Exhibit 4.2
SUPPLEMENTAL INDENTURE
SUPPLEMENTAL INDENTURE (this "SUPPLEMENTAL INDENTURE"), dated as of
April 30, 2002, among AutoNation, Inc., a Delaware corporation (the "COMPANY"),
AutoNation Corporate Management, LLC, AutoNation Motors Holding Corp.,
AutoNation Imports of Arapahoe, Inc., Westmont A. Imports, Inc. f/k/a Maroone
Oldsmobile II, Inc., Westmont B. Imports, Inc., Westmont M. Imports, Inc.,
Naperville Imports, Inc., Tinley Park A. Imports, Inc. f/k/a Republic of
Rochester, Inc., Tinley Park J. Imports, Inc. f/k/a Orlando Imports, Inc.,
Tinley Park V. Imports, Inc. f/k/a Emich Lincoln-Mercury, Inc., AutoNation Fort
Worth Motors, Ltd., AutoNation GM GP, LLC f/k/a Emich Lincoln-Mercury, LLC,
AutoNation GM LP, LLC f/k/a Flemington Land Rover, LLC, AN Fremont Luxury
Imports, Inc. f/k/a ▇▇▇▇▇ Kia of Scottsdale, Inc., AutoNation Imports of Katy,
L.P. f/k/a AutoNation Chrysler Plymouth Jeep of North Houston, L.P., AutoNation
Imports Katy GP, Inc. f/k/a AutoNation Chrysler Plymouth GP, Inc., AutoNation
Imports Katy LP, Inc. f/k/a AutoNation Chrysler Plymouth LP, Inc. and White Bear
Auto Center, LLC f/k/a ▇▇▇▇-▇▇▇▇▇▇▇▇▇ Ford, LLC (each a "GUARANTEEING
SUBSIDIARY" and collectively, the "GUARANTEEING SUBSIDIARIES"), each of which is
a direct or indirect subsidiary of AutoNation, Inc. (or its permitted successor)
and ▇▇▇▇▇ Fargo Bank Minnesota, National Association, as trustee under the
indenture referred to below (the "TRUSTEE").
W I T N E S S E T H
WHEREAS, the Company has heretofore executed and delivered to the
Trustee the indenture (as amended, the "INDENTURE"), dated as of August 10,
2001, providing for the issuance of 9% Senior Notes due 2008 (the "NOTES");
WHEREAS, the Indenture provides that each Guaranteeing Subsidiary shall
execute and deliver to the Trustee a supplemental indenture pursuant to which
each Guaranteeing Subsidiary shall unconditionally guarantee all of the
Company's obligations under the Notes and the Indenture on the terms and
conditions set forth herein (the "GUARANTEE"); and
WHEREAS, pursuant to Section 9.1 of the Indenture, the Trustee is
authorized to execute and deliver this Supplemental Indenture.
NOW THEREFORE, in consideration of the foregoing and for other good and
valuable consideration, the receipt of which is hereby acknowledged, the
Company, the Guaranteeing Subsidiaries and the Trustee mutually covenant and
agree for the equal and ratable benefit of the Holders of the Notes as follows:
1. CAPITALIZED TERMS. Capitalized terms used herein without definition
shall have the meanings assigned to them in the Indenture.
2. AGREEMENT TO GUARANTEE. Each Guaranteeing Subsidiary hereby agrees
as follows:
(a) To jointly and severally Guarantee to each Holder of a
Note authenticated and delivered by the Trustee and to
the Trustee and its successors and assigns,
irrespective of the validity and enforceability of the
Indenture, the Notes or the obligations of the Company
hereunder or thereunder, that:
(i) the principal of and interest on the Notes
will be promptly paid by the Company in full
when due, whether at maturity, by
acceleration, redemption or otherwise, and
interest on the overdue principal of and
interest on the Notes, if any, if lawful,
and all other obligations of the Company to
the Holders or the Trustee hereunder or
thereunder will be promptly paid by the
Company in full or performed by the Company,
all in accordance with the terms hereof and
thereof; and
(ii) in case of any extension of time of payment
or renewal of any Notes or any of such other
obligations, that same will be promptly paid
by the Company in full when due or performed
by the Company in accordance with the terms
of the extension or renewal, whether at
stated maturity, by acceleration or
otherwise.
Failing payment when due by the Company of any amount
so guaranteed or any performance so guaranteed which
failure continues for three days after demand
therefor is made to the Company for whatever reason,
the Guarantors shall be jointly and severally
obligated to pay the same immediately.
(b) The obligations hereunder shall be unconditional,
irrespective of the validity, regularity or
enforceability of the Notes or the Indenture, the
absence of any action to enforce the same, any waiver
or consent by any Holder of the Notes with respect to
any provisions hereof or thereof, the recovery of any
judgment against the Company, any action to enforce
the same or any other circumstance which might
otherwise constitute a legal or equitable discharge or
defense of a Guarantor.
(c) The following is hereby waived: diligence,
presentment, demand of payment (except as specifically
provided in (a) above), filing of claims with a court
in the event of insolvency or bankruptcy of the
Company, any right to require a proceeding first
against the Company, protest, notice and all demands
(except as specifically provided in (a) above)
whatsoever.
(d) This Guarantee shall not be discharged except (i) by
complete performance of the obligations contained in
the Notes and the Indenture or (ii) as provided in
Section 5 hereof.
(e) If any Holder or the Trustee is required by any court
or otherwise to return to the Company, the Guarantors,
or any Custodian, Trustee, liquidator or other similar
official acting in relation to either the Company or
the Guarantors, any amount paid by either to the
Trustee or such Holder, this Guarantee, to the extent
theretofore discharged, shall be reinstated in full
force and effect.
(f) The Guaranteeing Subsidiaries shall not be entitled to
any right of subrogation in relation to the Holders in
respect of any obligations guaranteed hereby until
payment in full of all obligations guaranteed hereby.
(g) As between the Guarantors, on the one hand, and the
Holders and the Trustee, on the other hand, (x) the
maturity of the obligations guaranteed hereby may be
accelerated as provided in Article 6 of the Indenture
for the purposes of this Guarantee, notwithstanding
any stay, injunction or other prohibition preventing
such acceleration in respect of the obligations
guaranteed hereby, and (y) in the event of any
declaration of acceleration of such obligations as
provided in Article 6 of the Indenture, such
obligations (whether or not due and payable) shall
forthwith become due and payable by the Guarantors for
the purpose of this Guarantee, failing payment when
due by the Company which failure continues for three
days after demand therefor is made to the Company.
(h) The Guarantors shall have the right to seek
contribution from any non-paying Guarantor so long as
the exercise of such right does not impair the rights
of the Holders under the Guarantee.
3. EXECUTION AND DELIVERY. Each Guaranteeing Subsidiary agrees that the
Guarantees shall remain in full force and effect notwithstanding any failure to
endorse on each Note a notation of such Guarantee.
4. GUARANTEEING SUBSIDIARIES MAY CONSOLIDATE, ETC. ON CERTAIN TERMS.
Each Guaranteeing Subsidiary may not sell or otherwise dispose of all or
substantially all of its assets, or consolidate with or merge with or into
(whether or not such Guarantor is the surviving Person) another corporation,
2
Person or entity whether or not affiliated with such Guarantor except to the
extent limited by the provisions set forth in the Indenture, including, without
limitation, Section 5.1 of the Indenture.
5. RELEASES. The Guarantee of each Guaranteeing Subsidiary will be
released in accordance with the provisions set forth in the Indenture,
including, without limitation, Section 10.4 of the Indenture. The Trustee will
provide any written confirmation or evidence of the termination of such
Guarantee as reasonably required by the Company. Any Guarantor not released from
its obligations under its Guarantee shall remain liable for the full amount of
principal of and interest on the Notes and for the other obligations of any
Guarantor under the Indenture as provided in Article 10 of the Indenture.
6. NO RECOURSE AGAINST OTHERS. No director, officer, employee,
incorporator, stockholder or agent of any of the Guaranteeing Subsidiaries, as
such, shall have any liability for any obligations of the Company or any
Guaranteeing Subsidiary under the Notes, the Indenture, any Guarantees or this
Supplemental Indenture or for any claim based on, in respect of, or by reason
of, such obligations or their creation. Each Holder of Notes by accepting a Note
waives and releases all such liability. The waiver and release are part of the
consideration for issuance of the Notes. Such waiver may not be effective to
waive liabilities under the federal securities laws.
7. NEW YORK LAW TO GOVERN. THE INTERNAL LAW OF THE STATE OF NEW YORK
SHALL GOVERN AND BE USED TO CONSTRUE THIS SUPPLEMENTAL INDENTURE.
8. COUNTERPARTS. The parties may sign any number of copies of this
Supplemental Indenture. Each signed copy shall be an original, but all of them
together represent the same agreement.
9. EFFECT OF HEADINGS. The Section headings herein are for convenience
only and shall not affect the construction hereof.
10. THE TRUSTEE. The Trustee shall not be responsible in any manner
whatsoever for or in respect of the validity, legality or sufficiency of this
Supplemental Indenture or for or in respect of the recitals contained herein,
all of which recitals are made solely by the Guaranteeing Subsidiaries and the
Company.
3
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed and attested, all as of the date first above
written.
AUTONATION, INC.
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Senior Vice President, General
Counsel and Secretary
AUTONATION CORPORATE MANAGEMENT,
LLC
AUTONATION GM GP, LLC F/K/A EMICH
LINCOLN-MERCURY, LLC
AUTONATION GM LP, LLC F/K/A
FLEMINGTON LAND ROVER, LLC
AUTONATION MOTORS HOLDING CORP.
AUTONATION IMPORTS OF ARAPAHOE, INC.
WESTMONT A. IMPORTS, INC. F/K/A MAROONE
OLDSMOBILE II, INC.
WESTMONT B. IMPORTS, INC.
WESTMONT M. IMPORTS, INC.
NAPERVILLE IMPORTS, INC.
TINLEY PARK A. IMPORTS, INC. F/K/A
REPUBLIC OF ROCHESTER, INC.
TINLEY PARK J. IMPORTS, INC. F/K/A ORLANDO
IMPORTS, INC.
TINLEY PARK V. IMPORTS, INC. F/K/A EMICH
LINCOLN-MERCURY, INC.
AN FREMONT LUXURY IMPORTS, INC. F/K/A
▇▇▇▇▇ KIA OF SCOTTSDALE, INC.
AUTONATION IMPORTS KATY LP, INC. F/K/A AUTONATION
CHRYSLER PLYMOUTH LP, INC.
AUTONATION IMPORTS KATY GP, INC. F/K/A AUTONATION
CHRYSLER PLYMOUTH GP, INC.
WHITE BEAR AUTO CENTER, LLC F/K/A ▇▇▇▇-▇▇▇▇▇▇▇▇▇
FORD, LLC
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President and Secretary
AUTONATION FORT WORTH MOTORS, LTD.
By: AUTONATION GM GP, LLC F/K/A EMICH
LINCOLN-MERCURY, LLC
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President and Secretary
4
AUTONATION IMPORTS OF KATY, L.P. F/K/A
AUTONATION CHRYSLER PLYMOUTH JEEP
OF NORTH HOUSTON, L.P.
BY: AUTONATION IMPORTS KATY GP, INC.
F/K/A AUTONATION CHRYSLER
PLYMOUTH GP, INC.
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President and Secretary
▇▇▇▇▇ FARGO BANK MINNESOTA, NATIONAL
ASSOCIATION, AS TRUSTEE
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
5
