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EXHIBIT 4.1
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Group 1 Automotive, Inc.,
as Issuer
and
The Subsidiary Guarantors named herein,
as Subsidiary Guarantors
TO
IBJ Whitehall Bank & Trust Company
Trustee
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FIRST SUPPLEMENTAL
INDENTURE
Dated as of March 5, 1999
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THIS FIRST SUPPLEMENTAL INDENTURE, dated as of March 5, 1999, among
Group 1 Automotive, Inc., a corporation duly organized and existing under the
laws of the State of Delaware (the "Company"), each of the Subsidiary Guarantors
named herein and IBJ Whitehall Bank & Trust Company, a New York Banking
Corporation, as trustee (the "Trustee"), to the INDENTURE, dated as of March 5,
1999, among the Company, each of the Subsidiary Guarantors named therein and the
Trustee (the "Original Indenture", the Original Indenture, as supplemented
hereby, being referred to herein as the "Indenture"),
W I T N E S S E T H :
WHEREAS, the Company has duly authorized, as a series of Securities
under the Indenture, its 10 7/8% Senior Subordinated Notes due March 1, 2009
(the "Notes");
WHEREAS, the Company and the Subsidiary Guarantors have duly authorized
the execution and delivery of this Supplemental Indenture to establish the Notes
as a series of Securities under the Original Indenture and to provide for, among
other things, the issuance of and the form and terms of the Notes and additional
covenants and Events of Default for purposes of the Notes and the Holders
thereof;
WHEREAS, all things necessary to make this Supplemental Indenture a
valid agreement according to its terms have been done; and
WHEREAS, the foregoing recitals are made as statements of fact by the
Company and the Subsidiary Guarantors and not by the Trustee;
NOW, THEREFORE, THIS SUPPLEMENTAL INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Notes
by the Holders thereof, it is mutually agreed, for the equal and proportionate
benefit of all Holders of the Notes, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 101. DEFINITIONS
For all purposes of this First Supplemental Indenture and the Notes,
except as otherwise expressly provided or unless the subject matter or context
otherwise requires:
"Affiliate" of any Person means any other Person directly or indirectly
controlling or controlled by or under direct or indirect common control with
such Person. For the purposes of this definition, "control" when used with
respect to any Person means the power to direct the management and policies of
such Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to
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the foregoing; provided that direct or indirect beneficial ownership of 10% or
more of the Voting Stock of a Person shall be deemed to control.
"Asset Disposition" by any Person means any transfer, conveyance, sale,
lease or other disposition (but excluding the creation of any Lien) by such
Person or any of its Restricted Subsidiaries (including a consolidation or
merger or other sale of any such Restricted Subsidiary with, into or to another
Person in a transaction in which such Restricted Subsidiary ceases to be a
Restricted Subsidiary, but excluding a disposition by a Restricted Subsidiary of
such Person to such Person or a Wholly Owned Restricted Subsidiary of such
Person or by such Person to a Wholly Owned Restricted Subsidiary of such Person)
of:
(1) shares of Capital Stock (other than directors' qualifying
shares) or other ownership interests of a Restricted
Subsidiary of such Person,
(2) substantially all of the assets of such Person or any of its
Restricted Subsidiaries representing a division or line of
business or
(3) other assets or rights of such Person or any of its Restricted
Subsidiaries outside of the ordinary course of business,
provided in each case that the aggregate consideration for
such transfer, conveyance, sale, lease or other disposition is
equal to $1 million or more.
Notwithstanding the foregoing, the term "Asset Disposition" shall not
include:
(1) a Restricted Payment that is made in compliance with Section
302 hereof,
(2) the designation of any Restricted Subsidiary as an
Unrestricted Subsidiary or the contribution to the capital of
any Unrestricted Subsidiary, in either case in compliance with
the applicable provisions of the Indenture or
(3) any transaction subject to and consummated in compliance with
Section 312 hereof.
"Average Life" means, as of any date of determination, with respect to
any Debt, the quotient obtained by dividing (1) the sum of the products of the
number of years from such date of determination to the dates of each successive
scheduled principal payments of such Debt by (2) the sum of all such principal
payments.
"Capital Lease Obligation" of any Person means the obligation to pay
rent or other payment amounts under a lease of (or other Debt arrangements
conveying the right to use) real or personal property of such Person which is
required to be classified and accounted for as a capital lease or a liability on
the face of a balance sheet of such Person in accordance with generally accepted
accounting principles. The stated maturity of such obligation shall be the date
of the last payment of rent or any other amount due under such lease prior to
the first date upon which such lease may be terminated by the lessee without
payment of a penalty. The principal amount of such obligation shall be the
capitalized amount thereof that would appear on the face of a balance sheet of
such Person in accordance with generally accepted accounting principles.
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"Capital Stock" of any Person means any and all shares, interests,
participations or other equivalents (however designated) of corporate stock or
other equity participations, including partnership interests, whether general or
limited, of such Person.
"Cash Equivalents" means:
(1) securities issued or directly and fully guaranteed or insured
by the United States government or any agency or
instrumentality thereof having maturities of not more than six
months from the date of acquisition,
(2) certificates of deposit and Eurodollar time deposits with
maturities of six months or less from the date of acquisition,
bankers' acceptances with maturities not exceeding six months
and overnight bank deposits, in each case with any lender
party to the Senior Credit Facility or with any domestic
commercial bank having capital and surplus in excess of $500
million and a Xxxxxxxx Bank Watch Rating of "B" or better,
(3) repurchase obligations with a term of not more than seven days
for underlying securities of the types described in clauses
(1) and (2) above entered into with any financial institution
meeting the qualifications specified in clause (2) above,
(4) commercial paper having a rating of at least P-1 from Xxxxx'x
Investors Service, Inc. (or its successors) and a rating of at
least A-1 from Standard & Poor's Ratings Group (or its
successors),
(5) deposits available for withdrawal on demand with any
commercial bank not meeting the qualifications specified in
clause (2) above, provided all such deposits do not exceed $5
million in the aggregate at any one time and
(6) investments in money market or other mutual funds
substantially all of whose assets comprise securities of the
types described in clauses (1) through (4) above.
A "Change of Control" will be deemed to have occurred at such time as
either:
(1) any Person (other than a Permitted Holder) or any Person
(other than Permitted Holders) acting together that would
constitute a "group" (a "Group") for purposes of Section 13(d)
of the Exchange Act, or any successor provision thereto, shall
beneficially own (within the meaning of Rule 13d-3 under the
Exchange Act, or any successor provision thereto) at least 50%
of the aggregate voting power of all classes of Voting Stock
of the Company; or
(2) any Person (other than a Permitted Holder) or Group (other
than Permitted Holders) shall succeed in having a sufficient
number of its nominees elected to the Board of Directors of
the Company such that such nominees, when added to any
existing director remaining on the Board of Directors of the
Company after such election who was a nominee of or is an
Affiliate of such Person or Group, will constitute a majority
of the Board of Directors of the Company;
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provided, that a transaction effected to create a holding company of the
Company, (i) pursuant to which the Company becomes a Wholly Owned Subsidiary of
such holding company, and (ii) as a result of which the holders of Capital Stock
of such holding company are substantially the same as the holders of Capital
Stock of the Company immediately prior to such transaction, shall not be deemed
to involve a "Change of Control"; provided further that following such a holding
company transaction, references in this definition of "Change of Control" shall
thereafter be treated as references to such holding company.
"Closing Date" means March 5, 1999.
"Common Stock" of any Person means Capital Stock of such Person that
does not rank prior, as to the payment of dividends or as to the distribution of
assets upon any voluntary or involuntary liquidation, dissolution or winding up
of such Person, to shares of Capital Stock of any other class of such Person.
"Consolidated Cash Flow Available for Fixed Charges" for any period
means the Consolidated Net Income for such period increased by the sum of:
(1) Consolidated Interest Expense for such period, plus
(2) Consolidated Income Tax Expense for such period, plus
(3) the consolidated depreciation and amortization expense
included in the income statement of the Company and its
Restricted Subsidiaries for such period, plus
(4) other non-cash expenses (excluding any such non-cash expense
to the extent that it represents an accrual of or reserve for
cash expenses in any future period or amortization of a
prepaid cash expense that was paid in a prior period) included
in the income statement of the Company and its Restricted
Subsidiaries for such period; minus
(5) non-cash items increasing Consolidated Net Income for such
period, other than items that were accrued in the ordinary
course of business, in each case, on a consolidated basis and
determined in accordance with generally accepted accounting
principles;
provided, however, that there shall be excluded therefrom the Consolidated Cash
Flow Available for Fixed Charges (if positive) of any Restricted Subsidiary that
is not a Subsidiary Guarantor (calculated separately for such Restricted
Subsidiary in the same manner as provided above for the Company) that is subject
to a restriction which prevents the payment of dividends or the making of
distributions to the Company or another Restricted Subsidiary to the extent of
such restriction.
"Consolidated Cash Flow Coverage Ratio" as of any date of determination
means the ratio of:
(1) Consolidated Cash Flow Available for Fixed Charges for the
period of the most recently completed four consecutive fiscal
quarters for which quarterly or annual financial statements
are available to
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(2) Consolidated Fixed Charges for such period;
provided, however, that Consolidated Fixed Charges shall be adjusted to give
effect on a pro forma basis to any Debt that has been Incurred by the Company or
any Restricted Subsidiary since the end of such period that remains outstanding
and to any Debt that is proposed to be Incurred by the Company or any Restricted
Subsidiary as if in each case such Debt had been Incurred on the first day of
such period and as if any Debt that is or will no longer be outstanding as the
result of the Incurrence of any such Debt had not been outstanding as of the
first day of such period; provided, however, that in making such computation,
the Consolidated Interest Expense attributable to interest on any proposed Debt
bearing a floating interest rate shall be computed on a pro forma basis as if
the rate in effect on the date of computation had been the applicable rate for
the entire period; and provided further that, in the event the Company or any of
its Restricted Subsidiaries has made Asset Dispositions or acquisitions of
assets not in the ordinary course of business (including acquisitions of other
Persons by merger, consolidation or purchase of Capital Stock) during or after
such period, such computation shall be made on a pro forma basis as if the Asset
Dispositions or acquisitions had taken place on the first day of such period.
"Consolidated Fixed Charges" for any period means the sum of:
(1) Consolidated Interest Expense and
(2) the consolidated amount of interest capitalized by the Company
and its Restricted Subsidiaries during such period calculated
in accordance with generally accepted accounting principles.
"Consolidated Income Tax Expense" for any period means the consolidated
provision for income taxes of the Company and its Restricted Subsidiaries for
such period calculated on a consolidated basis in accordance with generally
accepted accounting principles.
"Consolidated Interest Expense" means for any period the consolidated
interest expense, other than floor plan interest expense, included in a
consolidated income statement (without deduction of interest income) of the
Company and its Restricted Subsidiaries for such period calculated on a
consolidated basis in accordance with generally accepted accounting principles,
including without limitation or duplication (or, to the extent not so included,
with the addition of):
(1) the amortization of Debt discounts;
(2) any payments or fees with respect to letters of credit,
bankers' acceptances or similar facilities;
(3) net fees with respect to interest rate swap or similar
agreements or foreign currency hedge, exchange or similar
agreements;
(4) Preferred Stock dividends of the Company and its Restricted
Subsidiaries (other than with respect to Redeemable Stock)
declared and paid or payable;
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(5) accrued Redeemable Stock dividends of the Company and its
Restricted Subsidiaries, whether or not declared or paid;
(6) interest on Debt guaranteed by the Company and its Restricted
Subsidiaries; and
(7) the portion of any rental obligation allocable to interest
expense.
"Consolidated Net Income" for any period means the consolidated net
income (or loss) of the Company and its Restricted Subsidiaries for such period
determined on a consolidated basis in accordance with generally accepted
accounting principles; provided that there shall be excluded therefrom:
(1) the net income (or loss) of any Person acquired by the Company
or a Restricted Subsidiary in a pooling-of-interests
transaction for any period prior to the date of such
transaction,
(2) the net income (or loss) of any Person that is not a
Restricted Subsidiary except to the extent of the amount of
dividends or other distributions actually paid to the Company
or a Restricted Subsidiary by such Person during such period,
(3) gains or losses on Asset Dispositions by the Company or its
Subsidiaries,
(4) all extraordinary gains and extraordinary losses,
(5) the cumulative effect of changes in accounting principles,
(6) non-cash gains or losses resulting from fluctuations in
currency exchange rates and
(7) the tax effect of any of the items described in clauses (1)
through (6) above;
provided, further, that for purposes of any determination pursuant to the
provisions of Section 302 hereof, there shall further be excluded therefrom the
net income (but not net loss) of any Restricted Subsidiary that is not a
Subsidiary Guarantor that is subject to a restriction which prevents the payment
of dividends or the making of distributions to the Company or another Restricted
Subsidiary to the extent of such restriction.
"Consolidated Net Worth" of any Person means the consolidated
stockholders' equity of such Person, determined on a consolidated basis in
accordance with generally accepted accounting principles, less amounts
attributable to Redeemable Stock of such Person; provided that, with respect to
the Company, adjustments following the date of this Supplemental Indenture to
the accounting books and records of the Company in accordance with Accounting
Principles Board Opinions Nos. 16 and 17 (or successor opinions thereto) or
otherwise resulting from the acquisition of control of the Company by another
Person shall not be given effect to.
"Consolidated Net Tangible Assets" of any Person means the total amount
of assets (less applicable reserves and other properly deductible items) which
under generally accepted accounting
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principles would be included on a consolidated balance sheet of such Person and
its Restricted Subsidiaries after deducting therefrom:
(1) all goodwill, trade names, trademarks, patents, patent
applications, licenses, non-complete agreements, unamortized
debt discount and expense and other like intangibles, which in
each case under generally accepted accounting principles would
be included on such consolidated balance sheet and
(2) appropriate deductions for any minority interests.
"Debt" means (without duplication), with respect to any Person, whether
recourse is to all or a portion of the assets of such Person and whether or not
contingent:
(1) every obligation of such Person for money borrowed;
(2) every obligation of such Person evidenced by bonds,
debentures, notes or other similar instruments, including
obligations Incurred in connection with the acquisition of
property, assets or businesses;
(3) every reimbursement obligation of such Person with respect to
letters of credit, bankers' acceptances or similar facilities
issued for the account of such Person;
(4) every obligation of such Person issued or assumed as the
deferred purchase price of property or services (including
securities repurchase agreements but excluding trade accounts
payable or accrued liabilities arising in the ordinary course
of business);
(5) every Capital Lease Obligation of such Person;
(6) all Receivables Sales of such Person which are sold with
recourse to such Person;
(7) all Redeemable Stock issued by such Person;
(8) if such Person is a Restricted Subsidiary, all Preferred Stock
issued by such Person;
(9) every net obligation under Interest Rate, Currency or
Commodity Price Agreements of such Person; and
(10) every obligation of the type referred to in clauses (1)
through (9) of another Person and all dividends of another
Person the payment of which, in either case, (a) such Person
has Guaranteed or is responsible or liable, directly or
indirectly, as obligor, Guarantor or otherwise or (b) is
secured by (or for which the holder of such obligation has an
existing right, contingent or otherwise, to be secured by) any
Lien upon or with respect to property (including, without
limitation, accounts and contract rights) owned by such
Person, even though such Person has not assumed or become
liable for the payment of such Debt or dividends.
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Notwithstanding the foregoing, Debt shall not include any obligation arising
from any agreement entered into in connection with the acquisition of any
business or assets with any seller of such business or assets that (1) provides
for the payment of earn-outs to such seller or (2) guarantees to such seller a
minimum price to be realized by such seller upon the sale of any Common Stock of
the Company that was issued by the Company to such seller in connection with
such acquisition.
The "amount" or "principal amount" of Debt at any time of determination
as used herein represented by (a) any contingent Debt, shall be the maximum
principal amount thereof, (b) any Debt issued at a price that is less than the
principal amount at maturity thereof, shall be the amount of the liability in
respect thereof determined in accordance with generally accepted accounting
principles, (c) any Receivables Sale, shall be the amount for which there is
recourse to the Seller, (d) any Redeemable Stock, shall be the maximum fixed
redemption or repurchase price in respect thereof, and (e) any Preferred Stock,
shall be the maximum voluntary or involuntary liquidation preference plus
accrued and unpaid dividends in respect thereof, in each case as of such time of
determination.
"Designated Senior Debt" of the Company means:
(1) Debt of the Company under the Senior Credit Facility and
(2) any Senior Debt of the Company
(a) which at the time of determination exceeds $25
million in aggregate principal amount outstanding or
available under a committed facility,
(b) which is specifically designated in the instrument
evidencing such Senior Debt as "Designated Senior
Debt" by the Company and
(c) as to which the Trustee has received an Officers'
Certificate of the Company specifying such Senior
Debt as "Designated Senior Debt".
"Equity Offering" means an offering of Common Stock of the Company that
results in aggregate cash net proceeds to the Company of at least $25 million.
"Floor Plan Debt" means Debt in an aggregate principal amount at any
time not to exceed the value of the Inventory of the Company and its Restricted
Subsidiaries, which Debt is secured primarily by a Lien on Inventory of the
Company and/or its Restricted Subsidiaries.
"Guarantee" by any Person means any obligation, contingent or
otherwise, of such Person guaranteeing, or having the economic effect of
guaranteeing, any Debt of any other Person (the "primary obligor") in any
manner, whether directly or indirectly, and including, without limitation, any
obligation of such Person,
(1) to purchase or pay (or advance or supply funds for the
purchase or payment of) such Debt or to purchase (or to
advance or supply funds for the purchase of) any security for
the payment of such Debt,
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(2) to purchase property, securities or services for the purpose
of assuring the holder of such Debt of the payment of such
Debt, or
(3) to maintain working capital, equity capital or other financial
statement condition or liquidity of the primary obligor so as
to enable the primary obligor to pay such Debt (and
"Guaranteed", "Guaranteeing" and "Guarantor" shall have
meanings correlative to the foregoing);
provided, however, that the Guarantee by any Person shall not include
endorsements by such Person for collection or deposit, in either case, in the
ordinary course of business.
"Incur" means, with respect to any Debt or other obligation of any
Person, to create, issue, incur (by conversion, exchange or otherwise), assume,
Guarantee or otherwise become liable in respect of such Debt or other obligation
including by acquisition of Subsidiaries or the recording, as required pursuant
to generally accepted accounting principles or otherwise, of any such Debt or
other obligation on the balance sheet of such Person (and "Incurrence",
"Incurred", "Incurable" and "Incurring" shall have meanings correlative to the
foregoing); provided, however, that a change in generally accepted accounting
principles that results in an obligation of such Person that exists at such time
becoming Debt shall not be deemed an Incurrence of such Debt.
"Interest Rate, Currency or Commodity Price Agreement" of any Person
means any forward contract, futures contract, swap, option or other financial
agreement or arrangement (including, without limitation, caps, floors, collars
and similar agreements) relating to, or the value of which is dependent upon,
interest rates, currency exchange rates or commodity prices or indices
(excluding contracts for the purchase or sale of goods in the ordinary course of
business).
"Inventory" of any Person means the automobile and automobile parts and
supplies inventories of such Person that are held for sale or lease, or are to
be used or consumed by such Person, in the ordinary course of business. The
value of each particular item of inventory shall be the historical purchase
price thereof.
"Investment" by any Person means any direct or indirect loan, advance
or other extension of credit or capital contribution (by means of transfers of
cash or other property (other than Capital Stock that is neither Redeemable
Stock nor Preferred Stock of a Restricted Subsidiary) to others or payments for
property or services for the account or use of others, or otherwise) to, or
purchase or acquisition of Capital Stock, bonds, notes, debentures or other
securities or evidence of Debt issued by, any other Person, including any
payment on a Guarantee of any obligation of such other Person, but shall not
include
(1) trade accounts receivable in the ordinary course of business
on credit terms made generally available to the customers of
such Person,
(2) any Permitted Interest Rate, Currency or Commodity Price
Agreement and
(3) endorsements of negotiable instruments and documents in the
ordinary course of business.
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"Investment Grade" means Baa3 or above in the case of Moody's (or the
equivalent under any successor rating categories of Moody's) and BBB- or above
in the case of S&P (or the equivalent under any successor rating categories of
S&P).
"Lien" means, with respect to any property or assets, any mortgage or
deed of trust, pledge, hypothecation, assignment, deposit arrangement, security
interest, lien, charge, easement (other than any easement not materially
impairing usefulness or marketability), encumbrance, preference, priority or
other security agreement or preferential arrangement of any kind or nature
whatsoever on or with respect to such property or assets (including, without
limitation, any conditional sale or other title retention agreement having
substantially the same economic effect as any of the foregoing).
"Liquid Securities" means securities
(1) of an issuer that is not an Affiliate of the Company and
(2) that are publicly traded on the New York Stock Exchange, the
American Stock Exchange or the Nasdaq National Market.
"Moody's" means Xxxxx'x Investor Service, Inc. and its successors.
"Net Available Proceeds" from any Asset Disposition by any Person means
cash or Cash Equivalents received (including by way of sale or discounting of a
note, instalment receivable or other receivable, but excluding any other
consideration received in the form of assumption by the acquiree of Debt or
other obligations relating to such properties or assets) therefrom by such
Person, net of:
(1) all legal, title and recording tax expenses, commissions and
other fees and expenses Incurred and all federal, state,
foreign and local taxes required to be accrued as a liability
as a consequence of such Asset Disposition;
(2) all payments made by such Person or its Restricted
Subsidiaries on any Debt which is secured by such assets in
accordance with the terms of any Lien upon or with respect to
such assets or which must by the terms of such Lien, or in
order to obtain a necessary consent to such Asset Disposition
or by applicable law, be repaid out of the proceeds from such
Asset Disposition;
(3) all distributions and other payments made to minority interest
holders in Restricted Subsidiaries of such Person or joint
ventures as a result of such Asset Disposition; and
(4) appropriate amounts to be provided by such Person or any
Restricted Subsidiary thereof, as the case may be, as a
reserve in accordance with generally accepted accounting
principles against any liabilities associated with such assets
and retained by such Person or any Restricted Subsidiary
thereof, as the case may be, after such Asset Disposition,
including, without limitation, liabilities under any
indemnification obligations and severance and other employee
termination costs associated with such Asset Disposition, in
each case as determined by the Board of Directors, in its
reasonable good faith judgment evidenced by a resolution of
the Board of Directors
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filed with the Trustee; provided, however, that any reduction
in such reserve within twelve months following the
consummation of such Asset Disposition will be treated for all
purposes of the Indenture and the Notes as a new Asset
Disposition at the time of such reduction with Net Available
Proceeds equal to the amount of such reduction.
"Offer to Purchase" means a written offer (the "Offer") sent by the
Company by first class mail, postage prepaid, to each Holder at his address
appearing in the Security Register on the date of the Offer offering to purchase
up to the principal amount of Notes specified in such Offer at the purchase
price specified in such Offer (as determined pursuant to this Supplemental
Indenture). Unless otherwise required by applicable law, the Offer shall specify
an expiration date (the "Offer Expiration Date") of the Offer to Purchase which
shall be, subject to any contrary requirements of applicable law, not less than
30 days or more than 60 days after the date of such Offer and a settlement date
(the "Purchase Date") for purchase of Notes within five Business Days after the
Offer Expiration Date. The Company shall notify the Trustee at least 15 Business
Days (or such shorter period as is acceptable to the Trustee) prior to the
mailing of the Offer of the Company's obligation to make an Offer to Purchase,
and the Offer shall be mailed by the Company or, at the Company's request, by
the Trustee in the name and at the expense of the Company. The Offer shall
contain a description of the events requiring the Company to make the Offer to
Purchase and all instructions and materials necessary to enable such Holders to
tender Notes pursuant to the Offer to Purchase. The Offer shall also state:
(1) the Section of this Supplemental Indenture pursuant to which
the Offer to Purchase is being made;
(2) the Offer Expiration Date and the Purchase Date;
(3) the aggregate principal amount of the Outstanding Notes
offered to be purchased by the Company pursuant to the Offer
to Purchase (including, if less than 100%, the manner by which
such has been determined pursuant to the section of this
Supplemental Indenture requiring the Offer to Purchase) (the
"Purchase Amount");
(4) the purchase price to be paid by the Company for each $1,000
aggregate principal amount of Notes accepted for payment (as
specified pursuant to this Supplemental Indenture) (the
"Purchase Price");
(5) that the Holder may tender all or any portion of the Notes
registered in the name of such Holder and that any portion of
a Note tendered must be tendered in an integral multiple of
$1,000 principal amount;
(6) the place or places where Notes are to be surrendered for
tender pursuant to the Offer to Purchase;
(7) that interest on any Note not tendered or tendered but not
purchased by the Company pursuant to the Offer to Purchase
will continue to accrue;
(8) that on the Purchase Date the Purchase Price will become due
and payable upon each Note being accepted for payment pursuant
to the Offer to Purchase and that interest thereon shall cease
to accrue on and after the Purchase Date;
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(9) that each Holder electing to tender a Note pursuant to the
Offer to Purchase will be required to surrender such Note at
the place or places specified in the Offer prior to the close
of business on the Expiration Date (such Note being, if the
Company or the Trustee so requires, duly endorsed by, or
accompanied by a written instrument of transfer in form
satisfactory to the Company and the Trustee duly executed by,
the Holder thereof or his attorney duly authorized in
writing);
(10) that Holders will be entitled to withdraw all or any portion
of Notes tendered if the Company (or their Paying Agent)
receives, not later than the close of business on the
Expiration Date, a telegram, telex, facsimile transmission or
letter setting forth the name of the Holder, the principal
amount of the Note the Holder tendered, the certificate number
of the Note the Holder tendered and a statement that such
Holder is withdrawing all or a portion of his tender;
(11) that (a) if Notes in an aggregate principal amount less than
or equal to the Purchase Amount are duly tendered and not
withdrawn pursuant to the Offer to Purchase, the Company shall
purchase all such Notes and (b) if Notes in an aggregate
principal amount in excess of the Purchase Amount are tendered
and not withdrawn pursuant to the Offer to Purchase, the
Company shall purchase Notes having an aggregate principal
amount equal to the Purchase Amount on a pro rata basis (with
such adjustments as may be deemed appropriate so that only
Notes in denominations of $1,000 or integral multiples thereof
shall be purchased); and
(12) that in the case of any Holder whose Note is purchased only in
part, the Company shall execute, and the Trustee shall
authenticate and deliver to the Holder of such Note without
service charge, a new Note or Notes, of any authorized
denomination as requested by such Holder, in an aggregate
principal amount equal to and in exchange for the unpurchased
portion of the Note so tendered.
If any of the Notes subject to an Offer to Purchase is a Global Security, then
the Offer shall be modified by the Company to the extent necessary to comply
with the procedures of the Depositary applicable to repurchases. Any Offer to
Purchase shall be governed by and effected in accordance with the Offer for such
Offer to Purchase.
"Permitted Holder" means:
(1) each of X.X. Xxxxxxxxxxxxx, Xx., Xxxx Xxxxxx and Xxxxx
Xxxxxxxx;
(2) the members of the immediate family of any of the persons
referred to in clause (1) above;
(3) any trust created for the benefit of the persons described in
clause (1) or (2) above or any of their estates; or
(4) any other Person that is wholly owned by any one or more of
the Persons described in clause (1), (2) or (3) above.
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"Permitted Interest Rate, Currency or Commodity Price Agreement" of any
Person means any Interest Rate, Currency or Commodity Price Agreement entered
into with one or more financial institutions in the ordinary course of business
that is designed to protect such Person against fluctuations in interest rates
or currency exchange rates with respect to Debt Incurred or proposed to be
Incurred and which shall have a notional amount no greater than the payments due
with respect to the Debt being hedged thereby, or in the case of currency or
commodity protection agreements, against currency exchange rate or commodity
price fluctuations in the ordinary course of business relating to then existing
financial obligations or then existing or sold production and not for purposes
of speculation.
"Permitted Investments" means:
(1) any Investment in the Company or a Restricted Subsidiary or a
Person that will become or be merged into or consolidated with
a Restricted Subsidiary as a result of such Investment,
(2) any Investment in a Permitted Joint Venture which, together
with any other outstanding Investment made pursuant to this
clause (2), does not exceed the greater of $10 million or 2.5%
of the Company's Consolidated Net Tangible Assets at the time
of such Investment and
(3) any non-cash consideration received in connection with an
Asset Disposition that was made in compliance with Section 306
hereof.
"Permitted Joint Venture" means any joint venture arrangement (which
may be structured as a corporation, partnership, trust, limited liability
company or any other Person):
(1) in which the Company and its Restricted Subsidiaries own an
equity interest of at least 25% of the equity interest of all
joint venturers thereof and
(2) which engages only in a business of the type conducted by the
Company and its Subsidiaries on the Closing Date or any
business ancillary thereto or supportive thereof.
"Preferred Stock" of any Person means Capital Stock of such Person of
any class or classes (however designated) that ranks prior, as to the payment of
dividends or as to the distribution of assets upon any voluntary or involuntary
liquidation, dissolution or winding up of such Person, to shares of Capital
Stock of any other class of such Person.
"Receivables" means receivables, chattel paper, instruments, documents
or intangibles evidencing or relating to the right to payment of money.
"Receivables Sale" of any Person means any sale of Receivables of such
Person (pursuant to a purchase facility or otherwise), other than in connection
with a disposition of the business operations of such Person relating thereto or
a disposition of defaulted Receivables for purpose of collection and not as a
financing arrangement.
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"Redeemable Stock" of any Person means any Capital Stock of such Person
that by its terms (or by the terms of any security into which it is convertible
or for which it is exchangeable) or otherwise (including upon the occurrence of
an event) matures or is required to be redeemed (pursuant to any sinking fund
obligation or otherwise) or is convertible into or exchangeable for Debt or is
redeemable at the option of the holder thereof, in whole or in part, at any time
prior to the final Stated Maturity of the Notes.
"Replacement Assets" means:
(1) properties and assets (other than cash or any Capital Stock or
other security) that will be used in the automotive retail
business, the business of the Company and its Restricted
Subsidiaries as conducted on the Closing Date or any business
ancillary thereto or supportive thereof; and
(2) Capital Stock of any Person that is engaged in the automotive
retail business, the business of the Company and its
Restricted Subsidiaries as conducted on the Closing Date or
any business ancillary thereto or supportive thereof and that
will be merged or consolidated with or into a Restricted
Subsidiary or that will become a Restricted Subsidiary.
"Restricted Subsidiary" means any Subsidiary of the Company, whether
existing on or after the Closing Date, unless such Subsidiary is an Unrestricted
Subsidiary.
"S&P" means Standard & Poor's Ratings Group, a division of McGraw Hill,
Inc., and its successors.
"Sale and Leaseback Transaction" of any Person means an agreement with
any lender or investor or to which such lender or investor is a party providing
for the leasing by such Person of any property or asset of such Person which has
been or is being sold or transferred by such Person more than 270 days after the
acquisition thereof or the completion of construction or commencement of
operation thereof to such lender or investor or to any person to whom funds have
been or are to be advanced by such lender or investor on the security of such
property or asset. The stated maturity of such arrangement shall be the date of
the last payment of rent or any other amount due under such arrangement prior to
the first date on which such arrangement may be terminated by the lessee without
payment of a penalty.
"Senior Credit Facility" means the Second Amended and Restated
Revolving Credit Agreement dated as of November 10, 1998 among the Company, its
subsidiaries, Chase Bank of Texas, National Association, as administrative
agent, Comerica Bank, as floorplan agent, NationsBank, N.A. as documentation
agent, U.S. Bank National Association, Bank of America, National Trust & Savings
Association, Bank One, N.A. and BankBoston, N.A., as co-agents, and other
lending institutions party thereto and any renewal, extension, refinancing or
refunding thereof.
"Senior Debt" means, with respect to any Person:
(1) the principal of (and premium, if any) and interest (including
interest accruing on or after the filing of any petition in
bankruptcy or for reorganization relating to such
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Person whether or not such claim for post-petition interest is
allowed in such proceeding) on, and penalties and any
obligation of such Person for reimbursement, indemnities and
fees relating to, the Senior Credit Facility,
(2) the principal of (and premium, if any) and interest on Debt of
such Person for money borrowed, whether Incurred on or prior
to the date of original issuance of the Notes or thereafter,
and any amendments, renewals, extensions, modifications,
refinancings and refundings of any such Debt and
(3) Permitted Interest Rate Agreements and Permitted Currency
Agreements entered into with respect to Debt described in
clauses (1) and (2) above.
Notwithstanding the foregoing, the following shall not constitute Senior Debt:
(1) any Debt as to which the terms of the instrument creating or
evidencing the same provide that such Debt is on a parity
with, or is not superior in right of payment to, the Notes or,
in the case of a Subsidiary Guarantor, a Subsidiary Guarantee,
(2) any Debt which is subordinated in right of payment in any
respect to any other Debt of such Person, other than Debt
under the Senior Credit Facility that is subordinated to other
Debt under the Senior Credit Facility solely by reason of
priority being granted under the Senior Credit Facility to
"swingline", overdraft of similar tranches of Debt,
(3) Debt evidenced by the Notes or a Subsidiary Guarantee,
(4) any Debt owed to a Person when such Person is a Subsidiary of
such Person
(5) any obligation of such Person with respect to any Capital
Stock of such Person,
(6) that portion of any Debt which is Incurred in violation of the
Indenture,
(7) Debt which, when Incurred and without respect to any election
under Section 1111(b) of Xxxxx 00, Xxxxxx Xxxxxx Code, is
without recourse to such Person,
(8) any liability for federal, state, local or other taxes owed or
owing by such Person,
(9) any Debt for the purchase of goods, materials or services, or
consisting of operating lease rental payments, in the ordinary
course of business or Debt consisting of trade payables or
other current liabilities (other than current liabilities for
money borrowed and the current portion of long-term Senior
Debt),
(10) Debt of or amounts owed by such Person for compensation to
employees or for services rendered, and
(11) Debt issued as a dividend on, or in redemption of or exchange
for, Capital Stock of such Person.
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"Significant Subsidiary" means, at any date of determination, any
Restricted Subsidiary that together with its Restricted Subsidiaries, represents
10% or more of the Company's total consolidated assets at the end of the most
recent fiscal quarter for which financial information is available or 10% or
more of the Company's consolidated net revenues or consolidated operating income
for the most recent four quarters for which financial information is available.
"Subordinated Debt" means Debt of the Company as to which the payment
of principal of (and premium, if any) and interest and other payment obligations
in respect of such Debt shall be subordinate to the prior payment in full of the
Notes to at least the following extent:
(1) no payments of principal of (or premium, if any) or interest
on or otherwise due in respect of such Debt may be permitted
for so long as any default in the payment of principal (or
premium, if any) or interest on the Notes exists;
(2) in the event that any other default that with the passing of
time or the giving of notice, or both, would constitute an
event of default exists with respect to the Notes, upon notice
by 25% or more in principal amount of the Notes to the
Trustee, the Trustee shall have the right to give notice to
the Company and the holders of such Debt (or trustees or
agents therefor) of a payment blockage, and thereafter no
payments of principal of (or premium, if any) or interest on
or otherwise due in respect of such Debt may be made for a
period of 179 days from the date of such notice; and
(3) such Debt may not
(A) provide for payments of principal of such Debt at the
stated maturity thereof or by way of a sinking fund
applicable thereto or by way of any mandatory
redemption, defeasance, retirement or repurchase
thereof by the Company (including any redemption,
retirement or repurchase which is contingent upon
events or circumstances, but excluding any retirement
required by virtue of acceleration of such Debt upon
an event of default thereunder), in each case prior
to the final Stated Maturity of the Notes or
(B) permit redemption or other retirement (including
pursuant to an offer to purchase made by the Company)
of such other Debt at the option of the holder
thereof prior to the final Stated Maturity of the
Notes, other than a redemption or other retirement at
the option of the holder of such Debt (including
pursuant to an offer to purchase made by the Company)
which is conditioned upon a change of control of the
Company pursuant to provisions substantially similar
to those described under "Change of Control" (and
which shall provide that such Debt will not be
repurchased pursuant to such provisions prior to the
Company's repurchase of the Notes required to be
repurchased by the Company pursuant to the provisions
described under "Change of Control").
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"Subsidiary" of any Person means:
(1) a corporation more than 50% of the combined voting power of
the outstanding Voting Stock of which is owned, directly or
indirectly, by such Person or by one or more other
Subsidiaries of such Person or by such Person and one or more
Subsidiaries thereof or
(2) any other Person (other than a corporation) in which such
Person, or one or more other Subsidiaries of such Person or
such Person and one or more other Subsidiaries thereof,
directly or indirectly, has at least a majority ownership and
power to direct the policies, management and affairs thereof.
"Unrestricted Subsidiary" means:
(1) any Subsidiary designated as such by the Board of Directors of
the Company as set forth below where
(a) neither the Company nor any of its other Subsidiaries
(other than another Unrestricted Subsidiary) provides
credit support for, or Guarantee of, any Debt of such
Subsidiary or any Subsidiary of such Subsidiary
(including any undertaking, agreement or instrument
evidencing such Debt) or is directly or indirectly
liable for any Debt of such Subsidiary or any
Subsidiary of such Subsidiary, and
(b) no default with respect to any Debt of such
Subsidiary or any Subsidiary of such Subsidiary
(including any right which the holders thereof may
have to take enforcement action against such
Subsidiary) would permit (upon notice, lapse of time
or both) any holder of any other Debt of the Company
and its Subsidiaries (other than another Unrestricted
Subsidiary) to declare a default on such other Debt
or cause the payment thereof to be accelerated or
payable prior to its final scheduled maturity and
(2) any Subsidiary of an Unrestricted Subsidiary.
The Board of Directors of the Company may designate any Subsidiary to
be an Unrestricted Subsidiary unless such Subsidiary owns any Capital Stock of,
or owns or holds any Lien on any property of, any other Restricted Subsidiary
which is not a Subsidiary of the Subsidiary to be so designated or otherwise an
Unrestricted Subsidiary, provided that the Company could make a Restricted
Payment in an amount equal to the greater of the fair market value and book
value of such Subsidiary pursuant to Section 302 hereof and such amount is
thereafter treated as a Restricted Payment for the purpose of calculating the
aggregate amount available for Restricted Payments thereunder.
"Voting Stock" of any Person means Capital Stock of such Person which
ordinarily has voting power for the election of directors (or persons performing
similar functions) of such Person, whether at all times or only so long as no
senior class of securities has such voting power by reason of any contingency.
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"Wholly Owned Restricted Subsidiary" of any Person means a Restricted
Subsidiary of such Person all of the outstanding Capital Stock or other
ownership interests of which (other than directors' qualifying shares) shall at
the time be owned by such Person or by one or more Wholly Owned Restricted
Subsidiaries of such Person or by such Person and one or more Wholly Owned
Restricted Subsidiaries of such Person.
SECTION 102. TO BE READ WITH ORIGINAL INDENTURE
The First Supplemental Indenture is a supplemental indenture within the
meaning of the Original Indenture and the Original Indenture and this First
Supplemental Indenture shall be read together and shall have effect, so far as
practicable, as though all the provisions of the Original Indenture and this
First Supplemental Indenture were contained in one instrument.
ARTICLE TWO
THE NOTES
SECTION 201. DESIGNATION
There is hereby authorized to be issued under the Original Indenture a
series of Securities designated as "10 7/8% Senior Subordinated Notes due March
1, 2009".
SECTION 202. LIMIT OF AGGREGATE PRINCIPAL AMOUNT
The aggregate principal amount of Notes that may be authenticated and
delivered (except for Notes authenticated and delivered upon registration of
transfer of, or in exchange for, or in lieu of, other Notes pursuant to Section
304, 305, 306, 906 or 1107 of the Original Indenture and except for any Notes
which, pursuant to Section 303 of the Original Indenture, are deemed never to
have been authenticated and delivered) shall be limited to $100,000,000.
SECTION 203. SUBSIDIARY GUARANTEES.
(a) Subject to the provisions of this Section 203, the Notes shall have
the benefit of the Subsidiary Guarantees.
(b) In addition to the conditions contained in Section 1304 of the
Original Indenture for release of Subsidiary Guarantors from their Subsidiary
Guarantees, in the event that (1) any Subsidiary Guarantor ceases to have
outstanding any Debt (including Guarantees) other than Debt consisting of Floor
Plan Debt, Guarantees of Floor Plan Debt of the Company or such Subsidiary
Guarantor's Subsidiary Guarantee and (2) the Company's corporate credit rating
from either Xxxxx'x or S&P is Investment Grade, the Company may, at its option,
obtain the release of such Subsidiary Guarantor's Subsidiary Guarantee by
delivering an Officers' Certificate to the Trustee certifying to such effect.
Upon delivery by the Company of such Officers' Certificate and an Opinion of
Counsel stating that all conditions precedent herein provided for relating to
the release of such Subsidiary Guarantor from its obligations under its
Subsidiary Guarantee and Article Thirteen of the Original Indenture have been
complied with, such Subsidiary Guarantor shall be released and discharged of
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its obligations under its Subsidiary Guarantee and under Article Thirteen of the
Original Indenture without any action on the part of the Trustee or any Holder,
and the Trustee shall execute any documents reasonably required in order to
acknowledge the release of such Subsidiary Guarantor from its obligations under
its Subsidiary Guarantee endorsed on the Securities and under Article Thirteen
of the Original Indenture.
(c) Notwithstanding the provisions of Article 1305 of the Original
Indenture, the Company shall not be required to cause any Subsidiary of the
Company that becomes a Restricted Subsidiary after the date of the Original
Indenture to become a Subsidiary Guarantor unless such Restricted Subsidiary has
outstanding any Debt (including Guarantees) other than Debt consisting of Floor
Plan Debt or Guarantees of Floor Plan Debt of the Company.
(d) In the event that any Restricted Subsidiary that is not a
Subsidiary Guarantor Incurs any Debt other than Debt consisting of Floor Plan
Debt or Guarantees of Floor Plan Debt of the Company, the Company will cause
such Restricted Subsidiary to become a Subsidiary Guarantor with respect to the
Notes as soon as practicable after such Restricted Subsidiary Incurs such Debt.
The Company shall cause any such Restricted Subsidiary to become a Subsidiary
Guarantor with respect to the Notes by executing and delivering to the Trustee
(a) a supplemental indenture, in form and substance satisfactory to the Trustee,
which subjects such Person to the provisions (including the representations and
warranties) of this Supplemental Indenture and the Original Indenture as a
Subsidiary Guarantor and (b) an Officers' Certificate and an Opinion of Counsel
stating that such supplemental indenture has been duly authorized and executed
by such Person and such supplemental indenture and such Person's obligations
under its Subsidiary Guarantee and this Supplemental Indenture and the Original
Indenture constitute the legal, valid, binding and enforceable obligations of
such Person (subject to such customary exceptions concerning creditors' rights
and equitable principles as may be acceptable to the Trustee in its discretion).
SECTION 204. SUBORDINATION
The definitions of Senior Debt and Designated Senior Debt which shall
apply to the Notes and the Subsidiary Guarantees of the Notes are set forth in
Section 101 hereof.
SECTION 205. DATE OF PAYMENT OF PRINCIPAL
The principal of the Notes shall be payable on March 1, 2009.
SECTION 206. INTEREST
(1) The Notes shall bear interest at the rate of 10.875% per annum;
provided, that any principal and premium and any installment of interest which
is overdue shall bear interest at the rate of 11.875% per annum (to the extent
that the payment of such interest shall be legally enforceable).
(2) Interest in respect of the Notes shall accrue from and including
March 5, 1999 or from and including the most recent Interest Payment Date to
which interest has been paid or duly provided for.
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(3) The Interest Payment Dates on which interest shall be payable in
respect of the Notes shall be March 1 and September 1 in each year, commencing
September 1, 1999.
(4) The Regular Record Dates for interest in respect of the Notes shall
be February 15 and August 15 (whether or not a Business Day) in respect of the
interest payable on March 1 and September 1, respectively.
SECTION 207. PLACE OF PAYMENT
Payments of the principal, premium, if any, and interest on the Notes
will be made at the office or agency of the Company maintained for that purpose
in the City of New York, New York, provided that at the option of the Company
payment of interest may be made by check mailed to the address of the Person
entitled thereto as such address shall appear in the Security Register for the
Notes.
SECTION 208. REDEMPTION
(a) The Notes may be redeemed at the election of the Company from time
to time in the event that on or before March 1, 2002 the Company receives net
proceeds from the sale of its Common Stock in one or more Equity Offerings, in
which case the Company may, at its option and from time to time, use all or a
portion of any such net proceeds to redeem Notes in an aggregate principal
amount of up to $35,000,000; provided, however, that Notes in an aggregate
principal amount equal to at least $65,000,000 remain outstanding after each
such redemption. Any such redemption must occur on a Redemption Date within 75
days of any such sale at a Redemption Price of 110.875% of the principal amount
of the Notes, together with accrued interest to but excluding the Redemption
Date (subject to the right of Holders of record on the relevant Regular Record
Date to receive interest due on an Interest Payment Date that is on or prior to
the Redemption Date).
In the case of any redemption pursuant to this Section 208(a), in
addition to the requirements of Section 1102 of the Original Indenture the
Company shall also furnish the Trustee an Officers' Certificate stating that the
Company is entitled to effect such redemption and setting forth a statement of
facts showing that the condition or conditions precedent to the right of the
Company so to redeem have occurred or been satisfied. In addition to the
information specified in Section 1104 of the Original Indenture, the notice of
redemption shall include a brief statement setting forth the Company's right to
effect such redemption and the Company's basis therefor.
(b) The Notes further may be redeemed at the election of the Company,
as a whole or from time to time in part, at any time on or after March 1, 2004,
at the Redemption Prices specified in the form of Note attached hereto as Annex
A together with accrued interest to the Redemption Date.
SECTION 209. DEFEASANCE
The Notes shall be defeasible pursuant to both of Section 1502 and
Section 1503 of the Original Indenture.
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SECTION 210. FORM
The Notes shall be issuable in whole initially in the form of one or
more Global Securities and shall be substantially in the form set forth in Annex
A hereto. The Depository for such Global Securities shall be The Depository
Trust Company, 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
SECTION 211. ADDITIONAL EVENTS OF DEFAULT
In addition to the Events of Default contained in Section 501 of the
Original Indenture, the following will constitute an Event of Default with
respect to the Notes:
(1) Default in the performance, or breach, of any of Sections 306,
309 or 312 hereof.
SECTION 212. ADDITIONAL COVENANTS
The covenants contained in Article Three of this First Supplemental
Indenture shall apply to the Notes in addition to the covenants contained in
Article Ten of the Original Indenture.
ARTICLE THREE
ADDITIONAL COVENANTS APPLICABLE TO THE NOTES
SECTION 301. LIMITATION ON DEBT
The Company may not, and may not permit any Restricted Subsidiary to,
Incur any Debt except that the Company and any Subsidiary Guarantor (but not any
Restricted Subsidiary that is not a Subsidiary Guarantor) may Incur Debt if
after giving pro forma effect to the Incurrence of such Debt and the receipt and
application of the proceeds thereof the Consolidated Cash Flow Coverage Ratio of
the Company would be greater than 2.0 to 1.
Notwithstanding the foregoing limitation, the following Debt may be
Incurred.
(1) Debt of the Company or any Subsidiary Guarantor, other than
Floor Plan Debt, under the Senior Credit Facility in an
aggregate principal amount at any one time not to exceed the
greater of $110 million or 30% of the Company's Consolidated
Net Tangible Assets at the time of such Incurrence;
(2) Debt of the Company or any Restricted Subsidiary consisting of
Floor Plan Debt or Guarantees of Floor Plan Debt of the
Company;
(3) Debt owed by the Company to any Wholly Owned Restricted
Subsidiary for which fair value has been received or Debt owed
by a Restricted Subsidiary to the Company or a Wholly Owned
Restricted Subsidiary; provided, however, that:
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(a) any such Debt owing by the Company to a Wholly Owned
Restricted Subsidiary shall be Subordinated Debt
evidenced by an intercompany promissory note and
(b) upon either the transfer or other disposition by such
Wholly Owned Restricted Subsidiary or the Company of
any Debt so permitted to a Person other than the
Company or another Wholly Owned Restricted Subsidiary
or the issuance (other than directors' qualifying
shares), sale, transfer or other disposition of
shares of Capital Stock (including by consolidation
or merger) of such Wholly Owned Restricted Subsidiary
to a Person other than the Company or another such
Wholly Owned Restricted Subsidiary, the provisions of
this clause (3) shall no longer be applicable to such
Debt and such Debt shall be deemed to have been
Incurred at the time of such transfer or other
disposition;
(4) Debt consisting of the Notes, the Subsidiary Guarantees and
Guarantees by Restricted Subsidiaries of any Debt Incurred to
refinance or refund the Notes;
(5) Debt of the Company or any Restricted Subsidiary consisting of
Permitted Interest Rate, Currency or Commodity Price
Agreements;
(6) Debt which is exchanged for or the proceeds of which are used
to refinance or refund, or any extension or renewal of (each
of the foregoing, a "refinancing"),
(a) the Notes,
(b) outstanding Debt that is not described in any other
clause hereof that was outstanding as of the Closing
Date after giving effect to the application of the
proceeds from the sale of the Notes as described in
Schedule I hereto,
(c) outstanding Debt Incurred pursuant to the first
paragraph of this Section 301, and
(d) Debt previously Incurred pursuant to this clause (6),
in each case in an aggregate principal amount not to exceed the
principal amount of the Debt so refinanced plus the amount of any
premium required to be paid in connection with such refinancing
pursuant to the terms of the Debt so refinanced or the amount of any
premium reasonably determined by the Company as necessary to accomplish
such refinancing by means of a tender offer or privately negotiated
repurchase, plus the expenses of the Company or the Restricted
Subsidiary, as the case may be, incurred in connection with such
refinancing; provided, however, that:
(i) Debt the proceeds of which are used to refinance the
Notes or Debt which is pari passu with or subordinate
in right of payment to the Notes shall only be
permitted if (A) in the case of any refinancing of
the Notes or Debt which is pari passu to the Notes,
the refinancing Debt is Incurred by the Company
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and made pari passu to the Notes or subordinated to
the Notes, and (B) in the case of any refinancing of
Debt which is subordinated to the Notes, the
refinancing Debt is Incurred by the Company and
constitutes Debt that is subordinated to the Notes at
least to the same extent as the Debt being
refinanced;
(ii) the refinancing Debt by its terms, or by the terms of
any agreement or instrument pursuant to which such
Debt is issued, (A) does not have an Average Life
that is less than the remaining Average Life of the
Debt being refinanced and (B) does not permit
redemption or other retirement (including pursuant to
an offer to purchase) of such Debt at the option of
the holder thereof prior to the final stated maturity
of the Debt being refinanced, other than a redemption
or other retirement at the option of the holder of
such Debt (including pursuant to an offer to
purchase) which is conditioned upon provisions
substantially similar to those contained in Section
306 or Section 309 hereof;
(iii) in the case of any refinancing of Debt of the
Company, the refinancing Debt may be Incurred only by
the Company, and in the case of any refinancing of
Debt of a Restricted Subsidiary, the refinancing Debt
may be Incurred only by such Restricted Subsidiary or
the Company; and
(iv) in the case of any refinancing of Preferred Stock of
a Restricted Subsidiary, such Preferred Stock may be
refinanced only with Preferred Stock of such
Restricted Subsidiary; and
(7) Debt of the Company or any Subsidiary Guarantor not otherwise
permitted to be Incurred pursuant to clauses (1) through (6)
above, which, together with any other outstanding Debt
Incurred pursuant to this clause (7), and in both such cases
including any renewals, extensions, substitutions,
refinancings or replacements of such Debt has an aggregate
principal amount not in excess of $25 million at any time
outstanding.
For purposes of determining compliance with this Section 301, in the
event that an item of proposed Debt meets the criteria of more than one of the
categories of Debt described in clauses (1) through (7) above, or is entitled to
be Incurred pursuant to the first paragraph of this Section 301, the Company
will be permitted to classify such item of Debt on the date of its Incurrence in
any manner that complies with this covenant.
SECTION 302. LIMITATION ON RESTRICTED PAYMENTS
The Company:
(1) may not, and may not permit any Restricted Subsidiary to,
directly or indirectly, declare or pay any dividend or make
any distribution (including any payment in connection with any
merger or consolidation derived from assets of the Company or
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any Restricted Subsidiary) in respect of its Capital Stock or
to the holders thereof (in their capacity as holders of
Capital Stock), other than
(a) any dividends or distributions by the Company payable
solely in shares of its Capital Stock (other than
Redeemable Stock) or in options, warrants or other
rights to acquire its Capital Stock (other than
Redeemable Stock), and
(b) in the case of a Restricted Subsidiary, dividends or
distributions payable to the Company or a Wholly
Owned Restricted Subsidiary or pro rata dividends or
distributions,
(2) may not, and may not permit any Restricted Subsidiary to,
purchase, redeem, or otherwise acquire or retire for value
(a) any Capital Stock of the Company or any Restricted
Subsidiary or
(b) any options, warrants or other rights to acquire
shares of Capital Stock of the Company or any
Restricted Subsidiary or any securities convertible
or exchangeable into shares of Capital Stock of the
Company or any Restricted Subsidiary,
in each case except, in the case of Capital Stock of a
Restricted Subsidiary, from the Company or a Wholly Owned
Restricted Subsidiary;
(3) may not make, or permit any Restricted Subsidiary to make, any
Investment in any Unrestricted Subsidiary or any Affiliate or
any Person that would become an Affiliate after giving effect
thereto, other than a Permitted Investment; and
(4) may not, and may not permit any Restricted Subsidiary to,
redeem, repurchase, defease or otherwise acquire or retire for
value prior to any scheduled maturity, repayment or sinking
fund payment Debt of the Company which is subordinate in right
of payment to the Notes
(each of clauses (1) through (4) being a "Restricted Payment") unless:
(a) no Event of Default, or an event that with the passing of time
or the giving of notice, or both, would constitute an Event of
Default, has occurred and is continuing or would result from
such Restricted Payment,
(b) the Company could Incur at least $1.00 of additional Debt
pursuant to the terms of the first paragraph of Section 301
hereof, calculating the Consolidated Cash Flow Coverage Ratio
on a pro forma basis to give effect to such Restricted Payment
as if such Restricted Payment had been made at the beginning
of the applicable four-fiscal-quarter period if such pro
forma effect would affect the calculation of the Consolidated
Cash Flow Coverage Ratio, and
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(c) upon giving effect to such Restricted Payment, the aggregate
of all Restricted Payments from the Closing Date does not
exceed the sum of:
(i) 50% of cumulative Consolidated Net Income (or, in the
case Consolidated Net Income shall be negative, less
100% of such deficit) of the Company since January 1,
1999 through the last day of the last full fiscal
quarter ending immediately preceding the date of such
Restricted Payment for which quarterly or annual
financial statements are available (taken as a single
accounting period); plus
(ii) 100% of the aggregate net cash proceeds received by
the Company after the Closing Date from contributions
of capital or the issuance and sale (other than to a
Subsidiary of the Company) of Capital Stock (other
than Redeemable Stock) of the Company, options,
warrants or other rights to acquire Capital Stock
(other than Redeemable Stock) of the Company and Debt
of the Company that has been converted into or
exchanged for Capital Stock (other than Redeemable
Stock and other than by or from a Subsidiary of the
Company) of the Company after the Closing Date,
provided that any such net proceeds received by the
Company from an employee stock ownership plan
financed by loans from the Company or a Subsidiary of
the Company shall be included only to the extent such
loans have been repaid with cash on or prior to the
date of determination; plus
(iii) an amount equal to the net reduction in Investments
by the Company and its Restricted Subsidiaries,
subsequent to the Closing Date, in any Person subject
to clause (3) above upon the disposition, liquidation
or repayment (including by way of dividends) thereof
or from redesignations of Unrestricted Subsidiaries
as Restricted Subsidiaries, but only to the extent
such amounts are not included in Consolidated Net
Income and not to exceed in the case of any one
Person the amount of Investments previously made by
the Company and its Restricted Subsidiaries in such
Person; plus
(iv) $5 million.
Notwithstanding the foregoing, so long as no Event of Default, or event
that with the passing of time or the giving of notice, or both, would constitute
an Event of Default, shall have occurred and is continuing or would result
therefrom:
(1) the Company and any Restricted Subsidiary may pay any dividend
on Capital Stock of any class within 60 days after the
declaration thereof if, on the date when the dividend was
declared, the Company or such Restricted Subsidiary could have
paid such dividend in accordance with the foregoing
provisions;
(2) the Company may refinance any Debt otherwise permitted by
clause (6) of the second paragraph of Section 301 hereof or
redeem, acquire or retire any Debt solely in exchange for, by
conversion into or with the net proceeds of the substantially
concurrent sale (other than from or to a Subsidiary of the
Company
-25-
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or from or to an employee stock ownership plan financed by
loans from the Company or a Subsidiary of the Company) of
shares of Capital Stock (other than Redeemable Stock) of the
Company;
(3) the Company may purchase, redeem, acquire or retire any shares
of Capital Stock of the Company solely in exchange for, by
conversion into or with the net proceeds of the substantially
concurrent sale (other than from or to a Subsidiary of the
Company or from or to an employee stock ownership plan
financed by loans from the Company or a Subsidiary of the
Company) of shares of Capital Stock (other than Redeemable
Stock) of the Company; and
(4) the Company may purchase or redeem any Debt from Net Available
Proceeds to the extent permitted by Section 306 hereof.
Any payment made pursuant to clause (1) of this paragraph shall be a Restricted
Payment for purposes of calculating aggregate Restricted Payments pursuant to
the preceding paragraph and the amount of net proceeds from any exchange for,
conversion into or sale of Capital Stock of the Company pursuant to clause (2)
or (3) of this paragraph shall be excluded from the calculation of the amount
available for Restricted Payments pursuant to clause (c)(ii) above.
SECTION 303. LIMITATION ON DIVIDEND AND OTHER PAYMENT RESTRICTIONS
AFFECTING RESTRICTED SUBSIDIARIES
The Company may not, and may not permit any Restricted Subsidiary to,
directly or indirectly, create or otherwise cause or suffer to exist or become
effective any encumbrance or restriction on the ability of any Restricted
Subsidiary:
(1) to pay dividends (in cash or otherwise) or make any other
distributions in respect of its Capital Stock owned by the
Company or any other Restricted Subsidiary or pay any Debt or
other obligation owed to the Company or any other Restricted
Subsidiary;
(2) to make loans or advances to the Company or any other
Restricted Subsidiary; or
(3) to transfer any of its property or assets to the Company or
any other Restricted Subsidiary.
Notwithstanding the foregoing, the Company may, and may permit any
Restricted Subsidiary to, suffer to exist any such encumbrance or restriction:
(1) imposed pursuant to any agreement in effect on the Closing
Date (including the Senior Credit Facility);
(2) imposed pursuant to an agreement relating to any Debt Incurred
by a Person (other than a Restricted Subsidiary existing on
the Closing Date or any Restricted Subsidiary carrying on any
of the businesses of any such Restricted Subsidiary)
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prior to the date on which such Person became a Restricted
Subsidiary and outstanding on such date and not Incurred in
anticipation of becoming a Restricted Subsidiary, which
encumbrance or restriction is not applicable to any Person, or
the properties or assets of any Person, other than the Person
so acquired, provided that the Incurrence of such Debt is
permitted by Section 301 hereof;
(3) imposed pursuant to an agreement effecting a renewal,
refunding or extension of Debt Incurred pursuant to an
agreement referred to in clause (1) or (2) of this paragraph;
provided, however, that the provisions contained in such
renewal, refunding or extension agreement relating to such
encumbrance or restriction are no more restrictive in any
material respect than the provisions contained in the
agreement the subject thereof;
(4) in the case of a restriction described in clause (3) of the
preceding paragraph, contained in any security agreement
(including a capital lease) securing Debt of a Restricted
Subsidiary otherwise permitted under the Indenture, but only
to the extent such restrictions restrict the transfer of the
property subject to such security agreement;
(5) in the case of a restriction described in clause (3) of the
preceding paragraph, consisting of customary nonassignment
provisions entered into in the ordinary course of business in
leases and other contracts to the extent such provisions
restrict the transfer or subletting of any such lease or the
assignment of rights under any such contract;
(6) contained in a franchise or other agreement entered into in
the ordinary course of business with an automobile
manufacturer and which has terms reasonably customary for such
agreements between or among such automobile manufacturer, its
dealers and/or the owners of such dealers;
(7) with respect to a Restricted Subsidiary, imposed pursuant to
an agreement which has been entered into for the sale or
disposition of all or substantially all of the Capital Stock
or assets of such Restricted Subsidiary, provided that such
restriction terminates if such transaction is closed or
abandoned; or
(8) if such encumbrance or restriction is the result of applicable
laws or regulations relating to the payment of dividends or
distributions.
SECTION 304. LIMITATION ON RANKING OF CERTAIN DEBT
The Company:
(1) may not Incur any Debt which by its terms is both subordinate
in right of payment to any Senior Debt of the Company and
senior in right of payment to the Notes;
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(2) may not permit any Subsidiary Guarantor to Incur any Debt
which by its terms is both subordinate in right of payment to
any Senior Debt of such Subsidiary Guarantor and senior in
right of payment to the Subsidiary Guarantee of such
Subsidiary Guarantor; and
(3) may not permit any Restricted Subsidiary to Guarantee any Debt
of the Company that is subordinate in right of payment to the
Notes unless:
(a) the Guarantee by such Restricted Subsidiary of such
other Debt shall be subordinated to such Restricted
Subsidiary's Subsidiary Guarantee at least to the
same extent as such Debt of the Company is
subordinated to the Notes and
(b) such Restricted Subsidiary waives, and agrees that it
will not in any manner whatsoever claim or take the
benefit or advantage of, any rights of reimbursement,
indemnity or subrogation or any other rights against
the Company or any other Restricted Subsidiary as a
result of any payment by such Restricted Subsidiary
under its Guarantee of such other Debt of the Company
until the Notes have been paid in full.
For purposes of this Section 304, no Debt shall be deemed subordinate in right
of payment to any other Debt solely by reason of such other Debt having the
benefit of a security interest.
SECTION 305. LIMITATION ON LIENS SECURING SUBORDINATED DEBT
The Company may not, and may not permit any Restricted Subsidiary to,
Incur or suffer to exist any Lien on or with respect to any property or assets
now owned or hereafter acquired to secure any Debt that is expressly by its
terms subordinate or junior in right of payment to any other Debt of the Company
or such Restricted Subsidiary without making, or causing such Restricted
Subsidiary to make, effective provision for securing the Notes or such
Restricted Subsidiary's Subsidiary Guarantee (1) equally and ratably with such
Debt as to such property or assets for so long as such Debt will be so secured
or (2) in the event such Debt is subordinate in right of payment to the Notes or
such Subsidiary Guarantee, prior to such Debt as to such property or assets for
so long as such Debt will be so secured.
SECTION 306. LIMITATION ON ASSET DISPOSITIONS
(a) The Company may not, and may not permit any Restricted Subsidiary
to, make any Asset Disposition in one or more related transactions unless:
(1) the Company or the Restricted Subsidiary, as the case may be,
receives consideration for such disposition at least equal to
the fair market value for the assets sold or disposed of as
determined by the Board of Directors of the Company in good
faith and evidenced by a Board Resolution of the Company;
(2) at least 80% of the consideration for such disposition
consists of:
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(a) cash or Cash Equivalents;
(b) the assumption of Debt of the Company or such
Restricted Subsidiary (other than Debt that is
subordinated to the Notes or such Restricted
Subsidiary's Subsidiary Guarantee) relating to such
assets and release from all liability on the Debt
assumed;
(c) Replacement Assets; or
(d) a combination of the foregoing;
provided that the amount of any Liquid Securities received by the
Company or such Restricted Subsidiary received as consideration that
are converted into cash within 180 days of the closing of such Asset
Disposition shall be deemed to be cash for purposes of this provision
(to the extent of the cash received); and
(3) all Net Available Proceeds, less any amounts invested within
360 days of such disposition in Replacement Assets, are
applied within 360 days of such disposition:
(a) first, to the permanent repayment or reduction of
Senior Debt of the Company then outstanding under any
agreements or instruments which would require such
application or prohibit payments pursuant to clause
(b) following,
(b) second, to the extent of remaining Net Available
Proceeds, to make an Offer to Purchase outstanding
Notes at 100% of their principal amount plus accrued
interest to the date of purchase and, to the extent
required by the terms thereof, any other Debt of the
Company that is pari passu with the Notes at a price
no greater than 100% of the principal amount thereof
plus accrued interest to the date of purchase,
(c) third, to the extent of any remaining Net Available
Proceeds following the completion of the Offer to
Purchase, to the repayment of other Debt of the
Company or Debt of a Restricted Subsidiary, to the
extent permitted under the terms thereof and
(d) fourth, to the extent of any remaining Net Available
Proceeds, to any other use as determined by the
Company which is not otherwise prohibited by the
Indenture.
Notwithstanding the foregoing, the Company shall not be required to make an
Offer to Purchase pursuant to clause 3(b) above if the remaining Net Available
Proceeds after giving effect to the application required by clause 3(a) is less
than $10 million.
(b) The Company will mail the Offer for an Offer to Purchase required
pursuant to Section 306(a) not more than 360 days after consummation of the
Asset Disposition referred to in
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Section 306(a). The aggregate principal amount of the Securities to be offered
to be purchased pursuant to the Offer to Purchase shall equal the Net Available
Proceeds available therefor pursuant to Clause (3)(b) of Section 306(a) (rounded
down to the next lowest integral multiple of $1,000). Each Holder shall be
entitled to tender all or any portion of the Securities owned by such Holder
pursuant to the Offer to Purchase, subject to the requirement that any portion
of a Security tendered must be tendered in an integral multiple of $1,000
principal amount.
The Company shall not be entitled to any credit against its obligations
in connection with any Offer to Purchase made pursuant to this Section 306 for
the principal amount of any Securities acquired by the Company otherwise than
pursuant to such Offer to Purchase.
(c) Not later than the date of the Offer with respect to an Offer to
Purchase pursuant to this Section 306, the Company shall deliver to the Trustee
an Officers' Certificate as to (i) the Purchase Amount, (ii) the allocation of
the Net Available Proceeds from the Asset Disposition pursuant to which such
Offer is being made, including, if any consideration consists of Replacement
Assets or any amounts are invested in Replacement Assets, the actual assets
acquired and a statement indicating the relationship of such assets to the
business of the Company and (iii) the compliance of such allocation with the
provisions of Section 306(a).
The Company and the Trustee shall perform their respective obligations
specified in the Offer for the Offer to Purchase. On or prior to the Purchase
Date, the Company shall (i) accept for payment (on a pro rata basis, if
necessary) Securities or portions thereof tendered pursuant to the Offer, (ii)
deposit with the paying agent (or, if the Company is acting as its own paying
agent, segregate and hold in trust as provided in Section 1003) of the Original
Indenture money sufficient to pay the purchase price of all Securities or
portions thereof so accepted and (iii) deliver or cause to be delivered to the
Trustee all Securities so accepted together with an Officers' Certificate
stating the Securities or portions thereof accepted for payment by the Company.
The paying agent (or the Company, if so acting) shall promptly mail or deliver
to Holders of Securities so accepted payment in an amount equal to the purchase
price, and the Trustee shall promptly authenticate and mail or deliver to such
Holders a new Security equal in principal amount to any unpurchased portion of
the Security surrendered. Any Security not accepted for payment shall be
promptly mailed or delivered by the Company to the Holder thereof. The Company
shall publicly announce the results of the Offer on or as soon as practicable
after the Purchase Date.
(d) Notwithstanding the foregoing, this Section 306 shall not apply to
any Asset Disposition which constitutes a transfer, conveyance, sale, lease or
other disposition of all or substantially all of the Company's properties or
assets within the meaning of Section 312 hereof.
SECTION 307. LIMITATION ON OWNERSHIP OF CAPITAL STOCK OF RESTRICTED SUBSIDIARIES
The Company may not, and may not permit any Restricted Subsidiary to,
issue, transfer, convey, lease or otherwise dispose of any shares of Capital
Stock of a Restricted Subsidiary or securities convertible or exchangeable into,
or options, warrants, rights or any other interest with respect to, Capital
Stock (other than directors' qualifying shares) of a Restricted Subsidiary to
any Person other than the Company or a Wholly Owned Restricted Subsidiary except
in a transaction consisting of a sale of all of the Capital Stock of such
Restricted Subsidiary owned by the Company
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and any Restricted Subsidiary and that complies with the provisions of Section
306 hereof to the extent such provisions apply.
SECTION 308. TRANSACTIONS WITH AFFILIATES
The Company may not, and may not permit any Restricted Subsidiary to,
enter into any transaction (or series of related transactions) with an Affiliate
of the Company or a Restricted Subsidiary, including any Investment, either
directly or indirectly, unless such transaction is on terms no less favorable to
the Company or such Restricted Subsidiary than those that could be obtained in a
comparable arm's-length transaction with an entity that is not an Affiliate and
is in the best interests of such Company or such Restricted Subsidiary. For any
transaction that involves in excess of $1 million, a majority of the
disinterested members of the Board of Directors of the Company shall determine
that the transaction satisfies the above criteria and shall evidence such a
determination by a Board Resolution of the Company filed with the Trustee. For
any transaction that involves in excess of $10 million, the Company shall also
obtain an opinion from a nationally recognized expert with experience in
appraising the terms and conditions of the type of transaction (or series of
related transactions) for which the opinion is required stating that such
transaction (or series of related transactions) is on terms no less favorable to
the Company or such Restricted Subsidiary than those that could be obtained in a
comparable arm's-length transaction with an entity that is not an Affiliate of
the Company, which opinion shall be filed with the Trustee.
The foregoing requirements shall not apply to:
(1) any transaction pursuant to agreements in effect on the
Closing Date;
(2) any employment agreement or employee benefit arrangements with
any officer or director, including under any stock option or
stock incentive plans, entered into by the Company or any of
its Restricted Subsidiaries in the ordinary course of business
and consistent with the past practice of the Company or such
Restricted Subsidiary or approved by a majority of the
disinterested members of the Board of Directors;
(3) transactions between or among the Company and/or its
Restricted Subsidiaries;
(4) payment of reasonable directors fees to Persons who are not
otherwise employees of the Company;
(5) indemnities of officers, directors and employees of the
Company or any Subsidiary of the Company pursuant to bylaws,
or statutory provisions or indemnification agreements or the
purchase of indemnification insurance for any director or
officer;
(6) any Restricted Payment that is permitted to be made by Section
302 hereof; and
(7) written agreements entered into or assumed in connection with
acquisitions of other businesses with persons who were not
Affiliates prior to such transactions.
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Notwithstanding the foregoing, the requirements set forth in the third
sentence of the first paragraph of this Section 308 relating to an opinion from
a nationally recognized expert shall not apply to leases of property or
equipment entered into in the ordinary course of business.
SECTION 309. CHANGE OF CONTROL
(a) Upon the occurrence of a Change of Control each Holder of a Note
shall have the right to have such Note repurchased by the Company on the terms
and conditions precedent set forth in this Section 309 and the Indenture. The
Company shall, within 30 days following the occurrence of a transaction
resulting in a Change of Control, mail an Offer with respect to an Offer to
Purchase all Outstanding Notes at a purchase price equal to 101% of their
aggregate principal amount plus accrued interest to the Purchase Date (provided,
however, that installments of interest whose Stated Maturity is on or prior to
the Purchase Date shall be payable to the Holders of such Notes or one or more
Predecessor Securities registered as such at the close of business on the
relevant Record Dates according to their terms and the provisions of Section 307
of the Original Indenture). Each Holder shall be entitled to tender all or any
portion of the Notes owned by such Holder pursuant to the Offer to Purchase,
subject to the requirement that any portion of a Note tendered must be tendered
in an integral multiple of $1,000 principal amount.
(b) The Company and the Trustee shall perform their respective
obligations specified in the Offer for the Offer to Purchase. Prior to the
Purchase Date, the Company shall (i) accept for payment Notes or portions
thereof tendered pursuant to the Offer, (ii) deposit with the Paying Agent (or,
if the Company is acting as its own Paying Agent, segregate and hold in trust as
provided in Section 1003 of the Original Indenture) money sufficient to pay the
purchase price of all Notes or portions thereof so accepted and (iii) deliver or
cause to be delivered to the Trustee all Notes so accepted together with an
Officers' Certificate stating the Notes or portions thereof accepted for payment
by the Company. The Paying Agent (or the Company, if so acting) shall promptly
mail or deliver to Holders of Notes so accepted payment in an amount equal to
the Purchase Price, and the Trustee shall promptly authenticate and mail or
deliver to such Holders a new Note or Notes equal in principal amount to any
unpurchased portion of the Note surrendered as requested by the Holder. Any Note
not accepted for payment shall be promptly mailed or delivered by the Company to
the Holder thereof. The Company shall publicly announce the results of the Offer
on or as soon as practicable after the Purchase Date.
SECTION 310. PAYMENTS FOR CONSENT
The Company may not, and may not permit any of its Subsidiaries to,
directly or indirectly, pay or cause to be paid any consideration, whether by
way of interest, fee or otherwise, to any Holder for or as an inducement to any
consent, waiver or amendment of any of the terms or provisions of this
Supplemental Indenture, the Original Indenture, the Notes or any Subsidiary
Guarantee unless such consideration is offered to be paid or is paid to all
Holders of the Notes that consent, waive or agree to amend in the time frame set
forth in the solicitation documents relating to such consent, waiver or
agreement.
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SECTION 311. PROVISION OF FINANCIAL INFORMATION
Whether or not the Company is required to be subject to Section 13(a)
or 15(d) of the Exchange Act, or any successor provision thereto, the Company
shall file with the Commission the annual reports, quarterly reports and other
documents which the Company would have been required to file with the Commission
pursuant to such Section 13(a) or 15(d) or any successor provision thereto if
the Company were so required, such documents to be filed with the Commission on
or prior to the respective dates (the "Required Filing Dates") by which the
Company would have been required so to file such documents if the Company were
so required. The Company shall also in any event:
(1) within 15 days of each Required Filing Date transmit by mail
to all Holders, as their names and addresses appear in the
Security Register, without cost to such Holders, and file with
the Trustee, copies (without exhibits) of the annual reports,
quarterly reports and other documents which the Company files
with the Commission pursuant to such Section 13(a) or 15(d) or
any successor provision thereto or would have been required to
file with the Commission pursuant to such Section 13(a) or
15(d) or any successor provisions thereto if the Company were
required to be subject to such Sections and
(2) if filing such documents by the Company with the Commission is
not permitted under the Exchange Act, promptly upon written
request supply copies of such documents to any prospective
Holder and the Trustee.
SECTION 312. MERGERS, CONSOLIDATIONS AND CERTAIN SALES OF ASSETS
In addition to conditions set forth in Section 801 of the Original
Indenture, the Company shall not, in a single transaction or a series of related
transactions: (1) consolidate with or merge into any other Person or permit any
other Person to consolidate with or merge into the Company or (2) directly or
indirectly, transfer, sell, lease or otherwise dispose of all or substantially
all of its assets unless:
(1) immediately before and after giving pro forma effect to such
transaction and treating any Debt which becomes an obligation
of the Company or a Restricted Subsidiary as a result of such
transaction as having been Incurred by the Company or such
Restricted Subsidiary at the time of the transaction, no Event
of Default or event that with the passing of time or the
giving of notice, or both, would constitute an Event of
Default shall have occurred and be continuing;
(2) immediately after giving pro forma effect to such transaction,
the Consolidated Net Worth of the Company (or other successor
entity to the Company) is equal to or greater than that of the
Company immediately prior to the transaction;
(3) except in the case of any such consolidation or merger of the
Company with or into a Wholly Owned Restricted Subsidiary,
immediately after giving pro forma effect to such transaction
and treating any Debt which becomes an obligation of the
Company or a Restricted Subsidiary as a result of such
transaction as having been Incurred by the Company or such
Restricted Subsidiary at the time of the transaction, the
Company (including any successor entity to the Company) could
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Incur at least $1.00 of additional Debt pursuant to the
provisions of the first paragraph of Section 301 hereof; and
(4) if, as a result of any such transaction, property or assets of
the Company or a Restricted Subsidiary would become subject to
a Lien prohibited by the provisions of Section 305 hereof, the
Company and/or such Restricted Subsidiary or the successor
entity to the Company shall have secured the Notes or such
Restricted Subsidiary's Subsidiary Guarantee, as applicable,
as required by Section 305.
-------------------------------------------------
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this First
Supplemental Indenture to be duly executed all as of the day and year first
above written.
Group 1 Automotive, Inc.
By /s/ X.X. Xxxxxxxxxxxxx, Xx.
---------------------------------------
X.X. Xxxxxxxxxxxxx, Xx.
Chairman, President and
Chief Executive Officer
Southwest Toyota, Inc.
SMC Luxury Cars, Inc.
XxXxxx Automotive Group, Inc.
Courtesy Nissan, Inc.
Group 1 Ford, Inc.
XxXxxxxx Dodge, Inc.
Xxxxx Automotive Group, Inc.
Xxxx Xxxxx Automotive-H, Inc.
Xxxx Xxxxx Automotive-N, Inc.
Xxxx Xxxxx Autoplaza, Inc.
Xxxx Xxxxx Autoplex, Inc.
Xxxx Xxxxx Autoplex Buick, Inc.
Xxxx Xxxxx Autoplex Dodge, Inc.
Xxxx Xxxxx Autoplex-German Imports, Inc.
Xxxx Xxxxx Autoplex-V, Inc.
Xxxx Xxxxx L/M, Inc.
Xxxx Xxxxx GM, Inc.
Round Rock Nissan, Inc.
Xxxxx, Liu & Xxxxxx, Inc.
Xxxxx, Liu & Xxxx, Inc.
Town North Imports, Inc.
Town North Nissan, Inc.
Town North Suzuki, Inc.
Xxx Xxxxxx Automotive-A, Inc.
Xxx Xxxxxx Automotive-H, Inc.
Xxx Xxxxxx Chevrolet, Inc.
Xxx Xxxxxx Dodge, Inc.
Xxx Xxxxxx Motors, Inc.
Xxx Xxxxxx Nissan, Inc.
Xxxxxx Automotive Group, Inc.
Xxxxxx Pontiac-GMC, Inc.
Foyt Motors, Inc.
Kingwood Motors-H, Inc.
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Xxxxx Ford, Inc.
Courtesy Ford, Inc.
Perimeter Ford, Inc.
Flamingo Ford, Inc.
X. Xxxxxxx Management Group, Inc.
MMK Interests, Inc.
Highland Autoplex, Inc.
Xxxxxxx Texas Management, Inc.
Casa Chevrolet Inc.
Casa Chrysler Plymouth Jeep Inc.
Xxxxx Automotive Group, Inc.
Xxxx Chevrolet Co.
Xxxx Auto Group, Inc.
Xxx Xxxxxx Automotive-East, Inc.
GPI Atlanta, Inc.
Xxxx Xxxxx Autoplex-A, Inc.
Xxxx Xxxxx Motors, Inc.
Xxxx Xxxxx Imports, Inc.
Sunshine Buick Pontiac GMC Truck, Inc.
By /s/ Xxxxx X. Xxxxxxxx
---------------------------------------
Xxxxx X. Xxxxxxxx
Vice President
Lubbock Automotive-M, Inc.
Lubbock Auto Group, Inc.
Group 1 Realty, Inc.
By /s/ Xxxxx X. Xxxxxxxx
---------------------------------------
Xxxxx X. Xxxxxxxx
President
Prestige Chrysler Plymouth Northwest, Ltd.
Prestige Chrysler Plymouth South, Ltd.
Xxxxxxx Chrysler Plymouth Jeep Eagle, Ltd.
By: MMK Interests, Inc.
General Partner
By /s/ Xxxxx X. Xxxxxxxx
---------------------------------------
Xxxxx X. Xxxxxxxx
Vice President
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Prestige Xxxxxxx, Inc.
Xxxxxxx Holdings, Inc.
Group 1 Holdings-T, Inc.
Group 1 Holdings-GM, Inc.
By /s/ Xxxxxx X. Xxxxxx XX
---------------------------------------
Xxxxxx X. Xxxxxx XX
President
Xxxxxxx Xxxx, Ltd.
By: Xxxxxxx Texas
Management, Inc..
By /s/ Xxxxx X. Xxxxxxxx
---------------------------------------
Xxxxx X. Xxxxxxxx
Vice President
Lubbock Motors-F, Ltd.
Lubbock Motors-T, Ltd.
Rockwall Automotive-F, Ltd.
Amarillo Motors-C, Ltd.
Amarillo Motors-J, Ltd.
Amarillo Motors-F, Ltd.
By: Lubbock Motors, Inc.
By /s/ Xxxxx X. Xxxxxxxx
---------------------------------------
Xxxxx X. Xxxxxxxx
President
Chapparal Dodge, Ltd.
Colonial Chrysler-Plymouth, Ltd.
By: Xxxx Auto Group, Inc.
By /s/ Xxxxx X. Xxxxxxxx
---------------------------------------
Xxxxx X. Xxxxxxxx
Vice President
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Delaware Acquisition-CC, L.L.C.
Delaware Acquisition-F, L.L.C.
Delaware Acquisition-T, L.L.C.
Delaware Acquisition-GM, L.L.C.
By /s/ Xxxxxx X. Xxxxxx XX
---------------------------------------
Xxxxxx X. Xxxxxx XX
Manager
IBJ Whitehall Bank & Trust Company
By /s/ Xxxxx Xxxxx
---------------------------------------
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ANNEX A
[Face of Note]
[Insert if the Security is a Global Security--THIS SECURITY IS A GLOBAL SECURITY
WITHIN THE MEANINg OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN
THE NAME OF A DEPOSITARY OR A NOMINEE THEREOF. THIS SECURITY MAY NOT BE
EXCHANGED IN WHOLE OR IN PART FOR A SECURITY REGISTERED, AND NO TRANSFER OF THIS
SECURITY IN WHOLE OR IN PART MAY BE REGISTERED, IN THE NAME OF ANY PERSON OTHER
THAN SUCH DEPOSITARY OR A NOMINEE THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES
DESCRIBED IN THE INDENTURE.
Unless this certificate is presented by an authorized
representative of The Depository Trust Company (55 Xxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx) to the Company (as defined below) or its agent for registration of
transfer, exchange or payment, and any certificate issued is registered in the
name of Cede & Co. or such other name as requested by an authorized
representative of The Depository Trust Company and any payment is made to Cede &
Co., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY PERSON IS WRONGFUL since the registered owner hereof, Cede & Co., has an
interest herein.]
Group 1 Automotive, Inc.
10 7/8% Senior Subordinated Notes due March 1, 2009
No. $
---------- ---------
Group 1 Automotive, Inc. a corporation duly organized and existing
under the laws of Delaware (herein called the "Company", which term includes any
successor Person under the Indenture hereinafter referred to), for value
received, hereby promises to pay to ______________________________, or
registered assigns, the principal sum of ___________________ Dollars on March 1,
2009, and to pay interest thereon from March 5, 1999 or from the most recent
Interest Payment Date to which interest has been paid or duly provided for,
semi-annually on March 1 and September 1 in each year, commencing September 1,
1999, at the rate of 10.875% per annum, until the principal hereof is paid or
made available for payment, provided that any principal and premium, and any
such instalment of interest, which is overdue shall bear interest at the rate of
11.875% per annum (to the extent that the payment of such interest shall be
legally enforceable), from the dates such amounts are due until they are paid or
made available for payment, and such interest shall be payable on demand. The
interest so payable, and punctually paid or duly provided for, on any Interest
Payment Date will, as provided in such Indenture, be paid to the Person in whose
name this Security (or one or more Predecessor Securities) is registered at the
close of business on the Regular Record Date for such interest, which shall be
the February 15 or August 15 (whether or not a Business Day), as the case may
be, next preceding such Interest Payment Date. Any such interest not so
punctually paid or duly provided for will forthwith cease to be payable to the
Holder on such Regular Record Date and may either be paid to the Person in whose
name this Security (or one or more Predecessor Securities) is registered at the
close of business on a Special Record Date for the payment
41
of such Defaulted Interest to be fixed by the Trustee, notice whereof shall be
given to Holders of Securities of this series not less than 10 days prior to
such Special Record Date, or be paid at any time in any other lawful manner not
inconsistent with the requirements of any securities exchange on which the
Securities of this series may be listed, and upon such notice as may be required
by such exchange, all as more fully provided in said Indenture.
Payment of the principal of (and premium, if any) and interest on this
Security will be made at the office or agency of the Company maintained for that
purpose in The City of New York, New York, in such coin or currency of the
United States of America as at the time of payment is legal tender for payment
of public and private debts; provided, however, that at the option of the
Company payment of interest may be made by check mailed to the address of the
Person entitled thereto as such address shall appear in the Security Register.
Reference is hereby made to the further provisions of this Security set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof by manual signature, this Security
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated:
Group 1 Automotive, Inc.
By
---------------------------------------
Trustee's Certificate of Authentication
This is one of the Securities of the series designated therein referred
to in the within-mentioned Indenture.
IBJ Whitehall Bank & Trust Company,
as Trustee
By
---------------------------------------
Authorized Officer
-2-
42
[Reverse of Note]
This Security is one of a duly authorized issue of securities of the
Company (herein called the "Securities"), issued and to be issued in one or more
series under an Indenture, dated as of March 5, 1999, as supplemented by the
First Supplemental Indenture, dated as of March 5, 1999 (collectively herein
called the "Indenture", which term shall have the meaning assigned to it in such
instrument), among the Company, the Subsidiary Guarantors named therein and IBJ
Whitehall Bank and Trust Company, as Trustee (herein called the "Trustee", which
term includes any successor trustee under the Indenture), and reference is
hereby made to the Indenture for a statement of the respective rights,
limitations of rights, duties and immunities thereunder of the Company, the
Subsidiary Guarantors, the Trustee, the holders of Senior Debt and the Holders
of the Securities and of the terms upon which the Securities are, and are to be,
authenticated and delivered. This Security is one of the series designated on
the face hereof, limited in aggregate principal amount to $100,000,000.
The Securities of this series are subject to redemption upon not less
than 30 nor more than 60 days' notice by mail in the event that on or before
March 1, 2002 the Company receives net proceeds from the sale of its Common
Stock in one or more Equity Offerings, in which case the Company may, at its
option, use all or a portion of any such net proceeds to redeem Securities in an
aggregate principal amount of up to $35,000,000, provided, however, that at
least $65,000,000 in an aggregate principal amount of Securities remain
outstanding after each such redemption. Any such redemption must occur on a
Redemption Date within 75 days of any such sale at a Redemption Price of
110.875% of the principal amount of the Securities, together in the case of any
such redemption with accrued interest to the Redemption Date, but interest
installments whose Stated Maturity is on or prior to such Redemption Date will
be payable to the Holders of such Securities, or one or more Predecessor
Securities, of record at the close of business on the relevant Record Dates
referred to on the face hereof, all as provided in the Indenture.
The Securities of this series are further subject to redemption upon
not less than 30 nor more than 60 days' notice by mail, at any time on or after
March 1, 2004, as a whole or in part, at the election of the Company, at the
following Redemption Prices (expressed as percentages of the principal amount):
If redeemed during the 12-month period beginning March 1 of the years indicated:
Year Redemption Price
---- ----------------
2004 105.438%
2005 103.625%
2006 101.813%
and thereafter at a Redemption Price equal to 100% of the principal amount,
together in the case of any such redemption with accrued interest to the
Redemption Date, but interest instalments whose Stated Maturity is on or prior
to such Redemption Date will be payable to the Holders of such Securities, or
one or more Predecessor Securities, of record at the close of business on the
relevant Record Dates referred to on the face hereof, all as provided in the
Indenture.
-3-
43
In the event of redemption or repurchase of this Security in part only,
a new Security or Securities of this series and of like tenor for the unredeemed
portion hereof will be issued in the name of the Holder hereof upon the
cancellation hereof.
The indebtedness evidenced by this Security is, to the extent provided
in the Indenture, subordinate and subject in right of payment to the prior
payment in full of all Senior Debt of the Company, and this Security is issued
subject to the provisions of the Indenture with respect thereto. Each Holder of
this Security, by accepting the same, (a) agrees to and shall be bound by such
provisions, (b) authorizes and directs the Trustee on his behalf to take such
action as may be necessary or appropriate to effectuate the subordination so
provided and (c) appoints the Trustee his attorney-in-fact for any and all such
purposes.
As provided in the Indenture and subject to certain limitations therein
set forth, the obligations of the Company under this Security are guaranteed on
a senior subordinated basis pursuant to the Subsidiary Guarantees endorsed
hereon. The Indenture provides that a Subsidiary Guarantor shall be released
from its Subsidiary Guarantee upon compliance with certain conditions.
The Indenture contains provisions for Defeasance at any time of the
entire indebtedness of this Security or certain restrictive covenants and Events
of Default with respect to this Security, in each case upon compliance with
certain conditions set forth in the Indenture.
If an Event of Default with respect to Securities of this series shall
occur and be continuing, the principal of the Securities of this series may be
declared due and payable in the manner and with the effect provided in the
Indenture.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series to be
affected under the Indenture at any time by the Company and the Trustee with the
consent of the Holders of a majority in principal amount of the Securities at
the time Outstanding of each series to be affected. The Indenture also contains
provisions permitting the Holders of specified percentages in principal amount
of the Securities of each series at the time Outstanding, on behalf of the
Holders of all Securities of such series, to waive compliance by the Company
with certain provisions of the Indenture and certain past defaults under the
Indenture and their consequences. Any such consent or waiver by the Holder of
this Security shall be conclusive and binding upon such Holder and upon all
future Holders of this Security and of any Security issued upon the registration
of transfer hereof or in exchange herefor or in lieu hereof, whether or not
notation of such consent or waiver is made upon this Security.
As provided in and subject to the provisions of the Indenture, the
Holder of this Security shall not have the right to institute any proceeding
with respect to the Indenture or for the appointment of a receiver or trustee or
for any other remedy thereunder, unless such Holder shall have previously given
the Trustee written notice of a continuing Event of Default with respect to the
Securities of this series, the Holders of not less than 25% in principal amount
of the Securities of this series at the time Outstanding shall have made written
request to the Trustee to institute proceedings in respect of such Event of
Default as Trustee and offered the Trustee reasonable indemnity, and the Trustee
shall not have received from the Holders of a majority in principal amount of
Securities of this series at the time Outstanding a direction inconsistent with
such request, and shall have failed to institute any such
-4-
44
proceeding, for 60 days after receipt of such notice, request and offer of
indemnity. The foregoing shall not apply to any suit instituted by the Holder of
this Security for the enforcement of any payment of principal hereof or any
premium or interest hereon on or after the respective due dates expressed
herein.
No reference herein to the Indenture and no provision of this Security
or of the Indenture shall alter or impair the obligation of the Company, which
is absolute and unconditional, to pay the principal of and any premium and
interest on this Security at the times, place and rate, and in the coin or
currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this Security is registrable in the Security
Register, upon surrender of this Security for registration of transfer at the
office or agency of the Company in any place where the principal of and any
premium and interest on this Security are payable, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Security Registrar duly executed by, the Holder hereof or his
attorney duly authorized in writing, and thereupon one or more new Securities of
this series and of like tenor, of authorized denominations and for the same
aggregate principal amount, will be issued to the designated transferee or
transferees.
The Securities of this series are issuable only in registered form
without coupons in denominations of $1,000 and any integral multiple thereof. As
provided in the Indenture and subject to certain limitations therein set forth,
Securities of this series are exchangeable for a like aggregate principal amount
of Securities of this series and of like tenor of a different authorized
denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer
or exchange, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name this Security is registered as the owner hereof for all
purposes, whether or not this Security be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
All terms used in this Security which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
-5-
45
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Security purchased in its entirety
pursuant to Section 306 or 309 of the First Supplemental Indenture, check the
box:
[ ]
If you want to elect to have only a part of this Security purchased
pursuant to Section 306 or 309 of the First Supplemental Indenture, state the
amount: $
Dated: Your Signature:
-------------------------------------------------
(Sign exactly as name appears on the other side of this Security)
Signature Guarantee:
---------------------------------------------------------
(Signature must be guaranteed by an "eligible guarantor
institution" meeting the requirements of the Registrar,
which requirements include membership or participation in a
"signature guarantee program" as may be determined by the
Registrar, all in accordance with the Securities Exchange
Act of 1934, as amended)
-6-
46
ASSIGNMENT FORM
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s)
and transfer(s) unto
Please Insert Social Security or Employer
Identification Number of Assignee
-----------------------------------------------------
-----------------------------------------------------
--------------------------------------------------------------------------------
Please Print or Typewrite Name and Address,
Including Postal Zip Code, of Assignee
--------------------------------------------------------------------------------
the within Senior Subordinated Note and all rights thereunder, and hereby
irrevocably constituting and appointing
------------------------------------------------------------------------attorney
to Transfer said Senior Subordinated Note on the books of the Company, with full
power of substitution in the premises.
Dated: Signature:
----------------------- -----------------------------------
Notice: The Signature to this assignment must correspond with the name as it
appears upon the face of the within note in every particular, without
alteration or enlargement of any change whatever.
Signature Guarantee:
--------------------------------------------------------
(Signature must be guaranteed by an "eligible guarantor
institution" meeting the requirements of the Registrar,
which requirements include membership or participation in a
"signature guarantee program" as may be determined by the
Registrar, all in accordance with the Securities Exchange
Act of 1934, as amended)
-7-
47
SUBSIDIARY GUARANTEE
For value received, each of the Subsidiary Guarantors named (or deemed
herein to be named) below hereby jointly and severally fully and unconditionally
guarantees to the Holder of the Security upon which this Subsidiary Guarantee is
endorsed, and to the Trustee on behalf of such Holder, the due and punctual
payment of the principal of (and premium, if any) and interest on such Security
when and as the same shall become due and payable, whether at the Stated
Maturity, by acceleration, call for redemption, offer to purchase or otherwise,
according to the terms thereof and of the Indenture referred to therein and to
cover all the rights of the Trustee under Section 607. In case of the failure of
the Company punctually to make any such payment, each of the Subsidiary
Guarantors hereby jointly and severally agrees to cause such payment to be made
punctually when and as the same shall become due and payable, whether at the
Stated Maturity or by acceleration, call for redemption, offer to purchase or
otherwise, and as if such payment were made by the Company.
Each of the Subsidiary Guarantors hereby jointly and severally agrees
that its obligations hereunder shall be absolute and unconditional, irrespective
of, and shall be unaffected by, the validity, regularity or enforceability of
such Security or the Indenture, the absence of any action to enforce the same or
any release, amendment, waiver or indulgence granted to the Company or any other
guarantor, or any consent to departure from any requirement of any other
guarantee of all or of any of the Securities of this series, or any other
circumstances which might otherwise constitute a legal or equitable discharge or
defense of a surety or guarantor; provided, however, that, notwithstanding the
foregoing, no such release, amendment, waiver or indulgence shall, without the
consent of such Subsidiary Guarantor, increase the principal amount of such
Security, or increase the interest rate thereon, or alter the Stated Maturity
thereof. Each of the Subsidiary Guarantors hereby waives the benefits of
diligence, presentment, demand of payment, any requirement that the Trustee or
any of the Holders protect, secure, perfect or insure any security interest in
or other lien on any property subject thereto or exhaust any right or take any
action against the Company or any other Person or any collateral, filing of
claims with a court in the event of insolvency or bankruptcy of the Company, any
right to require a proceeding first against the Company, protest or notice with
respect to such Security or the indebtedness evidenced thereby and all demands
whatsoever, and covenants that this Subsidiary Guarantee will not be discharged
except by complete performance of the obligations contained in such Security and
in this Subsidiary Guarantee. Each Subsidiary Guarantor agrees that if, after
the occurrence and during the continuance of an Event of Default with respect to
Securities of this series, the Trustee or any of the Holders are prevented by
applicable law from exercising their respective rights to accelerate the
maturity of the Securities of this series, to collect interest on the Securities
of this series, or to enforce or exercise any other right or remedy with respect
to the Securities of this series, such Subsidiary Guarantor agrees to pay to the
Trustee for the account of the Holders, upon demand therefor, the amount that
would otherwise have been due and payable had such rights and remedies been
permitted to be exercised by the Trustee or any of the Holders.
The indebtedness of each Subsidiary Guarantor evidenced by this
Subsidiary Guarantee is, to the extent provided in the Indenture, subordinate in
right of payment to the prior payment in full of all Senior Debt of such
Subsidiary Guarantor, and the Subsidiary Guarantee of each Subsidiary Guarantor
is issued subject to the provisions of the Indenture with respect thereto.
-8-
48
No reference herein to the Indenture and no provision of this
Subsidiary Guarantee or of the Indenture shall alter or impair the Subsidiary
Guarantee of any Subsidiary Guarantor, which is absolute and unconditional, of
the due and punctual payment of the principal (and premium, if any) and interest
on the Security upon which this Subsidiary Guarantee is endorsed.
Each Subsidiary Guarantor shall be subrogated to all rights of the
Holder of this Security against the Company in respect of any amounts paid by
such Subsidiary Guarantor on account of this Security pursuant to the provisions
of its Subsidiary Guarantee or the Indenture; provided, however, that such
Subsidiary Guarantor shall not be entitled to enforce or to receive any payments
arising out of, or based upon, such right of subrogation until the principal of
(and premium, if any) and interest on this Security and all other Securities of
this series issued under the Indenture shall have been paid in full.
This Subsidiary Guarantee shall remain in full force and effect and
continue to be effective should any petition be filed by or against the Company
for liquidation or reorganization, should the Company become insolvent or make
an assignment for the benefit of creditors or should a receiver or trustee be
appointed for all or any part of the Company's assets, and shall, to the fullest
extent permitted by law, continue to be effective or be reinstated, as the case
may be, if at any time payment and performance of the Securities of this series
is, pursuant to applicable law, rescinded or reduced in amount, or must
otherwise be restored or returned by any Holder of the Securities of this
series, whether as a "voidable preference," "fraudulent transfer," or otherwise,
all as though such payment or performance had not been made. In the event that
any payment, or any part thereof, is rescinded, reduced, restored or returned,
the Securities of this series shall, to the fullest extent permitted by law, be
reinstated and deemed reduced only by such amount paid and not so rescinded,
reduced, restored or returned.
The Subsidiary Guarantors or any particular Subsidiary Guarantor shall
be released from this Subsidiary Guarantee upon the terms and subject to certain
conditions provided in the Indenture.
By delivery of a Supplemental Indenture to the Trustee in accordance
with the terms of the Indenture, each Person that becomes a Subsidiary Guarantor
after the date of first issuance of the Securities of this series will be deemed
to have executed and delivered this Subsidiary Guarantee for the benefit of the
Holder of the Security upon which this Subsidiary Guarantee is endorsed with the
same effect as if such Subsidiary Guarantor was named below and has executed and
delivered this Subsidiary Guarantee.
All terms used in this Subsidiary Guarantee which are defined in the
Indenture referred to in the Security upon which this Subsidiary Guarantee is
endorsed shall have the meanings assigned to them in such Indenture.
This Subsidiary Guarantee shall not be valid or obligatory for any
purpose until the certificate of authentication on the Security upon which this
Subsidiary Guarantee is endorsed shall have been executed by the Trustee under
the Indenture by manual signature.
Reference is made to the Indenture for further provisions with respect
to this Subsidiary Guarantee.
-9-
49
This Subsidiary Guarantee shall be governed by and construed in
accordance with the laws of the State of New York.
IN WITNESS WHEREOF, each of the Subsidiary Guarantors has caused this
Subsidiary Guarantee to be duly executed.
Southwest Toyota, Inc.
SMC Luxury Cars, Inc.
XxXxxx Automotive Group, Inc.
Courtesy Nissan, Inc.
Group 1 Ford, Inc.
XxXxxxxx Dodge, Inc.
Xxxxx Automotive Group, Inc.
Xxxx Xxxxx Automotive-H, Inc.
Xxxx Xxxxx Automotive-N, Inc.
Xxxx Xxxxx Autoplaza, Inc.
Xxxx Xxxxx Autoplex, Inc.
Xxxx Xxxxx Autoplex Buick, Inc.
Xxxx Xxxxx Autoplex Dodge, Inc.
Xxxx Xxxxx Autoplex-German Imports, Inc.
Xxxx Xxxxx Autoplex-V, Inc.
Xxxx Xxxxx L/M, Inc.
Xxxx Xxxxx GM, Inc.
Round Rock Nissan, Inc.
Xxxxx, Liu & Xxxxxx, Inc.
Xxxxx, Liu & Xxxx, Inc.
Town North Imports, Inc.
Town North Nissan, Inc.
Town North Suzuki, Inc.
Xxx Xxxxxx Automotive-A, Inc.
Xxx Xxxxxx Automotive-H, Inc.
Xxx Xxxxxx Chevrolet, Inc.
Xxx Xxxxxx Dodge, Inc.
Xxx Xxxxxx Motors, Inc.
Xxx Xxxxxx Nissan, Inc.
Xxxxxx Automotive Group, Inc.
Xxxxxx Pontiac-GMC, Inc.
Foyt Motors, Inc.
Kingwood Motors-H, Inc.
Xxxxx Ford, Inc.
Courtesy Ford, Inc.
Perimeter Ford, Inc.
Flamingo Ford, Inc.
-10-
50
X. Xxxxxxx Management Group, Inc.
MMK Interests, Inc.
Highland Autoplex, Inc.
Xxxxxxx Texas Management, Inc.
Casa Chevrolet Inc.
Casa Chrysler Plymouth Jeep Inc.
Xxxxx Automotive Group, Inc.
Xxxx Chevrolet Co.
Xxxx Auto Group, Inc.
Xxx Xxxxxx Automotive-East, Inc.
GPI Atlanta, Inc.
Xxxx Xxxxx Autoplex-A, Inc.
Xxxx Xxxxx Motors, Inc.
Xxxx Xxxxx Imports, Inc.
Sunshine Buick Pontiac GMC Truck, Inc.
Lubbock Automotive-M, Inc.
Lubbock Auto Group, Inc.
Group 1 Realty, Inc.
Prestige Chrysler Plymouth Northwest, Ltd.
Prestige Chrysler Plymouth South, Ltd.
Xxxxxxx Chrysler Plymouth Jeep Eagle, Ltd.
Prestige Xxxxxxx, Inc.
Xxxxxxx Holdings, Inc.
Group 1 Holdings-T, Inc.
Group 1 Holdings-GM, Inc.
Xxxxxxx Xxxx, Ltd.
Lubbock Motors-F, Ltd.
Lubbock Motors-T, Ltd.
Rockwall Automotive-F, Ltd.
Amarillo Motors-C, Ltd.
Amarillo Motors-J, Ltd.
Amarillo Motors-F, Ltd.
Chapparal Dodge, Ltd.
Colonial Chrysler-Plymouth, Ltd.
Delaware Acquisition-CC, L.L.C.
Delaware Acquisition-F, L.L.C.
Delaware Acquisition-T, L.L.C.
Delaware Acquisition-GM, L.L.C.
By
---------------------------------------
Title:
-11-
