the Securities and Exchange Commission or any successor agency
or government body performing the functions currently performed by the United States
Securities and Exchange Commission.
“Shelf Registration” shall mean a registration effected pursuant to Section 2.2
hereof.
“Shelf Registration Statement” shall mean a “shelf” registration statement of
the Company pursuant to the provisions of Section 2.2 of this Agreement which covers
Registrable Securities or Private Exchange Securities on an appropriate form under Rule 415
under the 1933 Act, or any similar rule that may be adopted by the SEC, and all amendments
and supplements to such registration statement, including post-effective amendments, in each
case including the Prospectus contained therein, all exhibits thereto and all material
incorporated by reference therein.
“Trustee” shall mean the trustee with respect to the Securities, the Exchange
Securities and the Private Exchange Securities under the Indenture.
2. Registration Under the 0000 Xxx.
2.1 Exchange Offer. The Company and the Guarantors shall, for the benefit of the
Holders, at the Company’s and the Guarantors’ cost, use their commercially reasonable efforts to
(A) prepare and file with the SEC an Exchange Offer Registration Statement on an appropriate form
under the 1933 Act with respect to a proposed Exchange Offer and the issuance and delivery to the
Holders, in exchange for the Registrable Securities (other than Private Exchange Securities), of a
like principal amount of Exchange Securities, (B) to cause the Exchange Offer Registration
Statement to be declared effective under the 1933 Act, (C) keep the Exchange Offer Registration
Statement effective until the closing of the Exchange Offer and (D) cause the Exchange Offer to be
consummated not later than 270 days following the Closing Date. The Exchange Securities will be
issued under the Indenture. Upon the effectiveness of the Exchange Offer Registration Statement,
the Company and the Guarantors shall promptly commence the Exchange Offer, it being the objective
of such Exchange Offer to enable each Holder eligible and electing to exchange Registrable
Securities for Exchange Securities (assuming that such Holder (a) is not an affiliate of the
Company within the meaning of Rule 405 under the 1933 Act, (b) is not a broker-dealer tendering
Registrable Securities acquired directly from the Company for its own account, (c) acquired the
Exchange Securities in the ordinary course of such Holder’s business and (d) has no
arrangements or understandings with any Person to participate in the Exchange Offer for
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the purpose
of distributing the Exchange Securities, and has made representations to the Company to that
effect) to transfer such Exchange Securities from and after their receipt without any limitations
or restrictions under the 1933 Act and under state securities or blue sky laws.
In connection with the Exchange Offer, the Company and the Guarantors shall:
(a) mail as promptly as practicable after the Exchange Offer Registration Statement has been
declared effective under the 1933 Act to each Holder a copy of the Prospectus forming part of the
Exchange Offer Registration Statement, together with an appropriate letter of transmittal and
related documents;
(b) keep the Exchange Offer open for acceptance for a period of not less than 30 calendar days
after the date notice thereof is mailed to the Holders (or longer if required by applicable law)
(such period referred to herein as the “Exchange Period”);
(c) utilize the services of the Depositary for the Exchange Offer;
(d) permit Holders to withdraw tendered Registrable Securities at any time prior to 5:00 p.m.
(Eastern Standard Time), on the last business day of the Exchange Period, by sending to the
institution specified in the notice, a telegram, telex, facsimile transmission or letter setting
forth the name of such Holder, the principal amount of Registrable Securities delivered for
exchange, and a statement that such Holder is withdrawing such Holder’s election to have such
Registrable Securities exchanged;
(e) notify each Holder that any Registrable Security not tendered will remain outstanding and
continue to accrue interest, but will not retain any rights under this Agreement (except in the
case of the Initial Purchasers and Participating Broker-Dealers as provided herein); and
(f) otherwise comply in all respects with all applicable laws relating to the Exchange Offer.
If, prior to consummation of the Exchange Offer, the Initial Purchasers hold any Securities
acquired by them and having the status of an unsold allotment in the initial distribution, the
Company and the Guarantors upon the request of any Initial Purchaser shall, simultaneously with the
delivery of the Exchange Securities in the Exchange Offer, issue and deliver to such Initial
Purchaser in exchange (the “Private Exchange”) for the Securities held by such Initial Purchaser, a
like principal amount of debt securities of the
Company, guaranteed by the Guarantors on a senior subordinated basis, that are identical
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(except that such securities shall bear appropriate transfer restrictions) to the Exchange
Securities (the “Private Exchange Securities”).
The Exchange Securities and the Private Exchange Securities shall be issued under (i) the
Indenture or (ii) an indenture identical in all material respects to the Indenture and which, in
either case, has been qualified under the Trust Indenture Act of 1939, as amended (the “TIA”), or
is exempt from such qualification and shall provide that the Exchange Securities shall not be
subject to the transfer restrictions set forth in the Indenture but that the Private Exchange
Securities shall be subject to such transfer restrictions. The Indenture or such indenture shall
provide that the Exchange Securities, the Private Exchange Securities and the Securities shall vote
and consent together on all matters as one class and that none of the Exchange Securities, the
Private Exchange Securities or the Securities will have the right to vote or consent as a separate
class on any matter. The Private Exchange Securities shall be of the same series as and the
Company and the Guarantors shall use all commercially reasonable efforts to have the Private
Exchange Securities bear the same CUSIP number as the Exchange Securities. Neither the Company nor
any of the Guarantors shall have any liability under this Agreement solely as a result of such
Private Exchange Securities not bearing the same CUSIP number as the Exchange Securities.
As soon as practicable after the close of the Exchange Offer and/or the Private Exchange, as
the case may be, the Company and the Guarantors shall:
(i) accept for exchange all Registrable Securities duly tendered and not
validly withdrawn pursuant to the Exchange Offer in accordance with the terms of the
Exchange Offer Registration Statement and the letter of transmittal which shall be
an exhibit thereto;
(ii) accept for exchange all Securities properly tendered pursuant to the
Private Exchange;
(iii) deliver, or cause to be delivered, to the Trustee for cancellation all
Registrable Securities so accepted for exchange; and
(iv) cause the Trustee promptly to authenticate and deliver Exchange Securities
or Private Exchange Securities, as the case may be, to each Holder of Registrable
Securities so accepted for exchange in a principal amount equal to the principal
amount of the Registrable Securities of such Holder so accepted for exchange.
Interest on each Exchange Security and Private Exchange Security will accrue from the last
date on which interest was paid on the Registrable Securities surrendered in exchange therefor or,
if no interest has been paid on the Registrable
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Securities, from the date of original issuance.
The Exchange Offer and the Private Exchange shall not be subject to any conditions, other than
(i) that the Exchange Offer or the Private Exchange, or the making of any exchange by a Holder,
does not violate applicable law or any applicable interpretation of the staff of the SEC, (ii) the
due tendering of Registrable Securities shall be in accordance with the Exchange Offer and the
Private Exchange, (iii) that each Holder of Registrable Securities exchanged in the Exchange Offer
shall have represented that all Exchange Securities to be received by it shall be acquired in the
ordinary course of its business and that at the time of the consummation of the Exchange Offer it
shall have no arrangement or understanding with any person to participate in the distribution
(within the meaning of the 0000 Xxx) of the Exchange Securities and shall have made such other
representations as may be reasonably necessary under applicable SEC rules, regulations or
interpretations to render the use of Form S-4 or other appropriate form under the 1933 Act
available and (iv) that no action or proceeding shall have been instituted or threatened in any
court or by or before any governmental agency with respect to the Exchange Offer or the Private
Exchange which, in the Company’s and the Guarantors’ judgment, would reasonably be expected to
impair the ability of the Company and the Guarantors to proceed with the Exchange Offer or the
Private Exchange. The Company and the Guarantors shall inform the Initial Purchasers of the names
and addresses of the Holders to whom the Exchange Offer is made, and the Initial Purchasers shall
have the right to contact such Holders and otherwise facilitate the tender of Registrable
Securities in the Exchange Offer.
2.2 Shelf Registration. (i) If, because of any changes in law, SEC rules or
regulations or applicable interpretations thereof by the staff of the SEC, the Company and the
Guarantors are not permitted to effect the Exchange Offer as contemplated by Section 2.1 hereof,
(ii) if for any other reason the Exchange Offer is not consummated within 270 days after the
original issue of the Registrable Securities, (iii) upon the request of any of the Initial
Purchasers with respect to Registrable Securities not eligible to be exchanged for Exchange
Securities in the Exchange Offer, (iv) if a Holder is not permitted by applicable law to
participate in the Exchange Offer or (v) in the case of any Holder that participates in an Exchange
Offer, such Holder does not receive Exchange Securities acquired by it in the Exchange Offer that
may be sold without restriction under state and federal securities laws (other than due solely to
the status of such Holder as an affiliate of the Company within the meaning of the 1933 Act), then
in case of each of clauses (i) through (v) the Company and the Guarantors shall, at their cost:
(a) As promptly as practicable, file with the SEC, and thereafter shall use
their commercially reasonable efforts to cause to be declared
effective within 270 days after the original issue of the Registrable
Securities, a Shelf Registration Statement relating to the offer and sale of the
Registrable Securities by the Holders from time to time in accordance with the
methods of distribution elected by the Majority Holders
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participating in the Shelf
Registration and set forth in such Shelf Registration Statement.
(b) Use their commercially reasonable efforts to keep the Shelf Registration
Statement continuously effective in order to permit the Prospectus forming part
thereof to be usable by Holders until the earliest of (i) two years after the
original issue date of the Registrable Securities, (ii) such time as all Registrable
Securities covered by the Shelf Registration Statement have been sold pursuant to
the Shelf Registration Statement or (iii) the date upon which all Registrable
Securities covered by Shelf Registration Statement become eligible for resale under
Rule 144, without regard to volume, manner of sale or other restrictions contained
in Rule 144 or (iv) all Registrable Securities cease to be outstanding or otherwise
to be Registrable Securities (the “Effectiveness Period”); provided, however, that
the Effectiveness Period in respect of the Shelf Registration Statement shall be
extended to the extent required to permit dealers to comply with the applicable
prospectus delivery requirements of Rule 174 under the 1933 Act and as otherwise
provided herein.
(c) Notwithstanding any other provisions hereof, use their commercially
reasonable efforts to ensure that (i) any Shelf Registration Statement and any
amendment thereto and any Prospectus forming part thereof and any supplement thereto
complies in all material respects with the 1933 Act and the rules and regulations
thereunder, (ii) any Shelf Registration Statement and any amendment thereto does
not, when it becomes effective, contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary to make the
statements therein not misleading and (iii) any Prospectus forming part of any Shelf
Registration Statement, and any supplement to such Prospectus (as amended or
supplemented from time to time), does not include an untrue statement of a material
fact or omit to state a material fact necessary in order to make the statements, in
light of the circumstances under which they were made, not misleading.
The Company and the Guarantors shall not permit any securities other than Registrable
Securities to be included in the Shelf Registration Statement. The Company and the Guarantors
further agree, if necessary, to supplement or amend the Shelf Registration Statement, as required
by Section 3(b) below, and to furnish to the Holders
of Registrable Securities copies of any such supplement or amendment promptly after its being
used or filed with the SEC.
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2.3 Expenses. The Company and the Guarantors shall pay all Registration Expenses in
connection with the registration pursuant to Section 2.1 or 2.2. Each Holder shall pay all
underwriting discounts and commissions and transfer taxes, if any, relating to the sale or
disposition of such Holder’s Registrable Securities pursuant to the Shelf Registration Statement.
2.4. Effectiveness. (a) The Company and the Guarantors will be deemed not to have
used their commercially reasonable efforts to cause the Exchange Offer Registration Statement or
the Shelf Registration Statement, as the case may be, to become, or to remain, effective during the
requisite period if the Company or any of the Guarantors voluntarily takes any action that would,
or omits to take any action which omission would, result in any such Registration Statement not
being declared effective or in the Holders of Registrable Securities covered thereby not being able
to exchange or offer and sell such Registrable Securities during that period as and to the extent
contemplated hereby, unless such action is required by applicable law.
(b) An Exchange Offer Registration Statement pursuant to Section 2.1 hereof or a Shelf
Registration Statement pursuant to Section 2.2 hereof will not be deemed to have become effective
unless it has been declared effective by the SEC; provided, however, that if, after it has been
declared effective, the offering of (i) Registrable Securities pursuant to an Exchange Offer
Registration Statement or (ii) Registrable Securities pursuant to a Shelf Registration Statement is
interfered with by any stop order, injunction or other order or requirement of the SEC or any other
governmental agency or court, such Registration Statement will be deemed not to have become
effective during the period of such interference, until the offering of such Registrable Securities
pursuant to such Registration Statement may legally resume.
2.5 Interest. If the Exchange Offer is not consummated or a Shelf Registration
Statement is not declared effective, in either case, on or prior to the 270th calendar day
following the date of original issue of the Securities (either such event , a “Registration
Default”), the interest rate borne by the Securities and the Private Exchange Securities shall be
increased (“Additional Interest”) by one-quarter of one percent per annum upon the occurrence of
each Registration Default, which rate will increase by one quarter of one percent each 90-day
period that such Additional Interest continues to accrue under any such circumstance, provided that
the maximum aggregate increase in the interest rate will in no event exceed one percent (1%) per
annum. Following the cure of all Registration Defaults, the accrual of Additional Interest will
cease and the interest rate will revert to the original rate.
If the Shelf Registration Statement is declared effective but shall thereafter become unusable
by the Holders for any reason, and the aggregate number of days in any consecutive twelve-month
period for which the Shelf Registration Statement shall not be
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usable exceeds 30 days in the
aggregate, then the interest rate borne by the Securities and the Private Exchange Securities (so
long as the Private Exchange Securities have the status of an unsold allotment at the time of the
Exchange Offer) will be increased by 0.25% per annum of the principal amount of the Securities and
the Private Exchange Securities for the first 90-day period (or portion thereof) beginning on the
31st such date that such Shelf Registration Statement ceases to be usable, which rate
shall be increased by an additional 0.25% per annum of the principal amount of the Securities and
the Private Exchange (so long as the Private Exchange Securities have the status of an unsold
allotment at the time of the Exchange Offer) at the beginning of each subsequent 90-day period,
provided that the maximum aggregate increase in the interest rate will in no event exceed one
percent (1%) per annum. Any amounts payable under this paragraph shall also be deemed “Additional
Interest” for purposes of this Agreement. Upon the Shelf Registration Statement once again
becoming usable, the interest rate borne by the Securities and the Private Exchange Securities will
be reduced to the original interest rate if the Company is otherwise in compliance with this
Agreement at such time. Additional Interest shall be computed based on the actual number of days
elapsed in each 90-day period in which the Shelf Registration Statement is unusable.
The Company and the Guarantors shall notify the Trustee within five business days after each
and every date on which an event occurs in respect of which Additional Interest is required to be
paid (an “Event Date”). Additional Interest shall be paid by depositing with the Trustee, in
trust, for the benefit of the Holders of Registrable Securities, on or before the applicable
semiannual interest payment date, immediately available funds in sums sufficient to pay the
Additional Interest then due. The Additional Interest due shall be payable on each interest
payment date to the record Holder of Securities and Private Exchange Securities entitled to receive
the interest payment to be paid on such date as set forth in the Indenture. Each obligation to pay
Additional Interest shall be deemed to accrue from and including the day following the applicable
Event Date.
3. Registration Procedures.
In connection with the obligations of the Company and the Guarantors with respect to
Registration Statements pursuant to Sections 2.1 and 2.2 hereof, the Company and the Guarantors
shall:
(a) prepare and file with the SEC a Registration Statement, within the relevant time period
specified in Section 2, on the appropriate form under the 1933 Act, which form (i) shall be
selected by the Company and the Guarantors, (ii) shall, in the case
of a Shelf Registration, be available for the sale of the Registrable Securities by the
selling Holders thereof, (iii) shall comply as to form in all material respects with the
requirements of the applicable form and include or incorporate by reference all financial
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statements required by the SEC to be filed therewith or incorporated by reference therein, and
(iv) shall comply in all respects with the requirements of Regulation S-T under the 1933 Act, and
use their commercially reasonable efforts to cause such Registration Statement to become effective
and remain effective in accordance with Section 2 hereof;
(b) prepare and file with the SEC such amendments and post-effective amendments to each
Registration Statement as may be necessary under applicable law to keep such Registration Statement
effective for the applicable period; and cause each Prospectus to be supplemented by any required
prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 (or any similar
provision then in force) under the 1933 Act and comply with the provisions of the 1933 Act, the
1934 Act and the rules and regulations thereunder applicable to them with respect to the
disposition of all securities covered by each Registration Statement during the applicable period
in accordance with the intended method or methods of distribution by the selling Holders thereof
(including sales by any Participating Broker-Dealer);
(c) in the case of a Shelf Registration, (i) notify each Holder of Registrable Securities, at
least five business days prior to filing, that a Shelf Registration Statement with respect to the
Registrable Securities is being filed and advising such Holders that the distribution of
Registrable Securities will be made in accordance with the method selected by the Majority Holders
participating in the Shelf Registration; (ii) furnish to each Holder of Registrable Securities and
to each underwriter of an underwritten offering of Registrable Securities, if any, without charge,
as many copies of each Prospectus, including each preliminary Prospectus, and any amendment or
supplement thereto and such other documents as such Holder or underwriter may reasonably request,
including financial statements and schedules and, if the Holder so requests, all exhibits, in order
to facilitate the public sale or other disposition of the Registrable Securities; and (iii) hereby
consent to the use of the Prospectus or any amendment or supplement thereto by each of the selling
Holders of Registrable Securities in connection with the offering and sale of the Registrable
Securities covered by the Prospectus or any amendment or supplement thereto;
(d) in the case of a Shelf Registration, use their commercially reasonable efforts to register
or qualify the Registrable Securities under all applicable state securities or “blue sky” laws of
such jurisdictions as any Holder of Registrable Securities covered by a Registration Statement and
each underwriter of an underwritten offering of Registrable Securities shall reasonably request by
the time the applicable Registration Statement is declared effective by the SEC, and do any and all
other acts and things which may be reasonably necessary or advisable to enable each such Holder and
underwriter to
consummate the disposition in each such jurisdiction of such Registrable Securities owned by
such Holder; provided, however, that none of the Company and the Guarantors shall be required to
(i) qualify as a foreign corporation or as a dealer in
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securities in any jurisdiction where it
would not otherwise be required to qualify but for this Section 3(d), or (ii) take any action which
would subject it to general service of process or taxation in any such jurisdiction where it is not
then so subject;
(e) notify promptly each Holder of Registrable Securities under a Shelf Registration or any
Participating Broker-Dealer who has notified the Company and the Guarantors that it is utilizing
the Exchange Offer Registration Statement as provided in paragraph (f) below and, if requested by
such Holder or Participating Broker-Dealer, confirm such advice in writing promptly (i) when a
Registration Statement has become effective and when any post-effective amendments and supplements
thereto become effective, (ii) of any request by the SEC or any state securities authority for
post-effective amendments and supplements to a Registration Statement and Prospectus or for
additional information after the Registration Statement has become effective, (iii) of the issuance
by the SEC or any state securities authority of any stop order suspending the effectiveness of a
Registration Statement or the initiation of any proceedings for that purpose, (iv) in the case of a
Shelf Registration, if, between the effective date of such Registration Statement and the closing
of any sale of Registrable Securities covered thereby, the representations and warranties of the
Company and the Guarantors contained in any underwriting agreement, securities sales agreement or
other similar agreement, if any, relating to the offering cease to be true and correct in all
material respects, (v) of the happening of any event or the discovery of any facts during the
period a Shelf Registration Statement is effective which makes any statement made in such
Registration Statement or the related Prospectus untrue in any material respect or which requires
the making of any changes in such Registration Statement or Prospectus in order to make the
statements therein not misleading, (vi) of the receipt by the Company of any notification with
respect to the suspension of the qualification of the Registrable Securities or the Exchange
Securities, as the case may be, for sale in any jurisdiction or the initiation or threatening of
any proceeding for such purpose and (vii) of any determination by the Company that a post-effective
amendment to such Registration Statement would be appropriate;
(f) in the case of the Exchange Offer Registration Statement (i) include in the Exchange Offer
Registration Statement a section entitled “Plan of Distribution” which section shall be reasonably
acceptable to the Representative on behalf of the Participating Broker-Dealers, and which shall
contain a summary statement of the positions taken or policies made public by the staff of the SEC
with respect to the potential “underwriter” status of any broker-dealer that holds Registrable
Securities acquired for its own account as a result of market-making activities or other trading
activities and that will be the beneficial owner (as defined in Rule 13d-3 promulgated
under the 0000 Xxx) of Exchange Securities to be received by such broker-dealer in the
Exchange Offer, including a statement that any such broker-dealer who receives Exchange Securities
for Registrable Securities pursuant to the Exchange Offer may be
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deemed a statutory underwriter and
must deliver a prospectus meeting the requirements of the 1933 Act in connection with any resale of
such Exchange Securities, (ii) furnish to each Participating Broker-Dealer who has delivered to the
Company the notice referred to in Section 3(e), without charge, as many copies of each Prospectus
included in the Exchange Offer Registration Statement, including any preliminary prospectus, and
any amendment or supplement thereto, as such Participating Broker-Dealer may reasonably request,
(iii) hereby consent to the use of the Prospectus forming part of the Exchange Offer Registration
Statement or any amendment or supplement thereto, by any Person subject to the prospectus delivery
requirements of the SEC, including all Participating Broker-Dealers, in connection with the sale or
transfer of the Exchange Securities covered by the Prospectus or any amendment or supplement
thereto, and (iv) include in the transmittal letter or similar documentation to be executed by an
exchange offeree in order to participate in the Exchange Offer (x) the following provision:
“If the exchange offeree is a broker-dealer holding Registrable Securities acquired
for its own account as a result of market-making activities or other trading
activities, it will deliver a prospectus meeting the requirements of the 1933 Act in
connection with any resale of Exchange Securities received in respect of such
Registrable Securities pursuant to the Exchange Offer;” and
(y) a statement to the effect that by a broker-dealer making the acknowledgment described in
clause (x) and by delivering a Prospectus in connection with the exchange of Registrable
Securities, the broker-dealer will not be deemed to admit that it is an underwriter within the
meaning of the 1933 Act;
(g) (i) in the case of an Exchange Offer, furnish counsel for the Initial Purchasers and
(ii) in the case of a Shelf Registration, furnish counsel for the Holders of Registrable Securities
copies of any comment letters received from the SEC or any other request by the SEC or any state
securities authority for amendments or supplements to a Registration Statement and Prospectus or
for additional information;
(h) use commercially reasonable efforts to obtain the withdrawal of any order suspending the
effectiveness of a Registration Statement at the earliest possible moment;
(i) in the case of a Shelf Registration, furnish to each Holder of Registrable Securities, and
each underwriter, if any, without charge, at least one conformed copy of each Registration
Statement and any post-effective amendment
thereto, including financial statements and schedules (without documents incorporated therein
by reference and all exhibits thereto, unless requested);
- 14 -
(j) in the case of a Shelf Registration, cooperate with the selling Holders of Registrable
Securities to facilitate the timely preparation and delivery of certificates representing
Registrable Securities to be sold and not bearing any restrictive legends; and enable such
Registrable Securities to be in such denominations (consistent with the provisions of the
Indenture) and registered in such names as the selling Holders or the underwriters, if any, may
reasonably request at least three business days prior to the closing of any sale of Registrable
Securities;
(k) in the case of a Shelf Registration, upon the occurrence of any event or the discovery of
any facts, each as contemplated by Sections 3(e)(v) and 3(e)(vi) hereof, as promptly as practicable
after the occurrence of such an event, use their commercially reasonable efforts to prepare a
supplement or post-effective amendment to the Registration Statement or the related Prospectus or
any document incorporated therein by reference or file any other required document so that, as
thereafter delivered to the purchasers of the Registrable Securities or Participating
Broker-Dealers, such Prospectus will not contain at the time of such delivery any untrue statement
of a material fact or omit to state a material fact necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading or will remain so qualified.
At such time as such public disclosure is otherwise made or the Company determines that such
disclosure is not necessary, in each case to correct any misstatement of a material fact or to
include any omitted material fact, the Company agrees promptly to notify each Holder of such
determination and to furnish each Holder such number of copies of the Prospectus as amended or
supplemented, as such Holder may reasonably request;
(l) in the case of a Shelf Registration, within a reasonable time prior to the filing of any
Registration Statement, any Prospectus, any amendment to a Registration Statement or amendment or
supplement to a Prospectus or any document which is to be incorporated by reference into a
Registration Statement or a Prospectus after initial filing of a Registration Statement or any
“issuer free writing prospectus” as defined in Rule 433 under the 1933 Act (“Issuer Free Writing
Prospectus”), provide copies of such document to the Initial Purchasers on behalf of such Holders;
and make representatives of the Company and the Guarantors as shall be reasonably requested by the
Holders of Registrable Securities, or the Initial Purchasers on behalf of such Holders, available
for discussion of such document;
(m) use their commercially reasonable efforts to obtain a CUSIP number for all Exchange
Securities, Private Exchange Securities or Registrable Securities, as the case may be, not later
than the effective date of a Registration Statement, and provide the Trustee with printed
certificates for the Exchange Securities, Private Exchange Securities
or the Registrable Securities, as the case may be, in a form eligible for deposit with the
Depositary;
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(n) (i) cause the Indenture to be qualified under the TIA in connection with the registration
of the Exchange Securities or Registrable Securities, as the case may be, (ii) cooperate with the
Trustee and the Holders to effect such changes to the Indenture as may be required for the
Indenture to be so qualified in accordance with the terms of the TIA and (iii) execute, and use
their commercially reasonable efforts to cause the Trustee to execute, all documents as may be
required to effect such changes, and all other forms and documents required to be filed with the
SEC to enable the Indenture to be so qualified in a timely manner;
(o) in the case of a Shelf Registration, enter into agreements (including underwriting
agreements) and take all other customary and appropriate actions in order to expedite or facilitate
the disposition of such Registrable Securities and in such connection whether or not an
underwriting agreement is entered into and whether or not the registration is an underwritten
registration:
(i) make such representations and warranties to the Holders of such Registrable
Securities and the underwriters, if any, in form, substance and scope as are
customarily made by issuers to underwriters in similar underwritten offerings as may
be reasonably requested by them;
(ii) obtain opinions of counsel to the Company and the Guarantors and updates
thereof (which counsel and opinions (in form, scope and substance) shall be
reasonably satisfactory to the managing underwriters, if any, and the holders of a
majority in principal amount of the Registrable Securities being sold) addressed to
each selling Holder and the underwriters, if any, covering the matters customarily
covered in opinions requested in sales of securities or underwritten offerings and
such other matters as may be reasonably requested by such Holders and underwriters;
(iii) obtain “cold comfort” letters and updates thereof from the Company’s and
the Guarantors’ independent certified public accountants (and, if necessary, any
other independent certified public accountants of any subsidiary of the Company or
of any business acquired by the Company for which financial statements are, or are
required to be, included in the Registration Statement) addressed to the
underwriters, if any, and use commercially reasonable efforts to have such letter
addressed to the selling Holders of Registrable Securities (to the extent consistent
with Statement on Auditing Standards No. 72 of the American Institute of Certified
Public Accountants), such letters to be in customary form and covering matters of
the type customarily covered in “cold comfort” letters to underwriters in
connection with similar underwritten offerings;
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(iv) if an underwriting agreement is entered into, cause the same to set forth
indemnification provisions and procedures substantially equivalent to the
indemnification provisions and procedures set forth in Section 4 hereof with respect
to the underwriters and all other parties to be indemnified pursuant to said Section
or, at the request of any underwriters, in the form customarily provided to such
underwriters in similar types of transactions; provided such underwriting agreement
shall contain customary provisions regarding indemnification of the Company and the
Guarantors with the respect to information provided by the underwriters; and
(v) deliver such documents and certificates as may be reasonably requested and
as are customarily delivered in similar offerings to the Holders of a majority in
principal amount of the Registrable Securities being sold and the managing
underwriters, if any.
The above shall be done at (i) the effectiveness of such Registration Statement (and each
post-effective amendment thereto) and (ii) each closing under any underwriting or similar agreement
as and to the extent required thereunder. In the case of any underwritten offering, the Company
and the Guarantors shall provide written notice to the Holders of all Registrable Securities of
such underwritten offering at least 15 days prior to the filing of a prospectus supplement for such
underwritten offering. Such notice shall (x) offer each such Holder the right to participate in
such underwritten offering, (y) specify a date, which shall be no earlier than 10 days following
the date of such notice, by which such Holder must inform the Company of its intent to participate
in such underwritten offering and (z) include the instructions such Holder must follow in order to
participate in such underwritten offering;
(p) in the case of a Shelf Registration or if a Prospectus is required to be delivered by any
Participating Broker-Dealer in the case of an Exchange Offer, make available for inspection during
regular business hours by representatives of the Holders of the Registrable Securities, any
underwriters participating in any disposition pursuant to a Shelf Registration Statement, any
Participating Broker-Dealer and any counsel or accountant retained by any of the foregoing
(collectively, the “Inspectors”), all financial and other records, pertinent corporate documents
and properties of the Company and the Guarantors (“Records”) reasonably requested by any such
persons, and cause the respective officers, directors, employees, and any other agents of the
Company and the Guarantors to supply all information reasonably requested by any such
representative, underwriter, special counsel or accountant in connection with a Registration
Statement, and make such representatives of the Company and the Guarantors available for
discussion of such documents as shall be reasonably requested by the Initial Purchasers.
Records which the Company determines, in good faith, to be confidential and any
- 17 -
Records which it
notifies the Inspectors are confidential shall be maintained in confidence and shall not be
disclosed by the Inspectors to any other Person until such time as (1) disclosure of such Records
is required to be set forth in the Shelf Registration Statement or a Prospectus in order that such
Shelf Registration Statement or Prospectus, as the case may be, does not contain an untrue
statement of material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading in the light of the circumstances then
existing (in which case the subject information may only be disclosed to another Person following
such time as the Shelf Registration Statement in which such information is included is publicly
filed by the Company with the SEC), (2) disclosure is required to be made in connection with a
court, administrative or regulatory proceeding or required by law (but only after prior written
notice of such requirement shall have given to the Company), (3) the information in such Records
has been made generally available to the public or (4) such other Person signs a confidentiality
agreement to maintain such Records in confidence in accordance with this Section 3(p). Each such
Inspector will be required to agree to keep information obtained by it as a result of its
inspections pursuant to this Agreement confidential (except as otherwise permitted to be disclosed
hereunder) and not to use such information as the basis for any market transactions in the
securities of the Company unless and until such is made generally available to the public. Each
Inspector will be required to further agree that it will, upon learning that disclosure of such
Records is sought under clause (1) above, give notice to the Company and allow the Company and its
subsidiaries at their expense to undertake appropriate action to prevent disclosure of the Records
deemed confidential;
(q) (i) in the case of an Exchange Offer Registration Statement, within a reasonable time
prior to the filing of any Exchange Offer Registration Statement, any Prospectus forming a part
thereof, any amendment to an Exchange Offer Registration Statement or amendment or supplement to
such Prospectus or any Issuer Free Writing Prospectus, provide copies of such document to the
Initial Purchasers and to counsel to both the Holders of Registrable Securities and make such
changes in any such document prior to the filing thereof as the Initial Purchasers or counsel to
the Holders of Registrable Securities may reasonably request and, except as otherwise required by
applicable law, not file any such document in a form to which the Initial Purchasers on behalf of
the Holders of Registrable Securities and counsel to the Holders of Registrable Securities shall
not have previously been advised and furnished a copy of or to which the Initial Purchasers on
behalf of the Holders of Registrable Securities or counsel to the Holders of Registrable Securities
shall reasonably object, and make the representatives of the Company and the Guarantors available
for discussion of such documents as shall be reasonably requested by the Initial Purchasers; and
(ii) in the case of a Shelf Registration, within a reasonable time prior to filing any Shelf
Registration Statement, any Prospectus forming a part thereof,
- 18 -
any amendment to such Shelf
Registration Statement or amendment or supplement to such Prospectus or any Issuer Free Writing
Prospectus, provide copies of such document to the Holders of Registrable Securities, to the
Initial Purchasers, to counsel for the Holders and to the underwriter or underwriters of an
underwritten offering of Registrable Securities, if any, make such changes in any such document
prior to the filing thereof as the Initial Purchasers, the counsel to the Holders or the
underwriter or underwriters reasonably request and not file any such document in a form to which
the Majority Holders, the Initial Purchasers on behalf of the Holders of Registrable Securities,
counsel for the Holders of Registrable Securities or any underwriter shall not have previously been
advised and furnished a copy of or to which the Majority Holders, the Initial Purchasers on behalf
of the Holders of Registrable Securities, counsel to the Holders of Registrable Securities or any
underwriter shall reasonably object, and make the representatives of the Company and the Guarantors
available for discussion of such document as shall be reasonably requested by the Holders of
Registrable Securities, the Initial Purchasers on behalf of such Holders, counsel for the Holders
of Registrable Securities or any underwriter.
(r) in the case of a Shelf Registration, use their commercially reasonable efforts to cause
all Registrable Securities to be listed on any securities exchange on which similar debt securities
issued by the Company are then listed if requested by the Majority Holders, or if reasonably
requested by the underwriter or underwriters of an underwritten offering of Registrable Securities,
if any;
(s) in the case of a Shelf Registration, use their commercially reasonable efforts to cause
the Registrable Securities to be rated by the appropriate rating agencies, if so requested by the
Majority Holders, or if requested by the underwriter or underwriters of an underwritten offering of
Registrable Securities, if any;
(t) otherwise comply with all applicable rules and regulations of the SEC and make available
to its security holders, as soon as reasonably practicable, an earnings statement covering at least
12 months which shall satisfy the provisions of Section 11(a) of the 1933 Act and Rule 158
promulgated thereunder;
(u) cooperate and assist in any filings required to be made with FINRA and, in the case of a
Shelf Registration, in the performance of any due diligence investigation by any underwriter and
its counsel (including any “qualified independent underwriter” that is required to be retained in
accordance with the rules and regulations of FINRA); and
(v) upon consummation of an Exchange Offer or a Private Exchange, obtain (i) a customary
opinion of counsel as may be required by the Trustee and (ii) an
- 19 -
officers’ certificate containing
the certifications substantially similar to those set forth in Section 5(e) of the Purchase
Agreement.
In the case of a Shelf Registration Statement, the Company and the Guarantors may (as a
condition to such Holder’s participation in the Shelf Registration) require each Holder of
Registrable Securities to furnish to the Company and the Guarantors such information regarding the
Holder and the proposed distribution by such Holder of such Registrable Securities as the Company
and the Guarantors may from time to time reasonably request in writing. The Company may exclude
from such Shelf Registration Statement the Registrable Securities of any Holder who fails to
furnish such information within a reasonable time (not to exceed 20 business days) after receiving
such request. Each Holder as to which any Shelf Registration Statement is being effected agrees to
as promptly as practicable furnish to the Company all information required to be disclosed in order
to make the information previously furnished to the Company by such Holder not materially
misleading.
In the case of a Shelf Registration Statement, each Holder agrees that, upon receipt of any
notice from the Company and the Guarantors of the happening of any event or the discovery of any
facts, each of the kind described in Section 3(e)(v) and 3(e)(vi) hereof, such Holder will
forthwith discontinue disposition of Registrable Securities pursuant to a Registration Statement
until such Holder’s receipt of the copies of the supplemented or amended Prospectus contemplated by
Section 3(k) hereof, and, if so directed by the Company and the Guarantors, such Holder will
deliver to the Company and the Guarantors (at their expense) all copies in such Holder’s
possession, other than permanent file copies then in such Holder’s possession, of the Prospectus
covering such Registrable Securities current at the time of receipt of such notice.
In the event that the Company and the Guarantors fail to effect the Exchange Offer or file any
Shelf Registration Statement and maintain the effectiveness of any Shelf Registration Statement as
provided herein, the Company and the Guarantors shall not file any registration statement (other
than registration statements on Forms S-4 or S-8) with respect to any securities (within the
meaning of Section 2(1) of the 0000 Xxx) of the Company and the Guarantors other than Registrable
Securities.
If any of the Registrable Securities covered by any Shelf Registration Statement are to be
sold in an underwritten offering, the underwriter or underwriters and manager or managers that will
manage such offering will be selected by the Majority Holders of such Registrable Securities
included in such offering and shall be acceptable to the Company and the Guarantors. No Holder of
Registrable Securities may participate in any underwritten registration hereunder unless such
Holder (a) agrees to sell such
Holder’s Registrable Securities on the basis provided in any underwriting arrangements
approved by the persons entitled hereunder to approve such arrangements and
- 20 -
(b) completes and
executes all questionnaires, powers of attorney, indemnities, underwriting agreements and other
documents required under the terms of such underwriting arrangements.
4. Indemnification; Contribution.
(a) The Company and the Guarantors, jointly and severally, agree to indemnify and hold
harmless each Initial Purchaser, each Holder, each Participating Broker-Dealer, each Person who
participates as an underwriter (any such Person being an “Underwriter”), each Person, if any, who
controls any Holder or Underwriter within the meaning of Section 15 of the 1933 Act or Section 20
of the 1934 Act and the respective Affiliates, directors, officers and employees of any of the
foregoing as follows:
(i) against any and all loss, liability, claim, damage and expense whatsoever,
as incurred, arising out of any untrue statement or alleged untrue statement of a
material fact contained in any Registration Statement (or any amendment or
supplement thereto) pursuant to which Exchange Securities or Registrable Securities
were registered under the 1933 Act, including all documents incorporated therein by
reference, 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
arising out of any untrue statement or alleged untrue statement of a material fact
contained in any Prospectus (or any amendment or supplement thereto) or Issuer Free
Writing Prospectus or the omission or alleged omission therefrom of a material fact
necessary in order to make the statements therein, in the light of the circumstances
under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and expense whatsoever,
as incurred, to the extent of the aggregate amount paid in settlement of any
litigation, or any investigation or proceeding by any governmental agency or body,
commenced or threatened, or of any claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue statement or omission; provided
that (subject to Section 4(d) below) any such settlement is effected with the
written consent of the Company and the Guarantors; and
(iii) against any and all expense whatsoever, as incurred (including the fees
and disbursements of counsel chosen by any indemnified party), reasonably incurred
in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever based upon
- 21 -
any such untrue
statement or omission, or any such alleged untrue statement or omission, to the
extent that any such expense is not paid under subparagraph (i) or (ii) above;
provided, however, that this indemnity agreement shall not apply to any loss, liability, claim,
damage or expense to the extent arising out of any untrue statement or omission or alleged untrue
statement or omission made in reliance upon and in conformity with written information furnished to
the Company and the Guarantors by or on behalf of the Initial Purchasers, the Holder, Participating
Broker-Dealer or Underwriter expressly for use in a Registration Statement (or any amendment
thereto) or any Prospectus (or any amendment or supplement thereto).
(b) Each Holder severally, but not jointly, agrees to indemnify and hold harmless the Company,
the Guarantors, the Initial Purchasers, each Underwriter and the other selling Holders, and each of
their respective Affiliates, directors, officers and employees, and each Person, if any, who
controls the Company, the Guarantors, the Initial Purchasers, any Underwriter or any other selling
Holder within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act, against any
and all loss, liability, claim, damage and expense described in the indemnity contained in
Section 4(a) hereof, as incurred, but only with respect to untrue statements or omissions, or
alleged untrue statements or omissions, made in the Shelf Registration Statement (or any amendment
thereto) or any Prospectus included therein (or any amendment or supplement thereto) or any Issuer
Free Writing Prospectus in reliance upon and in conformity with written information with respect to
such Holder furnished to the Company by or on behalf of such Holder expressly for use in the Shelf
Registration Statement (or any amendment thereto) or such Prospectus (or any amendment or
supplement thereto) or any Issuer Free Writing Prospectus; provided, however, that no such Holder
shall be liable for any claims hereunder in excess of the amount of net proceeds received by such
Holder from the sale of Registrable Securities pursuant to such Shelf Registration Statement.
(c) Each indemnified party shall give notice as promptly as reasonably practicable to each
indemnifying party of any action or proceeding commenced against it in respect of which indemnity
may be sought hereunder, but failure so to notify an indemnifying party shall not relieve such
indemnifying party from any liability hereunder to the extent it is not materially prejudiced as a
result thereof and in any event shall not relieve it from any liability which it may have otherwise
than on account of this indemnity agreement. An indemnifying party may participate at its own
expense in the defense of such action; provided, however, that counsel to the indemnifying party
shall not (except with the consent of the indemnified party) also be counsel to the indemnified
party. In no event shall the indemnifying party or parties be liable for the fees and expenses of
more
than one counsel (in addition to any local counsel) separate from their
- 22 -
own counsel for all
indemnified parties in connection with any one action or separate but similar or related actions in
the same jurisdiction arising out of the same general allegations or circumstances. No indemnifying
party shall, without the prior written consent of the indemnified parties, settle or compromise or
consent to the entry of any judgment with respect to any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever in
respect of which indemnification or contribution could be sought under this Section 4 (whether or
not the indemnified parties are actual or potential parties thereto), unless such settlement,
compromise or consent (i) includes an unconditional release of each indemnified party from all
liability arising out of such litigation, investigation, proceeding or claim 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.
(d) If at any time an indemnified party shall have requested an indemnifying party to
reimburse the indemnified party for fees and expenses of counsel, such indemnifying party agrees
that it shall be liable for any settlement of the nature contemplated by Section 4(a)(ii) 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 such indemnified party in
accordance with such request prior to the date of such settlement.
(e) If the indemnification provided for in this Section 4 is for any reason unavailable to or
insufficient to hold harmless an indemnified party in respect of any losses, liabilities, claims,
damages or expenses referred to therein, then each indemnifying party shall contribute to the
aggregate amount of such losses, liabilities, claims, damages and expenses incurred by such
indemnified party, as incurred, in such proportion as is appropriate to reflect the relative fault
of the Company and the Guarantors on the one hand and the Holders and the Initial Purchasers each
on the other hand in connection with the statements or omissions which resulted in such losses,
liabilities, claims, damages or expenses, as well as any other relevant equitable considerations.
The relative fault of the Company and the Guarantors on the one hand and the Holders and the
Initial Purchasers each 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 relates to information supplied by the Company and the
Guarantors, the Holders or the Initial Purchasers and the parties’ relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or omission.
- 23 -
The Company, the Guarantors, the Holders and the Initial Purchasers agree that it would not be
just and equitable if contribution pursuant to this Section 4 were determined by pro rata
allocation (even if the Initial Purchasers 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
above in this Section 4. The aggregate amount of losses, liabilities, claims, damages and expenses
incurred by an indemnified party and referred to above in this Section 4 shall be deemed to include
any legal or other expenses reasonably incurred by such indemnified party in investigating,
preparing or defending against any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such
untrue or alleged untrue statement or omission or alleged omission.
Notwithstanding the provisions of this Section 4, no Initial Purchaser shall be required to
contribute any amount in excess of the amount by which the total price at which the Securities,
Exchange Securities and Private Exchange Securities sold by it were offered exceeds the amount of
any damages which such Initial Purchaser has otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged omission.
No Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the
0000 Xxx) shall be entitled to contribution from any Person who was not guilty of such fraudulent
misrepresentation.
For purposes of this Section 4, each Person, if any, who controls an Initial Purchaser or
Holder within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall have
the same rights to contribution as such Initial Purchaser or Holder, and each director of the
Company and such Guarantor, as the case may be, and each Person, if any, who controls the Company
and such Guarantor, as the case may be, within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act shall have the same rights to contribution as the Company. The Initial
Purchasers’ respective obligations to contribute pursuant to this Section 4 are several in
proportion to the principal amount of Securities set forth opposite their respective names in
Schedule A to the Purchase Agreement and not joint.
5. Miscellaneous.
5.1 Rule 144A. Each of the Company and the Guarantors hereby agrees with each
Holder, for so long as any Registrable Securities remain outstanding, if the Company is no longer
required to file reports under the 1934 Act, to make available to any Holder or beneficial owner of
Registrable Securities in connection with any sale thereof and any prospective purchaser of such
Registrable Securities from such Holder or beneficial owner, the information required by Rule
144A(d)(4) under the 1933 Act in
- 24 -
order to permit resales of such Registrable Securities pursuant to Rule 144A under the 1933
Act.
5.2 No Inconsistent Agreements. The Company and the Guarantors have not entered into
and the Company and the Guarantors will not after the date of this Agreement enter into any
agreement which is inconsistent with the rights granted to the Holders of Registrable Securities in
this Agreement or otherwise conflicts with the provisions hereof. The rights granted to the
Holders hereunder do not in any way conflict with the rights granted to the holders of the
Company’s and the Guarantor’s other issued and outstanding securities under any such agreements.
5.3 Amendments and Waivers. The provisions of this Agreement, including the
provisions of this sentence, may not be amended, modified or supplemented, and waivers or consents
to departures from the provisions hereof may not be given unless the Company and the Guarantors
have obtained the written consent of Holders of at least a majority in aggregate principal amount
of the outstanding Registrable Securities affected by such amendment, modification, supplement,
waiver or departure.
5.4 Notices. All notices and other communications provided for or permitted hereunder
shall be made in writing by hand delivery, registered first-class mail, telex, telecopier, or any
courier guaranteeing overnight delivery (a) if to a Holder, at the most current address given by
such Holder to the Company and the Guarantors by means of a notice given in accordance with the
provisions of this Section 5.4, which address initially is the address set forth in the Purchase
Agreement with respect to the Initial Purchasers; and (b) if to the Company and the Guarantors,
initially at the Company’s address set forth in the Purchase Agreement, and thereafter at such
other address of which notice is given in accordance with the provisions of this Section 5.4.
All such notices and communications shall be deemed to have been duly given: at the time
delivered by hand, if personally delivered; two business days after being deposited in the mail,
postage prepaid, if mailed; when answered back, if telexed; when receipt is acknowledged, if
telecopied; and on the next business day if timely delivered to an air courier guaranteeing
overnight delivery.
Copies of all such notices, demands, or other communications shall be concurrently delivered
by the person giving the same to the Trustee under the Indenture, at the address specified in such
Indenture.
5.5 Successor and Assigns. This Agreement shall inure to the benefit of and be
binding upon the successors, assigns and transferees of each of the parties, including, without
limitation and without the need for an express assignment, subsequent Holders; provided that
nothing herein shall be deemed to permit any assignment, transfer
- 25 -
or other disposition of Registrable Securities in violation of the terms of the Purchase
Agreement or the Indenture. If any transferee of any Holder shall acquire Registrable Securities,
in any manner, whether by operation of law or otherwise, such Registrable Securities shall be held
subject to all of the terms of this Agreement, and by taking and holding such Registrable
Securities such person shall be conclusively deemed to have agreed to be bound by and to perform
all of the terms and provisions of this Agreement, including the restrictions on resale set forth
in this Agreement and, if applicable, the Purchase Agreement, and such person shall be entitled to
receive the benefits hereof.
5.6 Third Party Beneficiaries. The Initial Purchasers (even if the Initial Purchasers
are not Holders of Registrable Securities) shall be third party beneficiaries to the agreements
made hereunder between the Company and the Guarantors, on the one hand, and the Holders, on the
other hand, and shall have the right to enforce such agreements directly to the extent they deem
such enforcement necessary or advisable to protect their rights or the rights of Holders hereunder.
Each Holder of Registrable Securities shall be a third party beneficiary to the agreements made
under this Registration Rights Agreement between the Company and the Guarantors, on the one hand,
and the Initial Purchasers, on the other hand, and shall have the right to enforce such agreements
directly to the extent it deems such enforcement necessary or advisable to protect its rights
hereunder.
5.7. Specific Enforcement. Without limiting the remedies available to the Initial
Purchasers and the Holders, the Company and the Guarantors acknowledge that any failure by the
Company and the Guarantors to comply with their obligations under Sections 2.1 through 2.4 hereof
may result in material irreparable injury to the Initial Purchasers or the Holders for which there
is no adequate remedy at law, that it would not be possible to measure damages for such injuries
precisely and that, in the event of any such failure, the Initial Purchasers or any Holder may
obtain such relief as may be required to specifically enforce the Company’s and the Guarantor’s
obligations under Sections 2.1 through 2.4 hereof.
5.8. Restriction on Resales. Until the expiration of one year after the original
issuance of the Securities and the Guarantees, the Company and the Guarantors will not, and to the
extent it has an ability to do so, will cause their “affiliates” (as such term is defined in
Rule 144(a)(1) under the 0000 Xxx) not to, resell any Securities and Guarantees which are
“restricted securities” (as such term is defined under Rule 144(a)(3) under the 0000 Xxx) that have
been reacquired by any of them.
5.9 Counterparts. This Agreement may be executed in any number of counterparts and by
the parties hereto in separate counterparts, each of which when so executed shall be deemed to be
an original and all of which taken together shall constitute one and the same agreement.
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5.10 Headings. The headings in this Agreement are for convenience of reference only
and shall not limit or otherwise affect the meaning hereof.
5.11 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAW OF THE STATE OF NEW YORK WITHOUT REGARD TO THE PRINCIPLES OF CONFLICT OF LAWS THEREOF.
5.12 Severability. In the event that any one or more of the provisions contained
herein, or the application thereof in any circumstance, is held invalid, illegal or unenforceable,
the validity, legality and enforceability of any such provision in every other respect and of the
remaining provisions contained herein shall not be affected or impaired thereby.
- 27 -
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written
above.
SONIC AUTOMOTIVE, INC. |
||||
By: | /s/ Xxxxxxx X. Xxxx | |||
Name: Xxxxxxx X. Xxxx, Esq. | ||||
Title: Senior Vice President, General Counsel and Secretary |
||||
The Guarantors: | ||
ADI OF THE SOUTHEAST LLC (a South Carolina limited liability company) |
||
ANTREV, LLC (a North Carolina limited liability company) | ||
ARNGAR, INC. (a North Carolina corporation) | ||
AUTOBAHN, INC. (a California corporation) | ||
AVALON FORD, INC. (a Delaware corporation) | ||
CASA FORD OF HOUSTON, INC. (a Texas corporation) | ||
CORNERSTONE ACCEPTANCE CORPORATION (a Florida corporation) | ||
FAA AUTO FACTORY, INC. (a California corporation) | ||
FAA XXXXXXX HILLS, INC. (a California corporation) | ||
FAA CAPITOL F, INC. (a California corporation) | ||
FAA CAPITOL N, INC. (a California corporation) | ||
FAA CONCORD H, INC. (a California corporation) | ||
FAA CONCORD N, INC. (a California corporation) | ||
FAA CONCORD T, INC. (a California corporation) | ||
FAA DUBLIN N, INC. (a California corporation) | ||
FAA DUBLIN VWD, INC. (a California corporation) | ||
FAA HOLDING CORP. (a California corporation) | ||
FAA LAS VEGAS H, INC. (a Nevada corporation) | ||
FAA MARIN F, INC. (a California corporation) | ||
FAA XXXXX XX, INC. (a California corporation) | ||
FAA POWAY G, INC. (a California corporation) | ||
FAA POWAY H, INC. (a California corporation) | ||
FAA POWAY T, INC. (a California corporation) | ||
FAA SAN BRUNO, INC. (a California corporation) | ||
FAA SANTA XXXXXX V, INC. (a California corporation) | ||
FAA SERRAMONTE, INC. (a California corporation) | ||
FAA SERRAMONTE H, INC. (a California corporation) | ||
FAA SERRAMONTE L, INC. (a California corporation) | ||
FAA STEVENS CREEK, INC. (a California corporation) | ||
FAA TORRANCE CPJ, INC. (a California corporation) |
-28-
FIRSTAMERICA AUTOMOTIVE, INC. (a Delaware corporation) | ||
FORT MILL FORD, INC. (a South Carolina corporation) | ||
FORT XXXXX COLLISION CENTER, LLC (a Florida limited liability company) |
||
FRANCISCAN MOTORS, INC. (a California corporation) | ||
XXXXX XXXXX AUTOPLEX, INC. (a Texas corporation) | ||
FRONTIER OLDSMOBILE – CADILLAC, INC. (a North Carolina corporation) | ||
HMC FINANCE ALABAMA, INC. (an Alabama corporation) | ||
XXXXXX MOTORS INCORPORATED (a California corporation) | ||
L DEALERSHIP GROUP, INC. (a Texas corporation) | ||
XXXXXX XXXXX CORPORATION (a North Carolina corporation) | ||
XXXXXX CADILLAC, INC. (a Tennessee corporation) | ||
XXXXXX CADILLAC, INC. (a Texas corporation) | ||
MOUNTAIN STATES MOTORS CO., INC. (a Colorado corporation) | ||
ROYAL MOTOR COMPANY, INC. (an Alabama corporation) | ||
SAI AL HC1, INC. (an Alabama corporation) | ||
SAI AL HC2, INC. (an Alabama corporation), on behalf of itself and as sole member of: | ||
SAI IRONDALE L, LLC (an Alabama limited liability company) | ||
SAI XXX ARBOR IMPORTS, LLC (a Michigan limited liability company) |
||
SAI ATLANTA B, LLC (a Georgia limited liability company) | ||
SAI BROKEN ARROW C, LLC (an Oklahoma limited liability company) |
||
SAI CHARLOTTE M, LLC (a North Carolina limited liability company) |
||
SAI COLUMBUS MOTORS, LLC (an Ohio limited liability company) |
||
SAI COLUMBUS VWK, LLC (an Ohio limited liability company) | ||
SAI FL HC1, INC. (a Florida corporation) | ||
SAI FL HC2, INC. (a Florida corporation), on behalf of itself and as sole member of: | ||
SAI CLEARWATER T, LLC (a Florida limited liability company) | ||
SAI FL HC3, INC. (a Florida corporation) | ||
SAI FL HC4, INC. (a Florida corporation) | ||
SAI FL HC5, INC. (a Florida corporation) | ||
SAI FL HC6, INC. (a Florida corporation) | ||
SAI FL HC7, INC. (a Florida corporation) | ||
SAI FORT XXXXX B, LLC (a Florida limited liability company) |
-00-
XXX XXXX XXXXX H, LLC (a Florida limited liability company) | ||
SAI FORT XXXXX M, LLC (a Florida limited liability company) | ||
SAI FORT XXXXX VW, LLC (a Florida limited liability company) |
||
SAI IRONDALE IMPORTS, LLC (an Alabama limited liability company) |
||
SAI LANSING CH, LLC (a Michigan limited liability company) | ||
SAI LONG BEACH B, INC. (a California corporation) | ||
SAI MD HC1, INC. (a Maryland corporation), on behalf of itself and as sole member of: | ||
SAI ROCKVILLE L, LLC (a Maryland limited liability company) | ||
SAI MONROVIA B, INC. (a California corporation) | ||
XXX XXXXXXXXXX B, LLC (an Alabama limited liability company) |
||
XXX XXXXXXXXXX BCH, LLC (an Alabama limited liability company) |
||
XXX XXXXXXXXXX CH, LLC (an Alabama limited liability company) |
||
SAI NASHVILLE CSH, LLC (a Tennessee limited liability company) |
||
SAI NASHVILLE H, LLC (a Tennessee limited liability company) |
||
SAI NASHVILLE M, LLC (a Tennessee limited liability company) |
||
SAI NASHVILLE MOTORS, LLC (a Tennessee limited liability company) |
||
SAI NC HC2, INC. (a North Carolina corporation) | ||
SAI OH HC1, INC. (an Ohio corporation) | ||
SAI OK HC1, INC. (an Oklahoma corporation), on behalf of itself and as sole member of the following entities: | ||
SAI OKLAHOMA CITY T, LLC (an Oklahoma limited liability company) | ||
SAI TULSA T, LLC (an Oklahoma limited liability company) | ||
SAI OKLAHOMA CITY C, LLC (an Oklahoma limited liability company) |
||
SAI OKLAHOMA CITY H, LLC (an Oklahoma limited liability company) |
||
SAI ORLANDO CS, LLC (a Florida limited liability company) | ||
SAI PEACHTREE, LLC (a Georgia limited liability company) | ||
SAI PLYMOUTH C, LLC (a Michigan limited liability company) | ||
SAI RIVERSIDE C, LLC (an Oklahoma limited liability company) |
-30-
SAI ROCKVILLE IMPORTS, LLC (a Maryland limited liability company) |
||
SAI TN HC1, LLC (a Tennessee limited liability company) | ||
SAI TN HC2, LLC (a Tennessee limited liability company) | ||
SAI TN HC3, LLC (a Tennessee limited liability company) | ||
SAI TULSA N, LLC (an Oklahoma limited liability company) | ||
SAI VA HC1, INC. (a Virginia corporation) | ||
SANTA XXXXX IMPORTED CARS, INC. (a California corporation) | ||
SONIC AGENCY, INC. (a Michigan corporation) | ||
SONIC AUTOMOTIVE F&I, LLC (a Nevada limited liability company) |
||
SONIC AUTOMOTIVE OF CHATTANOOGA, LLC (a Tennessee limited liability company) |
||
SONIC AUTOMOTIVE OF NASHVILLE, LLC (a Tennessee limited liability company) |
||
SONIC AUTOMOTIVE OF NEVADA, INC. (a Nevada corporation), on behalf of itself and as sole member of: | ||
SAI
GEORGIA, LLC (a Georgia limited liability company), on behalf of itself and as general partner of the following entities: |
||
SAI
GA HC1, LP (a Georgia limited partnership), on behalf of itself and as sole member of: |
||
XXX XXXXX MOUNTAIN T, LLC (a Georgia limited liability company) |
||
SONIC PEACHTREE INDUSTRIAL BLVD., L.P. (a
Georgia limited partnership) |
||
SONIC – STONE MOUNTAIN T, L.P. (a Georgia limited partnership) | ||
SRE GEORGIA – 1, L.P. (a Georgia limited partnership) | ||
SRE GEORGIA – 2, L.P. (a Georgia limited partnership) | ||
SRE GEORGIA – 3, L.P. (a Georgia limited partnership) | ||
SONIC AUTOMOTIVE SUPPORT, LLC (a Nevada limited liability company) |
||
SONIC AUTOMOTIVE WEST, LLC (a Nevada limited liability company) |
||
SONIC AUTOMOTIVE – 1495 AUTOMALL DRIVE, COLUMBUS, INC. (an Ohio corporation) | ||
SONIC AUTOMOTIVE – 0000 XXXXX XXX., DB, INC. (a Florida corporation) | ||
SONIC AUTOMOTIVE – 0000 XXXXX XXX., DB, LLC (a Florida limited liability company) | ||
SONIC AUTOMOTIVE 2424 LAURENS RD., GREENVILLE, INC. (a South Carolina corporation) | ||
SONIC AUTOMOTIVE – 2490 SOUTH XXX HIGHWAY, LLC (a Tennessee limited liability company) |
-31-
SONIC AUTOMOTIVE 2752 LAURENS RD., GREENVILLE, INC. (a South Carolina corporation) | ||
SONIC AUTOMOTIVE – 3700 WEST BROAD STREET, COLUMBUS, INC. (an Ohio corporation) | ||
SONIC AUTOMOTIVE – 4000 WEST BROAD STREET, COLUMBUS, INC. (an Ohio corporation) | ||
SONIC AUTOMOTIVE 0000 XXXXXXXXX XXXXXXXXXX XXXX., LLC (a Georgia limited liability company) | ||
SONIC AUTOMOTIVE – 0000 X. XXXX XXXXX, XX, INC. (a Florida corporation) | ||
SONIC AUTOMOTIVE – 0000 X. XXXXXXXXXXXX, XX, LLC (a North Carolina limited liability company) | ||
SONIC 0000 XXXXXXX XX., XXXXXXXXXXX, LLC (a Tennessee limited liability company) | ||
SONIC – BUENA PARK H, INC. (a California corporation) | ||
SONIC – CALABASAS A, INC. (a California corporation) | ||
SONIC CALABASAS M, INC. (a California corporation) | ||
SONIC – CALABASAS V, INC. (a California corporation) | ||
SONIC – CAPITOL CADILLAC, INC. (a Michigan corporation) | ||
SONIC – CAPITOL IMPORTS, INC. (a South Carolina corporation) | ||
SONIC – XXXXXX F, INC. (a California corporation) | ||
SONIC – XXXXXX XX, INC. (a California corporation) | ||
SONIC – CHATTANOOGA D EAST, LLC (a Tennessee limited liability company) | ||
SONIC COAST CADILLAC, INC. (a California corporation) | ||
SONIC – DENVER T, INC. (a Colorado corporation) | ||
SONIC – DENVER VOLKSWAGEN, INC. (a Colorado corporation) | ||
SONIC DEVELOPMENT, LLC (a North Carolina limited liability company) |
||
SONIC DIVISIONAL OPERATIONS, LLC (a Nevada limited liability company) |
||
SONIC – DOWNEY CADILLAC, INC. (a California corporation) | ||
SONIC – ENGLEWOOD M, INC. (a Colorado corporation) | ||
SONIC ESTORE, INC. (a North Carolina corporation) | ||
SONIC – FORT MILL CHRYSLER JEEP, INC. (a South Carolina corporation) | ||
SONIC – FORT MILL DODGE, INC. (a South Carolina corporation) | ||
SONIC FREMONT, INC. (a California corporation) | ||
SONIC – HARBOR CITY H, INC. (a California corporation) | ||
SONIC – INTEGRITY DODGE LV, LLC (a Nevada limited liability company) | ||
SONIC – LS, LLC (a Delaware limited liability company), on behalf of itself and as general partner of: | ||
SONIC – LS CHEVROLET, L.P. (a Texas limited partnership) |
-32-
SONIC – LAKE XXXXXX CHRYSLER JEEP, LLC (a North Carolina limited liability company) | ||
SONIC – LAS VEGAS C EAST, LLC (a Nevada limited liability company) | ||
SONIC – LAS VEGAS C WEST, LLC (a Nevada limited liability company) | ||
SONIC – XXXXX NISSAN, INC. (a Florida corporation) | ||
SONIC – XXXXX PONTIAC – CADILLAC, INC. (a Florida corporation) | ||
SONIC – LONE TREE CADILLAC, INC. (a Colorado corporation) | ||
SONIC – MANHATTAN FAIRFAX, INC. (a Virginia corporation) | ||
SONIC – XXXXXX CHEVROLET, INC. (a California corporation) | ||
SONIC – XXXXXX PONTIAC BUICK GMC, INC. (a Colorado corporation) | ||
SONIC – XXXXXXX CHEVROLET WORLD, INC. (a South Carolina corporation) | ||
SONIC – XXXXXXX OF XXXXXXXX, INC. (a South Carolina corporation) | ||
SONIC – NORTH CHARLESTON, INC. (a South Carolina corporation) | ||
SONIC – NORTH CHARLESTON DODGE, INC. (a South Carolina corporation) | ||
SONIC OF TEXAS, INC. (a Texas corporation), on behalf of itself and as general partner of the following entities: | ||
XXXXXXXX MOTORS, LTD. (a Texas limited partnership) | ||
SONIC ADVANTAGE PA, LP (a Texas limited partnership) | ||
SONIC AUTOMOTIVE OF TEXAS, L.P. (a Texas limited partnership) | ||
SONIC
AUTOMOTIVE – 0000 X. XXXX, XX, L.P. (a Texas limited partnership) |
||
SONIC
AUTOMOTIVE – 0000 X-00 XXXX, XX, L.P. (a Texas limited partnership) |
||
SONIC
AUTOMOTIVE – 0000 X-00 XXXX, XX, L.P. (a Texas limited partnership) |
||
SONIC – CADILLAC D, L.P. (a Texas limited partnership) | ||
SONIC – CAMP FORD, L.P. (a Texas limited partnership) | ||
SONIC – CARROLLTON V, L.P. (a Texas limited partnership) | ||
SONIC – CLEAR LAKE N, L.P. (a Texas limited partnership) | ||
SONIC
– CLEAR LAKE VOLKSWAGEN, L.P. (a Texas limited partnership) |
-33-
SONIC – FORT WORTH T, L.P. (a Texas limited partnership) | ||
SONIC – XXXXX XXXXX AUTOPLEX, L.P. (a Texas limited partnership) | ||
SONIC HOUSTON JLR, LP (a Texas limited partnership) | ||
SONIC XXXXXXX XX, LP (a Texas limited partnership) | ||
SONIC – HOUSTON V, L.P. (a Texas limited partnership) | ||
SONIC
– JERSEY VILLAGE VOLKSWAGEN, L.P. (a Texas limited partnership) |
||
SONIC – XXXX XXXXX, L. P. (a Texas limited partnership) | ||
SONIC – XXXXXX CADILLAC, L.P. (a Texas limited partnership) | ||
SONIC – MESQUITE HYUNDAI, L.P. (a Texas limited partnership) | ||
SONIC MOMENTUM B, L.P. (a Texas limited partnership) | ||
SONIC MOMENTUM JVP, L.P. (a Texas limited partnership) | ||
SONIC MOMENTUM VWA, L.P. (a Texas limited partnership) | ||
SONIC – READING, L.P. (a Texas limited partnership) | ||
SONIC – XXXXXXXXXX F, L.P. (a Texas limited partnership) | ||
SONIC – XXX XXXXX NISSAN, L.P. (a Texas limited partnership) | ||
SONIC – UNIVERSITY PARK A, L.P. (a Texas limited partnership) | ||
SRE TEXAS – 1, L.P. (a Texas limited partnership) | ||
SRE TEXAS – 2, L.P. (a Texas limited partnership) | ||
SRE TEXAS – 3, L.P. (a Texas limited partnership) | ||
SRE TEXAS – 4, L.P. (a Texas limited partnership) | ||
SRE TEXAS – 5, L.P. (a Texas limited partnership) | ||
SRE TEXAS – 6, L.P. (a Texas limited partnership) | ||
SRE TEXAS – 7, L.P. (a Texas limited partnership) | ||
SRE TEXAS – 8, L.P. (a Texas limited partnership) | ||
SONIC OKEMOS IMPORTS, INC. (a Michigan corporation) | ||
SONIC – PLYMOUTH CADILLAC, INC. (a Michigan corporation) | ||
SONIC RESOURCES, INC. (a Nevada corporation) | ||
SONIC – RIVERSIDE AUTO FACTORY, INC. (an Oklahoma corporation) | ||
SONIC – XXXXXXX CADILLAC, INC. (a Florida corporation) | ||
SONIC SANTA XXXXXX M, INC. (a California corporation) | ||
SONIC SANTA XXXXXX S, INC. (a California corporation) |
-34-
SONIC – SATURN OF SILICON VALLEY, INC. (a California corporation) | ||
SONIC SERRAMONTE I, INC. (a California corporation) | ||
SONIC – XXXXXXXXXXX, INC. (a Florida corporation) | ||
SONIC – SOUTH CADILLAC, INC. (a Florida corporation) | ||
SONIC – STEVENS CREEK B, INC. (a California corporation) | ||
SONIC TYSONS CORNER H, INC. (a Virginia corporation) | ||
SONIC TYSONS CORNER INFINITI, INC. (a Virginia corporation) | ||
SONIC – VOLVO LV, LLC (a Nevada limited liability company) | ||
SONIC WALNUT CREEK M, INC. (a California corporation) | ||
SONIC – WEST COVINA T, INC. (a California corporation) | ||
SONIC – XXXXXXXX CADILLAC, INC. (an Alabama corporation) | ||
SONIC WILSHIRE CADILLAC, INC. (a California corporation) | ||
SRE ALABAMA – 2, LLC (an Alabama limited liability company) | ||
SRE ALABAMA – 3, LLC (an Alabama limited liability company) | ||
SRE ALABAMA – 4, LLC (an Alabama limited liability company) | ||
SRE ALABAMA – 5, LLC (an Alabama limited liability company) | ||
SREALESTATE ARIZONA – 1, LLC (an Arizona limited liability company) | ||
SREALESTATE ARIZONA – 2, LLC (an Arizona limited liability company) | ||
SREALESTATE ARIZONA – 3, LLC (an Arizona limited liability company) | ||
SREALESTATE ARIZONA – 4, LLC (an Arizona limited liability company) | ||
SREALESTATE ARIZONA – 5, LLC (an Arizona limited liability company) | ||
SREALESTATE ARIZONA – 6, LLC (an Arizona limited liability company) | ||
SREALESTATE ARIZONA – 7, LLC (an Arizona limited liability company) | ||
SRE CALIFORNIA – 1, LLC (a California limited liability company) | ||
SRE CALIFORNIA – 2, LLC (a California limited liability company) | ||
SRE CALIFORNIA – 3, LLC (a California limited liability company) | ||
SRE CALIFORNIA – 4, LLC (a California limited liability company) | ||
SRE CALIFORNIA – 5, LLC (a California limited liability company) |
-35-
SRE CALIFORNIA – 6, LLC (a California limited liability company) | ||
SRE COLORADO – 1, LLC (a Colorado limited liability company) | ||
SRE COLORADO – 2, LLC (a Colorado limited liability company) | ||
SRE COLORADO – 3, LLC (a Colorado limited liability company) | ||
SRE FLORIDA – 1, LLC (a Florida limited liability company) | ||
SRE FLORIDA – 2, LLC (a Florida limited liability company) | ||
SRE FLORIDA – 3, LLC (a Florida limited liability company) | ||
SRE HOLDING, LLC (a North Carolina limited liability company) |
||
SRE MARYLAND – 1, LLC (a Maryland limited liability company) | ||
SRE MARYLAND – 2, LLC (a Maryland limited liability company) | ||
SRE MICHIGAN – 3, LLC (a Michigan limited liability company) | ||
SRE NEVADA – 1, LLC (a Nevada limited liability company) | ||
SRE NEVADA – 2, LLC (a Nevada limited liability company) | ||
SRE NEVADA – 3, LLC (a Nevada limited liability company) | ||
SRE NEVADA – 4, LLC (a Nevada limited liability company) | ||
SRE NEVADA – 5, LLC (a Nevada limited liability company) | ||
SRE NORTH CAROLINA – 1, LLC (a North Carolina limited liability company) | ||
SRE NORTH CAROLINA – 2, LLC (a North Carolina limited liability company) | ||
SRE NORTH CAROLINA – 3, LLC (a North Carolina limited liability company) | ||
SRE OKLAHOMA – 1, LLC (an Oklahoma limited liability company) | ||
SRE OKLAHOMA – 2, LLC (an Oklahoma limited liability company) | ||
SRE OKLAHOMA – 3, LLC (an Oklahoma limited liability company) | ||
SRE OKLAHOMA – 4, LLC (an Oklahoma limited liability company) | ||
SRE OKLAHOMA – 5, LLC (an Oklahoma limited liability company) | ||
SRE SOUTH CAROLINA – 2, LLC (a South Carolina limited liability company) | ||
SRE SOUTH CAROLINA – 3, LLC (a South Carolina limited liability company) | ||
SRE SOUTH CAROLINA – 4, LLC (a South Carolina limited liability company) | ||
SRE TENNESSEE – 1, LLC (a Tennessee limited liability company) | ||
SRE TENNESSEE – 2, LLC (a Tennessee limited liability company) |
-36-
SRE TENNESSEE – 3, LLC (a Tennessee limited liability company) | ||
SRE TENNESSEE – 4, LLC (a Tennessee limited liability company) | ||
SRE TENNESSEE – 5, LLC (a Tennessee limited liability company) | ||
SRE TENNESSEE – 6, LLC (a Tennessee limited liability company) | ||
SRE TENNESSEE – 7, LLC (a Tennessee limited liability company) | ||
SRE TENNESSEE – 8, LLC (a Tennessee limited liability company) | ||
SRE TENNESSEE – 9, LLC (a Tennessee limited liability company) | ||
SRE VIRGINIA – 1, LLC (a Virginia limited liability company) | ||
SRE VIRGINIA – 2, LLC (a Virginia limited liability company) | ||
STEVENS CREEK CADILLAC, INC. (a California corporation) | ||
TOWN AND COUNTRY FORD, INCORPORATED (a North Carolina corporation) |
||
VILLAGE IMPORTED CARS, INC. (a Maryland corporation) | ||
WINDWARD, INC. (a Hawaii corporation) | ||
Z MANAGEMENT, INC. (a Colorado corporation) |
By: | /s/ Xxxxxxx X. Xxxx | |||
Name: Xxxxxxx X. Xxxx, Esq. | ||||
Title: Secretary | ||||
Sonic Automotive, Inc., as sole member of the following entities: | ||
ONTARIO L, LLC (a California limited liability company) | ||
SAI COLUMBUS T, LLC (an Ohio limited liability company) |
By: | /s/ Xxxxxxx X. Xxxx | |||
Name: Xxxxxxx X. Xxxx, Esq. | ||||
Title: Senior Vice President, General Counsel and Secretary |
-37-
Confirmed and accepted as
of the date first above
written:
of the date first above
written:
BANC OF AMERICA SECURITIES LLC
Acting on behalf of itself
and as the Representative of
the several Initial Purchasers
Acting on behalf of itself
and as the Representative of
the several Initial Purchasers
BY: BANC OF AMERICA SECURITIES LLC
By: | /s/ Xxxxxxx Xxxxxx | |||
Name: | Xxxxxxx Xxxxxx | |||
Title: | Managing Director | |||
-38-